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and making the entire family nervous, unhappy, ! “To make out a case of special injury to propand miserable. From time to time, before and erty from nuisance, something materially affectsince the filing of the bill, articles, such as cigar- ing its capacity for ordinary use and enjoyment ette stumps, orange peel, and quids of tobacco, must be shown. * Noises that distress were thrown by some one from the hospital and annoy physically and may affect health are side to and upon the Kestner property."

regarded as nuisances, and the ownership of [1] The trial judge also found that the property will not justify the use of it in that

way." hospital was equipped with the modern surgical and medical appliances, employed suf

In Ladies' Decorative Art Club's Appeal, ficient physicians and nurses, and used with 10 Sad. 150, 13 Atl. 537, a decree of the court promptness approved methods of relieving pa- below awarding an injunction was affirmed

In that case Thayer, P. J., tients from pain and suffering and of prevent by this court. ing the outbursts complained of. Also that said in the court below: shrieks and screams were of no greater fre

“The law upon the subject is well settled and quency than those emanating from weil-regu- plained of, it is a question of degree and locality.

very plain. Where a noisy nuisance is comlated 'hospitals treating the same number of If the noise is only slight and the inconvenience patients; that such noises are bound to oc- merely fanciful, or such as would only be comcur wherever sick or injured persons may be, plained of by people of elegant and dainty modes and particularly in a hospital where a large discomfort, a court of equity will not take

of living, and inflicts no serious or substantial number of persons are brought, or come, for cognizance of it. No one has a right to commedical and surgical treatment; and that plain that his next-door neighbor plays upon a defendant, wherever possible, prevented such piano at reasonable hours, or of the cries of

children in his neighbor's nursery, nor of any of outcries and stopped them as quickly as pos- the ordinary sounds which are commonly heard sible. These findings of fact were amply sup- in dwelling houses. On the other hand, if unported by the evidence. Under the author- usual and disturbing noises are made, and parities, the complainants were clearly entitled made, and if they are of a character to affect

ticularly if they are regularly and persistently to equitable relief.

the comfort of a man's household or the peace [2] Thus in 2 Joyce on Injunctions (1909) and health of his family, and to destroy the § 1068, it is said:

comfortable enjoyment of his home, a court of

equity will stretch out its strong arms to pre“Hospitals are not prima facie oș per se nui- vent the continuance of such injurious acts.” sances, but they may under some circumstances become nuisances and be subject to an injunc In the present case, the court below being tion against their maintenance or continuance, of opinion that the nuisance might be abated where the evidence is clear and certain."

by removing the operating room to some othIn 1 Wood on Nuisances (30 Ed. 1893) $ 9, er part of defendant's building, merely enit is said:

joined the carrying on of the hospital in the “The locality, the condition of the property, building adjoining complainants' premises, and the habits and tastes of those residing there, divested of any fanciful notions, or such as until such removal should be made. are directed by dainty modes and habits of liv [3] The decree also restrained defendant ing, is the test to apply in a given case (of al- from permitting persons occupying rooms in leged private nuisance). In the very nature of things there can be no definite or fixed stand- the hospital to throw refuse matter upon comard to control every case in any locality. The plainants' premises. The relief granted in question is one of reasonableness or unreason- this respect was properly allowed. The oc

of largely dependent upon the locality and its sur- cupants of the rooms were under the control roundings."

of defendant, and it was therefore responsible The law of the case is also thus sum for their actions, within the limits of that marized in 15 Am. & Eng. Ency. L. (2d Ed.)

control. 764:

Counsel for defendant criticise the terms “Although a hospital or asylum is not in it- of the injunction awarded by the decree as self a nuisance, its management may cause it to being uncertain, vague, and indefinite. The become grievously so; and where the existence effect of the injunction is, however, to reof the nuisance is unequivocally established, re- strain defendant from using its building as a luctant as the courts are to interfere with eleemosynary institutions, neither the status of hospital, during the continuance of the presthe hospital or asylum as a charitable organiza- ent internal construction, and while the emertion, nor the fact that it is of statutory creation, gency operating room is maintained in its constitute any justification for a continuance of such nuisance or interposes any defense to the present proximity to complainants' residence. abatement thereof."

It is apparent that the purpose was to require The same principle is also illustrated in the removal of the operating room to some Deaconess Home & Hospital v. Bontjes, 207 other portion of the building, where comIll. 553, 69 N. E. 748, 64 L. R. A. 215. The plainants would not be annoyed by the noises syllabus there reads:

emanating therefrom. The requirement in “The carrying on of a hospital in proximity this respect is, we think, sufficiently certain to complainant's dwelling may be enjoined as a and definite. private nuisance without a judgment at law,

[4] We do not see any merit in the objecwhere the evidence is clear and certain that the hospital, as conducted, injures the health of tion which is made to the amendment, which complainant's family and destroys their peace was allowed to be filed, to the original bill. and comfort."

The allowance was clearly proper, and it does In Sparhawk v. Pass. Ry. Co., 54 Pa. 401, it not appear that defendant was in any way was held, as set forth in the syllabus, that: prejudiced or injured thereby.

[5] It is suggested that, by reason of the Appeal from Court of Common Pleas, Philoversight of defendant's counsel in failing to adelphia County. examine carefully the amendment, no answer Assumpsit by the Central Market Street was filed to the averment with respect to the Company against the North British & Merthrowing of refuse on complainants' property. cantile Insurance Company of London and But any possible prejudice to defendant in Edinburgh on a fire insurance policy. From this respect was avoided by the agreement of judgment on verdict directed for plaintiff, complainants' counsel that the answer filed defendant appeals. Affirmed. should be considered as a denial of the facts Argued before FELL, C. J., and MESTREcontained in the amended bill. Testimony ZAT, POTTER, ELKIN, and MOSCHZISwas presented by both sides as to the deposit KER, JJ. of refuse on complainants' premises. We do

John G. Johnson and James Wilson Baynot see that defendant has any just cause to

ard, both of Philadelphia, for appellant. complain of the filing of the amended bill.

Thomas Stokes, of Philadelphia, for appellee. The assignments of error are all dismissed at the cost of appellant, and the decree of the court below is affirmed.

MESTREZAT, J. This is an action of assumpsit brought on a policy insuring the

plaintiff, then known as the Moving Pic(245 Pa. 272)

ture Company of America, against loss by · CENTRAL MARKET STREET CO.

V. fire to an amount not exceeding $2,500 upon NORTH BRITISH & MERCANTILE

its fixtures, furniture, improvements, and INS. CO. OF LONDON AND ED

betterments contained in the brick building, INBURGH.

Nos, 926–928 Market Street, Philadelphia. (Supreme Court of Pennsylvania. May 4, The defense was that the plaintiff company, 1914.)

in violation of its warranty, had stored cellu1. INSURANCE (§ 146*)-FIRE INSURANCE POL- loid moving picture films in the premises, ICY-CONSTRUCTION.

and that the fire which destroyed the propA fire insurance policy susceptible of two interpretations must be construed most strong-erty was due to the explosion or ignition of ly against the insurer.

the films. [Ed. Note. For other cases, see Insurance, The policy was issued on June 26, 1911, and Cent. Dig. 88 292, 294–298; Dec. Dig. $ 146.*) ran for one year, until June 26, 1912. It in2. INSURANCE (8 326*)-FIRE INSURANCE POL- sured the plaintiff against loss or damage ICY-CONSTRUCTION-PREMISES. Where a lessee of one floor of a building

by fire was insured against loss by fire of its furnish-Ito an amount pot exceeding $2,500, to the folings on that floor, which furnishings consisted lowing described property while located and conof appurtenances to a moving picture and tained as described herein and not elsewhere,

* On betterments and improveamusement parlor, and a clause in the policy to wit: * provided that it should be void if moving picture ments made to the building, chiefly masonry and celluloid films were kept "in the above-described carpenter work, decorations, painting, glazing premises," the word "premises” meant merely and electric wiring and fixtures; on fixtures the floor leased by insured, and did not include and furniture of every description, including those other parts of the building over which it carpetings, stage appliances, stationary seats, had no control, especially where the policy de- and all apparatus and appliances, appertaining clared that the extent of the insurance was to to the business of the assured as a moving picreimburse insured for the expense of better ture and amusement parlor (excluding moving ments or improvements paid for by insured, and picture machine and films). All while contained the only improved part of the building was that in the brick buildings, situate 926-928 Market occupied by him.

street, Philadelphia, Pa.” [Ed. Note. For other cases, see Insurance, The policy also contained the following: Cent. Dig. $$ 782–791; Dec. Dig. & 326.*]

"In consideration of the reduced rate at which 3. INSURANCE (8 377*)—ACTION ON FIRE IN- this policy is issued, it is warranted that no

SURANCE POLICY-BREACH OF CONDITION-moving picture films, composed in whole or in ESTOPPEL.

part of cellulose nitrate, commonly known as Where at the time of issuing a fire insur-celluloid' films, will be kept, stored, or handled ance policy the insurer knows or ought to in the above-described premises, otherwise this know that one of the conditions is inconsistent policy is void." with the facts, and the insured is guilty of no

The whole building was leased from the fraud, the insurer is estopped from setting up owner by one Lubin, who sublet the first the breach of such condition as a defense in an action on the policy.

story to the plaintiff company which used it [Ed. Note. -For other cases, see Insurance, as a moving picture theater or parlor. The Cent. Dig. 88 942, 966, 967, 975–997; Dec. Dig: basement and second floor of the building § 377.*]

were occupied by the General Film Com4. INSURANCE (8 392K)-ACTION ON POLICY-pany with a stock of moving picture films, ESTOPPEL BY ACCEPTANCE OF PREMIUMS. Where an insurance company accepts un

and the third, fourth, and fifth floors were earned premiums with knowledge of facts avoid- occupied by the Lubin Manufacturing Coming the policy, it is estopped to assert the avoid- pany, developing and printing moving picture ance in an action on the policy after a loss has films and manufacturing moving picture maoccurred. [Ed. Note. For other cases, see Insurance,

chines. The General Film Company furnishCent. Dig. 88 1041-1056, 1058-1070; Dec. Dig? ed the plaintiff with films for use in its busi$ 392.*]

ness in consideration of a certain weekly

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

sum for the service. It received three films, the building and as lessee, and that the comdaily, which were got at 8:30 in the morning pany was using or intended to use it as a and returned to the General Film Company moving picture parlor. The stage appliances at 11:30 in the evening of the same day. and stationary seats had been attached to the The plaintiff company never had on its prem- first floor and the betterments and improveises more than three films at one time which ments were made to this part of the building. were necessary for its daily exhibition. It The insurance, it will be noted, was upon the kept no films on the premises at night. It improvements, the fixtures, the personal propwas not connected in any way with the two erty, "and all apparatus and appliances aptenants of the other parts of the premises, pertaining to the business of the assured as and had no control whatever over any part a moving picture and amusement parlor (exof the building, except the first floor, which cluding moving picture machine and films)." was used by it in its daily exhibitions of All the property insured, therefore, was on moving pictures. No films were stored by the the first floor of the building, and was to be insured company in any part of the building, used by the plaintiff in its moving picture exbut films were stored by the General Film hibitions. The policy declares that the inCompany in the part of the building occu- tent of the insurance under the first item was pied by it. The plaintiff company paid the "to reimburse the assured (lessee) for the premium on August 14, 1911. A fire occurred expense of betterments, and improvements about 3:30 o'clock in the morning of January paid for by the assured.” These improve13, 1912, which totally destroyed the insur-ments were, therefore, made to that part of ed property.

the building occupied by the plaintiff as The facts are not in dispute. The learned lessee, which was the first floor of the buildtrial judge directed a verdict for the plain- ing. It is clear that the defendant knew that tiff on two grounds: (1) Because the war- the first floor had been altered and improved ranty in the policy was only a warranty by the plaintiff company as lessee and furagainst the keeping of inflammable films in nished by it to be used in moving picture exthe first floor rented by the plaintiff; and hibitions, and that the improvements, fix(2) because the defendant company, having tures, furniture, etc., placed on the floor by had notice, five or six months before the the assured were the property intended to fire, that inflammable films were stored upon be covered by the policy. That floor was the the premises, and having thereafter taken no "premises” occupied by, and in the control action either to cancel the policy or to assert of, the plaintiff. a right to an increase of the premium com The lease gave the plaintiff company no aumensurate to the risk, was presumed to have thority or control over any other part of the waived the warranty.

building or the right to use or improve any The contention of the defendant company part of it except the first floor. The company is that "the above-described premises,” con- could enter upon no other part of the premtained in the warranty clause of the policy, ises for any purpose, and could neither store refer to the whole building, and not to the or handle films on any other floor nor prohibit first floor, leased to and occupied by the the General Film Company or any other ocplaintiff as a moving picture parlor, and cupant of any part of the premises from that the storage of celluloid films in other storing or handling films in his part of the parts of the building than that leased to the building. It is apparent, therefore, that if plaintiff was a breach of the warranty. It is the plaintiff warranted against the storage of not claimed by the defendant that the use celluloid films in any other part of the buildof the three films by the plaintiff company ing than the first floor, it was without power during its business hours each day was pro- to compel compliance with the warranty. hibited by the policy, but that the storage of the lessees of the other parts of the building inflammable films in any part of the build- were in possession and had control of the ing by the other tenants avoided the policy. floors occupied by them. So far as the plain

[1] If the policy is reasonably susceptible tiff was concerned, those parties could use of two interpretations, it must be construed their parts of the building for storing commost strongly against the insurer, and this bustible films or for any other lawful purwould require us to hold with the learned pose. It is therefore not within the bounds court below and against the defendant's con- of reason that the plaintiff company would tention.

enter into a contract which it and the insur[2] We think, however, the word "prem- er knew it was powerless to comply with, and ises" in the warranty clause of the policy in construing the policy this is an important, means, and was intended to mean, the part if not a controlling, fact to be taken into of the building occupied and used by the consideration. It was with full knowledge plaintiff company as lessee, and not the entire of all the facts which clearly disclosed the building. The prohibition, it should be ob- intention of both parties to insure the properserved, is not against storing films in the ty on the first floor of the building let to the above-described building,” but in "the above- plaintiff that the policy was issued by the dedescribed premises." When the defendant fendant company and accepted by the plainissued the policy it knew that the plaintiff tiff company. This floor, and not the entire company occupied only the first floor of building, was manifestly "the above-described

premises” on which the plaintiff warranted | inflammable, for moving picture exhibitions, that no celluloid films should be kept, stored, and it kept both kinds of films in the part of or handled. The covenant was strictly ob- the building which it occupied. This was served by the plaintiff, and it is not pretended known to the defendant company as early that the plaintiff or any person under its as July 14, 1911, when a representative of the control stored the prohibited films in that owners of the building gave notice of the fact part of the building.

to the company. On at least two or three [3] We also agree with the learned trial subsequent occasions the insurance company judge that, if the warranty was broken by received a like notice that inflammable films the storage of celluloid films in other parts were stored in the building. It made no obof the building than that occupied by the jection and no demand for an increase of plaintiff, the defendant was estopped from as- premium commensurate to the risk; on the serting the breach in its defense to this suit. contrary, it gave consent to the owners who It is the settled law of this state that where had insurance on the whole building to store at the time of issuing an insurance policy such films in the building. After the inthe company knows, or ought to know, that surance company had received these notices one of the conditions is inconsistent with the and had given its consent to the owners to facts, and the insured has been guilty of no store combustible films in the building, it fraud, the company is estopped from setting received the premium due for the policy isup the breach of such condition.

sued to the plaintiff. With a knowledge of a [4] The principle is equally well settled breach of the warranty, the defendant comthat, if an insurance company accept unearn- pany could have canceled the policy and ed premiums or assessments with a knowl- could have refused to receive the payment of edge of facts avoiding the policy, it is estop- the premium. It did neither, but accepted ped to assert the avoidance after a loss has the premium and permitted the policy to conoccurred. The same doctrine prevails in tinue in force so far as the plaintiff knew. other jurisdictions. Whited v. Germania Fire Having received and retained the benefits Ins. Co., 76 N. Y. 415, 32 Am. Rep. 330; MC- of the contract, the insurer will not be perKinney v. German Mut. Fire Ins. Society, 89 mitted, after a loss has occurred, to declare a Wis. 653, 62 N. W. 413, 46 Am. St. Rep. 861; forfeiture of the policy and thereby deprive Pierce v. Nashua Fire Ins. Co., 50 N. H. 297, the insured of the protection for which it 9. Am. Rep. 235; Richards v. Louis Lipp paid and which the insurer led it to believe Co., 69 Ohio St. 359, 69 N. E. 616, 100 Am. it had. St. Rep. 679. In Rivara v. Queen's Insur The judgment is affirmed. ance Co., 62 Miss. 720, 729, the court says: "If the assured has been guilty of no fraud,

(245 Pa. 280) the insurer is estopped from setting up the breach of any condition of the policy, when it

WELLER V. DAVIS. knew at the time the policy. was issued that the

(Supreme Court of Pennsylvania. May 11, condition was inconsistent with the facts, or

1914.) the breach of any condition after the policy was issued, if it has induced the assured to believe 1. MINES AND MINERALS (8 125*)—SURFACE that such breach was waived and has thereby SUPPORT-ACTION FOR DAMAGES-EVIDENCE. misled him."

Where, in an action for damages to plainIn 3 Cooley on Insurance, 2683, the learned tiff's house and surface rights from removal of

underlying coal, plaintiff admitted that defendauthor, citing numerous decisions from many ant was entitled to mine the coal and made no jurisdictions in support of the text, says: claim for the value thereof, it was not error

"The acceptance by an insurance company, to exclude from evidence the lease for the coal. with knowledge of facts authorizing a forfeiture [Ed. Note. For other cases, see Mines and or avoidance of the policy, of premiums or as- Minerals, Cent. Dig. § 247; Dec. Dig. $ 125.*] sessments which were in no degree earned at the 2. APPEAL AND ERROR ($ 204*)-OBJECTION time of such forfeiture or avoidance constitutes BELOW-NECESSITY. a waiver thereof. This waiver is based on the

Refusal to strike out testimony cannot be estoppel of the company to declare void and of reviewed on appeal, where no objection was no effect insurance for which, with knowledge made to the testimony when it was offered; the of the facts, full compensation has been re- proper course for counsel to have pursued in ceived."

such case being to request the court to instruct Applying this doctrine to the facts of the that the jury disregard the testimony and to aspresent case, it is clear that if there was sign error to the refusal of such request.

[Ed. Note.

For other cases, see Appeal and a breach of the warranty that no inflammable Error, Dec. Dig. 8 204.*] films should be stored in any part of the 3. TRIAL ($ 234*)-INSTRUCTIONS–EVIDENCE building the defendant company is not in a AND MATTERS OF FACT. position to avail itself of the broken cove Where, in an action for damages to plainnant. The policy was issued on June 26, 1911. tiff's surface rights from the removal of underAt that time the basement and second story was not error to instruct that: “Your own ob

lying coal, the jury inspected the premises, it of the building were occupied by the General servation of what you saw is the best possible Film Company with a stock of moving pic- evidence. * * Sworn testimony as a rule ture films some of which at least were in cannot be relied upon thoroughly,


what you see, flammable. The business of that company cial capacity as jurymen, is the best possible

* especially in your offiwas to furnish films, inflammable and non-) evidence to guide you"--especially where the


*For other cases see same topic and section NUMI

CR in Dec. Dig. & Am. Dig. Key-No.

eries & Rep'r Indexes

amount of the verdict did not indicate that the coming to you especially in your official capacity jury ignored the testimony of the witnesses. as jurymen, is the best possible evidence to

[Ed. Note.--For other cases, see Trial, Cent. guide you gentlemen in getting at the truth." Dig. $8 534-538, 566; Dec. Dig. § 234.*]



Geo. M. Roads, of Pottsville, for appellant. In an action for damages to plaintiff's William Wilhelm, of Pottsville, for appellee. surface rights from the mining of coal, evidence that dynamite was used for blasting in defendant's mine and that this blasting disturbed POTTER, J. The plaintiff in this case is plaintiff's property, authorized submitting to the the owner of a lot of ground with a twojury plaintiff's claim for damages due to blasting by defendant.

story frame house erected thereon, situated [Ed. Note.-For other cases, see Mines and at New Castle, Schuylkill county. It appears Minerals, Cent. Dig. § 247; Dec. Dig. $ 125.*] from the record that the defendant operated 5. APPEAL AND ERROR ($ 1067*)–HARMLESS a coal mine, part of which was situated diERROR-REFUSAL OF INSTRUCTIONS.

rectly under plaintiff's land. Between the Where, in an action for damages to plain. years 1908 and 1911 plaintiff's ground cracktiff's surface rights from the mining of coal, ed and settled to such an extent that the plaintiff's claim for damages for coal taken was house was badly damaged. It was alleged, not supported by evidence, and his claim was limited to the depreciation in value of his land and testimony was offered on behalf of plainand buildings, refusal of the court to instruct tiff in the court below tending to show, that that plaintiff was not the owner of the coal the injury to the property resulted from the under his lot was harmless.

[Ed. Note.-For other cases, see Appeal and removal by defendant of coal, which was Error, Cent. Dig. § 4229; Dec. Dig. $ 1067.*] necessary to the support of the surface of the 6. TRIAL (8 251*)-INSTRUCTIONS-CONFORM

land, and that this caused the ground to ITY TO PLEADING AND PROOF.

sink and crack and resulted in the wreck of Where, in an action for damages to plain the house. Defendant, on the other hand, tiff's surface rights from the mining of coal, endeavored to show that the damage replaintiff's statement of claim alleged that defendant had removed the pillars forming the di- sulted from operations in an adjacent mine rect and lateral support of plaintiff's land, there for which he was not responsible. The trial by causing the damages complained of, and there resulted in a verdict for plaintiff. From the was evidence that defendant was negligent in judgment entered upon this verdict the dethe performance of the work, the court properly fendant has appealed. refused to charge that negligence was not al. fendant has appealed. leged or proven.

[1] The first assignment of error is to the [Ed. Note. For other cases, see Trial, Cent. action of the trial judge in sustaining an Dig. SS 587–595; Dec. Dig. § 251.*]

objection on behalf of plaintiff, to the ad7. TRIAL ($ 252*)-INSTRUCTIONS-CONFORM mission in evidence of the lease to defendITY TO EVIDENCE AND FACTS.

ant for the coal mine which underlaid plainWhere, in an action for damages to plain- tiff's ground. The lease was offered for the tiff's surface rights from the mining of coal, there was some evidence of negligence, the purpose of showing defendant's title to the court properly refused to instruct that the coal and his right to mine it, and also for the measure of damages for the removal of lateral purpose of contradicting plaintiff's claim support is the injury to the land in its natu- that he was the owner of the coal beneath ral condition and does not include buildings or other improvements.

the surface. It appears, however, that plain[Ed. Note. For other cases, see Trial, Cent. tiff admitted at the trial, and here admits, Dig. 88 505, 596-612; Dec. Dig. $ 252.*] that defendant was entitled to mine the coal,

and plaintiff made no claim at the trial for Appeal from Court of Common Pleas, the value of the coal. The exclusion of the Schuylkill County.

lease does not therefore appear to have reTrespass by Charles Weller against Ells- sulted in any harm to appellant. worth Colliery-John H. Davis-for inju

[2] The second assignment of error is to ries to the surface of land from coal mining the refusal of the court below to strike out operations. From a judgment for plaintiff, certain testimony of the witness Strauch Davis appeals. Affirmed.

given, while under cross-examination, in reErrors assigned were various rulings on ply to questions of the trial judge. No obevidence, instructions to the jury, and an-jection was made to the testimony at the swers to points referred to in the opinion of time when it was offered. The refusal to the Supreme Court, and the third assign- strike it out is therefore not the subject of ment, which was as follows:

review here. The proper course for counsel (3) The court erred in its charge to the jury, to have pursued was to have requested the as follows: * *

"To enable you to get at court to instruct the jury to disregard the the truth I have said this for the purpose of informing you of the fact that your own eyes and testimony. The refusal of such a request your own observation of what you saw is the might have been assigned as error, Mc-. best possible evidence that can guide you. Dyer v. East Penna. Rys. Co., 227 Pa. 641, 76 Sworn testimony as a rule cannot be relied upon Atl. 841. thoroughly, because there is always more or less contradiction-honest men differ—but what you

[3]. In the third assignment, it is alleged see, that is within your own personal knowledge, J that the trial court erred in charging the


*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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