Feb. '97, 25. Superior Court. February 10, 1897. jury. There was sufficient evidence to make its McClosky and wife v. Dubois Borough. submission necessary. The motion for judgment non obstante must therefore be refused. "As to the motion for a new trial nothing has been shown to indicate that the verdict is excessive or that it would likely be less upon another trial. That the judgment may be different or for a larger amount than I would have favored, if a juror, is not important. As before stated, the case was one of fact for the jury and the amount of the verdict is not so much out of place as to demand granting a new trial on that account. The strong Negligence-Foot walks, care of-Notice of defects-Professional ethics-Observance of proprieties-Language of counsel. In an action to recover for an injury caused by a defective sidewalk, an instruction as follows: "The question is not merely whether the sidewalk was defective, but whether the defects in it were noticeable to all passers by, because if the defect was latent or hidden, and not observable by those who used the sidewalk, the borough cannot be held liable for it," "the defect must be so notorious as to be evident to all passers;" is a correct statement est ground for new trial is the alleged misconduct of the law. An allusion by counsel in his address to the jury of possible personal consequences to the jurors themselves in the event of a verdict of a certain character, is improper and would justify the Court in granting a new trial, but a refusal to do so does not constitute error for which an appellate Court will reverse. References by counsel to the physical infirmities or personal peculiarities of witnesses having no connection with the matters involved in the issue, are in exceedingly bad taste and grossly violate professional ethics, and deserve the rebuke of the Judge. Appeal of Dubois Borough, defendant, from the judgment of the Common Pleas of Clearfield County, in an action of trespass by John McClosky and Izett McClosky, his wife, for the use of Izett McClosky, to recover for an injury caused by the plaintiff's falling or breaking through a foot walk in Dubois borough, alleged to have been negligently left in a condition needing repairs. Upon the trial of the cause a verdict for $825 was rendered in favor of the plaintiff, subject to a point reserved, it being the third point submitted by the defendant as follows: on the part of the plaintiff's counsel in the closing address to the jury. He made statements therein not warranted by the evidence, which was highly improper, yet, inasmuch as it was stopped upon attention of the Court being called to it, I do not think the jury were influenced by it to the prejudice of defendant's cause." The errors assigned were the charge of the Court, and the ruling on the reserved ques tion. W. C. Pentz, for appellant, cited Lohr v. Philipsburg, 156 Pa. 246. Bullard v. Boston & Maine R. R., 5 Atl. 838. A. L. Cole, (D. S. Herron with him), for appellee. Applying the rule in the case of Ralpho v. Moore, 68 Pa. 408, cited by appellant, the condition of the walk was clearly sufficient to give constructive notice, as the Court there says: "That the evidence of the plaintiff in this case "The defect must be so notorious as to be eviis not sufficient to charge the defendant with constructive notice of the foot walk being out of repair on which the alleged accident occurred, and the verdict should be for the defendant." Subsequently a rule for a new trial was refused and a rule for judgment non obstante veredicto was discharged and judgment entered on the verdict. The Court, GORDON, P. J., delivered the following opinion: dent to all who have occasion to pass the place or to observe the premises." It is nowhere decided that every person who passes over it must see it, but that they might see it by observing the walk. The Judge in such a case cannot be charged with error because he said "it is not a question whether all passers-by actually noticed the defect, but whether it was noticeable." "If the hole was of such a character as to be noticeable to those who looked, it is all the law requires." "I am not convinced that any error was committed by the Court on the trial of this cause. As to the reserved question, am convinced it would have been error to take the case from the jury Rosevere v. Osceola Mills Borough, 169 Pa. 555. and direct verdict for defendant as requested in A very comprehensive and sound rule is laid the third point, which was refused with the legal down by Mr. Justice MITCHELL, in Ely v. Railquestion contained therein reserved. Whether way Co., 158 Pa. 236, and adopted in Gray ". the evidence was sufficient to establish construc- Penna. R. R. Co., 172 Pa. 383, on this question of tive notice to the borough of the defect in the negligence. sidewalk causing the injury in question was for the Davidson v. R. W. Co., 171 Pa. 522. March 17, 1897. SMITH, J. The plaintiff re- was observable to the casual pedestrian should covered a verdict for damages because of per- also be observable to those who were required sonal injuries alleged to have been received by by law to give it attention, and we cannot say that falling through a plank sidewalk in the borough the jury erred in holding the borough to a measof Dubois. ure of duty commensurate with the existing conditions. The case presented questions of fact as to the condition of the footwalk, and the conduct of the The allegation that the Court failed to point plaintiff and of the officers of the borough. Was out to the jury the character of the defect of which the walk safe, or was it out of repair and danger-notice will be imputed to borough officers, as ous? Had the borough authorities actual or con- complained of in the fifth assignment of error, structive notice of its alleged defects, and were is not borne out by the facts. The Court told they negligent in failing to keep it in proper re- the jury that: "The question is not merely whepair? Was the plaintiff injured because of the neg- ther the sidewalk was defective, but whether the ligence of the borough officers having charge of defects in it were noticeable to all passers-by, the walk, and without fault on her part? If so, because if the defect was latent or hidden and not to what extent, and what was reasonable com-obesrvable by those who used the sidewalk, the pensation therefor? There was sufficient evidence borough cannot be held liable for it," and the in relation to these questions to warrant the sub- learned Judge repeated the instruction that "the mission of the case to the jury, and this was done defect must be so notorious as to be evident to with proper instructions for their guidance. all passers," and quoted from opinions of the Supreme Court to the same effect. The evidence complained of and made the basis of the first assignment of error was properly ad- While there is nothing on the record which mitted, accompanied as it was by testimony that would justify us in ruling upon and giving effect there had been no change in the condition of the to the fourth assignment, the matters there obfootwalk where the plaintiff was injured between jected to deserve to be noticed. References by the time of the accident and the time at which it counsel to the physical infirmities or personal was repaired by the witness: Lohr v. Philipsburg peculiarities of witnesses, having no connection Borough, 165 Pa. 109; Davidson v. Sanders, 1 with the matters involved in the issue, are in exPa Super. Ct. 432. ceedingly bad taste and grossly violate profesThe defendant's third point, the refusal of sional ethics. These, however, are matters which which forms the second assignment, asked the are to be regulated mainly in the forum of honor Court to declare the evidence insufficient to by an observance of the proprieties. But the statecharge the borough with constructive notice of ment to the jury that if they should find that the the dangerous condition of the walk. There was "walk was good, we will have this testimony enevidence that the planks were rotten and had grossed and put your names to it and hang it up been patched in places, and that this had been in the Court house and call the attention of every observed by various persons, for periods ranging person to it," has the aspect of a threat, and for from six weeks to one year preceding the acci- that reason should not be tolerated. In his opindent. With such testimony in the case, it would ion discharging the rule for a new trial the learned have been error to withdraw the question of no- Judge, in referring to the closing address of the tice from the jury. The facts of this case differ plaintiff's counsel, said: "He made statements materially from those in Lohr v. Borough, supra. not warranted by the evidence, which was highly In that case there was no obvious defect in the improper, yet inasmuch as it was stopped upon sidewalk, and from the plaintiff's evidence it was attention of the Court being called to it, I do not clear that none could be observed in the exer- think the jury were influenced by it to the precise of a reasonable supervision by the borough judice of the defendant's cause." But whether officers. The defect shown was one which was dis- the jury were influenced by the objectionable lancovered only after a special examination and the guage or not, it was impossible for the learned witness who made this testified that it could not Judge to know, and as they were not told that the be otherwise seen. In the present case there was threat which it contained was not to be carried testimony to the effect that the walk was ele- into effect, it is quite possible that it may have vated some two feet from the ground, and that secretly influenced them. For this reason, and as its defective condition was obvious to those pass-a deserved rebuke to counsel employing such ing over it, without special examination. Un-tactics, the Court should have granted a new trial. der this evidence, it was for the jury to determine Jurors should be absolutely free to discharge whether the sidewalk should not have received their duties undeterred by fear of personal concloser attention as its decay progressed. What sequences of any description, and it is the duty of Courts under all circumstances not only to either to inquire into its regularity or its merits; protect them from every form of intimidation but but it is equally true that he is not precluded from to promptly punish any attempt at intimidation receiving testimony to show that since its rendior any other improper influence. tion it has been paid or otherwise satisfied." Feb. '97, I. Superior Court. W. C. S. McCormick's Appeal. Auditors-Findings of— When disturbed. The specifications of error are all overruled This question of fact coming within the scope and the judgment is affirmed. of the legitimate power of the auditor, has been found by him against the appellant. The Orphans' Court, upon exceptions to the report of the auditor, confirmed his finding of fact. The character of the testimony adduced upon the one February 9, 1897 side and the other to support or refute the fact was such as is peculiarly the province of an auditor to pass upon and determine. This is clearly shown by his finding, which is as follows: "There was a wide difference of opinion in the witnesses called by the several parties as to the value of the property obtained by Mr. McCormick by purchase at the sale. From the character of the witnesses, their conduct on the stand, and the knowledge they had of the value of the property when sold, together with the fact that no evidence was produced that Mr. McCormick, after the effort George Shaffer made to obtain the property, made any demand or effort to get the balance of the property purchased at the sale; I find that the value of the property he received was in excess of the amount of the debt, interest and costs of the judgment at the time of the sale." regu Whilst an auditor cannot go behind the judgment of a Court of competent jurisdiction to inquire into the larity or merits of a judgment, yet he is not precluded from receiving testimony that it has been paid or other wise satisfied, The findings of fact by an auditor, confirmed by the Court below, will not be disturbed by the appellate Court except in cases of fraud, clear mistake, or manifest lack of due consideration. Appeal of C. S. McCormick, from the judgment of the Orphans' Court of Clinton County, confirming the auditor's report upon exceptions to the account of the administrator of the estate of John McGonigal, deceased, and thereby declaring the judgment of appellant paid. The point in question is fully set forth in the opinion of the Superior Court, infra. A. F. Ryon and C. LaRue Munson, for appellant. H. T. Harvey, for appellee. April 12, 1897. BEAVER, J. A single assignment of error brings before us in this case a single question of fact, pure and simple. Was the judgment of Potter, of which the appellant is the assignee, against John McGonigal, paid prior to McGonigal's death? The question was raised before an auditor appointed to distribute the balance in the hands of the administrator of John McGonigal. It was within the power of the auditor to consider this question. If authority for this proposition were needed, it will be found in Borland's Appeal, 66 Pa. 472: "It is certainly true that an auditor appointed to distribute the proceeds of a sheriff's sale cannot go behind the judgment of a Court of competent jurisdiction | It is impossible for an appellate Court to know the character of the witnesses produced, to judge of their conduct upon the stand, of their knowledge of the facts as to which they testify, of their memory and candor, hence the reasonableness as well as the necessity of the rule so often laid down and SO fully established "that an appellate Court will not disturb the findings of fact made by an auditor and confirmed by the Court below, except in cases of fraud, of clear mistake, or of manifest lack of due consideration": Becker v. Yeager, 1 Pa. Super. Ct. 107; Lewis's Appeal, 127 Pa. 127; Hess's Estate, 150 Pa. 346. The finding of fact by the auditor in this case was based upon competent and sufficient evidence, was duly considered, and has been approved by the Court below. We can find nothing in a careful review of the facts of the case which would warrant us in disturbing the conclusion reached. The decree of the Orphans' Court is, therefore, affirmed, and the appeal dismissed at the costs of the appellant. W. C. S. WEEKLY NOTES OF CASES. VOL. XL.] FRIDAY, MAY 21, 1897. Supreme Court. [No. 10. "A person shown not to have been heard of for seven years by those who, if he had been alive, would naturally have heard of him, is presumed dead, and the burden of proof is upon those who deny the death." Answer "I affirm that proposition as an abstract proposition of law, but it must be considered with reference to the domicile or permanent home of the absent party. A man may leave his home and be absent from that home, but if he establishes a home in another community, or February 25, 1897. country, and that becomes his permanent home, Francis v. Francis. Feigned issue-Devisavit vel non-Marriage- tion is that life continues. it cannot be said that he is absent from his known domicile." (First assignment of error). "Fourth. The presumption of death arising from the absence of the person for seven years unheard from stands as competent and satisfactory proof until it is successfully rebutted by competent evidence to the contrary.” A presumption of death is raised by the absence of a person from his domicile unheard of for seven years; absence in this connection means that a person is not at the place of his domicile and that his actual residence is un- Answer "I affirm that proposition. Of course, known. But when a person removes from his domicile if this man Watkins had left Providence, left in this State, to establish a home for himself in another State or country, at a place well known, this is a change his home without saying where he was going, or of residence, and absence from the last domicile is that if he had left his home on a business trip or pleasupon which the presumption must be built. If alive ure trip, and nothing had been heard of him for when last heard from at his new domicile, the presump- the period of seven years, then the presumption would arise that he was dead. But if he went away for the purpose of establishing a permanent home somewhere else, and he was known to be alive there, then the presumption would not arise until he would be absent from that home and unheard of there." (Second assignment of error). The defendant submitted, inter alia, a point as follows: Appeal of Evan M. Francis, from the judgment of the Common Pleas of Lackawanna County, entered in a feigned issue devisavit vel non certified from the Orphans' Court. Rachel Francis died in April, 1895, leaving a will which was proved before the register of wills of Lackawanna county. On petition of the plaintiff, the register granted a citation to the parties "The mere fact that a person had been absent interested to show cause why the probate should for seven years without more, is not sufficient to not be stricken off and the letters testamentary raise the presumption of death." This was afvacated. On hearing the probate was sustained. firmed. (Fourth assignment of error). An appeal was taken to the Orphans' Court and In its general charge the Court said, inter alia: an issue was framed at the request of the plaintiff "The mere failure to hear from an absent person and certified to the Court of Common Pleas as for seven years who is known to have a fixed follows: First, at the time this will was signed place of residence abroad, that is a person who to wit, the 14th day of June, 1884, was Rachel has left his home and gone and established a Francis a single woman? Second, did Rachel fixed place of residence somewhere else, the mere Francis after she signed the will contract a law-failure to hear from such a person would not be ful marriage with John Williams? sufficient to raise the presumption of his death, On the trial, before GUNSTER, J., the facts ap- unless due inquiry had been made at such a place peared as follows: without getting tidings from him; that is without due inquiry having been made, not at the home which he left, but at the home to which he had Rachel Francis, the testatrix, was married to one Thomas Watkins in November, 1870. Watkins was last heard from as being in Patagonia, gone and established a second domicile, due inin May, 1876. The plaintiff alleged that Rachel Francis, the testatrix, was married to one John Williams, in 1886. The will was dated the 14th day of June, 1884. The plaintiff presented to the Court, inter alia, points which, with their answers were as follows: quiry must be made there, and the period does not begin to run until seven years after he has ceased to be heard of from the second domicile." . . . "If Thomas Watkins went to Patagonia for the purpose of making it his permanent home, and he did make it his permanent home, then the presumption which would arise from an absence of seven years would not apply to the absence sumption of life continues and the presumption from his home here in Scranton or at Bull's of death does not arise until the expiration of Head, at the end of seven years, but it would ap- seven years from the time of his disappearance, ply to the seven years from which he was absent unless there is evidence that the person was at from the home which he had permanently estab- some particular date in contact with some specific lished in Patagonia, and the inquiry as to his ab-peril as a circumstance to quicken the operation sence must be made, not at Bull's Head or in of time. the city of Scranton, but must be made at the home which he had permanently established." (Fifth and sixth assignments of error). The verdict was as follows: That Rachel Francis, testatrix, was a married woman at the time of the execution of the will in question, to wit, on the 14th day of June, 1884, and been previously married to Thomas Watkins, and that Thomas execution of the said will was not lawfully married with John Williams. Second. And that said Rachel Francis after the execution of the said will was not lawfully married with John Williams. The plaintiff took this appeal and assigned error, inter alia, as above indicated. W. S. Hulslander, (A. A. Vosburg with him), for appellant. A person is presumed to be dead after the lapse of seven years from the time he was last actually. heard of. The English rule that of a person of whom no tidings are received, the presumption is that life ceases at the end of seven adopted in this State. Burr v. Sim, 4 Wh. 150. years, is If this law be correct, then the rule is that the person is presumed to be dead after the lapse of seven years from the time he was last actually heard of. This rule must certainly apply as to the friends and relatives at the home which he left. The presumption of law is that the life of an absent person expires at the end of seven years from the time he was last known to be alive. Bradley v. Bradley, 4 Wh. 173. A person is presumed to be dead after the lapse of seven years from the time when he was last actually heard of. Whiteside's Appeal, 23 Pa. 114. The presumption of death arising from the absence of the person for seven years unheard from stands as competent proof until it is successfully rebutted by competent and satisfactory evidence to the contrary. Thomas v. Thomas, 124 Pa. 646. Schoneman's Appeal, 174 Pa. 1. Proof being made that the person had absented himself from the State for seven years the presumption of his death would be raised, which may be rebutted by proof of his having been alive within the seven years. Wambaugh v. Schenck, 2 N. J. L. 229. The presumption of death after the absence of seven years must be overcome by proof that the person was living. Hoyt v. Newbold, 45 N. J. L. 219. It is not necessary that the party be proved to be absent from the United States; it is sufficient, if it appears that he has been absent for seven years, from the particular State of his residence, without having been heard from. Innis v. Campbell, I Rawle, 373. The presumption of death arising from absence, stands as competent proof of death only until it is successfully rebutted by competent and satisfactory evidence. Thomas v. Thomas, 124 Pa. 646. Notwithstanding there was testimony of the reported marriage of these parties, the evidence alluded to shows that it could not have been the general reputation. There were witnesses who practically lived with her and saw no evidence of marriage; and not only that, but both parties are found denying it. Both reputation and cohabitation must be shown to establish a marriage. Where no proof of actual marriage exists, cohabitation is not sufficient. Commonwealth v. Stump, 53 Id. 132. April 19, 1897. WILLIAMS, J. This was an issue devisavit vel non. The contestants denied the validity of the will, alleging that Rachel Francis, the testatrix, was a single woman when it was made in 1884, and that it was revoked by her subsequent marriage in 1886. She had been married Where a person leaves his home and place of to Thomas Watkins in 1870, who, prior to 1876, residence and is not seen, heard of, or known to had left his home in Scranton and gone with a be living for the term of seven years thereafter, he colony to settle in Patagonia. The colony was is presumed to be dead; but in such case the pre-established, Watkins as a member of it was heard |