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in pari delicto; there is no contribution be- , liability to persons injured through the nontween them.

observance of the same. Dutton v. Lansdowne, 198 Pa. 566, 53 L. Philadelphia & R. R. Co. v. Ervin, 89 Pa. R. A. 469, 82 Am. St. Rep. 814, 48 Atl. 494. 71, 33 Am. Rep. 726; Pennsylvania R. Co.

The city is not liable for a defect or nui V. Leuis, 79 Pa. 33; Philadelphia & R. R. sance not occasioned by its own act, unless Co. v. Boyer, 97 Pa. 91; Buente v. Pittsburg, it had actual or constructive notice of the A. & M. Traction Co. 2 Pa. Super. Ct. 185; nuisance; and it was just because of this Taylor y. Union Traction Co. 184 Pa. 465, notice that the city became liable to Dean. 47 L. R. A. 289, 40 Atl. 159; McNerney r.

Duncan v. Philadelphia, 173 Pa. 550, 51 Reading, 150 Pa. 611, 25 Atl. 57. Am. St. Rep. 780, 34 Atl. 235; Dean v. The owners being out of possession, the New Castle, 201 Pa. 51, 50 Atl. 310. premises being in the possession of their re

Messrs. S. W. Dana, D. B. Kurtz, spective tenants, and the landlords being unAaron L. Hazen, Oscar L. Jackson, and der no obligation by contract to keep the Richard F. Dana, for appellees:

sidewalk in repair, the owners would not be By ordinances for many years the city rec- liable to persons who might be injured by ognized these conductors by providing that defects arising in the sidewalk for want of there should be gutters across the sidewalk repairs while so in possession of the tenants. sulficient to carry the water coming from Bears v. Ambler, 9 Pa. 193; Early v. Ashthem. Such conductors were a usual and worth, 15 W. N. C. 142; Tout v. Philadelcommon means of bringing water from roofs, phia, 173 Pa. 314, 33 Atl. 1034; Grier v. and were reasonably necessary.

Sampson, 27 Pa. 183. Even though Dean might have recovereil Abutting owners are not liable to passenagainst the owners, the city, under the pe- gers for personal injuries, caused by defects culiar circumstances of the case, should not in, or want of repairs of, a sidewalk, arisbe subrogated to Dean's action against them, ing while the owners are not in possession, and is without remedy.

but the premises are in possession of their Dill. Mun. Corp. § 795.

tenants, and the owners are under no conWhen a charter imposes upon lot owners tract to repair. The liability is by virtue the duty of keeping the sidewalk in repair, of city ordinances; and, if there was no liaand free from snow or ice or other ob- bility by the common law, none would restructions; and also provides that the super- sult from the ordinances. intendent of streets shall repair any side Lowell v. Boston & L. R. Corp. 23 Pick. walk where the owner of the property neg. 24, 34 Am. Dec. 33; Rochester v. Campbell, lects to repair the same for a fixed number 123 N. Y. 405, 10 L. R. A. 393, 20 Am. St. of days after the service upon him of a Rep. 760, 25 N. E. 937; Wilhelm v. Defiance, written notice so to do, and that the super- 58 Ohio St. 56, 40 L. R. A. 294, 65 Am. St. intendent shall collect the expense of such Rep. 745, 50 N. E. 18. repair from the owner of the property,-it The right of the city to recover at all is only imposes upon the owner a statutory one existing in pure equity. In order to liability for the expense of such repairs. have any right in equity to be subrogated It does not directly and specifically make to the right of Dean against the owners, him liable for any damages in case of per- the city must itself have done equity. sonal injury to persons from a failure to The street commissioner had express nokeep such sidewalks in repair; and the tice of the ice ridge and its very dangerous municipality, though it may in an action be character, and also was personally present held liable to the person injured, and pay and viewed it, and could easily have rethe same, cannot maintain the action against moved it, or notified the tenants, while the the lot owner for indemnity.

were not in possession, and could 2 Smith, Mun. Corp. § 1305; Port Jervis and did know nothing of it. It was his v. First Nat. Bank, 96 N. Y. 550; Chicago duty, as between the city and the owners, v. Robbins, 2 Black, 418, 17 L. ed. 298: to have done one or the other; and still he Brooklyn v. Brooklyn City R. Co. 47 N. Y. did nothing. 475, 7 Am. Rep. 469; Louell v. Boston & L. Such neglect would be criminal. Both ofR. Corp. 23 Pick. 24, 34 Am. Dec. 33; Roches- ficer and the city would be indictable for ter v. Campbell, 123 N. Y. 405, 10 L. R. A. it. 393, 20 Am. St. Rep. 760, 25 X. E. 937; 2 Dill. Mun. Corp. $$ 745-747 ; 1 Dill. A1 oore v. Gadsden, 93 N. Y. 12.

Mun. Corp. § 1761, note; Wharton, Crimes, Dean could not have recovered against 88 1584a, 1591-1593. the owners if he had sued them instead of

Against such criminal neglect the city can the city. They are liable, under the ordi- get no indemnity. nance, to the penalty, and to reimburse the Weckerly v. German Lutheran nongregaexpense of clearing, but are under no new tion, 3 Rawle, 172.

Owners

Certainly what the city cannot get in law, | for its removal. Thus its negligence arose equity will not decree.

directly from its failure to perform it. It Further, the persons against whom the in- now practically seeks to have a right of subdemnity is claimed are entirely ignorant of rogation for the repayment of the damages wrong, and, if negligent at all, are so mere- which were the direct consequence of its ly by intendment of law.

own negligence. It is an attempt, thereWeckerly v. German Lutheran Congrega- fore, to make a wrong, and not a right, the tion, 3 Rawle, 172; Coventry v. Barton, 17 basis of such subrogation. In 2 Smith's Johns. 144, 7 Am. Dec. 376; Doe ex dem. Municipal Corporations, § 1305, it is said: Cheny v. Batten, 1 Cowp. 243.

“But where a charter imposes upon lot ownIf the city, knowing of the ridge of ice, ers the duty of keeping the sidewalk . and knowing, also, the necessary want of in repair, and free from snow or ice or other knowledge on part of the owners, had done obstruction, and also provides that the suits duty, there could have been no accident. perintendent of streets should repair any It is therefore in the same situation as a sidewalk when the owner of the property plaintiff seeking to recover when his own neglected to repair the same for a fixed neglect contributed to the injury.

number of days after the service upon him Armstrong County v. Clarion County, 66 of a written notice to do so, and that the Pa. 218, 5 Am. Rep. 368; Horbach v. Elder, superintendent should collect the expense of 18 Pa. 33.

such repair from the owner of the property,

it only imposes upon the lot owner a statuThompson, J., delivered the opinion of tory liability for the expense of such rethe court:

pairs. It does not directly and specifically This was an action by the appellant to re- make him liable for any damages in case of cover from the appellees the amount of a personal injury to persons from a failure verdict that it was by suit compelled to to keep such sidewalks in repair, and the pay to a person who had been injured by a municipality, though it may in an action be fall caused by a ridge of ice formed in held liable to the person injured, and pay front of, and upon the pavement of, the the same, cannot maintain the action properties owned by the appellees, and oc- against the lot owner for indemnity." He cupied by tenants. The liability of the ap- there cites numerous authorities to sustain pellant in that action sprang from the ac- the above. tual notice to it of the dangerous condition The failure of the appellant to remove of the ice upon the pavement, and, after the ice ridge in question, with notice of its such notice, its neglect to remove it. The dangerous condition, or to give notice to proof there was that its street commissioner the tenants to remove it promptly, or, in had express notice of the ridge of ice that case of their failure, to do so at their excaused the accident, and its dangerous char- pense, negatives an equal liability basis upacter. Having such notice, and having on which to build a right in equity for subfailed to perform its duty, and having been rogation against the appellees, the owners of mulcted in damages for such failure of duty, the property, not in occupancy, and withappellant now seeks to recover the amount out the slightest knowledge or information of such damages from appellees, who had in regard to the condition of the pavement; no notice or knowledge of the condition of but, in any contingency, the right to reimthe ice on the pavement, and whose proper- bursement by appellant could only spring ties were in the occupancy of tenants.

from a liability of the appellees, which The principle underlying the right to be Dean, who recovered a verdict against the reimbursed for damages paid by a munici

appellant, might have enforced against pality in cases of accident is that the owner

them. They were the owners of the propor occupier of the property, as the case may erties, and their tenants were, and had been be, is primarily liable to the person injured. for many years, the actual occupiers of The right of subrogation springs from that them. The accident was not caused by the liability. The primary liability in that case was upon the appellant. It assumed the du- bad condition of the pavement or its want ty of removing the ice. By its ordinance

of repair, but by a sudden accumulation of it required owners, tenants, or occupiers of ice, to which water from the buildings may properties to remove the ice in front of the have contributed. It was an unusual consame before 10 o'clock of the next day after dition produced by the elements, and seemed its accumulation, and, failing to do so, to be to have had no similar recurrence in a liable to a fine; and, in case the owner or period of many years. Whatever the duties occupier did not remove when so required, of the tenants to keep the pavements free it undertook to do so. The appellant, hav- and clear of ice may have been, the appeling undertaken that duty, had express notice lees, out of possession, with the pavement of the condition of the ice and the necessity in proper repair, and the properties prop

erly constructed and also in proper repair, ent from the fact that there was no proper were not bound to keep watch and guard storm gutter in the street to carry off water, over the pavement to prevent the form- and especially so in the case of appellees' ation of ridges of ice upon it; and, if so, pavement, as a telegraph pole over a foot they cannot be held liable for an injury con- in diameter had been erected, under the disequent upon a sudden accumulation of ice rection of appellant's engineer, directly opthere. In Lohr v. Philipsburg, 156 Pa. 246, posite the waterspout from appellees' prop27 Atl. 133, Mr. Justice Mitchell said: erty, which precluded the construction of a “In the recent case of Burns v. Bradford, small gutter. It is, however, manifest that, 137 Pa. 361, 11 L. R. A. 726, 20 Atl. 997, if even a small gutter had been constructed our Brother McCollum said: 'A munici. | across the pavement, under the stress of pal corporation is not an insurer against the intense weather which caused the ridge all defects in its highways, but it is answer of ice upon the pavement it would not have able for negligence in the performance successfully operated to preven“ such accuof its duties in the construction and mulation. It follows, then, that, unless care of them. For a defect arising in there was such a failure of duty on the part them without its fault or neglect, it of the appellees in the construction of a wais not liable, unless it has express notice, ter pipe as resulted in a nuisance per se, conor the defect be so notorious as to be tinuing as such no liability on their part evident to all passers.'” It was accord-could arise. The conductor or waterspout ingly held in that case that, although “it was constructed at the time of the erection is a fact well known to the inhabitants of of these houses, some twenty years previous, all our municipalities that sidewalks are was such as was in common use, was proper liable in the winter to be thrown out of and necessary to remove water from the roof level by the action of the frost,” yet the of the houses, and was so recognized. As plaintiff, who was injured-very much in its construction was proper, and as it was the same manner as the present plaintiff used for a necessary purpose, and as it wawas—by the stringers of a plank walk be. not out of repair, it was not a nu ing raised higher on one side than the other, se, and the fact that a severe storm at some could not recover without proof that the de remote period of time might possibly cause fect was observable by all passers. So here an unusual flow of water would not necesthe proper instruction to the jury should be sarily make it so. There is no evidence that that the borough was bound to keep a rea any such flow ever previously made any missonable supervision over the condition of its chief. Such being the case, there was no sidewalks, but it wils not liable for negli- such failure of duty on the part of appellees gence unless it had actual notice or knowl. as to be the foundation of any liability. edge of the defect complained of, or it was The case of Brown v. White, 202 Pa. 297, so plain to observation and had existed so 58 L. R. A. 321, 51 Atl. 962, was a case in lony a time that officers exercising a reason which the construction was a nuisance per able supervision ought to have observed it. se, and the owner's liability was placed dis

The primary liability on the part of the tinctly upon that ground; and Mr. Justice owner out of occupancy may arise where Mestrezat, quoting from the case of Knauss the injury is the result of negligence spring. v. Brua, 107 Pa. 85, says: “But the converse ing from a failure to repair a pavement, but of this proposition is also true: If the where no such condition exists, and there is premises are so constructed, or in such a no failure of duty in regard to any repairs, condition, that the continuance of their use no negligence can be said to be attributed to by the tenant must result in a nuisance to him. There was no evidence in this case a third person, and a nuisance does so result, that the pavement was in a bad condition the landlord is liable.” or out of repair, and none that there was The learned trial judge was not guilty of danger by reason of the failure to construct error in giving binding instructions for the across it a gutter to the street. No such appellees, and this judgment is affirmed. gutters were laid across pavements in the locality, and none required. This is appar Mestrezat and Potter, JJ., dissent. 69 L. R. A.

nce per

RHODE ISLAND SUPREME COURT.

2. The

of

valid

lease.

Ex parte Elizabeth E. CHACE. under Pub. Laws 1898, 1899, chap. 549, §

11, p. 49. Soon after the marriage, Mr. and (..... R. I.........)

Mrs. Chace returned to this state, and lived The marringe of a ward, solemnized together as husband and wife for some in a sister state where it is valid, is not months, until some time last August, when void because no license was procured with

the guardian aforesaid removed Mr. Chace the consent of the guardian, as required by from his home, against his protest and that the laws of his domicil, nor because such of the petitioner. The petitioner avers that laws render void all his contracts.

the respondent guardian thereupon immarriage

ward,

prisoned Mr. Chace, and is now unlawfully where made in a sister state, must be regarded as valid at liis domicil, although it restraining him of his liberty at No. 9 would not have been so bad it been solem Lemon street, Providence; that he is denized there because of statutory limitation prived of the companionship, assistance, of his right to contract.

and care of his wife, which he desires; that The wife of one illegally restrained he is not permitted to have social interof his liberty may maintain a petition for

course with her, save in the presence of his it writ of habeas corpus to obtain his re.

guardian; and that he is being treated in One appointed guardian of another

a manner inconsistent with the relation of because of his lack of discretion to guardian and ward. inanage his estate has no authority over the In determining whether the petitioner is person of his ward, which will entitle him entitled to the relief she prays for, the first to separate him from his wife.

question calling for decision is whether she

was lawfully married to Mr. Chace, for, if (July 23, 1904.)

not, she shows no standing to petition in

his behalf as his wife. It is argued by the obtain the release of Henry C. Chace is invalid, and that the petitioner never befrom the custody of Andrew D. Wilson, who

came the wife of Mr. Chace. The reasons was attempting to exercise control over him advanced are (1) that by our statute, cited as his guardian. Granted.

above, a ward is rendered unable to obtain The facts are stated in the opinion.

a marriage license without the consent of Messrs. George S. Engle, F. P. Owen, his guardian, and that no such consent was and Willis B. Richardson for petitioner. given by the respondent; (2) that by the

Mr. Clarence A. Aldrich for respond- provisions of Gen. Laws 1896, chap. 196, § ent.

16, “all contracts, bargains, and convey

ances made by any person under guardianTillinghast, J., delivered the opinion of ship shall be utterly void;" (3) that these the court: This is a petition for a writ of habeas law to deny any validity to any kind of a

provisions show that it is the policy of our corpus brought by Elizabeth E. Chace in be contract which a ward attempts to make, half of her husband, Henry C. Chace. The and that therefore, although the marriage material facts in the case are these: On took place in Massachusetts, and may have the 23d day of May, 1899, Andrew D. Wil fulfilled the requirements of Massachusetts son was appointed guardian of the person law, it will not be recognized in this state. and estate of said Henry C. Chace, a person We do not think that any of these arguof full age, under the provisions of Gen. ments are sound. As to the first two, we Laws 1896, chap. 196, § 7, on the ground think it is clear that the statutes relied that, from want of discretion in managing upon can have no direct application to this his estate, he was likely to bring himself marriage, for it was celebrated in another to want. Subsequently, on the 20th of No state, and under the provisions of other vember 1902, Mr. Chace married his present laws. wife. The marriage was solemnized in

The third argument, however, requires Massachusetts, although both of the parties

more consideration. It is said by counsel were domiciled in Rhode Island, and it was

for the guardian that “marriage, in evasion ntered into by Mr. Chace without obtain of the laws of the domicil, and contrary to ing the written consent of his guardian. the public policy or laws of the domicil will which is made one of the requisites for ob- not be recognized as valid.” But it must taining a marriage license in this state, be noticed, in the first place, that it noNOTE.--For conflict of laws as to validity

where appears, either in the pleadings or of marriuge, see also, in this series, Wills v. proof, that the marriage involved here was State, 57 L. R. A. 155, and note.

entered into in evasion of the laws of the

were

domicil, and contrary to the public policy | L. Sth ed. § 89. See Id. $$ 113, 121, 123a, thereof. For aught that appears, the 123b; Bishop, Marr. Div. & Sep. § 843, and parties may have entered into this contract cases cited; Putnam v. Putnam, 8 Pick. of marriage in the most perfect good faith, 433; West Cambridge v. Lexington, 1 Pick. and without any intention of evading the 506, 11 Am. Dec. 231; Van Voorhis v. Brintlaws of Rhode Island, And, as is said by nall, 86 N. Y. 18, 40 Am. Rep. 505. In MedMr. Bishop in the first volume of his work way v. Needham, 16 Mass. 157, 8 Am. Dec. on Marriage, Divorce, & Separation, $$ 77, 131, a statute made a marriage between a 836: “Each particular instance of what is negro or mulatto and a white person void. meant for marriage has the aid of all the A couple, one of whom was a mulatto and presumptions, both of law and fact, and the other white, in order to evade the equally whether the marriage was domestic statute, came into Rhode Island, where such or foreign.” Furthermore, it is not clear connections were allowed, were there marthat, even if the marriage had been solem- ried, and immediately returned. And the nized in this state, it would have been void. marriage, being good in Rhode Island, was Pub. Laws 1898, 1899, p. 49, chap. 549, § 11, held to be good in Massachusetts. The merely provides that no marriage license reasoning upon which these cases proceed shall issue to a person under guardianship is well stated by Sir Edward Simpson in without the written consent of the guardi Scrimshire, v. Scrimshire, 2 Hagg. Consist. an; but it by no means necessarily follows Rep. 395. He says on page 417: “All that a marriage procured without first ob- nations allow marriage contracts. They taining such license would be void, although are juris gentium, and the subjects of all the official or other person who performed nations are equally concerned in them; and the ceremony might be liable to punishment from the infinite mischief and confusion under § 19 of the same chapter. See Parton that must necessarily arise to the subjects v. Herrey, 1 Gray, 119, 121. For, while our of all nations with respect to legitimacy, statutes prescribe certain formalities and successions, and other rights, if the rerequirements in connection with the enter- spective laws of different countries ing into the marriage relation, it is to be only to be observed as to marriages concarefully borne in mind that they nowhere tracted by the subjects of those countries declare that the failure to observe any or abroad, all nations have consented, or must all of said formalities or requirements shall be presumed to consent, for the common have the effect to render a marriage void. benefit and advantage, that such marriages

Again, although Gen. Laws 1896, chap. should be good, or not according to the laws 196, § 16, provides that all contracts made of the country where they are made. by a ward shall be void, it is at least very By observing this law no inconvenience can questionable whether the legislature intend- arise, but infinite mischief will ensue if it ed that section to refer to the contract of is not.” marriage. Indeed, the words of the section

The counsel for the guardian, however, referring to bargains and conveyances cites several cases which at first sight seem would clearly seem to show that it was only to support the position that marriage in intended to affect contracts relating to evasion of the laws of the domicil is invalid. property. Certainly the provision is not of Thus in Stull's Estate, 183 Pa. 625, 39 L. universal application for, under Pub. Laws R. A. 539, 39 Atl. 16, and Pennegar v. State. 1898, 1899, chap. 549, § 11, p. 49, there 87 Tenn. 244, 2 L. R. A. 703, 10 Am. St. must be an implied exception in the case of Rep. 648, 10 S. W. 305, a statute forbade a marriage contract to which the guardian any person from whom a divorce was obconsents in writing. Upon the questions of tained on the ground of adultery to reinterpretation thus raised, however, we remarry. In both cases a party forbidden to frain from expressing any opinion, as we marry went into another state and rethink that, even assuming that the mar- married. The second marriage in both riage would have been void in this state, cases was held invalid in the state where the yet, as, so far as appears, it was lawfully party was domiciled. In Dupre v. Boulard. celebrated in Massachusetts, it must be con- 10 La. Ann. 411, a statute forbade the intersidered valid here. We are aware that the marriage of blacks and whites, and it was authorities are not entirely uniform upon held that any such marriage, although valid this point, now for the first time presented where performed, would not be recognized in Rhode Island; but the general principle, in Louisiana. To the same effect are State as we gather it from text writers and de. v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683, cisions, both English and American, is that and Kinney v. Com. 30 Gratt. 858, 32 Am. the capacity or incapacity to marry de Rep. 690. And in Brook v. Brook, 9 H. L. pends on the law of the place where the Cas. 193, where a statute declared that a marriage is celebrated, and not on that of marriage with a deceased wife's sister the domicil of the parties. Story, Confl, should be invalid, it was held that such a

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