Finding no reversible error in any of the rulings of the court below, the judgment must be affirmed.

See, also, B. & O. R. R. Co. v. Thompson, 10 | with full explanation as to the same which Md. 76; Lange v. Wagner, 52 Md. 310, 36 the said petitioner refused to accept, claimAm. Rep. 380. ing that the proper amount due to him was $105.20, which he did accept and for which he gave a release; that, if there was any "mistake" on the part of the petitioner, it was due to his own fault and negligence, he being fully informed as to all facts more than 30 days before the account was allowed, and more than 70 days before his time for taking an appeal expired.

Judgment affirmed, with costs.

BLAKE et al. v. BLAKE. (No. 5041.) (Supreme Court of Rhode Island. April 4, 1917.)

COURTS 190(4)-TIME FOR TAKING APPEAL

FROM MUNICIPAL COURT-EXTENSION. Additional time for appealing from a decree allowing executors' final account will not be granted where petitioner knew all the facts over 30 days before allowance of the account and over 70 days before time for taking appeal expired.

Petition for leave to appeal under Gen. Laws 1909, c. 297, § 3, by George H. Blake and another against Lester T. Blake. Petition denied.

Everett D. Higgins, of Providence, for petitioners. Barney, Lee & McCanna, of Providence, for respondent.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 646, 667, 684.] 2. CONTINUANCE 30-SURPRISE AT TRIALAMENDMENT OF PLEADINGS-COURT'S DISCRE

TION.

Amendment to declaration to show that trapdoor causing injury was of iron instead of wood, to conform with the proof, was not such surprise as entitled defendant to have trial deferred, although this is a matter within the trial court's discretion.

[Ed. Note.-For other cases, see Continuance, Cent. Dig. §§ 99-112.]

3. PLEADING 236(5)-AMENDMENT TO CONFORM WITH PROOF COURT'S DISCRETION.

Allowance of amendments to pleadings to correspond with proofs is within the trial court's discretion.

Where, in action against landlord and tenant jointly for personal injury resulting from neglect to keep a trapdoor in sidewalk in safe condition, it appeared that it was the duty of the landlord and not the tenant to make rePER CURIAM. Upon the above petition pairs, a nonsuit as to the tenant was proper in view of Gen. Laws 1909, c. 283, § 23, proof George H. Blake (alias George W. Blake)viding that parties misjoined may be dropped and Howard C. Blake against Lester T. Blake by order of court. (who alleges that his true name is Lester E. Blake), filed in this court on the 8th day of February, 1917, for leave to take an appeal from a decree of the municipal court of the city of Providence entered on the 15th day of December, 1916, allowing the final account of the said George W. Blake and Lester E. Blake, executors under the will of Emma J. Blake, alleging that by reason of accident, mistake, unforeseen cause, and for lack of evidence newly discovered they failed to take an appeal within 40 days after the entry of the decree as provided by law, we find that the account and the decree from which it is desired to take an appeal are not brought before us, and we are unable to say whether or not the decree is in any respect erroneous or prejudicial to the petitioners. We do not find from the affidavits presented at the hearing evidence that the petitioners failed to take their appeal by reason of any accident, mistake, or unforeseen cause, or for lack of evidence newly discovered. We do find that the petitioners were fully informed as to facts necessary for them to know as to the very matters now claimed by them to be in dispute, at least a month before the said account was allowed, and that they had full knowledge that said account was to be presented to the said court for allowance on the 14th day of December, 1916; that no fraudulent conduct or concealment on the part of the respondent has been shown, but, on the contrary, it appears that he tendered to the petitioner Howard C. Blake, in settlement of his interest in the estate, the sum of $205.20, Action by Mary Harnedy against Cresto

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 601, 605.]

-

4. LANDLORD AND TENANT 169(11) — IN-
JURY TO THIRD PERSON CONTRIBUTORY
NEGLIGENCE-QUESTION FOR JURY.
Where, from the evidence in action against
landlord and tenant for personal injuries, the
court could not say as a matter of law that
plaintiff was contributorily negligent, the ques-
tion was for the jury.

[Ed. Note.-For other cases, see Landlord and
Tenant, Cent. Dig. §§ 646, 667, 684.]
5. APPEAL AND ERROR

MOTION FOR NEW TRIAL.

1005(2)-REVIEW

Where it cannot be said that the trial court was clearly wrong in refusing to grant a new trial, and there was sufficient testimony to support the verdict, it will not be disturbed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876.]

Exceptions from Superior Court, Providence and Bristol Counties; John Doran, Judge.

Del Sesto and another. Judgment against defendant Antonio Gasbarro, and he brings exceptions to denial of motion for new trial. Exceptions overruled, and case remitted, with directions to enter judgment for plaintiff.

McGovern & Slattery, of Providence, for plaintiff. Flynn & Mahoney, of Providence,

for defendant.

PER CURIAM. This is an action of tres

testimony showed that it was made of iron rods, and the plaintiff was permitted to amend her declaration in that particular. This exception also includes the refusal of the trial court to pass the case. The record, however, does not show upon what ground such request was made, and we cannot very well supply the deficiency by an assumption. If it was on the ground of surprise we may observe, in passing, that such matters, as well as the matter of the amendment itself, are largely in the discretion of the trial court, and we cannot see how such an amendment could operate to the disadvantage of the defendant and entitle him to have the trial of the case deferred.

Exception 20 relates to the refusal of the trial court to direct a verdict for the defendant Gasbarro. The defendant based his motion on two grounds: (1) That the plaintiff has not shown herself to have been in the exercise of due care, and that she has, according to her own testimony, been guilty of contributory negligence; and (2) that the plaintiff having declared jointly against two defendants, an owner and a tenant, it was an abuse of the discretion of the court to grant

a nonsuit as to one defendant.

[4] In the first place we do not think that

pass on the case for negligence brought by Mary Harnedy against Cresto Del Sesto and Antonio Gasbarro to recover damages for personal injuries alleged to have been sustained by the plaintiff. The declaration is in one Exceptions 21 and 22 raise practically the count and alleges that the plaintiff, while at- same questions which we have Just considertempting to walk over a trapdoor which formed in connection with exception 16, and need ed a part of the sidewalk on the premises of not be separately discussed. Gasbarro, her foot, by reason of the negligent condition in which such trapdoor was allowed to be and remain, was caught therein, and she was thrown to the ground and injured. The case was tried in the superior court, and the jury returned a verdict for the plaintiff against the defendant Gasbarro for $500. During the trial a nonsuit was granted as to the defendant Cresto Del Sesto. The defendant Gasbarro filed a motion for a new trial, which was denied by the trial court, and he has now brought his bill of exceptions to this court setting forth 29 alleged errors. The exceptions numbered 1, 4, 5, 6, on the testimony the trial court would have 7, and 17, as we are informed by the defend- been justified in finding that the plaintiff was ant in his brief, are not pressed. The ex- guilty of contributory negligence as a matter ceptions 2, 3, 8, 9, 10, 11, 12, 13, 14, 18, and of law, and in directing a verdict for the 19 relate to the rulings of the trial court in defendant on that ground. In that situation admitting and rejecting testimony. Upon the question of contributory negligence would examination they seem to be clearly without be for the jury. As to the second point of merit and cannot be profitably discussed. this exception, we think that under the stat[1] Exception 15 is to the granting of a ute (Gen. Laws 1909, c. 283, § 23) the denonsuit to Cresto Del Sesto. The place in fendant Del Sesto could be properly eliminatwhich the accident occurred was not an accepted when it appeared that he was not the owned street, but was the property of the defend-er of and was under no duty to keep these ant Gasbarro, who testified that as between premises in repair. himself and his tenants there was no arrangement as to the care of these premises, and that on a prior occasion when some portion of the trapdoor became broken it had been repaired by the direction of Gasbarro and by his employés. The testimony does not appear to disclose any liability on the part of Del Sesto for the condition of the premises, and we find no error in the granting of the nonsuit as to him.

[2, 3] Exception 16 is to the ruling of the trial court permitting the plaintiff to amend her declaration and make it conform to the testimony in respect to the material of which the trapdoor was constructed. The plaintiff's original declaration set forth that the trapdoor was made of wooden boards. The

Exceptions 23, 24, 25, and 26 relate to the refusal of the trial court to charge the jury as requested by the defendant. Upon an examination of these requests and their consideration in connection with the testimony in the case we find no error in such refusal.

[5] Exceptions 27, 28, and 29 relate to the refusal of the trial court to grant the defendant Gasbarro's motion for a new trial. We think there is testimony sufficient to support the verdict, and we cannot say that the trial court was clearly wrong in its refusal to grant the defendant a new trial.

The defendant's exceptions are all overruled, and the case is remitted to the superior court, with direction to enter judgment for the plaintiff on the verdict.

we do not feel warranted in saying that as a matter of law the defendant's servants were not negligent. We think the evidence presented an issue of fact, which should have been submitted to the jury with appropriate instructions as to the law.

The plaintiff's exception is sustained, and the case is remitted to the superior court for a new trial.

(40 R. I. 219)

GILMARTIN, Deputy Chief of Police, v.
STANDISH-BARNES CO.
(Nos. 475, 476.)

(Supreme Court of Rhode Island. April 3,
1917.)

MUNICIPAL CORPORATIONS 602-CONSTI-
TUTIONAL LAW POLICE POWERS BILL-
BOARDS-REGULATION.

Pub. Laws 1910, c. 542, and Providence Ordinance, c. 443, enacted in pursuance thereof, regulating size and position of billboards, are a valid exercise of police power and constitutional. Certified from Superior Court, Providence and Bristol Counties.

Complaints by Peter F. Gilmartin, Deputy Chief of Police, against the Standish-Barnes Company. Certified on constitutional questions from superior court. Re-certified to Superior Court.

Elmer S. Chace, City Sol., and Charles P. Sisson, Asst. City Sol., both of Providence, for complainant. J. Jerome Hahn, of Providence, for respondent.

PARKHURST, C. J. These cases are two complaints brought in the police court of the city of Providence, for violations of chapter 443 of the Ordinances of the City of Providence, approved July 11, 1910, regulating outdoor advertising, and the erection and maintenance of billboards.

or

quash and demurrers to said complaints both having been overruled, said company, defendant, in each case admitted sufficient evidence to convict, was fined $10 and costs in each case, and thereupon appealed both cases to the superior court for the counties of Providence and Bristol. In said superior court the attorney for the respondent filed motions to quash the complaints, and, it appearing to said court that constitutional questions were raised upon the record, said complaints were thereupon certified to this court, to gether with all papers in each case, here to be heard and determined on the constitutionality of both said act and said ordinance.

It is admitted by counsel for the parties that said chapter 542 of the Public Laws of Rhode Island and said chapter 443 of the city ordinances have not been amended nor alter

ed in any wise since their passage, and are the identical laws which were considered by this court in Horton v. Old Colony Bill Posting Co., 36 R. I. 507, 90 Atl. 822, Ann. Cas. 1916A, 911, decided June 26, 1914. It is apparent from the record before this court that

precisely the same questions, relating to the

constitutionality of said act and ordinance, as were raised and determined in the Horton Case, supra, are now raised in these cases in substantially identical words. We find nothing in the briefs and arguments of counsel which in any way tend to modify or disturb the conclusions arrived at in the opinion in that case. Indeed, counsel for the defendant did not appear to expect that we would come to any different conclusion, and no serious attempt was made to reargue the principles involved in that case.

Certain cases which have been determined by other courts, since our decision in the Horton Case, supra, relating to similar ordinances regulating the erection and use and maintenance of billboard structures, have been called to our attention by counsel for the complainant, all of which are in support and confirmation of the views which we expressed in the Horton Case. For convenience of reference these cases are cited, but we do not deem it necessary to review them. Cream City Bill Posting Co. v. City of Milwaukee, 158 Wis. 86, 147 N. W. 25 (October 6, 1914); Thomas Cusack Co. v. City of Mil

See

It is alleged in the complaints, in substance, that the Standish-Barnes Company, on or about August 10, 1916, constructed and used a certain structure and billboard for the display of outdoor advertising on the westerly side of North Main street between Caroline and Matilda streets in the city of Providence (first complaint); that on about August 10, 1916, the said company also constructed and used a certain structure and billboard for the display of outdoor advertising on a tract of land at or near the cor-waukee, 158 Wis. 100, 147 N. W. 30 (October ner of Charles and Admiral streets in the city of Providence (second complaint). It is alleged that both of these structures violated provisions of chapter 443 of the Ordinances of the City of Providence, approved July 11, 1910, passed pursuant to authority given by the General Assembly under chapter 542 of the Public Laws of Rhode Island, January Session 1910. In consequence of these violations these complaints were made in behalf of the state by the said complainant in the police court of said Providence, September 15, 1916. On October 11, 1916, motions to

6, 1914); People v. Miller, 161 App. Div. 138, 146 N. Y. Supp. 403 (March 6, 1914); Haskell V. Howard, 269 Ill. 550, 109 N. E. 992, L. R. A. 1916B, 893 (October 27, 1915); People v. Ludwig, 172 App. Div. 71, 158 N. Y. Supp. 208 (April 7, 1916), affirmed 218 N. Y. 540, 113 N. E. 532 (July 11, 1916); Thomas Cusack Co. v. City of Chicago, 267 Ill. 344, 108 N. E. 340, Ann. Cas. 1916C, 488 (December 16, 1914), affirmed by the Supreme Court of the United States, October term, 1916, January 15, 1917, 242 U. S. 526, 37 Sup. Ct. 190, 61 L. Ed.

The cases at bar, in our opinion, are ruled | fendant and to certain rulings. Exceptions by the Horton Case, supra, which is hereby overruled, and case remitted to superior approved and affirmed. In accordance with court. the findings in that case, we are of the opinion that both the ordinance in question and the enabling act are valid as a proper and reasonable exercise of the police power, and do not violate any of the constitutional provisions either of the Constitution of Rhode

Island or of the Constitution of the United States or amendments thereto to which reference has been made.

Walter P. Suesman, of Providence, and Asa B. Suesman, of Springfield, Mass, for plaintiff. Boss & Barnefield, of Providence, for defendant.

SWEETLAND, J. This is an action in assumpsit upon a contract for the renewal of a policy of accident insurance issued by the defendant to Winfield S. Wells, M. D., the husband of the plaintiff, which action is brought by the plaintiff as the beneficiary

The papers in these cases will be sent back to the superior court, sitting in Providence, with our decision certified thereon, for fur-named in said policy. ther proceedings.

(40 R. I. 222)

WELLS v. GREAT EASTERN CASUALTY
CO. (No. 4991.)

(Supreme Court of Rhode Island. April 4,

1917.)

1. INSURANCE 645(2)

ACCIDENT INSURANCE-ACTIONS-PLEADING ISSUES.

The original policy was for the term of 12 months from noon of December 7, 1911. By its terms the policy was issued in consideration of $50 premium paid, and the agreements and statements contained in the ap

plication of the insured, a copy of which was indorsed on the policy and made part thereof. It was further provided in said policy that If the applicant falsely stated that no policy the insured made and warranted the agreeof accident insurance had been canceled, the ap-ments and statements in said application to plication making such statement a warranty, the be true and material by the acceptance of insurer, under plea of general issue, might show the fraud of such statement, and that it had can- the policy. By said policy the defendant celed the policy during insured's life.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1554, 1633.]

2. INSURANCE 301-ACCIDent Insurance"CANCELED."

Where the application for accident policy required the applicant to say whether an accident policy had ever been "canceled," it would not have been a misrepresentation to state that none had been canceled where one had been voluntarily surrendered; there being a distinction

between cancellation and surrender.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 680.

For other definitions, see Words and Phrases, First and Second Series, Cancel; Cancellation.] 3. INSURANCE 232-ACCIDENT INSURANCE—

CANCELED.

Where an accident insurer wished to terminate liability and called in the policy, which the insured voluntarily brought in and surrendered, it was in fact canceled and not surrendered.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 504.]

4. INSURANCE 301-ACCIDENT INSURANCEFALSE WARRANTIES-MATERIALITY.

insured Winfield S. Wells, M. D. "against the effects of bodily injuries caused directly, solely and independently of all other causes by accidental means," in accordance with a schedule of accident indemnities, contained in the policy. Therein was also a provision for the payment of $15,000, "for loss of life." In said application appears the following:

the following statement of facts all of which I "I hereby apply for a policy to be based upon warrant to be true, complete and material and binding on me whether written by me or any other person.”

99

Among the statement of facts contained in the application is the following:

"12. No accident, sickness or life insurance policy issued to me has ever been canceled or renewal refused except as follows-no exceptions."

At the end of the term of said policy the defendant, in consideration of $50 issued to said Winfield S. Wells a renewal receipt continuing said policy for 12 months from noon of December 7, 1912; and at the end of said Gen. Laws 1909, c. 292, § 53, providing that renewal period the defendant, in considerano misstatement made in procuring a policy of tion of $50, again issued a renewal receipt, life insurance shall be deemed material or ren- continuing said policy for a further term of der the policy void unless the matter thus represented shall have actually contributed to the 12 months from noon of December 7, 1913. contingency or event on which the policy is to Each of said renewal receipts contained the become due and payable, does not apply to state- provision that the defendant continued the ment that insured's accident policy had never been canceled by another company, and if such policy, "provided the warranties and statestatement is false, even though not material, ments in the original application are true at the policy is voidable at the insurer's option. this date." During the second renewal [Ed. Note. For other cases, see Insurance, period, previous to April 20, 1914, an agent Cent. Dig. § 680.]

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

of the defendant was informed by Dr. Wells that before the defendant issued the original policy to him another accident insurance company, the Maryland Casualty Company, Action by Carrie B. Wells against the had canceled an accident insurance policy Great Eastern Casualty Company. On plain- which it had theretofore issued to Dr. Wells. tiff's exceptions to directed verdict for de- This information was communicated to the