premises did not destroy their use for the purposes for which the tenant had rented and used them. A verdict for the whole amount of the landlord's claim was rendered by the jury, and, judgment having been entered thereon, the tenant has taken this appeal.

There are three assignments of error; but, as the second and third have no exceptions to support them, they cannot be considered.

The first assignment alleges error by the court in holding that the tenant, the defendant, did not give sufficient notice of his intention to vacate the premises more than three months prior to the end of the current term or year. The only question, therefore, for consideration here is, as stated by the learned counsel for the defendant, whether or not the defendant's letters to plaintiff, dated, respectively, July 14, and August 10, 1898, constituted a sufficient written notice under the terms of the lease of his intention to terminate the tenancy at the end of the year 1898, so as to relieve the defendant of the rent for the year 1899. What is a sufficient notice between landlord and tenant as to vacating the demised premises is stated in the several text-books on the law of landlord and tenant, and there does not seem to be any material difference as to what the notice should contain. There are no particular words or form prescribed for such notice. It must, however, state clearly, positively, and unequivocally the intention of the landlord to repossess the premises, or of the tenant to vacate or surrender the premises at a fixed time. The notice must be certain and definite as to the premises, the intention to vacate, and the time when the surrender or vacation of the premises is to take place. It must be positive, decisive, and without ambiguity. In brief, the language of the notice must be such as to convey to the landlord the intention of the tenant positively and unequivocally to vacate the premises at the time specified in the notice. Such substantially are the essential elements of a sufficient notice from a tenant to a landlord of his intention to surrender the demised premises. The opinions in the English Case of Gardner v. Ingram, 61 Law Times (N. S.) 729, discuss the essentials of a sufficient notice of an intention to quit the premises given by a tenant to his landlord. The notice in that case was held insufficient; Lord Coleridge, C. J., and Bowen, J., delivering opinions. In the opinion of the latter it is said: "I think it is very necessary that in a notice to quit there should be plainness of speech; that is, it must be plain and unequivocal in its terms, leaving no doubt as to the intention of the party giving it. The effect of such a notice is to put an end to the relation of landlord and tenant. Therefore the landlord has a right to know whether the tenant is really going or not. If instead of adopting that course, the tenant uses language which is ambiguous, makes use of expressions which leave matters at the conclu

sion of the term contingent on something to be done or some arrangement to be made, there is no sufficient notice to quit. We are asked to place a business construction upon this notice. In my opinion there was no business intended by it. The tenant used language on which the landlord could not safely act."

Turning now to the letters of July 14th and August 10th, which contain the notice given, it will be observed that they do not express a certain and fixed intention of the defendant to determine the tenancy at the end of the year or at any other time. It must be conceded that the letter of July 2d, read in connection with the letters in question, shows that the latter referred to the demised premises. The two letters of July 2d and 7th, immediately preceding the letters in question, had reference solely to the payment of the rental. The letter of July 14th, as will be observed, acknowledges the return of the check for the rent due up to August 1st. It then contains what the defendant claims to be a notice of an intention to determine the tenancy. It says that it will be necessary for the defendant to vacate the premises by reason of the intention of the city to take a part of them, "and after that date we will, together, have a claim against the city of Philadelphia for this rent." This is not a notice that the defendant intends to quit the premises, but a reason why it might become necessary for him to vacate them at some time not designated. The notice of the city was to the effect that a part of the premises would be taken, and it did not necessarily follow that the premises could not still be used by the defendant for the business for which he rented it. In fact, as will be observed, the jury found that the taking of the small part of the premises by the city did not render the balance valueless for his purposes. The mere statement by the defendant, therefore, that it would be necessary for him to vacate the premises, was not a positive notice that he would surrender the tenancy at a fixed date on which the landlord could rely or would be justified in reletting them to another. The main idea apparent, however, on the face of the notice, is that the communication was more particularly concerned with the rent, and not as a notice by the defendant of his intention to quit the premises. This is made more apparent by the next clause of the letter which says: "In any event, we can probably arrange this satisfactorily and amicably at the time of appearing before the city's jury to assess damages, and we will be pleased to have you accept this check as payment of rent, up to and including the first day of August, and then I have no doubt we can make an amicable arrangement for the future." The thought of the writer throughout the communication, therefore, was to arrange then for the payment of the rent, and to leave to the parties to "make an amicable arrangement for the future," as to the occupa

ty to whom he had rented the premises. It was therefore of the utmost importance to the landlord, if the tenant did intend to vacate the premises, that he give a positive and unequivocal notice of such intention and of the date when the tenancy would end.

Our conclusion is that the letters of July 14 and August 10, 1898, did not contain a positive and unequivocal notice of an intention to terminate the defendant's tenancy of the premises at any fixed date, and hence the notice was insufficient under the terms of the lease.

The judgment is affirmed.

In an action by a passenger against a street railway company for personal injuries sustained while alighting from a car, plaintiff may at the trial two years after the accident amend his statement by changing averment that there was no stop of the car at all to an averment that there was an insufficient stop.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 653, 659.]

2. HUSBAND AND WIFE - DESERTED WIFERIGHT OF ACTION.

Under Act June 11, 1879 (P. L. 126), providing that, where a wife has been deserted or abandoned by her husband, she may sue any person as if she were unmarried, and under Act June 8, 1893 (P. L. 344), providing that earnings of a married woman shall belong to her, a deserted wife may sue in her own name for injuries to her earning powers in the future, sustained through injuries to her person.

[Ed. Note. For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 768.]

Appeal from Court of Common Pleas, Delaware County.

Action by Annie Schmelzer against the Chester Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

At the trial the court charged that the plaintiff would be entitled to be compensated, if the jury found for her "for the loss of her earning power, both before the trial and after." Verdict for plaintiff for $2,366, on which judgment was entered for $1,500; all above that amount being remitted.

Argued before MITCHELL, C. J., and FELL, MESTREZAT, POTTER, and ELKIN, JJ.

W. B. Broomall, for appellant.
Joseph H. Hinkson, for appellee.

MITCHELL, C. J. Two questions arise in this case: First. Was the amendment properly allowed? And, secondly, was the charge correct in regard to the plaintiff's right to recover for loss of her earning power?

Plaintiff was injured in alighting from a car. The first statement averred that the defendant was negligent, in that it did not "slacken the car and stop the same,

but immediately after the arrival of the said electric car at the public crossing at Market street, in the said city of Chester, and while the said plaintiff with the consent and permission of the said defendant and with all due care and diligence was alighting from the said electric car, the said defendant caused the same to be suddenly and violently moved and started, by means thereof the said plaintiff was violently thrown therefrom to the ground, by means whereof," etc. At the trial an amendment was allowed charging the negligence to consist, in this "that the said defendant stopped the said electric car at Market street aforesaid, so that the said plaintiff could alight and depart therefrom, but after the arrival and stopping as aforesaid of the said electric car at the public crossing at Market street, in the said city of Chester, and while the said plaintiff, with the consent and permission of the said defendant and with all due care and diligence, was alighting from the said electric car, the said defendant caused the same to be suddenly and violently moved and started, by means thereof the said plaintiff was violently thrown," etc.

When the amendment was offered and allowed, more than two years had elapsed, and defendant objected on the ground that the statute of limitations, which was pleaded, had run, and no amendment could be allowed which changed the cause of action. The rule is undisputed, but it was not violated in this case. Briefly expressed, the difference between the two statements is that the first avers there was no stop of the car at all, while the second avers an insufficient stop. Both relate to the same injury, at the same time, the same place and the same circumstances, except for the difference in regard to the stop. But on the question of negligence there is no legal difference between no stop and no sufficient stop. The inference is the same in both cases. A difference might arise on the question of contributory negligence of the plaintiff, but both statements expressly negatived that by the averment of due care. As a material fact it was as necessary for plaintiff to show a case clear of her own negligence under one statement as under the other, and as a defense it was equally open to evidence from defendant under both. The amendment cannot be regarded as a change of the cause of action, but only as a restatement in a different form which did the appel-, lant no injury. Stoner v. Erisman, 206 Pa. 600, 56 Atl. 77.

Secondly. The plaintiff was a married woman who sued in her own name, without joining her husband. At the trial she gave evidence that her husband had deserted her, and the jury found this fact in her favor. Defendant objected that her earnings belonged to her husband, and therefore the loss of the power to earn in the future could not be included in the verdict. It may be noted that, as the statute of limitations had run

since the accident, no action could be maintained by the husband even if he should return. And also that the assignment of error in this regard refers not to earnings, but to earning power. Neither of these matters, however, is material in the present case. The act of February 22, 1718 (1 Smith's Laws, 99), empowered the wives of mariners who had gone to sea, leaving their wives at shopkeeping or to work for their livelihood, to sue without naming the husband. And the act of May 4, 1855 (P. L. 430), provides that wives whose husbands have deserted them "shall have all the rights and privileges secured to a feme sole trader, under the act of the 22d of February, 1718." The act of June 11, 1879 (P. L. 126), provides that, “in all cases where a wife has been deserted, abandoned or driven from her home by her husband, it shall be lawful for her to bring suit in any of the courts of this commonwealth, against her husband or any other person or persons, without the assistance of intervention of a trustee or next friend,

in same manner and with like effect as if she were sole and unmarried." The act of June 3, 1887 (P. L. 332), provided that property owned, acquired, or earned by a married woman shall belong to her, and not to her husband. Under this act it was held that wages of her labor were included. Lewis's Est., 156 Pa. 337, 27 Atl. 35. And under the act of June 8, 1893 (P. L. 344), which supplied the act of 1887, it was held that, though the word "earnings" does not appear in the later act, personal services are a species of property, and earnings acquired by them are equally within the act. Nuding et al. v. Urich, 169 Pa. 289, 32 Atl. 409. Under these statutes and decisions it is clear that a deserted wife may sue separately in her own name for compensation for her services and earnings, and, if she may thus recover for what she has acquired as her property in the past, she may certainly recover for the loss of capacity to acquire other property of the same kind in the future.

In an action by a woman, a passenger on a street car, to recover against the railroad company for injuries received from an intoxicated passenger, where the only negligence alleged was allowing the man to enter the car when he appeared intoxicated, it was error to submit the case to the jury where the evidence showed that there was no appearance of intoxication until he was asked to pay his fare.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1307.]

Appeal from Court of Common Pleas, Schuylkill County.

Action by William Brehony and Delia Brehony against the Pottsville Union Traction Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, POTTER, and STEWART, JJ.

R. H. Koch, for appellant. George M. Road and M. A. Kilker, for appellees.

STEWART, J. A passenger, more or less under the influence of drink, who had refused to pay his fare when demanded, and thereupon became disorderly in resisting the conductor who was attempting to eject him, gave a violent kick directed at the conductor, but which struck the plaintiff, Mrs. Brehony, a married woman occupying a seat opposite in the car, and seriously injured her. The action was brought by the injured woman and her husband, William Brehony, against the traction company to recover damages for the injuries sustained, on the ground that the company unlawfully and negligently permitted the person who inflicted the injury to get on the car and ride therein while visibly intoxicated. This is the only negligence charged in the statement filed. We must assume, therefore, that in ejecting the unruly passenger the conductor was strictly in the line of his duty, and that he used no greater violence and created no greater disturbance than the circumstances made necessary.

We have the single question presented, whether it was negligence in the conductor to admit to the car the passenger who afterwards inflicted the injury. The averment in the statement of cause of action is that this person was visibly and plainly intoxicated. The evidence supported the averment. Several of the witnesses say he was drunk. Others say he was visibly intoxicated, and others that they thought he was somewhat intoxicated, but not to a serious degree. All spoke from what they saw of his behavior after he was on the car, and all but one or two derived their opinion from his behav ior while in altercation with the conductor. None spoke of his conduct while approaching the car or entering it, and all say that while seated, and up until the altercation arose, he was conducting himself properly, giving no offense to any. It is impossible from the evidence to determine the degree of the man's intoxication. We have simply the case of a man intoxicated by liquor. As that expression is commonly used, it indicates nothing as to the degree. It may mean much, or may mean very little. One thing is clear, the man was not so intoxicated as to require help. He entered the car unaided, and in a way that attracted no attention and excited no comment. The same is true of his conduct in the car until the controversy began. One of plaintiffs' witnesses says that she saw him running to the crossing in order to take the car. The case was submitted to the jury in a charge which did not with suf

ficient clearness confine the inquiry to the point really in issue; and, in view of the great latitude allowed them, it is impossible to know certainly what the jury found with respect to the intoxication, if anything. In the view we take of the case, it is not material that we should know. The case did not call for a submission. It is the duty of a conductor to exercise a watchful care for the safety of his passengers; and this duty may require him under certain conditions to refuse to admit into his car a person applying. The measure of care he is bound to exercise in doing so we are not now called upon to consider. If one applying for admission bears upon his persons signs convincing to the ordinary mind that he is afflicted with a dangerous and contagious malady, it is manifestly the duty of the conductor to exclude him. If one evidently a maniac applies, the duty to reject is quite as manifest. If it be said these are extreme cases, the answer is that only in extreme and exceptional cases does the duty arise. In the cases we have mentioned common prudence should inform the conductor that the admission of either I would be attended with danger to the other passengers, and it would be negligence in him to allow it. But such danger cannot be affirmed of admitting a person who is simply intoxicated. Intoxication is not infectious; nor does it so ordinarily express itself in violence that disturbance of the peace of the car is to be reasonably apprehended when an intoxicated person is admitted. There may be, and doubtless are, exceptional cases where the intoxication is so gross, the conditions resulting therefrom so offensive, the conduct of the individual so unbecoming and violent, as to justify, and indeed require, his exclusion. If this was the condition of the offending passenger here, so obvious that the conductor should have observed it, such facts should have been made to appear as part of the plaintiffs' case. It was essential to a recovery. The case went to the jury to determine the question of the conductor's negligence from the testimony of witnesses, none of whom saw anything in the appearance or conduct of the man as he entered the car to attract attention or excite suspicion. These witnesses agree in saying that he subsequently gave unmistakable evidence of being intoxicated; but their evidence is in entire accord that up to the time the altercation with the conductor arose he was conducting himself peaceably and inoffensively. That the jury rendered a verdict for the plaintiffs can only be explained on the theory that, under the latitude allowed by the court in the charge, they rested the conductor's negligence upon something not charged, and therefore outside the case. The only question was whether it was negligence to admit this passenger. Defendant's ninth point was: "Under all the evidence in the case the verdict of the jury must be for the defendant." Its refusal is made the subject of the fifth as

signment of error. This assignment is sustained.

Judgment reversed.

(218 Pa. 36)

COMMONWEALTH V. DEITRICK. (Supreme Court of Pennsylvania. April 29, 1907.)

1. HOMICIDE-Burden OF PROOF.

On trial for murder, it is reversible error to instruct that the burden is upon the defendant to convince you beyond a reasonable doubt that the killing of the deceased was purely accidental before he should be acquitted upon that ground."

[Ed. Note. For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 275, 276.] 2. SAME-APPEAL-PREJUDICE.

Where, on a trial for murder, the defense was that the killing was accidental, the court on appeal cannot say that error in an instruction as to the burden of proof on such issue was not prejudicial to defendant.

Appeal from Court of Oyer and Terminer, Montour County.

Peter Deitrick was convicted of murder, and appeals. Reversed.

Argued before MITCHELL, C. J., and BROWN, MESTREZAT, ELKIN, and STEWART, JJ.

Fred Ikeler and Wm. Kase West, for appellant. H. M. Hinckley and Chas. P. Gearhart, Dist. Atty., for the Commonwealth.

ELKIN, J. At the trial in the court below on an indictment charging murder, under the plea of not guilty, the defendant relied upon the defense of accidental killing. The learned trial judge charged the jury as follows: "We further say to you that the burden is upon the defendant, Deitrick, to convince you beyond a reasonable doubt that the killing of Jones was purely accidental before he should be acquitted upon that ground." And this instruction has been assigned for error. Under the plea of not guilty the defendant may show that the killing was accidental, and, if the testimony satisfies the jury that the killing was the result of an accident, they should return a verdict of not guilty. We are not familiar with any authority which holds that, when such a defense is set up, the burden rests upon the defendant to show that the killing was accidental beyond a reasonable doubt. Such a rule would shift the burden of proof from the commonwealth, whose duty it is to establish the guilt of the defendant in all cases beyond a reasonable doubt. The defense of accidental killing is clearly distinguishable from that of an alibi or insanity, in which cases it has been held that the burden of proving such defenses is on the defendant. No Pennsylvania cases have been called to our attention in which the exact question raised by this appeal has been decided, but the rule recognized by many text-writers and established in some jurisdictions is that the burden in homicide cases where the defense