Volume 304 — Pennsylvania State Reports

Attention is called to the part of the act beginning with “All civil actions arising,” etc., “if the plaintiff has had the damages repaired,” etc., then follows, “or said action may be brought,” etc., evidently relating to civil actions only: Cowanshannock Poor Dist. v. County, 31 Pa. Superior Ct. 386.

<p>The trial judge erred in permitting plaintiff to testify under objection that his earnings as a school teacher would have been increased $400 a year had it not been for his injuries.</p> <p>The court did not err in its charge on pain and suffering : Wallace v. Penna. Co., 219 Pa. 327.</p> <p>It was not error for the court to charge the jury that there could be an award for permanent injuries in the instant case: Pink v. Sheldon Axle & Spring Co., 270 Pa. 476; Davis v. Davis, 80 Pa. Superior Ct. 343; Tracey v. Coal & Iron Co., 270 Pa. 65; Zukowsky v. Coal & Iron Co., 270 Pa. 118.</p> <p>It was not error for the court to fail to charge as to the duty of plaintiff to submit to a surgical operation in the instant case.</p>

Time being of the essence of the contract, and plaintiff having defaulted in performance at the time required, plaintiff’s deposit was ipso facto foxffeited as liquidated damages in accordance with the texmxs of the contract: Doughty v. Cooney, 266 Pa. 337; Mansfield v. Redding, 269 Pa. 357; Vito v. Birkel, 209 Pa. 206.

<p>Ambiguities in insurance policies must be construed in favor of tbe insured and against tbe insurer: Northern Central Trust Co. v. Ins. Co., 53 Pa. Superior Ct. 425; Francis v. Ins. Co., 243 Pa. 380; Brams v. Ins. Co., 299 Pa. 11; McMaster v. Ins. Co., 183 U. S. 25; Anthony v. Grier, 57 Pa. Superior Ct. 320.</p> <p>Appellant’s acceptance of a premium for six months’ coverage, coupled with its failure to specify a term of less than six months, necessarily implies an intention to cover the insured for the full period of six months: McGuire v. Ins. Co., 94 Pa. Superior Ct. 457; McDonough v. Ins. Co., 85 Pa. Superior Ct. 63; Mills v. Ins. Co., 57 Pa. Superior Ct. 483.</p>

No tax is payable under the agreements: Honeymann’s Est., 98 N. J. Eq. 638; McCormick’s Est., 15 Pa. C. C. R. 621. Should it so happen that this court comes to the conclusion that a transfer inheritance tax is payable, then appellant claims that the tax should be assessed only on the value of the several annuities payable to the decedent.

<p>Plaintiff’s amended statement of claim shows that no negligence of defendant or of Rust Engineering Company was the proximate cause of his injury: Kosson v. Power Co., 293 Pa. 131.</p> <p>The court properly refused to open the judgment and permit plaintiff to file the second amended statement of claim: Miller v. Merritt, 211 Pa. 127; Painter v. Pittsburgh, 46 Pa. 213; Colleoni v. Canal Co., 274 Pa. 319.</p>

<p>Plaintiff failed to show that the explosion in Kinloch Mine was caused by defendant’s negligence; in fact, failed to show what caused the explosion.</p> <p>On the contrary, the undisputed testimony shows the explosion could not have originated as claimed by plaintiff.</p> <p>Defendant was not bound to foresee the remote possibility that carbon monoxide might escape from the Kin-loch Mine, spread throughout the intervening Valley Camp Mine and enter the Boyd Mine, and therefore was not under a duty to notify the Boyd Mines of danger unforeseeable by the defendant: Rugart v. Baking Co., 277 Pa. 408; Kosson v. Power Co., 293 Pa. 131; Hoag v. R. R., 85 Pa. 293; Fitzpatrick v. Penfield, 267 Pa. 564.</p>