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have been made safer by some other device or arrangement, nevertheless, defendant was not bound to adopt the safest attachment. Over and over we have said no such burden is imposed upon an employer. Assuredly, there were in use thousands of different patterns of other boilers which had no such attachment; but there was no evidence that this had ever been rejected because unsafe, or that it had not such extended use as defendant claimed, and adduced evidence to establish. He was neither a boiler maker, nor an engineer. He could only select one at the suggestion of those who used boilers, or on the recommendation of those who were experts. If, in the exercise of business pru

dence, he got an unsafe boiler, yet one which was in ordinary use, he is not answerable for the consequences.

Alexander B. COHN, Appt.,

v.

Simon MAY.

(210 Pa. 615.)

The occupant of the lower floors of a building, who blocks the stairway leading from the upper floor to the ground so that a tenant of such floor, in seeking to escape a fire, is compelled to drop a considerable distance to reach the ground, is liable for the injury resulting to him therefrom.

(February 20, 1905.)

APPEAL by plaintiff from a judgment of the Court of Common Pleas, No. 1, for Philadelphia County in favor of defendant in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Reversed.

From the testimony at the trial it appeared that the plaintiff and his brother occupied the fifth story of a building of which defendant occupied the lower floors. A fire occurred in the building, and plaintiff, in attempting to escape by a flight of stairs, found the exit cut off by obstructions placed by defendant. He then attempted to use a rope fire escape which did not reach below the second story, and was compelled to drop from the end of it to the ground to his injury.

Another point was made at the trial which calls for notice. It was alleged on the part of plaintiff that there was no proper inspection of the boiler; that age and use had inpaired its strength, and that the consequent weakness may have aggravated the disaster, if it did not cause it. We cannot see how other than one view can be taken of the evidence; either the accident was caused by the unsafe design of the plate over the tubes, or by the negligence of the engineer in manipulating the nut with the wrench; but, assume that neither was the cause, and

that it had its source in the weakness of an
impaired boiler, then was there sufficient
evidence of neglectful inspection to render
defendant answerable? The boiler was

Further facts appear in the opinion.
Mr. Samuel Englander, for appellant:
The statement filed in this action is suf-

ficient whichever way it is looked at, wheth-
er the clause impliedly charging the de-
fendant as lessor is treated as an induce-

several times inspected by the official boiler inspector of the city, who declared it to be in safe condition; the last time just three ment, and is immaterial, and can be treated days before the accident, when the inspector, as surplusage, or whether treated as a maafter examination, delivered to defendant histerial allegation, and thus charging a official certificate of inspection, setting out double cause of action, to wit, charging him that the boiler would stand a working pres- as landlord and as cotenant. sure of 90 pounds to the square inch,-just twice that which was on it when the accident occurred. This official must be pre-planatory. sumed to have done his duty. Nor is there 5 Am. & Eng. Enc. Law, p. 355; Erie City Iron Works v. Barber, 118 Pa. 6, 12 Atl. 411; Martens v. O'Connor, 101 Wis. 20, 76 N. W. 774; Repsher v. Shane, 3 Yeates, 575; Spencer v. Dawson, 1 Moody

Inducement states under what circumstances the contract was made, and is ex

NOTE. As to effect of intervening cause on

anything in the evidence to rebut that presumption. But, even if he failed, how can defendant be held responsible? He had not the knowledge which fitted him to inspect. What else, in the exercise of care, could he do, than rely upon the official certificate of a competent and sworn officer? We think there was no evidence from which the jury could find absence of care on part of defendant in this particular. To hold otherwise would place employers in a situation of as great risk as that of accident insurance companies.

liability for negligence, see also cases in notes to Smith v. County Court, 8 L. R. A. 82, and Smithwick v. Hall & U. Co. 12 L. R. A. 279; also the later cases, in this series, of PennsylGoodlander Mill Co. v. Standard Oil Co. 27 L. R. A. 583; Stone v. Boston & A. R. Co. 41 L. R. A. 794; Southern R. Co. v. Webb, 59 L. R. A. 109; Cole v. German Sav. & L. Soc. 63 L. R. A. 416; Hebert v. Lake Charles Ice, Light, & Wa

vania R. Co. v. Hammill, 24 L. R. A. 531;

The judgment is reversed, and judgment terworks Co. 64 L. R. A. 101; Nelson v. Naris entered for defendant.

ragansett Electric Lighting Co. 67 L. R. A. 116.

& R. 552; Geddis v. Irvine, 5 Pa. 508; Miltenberger v. Schlegel, 7 Pa. 241; Smith v. Teacle, 8 Pa. Co. Ct. 150; Kline v. Guthart, 2 Penr. & W. 490; Com. use of Haffey v. Haffey, 6 Pa. 348; Filson v. Dunbar, 26 Pa. 475; Frankum v. Falmouth, 2 Ad. & El. 452; 22 Enc. Pl. & Pr. p. 604; Walsh v. Hastings, 20 Colo. 243, 38 Pac. 324; McAdams v. Sutton, 24 Ohio St. 333.

If a number of grounds or causes of action are alleged, and only one proved, the plaintiff can succeed.

Thomas v. Central R. Co. 194 Pa. 511, 45
Atl. 344; Valentine v. A. Colburn Co. 10
Pa. Super. Ct. 453; Coates v. Chapman, 195
Pa. 109, 45 Atl. 676; Snyder v. Witmer, 12
W. N. C. 301; McIntire v. Westmoreland
Coal Co. 118 Pa. 108, 11 Atl. 808; Sidwell
| 463, 51 N. Y. Supp. 1080.

v. Evans, 1 Penr. & W. 383, 21 Am. Dec.
387; 22 Enc. Pl. & Pr. p. 567; Platz v.
McKean Twp. 178 Pa. 601, 36 Atl. 136; Ben
Franklin F. Ins. Co. v. Flynn, 98 Pa. 627;
Pennsylvania F. Ins. Co. v. Dougherty, 102
Pa. 568; Magill v. Swearingen, 10 Pa. 497;
McEachin v. Stewart, 106 N. C. 336, 11 S.
E. 274.

Plaintiff's injuries were the proximate result of defendant's negligence, exclusive of statutory regulation.

21 Am. & Eng. Enc. Law, 2d ed. pp. 487. 488; Hey v. Philadelphia, 81 Pa. 44, 22 Am. Rep. 733; Oil City Gas Co. v. Robinson, 99 Pa. 1; Bunting v. Hogsett, 139 Pa. 363, 12 L. R. A. 268, 23 Am. St. Rep. 192, 21 Atl. 31, 33, 34; Quigley v. Delaware & H. Canal Co. 142 Pa. 388, 24 Am. St. Rep. 504, 21 Atl. 827; Drake v. Kiely, 93 Pa. 492; Vallo v. United States Exp. Co. 147 Pa. 404, 14 L. R. A. 743, 30 Am. St. Rep. 741, 23 Atl. 594; Sturgis v. Kountz, 165 Pa. 358, 27 L. R. A. 390, 30 Atl. 976; Webster v. Monongahela River Consol. Coal & Coke Co. 201 Pa. 278, 50 Atl. 964; Pittsburgh v. Grier, 22 Pa. 54, 60 Am. Dec. 65: Scott v. Hunter, 46 Pa. 192, 84 Am. Dec. 542; Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695; Brown v. Lynn, 31 Pa. 510, 72 Am. Dec. 768; McGrew v. Stone, 53 Pa. 436; Chambers v. Carroll, 199 Pa. 371, 49 Atl. 128; Sewell v. Moore, 166 Pa. 570, 31 Atl. 370.

Plaintiff's injuries were the proximate result of defendant's negligent act, by act of assembly of June 8, 1893.

21 Am. & Eng. Enc. Law, 2d ed. p. 478; Lederman v. Pennsylvania R. Co. 165 Pa. 118, 44 Am. St. Rep. 644, 30 Atl. 725; Connor v. Electric Traction Co. 173 Pa. 602, 34 Atl. 238.

The fact that the statute or ordinance in question does not in terms impose a civil liability for its violation does not affect evidence of its violation as going to show negligence.

21 Am. & Eng. Enc. Law, 2d ed. p. 483; Pauley v. Steam Gauge & Lantern Co. 131 N. Y. 90, 15 L. R. A. 194, 29 N. E. 999; Parker v. Barnard, 135 Mass. 116, 46 Am. Rep. 450; Correll v. Burlington, C. R. & M. River R. Co. 38 Iowa, 120, 18 Am. Rep. 22; Reynolds v. Hindman, 32 Iowa, 146; Dodge v. Burlington, C. R. & M. River R. Co. 34 Iowa, 276; Bott v. Pratt, 33 Minn. 323, 53 Am. Rep. 47, 23 N. W. 237; Garibaldi v. O'Connor, 112 Ill. App. 53; King v. Russell, 6 East, 429; Com. v. Passmore, 1 Serg. & R. 217; People v. Cunningham, 1 Denio, 524, 43 Am. Dec. 709; Murphy v. Leggett, 29 App. Div. 309, 51 N. Y. Supp. 472, Affirmed in 164 N. Y. 121, 58 N. E. 42; Linehen v. Western Electric Co. 29 App. Div.

Mr. George P. Rich, for appellee:

The probable consequence is one that is more likely to follow the supposed cause than it is to fail to follow it.

Hoag v. Lake Shore & M. S. R. Co. 85 Pa. 293, 27 Am. Rep. 653; South Side Pass. R. Co. v. Trich, 117 Pa. 390, 2 Am. St. Rep. 672, 11 Atl. 627; Wood v. Pennsylvania R. Co. 177 Pa. 306, 35 L. R. A. 199, 55 Am. St. Rep. 728, 35 Atl. 699; Swanson v. Crandall, 2 Pa. Super. Ct. 89; Elliott v. Allegheny County Light Co. 204 Pa. 568, 54 Atl. 278.

Although the defendant's violation of a statute, and the plaintiff's injuries consequent thereupon, be shown, the former will not be liable merely because his act constituted a violation of the law, but only if it proximately caused the injuries complained of.

Christner v. Cumberland & E. L. Coal Co. 146 Pa. 67, 23 Atl. 221; Sewell v. Moore, 166 Pa. 570, 31 Atl. 370; 21 Am. & Eng. Enc. Law, p. 480.

Plaintiff sought to amend by introducing a new cause of action, to wit, an action of tort, for obstructing a stairway, after the statute of limitations, to wit, two years, had become a bar. This cannot be permitted.

Royse v. May, 93 Pa. 454; Philadelphia v. Hestonville, M. & F. R. Co. 203 Pa. 38, 52 Atl. 184; Grier v. Northern Assur. Co. 183 Pa. 334, 39 Atl. 10; Murphy v. Crawford, 114 Pa. 496, 7 Atl. 142; Trego v. Lewis, 58 Pa. 463; Smith's Appeal, 108 Pa. 508; Duffey v. Houtz, 105 Pa. 96; Tyrrill v. Lamb, 96 Pa. 464.

Potter, J., delivered the opinion of the court:

In the statement of claim filed by the plaintiff in this case it was averred that the plaintiff's firm “rented the fifth floor of the said building of the defendant, who was then and there lessee of the entire premi

ses," and that it was the duty of defendant | Pa. 570, 31 Atl. 370. There the plaintiff to accord to the plaintiff ready and con- was prevented from reaching the fire escape venient ingress and egress from the build- by the fact that the door leading to it was ing by the back stairway; and it was locked, and she then jumped from a wincharged that the defendant had negligently dow, and was injured. The court said, at violated such duty by blocking up the stair- page 576 of 166 Pa., page 373 of 31 Atl.: way by placing boxes upon it. Upon the "The difficulty was in the locking of the trial it appeared that plaintiff's firm did door that led to [the fire escape] not rent from defendant, but that both on the third floor. The plaintiff got to this leased from a third party, agent for the in time, and, had it been open, as it should owner of the building. Plaintiff moved to have been, she could have escaped . amend the statement to accord with the injury. The only proximate and facts, but the court refused to allow the effective cause of the injury was the locking amendment, holding that it would introduce of the door." A cause is not too remote a new cause of action. No exception was merely because it produces the damages by taken to the refusal to allow plaintiff to means of an intermediate agency. Where amend. At the close of the plaintiff's testi- the injury was the immediate consequence mony a compulsory nonsuit was entered, of some peril to which the injured party which the court subsequently refused to was obliged to expose himself in order to take off. This refusal is the only question avoid the peril arising from the defendant's properly raised upon this appeal. It seems negligence, it is proximate enough. Pittsthat, while the trial judge was of opinion | burgh v. Grier, 22 Pa. 54, 60 Am. Dec. 65; that there was a material variance between Vallo v. United States Exp. Co. 147 Pa. the allegations and the proof, yet the re- 404, 14 L. R. A. 743, 30 Am. St. Rep. 741, fusal to take off the nonsuit was based upon 23 Atl. 594. The cases upon this subject the ground that the negligence of the de- are reviewed in Gudfelder v. Pittsburg, C. fendant was not the proximate cause of the C. & St. L. Co. 207 Pa. 629, 57 Atl. 70; and accident. An examination of the statement the test of proximate cause is again cited shows that the substantial cause of action as being whether the facts between the negwhich it sets forth is that upon which the ligent act and the final result to the plainplaintiff relied at the trial. The statement tiff constitute a continuous succession of as to the respective tenancies of the parties events, so linked together that they become was merely explanatory, and might have a natural whole. been omitted. It is clearly set out that the plaintiff's firm were occupants of the fifth floor of the building, and the defendant "then and there occupied certain floors of said building below plaintiff;" that defendant, his servants, and agents permitted and caused to be laced upon a certain stairway, leading to and from the fifth floor, divers boxes, so that the stairway became choked and blocked with said boxes, and ingress to and egress from the fifth floor by way of said stairway was cut off, and, as a result thereof, the plaintiff was injured. This was a direct averment of negligence on the part of the defendant, which the evidence produced at the trial tended to prove. We think it was sufficient. See Coates v. Chapman, 195 Pa. 109, 45 Atl. 676. In his opinion refusing to take off the nonsuit the trial judge says that, under the evidence, the jury would have been warranted in finding that the boxes placed by defendant's workmen upon the back stairway constituted the obstruction which prevented the plaintiff from making use of that means of exit. But he does not think this act of negligence can be considered as the proximate cause of the injuries which resulted to plaintiff. In this conclusion we cannot agree. A case much like the present one in some of its facts was Sewell v. Moore, 166

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In the present case, danger from fire was reasonably to be apprehended and guarded against at all times. The stairways, both front and back, formed the natural means of passage to and from the upper stories, and common prudence required that they be kept free from obstructions. When the servants of the defendant blocked up the passageway, they may not have anticipated that a fire would occur so soon; but they were responsible for any resulting damage which might be caused by their careless act. The result might have been a fall upon the stairway by someone seeking to pass. It might have resulted in damage in more than one unforeseen direction. But as it was, it so happened that, under the imperative necessity of escaping from the fire, the plaintiff sought to descend the stairway. Had it been unobstructed, he could readily have escaped in that way. But he says in his testimony that the boxes which had been placed in the way by the defendant's servants cut him off. Being in extreme peril, and acting upon what seemed to him the best judgment, he says that the only way of escape he then found open was through a window and down a rope, and then by a drop to the ground. In following this method he received the injuries for which he here seeks to recover. If the jury believe the testimony of the

plaintiff, it presents a succession of events | could not reasonably make use of them, such which may properly be considered as unbroken. Certainly, if the sequence of events as they actually did occur had been suggested beforehand to the mind of a reasonably prudent man, he would have thought it quite possible for them to follow.

obstruction may have fairly been held to be the proximate and effective cause of the injury suffered by the plaintiff. The assignment alleging error in the refusal to take off the nonsuit is sustained.

The judgment is reversed, and a proce dendo is awarded.

Our conclusion in this case is that, if the stairs were so obstructed that the plaintiff

UNITED STATES CIRCUIT COURT OF APPEALS, THIRD CIRCUIT.

SUPREME COUNCIL AMERICAN LE-tary, the contracting parties were not upon GION OF HONOR, Plff. in Err., equal terms, and for that reason the doctrine of anticipatory breach, as laid down

บ.

Henry B. LIPPINCOTT to Use of George in Johnstone v. Milling, L. R. 16 Q. B. Div. L. Lippincott. 460; Hochster v. De La Tour, 2 El. & Bl. 678, 22 L. J. Q. B. N. S. 455; and Frost v. Knight, L. R. 7 Exch. 114,-does not apply, because the doctrine there laid down is limited to contracts not even partially performed by either party.

Jessop v. Ivory, 158 Pa. 71, 27 Atl. 840. The notice of an intention not to perform the contract, if not accepted by the other party as a present breach, remains only a matter of intention, and may be withdrawn at any time before the performance is in fact due.

(67 C. C. A. 650, 134 Fed. 824.)

1. An election to treat the original contract as still in force, upon notification of reduction in the amounts of certificates in a mutual benefit society, adhered to for two years and five months, is not subject to change, so as to permit a certificate holder to treat the contract as rescinded, and sue for assessments paid.

2. Breach of the contract of a mutual benefit society by arbitrary reduction of the amounts of outstanding certificates is not a continuing one, so as to entitle a certificate holder to elect to treat the contract as rescinded at any time before the time set for performance.

States for the Eastern District of Pennsylvania to review a judgment in favor of plaintiff in an action brought to recover assessments alleged to have been wrongfully exacted upon a mutual benefit certificate. Reversed.

The facts are stated in the opinion. Argued before Acheson, Dallas, and Gray, Circuit Judges.

(February 13, 1905.)

to the Circuit Court of the United jeopardize the plaintiff's rights, he having

partially performed, the payment under protest is compulsory.

Messrs. Murdoch Kendrick and Frank P. Prichard, for plaintiff in

error:

Plaintiff was not entitled to change his election.

Zuck v. McClure, 98 Pa. 541; Ripley v. M'Clure, 4 Exch. 345; Leake, Contr. 873.

Although, as a general rule, a payment exacted as a condition to the performance of a contract cannot be considered compulsory if the nonperformance of the contract would

NOTE.-As to right to rescind or abandon contract because of other party's default, see Lake Shore & M. S. R. Co. v. Richards, 30 L. R. A. 33, and note.

Acheson, Circuit Judge, delivered the opinion of the court:

Johnstone v. Milling, L. R. 16 Q. B. Div. 460; Morgan v. McKee, 77 Pa. 228; Dingley v. Oler, 117 U. S. 490-503, 29 L. ed. 984988, 6 Sup. Ct. Rep. 850.

It was decided by this court in Supreme Council A. L. H. v. Black, 59 C. C. A. 414, 123 Fed. 650, that, by reason of the adoption by the corporation of the by-law reducing the insurance certificate from $5.000 to $2,000, and putting the by-law into effect by

error:

Even though the payments were volun

Mr. J. H. Brinton, for defendant in making assessments on the reduced basis, and notifying the certificate holders, a certificate holder who had performed his part of the contract, and had not consented to the reduction, might elect to treat the contract as rescinded, and sue immediately to recover back all the assessments he had paid

Niedermeyer v. University of Missouri, 61 Mo. App. 654; Westlake v. St. Louis, 77 Mo. 47, 46 Am. Rep. 4; Horner v. State, 42 App. Div. 430, 59 N. Y. Supp. 96; Buford v. Lonergan, 6 Utah, 301, 22 Pac. 164; Corkle v. Maxwell, 3 Blatchf. 413, Fed. Cas. No. 3,231.

ary (Mrs. Lippincott) could have recovered the amount of his insurance certificate, $5,000. The protests which accompanied the plaintiff's payments of assessments were intended merely to preserve his contract rights under his $5,000 certificate, and had no other effect

under his certificate. We applied to the case the principle enunciated in Hochster v. De La Tour, 2 El. & Bl. 678; Johnstone v. Miling, L. R. 16 Q. B. Div. 460, and Roehm v. Horst, 178 U. S. 1, 13, 44 L. ed. 953, 953 20 Sup. Ct. Rep. 780, that when one party to a contract to be pedformed at a future time announces his intention not to perform it, the other party, if he chooses, may elect to act upon such announcement as a wrongful renunciation of the contract, and may thereupon treat the same as a breach of the contract, and bring suit at once for such breach. Black had given immediate notice that he regarded the by-law as a breach of the contract, and he promptly brought his action. In the subsequent case of Supreme Council A. L. H. v. Daix, 64 C. C. A. 435, 130 Fed. 101, we held that the certificate holder there suing had not lost his right to treat the contract as rescinded, and recover back the assessments he had paid, simply because of a delay of two years and three months in giving notice of his election to do so; he having done nothing in affirmance of the bylaw or indicating a waiver of his right to treat the contract as rescinded, and having done no act tending to mislead the corporation; and it not appearing that the corporation had suffered any injury from the delay of the plaintiff in signifying his election to rescind. The present case differs from the two former ones (the Cases of Black and Daix) in this: That, immediately upon the adoption and putting into effect of the by-law, the plaintiff (Lippincott) made his election not to treat the contract under his $5,000 certificate as at an end, or broken, but to keep the contract in full force, and to maintain unimpaired all his rights thereunder; and to that position he steadfastly adhered for a period of two years and five months. The court below, in its opinion, says: "The unquestioned facts show plainty that the plaintiff, by his words and conduct, declared his intention not to assent to the reduction of his certificate, but to hold on to the original agreement." To this latter end he protested against the attempted reduction, offered to pay assessments upon the full face of his certificate, and thereafter paid assessments based upon the reduced amount, but always under protest, until February 28, 1903, when he wrote to the local council: "I shall discontinue to pay the dues and assessments on the $5,000 certificate issued to me, and will ask you to return me the amount paid by me on the same up to October 1, 1900, at which time, by the adoption of the resolution, you abrogated your contract with me." Now, undoubtedly the plaintiff had kept his contract alive, so that, if he had died between October 1, 1900, and February 28, 1903, his benefici

This action was brought on March 18, 1903, for the recovery of the dues and assessments paid by the plaintiff under his certificate prior to October 1, 1900, the date when the reducing by-law of August, 1900, went into effect. Anticipatory breach of the contract is the ground of recovery relied on. Can the plaintiff recover, in view of his eleetion, made in October, 1900, not to accept the defendant's action as an anticipatory breach, but to treat the contract as continuing in full force, his subsequent retention of membership in the order, and his payments of assessments down to February 28, 1903? This question can best be answered by referring to what was said in Hochster v. De La Tour, 2 El. & Bl. 678, Johnstone v. Milling, L. R. 16 Q. B. Div. 460, and Rochm v. Horst, 178 U. S. 1, 13, 44 L. ed. 953, 958, 20 Sup. Ct. Rep. 780, the leading cases on the subject of anticipatory breaches of contracts. We extract from these cases the following principles: Where one party to a contract to be performed in the future, before the time for performance arrives, refuses to perform, or declares his intention not to perform, he thereby, so far as he is concerned, declares his intention then and there to rescind the contract. Such renunciation, however, in and of itself does not work a rescission, for one party to a contract cannot, by himself, rescind it. But by making the wrongful renunciation he entitles the other party, if he pleases, to agree to the contract being put an end to, subject to the retention by him of his right to bring an action in respect to such wrongful rescission. L. R. 16 Q. B. Div. 467. A declaration by the promisor, before the time for performance has arrived, of his intention not to perform, is not in itself, and unless acted on by the promisee, a breach of the contract. Such declaration only becomes a wrongful act if the promisee elects to treat it as such. If he does so elect, it becomes a breach of contract, and he can recover upon it as much. 1d. 473. In Johnstone v. Milling, L. R. 16 Q. B. Div. 460, 467, Lord Esher, Master of the Rolls, said: "The other party may adopt such renunciation of the contract by so acting upon it as, in effect, to declare that he, too, treats the contract as at an end, except for the purpose of bringing an action upon it for the damages sustained by him in consequence of such renunciation. He cannot, however, himself proceed with the contract on the

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