and turned around and went back towards the stone pile. The wagon was broken in turning, and ran on three wheels and the hub of the broken one, till the stone pile was reached, when the hub of the broken wheel struck it, overturning the wagon, and injuring the plaintiff. Our Brother WILLIAMS, in commenting upon the facts of the case, said: "The question is whether this road was obstructed so as to interfere with its ordinary use, and whether such obstruction caused the injuries. * The dragging axle drew horse and wagon to one side of the road, so that the axle struck the stone pile and the wagon was overturned and the plaintiff hurt. Now, the question is not whether a broader road would have enabled the plaintiff to pass along safely with her frightened horse and disabled wagon, but whether the road was broad enough and good enough for the purposes of a highway in that place. Was it safe for the purposes for which it was made, and did it accommodate the traveling public, using it in the ordinary manner, with reasonable facilities for travel? That an ac cident did happen is clear, but that does not settle our question. It is necessary to inquire, further, whether the accident was the natural or probable result of any act or omission of the township officers which rendered the highway unsafe for the purposes of travel, conducted in the ordinary manner and by the ordinary means of conveyance. As the evidence in the present case clearly shows that there was ample space leit for the roadway, and that the accident was not the natural or probable result of any act or omission of the borough officers which rendered the highway unsafe for the purposes of ordinary travel, it follows that the third point of the defendant should have been affirmed, requiring a binding instruction to find for the defendant. In the more recent case of Worrilow v. Upper Chichester Tp., 150 Pa. St. 622, 24 Atl. Rep. 85, the judgment below was reversed without a venire, upon the same course of reasoning as in Jackson Tp. v. Wagner. Our Brother HEYDRICK, reviewing the testimony, said: "To entitle the plaintiff to recover, it therefore not enough to show that he sustained an injury upon the highway, and that he was free from contributory negli gence. He must also show that the ordinary needs of public travel, conducted in the ordinary way upon this road, had not been anticipated and provided for, and that his injury was a natural and proba. ble consequence of the neglect of duty on the part of the township officers. Failing upon either point, he failed to make out his case." In the present case there was no testimony showing or tending to show that the accident which caused the plaintiff's injury was either the natural or probable consequence of the presence of the stone pile. The plaintiff himself said he always got along, in passing this place, without any difficulty, on account of the stone pile, and that his horses did not frighten at the stone pile, but at the shooting. Now, the shooting was an extraordinary circumstance for which the borough was in no sense responsible, and

was

against the consequences of which they were not bound to take precautions. As there was abundant space of roadway to accommodate all the passing travel, outside the wall, and no proof whatever that it was in any respect insufficient or defective in failing to provide for all the ordina ry travel conducted in the ordinary way. we are of opinion that there was nothing in the testimony upon which a recovery could be based. In the latest case of Schaeffer v. Jackson Tp., 24 Atl. Rep. 629, we have adhered to and again applied the doctrine of the two cases above cited. It follows that the judgment of the court below cannot be sustained. Judgment reversed.

(151 Pa. St. 351)

BOWMAN v. BRADLEY.

(Supreme Court of Pennsylvania. Oct. 3, 1892.) MASTER AND SERVANT-SERVANT'S POSSESSION OF PROPERTY TERMINATION OF EMPLOYMENT.

Where defendant, in consideration of a stated price per day and house rent, employed plaintiff and family to operate his farm, the pos session of the house is incident to the employment, and a termination of the latter also terminates the right to possess the house.

Appeal from court of common pleas, Dauphin county; SIMONTON, Judge.

Action in trespass by Henry Bowman against Patrick P. Bradley. Plaintiff had judgment, and defendant appeals. Reversed.

Samuel J. McCarrell and M. W. Jacobs, for appellant. Mumma & Shopp and A. J. Herr, for appellee.

WILLIAMS, J. The question on which this case turns is one of considerable practical importance, and in this state it seems to be an open one. The learned trial judge, finding no precedent in our own Reports to guide him, turned to the English courts, and followed what he believed to be the rule held by them. He stated at the same time that the question was one that could "only be settled by a decision of the supreme court." The facts on which the question arises are mainly undisputed. They show that Bradley owned a farm in Dauphin county containing about 29 acres. About 4 or 5 acres of this were occupied by a mill and pond operated by the owner. To care for the balance, and the stock upon it, he hired Bowman and his family. The farm work and the care of the cattle were to be looked after by Bowman. His wife was to milk the cows. His son was to deliver the milk each morning to Bradley in the city of Harrisburg. For this labor Bowman was to receive one dollar per day, and the use of a house upon the premises, to be occupied by himself and family. The only fact in dispute was the duration of the contract. The plaintiff alleged it was to continue for one year. The defendant asserted that it was terminable at his pleasure. He says he told Bowman: "I will try you, and on your terms, and if you don't suit me I will discharge you, and expect you to leave the premises on sight." Which was the true version was a question of fact for the jury. If they found with the defendant, that was an end of the plaintiff's case, unless by some arbi

trary rule of law the employe was turned into a tenant for years. On the other hand, if they found the contract was for one year, the plaintiff was entitled to recover, unless the defendant could show a sufficient reason for terminating it sooner. The first question, therefore, that presented itself on the trial, was over the nature and extent of Bowman's right to the house from which he was ousted by the defendant. Was that right an incident of the hiring, and dependent on the continuance of the relation of employer and employe, or had it an independent separate existence, so that he was to be treated as a tenant for years, with a right to remain in possession for one whole year, whether he remained in the employment of the owner or not? This was a question of law. The terms of the contract, so far as the parties differed, it was the duty of the jury to determine; but, the terms being fixed, their legal import was for the court to declare. This should be determined upon a consideration of the nature and purpose of the contract, and the character of the business to which it relates; and analogies furnished by cases arising under the poor laws in England or in this country, while they may be helpful in some respects, ought not to be controlling. The subject of this contract was labor. Labor was what Bradley needed and undertook to pay for. It was what Bowman offered to furnish him at an agreed price. The labor was to be performed upon the land, in its cultivation, in the care of the cows, and the delivery of the milk. As Bowman was not a cropper, or a tenant paying rent, his possession of the land and the cows, and the implements of farm labor, was the possession of his employer. The barn was used to stable the cattle and store their feed. The house was a convenient place for the residence of the laborer. The house, the barn, the land, the cattle, the farming tools were turned over into the custody of the man who had been hired to care for the property; but he had no hostile possession, no independent right to possession. His possession was that of the owner whom he represented, and for whom he labored for hire.

This is not denied as to the farm, the barn, the stock, or the tools, but an attempt is made to distinguish between the house and everything else that came into the possession of the employe in pursuance of the contract of hiring. There is no solid ground on which such a distinc. tion can rest. If the possession of the house be regarded as an incident of the hiring, the incident must fall with the principal. If it be regarded as part of the compensation for labor stipulated for, then the right to the compensation ceased when the labor was discontinued. Bowman had the same right to insist on the payment of the cash part of his wages as on that part which provided his family a place to live. His right under the contract of hiring was like that of the porter to the possession of the porter's lodge; like that of the coachman to his apartnients over the stable; like that of the teacher to the rooms he or she may have occupied in the school buildings; like that

of the domestic servants to the rooms in which they lodge in the house of their employers. In all these cases, and others that might be enumerated, the occupancy of the room or house is incidental to the employment. The employe has no distinct right of possession, for his possession is that of the employer, and it cannot survive the hiring to which it is incidental, or under which it is part of the contract price for the services performed. So, in this case, if the contract was simply a contract for labor at one dollar per day and a house to live in, the plaintiff held the house by the same title and for the same purpose that he did the land or the cattle in the care of which his labor was to be performed. When his contract ended, his rights in the premises were extinguished, and it was his duty to give way to his successor. The jury might have found the disputed term of the contract in the plaintiff's favor, and that the contract was made in express words for one year. In this case the defendant would be called upon to explain his conduct in discharging the plaintiff before the time for which he was hired had expired, and the jury would have to determine whether his conduct was a violation of the contract on his part, or was justified by the reasons assigned. But the plaintiff's declaration is not drawn upon this basis. It does not allege a violation of contract, but a trespass. It asserts that the plaintiff was "in the lawful and peaceable possession of a certain dwelling house, messuage, and tract of land;" and that the defendant "with a high hand entered upon said close,and forcibly threw out of said dwelling the furniture and property of said plaintiff, and exposed the same to the weather, and broke and injured the same." The damages alleged are for injury to the furniture, and money paid to secure another house for himself and family. The case seems to have been begun and tried by the plaintiff on the theory that his right to the possession of the house was superior to his right to remain in the defendant's service; and that, while his employer might dismiss him from the one at any time, he could not oust him from the other until the expiration of one full year. Such a theory cannot be sustained by proof of a contract for labor at a fixed price per day and a house to live in. It can only be supported by proof of a contract for one year's occupancy of the house. Both parties agree that the contract in this case was one of hiring. There is no pretense of a separate lease for the house. The compensation for its use was in the labor to be performed on the premises. When the labor ceased, on the 19th of July, the plaintiff ceased to pay for his Occupancy. By ceasing to labor without remonstrance or objection, he must be held to acquiesce in the defendant's right to terminate the contract for labor. If that contract was rightfully terminated, then the plaintiff's right to the house was at an end, and he could be lawfully put out of possession. These views sustain the first and second assignments of error. The fifth assignment is also sustained.

It is not necessary that occupation of a house or apartments should be a necessary incident to the service to be performed, in order that the right to continue in possession should end with the service. It is enough if such occupation is convenient for the purposes of the service, and was obtained by reason of the contract of hiring. For reasons thus given the judgment in this case is reversed. (151 Pa. St. 17)

HERMANY et al. v. FIDELITY MUT. LIFE Ass'n.

(Supreme Court of Pennsylvania. Oct. 3, 1892.) LIFE INSURANCE-ACTION ON POLICY - MISSTATEMENTS IN APPLICATION.

1. Act June 23, 1885, providing that no untrue statement in an application for a life insurance policy, if made in good faith, shall work a forfeiture or be a ground of defense, unless it relate to a matter material to the risk, is of binding effect, though assured on his application expressly agreed that every statement shall be material, and that any misstatement shall avoid the policy, notwithstanding any law to the contrary.

2. In an action on a life insurance policy, which provides that certain proofs of death shall be furnished by the claimant unr the policy before he shall have the right to sue, it is for the court to decide whether such preliminary proofs were furnished.

3. Where a life insurance policy is issued payable to the wife and children of assured, with a reversion to him in case of their prior death, and suit is brought on the policy by the wife and children, a statement made by insured subsequent to the issue of the policy is not admissible to impeach the good faith of statements in his application.

Mitchell, J., dissenting.

Appeal from court of common pleas, Lehigh county; EDWIN ALBRIGHT, Judge.

Action by Sarah Hermany and others against the Fidelity Mutual Life Association on a policy of life insurance. From a judgment for plaintiffs, defendant appeals. Affirmed.

On January 6th, 1887, Lewis Hermany made application to the Fidelity Mutual Life Association of Philadelphia for an assurance of $5,000 upon his life. A policy for that amount was issued to him, payable to his wife and children. In his ap plication he stated that he was then in good health; that he had not had dysentery, nor disease of the urinary or genital organs, nor chronic diarrhea; that he had' no usual medical attendant; that he had not consulted nor taken the advice of any other medical man for 10 years previous; and agreed and warranted that the statements and answers were material and true, and that, if they were untrue, the policy and contract were to be void, notwithstanding any statute or law to the contrary. He died on August 1, 1888, of tuberculosis of the intestines. In an action on the policy defendant offered to show as part of the res gestæ, and as bearing on the question of good faith in the answers of the deceased, that the insured had on January 12, 1888, made application, under oath, to the United States government for a pension, alleging that while in the service in 1863 he had an attack of fever, from which chronic diarrhea resulted, causing complete disability; also the examination and report of the pension

board of medical examiners to the same effect. This was excluded by the court. The court charged the jury that the proofs of death were sufficient and satisfactory; that it was their province to determine the uncontradicted fact that deceased had consulted physicians prior to his application; that the act of June 23, 1885, could not be waived by the issue as he had attempted to in the policy, but that the act had relation only to material matters, and that the concealment of prior medical consultation was material, because so determined by the highest court, but left to them to find whether all the other misrepresentations were material, and made in good faith or not. The defendant prayed instructions that the testimony produced by plaintiffs and defendants being uncontradicted, that the insured had consulted medical advice 10 years prior to his decease, that, therefore, plaintiffs could not recover; also that the proofs of death were not satisfactory, because they showed the same fact; that the insured had waived the benefit of the act of June 23, 1885; and that, under all the evidence, the verdict must be for the defendants. These were denied by the court. The refusal of these points, the charge that the insured could not waive the act of June 23, 1885, and the rejection of the pension application constitute the errors assigned.

The following were among the requests of defendant: "Twelfth. If you believe that said Lewis Hermany, within ten years prior to the making of said application, had disease of the genital or urinary organs, then your verdict will be for the defendant. Answer. Affirmed, provided the jury finds that the misrepresentation was material to the risk. But if the jury find that the diseases here referred to were not material to the question whether or not Lewis Hermany should obtain the insurance, then, if the jury find that Lewis Hermany made the statements, and they were untrue, but he believed his statements to be true, made them in good faith, had forgotten or never knew of the existence of the said diseases, the plaintiffs may recover. Thirteenth. If you believe that said Lewis Hermany, at the time of making said application, was not in good health, your verdict will be for the defendant. A. Answered in the words of answer to twelfth point. Fourteenth. If you believe the statement made by Mrs. Sarah Hermany, one of the plaintiffs, and contained in the proofs of death presented to the defendant, then your verdict will be for the defendant. A. Negatived. The statements as to diseases before the date of application do not absolutely prevent a recovery; the questions of materiality and good faith are to be considered."

The court charged the jury, as follows: "Now, as I have said to you that certain proofs were required to be furnished be. fore the claimants had a right to sue, I instruct you, gentlemen, that the proofs that were furnished, and that are in evidence here, were sufficient to entitle the plaintiff to sue It is, in my opinion, not a question for the jury to decide whether sufficient proofs had been furnished to en

five years before the time the proof was made, from August, 1888-that her husband had consulted six or seven physicians,Shade, Graver, Erb, Pepper, Da Costa, etc. That answer, in itself, does not show that the statement of the insured about the physicians was untrue, because those five

plication for a policy of life insurance contains a clause of warranty of the truth of the answers therein contained, no misrepresentation or untrue statement in such application, made in good faith by the applicant, shall effect a forfeiture, or be a ground of defense in any suit brought upon any policy of insurance issued upon the faith of such application, unless such misrepresentation or untrue statement relates to some matter material to the risk. In the contract of insurance in this case it is provided that the insured waives the provisions of any statute which might effect the contract of insurance; in other words, the insured is made to say that he will stand by what he promised in his contract of insurance, even although an act of assembly provides to the contrary; that he waives the act of assembly. In the opinion of the court, that stipulation is not binding. The court is of the opinion that it would be contrary to public policy to permit this statute, which was made for the benefit of the insured, and possibly also for insurance companies, to be disregarded by parties who enter into contracts of insurance; and so I instruct you that that clause of the contract is invalid, and that the aet of assembly is to govern. (18) It is alleged, as has already been alluded to, that he had the urinary disorder uræsemia, which it is said consists of excessive acid in the urine; that he had local disorders, excoriations; and it is claimed that the statements of the deceased in that respect were not true as to these matters. Gentlemen, we instruct you that, if they were made in good faith by the deceased, even although they were not true, that that alone cannot prevent a recovery here. While the policy and application say that all the answers of the insured shall bind him, whether made in good faith or not, I hold that the act of assembly of 1885, which says that the insured shall not be prejudiced by misstatements made by him in good faith, applies to the statements I am now referring to; and, if it is found by you that they were not material,-and the question is referred to you whether they are material or not, -then you can say that they do not prejudice these plaintiffs, or prevent a recovery. (19) If Lewis Hermany, when he said he did not suffer from these disorders which the defendant says he did suffer from, and you find that he was afflicted with them, and, even although he answered untruthfully, still, if you find that he did it honestly, and not with any intention of concealing the truth, or of stating an untruth, and you further find that it did not affect his health, nor cause his death, then you can say that the plaintiffs may recover, and that notwithstanding the untrue statement. (20) In the original proofs of death there is a statement by Mrs. Hermany that within the last five years-that is,

between the insurance and the death of the insured. He might have consulted these doctors after the insurance. She always says he went to Buffalo in October, 1886, to see Dr. Pierce. This statement of the widow is to be taken as a declaration made by her against interest. But she alone is not suing here. She and her children are suing here, and this statement is susceptible of explanation, and it is to be taken along with the other evidence in the case; and, if you find that this and the other evidence shows a breach of the policy, then the plaintiff cannot recover. If otherwise, it would not prevent the recovery by the plaintiffs."

"

C. J. Erdman and W. S. Campbell, for appellant. Edward Harvey, James L.

| Schaadt, and Henninger & Dewalt, for appellees.

STERRETT, J. This case hinged mainly on questions of fact which were exclusively for the consideration and determination of the jury. These questions, togeth er with the evidence relating thereto, were fairly submitted to them by the learned president of the common pleas in a clear and comprehensive charge, to which, as a whole, no just exception can be taken. A verdict having been rendered for the plaintiffs, it must now be conclusively presumed that the cardinal facts were all found in their favor; and, unless some error of law contributed to that result, the judgment should not be disturbed.

Fifteen points for charge were submitted by defendant. In the eleventh the court was requested to charge as follows: "If you believe that Lewis Hermany, the insured, within ten years prior to making said application, consulted or was prescribed for by either Dr. Shade or Dr. Graver or Dr. Rone, then your verdict will be for the defendant." This point was affirmed without qualification. In view of the verdict for plaintiffs, it necessarily fol lows that the facts of which it is predicated were all found against the defendant. The 12th, 13th, and 15th points, as presented, might have been refused, but each of them was affirmed with a qualification, which, in view of the evidence, was entirely proper. In the first of these, the request was to charge: "If you believe that said Lewis Hermany, within ten years prior to the making of said application, had disease of the genital or urinary organs, then your verdict will be for defend. ant." This was affirmed, "provided the jury finds that the misrepresentation was material to the risk. But, if the jury find that the diseases here referred to were not material to the question whether or not Lewis Hermany should obtain the insurance, then, if the jury find that Lewis Hermany made the statements, and they were untrue, but he believed his statements to be true,-made them in good