The Supreme Court affirmed the judgment of the Common Pleas on March 2,1885, in the following opinion, per
Paxson, J.:There was technical error in overruling the objection to the question put to the witness Fretz. (See 1st assignment.) There was nothing in the case to show that the plaintiff was entitled to the notice referred to, or that it was the duty of the defendant to send it. The question was irrelevant; the answer was unimportant, and the result did no harm to any one. We do not reverse for such reasons.
The second assignment is not sustained. The books of the defendant company were not evidence against the plaintiff. They had, moreover, been used by the witness to refresh his recollection, and all that could have been shown by them was distinctly proved by the witness.
The third, fourth and fifth assignments are such a wide departure from the rules of Court, that we must decline to consider them. They allege errors in the chargé of the Court, but, instead of giving the language of the Court, they set forth the effect of the charge, or what the learned counsel understood by it. Rule XXIII requires that “when the error assigned is to the charge of the Court, or to answer to points and answers referred to, must be quoted totidem verbis in the specification.” We also call attention to Mr. Outerbridge’s notes on pages 37 and 38 of Rules of Court, where a number of eases are cited, showing the reason of the rule and the importance of observing it. Neither of the specifications are assigned in accordance with the rules. The points are set out, but the answers are not given, except by a reference to another page of .the paper-book. Both the point and the answer should appear in the assignment. As this departure is not so wide as the other, we will consider the- questions they involve.
By the defendant’s second point the Court was asked to instruct the jury “that the keeping and use of sulphur on the *241property was a violation of the express provisions of section XVII of the terms and conditions of the policy, and if sulphur was so kept and used on the property the plaintiff cannot now recoverto which point the learned Judge answered: “If the premises were used for the storing or keeping of sulphur, that is true. It is for the jury to say whether that has been established.” It is difficult to see any objection to this answer. The Court affirmed the defendants’ point if the jury found the facts of which it was predicated.
The defendant’s third and fourth points were correctly answered. The fact that the fumes of burning sulphur prevented the firemen from entering the building at the time of the fire had no significance if the plaintiff had the- right to use the building in the manner she was using it. In other words, if she had the right under the policy to keep sulphur there, it mattered not that the firemen were driven back by its fumes.- And the Court very properly said in answer to the fourth point, that if the manufacture of brooms increased the risk, the verdict should be for the defendants.
Judgment affirmed.