(113 A.)

in their paper books, but not assigned for er- | plumb line dropped to the point of the acci ror, may be disposed of, and final judgment dent; (3) that at the time of the accident a rendered, pursuant to authority of Act May man, who was standing on an intervening floor, 20, 1891 (P. L. 101, § 2; Pa. St. 1920, § 551), saw a half brick come down through the light without returning the record to the court below. well, followed by a whole brick; (4) that something was heard striking the deceased, who then 3. Pleading 377-Absence of defense affi- fell to the ground unconscious; (5) that at davit relieved plaintiff from proving that de- the place where the deceased had been struck fendant caused the death of her husband, but there was found a brick covered with blood, not from proving specific negligent act. and that blood was spattered upon other obIn view of Practice Act, May 14, 1915 (P.jects in the immediate locality. It was shown L. 483, § 13; Pa. St. 1920, § 17193), provid-on cross-examination of plaintiff's witnesses, ing that in trespass actions averments in state- that men, employed by others than the defendment of person committing act, if not denied, ant, were working in and about the building shall be deemed in issue unless expressly ad- at the time of the accident." mitted, in an action for the death of plaintiff's husband, caused by a falling brick while working on a building, the absence of an affidavit of defense relieved plaintiff from proving that defendant or his servants caused the brick to fall, or that defendant was in temporary possession of the building, or doing work thereon, but not from proving the specific negligent act.

Appeal from Court of Common Pleas, Philadelphia County; John M. Patterson, Judge.

Action by Gieuseppina Fleccia against ward Atkins for damages for the death of plaintiff's husband. Verdict for plaintiff, and defendant appeals. Judgment reversed, and judgment directed to be entered for defendant notwithstanding the verdict.

The evidence further shows that pieces of bricks and other materials were scattered over the various floors, and also that bricks were allowed to lie on the sills of windows facing the light well on different floors throughout the building.

The proofs as to the place from which the brick came merely fixed it between the third and the ninth floors, on which latter floor defendant's bricklayer was seen at work within the time above indicated. Under these Ed-circumstances we are forced to the conclusion that plaintiff failed to meet the burden the law imposes upon her to prove by satisfactory evidence, not only that defendant was in a position to have caused the injury, but also to exclude every other probable cause. We are unable to distinguish this case from Laven v. Moore, 211 Pa. 245, 60 Atl. 725, where a plumber's helper was injured by a falling brick while at work at an open hatchway on the second floor of a building. In John J. McDevitt, of Philadelphia, for ap- dropped from the fifth floor of the building, that case plaintiff's theory was that the brick pellee.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, SADLER, and SCHAFFER, JJ.

T. Raeburn White, of Philadelphia, for appellant.

where two employés of defendant were engaged in removing a scaffold previously used evidence to the effect that, while other workby bricklayers. Plaintiff there also offered men were engaged in various parts of the

FRAZER, J. Plaintiff's husband was employed as a laborer by a subcontractor engaged in the construction of a building at Tenth and Chestnut streets, Philadelphia. While employed in the light well of the build-building, none were working directly overing in unloading material from a wagon into the basement, a brick fell from one of the upper floors striking plaintiff's husband on the head and inflicting fatal injury. Defendant was the subcontractor for the brickwork, and plaintiff's contention is that the fall of

head at the time the accident happened. Notwithstanding this testimony this court held plaintiff failed to exclude other probable causes of his injury, as no evidence was produced to show what caused the brick to fall, nor the floor from which it came, or that there were, in fact, bricks at or near the place where the scaffold builders were workat the time, or that other floors or places from which it might have fallen were free

the brick was due to the carelessness of an
employé of defendant, who was working on
the ninth floor of the building near the lighting
shaft. The trial judge submitted the case to
the jury, a verdict was rendered for plaintiff,
and defendant appealed.

[1] The facts shown by plaintiff's testimony were stated by the trial judge in his charge, as follows:

"That the deceased was working on the ground at the bottom of a light well; (2) that one of defendant's bricklayers was seen working about an hour prior to and about 10 minutes after the accident on a scaffold on the ninth floor, and within an area of 5 feet of a

from such material. For these reasons the court distinguished the case from Booth v.

Dorsey, 208 Pa. 276, 57 Atl. 562, here relied upon by plaintiff, where it was shown that, while other workmen were engaged in different parts of the building none but defend ant's employés were engaged in handling bricks and at the very moment of the ac

cident

"were engaged in throwing bricks up on a platform from which, if carelessly or too forci

bly thrown, they might roll off and fall at or about where this one fell. Other evidence tended to show that there were no other persons in the part of the building from which the brick had come. In this way by showing that defendant's employés were in position to have caused the accident, and by the exclusion of any others a sufficient prima facie case was made out to go to the jury."

damages claimed, or their amount, need not be answered or denied, but shall be deemed to be put in issue in all cases unless expressly admitted."

While the absence of an affidavit of defense relieved plaintiff of the burden of proving that the person alleged to have caused the brick to fall was employed by defendant, or that the latter was in temporary posses

the Practice Act cannot be construed to admit the specific act of negligence, to wit, the careless act of permitting the brick to fall. The construction of the section of the act was discussed in the recent case of Flanigan v. McLean, 267 Pa. 553, 110 Atl. 370, where it was stated:

Although the distinction between Booth v.sion of the building and doing work thereon, Dorsey, on the one hand, and Laven v. Moore and the present case, on the other hand, is a narrow one, the difference is clearly defined. In the case first mentioned the testimony established that defendant's workmen were actually engaged at the exact moment the accident happened in passing bricks to a platform directly overhead, and from which a falling brick would strike a person in the position occupied by the injured workman. Here, as in Laven v. Moore, while it was shown defendant's employés were actually at work on the building, and at least one of them in a position from which he might have dropped the brick which fatally injured plaintiff's husband, there was nothing to show that at the moment of the accident they were actually handling bricks directly above the in requiring plaintiff to prove that defendThe trial judge, consequently, did not err part of the areaway in which plaintiff's hus-ant's workman caused the brick to fall. band was working, nor that other probable causes were eliminated.

[2, 3] Since the judgment must be reversed for the reasons stated above, a further ques

tion was raised at the trial of the case and discussed by counsel in their paper books, but not assigned for error, because ruled in favor of defendant, which we have decided to dispose of, and render a final judgment, pursuant to authority given by Act May 20, 1891 (P. L. 101, § 2; Pa. St. 1920, § 551), to enter such judgment, order or decree as we may deem proper and just without returning the record to the court below. Plaintiff's statement avers, inter alia, that defendant, by his agent or servant, "carelessly and negligently allowed or caused a brick or other hard substance to fall from the said building, striking the decedent and inflicting in and upon his body fatal injuries." At the trial plaintiff contended that defendant's failure to file an affidavit of defense was equivalent to an admission that the injury was caused by a brick dropped by defendant's workman, relying upon section 13 of the Practice Act of May 14, 1915 (P. L. 483; Pa. St. 1920, 8 17193), which provides that

"In actions of trespass the averments, in the statement, of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property or instrumentality involved, and all similar averments, if not denied, shall be taken to be admitted in accordance with section six; the averments of the other facts on which the plaintiff relies to establish liability, and averments relating to

of contradiction by affidavit of defense, to dis"The legislative intent was, in the absence pense with proof of certain formal averments as to the instrumentality or agency of the person, involved in the occurrence and charged with responsibility therefor-not to relieve a plaintiff from proving the vital averments of his declaration as to injury, negligence, damages," etc.

Inasmuch as plaintiff in this unfortunate case has failed to sustain the burden the law

casts upon her, the judgment is reversed, and judgment directed to be entered for defend

ant non obstante veredicto.

(270 Pa. 583)

COMMONWEALTH v. SMITH.

(Supreme Court of Pennsylvania. May 28, 1921.)

1. Criminal law 703-Refusal to withdraw juror for opening statement of district attorney held not error.

In a prosecution for murder of a male child born to defendant's wife two months after marriage, of which defendant denied paternity, court did not err in refusing defendant's request to withdraw a juror because district attorney stated in opening the case "that the child was so treated that the officers of the Society for the Prevention of Cruelty to Children death was accidental, although court later exwere called in"; defendant claiming that its

Icluded evidence thereof.

2. Criminal law 703-Conviction not set aside because district attorney accidentally refers to matters, evidence of which is excluded.

Conviction will not be set aside because, in outlining his case in good faith, the district attorney accidentally refers to some matter as to which the trial judge later excludes evidence.

(113 A.)

3. Criminal law 530 Written statement made while under arrest, admissible.

Where defendant upon being arrested made a written statement of an incriminating nature,

it was properly admitted in evidence, where it was shown by the commonwealth to have been voluntarily made without coercion or promise. 4. Witnesses 191-Letter to wife, given to third party, not confidential communication.

Where defendant delivered a letter to a third person, with request that it be delivered to defendant's wife, which was not done, it cannot be regarded as a confidential communication between husband and wife.

5. Criminal law 407(1)-Evidence of de

fendant's refusal to talk on advice of counsel admissible.

A captain of police, who was present and talked with accused when he made a written statement, was properly permitted to testify that later, when he sought further conversation with accused, the latter refused to talk on advice of counsel, and it was not improper to permit the district attorney to ask defendant on cross-examination who his counsel then

Appeal from Court of Oyer and Terminer, Bradford County; William Maxwell, Judge. Floyd Smith was convicted of murder in the first degree, and appeals. Affirmed.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

Stephen H. Smith and Joseph W. Beaman, both of Towanda, for appellant. William G. Schrier, of Athens, for the Commonwealth.

WALLING, J. On March 22, 1920, the wife of defendant, Floyd Smith, gave birth to a male child, called Francis Smith. They were then residing at Elmira, N. Y., and, as they had been married but two months, defendant denied the paternity of the child. On April 20, 1920, its dead body was found, partly covered by rocks, in the bed of a creek, near South Waverly in Bradford county, Pa. At the trial defendant admitted placing the child's body in the creek, and that he had caused its death, but claimed the latter was 6. Witnesses 277(1)-Latitude of cross-ex- accidental. He was convicted of murder of amination in discretion of trial judge. the first degree, and, from the sentence proThe latitude of cross-examination is large-nounced thereon, brought this appeal. ly in the discretion of the trial judge, and greater latitude is permissible in the crossexamination of parties than of other witnesses, and there was no such abuse thereof as calls for a reversal in permitting a district attorney to ask defendant what he meant by certain expressions in a letter to his wife, then in evidence.

was.

7. Criminal law 706-Question by district attorney held erroneous, but not error requiring mistrial.

It was improper, but not misconduct requiring the withdrawal of a juror, for the district attorney to ask defendant "Don't you know that is a miserable frame-up in your mind?" after defendant had just testified that before he made a written statement the district attorney had taken him to one side and practically promised him and his wife immunity if he would "tell the truth."

8. Criminal law 724(1)-Remark of district attorney held not to require discharge of jury.

In a prosecution for murder of a child, remark of district attorney to jury that under the evidence there was a willful killing, and its perpetrator "didn't have the heart of a man, or the soul of a man," held not so prejudicial as to demand a discharge of the jury and a continuance of the case.

9. Criminal law 1119(4)-Questions by district attorney not shown by the record on appeal to have been improper.

[1, 2] We have carefully examined the entire record, but find no cause for reversal. There was evidence that defendant had been unkind to the child, had tried to give it away, and had threatened its life. In that connection the district attorney stated in opening the case:

"That the child was so treated that the officers of the Society for the Prevention of cruelty to Children were called in."

Defendant's counsel objected to this statement, and unsuccessfully requested the withdrawal of a juror. When proof of such statement was offered it was excluded, but the trial judge finds the district attorney acted in good faith. It is not necessary to decide whether the proof offered was competent, for a conviction will not be set aside because in outlining his case in good faith the district attorney accidentally refers to some matter as to which the trial judge later excludes evidence (see Commonwealth v. Henderson, 242 Pa. 372, 89 Atl. 567); otherwise every offer of incompetent testimony made in the presence of the jury on part of the commonwealth might cause a mistrial.

[3] Defendant was arrested April 22, 1920, in Binghamton, N. Y., and thereupon made a written statement of an incriminating nature. This was properly admitted in eviOn appeal from a conviction in a criminal dence, as it was shown by the commonwealth case, it could not be said that it was improper to have been voluntarily made, without coerfor district attorney to ask, "Don't you supcion or promise.

pose he told the attorney about the whole mat

ter?" the context not being stated, and it be- [4] While in jail awaiting trial, defendant ing impossible to know to whom or what the wrote a letter to his wife, who was also question referred, or whether it was improper. confined in another part of the jail on the

and deny it. Had he failed to do so, it would have been a tacit admission that he promised the defendant immunity to secure a confession; hence it would be unjust to apply here the unwritten rule that precludes a lawyer from being a witness for his client.

same charge, which contains damaging state- [ him, and to take the witness stand, as he did, ments. Defendant handed the letter, unsealed, to a fellow prisoner, with a request to deliver it to the wife, which was not done. The trial judge properly admitted the letter as evidence for the commonwealth; it never came to the wife's possession, and therefore was not a piece of evidence furnished by her directly or indirectly. In which the case differs from Commonwealth v. Fisher, 221 Pa. 539, 70 Atl. 865. As the open letter was handed to a third party and never reached the wife, it cannot be regarded as a confidential communication between husband and wife. Hammons v. State, 73 Ark. 495, 84 S. W. 718, 68 L. R. A. 234, 108 Am. St. Rep. 66, 3 Ann. Cas. 912; People v. Dunnigan, 163 Mich. 349, 128 N. W. 180, 31 L. R. A. (N. S.) 940. It is not unlike the case of statements made by a husband to his wife in presence of a third party, and to which the latter may testify. 5 Chamberlayne on the Modern Law of Evidence, § 3699, p. 5294.

[8, 9] The defendant and his wife left Elmira with this child on the afternoon of April 16, 1920, and arrived in Waverly about dark, where they left the train, and as he states, walked south into Pennsylvania, intending to leave the infant on the porch of some farmhouse. They came to an earth road, it began to rain, and he testifies that the wife went back to the railroad waiting station, while he went on with the child, and, further, that as he approached a farmhouse he was set upon by a dog, and in running away, stumbled in the road and fell upon the babe, causing its death, and then, being frightened, placed it in the creek, with the stones upon it, as above stated. This story disagrees with his Binghamton statement, wherein he says the child was alive and crying when he left it in the creek. It disagrees with one statement he made that they had given the child to a young married couple, and with another statement that they had given it to a woman named Myrtle. An autopsy disclosed that the infant's head had been crushed on both sides, as if placed on a large rock and then violently struck with a smaller one; and further, that it was dead when placed in the creek. Defendant took with him that night a bundle of the child's clothes, which was found next day on a nearby freight car, with no mud or dirt upon it. This discredits the alleged fall with the babe and bundle in the wet dirt road. Moreover, it would be next to a physical impossibility for a man to fall forward, as he says he did, in a dirt road, while carrying an infant, so as to fracture both sides of its flexible skull. All the evidence points to the conclusion of a willful killing under such circumstances as seem to excuse the district attorney's remark to the

[5] Capt. Shay, of the Binghamton police department, was present and talked with defendant when he made the written statement, and we see nothing prejudicial in permitting the captain to testify that later, when he sought further conversation with defendant, the latter said he refused to talk on advice of counsel. That was a proper attitude for a defendant to take, and did no harm. Nor was it improper to permit the district attorney to ask the defendant upon cross-examination who his counsel then was. [6] The latitude of cross-examination is largely in the discretion of the trial judge; and there was no such abuse thereof as calls for a reversal in permitting the district attorney to ask defendant what he meant by certain expressions in the letter to his wife, as it was in evidence, and greater latitude is permissible in the cross-examination of parties than of other witnesses. In other words, when a letter, written by a party to the suit, is in evidence, it is not reversible error to permit him to be asked on cross-examination what he meant by certain doubtful expres-jury that under the evidence its perpetrator sions therein.

"didn't have the heart of a man, or the soul of a man." At least such remark under the facts did not demand a discharge of the jury and a continuance of the case. Complaint is also made that the district attorney said to the jury, "Don't you suppose he told the attorney about the whole matter?" As the context is not stated, it is impossible to know to whom or what the question referred, or whether it was improper.

[7] What is excusable conduct in a prosecuting attorney depends somewhat upon the surroundings and atmosphere of the trial. Here defendant had just testified that before he made the statement at Binghamton the district attorney had taken him to one side and practically promised him and his wife immunity if he would "tell the truth." It was then the district attorney asked, "Don't you know that is a miserable frame-up in As the verdict of the jury implies a findyour mind?" The question was improper, ing that the killing was willful and intentionand the trial judge promptly sustained anal, the defendant was not harmed by the disobjection to it, but it was not such glaring misconduct, under the circumstances, as required the withdrawal of a juror. It was natural for the district attorney to resent the

trict attorney's remark to the effect that involuntary manslaughter was a minor offense. The charge of the trial judge was fair and adequate, and the criticisms made to excerpts

(113 A.)

The assignments of error are all overruled, I ments when the plaintiff asked for judgment the judgment is affirmed, and the record is on the pleadings. ordered remitted for the purpose of execution.

sufficient.

7. Pleading

348-If no affidavit of defense is required, defects therein are immaterial. If no affidavit of defense to the averments of plaintiff's statement of claim dealing with alleged deposits of stocks and securities with defendant bank was required, the defects in defendant bank's answering averments are immaterial; plaintiff's declaration in its defective parts calling for no pleaded reply.

8. Pleading 152-Claim for trover and conversion demands no affidavit of defense.

Under Practice Act 1915 (P. L. 483; Pa. trover and conversion demands no affidavit of St. 1920, §§ 17181-17204), a claim in tort for

defense.

9. Judgment 18(2)-Declaration in action against bank for indebtedness and conversion of securities insufficient to support judgment.

Declaration of plaintiff, suing defendant bank for a claimed indebtedness by way of a money deposit and on account of the conversion of certain securities, held insufficient to support judgment for plaintiff.

Under Practice Act 1915 (P. L. 483; Pa. St. 1920, §§ 17181-17201), in an action against a bank to recover a claimed indebtedness, deAppeal from Court of Common Pleas, Carfendant's affidavit of defense beginning with the bald expression "denied," but immediately bon County; Laird H. Barber, Judge. afterwards entering into a detailed explanation Action by William J. Parry against the effectually controverting plaintiff's allegation First National Bank of Lansford. From that he had on deposit with defendant bank on order refusing to enter judgment for want of the particular date the sum claimed in his dec-sufficient affidavit of defense, plaintiff aplaration, was sufficient.

3. Pleading 152-Inherently defective statement of claim calls for no affidavit of defense in opposition.

A statement of claim which is inherently and materially insufficient calls for no affidavit of defense in opposition, and, though an affidavit filed is insufficient, the trial court does not err in refusing to enter judgment for plaintiff on the pleadings.

4. Pleading 348—Statement of claim must aver all essential facts to entitle to judgment for want of sufficient affidavit of defense.

To entitle one to judgment for want of sufficient affidavit of defense, his statement of claim must aver in clear and concise terms all facts essential to support the judgment asked, and the declaration be such that judgment may be taken and liquidated upon the data which it furnishes.

5. Pleading 348-Practice Act does not change rules relative to right to judgment for want of sufficient affidavit of defense.

The Practice Act 1915 (P. L. 483; Pa. St. 1920, 88 17181-17204), despite section 21, simply a general enabling provision to be read in connection with the rest of the act, does not change the rules relative to plaintiff's right to judgment for want of sufficient affidavit of defense.

peals. Order affirmed.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, SADLER, and SCHAFFER, JJ.

J. O. Ulrich, of Tamagna, for appellant.
Ben Branch, of Mauch Chunk, for appellee.

MOSCHZISKER, C. J. This is an appeal from an order refusing to enter judgment for want of a sufficient affidavit of defense.

Plaintiff claims $5,757.46, with interest, on six separate allegations of indebtedness, set forth in as many paragraphs of his declaration; the first of these being averred thus:

"(3) On December 4, 1918, plaintiff had on deposit, in cash, in the savings department, in the First National Bank of Lansford, Pa., the sum of $1,057.46."

The statement just quoted is followed by two other paragraphs, setting forth a demand by plaintiff for the return of the deposit and defendant's refusal. In answer, the affidavit of defense reads: