that he assented to what was done in the management of the team which did the injury, and therefore was answerable." See, also, Beedy v. Reding, 16 Me. 362, a very analogous case to the present. The jury should have been instructed that, if the corn was taken by any of the defendant's family under the circumstances charged, then it was not necessary that he should have been present, or ordered or aided the taking in any way. If he knew of it at the time or afterwards, he was liable for its value in this action. There was also error in not setting aside the levy on the fi. fa., and relieving the appellant from the costs of it. There was an outstanding attachment, prior to this levy, which appellant was not bound at his own risk to disregard. The fi. fa. was oppressively issued when appellant was in no default, and the subsequent assignment and discontinuance of the attachment did not cure the original wrong. Judgment re versed, and venire de novo awarded. ZELL v. DUNKLE et al. (Supreme Court of Pennsylvania. July 19, 1893.) ASSUMPSIT-WHEN LIES - LIABILITY OF BAILEELOSS BY FIRE. 1. Where property placed in defendants' custody, under a contract by which they are to make repairs thereon, is destroyed by their negligence, assumpsit may be properly brought by the owner to recover the value thereof. 2. In assumpsit for the value of a boiler left by plaintiff with defendants, and which, while in their custody, was destroyed, with their shop, by an incendiary fire, it appeared that the boiler was stored in a building used for storing engines and boilers belonging to defendants, and that it was cared for in the same way as defendants cared for their own boilers. No watchman was employed at the building at night, when the fire occurred; but there was no evidence that ordinary care required the employment of such watchman, or that he was usually employed at such shops. Held, that a nonsuit was properly entered. Appeal from court of common pleas, Lancaster county; D. McMullen, Judge. Assumpsit by Aaron Zell against S. F. Dunkle and others, doing business as the Star Heating Company, for the value of a boiler placed in defendants' custody for repairs. From a judgment for defendants, plaintiff appeals. Affirmed. B. F. Davis, for appellant. Brown & Hensel, for appellees. WILLIAMS, J. In the spring of 1889 the plaintiff purchased at public sale an engine and boiler. The boiler was out of repair, and unfit for use. The defendants had a shop at Mt. Joy, Lancaster county, at which they made and repaired steam boilers. The plaintiff sent the boiler he had purchased to the defendants' shop, for repairs, in the early part of May. They engaged to make the repairs, and have the work done by the 1st day of June. The repairs were not made at the time agreed on, and before they were made, viz. on the 22d day of June, 1889, the shop was destroyed by an incendiary fire, and the plaintiff's boiler was so injured by the heat as to be rendered practically worthless. This action was brought to recover the value of the boiler. At the trial the learned judge of the court below entered a compulsory nonsuit for the reason that the cause of action was one that could not be recovered for in assumpsit. This ruling is the error assigned. Its The contract between these parties was for the performance of certain mechanical labor, and the supply of necessary materials therefor, in the repair of the boiler. This kind of an agreement is described by text writers as "locatio operis." The subject of the contract is labor, to be expended by the workman on the property of the hirer, for an agreed price, or upon a quantum meruit. The possession of the article on which the labor is to be expended passes to the workman, for the purposes of the contract. storage, from the time the article is received until the work upon it is completed, is a necessary incident of the undertaking of the workman. The obligations imposed by the locatio operis, and capable of enforcement by an action on the contract, are as follows: (a) To do the work which is the subject of the undertaking; (b) to do it within the time agreed on, or within what may be, in view of all the circumstances, a proper time; (c) to do it in a proper manner; (d) to surrender the property on which the labor has been expended, on payment for the work done. This action is not brought to enforce either of these obligations, but, as is stated in the testimony of plaintiff, and in the declaration on file, it is brought to recover the value of the boiler destroyed in the fire, on the theory that the defendants' negligence caused the loss. If there had been no previous contract relation between the parties. damages occasioned by the negligence of the defendants could have been recovered only in an action on the case; but the fact that the boiler came into the possession of the defendants by reason of, or as incidental to, the contract for repairs to be made upon it, imposed the duty upon the defendants to exercise ordinary care for the safety and preservation of their customer's property. By receiving the boiler into their possession for the purpose of repairing, they must be held to have subjected themselves to an undertaking, implied from the nature of the express contract for repairs, to do what, in good faith and common fairness, ought to be done for the protection of their customer's goods. If they have failed in the performance of the duty imposed by this implied undertaking, an action of assumpsit will lie. At the same time, it is true that if the failure involves a tort, such as the willful de struction of his customer's goods, or a conversion of them to his own use, he may be proceeded against, at the election of his customer, for the tort, and in an action ex delicto. In Reeside's Ex'r v. Reeside, 49 Pa. St. 322, it was held that, when a duty arises out of an implied undertaking to do an act requiring skill or fidelity, an action of assumpsit will lie to enforce the duty, or an action on the case for the tort involved in the breach of duty may be sustained. The liability of a carrier is analogous to that of the mechanic in this case. His undertaking is to carry, and deliver to the consignee. If he fails to deliver the article, he is liable on his contract, whether the cause of his failure be his negligence, his fraud, or his crime, for his contract is broken in either case. But if the cause of his failure be his own fraud or felony, he may, at the election of his customer, be proceeded against for his tort, in any appropriate form of action ex delicto. Hunt v. Wynn, 6 Watts, 47, is among the cases in which this doctrine has been laid down. Upon the facts of this case, we think assumpsit was a proper form of action, and the learned judge erred in entering the nonsuit for the reason given by him,-that the action should have been an action of trespass on the case. But was the plaintiff entitled to go to the jury upon the case made by him? The care which the defendants were under an implied undertaking to exercise for the safety of their customer's goods was ordinary care, only. If the article be lost by "theft, fire, or otherwise, notwithstanding the exercise of ordinary care, the loss falls on the owner of the goods, and not on the workman. If the loss be due to the want of ordinary care, then it falls on the workman. 1 Bouv. Inst. § 1007. The burden of showing negligence is on him who alleges it. It was the duty of the plaintiff to show, affirmatively, conduct on the part of the defendants that amounted to a breach of the implied undertaking to use ordinary care for the safety of the boiler left with them for repairs; and, failing in this, the court was right in taking the case from the jury. The evidence showed that the boiler was stored in a building used for the storage of engines and boilers belonging to the defendants, and cared for in the same manner that their own property of the same kind was cared for. The effect of this evidence was not to prove, but to disprove, negligence. The only item of evidence from which it is alleged negligence could be found was that no watchman was employed at the storage building during the night to protect it from incendiary fires. Whether this was required There by ordinary care, did not appear. was no proof of the practice of other persons engaged in the same business; no testimony, by machinists or other iron workers, that ordinary care required that such buildings and such articles should be guarded at night by a private watchman, to protect them from fire. It is very plain that ordinary diligence or care is that measure of care and diligence ordinarily employed in a given business. What measure of care is ordinarily employed, is a question to be determined from the evidence. When this is determined, the next question is whether the defendant has exercised the proper measure of care in the case under consideration. If he has not done what is usually done by persons following his occupation, for the safety of his customer's goods, but has neglected precautions commonly made use of for that purpose, then he may justly be called on to make good his customer's loss. But if he has stored and cared for his customer's goods in the same manner that he has stored and cared for his own, and a common disaster destroys both, it ought to require clear proof of the omission of precautions commonly taken by other persons, in the same or similar trades, to justify a recovery. Upon the whole case, as it stood when the plaintiff closed his testimony, there was not such evidence before the court and jury as to justify a verdict for the plaintiff, and for this reason the nonsuit was properly entered. The judgment was right, though the reason was wrong. The judgment is affirmed. MYERS v. LEBANON MUT. INS. CO. OF JONESTOWN. (Supreme Court of Pennsylvania. July 19, INSURANCE-TRUTH OF APPLICATION-EVIDENCE- 1. To the question in an application for insurance, "What proportion of the value of the property will remain uninsured after this policy is issued?" the applicant stated that "The building alone cost $13,000." Held, that the answer is not proven to be untrue, so as to invalidate the policy, by the mere fact that the building was only worth $6,000 at the date of insurance. 2. The soliciting agent of an insurance company is not made the agent of the insured by inserting in the policy a stipulation to that effect, so as to render the insured chargeable with errors of such agent in preparing the application. Appeal from court of common pleas, Northumberland county. Action on a policy of insurance by David C. Myers against the Lebanon Mutual Insurance Company of Jonestown, Pa. Plaintiff had judgment, and defendant appeals. Affirmed. J. P. S. Gobin, W. H. Hackenberg, and Capp & Schock, for appellant. C. G. Voris, for appellee. WILLIAMS, J. The plaintiff sues on a policy of insurance against loss by fire. The defense set up is, in substance, that the policy was obtained by means of misrepresentations, and is for that reason not binding on the company. The misrepresentation is alleged to be in the answer to question No. 13 in the application on which the policy was issued. The question is, "What proportion of the value of the property will remain uninsured after this policy is issued?" The answer written into the application by the soliciting agent of the company, and signed by the applicant, is, "The building alone cost $13,000." There was a stipulation in the application that the answers should be warranties of the truth of the facts stated in them. The proofs show that! the house was worth at the time of the fire not more than $6,000, and the company asserts that the answer to No. 13 amounted to a fraudulent over-estimate of the value of the building at the time the insurance was applied for. To this the plaintiff replies that the answer complained of did not relate to the value of the house at the time it was insured, or at any time, but to its cost at the time of its erection, and that in so far as it may be thought to be evasive or misleading, this effect is due to the omission by the agent of the company of part of the answer orally made to the question when it was read to him by the agent at the time the insurance was applied for. He further alleges that the omission was not known to him at the time he signed the application, and did not come to his notice until after the loss occurred. The answer, as he says it was made, was, "I have been informed by different parties that the house cost about $13,000, and I think it is now worth about $7,000." The first question is over the effect of the written answer upon the plaintiff's right to recover. It is evident that it is not responsive. If a responsive answer was deemed important for the information of the company, in order to enable its officers to determine whether to accept or refuse the application, it should have been returned, in order that the needed answer might be given. was not returned, but the risk was accepted upon the answer appearing in the application. What does the appellee assert in this answer? That the cost of the building was It that sum for it, but that the cost to the builder who caused its erection was $13,000. The truth of this statement is warranted by the stipulation in the application. If the original cost of the house was as stated, there is no falsehood in the answer, and the warranty of its truth is not broken. We find no evidence in this case, as presented to us, that the house cost less than the answer asserts; and, as the onus of proof to show its falsehood is on him who asserts it, the answer must stand until its untruth is shown. If the cost of the house is truly stated, the company has nothing of which to complain, for, waiving its right to a responsive answer to its question, it issued its policy on the answer appearing in the application, and it can only ask that the answer it accepted be true. As this is not seriously questioned, we see no reason why the plaintiff was not entitled to recover upon the case, as it stood before his offer was made to show the answer actually given by him to the agent of the company. The remaining question, whether the offer was admissible, is therefore not necessary to the decision of the case. As the question is, however, fairly raised on the record, it is enough to say that it is ruled by Eilenberger v. Insurance Cc., S9 Pa. St. 464. The insured did not become a member of the company until the policy was actually issued. In the negotiations preceding, and resulting in, the policy, the company is represented by the soliciting agent; and, as said in the case just cited, the company cannot escape the consequences of the fraud or mistake of its agent by inserting in its policy a stipulation that such agent shall be deemed the agent of the insured, without putting the insured on his guard in advance of the negotiations. Whether any notice, though given in advance, can relieve a party from the conse-, quences of his own or his agent's fraud or mistake, by which a contract was secured that would not otherwise have been made, is more than doubtful, but need not now be determined. The question thus presented is not whether the terms of a written contract may be varied by oral testimony, but whether an omitted statement may be supplied when the paper from which it was supplied was prepared by the other party to the contract, and signed by the person to be affected, without reading the paper, or having heard it read. Such conduct may show great confidence in the person with whom one is dealing, or want of care on his own part in informing himself of the exact character of the paper signed; but, as against the party by whom the fraud or mistake was committed, it does not estop the too careless or too trustful party from alleging the truth. Under the view we have taken of this case, it was not necessary to enter upon this line of proof, but it was not error to do so. The judgment is affirmed. COMMONWEALTH v. CROSSMIRE. (Supreme Court of Pennsylvania. July 19, 1893.) JURORS-COMPETENCY-HOMICIDE-EVIDence. 1. Where, in a murder case, it appears from the examination of a juror on his voir dire that he has the ability and disposition to render a verdict on the evidence alone, he is competent, though it will require evidence to change an impression formed from what he has read. 2. A physician, after describing the injuries on the body of deceased, was properly allowed to express his opinion as to what caused her death, and how the injuries on her person were inflicted. 3. Witnesses were properly allowed to testify that defendant showed to them a peculiar grip, by which he claimed that he could easily "shut anybody's wind off;" it appearing that such grip was the same as described by the doctor in explaining how deceased was strangled, and how the bruises on her head and neck were made. 4. It was proper to show that defendant had made threats against deceased. 5. It was proper to show that on one occasion defendant had made an assault on deceased, which left its marks on her person. 6. It could be shown that a while before her death he sought to obtain an insurance on her life without her knowledge. 7. Evidence of a physician that spots on defendant's overalls were blood spots was properly admitted. Appeal from court of oyer and terminer, McKean county; T. A. Morrison, Judge. Ralph Crossmire was convicted of murder, and appeals. Affirmed. Eugene Mullin and T. F. Mullin, for appellant. J. W. Bouton, Dist. Atty., and P. R. Cotter, for the Commonwealth. MCCOLLUM, J. Ralph Crossmire, the appellant, was accused and convicted in the court of oyer and terminer of McKean county of having, on the night of the 19th of November last, murdered his mother, Lucetta Crossmire. That the conviction was fully justified by the evidence is not denied, but it is claimed that the learned judge of the court below erred in passing upon the qualifications of certain jurors who were challenged for cause, and in his rulings upon certain offers of evidence which were object-❘ ed to by the appellant. It is also claimed that the charge was inadequate, because it did not define voluntary manslaughter, or refer in detail to the testimony of the defense. The first and second specifications of error call in question the qualification of Jurors Paul and Brennan, who, upon the appellant's challenge for cause, were examined on their voir dire as to the opinions they had formed respecting the guilt or innocence of the accused. It appears from this examination that the jurors had impressions or opinions on the subject, based on what they had heard and read about the murder, but the opinions thus formed were not deliberate and fixed opinions, or such as would prevent a just decision of the case upon the evidence. It is true that some of the questions addressed to the jurors elicited answers which, if standing alone and unexplained, might disqualify them. But their competency was not determined by a single answer. It was ascertained, and properly so, from the examination as a whole. Clark v. Com., 123 Pa. St. 555, 16 Atl. Rep. 795. Opinions formed as above stated are not disqualifying if they do not deny to legal evidence its legitimate effect. Intelligent men receive impressions as to the nature and character of any transaction from what they hear and read of it, and it is not unusual to speak of these as opinions. If the mere existence of such opinions constituted a bar to the performance of jury duty by the persons entertaining them, it would be well nigh impossible in the judicial investigation of a murder to draw from a panel composed of sober, in telligent, and judicious persons of the county the name of a person qualified to serve as a juror. Hence, if from the examination of the juror it appears that he has the ability and disposition to render a verdict on the evidence alone, the law adjudges him to be competent, notwithstanding it would require evidence to change the impression or opinions formed from what he had heard or read about the affair under investigation. In Allison v. Com., 99 Pa. St. 17, we said: "Impressions formed by the mind necessarily remain until something occurs to remove them. This is a law of our nature, and cannot be changed by human agency. That evidence would be required to change these impressions has but little weight. Such must always be the fact, even in cases of slight impressions or loose opinions. An opinion once formed necessarily exists until something else changes it." In O'Mara v. Com., 75 Pa. St. 424, Juror Tingley said he had an opinion formed from what he had read of the murder, and, unless the defendants satisfied him by evidence that he had a wrong opinion, he should still hold to it; but he expressed the belief that he could decide the case on the evidence, uninfluenced by that opinion, and he was held qualified. We might cite many cases from our own Reports to the same effect, but we do not deem it necessary to do so. It is enough to say of them that in our judgment they sustain the ruling of the court below upon the challenges in question. While Juror Paul was not as positive and emphatic as Juror Brennan was in the expression of a belief in his ability to decide the case upon the evidence alone, his examination justified the conclusion of the learned court below that he was competent. It is proper to add that, in reviewing the decision of the court below upon a challenge for such cause as is alleged in this case, nothing short of palpable error in it will justify a reversal of it. The obvious reason for this is that, as the examination was in the presence and under the control of the trial judge, he had better opportunity for discovering the nature and strength of the alleged disqualifying opinion than a printed report of the juror's testimony affords. It was not error to permit Dr. Freeman, after he had described the injuries found on the body of the deceased, to state what, in his opinion, caused her death, and how the injuries upon her person were inflicted. Nor are we able to discover any error in the admission of the evidence of Ferris and Bukwith in relation to the peculiar grip which the appellant showed to them, and by which he claimed he could easily "shut anybody's wind off." It appears that the grip thus shown was the same as the grip described by Freeman in explaining how the deceased was strangled, and how the bruises on her head and neck were made. That there was such a grip known to the appellant was a circumstance for the consideration of the jury, in connection with the testimony of Freeman in relation to the cause of death. It was certainly competent for the commonwealth to show that the appellant had made threats against the deceased; that he bad frequently quarreled with her; that on one occasion he made an assault upon her, which left its marks on her person; and that in April or May before her death he sought, but failed, to obtain an insurance on her life without her knowledge. This was a species of evidence appropriate to the issue, and it needs no citation of authority to support the rulings under which it was admitted. We cannot see how the appellant was prejudiced by the offers made in the presence and hearing of the jury, and fully sustained by the evidence given under them, or by the offer which the evidence failed to sustain, when such evidence was formally withdrawn from the jury. But this is a matter which rests largely in the discretion of the trial court, and its exercise of the discretion will not be reviewed except in a case of abuse. There is no evidence of such abuse on this record. The evidence of Will Cornelius as to the tracks in the snow of Mark street, or in reference to the identity of the person he met on the night of the murder, and of Dr. Freeman in relation to blood spots on the overalls of the appellant, was properly received. It was relevant, and the weight to be given to it was for the jury. It remains to inquire whether there was error in the charge. In considering this complaint we note first that all the points submitted by the appellant's counsel were affirmed. The instructions as to the degrees of murder were full and clear, and the duty of the jury, in case they found the defendant guilty, to find and state the degree in their verdict was sufficiently explained. There was no evidence to reduce the homicide to manslaughter, and there was therefore no error in the omission of instructions with reference to it. Brown v. Com., 76 Pa. St. 339; McMeen v. Com., 114 Pa. St. 305, 9 Atl. Rep. 878; and Clark v. Com., supra. The reference to the testimony was impartial and adequate, and the appellant has no just cause to complain of the instruction in regard to evidence of good character. The specifications are overruled. The judgment is affirmed, and it is ordered that the record be remitted to the court below for the purpose of execution. In re DONER. Appeal of EPPLEY. (Supreme Court of Pennsylvania. July 19, 1893.) GUARDIANS-LIABILITY OF SURETIES. Where a guardian has qualified, and taken possession of the ward's property, it is no defense to the liability of his sureties that his appointment was made in violation of Act March 29, 1832, providing that no executor or administrator shall be appointed guardian of a minor having an interest in the estate under the care of such executor or administrator. Appeal from orphans' court, Cumberland county; John Stewart, Judge. To the final account of William M. Doner, as guardian, Samuel Eppley, one of his sureties, excepted, and, from the decree overruling the exceptions, exceptor appeals. Affirmed. John Hays, for appellant. R. M. Henderson and M. C. Herman, for appellee. WILLIAMS, J. The appellant was surety upon the bond of William M. Doner, guardian of Annie L. Doner. His principal, after being cited so to do, settled his account as guardian, and a balance of about $1,600 was found in his hands. The appellant excepted to this account and the balance found due thereon, on the ground that his principal, at the time of his appointment as guardian, was one of the administrators of the estate of his ward's father. The appointment was made in violation of the act of March 29, 1832, which distinctly declares that no executor or administrator shall be appointed, by the orphans' court, guardian of a minor having an interest in the estate under the care of such executor or administrator. The position of the appellant is that the appointment was for this reason void, and the bond given for the faithful discharge of his duties as guardian by the appointee was invalid, and is now incapable of enforcement. There can be no doubt that the appointment was in violation of law. It ought never to have been made, and we have no doubt that, if the facts had been brought to the attention of the orphans' court, it would not have been made; but William M. Doner, by reason of this illegal appointment, secured the possession of the infant's estate, and gave bond. with sureties, (one of whom is the appellant,) to account for the estate of his ward so far as it should come to his hands. He was liable to be removed at any time by the revocation of his appointment and the ap pointment of a person in his stead, who was legally competent to act; but upon such removal he would be bound to turn over the estate of his ward to his successor, and the orphans' court could compel him to do so. He would be liable, also, for his acts done as guardian while acting under his appointment, not only to his ward, but to all persons interested; and such liability could be enforced in the same manner as though his appointment had been properly made. It is clear, therefore, that he was subject to the jurisdiction of the orphans' court, and was rightly cited to state and settle his account. For the balance due upon it he is liable in the same manner that any guardian is liable. He may be proceeded against personally, or upon his bond; and his sureties will be liable for the balance remaining in the |