The Borough of Marietta v. The Columbia Telephone Co. (No. 3). the ordinance was not a license fee collectible under the police power of the municipality, nor' was "it governed by the rules applicable to taexs and license fees."

We have not specifically answered the requests for findings of fact and conclusions of law, submitted by counsel in this case, because all the propositions which arise are, in our judgment, covered by the above conclusions.

It is admitted that no money has been, up to this time, laid out on behalf of the borough for any inspections, and that no inspections have been made on behalf of the borough. Under such circumstances, no expense has been incurred on this account. We are, therefore, of the opinion that no recovery can be had under the ordinance for past services. As to the future, in view of the increased cost of labor, we think that the tax on all poles of the Columbia Telephone Company in the Borough of Marietta should be fixed at twenty cents per pole. This order or decree is entered nisi, and it is directed that notice of its entry shall be given to the parties or their counsel of record. If no exceptions shall be filed by either party within ten days after the said notice, this order or decree shall be entered as a final decree by the Prothonotary. The costs of the proceeding shall be paid by the Columbia Telephone Company.

Court of Common Pleas of Lancaster County

Eckert v. Berkenbine.

Wages-Affidavit of defense.

In a suit for wages for cutting corn under an oral contract, an affidavit of defense which denies the terms set forth in the statement, and avers a different basis of computation and a smaller sum as due, is sufficient as to the excess although not specifically denying the separate paragraphs of the statement.

Rule for judgment for want of a sufficient affidavit of defense December Term, 1919, No. 82.

John A. Coyle, for rule.

John E. Malone, contra.

July 3, 1920. Opinion by HASSLER, J.

The plaintiff seeks to recover judgment here on an oral contract wherein it was agreed that the plaintiff was to cut corn for the defendant at the rate of $5.00 per acre. He alleges that he cut seven and two-tenths acres of corn, for which he has not been paid. In his affidavit of defense the defendant does not deny that an oral contract was made at the time alleged by the plaintiff, but denies that the terms of it are those set forth in plaintiff's statement. He alleges that the con

Eckert v. Berkenbine.

tract was that the plaintiff and William Long were to receive $50.00 for cutting three hundred rows of corn, that they only cut two hundred and eighty-eight rows of it, for which the plaintiff was entitled to receive the sum of $24.00 and William Long the sum of $24.00.

The affidavit of defense is clearly sufficient to prevent judgment for all in excess of the amount which the defendant admits to be due. The rule for judgment is made absolute, and judgment entered for the plaintiff for the sum of $24.00 with leave to proceed for the balance of his claim.

Orphans' Court of Lancaster County

Estate of Clarence G. Smith.

Funeral expenses-Insurance policy-Beneficiary.

Where the proceeds of a life-insurance policy were paid to the mother of a decedent and by her paid out for funeral expenses, she is not entitled to be reimbursed from the estate where she was not shown to have been named as a beneficiary in the policy.

Clarence G. Smith died intestate January 23, 1920. He left a widow, Mary K., and a child, Catharine May Smith, both of whom are minors and both of whom have for their guardian C. A. Sauber. A part of the intestate's estate is the proceeds of a policy of insurance of the Prudential Insurance Company of America, amounting to $222.00. This has not been included in the account for the reason that it was paid to Katie S. Smith, the mother of the decedent, and by her used to defray the funeral expenses, which were $221.91.

It was believed at that time that this constituted the entire estate. Subsequently, however, Clarence G. Smith having lost his life while in the service of the Pennsylvania Railroad Company, that company paid in settlement of his death claim the sum of $3595.70. Katie S. Smith now asks that the amount of $221.91 expended for funeral expenses be awarded her out of this fund, for the reason that the proceeds of the life-insurance policy was paid to her as the beneficiary under the policy. If this was the fact, her claim might be entertained. By agreement a blank form of a policy of the Prudential Company was submitted as evidence. It does not appear to contemplate a beneficiary, nor is provision made in it for filing in the name of one. It is found, therefore, that this insurance money was part of Clarence G. Smith's estate and that its indebtedness to claimant has been paid.

Court of Common Pleas of Lancaster County

The B. B. Martin Co. v. The Pennsylvania Railroad Co.

Fire from locomotive spark-More specific statement.

In an action for a loss by fire alleged to have been caused by sparks from a locomotive engine on the defendant's railroad adjoining the plaintiff's property, the plaintiff may establish the defendant's liability by circumstantial evidence and the plaintiff need not specify in the statement the number of the engine, and direction in which it was going, concerning which it disavows knowledge, but must include those matters concerning which it has knowledge, including if it can the time at or about which the fire started.

Rule for a more specific Statement. March Term, 1920, No. 41.
John A. Nauman, for rule.

Chas. G. Baker, contra.

June 26, 1920. Opinion by LANDIS, P. J.

The plaintiff's statement alleges that, on March 22, 1919, and prior thereto, it was the owner of 380,000 feet of lumber on its premises situate at the corner of the Manheim Pike and North Prince Street, in the Township of Manheim and County of Lancaster; that at that time the defendant was operating a railroad owned by the Pennsylvania Railroad, which adjoined the premises on which the said lumber was located; that the defendant was running locomotive engines, containing fire and igneous matter, along and upon the railroad tracks, in the conduct of defendant's business of carrying passengers and freight as a common carrier for hire; that the defendant, on March 22, 1919, did so carelessly, negligently and unlawfully manage, direct and operate its locomotives and the fire and igneous matter therein contained, and did so carelessly and negligently act in failing to provide and maintain proper guards, appliances and devices for arresting sparks and igneous matter, and did use such improper fuels and materials for generating power for the operation of the said locomotives, that great quantities of sparks and burning coals and other igneous matter escaped from one or more of said locomotives while passing the premises on which the lumber of the plaintiff was located, which said sparks and burning coals set and communicated fire to and destroyed the said lumber. The value of the same is fixed at fifteen thousand dollars.

The defendant has presented a petition, asking for a more specific and itemized statement. The objections raised to the statement are: 1. The kinds, qualities, sizes, &c., of the lumber, and the prices claimed for each kind and size, are not set forth; 2, the number or numbers of the engine or engines which it is alleged caused the fire are not given; 3, the time of day when the fire occurred is not mentioned; 4, the direction in which the engine or engines were moving is not given; and 5, the time at or about which the engine or engines of the defendant passed the point at which the fire started is not set forth. An answer was filed by the plaintiff, and, in reply to the first objection, the kind

VOL. XXXVII, No. 49

The B. B. Martin Co. v. The Pennsylvania Railroad Co.

of lumber, the quality and the sizes are presented. As to the second and fourth objections, the plaintiff avers that it is not able to furnish the information requested. As to the third and fifth objections, the time is set forth as about or prior to seven o'clock a. m. on March 22, 1919. The plaintiff is now ordered to amend its statement as to those matters concerning which it has knowledge.

It was held in Melsinger v. Pennsylvania Railroad Co., 229 Pa. 122, that, "in an action against a railroad company to recover damages for destruction of property by sparks, the plaintiff may recover, although his evidence is wholly circumstantial that a particular engine started the fire, and he produces no witness who actually saw the fire communicated by the engine to the building."

In Henderson v. Phila. & Reading R. R. Co., 144 Pa. 461, it was ruled that, in an action for a loss by fire, caused by sparks from a locomotive engine of a railroad company, the burden is on the plaintiff to prove that the fire was communicated by some engine of the defendant company, and also to prove negligence in the construction or management of the engine; but that such facts may be established by circumstantial evidence; that when the fire is shown to have been caused, or in the nature of the case could only have been caused, by sparks from an engine which is known and identified, the evidence should be confined to the condition, management and practical operation of that engine; and testimony tending to prove defects in other engines of the company is irrelevant and inadmissible; that if, however, the offending engine is not clearly nor satisfactorily identified, it is competent for the plaintiff to prove, in support of the allegation that the fire was caused by defendant's negligence, that the defendant's locomotives generally, or many of them, at or about the time of the occurrence, threw sparks of unusual size, causing numerous fires on that part of its road; that this class of testimony is exceptional in character at the best, and is admissible only because direct evidence is impracticable; the examination, therefore, should be confined to the negligent operation of the engines at or about the time of the fire, with such reasonable latitude, before and after the occurrence, as is sufficient to make such proofs practicable. See, also, Byers v. Balto. & Ohio R. R. Co., 222 Pa. 547; John Hancock Ice Co. v. Perkiomen Railroad Company, 224 Pa. 74; Knickerbocker Ice Co. v. Pennsylvania R. R. Co., 253 Pa. 54; Mitchell v. Northern Central R. R. Co., 253 Pa. 375.

In Fulton Farmers Assoc. v. Bomberger, 34 LANC. LAW REVIEW 172, it was decided that where matters are stated to be wholly within the knowledge of the defendant and not known to the plaintiff, a more specific statement need not be filed; and in Sheaffer v. Pennsylvania R. R. Co., 34 LANC. LAW REVIEW 385, we held that, in an action against a railroad company for damages for injury by fire to property adjoining its tracks alleged to have been caused by sparks from a defective smokestack on a locomotive, the plaintiff should not be compelled to file a more specific statement, although his statement fails to give the number of the locomotive, the direction in which it was going or the time of day, and avers that these facts are unknown to the

The B. B. Martin Co. v. The Pennsylvania Railroad Co.

plaintiff; and that a more specific statement will not be required in relation to matters as to which the defendant should have as much knowledge as the plaintiff. See, also, Brauer v. Moore, 24 LANC. LAW REVIEW 303. In Sheaffer v. Pennsylvania Railroad Co., supra, we said: "The plaintiff says that the fire was about midday on a specific date, and that the engine which caused the damage was going westerly. He does not know the number of the engine; but the defendant, with these facts before it, certainly has a better opportunity for obtaining the numbers of the engines passing in this direction about this time than the plaintiff has," and that Courts do not require of litigants impossible things." See, also, Murdock v. Martin, 132 Pa. 86.

We are, therefore, of the opinion that the plaintiff need not file a statement as to those matters concerning which it disavows knowledge, and the rule is now made absolute to the extent above mentioned.

W. M. Ritter Lumber Co. v. Director General of Railroads operating Pennsylvania Railroad.

Foreign corporation - Right to bring suit in Pennsylvania - Question raised by affidavit of defense-Acts of June 8, 1911, P. L. 710, April 22, 1915, P. L. 170, and Practice Act 1915, Sec. 20.

The court will not enter judgment for the defendant in a suit on an affidavit which merely avers that "while the caption of the suit shows that the plaintiff is a foreign corporation, the statement itself does not show whether or not it is duly authorized and empowered to do business within the state of Pennsylvania," without stating the facts which constituted doing business there.

Question of law raised by affidavit.

Charles G. Baker, for plaintiff.

John A. Nauman, for defendant.

March Term, 1920, No. 48.

June 26, 1920. Opinion by LANDIS, P. J.

On February 24, 1920, a summons in assumpsit was issued at the instance of the plaintiff against the defendant. On May 4, 1920, the plaintiff filed its statement, in which it alleged that, on March 22, 1919, it was the owner of two carloads of lumber, which were upon the premises of the B. B. Martin Company, situated at the corner of the Manheim Pike and North Prince Street, in the Township of Manheim, in the County of Lancaster; that the defendant did so carelessly, negligently and improperly manage, direct and operate its locomotives and the fire and igneous matter therein contained, and did so carelessly and negligently act in failing to provide and maintain proper guards, appliances and devices for arresting sparks and igneous matter, and did use such improper fuels and materials for generating power for the operation of the said locomotives, that, by reason of the said negligence and carelessness, great quantities of sparks and burning coals escaped from and were emitted by and ejected and propelled from one or more of the