sylvania, in which it is held that a foreign executor residing in Pennsylvania may be sued therein by a resident creditor of decedent. The court reviews the Pennsylvania cases only.

MUNICIPAL CORPORATIONS ICE AND SNOW

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ON SIDEWALK LIABILITY.-In Huston v. City of Council Bluffs, 69 N. W. Rep. 1130, decided by the Supreme Court of Iowa, it was held that where snow, accumulated on a walk from natural causes, becomes uneven by travel, or where a walk is so constructed as to dam up melted snow flowing from adjoining land, and it freezes into ridges, a person injured thereon, while using ordinary care, may recover from the city, if it permitted such condition to exist for an unreasonable time after the same became known to the authorities, or might have been known by reasonable care. It was also held that in an action against a city for injuries received in falling on an icy sidewalk, the official record of the United States weather bureau, taken at a town four miles from the place of injury, is admissible to show the temperature and snowfall during the month when the accident occurred. On the first point the court said: Evidence was adduced tending to support the allegations of this petition, and the court below gave the following instructions with reference thereto: "Now, it may be stated as a general rule that the mere fact that snow or sleet has fallen upon the sidewalk from the clouds, and thereby rendered the sidewalk slippery and difficult to pass over, would not make the city liable therefor, even though such ice and snow should remain upon the walk for an unrea sonable length of time after the officers of the city, whose duties require them to look after such matters, had notice of its existence, or after they, in the exercise of reasonable care in performing their duties, ought to have known of its existence; but this rule relates only to the natural conditions resulting from rain or sleet falling and freezing upon the walk, or snow accumulating upon the walk from natural causes. Where, after such ice or snow has thus ac cumulated, if by reason of persons traveling over same. or if, from other causes, as from ice or snow thawing and flowing down upon the walk from other lands, the surface of the snow or ice upon the walk becomes rough, or ridged, or rounded in form, or lies at an angle, or slanting, to the plane surface of the walk, so that it becomes difficult and dangerous for persons traveling on foot to pass over same when ex. ercising ordinary care, or if the walk is constructed in such manner as not to permit the natural flow of the water and thawing snow from lands adjoining, but dams same upon the walk, and holds same there until it freezes, and the walk becomes dangerous, by reason thereof, to persons using ordinary care in attempting to pass over same, or, by reason of snow or ice having accumulated on the walk from natural causes, the flowing water and snow from adjoining

lands are dammed up and held upon the walk, and frozen there, and by reason thereof make the walk dangerous for persons using ordinary care in passing over the same on foot, then the city becomes liable for injuries caused by such obstruction, provided the person injured did not contribute to his injury by negligence on his part, and the obstruction bas existed for an unreasonable length of time after the same became known to the city authorities, or ought to have been known to them in the exercise of reasonable care." Other instructions, embodying the same thought, but applying it more specifically to the facts of the case, were given by the court in his charge. And of all these the defendant complains. It is contended that the case falls within the rule announced in the case of Broburg v. City of Des Moines, 63 Iowa, 523, 19 N. W. Rep. 340. In that case we said: "The mere fact that a street is in a dangerous condition because of ice and snow, rendering the walks slippery by reason of the operation of nat ural causes, should not render the city liable, even if such ice and snow are not removed in a reasonable time. But when it becomes, by reason of the travel thereon or other causes, rounded or in ridges, then it may be that the city should be required to remove such ice and snow." In the same case we cited the rule for such cases from the opinion in Cook v. City of Milwaukee, 24 Wis. 274, as follows: "When ice or snow is suffered to remain upon a sidewalk in such an uneven and rounded form that a person cannot walk over it, using due care, without danger of fall. ing down, that it seems to constitute a defect for which the city or town is liable." It seems to us that the instructions given by the lower court are in strict accord with the rules announced in the cited cases. In that case the snow and ice complained of was in the same condition as nature placed it. The case of Collins v. City of Council Bluffs, 32 Iowa, 324, is quite like the one at bar. There, as here, the snow had not been removed from the pavement. "It was to some extent thawed during the daytime, and, as there was a great amount of travel along the sidewalk, ・ ・ ・ the pavement became covered with ice, uneven and irregular upon its surface, thus rendering the locality difficult and unsafe for foot passengers." There, as here, plaintiff had no knowledge of the obstruction, and the jury was justified in finding that he was exercising proper care and diligence when the accident happened. With this state of facts in mind, we said: "The negligent permission of an obstruction in a street from snow and ice being deposited there from natural causes, whereby injury results to a traveler, will render the city liable." These cases are in line with the almost universal voice of authority. See Adams v. Inhabitants of Chicopee, 147 Mass. 440, 18 N. E. Rep. 231; Fitzgerald v. Inhabitants of Woburn, 109 Mass. 204; City of Boulder v. Niles (Colo. Sup.), 12 Pac. Rep. 632; Dill. Mun. Corp. (4th Ed.) sec. 1006; Elliott, Roads & S., pp. 458 460; Todd v. City of Troy, 61 N. Y. 506, and note in annotated edition by Irving Browne; Hill v. City of Fond du Lac, 56 Wis. 242, 14 N. W. Rep. 25; Stanton v. City of Springfield, 12 Allen, 566.

LIFE INSURANCE INSURABLE INTEREST INTENDED WIFE. The Court of Civil Appeals of Texas decides in Taylor v. Travelers' Ins. Co., 39 S. W. Rep. 185, that a woman has an insurable interest in the life of her intended husband. The court says in part:

The main question of law, presented in various forms by the assignments of error, is: Did the engagement of the appellee to marry Allen Taylor give her an insurable interest in his life, and entitle her to recover upon a policy issued on it, payable to herself? Before entering upon the consideration of this question, we will say that, outside of this State, the right of a man to insure his own life, and make the policy payable to whomsoever he chooses, irrespective of the question of insurable interest, seems never to have been doubted. Insurance Co. v. Schaefer, 94 U. S. 457; Insurance Co. v. France, Id. 561; Goodrich v. Treat, 3 Colo. 408; Lemon v. Insurance Co., 38 Conn. 294; Fairchild v. Association, 51 Vt. 613; Assurance Co. v. Craigen, 6 Russ. & G. 440; Association v. Houghton, 103 Ind. 286, 2 N. E. Rep. 763; Association v. Blue, 120 Ill. 121, 11 N. E. Rep. 331; Heinlein v. Insurance Co. (Mich.), 59 N. W. Rep. 615; Insurance Co. v. Barr, 16 C. C. A. 51, 68 Fed. Rep. 873. This, however, appears to be an open question in Texas. Mayher v. Insurance Co.. 87 Tex. 168, 27 S. W. Rep. 124; Heinlein v. Insurance Co. (Mich.), 25 Lawy. Rep. Ann. 630, note, 59 N. W. Rep. 615. Under our view of this case, it is unnecessary for us to express any opinion on this question, and we have only referred to it for the purpose of saying that, by basing our opinion upon the ground of an insurable interest of the appellee in the life of the deceased, we do not which to be understood as repudiating a prin ciple elsewhere so well established. Whenever there is such a relationship that the insurer has a legal claim on the insured for services or support, or when, from the personal relation between them, the former has a reasonable right to expect some pecuniary ad. vantage from the continuance of the life of the other, or to fear loss from his death, an insurable interest exists. May, Ins. (3d Ed.) § 102a. That a woman has a reasonable right to expect some pecuniary advantage from the continuance of the life of him to whom she is engaged to be married is beyond question. The consummation of the contract of marriage is, of all contracts, by woman most devoutly to be wished. Social position, wealth, happiness, though frequently never realized, are its anticipated concomitants. Its breach by her fiancee gives her an action against him, entitling her to recover pecuniary compensation for the advantages she has lost from its non-performance. When it is terminated by his death, she is entitled to recover on an insurance policy that her intended husband has providently taken in her favor on his life, to indemnify her for the loss she has thereby sustained. Chisholm v. Insurance Co., 52 Mo. 213; May, Ins. § 107a; Richards Ins. § 27.

NEGLIGENCE-INJURY TO MINOR.-In Holbrook v. Aldrich, decided by the Supreme Judicial Court of Massachusetts it was held that where a child seven years old entered a shop with her father, and, while he was paying for goods bought, passed her hand in a coffee grinder and was injured, the owner of the store was not liable. The court says:

This is an action for loss of the plaintiff's fingers, which were cut off by a coffee grinder in the defendants' shop. The plaintiff, a minor less than seven years old, entered the shop with her father, who was going to make a purchase. She intended to buy some candy, but in the first place accompanied her father to a part of the shop at some distance from the candy

counter, and near to the coffee grinder. He let go her hand to get his money. She went over to the coffee grinder, put her hand up the spout out of which the ground coffee came, hoping to get some whole kernels, and lost her fingers. The judge directed a verdict for the defendants, and the plaintiff excepted.

We are of the opinion that the direction was right. If the decision were to be put on the narrowest pos sible ground it might be said that at the moment of the accident the plaintiff was not within the scope of the defendants' implied invitation, and therefore was entitled to no protection against such possibilities of harm to herself. But, even if she had been buying coffee, we should regard the rule as the same. The defendants' invitation in that case would have bound them to due care for the safety of those walking in the neighborhood while simply moving about. But it would not have bound them to look out for or to prevent wrongful acts, on the ground that the acts, if done, might hurt the actor. Temptation is not al ways invitation. As the common law is understood by the most competent authorities, it does not ex cuse a trespass because there is a temptation to com. mit it, or hold property owners bound to contemplate the infraction of property rights because the tempta tion to untrained minds to infringe them might have been foreseen. McEachern v. Railroad Co., 150 Mass. 515, 23 N. E. Rep. 231; Daniels v. Railroad Co., 154 Mass. 349, 28 N. E. Rep. 283; Gay v. Railway Co., 159 Mass. 238, 34 N. E. Rep. 186. The case is similar in prin ciple to McGuiness v. Butler, 159 Mass. 233, 34 N. E. Rep. 259, and to Mangan v. Atterton, L. R. 1 Exch. 239, which, notwithstanding the observations in Clark v. Chambers, 3 Q. B. Div. 327, has been cited in this commonwealth repeatedly as unquestioned law. See, also, Hughes v. Macfie, 2 Hurl & C. 744. In Moyni han v. Whidden, 143 Mass. 287, 9 N. E. Rep. 645, which would have to yield to McGuiness v. Butler if there were a conflict, it seems to have been assumed that the plaintiff's touching the rope was not tortious.

INDICTMENT-OB

CRIMINAL PRACTICE SCENITY.-The Supreme Court of New York holds in People v. Kaufman, 43 N. Y. Supp. 1046, that an indictment for selling an ob scene book need not set out the obscene matter, nor describe the same in general terms, if it sufficiently identifies the book and states that the contents are too indecent to be placed on the record. To the same effect is the decision of the Supreme Court of the United States in Rosen v. United States (Jan., 1896, 16 Sup. Ct. Rep. 424). The following language from the opinion in the New York case, by Judge Barrett, forcibly states the argument in favor of the rule laid down:

The current of authority in this country favors an exception to the general rule of pleading in this clas of offenses. It may now fairly be said to be the settled American rule that it is not necessary to set out matter in an indictment which the grand jury asserts to be too obscene for recital. It is only necessary to identify the obscene book or publication sufficiently to apprise the defendant of what particular book or publication is intended, and to aver its obscenity,

giving as an excuse for not setting forth the obscene matter that it is so gross as to be offensive to the court, and improper to be placed upon its records. 1 Bish. New Cr. Proc., secs. 496, 561; Whart. Cr. Law, secs. 311, 2547; Com. v. Holmes, 17 Mass. 336; Com. v. Sharpless, 2 Serg. & R. 91; People v. Girardin, Man. 90; State v. Brown, 27 Vt. 619; McNair v. People, 89 Ill. 441: U. S. v. Clarke, 40 Fed. Rep. 825; State v. Smith, 17 R. I. 371, 22 Atl. Rep. 282. A rigid adherence, in such cases, to the ordinary rule that it must appear upon the face of the indictment that the printed matter was of the character charged, would, as was said in Com. v. Holmes, supra, "require that the public itself should give permanency and notoriety to indecency in order to punish it." Courts will not allow their records to be polluted by obscene matter. "To do this," observed the court in People v. Girardin, supra, "would be to require a court of justice to perpetuate and give notoriety to an indecent publication before its author could be visited for the great wrong he may have done to the public or to individuals." By the American doctrine and practice on this head, as Mr. Bishop points out, the avoiding of obscene allegation in the record, breeding corrup tion, is a necessity, excusing the setting out of the words. It is claimed, however, that the obscene matter should have been described, at least in general terms. The answer to this is that, if the matter is too obscene to be set out, it is also too obscene to be properly described. Au accurate description of obscene matter, however general, would itself be obscene. Nothing would be gained by condensation. How, indeed, can obscenity be condensed so as to be descriptive, and yet sufficiently decent to be placed upon record? We refer now to such a description as would enable the court,upon the face of the indictment to determine whether the book or publication is,in fact, obscene. Any merely general description would not be a description at all; that is, of the obscene words or matter. A mere description, for instance, of the subject-matter-of what, in general, the book is about -would not be a description of the actual obscenity charged. It would not apprise the defendant of the particular facts upon which the charge is based. It would simply be a means of identifying the book or publication, and that is as well, if not better, effected by stating its title. In none of the cases which have been referred to, with the possible exception of Com. v. Sharpless, did the indictment contain a description, either minute or general, of the nature of the ob scenity, and in none of them was a descriptive statement of the obscene matter required.

The rule to which we have referred is not in conliet with that laid down in People v. Hallenbeck, 52 How. Prac. 502, and People v. Danihy, 63 Hun, 579, 18 S. Y. Supp. 467. In neither of these cases was the omission of the obscene matter excused by the statement, in the indictment itself, that it was too gross to be placed upon record. We agree that, where this excuse is not made by the grand jury upon the face of the indictment, the obscene matter must be set out. Where, however, that excuse is thus made, we think the general rule should be modified in the interest of public decency; and the defendant must then be satisfied with such descriptive allegations as clearly identify the book or publication intended, together with the statement that the obscene matter which the grand jury deem too foul to be spread upon the record is contained therein. If anything more is requisite for the protection of the defendant's rights, it may well be left to the discretion of the court to compel the public prosecutor to furnish such further information or specification as may be needful.

RESPONSIBILITY OF INSURANCE COMPANY FOR MIS-STATEMENT OF ITS AGENT AS TO HEALTH OF THE INSURED.

Let us suppose the most common case of application for an insurance policy, that of one who has yielded to the importunities of a persistent agent and consented to take out a policy of insurance on his life. The agent, or perhaps, the insurance company's medical examiner, acts as amanuensis in writing answers to the numerous printed questions propounded in every policy as to the past and present health of the applicant. The applicant gives truthful and full answers to these questions, but the agent, accidentally or wilfully, writes down an incorrect answer to a question materially affecting the risk, or negligently omits to write an important part of the answer to such question. The agent reads over the answers to the applicant, who signs a certificate at the foot of the report, the declaration or warranty of the insured that he has given true answers to the questions and that they agree exactly with the foregoing, or the form may be that the answers written in the doctor's certificate are true, and according to the answers, bind him. In the policy there is a provision that no agent has authority to waive any of its conditions and a limitation of the company's responsibility for the acts of agents to simple receipt and delivery of the policy, and a declaration that for all other purposes, he is the agent of the insured. By the terms of the policy, it is to become void if any of the representations made prove untrue. Can the insurance company on discovering that material representations in the policy are true, or that material facts have been omitted, repudiate the act of its agent, cancel the policy and forfeit premiums paid it by the insured, and successfully defend an action by the insured for recovery of his premiums, on the grounds of breach of warranty and misrepresentation? The answer to this question depends on the status of the agent. few of the earlier decisions in Massachusetts, Pennsylvania, North Carolina and Alabama hold him to be the agent of the insured,' but the tendency of modern decisions in this country is steadily in the opposite direction and the weight of authority holds him to be

un

1 11 Am. & Eng. Ency. Law, 327, and cases cited.

A

the agent of the insurance company only and the knowledge of the agent in this case is regarded as the knowledge of the company.2 The powers of the agent are, prima facie, co-extensive with the business intrusted to his care and will not be narrowed by limitations not communicated to the person with whom he deals. The responsibility of the agent cannot be limited to the simple receipt and delivery of the policy by any proviso in the policy which so limits his authority and declares that for all other purposes, he is the agent of the assured. "There is no magic power residing in the words of that stipulation to transmute the real into the unreal. A device of mere words cannot in a case like this be imposed upon the view of a court of justice in the place of an actuality of fact and make the company and its agents the agents of the insured, their doings, the doings of the insured.”5 Mistakes and omissions of the agent in preparing the description, or otherwise, are treated as those of the company. Notice to the general agent is notice to the company, and this comprehends knowledge acquired of facts after the execution of the policy, which, unless waived, would avoid it, as well as all inaccuracies of statements by applicants and of the existence of other facts prior to the execution of the policy, the omission to state which would otherwise vitiate it."

Medical Examiner Agent of Company Only. The company's doctor is as fully the agent of the insurance company as is the general agent when he reports the answers of the applicant. In some States, he would, in

2 Ins. Co. v. Wilkinson, 13 Wall. 222, leading case; Ins. Co. v. Mahone, 21 Wall. 152; Andes Ins. Co. v. Fish, 71 Ill. 620, loc. cti.; N. E. F. & M. I. Co. v. Schettler, 38 Ill. 171, citing C. B. & Q. Ry. v. Coleman, 18 Ill. 299; German F. I. Co. v. Carrow, 21 I. A. 627.

3 13 Wall. 222; Merchants' Bank v. State Bank, 10 Wall. 644; Ins. Co. v. Kelly, 24 Ohio St. 345; Farmers' & Merchants' Ins. Co. v. Chestnut, 50 Ill. 118; Ætna Life Ins. Co. v. Maguire, 51 Ill. 342; Cont. Ins. Co. v. Ruckman, 127 Ill. 387.

4 13 Wall. 222, citing 25 Conn. 51, 8 Wright 259, 16 Wis. 241, 17 Iowa, 276; Lycoming, F. I. Co. v. Ward, 90 Ill. 545.

Com'l Ins. Co. v. Ives, 56 Ill. 402.

6 11 Am. & Eng. Ency. Law, 331, citing 4 Bosw. (N. Y.) 298, 23 Pa. St. 50, 109 Pa. St. 507, 33 Ohio St. 555, 21 Iowa, 185, 21 Mich. 246, 52 Me. 322.

7 11 Am. & Eng. Ency. Law, tit. Insurance, 328, citing many cases.

8 Grattan, Exee. v. Met. L. I. Co., 80 N. Y. 281; Grattan, Adm'x v. Met. L. I. Co., 92 N. Y. 271; Bentz v. N. W. Aid Assn., 41 N. W. Rep. 1037, and cases cited

the case of a company not incorporated in the State, come under the statutory definition of an insurance agent, as in Illinois, where the term agent includes "an acknowledged agent, surveyor, broker or any other person or persons who shall, in any manner, aid in transacting the insurance business of the company," and the word "acknowledged" has been held by the supreme court to have no qualifying effect.10 When either the medical examiner or the general agent takes upon himself the task of writing down the applicant's answers, a task he might well have required the applicant himself to perform, he also takes upon himself the duty of transcribing his answers correctly. If he intentionally neglects to do so, he is guilty of fraud, which arises from the suppression or concealment of facts known, as well as from actual misrepresentation."1

13

Admission of Parol Evidence. - The contract not expressing the real intention of the parties through the fraud, accident or mistake of the agent of the defendant com. pany, parol evidence is admissible on behalf of the plaintiff, in reply to the defendant company's charge of misrepresentation, not with a view to varying, contradicting or mod ifying the terms of the written policy but to show the actual transaction, i. e., what the applicant really stated to the agent and that the agent filled out the application with full knowledge of all the facts, and that, in a court of law12 and without reforming the con tract or asking for equitable relief. The insured, having paid his money, having acted in all things in good faith, fully disclosing to the company through its agent the necessary facts, or they being otherwise cognizant of them, and dispensing with any act on his part, and the insurer by his incompetent or reckless agent, having prepared the applica tion or survey so as not to speak the truth, or so as to omit important information, the company cannot be heard to urge the courts to make refined and almost impalpable distinctions to release them from their obliga. tions and permit them to hold the premiums the assured believed and was encouraged and

9 R. S. Ill. Hurd, 1891, ch. 73, Ins. § 22 and § 124. 10 Cont. Ins. Co. v. Ruckman, 127 Ill. 387. 11 Anson on Contracts, 146; Peek v. Gurney, L. R.

6 H. L. 403.

12 Ins. Co. v. Wilkinson, 13 Wall. 222, 71 Ill. 620. 13 80 N. Y. 281.