[2] As to the contention of the appellant that a demand ought to have been made upon

by the appellee before an action could be
maintained against it to recover them, noth-
ing more need be said than that, as they were
unliquidated, the case is within the rule that
the action is itself a sufficient demand. The
other questions raised by the appellant are
sufficiently answered in the opinion of the
learned court below overruling defendant's
motion for a new trial.
Judgment affirmed.

tions, but where it is to be made is left to the direction of county officials. A sidewalk for pedestrians, especially children, is as necessary it for the payment of the damages claimed in a village as is a roadway for vehicles and animals. Particularly is this true since the advent of motor vehicles. The term "sidewalk" is used to designate the portion of a highway which has been set apart for pedestrians as distinguished from what is used by vehicles. Graham v. Lea, 48 Minn. 201, 50 N. W. 1108. So that counties have the power under the act of 1895 to lay sidewalks along roads improved by them, where the same are necessary for the convenience and accommodation of the public. When, therefore, the county of Allegheny took over the township road upon which the plaintiff was injured, as admittedly was done long prior to the accident, it assumed entire responsibility for every part of the road. And, besides, every other agency was expressly prevented from interfering with the road in any COMMONWEALTH ex rel. ROWAND, Dist. way. It appeared in evidence that this boardAtty., v. FRIEBERTSHAUSER. walk was built by Union township, in which the road is located, under a contract with the (Supreme Court of Pennsylvania. Jan. 4, 1919.) county commissioners, and that the county contributed part of the money. The county of- 1. STATUTES 121(7)—SUBJECT AND TITLEficials wisely took the precaution to insert in the contract a clause of indemnity against accidents. But the county could not, by such an agreement, shift its statutory responsibility to another party. Hence Union township could not construct and maintain a boardwalk along the road. If it did so, with the consent of the county officials, it was simply acting as the agent of the county, and the latter was not thereby relieved of liability to a stranger.

DOG LICENSES-PROCEEDS OF TAX.

Title to Act July 11, 1917 (P. L. 818), being sufficiently comprehensive to give notice of intent to deal with taxing or licensing dogs, which repeals existing laws, required no express mention of a provision for a different disposition of dog taxes collected under the existing law and on hand at the time of its passage; that being one of the incidents of its enforcement.

We do not think the reasons assigned for a new trial are sufficient to warrant us in granting the motion. Exceptions were taken to the remarks of plaintiff's counsel at the trial. We did not think at the time that they justified the withdrawal of a juror. It is argued that the remarks tended to inflame the jury, but we think the verdict is a sufficient answer to that proposition. The plaintiff did suffer quite severe injuries, and under the testimony submit-ways germane to the title. ted by her the verdict is not at all excessive. Besides, the court admittedly gave the jury proper instructions upon the subject of damages, and none of the rights of the defendant appear to have been disregarded.

2. STATUTES 121(7)-SUBJECT AND TITLE— REPEAL.

Act July 11, 1917 (P. L. 818), complete in itself and intended to create a new system of licensing dogs and the disposition of taxes, need not contain in its title notice of intention to repeal earlier laws on the same subject, as such repeal on the same general subject is al

Argued before BROWN, C. J., and STEWART, MOSCHZISKER, WALLING, SIMPSON, and FOX, JJ.

Appeal from Court of Common Pleas, Allegheny County.

Mandamus by the Commonwealth, on the relation of Harry H. Rowand, District Attorney of Allegheny County, for the use of School District of the Borough of West Homestead, and other school districts in said

Richard W. Martin and Lee C. Beatty, Co. county similarly interested, to compel EdSol., both of Pittsburgh, for appellant.

Ralph P. Tannehill and Rody P. & Meredith R. Marshall, all of Pittsburgh, for appellee.

PER CURIAM. [1] When this case was tried and finally disposed of in the court be

low, Clark v. Allegheny County, 260 Pa. 199,

103 Atl. 552, had not been argued before us. What we there decided is conclusive of the correctness of the view of the learned trial judge that the duty rested upon the county to keep the Banksville road in proper repair.

ward D. Friebertshauser, Treasurer of the County of Allegheny, to pay dog taxes collected during 1917 to the school district. From a judgment sustaining relator's demurrer to return of an alternative writ of mandamus, defendant appeals. Reversed.

Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and FOX, JJ. Richard W. Martin and Lee C. Beatty, County Solicitor, both of Pittsburgh, for appellant.

Ralph C. Davis and Davis & Bode, all of Pittsburgh, for appellee.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

FRAZER, J. Edward D. Friebertshauser, [ment thereof by the proper county to the owntreasurer of Allegheny county, appeals from an order sustaining a demurrer by the relator to a return of an alternative writ of mandamus, and entering judgment against defendant directing him to pay over to the

CRAWFORD v. TRAVELERS' INS. CO.,
HARTFORD, CONN.

(Supreme Court of Pennsylvania. Jan. 4, 1919.)
1. APPEAL AND ERROR 1058(1)-ACCIDENT
INSURANCE-PROOF OF LOSS-EVIDEnce.

In action on accident policy, exclusion of affidavits attached to proof of loss to show that insured was engaged in a hazardous occupation was not prejudicial error, where insurer assumed the burden of showing that he was engaged in a more hazardous occupation than that covered by his policy, and such affidavits contained no statements inconsistent with testimony of defendant's witnesses.

2. INSURANCE 668(13) — ACCIDENT INSURANCE-CHANGE OF OCCUPATION-QUESTION FOR JURY.

In action on a policy of accident insurance issued to one classed as a general bookkeeper, held on the evidence that whether, at time of his injury, he had changed his occupation or was engaged in an act pertaining to a more hazardous occupation, such as a lumberman, foreman, or overseer, swamper, or road builder, was for the jury.

icy, furnished proofs of death, which included the affidavits of two eyewitnesses to the accident; but defendant refused to pay the principal sum of $5,000 named in the contract of insurance, alleging these affidavits showed that, at the time of the accident, the insured had changed his occupation from that of bookkeeper to the more hazardous one of "a lumberman in woods," or that, if there had not been a permanent change of occupation, he at least was then occupied as a "foreman or overseer in woods," or "swamper or road builder." The premium paid would entitle the beneficiary to only $2,000 if insured was occupied as a foreman ployed as a swamper or road builder. Deor overseer, and to but $1,000 if he was emfendant offered to settle on the basis of

$2,000 with accumulations, but this was re

fused. Plaintiff sued to recover the full amount, and obtained a verdict therefor; whereupon defendant moved for judgment non obstante veredicto, and, failing this, entered the present appeal.

The first two assignments complain that the trial judge erred in refusing defendant's Appeal from Court of Common Pleas, Al- of loss; the next two, of the refusal to inoffer of the affidavits attached to the proofs legheny County.

1. That the verdict for the plaintiff should be in the sum of $1,188.

2. That the verdict for the plaintiff should be in the sum of $2,970.40.

Verdict and judgment for plaintiff for $5,

940.

Errors assigned were (1, 2) rulings on evidence excluding affidavits attached to proofs of loss, (3, 4) answers to points, quoting them as stated above, and (5) in refusing the motion for judgment n. o. v.

struct the jury that plaintiff could not recover the full amount claimed, and must be restricted to one of the smaller sums designated in the policy; the fifth, that error was committed in not entering judgment for defendant n. o. V.

[1] Plaintiff proved her case by offering in evidence certain portions of her statement

of claim, "either admitted or not denied in others an averment to the effect that she had defendant's affidavit of defense"-among furnished "good and sufficient proofs of death," which was expressly conceded in the affidavit. Defendant then assumed the bur

den of proving, either that the insured had changed his occupation from that of “general bookkeeper" to one more hazardous, or had received his fatal injuries while temporarily doing an act pertaining to a more dangerous pursuit; and, for that purpose, it called to the stand an eyewitness of the casualty, named Burnworth, who had made one of the affidavits attached to the proofs of loss. While this witness was not interGordon Fisher, of Pittsburgh, for appel- rogated with respect to the statements conlant. tained in his affidavit, nor examined in full J. Charles Adams and James S. Crawford, as to the particulars of the accident, yet he both of Pittsburgh, for appellee.

Argued before BROWN, MOSCHZISKER, FRAZER, SIMPSON, and FOX, JJ.

C. J., and
WALLING,

MOSCHZISKER, J. Defendant company issued a policy insuring one John Crawford, Jr., under the classification of "general bookkeeper," against, inter alia, accidental death. Subsequently, while in a lumber camp, insured was killed by the fall of a tree. Decedent's mother, who is the plaintiff in this case and the beneficiary named in the pol

made no declaration upon the stand at variance with his prior deposition. At the close of Burnworth's testimony, the deposition in question was offered, "for the purpose of proving that the insured was, at the time of his death, engaged in a hazardous occupation." This offer was refused and exception granted defendant.

The insurance company next called P. W. Schaffer, one of the lumber gang present at

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

if consignee makes a diligent effort to unload shipments, a consignee is not liable for demurrage for not unloading ten cars of ore, where its frozen condition, and not the number of cars, caused the delay.

the time of the casualty, who testified that | prevent loading or unloading during free time Crawford was a bookkeeper in the lumber camp, that, on the day of his death, he came into the woods, and, for about ten minutes, assisted the men with their work; but the witness further said that, while the insured "just helped me for a few minutes," the lat-3. ter "was through helping" before the fall of the tree which caused his death, and was not then doing anything but "standing there waiting for me to get the blocks out."

Subsequently the court refused to admit the other affidavit attached to the proofs of loss, made by the second eyewitness, one Tressler. This affidavit, like the first, contains no statement inconsistent with the testimony already given by defendant's witnesses; it is in practical accord therewith. Under the circumstances, no harmful error was committed by the rulings complained of in the first two assignments.

WORDS AND PHRASES "SHIPMENT."

A "shipment" is a consignment as delivered by a railroad company, be it one car or a greater number of cars.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Shipment.]

Appeal from Court of Common Pleas, Allegheny County.

Case stated by the Pennsylvania Railroad Manufacturing Company. From a judgment Company against the Kittanning Iron & Steel for plaintiff, it appeals. Affirmed.

The plaintiff claimed demurrage charges in the sum of $4,029 under the provisions of the "Car Demurrage Rules."

Plaintiff called only one witness, the employer of the insured, who testified Crawford was a bookkeeper for his concern, and that it was no part of his duty to help in the ac- The plaintiff admitted that it was indebted tual work of the lumber camp; but this add-to the defendant for $2,612 of the amount ed nothing material to the case, so far as our present considerations are concerned.

claimed.

The demurrage rules contain the following provision in regard to high water:

"Rule 8. No demurrage shall be collected under these rules for detention of cars through

"When because of high water or snowdrifts, it is impossible to get to cars for loading or unloading during a prescribed time.

[2] The issues arising out of the evidence, as to whether or not the insured, at the time he was accidentally killed, had either changed to, or was then engaged in an act pertain-cases named below. ing to, an occupation more hazardous than that for which he was insured, were properly submitted to the jury (Scott v. Penna. Casualty Co., 240 Pa. 341, 87 Atl. 963) in a charge of which no complaint is made. We are not convinced the court below erred in refusing to instruct in accordance with the requests called to our attention by the third and fourth assignments, or, afterwards, in declining to enter judgment n. o. v., which is complained of in the fifth assignment.

All the specifications of error are overruled, and the judgment is affirmed.

PENNSYLVANIA R. CO. v. KITTANNING

IRON & STEEL MFG. CO.

"When shipments are frozen while in transit so as to prevent unloading during the prescribed

free time."

The facts appear in the opinions of the lower court, per Evans, J., which were as follows:

April 23, 1917.

controversy was a claim on the part of the rail[1] This is a case stated, and the subject in road company for demurrage on interstate shipments of ore to the defendant company on an interchange track at its works at Kittanning. The defense of the steel company divides the claim of the plaintiff into two classes: First, a claim amounting to $208, which was demurrage charges that accrued March 26, 27, and 28, 1917, and during those three days the above and below Kittanning to such an extent tracks of the railroad company were flooded that the operations of the railroad were suspended in the immediate vicinity of Kittanning. flooded, and there was no difficulty in the steel The interchange tracks, however, were not company getting to and from the interchange the railroad company could not during these track. It is claimed by the defendant that as three days have removed the cars from the interchange track, or in any manner made use of them, they cannot charge demurrage for the 100(1)-DEMURRAGE-CONDI- failure of the steel company to deliver them to

(Supreme Court of Pennsylvania. Jan. 4, 1919.) 1. CARRIERS 100(1)-DEMURRAGE-ACCESS TO TRACKS.

That tracks were so flooded as to entirely suspend a carrier's operations for a few days and prevent removal of its cars does not absolve a shipper from liability for demurrage during that time on account of cars located on an interchange track which was not flooded and to which it had access. 2. CARRIERS

TION OF SHIPMENT.

Under rule against collection of demurrage when shipments are frozen in transit so as to

the interchange track. To sustain such a contention would permit a shipper, whenever he was charged with demurrage for the detention

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