Imagens das páginas

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. R. A. 469, 82 Am. St. Rep. 814, 48 Atl. 494. The city is not liable for a defect or nuisance not occasioned by its own act, unless it had actual or constructive notice of the nuisance; and it was just because of this notice that the city became liable to Dean. Duncan v. Philadelphia, 173 Pa. 550, 51 Am. St. Rep. 780, 34 Atl. 235; Dean v. New Castle, 201 Pa. 51, 50 Atl. 310.

Messrs. S. W. Dana, D. B. Kurtz, Aaron L. Hazen, Oscar L. Jackson, and Richard F. Dana, for appellees:

By ordinances for many years the city recognized these conductors by providing that there should be gutters across the sidewalk sufficient to carry the water coming from them. Such conductors were a usual and common means of bringing water from roofs, and were reasonably necessary.

Even though Dean might have recovered against the owners, the city, under the peculiar circumstances of the case, should not be subrogated to Dean's action against them, and is without remedy.

Dill. Mun. Corp. § 795.

Philadelphia & R. R. Co. v. Ervin, 89 Pa. 71, 33 Am. Rep. 726; Pennsylvania R. Co. v. Lewis, 79 Pa. 33; Philadelphia & R. R. Co. v. Boyer, 97 Pa. 91; Buente v. Pittsburg, A. & M. Traction Co. 2 Pa. Super. Ct. 185; Taylor v. Union Traction Co. 184 Pa. 465, 47 L. R. A. 289, 40 Atl. 159; McNerney v. Reading, 150 Pa. 611, 25 Atl. 57.

The owners being out of possession, the premises being in the possession of their respective tenants, and the landlords being under no obligation by contract to keep the sidewalk in repair, the owners would not be liable to persons who might be injured by defects arising in the sidewalk for want of repairs while so in possession of the tenants.

Bears v. Ambler, 9 Pa. 193; Early v. Ashworth, 15 W. N. C. 142; Tout v. Philadelphia, 173 Pa. 314, 33 Atl. 1034; Grier v. Sampson, 27 Pa. 183.

Abutting owners are not liable to passengers for personal injuries, caused by defects in, or want of repairs of, a sidewalk, arising while the owners are not in possession, but the premises are in possession of their tenants, and the owners are under no contract to repair. The liability is by virtue of city ordinances; and, if there was no liability by the common law, none would re

24, 34 Am. Dec. 33; Rochester v. Campbell, 123 N. Y. 405, 10 L. R. A. 393, 20 Am. St. Rep. 760, 25 N. E. 937; Wilhelm v. Defiance, 58 Ohio St. 56, 40 L. R. A. 294, 65 Am. St. Rep. 745, 50 N. E. 18.

When a charter imposes upon lot owners the duty of keeping the sidewalk in repair, and free from snow or ice or other obstructions; 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 neglects to repair the same for a fixed number of days after the service upon him of a written notice so to do, and that the superintendent shall collect the expense of such repair from the owner of the property,-it only imposes upon the owner a statutory liability for the expense of such repairs. It does not directly and specifically make him liable for any damages in case of personal injury to persons from a failure to keep such sidewalks in repair; and the municipality, though it may in an action be held liable to the person injured, and pay the same, cannot maintain the action against the lot owner for indemnity.

2 Smith, Mun. Corp. § 1305; Port Jervis v. First Nat. Bank, 96 N. Y. 550; Chicago v. Robbins, 2 Black, 418, 17 L. ed. 298: Brooklyn v. Brooklyn City R. Co. 47 N. Y. 475, 7 Am. Rep. 469; Lowell v. Boston & L. R. Corp. 23 Pick. 24, 34 Am. Dec. 33; Rochester v. Campbell, 123 N. Y. 405, 10 L. R. A. 393, 20 Am. St. Rep. 760, 25 N. E. 937; Moore v. Gadsden, 93 N. Y. 12.

Dean could not have recovered against the owners if he had sued them instead of the city. They are liable, under the ordinance, to the penalty, and to reimburse the expense of clearing, but are under no new

The right of the city to recover at all is one existing in pure equity. In order to have any right in equity to be subrogated to the right of Dean against the owners, the city must itself have done equity.

The street commissioner had express notice of the ice ridge and its very dangerous character, and also was personally present and viewed it, and could easily have removed it, or notified the tenants, while the owners were not in possession, and could and did know nothing of it. It was his duty, as between the city and the owners, to have done one or the other; and still he did nothing.

Such neglect would be criminal. Both officer and the city would be indictable for it.

2 Dill. Mun. Corp. §§ 745-747; 1 Dill. Mun. Corp. § 1761, note; Wharton, Crimes, §§ 1584a, 1591-1593.

Against such criminal neglect the city can get no indemnity.

Weckerly v. German Lutheran "gregation, 3 Rawle, 172.

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 now practically seeks to have a right of subrogation for the repayment of the damages which were the direct consequence of its own negligence. It is an attempt, therefore, to make a wrong, and not a right, the basis of such subrogation. In 2 Smith's Municipal Corporations, § 1305, it is said: "But where a charter imposes upon lot owners the duty of keeping the sidewalk. . in repair, and free from snow or ice or other obstruction, and also provides that the superintendent of streets should repair any sidewalk when the owner of the property neglected to repair the same for a fixed number of days after the service upon him of a written notice to do so, and that the superintendent should collect the expense of 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 re

Further, the persons against whom the indemnity is claimed are entirely ignorant of wrong, and, if negligent at all, are so merely by intendment of law.

Weckerly v. German Lutheran Congregation, 3 Rawle, 172; Coventry v. Barton, 17 Johns. 144, 7 Am. Dec. 376; Doe ex dem. Cheny v. Batten, 1 Cowp. 243.

If the city, knowing of the ridge of ice, and knowing, also, the necessary want of knowledge on part of the owners, had done its duty, there could have been no accident. It is therefore in the same situation as a plaintiff seeking to recover when his own neglect contributed to the injury.

Armstrong County v. Clarion County, 66 Pa. 218, 5 Am. Rep. 368; Horbach v. Elder, 18 Pa. 33.

the court:

This was an action by the appellant to recover from the appellees the amount of a verdict that it was by suit compelled to pay to a person who had been injured by a fall caused by a ridge of ice formed in front of, and upon the pavement of, the properties owned by the appellees, and occupied by tenants. The liability of the appellant in that action sprang from the actual notice to it of the dangerous condition of the ice upon the pavement, and, after such notice, its neglect to remove it. The proof there was that its street commissioner had express notice of the ridge of ice that caused the accident, and its dangerous character. Having such notice, and having failed to perform its duty, and having been mulcted in damages for such failure of duty, appellant now seeks to recover the amount of such damages from appellees, who had no notice or knowledge of the condition of the ice on the pavement, and whose properties were in the occupancy of tenants.

The principle underlying the right to be reimbursed for damages paid by a municipality in cases of accident is that the owner or occupier of the property, as the case may be, is primarily liable to the person injured. The right of subrogation springs from that liability. The primary liability in that case was upon the appellant. It assumed the duty of removing the ice. By its ordinance it required owners, tenants, or occupiers of properties to remove the ice in front of the same before 10 o'clock of the next day after its accumulation, and, failing to do so, to be liable to a fine; and, in case the owner or occupier did not remove when so required, it undertook to do so. The appellant, having undertaken that duty, had express notice of the condition of the ice and the necessity

pairs. It does not directly and specifically make him liable for any damages in case of personal injury to persons from a failure to keep such sidewalks in repair, and the municipality, though it may in an action be held liable to the person injured, and pay the same, cannot maintain the action against the lot owner for indemnity." He there cites numerous authorities to sustain

the above.

The failure of the appellant to remove the ice ridge in question, with notice of its dangerous condition, or to give notice to the tenants to remove it promptly, or, in case of their failure, to do so at their expense, negatives an equal liability basis upon which to build a right in equity for subrogation against the appellees, the owners of the property, not in occupancy, and without the slightest knowledge or information in regard to the condition of the pavement; but, in any contingency, the right to reimbursement by appellant could only spring from a liability of the appellees, which Dean, who recovered a verdict against the appellant, might have enforced against them. They were the owners of the properties, and their tenants were, and had been for many years, the actual occupiers of them. The accident was not caused by the bad condition of the pavement or its want of repair, but by a sudden accumulation of ice, to which water from the buildings may have contributed. It was an unusual condition produced by the elements, and seemed to have had no similar recurrence in a period of many years. Whatever the duties of the tenants to keep the pavements free and clear of ice may have been, the appellees, out of possession, with the pavement in proper repair, and the properties prop

erly constructed and also in proper repair, were not bound to keep watch and guard over the pavement to prevent the formation of ridges of ice upon it; and, if so, they cannot be held liable for an injury consequent upon a sudden accumulation of ice there. In Lohr v. Philipsburg, 156 Pa. 246, 27 Atl. 133, Mr. Justice Mitchell said: "In the recent case of Burns v. Bradford, 137 Pa. 361, 11 L. R. A. 726, 20 Atl. 997, our Brother McCollum said: 'A municipal corporation is not an insurer against all defects in its highways, but it is answerable for negligence in the performance of its duties in the construction and care of them. For a defect arising in them without its fault or neglect, it is not liable, unless it has express notice, or the defect be so notorious as to be evident to all passers.'" It was accordingly held in that case that, although "it is a fact well known to the inhabitants of all our municipalities that sidewalks are liable in the winter to be thrown out of level by the action of the frost," yet the plaintiff, who was injured-very much in the same manner as the present plaintiff was-by the stringers of a plank walk being raised higher on one side than the other, could not recover without proof that the defect was observable by all passers. So here the proper instruction to the jury should be that the borough was bound to keep a reasonable supervision over the condition of its sidewalks, but it was not liable for negligence unless it had actual notice or knowl edge of the defect complained of, or it was so plain to observation and had existed sc long a time that officers exercising a reasonable supervision ought to have observed it. The primary liability on the part of the owner out of occupancy may arise where the injury is the result of negligence springing from a failure to repair a pavement, but where no such condition exists, and there is no failure of duty in regard to any repairs, no negligence can be said to be attributed to him. There was no evidence in this case that the pavement was in a bad condition or out of repair, and none that there was danger by reason of the failure to construct across it a gutter to the street. No such gutters were laid across pavements in the locality, and none required. This is appar 69 L. R. A.

ent from the fact that there was no proper storm gutter in the street to carry off water, and especially so in the case of appellees' pavement, as a telegraph pole over a foot in diameter had been erected, under the direction of appellant's engineer, directly opposite the waterspout from appellees' property, which precluded the construction of a small gutter. It is, however, manifest that, if even a small gutter had been constructed across the pavement, under the stress of the intense weather which caused the ridge of ice upon the pavement it would not have successfully operated to prevent such accumulation. It follows, then, that, unless there was such a failure of dury on the part of the appellees in the construction of a water pipe as resulted in a nuisance per se, continuing as such no liability on their part could arise. The conductor or waterspout was constructed at the time of the erection of these houses, some twenty years previous, was such as was in common use, was proper and necessary to remove water from the roof of the houses, and was so recognized. As its construction was proper, and as it was used for a necessary purpose, and as it was not out of repair, it was not a nuisance per se, and the fact that a severe storm at some remote period of time might possibly cause an unusual flow of water would not necessarily make it so. There is no evidence that any such flow ever previously made any mischief. Such being the case, there was no such failure of duty on the part of appellees as to be the foundation of any liability. The case of Brown v. White, 202 Pa. 297, 58 L. R. A. 321, 51 Atl. 962, was a case in which the construction was a nuisance per se, and the owner's liability was placed distinctly upon that ground; and Mr. Justice Mestrezat, quoting from the case of Knauss v. Brua, 107 Pa. 85, says: "But the converse of this proposition is also true: If the premises are so constructed, or in such a condition, that the continuance of their use by the tenant must result in a nuisance to a third person, and a nuisance does so result, the landlord is liable."

The learned trial judge was not guilty of error in giving binding instructions for the appellees, and this judgment is affirmed.

Mestrezat and Potter, JJ., dissent.



Ex parte Elizabeth E. CHACE.

(........R. I....... .)

The marriage of a ward, solemnized

in a sister state where it is valid, is not void because no license was procured with the consent of the guardian, as required by the laws of his domicil, nor because such laws render void all his contracts. 2. The

marriage of a ward, valid where made in a sister state, must be re

garded as valid at his domicil, although it would not have been so had it been solemnized there because of statutory limitation of his right to contract.

3. The wife of one illegally restrained of his liberty may maintain a petition for a writ of habeas corpus to obtain his release.

4. One appointed guardian of another because of his lack of discretion to manage his estate has no authority over the person of his ward, which will entitle him to separate him from his wife.

(July 23, 1904.)

PETITION for a writ of habeas corpus to

obtain the release of Henry C. Chace from the custody of Andrew D. Wilson, who was attempting to exercise control over him as his guardian. Granted.

The facts are stated in the opinion.
Messrs. George S. Engle, F. P. Owen,
and Willis B. Richardson for petitioner.
Mr. Clarence A. Aldrich for respond


Tillinghast, J., delivered the opinion of

the court:


This is a petition for a writ of habeas corpus brought by Elizabeth E. Chace in behalf of her husband, Henry C. Chace. The material facts in the case are these: the 23d day of May, 1899, Andrew D. Wilson was appointed guardian of the person and estate of said Henry C. Chace, a person of full age, under the provisions of Gen. Laws 1896, chap. 196, § 7, on the ground that, from want of discretion in managing his estate, he was likely to bring himself to want. Subsequently, on the 20th of November 1902, Mr. Chace married his present wife. The marriage was solemnized in Massachusetts, although both of the parties were domiciled in Rhode Island, and it was entered into by Mr. Chace without obtain ing the written consent of his guardian, which is made one of the requisites for obtaining a marriage license in this state,

NOTE. For conflict of laws as to validity of marriage, see also, in this series, Hills v. State, 57 L. R. A. 155, and note.

under Pub. Laws 1898, 1899, chap. 549, § 11, p. 49. Soon after the marriage, Mr. and Mrs. Chace returned to this state, and lived together as husband and wife for some months, until some time last August, when the guardian aforesaid removed Mr. Chace from his home, against his protest and that of the petitioner. The petitioner avers that the respondent guardian thereupon imprisoned Mr. Chace, and is now unlawfully restraining him of his liberty at No. 9 Lemon street,. Providence; that he is deprived of the companionship, assistance, and care of his wife, which he desires; that he is not permitted to have social intercourse with her, save in the presence of his guardian; and that he is being treated in a manner inconsistent with the relation of guardian and ward.

In determining whether the petitioner is entitled to the relief she prays for, the first question calling for decision is whether she was lawfully married to Mr. Chace, for, if not, she shows no standing to petition in his behalf as his wife. It is argued by the

counsel for the guardian that the marriage

is invalid, and that the petitioner never became the wife of Mr. Chace. The reasons

advanced are (1) that by our statute, cited above, a ward is rendered unable to obtain a marriage license without the consent of his guardian, and that no such consent was given by the respondent; (2) that by the provisions of Gen. Laws 1896, chap. 196, § 16, "all contracts, bargains, and conveyances made by any person under guardianship shall be utterly void;" (3) that these provisions show that it is the policy of our law to deny any validity to any kind of a contract which a ward attempts to make, and that therefore, although the marriage took place in Massachusetts, and may have fulfilled the requirements of Massachusetts law, it will not be recognized in this state.

We do not think that any of these arguments are sound. As to the first two, we think it is clear that the statutes relied upon can have no direct application to this marriage, for it was celebrated in another state, and under the provisions of other laws.

The third argument, however, requires more consideration. It is said by counsel for the guardian that "marriage, in evasion of the laws of the domicil, and contrary to the public policy or laws of the domicil will not be recognized as valid." But it must be noticed, in the first place, that it nowhere appears, either in the pleadings or proof, that the marriage involved here was entered into in evasion of the laws of the

cases cited; Putnam v. Putnam, 8 Pick. 433; West Cambridge v. Lexington, 1 Pick. 506, 11 Am. Dec. 231; Van Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep. 505. In Medway v. Needham, 16 Mass. 157, 8 Am. Dec. 131, a statute made a marriage between a negro or mulatto and a white person void. A couple, one of whom was a mulatto and the other white, in order to evade the statute, came into Rhode Island, where such connections were allowed, were there mar

marriage, being good in Rhode Island, was
held to be good in Massachusetts. The
reasoning upon which these cases proceed
is well stated by Sir Edward Simpson in
Scrimshire, v. Scrimshire, 2 Hagg. Consist.
Rep. 395. He says on page 417: "All
nations allow marriage contracts. They
are juris gentium, and the subjects of all
nations are equally concerned in them; and
from the infinite mischief and confusion
that must necessarily arise to the subjects
of all nations with respect to legitimacy,
successions, and other rights, if the re-
spective laws of different countries
only to be observed as to marriages con-
tracted by the subjects of those countries
abroad, all nations have consented, or must
be presumed to consent, for the common
benefit and advantage, that such marriages
should be good, or not according to the laws
of the country where they are made.
By observing this law no inconvenience can
arise, but infinite mischief will ensue if it
is not."


domicil, and contrary to the public policy | L. 8th 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 of marriage in the most perfect good faith, and without any intention of evading the laws of Rhode Island. And, as is said by Mr. Bishop in the first volume of his work on Marriage, Divorce, & Separation, §§ 77, 836: "Each particular instance of what is meant for marriage has the aid of all the presumptions, both of law and fact, and equally whether the marriage was domestic or foreign." Furthermore, it is not clear that, even if the marriage had been solem-ried, and immediately returned. And the nized in this state, it would have been void. Pub. Laws 1898, 1899, p. 49, chap. 549, § 11, merely provides that no marriage license shall issue to a person under guardianship without the written consent of the guardi an; but it by no means necessarily follows that a marriage procured without first obtaining such license would be void, although the official or other person who performed the ceremony might be liable to punishment under § 19 of the same chapter. See Parton v. Hervey, 1 Gray, 119, 121. For, while our statutes prescribe certain formalities and requirements in connection with the entering into the marriage relation, it is to be carefully borne in mind that they nowhere declare that the failure to observe any or all of said formalities or requirements shall have the effect to render a marriage void. Again, although Gen. Laws 1896, chap. 196, § 16, provides that all contracts made by a ward shall be void, it is at least very questionable whether the legislature intended that section to refer to the contract of marriage. Indeed, the words of the section referring to bargains and conveyances would clearly seem to show that it was only intended to affect contracts relating to property. Certainly the provision is not of universal application for, under Pub. Laws 1898, 1899, chap. 549, § 11, p. 49, there must be an implied exception in the case of a marriage contract to which the guardian consents in writing. Upon the questions of interpretation thus raised, however, we refrain from expressing any opinion, as we think that, even assuming that the mar riage would have been void in this state, yet, as, so far as appears, it was lawfully celebrated in Massachusetts, it must be considered valid here. We are aware that the authorities are not entirely uniform upon this point, now for the first time presented in Rhode Island; but the general principle, as we gather it from text writers and decisions, both English and American, is that the capacity or incapacity to marry depends on the law of the place where the marriage is celebrated, and not on that of the domicil of the parties. Story, Confl,

The counsel for the guardian, however, cites several cases which at first sight seem to support the position that marriage in evasion of the laws of the domicil is invalid. Thus in Stull's Estate, 183 Pa. 625, 39 L. R. A. 539, 39 Atl. 16, and Pennegar v. State, 87 Tenn. 244, 2 L. R. A. 703, 10 Am. St. Rep. 648, 10 S. W. 305, a statute forbade any person from whom a divorce was ob tained on the ground of adultery to remarry. In both cases a party forbidden to marry went into another state and remarried. The second marriage in both cases was held invalid in the state where the party was domiciled. In Dupre v. Boulard, 10 La. Ann. 411, a statute forbade the intermarriage of blacks and whites, and it was held that any such marriage, although valid where performed, would not be recognized in Louisiana. To the same effect are State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683. and Kinney v. Com. 30 Gratt. 858, 32 Am. Rep. 690. And in Brook v. Brook, 9 H. L. Cas. 193, where a statute declared that a marriage with a deceased wife's sister should be invalid, it was held that such a

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