
    Marlowe, Appellant, v. Hoosier Casualty Company.
    Argued April 17, 1934.
    Before Tbexleb, P. J., Kellee, Stadteeld, Pabkeb and James, JJ.
    
      
      A. R. Cingolani, and with him W. H. Martin, for appellant.
    
      J. Campbell Brandon, for appellee.
    October 3, 1934:
   Per Curiam,

The issues involved in the present appeal are in substance identical to those in the case of Marlowe v. Travelers Insurance Company recently decided by our Supreme Court, 313 Pa. 430, 169 A. 100, and practically the same testimony was produced. The trial judge in both cases read to the jury, with his affirmance, the following point:

“If from all the evidence the jury believes the plaintiff killed her husband then she cannot profit by her own wrong and is by such wrongful act barred from recovery in this case.”

In the present case an exception was taken to the affirmance of the point but in that before the Supreme Court none was noted. Nevertheless the Supreme Court held that as there was no evidence in the case warranting the submission of the question to the jury of whether Mrs. Marlowe had killed her husband the action of the court in this respect constituted fundamental error, citing various eases. There was no more warrant to sustain the point in the present case than in that. We are, therefore, required to follow the decision of the higher court and reverse the judgment.

The judgment of the court below in favor of the defendant is reversed and a new trial awarded.  