the factory burned, then it affirmatively appears. . . . the means of egress, in case of fire or that the owner is relieved from the liability im- other disaster, is not sufficient or in accordance posed by the Act of June 3, 1885, and the ver- with all the requirements of law. . . he shall dict should be for the defendant. notify the proprietor of such factory ... to make the alterations or additions necessary within sixty days.

2. If the jury believe that the factory inspector, in accordance with section 12 of Act of May 2, 1889 (page 245), found that the means of egress in case of fire was sufficient, then the verdict must be for the defendant.

3. Defendant is not liable for the act of the tenant in locking the door, and if the jury believe this was the proximate cause of the injury the verdict must be for the defendant.

These points were all refused. (Fifth, sixth and seventh assignments of error.) And the Court charged that there must be a verdict for the plaintiff and left to the jury the question of damages only. Verdict for plaintiff $500 and judgment thereon. The defendant took this appeal, and filed assignments of error as above indicated.

David W. Sellers, (with him Leon H. Folz and David Jay Myers), for appellant.

factory

The gravamen of this action is that defendant did not have a fire escape-that is, a means of escape from the factory in case of fire. It was this requisite which the factory inspector was obliged to require. Under the Act of 1889, if existing constructions for egress were not sufficient in the judgment of the inspector, he had the right to require an alteration. No saving was made of any structure approved by a local board under previous Acts. If, therefore, it was sufficient to him, it was sufficient in law. As the Act of 1889 fully supplied the needs of egress, it must necessarily be substitutionary of the requirements of the Act of 1885.

B. & L. Association v. B. & L. Association, 159 Pa. 308.

The testimony of the factory inspector should therefore have been admitted.

By the Act of June 11, 1879, P. L. 128, it was enacted that "every shall be provided with a permanent, safe, exter-shall be provided with a tower fire escape, enBy Act of June 8, 1893, P. L. 373, factories nal means of escape therefrom in case of fire;" closed in incombustible material, adjoining one . . and (section 2) it was made the duty of the board of fire commissioners . . . . to first and taken as a fire escape under the Act of June of its fronts. . . . Such fire escape shall be held examine and test such fire escape, and after, up

on trial, said fire escape should prove satisfactory 30, 1885."

Inasmuch as the plaintiff had no common law

shall grant a certificate approving said fire escape.... By a supplementary Act of right to have a fire escape constructed according June 3, 1885, P. L. 65, it is provided "and the to any specific model, the whole subject was board of fire commissioners . within the legislative power. It could have been . . . shall have withdrawn or modified as an imposed statutory the right to designate the location of the chains burden and duty. When, therefore, the Legisla or ropes or such other appliances in conformity ture provided that such an escape shall be held with this Act to be attached to any building, and taken as a fire escape under the Act of June .. and shall grant certificates of approval to 2, 1885," the case of the defendant was inevery person . . complying with the recluded. quirements of this Act, which certificates shall relieve the party . . . . to whom the same shall be issued from the liabilities, fines, damages, and imprisonment imposed by this Act."

City v. Hays, 93 Pa. 72, 1880.

The damage recoverable under the Act of 1885 must be that attributable to the want of a fire escape. Here the injury arose from the locking of the door, for which the defendant was not responsible.

James M. Beck, (William F. Harrity with him), for appellee.

The defendant had no such certificate, but he had constructed tower fire escapes for which, owing to his ignorance of the law, a certificate of approval had not been issued, but which were approved as to kind and model in 1893 by the same board which had the power to do so in A fire escape to conform to the law must be 1891. The law in substance was fully complied such a one as is provided by the Act of 1885, with if, in fact, there was a permanent external and must have received the approval of the means of escape. If an owner neglected to bureau of fire escapes. The Act of 1889 does secure a formal approval, it was yet open to him not repeal the Act of 1885 as to the requirement to show that he had constructed and in use a fire of such approval, the factory inspector is to inescape which would have received a certificate |spect and compel compliance with the Act of of approval.

By the Act of May 20, 1889, P. L. 245, it is provided by section 12:

"That if the inspector of factories find that

1885.

The appellant suggests finally, that the locking of the door by the tenant was the proximate cause of the accident, and plaintiff cannot there

fore recover. The Act, however, fixes the proximate cause, and the learned Judge's charge is the best vindication of his position.

"This is not a common law action of negligence, but a statutory liability. To compel compliance with the penal provisions of the Act, it is provided that the owner who shall neglect to have complied 'shall be liable to a fine,

and in case of fire. . . . the person shall be liable in an action for damages in case of death or personal injuries being caused in consequence of such fire.' The want of the escape, the fire, and the injury in escaping are the constituent elements of the right to recover."

subject to the inspection and approval of the proper authorities."

What then is the effect of a failure to obtain such approval? The Act of 1879 made it the duty of fire commissioners and other officials to examine and test fire escapes (the design and construction not being prescribed by the Act), and if found satisfactory to grant a certificate of approval. The next section imposed certain penalties and liabilities for failure to comply with the Act, which will be discussed later on. The effect of the failure to get a certificate of approval was thus left undefined. In the second Act of 1885, P. L. 70, however, the provision for a certificate of approval was substantially reenacted, and it was expressly added, "thereby reMarch 11, 1895. MITCHELL, J. The learned lieving the party to whom such certificate is issued Judge directed a verdict for plaintiff, leaving to from the liabilities of fines, damages, and imprisonthe jury only the amount of damages, on the ment imposed by this Act." The effect of this view that the statute required the construction of clause does not admit of doubt. The certificate a fire escape in exact conformity to the method of approval is conclusive evidence of non-liabiland details prescribed, or in case of any variance, ity under the Act, but it is not a mandatory rethe approval of the proper municipal authorities quirement, and its absence creates no liability that as a mandatory requirement, the absence of would not otherwise arise from the facts. It is which would create a liability to any person in- evidence only, and the sole effect of its absence jured in consequence of a fire in the building is to put on the owner the burden of proof that irrespective of any questions of negligence or proximate cause. The statute will not bear so severe a construction.

he has complied with section first by building a fire escape in accordance with its directions, or under the proviso has made a permanent, safe, external escape which is substantially equivalent.

The Act of June 11, 1879, P. L. 128, required certain buildings to be provided with "a perma- It follows that the evidence offered tending to nent, safe, external means of escape therefrom in show the erection of a proper and sufficient escase of fire," leaving the determination of the cape, as permitted by the proviso to section first means to be adopted to the individual owners, of the Act of 1885 should have been admitted. subject to the examination and approval of the The evidence of the certificate offered in the fire commissioners or other proper officials. A first assignment was not admissible, not for the supplement was passed June 1, 1883, P. L. 50, reasons on which it was excluded, but because and an amendment to the supplement on June it was not of the required rank as the best evi3, 1885, P. L. 65, neither of which is material to the present case. On the same day, however, The officer who issued the certificate would as this last Act, June 3, 1885, P. L. 68, was have been a competent witness as an expert, but passed an amendment to the Act of 1879, which his certificate is only admissible by force of the was the statutory law in force at the time of this statute, and that extends only to certificates given accident. This Act prescribes in great detail the on examination and test before the happening of nature and mode of construction of the external the fire. The second, third and fourth assignfire escape required, but also has a proviso ments of error are sustained.

dence.

that "nothing herein contained shall prohibit The seventh assignment must also be susany person from selecting and erecting tained. The defendant's third point should any other and different device, design or instru- have been affirmed. Section 3 of the Act of 1885 ment, being a permanent, safe, external means gives the right of action in these words, "every of escape, subject to the inspection and approval person. . . . neglecting or refusing to comply of the constituted authorities for that purpose." with the requirements of section one, in erecting The result of this Act with its proviso is that said fire escapes shall be liable to a fine," and be while a design and mode of construction of fire deemed guilty of a misdemeanor, etc. "And in escape are prescribed which if followed will case of fire occurring in any of said buildings in absolutely exempt the owners from the penalties the absence of such fire escape, approved by cerand liabilities of the Act, yet he is left at liberty tificate of said officials, the said person or corto erect one of a different kind at his own will poration shall be liable in an action for damages but at his own risk that it shall prove "perma- in case of death or personal injuries sustained in nent, safe, and external," and that it shall be consequence of such fire breaking out in said

building.

and such action for damages July, '94, 12.

January 14, 1895.

may be maintained by any person now author- Smith, Kline & French Company v. ized by law to sue, as in other cases of similar injuries." The construction that this raises an

Smith.

Fraud Rescission-Affidavit of defence-
Statement under Act of 1887.

Even if it be conceded that, in the absence of any con. fidential relation between the parties or peculiar means of knowledge on the part of the purchaser, false and fraudulent representations as to the market price of a commodity would not avoid the contract (though no Pennsylvania case has gone so far) the rule is not to be extended.

But an explicit, circumstantial mis-statement of a fact, the falsehood of which he could not reasonably detect, conducing and intended to influence the vendor's action, such as that a rival dealer had offered the purchaser the same goods at a specified price, is fraud, and will justify the rescission of the contract.

General averments as to breaches of agreement not to cut prices, etc., not averred explicitly enough to enable it to be determined whether they were conditions or inducements of the sale or mere promises as to future action are not available as matter of defence in an affidavit,

absolute liability for all injuries on the happening Vendor and vendee-False representations— of a fire, whether the absence of a fire escape had any connection with such injuries or not, would make the owner responsible for results of which his act was not the cause, or as in the present case, for acts of another over which he had no control. A construction which would make the law of such doubtful constitutionality should not be adopted unless the language renders it imperative. There is no such compulsion here. The last clause of the section quoted, that actions "may be maintained by any person now authorized to sue, as in other cases of similar injuries," shows clearly that what the Legislature had in mind was the large and well known class of actions for death and injuries caused by negligence. This Act added another to that class. The failure to build a fire escape was made an act of negligence for which a liability attached to the owner, but as in other cases of the same class, a liability only to those injured in consequence of such negligence. There could be no better illustration of the wisdom and justice of this view than the present case. The undisputed testimony is that the fire escape was safe, sufficient and effective when it was once reached. All the people on the fourth floor escaped by it uninjured. The difficulty was in the locking of the door that led to it on the third floor. The plaintiff got to this door in time, and had it been open as it should have been, she could have escaped without injury as did the others who came to it, some of them after she did. The only proximate and effective cause of the injury was Plaintiff filed the following statement :the locking of the door, and that according to "The Smith, Kline & French Company, the the testimony of Taylor, the boss weaver, was said plaintiff, by its attorney, Lewin W. Barrindone by him at the order of his employers the ger, complains of Rebecca M. Smith, the said tenants. It was not the act of the defendant, or defendant, as follows:of any over whom he had control or for whose ac- "On the thirty-first day of August, 1892, at tions he was responsible. The statute does not the County of Philadelphia, the said plaintiff, at make him liable except for the consequences of the special instance and request of the said dehis own act, and there was no evidence on which the jury should have been permitted to find that plaintiff's injuries were the result of anything defendant did or omitted. Judgment reversed.

H. B.

The main requirement of a statement under the Act of 1887 is to secure to the defendant clear and exact inform ation as to what is claimed of him. A common count in the old form without a bill of particulars would be demurrable for vagueness, but using the general form with the insertion of the exact dates, amounts, and particulars of the contract sued on with no irrelevant or impertinent matter could hardly be objectionable for furnishing too

much information instead of too little.

Appeal of Rebecca M. Smith, defendant, from the judgment of the Common Pleas No. 4, of Philadelphia County, in favor of plaintiff, the Smith, Kline & French Co., for want of a sufficient affidavit of defence.

fendant bargained for and agreed to buy of the said defendant one hundred gross of boxes of Mrs. R. M. Hunter's Invisible Powder, upon the following terms, to wit: that such powder should be delivered by the said defendant to the said plaintiff at such time within one year from August 31, 1892, as delivery thereof should be requested by the said plaintiff, and that the said plaintiff should pay the said defendant for the said powder at the rate of twelve dollars per gross of boxes, with a discount of two per centum off of the said price for a payment upon the delivery of the said powder, and thereupon in consideration of the premises, and also in consideration that the said plaintiff, at the like spe

cial instance and request of the said defendant, said plaintiff at the times and in the manner had then and there undertaken and promised the aforesaid. said defendant to take the said powder within the said year, and to pay the said defendant for the same at the said rate, the said defendant undertook and then and there promised the said plaintiff that she would deliver the said powder to the said plaintiff at the time and in the manner aforesaid.

"At once after the making of the said contract, one hundred gross of boxes of said powder were delivered by the said defendant to the said plaintiff and accepted and paid for by the said plaintiff.

"On the said March 1, 1893, and until the commencement of this action, the said plaintiff "On the twenty-ninth day of August, 1893, was ready and willing to accept a delivery of the within one year from the said August 31, 1892, remaining one hundred gross of boxes of said at the county aforesaid, the said plaintiff re- powder bought by it as aforesaid, and to pay the quested the said defendant to make delivery of said defendant for the same, at the rate aforethe said powder to it, the said plaintiff, and the said, whereof the said defendant then and there said plaintiff was at the said time and until the had notice, but the said defendant, not regarding commencement of this action, ready and willing her said promise and undertaking, did not nor to accept a delivery of said powder, and to pay would then, or at any time since, deliver the the said defendant for the same, at the rate afore- said one hundred gross of boxes of said powder said, whereof the said defendant then and there to the said plaintiff, but on the contrary thereof had notice, but the said defendant, not regarding the said defendant has hitherto wholly refused her said promise and undertaking, did not, nor and still refuses so to do. would then, or at any time since, deliver the said powder to the said plaintiff, but on the contrary thereof the said defendant has hitherto wholly refused and still refuses so to do.

"On the said first day of March, 1893, at the county aforesaid, the market value of the said one hundred gross of boxes of the said powder was sixteen hundred and sixty-six dollars, and "On the said twenty-ninth day of August, the price under the contract aforesaid was eleven 1893, at the county aforesaid, the market value hundred and thirty-eight dollars, whereby the of the said one hundred gross of boxes of the said plaintiff was damaged by the refusal of the said powder was sixteen hundred and sixty-six said defendant to deliver the said powder as dollars, and the price under the contract afore- aforesaid to the amount of five hundred and said was eleven hundred and seventy-six dollars, twenty-eight dollars. whereby the said plaintiff was damaged by the refusal of the said defendant to deliver the said powder as aforesaid to the amount of four hundred and ninety dollars.

"There is therefore now due and owing by the said defendant to the said plaintiff the sum of one thousand and eighteen dollars, with interest on $490 thereof from August 29, 1893, and on the balance thereof from March 1, 1893. "Wherefore the said plaintiff brings this suit." [Affidavit.]

Defendant's affidavit of defence was as follows:

:-

"Rebecca M. Smith, being duly sworn according to law, deposes and says that she is a married woman, and the defendant in the above case, and that she has a full, just and complete defence to the whole of the plaintiffs' claim of the following nature and character :

:

"On the twenty-ninth day of September, 1892, at the county aforesaid, the said plaintiff, at the special instance and request of the said defendant bargained for and agreed to buy of the said defendant two hundred gross of boxes of Mrs. R. M. Hunter's Invisible Powder, upon the following terms, to wit: that one hundred gross of boxes of such powder should be delivered by the said defendant to the said plaintiff at once after the said purchase, and the remaining one hundred gross of boxes of such powder should be delivered by the said defendant to the said plaintiff on March 1, 1893, and that the said "That on August 31, 1892, and September plaintiff should pay the said defendant for the 29, 1892, the time of the making of the consaid powder at the rate of eleven dollars and tracts set out in plaintiffs' statement there were thirty-eight cents per gross, net cash, and there- two persons engaged in making 'R. M. Hunter's upon in consideration of the premises and also in Invisible Powder,' viz, deponent and one consideration that the said plaintiff, at the like Charles M. Hooper, each of whom was in that special instance and request of the said defendant, business as competitors as was well known to had then and there undertaken and promised the plaintiffs. On August 31, 1892, one L. E. Heyer, said defendant to take the said powder at the who was the purchasing agent of plaintiffs, and said times, and to pay the said defendant for the who was the only person with whom defendant same at the said rate, the said defendant under- had any dealing in relation to the subject matter took and then and there promised the said plain- of this suit, stated to defendant that plaintiffs detiff that she would deliver the said powder to the sired to purchase from defendant one hundred

gross of boxes of said powder, but that said ment entered for $1067.59. Defendant appealed, Charles M. Hooper had offered to sell the same assigning as error the action of the Court in ento plaintiffs for $12 per gross and that plaintiffs tering judgment. would give defendant the order if she would sell them at the same price as said Hooper, to wit, $12 per gross. Believing that said statement was true, and in reliance thereupon, defendant made the contract of August 31, 1892, as sued upon. In point of fact said statement was false and untrue and was wholly a malicious lie of said Heyer intentionally and wickedly made for the purpose of cheating and defrauding defendant into selling said powder far below its market price.