Company. ciency of-Total loss-Waiver. Transportation Company, 34 Conn., 554. | Edelson v. Norwich Union Fire Insurance In Duggan v. Baltimore & Ohio Railroad, 159 Pa., 248, it was held that "the Fire insurance - Proofs of loss-Sufficonductor of a railroad train has general power and control over the train and all persons on it, with authority to compel observance of the regulations of the company, to preserve order and to employ the whole force of the trainmen, and of passengers willing to assist, for these purposes. These extensive powers involve the correlative duty to protect passengers, not only from injury by negligence or accident, but also from violence and illegal annoyance or interference by other parties.' In Ham v. Delaware & Hudson Canal Company, 142 Pa., 617, it was held that, "although one who enters a train may have purchased a ticket entitling him to ride thereon, the conductor is entitled to have proof of that fact by seeing the ticket; and if, being unable to produce it, he refuse to pay fare, he may be ejected This proposition was raised by the learned counsel for the defendant upon the trial; but, under the testimony of the plaintiff, we were unwilling in this case to go that far. It will be remembered that the plaintiff claimed that he gave his ticket to this very conductor who ejected him, and it was because of this we charged the jury that, "if the plaintiff had given his ticket to the same conductor, and, in answer to a new demand for a ticket, he replied, as he has testified, that he had no ticket, and had paid his fare once and would not pay it again, and this was true, the conductor was not warranted in putting him off on account of any such expressions." Counsel for the plaintiff has submitted no brief in this case, in accordance with the Rules of Court; but, on an examination of the law pertaining to it, I am of the opinion that it was properly tried, and the rule for a new trial is, therefore, discharged. Rule discharged. Where proofs of loss were not served on an insurance company until sixty-two days after a fire, or on the agent who countersigned the policy until thirty days after the fire, such service is too late to comply with the Act of June 27, 1883, and the requirement in the policy that the proofs of loss shall be served within sixty days. The rule that proofs of loss need not be furnished in case of a total loss applies only where there is a total loss of a building or a single chattel, and not where the loss is of a number of chattels or stock of merchandise. An agent of an insurance company has no power to waive a requirement of the insured as to filing proofs of loss. does not arise where the plaintiff did not avail The question of waiver of proofs of loss himself of any alleged waiver and voluntarily submitted proofs of loss. A letter written by the agents sixty-two days after the fire is not admissible to show waiver as to time of filing proofs of loss. All questions as to the sufficiency of proofs of loss and whether or not they are filed in conformity with the requirements of the policy are matters for the court and not for the jury. Rule for a new trial. C. P. of Lancas ter County. January Term,1 913, No. 88. B. F. Davis, for plaintiff and rule. March 28, 1914. Opinion by HASS- This action is upon a policy insuring certain personal property of the plaintiff against loss by fire, which was damaged or destroyed by fire on August 15, 1912. The trial resulted in a verdict for the defendant, and we are now asked by the plaintiff to grant a new trial. The only defense offered at the trial was that the plaintiff did not, "within sixty days after the fire. render a statement shall be deemed to have been complied | of a building or of a single chattel that with if the proofs of loss have been served on the agent who countersigned the policy within twenty days of the date of the fire. the insured need not furnish proofs of loss as a condition precedent to his right to recover, and that the rule does not apply where, as here, the property insured consists of a number of articles of personal property. Judge Morrison, in delivering the opinion of the Court, says: The testimony at the trial showed that proofs of loss, as required in the policy, were not served upon the defendant company until sixty-two days after the fire," In short, all of the cases cited, as well and that the same were not served on the agents who countersigned the policy until thirty days after the fire. In either case the service was too late. It was contended by the plaintiff that the loss was a total loss, and on that account he was not held to a strict compliance with the conditions of his policy in order to entitle him to recover. The property insured consisted of plumbers' tools and supplies. Most of the latter, consisting of radiators and iron and brass pipes and fittings, were in the cellar of the house where the fire occurred, but were not in the fire. It was testified that they were injured by water running upon them. The credibility of the witnesses who testified that they were so damaged by water as to be useless for any purpose other than for junk was for the jury. This evidence was contradicted by a witness for the defense who saw the radiators after the fire, and testified that they were in the same condition as they were in before it. Following Rice v. Insurance Company, 17 Sup., 261, where it is decided on the authority of numerous cases cited, that when the loss is total, and the insurer is so notified, proofs of loss are not required to entitle the insured to recover, unless the company requests them to be furnished, we submitted the question to the jury whether the loss sustained by the plaintiff was total, and they found that it was not. as those we have found, holding that where the property insured is totally destroyed, and the company has prompt notice, and sends their adjuster to attempt to make a settlement and no further proofs are required, are cases of insurance of buildings, or a single chattel, and we are not aware that the rule applies to insurance of a stock of merchandise. We believe the decisions make a distinction of the character indicated by us, and there seems to be a reason for this. Where a building, or a single chattel, is insured and totally destroyed by fire, it is easy for the insurance company to procure evidence as to the character and value of the building or chattel, but in the case of a stock of merchandise in a store, it is very different. It would be dangerous to establish a rule in the latter case that if the insured gave prompt notice that his entire stock of goods were burned and the company tried to make a compromise with him, which he rejected, that he would then be relieved from filing the proofs of loss required by his policy." Such a rule would open the door wide for fraud and trickery." It is also contended that we erred in not permitting the plaintiff at the trial to show a conversation with the Widmyer-Prangley Company, local agents of the defendant company, in which they told him that the defendant company would not pay the loss because the premiums on the policy had not been paid, as it is claimed that this amounted to a waiver of the defendant's right to have proofs of loss filed with it within sixty days of the fire. A more careful examination of the cases on this subject than we were able to make at the trial convinces us that we erred in submitting this question to the jury, but it was not an error of which The plaintiff was subsequently perthe plaintiff can complain, as it was giv-mitted, there being no objection on the ing him more than he was entitled to. part of the defendant, to testify to it. In Lapcevic . Lebanon Mutual Insur- He said the conversation occurred when ance Company, 40 Sup., 294. it is decided he filed the proofs of loss with them that it is only where there is a total loss thirty days after the fire. Butter Co. v. Insurance Co., 20 Sup., 384. Even since the passage of the Act of | raises the question of whether the suffiJune 27, 1883, P. L. 165, permitting ciency of the proofs of loss is for the proofs of loss to be served on the agents jury or for the Court. who countersigned the policy, an agent This was a matter for the Court, as it of an insurance company has no power is well settled that all questions of the to waive a requirement of the insured as sufficiency of the proofs of loss, and to filing proofs of loss: Kness v. Insur- whether they are filed in conformity with ance Co., 31 Sup., 521; Hottner v. In- the requirements of the policy are matsurance Co., 31 Sup., 461; Dunn v. In- ters for the Court and not for the jury: surance Co., 34 Sup., 245. The conduct Insurance Co. v. Sennett, 41 Pa., 161; of the plaintiff shows that he did not Kittanning Insurance Co. v. O'Neill, 110 consider any conversation with the agents Pa., 548; Cole Bros. 7. Insurance Co., of the defendant company as a waiver of 188 Pa., 345; Cummins v. German Amerthis requirement of its policy, as he sub-ican Insurance Co., 192 Pa., 359; Elgin sequently prepared and filed proofs of loss, though too late to meet the requirements of the policy. In Ulysses Elgin Butter Co. v. Insurance Co., 20 Sup., 384, it is decided that the question of plaintiff's being relieved from the duty of furnishing proofs of loss, or a waiver on the part of the defendant of the necessity for the furnishing of the same, does not arise where it appears that the plaintiff did not avail himself of any alleged waiver and voluntarily submitted proofs of loss. We are convinced that there was no testimony that would have justified a jury in finding that the defendant had waived the filing of proofs of loss, or led the plaintiff to think so, and it was, therefore, not error for us to have refused to submit this question to the jury. It is also contended that we erred in not admitting a letter dated October 25, 1912, sixty-two days after the fire, in which the same agents denied liability. This being after the time when the proofs of loss were required to have been filed by the terms of the policy would be no proof of a waiver by the defendant company of this requirement, and it, therefore, was not error for us to have refused its admission. It is also contended that we "erred in our charge to the jury in saying that the proofs of loss furnished to the agents of the defendant company, WidmyerPrangley Company, about thirty days after the fire, was not filing proofs of loss with the company, nor such proofs as the law required, as the same was a question for the jury." This is not the language of our charge, but the reason We do not think any error was committed on the trial of this case of which the plaintiff can complain, and we therefore discharge the rule for a new trial. Orphans' Court. Estate of Anna L. Schied Deceased. Intestate law-Desertion. The father of an intestate will not inherit, where he deserted and abandoned his wife Adjudication. O. C. of Lancaster Anna L. Scheid died testate July 4, 1908. The following are the essential parts of her will: "Second, I give and bequeath unto Rev. J. H. Melchoir, Rev. P. S. Hegel and Rev. James Sass each the sum of Twenty-five Dollars to be applied for masses for the repose of my soul. . . . "Fourth, I give and bequeath unto my nephew. William Charles Scheid, son of my brother Valentine W. Scheid, Fifty Dollars, and in case he should be in his minority at the time of the distribution of my estate. I appoint my brother, Peter A. Scheid, guardian to receive and care for the said bequest until such time as my said nephew shall have attained his majority. "Fifth, The rest, residue and remainder of my estate of whatsoever nature it may be, I direct to be divided into three equal shares and I give and bequeath one of said three equal shares to my mother, Anna M. Scheid, nee Schlegelmilch, one of said three equal shares to my brother, John F. Scheid, and the other of said three equal shares to my brother, Peter A. Scheid." Is Anna M. Scheid, her mother, died before her, and the legacy to her lapsed. As to the amount of it there is an intestacy. Peter Scheid, her father, is living. Ordinarily he would inherit. there any reason why he may not? We know of no precedent which even hints at the possibility of his exclusion. Section 3 of the Act of April 8, 1883, P. L., 316, provides: "In default of issue as aforesaid, and subject also as aforesaid to the estates and interests hereinbefore given to the widow and surviving husband, if any, the real estate shall go to the father and mother of such intestate, during their joint lives and the life of the survivor of them; and the personal estate not otherwise hereinbefore disposed of shall be vested in them absolutely; or if either the father or mother be dead at the time of the death of the intestate, the parent surviving such intestate shall enjoy such real estate during his or her life, and such personal estate absolutely." Unless by his own act he has parted with this inheritable interest, useless will be any attempt to deprive him of it. About thirty-eight years ago, in 1876, he deserted his wife and infant children and from that time to this has abandoned them and everything pertaining to them. His refusing them even humane consideration in their struggles for existence was an act of relinquishment, which is a giving up, renouncing of claim, therefore, constructively a transferring. By it he relased them from all moral obligations to him and transferred to them all rights which he otherwise would have had in them. Such as Such as his intention may be considered as confirmed by his act. They gave up nothing, but he is presumed to have given up everything where they were concerned. His act is sufficiently presumptive of a transfer to the other members of his deserted family of any interest he may have had in the estate of the decedent which he abandoned when only eight years old to put the burden on him to show the contrary, and which, not having done, he will not be permitted to participate in this distribution. The testatrix left to survive her as her next of kin, in addition to the two surviving residuary legatees, a brother. Valentine W. Scheid. William Charles Scheid is of age. Distribution was decreed accordingly. Tegal Miscellany. History of the District Court of the City and County of Lancaster. BY HON. CHAS. I. LANDIS. (See 30 Law Review, page 375.) A history of the establishment and abolition of the District Court of the City and County of Lancaster may not be important to the present generation, and it is easily ascertained by any one who is willing to make diligent search. A résumé of it may prove, however, not wholly uninteresting to the members of the Bar and to those of our citizens who delight in antiquarian research. It was the second Court of this character established in the State, the first one being in the County of Philadelphia. Therefore, to place the subject in concrete form for easy reference, I briefly sketch the substance of the Acts of Assembly relating thereto. The Act of March 27, 1820, P. L. 113, was entitled "An Act to provide for the erection of an additional Court within the City and County of Lancaster." Section I provided "that there shall be a Court of Record established in and for the City and County of Lancaster by the as Dauphin County was concerned; that County, after 1828, ceased to be part of the District. By the Act of April 14, 1828, P. L. 446, the Judges were required to reside within the bounds of their District, and under certain other supplements the jurisdiction of the Court was enlarged, but not to an extent requiring special comment. By the Act of April 8, 1833, P. L. 215, the County of York was made a separate District, and the respective District Courts were continued in force until May 1, 1840. Under the Act of March 11, 1840, P. L. 122, the District Court of the City and County of Lancaster was re-established and continued for ten years from May 1, 1840, and by the Act of March 29, 1849, P. L. 256, the Court was abolished, and its records. and business were transferred to the Court of Common Pleas. and also of the Associate and Additional Law Judges of the Second Judicial District of Pennsylvania. name and style of The District Court for the City and County of Lancaster,' which shall consist of a president, who shall have power to try, hear and determine all civil pleas and actions, real, personal and mixed, . . . provided that the said Court shall have no jurisdiction, either originally or on appeal, except when the sum in controversy shall exceed three hundred dollars." By authority contained in Section 2, suits of this character might, within a stipulated time, be transferred at the election of either party from the Court of Common Pleas to the new Court. The Act was to remain in force for four years. By the Act of March 10, 1823, P. L. 66, the County of Dauphin was added to the District Court, and the President Judge was authorized to exercise such powers within the County of Dauphin as were granted to him in the City and County of Lancaster. The Act of 1820 was thereby continued in force for four years more from March 27, 1824, and the salary of the Judge Sketches of the Judges of the District Court was fixed at $1,600. The Act of April 10, 1826, P. L. 277, continued the Act of 1820 and certain supplements (so far as they related to the District Court of the City and County of Lancaster) in force until the first day of May, 1833, and declared that the Court should consist of two Judges, namely, the President and Assistant Judge. The Governor was directed to appoint and commission an Assistant Judge. The Court was to have no jurisdiction, except as to cases then pending therein, either original or on appeal, unless the sum involved exceeded $100, and suits in the Common Pleas, where the sum in controversy exceeded $200, were, after May 1, 1826, to be transferred to the District Court, and the original jurisdiction of the Common Pleas, where the amount exceeded $200, was to cease. By the seventh section of the Act, the County of York was annexed to the District, and thereafter the District was composed of the City and County of Lancaster, the County of Dauphin and the County of York. This situation continued until March 27, 1828, when the Act of March 10, 1823, expired of its own limitation. It was not renewed by subsequent legislation so far CHARLES SMITH. BY HON. CHAS. I. LANDIS. The first Judge of this Court was Charles Smith. He was born in the City. of Philadelphia on March 4, 1765. He was the son of William Smith, D. D., Provost of the College of Philadelphia. His early education was under the care of his father, and he afterwards graduated from Washington College, Maryland, on May 14, 1783. He studied law with his brother, William Moore Smith, who resided in Easton, and he was admitted to the Philadelphia Bar in June, 1786, and to practice before the Supreme Court of Pennsylvania on January 8, 1787. He began the practice of the law at Sunbury, and then coming to Lancaster, he was admitted there at the May Term of 1787. He was a delegate to the Constitutional Convention of 1790, and was elected to the State House of Representatives from this county in 1806, 1807 and 1808. He was a member of the State Senate in 1816. 1819, he was appointed President Judge On March 27, |