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employee, and it does not extend to those who are of mature years, and who are familiar with the employment and its risks."
It will be seen from this decision that in actions by young persons against their employers, we recognize as sources of liability the inexperience of the servant, and the want of specific instruction as to the dangers of the service, and we suspend the rule that the servant assumes the risk of the service when he has not knowledge by experience or by specific instruction. All these sources of liability existed in the present case. The plaintiff was very young; he had no knowledge, by experience or by instruction, as to the dangers of the ser. vice; the service was, in reality, highly dangerous; the plaintiff was not employed to engage in this particular service, but in another, and was urged into it against his will; the appliance from the use of which the injury arose was only in partial use; and the testimony disclosed a perfectly simple device, in extensive use, wbich practically removed all danger. The most of these facts were proved without contradiction, and ample testimony was given as to all of them. In such circumstances the case was clearly for the jury, and, as it seems to us, the verdict was entirely justified by the evidence. We are of opinion that there was no error in the charge nor in the answers to points, and therefore think the judgment should be affirmed.
MASTER AND SERVANT EVIDENCE AS TO CONDITION OF MACHINERY.In an action for damages, brought for personal injury caused by defective ma. chinery, it was held that one previously injured by the same machinery could testify as to how he was injured, as such evidence bore upon the condition of the machinery: McCarragher v. Rogers, 120 N. Y. 526.
MASTER AND SERVANT - DANGEROUS MACHINERY — EXISTENCE OF SAFER, - When the machinery furnished by a master is of the kind in common use, he will not be liable for an injury caused by it, unless he has information or reason to believe that a safer kind of machinery for the same work is in com. mon uge elsewhere: Nix v. Texas Puc. Ry Co., 82 Tex. 473; 27 Am. St. Rep. 897, and note; Kehler v. Schwenk, 144 Pa. St. 348; 27 Am. St. Rep. 633.
MASTER AND SERVANT - LIABILITY OF MASTER TO INEXPERIENCED SER. VANT FOR DANGER NOT APPRECIATED BY HIM. – A minor servant can recover from the master for injuries suffered by him from any peril which he did not know, or could not properly appreciate if he did know: Hinckley v. Horazdorosky, 133 Ill. 359; 23 Am. St. Rep. 618, and noto; Ciriack v. Mer. chants' Woolen Co., 151 Masg. 152; 21 Am. St. Rep. 438, and note; Rummel v. Dihoorth, 131 Pa. St. 509; 17 Am. St. Rep. 827, and note; Colorado etc. R’y v. O'Brien, 16 Col. 219.
MASTER AND SERVANT - Master's DUTY TO PROTECT SERVANT FROM Unusual Risk. – When the dangerous condition of machinery is foreseen
AM, ST. REP., VOL. XXXI. – 50
by the owner, it is his duty to adopt every possible precaution to save those working about it from injury, and a failure to do so will make him liable for all resulting injury: Mastin v. Levagood, 47 Kan. 36; 27 Am. St. Rep. 277, and note; note to Shortel v. St. Joseph, 24 Am. St. Rep. 322. But knowle edge by a servant that a master's machinery is habitually used in a par ticularly dangerous and unlawful way, if he thereafter remained in his employment, is evidence of contributory negligence against him: Ahhot v. McCadden, 81 Wis. 563; 29 Am. St. Rep. 910, and note. See Gustafsen v. Washburn etc. Mfg. Co., 153 Mass. 468.
MASTER AND SERVANT - SERVANT'S RIGHT TO PRESUME THAT MASTER HAS FURNISHED SAFE APPLIANCES. — A servant has a right to assume, with. out inquiry or examination, that the appliances furnished him are safe and mitable: Carter v. Oliver Oil Co., 34 S. C. 211; 27 Am. St. Rep. 815, and note; Harrison v. Detroit etc. R. R. Co., 79 Mich. 409; 19 Am. St. Rep. 180; Myhan v. Louisianu Electric Light etc. Co., 41 La. Ann. 964; 17 Am. St. Rep. 136. See note to Shortel v. St. Joseph, 24 Am. St. Rep. 320.
MASTER AND SERVANT. A MASTER 18 BOUND TO INSTRUCT A YOUNG OR INEXPERIENCED SERVANT with reference to dangerous machinery, so that he can understand and appreciate the danger connected with it and the necessity for the exercise of care: Ingerman v. Moore, 90 Cal. 410; 25 Am. Ste Rep. 138, and note with cases collected; Myhan v. Louisiana Electrical Light da. Oo, a La Ann. 964; 17 Am. St. Rep. 436, and note.
WBLSA V. LONDON ASSURANCE CORPORATION.
(161 PENNSYLVANIA STATE, 697.) INSURANOB — NOTICE OY Loss. — Proof that the adjuster of an insuranco
company was sent to the place of the fire under instructions from his company, and that he was there one week after the fire, is conclusivo
ovidence of notice to the company of the loss. LIBURANOB — PROOF OF Loss - WAIVER - ESTOPPEL. — When the insured,
in good faith and within the stipulated time, does what he plainly intends w a compliance with the requirements of his policy as to proofs of loss, good faith equally requires that the company shall notify him promptly of any objections thereto, so as to give him an opportunity to obviato them, and mere silence may so mislead him, to his disadvantage, to sup. pose the company satisfied, as to be of itself sufficient evidence of waiver
by estoppel. LUSURANCE – VARIANCE BETWEEN APPLICATION AND POLICY — PRESUMP
TION. When a life tenant states his interest to be "a life lease,” in his application for fire insurance, and the insurance agent issues a policy on the full value of the fee, the company cannot, after loss, set up the mis. take of its agent as a defense. Tho presumption exists that the policy represents the precise and definite contract between the parties, and the
burden of proof is upon the one who seeks to change its terms by parol. INSURANCE BY LIFE TENANT – MEASURE OF DAMAGES. — When a tenant for
life, intending to insure the property for the benefit of himself and the remaindermen, receives a policy for the full value of the fee, by mistako of the insurer, who accepts the full premium, the insured may recover the full value of the policy after loss, as trustee for the remaindermen.
Action to recover for the loss of a dwelling-house insured by a tenant for life. Judgment for plaintiff. Defendant ap pealed.
J. H. Osmer, for the appellant
MITCHELL, J. Eight of the eighteen assignments of error relate to the notice of the fire and the proofs of loss. As to the notice, Cluff testified that Ray, the adjuster, was sent to the place under instructions from himself or the company, and it is undisputed that Ray was there a week after the fire. This was conclusive evidence of notice to the company.
As to the proofs of loss, although they are conceded to be informal, they come plainly within the rule laid down in Gould v. Dwelling-house Ins. Co., 134 Pa. St. 570, 588; 19 Am. St. Rep. 717; and the circumstances under which they were delivered put upon defendants the duty of notifying the plaintiff of their objections, if the want of form was to be relied upon. The failure to give such notice was evidence for the jury of a waiver. But it is said that the proofs of loss were not sent to the company, as required by the policy, but left at the office of the local agent, Barbour; and Trask v. State etc. Ins. Co., 29 Pa. St. 198, 72 Am. Dec. 622, and Edwards v. Lycoming etc. Ins. Co., 75 Pa. St. 378, are relied upon to show that such delivery is not sufficient. In both these cases the policy required the notice to be given “ forthwith," and to the company, and it was held that unexcused delays of eleven and eighteen days, respectively, were unreasonable, and should be so pronounced as matter of law. And in Edwards v. Lycoming etc. Ins. Co., 75 Pa St. 378, it was said that the local agent had no authority to receive the notice, and was not bound to communicate it to the company. But since these decisions, the act of June 27, 1883 (P. L., p. 165, sec. 1), has practically given a legislative definition of reasonable time by fixing the period of ten days for notice of the fire and twenty for the proofs of loss, and has settled the question of the agent's authority by enacting that the notice and proofs may be delivered to the company at its general office, or to the agent who countersigned the policy. There was evidence to justify submitting these matters to the jury in the way it was done, and the assignments of error relating thereto must be dismissed.
The substantial defense was upon the admitted fact that the insurance was on the full value of the fee in the land, while the plaintiff's interest was only a life estate. Unexplained, this was a solid defense on the merits, and the burden of explanation was on the plaintiff. It was testified by Neeley that he wrote the application for insurance for the plaintiff at her request, and that her interest in the house was correctly stated therein as “a life lease.” This application was sent or given by Neeley to Barbour, who, by his own testimony, bad authority to write up the policy by inserting the description of the insured interest in the land, and did so in this case. The application was not produced by defendant, nor was Neeley's testimony as to its contents in any way contradicted. Upon the evidence, therefore, it was plain that the defendant had issued the policy with knowledge of the actual condition of the title, and the mistake in the description was that of its own agent, which it could not set up as a defense: Burson v. Fire Association, 136 Pa. St. 267; 20 Am. St. Rep. 919; Columbia Ins. Co. v. Cooper, 50 Pa. St. 331; Manhattan Ins. Co. v. Webster, 59 Pa. St. 227; 98 Am. Dec. 332; Meadowcraft v. Standard F. Ins. Co., 61 Pa. St. 91; Eilenberger v. Protective M. F. Ins. Co., 89 Pa. St. 464. The learned judge below declined to affirm the defendant's points, and to say as matter of law that the policy was void, but submitted the case to the jury with full and explicit instructions as to the presumption in favor of the policy being the precise and definite contract, and the burden of proof resting on the plaintiff. Under the evidence, this was the only proper disposition to make of it.
The question of the measure of damages is not free from difficulty, owing to the meagerness of its presentation by both parties. Undoubtedly, the general rule that the insured cannot recover more than his actual loss, or the value of his interest, would, without more, limit the recovery of a life tenant, as of a lessee, to the value of his unexpired term: See Wood on Fire Insurance, 481. But it is equally true that a carrier, or custodian, or agent may insure in his own name, and recover the entire loss, standing as a trustee for all the amount recovered in excess of his interest: Wood on Fire Insurance, 617, 632, 1121, and cases cited. In Miltenberger v. Beacom, 9 Pa. St. 198, it was said: “The contract of assurance, like other contracts, may be effected by the agency of a third person, without the authority of the person to be benefited, if he subsequently recognize it. It is true, that to enable the beneficiary to sue upon it directly, he must be expressly named.” In the present case, Neeley testified that there was some talk with plaintiff as to the name in which the insurance should be taken, she saying that some one thought it had better be in the name of the executor or administrator, but she thought, as she had control of it, it had better be in her name. This, in connection with the fact that the full premium was paid and the policy issued for the full value of the fee, may fairly be taken to indicate the real intent of the parties to insure the whole for the benefit not only of the plaintiff as life tenant, but also of the remaindermen. The company is in no position to contest this intent, for with notice in the application that the plaintiff was only life tenant, it charged the full premium and issued the policy on the fee. It is in no danger of a second action by the remaindermen, for they are not named in the policy; and on the authority of Miltenberger v. Beacom, 9 Pa. St. 198, they cannot sue directly, and a suit through plaintiff would be barred by the present judgment. On the other hand, the plaintiff, by suing for and recovering on this evidence the full value of the fee, has put herself in the position of trustee for the remaindermen as to the excess of the judgment over the value of her life interest. As the evidence on this branch of the case was entirely uncontradicted, the jury would not have been justified in taking any other view of it, and therefore the instructions on the measure of damages, though not so explicit as might be necessary in a contested case, cannot be held erroneous.
There remain to be considered only the seventh and eighth assignments, in regard to the denial of liability for specified reasons, as a waiver of other defenses. The only ground upon which such a result can rest is estoppel. No party is required to name all his reasons at once, or any reason at all, and the assignment of one reason for refusal to pay cannot be a waiver of any other existing reason, unless the other is one which could have been remedied or obviated, and the adversary was 80 far misled or lulled into security by the silence as to such reason that to enforce it now would be unfair or unjust: National Ins. Co. v. Brown, 128 Pa. St. 386. The whole doctrine depends on estoppel, and the essential feature of it is loss or injury to the other party by the act of the party to be estopped. In this respect there is nothing peculiar about actions apon insurance policies. They stand on the same