would be 16 inches from the step. ** cases to recover damages for death, although there must, of course, be affirmative proof of negligence before recovery can be had, it is not always essential that there be an eyewitness of the occurrence. The proof may In submitting the questions involved, the be furnished by the circumstances themtrial judge, inter alia, said: "From this evi- selves. The test is whether they are such dence, and the evidence as to the depth of as to satisfy reasonable and well-balanced the ashes, the form the ashes were left in, minds that the accident resulted from the and the shape of the steps on which decedent negligence of the defendant." Ferry v. Phila. stood when the accident occurred, the plain- Rapid Transit Co., 232 Pa. 403, 81 Atl. 426. tiff asks you to say that the ashes, piled up For other applications of this rule, see Mcas they were along the railroad, came in Manamon v. Hanover Township, 232 Pa. 439, contact with the feet of the decedent, and 81 Atl. 440; Tucker v. Pittsburgh, C., C. & pushed or dragged them from under him. St. L. Ry. Co., 227 Pa. 66, 75 Atl. 991; Phila. causing him to fall on the rail, thus causing & R. R. Co. v. Huber, 128 Pa. 63, 18 Atl. 334, his death. * If you are satisfied by 5 L. R. A. 439. The present case falls under a preponderance of the evidence that the the principle of these authorities. The strong accident was thus caused, there is another probability is that the accident occurred as question to be considered by you before you found by the jury, and no other reasonable can find for the plaintiff; and that is: Did theory upon which to account for it is sugthe decedent know, or did he have, with or-gested by the evidence. We conclude that the dinary prudence and under the circumstanc- court below committed no error in holding es, the means of knowing, the dangerous the evidence sufficient to support the verdict. character of this pile of ashes, if it was dan- [3] The piles of ashes presented a tempogerous, and that the presence of the ashes made the discharge of his duties more dan-rary danger incident to the place in which gerous? If you find that he knew it, or by the regular risks of his employment. Before Sheldon was employed, rather than one of the exercise of ordinary care and prudence the maxim, "volenti non fit injuria," can be of knowing and should have known the dan-invoked, it must be shown that the plaintiff gerous character of the ashes, he assumed the risk arising from the presence of the ashes, and therefore the plaintiff cannot reIf you find, however, that he had not that knowledge, and had not the means of obtaining that knowledge by the use of ordinary care and prudence under the circumstances, and further find that he met his death by the negligence of the defendant in placing and keeping those ashes where they were, without contributory negligence on the part of the decedent, it will then be your duty to consider the damages that plaintiff has sustained by reason of the death of her husband." under the circumstances he had the means cover. * * * [1] The defendant contends that the evidence was not sufficient to show that the ashes caused or contributed to Sheldon's death; that, if this is not so, then it was clear that Sheldon had notice of the danger, and it was one of the risks of his employment; and, lastly, that the fellow-servant rule would defeat a recovery. After a study of the evidence and a consideration of the authorities relied upon, we do not think any of these contentions can be sustained. [2] While no witness was able to give direct testimony describing exactly what happened at the precise time of decedent's fall to the ground, yet from the evidence of those who actually saw and knew the details, the facts stated by the court below could justifiably be found, and the jury could have reasonably concluded that Sheldon was in a position where his heel would come in contact with the ashes, and that this caused the accident which brought about his death. "In not only knew, or had full opportunity to know, the circumstances, but that he appreciated, or should have appreciated, the extent of the danger, and that he voluntarily exposed himself to it. "This makes the question of assumption of risk one of fact, unless from the nature of the case it is clear of dispute in this connection." Valjago v. Carnegie Steel Co., 226 Pa. 514, 519, 75 Atl. 728, 729. Although the decedent passed the point where he was killed just before the accident, and had been over it in the performance of his duties at other times, it is not clear that he was in a position to see and appreciate the danger presented. Particularly is this so when we consider the testimony of the defendant's witness Kane-its supervisor of tracks who had charge of the deposit of ashes in question-to the effect that so far as he could see they presented no danger. [4] This apparently was an instance where the risk was difficult to estimate, and under such circumstances the case was for the jury. "Where there is any doubt whether the employé was acquainted or should have been acquainted with the risk, the determination of the question is necessarily for the jury.” Rummell v. Dilworth, 111 Pa. 343, 351, 2 Atl. 355, 360. On this general subject see, also, Stewart v. Central R. R. of N. J., 235 Pa. 311, 84 Atl. 38. The words used by Chief Justice Sterrett in Vorhees v. Railway Co., 193 Pa. 115, 120, 44 Atl. 335, 336, "Whether from his experience, or from opportunities of examination afforded him before the time of the accident or otherwise, he knew, or ought to have known, the danger, were necessarily questions of fact for the jury," | services, and as evidence of our confidence are appropriate here. It only remains to be in your ability, we guarantee that your insaid that the fellow-servant rule has no ap- come from this work will be at least $5,000 plication to this case. by the end of a year.' PROOF. OF The burden is on plaintiff, seeking to show ratification of an unauthorized contract of employment, made by the president of a corporation, by the directors, to establish such fact. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 17261735, 1737, 1743, 1762; Dec. Dig. § 432.*] Appeal from Court of Common Pleas, Philadelphia County. Action by Charles M. De Forest against the Northwest Townsite Company. From an order making an absolute rule for judgment for want of sufficient affidavit of defense, defendant appeals. Reversed. Daniel F. Deal, the treasurer of the defendant, filed an affidavit of defense, which was as follows: "The by-laws of said corporation, a copy of which are hereunto annexed as Exhibit 1 of this affidavit of defense, provide, among other things, as follows: "'Article 2. "Board of Directors. "1. The business and affairs of the company shall be managed and controlled by a board of directors, three in number. "Article V. ""2. Subordinate Officers.-The board may appoint such other officers as it may deem necessary, who shall have such authority and shall perform such duties as, from time to time, may be prescribed by the board.' "4. Tenure of Officers, Removal.-All officers and agents, except the president, shall be subject to removal at any time by the affirmative vote of a majority of the whole board. The board may delegate the power of removal of subordinate officers and agents to the executive committee or to any officer. ""5. The President. The president shall be the chief executive officer of the company. He shall preside at all meetings of the stockholders and the board of directors. He shall have general charge of the business of the company, shall sign and execute all authoriz ed bonds, contracts or other obligations in the name of the company, and with the treasurer shall sign all certificates of stock of the company, he shall do and perform such other duties as from time to time may be assigned to him by the board.' "In and by said statement plaintiff avers "On the 14th of June, 1911, without the that on or about the 26th of May, 1911, the letter, Exhibit A, or its contents, as aforedefendant, through its president, George M. said, being communicated to the board of Bailey, made a proposal to the plaintiff, directors, I having no knowledge of its conwhich was accepted, offering to hire him for tents and being a member of the board of the term or period of one year from the directors and personally present at that 26th of May, 1911, a copy of said proposal time, the plaintiff was elected assistant treasand acceptance being annexed to his state-urer of the corporation defendant; a copy of ment as Exhibit A thereof; that in and by the minute electing him such treasurer being said proposal, reference thereunto being had, it will appear that the position of fiscal agent or assistant treasurer of this company was tendered to the said plaintiff, and his compensation provided for as follows: 'We will pay you an overwriting commission of 22 per cent. on all sales of stock above described effected by you and your agents. On the amount of treasury stock remaining unsold this commission would amount to more than $5,000. We will allow you a drawing account at the rate of $50 per week, if you wish, from the commencement of your work, and will credit your account with the 21⁄2 per cent. commission as fast as sales are made. In further consideration for your in the following language: 'Upon motion, duly seconded, Mr. William S. Reed was elected secretary of the company in place of Mr. Franklin Vreeland, resigned, and Mr. Charles M. De Forest was elected assistant treasurer under the provisions of article V, section 2, of the by-laws of the Northwest Townsite Company.' "Thereupon the said plaintiff accepted the position of assistant treasurer, to which he had been elected, and entered upon the performance of his duties. Immediately prior to the 1st of August, 1911, I learned of the existence of this contract contained in plaintiff's Exhibit A for the first time, and I thereupon informed the plaintiff that I was going to bring it to the attention of the board of directors for their action. The next meeting of the board of directors of the company was on August 1, 1911, and at that meeting I brought the matter to the attention of said board of directors, who thereupon disapproved of said contract. The minute in reference thereto being expressed in the following language: The matter of making advances to the stock selling force was then taken up and the letter of agreement between Mr. Charles M. De Forest and Mr. George M. Bailey, president of the company, was then read, and the entire matter disapproved of. Upon motion of Mr. John P. Whitney, seconded by Mr. Daniel F. Deal, a resolution was adopted authorizing Mr. Daniel F. Deal, vice president of the company, to secure the services of a competent attorney for the purpose of passing an opinion upon the legality of and how far the actions of the president in entering into this agreement with Mr. Charles M. De Forest without consulting the board of directors was binding on the company.' “At a meeting of the board of directors, held August 29, 1911, the following resolution was passed: 'Upon motion of Mr. Reynolds, seconded by Mr. Whitney, a resolution was passed declaring the office of as sistant treasurer now held by Mr. C. M. De Forest vacant, and the secretary instructed to notify Mr. De Forest of such resolution, also the banks and trust companies.' in accordance with this resolution the plaintiff was notified that he was removed from the office of assistant treasurer, and the office declared vacant. Deponent further says that plaintiff made sales of stock for account of the defendant, and from time to time rendered statements of account for the same, his commissions thereon amounting to $1,095.50, which have been paid to him; and the sales of stock so made by plaintiff was the only benefit conferred by the said plaintiff upon the said defendant, which has been accepted by it, and the same has been fully compensated for at the price and value which the plaintiff claimed and demanded. fore avers, that said contract, in any of its particulars, is not binding upon the corporation defendant, save and except only as it has accepted the benefits thereof, which benefits have been fully paid and satisfied, as is hereinbefore set forth. All of which deponent verily believes and expects to be able to prove on the trial of the cause." Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and STEWART, JJ. M. Hampton Todd, of Philadelphia, for appellant. H. D. Wescott, of Philadelphia, for appellee. the court below for want of a sufficient ELKIN, J. [1] Judgment was entered in affidavit of defense, and the question here is whether this was error. Suit was brought to recover an alleged balance claimed to be due on a guaranteed annual salary. The contract sued on was made by the president of the corporation without the authority of the board of directors. It is contended for the corporation that no liability attaches to it, because the contract was made without authority; while, on the other hand, the appellee here, who was a party to the contract, urges that, even if the contract was made without authority in the first instance, the board of directors assented to its terms by acquiescence and thus bound the corporation by ratification. There is no doubt that the board of directors had the power to And make the contract relied on to sustain this action; and, although that power may not have been exercised in a manner to make it binding on the corporation in the first instance, subsequent ratification may give it binding effect. Kelsey v. National Bank, 69 Pa. 426; Manhattan Hardware Co. v. Phalen, 128 Pa. 110, 18 Atl. 428; Wayne Title & Trust Co. v. Railway Company, 191 Pa. 90, 43 Atl. 135; Greensboro Gas Co. v. Oil & Gas Co., 222 Pa. 4, 70 Atl. 940, 128 Am. St. Rep. 790. We cannot agree with the argument of the learned counsel for appellant that upon the facts disclosed by this record the court should say, as a matter of law, that no liability attached to the defendant corporation under the contract upon which suit was brought. The president may have exceeded his authority, and no doubt did so; but the question still remains whether the board of directors accepted the services of appellee under the terms of that contract, and by failing to disavow it within a reasonable time acquiesced in the arrangement to such an extent as to operate as a ratification. Then again, who shall determine whether there was a ratification? Shall the court say, as a matter of law, that there was a ratification, or shall thís question be submitted to the jury under proper instructions? In some cases this question is for the court and in others for the jury. It depends upon the facts in each particular case. In the case at bar, we "Deponent further avers that the said George M. Bailey, president of the company, had no authority of any kind whatsoever to execute said agreement, Exhibit A of plaintiff's statement, so as to make the same binding upon the company defendant, except as provided in the by-laws hereinbefore referred to; and deponent is advised by counsel, verily believes, and therefore avers, that the said by-laws do not confer authority upon the said George M. Bailey, as president of the corporation defendant, to make the contract sued on, wherein and whereby, among other things, the defendant should be bound to guarantee to the plaintiff that his income from his work will be at least $5,000 by the end of the year. And he is by the pleadings, the court was not warrant- | and the material portion of one of them was ed in holding, as a matter of law, that there as follows: "For value received, I hereby was a ratification. The affidavit of defense transfer, assign and set over unto Holstein was sufficient to prevent judgment and to De Haven and his assigns all my right, title make it necessary for a trial upon the and interest in policy of insurance issued by merits. the Provident Life & Trust Companies of Philadelphia, No. 28,992, dated October 23, 1886, and all advantages to be derived, therefrom as a collateral security for indebtedness." The other material facts in the case appear by the opinion of the superior court. [2] We agree that ratification may be made by formal action, or by passive acquiescence; but in either event such facts must be established as will warrant the proper finding. In the present case the ratification relied on by appellee depends upon certain facts, and, as we view the record, these facts are for the jury. The burden will be on the plaintiff to show such acquiescence in, knowledge of, and adoption of, his services by the corporation as will warrant the jury, under instructions as to the law, in finding a ratification. Judgment reversed, and record remitted, in order that the case may be tried on its merits. OF PROPERTY. Where an insured assigns endowment policies as collateral security, and the indebtedness then existing is afterwards paid, the fact that the assignee continued to hold the policies until they became due and were paid does not prove that the assignment covered indebtedness created after the assignment; the assignee having the right to retain the policies until the premiums advanced by him have been paid. [Ed. Note. For other cases, see Insurance, Cent. Dig. & 492; Dec. Dig. § 222.*] Appeal from Orphans' Court, Philadelphia County. Argued before FELL, C. J., and MESTRE ZAT, POTTER, STEWART and MOSCHZISKER, JJ. Samuel W. Pennypacker and J. Whitaker Thompson, both of Philadelphia, for appellant. J. Claude Bedford, William N. Trinkle, Charles H. Downing, and John C. Bell, all of Philadelphia, for appellees. MESTREZAT, J. [1, 2] The single question raised by this appeal is whether the word "indebtedness" in the assignments of the two life insurance policies means an indebtedness existing at the time of the assignment, or also includes any future indebtedness that might be contracted and become due from Batley to De Haven. The learned auditing judge held that the assignment was intended to and did secure only a present existing indebtedness. The court in banc reversed the auditing judge, and held that the assignment is broad enough to include any present and future indebtedness. Batley assigned to De Haven the two life policies, each for $5,000, "as a collateral seWhatever may curity for indebtedness." have been the intention of the parties, the language of the assignment, standing alone, includes only an indebtedness existing at the date of the transfer of the policies. Instead of making the transfer "as a collateral security for indebtedness," if the parties intended it to cover future advances, as claimed by appellees, they could, and we think would, have said "collateral security for any future indebtedness." An assignment as collateral should be strictly construed, and, as thus interpreted, the language of the assignment in question does not disclose an intention to secure future advances. The circumstances and facts surrounding the transaction confirm the view that the policies were intended to secure an indebtedness existing at the time of the assignment. Batley was engaged for several years in exIn the matter of the estate of Holstein De tensive building operations, and De Haven Haven, deceased. From a decree sustaining was a conveyancer, manager of estates, and exceptions to the adjudication, Thomas Bat-real estate broker. They had dealings growley appeals. Reversed, with directions. From the record it appeared that on April 10, 1896, Thomas Batley assigned two endowment policies of insurance to the Provident Life & Trust Company to Holstein De Haven. The assignments were practically identical, ing out of Batley's business as a builder. De Haven advanced money and negotiated mortgages upon houses built by Batley. He stated an account running from May 24, 1891, to December 12, 1892, which shows receipts of money by him and payments of money made two mortgages were satisfied in 1902. It appears that Batley paid the premiums on the policies up till the date of the assignment, and thereafter they were paid by De Haven. The latter therefore had the right to retain the policies until these premiums were repaid him, which was not done until they were paid out of the proceeds of the policies collected by his executors. The fact that Batley did not have the policies reassigned to him does not conclude him as to his right to their proceeds, as it may well be that he was unable to raise the money to pay the premiums. He could not and did not object to the payment of one of the policies to the executors, as it required the amount to repay the premiums. That the mortgage indebtedness was of some years' standing is not sufficient to show that it was not intended to be secured by the assignment of the policies. The creditor had the right to take as many securities for the indebtedness as he could obtain from the debtor. His purpose in doing so is immaterial. The claimant having shown that the mortgage indebtedness existed at the date of the assignment, the burden was shifted to the executors to show any other indebtedness due from Batley, secured by the assignment. This burden was not met by the statement of June 28, 1901. to Batley. These all grew out of Batley's | not sustain the position. It is true that building operations. The balance shown by De Haven retained the policies after the the account, $7,500, was secured by mortgage. Batley retired from the building business in 1892. So far as appears, therefore, there was no occasion for the continuance of the same business relations between the two men. Batley gave De Haven a second mortgage on the same premises, in August, 1895, for $3,000. The assignment of the policies was made on April 10, 1896. In the meantime payments had been made on the mortgages, leaving, at the date of the assignment, a balance due of $8,000. It is conceded that this indebtedness was existing at the time of the assignment. There is no evidence in the case that would warrant the conclusion that Batley was otherwise indebted to De Haven at that time. The statement of June 28, 1901, does not show an indebtedness due De Haven at the date of the assignment. It is entirely insufficient for the purpose. The meaning of the statement is not clear. It purports to be a full settlement between the parties as to that date "as per book account." | The appellee contends that these words show there was an indebtedness outside of the mortgage debt; but we do not regard this as at all probable. There was no occasion at that time for what is technically called a "book account" between the parties. Subsequent to 1892, the dealings between the parties, so far as the evidence discloses, did not require a book account. Batley was no longer in the building business, and the only business he had with De Haven was a few small loans, which certainly would not be the subject of a book account, but would be evidenced in another and proper way. Aside from this, however, in view of De Haven's letter of December 23, 1892, the account is probably a statement of the balance due on the mortgage indebtedness. Payments were made at different times on the first mortgage before it was satisfied, and De Haven may have entered on his books the amounts and dates of the payments. At all events, there is nothing whatever to show that any part of the amount included in the sum due January 1, 1898, was an existing indebtedness, or even an indebtedness contemplated on April 10, 1896, when the insurance policies were assigned. So far as the evidence discloses, the mortgage debt was the only "indebtedness" due from Batley to De Haven at the date of the assignment, and there is nothing that leads to the conclusion that the assignment was not to secure that indebtedness; and, in the absence of the existence of any other debt due by Batley to De Haven at the time, it must be assumed that was the debt the collateral was intended to secure. [3] The facts suggested in the argument of the appellee as showing that the mortgage debt was not the indebtedness intended to be secured by the insurance policies do We are of the opinion that the language of the assignment and the circumstances and facts disclosed by the evidence show that the collateral was intended to secure only an indebtedness existing at the date of the assignment; that the mortgage debt was the only indebtedness existing at that time; and that the assignments were not made to protect a future or subsequent indebtedness. The decree of the court below is reversed; and it is ordered that the appellant receive the amount of the policies, less the premiums paid by De Haven thereon, diminished by the dividends received by him. HILL v. FETHEROLF. (Supreme Court of Pennsylvania. April 15, 1912.) 1. FOOD (§ 1*)-CITIES OF THE SECOND CLASS -MILK INSPECTION. An ordinance of a city of the second class authorizing the inspection of milk and meat, and prohibiting the sale of milk and meat and the licensing of persons dealing therein, which are impure or adulterated, and directing the appointment of a meat and milk inspector, is valid as an exercise of the police power of the city. [Ed. Note.-For other cases, see Food, Cent. Dig. § 1; Dec. Dig. § 1.*] 2. FOOD (§ 1*)-DAIRY PRODUCTS-INSPECTION-ORDINANCE. of milk and meats, and for the licensing of An ordinance providing for the inspection dealers therein, may properly provide that no license shall issue to sell the milk of any dairy |