application to be allowed to invest the purchasemoney in other real estate. We will, however, in this instance treat the latter as surplusage, and as if the petition was simply for the sale of the real estate.

same to his wife and daughter Margaret for the petition, proceedings in their nature distinct and life of his wife, and upon her decease to his said independent. They should always be separated. daughter, so long as she remained single and One may be granted, the other refused. And unmarried; and, upon her marriage, to his said while additional labor may be required of counsel, daughter Margaret, and his daughter Eliza during this is preferable to probable confusion of the their life, but upon the decease of either, then record thus misleading other counsel and the one-half of said premises to his daughter Mary parties interested. It is of the utmost importance in common with the survivor during life. And that the record, the history of each case or proafter the death of his wife and daughters, ceeding should be intelligible and harmonious. testator ordered his executor to sell said real This petition is therefore defective in combining estate at public or private sale, and the proceeds with an application to sell decedent's real estate he disposed of amongst his children and grand-at private sale under the Act of 1853, a further children, as set forth particularly in the will; that the widow and daughters of testator are all living, and some of the latter have children who are still minors. That the owner of adjoining land is about to erect thereon a large mill or manufactory to be operated by steam and machinery which will greatly diminish the value of said premises, and it is therefore for the interest and advantage of those interested therein that the same should be sold. That he has offered to purchase said premises at private sale for $2600, which is more than can be obtained at a public sale. Wherefore petitioner prayed authority to sell said premises at private sale to said purchaser for the price mentioned, in fee simple, indefeasible by any party or persons having a present or expectant interest therein.

Petitioner further stated that in case said sale be authorized as aforesaid, it will be for the benefit of the persons interested to invest the purchase-money in other real estate to be held for the use of the same persons, and for the same estates as the premises so sold were held, under the will of testator. That said purchaser is the owner of a dwelling-house and lot of ground in said city, which he is ready and willing to sell and convey to petitioner for the price of $2600, which is a fair and reasonable price.

The petitioner, therefore, prayed authority to invest the purchase-money aforesaid, when received in the purchase of the last-mentioned premises, to be held for the same uses and estates as the premises first mentioned are held under the will of testator. That a citation may issue to the parties interested therein to show cause why the prayers of the petition should not be granted, and that a guardian ad litem be appointed for such of them as may be minors.

Samuel Gormley, for petitioner.

November 20, 1883. THE COURT. It is not good practice to embrace in one and the same

While the Act of 1853 provides that "if minors shall have no guardian, the Court shall appoint a guardian for them," it does not contemplate an appointment by the Court of its own volition without notice, but that the Court shall proceed in accordance with the usual practice where minors have no guardian, and their interests are to be affected. The course to be adopted is clearly pointed out in the Act of March 29, 1832 (Purdon, 1105, pl. 17), and should in all cases be pursued. The reason is apparent. The minors will not be bound by proceedings to which they are not made parties, and of which they have had no notice according to law. In Swain v. Fidelity Ins. Co. (4 P. F. Smith, 455), it is held that no Court has authority to appoint a guardian ad litem, without first giving notice to the minor or his next of kin, as provided by the Act of March 29, 1832. And a minor over fourteen years of age, on whom there has been no personal service of process, and for whom no guardian has been appointed, is not bound by a judgment in partition; he may avoid it on attaining full age. (Id.) For the reasons stated we must decline at present to appoint a guardian ad litem, but will grant the citation to the parties of full age, and direct notice to be given to the minors if above fourteen years of age, if not, to their next of kin, of the filing of the petition, and that they are required to appear on or before the return day of the citation, and apply for the appointment of a guardian to represent them, otherwise application will be made to the Court to appoint a guardian for them.

Citation granted.
Opinion by HANNA, P. J.

WEEKLY NOTES OF CASES.

VOL. XIV.] THURSDAY, DEC. 27, 1883. [No. 3.

Supreme Court.

Jan. '83, 137.

Jan. 31, 1883. Burkhard v. Travellers' Insurance Co.

Accident insurance - Construction of policy

Voluntary exposure to danger.

Ambiguous words in a policy of insurance will be held to have the meaning most favorable to the insured, the presumption being that he took the policy on this construction, and the company could have avoided the difficulty by being more specific.

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In an action by an administrator of an insured on a policy of accident insurance which excepted injuries caused by voluntary exposure to unnecessary danger, hazard, or perilous adventure" or by "walking or being on the road-bed or bridge of any railway," it appeared that the insured arose from his seat when the train came to a standstill on a drawbridge at night, went to the front platform, stepped off the car, and fell through a hole, caused by the removal of planks during repairs, and received fatal injuries therefrom; the company set up as a defence to the action a violation of the above conditions: Held, that the facts of the case did not show a voluntary exposure to danger; exposure to a hidden danger without any knowledge of it does not constitute voluntary

exposure.

Held further, that the intention of the restriction against walking or being on the road-bed or a bridge of a railway was not to guard against injuries resulting from a defective road-bed or bridge, but against danger of injury from trains passing thereon.

via the Ohio and Mississippi Railway. The train was stopped on the railway bridge across the Ohio by the opening of the drawbridge, and Burkhard rose from his seat, went to the front platform, stepped off it to the railway track, fell through a hole caused by the removal of some of the planks with a view to repairs, and received a fatal injury which caused his death.

The plaintiffs submitted, inter alia, certain points, which with the answers thereto were as follows:

1. Should your Honor believe from the evidence adduced, that plaintiff's decedent was half asleep or drowsy at the time of the accident, and that he was under the impression that he had arrived at the Louisville depot, his destination, and left the coach to see whether his surmises were correct, plaintiff is entitled to recover. Answer. I hold that it is not necessary to enter on the consideration of this, because I find that there is not sufficient evidence that the plaintiff was half asleep or drowsy at the time of the accident, or that he was under the impression that he had arrived at his destination, and left the car to see whether his surmises were correct.

6. Should you, however, believe from the evidence adduced that, when plaintiff's decedent left the car he had full control of his senses, and merely left the same because the train had stopped, as is customary for male passengers to do on long journeys, intending to return when notified by the railroad officials or engineer's whistle; that he was not told to remain in the car, and had no knowledge of the dangerous condition of the bridge, then it was not such a "voluntary exposure to unnecessary danger" as will excuse the defendants and relieve them from liability under the contract of insurance and the

Error to the Common Pleas No. 2, of Philadel-law applicable to this class of cases. Declined. phia County.

Debt, by Leonard Burkhard, Sr., administrator of Leonard Burkhard, Jr., deceased, against the Travellers' Insurance Company of Hartford, upon a policy or ticket of accidental insurance issued to Leonard Burkhard, Jr., the plaintiff's intestate, in the sum of $3000 for and during the term of thirty days from the date thereof.

The policy contained, inter alia, the following clause and condition :

"And no claim shall be made under this ticket when the death or injury may have been caused by voluntary exposure to unnecessary danger, hazard, or perilous adventure, or by walking or being on the road-bed or bridge of any railway."

The case was tried by agreement without a jury, before HARE, P. J., in accordance with the provisions of the Act of April 22, 1874, before whom the facts appeared to be as follows:

The deceased, Leonard Burkhard, Jr., was on his way through Indiana to Louisville, Kentucky,

The Court found for the defendant, saying, inter alia, as follows:

"The defendants would be liable were it not that the policy contains two clauses-one that the insured shall not voluntarily expose himself to danger; the other, that he shall not be on a railway track or bridge. Both these conditions were, in my opinion, broken by Leonard Burkhard. To leave a railway train in the obscurity of the night while it is standing on a railway track over a river is certainly an exposure to danger which, if not uncommon among the travelling community, is clearly voluntary' within the meaning of the policy, nor can there be a reasonable doubt that deceased violated the prohibition against being on the track or bridge, although his stay was momentary, and he fell immediately through into the river.

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"It was, indeed, contended that Burkhard had been asleep a short time previously, and might not have known what he was doing; but

clauses in the policy. One provides the insu- | of the act does not necessarily determine the morance shall not extend to a case of death or injury tive which prompted the action. The act may be caused by "voluntary exposure to unnecessary voluntary, yet the exposure involuntary. The danger;" the other that "walking, or being on the road-bed or bridge of any railway are hazards not contemplated or covered by this contract, and no sum will be paid for disability or loss of life in consequence of such exposure, or while thus exposed."

The insured was travelling by rail through Indiana on his way to Kentucky. The train stopped on the bridge across the Ohio River, by reason of the draw part of the bridge being open. He went to the front platform of the coach in which he was riding and stepped off and through a hole in the floor of the bridge causing his death; this hole was about three feet wide and four feet long. It was caused by the removal of some planks during the making of repairs.

1. Was this act of the insured a voluntary exposure to unnecessary danger?

danger being unknown, the injury is accidental. Accident is defined by Worcester to be an event proceeding from an unknown cause, or happening without the design of the agent; an unforseen event, incident, casualty, chance. And by Webster, an event that takes place without one's forethought or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected; chance, casualty, contingency.

In view of the unquestioned facts the death of the intestate was accidental. The danger was unknown. The injury was not designed. We think there was not such a voluntary exposure to danger as to fairly bring the act of the insured within the meaning of the exception.

2. Was he walking or being on the road-bed or bridge of the railway?

To make him guilty of the "voluntary expo- He certainly was not walking on the road-bed sure to danger," he must intentionally have done or bridge, and strictly speaking it is doubtful some act which reasonable and ordinary prudence whether he was being on either. The evidence would pronounce dangerous; the uncontradicted indicates that without touching either he probaevidence shows that several other passengers got bly passed directly from the steps of the car out of the coach, and some of them in advance through the hole in the bridge. We will not, of the insured; they certainly apprehended no however, put the case on the narrow ground danger. It is customary for male passengers to that he did not come in contact with either roadalight when a train stops for any length of time. bed or bridge. The language of the exception No notice was given to passengers that it was clearly implies two thoughts. One, that the indangerous to get out of the coach where it stood. sured must not be on the road-bed or bridge for any So far as appears, the bridge, with the exception length of time; the other, that the prohibition is of this hole, was well covered with plank and not to guard against injury resulting from a deentirely safe. When the intestate alighted other fective road-bed or defective railway bridge, but passengers were standing on the bridge near the against the danger of injury from trains passing brakeman; the latter was sitting on timber that thereon. If the design was to apply the language was lying on the footwalk of the bridge, and was to bridges defectively constructed or out of reto be used in the repairs being made; the pas-pair, it would not have been restricted to railway sengers had no knowledge of these repairs; the brakeman held his lantern so placed on the floor that another timber cast its shadow over the hole, making it impossible for the insured to see it; he could see that portion of the floor lighted by the lantern, and the passengers standing thereon; he could see the brakeman near them; he stepped out of the coach in plain sight of the brakeman; he had a right to suppose he could land on a floor as firm as that on which the others stood; neither word nor sight gave him any notice of danger; he did not approach the opening caused by the draw and was not injured thereby.

It is true he voluntarily left the car, but a clear distinction exists between a voluntary act and a voluntary exposure to danger. Hidden danger may exist, yet the exposure thereto without any knowledge of the danger does not constitute a voluntary exposure to it. The approach to an unknown and unexpected danger does not make the act a voluntary exposure thereto. The result

bridges. It would have included all bridges, both foot and wagon. The purpose is not to avoid liability for injuries resulting from being on bridges unsafe in themselves. The manifest intent is to exempt from responsibility for damages caused by collision with trains moving thereon.

The present is not like a case between a passenger and a railway company, in which the company may be exempt from liability for damages arising from negligence of the passenger, not voluntary. Nor did the act of the insured prove such a reckless exposure of his person, nor obvious risk of danger, as to bring him within the application of the rule declared in Morel v. Miss. Valley Ins. Co. (4 Bush. 535); Lovell v. Accident Ins. Co. (3 Ins. Law Jour. 877); Sawtelle v. Railway Pass. Ass. Co. (15 Blatchford, 216), and kindred cases.

We therefore think, under the facts found and the rules of law which we have stated, the learned Judge erred in holding that the conduct of the