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LAW    LIBRA* * 


3  2044  078  461   647 


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HARVARD  LAW  LIBRARY 


ReceivedMAY    2  9    1920 


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PENNSYLVANIA 


STATE   REPORTS.   «• 


VOL.  264 


COMTAIHIMG 


CASES  DECIDED 


BY  THE 


Supreme  Court  of  $emw?Bumw, 

January  and  May  Terms,  1919 


£  REPORTED  BY 

ALBERT  B.  WEIMER, 

STATE  REPORTER. 


THE  GEO.  T.  BISEL  CO., 

PHILADELPHIA, 

1919. 


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Copyright,  1919. 

By  CTBUS  B.  WOODS,  Sbcrbtaky  of  the  Commonwealth, 

For  the  State  of  Pennsylvania. 


MAY  2  b  1920 


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JUSTICES 


Of  THE 


SUPREME  COURT  OF    PENNSYLVANIA 

DURING  THE  PERIOD  OF  THESE  REPORTS. 


Chief  Justice,    ...    J.  Hat  Brow*. 

Justice,    • 

,    .    John  Stewart. 

Justice,    .    . 

,    •    Robert  ton  Mosohosker. 

Justice,    . 

,    .    Robert  S.  Frazer. 

Justice,    •    , 

,    .    Emory  A.  Walling. 

Justice,    •    < 

,'< .    Alex.  Simpson,  Jr. 

Justice,    •    , 

.    John  W.  Kephart. 

ATTORNEY  GENERAL, 

Mil  Wu 

AdAU  Irwin  Schajpteb. 

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JUDGES 


OV  THX 


SUPERIOR  COURT  OF  PENNSYLVANIA 


DURING  THE  PERIOD  OF  THESE  REPORTS. 


President  Judge,    .    . 

•    .    George  B.  Orlady. 

Judge,    •    . 

.    .    William  D.  Porter. 

Judge,    .    • 

.    .    John  J.  Henderson. 

Judge,    .    • 

•    .    John  B.  Head. 

•Judge,    •    . 

•    .    John  W.  Eephart. 

Judge,    •    . 

•    .    Frank  M.  Trexler. 

Judge,    .    . 

•    •    J.  Henry  Williams. 

♦Judge,    .    . 

.    .    William  H.  Keller. 

*  Judge  Krphabt  was  elected  to  the  Supreme  Court,  November  5, 
1918,  and  Judge  Keller  was  appointed  to  fill  the  vacancy  thus 
created. 


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JUDGES  OF  THE  COURTS  BELOW 

DURING  THE  PERIOD  OF  THE8B  REPORTS. 

1st — Philadelphia  County. 

Courts  of  Common  Pleas. 

No.  1:  F.  Amedee  Bregy,  P.  J.;   John  M.  Patterson  and 
William  H.  Shoemaker,  JJ. 

No.  2:  Norris  S.  Barratt,  P.  J.;    Henry  N.  Wessel  and 

Joseph  P.  Koqers,  JJ. 
No.  3:  Charles  B.  McMichael,  P.  J.;  William  0.  Ferguson 

and  Howard  A.  Dayis,  J  J. 
No.  4:  Charles  Y.  Audenried,  P.  J.;  William  Wilkins  Oarb 

and  Thomas  D.  Finletter,  JJ. 
No.  5:  J.  Willis  Martin,  P.  J.;  William  H.  Staakb  and  John 

Monaghan,  J  J. 

Orphans'  Court. 
Joseph  F.  Lamorelle,  P.  J.,  Edward  A.  Anderson,  Charles 
Francis  Qummey,  John  M.  Gest  and  George  Henderson, 
JJ. 
2d — Lancaster  County. 

Court  of  Common  Pleas. 
Charles  I.  Landis,  P.  J.;  Aaron  B.  Hassler,  J. 

Orphans'  Court. 
Eugene  G.  Smith,  P.  J. 
8d — Northampton  County. 

Russell  C.  Stewart,  P.  J.;  William  M.  MoKeen,  J. 
4th— Tioga  County. 

Sevellon  F.  Channell,  P.  J. 
5th — Allegheny  County. 

Court  of  Common  Pleas. 
John  D.  Shafer,  P.  J.;  John  A.  Evans,  Marshall  Brown, 
James  B.  Maofarlane,  Thomas  J.  Ford,  Joseph  M.  Swear- 
ingen,  Thomas  D.  Carnahan,  Josiah  Cohen,  John  0.  Hay- 
maker, Ambrose  B.  Betj>,  J.  MoF.  Carpenter  and  Hfnry  G. 
Wasson,  J  J. 

00 


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vi  JUDGES  OP  THE  COURTS  BELOW. 

Orphan*'  Court. 

James  W.  Oyer,  P.  J.;  J.  J.  Miller  and  Thomas  P.  Trimble, 
JJ. 

6th— Erie  County. 

Uriah  P.  Kossitbr,  P.  J.;  Edward  L.  Whittslbby,  J. 
7th — Bucks  County. 

William  C.  Ryan,  P.  J. 
8th — Northumberland  County. 

Herbert  W.  Cummings,  P.  J.;  Fred  B.  Moser,  J. 
9th — Cumberland  County. 

Sylvester  B.  Sadler,  P.  J. 
10th — Westmoreland  County. 

Alex.  D.  McOonnell,  P.  J.;  Daniel  J.  Snyder,  J. 

Orphans'  Court. 

Charles  D.  Copeland,  P.  J. 
11th — Luzerne  County. 

Court  of  Common  Pleas. 

Henry  A.  Fuller,  P.  J.;  John  M.  Garman,  S.  J.  Strauss, 
P.  A.  O'Boyle  and  J.  B.  Woodward,  JJ. 

Orphans'  Court. 

Andrew  M.  Freas,  P.  J. 
12th — Dauphin  County. 

George  Kunkel,  P.  J. ;  Samuel  J.  M.  McCarrell,  J. 
13th — Greene  County. 

J.  W.  Ray,  P.  J. 
14th— Fayette  County. 

John  Q.  Van  Swearingrn,  P.  J.,  and  Edmund  H.  Reppert,  J. 

Orphans'  Court. 

James  C.  Work,  P.  J. 
15th — Chester  County. 

William  Butler,  Jr.,  P.  J.,  and  J.  Frank  E.  Hause,  J. 
16th — Somerset  County. 

Francis  J.  Kooser,  P.  J. 
17th — Union  County  and  Snyder  County. 

Albert  W.  Johnson,  P.  J. 
18th — Clarion  County. 

G.  G.  Sloan,  P.  J. 
19th— York  County. 

Nevin  M.  Wanner,  P.  J.;  N.  Sarobnt  Bobs,  J. 
20th— Huntingdon  County,  Mifflin  County  and  Bedford  County. 

Thomas  F.  Bailey,  P.  J. 


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JUDGES  OF  THE  COUBTS  BELOW.  vii 

Slst— Schuylkill  County. 

Court  of  Common  Plot, 
Harbt  O.  Beohtel,  P.  J.;  Biohard  H.  Koch  and  Charles  E. 
Bergbr,  JJ. 

Orphan**  Court. 
MaoHenry  Wilhelm,  P..  J, 
22d — Wayne  County. 

Alonzo  T.  Searle,  P.  J. 
23d— Berks  County. 

Court  of  Common  Pleas. 
Gustav  A.  Enduch,  P.  J.;  Geo.  W.  Wagner,  J. 

Orphan*'  Court. 

Harry  D.  Sohaeffer,  P.  J. 
24th— Blair  County. 

Thomas  J.  Baldrige,  P.  J. 
26th — Clinton  County,  Cameron  County  and  Elk  County. 

Robert  B.  McCormiok,  P.  J. 
26th — Columbia  County  and  Montour  County. 

John  G.  Harman,  P.  J. 
27th; — Washington  County. 

John  Add.  McIlyaine,  P.  J.;  James  I.  Brownson,  J. 
28th— Venango  County. 

George  S.  Griswell,  P.  J. 
29th — Lycoming  County. 

Harvey  W.  Whitehead,  P.  J. 
80th— Crawford  County. 

Thomas  J.  Prather,  P.  J. 
Slat— Lehigh  County. 

Clinton  A.  Groman,  P.  J. 
82d — Delaware  County. 

Isaac  Johnson,  P.  J.;  William  B.  Broomall,  J. 
83d — Armstrong  County. 

J.  W.  Ejnq,  P.  J. 
84th — Susquehanna  County. 

Andrew  B.  Smith,  P.  J. 
86th — Mercer  County. 

James  A.  MoLauqhrt,  P.  J. 
86th— Beaver  County. 

George  A.  Baldwin,  P.  J. 
874— Warren  County  and  Forest  County . 

Watson  D.  Hinckley,  P.  J. 
88th— Montgomery  County* 

Court  of  Common  Plea*. 
Aaron  S.  Swartz,  P.  J.;  John  Faber  Miller,  J. 


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yffl  JUDGES  OF  THE  COURTS  BBLOW. 

Orphans'  Court. 

William  F.  Solly,  P.  J. 
89th— Franklin  County. 

W.  Rush  Gillan,  P.  J. 
40th — Indiana  County. 

J.  N.  Lanqham,  P.  J. 
41st — Juniata  County  and  Perry  County. 

Jeremiah  N.  Keller,  P.  J. 
42d— Bradford  County. 

William  Maxwell,  P.  J. 
43d — Pike  County  and  Monroe  County. 

Samuel  E.  Shull,  P.  J. 
44th — Wyoming  County  and  Sullivan  County. 

Charlbs  E.  Terry,  P.  J. 
45th — Lackawanna  County. 

Court  of  Common  Plea*. 

Henry  M.  Edwards,  P.  J.;  Edward  0.  Nbwoomb  and  Jamjbi 
J.  O'Neill,  JJ. 

Orphan*'  Court 

M.  F.  Sando,  P.  J. 
46th— Clearfield  County. 

Singleton  Bell,  P.  J. 
47th — Cambria  County. 

Marun  B.  Stephens,  P.  J. ;  Francis  J.  O'Connor,  J. 
48th — McKean  County. 

Joseph  W.  Bouton,  P.  J. 
49th — Centre  County. 

Henry  C.  Quigley,  P.  J. 
50th— Butler  County. 

Aaron  E.  Reiber,  P.  J. 
51st — Adams  County  and  Fulton  County. 

Donald  P.  McPherson,  P.  J. 
52d — Lebanon  County. 

Charles  V.  Henry,  P.  J. 
63d— Lawrence  County. 

S.  Plummer  Emery,  P.  J. 
54th — Jefferson  County. 

Charles  Corbet.  P.  J. 
55th — Potter  County. 

Albert  S.  Heok,  P.  J. 
56th— Carbon  County. 

Laird  XL  Barber,  P.  J. 


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TABLE 

OF 

CASES  REPORTED  IN  THIS  VOLUME. 


Page 
Abbott's  Alderney  Dairies, 

Reibstein  v Negligence,    447 

Adams   Express   Co.,   La- 

mont  v Negligence, 17 

Aldine  Trust  Co.,  Shimer  v.     Equity,    444 

American       International 

Corp.,  Black  v Waters,   260 

American  Surety  Co.,  Du- 
quesne  Bond  Corp. 

v Attachment  Execution,  203 

of  N.  Y.  v.  Vandegrift 

Construction  Co., . .     Attachment  Execution,  193 

Walton  v Principal  and  Surety,. 272 

Anderson  v.  Wood, Negligence,  98 

Atlantic  Refining  Co.,  Mc- 

Grath  v Negligence, 341 

Bailey  v.  Young  Women's 

Christian  Assn.,   Equity,   515 

Baxter  v.  Phila.  &  Reading 

Ry.  Co., Negligence, 467 

Beaman,  Keystone  Guard  v.  Beneficial  Societies,..  397 

Bean's  Estate, Decedents'  Estates,  . .  131 

Bednorciki,  Com.  v Criminal  Law, 124 

Benscoter,  Watkins  v.  . . .  Principal  and  Agent,.  574 

Berberich's  Est.,  Bailment,   437 

Bergman  v.  Straus, Appeals,   439 

Borman    v.    United    Mer- 
chants   Realty  &  Imp. 

Co.,  Negligence, 156 

(ix) 

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x  TABLE  OP  CASES  EEPOETED. 

Page 
Black  y.  American  Inter- 
national Corp., Waters,   260 

Boorse,  Searle  v Evidence,    454 

Boyden  v.  Phila.  &  West 

Chester  Traction  Co.,  . .     Negligence, 137 

Brown,  Com.  v Criminal  Law, 85 

Fishman  v Partnership, 25 

Carlucci,  Lack.  Trust  Co.  v.  Promissory  Notes,  . . .  226 

CarrelVs  Estate,   Decedents'  Estates,  . .  140 

Carter  v.  Metropolitan  Life 

Ins.  Co., Loan,   505 

Catanach,  Nevin  v Partition,    523 

Central    R.    R.    Co.,    De 

Marchi  v Practice,  Supreme  Ct,  321 

ChappelVs  Estate, Decedents'  Estates,  . .  486 

Clark    v.    Lehigh    Valley 
Coal  Co., Workmen's  Compensa- 
tion,    529 

Clements,  Oyler  v Will,    65 

Colonial    Biscuit    Co.    v. 

Orcutt,   Corporations, 40 

Commonwealth  v.  Bednor- 

ciki,    Criminal  Law, 124 

v.  Brown,  Criminal  Law, 85 

v.  Dale, Criminal  Law, 362 

v.  Moon,  Criminal  Law, 63 

v.  Shrope, Criminal  Law, 246 

v.  Thorne, Taxation,    408 

Connell,  Thomas  v Public  Officers,   242 

Coppola  v.  Schaum,  etc., 

Inc.,   Negligence,  38 

Corporation  F.  &  F.  Co.  v. 

Stoffregen,    Corporations, 215 

Coxe,  Reitmyer  v Workmen's  Compensa- 
tion,    372 

Craig  v.  Craig, Equity,    380  * 

Curran  v.  Philadelphia,..     Municipalities,    Ill 


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TABLE  OF  CASES  REPORTED.  xi 

Page 

Dale,  Com.  v Criminal  Law, 362 

DeBouvier  v.  Penna.  R.  R. 

Co.,   Negligence, 443 

Del.  River  Steel  Co.,  Sam- 
uel v Contract, 190 

De  Marchi  v.  Cent.  R.  R. 

Co.,    Practice,  Supreme  Ct,  321 

Dempsey  v.  City  of  Scran- 
ton,    Negligence, 495 

Dershuck,  Wharen  v Trial,  562 

Diamond    Alkali    Co.    t. 
.Etna  Explosive  Co.,. . .     Contracts, 304 

Dickerson  v.  Midvale-Bene- 
ficial  Assn., Beneficial   Associa- 
tions,     415 

Dunmore  Borough's  Elec- 
tion,         Election  Law, 231 

Duquesne  Bond  Corp.  v. 
Am.  Surety  Co., Attachment       Execu- 
tion,    203 

Dyer  v.  Wallace, Mechanics'  Liens, 169 

Ellett,  Lit  Bros,  v Negligence,    185 

Equitable  Life  Assurance 

Society,  Fanning  v.  . . .     Evidence,    333 

Erie  R.  R.  Co.,  Reilly  v.  . .  Workmen's  Compensa- 
tion,   329 

Estate,  Bean's,  . . . , . Decedents'  Estates, . . .  131 

Berberich's,    Bailment,    437 

CarrelPs,   Decedents'  Estates,  . .  140 

Chappell's,   Decedents'  Estates,  . .  486 

Evans's  (No.  1),  ....     Wills,    357 

Fox's, Trusts  and  Trustees,  .  478 

Johnston's,  Will,   71 

Kadi's,  Practice,  Supreme  Ct.,  224 

Kaier's,  . . , Executors  and  Admin- 
istrators,   296 


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xii  TABLE  OF  CASES  REPORTED. 

Page 

Estate,  Kessler's, Wills,    422 

Kruger's,    Contract,    51 

Lawson's,    Wills,    77 

Losch's,   Will,    58 

Miller's, Executors  and  Admin- 
istrators,   310 

Murnaghan's  (No.  1),     Executors  and  Admin- 
istrators,   520 

Prevost's,    Will,    27 

Schwehm's,    , .  - Decedents'  Estates,  . .  355 

Stark's,    . .' Wills,    232 

Evans's  Estate  (No.  1),. .     Wills,    357 

Evans's  Estate  (No.  2), . .     Wills, 361 

Paber  v.  Gimbel  Bros.,  . . .  Negligence, 1 

Fanning   v.    Equitable  L. 

Assurance  Society, Evidence,    333 

Farrell,  Federal  Sales  Co. 

of  Phila.  v Practice,  C.  P., 149 

Federal  Sales  Co.  of  Phila. 

v.  Farrell, Practice,  C.  P., 149 

Feeney  v.  Maryland  Casu- 
alty Co., Contracts, 46 

Finan  v.  E.  T.  Mason  Co.,.  Negligence,  . , 394 

Fishman  v.  Brown, Partnership, 25 

Forty  Fort  Coal  Co.,  Ti- 
gue  v Workmen's  Compensa- 
tion,    590 

Fox's  Estate, Trusts  and  Trustees,  .  478 

Gallagher  v.  Walton  Mfg. 

Co., Workmen's  Compensa- 
tion,       29 

Gimbel  Bros.,  Faber  v.  . .  •     Negligence, 1 

Girard  Trust  Co.,  Wright  v.     Life  Estate,  22 

Gordon    v.    Phila.    Rapid 

Transit  Co.,  Practice,  Supreme  Ct.,  461 


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TABLE  OF  CASES  REPORTED.  xiii 

Page 
Green  &  Coates  Sts.,  etc., 

Ry.  v.  Phila.  Rapid  T. 

Co.,   Leases, 424 

Griffin  v.  Metal  Products 

Co.,    Sales, 254 

Guaranty    Motors    Co.    v. 

Hudford,  etc.,  Sales  Co.,    Pleading,   557 

Hancock  v.  Phila.  &  Read- 
ing Ry., Workmen's  Compensa- 
tion,   220 

Hatcher  v.  Hatcher, Trusts  and  Trustees, .  105 

Haughney  v.  Mahanoy  City 

Borough,    Negligence,    482 

Hawkes  v.  Phila., Road  Law,  346 

Healy  v.  Shedaker,  .......     Negligence, , 512 

Hohl  v.  Modell, Deeds,    516 

Horning  v.  Kraus, Deeds,    293 

Hudford,  etc.,    Sales  Co., 
Guaranty  Motors  Co.  v..     Pleading,    557 

Hudson  Coal  Co.,  McGur- 
rin  v Workmen's  Compensa- 
tion,   230 

Huebner,  Weisenberger  v.  Specific  Performance,  316 

International  Forge  Co.  v. 

Paul  S.  Reeves  &  Co.,. .  Practice,  Supreme  Ct,  431 

Iron  &  Glass  D.  S.  Bank 
v.  Wigman, Sheriffs  Sale,   146 

Johnston's  Estate, Will,    71 

Kaeir's  Estate, Practice,  Supreme  Ct.,  224 

Eater's  Estate,   Executors  and  Admin- 
istrators,   296 

Kahn  v.  Quaker  City  Cab 

Co.,   Evidence,    510 

Kelly  v.  Penna.  R.  R., Negligence, 426 

Kennedy  v.  Knott, Negligence, 26 


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xiv       TABLE  OF  CASES  REPORTED. 

Page 

Kessler's  Estate, Wills;   422 

Keystone    Guard    v.    Bea- 

man,    Beneficial  Societies, . .  397 

Knights  &  Ladies  of  Se- 
curity, Thatch  v Evidence,    578 

Knott,  Kennedy  v Negligence, 26 

Kraus,  Horning  v Deeds,    293 

Krehl  v.  Mosser, Sale, 403 

Kruger's  Estate, Contract, 51 

Lamont  v.  Adams  Express 

Co.,    Negligence,    17 

Landell  t.  Ly brand,  .....     Negligence,  406 

Lack.  Coal  Co.,  Lillibridge 

v Mines  and  Mining,  . .  235 

Lackawanna     T.     Co.     v. 

Carlucci,   Promissory  Notes,  . . .  226 

Ladner,  Winston  v Preliminary     Injunc- 
tion,    548 

Lawson's  Estate, Wills, 77 

Lebo  v.  Reading  T.  &  L. 

Co.,    Practice,  C.  P., 270 

Laing  v.  Remington  Arms 

Co., Negligence, 130 

Lehigh    Valley    Coal    Co., 

Clark  v.    Workmen's  Compensa- 
tion,    529 

Lillibridge  v.  Lack.  Coal 

Co.,    Mines  and  Mining,  . .  235 

Lit  Bros.,  Simon  v Negligence,  121 

Losch's  Estate, Wills, f 58 

Lybrand,  Landell  v Negligence, 406 

Macan  v.  Scandinavia  Belt- 
ing Co., Res  Adjudicata, 384 

Mahanoy  City  Borough, 
Haughney  v Negligence,  482 

Mansel,  Yeager  v Sale, 327 


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TABLE  OP  CASES  REPORTED.  xv 

Page 

Maryland    Casualty    Co., 

Peeney  v Contract,   46 

Mason  Co.,  Finan  v Negligence, 394 

McGrath  v.  Atlantic  Refin- 
ing Co.,  Negligence, 341 

McEvoy    v.    Quaker    City 

Cab  Co., Negligence, 418 

McGurrin  v.  Hudson  Coal 

Co.,   Workmen's  Compensa- 
tion,   230 

McMillen  v.  Strathmann,. .     Negligence, 13 

Metal  Product  Co.,  Griffin 
v Sales, 254 

Metropolitan  Life  Ins.  Co., 

Carter  v Insurance,    505 

Miller's  Estate,  Executors  and  Admin- 
istrators,   310 

Minute  v.  Phila.  &  Reading 

By.  Co.,   Negligence, 93 

Midvale  B.  Assn.,  Dicker- 
son  v Beneficial   Associa- 
tions,     415 

Modell,  Hohl  v Deeds,   516 

Moon,  Com.  v Criminal  Law, 63 

Moorhead,  Roberts  r Wills, 299 

Mosser,  Krehl  v Sale, 403 

Murnaghan's  Est.  (No.  1),    Executors  and  Admin- 
istrators,   520 

Murnaghan's  Est.  (No.  2),    Executors  and  Admin- 
istrators,   523 

Mut.  Union  Brewing  Co., 
Nolle  v Contracts, 534 

Neary  v.  Phila.  C.  &  I.  Co.,     Workmen's  Compensa- 
tion,   221 

Nevin  v.  Catanach, Partition,    523 

Nolle  v.  Mut.  Union  Brew- 
ing Co., Contract,    534 


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*vi  TABLE  OP  CASES  REPORTED. 

Page 
Orcutt,    Colonial    Biscuit 

Co.  v Corporations,  ... 40 

Oyler  v.  Clements, Will,    65 

Padden's  Contested  Elec- 
tion,       Election  Law, 183 

Paul  S.  Beeves  &  Co.,  In- 
ternational Forge  Co.  v.  Practice,  Supreme  Ct,  431 
Penna.  B.  B.  Co.,  DeBou- 

vier  v Negligence,    443 

Kelly  v Negligence, 426 

Sweatman  v Negligence, 286 

Penna.  Co.  for  Ins.,  etc., 

Account,   Wills,    433 

Permutit  v.  Wallace, Affidavit  of  Defense, .       9 

Philadelphia,  Curran  v.  . .     Municipalities, Ill 

Hawses  v Boad  Law,  346 

Henry  v Negligence,    33 

Winch  v Municipal       Corpora- 
tions,           7 

Whitcomb  v Municipalities, 277 

Phila.    Coal   &    Iron    Co., 

Neary  v Workmen's  Compensa- 
tion,    221 

Phila.  Bapid  Transit  Co., 

Gordon  v Practice,  Supreme  Ct.,  461 

Green  &  Coates  Sts., 

etc.,  By.  v Leases,   424 

Phila.  &  Beading  By.  Co., 

Baxter  v Negligence,  467 

Hancock  v Workmen's  Compensa- 
tion,   220 

Minute  v Negligence, 93 

Terletski  v Negligence, 35 

Phila.    &    West    Chester 

Traction  Co.,  Boyden  v.    Negligence, 137 

Pittsburgh  &  Lake  Erie  B. 

R.  v.  South  Shore  B.  B.,  Interstate  Commerce,  162 


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TABLE  OF  CASES  REPORTED.  xvii 

Page 

Prevost's  Estate, Will,   27 

Prudential  Ins.  Co.,  Reilly 

y Commissions,  61 

Quaker     City     Cab     Co., 

Eahn  v Evidence,   510 

McEvoy  v Negligence, 418 

Reading  T.  &  L.  Co.,  Lebo  v.    Practice,  C.  P., 270 

Reeves  &  Co.,  Internation- 
al Forge  Co.  v Practice,  Supreme  Ct.,  431 

Reibstein  v.  Abbott's  Al- 

derney  Dairies,  Negligence, 447 

Reilly  v.  Erie  R.  R.  Co.,  . .  Workmen's  Compensa- 
tion,    329 

Reilly  v.  Prudential  Ins. 

Co.,   Commissions,  61 

v.  Reilly Negligence, 103 

Remington      Arms      Co., 

Laing  v Negligence, 130 

Reitmyer  v.  Coxe  Bros.,..  Workmen's  Compensa- 
tion,    372 

Roberts  v.  Moorhead, Wills, 299 

Samuel  v.  Del.  River  Steel 

Co.,    Contract,   190 

Scandinavia   Belting   Co., 

Macan  v Res  Adjudicata, 384 

Schaum,  Coppola  v Negligence, 38 

Schwehm's  Estate, Decedents'  Estates,  . .  356 

Scranton,  Dempsey  v Negligence, 495 

Searles  v.  Boorse, Evidence,    454 

S.  G.  V.  Co.  v.  S.  G.  V.  Co.,     Contract,    377 

8.  G.  V.  Co.  v.  S.  G.  V.  Co.,    Corporations, 265 

Shedaker,  Healy  v Negligence, 512 

Shifferstine  v.  Sitter, Practice,  C.  P., 290 

Shimer    v.    Aldine    Trust 

Co., Equity,    444 


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xviii  TABLE  OF  CASES  REPORTED. 

Page 
Showell,     Fryer    &     Co., 

Wetherill  v Negligence, 449 

Shrope,  Com.  v Criminal  Law, 246 

Simon  v.  Lit  Bros., Negligence, 121 

Sitler,  Shifferstine  v Practice,  C.  P., 290 

Sorber  v.  Masters, Statute  of  Frauds,  . .  583 

South  Shore  R.  R.,  Pitts- 

burgh&LakeErieR.R.,v*  Interstate  Commerce,  162 

Stark's  Estate, Wills,   232 

State  Line  &  Sullivan  R. 

R.  Co.'s  Taxation, Foot  Acres  Standard,  489 

Stoffregen,  Corp.  F.  &  F. 

Co.,  v Corporations, 215 

Strathmann,  McMillen  v.  .     Negligence, 13 

Straus,  Bergman  v Appeals,    439 

Sweatman  v.  Penna.  R.  R. 

Co., Negligence, 286 

Tertletski  v.  Phila.  &  Read- 
ing Ry.  Co., Negligence,    35 

Thomas  v.  Connell, Public  Officers,   242 

Thorne,  Com.  v Taxation,    408 

Tigue  v.  Forty  Fort  Coal 
Co., Workmen's  Compensa- 
tion,    590 

Tkatch  y.  Knights  &  Ladies 
of  Security,  Evidence,   578 

United  Merchants  Realty 
&  Imp.  Co.,  Borman  v..     Negligence,    156 

Vandegrift     Construction 
Co.,    American    Surety 

Co.  of  N.  Y.  v Attachment      Execu- 
tion,   193 

Walker  v.  Walker, Practice,  C.  P., 68 

Wallace,  Dyer  v Mechanics'  Liens,  . . .  169 

Permutit  Co.  v. Affidavit  of  Defense,. .       9 


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TABLE  OF  CASES  REPORTED.      xix 

Page 

Walton  v.  American  Sure- 
ty Co.  of  N.  Y.,  Principal  and  Surety,  272 

Walton  Mfg.  Co.,  Gallagh- 
er v Workmen's  Compensa- 
tion,       29 

Watkins  v.  Benscoter,  . . .  Principal  and  Agent, .  574 

Weisenberger  y.  Huebner,  Specific  Performance,  316 

Wetherill  v.  Showell,  Fry- 
er &  Co., Negligence, 449 

Wharen  v.  Dershuck,  ....     Trial,  562 

Whitcomb  v.  Philadelphia,    Municipalities, 277 

Wigman,  Iron  &  Glass  D. 

S.  Bank  v Sheriff's  Sale, 146 

Winch  v.  Philadelphia,  . .  Municipal       Corpora- 

Winsor's  Estate, Decedents'  Estates  , . .  552 

Winston  v.  Ladner, Preliminary     Injunc- 
tion,    548 

Wood,  Anderson  v Negligence, 98 

Wright    v.    Girard    Trust 

Co.,    Life  Estate,  22 

Teager  t.  Mansel, Sale, 327 

Young  Women's  Christian 

Assn.,  Bailey  t Equity,    515 


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CASES  CITED 

Df  THE 

OPINIONS  OF  THE  SUPERIOR  COURT, 


Page 

Alexander  v.  Penna.  Water 
Co.,  201  Pa.  252, 189 

Allison  v.  Fitz  Water 
Wheel  Co„  250  Pa.  111,. .  344 

American  Home  Savings 
Bank  v.  Guardian  Trust 
Co.,  210  Pa.  320, 259 

Ame^s  App.,  49  Pa.  126,. .  134 

Amole's  Est.,  32  Pa.  Supe- 
rior Ct.  636,  82 

Anderson  v.  Brinser,  129 
Pa.  376, 587 

Armstrong  v.  Descalzi,  48 
Pa.  Superior  Ct.  171,  ...  192 

Arnold  v.  McKelvey,  253 
Pa.  324,    20 

Babb  v.  Reed,  5  Bawle  150,  83 
Bailey  v.  Miltenberger,  31 

Pa.  37, 262 

Baldy's  App.,  40  Pa.  328,.  145 
Ball  v.  United  States,  140 

TJ.  S.  118, 219 

B.  4  O.  R.  R.  Co.  v.  Mc- 
Laughlin, 73  Fed.  519,  . .  527 

Bank  of  Penna.  v.  Ories,  35 
Pa.  423,    174,  181 

Batley  v.  Foerderer,  162 
Pa.  460,    264 

Becker  v.  Phila.,  217  Pa. 
344, 392 

BeD  v.  Pittsburgh  Steel 
Co.,  243  Pa.  83, 352 

Bellah  v.  Poole,  202  Pa.  71,  441 

Bemus  v.  Clark,  29  Pa. 
251,    115 

Bennett  v.  Bennett*  25 
Conn.  66,   120 

Birmingham  v.  Fidelity  T. 
ft  T.  Co.,  251  Pa.  586,. .     70 


Page 
Bobb  v.  Connellsville  Bor- 
ough, 137  Pa.  42, 486 

Boggess  v.  B.  &  O.  R.  R. 

Co.,  234  Pa.  379,    4,  476,  500 
Bordentown  Banking  Co.  v. 

Restein,  214  Pa.  30,  ... .  152 
Borrekins  v.  Bevan,  3  Rawle 

23,    192 

Bradley  v.  The  State,  31 

Ind.   492,    368 

Breinig  v.  Oldt,  45  Pa.  Supe- 
rior Ct.  629, 481 

Bridgeport  v.  Eisenman,  47 

Conn.  34, H9 

Brooklyn    Street,   118   Pa. 

^WO,    350 

Brown  v.  Com.,  76  Pa.  819,  128 
v.  Myers,  145  Pa.  17,  . .  179 
v.   Penna.   Canal   Co., 

229  Fed.  444, 270 

Brunswick   v.   Hoover,    95 

Pa.  508, 269 

Bubb  v.  Parker,  etc.,   Oil 

Co.,  252  Pa.  26, 116 

Buck  v.  Com.,  107  Pa.  486,  252 
Buckley  v.  EUmaker,  13  S. 

4R.  71,   H5 

Buckman  v.  Phila.  &  Read- 
ing R.  R.   Co.,  227  Pa. 

277,  476,  500 

Burger  v.  Moss  Cigar  Co., 

225  Pa.  400,   174 

Burr  v.  Sim,  4  Wh.  149,  ...  338 
Burrows  v.  Carson,  244,  Pa.     » 
6, 174 

Canfield  v.  Watertown  Fire 
Ins.  Co.,  55  Wis.  419,  ...  120 

Carney  v.  Merchants' 
Union  T.  Co.,  252  Pa. 
881,    487 


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T^PI 


TABLE  OF  CASES  CHED. 


Page 
Carson  v.  Blazer,  2  Binney 

474,    262 

Cavanaugh  v.  Buehler,  120 

Pa.  441,    92 

Caveny  v.  Curtis,  257  Pa. 

575,    320 

Centennial  Mem.  Assn.  of 

Valley  Forge,  235  Pa.  206,    82 
Chapman  v.  Faith,  18  Pa. 

Superior  Ct.  578, 180 

Chariton  County  v.  Mober- 

ly,  59  Mo.  238, 554 

Christman  v.  Moran,  9  Pa. 

487,    115 

Clymer  v.  Roberts,  220  Pa. 

162,    353 

Cogswell  v.  Cameron,  136 

Mass.  518, 119 

Colonial  Trust  Co.  v.  Mon- 
tello   Brick   Works,   172 

Fed.  310, 270 

Comegys  v.  Davidson,  154 

Pa.   534,    ,...  155 

Com.  v.  Ballon,  229  Pa.  823,    92 
v.  Barnett,  199  Pa.  161,  528 
v.  Cairns,  48  Pa.  Su- 
perior Ct.  265, 550 

v.   Detweiler,  229  Pa. 

304,    92 

v.  Drum,  58  Pa.  9,  ... .  127 
y.  Equitable  Beneficial 

Assn.,  137  Pa.  412,  416 
v.  Fry,  198  Pa.  379,. .  126 
y.    Garanchoskie,    251 

Pa.  247,   90 

v.    Holstine,    182    Pa. 

357,    252 

v.    Jackson,    248    Pa. 

530,    252 

y.    Leskoski,    225    Pa. 


y.   McManus,   143  Pa. 

64,  89,  129 

v.  Miller,  258  Pa.  226,  126 
y.  Monongahela  Bridge 

Co.,  216  Pa.  108,...  269 
v.  Razmus,  210  Pa.  609,  16 
v.    Schmous,    162    Pa. 

326,    127 

v.   Shoemaker,   14  Pa. 

194,    354 

v.  Smith,  221  Pa.  552,  129 
v.  Ware,  137  Pa.  465,.  92 
v.   Watmough,   6   Wh. 

117,    213 


Pag€ 
Com.  y.  Winkelman,  12  Pa. 

Superior   Ct.   497,..  128 
v.  Zappe,  153  Pa.  498,  129 
Com.     ex    rel.    v.    Young 

Men's    Christian    Assn., 

169  Pa.  24,   262 

Connor  v.  N.  Y.  L.  Ins.  Co., 

179  App.  Div.  596, 340 

Cramer's  Election,  248  Pa. 

208,    185 

Creachen  v.  Bromley  Bros. 

Carpet  Co.,  214  Pa.  15,  89,  208 
Cumberland    Valley  R.  R. 

Co.'s  App.,  62  Pa.  218,.  401 

Dainty  v.  Jones  &  L.   S. 

Co.,  263  Pa.  109, 532 

Dobra  v.  Lehigh  Val.  Coal 

Co.,  250  Pa.  313, 190 

Deeds  v.  Imperial  Brick  Co., 

219  Pa.  579, 182 

Del.  &  Hudson  Co.  v.  Oly- 

phant  Boro.,  224  Pa.  387,  551 
Derr  v.  Ackerman,  182  Pa. 

591, 587 

Dickinson   v.    Calahan,   19 

Pa.  227,   589 

Di  Meglio  v.  Phila.  &  R. 

Ry.  Co.,  249  Pa.  319,. . .  96 
Dimmick  v.  Banning,  etc., 

Co.,  256  Pa.  295, 308 

Dorba    v.    Lehigh    Valley 

Coal  Co.,  250  Pa.  313,..  459 
Dodson  v.  Ball,  60  Pa.  492,  480 
Doughty  v.  DeAmoreel,  22 

R.  I.  158,  250 

Dougherty   v.    Phila.,    210 

Pa.  591,   486 

Douglass  v.  Mitchell,  35  Pa. 

440,    336 

Dull's  Est,  222  Pa.  208,. .  423 

Eastburn  v.  United  States 
Express  Co.,  225  Pa.  33,  453 

East  Stroudsburg  Lumber 
Co.'s  App.,  1  Pa.  Supe- 
rior Ct.  261, 175 

Ehrisman  v.  Sener,  162  Pa. 
577,    481 

Electric  City  Land,  etc., 
Co.  v.  West  Ridge  Coal 
Co.,  187  Pa.  500, 519 

Emery  v.  Boyle,  200  Pa. 
249,    116 

Englander  v.  Apfelbaum, 
56  Pa.  Superior  Ct.  145,  520 


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TABLE  OP  CASES  CITED. 


mil 


Page 
Erie   City   Iron   Works  v. 

Barber,  106  Pa.  125,  ...  259 
-<Etna  Ins.  Co.  v.  Confer, 

158  Pa.  598, 153 

Francis  v.  Prudential  Ins. 

Co.,  243  Pa.  380, 508 

Frederick     v.     Margwarth, 

221  Pa.  418, 119 

Freeland  v.  Penna.  B.  B. 

Co.,  197  Pa.  529, 262 

Frey  v.  Stipp,  224  Pa.  390,  320 
Follansbee   v.   Walker,   74 

Pa.   306,    391 

Forte  v.   Markle   Co.,  258 

Pa.  194, 188 

Foster  v.  Natl.  Steel  Co., 

216  Pa.  279 189 

Fountain   v.   Bigham,   235 

Pa.  35,    276 

Fox  v.  Great  A.  &  P.  Tea 

Co.,  84  N.  J.  L.  726,  . .  21 
Foy's  Election,  228  Pa.  14,  185 
Faust  v.   Cairns,   242  Pa. 

15, 550 

Fetter  v.  Wilt,  46  Pa.  457,  90 
Finch  v.  Lamberton,  62  Pa. 

370,    115 

v.  Smith,  146  Ala.  644,  527 
Fire  Ins.  Patrol  v.  Boyd, 

120  Pa.  624, 82 

Fitzell  v.  Phila.,  211  Pa.  1,  349 
Florida  Yacht  Club  v.  Ben- 

froe,  67  Fla.  154, 120 

Flucker  v.  Carnegie  Steel 

Co.,  263  Pa.  113, 331 

Fuller  v.  Law,  207  Pa.  101,  218 

Gamble  v.  Phila.,  162  Pa. 

413, 350 

Gandy  v.  Weckerly,  220  Pa, 

295,    228 

Garrison  v.  Armstrong,  248 

Pa.  402,    344 

Gemmell  v.  Fox,  241  Pa. 

146,    516 

Getty  v.  Penna.  I.  for  the 

B.  194  Pa.  571, 328 

Gilkeson  v.  Thompson,  210 

Pa.  355,    209 

Gilmore  v.  Phila.  Transit 

Co.,  253  Pa.  543, 501 

Gilmore's  Est,  158  Pa.  186,  136 
Glass  v.  College  Hill  Boro., 

233  Pa.  457, 189 


Page 
Glazier  v.  Jacobs,  250  Pa. 

357,    211 

Glenn  v.  Phila.,  West  Ches- 
ter Traction  Co.,  206  Pa. 

135,    449 

Goodhart  v.  Penna.  B.  B. 

Co.,  177  Pa.  1,  ...4,499 
v.   Penna.   B.   B.   Co., 

117  Pa.  15, 472 

Gonsales     v.     Deavens,     2 

Yeates  539, 115 

Graham  v.  Graham,  9  Pa. 

254, 115,  119 

Greenwood    v.    State,    116 

Ind.  485, 220 

Gregg  v.  Meeker,  4  Binney 

428,    152 

Griffith   v.    Sitgreaves,    81 

Pa.  378, 153 

Grove  v.   Hodges,    55   Pa. 

604,    540 

Guiteau's  Case,  10  Fed.  161,  367 

Hart  v.   New  Haven  Vil- 
lage, 130  Mich.  181,  ....  503 
Hahn  v.   Hutchinson,   159 

Pa.  133,    480 

Hartley  v.  Langkamp,  243 

Pa.   550,    388 

Hallock  v.   Lebanon,   215 

Pa.  1, 208 

Haley  v.  Prosser,  8  W.  &  S. 

133,    179 

Hassam     Paving     Co.     v. 

Stipp,  249  Pa.  94, 153 

Hamilton   v.   Phoenix   Ins. 

Co.,  106  Mass.  395, 118 

Hairston    v.    Hairston,    27 

Miss.  704, 554 

Hart  v.  Carroll,  85  Pa.  508,  587 
Heasley  v.  Heasley,  191  Pa. 

539,    417 

Henderson  v.   Young,   260 

Pa.  334, 352 

Hertzog  v.  Hertzog,  29  Pa. 

465,    375 

Herzberg  v.  Irwin,  92  Pa. 

48,    264 

Hess    v.    Vinton    Colliery 

Co.,  255  Pa.  78, 392 

Hoytfs  Est.,  232  Pa.  189,. . . 
Hibberd  v.   Edwards,   235 

Pa.  454,  519 

Hiestand  v.  Keath,  229  Pa. 

149,    174 


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XXIV 


TABLE  OP  CASES  CITED. 


Page 
Highland  Chemical  Co.  v. 

Matthews,  76  N.  Y.  145,  309 
Hileman   v.   Hollidaysburg 

Borough,  47  Pa.  Superior 

Ct  41,  364 

Hillside   C.    &    C.    Co.   v. 

Penna.  B.  B.  Co.,  229  Pa. 

61,    393 

Hirsch  v.  North  Braddock 

Borough,  252  Pa.  22,...  285 
Bollinger's  Est,  259  Pa.  72,  145 
Hollis  v.  Widner,  221  Pa. 

72,    189 

Holloway  v.  Jacoby,  120  Pa. 

583,    192 

Holmes   v.   Paul,   3   Grant 

299,'. 209 

Holmes  v.  Traction  Co.,  199 

Pa.  229,    9 

Horner  v.  Horner,  145  Pa. 

258,    152 

Holten  v.  New  Castle  By. 

Co.,  138  Pa.  Ill,  . 383 

Huffnagle  v.  Del.  &  Hudson 

Co.,  227  Pa.  476, 89 

Humane  Fire   Co.'s   App., 

88  Pa.  389,   .• 82 

Hunter    v.    Baker    Motor, 

etc.,  Co.,  225  Fed.  1006,  270 

Indian  v.  Del.,  L.  &  W.  B. 

B.  Co.,  262  Pa.  117,. ...  97 
Ingraham  v.  Whitmore,  75 

HI.  24, 118 

Jackson  v.   Litch,   62   Pa. 

451,    449 

Jeanea's  Est.,  14  Pa.  O.  C. 

B.  617,   83 

Jenkinson  v.  Eggers,  28  Pa. 

Superior  Ct.  360, 

Jewell  v.  Com.,  22  Pa.  94,  129 
Jones  v.  Burnham,  217  Pa. 

286,    345 

Joy  v.  Simpson,  2  N.  H. 

179,    115 

Kaufman  v.  Pittsburgh,  etc., 
B.  B.,  210  Pa.  440,  ....  208 

Keen  v.  Del.  D.  Canal  Co., 
14  How.  80, 262 

Keily  v.  Saunders,  236  Pa. 
593,    264 

Kelley's  Est.,  29  Pa.  Supe- 
rior Ct.  106, 418 

Keiser  v.  Berks  Co.,  253 
Pa.  167, 115 


Page 

Kellogg  Bridge  Co.  v.  Ham- 
ilton, 110  U.  S.  108,  ....  259 

Kendall  v.  Klapperthal,  202 
Pa.   596,    269 

Kennedy  v.  Poor,  151  Pa. 
472,    115 

Kerrigan  v.  Penna.  B.  B. 
Co.,  194  Pa.  98, 5 

Kittanning  Ins.  Co.  v. 
O'Neill,  110  Pa.  548,. . .     92 

Knelly  v.  Horwarth,  208 
Pa.  487   174 

Kvist's  Est,"  256  Pa.'  30^..  522 

Laird's  App.,  85  Pa.  339,..  423 
Lance's  App.,  112  Pa.  456,  383 
Lane  v.  Horn   &  Hardart 

Baking  Co.,  261  Pa.  329,  532 
Laros  v.  Com.,  84  Pa.  200,  368 
Larrisen's  App.,  36  Pa.  130,  145 
Leahy  v.  Cheney,  90  Conn. 

611,   589 

Learning  v.   Wise,   73  Pa. 

173,    219 

Leary  v.  McBvain,  263  Pa. 

499,    332 

Lengert    v.   Chaninel,   205 

Pa.  280, 155 

Lentz's  Est,  261  Pa.  530,.  379 
Leonard  v.  Bait.  &  O.  B. 

B.  Co.,  259  Pa.  61,  ... .  17 
Lewisburg  B.  Co.  v.  Union 

County,  232  Pa.  255,...  528 
Linden  Steel  Co.  v.  Bough 

Bun  Mfg.   Co.,   158  Pa. 

238, 175 

Little    v.    Trentman,    130 

Ind.  16, 219 

Liverpool,  etc.,  Ins.  Co.  v. 

Goehring,  99  Pa.  13,...  119 
Livingston's  App.,   88   Pa. 

209, 219 

Llewellyn      v.      Sunnyside 

Coal  Co.,  242  Pa.  517,. .  319 
Lumis   v.    Phila.    Traction 

Co.,  181  Pa.  268, 486 

Luther  v.  Luther,  216  Pa.  1,  320 

Madden's  Case,  222  Mass. 
487,    533 

Malone  v.  Phila.,  147  Pa. 
416, 117 

Marine  Coal  Co.  v.  Pitts- 
burgh, etc.,  B.  B.  Co., 
246  Pa.  478,   281 


Digitized  by 


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TABLE  OP  CASES  CITED. 


XXV 


Page 
Marx  v.  American  Malting 

Co.,  169  Fed.  Rep.  582,. .  308 
Maries    Moulding    Co.    v. 

Stulb,  215  Pa.  91, 218 

Mattox  v.  U.  S.,  146  U.  S. 

14U|      a   ..    .  •  .    ...    ...   ...    ••    .  .      XJU  I 

Mayer  v.  Society  for  Visi- 
tation of  Sick,  2  Brewster 
888,    83 

McAfee  v.  Huidekepper,  34 
L.  R.  A.  720, 325 

McAlpin's  Est.,  211  Pa.  26,  234 

McCahan's  Est.,  221  Pa. 
186,    561 

McCauley      v.       Imperial 
Woolen  Co.,  261  Pa. 

312,    332 

v.     Imperial     Woolen 
Co.,  261  Pa.  312, 592 

McClung  v.  Penna.  Taxi- 
meter Cab  Co.,  252  Pa. 
478,    123 

McClure  v.  Law,  161  N.  Y. 
78,    403 

McCord  v.  Scott,  4  Watts 
11, 119 

McCracken  v.  Traction  Co., 
201  Pa.  384, 476 

McCrystal  v.  Cochran,  147 
Pa.  225, 180 

McCullough  v.  Ry.  Mail 
Assn.,  225  Pa.  118, 527 

McDonald  v.  Columbia  N. 
L.  Ins.  Co.,  253  Pa.  239,  510 

McGunnegle  v.  Pittsburgh 
&  Lake  Erie  R.  R.  Co., 
213  Pa.  383, 262 

McLane  v.  Pittsburgh  Rys. 

Co.,  230  Pa.  29, 476 

v.  Pittsburgh  Rys.  Co., 
230  Pa.  29, 600 

McManus  v.  McCullough,  6 
Watts  357,  115 

Meason  v.  Kaine,  63  Pa. 
335,    110 

Meigs  v.  Milligan,  177  Pa. 

66,    519 

Mellon  v.  Davison,  125  Pa. 

298,    320 

Menendez  v.  Holt,  128  U.  S. 

514,    520 

Mercer  v.  M.  &  L.  Co.  v. 

Elreaps,  18  Pa.  Superior 

Ot  1, 174 


Page 

Merriman  v.  Phillipsburg 
Borough,   158   Pa.   78,..  484 

Messinger  v.  Lehigh  V.  R. 

R.  Co.,  261  Pa.  336,.     32 
v.  Lehigh  Val.  R.  R. 
Co.,  261  Pa.  336,  ..  380 

Mesta  Machine  Co.  v.  Dun- 
bar Furnace  Co.,  250  Pa. 
472,    174 

Myers  v.  Com.,  83  Pa.  131,  129 

Mickley's  App.,  92  Pa.  514,  234 

Midlin  v.  Saxony  Spinning 
Co.,  261  Pa.  354, 442 

Miller's  Est.,  16  Lane.  Law 
Rev.  3, 136 

Miller  v.  James  Smith 
Woolen  Machinery  Co., 
220  Pa.  181,   89 

Milligan  v.  Phila.  &  Read- 
ing Ry.  Co.,  261,  Pa.  844,  470 

Milne's  App.,  99  Pa.  483,. .  487 

Monongahela  Bridge  Co.  v. 
Pittsburgh,  etc.,  T.  Co., 
196  Pa.  25, 391 

Mooney  v.  Lehigh  Val.  R. 
R.  Co.,  261  Pa.  339,  ...  332 

Moore  v.  Smith,  Watts  407,  860 

Morrison  v.  Truby,  145  Pa. 
640, 284 

Morrish  v.  Morrish,  262  Pa. 
192,    110 

Moses  v.  Northwestern  Pa. 
Ry.,  258  Pa.  537, 464 

Murphy  v.   Com.,   92  Ky. 

485,    867 

v.  Bear,  240  Pa.  448,..  179 

Mutual  Benefit  Co.'s  Peti- 
tion, 174  Pa.  1, 338 

Myer>s  Will,  184  N.  Y.  54,  367 

Neely  v.   Phila.,   212   Pa. 

651,    349 

Negley  v.  Lindsay,  67  Pa. 

217,    219 

Nicel  v.  Carr,  35  Pa.  361,. .  264 
Noel  v.  Kessler,  252  Pa.  24,  154 
North  Shore  R.  R.  v.  Penna. 

Co.,  231  Pa.  307, 551 

Northwestern  Masonic  Aid 

Assn.  v.  Jones,  154  Pa. 

99,    418 

Nowlis  v.  Hurwitz,  232  Pa. 

154,    16 

O'Connell  v.  Beecher,  47  N. 
T.  S.  334, 316 

Digitized  by  VjOOQIC 


XXVI 


TABLE  OP  CASES  CITED. 


Page 
Onion  v.  Bobinson,  15  Vt. 

610,    115 

Orne  v.  Fridenberg,  148  Pa. 

487,    519 

Ott  v.  Jordan,  116  Pa-  218,    90 

Page  v.  Carr,  232  Pa.  371,  174 
v.  Carr,  232  Pa.  371,. .  181 
y.  Eanstead,  92  Mass. 

juv&f      ..............     -LAO 

Painter  v.  Kistler,  59  Pa. 

331,    115 

Palmer  v.  Farrell,  129  Pa. 

162, 262 

Parson's  Est.,  82  Pa.  465,.  298 
Peale  v.  Addicks,  174  Pa. 

643,    228 

Peck  v.  Jones,  70  Pa.  83,. .  277 
Penna.  E.  R.  Co.  v.  Mac- 

Kinney,  124  Pa.  462,  444 
v.  Pennock,  51  Pa.  244,  442 
Penna.  Co.  v.  Phila.  G.  & 

N.R.  R.,  1  D.  R.  301,..  438 
People  v.  Bangs,  24  HI.  184,  219 
People  v.  Gambacorta,  197 

N.  Y.  181,  367 

People  v.  Garbutt,  17  Mich. 

9, 366 

v.  Koerner,  154  N.  Y. 

365, 370 

Pfaff  v.  Bacon,  249  Pa.  297,  185 
Pfeifer  v.  Allegheny  Steel 

Co.,  243  Pa.  256, 189 

Pickering  v.   Shotwell,   10 

Pa.  23, 83 

Pierrepont  v.  Edwards,  25 

N.  Y.  128,  76 

Pittsburgh  Construction 
Co.  v.  West  Side  Belt  R. 

R„  227  Pa.  90, 391 

Pittsburgh  &  L.  E.  R.  R. 
Co.  v.  Clinton,  etc.,  Co., 

258  Pa.  338, 164 

Phila.  &  R.  R.  Co.  v.  Hum- 
mel!, 44  Pa.  375, 453 

Phila.  C.  P.  R.  Co.  v.  Hen- 
rice,  92  Pa.  431, 336 

Phila.  &  Del.  County  R.  R. 

v.  Conway,  177  Pa.  364,  218 
Prater  v.  Prater,  94  S.  C. 

267, 589 

Prendergast  v.  Walls,  257 

Pa.   547,    519 

Press  Pub.  Co.  v.  Reading 
News  Agency,  44  Pa.  Su- 
perior, fit  .428,  392 


Page 

Price  v.  Kirk,  90  Pa-  47,. . 
174,181 

Protosenia  v.  Bros.  Valley 
Coal  Co.,  251  Pa.  176,. .  344 

Provenchere's  App.,  67  Pa- 
463,    360 

Point  Bridge  Co.  v.  Pitts- 
burgh, etc.,  Co.,  230  Pa. 


Pollack  v.  Penna.  R.  R.  Co., 
210  Pa.  631,  96 

Poluekiewicz  v.  Phila.  & 
Reading  C.  &  I.  Co.,  257 
Pa.  305, 32,221 

Poor  v.  McClure,  77  Pa. 
214,    262 

Porter  v.  Wilson,  62  Pa. 
Superior  Ct.  339, 344 

Pursell  v.  Stover,  110  Pa. 
43,    262 

Quigley  v.  Thompson,  211 
Pa.  107,   449 

Rakie  v.  Jefferson,  etc.,  C. 

&  I.  Co.,  262  Pa.  444,  .. .  376 
Reap  v.  Dougher,  261  Pa. 

23,    133 

Rechenbach     v.     Ruddach, 

127  Pa.  564, 368 

Rector  v.  Hunter,  15  Tex. 

380,    119 

Reed  v.   Pittsburgh,   etc., 

Ry.  Co.,  243  Pa.  562,  ...  430 
Reese  v.  Clark,  198  Pa.  312,  345 
Reiff's  App.,  124  Pa.  145,  360 
Reighard's    Est.,    192    Pa. 

108,    264 

Reznor  Mfg.  Co.  v.  B.  &  L. 

E.  R.  R.  Co.,  233  Pa.  369,  16 
Rickett's  App.,  21  W.  N.  C. 

229,    402 

Riddlesburg  I.  &  O.  Co.  v. 

Rogers,  65  Pa.  416, 93 

Richardson  v.  Richardson, 

193  Pa.  279,  441 

Ringrose  v.  Ringrose,  170 

Pa.  693,    587 

Rivers  v.  Walker,  1  Dal.  81,  118 
Robinson    v.    Bickley,    30 

Pa.  384, 115 

Rosengarten  v.  Ashton,  228 

Pa.  889,...-. 86° 


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TABLE  OF  CASES  CITED. 


zzvu 


Page 
Boss  v.  Baker,  72  Pa.  186,  320 
Boss  Common  Water  Co.  v. 

Blue      Mountain,      etc., 

Water  Co.,  228  Pa.  235,  551 
Bundle  v.  Del.  &  Baritan 

Canal  Co.,  14  Bow.  80,.  262 
Bush  v.  Able,  90  Pa.  153, 

174,   181 

Safe  Dep.  Co.  v.  Columbia 

I.  &  S.  Co.,  176  Pa.  536,  175 
Safe  Dep.  &  T.  Co.  v.  Dia- 
mond Coal  &  C.  Co.,  234 

Pa.   100,    320 

Salig  v.  U.  S.  Life  Ins.  Co., 

236  Pa.  460, 509 

Sax  v.  School  Dist.,  237  Pa. 

68,    174 

St.      Andrew's      Lutheran 

Church's    App.,    67    Pa. 

512,    519 

St.  Clair  Coal  Co.  v.  Marts, 

75  Pa.  384, 181 

Sample  y.   Horlacher,   177 

Pa.  247,   587 

Schenley  v.  Allegheny,  36 

Pa.  29, 528 

Schiffer  v.  Sauer  Co.,  238 

Pa.  550,    408 

Schultz  v.  Sarver,  3  Penny. 

411,    174 

Seeherman  v.  Wilkes-Barre 

Co.,  255  Pa.  11, 4 

Selser  v.  Boberts,  105  Pa. 

242     . .  192 

Shaffer  V.  Bahr,'  57  Pa.  Su- 
perior Ct.  48, 97 

v.  Beaver  Valley  Trac- 
tion Co.,  229  Pa.  533,  430 
Sheridan  v.  Sheridan,  136 

Pa.  14,    527 

Shetter  y.  Wekel,  242  Pa. 

355, 351 

Shields  v.  Mifflin,  3  Yeates 

389,    61 

Shirley  v.  Shirley,  59  Pa. 

267,    589 

Sickels  v.  Phila.,  209  Pa. 

113, 486 

Sikerski  y.  Phila.  &  B.  By. 

Co.,  260  Pa.  243, 130 

Silsby  y.  Michigan  Car  Co., 

95  Michigan  204, 475 


Page 
Simpson  v.  Penna.  B.  B. 

Co.,  210  Pa.  101, 499 

Singer  v.  Martin,  96  Wash. 

231,    503 

Singer  Mfg.  Co.  v.  Chris- 
tian, 211  Pa.  534, 155 

Sloan's  Est,  254  Pa.  346,.  488 
Smith  v.  P.  B.  T.  Co.,  202 

Pa.  54, 449 

y.  Fellows,  131   Mass. 

20;    76 

Somerser  Boro.  v.  Ott,  207 

Pa.  539, 115 

Snodgrass  v.  Carnegie  Steel 

Co.,  173  Pa.  228, 188 

Spackman    v.    Steidel,    88 

Pa.  453, 349 

Spangler    Brewing    Co.    v. 

McHenry,  242  Pa.  522,. .  401 
Speakman  v.  Forepaugh,  44 

Pa.   363,    264 

Sprigg  v.  Com.,  206  Pa.548,  527 
State  y.    Cunningham,   72 

N.  Car.  469, 367 

v.  La  Bose,  71  N.  H. 

435, 250 

y.  Van  Tassel,  103  Iowa 

11,    368 

v.    Windsor,    5    Harr 

(Del.)    512,    367 

Stephens  v.    Campbell,   13 

Pa.  Superior  Ct  7,  ....  175 
Stewart  Iron  Co.  v.  P.  Co., 

47  1.  O.  C.  513, 168 

Stokes's  Est,  20  W.  N.  C. 

48,    436 

Strause  v.  Bergner,  220  Pa. 

Pa.  367,    379 

Straw  v.  Truesdale,  59  N. 

H.  109,   120 

Streater  v.  Paxton,  201  Pa. 

135,    218 

Swecker  v.   Reynolds,   246 

Pa.  197,    527 

Swartz  v.  Hatcher,  Trusts 

and  Trustees, 105 

Swift  y.  Easton  Beneficial 

Society,  73  Pa.  362,  ...     88 
Sunbury  Boro.  v.  Sunbury, 

etc.,  By.,  241  Pa.  357,  ...  208 
Sutherland  v.  Boss,  140  Pa. 
379, 133 

Tanner  v.  Hughes,  53  Pa. 
289,    336 


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xxvm 


TABLE  OP  CASES  CITED. 


Page 
Tasker's  Est.,  182  Pa.  122,  229 
Tesson  v.  Porter,  238  Pa. 

504,    849 

Thaler    Bros.    v.    Greisser 

Construction  Co.,  229  Pa. 

512,    121 

Toner  v.  Taggart,  5  Binney 

490,    135 

Trevethan  v.  Phila.  &  R. 

Ry.  Co.,  244  Pa.  414,.. 38,  96 
Turner  v.  Sdott,  51  Pa.  126,    59 

Ulrich  v.  Arnold,  120  Pa. 
170,    135 

VanZandt  v.  Phila.  B.  &  W. 
R.  Co.,  248  Pa.  276,.  .290,  430 

Vautier  v.  Atlantic  Refin- 
ing Co.,  231  Pa.  8, 449 

Virgilio  v.  Walker  & 
Brehm,  254  Pa.  241,  20,   100 

Vincent  v.  German  Ins. 
Co.,  120  Iowa  272, 119 

Vulcanite  Portland  Cement 
Co.  v.  Allison,  220  Pa. 
382,    174 

Wainwright  v.  McCullough, 

63  Pa.  66, 262 

Wagner    v.    Phila.    Rapid 

Transit  Co.,  252  Pa.  354,  123 
Wallace  v.   Penna.   R.   R. 

Co.,  222  Pa.  557,  . .     22 
v.  Penna.   R.  R.   Co., 

195  Pa.  127, 499 

Wall's  App.,  Ill  Pa.  460,.  135 
Walker  v.  Walker,  254  Pa. 

220,    71 

Walsh  v.  People,  88  N.  Y. 

458,    367 

v.    New    York    Cent., 
etc.,  R.  R.  Co.,  204 

N.  Y.  58, 503 

Walton  v.  Bryn  Mawr  Ho- 
tel Co.,  160  Pa.  3, 458 

Wallace  v.   Penna.   R.   R. 

Co.,  195  Pa.  127, 476 

Walker  v.  The  State,  102 
Ind.  502, 370 


Page 
Wannamaker  v.  Burke,  111 

Pa.  423, 458 

Wanner  v.  Snyder,  177  Pa. 

208, 481 

Watertown  Paper  Co.,  169 

Fed.  252,    270 

Watts    v.    Plymouth    Bor- 
ough, 255  Pa.  185, 100 

Watts  v.  State,  99  Md.  30,  367 
Wayne  v.  Penna.  R.  R.  Co., 

231  Pa.  512, 284 

Weaver     v.      Huntingdon, 

etc.,  R.  R.  Co.,   50  Pa. 

314,    211 

Webster     v.     Monongahela 

River  Consolidated  C.  & 

C.  Co.,  201  Pa.  278, 189 

Wieda  v.  Hanover  Twp.,  30 

Pa.   Superior  Ct.   194,..  354 
Williamson's  Est.,  153  Pa. 

508,    493 

Williams  v.  Notopolos,  269 

Pa.  469,    121 

Wilson     v.     Second     Nat. 

Bank,  4  Sadler  68,  . .  209 
v.  Van  Leer,  103  Pa. 

600,    60 

v.    Wernwag,   217  Pa. 
82  392 

Whelen's'  App.,'  70  Pa."  410,  487 
Whitaker     v.     Phoanixville 

Borough,  141  Pa.  327,..  350 
Whiteside's   App.,   23   Pa. 

114,    339 

Wolf  v.  P.  R.  T.  Co.,  252 

Pa.  448     464 

Wood  v.  Wood,"  263  Pa!  521,  219 

Yard's  App.,  64  Pa.  95,..     82 
Yeager  v.  Gately,  262  Pa. 

466,    454 

Yeamans   v.   Yeamans,   99 

Mass.  585, 115 

v.  Yeamans,  99  Mass. 

585,    115 

York  v.  York  Rys.  Co.,  229 

Pa.  236 116 

Young  v.  Lutheran  Church, 

200  Pa.  332, 83 

v.  Lyman,  9  Pa.  449,.  179 
Young's  App.,  99  Pa.  74,. .  487 

Ziegler  v.  McFarland,  147 
Pa.   607,   218 


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ACTS  OF  ASSEMBLY  CONSTRUED. 


1772.  March  21,  1  Sm.  L.  389.    Specific  Performance. 

Weisenberger  v.  Huebner,  316. 
1834.  February  24,  P.  L.  84.    Wills.    Johnston'*  Est., 

71,  75. 
1836.  June  13,  P.  L.  583.    Appeals.    Bergman  v.  Straus, 

439. 
1836.  June  16,  P.  L.  761.    Attachment  Execution.    Du- 

quesne  Bond  Corporation  v.  American  Surety 

Co.  of  New  York,  203. 
1840.  April  13,  P.  L.  1.    Decedents'  Estates.    ChappelTs 

Est.,  486. 
1845.  April  16,  P.  L.  538.    Mechanic's  Lien.    Dyer  v. 

Wallace,  169. 

1854.  Feb.  20,  P.  L.  89.    Partition.    Nevin  v.  Catanach, 

523. 

1855.  April  26,  P.  L.  328.    Wills.    Lawson's  Est.,  77. 

1856.  April  22,  P.  L.  533.    Trusts  and  Trustees.    Hatch- 

er v.  Hatcher,  105. 
1861.  May  1,  P.  L.  680.    Executors  and  Administrators. 

Kaier's  Est.,  296. 
1868.  April  28,  P.  L.  105.    Taxation.    State  Line  &  S. 

B.  B.  Co.'s  Taxation,  489. 
1874.  May  19,  P.  L.  213.    Election  Law.    Dunmore  Bor- 
ough's Election,  231. 
1879.  June  4,  P.  L.  88.    Wills.    Penna.  Co.  for  Ins.,  etc., 

Account,  433. 
1887.  May  13,  P.  L.  108.    Contract.    Nolle  v.  Mut.  Union 

Brewing  Co.,  534. 
1887.  May  13,  P.  L.  108.    Liquor  Laws.    Nolle  v.  Mut. 

Union  Brewing  Co.,  534. 
1801.  June  9,  P.  L.  581.    Contract.    Nolle  v.  Mut.  Union 

Brewing  Co.,  534. 

(nix) 


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ACTS  OF  ASSEMBLY  CONSTRUED. 

1899.  May  9,  P.  L.  173.    Road  Law.    Hawkes  v.  Phila- 
delphia, 346. 
1899.  May  2,  P.  L.  184.     Taxation.     Com.  v.  Thome, 

Neale  &  Co.,  408. 
1901.  June  4,  P.  L.  454.     Mechanics'  Liens.     Dyer  v. 

Wallace,  169. 
1905.  April  17,  P.  L.  172.     Mechanic's  Lien.    Dyer  v. 

Wallace,  169. 
1907.  May  23,  P.  L.  206.    Public  Officers.    Thomas  v. 

Connell,  242. 
1911.  March  15,  P.  L.  20.     Criminal  Law.     Com.  v. 

Brown,  85. 
1911.  May  5,  P.  L.  126.    Attachment  Execution.    Du- 

quesne  Bond  Corp.  v.  Am.  Surety  Co.  of  N.  Y., 

203. 
1913.  July  26,  P.  L.  1374.    Railroads.    Pittsburgh  &  L. 

E.  R.  R.  Co.  v.  S.  S.  R.  R.  Co.,  162. 
1915.  May  14,  P.  L.  483.    Practice,  C.  P.    Federal  Sales 

Co.  of  Phila.  v.  Farrell,  149. 
1915.  May  14,  P.  L.  483.    Practice.   Landell  v.  Lybrand, 

406. 
1915.  May  14,  P.  L.  483.    Practice,  C.  P.    Shifferstine  v. 

Sitler,  290. 
1915.  May  19,  P.  L.  543.    Sale.    Griffin  v.  Metal  Product 

Co.,  254. 
1915.  May  28,  P.  L.  576.    Injunction.    Winston  v.  Lad- 

nerf  548. 
1915.  June  1,  P.  L.  685.    Eminent  Domain  Whitcomb  v. 

Phila.,  277. 
1915.  June  2,  P.  L.  736.     Workmen's  Compensation. 

Clark  v.  Lehigh  Valley  Coal  Co.,  529. 
1915.  June  2,  P.  L.  736.     Workmen's  Compensation. 

Neary  v.  Phila.  C.  &  I.  Co.,  221. 
1917.  July  11,  P.  L.  755.    Decedents'  Estates.    CarrelFs 

Est,  140. 
1917.  April  26,  P.  L.  102.  Appeals.    Bergman  v.  Strauss, 

439. 
1917.  June  7,  P.  L.  429.    Decedents'  Estates.    CarrelPs 

Est,  140. 


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TABLE  OF  CASES  CITED. 

1917.  June  7,  P.  L.  415.    Decedents'  Estates.    Winsor's 

Est.,  652. 
1917.  June  7,  P.  L.  447.   Wills.   Johnston's  Est,  71. 


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CASES 

IN 

THE  SUPREME  COURT 

OF 

PENNSYLVANIA 


Faber  v.  Gimbel  Brothers,  Appellant 

Negligence — Damage*  —  Personal  injury  —  Decreased  earning 
power — Person  engaged  in  a  small  business — Profits — Evidence. 

1.  Evidence  of  earnings  from  a  small  business  in  which  the 
plaintiff  was  engaged  as  a  partner  before  and  after  the  accident,  is 
admissible  to  show  decreased  earning  power  as  the  result  of  an 
injury,  where  it  appears  that  the  business,  which  had  only  a  nomi- 
nal capital,  required  plaintiffs  entire  time,  labor  and  skill  and  had 
no  earning  power  except  that  resulting  from  profits  from  such 
labor  and  skill,  since  in  no  other  way  could  the  decreased  earning 
power  be  shown. 

Negligence — Damages — Present  value  tables — Actions  for  per- 
sonal injuries — Partial  disability  —  Evidence  —  Inaccurate  use  of 
tables — Remarks  of  counsel. 

2.  Tables  showing  the  present  value  of  a  fixed  sum  of  money 
payable  in  weekly  installments  during  a  period  of  years  represent- 
ing the  expectation  of  life  of  the  plaintiff,  according  to  the  mor- 
tality tables,  are  admissible  in  evidence  in  actions  for  damages  for 
personal  injuries  resulting  in  partial  impairment  of  earning  ca- 
pacity, as  well  as  in  cases  of  total  disability. 

3.  An  inaccurate  use  of  figures  by  counsel  in  addressing  the  jury 
as  to  the  use  of  the  value  tables,  is  not  ground  for  reversal,  where 
it  does  not  appear  that  the  jury  were  misled,  or  that  they  adopted 
the  method  used  by  counsel  in  his  illustration,  and  it  did  appear 
that  the  jury  had  the  tables  before  them  in  their  deliberations, 
and  that  they  could  see  for  themselves  at  a  glance,  the  present 
value  of  a  sum  of  money  for  a  given  number  of  years. 

Vol.  oclxiv— 1  (1) 

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2  FABER  v.  GIMBEL  BROTHERS,  Appellant. 

Statement  of  Facts— Arguments.  [264  Pa, 

Argued  Jan.  20, 1919.  Appeal,  No.  130,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  2,  Philadel- 
phia Co.,  June  T.,  1917,  No.  1644,  on  a  verdict  for  plain- 
tiff in  the  case  of  Morris  Faber  v.  Gimbel  Brothers.  Be- 
fore Stewart,  Frazer,  Waujing,  Simpson  and  Kbp- 
haet,  J  J.    Affirmed. 

Trespass  for  damages  for  personal  injuries.  Before 
Babbatt,  P.  J. 

Verdict  for  plaintiff  for  $15,500,  upon  which  judg- 
ment was  entered. 

Errors  assigned  were  rulings  on  evidence,  and  refus- 
ing to  withdraw  a  juror  on  account  of  remarks  of  coun- 
sel. 

Ralph  B.  Evans,  of  Prichard,  Saul,  Bayard  &  Evans, 
and  Hampton  L.  Carson,  with  them  W.  W.  Smithers,  for 
appellant. — The  court  erred  in  admitting  evidence  of 
plaintiff's  earnings  from  a  partnership  with  invested 
capital:  Boggess  v.  B.  &  O.  R.  R.  Co.,  234  Pa.  379;  Gil- 
more  v.  Phila.  Rapid  Transit  Co.,  253  Pa.  543. 

The  admission  of  the  table  of  present  values  was  im- 
proper: Seeherman  v.  Wilkes-Barre  Co.,  255  Pa.  11; 
Kerrigan  v.  Pennsylvania  R.  R.,  194  Pa.  98;  Fletcher  v. 
Wilmington  Steamboat  Co.,  261  Pa.  1. 

This  court  has  consistently  frowned  upon  anything  in 
the  nature  of  an  attempt  to  suggest  to  the  jury  the 
amount  of  their  verdict  in  a  negligence  case :  Quinn  v. 
Phila.  Rapid  Transit  Co.,  224  Pa.  162 ;  Hollinger  v.  York 
Rys.  Co.,  225  Pa.  419;  Connelly  v.  Pittsburgh  Rys.  Co., 
230  Pa.  366. 

Augustus  Trash  Ashton,  with  him  Victor  Frey,  for  ap- 
pellee.— Evidence  of  amount  of  earnings  was  competent: 
Boggess  v.  B.  &  O.  R.  R.  Co.,  234  Pa.  389;  Wallace  v. 
Penna.  R.  R.,  195  Pa.  129 ;  McLane  v.  Pittsburgh  Rys. 
Co.,  230  Pa.  29. 


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FABER  v.  GIMBEL  BROTHERS,  Appellant.  3 

1919.]  Arguments — Opinion  of  the  Court. 

The  present  value  tables  are  admissible  in  evidence : 
Fletcher  v.  Wilmington  Steamboat  Co.,  261  Pa.  1;  Si- 
korski  v.  Phila.  &  Reading  R.  R.,  260  Pa.  243;  Seeher- 
man  v.  Wilkes-Barre  Co.,  255  Pa.  11. 

Opinion  by  Mb.  Justice  Fbazeb,  February  17, 1919 : 

Plaintiff  sued  to  recover  damages  for  injuries  sus- 
tained from  being  run  over  by  defendant's  motor  truck. 
The  trial  resulted  in  a  verdict  in  plaintiff's  favor.  It  is 
conceded  the  question  of  responsibility  for  the  accident 
was  one  for  the  jury,  and  the  only  questions  discussed  in 
this  appeal  relate  to  the  measure  of  damages. 

The  facts  are  as  follows :  Plaintiff  was  engaged  in  re- 
pairing automobile  radiators  in  partnership  with  an- 
other. Both  members  of  the  firm  gave  their  entire  time 
to  the  business,  and  together  performed  all  repair  work 
entrusted  to  them.  The  capital  invested  was  $800,  which 
was  expended  for  necessary  tools,  fixtures  and  materials, 
each  contributing  one-half  the  required  amount.  Plain- 
tiff testified  he  realized  from  $35  to  $40  a  week  from  the 
business  after  all  expenses  were  deducted,  and  as  a  re- 
sult of  his  injuries  was  unable  to  perform  work  requir- 
ing physical  strength,  but  visited  his  place  of  business, 
with  more  or  less  regularity,  with  the  aid  of  crutches. 
The  firm  was  dissolved  shortly  after  the  accident,  plain- 
tiff purchasing  the  interest  of  the  partner  for  $150,  the 
partner  also  receiving  a  portion  of  the  tools  used  in  the 
business.  Following  the  dissolution  of  the  firm  plaintiff 
employed  a  workman  whom  he  paid  $20  a  week  and  had 
left  from  $10  to  $15  weekly  for  himself,  as  the  net  earn- 
ings of  his  business. 

Defendant  objected  to  this  testimony  as  proof  of  earn- 
ing capacity,  averring  it  permitted  a  plaintiff  to  show 
net  profits  derived  from  a  business,  contrary,  as  alleged, 
to  the  general  rule  of  law  heretofore  laid  down  by  this 
court.  It  is  apparent,  however,  that  returns  from  busi- 
ness, under  the  circumstances  of  this  case,  were  not 
profits  in  a  technical  sense  derived  from  investment  of 


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4  FABER  v.  GIMBEL  BROTHERS,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

capital,  but  were  the  direct  result  of  the  personal  labor 
and  skill  of  plaintiff  in  conducting  his  business.  The 
capital  invested  was  nominal  merely  and  represented 
the  purchase  of  tools  and  materials  and  also  such  fix- 
tures as  were  necessary  and  incident  to  the  employment. 
The  income  derived  depended  solely  upon  the  use  of  the 
tools  for  the  purpose  intended  and  the  element  of  per- 
sonal labor  and  skill  on  part  of  plaintiff  and  his  partner 
in  performing  the  labor  incident  to  the  business.  In 
other  words,  the  income  derived  was  substantially  the 
fruit  or  reward  of  their  labor,  the  price  for  services  per- 
formed. This  does  not  conflict  with  the  general  rule 
laid  down  in  Goodhart  v.  Penna.  R.  R.,  177  Pa.  1, 15,  and 
followed  in  many  subsequent  cases,  to  the  effect  that 
loss  of  profits  of  a  business  cannot  be  considered  as  an 
element  of  damage,  but  is  a  well-known  exception  based 
on  a  recognition  of  the  fact  that  in  no  other  way  can  the 
earning  power  be  shown  of  one  engaged  in  a  small  busi- 
ness, requiring  his  entire  time,  labor  and  skill  and  having 
no  earnings  except  those  resulting  from  profits  derived 
from  such  labor  and  skill,  be  shown :  Boggess  v.  B.  &  O. 
R.  R.,  234  Pa.  379;  Gilmore  v.  Phila.  Rapid  Transit  Co., 
253  Pa.  543,  550. 

Objection  is  made  to  the  admission  in  evidence  of  a 
table  showing  the  present  values  of  a  fixed  sum  of  money 
payable  in  weekly  installments  during  a  period  of  years 
from  one  to  twenty-nine,  the  latter  being  the  expectation 
of  life  of  plaintiff  according  to  the  mortality  tables.  Ap- 
pellant concedes  tables  of  this  character  are  competent 
in  a  proper  case,  in  view  of  the  language  of  this  court  in 
Seeherman  v.  Wilkes-Barre  Co.,  255  Pa.  11,  17,  and  the 
rulings  in  Fletcher  v.  Wilmington  Steam  Boat  Co.,  261 
Pa.  1,  6.  But  it  is  argued  that  the  principles  stated 
in  those  decisions  should  be  limited  to  total  disabili- 
ty. No  adequate  reason  is  given  for  making  the  distinc- 
tion suggested  and  on  principle  none  appears  to  exist. 
In  either  case,  the  question  to  be  answered  is  merely  the 
present  value  of  such  sum  of  money  as  the  jury  may 


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FABER  v.  GIMBEL  BROTHERS,  Appellant.  5 

1919.]  Opinion  of  the  Court. 

award  plaintiff,  and  the  present  value  tables  do  not 
enter  into  the  ascertainment  of  that  sum,  but  are  called 
into  use  after  the  amount  of  weekly,  monthly  or  yearly 
loss,  as  the  case  may  be,  has  been  fixed  from  a  con- 
sideration of  the  testimony.  Unlike  the  mortality 
tables,  the  present  value  tables  are  not  intended  to  es- 
tablish expectancy  of  life ;  they  are  merely  mathematical 
computations  applicable  in  any  case,  after  their  accuracy 
and  relevancy  have  been  established,  to  aid  the  jury  in 
making  calculations  they  would  otherwise  be  obliged  to 
make  for  themselves,  and,  consequently,  involving  a  tedi- 
ous process.  There  is  no  difference  in  principle  whether 
the  injuries  suffered  by  plaintiff  resulted  in  a  total  or 
only  partial  impairment  of  his  earning  capacity.  In 
either  case  the  first  question  is  the  extent  of  loss  of 
earning  power  resulting  from  the  accident  either  weekly, 
monthly  or  yearly,  as  the  case  may  be,  the  length  of  time 
the  impairment  will  probably  continue,  and  the  depreci- 
ation of  earnings  by  reason  of  advancing  age  and  other 
matters  proper  to  be  considered ;  after  this  sum  has  been 
fixed,  the  present  value  tables  may  be  resorted  to  for 
the  purpose  of  making  a  mathematical  calculation,  based 
on  expectancy  of  plaintiff's  impairment,  which  may  or 
may  not  be  the  full  number  of  years  allowed  by  the  mor- 
tality tables,  depending  upon  the  condition  of  his  health, 
his  occupation,  manner  of  living,  etc.  In  Kerrigan  v. 
Penna.  R.  R.,  194  Pa.  98,  the  reason  for  excluding  an- 
nuity tables  was  that  they  were  based  on  the  same  theory 
as  mortality  tables,  and  represented  the  cost  of  pur- 
chasing an  annuity  of  a  stipulated  amount,  payable  dur- 
ing the  lifetime  of  a  particular  person  and,  in  making  up 
the  table  there  necessarily  entered  into  it  a  calculation 
of  the  element  of  expectancy  of  life  of  the  annuitant  in 
the  same  manner  as  the  mortality  tables.  In  the  value 
table,  offered  in  this  case,  there  is  no  element  of  insur- 
ance or  expectation  of  life,  it  merely  sets  out  a  mathe- 
matical calculation  of  the  present  values  based  upon  the 
arbitrary  sum  of  $100  per  year. 


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6  FABER  v.  GIMBEL  BROTHERS,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

Objection  is  also  made  to  the  remarks  of  counsel  for 
plaintiff  in  his  address  to  the  jury,  owing  to  inaccuracies 
in  the  use  -of  figures  based  on  the  value  tables,  and  used 
to  illustrate  the  method  of  applying  them.  Counsel 
stated  the  present  value  of  $  1,000  a  year  to  be  ten  times 
the  present  value  or  $  100  a  year,  or  $ 975,  and  the  present 
value  for  a  period  of  ten  years  to  be  ten  times  the  pres- 
ent value  of  the  same  amount  for  the  period  of  one  year. 
As  a  matter  of  fact,  the  present  value  of  $  100  for  one 
year,  according  to  the  table,  is  f  97.50,  while  the  present 
value  for  ten  years  is  $ 790.95.  There  is  no  doubt  as  to 
the  incorrectness  of  the  illustration  used  by  counsel;  it  is 
not  apparent,  however,  that  his  mistake  prejudiced  de- 
fendant. The  jury  had  the  table  before  them  in  their  de- 
liberations, the  trial  judge  charged  upon  it  with  caution, 
and  they  could  see  for  themselves,  at  a  glance,  the  actual 
present  value  of  $  100  for  a  period  of  from  one  to  twenty- 
nine  years.  We  find  nothing  in  the  record  to  indicate 
and  there  is  no  reason  to  believe  they  adopted  the  method 
used  by  counsel  in  his  illustration,  and  multiplied  the 
present  value  for  one  year  by  the  number  of  years  of 
plaintiffs  expectation  of  life,  since  the  table  contained 
the  figures  already  computed  for  any  number  of  years 
they  might  find  plaintiff  would  live.  The  court  stated, 
on  a  motion  for  a  new  trial,  that  the  evidence  justified 
a  finding  of  total  loss  of  earning  power,  and  that  the 
amount  of  the  verdict  was  reasonable  and  fair  under  all 
the  circumstances,  and  in  view  of  the  nature  of  plaintiffs 
injuries.  It  does  not  appear,  therefore,  that  defendant 
was  harmed  by  the  illustration  given  by  counsel  for 
plaintiff.  On  this  view  of  the  case  we  deem  it  unneces- 
sary to  consider  whether  the  remarks  complained  of  were 
properly  made  a  part  of  the  record. 
I    |The  judgment  is  affirmed. 


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WINCH,  Appellant,  v.  PHILADELPHIA.  7 

1919.]  Syllabus — Opinion  of  the  Court. 

Winch,  Appellant,  v.  City  of  Philadelphia. 

Municipal  corporations — Firemen — Discharge — Reinstatement — 
Bach  wages. 

A  city  fireman  who  was  discharged  from  service  after  he  was 
found  guilty,  by  the  firemen's  court,  of  certain  charges  preferred 
against  him  is  not  entitled  to  recover  back  pay  from  the  city  after 
he  has  been  reinstated  by  a  subsequent  court,  which  reheard  the 
charges  upon  which  he  had  been  found  guilty  by  the  previous 
court,  where  no  appeal  was  ever  taken  from  the  action  of  the  first 
court,  since  the  effect  of  his  discharge  was  to  dissolve  and  terminate 
all  relations  between  the  city  and  him  in  the  matter  of  employment 
and  a  subsequent  reemployment  constituted  a  new  contract  creating 
new  duties  having  no  relation  to  the  former  contract. 

Argued  Jan.  21, 1919.  Appeal,  No.  136,  Jan.  T.,  1919, 
by  plaintiff,  from  judgment  of  C.  P.  No.  3,  Philadelphia 
Co.,  Dec.  T.,  1917,  No.  3447,  directing  a  verdict  for  de- 
fendant in  case  of  Carl  Winch  y.  City  of  Philadelphia. 
Before  Stewart,  Moschzisker,  Frazbr,  Walling  and 
Simpson,  JJ.   Affirmed. 

Assumpsit  to  recover  salary  alleged  to  be  due.  Before 
Davis,  J. 

The  court  gave  binding  instructions  for  defendant. 

The  court  overruled  plaintiffs  motion  for  a  new  trial 
and  for  judgment  non  obstante  veredicto.  Plaintiff  ap 
pealed. 

Errors  assigned  were  answers  to  requests  for  instruc- 
tions and  refusal  of  plaintiffs  motion  for  judgment  n.  o.  v. 

Joseph  M.  Smith,  for  appellant. 

D.  J.  Callaghan,  Assistant  City  Solicitor,  with  him 
John  P.  Connelly,  City  Solicitor,  for  appellee. 

Opinion  by  Mr.  Justice  Stewart,  February  17, 1919  : 

The  plaintiff  was  an  employee  in  the  fire  department 

of  the  City  of  Philadelphia,  having  been  appointed  to  the 


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8  WINCH,  Appellant,  v.  PHILADELPHIA. 

Opinion  of  the  Court.  [264  Pa. 

position  of  fireman  in  November,  1911.  In  May,  1913, 
certain  charges  having  been  preferred  against  him  he 
was  tried  by  the  firemen's  court  of  trial,  was  found 
guilty,  and  was  thereupon  discharged  from  the  service. 
No  appeal  was  ever  taken  from  the  action  of  the  court 
of  trials  and  the  plaintiff  thereupon  ceased  to  have  fur- 
ther connection  with  the  department.  A  subsequent  court, 
whether  composed  of  the  same  or  different  triers  does 
not  appear,  was  convened  in  May,  1916,  and  proceeded  to 
rehear  the  charges  of  which  plaintiff  had  been  found 
guilty  by  the  previous  court,  and  reinstated  him  in  his 
former  position.  What  the  considerations  were  that 
led  the  earlier  court  to  pronounce  him  guilty  and  dis- 
charge him  from  the  service,  or  what  the  considerations 
were  that  led  the  later  court  to  reinstate  him  are  not 
matters  for  inquiry  here.  The  conclusions  of  the  later 
court,  or  the  fact  that  plaintiff  was  reinstated  three 
years  after  his  discharge,  can  have  no  bearing  upon  the 
single  question  presented  on  the  record.  The  plaintiff 
brought  his  action  against  the  city  to  recover  salary 
that  would  have  accrued  between  the  date  of  his  dis- 
charge and  the  time  of  his  restoration  had  he  remained 
in  service.  On  the  trial  the  defendant  introduced  in 
evidence  a  paper  executed  by  the  defendant  on  April 
17th,  the  day  on  which  the  later  court  restored  him  to 
his  place,  which  reads  as  follows :  "In  the  event  of  my 
reinstatement  as  a  hoseman  of  the  Bureau  of  Fire  I 
hereby  waive  any  and  all  claims  that  I  may  have  for 
back  pay,  and  hereby  release  and  discharge  the  City  of 
Philadelphia  from  payment  of  the  same.  Signed,  Carl 
Winch."  At  the  conclusion  of  the  hearing  the  trial  judge 
directed  a  verdict  in  favor  of  defendant.  This  was  fol- 
lowed by  a  motion  for  a  new  trial  which  was  dismissed 
and  a  motion  for  judgment  n.  o.  v.  which  was  overruled. 

The  ground  taken  in  support  of  the  appeal  is  that 
the  written  release  signed  by  the  plaintiff  of  all 
claims  for  back  pay  is  against  public  policy  and  there- 


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WINCH,  Appellant,  v.  PHILADELPHIA.  9 

1019.]  Opinion  of  the  Court. 

fore  void.  The  answer  given  by  the  court  in  its  opinion 
filed  refusing  plaintiff's  motion  is,  "We  cannot  agree 
that  this  case  comes  within  the  cases  cited  in  which  it 
has  been  held  that  agreements  calculated  to  impede  the 
regular  administration  of  justice  are  void  as  against 
public  policy."  This  raises  a  question  which,  though 
decided  in  the  way  for  which  plaintiff  contends,  would 
not  have  availed  him  anything,  seeing  that  there  was 
quite  sufficient  in  the  case  without  it  to  warrant  binding 
instructions  for  the  defendant.  Binding  instructions, 
entered  for  good  reasons,  will  not  be  disturbed  because 
the  court  relied  upon  wrong  reasons :  Holmes  v.  Trac- 
tion Company,  199  Pa.  229.  Here  there  was  no  cause 
of  action.  The  plaintiff  was  not  temporarily  suspended 
from  exercising  his  office  or  place,  but  was  finally  dis- 
charged from  the  city's  employment.  This  much  is  not 
questioned.  The  effect  was  to  dissolve  and  terminate  all 
relations  between  the  city  and  him  in  the  matter  of  the 
employment  in  which  he  had  served.  A  subsequent  re- 
employment of  the  plaintiff  in  the  same  service  would  be 
a  new  contract  creating  new  duties  and  obligations  hav- 
ing no  relation  whatever  to  the  former  contract.  The 
legality  of  the  discharge  and  the  proceedings  which  led 
up  to  it  were  never  challenged.  Whether  the  release 
executed  by  the  defendant  was  valid,  is  a  question  aside 
from  the  case,  and  we  do  not  feel  called  upon  to  dis- 
cuss it. 
The  judgment  is  affirmed. 


Permutit  Co.  v.  Wallace,  Appellant 

'Affidavit  of  defense  —  Sufficiency  —  Vague  and  indefinite  aver- 
menti — Action  for  purchase  price — Failure  to  deliver  article  con- 
tracted for — Contract — Certificate  of  architect. 

1.  In  an  action  for  balance  of  purchase  price  of  water  soften- 
ing filter  plant  which  the  plaintiff  delivered  under  a  contract 


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10  PERMUTIT  CO.  v.  WALLACE,  Appellant. 

Syllabus— Arguments.  [264  Pa. 

which  merely  called  for  a  filter  seven  feet  six  inches  inside  diame- 
ter and  sixteen  feet  high  with  a  capacity  of  100,000  gallons  in 
twelve  hours,  an  affidavit  of  defense  is  insufficient,  which  avers 
that  plaintiff  failed  to  deliver  a  filter  of  the  required  dimensions 
of  sixteen  feet  from  the  "bottom  to  the  top  of  the  well"  and 
instead  delivered  one  of  a  different  capacity  and  size,  namely, 
14  feet  %Ys  inches  "outside  height  from  the  bottom  to  the  top  of 
the  swell  of  the  top  and  bottom"  without  any  averment  that  in 
the  trade  a  16-foot  filter  meant  16  feet  from  the  "bottom  to  the 
top  of  the  swell"  and  without  averment  as  to  the  inside  diameter, 
nor  an  averment  that  the  filter  did  not  have  a  capacity  of  100,000 
gallons  in  twelve  hours  as  provided  in  the  contract. 

2.  Where  the  purchase  price  became  due  absolutely  by  the  terms 
of  the  contract  within  a  stated  time  after  delivery  of  the  materials, 
it  seems  that  defendant  would  not  be  relieved  of  his  obligation  to 
pay  by  the  absence  of  an  architect's  certificate,  if  the  architect  was 
no  longer  in  defendant's  employ. 

Argued  Jan.  21, 1919.  Appeal,  No.  140,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  3,  Philadelphia 
Co.,  Jan.  T.,  1918,  No.  539,  for  want  of  a  sufficient  affi- 
davit of  defense  in  the  case  of  the  Permutit  Company  v. 
Richard  L.  Wallace,  trading  as  Richard  L.  Wallace  & 
Co.  Before  Stewabt,  Moschzisker,  Frazbr,  Walling 
and  Simpson,  JJ.   Affirmed. 

Action  in  assumpsit  to  recover  balance  of  purchase 
price  for  a  filter  plant.    Before  Ferguson,  J. 

Rule  for  judgment  for  want  of  a  sufficient  affidavit  of 
defense  made  absolute.  Damages  assessed  at  $ 2,000.54. 
Defendant  appealed. 

Error  assigned  was  in  entering  judgment  for  want  of 
a  sufficient  affidavit  of  defense. 

Joseph  W.  Kenworthy,  with  him  Caroline  K.  Kenr 
worthy,  for  appellant. 

George  J.  Edwards,  Jr.,  with  him  Eazelton  Mirkil,  Jr., 
for  appellee. 


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PERMUTIT  CO.  v.  WALLACE,  Appellant.  11 

1919.]  Opinion  of  the  Court. 

Opinion  by  Mb.  Justice  Fbazeb,  February  17, 1919 : 

This  appeal,  by  defendant,  is  from  the  action  of  the 
court  below  making  absolute  a  rule  for  judgment  for 
want  of  a  sufficient  affidavit  of  defense  in  an  action  for 
the  balance  of  the  purchase  price  of  a  water  softening 
filter  plant. 

The  contract  called  for  installation  of  a  filter  seven 
feet  six  inches  inside  diameter  and  sixteen  feet  high, 
with  a  guaranteed  capacity  of  100,000  gallons  in  twelve 
hours;  the  apparatus,  materials  and  installment  to  be 
subject  to  the  approval  and  satisfaction  of  defendant's 
mill  engineer  and  architect;  acceptance  of  the  appa- 
ratus to  be  on  written  notice  from  the  architect.  The 
contract  price  was  $ 6,570,  to  be  paid :  $3,000,  on  delivery 
of  the  materials  at  defendant's  plant;  $1,600,  sixty  days 
thereafter,  and  the  balance  in  ninety  days. 

Plaintiff's  statement  averred  that  on  January  15, 1916, 
it  delivered  all  necessary  materials  at  defendant's  plant 
and  received  the  sum  of  $3,000  upon  certificate  of  the 
architect,  as  per  agreement,  and  that  on  April  24th  fol- 
lowing it  received  a  further  sum  of  $1,600,  pursuant  to 
certificate  of  the  architect  issued  March  15th.  On  April 
15,  1916,  a  further  certificate  for  the  final  payment  was 
given  by  the  architect,  who  called  attention  of  plaintiff 
to  the  fact  that  the  provisions  of  the  contract  did  not 
contemplate  delay  in  settlement  until  the  equipment  was 
in  service  and  that  payment  of  the  final  installment  must 
not  be  considered  as  acceptance  of  defective  work,  or 
relieve  from  the  guaranty  of  the  operation  of  the  plant. 

The  affidavit  of  defense  avers  plaintiff  failed  to  de- 
liver a  filter  of  the  required  dimensions  but  instead  de- 
livered one  of  a  different  capacity  and  size,  namely,  four- 
teen feet  three  and  one-eighth  inches  "outside  height 
from  the  bottom  to  the  top  of  the  swell  of  the  top  and  bot- 
tom" whereas  plaintiff  agreed  to  deliver  a  filter  sixteen 
feet  in  height  on  the  main  part,  not  inclusive  of  the 
swell  of  the  top  and  bottom,  and  "the  filter  delivered  is 
therefore  not  in  accord  with  size,  measurement  or  ca- 


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12  PEEMUTIT  CO.  v.  WALLACE,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

pacity  with  the  filter  which  plaintiff  agreed  to  deliver." 
Reference  to  the  contract  fails  to  confirm  this  allegation. 
That  writing  merely  calls  for  a  filter  sixteen  feet  in 
height.  There  is  no  averment  that  in  the  trade  a  sixteen- 
foot  filter  meant  sixteen  feet  from  the  "bottom  to  the  top 
of  the  swell.,,  We  find  no  explanation  of  this  equivocal 
statement.  Nor  does  the  affidavit  give  the  inside  diam- 
eter. Neither  is  it  alleged  the  filter  did  not  have  a  ca- 
pacity of  100,000  gallons  in  twelve  hours  as  provided  in 
the  contract.  The  same  general  vague  and  defective  aver- 
ments appear  in  the  statement  of  counterplaint.  Such 
allegations  are  entirely  too  evasive  and  indefinite  to  form 
the  basis  of  a  conclusion  that  the  filter  furnished  by 
plaintiff  was  not  substantially  identical  with  the  one 
described  in  the  contract. 

In  view  of  the  insufficiency  of  the  affidavit  to  estab- 
lish a  failure  to  deliver  the  filter  in  accordance  with"  the 
agreement,  consideration  of  the  insufficiency  of  the  ex- 
cuse for  delay  in  rescinding  the  contract  is  unnecessary, 
besides  no  ground  for  the  rescission  appears. 

Defendant  also  alleges  that  before  the  voucher  author- 
izing final  payment  was  issued  by  the  architect  his  busi- 
ness relations  with  defendant  had  ceased,  and  he  was  at 
the  time  without  authority  to  furnish  a  certificate  and 
bind  defendant.  The  amount  certified  under  the  con- 
tract, however,  was  in  fact  due,  as  shown  above;  ac- 
cordingly no  adequate  defense  was  made  to  appear. 
Payment  was  not  in  any  sense  dependent  upon  the  ac- 
ceptance of  the  apparatus  by  defendant.  In  fact,  the 
form  of  voucher  expressly  provided  that  payment  should 
not  be  considered  as  an  acceptance  of  defective  work. 
The  money  became  due  absolutely  by  the  terms  of  the 
contract  within  a  stated  time  after  delivery  of  the  ma- 
terials on  the  ground  and  if,  as  averred  by  defendant, 
the  architect  was  no  longer  in  his  employ,  defendant 
would  not  be  relieved  of  his  obligation  to  pay  by  the  ab- 
sence of  such  certificate.  This  obligation  was  recognized 
by  defendant  in  his  letter  of  April  26, 1918.     Accordingly, 


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PBEMUTIT  CO.  v.  WALLACE,  Appellant.  13 

1919.]  Opinion  of  the  Court 

he  was  not  harmed  in  any  manner  by  the  act  of  the  archi- 
tect even  though  committed  without  authority  and  after 
his  employment  by  defendant  had  terminated.  Regard- 
less of  this  question,  however,  inasmuch  as  the  aver- 
ments referring  to  the  nondelivery  of  the  device  con- 
tracted for  are  insufficient  and,  consequently,  the  money 
actually  due,  the  question  of  authority  of  the  architect 
becomes  immaterial. 

The  judgment  of  the  court  below  is  affirmed. 


McMillen,  Admr.,  Appellant,  v.  Strathmann, 
Jr.,  Admr, 

Negligence— Automobile — Collision  with  pedestrian  —  Children 
crossing  street— Control  of  car — Speed. 

1.  Although  the  driver  of  an  automobile  truck  upon  seeing  a 
child  run  across  the  street  is  bound  to  use  care,  he  is  not  bound  to 
anticipate  that  the  child  will  run  back  across  the  street  in  front  of 
the  truck. 

2.  In  an  action  for  injuries  to  a  child  by  being  struck  by  an 
automobile  truck  while  attempting  to  cross  the  street  in  the  mid- 
dle of  the  block,  the  trial  judge  properly  instructed  the  jury  that 
the  driver  was  not  compelled  at  all  times  to  run  so  slowly  that  he 
could  stop  instantly,  but  that  it  was  his  duty  to  bear  in  mind  that 
children  are  apt  to  run  into  the  street  and  to  keep  his  machine 
under  control  so  as  to  be  able  to  stop  in  a  reasonable  time  in  an 
emergency,  and  that  if  he  saw  the  danger  in  time  he  should  so  con- 
trol his  car  as  to  stop  and  avoid  the  accident. 

8.  In  such  a  case  it  is  proper  to  instruct  the  jury  that  "unless 
you  find  that  the  automobile  truck  of  the  defendant  was  being 
driven  at  the  time  of  the  accident  at  an  excessive  and  dangerous 
rate  of  speed,  or  that  the  boy  was  standing  or  playing  in  the  road- 
way a  sufficient  length  of  time  for  the  driver  to  have  seen  him  and 
stopped,  then  the  verdict  must  be  for  the  defendant." 

Practice,  Supreme  Court — Appeals — Errors  by  trial  judge  in 
commenting  on  testimony — Necessity  of  calling  judge's  attention 
to  the  mistake. 

4.  Mistakes  made  by  the  trial  judge  in  the  statement  of  the 
testimony  to  the  jury  cannot  be  taken  advantage  of  on  appeal 
where  his  attention  was  not  called  thereto  at  the  time,  since  a  party 


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14    McMILLBN,  Admr.,  Appel.,  v.  STRATHMANN,  Admr. 

Syllabus — Arguments.  [264  Pa. 

may  not  sit  silent  and  take  his  chance  of  a  verdict,  and  then,  if  it 
is  adverse,  complain  of  a  matter  which,  if  an  error,  would  have 
been  immediately  rectified  and  made  harmless. 

Practice,  Supreme  Court — Assignments  of  error — Charge  of  the 
court. 

5.  The  Supreme  Court  will  not  consider  a  complaint  that  the 
charge  of  the  court  was  inadequate,  where  the  charge  is  not  quoted 
in  the  assignment  of  error. 

Evidence — Conversation — Res  gestm — Narration  of  past  event. 

6.  Evidence  as  to  a  conversation  between  a  witness  and  the  driver 
of  an  automobile  is  incompetent  in  an  accident  case,  where  the 
circumstances  are  not  brought  out  so  as  to  show  whether  it  was  a 
part  of  the  res  gestae  or  the  narration  of  past  events. 

Argued  Jan.  21, 1919.  Appeal,  No.  142,  Jan.  T.,  1919, 
by  plaintiff,  from  judgment  of  C.  P.  No.  5,  Philadelphia 
Co.,  Sept.  T.,  1917,  No.  6158,  on  a  verdict  for  defendant 
in  case  of  William  McMillen,  Administrator  of  the  Es- 
tate of  John  McMillen,  deceased,  v.  Henry  E.  Strath- 
mann,  Jr.,  Administrator  of  the  Estate  of  Henry  E. 
Strathmann,  deceased.  Before  Stewart,  Moschzisker, 
Frazer,  Walling  and  Simpson,  JJ.    Affirmed. 

Trespass  for  the  death  of  a  child  caused  by  being 
struck  by  an  automobile  truck.    Before  Martin,  P.  J. 

The  verdict  was  for  defendant  and  judgment  was  en- 
tered thereon. 

The  court  overruled  the  plaintiff's  motion  for  a  new 
trial.    Plaintiff  appealed. 

Errors  assigned  were  instructions  to  the  jury,  and 
rulings  on  evidence. 

William  Linton,  for  appellant. 

Robert  T.  HfcCraeken,  with  him  Roberts,  Montgomery 
&  McKeehan,  for  appellee. 


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MoMILLEN,  Admr.,  Appel.,  v.  STRATHMANN,  Admr.    15 
1919.]  Opinion  of  the  Court 

Opinion  by  Mb.  Justice.  Walling,  February  17, 1919 : 
This  is  an  action  of  trespass  for  personal  injuries.  At 
the  time  in  question  John  McMillen  was  five  and  one-half 
years  of  age  and  resided  with  his  parents  in  Philadelphia 
on  the  west  side  of  Amber  street,  which  was  of  the  width 
of  forty  feet  with  a  paved  cartway  twenty  feet  wide  in 
the  center  thereof.  On  the  afternoon  of  November  19, 
1917,  John  left  his  yard  and  ran  across  the  street  to  the 
east  curb  where  there  was  another  small  boy,  and  then 
turned  and  ran  back  across  the  street  and  as  he  did  so 
was  struck  by  a  northbound  autocar  truck  owned  by 
Henry  E.  Strathmann,  now  deceased.  The  truck  was 
heavily  loaded  with  sand,  and  the  boy  was  so  injured 
that  he  died  in  six  days.  This  suit  brought  before  his 
death,  alleged  negligence  on  behalf  of  the  driver  of  the 
truck.  The  appeal  is  by  plaintiff  from  judgment  entered 
on  a  verdict  for  the  defendant.  We  find  no  error  in  the 
record.  Unfortunately  the  child  ran  in  front  of  the 
truck  when  it  was  close  upon  him,  but  the  evidence  tend- 
ing to  show  negligence  of  the  driver  was  very  meagre. 
The  truck  was  not  running  more  than  ten  or  twelve 
miles  an  hour  and  was  stopped  within  less  than  its 
length.  It  was  some  forty  feet  away  when  the  boy  first 
crossed  the  street  and  there  is  no  contradiction  of  the 
driver's  evidence  that  he  then  sounded  his  horn.  Al- 
though required  to  use  care  he  was  not  bound  to  antici- 
pate that  the  boy  would  run  back  across  the  street  in 
front  of  the  truck,  but  when  he  attempted  to  do  so  the 
driver  turned  to  the  left  and  tried  to  avoid  the  accident. 
It  was  in  the  middle  of  the  block  and  no  other  vehicle 
near"  and  the  trial  judge  properly  instructed  the  jury 
that  the  driver  was  not  compelled  at  all  times  to  run  so 
slowly  that  he  could  stop  instantly,  but  that  it  was  his 
duty  to  bear  in  mind  that  children  are  apt  to  run  into 
the  street  and  to  keep  his  machine  under  control  so  as  to 
be  able  to  stop  in  a  reasonable  time  in  an  emergency,  and 
in  effect  that  if  he  saw  the  danger  in  time  he  should  have 
so  controlled  his  car  as  to  stop  and  avoid  the  accident 


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16  MoMILLBN,  Admr.,  Appel.,  v.  STRATHMANN,  Admr. 
Opinion  of  the  Court.  [264  Pa. 

The  instruction  was  also  proper  that  the  burden  of  proof 
was  upon  plaintiff  and  that  defendant  was  not  liable  un- 
less the  evidence  convinced  the  jury  that  the  accident 
resulted  from  the  driver's  negligence,  and  unless  he 
neglected  something  he  should  have  done  there  could  be 
no  recovery.  The  only  evidence  that  might  seem  to  sug- 
gest negligence  was  as  to  the  speed  of  the  truck  and 
failure  to  stop  in  time  to  avoid  the  accident,  so  the  af- 
firmance of  defendant's  third  point,  "Unless  you  find 
that  the  automobile  truck  of  the  defendant  was  being 
driven  at  the  time  of  the  accident  at  an  excessive  and 
dangerous  rate  of  speed  or  that  the  boy  was  standing  or 
playing  in  the  roadway  a  sufficient  length  of  time  for 
the  driver  to  have  seen  him  and  stopped,  then  the  verdict 
must  be  for  the  defendant,"  was  not  error. 

There  was  some  divergence  in  the  evidence  as  to  how 
near  the  truck  was  to  the  boy  when  he  started  back 
across  the  street;  statements  of  witnesses  as  to  that 
vary  from  perhaps  five  to  twenty-five  feet.  John  A. 
Ball  testifies  as  to  that  and  other  distances,  and  in  com- 
menting upon  his  testimony  the  trial  judge  was  in  error 
in  one  or  two  particulars;  but  his  attention  was  not 
called  thereto  at  the  time  and  it  is  now  too  *late.  "A 
party  may  not  sit  silent  and  take  his  chances  of  a  ver- 
dict, and  then  if  it  be  adverse,  complain  of  a  matter 
which  if  an  error  would  have  been  immediately  rectified 
and  made  harmless":  Commonwealth  v.  Bazmus,  210 
Pa.  609 ;  Nowlis  v.  Hurwitz,  232  Pa.  154 ;  Beznor  Mfg. 
Co.  v.  B.  &  L.  E.  B.  B.,  233  Pa.  369.  The  charge  did  not 
minimize  plaintiff's  evidence  nor  unduly  magnify  that 
for  the  defendant ;  and,  as  it  is  not  quoted  in  the  assign- 
ment of  error,  we  cannot  consider  the  complaint  that 
it  was  inadequate.  As  the  verdict  was  for  the  defendant, 
instructions  going  only  to  the  amount  of  damages  be- 
come immaterial. 

Plaintiff  asked  his  witness,  Charles  H.  Paul,  as  to  a 
conversation  between  himself  and  defendant's  driver,  ob- 
jection to  which  was  sustained.    Such  conversation  was 


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McMTLTiEN,  Admr.,  AppeL,  v.  STRATHMANN,  Admr.  17 
1919.]  Opinion  of  the  Court. 

competent  if  part  of  the  res  gestae  and  material  to  the 
case.  The  circumstances  were  not  brought  out  so  as  to 
show  whether  it  was  a  part  of  the  occurrence  or  the  nar- 
ration of  past  events ;  if  the  latter  it  was  not  competent. 
"If the  transaction  is  complete  and  ended,  its  end- 
ing marks  the  limitation  of  the  res  gestae  of  the  event, 
and  declarations  subsequent  thereto  become  merely  nar- 
rative of  past  matters":  from  opinion  by  Mr.  Justice 
Fbazbb  in  Leonard  v.  Bait.  &  Ohio  R.  R.  Co.,  259  Pa. 
51,  59.  There  was  no  statement  or  offer  as  to  the 
nature  of  the  proposed  conversation ;  the  trial  judge  did 
not  know  nor  do  we  that  it  was  relevant  to  the  case.  As 
the  driver,  who  was  a  witness  for  the  defense,  was  not 
asked  in  cross-examination  about  such  conversation  we 
may  assume  that  it  did  not  differ  materially  from  his 
testimony. 

We  have  not  found  it  necessary  to  consider  appellee's 
contention  that  a  verdict  should  have  been  directed  for 
the  defendant. 

The  assignments  of  error  are  overruled  and  the  judg- 
ment is  affirmed. 


Lamont  v.  Adams  Express  Co.,  Appellant. 

Negligence — City  streets — Pedestrian — Crossing  street  diagonal- 
ly— Approaching  automobile — Duty  to  look  behind. 

1.  A  pedestrian,  using  care  according  to  the  circumstances,  may 
lawfully  cross  a  city  street  at  any  point  between  as  well  as  at  public 
crossings,  and  may  do  so  directly  or  indirectly. 

2.  A  pedestrian  is  not  as  a  matter  of  law  negligent  in  failing 
to  look  behind  for  approaching  automobiles  while  crossing  a  street 
diagonally  at  a  point  which  is  not  a  crossing,  especially  where  he 
has  safely  passed  the  car  track  in  the  middle  of  the  street,  and  is 
facing  in  the  direction  that  traffic  might  be  looked  for  on  the  side 
of  the  street  upon  which  he  is  traveling. 

3.  A  pedestrian  is  not  as  a  matter  of  law  negligent  in  crossing 
a  city  street  where  an  approaching  automobile  is  in  plain  sight, 
since  the  speed  of  the  car,  the  distance  it  is  away,  and  the  side  of 

Vol.  cclxiv — 2 


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18     LAMONT  v.  ADAMS  EXPRESS  CO.,  Appellant. 

Syllabus — Assignment  of  Errors.  [264  Pa. 

the  street  upon  which  it  is  approaching  and  all  the  circumstances 
must  be  taken  into  consideration. 

Negligence — Collision— Automobile  truck  —  Pedestrian  —  Ques- 
tion for  jury. 

4.  The  question  of  defendant's  negligence  and  plaintiff's  con- 
tributory negligence  is  for  the  jury,  in  an  action  for  damages  for 
personal  injuries  sustained  by  a  plaintiff  by  being  struck  by  an 
electric  truck  while  attempting  to  cross  a  city  street  diagonally, 
where  plaintiff  testifies  that  he  looked  in  both  directions  for  ap- 
proaching vehicles,  and  seeing  none  he  started  across  the  street 
on  a  jog  trot,  and  that  on  account  of  public  garages  further  down 
the  street  in  the  same  block,  from  which  automobiles  were  liable 
to  emerge  and  come  down  the  street  suddenly,  he  kept  a  constant 
look  in  that  direction  and  did  not  look  back  in  the  direction  in 
which  defendant's  truck  was  proceeding,  which  had  turned  to  the 
left  side  of  the  street,  and  without  warning  struck  the  plaintiff,  and 
where  the  defendant's  driver  testifies  that  he  turned  to  the  left 
side  of  the  street  to  clear  the  car  track  for  an  approaching  street 
car,  because  part  of  the  roadway  was  occupied  by  a  tool  box,  mortar 
bed,  etc.,  and  that  his  attention  was  momentarily  withdrawn,  so  that 
he  failed  to  see  the  plaintiff  before  the  accident. 

Argued  Jan.  22, 1919.  Appeal,  No.  194,  Jan.  T.,  1918, 
by  defendant,  froin  judgment  of  C.  P.  No.  2,  Philadelphia 
Co.,  Dec.  T.,  1916,  No.  2929,  on  a  verdict  for  plaintiff  in 
case  of  Walter  G.  Lamont  v.  Adams  Express  Company. 
Before  Stewart,  Frazer,  Walling,  Simpson  and  Kbp- 
hart,  JJ.    Affirmed. 

Trespass  for  personal  injuries.    Before  Rogers,  J. 

Verdict  for  plaintiff  for  $9,757,  upon  which  judgment 
was  entered. 

The  court  overruled  defendant's  motion  for  judgment 
non  obstante  veredicto  and  for  a  new  trial.  Defendant 
appealed. 

Errors  assigned,  among  others,  were  overruling  mo- 
tion for  judgment  n.  o.  v.  and  for  a  new  trial,  and  an- 
swers to  points. 


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LAMONT  v.  ADAMS  EXPRESS  CO.,  Appellant.  19 
1919.]  Arguments — Opinion  of  the  Court. 

William  A.  Schnader,  with  him  Thomas  DeWitt  Cuy- 
let,  for  appellant. — The  plaintiff  was  guilty  of  contribu- 
tory negligence:  Virgilio  v.  Walker,  254  Pa.  241;  Watts 
v.  Plymouth  Boro.,  255  Pa.  185;  Warruna  v.  Dick,  261 
Pa.  602. 

The  defendant  was  entitled  to  have  the  jury  instructed 
that  if  the  defendant's  truck  was  in  plain  view  when  the 
plaintiff  stepped  into  the  street,  the  plaintiff  was  guilty 
of  contributory  negligence. 

Wm.  Clarke  Mason,  with  him  Leon  J.  Obermayer,  for 
appellee. 

Opinion  by  Mr.  Justice  Walling,  February  17, 1919 : 
This  action  in  trespass  is  for  personal  injuries  sus- 
tained in  a  collision  with  an  electric  truck.    Plaintiff 
resided  at  1610  Vine  street,  Philadelphia,  on  the  south 
side  of  the  street  about  one  hundred  and  ten  feet  west  of 
Sixteenth  street.    Between  the  sidewalks  in  Vine  street 
there  is  a  twenty-six  foot  paved  cartway  and  in  its  center 
a  single  track  street  railroad.    On  the  afternoon  of  De- 
cember 8,  1916,  plaintiff,  a  toolmaker  by  trade,  was 
out  in  search  of  employment,  and  about  six  o'clock  came 
back  to  the  northwest  corner  of  Sixteenth  and  Vine 
streets  where  he  talked  for  fifteen  minutes  with  an 
acquaintance  and  then  left  for  home.    Plaintiff's  evi- 
dence is  that  he  went  west  a  short  distance,  probably 
about  twenty-five  feet,  on  the  north  side  of  Vine  street 
and  then,  after  looking  in  both  directions  for  approach- 
ing vehicles  and  seeing  none,  started  diagonally  across 
the  cartway  in  the  direction  of  his  home,  going  on  a 
jog  trot  faster  than  a  quick  walk ;  that,  on  account  of 
public  garages  just  west  in  the  same  block  from  which 
automobiles  were  liable  to  emerge  and  come  suddenly 
down  the  street,  he  kept  a  constant  watch  in  that  di- 
rection and  did  not  look  back  while  passing  over  the 
cartway.    Meantime  defendant's  truck  was  proceeding 
west  along  the  railway  track  in  Vine  street  and  after 


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20      LAMONT  v.  ADAMS  EXPRESS  CO.,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

crossing  Sixteenth  street  turned  to  the  left  and  near  the 
south  curb,  without  warning,  struck  plaintiff,  inflicting 
upon  him  serious  and  permanent  injuries.  The  street 
was  lighted  and  the  truck  was  not  moving  rapidly.  De- 
fendant's driver  testified  that  he  turned  to  the  left  side 
of  the  street  to  clear  the  track  for  a  westbound  trolley 
car,  to  which  his  attention  was  momentarily  drawn  so 
that  he  failed  to  see  plaintiff  before  the  accident.  A 
part  of  the  cartway  near  the  north  curb,  opposite  plain- 
tiff's residence,  was  temporarily  occupied  by  a  tool  box, 
mortar  bed,  etc.,  used  in  connection  with  work  in  prog- 
ress on  that  side  of  the  street  5  and  the  driver  gives  that 
as  his  reason  for  turning  to  the  left  in  place  of  to  the 
right  as  he  ordinarily  would  have  done.  The  diagonal 
course  traversed  by  plaintiff  in  the  cartway  was  about 
ninety  feet.  Plaintiff  testified  that  he  knew  nothing  of 
the  approaching  truck  until  struck  just  as  he  was  step- 
ping from  the  cartway  onto  the  south  walk;  while  the 
evidence  for  defendant  is  that  plaintiff  had  passed  over 
the  walk  and  up  onto  the  steps  of  the  residence  next  east 
of  his  own,  when  he  staggered  back  some  eight  feet 
across  the  walk  and  fell  or  rolled  over  the  curb  in  front 
of  the  truck.  The  trial  judge  instructed  the  jury  that  if 
the  latter  version  was  true  there  could  be  no  recovery 
and  submitted  to  them  the  questions  of  negligence  and 
contributory  negligence.  This  appeal  by  defendant  is 
from  judgment  entered  on  the  verdict  for  plaintiff. 

A  pedestrian,  using  care  according  to  the  circum- 
stances, may  lawfully  cross  a  city  street  at  any  point  be- 
tween as  well  as  at  public  crossings,  and  may  do  so  di- 
rectly or  diagonally.  However,  crossing  at  an  unusual 
place  or  in  an  unusual  manner  imposes  upon  him  a 
greater  burden  of  care  (see  Virgilio  v.  Walker  &  Brehm, 
254  Pa.  241;  Arnold  v.  McKelvey,  253  Pa.  324),  and 
before  attempting  to  do  so  he  should  use  his  faculties  to 
ascertain  the  position  of  traffic  therein.  It  cannot  be 
affirmed,  however,  as  a  fixed  rule  that  one  crossing  a 
street  diagonally  must  turn  and  look  back ;  whether  he 


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LAMONT  v.  ADAMS  EXPRESS  CO.,  Appellant.      21 
1919.]  Opinion  of  the  Court. 

should  do  so  depends  upon  the  circumstances  of  the  par- 
ticular case.  He  must  be  alert  but  where  he  should 
look  depends  upon  the  law  of  the  road,  the  current  of 
traffic,  his  means  of  observation,  the  local  conditions,  the 
position  and  direction  of  moving  vehicles,  etc.;  and  as 
the  duty  shifts  according  to  the  circumstances  there  can 
be  no  set  rule  applicable  to  all  cases.  Berry  on  the  Law 
of  Automobiles  (2d  ed.),  section  217,  says,  "A  pedes- 
trian is  not  necessarily  guilty  of  negligence  because  of 
his  failure  to  look  to  the  rear  for  approaching  automo- 
biles while  walking  in  the  highway ;  and  whether  he  is 
negligent  on  a  particular  occasion  depends  upon  the  cir- 
cumstances at  the  time."  Also,  "Where  a  pedestrian  was 
crossing  a  street  diagonally  in  the  middle  of  a  block,  it 
was  held  that  she  was  under  no  legal  duty  to  look  be- 
hind her  or  to  anticipate  without  having  received  any 
warning  that  an  automobile  driver  was  intending  to 
pass  her  by  going  to  the  left  of  the  center  of  the  street" 
(citing  Fox  v.  Great  A.  &  P.  Tea  Co.,  84  N.  J.  L.  726). 
As  an  automobile  can  change  its  course  at  pleasure,  the 
pedestrian's  duty  of  avoiding  its  path  is  less  exacting 
than  in  case  of  a  locomotive  or  trolley  car  confined  to  a 
track :  see  ibid,  section  218.  It  follows  that  plaintiff  had 
a  right  to  cross  the  street  where  he  did,  and  his  reason 
for  continuing  to  look  west  and  not  east  was  for  the 
jury.  As  he  had  safely  passed  the  north  side  of  the 
street  and  the  car  track,  where  westbound  traffic  would 
be  expected,  it  cannot  be  said  as  a  matter  of  law  he  was 
negligent  in  facing  the  eastbound  traffic  that  might  be 
looked  for  on  the  south  side  of  the  street.  Had  defend- 
ant's driver  also  been  watching  ahead  instead  of  looking 
to  one  side,  the  accident  might  have  been  avoided. 

The  trial  court  could  not  have  granted  defendant's 
request  to  the  effect  that  if  its  truck  was  in  plain  sight 
when  plaintiff  started  to  cross  the  street  he  was  guilty 
of  contributory  negligence  and  could  not  recover.  That 
ignored  the  questions  as  to  the  speed  of  the  truck,  the  dis- 
tance it  was  away,  the  side  of  the  street  upon  which  it 

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22     LAMONT  v.  ADAMS  EXPRESS  CO.,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

was  approaching  and  other  circumstances.  It  cannot 
be  broadly  asserted  that  it  is  negligence  to  cross  a  street 
because  an  approaching  automobile  is  in  plain  sight. 

The  driver  might  have  cleared  the  track  by  turning  to 
the  right  before  he  came  to  the  obstruction  or  after  he 
had  passed  it  and  there  was  no  urgent  necessity  for  him 
to  turn  and  go  over  to  the  left  curb  where  plaintiff  was 
injured,  and  the  latter  was  not  bound  to  anticipate  such 
an  event,  especially  as  he  had  no  warning.  The  driver 
had  a  clear  view  of  the  place  of  accident  and  his  negli- 
gence was  for  the  jury. 

Plaintiff  was  hurt  in  his  back  and  legs,  and  the  right 
foot  was  so  badly  crushed  and  mangled  that  more  than 
a  year  after  the  accident,  on  the  advice  of  physicians, 
the  leg  was  amputated.  We  find  no  merit  in  the  con- 
tention that  the  accident  was  not  the  proximate  cause  of 
the  loss  of  his  leg,  or  in  the  contention  that  the  trial 
court  erred  in  refusing  to  strike  out  the  testimony  upon 
that  branch  of  the  case :  see  Wallace  v.  Pennsylvania  R. 
R.  Co.,  222  Pa.  256. 

The  assignments  of  error  are  overruled  and  the  judg- 
ment is  affirmed. 


Wright's  Estate. 

Life  estate — Expenditures  for  preservation  of  estate — Trusts  and 
trustees — Refund  of  deductions  made  from  life  tenant's  income — 
Res  judicata. 

The  question  as  to  the  right  of  a  life  tenant  to  have  refunded  to 
him  income  retained  by  the  trustee  hy  virtue  of  an  order  of  court 
to  expend  for  the  preservation  of  the  estate,  must  be  regarded  as 
res  judicata  where  the  Supreme  Court  on  a  previous  appeal  modi- 
fied the  decree  of  the  court  so  as  to  relieve  the  life  tenant's  income 
from  further  deductions,  and  held  that  the  amount  previously 
deducted  need  not  be  refunded  out  of  the  principal  of  the  estate. 


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WRIGHT 'S  ESTATE.  23 

1919.]         Statement  of  Facts — Opinion  of  Court  below. 

Argued  Jan.  23, 1919.  Appeal,  No.  209,  Jan.  T.,  1919, 
by  plaintiff,  from  decree  of  O.  C.  Philadelphia  Co.,  July 
T.,  1895,  No.  104,  dismissing  petition  for  a  citation  in 
the  case  of  Estate  of  John  Wright,  Deceased.  Before 
Brown,  C.  J.,  Stbwabt,  Frazeb,  Walling  and  Simpson, 
JJ.  Affirmed. 

Petition  of  life  tenant  to  the  Orphans'  Court  for  a 
further  modification  of  the  decrees  of  October  19,  1895, 
and  July  3,  1897,  authorizing  trustee  to  deduct  certain 
moneys  from  life  tenant's  income  for  expenditures  for 
preservation  of  the  estate. 

The  court  dismissed  the  petition  in  the  following  opin- 
ion by  Gest,  J.    See  27  D.  R.  1048. 

The  previous  history  of  this  case  is  fully  stated  in  the 
opinion  of  the  Supreme  Court :  Wright's  Est,  234  Pa. 
580,  and  therefore  need  not  be  here  recited. 

This  is  the  petition  of  the  life  tenant  setting  forth 
that  the  sum  of  $6,355.24,  mentioned  in  the  opinion  of 
the  Supreme  Court  had  been  withheld  from  his  income 
since  May  9,  1910,  and  that  the  petitioner  is  advised 
that  the  court  was  without  jurisdiction  to  incorporate  in 
its  decrees  of  October  19,  1895,  and  July  3, 1897,  a  pro- 
vision that  any  part  of  his  income  should  be  withheld 
to  reimburse  the  principal  for  the  expenditures  incurred 
by  the  trustee  in  the  erection  of  new  buildings,  the  rea- 
son alleged  being  that  under  the  direction  of  the  will 
the  income  of  the  petitioner  as  life  tenant  was  to  be 
paid  to  him  "in  such  way  and  manner  that  the  same  shall 
not  be  liable  for  his  debts,  contracts  or  engagements  in 
any  way  whatever." 

The  prayer  of  the  petition  is  that  the  sum  so  withheld 
shall  be  now  paid  to  the  petitioner. 

The  decree  of  1895  was  entered  at  the  express  request 
of  the  petitioner  and,  in  1897,  he  submitted  himself  to 
the  order  of  the  court.  He  acquiesced  in  both  decrees 
until  1910,  when  on  his  petition  it  was  finally  deter- 
mined by  the  Supreme  Court  that  his  income  accruing 

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24  WRIGHT 'S  ESTATE. 

Opinion  of  Court  below — Opinion  of  the  Court  [264  Pa. 
after  May  9th,  of  that  year,  should  be  paid  to  him  with- 
out further  deduction.  In  his  appeal  to  the  Supreme 
Court,  his  counsel  strenuously  argued  that  the  decrees 
of  this  court  were  invalid  by  reason  of  the  above-quoted 
spendthrift  trust  provision  of  the  will.  The  Supreme 
Court  in  view  of  the  changed  condition  of  the  property 
held  in  terms  "that  while  the  $6,355.24  retained  by  the 
trustee  need  not  now  be  refunded  out  of  the  principal  of 
the  estate,  justice  and  equity  require  that  the  life  tenant 
be  granted  relief  to  the  extent  indicated,"  evidently 
meaning  that  the  $6,355.24  should  be  in  principal  until 
there  should  be  such  a  material  change  in  the  circum- 
stances of  the  case  that  would  render  it  just  and  equi- 
table to  grant  further  relief  to  the  life  tenant.  The  Su- 
preme Court  added,  "We  are  not  called  upon  and  it 
would  serve  no  useful  purpose  to  consider  the  other 
points  urged  before  us  by  the  appellant  not  raised  in  the 
court  below." 

We  regard  this  question  as  res  judicata.  It  should 
properly  have  been  raised  over  twenty  years  ago  in  the 
inception  of  the  proceedings ;  it  was  actually  raised  over 
six  years  ago  before  the  Supreme  Court  and  there 
brushed  aside,  and  in  our  opinion  cannot  be  raised  again 
by  this  fresh  petition. 

The  petition  is  dismissed. 

Petitioner  appealed. 

Error  assigned,  among  others,  was  the  decree  of  the 
court. 

Henry  K.  Fox,  for  appellant. 

A.  H.  Wintersteen,  for  appellee. 

Per  Curiam,  February  17, 1919 : 

This  appeal  is  dismissed,  at  appellant's  costs,  on  the 
opinion  of  the  learned  court  below  dismissing  his  peti- 
tion for  a  citation. 


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PISHMAN,  Appellant,  v.  BROWN.  25 

1919.]  Syllabus — Opinion  of  the  Court. 

Fishman,  Appellant,  v.  Brown. 

Partnership — Bill  in  equity  for  an  accounting  —  Exceptions  — 
Failure  to  specify  any  particular  error — Dismissal. 

Exceptions  to  a  partnership  account  were  properly  dismissed 
where  they  were  vague  and  indefinite  and  failed  to  specify  any 
particular  error  or  errors  in  the  account.  • 

Argued  Jan.  23, 1919.  Appeal,  No.  213,  Jan.  T.,  1919, 
by  plaintiff,  from  decree  of  C.  P.  No.  5,  Philadelphia 
Co.,  June  T.,  1915,  No.  2109,  in  Equity,  dismissing  ex- 
ceptions to  defendant's  account  and  confirming  the  ac- 
count in  case  of  David  Fishman  v.  Morris  Brown.  Be- 
fore Brown,  C.  J.,  Stewart,  Frazbr,  Walling  and 
Simpson,  JJ.    Affirmed. 

Bill  in  equity  praying  for  dissolution  of  a  partnership, 
the  appointment  of  a  receiver,  and  for  an  accounting. 
Before  Martin,  P.  J. 

The  court  decreed  a  dissolution  of  the  partnership  and 
directed  the  defendant  to  file  an  account. 

The  court  approved  and  confirmed  the  account  and 
dismissed  plaintiffs  exceptions  thereto.  Plaintiff  ap- 
pealed. 

Errors  assigned  were  dismissing  exceptions  to  the  ac- 
count and  the  decree  of  the  court. 

Edward  ToUn,  for  appellant. 

Bertram  D.  Rearick,  for  appellee,  was  not  heard. 

Per  Curiam,  February  17, 1919 : 

This  appeal  by  the  plaintiff  below  is  from  the  dismissal 
of  his  exceptions  to  the  partnership  account  filed  by  the 
defendant.  They  were  vague  and  indefinite,  failing  to 
specify  any  particular  error  or  errors  in  the  account, 


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26  FISHMAN,  Appellant,  v.  BROWN. 

Opinion  of  the  Court.  [264  Pa. 

and  nothing  appears  in  either  of  the  two  assignments 
before  us  directing  our  attention  to  any  specific  error 
that  ought  to  be  corrected.  The  appeal  is,  therefore,  dis- 
missed, at  appellant's  costs. 


Kennedy,,  Appellant,  v.  Knott 

Negligence — Master  and  servant — Injury  to  third  person — Liar 
hility  of  master — Unauthorized  use  of  master's  automobile. 

An  owner  of  an  automobile  is  not  liable  for  the  killing  of  a 
pedestrian  run  down  by  it,  when  the  chauffeur,  without  the  owner's 
knowledge,  takes  some  of  his  own  acquaintances  out  for  a  ride, 
although  he  intended,  during  the  excursion,  to  procure  lodging  for 
himself  in  a  strange  city  to  which  he  had  brought  the  owner. 

Argued  Jan.  23, 1919.  Appeal,  No.  212,  Jan.  T.,  1919, 
by  plaintiff,  from  judgment  of  C.  P.  No.  1,  Philadelphia 
Co.,  March  T.,  1917,  No.  4270,  refusing  to  take  off  a  non- 
suit in  the  case  of  Anna  Margaret  L.  Kennedy  v.  Agnes 
G.  Knott.  Before  Brown,  C.  J.,  Stewart,  Frazbr, 
Walling  and  Simpson,  JJ.    Affirmed. 

Action  in  trespass  to  recover  damages  for  death  of 
plaintiff's  husband.    Before  Patterson,  J. 

From  the  record  it  appeared  that  the  plaintiffs  hus- 
band was  killed  by  an  automobile  belonging  to  defendant 
and  operated  by  a  chauffeur.  On  the  day  of  the  accident 
the  defendant  was  a  resident  of  New  York  City,  and 
came  to  the  City  of  Philadelphia  in  an  automobile  driven 
by  her  chauffeur.  They  arrived  at  a  hotel  about  5:30 
o'clock  in  the  evening.  She  then  dismissed  her  chauf- 
feur and  told  him  to  take  the  car  and  store  it  in  a  cer- 
tain garage  which  was  about  one-half  a  square  away, 
until  ten  or  eleven  o'clock  next  morning.  She  told  the 
driver  to  get  himself  a  room.  He  took  the  car  and  stored 
it  for  the  night  in  the  garage.  After  getting  his  supper 
he  returned  to  the  garage  about  9  o'clock  p.  m.  and  there 


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KENNEDY,  Appellant,  v.  KNOTT.  27 

1919.]  Statement  of  Facts — Opinion  of  the  Court 
met,  among  other  persons,  another  chauffeur  who  asked 
him  if  he  had  a  room  for  the  night. .  After  some  conver- 
sation he  took  the  car  with  the  intention  of  taking  his 
acquaintance  and  others,  for  a  drive,  and  of  securing  a 
room.  About  11  o'clock  p.  m.  he  had  an  accident  result- 
ing in  the  killing  of  plaintiff's  husband  within  a  dozen 
blocks  of  the  starting  point. 

The  court  directed  a  nonsuit  which  it  subsequently  re- 
fused to  take  off  in  the  following  opinion : 

This  nonsuit  was  entered  because  the  evidence  of  the 
plaintiff  showed  that  the  chauffeur  of  the  defendant  was 
not  engaged  in  the  defendant's  business  at  the  time  of 
the  accident.  We  concur  in  the  ruling  and  the  motion 
to  take  off  nonsuit  is  dismissed. 

Error  assigned  was  refusal  to  take  off  the  nonsuit. 

Robert  T.  McCracken,  with  him  Roberts,  Montgomery 
&  McKeehan,  for  appellant. 

Harry  S.  Ambler,  Jr.,  for  appellee. 
Per  Curiam,  February  17, 1919 : 

This  judgment  is  affirmed  on  the  opinion  of  the  court 
below  dismissing  the  motion  to  take  off  the  nonsuit. 


Prevost's  Estate. 

Will — Construction — Codicil  reducing  legacies  —  Absolute  or 
conditional. 

The  reduction  of  a  legacy  given  in  a  will  by  a  codicil  providing 
"in  order  to  avoid  a  possible  deficiency,  which  may  grow  out  of  the 
shrinking  of  investments,  I  reduce  some  of  the  legacies  in  my  will 
as  follows,"  with  a  further  provision  that  where  legacies  were  re- 
duced the  will  should  read  as  though  the  reduced  sum  had  been  in 
the  first  instance  provided  for,  is  absolute,  and  not  merely  condi- 
tional upon  a  shrinkage  of  assets  so  as  to  render  the  estate  insuf- 
ficient to  pay  the  legacies  in  f  uU. 


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28  PREVOST'S  ESTATE. 

Statement  of  Facts — Opinion  of  Court  below.  [264  Pa. 
Argued  Jan.  23, 1919.  Appeal,  No.  222,  Jan.  T.,  1919, 
by  Caroline  M.  Kirkland,  from  decree  of  O.  C.  Philadel- 
phia Co.,  April  T.,  1918,  No.  596,  dismissing  exceptions 
to  adjudication  of  an  account  in  the  Estate  of  Harriet 
C.  Prevost,  deceased.  Before  Brown,  C.  J.,  Stewart, 
Frazer,  Walling  and  Simpson,  JJ.    Affirmed. 

Exceptions  to  adjudication.    Before  Gest,  J. 

Prom  the  record  it  appears  that  the  testatrix  added  a 
codicil  to  her  will  which  provided : 

"In  order  to  avoid  a  possible  deficiency,  which  may 
grow  out  of  the  shrinking  of  investments,  I  reduce  some 
of  the  legacies  in  my  will  as  follows." 

Exceptions  to  the  adjudication  of  the  auditing  judge 
were  dismissed  for  the  reasons  stated  in  the  following 
opinion  by  Anderson,  J. : 

In  this  estate,  the  testatrix,  having  given,  inter  alia,  a 
legacy  of  $ 50,000  in  trust  for  the  exceptant,  afterwards 
by  a  codicil,  in  which  she  states  that  she  fears  a  shrink- 
age of  investments,  reduced  among  others  this  legacy  to 
f40,000,  and  subsequently  provided  that  where  legacies 
were  reduced  the  will  should  read  as  though  the  reduced 
sum,  instead  of  that  originally  named,  had  been  in  the 
first  instance  provided  for. 

The  exceptant,  arguing  that  the  reduction  feared  by 
the  testatrix  had  not  taken  place,  claimed  that  the  pur- 
pose of  the  testatrix  was  to  cut  down  her  legacies  only 
in  case  of  a  shrinkage  sufficient  to  materially  depreciate 
the  value  of  the  estate,  and,  this  not  having  taken  place, 
the  original  amount  of  the  legacies  should  have  been 
awarded. 

The  auditing  judge,  in  a  careful  and  elaborate  opinion, 
decided  that  the  reduction  was  not  a  conditional  but  an 
absolute  one,  and  therefore  awarded  to  the  trustees  for 
the  claimant  the  reduced  amount  [27  Dist.  R.  933]. 

A  perusal  of  the  codicil  fails  to  disclose  any  condition ; 
on  the  contrary,  it  appears  that  there  is  an  absolute  re- 
duction of  the  amount  of  the  legacy.    It  was  the  tes- 


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PBEVOST'S  ESTATE,  29 

1919.]       Opinion  of  Court  below — Opinion  of  the  Court 
tatrix'g  right  to  give  what  she  pleased  and  the  fact  that 
she  may  have  been  mistaken  in  her  figures  cannot  affect 
the  fact  that  she  did  reduce  the  legacy  without  qualifi- 
cation. 

For  these  reasons  and  for  the  reasons  given  by  the 
auditing  judge  in  his  adjudication,  the  exceptions  are 
dismissed  and  the  adjudication  confirmed  absolutely. 

Error  assigned  was  the  decree  of  the  court. 

Ulysses  8.  Koons,  for  appellant. 

Raymond  M.  Remick,  with  him  Prichard,  Saul,  Bay- 
ard  &  Evans,  for  appellee,  were  not  heard. 

Pee  Curiam,  February  17, 1919 : 

The  correct  conclusion  of  the  learned  court  below  was 
that  the  reduction  by  the  testatrix  in  her  codicil  of  the 
legacy  given  in  her  will  to  the  appellant  was  absolute, 
and  not  conditional. 

Appeal  dismissed,  at  appellant's  costs. 


Gallagher  v.  Walton  Mfg.  Co.  et  al.,  Appellants. 

Workmen's  compensation  —  Finding  of  fact  by  compensation 
board — Review  by  court. 

A  finding  of  fact  by  the  referee  approved  by  the  compensation 
board,  to  the  effect  that  a  deceased  workman  was  engaged  in  the 
course  of  his  employment  at  the  time  of  the  accident  which  resulted 
in  his  death,  is  one  of  fact,  and  will  not  be  reviewed  by  the  court. 

Argued  Jan.  23, 1919.  Appeal,  No.  224,  Jan.  T.,  1919, 
by  defendants,  from  judgment  of  C.  P.  No.  3,  Philadel- 
phia Co.,  June  T.,  1918,  No.  2870,  dismissing  an  appeal 
from  an  award  of  the  Workmen's  Compensation  Board 
in  the  case  of  Anna  Gallagher  v.  P.  M.  Walton  Manu- 
facturing Company  and  Manufacturers'  Casualty  In- 


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30    GALLAGHER  v.  WALTON  MFG.  CO.,  Appellants. 

Statement  of  Facts.  [264  Pa. 

surance  Company,  Insurance  Carrier  for  Defendant 
Before  Brown,  C.  J.,  Stewart,  Frazbb,  Walling  and 
Simpson,  JJ.    Affirmed. 

Appeal  from  an  award  of  Workmen's  Compensation 
Board. 

The  facts  found  by  the  referee  were  in  part  as  follows : 
On  June  23, 1917,  and  for  some  time  previous  thereto, 
Harry  Gallagher  was  in  the  employ  of  the  defendant, 
whose  business  was  that  of  machine  manufacturer,  and 
whose  place  of  business  was  at  1019-29  Germantown 
avenue,  Philadelphia,  Pennsylvania,  as  a  driver,  and  in 
said  employment  on  that  date  his  wages  were  fourteen 
dollars  (|14)  per  week,  and  were  payable  weekly.  On 
the  morning  of  June  23,  1917,  Harry  Gallagher  had  re- 
ceived instructions  from  his  employer  to  go  to  Harring- 
ton's, Seventeenth  and  Callowhill  streets,  and  get  some 
gear  wheels;  to  go  to  the  Hub  Machine  Welding  &  Con- 
tracting Company  to  get  a  brace  to  be  welded;  and  to 
go  to  G.  A.  Hodson,  226  Arch  street,  to  get  a  pulley; 
and  was  also  instructed  to  go  to  the  Ericcson  Line  Pier, 
Pier  3,  South,  between  Market  and  Chestnut  streets,  in 
order  to  get  some  freight.  He  had  left  the  stable  with 
his  team  in  the  morning,  and  about  one  o'clock  he 
stopped  at  the  blacksmith  shop  of  Mr.  T.  F.  Gaffney,  911 
North  Second  street,  Philadelphia,  at  which  he  usually 
had  his  horses  shod.  There  he  met  Charles  F.  Johns,  a 
friend  of  his,  who  was  an  employee  of  Mr.  Gaffney. 
Johns  got  on  the  wagon,  and  they  drove  up  Second  street 
and  west  on  Widley  street,  then  through  Widley  street 
and  another  street  around  Berks  street,  then  through 
Cambridge  street  and  over  Fourth  street  to  Girard  ave- 
nue, and  west  on  Girard  avenue  to  Sixth  street  and 
Girard  avenue  in  front  of  the  Eagle  Hotel,  where  Dr. 
Delany,  a  veterinarian,  resided  and  had  his  office.  Gal- 
lagher had  gone  up  here  for  the  purpose  of  seeing  Dr. 
Delany  for  advice  relative  to  the  horses.  Gallagher  and 
Johns  got  off  the  wagon  and  went  into  the  bar  with  Dr. 


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GALLAGHER  v.  WALTON  MFG.  CO.,  Appellants.    31 
1919.]  Statement  of  Facts. 

Delany,  where  they  had  one  drink,  and  after  stopping 
there  a  few  minutes  they  returned  to  the  wagon,  and 
Gallagher  and  Johns  got  on  the  wagon.  They  then  drove 
west  on  Girard  avenue  to  Darien  street,  and  turned 
north  on  Darien  street,  and  stopped  at  1222  North  Dar- 
ien street,  where  Johns  lived.  They  went  into  Johns's 
house  and  remained  there  about  twenty-five  minutes, 
sending  out  for  a  kettle  of  beer.  After  that,  they  got  on 
the  wagon,  turned  the  horses  south  on  Darien  street,  and 
went  south  on  Girard  avenue,  then  east  on  Girard  ave- 
nue to  Fourth  street,  then  south  on  Fourth  street  and 
over  George  street  on  their  way  directly  to  the  defendant's 
place  of  business,  which  was  at  1025  Germantown  ave- 
nue, Philadelphia.  After  they  had  crossed  Third  street 
and  were  near  Bodine  street  just  east  of  Third  street, 
Gallagher  fell  off  the  wagon  and  sustained  certain  in- 
juries. When  the  wagon  was  returned  to  the  defend- 
ant's place  of  business,  it  had  on  it  all  of  the  things  for 
which  Gallagher  had  been  sent,  except  the  freight  from 
the  Ericcson  Line  Pier. 

In  addition  to  being  a  driver,  Gallagher  took  care  of 
the  stable,  and  ordinarily  his  work  would  be  finished  on 
Saturday  at  about  twelve  or  one  o'clock,  and  he  would 
return  in  the  evening  to  take  care  of  the  horses.  At  the 
time  of  the  occurrence  of  the  injury,  Gallagher  was  in 
the  course  of  his  employment  with  the  defendant.  He 
had  gone  to  the  hotel  to  see  Dr.  Delany  in  order  that  he 
might  consult  him  with  reference  to  the  defendant's 
horses,  of  which  he  had  charge ;  and  even  if  it  might  be 
considered  that,  in  going  to  his  friend's  house  on  Darien 
street  above  Girard  avenue,  it  was  out  of  the  direction 
in  which  he  should  have  gone  had  he  gone  directly  back 
to  the  place  of  business  from  the  veterinarian's  office, 
certainly,  after  he  had  returned  to  Sixth  street  and  Gi- 
rard avenue,  and  was  proceeding  from  there  to  his  em- 
ployer's place  of  business,  he  had  returned  to  the  course 
of  his  employment.  He  had  not  relinquished  his  employ- 
er's team  nor  the  goods  which  he  was  taking  to  his  em- 


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32    GALLAGHER  v.  WALTON  MFG.  CO.,  Appellants. 

Statement  of  Facts — Opinion  of  the  Court.  [264  Pa. 
ployer's  place  of  business,  and  he  was  on  his  way  to 
return  his  team  and  deliver  the  goods  to  his  employer. 
He  had  no  certain  hours  of  employment.  We  are  not 
ready  to  conclude  that  he  had  even  left  his  employment 
when  he  had  gone  to  his  friend's  house  on  the  way  back 
to  the  employer's  place  of  business,  but  we  feel  that  it  is 
unnecessary  for  us  to  decide  this  question,  for,  as  stated 
above,  even  had  he  left  the  course  of  his  employment,  cer- 
tainly at  the  time  of  the  accident  he  had  returned  to  it. 

As  a  result  of  the  injuries  sustained  as  aforesaid,  Har- 
ry Gallagher  died  June  23,  1917,  at  the  Roosevelt  Hos- 
pital, Philadelphia,  Pennsylvania. 

The  compensation  board  affirmed  the  above  findings 
of  fact. 

The  court  dismissed  the  appeal  from  the  order  of  the 
compensation  board. 

Error  assigned  was  the  order  of  the  court. 

Archibald  T.  Johnson,  with  him  Russell  Duane,  for 
appellants. 

Michael  D.  Hayes,  with  him  Francis  M.  Ale  Adams,  for 
appellee. 

Per  Curiam,  February  17, 1919 : 

The  question  whether  the  decedent  was  engaged  in  the 
course  of  his  employment  at  the  time  of  the  accident 
which  resulted  in  his  death  was  one  of  fact.  The  finding 
of  the  referee,  approved  by  the  compensation  board,  was 
"at  the  time  of  the  occurrence  of  the  injury  Gallagher 
was  in  the  course  of  his  employment  with  the  defendant." 
This  is  conclusive :  Poluskiewicz  v.  Philadelphia  &  Read- 
ing Coal  &  Iron  Company,  257  Pa.  305;  Messinger  v. 
Lehigh  Valley  R.  R.  Company,  261  Pa.  336. 

Appeal  dismissed  and  award  affirmed. 


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HENRY  v.  PHILADELPHIA,  Appellant.  38 

1919.1  Syllabus— Statement  of  Facts. 

4 

Henry  v.  City  of  Philadelphia,  Appellant 

Negligence  —  Proximate  cause  —  Hole  in  street  —  Breaking  of 
wagon  axle — Injury  to  pedestrian  by  being  struck  by  wagon  wheel. 

The  question,  whether  a  hole  in  a  city  street  was  the  proximate 
cause  of  injury  to  a  pedestrian  caused  by  being  struck  by  a  wagon 
wheel,  which  broke  off  the  axle  and  rolled  upon  the  sidewalk,  when 
the  wagon  struck  the  hole  in  the  street,  is  for  the  jury* 

Argued  Jan.  24, 1919.  Appeal,  No.  65,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  1,  Philadelphia 
Co.,  March  T.,  1915,  No.  3943,  on  a  verdict  for  plaintiff 
in  case  of  Sarah  Q.  Henry,  Administratrix  of  the  Estate 
of  John  J.  Henry,  deceased,  v.  City  of  Philadelphia.  Be- 
fore Brown,  C.  J.,  Stewart,  Moschzisker,  Walling 
and  Simpson,  JJ.   Affirmed. 

Trespass  to  recover  damages  for  personal  injuries  to 
plaintiff's  husband.    Before  Shoemaker,  J. 

From  the  record  it  appears  that  at  the  intersection  of 
Twenty-seventh  and  Federal  streets,  in  the  City  of  Phil- 
adelphia, there  was  a  large  hole  or  break  in  the  street 
paving  along  the  street  and  track  some  six  or  eight  feet 
in  length,  and  about  three  or  four  feet  in  width,  and 
eight  or  ten  inches  in  depth,  which  had  existed  for 
some  time  previous  to  the  accident.  In  consequence  of 
a  riot  call  to  the  police  station  of  the  City  of  Philadel- 
phia, a  police  patrol  wagon  driven  rapidly,  proceeded 
westward  on  the  north  side  of  Federal  street;  the  horses 
and  front  wheel  of  the  wagon  passed  over  the  street  car 
track  and  when  the  rear  wheels  of  the  patrol  wagon 
struck  the  east  track  the  axle  of  the  wagon  broke,  the 
right  rear  wheel  of  the  wagon  was  detached  from  the 
axle  of  the  wagon  and  was  projected  forward  for  a  dis- 
tance of  about  100  feet,  when  it  struck  the  curb  and 
rolled  upon  the  sidewalk  and  hit  John  J.  Henry 
in  the  back,  throwing  him  to  the  ground,  and  causing  the 
injuries  for  which  this  suit  was  instituted. 
Vol.  cclxiv— 3 

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34  HENRY  v.  PHILADELPHIA,  Appellant. 

Verdict— Opinion  of  the  Court.  [264  Pa. 

Verdict  for  plaintiff  in  the  sum  of  $ 7,457  and  judg- 
ment entered  thereon. 

The  court  overruled  defendant's  motion  for  judgment 
n.  o.  v. 

Errors  assigned  were  the  refusal  of  defendant's  mo- 
tion for  judgment  n.  o.  v.,  and  answers  to  points. 

Harry  T.  Kingston,  Assistant  City  Solicitor,  with  him 
John  P.  Connelly,  City  Solicitor,  and  Harry  8.  Pla- 
towsky,  Assistant  City  Solicitor,  for  appellant. — The 
city  is  not  liable  for  injuries  caused  by  the  negligent 
driving  of  a  fire  engine  or  patrol  wagon  by  an  employee 
while  in  the  discharge  of  a  public  duty:  Freeman  v. 
Phila.,  7  W.  N.  C.  45;  Rosenberry  v.  Phila.,  7  W.  N.  C. 
558;  Knight  v.  Phila.,  15  W.  N.  C.  307;  Elliott  v.  Phila., 
75  Pa.  347;  Boyd  v.  Ins.  Patrol  of  Phila.,  113  Pa.  269. 

The  proximate  cause  of  the  accident  was  the  breaking 
of  the  axle  and  detachment  of  the  wheel  caused  by  the 
negligent  driving  of  the  wagon:  Marble  v.  City  of 
Worcester,  4  Gray  395 ;  Moulton  v.  Snadford,  51  Maine 
127. 

To  render  a  municipality  liable  for  an  injury  by  a 
defect  in  the  highway  it  must  have  been  the  sole  and  ef- 
ficient cause  of  the  injury :  Chartiers  Twp.  v.  Phillips, 
122  Pa.  601 ;  Thubron  v.  Dravo  Contracting  Co.,  238  Pa. 
443;  Bruggeman  et  al.  v.  City  of  York,  259  Pa.  94. 

John  Martin  Doyle,  with  him  Eugene  Raymond,  for 
appellee,  were  not  heard. 

Per  Curiam,  February  17, 1919: 

This  case  was  for  the  jury,  who  were  correctly  in- 
structed by  the  learned  trial  judge  that  the  plaintiff 
could  not  recover  unless  they  found  that  the  proximate 
cause  of  the  accident  which  resulted  in  the  injuries  to 
her  decedent  was  the  hole  in  the  street.  They  so  found, 
and  the  assignments  of  error  must  be  dismissed. 

Judgment  affirmed. 

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TEBLETSKI  et  al.,  Appellants,  v.  PHILA.  &  R.  RY.  CO.  35 
1919.]  Syllabus— Statement  of  Facts. 


Terletski  et  al.,  Appellants,  v.  Philadelphia  & 
Beading  By.  Co. 

Negligence  —  Railroads  —  Infant  trespasser  —  Frightening  boy 
from  car — Proximate  cause  —  Concurrent  causes  —  Res  gestm  — 
Pleading — Allegata  and  probata — Nonsuit 

1.  In  an  action  by  a  boy  eleven  year3  old  against  a  railroad 
company  for  damages  for  personal  injuries,  where  the  statement 
of  claim  avers  that  while  the  plaintiff  was  on  a  car  of  the  defend- 
ant, employees  of  the  defendant  "carelessly  and  negligently  set  the 
said  car  in  motion,  causing  and  requiring  plaintiff  to  leave  the  car 
while  in  motion,  in  consequence  of  which  he  was  thrown  from 
his  position"  and  injured,  it  is  reversible  error  for  the  court  to 
exclude  evidence  to  the  effect  that  a  brakeman,  who  saw  plaintiff 
get  on  the  car,  approached  him  from  another  car  immediately 
after  the  car  had  started  by  a  signal  from  the  brakeman,  and  by 
threatening  gestures,  with  a  club  in  his  hand,  frightened  him  off; 
and  it  is  also  error  to  enter  a  nonsuit. 

2.  The  manner  in  which  plaintiff  was  required  to  get  off  the  car 
was  part  of  the  res  gest®  and  plaintiff  was  not  required  to  set  it 
forth  in  his  pleadings. 

3.  The  signal  given  to  start  the  train,  when  the  brakeman,  who 
gave  it,  knew  that  the  boy  was  on  one  of  the  cars,  was  itself  a 
negligent  act;  but  the  starting  of  the  car  was  not  in  itself  what 
caused  the  injury,  the  starting  of  the  car  and  the  frightening  of  the 
boy  from  it  were  concurrent  causes  of  the  injury,  so  averred  in  the 
statement  of  claim. 

4.  In  such  a  case,  as  the  pleadings  were  sufficient  to  justify  the 
admission  of  the  excluded  testimony,  and  to  sustain  a  verdict  for 
plaintiffs,  the  case  ought  not  to  have  been  taken  from  the  jury. 

Argued  Jan.  15,  1919.  Appeals,  Nos.  59  and  60,  Jan. 
T.,  1919,  by  plaintiffs,  from  order  of  C.  P.  No.  2,  Phila- 
delphia Co.,  March  T.,  1915,  No.  4762,  refusing  to  take 
off  nonsuit  in  case  of  Joseph  Terletski,  by  his  father  and 
next  friend  Michael  Terletski,  and  Michael  Terletski  in 
his  own  right,  v.  Phila.  &  Reading  Ry.  Company.  Before 
Brown,  C.  J.,  Moschzisker,  Frazbr,  Walling  and  Kbp- 
hart,  JJ.    Reversed. 

Trespass  to  recover  damages  for  personal  injuries. 
Before  Barratt,  P.  J. 


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36  TERLETSKI  et  al.,  Appellants,  v.  PHILA.  &  R.  RY.  CO. 
Statement  of  Facta — Opinion  of  the  Court      [264  Pa. 
At  the  trial  the  court  entered  a  compulsory  nonsuit 
which  it  subsequently  refused  to  take  off.    Plaintiffs  ap- 
pealed. 

Err  or 8  assigned  were  refusal  to  take  off  nonsuit,  and  in 
striking  out  certain  evidence. 

John  J.  McDevitt,  Jr.,  with  him  Harry  A.  Oorson  and 
Samuel  8.  Herman,  for  appellants. — The  case  was  for 
the  jury:  Trevethan  v.  Phila.  &  Beading  Ry.  Co.,  244 
Pa.  414;  Cameron  v.  Citizens  Traction  Co.,  216  Pa.  191; 
Warden  v.  Phila.,  167  Pa.  523;  Luckett  v.  Reighard,  248 
Pa.  24;  McCullough  v.  Ry.  Mail  Assn.,  225  Pa.  118. 

Wm.  Clarke  Mason,  for  appellee,  cited:  Martin  v. 
Pittsburgh  Rys.  Co.,  227  Pa.  18;  Allen  v.  Tuscarora  Val- 
ley R.  R.  Co.,  229  Pa.  97;  Card  v.  Stowers  Pork,  etc.,  Co., 
253  Pa.  575. 

Opinion  by  Mb.  Chief  Justice  Brown,  February  24, 
1919: 

At  the  time  Joseph  Terletski  sustained  the  injuries  for 
which  this  action  was  brought  he  was  eleven  years  of 
age.  The  cause  of  action  is  thus  set  forth  in  the  state- 
ment of  claim:  "The  plaintiff,  Joseph  Terletski,  on  or 
about  the  8th  day  of  May,  A.  D.  1915,  about  eight  o'clock 
a.  m.,  was  at  or  about  the  roadway  of  the  defendant  com- 
pany, in  front  of  the  American  Pulley  Works  at  or  about 
the  point  where  the  Point  Richmond  Division  of  the 
Philadelphia  &  Reading  Railway  Company  passes  be- 
neath the  Chestnut  Hill  &  Germantown  Division  of  the 
Pennsylvania  Railroad,  and  while  thus  about  the  said 
roadway  or  upon  a  certain  car  of  the  defendant  company, 
the  employees  of  the  defendant  company  carelessly  and 
negligently  set  the  said  car  in  motion,  causing  and  re- 
quiring the  said  plaintiff  to  leave  the  said  car  while  in 
motion,  in  consequence  of  which  he  was  thrown  from  his 
position,  and  sustained  the  injuries  hereinafter  more 
fully  described."   The  cause  of  action  as  set  forth  in  the 


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TEBLETSKI  et  al.,  Appellants,  v.  PHILA.  &  R.  RY.  CO.  37 

1919.]  Opinion  of  the  Court. 

pleadings  was  supported  by  the  testimony.  The  boy 
testified  that,  when  he  got  on  the  car,  the  train  was 
standing  still,  and  that  a  brakeman  who  saw  him  get  on 
approached  him  from  another  car  immediately  after  the 
train  started,  and  by  threatening  gestures,  with  a  club 
in  his  hand,  frightened  him  off.  Joseph  A.  Gallagher,  a 
witness  to  the  occurrence,  after  stating  that  he  saw  the 
signal  given  to  the  engineer  by  the  brakeman  to  go  ahead, 
testified  as  follows:  "Q.  When  he  gave  that  signal, 
where  was  the  boy?  A.  He  was  about  this  far  (indicat- 
ing) on  the  car  then.  Q.  Did  the  brakeman  see  the  boy? 
Was  he  in  a  position  to  see  him?  A.  He  has  got  to  see 
the  boy.    Q.  Why?   A.  He  is  looking  right  down  at  him. 

Q.  Could  the  brakeman  see  this  boy?    A.  Yes, 

sir Q.  Was  the  boy  within  sight  of  the  brakeman? 

A.  Yes,  sir." 

At  the  close  of  the  testimony  offered  by  the  plaintiffs 
counsel  for  the  defendant  moved  the  court  to  strike  out 
all  offered  in  relation  to  the  alleged  acts  of  the  brake- 
man  of  a  threatening  nature  towards  the  boy,  for  the 
reason  that  there  was  no  averment  in  the  plaintiffs' 
declaration  of  a  wilful  and  deliberate  act  by  any  brake- 
man  in  charge  of  the  train.  The  motion  was  allowed. 
Thereupon  a  motion  was  made  for  a  nonsuit,  and  this, 
too,  was  allowed,  the  learned  trial  judge  saying  in  al- 
lowing it:  "The  plaintiffs  have  set  out  certain  allega- 
tions as  the  cause  of  this  accident,  and  then  they  have 
gone  on  to  show  other  causes  than  those  alleged.  In 
other  words,  they  have  brought  the  defendant  into  court 
to  answer  one  state  of  facts,  and  they  have  proved  an- 
other state."  Each  of  the  motions  should  have  been 
denied.  The  negligence  charged  against  the  defendant, 
as  set  forth  in  plaintiffs'  statement  of  claim,  is  the  start- 
ing of  one  of  its  trains  by  its  employees  when  they  saw 
the  injured  plaintiff — a  boy  but  eleven  years  of  age— on 
an  open  car  forming  a  part  of  the  train,  and  "requiring 
the  said  plaintiff  to  leave  the  said  car  while  in  motion, 
in  consequence  of  which  he  was  thrown  from  his  position, 


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38  TBRLBTSKI  et  al.,  Appellants,  v.  PHILA.  &  R.  BY.  CO. 
Opinion  of  the  Court.  [264  Pa. 

and  sustained  the  injuries"  of  which  he  complains.  The 
manner  in  which  he  was  required  to  get  off  the  car  was 
part  of  the  res  gestae,  and  the  plaintiffs  were  not  re- 
quired to  specifically  set  it  forth  in  their  pleadings. 

The  signal  given  to  start  the  train,  when  the  brakeman 
who  gave  it  knew  the  boy  was  on  one  of  the  cars,  was  in 
itself  a  negligent  act:  Trevethan  v.  Phila.  &  Beading 
By.  Co.,  244  Pa.  414 ;  but  the  starting  of  the  train  was 
not  in  itself  what  caused  the  injury  to  the  plaintiff.  The 
starting  of  it  and  the  frightening  of  the  boy  from  it  were 
concurrent  causes  of  his  injury,  and  it  is  so  averred  in 
the  statement  of  claim.  Simultaneously  with  the  start- 
ing of  the  train  the  boy  was  frightened  off  the  car  by  the 
employee  of  the  defendant,  according  to  the  proofs  in  the 
case,  and  as  the  pleadings  were  clearly  sufficient  to  sus- 
tain a  verdict  for  the  plaintiffs,  the  case  ought  not  to 
have  been  taken  from  the  jury. 

The  first  and  second  assignments  of  error  are  sus- 
tained and  the  judgment  is  reversed  with  a  procedendo. 


Coppola  v.  Scbaum  &  Uhlinger,  Inc.,  Appellant. 

Negligence — Master  and  servant — Safe  place  to  work — Case  for 
jury. 

Where,  in  a  negligence  case,  it  appears  that  the  plaintiff  was  a 
molder's  assistant,  and  that  he  was  injured  by  a  ladle  containing 
molten  metal  carried  by  a  fellow  workman  colliding  with  him,  the 
case  is  for  the  jury,  where  the  negligence  charged,  was  the  nar- 
rowness of  an  alleyway  in  which  the  men  were  working,  and  the 
proof  was,  that  in  the  view  of  its  narrowness,  the  alleyway  was  not 
a  reasonably  safe  place  in  which  the  men  were  compelled  to  per- 
form their  duties. 

Argued  Jan.  16,  1919.  Appeal,  No.  90,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  1,  Philadel- 
phia Co.,  March  T.,  1914,  No.  4224,  on  verdict  for  plain- 
tiff in  case  of  Anthony  Coppola  v.  Schaum  &  Uhlinger, 


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COPPOLA  v.  SCHAUM  &  UHLINGBR,  Appellant.    39 
1919.]  Statement  of  Facta — Opinion  of  the  Court. 

Inc.    Before  Brown,  C.  J.,  Moschzisker,  Frazer,  Wal- 
ling and  Kephart,  JJ.    Affirmed. 

Trespass  to  recover  damages  for  personal  injuries. 
Before  Shoemaker,  J. 

Verdict  and  judgment  for  plaintiff  for  (4,500.  De- 
fendant appealed. 

Error  assigned  was  in  refusing  to  enter  judgment  for 
defendant  n.  o.  v. 

Henry  Spalding,  of  Fell  &  Spalding,  for  appellant, 
cited:  Miller  v.  Republic  Chemical  Co.,  251  Pa.  593; 
Baldwin  v.  Urner,  206  Pa.  459;  lams  v.  Hazel  Atlas 
Glass  Co.,  251  Pa.  439;  Demby  v.  Atkins,  61  Pa.  Su- 
perior Ct.  538;  McCarthy  v.  Shoneman,  198  Pa.  568; 
Eddleman  v.  Penna.  Co.,  223  Pa.  318;  Byers  v.  Yough- 
iogheny  Coal  Co.,  230  Pa.  10;  Larsen  v.  Bailey,  249 
Pa.  247. 

Henry  J.  Scott,  with  him  Albert  T.  Hanby,  for  ap- 
pellee, cited :  Chabot  v.  Pittsburgh  Plate  Glass  Co.,  259 
Pa.  504;  Solomon  v.  Cudahy  Packing  Co.,  256  Pa.  19. 

Per  Curiam,  February  24, 1919 : 

On  September  5,  1913,  the  day  the  injuries  were  sus- 
tained for  which  this  action  was  brought,  the  appellant 
was  a  corporation  engaged  in  the  manufacture  of  ma- 
chinery. The  appellee  was  employed  by  it  as  a  helper 
to  one  of  its  moulders,  and,  in  the  course  of  his  employ- 
ment, a  ladle,  containing  molten  metal,  carried  by  a  fel- 
low workman,  collided  with  him,  causing  its  contents 
to  severely  burn  his  foot.  The  negligence  charged  is  the 
narrowness  of  the  "alleyway"  in  which  the  men  were 
working,  and  there  was  testimony  that,  in  view  of  its 
narrowness,  it  was  not  a  reasonably  safe  place  in  which 
they  were  compelled  to  perform  their  duties.  This  was 
really  the  only  issue  in  the  case,  and  it  was  submitted  to 


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40    COPPOLA  v.  SCHAUM  &  UHLINGBB,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

the  jury  under  the  following  correct  instruction:  "You 
have  to  find  whether  the  defendant  in  this  case  was  guilty 
of  negligence  in  not  providing  a  reasonably  safe  place 
for  the  plaintiff  to  work  in.  If  you  find  that  the  defend- 
ant did  provide  such  a  place,  as  people  in  the  same  line 
of  business  provide,  an  ordinary  passageway,  or  sur- 
roundings there,  then  your  verdict  ought  to  be  for  the 
defendant.  If,  however,  you  find  that  it  did  not,  and  also 
find  that  the  plaintiff  did  not  by  his  negligence  contrib- 
ute to  the  accident,  then  your  verdict  ought  to  be  for  the 
plaintiff.  If  the  plaintiff  in  any  degree  contributed  to 
the  accident  by  his  negligence,  that  would  prevent  him 
from  recovering,  notwithstanding  the  fact  that  you  find 
the  defendant  was  negligent."  As  the  case  was  clearly 
for  the  jury,  the  single  complaint  of  the  appellant,  that 
a  verdict  was  not  directed  in  its  favor,  is  dismissed,  and 
the  judgment  is  affirmed. 


Colonial  Biscuit  Co.,  Appellant,  v.  Orcutt. 

Corporations — Stock — Issue  of  stock  for  services — Directors. 

In  an  equity  case  for  the  cancellation  of  stock  issued  to  a  director 
and  officer  of  a  corporation,  a  decree  dismissing  the  bill  will  be 
sustained,  where  the  court  below  finds  as  a  fact  that  the  stock  was 
issued  for  services  rendered  in  reorganizing  the  company,  that  the 
value  of  such  services  was  determined  by  the  directors,  and  that  no 
fraudulent  intent  on  the  part  of  the  directors  was  shown  in  con- 
nection with  the  issue. 

Argued  Jan.  22, 1919.  Appeal,  No.  173,  Jan.  T.,  1919, 
by  plaintiff,  from  decree  of  C.  P.  No.  3,  Philadelphia  Co., 
Dec.  T.,  1916,  No.  4413,  dismissing  bill  in  equity  in  case 
of  Colonial  Biscuit  Company  v.  Charles  Orcutt.  Before 
Stewart,  Frazbb,  Walling,  Simpson  and  Kbphart,  J  J. 
Affirmed. 

Bill  in  equity  for  the  cancellation  of  stock. 

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COLONIAL  BISCUIT  CO.,  Appellant,  v.  OBCUTT.  41 
1919.]  Statement  of  Facts. 

Fbbguson,  J.,  after  stating  facts  and  conclusion  of  law 
discussed  the  case  as  follows : 

On  May  13, 1908,  a  receiver  was  appointed  to  take  over 
and  conduct  the  business  of  the  Colonial  Biscuit  Com- 
pany. The  receivership  continued  until  December  15, 
1913.  About  two  years  before  the  last  date  Charles  H. 
W.  Cliff,  the  president  of  the  company,  solicited  the  in- 
terest and  services  of  the  defendant  in  bringing  about 
the  reorganization  of  the  company,  telling  him  that  he 
thought  he  could  secure  him  a  position  in  the  company 
and  some  of  the  capital  stock  if  the  reorganization  was 
accomplished.  During  that  period  of  two  years  the  de- 
fendant made  efforts,  most  of  them  vaguely  described, 
to  induce  some  persons  to  take  an  interest  financially  in 
the  corporation.  He  purchased  a  few  claims  of  creditors, 
being  afterwards  reimbursed  for  the  amounts  thus  ex- 
pended. He  induced  the  bank,  which  was  a  creditor  of 
the  company,  to  offer  to  extend  a  larger  credit  if  certain 
bonds  were  deposited  with  the  bank  as  additional  se- 
curity. The  actual  procuring  of  these  bonds  was  the 
work  of  the  president  of  the  company.  As  a  result,  how- 
ever, of  their  joint  efforts  the  additional  credit  was  ob- 
tained from  the  bank  and  the  reorganization  was  assured 
of  success.  On  December  2,  1913,  nearly  two  weeks  be- 
fore the  company  passed  out  of  the  hands  of  the  receiver, 
the  defendant  was  elected  a  director  and  also  the  secre- 
tary and  treasurer  of  the  company.  On  the  5th  day  of 
December,  1913,  an  elaborate  agreement  participated  in 
by  bondholders  and  stockholders  was  made,  which  agree- 
ment was  ratified  by  the  board  of  directors.  This  agree- 
ment provided  for  the  method  of  reorganization  and 
among  other  things  there  was  to  be  an  increase  in  the 
capital  stock  from  twenty-five  thousand  to  one  hundred 
thousand  dollars.  A  part  of  this  common  stock  was  to 
be  distributed  as  therein  provided  and  the  residue  to  re- 
main in  the  treasury.  As  above  stated,  on  December  15, 
1913,  the  receivership  ended. 


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42    COLONIAL  BISCUIT  CO.,  Appellant,  v.  ORCUTT. 

Statement  of  Facts.  [264  Pa. 

When  the  reorganization  of  the  company  seemed  about 
to  be  accomplished  the  defendant  suggested  to  the  presi- 
dent that  he  ought  to  have  some  of  the  stock.  To  this  the 
president  assented,  but  said  it  would  have  to  be  arranged 
later.  No  definite  promise  was  made  and  no  amount  of 
stock  was  suggested.  Some  months  after  the  reorgani- 
zation was  completed  and  while  the  defendant  was  act- 
ing as  secretary  and  a  member  of  the  board  of  directors 
he  again  expressed  his  desire  to  have  some  of  the  capital 
stock,  in  consideration  for  his  services  rendered.  To  this 
suggestion  the  president  replied  it  could  not  be  done  at 
that  time,  because  the  board  of  directors  as  then  consti- 
tuted would  not  approve.  He  agreed,  however,  to  give  a 
letter  certifying  that  the  company  was  indebted  for  150 
shares  of  stock  for  the  services  referred  to.  The  letter 
was  prepared  and  it  was  intended  that  it  should  be  dated 
prior  to  the  time  of  the  reorganization.  In  point  of  fact 
the  letter  was  dated  January  10,  1915,  more  than  a  year 
after  the  reorganization,  and  instead  of  containing  a 
certificate  that  the  company  was  indebted  for  150  shares 
of  stock  it  declared  that  it  was  indebted  for  15,000 
shares.  This  was  another  blunder,  as  it  is  probable  it 
was  intended  to  state  the  par  value  of  150  shares. 

On  October  21, 1915,  the  then  board  of  directors  adopt- 
ed a  resolution  that  there  i>e  issued  to  the  defendant  150 
shares  of  common  stock  "in  payment  for  services  ren- 
dered in  reorganizing  the  company."  Following  this 
resolution  a  certificate  of  stock  was  issued  to  the  defend- 
ant. On  December  21,  1916,  the  then  board  of  directors 
passed  a  resolution  rescinding  and  revoking  the  resolu- 
tion of  October  21,  1915,  declaring  the  issue  of  stock 
without  consideration  and  void,  and  instructing  the 
president  to  institute  proceedings  to  enforce  the  resolu- 
tion for  the  purpose  of  having  the  stock  cancelled.  That 
resolution  was  afterwards  ratified  at  a  meeting  of  the 
stockholders  held  February  8,  1917,  and  these  proceed- 
ings are  for  the  purpose  of  compelling  the  cancellation  of 


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COLONIAL  BISCUIT  CO.,  Appellant,  v.  ORCUTT.    43 
1919.]  Statement  of  Facte, 

the  stock  and  for  an  injunction  restraining  the  transfer 
thereof. 

There  is  no  evidence  that  anybody  connected  with  the 
corporation  knew  of  the  understanding  between  Cliff 
and  Orcutt  prior  to  the  reorganization  of  the  company. 
There  was  no  contract  made  by  Cliff  which  could  have 
been  enforced  against  the  company.  Prior  to  the  reor- 
ganization Cliff  had  merely  said  that  he  thought  the  de- 
fendant ought  to  have  some  stock  but  he  neither  prom- 
ised it  nor,  if  he  did  promise  it,  did  he  state  the  amount. 
Nothing  was  done  with  reference  to  the  matter  until 
nearly  two  years  after  the  reorganization  was  completed, 
and  during  these  years  the  defendant  acted  as  director 
and  secretary  and  treasurer,  and  as  secretary  and  treas- 
urer he  received  a  regular  salary. 

There  are  features  in  the  evidence  which  do  not  reflect 
favorably  upon  these  two  men.  If  the  defendant  was 
to  receive  stock  for  his  services,  it  was  not  made  known 
to  the  stockholders  or  submitted  to  the  board  of  directors 
after  the  reorganization  because  that  board  was  sup- 
posed to  be  so  constituted  that  it  was  not  thought  such 
a  proposition  would  be  acceptable.  No  demand  was 
made  by  defendant  for  compensation.  That  matter  was 
postponed  until  a  friendly  board  of  directors  was  in 
office,  and  so  far  as  the  evidence  shows  the  matter  was 
not  brought  to  the  attention  of  the  stockholders  until 
after  the  stock  was  issued.  In  addition,  there  was  a 
clumsy  attempt  to  make  a  contract  in  writing  and  to 
antedate  it,  which  by  some  carelessness  failed.  To  all 
these  matters  the  defendant  was  a  party.  The  president 
of  the  company,  in  addition  to  his  participation  in  the 
matters  referred  to,  now  desires  for  some  reason  to  re- 
pudiate the  matter  which  he  was  instrumental  in  bring- 
ing about.  It  is  true  the  bill  is  filed  by  the  corporation 
and  the  president  is  not  a  party,  but  he  holds  or  controls 
a  large  part  of  the  capital  stock  and  is  practically  the 
only  witness  in  support  of  the  bill. 


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44    COLONIAL  BISCUIT  CO.,  Appellant,  v.  ORCUTT. 

Statement  of  Facts.  [264  Pa. 

In  our  opinion  the  bill  should  be  dismissed.  It  is 
true  as  a  matter  of  law  that  capital  stock  may  be  issued 
only  for  money,  labor  done  or  property  actually  received, 
but  we  cannot  say  that  the  services  rendered  for  the  com- 
pany by  the  defendant  were  not  such  services  as  could 
be  compensated  for  by  the  issuance  of  capital  stock.  The 
company  had  been  in  the  hands  of  the  receiver  for  several 
years.  The  defendant's  services  were  rather  vaguely  de- 
scribed, but  there  can  be  no  doubt  he  assisted  in  pro- 
curing the  reorganization.  It  may  be  he  was  not  the  sole 
cause  in  bringing  about  the  result.  The  president  may 
have  had  his  part  in  it,  but  the  latter  apparently  thought 
that  what  was  done  was  of  sufficient  value  to  justify  the 
action  that  was  taken.  To  the  board  of  directors  was 
committed  the  power  to  administer  the  affairs  of  the 
corporation.  They  had  a  right  to  sell  treasury  stock  for 
cash  or  for  services.  If,  at  the  time  of  the  resolution,  the 
board  of  directors  as  then  constituted  recognized  an  ob- 
ligation to  compensate  the  defendant  for  his  services  by 
issuing  150  shares  of  capital  stock  it  must  be  considered 
as  having  appraised  those  services  and  placing  that 
value  upon  them.  The  value  of  the  stock  does  not  ap- 
pear in  evidence  and  we  have  no  way  of  appraising  it. 
As  above  stated,  the  president  could  not  make  a  contract 
either  before  or  after  the  reorganization  which  would 
bind  the  company.  But  if  the  board  of  directors,  the 
legal  custodians  of  the  property  of  the  corporation,  rati- 
fied his  indefinite  promise  and  gave  it  form  it  is  beyond 
our  power  to  say  there  was  no  value  given  or  that  the 
value  thus  fixed  was  excessive. 

This  is  not  the  case  of  an  officer  or  director  seeking 
compensation  for  services  rendered  during  the  term  for 
which  he  was  elected ;  neither  is  it  the  case  of  one  instru- 
mental in  bringing  about  a  formation  or  reorganization 
of  a  corporation  who  seeks  to  compel  the  enforcement  of 
a  contract  made  by  one  not  authorized  to  make  it.  It  is 
rather  the  case  of  an  indefinite  contract  for  services 
rendered  in  the  past  and  having  some  substance,  which 


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COLONIAL  BISCUIT  CO.,  Appellant,  v.  ORCUTT.    45 
1919.]  Statement  of  Facts — Opinion  of  the  Court, 

contract  was  formally  ratified  by  the  board  of  directors 
of  the  corporation.  In  such  case  a  court  of  equity  can- 
not grant  relief. 

The  prothonotary  is  directed  to  notify  the  parties  op 
their  counsel  of  the  filing  of  the  above  adjudication,  and 
that  unless  exceptions  thereto  are  filed  within  ten  days 
a  decree  will  be  entered  in  accordance  therewith. 

A  decree  was  entered  accordingly.    Plaintiff  appealed. 

Error  assigned  was  decree  dismissing  the  bill. 

E.  Stanley  Richardson,  for  appellant. 

Henry  J.  Scott,  with  him  Albert  T.  Hariby,  for  ap- 
pellee. 

Pbk  Curiam,  February  24, 1919 : 

Nothing  need  to  be  added  to  the  very  satisfactory  opin- 
ion of  the  learned  President  Judge  in  the  court  below. 
None  of  his  findings  are  lacking  in  adequate  support  in 
the  evidence,  while  his  conclusions  of  law  commend 
themselves  to  our  approval.  The  contention  of  appellant 
that  statutory  restrictions  are  conditions  of  the  power 
in  corporations  to  issue  capital  stock  is  conceded;  but 
on  the  facts  of  this  case  there  was  no  violation  of  any 
conditions ;  the  stock  issued  to  the  plaintiff  was  for  serv- 
ices rendered  the  corporation,  the  value  of  which  was  de- 
termined by  the  directors  of  the  company.  The  compen- 
sation allowed  for  the  services  may  have  inclined 
towards  extravagance,  but  that  is  not  a  matter  for  our 
consideration.  It  is  impossible  to  derive  any  fraudulent 
intent  on  the  part  of  the  directors  in  connection  there- 
with. For  the  reasons  so  clearly  stated  in  the  discussion 
of  the  case  by  the  learned  President  Judge  the  appeal  is 
dismissed. 


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46     FBENEY  v.  MARYLAND  CASUALTY  CO.,  AppeL 

Syllabus — Arguments.  [264  Pa. 

Feeney  v.  Maryland  Casualty  Co.,  Appellant. 

Contract — Written  contract — Failure  of  minds  to  agree — Im- 
proper submission  of  case  to  jury — Province  of  court — Interprets 
Hon  of  correspondence. 

Where  in  an  action  on  an  alleged  contract  it  appears  that  all  of 
the  negotiations  between  the  parties  were  in  writing,  without  any 
oral  communications  whatever,  and  that  the  last  letter  addressed 
by  plaintiff  to  defendant  was  an  absolute  refusal  of  defendant's 
offer,  it  is  error  for  the  court  to  submit  to  the  jury  the  question 
whether  a  contract  was  in  fact  made;  and  if  the  jury  return  a 
verdict  in  favor  of  the  plaintiff,  a  judgment  on  such  verdict  will 
be  reversed.  In  such  a  case  the  interpretation  of  the  correspond- 
ence and  its  legal  effect  are  exclusively  for  the  court. 

Argued  Jan.  22, 1919.  Appeal,  No.  178,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  2,  Philadelphia 
Co.,  Dec.  T.,  1914,  No.  847,  on  verdict  for  plaintiff  in 
case  of  John  P.  Feeney,  a  minor,  by  his  mother  and 
next  friend,  v.  Maryland  Casualty  Company.  Before 
Stewart,  Fsazbs,  Walling,  Simpson  and  Kbphabt, 
JJ.    Reversed. 

Assumpsit  on  an  alleged  contract.    Before  Rogers,  J. 

At  the  trial  the  jury  returned  a  verdict  for  plaintiff 
for  f 2,830.  Defendant  moved  for  judgment  n.  o.  v.,  which 
was  refused,  and  judgment  entered  for  plaintiff.  De- 
fendant appealed. 

Error  assigned  was  in  refusing  defendant's  motion  for 
judgment  n.  o.  v. 

Maurice  W.  Sloan,  for  appellant,  cited:  Swing  v. 
Walker,  27  Pa.  Superior  Ct.  366. 

Michael  J.  Oeraghty,  for  appellee. — The  case  was 
for  the  jury :  Rice  v.  Lake  Twp.,  40  Pa.  Superior  Ct.  337 ; 
Philadelphia  to  use  v.  Stewart,  201  Pa.  526;  Watson  v. 
Blaine,  12  S.  &  R.  131;  Young  v.  Slatington  Rolling 
Mills,  56  Pa.  Superior  Ct.  134. 


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FEENEY  v.  MARYLAND  CASUALTY  CO.,  AppeL  47 
1919.]  Arguments — Opinion  of  the  Court. 

The  case  at  bar  is,  in  many  of  its  features,  analogous 
to  that  of  Bond  v.  Gardiner,  4  Binney  269. 

Opinion  by  Me.  Justice  Stewart,  February  24, 1919 : 
James  P.  .Feeney,  a  minor,  while  in  the  employ  of 
James  G.  Doak  &  Company,  contractors,  then  engaged  in 
the  erection  of  a  hotel  building  in  the  City  of  Philadel- 
phia, was  injured  by  being  struck  on  the  head  by  a  brick 
which  fell  from  one  of  the  upper  stories  of  the  building. 
He  brought  suit  by  his  mother  and  next  friend  against 
James  G.  Doak  &  Company  to  recover  damages  for  the 
injuries  he  sustained,  and,  on  October  17,  1914,  he  ob- 
tained a  verdict  in  the  sum  of  $1,500.  He  filed  a  motion 
for  a  new  trial  on  the  ground  of  inadequacy  in  the  ver- 
dict. The  court  being  of  opinion  that  in  view  of  the 
serious  injury  plaintiff  had  sustained,  he  was  entitled  to 
recover  larger  compensation,  suggested  upon  argument 
of  the  motion  that  except  as  the  amount  was  increased  by 
the  voluntary  action  of  the  defendant  to  a  minimum  of 
f 2,500,  the  motion  for  a  new  trial  would  likely  prevail. 
The  motion  was  held  as  pending  to  give  the  counsel  for 
defendant  opportunity  to  consult  with  his  clients.  The 
defendant  in  the  action  was  insured  against  liability  for 
such  accidents  as  this  by  the  Maryland  Casualty  Com- 
pany. The  latter,  though  not  a  party  to  the  action,  was 
represented  at  the  trial  of  the  case  by  the  same  counsel 
who  appeared  for  the  defendant.  The  casualty  com- 
pany being  informed  of  the  motion  pending  and  the  prob- 
able action  of  the  court,  instructed  their  counsel  to  sub- 
mit an  offer  to  increase  the  sum  to  f  2,500.  On  29th  Oc- 
tober following,  the  counsel  communicated  this  fact  to 
the  several  members  of  the  court  and  the  plaintiffs  coun- 
sel as  well.  In  a  letter  addressed  to  the  latter,  he  stated 
that  as  soon  as  the  latter  signified  his  willingness  to  ac- 
cept he  would  send  him  a  check  for  the  amount  agreed 
upon.  To  this  letter  counsel  for  the  plaintiff  replied 
under  date  of  October  30th,  as  follows :  "In  re  Feeney  et 
al.  v.  Doak  &  Company.    I  beg  leave  to  acknowledge  re- 


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48     PBENEY  v.  MABTLAND  CASUALTY  CO.,  AppeL 

Opinion  of  the  Court.  [264  Pa. 

ceipt  of  your  letter  of  yesterday  offering  f  2,500  in  com- 
promise of  the  above  entitled  cause  in  which  a  verdict  for 
f  1,500  was  obtained  before  Judge  Barbatt  on  the  17th 
inst.  It  is  needless  to  inform  you  that  my  clients  were 
very  sorely  disappointed  at  what  they  believed  to  be  the 
inadequacy  of  the  verdict.  And  they  believe  that  $5,000 
would  be  poor  recompense  to  young  Mr.  Feeney  for  the 
injury  which  befell  him  through  no  fault  of  his  own .... 
Both  my  client  and  myself  would  much  prefer  a  new 
trial  to  a  settlement  for  less  than  the  above  stated  sum. 
However,  I  am  not  averse  to  entertaining  a  proposition 
that  would  be  fair'to  both  parties,  and  am  therefore  will- 
ing that  the  court  in  banc  may  decide  what  amount  in 

excess  of  $2,500  shall  be  paid  to  my  client They  to 

abide  by  the  court's  decision."  The  day  following  coun- 
sel for  defendant  replied  by  letter,  the  only  part  of  which 
that  is  here  pertinent  being  in  these  words:  "As  my 
clients  have  agreed  to  do  what  the  court  suggested,  I  feel 
it  is  all  you  should  ask.  I  must  therefore  decline  to  in- 
crease the  offer  which  has  been  made."  Three  days  after 
plaintiffs  counsel  replied  as  follows :  "In  answer  to  your 
letter  of  the  31st  concerning  the  above  entitled  matter  in 
which  you  declined  to  offer  more  than  $2,500  in  com- 
promise thereof,  I  beg  leave  to  advise  you  that  the  above 
mentioned  amount  is  very  unsatisfactory  to  my  client 
John  Feeney,  and  his  mother,  both  of  whom  would  much 
prefer  a  new  trial  to  an  acceptance  of  the  sum  proffered. 
That  there  may  be  no  unnecessary  delay  in  this  matter 
will  you  kindly  meet  me  about  9 :  45  a.  m.  next  Saturday 
in  C.  P.  No.  2  for  the  purpose  of  asking  the  judges  to  de- 
cide whether  I  shall  have  a  new  trial  or  not."  Here  an 
interval  of  three  weeks  occurred  with  nothing  passing 
from  either  side  to  the  other  in  regard  to  the  proposed 
compromise  or  settlement ;  but  during  this  period  finan- 
cial difficulties  overtook  James  G.  Doafc  &  Company  and 
their  affairs  passed  into  the  hands  of  receivers.  On  No- 
vember 27th,  plaintiff's  counsel  wrote  defendant's  coun- 
sel as  follows :  "I  have  before  me  a  copy  of  your  letter 


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FEENBY  v.  MARYLAND  CASUALTY  CO.,  Appel.     49 
1919.]  Opinion  of  the  Court. 

of  the  29th,  in  which  it  is  stated  'my  clients  have  ap- 
proved of  my  suggestion  to  them  to  pay  f  2,500  in  settle- 
ment of  this  case.'  While  my  clients  and  myself  are  firm- 
ly of  opinion  that  said  amount  is  inadequate  to  compen- 
sate the  injury  which  young  Mr.  Feeney  suffered,  never- 
theless, he  and  his  mother  who  were  the  plaintiffs,  rather 
than  undergo  the  ordeal  of  a  second  trial,  are  willing  to 
accept  the  said  amount,  and  on  their  behalf  I  accept  your 
offer  of  compromise."  On  December  2d,  counsel  for  the 
casualty  company  replied  to  this  letter,  in  part,  as  fol- 
lows :  "On  November  3d  you  wrote  me  that  your  clients 
were  not  satisfied  with  the  amount  offered  in  my  letter, 
and  that  you  preferred  a  new  trial  to  the  acceptance  of 
the  sum  proffered.  I  sent  your  letter  to  my  clients,  and 
they  then  thought  the  matter  was  at  an  end.  Since  your 
letter  of  November  3d,  Doak  &  Company  have  gone  into 
the  hands  of  a  receiver,  and  my  clients  advise  me  that 
they  are  not  willing  to  pay  12,500."  As  a,  next  step  the 
plaintiff  withdrew  his  motion  for  a  new  trial,  caused 
judgment  to  be  entered  on  the  verdict  for  f  1,500,  then 
proceeded  by  execution  process  and  attachment  to  col- 
lect the  same,  and  shortly  thereafter  brought  the  present 
action  against  the  Maryland  Casualty  Company,  com- 
plaining that  the  company  was  indebted  to  him  in  the 
sum  of  f  2,500,  which  sum  the  said  casualty  company, 
the  insurer  of  James  G.  Doak  &  Company  against  lia- 
bility, agreed  to  pay  the  plaintiff  in  satisfaction  and 
compromise  of  the  claim  therein  sued  for  and  for  which 
a  verdict  had  been  rendered.  The  claim  thus  made  was 
without  support  except  as  such  support  is  found  in  the 
correspondence  we  have  given  above  between  the  respec- 
tive counsel,  the  genuineness  of  which  was  admitted. 
The  parol  evidence  in  the  case  had  not  even  remote  bear- 
ing on  the  question.  The  alleged  contract  being  in  writ- 
ing and  the  correspondence  disclosing  nothing  that  was 
the  subject  of  dispute,  the  interpretation  of  the  corre- 
spondence and  its  legal  effect  were  exclusively  for  the 
court ;  nevertheless,  declining  the  motion  of  defendants 
Vol.  cciiXrv — 1 

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50     PEENBY  v.  MABYLAND  CASUALTY  CO.,  AppeL 

Opinion  of  the  Court.  [264  Pa. 

for  binding  instructions  the  court  submitted  the  case  to 
the  jury  to  find  ( 1 )  whether  through  its  counsel  the  defend- 
ant had  made  an  offer  to  plaintiff  of  12,500  in  settlement, 
and  (2)  whether  if  such  offer  had  been  made,  there  was 
an  acceptance  of  it  by  the  plaintiff,  with  this  instruction, 
"If  you  conclude  from  all  the  testimony,  that  there  was 
a  bona  fide  acceptance  of  the  offer,  then  the  plaintiff  had 
a  right  to  recover  in  this  action.  If,  on  the  other  hand, 
you  are  of  opinion  from  all  the  evidence  that  you  have 
heard,  that  this  offer  that  was  made  by  the  Maryland 
Casualty  Company  to  Mr.  Feeney,  the  plaintiff,  was  not 
in  fact  accepted,  but  that  the  letters  of  October  30th 
and  of  November  3d,  sent  by  Mr.  Geraghty  to  Mr.  Sloan 
was  a  refusal  of  the  offer  made,  then  that  is  the  end  of 
the  case  and  your  verdict  must  be  for  the  defendant." 
The  letter  of  Mr.  Geraghty  referred  to  admits  of  but  one 
construction;  it  was  a  distinct  and  positive  refusal  of 
the  offer  made  by  Mr.  Sloan  in  his  letter  of  3d  of  No- 
vember, to  which  this  was  a  reply,  accompanied  by  a 
statement  that  both  his  client  and  himself  would  prefer 
the  hazard  of  a  new  trial  to  a  settlement  for  the  amount 
offered,  but  that  they  would  be  willing  that  the  court  in 
banc  should  decide  what  amount  in  excess  of  $2,500 
should  be  paid,  the  parties  to  abide  by  such  a  decision. 
A  verdict  was  rendered  for  $2,830  which  included  inter- 
est. A  motion  for  a  new  trial  was  made  and  withdrawn 
and  at  the  same  time  a  motion  for  judgment  non  ob- 
stante, which  was  refused.  The  appeal  is  from  the  judg- 
ment then  entered. 

The  case  calls  for  no  discussion.  The  correspondence 
shows  clearly  that  there  was  at  no  time  a  concurrence  of 
view  touching  the  proposed  settlement.  At  no  time  had 
a  mutual  understanding  been  reached  in  regard  to  the 
terms.  It  follows  that  no  contract  had  been  entered  into 
and  that  the  defendant's  motion  for  judgment  non  ob- 
stante should  have  prevailed.  The  judgment  is  reversed, 
and  now  judgment  for  the  defendant  is  entered. 


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KRUGER'S  ESTATE.  51 

1910.1  Syllabus. 

Kruger's  Estate. 

Contract — Consideration — Fraud— Evidence —  Receipt — Princi- 
pal and  agent — Disclosed  principal — Decedents'  estates. 

1.  At  the  audit  of  the  account  of  an  executor  of  an  insolvent  dece- 
dent a  claim  was  presented  for  $25,000  based  on  a  writing  signed  by 
decedent.  It  appeared  that  decedent  had  been  the  president  of  a 
street  railway  company,  and  that  the  claimant  was  a  plumber.  Two 
years  before  decedent's  death  it  was  discovered  that  the  railway 
company  had  been  illicitly  tapping  fire  lines  and  unlawfully  using 
city  water.  Claimant  found  this  out,  and  suggested  to  decedent 
that,  if  he  were  given  the  contract  to  meter  the  fire  lines,  he  could 
arrange  it  so  that  the  city  would  make  no  claim  for  water  previously 
illicitly  used.  An  oral  contract  was  then  made  by  which  a  certain 
amount  was  fixed  for  construction  work,  and  a  further  sum  of 
fifteen  per  cent  on  the  savings  due  to  such  metering.  Claimant 
was  paid  by  the  company  for  the  construction  work  and  receipted 
in  full  "for  all  services  rendered."  Subsequently  claimant  pressed 
the  decedent  to  pay  him  the  percentage  for  the  saving,  and  as  a 
result  decedent  prepared  a  paper  which  was  signed  by  both.  In 
this  paper  it  was  recited  that  claimant  had  agreed  to  accept  $25,- 
000  in  full  payment  for  metering  and  that  decedent  had  agreed 
to  pay  fifteen  per  cent  on  the  savings  from  the  metering.  The 
decedent  bound  himself,  his  heirs,  executors  and  assigns,  and  the 
company,  to  protect  claimant  for  the  full  amount  of  $25,000,  further 
stating,  "I  will  see  the  above  sum  is  paid  you  in  amounts  as  may 
be  required  from  time  to  time  for  your  personal  use."  The  con- 
sideration was  stated  in  the  following  language :  "In  consideration 
of  the  faithful  and  efficient  service  rendered  by  you  to  the  com- 
pany, and  to  me  in  the  matter  of  metering  the  fire  lines  for  the 
company." 

2.  The  only  allegation  of  fraud  was  that  claimant  had  deceived 
decedent  into  the  original  agreement,  not  that  the  contract  in  ques- 
tion grew  out  of  fraud  against  the  city.  The  court  found  as  a  fact 
from  the  evidence  in  the  case  that  the  promise  of  the  payment  of 
percentage  on  the  savings  was  the  express  promise  of  the  decedent, 
and  that  there  was  no  fraud.  Held,  (1)  that  the  receipt  to  the  com- 
pany did  not  bar  claimant  from  demanding  payment  of  the  per- 
centage from  the  decedent's  estate;  (2)  that  the  writing  and  the 
other  evidence  were  sufficient  to  establish  a  contract  of  the  decedent 
based  on  a  valuable  consideration  to  pay  claimant  the  Bum  of  $25,- 


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52  KRUGER'S  ESTATE. 

Syllabus — Arguments.  [264  Pa. 

000;  (3)  the  evidence  was  not  sufficient  to  establish  fraud;  and  (4) 
there  was  a  valuable  consideration. 

Argued  Feb.  3, 1919.  Appeals,  Nos.  328,  332,  Jan.  T., 
1917,  by  Third  National  Bank  of  Philadelphia  and 
Charles  R.  Wannemacher,  from  decree  of  O.  C.  Mont- 
gomery Co.,  June  T.,  1916,  No.  42,  dismissing  exceptions 
to  adjudication  in  Estate  of  Charles  O.  Kruger,  de- 
ceased. Before  Brown,  C.  J.,  Stewart,  Moschzisker, 
Walling  and  Simpson,  JJ.    Affirmed. 

Exceptions  to  adjudication.    Before  Solly,  J. 
The  exceptions  to  the  adjudication  were  dismissed. 
Exceptants  appealed. 

Errors  assigned  were  in  dismissing  exceptions  to  ad* 
judication. 

Stanley  Folz,  of  Sundheim,  Folz  &  Fleisher,  with  him 
Nicholas  H.  Larzelere,  Humbert  B.  Powell,  and  Mowitz 
&  Solis-Cohen,  for  appellants. — There  was  no  valuable 
consideration  for  the  Purdy-Kruger  agreement  of  May 
1, 1913,  to  entitle  Purdy  to  participate  with  creditors  in 
the  distribution  of  Mr.  Kruger's  insolvent  estate :  Burk* 
holder  v.  Plank,  69  Pa.  225;  Oberly  v.  Oberly,  190  Pa. 
341;  Hoffman's  Est.,  32  Pa.  Superior  Ct.  646;  Candor's 
App.,  27  Pa.  119;  HummePs  Est.,  161  Pa.  215;  Kern's 
Est.,  171  Pa.  55. 

A  valid  ratification,  being  equivalent  to  prior  au- 
thority, relieves  the  agent  from  liability  to  the  third 
person.  By  ratification,  the  principal  assumes  all  re- 
sponsibility for  the  act  of  the  agent  and  the  agent  is 
thereby  relieved  of  responsibility :  Berger's  App.,  96  Pa. 
443 ;  Hopkins  v.  Everly,  150  Pa.  117 ;  Harper  v.  Jack- 
son, 240  Pa.  312. 

An  express  promise  to  pay  for  services  already  ren- 
dered under  circumstances  under  which  the  law  imposes 
no  liability  upon  the  promisor,  will  not  be  enforced 


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KBUGER'S  ESTATE.  53 

1919.]  Arguments — Opinion  of  the  Court 

against  the  promisor's  estate :  Fross's  App.,  105  Pa.  258 ; 
Martin's  Est.,  131  Pa.  638. 

Montgomery  Evans,  of  Evans,  High,  Dettra  &  Bwwrtz, 
with  him  Weaver  &  Drake,  for  appellee. — The  contract 
in  question  is  under  seal,  and,  therefore,  imports  a  con- 
sideration and  creates  a  legal  obligation :  Candor  &  Hen- 
derson's App.,  27  Pa.  119 ;  Cosgrove  v.  Cummings,  195 
Pa.  497. 

Even  if  there  were  no  legally  enforceable  obligation 
upon  the  obligor,  yet  if  there  were  a  moral  obligation,  it 
is  sufficient  to  sustain  a  subsequent  promise  to  pay: 
Geiselbrecht  v.  Geiselbrecht,  8  Pa.  Superior  Ct.  183; 
Bailey  v.  Phila.,  167  Pa.  569;  Anderson  v.  Best,  176  Pa. 
498;  Weber  v.  Boland,  39  Pa.  Superior  Ct.  611. 

This  is  true  even  against  a  third  person  who  promises 
to  pay  the  debt  of  a  person  whose  obligation  was  void : 
Leonard  v.  Duffin,  94  Pa.  213;  Snyder's  Est.,  7  Kulp 
409;  Owens  v.  Wehrle,  14  Pa.  Superior  Ct.  536;  Yard  v. 
Patton,  13  Pa.  278;  Burkholder  v.  Plank,  69  Pa.  225. 

Where  a  deed  is  alleged  to  be  fraudulent  against  the 
creditors  of  grantor,  the  recital  of  consideration  in  the 
deed  must  prevail  in  the  absence  of  substantial  evidence 
of  fraud :  Ball  v.  Campbell,  134  Pa.  602. 

A  search  of  the  entire  record  will  show  that  there  is 
not  a  word  of  testimony  to  the  effect  that  Purdy  either 
contracted  with  or  made  a  claim  against  the  Philadel- 
phia Rapid  Transit  Company  on  account  of  the  claim 
covered  by  this  bond  of  Kruger's. 

Opinion  by  Mr.  Justice  Moschzisker,  February  24, 
1919: 

Charles  O.  Kruger  died,  insolvent,  October  4,  1914; 
at  the  audit  of  his  executor's  account,  a  claim  for  f  19,- 
300  was  presented  by  William  B.  Purdy,  being  the  balance 
due  on  a  contract  under  seal,  wherein  the  decedent  ac- 
knowledged himself  indebted  to  Purdy  in  the  sum  of 
125,000.    The  claim  was  allowed ;  but,  subsequently,  cer- 

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54  KRUGER'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

tain  creditors  petitioned  for  a  reconsideration  of  the 
adjudication;  after  weighing  the  testimony  relating  to 
this  application,  the  court  below  determined  that  the 
grounds  depended  upon  by  petitioners  were  not  sus- 
tained, and  refused  to  change  its  prior  allowance  of  the 
claim.    The  petitioning  creditors  have  appealed. 

In  April,  1912,  Purdy,  who  is  engaged  in  the  plumbing 
business,  told  Kruger  that  the  Philadelphia  Rapid 
Transit  Company,  of  which  the  latter  was  president  and 
general  manager,  had  been  illicitly  tapping  fire  lines 
connected  with  certain  of  its  car  barns,  and  that,  if  he, 
the  informant,  were  awarded  a  contract  to  meter  all 
such  lines,  he  could  arrange  it  so  the  city  would  make 
no  claim  for  water  previously  used  therefrom.  Kruger 
accepted  this  suggestion,  and  entered  into  an  oral  ar* 
rangement  with  Purdy,  whereby  it  was  agreed  that,  after 
making  required  investigations  in  the  water  department 
of  the  city,  Purdy  should  meter  the  fire  lines  wherever 
necessary,  he  to  be  paid  the  cost  of  construction,  plus 
ten  per  cent,  and  also  the  further  sum  of  fifteen  per  cent 
on  the  savings  due  to  such  metering. 

Purdy  was  paid  by  the  transit  company  for  his  actual 
construction  work;  and,  early  in  1915,  received  from 
that  concern  two  checks,  or  vouchers,  for  $1,500  each, 
the  last  paid  February  7th,  containing  this  statement: 
"In  full  payment  for  all  services  rendered  Philadelphia 
Rapid  Transit  Co.  to  Jan.  31, 1913." 

At  the  same  time,  Purdy  was  pressing  Kruger  for  set- 
tlement of  the  percentage  compensation  which  the  for- 
mer alleged  to  be  due  him  on  account  of  the  savings  ef- 
fected by  his  work;  and,  in  this  connection,  on  May  1, 
1913,  Kruger  prepared  and  presented  to  Purdy  the  writ- 
ten contract  upon  which  he  bases  his  present  claim. 

It  will  be  noticed  that  this  contract,  which  we  are 
about  to  recite,  adjusts  and  fixes  the  then  controverted 
and  unascertained  amount  of  the  percentages,  at  $ 25,- 
000,  which  sum  Purdy  agreed  to  accept  in  full; 
further,  the  writing  contains  an  acknowledgment  that 


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KRUGER 'S  ESTATE.  55 

1919.]  Opinion  of  the  Court. 

Kruger,  personally,  had  originally  agreed  to  pay  these 
percentages.  The  contract,  signed  and  sealed  by  both 
Purdy  and  Kruger,  individually,  reads  as  follows: 
"Whereas,  William  B.  Purdy  has,  this  first  day  of  May, 
1913,  agreed  to  accept  the  sum  of  twenty-five  thousand 
dollars,  in  full  payment  for  the  metering  of  all  fire  lines 
on  the  properties  of  the  Philadelphia  Rapid  Transit 
Company  in  the  City  of  Philadelphia,  through  infor- 
mation obtained  by  Secretary  Frank  B.  Ellis,  on  April 
23, 1912,  for  which  I  then  agreed  to  pay  the  said  William 
B.  Purdy  fifteen  per  cent  on  all  savings  on  fire  lines  in 
addition  to  his  regular  ten  per  cent  on  all  other  surface 
lines,  for  the  vast  amount  of  money  that  he  saved  the 
Philadelphia  Rapid  Transit  Company  by  metering  all 
fire  lines,  as  well  as  yearly  saving.  That,  in  consider- 
ation of  the  faithful  and  efficient  service  rendered  by  you 
to  the  Philadelphia  Bapid  Transit  Company,  and  to  me 
in  the  matter  of  metering  of  fire  lines  for  the  company, 
there  is  due  to  you  the  sum  of  twenty-five  thousand  dol- 
lars. Now,  Know  All  Men  by  these  Presents,  that  I 
Charles  O.  Kruger,  president  of  the  Philadelphia  Bapid 
Transit  Company,  do  hereby  bind  myself,  my  heirs,  ex- 
ecutors and  assigns,  and  the  said  Philadelphia  Bapid 
Transit  Company,  to  protect  the  said  William  B.  Purdy, 
his  heirs  and  executors  or  assigns,  for  the  full  amount 
of  twenty-five  thousand  dollars.  It  is  further  agreed 
that  I  will  see  the  above  sum  is  paid  you  in  amounts  as 
may  be  required  by  you  from  time  to  time  for  your  per- 
sonal use.  Witnesseth,  Whereas  the  said  Charles  O. 
Kruger,  president  of  the  Philadelphia  Bapid  Transit 
Company,  agreed  to  pay  or  cause  to  be  paid  the  above 
amount,  I,  the  said  William  B.  Purdy,  agree  to  accept 
the  same  as  above  mentioned.  In  Witness  Whereof  the 
parties  to  this  agreement  have  hereunto  set  their  hands 
and  seals  on  the  day  and  year  first  above  written.,, 

Appellants  contend  (1)  that  the  contract  just  quoted 
"was  not  based  upon  a  valuable  consideration  entitling 
Purdy  to  participate  in  the  distribution  of  Mr.  Kruger's 


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56  KRUGER'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

insolvent  estate  with  creditors  whose  claims  were  based 
on  a  valuable  consideration";  and  (2)  that  it  "was  ob- 
tained by  fraud."  In  disposing  of  these  contentions,  the 
learned  president  judge  of  the  court  below,  after  dis- 
cussing the  testimony,  states :  "I  fail  to  find  satisfactory 
evidence  of  either  fraud  or  want  of  consideration." 

We  cannot  say  the  court  below  erred  in  its  con- 
clusion that  no  fraud  had  been  shown.  The  allegation 
in  this  regard  is  that  Purdy  had  deceived  Kruger  into 
executing  the  original  agreement,  not  that  the  con- 
tract here  involved  grew  out  of  a  fraud  against  the  city ; 
but,  even  had  the  latter  charge  been  made,  we  are  not 
prepared  to  hold  the  evidence  would  sustain  it;  so  the 
effect  thereof  need  not  be  discussed. 

As  to  the  alleged  lack  of  consideration,  appellants  con- 
tend the  settlement  with  the  transit  company  in  Febru- 
ary, 1913,  shows  Purdy  to  have  been  paid  in  full  for  all 
work  and  services  rendered  by  him  in  metering  that 
corporation's  fire  lines ;  and  they  argue  that,  under  these 
circumstances,  when  the  contract  in  suit  was  subse- 
quently signed,  there  was  no  personal  liability  on  the 
part  of  Kruger  to  Purdy,  first,  because  the  entire  origi- 
nal debt  had  been  discharged  by  the  latter's  receipt  to 
the  transit  company,  and,  second,  because  this  trans- 
action showed  that  Purdy  recognized  Kruger  as  repre- 
senting a  disclosed  principal,  who  thereby  ratified  its 
agent's  acts.  After  carefully  considering  these  conten- 
tions, and  all  they  involve,  we  are  not  convinced  the 
orphans'  court  erred  in  refusing  to  sustain  them. 

Before  the  testimony  contained  in  the  present  record 
was  considered,  the  court  below,  in  its  original  adjudi- 
cation (after  referring  to  the  payment  made  by  the 
transit  company  in  February,  1913),  said:  "The  com- 
pany therefore  ratified  the  action  of  its  president  in  con- 
tracting with  Purdy  for  metering  its  fire  lines" ;  but,  it 
will  be  noted,  this  finding  is  not  that  all  the  terms  of  the 
original  agreement  between  Kruger  and  Purdy,  particu- 
larly as  to  the  percentage  on  savings,  were  then  ratified; 


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KRUGER'S  ESTATE.  57 

1919.]  Opinion  of  the  Court 

and;  in  the  opinion  filed  after  the  testimony  was  before 
the  court,  there  is  no  mention  whatever  of  ratification. 
Be  this  as  it  may,  however,  the  written  agreement, 
signed  by  both  Kruget  and  Purdy,  demonstrates  that,  as 
between  them,  it  was  not  intended  Kruger  should  be  dis- 
charged from  his  personal  liability;  and  Judge  Solly's 
second  opinion  proceeds  upon  the  basis  that  the  testi- 
mony shows  Kruger,  from  the  first,  throughout  his  deal- 
ings with  Purdy,  assumed  a  personal  liability. 

The  court  below  says,  inter  alia,  "The  work  of  meter- 
ing the  fire  lines  was  done  for  the  company,  under  the 
order  of  its  president,  and  paid  for  by  the  company,  but 
the  agreement  as  to  the  percentage  on  the  savings  of 
water  charges  which  Purdy  was  to  receive  was  the  ex- 
press promise  of  Kruger."  This  finding  is  not  formally 
complained  of;  but,  if  it  were,  we  could  not  say  there 
was  error  therein. 

With  the  finding  just  quoted  accepted  as  a  fact,  there 
is  nothing  in  the  receipt  given  by  Purdy  to  the  transit 
company  which  operates  against  a  recovery  here;  the 
document  simply  states  the  money  then  accepted  by 
Purdy  to  be  in  full  payment  of  all  services  rendered  that 
corporation,  not  for  services  rendered  Kruger,  or  even  in 
full  for  all  services  rendered  in  connection  with  meter- 
ing the  fire  lines  of  the  transit  company.  In  other  words, 
the  recital  of  this  receipt  contains  no  declaration  which 
is  inconsistent  with  Purdy's  present  claim  against 
Kruger;  for,  by  the  written  contract  in  suit,  Kruger  ex- 
pressly agrees  to  pay  Purdy,  "In  consideration  of  the 
faithful  and  efficient  service  rendered  by"  him,  "to  me 
[Kruger],"  not  for  metering  the  lines  of  the  transit 
company,  but  "in  the  matter  of  metering"  those  lines. 

As  suggested  by  the  court  below,  it  may  well  be  that 
Kruger  thought  it  was  his  duty,  as  general  manager,  to 
have  originally  achieved  the  savings  and  annual  econo- 
mies subsequently  accomplished  by  Purdy,  in  connection 
with,  or  "in  the  matter  of,"  metering  the  transit  com- 
pany's fire  lines;  and  that  he  always  intended,  if,  for 


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58  KRUGER'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

any  reason,  that  corporation  might  be  unwilling  to  pay 
a  compensation  commensurate  with  what  he  considered 
the  value  of  Purdy's  services,  to  discharge  that  responsi- 
bility himself.  If  this  was  Kruger's  attitude  (and  the 
paper  in  suit  strongly  indicates  it  was)  then  his  assump- 
tion of  liability  would  be  quite  lawful;  and,  when  the 
unpaid  amount  due  Purdy  was  finally  settled  between 
them,  it,  like  any  other  lawful  debt,  might  be  put  into 
the  form  of  a  written  obligation.  Thus  viewed,  the  con- 
tract in  suit  is  supported  by  a  valuable  consideration; 
therefore,  we  cannot  say  the  court  below  erred  in  sus- 
taining its  validity. 

The  assignments  of  error  are  overruled  and  the  decree 
is  affirmed. 


Losch's  Estate. 


WSl — Testamentary  character  of  paper — Specific  performance. 

It  is  not  error  for  the  orphans'  court  to  construe  a  paper  as 
testamentary  in  character,  and  to  refuse  specifically  to  enforce  it, 

where  the  writing  states :  "I  will  give  my  home to"  a  woman 

named  "for  special  favors  and  honest  kind  work  and  good  service 

during  the  last  three  months  and  before,    she  shall  have  my 

home  which  I  promised  to  her for  staying  with  me.    to  the  end 

of  my  life.    I  order  my  executor to  sign  said  deed and 

after  my  death  to  hand  and  deliver  said  deed  to  her."  In  such 
a  case  what  is  to  be  done  to  make  the  writing  effective,  is  to  be 
done  by  the  executor. 

Argued  Feb.  3,  1919.  Appeal,  No.  30,  Jan.  T.,  1919, 
by  Angelina  Kern  Schaffer,  from  decree  of  O.  C.  Lehigh 
Co.,  Jan.  T.,  1914,  No.  38,  refusing  specific  performance 
in  Estate  of  Charles  Losch,  deceased.  Before  Brown, 
C.  J.,  Stewart,  Moschziskbr,  Walling  and  Simpson, 
JJ.    Affirmed. 

Petition  for  specific  performance. 

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LOSCH 'S  ESTATE.  59 

1919.]  Opinion  of  Court  below. 

Groman,  P.  J.,  filed  the  following  opinion : 

Charles  Losch  died  testate  on  or  about  the  17th  day 
of  November,  1913.  Five  days  before  his  death,  on 
November  12,  1913,  it  is  alleged  he  signed  the  following 
paper  writing: 

"I  will  give  my  home  Furnished  as  it  now  is  all  of 
619.  Linden  st.  to  my  present  housekeeper  who  is  now 
takeing  care  of  me  to  Angelina  Kern.  For  special 
favors  and  honest  kind  work  and  good  service  she  has 
done  for  me  during  the  last  three  month  and  before, 
she  shall  have  my  home  which  I  promised  to  her.  Also 
for  the  last  three  years  past  for  staying  with  me.  to  the 
end  of  my  life.  I  name  and  order  my  executor  James 
Kressler.  lawful  to  sign  said  Deed  over  to  in  her  name, 
and  after  my  death  to  hand  and  deliver  said  deed  to  her. 
Angelina  Kern.  Witness  my  hand  and  seal.  (Signed) 
Charles  Losch  (Seal)    In  the  presence  of  Angie  Kern." 

On  October  21,  1917,  Angelina  Kern,  now  Schaffer, 
filed  a  petition  in  the  Orphans'  Court  of  Lehigh  County, 
Pennsylvania,  praying  for  specific  performance  and  a 
decree,  founded  on  said  prayer,  claiming  it  to  be  a  con- 
tract- The  answer  denies  such  construction  of  it,  but 
contends  that  it  is  testamentary  in  its  character. 
Blackstone  defines  a  will  as  "The  legal  declaration  of  a 
man's  intention  which  he  wills  to  be  performed  after 
his  death";  Kent's  Commentaries  defines  it  as  a  writ- 
ing disposing  of  real  and  personal  property,  or  both,  to 
take  effect  after  the  death  of  the  maker,  and  such  writ- 
ing is  generally  denominated  as  "last  will  and  testa- 
ment." The  writing  is  not  restricted  to  any  particular 
form  under  statutory  provision,  or  any  particular 
language,  if  the  obvious  purpose  of  the  writing  is  to 
effect  a  disposition  of  the  maker's  property  after  death. 
The  essence  of  the  definitions  relative  to  a  will  is  that  it 
is  a  disposition  to  take  effect  after  death ;  whatever  the 
form  of  the  instrument,  if  it  vests  no  present  interest, 
but  only  directs  what  is  to  be  done  after  the  death  of  the 
maker,  it  is  testamentary:  Turner  v.  Scott,  51  Pa.  126; 


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60  LOSCH'S  ESTATE. 

Opinion  of  Court  below.  [264  Pa. 

Wilson  v.  Van  Leer,  103  Pa.  600;  Megary's  Est,  206 
Pa.  260. 

Turning  to  said  writing  and  eliminating  words  not 
directly  essential,  so  as  to  secure  a  proper  perspective, 
we  find  it  would  read  as  follows :  "I  will  give  my  home 

619  Linden   St.   to Angelina   Kern.     For 

special  favors  and  honest  kind  work  and  good  service 

during  the  last  three  month  and  before.     She 

shall  have  my  home  which  I  promised  to  her for 

staying  with  me.  to  the  end  of  my  life.    I order 

my  executor  James  Kressler to  sign  said  deed 

and  after  my  death  to  hand  and  deliver 

said  deed  to Angelina  Kern."    The  maker  of  the 

writing  was  then  quite  old,  and  the  writing  was  made 
within  a  few  days  of  his  death.  The  beneficiary  named 
in  it,  had  been  with  him  as  housekeeper  for  upwards  of 
three  years;  the  maker  evidently  intended  to  further 
provide  for  her  for  the  care  and  attention  she  had  given 
him  in  his  later  years ;  the  paper  indicates  that  such  was 
the  moving  cause;  the  language  used  is  as  follows: 
"for  special  favors  and  honest  kind  work  and  good 
service  she  has  done  for  me  during  the  last  three  month 
and  before.  She  shall  have  my  home  which  I  promised 
to  her.  Also  for  the  last  three  years  past  for  staying 
with  me.  to  the  end  of  my  lif  e."  That  the  writing  was  to 
take  effect  in  futuro  is  shown  by  the  following  expres- 
sions used:  "I  will  give,"  "She  shall  have,"  "I  name 
and  order  my  executor,  James  Kressler  lawful  to  sign 
said  deed  over  to  in  her  name,  and  after  my  death  to 
hand  and  deliver  said  deed  to  her,  Angelina  Kern."  She 
was  to  have  no  present  interest ;  what  was  to  be  done  to 
make  the  writing  effective,  was  to  be  done  by  the  executor, 
after  the  maker's  death.  It  was  testamentary  in  its 
character. 

Now  April  1, 1918,  prayer  for  specific  performance  re- 
fused. 

Petitioner,  Angelina  Kern  Kessler,  appealed. 


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LOSCH'S  ESTATE.  61 

1919.]        Assignment  of  Error — Opinion  of  the  Court. 
Error  assigned  was  decree  of  the  court. 

Claude  T.  Reno,  with  him  Charles  W.  Kaeppel  and 
James  L.  Schaadt,  for  appellant. 

Morris  Roots,  with  him  Calvin  E.  Arner,  for  appel- 
lees. 

Per  Curiam,  February  24, 1919 : 

The  paper  signed  by  the  decedent,  which  appellant  in- 
sists is  a  contract  to  be  specifically  enforced,  is  clearly 
testamentary:  Wilson  v.  Van  Leer,  103  Pa.  600;  Me- 
gary's  Est.,  206  Pa.  260.  It  vested  no  present  interest, 
but  only  appointed  what  was  to  be  done  after  the  death 
of  the  maker,  and  this  is  the  test  of  its  character :  Turner 
v.  Scott,  51  Pa.  126.  In  Shields  v.  Mifflin's  Executors,  3 
Teates  389,  relied  upon  in  support  of  appellant's  con- 
tention, the  paper  signed  by  Thomas  Mifflin  was  an 
executed  contract,  acknowledging  and  promising  to  pay 
a  liability  which  could  have  been  enforced  against  his 
estate  without  the  direction  that  his  executors  or  admin- 
istrators should  pay  it.  The  prayer  for  specific  perform- 
ance was  properly  dismissed  by  the  learned  court  below, 
and  its  decree  is  affirmed,  at  appellant's  costs. 


Keilly,  Appellant,  v.  Prudential  Insurance  Co.  of 

America. 

Insurance — Foreign  insurance  company — License  of  agent — Col- 
lection of  commissions  by  agent 

Where  a  contract  between  a  foreign  insurance  company  and  its 
agent  provided  for  commissions  to  the  agent,  on  insurance  written 
by  him,  such  agent  cannot  recover  commissions  on  insurance  writ- 
ten during  a  period  when  he  had  not  been  authorized  by  the  In- 
surance Commissioner  of  the  State  of  Pennsylvania  to  transact  busi- 
ness in  the  State  as  the  agent  of  the  defendant. 


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62     REILLY,  Appel.,  v.  PRUDENTIAL  INS.  CO.  OP  A. 

Statement  of  Facts — Assignment  of  Error.  [264  Pa. 
Argued  Feb.  3, 1919.  Appeal,  No.  231,  Jan.  T.,  1919, 
by  plaintiff,  from  judgment  of  C.  P.  Montgomery  Co., 
March  T.,  1917,  No.  99,  for  defendant  n.  o.  v.  in  case  of 
Edward  A.  Eeilly  to  the  use  of  John  Scott,  Jr.,  and 
Samuel  S.  Hartranft,  Administrator  d.  b.  n.  of  Linn 
Hartranf  t,  deceased,  v.  Prudential  Insurance  Company  of 
America.  Before  Brown,  C.  J.,  Stewart,  Mosohziskbr, 
Walling  and  Simpson,  JJ.    Affirmed. 

Assumpsit  for  commissions  by  an  insurance  agent 
against  a  foreign  insurance  company.    Before  Miller,  J. 

At  the  trial  it  appeared  that  on  May  17, 1900,  plaintiff 
obtained  an  application  to  defendant  company  from 
Charles  T.  Schoen  for  a  large  policy  of  insurance  on  the 
latter's  life.  Plaintiff  was  appointed  an  agent  of  the  com- 
pany on  June  1,  1900.  On  the  same  day  the  policy  was 
delivered  and  the  premium  paid.  On  June  14,  1900,  a 
State  license  was  procured  by  the  plaintiff  to  act  as  de- 
fendant's agent.  The  contract  was  terminated  by  mutual 
consent  on  July  21,  1901.  Suit  was  brought  to  recover 
commissions  on  the  Schoen  and  other  policies.  Verdict 
for  plaintiff  for  $7,309.73. 

The  court,  in  an  opinion  by  Miller,  J.,  entered  judg- 
ment for  defendant  n.  o.  v.  The  last  paragraph  of  the 
opinion  was  as  follows: 

We,  therefore,  in  conclusion  and  in  order  that  the  sin- 
gle reason  that  compels  our  action  may  be  briefly  set 
down  at  the  end  of  this  opinion,  repeat  that  the  plain- 
tiffs cannot  recover  and  the  defendant  is  entitled  to  judg- 
ment only  because  when  Mr.  Reilly  obtained  the  Schoen 
risk,  he  had  not  been  authorized  by  the  insurance  com- 
missioner to  transact  business  in  this  State  as  an  agent 
of  the  defendant  foreign  insurance  company. 

Plaintiff  appealed. 

Error  assigned  was  in  entering  judgment  for  defend- 
ant n.  o.  v. 


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REILLY,  Appel.,  v.  PRUDENTIAL  INS.  CO.  OP  A.  63 
1919.]  Arguments — Opinion  of  the  Court. 

Aaron  8.  Swartz,  Jr.,  with  him  John  M.  Dettra, 
Samuel  H.  High  and  Montgomery  Evans,  for  appellant. 

Frederick  J.  Shoyer,  with  him  Henry  Arronson,  for  ap- 
pellee. 

Per  Curiam,  February  24,  1919 : 
This  judgment  is  affirmed  for  the  single  reason  given 
by  the  learned  court  below  for  entering  it. 


Commonwealth  v.  Moon,  Appellant. 

Criminal  law — Murder — Evidence — Threats — Malice. 

On  the  trial  of  an  indictment  for  murder,  it  is  not  error  to  admit 
evidence  that  defendant  employed  as  a  miner  by  the  deceased,  and 
on  a  strike,  threatened  shortly  before  the,  killing  to  "fix  the  clock" 
of  the  deceased,  and  made  threats  against  the  deceased  and  other 
men  who  were  working  in  the  mine.  Such  evidence  is  proper  to 
show  malice,  hatred  and  ill  will  on  the  part  of  the  defendant 
towards  his  victim. 

Argued  Feb.  3,  1919.  Appeal,  No.  4,  Oct.  T.,  1919,  by 
defendant,  from  judgment  of  O.  &  T.  Somerset  Co., 
Sept.  T.,  1918,  No.  6,  on  verdict  of  guilty  of  murder  of 
the  first  degree  in  case  of  Commonwealth  v.  Bertie 
Franklin  Moon.  Before  Brown,  C.  J.,  Stewart, 
Moschziskbr,  Walling  and  Simpson,  J  J.    Affirmed. 

Indictment  for  murder.    Before  Buppbl,  P.  J. 

At  the  trial  the  evidence  of  the  Commonwealth  tended 
to  show  that  on  August  13,  1918,  the  prisoner  who  was 
employed  by  Ernest  W.  Saylor,  as  a  miner,  deliberately 
shot  his  employer  with  a  shot  gun.  The  prisoner  was  on 
a  strike  at  the  time. 

When  Grant  Lytle,  a  witness  for  the  Commonwealth, 
was  on  the  stand  the  following  offer  was  made : 


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64  COMMONWEALTH  v.  MOON,  Appellant 

Statement  of  Facts.  [264  Pa. 

The  Commonwealth  proposes  to  prove  by  the  witness 
on  the  stand  that  when  the  defendant  was  riding  with 
him  on  the  morning  of  the  day  of  the  shooting  in  the  di- 
rection of  his  boarding  house,  he  stated  to  the  witness, 
after  talking  of  the  trouble,  that  he  was  going  out  to  the 
mine  to  fix  Baylor's  clock;  said  threat  having  been  made 
about  eight  o'clock  in  the  morning  and  the  shooting  later 
occurred  about  9 :  30  o'clock  the  same  morning. 

Objected  to.    Objection  overruled  and  exception  ( 1) . 

When  Hazel  Tounkin,  witness  for  the  Common- 
wealth, was  on  the  stand,  the  following  offer  was  made: 

The  Commonwealth  proposes  to  prove  with  the  wit- 
ness on  the  stand  that  the  defendant  on  the  morning  of 
the  shooting  had  come  over  to  the  house  of  George  Hyatt, 
who  had  gone  to  work  in  the  mine  of  Ernest  W.  Saylor, 
after  the  defendant  and  the  other  men  had  refused  to 
work  any  longer ;  that  he  then  and  there  called  the  said 
George  Hyatt  scab  aid  other  names ;  this  to  be  followed 
by  proof  that  the  defendant  then  came  to  the  home  of 
the  witness  and  there  repeated  said  conversation,  call- 
ing the  men  scabs  and  made  threats  against  the  deceased 
and  other  men  who  were  in  the  mine  that  day ;  this  is 
offered  for  the  purpose  of  establishing  the  defendant's 
motive  for  committing  the  crime  and  also  for  showing  of 
malice,  hatred  and  ill  will  against  the  deceased. 

By  Mr.  King:  This  is  objected  to  because  the  offer 
does  not  propose  to  show  that  the  remarks  were  made  to 
or  in  the  hearing  of  the  deceased,  or  in  any  way  related 
to  him,  but  were  in  regard  to  other  parties ;  and  as  to 
the  threats,  the  offer  does  not  propose  to  show  what  the 
threats  are,  and  without  stating  what  the  threats  are 
specifically,  they  could  not  be  evidence  to  be  used  against 
him  and  the  evidence  is  therefore  immaterial  and  inad- 
missible. 

Objection  overruled;  exception  (2). 

Verdict  of  guilty  of  murder  of  the  first  degree  on  which 
judgment  of  sentence  was  passed.    Defendant  appealed. 


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COMMONWEALTH  v.  MOON,  Appellant.  65 

1919.]       Assignment  of  Errors — Opinion  of  the  Court. 

Errors  assigned  were  (1,  2)  rulings  on  evidence  as 
above  and  (3-8)  various  portions  of  charge  and  answers 
to  points,  quoting  them. 

Alexander  King,  for  appellant. 

Virgil  R.  Saylor,  District  Attorney,  Charles  F.  Uhl 
and  Norman  T.  Boose,  for  appellee,  filed  a  printed  brief 
but  made  no  oral  argument. 

Per  Curiam,  February  24,  1919 : 

The  first  and  second  assignments  complain  of  the  ad- 
mission of  testimony.  It  was  offered  and  properly  re- 
ceived to  show  malice,  hatred  and  ill  will  on  the  part  of 
the  prisoner  toward  the  victim  of  his  wrath.  The  re- 
maining assignments,  complaining  of  portions  of  the 
charge  and  answers  to  points,  are  utterly  without  merit, 
and  it  remains  only  to  say  that  the  judgment  is  affirmed, 
with  direction  that  the  record  be  remitted  for  the  pur- 
pose of  execution. 


Oyler  v.  Clements,  Appellant 

WUl — Devise — Estate  in  fee — Marketable  title. 

Where  a  testator  gives  to  his  daughter,  her  heirs  and  assigns, 
one-fourth  of  all  his  estate,  and  later  in  his  will  says  "I  request  the 

executors to  grant  and  convey  by  deed  my  home  and  house 

and  thirty  acres  where  I  now  live  to  my  daughter for  $1500 

payable  out  of  her  interest  and  bequest  given  to  her  in  this  will/' 
and  the  daughter  elects  to  take  the  homestead,  a  deed  to  her  by 
the  executors  gives  to  her  a  good  marketable  title  in  fee,  not  af- 
fected by  a  later  clause  in  the  will,  which  directs  that  "when  my 
daughter  and  her  husband  die  all  the  bequests  I  leave  to  my  daugh- 
ter that  is  in  their  possession  shall  fall  back  to  the  original"  and 
be  divided  between  two  persons  specified. 

Argued  Feb.  4, 1919.    Appeal,  No.  6,  Oct.  T.,  1919,  by 
defendant,  from  order  of  C.  P.  Westmoreland  Co.,  May 
T.,  1918,  No.  257,  making  absolute  rule  for  judgment  for 
Vol.  cclxiv— 5 

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66  OYLEB  v.  CLEMENTS,  Appellant. 

Statement  of  Facts.  [264  Pa. 

want  of  a  sufficient  affidavit  of  defense  in  case  of  Mar- 
garet O.  Oyler  v.  Thomas  C.  Clements.  Before  Bbown, 
C.  J.,  Stewart,  Moschziskbb,  Walling  and  Simpson, 
JJ.   Affirmed. 

Assumpsit  to  determine  marketable  title  to  real  estate. 
Before  Copbland,  P.  J.,  specially  presiding. 

From  the  record  it  appeared  that  Wm.  M.  Williams 
by  his  will  directed  as  follows : 

"First; — I  direct  that  all  my  just  debts  and  funeral 
expenses  be  fully  paid  and  satisfied  as  soon  as  conven- 
iently may  be  after  my  decease. 

"Second; — I  give  and  bequeath  to  my  son  Willie  Milo 
M.  D.  his  heirs  and  assigns  the  one  fourth  (%)  equal 
share  of  all  my  estate  personal  property  moneys  notes 
and  book  accounts  and  real  estate  and  effects. 

"Third ; — I  give  and  bequeath  to  my  daughter  Rebecca 
Jane  Hunter  her  heirs  and  assigns  the  one  fourth  (%) 
equal  share  of  all  my  estate  personal  property  money, 
notes,  accounts,  and  real  estate  and  effects  plus  Five 
Hundred  Dollars  (500)  to  cove —  a  note  I  gave  her  (B. 
J.  Hunter)  dated  April  1st,  1905  which  note  shall  draw 
no  interest  until  after  the  date  of  this  my  will.  I  also 
appoint  my  son  Willie  Milo  and  J.  K.  Johnston  Trustee 
to  take  charge  of  all  the  bequests  I  make  to  my  daughter 
B.  J.  Hunter  and  see  that  she  and  her  children  gets  all 
necessary  benefits  of  the  same. 

"Fourth ; — I  give  and  bequeath  to  my  daughter  Mar- 
garet Orah  Oyler  her  heirs  and  assigns  the  one  fourth 
(%)  equal  share  of  all  my  estate  personal  property 
moneys  notes  accounts  and  real  estate  and  effects  mines 
less  four  hundred  Dollars  ($400) 

"Fifth; — I  give  and  bequeath  to  my  daughter  Eliza- 
beth Johnston  her  heirs  and  assigns  the  one  fourth  (%) 
equal  shares  of  all  my  estate  personal  property  money 
notes  accounts  and  real  estate  and  effects  minus  two 
hundred  and  ninety  dollars  ($290.00)  to  balance  equal 
shares  with  mv  son  Willie  Milo. 


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OYLEB  v.  CLEMENTS,  Appellant.  67 

1919.]  Statement  of  Facts — Arguments. 

"Sixth; — I  give  and  bequeath  to  my  grand  son  Wm 
Clarence  Hunter  Five  Hundred  f  500  Dollars  to  be  paid 
to  him  in  cash. 

"Seventh; — Minerals  coals  underlying  lands  may  be 
sold  separate  from  the  lands  and  all  claims  due  my  estate 
shall  be  collected  and  distributed  as  aforesaid  all  un- 
settled claims  against  the  heirs  shall  be  paid  or  settled 
in  their  respective  shairs  independent  of  limitation. 

"Also  I  request  the  executors  of  this  my  will  to  grant 
and  convey  by  deed  my  home  and  house  and  thirty  acres 
of  land  where  I  now  live  to  my  daughter  Margaret  O. 
Oyler  reserving  all  the  mineral  coal  underlying  the  same 
that  I  have  optioned  for  sale  at  present  for  Fifteen  hun- 
dred dollars  payable  out  of  her  interest  and  bequest  giv- 
ing to  her  in  this  my  will. 

"Eighth ; — I  hereby  order  that  when  my  daughter  Mar- 
garet Oral  and  her  husband  C.  Z.  Oyler  dies  all  the  be- 
quests I  leave  to  my  daughter  that  is  in  their  possessions 
shall  fall  back  to  the  original  and  be  equally  divided  be- 
tween my  son  Will  Milo  and  my  daughter  Eebecca  Jane 
and  Elizabeth  and  their  heirs." 

Mrs.  Oyler  elected  to  take  the  homestead  at  the  valu- 
ation stated  in  the  will,  and  deed  for  it  was  made  to  her 
by  the  executor.  She  subsequently  signed  articles  to  sell 
the  land  to  Thomas  C.  Clements,  the  defendant.  The  lat- 
ter, alleging  insufficiency  of  title,  refused  to  perform  his 
contract,  hence  this  suit. 

The  court  made  absolute  rule  for  judgment  for  want  of 
a  sufficient  affidavit  of  defense.    Defendant  appealed. 

Error  assigned  was  the  order  of  the  court. 

Paul  H.  Gaither,  with  him  Charles  E.  Whitten,  for  ap- 
pellant. 

C.  L.  Rugus,  for  appellee. 

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68  OTLBB  v.  CLEMENTS,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

Per  Curiam,  February  24,  1919 : 

The  learned  court  below  correctly  held  that  the  deed 
from  the  executor  of  the  will  of  appellee's  father,  exe- 
cuted and  delivered  to  her  in  pursuance  of  its  seventh 
clause,  passed  an  absolute  estate  to  her  in  the  property 
she  has  contracted  to  sell  to  the  appellant.  Nothing  is 
to  be  found  in  the  six  preceding  clauses  indicating  a  con- 
trary intention  by  the  testator,  and,  in  the  eighth  and 
last,  he  places  no  restraint  upon  her  power  to  dispose  of 
what  he  gave  her,  in  the  preceding  clause. 

Judgment  affirmed. 


Walker  v.  Walker  et  al.,  Appellants. 

Practice,  C.  P. — New  trial — Discretion — Avoidance  of  injustice 
— Review — Supreme  Court. 

The  appellate  court  will  not  review  the  discretion  of  the  trial 
court  in  granting  a  new  trial,  where  it  appears  that  the  court 
granted  the  new  trial  because  it  was  of  the  opinion,  from  the  ad- 
mitted facts  before  it,  that  an  injustice  had  plainly  been  done  the 
plaintiff;  although  it  was  also  of  the  opinion  that  on  the  case  pre- 
sented, its  action  in  directing  a  verdict  for  the  defendant  was 
clearly  right,  and  that  no  valid  legal  reasons  were  produced  for 
granting  a  new  trial. 

Argued  Jan.  20, 1919.  Appeal,  No.  214,  Jan.  T.,  1919, 
by  defendants,  from  order  of  O.  P.  Erie  Co.,  Sept.  T., 
1916,  No.  147,  granting  new  trial  after  verdict  for  defend- 
ant in  case  of  May  L.  Walker  v.  T.  W.  Walker  and  Walk- 
er Grape  Products  Company.  Before  Stewart,  Fbazer, 
Walling,  Simpson  and  Kephart,  JJ.   Affirmed. 

Trespass  for  alleged  wrongful  removal  of  machinery 
and  for  mesne  profits  for  use  of  premises.  Before  Ros- 
siter,  P.  J. 

At  the  trial  the  court  gave  binding  instructions  for  de- 
fendant, but  subsequently  granted  a  new  trial.  Defend- 
ants appealed. 


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WALKER  v.  WALKER  et  al.,  Appellants.  69 

1919.]  Assignment  of  Error — Opinion  of  the  Court. 

Error  assigned  was  in  granting  a  new  trial. 

John  B.  Brooks,  with  him  Charles  H.  English,  for  ap- 
pellant.— A  party  has  the  right  to  have  his  case  heard 
and  determined  only  once  on  the  facts  and  the  law  ap- 
plicable thereto :  First  National  Bank  of  Birmingham  v. 
Fidelity  Title  &  Trust  Co.,  251  Pa.  536 ;  Danboro  &  P.  T. 
Ed.  Co.  v.  Bucks  Co.,  258  Pa.  391. 

J.  M.  Sherwin,  with  him  W.  S.  Carroll,  for  appellee. — 
The  unbending  rule  of  law  in  Pennsylvania  for  half  a 
century  has  been  to  discourage  appeals  on  motions  for 
new  trials:  Walker  v.  Walker,  254  Pa.  220;  Hunter  v. 
Bremer,  256  Pa.  257;  Com.  v.  Ezell,  212  Pa.  296. 

Especially  should  this  rule  be  discouraged  when  the 
action  of  the  court  below  does  not  force  the  parties  out 
of  court  but  simply  grants  a  new  trial  and  an  oppor- 
tunity for  the  parties  to  have  their  cases  passed  upon  by 
a  jury. 

The  courts  of  Pennsylvania  have  always  adhered  to 
the  doctrine  that  a  new  trial  should  be  granted  by  the 
court  when  it  was  of  opinion  that  injustice  would  be 
done  if  a  new  trial  was  not  granted :  McFadden  v.  Mc- 
Fadden,  32  Pa.  Superior  Ct.  534;  Com.  v.  Delero,  218 
Pa.  487. 

Opinion  by  Mr.  Justice  Frazer,  March  3, 1919 : 
The  court  below  gave  binding  instructions  for  defend- 
ants and  subsequently,  on  plaintiff's  motion,  granted  a 
new  trial.  From  the  latter  action  defendants  have  ap- 
pealed. In  such  cases,  while  this  court  has  power  to  en- 
tertain the  appeal,  the  action  of  the  lower  court  will  be 
reversed  only  in  clear  cases  of  abuse  of  discretion.  We 
have  said  the  court  can  abuse  its  discretionary  power  as 
to  the  law,  as  well  as  to  the  facts  in  passing  on  an  appli- 
cation for  a  new  trial,  and  that  the  ordering  of  a  retrial, 
for  the  mere  purpose  of  correcting  a  matter  needing  no 
correction,  but  being  in  entire  accord  with  the  law,  would 


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70  WALKER  v.  WALKER  et  al.,  Appellants. 

Opinion  of  the  Court.  [264  Pa. 

be  such  abuse  of  discretion  warranting  setting  aside  the 
order :  First  National  Bank  of  Birmingham  v.  Fidelity 
Title  &  Trust  Company,  251  Pa.  536;  Danboro,  etc., 
Turnpike  Eoad  v.  Bucks  County,  258  Pa.  391,  395. 

Here  plaintiff  sued  in  trespass  to  recover  mesne  profits 
for  the  use  of  premises  held  by  defendants,  together  with 
damages  for  the  value  of  machinery  removed  from  the 
property  by  them  between  the  date  of  the  verdict  in  a 
previous  action  of  ejectment  (Walker  v.  Walker, 
254  Pa.  220,  where  it  was  determined  the  title 
to  the  property  was  in  plaintiff)  and  the  day  on 
which  defendants  finally  surrendered  possession  of  the 
premises.  The  trial  resulted  in  binding  instructions  for 
defendants  for  the  reason,  as  stated  by  the  trial  judge, 
there  was  no  evidence  to  connect  one  of  the  joint  defend- 
ants with  the  transaction,  and  in  a  joint  action  there 
could  be  no  verdict  against  one.  On  motion  of  plaintiff 
a  new  trial  was  granted  without  reason  given  at  the  time ; 
subsequently,  however,  on  a  motion  of  defendants  to 
strike  off  the  order  making  the  rule  absolute,  the  court 
filed  an  opinion  in  which  it  stated,  inter  alia :  "We  be- 
lieve that  we  were  absolutely  right  in  giving  binding  in- 
structions to  the  jury  to  find  for  defendants.  We  believe 
there  was  no  legal  reason  why  a  new  trial  should  have 
been  granted.  We  believe  that  it  was  legal  and  proper 
for  the  court  to  give  binding  instructions  for  the  defend- 
ants. We  also  believe  that  the  affidavits  as  to  after-dis- 
covered evidence  which  accompanied  the  motion  for  a 
new  trial  were  unworthy  of  belief.  We  did  not  believe 
them  and  we  do  not  believe  now  that  it  was  after-dis- 
covered evidence  at  all But  he  [defendant]  was 

acting  for  his  wife,  who  was  plaintiff,  who,  however, 
knew  little  about  the  preparation  of  the  case,  and  this 
court  had  previously  found,  and  the  Supreme  Court  had 
affirmed  that  finding,  that  the  property  sued  for  belonged 
to  her.  An  injustice,  therefore,  has  been  done  her.  So 
we  are  confronted  with  this  anomalous  condition,  viz : 
that  on  the  one  side  every  proceeding  thus  far  has  been 


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WALKER  v.  WALKER  et  al,  Appellants.  71 

1919.]  Opinion  of  the  Court. 

properly  and  legally  taken,  and  on  the  other  side 
we  are  convinced  that  T.  W.  Walker  took  this  property, 
sold  it,  and  appropriated  the  proceeds  to  his  own  use. 
In  other  words,  injustice  has  prevailed  in  a  court  of 
justice,  and  while  it  is  human  nature  to  say  'it  served 
them  right/  it  is  not  the  province  of  a  court,  as  we 

conceive  it,  to  sanction  a  wrong We  were  and  are 

therefore  of  opinion  that  this  court  could  not,  without 
injustice  to  plaintiff,  have  refused  her  a  new  trial." 

While  it  appears  the  court  below  was  of  opinion,  on  the 
case  presented,  its  action  |n  directing  a  verdict  for  de- 
fendant was  clearly  right,  and  no  valid  legal  reasons 
were  produced  to  warrant  the  granting  of  a  new  trial, 
yet  the  court  was  also  of  opinion,  from  the  admitted 
facts  before  it,  that  an  injustice  had  plainly  been  done 
plaintiff.  The  case  is,  therefore,  not  one  in  which  the 
action  of  the  court  below  was  based  on  legal  reasons,  but 
on  equitable  grounds  and  because  the  court  believed  an 
injustice  had  been  done  plaintiff.  In  such  case  the  policy 
of  this  court  has  been  not  to  interfere  with  the  discre- 
tion of  the  court  below  except  in  extreme  cases.  The 
court  below  was  apparently  of  opinion  that  since  the 
title  to  the  property  had  been  adjudged  to  be  in  plaintiff, 
she  was  justly  entitled  to  reimbursement  for  its  loss,  if 
any,  and  should  not  be  deprived  of  the  sum  due  her  be- 
cause of  technical  objection. 

The  judgment  is  affirmed. 


Johnston's  Estate. 


Witt — Annuity — Charge  on  land— Proceedings  to  charge — Da- 
ficiency  of  annuity — Lease — Waiver  —  Estoppel — Act  of  June  7, 
1917,  P.  L.  U7. 

1.  In  the  absence  of  an  express  restriction,  or  its  equivalent, 
the  corpus  of  an  estate  given,  subject  to  an  annuity,  may  be  taken 
for  its  payment  when  the  income  proves  insufficient.    This  rule 


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72  JOHNSTON'S  ESTATE. 

Syllabus— Decree.  [264  Pa. 

is  not  affected  by  testator's  belief  that  the  income  would  be  ample 
to  pay  the  annuity. 

2.  Where  testator  gives  to  his  wife  an  annuity  for  life  and  di- 
rects that  "the  same  shall  be  a  lien  upon  any  real  estate  of  which 
I  may  die  seized,"  and  after  giving  the  remainder  of  the  income 
of  his  estate  to  certain  persons  for  life,  further  directs  that  the 
corpus  of  his  estate  shall  be  divided  among  his  grandchildren 
"subject  to  all  the  limitations,  previous  gifts,  and  bequests  hereto- 
fore set  forth,"  the  widow,  on  a  deficiency  of  income  from  the 
annuity,  is  entitled  to  proceed  under  the  Act  of  February  24,  1834, 
P.  L.  84  (incorporated  under  Section  25  of  the  Fiduciaries  Act  of 
June  7,  1917,  P.  L.  447)  to  have  her  annuity  charged  upon  the 
land. 

3.  In  such  a  case  the  fact  that  the  widow  had  joined  with  the 
other  parties  in  interest  in  a  lease  of  the  principal  portion  of  the 
real  estate  for  a  term  of  years  at  a  large  rental,  will  not  consti- 
tute a  waiver  of  her  right  to  have  her  annuity  charged  on  such 
land,  although  it  might  estop  her  from  contesting  the  lease. 

Argued  Jan.  24,  1919.  Appeal,  No.  159,  Oct.  T.,  1918, 
by  Stewart  Johnston,  from  decree  of  O.  C.  Allegheny 
Co.,  Jan.  T.,  1917,  No.  243,  charging  annuity  on  land  In 
re  Estate  of  Wm.  G.  Johnston.  Before  Brown,  O.  J., 
Stewart,  Moschziskbr,  Walling  and  Simpson,  J  J.  Af- 
firmed. 

Petition  to  pay  annuity.   Before  Miller,  J. 

The  court  entered  the  following  decree: 

And  now,  to  wit,  August  3, 1918,  this  matter  came  on 
to  be  heard  upon  exceptions  to  the  opinion  and  decree  of 
the  trial  judge,  and  after  consideration  thereof  and  argu- 
ment by  counsel,  said  exceptions  are  dismissed,  and  it  is 
now  ordered  and  decreed  as  follows: 

That  there  is  due  at  this  time  from  Stewart  Johnston, 
Trustee,  under  the  will  of  William  G.  Johnston,  de- 
ceased, to  Julia  G.  E.  Johnston,  the  petitioner  on  account 
of  the  annuity  of  $6,000  given  her  by  article  II  of  the 
will  of  said  William  G.  Johnston,  deceased,  the  following 
sums: [aggregating  $6,500  with  interest]. 

That  said  sums  with  interest  aforesaid  are  a  charge  on 
the  real  estate  of  the  decedent  in  the  hands  of  said 


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JOHNSTON'S  ESTATE.  73 

1919.]  Decree — Opinion  of  the  Court. 

trustee;  said  real  estate  being  situate  at  the  corner  of 
Penn  avenue  and  Ninth  street,  in  the  City  of  Pittsburgh, 
Allegheny  County,  Pennsylvania,  and  designated  as  Nos. 
900,  902,  904,  906  Penn  avenue. 

It  is  further  ordered  and  decreed  that  Stewart  John- 
ston, trustee  aforesaid,  pay  the  amounts  above  set  forth 
within  thirty  (30)  days  from  the  date  of  this  decree  and 
that  in  default  of  such  payment  such  proceedings  for  the 
collection  thereof  may  be  instituted  as  is  provided  by 
law. 

Stewart  Johnson,  the  trustee,  appealed. 

Error  assigned  was  the  decree  of  the  court. 

W.  W.  Stoner,  with  him  M .  W.  Stoner,  for  appellant. — 
If  the  testator  evidently  did  not  contemplate  a  deficiency 
of  income,  an  intention  to  provide  for  such  contingency 
will  not  be  read  into  the  will :  Sheppard  v.  Sheppard,  32 
Beavens  197 ;  Sell's  Est.,  4  W.  N.  C.  14. 

If  there  is  anything  to  show  that  the  corpus  is  looked 
upon  as  entire  after  the  annuitant's  death,  it  is  not  liable 
to  make  good  arrears :  Einbecker  v.  Einbecker,  162  HI. 
267;  Homer  v.  Landis,  95  Md.  328. 

Robert  A.  Applegate,  with  him  Rose  d  Eichenauer,  for 
appellee. — The  income  from  the  estate  not  being  suf- 
ficient to  pay  in  full  the  annuity  charged,  the  arrearages 
can  be  collected  or  secured  from  the  corpus :  Dickerman 
v.  Eddinger,  168  Pa.  240;  Cooper's  Est.,  147  Pa.  322; 
Pierrepont  v.  Edwards,  25  N.  Y.  128. 

Opinion  by  Mb.  Justice  Walling,  March  3, 1919: 
This  appeal  is  from  the  decree  of  the  orphans'  court 

ordering  the  payment  of  a  testamentary  annuity  and 

declaring  it  a  charge  upon  real  estate. 
In  1913,  the  testator,  William  G.  Johnston,  died  at  his 

home  in  Watertown,  New  York,  survived  by  a  widow, 

Julia  G.  E.  Johnston,  the  petitioner,  to  whom  he  was 

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74  JOHNSTON'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

married  in  1899,  and  by  five  children,  the  issue  of  a 
former  marriage,  and  by  four  grandchildren.  His  real 
estate  consisted  of  a  valuable  property  at  Penn  avenue 
and  Ninth  street,  Pittsburgh,  and  his  home  in  Water- 
town.  By  an  ante-nuptial  agreement  he  provided  for  his 
wife  a  life  annuity  of  $6,000  secured  on  the  Penn  avenue 
property ;  and  by  his  last  will  she  is  given  the  life  use  of 
the  home  in  Watertown  and  $600  a  year  for  its  up-keep. 
The  will  also  provides :  "I  do  hereby,  furthermore,  give 
and  bequeath  to  her  [the  wife]  the  sum  of  Six  Thousand 
Dollars  ($6,000.00)  being  in  addition  to  the  Six  Hundred 
dollars  referred  to  in  the  first  paragraph  of  article  2, 

annually,  during  her  life and  the  same  shall  be  a 

lien  upon  any  real  estate  of  which  I  may  die  seized  and 
be  accepted  by  her  in  lieu  of  any  dower  or  any  other  pur- 
pose whatsoever" ;  and,  after  giving  certain  money  lega- 
cies to  employees,  further  provides :  "I  give  and  bequeath 
the  total  income  arising  from  any  real  and  personal 
estate  excepting  so  much  as  is  disposed  of  in  the  preced- 
ing article,  as  follows,  viz :  to  each  of  my  children  and 
grandchildren  below  named,  for  and  during  his  or  her 
natural  life,  the  one-ninth  of  said  income,  viz :  [naming 

them] Subject  to  all  the  limitations,  provisions, 

gifts  and  bequeaths  heretofore  set  forth  in  the  preceding 
articles  of  this  instrument,  I  hereby  give,  devise  and  be- 
queath all  my  real  and  personal  property  wheresoever 
situated  to  my  following  grandchildren,  their  heirs  and 

assigns  forever,  to  wit:    [naming  them] I  direct 

that  on  the  death  of  each  one  of  my  children,  one-fifth 
of  my  estate  shall  be  immediately  conveyed  to  my  grand- 
children herein  mentioned,  share  and  share  alike 

It  is  my  intention  in  the  foregoing  at  the  death  of  my 
last  surviving  child  that  my  estate  shall  have  all  been 
conveyed  to  my  grandchildren." 

The  will  appoints  executors  and  trustees  (one  of  whom 
is  Stewart  Johnston,  the  appellant),  who  are  given  the 
full  and  exclusive  management  of  the  estate  with  the 
right  to  sell  real  and  personal  property,  but  says,  "No 


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JOHNSTON'S  ESTATE.  75 

1919.]  Opinion  of  the  Court. 

sale,  however,  shall  be  made  of  my  property  in  the  City 
of  Watertown,  aforesaid,  or  of  that  on  the  corner  of  Penn 
Avenue  and  Ninth  Street  in  the  City  of  Pittsburgh  afore- 
said, until  after  the  decease  of  my  wife,  Julia  G.  E. 
Johnston." 

The  personal  property,  after  deducting  specific  lega- 
cies and  all  expenses  and  liabilities  including  a  claim  of 
141,212.41  allowed  his  first  wife's  estate,  is  $63,050.16. 
The  Penn  avenue  property  became  vacant  in  1915,  and, 
owing  to  its  dilapidated  condition,  remained  tenantless 
until  the  fall  of  1916  when  it  was  rented  to  Spear  & 
Company  for  a  term  of  years  at  a  large  rental,  which- at 
first  goes  to  reimburse  the  tenants  for  extensive  and 
permanent  improvements.  Until  1916  the  trustee  paid 
the  widow  the  testamentary  annuities  in  full  from  the 
income,  which  since  that  time  has  proven  insufficient,  re- 
sulting in  default  followed  by  this  proceeding  whereby 
the  widow  seeks  to  recover  the  unpaid  balance  of  such 
annuities  from  the  corpus  of  the  estate.  The  trustee 
brought  this  appeal  from  the  decree  of  the  orphans'  court 
granting  her  the  relief  prayed  for. 

As  the  annuities  are  expressly  charged  upon  the  real 
estate,  the  question  of  an  implied  charge  is  not  involved, 
nor  is  the  question  of  the  annuity  in  the  ante-nuptial 
agreement.  The  proceeding  taken  in  this  case  is  within 
the  Act  of  February  24, 1834,  P.  L.  84  (incorporated  in 
Section  25  of  Fiduciaries  Act  of  June  7, 1917,  P.  L.  447), 
which  provides,  "When  a  legacy  is  or  shall  be  hereafter 
charged  upon,  or  payable  out  of  real  estate,  it  shall  be 
lawful  for  the  legatee  to  apply,  by  bill  or  petition,  to  the 
orphans'  court  having  jurisdiction  of  the  accounts  of 
the  executor  of  the  will  by  which  such  legacy  was  be- 
queathed; whereupon  such  court may  proceed,  ac- 
cording to  equity,  to  make  such  decree  or  order  touching 
the  payment  of  the  legacy,  out  of  such  real  estate,  as  may 
be  requisite  and  just."  The  widow  was  the  principal  object 
of  testator's  bounty  and  while  he  doubtless  thought  the 
income  from  the  estate  would  prove  ample  to  pay  her  an- 


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76  JOHNSTON'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

nuities  he  makes  no  such  limitation.  The  fact  that  the 
gift  over  to  the  grandchildren  is  expressly  made  subject 
to  all  prior  provisions,  gifts  and  bequests,  which  include 
the  widow's  annuities,  tends  to  negative  any  intent  on 
part  of  testator  to  limit  her  to  the  income ;  as  does  the  fact 
that  the  annuities  are  expressly  charged  upon  all  the 
real  estate.  It  would  be  vain  to  make  such  charge  and 
then  dqny  the  legatee  the  remedy  to  make  it  available. 
Should  the  buildings  on  the  very  valuable  Penn  avenue 
property  be  destroyed,  the  petitioner  might  be  deprived 
of  her  annuities,  notwithstanding  the  immense  value  of 
the  vacant  land,  unless  she  could  compel  its  sale.  The 
annuities  are  not  limited  to  the  income  nor  to  any  par- 
ticular fund  and  the  intent  of  the  testator  undoubtedly 
was  that  they  should  be  paid,  and  the  final  gift  of  all  of 
his  estate  to  the  grandchildren,  is  as  it  expressly  states, 
subject  to  all  prior  bequests.  The  will  as  a  whole  does 
not  justify  the  finding  of  an  intent  that  the  corpus  of  the 
estate  must  remain  intact  for  the  grandchildren  with- 
out regard  to  the  annuities ;  that  would  be  a  postpone- 
ment of  the  primary  object  to  the  secondary.  In  the  ab- 
sence of  an  express  restriction,  or  its  equivalent,  the  cor- 
pus of  an  estate  given  subject  to  an  annuity  may  be  taken 
for  its  payment  when  the  income  proves  insufficient  for 
that  purpose:  see  3  Corpus  Juris,  p.  212;  Smith  v. 
Fellows,  131  Mass.  20.  This  rule  is  not  affected  by  tes- 
tator's belief  that  the  income  would  be  ample  to  pay  the 
annuity :  Pierrepont  v.  Edwards,  25  N.  Y.  128. 

The  trustee  executed  the  lease  to  Spear  &  Company, 
and  at  their  request  secured  the  written  approval  of  the 
beneficiaries,  including  petitioner;  that  would  prevent 
them  from  contesting  the  lease  and  require  that  a  sale  of 
the  property  be  subject  thereto,  as  probably  would  have 
been  the  case  in  any  event.  Beyond  that  Mrs.  Johnston 
waived  no  rights  by  such  approval.  This  is  especially 
true  as  it  was  given  under  the  written  assurance  of  the 
trustee  that,  "Mrs.  Johnston  waives  absolutely  nothing 
by  signing,  except  her  future  right  to  kick  on  terms  and 


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JOHNSTON'S  ESTATE.  77 

1919.]  Opinion  of  the  Court 

conditions  of  lease,  which  in  no  way  refers  to  her  other 
rights."  The  question  of  estoppel  does  not  seem  to  re- 
quire extended  discussion. 

The  suggestion  of  appellee  that  the  temporary  defi- 
ciency be  paid  from  the  principal  of  the  personal  estate 
is  worthy  of  consideration,  doubtless  it  might  by  consent 
of  the  parties  in  interest;  whether  it  could  without  such 
consent  was  not  raised  by  any  assignment  of  error  nor 
discussed  by  appellant  and  we  do  not  pass  upon  it.  In 
our  opinion  the  decree  of  the  orphans'  court,  declaring 
the  annuities  a  charge  upon  the  Penn  avenue  property 
and  authorizing  proceedings  for  their  collection  in  case 
of  default,  was  properly  made. 

The  assignments  of  error  are  overruled  and  the  decree 
is  affirmed  at  the  costs  of  the  estate. 

Lawson's  Estate. 

Wills — Charitable  bequests — Unincorporated  society — Belief  of 
members  and  needy  persons  of  British  descent  in  City  of  Philadel 
phia— Validity— Act  of  April  £6,  1855,  P.  L.  828,  Section  11— 
Death  within  thirty  days. 

1.  A  bequest  to  an  unincorporated  society  haying  for  objects 
the  relief  from  distress  of  its  own  members  and  all  other  needy 
persons  of  British  nativity  and  descent  in  the  City  of  Philadelphia, 
and  to  promote  social  intercourse  among  its  members,  is  a  bequest 
for  a  charitable  use  and  therefore  void  under  the  Act  of  April  26, 
1855,  P.  L.  328,  where  the  will  was  executed  within  thirty  days  be- 
fore testator's  death. 

2.  The  fact  that  a  benevolent  society,  after  the  death  of  the 
testator,  made  certain  changes  in  its  by-laws  enlarging  the  social 
features  at  the  expense  of  its  charitable  purposes,  cannot  be  taken 
into  consideration  in  determining  whether  the  testator  made  a 
bequest  to  a  charitable  use,  since  the  society  could  not  change  its 
organic  law  or  prime  purpose  so  as  to  divert  charitable  funds  to 
other  uses. 

Argued  Feb.  4, 1919.  Appeal,  No.  255,  Jan.  T.,  1919, 
by  The  Albion  Society  of  Philadelphia,  from  decree  of 


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78  LAWSON'S  ESTATE. 

Statement  of  Facts — Arguments.  [264  Pa. 

C.  P.  Montgomery  Co.,  Sept.  T.,  1916,  No.  87,  dismissing 
exceptions  to  auditor's  report  in  the  Estate  of  Henry 
Lawson,  Deceased.  Before  Brown,  C.  J.,  Stewart, 
Moschziskeb,  Walling  and  Simpson,  JJ.    Affirmed. 

Exceptions  to  auditor's  report  making  distribution  of 
balance  of  estate  in  hands  of  trustee.    Before  Solly,  J. 

Before  the  auditor,  The  Albion  Society  of  Philadelphia, 
an  unincorporated  society,  claimed  under  the  will  one- 
half  of  the  testator's  residuary  estate.  The  auditor  dis- 
allowed the  claim  on  the  ground  that  the  bequest  was  a 
gift  for  a  charitable  use  and  void  because  the  will  was 
executed  within  thirty  days  before  the  testator's  death. 

The  court  dismissed  the  exceptions  to  the  auditor's 
report. 

Errors  assigned  were  the  decree  of  the  court  dismissing 
the  exceptions  to  the  auditor's  report  and  confirming  the 
report  making  distribution. 

Nicholas  H.  Larzelere,  of  Larzelere,  Wright  d  LarzeV- 
ere,  with  him  George  Douglas  Hay  and  B.  Gordon  Brom- 
ley, for  appellant. — A  beneficial  society  whose  benefits 
and  benevolences  are  confined  exclusively  to  its  con- 
tributing members  is  not  a  charitable  use  within  the 
eleventh  section  of  the  Act  of  April  26,  1855 :  Swift's 
Executors  v.  Beneficial  Society  of  Easton,  73  Pa.  362. 

Montgomery  Evans,  with  him  Aaron  8.  Swartz,  Jr., 
John  M.  Dettra  and  Samuel  H.  High,  for  appellees. — 
Where  the  will  does  not  declare  the  purpose  of  a  gift 
except  by  the  nature  of  the  donee,  the  constitution  and 
principles  governing  the  association  beneficiary  may  be 
considered  as  written  into  the  will:  Yard's  App.,  64 
Pa.  95;  Jeanes's  Est.,  14  Pa.  C.  0.  R.  617;  Amole's  Est., 
32  Pa.  Superior  Ct.  636. 

It  is  only  when  the  charitable  gift  must  benefit  the 
members  exclusively  that  its  charitable  quality  drops 
out :  Swift  v.  Easton  Beneficial  Association,  73  Pa.  362. 


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L AWSON  'S  ESTATE.  79 

1919.]  Arguments — Opinion  of  the  Court 

The  gift  was  for  a  charitable  purpose :  Wright  v.  Linn, 
9  Pa.  433;  Price  v.  Maxwell,  28  Pa.  23;  Donohugh's 
App.,  86  Pa.  306;  Knight's  Est.,  159  Pa.  500. 

Where  charitable  purposes  are  mingled  with  other 
purposes,  or  where  the  terms  used  are  so  broad  that  they 
include  both  charitable  and  noncharitable  purposes,  the 
whole  gift  fails  as  a  charity  for  uncertainty :  11  Corpus 
Juris  330. 

An  association  cannot  change  its  organic  law  so  as  to 
divert  its  property  to  uses  that  are  in  conflict  with  the 
purposes  for  which  it  was  formed  and  to  divert  funds 
which  it  received,  when  its  organic  law  provided  for  the 
application  of  such  funds  to  a  charitable  use:  Jeane's 
Est.,  14  Pa.  C.  C.  E.  617;  Bethlehem  Borough  v.  Perse- 
verance Fire  Co.,  81  Pa.  445;  Humane  Fire  Company's 
App.,  88  Pa.  389;  Centennial,  etc.,  Association  of  Valley 
Forge,  235  Pa.  206;  McKissick  v.  Pickle,  16  Pa.  140. 

An  unincorporated  association  can  take  a  gift  for  a 
charitable  use  only :  Phila.  Baptist  Association  v.  Hart, 
4  Wheaton  1;  Frazier  v.  St.  Luke's  Church,  147  Pa.  256; 
Civic  Club  of  Harrisburg  v.  Frank  Payne,  19  Dauphin 
150. 

Opinion  by  Mb.  Justice  Moschziskbb,  February  17, 
1919: 

Henry  Lawson,  who  died  October  17,  1868,  leaving  a 
widow,  two  daughters  and  a  son,  provided  in  his  will, 
dated  October  8,  1868,  that,  after  the  death  of  his  wife 
and  children,  one-half  of  his  residuary  estate  should  be 
paid  to  the  "Albion  Society  of  Philadelphia  and  their 
successors" ;  upon  the  decease  of  the  life  tenants,  the 
trustees  under  the  will  filed  an  account,  and,  when  it 
came  up  for  adjudication,  the  Albion  Society  claimed 
one-half  of  the  residuary  estate;  but  the  court  below  de- 
termined that  the  gift  was  a  charitable  bequest,  and, 
since  the  will  was  made  less  than  one  calendar  month 
before  testator's  decease,  the  bequest  failed;  the  fund 


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80  LAWSON  'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

in  question  was  accordingly  awarded  to  the  Lawson 
heirs;  and  the  unsuccessful  claimant  has  appealed. 

The  Albion  Society  is  an  unincorporated  association 
organized  in  1855,  its  objects  being  (1)  benevolent — 
"the  advice  and  assistance  of  members  of  the  society  and 
natives  of  England  or  any  of  the  islands,  colonies,  terri- 
tories or  dependencies  of  Great  Britain,  to  their  wives, 
widows  and  children,  in  distress  in  the  City  of  Phila- 
delphia"; and  (2)  social — "to  promote  social  intercourse 
among  the  members  of  this  Society."  Membership  is  re- 
stricted to  natives  of  England,  the  islands,  colonies,  ter- 
ritories or  dependencies  of  Great  Britain,  with  their  de- 
scendants to  the  third  generation,  and  to  British  officers 
and  their  sons,  wherever  born. 

Henry  Lawson  was  one  of  the  founders  of  this  society 
and  an  active  member  to  the  time  of  his  death.  In  1856 
there  were  ninety-three  active,  three  honorary,  and  seven 
life  members;  during  the  first  year  of  the  society's  ex- 
istence, it  relieved  eighty-five  single  persons  and  one 
hundred  and  six  families,  comprising  five  hundred  and 
ten  individuals,  and  these  activities  still  continue,  its 
sources  of  revenue  for  such  purposes  being  admission  and 
life  membership  fees,  annual  subscriptions,  special  and 
general  donations. 

The  by-laws  require  that  the  admission  fees  be  "safely 

invested  so  as  to  form  a  fund,  the  interest  of  which 

shall  be  distributed  in  benevolence,  after  payment  of  ab- 
solutely necessary  expenses" ;  that  the  annual  subscrip- 
tions, and  special  donations  "for  the  purpose,"  shall  be 
distributed  in  benevolence;  but  there  is  no  particular 
provision  as  to  the  use  of  life  membership  fees,  nor  any 
evidence  as  to  how  much  they  amounted  to,  if  anything, 
after  the  first  year  of  the  society's  existence,  or  as  to  how 
they  were  actually  applied ;  finally,  it  is  provided  that 

"general  donations  to  the  society  shall  be  invested 

and  the  interest  accruing  therefrom  shall  be  added  to 
the  distribution  fund  of  the  society,"  the  only  distribu- 
tion fund  designated  in  the  by-laws  being  that  directed  to 


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LAWSON'S  ESTATE.  81 

1910.]  Opinion  of  the  Court. 

be  "distributed  in  benevolence,"  after  payment  of  "the 
absolutely  necessary  expenses  of  the  society." 

Two  months  after  the  society's  organization,  a  resolu- 
tion, duly  authorized  by  its  by-laws,  was  passed,  creating 
"charity"  and  "contingent"  funds;  this  resolution  di- 
rects that  $4  of  the  annual  subscription  fee  of  $6  from 
each  member  "be  credited  to  the  charity  fund  and  f 2  to 
the  contingent  fund,  which  latter  fund  is  to  be  charged 
with  the  expenses  of  providing  postage,  books  and  other 
like  expenses,  and,  at  the  close  of  each  year,  whatever 
amount  remains  unexpended  in  the  contingent  fund  is  to 
be  transferred  to  the  charity  fund."  No  salaries  are  at- 
tached to  any  of  the  offices,  although  most  of  the  incum- 
bents are  relieved  of  dues. 

While  the  constitution  provides  that,  in  addition  to 
the  benevolent  objects  of  the  society,  it  shall  exist  to  pro- 
mote social  intercourse  among  the  members,  the  only 
social  feature  mentioned  in  any  of  its  laws  is  a  provision 
for  an  annual  anniversary  dinner,  it  being  expressly  stip- 
ulated that  "no  expense  attending  the  dinner  shall  be 
chargeable  either  to  the  distribution,  contingent  or  per- 
manent fund  of  the  society."  In  this  connection,  the 
auditor  finds  the  expenses  of  the  annual  dinner  were 
paid,  "presumably,  by  the  members  voluntarily,  and 
surely  not  out  of  the  treasury  of  the  society" ;  further, 
that  "the  Albion  Society  was  organized  and  existed  in 
1868  [the  date  of  testator's  will  and  death]  wholly  for 
benevolent  and  charitable  purposes,  except  the  social 
intercourse  derivable  from  the  association  of  the  mem- 
bers at  its  monthly  meetings  and  at  an  annual  dinner," 
adding,  "The  social  feature  of  the  society  is  a  negligible 
quantity  and  unattended  by  any  cost  or  expense  out  of 
the  funds  of  the  society." 

On  the  findings  which  we  have  recited,  and  others  of  a 
like  kind,  the  auditor  concluded  that  the  bequest  to  the 
Albion  Society  was  a  gift  in  trust  for  charitable  uses ; 
this  was  affirmed  by  the  court  below  and  is  disputed  here. 

Vol.  cclxiv — 6 

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82  LAWSON'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

Before  discussing  the  propriety  of  the  conclusion  under 
attack,  we  shall  first  cite  the  statute  and  then  review 
certain  relevant  authorities.  Section  11  of  the  Act  of 
April  26,  1855,  P.  L.  328,  332,  provides  that  "No  estate 

shall  hereafter  be  bequeathed,  devised  or  conveyed 

to  any  body  politic,  or  to  any  person  in  trust  for  religious 
or  charitable  uses,  except  the  same  be  done  by  deed  or 
will at  least  one  calendar  month  before  the  de- 
cease of  the  testator  or  alienor ;  and  all  dispositions  of 
property  contrary  hereto  shall  be  void,  and  go  to  the 
residuary  legatee  or  devisee,  next  of  kin  or  heirs,  accord- 
ing to  law." 

It  is  now  settled  in  Pennsylvania  that  a  bequest  for 
religious  or  charitable  purposes,  may  be  lawfully  made 
to  an  unincorporated  society  (Evangelical  Association's 
App.,  35  Pa.  316;  Yard's  App.,  64  Pa.  95, 100;  see  also 
opinion  of  Rice,  P.  J.,  in  Amole's  Est.,  32  Pa.  Superior 
Ct.  636,  640) ;  and,  that,  if  it  takes  such  a  bequest,  the 
society,  "whether  incorporated  or  not,  is  but  a  trustee, 
bound  to  apply  its  funds  in  furtherance  of  the  charity 
and  not  otherwise"  (Fire  Ins.  Patrol  v.  Boyd,  120  Pa. 
624,647;  if  the  legatee  cannot,  or  does  not,  take  the  be- 
quest, then  the  court  of  common  pleas  may  appoint  a 
trustee  to  enforce  the  charitable  trust  (Frazier  v.  St. 
Luke's  Church,  147  Pa.  256) ;  and,  upon  a  dissolution  of 
an  unincorporated  association,  the  courts  will  care  for  its 
charity  funds  in  accordance  with  their  dedication :  Beth- 
lehem Borough  v.  Perseverance  Fire  Co.,  81  Pa.  445; 
Thomas  v.  Ellmaker,  1  Parson's  Cases  99,  approved  in 
Humane  Fire  Co's  App.,  88  Pa.  389,  392;  see  also  Cen- 
tennial and  Memorial  Association  of  Valley  Forge,  235 
Pa,  206,  213. 

In  Fire  Ins.  Patrol  v.  Boyd,  supra,  p.  645,  we  state,  "A 
charity,  in  legal  sense,  may  be  more  fully  defined  as  a 
gift  to  be  applied,  consistently  with  existing  laws,  for 
the  benefit  of  an  indefinite  number  of  persons,  either  by 
bringing  their  minds  or  hearts  under  the  influence  of 
education  or  religion,  by  relieving  their  bodies  from  dis- 


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LAWSON'S  ESTATE.  83 
1919.]                            Opinion  of  the  Court. 
ease,  suffering  or  constraint,  by  assisting  them  to  estab- 
lish themselves  in  life " ;  and  this  definition  of  a 

public  charity  is  repeated  in  Centennial  and  Memorial 
Association  of  Valley  Forge,  supra. 

When  the  bequest  is  to  an  association  whose  benevo- 
lence is  restricted  to  its  members  only,  it  is  not  a  public 
charity  (Babb  v.  Reed,  5  Rawle  150;  Swift  v.  Easton 
Beneficial  Society,  73  Pa.  362) ;  but,  if  the  recipient's 
benevolence  extends  to  an  indefinite  number  of  nonmem- 
bers,  it  may  be  counted  a  public  charity,  (as,  for  in- 
stance, in  Pickering  v.  Shotwell,  10  Pa.  23,  where  the  be- 
quest was  to  the  Monthly  Meeting  of  Friends  of  Phila- 
delphia, an  unincorporated  society,  for  "distribution  of 
good  books  among  the  poor  people  in  the  back  part  of 
Pennsylvania,"  and  in  Young  v.  Lutheran  Church,  200 
Pa.  332,  where  the  gift  was  "for  the  relief  of  the  worthy 
poor  of  Hanover") ;  and  the  mere  fact  that  members  of 
the  association  also  may  share  in  the  general  benev- 
olence will  not,  ex  necessitate,  defeat  the  charity  (Dono- 
hugh's  App.,  86  Pa.  306;  Kimberley's  Est,  249  Pa.  483, 
491) ,  so  long  as  the  gift  is  for  the  benefit  of  an  "indefinite 
number  of  persons,"  in  the  legal  sense  of  that  term, — 
that  is  to  say,  for  the  benefit  of  all  persons  belonging  to 
the  recognized  charitable  classes  covered  by  the  benevo- 
lence in  question:  see  Judge  Penrose's  opinion  in 
Jeanetfs  Est.,  14  Pa.  C.  C.  R.  617,  619. 

Finally,  where  a  legacy  is  given  in  general  language 
to  an  association  organized  chiefly  for  charitable  pur- 
poses, the  presumption  is  that  testator  intended  the  be- 
quest solely  for  the  charitable  uses  of  the  legatee  society ; 
and  there  is  an  implied  trust  that  the  money  shall  be  so 
used:  Jeanes's  Est.,  supra.,  p.  619;  Magill  v.  Brown, 
Brightly's  Reports  406.  Moreover,  where  the  legatee 
society  has  two  purposes,  one  clearly  charitable  and  the 
other  not,  its  charitable  use  funds  will  be  protected  by 
the  courts  against  any  character  of  diversion:  Shars- 
wood,  J.,  in  Mayer  v.  Society  for  Visitation  of  Sick,  2 
Brewster  388. 


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84  LAWSON'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

Appellant  admits,  in  the  statement  of  questions  in- 
volved and  throughout  its  printed  argument,  that  the 
benevolence  of  the  Albion  Society  extends  beyond  its 
needy  membership  to  all  natives  of  England,  or  of  the 
British  islands,  colonies,  territories  and  dependencies, 
who  may  be  in  distress,  in  the  City  of  Philadelphia,  and 
also  to  their  wives,  widows  and  children.  It  will  be 
noticed  that  this  large  class  of  charitable  objects  would 
embrace  practically  all  members  of  the  society,  when  in 
distress,  even  were  they  not  specially  mentioned  as  en- 
titled to  assistance;  in  other  words,  the  members  are 
placed  on  a  par  with  all  other  needy  persons  of  British 
nativity  or  descent,  in  the  City  of  Philadelphia,  so  far  as 
the  society's  benevolence  is  concerned. 

When  the  general  principles  which  we  have  enumer- 
ated are  applied  to  the  facts  justifiably  found  by  the 
auditor,  and  stated  in  this  opinion,  it  is  clear  that  the 
legatee  named  by  testator  is  a  charity,  within  the  meaning 
of  the  law,  to  such  an  extent  as  to  make  his  gift  to  it 
void  under  the  Act  of  1855,  supra ;  and  the  court  below 
did  not  err  in  so  ruling. 

After  testator's  death,  appellant  society  made  certain 
changes  in  its  laws,  enlarging  the  social  features  at  the 
expense  of  its  charitable  purposes ;  but  the  auditor  and 
the  court  below  properly  refused  to  allow  this  fact  in 
any  way  to  control  the  determination  of  the  present  case. 
A  society  or  association,  incorporated  or  otherwise,  can- 
not change  its  organic  law  or  prime  purpose  so  as  to 
divert  charitable  funds  to  other  uses  (see  cases,  supra), 
and  this,  apparently,  is  what  was  attempted  by  the 
changes  here  sought  to  be  shown;  hence  there  was  no 
error  in  refusing  to  consider  the  evidence  relating 
thereto. 

The  assignments  of  error  are  overruled  and  the  decree 
of  the  court  below  is  affirmed ;  costs  to  be  paid  out  of  the 
fund. 


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COMMONWEALTH  v.  BROWN,  Appellant.  85 

1919.]  Syllabus, 


Commonwealth  v.  Brown,  Appellant. 

Criminal  law — Murder — Degrees — Charge  —  Interrogation  as  to 
other  crime— Desertion  from  army— "Offense"— Act  of  March  15, 
1911,  P.  L.  20 — Statement  of  dying  man — Res  gestm — Admission — 
Reading  evidence — Exhibit — Discretion  of  court — Appeal — Review 
— Harmless  error. 

1.  Where,  on  the  trial  of  an  indictment  for  murder,  the  trial 
judge  eliminates  all  questions  of  murder  committed  during  the  per- 
petration of  burglary,  he  commits  no  error  in  refusing  to  affirm 
points  to  the  effect  that,  as  there  was  no  evidence  to  show  the  store 
entered  by  defendant,  was  part  of  a  dwelling  house,  defendant  could 
not  be  convicted  of  murder  committed  in  the  course  of  burglary 
within  the  meaning  of  the  statute  defining  the  degrees  of  murder. 

2.  In  such  a  case,  while  the  trial  judge  might  have  affirmed  the 
points,  his  failure  to  do  so,  in  view  of  the  circumstances,  did  no 
harm,  and  was  not  reversible  error. 

3.  A  conviction  of  murder  will  not  be  reversed,  because  the  dis- 
trict attorney  asked  the  defendant  whether  he  was  a  deserter 
from  the  army,  and  the  defendant  answered  in  the  affirmative, 
where  it  appears  that  no  objection  was  made  at  the  time  to  the 
question,  that  subsequently  defendant  was  interrogated  by  his 
own  counsel  about  the  matter,  and  no  objection  was  taken  to 
the  testimony  until  the  court  refused  to  permit  defendant  to  give 
his  reasons  for  deserting.  Under  such  circumstances  the  objection 
came  too  late. 

4.  Not  decided  whether  desertion  from  the  army  is  an  offense 
within  the  meaning  of  the  Act  of  March  15,  1911,  P.  L.  20,  which 
forbids  persons  under  trial  from  being  interrogated  as  to  the 
commission  of  other  crimes  by  them. 

5.  On  the  trial  of  an  indictment  for  murder  testimony  of  a  wit- 
ness that  the  deceased,  immediately  before  his  death,  stated  that 
defendant  had  shot  him,  is  admissible,  where  the  evidence  shows 
that  the  statement  was  made  within  the  presence  and  hearing  of  the 
defendant.  If  there  is  a  question  whether  the  defendant  actually 
heard  this  particular  statement,  it  is  for  the  jury  to  decide. 

6.  It  is  not  reversible  error  for  the  trial  judge  in  a  murder  trial 
to  refuse  the  request  of  a  juror  to  have  read  to  him  a  portion  of 
the  testimony,  which  he  claimed  he  had  not  heard.  The  reading  of 
such  testimony  would  give  it  undue  prominence  over  other  testi- 
mony, and  work  an  injustice  to  one  side  or  the  other. 


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86         COMMONWEALTH  v.  BROWN,  Appellant. 

Syllabus — Arguments.  [264  Pa. 

7.  Nor  is  it  reversible  error  in  such  a  trial  to  refuse  a  request  of 
a  juror  to  view  an  exhibit  which  he  claimed  he  had  not  seen,  where 
it  is  not  shown  that  the  exhibit  had  been  offered  in  evidence,  or 
any  request  had  been  made  to  send  it  out  with  the  jury.  Such  a 
matter  is  within  the  discretion  of  the  trial  judge. 

8.  Where  a  defendant  is  tried  for  the  killing  of  two  men,  under 
very  similar  circumstances,  the  fact  that  the  jury  returned  a  verdict 
of  first  degree  as  to  one  of  the  men  and  of  second  degree  as  to  the 
other,  is  no  ground  for  reversal. 

Argued  Jan.  7,  1919.  Appeal,  No.  5,  Oct.  T.,  1919, 
by  defendant,  from  judgment  of  O.  &  T.  Allegheny  Co., 
Sept.  T.,  1913,  No.  33,  on  verdicts  of  murder  of  the  first 
degree  and  murder  of  the  second  degree  in  case  of  Com- 
monwealth v.  Robert  Henry  Brown.  Before  Brown, 
C.  J.,  Stewart,  Moschzisker,  Prazer,  Walling,  Simp- 
son and  Kephart,  J  J.    Affirmed. 

Indictment  for  murder  of  Wm.  J.  Elf ord  and  Chas.  L. 
Edinger.    Before  Swearingen,  J. 

Verdict  of  guilty  of  murder  of  the  first  degree  as  to 
Wm.  J.  Elford  and  of  murder  of  the  second  degree  as  to 
Charles  L.  Edinger.    Defendant  appealed. 

Error*  assigned  were  various  rulings  on  evidence  and 
instructions  set  forth  in  the  opinion  of  the  Supreme 
Court. 

W.  St.  Clair  Childs,  with  him  Drayton  Heard,  for  ap- 
pellant.— The  provisions  of  the  Act  of  March  15,  1911, 
P.  L.  20,  were  violated,  for  the  defendant  had  not  put  his 
character  in  issue,  and  there  was  no  basis  for  asking  if 
he  was  a  deserter  from  the  United  States  army :  Com.  v. 
Garanchoskie,  251  Pa.  247;  Com.  v.  Rosmovicz,  21  Pa. 
Dist.  Rep.  1027;  Com.  t.  Melinkoff,  61  Pa.  Superior  Ct. 
238;  Canole  v.  Allen,  222  Pa.  156;  Hopt  v.  Utah,  110  U. 
S.  574;  Thompson  v.  Utah,  170  U.  S.  343. 

Failure  to  charge  there  was  no  burglarly  under  the 
statute  defining  degrees  of  murder,  was  error :  Hollister 


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COMMONWEALTH  v.  BEOWN,  Appellant.         87. 
1919.]  Arguments — Opinion  of  the  Court. 

y.  Com.,  60  Pa.  103;  Roland  v.  Com.,  82  Pa.  306;  Roland 
v.  Com.,  85  Pa.  66. 

The  hearsay  testimony  should  have  been  rejected; 
Com.  v.  Dorwart,  19  Pa.  Dist.  Rep.  740. 

Harry  A.  Estep,  Assistant  District  Attorney,  with  him 
Harry  H.  Rowand,  District  Attorney,  for  appellee. 

Opinion  by  Mr.  Justice  Frazer,  March  10, 1919: 

On  the  night  of  June  5,  1917,  defendant  entered  the 
vestibule  of  the  liquor  store  of  William  L.  Elford,  in  the 
City  of  Pittsburgh.  He  was  discovered  by  William  J. 
Elford,  son  of  the  owner,  who  notified  the  police,  and 
while  he  and  two  policemen,  including  one  Edinger,  were 
attempting  to  force  their  way  into  the  entry  two  shots 
were  fired  from  the  inside,  one  of  which,  according  to  the 
theory  of  the  Commonwealth,  struck  officer  Edinger  and 
the  other  young  Elford,  both  of  whom  died  later  from 
their  injuries.  Defendant  escaped  from  the  doorway 
and  in  passing  out  by  the  rear  was  discovered  and  wound- 
ed by  a  bullet  from  the  revolver  of  an  officer  who  had  been 
directed  to  guard  that  part  of  the  premises.  Defendant 
was  indicted  and  convicted  in  the  court  below  on  two 
separate  indictments  which  were  tried  together,  one  for 
the  murder  of  William  J.  Elford,  and  the  other  for  the 
murder  of  officer  Edinger;  the  verdict  in  the  Elford  case 
being  first  degree  murder  and  in  the  other  second  degree 
murder.  The  facts  connected  with  the  crime  were  fully 
submitted  to  the  jury  in  a  careful  charge;  reference  to 
the  evidence  in  detail  is  unnecessary  except  in  so  far  as 
it  may  have  a  bearing  on  certain  questions  raised  in  the 
assignments  of  error. 

The  first  and  second  assignments  are  to  the  refusal  of 
a  new  trial  and  to  the  entry  of  judgment  on  the  verdict, 
these  questions  will  be  considered  under  the  other  assign- 
ments. 

'  The  third  and  fourth  assignments  complain  of  the  re- 
fusal of  the  court  to  affirm  points  to  the  effect  that  there 


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88  COMMONWEALTH  v.  BROWN,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

being  no  evidence  tending  to  show  the  store  entered  by 
defendant  was  part  of  a  dwelling  house,  defendant  could 
not  be  convicted  of  murder  committed  in  the  course  of 
burglary  within  the  meaning  of  the  statute  defining  the 
degrees  of  homicide.  The  trial  judge  refused  these  points 
as  being  "immaterial  under  the  general  charge."  At  the 
outset  of  the  charge  the  jury  were  instructed  they  were 
not  concerned  with  the  fact  that  defendant  entered  the 
building  and  was  there  for  an  unlawful  purpose,  nor  did 
the  Commonwealth  base  its  prosecution  upon  the  theory 
that  the  homicide  was  committed  while  defendant  was 
attempting  to  commit  burglary.  In  discussing  the  de- 
gree of  murder  the  court  read  to  the  jury  the  portion  of 
the  statute  defining  murder  of  the  first  and  second  de- 
gree and  stated  further,  that,  "in  this  case  you  have 
only  to  deal  with  the  murder  committed  by  'any  other 
kind  of  wilful,  deliberate  and  premeditated  killing*; 
as,  for  example,  it  is  not  contended  that  this  killing  oc- 
curred by  means  of  poison,  or  by  means  of  lying  in  wait, 
so  that  the  portion  of  the  statute  which  you  have  to  apply 
to  the  evidence  here  is  what  we  have  indicated  to  you, 
namely,  murder  committed  by  any  kind  of  wilful,  delib- 
erate and  premeditated  killing."  After  this  instruc- 
tion the  court  further  charged  as  to  the  elements 
necessary  to  constitute  wilful,  deliberate  and  premedi- 
tated murder  within  the  meaning  of  the  law.  This  in- 
struction was  followed  by  the  affirmance  of  defendant's 
fifth  point  to  the  effect  that  there  could  be  no  finding  of 
murder  of  the  first  degree,  unless  the  jury  was  convinced 
the  killing  was  wilful,  deliberate  and  premeditated,  and, 
finally,  at  the  close  of  the  charge,  in  answer  to  an  oral 
request  that  the  jury  be  further  instructed  that  the 
case  did  not  come  within  the  provisions  of  the  statute  re- 
lating to  murder  committed  in  the  course  of  rape,  rob- 
bery, arson  or  burglary,  the  court  stated :  "We  do  not 
think  it  necessary  to  repeat  what  we  have  said,  namely, 
that  the  jury  only  has  to  deal  with  one  kind  of  murder  of 


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COMMONWEALTH  v.  BROWN,  Appellant.  89 

1919.]  Opinion  of  the  Court. 

the  first  degree  and  do  not  see  any  necessity  for  repeat- 
ing what  we  have  already  said." 

All  questions  of  murder  committed  during  the  perpe- 
tration of  burglary  were  eliminated;  consequently,  the 
court  was  not  in  error  in  stating  the  points  were  imma- 
terial under  the  general  charge.  The  trial  judge  in  using 
the  illustration  referred  to  clearly  showed  it  was  not  con- 
tended the  killing  occurred  by  means  of  poison  or  lying  in 
wait  and  did  not  intend  to  convey  the  impression  that 
an  inference  might  be  drawn  that  the  killing  occurred 
during  an  attempt  to  commit  burglary,  nor  could  the 
jury  have  received  such  impression,  as  there  was  no  at- 
tempt to  refer  to  the  latter  clause  of  the  statute  relating 
not  only  to  burglarly  but  also  to  arson,  rape  and  robbery. 
While  the  trial  judge  might  have  affirmed  the  point,  his 
failure  to  do  so,  in  view  of  the  circumstances  above  re- 
ferred to,  did  no  harm  and  is  not  reversible  error :  Crea- 
chen  v.  Bromley  Bros.  Carpet  Co.,  214  Pa.  15;  Miller  v. 
James  Smith  Woolen  Machinery  Co.,  220  Pa.  181;  Huf- 
nagle  v.  Delaware  &  Hudson  Co.,  227  Pa.  476.  See  also 
Commonwealth  v.  McManus,  143  Pa.  64,  84,  85. 

The  fifth  and  sixth  assignments  of  error  are  to  the  re- 
fusal of  the  court  to  withdraw  a  juror  and  continue  the 
case  because  the  district  attorney  asked  defendant, 
on  cross-examination,  whether  he  was  a  deserter  from 
the  United  States  army.  Defendant  answered  in  the 
affirmative.  No  objection  was  raised  at  the  time.  Sub- 
sequently his  desertion  from  the  army  was  again  re- 
ferred to  by  defendant  under  examination  by  his  counsel, 
and  the  fact  brought  out  that  a  third  person,  who  had 
knowledge  of  the  matter,  had  been  blackmailing  defend- 
ant, and  on  the  evening  of  the  crime  demanded  ten  dol- 
lars on  threat  of  exposure  if  the  demand  was  not  com- 
plied with ;  the  purpose  of  this  being  to  disprove  malice 
in  committing  the  crime  charged.  On  being  asked  by 
his  counsel  why  he  deserted  the  army,  an  objection  that 
his  action  in  so  doing  was  immaterial  was  sustained  by 
the  court,  and  a  motion  to  withdraw  a  juror,  based  on 

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90  COMMONWEALTH  v.  BROWN,  Appellant. 

Opinion  of  the  Ceurt.  [264  Pa. 

the  admission  of  the  answer  to  the  question  the  day  be- 
fore, refused.  The  Act  of  March  15, 1911,  P.  L.  20,  pro- 
vides that:  "Hereafter  any  person  charged  with  any 
crime,  and  called  as  a  witness  in  his  own  behalf,  shall  not 
be  asked,  and,  if  asked,  shall  not  be  required  to  answer, 
any  question  tending  to  show  that  he  has  committed,  or 
been  charged  with,  or  been  convicted  of  any  offense 
other  than  the  one  wherewith  he  shall  then  be  charged,  or 
tending  to  show  that  he  has  been  of  bad  character  or 
reputation."  The  wording  of  this  act  is  mandatory  and 
expressly  forbids  the  asking  of  a  question  relating  to  the 
commission  of  another  offense,  the  legislature  apparently 
having  in  mind  that  the  mere  asking  of  such  question  has 
a  tendency  to  create  in  the  minds  of  the  jury  an  unfavor- 
able impression  of  defendant,  whether  it  be  entirely  with- 
out foundation  in  fact  and  asked  from  improper  motives, 
or  whether  it  be  based  upon  fact  and  defendant  is  obliged 
to  take  advantage  of  his  right  to  refuse  to  incriminate 
himself.  To  hold  the  clause  "if  asked  shall  not  be  re- 
quired to  answer"  was  intended  to  operate  as  an  implied 
recognition  of  the  right  to  ask  the  question,  as  argued  by 
the  district  attorney,  is  to  ignore  entirely  the  express 
mandate  of  the  earlier  clause  and  render  it  ineffective, 
inasmuch  as,  if  such  had  been  the  intention,  it  would 
have  been  sufficient  to  insert  only  the  provision  that  a 
defendant  in  a  criminal  case  shall  not  be  required  to 
answer  any  question  tending  to  show  the  commission  of 
another  offense:  Commonwealth  v.  Garanchoskie,  251 
Pa.  247,  251.  The  word  "offense,"  while  sometimes 
used  in  various  senses,  generally  implies  a  crime  or  mis- 
demeanor, infringing  public  as  distinguished  from  mere 
private  rights,  and  punishable  under  the  criminal  laws : 
Black's  Law  Dictionary,  847;  29  Cyc.  1351,  1353,  and 
cases  cited ;  Fetter  v.  Wilt  et  al.,  46  Pa.  457,  460 ;  though 
it  may  also  include  the  violation  of  a  penal  statute  for 
which  the  remedy  is  merely  a  civil  suit  to  recover  the 
penalty :  Ott  v.  Jordan,  116  Pa.  218,  224.  In  construing 
the  word  in  any  specific  instance  regard  must  be  had  to 


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COMMONWEALTH  v.  BROWN,  Appellant.         91 
1919.]  Opinion  of  the  Court, 

the  sense  in  which  it  was  used.  In  the  Act  of  1911,  the 
purpose  was  to  prevent  the  practice  previously  approved 
by  this  court  in  Commonwealth  v.  Bacco,  225  Pa.  113,  of 
permitting  a  defendant  on  trial  for  crime  to  be  asked 
whether  he  had  not  committed  other  offenses.  The  pur- 
pose of  the  act  was  to  avoid  the  reflection  on  defendant's 
character  which  must  necessarily  result  from  the  mere 
asking  of  such  questions ;  accordingly,  the  apparent  inten- 
tion of  the  legislature  was  to  use  the  word  "offense"  in 
the  sense  of  a  criminal  act  for  which  he  would  be  liable 
to  prosecution  under  the  criminal  law.  Defendant  was 
subject  only  to  military  rules  and  regulations,  and  while 
the  punishment  for  such  act  would,  no  doubt,  depend  to 
some  extent  upon  whether  a  state  of  war  existed  at  the 
time  the  desertion  occurred,  as  well  as  the  circumstances 
under  which  it  took  place,  with  this  we  are  not  concerned. 
In  view  of  the  fact  that  no  objection  was  raised  to  the 
relevancy  of  defendant's  desertion  from  the  army  at  the 
time  the  question  was  asked,  and  for  the  further  reason 
that  defendant  was  afterwards  interrogated  by  bis  coun- 
sel in  regard  to  the  matter,  and  not  until  the  court  re- 
fused to  permit  defendant  to  give  his  reason  for  deserting 
was  there  objection  to  the  testimony,  we  are  of  opinion 
the  objection  came  too  late,  and  the  court  was  right  in 
its  refusal  to  withdraw  a  juror  as  requested.  Under 
these  circumstances  we  deem  it  unnecessary  to  determine 
whether  or  not  desertion  from  the  army  is  an  offense 
within  the  meaning  of  the  Act  of  1911. 

The  seventh  assignment  of  error  complains  of  the  ad- 
mission of  testimony  to  the  effect  that  the  witness  asked 
young  Elford,  at  the  time  he  was  lying  on  the  ground 
within  a  few  feet  of  defendant,  who  shot  him,  to  which 
Elford  replied  that  defendant  had  shot  him,  the  latter 
making  no  reply.  The  testimony  thus  offered  was  not 
competent  as  part  of  the  res  gestae  of  the  shooting,  but  a 
mere  narrative  of  how  it  occurred,  given  in  response  to 
the  question  by  the  witness.  The  fact,  however,  that  de- 
fendant was  present  and  heard  the  conversation,  and  had 

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92         COMMONWEALTH  v.  BROWN,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

an  opportunity  to  reply  but  made  no  denial  of  the  charge, 
was  evidence  from  which  the  jury  might  infer  an  admis- 
sion that  he  did  the  shooting :  Commonwealth  v.  Leskoski, 
225  Pa.  382;  Commonwealth  v.  Ballon,  229  Pa.  323. 
While  it  must  be  conceded  that  before  defendant's  silence 
can  amount  to  an  admission  it  must  appear  the  conver- 
sation took  place  in  his  presence  and  hearing,  the  testi- 
mony shows  defendant  was  within  hearing,  and,  in  fact, 
he  admitted  this.  It  was  for  the  jury,  therefore,  to  de- 
termine from  the  circumstances  whether  defendant  ac- 
tually heard  this  particular  part  of  the  conversation: 
Commonwealth  v.  Detweiler,  229  Pa.  304. 

The  eighth  assignment  is  the  refusal  of  the  court  to 
permit  the  jury,  at  the  request  of  one  of  them,  to  have 
read  a  portion  of  the  testimony  of  certain  witnesses,  and 
also  to  view  an  exhibit  (a  photograph  of  the  premises) 
used  on  the  trial.  The  juror  stated  he  had  not  heard 
certain  testimony  and  had  not  had  an  opportunity  to 
examine  the  exhibit  when  passed  around  at  the  trial,  but 
had  been  informed  at  the  time  by  one  of  the  attorneys 
that  the  privilege  of  examining  it  later  would  be  given 
him.  The  court  declined  to  do  as  requested  but  com- 
plied with  an  additional  request  to  give  further  instruc- 
tions on  the  question  of  reasonable  doubt.  The  refusal  to 
read  the  notes  of  testimony  was  proper  under  the  rule 
stated  in  Commonwealth  v.  Ware,  137  Pa.  465,  as  to  do 
so  would  give  the  testimony  read  undue  prominence  over 
other  testimony,  and  thus  work  an  injustice  to  one  side 
or  the  other.  In  regard  to  the  refusal  to  permit  the  jury 
to  examine  the  exhibit,  it  does  not  appear  why  the  ex- 
hibit had  not  been  sent  out  with  the  jury  or  whether  there 
had  been  a  request  made  to  that  effect,  or  even  that  the 
exhibit  had  been  formally  offered  in  evidence.  The  mat- 
ter was  one  within  the  discretion  of  the  trial  judge :  Kit- 
tanning  Insurance  Co.  v.  O'Neill,  110  Pa.  548,  552;  Cav- 
anaugh  v.  Buehler,  120  Pa.  441,  458 ;  and  it  does  not  ap- 
pear that  defendant  was  in  any  manner  prejudiced  by 


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COMMONWEALTH  v.  BROWN,  Appellant.         93 
1919.]  Opinion  of  the  Court. 

the  absence  of  the  exhibit  from  the  jury  room :  Riddles- 
burg  Iron  &  Coal  Co.  v.  Rogers,  65  Pa.  416. 

Defendant  also  contends  the  verdicts  in  the  two  cases 
are  inconsistent.  The  theory  of  the  Commonwealth  was 
that  the  defendant  fired  two  shots  at  the  time  he  was  in- 
side the  vestibule  and  just  as  the  door  was  pushed  open 
from  the  outside  by  the  officers  and  that  immediately 
thereafter  several  shots  were  fired  by  the  officers  through 
the  door.  The  contention  of  defendant  is  that  only  one 
shot  was  fired  by  him  and  that  without  intention  of  in- 
juring those  on  the  outside  of  the  door,  and  that  the  re- 
sulting injury  was  entirely  accidental.  However  this 
may  be,  there  were  two  fatal  shots  from  a  38-caliber  re- 
volver, the  size  used  by  defendant.  While  it  is  difficult 
to  discover  a  reasonable  basis  for  distinction  between 
the  verdicts  in  the  two  cases,  the  degree  of  the  crime  in 
each  case  was  for  the  jury,  and  the  fact  that  the  conclu- 
sions differed  is  no  reason  for  reversal. 

The  judgment  is  affirmed  and  the  record  remitted  for 
purpose  of  execution. 


Minute  v.  Philadelphia  &  Reading  Railway 
Company,  Appellant. 

Negligence — Railroads — Infant — Trespasser  on  cars. 

1.  In  an  action  by  a  boy  nine  years  old  against  a  railroad  com- 
pany to  recover  for  personal  injuries,  the  case  is  for  the  jury 
where  the  evidence  for  plaintiff  tends  to  show  that  at  the  time  of 
the  accident,  the  boy  crossed  the  railroad  tracks  to  see  his  father; 
i  that  in  returning,  he  climbed  on  top  of  a  car  in  a  train,  with  the 
intention  of  passing  over  it,  to  reach  his  home;  that  as  he 
reached  the  end  of  the  car,  a  man  dressed  as  a  brakeman,  with 
overalls,  cap,  carrying  a  brake  stick  and  brakeman's  lantern,  ap- 
peared at  the  other  end  of  the  same  car;  that  the  car  started  to 
move  with  the  boy  on  it,  holding  fast,  when  a  brakeman  on  the 
same  car  ordered  him  from  the  train;  that  the  brakeman  threw 
a  piece  of  coal  at  the  lad,  striking  him  on  the  back,  and  called 
him  vile  names;    that  the  scared  boy  was  in  the  act  of  getting 


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94        MINUTE  v.  PHILA.  &  E.  BY.  CO.,  Appellant. 

Syllabus— Arguments.  [264  Pa 

down,  when  the  coal  struck  him;  and  that  at  about  the  same 
time  the  car  gave  a  bump  and  he  fell  on  the  tracks  and  was  in- 
jured. 

2.  The  evidence  was  sufficient  to  sustain  an  affirmative  finding 
that  the  man  who  chased  the  boy  from  the  train  was  an  employee 
of  the  defendant,  and  that  his  acts  were  within  the  scope  of  his 
employment,  and  the  proximate  cause  of  the  accident. 

3.  In  such  a  case  it  is  not  essential  to  a  recovery  that  there  be 
present  elements  of  recklessness  or  gross  negligence.  Proof  of 
what  under  ordinary  circumstances  might  be  termed  "mere  negli- 
gence" is  enough. 

Practice,   C.  P. — Pleading — Variance — Appeals — Negligence. 

4.  A  judgment  on  a  verdict  in  an  accident  case  will  not  be  re- 
versed because  of  the  admission  of  evidence  alleged  to  be  at 
variance  with  the  averments  of  the  statement,  where  no  objection 
was  made  at  the  trial  to  its  admission,  no  motion  was  made  to 
strike  it  out,  or  for  a  nonsuit,  and  on  the  appeal,  no  assignment  of 
error  raised  the  question  of  variance. 

Argued  Jan.  9, 1919.  Appeals,  Nos.  15  and  16,  Jan.  T., 
1919,  by  defendant,  from  judgments  of  C.  P.  No.  2, 
Phila.  Co.,  June  T.,  1914,  No.  2613,  on  verdicts  for  plain- 
tiffs in  case  of  John  Minute,  by  his  next  friend  and  father, 
Albano  Minute,  and  Albano  Minute,  in  his  own  right,  v. 
Philadelphia  &  Beading  Railway  Company.  Before 
Brown,  C.  J.,  Stewart,  Moschziskbr,  Frazbr,  Wal- 
ling, Simpson  and  Kephart,  JJ.    Affirmed. 

Trespass  by  a  boy  nine  years  old  and  his  father  to  re- 
cover damages  for  personal  injuries.    Before  Wbssbl,  J. 

Vefrdict  and  judgment  for  John  Minute  for  $ 7,500,  and 
for  Albano  Minute  for  $ 2,500.    Defendant  appealed. 

Errors  assigned  were  in  overruling  defendant's  motion 
for  judgments  n.  o.  v. 

Wm.  Clarke  Mason,  for  appellant. — Plaintiffs  failed  to 
prove  sufficient  facts  to  show  the  identity  of  the  person 
alleged  to  have  committed  the  acts  complained  of  as  a 
brakeman  in  the  employ  of  the  defendant  company: 


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MINUTE  v.  PHILA.  &  R.  RY.  CO.,  AppeUant.         95 
1919.]  Arguments — Opinion  of  the  Court. 

Dunne  v.  Penna.  R.  R.  Co.,  249  Pa.  76;  Stidfole  v.  Phila. 
&  Reading  Ry.  Co.,  261  Pa.  445. 

The  evidence  produced  by  the  plaintiffs  shows  that  the 
proximate  cause  of  the  injuries  complained  of  was  the 
jolt  of  the  train  necessarily  incident  to  its  proper  oper- 
ation at  a  time  when  John  Minute  was  a  trespasser,  and 
therefore  there  is  no  basis  for  a  recovery  under  the  law : 
Cover  v.  Conestoga  Traction  Co.,  246  Pa.  423 ;  Willis  v. 
Armstrong  County,  183  Pa.  184 ;  Thubron  v.  Dravo  Con- 
tracting Co.,  238  Pa.  443. 

Tl\e  plaintiffs  failed  to  prove  a  wilful  and  intentional 
act  likely  to  cause  injury  to  the  infant  plaintiff  while  in 
a  position  of  obvious  danger.  Enright  v.  Pittsburgh 
Junction  R.  R.  Co.,  198  Pa.  166;  McGinnis  v.  Peoples 
Bros.,  249  Pa.  335. 

Francis  M.  McAdams,  with  him  William  H.  Wilson, 
for  appellee,  cited :  Enright  v.  Pittsburgh  Junction  R.  R. 
Co.,  198  Pa.  166;  Enright  v.  Pittsburgh  Junction  R.  R. 
Co.,  204  Pa.  543;  Pollack  v.  Penna.  R.  R.  Co.,  210  Pa. 
631;  Stephanik  v.  B.  &  O.  R.  R.  Co.,  243  Pa.  43;  Dunne 
v.  Penna.  R.  R.  Co.,  249  Pa.  76;  Stidfole  v.  P.  &  R.  Ry. 
Co.,  261  Pa.  445. 

Opinion  by  Mb.  Justice  Kephabt,  March  10, 1919 : 
This  action  is  the  outcome  of  an  injury  inflicted  by 
the  appellant  upon  John  Minute,  a  boy  nine  years  of  age. 
The  boy  crossed  the  railroad  tracks  to  see  his  father  and, 
in  returning,  he  climbed  on  top  of  a  car  in  a  train,  with 
the  intention  of  passing  over  it  and  continuing  to  his 
home.  Just  as  he  reached  the  end  sill  of  the  car,  a  man 
dressed  as  brakemen  are  usually  dressed,  with  overalls, 
cap,  carrying  a  brake  stick  and  brakeman's  lantern,  ap- 
peared at  the  other  end  of  the  same  car.  The  jury,  from 
the  evidence,  could  have  found  that  the  car  started  to 
move  with  the  boy  on  it,  holding  fast,  when  a  brakeman 
on  the  same  car  ordered  him  from  the  train.  The  brake- 
man  threw  a  piece  of  coal  at  the  lad,  striking  him  on  the 


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96        MINUTE  v.  PHILA.  &  R.  BY.  CO.,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

back,  calling  him  vile  names.  The  scared  boy  was  in  thfe 
act  of  getting  down  when  the  coal  struck  him.  About 
the  same  time,  the  car  gave  a  bump  and  he  fell  on  the 
tracks,  receiving  the  injuries  complained  of. 

It  is  urged  by  appellant  that  there  is  a  variance  be- 
tween the  allegata  and  probata,  the  statement  nowhere 
averring  the  boy  had  been  bumped  from  the  train ;  fur- 
ther that,  if  he  was  injured  by  being  jolted  from  the  car, 
it  was  not  occasioned  by  the  act  of  the  brakeman,  but  by 
the  lawful  movement  of  the  train,  and,  under  such  cir- 
cumstances, defendant  would  not  be  liable. 

The  several  acts  narrated  by  the  boy  were  so  close  to- 
gether that  it  is  impossible  to  determine  how  much  each 
contributed  to  his  injury.  The  boy  was  scared  and 
frightened  by  the  actions  of  the  brakeman,  but  whether 
he  was  injured  by  reason  of  such  conduct,  or  the 
sudden  bump  of  the  car,  is  not  material.  It  was  the  duty 
of  the  appellant,  when  its  employee  observed  a  child  in 
the  position  this  lad  occupied,  not  to  start  the  train  until 
he  had  alighted  therefrom :  Petrowski  v.  Phila.  &  R.  Ry. 
Co.,  263  Pa.  531;  Pollack  v.  Penna.  Railroad  Co., 
210  Pa.  631-633;  Trevethan  v.  Phila.  &  R.  Ry.  Co.,  244 
Pa.  414;  Di  Meglio  v.  Phila.  &  R.  Ry.  Co.,  249  Pa.  319- 
324 ;  and  it  was  the  further  duty  of  the  company  and  its 
employees  not  to  frighten  or  force  the  child  to  alight 
when  the  train  was  moving  or  about  to  start.  The  brake- 
man  could  easily  have  signalled  the  train  to  stop,  and, 
when  stopped,  the  boy  could  have  been  put  off  the  car. 
The  brakeman  knew  the  train  was  about  to  proceed. 
However,  it  was  for  the  jury  to  determine  just  how  the 
accident  took  place.  The  boy  stated  the  train  was  in 
motion  when  he  was  frightened  off  the  car  and  struck 
with  the  piece  of  coal.  If  the  "bump"  of  the  train  was  in 
part  responsible  for  the  boy's  injury,  the  inducing  cause 
was  the  conduct  of  the  brakeman.  The  court  below 
in  its  charge  said :  "If  you  believe  that  John  Minute  was 
injured  solely  as  a  result  of  the  motion  of  the  cars  of  the 
train  following  the  'bump*  of  the  coupling,  and  that  lie 


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MINUTE  v.  PHILA.  &  R.  BY.  CO.,  Appellant.         97 
1919.]  Opinion  of  the  Court. 

was  not  forced  from  the  train  by  any  employee  of  the 
railroad  company,  then  such  conclusion  would  require 
you  to  find  a  verdict  for  the  defendant."  This  instruc- 
tion was  more  favorable  than  the  appellant  was  entitled 
to  receive.  Further,  appellant  cannot  now  complain  of  a 
variance.  No  objection  was  made  to  this  evidence,  no 
motion  was  made  to  strike  it  out,  or  for  a  nonsuit.  No 
assignment  of  error  raises  the  question  of  variance.  It 
will  not  be  considered  on  an  assignment  complaining  of 
a  refusal  to  sustain  a  point  for  binding  direction  or  to 
grant  judgment  n.  o.  v. :  Indian  v.  Delaware,  L.  &  W.  B. 
B.  Co.,  262  Pa.  117;  Shaffer  v.  Bahr,  57  Pa.  Superior  Ct. 
48-53. 

The  evidence  that  the  man  who  chased  the  boy  from  the 
train  was  an  employee  of  the  defendant  engaged  in  the 
discharge  of  his  duty  was  sufficient  to  sustain  an  affirma- 
tive finding  by  the  jury  on  that  question.  He  was  doing 
an  act  ordinarily  done  by  those  forming  part  of  the 
train  crew,  policing  the  train,  and  while  so  acting  was 
doing  what  the  rules  of  the  company  required  him  to  do. 
His  acts  were  within  the  scope  of  his  employment: 
Petrowski  v.  P.  &  B.  By.  Co.,  supra. 

The  court  below  charged  that  before  the  plaintiff  could 
recover  the  jury  must  be  fairly  and  reasonably  satisfied 
that  the  employee  wilfully  and  with  gross  negligence 
caused  the  boy's  injury  under  circumstances  of  manifest 
and  imminent  danger  to  him ;  and,  while  it  was  not  nec- 
essary for  the  plaintiff  to  show  wilfulness  and  gross  negli- 
gence, the  evidence  warranted  a  favorable  finding  for  the 
plaintiff  on  this  instruction.  The  appellee,  however,  has 
good  cause  to  complain  of  this  portion  of  the  charge.  It 
placed  on  his  client  a  burden  not  in  accordance  with  the 
law  as  determined  by  this  court.  It  is  not  essential  to 
recovery  in  a  case  of  this  character  that  there  be  present 
elements  of  recklessness  or  gross  negligence — proof  of 
what  under  ordinary  circumstances  might  be  termed 

Vol.  cclxiv— 7 

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98         MINUTE  v.  PHILA.  &  R.  RY.  CO.,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

"mere  negligence"  is  enough :  Petrowski  v.  Phila.  &  R. 
Ry.  Co.,  and  cases  cited. 

The  judgment  of  the  court  below  is  affirmed  at  the  cost 
of  the  appellant. 


Anderson  v.  Wood,  Appellant. 

Negligence  —  Automobiles  —  Running  down  pedestrian  between 
crossings. 

1.  Vehicles  have  the  right-of-way  on  the  portion  of  the  highway 
get  aside  for  them,  but  at  crossings  all  drivers,  particularly  of 
motor  vehicles,  must  be  highly  vigilant  and  maintain  such  control 
that,  on  the  shortest  possible  notice,  they  can  stop  their  cars  so 
as  to  prevent  danger  to  pedestrians;  on  the  other  hand,  between 
crossings,  drivers  are  not  held  to  the  jsame  high  standard  of  care, 
although,  of  course,  they  must  be  constantly  on  the  lookout  for 
the  safety  of  others. 

2.  A  pedestrian  cannot  be  held  to  be  negligent,  as  a  matter  of 
law,  when  he  attempts  to  cross  a  street  between  the  regular  cross- 
ings, but  in  exercising  this  right,  he  must  have  due  regard  to  the 
conditions  of  the  traffic  before  he  enters  the  cartway.  If  he  de- 
liberately attempts  to  cross  the  street  when  vehicles  are  rapidly 
approaching  close  by,  and  injury  results,  ordinarily,  he  will  be 
chargeable  with  such  carelessness  as  to  prevent  a  recovery  of 
damages ;  but,  having  observed  the  traffic,  and  it  being  far  enough 
away  that  a  pedestrian  using  due  care  would  deem  it  safe  to  go 
across  in  front  of  the  approaching  traffic,  he  is  under  no  fixed  duty 
to  look  back. 

3.  Damages  may  be  recovered  for  the  death  of  a  pedestrian  run 
down  by  an  automobile  where  the  evidence  tends  to  show  that  the 
deceased  started  to  cross  a  street  at  a  point  from  eighty  to  ninety 
feet  from  the  crossing;  that  when  he  was  seen  in  the  cartway  the 
defendant's  automobile  was  more  than  one  hundred  feet  away  from 
him,  approaching  on  the  side  of  the  street  the  deceased  was  then 
crossing ;  that  no  machine  or  vehicle  was  between  the  driver  of  the 
car  and  the  deceased;   and  that  each  had  an  unobstructed  view. 

4.  In  such  a  case  it  was  not  negligence  for  the  deceased  to  at- 
tempt to  cross,  and  that  he  did  not  use  due  care  after  leaving  the 
sidewalk  was  for  defendant  to  establish,  unless  it  appeared  from  the 
plaintiff's  evidence.  It  was  not  necessary  for  the  plaintiff  to  show 
that  the  deceased  looked  from  right  to  left  after  he  left  the  side- 


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ANDERSON  v.  WOOD,  Appellant.  99 

1919.]  Syllabus — Opinion  of  the  Court 

walk.  The  presumption  is  that  he  did  that  which  a  prudent  man 
would  do  under  the  circumstances,  and  that  he  continued  to  do  so 
until  the  accident  took  place. 

5.  Speed  is  not  the  only  element  that  enters  into  the  question  of 
negligence,  and,  regardless  of  it,  a  car  may  be  under  such  imperfect 
control  as  to  amount  to  negligent  operation,  and  evidence  of  it 
would  sustain  the  charge  of  negligence. 

Argued  Jan.  13, 1919.  Appeal,  No.  80,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  2,  Philadelphia 
Co.,  March  T.,  1914,  No.  2297,  on  verdict  for  plaintiff  in 
case  of  Blanche  E.  Anderson,  Administratrix  of  the 
Estate  of  John  A.  Anderson,  deceased,  v.  Thomas  D. 
Wood.  Before  Brown,  C.  J.,  Moschziskbb,  Pbazbr, 
Walling  and  Kbphabt,  JJ.    Affirmed. 

Trespass  to  recover  damages  for  personal  injuries.  Be- 
fore Rogers,  J. 

Verdict  and  judgment  for  plaintiff  for  |3,500.  De- 
fendant appealed. 

Error  assigned  was  in  refusing  judgment  for  defend- 
ant n.  o.  v. 

Francis  B.  Bracken,  with  him  Sheldon  F.  Potter  and 
O.  C.  Norris,  Jr.,  for  appellant,  cited :  Rose  v.  Quaker 
City  Cab  Co.,  69  Pa.  Superior  Ct.  208;  Harman  v.  Penna. 
Traction  Co.,  200  Pa.  311;  Virgilio  v.  Walker,  254  Pa. 
241;  Kauffman  v.  Nelson,  225  Pa.  174;  Creed  v.  Penna. 
R.  R.,  86  Pa.  139. 

Thomas  F.  Gain,  with  him  Frcmcis  Shunk  Brown  and 
Ira  Jewell  Williams,  for  appellee,  cited:  Virgilio  v. 
Walker,  254  Pa.  241;  Kerbaugh  v.  U.  S.  Express  Co.,  58 
Pa.  Superior  Ct.  556. 

Opinion  by  Mr.  Justice  Kbphabt,  March  10, 1919 : 
"Vehicles  have  the  right-of-way  on  the  portion  of  the 
highway  set  aside  for  them,  but  at  crossings  all  drivers, 


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100  ANDERSON  v.  WOOD,  Appellant 

Opinion  of  the  Court.  [264  Pa. 

particularly  of  motor  vehicles,  must  be  highly  vigilant 
and  maintain  such  control  that,  on  the  shortest  possible 
notice,  they  can  stop  their  cars  so  as  to  prevent  danger  to 
pedestrians ;  on  the  other  hand,  between  crossings  driv- 
ers are  not  held  to  the  same  high  standard  of  care,  al- 
though, of  course,  they  must  be  constantly  on  the  look- 
out for  the  safety  of  others."  Where  a  pedestrian  tra- 
verses a  public  highway  between  the  regular  crossings, 
he  is  bound  to  a  high  degree  of  care:  Virgilio  v.  Walker 
&  Brehm,  254  Pa.  241.  "Pedestrians  are  not  restricted 
to  the  use  of  established  street  crossings  when  they  at- 
tempt to  pass  from  one  side  of  the  street  to  the  other. 
They  have  a  right  to  pass  at  whatever  point  they  elect" : 
Watts  v.  Plymouth  Borough,  255  Pa.  185-188.  A  pedes- 
trian cannot  be  held  to  be  negligent  by  the  court,  as  a 
matter  of  law,  when  he  attempts  to  cross  a  street  between 
the  regular  crossings,  but  in  exercising  this  right  he 
must  have  due  regard  to  the  conditions  of  the  traffic  be- 
fore he  enters  the  cartway.  If  he  deliberately  attempts 
to  cross  the  street  when  vehicles  are  rapidly  approach- 
ing close  by,  and  injury  results,  ordinarily,  he  will  be 
chargeable  with  such  carelessness  as  to  prevent  a  recov- 
ery of  damages ;  but,  having  observed  the  traffic,  and  it 
being  far  enough  away  that  a  pedestrian  using  due  care 
would  deem  it  safe  to  go  across  in  front  of  the  approach- 
ing traffic,  he  is  under  no  fixed  duty  to  look  back ;  though 
the  circumstances  may  be  such  that  in  the  exercise  of  due 
care  it  would  become  his  duty  to  so  look  and  it  would  be 
negligence  for  him  to  disregard  it. 

In  the  case  under  consideration,  when  Anderson,  the 
man  who  was  injured,  was  seen  in  the  cartway,  the  appel- 
lant's automobile  was  more  than  one  hundred  feet  away 
from  him,  approaching  on  the  side  of  the  street  Anderson 
was  then  crossing.  No  machine  or  vehicle  was  between 
the  driver  of  the  car  and  the  pedestrian ;  each  had  an  un- 
obstructed view.  It  was  not  negligence  for  Anderson  to 
attempt  to  cross,  and  that  he  did  not  use  due  care  after 
leaving  the  sidewalk  was  for  defendant  to  establish,  un- 


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ANDEBSON  v.  WOOD,  Appellant.  101 

1919.]*  Opinion  of  the  Court 

less  it  appeared  from  appellee's  evidence.  It  was  not 
necessary  for  the  appellee  to  show  that  Anderson,  who  is 
now  dead,  looked  from  right  to  left  after  he  left  the  side- 
walk. She  is  entitled  to  the  presumption  that  deceased 
did  that  which  a  prudent  man  would  do  under  the  cir- 
cumstances and  that  he  continued  to  do  so  until  the  ac- 
cident took  place.  Having,  without  fault  on  his  part, 
committed  himself  to  the  act  of  crossing,  it  became  the 
duty  of  appellant  to  so  control  his  car  as  to  do  no  injury 
to  the  pedestrian,  who  was  on  the  cartway  a  sufficient 
length  of  time  to  be  seen,  the  driver  of  the  car  being  far 
enough  away  to  bring  his  machine  under  control.  This 
the  driver  did  not  do,  and  his  neglect  caused  the  accident. 

While  an  automobile  may  have  a  slightly  superior 
right  of  way  between  crossings,  or  the  measure  of  care 
may  not  be  as  high  as  at  the  regular  street  crossings,  this 
does  not  give  automobile  drivers  a  license  to  run  down  a 
pedestrian  who  may  be  seen  more  than  one  hundred  feet 
away.  When  circumstances  such  as  these  are  presented, 
it  is  the  duty  of  the  driver  to  operate  his  car  with  care 
and  attention  to  the  safety  of  persons  upon  the  highway. 
When  he  sees,  or  with  reasonable  diligence  could  have 
seen,  the  pedestrian  in  time  to  so  operate  his  car  as  to 
avoid  accident  (the  car  not  being  fixed  to  any  particular 
line  of  travel),  it  becomes  his  duty  to  so  act,  and  if  he 
fails  to  perform  this  duty  he  will  be  liable  for  such  dam- 
age as  may  be  occasioned  as  a  result  of  his  failure. 

With  these  statements  of  the  principles  of  law,  a  glance 
at  the  facts  will  show  that  the  action  of  the  court  below 
in  refusing  to  enter  a  judgment  for  the  appellant  was 
proper.  John  A.  Anderson  started  to  cross  Market  street 
at  a  point  between  eighty  or  ninety  feet  from  the  easterly 
line  of  Ninth  street  as  it  intersects  Market  street.  He 
was  first  seen,  after  he  had  left  the  north  curb  of  Market 
street,  about  two  paces  therefrom.  He  was  walking 
across  the  north  cartway  of  Market  street  in  a  diagonal 
or  southwesterly  direction.  He  proceeded  in  this  direc- 
tion until  he  reached  a  point  about  fifteen  or  twenty  feet 


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102  ANDERSON  v.  WOOD,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

east  of  the  easternmost  post  of  the  danger  zone,  which 
extended  from  Ninth  street  along  the  street  car  tracks 
on  Market  street,  and  he  was  about  six  or  seven  feet  from 
the  westbound  track,  when  the  accident  occurred.  There 
were  no  vehicles  to  obstruct  his  view  nor  the  view  of  the 
driver.  It  does  not  appear  that  he  looked  to  the  right  or 
left  after  he  started  to  cross  Market  street,  apparently  to 
go  to  the  safety  zone,  nor  does  the  contrary  appear.  The 
officer  who  saw  the  accident  stated  that,  when  he  first  ob- 
served Anderson,  the  latter  was  looking  in  the  direction 
in  which  he  was  going.  The  distance  to  be  covered  was 
not  more  than  twenty  to  twenty-five  feet  and  there  was 
room  between  the  pedestrian  and  the  curb  for  the  auto- 
mobile to  pass  without  doing  any  injury.  Appellant's 
evidence  as  to  the  happening  of  the  accident  is  in 
clear  contradiction  to  that  of  the  appellee's,  and  if  be- 
lieved by  the  jury,  should  have  relieved  the  former  of  all 
liability ;  but  that  body  has  determined  the  questions  in- 
volved adversely  to  appellant,  and  there  are  no  errors  of 
law  that  justify  us  in  disturbing  the  judgment  on  the 
verdict.  While  there  was  no  direct  evidence  as  to  speed, 
there  was  evidence  on  the  part  of  the  appellant  that  the 
car  did  not  change  its  speed  from  the  time  it  was  seen 
over  one  hundred  and  ninety  feet  from  the  eastern  line 
of  Ninth  street,  till  it  bore  down  on  Anderson,  striking 
and  carrying  him  some  few  feet;  this  was  for  the  jury. 
Speed  is  not  the  only  element  that  enters  into  the  ques- 
tion of  negligence,  and,  regardless  of  it,  a  car  may  be 
under  such  imperfect  control  as  to  amount  to  negligent 
operation,  and  evidence  of  it  would  sustain  the  charge  of 
negligence. 

The  judgment  of  the  court  below  is  affirmed  at  the 
cost  of  the  appellant. 


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REILLY  v.  REILLY,  Appellant.  103 

1919.]  Syllabus — Opinion  of  the  Court. 

Reilly  v.  Reilly,  Appellant. 

Negligence — Master  and  servant — Safe  place  to  work — Scaffold- 
ing— Insecure  guard  rail. 

1.  Where  the  superintendent  of  a  building  contractor,  erects  a 
scaffold  upon  which  the  workmen  must  stand  at  their  work, 
and  attaches  to  the  scaffold  a  handrail  in  an  insecure  manner,  but 
in  such  a  way  that  the  insecure  construction  is  not  obvious,  a 
workman,  who  without  knowledge  of  the  defect,  grasps  the  rail 
when  the  scaffold  lurches  from  some  unknown  cause,  and  is  thrown 
by  the  rail  giving  way,  may  recover  damages  from  his  employer  for 
injuries  which  he  sustained  by  the  fall. 

2.  In  such  a  case  the  duty  devolved  upon  the  master  to  furnish 
a  reasonably  safe  place  to  work,  and  the  superintendent  merely 
took  the  master's  place  in  the  performance  of  the  duty. 

3.  Where  a  scaffold  is  unsafe  because  of  one  or  more  of  these 
reasons,  it  is  immaterial  whether  it  is  unsafe  through  faulty  or  un- 
suitable material  or  in  its  construction. 

Argued  Jan.  16, 1919.  Appeal,  No.  92,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  1,  Philadelphia 
Co.,  June  T.,  1915,  No.  2504,  on  verdict  for  plaintiff  in 
case  of  Matthew  Reilly  y.  Thomas  Reilly.  Before  Brown, 
C.  J.,  Fbazbb,  Walling,  Simpson  and  Kbphabt,  JJ.  Af- 
firmed. 

Trespass  for  personal  injuries.    Before  Shoemaker,  J. 
Verdict  and  judgment  for  plaintiff  for  f  1,750.     De- 
fendant appealed. 

Error  assigned  was  in  refusing  defendant's  motion  for 
judgment  n.  o.  v. 

Maurice  W.  Sloan,  for  appellant. 

Otto  Kraus,  Jr.,  of  Dolan  &  Kraus,  for  appellee. 

Opinion  by  Mr.  Justice  Kbphart,  March  10, 1919: 
Plaintiff,  who  was  employed  as  a  foreman  in  the  erec- 
tion of  St.  Mary's  College,  went  on  a  swinging  scaffold 
to  inspect  the  work  of  two  bricklayers.    He  had  been 


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104  REILLY  v.  REILLY,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

talking  to  the  workmen  for  a  minute  or  so  when  the  scaf- 
fold lurched,  or  swayed,  from  an  unknown  cause,  and,  to 
prevent  falling,  he  grasped  the  guard  rail,  when  it 
dropped  with  him  to  the  ground,  the  center  upright  post 
tearing  loose  from  the  scaffold. 

The  trial  judge  submitted  to  the  jury  the  question  of 
the  defendant's  negligence  in  not  providing  a  safe  place 
to  work,  and  the  important  matter  for  their  consider- 
ation was  the  manner  of  construction  of  the  guard  rail. 
The  scaffold  was  about  thirty  feet  in  length,  made  from 
a  ladder  with  a  board  laid  across  the  rungs,  the  width 
thereof.  On  the  side  of  the  ladder  away  from  the  wall 
was  attached  a  guard  rail,  held  in  place  by  three  up- 
rights, two  nailed  at  either  end  of  the  ladder  and  one  in 
the  center.  Two  horizontal  boards,  about  three  to  three 
and  one-half  feet  above  the  level  of  the  scaffold,  consti- 
tuted the  handrail,  they  were  nailed  to  these  uprights, 
each  extending  from  the  center  one  to  the  one  at  each  end 
of  the  ladder.  The  scaffold  was  supported  by  ropes  run- 
ning from  its  end  to  the  roof ;  it  was  not  tied  to  the  wall. 
The  purpose  of  the  guard  rail  was  to  keep  men  from  fall- 
ing when  the  scaffold  swayed  (bricklayers  being  obliged 
to  stand  in  the  performance  of  their  work),  and  its 
strength  for  this  purpose  depended  on  the  manner  of  its 
attachment  to  the  ladder.  The  uprights  were  nailed 
against  an  oval  or  round  side  of  the  ladder.  There  were 
no  other  fastenings  or  braces  to  keep  the  guard  rail  firm 
when  pressure  was  applied  against  it.  Neither  the  ap- 
pellee nor  the  workmen  under  him  assisted  in  the  erection 
of  the  scaffold ;  the  superintendent  perf  ormed  this  work. 
No  inspection  of  it  was  made  by  the  appellee  and  there 
was  nothing  from  a  general  observation  of  the  scaffold  to 
indicate  that  the  guard  rail  was  not  properly  secured  to 
the  ladder. 

The  nondelegable  duty  devolved  on  the  master  to  fur- 
nish a  reasonably  safe  place  to  work,  and  the  superin- 
tendent merely  took  the  master's  place  in  the  perform- 
ance of  this  duty.    The  servant  had  a  right  to  expect  that 

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RfilLLY  v.  REILLY,  Appellant.  105 

1919.]  Opinion  of  the  Court. 

it  would  be  reasonably  attended  to,  and  though  he  would 
be  chargeable  with  what  ordinary  observation  might  re- 
veal to  him,  he  was  under  no  duty  to  conduct  a  minute 
examination  of  the  place  where  he  was  to  work.  As  the 
uprights  extended  below  the  ladder,  he  might  reasonably 
have  supposed  the  necessary  braces  were  attached 
from  them  to  the  ladder  underneath,  so  as  to  make  it 
firm.  It  not  appearing  that  he  had  any  knowledge  as  to 
the  probable  strength  of  the  guard  rail,  by  being  nailed 
to  an  oval  surface,  relying  on  the  master's  superior 
knowledge,  he  could  very  properly  have  accepted  that 
work  as  being  proper  and  safe.  As  we  have  said,  the 
strength  of  the  guard  rail  depended  entirely  on  the  firm- 
ness with  which  it  was  attached  to  the  ladder.  If  it  were 
weak  at  this  point,  it  did  not  matter  how  well  or  with 
what  material  the  other  parts  were  constructed,  the 
guard  rail  would  not  give  the  protection  intended. 
Whether  the  master  performed  this  service  was  a  ques- 
tion for  the  jury.  A  scaffold  is  a  place  to  work ;  in  the 
erection  of  that  scaffold  the  employer  provided  a  place  to 
work ;  if  he  failed  to  make  it  reasonably  safe,  and  the  in- 
jury resulted  to  plaintiff,  without  fault  on  his  part,  the 
master  is  responsible.  It  is  immaterial  whether  the  scaf- 
fold was  unsafe  through  faulty  or  unsuitable  material  or 
in  its  construction :  Swartz  v.  Bergendahl-Knight  Com- 
pany, 259  Pa.  421-428. 

The  judgment  of  the  court  below  is  affirmed. 


Hatcher  v.  Hatcher,  Appellant 

Trusts  and  trustees — Trustee  ex  maleficio — Fraud — Conveyance 
ty  mother  to  son— -Act  of  April  22,  1856,  P.  L.  58S— Statute  of 
frauds — Verbal  promise  as  to  real  estate. 

1.  Where  a  mother,  to  protect  herself  from  liabilities  which  she 
might  incur  for  a  son,  executes  a  deed  of  real  estate  to  another 
son,  under  an  oral  agreement  that  he  would  reconvey  the  property 
to  her  on  demand,  and  the  grantee  admits  that  the  understanding 
between  him  and  his  mother  at  the  time  she  executed  the  deed, 

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106  HATCHER  v.  HATCHER,  Appellant. 

Syllabus — Arguments.  [264  Pa. 

was  that  he  should  hold  the  title  for  her  protection,  and  not  as  the 
absolute  owner  of  the  property,  the  grantee  who  refuses  to  recon- 
vey  holds  the  premises  as  trustee  ex  maleficio  for  his  mother  under 
the  Act  of  April  22,  1856,  P.  L.  633,  and  after  the  death  of  his 
mother  he  must  convey  the  property  to  her  devisees. 

2.  In  such  a  case  where  it  appears  that  the  mother  never  sur- 
rendered possession  of  the  property,  but  continued  to  act  as  owner 
of  it,  until  her  death,  and  her  executrix  after  her  death  did  the 
same,  a  verbal  promise  made  to  the  grantee  by  his  mother,  that  he 
might  retain  the  property  as  his  own,  is  within  the  statute  of 
*  frauds,  and  void. 

Argued  Jan.  17, 1919.  Appeal,  No.  128,  Jan.  T.,  1919, 
by  defendant,  from  decree  of  C.  P.  No.  1,  Philadelphia 
Co.,  June  T.,  1917,  No.  5216,  on  bill  in  equity  in  case  of 
Mabel  B.  Hatcher,  Florence  D.  Kreibel  (nee  Hatcher) 
by  her  next  friend,  Mabel  B.  Hatcher,  and  Clifford 
Hatcher  by  his  next  friend,  Mabel  B.  Hatcher,  v.  Charles 
W.  Hatcher.  Before  Brown,  C.  J.,  Mosohziskbr,  Fba- 
zbr,  Walling  and  Kbphabt,  J  J.    Affirmed. 

Bill  in  equity  for  a  conveyance  of  land.    Before  Shoe- 
maker, J. 
The  court  below  entered  a  decree  for  reconveyance. 

Errors  assigned  were  various  findings  of  fact  and  con* 
elusions  of  law. 

George  A.  Welsh,  for  appellant. — The  refusal  to 
convey  was  a  mere  breach  of  the  parol  agreement  which 
has  been  uniformly  held  not  to  create  a  trust  within 
the  exception  of  the  statute  of  frauds :  Kistler's  App.,  73 
Pa.  393;  Danzeisen's  App.,  73  Pa.  65;  O'Hara  v.  Dil- 
worth,  72  Pa.  397;  Kimmel  v.  Smith,  117  Pa.  183; 
Braun  v.  First  German  E.  L.  Church,  198  Pa.  152; 
Simon's  Est.,  20  Pa.  Superior  Ct.  450;  Grove  v.  Kase, 
195  Pa.  325. 

There  must  be  proof  of  fraud  at  the  time  the  deed  was 
executed ;  of  fraud  inducing  or  influencing  the  grantor 
to  part  with  his  title — otherwise  such  a  trust  cannot 
arise:  Salter  v.  Bird,  103  Pa.  436;  Barry  v.  Hill,  166  Pa. 


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HATCHER  v.  HATCHER,  Appellant.  107 

1919.]  Arguments — Opinion  of  the  Court. 

344;  Martin  v.  Baird,  175  Pa.  540;  McCloskey  v.  Mc- 
Closkey,  205  Pa.  491;  Turney  v.  McKown,  242  Pa.  565; 
Jourdan  v.  Andrews,  258  Pa.  347. 
A  trust  created  by  parol  may  be  discharged  by  parol. 

Abraham  Werniek,  of  Evans,  Foster  &  Werniek,  for 
appellees. — There  can  be  no  doubt  about  the  law  that 
where  one  procures  a  title  which  he  could  not  have  ob- 
tained except  by  a  confidence  reposed  in  him  and  abuses 
the  confidence,  he  becomes  a  trustee  ex  maleficio:  Se- 
christ's  App.,  66  Pa.  237;  Goodwin  v.  McMinn,  193  Pa. 
646;  Sulzer  v.  Conner,  41  Pa.  Superior  Ct.  317;  Blick  v. 
Cockins,  234  Pa.  261;  McDonald  v.  McAndrew,  40  Pa. 
Superior  Ct.  146. 

Where  title  is  claimed  by  reason  of  an  oral  conveyance 
of  land,  it  must  be  shown  that  the  defendant  took  pos- 
session from  the  vendor :  Wright  v.  Nulton,  219  Pa.  253 ; 
Lincoln  v.  Wakefield,  237  Pa.  97;  Lincoln  v.  Africa,  228 
Pa.  546. 

Opinion  by  Mr.  Chief  Justice  Brown,  March  10, 
1919: 

On  December  2,  1914,  Mary  M.  Hatcher  executed  a 
deed  to  her  son,  Charles  W.  Hatcher,  for  certain  real 
estate  situated  in  the  City  of  Philadelphia.  She  died  a 
year  later,  and  in  her  will,  duly  admitted  to  probate,  her 
son,  Clifford,  and  her  two  daughters,  Mabel  B.  and  Flor- 
ence D.,  now  Mrs.  Kreibel,  were  named  as  residuary  lega- 
tees and  devisees.  Upon  the  refusal  of  their  brother, 
Charles,  to  convey  to  them  the  real  estate  for  which  he 
holds  the  deed  from  their  mother,  this  proceeding  was 
instituted  by  them  to  compel  him  to  do  so,  on  the  ground 
that  the  equitable  title  remained  in  her  at  the  time  of  her 
death,  and  passed  to  them  as  her  residuary  devisees.  The 
averment  in  their  bill  asking  for  a  decree  that  the  de- 
fendant be  ordered  to  convey  the  premises  to  them,  is 
that  the  said  Mary  M.  Hatcher,  being  seized  of  the  prem- 
ises in  question,  "executed  a  deed  of  conveyance  to  her 


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108  HATCHER  v.  HATCHEE,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

son,  Charles  W.  Hatcher,  on  the  second  day  of  December, 
1914;  that  said  conveyance  was  without  consideration 
and  was  made  and  executed  by  the  said  Mary  M.  Hatch- 
er under  the  express  agreement  and  promise  by  the  said 
Charles  W.  Hatcher,  that  he  would  reconvey  to  her  the 
aforesaid  premises  at  any  time  that  she  should  make  de- 
mand therefor,  it  having  been  expressly  agreed  between 
said  Mary  M.  Hatcher  and  the  said  Charles  W.  Hatcher, 
that  the  said  real  estate  was  the  property  of  the  said 
Mary  M.  Hatcher  and  that  the  legal  title  should  be  in 
the  said  Charles  W.  Hatcher's  name,  until  she  should  de- 
mand reconveyance  therefor,  and  that  she,  the  said  Mary 
M.  Hatcher,  was  the  real  owner  and  the  equitable  title 
therefor  should  be  and  remain  in  her."  This  averment, 
except  as  to  the  execution  of  the  deed  by  the  complain- 
ants' mother,  was  specifically  denied  in  defendant's  an- 
swer. After  hearing  on  bill  and  answer  and  testimony 
taken,  the  court  below  decreed  that  "the  defendant, 
Charles  W.  Hatcher,  holds  the  title  to  the  premises,  3538 
North  Broad  street,  Philadelphia,  in  trust  for  the  plain- 
tiffs, Mabel  B.  Hatcher,  Florence  D.  Kreibel  and  Clifford 
Hatcher,"  and  he  was  "ordered  and  directed  within 
thirty  days  from  the  service  of  the  decree  by  good  and 
sufficient  deed  to  convey  the  said  premises"  to  the  plain- 
tiffs in  fee  simple. 

It  seems  that  Mrs.  Hatcher  conveyed  the  real  estate  to 
her  son,  Charles,  for  what  she  regarded  as  a  measure  of 
self-protection.  She  had  incurred  certain  liabilities  for 
another  son,  and  felt  that  she  might  avoid  incurring  any 
more  by  making  the  conveyance  to  the  son,  Charles.  It 
is  to  be  fairly  found  from  the  testimony  that  this  was  the 
reason  the  conveyance  was  made. 

The  decree  of  the  court  below  followed  the  finding 
"that  the  said  Mary  M.  Hatcher,  being  so  seized  [of  the 
premises  in  question]  executed  a  deed  of  conveyance  to 
her  son,  Charles  W.  Hatcher,  on  the  second  day  of  De- 
cember, 1914;  that  said  conveyance  was  without  con- 
sideration and  was  made  and  executed  by  the  said  Mary 


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HATCHER  v.  HATCHER,  Appellant.  109 

1919.]  Opinion  of  the  Court 

M.  Hatcher  under  the  express  agreement  and  promise  by 
the  said  Charles  W.  Hatcher  that  he  would  reconvey  to 
her  the  aforesaid  premises  at  any  time  that  she  would 
make  demand  therefor,  which  agreement  and  promise 
were  inducements  for  the  conveyance  and  without  which 
the  conveyance  would  not  have  been  made  to  Charles  by 
his  mother,  it  having  been  expressly  agreed  by  the  said 
Charles  W.  Hatcher  that  the  said  real  estate  was  the 
property  of  the  said  Mary  M.  Hatcher  and  that  the  legal 
title  should  be  in  the  said  Charles  W.  Hatcher's  name 
until  she  would  demand  reconveyance  therefor,  and  that 
the  said  Mary  M.  Hatcher  was  the  real  owner  and  the 
equitable  title  therefor  should  be  and  remain  in  her." 
This  specific  finding  has  not  been  assigned  as  error.  The 
legal  conclusion  which  followed  it  was,  "the  said  Charles 
W.  Hatcher  holds  the  premises  3538  North  Broad  street 
as  trustee  ex  maleficio  for  the  estate  of  Mary  M.  Hatcher, 
deceased."  The  contention  of  the  appellant  is  that,  even 
under  the  facts  found,  he  cannot  be  regarded  as  a  trustee 
ex  maleficio,  within  the  proviso  of  Section  4  of  the  Act  of 
April  22,  1856,  P.  L.  533,  "that  where  any  conveyance 
shall  be  made  of  any  lands  or  tenements  by  which  a  trust 
or  confidence  shall  or  may  arise  or  result  by  implication  or 
construction  of  law,  or  be  transferred  or  extinguished  by 
act  or  operation  of  law,  then  and  in  every  such  case  such 
trust  or  confidence  shall  be  of  the  like  force  and  effect  as 
if  this  act  had  not  been  passed." 

The  title  procured  by  the  appellant  from  his  mother 
undoubtedly  passed  to  him  by  reason  of  her  confidence  in 
him,  and,  upon  his  abuse  of  that  confidence,  in  refusing  to 
reconvey,  the  property,  as  part  of  her  estate  at  the  time  of 
her  death,  passing  to  the  appellees,  he  converted  himself 
into  a  trustee  ex  maleficio.  "The  statute  which  was  in- 
tended to  prevent  frauds  turns  against  him  as  the  per- 
petrator rtP  a  fraud" :  Sechrist's  App.,  66  Pa.  237.  The 
broken  agreement  or  promise  of  the  appellant  was  made 
at  the  time  his  mother  executed  the  deed  to  him  and  was 
the  inducement  to  its  execution;  and  if  he  could  now 


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110  HATCHER  v.  HATCHER,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

profit  from  his  bad  faith,  the  Act  of  1856,  which  is  in- 
tended to  prevent  fraud,  would  itself  become  the  instru- 
ment for  the  perpetration  of  it.  Under  the  proviso  in 
that  act,  the  unkept  promise  of  the  appellant  made  him 
a  trustee  ex  maleficio:  McCloskey  v.  McCloskey,  205  Pa. 
491.  This  need  not  be  further  discussed,  for  the  defend- 
ant admitted  in  his  own  testimony  that  the  understand- 
ing between  him  and  his  mother  at  the  time  she  executed 
the  deed  was  that  he  should  hold  the  title  for  her  protec- 
tion, and  not  as  the  absolute  owner  of  the  property.  The 
deed  cannot  stand  against  the  appellees,  the  successors 
in  title  to  their  mother,  for  their  brother  has  himself  over- 
thrown it :  Morrish  v.  Morrish,  262  Pa.  192. 

The  court  below  found  that  in  August,  1915,  appel- 
lant's mother  verbally  assented  to  his  retention  of  the 
property  as  his  own,  and  this  finding  is  urged  as  a  reason 
for  the  reversal  of  the  decree.  It  was  coupled  with  the 
additional  finding  that  "the  evidence  as  to  what  the  con- 
sideration was  for  the  release  of  the  trust  under  which 
Charles  held  the  property  is  vague  and  far  from  being 
clear,  precise  and  indubitable,  and  no  change  of  posses- 
sion of  the  real  estate  was  made."  The  defendant  never 
had  possession  of  the  premises  in  question ;  his  mother, 
during  her  lifetime,  collected  the  rents,  made  the  repairs 
and  paid  the  taxes,  and  after  her  death,  her  executrix  did 
the  same.  At  no  time,  either  before  or  after  her  death, 
did  the  appellant  ever  ask  for  an  accounting  of  the  rents. 
This  being  the  situation,  the  verbal  agreement  by  the 
mother  that  her  equitable  interest  in  the  premises  should 
merge  with  the  legal  title  in  her  son,  is  within  the  statute 
of  frauds,  for  "it  has  been  uniformly  held  that  an  equi- 
table interest  is  an  interest  in  land  which  comes  within 
the  words  and  spirit  of  the  Statute  of  Frauds Con- 
tracts for  the  equitable  stand  now  beyond  a  doubt  upon 
the  same  footing  as  contracts  for  the  legal  interests" : 
Meason  v.  Kaine,  63  Pa.  335, 339. 

The  assignments  of  error  are  all  overruled  and  the  de- 
cree is  affirmed,  at  appellant's  costs. 


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CURRAN,  Appellant,  v.  PHILADELPHIA.        Ill 
1919.]  Syllabus. 

Curran,  Appellant,  v.  Philadelphia. 

Municipalities — Municipal  contract* — Street  cleaning— Arbitra- 
tion clause — Repugnant  provisions — Mutuality. 

1.  Where  a  municipal  contract  for  street  cleaning  shows  on  its 
face  that  it  was  clearly  intended  to  be  an  arbitration  agreement, 
and  the  city  sets  up  an  award  of  the  director  of  public  works, 
the  arbitrator,  as  a  defense  in  a  suit  on  the  contract,  a  provision 
at  the  conclusion  of  the  written  contract  that  the  city  shall  not 
be  bound  by  the  certificate  of  any  officer  of  the  city,  will  not  be 
considered,  and  the  contract  will  be  read  as  though  the  clause 
were  absent.  Inasmuch  as  the  clause  is  repugnant  to  the  para- 
mount intention  of  the  parties  as  to  arbitration,  it  must  give  way. 

2.  In  such  a  case,  were  the  city  itself  to  invoke  the  repugnant 
clause,  as  a  defense,  to  an  award,  it  would  not  be  sustained,  hence 
the  contract  may  and  should  be  read  as  though  the  clause  were 
absent,  and,  when  so  viewed,  the  lack  of  mutuality  in  the  sub- 
mission is  only  apparent,  not  real. 

Municipalities — Municipal  contracts — Liquidated  damages— 
Penalties — Contracts — Arbitration. 

3.  Where  a  municipal  contract  for  street  cleaning  provides 
that  the  "engineer"  is  to  determine  all  questions  in  relation  to  the 
work,  and  the  ''Director  of  Public  Works"  shall  deduct  certain 
specified  amounts  for  defaults,  such  as  neglect  to  uniform  street 
cleaners,  failure  to  operate  machines  strictly  in  accord  with  the 
specifications,  absence  of  employees,  and  such  like  provisions,  and 
as  to  these  matters  the  decision  of  the  director  shall  be  final,  such 
deductions  by  the  director  are  liquidated  damages,  and  not  in  the 
nature  of  penalties. 

4.  Liquidated  damages  may  be  provided  for  in  every  instance 
where,  from  the  character  of  the  work  to  be  performed,  it  is  mani- 
festly impossible  or  most  difficult,  to  measure  the  damages,  par- 
ticularly for  defined  anticipated  defaults,  which  may  be  classified 
as  possibly  harmful. 

Municipalities — Municipal  contracts — Street  cleaning — Arbitra- 
tion— Two  arbitration  clauses — Ex  parte  hearing — Waiver — Estop- 
pel. 

5.  When  two  arbitration  provisions  are  inserted  in  an  agreement, 
the  first  being  so  generally  comprehensive  in  its  scope  as  to  ap- 
parently take  in  disputes  of  every  nature,  while  the  other  is  limited 
to  certain  defined  questions,  they  may  both  stand;    and  in  con- 


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112       PTJBRAN,  Appellant,  v.  PHILADELPHIA, 

Syllabus — Assignment  of  Error.  [264  Pa. 

struing  such  a  contract,  matters  specified  in  the  second  clause,  as 
particularly  given  to  the  referee  there  designated,  will  be  excepted 
from  the  wider  jurisdiction  previously  conferred. 

6.  Where  a  municipal  contract  for  street  cleaning  provides  that 
the  "engineer"  shall  determine  all  questions  in  relation  to  the 
work  and  the  prosecution  thereof,  and  the  "Director  of  Public 
Works"  shall  pass  upon  certain  deductions  for  defaults  specified, 
the  director,  and  not  the  engineer,  is  the  person  to  pass  upon  the 
question  whether  the  contractor  had  made  the  particular  defaults, 
and  if  he  had,  to  deduct  the  stipulated  damages. 

7.  In  such  a  case  where  the  contract  contains  no  provision  for 
ex  parte  hearings  before  the  director,  and  the  contractor,  after 
an  award  against  him  without  a  hearing,  brings  a  suit  on  such 
contract  against  the  city,  and  there  is  nothing  to  show  any  im- 
plied assent  on  the  part  of  the  contractor  to  an  ex  parte  hearing, 
or  that  there  was  any  waiver  or  estoppel  on  his  part,  which  pre- 
vented him  from  questioning  the  investigation,  the  fact  that  he 
failed  to  demand  a  hearing  prior  to  instituting  the  action,  will 
not  prevent  him,  after  his  suit  has  been  dismissed  as  premature, 
from  demanding  a  hearing. 

8.  In  such  a  case  the  virtual  denial  of  the  right  to  a  hearing 
by  the  action  of  the  director,  avoids  the  award. 

9.  A  provision  in  the  contract  that  the  work  shall  be  done  to  the 
satisfaction  of  the  director,  has  no  controlling  significance  inas- 
much as  the  arbitration  clauses  govern.  The  director  is  an  arbi- 
trator, and  must  proceed  accordingly. 

Argued  Jan.  21, 1919.  Appeal,  No.  135,  Jan.  T.,  1919, 
by  plaintiff,  from  judgment  of  0.  P.  No.  2,  Philadelphia 
Co.,  March  T.,  1916,  No.  2704,  on  verdict  for  defendant  in 
case  of  Frank  Curran  v.  City  of  Philadelphia.  Before 
Stewart,  Moschziskbb,  Frazbb,  Walling  and  Simpson, 
JJ.    Appeal  dismissed,  without  prejudice,  etc. 

Assumpsit  on  a  municipal  contract  for  cleaning 
streets.    Before  Wbssbl,  J. 

Verdict  and  judgment  for  defendant.  Plaintiff  ap- 
pealed. 

Error  assigned,  among  others,  was  in  directing  a  ver- 
dict for  defendant. 


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CUEEAN,  Appellant,  v.  PHILADELPHIA,  113 
1919.]  Arguments — Opinion  of  the  Court. 

Henry  A.  Hoefler  and  J.  Washington  Logue,  with  them 
George  8.  Russell,  for  appellant. — The  director  did  not 
give  the  contractor  any  hearing  or  opportunity  to  present 
his  side  of  the  matter.  This  was  error :  Pittsburgh,  etc., 
Co.  v.  Sharp,  190  Pa.  256;  Crosby  v.  Amer-Slovak  Hall 
Assn.,  61  Pa.  Superior  Ct.  199. 

A  sum  fixed  as  security  for  the  performance  of  a  con- 
tract containing  a  number  of  stipulations  of  widely  dif- 
ferent importance,  breaches  of  some  of  which  are  capable 
of  accurate  valuation,  for  any  of  which  the  stipulated 
*um  is  an  excessive  compensation,  is  a  penalty :  Stover 
v.  Spielman,  1  Pa.  Superior  Ct.  526. 

Hugh  McAnany,  Jr.,  Assistant  City  Solicitor,  with 
him  Michael  J.  McEnery,  Assistant  City  Solicitor,  and 
John  P.  Connelly,  City  Solicitor,  for  appellee. — When 
the  parties  to  a  contract  agree  to  submit  the  determi- 
nation of  a  question  to  a  referee  whose  decision  shall  be 
conclusive  and  final,  neither  party  is  at  liberty  to  disre- 
gard the  decision  in  the  absence  of  fraud  participated  in 
by  the  other:  Bowman  v.  Stewart,  165  Pa.  394;  Payne 
v.  Eoberts,  214  Pa.  568 ;  Kann  v.  Bennett,  234  Pa.  12. 

Opinion  by  Mb.  Justice  Moschziskbr,  March  10, 
1919: 

Frank  Curran  sought  to  recover  from  the  City  of 
Philadelphia  a  balance  alleged  to  be  due  under  a  con- 
tract for  cleaning  certain  of  its  streets.  The  agreement 
in  question  provides,  by  section  16  of  the  specifications, 
that  the  "engineer"  is  to  "determine  all  questions  in  re- 
lation to  the  work  and  the  prosecution  thereof,"  and  "de- 
cide every  question  which  may  arise  relative  to  the  per- 
formance of  the  service  covered  by  this  contract" ;  fur- 
ther, that  his  "decision  shall  be  final  and  conclusive." 
Section  76  stipulates  the  "Director  of  Public  Works" 
shall  at  stated  periods  determine  what,  if  any,  abatement 
shall  be  made  from  moneys  due  the  contractor,  as  "liqui- 
dated damages"  for  various  specified  defaults,  not  af- 
Voh.  cclxiv— 8 

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114        CURRAN,  Appellant,  v.  PHILADELPHIA. 

Opinion  of  the  Court  [264  Pa. 

fecting  the  amount  of  work  done  but  the  method  of  ac- 
complishment; and,  in  this  connection,  the  exact  dam- 
age to  be  deducted,  for  each  of  a  listed  number  of  de- 
linquencies, is  named,  it  being  provided  that  the  decisions 
of  the  director  as  to  such  deductions  "shall  be  final  and 
conclusive."  The  work  is  to  be  performed  to  the  "entire 
satisfaction"  of  the  director  "or  his  duly  authorized 
agent  or  agents" ;  and  the  specifications  say  that,  when- 
ever the  term  "director"  is  used,  it  shall  mean  the  di- 
rector of  public  works,  "or  his  authorized  representa- 
tives." Finally,  the  last  paragraph  in  the  contract 
states:  "It  is  further  expressly  understood  and  agreed 

that  nothing  contained  in  this  contract,  or  in  the 

specifications  hereto  attached,  shall  be  taken  or  con- 
strued to  preclude  the  [city]  from  contesting  the  esti- 
mates or  certificates  of  any  officer  of  the  city,  or  the  claim 
of  the  [contractor]  under  this  contract,  or  under  such 
estimate  or  certificate;  but  the  [city]  shall  be  at  full 
liberty  to  take  every  legal  defense  to  the  character,  quali- 
ty and  quantity  of  the  said  work  and  materials,  and  to 
the  time  and  manner  in  which  the  same  shall  be  furnished 
and  done,  notwithstanding  the  certificates  of  approval  of 
any  officer  of  the  said  city." 

At  trial,  plaintiff  proved  that  f  1,566  had  been  deducted 
by  the  director  from  a  stated  settlement;  that,  of  this 
sum,  only  f  10  represented  unperformed  work,  the  bal- 
ance, constituting  the  amount  in  controversy,  being 
withheld  for  alleged  defaults  in  the  time  and  manner  of 
performance,  i.  e.,  neglect  to  uniform  street  cleaners,  fail- 
ure to  operate  certain  machines  strictly  in  accord  with 
the  specifications,  absence  of  employees,  and  such  like 
omissions. 

Binding  instructions  were  given  for  defendant  on  the 
ground  that,  under  the  contract,  the  decision  of  the  di- 
rector was  final  and  conclusive;  a  verdict  was  entered 
accordingly,  judgment  followed,  and  plaintiff  has  ap- 
pealed. 


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CURRAN,  Appellant,  v.  PHILADELPHIA.  115 
1919.]  Opinion  of  the  Court 

Appellant  first  contends  that,  since  the  agreement 
makes  the  decisions  of  the  referees  named  therein  bind- 
ing upon  the  contractor  but  not  upon  the  city,  the  sub- 
mission to  arbitration  lacks  mutuality  and,  therefore, 
obligates  no  one;  and,  on  this  theory,  he  urges  that  the 
award  of  the  director  cannot  bar  his  right  of  recovery 
in  the  present  suit.  The  point  is  well  made  if  this  clause 
of  the  contract  has  any  controlling  effect;  but,  as  we 
shall  show,  it  has  not. 

The  provision  in  question  must  be  considered  in  con- 
nection with  the  arbitration  clauses  of  the  agreement, 
and  with  the  thought  in  mind  that  submissions  are  al- 
ways construed  so  as  to  carry  out  the  prime  intention  of 
the  parties  (Graham  v.  Graham,  9  Pa.  254, 256-257;  Rog- 
ers v.  Playford,  12  Pa.  181, 185 ;  Kennedy  v.  Poor  et  al., 
151  Pa.  472,  474),  every  reasonable  intendment  being 
made  in  favor  of  their  validity :  Finch  v.  Lamberton,  02 
Pa.  370,  373 ;  Painter  v.  Kistler,  59  Pa.  331,  333 ;  Robin- 
son v.  Bickley,  30  Pa.  384,  389-390;  Bemus  v.  Clark,  29 
Pa.  251,  253-254;  Buckley  v.  Ellmaker,  13  S.  &  R.  71, 
76;  Gonsales  v.  Deavens,  2  Yeates  539,  541;  Byrd  v. 
Odem,  9  Ala.  755,  766;  Joy  v.  Simpson,  2  N.  H.  179, 181. 

The  clause  under  discussion  is  repugnant  to  the  arbi- 
tration provisions  of  the  contract  and,  if  operative, 
avoids  the  latter,  on  the  principle  that  submissions  which 
are  not  binding  on  both  parties  obligate  neither :  Christ- 
man  v.  Moran,  9  Pa.  487;  Keiser  v.  Berks  Co.,  253  Pa. 
167, 169;  Yeamans  v.  Yeamans,  99  Mass.  585;  Onion  v. 
Robinson,  15  Vt.  510.  What  is  the  effect  of  this  situ- 
ation? 

The  paramount  purpose  of  the  contracting  parties 
must  prevail.  The  city,  being  the  one  having  the  right  to 
assert  the  repugnant  clause,  treats  the  writing  as  an 
arbitration  agreement ;  since  the  intent  it  shall  be  such 
is  too  plain  to  be  disregarded,  the  purpose  of  the  parties 
in  that  respect  is  to  be  adhered  to,  if  possible  (McManus 
v.  McCulloch,  6  Watts  357,  360;  Somerset  Boro.  v.  Ott, 
207  Pa.  539,  542;  Bubb  v.  Parker,  etc.,  Oil  Co.,  252  Pa. 

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116        CURRAN,  Appellant,  v.  PHILADELPHIA. 

Opinion  of  the  Court.  [264  Pa. 

26,  29;  13  Corpus  Juris,  sec.  482,  p.  521  et  seq.),  and, 
in  order  to  accomplish  this,  the  provision  that  the  city 
shall  not  be  bound  by  the  award  of  the  arbitrators  may, 
and  should,  be  held  inoperative;  for,  as  previously  said,  it 
is  in  conflict  with  the  two  arbitration  clauses,  which  un- 
doubtedly represent  the  predominant  intent  of  both  par- 
ties to  the  contract:  Morrill,  etc.,  Construction  Co.  v. 
Boston,  186  Mass.  217,  220;  Smith  v.  Davenport,  34 
Me.  520,  528.  All  of  which  brings  us  to  this  conclusion : 
Were  the  city  itself  to  invoke  the  repugnant  clause,  as  a 
defense  to  an  award,  it  would  not  be  sustained ;  hence  the 
contract  may,  and  should,  be  read  as  though  that  clause 
were  absent;  and,  when  so  viewed,  the  lack  of  mutuality 
in  the  submission  is  only  apparent,  not  real.  Appellant's 
first  contention  is  dismissed. 

The  conclusion  just  stated  leaves  the  arbitration  and 
other  features  of  the  agreement  standing;  and  we  shall 
now  consider  the  question  raised  by  plaintiff  concerning 
the  proper  construction  to  be  placed  thereon ;  also  as  to 
the  validity  of  the  director's  award. 

Appellant  contends  that  the  various  deductions  made 
from  the  moneys  due  him,  excepting,  possibly,  those  here- 
inbefore referred  to  as  amounting  to  f  10,  were  all  in  the 
nature  of  penalties,  and  not  liquidated  damages.  We 
cannot  sustain  this  contention.  Liquidated  damages 
may  be  provided  for  in  every  instance  where,  from  the 
character  of  work  to  be  performed,  it  is  manifestly  im- 
possible, or  most  difficult,  to  measure  the  damages,  par- 
ticularly for  defined  anticipated  defaults  which  may  be 
classified  as  probably  harmful :  Emery  v.  Boyle,  200  Pa. 
249,  253;  York  v.  York  Rys.  Co.,  229  Pa.  236,  241. 

The  present  is  peculiarly  a  case  for  liquidated  damages. 
As  stated  in  the  city  solicitor's  brief,  "The  question  as  to 
whether  or  not  the  streets  of  a  city  are  clean  at  any  par- 
ticular time  is  a  matter  susceptible  of  such  wide  diver- 
gence of  opinion,  that  a  contract  for  this  purpose  must 
deal  mostly  with  the  means  by  which  that  end  is  pro- 
duced.   It  is  necessary,  therefore,  to  have  specifications 


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CURRAN,  Appellant,  v.  PHILADELPHIA.        117 
1919.]  Opinion  of  the  Court 

based  upon  the  experience  of  the  department,  showing 
what  number  of  men,  teams  and  implements  shall  be  em- 
ployed, how  the  work  shall  be  done,  in  what  manner  the 
men  must  clothe  and  conduct  themselves,  so  they  may 
be  easily  identified  and  the  work  performed  without  of- 
fense to  the  public.  The  damage  resulting  from  nonper- 
formance of  any  of  these  items,  or  others  like  them,  can- 
not be  accurately  determined.  While  the  absence  of  a 
man,  or  an  implement,  might  not  prevent  the  cleaning  of 
a  street,  yet  it  might  keep  a  whole  gang  of  men  idle.  The 
failure  of  the  contractor  to  uniform  men,  or  mark  equip- 
ment, might  result  in  no  loss ;  on  the  other  hand,  it  might 
make  it  difficult  for  the  inspector  to  know  whether  or  not 
the  contract  was  being  complied  with  and  thus  cause  a 
great  loss  of  time  and  effort  on  his  part.  Hence,  the  only 
fair  method  is  that  used  in  these  specifications,  to  set 
forth  a  list  of  violations  with  the  deduction  for  each,  so 
the  contractor,  in  making  up  his  estimates,  may  know 
what  loss  will  be  incurred  by  his  failure  of  performance" ; 
and,  we  may  add,  so  public  interests  may  be  adequately 
protected :  Malone  v.  Phila.,  147  Pa.  416,  421. 

Appellant  urges  that  the  award  is  invalid  because  the 
director  of  public  works  rendered  the  decision,  whereas 
the  contract  requires  the  city  engineer  to  act  in  the  prem- 
ises; but  we  are  not  impressed  by  this  contention.  As 
hereinbefore  indicated,  the  specifications  contained  two 
clauses,  each  designating  a  referee,  or  arbitrator,  to  de- 
termine questions  under  the  contract ;  the  first,  section 
16,  names  the  engineer,  and  the  next,  section  76,  desig- 
nates the  director.  If  the  last  mentioned  clause  did  not 
appear,  appellant's  present  contention  might  well  be  sus- 
tained; but,  when  two  arbitration  provisions  are  in- 
serted in  an  agreement,  the  first  being  so  generally  com- 
prehensive in  its  scope  as  to  apparently  take  in  disputes 
of  every  nature,  while  the  other  is  limited  to  certain  de- 
fined questions,  they  may  both  stand ;  and,  in  construing 
such  a  contract,  matters  specified  in  the  second  clause,  as 
particularly  given  to  the  referee  there  designated,  will 


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118        CUBRAN,  Appellant,  v.  PHILADELPHIA. 

Opinion  of  the  Court.  [264  Pa. 

be  excepted  from  the  wider  jurisdiction  previously  con- 
ferred. When  this  rule  is  applied  to  the  present  case,  it 
is  clear  the  director,  and  not  the  engineer,  was  the  per- 
son to  pass  upon  and  determine  whether  or  not,  as  a  mat- 
ter of  fact,  the  contractor  had  made  the  particular  de- 
faults alleged  against  him,  and,  if  he  had,  then  to  deduct 
the  stipulated  damages ;  but  he  must  do  this  in  a  legal 
and  proper  manner. 

Did  the  director  proceed  according  to  law?  It  is  con- 
tended he  did  not,  in  that  plaintiff  was  neither  afforded  a 
hearing  nor  an  opportunity  to  demand  one  prior  to  the 
rendition  of  the  director's  decision ;  and,  on  this  ground, 
appellant  claims  the  award  against  him  is  illegal ;  which 
is  the  most  serious  complaint  in  the  case. 

To  determine  whether  the  contractor  had  made  the  al- 
leged defaults  and,  therefore,  must  pay  the  liquidated 
damages  specified  in  the  contract,  the  director,  as  ref- 
eree, had  to  perform  a  judicial  function  (Falconer  v. 
Montgomery  et  al.,  4  Dal.  *232,  #233 ;  Passmore  v.  Pettit 
and  Bayard,  4  Dal.  #271,  #272;  McManus  v.  McCulloch, 
6  Watts  357,  360) ;  and,  "when  a  case  is  submitted  to 
arbitration,  it  is  the  duty  of  the  arbitrator  to  afford  the 
parties  an  opportunity  to  be  heard,  if  they  desire  it,  be- 
fore making  an  award"  (Page  v.  Banstead,  92  Mass.  295, 
298 ;  2  B.  C.  L.  377,  sec.  24 ;  and  Pennsylvania  cases  last 
above  cited),  it  being  "well  established  that,  where  an 
arbitrator  proceeds  entirely  ex  parte,  without  giving  the 
party  against  whom  the  award  is  made  any  notice  of  the 
proceeding  under  the  submission,  the  award  is  void,  and 
it  is  not  necessary  to  show  corruption  on  the  part  of  the 
arbitrator" :  Ingraham  et  al.  v.  Whitmore  et  al.,  75  111. 
24,  31;  Bivers  v.  Walker,  1  Dal.  #81. 

Of  course,  a  party  may  "relinquish  his  right  to  a  hear- 
ing" (Hamilton  v.  Phoenix  Ins.  Co.,  106  Mass.  395,  398- 
399;  Page  v.  Banstead,  supra,  p.  298) ;  but,  where  it  is 
admitted  no  opportunity  for  a  hearing  was  afforded  be- 
fore the  award,  that  such  renunciation  did  in  fact  take 
place  must  be  made  to  appear  by  him  who  asserts  it. 


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CURRAN,  Appellant,  v.  PHILADELPHIA.        119 
1919.]  Opinion  of  the  Court 

Here  there  is  no  provision  for  ex  parte  hearings  con- 
tained in  the  contract;  hence  we  must  see  if  there  was 
any  implied  assent  to  a  hearing  of  that  character,  or 
waiver  or  estoppel,  binding  on  plaintiff,  which  prevents 
him  from  questioning  the  nature  of  the  investigation  that 
led  to  the  award  now  complained  of. 

One  may  either  impliedly  or  expressly  authorize  an 
arbitrator  to  proceed  in  his  absence  (Graham  v.  Graham, 
9  Pa.  254;  id.  12  Pa.  128;  Liverpool,  etc.,  Ins.  Co.  v. 
Gcehring,  99  Pa.  13,  16;  Bridgeport  v.  Eisenman,  47 
Conn.  34,  40;  Hamilton  v.  Phoenix  Ins.  Co.,  106  Mass. 
395,  398,  399;  Rector  v.  Hunter,  15  Tex.  380,  381;  also 
see  5  Corpus  Juris  91,  sec.  193 ;  Cogswell  v.  Cameron,  136 
Mass.  518,  524;  Page  v.  Eanstead,  92  Mass.  295,  298; 
Vincent  v.  German  Ins.  Co.,  120  Iowa  272,  278),  or  a 
hearing  may  be  waived  (McCord  v.  Scott,  4  Watts  11, 
12)  and  a  refusal  to  attend,  when  notified  by  the  arbi- 
trator, is  a  waiver  (Graham  v.  Graham,  9  Pa.  254, 255) ; 
but  in  this  case  there  is  nothing  to  show  plaintiff's  assent 
to  the  award  or  waiver  of  his  right  to  be  heard. 

Moreover,  the  city  has  been  in  no  way  harmed  by  ap- 
pellant's failure,  after  the  award,  to  claim  the  right  to 
a  hearing  before  bringing  suit.  In  other  words,  it  can- 
not be  argued  successfully  that,  because  plaintiff  failed 
to  demand  a  hearing  prior  to  instituting  this  action,  it 
is  now  too  late ;  for,  no  proper  award  having  been  made, 
the  arbitrator  still  may  act  (Frederick  v.  Margwarth, 
221  Pa.  418,  420),  the  complainant  being  subject  to  the 
usual  penalty  of  costs  for  having  brought  a  premature 
suit. 

Although,  in  certain  instances,  ex  parte  hearings  have 
been  held  valid  (see  cases,  supra),  yet  the  tendency  of 
the  law  is  against  anything  which  makes  for  secrecy  in 
judicial  proceedings.  To  what  extent  one  vested  with 
authority  to  determine  facts,  warranting  the  imposition 
of  liquidated  damages,  may  be  empowered  by  agreement 
to  proceed  ex  parte,  need  not  now  be  determined,  since, 
as  previously  said,  the  present  contract  contains  no  such 


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120        CUBRAN,  Appellant,  v.  PHILADELPHIA. 

Opinion  of  the  Court.  [264  Pa. 

authorization;  whenever  it  is  intended  to  confer  that 
unusual  power,  its  grant  must  clearly  appear.  For  other 
cases  touching  upon  the  right,  by  authority,  to  proceed 
ex  parte,  see  Bennett  v.  Bennett,  25  Conn.  66,  70;  Straw 
v.  Truesdale,  59  N.  H.  109,  112;  Canfield  v.  Watertown 
Fire  Ins.  Co.,  55  Wis.  419,  426;  Florida  Yacht  Clufc  v. 
Renf  roe,  67  Fla.  154, 163. 

We  conclude  that,  under  existing  circumstances,  the 
contractor  is  entitled  to  place  his  side  of  the  controversy 
before  the  director;  and  the  virtual  denial  of  that  right 
avoids  the  present  award. 

Should  plaintiff,  on  demand,  be  granted  a  hearing,  and 
it  be  held  in  accord  with  the  requirements  of  the  law, 
he  will  be  bound  by  the  award ;  otherwise  he  may  appeal 
to  the  courts ;  and,  of  course,  like  redress  is  always  avail- 
able upon  showing  partiality,  corruption,  collusion,  or 
capriciousness  on  the  part  of  the  arbitrator. 

Under  the  terms  of  the  agreement,  and  the  circum- 
stances of  this  case,  the  director,  himself,  is  required  to 
act,  for  the  general  provision  that  the  word  "director" 
shall  be  taken  to  mean  the  "director  or  his  authorized 
representatives,"  cannot  be  held  effective  so  far  as  that 
official's  duties  as  arbitrator  are  concerned;  else  there 
would  really  be  no  referee  named  to  fill  the  office 
raised  by  section  76  of  the  specifications  (supra),  where- 
as such  a  designation  is  indispensable  to  the  validity  of 
every  engagement  to  settle  prospective  disputes  by  arbi- 
tration (Mentz  v.  Armenia  Fire  Ins.  Co.,  79  Pa.  478, 
480 ;  Commercial  Union  Assurance  Co.  v.  Hocking,  115 
Pa.  407, 414 ;  Yost  v.  McKee,  179  Pa.  381, 384 )  and,  as  we 
have  already  held,  the  contract  before  us  is  essentially 
an  arbitration  agreement.  The  argument,  that  to  grant 
hearings,  such  as  called  for  by  plaintiff,  will  consume 
most  of  the  director's  time,  does  not  appeal  to  us.  The 
city  may,  in  future  contracts,  appoint  a  special  official 
for  that  purpose,  if  deemed  necessary;  but,  having 
named  the  director,  it  is  bound  by  that  designation. 
Moreover,   hearings   on   points   of   the  kind  here   in- 


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CUKEAN,  Appellant,  v.  PHILADELPHIA.        121 
1919.]  Opinion  of  the  Court 

volved  can  be  made  most  simple;  and,  in  the  end,  it  is 
quite  probable  they  will  serve  the  best  interests  of  all 
concerned,  including  the  public. 

Finally,  the  provision  of  the  contract — that  the  work 
shall  be  done  to  the  satisfaction  of  the  director — can  be 
given  no  controlling  significance  in  the  present  instance, 
it  being  established  that  the  arbitration  clauses  govern. 
If  the  question  concerned  merely  the  satisfaction  of  the 
director  as  a  representative  of  the  city,  the  good  faith  of 
his  expression  of  dissatisfaction  would  be  for  a  jury 
(Thaler  Brothers  v.  Greisser  Construction  Co.,  229  Pa. 
512,  518;  Williams  v.  Notopolos,  259  Pa.  469,  476); 
but,  as  already  pointed  out,  this  is  a  case  in  which  the 
director  is  an  arbitrator  and  must  proceed  accordingly. 

The  suit  before  us  was  prematurely  brought,  and,  for 
that  reason  alone,  this  appeal  is  dismissed;  without 
prejudice,  however,  to  the  right  of  plaintiff  to  pursue  his 
proper  remedy  under  the  contract. 


Simon,  Appellant,  v.  Lit  Bros.,  Inc. 

Negligence — Automobiles — Right  angle  collision  —  Speed — (7on- 
iributory  negligence. 

1.  It  is  the  duty  of  an  automobile  driver  in  approaching  a  street 
crossing  to  have  his  car  under  control  and  observe  if  vehicles  are 
approaching  on  the  intersecting  street,  and  in  case  a  car  or  truck 
is  first  at  the  crossing,  that  vehicle  must  be  given  an  opportunity 
to  cross  the  intersecting  street,  and  due  care  used  to  avoid  col- 
lision. 

2.  The  driver  of  a  car  is  not  required  to  anticipate  and  guard 
against  the  want  of  ordinary  care  on  the  part  of  another. 

3.  Where  the  driver  of  an  automobile  approaches  an  inter- 
secting street  at  a  speed  of  eight  or  ten  miles  an  hour,  and  gives 
warning,  he  is  not  bound  to  guard  against  collision  with  a  car 
approaching  on  such  street  at  a  speed  of  from  thirty  to  thirty-five 
miles  an  hour,  without  warning,  which  he  does  not  notice  until  the 
front  end  of  his  car  is  about  five  feet  from  the  nearest  railway  track 
on  the  intersecting  street. 


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122  SIMON,  Appellant,  v.  LIT  BROS.,  INC. 

Statement  of  Facts — Opinion  of  the  Court.  [264  Pa. 
Argued  Jan.  22,  1919.  Appeal,  No.  197,  Jan.  T., 
1919,  by  plaintiff,  from  order  of  C.  P.  No.  2,  Philadelphia 
Co.,  March  T.,  1917,  No.  2949,  refusing  to  take  off  non- 
suit in  case  of  Walter  Simon  v.  Lit  Brothers,  Incorpo- 
rated. Before  Stewart,  Frazer,  Walling  and  Simpson, 
JJ.    Beversed. 

Trespass  to  recover  damages  for  personal  injuries  and 
injuries  to  an  automobile.    Before  Barratt,  P.  J. 

At  the  trial  the  court  entered  a  compulsory  nonsuit 
which  it  subsequently  refused  to  take  off. 

Error  assigned  was  refusal  to  take  off  nonsuit. 

William  B.  Qery,  for  appellant. 

Raymond  A.  White,  Jr.,  with  him  Maurice  W.  Sloan, 
for  appellee. 

Opinion  by  Mr.  Justice  Frazbr,  March  10, 1919 : 
Plaintiff  appeals  from  a  judgment  of  nonsuit  in  an 
action  to  recover  damages  for  injuries  sustained  in  a 
right-angle  collision  between  automobiles  at  a  street 
crossing. 

On  March  12, 1917,  at  8 :  30  p.  m.,  plaintiff  was  driving 
east  on  Vine  street,  in  the  City  of  Philadelphia.  As  he 
approached  Seventeenth  street,  at  a  speed  of  eight  to  ten 
miles  an  hour,  he  gave  warning  by  sounding  his  horn  and 
proceeded  until  the  front  end  of  his  car  was  approxi- 
mately five  feet  from  the  nearest  rail  of  the  car  track 
on  Seventeenth  street,  when  he  noticed  defendant's  truck 
coming  south  on  Seventeenth  street  at  a  speed  of  thirty 
to  thirty-five  miles  an  hour.  In  attempting  to  avoid  a 
collision  plaintiff  turned  his  car  southward  on  Seven- 
teenth street,  not,  however,  quickly  enough  to  prevent  the 
two  cars  coining  in  contact,  the  front  of  his  car  being 
struck  on  the  side  by  defendant's  truck.  No  signal  or 
warning  of  the  approach  of  the  truck  was  given.    The 


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SIMON,  Appellant,  v.  LIT  BEOS.,  INC.  123 

1919.]  Opinion  of  the  Court 

trial  judge,  being  of  opinion  plaintiff's  duty  was  to  ob- 
serve the  approaching  truck  before  reaching  a  position  in 
which  he  was  unable  to  bring  his  car  to  a  stop  in  time 
to  avoid  a  collision,  held  his  failure  to  do  so,  convicted 
him  of  contributory  negligence.  In  thus  ruling  the  trial 
judge  placed  upon  plaintiff  a  higher  burden  than  he  was 
bound  to  assume,  under  the  decisions  of  this  court.  It 
is  the  duty  of  the  driver  of  an  automobile  in  approaching 
a  street  crossing  to  have  his  car  under  control  and  ob- 
serve if  vehicles  are  approaching  on  the  intersecting  street, 
and,  in  case  a  car  or  truck  is  first  at  the  crossing,  that 
vehicle  must  be  given  an  opportunity  to  cross  the  inter- 
secting street  and  due  care  used  to  avoid  collision :  Mc- 
Clung  v.  Penna.  Taximeter  Cab  Co.,  252  Pa.  478.  The 
driver  of  the  motor  car  first  reaching  the  crossing  has  the 
right  to  assume  the  driver  of  an  automobile  approaching 
on  the  intersecting  street,  will  do  so  at  a  moderate  speed 
with  his  car  under  control.  In  other  words,  the  driver 
of  a  car  is  not  required  to  anticipate  and  guard 
against  the  want  of  ordinary  care  on  the  part  of 
another:  Wagner  v.  Phila.  Rapid  Transit  Co.,  252  Pa. 
354.  Applying  these  principles  to  the  case  before  us, 
while  it  was  the  duty  of  plaintiff  as  he  approached  the 
intersection  of  the  two  streets  to  be  on  the  alert  for  an 
approaching  car  or  truck  driven  at  such  reasonable  speed 
as  the  circumstances  and  legal  duty  imposed  upon  the 
driver  might  warrant,  and  use  due  care  to  guard  against 
a  collision,  according  to  his  testimony  he  performed  this 
duty  and  also  gave  proper  warning  of  his  approach ;  he 
was  not  required  to  go  further  and  guard  against  col- 
lision with  a  car  approaching  at  such  excessive  speed 
as  the  testimony  indicates  defendant's  machine  was  be- 
ing driven  at  the  time  of  the  accident.  The  question  of 
plaintiff's  negligence  was,  consequently,  for  the  jury. 
The  judgment  is  reversed  with  a  procedendo. 


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124     COMMONWEALTH  v.  BEDNORCIKI,  Appellant. 

Syllabus.  [264  Pa. 

Commonwealth  v.  Bednorciki,  Appellant. 

Criminal  law — Murder — Evidence  —  Weapon  —  Declarations  of 
deceased  —  Degrees  —  Charge  —  Abstract  question  —  Character  — 
Charge  as  to  law — Presence  of  defendant  in  court — New  trial — As- 
signments of  error — Practice,  Supreme  Court. 

1.  Where,  on  the  trial  of  an  indictment  for  murder,  it  is  shown 
that  a  revolver  with  caliber  similar  to  that  used  in  the  commission 
of  the  crime,  was  found  in  defendant's  room  with  one  part  re- 
moved, it  is  proper  to  permit  the  use  of  a  like  weapon,  to  demon- 
strate to  the  jury  how  the  missing  part  could  be  removed. 

2.  Declarations  of  a  man  who  was  murdered,  made  to  his  wife 
shortly  before  his  death,  are  inadmissible,  where  there  is  no  evi- 
dence that  the  deceased  realized  he  was  about  to  die,  and  was  with- 
out hope  of  recovery.  The  rule  is  the  same  whether  such  declara- 
tions are  offered  for  or  against  the  accused. 

3.  Declarations  of  the  person  injured  which  tend  to  exculpate 
the  accused,  such  as  declarations  expressing  forgiveness  or  reluc- 
tance to  prosecute,  are  not  admissible,  where  they  are  not  a  part  of 
res  gestae  or  dying  declarations. 

4.  An  offer  at  a  murder  trial,  to  prove  that  some  months  prior  to 
the  homicide,  a  man,  other  than  the  accused,  had  threatened  to  fix 
the  deceased,  and  that  such  man  had  been  in  the  vicinity  on  the  day 
before  the  homicide,  is  inadmissible  where  there  is  nothing  to  con- 
nect the  man  with  the  offense. 

5.  At  a  trial  for  murder  the  trial  judge  does  not  commit  error 
by  charging  "We  are  concerned  in  the  case  only  with  the  sort  of 
murder  in  the  first  degree  known  as  wilful,  deliberate  and  premedi- 
tated." This  is  different  from  saying  "that  sort  of  murder  known 
as  wilful,  deliberate  and  premeditated." 

6.  It  is  proper  in  such  a  case  to  charge  that  the  presumption  is, 
that  one  who  commits  an  illegal  homicide  is  guilty  of  murder  of 
the  second  degree,  and  that  the  burden  is  upon  the  Commonwealth 
to  show  such  facts  and  circumstances  as  will  raise  the  offense  to 
first  degree  murder. 

7.  In  a  murder  case  the  court  is  not  required  to  charge  upon  ab- 
stract questions  not  involved  in  the  case,  and  this  is  emphatically 
true  where  no  request  is  made  therefor.  Thus  where  the  defense 
of  an  alibi  is  not  suggested  by  the  evidence,  or  raised  by  counsel, 
the  court  is  not  bound  to  explain  to  the  jury  the  law  relating 
thereto. 


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COMMONWEALTH  v.  BEDNORCIKI,  Appellant.  125 
1919.]  Syllabus— Arguments. 

8.  The  court  properly  charges,  in  a  murder  case,  on  character  as 
follows :  'If  under  all  the  evidence,  including  the  evidence  of  good 
character,  you  are  satisfied  beyond  a  reasonable  doubt  of  the  guilt 
of  the  prisoner,  you  should  convict,  notwithstanding  the  evidence 
of  good  character.  It  is  simply  substantive  evidence  to  be  con- 
sidered by  you  as  such." 

9.  It  is  not  error  for  the  court  in  guch  a  case,  to  say  to  the  jury 
"you  are  the  judges  of  the  facts,  as  I  have  tried  to  explain  to  you, 
and  it  is  my  duty  to  declare  to  you  the  law."  The  best  evidence  the 
jurors  have  of  the  law  is  the  instructions  of  the  court. 

10.  A  conviction  of  murder  of  the  first  degree,  will  not  be  re- 
versed, because  the  sheriff  did  not  bring  the  defendant  into  court 
promptly  at  the  time  fixed  for  the  argument  of  a  motion  for  a  new 
trial,  and,  by  consent  of  counsel,  the  argument  was  begun  in  his 
absence. 

11.  A  motion  and  reasons  for  a  new  trial  in  a  criminal  case 
should  be  set  out  in  the  assignment  of  error  relating  thereto. 

Argued  Feb.  3,  1919.  Appeal,  No.  88,  Oct.  T.,  1918, 
by  defendant,  from  judgment  of  O.  &  T.  Beaver  Co.,  Dec. 
T.,  1917,  No.  5,  on  verdict  of  murder  of  the  first  degree  in 
case  of  Commonwealth  v.  Broneslaw  Bednorciki.  Before 
Brown,  C.  J.,  Stbwaet,  Moschziskbb,  Walling  and 
Simpson,  JJ.    Affirmed. 

Indictment  for  murder.    Before  Baldwin,  P.  J. 
Verdict  of  guilty  of  murder  of  the  first  degree,  on 
which  judgment  of  sentence  was  passed. 

Errors  assigned  were  various  rulings  on  evidence  and 
instructions  sufficiently  appearing  by  the  opinion  of  the 
Supreme  Court. 

Clyde  Holt,  of  Holt  &  Holt,  with  him  M.  F.  Mecklem, 
for  appellant,  cited :  Com.  v.  Frucci,  216  Pa.  84;  Com.  v. 
Watson,  233  Pa.  295;  Meyers  v.  Com.  83  Pa.  131;  Com. 
v.  Smith,  221  Pa.  552;  Com.  v.  Cleary,  135  Pa.  64;  Kane 
v.  Com.,  89  Pa.  522 ;  Com.  v.  Silcox,  161  Pa.  484. 

Louis  E.  Graham,  District  Attorney,  with  him  Frank 
H.  Laird,  for  appellee,  cited :    Small,  v.  Com.,  91  Pa. 


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126      COMMONWEALTH  v.  BEDNORCIKI,  Appellant. 

Arguments — Opinion  of  the  Court.  [264  Pa. 

304;  Com.  v.  Drum,  58  Pa.  9;  Com.  v.  Zappe,  153  Pa. 
498;  Com.  v.  Eckerd,  174  Pa.  137;  Com.  v.  Coraino,  261 
Pa.  593. 

Opinion  by  Mr.  Justice  Walling,  March  10, 1919 : 
This  appeal  by  defendant  is  from  the  judgment  on  con- 
viction of  murder  of  the  first  degree.  Charles  Beink,  the 
deceased,  resided  with  his  wife  and  children  on  a  farm 
three  miles  from  Beaver  Palls  and  Broneslaw  Bednor- 
ciki,  the  defendant,  an  unmarried  man,  lived  with  them. 
On  the  evening  of  September  8,  1917,  the  two  men  took 
a  horse  and  buggy  and  drove  to  Beaver  Falls  where  they 
did  some  shopping  and  started  home  together  about  ten 
o'clock.  The  next  morning  the  deceased  was  found  about 
one-half  mile  from  his  home  down  a  bank  some  forty 
yards  from  the  highway,  so  injured  by  gun  shot  wounds, 
cuts  and  bruises,  that  he  died  two  days  later.  A  neigh- 
bor testified  that  about  midnight,  while  walking  along 
the  road,  he  heard  moans  coming  from  where  the  de- 
ceased was  afterward  found  and  at  the  same  time  saw 
the  defendant  in  the  road  by  the  horse  and  buggy,  and  the 
next  morning,  when  discovered  coming  up  through  the 
bushes  whence  the  groans  were  still  emanating,  defend- 
ant explained  their  cause  by  saying  his  friend  had  too 
much  drink.  There  were  many  other  circumstances  tend- 
ing to  connect  him  with  the  crime,  with  which  the  wife 
of  the  deceased  being  also  charged  as  an  accessory.  A  re- 
volver, with  caliber  similar  to  that  used  in  the  commis- 
sion of  the  crime,  was  found  concealed  in  defendant's 
room  with  one  part  removed;  and  there  was  no  error  in 
permitting  the  use  of  a  like  weapon  to  demonstrate  to  the 
jury  how  the  missing  part  can  be  removed :  see  Common- 
wealth v.  Miller,  258  Pa.  226;  Commonwealth  v.  Fry, 
198  Pa.  379. 

Neither  was  there  any  error  in  refusing  to  permit  the 
wife  of  the  deceased  to  testify  to  an  alleged  conversation 
with  him  at  the  hospital  shortly  before  his  death.  If 
admissible  it  was  as  a  flying  declaration,  and  it  could 


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COMMONWEALTH  v.  BBDNORCIKI,  Appellant.      127 
1919.]  Opinion  of  the  Court 

not  be  received  as  such  without  evidence  that  the  de- 
clarant realized  he  was  about  to  die  and  was  without 
hope  of  recovery,  and  as  to  that  there  was  neither  proof 
nor  offer  of  proof:  see  Sullivan  v.  Commonwealth,  93 
Pa.  284.  The  rule  is  the  same  whether  such  declaration 
is  offered  for  or  against  the  accused :  Mattox  v.  U.  S., 
146  TJ.  S.  140.  "Declarations  of  the  person  injured  which 
tend  to  exculpate  accused,  such  as  declarations  express- 
ing forgiveness  or  a  reluctance  to  prosecute,  are  not  ad- 
missible, where  they  are  not  part  of  res  gestae,  nor  dying 
declarations":  16  Corpus  Juris,  p.  641.  Among  the 
numerous  cases  there  cited,  State  v.  Brady,  71  N.  J.  L. 
360,  says:  "In  the  prosecution  of  criminal  offenses  the 
state  does  not  assert  a  private  right,  or  maintain  an 
individual  interest,  in  any  such  sense  as  to  be  affected 
or  bound  by  hearsay  statements  of  him  who  has  been  the 
victim  or  object  of  the  criminal  act.  There  is  no  such 
legal  identity  or  privity  between  the  person  so  situated 
and  the  state  as  to  render  admissions  made  by  him  com- 
petent evidence  in  behalf  of  the  party  charged  with  the 
commission  of  the  crime." 

The  defendant  offered  to  prove  that  some  four  months 
prior  to  the  homicide  a  man  who  resided  in  Pittsburgh 
had  threatened  to  fix  the  deceased,  and  that  such  man 
was  in  Beaver  Falls  on  the  Friday  preceding  the  homi- 
cide. As  there  was  nothing  tending  to  connect  him  with 
the  offense,  the  offer  was  properly  rejected:  Common- 
wealth v.  Schmous,  162  Pa.  326. 

The  charge  was  full  and  accurate  and  the  errors  as- 
signed to  excerpts  therefrom  are  without  merit.  The 
trial  judge  did  not  say  that  we  are  here  concerned  only 
with  that  sort  of  murder  known  as  wilful,  deliberate  and 
premeditated,  but  that  we  are  here  concerned  only  with 
that  sort  of  murder  in  the  first  degree  so  known,  which 
is  entirely  different  and  accords  with  the  language  of 
Justice  Agnbw  in  Commonwealth  v.  Drum,  58  Pa.  9, 
16. 


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128      COMMONWEALTH  v.  BEDNORCIKI,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

It  was  right  to  instruct  the  jury  in  effect  that  the  pre- 
sumption is  that  one  who  commits  an  illegal  homicide  is 
guilty  of  murder  in  the  second  degree  and  that  the  bur- 
den is  upon  the  Commonwealth  to  show  such  facts  and 
circumstances  as  will  raise  the  offense  to  first  degree 
murder,  accompanied  by  full  and  explicit  instructions  as 
to  all  the  elements  necessary  to  constitute  that  degree 
of  crime.  As  the  victim  was  shot  through  both  the  head 
and  body,  his  ears  severed,  one  eye  gouged  out,  his  head 
and  face  frightfully  cut,  bruised  and  mangled,  his  body 
dragged  forty  yards  down  the  bank,  leaving  a  trail  of 
blood,  and  there  abandoned  in  the  night,  there  was  no 
impropriety  in  the  court's  calling  the  attention  of  the 
jury  to  the  importance  of  the  case  both  to  the  Common- 
wealth and  to  the  defendant,  and  saying,  "it  would 
certainly  appear  that  some  one  was  guilty  of  a  most 
heinous  crime." 

The  defense  of  an  alibi  was  not  suggested  by  the  evi- 
dence nor  raised  by  counsel  during  the  trial  and  the  court 
was  not  bound  to  explain  to  the  jury  the  law  relating 
thereto.  Even  in  a  murder  case  the  court  is  not  required 
to  charge  upon  abstract  questions  not  involved  in  the 
case,  and  this  is  emphatically  true  where  no  request  is 
made  therefor :  see  Brown  v.  Commonwealth,  76  Pa.  319 ; 
Commonwealth  v.  Winkelman,  12  Pa.  Superior  Ct.  497. 
The  defendant  denied  his  guilt  and  testified  that  they 
came  home  together  and  he  went  to  bed  and  remained 
there  until  morning.  In  the  main  this  was  corroborated 
by  the  wife  of  the  deceased,  who  also  said  her  husband 
left  the  house  that  night  shortly  after  they  came  home. 
The  court  called  the  jury's  attention  to  this  evidence, 
but  it  did  not  constitute  an  alibi,  properly  so  called,  for 
the  crime  might  have  been  committed  before  the  defend- 
ant reached  home,  as  the  Commonwealth  contended,  or 
even  after  he  left  home  in  the  morning.  It  was  self- 
evident  that  defendant  did  not  commit  it  while  home  and 
in  bed.  But  the  story  that  the  deceased  came  home  after 
midnight  and  immediately  started  alone  to  walk  back  to 


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COMMONWEALTH  v.  BBDNORCIKI,  Appellant.      129 
1919.]  Opinion  of  the  Court 

Beaver  Falls,  while  highly  improbable  and  inconsistent 
with  the  other  evidence  in  the  case,  was  properly  sub- 
mitted to  the  jury.  If  more  specific  instructions  as  to 
that  branch  of  the  case  were  desired  they  should  have 
been  requested :  Commonwealth  v.  Zappe  et  al.,  153  Pa. 
498. 

On  the  question  of  character  evidence  the  court 
charged,  inter  alia:  "Nevertheless,  if,  under  all  the  tes- 
timony in  the  case,  including  the  evidence  of  good  char- 
acter, you  are  satisfied  beyond  a  reasonable  doubt  of  the 
guilt  of  the  prisoner  at  the  bar,  you  should  convict,  not- 
withstanding the  evidence  of  good  character.  It  is  sim- 
ply substantive  evidence  to  be  considered  by  you  as  such." 
That  was  clearly  right  and  in  accord  with  numerous  de- 
cisions of  this  court. 

The  trial  judge  stated  in  the  charge,  "You  are  the 
judges  of  the  facts,  as  I  have  tried  to  explain  to  you,  and 
it  is  my  duty  to  declare  to  you  the  law."  The  latter 
clause  is  criticised,  but  unjustly  so.  It  is  the  duty  of 
a  trial  judge  to  declare  the  law  to  the  jury  in  every 
criminal  case,  and  particularly  in  a  homicide  case: 
Meyers  v.  Commonwealth,  83  Pa.  131;  Commonwealth 
v.  Smith,  221  Pa.  552.  The  best  evidence  the  jurors  have 
of  the  law  is  the  instructions  of  the  court.  Of  course 
they  can  render  a  general  verdict  of  not  guilty  and  to 
that  extent  are  the  ultimate  judges  of  both  the  law  and 
the  facts ;  but  that  does  not  absolve  the  court  from  its 
duty  of  declaring  the  law  to  them  nor  absolve  them  from 
the  duty  of  accepting  it  when  so  declared:  Common- 
wealth v.  McManus,  143  Pa.  64. 

The  sheriff  did  not  bring  the  defendant  into  court 
promptly  at  the  time  fixed  for  the  argument  of  the  mo- 
tion for  a  new  trial  and  by  consent  of  counsel  the  argu- 
ment was  begun  in  his  absence.  In  Jewell  v.  Common- 
wealth, 22  Pa.  94, 101,  this  court,  in  an  opinion  by  Chief 
Justice  Black,  says :  "We  are  of  opinion  that  the  pres- 
ence of  a  prisoner  charged  with  a  capital  offense,  at  any 
time  between  the  verdict  and  sentence,  though  very  prop- 
Vol.  cclxiv— 9 

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130     COMMONWEALTH  v.  BBDNOECIKI,  Appellant 

Opinion  of  the  Court.  [264  Pa. 

efy  is  not  necessary  to  the  validity  of  the  judgment." 
That  is  undoubtedly  sound,  and,  as  there  shown,  a  false 
step  taken  after  verdict  would  vitiate  only  what  followed 
it. 

The  motion  and  reasons  for  a  new  trial  are  not  set  out 
in  the  assignment  of  error  and  therefore  are  not  properly 
before  us  (Sikorski  v.  Phila.  &  R.  By.  Co.,  260  Pa.  243) ; 
but  we  have  examined  them  and  find  nothing  to  justify 
disturbing  the  verdict,  which  was  the  logical  result  of 
the  evidence. 

The  assignments  of  error  are  overruled,  the  judgment 
is  affirmed,  and  it  is  ordered  that  the  record  be  re- 
mitted to  the  court  below  for  the  purpose  of  execution. 


Laing,  Appellant,  v.  Remington  Arms  Co. 

Negligence — Fall  of  stringer— -Evidence. 

In  an  action  to  recover  damages  for  personal  injuries  judgment 
for  defendant  n.  o.  v.  is  properly  entered,  where  the  evidence  shows 
that  plaintiff,  while  working  as  an  employee  of  a  contractor  on  the 
premises  of  defendant,  was  hit  on  the  head  by  a  falling  stringer, 
without  any  evidence  whatever  as  to  what  caused  its  fall. 

Argued  Feb.  10, 1919.  Appeal,  No.  245,  Jan.  T.,  1919, 
by  plaintiff,  from  judgment  of  C.  P.  Delaware  Co.,  March 
T.,  1917/ No.  195,  for  defendant  n.  o.  v.  in  case  of  Thomas 
W.  Laing  v.  Remington  Arms  Company.  Before  Brown, 
C.  J.,  Stewart,  Frazbr,  Simpson  and  Ebphart,  JJ.  Af- 
firmed. 

Trespass  to  recover  damages  for  personal  injuries.  Be- 
fore Broomall,  J. 

At  the  trial  it  appeared  that  at  the  time  of  the  accident, 
plaintiff  was  employed  as  a  workman  by  Wm.  M.  Ander- 
son, an  independent  contractor,  doing  work  for  the  de- 
fendant. Plaintiff  was  hit  on  the  head  by  a  falling 
stringer. 


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LAING,  Appellant,  v.  REMINGTON  ARMS  CO.    131 
1919.]  Verdict — Opinion  of  the  Court. 

Verdict  was  rendered  fop  plaintiff  for  f  7,557.  Subse- 
quently the  court  entered  judgment  fop  defendant  n.  o.  v. 

Error  assigned  was  in  entering  judgment  for  defend- 
ant n.  o.  v. 

J.  DeHtwen  Leduoard,  with  him  J.  Morris  Yeakle,  for 
appellant. 

Wm.  I.  Schaffer,  with  him  Arthur  L.  Beeser,  for  ap- 
pellee. 

Phb  Curiam,  March  10, 1919 : 

This  judgment  is  affirmed  on  the  following  from  the 
opinion  of  the  learned  court  below  entering  it  for 
the  defendant  non  obstante  veredicto:  "In  the  case  in 
hand  there  is  no  proof  of  the  cause  of  the  fall  of  the 
stringer.  It  was  not  shown  to  have  been  insecurely 
placed.  To  enable  it  to  fall  it  must  have  been  removed 
from  its  moorings.  This  may  have  been  done  by  some 
of  the  workmen  at  work  about  it.  This  may  have  been 
by  some  of  Anderson's  men  who  had  the  same  opportu- 
nity as  the  defendant's  workmen.  The  suggestion  that  it 
may  have  been  dislodged  by  vibration  is  in  the  absence 
of  evidence  of  the  extent  and  character  of  the  vibration 
and  that  the  vibration  would  produce  such  results  mere 
speculation.  In  short  we  have  a  case  where  we  have 
merely  the  proof  of  the  fall  of  the  object,  with  no  proof  of 
what  caused  it  to  fall." 

Judgment  affirmed. 


Bean's  Estate. 


DededenUf  estate* — Uontract— Implied  'ctmtract—Famtli/  rela- 
tion—Note—Undelivered  note — Evidence. 

1.  There  is  no  implied  contract  to  pay  for  services  rendered  to  a 
decedent  while  the  family  relation  exists  between  the  parties. 


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132  BEAN'S  ESTATE. 

Syllabus — Arguments.  [264  Pa. 

2.  No  obligation  arises  by  reason  of  an  executed  but  undelivered 
note  found  in  the  possession  of  the  maker  thereof. 

3.  Unless  some  connection  is  shown  between  an  undelivered  note 
found  in  a  decedent's  possession,  and  an  alleged  liability  of  decedent 
to  the  payee  named  in  the  note,  the  note  is  not  evidence  of  such 
liability. 

4.  Loose  expressions  of  a  decedent  to  the  effect  that  the  claimant 
had  worked  faithfully  for  him,  conjoined  with  the  fact  that  an  un- 
delivered note  in  the  claimant's  favor  was  found  in  decedent's  pos- 
session, will  not  alone  justify  an  award  for  services  rendered. 

Argued  Feb.  10,  1919.  Appeal,  No.  78,  Jan.  T.,  1919, 
by  David  H.  Bean  et  al.  from  decree  of  O.  C.  Bucks  Co., 
dismissing  exceptions  to  auditor's  report  in  Estate  of 
Frank  Bean,  deceased.  Before  Brown,  C.  J.,  Stewart, 
Frazbr,  Simpson  and  Kephart,  J  J.   Reversed. 

Exceptions  to  report  of  Howard  I.  James,  Esq.,  audi- 
tor. 

The  court  confirmed  the  report. 

Error  assigned  was  decree  confirming  the  auditor's  re- 
port. 

Webster  Grim,  with  him  Harry  E.  Grim,  for  appellant. 
— A  gift  of  a  chose  in  action  without  delivery  is  invalid, 
and  the  intention  does  not  execute  the  gift:  Trough's 
Est.,  75  Pa.  115 ;  Pringle  v.  Pringle,  59  Pa.  281. 

Where  family  relationship  exists  claimant  can  only 
claim  on  proof  of  express  contract:  Lackey's  Est.,  181 
Pa.  638. 

The  mere  expression  of  gratitude  for  services  rendered 
or  of  an  intention  to  compensate  therefor  is  not  sufficient 
to  prove  a  contract  to  pay  for  such  service :  Zimmerman 
v.  Zimmerman,  129  Pa.  229. 

THomas  Ross,  with  him  George  Ross,  for  appellee, 
cited:  Oilmor's  Estate,  158  Pa.  186. 


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BEAN'S  ESTATE.  133 

1019.]  Opinion  of  the  Court. 

Opinion  by  Mb.  Justice  Simpson,  March  10, 1919 : 
During  the  last  illness  of  Frank  Bean,  the  present 
decedent,  his  housekeeper  saw  upon  his  bureau  a  pocket- 
book  and  some  keys  belonging  to  him.  With  his  consent 
she  locked  them  in  her  trunk  for  safekeeping,  stating 
that  she  would  return  them  to  him  when  he  was  all 
right.  But  he  did  not  recover.  On  the  day  after  the 
funeral  she  opened  the  pocketbook,  found  in  it  two  prom- 
issory notes,  one  for  $565,  signed  by  Henry  J.  Franken- 
field  to  the  order  of  decedent,  and  endorsed  by  decedent, 
"This  note  is  void  after  my  death";  the  other  for 
$3,000  signed  by  decedent  to  the  order  of  Laura  Frank- 
enfield,  wife  of  Henry  J.  Frankenfield ;  and  handed  them 
to  said  parties.  The  pocketbook,  the  rest  of  its  contents, 
and  the  keys,  she  gave  to  the  administrator. 

When   the  account  of  the  administrator  was  filed, 
Laura  Frankenfield  presented  a  claim  "on  this  note 

as  a  creditor,"  being  the  one  for  $3,000,  proved 

decedent's  signature  and  rested.  The  heirs  at  law  then 
gave  in  evidence  the  above  stated  facts  as  to  possession  of 
the  note,  and  that  claimant,  who  was  a  niece  of  decedent's 
wife,  lived  with  them  as  a  member  of  their  family,  and 
rested.  Claimant  then  proved  that  she  went  to  live  with 
decedent  when  she  was  six  years  old,  was  treated  as  one 
of  the  family,  and  continued  to  reside  with  him  until  she 
was  twenty-three  years  of  age,  during  which  time  she 
helped  in  the  house  and  store,  and  on  the  farm.  The 
auditor  finds  that  "while  she  resided  with  the  decedent, 
the  claimant  attended  school,  was  treated  as  one  of  the 
members  of  the  family,  being  clothed  by  decedent" ;  and 
"helped  to  wait  on  the  store,  did  housework,  waited  on 
her  aunt  while  she  was  ill,  and  even  assisted  in  the  farm 
work"  as  any  member  of  his  family  would.  The 
above  is  all  the  admissible  evidence  in  the  case;  but 
even  if  we  include  that  of  Henry  J.  Frankenfield,  hus- 
band of  the  claimant,  despite  his  incompetency  as  a  wit- 
ness (Sutherland  v.  Ross,  140  Pa.  379;  Reap  v.  Dougher, 
261  Pa.  23) ,  and  the  objection  made  on  that  ground ;  and 


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134  BEAN'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

the  evidence  of  conversations  with  decedent's  wife,  not 
shown  to  have  been  made  in  his  presence,  and  of  course 
not  admissible  to  charge  his  estate,  the  only  addition  to 
the  foregoing  will  be  that  decedent  said  claimant  had 
worked  faithfully,  was  a  good  girl  and  "will  be  provided 
for." 

The  auditor  further  says :  "If  there  was  nothing  more 
to  sustain  this  claim  than  the  declarations  of  the  dece- 
dent that  Laura  would  be  well  provided  for,  or  other 
loose  expressions  of  like  character,  the  evidence  would 
clearly  not  justify  the  allowance  of  the  claim,  but  those 
expressions,  taken  in  conjunction  with  decedent's  own 
act  in  making  the  note,  present  a  different  question."  The 
auditor  then  asks  a  series  of  questions :  (1)  Why  should 
decedent  have  cancelled  the  husband's  note  and  retained 
this  one,  "unless  he  intended  that  this  note  to  the  claim- 
ant should  represent  his  acknowledgment  of  his  indebt- 
edness to  her  for  her  services?"  (2)  Why  should  he 
write  it  "if  he  did  not  intend  to  give  the  payee  of  the 
note  an  obligation  which  she  could  collect?"  (3) 
If  he  did  not  intend  this  note  as  an  acknowledgment 
"why  would  he  have  permitted  the  pocketbook  contain- 
ing this  note  to  pass  into  the  possession  of  Mrs.  Krial 
and  be  taken  charge  of  by  her  during  his  illness?"  Deem- 
ing those  questions  unanswerable,  and  apparently  not 
recognizing  the  vital  distinction  between  an  unexecuted 
intention  and  one  that  is  executed,  he  allowed  the  claim 
because  of  the  cases  hereinafter  considered.  The  court 
below  stating  the  same  facts,  and  reviewing  the  same 
cases,  approved  the  auditor's  conclusion,  decreed  accord- 
ingly, and  this  appeal  by  decedent's  heirs  and  next  of 
kin  followed. 

As  the  family  relation  existed  between  claimant  and 
decedent,  there  is  no  presumption  of  a  liability  to  pay 
for  her  services :  Amey's  App.,  49  Pa.  126 ;  whether  they 
were  rendered  in  household  or  business  affairs :  Barhite's 
App.,  126  Pa.  404;  and  no  recovery  can  be  had  therefor 
except  upon  clear  and  satisfactory  evidence  of  an  express 


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BEAN'S  ESTATE.  135 

1919.]  Opinion  of  the  Court 

promise  to  pay :  NeeFs  Adm.  v.  Neel,  59  Pa.  347.  In  the 
present  case  there  is  no  evidence  of  an  express  promise; 
and  hence  we  start  with  the  fact  that  her  claim  of  an 
"indebtedness  to  her  for  her  years  of  faithful  service," 
has  no  legal  basis  upon  which  to  rest.  True,  decedent 
could  recognize  a  moral  claim,  but  his  recognition  there- 
of is  of  no  moment  unless  accompanied  by  evidence  of 
an  express  promise  to  pay :  NeePs  Adm.  v.  Neel,  supra. 
In  the  present  case  there  is  no  evidence  of  such  promise, 
except  as  attempted  to  be  derived  from  the  undelivered 
note,  which  would  not  become  a  promise  until  delivered. 
The  auditor  and  court  below  correctly  decide  that  the 
"loose  expressions"  in  the  evidence  "would  clearly  not 
justify  the  claim,"  yet  they  conclude  that  "loose  expres- 
sions," which  do  not  justify  the  claim,  conjoined 
with  an  undelivered  note,  which  also  does  not  justi- 
fy it,  together  make  the  claim  good,  though  no  con 
nection  is  shown  between  the  services,  the  "loose  expres- 
sions" and  the  note.  Necessarily  this  is  error.  Had  de- 
cedent referred  to  the  note  in  connection  with  the  serv- 
ices, or  even  had  he  said  he  intended  to  recompense  claim- 
ant for  her  services,  something  might  be  said  in  support 
of  the  claim;  but  the  evidence  is  barren  of  anything  in 
regard  thereto.  For  all  that  appears  the  note  may  have 
been  delivered,  paid  and  returned,  or  may  have  been  an  in- 
tended but  unexecuted  gift ;  and  certain  it  is  the  "loose 
expressions"  testified  to  were  more  compatible  with  an 
intention  to  recompense  by  will,  than  by  a  promissory 
note,  and  were  wholly  valueless  for  any  purpose :  Walls's 
App.,  Ill  Pa.  460;  Ulrich  y.  Arnold,  120  Pa.  170;  Mil- 
lers Est.,  136  Pa.  239,  249. 

The  cases  relied  upon  by  the  claimant,  the  auditor  and 
the  court  below,  do  not  support  the  right  to  recover.  In 
Toner  v.  Taggart,  5  Binney  490,  the  note  was  found 
among  Toner's  papers  after  his  death,  but  the  money 
out  of  which  it  was  paid  was  in  Taggart's  possession,  de- 
livered to  him  by  Toner  who  refused  to  take  any  obli- 
gation therefor,  though  he  was  studiously  careful  so  to 


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138  BEAN'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

do  in  all  other  transactions  between  them.  The  court 
found  as  a  fact  that  Toner  in  his  lifetime  "alluded  to  that 
paper  as  an  act  done  in  favor  of  Taggart,"  and  counsel 
for  the  heirs  and  next  of  kin  admitted  if  that  was  so  the 
claim  would  be  valid.  In  Fanny  Miller's  Est.,  16  Lane. 
Law  Eev.  3,  claim  was  made  upon  three  sealed  notes, 
which  the  auditor  found  were  executed  and  delivered  in 
escrow  by  decedent  in  her  lifetime,  to  be  delivered  to  the 
parties  interested  after  her  death,  in  payment  of  services 
rendered;  that  course  being  taken  because  she  was  ad- 
vised she  could  not  make  a  will  in  favor  of  claimants,  who 
were  not  related  to  her,  but  could  pay  them  after  her 
death  by  giving  the  notes,  and  hence  she  pursued  that 
course.  Moreover,  the  only  objections  there  made  to  the 
allowance  of  the  claim  on  the  notes,  was  because  of  an 
alleged  want  of  consideration  therefor,  and  because  the 
consideration,  if  there  was  any,  was  so  inadequate  as  to 
taint  the  transaction  with  fraud.  In  Henry  Miller's  Est., 
53  Pitts.  L.  J.  (o.  s.)  321,  by  agreement  between  claim- 
ant and  decedent  the  latter  had  taken  title  to  a  property 
in  which  the  former  was  interested,  and  on  which  she  had 
paid  considerable  money,  he  agreeing  to  compensate  her 
for  her  interest,  and  when  asked  if  he  had  made  out  the 
note  for  the  amount  due  her,  he  said  not,  but  he  would  do 
so  that  day.  She  lived  with  him  and  the  note  was  found  in 
his  possession.  The  auditor  found  he  was  indebted  to  her 
on  the  purchase  of  the  property  in  the  amount  of  the 
note,  and  allowed  the  claim.  In  Gilmor's  Est.,  158  Pa. 
186,  claim  was  made  upon  a  series  of  notes  in  claimant's 
favor,  and  found  in  decedent's  possession,  with  endorse- 
ments in  decedent's  handwriting,  on  the  envelopes  con- 
taining them,  that  they  belonged  to  claimant  and  were 
given  for  money  he  owed  her.  So  far  as  she  proved,  aside 
from  the  notes  themselves,  that  decedent  was  indebted 
to  her,  the  claim  was  allowed,  but  there  was  no  recovery 
beyond  that.  It  is  clear,  therefore,  none  of  the  above 
cases  lends  any  aid  to  the  claim  in  the  present  case. 


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BEAN'S  ESTATE.  137 

1919.]  Opinion  of  the  Court 

The  decree  of  the  court  below  is  reversed,  appellee's 
claim  is  disallowed,  and  the  record  remitted  that  distri- 
bution may  be  made  to  those  entitled  thereto.  Costs  to 
be  paid  by  the  estate. 


Boy  den,  Appellant,  v.  Philadelphia  &  West  Ches- 
ter Traction  Co. 

Negligence — Street  railways  —  Collision  —  Crossing — Contribu- 
tory negligence — Nonsuit — Presumption. 

In  an  action  against  a  street  railway  company  to  recover  dam- 
ages for  death  of  plaintiff's,  husband  caused  by  a  collision,  at  a  cross- 
ing, between  an  electric  car  and  a  drill  the  deceased  was  driving,  a 
nonsuit  is  properly  entered  where  the  only  witness  who  saw  the  acci- 
dent, testified  that  the  deceased  remained  seated  on  the  drill  in  the 
rear  of  his  team,  apparently  in  deep  study,  neither  looking  for  a 
car,  nor  heeding  its  whistle,  which  the  witness  distinctly  heard, 
though  she  was  much  further  from  the  car  than  the  deceased;  and 
the  other  testimony  in  the  case  was  wholly  inadequate  to  permit  a 
determination  as  to  whether  there  was  apparent  time  for  the  de- 
ceased to  cross  ahead  of  the  car.  There  is  no  presumption  that  de- 
ceased saw  the  car  coming  at  such  distance  from  the  crossing  as  to 
warrant  him  in  the  belief  that  he  could  safely  cros§  ahead  of  it. 

Argued  Feb.  10,  1919.  Appeal,  No.  254,  Jan.  T., 
1919,  by  plaintiff,  from  order  of  C.  P.  Chester  Co.,  refus- 
ing to  take  off  nonsuit  in  case  of  Annie  S.  Boyden  v. 
Philadelphia  &  West  Chester  Traction  Co.  Before 
Brown,  C.  J.,  Stewart,  Frazer,  Simpson  and  Kbphart, 
JJ.   Affirmed. 

Trespass  for  damages  for  death  of  plaintiffs  husband. 

The  court  entered  a  compulsory  nonsuit,  which  it  sub- 
sequently refused  to  take  off,  Butler,  P.  J.,  filing  the  fol- 
lowing opinion : 

The  only  ground  on  which  counsel  for  plaintiff  sought 
to  avoid  the  conclusion  of  contributory  negligence  on 
Boyden's  part  in  attempting  the  crossing  ahead  of  the 
car,  which  he  could  have  seen  had  he  looked  immediately 


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138      BOYDEN,  Appellant,  v.  PHILA.  &  W.  C.  T.  CO. 

Opinion  of  Court  below.  [264  Pa. 

before  he  reached  the  crossing,  was  that  he  might  be  pre- 
sumed, under  the  evidence,  to  have  seen  the  car  coming 
at  such  a  distance  from  the  crossing  as  to  warrant 
him  in  the  belief  that  he  could  safely  cross  ahead  of  it 
We  thought  at  the  trial,  and  still  think  no  such  conclusion 
could  properly  have  been  reached  by  the  jury.  Accord- 
ing to  the  testimony  of  the  sole  witness  on  this  subject, 
Boyden  remained  seated  on  the  drill  in  the  rear  of  his 
team,  was  apparently  in  deep  study,  neither  looking  for 
a  car  nor  heeding  its  whistle  which  this  witness  says  was 
distinctly  heard  by  her,  though  she  was  much  further 
from  the  car.  Apart  from  this,  the  testimony  intended 
to  fix  the  location  of  the  car — its  distance  from  the  cross- 
ing when  Boyden  drove  on  the  track — is  wholly  indefi- 
nite, and  entirely  inadequate  to  permit  a  determination  as 
to  whether  there  was  apparently  time  for  Boyden  to 
safely  cross  ahead  of  the  car.  Alice  White,  the  only 
witness  called  who  saw  the  car  approaching  the  crossing 
as  Boyden  drove  over  it,  said  she  was  unable  to  give  any 
judgment  as  to  how  far  the  car  then  was  short  of  the 
crossing,  and  the  witnesses  who  endeavored  to  put  them- 
selves in  the  position  she  occupied  when  she  saw  the 
car  coming,  and  to  then  determine  the  point  at  which, 
had  she  been  looking  intently,  she  could  possibly  have 
first  seen  the  car,  prove  nothing  definite  as  to  the  posi- 
tion of  the  car  when  she  did  in  fact  first  see  it.  Part  of  the 
time  she  was  looking  at  Boyden,  and  she  did  not  testify 
that  she  was  intently  looking  for  the  car,  that  she  saw  it 
at  the  first  instant  she  could  have  seen  it.  All  that  she 
says  is  that  when  she  saw  it  come  into  sight,  when  she 
in  fact  did  first  see  it — wherever  the  car  then  was — 
Boyden  was  engaged  in  crossing  the  track.  Under  all 
that  appears  it  is  more  probable  than  otherwise  that 
when  she  noticed,  saw  the  car,  it  had  for  some  time  been 
within  her  possible  vision,  and  was  much  closer  to  the 
place  of  accident  than  the  point  at  which  it  would  have 
been  possible  for  her  to  see  it  had  her  gaze  been  intently 
fixed  in  that  direction.    According  to  the  evidence,  the 


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BOYDEN,  Appellant,  v.  PHILA.  &  W.  C.  T.  CO.      139 
1919.]  Opinion  of  Court  below, 

two  witnesses  called  by  the  plaintiff  on  this  matter,  did 
not  stand  where  Alice  White  stood  when  she  saw  the 
car,  and  consequently  failed  to  found  their  deductions 
as  to  the  point  at  which  she  could  have  first  seen  it,  upon 
the  line  of  vision  which  she  had.  Counsel  for  plaintiff 
sought  to  cover  this  failure  by  testifying  that  he  visited 
the  place,  stood  where  Alice  White  said  she  stood,  and 
then  by  merely  looking,  unaided  by  anyone  else,  deter- 
mined where  she  could  have  first  seen  the  car.  We  think 
it  quite  clear  that  he  could  not  thus  have  definitely  de- 
termined where  she  could  have  first  seen  it,  even  if  Alice 
White  was  able,  which  is  not  probable,  to  show  him  pre- 
cisely where  she  stood. 

The  defendant  company  operates  a  reasonably  high 
speed  line  between  Philadelphia  and  West  Chester,  car- 
rying many  through  passengers  who  formerly  used  the 
steam  lines.  The  public  desires  and  needs  this  service 
and  to  furnish  it,  cars  must  be  run  at  quite  continuous 
and  considerable  speed  even  when  passing  crossings  con- 
tiguous to  the  frequent  little  villages  near  the  line.  Boy- 
den  had  lived  along  this  road  close  to  the  place  of  acci- 
dent for  many  years,  and  must  have  been  thoroughly 
conversant  with  the  speed  at  which  cars  were  run  down 
the  grade  on  which  the  accident  occurred.  There  was  no 
evidence  that  the  car  that  struck  him  was  running  un- 
usually fast,  faster  than  common,  and  the  only  improper 
conduct  contributing  to  the  accident,  proved  by  the  evi- 
dence, was  his  heedless  disregard  of  the  warning  whistle, 
failure  to  make  any  attempt  to  look,  and  thus  negligently 
committing  himself  to  this  crossing  with  a  slow  moving 
rather  unwieldy  outfit. 

Under  the  facts  in  this  case  it  is  idle  to  cite  on  the 
question  of  defendant's  negligence,  rules  of  conduct  laid 
down  by  the  courts  as  applicable  to  the  operation  of  ur- 
ban lines  where  cars  uniformly  are  run  at  comparatively 
low  speed,  stop,  or  are  subject  to  stop  at  the  end  of  each 
block,  and  where  the  crossings  are  almost  continuously 
occupied  with  pedestrians  and  other  traffic.    And  it  is 


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140      BOYDEN,  Appellant,  v.  PHILA.  &  W.  C.  T.  CO. 

Opinion  of  Court  below — Opinion  of  the  Court.  [264  Pa. 
equally  idle  here,  on  the  question  of  Boyden's  contribu- 
tory negligence,  to  cite  the  cases  in  which  all  the  facts 
were  present  which  warranted  a  finding  that  when  the 
injured  person  essayed  the  crossing,  he  was  justified  in 
believing  that  he  could  safely  cross  ahead  of  the  car,  and 
was  struck  because  the  car  was  run  at  unusually  high 
speed.  We  repeat,  as  was  said  on  directing  the  nonsuit, 
that  the  evidence  disclosed  no  negligence  on  defendant's 
part,  but  did  conclusively  convict  Boyden  of  negligence 
causing  the  accident. 
The  rule  to  take  off  the  nonsuit  is  dismissed. 

Error  assigned  was  refusal  to  take  off  nonsuit. 

W.  8.  Harris,  for  appellant. 

A.  M.  Holding,  for  appellee,  was  not  heard. 

Pbb  Cueiam,  March  10, 1919: 

This  judgment  is  affirmed  on  the  opinion  of  the  learned 
court  below  dismissing  the  motion  to  take  off  the  nonsuit. 


CarrelTs  Estate. 


Decedents9  estates — Widows — Exemption — Appraisement  —  Will 
— Election  to  take  under  will — Gifts  in  accordance  with  the  intes- 
tate law — Conversion  into  money — Act  of  June  7,  1917,  P.  L.  J$9, 
and  July  11, 1917,  P.  L.  755. 

1.  Where  a  man  dies  after  the  passage  of  the  Act  of  July  11, 
1917,  P.  L.  755,  which  amended  the  Act  of  June  7, 1917,  P.  L.  429, 
leaving  to  survive  him  a  widow  and  collateral  kin,  and  leaving  a 
will  hy  which  he  directed  his  estate  to  he  distributed  in  accordance 
with  the  intestate  laws,  and  by  which  he  directed  his  executrix, 
the  widow,  to  convert  into  money  all  his  real  and  personal  property, 
and  the  widow  elects  to  take  under  the  will,  the  court  will  refuse 
the  widow's  petition  for  the  appointment  of  appraisers  to  set  apart 
real  and  personal  property  to  the  value  of  $5,000;  but  the  dismissal 
of  the  petition  will  be  without  prejudice  to  the  right  of  the  widow 


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CARRELL  'S  ESTATE.  ]& 

1919.]  Syllabua— Arguments, 

to  enforce  her  claim  by  taking  credit  therefor  in  the  settlement  oj 
her  account  as  executrix,  and  urging  it  upon  final  distribution. 

2.  Such  a  case  is  not  one  of  intestacy,  and  therefore  the  acts  of 
June  7,  1917,  P.  L.  429,  and  'July  lly  1917,  P.  L.  755,  have  no  ap- 
plication, since  they  relate  solely  to  the  descent  and  distribution 
of  the  real  and  personal  property  of  persons  dying  intestate. 

3.  Where,  as  here,  the  widow  takes  in  money,  no  appraisement  is 
necessary. 

Argued  Feb.  10, 1919.  Appeal,  No.  282,  Jan.  T.,  1919, 
by  Maria  Carrell,  from  decree  of  O.  C.  Bucks  Co.,  dis- 
missing petition  for  appointment  of  appraisers  in  Estate 
of  Isaac  Carrell,  deceased.  Before  Brown,  C.  J.,  Stew- 
art, Frazbr,  Simpson  and  Kbphart,  J  J.   Affirmed. 

Petition  by  widow  for  appointment  of  appraisers.   Be- 
fore Ryan,  P.  J. 
The  court  dismissed  the  petition.   The  widow  appealed. 

Error  assigned  was  decree  dismissing  the  petition. 

Thomas  Ross,  with  him  George  Ross,  for  appellant. — 
The  decedent  died  intestate  as  to  the  disposition  of  his 
property. 

Under  the  disposing  portion  of  the  will,  appellant  is 
entitled  to  f  5,000  in  property  as  part  of  her  distributive 
interest  under  the  intestate  law :  Williams  v.  Williams, 
1  W.  N.  C.  54;  Dull's  Est.,  222  Pa.  208. 

To  deny  her  the  $5,000  is  to  curtail  the  power  of  testa- 
mentary disposition  which  the  legislature  intended  to 
preserve  to  testators :  Moore's  Est.,  50  Pa.  Superior  Ct. 
76;  Buckland's  Est.,  239  Pa.  608;  PurselFs  Est.,  244 
Pa.  407. 

Having  elected  to  take  under  the  will,  the  appellant  is 
strictly  within  the  words,  spirit  and  intent  of  the  act 
of  assembly:  Black  v.  Tricker,  59  Pa.  13. 

No  printed  brief  and  no  oral  argument  for  appellee. 

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142  CARRELL 'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

Opinion  by  Mb.  Justice  Stewabt,  March  10, 1919 : 
Isaac  Carrell,  a  resident  of  Bucks  County,  died  July  1, 
1918,  testate,  leaving  to  survive  him  a  widow,  this  appel- 
lant, but  no  issue,  his  nearest  of  kin  in  the  line  of  inherit- 
ance being  nephews  and  nieces.  By  his  will  duly 
proved,  after  directing  the  payment  of  his  just  debts,  he 
made  the  following  disposition  of  his  estate,  "I  give  and 
bequeath  to  my  beloved  wife,  Maria  Carrell,  the  Interest 
in  my  Estate  that  the  Intestate  Laws  of  the  State  of 
Pennsylvania  directs."  This  item  then  follows :  "I  give 
and  bequeath  to  my  nephews  and  nieces  their  interest  in 
my  estate,  share  and  share  alike."  He  appointed  the 
widow  executrix  of  the  will  giving  to  her  full  power  and 
authority  to  make  sale  of  his  real  estate.  In  due  time 
the  widow  filed  her  election  to  take  under  the  will,  and 
thereupon  she  presented  her  petition  to  the  orphans' 
court  setting  forth  that  as  widow  of  the  said  decedent 
she  claimed  the  benefit  of  the  Act  of  Assembly  of  June 
7, 1917,  which  gives  to  the  widow  of  an  intestate  $5,000 
of  real  and  personal  property  of  decedent's  estate  in  ad- 
dition to  her  $300  exemption,  and  that  she  had  desig- 
nated certain  real  and  personal  estate  which  she  demand- 
ed should  be  set  apart  to  her  of  the  value  of  $5,000.  The 
petition  prayed  that  the  court  appoint  two  appraisers  to 
set  apart  the  real  and  personal  property  she  had 
elected  to  take  to  the  value  of  $5,000  in  accordance  with 
the  provisions  of  the  act.  The  learned  judge  of  the 
orphans9  court  dismissed  the  petition  holding  that  the 
facts  as  set  forth  did  not  bring  the  case  within  the  class 
to  which  Section  2  of  the  Act  of  the  7th  of  June,  1917, 
P.  L.  429,  431,  referred.  The  appeal  is  from  this  order 
and  decree. 

The  act  in  question  is  entitled,  "An  Act  relating  to  the 
descent  and  distribution  of  the  real  and  personal  proper- 
ty of  persons  dying  intestate,  and  providing  for  the  re- 
cording and  registering  of  the  decrees  of  the  orphans' 
court  in  connection  therewith,  and  the  fees  therefor." 
Section  2  of  the  Act  as  amended  by  Act  of  11th  July, 

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CARRELL'S  ESTATE.  143 

1919.]  Opinion  of  the  Court 

1917,  P.  L.  755,  reads  as  follows:  " Where  such  intestate 
shall  leave  a  spouse  surviving  and  other  kindred,  but  no 
issue,  the  surviving  spouse  shall  be  entitled  to  the  real 
and  personal  estate,  or  both,  to  the  aggregate  value  of 
five  thousand  dollars,  in  addition,  in  the  case  of  a 
widow,  to  the  widow's  exemption  as  allowed  by  law; 
and  if  such  estate  shall  exceed  in  value  the  sum  of  five 
thousand  dollars,  the  surviving  spouse  shall  be  entitled 
to  the  sum  of  five  thousand  dollars  absolutely,  to  be 
chosen  by  him  or  her  from  the  real  or  personal  estate,  or 
both,  and  in  addition  thereto  shall  be  entitled  to  one-half 
part  of  the  remaining  real  and  personal  estate:  Provid- 
ed, that  the  provisions  of  such  clause  as  to  said  five 
thousand  dollars  in  value  shall  apply  only  to  cases  of 
actual  intestacy  of  husband  or  wife,  entire  or  partial, 
and  not  to  cases  where  the  surviving  spouse  shall  elect  to 
take  against  the  will  of  the  deceased  spouse."  It  does  not 
concern  us  to  inquire  into  the  purpose  or  effect  of  the 
amendment  to  the  Act  of  17th  of  June,  1917,  to  the  sec- 
tion above  recited ;  it  stands  without  relation  to  the  facts 
before  us.  The  argument  in  support  of  appellant's  con- 
tention, stated  briefly,  is,  that  inasmuch  as  the  will  makes 
the  same  distribution  of  the  estate  as  would  have  fol- 
lowed by  virtue  of  the  statute  had  the  husband  died  in- 
testate, it  results  that  there  is  an  actual  intestacy  and 
that  the  appellant  is  thus  brought  within  the  provisions 
of  the  act  that  awards  to  the  widow  of  an  intestate  the 
sum  of  |59000.  This  proposition  would  call  for  consider- 
ation if  a  proper  determination  of  the  case  in  hand  in 
any  way  depended  on  its  correct  determination,  but  it 
does  not  so  depend.  This  is  not  a  case  of  intestacy,  and 
since  the  Act  of  1917  relates  solely  to  the  descent  and 
distribution  of  the  real  and  personal  property  of  persons 
dying  intestate,  it  can  have  no  place  in  the  discussion, 
except  as  by  the  will  it  measures  the  bounty  given  by  the 
testator  to  the  several  beneficiaries  thereunder.  Here 
we  have  a  will  duly  proved,  unequivocal  and  unambig- 
uous in  its  terms,  so  plain  and  intelligible  in  its  several 


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144  CARRELL'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

parts  as  to  leave  no  room  for  controversy  as  to  the  testa- 
tor's intention  expressed  therein,  followed  by  the  widow's 
election  to  take  thereunder.  It  gives  to  the  widow  such 
interest  in  the  estate  as  the  intestate  laws  of  the  State 
direct ;  in  other  words,  such  interest  as  she  would  be  en- 
titled to  receive  in  case  he  were  to  die  intestate.  Where 
a  will  is  so  free  from  uncertainty  or  ambiguity  as  this,  it 
calls  for  no  interpretation;  it  could  not  have  been  more 
direct  had  the  provisions  been  followed  by  a  recital  or 
specification  of  the  preferences  given  by  law  to  the  widow 
in  cases  of  intestacy.  The  mere  fact  that  it  adopts  the 
fixed  measure  of  distribution  which  the  law  had  adopted 
in  cases  of  intestacy  is  without  significance  affecting  in 
any  way  its  exclusively  controlling  guidance.  The  Act 
of  1917  provides  the  method  to  be  followed  in  setting 
apart  to  the  widow  of  an  intestate  the  $5,000  in  value  of 
the  property,  but  makes  no  provision  for  an  ascertain- 
ment of  value  in  cases  where  the  claim  is  made  under  the 
will.  It  is  only  a  reasonable  and  fair  intendment  that 
when  testator  gave  to  his  widow  such  interest  in  his  es- 
tate as  the  intestate  laws  of  the  State  direct,  he  had  in 
contemplation  the  method  provided  by  the  intestate  laws 
for  the  admeasurement  of  the  interests,  but  that  is  not  a 
satisfactory  because  not  a  necessary  deduction  in  view  of 
the  fact  that  the  whole  purpose  of  the  act,  as  clearly  ex- 
pressed in  its  terms,  is  to  regulate  the  distribution  of 
property  of  persons  dying  intestate.  The  case  in  hand, 
as  we  have  said,  is  not  a  case  of  intestacy,  and  the  act 
therefore  has  no  relation  to  it,  and  we  can  find  no  suf- 
ficient warrant  for  applying  any  of  its  provisions  here. 
How  then  can  the  widow's  share  be  set  apart?  This 
question  suggests  another.  Why  does  it  need  to  be  set 
apart?  The  exceptional  circumstances  make  such 
proceeding  wholly  unnecessary.  In  ordinary  cases 
arising  under  a  widow's  claim  for  exemption,  the 
widow  may  enforce  her  claim  out  of  any  part  of  the  es- 
tate she  may  desire  to  take,  and  where  she  elects  to  take 
certain  articles  of  personal  property  or  specific  real 


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CARRELL  'S  ESTATE.  145 

1919.]  Opinion  of  the  Court 

estate,  an  appraisement  is  necessary  to  determine  the 
value  of  the  articles  selected,  and  upon  the  confirmation 
of  the  appraisement,  the  specific  property  she  had  elected 
to  take  is  set  apart  as  hers  from  out  of  the  estate  and 
vests  in  her  absolutely.  But  here  the  widow  has  no  right 
of  selection;  she  takes  in  money  or  not  at  all,  and  in 
such  case  an  appraisement  is  not  necessary :  Larrison's 
App.,  36  Pa.  130;  Baldy's  App.,  40  Pa.  328.  In  the  very 
recent  case  of  Hollinger's  Est.  (No.  1),  259  Pa.  72,  the 
question  arose  on  exceptions  to  an  adjudication  allow- 
ing the  surviving  husband,  who  had  elected  to  take 
against  the  will  of  the  deceased  wife,  the  f 5,000,  in  the 
distribution  of  the  wife's  estate,  notwithstanding  there 
had  been  no  appraisement.  That  case  differs  from  the 
one  in  hand  in  that  there  was  in  that  case  an  election  to 
take  against  the  will,  which  resulted  in  a  clear  intestacy 
so  far  as  concerned  the  husband,  and  the  procedure 
therein  was  necessarily  under  the  act  which  bestowed 
the  $5,000  on  the  surviving  spouse.  But  even  in  that 
case,  falling  strictly  within  the  provisions  of  the  act,  the 
earlier  cases  we  have  cited  are  referred  to  as  governing 
authorities  to  the  effect  that  when  the  election  is  to  take 
the  amount  of  the  exemption  in  cash  or  its  equivalent,  an 
appraisement  is  not  necessary,  and  it  is  there  said  that 
"this  doctrine  has  been  consistently  adhered  to  ever 
since."  The  Act  of  11th  July,  1917,  couples  in  the  same 
provisions  the  $300  widow's  exemption  under  the  earlier 
act  and  the  $5,000  additional  allowance  it  gives  to  the 
widow  of  intestates,  and  evidently  contemplates  one  ap- 
praisement to  include  both.  What  effect  this  act  has 
upon  the  provisions  of  the  earlier  Act  of  14th  April,  1851, 
with  respect  to  procedure  in  the  matter  of  a  widow's 
claim  for  $300,  is  not  in  the  line  of  our  present  inquiry, 
and  we  decide  nothing  with  respect  thereto.  We  only 
refer  to  the  practice  under  the  exemption  act  as  illustrat- 
ing the  futility  of  an  appraisement  where  money  alone 
can  be  taken  by  the  widow.  Whether  we  call  the  $300 
provision  an  exemption  or  inheritance,  by  parity  of  rea* 
Vol.  cclxiv— 10 


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146  CARRELL'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

son  it  would  seem  that  an  appraisement  of  money  could 
be  no  more  required  in  case  of  a  widow's  claim  for  the 
f 5,000  than  in  her  claim  for  the  |300  exemption;  more 
especially  should  this  be  so  when  the  right  to  claim  the 
$5,000  is  derived  from  the  will  and  is  a  devise  or  legacy 
as  the  case  may  be.  The  will  in  this  case  contains  this 
provision :  "I  direct  my  executrix  hereinafter  named  to 
sell  and  convert  into  money  all  my  estate,  real,  personal 
and  mixed,  and  for  that  purpose  I  do  hereby  give  and 
grant  to  my  said  executrix  full  power  and  authority  to 
make  sale  of  all  my  real  estate  wherever  situate  at 
either  public  or  private  sale."  Since  the  widow  has 
elected  to  take  under  the  will  the  provision  for  a  conver- 
sion of  the  estate  into  money  has  all  its  original  force 
as  to  her,  and  therefore  we  are  dealing  with  an  estate  to 
be  distributed  under  the  will  exclusively  as  money.  As 
legatee  the  widow  is  entitled  out  of  this  estate  to  retain 
and  receive  $5,300  and  no  appraisement  is  required  to 
establish  or  confirm  her  right  thereto.  She  has  suffi- 
ciently asserted  her  demand  in  the  present  proceeding, 
and  inasmuch  as  there  is  no  statutory  requirement  of  an 
appraisement  in  such  cases,  we  cannot  say  that  error  was 
committed  in  the  refusal  of  the  appellant's  petition  for 
the  appointment  of  appraisers.  We  therefore  affirm  the 
action  of  the  court  below  in  dismissing  the  petition,  but 
we  do  so  without  prejudice  to  the  right  of  appellant  to 
enforce  her  claim  by  taking  credit  therefor  in  the  settle- 
ment of  her  account  as  executrix  and  urging  it  upon  final 
distribution.  The  decree  is  affirmed ;  the  costs  of  the  ap- 
peal to  be  paid  out  of  the  estate. 


Iron  &  Glass  Dollar  Savings  Bank  v.  Wigman. 

Sheriff's  sale — Resale — Setting  aside  sale. 

1.  Where  the  owner  of  a  second  lien  on  a  properly  purchases 
the  property  at  a  sheriffs  sale,  and  is  prevented  by  a  rule  of  the 
fuel  administrator  as  to  the  operation  of  elevators,  from  reaching 


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IRON  &  GLASS  DOLLAE  SAV.  BANK  v.  WIGMAN.     147 

1919.]  Syllabus— Opnion  of  Court  below, 

with  his  attorney  the  sheriff's  office,  at  a  certain  hour  when  the 
purchase  money  was  to  be  paid,  and  the  property  is  sold  at  a  second 
sale,  the  first  purchaser  is  entitled  to  have  the  second  sale  set  aside, 
when  he  shows  that  he  had  money  with  him  to  pay  the  purchase 
price  when  he  tried  to  reach  the  sheriff's  office,  that  he  was  eighty- 
six  years  old,  that  he  was  delayed  by  reason  of  the  fuel  rule,  and 
that  he  had  entered  a  bond  with  the  sheriff  to  bid  $2,200  in  excess 
of  the  bid  at  the  second  sale,  if  another  sale  were  ordered;  the  first 
purchaser  to  reimburse  the  second  purchaser  his  expenses. 

2.  An  acknowledgment  of  a  sheriff's  deed  will  be  set  aside,  where 
it  appears  that  exceptions  to  the  sheriff's  sale  were  pending  when 
the  acknowledgment  was  made;  the  Act  of  April  22,  1905,  so  pro- 
vides. 

Argued  Feb.  11,  1919.  Appeal,  No.  27,  Oct.  T.,  1919, 
by  B.  C.  McClure,  Potter  Title  &  Trust  Co.,  W.  O.  Mc- 
Clure  and  C.  J.  Holleman,  from  order  of  C.  P.  Allegheny 
Co.,  Oct.  T.,  1918,  No.  190,  setting  aside  sheriffs  sale  in 
case  of  Iron  &  Olass  Dollar  Savings  Bank  of  Birming- 
ham v.  Gwendolen  P.  Wigman  and  William  H.  Wigman. 
Before  Brown,  C.  J.,  Stewart,  Frazbr,  Simpson  and 
Kbphart,  JJ.    Affirmed. 

Bule  to  set  aside  sheriff's  sale. 
Shafbr,  P.  J.,  filed  the  following  opinion: 
In  this  case  exceptions  were  filed  to  the  sheriff's  sale 
and  afterwards  a  deed  was  acknowledged  notwithstand- 
ing the  filing  of  these  exceptions,  and  the  exceptions  were 
then  renewed  to  the  acknowledgment  of  the  deed.  The 
Act  of  April  22, 1905,  regulating  sheriff's  deeds  provides 
in  section  four  that  no  deed  shall  be  acknowledged  pend- 
ing a  motion  to  set  aside  the  sale  on  exceptions  made  to 
its  confirmation.  This  puts  upon  the  sheriff  the  necessity 
of  ascertaining  before  he  acknowledges  a  deed  whether 
such  exceptions  are  pending  or  not,  and  the  acknowledg- 
ment must  therefore  be  set  aside  as  being  prematurely 
made.  The  exceptions  to  the  sale  are  founded  upon  this 
state  of  facts :  The  Iron  &  Glass  Dollar  Savings  Bank 
had  a  mortgage  of  f  10,000  on  the  property  in  question, 
which  was  a  first  lien  thereon,  and  William  Wigman,  the 
exceptant,  had  a  mortgage  for  f  6,000,  which  was  the  sec- 


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148     IRON  &  GLASS  DOLLAB  SAV.  BANK  v.  WIGMAN, 
Opinion  of  Court  below.  [264  Pa. 

ond  lien  on  this  property.  Upon  the  fi.  fa.  in  this  case 
issued  on  the  judgment  on  the  bond  accompanying  the 
first  mortgage,  the  property  was  sold  at  sheriffs  sale  on 
the  first  Monday  of  September,  1918,  to  William  Wig- 
man  for  f  12,800.  The  terms  of  the  sale  were  those  usual 
in  this  county  and  included  the  requirements  of  payment 
of  the  purchase  money  on  or  before  the  following  Friday 
at  ten  o'clock  a.  m.  Mr.  Wigman,  who  is  a  man  of  eighty- 
six  years  of  age,  went  from  his  home  on  the  South  Side  in 
Pittsburgh  on  the  morning  of  the  Friday  following  the 
return  day,  having  with  him  a  certified  check  for  ten 
thousand  odd  dollars,  being  enough  to  pay  the  first  mort- 
gage and  costs,  he  being  the  second  mortgagee  and  there- 
fore entitled  to  pay  the  balance  of  his  bid  with  his  mort- 
gage. He  endeavored  to  go  to  the  office  of  his  attorney, 
Mr.  W.  H.  Lemon,  in  the  Frick  building  next  to  the 
court  house,  for  the  purpose  of  having  him  go  with  him  to 
make  payment.  At  that  time,  under  the  orders  of  the 
United  States  fuel  administrator,  elevators  were  not 
started  in  the  Frick  building  and  other  office  buildings 
until  ten  o'clock,  and  there  was  a  very  large  number  of 
people  waiting  to  be  carried  up  in  the  elevator.  In  con- 
sequence, Mr.  Wigman  did  not  get  to  his  attorney's  office 
until  about  twenty  minutes  after  ten,  and  by  the  time  his 
attorney  reached  the  sheriff's  office,  or  the  office  of  Mr. 
McCreery,  the  attorney  for  the  plaintiff  in  the  writ,  it 
was  discovered  again  the  property  had  been  sold  for  f  12,- 
800.  The  exceptant  offers  to  bid  $  15,000  and  has  filed  a 
bond  with  the  sheriff  to  make  good  his  offer  if  the  prop- 
erty is  resold.  It  appears,  whether  the  purchase  at  the 
first  sale  was  originally  intended  to  be  so,  it  is  now  to 
be  treated  as  being  made  for  the  benefit  of  some  relative 
of  the  defendant  Gwendolen  P.  Wigman,  who  is  a  daugh- 
ter-in-law of  the  exceptant.  We  are  clearly  of  opinion 
that  it  would  be  a  gross  injustice  to  allow  this  sale  to 
stand  under  the  circumstances. 

It  appears  from  the  evidence  that  the  purchaser  at  the 
second  sale  procured  a  loan  from  the  Potter  Title  &  Trust 


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IRON  &  GLASS  DOLLAR  SAV.  BANK  v.  WIGMAN.  149 
1919.]  Opinion  of  Court  below — Opinion  of  the  Court 
Company  and  paid  to  the  sheriff  the  amount  of  his  bid. 
He  has,  therefore,  been  at  some  expense,  at  least  the  in- 
terest on  the  amount,  since  it  was  paid.  We  are  of  opin- 
ion that  the  exceptant  ought  to  pay  to  the  purchaser 
some  compensation  for  a  loss  which  he  would  otherwise 
incur.  We  are  of  opinion  that  the  sum  of  one  hundred 
dollars  is  sufficient  for  this  purpose.  The  sale  will  there- 
fore be  set  aside  provided  the  exceptant  pay  to  the  pro- 
thonotary  for  the  use  of  the  purchaser  the  sum  of  one 
hundred  dollars  within  one  week  after  notice  hereof. 

Error  assigned  was  in  setting  aside  the  sale. 

John  G.  Bane,  for  appellants,  cited:  Stroup  v.  Ray- 
mond, 183  Pa.  279;  Young's  App.,  2  P.  &  W.  380;  West- 
moreland Guarantee  B.  &  L.  Assn.  v.  Nesbit,  21  Pa.  150. 

W.  H.  Lemon,  with  him  J.  Rodgers  McOreery,  for  ap- 
pellees, cited:  Snyder  v.  Snyder,  244  Pa.  331;  Chase 
v.  Fisher,  239  Pa.  545;  Stroup  v.  Raymond,  183  Pa. 
279. 

Pbb  Curiam,  March  10,  1919 : 

This  appeal  is  dismissed,  at  the  costs  of  the  appellants, 
on  the  opinion  of  the  learned  president  judge  of  the  court 
below,  in  pursuance  of  which  the  sheriff's  sale  was  set 
aside. 


Federal  Sales  Co.  of  Philadelphia,  Appellant,  v. 

FarrelL 

Practice,  C.  P. — Affidavit  of  defense— Waiver— Set-off— Reply 
—Admissions — Appeals— Act  of  May  U,  1915,  P.  L.  iSS. 

1.  The  right  to  enter  a  rule  for  judgment  for  want  of  a  suf- 
ficient affidavit  of  defense,  will  not  be  held  to  be  waived  because 
of  plaintiff's  having  further  proceeded  in  the  cause  in  compliance 
with  the  requirements  of  an  act  of  assembly  or  rule  of  court. 

2.  Plaintiff  may  enter  a  rule  for  judgment  for  want  of  a  sufficient 
affidavit  of  defense  even  though  he  has  filed  a  reply  to  defendant's 
claim  of  set-off. 


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150     FEDERAL  SALES  CO.,  Appellant,  v.  PAERELL. 

Syllabus— Arguments.  [264  Pa. 

3.  Under  Sections  6  and  16  of  the  Act  of  May  14,  1915,  P.  L. 
488,  the  undisputed  facts  appearing  by  the  pleadings  are  admitted 
for  all  the  purposes  of  the  case,  with  the  same  effect  as  if  they  were 
embodied  in  the  statement  of  claim  itself. 

4.  Hence,  on  a  rule  for  judgment  for  want  of  a  sufficient  affidavit 
of  defense  the  admissions  of  plaintiffs  reply  will  be  considered. 

5.  It  is  only  in  clear  cases  that  this  court  will  reverse  the  court 
below  on  appeal  from  an  order  discharging  a  rule  for  judgment  for 
want  of  a  sufficient  affidavit  of  defense. 

Contracts — Written  contract — Omission — Evidence— Fraud,  etc. 
— Pleadings  and  proofs — Agency — Authority — Warranties. 

6.  A  written  contract  presumably  expresses  the  full  and  exact 
agreement  of  the  parties  in  regard  thereto,  and  hence  ordinarily 
great  strictness  of  pleading  and  proof  are  required  where  it  is  ad- 
mitted to  modify  or  reform  the  writing. 

7.  But  where  admittedly  the  writing  does  not  fully  express  the 
agreement  of  the  parties  in  regard  to  the  matter  under  consider- 
ation, the  same  strictness  of  pleading  and  proof  are  not  required. 

8.  It  is  not  necessary  to  aver  or  prove  that  something  was  omit- 
ted from  a  written  instrument  by  fraud,  accident  or  mistake,  where 
the  only  claim  is  that  it  is  attempted  to  be  used  in  violation  of  an 
express  agreement  made  to  induce  the  party  to  sign  it. 

9.  A  party  cannot  enforce  a  contract  induced  by  warranties,  and 
deny  the  authority  of  his  agent  to  make  them. 

Argued  Feb.  19, 1919.  Appeal,  No.  223,  Jan.  T.,  1919, 
by  plaintiff,  from  order  of  C.  P.  No.  3,  Philadelphia  Co., 
June  T.,  1918,  No.  3153,  discharging  rule  for  judgment 
for  want  of  a  sufficient  affidavit  of  defense  in  case  of 
Federal  Sales  Company  of  Philadelphia  v.  George  H. 
Farrell.  Before  Stewart,  Moschzisker,  Walling, 
Simpson  and  Ebphabt,  J  J.    Affirmed. 

Assumpsit  on  a  promissory  note. 
Rule  for  judgment  for  want  of  a  sufficient  affidavit  of 
defense. 

Error  assigned  was  in  discharging  titte  rule  for  judg- 
ment. 

Harold  Evans,  of  MaeCoy,  Evans,  Hutchinson  rd  Lew- 
is, for  appellant. — In  an  action  arising  under  a  written 
contract  containing  an  express  stipulation  that  there  is 


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PBDBEAL  SALES  CO.,  Appellant,  v.  FARRBLL.     151 
1919.]  Arguments — Opinion  of  the  Court. 

no  warranty,  guaranty  or  representation  as  to  the  goods 
other  than  those  contained  therein  the  defendant  cannot 
set  up  a  warranty  not  contained  in  the  contract :  Express 
Pub.  Co.  v.  Aldine  Press,  126  Pa.  347;  Scientific  Ameri- 
can Compiling  Department  v.  Creighton,  32  Pa.  Superior 
Ct.  140;  Kidgeway  Dynamo  &  Engine  Co.  v.  Penna. 
Cement  Co.,  221  Pa.  160;  S.  Morgan  Smith  Co.  v.  Mon- 
roe County  Water  Power  &  Supply  Co.,  221  Pa.  165; 
General  Motors  Truck  Co.  v.  Philadelphia  Paving  Co., 
248  Pa.  499;  Polsom  Seal  Est.  Co.  v.  Esmark,  38  Pa. 
Superior  Ct.  580. 

The  affidavit  of  defense  is  insufficient  because  it  is 
vague  and  indefinite  and  does  not  definitely  and  par- 
ticularly set  forth  a  contemporaneous  oral  guaranty  nor 
aver  any  authority  on  the  part  of  the  agents  of  the  plain- 
tiff who  made  it:  Gould  v.  Gage,  118  Pa.  559;  Lowry  v. 
Eoy,  238  Pa.  9;  Baugh  v.  White,  161  Pa.  632;  General 
Electric  Co.  v.  Camden  Iron  Works,  239  Pa.  411;  Fol- 
som  Real  Estate  Co.  v.  Esmark,  38  Pa.  Superior  Ct.  580; 
Order  of  Unity  v.  McCann,  57  Pa.  Superior  Ct.  61 ;  Villar 
v.  Coupe,  62  Pa.  Superior  Ct.  422. 

James  R.  Wilson,  for  appellee. — The  manufacturer's 
warranty  inserted  in  the  original  proposal  was  omitted 
from  the  final  lease  agreement  by  mistake :  Lee  Holland 
&  Co.  v.  Taylor,  154  Pa.  95;  Knerr  v.  Bradley,  105  Pa. 
190;  Potter  v.  Grimm,  248  Pa.  440. 

The  affidavit  sufficiently  sets  forth  a  contemporaneous 
oral  agreement:  Greenawalt  v.  Kohne,  85  Pa.  369; 
Croyle  v.  Cambria  L.  &  I.  Co.,  233  Pa.  310;  Eenshaw  v. 
Gans,  7  Pa.  117;  Colt  v.  Diffenbach,  60  Pa.  Superior 
Ct.  192. 

Opinion  by  Mb.  Justice  Simpson,  March  10, 1919 : 

Plaintiff  brought  suit  upon  a  promissory  note  for  f  1,- 

597;  defendant  filed  an  affidavit  of  defense  and  claim  of 

set-off  growing  out  of  the  transaction  in  which  the  note 

was  given;  plaintiff  filed  a  reply  to  the  claim  of  set-off, 

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152     FEDERAL  SALES  CO.,  Appellant,  v.  FAREELL. 

Opinion  of  the  Court.  [264  Pa. 

and  nearly  a  month  later  entered  a  rule  for  judgment  for 
want  of  a  sufficient  affidavit  of  defense.  The  court  below 
discharged  the  rule,  whereupon  plaintiff  excepted  and 
took  this  appeal. 

It  was  suggested  on  the  argument  that  plaintiff's  reply 
operated  as  a  waiver  of  its  right  to  judgment  for  want 
of  a  sufficient  affidavit  of  defense.  It  is  true  we  have 
always  implied  a  waiver  from  any  voluntary  action  of 
plaintiff  looking  to  putting  a  case  at  issue;  but  in  order 
to  have  that  effect  the  action  must  be  voluntary.  Per- 
haps the  first  case  dealing  with  the  general  subject  is 
Gregg  v.  Meeker,  4  Binney  428,  and  the  latest  Borden- 
town  Banking  Company  v.  Restein,  214  Pa.  30.  The 
former  arose  under  the  affidavit  of  defense  agreement  of 
the  lawyers  of  Philadelphia  County  (3  W.  N.  C.  567), 
and  the  latter,  and  all  the  intermediate  cases,  under  the 
acts  of  assembly  relating  to  affidavits  of  defense.  In 
Superior  National  Bank  v.  Stadelman,  153  Pa.  634,  638, 
we  said :  "This  long  established  practice  it  is  not  desira- 
ble, nor  is  it  intended,  to  disturb."  In  Horner  v.  Horner, 
145  Pa.  258,  however,  we  held  no  waiver  could  be  im- 
plied if  plaintiff's  action  was  compulsory,  made  so  in 
that  case  by  a  rule  of  court.  By  Section  15  of  the  Prac- 
tice Act  of  May  14, 1915,  P.  L.  483,  it  is  provided :  "When 
the  defendant  in  his  affidavit  of  defense  sets  up  a  set-off 
or  counterclaim  against  the  plaintiff,  the  plaintiff,  with- 
in fifteen  days  from  the  day  of  service  of  the  affidavit  of 
defense  upon  him,  shall  file  an  answer  under  oath,  which 
shall  be  called  'Plaintiff's  Keply.'"  If  none  be  filed, 
then  under  Section  16  plaintiff  is  debarred  from 
thereafter  disputing  the  averments  of  the  affidavit  of  de- 
fense and  set-off.  This  brings  the  case  within  the  prin- 
ciple of  Horner  v.  Horner,  supra,  and  no  waiver  arises, 
especially  as  by  Section  17  no  time  is  prescribed 
within  which  a  rule  for  judgment  must  be  taken. 

It  was  suggested  on  the  other  side  that  admissions  in 
plaintiff's  reply  could  not  be  considered  on  the  rule  for 
judgment.    This  also  is  a  mistake.    It  would  be  strange 


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FEDEBAL  SALES  CO.,  Appellant,  v.  PARRELL.  153 
1919.]  Opinion  of  the  Court 

if  a  party  could  obtain  summary  judgment  notwith- 
standing his  admissions  of  record,  if  upon  a  trial  those 
admissions  would  prevent  or  limit  the  recovery.  The 
well-settled  rule  that  judgment  can  be  entered  for  want 
of  a  sufficient  affidavit  of  defense  only  in  clear  cases,  also 
defeats  the  contention;  for  antagonistic  admissions  of 
record  may  make  the  case  anything  but  clear.  It  is  no 
answer  to  say,  a  rule  for  judgment  is  in  effect  a  special 
demurrer,  for  final  judgment  thereon  would  not  be  given 
in  favor  of  demurrant  if  he  had  solemnly  admitted  of 
record  facts  which  showed  he  was  not  entitled  thereto. 
Under  Sections  6  and  16  of  the  Act  of  1915,  the  undis- 
puted facts  appearing  by  the  pleadings,  are  admitted  for 
all  the  purposes  of  the  case,  and  hence  the  admissions  of 
the  reply  must  be  considered  with  the  same  effect  as  if 
they  were  embodied  in  the  statement  of  claim  itself. 

On  an  appeal  from  an  order  discharging  a  rule  for 
judgment  for  want  of  a  sufficient  affidavit  of  defense,  we 
never  reverse  unless  the  right  to  judgment  is  clear :  Grif- 
fith v.  Sitgreaves,  81  Pa.  378;  Hassam  Paving  Co.  v. 
Stipp,  249  Pa.  94,  97.  In  the  first  case  we  said:  "Such 
writs  should  be  confined  to  plain  errors  of  law.  In  doubt- 
ful cases  and  especially  in  those  requiring  broad  inquiry 
into  facts,  where  the  court  refuses  judgment,  the  matter 
in  controversy  should  go  to  the  jury  as  the  proper  tri- 
bunal to  decide  the  cause  under  proper  instructions  from 
the  court" ;  and  in  JEtna  Insurance  Company  v.  Confer, 
158  Pa.  598,  604 :  "It  must  be  a  very  plain  case  of  error 
in  law,  if  we  sustain  appeals  in  such  cases  as  this,  from 
the  decree  of  the  common  pleas  discharging  the  rule." 

It  is  true  a  party  who  sets  up  a  contemporaneous  parol 
agreement,  varying  the  terms  of  a  written  instrument 
sued  or  defended  upon,  has  a  heavy  burden  to  carry,  and 
must  aver  any  alleged  omission  was  the  result  of  fraud, 
accident  or  mistake ;  but  it  is  equally  true  no  such  re- 
quirement exists  where  the  attempt  is  to  use  the  writing 
in  violation  of  a  collateral  promise  whereby  the  party's 
signature   was  obtained  to  the  instrument:   Gandy  v. 


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154     FEDERAL  SALES  CO.,  Appellant,  v.  FABRELL. 

Opinion  of  the  Court.  [264  Pa. 

Weckerly,  220  Pa.  285 ;  Noel  v.  Kessler,  252  Pa.  244.  So, 
too,  if  admittedly  the  written  instrument  does  not  con- 
tain the  whole  of  the  contract  between  the  parties,  in 
regard  to  the  matter  under  consideration,  the  same  strict 
requirements  are  not  applied.  Thus  we  held  in  Eeal 
Estate  Title  Insurance  &  Trust  Company's  App.,  125 
Pa.  549,  a  written  instrument  may  be  reformed  on  the 
unsupported  testimony  of  one  witness,  if  there  is  no 
countervailing  evidence;  and  in  Morrish  v.  Morrish,  262 
Pa.  192, 198,  a  plaintiff  may  prove  a  trust  arising  out  of 
a  conveyance  by  a  deed  absolute  on  its  face,  if  defendant 
admits  there  was  a  trust  of  some  character.  The  reason 
for  the  rule  is  that  a  written  instrument  is  presumed  to 
contain  the  full  and  exact  agreement  of  the  parties  there- 
to, but,  when  admittedly  it  does  not,  cessante  ratione 
legis  cessat  ipsa  lex. 

In  the  light  of  the  foregoing  principles,  we  cannot  say 
plaintiff's  right  to  recover  is  clear,  and  hence  the  rule  for 
judgment  was  properly  discharged.  The  promissory 
note  sued  on  was  given  admittedly  in  the  course  of 
a  transaction  resulting  in  the  leasing  of  four  automobile 
trucks  by  four  written  agreements.  The  total  amount  of 
rent  to  be  paid  is  exactly  the  value  of  the  trucks,  as 
stated  in  the  agreements,  yet  nothing  is  said  therein  as 
to  what  is  to  become  of  the  trucks  after  all  the  rent  is 
paid.  Defendant  says  the  trucks  were  then  to  become 
his  property,  and  the  clause  in  regard  thereto  was  omit- 
ted from  the  agreements  by  mistake.  Plaintiff  does  not 
deny  this.  Defendant  says  he  was  induced  to  enter  into 
the  agreements  by  certain  oral  warranties  made  by 
"plaintiff's  agents  Biddle  and  Michel,"  which  also  were 
omitted  by  mistake.  Plaintiff  does  not  deny  the  agency, 
but  avers  only  that  neither  "its  agents,  Biddle  and 
Michel,  or  any  other  of  its  agents"  made  any  other  war- 
ranties "than  those  contained  in  the  said  leases."  The 
leases,  however,  contained  no  warranties;  yet  "plaintiff 
admits  that,  partly  in  fulfillment  of  its  guarantee  and 
warranty,"  it  repaired  defects  in  said  trucks  many 


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FEDERAL  SALES  CO.,  Appellant,  v.  FAERELL.     155 
1919.]  Opinion  of  the  Court 

times,  defendant  says  fifty-one  and  plaintiff  does  not 
specifically  deny  the  number.  The  difference  between 
the  parties  on  the  question  of  warranties,  therefore,  is 
that  defendant  avers  those  set  forth  in  the  affidavit  of  de- 
fense, and  plaintiff  claims,  and  its  counsel  frankly  ad- 
mits, its  liability  under  what  is  known  as  a  "manufac- 
turer's warranty,"  although  it  is  not  set  forth  in  the 
written  agreements.  Plaintiff  also  denies  that  its  agents, 
Biddle  and  Michel,  had  any  authority  to  make  any  other 
warranty,  and  calls  attention  to  the  fact  that  the  affidavit 
of  defense  does  not  aver  such  authority;  but,  if  the  con- 
tract was  induced  by  those  warranties,  as  we  must  as- 
sume to  be  true  on  a  rule  for  judgment  for  want  of  a 
sufficient  affidavit  of  defense,  it  is  a  matter  of  indiffer- 
ence whether  or  not  the  agents  had  such  authority,  for 
plaintiff  cannot  enforce  the  contract  induced  by  the 
warranties,  and  deny  the  right  to  make  them:  Singer 
Manufacturing  Co.  v.  Christian,  211  Pa.  534.  Defend- 
ant avers  breaches  of  even  the  "manufacturer's  war- 
ranty," which  plaintiff  denies;  and  the  former  says  "the 
difference  between  the  price  paid  for  the  machines  and 
the  value  of  the  machines  at  the  time  of  delivery"  was 
f 2,500;  and  further  that  he  lost  f 2,000,  in  not  having 
the  use  of  the  trucks  while  they  were  being  repaired,  be- 
cause of  defects  of  construction.  We  need  only  add,  as 
was  said  in  Comegys  v.  Davidson,  154  Pa.  534,  quoted 
and  approved  in  Lengett  v.  Chaninel,  205  Pa.  280 :  "We 
will  not  discuss  or  presume  to  decide  the  merits  of  the 
present  case.  That  can  only  be  determined  when  all  the 
facts  are  known." 

The  order  of  the  court  below  is  affirmed. 


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156  BORMAN,  Appellant,  v.  UNITED  M.  R.  &  IMP.  CO. 

Syllabus— Statement  of  Facts.  [264  Pa. 


Borman,  Appellant,  v.  United  Merchants  Realty  & 
Improvement  Co. 

Negligence — Landlord  and  tenant — Stairway — Cause  of  action 
— Pleading — Demurrer. 

In  an  action  to  recover  damages  for  personal  injuries,  the  state- 
ment of  claim  averred  that  the  defendant  was  a  lessee  of  a  build- 
ing used  for  business  purposes,  and  that  all  the  rooms  were  sublet 
to  several  tenants  occupying  them;  that  a  way  of  access  to  the 
upper  floors  was  provided  by  an  entrance  from  the  front  by  a 
passage  between  two  of  the  stores  on  the  street,  leading  into  an 
open  area  way  where  there  was  a  stairway  to  the  upper  floors ;  that 
a  tenant  of  one  of  the  stores,  by  permission  of  defendant,  construct- 
ed a  stairway  from  the  area  to  the  cellar  underneath  his  store  for 
his  convenience,  closing  it,  however,  against  general  use  by  a  door 
in  the  area  thus  shutting  it  off;  that  about  six  o'clock  of  a  Febru- 
ary evening,  plaintiff  having  occasion  to  visit  a  tenant  on  the  sec- 
ond floor  entered  the  open  area,  and  in  attempting  to  And  the  stair- 
way leading  up,  was  misled  by  a  light  above  the  transom  of  the 
door  leading  into  the  cellar  way,  entered  this  and  fell  down  the 
stairs  and  was  injured.  The  statement  Sid  not  show  the  relative 
position  of  the  two  stairways,  or  the  character  of  the  door  to  the 
cellarway,  or  whether  there  was  a  door  to  the  other  stairway. 
There  was  no  averment  that  the  entrance  to  the  cellarway  was  im- 
properly located,  designed  or  constructed.  Held,  (1)  that  defend- 
ant was  not  responsible  for  the  accident;  (2)  that  there  was  no 
duty  upon  him  to  maintain  a  danger  sign,  as  he  was  out  of  posses- 
sion ;  (3)  that  the  averments  of  the  statement  showed  no  cause  of 
action  and  (4)  that  judgment  was  properly  entered  for  defendant 
on  an  affidavit  of  defense  in  the  nature  of  a  demurrer. 

Argued  Feb.  24, 1919.  Appeal,  No.  256,  Jan.  T.,  1919, 
by  plaintiff,  from  order  of  O.  P.  Lackawanna  Co.,  Jan. 
T.,  1918,  No.  642,  entering  judgment  for  defendant  in 
case  of  Rudolph  Borman  v.  United  Merchants  Realty  & 
Improvement  Company.  Before  Brown,  C.  J.,  Stew- 
art, Moschziskbr,  Frazbr  and  Kbphart,  JJ.   Affirmed. 

Trespass  for  negligence. 

Rule  for  judgment  for  want  of  a  sufficient  affidavit  of 
defense  in  nature  of  demurrer. 


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BORMAN,  Appellant,  v.  UNITED  M.  R.  &  IMP.  CO.  157 
1919.]  Statement  of  Facts. 

The  statement  of  claim  was  as  follows : 

"1.  On  the  12th  day  of  February,  1916,  the  defendant 
company  was  the  lessee  of  a  certain  building  situate  at 
the  corner  of  Spruce  street  and  Washington  avenue  in 
the  City  of  Scranton. 

"2.  The  said  building  was  a  three-story  frame  build- 
ing and  basement.  The  ground  floor  of  the  said  building 
was  and  is  sub-divided  into  stores,  two  of  said  stores 
fronting  on  Washington  avenue,  and  six  stores  fronting 
on  Spruce  street.  The  second  and  third  floors  were  sub- 
let by  the  said  defendant  company  to  various  tenants, 
who  used  the  said  second  and  third  floors  for  office  pur- 
poses. 

"3.  An  entrance  to  the  upper  floors  of  the  building  was 
furnished  by  the  said  defendant  on  the  Spruce  street  side 
of  the  building,  which  entrance  was  situate  between  two 
of  the  stores  situate  on  the  said  Spruce  street  side. 

"4.  On  the  aforesaid  day  and  date  a  doorway  was 
maintained  on  the  Spruce  street  side  of  the  building, 
which  doorway  was  situate  between  the  windows  front- 
ing upon  the  two  stores  upon  the  westerly  end  of  the 
Spruce  street  side  of  the  building.  The  door  in  this  door- 
way, when  open,  led  into  an  areaway  or  space  wherein 
was  placed  a  stairway  or  ladder  which  led  into  the  cel- 
larway  between  one  of  the  said  stories. 

"5.  On  the  aforesaid  day  and  date,  the  rooms  immedi- 
ately above  the  said  doorway  described  above  were  oc- 
cupied by  a  dentist. 

"6.  The  door  and  doorway  leading  into  the  cellar  was 
constructed  by  a  tenant  of  the  defendant  to  whom  the 
defendant  had  sublet  one  of  the  stores  and  the  cellar 
underneath  the  said  store.  The  said  door  and  doorway 
were  built  by  the  said  tenant  with  the  express  consent 
and  permission  of  the  defendant  and  has  at  all  times  been 
maintained  in  the  condition  in  which  it  was  maintained 
on  the  day  and  date  of  this  accident  with  the  express  con- 
sent and  permission  of  the  defendant. 


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168  BORMAN,  Appellant,  v.  UNITED  M.  R.  &  IMP.  CO. 

Statement  of  Facto— AigumMLfc.  [264  Pa. 

"7.  On  the  aforesaid  day  and  date,  the  plaintiff  herein, 
at  about  six  o'clock  in  the  evening,  desiring  to  go  to  the 
dentist's  office  herein  described,  situate  in  the  said  build- 
ing, and  being  unfamiliar  with  the  premises,  attempted 
to  find  the  entrance  leading  to  the  upstairs  of  the  said 
building.  A  light  was  then  burning  in  a  transom  which 
was  located  above  the  door  hereinbefore  described  as 
situate  between  the  two  stores  of  the  most  westerly  end 
of  the  Spruce  street  side  of  the  building,  and  the  plaintiff 
was  then  and  there  misled  into  the  belief  that  the  said 
doorway  was  a  doorway  leading  to  the  upstairs  entrance 
to  the  building. 

"8.  The  said  building  was  so  constructed  and  main- 
tained and  the  entrance  to  the  said  building  was  so  con* 
structed  and  maintained  that  the  said  doorway  leading 
into  the  cellar,  into  which  the  plaintiff  fell,  was  appar- 
ently the  doorway  leading  to  the  upstairs  entrance  to  the 
building.  The  said  doorway  leading  into  the  basement 
was  so  situate  with  reference  to  the  stores  and  entrance 
on  the  Spruce  street  side  of  the  building  that  it  would 
clearly  mislead  the  ordinary  person  into  the  belief  that 
it  was  a  doorway  leading  to  the  upstairs  entrance  to  the 
said  building. 

"9.  The  plaintiff,  upon  opening  the  door,  attempted 
to  enter  and  immediately  fell  into  the  cellar  of  the  said 
building. 

"10.  As  a  result  of  the  fall  the  plaintiff  received  in- 
juries," etc. 
The  court  entered  judgment  for  defendant. 

Error  assigned  was  the  judgment  of  the  court. 

R.  L.  Levy,  with  him  Cornelius  Comegys,  for  appellant. 

Reese  E.  Harris,  of  Knapp,  O'Malley,  Hill  &  Harris, 
for  appellee. — The  plaintiff's  statement  of  claim  was  de- 
fective in  substance,  failing  to  aver  facts  which  if  true, 


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BORMAN,  Appellant,  v.  UNITED  M.  R.  &  IMP.  00.  159 
1919.]  Axgumente— Opinion  of  the  Court. 

would  constitute  a  cause  of  action  against  the  defendant : 
Towt  v.  Phila.,  173  Pa.  314;  Bears  v.  Ambler,  9  Pa.  193; 
Wunder  v.  McLean,  134  Pa.  334;  Lindstrom  v.  Pennsyl- 
vania Co.,  212  Pa.  391;  Chroust  v.  Acme  Building  &  L. 
Assn.,  214  Pa.  179. 

The  statement  fails  to  set  forth  facts  which  show  any 
causal  connection  between  the  plaintiff's  injury  and  any 
negligence  averred. 

Opinion  by  Mb.  Justice  Stbwabt,  March  10, 1919: 
The  defendant  company  is  the  lessee  of  a  three-storied 
building  in  the  City  of  Scranton  devoted  to  business  pur- " 
poses,  the  lower  floor  of  the  building  is  used  for  store 
rooms,  of  which  there  are  several,  the  upper  floors  being 
used  for  offices  of  various  kinds;  all  the  rooms  are  sub- 
let by  the  defendant  company  to  the  several  tenants  oc- 
cupying them.  A  way  of  access  to  the  upper  floors  is 
provided  by  an  entrance  from  the  front  of  the  building, 
between  two  of  the  storerooms,  leading  into  an  open  area 
or  space  where  there  is  a  stairway  leading  up.  The  ten- 
ant of  one  of  these  storerooms  obtained  from  the  defend- 
ant company,  his  lessor,  permission  to  construct  a  stair- 
way leading  from  this  open  area  to  the  cellar  under  his 
store  for  greater  convenience,  closing  it  however  against 
general  use  by  a  door  in  the  area  thus  shutting  it  off.  At 
about  six  o'clock  on  the  evening  of  February  12,  1916, 
*  the  plaintiff  having  occasion  to  visit  a  dentist  whose  of- 
fice was  on  the  second  floor  of  this  building  entered  the 
open  area  from  which  the  stairway  led  to  the  upper 
floor.  In  attempting  to  find  the  stairway  leading  up  he 
was  misled  by  a  light  above  the  transom  of  the  door  lead- 
ing into  the  cellarway,  and  supposing  that  to  be  the  door- 
way to  the  stairway  leading  up,  he  entered  it  with  the 
result  that  he  was  precipitated  to  the  cellar  and  thereby 
sustained  the  injuries  of  which  he  complains  and  for 
which  he  seeks  to  recover  damages  in  his  action  against 
the  defendant  company.  The  defendant's  affidavit  of  de- 
fense was  in  effect  a  demurrer  to  plaintiff's  statement  of 


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160  BORMAN,  Appellant,  v.  UNITED  M.  R.  &  IMP.  CO. 

Opinion  of  the  Court.  [264  Pa. 

the  cause  of  the  action.  It  was  sustained  by  the  learned 
court  and  judgment  accordingly  was  entered  for  the  de- 
fendant.   The  appeal  is  from  the  judgment  so  entered. 

Any  one  of  the  several  reasons  given  by  the  learned 
judge  who  heard  the  case  in  his  opinion  filed  would  in 
itself  be  a  sufficient  vindication  of  his  conclusion.  Take 
the  first :  admitting  the  trespass,  where  arises  liability 
on  part  of  the  defendant  as  landlord  therefor?  The  court 
in  discussing  this  feature  of  the  case  uses  this  language: 
"The  tenant  no  doubt  could  lawfully  have  a  private 
entrance  from  the  street  to  his  cellar  and  there  is  noth- 
ing inherent  in  either  its  location  or  design  that  would 
stamp  it  as  a  nuisance  per  se.  Hence  it  is  not  apparent 
how  the  landlord  could  incur  any  responsibility  by  mere 
force  and  effect  of  his  consent  to  the  addition  of  such 
improvement.  It  is  clear  enough  that  the  liability,  if 
any,  must  be  traced  to  the  breach  of  some  resulting  duty 
with  respect  to  the  safeguarding  the  public  who  might 
thereafter  have  occasion  to  visit  the  building.  Prima 
facie  this  would  devolve  upon  the  tenant  as  he  was  at 
all  times  in  possession,  and  there  is  nothing  in  the  plead- 
ings to  overcome  the  presumption  that  his  possession  was 

exclusive It — the  statement  of  cause  of  action — 

falls  short  of  showing  any  right  of  control  in  the  land- 
lord in  respect  to  the  maintenance  of  a  danger  sign, 
notice  to  keep  out  or  the  like,  even  if  it  be  conceded  that 
such  warning  was  called  for."  This  is  a  correct  view 
of  the  law,  and  to  it  this  may  be  added,  that  the  state- 
ment falls  short  equally  of  showing  circumstances  from 
which  the  law  would  infer  any  duty  on  the  part  of  the 
landlord  to  maintain  a  danger  sign,  notice  to  keep  out  or 
the  like. 

As  to  the  other  averment,  that  the  said  doorway  lead- 
ing into  the  cellar  was  so  placed  with  reference  to  the 
stores,  and  entrance  on  the  Spruce  street  side  of  the 
building,  that  it  would  clearly  mislead  an  ordinary  per- 
son into  the  belief  that  it  was  a  doorway  leading  to  the 
upstairs  entrance  to  the  building,  the  court  well  says, 


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BOEMAN,  Appellant,  v.  UNITED  M.  R.  &  IMP.  CO.  161 
1919.]  Opinion  of  the  Court 

"This  conclusion  may  be  well  founded  in  the  mind  of  the 
plaintiff,  but  having  regard  to  the  pleadings  themselves, 
and  these  alone,  one  would  be  at  a  loss  to  point  out  the 
specific  reasons  why  the  conditions  were  calculated  to 
mislead.  Where  was  the  entrance  to  the  upstairs  with 
reference  to  that  connected  with  the  cellar?  Was  that 
also  closed  by  a  door,  and  if  so,  how  did  they  resemble 
each  other?  Of  what  description  is  the  door  which  lured 
the  plaintiff  to  his  undoing?"  This  again  is  a  complete 
answer  to  the  objection  urged  and  sufficient  in  itself  to 
justify  the  action  of  the  court. 

It  is  complained  that  the  court  decided  adversely  to 
the  main  facts  pleaded,  and  then  disposed  of  the  case 
upon  the  facts  thus  found  and  not  upon  the  facts 
pleaded.  This  is  an  entire  misapprehension.  The  com- 
plaint is  directed  against  the  remark  by  the  court  in  its 
reference  to  the  entrance  from  the  street  to  the  cellar 
where  he  says  "there  is  nothing  inherent  in  its  location 
or  design  that  would  stamp  it  as  a  nuisance  per  se." 
There  is  no  averment  anywhere  in  the  statement  that  the 
entrance  was  improperly  located,  designed  or  construct- 
ed, and  not  a  single  fact  was  averred  in  connection  there- 
with that  would  have  warranted  a  finding  of  the  jury 
that  the  entrance  or  cellarway  was  wanting  in  either 
respect  The  trouble  was,  not  that  the  court  found  the 
fact,  but  that  the  pleadings  were  wholly  silent  as  to  the 
facts  upon  which  the  counsel  based  their  conclusion  that 
the  entrance  was  a  nuisance  per  se. 

The  appellant  had  ample  opportunity  to  apply  for 
leave  to  file  an  amended  statement.  This  he  failed  to  do, 
and  now  asks  for  a  reversal  of  the  judgment  so  that  he 
may  have  further  opportunity  to  this  end.  It  is  enough 
to  say  that  this  affords  no  sufficient  ground  for  reversal, 
and  we  may  add,  that  in  the  view  we  take  of  the  law  of 
the  case,  it  would  avail  the  appellant  nothing  were  it  to 
be  granted. 

The  judgment  is  affirmed. 

Vot.  cclxiv— 11 

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162  PITTSBURGH  &  L.E.R.R.  Co.,  Appel.,  v.  S.  S.  R.  R.  CO. 

Syllabus.  [264  Pa. 


Pittsburgh  &  Lake  Erie  E.  R.  Co.,  Appellant,  v. 
South  Shore  R.  R.  Co. 

Railroads — Rates — Schedules — Interstate  commerce — Intrastate 
commerce — Quantum  meruit — Pennsylvania  Public  Service  Com- 
mission— Interstate  Commerce  Commission — Jurisdiction — Act  of 
Congress  of  June  29, 1906. 

1.  Under  the  Act  of  Congress  of  June  29, 1906,  relating  to  inter- 
state commerce,  the  interstate  carrier  can  neither  recover  freight 
charges  nor  pay  the  owner  any  allowance  for  services  in  connection 
with  such  transportation,  except  as  provided  in  schedules  previously 
filed. 

2.  A  railroad  company  owning  a  short  line  of  tracks,  which  is  a 
mere  plant  facility  to  a  large  steel  company,  engaged  in  the  work 
of  shifting  and  placing  cars  received  from  a  railroad  company 
operating  interstate  traffic,  cannot  recover  compensation  from  such 
company  for  shifting  interstate  cars,  where  no  schedule  of  rates 
has  been  promulgated  as  provided  by  the  Act  of  Congress. 

3.  Where  the  two  companies  had  entered  into  an  agreement  that 
the  work  of  shifting  cars  should  be  paid  for  in  accordance  with  a 
schedule  fixed  by  the  line  carrier,  until  the  matter  should  be  ad- 
justed by  the  Interstate  Commerce  Commission,  and  it  appears  that 
the  line  carrier  cancelled  the  agreement  before  the  schedule  was 
ever  called  to  the  attention  of  the  commission,  and  that  the  schedule 
was  for  rates  less  than  the  value  of  the  services,  such  cancellation 
does  not  oust  the  jurisdiction  of  the  commission,  which  might  still 
determine  the  validity  of  the  cancellation,  and  pass  upon  the  ques- 
tion of  the  allowance  of  past  transactions. 

4.  In  case  of  cars  received  from  the  line  carrier,  which  were  en- 
gaged in  merely  State  traffic,  the  agreement  between  the  two  com- 
panies did  not  oust  the  jurisdiction  of  the  State  courts,  and  re- 
covery could  be  had  on  a  quantum  meruit  against  the  line  carrier 
as  to  such  cars  where  payments  made  had  been  at  the  schedule  rate 
which  was  less  than  the  actual  cost  of  the  services. 

5.  If  the  shifting  company  applies  to  the  Pennsylvania  Public 
Service  Commission  to  annul  the  cancellation  of  the  agreement, 
and  to  allow  it  a  fair  compensation  for  services  rendered  in  inter- 
state traffic  subsequent  to  the  date  when  the  Public  Service  Act  went 
into  effect,  and  such  application  is  pending  at  the  time  a  case  is 
tried  between  the  two  companies  in  which  the  shipping  charges  is 
the  question  at  issue,  the  shifting  company  is  precluded  from  re- 


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PITTSBURGH  &  L.E.R.B.  Co.,  Appel.,  v.  S.  S.  R.  R.  CO.  163 

1919.]  Syllabus— Arguments. 

covery  therein  as  to  so  much  of  the  claim  as  may  be  disallowed  by 

the  commission. 

6.  In  such  a  case,  where  no  distinction  has  been  made  at  the 
trial  between  interstate  and  intrastate  traffic,  and  a  verdict  is  ren- 
dered in  favor  of  the  shifting  company  for  the  full  amount  of  its 
claim  on  both  kinds  of  traffic  and  for  intrastate  traffic  after  the 
Public  Service  Act  went  into  effect,  the  judgment  will  be  reversed, 
and  a  new  trial  granted. 

7.  It  is  competent  for  a  manufacturing  company  and  a  railroad 
company,  except  as  restrained  by  statute,  to  contract  that  the  line 
freight  may  include  the  service  of  moving  cars  in  and  about  the 
plant,  and  the  railroad  company  may  perform  this  work  with  its 
own  equipment,  or  employ  the  manufacturing  company's  plant 
facility,  to  do  it. 

Argued  Jan.  8, 1919.  Appeal,  No.  172,  Oct.  T.,  1918, 
by  plaintiff,  from  judgment  of  C.  P.  Allegheny  Co.,  July 
T.,  1914,  No.  1835,  on  certificate  for  defendant  in  case  of 
Pittsburgh  &  Lake  Erie  Railroad  Company  v.  South 
Shore  Railroad  Company.  Before  Stewart,  Mosch- 
zisker,  Frazbr,  Walling  and  Simpson,  JJ.   Reversed. 

Assumpsit  to  recover  $3,392.94  for  repairs  on  locomo- 
tives.   Before  Rbid,  J. 

Certificate  and  judgment  for  defendant  for  $ 65,000. 
Plaintiff  appealed. 

Error  assigned,  among  others,  was  in  refusing  instruc- 
tions for  plaintiff. 

George  E.  Show,  of  Reed,  Smith,  Shaw  &  Seal,  with 
him  John  J.  Heard,  for  appellant. — The  claim  of  the 
South  Shore  Railroad  Company  being  for  compensation 
for  services  alleged  to  have  been  performed  on  behalf  of 
the  line  carrier  in  the  transportation  of  interstate  and 
State  commerce  is  subject  to  and  controlled  by  the  acts 
of  Congress  regulating  interstate  commerce,  and  no 
action  may  be  maintained  under  the  law :  Armour  Pack- 
ing Co.  v.  United  States,  209  U.  S.  56;  Texas  &  Pacific 
Ry.  v.  Abilene  Cotton  Oil  Company,  204  XT.  S.  426;  Kan- 


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164  PITTSBURGH  &  L.E.R.R.  Co.,  AppeL,  v.  S.  S.  R.  R.  CO. 
Arguments— Opinion  of  the  Court  [264  Pa. 

sas  City  Southern  Ry.  v.  Albers  Commission  Company, 
223  U.  S.  573;  United  States  v.  D.,  L.  &  W.  R.  R.,  152 
Fed.  269;  Interstate  Commerce  Commission  v.  Reich- 
mann,  145  Fed.  235;  United  States  v.  A.,  T.  &  S.  F.  Ry., 
163  Fed.  Ill;  Chesapeake  &  Ohio  Ry.  Co,  v.  Standard 
Lumber  Co.,  174  Fed.  107 ;  Cent.  R.  R.  of  N.  J.  v.  Mauser, 
241  Pa.  603;  Penna.  R.  R.  Co.  v.  Clark  Bros.  Coal  Min- 
ing Co.,  238  U.  S.  456. 

The  status  of  the  South  Shore  Railroad  Company  is 
res  adjudicata  in  this  court:  Pittsburgh  &  Lake  Erie 
R.  R.  Company  v.  Clinton  Iron  &  Steel  Company,  258 
Pa.  338. 

If  the  act  to  regulate  commerce  does  not  apply  and 
the  subject-matter  of  this  suit  is  one  concerning  which 
the  parties  were  free  to  contract  then  this  action  is  pre- 
mature,  because  the  parties  agreed  to  abide  by  a  decision 
of  the  Interstate  Commerce  Commission. 

W.  8.  Dalzell,  of  Dalzell,  Fisher  &  Hawkins,  for  ap- 
pellee, cited :  Malvern  F.  &  V.  R.  R.  Co.  y.  Chicago  R.  I. 
&  P.  Ry.  Co.,  182  Fed.  Rep.  685. 

Opinion  by  Mr.  Justice  Walling,  March  17, 1919 : 
This  appeal  by  plaintiff  is  from  judgment  entered  for 
defendant  on  a  balance  of  f 65,000  certified  by  the  jury 
in  an  action  of  assumpsit.  Plaintiff's  railroad  extends 
from  Pittsburgh  to  Toungstown,  Ohio,  and  at  the  former 
city  connects  with  various  manufacturing  establish- 
ments, including  the  Clinton  Iron  &  Steel  Company,  of 
which  defendant  is  a  plant  facility,  although  chartered  as 
a  railroad  company:  Pittsburgh  &  L.  E.  R.  R.  Co.  v. 
Clinton  I.  &  S.  Co.,  258  Pa.  338.  Defendant  had  two  en- 
gines and  six  freight  cars,  also  divers  sidings  and 
switches  located  on  the  land  of  the  steel  company  and 
extending  to  its  different  departments.  Plaintiffs  tracks 
connected  with  those  of  defendant  at  what  is  known  as 
interchange  track  in  Point  Bridge  yard,  where  defend- 
ant took  the  cars  and  distributed  them  about  the  plant 

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PITTSBURGH  &  L.E.B.R.  Co.,  AppeL,  v.  S.  S.  R.  R.  CO.  165 
1019*]  Opinion  of  the  Court 

as  needed;  also  gathered  up  cars  for  the  outward  ship- 
ment and  delivered  them  to  plaintiff  at  the  same  point; 
in  other  words,  did  a  general  switching  business  about 
the  plant  including  the  transfer  of  cars  coming  in  and 
going  out.  This  embraced  cars  engaged  in  both  inter- 
state and  State  (intrastate)  traffic.  For  many  years 
ending  in  1907,  plaintiff  paid  defendant  a  satisfactory 
price  for  such  service;  then  a  controversy  arose  with 
reference  thereto,  and,  after  much  discussion  and  corre- 
spondence, it  was  agreed  that  defendant  should  be  paid 
according  to  a  certain  schedule  fixed  by  plaintiff  until 
the  matter  was  adjusted  by  the  Interstate  Commerce 
Commission,  when  the  balance  if  any  for  the  intervening 
time  would  be  paid  in  full.  That  schedule  fixed  $2.25  per 
car  for  iron  ore,  f  1.75  for  coke,  f  1.60  for  limestone  and 
a  flat  rate  of  $ 2  for  each  car  handled  for  a  subsidiary 
plant  In  1911  plaintiff  without  notice  to  defendant 
filed  this  schedule  of  rates  with  the  commission ;  but  the 
matter  was  never  brought  before  that  body  for  adjust- 
ment, and  in  May,  1914,  plaintiff  cancelled  the  agree- 
ment and  refused  further  payment  for  the  terminal  serv- 
ice, while  performing  it  for  other  like  plants.  Shortly 
thereafter  plaintiff  brought  this  suit  on  an  admitted 
claim  of  $3,392.94,  and  interest,  for  repair  work;  to 
which  defendant  interposed  a  set-off  of  $93,542.30, 
claimed  as  the  difference  between  the  cost  of  the  termi- 
nal service  and  the  amount  received  therefor  since  1907. 
This  was  based  on  a  charge  of  $2.75  for  each  car  handled. 
However,  at  the  trial  the  evidence  tended  to  prove  that 
the  actual  cost  of  such  service  was  $2.46  per  car,  and  de- 
fendant reduced  the  claim  to  that  amount.  Its  case  de- 
pended in  part  on  parol  evidence  and  the  trial  judge  sub- 
mitted to  the  jury,  inter  alia,  the  question  of  the  fair  and 
reasonable  cost  of  such  service.  The  jury  found  for  the 
defendant  a  certified  balance  of  $65,000,  on  which  judg- 
ment was  entered.  That  was  a  considerable  deduction 
from  the  full  amount  of  the  set-off  computed  on  the  basis 
of  $2.46  per  car.    A  part  of  defendant's  claim  as  item* 


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166  PITTSBURGH  &  L.E.R.R.  Co.,  AppeL,  v.  S.  S.  R.  R.  CO. 
Opinion  of  the  Court  [264  Pa. 

ized  was  for  the  movement  of  cars  engaged  in  interstate 
and  the  balance  for  those  engaged  in  State  commerce,  bnt 
as  the  case  was  tried  and  submitted  to  the  jury,  they 
were  blended  as  one  claim,  and  so  far  as  can  be  judged 
the  same  amount  was  allowed  for  each  car  regardless  of 
the  kind  of  commerce  in  which  it  was  engaged. 

As  to  the  interstate  shipments  the  matter  is  controlled 
by  federal  statutes,  which  seek  to  protect  the  public  by 
securing  uniformity  of  rates  and  privileges.  See  Texas 
&  Pac.  By.  v.  Abilene  Cotton  Oil  Co.,  204  U.  S.  426.  Under 
the  Act  of  Congress  to  Regulate  Commerce,  as  amended 
June  29,  1906,  the  interstate  carrier  must  file  with  the 
commission  and  also  publish  schedules  of  all  rates  and 
tariffs  including  terminal  charges,  and  the  act  also  pro- 
vides that,  "No  carrier shall  engage  or  participate 

in  the  transportation  of  passengers  or  property 

unless  the  rates,  fares,  and  charges  upon  which  the  same 
are  transported  by  said  carrier  have  been  filed  and  pub- 
lished in  accordance  with  the  provisions  of  this  act 

nor  shall  any  carrier  refund  or  remit  in  any  manner  or 
by  any  device  any  portion  of  the  rates,  fares,  and  charges 
so  specified,  nor  extend  to  any  shipper  or  person  any 
privileges  or  facilities  in  the  transportation  of  passen- 
gers or  property,  except  such  as  are  specified  in  such 
tariffs"  (U.  S.  Statutes  at  Large,  1905-1907,  p.  586). 
And  in  effect  (p.  590)  that  only  reasonable  charges  shall 
be  allowed  the  owner  of  transported  property  for  services 
rendered  in  connection  therewith,  which  allowance  in 
case  of  complaint  shall  be  determined  by  the  commission. 
In  our  opinion  under  that  statute  the  carrier  can  neither 
recover  freight  charges,  nor  pay  the  owner  any  allowance 
for  services  in  connection  with  such  transportation,  ex- 
cept as  provided  in  schedules  previously  filed  as  above 
stated.  Plaintiff  should  have  filed  the  tariff  of  rates, 
and  would  have  been  ordered  to  do  so  had  application 
been  made  to  the  commission ;  but  until  such  schedules 
were  filed,  plaintiff  could  not  lawfully  pay  for  the  switch- 
ing services  in  question,  and,  of  course,  could  not  be  corn- 


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PITTSBURGH  &  L.E.R.R.  Co.,  AppeL,  v.  S.  S.  E.  R.  CO.  167 
1919.]  Opinion  of  the  Court. 

pelled  to  do  an  unlawful  act.  See  Swing  y.  Munson,  191 
Pa.  583;  Johnson  v.  Hulings,  103  Pa.  498;  Medoff  v. 
Fisher  et  al.,  257  Pa.  126;  Interstate  Commerce  Com- 
mission v.  Beichmann,  145  Fed.  235.  If  the  property 
owner  can  recover  from  the  carrier  for  yard-service  in 
switching  or  placing  cars,  without  a  schedule  of  rates 
therefor  being  promulgated,  then  discrimination  is  pos- 
sible under  the  guise  of  claims  for  terminal  services,  and 
that  is  what  the  statute  seeks  to  prevent. 

Then,  again,  by  the  agreement  defendant  was  to  be 
paid  according  to  plaintiff's  unfiled  schedule  until  ad- 
justed by  the  commission,  and  neither  party  asked  for 
such  adjustment.  It  was  a  matter  within  the  jurisdic- 
tion of  the  commission  and  by  the  agreement  made  a  con- 
dition precedent  to  any  claim  of  defendant  for  addition- 
al compensation.  Plaintiff's  act  in  cancelling  the  con- 
tract did  not  oust  the  jurisdiction  of  the  commission, 
who  might  still  determine  the  validity  of  such  cancella- 
tion and  also  the  question  of  allowances  for  past  trans- 
actions. See  Pennsylvania  R.  R.  Co.  v.  Stineman  Coal 
Min.  Co.,  242  U.  S.  298.  The  rule  under  the  Federal 
statute  seems  to  be  that  where  the  question  involved 
is  as  to  the  reasonableness  of  rates,  it  is  an  administra- 
tive one  and  must  first  be  passed  upon  by  the  commis- 
sion; but  where  such  question  is  not  involved  the  State 
courts  still  have  jurisdiction.  See  Pennsylvania  R.  R. 
v.  Sonman  Shaft  Coal  Co.,  242  U.  S.  121,  affirming  241 
Pa.  487;  Penna.  R.  R.  v.  Puritan  Coal  Mining  Co.,  237 
U.  S.  121,  affirming  237  Pa.  420;  Penna.  R.  R.  v.  Clark 
Bros.  Coal  Min.  Co.,  238  U.  S.  457.  There  having  been 
no  appeal  from  the  schedule  filed  by  plaintiff  in  1911,  it 
thereafter  became  the  legal  rate :  Crane  R.  R.  Co.  v.  Cen- 
tral R.  R.  Co.  of  N.  J.,  248  Pa.  333,  338;  Central  R.  R. 
Co.  of  N.  J.  v.  Mauser,  241  Pa.  603;  Kansas  City  So.  Ry. 
v.  Albers  Comm.  Co.,  223  U.  S.  573.  In  our  opinion  so 
much  of  defendant's  claim  as  rests  on  interstate  traffic 
should  have  been  excluded. 


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i68  PITTSBURGH  &  L.E.R.R.  Co.,  AppeL,  v.  S.  S.  R.  R.  06. 
Opinion  of  the  Court  [264  Pa. 

As  defendant  neither  filed  nor  published  any  schedule 
of  rates,  it  could  not  recover  for  interstate  traffic  if  re- 
garded as  a  common  carrier. 

The  claim  for  State  traffic  is  different;  to  it  the  fed- 
eral statutes  have  no  application.  Here  according  to  the 
evidence  services  were  rendered  for  which  payment  at 
less  than  actual  cost  was  received  under  protest  and 
upon  an  agreement  that  the  amount  should  finally  be 
determined  by  a  tribunal,  which  in  fact  had  no  right  to 
act  in  the  premises.  The  agreement  for  such  determi- 
nation did  not  oust  the  jurisdiction  of  the  courts  and  de- 
fendant can  recover  in  this  case  on  a  quantum  meruit 
whatever  balance  may  be  its  due  for  the  expense  of  the 
service  actually  rendered. 

While  the  exchange  point  was  the  terminus  of  the 
route  so  far  as  related  to  the  question  of  demurrage  (P. 
&  L.  E.  R.  R.  Co.  v.  Clinton  I.  &  S.  Co.,  supra)  it  was 
competent  for  the  parties,  except  as  restrained  by  stat- 
ute, to  contract  that  the  line  freight  rate  should  include 
the  service  of  moving  the  cars  in  and  about  the  plant  as 
required,  and  plaintiff  might  perform  this  work  with  its 
own  equipment,  or  employ  defendant  to  do  it.  It  has 
been  recently  held  that  under  the  federal  statutes  the 
carrier  may  be  liable  to  the  owner  for  the  expense  of 
spotting  or  placing  cars :  Stewart  Iron  Co.  v.  P.  Co.,  47 
I.  C.  C.  513;  while  such  right  does  not  seem  to  be  recog- 
nized in  some  of  the  earlier  decisions  of  the  commission. 

Soon  after  plaintiff's  cancellation  of  the  contract  as 
above  stated,  the  defendant  applied  to  the  Penna.  Pub- 
lic Service  Commission  praying  that  such  cancellation 
be  annulled  and  that  plaintiff  be  required  to  pay  defend- 
ant a  fair  and  reasonable  compensation  for  the  services 
performed  in  intrastate  commerce  subsequent  to  Janu- 
ary 1, 1914,  that  being  the  date  when  the  Public  Service 
Act  of  July  26, 1913,  P.  L.  1374,  became  effective.  This 
proceeding  is  still  pending  within  the  jurisdiction  of  the 
State  commission  and  precludes  defendant  from  here 


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PITTSBUBGH  &  L.E.R.R.  Co.,  Appel,  v.  &  S.  B.  B.  CO,  16fr 
1919.]  Opinion  of  the  Court. 

recovering  on  so  much  of  the  claim  there  involved  as  may 
be  disallowed  by  that  body. 

Defendant  may  set  off  in  this  suit  the  difference  if  any 
between  the  actual  cost  of  the  service  rendered  in  State 
traffic  and  the  amount  received  therefor  on  account  of 
work  done  prior  to  January  1,  1914;  but,  as  the  set-off 
allowed  at  the  trial  includes  compensation  for  services 
rendered  after  that  date  and  also  for  services  in  inter- 
state traffic,  a  new  trial  must  be  granted. 

For  reasons  above  stated  the  judgment  is  reversed  and 
a  venire  facias  de  novo  awarded. 


Dyer,  Appellant,  v.  Wallace. 

Mechanics'  liens — Architect — Plans — Supervision  of  construction 
— Requisites  of  lien — Bill  of  particulars — Unliquidated  damages — 
Breach  of  contract — Discharge  of  architect — Act  of  June  k>  1901, 
P.  L.  b81— Constitution,  Article  III,  Section  7. 

1.  A  mechanic's  lien  is  a  pure  creature  of  the  statute,  and  com- 
pliance with  statutory  requirements  is  necessary  to  its  validity.' 
It  must  state  facts,  and  not  depend  on  inferences.  A  bill  of  par- 
ticulars filed  with  the  claim  becomes  a  part  of  it. 

2.  A  rule  to  strike  off  a  mechanic's  lien  must  be  determined  by 
the  record. 

3.  A  lien  must  set  forth  the  amount  or  sum  claimed  to  be  due, 
and  be  so  stated  as  to  form  a  basis  for  a  liquidation  of  judgment.  It 
must  contain  at  least  one  valid  item. 

4.  The  services  of  an  architect  in  preparing  plans  cannot  be 
made  the  subject  of  ti  mechanic's  lien,  except  in  connection  with 
other  services  rendered  in  the  construction  of  the  building. 

5.  A  construction  of  the  Act  of  June  4,  1901,  P.  L.  431,  that 
would  extend  its  benefits  to  an  architect  merely  for  preparing  plans, 
would  render  it  invalid  as  a  special  law,  or  as  changing  the  method 
for  the  collection  of  debts  in  contravention  of  Section  7  of  Article 
HE,  of  the  Constitution  of  1874. 

6.  A  mechanic's  lien  can  be  sustained  only  for  work  done  or 
materials  furnished,  and  not  for  unliquidated  damages  for  breach 
of  contract  It  cannot  be  made  to  embrace  anything,  whether  labor 
or  material,  not  actually  furnished. 


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170  DYER,  Appellant,  v.  WALLACE. 

Syllabus— Arguments.  [264  Pa. 

7.  A  mechanic's  lien  will  be  stricken  off,  where  it  shows  on  its 
fece  that  it  was  filed  by  an  architect  for  services  in  supervising  the 
construction  of  a  manufacturing  plant  for  an  amount  equal  to  ten 
per  cent  of  the  total  cost  of  the  building,  and  that  before  the  work 
was  completed  the  owner  refused  to  permit  the  claimant  to  continue 
the  supervision  of  the  unfinished  portion  of  the  work  but  fails  to 
show  the  total  cost  of  the  work,  or  the  cost  of  any  part  of  it,  or  the 
cost  of  the  work  that  was  finished  when  the  claimant  was  dis- 
charged. 

8.  In  such  a  case,  the  claimant  might  have  filed  a  lien  against 
the  plant  for  the  value  of  the  work  actually  done,  coupled  with  an 
averment  that  full  performance  of  the  contract  on  his  part  had 
been  prevented  by  the  owner. 

Mechanic's  lien — Amendment — Mistake — Averments  in  affidavit. 

9.  A  petition  to  amend  a  mechanic's  lien  will  not  be  granted, 
where  the  affidavit  to  the  petition  fails  to  state  that  the  averments 
in  the  petition  are  true  in  fact,  or  that  there  was  any  mistake  in 
the  original  claim. 

Mr.  Justice  Simpson  filed  a  dissenting  opinion. 

Argued  Jan.  23, 1919.  Appeal,  No.  218,  Jan.  T.,  1919, 
by  plaintiff,  from  order  of  C.  P.  No.  1,  Philadelphia  Co., 
March  T.,  1918,  No.  5366,  M.  L.  D.,  striking  off  mechan- 
ic's lien  in  case  of  William  E.  S.  Dyer  v.  Richard  L.  Wal- 
lace, owner,  and  Richard  L.  Wallace,  trading  as  R.  L. 
Wallace  &  Company,  Contractor.  Before  Brown,  C.  J., 
Stewart,  Frazer,  Walling  and  Simpson,  JJ.   Affirmed. 

Rule  to  strike  off  mechanic's  lien.  Before  Patter- 
son, J. 

The  court  made  absolute  the  rule  to  strike  off  the  lien. 
Plaintiff  appealed. 

Errors  assigned  were  in  making  absolute  rule  to  strike 
off  lien  and  in  discharging  rule  for  leave  to  amend  the 
lien. 

J.  &  Freeman,  for  appellant. — A  mechanic's  lien 
claimant  may  amend  his  lien  by  changing  the  phraseol- 


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DYER,  Appellant,  v.  WALLACE.  171 

1919.]  Arguments, 

ogy  so  as  to  conform  to  the  fact  as  existing  at  the  time 
the  amendment  is  asked  for:  Thirsk  v.  Evans,  211  Pa. 
239;  Nagle  v.  Garrigues,  46  Pa.  Superior  Ct.  155;  May 
v.  Mora,  50  Pa.  Superior  Ct.  359. 

An  architect  has  the  right  under  the  Act  of  June  4, 
1901,  to  file  a  mechanic's  lien  for  his  skill  and  services  in 
the  preparation  of  plans,  drawings  and  specifications  for 
buildings  and  in  supervising  the  construction  thereof. 

The  claim  as  filed  in  the  case  now  before  the  court  com- 
plies with  the  provision  of  the  Act  of  June  4, 1901,  P.  L. 
431,  as  amended  by  the  Act  of  April  17, 1905,  P.  L.  174 : 
Vulcanite  Portland  Cement  Co.  v.  Allison,  220  Pa.  382; 
Vulcanite  Paving  Co.  v.  Phila.  Rapid  Transit  Co.,  220 
Pa.  603;  Page  v.  Carr,  232  Pa.  371;  Linden  Steel  Co.  v. 
Rough  Run  Mfg.  Co.,  158  Pa.  238;  Wyss-Thalman  v. 
Beaver  Val.  Brewing  Co.,  216  Pa.  435;  Burger  v.  S.  R. 
Moss  Cigar  Co.,  225  Pa.  400;  Deeds  v.  Imperial  Brick 
Co.,  219  Pa.  579;  Hiestand  v.  Keath,  42  Pa.  Superior  Ct. 
403;  Murphy  v.  Bear,  240  Pa.  448;  Mesta  Machine  Co. 
v.  Dunbar  Furnace  Co.,  250  Pa.  472;  American  Car,  etc., 
Co.  v.  Alexandria  Water  Co.,  215  Pa.  520. 

Wayne  P.  Rambo,  with  him  Joseph  W.  Kenuoorthy  and 
Ormond  Rambo,  for  appellee. — The  lien  under  consider- 
ation is  an  architect's  lien,  and  before  proceeding  to  dis- 
cuss the  lien  itself  in  detail,  it  is  to  be  borne  in  mind  that 
an  architect  who  only  furnishes  plans  and  drawings,  and 
performs  no  services  in  the  erection  of  a  building,  is  not 
entitled  to  a  lien :  Bank  of  Penna.  v.  Gries,  35  Pa.  423 ; 
Price  v.  Kirk,  90  Pa.  47. 

That  any  advance  upon  the  lien  law  beyond  what  that 
law  was  in  1874,  is  unconstitutional  legislation,  is  defi- 
nitely settled  by  Page  v.  Carr,  232  Pa.  371,  and  by  the 
following  cases :  Vulcanite,  etc.,  Co.  v.  Allison,  220  Pa. 
382;  Vulcanite  Co.  v.  P.  R.  T.  Co.,  220  Pa.  603;  Taylor 
Lumber  Co.  v.  Carnegie  Institute,  225  Pa.  486;  Sterling 
Bronze  Co.  v.  Syria  Imp.  Assn.,  226  Pa.  475;   Sax  v. 

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172  DYER,  Appellant,  v.  WALLACE. 

Arguments— Opinion  of  the  Court.  [264  Pa. 

School  Dist,  237  Pa.  68;  Malone  v.  Hosfield,  63  Pa.  Su- 
perior Ct.  134, 141. 

By  no  sort  of  construction  can  a  mechanic's  lien  be 
made  to  embrace  anything,  whether  labor  or  material, 
not  actually  furnished :  Deeds  v.  Imperial  Brick  Co.,  219 
Pa.  579;  Alguire  v.  Keller,  68  Pa.  Superior  Ct.  280; 
Page  v.  Carr,  232  Pa.  371 ;  Laughlin  v.  Solomon,  180  Pa, 
179;  Pahnestock  v.  Speer,  92  Pa.  146. 

Opinion  by  Mb.  Justice  Walling,  March  17, 1919 : 
This  is  an  appeal  by  the  claimant  from  an  order  strik- 
ing off  a  mechanic's  lien.  The  owner,  Richard  L.  Wal- 
lace, on  June  21, 1917,  entered  into  a  written  agreement 
with  the  claimant,  William  E.  S.  Dyer,  a  mill  engineer 
and  architect,  by  which  the  latter  was  to  prepare  plans 
and  supervise  the  construction  of  a  wool  scouring  plant 
on  a  tract  of  land  at  Eighty-first  street  and  Bartram 
avenue,  Philadelphia.  The  plant  was  to  embrace  two 
warehouses,  a  power  house,  a  steam  piping  system  and 
other  structures  and  equipment.  The  contract  states 
that,  "As  compensation  in  full  for  services  to  be  rendered 
by  him  the  said  Dyer  shall  be  paid  a  commission  of  ten 
per  cent  of  the  total  cost  of  the  building  construction  and 
equipment."  On  May  13,  1918,  Mr.  Dyer  filed  the  lien 
here  in  question  setting  forth  a  copy  of  the  contract  and 
claiming  $18,134.88,  made  up  of  items  in  the  attached 
schedule.  The  lien  sets  forth,  inter  alia,  "The  said 
claimant supervised  the  construction  of  the  build- 
ings erected  and  the  installation  of  the  machinery  placed 
therein.  The  said  claimant  entered  upon  the  perform- 
ance of  the  said  services  on  June  21, 1917,  and  was  con- 
tinuously engaged  in  the  performance  thereof  from  said 
date  until  the  filing  of  this  lien  when  the  said  Richard  L. 
Wallace  refused  to  permit  the  said  claimant  to  continue 
the  supervision  of  the  unfinished  portion  of  said  work, 
in  violation  of  the  terms  of  the  aforesaid  contract.  The 
lot  of  ground  on  which  the  several  buildings  hereinafter 
more  particularly  described  are  erected,  in  course  of 


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DYBB,  Appellant,  v.  WALLACE.  173 

1919.]  Opinion  of  the  Court 

erection,  or  at  the  time  the  services  rendered  were  in- 
tended to  be  erected,  to  be  used  as  hereinbefore  stated  to- 
gether as  one  plant,  is  described  as  follows."  This  is 
followed  by  a  description  of  the  buildings  erected  there- 
on, which  states,  inter  alia :  "The  steam  piping  system 
extends  from  the  boiler  house  to  the  several  buildings 
which  said  system  is  now  being  in  process  of  construc- 
tion," and,  referring  to  warehouse  No.  2,  states :  "The 
building  to  be  erected  in  accordance  with  the  plans  and 

specifications  prepared  by  the  claimant was  to  be 

constructed  of  brick  and  timber  similar  to  warehouse 
No.  1." 

The  schedule  or  bill  of  particulars  is  indefinite;  while 
it  purports  to  be,  "In  account  with  Richard  L.  Wallace 
&  Company,"  the  claimant's  name  does  not  appear  there- 
in. It  mentions  ten  per  cent  commission  and  computes 
it  on  forty-four  items,  in  two  groups;  above  them  ap- 
pears the  only  date,  "September  7,  1917."     The  four 

largest  items  are  stated  thus,  "No.  1  Warehouse 

Henry  E.  Baton,  $44,000;  Power  House,  $15,363.87;  No. 
2  Warehouse  Bid,  $74,137;  Piping  System,  $13,371." 
The  other  items  are  equally  and  in  some  instances  more 
indefinite.  The  claim  includes  some  small  items,  amount- 
ing to  $58.76,  for  alleged  services  and  expenses,  aside 
from  the  contract,  for  which  there  seems  to  be  no  justi- 
fication and  which  we  will  not  discuss.  The  amount  of 
the  claim  as  above  stated  is  the  balance  after  deducting 
credits  of  $4,717.50. 

The  requisites  of  a  claim  under  the  Act  of  April  17, 
1905,  P.  L.  172,  are  in  the  main  similar  to  those  under 
the  Act  of  1836 ;  so  decisions  under  the  earlier  statute 
are  still  applicable.  We  will  state  some  principles  and 
authorities  which  seem  to  bear  upon  the  case. 

A  mechanic's  lien  is  a  pure  creature  of  the  statute,  and 
compliance  with  statutory  requirements  is  necessary  to 
its  validity:  Tenth  Nat.  Bank  v.  Smith  Const.  Co*  (No. 
1),  218  Pa.  581*  It  must  state  facts  and  not  depend  on 
inferences:   Wharton  v.  Real  Est.  Investment  Co.  of 


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174  DYBB,  Appellant,  v.  WALLACE. 

Opinion  of  the  Court.  [264  Pa. 

Phila.,  180  Pa.  168;  KneUy  v.  Horwath,  208  Pa.  487; 
Rush  v.  Able,  90  Pa.  153, 160.  A  bill  of  particulars  filed 
with  the  claim  becomes  a  part  of  it :  Am.  Car,  etc.,  Co.  v. 
Alexandria  Water  Co.,  215  Pa.  520;  Schultz  v.  Sarver,  3 
Penny.  411 ;  and  a  rule  to  strike  off  a  mechanic's  lien 
must  be  determined  by  the  record :  Burger  v.  S.  R.  Moss 
Cigar  Co.,  225  Pa.  400;  Mesta  Machine  Co.  v.  Dunbar 
Furnace  Co.,  250  Pa.  472;  Hiestand  v.  Keath,  229  Pa. 
149. 

The  lien  must  set  forth  the  amount  or  sum  claimed  to 
be  due :  Act  of  April  17, 1905,  P.  L.  172 ;  Burrows  v.  Car- 
son, 244  Pa.  6, 12 ;  and  so  stated  as  to  form  the  basis  for 
a  liquidation  of  judgment.  It  must  contain  at  least  one 
valid  item:  McCristal  v.  Cochran,  147  Pa.  225;  Mercer 
M.  &  L.  Co.  v.  Kreaps,  18  Pa.  Superior  Ct.  1. 

The  services  of  an  architect  in  preparing  plans  cannot 
be  made  the  subject  of  a  mechanic's  lien  (The  Bank  of 
Pennsylvania  v.  Gries,  35  Pa.  423;  Price  v.  Kirk,  90  Pa. 
47),  except  in  connection  with  other  services  rendered 
in  the  construction  of  the  building:  Trickett's  Law  of 
Liens  in  Penna.,  vol.  1,  sec.  9;  Johnson's  Law  of  Me- 
chanics' Liens  in  Penna.,  p.  173.  A  construction  of  the 
Act  of  June  4,  1901,  P.  L.  431,  that  would  extend  its 
benefits  to  an  architect,  merely  for  preparing  plans, 
would  render  it  invalid  as  a  special  law  for  the  extension 
of  liens,  or  as  changing  the  method  for  the  collection  of 
debts,  in  contravention  of  Section  7  of  Article  III  of  the 
Constitution  of  1874;  see  Sax  v.  School  District,  237  Pa. 
68;  Page  v.  Carr,  232  Pa.  371;  Vulcanite  Portland  Ce- 
ment Co.  v.  Allison,  220  Pa.  382. 

A  mechanic's  lien  can  be  sustained  only  for  work  done 
or  materials  furnished  and  not  for  unliquidated  damages 
for  breach  of  contract :  Deeds  v.  Imperial  Brick  Co.,  219 
Pa.  579.  There,  Mr.  Justice  Stewart,  in  delivering  the 
opinion  of  the  court,  says  (p.  582),  "By  no  sort  of  con- 
struction can  a  mechanic's  lien  be  made  to  embrace  any- 
thing, whether  labor  or  material,  not  actually  furnished. 
Plaintiffs  had  a  right  to  subject  the  building  to  a  lien 


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DYER,  Appellant,  v.  WALLACE.  175 

1919.]  Opinion  of  the  Court. 

for  the  work  they  did  upon  and  about  its  erection  and 
construction;  but  a  claim  for  anything  beyond  neces- 
sarily sounded  in  damages,  and  these  can  never  be  made 
the  subject  of  a  mechanic's  lien";  and  see  Stephens  & 
Co.  v.  Campbell  et  al.,  13  Pa.  Superior  Ct.  7.  In  each  of 
those  cases  as  here  the  claimant  sought  to  embrace  in  his 
lien  a  claim  for  damages  for  breach  of  contract.  In  the 
present  case  appellant  was  discharged  during  the  build- 
ing operation,  when  work  on  some  of  the  structures  had 
not  begun,  while  others  were  in  process  of  construction 
and  some  possibly  finished.  According  to  the  contract 
his  commission  was  to  be  on  the  total  cost  of  the  building 
construction  and  equipment;  but  he  fails  to  aver  the 
total  cost  or  in  fact  the  cost  of  any  part  of  it.  Certain 
items  are  stated,  but  no  averment  that  they  represent  the 
total  cost  or  the  actual  cost  of  the  respective  structures. 
As  the  lien  was  filed  when  the  plant  was  but  partially 
constructed,  its  total  cost  could  not  then  be  known.  This 
clearly  appears  in  the  largest  item,  "No.  2  Warehouse 
Bid,  |74,137."  That  does  not  show  the  cost  of  the 
building,  and  nothing  had  been  done  towards  its  con- 
struction, yet  |7,413.70  of  this  claim  is  based  upon  it. 
This  lien  could  be  sustained  only  for  work  actually  per- 
formed and  the  amount  of  that  is  not  stated;  admittedly 
but  part  of  the  entire  work  was  done  and  we  do  not  know 
what  part  as  it  blends  the  claim  for  work  done  with  that 
for  work  not  done,  and,  hence,  cannot  be  sustained.  Ap- 
pellant might  have  filed  a  lien  against  the  plant  for  the 
value  of  the  work  actually  done  (Linden  Steel  Co.  v< 
Rough  Run  Mfg.  Co.,  158  Pa.  238;  Safe  Deposit  Co.  v, 
Columbia  Iron  &  Steel  Co.,  176  Pa.  536;  East  Strouds 
burg  Lumber  Co.'s  App.,  1  Pa.  Superior  Ct.  261),  cou 
pled  with  an  averment  that  full  performance  of  the  con 
tract  on  his  part  had  been  prevented  by  the  owner ;  but 
what  he  seemingly  attempted  to  do  was  to  claim  for  a 
full  performance  while  admitting  that  it  had  not  been 
done.    In  assumpsit  he  might  claim  for  work  done  and 


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176  DYER,  Appellant,  v.  WALT/ACE. 

Opinion  of  the  Court.  [264  Pa. 

damages  for  breach  of  contract,  but  a  mechanic's  lien 
cannot  be  sustained  for  the  latter. 

The  most  specific  item  is  the  one  first  above  quoted, 
viz:  "No.  1  Warehouse— Henry  E.  Baton,  |44,000"; 
which,  it  is  suggested,  is  sufficiently  specific ;  but  it  is  not 
averred  that  Henry  E.  Baton  was  the  contractor  for  that 
building  or  that  the  sum  stated  was  its  cost.  Such  con- 
clusion must  be  reached  if  at  all  by  inference  and  not 
from  averment.  Neither  do  we  agree  with  the  suggestion 
that  the  averments  as  to  the  machinery  placed  in  the 
power  house  are  sufficient;  for  example,  take  the  largest 
of  those  items,  stated  in  the  bill  of  particulars  as,  "Per* 

mutit  Company $6,570.00";  there  is  no  averment 

that  this  sum  was  the  cost  of  or  connected  with  the  Per- 
mutit  Water  Softener  equipment  mentioned  in  the  body 
of  the  claim;  and  placing  it  in  the  bill  of  particulars 
in  a  separate  group  of  items  from  the  power  house  adds 
to  the  uncertainty.  The  lien  cannot  be  sustained  as  a 
claim  for  work  actually  done,  independent  of  the  con- 
tract, as  there  is  no  averment  of  the  value  of  such  work. 

While  some  averments  standing  alone  might  be  suf- 
ficient yet  we  should  consider  the  claim  as  a  whole;  for 
example,  there  is  a  general  statement  to  the  effect  that 
claimant  performed  the  contract  on  his  part,  but  fol- 
lowed by  a  specific  statement  that  he  was  discharged 
during  the  progress  of  the  work  and  prevented  from  com- 
pleting it,  and  we  cannot  ignore  the  latter  averment.  We 
are  considering  the  lien  as  if  filed  by  a  contractor  and 
not  by  a  subcontractor. 

Error  is  also  assigned  to  the  order  of  the  court  below 
refusing  to  allow  an  amendment  of  the  mechanic's  lien  in 
question.  Section  51  of  the  Act  of  June  4,  1901,  P.  L. 
454, 3  Purdon's  Digest  (13th  Ed.),  p.  2504,  provides  that 

the  claim,  etc.,  "may  be  amended upon  petition  for 

that  purpose  under  oath  or  affirmation  setting  forth  the 
amendment  desired,  that  the  averments  therein  contained 
are  true  in  fact,  and  that  by  mistake  they  were  omitted 
from  or  wrongfully  stated  in  the  particulars  as  to  which 


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DYER,  Appellant,  v.  WALLACE.  177 

1919.]  Opinion  of  the  Court — Dissenting  Opinion, 

the  amendment  is  desired."  The  appellant's  only  aver- 
ment in  his  affidavit  to  the  petition  for  leave  to  amend 
is,  "that  the  averments  in  the  foregoing  petition  con- 
tained are  true  as  he  verily  believes/'  and  the  petition 
makes  no  allegation  of  any  mistake  in  the  original  claim. 
As  the  affidavit  fails  to  state  that  the  averments  in  the 
petition  are  true  in  fact,  or  that  there  was  any  mistake 
in  the  original  claim,  the  amendment  was  properly  re- 
fused. 

The  assignments  of  error  are  overruled  and  the  orders 
appealed  from  are  affirmed. 

Dissenting  Opinion  by  Mb.  Justice  Simpson: 

Plaintiff  filed  a  mechanic's  lien  against  defendant  as 
owner  and  contractor,  defendant  moved  to  strike  it  off, 
plaintiff  moved  for  leave  to  amend,  the  court  dismissed 
the  latter  motion  and  made  absolute  the  former,  and 
plaintiff  appeals. 

Section  11  of  the  Act  of  June  4,  1901,  P.  L.  431,  as 
amended  by  Section  1  of  the  Act  of  April  17, 1905,  P.  L. 
172,  specifically  sets  forth  what  averments  are  necessary 
in  a  mechanic's  lien ;  with  slight  changes  of  verbiage,  not 
affecting  the  meaning,  they  are  the  same  as  in  Section  12 
of  the  Act  of  June  16, 1836,  P.  L.  695,  and  hence  the  de- 
cisions under  the  latter  act,  so  far  as  authorities  are 
needed,  are  pertinent  in  considering  the  questions  at 
issue  in  this  case. 

The  requirements  are  threefold :  First,  that  the  claim 
shall  set  forth  "the  names  of  the  party  claimant  and  of 
the  owiier  or  reputed  owner  of  the  building,  and  also  of 
the  contractor,  architect  or  builder."  The  claim  in  this 
case  says  that  the  name  of  the  claimant  is  William  E.  S. 
Dyer,  the  owner  is  Richard  L.  Wallace,  and  the  con- 
tractor is  the  said  Richard  L.  Wallace,  trading  as  R.  L. 
Wallace  &  Company.  The  second  requirement  is  that 
the  claim  shall  specify  "the  amount  or  sum  claimed  to 
be  due  and  the  nature  or  kind  of  the  work  done,  or  the  kind 
and  amount  of  materials  furnished,  or  both,  and  the  time 
Vol.  cclxiv— 12 

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178  DYER,  Appellant,  v.  WALLACE. 

Dissenting  Opinion.  [264  Pa. 

when  the  materials  were  furnished  or  the  work  done  or 
both,  as  the  case  may  be."  The  claim  says  that  the 
amount  due  is  $18,134.88,  for  services  rendered  in  the 
erection  and  construction  of  the  buildings  under  a  con- 
tract with  the  owner,  a  copy  of  which  is  attached  to  the 
lien,  and  proceeds:  "the  said  services  consisted  of  the 
preparation  of  general  and  preliminary  plans, — the  lo- 
cation of  the  several  buildings  and  structures,  so  as  to 
permit  them  to  be  operated  as  a  single  plant ;  the  prepa- 
ration of  detailed  plans,  working  drawings,  and  specifi- 
cations for  each  separate  building  and  structure;  the 
designing,  selecting  and  supervising  the  installation  and 
erection  of  the  heating,  ventilating,  mechanical,  electri- 
cal and  sanitary  equipment,  including  fire  protecting 
apparatus,  and  whatever  else  was  necessary  to  a  com- 
plete construction  of  said  plant,  including  the  selection 
and  purchase  of  engines  and  machinery  of  all  kinds  re- 
quired in  the  operation  of  said  plant  for  carrying  on  the 
wool  scouring  and  wool  storage  business  by  the  said 
owner  and  contractor.  All  of  the  above-mentioned  serv- 
ices were  rendered  and  performed  by  the  said  claimant  in 
full  compliance  with  the  terms  of  the  aforesaid  con- 
tract." It  also  says  that  claimant  "entered  upon  the 
performance  of  said  services  on  June  21,  1917,  and  was 
continuously  engaged  in  the  performance  thereof  until 

the  date  of  the  filing  of  this  lien." The  third  and 

last  requirement  is  that  the  claim  shall  specify  "the  lo- 
cality of  the  structure  or  other  improvement  with  such 
description  thereof  as  may  be  necessary  for  the  purpose 
of  identification,  and  a  description  of  the  real  estate  upon 
which  the  same  is  situate."  The  claim  in  this  case  de- 
scribes particularly  the  property  and  the  several  build- 
ings upon  which  the  work  was  done,  giving  their  location 
and  size,  as  well  as  the  purposes  for  which  they  were  to  be 
used.  It  is  clear,  therefore,  that  every  requirement  of 
the  Act  of  1905,  is  fully  met  by  this  lien,  and  the  court 
below  erred  in  striking  it  off,  unless  some  other  reason 
be  shown  for  its  action. 


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DYER,  Appellant,  v.  WALLACE,  179 

1919.]  Dissenting  Opinion. 

The  principal  objection  grows  out  of  the  averment  that 
the  claim  is  not  sufficiently  specific ;  but  this  can  hardly 
be  so  where,  as  here,  it  avers  everything  required  by  the 
statute.  Moreover,  this  contention  wholly  overlooks  the 
fact  that  the  claim  is  not  filed  by  a  subcontractor,  but 
by  one  who  contracts  directly  with  the  owner.  Under 
the  Act  of  1836,  it  was  held  in  a  series  of  cases,  of  which 
Haiey  v.  Prosser,  8  W.  &  S.  133,  is  probably  the  last, 
that  a  mechanic's  lien  would  not  be  sustained  "where 
there  is  a  special  contract  with  the  owner,"  for  in  that 
event  "the  party  who  deals  with  him  must  provide  for 
his  own  security;  but  where  there  is  no  agreement  in 
which  the  terms  of  the  bargain  are  particularly 
stated,  he  is  supposed  to  contract  on  the  basis  of  the 
law."  Under  that  act,  for  the  protection  of  the  owner, 
a  subcontractor  was,  and  under  the  Act  of  1901  still  is, 
required  to  specify  in  detail  the  work  which  he  did,  the 
materials  which  he  furnished,  and  the  prices  which  he 
claims  to  be  paid  for  them ;  but  even  in  that  class  of 
cases  ( Willson  v.  Canevin,  226  Pa.  362)  if  a  lien  specifies 
the  total  contract  price,  and  details  the  work  and  ma- 
terials actually  furnished,  it  is  not  necessary  to  state 
the  prices  charged  for  the  various  items. 

Section  5  of  the  Act  of  April  16,  1845,  P.  L.  538,  was 
passed  to  give  to  the  principal  contractor  the  right  to 
file  a  lien,  even  though  he  had  a  special  contract  with  the 
owner ;  and  under  it,  beginning  with  Young  v.  Lyman,  9 
Pa.  449,  and  running  down  to  the  present  time  (Brown 
v.  Myers,  145  Pa.  17,  20;  Murphy  v.  Bear,  240  Pa.  448, 
451 ) ,  it  has  been  consistently  held  where  the  contract  was 
made  directly  with  the  owner,  it  was  not  necessary  to 
set  forth  the  items  for  which  the  lien  was  filed,  unless  the 
contract  itself  provided  for  the  work  or  materials  to  be 
furnished  as  specific  items.  The  reason  for  the  distinc- 
tion between  the  two  classes  of  liens  is,  in  the  latter  class 
the  owner  already  knows  whether  or  not  the  lien  is  a 
proper  one,  and  does  not  need  to  be  advised  in  regard 
thereto ;  whereas  in  the  former  he  does  need  the  inf orma- 


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180  DYER,  Appellant,  v.  WALLACE. 

Dissenting  Opinion.  [264  Pa. 

tion,  because  "the  agreement  between  him  [the  subcon- 
tractor] and  the  contractor  is  not  the  measure  of  the 
owner's  responsibility" :  Chapman  v.  Faith,  18  Pa.  Su- 
perior Ct.  578, 587.  It  necessarily  follows, — and  perhaps 
it  is  nowhere  better  stated  than  in  Judge  Rice's  opinion 
in  the  last-cited  case, — if  the  claim  gives  the  owner  suffi- 
cient information  to  enable  him  to  know  whether  or  not 
it  ought  to  be  paid,  and  to  defend  against  it  if  he  thinks 
it  should  not,  it  answers  every  purpose  required  by  law. 
Always  remembering  that  here  the  contract  was  with 
the  owner,  and  that  if  any  one  item  is  sufficiently  averred 
this  rule  to  strike  off  the  entire  claim  must  fail  (Mc- 
Crystal  v.  Cochran,  147  Pa.  225),  the  proper  conclusion 
ought  not  to  be  difficult.  The  contract  provides  "as  com- 
pensation in  full  for  services  to  be  rendered  by  him,  the 
said  Dyer  shall  be  paid  a  commission  of  ten  per  cent  of 
the  total  cost  of  the  building  construction  and  equip- 
ment/' and  "all  bids  are  to  be  submitted  to  Richard  L. 
Wallace  &  Company;  the  several  contracts  are  to  be 
selected  by  Dyer,  subject  to  the  approval  of  Richard  L. 
Wallace  &  Company,  and  placed  by  Richard  L.  Wallace 
&  Company  with  the  individual  contractors."  This  the 
claim  avers  was  done,  and  hence  it  is  clear  defendant 
knew  exactly  what  the  bids  were,  who  were  the  successful 
bidders,  and  what  was  plaintiff's  ten  per  cent  thereof. 
The  lien  says  that  one  of  the  buildings  actually  "con- 
structed" is  a  "power  house"  in  which  has  been  placed 
as  part  of  the  equipment,  "two  Coatesville  boilers, 
Skinner  engine,  Western  Electric  Generator,  Permutit 
Water  Softener  equipment,  Harrison  Safety  Boiler 
Works  feed  water  heater,  Oriscom-Russell  hot  water 
heater,  and  Walker  Electric  switchboard,"  and  "the  par- 
ticular items  upon  which  said  commission  was  based  are 
particularly  mentioned  in  the  schedule  hereto  attached, 
marked  'Exhibit  B'";  from  which  we  find  the  cost  of 
those  specific  items  is  detailed  as  $8,170,  $3,202,  $1,815, 
$6,570,  $670,  $691,  and  $673,  respectively.  Upon  those 
items  which  were  "located"  in  the  "constructed"  power 


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DYER,  Appellant,  v.  WALLACE.  181 

1919.]  Dissenting  Opinion, 

house,  plaintiff  is  entitled  to  recover  by  this  lien  a  ten 
per  cent  commission,  but  by  striking  it  off  he  is  deprived 
thereof. 

Misled  thereto  by  defendant's  denial  that  "any  serv- 
ices were  performed  by  the  claimant  for  which  a  mechan- 
ic's lien  can  be  filed  under  the  law,"  the  court  below  held, 
while  it  is  true  Section  1  of  the  Act  of  June  4, 1901,  P.  L. 
431,  authorizes  a  lien  in  favor  of  an  architect  who  draws 
plans  and  specifications  for  the  work,  and  also  superin- 
tends the  erection  of  the  structure  or  other  improvement ; 
yet  this  provision  is  unconstitutional  because  it  is  an 
extension  of  the  right  to  file  a  lien  beyond  that  existing 
at  the  time  of  the  adoption  of  the  Constitution  of  1874, 
and  under  Page  v.  Carr,  232  Pa.  371,  and  kindred  cases, 
such  an  extension  is  within  the  inhibition  of  Article  III, 
Section  7  of  the  Constitution.  The  majority  opinion  does 
not  make  this  error,  which  consists  in  the  assumption 
that  no  such  right  existed  when  the  Constitution  of  1874 
was  adopted.  In  Bank  of  Penna.  v.  Gries,  35  Pa.  423,  we 
held  that  an  architect  who  draws  plans  and  specifications 
of  a  building  and  also  superintends  its  construction,  is 
entitled  to  a  lien.  This  case  is  followed  in  St.  Clair  Coal 
Company  v.  Martz,  75  Pa.  384,  and  Bernheisel  v.  Smoth- 
ers, 5  Pa.  Superior  Ct.  113 ;  and  it  is  also  recognized  in 
Price  v.  Kirk,  90  Pa.  47,  and  Rush  v.  Able,  90 
Pa.  153,  which,  however,  limit  its  application  to  cases 
where  an  architect  superintends  the  work  as  well  as 
draws  the  plans  and  specifications.  There  is  no  author- 
ity to  the  contrary.  In  the  present  case,  as  quoted 
from  the  lien  above,  plaintiff  did  both,  and  therefore 
would  have  been  entitled  to  a  lien  prior  to  1874,  and  is 
now  entitled  to  it  under  Section  1  of  the  Act  of  1901. 

It  is  next  objected  that  the  lien  cannot  be  maintained 
because  it  shows  plaintiff  did  not  complete  the  work  of 
supervision,  the  averment  being  "the  said  Richard  L. 
Wallace  [owner]  refused  to  permit  the  said  claimant  to 
continue  the  supervision  of  the  unfinished  portion  of  said 
work  in  violation  of  the  terms  of  the  aforesaid  contract." 

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182  DYER,  Appellant,  v.  WALLACE. 

Dissenting  Opinion.  [264  Pa. 

In  Bank  v.  Gries,  supra,  it  was  held  an  architect  who  is 
employed  to  draw  plans  for  and  supervise  the  construc- 
tion of  a  building,  is  entitled  to  the  full  amount  of  his 
contract,  although  the  work  was  stopped  by  the  owner 
before  it  was  completed.  It  is  not  necessary  at  this 
time  to  consider  how  far,  if  at  all,  the  matter  is  affected 
by  Deeds  v.  Imperial  Brick  Company,  219  Pa.  579,  and 
Murphy  v.  Bear,  240  Pa.  448,  especially  as  in  the  former 
mechanic's  lien  case  it  was  held  to  be  erroneous  to  say 
that  one  employed  to  superintend  the  construction  of  a 
building  may  recover,  after  a  wrongful  discharge,  the 
entire  commissions  he  would  have  received  had  he  con- 
tinued so  to  do  until  completion,  and  equally  erroneous 
to  hold  he  would  be  entitled  to  be  paid  for  his  superin- 
tendence only  up  to  the  time  of  his  discharge.  In  the 
present  case  the  plans  were  prepared,  a  portion  of  the 
services  of  superintendence  was  unquestionably  ren- 
dered, plaintiff  was  entitled  to  a  lien  for  at  least  as  much 
as  they  were  worth,  and  the  motion  to  strike  off  the  whole 
lien  should  fail. 

The  exact  point  of  divergence  between  the  majority  of 
the  court  and  myself  is  found  in  the  inquiry :  Can  a  con- 
tractor who  has  been  wrongfully  refused  permission  to 
finish  his  contract,  recover  for  work  actually  done,  with- 
out setting  forth  in  his  lien  an  apportionment  as  be- 
tween the  work  done  and  that  not  done?  If  an  appor- 
tionment was  requisite,  still  the  judgment  below  should 
be  reversed,  for  that  question  is  not  raised  by  the  mo- 
tion to  strike  off,  defendant's  contention,  as  above  quoted, 
being  that  the  character  of  services  performed  was  not 
such  as  to  entitle  plaintiff  to  a  lien.  That  omission,  if  it 
be  one,  was  amendable,  and  the  lien  doubtless  would  have 
been  so  amended  had  objection  been  made  on  that  ground. 
But  in  this  case  it  was  not  required.  If  the  contract  had 
been  for  a  gross  sum,  perhaps  it  would  have  been  (though 
even  there,  in  my  judgment,  it  would  have  been  a  matter 
for  the  jury,  in  view  of  plaintiff's  strict  compliance  with 
the  act  of  assembly) ;  but  where,  as  here,  the  contract  is 


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DYER,  Appellant,  v.  WALLACE.  168 

1919.]  Dissenting  Opinion, 

made  directly  with  the  owner,  and  the  extent  of  the  re- 
covery is  measured  by  a  percentage  of  a  number  of  items, 
and  the  cost  of  any  one  thereof  is  averred,  a  rule  to  strike 
off  the  whole  lien  should  not  prevail :  McOistal  v.  Coch- 
ran, supra.  Of  course  "the  lien  must  be  self-sustaining" ; 
but  that  only  means  every  requisite  of  the  claim,  as  pre- 
scribed by  law,  must  appear  therein,  or  be  fairly  de- 
ducible therefrom :  Willson  v.  Canevin,  supra;  Chapman 
v.  Faith,  supra.  In  the  present  case,  as  shown  above, 
every  requisite  of  the  act  of  assembly  has  been  complied 
with,  and  no  principal  applicable  to  mechanics'  liens  has 
been  violated.  In  my  opinion,  therefore,  the  order  strik- 
ing off  the  lien  should  be  reversed,  the  lien  reinstated, 
and  a  procedendo  awarded. 


Padden's  Contested  Election. 

Election  law — Amendment — Appeal — Practice,  Supreme  Court — 
Assignments  of  error. 

1.  On  an  appeal  to  the  Supreme  Court  in  an  election  contest,  the 
appellant  will  not  be  permitted  to  raise  questions  of  law  not  raised 
in  the  court  below,  by  an  amendment  to  the  original  petition,  add- 
ing certain  averments  and  a  prayer  that  the  "entire  return  may  be 
thrown  out." 

2.  Assignments  of  error  on  an  appeal  in  an  election  contest,  will 
not  be  considered,  where  they  fail  to  set  out  the  matter  complained 
of  in  totidem  verbis,  or  to  indicate  the  page  in  the  paper-book  or 
appendix  where  the  matter  included  may  be  found. 

3.  On  such  an  appeal,  if  the  material  instances  wherein  the 
master  and  the  court  below  differ,  involve  findings  or  statements 
of  fact  by  the  latter,  such  findings  or  statements  must  be  accepted 
by  the  appellate  court 

Argued  Feb.  25, 1919.  Appeal,  No.  290,  Jan.  T.,  1919, 
by  Nodh  Thomas,  Jacob  Yerka  et  al.,  from  order  of  Q.  S. 
Lackawanna  Co.,  Dec.  T.,  1918,  No.  122,  sustaining  ex- 
ceptions to  master's  report  In  re  Contested  Election  of 
Thomas  Padden.  Before  Brown,  C.  J.,  Stewart, 
Mosohziskbr,  Frazbr  and  Kephart,  J  J.   Affirmed. 


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184  PADDEN'S  CONTESTED  ELECTION. 

Statement  of  Facta— Opinion  of  the  Court      [264  Pa. 

Petition  in  election  contest. 

The  case  was  referred  to  Henry  Needle,  Esq.,  as  ex- 
aminer, who  reported  in  favor  of  the  contestant.  Excep- 
tions to  his  report  were  sustained,  and  an  order  was 
entered  in  favor  of  the  respondent.  Petitioners  for  the 
contest  appealed. 

Errors  assigned  were  the  decree,  and  various  rulings 
as  to  the  qualifications  and  disqualifications  of  voters. 

A.  A.  Vosburg,  with  him  A.  8.  Prokopovitch,  for  ap- 
pellants. 

David  J.  Reedy,  with  him  jB.  W.  Rymer  and  M .  J.  Mar- 
tin, for  appellee. 

Opinion  by  Mr.  Justice  Moschziskbr,  March  17, 
1919: 

After  the  November  election,  1915,  Thomas  Padden 
was  duly  certified  as  elected  a  member  of  council,  on  the 
Democratic  and  Lower  Tax  tickets,  from  the  Third  Ward 
of  Dickson  City  Borough;  whereupon  Anthony  Sho- 
nieszka,  the  Republican  candidate,  entered  a  contest  in 
the  court  below.  An  examiner  was  appointed,  who  re- 
ported that  contestant  had  been  chosen  by  a  majority  of 
one  vote ;  exceptions  filed  by  Padden  were  sustained,  and 
the  court  entered  a  decree  adjudging  him  entitled  to  the 
office;  the  petitioners  for  the  contest  have  appealed. 

Appellants  assert  that  the  election,  as  conducted,  vio- 
lated the  law  in  several  respects ;  they  ask  that  it  be  de- 
clared void  and  set  aside.  Such  relief  was  not 
prayed  in  the  court  below ;  but,  when  the  case  was  called 
for  argument  before  us,  a  petition  was  presented  re- 
questing that  an  amendment  to  the  original  petition  for 
contest,  adding  certain  averments  and  a  prayer  that  the 
"entire  return  may  be  thrown  out,"  should  be  allowed  at 
bar.  No  authority  justifying  this  most  unusual  applica- 
tion has  been  cited,  and  it  will  not  be  granted ;  nor  shall 


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PADDEN^  CONTESTED  ELECTION.  185 

1919.]  Opinion  of  the  Court, 

we  discuss  the  several  reasons  urged  by  appellant  in  sup- 
port thereof,  for  none  of  them  is  appropriate  to  any  speci- 
fication of  error. 

Not  an  assignment,  except  the  first,  which  recites  the 
final  decree,  is  in  due  form ;  most  of  them  are  defective 
in  failing  to  set  out  the  matter  complained  of  in  totidem 
verbis,  and  none  indicates  the  page  in  the  paper-book 
or  appendix  where  the  matter  included  may  be  found. 
Under  the  circumstances,  we  shall  not  discuss  in  detail 
any  of  the  subjects  attempted  to  be  brought  up  by  these 
faulty  assignments ;  but  simply  state  that  a  thorough  ex- 
amination of  such  parts  of  the  record  as  are  properly 
before  us  (see  Foy's  Election,  228  Pa.  14, 16;  Cramer's 
Election,  248  Pa.  208,  211;  Pfaff  v.  Bacon,  249  Pa.  297, 
308)  do  not  show  reversible  error.  The  material  instan- 
ces where  the  master  and  the  court  below  differ  involve 
findings  or  statements  of  fact  by  the  latter,  which  must 
be  accepted  by  us. 

The  appeal  is  dismissed  at  cost  of  appellants. 


Ellett,  Appellant,  v.  Lit  Brothers,  Inc. 

Negligence — Master  and  servant — FaXl  of  grit  or  dust  from  ceil- 
ing— Continuing  work — Belying  on  promise  of  employer — Risk  of 
employment — Allegata  et  probata — Guessing  at  cause  of  accident — 
Nonsuit. 

1.  In  an  action  by  an  employee  against  her  employer  to  recover 
damages  for  injuries  to  her  eyes  from  the  fall  of  grit  or  dust  from 
the  ceiling  in  the  room  where  she  was  employed,  a  nonsuit  is  prop- 
erly entered,  where  plaintiff  testifies  that  the  grit  or  dust  fell  im- 
mediately after  a  crash  in  the  floor  above,  without  any  proof  what- 
ever as  to  who  or  what  caused  the  crash,  or  even  that  the  floor  above 
was  under  the  control  of  the  defendant. 

2.  In  such  a  case  where  plaintiff  testifies  that  two  crashes  oc- 
curred on  the  floor  above  on  the  same  day  and  prior  to  the  one 
which  dislodged  the  dust,  and  that  she  had  complained  to  the  fore- 
man about  it,  she  cannot  recover,  if  she  fails  both  in  her  pleadings 
and  in  her  proof,  to  show  that  she  continued  to  work  in  reliance 
upon  any  promise  made  to  her  upon  her  complaint. 


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186     ELLBTT,  Appellant,  v.  LIT  BROTHERS,  INC. 

Statement  of  Facta — Opinion  of  the  Oourt  [264  Pa. 
Argued  Jan.  23, 1919.  Appeal,  No.  195,  Jan.  T.,  1919, 
by  plaintiff,  from  order  of  C.  P.  No.  5,  Philadelphia  Co., 
Dec.  T.,  1913,  No.  562,  refusing  to  take  off  nonsuit  in 
case  of  Sarah  P.  Ellett  v.  Lit  Brothers,  Incorporated. 
Before  Brown,  C.  J.,  Stewart,  Fbazbb,  Walling  and 
Simpson,  JJ.    Affirmed. 

Trespass  to  recover  damages  for  injuries  to  plaintiff's 
eyes.    Before  Monaghan,  J. 

At  the  trial  the  court  entered  a  compulsory  nonsuit 
which  it  subsequently  refused  to  take  off. 

Error  assigned  was  refusal  to  take  off  nonsuit 

Michael  Geraghty,  with  him  Simon  0.  Raken  and  A. 
Culver  Boyd,  for  appellant. — Defendants  had,  or  should 
have  had,  knowledge  of  the  dangerous  condition  of  the 
ceiling  of  the  room  in  which  plaintiff  was  working,  and, 
therefore,  failed  in  their  duty  to  plaintiff  to  furnish  her 
a  reasonably  safe  place  in  which  to  work :  Sheetram  v. 
Trexler  Stave  &  Lumber  Co.,  18  Pa.  Superior  Ct.  219;  , 
O'Brien  v.  Sullivan,  195  Pa.  474. 

Failure  of  defendants  to  repair  the  defective  ceiling 
was  evidence  of  negligence  which  required  the  submis- 
sion of  the  case  to  the  jury :  Finnerty  v.  Burnham,  205 
Pa.  305. 

The  question  of  the  plaintiff's  contributory  negligence 
was  for  the  jury :  Polenske  v.  Lit  Bros.,  18  Pa.  Superior 
Ct.  474;  Penna.  Canal  Co.  v.  Bentley,  66  Pa.  30;  Shafer 
v.  Lacock,  Hawthorn  &  Co.,  168  Pa.  497. 

F.  B.  Bracken,  for  appellee. 

Opinion  by  Mr.  Chibp  Justice  Brown,  Marcfi  2£, 
1919: 

The  appellant,  plaintiff  below,  was  employed  as  a 
seamstress  by  the  defendant,  and  at  the  time  she  sus- 
tained the  injuries  of  which  she  complains,  had  been  in 

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ELLETT,  Appellant,  v.  LIT  BROTHERS,  INC.      187 
1919.]  Opinion  of  the  Court. 

its  employ  for  about  two  years.  Her  cause  of  action,  as 
set  forth  in  her  statement  of  claim,  is  that  "on  or  about 
November  29,  1911,  she  was  working  in  a  department 
store  conducted  and  operated  by  the  defendant;  that  it 
was  the  duty  of  the  defendant,  by  a  proper  inspection  of 
the  building,  to  see  that  the  same  was  maintained  and 
kept  in  a  reasonably  safe  and  proper  condition  and  rea- 
sonably safe  for  the  use  of  the  plaintiff  as  a  place  of  em- 
ployment; that  the  defendant  wholly  neglected  and 
failed  to  perform  its  said  duty  in  the  premises,  so  that  on 
or  about  the  day  and  year  aforesaid,  while  the  plaintiff, 
in  the  course  of  her  employment,  was  at  work  on  the  third 
floor  of  the  said  department  store,  sewing  for  the  defend- 
ant, some  person  or  persons  employed  by  it  on  the  fourth 
floor  of  the  building,  immediately  over  the  place  occupied 
by  the  plaintiff,  dropped  or  threw  some  heavy  object  or 
objects  on  said  fourth  floor,  causing  some  plaster  in  the 
ceiling  above  plaintiff  to  be  violently  dislodged  and 
showered  on  her,  small  pieces  of  the  same  falling  into  her 
eyes  and  very  seriously  and  permanently  injuring  the 
same." 

The  plaintiff,  who  was  the  only  witness  called  to  testi- 
fy as  to  the  occurrence,  stated  that  the  ceiling  was  not 
plastered,  but  was  a  wainscoting  of  boards,  fitted  to- 
gether by  tongue  and  groove.  At  the  close  of  the  testi- 
mony a  motion  was  made  for  the  entry  of  a  nonsuit,  and 
the  learned  trial  judge,  in  the  course  of  his  remarks  on 
the  motion,  intimated  that  it  would  have  to  be  granted, 
because  the  case  as  made  out  was  not  in  accord  with  the 
pleadings,  for  the  ceiling  not  having  been  plastered,  no 
plaster  could  have  fallen  from  it.  Thereupon  a  motion 
was  made  to  amend  the  statement  by  inserting  after  the 
word  "plaster,"  "grit  or  dust  or  sand,"  the  plaintiff  hav- 
ing stated  that  grit  from  the  ceiling  had  fallen  upon  her. 
The  statement  was  further  amended  by  adding,  "And 
the  said  defendant  assured  and  promised  the  plaintiff 
that  it  would  keep  the  said  place  in  a  proper  manner  and 
condition  for  the  purpose  of  her  employment  and  the  de- 


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188     ELLBTT,  Appellant,  v.  LIT  BROTHERS,  INC. 

Opinion  of  the  Court.  [264  Pa. 

fendant  failed  in  its  duty  owing  to  the  plaintiff  to  keep 
the  said  place  of  employment  where  she  was  engaged  in 
a  cleanly  condition,  and  by  reason  of  its  failure  to  do  so 
the  aforesaid  accident  occurred  to  her."  The  amend- 
ments were  allowed,  but  the  trial  judge  being  of 
opinion  that  they  did  not  help  the  plaintiff,  in  view  of  the 
evidence  submitted,  granted  the  motion  for  the  nonsuit, 
and  the  court  subsequently  discharged  the  rule  to  take  it 
off. 

If  grit,  dust  or  sand  fell  from  the  ceiling  into  the  eyes 
of  the  plaintiff,  there  was  no  evidence  showing  that  it 
fell  as  the  result  of  any  negligence  on  the  part  of  the  de- 
fendant. The  plaintiff  testified  that  it  fell  immediately 
after  the  crash  on  the  fourth  floor,  and  it  may  be  fairly 
inferred  that  the  crash  caused  it  to  fall.  If  so,  the  proxi- 
mate cause  of  the  injuries  was  the  crash;  but  who  or 
what  caused  it?  There  is  no  proof,  but  only  a  guess,  as  to 
this.  The  burden  of  proof  was  on  the  plaintiff,  not  only 
to  prove  the  accident,  but  some  specific  act  of  negli- 
gence from  which  it  resulted.  The  case  as  pre- 
sented by  her,  if  it  had  been  submitted  to  the 
jury,  would  have  been  an  invitation  to  them  to 
guess  at  the  cause  of  the  accident  and  to  infer  negli- 
gence against  the  employer  from  the  mere  fact  of  its 
happening.  Its  submission  to  them  would,  therefore, 
have  been  error:  Snodgrass  v.  Carnegie  Steel  Company, 
173  Pa.  228;  Forte  v.  Markle  Company,  258  Pa.  194. 
There  was  not  even  evidence  that  the  fourth  floor  was 
under  the  control  of  the  defendant,  but  if  it  was,  it  did 
not  appear  who  or  what  was  responsible  for  the  crash 
upon  it.  If  it  had  been  caused  by  a  stranger,  or  by  a  co- 
employee  of  the  plaintiff,  or  been  the  result  of  an  un- 
avoidable accident,  she  had  no  right  of  action  against 
the  defendant.  As  to  this  the  learned  court  below,  in  dis- 
charging the  rule  to  take  off  the  nonsuit,  properly  said : 
"The  plaintiffs  case  is  based  upon  the  supposition  that 
the  crash  resulting  in  the  injury  was  caused  by  an  em- 
ployee of  the  defendant.    It  is,  on  the  proofs  adduced, 


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ELLBTT,  Appellant,  v.  LIT  BROTHERS,  INC.     18? 
1919.]  Opinion  of  the  Court, 

just  as  supposable  that  it  was  caused  by  a  stranger,  or  by 
a  fellow  servant,  or  because  of  some  circumstances  over 

which  the  employer  had  no  control 'The  trouble 

with  the  plaintiffs  case  is,  that  it  rests  wholly  on  a  sup- 
posable theory  not  supported  by  established  facts 

Over  and  over  we  have  held  that  there  can  be  no  recovery 
under  such  circumstances.  To  permit  it  would  be  to 
allow  recovery  on  mere  proof  of  accident.'  Alexander 
y.  Penna.  Water  Co.,  201  Pa.  252." 

Plaintiff  testified  that  two  crashes  had  occurred  on  the 
fourth  floor  before  the  one  on  the  day  of  the  falling  of  the 
grit,  and  that  she  had  called  the  attention  of  the  f  orelady 
to  it,  who  said,  "Don't  you  worry,  I  will  go  right  down  to 
the  office  and  report  it  sfi,  once  and  have  it  attended  to  at 
once."  But  she  failed  either  to  aver  in  her  pleadings  or 
state  in  her  testimony  that  she  continued  to  work  in 
reliance  upon  the  promise  made  to  her.  "In  order  to 
overcome  the  defense  of  assumption  of  risk,  in  an  action 
under  the  common  law,  the  employee  must  show  affirma- 
tively, not  only  that  he  complained  of  the  danger,  and 
that  the  employer  promised  to  correct  it,  but  that  in  con- 
tinuing to  work  he  relied  on  that  promise.  Otherwise, 
he  must  be  held  to  have  assumed  the  risk.  In  4  Labatt 
on  Master  and  Servant,  Section  1345,  the  rule  is  thus 
stated :  *Af  ter  the  servant  has  shown  that  there  has  been 
a  promise,  actual  or  implied,  on  the  part  of  the  master, 
and  that  this  promise  amounts  to  an  undertaking  to  re- 
move not  only  the  danger,  but  a  danger  by  which  he  him- 
self is  threatened,  he  still  has  the  onus  of  proving  that 
the  inducing  motive  of  his  continuance  in  the  employ- 
ment was  his  reliance  upon  the  fulfillment  of  the  prom- 
ise.' Our  cases  recognize  this  rule.  Thus  in  Webster  v. 
jMonongahela  River  Consolidated  Coal  &  Coke  Co.,  201 
Pa.  278 ;  Foster  v.  National  Steel  Co.,  216  Pa.  279 ;  Hol- 
lis  v.  Widener,  221  Pa.  72;  Glass  v.  College  Hill  Boro., 
233  Pa.  457;  Pfeifer  v.  Allegheny  Steel  Co.,  243  Pa.  256, 
there  is  substantial  agreement  in  emphasizing  the  fact 
that  it  appeared  affirmatively  from  the  evidence  in  each 


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190     ELLETT,  Appellant,  v.  LIT  BROTHERS,  INC. 

Opinion  of  the  Court.  [264  Fa. 

case  that  the  employee  continued  to  work,  because  he 
relied  on  the  employer's  promise.  Nothing  of  that  kind 
was  shown  in  the  present  case" :  Dobra  v.  Lehigh  Valley 
Coal  Company,  250  Pa.  313. 

The  assignments  of  error  are  overruled  and  the  judg- 
ment is  affirmed. 


Samuel  et  aL,  Appellants,  v.  Delaware  Eiver 
Steel  Co. 

Contract — Sale — Warranty — Acceptance  and  implied  warranty — 
Notice — Goods  not  ordered — Measure  of  damages. 

1.  Where  in  an  action  for  goods  sold  and  delivered,  it  appears 
that  defendant  purchased  by  description  roll  scale,  a  byproduct  of  a 
rolling  mill,  but  that  the  plaintiff  delivered  mill  cinder,  which  is  a 
commodity  different  in  substance  and  value  from  roll  scale,  and 
that  this  was  received  and  used  without  complaint  or  offer  to  re- 
turn, the  defendant  can  only  be  held  for  the  market  value  of  the 
mill  cinder  delivered;  but  if  the  plaintiffs  submit  evidence,  al- 
though contradicted,  from  which  the  jury  might  conclude  that 
the  material  delivered  was,  in  fact,  roll  scale,  as  called  for  by  the 
contract,  the  case  must  be  submitted  to  a  jury. 

2.  The  implied  warranty  that  the  material  was  of  the  kind 
ordered,  is  one  which  survived  the  acceptance  and  use  of  the  ma- 
terial by  defendant,  without  previous  notice  to  plaintiffs. 

Argued  Feb.  10, 1919.  Appeal,  No.  165,  Jan.  T.,  1919, 
by  plaintiffs,  from  judgment  of  Superior  Court,  Oct.  T., 
1917,  No.  4,  reversing  judgment  of  C.  P.  Del.  Co.,  Sept. 
T.,  1915,  No.  63,  on  verdict  for  plaintiffs  in  case  of  Frank 
Samuel,  Silas  M.  Tomlinson  and  S.  A.  Cochran,  trading 
as  Frank  Samuel,  v.  Delaware  River  Steel  Company. 
Before  Brown,  C.  J.,  Stewart,  Frazbr,  Walling  and 
Simpson,  JJ.    Judgment  modified. 

Appeal  from  judgment  of  Superior  Court.  See  '69  Pa. 
Superior  Ct.  605. 

The  Superior  Court  reversed  the  judgment  of  the  Court 
of  Common  Pleas  of  Delaware  County. 


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SAMUEL  et  aL,  Appellants,  v.  DEL.  R.  STEEL  CO.  191 
1919.]  Assignment  of  Error— Opinion  of  the  Court. 

Error  assigned  was  order  reversing  judgment  of  the 
common  pleas. 

Lewis  Lawrence  Smith,  for  appellants. 

E.  Wallace  Chadwiek,  with  him  William  I.  Schaffer, 
for  appellee.  # 

Opinion  by  Mb.  Justice  Fbazeb,  March  24, 1919 : 
Defendant  purchased  from  plaintiffs,  who  are  brokers 
in  steel  and  iron  products  with  offices  in  the  City  of 
Philadelphia,  two  carloads  of  a  commodity  known  in  the 
trade  as  "roll  scale"  to  be  delivered  to  defendant  at 
Chester,  Pa.  Plaintiffs  purchased  the  roll  scale  from 
the  Lebanon  Valley  Iron  &  Steel  Company  and  ordered 
that  shipment  be  made  directly  to  defendant's  mill. 
Upon  receipt  and  unloading  of  the  material  it  was  dis- 
covered, as  alleged  by  defendant,  the  contents  of  one  of 
the  two  cars  contained  largely  mill  cinder,  a  product  of 
less  value  than  roll  scale :  the  entire  shipment,  however, 
was  used  within  twenty-four  hours  following  its  de- 
livery. A  week  later  a  formal  written  complaint  was 
made  by  defendant  to  the  effect  that  the  material  con- 
tained in  one  of  the  cars  consisted  approximately  of 
seventy-five  per  cent  cinder  and  twenty-five  per  cent  roll 
scale,  and  that  it  would  expect  the  bill  to  be  rendered  on 
the  basis  of  the  material  contained  in  the  car.  Defend- 
ant subsequently  proposed  to  pay  the  market  price  of 
cinder.  This  offer  plaintiff  refused  to  accept  contending 
the  product  delivered  was  roll  scale,  and  further, 
even  if  it  were  not  such  product,  defendant  by  accepting 
and  using  the  contents  of  the  car,  before  making  com- 
plaint, waived  the  right  to  object  that  it  was  not  the 
article  ordered.  The  trial  judge  submitted  to  the  jury 
the  questions  whether  the  material  delivered  was  roll 
scale  or  mill  cinder  with  the  further  instruction  that  if 
they  found  it  was  mill  cinder,  to  determine  whether  it 
was  practicable  for  defendant  to  have  offered  to  return 


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192  SAMUEL  et  al.,  Appellants,  v.  DEL.  B.  STEEL  CO. 

Opinion  of  the  Court.  [264  Pa 

the  product,  and  that  if  mill  cinder  was  delivered,  if  de- 
fendant discovered  that  fact  before  the  material  was 
used,  there  should  have  .been  an  offer  to  return,  and,  in 
absence  of  such  offer,  defendant  would  be  liable  for  the 
contract  price.  A  verdict  for  plaintiffs  was  rendered  for 
the  difference  between  the  amount  paid  by  defendant  and 
the  jfHce  of  roll  scale,  and  subsequent  motions  by  defend- 
ant for  a  new  trial  and  for  judgment  non  obstante  vere- 
dicto were  refused  on  the  ground  that  defendant's  duty, 
upon  discovering  the  material  received  was  not  of  the 
kind  ordered,  was  to  notify  plaintiffs  of  that  fact  before 
using  it.  On  appeal  to  the  Superior  Court  the  judgment 
of  the  court  below  was  reversed,  the  former  court  saying 
the  court  below  "fell  into  error  when  it  affirmed,  as  a 
proposition  of  law,  that  where  the  vendee  receives  an 
article  of  a  different  kind  from  that  ordered  and  without 
an  effort  to  redeliver,  or,  where  the  vendee,  without  pro- 
test or  complaint,  accepts  and  uses  the  article,  he  thereby 
waives  the  warranty,  or  treats  the  warranty  as  per- 
formed and  is  liable  on  the  contract  price."  In  revers- 
ing the  Superior  Court  directed  the  entry  of  judgment 
for  defendant  non  obstante  veredicto  and  from  the  judg- 
ment so  entered  the  present  appeal  was  allowed  to  this 
court 

There  can  be  no  question  that  the  rule  established  by 
the  decisions  of  this  court  is  that  an  implied  warranty 
attaches,  in  the  sale  of  the  chattel  by  description  or  sam- 
ple, that  the  article  shall  be  of  the  kind  ordered:  Borre- 
kins  v.  Bevan,  3  Rawle  23 ;  Selser  v.  Roberts,  105  Pa. 
242;  Holloway  v.  Jacoby,  120  Pa.  583;  Armstrong  v. 
Descalzi,  48  Pa.  Superior  Ct.  171.  Where  there  is  an 
express  warranty  the  general  rule  is  that  it  survives  ac- 
ceptance of  the  goods  and  the  purchaser  may  thereafter 
sue  for  the  breach  of  the  warranty,  or  may  set  off  dam- 
ages for  such  breach  against  an  action  for  the  purchase- 
price  of  the  goods. 

^  The  question  raised  in  this  record  is  whether  the  im- 
plied warranty,  that  the  material  was  of  the  kind  or- 


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SAMUEL  et  al.,  Appellants,  u.  DEL.  R.  STEEL.CO.  193  ->  -    -. 

1919.]  Opinion  of  the  Court.  j      * 

dered,  was  also  one  which  survived  the  acceptance  and  vl   ./. 

use  of  the  material  by  defendant,  without  previous  notice  *     u 

to  plaintiffs.    This  question  is  one  concerning  which  we  ^   % 

find  considerable  conflict  of  judicial  opinion  in  the  differ- 
ent jurisdictions.  The  weight  of  authority  in  other  juris- 
dictions, however,  seems  to  be  that  the  implied  warranty, 
like  the  express,  survives  acceptance  even  though  the  de- 
fects were  known  at  the  time  the  commodity  was  ac- 
cepted and  used.  See  cases  cited  in  Note  35  L.  K.  A.,  N. 
S.  501,  507.  This  rule  has  been  adopted  in  Pennsylvania; 
in  the  cases  above  cited  and  the  law  as  there  stated  watf^~ 
properly  applied  by  the  Superior  Court  in  disposing  of 
the  appeal. 

That  court  fell  into  error,  however,  in  directing  judg- 
ment for  defendant  non  obstante  veredicto.  Plaintiffs 
submitted  evidence  from  which  the  jury  might  conclude 
that  the  material  delivered  was,  in  fact,  roll  scale  as 
called  for  by  the  contract.  While  this  evidence  is 
contradicted,  it,  nevertheless,  raises  a  question  of  fact 
for  the  jury.  Plaintiffs  are,  consequently,  entitled  to  an 
opportunity  to  show,  if  they  can,  they  in  fact  delivered 
the  material  ordered  and  for  this  reason  the  appeal  must 
be  sustained. 

The  judgment  of  the  Superior  Court  is  modified  and 
the  record  remitted  to  the  court  of  common  pleas  for  a 
new  trial,  in  accordance  with  the  principles  of  law  laid 
down  in  this  opinion  and  the  opinion  of  the  Superior 
Court. 


American  Surety  Co.  of  New  York,  Appellant,  v. 
Vandegrift  Construction  Co.  et  al. 

Attachment  execution — Settlement  of  accounts — Evidence — Pay" 
ment — Overpayment — Fraud. 

1.  On  an  attachment  execution,  a  judgment  on  a  verdict  in  favor 
of  the  garnishee  will  be  sustained,  where  it  appears  that  the  de- 
fendant, a  contractor,  was  building  a  railway  for  the  garnishee; 
that,  on  a  settlement  of  accounts  between  defendant  and  garnishee 
Vol.  cclxiv— 13 

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194  AMEBICAN  S.  CO.,  AppeL,  v.  VANDERGRIFT  C.  CO. 

Syllabus.  [264  Pa. 

one  week  after  the  attachment  was  issued,  it  was  discovered  that 
the  defendant,  who  had  been  paid  for  his  work  in  bonds,  had  re- 
ceived by  mistake  or  inadvertence  $17,500  of  bonds  in  excess  of 
what  was  due  him;  that  the  bonds  had  been  delivered  to  defend- 
ant without  strict  regard  to  estimates,  as  the  work  progressed,  in 
order  to  facilitate  their  sale;  and  that  these  particular  bonds  had 
been  delivered  to  defendant  before  the  attachment  issued,  but 
that  the  credits  therefore,  by  defendant's  direction,  had  not  been 
made  until  after  that  date. 

2.  In  such  a  case  the  plaintiff  cannot  contend  that  since  the 
bonds  were  given  defendant,  they  belonged  to  him,  and  not  to  the 
garnishee,  and  that  after  the  attachment  was  served,  neither  the 
status  of  such  securities  nor  the  proceeds  from  the  sale  thereof, 
could  in  any  manner  be  changed  by  a  settlement  of  the  accounts 
between  the  defendant  and  garnishee  in  which  plaintiff  took  no 
part. 

3.  The  real  question  was  whether  the  garnishee  owed  defendant 
anything  when  the  attachment  was  served.  If,  at  the  time,  de- 
fendant was  overpaid,  and  a  balance  of  the  account  was  due  the 
garnishee,  an  adjustment  in  good  faith  of  that  balance,  even  after 
the  date  of  the  attachment,  by  paying  back  the  proceeds  from  the 
sale  of  the  bonds  inadvertently  advanced,  could  not  make  the  funds 
thus  received  by  the  garnishee  subject  to  the  attachment,  for  these 
bonds,  in  reality,  never  belonged  to  defendant. 

4.  On  an  attachment  execution,  where  a  traction  company  for 
which  the  defendant,  under  a  contract,  is  building  a  railway,  is 
served  as  garnishee,  a  claim  that  an  initial  payment  in  cash  to 
which  defendant  was  entitled  under  the  contract,  had  not  in  fact 
been  paid  to  him  by  the  garnishee,  is  not  sustained  by  evidence  to 
the  effect,  that  the  check  for  that  amount,  of  a  railway  company, 
with  whom  defendant  had  also  a  construction  contract,  was  given 
to  the  traction  company,  the  garnishee,  which  on  the  same  day, 
gave  its  check  to  defendant  for  a  like  amount,  and  this  or  the  lat- 
ter^ check  for  the  same  amount,  was  given  to  the  railway  com- 
pany; that  all  these  checks  were  drawn  upon  the  same  company; 
and  that  the  total  capital  stock  of  the  garnishee  amounted  exactly 
to  the  amount  represented  by  the  checks.  Such  evidence  shows 
that  the  railway  company  had  either  actual  cash  in  bank  or  suf- 
ficient credit  to  meet  the  check  given  to  the  garnishee,  and  that 
upon  the  deposit  of  such  check  the  latter  had  an  adequate  balance 
to  its  credit,  when  it  made  the  payment  to  defendant  in  absence  of 
allegation  or  proof  of  fraud. 

Evidence — Expert  testimony — Books  of  account. 

5.  Where  the  journal  of  a  corporation  is  produced  in  evidence 
at  the  trial  of  a  cause,  but  no  other  books  of  the  corporation  are 


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AMERICAN  S.  CO.,  Appel.,  v.  VANDERGRIFT  C.  CO.  195 

1919.]  Syllabus— Arguments, 

offered,  the  trial  judge  commits  no  error  in  refusing  to  permit  an 
expert  bookkeeper  to  express  an  opinion  as  to  what  the  journal  en- 
tries indicated.  If  the  other  books  had  been  produced,  they  might 
well  have  explained  the  meaning  of  the  journal  entries. 

Practice,  C.  P. — Charge — Points — Evidence. 

6.  A  point  for  charge  is  properly  refused  where  neither  the  evi- 
dence produced,  nor  that  tendered,  sustains  the  facts  set  forth  in 
the  point. 

Argued  Feb.  17,  1919.  Appeal,  No.  2,  Jan.  T.,  1919, 
by  plaintiff,  from  judgment  of  C.  P.  Lebanon  Co.,  June 
T.,  1915,  No.  11,  on  verdict  for  garnishee,  in  case  of 
American  Surety  Co.  of  New  York  v.  Vandegrift  Con- 
struction Co.  and  James  N.  Vandegrift  and  Joseph  A. 
Vandegrift,  defendants,  and  Ephrata  &  Lebanon  Trac- 
tion Co.,  Garnishee.  Before  Brown,  C.  J.,  Stewart, 
Moschziskbr,  Walling  and  Kbphart,  J  J.    Affirmed. 

Attachment  execution.    Before  Henry,  P.  J. 
Verdict  and  judgment  for  garnishee.     Plaintiff  ap- 
pealed. 

Errors  assigned  were  various  instructions  and  rulings 
on  evidence. 

Wm.  T.  C.  Anderson,  with  him  Wcwren  G.  Light,  for 
appellant. — Where  the  attachment  execution  is  duly 
served,  it  puts  the  attaching  creditor  in  the  same  rela- 
tion to  the  garnishee  as  was  occupied  by  the  defendant 
before  the  attachment  was  laid :  Fessler  v.  Ellis,  40  Pa. 
248;  Myers  v.  Baltzell,  37  Pa.  491;  Coles  v.  Sellers,  1 
Phila.  533. 

An  attachment  execution  binds  all  moneys  which  may 
come  into  the  garnishee's  possession  from  the  date  of 
service  until  judgment,  even  though  the  writ  is  not  served 
on  the  defendant  until  after  an  assignment  by  him  to 
the  garnishee  of  the  property  attached :  Butter  v.  Ely, 
4  Kulp  348;  Myers  v.  Baltzell,  37  Pa.  491;  Ege  v. 
Koontz,  3  Pa.  109. 

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396  AMERICAN  S.  CO.,  AppeL,  v.  VANDERGRIPT  C.  CO. 
Arguments — Opinion  of  the  Court.  [264  Pa. 

From  the  foregoing  authorities  it  is  plain  that  the  ap- 
pellee's act  in  demanding  and  accepting  from  the  defend- 
ant either  its  own  mortgage  bonds  or  their  agreed  value, 
after  the  appellant's  attachment  had  been  served,  was  in 
contravention  of  its  duties  as  a  garnishee:  Glazier  y. 
Jacobs,  250  Pa.  357. 

That  the  appellant,  under  the  extraordinary  condi- 
tions involved  here,  should  have  been  permitted  to  prove 
the  origin,  progress  and  ultimate  destination  of  the  $34,- 
000  in  question,  is  established  by  the  case  of  Glessner  v. 
Paterson,  164  Pa.  224,  followed  in  Van  Sciver  v.  McPher- 
son,  199  Pa.  331. 

The  attachment  now  before  the  court  substituted  the 
appellant  for  the  defendant  so  far  as  any  change  there- 
after of  the  latter's  rights  was  concerned,  and  these 
rights  are  not  changed  because  corporate  obligations 
form  the  subject-matter  of  the  litigation:  First  Nat. 
Bank  of  Bangor  v.  American  Bangor  Slate  Co.,  229  Pa. 
27. 

Henry  0.  Evans,  of  Evans,  Noble  &  Evans,  for  appel- 
lee.— The  attaching  creditor  stands  in  the  same  relation 
to  the  garnishee  as  was  occupied  by  defendant  before  the 
attachment  was  laid :  Fessler  v.  Ellis,  40  Pa.  248. 

Appellee,  as  garnishee,  has  all  the  rights  of  set-off,  de- 
falcation or  defense  which  arose  from  the  relations  ex- 
isting between  Vandegrift  and  appellee,  at  the  time  of 
the  service :  Myers  v.  Baltzell,  37  Pa.  491. 

An  execution  attachment  does  not  change  the  relations 
with  which  it  interferes  further  than  to  transfer  the 
rights  of  defendant  which  result  from  those  relations: 
Myers  v.  Baltzell,  37  Pa.  491;  Pennell  v.  Grub,  13  Pa. 
551. 

Opinion  by  Mb.  Justice  Moschziskbb,  March  24, 
1919: 

March  4, 1915,  the  American  Surety  Company  of  New 
York,  plaintiff,  a  judgment  creditor  of  Joseph  A.  Van- 


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AMERICAN  S.  CO.,  Appel.,  v.  VANDERGRIPT  C.  CO.  197 
1919.]  Opinion  of  the  Court, 

degrift,  the  defendant,  issued  an  attachment  execution, 
summoning  as  garnishee  the  Ephrata  &  Lebanon  Trac- 
tion Company,  and  another  corporation,  hereinafter  re- 
ferred to  as  the  "railway  company." 

The  attachment  was  duly  served,  and  the  Ephrata  & 
Lebanon  Traction  Company  (with  whose  case  alone  we 
are  concerned  on  the  present  appeal)  answered,  denying 
it  held  any  property  or  owed  any  debts  to  defendant. 
When  the  matter  came  to  trial,  the  jury  found  a  verdict 
in  garnishee's  favor,  upon  which  judgment  was  entered, 
and  plaintiff  has  appealed. 

Defendant  was  engaged  as  a  contractor  in  the  con- 
struction of  a  street  railway  for  the  garnishee  when,  in 
an  effort  to  collect  a  ten-year-old  judgment,  which  plain- 
tiff held  against  defendant,  the  present  attachment  is- 
sued. As  a  result,  defendant,  being  unable  to  finance 
his  contract,  withdrew  therefrom,  and,  at  a  settlement 
of  accounts  between  him  and  the  garnishee,  which  oc- 
curred March  11,  1915,  it  was  discovered  that  he  had 
been  overpaid,  in  bonds  of  the  latter,  some  f  17,500.  In 
other  words,  by  the  terms  of  the  contract  between  de- 
fendant and  garnishee,  the  former  was  entitled  to  receive 
from  the  latter,  for  work  completed  up  to  date  of  service 
of  attachment,  some  $126,800,  whereas,  through  inadvert- 
ence, he  had  been  paid,  in  round  figures,  f  144,300.  So 
that  the  garnishee  not  only  held  no  property  or  credits 
of  defendant,  but,  on  the  contrary,  he  owed  it  the  amount 
of  the  overpayment;  which  was  refunded  by  the  bro- 
kerage firm  that  had  charge  of  marketing  garnishee's 
bonds,  transferring  from  defendant's  to  garnishee's  ac- 
count credits  from  the  sale  of  these  securities,  amounting 
to  |15,312.50,  the  bonds  having  been  sold  at  defendant's 
orders  prior  to  the  attachment,  although  the  transfer 
of  credits  (which  likewise  was  made  at  the  latter's  direc- 
tion) did  not  take  place  till  after  that  date. 

In  explanation  of  the  overpayment,  one  of  garnishee's 
officers  testified  that  to  dispose  advantageously  of  bonds, 
such  as  those  under  discussion,  they  must  be  sold  in  size- 


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198  AMERICAN  S.  CO.,  Appel.,  v.  VANDERGRIPT  C.  CO. 

Opinion  of  the  Court.  [264  Pa. 

able  lots,  within  a  comparatively  short  time.  This  wit- 
ness suggested  the  bonds  in  question  were  paid  defendant 
without  strict  regard  to  estimates,  or  work  actually  done, 
in  order  to  get  them  on  the  market  in  such  lots,  "when 
the  money  would  be  paid  out  on  construction  work  as  it 
went  along" ;  and  that,  in  following  this  course,  the  over- 
payment inadvertently  occurred. 

Plaintiff  contends  that,  since  the  bonds  were  given  de- 
fendant, they  belonged  to  him  and  not  to  the  garnishee, 
and,  after  the  attachment  was  served,  neither  the  status 
of  such  securities  nor  the  proceeds  from  the  sale  thereof 
could  in  any  manner  be  changed  by  a  settlement  of  ac- 
counts between  defendant  and  garnishee  in  which  plain- 
tiff took  no  part;  therefore,  when  either  the  bonds  or 
their  proceeds\were  paid  back  to  the  garnishee,  they  were 
defendant's  property  and,  as  such,  immediately  became 
subject  to  the  previously  levied  attachment. 

The  real  question  upon  which  this  branch  of  the  case 
turns,  however,  is :  Did  the  garnishee  owe  defendant  a 
balance  on  the  contract  when  the  attachment  was  served? 
If  it  did  not,  then  nothing  in  its  hands  became  bound  by 
the  attachment;  and  (if  as  a  matter  of  fact  defendant 
was  at  that  time  overpaid),  the  balance  of  the  account 
being  due  to  garnishee,  an  adjustment,  in  good  faith,  of 
that  balance,  even  after  the  date  of  the  attachment,  by 
paying  back  the  proceeds  from  the  sale  of  bonds  inad- 
vertently advanced  to  defendant,  could  not  make  the 
funds  thus  received  by  the  garnishee  subject  to  the  at- 
tachment, for  those  bonds,  in  reality,  never  belonged  to 
defendant. 

The  facts  on  all  the  issues  involved  in  the  accounting 
between  the  parties,  and  the  good  faith  of  the  repayment 
by  defendant  of  the  balance  due  the  garnishee,  were  sub- 
mitted to  the  jury  and  found  in  favor  of  the  latter.  The 
trial  judge,  summing  up  the  issues  in  hand,  said :  "All 
this  testimony  has  a  bearing  only  upon  whether  the  gar- 
nishee received  these  $17,500  in  bonds,  or  the  proceeds 
of  these  bonds,  or  a  credit  for  the  proceeds,  at  a  time 


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AMERICAN  S.  CO.,  AppeL,  v.  VANDERGRIPT  C.  CO.  199 
1919.]  Opinion  of  the  Court, 

when  Vandegrift  did  not  owe  them  anything.  If  Van- 
degrift  had  been  overpaid  he  owed  them  that  overpay- 
ment Now,  if  this  amount  was  simply  paid  back  to 
square  that  overpayment,  then  your  verdict  should  be  in 
favor  of  the  garnishee  in  this  case.  On  the  other  hand, 
if  it  was  not  paid  back  to  square  that  overpayment,  and 
if  either  these  bonds,  or  the  proceeds,  or  any  part  of  the 
proceeds  legally  belonged  to  Vandegrift  at  the  time  of 
the  attachment,  or  subsequent  thereto,  and  were  in  the 
hands  of  the  garnishee  at  the  time  of  the  service  of  the  at- 
tachment, or  subsequent  thereto,  then  your  verdict 
should  be  in  favor  of  the  plaintiff."  This  practically 
covers  what  was  repeated  in  answers  to  points,  also  com- 
plained of;  and  we  see  no  error  therein. 

Many  of  appellant's  assignments  criticize  rulings,  ad- 
verse to  plaintiff,  upon  offers  of  testimony,  and  instruc- 
tions to  the  jury,  concerning  the  first  payment  made  by 
garnishee  to  defendant  on  the  contract. 

In  connection  with  this  payment,  amounting  to  $34,- 
000,  it  appears  that  the  railway  company  (with  whom 
defendant  also  had  a  construction  contract,  and  who 
likewise  was  served  as  a  garnishee)  had  close  business 
relations  with  the  garnishee  in  this  case.  The  contract 
between  garnishee  and  defendant  provides  that  the  lat- 
ter shall  be  paid  a  consideration  of  $169,625  "consisting 
of  $34,000  in  cash  and  $155,000  of  the  company's  first 

mortgage bonds  at  a  price  of  87%,"  these  payments 

to  be  made  on  "semi-monthly  estimates  of  the  proportion- 
ate amount  of  work  performed,  material  and  equipment 
delivered."  Before  any  substantial  work  had  been 
done,  this  first  payment  of  $34,000  was  made  by  gar- 
nishee to  defendant,  in  the  following  manner :  August  3, 
1914,  a  check  of  the  railway  company  for  $34,000  was 
given  to  garnishee,  who,  on  the  same  day,  gave  its  check 
to  defendant  for  a  like  amount ;  and  this,  or  the  tatter's 
check  for  a  similar  amount,  was,  on  August  5,  1914, 
given  to  the  railway  company.  All  these  checks  were 
drawn  upon  the  same  trust  company;  and,  from  such 


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200  AMERICAN  S.  CO.,  Appel.,  v.  VANDERGRIPT  C.  CO. 

Opinion  of  the  Court.  [264  Pa. 

fact,  together  with  the  farther  circumstance  that  the 
total  capital  stock  of  the  garnishee  amounted  to  exactly 
134,000,  plaintiff  contends  it  could  justifiably  be  found 
that  this  alleged  first  payment  to  defendant  was  "not  in 
fact  made" ;  and,  hence,  he  insists  that,  in  settling  the 
accounts  between  garnishee  and  defendant,  the  sum  of 
|34,000  ought  to  be  deducted  from  the  payments  which 
the  former  claims  to  have  been  made  to  the  latter.  If  this 
course  were  pursued,  it  would  leave  a  considerable  sum 
due  and  owing  by  garnishee  to  defendant,  at  the  date  of 
the  attachment. 

To  "attack  the  genuineness"  of  this  alleged  first  pay- 
ment, plaintiff  offered  to  show  that,  when  the  railway 
company  gave  the  original  check  for  |34,000  to  garnishee, 
the  former  did  not  have  any  such  amount  on  deposit, 
which  offer  the  trial  judge  refused,  together  with  other 
evidence  relating  to  the  facts  stated  by  us  in  the  last 
paragraph;  but,  accepting  all  these  facts  as  though 
proved,  since,  at  the  time  of  the  transaction  in  question, 
garnishee  had  no  knowledge  of  the  debt  due  by  defend- 
ant to  plaintiff,  or  that  defendant  was  indebted  to  any- 
one, and  since  there  was  no  formal  allegation  or  offer  to 
show  that  the  circumstances  attending  the  initial  pay- 
ment of  |34,000  were  either  fraudulently  conceived  or 
put  into  execution  for  the  purpose  of  defrauding  plain- 
tiff, or  other  creditors  of  defendant,  such  facts,  even  if 
proved,  would  not  have  been  in  themselves  sufficient  to 
sustain  a  finding  that  the  payment  of  |34,000  had  not 
actually  been  made;  and  no  other  facts  were  either 
shown  or  tendered  which,  when  taken  with  the  testimony 
refused,  would  sustain  a  finding  to  that  effect. 

True,  the  parties  concerned  in  the  initial  payment 
made  a  departure  from  the  contract  terms  at  that  time, 
in  that  such  payment  undoubtedly  represented  an  ad- 
vance to  defendant  for  work  which  the  estimates  did  no* 
show  to  have  been  done  then ;  but,  in  large  operations, 
such  departures  are  often  made  for  the  convenience  of 
all  concerned,  and,  therefore,  this  circumstance  cannot 


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AMfiEICAN  S.  CO.,  AppeL,  v.  VANDERGRIPT  C.  CO.  201 
1919.]  Opinion  of  the  Court, 

be  given  the  significance  which  plaintiff  would  attach  to 
it ;  nor  would  the  fact,  if  true,  that  actual  money  did  not 
pass,  have  any  special  significance,  for  everyone  familiar 
with  financial  affairs  knows  that  most  of  the  large  busi- 
ness of  the  world  is  transacted  by  a  system  of  credits. 
Here  it  was  shown  that  the  railway  company  had  either 
the  actual  cash  in  bank  or  sufficient  credit  to  meet  its 
draft  of  |34,000,  when  the  check  was  given  to  garnishee, 
and  that,  upon  the  deposit  of  such  check,  the  latter  had 
an  adequate  balance  to  its  credit  when  it  made  the  pay- 
ment to  defendant. 

The  garnishee's  journal  was  in  court,  under  subpoena, 
and  defendant  called  an  expert  bookkeeper  "for  the  pur- 
pose of  showing  that  the  journal  entries  relating  to  the 
(34,000  transaction  indicate  there  was  no  [such]  pay- 
ment made  to  Joseph  A.  Vandegrift."  The  court  re- 
fused this  offer;  and  subsequently,  in  vindication  of  its 
ruling,  stated :  "The  offer  of  the  opinion  of  the  expert 
was  rejected  for  the  reason  that  there  was  nothing  before 
the  court  which  was  the  subject  of  opinion  evidence;  the 
books  of  the  company,  with  one  exception,  were  not 
called  for  or  offered,  and  these  books  might  well  have  ex- 
plained the  entries  and  transactions  to  which  they  re- 
lated without  the  opinion  or  conclusion  of  any  expert." 
In  this  we  see  no  error. 

Plaintiff  also  attacks  parts  of  the  charge  wherein  the 
trial  judge  referred  to  the  books  of  the  garnishee  as  being 
carelessly  kept,  but  stated  that  the  latter  was  not  in 
court  to  answer  for  "improprieties  or  irregularities  in 
its  bookkeeping  except  in  so  far  as  they  might  have  a  bear- 
ing upon  the  question  of  whether  these  bonds,  or  the  pro- 
ceeds of  these  bonds,  or  any  part  thereof,  belonged  to 
Vandegrift  and  reached  the  hands  of  the  traction  com- 
pany, subsequent  to  time  of  service  of  attachment" ;  this, 
in  substance,  is  all  of  importance  that  the  trial  judge 
said  to  the  jury  upon  the  subject  in  hand,  and  it  does 
not  present  reversible  error. 


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202  AMERICAN  S.  CO.,  AppeL,  v.  VANDERGRIPT  C.  CO. 
Opinion  of  the  Court.  [264  Pa. 

Finally,  appellant  complains  that  the  court  erred  in 
refusing  to  affirm  this  point :  "If  the  jury  believe  that 
the  accounts  of  the  Ephrata  &  Lebanon  Traction  Com- 
pany, as  between  itself  and  Joseph  A.  Vandegrif  t,  as  con- 
tained in  the  journal  of  the  said  Ephrata  &  Lebanon 
Traction  Company,  are  not  true  and  correct  in  every  ma- 
terial particular,  and  that  such  material  entries  were 
made  for  the  purpose  of  fabricating  evidence  in  its  be- 
half and  against  the  plaintiffs  interest,  the  jury  is  justi- 
fied in  disregarding  the  defenses  of  the  garnishee  of 
either  overpayment  to  Joseph  A.  Vandegrif t,  or  of  set- 
off against  Joseph  A.  Vandegrift  and  the  plaintiff." 
Since  neither  the  evidence  produced  nor  that  tendered 
would  sustain  the  findings  set  forth  in  this  request,  it  was 
properly  refused. 

None  of  the  authorities  cited  by  appellant  rules  the 
facts  at  bar,  nor  is  any  novel  point  of  law  raised  which 
requires  discussion.  We  have  disposed  of  all  the  im- 
portant questions  in  the  case ;  since  they  are  treated  by 
us  as  though  every  material  fact  offered  in  evidence  had 
been  actually  established  by  competent  proof,  it  is  not 
necessary  to  pass  specifically  upon  the  many  assignments 
which  complain  of  the  refusal  of  testimony;  and,  as  to 
those  which  criticize  the  charge,  keeping  in  mind  what 
has  already  been  said  upon  that  subject,  it  is  only  neces- 
sary to  state  we  see  no  material  error  therein ;  in  con- 
clusion, the  complaint  that  the  court  below  erred  in  re- 
fusing plaintiff  judgment  n.  o.  v.  is  entirely  without 
merit. 

The  judgment  is  affirmed. 


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DUQUESNE  BOND  CO.  v.  AMERICAN  S.  CO.,  Appel.  203 
1919.]  Syllabus. 


Duquesne  Bond  Corporation  v.  American  Surety 
Co.  of  New  York,  Appellant. 

Attachment  execution — Stock  of  corporation — Stipulation  on  ap- 
peal— Interpleader  proceedings — Res  adjudicata — Parties. 

1.  An  attachment  execution  was  issued  against  a  railway  com- 
pany to  attach  shares  of  stock  standing  in  the  name  of  the  defend- 
ant in  the  execution.  After  judgment  against  the  garnishee,  an 
appeal  was  taken,  and,  in  lieu  of  bail  on  appeal,  a  stipulation  was 
entered  into  by  the  plaintiff  and  defendant  in  the  attachment  pro- 
ceedings, and  a  corporation  and  others  claiming  ownership  of  the 
stock,  by  which  it  was  agreed  that  the  shares  should  be  deposited 
with  the  prothonotary  of  the  lower  court,  that  the  garnishee 
might  prosecute  its  appeal,  that  the  appeal  should  not  be  a  super- 
sedeas, that  the  plaintiff  might  proceed  by  interpleader  proceedings, 
by  serving  the  claimants  with  an  appropriate  writ;  that  the  al- 
leged owners  should  have  the  right  to  file  a  claim  for  the  stock 
alleged  to  be  owned  by  them,  and  that  the  question  of  the  owner- 
ship of  the  shares  should  be  determined  in  the  proceedings  in  the 
manner  provided  by  the  Sheriff's  Interpleader  Act  of  1897.  The 
garnishee  did  not  prosecute  its  appeal;  but  the  defendant  in- 
stituted the  interpleader  proceedings,  as  soon  as  an  attempt  was 
made  physically  to  take  the  stock  in  execution.  The  corporation 
claimant  of  the  stock  was  not  a  party  in  the  attachment  proceedings, 
was  not  served  therein,  did  not  intervene,  and  had  no  notice  of 
them,  other  than  the  knowledge  of  certain  of  its  officers  acquired 
when  they  were  not  acting  for  the  claimant.  Held,  (1)  that  the 
claim  of  the  corporation  alleging  ownership  of  the  stock  was  not 
res  adjudicata  by  the  attachment  proceedings;  (2)  that  the  cor- 
poration could  under  the  stipulation  establish  its  ownership  of  the 
stock  in  the  interpleader  proceedings;  (3)  that  the  fact  that  the 
appeal  of  the  garnishee  was  not  pressed,  was  immaterial. 

2.  The  Act  of  June  16, 1836,  Section  34,  P.  L.  761,  767,  does  not 
compel,  but  permits,  a  claimant  of  stock  to  become  a  parly  to  the 
attachment  suit. 

Corporations — Stock — Voting  trust — Assignment  of  stock. 

3.  Where  an  owner  of  stock  sells  it  to  another  for  value,  and  the 
vendee  deposits  it  with  a  trust  company  acting  as  depository  for  a 
voting  trust,  and  receives  the  certificate  of  the  voting  trustees,  the 
vendee  will  be  entitled  to  receive  the  stock  if  for  any  reason  the 
voting  trust  agreement  fails. 


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204  DUQUESNE  BOND  CO.  v.  AMERICAN  S.  CO.,  AppeL 

Syllabus-— Arguments.  [264  Pa. 

4.  Where,  upon  the  termination  of  a  voting  trust,  the  trustees 
execute  assignments  in  blank  in  a  sufficient  number  to  furnish  one 
for  each  stock  certificate,  and  these  are  delivered  with  the  under- 
standing that  they  shall  be  attached  to  the  stock  certificates,  when 
the  latter  are  received  from  the  depository  of  such  stock,  and  they 
are  so  attached,  the  delivery  of  the  assignment  in  blank,  constitutes 
a  valid  transfer  of  title  out  of  the  voting  trustees. 

5.  Any  prior  bona  fide  assignment  of  stock  for  value  will  ef- 
fectually pass  the  transferer's  interest  therein,  so  far  as  to  super- 
sede the  rights  of  an  attachment  or  execution  creditor  to  levy  upon 
it  for  a  debt  due  by  the  transferrer. 

Corporations — Stock — Voting  stock — Ownership— Evidence. 

6.  Where  stock  is  voted  under  a  proxy  from  a  person  whose  name 
stands  on  the  books  of  the  corporation  as  the  owner  of  record,  such 
fact  is  not  conclusive  evidence  that  the  person  in  question  is  the 
owner  thereof,  where  the  ownership  of  the  stock  is  in  dispute.  Such 
a  fact  is  for  the  consideration  of  the  jury  with  the  other  evidence 
in  the  case. 

Practice,  Supreme  Court— Assignments  of  error— Documentary 
evidence. 

7.  Assignments  of  error  to  the  admission  or  rejection  of  docu- 
mentary evidence  will  not  be  considered,  where  the  documents  in 
question  are  not  set  forth  in  the  assignments. 

Argued  Feb.  17, 1919.  Appeal,  No.  275,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  Lebanon  Co.,  Sept. 
T.,  1917,  No.  151,  on  verdict  for  plaintiff  in  case  of  Du- 
quesne  Bond  Corporation  v.  American  Surety  Company 
of  New  York.  Before  Brown,  C.  J.,  Stewart,  Mosch- 
ziskbr,  Walling  and  Kbphart,  JJ.   Affirmed. 

Sheriffs  interpleader  to  determine  ownership  of  stock 
of  a  corporation. 

Verdict  and  judgment  for  plaintiff  for  the  shares  of 
stock  in  question.    Defendant  appealed. 

Error  assigned,  amongst  others,  was  in  not  entering 
judgment  for  defendant  n.  o.  v. 

Warren  G.  Light  and  Wm.  T.  0.  Anderson,,  for  appel- 
lant.— That  the  appellee  could  and  should  have  appealed 


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DUQUESNE  BOND  CO.  v.  AMERICAN  S.  CO.,  AppeL  205 
1919.]  Arguments — Opinion  of  the  Court 

in  its  own  right  from  the  judgment  against  the  railway 
company  instead  of  merely  participating  in  the  latter's 
appeal  is  plain  from  the  decision  in  Knights  of  Joseph 
Building  &  Loan  Association  v.  Guarantee  Trust  and 
Safe  Deposit  Company,  69  Pa.  Superior  Ct.  89. 

The  appellee  from  the  moment  it  executed  the  stipula- 
tion that  plays  so  large  a  part  in  this  case,  put  itself  in 
the  position  of  a  stockholder  in  the  railway  company,  and 
therefore  brought  itself  within  the  purview  of  the  deci- 
sion in  Wilson  v.  Pittsburgh,  etc.,  Coal  Company,  43 
Pa.  424 

The  courts  look  beyond  the  nominal  party,  and  treat  as 
the  real  party  him  whose  interests  are  involved  in  the 
issue,  and  who  conducts  and  controls  the  action  or  de- 
fense: Peterson  v.  Lathrop,  34  Pa.  223;  Raisig  v.  Graf, 
17  Pa.  Superior  Ct.  509 ;  Schwan  v.  Kelly,  173  Pa.  65. 

The  voting  trust  of  the  railway  company  stock  as 
pleaded  and  proved  by  the  appellee  was  illegal,  in  that  it 
was  not  intended  to  promote  the  best  interests  of  all  the 
stockholders  of  that  company,  and  in  that  one  of  the 
trustees,  Taylor,  had  no  beneficial  interest  in  the  owner- 
ship of  the  franchise,  the  subject  of  the  trust :  Lafferty's 
Est.,  154  Pa.  430;  Vanderbilt  v.  Bennett,  6  Pa.  C.  C. 
R.  193. 

Henry  0.  Evans,  of  Evans,  Noble  &  Evcms,  for  appel- 
lee.— Knowledge  of  garnishment  and  opportunity  to  in- 
tervene does  not  compel  intervention  by  claimants: 
Chester  v.  Schaffer,  24  Pa.  Superior  Ct.  162. 

Appellee's  failure  to  appeal  from  the  judgment  against 
garnishee  does  not  bar  it  from  asserting  its  ownership. 

Opinion  by  Mb.  Justice  Moschziskbb,  March  24, 
1919: 

In  1917,  the  American  Surety  Company  of  New  York, 
defendant  and  appellant  in  the  present  suit,  obtained  a 
judgment  against  the  Ephrata  &  Lebanon  Street  Bail- 
way  Company,  as  garnishee ;  this  was  entered  in  a  pro- 


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206  DUQUBSNE  BOND  CO.  v.  AMERICAN  S.  CO.,  Appel. 

Opinion  of  the  Court.  [264  Pa. 

ceeding  whose  object  was  to  attach  certain  shares  of  the 
railway  company's  stock,  standing  on  its  books  in  the 
name  of  Joseph  A.  Vandegrift,  a  debtor  of  the  surety 
company  and  defendant  in  that  action;  following  the 
judgment,  bail  for  appeal  was  fixed  at  $ 50,000;  and,  the 
garnishee  not  being  able  to  secure  a  bond  in  such  an 
amount,  it,  together  with  the  plaintiff  and  defendant  in 
the  attachment  proceeding,  the  Duquesne  Bond  Corpo- 
ration (plaintiff  and  appellee  in  the  case  now  before  us) 
and  certain  other  persons  claiming  to  own  the  attached 
stock,  entered  into  a  written  stipulation,  reciting,  inter 
alia,  that  the  garnishee,  who  was  "not  the  owner  of  said 
stock"  and  had  "no  interest  therein,"  had  appealed  to 
the  Supreme  Court,  that  "the  Duquesne  Bond  Corpora- 
tion," with  others,  naming  them,  asserted  ownership  of 
such  stock,  and  that  it  was  "the  desire  of  both  the  plain- 
tiff and  garnishee,  and  the  several  owners  hereinbefore 
set  out,  to  expedite  the  final  determination  of  this  case 
and  of  all  questions  relating  to  the  title  of  the  shares  of 
stock  which  are  the  subject  of  the  judgment  against  the 
garnishee ;  therefore,  it  is  agreed  that,  in  consideration 
of  the  alleged  owners  depositing  the  stock  certificates  in 
their  possession  with  the  prothonotary  of  the  court  be- 
low," the  parties  "shall  proceed  as  follows  with  respect  to 
the  said  judgment  and  the  appeal  of  the  said  garnishee 
therefrom  and  execution  thereon."  After  this  the  agree- 
ment states  that  the  garnishee  "May  prosecute  its  ap- 
peal," without  entry  of  a  $ 50,000  bond,  "if  it  so  desires," 
but  that  the  appeal  shall  not  be  a  supersedeas,  and  the 
plaintiff  may  proceed  to  execution  against  the  stock  rep- 
resented by  the  certificates  so  deposited,  notwithstanding 
the  pendency  of  the  appeal,  by  serving  the  alleged  own- 
ers of  such  stock  with  an  appropriate  writ  (none  of  them 
having  theretofore  been  served  with  any  writ  or  formal 
notice  in  the  attachment  proceedings) ;  finally,  that, 
when  so  served,  the  "alleged  owners  shall  have  the  right 
thereupon  to  file  a  claim"  for  the  shares  of  stock  "alleged 
to  be  owned  by  them"  respectively,  and  "the  question  as 


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DUQUESNE  BOND  CO.  v.  AMERICAN  S.  CO.,  Appel.  207 
1919.]  Opinion  of  the  Court. 

to  who  is  the  owner  of  said  shares  of  stock  shall  be  legally 
determined  in  said  proceeding  in  the  manner  provided  by 
law,  to  wit,  under  the  Sheriffs  Interpleader  Act  of 
1897";  it  being  particularly  stipulated,  "that  nothing 
contained  in  this  agreement  shall  deprive,  debar,  limit  or 
restrict  the  [American  Surety  Company]  from  its  right 
of  [invoking]  the  doctrine  of  res  ad  judicata  against  any 
of  the  parties  or  issues  bound  or  to  be  bound  by  the  ver- 
dict and  judgment  [in  the  attachment  proceeding],  sub- 
ject, however,  to  any  objection  thereto  on  behalf  of  said 
garnishee,  defendant,  or  alleged  owners  of  said  stock." 

The  present  plaintiff,  being  a  claimant  for  2,197  shares 
of  the  attached  stock,  made  no  effort  whatever  either  to 
intervene  or  appeal  from  the  judgment  in  the  attachment 
suit,  but,  in  accordance  with  the  terms  of  the  above  re- 
cited stipulation,  entered  its  claim  under  the  Interplead- 
er Act,  and,  when  this  latter  proceeding  (being  the  pres- 
ent suit)  came  to  trial,  secured  a  verdict;  judgment  fol- 
lowed, and  the  American  Surety  Company,  defendant, 
has  appealed. 

The  Duquesne  Bond  Corporation,  plaintiff,  avers,  in 
its  interpleader  declaration,  that  it  owns  2,197  shares  of 
the  capital  stock  of  the  Ephrata  &  Lebanon  Street  Bail- 
way  Company,  attached  by  defendant  as  the  property  of 
Vandegrif  t ;  and  that  it  derived  title  thereto,  prior  to  the 
date  of  the  attachment  (March  4, 1915),  for  a  valuable 
consideration,  without  notice  of  any  claim  on  part 
of  defendant,  in  this  manner:  On  or  about  October  4, 
1913,  plaintiff  agreed  with  Vandegrift  for  the  purchase 
from  him  of  certain  bonds  of  the  railway  company  and, 
as  a  consideration  and  inducement  for  plaintiff  to  enter 
into  this  contract,  Vandegrift  agreed  to  give  with  the 
bonds  |80,000,  par  value,  of  the  railway  stock,  the  stock 
to  be  delivered  to  plaintiff  proportionately  as  it  should 
take  up  and  pay  for  the  bonds,  and  to  be  evidenced  by 
voting  trust  certificates,  the  stock  then  being  in  such  a 
trust ;  that  plaintiff  paid  for  all  the  bonds,  by  August  24, 
1914 ;  that,  prior  to  this  time,  1,517  shares  of  stock  had 


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208  DUQUESNE  BOND  CO.  v.  AMERICAN  S.  CO.,  AppeL 

Opinion  of  the  Court.  [264  Pa. 

been  assigned  by  Vandegrif  t  to  the  voting  trustees,  who 
issued  trust  certificates  therefor  to  plaintiff;  that  this 
voting  trust  was  terminated  on  or  about  February  15, 
1915,  whereupon  the  trustees  executed  and  delivered  to 
plaintiff  several  assignments  in  blank,  transferring  the 
1,517  shares  of  stock  which  belonged  to  plaintiff,  the 
actual  stock  certificates  being  handed  over  by  the  de- 
positary on  March  18,  1915,  at  which  time  plaintiff  at- 
tached thereto  the  blank  assignments  previously  executed 
and  delivered  to  it  by  the  voting  trustees;  that,  in  ad- 
dition to  the  aforementioned  1,517  shares,  on  August  21, 
1914,  Vandegrift  also  delivered  to  plaintiff  two  certifi- 
cates for  40  shares  each  of  the  railway  company's  stock, 
which,  on  August  8, 1914,  had  been  duly  assigned  to  plain- 
tiff ;  that,  July  31, 1914,  plaintiff  made  an  agreement  with 
Vandegrift  for  the  purchase  by  it  of  certain  other  bonds 
of  the  railway  company,  and,  as  a  consideration  and  in- 
ducement for  plaintiff  to  enter  into  this  contract,  Vande- 
grift agreed  to  deliver  to  it  600  shares,  par  value,  of  the 
stock  of  the  railway  company,  a  certificate  for  which 
shares  was,  on  August  21,  1914,  duly  assigned  by  Van- 
degrift to  plaintiff;  finally,  that,  prior  to  the  date  of 
the  attachment,  plaintiff  corporation  was  known  as  "H. 
P.  Taylor  &  Co.,"  its  title,  in  1916,  being  changed  to  the 
"Duquesne  Bond  Corporation." 

Plaintiff  made  out  its  case,  substantially  as  averred, 
by  oral  testimony  and  documentary  evidence.  Several 
of  the  assignments  of  error  complain  of  the  admission  or 
rejection  of  proofs  of  the  latter  kind,  but  in  each  instance 
they  are  defective  in  f ailing^to  set  forth  the  document  in 
question,  and  for  that  reason  alone  they  might  be  dis- 
missed (Kaufman  v.  Pittsburgh,  etc.,  R.  R.,  210  Pa-  440, 
443 ;  Creachen  v.  Bromley  Bros.  Carpet  Co.,  214  Pa.  15, 
18;  Hallock  v.  Lebanon,  215  Pa.  1,  3;  American  Car, 
etc.,  Co.  v.  Altoona  &  Beech  Creek  R.  R.,  218  Pa.  519, 
520;  Sunbury  Boro.  v.  Sunbury,  etc.,  Ry.,  241  Pa.  357, 
360 ;  see  also  Jenkinson  Co.  v.  Eggers,  28  Pa.  Superior 
Ct.  151, 153,  and  cases  there  cited) ;  none  of  them,  how- 


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DUQUESNE  BOND  CO.  v.  AMERICAN  S.  CO.,  Appel.  209 
1919.]  Opinion  of  the  Court, 

ever,  indicate  reversible  error,  as  we  shall  show  here- 
after. 

The  other  assignments  complain  of  the  refusal  to  either 
direct  or  enter  judgment  for  plaintiff,  and  of  excerpts 
from  the  charge.  As  to  the  first  of  these,  it  is  sufficient  . 
to  say  that,  on  the  evidence,  the  issues  involved  were  for 
the  jury;  and  as  to  the  other  group,  when  the  excerpts 
criticized  are  taken  with  their  contexts,  no  harmful  error 
appears.  While  it  is  not  necessary  to  pass  specifically 
upon  any  of  the  assignments,  we  shall  discuss  appellant's 
principal  contentions. 

First,  the  doctrine  of  res  adjudicata  is  urged  as  a  bar 
against  plaintiff's  claim  of  title  to  the  stock  in  contro- 
versy, and  this  because  of  the  former  judgment  against 
the  garnishee.  Plaintiff  was  in  no  sense  a  party  to  the 
action  in  which  that  judgment  was  entered;  it  did  not 
intervene  therein,  was  not  served  with  a  writ  or  notice 
which  would  make  it  a  party  to  such  proceeding,  no  in- 
junction relating  to  a  transfer  of  the  attached  stock  was 
there  issued  against  plaintiff,  nor,  prior  to  the  gar- 
nishee's appeal,  was  there  any  attempt  to  levy  upon  or 
take  the  stock  out  of  plaintiff's  possession  or  from  the 
hands  of  those  who  then  temporarily  held  the  latter's 
certificate  in  trust. 

True,  certain  of  plaintiff's  officers  and  employees,  and 
one  of  its  attorneys,  had  knowledge  of  the  attachment, 
but  in  no  instance  did  this  knowledge  come  to  them  as 
representatives  of  plaintiff  company,  nor  was  it  gained 
in  transactions  where  they  were  acting  in  any  manner  for 
that  corporation ;  hence,  plaintiff  was  neither  obliged  to 
intervene  in  the  attachment  proceeding,  nor  to  appeal 
from  the  judgment  there  entered:  Gilkeson  v.  Thomp- 
son, 210  Pa.  355, 359 ;  also  see  Wilson  v.  Second  National 
Bank,  4  Sadler  68,  and  Holmes  v.  Paul,  3  Grant  299.  It 
might  have  intervened  as  a  claimant,  but  not  having 
been  summoned  as  a  garnishee,  it  was  under  no  legal 
duty  in  the  premises.  Its  present  claim  was  not  affected, 
so  it  was  not  aggrieved ;  and,  even  if  entitled  t<j  put  itself 
Vol.  colxiv— 14 

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210  DUQUBSNB  BOND  CO.  v.  AMERICAN  S.  CO.,  AppeL 
Opinion  of  the  Court  [264  Pa. 

in  a  position  to  appeal  from  the  judgment  against  the 
garnishee,  it  was  not  obliged  to  do  so. 

Section  34  of  the  Act  of  June  16, 1836,  P.  L.  761,  767, 
which  provides  for  such  a  situation  as  here  presented, 
specifies  that  "if  any  [other]  person  shall  claim  to  be 
the  owner  of  such  stock,  he  may,  upon  filing  an  affidavit 
that  the  stock  is  really  his  property,  and  entering  into 
recognizance  with  two  certain  sureties,"  be  admitted  "to 
become  a  party  upon  the  record  and  take  defense  in  like 
manner  as  if  he  were  made  garnishee  in  the  writ."  It 
will  be  noticed  that  the  act  does  not  compel,  but  permits, 
the  claimant  to  become  a  party  to  the  attachment  suit; 
nor  is  there  anything  in  the  stipulation  in  this  case  which 
would  force  plaintiff  either  to  become  a  party  to  or  ap- 
peal from  the  judgment  entered  in  such  proceeding.  On 
the  contrary,  the  stipulation  plainly  contemplates  that 
all  claims  of  title  to  the  stock  in  controversy  be  adjudi- 
cated in  the  anticipated  interpleader  proceeding,  as  was 
subsequently  done. 

The  fact  that  the  appeal  taken  by  garnishee  in  the  at- 
tachment suit  was  not  pressed,  can  have  no  effect  upon 
the  present  plaintiff.  As  already  said,  the  stipulation 
between  the  parties  states  that  the  garnishee  "may 
prosecute  its  appeal,"  not  that  it  must  do  so.  The  appeal 
not  having  been  prosecuted,  the  judgment  against  the  gar- 
nishee stands  as  though  affirmed ;  but,  since  the  present 
plaintiff  was  in  no  sense  a  party  to  the  action  in  which 
that  judgment  was  entered,  its  claim  of  title  was  neither 
adjudicated  nor  affected  thereby.  It  may  be  further 
noted  that  the  stipulation  particularly  provides  that 
"Should  the  Supreme  Court  finally  decide  said  appeal 

in  favor  of  the  garnishee,  then  the  prothonotary 

is  hereby  authorized  and  directed  to  return  forthwith 
said  2,327  shares  of  stock  to  the  Duquesne  Bond  Cor- 
poration [and  other  claimants  named],  notwithstanding 
the  pendency  of  the  execution  and  the  sheriff's  inter- 
pleader," but  the  stipulation  is  significantly  silent  as  to 
any  duty  to  hand  over  such  stock,  or  give  other  satisfac- 


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DTJQUBSNE  BOND  CO.  v.  AMERICAN  S.  CO.,  Appel.  211 
1919.]  Opinion  of  the  Court. 

tion  to  the  present  defendant  (plaintiff  in  that  case), 
should  the  appeal  be  decided  in  its  favor. 

The  court  below  reports  that,  "At  the  trial  of  the  issue 
under  the  attachment  a  verdict  was  rendered  in  favor  of 
the  American  Surety  Company  finding  that  %327  shares 
of  the  capital  stock  of  the  garnishee  on  March  4,  1915, 
at  the  time  of  the  service  of  the  writ  of  attachment  upon 
the  said  Ephrata  &  Lebanon  Street  Railway  Company, 
stood  in  the  name  of  Joseph  A.  Vandegrif  t,  defendant,  on 
the  stock  books  of  the  said  garnishee.' "  So  far  as  the 
case  now  before  us  is  concerned,  the  sole  effect  of  the  at- 
tachment judgment  against  garnishee  is  to  adjudicate, 
as  between  that  corporation  and  the  person  in  whose 
name  the  stock  stood,  the  fact  that  the  latter  was  the 
owner  of  such  stock,  free  of  any  lien  or  obligation  to  the 
garnishee  corporation ;  and  this  only  for  the  purpose  of 
clearing  the  way  for  a  subsequent  fl.  fa.  to  take  the  stock 
in  execution. 

When  carefully  read  and  considered  in  connection 
with  their  facts,  it  will  be  seen  that  Weaver  v.  Hunting- 
don, etc.,  R.  R.  Co.,  50  Pa.  314,  and  Glazier  v.  Jacobs,  250 
Pa.  357,  cited  by  appellants,  really  decided  nothing  rele- 
vant to  the  present  case  other  than  lending  support  to 
the  determination  just  stated  concerning  the  effect  of 
the  judgment  against  the  garnishee;  we  conclude  that 
such  judgment,  under  the  facts  at  bar,  does  not,  on  the 
doctrine  of  res  adjudicata  or  otherwise,  bar  plaintiff's 
claim  of  title. 

Section  13  of  the  Act  of  May  5,  1911,  P.  L.  126,  128, 
provides  that  "No  attachment  or  levy  upon  shares  of 
stock  for  which  a  certificate  is  outstanding  shall  be  valid 
until  such  certificate  be  actually  seized  by  the  officer 
making  the  attachment  or  levy,  or  be  surrendered  to  the 
corporation  which  issued  it,  or  its  transfer  by  the  holder 
be  enjoined."  Here,  as  soon  as  an  attempt  was  made  to 
enforce  the  attachment,  by  way  of  execution  against  the 
stock,  plaintiff  immediately  acted  to  protect  its  alleged 
ownership,  and  it  did  this  in  the  manner  agreed  upon  in 


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212  DUQUESNE  BOND  CO.  v.  AMERICAN  S.  CO.,  Appel. 

Opinion  of  the  Court.  [264  Pa. 

the  before  mentioned  stipulation.  Had  plaintiff  done 
nothing,  and  allowed  the  stock  claimed  by  it  to  be  physi- 
cally taken  in  execution  and  sold  as  the  property  of  the 
defendant,  Vandegrift,  in  whose  name  such  stock  stood 
when  the  attachment  was  served  on  garnishee,  a  different 
question  might  be  presented;  which,  as  the  case  stands, 
need  not  be  considered. 

We  have  already  decided  that  plaintiff  proved  its  own- 
ership of  the  stock  in  controversy;  but,  in  that  connec- 
tion, several  contentions  are  made  by  appellant,  which, 
perhaps,  may  be  discussed  profitably. 

Appellant  attacks  the  validity  of  the  voting  trust  un- 
der which,  just  prior  to  the  attachment,  the  stock  was 
held  for  plaintiff;  but  this  attack  is  sufficiently  disposed 
of  by  the  following  short  excerpt  from  the  paper-book  of 
counsel  for  appellee :  **Even  if  the  voting  trust  was  il- 
legal and  nudum  pactum  [which  counsel  well  argue  it 
was  not],  the  ownership  of  the  stock  must  rest  some- 
where. Vandegrift  had  sold  his  title,  for  value,  to  ap- 
pellee, which  had  deposited  the  stock  with  the  trust 
company  [that  acted  for  the  voting  trust],  and  appellee 
held  the  certificates  of  the  trust  [to  the  effect]  that  the 
trustees  held  the  stock  for  it ;  therefore,  if  for  any  reason 
the  trust  agreement  failed,  the  stock  reverted  to  ap- 
pellee." 

Again,  appellant  contends  appellee  did  not  obtain  a 
valid  transfer  of  title  out  of  the  voting  trustees  because 
the  assignments  in  blank,  executed  by  such  trustees  and 
delivered  to  appellee,  were  not,  when  executed,  at  once 
attached  to  the  several  stock  certificates.  It  appears 
that,  simultaneously  with  the  termination  of  the  voting 
trust,  on  February  15,  1915,  the  trustees  executed  these 
assignments  in  a  sufficient  number  to  furnish  one  for 
each  stock  certificate,  forthwith  delivering  them  to  ap- 
pellee, with  the  intention  and  upon  the  understanding 
that  it  should  attach  the  several  assignments  to  the  stock 
certificates,  when  the  latter  were  received  from  the  trust 
company  which  acted  as  the  depositary  of  such  stock. 


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DUQUESNE  BOND  CO.  v.  AMERICAN  S.  CO.,  Appel.  213 
1919.]  Opinion  of  the  Court. 

Subsequently  appellee  exchanged  the  voting  trust  certifi- 
cates for  the  stock  due  it,  the  stock  certificates  being  re- 
ceived on  or  about  March  8,  1915,  when  the  transfers, 
previously  signed  and  delivered  by  the  trustees,  were  im- 
mediately attached  thereto.  Section  9  of  the  Act  of  May 
5, 1911,  supra,  provides  that  the  delivery  of  a  certificate 
without  the  endorsement  requisite  to  a  valid  transfer 
thereof,  but  with  the  intent  to  make  such  a  transfer,  im- 
poses an  obligation,  in  the  absence  of  an  agreement  to  the 
contrary,  upon  the  person  so  delivering,  to  complete  the 
transfer,  and  that,  when  completed,  it  shall  take  effect 
as  of  the  time  when  the  endorsement  was  actually  made ; 
and  we  find  nothing  in  the  act  which,  as  between  the  par- 
ties to  the  transfer  or  their  privies,  requires  a  separate 
instrument  of  assignment  to  be  delivered  simultaneously 
with  the  certificate  sought  to  be  transferred.  The  general 
rule  is  that  "Any  [prior]  bona  fide  assignment  of  stock 
for  value  will  effectually  pass  the  transferrer's  interest 
therein,  so  far  as  to  supersede  the  rights  of  an  attachment 
or  execution  creditor  to  levy  upon  it  for  a  debt  due  by 
the  transferrer" :  2  Daniel's  Negotiable  Instruments,  sec. 
1708e;  also  see  U.  S.  v.  Vaughan,  3  Binney  *394;  Com. 
v.  Watmough,  6  Wh.  #117,  *137  et  seq.  The  contention 
under  consideration  is  not  sustained. 

Finally,  appellant  lays  much  emphasis  upon  the  fact 
that,  after  the  date  of  the  attachment,  the  stock  in  con- 
troversy was  voted  at  an  annual  meeting  of  the  corpora- 
tion, under  a  proxy  from  defendant,  Vandegrif t,  by  an  at- 
torney for  garnishee,  who  happened  also  to  be  counsel  for 
plaintiff;  and  it  urges  this  fact  as  conclusive  evidence 
that  Vandegrift,  and  not  plaintiff,  was,  on  the  date  of  the 
attachment,  the  real  owner  of  such  stock.  At  the  time  in 
question,  the  stock  was  registered  on  the  books  of  gar- 
nishee company  in  the  name  of  Vandegrift  and,  under 
Section  3  of  the  Act  of  May  5, 1911,  supra,  that  corpora- 
tion could  recognize  "the  exclusive  right  of  a  person 

registered  on  its  books  as  the  owner  of  shares to 

vote  as  such" ;  this  being  the  law,  and,  when  the  Vande 


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214  DUQUESNE  BOND  CO.  v.  AMERICAN  S.  CO.,  AppeL 

Opinion  of  the  Court.  [264  Pa. 

grift  proxy  was  acted  upon,  there  being  a  contest  over 
the  ownership  of  the  stock,  the  effect  of  its  use  cannot  be 
given  controlling  significance.  The  incident  was  called 
to  the  attention  of  the  jury,  however,  and,  in  connection 
therewith,  they  were  told  to  consider  any  act  of  plaintiff 
"which  may  be  inconsistent  with  its  claim  of  ownership." 
As  previously  said  by  us  in  this  opinion,  the  facts  in  the 
case  were  for  the  jury ;  and  the  ones  now  under  discus- 
sion, as  well  as  all  others,  were  submitted  by  the  trial 
judge  without  substantial  error. 

Exler  v.  Wickes  Bros.,  263  Pa.  150,  largely  relied 
upon  by  appellant,  in  no  particular  rules  the  case  at  bar. 
There  the  party,  who  appellant  claims  occupied  a  legal 
position  analogous  to  that  of  the  present  appellee  (al- 
though the  proceedings  were  different  in  character),  had 
an  opportunity  in  a  prior  suit  to  protect  his  property  in- 
terest, but,  instead  of  doing  so,  "in  effect  authorized  and 
directed"  one  of  the  litigants  in  such  prior  suit  to  "pro- 
tect his  rights" ;  we  ruled  that,  under  such  circumstan- 
ces, he  was  bound  by  the  former  adjudication  as  to  the 
ownership  of  the  property  in  controversy,  and  this  upon 
the  ground  that  "one  who  has  notice  of  a  suit  brought  to 
determine  ownership  of  property  upon  which  he  claims 
a  lien,  and  authorizes  a  party  to  the  suit,  who  is  in  pos- 
session of  the  property,  to  take  such  steps  as  will  protect 
the  former's  rights,  is  concluded  by  the  result  of  the  liti- 
gation, although  he  does  not  intervene  as  a  party."  The 
marks  of  distinction  between  Exler  v.  Wickes  Bros,  and 
the  present  case  are  too  plain  to  require  discussion ;  the 
other  cases  cited  by  appellant  are  likewise  readily  dis- 
tinguishable on  their  facts,  and  none  of  them  governs 
here. 

The  several  assignments  of  error  hereinbefore  referred 
to,  as  not  in  proper  form,  are  dismissed,  and  the  others 
are  overruled ;  the  judgment  is  affirmed. 


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CORPORATION  F.  &  P.  CO.  v.  STOFFREGEN,  Appel.  215 
1919.]  Syllabus — Assignment  of  Errors. 


Corporation  Funding  &  Finance  Co,,  Inc.,  v. 
Stoffregen,  Appellant. 

Corporations — Stock  subscription — Fraud — Waiver, 

1.  A  subscriber  to  the  stock  of  an  insolvent  corporation  cannot 
set  up  as  a  defense  to  an  action  to  recover  the  amount  of  the  sub- 
scription,  fraud  and  misrepresentation,  in  the  procuring  of  the  sub- 
scription, where  it  appears  that  after  the  subscriber  had  discovered 
the  fraud  he  retained  the  certificates  of  stock,  and  received  and 
retained  several  dividends  thereon  amounting  to  hundreds  of  dol- 
lars. 

Courts — Judges — Orphans'  court  judge  presiding  in  common 
pleas— De  facto  judge— Act  of  July  19,  1918,  P.  L.  8H. 

2.  Where  under  the  Act  of  July  19, 1918,  P.  L.  844,  an  orphans' 
court  judge  specially  presides  in  the  court  of  common  pleas,  his 
acts  will  be  valid.  Even  if  the  act  were  unconstitutional,  he  would 
be  a  judge  de  facto,  and  his  acts  would  be  valid  irrespective  of  the 
constitutionality  of  the  act. 

Appeal — Supreme  Court — Question  not  raised  below. 
8.  If  objection  to  the  right  of  the  judge  to  preside,  is  not  made  in 
the  common  pleas,  it  cannot  be  made  in  the  appellate  court. 

Argued  Feb.  17,  1919.  Appeals,  Nos.  18  and  19,  Jan. 
T.,  1919,  by  defendants,  from  judgment  of  C.  P.  Schuyl- 
kill Co.,  Jan.  T.,  1911,  Nos.  142  and  143,  on  verdicts  for 
plaintiff  in  cases  of  Corporation  Funding  &  Finance  Co., 
Inc.,  v.  Laura  C.  Stoffregen,  Executrix  of  Louis  Stoffre- 
gen, deceased,  and  Laura  C.  Stoffregen.  Before  Brown, 
C.  J.,  Stewart,  Moschziskbr,  Walling  and  Khphart, 
JJ.   Affirmed. 

Assumpsit  to  recover  stock  subscriptions.  Before 
Wilhblm,  P.  J.,  specially  presiding. 

Verdict  and  judgment  for  plaintiff  for  $4,033.05 
against  Laura  C.  Stoffregen,  Executrix  of  Louis  Stoff- 
regen and  against  Laura  C.  Stoffregen  for  |4,870.  De- 
fendants appealed. 

Errors  assigned  were  in  giving  binding  instructions  for 
plaintiff. 


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216    CORPORATION  F.  &  P.  CO.  v.  STOPPREGEN,  Appel. 

Arguments.  [264  Fa. 

Edmund  D.  Smith  and  James  B.  Reilly,  with  them 
John  F.  Whalen,  for  appellants. — The  act  of  assembly, 
under  which  the  judge  exercised  judicial  function  in  the 
case,  is  unconstitutional,  as  violating  Section  15  of 
Article  V,  of  the  Constitution:  Livingston's  App.,  88 
Pa.  209. 

Assuming  for  the  sake  of  argument  that  the  act  in 
question  is  constitutional,  it  does  not  attempt  to  confer 
general  power  of  a  common  pleas  judge  on  the  orphans1 
court  judge  invited  by  the  president  judge  of  the  com 
mon  pleas  in  the  latter's  court,  but  over  only  such  mat 
ters  or  issues  as  may  be  certified  by  the  judge  of  the  com 
mon  pleas  to  the  invited  judge.    That  is,  an  orphans3 
court  judge  cannot  take  cognizance  of  the  general  rou 
tine  business  of  the  common  pleas,  but  can  hear  and  de- 
termine only  those  "certified  according  to  the  provisions 
of  the  second  section  of  this  act":  Livingston's  App., 
88  Pa.  209. 

Assuming  again  that  the  Act  of  1913  is  constitutional 
and  that  the  actions  were  properly  certified  to  the  judge 
specially  presiding,  he  was  without  authority  to  enter 
the  final  judgment:  Lewis  v.  Penna.  R.  R.,  220  Pa.  317. 

The  case  should  have  been  submitted  to  the  jury: 
Pittsburgh  v.  Ihrig,  256  Pa.  410 ;  Kohler  v.  Pennsylvania 
R.  R.  Co.,  135  Pa.  346;  Platz  v.  McKean  Twp.,  178  Pa. 
601;  Todd  v.  Phila.  &  Reading  Ry.  Co.,  201  Pa.  558; 
Jones  v.  Lehigh  &  New  England  R.  R.  Co.,  202  Pa.  81; 
Ely  v.  Pitts.,  Cin.,  Ch.  &  St.  L.  Ry.,  158  Pa.  233 ;  Zillic  v. 
Minnich,  67  Pa.  Superior  Ct.  122;  Reel  v.  Elder,  62  Pa. 
308 ;  Barnett  v.  Becker,  25  Pa.  Superior  Ct.  22 ;  Edwards 
v.  Woodruff,  25  Pa.  Superior  Ct.  575;  Newman  v.  Bull- 
skin  Twp.,  28  Pa.  Superior  Ct.  170;  Dinan  v.  Supreme 
Council,  etc.,  Assn.,  210  Pa.  456;  Holland  v.  Kindregan, 
155  Pa.  156 ;  Dalmas  v.  Kemble,  215  Pa.  410 ;  Perkiomen 
R.  R.  Co.  v.  Kremer,  218  Pa.  641;  Fry  v.  Nat.  Glass  Co., 
219  Pa.  514;  Newman  v.  Romanelli,  244  Pa.  147;  Linde- 
mann  v.  Pittsburgh  Rys.  Co.,  251  Pa.  489;  Nydes  v. 
Royal  Neighbors  of  America,  256  Pa.  381. 


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CORPORATION  P.  &  P.  CO.  v.  STOPPRBGBN,  AppeL  217 
1919.]  Arguments — Opinion  of  the  Court. 

Joseph  R.  Dickinson,  with  him  A.  D.  Knittle,  for  ap- 
pellee.— The  Act  of  1905  is  constitutional:  Morgan  v. 
Reel,  213  Pa.  81. 

The  defendants  offered  no  sufficient  evidence  to  defeat 
plaintiff's  right  of  recovery  and  there  was  no  error  in 
directing  verdicts  for  plaintiff  on  the  written  and  docu- 
mentary evidence:  Howard  v.  Turner,  155  Pa.  349; 
Lare  v.  Westmoreland  Specialty  Co.,  155  Pa.  33;  Hil- 
liard  v.  Allegheny  Geometrical  Wood  Carving  Co.,  172 
Pa.  1 ;  Fowler  v.  Meadow  Brook  Water  Co.,  208  Pa.  473 ; 
Howard  v.  Stillwagan,  232  Pa.  625;  Maries  Carved 
Moulding  Co.  y.  Stulb,  215  Pa.  91. 

Opinion  by  Mb.  Justice  Walling,  March  24, 1919 : 
These  two  actions  on  promissory  notes  given  for  cor- 
porate stock  grow  out  of  the  same  transaction  and  will 
be  considered  together.  At  the  time  in  question  plaintiff 
was  a  Delaware  corporation,  duly  registered  in  Pennsyl- 
vania with  offices  at  Beading,  and  its  principal  business 
was  financing  and  promoting  the  Beading  Mutual  Life 
Insurance  Company,  although  it  sold  stock  of  another 
corporation  known  as  the  Beading  Life  Insurance  Com- 
pany. In  the  summer  of  1910,  at  the  solicitation  of  plain- 
tiffs agents,  the  defendant,  Laura  C.  Stoffregen,  and 
Louis  Stoffregen,  her  father,  made  purchases  of  plain- 
tiff's own  stock  and  also  stock  of  the  last-named  insur- 
ance company,  for  which  they  severally  gave  the  notes 
in  question.  The  companies  whose  stocks  were  so  pur- 
chased became  insolvent  and  were  placed  in  the  hands  of 
receivers ;  meantime  these  suits  were  brought,  and  upon 
the  death  of  Louis  Stoffregen  his  executrix,  Laura  C. 
Stoffregen,  was  substituted  upon  the  record,  and  will  be 
referred  to  as  defendant  in  both  cases.  It  was  contended 
for  the  defense  that  the  notes  were  executed  upon  the 
faith  of  a  contemporaneous  parol  agreement  to  the  effect 
that  they  were  taken  as  a  matter  of  form  and  payment 
thereof  would  never  be  required,  as  the  stock  would  be 
paid  for  out  of  its  own  dividends  in  less  than  four  years. 


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218  CORPORATION  P.  &  F.  CO.  v.  STOPPREGBN,  AppeL 
Opinion  of  the  Court  [264  Pa. 

It  was  also  contended  that  plaintiffs  agents  made  such 
false  and  fraudulent  statements  with  reference  to  the 
assets,  financial  ability  and  property  of  the  corporations 
in  question  as  to  vitiate  the  sale  of  the  stock,  and  that 
defendants  sought  to  return  the  same  and  rescind  the 
contracts.  The  trial  court  directed  verdicts  for  plain- 
tiff for  the  full  amount  of  the  notes ;  and  from  judgments 
entered  thereon  defendant  brought  these  appeals.  We 
find  no  error  in  the  record. 

The  alleged  parol  agreement  depends  upon  the  some- 
what indefinite  testimony  of  the  defendant  and  is  not 
sufficient  to  prevent  recovery  upon  the  notes :  Ziegler  v. 
McFarland,  147  Pa.  607;  Puller  v.  Law,  207  Pa.  lOi; 
Maries  Moulding  Co.  v.  Stulb,  215  Pa.  91;  Streator  v. 
Paxton,  201  Pa.  135;  Phila.  &  Del.  County  R.  R.  v.  Con- 
way, 177  Pa.  364. 

Soon  after  the  purchase  of  the  stock  defendant's  sus- 
picions became  aroused  and  she  went  to  Reading,  her 
home  being  in  Schuylkill  County,  and  made  an  investiga- 
tion which  disclosed  the  facts  upon  which  she  bases  her 
allegations  of  fraud.  This  was  in  the  fall  of  1910,  and,  at 
that  time  or  soon  after  she  discussed  with  plaintiff's  of- 
ficers, both  personally  and  through  her  counsel,  the  mat- 
ter of  rescinding  the  contracts,  but  no  agreement  was 
reached.  It  does  not  appear  that  she  made  a  specific 
tender  of  the  stock  in  question  and  demand  of  the  notes 
given  therefor.  Her  father  had  previously  purchased 
stock  from  plaintiff  for  which  he  had  paid  over  $5,000, 
and  that  transaction  was  coupled  with  the  proposed  ad- 
justment. After  defendant  had  full  knowledge  of  the  al- 
leged fraud  and  after  the  attempted  settlement  and  the 
bringing  of  these  suits,  defendant  and  her  father  retained 
the  stock  in  question  and  received  and  retained  several 
dividends  thereon  amounting  to  hundreds  of  dollars. 
Conceding,  but  not  deciding,  that  the  evidence  of  fraud 
was  sufficient  to  take  the  cases  to  the  jury,  we  are  clearly 
of  the  opinion  that  the  retention  of  the  stock  and  the  ac- 
ceptance of  dividends  thereon  with  knowledge  of  all  the 


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CORPORATION  F.  &  F.  CO.  v.  STOFFREGBN,  AppeL  219 
1919.]  Opinion  of  the  Court 

facts  constitute  a  waiver  of  the  fraud  and  a  ratification 
of  the  contracts.  The  rule  is  well  settled  that  to  rescind 
a  contract  for  fraud  a  party  must  do  so  promptly  on  its 
discovery,  otherwise  the  fraud  will  be  waived  and  the 
contract  valid.  See  Walter  Wood,  etc.,  v.  George  Wood, 
263  Pa.  521  ( decided  at  this  term ) ,  and  cases  there  cited ; 
also  Gibson  v.  Western  N.  Y.  &  Penna.  R.  R.  Co.,  164  Pa. 
142 ;  Learning  v.  Wise,  73  Pa.  173 ;  Negley  v.  Lindsay,  67 
Pa.  217.  It  is  the  retention  of  the  stock  and  the  receipt 
of  dividends  thereon  that  constitute  a  waiver  of  the 
fraud,  without  reference  to  the  question  as  to  whether  the 
dividends  were  properly  declared.  See  Hilliard  et  al.  v. 
Allegheny,  etc.,  Wood  Carving  Co.,  173  Pa.  1. 

We  do  not  deem  it  necessary  to  discuss  the  question  as 
to  the  validity  of  the  purchase  of  the  stock  because  of  the 
rights  of  other  stockholders  or  creditors  of  the  corpora- 
tions. 

These  suits  were  brought  in  the  Court  of  Common 
Pleas  of  Schuylkill  County  and  tried  before  the  president 
judge  of  the  orphans'  court  of  that  county,  specially  pre- 
siding. This  was  authorized  by  the  Act  of  July  19, 1913, 
P.  L.  844.  The  court  had  jurisdiction  of  the  parties  and 
the  subject-matter  and  the  judge  was  acting  pursuant  to 
statutory  authority  and  was  at  least  a  de  facto  judge, 
whose  acts  are  valid  without  reference  to  the  constitution- 
ality of  the  statute :  Ball  v.  United  States,  140  U.  S.  118 ; 
In  re  Manning,  139  U.  S.  504;  Lillie  v.  Trentman,  130 
Ind.  16;  The  People  v.  Bangs,  24  111.  184.  In  Living- 
ston's App.,  88  Pa.  209,  the  proceedings  were  held  void 
because  there  was  no  statute  authorizing  a  judge  of  the 
Orphans'  Court  of  Allegheny  County  to  hold  court  in 
Washington  County,  where  there  was  no  separate  or- 
phans' court  and  where  the  law  required  such  court  to  be 
held  by  a  judge  of  the  court  of  common  pleas.  Moreover, 
the  right  of  the  judge  to  preside  in  the  present  case  was 
first  raised  in  this  court  and  came  too  late.  It  is  not  a 
question  of  the  court's  jurisdiction  of  the  subject-matter, 
but  of  the  right  of  a  particular  judge  to  preside  in  that 


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220    CORPORATION  F.  &  P.  CO.  v.  STOFPREGEN,  Appel. 
Opinion  of  the  Court.  [264  Pa. 

court  and  the  objection  as  to  him  is  considered  waived  if 
not  promptly  made:  23  Cyc.  616;  Greenwood  v.  State, 
116  Ind.  485.  The  same  is  true  as  to  the  alleged  lack  of 
a  formal  certificate  from  the  president  judge  of  the  court 
of  common  pleas. 

The  assignments  of  error  are  overruled  and  the  judg- 
ments are  affirmed. 


Hancock  v.  Philadelphia  &  Beading  Railway  Co., 

Appellant 

Workmen's  compensation — Railroads — Death — Interstate  cars. 

In  a  proceeding  under  the  Workmen's  Compensation  Act  against 
a  railroad  company  to  recover  damages  for  the  death  of  an  em- 
ployee of  the  defendant,  where  the  defendant  sets  up  as  a  defense, 
that  the  deceased  was  engaged  in  moving  interstate  commerce  cars 
at  the  time  he  was  killed,  a  finding  of  the  compensation  board  is 
conclusive,  which  in  effect  was  that  the  cars  of  coal  in  the  train, 
upon  which  the  deceased  was  working,  were  being  transported  from 
the  mines  to  different  yards  within  the  State,  for  the  convenience 
of  the  shipper,  and  that  the  subsequent  shipments  of  any  of  them 
upon  which  the  deceased  had  worked  to  a  point  without  the  State, 
were  made  after  his  death,  and  after  the  train  crew  with  which 
he  had  worked,  had  severed  its  connection  with  the  cars. 

Argued  Feb.  17, 1919.  Appeal,  No.  64,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  Schuylkill  Co., 
March  T.,  1918,  No.  234,  affirming  award  of  Workmen's 
Compensation  Board,  in  case  of  Margaret  L.  Hancock  v. 
Philadelphia  &  Beading  Bailway  Company.  Before 
Brown,  C.  J.,  Stewart,  Moschziskbr,  Walling  and 
Ebphart,  JJ.    Affirmed. 

Appeal  from    award    of    Workmen's   Compensation 
Board.    Before  Bbchtbl,  P.  J. 
The  court  affirmed  the  award  and  dismissed  the  appeal. 

Error  assigned  was  in  discharging  exceptions  to  the 
award. 


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HANCOCK  v.  PHILA.  &  R.  BY.  CO.,  Appellant.     221 
1919.]  Arguments — Opinion  of  the  Court. 

George  Oowen  Parry,  with  him  John  F.  Whalen,  for 
appellant. 

L.  L.  Frank  and  B.  A.  Reich,  for  appellee,  were  not 
heard. 

Peb  Curiam,  March  24, 1919 : 

The  sole  contention  of  the  appellant  is  that  at  the 
time  the  deceased  was  killed  he  was  engaged  in  moving 
interstate  commerce  cars.  This  was  a  question  of  fact, 
and  the  finding  of  the  compensation  board  was  that  the 
cars  of  coal  in  the  train  upon  which  the  deceased  was 
working  were  being  transported  from  the  mines  to  differ- 
ent yards  within  the  State,  for  the  convenience  of  the 
shipper,  and  that  the  subsequent  shipments  of  any  of 
them  upon  which  the  deceased  had  worked  to  a  point  with- 
out the  State  were  made  after  his  death  and  after  the 
train  crew  with  which  he  had  worked  had  severed  its 
connection  with  the  cars.  This  finding  was  conclusive 
upon  the  learned  court  below :  Poluskiewicz  v.  Phila.  & 
Reading  Coal  &  Iron  Company,  257  Pa.  305. 

Appeal  dismissed  and  award  affirmed. 


Neary  v.  Philadelphia  Coal  &  Iron  Co.,  Appellant, 

Workmen's  compensation — Medical  service*— Refusal  of  medical 
services  —  Change  of  physicians  —  Injury  —  Violence  to  physical 
structure  of  tody — Act  of  June  2,  1916,  P.  L.  7S6. 

1.  The  words  "shown  to  have  resulted  from  such  refusal"  in  par- 
agraph E  of  Section  306,  of  the  Workmen's  Compensation  Act  of 
June  2,  1915,  P.  L.  736,  modify  the  preceding  word  "injury"  as 
well  as  the  preceding  word  "increase"  so  as  not  to  deprive  the  claim- 
ant of  all  compensation  for  his  refusal  to  accept  medical  services 
from  his  employer,  but  only  of  compensation  for  injury  or  increase 
of  incapacity  caused  by  the  refusal  to  accept  medical  assistance. 
The  mere  fact  that  the  claimant  has  dismissed  a  physician  engaged 
by  his  employer,  and  engaged  another,  will  not  deprive  him  abso- 
lutely of  all  compensation  for  his  injuries. 


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222  NEAEY  v.  PHILA.  COAL  &  IRON  CO.,  Appellant. 

Syllabus— Opinion  of  the  Court.  [264  Pa. 

2.  The  fact  that  section  801  of  the  act  provides  that  the  terms 
"injury"  and  ''personal  injury"  as  used  in  the  act  should  be  con- 
strued to  mean  only  violence  to  the  physical  structure  of  the  body, 
and  such  disease  or  infection  as  naturally  results  therefrom,  does  not 
change  the  construction. 

3.  Malpractice  may  constitute  a  violence  to  the  physical  struc- 
ture of  the  body,  and  disease  or  infection  may  naturally  result  from 
refusal  to  accept  the  reasonable  surgical  or  medical  services  tendered 
to  an  injured  employee. 

Argued  Feb.  18, 1919.  Appeal,  No.  159,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  Superior  Court,  Oct. 
T.,  1917,  No.  Ill,  dismissing  appeal  from  order  of  C.  P. 
Schuylkill  Co.,  Sept.  T.,  1916,  No.  191,  sustaining  award 
of  Workmen's  Compensation  Board  in  case  of  Anthony 
F.  Neary  v.  Philadelphia  &  Beading  Coal  &  Iron  Com- 
pany. Before  Brown,  C.  J.,  Stbwaet,  Moschziskbr, 
Walling  and  Kbphart,  JJ.    Affirmed. 

Appeal  from  order  sustaining  award  of  Workmen's 
Compensation  Board.    See  69  Pa.  Superior  Ct.  562. 

The  Superior  Court  affirmed  the  judgment  of  the  com- 
mon pleas.    Defendant  appealed. 

Error  assigned  was  the  judgment  of  the  Superior 
Court. 

John  F.  Whalen,  with  him  George  Ellis,  for  appellant. 

Francis  H.  Bohlen,  with  him  Isaac  M.  Price,  for  ap- 
pellee. 

Opinion  by  Mr.  Justice  Walling,  March  24, 1919  : 
This  case  is  under  the  Workmen's  Compensation  Act 
of  June  2, 1915,  P.  L.  736.  Plaintiff,  while  in  defendant's 
employ  as  car  runner,  on  March  9, 1916,  had  a  finger  so 
crushed  as  to  require  surgical  and  medical  assistance, 
which  was  reasonably  tendered  by  defendant.  However, 
after  accepting  such  assistance  for  three  days,  plaintiff 
consulted  his  own  family  doctor,  who  thereafter  took 


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NBABY  v.  PHILA.  COAL  &  IRON  CO.,  Appellant.   223 
1919.]  Opinion  of  the  Court. 

charge  of  the  case  and  rendered  suitable  surgical  and 
medical  assistance,  so  that  plaintiff  was  not  injured  nor 
his  incapacity  increased  by  the  change  of  physicians. 
But  it  is  strenuously  contended  that  plaintiff  by  his  re- 
fusal to  accept  the  reasonable  assistance  so  tendered 
forfeited  all  right  to  compensation  for  the  injury.  This 
contention  is  based  on  the  last  clause  of  paragraph  "e"  of 
sec.  306  of  the  act  (p.  743),  which  states,  "If  the  em- 
ployee shall  refuse  reasonable  surgical,  medical,  and  hos- 
pital services,  medicines  and  supplies,  tendered  to  him 
by  his  employer,  he  shall  forfeit  all  right  to  compensation 
for  any  injury  or  any  increase  in  his  incapacity  shown  to 
have  resulted  from  such  ref usal." 

The  referee  duly  heard  the  case,  made  formal  findings 
and  awarded  plaintiff  compensation ;  from  which  defend- 
ant, on  the  question  of  law  above  stated,  appealed  suc- 
cessively to  the  compensation  board,  the  court  of  com- 
mon pleas,  the  Superior  Court  and  now  to  this  court. 
The  award  was  clearly  right,  as  the  natural  construction 
of  the  words  "shown  to  have  resulted  from  such  refusal" 
refer  to  "any  injury"  as  well  as  to  "any  increase  in  his 
incapacity."  Chairman  Mackey  of  the  compensation 
board  properly  interprets  this  clause  as  though  it  read, 
"If  the  employee  shall  refuse  reasonable  surgical,  medi- 
cal and  hospital  services,  medicines  and  supplies,  ten- 
dered to  him  by  his  employer,  he  shall  forfeit  all  right  to 
compensation  for  any  increase  in  his  incapacity  shown 
to  have  resulted  from  such  refusal."  The  manifest  pur- 
pose is  to  protect  the  master  from  any  loss  that  might 
result  because  of  the  servant's  refusal  to  accept  the  ten- 
dered assistance,  not  to  penalize  the  latter  for  exercising 
the  important  privilege  of  employing  his  own  physician. 
However,  by  so  doing  the  employee  assumes  the  responsi- 
bility for  his  own  treatment  and  must  bear  the  loss  re- 
sulting from  neglect  or  lack  of  skill  therein. 

If  by  refusing  the  tendered  assistance  the  servant  for- 
feits all  right  to  compensation  for  the  injury  he  has  sus- 
tained, then  the  balance  of  the  sentence  is  meaningless ; 


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224  NBAEY  v.  PHILA.  COAL  &  IBON  CO.,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

for  if  his  right  to  recover  for  the  primary  disability  is 
gone  the  whole  claim  is  gone  and  the  master  has  no  con- 
cern with  the  question  of  increased  incapacity,  which 
would  be  but  a  part  of  the  claim  already  forfeited.  And 
the  fact  that  the  employer  is  expressly  released  from  lia- 
bility for  the  increased  incapacity  caused  by  the  em- 
ployee's refusal  to  accept  the  proffered  medical  assist- 
ance is  inconsistent  with  the  claim  of  an  entire  forfei- 
ture, as  the  express  provision  that  certain  conduct  shall 
constitute  a  forfeiture  of  a  designated  part  of  the  claim 
implies  that  the  balance  remains. 

Appellant  calls  our  attention  to  that  clause  in  sec.  301 
of  the  act  (p.  738)  which  provides  that,  "The  terms  'in- 
jury' and  'personal  injury'  as  used  in  this  act  shall  be 
construed  to  mean  only  violence  to  the  physical  structure 
of  the  body,  and  such  disease  or  infection  as  naturally 
results  therefrom."  Conceding  that  such  definition  ap- 
plies to  the  word  "injury"  as  used  in  the  clause  in  ques- 
tion, it  does  not  change  the  construction.  Malpractice 
might  constitute  a  violence  to  the  physical  structure  of 
the  body,  and  disease  or  infection  might  naturally  result 
from  refusal  to  accept  the  reasonable  surgical  or  medical 
services  tendered  to  an  injured  employee.  But  it  is  not 
necessary  to  anticipate  the  cases  where  injury  might  re- 
sult from  such  refusal. 

The  assignments  of  error  are  overruled  and  the  judg- 
ment is  affirmed. 


Kaeir's  Estate. 

Practice,  Supreme  Court— Appeals— Interlocutory  order — Quash- 
ing appeal. 

Where  the  orphans'  court  dismisses  exceptions  to  an  account  with 
a  further  order  that  a  "decree  of  distribution  be  prepared  in  ac- 
cordance with  the  views  expressed  in  this  opinion,"  such  order  is 
merely  interlocutory,  and  no  appeal  can  be  taken  until  the  decree 
is  absolutely  confirmed. 


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KAEIR 'S  ESTATE.  225 

1919.]  Statement  of  Facts — Opinion  of  the  Court 

Argued  Feb.  18, 1919.  Appeal,  No.  226,  Jan.  T.,  1919, 
by  Emily  Amelia  Kaeir  et  al.,  from  decree  of  O.  C. 
Schuylkill  Co.,  Sept.  T.,  1916,  No.  2,  dismissing  excep- 
tions to  an  executor's  account  in  estate  of  Margaret  C. 
Kaeir,  deceased.  Before  Brown,  C.  J.,  Stewart, 
Moschzisker,  Walling  and  Kbphart,  JJ.  Appeal 
quashed. 

Exceptions  to  account  of  an  executor. 

Errors  assigned  were  in  dismissing  exceptions  to  the 
account. 

Edmund  D.  Smith,  with  him  James  J.  Moran  and  J.  H. 
Garrahan,  for  appellants. 

A.  D.  Entitle,  with  him  T.  H.  B.  Lyon  and  D.  W. 
Kaercher,  for  appellees. 

G.  H.  Gerber,  with  him  W.  P.  Ramscvy,  for  Marie  F. 
Elliott,  appellee. 

Jno.  F.  Whalen,  with  him  George  Ellis,  for  Josephine 
Haughney,  appellee. 

Per  Curiam,  March  24/ 1919 : 

After  dismissing  the  exceptions  to  the  account  of  the 
appellees,  the  order  of  the  court  was,  "Let  a  decree  of  dis- 
tribution be  prepared  in  accordance  with  the  views  ex- 
pressed in  this  opinion."  Until  such  decree  is  absolutely 
confirmed  there  will  be  no  final  action  by  the  court  below 
from  which  an  appeal  will  lie.  What  has  been  appealed 
from  is  merely  interlocutory :  Hoyt's  Est.,  232  Pa.  189. 

Appeal  quashed. 


Vol.  cclxiv — 15 

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226  LACKAWANNA  TR.  CO.  v.  CARLUCCI,  Appellant. 

Syllabus— Arguments.  [264  Pa. 

Lackawanna  Trust  Co.  v.  Carlucci,  Appellant 

Promissory  notes  —  Negotiable  instruments  —  Accommodation 
maker — Consideration — Contemporary  parol  promise — Affidavit  of 
defense. 

1.  In  an  action  on  a  promissory  note  by  a  trust  company,  the 
holder,  against  the  maker,  an  affidavit  of  defense  is  sufficient,  which 
avers  that  defendant  became  maker  of  the  note  at  the  request  and 
for  the  sole  benefit  of  the  plaintiff,  and  on  reliance  upon  a  con* 
temporary  parol  promise  by  the  plaintiff  that  the  defendant  would 
not  be  liable  to  it  upon  said  note. 

2.  In  such  a  case  the  plaintiff  is  not  a  holder  of  the  note  for 
value,  and  the  defendant  is  a  mere  accommodation  maker  of  it. 

Practice,  0.  P. — Affidavit  of  defense — Averments  to  be  taken  as 
true. 

3.  The  averments  of  an  affidavit  of  defense  are  to  be  taken  as 
true,  and  the  defendant  is  not  required  to  set  forth  the  manner  in 
which  they  will  "be  proved,  nor  the  evidence  by  which  they  will  be 
substantiated. 

Argued  Feb.  24,  1919.  Appeal,  No.  39,  Jan.  T.,  1918, 
by  defendant,  from  order  of  C.  P.  Lackawanna  Co.,  Nov. 
T.,  1916,  No.  301,  making  absolute  rule  for  judgment  for 
want  of  a  sufficient  affidavit  of  defense  in  case  of  Lacka- 
wanna Trust  Co.  v.  Frank  Carlucci.  Before  Brown, 
C.  J.,  Stbwaet,  Moschziskhe,  Fbazbb  and  Ebphabt,  JJ. 
Reversed. 

Assumpsit  on  a  promissory  note.    Before  Nbwoomb,  J. 
The  court  made  absolute  the  rule  for  judgment.    De- 
fendant appealed. 

Error  assigned  was  the  order  of  the  court 

JoKn  Memolo,  with  him  Baverio  Rosato,  for  appellant. 
— An  accommodation  bill  or  note  is  one  to  which  the  ac- 
commodating party  has  put  his  name,  without  consid- 
eration, for  the  purpose  of  accommodating  some  other 


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LACKAWANNA  TR.  CO.  v.  CARLUCCI,  Appellant.  227 
1919.]  Arguments — Opinion  of  the  Court 

party  who  is  to  use  it  and  is  expected  to  pay  it.  Between 
the  accommodating  and  the  accommodated  parties,  the 
consideration  may  be  shown  to  be  wanting:  Peale  v.  Ad- 
dicks,  174  Pa.  543;  Tasker>s  Est.,  182  Pa.  122;  County 
Savings  Bank  v.  Focht,  19  Pa.  Dist.  Rep.  687;  Clothier 
v.  Webster  Foundry  Sand  Co.,  21  Pa.  Superior  Ct.  386; 
Gandy  v.  Weckerly,  220  Pa.  285;  Potter  v.  Grimm,  248 
Pa.  440. 

Edgar  A.  Jones,  for  appellee. — Appellee  maintains 
that  the  alleged  contemporaneous  oral  agreement  set 
forth  in  the  affidavit  of  defense  is  not  sufficient  to  prevent 
judgment  in  favor  of  plaintiff:  First  Nat.  Bank  of  Maha- 
noy  City  v.  Dick,  22  Pa.  Superior  Ct.  445 ;  Clinch  Val. 
Coal  &  Iron  Co.  v.  Willing,  180  Pa.  165. 

Opinion  by  Me.  Chief  Justice  Brown,  March  24, 
1919: 

This  action  was  brought  by  the  Lackawanna  Trust 
Company  against  Frank  Carlucci  as  the  maker  of  a 
promissory  note,  dated  October  7,  1913,  and  payable 
three  months  after  date  to  the  order  of  J.  A.  Cassese,  for 
|3,000.  The  note  was  endorsed  by  the  payee,  and  the 
trust  company  avers  in  its  statement  of  claim  that  it  is 
the  holder  thereof  in  due  course.  This  is  specifically 
denied  in  the  affidavit  of  defense,  and  the  defendant  thus 
substantially  details  the  circumstances  under  which  he 
signed  the  note  and  the  trust  company  became  the  holder 
of  it :  In  September,  1910,  the  Carlucci  Stone  Company 
made  its  promissory  note  for  the  sum  of  |3,000,  payable 
to  the  order  of  J.  A.  Cassese  at  the  plaintiff's  bank,  three 
months  after  date;  said  note,  by  successive  renew- 
als, was  continued  in  force  until  May,  1913,  when,  by 
proceedings  duly  instituted  in  the  United  States  District 
Court,  the  said  stone  company  was  adjudged  a  bankrupt ; 
after  the  last  renewal  of  the  note  the  plaintiff, 
through  its  treasurer,  Frank  Humler,  refused  to  renew 
it,  because  the  company  had  been  adjudged  a  bankrupt, 

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228  LACKAWANNA  TR.  CO.  v.  CARLUCCI,  Appellant 

Opinion  of  the  Court.  [264  Pa. 

and  requested  the  defendant  to  become  the  maker  of  a 
note  for  the  same  amount,  agreeing  to  look  to  the  endorser, 
J.  A.  Cassese,  the  payee  in  the  original  note,  for  pay- 
ment of  the  obligation;  defendant  specifically  stated 
that  he  would  consent  to  become  maker  solely  upon  con- 
dition that  he  would  not  be  liable  for  the  obligation  of 
the  stone  company;  whereupon  the  plaintiff,  through 
the  said  Frank  Humler,  agreed  to  take  the  note  in  suit 
under  these  conditions,  and  stated  that  he  wanted  the 
obligation  kept  alive  on  the  books  of  the  institution  until 
the  legal  status  of  the  stone  company,  as  to  dividends, 
should  be  definitely  established.  The  learned  court  be- 
low having  been  of  opinion  that,  as  these  averments  con- 
tradicted and  practically  destroyed  the  obligation  given 
by  the  defendant,  the  plaintiff  was  entitled  to  judgment, 
and  the  rule  for  it  was  made  absolute. 

The  averments  in  the  affidavit  of  defense  are  to  be 
taken  as  true  and  the  defendant  was  not  required,  as 
counsel  for  appellee  seems  to  think,  to  set  forth  the  man- 
ner  in  which  they  will  be  proved,  nor  the  evidence  by 
which  they  will  be  substantiated :  Gandy  v.  Weckerly, 
220  Pa.  285;  Endlich  on  Affidavits  of  Defense,  324. 

The  holder  of  a  note  in  due  course  is  one  who  has  taken 
it  "in  good  faith  and  for  value."  An  accommodation 
maker  is  one  who  signed  it  "without  receiving  value 
therefor  and  for  the  purpose  of  lending  his  name  to  some 
other  person" :  Negotiable  Instruments  Act  of  May  16, 
1901,  P.  L.  194.  Under  the  averments  in  the  affidavit  of 
defense,  the  plaintiff  is  not  a  holder  of  the  note  for  value, 
and  the  defendant  is  a  mere  accommodation  maker  of  it. 
While  he  would  be  liable  on  it  to  a  holder  for  value,  there 
is  no  liability  on  it  to  the  appellee,  if  what  is  averred  in 
the  affidavit  of  defense  be  true.  "Between  accommo- 
dating and  accommodated  parties  the  consideration  may 
be  shown  to  be  wanting" :  Daniels  on  Negotiable  In- 
struments, sec.  109.  In  Peale  v.  Addicks,  174  Pa.  543, 
the  note  upon  which  suit  was  brought  was  endorsed  by 
the  defendant  without  consideration,  solely  for  the  ac- 


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LACKAWANNA  TR.  CO.  v.  CAELUCCI,  Appellant.  229 
1919.]  Opinion  of  the  Court. 

commodation  of  the  plaintiff,  and  in  holding  that  the  af- 
fidavit of  defense,  which  so  averred,  was  sufficient  to  pre- 
vent judgment,  we  said,  through  Mr.  Chief  Justice  Ster- 
ebtt:  "The  averments  contained  in  the  affidavit  of  de- 
fense are  sufficient  to  carry  the  case  to  a  jury.  If  it  be 
true, — as  is  substantially  averred  in  the  affidavit  of  de- 
fense,— that  defendant,  without  any  consideration,  at 
plaintiff's  request,  and  solely  for  his  accommodation,  in- 
dorsed the  note  in  suit,  'so  that  he  might  use  it  with  his 
bank/  it  necessarily  follows  that,  as  between  themselves, 
the  defendant  is  in  the  proper  sense  of  the  term  an  'ac- 
commodation indorser/  and  the  plaintiff  should  not  be 
permitted  to  recover."  This  was  but  the  reannounce- 
ment  of  a  long-settled  rule.  "The  party  for  whose  bene- 
fit accommodation  paper  has  been  made  acquires  no 
rights  against  the  accommodation  party,  who  may  set  up 
the  want  of  consideration  as  a  defense  to  an  action  by  the 
accommodated  party,  since  as  between  them  there  is  no 
consideration,  a  fact  which  is  always  a  defense  to  a  suit 
on  negotiable  paper  between  the  immediate  parties" :  8 
Corpus  Juris,  sec.  409.  In  Tasker's  Est.,  182  Pa.  122, 
the  receiver  of  a  bank  presented,  as  a  claim  against  the 
estate  of  the  deceased,  the  last  of  a  series  of  renewals  of 
a  note  which  he  had  originally  given  to  the  bank  without 
consideration  and  solely  for  its  accommodation,  at  the  re- 
quest of  its  president.  In  holding  that  if  such  was  the 
case  the  estate  was  not  liable,  Mr.  Justice  Green  said 
this  is  too  manifest  "to  require  argument  in  its  support." 
The  affidavit  of  defense  in  the  case  now  before  us  re- 
quires its  submission  to  a  jury,  and  the  judgment  is  there- 
fore reversed  with  a  procedendo^ 


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230    McGURBIN,  Appellant,  v.  HUDSON  COAL  CO. 

Syllabus— Opinion  of  the  Court.  [264  Pa. 

McGrurrin,  Appellant,  v.  Hudson  Coal  Company. 

Workmen's  compensation — Findings  of  board — Conclusiveness  of 
findings. 

In  a  proceeding  under  the  Workmen's  Compensation  Act  by  a 
widow  to  recover  damages  for  the  death  of  her  husband,  a  finding 
of  the  compensation  board  that  the  deceased  died  of  natural  causes, 
and  that  there  was  no  evidence  that  there  had  been  "any  accident  at 
all/'  is  conclusive  upon  the  court. 

Argued  Feb.  24,  1919.  Appeal,  No.  41,  Jan.  T.,  1919, 
by  plaintiff,  from  order  of  C.  P.  Lackawanna  Co.,  June 
T.,  1917,  No.  149,  dismissing  appeal  from  Workmen's 
Compensation  Board  in  case  of  Mary  A.  McGurrin  v. 
Hudson  Coal  Company.  Before  Bbown,  C.  J.,  Stew- 
art, Mosghziskbr,  Frazer  and  Ebphabt,  J  J.   Affirmed. 

Appeal  from  decision  of  Workmen's  Compensation 
Board  which  reversed  an  award  of  the  referee  in  favor  of 
the  claimant. 

The  court  dismissed  the  appeal.    Claimant  appealed. 

Error  .assigned  was  in  dismissing  the  appeal. 

William  J.  Fitzgerald,  with  him  Roger  J.  Dever,  for 
appellant. 

James  H.  Torrey,  for  appellee. 

Per  Curiam,  March  24, 1919  : 

The  appellant  claims  compensation  from  the  appellee 
on  the  ground  that  the  death  of  her  husband  resulted 
from  an  accident  which  occurred  while  he  was  in  its 
employ.  The  finding  of  the  compensation  board  is  that 
he  died  from  natural  causes,  and  that  there  was  no  evi- 
dence that  there  had  been  "any  accident  at  all."  This 
was  conclusive  upon  the  court  below,  and  it  properly  so 


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McGUBRIN,  Appellant,  v.  HUDSON  COAL  CO.    231 
1919.]  Opinion  of  the  Court. 

held:  Poluskiewicz  y.  Philadelphia  &  Beading  Goal  & 
Iron  Company,  257  Pa.  305. 
Appeal  dismissed. 


Dunmore  Borough's  Election. 

Election  law — Amendment — Jurisdiction  of  court  —  Thirty-day 
limit— Act  of  May  19, 1874,  P.  L.  218. 

In  a  contested  election  proceeding,  an  amendment  which  affects 
the  jurisdiction  of  the  court  cannot  he  allowed  after  the  expiration 
of  the  statutory  period  of  thirty  days. 

Argued  Feb.  24, 1919.  Appeal,  No.  164,  Jan.  T.,  1919, 
by  V.  Ameliano,  E.  E.  Myers  et  al.,  from  order  of  Q.  8. 
Lackawanna  Co.,  Dec.  T.,  1917,  No.  234,  dismissing  pe- 
tition and  quashing  proceedings  In  re  Contested  Elec- 
tion in  the  Fifth  Ward  of  the  Borough  of  Dunmore.  Be- 
fore Brown,  C.  J.,  Stbwabt,  Moschzisker,  Frazeb  and 
Kbphabt,  J  J.    Affirmed. 

Petition  to  contest  the  election  of  James  O'Hara  to 
the  office  of  councilman  of  the  Fifth  Ward  of  the  Bor- 
ough of  Dunmore.  The  petition  was  filed  on  December 
5,  1917.  On  December  29,  1917,  a  rule  was  granted  to 
dismiss  the  petition  on  the  ground  that  it  was 
not  signed  by  twenty-five  qualified  electors,  and  that  the 
affidavit  was  not  sworn  to  by  five  qualified  electors.  On 
August  21, 1918,  a  motion  to  amend  the  petition  by  add- 
ing the  name  of  six  other  petitioners,  was  refused,  and 
the  proceedings  were  quashed  in  an  opinion  by  Edwabds, 
P.J. 

The  contestants  appealed. 

Error  assigned  was  the  order  of  the  court  quashing  the 
appeal. 

A.  A.  Vosburg,  with  him  R.  "A.  Zimmerman,  for  appel- 
lants.— The  proposed  amendment  cured  any  possible  de- 


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232  DUNMORE  BOROUGH 'S  ELECTION. 

Arguments — Opinion  of  the  Court  [264  Pa. 

feet,  and  it  should  have  been  allowed  by  the  court :  Shep- 
pard's  Contested  Election,  65  Pa.  20;  Welti's  Contested 
Election,  3  W.  N.  C.  165;  Wylie>s  App.,  239  Pa.  510; 
Moock  v.  Conrad,  155  Pa.  586. 

David  J.  Reedy,  with  him  M .  J.  Murray,  Jr.,  for  ap- 
pellee.— An  amendment  to  cure  a  jurisdictional  defect 
in  the  original  petition  will  not  be  allowed  after  the  ex- 
piration of  the  thirty  days  allowed  for  filing  the  petition : 
Election  Cases,  65  Pa.  20;  Contested  Election,  1  W.  N. 
C.  326;  Williams  v.  Johnson,  16  W.  N.  C.  223;  North 
Union  Twp.  Election  Case,  250  Pa.  98;  Forst's  License, 
208  Pa.  578. 

Per  Curiam,  March  24, 1919 : 

This  appeal  is  dismissed,  at  the  costs  of  the  appellants, 
on  the  following  from  the  opinion  of  the  learned  presi- 
dent judge  of  the  court  below  refusing  to  allow  their  pe- 
tition to  be  amended  and  quashing  the  proceeding: 
"Whatever  has  been  said  by  our  appellate  courts  as  to  the 
liberality  with  which  amendments  should  be  allowed  in 
contested  election  cases,  it  must  be  understood  that 
amendments  which  affect  the  jurisdiction  of  the  court 
cannot  be  allowed  after  the  expiration  of  the  statutory 
period  of  thirty  days." 

Appeal  dismissed. 


Stark's  Estate. 


Witts— Construction — Estate  in  fee  simple — Gift  to  daughter- 
Death  in  lifetime  of  testator — Substitutionary  gift. 

1.  Where  a  testator  gives  the  "absolute  control"  of  all  of  his 
estate  to  his  wife  together  with  the  profits  and  income  thereof,  sub- 
ject to  the  comfortable  living  and  support  of  his  daughter,  and  in 
case  of  the  death  of  the  daughter  in  the  wife's  lifetime,  then  to 
the  wife  in  fee  simple,  but  if  the  daughter  outlives  the  wife,  then 
the  absolute  control  of  the  property  remaining  at  the  death  of  the 
wife,  to  the  daughter  together  with  the  profits  and  income  thereof 


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STARK'S  ESTATE.  233 

1919.]  Syllabus— Statement  of  Facts, 

as  long  as  she  lives,  and  at  her  death  to  her  heirs  is  a  gift  in  fee 
simple  to  the  daughter,  surviving  the  testator  and  his  wife,  and  is 
not  cut  down  by  a  subsequent  clause  of  the  will  providing  that  in 
case  the  daughter  "should  die  leaving  no  issue  of  her  body  living 
at  her  death,"  then  the  property  shall  vest  in  fee  simple  in  other 
persons  named. 

2.  Such  latter  clause  is  not  a  limitation  or  curtailment  of  the 
devise,  but  is  simply  alternative  or  substitutionary,  and  to  take 
effect  only  on  the  death  of  the  daughter  in  testator's  lifetime. 

Argued  Feb.  24, 1919.  Appeal,  No.  175,  Jan.  T.,  1919, 
by  Boyd  M.  Squier,  from  decree  of  O.  C.  Wyoming  Co., 
Partition  Docket,  No.  1,  page  283,  dismissing  petition  for 
partition  in  Estate  of  Perry  Stark.  Before  Brown,  C.  J., 
Stewart,  Moschziskbr,  Frazbr  and  Kbphart,  J  J.  Af- 
firmed. 

Petition  of  Boyd  M.  Squier,  son  of  Harriet  Stark 
Squier,  deceased,  for  partition. 

The  case  turned  upon  the  construction  of  the  will  of 
Perry  Stark,  the  material  portion  of  which  was  as  fol- 
lows : 

"Second: — I  will,  give,  devise  and  bequeath  to  my 
wife,  Alvira  E.  Stark,  the  absolute  control  of  all  my 
property,  whatsoever,  together  with  the  profits,  income 
and  advantages  thereof,  subject  only,  however,  to  furnish 
therefrom  unto  my  daughter,  Georgianna,  intermarried 
with  David  Winfield,  a  comfortable  living  and  support. 

"And  in  case  of  the  death  of  my  said  daughter,  Georgi- 
anna, before  the  death  of  my  said  wife,  Alvira  E.,  then 
and  in  that  case  I  will  and  bequeath  unto  my  said  wife, 
Alvira  E.,  the  whole  of  my  property,  absolutely  in  fee 
simple;  but  if  my  said  daughter,  Georgianna,  outlive 
my  wife,  Alvira  E.,  then  and  in  that  case,  I  will  and  be- 
queath unto  her,  the  said  Georgianna,  the  absolute  con- 
trol of  all  my  property,  whatsoever  remaining  at  the 
death  of  my  said  wife,  together  with  the  profits,  income 
and  advantages  thereof,  so  long  as  she,  my  said  daughter 
shall  live,  and  at  her  death  to  her  heirs,  absolutely  in  fee 
simple.   And  in  case  my  said  daughter,  Georgianna,  shall 

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234  STARK'S  ESTATE. 

Statement  of  Facta — Opinion  of  the  Court  [264  Pa. 
die,  leaving  no  issue  of  her  body,  living  at  her  death,  then 
and  in  that  case,  I  will,  devise  and  bequeath  all  my 
property  then  remaining,  absolutely  and  in  fee  simple, 
unto  Harriet  Stark,  intermarried  with  Oliver  Squier, 
Henrietta  Stark,  intermarried  with  I.  W.  Billings,  and 
Frances  Stark,  share  and  share  alike." 

Alvira  E.  Stark  survived  the  testator  and  died  Sep- 
tember 27, 1903.  Georgianna  Winfleld  died  on  February 
20,  1917,  leaving  a  husband  but  no  issue  to  survive  her. 
In  her  lifetime  she  executed  a  deed  to  Frances  Stark 
Hungerford  of  all  her  interest  and  estate  that  she  had 
received  by  virtue  of  her  father's  will.  The  court  dis- 
missed the  petition,  holding  that  Georgianna  took  a  fee 
in  the  estate,  which  by  her  deed  passed  to  Frances  Stark 
Hungerford, 

Error  assigned  was  the  decree  of  the  court. 

CHarles  L.  Vanscotten,  with  him  Edward  B.  Farr,  for 
appellant. 

Joseph  Wood  Piatt  and  J.  E.  Stickler,  for  appellee, 
were  not  heard. 

Pbb  Curiam,  March  24, 1919 : 

The  devise  of  Perry  Stark  to  his  daughter,  Georgianna, 
was  absolute,  for  she  survived  his  wife.  His  provision 
that  if  she  should  die  "leaving  no  issue  of  her  body  living 
at  her  death,"  then  over  to  certain  named  persons,  was 
not  a  limitation  or  curtailment  of  the  devise,  but  simply 
alternative  or  substitutionary  and  to  take  effect  only  on 
the  death  of  the  daughter  in  his  lifetime :  Mickley's  App., 
92  Pa.  514;  Morrison  v.  Truby,  145  Pa.  540;  McAlpin's 
Est.,  211  Pa.  26.  The  fee  in  the  farm  of  the  testator  un- 
doubtedly vested  in  the  daughter,  and  the  petition  for  its 
partition  by  one  having  no  interest  in  it  was  properly  dis- 
missed. 

Decree  affirmed  at  appellant's  costs. 


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LILLIBRIDGE  et  al.,  Appel.,  v.  LACK.  COAL  CO.  285 
1919.]  Syllabus— Statement  of  Facts. 


Lillibridge  et  al.,  Appellants,  v.  Lackawanna  Goal 

Company. 

Mines  and  mining — Lease — Exhaustion  of  coal — Right-of-way  to 
other  coal. 

1.  A  bill  in  equity  by  a  lessor  in  a  coal  lease  against  the  lessee 
for  an  accounting  and  a  redelivery  of  the  property,  is  properly  dis- 
missed, where  it  appears  that  the  lease  granted  to  the  lessee  all  the 
merchantable  coal  "until  the  exhaustion  thereof  with  full  mining 
rights,  with  a  covenant  by  the  lessee  to  leave  pillars  for  surface 
support,  and  that  by  a  supplemental  agreement,  the  lessee,  was  to 
have  the  right  for  a  valuable  consideration  named,  to  use  the  mine 
as  a  right-of-way  for  the  transportation  of  coal  from  adjoining 
properties  owned  by  the  lessee,  and  the  court  finds  as  a  fact  that 
the  coal  is  not  exhausted,  and  that  the  colliery  is  in  full  operation. 

2.  In  such  a  case  the  use  of  the  mine  as  a  right-of-way  for  the 
transportation  of  other  coal  of  the  lessee,  is  not  limited  in  its  dur- 
ation to  the  life  of  the  mining  in  the  mine  itself. 

Practice,  Supreme  Court — Assignments  of  error — Rulings  on 
evidence— Equity  practice. 

8.  Assignments  of  error  to  rulings  on  evidence  in  an  appeal  from 
a  decree  dismissing  a  bill  in  equity,  will  not  be  considered,  where  no 
exceptions  to  such  rulings  appear  as  having  been  filed  after  the 
entry  of  the  decree  nisi,  so  that  they  might  be  passed  upon  by  the 
court  in  banc,  as  required  by  Equity  Rule  No.  64. 

Argued  Feb.  24, 1919.  Appeal,  No.  192,  Jan.  T.,  1919, 
by  plaintiffs,  from  decree  of  C.  P.  Lackawanna  Co.,  Oct. 
T.,  1916,  No.  17,  dismissing  bill  in  equity  in  case  of  Sarah 
C.  Lillibridge  et  al.,  Trustee  for  John  Lillibridge  and 
Levi  B.  Lillibridge,  Committee  in  Lunacy  for  Lucilla  A. 
Lillibridge,  v.  Lackawanna  Coal  Co.  Before  Brown, 
C.  J.,  Stewart,  Moschziskbr,  Frazer  and  Kbphart,  J  J. 
Affirmed. 

Bill  in  equity  for  discovery,  accounting  and  a  redeliv- 
ery of  leased  premises.    Before  Newcomb,  J. 

The  court  entered  a  decree  dismissing  the  bill.  Plain- 
tiffs appealed. 


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236  LILLlBRIbGE  et  al.,  Appel.,  v.  LACK.  COAL  CO. 

Assignment  of  Errors — Arguments.  [264  Pa. 

Errors  assigned,  among  others,  were  (1-6)  in  exclud- 
ing certain  offers  of  evidence,  setting  forth  the  offers,  ob- 
jections and  rulings,  but  not  disclosing  any  exceptions  to 
the  rulings  filed  after  the  entry  of  the  decree  nisi;  (7-43) 
in  overruling  various  exceptions  to  the  court's  findings 
of  fact  and  conclusions  of  law;  (44)  the  decree  nisi; 
and  (45)  final  decree  dismissing  the  bill. 

George  Z>.  Taylor,  with  him  Cornelius  Gomegys  and 
William  L.  Houck,  for  appellants. — The  lease  granted  a 
fee  determinable  by  the  exhaustion  of  the  coal. 

The  word  "exhaustion"  is  qualified  and  defined  by  the 
language  "under  the  terms  of  this  indenture,"  which 
must  mean  "in  accordance  with"  such  terms;  but  the 
terms  of  the  lease  contained  the  provision  that  certain 
coal  shall  not  be  mined. 

While  the  grant  is  admitted  to  operate  as  a  convey- 
ance of  coal  in  place,  it  does  not  operate  as  a  conveyance 
of  all  the  coal.  The  legal  effect  of  the  words  above 
quoted  from  the  seventh  paragraph  of  the  grant,  is  to 
"except"  from  the  grant  a  reasonable  amount  of  coal  in 
pillars  as  support  for  the  surface ;  and  the  "reasonable 
amount  of  coal"  provided  for  by  the  grant  is  a  thing 
"excepted"  from  the  general  operation  of  the  grant. 

An  "exception"  in  a  grant  of  real  estate,  is  not  re- 
quired to  be  of  any  definite  divided  part  of  the  thing  in- 
cluded in  the  general  terms  of  the  grant.  It  may  be  of 
an  undivided  interest,  to  be  measured  and  ascertained 
at  a  later  time  by  any  reasonable  available  means  of 
ascertainment :  Weakland  v.  Cunningham,  3  Sadler  519 ; 
Huss  v.  Jacobs,  210  Pa.  145;  Sheffield  Water  Co.  v.  Elk 
Tanning  Co.,  225  Pa.  614;  Hollenback  Coal  Co.  v.  Le- 
high, etc.,  Coal  Co.,  219  Pa.  124 ;  First  Methodist  Episco- 
pal Church  v.  Old  Columbia  Public  Ground  Co.,  103  Pa. 
608 ;  Wusthoff  v.  Dracourt,  3  Watts  240 ;  Slegel  v.  Lauer, 
148  Pa.  236;  McCalla's  Est.,  16  Pa.  Superior  Ct.  202. 

The  legal  title  to  the  pillar  coal  was  at  all  times  in  the 
appellants  and  their  predecessors  in  title,  and  when  the 


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LILLIBRIDGE  et  al.,  Appel.,  v.  LACK.  COAL  CO.  237 
1919.]  Arguments — Opinion  of  the  Court 

pillar  coal  was  set  apart  and  definitely  identified,  and  left 
standing  in  place,  the  title  of  the  appellants  and  their 
predecessors  in  title  therein  became  both  complete  and 
exclusive,  without  any  further  act  on  their  part:  Web- 
ber v.  Vogel,  189  Pa.  156;  Denniston  v.  Haddock,  200 
Pa.  426;  Coolbaugh  v.  Lehigh,  etc.,  Coal  Co.,  213  Pa.  28; 
Gallagher  v.  Hicks,  216  Pa.  243. 

Henry  A.  Knapp  and  John  P.  Kelly,  with  them  Reese 
H.  Harris  and  John  R.  Wilson,  for  appellee. — The  coal 
in  this  tract,  even  if  the  pillars  be  left  out  of  account,  has 
not  yet  been  exhausted.  Exhausted  does  not  mean  three- 
fourths  mined  out,  nor  nearly  mined  out,  but  means  en- 
tirely mined  out  so  far  as  it  can  possibly  be  mined  out : 
Hoyt  v.  Kingston  Coal  Co.,  212  Pa.  205. 

The  appellee's  right  to  exclusive  possession  under  the 
supplemental  agreement  of  1918  is  not  determined :  Lilli- 
bridge  v.  Lackawanna  Coal  Co.,  Ltd.,  143  Pa.  293;  Miles 
v.  New  York,  Susquehanna  &  Western  Coal  Co.,  250  Pa. 
147. 

Opinion  by  Mb.  Justice  Moschziskbb,  March  24, 
1919: 

In  1916,  plaintiffs,  claiming  that  certain  coal,  let  by 
their  predecessors  in  title  to  defendant,  had  been  mined 
to  exhaustion  some  time  since,  and,  therefore,  the  tatter's 
lease  was  at  an  end,  filed  a  bill  in  equity  praying  dis- 
covery, an  accounting  of  royalties  and  redelivery  of  the 
property  to  them,  the  plaintiffs.  After  hearing,  the  bill 
was  dismissed,  and  this  appeal  followed. 

The  chancellor  states  that  all  prayers  for  relief,  except 
the  last,  were  abandoned,  "leaving  nothing  but  an  eject- 
ment bill";  but,  he  adds,  "there  was  no  contest  as  to 
jurisdiction,  and  the  trial  proceeded  on  the  merits." 

Among  others,  the  following  material  facts  are  found : 
"Plaintiffs'  predecessors  in  title  were  seized  in  fee,  as 
tenants  in  common,  of  about  forty-two  acres  of  land, 
underlaid  with  coal,  called  the  Lillibridge  tract.     By 


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238  LILLIBRIDGE  et  al.,  Appel.,  v.  LACK.  COAL  CO. 

Opinion  of  the  Court.  [264  Pa. 

indenture  of  March  24, 1883,  the  owners  demised  the  coal 
to  defendant,  with  the  right  to  mine  and  remove  the  same, 
for  the  consideration  and  upon  the  terms  mentioned  be- 
low. Later,  two  of  the  lessors,  who  in  the  meantime  had 
succeeded  to  the  rights  of  their  cotenants,  made  a  sup- 
plemental agreement  with  defendant  whereby  the  terms 
of  the  original  contract  were  modified  in  certain  particu- 
lars; this  was  also  in  form  of  indenture,  dated  February 
4, 1891,  [and  will  be  referred  to  more  at  length  later  in 
this  opinion] .  Defendant  went  into  possession  of  the  de- 
mised premises  under  the  lease,  and  has  been  mining 
there  ever  since,  accounting  for  and  paying  the  royalties 
reserved  in  conformity  with  the  terms  of  the  contract. 

"The  grant  also  included  surface  rights  in  three- 
fourths  of  an  acre  for  the  site  of  an  air  shaft,  subject  to  a 
restriction  as  to  its  location ;  such  site  was  selected,  the 
air  shaft  was  constructed,  and  defendant  is  in  possession 
thereof. 

"The  operative  words  of  the  grant  are  as  follows :  Tor 
and  in  consideration/  etc.,  'have  granted,  demised,  leased 
and  to  mine  let  unto  the  said  party  of  the  second  part, 
its  successors  and  assigns,  all  the  merchantable  coal,  to- 
gether with  the  sole  and  exclusive  right  to  mine  and  re- 
move the  same,  under  the  following  described  tract  or 
piece  of  land/  etc.,  'To  have  and  to  hold  the  coal  in  and 
under  said  land,  unto  the  said  party  of  the  second  part, 
its  successors  and  assigns,  until  the  exhaustion  thereof 
under  the  terms  of  this  indenture';  and  the  covenants 
material  to  the  issue  may  be  summarized  thus :  Defend- 
ants to  enter  upon  the  demised  premises  and  mine  out 
all  the  coal  recoverable  by  energetic  mining;  to  pay  for 
the  same  a  specified  tonnage  royalty;  to  pay  for 
a  minimum  of  15,000  tons  yearly,  beginning  in  1884,  such 
minimum,  however,  to  be  effective  only  so  long  as  due 
prosecution  of  the  work  will  yield  that  quantity;  in  lieu 
of  any  liability  for  surface  injury,  to  leave,  in  pillars  for 
surface  support,  such  reasonable  amount  of  coal  as 
should  be  directed  by  lessors;  and  to  incur  the  penalty 


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LILLIBRIDGE  et  al.,  AppeL,  v.  LACK.  COAL  CO.  239 
1919.]  Opinion  of  the  Court. 

of  forfeiture  for  wilful  default  in  and  about  the  due 
prosecution  of  the  mining  or  the  payment  of  royalties. 
It  is  not  disputed  that  defendant  has  kept  and  performed 
these  covenants. 

"On  part  of  lessors,  there  is  a  covenant  exempting  from 
royalty  the  coal  required  by  defendant  for  making  steam, 
to  an  amount  not  out  of  proportion  to  that  furnished  for 
the  same  purpose  by  other  coal  lands  tributary  to  the  col- 
liery next  hereinafter  mentioned,  which  provision  is  ac- 
counted for  by  the  fact  that  in  defendant's  operation  a 
total  area  of  several  hundred  acres  of  coal  had  been 
united ;  this  had  been  acquired  in  various  parcels,  on  one 
of  which  the  main  hoisting  shaft  and  breaker  were  lo- 
cated, about  a  hundred  feet  distant  from  the  boundary  of 
the  Lillibridge.  The  whole  thing  has  been,  at  all  times, 
operated  as  a  single  colliery ;  while  that  was  apparently 
in  contemplation  of  the  parties  to  the  lease,  the  exigencies 
of  transportation  between  the  different  parcels,  eventual- 
ly led  to  the  modification  of  their  contract  by  the  supple- 
ment of  1891,  before  mentioned. 

"By  the  term  of  this  supplemental  contract,  'the  full 
and  free  right'  was  granted  defendant  to  use  'any  open- 
ings or  gangways  in  any  vein  of  coal  now  opened  or  to 
be  opened  upon'  the  demised  premises,  for  the  transpor- 
tation of  'all  coal  and  minerals  that  lessees  may  mine 
from  any  other  lands  leased,  owned,  or  to  be  leased  or 
owned  by'  lessee,  together  with  the  right  to  construct 
and  lay  tracks  and  to  freely  use  the  same  for  such  trans- 
portation 'through  any  openings  or  gangways  now  op- 
ened or  to  be  opened'  thereon  by  lessee.  This  grant  was 
made  in  consideration  of  an  increased  royalty  and  of  one 
thousand  dollars  in  cash,  both  of  which  were  paid  by  de- 
fendant. Plaintiffs  contend  that  this  right-of-way  must 
be  deemed  to  have  expired  with  the  exhaustion  of  the 
coal  in  the  Lillibridge,  which  is  alleged  to  have  occurred 
as  early  as  1914" ;  while  defendant  contends  it  is  to  last 
as  long  as  any  part  of  the  colliery,  which  requires  the 
free  use  of  the  passageways  contracted  for,  is  being 


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240  LILLIBRIDGE  et  al.,  Appel.,  v.  LACK.  COAL  CO. 

Opinion  of  the  Court.  [264  Pa. 

worked,  and,  further,  that  the  coal  in  the  Lillibridge  has 
not  yet  been  exhausted. 

The  chancellor  finds  that  "the  colliery  is  still  in  full 
operation"  and  that,  in  addition  to  the  pillars  left  by  de- 
fendant, several  small  parcels  of  coal  remain  "in  the 
solid"  yet  to  be  mined  from  plaintiffs'  land ;  these  are  re- 
ferred to  by  name  and  location,  the  chancellor  saying,  as 
to  certain  of  them :  "The  margin  along  the  boundary  ad- 
jacent to  the  shaft  was  left  to  secure  the  safety  of  that 
structure,  and  for  this  reason  is  intended  to  be  left  for 
the  final  operation  of  the  colliery;  when  that  stage  will 
be  reached  is  uncertain,  as  it  depends  wholly  upon  the 
rate  at  which  the  coal  may  be  mined  out  of  the  associate 
parcels.  Both  the  top  split  of  the  New  County  and  the 
Dunmore  are  minable  and  are  intended  to  be  mined; 
the  bottom  split  of  the  New  County  vein  is  thin,  and  the 
only  work  now  in  progress  on  the  Lillibridge  is  prospect- 
ing work  to  determine  whether  this  seam  can  be  mined  to 
any  advantage,  but  there  has  been  no  cessation  of  the  use 
of  the  mine  openings  for  haulage-ways  and  transporta- 
tion between  the  other  parcels  and  the  shaft,  that  user 
continuing  to  be  exercised  in  like  manner  as  it  has  been 
from  the  start." 

Other  findings  appear,  all  reference  to  which  we  omit 
here,  and  shall  do  likewise,  later  in  this  opinion,  when 
summarizing  the  chancellor's  conclusions  of  law;  not 
owing  to  any  disagreement  therewith,  but  because  we 
deem  such  findings  and  conclusions  unessential  to  the 
present  determination  of  this  case. 

The  chancellor  concludes,  on  the  law,  that  defendant 
has  the  right  to  hold  the  leased  property  "until  the  coal 
shall  be  fully  mined  out,"  saying,  "tfcere  is  no  evidence  to 
warrant  a  finding  the  coal  so  leased  has  been  fully  ex- 
hausted, or  of  any  intention  to  abandon  the  remainder" ; 
that  "any  attempt  by  plaintiffs  to  take  out  the  pillars 
would  be  repugnant  to  the  'sole  and  exclusive*  mining 
rights  granted  to  defendant" ;  and,  finally,  "there  is  noth- 
ing either  in  the  subject-matter  or  the  terms  of  the  sup- 


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LILLIBRIDGE  et  al.,  Appel.,  v.  LACK.  COAL  CO.  241 
1919.]  Opinion  of  the  Court, 

plemental  agreement  to  warrant  the  construction  that 
the  use  thereby  granted  was  limited  in  duration  to  the 
life  of  the  mining  in  the  Lillibridge." 

As  to  this  supplemental  agreement  and  plaintiffs' 
rights  thereunder,  the  chancellor  further  states :  "On  its 
face  it  purports  to  grant  a  right-of-way,  so  to  speak,  as  ap- 
purtenant to  the  use  and  enjoyment  of  the  associate  tracts, 
and,  in  the  absence  of  anything  said  to  the  contrary,  the 
presumption  is  that  it  was  to  continue  during  the  life  of 
the  estates  to  which  it  thus  became  attached  as  an  ac- 
cessory. Therefore,  regardless  of  the  stage  of  exhaustion 
of  the  coal  in  the  Lillibridge,  defendant  is  in  lawful  pos- 
session of  all  and  singular  the  mine  openings,  etc.,  there- 
in; it  is  entitled  to  the  free  use  and  enjoyment  thereof 
so  long  as  the  occasion  which  gave  rise  to  the  grant  shall 
continue  to  exist,  and  its  right  in  that  particular  is  ex- 
clusive." To  this  the  chancellor  adds :  "Just  what  rights 
plaintiffs  may  eventually  have  in  any  pillars  which  may 
in  the  end  be  left  in  place,  upon  cessation  of  the  mining 
and  the  abandonment  of  the  operation,  is  a  question  with 
which  this  issue  is  not  presently  concerned,  and  any  at- 
tempt to  decide  it  at  this  time  would  be  premature;  but, 

on  the  facts  as  they  now  appear,  no  present  right 

of possession  is  shown  to  be  in  plaintiffs."    In  all 

of  which  we  concur. 

The  first  six  assignments  of  error  relate  to  rulings  on 
evidence.  No  exceptions  to  these  rulings  were  filed 
after  the  entry  of  the  decree  nisi,  so  that  they  might  be 
passed  upon  by  the  court  in  banc,  as  required  by  Equity 
Rule  64,  which  provides :  "Exceptions  may  then  [after 
the  decree  nisi]  be  filed  by  either  party  within  ten  days, 
which  exceptions  shall  cover  all  objections  to  rulings  on 
evidence,  to  findings  of  fact  or  law,  or  to  the  decree  in  the 
case."  Counsel  for  appellants  do  not  seem  to  place  any 
particular  reliance  upon  these  faulty  assignments;  they 
will  not  be  considered  further. 

The  several  matters  suggested  by  the  other  assign- 
ments are  sufficiently  covered  by  the  copious  excerpts 
Vol.  cclxiv— 16 


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242  LILLIBEIDGB  et  al.,  Appel.,  v.  LACK.  COAL  CO. 

Opinion  of  the  Court.  [264  Pa. 

which  we  have  made  from  the  opinion  of  the  court  below ; 
we  need  add  only  that  an  examination  of  the  notes  of 
testimony  has  not  convinced  us  of  any  substantial  error 
in  the  chancellor's  findings  of  fact,  and  the  legal  con- 
clusions thereon,  hereinbefore  particularly  referred  to, 
are  right  in  every  material  regard.  Finally,  according 
to  the  view  we  take  of  this  case,  as  already  indicated,  no 
new  questions  of  law  are  raised  which  call  for  discussion. 
The  faulty  assignments  are  dismissed,  the  others  are 
overruled,  and  the  decree  is  affirmed  at  cost  of  appellants. 


Thomas,  Appellant,  t\  Connell  et  aL 

Public  officers — Removal — Cause  —  Insubordination  and  disre- 
spect— Discretion — Cities  of  the  second  class — Act  of  May  23,  1907, 
P.  L.  206. 

1.  The  mayor  of  a  city  of  the  second  class,  may  remove  the  in- 
cumbent of  an  office  in  the  competitive  class  of  the  classified  civil 
service,  for  insubordination  and  the  use  of  profane  and  contemp- 
tuous language  in  reference  to  the  mayor,  without  a  hearing  or 
trial,  if  he  has  complied  with  the  provisions  of  Section  20  of  the 
Act  of  May  23, 1907,  P.  L.  206,  by  furnishing  such  incumbent  with 
a  written  statement  of  the  reasons  for  his  action,  and  given  him 
an  opportunity  to  answer  in  writing,  and  has  filed  with  the  civil 
service  commission  copies  of  such  written  statement  and  the  an- 
swer thereto. 

2.  What  constitutes  ample  cause  for  removal  within  the  limits 
fixed  by  the  Act  of  1907,  must  necessarily  be  largely  a  matter  of 
discretion  on  the  part  of  the  head  of  the  department.  To  be  suf- 
ficient, however,  the  cause  should  be  personal  to  the  employee  and 
such  as  to  render  him  unfit  for  the  position  he  occupies,  thus  mak- 
ing his  dismissal  justifiable,  and  for  the  good  of  the  service.  In- 
subordination and  disrespect  towards  a  superior  are  proper  grounds 
for  dismissal. 

Argned  Feb.  24, 1919.  Appeal,  No.  272,  Jan.  T.,  1919, 
by  plaintiff,  from  order  of  C.  P.  Lackawanna  Co.,  March 
T.,  1918,  No.  360,  overruling  demurrer  to  return  to  writ 
of  alternative  mandamus  in  case  of  John  H.  Thomas  v. 


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THOMAS,  Appellant,  v.  CONNELL  et  al.         243 
1019.]  Statement  of  Facts — Opinion  of  the  Court. 

Alex  T.  Connelly  Mayor  and  Arthur  G.  Davis,  Director 
of  Public  Safety  and  the  City  of  Scranton.  Before 
Brown,  C.  J.,  Stewart,  Moschziskbr,  Fbazbr  and  Kep- 
hart,  JJ.   Affirmed. 

Petition  for  writ  of  mandamus. 
The  court  overruled  the  demurrer  to  the  return,  and 
entered  judgment  for  defendant.  Plaintiff  appealed. 

Error  assigned  was  the  order  of  the  court. 

Scragg  &  Scragg  and  A.  A.  Vosburg,  for  appellant. — 
We  contend  that  it  is  a  violation  of  both  the  letter  and 
the  spirit  of  the  statute  for  the  director  of  public  safety 
to  pass  upon  the  charges  without  giving  the  officer 
against  whom  they  are  preferred  an  opportunity  to  be 
heard  in  person  and  by  such  witnesses  as  he  may  desire 
to  call :  Com.  v.  Black,  201  Pa.  433 ;  Field  v.  Com.,  32  Pa. 
478. 

Even  if  there  had  been  a  legal  hearing,  and  the  charges 
sustained,  the  removal  would  be  illegal,  because  the 
charges  are  not  sufficient  to  warrant  such  removal  under 
the  law. 

R.  8.  Houck  and  Jerome  K.  Barrett,  for  appellee. — 
Appellant  was  removed  in  manner  prescribed  by  law: 
Owens  v.  Porter,  22  Pa.  Dist.  Rep.  707;  Com.  ex  rel. 
Earnest  v.  Phila.,  19  Pa.  Dist.  Rep.  615 ;  Chism  v.  Blank- 
enburg,  22  Pa.  Dist.  R.  46;  Truitt  v.  Phila.,  221  Pa.  331; 
Smarr  v.  Phila.,  26  Pa.  Dist.  Rep.  246;  Rosenthal  v. 
Blankenburg,  23  Pa.  Dist.  Rep.  401;  Rush  v.  Phila.,  62 
Pa.  Superior  Ct.  80. 

Appellant  was  removed  for  just  cause:  Truitt  v. 
Phila.,  221  Pa.  331;  Rush  v.  Phila.,  62  Pa.  Superior  Ct. 
80 ;  Neff  v.  City,  23  Pa.  Dist.  Rep.  965. 

Opinion  by  Mr.  Justice  Frazer,  March  24, 1919 : 
In  1914  relator  was  appointed  superintendent  of  the 
Police  and  Fire  Alarm  System  of  the  City  of  Scranton 


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244  THOMAS,  Appellant,  v.  CONNELL  et  al. 

Opinion  of  the  Court.  [264  Pa. 

and  acted  in  that  capacity  until  February  11, 1918.  The 
office  was  in  the  competitive  class  of  the  classified  civil 
service  under  the  provisions  of  the  Act  of  May  23, 1907, 
P.  L.  206,  relating  to  cities  of  the  second  class. 

On  January  30,  1918,  relator  visited  the  office  of  the 
mayor  of  the  city  for  the  purpose  of  obtaining  an  inter- 
view with  that  official,  and,  upon  being  informed  the 
mayor  could  not  see  him  at  that  time,  the  relator  referred 
to  the  chief  executive  in  profane  and  contemptuous  lan- 
guage and  left  the  office.  The  day  following,  the  director 
of  the  Department  of  Public  Safety  issued  an  order  to 
the  employees  of  the  department  to  the  effect  that  after 
twelve  p.  m.  of  that  day  the  fire  and  police  alarm  system 
would  be  in  charge  of  W.  J.  Neone,  and  directed  the 
clerk  of  the  department  to  post  the  order  on  the  bulletin 
board  of  the  police  and  fire  alarm  division.  Relator 
secured  the  order  from  the  clerk,  before  the  latter  had 
posted  it  as  directed,  saying  he  would  personally  see  the 
director  of  public  safety  concerning  the  matter  and,  on 
the  same  day,  returned  the  notice  to  the  director  accom- 
panied by  a  letter  in  which  he  declined  to  recognize  the 
appointee  as  superintendent,  as  he,  relator,  had  not  re- 
signed and  charges  had  not  been  preferred  against  him. 
On  February  4th,  the  director  of  public  safety  advised 
relator,  in  writing,  of  the  charges  against  him,  which 
were  insubordination  in  office,  disrespectful  reference  to 
his  superior  officer,  the  mayor  of  the  city,  and  that  his 
original  appointment  was  invalid.  To  this  letter  relator 
replied  denying  the  charges  of  insubordination  and  dis- 
respect to  his  superior,  and  demanded  a  hearing.  Subse- 
quently, on  February  11,  1918,  the  director  advised  re- 
lator in  writing  that,  having  personally  investigated  the 
charges  against  him  and  found  the  first  and  second  were 
sustained,  relator  was  dismissed  from  the  position  of 
superintendent  of  the  fire  and  police  alarm  system  for 
the  reasons  stated,  and  on  the  same  day  the  director  filed 
with  the  civil  service  commission  copies  of  all  communi- 
cations relating  to  the  matter.    Following  this  action  by 


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THOMAS,  Appellant,  v.  CONNELL  et  aL         245 
1919.]  Opinion  of  the  Court, 

the  director,  the  relator  filed  his  petition  for  a  writ  of 
mandamus,  setting  out  the  above  facts,  and  alleging  that 
neither  hearing  nor  opportunity  to  refute  the  charges 
was  granted  him  and  averring  his  removal  from  office  to 
be  illegal.  A  demurrer  to  the  return  was  overruled  by 
the  court  below  and  judgment  was  entered  for  defendant, 
from  which  relator  appealed. 

Discussion  of  the  validity  of  relator's  original  appoint- 
ment to  office  is  unnecessary  as  we  are  of  opinion  that, 
assuming  his  appointment  was  regular  and  he  was  duly 
qualified  to  exercise  the  rights  and  duties  of  his  office, 
the  action  of  the  court  below  was  proper.  Section  20  of 
the  Act  of  May  23,  1907,  P.  L.  206,  provides  that  no  of- 
ficer or  employee  in  either  the  competitive  or  noncompeti- 
tive class  of  the  classified  civil  service  "shall  be  removed, 
discharged  or  reduced  in  pay  or  position,  except  for  just 
cause,  which  shall  not  be  religious  or  political,"  and 
further  that  no  such  officer  or  employee  shall  be  removed, 
discharged  or  reduced  "until  he  shall  have  been  furnished 
with  a  written  statement  of  the  reasons  for  such  action 
and  been  allowed  to  give  the  removing  officer  such  writ- 
ten answer  as  the  person  sought  to  be  removed  may  de- 
sire. In  every  case  of  such  removal  or  reduction,  a  copy 
of  the  statement  of  reasons  therefor  and  of  the  written 
answers  thereto,  shall  be  furnished  to  the  civil  service 
commission  and  entered  upon  its  records."  The  evident 
purpose  of  the  above  provision  is  to  prevent  the  removal 
of  city  employees  through  improper  motives,  by  making 
the  cause  of  removal  a  matter  of  public  record.  The  act 
contains  neither  express  provision  for  further  proceeding 
or  hearing,  nor  apparent  intention  to  interfere  with  the 
discretion  of  the  head  of  the  department,  so  long  as  the 
cause  of  removal  is  just  and  not  made  for  either  religious 
or  political  reasons.  That  the  director  of  public  safety  fol- 
lowed the  provisions  of  the  Act  of  1907,  requiring  writ- 
ten notice  to  the  employee  of  the  charges  against  him 
with  opportunity  to  the  latter  to  reply,  is  not  denied. 
Relator  merely  contends  he  was  not  given  opportunity 


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246         THOMAS,  Appellant,  v.  CONNELL  et  al. 

Opinion  of  the  Court  [264  Fa. 

to  be  heard  before  his  superior  officer  to  properly  pre- 
sent his  case.  The  record  contains  no  averment  that  re- 
lator made  an  attempt  to  secure  a  hearing  before  the  civil 
service  commission  previous  to  filing  his  petition  for 
mandamus.  On  the  contrary,  he  voluntarily  submitted 
his  claim  to  the  court  by  application  for  the  writ.  No 
adequate  reason  appears  for  holding  that  relator  was 
denied  any  right  under  the  civil  service  act.  What  con- 
stitutes ample  cause  for  removal  within  the  limits  fixed 
by  the  act  must  necessarily  be  largely  a  matter  of  dis- 
cretion on  the  part  of  the  head  of  the  department.  To  be 
sufficient,  however,  the  cause  should  be  personal  to  the 
employee  and  such  as  to  render  him  unfit  for  the  position 
he  occupies,  thus  making  his  dismissal  justifiable  and 
for  the  good  of  the  service :  Truitt  v.  Philadelphia,  221 
Pa.  331,  338.  Insubordination  and  disrespect  toward  a 
superior,  whose  duty  it  is  to  see  that  the  work  of  his  de- 
partment is  carried  on  in  a  proper  manner,  are  matters 
which,  if  permitted  to  pass  unpunished,  tend  to  demoral- 
ize the  public  service,  and  lead  to  general  inefficiency  and 
disloyalty  among  employees :  Truitt  v.  Phila.,  supra,  343. 
We  find  no  cause  for  interfering  with  the  conclusion 
reached  by  the  court  below. 
The  judgment  is  affirmed. 


Commonwealth  v.  Shrope,  Appellant. 

Criminal  law — Murder — Pleading  —  Non  vult  contendere  with- 
drawing plea — Appeal — Act  of  March  SI,  1860. 

1.  The  plea  of  non  vult  contendere  is  never  allowable  in  capital 
cases. 

2.  Where  on  the  trial  of  an  indictment  for  murder,  the  defendant 
pleads  non  vult  contendere,  and  the  court  accepts  the  plea  as  the 
equivalent  of  a  plea  of  guilty*  and  after  examination  of  witnesses 
to  fix  the  degree  of  guilt,  adjudges  the  degree  of  the  guilt  as  "mur- 
der in  the  first  degree"  and  passes  sentence  thereon,  such  conviction 
will  be  set  aside  on  appeal,  and  the  case  will  be  remanded  with  di- 
rection that  the  defendant  have  leave  to  withdraw  his  plea  of  non 


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COMMONWEALTH  v.  SHROPB,  Appellant.       247 

1919.]  Syllabus — Arguments. 

vult  contendere,  and  plead  anew  to  the  indictment,  as  though  such 

plea  had  never  been  entered. 

Argued  March  3, 1919.  Appeal,  No.  258,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  O.  &  T.  Northampton 
Co.,  April  T.,  1918,  No.  72,  finding  defendant  guilty  of 
murder  in  the  first  degree  on  plea  of  non  vult  contendere 
in  case  of  Commonwealth  v.  Charles  M.  Shrope.  Before 
Stbwabt,  Mosohziskbr,  Frazbr,  Walling,  Simpson  and 
Kephart,  JJ.    Reversed. 

Indictment  for  murder.    Before  Stbwabt,  P.  J. 

At  the  trial  the  court  accepted  a  plea  of  non  vult  con- 
tendere, and  after  the  examination  of  witnesses,  fixed  the 
degree  as  of  murder  in  the  first  degree,  and  passed  sen- 
tence thereon.    Defendant  appealed. 

Error  assigned  was  the  judgment  of  the  court 

David  B.  Skillman,  for  appellant. — When  the  court 
accepted  the  plea  non  vult  contendere  in  this  case,  it  was 
at  that  point  precluded  from  finding  the  defendant  guilty 
of  any  degree  of  murder  higher  than  second.  Even  if  the 
plea  be  given  the  same  force  as  a  plea  of  guilty,  the  de- 
fendant, put  to  extremity,  pleaded  guilty  to  murder  of  no 
higher  degree  than  all  murder  is  presumed  to  be,  namely, 
second  degree :  Com.  v.  Drum,  58  Pa.  9 ;  Com.  v.  McMur- 
ray,  198  Pa.  51 ;  Com.  v.  Earner,  199  Pa.  335. 

From  another  angle  the  court  by  accepting  the  plea 
was  precluded  from  finding  the  defendant  guilty  of  any 
degree  of  murder  higher  than  second.  Procedure  of  this 
sort  is  inconsistent  with  the  acceptance  of  the  non  vult 
contendere  plea :  Com.  v.  Holstine,  132  Pa.  357;  Com.  v. 
Ferguson,  44  Pa.  Superior  Ct.  626;  Tucker  v.  United 
States,  196  Fed.  Rep.  260. 

The  plea  non  vult  contendere  was,  in  its  origin,  only 
acceptable  in  cases  where  a  small  fine  was  imposed:  2 
Hawk.,  P.  C.  c.  31,  sec.  3. 


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248        COMMONWEALTH  t>.  SHROPE,  Appellant. 

Arguments — Opinion  of  the  Court.  [264  Pa. 

In  Pennsylvania  it  has  been  extended  to  cases  where 
imprisonment  is  the  punishment:  Com.  v.  Holstine,  132 
Pa.  357;  Com.  v.  Ferguson,  44  Pa.  Superior  Ct.  626. 

But  in  Tucker  v.  United  States,  41  L.  R.  A.  70,  it  is 
held  that  in  the  absence  of  statutory  authority  the  plea 
is  not  acceptable  where  the  sentence  is  imprisonment. 

Frank  P.  McOluskey,  for  appellee. — The  plea  of  nolo 
contendere  is  a  mild  form  of  pleading  guilty :  Buck  v. 
Commonwealth,  107  Pa.  486. 

Opinion  by  Mb.  Justice  Stewart,  March  24, 1919 : 
The  appellant  was  under  indictment  in  the  Oyer  and 
Terminer  Court  of  Northampton  County  charging  him 
with  the  crime  of  murder.  Upon  being  arraigned  he 
pleaded  non  vult  contendere.  This  plea  was  accepted  by 
the  court  on  the  assumption  that  it  was  the  equivalent  of 
a  plea  of  guilty,  and  the  court  thereupon  proceeded  by 
examination  of  witnesses  to  determine  the  degree  of  guilt. 
At  the  conclusion  of  the  examination,  in  open  court,  the 
defendant  and  his  counsel  being  present,  the  court  ad- 
judged and  determined  that  the  degree  of  defendant's 
guilt,  "convicted  by  his  own  conf  ession,"  was  "murder  of 
the  first  degree."  Exceptions  to  the  order  and  findings 
of  the  court  were  dismissed,  and  thereupon  the  appropri- 
ate sentence  of  the  law,  death  by  electrocution,  was  pro- 
nounced upon  and  against  the  defendant.  This  appeal 
followed.  While  there  are  several  assignments  of  error 
we  may  confine  the  discussion  to  a  single  point  raised  by 
the  appeal  from  the  adjudication,  namely,  was  error  com- 
mitted by  the  court  in  accepting  the  plea  of  non  vult  con- 
tendere as  a  plea  of  guilty,  and  proceeding  thereunder  to 
determine  by  examination  of  witnesses  the  degree  of  the 
crime  and  pronouncing  of  sentence  accordingly?  If  this 
was  error,  it  was  of  such  serious  import  that  a  reversal  of 
the  judgment  must  follow  inevitably.  It  is  only  in  cases 
where  a  defendant  charged  with  murder  "shall  be  con- 
victed by  confession,"  that  the  court  shall  proceed  by 


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COMMONWEALTH  v.  SHROPE,  Appellant.        249 
1919.]  Opinion  of  the  Court. 

examination  of  witnesses  to  determine  the  degree  of  guilt 
and  give  sentence  accordingly,  whether  of  the  first  or 
second  degree,  Act  of  31st  March,  1860,  P.  L.  382.  The 
question  immediately  arises,  was  this  appellant  "con- 
victed by  confession"  of  the  crime  of  murder  with  which 
he  stood  charged?  Certain  it  is  that  except  as  the  plea 
of  non  vult  contendere  entered  in  the  case  is  in  its  legal 
acceptation  a  confession  of  guilt,  the  appellant  did  not 
stand  convicted  upon  confession  or  otherwise,  and  the 
proceeding  to  determine  the  degree  of  the  crime  with 
which  he  was  charged  was  extra  judicial  and  determined 
nothing.  That  the  plea  of  non  vult  contendere  is  allow- 
able in  our  jurisdiction,  when  entered  with  the  leave  of 
court,  is  conceded.  Our  reports  contain  a  number  of 
cases  where  it  has  been  allowed,  and  the  recognition  it 
has  received  in  them  is  too  emphatic  to  dispute  its  ad- 
missibility under  certain  conditions;  but  this  court  has 
yet  to  recognize  its  applicability  beyond  cases  involving, 
at  most,  imprisonment  as  the  penalty,  and  in  allowing  it 
to  this  extreme  limit  we  have  extended  it  by  judicial  con- 
struction beyond  the  purpose  for  which  it  was  originally 
intended  and  designed,  which  was  simply  to  enable  one 
charged  with  a  misdemeanor  to  commute  the  penalty  af- 
fixed by  the  payment  of  a  fine.  It  is  a  stranger  to  our 
statutes,  known  only  to  our  common  law  as  imported  and 
adopted  by  us  by  Statute  of  28th  January,  1777.  Under 
the  common  law  as  it  stood  at  that  period  the  plea  when 
allowed  was  at  most  an  implied  confession  of  guilty,  but 
only  in  cases  less  than  capital.  The  rule  is  thus  stated 
by  Hawkins  in  Pleas  of  the  Crown,  Vol.  2,  8th  Eng.  Ed. 
p.  466 — "An  implied  confession  is  where  a  defendant,  in 
a  case  not  capital,  doth  not  directly  own  himself  guilty, 
but  in  a  manner  admits  it  by  yielding  to  the  king's  mercy, 
and  desiring  to  submit  to  a  small  fine :  in  which  case,  if 

the  court  think  fit  to  accept  of  such  submission the 

defendant  shall  not  be  estopped  to  plead  not  guilty  to 
an  action  for  the  same  fact,"  etc.  In  Chitty's  Criminal 
Law,  4th  Amer.  Ed.  from  2d  London  Ed.  *431,  the  rule  is 


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250        COMMONWEALTH  v.  SHROPE,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

thus  stated — "An  implied  confession  is  where,  in  a  case 
not  capital,  a  defendant  does  not  directly  own  himself  to 
be  guilty,  but  tacitly  admits  it  by  throwing  himself  on 
the  king's  mercy,  and  desiring  to  submit  to  a  small  fine, 
which  the  court  may  either  accept  or  decline,  as  they 
think  proper.  If  they  grant  the  request,  an  entry  is  made 
to  this  effect,  that  the  defendant  non  vult  contendere  cum 
domina  regina  et  posuit  se  in  gratiam  curiae."  So  far 
as  we  can  learn  the  plea  was  never  regarded  as  more  than 
an  implied  admission  of  guilt,  either  in  England  or 
in  this  country,  unless  in  states,  of  which  Massachusetts 
is  an  example,  where  it  is  made  the  subject  of  statutory 
regulations.  But  the  express  point  we  wish  to  enforce 
is  that  neither  in  England  nor  in  this  country  has  the 
plea  ever  been  allowable  in  capital  cases.  A  distin- 
guished American  author,  Mr.  Bishop,  in  his  New  Crim- 
inal Procedure,  2d  Ed.,  Section  802,  has  this  to  say  in 
regard  to  it — "It  is  pleadable  only  by  leave  of  court,  and 
in  light  misdemeanors."  The  reason  for  this  limitation 
becomes  apparent  when  we  consider  the  extreme  penalty 
that  follows  a  conviction  in  what  we  call  capital  cases. 
The  law  is  scrupulous  to  a  degree  in  such  cases  to  throw 
about  the  accused  every  reasonable  protection,  and  re- 
quires that  before  conviction  his  guilt  must  be  estab- 
lished by  evidence  which  excludes  all  reasonable  doubt. 
An  implied  confession  of  guilt  cannot  rise  to  the  degree 
of  certainty  which  would  make  it  the  equivalent  of  an 
express  confession.  In  State  v.  La  Rose,  71  N.  H.  435, 
it  is  said — ''The  plea  is  in  the  nature  of  a  compromise  be- 
tween the  state  and  the  defendant — a  matter  not  of  right, 
but  of  favor.  Various  reasons  may  exist  why  a  defend- 
ant conscious  of  innocence  may  be  willing  to  forego  his 
right  to  make  defense  if  he  can  be  permitted  to  do  so 
without  acknowledging  his  guilt.  Whether  in  a  particu- 
lar case  he  should  be  permitted  to  do  so,  is  for  the  court." 
In  Doughty  v.  DeAmoreel,  22  R.  1. 158,  referring  to  the 
plea  of  non  vult,  this  is  said — "Doubtless  it  is  often  used 
as  a  substitute  for  a  plea  of  guilty,  but  it  simply  says 


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COMMONWEALTH  t>.  SHROPE,  Appellant.       251 
1919.]  Opinion  of  the  Court, 

that  the  defendant  will  not  contend.  This  is  not  a  con- 
fession of  guilt,  because  an  accused  person  might  find 
himself  without  witnesses  to  establish  his  innocence, 
from  their  death,  absence,  or  other  cause,  and  hence 
waive  a  fruitless  contest."  A  very  instructive  discussion 
of  the  origin  and  limitations  of  the  rule  we  are  consider- 
ing may  be  found  in  the  case  of  Tucker  v.  United  States, 
as  reported  in  L.  R.  A.  41,  N.  S.  p.  70.  The  authorities 
we  have  cited  are  there  reviewed  along  with  others,  and 
the  conclusions  reached  therefrom  are  thus  stated — ''The 
allowance  of  the  'implied  confession'  as  a  nolo  contendere 
plea,  thus  defined  to  be  the  defendant's  yielding  to  mercy 
in  the  punishment,  'and  desiring  to  submit  to  a  small 
fine,'  necessarily  implies,  as  we  believe,  that  the  case  for 
such  allowance  must  be  within  the  class  of  misdemeanors 
for  which  punishment  may  be  imposed  by  fine  alone,  al- 
though the  offense  may  as  well  be  punished  by  imprison- 
ment, at  the  discretion  of  the  court,  either  as  an  alterna- 
tive of  fine,  or  in  addition  thereto,  or  to  enforce  payment 
of  the  fine.  That  such  desire  (or  request,  express  or  im- 
plied) on  the  part  of  the  accused  'to  submit  to  a  small 
fine'  can  neither  serve  to  limit  the  fine  to  the  minimum 
prescribed  for  the  offense,  nor  constitute  the  measure  of 
fine  which  may  be  imposed  within  the  exercise  of  judicial 
discretion, — that  'a  small  fine'  is  thus  mentioned  in  the 
rule  as  a  relative  term,  intending  substantially  less  than 
the  maximum, — we  have  no  doubt.  This  provision,  how- 
ever, for  such  purpose  in  the  submission,  as  the  object 
sought  by  the  defendant  in  electing  to  submit  without 
contest,  requires  construction  of  the  rule  accordingly,  as 
limited  to  cases  consistent  with  the  purpose  thus  de- 
clared. So  defined,  the  rule  affords  no  ground  for  enter- 
taining the  plea,  either  in  cases  of  felony,  requiring  in- 
famous punishment  to  be  imposed  on  conviction,  or  in 
cases  of  misdemeanor,  for  which  the  punishment  must  be 
imprisonment  for  any  term,  with  or  without  a  fine.  Con- 
strained to  this  interpretation  of  the  narrow  purpose 
and  use  of  the  plea  at  common  law,  by  the  express  pro- 


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252        COMMONWEALTH  v.  SHROPE,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

visions  of  the  rule  thus  handed  down,  we  believe  exten- 
sion of  the  allowance  to  include  even  misdemeanors  for 
which  imprisonment  must  be  imposed  is  unauthorized, — 
however  desirable  it  may  seem, — without  statutory  pro- 
vision therefor." 

In  the  opinion  filed  by  the  learned  president  judge  in 
the  present  case  he  cites  as  sustaining  his  view  that  the 
plea  of  non  vult  contendere  is  the  same  as  the  plea  of 
guilty,  from  our  own  authorities,  the  cases  of  Buck  v. 
Com.,  107  Pa.  486;  Commonwealth  v.  Holstine,  132  Pa. 
357,  and  Com.  ex  rel.  v.  Jackson,  248  Pa.  530.  Our  pur- 
pose has  been  to  show  that  such  plea  is  not  admissible  in 
capital  cases,  not  disputing  its  applicability  when  the 
offense  charged  is  of  low  grade.  In  the  first  of  these  cases 
the  question  was  whether  the  plea  of  nolo  contendere  by 
the  principal  (no  judgment  or  sentence  having  been  im- 
posed) was  admissible  in  evidence  on  the  trial  of  one 
charged  as  an  accessory.  It  was  held  inadmissible  be- 
cause, even  though  the  equivalent  of  a  confession  by  the 
principal,  it  was  as  to  the  accessory  res  inter  alias  acta, 
and  that  the  confession  by  the  principal  is  not  admissible 
upon  the  trial  of  the  accessory  to  prove  the  guilt  of  the 
principal.  The  crime  there  charged  was  robbery.  We 
have  found  no  case  in  Pennsylvania,  nor  has  our  atten- 
tion been  directed  to  any,  where  the  plea  was  held  avail- 
able in  cases  where  the  charge  was  robbery  or  other  crime 
of  like  magnitude.  The  case  cited  does  not  rule  the 
point,  and  no  warrant  can  be  found  in  it  for  the  conclu- 
sion reached  by  the  president  judge  in  this.  In  the  case 
of  Commonwealth  v.  Holstine,  next  cited,  the  plea  was 
admitted  where  the  offense  charged  was  unlawful  sales 
of  intoxicating  liquor.  And  it  was  there  held  on  the  au- 
thority of  Buck  v.  Commonwealth,  supra,  that  the  plea 
"though  not  technically  a  plea  of  guilty,  is  so  substan- 
tially and  justifies  the  court  in  imposing  sentence."  The 
other  of  the  cases  arose  on  a  suggestion  for  a  writ  quo 
warranto  which  alleged  that  the  defendants  who  were 
school  directors  had  been  separately  indicted  charged 


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COMMONWEALTH  v.  SHEOPB,  Appellant.       253 
1919.]  Opinion  of  the  Court 

with  soliciting  and  accepting  a  bribe  to  influence  their 
votes  in  their  capacity  as  such  officers ;  that  they  had  each 
entered  a  plea  of  nolo  contendere  and  that  judgment  had 
been  entered  against  them.  It  was  there  held  that  the 
plea  precluded  defendants  from  averring  in  quo  warranto 
proceedings  that  they  had  not  been  convicted  of  the  of- 
fense charged.  As  will  be  seen  neither  of  these  cases  af- 
fords any  ground  whatever  for  the  contention  that  the 
plea  is  available  to  one  charged  with  a  capital  offense. 
We  may  add  that  in  our  examination  of  the  subject  we 
have  discovered  none  here  or  in  other  jurisdictions,  nor 
has  our  attention  been  directed  to  any,  which  support 
any  such  view.  In  the  very  copious  annotations  to 
the  case  of  Tucker  v.  United  States,  supra,  L.  R.  A.,  the 
editor's  research  has  discovered  no  case  in  which  the 
plea  has  been  admitted  where  the  offense  charged  was  of 
higher  grade  than  statutory  felony,  the  large  majority 
of  those  cited  being  where  simple  misdemeanors  were 
charged.  Certainly  there  can  be  no  reason  for  extending 
its  applicability  to  the  higher  crimes,  and  it  may  well  be 
doubted  at  this  day,  in  view  of  the  significance  given  it 
by  our  own  adjudications,  when  used  within  narrow 
limits,  whether  even  as  to  these  it  has  longer  any  proper 
purpose  to  serve ;  for  if  as  to  these  it  be  the  equivalent  of 
a  plea,of  guilty,  as  said  in  several  of  our  cases  where  mis- 
demeanors were  charged,  the  distinction  between  the  two 
is  a  distinction  without  a  difference  and  not  worth  pre- 
serving. However  this  may  be,  we  decide  nothing  here 
with  respect  to  its  use  except  that  it  is  not  a  plea  allow- 
able in  a  capital  case.  It  follows  that  the  first  assign- 
ment of  error  must  be  sustained. 

The  judgment  accordingly  is  reversed,  and  the  record 
is  remanded  with  direction  that  appellant  have  leave  to 
withdraw  his  plea  of  non  vult  contendere  formerly  plead- 
ed and  plead  anew  to  the  indictment  as  though  such  plea 
had  never  been  entered. 


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254  GRIFFIN  et  al.  v.  METAL  PRODUCT  CO.,  AppeL 

Syllabus— Assignment  of  Errors.  [264  Pa. 

Griffin  et  al.  v.  Metal  Product  Company,  Appellant. 

Sales — Trade  name — Custom — Warranty — Inspection — Damages 
—Expenses— Act  of  May  19, 1915,  P.  L.  543. 

1.  A  trade  name  within  the  provisions  of  the  Sales  Act  of  May 
19,  1915,  P.  L.  643,  is  a  name  given  by  a  manufacturer  to  the  par- 
ticular product  made  by  him.  The  generic  name  of  an  article 
manufactured  by  a  number  of  people  is  not  a  trade  name  within 
that  act. 

2.  If  one  party  is  allowed  to  offer  proof  of  an  alleged  custom  the 
other  must  be  permitted  to  produce  evidence  to  the  contrary. 

3.  Where  goods  are  sold  f.  o.  b.  a  distant  point  without  inspec- 
tion, and  the  purpose  for  which  they  were  purchased  was  made 
known  to  the  seller,  there  is  an  implied  warranty  of  quality  under 
the  Sales  Act,  unless  the  other  facts  in  the  case  show  that  no  such 
warranty  was  intended. 

4.  In  cases  of  breach  of  warranty  of  quality  of  an  article  pur- 
chased for  a  known  purpose  of  manufacture,  expenses  incurred  in 
good  faith  in  endeavoring  to  use  the  article  for  that  purpose,  are 
recoverable  under  the  Sales  Act  if  not  too  remote. 

Reargued  March  3, 1919.  Appeal,  No.  125,  Oct.  T.,  1918, 
by  defendant,  from  judgment  of  C.  P.  Beaver  Co.,  June 
T.,  1917,  No.  15,  on  verdict  for  plaintiffs  in  case  of  Joseph 
E.  Griffin  et  al.,  trading  as  Eeliance  Steel  &  Tool  Co., 
now  for  use  of  Reliance  Steel  &  Tool  Co.,  Incorporated,  v. 
Metal  Products  Company.  Before  Brown,  C.  J.,  Stew- 
art, Moschzisker,  Frazer,  Walling,  Simpson  and  Kbp- 
hart,  JJ.    Reversed. 

Assumpsit  for  goods  sold  and  delivered.  Before  Bald- 
win, P.  J. 

Verdict  and  judgment  for  plaintiff  for  $1,782.13.  De- 
fendant appealed. 

Errors  assigned  were  rulings  on  evidence,  quoting  the 
bill  of  exceptions,  and  various  instructions. 


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GRIFFIN  et  aL  v.  METAL  PRODUCT  CO.,  AppeL  255 
1919.]  Arguments— Opinion  of  the  Court. 

Wm.  A.  McGonnell,  for  appellant. — The  court's  inter- 
pretation of  this  act  deprives  the  defendant  of  a  substan- 
tial right  which,  it  seems  to  us,  he  is  entitled  to,  and  he 
has  suffered  a  loss  for  which  he  has  no  remedy  against 
the  plaintiffs.  This  ought  not  to  be  allowed,  especially  in 
view  of  the  fact  that  defendants  had  this  right  before  the 
passage  of  this  act :  Hunt  v.  Gilmore,  59  Pa.  450 ;  Nixon 
v.  McCrory,  101  Pa.  289. 

The  law  fixes  the  rights  and  liabilities  of  the  parties 
and  there  can  be  no  custom  contrary  to  the  law :  Coxe  v. 
Heisley,  19  Pa.  243. 

A  custom  to  affect  the  rights  of  parties  must  be  an- 
cient, uniform  and  notorious:  Coxe  v.  Heisley,  19  Pa. 
243 ;  Adams  v.  Pittsburgh  Insurance  Co.,  95  Pa.  348,  and 
the  same  case  reported  in  76  Pa.  411. 

A  "trade  name"  is  a  name  used  to  indicate  the  personal 
origin  or  source  of  the  article  to  which  it  is  applied,  and 
then  to  identify  such  article  and  distinguish  it  in  the 
market  from  other  articles  of  a  similar  nature :  Laugh- 
man's  App.,  128  Pa.  1. 

High-speed  steel  is  no  trade  name  but  a  general  des- 
ignation of  steel  which  has  certain  qualities  which  we 
contend  and  showed  the  steel  sold  to  the  defendant  did 
not  have. 

Frank  E.  Reader,  with  him  W.  S.  Moore,  for  appellee. 

Opinion  by  Mr.  Justice  Simpson,  March  24, 1919 : 
Defendant,  a  manufacturer  of  Pittsburgh,  Pa.,  pur- 
chased from  plaintiffs,  who  were  in  business  in  New  Yoik 
City,  certain  high-speed  steel,  f .  o.  b.  the  shipping  point 
in  New  York.  Defendant  alleges  that  when  the  steel  ar- 
rived it  appeared  to  be  in  good  condition,  fit  for  making 
tools  therefrom,  for  which  purpose  plaintiffs  knew  it  was 
purchased,  but  after  expenses  had  been  incurred  in  en- 
deavoring to  make  the  tools,  it  was  found  to  be  unfit 
therefor,  or  for  any  other  manufacturing  purpose,  and 
only  valuable  as  scrap  steel.    The  verdict  was  for  plain- 


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256  GRIFFIN  et  aL  v.  METAL  PRODUCT  CO.,  AppeL 

Opinion  of  the  Court.  [264  Pa. 

tiffs  for  the  full  amount  of  their  claim,  judgment  was 
entered  thereon,  and  defendant  appeals. 

At  the  trial  no  question  was  raised  as  to  the  quantity 
of  steel  shipped  to  and  received  by  defendant,  as  to  the 
prices  to  be  paid  for  it,  or  as  to  the  credits  to  be  allowed ; 
and  it  was  admitted  plaintiffs  knew  the  purpose  for 
which  it  was  purchased.  The  dispute  centered  around 
three  matters :  Was  the  steel  of  a  quality  reasonably  fit 
for  the  making  of  tools?  Was  there  an  express  war- 
ranty it  should  be?  and  was  there  an  implied  warranty 
it  should  be  reasonably  fit  for  the  purpose  because  of 
plaintiffs'  knowledge  of  the  purpose  for  which  it  was  pur- 
chased? As  to  the  first  and  second  of  those  questions  no 
difficulty  arises,  the  evidence  was  ample  to  submit  to  the 
jury,  and  the  charge  of  the  court  below  in  regard  thereto 
is  unobjectionable.  The  rulings  on  the  third,  however, 
constitute  serious  error. 

As  the  steel  was  to  be  delivered  f .  o.  b.  the  shipping  point 
in  New  York  the  contract  was  a  New  York  contract,  to 
be  interpreted  according  to  the  law  of  that  state,  which, 
on  this  matter,  is  the  same  as  our  own,  owing  to  the  adop- 
tion by  each  state  of  the  uniform  Sales  Act.  The  para- 
graphs thereof  that  need  be  considered  are  the  following, 
numbered  according  to  the  Pennsylvania  Act  of  May  19, 
1915,  P.  L.  543: 

"Section  15 First.    Where  a  buyer,  expressly  or 

by  implication,  makes  known  to  the  seller  the  particular 
purpose  for  which  the  goods  are  required,  and  it  appears 
that  the  buyer  relies  on  the  seller's  skill  or  judgment 
(whether  he  be  the  grower  or  manufacturer  or  not), 
there  is  an  implied  warranty  that  the  goods  shall  be 
reasonably  fit  for  such  purpose." 

"Fourth.  In  the  case  of  a  contract  to  sell,  or  a  sale  of 
a  specified  article  under  its  patent  or  other  trade  name, 
there  is  no  implied  warranty  as  to  its  fitness  for  any  par- 
ticular purpose." 

"Section  69.  First.  Where  there  is  a  breach  of  war- 
ranty by  the  seller,  the  buyer  may,  at  his  election, — 


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GRIFFIN  et  aL  v.  METAL  PRODUCT  CO.,  Appel.  257 
1919.]  Opinion  of  the  Court. 

"(a)  Accept  or  keep  the  goods,  and  set  up  against  the 
seller  the  breach  of  warranty  by  way  of  recoupment  in 
diminution  or  extinction  of  the  price." 

"Sixth.  The  measure  of  damages  for  breach  of  war-  ; 
ranty  is  the  loss  directly  and  naturally  resulting,  in  the 
ordinary  course  of  events,  from  the  breach  of  warranty. 

"Seventh.  In  the  case  of  a  breach  of  warranty  of  quali- 
ty, such  loss,  in  the  absence  of  special  circumstances 
showing  proximate  damage  of  a  greater  amount,  is  the 
difference  between  the  value  of  the  goods  at  the  time  of 
delivery  to  the  buyer  and  the  value  they  would  have  had 
if  they  had  answered  to  the  warranty." 

Much  of  the  difficulty  in  the  case  arose  from  the  erro- 
neous conclusion  of  the  trial  judge  that  "high-speed  steel" 
is  a  trade  name  under  section  15,  clause  fourth,  above 
quoted.  In  his  charge  he  said :  "It  seems  clear  to  the 
court  that  high-speed  steel  is  a  trade  name  indicating 
a  particular  kind  of  steel" ;  but  he  submitted  the  ques- 
tion to  the  jury,  telling  them  if  they  found  it  was  a  trade 
name  there  was  no  implied  warranty  and  plaintiffs  were 
entitled  to  their  verdict.  In  his  able  argument  in  this 
court,  plaintiffs'  counsel  admitted  there  was  no  evidence 
justifying  the  submission  of  that  question.  There  was 
evidence  as  to  what  constituted  high-speed  steel,  and 
that  each  manufacturer  thereof  had  a  separate  and  dis- 
tinct trade  name  for  the  particular  high-speed  steel 
manufactured  by  him ;  but  beyond  this  the  evidence  did 
not  go. 

Plaintiffs  were  permitted  to  produce  evidence  of  an  al- 
leged general  custom  in  the  trade, — contradicting  the 
provisions  of  the  Sales  Act  above  quoted, — to  the  effect 
that  if  a  buyer  discovers  defects  in  high-speed  steel,  his 
only  right  is  to  return  it  and  receive  credit  for  the  con- 
tract price.  When,  however,  defendant  asked  a  witness, 
who  had  many  years9  acquaintance  with  the  business  and 
its  customs,  whether  or  not  he  had  ever  heard  of  such  a 
custom,  the  evidence  was  objected  to  and  overruled.  To 
each  of  these  rulings  defendant  excepted,  and  each  is  as- 
Voii.  OCLXIV— 17 

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258  GRIFFIN  et  al.  v.  METAL  PRODUCT  CO.,  AppeL 

Opinion  of  the  Court  [264  Pa. 

signed  as  error.  Plaintiffs,  recognising  the  fact  that  one 
or  the  other  must  be  erroneous,  now  claim  the  proof  of- 
fered by  them  was  rather  of  a  practice  in  the  business 
than  of  a  custom  or  usage  thereof.  This,  however,  would 
not  relieve  the  error,  and  moreover  would  transfer  it  only 
from  the  refusal  to  admit  defendant's  evidence  to  the  ad- 
mission of  plaintiffs9.  From  the  latter  the  jury  might 
have  concluded,  and  for  all  we  know  did  conclude,  that 
under  the  alleged  custom  defendant's  only  right  was  to 
return  the  steel,  and,  not  having  done  so,  could  not  re- 
coup the  loss  by  reason  of  its  defects. 

It  was  also  error  to  refuse  to  permit  defendant  to  show 
the  expenses  incurred  in  the  endeavor  to  make  tools  from 
the  steel,  before  it  discovered  the  impossibility  of  so  do- 
ing. The  inquiry  was  shut  off  at  the  beginning,  for  the 
witness  was  not  even  allowed  to  state  whether  he  knew 
what  the  expenses  were.  The  objection  to  the  evidence 
is  founded  on  section  69,  clauses  sixth  and  seventh  above 
quoted,  which  says  a  buyer  is  entitled  to  set  off  only  "the 
loss  directly  and  naturally  resulting  in  the  ordinary 
course  of  events,"  which,  "in  the  absence  of  special  cir- 
cumstances showing  proximate  damage  of  a  greater 
amount,  is  the  difference"  between  the  value  of  the  steel 
as  it  was  and  as  it  would  have  been  had  it  "answered  to 
the  warranty."  It  is  difficult  to  understand  what  loss 
could  more  directly  and  naturally  result,  in  the  ordinary 
course  of  events,  than  the  initial  expenses  incurred  in 
using  the  steel,  when  the  defects  in  it  were  not  otherwise 
discoverable.  What  those  expenses  were,  and  whether  or 
not  any  of  them  were  too  remote,  is  not  disclosed,  because 
no  inquiry  into  the  matter  was  permitted.  When  the  evi- 
dence is  in,  or  is  specifically  offered,  the  court  can  de- 
termine the  question  of  remoteness,  which,  after  all,  is 
generally  one  of  degree.  That  such  expenses  are  allow- 
able if  not  too  remote,  has  often  been  decided  both  before 
and  since  the  passage  of  the  Sales  Act:  Williston  on 
Sales,  Sec.  614. 


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GRIFFIN  et  aL  v.  METAL  PRODUCT  CO.,  AppeL  259 
1919.]  Opinion  of  the  Court. 

In  the  first  argument  in  this  court,  plaintiffs'  counsel 
claimed  the  judgment  should  not  be  reversed,  notwith- 
standing the  errors  above  set  forth,  because  the  evidence 
was  insufficient  to  justify  the  jury  in  finding  an  implied 
warranty.  The  basis  of  this  contention  was  that  under 
section  15,  clause  first,  above  quoted,  there  would  have  to 
be  express  notice  to  the  seller  of  an  intention  to  rely  on  his 
skill  and  judgment  before  the  implied  warranty  could 
arise.  When,  however,  the  case  was  heard  on  a  reargu- 
ment  ordered  upon  this  specific  ground,  he  frankly  ad- 
mitted there  was  "evidence  from  which  an  implied  war- 
ranty could  be  found  under  the  provisions  of  the  Sales 
Act."  This  was  the  opinion  of  the  trial  judge,  and  we 
think  it  is  correct.  Before  the  passage  of  the  act,  it  had 
been  repeatedly  so  held,  so  far  as  relates  to  the  grower  # 
or  manufacturer  of  the  goods  sold,  and  the  only  change 
made  thereby  was  to  extend  the  rule  to  every  seller 
"whether  he  be  the  grower  or  manufacturer  or  not." 

In  Kellogg  Bridge  Company  v.  Hamilton,  110  U.  S. 
108,  it  is  said :  "When,  therefore,  the  buyer  has  no  op- 
portunity to  inspect  the  article,  or  when,  from  the  situ- 
ation, inspection  is  impracticable  or  useless,  it  is  un- 
reasonable to  suppose  that  he  bought  on  his  own  judg- 
ment, or  that  he  did  not  rely  on  the  judgment  of  the 
seller  as  to  latent  defects  of  which  the  latter,  if  he  used 
due  care,  must  have  been  informed  during  the  process  of 
manufacture.  If  the  buyer  relied,  and  under  the  circum- 
stances had  reason  to  rely,  on  the  judgment  of  the  seller, 
who  was  the  manufacturer  or  maker  of  the  article,  the 
law  implies  a  warranty  that  it  is  reasonably  fit  for  the 
use  for  which  it  was  designed,  the  seller  at  the  time 
being  informed  of  the  purpose  to  devote  it  to  that  use." 

In  substance,  we  also  so  held  in  Erie  City  Iron  Works 
v.  Barber,  106  Pa.  125 ;  and  in  American  Home  Savings 
Bank  v.  Guardian  Trust  Company,  210  Pa.  320. 

The  judgment  of  the  court  below  is  reversed,  and  a 
venire  facias  de  novo  awarded. 


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260      BLACK  et  al.  v.  AMERICAN  I.  C,  Appellant. 

Syllabus— Statement  of  Facts.  [264  Pa. 


Black  et  al.  v.  American  International  Corpora- 
tion, Appellant 

Waters — Rivers — Riparian  owners  —  Low  water  mark — Bound- 
aries— A  ccretions. 

1.  Below  ordinary  low  water  mark  of  a  navigable  river  the  owner- 
ship of  the  soil  is  in  the  Commonwealth. 

2.  The  title  of  an  abutting  riparian  owner  on  a  navigable  river 
extends  only  to  ordinary  low  water  mark,  subject  to  the  rights  of 
navigation,  fishery  and  improvement  of  the  river  between  ordinary 
high  and  low  water  marks. 

3.  An  abutting  riparian  owner  on  a  navigable  river  has  no  right 
to  fill  in  or  obstruct  the  river  between  ordinary  high  and  low  water 
marks  without  express  authority  from  the  Commonwealth. 

4.  An  abutting  riparian  owner  on  a  navigable  river  becomes  the 
owner  of  the  natural  accretions  to  his  land,  resulting  from  the  im- 
perceptible deposits  of  alluvion  along  his  riparian  front,  but  he 
does  not  become  the  owner  of  land  formed  by  the  deposit  of  material 
on  the  river  bottom  either  by  him  or  with  his  knowledge  or  consent. 

Vendor  and  vendee— Action  for  purchase  money — Equity — TUle 
— Hazard  of  litigation. 

5.  An  action  for  the  purchase  money  of  land  is  in  effect  a  petition 
or  bill  for  specific  performance  of  the  contract  of  purchase,  and  is 
governed  by  the  same  equitable  principles. 

6.  Neither  by  petition,  bill  nor  action  to  recover  purchase  money, 
can  a  vendee  be  required  to  take  a  title  which  invites  or  exposes 
him  to  the  hazard  of  litigation  with  an  adverse  claimant,  even 
though  upon  the  evidence  produced  the  court  cannot  say  the  adverse 
claimant  has  a  good  title. 

Argued  March  4, 1919.  Appeal,  No.  199,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  5,  Philadel- 
phia Co.,  Sept.  T.,  1917,  No.  3445,  for  plaintiff  on  case 
tried  by  the  court  without  a  jury  in  suit  of  Charles  N. 
Black  and  Francis  H.  Bohlen  v.  American  International 
Corporation.  Before  Beown,  C.  J.,  Stewart,  Mosch- 
ziskeb,  Frazbb,  Walling,  Simpson  and  Kephart,  JJ. 
Reversed. 


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BLACK  et  aL  v.  AMERICAN  I.  C,  Appellant.  261 
1919.]  Statement  of  Facta— Opinion  of  the  Court. 

Assumpsit  for  purchase  money  of  real  estate.  Before 
Martin,  P.  J.,  without  a  jury. 

The  court  entered  judgment  for  plaintiffs  for  $27,500. 
Defendant  appealed. 

Error  assigned  was  in  entering  judgment  for  plain- 
tiff. 

Thomas  Raebum  White,  for  appellant. — Land  formed 
by  alluvion,  or  the  gradual  and  imperceptible  accretion 
from  the  water,  and  land  gained  by  reliction  or  the 
gradual  and  imperceptible  recession  of  the  water,  be- 
longs to  the  owner  of  the  contiguous  land  to  which  the 
addition  is  made :  Freeland  v.  Penna.  B.  B.  Co.,  197  Pa. 
529;  Phila.  v.  Stimson,  223  U.  S.  605;  Jeffries  v.  East 
Omaha  Land  Co.,  134  IT.  S.  178. 

Robert  T.  McOracken,  with  him  Roberts,  Montgomery 
&  McKeehan,  for  appellee. — The  common  law  doctrine  is 
that  one  who  owns  land  bounded  by  a  navigable  stream 
is  entitled  to  the  benefit  of  any  growth  of  his  land  by 
gradual  or  imperceptible  accretions  or  recession  of  the 
water  just  as,  on  the  other  hand,  he  has  no  right  of  action 
for  loss  of  such  land  by  a  covering  of  the  same  through  a 
rise  in  the  water  or  washing  away  of  the  shore :  Freeland 
v.  Penna.  B.  B.  Co.,  197  Pa.  529;  Houseman  v.  Inter- 
national Nav.  Co.,  214  Pa.  552;  Philadelphia  Co.  v. 
Stimson,  223  U.  S.  605. 

The  fact  that  there  may  have  been  some  artificial  con- 
tribution to  the  formation  of  appellees'  land  does  not 
affect  the  title. 

Prichard,  Saul,  Bayard  &  Evans,  Nicholas  H.  Lar- 
zelere,  W.  Roger  Fronefield,  Clarence  W.  DeKnight  and 
Ralph  J.  Baker,  for  Frank  M.  Zeller. 

Opinion  by  Mb.  Justice  Simpson,  March  24, 1919 : 
Plaintiffs  sued  to  recover  from  defendant  the  sum  of 
$27,500,  being  the  purchase  price  of  54  91-100  acres  of 


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262      BLACK  et  aL  v.  AMERICAN  I.  C,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

land,  now  forming  part  of  Hog  Island,  in  the  Delaware 
river.  By  agreement  of  the  parties,  a  jury  trial  was 
waived,  the  case  was  tried  by  the  court,  exceptions  to  the 
findings  of  fact  and  law  were  dismissed,  judgment  en- 
tered for  plaintiffs,  and  this  appeal  taken. 

The  Delaware  river  is  a  public  navigable  river :  Mc- 
Keen  v.  Delaware  Division  Canal  Co.,  49  Pa.  424;  Bun- 
dle v.  Delaware  &  Raritan  Canal  Co.,  14  How.  80; 
specifically  declared  by  the  Acts  of  March  9, 1771, 1  Sm. 
Laws  322,  and  September  20,  1783,  2  Sm.  Laws  77,  to 
be  a  "common  highway  for  the  purposes  of  navigation." 
By  the  Act  of  September  25, 1786,  2  Sm.  Laws  388,  Hog 
Island  was  made  part  of  the  then  County  of  Chester, 
and  by  the  Act  of  September  26, 1789,  2  Sm.  Laws  499, 
it  passed  to  and  became  a  part  of  the  County  of  Dela- 
ware, when  the  latter  county  was  created  from  a  portion 
of  the  former. 

Below  its  ordinary  low  water  the  ownership  of  the  soil 
under  the  river  is  in  the  Commonwealth,  the  title  of  the 
abutting  riparian  owner  extending  only  to  ordinary  low 
water  mark,  subject  to  the  rights  of  navigation,  fishery, 
and  improvement  of  the  stream  between  high  and  low 
water  marks :  Carson  v.  Blazer,  2  Binney  475;  Flanagan 
v.  Philadelphia,  42  Pa.  219;  Poor  v.  McClure,  77  Pa.  214, 
219;  Pursell  v.  Stover,  110  Pa.  43;  Palmer  v.  Farrell, 
129  Pa.  162;  Freeland  v.  Penna.  K.  K.  Company,  197  Pa. 
529.  For  this  reason  the  riparian  owner  has  no  right  to 
fill  the  river  even  to  low  water  mark :  Bailey  v.  Milten- 
berger,  31  Pa.  37;  or  to  place  obstructions  therein  be- 
tween high  and  low  water  marks  without  express  au- 
thority from  the  State:  Wainwright  v.  McCullough,  63 
Pa.  66 ;  Com.  ex  rel.  v.  The  Young  Men's  Christian  Assn., 
169  Pa.  24 ;  McGunnegle  v.  Pittsburgh  &  Lake  Erie  B.  B. 
Co.,  213  Pa.  383.  While  it  is  true  he  is  entitled  to  and 
becomes  the  owner  of  the  natural  accretions  to  his  land 
resulting  from  the  imperceptible  deposits  of  alluvion 
along  his  riparian  front,  it  is  equally  true,  as  found  by 
the  court  below,  this  principle  "does  not  apply  where 


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BLACK  et  al.  v.  AMERICAN  I.  C,  Appellant.      263 
1919.]  Opinion  of  the  Court, 

land  has  been  made  by  human  agency  by  depositing  ma- 
terial on  a  river  bottom" :  Poor  v.  McClure,  supra ;  Alle- 
gheny City  t.  Moorehead,  80  Pa.  118.  Such  accretions 
are  not  "gradual  and  imperceptible/'  and  are  not 
"brought  down  by  rivers"  or  other  streams.  It  is  not 
necessary  at  this  time  to  decide  which  of  the  foregoing 
principles  will  finally  be  held  applicable  in  determining 
title  to  the  property  the  subject  of  this  controversy. 
They  are  stated  for  the  purpose  of  showing  that  under 
the  findings  of  fact  hereinafter  recited,  a  doubt  may  well 
exist  as  to  plaintiffs'  title  to  the  property. 

The  court  below  finds  the  entire  tract  was  below  ordi- 
nary low  water  mark  in  the  year  1885 ;  beginning  at  that 
time  and  continuing  to  1895,  with  the  knowledge  and 
consent  of  plaintiffs,  the  bottom  of  the  river  in  front  of 
their  property,  both  above  and  below  ordinary  low  water 
mark,  was  used  as  a  dumping  ground  for  materials 
dredged  from  the  channels  of  the  Delaware  and  Schuyl- 
kill rivers  and  other  places,  under  the  direction  of  offi- 
cials of  the  United  States  government;  the  effect  thereof, 
and  of  their  construction  and  maintenance  of  Mifflin  Bar 
dike  (which  extends  along  the  entire  frontage  of  Hog 
Island),  was  to  accelerate  the  deposits  in  the  river  at 
this  point;  "about  the  year  1906,  the  United  States  Gov- 
ernment pumped  material,  by  means  of  hydraulic  dredges, 
on  the  land  above  the  open  basin  near  the  upper  end  of 
the  dike.  Sand,  gravel  and  earth  mixed  with  water  found 
their  way  by  gravity  into  the  river,  and  further  material- 
ly raised  the  bottom  of  the  river  bed.  Some  of  this 
material  flowed  back  into  the  channel  through  the  stone 
dike,  and,  to  prevent  this,  plaintiffs  were  required  by  the 
United  States  engineers  to  construct  a  mud  bank  along 
the  edge  of  the  dike  on  the  inside  thereof;  this  was  done 
in  1906.    In  the  year  1912,  a  cross-bank  was  built  by  the 

plaintiffs so  that  pumping  could  thereafter  take 

place  behind  the  cross-bank  without  danger  of  the  ma- 
terial flowing  back  into  the  water  at  any  point.  Since 
the  construction  of  these  banks,  the  area  included  behind 


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264      BLACK  et  al.  v.  AMERICAN  I.  C,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

them  has  been  made  fast  land  by  further  deposit  of 
dredged  material.  After  the  pumping  which  took  place 
in  1906;  no  further  dumping  from  scows  took  place  and 
no  further  pumping  on  this  area  until  after  the  con- 
struction of  the  said  cross-bank  in  1912."  The  result  of 
this  dredging  and  pumping  and  of  the  alluvion  brought 
down  by  the  river,  and  the  action  of  the  water  as  to  all 
three  thereof,  was  that  the  54  91-100  acres  became  part  of 
Hog  Island,  and  because  thereof  plaintiffs  now  claim  to 
own  it  in  fee. 

The  court  below  further  held,  as  a  matter  of  law,  the 
judgment  in  this  case  does  not  bind  the  Commonwealth, 
which  was  the  original  owner  of  the  land  below  low 
water  mark;  but  it  decided  plaintiffs  nevertheless  were 
entitled  to  recover  because  they  had  "presented  evidence 
which,  as  between  themselves  and  the  defendant,  and  as 
against  any  defense  raised  and  presented  by  the  defend- 
ant, clearly  entitled  them  to  judgment." 

In  thus  deciding  the  court  below  overlooked  the 
rules  of  law  applicable  to  this  class  of  cases.  An  action 
for  the  purchase  money  of  land  is  in  legal  effect  a  petition 
or  bill  for  specific  performance  of  the  contract  of  pur- 
chase, and  is  governed  by  the  same  equitable  principles : 
Nicol  v.  Carr,  35  Pa.  381 ;  Herzberg  v.  Irwin,  92  Pa.  48 ; 
Holmes  v.  Woods,  168  Pa.  530;  Keily  v.  Saunders,  236 
Pa.  593.  Hence,  whether  the  proceedings  be  by  petition, 
bill,  or  action  of  assumpsit  to  recover  the  purchase 
money,  the  vendee  is  not  obliged  to  take  a  doubtful  title; 
and  "every  title  is  doubtful  which  invites  or  exposes  the 

party  holding  it  to  litigation If  there  be  a  color  of 

an  outstanding  title  which  may  prove  substantial,  though 
there  is  not  enough  evidence  to  enable  the  chancellor  to 
say  that  it  is  so,  a  purchaser  will  not  be  held  to  take  it  and 
encounter  the  hazard  of  litigation  with  an  adverse  claim- 
ant": Speakman  v.  Forepaugh,  44  Pa.  363;  Batley  v. 
Foerderer,  162  Pa.  460;  Reighard's  Est.,  192  Pa.  108. 
To  now  compel  defendant  to  take  title,  would  subject  it 
to  that  hazard.     If  the  Commonwealth  ever  contests 


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BLACK  et  al.  v.  AMERICAN  I.  C,  Appellant.      265 
1919.]  Opinion  of  the  Court, 

plaintiffs'  title,  she  may  be  able  to  show  such  a  state  of 
facts  as  would  prevent  the  doctrine  of  accretions  from 
applying.  In  any  event  there  is  at  least  "color  of  an  out- 
standing title"  in  her,  and  though  there  may  be  "nothing 
in  evidence  to  enable  the  chancellor  to  say"  she  has  the 
better  title,  defendant  is  not  required  to  "encounter  the 
hazard  of  litigation"  with  her. 

The  judgment  of  the  court  below  is  reversed,  without 
prejudice  to  plaintiffs'  right  to  hereafter  demand  the 
purchase  money  of  said  land  whenever  they  can  give  to 
defendant  a  marketable  title  thereto. 


S.  G.  V.  Co.,  Appellant,  v.  S.  G.  V.  Co. 

Corporations — Holding  company  —  Separate  entity  —  Right  of 
creditors — Equity — Names. 

Where  one  corporation  conducts  its  own  business  through  the 
instrumentality  of  another  and  in  its  name,  the  capital  invested 
therein  by  the  former  cannot  be  treated  as  a  loan  to  the  latter 
against  the  rights  of  third  parties.  In  such  a  case  equity  looks  at 
the  substance  of  the  transaction,  and  will  not  permit  a  loss  to  be 
shifted  to  innocent  parties,  because  of  the  name  under  which  the 
business  was  done  or  the  manner  of  doing  it. 

Argued  March  4, 1919.  Appeal,  No.  177,  Jan.  T.,  1919, 
by  plaintiff,  from  decree  of  C.  P.  Berks  Co.,  No.  1,  134 
Equity  Docket,  1914,  dismissing  exceptions  to  master's 
report  in  case  of  The  S.  Q.  V.  Company  v.  The  S.  G.  V. 
Company.  Before  Brown,  C.  J.,  Stewart,  Mosch- 
ziskeb,  Frazer,  Walling  and  Kbphart,  J  J.    Affirmed. 

Bill  in  equity  for  a  receiver  of  an  insolvent  corpora- 
tion. 

The  case  was  referred  to  Stephen  M.  Meredith,  Esq. 
Exceptions  to  his  report  were  dismissed  by  the  court. 
Endlich,  P.  J.,  filed  an  opinion.  See  10  Berks  Co.  L.  J. 
217. 


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266  S.  G.  V.  CO.,  Appellant,  v.  S.  G.  V.  CO. 

Assignment  of  Errors — Arguments.  [264  Pa. 

Errors  assigned  were  dismissing  exceptions  to  mas- 
ter's report. 

Joseph  M.  Gazzwm  and  Cyrus  Q.  Derr,  with  them 
Knox  &  Dooling,  for  appellant. — The  Delaware  corpo- 
ration and  the  Pennsylvania  corporation  were  at  all 
times  and  are  distinct  entities:  Point  Bridge  Co.  v. 
Pittsburgh  &  West  End  Ry.  Co.,  230  Pa.  289;  Com.  v. 
Monongahela  Bridge  Co.,  216  Pa.  108. 

Thos.  /.  Snyder,  of  Snyder,  Zieber  &  Snyder,  for  ap- 
pellee.— The  claim  of  the  Delaware  corporation  was 
properly  disallowed  on  the  ground  that  from  the  time  of 
the  incorporation  of  the  Delaware  company  (the  ap- 
pellant) in  May,  1911,  until  the  appointment  of  the  re- 
ceiver for  the  Pennsylvania  corporation  (the  defendant) 
in  September,  1914,  the  Pennsylvania  corporation  was 
at  all  times  so  controlled  and  its  affairs  so  conducted 
by  the  Delaware  corporation  as  to  make  it  merely  an  in- 
strumentality, conduit,  or  adjunct  of  the  Delaware  cor- 
poration through  which  the  Delaware  corporation  was 
transacting  its  own  business  in  the  City  of  Beading,  that 
the  assets  nominally  in  the  name  of  the  Pennsylvania 
corporation  were  in  fact  purchased  by  and  owned  by  the 
Delaware  corporation,  that  the  business  of  the  manu- 
facture and  sale  of  automobiles  at  Beading  was  not  even 
nominally  conducted  by  the  Pennsylvania  corporation, 
but  was  in  every  particular  directly  managed,  controlled, 
and  conducted  by  the  board  of  directors  of  the  Delaware 
corporation  at  their  monthly  meetings  held  in  New  York, 
and  that  to  allow  the  Delaware  company  to  share  in  the 
proceeds  of  the  assets  now  in  court  for  distribution,  in 
fact  to  take  the  greater  portion  thereof,  against  bona  fide 
creditors  of  the  business  so  conducted,  managed  and  con- 
trolled by  the  claimant  company  itself,  would  work  the 
greatest  fraud  upon  such  creditors:  Montgomery  Web 
Co.  v.  Dienelt,  133  Pa.  585;  Penna.  Knitting  Mills  of 
Beading  v.  Bibb  Mfg.  Co.,  12  Pa.  Superior  Ct.  346;  Ken- 


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S.  G.  V.  CO.,  Appellant,  v.  S.  G.  V.  CO.  267 

1919.]  Arguments — Opinion  of  the  Court. 

dall  v.  Klapperthal  Co.,  202  Pa.  596;  Colonial  Trust  Co. 
v.  Montello  Brick  Works,  172  Fed.  310;  In  re  Water- 
town  Paper  Co.,  169  Fed.  252;  Gay  v.  Hudson  River 
Electric  Power  Co.,  187  Fed.  12;  Brown  v.  Penna.  Canal 
Co.,  229  Fed.  444. 

Opinion  by  Mb.  Justice  Walling,  March  24, 1919 : 
This  is  an  appeal  from  a  decree  of  distribution  of  the 
assets  of  an  insolvent  corporation.  In  1907  the  Acme 
Motor  Car  Company  was  chartered  as  a  Pennsylvania 
corporation,  with  principal  offices  at  Beading,  and  there- 
after engaged  in  the  manufacture  of  the  S.  Q.  V.  auto- 
mobile. It  was  practically  a  one  man  corporation;  all 
of  its  capital  stock,  amounting  to  $250,000,  was  owned  by 
one  J.  H.  Sternbergh.  In  May,  1911,  the  S.  G.  V.  Com- 
pany was  chartered  as  a  Delaware  corporation  with  large 
powers,  including  the  manufacture  of  and  traffic  in 
motor  vehicles  and  the  holding  of  stock  of  other  corpora- 
tions and,  so  far  as  local  laws  would  permit,  the  trans- 
action of  business  in  the  name  of  other  corporate  or  indi- 
vidual persons.  Its  immediate  object  was  the  acquisi- 
tion of  the  stock,  property  and  business  of  the  Acme 
Motor  Car  Company,  which  it  promptly  accomplished 
and  continued  the  business  under  the  same  corporate 
name  until  July,  1911,  when  it  was  duly  changed  to  "The 
S.  G.  V.  Co.,"  under  which  the  same  business  was  con- 
tinued until  1914,  when,  by  reason  of  insolvency,  a  re- 
ceiver was  appointed  therefor.  The  Delaware  corpora- 
tion has  a  capital  stock  of  f  400,000,  and  at  the  inception 
paid  Sternbergh  f 70,500  for  the  stock,  etc.,  of  the  Penn- 
sylvania corporation,  and  $ 20,000  for  advance  rent  of 
the  real  estate  occupied  by  it  at  Beading.  The  Pennsyl- 
vania company  continued  ostensibly  as  a  separate  corpo- 
ration; held  annual  meetings  at  which  directors  were 
elected,  who  transacted  practically  no  business,  and  no 
other  meetings  were  held  except  when  the  name  was 
changed.  The  entire  business  of  the  Pennsylvania  cor- 
poration was  under  the  control  and  management  of  the 


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268  S.  Q.  V.  CO.,  Appellant,  v.  S.  G.  V.  CO. 

Opinion  of  the  Court.  [264  Pa. 

Delaware  company  whose  board  of  directors  held  month- 
ly meetings  in  New  York  for  that  purpose;  at  which 
salaries  and  prices  were  fixed,  finances  arranged  and  all 
other  necessary  business  transacted.  The  directors  and 
officers  of  the  Pennsylvania  company  were  also  directors 
and  officers  of  the  Delaware  company.  In  the  estab- 
lishment and  conduct  of  the  business  the  latter  company 
furnished  about  $147,000,  for  which  it  took  the  former 
company's  notes  on  the  basis  of  loans.  These  financial 
transactions  were  made  on  the  orders  of  the  directors  of 
the  Delaware  company  in  which  the  directors  of  the 
Pennsylvania  company  as  such  took  no  part.  To  facili- 
tate the  business  the  Delaware  company  kept  a  bank  ac- 
count at  Beading,  but  held  no  meetings  in  this  State, 
and  never  engaged  in  any  other  enterprise.  During  the 
progress  of  the  business  debts  for  merchandise  were  con- 
tracted in  the  name  of  the  Pennsylvania  company  to  the 
amount  of  approximately  $91,000.  The  receiver's  ac- 
count showed  a  balance  of  some  $40,000;  to  make  dis- 
tribution of  which  a  master  was  appointed,  before  whom 
the  S.  G.  V.  Company  of  Delaware,  claiming  as  a  credi- 
tor, presented  its  notes  for  the  $147,000,  and  interest. 
The  master,  after  an  exhaustive  consideration,  directed 
distribution  of  the  fund  among  the  merchandise  creditors 
and  rejected  the  claim  above  mentioned  on  the  ground 
that  in  reality  the  business  was  that  of  the  Delaware 
company,  of  which  the  Pennsylvania  company  was  a 
mere  instrumentality  or  adjunct.  The  court  below,  after 
careful  deliberation,  adopted  the  master's  conclusion  and 
ordered  distribution  accordingly;  from  which  the  S.  Q. 
V.  Company  of  Delaware,  who  was  plaintiff  in  the  suit 
where  the  receiver  was  appointed  and  also  a  claimant, 
brought  this  appeal. 

The  facts  found  by  the  master,  as  in  part  outlined 
above,  are  supported  by  the  evidence  and  justify  the  de- 
cree. True,  the  Pennsylvania  corporation  continued  as 
a  separate  entity  notwithstanding  the  fact  that  its  stock 
was  all  held  by  the  Delaware  company  (Point  Bridge  Co. 


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S.  G.  V.  CO.,  Appellant,  v.  S.  G.  V.  CO. 
1919.]  Opinion  of  the  Court. 
v.  Pittsburgh  &  West  End  Co.,  230  Pa.  289;  Com.  v. 
Monongahela  Bridge  Co.,  216  Pa.  108;  Monongahela 
Bridge  Co.  v.  Pittsburgh,  etc.,  Traction  Co.,  196  Pa.  25; 
10  Cyc.  1277) ;  but  equity  looks  at  the  substance  of  the 
transaction  and  where  one  corporation  conducts  its  own 
business  through  the  instrumentality  of  another  and  in 
its  name,  the  capital  invested  therein  by  the  former  can- 
not be  treated  as  a  loan  to  the  latter  as  against  the  rights 
of  third  parties.  In  other  words,  one  who  invests  money 
in  his  own  business  cannot  in  case  of  failure  shift  the 
loss  to  innocent  parties  because  of  the  name  under  which 
the  business  was  done  or  the  manner  of  doing  it.  It  is 
well  stated  by  Judge  Endlich,  in  Kendall  v.  Klapper- 
thal  Co.,  202  Pa.  596,  607,  affirmed  by  this  court,  that 
equity  looks  to  the  substance  of  the  transaction,  not  to  its 
mere  form  or  color,  and  while  "a  corporation  does  not  lose 
its  legally  distinct  and  separate  personality  by  reason  of 
the  ownership  of  the  bulk  or  the  whole  of  its  stock  by  an- 
other,  nor  by  its  joining  hands  with  another  in  a 

common  enterprise.  But  it  is  well  understood  that  for 
purposes  of  equity,  courts  will  look  behind  that  artificial 
personality,  and  if  need  be,  ignore  it  altogether  and  deal 
with  the  individuals  who  constitute  the  corporation."  In 
the  present  case,  the  master  finds  "that  the  Delaware 
corporation  did  at  all  times  so  direct  and  control  the 
Pennsylvania  corporation  as  to  make  it  merely  an  in- 
strumentality or  adjunct  of  the  former" ;  and  the  court 
below  properly  concludes  that,  "When  the  Delaware  cor- 
poration put  its  money  into  the  Pennsylvania  corpora- 
tion, it  put  it  into  its  own  enterprise,  as  owner  of  the 
Pennsylvania  corporation  and  business,  not  into  an- 
other's enterprise  by  way  of  loan  as  a  creditor  dealing 
with  a  debtor.  What  it  chose  to  call  these  supplies  of 
money  is  of  no  serious  moment.  The  law  pays  little  heed 
to  the  label  parties  put  upon  their  transactions :  Bruns- 
wick v.  Hoover,  95  Pa.  508,  513."  Under  such  circum- 
stances the  controlling  corporation  cannot  share  as  a 
creditor  in  the  assets  of  the  insolvent  subsidiary  corn- 


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270  S.  G,  V.  CO.,  Appellant,  v.  S.  G.  V.  (30. 

Opinion  of  the  Court  [264  Pa. 

pany.  Any  other  rule  would  defeat  justice  and  open  the 
door  to  fraud.  This  principle  is  often  applied  in  bank- 
ruptcy cases  in  the  federal  courts.  See  In  re  Watertown 
Paper  Co.,  169  Fed.  252, 255;  Colonial  Trust  Co.  v.  Mon- 
tello  Brick  Works,  172  Fed.  310,  312;  Hunter  v.  Baker 
Motor  Vehicle  Company,  225  Fed.  1006,  1016,  1017; 
Brown  v.  Pennsylvania  Canal  Co.,  229  Fed.  444,  affirmed 
in  Pennsylvania  Canal  Co.  v.  Brown,  235  Fed.  669;  and 
see  also  Day  v.  Postal  Telegraph  Company,  66  Md.  354. 

We  base  our  decision  upon  the  ground  above  stated,  as 
did  the  court  below,  without  reference  to  the  right  of  the 
Delaware  corporation  to  maintain  its  action  in  this 
State. 

The  decree  is  affirmed  at  the  costs  of  appellant. 


Lebo  et  ai,  Appellants,  v.  Beading  Transit  &  Light 

Company. 

Practice,  C.  P. — New  trial — Discretion  of  court — Appeal 
The  appellate  court  will  not  reverse  an  order  of  the  common  pleas 
granting  a  new  trial  where  no  abuse  of  discretion  appears  on  the 
part  of  the  lower  court,  and  that  court  states  that  in  its  judgment 
"the  ends  of  justice  will  be  best  served  by  submission  of  this  case 
to  a  second  jury." 

Argued  March  4, 1919.  Appeal,  No.  262,  Jan.  T.,  1919, 
by  plaintiffs,  from  order  of  C.  P.  Berks  Co.,  May  T.,  1917, 
No.  89,  granting  a  new  trial  in  case  of  Franklin  E.  Lebo, 
by  his  next  friend  and  father,  William  Lebo  and  Henry 
Schof er>s  Sons,  Intervening  plaintiffs,  v.  Beading  Trans- 
it &  Light  Company.  Before  Brown,  C.  J.,  Fbazbb, 
Walling,  Simpson  and  Kbphaet,  JJ.   Affirmed. 

Trespass  to  recover  damages  for  personal  injuries  al- 
leged to  have  been  caused  by  the  negligence  of  a  motor- 
man  in  charge  of  an  electric  railway  car. 


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LEBO  et  al.,  Appellants,  v.  BEADING  T.  &  L.  CO.  271 
1919.]  Statement  of  Facts— Assignment  of  Error. 

At  the  trial  the  jury  returned  a  verdict  for  plaintiff 
for  |8,010.46. 

The  court  granted  a  new  trial. 

Endligh,  y.  J.,  filed  an  opinion  which  was  in  part  as 
follows : 

There  remains  defendant's  objection  founded  upon  the 
size  of  the  verdict.  It  must  be  conceded  that  it  is  beyond 
what  is  usual  and  beyond  what  appears  needful  for  the 
purposes  of  compensation  for  the  plaintiff's  suffering  and 
pecuniary  loss,  past,  present  and  future.  A  careful  ex- 
amination of  the  case,  however,  has  led  to  the  conclusion 
that  this  objection  cannot  properly,  and  therefore  ought 
not  to  be  attempted  to,  be  remedied  by  the  court  reduc- 
ing the  verdict.  In  order  to  justify  that  there  ought  to 
be  an  adequate  basis  in  the  evidence  for  it  affording  a 
safe  measure  of  reduction :  see  Stauffer  v.  Beading,  208 
Pa.  436,  437.  The  evidence  here  does  not  furnish  that 
basis  and  measure  for  a  reduction,  and  the  latter  would 
appear  as,  and  could  hardly  be  other  than,  an  arbitrary 
act  on  the  part  of  the  court.  Moreover,  it  must  not  be 
overlooked  that  in  an  action  like  this  a  plaintiff  on  the 
question  of  his  damages  has  the  constitutional  right  to 
have  them  assessed  by  a  jury:  Bradwell  v.  Pittsburgh 
Pass.  By.  Co.,  139  Pa.  404,  subject  to  the  power  of  the 
court  to  set  aside  the  verdict  if  clearly  too  great  or  too 
small.  We  are  of  opinion  that  in  this  instance  the  ends 
of  justice  will  be  best  served  by  the  submission  of  this 
case  to  a  second  jury.  Further  discussion  of  it  at  this 
time  with  reference  to  the  quantum  of  the  damages  is 
therefore  inadvisable :  see  McKnight  v.  Bell,  135  Pa.  358, 
373. 

The  rule  for  judgment  n.  o.  v.  is  discharged  and  the 
rule  for  a  new  trial  is  made  absolute. 

Plaintiffs  appealed. 

Error  assigned  was  order  granting  new  trial. 

Robert  Orey  Bushong,  with  him  H.  P.  Reiser,  for  ap- 
pellant 


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272  LBBO  et  aL,  Appellants,  v.  READING  T.  &  L.  CO. 

Opinion  of  the  Court  [264  P*. 

C.  H.  Ruhl,  for  appellee. 

Pbe  Curiam,  March  24, 1919 : 

This  appeal  is  from  the  order  of  the  learned  court  be- 
low awarding  a  new  trial.  It  was  awarded  because,  in 
the  judgment  of  the  court,  the  ends  of  justice  called  for 
a  submission  of  the  case  to  a  second  jury.  We  have  not 
been  convinced  that  there  was  any  abuse  of  discretion  in 
making  the  order;  on  the  contrary  it  was  properly  exer- 
cised, and  this  appeal  is,  therefore,  dismissed. 


Walton,  Exr.,  v.  American  Surety  Company  of  New 
York,  Appellant. 

Principal  and  surety — Bond — Duress — Affidavit  of  defense — Con- 
clusion of  law. 

1.  In  an  action  by  an  executor  against  a  surety  company  on  a 
bond  signed  by  the  company  and  an  individual,  -where  it  appears 
that  the  obligation  was  to  pay  a  debt  of  a  third  person  to  the  plain- 
tiff's decedent,  an  affidavit  of  defense  is  insufficient,  which  avers 
that  the  bond  was  not  given  for  value,  and  that  neither  of  the 
obligors  were  indebted  to  plaintiff  or  his  decedent,  that  the  bond 
was  given  to  prevent  the  issuing  of  a  warrant  against  the  debtor  re- 
ferred to  in  the  bond,  who  was  president  of  a  company  of  which  the 
individual  obligee  was  a  director,  that  such  arrest  would  have  re- 
sulted in  great  loss  to  such  obligee,  and  that  the  bond  was  obtained 
by  means  of  false  statements  and  threats  made  by  plaintiff's  coun- 
sel to  the  obligee,  without  any  averments  that  such  representations 
or  threats  were  made  to  the  defendant,  the  surety  company,  or  that 
the  debt  referred  to  in  the  bond  was  not  due,  or  that  the  debtor  had 
been  notified  before  the  execution  of  the  bond,  or  excuse  given  for 
not  notifying  him. 

2.  An  averment  in  the  affidavit  of  defense  that  "there  was  no 
criminal  liability"  on  the  part  of  the  debtor  mentioned  in  the  bond, 
is  a  mere  conclusion  of  law. 

3.  In  such  a  case,  where  it  appears  from  {he  affidavit  of  defense 
that  the  surety  company  knew  of  the  alleged  threats,  before  it 
executed  the  bond,  it  cannot  set  up  the  defense  of  duress. 

4.  A  defense  of  duress  is  open  only  to  the  party  upon  whom  it  is 
imposed ;  a  third  party,  who  has  become  a  surety  for  the  payment  of 


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WALTON,  Exr.,  v.  AMERICAN  S.  CO.,  Appellant.  273 

1919.]  Syllabus — Opinion  of  the  Court. 

the  claim,  cannot  avail  himself  of  the  plea,  unless  he  signed  the 

obligation  without  knowledge  of  the  duress. 

Argued  March  5, 1919.  Appeal,  No.  113,  Jan.  T.,  1919, 
by  defendant,  from  order  of  C.  P.  No.  5,  Philadelphia  Co., 
March  T.,  1918,  No.  4109,  making  absolute  rule  for  judg- 
ment for  want  of  a  sufficient  affidavit  of  defense  in  case 
of  Charles  Walton,  Executor  of  Joseph  W.  Janney,  de- 
ceased, v.  American  Surety  Company  of  New  York.  Be- 
fore Brown,  C.  J.,  Moschziskhr,  Frazbr,  Walling  and 
Kbphabt,  JJ.    Affirmed. 

Assumpsit  on  a  bond.    Before  Martin,  P.  J. 
The  court  made  absolute  rule  for  judgment  for  want 
of  a  sufficient  affidavit  of  defense. 

Error  assigned  was  the  order  of  the  court. 

Arthur  S.  Minster,  with  him  Ira  Jewell  Williams,  for 
appellant,  cited :  Lehigh  Coal  &  Nav.  Co.  v.  Brown,  100 
Pa.  338;  Ortt  v.  Schwartz,  62  Pa.  Superior  Ct.  70. 

Sidney  E.  Smith,  for  appellee,  cited :  Moyer  v.  Dodson, 
212  Pa.  344;  Phillips  to  use  v.  Henry,  160  Pa.  24. 

Opinion  by  Mr.  Justice  Moschziskhr,  March  24, 
1919: 

Plaintiff,  as  executor  of  Joseph  W.  Janney,  deceased, 
sued  the  American  Surety  Company  of  New  York,  on  a 
bond  under  seal,  and  recovered  judgment  for  want  of  a 
sufficient  affidavit  of  defense;  defendant  has  appealed. 

The  bond  in  suit,  dated  August  31,  1917,  executed  by 
the  surety  company  and  James  M.  Hamilton,  after  re- 
citing "there  appear  upon  the  books  of  Joseph  W.  Jan- 
ney, deceased,  certain  items  of  indebtedness  and  liability 
of  one  W.  E.  Walker  to  said  Joseph  W.  Janney,  and 

the  obligors  have  obligated  themselves  to  pay  the 

amount  of  this  indebtedness,"  states  it  is  conditioned 
Vol.  colxiv— 18 


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274  WALTON,  Exr.,  v.  AMERICAN  S.  CO.,  Appellant 

Opinion  of  the  Court.  [264  Pa. 

that,  if  the  obligors,  or  either  of  them,  pay  or  cause  to  be 
paid  to  the  obligee,  on  or  before  December  30,  1917, 
$4,500,  the  obligation  shall  be  void,  otherwise  to  remain 
in  full  force  and  effect. 

The  affidavit  of  defense,  while  admitting  execution  of 
the  bond,  denies  "the  same  was  for  value,"  or  that  either 
Hamilton  or  the  surety  company  were,  at  the  time  of  its 
execution,  indebted  to  plaintiff  or  his  decedent;  this^ 
however,  is  entirely  unavailing  as  a  defense,  for  the  suit 
is  not  based  on  an  original  indebtedness  of  either  Hamil- 
ton or  defendant,  but  upon  the  written  obligation  of  the 
latter,  under  seal,  to  pay  the  debt  of  Walker. 

The  affidavit  further  avers  that  Walker  was  president 
and  Hamilton  a  stockholder  and  director  of  the  Bankers9 
Oil  Company,  a  corporation,  operating  oil  wells  in  Kan- 
sas and  Oklahoma,  with  a  main  office  in  Philadelphia, 
and  that  the  duties  of  the  former  required  his  presence 
in  these  western  oil  fields,  "attending  to  the  actual  busi- 
ness of  producing,  selling  and  delivering  oil,  during  the 
performance  of  which  duties  he  was  frequently  absent 
from  Philadelphia  and  beyond  the  reach  of  mail  or  tele- 
graph communication";  but  there  is  no  averment  that 
Walker  was  absent  from  Philadelphia  when  the  bond 
in  suit  was  executed,  or  during  the  negotiations  which 
resulted  in  the  delivery  thereof. 

The  defense  really  depended  upon  is  thus  alleged :  In 
August,  1917,  Hamilton,  together  with  another  director 
of  the  oil  company,  and  its  attorney,  called  at  the  office  of 
plaintiffs  counsel,  in  Philadelphia,  when  the  latter 
made  threats  to  issue  a  warrant  for  the  arrest  of  Walker, 
on  charges  of  obtaining  money  under  false  pretenses 
from  the  decedent,  Janney,  saying  that,  upon  the  issu- 
ance of  such  warrant,  application  would  be  made  to  have 
Walker  extradited  from  the  western  states,  where  he  was 
performing  his  duties  as  president  of  the  oil  company, 
and  put  in  prison.  Defendant  avers  that,  at  this  time, 
plaintiff's  counsel  stated  the  books  of  Janney  showed 
Walker  indebted  to  him  in  the  sum  of  about  $4,200,  the 


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WALTON,  Exr.,  v.  AMERICAN  S.  CO.,  Appellant.  275 
1919.]  Opinion  of  the  Court, 

truthfulness  of  which  statement  Hamilton  had  no  means 
of  testing,  since  an  inspection  of  such  books,  though  re- 
quested, was  refused;  that  plaintiff's  counsel  accom- 
panied his  threat  to  arrest  Walker  by  a  suggestion  that, 
if  Hamilton  would  give  his  bond  with  surety  thereon  to 
plaintiff,  conditioned  to  pay  the  estate  of  Janney  the 
amount  of  the  alleged  indebtedness  of  Walker,  no  crimi- 
nal proceedings  would  be  taken  against  the  latter ;  that, 
relying  upon  these  representations,  Hamilton  gave  the 
bond  upon  which  this  suit  is  brought,  and  obtained 
execution  thereof  by  the  surety  company. 

If  apprehension  was  created  in  the  mind  of  Hamilton 
by  the  prospect  of  criminal  proceedings  involving  Walk- 
er, which  might  affect  the  Bankers'  Oil  Company,  it  is 
not  asserted  any  statements  or  threats  were  made  to  de- 
fendant (who,  incidentally,  had  no  interest  in  Walker 
or  the  oil  company),  or  that  plaintiff  had  authorized,  or 
even  knew  of,  the  alleged  threat  to  arrest  Walker. 

The  affidavit  does  not  deny  that  Walker  was  in- 
debted to  the  Janney  estate ;  it  merely  states  that,  "sub- 
sequent to  the  execution  of  said  bond,  Hamilton  com- 
municated with  Walker,  and  was  informed  that  not  only 
was  there  no  indebtedness  due  by  him  to  the  estate  of 
Joseph  W.  Janney,  deceased,  but  that,  on  the  contrary, 
Janney's  estate  was  indebted  to  him,  the  said  Walker." 
No  reason  is  given  for  failure  to  communicate  with 
Walker  before  the  bond  was  executed ;  nor  is  it  averred 
that  he  was  absent  from  the  city  at  the  time,  or  that  the 
urgency  was  such  as  to  require  instant  action. 

The  affidavit  also  alleges  that,  "subsequent  to  the  ex- 
ecution of  said  bond,"  Hamilton  further  ascertained  that 
statements  made  by  plaintiff's  counsel  with  regard  to  the 
entries  in  the  books  of  Joseph  W.  Janney,  deceased, 
"were  false  and  untrue" ;  but  it  fails  to  aver  in  what  re- 
spect the  statements  were  false  or  untrue. 

The  assertion  in  the  affidavit  that  "there  was  no 
criminal  liability  on  the  part  of  Walker"  is  a  mere  con- 
clusion of  law ;  while  the  allegation  that  defendant  was 


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276  WALTON,  Exr.,  v.  AMERICAN  S.  CO.,  Appellant 

Opinion  of  the  Court.  [264  Pa. 

led  to  execute  the  bond  in  suit  through  misrepresentation 
and  fraudulent  threats  of  plaintiff's  counsel,  is  unsup- 
ported by  any  statements  of  fact,  since  no  representa- 
tions or  threats  are  averred  as  made  to  defendant. 

Even  if  the  circumstances  leading  to  the  execution  of 
the  bond  amount  to  duress,  in  the  legal  sense  of  that  term 
(which  we  are  by  no  means  convinced  they  do),  then,  if 
such  is  the  defense,  the  affidavit  indicates  that,  when  the 
surety  company  entered  into  the  obligation  in  suit,  it 
had  knowledge  of  the  alleged  duress.  In  this  connection 
we  recently  said,  "the  general  rule  undoubtedly  is  that  the 
defense  of  duress  is  open  only  to  the  party  upon  whom  it  is 
imposed,  and  a  third  party  who  has  become  a  surety  for 
the  payment  of  the  claim  cannot  avail  himself  of  the  plea, 
unless  he  signed  the  obligation  without  knowledge  of  the 
duress"  (Fountain  v.  Bigham,  235  Pa.  35;  47) ;  and  the 
application  of  this  principle  is  a  complete  answer  to  any 
possible  plea  of  that  character  on  the  part  of  defendant. 

If  the  defense  intended  to  be  set  up  is  deception  as  to 
the  existence  of  indebtedness  by  Walker,  there  is  no  suf- 
ficient averment  of  such  deception,  as  already  indicated; 
in  other  words,  there  is  no  unequivocal  allegation  in  the 
affidavit  that,  as  a  matter  of  fact,  Walker  does  not  owe 
the  debt  alleged  against  him. 

In  brief,  the  defense  averred  shows  a  controversy  aris- 
ing over  a  claim  between  two  persons  into  which  an  ap- 
parent stranger  enters,  because  of  the  anticipation  of 
some  consequential  financial  damage  to  himself,  and,  for 
what  he  conceives  to  be  his  own  benefit,  at  the  suggestion 
(not  demand,  for  there  is  no  averment  of  demand)  of 
counsel  for  the  claimant,  agrees  to  assume  a  personal 
liability,  also  to  obtain  another  to  act  as  surety,  which  is 
accomplished  by  the  execution  and  delivery  of  a  bond 
under  seal,  being  the  obligation  sued  on ;  we  agree  with 
the  court  below  that  the  affidavit  does  not  indicate  the 
existence  of  either  a  meritorious  or  legal  defense  to  this 
bond. 


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WALTON,  Exr.,  v.  AMERICAN  S.  CO.,  Appellant.  277 
1919.]  Opinion  of  the  Court. 

A  supplemental  affidavit  of  defense  was  filed;  but,  as 
said  in  the  opinion  of  President  Judge  Martin,  it  is  "as 
evasive  as  and  no  more  specific  than,  the  original."  Again, 
quoting  from  the  opinion  just  referred  to,  "the  affidavits 
fail  to  aver  distinctly  every  fact  necessary  to  constitute  a 
defense  and  to  leave  nothing  to  inference,"  requirements 
which  the  court  below  had  the  right  to  insist  upon :  Peck 
v.  Jones,  70  Pa.  83. 

The  judgment  is  affirmed. 


Whitcomb  v.  Philadelphia,  Appellant. 

Municipalities — Eminent  domain — Sewage  disposal  plant — Dam- 
ages— Evidence — Prospective  development — Plans — Hearsay. 

1.  In  a  proceeding  to  assess  damages  for  land  condemned  by  a 
city  for  a  sewage  disposal  plant,  where  it  appears  that  the  land 
was  below  the  level  of  high  tide  in  two  neighboring  rivers  and  a 
tidal  creek,  and  where  it  also  appears  that,  notwithstanding  the  low 
level  of  the  land,  the  owner  claimed  that  it  was  adapted  for  manu- 
facturing establishments,  it  is  proper  to  admit  evidence  as  to  how 
the  property  was  protected  at  the  time  of  the  taking  by  a  well 
constructed  system  of  dykes,  ditches  and  pumping  stations,  and 
also  that  on  a  tract  of  neighboring,  although  not  contiguous  land, 
of  the  same  general  composition,  there  had  been  built  a  large  manu- 
facturing establishment.  The  opinion  of  a  witness  based  on  these 
facts  as  to  the  availability  of  the  land  for  industrial  sites,  is  clearly 
competent. 

2.  Such  testimony,  however,  would  come  to  naught,  if  the  owner 
did  not  show  that  there  was  a  demand,  at  the  time  of  the  taking, 
for  the  land  for  manufacturing  purposes,  or  that  a  demand  in  the 
near  future  might  reasonably  be  anticipated.  For  this  purpose  he 
may  offer  proof  that  similarly  located  land  in  the  neighborhood 
was  being  extensively  used  for  manufacturing  sites,  and  that  offers 
had  been  made  to  buy  the  land,  or  part  of  it,  as  a  manufacturing 
site  at  or  about  the  time  it  had  been  taken.  The  individual  who 
communicated  the  offer,  the  man  to  whom  it  was  communicated, 
and  any  one  standing  by  who  heard  it,  would  be  competent  to  testi- 
fy to  the  fact  that  an  offer  had  been  made  but  not  as  to  the  amount 
of  such  offer.    Such  testimony  would  not  be  hearsay. 


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278       WHITCOMB  v.  PHILADELPHIA,  Appellant. 

Syllabus— Statement  of  Facts.  [264  Pa. 

3.  A  witness  may  testify  as  to  the  use  of  properties  similarly 
situated  in  the  same  neighborhood,  having  the  same  general  ele- 
ments as  the  property  in  question.  If  the  property  extends  to  a 
county  line,  reference  to  land  in  the  adjoining  county,  in  like  use, 
is  proper. 

4.  It  is  also  proper  to  admit  in  evidence  in  such  a  case,  the  pros- 
pective development  and  the  plans  and  study  of  railroad  extensions 
in  the  neighborhood.  Such  evidence  cannot  be  considered  as  hear- 
say. 

Municipalities — Eminent  domain — Damages — Delay  in  payment 
— Interest — Presumption  as  to  rate. 

5.  When  land  is  taken  under  the  power  of  eminent  domain  the 
owner  thereof  acquires  the  right  to  its  value  immediately  upon  ap- 
propriation. Until  that  value  has  been  definitely  ascertained,  it 
is  called  damage,  not  a  debt  due;  but  when  ascertained  it  relates 
back  to  the  time  of  taking,  for  which  the  owner  is  entitled  to  com- 
pensation for  delay  in  its  payment,  unless  just  cause  be  shown  to 
the  contrary.  This  compensation  is  measured  by  the  normal  com- 
mercial rate  of  interest  during  the  period  of  detention.  If  no  evi- 
dence is  given  as  to  that  rate,  the  presumption  is  that  the  legal 
rate  was  in  effect. 

6.  Where  the  owner  does  not  name  an  exorbitant  price,  or  do 
anything  to  delay  settlement  he  is  entitled  to  the  legal  rate  of  in- 
terest as  damages ;  and  it  is  not  error  for  the  trial  court  to  refuse, 
and  not  read  to  the  jury,  a  point  to  the  effect  that  ''interest  should 
not  be  allowed  in  this  case,  inasmuch  as  the  so-called  Interest  Act 
of  June  1, 1915,  P.  L.  685,  is  unconstitutional"  The  affirmance  of 
such  a  point  would  be  to  deprive  the  owner  of  his  lawful  right  to 
have  his  compensation  for  delay  measured  in  the  usual  way. 

Practice,  Supreme  Court — New  trial — Abuse  of  discretion—As- 
signments of  error — Appeals. 

7.  The  Supreme  Court  will  not  sustain  an  assignment  of  error, 
complaining  of  a  refusal  of  a  new  trial,  unless  the  record  shows  a 
manifest  abuse  of  discretion. 

Argued  Jan.  15, 1919.  Appeal,  No.  148,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  1,  Philadelphia 
Co.,  March  T.,  1917,  No.  4052,  on  verdict  for  plaintiff  in 
case  of  Fanny  K.  Whitcomb  v.  Philadelphia.  Before 
Brown,  C.  J.,  Moschziskbb,  Frazer,  Walling  and 
hart,  JJ.    Affirmed. 


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WHITCOMB  v.  PHILADELPHIA,  Appellant.  279 
1919.]  Verdict — Opinion  of  the  Court. 

Appeal  from  award  of  board  of  viewers.  Before  Shoe- 
maker, J. 

Verdict  and  judgment  for  plaintiff  for  $387,856.29. 
Defendant  appealed. 

Errors  assigned  were  various  rulings  on  evidence,  suf- 
ficiently appearing  by  the  opinion  of  the  Supreme  Court, 
and  refusal  of  new  trial. 

Glenn  0.  Mead,  Assistant  City  Solicitor,  with  him  Wil- 
liam Brown,  Jr.,  Assistant  City  Solicitor,  and  John  P. 
Connelly,  City  Solicitor,  for  appellant,  cited:  Hall  v. 
Del.,  L.  &  W.  B.  B.  Co.,  262  Pa.  257;  Stone  v.  Del., 
Lack.  &  W.  B.  B.  Co.,  257  Pa.  456;  Bea  v.  Pittsburgh  & 
Connellsville  B.  B.  Co.,  229  Pa.  106;  Girard  Trust  Co.  v. 
Phila.,  248  Pa.  179. 

Francis  Shunk  Brown,  with  him  Yale  L.  Schekter  and 
Ira  Jewell  Williams,  for  appellee,  cited :  Pittsburgh  & 
Western  B.  B.  Co.  v.  Patterson,  167  Pa.  461;  Stone  v. 
Del.,  Lack.  &  W.  B.  B.  Co.,  257  Pa.  456;  Pittsburgh,  etc., 
B.  B.  Co.  v.  Bose,  74  Pa.  362;  Boberts  v.  Phila.,  239  Pa. 
339. 

Opinion  by  Me.  Justice  Kbphaet,  March  24, 1919 : 
The  City  of  Philadelphia  on  July  27,  1916,  by  con- 
demnation  proceedings,  acquired  a  piece  of  land  contain- 
ing 354.8  acres  for  a  sewage  disposal  plant.  This  judg- 
ment, appealed  from  by  the  city,  was  the  result  of  an  ac- 
tion instituted  by  the  appellee  to  recover  the  market  value 
of  that  property,  considering  all  of  the  elements  that  ordi- 
narily tend  to  give  it  value.  One  of  the  elements  of  value 
urged  was  that  the  property  was  useful  or  adaptable  as 
a  manufacturing  site.  It  was  in  the  center  of,  or  near, 
manufacturing  establishments.  Railroad  facilities 
were  in  close  proximity,  as  well  as  shipping  facilities 
within  easy  reach.  It  was  quite  near  large  labor  cen- 
ters, and  efforts  had  been  made  to  purchase  some  of  the 
property  for  a  manufacturing  establishment  prior  to 


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280       WHITCOMB  v.  PHILADELPHIA,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

the  time  of  taking.  The  City  of  Philadelphia  had,  in  the 
course  of  its  planning,  taken  this  property  into  consider- 
ation as  early  as  1909  as  being  capable  of  development  as 
a  location  for  a  manufacturing  plant.  This  was  shown 
by  a  plan  utilizing  this  section  of  the  water  front  for  im- 
provement by  the  building  of  wharves,  docks,  railroads, 
buildings  and  communicating  streets.  The  appellant 
complains  of  the  admission  of  evidence  to  prove  these  as- 
sertions of  fact  and  also  evidence  showing  the  physical 
characteristics  of  the  land  and  its  adaptability  for  the 
use  claimed. 

Taking  up  the  two  last  mentioned  complaints,  the  ap- 
pellee's testimony  shows  investigations  made  for  the  pur- 
pose of  ascertaining  the  suitability  of  the  property  for 
manufacturing  and  industrial  purposes.  Prom  test  bor- 
ings made  over  the  tract  at  various  times,  appellee  gave 
a  general  idea  of  the  surface  and  subsurface  soil,  so  that 
the  jury  might  know  that  the  property  was  capable  of 
sustaining  the  concentrated  loads  imposed  by  founda- 
tion walls,  columns  and  machinery  of  industrial  build- 
ings. The  composition  of  this  land  was  similar  to  that 
in  nearby  sections  upon  which  large  industries  had  been 
erected. 

The  Whitcomb  property  is  situated  near  the  Delaware 
and  Schuylkill  rivers  and  Darby  creek;  it  lies  below 
the  level  of  high  tide  in  these  streams.  In  connection 
with  the  discussion  of  the  character  of  the  soil,  attention 
was  called  to  the  manner  in  which  the  property  was  pro- 
tected from  the  incursion  of  this  tidal  water.  It  was 
done  by  a  well-constructed  system  of  riveted  dykes  or 
levees  along  the  banks  of  the  streams,  and  a  system  of 
drainage  by  ditches,  feeders  and  canals  leading  to  pump- 
ing stations  located  at  the  river  banks.  The  pumping 
stations  regulate  the  water  level  in  the  canals.  The  court 
received  all  this  evidence  in  so  far  as  it  described  the  con- 
ditions existing  at  the  time  of  taking,  but  did  not  receive 
testimony  as  to  anything  that  developed  since  that 
time.    This  was  quite  proper.    The  importance  of  know- 


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WHITCOMB  v.  PHILADELPHIA,  Appellant.       281 

1919.]  Opinion  of  the  Court, 

ing  that  the  formation  of  the  land  was  of  such  character 
that  it  could  be  used  for  industrial  purposes  is  apparent ; 
if  no  foundations  could  be  secured  for  the  buildings  and 
machinery  without  immense  outlays,  or  if  the  land  over 
flowed  with  water  at  each  high  tide,  or  if  it  were  not 
properly  drained,  its  availability  as  a  manufacturing 
site  was  considerably  lessened,  if  not  altogether  extin- 
guished. The  witness  who  described  these  conditions  did 
not  treat  them  as  existent  for  any  specified  manufactur- 
ing purpose.  His  testimony  related  to  conditions  on  and 
in  the  ground  and  the  probable  use  to  which  the  land 
could  be  put  from  a  physical  or  engineering  point  of 
view.  He  fortified  his  deductions  by  illustrations  per- 
tinent to  the  latter  then  under  investigation ;  and  cited 
situations  in  this  country  and  other  countries  where 
dykes  had  been  successfully  used  to  keep  tidal  waters 
from  overflowing  adjoining  lands. 

The  comparison  of  this  property  with  that  of  Hog 
Island  was  not  a  trial  error.  It  was  not  made  for  the 
purpose  of  showing  that  an  immense  structure  like  the 
shipping  plant  could  or  was  likely  to  be  located  on  this 
particular  land,  but  to  compare  the  topography  of 
Hog  Island  with  that  of  the  appellee's  land,  and  show 
that  Hog  Island,  of  the  same  general  composition,  had 
built  on  it  a  large  manufacturing  establishment,  even 
though  its  substratum  was  not  as  favorably  situated  as 
that  of  the  Whitcomb  land ;  while  a  property  intervened 
between  it  and  the  river,  some  few  hundred  feet 
away,  this  circumstance  would  not  destroy  its  use  as 
an  industrial  site  when  considered  in  connection  with 
water  transportation.  The  evidence  as  to  the  physical 
characteristics,  the  comparisons  just  discussed,  as  well 
as  the  opinion  of  the  witness  based  on  these  facts  as  to 
the  availability  of  this  land  for  industrial  sites,  was 
clearly  competent:  10  R.  C.  L.  Sec.  185,  p.  216;  Marine 
Coal  Co.  v.  Pittsburgh,  McKeesport  and  Youghiogheny 
R.  R.  Co.,  246  Pa.  478.  It  was  still  incumbent  upon  the 
appellee  to  show  that  there  was  a  demand,  at  the  time  of 


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282       WHITCOMB  v.  PHILADELPHIA,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

taking,  for  the  land  for  that  purpose,  or  that  a  demand  in 
the  near  future  might  reasonably  be  anticipated.  If 
such  evidence  be  not  present,  all  the  testimony  which  we 
have  just  discussed  would  come  to  naught. 

Eeference  was  made  to  land  similarly  located  in  the 
neighborhood  then  used  for  manufacturing  sites.  We 
see  nothing  irregular  about  this.  Neighborhood  is  not 
confined  to  contiguous  land.  It  may  embrace  territory 
within  a  reasonable  distance  from  and  having  many  of 
the  same  general  attributes  as  this  land.  The  admis- 
sion of  such  testimony  must  be  left  largely  to  the  sound 
discretion  of  the  trial  court.  Of  course,  properties  un- 
connected, separated  by  miles,  or  even  yards,  of  unde- 
veloped, intervening  space,  should  not,  merely  because 
they  are  situated  close  to  the  land  taken,  be  considered 
within  the  neighborhood  for  the  purpose  of  establish- 
ing beyond  question  that  the  land  would  in  all  proba- 
bility be  used  in  the  near  future  for  industrial  sites.  The 
evidence  as  to  the  uses  generally  made  of  such  properties 
should  be  followed  by  other  circumstances  having  a 
tendency  to  show  that  such  future  use  was  within  the 
range  of  reasonable  probability.  The  mere  fact  that  a 
manufactory  was  adjoining,  is  not  of  itself  sufficient  to 
create  a  demand  for  future  use  for  the  property  close  by. 
But,  when  a  section  of  the  country,  advantageously  lo- 
cated with  respect  to  rail  and  water  facilities,  is  being 
extensively  used  for  manufacturing  purposes,  it  is  some 
evidence  that  a  tract  in  the  neighborhood  may  be  called 
for  similar  use,  or  that  a  future  demand  might  reason- 
ably be  anticipated :  Marine  Coal  Co.  v.  Pittsburgh,  Mc- 
Keesport  and  Youghiogheny  R.  R.  Co.,  supra.  Like  ob- 
servations may  be  made  with  respect  to  the  property  be- 
ing near  large  labor  centers,  and  the  plan  of  the  City  of 
Philadelphia  made  some  years  ago  showing  contemplated 
Delaware  river  improvements.  All  this  evidence  might 
not  be  sufficient  to  submit  to  the  jury  the  question  of  prob- 
able future  demand.  We  need  not  so  decide,  as  we  have  in 
this  case  that  which  sustains  its  admission  and  causes 


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WHITCOMB  v.  PHILADELPHIA,  Appellant.       288 
1919.]  Opinion  of  the  Court. 

all  these  matters  here  discussed  to  become  important  in 
the  decision  of  the  case.  Offers  were  made  to  purchase 
a  part  of  this  land  for  use  as  a  manufacturing  site.  The 
credibility  of  the  witness  who  so  testified  was  for  the 
jury.  These  offers  did  not  come  through  an  agent  of  an 
undisclosed  principal,  as  the  offerors  were  acting  osten- 
sibly for  themselves.  But,  if  they  did  act  as  agents,  it 
would  not  be  necessary  to  call  the  person  who  authorized 
the  submission  of  the  offer  to  testify  that  he  had  author- 
ized it.  The  fact  to  be  proven  was  that  offers  had  been 
made  to  buy  the  land,  or  a  part  of  it,  as  a  manufacturing 
site,  to  show  demand  at  or  about  the  time  of  taking,  not 
price  or  value.  The  individual  who  communicated  the 
offer,  the  man  to  whom  it  was  communicated,  and  any- 
one standing  by  who  heard  it,  would  be  competent  to  tes- 
tify to  the  fact  that  an  offer  had  been  made  but  not 
the  amount  thereof.    It  was,  therefore,  not  hearsay. 

Opinions  of  persons,  having  a  special  and  peculiar 
knowledge  of  the  location  and  use  of  properties  of  the 
character  under  discussion,  may  be  given  as  to  the  best 
use  that  can  be  made  of  the  land  in  dispute  when  a  proper 
foundation  has  been  laid  for  such  opinion.  It  is  unneces- 
sary to  repeat  all  the  different  phases  of  evidence  upon 
which  the  appellee  bases  her  case.  It  is  sufficient  to  say 
enough  was  brought  upon  the  record  to  permit  the  intro- 
duction of  the  evidence  here  complained  of;  a  witness 
may  testify  as  to  the  use  of  properties  similarly  situated 
in  the  same  neighborhood  having  the  same  general  ele- 
ments as  this  property.  Township,  city  or  county  di- 
vision lines  will  not  forbid  the  introduction  of  this  tes- 
timony. The  appellee's  property  extended  to  Delaware 
County  and  reference  to  land  adjoining  in  that  county, 
in  like  use,  was  proper. 

The  prospective  development  and  the  plans  and  study 
of  railroad  extension  and  facilities  were  not  objected  to 
as  being  hearsay,  nor  was  their  admission  covered  by  the 
general  objection  to  the  offer  of  testimony.  We  doubt 
very  much  if  this  testimony  can  be  considered  hearsay. 


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284       WHITCOMB  v.  PHILADELPHIA,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

The  land  was  adapted  for  industrial  sites,  and  there  was 
a  demand  for  its  use  as  such,  and  this  element  of  value 
could  be  shown  in  estimating  the  damages  suffered  by  the 
taking.  All  of  the  assignments  of  error  relating  to  the 
admission  of  evidence  in  this  connection  are  overruled. 

When  land  is  taken  under  the  power  of  eminent  do- 
main, the  owner  thereof  acquires  the  right  to  its  value 
immediately  upon  appropriation.  Until  that  value  has 
been  definitely  ascertained,  it  is  called  damages,  not  a 
debt  due;  but  when  ascertained  it  relates  back  to  the 
time  of  taking,  and  the  owner  is  entitled  to  com- 
pensation for  delay  in  its  payment,  unless  just  cause  be 
shown  to  the  contrary :  Wayne  v.  Penna.  K.  K.  Co.,  231 
Pa.  512;  Hoffman  v.  Phila.,  250  Pa.  1;  and  261  Pa.  473. 
This  compensation,  like  all  other  charges  for  wrongfully 
withholding  money,  is  measured  by  an  interest  rate  re- 
coverable as  damages.  This  rate  will  be  the  normal  com- 
mercial rate  during  the  period  of  detention.  If  no  evi- 
dence is  given  as  to  that  rate,  the  presumption  is  that  the 
legal  rate  was  in  effect. 

It  will  be  seen  that  the  Act  of  June  1, 1915,  P.  L.  685, 
held  unconstitutional  in  Pennsylvania  Co.  v.  Phila.,  262 
Pa.  439,  did  not  cover  all  phases  of  the  question  of  com- 
pensation for  delay,  but  attempted  to  allow  interest  on 
the  damages  caused  by  the  taking,  without  considering 
whether  the  owner  named  an  exorbitant  value  for  his  land, 
or  stubbornly  refused  to  come  to  an  agreement  as  to  what 
should  be  paid  him,  or  was  otherwise  responsible  for  the 
delay.  We  held  the  act  to  be  special  legislation  applying 
to  municipalities  only.  The  court  below  declined  to  af- 
firm the  defendant's  sixth  point  construing  this  act,  and 
properly  did  so.  The  court  was  asked  to  say :  "Interest 
should  not  be  allowed  in  this  case,  inasmuch  as  the  so- 
called  Interest  Act  of  June  1,  WIS/'  is  unconstitutional. 
This  was  in  direct  conflict  with  the  law  as  it  has  always 
existed  in  reference  to  the  question  of  compensation  for 
delay,  measured  by  a  rate  of  interest ;  and  the  practical 
effect  of  the  point  was  to  deprive  the  plaintiff  of  this  law- 


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WHITCOMB  v.  PHILADELPHIA,  Appellant.       285> 

1919.]  Opinion  of  the  Court 

f ul  right.  Moreover,  in  refusing  the  point,  the  court  did 
not  read  it  to  the  jury;  they  were  instructed  in  substan- 
tially the  same  language  used  by  the  trial  court  in  Hirsch 
v.  North  Braddock  Borough,  252  Pa.  22,  and  it  was  held 
to  be  consonant  with  the  right  of  the  owner  to  recover 
compensation  for  delay.  The  appellee  did  not  name  an 
exorbitant  price,  or  do  anything  to  delay  the  settlement 
of  her  claim ;  as  no  rate  of  interest  was  submitted  at  the 
trial,  she  was  entitled  to  the  legal  rate  as  damages,  under 
the  authority  of  Wayne  v.  Penna.  R.  R.  Co.,  and  the  other 
cases  noted.  Under  these  facts,  the  act  of  assembly,  if 
constitutional,  gave  the  appellee  no  greater  right  to  com- 
pensation for  delay  than  did  the  law  as  it  stood  before 
the  act  was  passed,  and  the  jury  was  instructed  to  return 
damages  in  terms  as  the  law  thus  stood.  Had  the  point 
been  read  to  the  jury  and  denied,  thereby  impliedly  sus- 
taining its  constitutionality,  the  effect  would  have  been 
to  instruct  the  jury  on  the  law  as  we  had  previously  de- 
clared it  to  be — that  in  condemnation  cases,  unless  cause 
be  shown  to  the  contrary,  the  landowner  is  entitled  to 
compensation  for  delay  in  payment,  measured  by  an  in- 
terest rate.  The  rule  of  law  was  not  disturbed  by  an 
act  declared  unconstitutional,  and  the  jury  had  before  it 
only  this  rule  of  law.  The  appellant's  case  was  in  no 
wise  prejudiced  by  the  refusal  to  affirm  this  point. 

The  court  did  not  abuse  its  discretion  when  it  refused 
to  grant  the  motion  for  a  new  trial  for  the  reasons  there 
assigned.  We  have  frequently  said  this  court  will  not 
sustain  an  assignment  complaining  of  such  refusal  unless 
the  record  shows  a  manifest  abuse  of  discretion. 

This  disposes  of  all  the  assignments  of  error  and  the 
judgment  is  affirmed. 


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286    SWEATMAN  v.  PENNA.  R.  R.  CO.,  Appellant 

Syllabus— Verdict  [264  Pa. 


Sweatman  v.  Pennsylvania  Railroad  Company, 
Appellant 

Negligence — Railroads — Foreman  of  independent  contractor — 
Contributory  negligence — Death. 

1.  In  an  action  against  a  railroad  company,  to  recover  damages 
for  the  death  of  a  foreman  of  an  independent  contractor  run  down 
by  a  train  on  an  elevated  structure  of  the  railroad  company,  no 
recovery  can  be  had,  where  it  appears,  that  the  duty  of  the  de- 
ceased was  to  oversee  three  or  four  gangs  of  riveters  working  at 
different  places  underneath  the  level  of  the  tracks;  that  in  going 
to  the  points  where  the  men  were  working,  he  could  walk  along  a 
boardwalk  parallel  with  the  tracks,  or  could  walk  on  the  tracks  or 
could  cross  the  tracks ;  that  he  had  been  engaged  in  this  work  for 
three  or  four  months;  that  on  the  night  of  the  accident  he  was 
walking  along  the  boardwalk,  at  a  point  where  the  planks  for  a 
short  distance  had  been  torn  up  and  a  plank  had  been  placed  along 
the  nearest  rail ;  that  he  could  pass  around  the  obstruction  by  using 
the  plank ;  that  as  he  was  about  to  step  down  from  the  boardwalk 
to  the  plank,  or,  as  he  was  leaning  over  the  side  of  the  boardwalk, 
he  was  struck  by  the  head  of  an  approaching  engine,  with  light 
burning  and  bell  ringing. 

2.  In  such  a  case  the  deceased  was  not  so  absorbed  or  taken  up 
with  his  work,  at  the  time  of  the  accident,  as  to  relieve  him  from 
the  duty  of  looking  out  for  his  own  safety. 

Van  Zandt  v.  P.,  B.  &  W.  R.  R.,  248  Pa.  276,  distinguished. 

Argued  Jan.  20, 1919.  Appeal,  No.  71,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  2,  Philadelphia 
Co.,  March  T.,  1915,  No.  2632,  on  verdict  for  plaintiff  in 
case  of  Catharine  C.  Sweatman  v.  Pennsylvania  R.  R. 
Company.  Before  Stewart,  Peazbr,  Walling,  Simp- 
son and  Kbphabt,  JJ.    Reversed. 

Trespass  to  recover  damages  for  death  of  plaintiff's 
husband.    Before  Rogers,  J. 

Verdict  and  judgment  for  plaintiff  for  $3,500.  De- 
fendant appealed. 


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SWBATMAN  v.  PENNA.  R.  R.  CO.,  Appellant.    287 
1919.]         Assignment  of  Error — Opinion  of  the  Court 

Error  assigned  was  in  discharging  defendant's  motion 
for  judgment  n.  o.  v. 

Ralph  B.  Evans,  of  Prichard,  Saul,  Bayard  &  Evans, 
for  appellant. — The  distinction  between  the  relative 
rights  and  duties  of  a  laborer  actually  at  work  in  a  po- 
sition of  danger  on  or  near  the  tracks  and  a  man  who  is 
lawfully  on  the  tracks  but  not  actually  engaged  in  work, 
is  clearly  pointed  out  by  Judge  McPhbrson  in  his  opin- 
ion in  Soccorso  v.  P.  &  R.  Ry.  Co.,  166  Fed.  378.  See  also 
N.  Y.,  N.  H.  &  H.  R.  R.  Co.  v.  Pontillo,  211  Fed,  331; 
Aerkf etz  v.  Humphreys,  145  U.  S.  418. 

Peter  M.  MacLaren,  with  him  Leroy  N.  King,  for  ap- 
pellee.— This  case  is  ruled  by  VanZandt  v.  Phila.,  Balti- 
more &  Washington  R.  R.  Co.,  248  Pa.  276. 

Opinion  by  Me.  Justice  Kbphaet,  March  24, 1919 : 
The  deceased  was  employed  as  a  foreman  in  charge  of 
riveters  by  Gibbs  &  Hill,  contractors,  who  were  engaged 
by  the  appellant  to  construct  its  electrification  system  on 
its  main  line  from  Broad  Street  Station  to  Paoli.  The 
work  of  the  contractors  as  it  related  to  the  foreman's 
duties  was  located  between  Eighteenth  and  Twentieth 
streets  and  consisted  in  the  building  of  foundations  for 
signal  towers.  The  railroad  between  Broad  and  Twen- 
tieth streets  is  elevated  and  the  foundations  were  outside 
the  line  of  the  elevated  structures  and  below  the  level  of 
the  tracks.  The  deceased,  on  the  night  of  the  accident, 
had  three  or  four  gangs  working  at  different  places  un- 
derneath or  below  the  level  of  the  tracks.  It  was  his 
duty  to  inspect  the  work  of  these  men  and  see  that  they 
were  supplied  with  tools  and  rivets.  In  going  to  the 
points  at  which  his  men  were  located  he  could  walk  along 
the  tracks  next  to  Filbert  street,  using  a  boardwalk  some 
three  feet  in  width,  or  he  could  walk  on  the  tracks,  or 
cross  the  tracks.  To  descend  below  the  tracks  he  would 
climb  over  the  railing  which  runs  along  the  boardwalk 


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288    SWBATMAN  v.  PENNA.  R.  R.  CO.,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

next  to  Filbert  street  and  thence  down  a  few  feet  to  the 
foundation  on  which  his  men  were  at  work.  He  had  been 
engaged  at  this  work  for  three  or  four  months  during  the 
day  time  and  about  a  week  at  night.  On  the  night  of  the 
accident,  he  was  walking  along  the  boardwalk  going 
from  Broad  street  in  the  direction  of  a  forge  where  rivets 
were  being  heated.  He  reached  a  point  in  the  walk  where 
the  planks  were  torn  up  for  a  short  distance  and  a  board 
had  been  placed  on  the  ties  along  and  outside  of  the  rail 
nearest  the  walk.  He  could  pass  around  the  obstruction 
by  using  this  board  or  plank.  To  step  from  the  board- 
walk to  the  board  or  plank  it  was  necessary  to  step  down. 
For  some  time  the  foreman  had  been  accustomed  to  use 
this  walk  and  as  he  was  about  to  take  the  step,  or  just 
as  he  was  leaning  over  the  side  of  the  boardwalk,  he  was 
struck  on  the  head  by  the  engine  of  a  passenger  train 
traveling  towards  Broad  Street  Station.  The  headlight 
of  the  engine  was  burning  and  the  bell  ringing.  These 
facts  state  the  appellee's  case  in  its  most  favorable  as- 
pect. 

There  were  three  trials  in  the  court  below.  The  first 
resulted  in  a  disagreement  of  the  jury ;  the  second  in  a 
compulsory  nonsuit,  later  taken  off;  and  the  third  in  a 
verdict  for  the  appellee  upon  which  judgment  was  en- 
tered. The  assignments  of  error  complain  of  the  refusal 
of  the  court  below  to  direct  a  verdict  for  the  defendant 
and  to  sustain  its  motion  for  judgment  n.  o.  v. 

We  may  assume,  for  the  purposes  of  this  case,  that  the 
defendant  was  negligent ;  just  in  what  particular,  does 
not  definitely  appear.  The  deceased  was  fully  acquaint- 
ed with  his  working  conditions,  the  boardwalk  and  the 
track  at  the  place  where  he  was  killed ;  moreover,  he  was 
walking  in  the  direction  from  which  the  train,  with 
headlight  burning  and  bell  ringing,  was  approaching. 
What  additional  warning  he  needed,  or  what  good  the 
services  of  a  watchman  might  have  been,  does  not  appear. 
Since  there  are  many  tracks  between  Eighteenth  and 
Twentieth  streets  and  plaintiff  was  at  liberty  to  cross 


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SWEATMAN  v.  PBNNA.  R.  R.  CO.,  Appellant.    289 
1919.]  Opinion  of  the  Court. 

anywhere,  it  would  be  difficult  to  place  a  watchman  at 
every  point  he  was  likely  to  use.  His  death  having  re- 
sulted in  the  manner  indicated,  when  his  movements  : 
along  the  walk  and  to  the  board  on  the  track  were  all  con-  ] 
tinuous,  a  watchman  would  have  been  of  no  use  to  him,  as  ; 
the  act  of  stepping  from  his  place  of  safety  on  the  walk,  ! 
or  stooping  over  and  being  struck  by  the  engine,  were 
concurrent.  A  watchman  could  not  have  prevented  his 
movements,  nor  would  a  locomotive  whistle  in  a  yard 
filled  with  constantly  moving  trains  have  assisted  him 
in  avoiding  the  danger.  The  engineer  and  fireman,  see- 
ing him  approach  along  the  boardwalk,  with  the  engine 
upon  which  they  were  riding  in  his  full  view,  could  not 
have  anticipated  that  he  would  suddenly  stoop  over  im- 
mediately in  front  of  the  train.  They  naturally  would 
assume  that  he  would  remain  in  a  place  of  safety.  How- 
ever, as  we  view  the  conduct  of  the  deceased,  he  was 
clearly  at  fault  and  the  unfortunate,  fatal  accident  may 
be  attributed  to  his  own  carelessness.  His  duty  of  in- 
spection and  that  of  supplying  tools  and  materials 
would  engage  his  mind  only  when  he  was  so  employed  at 
that  work.  He  was  not  so  engaged  immediately  before 
or  at  the  time  of  the  accident.  The  inspection  took  place 
underneath  the  tracks  where  the  foundation  was  being 
built  and  the  tools  were  in  a  place  of  safety  close  by.  He 
had  no  duty  or  work  to  perform  on  the  tracks  except  to 
walk  from  place  to  place.  It  is  true  that  while  thus 
walking  he  was  doing  what  this  labor  called  for,  but  the 
act  of  walking  did  not  relieve  him  from  the  obligation  of 
using  due  care  while  thus  engaged.  His  mind  was  not  so 
absorbed  or  taken  up  that  it  might  be  said  he  could  not 
properly  take  care  of  himself.  To  so  hold,  would  require 
that  every  person  lawfully  walking  on  railroad  tracks 
should  be  accompanied  by  a  watchman,  or  some  person 
as  a  guard.  The  deceased  was  unhindered  and  free  to 
look  and  to  listen.  Had  he  taken  the  slightest  pre- 
caution an  ordinarily  prudent  man  would  take,  he  would 
not  have  been  killed.  Had  he  been  working  at  a  place  of 
Vol.  cclxiv — 19 

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290    SWBATMAN  v.  PENNA.  E.  E.  CO.,  Appellant 

Opinion  of  the  Court  [264  Pa. 

danger  on  the  tracks  where  his  mind  must  necessarily  be 
occupied  with  his  duties,  the  company  would  be  charged 
with  the  responsibility  of  adequately  protecting  him  as 
he  worked  and  the  rule  in  VanZandt  v.  Phila.,  Baltimore 
&  Washington  R.  R  Co.,  248  Pa.  276,  would  apply.  In 
that  case  a  carpenter  working  between  a  pier  and  rail- 
road tracks,  building  forms  for  concrete  work,  was 
struck  on  the  side  while  actually  engaged  with  mind  and 
body  at  his  labor.  His  work  then  required  his  constant 
attention,  which  could  not  be  given  if  he  were  compelled 
to  look  up  and  around  at  every  sound  on  the  many  tracks 
about  the  place  where  he  was  at  work.  We  held  it  was 
the  duty  of  the  company  to  furnish  him  adequate  protec- 
tion. The  statement  of  facts  is  all  that  is  necessary  to 
distinguish  the  cases.  But  the  rule  in  the  VanZandt 
case  should  not  be  held  to  apply  to  a  person  who  at  the 
time  is  engaged  in  walking  from  place  to  place  on  the 
tracks  of  a  railroad  as  above  clearly  outlined. 

We  are  of  the  opinion  that  the  court  below  erred  in  not 
sustaining  the  defendant's  point  for  binding  instruction. 
The  judgment  of  the  court  below  is  reversed  and  the  rec- 
ord is  remitted  with  direction  to  enter  judgment  n.  o.  y. 


Shifferstine  et  al.  v.  Sitler  et  al.,  Appellants. 

Practice,  C.  P.  —  Summary  judgment  —  Affidavit  of  defense  in 
nature  of  demurrer — Allowance  of  supplemental  affidavit  of  defense 
—Act  of  May  U,  1916,  P.  L.  488. 

Where  an  affidavit  of  defense  makes  no  denial  of  the  facts  con- 
tained in  the  statement  of  claim,  but  simply  raises  questions  of  law, 
the  court  cannot,  on  finding  the  questions  of  law  in  favor  of  the 
plaintiff,  enter  a  summary  judgment  in  his  favor,  but  must  give 
the  defendant  an  opportunity  to  file  a  supplemental  affidavit  of  de- 
fense to  the  averments  of  facts  of  the  statement,  in  accordance  with 
the  provisions  of  the  Act  of  May  14, 1915,  P.  L.  483. 

Argued  Feb.  19, 1919.  Appeal,  No.  230,  Jan.  T.,  1919, 
hy  defendants,  from  order  of  C.  P.  Schuylkill  Co.,  Sept. 


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SHIPPBESTINB  v.  SITLER^ppellants.         291 
1919.]  Statement  of  Facts — Opinion  of  the  Court. 

T.,  1918,  No.  93,  entering  judgment  for  plaintiff  in  case 
of  E.  E.  Shifferstine,  President  of  the  School  Board  of 
the  School  District  of  the  Borough  of  Tamaqua,  now 
Thomas  J.  Howells,  President  of  said  School  Board  to 
use  of  the  School  District  of  Tamaqua  Borough,  v.  0.  E. 
Sitler,  Alfred  Knepper,  John  A.  Moyer,  Charles  Graeff, 
administrators  of  the  estate  of  Charles  Snyder,  deceased, 
Barbara  E.  Wetterau,  executrix  of  the  estate  of  John 
Wetterau,  deceased,  Alfred  Knepper.  Before  Stbwabt, 
Moschziskrb,  Walling,  Simpson  and  Kbphabt,  JJ. 
Judgment  modified. 

Assumpsit  against  sureties  on  a  bond  of  a  collector  of 
school  taxes  for  f 40,000. 

The  court  entered  judgment  for  plaintiff  without  giv- 
ing defendant  an  opportunity  to  file  a  supplemental  affi- 
davit of  defense. 

Error  assigned  was  the  judgment  of  the  court. 

J.  O.  Ulrich,  for  appellant. 

Arthur  L.  Shay,  for  appellee. 

Opinion  by  Mb.  Justice  Kbphabt,  March  24, 1919 : 
The  court  below  directed  judgment  to  be  entered  for 
want  of  a  sufficient  affidavit  of  defense  and  the  only 
question  for  our  consideration  is,  was  it  proper  to  enter 
a  summary  judgment  under  Section  20  of  the  Act  of  May 
14, 1915,  P.  L.  483,  without  permitting  the  defendant  to 
file  a  supplemental  affidavit.  The  original  affidavit 
raised  only  questions  of  law  and  there  was  no  effort  to 
answer  "the  averments  of  fact  in  the  statement  of  claim." 
It  challenged  the  right  of  the  legal  plaintiff  and  his  suc- 
cessor to  sue,  for  the  reason  they  did  not  fill  the  descrip- 
tion recited  in  the  bond.  Other  purely  legal  objections 
were  urged,  and  the  court  below,  in  passing  on  this  affi- 
davit, sustained  the  fourth  objection,  that  Thomas  J. 


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292  SHIPPBRSTINE  v.  SITLEE,  Appellants. 

Opinion  of  the  Court.  [264  Pa. 

Howells,  named  as  the  legal  plaintiff,  was  "improperly  in- 
troduced, as  he  is  not  a  party  to  this  action."  It  per- 
mitted an  amendment  correcting  the  record,  so  that  the 
legal  plaintiff  might  be  named. 

Section  20  of  the  act  reads :  "The  defendant  in  the  af- 
fidavit of  defense  may  raise  any  question  of  law,  without 
answering  the  averments  of  fact  in  the  statement  of 
claim;  and  any  question  of  law,  so  raised,  may  be  set 
down  for  hearing,  and  disposed  of  by  the  court.  If  in 
the  opinion  of  the  court  the  decision  of  such  question  of 
law  disposes  of  the  whole  or  any  part  of  the  claim,  the 
court  may  enter  judgment  for  the  defendant,  or  make 
such  other  order  as  may  be  just.  If  the  court  shall  decide 
the  question  of  law,  so  raised,  against  the  defendant,  he 
may  file  a  supplemental  affidavit  of  defense  to  the  aver- 
ments of  fact  of  the  statement  within  fifteen  days." 

It  was  the  intention  of  the  legislature  to  include  in  the 
answer  legal  objections  that  were  formally  submitted  by 
way  of  demurrer.  Unlike  the  former  practice  an  absolute 
judgment  cannot  be  entered  against  the  defendant,  but 
merely  a  judgment  requiring  him  to  answer  over  or  a 
judgment  of  respondeat  ouster.  There  can  be  no  mis- 
understanding as  to  the  meaning  of  the  section  when 
questions  of  law  alone  are  raised;  the  court  has  no 
option  as  to  its  enforcement,  but  is  obliged  to  give  the 
defendant  the  time  mentioned  within  which  to  file  his 
supplemental  affidavit.  If  it  should  appear  from  such 
affidavit  that  the  sureties  did  comply  with  the  conditions 
of  the  bond,  and  the  manner  in  which  it  was  done,  a  de- 
fense of  fact  would  be  presented  which,  if  proven,  would 
be  a  complete  answer.  If  they  have  such  defense,  an  op- 
portunity should  be  given  to  present  it. 

The  judgment  of  the  court  below  is  modified  and  it  is 
ordered  that  judgment  be  entered  as  directed  by  the  court 
below,  unless  within  fifteen  days  from  the  day  of  the 
return  of  this  record  the  defendant  shall  have  filed  "a 
supplemental  affidavit  of  defense  to  the  averments  of  fact 
of  the  statement." 


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HORNING  t>.  KRAUS  et  al.,  AppeUants.  293 

1919.]  Syllabus— Statement  of  Facts. 

Horning  v.  Kraus  et  aL,  Appellants. 

Deeds — Conveyance  of  coal — Use  of  surface — Mines  and  mining 
— Construction  of  deed. 

A  deed  conveying  coal,  'together  with  all  the  necessary  privi- 
leges, through  and  under  the  lands.  <. ..  .for  the  opening,  mining, 
airing,  draining  and  transporting  to  market  of  said  coal  hereby  sold 

and  conveyed ;   also  the  privilege  of  a  road  or  right-of-way 

not  exceeding  20  feet  in  width  from  the  main  entrance  to  said  coal," 
along  a  designated  line,  confers  no  right  to  use  the  surface  outside 
the  area  of  the  underlying  coal  for  the  purpose  of  erecting  and  main- 
taining a  coal  chute,  storage  bins,  track  scales  and  other  structures. 

Argued  Feb.  10,  1910.  Appeal,  No.  25,  Oct.  T.,  1919, 
by  defendants,  from  decree  of  C.  P.  Allegheny  Co.,  Jan. 
T.,  1919,  No.  614,  in  equity  restraining  defendants  from 
using  plaintiff's  land  for  mining  operations,  in  the  case 
of  John  O.  Horning  v.  J.  W.  Kraus  et  al.,  Partners,  trad- 
ing as  Black  Hills  Coal  Company.  Before  Brown,  C.  J., 
Stewart,  Frazbr,  Simpson  and  Ebphart,  J  J.   Affirmed. 

Bill  in  equity  for  an  injunction.    Before  Carpenter,  J. 

The  defendants  claimed  certain  rights  and  privileges 
upon  the  plaintiffs  land  by  virtue  of  the  ownership  of 
underlying  coal.  The  case  turned  upon  the  construction 
of  the  deed  conveying  the  coal. 

The  plaintiffs  first  request  for  findings  of  fact  and 
the  answer  of  the  court  thereto  was  as  follows : 

"The  plaintiff  is  the  owner  of  the  surface  upon  which 
the  defendants  have  made  an  entry  for  the  purpose  of 
reaching  their  coal  and  upon  which  they  have  con- 
structed a  coal  chute,  and  upon  which  they  propose  to 
construct  bins  for  storing  coal,  track  scales,  blacksmith 
shop  and  mule  stable,  and  a  storage  room  for  supply 
parts,  etc.  The  defendants  propose  to  use  about  an  acre 
and  a  half  of  the  plaintiffs  land.  The  land  which  they 
propose  to  use  does  not  overlie  the  defendants' coal,  it  lies 
adjacent  to  the  coal  but  outside  of  the  lines  of  the  same." 

Affirmed. 


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294  HORNING  v.  KRAUS  et  aL,  Appellants. 

Statement  of  Facts — Arguments,  [264  Pa. 

The  court's  eleventh  finding  of  fact  is  as  follows: 
"The  opening  of  which  complaint  is  made  and  the 
location  selected  for  the  chute,  bins  or  platform,  etc., 
which  defendants  purpose  constructing,  are  outside  the 
boundaries  of  the  coal  as  surveyed  and  conveyed  to  James 
H.  Hays,  being  between  said  surveyed  line  and  Main 
street,  and,  if  the  said  proposed  structures  are  erected, 
will  occupy  about  125  to  150  feet  of  the  frontage  of  plain- 
tiff's land  on  said  street,  to  wit :  the  frontage  extending 
from  the  chute  to  the  Keeling  Tunnel.  Main  street,  at  the 
point  mentioned,  and  for  some  distance  east  and  west, 
is  on  the  McCleery  land,  now  owned  by  plaintiff,  and 
between  the  surveyed  line  of  the  coal  and  the  line  of  land 
now  or  late  of  the  Wilson  heirs." 

The  court  awarded  an  injunction.  Defendants  ap- 
pealed. 

Error  assigned,  among  others,  was  the  decree  of  the 
court. 

George  J.  Shaffer,  with  him  J.  W.  Kraus,  for  appel- 
lants.— The  easement  or  right-of-way,  was  created  by  vir- 
tue of  a  grant  and  does  not  arise  and  was  not  exercised 
ex  necessitate:  March-Brownback  Stove  Co.  v.  Evans, 
9  Pa.  Superior  Ct.  597;  Citizens  Electric  Co.  v.  Davis, 
44  Pa.  Superior  Ct.  138. 

The  grant  of  "all  the  necessary  privileges  through  and 
under  the  lands  of  the  party  of  the  first  part  for  the  open- 
ing, mining,  airing,  draining  and  transporting  to  market 
of  the  said  coal"  gave  the  grantee  and  his  successors,  the 
right  to  exercise  those  rights  on  any  part  of  the  surface : 
Trout  v.  McDonald,  83  Pa.  144. 

William  A.  Seifert,  with  him  Reed,  Smith,  Shaw  & 
Beat,  for  appellee. — Where  a  right-of-way  is  specifically 
bounded  and  defined  in  the  grant  or  reservation  the  terms 
of  the  deed  will  control  and  the  question  of  convenient  use 


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HORNING  v.  KRAUS  et  al.,  Appellants.  295 

1919.]  Arguments — Opinion  of  the  Court. 

is  immaterial :  14  Cyc.  1161 ;  Cubbage  y.  Pittsburgh  Coal 

Company,  216  Pa.  411;  Kraut's  App.,  71  Pa.  64. 

The  right  to  use  land  lying  outside  of  the  coal  area, 
has  long  since  been  exhausted,  except  as  to  the  20-foot 
right-of-way :  Sechrist  v.  Dallastown  Boro.,  45  Pa.  Su- 
perior Ct.  105;  Bosch  v.  Hoffman,  42  Pa.  Superior  Ct. 
313;  Colt  v.  Redfield,  59  Conn.  427;  William  v.  Safford, 
7  Barb.  309;  Stetson  v.  Curtis,  119  Mass.  266. 

Pbb  Curiam,  April  14, 1919: 

That  the  rights  of  James  H.  Hays  under  the  deed  for 
the  coal  conveyed  to  him  by  James  McCleery  on  Novem- 
ber 20,  1866,  is  the  measure  of  the  right  of  the  defend- 
ants to  use  the  surface  now  owned  by  the  plaintiffs  is  con- 
ceded. In  the  first  finding  of  fact  found  by  the  learned 
chancellor  below,  at  the  request  of  plaintiff,  and  in  his  own 
eleventh  finding  there  is  set  out  what  the  defendants  at- 
tempted to  do  when  this  bill  was  filed.  These  findings 
are  not  assigned  as  error.  The  right  of  the  successors  in 
title  to  Hays  to  use  the  surface  is  to  be  found  in  the  fol- 
lowing from  McCleery's  deed  to  him :  "Together  with  all 
the  necessary  privileges,  through  and  under  the  lands  of 
the  said  party  of  the  first  part  for  the  opening,  mining, 
airing,  draining  and  transporting  to  market  of  said  coal 
hereby  sold  and  conveyed,  and  also  any  other  coal  the 
said  party  of  the  second  part  now  owns  or  he,  his  heirs 
and  assigns,  may  hereafter  purchase  or  acquire.  Also 
the  privilege  of  a  road  or  right-of-way  not  exceeding. 20 
feet  in  width  from  the  main  entrance  to  said  coal  hereby 
sold  and  conveyed,  along  the  line  of  the  Wilson  heirs  and 
parsonage  lot  in  the  direction  of  Saw  Mill  run,  said  party 
of  the  second  part  restricts  himself  to  one  opening  on  the 
surface  on  the  south  side  of  said  farm  for  airing  and 
draining."  The  use  which  the  defendants  would  make  of 
the  surface  is  clearly  beyond  what  was  contemplated  by 
McCleery  and  Hays,  and  certainly  is  not  within  the  privi- 
leges granted  by  the  former  to  the  latter. 

The  decree  is  accordingly  affirmed,  at  appellants'  costs. 


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296  KAIER'S  ESTATE. 

Syllabus— Opinion  of  the  Court  £S64  Pa. 

Kaier's  Estate. 

Executors  and  administrators — Removal — Mismanagement— Evi- 
dence—Act  of  May  1, 1861,  P.  L.  680. 

It  must  clearly  appear  that  the  executor  is  wasting  or  mismanag- 
ing the  property  or  estate  under  his  charge,  or  that  for  any  reason 
the  interests  of  the  estate  or  property  are  likely  to  be  jeopardized 
by  the  continuance  of  the  executor,  to  warrant  his  removal  upon 
those  grounds. 

Argued  Feb.  18, 1919.  Appeal,  No.  227,  Jan.  T.,  1919, 
by  Emily  Amelia  Kaier  Schreyer  and  Crescentia  Kaier 
Kirby,  from  decree  of  O.  C.  of  Schuylkill  Co.,  re- 
fusing to  vacate  letters  testamentary  granted  to 
Charles  P.  Kaier,  and  to  remove  him  as  Executor  of 
the  Estate  of  Charles  D.  Kaier,  deceased.  Before  Brown, 
C.  J.,  Stbwabt,  Mosohziskbb,  Walling  and  Kbphabt, 
JJ.   Affirmed. 

Petition  for  removal  of  an  executor.  Before  Wil- 
hblm,  J. 

The  court  dismissed  the  petition.  Petitioners  ap- 
pealed. 

Errors  assigned,  among  others,  were  (2-5,  9, 10)  find- 
ings and  conclusions  of  the  court,  (6-8)  rulings  on  evi- 
dence, and  (10, 11)  the  decree  of  the  court. 

Edmund  D.  Smith,  with  him  J.  H.  Garrahan  and 
James  J.  Moron,  attorneys  for  appellants. 

T.  H.  B.  Lyon,  with  him  A.  D.  Entitle  and  D.  W. 
Kaercher,  attorneys  for  appellee. 

Opinion  by  Mb.  Justice  Stbwabt,  April  14, 1919: 
The  appeal  is  from  a  decree  discharging  a  rule  to  va- 
cate letters  testamentary  granted  Charles  P.  Kaier, 


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KAIER 'S  ESTATE.  297 

1919.]  Opinion  of  the  Court. 

and  remove  him  as  executor  of  the  will  of  Charles  D. 
Kaier,  deceased. 

Much  that  is  here  the  subject  of  dispute  results  from 
the  fact  that  by  the  will  of  Charles  D.  Kaier,  a  man  of 
large  and  varied  interests,  he  devised  his  entire  estate 
to  his  wife  Margaret  C.  Kaier  for  the  term  of  her  nat- 
ural life,  or  so  long  as  she  remained  his  widow,  with  this 
remainder  over,  "at  and  upon  her  decease  or  remarriage 
I  give,  devise  and  bequeath  to  same  or  so  much  as  may 
then  remain  unexpended  as  follows,  to  wit" :  This  is  fol- 
lowed by  a  devise  of  such  remainder  in  equal  parts  to 
his  six  children,  naming  them,  and  a  like  share  in  trust  for 
a  granddaughter.  By  the  will  testator  appointed  his  wid- 
ow, Margaret  C,  executrix,  a  son-in-law,  Michael  Haugh- 
ey — since  discharged — and  his  son  Charles  F.  Kaier, 
the  appellee,  executors.  The  testator  died  in  May,  1899. 
The  widow  immediately  thereupon,  acting  under  the 
power  given  her  in  the  will,  as  she  understood  the  devise, 
took  possession  of  all  the  assets  of  the  estate  and  con- 
tinued the  management  of  its  affairs,  including  the  oper- 
ation of  the  brewery  of  Charles  D.  Kaier,  Limited,  which 
constituted  a  very  large  part  of  the  estate,  in  about  the 
same  manner  the  testator  himself  had  done,  until  her 
death  in  1913.  During  this  period  she  exercised  ex- 
clusive and  unrestricted  control  over  the  estate,  con- 
verting assets  and  making  investments  at  her  pleasure. 
By  her  will  she  devised  her  entire  estate  to  four  of  the 
legatees  under  her  husband's  will,  including  this  ap- 
pellee, whom  she  appointed  one  of  her  executors.  The 
legatees  under  the  several  wills  not  being  the  same,  dis- 
pute has  arisen  between  them  as  to  the  amount  of  the 
estate  of  Charles  D.  Kaier,  left  for  distribution  at  the 
death  of  the  wife  Margaret  C,  because  of  the  latter^  ex- 
clusive management  and  control  exercised  over  the  busi- 
ness of  the  limited  partnership  of  Charles  D.  Kaier  after 
her  husband's  death.  In  that  dispute  we  have  no  reason 
to  enter  here.  The  appellee,  surviving  executor  of  the 
will  of  Charles  D.  Kaier,  has  filed  his  first  account  to 


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298  KAIEB'S  ESTATE, 

Opinion  of  the  Court.  [264  Pa. 

which  exceptions  have  been  filed  and  that  matter  is  pend- 
ing. In  that  proceeding  most  of  the  questions  raised  in 
this,  if  not  all,  can  be  promptly  and  properly  adjudicated 
if  the  parties  desire.  Instead  of  waiting  the  result  there 
to  be  obtained  appellants  have  asked  for  the  dismissal  of 
the  surviving  executor.  So  far  as  other  grounds  are 
averred,  outside  of  the  complications  between  the  two 
estates  above  mentioned,  and  which,  as  we  have  said, 
can  be  adjusted  on  the  exceptions  filed  to  the  executor's 
account,  calling  for  a  removal  of  the  appellee,  a  careful 
review  of  the  evidence  has  left  us  unconvinced  of  their 
substantiality.  The  case  has  received  very  careful  ex- 
amination at  the  hands  of  the  lower  court,  as  is  shown 
by  its  elaborate  findings  and  very  satisfactory  discus- 
sion. While  some  facts  are  developed  which,  except  as 
they  may  be  further  explained,  might  be  regarded  as 
reflecting  somewhat  upon  the  executor's  diligence  in 
office,  yet  we  are  unconvinced  that  the  dismissal  of  the 
proceeding  by  the  court  was  not  a  wise  and  prudent  exer- 
cise of  its  discretion.  Certainly  the  evidence  is  not  such 
as  to  convince  us  to  that  effect.  Referring  to  the  Act 
of  1st  May,  1861,  under  which  the  present  proceeding 
was  begun,  Shabswood,  J.,  in  reversing  a  decree  of  dis- 
missal, says  in  Parson's  Est.,  82  Pa.  465,  "It  is  a  much 
more  stringent  and  summary  process  to  remove  an  execu- 
tor, and  it  must  clearly  appear  from  the  evidence  that 
a  case  was  made  out  under  it,  and  that  the  discretion  of 
the  court  was  properly  exercised.  It  must  clearly  ap- 
pear that  the  executor  is  wasting  or  mismanaging  the 
property  or  estate  under  his  charge,  or  that  for  any  rea- 
son the  interests  of  the  estate  or  property  are  likely  to  be 
jeopardized  by  the  continuance  of  such  an  executor." 

The  exceptions  are  overruled,  and  the  decree  of  the 
court  dismissing  the  petition  is  affirmed. 


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ROBERTS,  Appellant,  v.  MOORHEAD.  299 

1919.]  Syllabus — Opinion  of  Court  below. 

Roberts,  Appellant,  v.  Moorhead. 

Witts — Construction — Devise  to  children  and  their  survivors. 

By  a  provision  in  a  will  referring  to  a  trust  fund,  "I  further 
direct  that  after  the  death  of  my  sons  and  daughters  the  same 
ghall  become  vested  in  their  respective  children  or  their  legal  rep- 
resentatives in  such  manner  and  in  such  proportions  as  my  said 
sons  and  daughters  shall  respectively  by  their  last  wills  and  testa- 
ments direct  and  appoint;  and  in  default  of  such  will  and  appoint- 
ments, shall  descend  and  vest  agreeably  to  the  laws  regulating  in- 
testate estates.  And  in  case  any  of  my  children  shall  die  without 
lawful  issue  living  at  his  or  her  death,  then  the  share  or  shares  of 
such  deceased  child  or  children  shall  be  paid  over  to  the  survivor  or 
survivors  of  them,  share  and  share  alike,"  the  testator  intended 
that  in  case  any  of  his  children  should  die  without  leaving  issue 
at  the  time  of  his  or  her  death,  the  share  of  such  child  should  be 
paid  to  the  survivor  or  survivors  of  them  immediately  upon  the 
death  of  each  son  and  daughter  as  it  occurred,  and  the  words 
"after  the  death  of  my  sons  and  daughters9'  cannot  be  taken  to  mean 
after  the  death  of  all  of  them. 

Argued  Feb.  19, 1919.  Appeal,  No.  181,  Oct.  T.,  1918, 
by  plaintiffs,  from  decree  of  C.  P.  Allegheny  Co.,  No. 
895,  Oct.  T.,  1917,  in  equity  directing  partition  of  real 
estate  in  the  case  of  Evelyn  Chew  Roberts  and  Thomas 
Roberts,  Jr.,  her  husband,  v.  Lilian  Chew  Moorhead  and 
J.  Upshur  Moorhead,  her  husband,  and  Fidelity  Trust 
Company,  Trustee  under  the  Will  of  Mary  Kerr  Coffey. 
Before  Stewabt,  Moschzisker,  Walling,  Simpson  and 
Kbphart,  J  J.    Affirmed. 

Bill  in  equity  for  partition  of  real  estate. 

The  facts  appear  in  the  following  opinion  by  Shafbr, 
P.  J.,  and  Evans,  J.,  filed  June  14, 1918,  awarding  par- 
tition: 

This  case  turns  entirely  upon  the  interpretation  to  be 
given  to  a  clause  of  the  will  of  Andrew  L.  Kerr,  who  died 
January  1, 1839,  leaving  a  widow,  and  six  children  who 
were  apparently  all  minors. 


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300  ROBERTS,  Appellant  i>.  MOORHEAD. 

Opinion  of  Court  below.  [264  Fa. 

After  making  certain  specific  dispositions  of  some  of 
his  property,  the  testator  gave  his  real  estate,  not  there- 
tofore devised  or  directed  to  be  sold,  to  trustees  in  trust 
to  receive  the  rents  and  income  and  pay  sums  theretofore 
directed  to  be  paid  for  the  maintenance  of  his  wife  and 
children  and  invest  the  residue  of  the  income  until  his 
sons  should  respectively  arrive  at  the  age  of  twenty-one 
years,  and  his  daughters  respectively  arrive  at  the  age 
of  twenty-one  or  be  married;  and  upon  the  arrival  of 
that  event  to  pay  them  their  respective  shares  of  these 
accumulations;  and  secondly,  to  pay  to  each  of  his  sons 
as  they  became  twenty-one  during  their  respective  lives, 
one  equal  share  of  the  annual  rents  of  the  real  estate; 
and  to  each  of  his  daughters  as  they  should  respectively 
arrive  at  the  age  of  twenty-one  or  be  married,  one  equal 
share  of  these  annual  rents,  with  certain  provisions  as  to 
debts  and  anticipation  of  payment.  The  will  then  con- 
tinues, "I  further  direct  that  after  the  death  of  my  sons 
and  daughters  the  same  shall  become  vested  in  their  re- 
spective children  or  their  legal  representatives  in  such 
manner  and  in  such  proportions  as  my  said  sons  and 
daughters  shall  respectively  by  their  last  wills  and  testa- 
ments direct  and  appoint ;  and  in  default  of  such  will  and 
appointment,  shall  descend  and  vest  agreeably  to  the  laws 
regulating  intestate  estates.  And  in  case  any  of  my  chil- 
dren shall  die  without  lawful  issue  living  at  his  or  her 
death,  then  the  share  or  shares  of  such  deceased  child  or 
children  shall  be  paid  over  to  the  survivor  or  survivors  of 
them,  share  and  share  alike." 

The  widow  of  the  testator  is  now  dead  and  five  of  his 
six  children  died  unmarried,  intestate  and  without  issue, 
and  Mary  Kerr,  intermarried  with  Titian  J.  Coffey,  the 
last  survivor  of  the  testator's  children,  died  in  1902,  leav- 
ing a  will  whereby  she  undertakes  to  dispose  of  the  shares 
of  her  deceased  brothers  and  sisters  under  her  father's 
will  and  as  having  vested  in  her  on  their  successive 
deaths ;  and  the  question  in  this  case  is  whether  they  did 
so  vest  as  contended  by  the  Fidelity  Trust  Company, 


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ROBERTS,  Appellant,  v.  MOORHEAD.  301 

1919.]  Opinion  of  Court  below, 

which  intervened  as  a  defendant  to  protect  its  interest 
under  the  will  of  Mrs.  Coffey  or  devolved  either  by  the 
will  or  by  the  intestate  laws,  upon  the  children  of  Mrs. 
Coffey  who  are  parties  to  the  bill. 

The  first  question  which  arises  on  examining  the  part 
of  the  will  above  quoted  is  as  to  what  is  meant  by  the 
words,  "after  the  death  of  my  sons  and  daughters." 
Standing  alone  these  words  may  be  taken  collectively  or 
distributively;  that  is,  they  may  mean  a  single  period 
after  the  death  of  all  his  sons  and  daughters,  or,  in  other 
words,  at  the  death  of  the  survivor  of  his  sons  and  daugh- 
ters; or  they  may  refer  to  the  time  after  the  death  of 
each  son  and  daughter.  In  order  to  determine  which  of 
these  the  testator  meant,  it  is  necessary  to  look  to  the 
nature  of  the  dispositions  which  are  made  to  take  effect 
upon  this  event  or  these  events.  The  testator  proceeds  to 
provide  for  three  contingencies  upon  the  death  of  his 
sons  and  daughters ;  first,  if  they  should  die  leaving  chil- 
dren and  leaving  a  will  disposing  of  the  property  among 
those  children ;  second,  if  they  should  die  leaving  chil- 
dren, but  without  such  a  will ;  and  third,  if  they  should 
die  without  leaving  children  at  all. 

It  is  very  evident  that  all  of  these  provisions  are  made 
to  refer  to  the  same  time  and  all  together  they  dispose  of 
every  possible  contingency.  The  provision  in  case  any 
of  his  children  should  die  without  issue  living  at  the 
time  of  his  death  was  that  the  share  of  such  child  should 
be  paid  to  the  survivor  or  survivors  of  them.  The  words 
"after  the  death  of  my  sons  and  daughters"  can  therefore 
not  possibly  be  taken  to  mean  after  the  death  of  all  of 
them,  or  otherwise  we  should  have  the  testator  directing 
a  share  to  be  paid  to  the  survivor  of  his  children  when 
according  to  the  hypothesis  there  could  be  no  survivor. 
It  seems,  therefore,  very  certain  that  the  provisions  as  to 
the  devolution  of  his  estate  after  the  death  of  his  sons  and 
daughters  were  intended  to  take  effect  immediately  upon 
the  death  of  each  son  and  daughter  as  it  occurred.  On 
the  other  hand,  it  seems  equally  clear  that  the  trust  cre- 


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302  EOBBETS,  Appellant,  v.  MOORHEAD. 

Opinion  of  Court  below.  [264  Pa. 

ated  by  the  will  for  the  support  of  his  children  was  in- 
tended to  last  until  the  death  of  the  last  survivor  of  them, 
as  each  one  of  them  was  entitled  to  a  share  in  the  joint 
income  of  all  the  property  involved.  When,  therefore, 
the  testator  directed  that  after  the  death  of  each  of  his 
children,  "the  same  shall  become  vested  in  their  respec- 
tive children,"  it  is  evident  that  he  intended  that  they 
should  each  take  their  share  subject  to  the  trust  while  it 
lasted;  that  is,  that  during  the  continuance  of  the  trust 
the  children  of  his  children  should  receive  the  income 
from  his  trustee,  in  other  words,  should  hold  the  land 
subject  to  the  trust.  And  this  is  what  he  means  when  he 
says  that  in  case  there  are  no  children  of  his  children 
the  share  of  each  shall  be  paid  over  to  the  survivor.  So 
long  as  the  trust  subsisted  it  would  be  properly  desig- 
nated as  a  paying  over. 

If,  instead  of  using  the  words  "paid  over,"  the  testator 
had  said  that  these  shares  should  go  or  be  given  to  the 
survivors,  or  had  used  any  similar  expression,  there 
would  seem  to  be  no  doubt  whatever  that  this  would  give 
to  the  survivors  the  same  share  which  he  intended  the 
children  of  each  of  his  children  to  have  if  they  existed. 
It  is  only  the  fact  that  the  words  "paid  over"  are  not  ap- 
propriate for  the  devolution  of  real  estate,  from  which 
any  doubt  could  arise  as  to  this  intention.  If  by  using 
these  words  he  meant  only  the  income,  then  he  died  in- 
testate as  to  the  corpus  of  each  of  the  five  shares.  There 
is  nothing  else  in  the  will  which  can  be  construed  as  dis- 
posing of  them.  He  is  not  to  be  deemed  to  have  died 
intestate  as  to  this  property  if  by  any  fair  interpretation 
of  the  will  it  can  be  avoided,  especially  where,  as  in  this 
case,  the  provisions  of  the  will  seem  to  be  intended  to  dis- 
pose of  every  case  that  may  arise. 

We  are  of  opinion  that  while  the  words  "paid  over" 
are  strictly  appropriate  only  to  the  immediate  future  as 
the  testator  viewed  it,  yet,  taking  the  whole  of  this  para- 
graph of  the  will,  it  is  sufficiently  evident  that  the 
testator  intended  to  give  to  his  surviving  children  what- 


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BOBBBTS,  Appellant,  v.  MOOBHBAD.  808 

1919.]  Opinion  of  Court  below — Arguments, 

ever  share  his  will  would  have  given  to  the  children  or 
issue  of  his  children  in  case  they  existed. 

It  is  argued  by  the  plaintiffs  that  the  clause  in  the  will 
empowering  his  executors  to  lease  or  sell  the  coal  under 
his  farm  and  to  treat  the  proceeds  as  rent,  indicates  that 
the  testator  intended  his  sons  and  daughters  should  take 
an  estate  less  than  freehold.  We  are  unable  to  see  how 
this  throws  any  light  upon  the  matter,  as  its  only  effect 
is  to  enable  the  executors  to  dispose  of  the  coal  at  any 
time  after  his  death  that  they  should  deem  proper,  and 
to  add  the  proceeds  of  it  to  the  income  which  they  were 
to  use  or  accumulate. 

We  are  therefore  of  opinion  that  one-sixth  of  testator's 
estate  at  the  date  of  each  of  testator's  children's  death 
without  issue,  passed  in  fee  to  the  survivors,  so  that  Mrs. 
Coffey,  the  last  survivor,  took  five-sixth  of  the  estate  in 
fee,  and  had  in  the  other  one-sixth  an  equitable  life  estate 
with  power  of  appointment  to  her  children. 

By  the  will  of  Mrs.  Coffey  the  five-sixths  which  we 
have  found  she  took  in  fee  was  devised  to  the  Fidelity 
Trust  Company  of  Philadelphia,  and  the  other  one-sixth 
to  the  plaintiffs  in  equal  shares.  The  plaintiffs  are  there- 
fore entitled  to  a  decree  that  the  parties  hold  together 
and  undivided;  that  Evelyn  Chew  Roberts  is  the  owner 
of  one-twelfth  of  the  lands  described  in  the  bill;  that 
Lilian  Chew  Moorhead  is  the  owner  of  one-twelfth  of  the 
land;  and  the  intervening  defendant,  the  Fidelity  Trust 
Company  of  Philadelphia,  the  owner  of  five-sixths  there- 
of;  and  that  partition  be  made  to  and  among  the  parties 
in  these  proportions,  according  to  the  practice  in  equity. 

Let  a  decree  be  drawn  accordingly. 

The  decree  was  entered  and  plaintiffs  appealed. 

Error  assigned  was  the  decree  of  the  court. 

JoHn  E.  Winner,  with  him  John  D.  Brown  and  Thomas 
M.  Brown,  for  appellants. — The  law  is  well  settled  that 
where  a  testator's  intention  is  clearly  disclosed  by  his 


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804  ROBERTS,  Appellant,  v.  MOORHEAD. 

Arguments — Opinion  of  the  Court.  [264  Pa. 

will  that  his  devisees  are  to  have  only  a  life  estate,  the 
estate  so  devised  will  not  be  enlarged  into  a  fee,  even 
though  there  be  no  limitation  over  of  the  principal: 
Shower's  Est.,  211  Pa.  297;  Slifer's  Est.  (No.  1),  54  Pa. 
Superior  Ct.  14,  affirmed  244  Pa.  289;  Gibbons  v.  Con- 
nor, 220  Pa.  395;  Deibert's  App.,  78  Pa.  296;  Stein- 
mete's  Est.,  168  Pa.  171;  Shirk's  Est.,  242  Pa.  95. 

Maurice  B.  Saul,  of  Prichard,  Saul,  Bayard  &  Evans, 
with  him  Dalzell,  Fisher  &  Hawkins,  for  appellees,  cited : 
Woelpper's  App.,  126  Pa.  562;  SiddalFs  Est.,  180  Pa. 
127. 

Pee  Curiam,  April  14, 1919 : 

We  concur  in  the  view  expressed  by  the  learned  court 
below  in  disposing  of  this  case,  that  by  the  provision  in 
testator's  will  where  he  directs  that  in  case  any  of  his 
children  should  die  without  leaving  issue  at  the  time  of 
his  death,  the  evident  intention  of  testator  was  that  the 
share  of  such  child  should  be  paid  to  the  survivor  or 
survivors  of  them ;  that  the  words  "after  the  death  of  my 
sons  and  daughters"  cannot  be  taken  to  mean  after  the 
death  of  all  of  them,  as  otherwise  we  would  have  the  tes- 
tator directing  a  share  to  be  paid  to  the  survivors  of  his 
children  when  there  could  in  the  natural  order  be  none 
surviving.  Such  other  features  of  the  will  as  provoked 
discussion  were  very  carefully  considered  and  properly 
adjudged.  Nothing  can  be  profitably  added  to  the  clear 
and  convincing  opinion  of  the  learned  court  below,  and 
on  that  opinion  the  decree  of  the  court  is  affirmed. 


Diamond  Alkali  Co.  v.  JEtna  Explosives  Co,,  Inc., 

Appellant. 

Contracts — Bale — Contract  for  buyer's  requirement  for  year- 
Monthly  deliveries  —  Maximum  and  minimum  clauses  —  Resale- 
Profits — A  ccounting. 

A  seller  is  not  entitled  to  an  accounting  for  profits  realized  upon 
the  resale  of  soda  ash  delivered  to  a  buyer,  a  manufacturing  con- 


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DIAMOND  A.  CO.  v.  JBTNA  B.  CO.,  Appellant.     305 

1919.]  Syllabus— Statement  of  Facts, 

cern,  under  a  contract  which  provided  that  the  seller  agrees  to  sell 
and  the  buyer  agrees  to  buy,  at  designated  price,  "buyer's  entire 
requirements  during  1916;  minimum  quantity  180  tons  per  month 
and  maximum  250  monthly,"  where  there  "were  no  understandings 
or  agreements  relative  to  the  contract  or  its  subject-matter  that  are 
not  fully  expressed  herein."  The  buyer  was  entitled  to  receive  the 
amount  of  soda  ash  stipulated  in  the  contract  whether  it  was  re- 
quired in  the  buyer's  business  or  not,  and  it  was,  therefore,  no  con- 
cern of  the  seller  what  the  buyer  did  with  it. 

Argued  March  3, 1919.  Appeal,  No.  164,  Oct.  T.,  1918, 
by  defendant,  from  decree  of  C.  P.  Allegheny  Co.,  No. 
661,  Oct.  T.,  1916,  in  equity,  ordering  an  accounting  in 
the  case  of  Diamond  Alkali  Co.  v.  2Etna  Explosives  Co., 
Inc.  Before  Brown,  C.  J.,  Stbwaet,  Frazbb,  Walling, 
Simpson  and  Kbphabt,  JJ.    Reversed. 

Bill  in  equity  for  an  accounting.  Before  Carpenter,  J. 

The  defendant's  third  and  fourth  requests  for  con- 
clusions of  law  and  the  answers  pf  the  court  were  as 
follows : 

"Third.  There  is  no  evidence  that  the  defendant  or- 
dered more  soda  ash  than  it  had  a  right  to  order  under  the 
contract. 

"Refused."     (4) 

"Fourth.  Under  the  contract,  the  plaintiff  was  bound 
to  deliver  to  the  defendant  and  the  defendant  was  bound 
to  accept  at  least  the  minimum  amount  of  soda  ash  called 
for  in  the  contract,  namely  180  tons  per  month,  during 
the  year  1916,  and  to  this  extent  the  contract  was  definite 
and  certain  as  to  the  quantity  of  soda  ash  contracted  for. 
Answer.  Defendant  had  the  legal  right  to  call  for  180 
to  250  tons  monthly,  provided  it  needed  that  quantity  in 
its  business  as  a  manufacturer.  Plaintiff  was  not  bound 
to  deliver  any  soda  ash  not  ordered  by  defendant."    (5) 

The  court's  second  conclusion  of  law  was  as  follows :     ' 

"Plaintiff  is  entitled  to  an  accounting  for  all  soda  ash 
delivered  to  it  by  defendant  in  excess  of  requirements  for 

Vol.  cclxiv— 20 

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306     DIAMOND  A.  GO.  v.  -JJTNA  B.  CO.,  Appellant. 

Statement  of  Facts — Opinion  of  the  Court  [264  Pa. 
manufacturing  explosives  and  for  profits  realized  from 
sale  or  other  disposition  thereof."    ( 7 ) 

The  court  entered  a  decree  requiring  defendant  to  ac- 
count to  plaintiff  for  profits  realized  from  sale  of  all 
soda  ash  received  from  the  plaintiff,  in  excess  of  defend- 
ant's requirements  in  the  manufacture  of  explosives. 

The  defendant  appealed. 

Errors  assigned  were,  among  others,  (4)  (5)  refusal 
to  affirm  defendant's  third  and  fourth  requests  for  con- 
clusions of  law;  (7)  the  court's  second  conclusion  of 
law;  (9)  the  decree  of  the  court. 

B.  J.  Jarrett,  with  him  McCook  d  Jarrett,  for  appel- 
lant.— If  the  contract  had  provided  for  the  "buyer's  en- 
tire requirements  for  the  year  1916,"  and  nothing  more,  it 
would  be  invalid  because  of  its  indefiniteness :  Crane  v. 
Crane,  105  Fed.  69. 

Oral  evidence  of  any  other  understandings  or  agree- 
ments between  the  parties  outside  of  the  written  contract 
is  incompetent :  Dimmick  v.  Banning,  Cooper  &  Co.,  256 
Pa.  301. 

Edwin  W.  Smith,  of  Reed,  Smith,  Shaw  d  Beat,  with 
him  William  M.  Robinson,  for  appellee. — The  word  "re- 
quirements," as  applied  to  a  buyer,  must  necessarily  re- 
fer to  the  commercial  necessities  or  personal  desires  of 
the  buyer,  existing  or  in  contemplation:  Lima  Loco- 
motive &  Machine  Co.  v.  National  Steel  Castings  Co.,  155 
Fed.  77. 

Opinion  by  Mr.  Chief  Justice  Brown,  April  14, 1919 : 
The  decree  brought  up  on  this  appeal  is  that  the  ap- 
pellant, the  defendant  below,  account  to  the  appellee  for 
profits  which  it  realized  on  the  sales  of  soda  ash  delivered 
to  it  by  the  appellee  in  pursuance  of  a  written  contract 
between  them,  dated  October  15, 1915.  It  is  as  follows : 
"The  Diamond  Alkali  Company  (seller)  hereby  agrees  to 


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DIAMOND  A,  GO.  v.  MTU  A  E.  CO..  Appellant.     307 
1919.]  Opinion  of  the  Court 

manufacture  for  and  sell  to  JEtna  Explosives  Company, 
New  York,  N.  Y.,  (Buyer)  and  Buyer  hereby  agrees  to 
buy  from  Seller:  Quantity:  Buyer's  entire  requirements 
during  1916 ;  minimum  quantity  180  tons  per  month  and 
maximum  250  tons  monthly.  Also  230  tons  for  shipment 
in  equal  monthly  quantities  during  November  and  De- 
cember 1915.  Kind :  58%  Light  Soda  Ash.  Shipment :  In 
carload  lots.  Price:  fl.00  per  hundred  pounds,  basis 
58%,  packed  in  bags.  If  shipped  in  bulk,  7-%c.  per  cwt 
to  be  deducted  from  above  price.  Deliveries :  F.  O.  B. 
Plainesville,  Ohio.  Terms:  Cash  in  10  days,  less  1%. 
Payable  in  New  York  or  Pittsburgh  Exchange.  Each 
shipment  to  constitute  a  separate  sale,  but  failure  of 
Buyer  to  fulfill  terms  of  payment  or  to  accept  any  ship- 
ment tendered  in  accordance  herewith  shall,  at  Seller's 
option,  operate  as  an  express  refusal  to  receive  any  and 
all  further  shipments.  Buyers  must  give  Sellers  at  least 
30  days'  notice  of  their  requirements  for  each  ensuing 
month.  Claims  for  errors,  deficiencies  or  imperfections 
must  be  made  in  writing  by  Buyer  to  Seller  within  ten 
days  after  receipt  of  goods.  Serious  fires,  strikes,  dif- 
ferences with  workmen,  accidents  to  machinery,  short- 
age of  cars  or  any  other  causes  unavoidable  or  beyond 
Seller's  reasonable  control,  shall  excuse  any  delay  in 
shipments  caused  thereby.  There  are  no  understand- 
ings or  agreements  relative  to  this  contract  or  its  sub- 
ject matter  that  are  not  fully  expressed  herein." 

The  case  was  disposed  of  below  on  bill  and  answer, 
from  which  the  learned  chancellor  found  six  facts,  the 
third  and  fifth  being  the  only  ones  material  in  consid- 
ering the  question  before  us.  They  are:  "Third.  The 
shipments  of  soda  ash,  pursuant  to  orders  from  defend- 
ant, were  less  than  the  minimum  specified  in  the  agree- 
ment." "Fifth.  Defendant  purchased  and  plaintiff  de- 
livered soda  ash  which  defendant  did  not  use  in  its  busi- 
ness as  a  manufacturer  of  explosives,  and  the  excess 
quantity  so  obtained  was  sold  by  defendant  at  a  profit." 
The  decree  was  made  on  this  last  finding,  the  court  below 


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308     DIAMOND  A.  CO.  v.  MTU  A  B.  CO.,  Appellant. 

Opinion  of  the  Court  [364  Pa. 

sustaining  the  chancellor's  construction  of  the  contract, 
that  under  it  the  appellant  could  order  only  such  quan- 
tities of  soda  ash  between  the  minimum  and  maximum 
limits  as  were  required  in  its  manufacture  of  explosives. 
There  is  not  a  doubtful  or  ambiguous  word  in  the  con- 
tract, and  its  concluding  clause  is,  "There  are  no  under- 
standings or  agreements  relative  to  this  contract  or  its 
subject  matter  that  are  not  fully  expressed  herein."  Not- 
withstanding this  explicit  declaration  by  the  parties,  the 
court  below  read  into  the  contract,  "Buyer's  entire  re- 
quirements in  its  business  as  a  manufacturer  in  1916." 
What  the  appellant's  business  was  at  the  time  the  con- 
tract was  entered  into  cannot  be  gathered  from  it.  As  a 
matter  of  fact  it  was  a  manufacturing  concern,  and  the 
requirements  of  its  business  as  a  manufacturer  during 
1916  may  not  have  been  180  tons  of  soda  ash  a  month ; 
but  whether  they  were  or  not,  it  was  bound  by  the  terms 
of  its  contract  to  take  that  quantity  from  the  plaintiff. 
The  latter  furnished  it  less.  The  minimum  and  maxi- 
mum quantities  fixed  in  the  contract  were  not  merely 
probable  estimates  of  the  quantities  which  the  appellant 
was  to  take,  as  was  the  case  in  Marx  v.  American  Malt- 
ing Company,  169  Fed.  Rep.  582,  one  of  the  authorities 
relied  upon  by  learned  counsel  for  appellee,  but  were 
definitely  fixed  quantities  which  the  appellant  could  de- 
mand and  the  appellee  was  required  to  deliver.  The 
latter  was  bound  to  hold  itself  in  readiness  to  make  ship- 
ments ordered  by  the  appellant  under  the  contract,  and 
it,  in  turn,  was  bound  to  receive  from  the  appellee  the 
minimum  quantity  contracted  for:  Dimmick  v.  Ban- 
ning, Cooper  &  Company,  256  Pa.  295.  Though  the  ap- 
pellant was  so  bound,  it  could  not,  under  the  lower 
court's  construction  of  the  contract,  resell  any  portion 
of  the  minimum  quantity  which  it  was  required  to  take, 
if  it  found  that  the  entire  quantity  was  not  actually  re- 
quired in  its  business.  There  is  no  averment  in  the  bill 
that  it  had  acted  in  bad  faith,  or  even  knew  that  its  or- 
ders, when  given,  were  in  excess  of  its  requirements. 


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DIAMOND  A.  CO.  v.  MTU  A  E.  CO.,  Appellant.     809 

1919.]  Opinion  of  the  Court 

The  mere  averment  is  that  it  had  ordered  soda  ash  in 
excess  of  its  requirements  in  its  business  of  manufactur- 
ing explosives,  and  had  resold  the  same.  The  question  of 
bad  faith  on  its  part  towards  the  appellee  is  not  to  be 
regarded  as  involved  in  this  controversy  between  them. 
Their  mutual  rights  and  obligations  under  the  contract 
are  alone  involved,  and  they  are  that  for  one  year  the  ap- 
pellee was  to  be  prepared  to  deliver,  and  the  appellant 
to  take,  not  less  than  180  tons  of  soda  ash  per  month, 
with  the  right  to  demand  70  more  each  month.  The 
right  of  each  party  to  the  contract  is  to  enforce  it  against 
the  other.  The  learned  chancellor  below,  however,  was 
of  opinion,  "If  250  tons  monthly  was  the  quantity  re- 
quired to  meet  defendant's  needs  it  could  have  called  for 
delivery  of  that  quantity ;  but  if  50  tons  were  sufficient 
it  could  not  demand  more." 

The  complaint  of  the  appellee,  sustained  by  the  court 
below,  is  that  the  appellant  perverted  the  contract  in 
reselling  what  it  was  bound  to  take  from  the  appellee. 
What  terms  in  the  contract  did  it  pervert?  What  did  it 
do  that  it  was  forbidden  to  do?  To  find  the  appellant 
guilty  of  "perversion"  of  the  contract,  as  styled  by  the 
court  below,  words  must  be  written  into  it,  in  the  face 
of  the  clearly  expressed  intention  of  the  parties  to  it 
that  there  were  to  be  "no  understandings  or  agreements 
relative  to  this  contract  or  its  subject  matter  that  are  not 
fully  expressed  herein."  Beading  of  words  into  a  con- 
tract was  attempted  in  Highland  Chemical  Company  v. 
Matthews,  76  N.  T.  145,  where  the  contract  provided  that 
the  plaintiff  should  supply  the  defendant  with  oil  of 
vitrol  for  one  year,  "total  amount  to  be  called  for  during 
that  time  to  be  not  more  than  ten  thousand  (10,000)  or 
less  than  seven  thousand  (7,000)  carboys."  The  defend- 
ant called  for  the  maximum  quantity,  which  the  plaintiff 
delivered  the  defendant  claimed  as  a  set-off  the  differ- 
f ailed  to  deliver.  In  a  suit  to  recover  for  what  had  been 
ence  between  the  market  price  and  the  contract  price  of 
what  had  not  been  delivered  to  him.    The  plaintiff  there- 


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310     DIAMOND  A.  CO.  v.  J3TNA  B.  CO.,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

upon  attempted  to  import  into  the  contract  words  to  the 
effect  that  the  acid  was  to  be  used  in  the  defendant's 
business,  and  that  he  had  therefore  no  right  to  demand 
more  than  was  required  for  that  purpose.  In  holding 
that  the  contract  could  not  be  so  construed,  the  court  of 
appeals  said:  "The  defendant  was  bound  to  take  the 
minimum  amount,  whether  he  needed  or  desired  it  for 
the  purposes  of  his  business  or  not;  and  the  correlative 
obligation  rested  upon  the  plaintiff  to  deliver  any  amount 
within  the  maximum  fixed  by  the  contract,  if  called  for 
by  the  defendant.  The  contract  of  the  plaintiff  is  not  to 
supply  an  amount  within  the  limits  named,  if  needed  by 
the  defendant  in  his  business.  To  introduce  this  quali- 
fication would  be  adding  a  new  term  to  the  contract" 
In  the  present  case  the  parties  to  the  contract  fixed 
definitely  the  quantity  of  soda  ash  the  appellant  was 
obliged  to  receive  and  the  appellee  was  obliged  to  deliver. 
It  was,  therefore,  no  concern  of  the  latter  what  the  for- 
mer may  have  done  with  what  it  was  bound  to  receive. 
If  the  price  of  the  material  had  fallen,  it  would  have 
been  compelled  to  bear  the  loss,  and  there  is  no  right  in 
the  appellee  to  an  accounting  from  it  for  what  it  did 
with  what  was  delivered  to  it  under  the  contract  between 
them. 

The  fourth,  fifth,  seventh  and  ninth  assignments  of 
error  are  sustained,  the  decree  is  reversed  and  the  bill 
dismissed  at  the  costs  of  the  appellee. 


Miller's  Estate. 


Executors  and  administrators — Mismanagement — Removal — Ex- 
aminer to  take  testimony — Petition — Answer — Discretion  of  court. 

1.  The  orphans'  court  commits  no  error  in  refusing  to  appoint 
an  examiner  to  take  testimony  in  a  proceeding  for  the  removal  of 
an  executor  for  mismanagement  of  the  estate,  where  the  executor's 
answer  •  admits  the  material  averments  in  the  petition  for  his  re- 
moval.   In  such  a  case  there  is  no  necessity  for  taking  testimony. 


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MILLER'S  ESTATE.  311 

1919.]  Syllabus — Opinion  of  Court  below. 

2.  It  cannot  be  said  that  the  court  abuses  its  discretion  in  re- 
moving an  executor  for  mismanagement  of  the  estate  where  he 
admits  that  he  had  failed  to  pay  the  debts  of  the  decedent  and  the 
taxes  levied  against  the  estate,  and  that  he  had  misappropriated  a 
portion  of  the  rentals,  made  assets  for  payment  of  debts,  and  fails 
to  make  any  satisfactory  explanation  of  his  actions. 

Argued  March  10,  1919.  Appeal,  No.  304,  Jan.  T., 
1919,  by  Frank  E.  Miller,  from  decree  of  O.  C.  Franklin 
Co.,  removing  the  appellant  from  his  office  of  Executor  in 
repetition  of  Carrie  C.  Brown,  J.  R.  Miller  and  Iola  Mil- 
ler in  the  estate  of  Annie  E.  Miller,  deceased.  Before 
Brown,  C.  J.,  Stewart,  Frazbr,  Walling  and  Simpson, 
JJ.    Affirmed. 

Petition  by  legatees  and  devisees  for  the  removal  of 
the  executor  under  the  will  of  the  decedent. 

The  facts  appear  in  the  opinion  of  the  lower  court,  by 
Gillan,  P.  J.,  filed  February  3, 1919,  which  was  as  fol- 
lows: 

The  petition  of  Carrie  C.  Brown,  J.  B.  Miller  and 
Iola  Miller  was  presented  to  us  on  the  7th  day  of  No- 
vember, 1918,  setting  forth  that  they  were  legatees  and 
devisees  under  the  will  of  the  said  Annie  E.  Miller.  The 
petition  was  accompanied  by  a  copy  of  her  will.  Of  this 
will  Frank  E.  Miller  was  appointed  the  executor.  The 
will  was  duly  probated  and  letters  testamentary  granted 
to  the  executor  named  therein.  The  prayer  of  the  peti- 
tion was  as  follows : 

"That  a  citation  be  issued  to  Frank  E.  Miller,  executor 
of  Annie  E.  Miller,  deceased,  requiring  him  to  appear 
on  a  day  certain  to  answer  the  allegations  of  the  forego- 
ing petition  and  to  show  cause,  if  any  there  be,  why  let- 
ters testamentary  issued  to  him  by  the  Register  of  Wills 
of  Franklin  County  should  not  be  vacated  and  the  said 
Frank  E.  Miller  removed  from  the  trust,  as  provided  by 
Section  53-a  of  the  Fiduciaries  Act" 

Upon  the  petition  being  presented  a  citation  was 
awarded,  returnable  in  twenty  days  after  service.   On  the 


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312  MILLBB'S  ESTATE. 

Opinion  of  Court  below.  [264  Pa. 

14th  day  of  November,  1918,  the  executor  accepted  serv- 
ice of  said  citation.  On  the  4th  day  of  December,  1918, 
the  executor  asked  and  obtained  an  extension  of  time  to 
the  15th  of  December  for  filing  of  the  answer.  On  the 
14th  of  December  an  answer  was  filed.  On  the  28th  of 
January,  1919,  counsel  for  executor  presented  a  petition 
asking  for  the  appointment  of  an  examiner  to  take  the 
testimony.  Inasmuch  as  the  answer  admits  all  the  ma- 
terial allegations  of  fact  contained  in  the  petition,  there 
can  be  no  good  purpose  served  by  the  appointment  of  an 
examiner.  We  are,  therefore,  called  upon  to  determine 
the  question  on  petition  and  answer. 

The  decedent  died  on  the  13th  day  of  October,  1917. 
The  estate  consisted  of  real  estate  appraised  at  $50,000, 
for  the  purpose  of  determining  direct  inheritance  tax; 
personal  property  at  f  1,200.  By  her  will  the  testatrix 
directed  that  her  debts  and  funeral  expenses  be  first 
paid.  She  made  this  provision  for  her  daughter,  Carrie 
C.  Brown : 

"I  give  and  bequeath  to  my  daughter,  Carrie  C.  Brown, 
my  piano,  and  what  she  desires  to  take  of  the  household 
goods  and  furniture  in  the  residence  where  I  live." 

She  directed  that  her  executor  manage  the  estate,  col- 
lect the  rents,  etc.  She  expresses  a  desire  that  the  real 
estate  be  not  sold  until  the  time  arrives  when  the  execu- 
tor deans  it  expedient  that  it  be  sold.  When  said  real 
estate  is  sold,  the  proceeds  to  be  divided  among  the 
legatees  named  in  the  will,  share  and  share  alike.  These 
petitioners  are  legatees  and  devisees  named  in  the  will. 

The  testatrix  having  died  after  the  passage  of  the  Fi- 
duciaries Act  of  7th  June,  1917,  the  rents  of  the  real 
estate  are  assets  for  the  payment  of  debts,  the  personal 
property  not  being  sufficient  for  that  purpose.  All  debts 
owing  by  a  decedent  are  to  be  paid  by  the  executor  in  the 
following  manner:  (1),  funeral  expenses;  medicine  and 
medical  attendance  during  last  illness ;  servants'  wages 
not  exceeding  one  year;   (2),  rents  not  exceeding  one 


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MILLER'S  ESTATE.  313 

1919.]  Opinion  of  Court  below, 

year;  (3),  all  other  debts  without  regard  to  the  quality 
of  the  same,  except  debts  due  the  Commonwealth. 

The  decedent  was  indebted  on  a  mortgage  to  J.  H. 
Stoner,  trustee,  in  the  sum  of  f  11,000,  with  interest  from 
April  1, 1916.  On  this  mortgage  a  sci.  fa.  has  been  issued 
since  the  death  of  testatrix  and  judgment  taken  against 
the  executor  and  legatees  for  $12,576.63,  and  costs.  The 
decedent  was  also  indebted  on  a  mortgage  in  the  sum 
of  fl,000;  also  on  another  mortgage  in  the  sum  of  $2,- 
000,  on  which  foreclosure  proceedings  are  threatened. 
The  executor  has  paid  no  interest  on  any  of  these  obli- 
gations. 

The  executor  has  received  rents  to  the  amount  of  f 2,- 
670.  The  undertaker's  bill  is  f  201 ;  cemetery  bill,  f  12.50 ; 
tax  accrued  since  the  death  of  decedent,  $430.50.  None 
of  these  have  been  paid  and  on  taxes  are  penalties  for  de- 
lay of  payment.  If  paid  promptly  from  most  of  these 
taxes  would  have  been  an  abatement  of  5  per  cent.  He 
has  neglected  to  pay  the  direct  inheritance  tax  on  the 
estate  and  that  is  bearing  interest  at  the  rate  of  12  per 
cent  per  annum. 

He  has  paid  out  to  his  father  over  |315,  No  authority 
whatever  is  shown  for  these  payments.  His  statement  is 
that  the  most  of  it  is  for  board.  The  father,  Joseph  W. 
Miller,  was  the  husband  of  Annie  E.  Miller.  He  gets 
nothing  under  the  will.  It  does  not  appear  that  he 
elected  to  take  against  the  will.  Why  the  executor 
should  pay  out  this  money,  for  which  there  is  no  warrant, 
and  allow  the  direct  inheritance  tax  to  remain  unpaid 
while  bearing  interest  at  the  rate  of  1  per  cent  per  month, 
and  allow  penalties  to  accumulate  on  the  taxes,  is  nowhere 
explained.  Certainly  this  is  not  to  the  best  interests  of  the 
estate.  He  paid  out  large  sums  of  money  for  items  which 
he  designates  as  'trips  and  supper."  There  is  no  expla- 
nation as  to  what  these  items  mean.  If  in  the  fourteen 
months'  time  a  property  which  has  rented  as  this  prop- 
erty has  the  manager  cannot  save  from  repairs  and  up- 
keep enough  to  pay  the  funeral  expenses,  etc.,  especially 


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314  MILLEB'S  ESTATE. 

Opinion  of  Court  below.  [264  Pa. 

where  part  of  these  taxes  bears  interest  at  the  rate  of  12 
per  cent  per  annum,  it  seems  to  the  court  time  to  get  a 
new  manager.  He  makes  no  explanation  as  to  the  non- 
payment of  these  things,  except  to  say  that  he  did  not 
have  the  funds.  He  makes  no  promise,  nor  does  he  hold 
out  any  hope  that  matters  will  be  better  in  the  future. 
While  he  rents  the  buildings  heated,  he  admits  that  coal, 
which  he  purchased  for  that  purpose,  has  not  been  paid 
for.  He  admits  that  the  hardware  which  he  purchased, 
presumably  for  repairs,  has  not  been  paid  for.  There  is 
no  doubt  whatever  of  his  mismanagement  of  the  estate. 
He  seeks  to  hold  the  petitioners  responsible  for  the  un- 
paid bills,  because  they  would  not  sign  a  note,  by  which 
he  could  borrow  money.  It  was  not  their  business  to 
raise  the  money.  Instead  of  acknowledging  the  rights  of 
the  petitioners  to  assert  their  position  and  complain  of 
his  management,  he  shows  a  defiant  attitude.  He  shows 
that  there  is  no  harmony  between  the  devisees  and  leg- 
atees and  the  executor.  It  will  not  take  many  years,  with 
such  management  as  his,  to  render  a  solvent  estate  in- 
solvent. 

It  is  provided  by  the  53d  section,  clause  A,  of  the 
Fiduciaries  Act,  that  the  orphans'  court  having  juris- 
diction of  the  accounts  of  executors  shall  have  power  to 
remove  such  executor,  "when  such  fiduciary  is  wasting  or 
mismanaging  the  estate  in  his  charge,"  or  "where  for  any 
reason  the  interests  of  the  estate  or  property  are  likely 
to  be  jeopardized  by  the  continuance  of  said  fiduciary." 

The  executor  who  pays  out  the  moneys  of  an  estate  for 
purposes  not  authorized  by  law  is  wasting  and  mismanag- 
ing the  estate  as  much  as  one  who  converts  the  money  of 
the  estate  to  his  own  use.  It  is  the  bounden  duty  of  the 
court  to  hold  a  fiduciary  to  a  strict  account  of  his  man- 
agement. As  we  have  before  said,  the  answer  of  the  ex- 
ecutor admits  all  of  the  material  allegations.  Instead  of 
denying,  the  executor  attempts  to  explain.  His  explana- 
tions are  very  unsatisfactory.  He,  as  we  have  before 
said,  asks  that  an  examiner  be  appointed  to  take  the  testi- 


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MILLBB'S  ESTATE.  815 

1919.]  Opinion  of  Court  below— Opinion  of  the  Court 
mony.  The  facts  being  admitted,  no  testimony  is  neces- 
sary and  the  appointment  of  an  examiner  would  only 
tend  to  greater  delay  and  give  an  opportunity  for  further 
mismanagement.  We  have  no  doubt  as  to  our  duty  in  the 
premises. 

The  court  made  a  decree  removing  the  executor  from 
his  trust.    The  executor  appealed. 

Errors  assigned  were  the  decree  of  the  court  removing 
appellant  from  his  trust  as  executor  and  refusal  of  the 
court  to  appoint  an  examiner  to  take  testimony. 

Garnet  Gehr,  with  him  John  W.  Hoke,  for  appellant. 
— The  burden  not  only  of  alleging  but  of  proving  mis- 
management and  misapplication,  was  upon  the  petition- 
ers, and  this  burden  had  to  be  borne  by  the  taking  of 
testimony:  Souder's  App.,  169  Pa.  249 ;  Shilling's  App., 
1  Pa.  90. 

The  wasting  or  mismanaging  by  an  executor  must 
clearly  appear  before  he  can  be  removed:  Simpson's 
Est,  34  Pa.  Superior  Ct.  115;  Parson's  Est.,  82  Pa.  465. 

Every  presumption  is  in  favor  of  the  honest  exercise  by 
the  executor  of  his  powers :  Chew's  Executors  v.  Chew, 
28  Pa.  17;  Williams's  App.,  73  Pa.  249;  Bailey's  Est., 
208  Pa.  594. 

Charles  Walter,  of  Walter  &  Gillan,  with  him  Watson 
B.  Davison,  for  appellee. — There  was  no  abuse  of  dis- 
cretion in  removing  the  executor:  Stambaugh's  Est., 
246  Pa.  555;  Bell's  Est.  (No.  1),  44  Pa.  Superior  Ct.  60. 

Pbb  Curiam,  April  14, 1919. 

This  appeal  is  from  an  order  of  the  court  below  remov- 
ing the  appellant  as  executor  of  the  will  of  his  mother, 
Annie  E.  Miller.  The  order  was  made  on  the  petition  for 
his  removal  and  his  answer  thereto,  and  his  main  com- 
plaint is  of  the  refusal  of  the  court  to  appoint  an  examiner 
to  take  testimony.  As  the  material  averments  in  the 
petition  for  the  removal  were  admitted  in  appellant's 


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316  MILLER'S  ESTATE. 

Opinion  of  the  Court  [264  Pa. 

answer,  there  was  no  necessity  to  take  testimony.  In 
addition  to  this  he  admitted  that  he  had  misappropriated 
a  portion  of  the  rentals,  now  made  assets  for  the  pay- 
ment of  the  debts  of  a  decedent.  In  view  of  those  admis- 
sions we  have  not  been  convinced  that  the  court  abased 
its  discretion  in  removing  the  appellant,  and  this  appeal 
is,  therefore,  dismissed  at  his  costs. 


Weisenberger  et  al.,  Appellants,  v.  Huebner  et  aL 

Specific  performance — Sale  of  real  estate — Statute  of  frauds — 
Contract — Two  or  more  writings — Act  March  81,  1772,  1  Sm.  L. 
889. 

1.  A  sale  of  real  estate  cannot  be  specifically  enforced  unless  all 
the  requisite  facts  in  regard  thereto  are  in  writing,  including  the 
absolute  identification  of  the  property. 

2.  The  requisite  facts  may  appear  in  two  or  more  papers  if  from 
any  of  them  or  from  any  other  writing  it  is  shown  they  together 
form  the  contract  of  sale. 

3.  The  writing  or  writings  must  be  signed  by  the  real  owner  if 
his  title  is  to  be  affected  thereby. 

Judgment — Equity — Decree  pro  confesso  against  trustee — Effect 
upon  equitable  owner — Defense — Statute  of  frauds. 

4.  A  decree  pro  confesso  against  a  dry  trustee,  who  holds  the 
legal  title  to  land,  does  not  prevent  the  owner  of  the  equitable 
title  from  interposing  the  statute  of  frauds  in  opposition  to  the 
enforcement  of  the  contract  as  against  him  or  his  land. 

Deeds— Delivery — Absolute — Conditional — Escrow. 

5.  A  deed  cannot  be  delivered  in  escrow  to  the  grantee  named 
therein;   such  a  delivery  is  absolute  and  not  conditional. 

Trusts — Pleading — Proof. 

6.  An  alleged  trust  in  order  to  be  available  to  a  litigant,  must  be 
both  averred  and  admitted  or  proved. 

Equity  —  Answers  to  interrogatories  —  Pleadings  —  Evidence — 
Parties. 

7.  Answers  to  interrogatories  filed  with  a  bill  in  equity  are  part 
of  the  pleadings,  and  cannot  be  offered  or  used  as  evidence  against 
other  def endanta 


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WEISENBERGER  et  aL,  AppeL,  v.  HXTEBNEB.     317 

1919.]  Statement  of  Facta— Arguments. 

Argued  March  10,  1919.  Appeal,  No.  127,  Jan.  T., 
1919,  by  plaintiffs,  from  decree  of  C.  P.  Northampton  Co., 
June  T.,  1914,  No.  1,  in  equity,  dismissing  plaintiffs' 
bill  in  case  of  Samuel  Weisenberger,  Herman  Schermer, 
Samuel  Miller  and  Solomon  Goodman  y.  Gottlieb  Hueb- 
ner,  Jacob  W.  Hagey  and  Mary  L.  Cyphers,  Executrix  of 
Harry  A.  Cyphers,  deceased.  Before  Beown,  C.  J., 
Stbwabt,  Fbazbb,  Walling  and  Simpson,  J  J.   Affirmed. 

Bill  in  equity  for  specific  performance  of  agreement  for 
sale  of  real  estate.    Before  Stbwabt,  P.  J. 

The  court  dismissed  the  bill  because  the  contract  was 
not  in  writing.    Plaintiffs  appealed. 

Errors  assigned  were,  among  others,  answers  to  plain- 
tiffs' requests  for  findings  of  fact  and  conclusions  of  law 
and  the  decree  of  the  court. 

Edward  J.  Fox  and  John  D.  Hoffman,  for  appellants. 
— The  writing  was  sufficient :  Ferguson  v.  Staver,  33  Pa. 
411;  Smith  &  Fleek's  App.,  69  Pa.  475;  M'Farson's 
App.,  11  Pa.  503;  Henry  v.  Black,  210  Pa.  245;  Title 
Guaranty  &  Surety  Co.  v.  Lippincott,  252  Pa.  112. 

Parol  evidence  can  be  admitted  and  considered  to  show 
the  negotiation  and  all  the  facts  connected  with  the  sale 
provided  it  is  not  in  conflict  with  the  written  memoran- 
dum :  Flegel  v.  Dowling,  54  Oregon  40 ;  Salmon  Falls 
Mfg.  Co.  v.  Goddard,  14  How.  (U.  S.)  446;  Jenkins  v. 
Harrison,  66  Ala.  245 ;  Nickerson  v.  Weld,  204  Mass.  346. 

W.  8.  Kirkpatrickj  of  Kirkpatrick  d  Maw  well,  for  ap- 
pellees.— When  the  law  requires  the  contract  to  be  in 
writing,  it  means  that  the  complete  contract  must  be 
proved  by  the  writing:  Soles  v.  Hickman,  20  Pa.  180; 
Hammer  &  Dauler  v.  McEldowney,  46  Pa.  334 ;  Mellon 
v.  Davison,  123  Pa.  298 ;  Agnew  v.  Southern  Ave.  Land 
Co.,  204  Pa.  192. 


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318     WBISENBBBGEB  et  aL,  Appel.,  v.  HUEBNEB. 

Opinion  of  the  Court  [264  Pa. 

Opinion  by  Mb.  Justice  Simpson,  April  14, 1919 : 

Plaintiffs  filed  a  bill  in  equity  praying  specific  per- 
formance of  an  agreement  for  the  sale  of  real  estate, 
Gottlieb  Huebner,  one  of  the  defendants,  filed  an  answer, 
a  decree  pro  confesso  was  entered  against  the  other  two 
defendants,  evidence  was  taken,  the  court  decreed  a  dis- 
missal of  the  bill  because  the  entire  contract  was  not  in 
writing  as  required  by  our  Statute  of  Frauds  of  March 
21st,  1772, 1  Sm.  Laws  389,  and  plaintiffs  appeal. 

On  November  15, 1913,  Huebner,  for  a  stated  consider- 
ation of  f  1,  conveyed  to  Harry  A.  Cyphers,  who  was  his 
attorney  and  whose  executrix  is  a  defendant,  a  property 
in  South  Bethlehem,  Penna.  For  what  purpose  the 
transfer  was  made  does  not  clearly  appear,  but  as  the 
property  was  encumbered  by  a  number  of  mortgages  and 
judgments,  and  was  liable  to  be  soon  sold  under  some  of 
them,  the  probabilities  are  the  conveyance  was  made  for 
the  purpose  of  enabling  Cyphers  to  assist  in  adjusting 
Huebner's  difficulties.  It  is  evident,  however,  that 
Cyphers  was  merely  a  dry  trustee  for  Huebner,  who  re- 
mained in  possession  of  the  property  and  made  consider- 
able improvements  to  it.  Plaintiffs'  bill  avers  that  Hueb- 
ner is  the  "owner  in  fee  simple,"  and  the  agreement  upon 
which  plaintiffs  rely  was  made  by  him  and  not  by  Cyph- 
ers, the  latter,  as  holder  of  the  record  title,  only  approv- 
ing it;  and  the  bill  prays  that  Huebner  be  required  to 
specifically  perform  the  contract. 

On  January  31,  1914,  Samuel  Weisenberger,  one  of 
plaintiffs,  paid  to  Huebner  the  sum  of  $ 2,000,  one-fourth 
of  which  was  contributed  by  each  of  plaintiffs,  and  re- 
ceived a  paper,  of  which  the  following  is  a  copy : 
"Harry  A.  Cyphers, 
"Attorney-at-Law, 
"Cor.  Fourth  Street  and  Brodhead  Ave., 
"South  Bethlehem,  Pa. 

"Jan.  31, 1914. 

"Beceived  from  Sam.  Weisenberger  by  hand  of  H.  A. 
Cyphers,  Esq.,  Two  Thousand  Dollars  down  money  on 


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WEISENBEBGER  et  aL,  AppeL,  v.  HUEBNER.     319 
1910.]  Opinion  of  the  Court. 

acct  of  purchase  price  for  property  at  3  &  Spruce.  Total 
price  |18,500.  Balance  to  be  paid  on  or  before  April 
1st,  1914,  |18,500  less  $2000*16,500. 

"Gottlieb  Huebner. 

"I  hereby  approve  of  the  within  sale. 

"Yours, 

"H.  A.  Cyphers." 

The  part  of  the  paper  above  the  date  is  Cyphers's  ordi- 
nary printed  letter-head,  and  even  if  a  court  would  be 
justified  in  assuming  therefrom  the  property  referred  to 
was  in  South  Bethlehem,  and  that  "3  &  Spruce"  meant 
3d  &  Spruce  streets  in  that  city,  the  statute  of  frauds 
would  still  apply,  for  the  receipt  does  not  specify  the 
size  of  the  property,  or  whether  it  is  at  the  corner  of  "3 
&  Spruce"  and,  if  it  is,  at  which  corner. 

To  overcome  this  difficulty,  plaintiffs  allege  the  deed 
from  Huebner  to  Cyphers,  above  referred  to,  which  was 
recorded  on  the  same  day  the  receipt  was  given,  ought 
to  be  considered  in  connection  with  it.  There  is  nothing 
stated  in  either  of  the  two  papers,  or  in  any  other  writ- 
ing, showing  that  together  they  were  intended  to  be  the 
contract  of  sale,  and  the  coincidence  of  dates  cannot  have 
the  effect  suggested,  in  the  absence  of  such  written  con- 
nection :  Llewellyn  v.  Sunnyside  Coal  Co.,  242  Pa.  517. 
It  is  also  suggested  that  the  deed  to  Cyphers  was  origi- 
nally delivered  in  escrow,  to  enable  him  to  convey  to 
whomsoever  Huebner  might  direct.  This  may  be 
true,  but  as  the  deed  was  executed  by  Huebner  and  de- 
livered to  Cyphers  two  months  before  the  negotiations 
with  plaintiffs  began,  and  Cyphers  was  a  dry  trustee  for 
Huebner,  the  order  to  make  a  deed  to  plaintiffs  would 
have  to  be  in  writing  signed  by  Huebner,  or  it  would  not 
bind  him.  No  such  written  order  is  alleged.  Indeed, 
the  receipt,  owing  to  its  inadequacy,  could  not  be  spe- 
cifically enforced  against  either  Huebner  or  Cyphers. 
Moreover,  an  escrow  is  "a  deed  delivered  to  a  stranger  to 
be  by  him  delivered  to  the  grantee  upon  the  happening 
of  certain  conditions,  upon  which  last  delivery  the  trans- 


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320     WEISENBERGER  et  ai,  Appel.,  v.  HUEBNER. 

Opinion  of  the  Court  [264  Pa. 

mission  of  title  is  complete"  (Bouvier's  Law  Dictionary, 
Rawle's  Third  Revision  1072 ) .  If  delivered  to  the  grantee 
named  in  the  deed,  the  delivery  is  not  conditional  bnt  ab- 
solute, irrespective  of  the  intention :  Simonton's  Est.,  4 
Watts  180.  Here  the  deed  was  delivered  to  Cyphers,  its 
grantee,  and  hence  the  delivery  could  not  be  in  escrow. 
It  is  then  suggested  that  the  deed  created  a  trust  which 
plaintiffs  could  enforce.  But  what  trust?  None  is 
averred  in  the  bill  or  shown  in  the  proofs,  and  it  would 
have  to  be  both  averred  and  proved  to  be  efficacious: 
Luther  v.  Luther,  216  Pa.  1 ;  Frey  v.  Stipp,  224  Pa.  390 ; 
Caveny  v.  Curtis,  257  Pa.  575. 

It  is  also  suggested  the  statute  of  frauds  is  overcome 
by  the  fact  that  Cyphers  executed  a  deed  for  the  property 
to  Weisenberger  and  showed  it  to  plaintiffs,  but  would 
not  deliver  it  because  Huebner  objected.  This  is  an 
added  proof  that  Huebner  and  not  Cyphers  was  the 
owner  of  the  property.  There  is,  moreover,  no  internal 
evidence  connecting  this  deed  with  the  agreement  above 
quoted;  and  if  there  was  the  title  of  Huebner  would  not 
pass  thereby.  This  deed  and  another  conveying  the  prop- 
erty back  to  Huebner,  were  both  found  among  Cyphers^ 
papers  after  his  death,  evidently  for  the  purpose  of  pass- 
ing the  record  title  to  whomsoever  should  be  eventually 
found  entitled  thereto. 

A  different  question  would  arise  if  the  property  re- 
ferred to  had  a  well  known  name,  as  for  instance,  the 
"Fleming  Farm  on  French  Creek":  Ross  v.  Baker,  72 
Pa.  186 ;  or  the  "Hotel  Duquesne  Property" :  Henry  v. 
Black,  210  Pa.  245 ;  but  there  is  nothing  in  the  receipt 
to  bring  it  within  that  class  of  cases.  On  the  contrary, 
it  is  within  the  class  of  Mellon  v.  Davison,  123  Pa.  298, 
where  the  description  was  "a  lot  of  ground  fronting  about 
190  feet  on  the  P.  R.  R.  in  the  21st  Ward,  Pittsburgh, 
Pa.";  and  Safe  Deposit  &  Trust  Co.  v.  Diamond  Coal  & 
Coke  Co.,  234  Pa.  100,  where  it  is  held  an  agreement  re- 
formed by  parol  so  as  to  comport  with  the  one  actually 
made,  even  if  it  then  specifies  every  essential  fact  re- 


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WBISBNBEEGEE  et  aL,  Appel.,  v.  HUEBNBE.     321 

1919.]  Opinion  of  the  Court. 

quired  by  the  statute  of  frauds,  cannot  be  the  basis  of  a 
bill  for  specific  performance,  because  as  reformed  it  is  - 
only  a  parol  agreement.  j 

It  is  suggested  also  by  plaintiffs  that  Huebner  cannot ! 
interpose  the  statute  of  frauds  as  a  defense  because  the  i 
legal  title  was  in  Cyphers,  and  a  decree  pro  confesso  was  : 
entered  against  him ;  especially  as  by  his  answers  to  the  ; 
interrogatories  filed  with  the  bill  he  admits  the  facts  re- 
lied on  by  plaintiffs,  raises  no  question  regarding  the 
statute,  and  expresses  a  willingness  to  convey  to  plain- 
tiffs.   Those  answers,  however,  are  part  of  the  pleadings 
and  not  of  the  evidence  (10  Ruling  Case  Law  421)  and 
cannot  be  used  as  evidence  against  Huebner,  who  had 
no  opportunity  to  cross-examine  Cyphers:   Eckman  v. 
Eckman,  55  Pa.  269;  Leeds  v.  The  Marine  Insurance  Co. 
of  Alexandria,  2  Wheaton  380 ;  16  Cyc.  397. 

In  no  aspect  of  the  matter,  therefore,  could  Huebner 
be  decreed  to  specifically  perform  the  contract.  He 
could  have  been  required  to  return  the  f  2,000  paid  by 
Weisenberger,  had  he  not  paid  it  into  court  to  await  the 
determination  of  the  case. 

The  decree  of  the  court  below  is  affirmed  and  the  ap- 
peal dismissed  at  the  cost  of  appellant. 


De  Marchi  v.  Central  Railroad  Co.,  Appellant. 

Practice,  Supreme  Court — Appeals — Record — Omitted  evidence 
— Review  of  rulings  affected  thereby. 

1.  Where  all  the  evidence  used  in  the  court  below  is  not  presented 
to  the  appellate  court,  rulings  which  may  have  been  affected  by 
the  omitted  evidence  cannot  be  reviewed  by  the  appellate  court. 

Negligence— Presumption  —  Common  carrier — Means  of  trans* 
portation — Appliances — Injury  to  passenger. 

2.  A  presumption  of  negligence  arises  against  a  common  carrier 
where  a  passenger  is  injured  by  reason  of  defective  appliances  or 
lack  of  appliances,  or  by  something  appertaining  to  the  means  of 
transportation. 

VOL.  CCLXIV — 21 


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322    DB  MARCHI  v.  CENTRAL  B.  B.  CO.,  Appellant, 

Syllabus — Arguments.  [264  Pa. 

Negligence — Contributory  negligence — Passenger  thrown  from 
moving  train  while  going  to  smoking  or  dining  car — Duty  of  car- 
rier to  protect  passenger — Guards  between  cars — Assumption  of 
risk. 

-3.  It  is  not  negligence  per  se  to  pass  from  car  to  car  of  a  moving 
train  in  order  to  reach  a  smoking  or  dining  car  forming  part  of 
the  train. 

4.  It  is  the  duty  of  the  carrier  to  take  necessary  precautions  to 
protect  passengers  from  injuries  while  passing  from  car  to  car 
under  such  circumstances. 

5.  Passengers  have  a  right  to  assume  the  carrier  has  performed 
its  duty  in  that  regai  J. 

6.  Passengers  knowing  of  the  absence  of  guards  or  chains  be- 
tween passenger  cars,  do  not  assume  the  risk  of  an  extraordinary 
jerk,  caused  by  a  faulty  condition  of  the  track,  when  passing  from 
car  to  car  in  order  to  reach  a  dining  or  smoking  car.  The  carrier 
is  bound  to  know  the  condition  of  the  roadbed  and  guard  against 
the  occurrence  of  such  extraordinary  jerks  due  thereto,  but  the 
passenger,  being  ignorant  of  that  condition,  is  not  bound  to  an- 
ticipate them. 

Argued  March  11,  1919.  Appeal,  No.  298,  Jan.  T., 
1919,  by  defendant,  from  judgment  of  C.  P.  Carbon  Co., 
Jan.  T.,  1917,  No.  3,  upon  a  verdict  for  plaintiff  in  the 
case  of  Filomena  R.  De  Marchi  v.  Central  Railroad  Com- 
pany of  New  Jersey.  Before  Brown,  C.  J.,  Sthwaet, 
Frazbr,  Walling  and  Simpson,  JJ.    Affirmed. 

Action  in  trespass  to  recover  damages  for  death  of 
plaintiffs  husband.    Before  Barber,  P.  J. 

Verdict  for  plaintiff  for  f  19,500.  Upon  plaintiff  remit- 
ting the  amount  of  verdict  in  excess  of  114,500  judgment 
was  entered  for  that  amount.    Defendant  appealed. 

Errors  assigned  were  (1)  the  charge  of  the  court,  quot- 
ing it  as  below,  (2)  refusing  request  for  binding  instruc- 
tions for  defendant,  (3)  overruling  defendant's  motion 
for  judgment  n.  o.  v. 

Jacob  C.  Loose,  for  appellant. — The  mere  fact  that 
guard  rails  or  chains  might  be  put  on  open-platform  cars 


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DB  MARCHI  v.  CENTRAL  R.  R.  CO.,  Appellant.    323 
1919.]  Arguments, 

to  prevent  passengers  from  falling  off,  where  none  had 
been  devised  and  there  was  no  evidence  of  any  such  hav- 
•  ing  ever  existed,  does  not  convict  the  defendant  of  negli- 
gence in  failing  to  provide  them:  Farley  v.  Phila. 
Traction  Co.,  132  Pa.  58;  Denver  &  R.  G.  R.  Co.  v.  An- 
drews, 53  Pac.  518;  Traphagen  v.  Erie  Ry.  Co.,  (N.  J.) 
64  Atl.  1072. 

A  mere  guess  or  conjecture  respecting  the  rate  of  speed 
was  not  sufficient  to  establish  it :  Smith  v.  Hohnesburg, 
etc.,  Electric  Ry.  Co.,  187  Pa.  451;  Knox  v.  P.  &  R.  Ry. 
Co.,  202  Pa.  507;  Keiser  v.  Lehigh  Valley  R.  Co.,  212 
Pa.  409;  Presser  v.  Dougherty,  239  Pa.  312. 

Where  the  injury  is  chargeable  to  the  manner  of  con- 
struction of  the  car,  the  rule  (as  to  the  presumption  of 
negligence)  does  not  apply  if  the  accident  is  to  the  pas- 
senger and  not  to  the  car :  Farley  v.  Traction  Co.,  132 
Pa.  58;  Cline  v.  Pittsburgh  Rys.  Co.,  226  Pa.  591. 

Ben  Branchy  of  Freyman,  Thomas  &  Branch,  for  ap- 
pellee.— The  mere  happening  of  an  injurious  accident 
raises,  prima  facie,  a  presumption  of  neglect,  and  throws 
upon  the  carrier  the  onus  of  showing  it  did  not  exist 
Laing  v.  Colder,  8  Pa.  479;  Meier  v.  Penna.  R.  R.  Co.,  64 
Pa.  225;  Penna.  R.  R.  Co.  v.  MacKinney,  124  Pa.  462 
Thomas  v.  P.  &  R.  R.  Co.,  148  Pa.  180;  Palmer  v.  War 
ren  St.  Ry.  Co.,  206  Pa.  574;  Fox  v.  Phila.,  208  Pa.  127 
Cline  v.  Pittsburgh  Rys.  Co.,  226  Pa.  586;   Sutton  v, 
Penna.  R.  R.  Co.,  230  Pa.  523 ;  Burns  v.  Penna.  R.  R.  Co. 
233  Pa.  304;  Fern  v.  Penna.  R.  R.  Co.,  250  Pa.  487 
Paynter  v.  Atlantic  City  R.  R.  Co.,  62  Pa.  Superior  Ct, 
455. 

The  deceased  was  not  guilty  of  contributory  negli 
gence:  McAfee  v.  Huidekoper,  34  L.  R.  A.  720;  Notes 
34  L.  R.  A.  720  and  37  L.  R.  A.  (N.  S.)  518;  Camden  Ry. 
Co.  v.  Hoosey,  99  Pa.  492 ;  Shive  v.  Phila.  &  Reading  Ry., 
235  Pa.  256;  O'Donnell  v.  Allegheny  Val.  R.  Co.,  59  Pa. 
239;  Roberts  v.  Penna.  R.  R.  Co.,  238  Pa.  404 ;  Sulgerv. 
Phila.  &  Reading  R.  R.,  245  Pa.  128. 


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324    DB  MAECHI  v.  CENTRAL  E.  E.  CO.,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

Opinion  by  Mb.  Justice  Simpson,  April  14, 1919: 
Plaintiff  sued  on  behalf  of  herself  and  her  minor  chil- 
dren to  recover  damages  for  the  negligent  killing  of  her 
husband,  the  verdict  and  judgment  were  for  plaintiff 
and  defendant  appeals. 

On  September  10,  1916,  Antonio  De  Marchi,  husband 
of  plaintiff,  was  a  passenger  on  one  of  defendant's  excur- 
sion trains  from  Jersey  City  to  Mauch  Chunk  and  return. 
The  train  consisted  of  a  fast  freight  locomotive,  followed 
in  order  by  a  combination  baggage  and  smoking  car  and 
eight  open  platform  coaches  of  the  kind  ordinarily  used 
before  vestibuled  trains  were  built.  On  the  way  to 
Mauch  Chunk,  decedent  was  in  the  third  car  from  the 
locomotive ;  he  lit  a  cigar  and  was  told  by  one  of  defend- 
ant's employees:  "You  cannot  smoke  here;  if  you  want 
to  smoke  go  into  the  first  car."  Decedent  thereupon 
went  to  the  smoking  car  and  remained  there  until  the 
train  reached  Mauch  Chunk.  On  the  return  trip  be  was 
again  in  the  third  car,  with  his  wife  and  two  children,  tie 
took  out  a  cigar  holder  and  cigar,  told  his  wife  he  was 
going  forward  to  the  smoking  car,  and  while  on  the  way 
there  he  was  thrown  from  the  platform  of  the  car  and 
killed.  At  that  time  the  train  was  traveling  rapidly, 
without  diminution  of  speed,  around  a  curve  near  Cata- 
sauqua.  The  curve  was  slightly  over  four  degrees,  and 
defendant's  witnesses  say  it  is  not  usual  to  slacken  speed 
in  passing  around  one  of  so  slight  a  curvature.  At  the 
trial  defendant  proved  the  accuracy  of,  and  offered  in 
evidence,  a  map  which  showed,  as  plaintiff  alleges,  that  at 
this  curve  there  were  crosstracks,  frogs  and  switches,  and 
that  the  curve  commenced  earlier  at  one  rail  than  at  the 
other,  thereby  making  it  a  particularly  dangerous  one, 
requiring  a  diminution  in  speed  and  care  in  rounding  it. 
She  also  alleges  defendant  was  requested  to  furnish  a 
copy  of  the  map  that  she  might  add  it  to  her  paper-book. 
It  was  not  furnished,  however,  nor  was  it  made  part  of  ' 
defendant's  paper-book  or  attached  to  the  record,  or  pre- 
sented to  this  court.    We  cannot,  therefore,  review  the 


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DB  MARCHI  v.  CBNTBAL  E.  E.  CO.,  Appellant.    325 
1019.]  Opinion  of  the  Court. 

action  of  the  court  below  on  questions  of  fact  which 
might  be  affected  by  this  map :  Robinson  v.  Fulton,  262 
Pa.  265. 

The  assignments  of  error  raise  but  two  questions.  The 
first  complains  because  the  court  below  said  that  in  the 
case  of  common  carriers  "when  an  accident  happens 
which  is  caused  by  defective  appliances  or  lack  of  ap- 
pliances, or  something  appertaining  to  the  means  of 
transportation,  then  a  presumption  of  negligence  arises, 
and  it  is  incumbent  upon  defendants  to  show  they  used 
every  precaution  which  man's  skill,  care  and  foresight 
could  provide."  It  would  be  alike  an  affectation  of 
learning  and  a  waste  of  time  and  space  to  multiply  au- 
thorities to  prove  this  statement  of  the  law  to  be  correct. 
It  has  been  so  held  at  least  since  Laing  v.  Colder,  8  Pa.  479. 

The  only  other  objections  are  because  the  court  below  re- 
fused defendant's  point  for  binding  instructions  and  dis- 
missed its  motion  for  judgment  non  obstante  veredicto, 
and  thereunder  defendant  contends  the  proof  did  not 
show  it  was  negligent,  but  did  show  decedent  was  guilty 
of  contributory  negligence.  What  we  have  already  said 
disposes  of  the  first  of  these  contentions.  Not  having  re- 
ceived all  the  evidence  which  may  have  affected  this 
question,  we  cannot  convict  the  court  below  of  error  in 
leaving  it  to  the  jury.  Defendant  certainly  was  negli- 
gent if  decedent  was  killed  by  being  thrown  from  the 
train  at  a  curve  which,  in  view  of  a  faulty  condition  of 
the  track,  it  was  dangerous  to  round  at  the  rate  of  speed 
at  which  this  train  was  traveling. 

Nor  can  we  determine  as  a  matter  of  law  the  court  be- 
low erred  in  refusing  to  give  binding  instructions  on  the 
ground  of  contributory  negligence,  unless  we  are  pre- 
pared to  say  merely  going  on  the  platform  of  the  car  was 
negligence  per  se.  This  is  not  our  view.  So  far  as  we  are 
aware,  no  well  considered  authority  so  decides  where,  as 
here,  there  was  an  implied  invitation  to  go  to  a  smoking 
or  dining  car:  See  notes  to  McAfee  v.  Huidekepper,  Re- 
ceiver, etc.,  34  L.  R.  A.  720,  and  to  Auld  v.  Southern  Ry. 


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326    DB  MARCHI  v.  CENTRAL  R.  R.  CO.,  Appellant 

Opinion  of  the  Court  [264  Pa. 

Co.,  37  L.  R.  A.  (N.  S.)  518.  Moreover,  the  question  is 
not  an  open  one  with  us. 

In  Sulger  v.  Phila.  &  Reading  Ry.  Co.,  245  Pa.  128, 
which  in  all  essential  particulars  is  similar  to  the  pres- 
ent case,  decedent,  owing  to  a  lurch  of  the  train,  was 
thrown  from  an  unguarded  platform  while  passing  to  a 
baggage  car  used  as  the  refreshment  car  of  the  train. 
We  said :  "The  passengers  had  the  right  to  assume  that 
the  railroad  company  had  done  its  duty  in  providing  a 
safe  passageway  to  the  baggage  car,  and  could  rely  on 
this  assumption  in  the  absence  of  notice  of  the  defects 
about  which  complaint  is  here  made.  There  is  no  evi- 
dence of  notice  to  the  deceased  husband  that  the  platform 
of  and  approaches  to  the  baggage  car  were  not  properly 
guarded,  or  that  the  place  was  not  safe  for  the  use  of 
passengers,  and  what  knowledge  he  had  of  existing  con- 
ditions is  a  matter  of  conjecture.  Under  all  the  circum- 
stances disclosed  by  the  testimony  the  case  is  not  so  clear 
as  to  warrant  the  court  in  declaring  as  a  matter  of  law 
that  the  deceased  husband  was  guilty  of  contributory 
negligence." 

Moreover,  as  bearing  on  both  questions,  there  is  evi- 
dence the  risk  in  this  case  was  not  an  ordinary  one. 
Plaintiffs  witnesses  say  there  was  so  violent  a  lurch  when 
the  train  struck  the  curve  at  which  decedent  was  thrown 
from  the  car,  the  ice  was  thrown  out  of  the  ice  cooler  and 
across  the  car,  and  the  passengers,  in  order  to  save  them- 
selves, had  to  hold  tightly  to  the  backs  of  their  seats,  some 
having  their  feet  thrown  from  under  them  and  up  into 
the  air.  Defendant's  engineer  testified  rounding  such  a 
curve  would  not  result  in  any  jerk  of  the  car  if  "all  con- 
ditions are  favorable."  Hence  the  jury  could  well  have 
found  the  jerk  was  an  unusual  one,  caused  by  the  con- 
dition of  the  roadbed  at  the  curve,  which  defendant,  hav- 
ing knowledge  of  the  track,  should  have  guarded  against, 
and  which  decedent,  being  ignorant  of,  was  not  required 
to  anticipate. 

The  judgment  is  affirmed. 


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YEAGER  v.  MANSEL,  Appellant.  327 

1919.]  Syllabus— Arguments. 

Yeager  v.  Mansel,  Appellant. 

Sale — Action  for  purchase-price — Promissory  notes  —  Lack  of 
title — Promise  not  to  sue  until  title  is  acquired — Claims  of  third 
persons  hatred  oy  statute  of  limitations. 

One  who  has  given  his  notes  for  the  purchase  of  lumber  cannot 
resist  payment  on  account  of  lack  of  title  in  the  seller  and  a 
promise  by  the  seller  not  to  bring  an  action  upon  the  notes  until 
he  had  acquired  title,  where  by  reason  of  lapse  of  time  any  claim 
to  the  lumber  by  any  one  is  barred  by  the  statute  of  limitations. 

Argued  March  11,  1919.  Appeal,  No.  157,  Jan.  T., 
1919,  by  defendant,  from  judgment  of  C.  P.  Lycoming  Co., 
Sept.  T.,  1917,  sustaining  motion  for  judgment  for  want 
of  sufficient  affidavit  of  defense  in  the  case  of  Sophia  M. 
Yeager,  Executrix  of  John  H.  Yeager,  surviving  partner 
of  the  copartnership  composed  of  S.  Bacon  Eilenberger 
and  John  H.  Yeager,  doing  business  under  the  firm  name 
of  Eilenberger  &  Yeager,  V.  James  Mansel.  Before 
Brown,  C.  J.,  Stbwabt,  Frazeb,  Walling  and  Simpson, 
JJ.   Affirmed. 

Assumpsit  upon  two  promissory  notes.  Before  White- 
head, P.  J. 

Judgment  for  plaintiff  for  want  of  sufficient  affidavit 
of  defense.    Defendant  appealed. 

Error  assigned  was,  among  others,  (8)  the  judgment 
of  the  court. 

Max  L.  Mitchell,  with  him  H.  W.  Pyles,  for  appellant. 
— The  bar  of  the  statute  of  limitations  is  a  mere  per- 
sonal privilege  of  which  a  debtor  may  take  advantage  or 
not,  as  he  sees  fit,  and  he  cannot  be  compelled  to  plead 
either  for  himself  or  for  the  benefit  of  others :  Biddle  v. 
Moore,  3  Pa.  161;  Barclay  v.  Barclay,  206  Pa.  307; 
Hogle  v.  DeLong  Hook  &  Eye  Co.,  248  Pa.  471. 

A  vendee  may  defend  an  action  to  recover  a  balance  of 
unpaid  purchase  money  even  though  he  continues  in  pos- 

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328  YEAGER  v.  MANSEL,  Appellant. 

Arguments — Opinion  of  the  Court.  [264  Pa. 

session:  Steinhauer  v.  Witman,  1  S.  &  R.  438;  Magaw 
v.  Lothrop,  4  W.  &  S.  316;  Knepper  v.  Kurtz,  58  Pa- 
480;  Cross  y.  Noble,  67  Pa.  74;  Stephens  t.  Black,  77 
Pa.  138. 

John  C.  Ingham,  with  him  Clarence  E.  Sprout,  for 
appellee. — In  order  to  constitute  a  defense  on  the  ground 
of  an  outstanding  title  in  another,  the  defendant  must 
show  that  he  has  suffered  an  eviction  or  loss  of  possession 
on  that  account :  Krumbhaar  v.  Birch,  83  Pa.  426 ;  Geist 
v.  Stier,  134  Pa-  216;  Morrison  v.  Whitfield,  46  Pa.  Su- 
perior Ct.  103;  Chambers  v.  Smith,  183  Pa.  122. 

Even  were  the  defendant's  title  otherwise  defective, 
the  statute  of  limitations  has  vested  in  him  an  absolute 
and  unassailable  title :  Schall  v.  Williams  Valley  R.  R., 
35  Pa.  191;  Leeds  v.  Bender,  6  W.  &  S.  315;  Altoona, 
etc.,  R.  R.  Co.  v.  Pittsburgh,  etc.,  R.  R.  Co.,  203  Pa.  102. 

The  defendant  must  use  good  faith  to  his  covenantor, 
and  he  must  set  up  every  defense  available  against  an 
outstanding  title:  McCloskey  v.  Powell,  123  Pa.  62. 

Per  Curiam,  April  14, 1919: 

The  notes  upon  which  this  action  was  brought  were 
given  by  the  defendant  to  the  payees  for  lumber  they  had 
sold  him.  He  sets  up  as  his  only  defense  lack  of  title  in 
them  to  the  timber  and  an  unkept  promise  or  agreement 
by  them  that  no  action  would  be  brought  upon  the  notes 
until  they  had  acquired  title  to  it.  He  cut  and  removed 
all  of  it  prior  to  March,  1909,  and,  after  he  had  agreed 
to  waive  the  statute  of  limitations  in  any  action  that 
might  be  brought  against  him  on  the  notes,  no  steps  were 
taken  to  collect  them  until  November  7, 1917,  when  this 
action  was  brought.  More  than  eight  years  had  elapsed 
from  the  time  the  defendant  had  cut  and  removed  the 
timber,  and  any  claim  to  it  by  any  one  was  then  barred 
by  the  statute  of  limitations.  For  this  reason  the  learned 
court  below  correctly  held  the  affidavit  of  defense  to  be 
unavailing.    In  Getty  et  al.  v.  The  Pennsylvania  Institu- 


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YEAGEft  v.  MANSEL,  Appellant  329 

1919.]  Opinion  of  the  Court. 

tion  for  the  Instruction  of  the  Blind,  194  Pa.  571,  the 
building  contract  provided  that  the  retained  percentage 
should  not  be  payable  until  all  mechanics  and  material- 
men had,  in  writing,  acknowledged  that  they  had  been 
fully  paid  by  the  contractors  for  all  work  done  and  ma- 
terials furnished.  After  the  completion  of  the  building  a 
final  installment  was  due  to  the  contractors,  who  in  the 
meantime  had  made  an  assignment  for  the  benefit  of 
creditors.  In  holding  that  this  sum  could  not  be  retained 
by  the  institution  after  the  time  for  filing  mechanics' 
liens  had  expired,  even  if  the  subcontractors  had  not 
acknowledged  that  they  had  been  fully  paid,  we  said: 
"When,  under  the  limitations  of  the  mechanic's  lien  law, 
defendant  is  beyond  peril  as  to  liens  against  its  build- 
ings and  grounds,  it  owes  a  debt,  in  such  amount  as  is 
yet  unpaid  of  the  contract  price,  personally  to  the  prin- 
cipal contractors,  which  it  is  bound  to  pay  to  the  assignee 
to  whom  the  assets  have  passed." 
Judgment  affirmed. 


Beilly,  Appellant,  v.  Erie  Railroad  Company. 

Workmen's  compensation — Finding  of  fact — Referee — Issues — 
Accident — Interstate  commerce — Review  by  court. 

1.  In  a  proceeding  under  the  Workmen's  Compensation  Act 
where  the  defendant  contends  that  the  injury  was  caused  while  tho 
workman  was  engaged  in  interstate  commerce  the  referee  should 
make  a  finding  as  tp  whether  or  not  the  injury  occurred  in  the 
course  of  interstate  employment. 

2.  No  compensation  can  he  awarded  under  the  Pennsylvania 
Workmen's  Compensation  Act  for  injury  caused  while  the  work- 
man was  engaged  in  interstate  commerce. 

8.  Where  the  referee  concluded  that  it  was  immaterial  whether 
the  accident  occurred  while  the  employee  was  engaged  in  interstate 
commerce  and  failed  to  find  whether  or  not  the  injury  occurred  in 
the  course  of  interstate  employment  the  compensation  board  upon 
appeal  should  have  held  the  conclusion  error,  and,  either  made 
findings  of  fact,  upon  a  hearing  de  novo  upon  that  issue,  or  sent 


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330  BBILLY,  Appellant,  v.  ERIE  B.  B.  CO. 

Syllabus— Opinion  of  the  Court  [264  Pa. 

the  record  back  to  the  referee  with  directions  to  make  a  finding 
based  upon  the  issues. 

4.  Upon  an  appeal  from  an  award  of  the  compensation  board  the 
findings  and  conclusions  only  are  before  the  court  for  review,  and 
where  there  are  no  findings  upon  the  controlling  points  the  court 
should  remand  the  record  to  the  board  with  directions  to  make 
findings  rather  than  decide  the  issues  from  the  evidence,  inas- 
much as  the  statute  contemplates  that  all  findings  of  fact  shall  be 
made  by  the  compensation  authorities  and  not  by  the  courts. 

Argued  March  17,  1919.  Appeal,  No.  207,  Jan.  T., 
1919,  by  claimant,  from  judgment  of  C.  P.  Susquehanna 
Co.,  Nov.  T.,  1917,  No.  105,  reversing  action  of  Work- 
men's Compensation  Board  awarding  compensation  for 
death  of  a  workman,  plaintiff's  husband,  in  the  case  of 
Sarah  E.  Reilly  v.  Erie  R.  R.  Co.  Before  Stewart, 
Fbazbb,  Moschziskbr,  Walling  and  Kbphaet,  J  J.  Re- 
versed. 

Appeal  from  decision  of  Workmen's  Compensation 
Board.    Before  Smith,  P.  J. 

The  court  reversed  the  action  of  the  compensation 
board,  which  affirmed  the  finding  of  the  referee  awarding 
compensation  for  the  death  of  the  claimant's  husband. 
Claimant  appealed. 

Errors  assigned  were  the  decree  of  the  court  and  its 
findings  of  fact. 

Thomas  A.  Doherty,  for  appellant. 

William  A.  Skinner,  for  appellee. 

Opinion  by  Mb.  Justice  Moschziskbb,  April  14, 1919 : 
Sarah  E.  Reilly,  on  behalf  of  herself  and  children, 
claimed  compensation  for  the  death  of  her  husband, 
Martin  J.  Reilly,  which  occurred  April  28,  1916,  as  the 
result  of  accidental  injuries  in  the  course  of  his  employ- 
ment with  defendant  company.  An  award  was  approved 
by  the  Workmen's  Compensation  Board ;  but,  when  the 


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BEILLY,  Appellant,  v.  ERIE  B.  B.  CO.  381 

1919.]  Opinion  of  the  Court 

record  was  removed  to  the  common  pleas,  this  was  re- 
versed, and  the  claimant  has  appealed. 

Defendant  has  contended  from  the  first  that  claimant's 
husband  was  killed  while  engaged  in  interstate  com- 
merce; but,  without  finding  any  of  the  facts  attending 
the  accident  or  those  essential  to  a  correct  understanding 
and  intelligent  determination  on  review  of  the  point 
thus  put  at  issue,  the  referee  reported  the  following  con- 
clusion :  "Whether  or  not  either  the  decedent  or  the  de- 
fendant at  the  time  the  accident  occurred  were  engaged 
in  an  act  connected  with  interstate  commerce,  the  claim- 
ants are  entitled  to  and  defendant  is  liable  for  compen- 
sation to  the  claimants,  as  provided  in  Article  III  of  the 
Workmen's  Compensation  Act  of  1915."  Of  course  this 
presents  an  erroneous  view  of  the  law :  Messinger  v.  Le- 
high Valley  E.  E.  Co.,  261  Pa.  336, 337. 

The  appeal  to  the  compensation  board  was  on  two 
grounds,  (1)  that  the  referee  erred  in  the  above-quoted 
conclusion  of  law,  and  (2)  that  he  erred  in  failing  to 
find  as  a  matter  of  fact  that  claimant's  husband  was  en- 
gaged in  interstate  commerce  at  the  time  of  the  accident ; 
but  the  board  did  not  properly  pass  upon  either  of  these 
assignments.  Instead  of  so  doing,  it  contented  itself  with 
a  meager  review  of  the  testimony,  and  the  conclusion  that 
the  referee  had  not  erred  in  failing  to  find  "claimant's  de- 
cedent was  engaged  in  interstate  commerce."  The  board 
should  have  held  that  its  referee's  ruling  as  to  the  im- 
materiality of  the  interstate  commerce  feature  of  the 
case  was  error,  and  either  found  its  own  facts,  upon  a 
hearing  de  novo,  or  sent  the  record  back  to  the  referee 
with  directions  to  state  all  the  circumstances  attending 
the  accident  essential  to  an  understanding  of  the  issues 
involved,  with  an  ultimate  finding,  based  thereon,  as  to 
whether  or  not  injury  in  the  course  of  interstate  employ- 
ment was  shown  thereby :  Flucker  v.  Carnegie  Steel  Co., 
263  Pa.  113. 

When  the  case  came  to  the  common  pleas  the  record 
was  treated,  by  mutual  mistake  of  both  court  and  conn- 


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332  BEILLY,  Appellant,  v.  ERIE  B.  B.  GO. 

Opinion  of  the  Court  [264  Pa. 

sel,  as  though  the  evidence  was  up  for  review,  when,  as 
matter  of  law,  the  findings  and  conclusions  only  were  be- 
fore that  tribunal:  McCauley  v.  Imperial  Woolen  Co., 
261  Pa.  312,  320,  321.  Since  there  were  no  findings, 
either  subordinate  or  ultimate,  upon  the  controlling 
point  discussed  in  the  opinion  of  the  court  below,  namely, 
whether  the  employer  and  employee  were  engaged  in  in- 
terstate commerce  at  the  time  of  the  accident,  the  record 
should  have  been  remanded  to  the  compensation  board 
(Leary  v.  Mcllvain,  263  Pa.  499),  with  directions 
to  see  that  such  findings  were  made  and  properly  stated 
upon  the  record :  Gurski  v.  Susquehanna  Coal  Co.,  262 
Pa.  1. 

In  Messinger  v.  Lehigh  Valley  B.  B.  Co.,  supra,  the 
referee  stated  an  ultimate  finding  that,  at  the  time  of 
the  accident,  the  "employer  and  employee  were  then  en- 
gaged in  interstate  commerce";  this  "mixed  finding  of 
fact  and  law"  (Mooney  v.  Lehigh  Valley  E.  E.  Co.,  261 
Pa.  339,  340),  from  some  aspects  a  pure  matter  of  fact 
(and  so  treated  in  Hancock  v.  P.  &  E.  Ey.  Co.,  264  Pa. 
220 ) ,  was  adopted  by  the  compensation  board,  and  the  lat- 
ter^ decision  was  affirmed  by  the  common  pleas.  On  ap- 
peal this  court,  following  the  McCauley  case,  supra,  re- 
fused to  consider  the  testimony,  and  held  that,  since  there 
were  "no  subordinate,  or  underlying,  findings"  as  to  the 
character  of  evidence  upon  which  the  ultimate  finding 
rested,  we  could  not  enter  upon  an  examination  of  the  cor- 
rectness of  the  latter,  but  would  have  to  accept  it  as  con- 
clusive; hence  we  affirmed. 

The  Messinger  case,  however,  differs  from  the  one  at 
bar  in  that  the  referee  there  found,  as  a  fact,  that  the 
accident  had  happened  in  the  course  of  interstate  com- 
merce, which  finding  was  approved  by  the  board,  where- 
as here  the  referee  erroneously  held  it  to  be  immaterial 
whether  or  not  the  accident  so  happened;  and  neither 
he  nor  the  board  made  any  finding  whatever  upon  that 
issue.  The  court  below,  under  these  circumstances,  was 
not  in  a  position  to  determine  the  controlling  point  in 


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REILLY,  Appellant,  v.  EBIE  B.  R.  CO.  333 

1919.]  Opinion  of  the  Court, 

the  case,  nor  are  we.  As  a  consequence,  since  this  is  a 
purely  statutory  proceeding,  in  which  the  relevant  acts 
of  assembly  contemplate  that  all  findings  of  fact  shall  be 
made  by  the  compensation  authorities,  the  record  must 
be  remanded  for  that  purpose ;  but,  so  as  to  minimize  the 
delay  thus  entailed,  we  have  disposed  of  this  appeal  with 
the  utmost  expedition,  and  a  like  course  should  be  pur- 
sued by  those  fixed  with  responsibility  below.  . 

The  assignments  of  error  are  sustained,  the  judgment 
is  reversed,  and  the  record  is  sent  back  to  the  common 
pleas  with  directions  that  it  forthwith  remand  so  much 
thereof  to  the  Workmen's  Compensation  Board  as  was 
sent  up  by  that  body,  the  latter  being  ordered  to  proceed 
in  accordance  with  law  and  proper  practice,  as  outlined 
in  this  opinion  and  the  relevant  authorities  herein  cited. 


Fanning,  Administratrix,  v.  The  Equitable  Life 
Assurance  Society,  Appellant. 

Evidence  —  Proof  of  death  —  Sufficiency  —  Exposure  to  peril — 
Forest  fire — Presumption  of  death — Life  insurance. 

1.  In  an  action  on  a  life  insurance  policy  the  evidence  is  suf- 
ficient to  sustain  a  finding  that  the  insured  died  in  a  forest  fire 
where  it  appeared  that  up  until  that  time  he  wrote  frequently  to 
his  mother,  sending  her  money,  that  he  earned  good  wages,  and 
was  without  financial  difficulties  and  had  a  happy,  cheerful  dispo- 
sition, and  that  when  last  seen  and  heard  of  he  said  that  he  was 
going  to  fight  the  forest  fire,  in  which  many  persons  lost  their  lives, 
some  being  burned  beyond  recognition. 

2.  Although  the  time  of  the  death  of  a  person  who  cannot  be 
found  is  presumed  to  be  seven  years  from  the  date  on  which  he  was 
last  heard  from,  the  presumption  may  be  overcome  from  facts  and 
circumstances  tending  to  show  that  his  death  probably  happened 
sooner,  as  that  he  encountered  a  special  peril  which  might  reason- 
ably be  expected  to  destroy  life. 

Argued  March  18,  1919.  Appeal,  No.  307,  Jan.  T., 
1919,  by  defendant,  from  judgment  of  C.  P.  Bradford 
Co.,  Feb.  T.,  1916,  No.  76,  upon  a  verdict  for  plaintiff  in 


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334  FANNING,  Admrx.,  v.  EQUITABLE  L.  A.  S.,  AppeL 
Statement  of  Facts — Opinion  of  the  Court.  [264  Pa. 
case  of  Nora  Fanning,  Administratrix  of  the  Estate  of 
Thomas  Fanning,  Deceased,  v.  The  Equitable  Life  As- 
surance Society  of  the  United  States.  Before  Stewart, 
Frazbr,  Moschziskbr,  Walling  and  Kbphart,  J  J.  Af- 
firmed. 

Assumpsit  upon  a  policy  of  life  insurance.  Before 
Maxwell,  P.  J. 

Verdict  for  plaintiff  for  $3,653.50  and  judgment  there- 
on.   Defendant  appealed. 

Error  assigned  was  refusal  of  defendant's  motion  for 
judgment  n.  o.  v. 

William  P.  Wilson,  with  him  J.  Roy  Lilley,  for  appel- 
lant, cited :  Globe  Accident  Ins.  Co.  v.  Gerisch,  163  111. 
625;  Burr  v.  Sim,  4  Wharton  150,  171;  Mutual  Benefit 
Co.  of  Penna.,  174  Pa.  1. 

A.  C.  Fanning,  with  him  D<wid  E.  Kaufman,  for  ap- 
pellee.— The  time  of  death  is  a  matter  of  fact  to  be  prov- 
en, and  is  not  founded  upon  a  presumption:  Modern 
Woodmen  of  America  v.  Ghromley,  L.  R.  A.,  1915,  B,  728 ; 
Connor  v.  New  York  Life  Ins.  Co.,  179  App.  Div.  (N.  Y.) 
596 ;  Davie  v.  Briggs,  97  U.  S.  628, 636 ;  Continental  life 
Ins.  Co.  v.  Searing,  240  Fed.  Rep.  653. 

Opinion  by  Me.  Justice  Moschziskeb,  April  14, 1919 : 
December  29, 1915,  suit  was  brought  by  Nora  Fanning, 
the  mother  of  Thomas  Fanning,  deceased,  and  admin- 
istratrix of  his  estate,  upon  a  contract  of  life  insurance 
issued  by  defendant  corporation;  plaintiff  recovered  a 
verdict  for  the  full  amount  claimed,  upon  which  judg- 
ment was  entered ;  defendant  has  appealed,  and  the  sole 
error  alleged  is  the  refusal  of  judgment  in  its  favor  n.  o.  v. 
The  insurance  was  for  $3,000,  face  value.  Defendant 
concedes  the  fact  that  Thomas  Fanning  is  dead,  and  the 
affidavit  of  defense  admits  liability  for  $ 546,  the  "plaid- 


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FANNING,  Admrx.,  v.  EQUITABLE  L.  A.  S.,  AppeL  885 

1919.]  Opinion  of  the  Court 

up  value"  of  the  insurance,  with  interest,  but  denies  obli- 
gation beyond  that  sum,  upon  the  theory  that  Fanning 
was  alive  until  August,  1915,  whereas  the  last  premium 
paid  continued  the  insurance  in  full  force  only  until 
January  9, 1909,  when,  because  of  default  in  payment  of 
premium  then  due,  defendant's  liability  became  reduced 
to  the  contractual  "paid-up  value"  of  the  policy;  hence 
it  is  contended  plaintiff  can  recover  only  this  reduced 
amount.  On  the  other  hand,  plaintiff  contends  there 
was  no  such  default,  because  her  son  died  in  August, 
1908,  at  which  time  all  premiums  due  had  been  fully 
paid. 

The  question  for  determination  is :  Was  the  evidence 
sufficient  in  law  to  sustain  a  finding  that  the  insured 
died,  prior  to  January  9,  1909,  while  the  policy  was  in 
force  for  its  full  amount? 

In  1901,  when  the  insurance  was  effected,  Thomas  Fan- 
ning was  a  resident  of  Sayre,  Bradford  County,  Pa. ;  in 
1906,  when  about  33  years  of  age,  he  left  his  home  for 
the  first  time,  and  went  to  Spokane,  Washington;  he 
was  unmarried,  a  stonemason  by  trade,  and  a  strong,  heal- 
thy man  who  assisted  in  the  support  of  his  mother,  which 
he  continued  to  do,  by  sending  her  money  from  time  to 
time,  after  his  departure  for  the  West;  he  earned  good 
wages,  wa«  without  financial  difficulties,  and  had  a  happy, 
cheerful  disposition ;  his  sincere  affection  for  his  mother 
was  shown  by  constant  attentions,  and  he  wrote  her  fre- 
quently while  away  from  home,  none  of  the  letters  indi- 
cating that  he  was  troubled  or  afflicted;  suddenly,  in 
August,  1908,  his  letters  ceased,  and  those  sent  to  him 
were  returned  to  the  writers,  his  mother  and  sister,  by 
the  postal  authorities,  because  they  could  not  find  the  ad- 
dressee. 

John  Fanning,  the  brother  of  Thomas,  accompanied 
him  West,  and,  later,  his  brother-in-law,  one  Dave  Cullen 
followed  them;  they  resided  in  Spokane  and  Thomas 
Fanning  and  Dave  Cullen  were  employed  together. 
Charles  Sigler,  also  of  Pennsylvania,  who  was  employed 


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336  PANNING,  Admrx.,  v.  EQUITABLE  L.  A.  S.,  AppeL 

Opinion  of  the  Court  [264  Pa. 

at  a  hotel  in  Spokane,  testified  he  was  acquainted  with 
both  Thomas  Fanning  and  Dave  Cullen;  he  often  saw 
them,  and  Fanning  used  to  talk  with  him  by  the  hour; 
in  August,  1908,  a  great  forest  fire  raged  in  the  country 
near  Spokane,  in  which  many  lost  their  lives,  some  being 
burned  beyond  recognition ;  one  Saturday  evening  about 
this  time,  the  insured  told  Sigler  that  he,  Fanning,  was 
going  to  fight  the  fire ;  although  the  witness  continued  to 
reside  in  Spokane,  and  inquired  of  Fanning's  brother, 
Cullen  and  others  who  knew  insured,  he  never  saw  nor 
heard  of  him  again.  Sigler  further  testified  that,  when 
Fanning  failed  to  return,  his  boarding  house  was  visited, 
where  his  clothes  and  mail  were  found;  but  he  never 
"showed  up"  and  all  his  acquaintances  believed  him  de- 
stroyed by  the  fire. 

While,  as  before  said,  defendant  concedes  this  testi- 
mony, with  the  lapse  of  time,  sufficient  to  prove  Fanning^ 
demise,  yet  it  contends  there  is  not  enough  therein  to 
take  the  case  out  of  the  usual  rule  that  death  must  be  con- 
sidered to  have  occurred,  not  at  the  time  of  disap- 
pearance, but  at  the  expiration  of  seven  years  thereafter. 
In  other  words,  defendant  contends  that,  since  there  is 
no  positive  evidence  that  Thomas  Fanning  actually  went 
to  the  forest  fire  in  1908,  a  finding  that  he  then  died  as  a 
result  thereof  must  be  arrived  at  through  a  presumption 
resting  upon  a  presumption,  which  the  law  does  not  per- 
mit. 

It  is  undoubtedly  the  rule  that  "one  presumption  can- 
not be  based  upon  another  presumption"  (16  Cyc.  1051; 
also  see  10  R.  C.  L.  870),  and,  "if  there  be  no  fixed  or 
ascertained  fact  from  which  the  inference  of  another 
fact  may  be  drawn,  the  law  permits  none  to  be  drawn 
from  it"  (Douglass  v.  Mitchell,  35  Pa.  440;  Tanner  v. 
Hughes,  53  Pa.  289;  McAleer  v.  McMurray,  58  Pa.  126; 
Phila.  C.  P.  R.  Co.  v.  Henrice,  92  Pa.  431) ;  but  is  this 
principle  properly  applicable  to  the  finding  of  the  jury, 
in  the  present  case,  that  Thomas  Fanning  died  in  the 
forest  fire  of  1908? 


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FANNING,  Admrx.,  v.  EQUITABLE  L.  A.  S.,  Appel.  337 
1919.]  Opinion  of  the  Court. 

The  guiding  rules,  relevant  to  the  determination  of  the 
question  just  put,  are  given  in  various  works.  In  8  E.  C. 
L.  712,  it  is  stated :  "Even  in  those  jurisdictions  where 
the  time  of  the  death  of  a  person  who  cannot  be  found  is 
presumed  to  be  seven  years  from  the  date  on  which  he 
was  last  heard  from,  the  person  to  whose  interest  it  is 
to  show  that  he  died  prior  to  that  time  may  rebut  this 
presumption  by  showing,  from  facts  and  circumstances, 
that  his  death  in  all  probability  happened  before  that 
day,  or  at  any  particular  day  between  that  time  and  the 

day  he  was  last  heard  from The  evidence  need  not 

be  direct  or  positive,  but  it  must  be  of  such  a  character 
as  to  make  it  more  probable  that  he  died  at  a  particular 
time  than  that  he  survived.  The  jury  may  infer  the  ab- 
sent person  died  before  the  expiration  of  the  seven  years, 
if  it  appear  he  encountered,  within  that  period,  some 
special  peril,  or  came  within  the  range  of  some  impending 
or  imminent  danger  which  might  reasonably  be  expected 
to  destroy  life."  In  17  Corpus  Juris  1175 :  "The  party  al- 
leging death  before  the  expiration  of  seven  years  must 

prove  it ;  thus  it  has  been  held  that,  to  warrant 

the  inference  that  death  occurred  earlier ,  there 

must  be  proof  of  such  facts  and  circumstances  connected 
with  the  absent  person  as,  when  submitted  to  the  test  of 
reason  and  experience,  would  force  the  conviction  of 
death  within  a  shorter  period ;  but,  according  to  other 
decisions,  the  presumption  of  death  before  the  expiration 
of  seven  years  may  be  raised  by  any  credible  evidence, 
however  slight."  It  is  said  in  13  Cyc.  299 :  "The  fact 
that  there  is  a  legal  presumption  of  death  after  seven 
years'  absence  does  not  prevent  an  inference  of  death 
from  absence  of  a  shorter  period  where  [there  are]  other 
circumstances  which  tend  to  force  a  conviction  that 
death  must  have  occurred,  as  that  the  person  has  en- 
countered, or  probably  encountered,  such  perils  as  might 
reasonably  be  expected  to  destroy  human  life,  and  has 
been  so  situated  that,  according  to  the  ordinary  course  of 
things,  he  must  have  been  heard  of  if  he  had  survived." 
Vol.  oclxiv— 22 

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338  PANNING,  Admrx.,  v.  EQUITABLE  L.  A.  S.,  AppeL 

Opinion  of  the  Court  [264  Pa. 
In  22  A.  &  E.  Enc.  of  Law  (2d  Ed.)  1147:  "A  presump- 
tion of  death  of  an  absentee  will  not,  as  a  rule,  arise 
from  his  absence  without  being  heard  from  for  a  shorter 
time  than  seven  years,  though  a  presumption  of  death 
may  arise  in  a  shorter  period  where  there  are  other  cir- 
cumstances tending  to  show  death  of  the  absentee,  as 
where  the  absentee,  when  last  heard  from,  was  immedi- 
ately exposed  to  some  specific  peril."  Finally,  in  Burr 
v.  Sim,  4  Wh.  149,  169,  170,  171,  speaking  by  Gibson, 
C.  J.,  we  state:  "There  is  nothing  so  frequently  unat- 
tended with  ordinary  means  of  proof,  and  yet  so  essential 
to  the  determination  of  a  right,  as  the  time  of  an  indi- 
vidual's death ;   but  the  presumption  of  death, 

as  a  limitation  of  the  presumption  of  life,  must  be  taken 
to  run  exclusively  from  the  termination  of  the  prescribed 
period  [seven  years  from  the  time  when  the  individual 
was  last  heard  of],  so  that  the  person  must  be  taken  to 
have  then  been  dead,  and  not  before It  is  undoubt- 
edly true  that  additional  circumstances  of  probability 
may   justify  a  presumption  that  the  death  was  still 

sooner;  but the  jury  [cannot]  presume  death  to 

have  been  at  an  intermediate  period  unless  we  discover 
in  the  case  at  least  a  spark  of  evidence  that  the  individual 
was,  at  some  particular  date,  in  contact  with  a  specific 
peril,  as  a  circumstance  to  quicken  the  operation  of  time. 

To  accelerate  the  presumption  from  time,  or  more 

properly  to  turn  it  from  an  artificial  into  a  natural  one, 
it  is  necessary  to  bring  the  person  within  the  range  of  a 
particular  and  immediate  danger."  See  also  Petition  of 
Mutual  Benefit  Co.,  174  Pa.  1,  5,  9. 

Prom  the  authorities  quoted,  it  may  be  seen  that  the 
relevant  rules  of  law  wisely  recognize  the  fact  that  "there 
is  nothing  so  frequently  unattended  with  ordinary  means 
of  proof  as  the  time  of  an  individual's  death,"  when  such 
individual  has  been  absent  and  unheard  of  for  a  con- 
siderable period;  hence  it  is  permitted  to  fall  back  upon 
presumptions  which  have  for  their  bases  strong  proba- 
bilities, and  these  presumptions  may  be  drawn  from  all 


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PANNING,  Admrx.,  v.  EQUITABLE  L.  A.  S.,  AppeL  339 
1919.]  Opinion  of  the  Court. 

the  relevant  facts  and  circumstances  in  each  particular 
case. 

Where  a  person,  absent  and  unheard  of  for  seven  years, 
is  presumed  to  have  died  at  the  expiration  of  that  period, 
death  is  inferred  from  lapse  of  time  and  attending  cir- 
cumstances :  Whiteside's  App.,  23  Pa.  114, 117.  The  pre- 
sumption that  the  demise  occurred  at  the  expiration  of 
the  period  does  not,  however,  constitute  an  additional 
inference  based  on  the  first  inference,  namely,  of  death 
itself,  but  is  viewed  simply  as  part  of  a  general  compre- 
hensive conclusion  that  the  person  died  at  that  time. 

Likewise,  in  that  class  of  cases  (so  many  of  which  ap- 
pear in  the  books)  where  a  person  starts  upon  a  sea 
voyage,  the  ship  never  again  being  heard  of,  and,  after  a 
reasonable  lapse  of  time,  the  law  presumes  death,  two 
presumptions  are  not  indulged  in,  i.  e.,  (1)  that  the  ves- 
sel went  down,  and  (2),  therefrom,  that  the  absentee  was 
then  drowned;  there  is  simply  a  general  presumption 
that  he  lost  his  life  at  sea  during  a  reasonable  period  al- 
lowed for  the  voyage. 

So,  in  the  present  instance,  the  finding  that  Fanning 
went  into  the  forest  fire  and  thereby  met  his  death,  need 
not  be  viewed  as  representing  two  distinct  conclusions, 
one  derived  from  the  other.  The  one,  no  doubt,  helps  the 
other,  but  both  rest  upon  the  strong  probabilities  which 
arise  from  a  consideration  of  all  the  various  facts  and 
circumstances  involved ;  which  method  of  reaching  a  de- 
termination, with  its  possible  lack  of  refined  reasoning, 
is  permissible  because  of  the  necessities  peculiar  to  this 
particular  class  of  cases.  The  verdict  rests  upon  the  evi- 
dence as  a  whole,  and  the  finding  of  Thomas  Fanning's 
death  in  1908  does  not  present  an  inference  from  an  in- 
ference, but  a  comprehensive  conclusion  justified  by  the 
facts  and  circumstances  herein  previously  detailed; 
hence  appellant's  attack  thereon  cannot  be  sustained. 

Numerous  cases  from  other  jurisdictions  have  been 
called  to  our  attention  by  counsel,  but  none  of  them 
shows  facts  analagous,  or  which  bear  any  striking  simi- 


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340  FANNING,  Admrx.,  v.  EQUITABLE  L.  A.  S.,  AppeL 

Opinion  of  the  Court  [264  Pa. 

larity,  to  those  at  bar;  therefore,  instead  of  commenting 
on  the  cases,  we  have  stated  the  general  rules  laid  down 
in  modern  standard  works,  where  the  relevant  decisions 
are  cited.  We  shall,  however,  note  a  case  from  New 
York,  the  situs  of  the  contract  here  sued  upon.  In  Con- 
nor v.  N.  Y.  Life  Ins.  Co.,  179  App.  Div.  596, 598,  defend- 
ant had  insured  the  life  of  Frederick  Winnington,  who, 
after  paying  one  premium,  disappeared  and  was  never 
heard  of  again.  On  August  11, 1914,  Winnington's  cloth- 
ing was  found  in  a  bathhouse  at  a  seaside  resort,  and 
his  personal  jewelry  was  discovered  at  the  office  of  the 
bathing  establishment,  deposited  in  an  envelope  with  his 
name  written  thereon.  There,  as  here,  suit  was  brought 
more  than  seven  years  after  insured  was  last  seen  alive, 
and,  again,  there  was  no  direct  evidence  he  had  met  his 
death  at  the  beginning  of  the  seven-year  period ;  but  the 
jury  were  allowed  to  so  find,  from  all  the  circumstances 
in  the  case.  Finally,  there,  as  here,  plaintiff  failed  to 
produce  evidence  that  anyone  had  actually  seen  the  in- 
sured at  the  place  of  the  peril  which  was  alleged  to  have 
caused  his  death.  The  case  was  dismissed  because  plain- 
tiff had  commenced  his  suit  prematurely,  without  formal 
proof  of  death;  hut,  in  so  doing,  the  judge  of  the  appel- 
late division  expressed  this  pertinent  view  of  the  law: 
"We  think  reason  and  probability  require  the  rule  be 
modified  so  that,  if  seven  years'  absence  follows  a  catas- 
trophe, occurrence  or  hazard,  whereby  the  absent  one 
was  subjected  to  peril  of  his  life  of  such  a  character  that 
the  evidence  of  his  death  might  be  destroyed  with  death 
itself — as,  for  instance,  death  in  a  conflagration  or  by 
drowning — the  inference  of  fact  may  be  drawn  that  the 
death  occurred  at  the  time  of  such  peril.  The  presump- 
tion that  the  death  occurred  at  the  end  of  the  seven 
years  obtains  only  by  the  necessity  of  the  case  in  the 
absence  of  evidence  indicating  death  at  another  time; 
when  there  is  such  evidence,  the  necessity  for  presuming 
that  death  occurred  at  the  end  of  the  period  no  longer 
exists."    That  is  to  say,  the  presumption  of  death  having 


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FANNING,  Admrx.,  v.  EQUITABLE  L.  A.  S.,  Appel.  341 
1919.]  Opinion  of  the  Court 

been  established  by  the  lapse  of  the  seven  years,  the  dis- 
covery of  the  clothes  and  valuables  of  insured  in  a  bath- 
house, at  the  beginning  of  that  period,  with  all  the  at- 
tendant circumstances,  was  sufficient  to  sustain  a  finding 
that  death  had  actually  taken  place  at  the  last-mentioned 
time. 

The  assignments  of  error  .are  overruled  and  the  judg- 
ment is  affirmed. 


McGrath  v.  Atlantic  Refining  Company,  Appellant. 

Negligence — Master  and  servant — Improper  tools — Complaint  as 
to  tools — Belying  on  master's  judgment — Obvious  danger — Failure 
io  instruct-*-Case  for  jury. 

1.  While  an  employee  assumes  all  obvious  risks  incident  to  his 
employment,  if  the  -work  or  appliance  is  not  imminently  or  in- 
evitably dangerous,  his  dependent  position  will  be  taken  into  con- 
sideration, and,  if  given  positive  orders  to  proceed  with  his  work, 
when  complaint  is  made  as  to  the  defective  and  unsafe  condition 
of  tools  or  appliances,  he  is  not  bound  to  set  up  his  judgment 
against  that  of  his  superior,  but  may  rely  on  the  assurance  of  the 
latter  that  there  is  no  danger. 

2.  A  master  is  presumed  to  know  the  probable  results  from  the 
use,  by  an  uninstructed  workman,  of  unfit  tools  in  work  that  is 
likely  to  cause  an  accident,  and  when  he  knows  or  should  know  their 
condition,  he  will  be  responsible  for  injury  resulting. 

3.  In  an  action  by  an  employee  of  an  oil  refining  company  to  re- 
cover damages  for  personal  injuries,  a  judgment  on  a  verdict  for 
plaintiff  will  be  sustained,  where  the  evidence  shows  that  plaintiff 
was  employed  as  an  unskilled  laborer  loading  barrels  on  steamers, 
that  he  was  ordered  from  this  work,  and  directed  to  knock  iron 
hoops  from  barrels;  that  this  work  required  some  skill,  and  was 
the  work  of  a  cooper;  that  he  was  given  no  instruction;  that  in 
using  a  hammer  in  this  work,  he  found  that  it  was  defective,  and 
complained  to  the  foreman;  that  the  latter  said  "you  will  have  to 
use  it;  that  is  all  we  got  at  this  timeP;  and  that  afterwards,  in 
striking  with  the  hammer,  a  piece  of  steel  was  knocked  off  a  hoop, 
and  imbedded  itself  in  plaintiff's  eye,  destroying  the  sight. 

Argued  Jan.  13,  1919.  Appeal,  No.  54,  Jan.  T.,  1918, 
by  defendant,  from  judgment  of  C.  P.  No.  1,  Philadelphia 


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342  McGRATH  v.  ATLANTIC  REFINING  CO.,  AppeL 

Statement  of  Facts — Arguments.  [264  Pa. 

Co.,  Dec.  T.,  1914,  No.  631,  on  verdict  for  plaintiff  in  case 
of  John  McGrath  v.  Atlantic  Refining  Company.  Be- 
fore Brown,  C.  J.,  Moschziskbb,  Frazbr,  Walling  and 
Kephart,  JJ.    Affirmed. 

Trespass  to  recover  damages  for  personal  injuries. 
Before  Patterson,  J. 

Verdict  and  judgment  for  plaintiff  for  $3,250.  De- 
fendant appealed. 

Error  assigned  was  in  refusing  judgment  for  defend- 
ant n.  o.  v. 

Francis  Shunk  Brown,  with  him  Frank  A.  Chalmers 
and  Ira  Jewell  Williams,  for  appellant. — If  defendant 
furnished  plaintiff  with  tools  in  ordinary  use  in  the  busi- 
ness, it  has  fulfilled  its  duty :  Titus  v.  Bradford,  etc.,  R. 
R.  Co.,  136  Pa.  618;  Cunningham  v.  Fort  Pitt  Bridge 
Works,  197  Pa.  625;  Keenan  v.  Waters,  181  Pa.  247; 
Service  v.  Shoneman,  196  Pa.  63 ;  Higgins  v.  Fanning, 
195  Pa.  599;  Shaffer  v.  Haish,  110  Pa.  575;  Fick  v. 
Jackson,  3  Pa.  Superior  Ct.  378;  Northern  Cent.  R.  R. 
Co.  v.  Husson,  101  Pa.  1. 

There  is  no  duty  on  the  part  of  a  master  to  warn  a  serv- 
ant as  to  an  unknown  latent  danger :  Merchant  v.  Smith 
Brewing  Co.,  140  Pa.  448 ;  Lehman  v.  Carbon  Steel  Co., 
204  Pa.  612;  Ruger  v.  Coatesville  Boiler  Works,  257  Pa. 
252. 

If  there  was  any  danger  in  using  the  tool,  it  must  have 
been  better  known  to  the  plaintiff  than  to  anyone  else: 
Talbot  v.  Sims,  213  Pa.  1 ;  Wochner  v.  Pa.  Engineering 
Works,  251  Pa.  188. 

After  a  complaint  and  a  promise  to  remedy,  plaintiff 
assumes  the  risk  of  his  employment  if  he  saw  that  the 
defect  was  not  remedied  upon  his  going  to  work  the  next 
day :  Clader  v.  Gangewere,  63  Pa.  Superior  Ct.  174. 

Arthur  Eagen  Miller,  with  him  Michael  Francis  Doyle, 
for  appellee. — The  case  was  for  the  jury:  Finnerty  v. 


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McGRATH  v.  ATLANTIC  REPINING  CO.,  AppeL  343 
1910.]  Arguments — Opinion  of  the  Court. 

Burnham,  205  Pa.  305 ;  Beady  v.  Smith  &  Furbush,  etc., 
Co.,  51  Pa.  Superior  Ct.  294;  Carr  v.  General  Fire  Ex- 
tinguisher Co.,  224  Pa.  346;  Porter  v.  Wilson,  62  Pa. 
Superior  Ct.  339 ;  Gross  v.  Westinghouse  Air  Brake  Co., 
70  Pa.  Superior  Ct.  260;  Fullick  v.  South  Penn  Oil  Com- 
pany, 260  Pa.  4;  Bannon  v.  Lutz,  158  Pa.  166;  Donnelly 
v.  Lehigh  Nav.  Elec.  Co.,  258  Pa.  580 ;  Van  Duzer  v.  Com. 
Tel.  Co.,  236  Pa.  538;  Bolles  v.  Erie  B.  B.  Co.,  70  Pa.  Su- 
perior Ct.  64. 

Opinion  by  Mb.  Justice  Kbphabt,  April  21, 1919 : 
The  appellee  was  employed  as  an  unskilled  laborer  at 
appellant's  oil  refinery.  His  duties  were  to  take  empty 
barrels  from  large  piles  or  stacks  and,  when  refilled  with 
oil,  transfer  them  to  a  ship.  He  was  ordered  from  this 
work  and  detailed  to  knock  the  iron  hoops  off  barrels  to 
facilitate  the  removal  of  the  heads.  In  doing  this,  he 
used  a  tool  known  as  a  driver,  constructed  somewhat 
like  a  hammer,  with  a  groove  running  "lengthwise  in  the 
center  of  its  edge."  It  was  placed  against  the  iron  hoop, 
the  groove  fitting  against  the  rim,  then  repeatedly  struck 
by  a  hammer  until  the  hoop  would  loosen.  The  work 
was  usually  done  by  a  cooper,  and  required  a  certain 
amount  of  skill.  The  appellee  was  not  instructed  how  the 
work  should  be  done,  or  how  to  use  the  tools.  He  com- 
plained about  the  tools  the  first  day  he  was  at  this  work ; 
the  driver  would  not  hold,  and  the  tools  were  "on  the 
bum."  The  driver  was  all  battered  and  scaly  and  the 
groove  "busted" ;  chips  of  steel  would  sometimes  fly  off 
the  head  of  the  hammer  and  strike  him  in  the  face.  Ftn- 
nerty,  a  fellow  workman,  stated  that  one  experienced 
with  the  use  of  the  tools  could  tell,  from  the  head  of  the 
driver,  it  was  not  fit  to  do  the  work — a  cooper  could  not 
use  it,  and  a  cooper,  no  doubt,  had  laid  it  aside;  it  was 
an  old,  unfit  tool.  He  heard  the  appellee  complain  to  the 
foreman  about  its  condition,  who  said :  "Well,  you  will 
have  to  use  them.  That  is  all  we  got  at  the  present  time. 
Tou  must  use  them."    In  striking  the  driver,  a  piece  of 

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344  McGRATH  v.  ATLANTIC  REFINING  CO.,  AppeL 

Opinion  of  the  Court  [264  Pa. 

steel  was  knocked  off  and  embedded  in  the  appellee's  eye, 
destroying  the  sight.  He  recovered  a  verdict  for  the  dam- 
age suffered  upon  which  a  judgment  was  entered;  hence 
this  appeal. 

The  negligence  charged  was  the  failure  to  furnish  "suf - 
ficient  and  proper  tools  and  implements/'  and  to  in- 
struct an  inexperienced  workman  in  his  duties,  so  that 
dangers  of  which  he  had  no  knowledge,  or  reason  to 
apprehend,  might  be  avoided.  It  is  the  continuous  duty 
of  the  master  to  furnish  his  employees  with  reasonably 
safe  tools,  machinery  and  appliances,  and,  if  performed, 
by  a  proper  and  diligent  inspection  to  ascertain  defects 
or  their  suitability.  If  this  duty  is  performed  by  another 
delegated  to  provide  tools  for  the  master,  his  neglect  will 
be  chargeable  to  the  master  and  the  foreman's  direction 
to  continue  their  use  must  be  regarded  as  the  master's 
direction :  Garrison  v.  Armstrong  &  Co.,  248  Pa.  402 ; 
Porter  v.  Wilson,  62  Pa.  Superior  Ct.  339.  It  is  not 
seriously  contended  that  the  tools  were  fit,  as  the  fore- 
man, who  had  every  opportunity  to  know,  does  not  pre- 
tend they  were.  The  tools  here  provided  were  not  com- 
mon tools,  in  ordinary  use,  with  which  every  person  of  in- 
telligence is  presumed  to  be  familiar.  They  were  simple 
to  those  having  the  required  skill  and  knowledge  of  their 
use.  They  were  designed  to  be  used  in  a  special  manner 
by  a  man  sufficiently  familiar  with  the  work,  as,  for  in- 
stance, as  here  indicated,  a  cooper.  Whether  the  employ- 
er neglected  to  select  tools  that  could  be  used  with  rea- 
sonable safety  under  the  circumstances  was  for  the  jury : 
Protosenia  v.  Brothers  Valley  Coal  Co.,  251  Pa.  175; 
Allison  v.  Pitz  Water  Wheel  Co.,  250  Pa.  111.  Had  the 
tools  been  generally  used  by  all  classes  of  workmen  and 
the  work  to  be  done  such  that  persons  of  ordinary  intel- 
ligence would  be  presumed  to  know  how  to  do  it,  there 
would  be  no  necessity  for  the  master  to  give  instructions. 
But,  under  the  facts,  we  cannot  say  as  a  matter  of  law 
that  such  instruction  was  unnecessary ;  for  the  evidence 
shows  that  had  the  tool  been  held  in  a  certain  way  the 


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McGRATH  v.  ATLANTIC  REFINING  CO.,  AppeL  345 
1910.]  Opinion  of  the  Court, 

chips  or  slivers  coming  from  it  would  strike  the  operator 
on  the  arm,  not  in  the  face.  The  appellant  did  not  know 
this  because  he  was  not  informed  how  the  work  should 
be  done.  A  simple  tool  may  become  dangerous  in  the 
hands  of  an  inexperienced  workman  and  it  is  the  duty 
of  the  master  to  instruct  the  employee  where  instructions 
are  necessary;  that  matter  is  ordinarily  for  the  jury,  un- 
less the  services  to  be  performed  are  simple,  when  it  be- 
comes a  question  of  law  for  the  court.  The  master  is  pre- 
sumed to  know  the  probable  results  from  the  use,  by  an 
uninstructed  workman,  of  unfit  tools  in  work  that  is 
likely  to  cause  an  accident  and,  when  he  knows,  or  should 
know,  their  condition,  he  will  be  responsible  for  injury 
resulting :  Newton  v.  Vulcan  Iron  Works,  199  Pa.  646. 

In  Jones  v.  Burnham,  217  Pa.  286,  relied  on  by  the  ap- 
pellant, the  injured  person  was  as  good  a  judge  of  the 
safety  of  the  tool;  neither  his  foreman  nor  he  re- 
garded it  as  dangerous.  The  tool  was  not  shown  to  the 
foreman,  nor  had  he  an  opportunity  to  discover  it  was 
dangerous  or  unfit  for  use.  If  there  were  any  danger 
from  using  the  tool,  it  was  better  known  to  the  person 
injured  than  to  any  one  else.  The  servant  was  presumed 
to  have  notice  of  risks  which  to  a  person  of  his  experience 
and  understanding  are,  or  ought  to  have  been,  open  and 
obvious. 

While  the  employee  assumes  all  obvious  risks  incident 
to  his  employment,  if  the  work  or  appliance  is  not  im- 
minently or  inevitably  dangerous,  his  dependent  position 
will  be  taken  into  consideration,  and,  if  given  positive 
orders  to  proceed  with  his  work  when  complaint  is  made 
as  to  the  defective  and  unsafe  condition  of  the  tools  or 
appliances,  he  is  not  bound  to  serup  his  judgment 
against  that  of  his  superior,  but  may  rely  on  the  assur- 
ances of  the  latter  that  there  is  no  danger  which  must 
come  from  the  instruction  narrated  above:  Reese  v. 
Clark,  198  Pa.  312-319 ;  Porter  v.  Wilson,  supra.  His  in- 
experience in  the  work  accounts  for  his  inability  to  ap- 
preciate the  possible  dangers,  which,  in  a  person  of  un- 


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346  McGRATH  v.  ATLANTIC  REPINING  CO.,  AppeL 

Opinion  of  the  Court  [264  Pa. 

derstanding,  would  have  constituted  contributory  negli- 
gence. While  pieces  of  steel  occasionally  came  in  con- 
tact with  his  face,  a  skillful  operator  could  have  avoided 
them,  and  the  danger  was  not  so  apparent  that  the  court 
could  say,  as  a  matter  of  law,  that  he  should  have  known 
that  a  piece  might  strike  him  with  sufficient  force  to  in- 
flict the  injury  received.  Had  he  been  instructed  how  to 
hold  the  tool,  no  doubt  the  injury  would  not  have  re- 
sulted. He  had  been  at  work  a  day  and  a  half  when  the 
accident  occurred.  It  was  for  the  jury  to  determine, 
under  all  the  evidence,  whether  he  should  have  known  the 
probable  effect  of  a  few  pieces  of  steel  flying  around  him : 
Broce  v.  Seaboard  Construction  Co.,  263  Pa.  184. 

The  assignments  of  error  are  overruled  and  the  judg- 
ment is  affirmed. 


Hawkes,  Appellant,  v.  Philadelphia. 

Road  law — Unopened  streets — Deed— Implied  easement  of  right- 
of-way — Presumption — Res  gestae  —  Rebuttal — Estoppel — Bound- 
aries—Dedication— Damages— Act  of  May  9, 1899,  P.  L.  178. 

1.  Where  land  is  conveyed  bounded  by  an  unopened  street  pro- 
jected by  a  municipality,  the  grantee  by  implication  acquires  an 
easement  over  the  bed  of  that  street,  unless  the  circumstances  at- 
tending the  conveyance  and  the  description  of  the  grant  negative 
such  implication.  Such  act  is  in  no  sense  a  dedication,  nor  does 
the  owner  covenant  that  the  municipality  shall  in  the  future  open 
that  street.  The  lot  is  sold  subject  to  a  possible  relinquishment,  by 
the  municipality,  of  its  right  to  open;  but,  if  it  does  open  the  street 
for  public  use,  whatever  covenant  springs  from  the  conveyance  of 
a  lot  so  bounded,  is  executed  when  the  street  is  actually  opened  as 
a  street.  The  "attending  circumstances"  which  defeat  the  impli- 
cation of  a  covenant  or  easement  must  be  gathered  from  the  in- 
strument conveying  the  land,  and  the  res  gestae  of  the  transaction. 

2.  When  the  city  relinquishes  its  right  to  open  by  proper  mu- 
nicipal action,  one  of  the  inducing  features  held  out  to  the  grantee 
to  purchase  disappears  but  the  implied  contract  or  easement  of  a 
way  from  the  lot  as  between  grantor  and  grantee  is  not  destroyed. 
It  is,  however,  limited  to  such  way  as  may  be  reasonably  necessary 


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HAWKES,  Appellant,  v.  PHILADELPHIA.        347 

1919.]  Syllabus — Arguments, 

to  the  enjoyment  of  the  lot  or  lots  sold,  corresponding:  in  its  es- 
sential requirements  to  the  street  named  in  the  deed.  The  grantor 
and  his  assigns  are  estopped  from  asserting  the  contrary. 

8.  In  a  proceeding  against  the  City  of  Philadelphia  to  assess 
damages  for  the  value  of  a  piece  of  land  forming  the  northern  half 
of  the  bed  of  Arch  street  between  two  streets  named.  The  court  will 
direct  judgment  against  the  plaintiff  where  it  appears  that  prior  to 
May  21,  1858,  the  portion  of  Arch  street  was  plotted  on  the  city 
plans,  but  not  opened;  that  on  May  21,  1858,  the  owner's  prede- 
cessor in  title  conveyed  the  land  north  of  Arch  street,  describing  it 
as  beginning  at  a  point  in  the  north  line  of  Arch  streets,  and  ex- 
tending along  the  north  side  of  said  street,  etc.;  that  later  in  the 
same  year  he  conveyed  to  another  party  the  land  on  the  south 
side  of  Arch  street,  describing  it  as  running  eastwardly  along  the 
middle  line  of  Arch  street;  that  in  1910,  when  the  city  authorized 
the  opening  of  the  northern  half  of  Arch  street,  the  southern  half 
was  used  as  a  street  by  the  public,  and  that  the  parties  agreed  of 
record  that  the  northern  half  of  the  street  subject  to  an  implied 
covenant  for  easement  of  right-of-way,  was  valueless. 

4.  The  Act  of  May  9, 1889,  P.  L.  178,  which  provided  that  streets 
laid  out  on  plans  of  lots,  but  not  opened  for  twenty-one  years  next 
after  the  laying  out  of  the  same  should  not  be  opened  without  the 
consent  of  the  owner,  does  not  apply  where  a  portion  of  the  width 
of  the  street  has  been  used  by  the  public  within  the  twenty-one 
years. 

Argued  Jan.  16, 1919.  Appeal,  No.  93,  Jan.  T.,  1919, 
by  plaintiff,  from  judgment  of  0.  P.  No.  4,  Philadelphia 
Co.,  June  T.,  1912,  No.  3628,  for  defendant  n.  o.  v.,  in 
case  of  Thomas  G.  Hawkes  v.  Philadelphia.  Before 
Brown,  C.  J.,  Pbazbb,  Walling,  Simpson  and  Kbphabt, 
JJ.    Affirmed. 

Appeal  from  award  of  jury  of  view.  Before  Finlet- 
ter,  J. 

Verdict  for  plaintiff  for  $2,600.  The  court  entered 
judgment  for  defendant  n.  o.  v.    Plaintiff  appealed. 

Error  assigned  was  in  entering  judgment  for  defend- 
ant n.  o.  y. 

Edwin  0.  Lewis,  for  appellant. — We  regard  the  case  as 
identical  in  facts  with  Neely  v.  Phila.,  212  Pa.  551,  and 


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348        HAWKES,  Appellant,  v.  PHILADELPHIA. 

Arguments — Opinion  of  the  Court.  [264  Pa. 

look  upon  the  question  of  law  as  being  decisively  ruled 
in  favor  of  the  appellant  by  the  decisions  in  the  Neely 
case,  in  Fitzell  v.  Phila.,  211  Pa.  1,  and  in  the  following 
cases  subsequently  decided :  Tesson  v.  Porter  Company, 
238  Pa.  504;  Shetter  v.  Welzel,  242  Pa.  355;  Bell  v. 
Pittsburgh  Steel  Company,  243  Pa.  83;  Henderson  v. 
Young,  260  Pa.  334;  Bellefleld  Avenue,  2  Pa.  Superior 
Ct.  148;  Pelin  v.  Phila.,  241  Pa.  164. 

The  Act  of  May  9, 1889,  P.  L.  173,  applies :  Quicksall  v. 
Phila.,  177  Pa.  301;  Oakley  v.  Luzerne  Boro.,  25  Pa. 
Superior  Ct.  425;  Shamokin  v.  Helt,  250  Pa.  80;  Scott 
v.  Donora  South  B.  B.  Co.,  222  Pa.  641 ;  Cotter  v.  Phila., 
194  Pa.  496;  Woodward  v.  Pittsburgh,  194  Pa.  193. 

M .  J.  O'Callaghan,  with  him  Glenn  C.  Mead,  Assistant 
City  Solicitor,  and  John  P.  Connelly,  City  Solicitor,  for 
appellee. — Where  a  deed  describes  land  as  fronting  on  a 
street,  the  grantee  takes  to  the  center  line  thereof :  Bleim 
v.  Daubenspreck,  169  Pa.  282;  Fitzell  v.  Phila.,  211  Pa. 
1;  Neely  v.  Phila.,  212  Pa.  551;  South  Twelfth  Street, 
217  Pa.  362;  Clymer  v.  Roberts,  220  Pa.  162. 

Opinion  by  Mr.  Justice  Kbphabt,  April  21, 1919 : 
This  controversy  arose  over  the  value  of  a  piece  of 
land  forming  the  northern  half  of  the  bed  of  Arch  street 
between  Sixtieth  and  Salford  streets.  McCoy,  a  prede- 
cessor in  title  of  the  appellant,  on  May  21, 1858,  sold  the 
land  north  of  Arch  street  to  Ann  Morris.  It  was  de- 
scribed as  follows:  "Beginning  at  a  point in  the 

north  line  of  Arch  Street  as  laid  out  in  the  Thirty-fourth 
Ward,  thence  extending  along  the  north  side  of  said 

Arch  Street  south  78°  59"  west  176  feet thence 

to  the  north  side  of  Arch  Street  and  place  of  be- 
ginning. Bounded and  on  the  south  and  south- 
west by  said  Arch  Street."  On  December  11,  1858,  he 
conveyed  to  Millich  the  land  on  the  south  side  of  Arch 
street,  describing  the  land  as  running  eastwardly  along 
the  middle  line  of  Arch  street  218  feet  to  Salford  street. 


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HAWKES,  Appellant,  v.  PHILADELPHIA.       849 

1919.]  Opinion  of  the  Court 

The  title  to  the  northern  half  of  the  bed  of  Arch  street 
still  remained  in  the  grantor;  it  was  conveyed  by  his 
heirs  to  Annie  L.  Dean,  who,  in  1907,  conveyed  the  title 
to  this  appellant.  Arch  street,  before  the  conveyances, 
was  a  plotted,  approved,  but  unopened,  street,  having 
been  approved  by  the  board  of  surveyors  on  May  3, 1858. 
In  1910,  the  City  of  Philadelphia  directed  it  to  be  opened 
between  Salford  and  Sixtieth  streets,  whereupon  this 
appellant  claimed  the  value  of  the  land  in  the  northern 
half  of  the  bed  of  Arch  street.  At  the  trial  in  the  court 
below,  it  was  agreed  that  the  appellant's  land,  subject 
to  an  implied  covenant  or  easement  of  right-of-way,  was 
valueless.  If  the  grantees  did  not  have  a  right-of-way 
over  Arch  street,  then  the  land  was  worth  $2,600.  It  was 
further  agreed  that  a  verdict  should  be  entered  as  though 
such  right  did  not  exist,  the  disputed  question  from  the 
record  to  be  determined  later;  the  court  below,  believing 
the  land  was  encumbered  by  a  right-of-way,  either 
through  an  implied  contract,  or  by  virtue  of  an  easement, 
directed  judgment  to  be  entered  for  the  city  n.  o.  v. ;  from 
that  action,  and  judgment  so  entered,  the  landowner 
takes  this  appeal. 

As  the  present  case  does  not  involve  relative  rights  of 
grantor  and  grantee,  where  the  land  is  sold  from  a  plan 
of  lots  made  and  adopted  by  the  owner,  it  is  unnecessary 
to  discuss  them.  Such  acts  amount  to  a  dedication  of  the 
streets  to  the  use  of  the  public  forever :  Tesson  v.  Porter 
Co.,  238  Pa.  504-510,  and  cases  therein  cited.  Where 
land  is  conveyed,  bounded  by  an  opened  street,  the 
grantee  takes  title  to  the  middle  of  the  street,  if  the 
grantor  had  the  title  to  it  and  did  not  expressly,  or  by 
clear  implication,  reserve  it:  cases  from  Spackman  v. 
Steidel,  88  Pa.  453 ;  to  Pitzell  v.  Phila.,  211  Pa.  1 ;  Neely  v. 
Phila.,  212  Pa.  551.  If  a  street  is  an  opened,  existing  street 
of  a  given  width  and  the  municipality  subsequently 
widens  the  street  beyond  its  original  width,  the  grantee 
of  lots  sold  with  reference  to  the  street  as  indicated, 
takes  title  to  the  middle  of  the  street,  if  the  grantor 


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350        HAWKBS,  Appellant,  v.  PHILADELPHIA. 

Opinion  of  the  Court  [264  Pa. 

owned  it ;  but  he  does  not  acquire  with  the  grant  an  ease- 
ment of  right-of-way  nor  an  implied  covenant  that  a  way 
shall  exist  over  the  strip  added  to  the  original  width  of 
the  street,  whether  it  fronts  on  the  grantor's  land,  or 
other  lots  conveyed  by  the  grantor:  Fitzell  v.  Phila., 
supra.  In  such  case,  the  intention  of  the  parties  must  be 
taken  in  connection  with  the  opened,  existing  street.  One 
of  the  reasons  advanced  for  the  easement  or  implied  con- 
tract of  a  way  is  that  in  a  sale  with  reference  to  an  un- 
opened or  plotted  street  this  circumstance  is  an  induc- 
ing feature  held  out  to  a  purchaser.  A  lot  located  on  an 
unopened  street,  whether  plotted  by  the  municipality  or 
by  the  act  of  the  owner,  has  a  more  ready  sale  than  a  lot 
located  with  no  street  or  alley,  where  the  purchaser  must 
depend  on  a  way  of  necessity  over  land  of  the  grantor 
for  ingress  and  egress.  In  the  Fitzell  case,  there  was  no 
necessity  for  any  implication  of  a  way,  as  the  purchaser 
bought  with  an  opened,  existing  street  before  him ;  the 
unused,  additional  width  of  the  street  annexed  nothing 
to  his  grant,  nor  was  it  an  inducement  in  any  sense  of  the 
word. 

Where  land  is  conveyed  bounded  by  an  unopened  street 
projected  by  a  municipality,  the  grantee,  by  implication, 
acquires  an  easement  over  the  bed  of  that  street,  unless 
the  circumstances  attending  the  conveyance  and  the  de- 
scription of  the  grant  negative  such  implication:  Spack- 
man  v.  Steidel,  supra ;  Opening  of  Brooklyn  Street,  118 
Pa.  640;  Whitaker  v.  Phcenixville  Borough,  141  Pa.  327; 
Gamble  v.  Phila.,  162  Pa.  413;  Fitzell  v.  Phila.,  supra; 
Neely  v.  Phila.,  supra.  Such  act  is  in  no  sense  a  dedica- 
tion, nor  does  the  owner  covenant  that  the  municipality 
shall  in  the  future  open  that  street.  The  lot  is  sold  sub- 
ject to  a  possible  relinquishment,  by  the  municipality, 
of  its  right  to  open ;  but,  if  it  does  open  the  street  for  pub- 
lic use,  there  can  be  no  doubt  that,  whatever  covenant 
springs  from  the  conveyance  of  a  lot  bounded  by  a  mu- 
nicipally plotted  street,  is  executed  when  the  street  is 
actually  opened  as  a  street.    This  circumstance  is  not  the 


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HAWKES,  Appellant,  v<  PHILADELPHIA.       351 
1919.]  Opinion  of  the  Court 

sole  ground  upon  which  the  grantee  depends  for  his 
means  of  ingress  and  egress,  as  we  will  show  later  on, 
and  the  fee  in  the  bed  of  the  street  subject  to  these  bur- 
dens remains  in  the  grantor  and  his  successors  in  title : 
Cases,  supra.  The  "attending  circumstances"  which 
defeat  the  implication  of  a  covenant  or  easement  must 
be  gathered  from  the  instrument  conveying  the  land  and 
"the  res  gestae  of  the  transaction."  For  illustration  see 
Neely  v.  Phila.,  supra,  where  the  court  held  them  ample 
to  show  that  a  right-of-way  over  the  street  in  controversy 
was  not  intended. 

When  the  city  relinquishes  or  abandons  its  right  to 
open  by  proper  municipal  action,  one  of  the  inducing  fea- 
tures held  out  to  the  grantee  to  purchase  disappears,  but 
the  implied  contract  or  easement  of  a  way  from  the  lot  as 
between  grantor  and  grantee  is  not  destroyed:  Shetter 
y.  Welzel,  242  Pa.  355.  It  is,  however,  limited  to  such 
way  as  may  be  reasonably  necessary  to  the  enjoyment  of 
the  lot  or  lots  sold,  corresponding  in  its  essential  require- 
ments to  the  street  named  in  the  deed.  The  grantor  and 
his  assigns  are  estopped  from  asserting  the  contrary.  It 
would,  indeed,  be  a  monstrous  doctrine  that  would  hold, 
where  lots  are  sold  with  reference  to  streets  projected 
and  plotted  by  a  municipality,  but  not  opened,  which 
plotted  streets  are  afterwards  vacated,  the  grantor,  own- 
ing the  fee  in  the  bed  of  the  streets,  could  close  the  va- 
cated streets  and  alleys,  thereby  depriving  his  grantees 
of  all  ingress  and  egress  to  the  lots  sold  them.  There  is 
no  case  in  Pennsylvania  that  supports  such  doctrine.  On 
the  contrary,  this  court  has  frequently  said  that  where 
similar  circumstances  are  presented,  i.  e.,  land  sold  with 
no  outlet  provided,  the  law  will  provide  a  way  of  neces- 
sity consistent  with  the  reasonable  enjoyment  of  the  estate 
granted;  that  is,  such  way  as  may  be  necessary  to  pre- 
vent the  conveyance  from  operating  as  an  injury  to  the 
grantee.  Of  course,  the  easement,  or  implied  covenant, 
of  a  way  is  not  without  limitation.  A  grantee  of  a  lot 
abutting  on  a  street  other  than  the  vacated  ones,  can- 


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352       HAWKES,  Appellant,  v.  PHILADELPHIA. 

Opinion  of  the  Court  [264  Pa. 

not  complain  of  obstructions  placed  on  the  vacated 
streets  and  alleys  for  the  obvious  reason  that  he 
has  a  way  in  front  of  his  lot  corresponding  with  the  one 
described  in  his  deed,  and,  so  far  as  the  grantor  and 
his  assigns  are  concerned,  they  are  not  interfering  with 
it.  The  grantee,  his  heirs  and  assigns,  may  have  the  con- 
tinued benefit  of  such  way,  and  this  answers  in  full  the 
implied  covenant,  or  the  easement,  in  or  arising  from  the 
conveyance.  Such  was  the  case  in  Tesson  v.  Porter  Co., 
supra;  Bell  v.  Pittsburgh  Steel  Co.,  243  Pa.  83.  As  to 
the  streets  and  alleys  upon  which  his  lot  did  not  abut,  he 
had  no  rights  different  from  the  rights  of  the  public  gen- 
erally. In  otter  words,  his  implied  contract  did  not  ex- 
tend to  streets  and  alleys  not  necessary  to  the  enjoy- 
ment of  his  grant,  though  they  might  be  convenient  to 
its  use:  Tesson  v.  Porter  Co.,  supra;  Bell  v.  Pittsburgh 
Steel  Co.,  supra.  The  same  principle  was  applied  in 
Henderson  et  al.  v.  Young  et  al.,  260  Pa.  334,  where  a 
plotted  street  had  been  vacated  and  a  part  of  the  street 
had  been  occupied  by  buildings,  lawns  and  fences.  It 
was  held  that,  as  the  obstructions  were  not  on  the  portion 
of  the  street  adjoining  the  grantee's  premises,  and  there 
was  another  street  at  one  end  of  his  lot  that  could  be 
used,  and  a  part  of  the  plotted  street  in  front  of  the 
complainant's  land,  connecting  with  still  another  street, 
was  open  to  his  use,  the  occupied  portion  of  the  plotted 
street  did  not  interfere  with  complainant's  grant.  But 
the  court  did  not  hold,  by  the  use  of  the  language,  "a  ref- 
erence to  the  street  as  a  boundary  conveyed  no  easement 
over  it  other  than  that  which  would  follow  as  a  result 
of  the  subsequent  action  of  the  city  in  opening  it  as  plot- 
ted to  public  use,"  the  grantor  or  his  assigns  could  close 
up  the  streets  vacated  and  deprive  a  lot  owner  of  access 
to  his  property.  The  language  quoted  was  used  in  con- 
nection with  that  part  of  the  street  occupied  and  used; 
it  did  not  interfere  with  the  other  part  of  Arbutus  street 
(as  it  joined  Lincoln  avenue),  nor  could  it  with  Green 
street  at  the  other  end.    The  learned  counsel's  ingeni- 


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HAWKES,  Appellant,  v.  PHILADELPHIA.       353 

1919.]  Opinion  of  the  Court 

ous  argument  does  not  convince  us  that  the  law  as  es- 
tablished in  the  Commonwealth  has  been  changed  by  the 
case  of  Henderson  et  al.  v.  Young  et  al.,  supra. 

The  discussion  of  easements  of  right-of-way  is  made  ! 
necessary  by  reason  of  the  form  of  the  agreement  made  ; 
at  the  trial  of  the  case.  We  have  in  this  case,  then,  a  * 
conveyance  on  one  side  of  Arch  street,  between  the  streets 
mentioned,  calling  for  Arch  street  as  a  boundary,  while 
on  the  opposite  side  of  the  street  the  center  line  of  Arch 
street  is  called  for.  It  presents  a  close  similarity  to  the 
facts  in  Clymer  v.  Roberts,  220  Pa.  162,  determining  as 
between  the  parties  that  a  way  existed.  The  fee  in  the 
bed  of  the  northern  half  is  in  the  grantor  and  his  suc- 
cessors, subject  to  the  right  of  the  grantees  to  use  it  as 
outlined.  When  the  municipality  opened  it,  there  being 
nothing  to  show  the  grantor,  or  his  successors,  released 
their  claim,  the  owner  was  entitled  to  be  compensated 
for  the  taking;  and  the  measure  of  damage  as  stated  in 
the  case  of  Whitaker  v.  Phoenixville  Borough,  supra,  ap- 
plies. There  a  lot  was  sold  bounded  by  an  unopened 
street.  The  court  said  the  grantor  "gave  the  right  of 
frontage  on  the  avenue  to  his  grantee,  and  deprived  him- 
self of  all  right  to  interfere  in  any  manner  with  the  front- 
age line  of  the  lot  sold.  If  this  difference  in  the  character 
of  his  ownership,  after  the  conveyance  of  the  lot,  affected 
the  value  of  the  remaining  ground  covered  by  the  street, 
the  plaintiff  could  only  recover  the  value  of  that  land  as 
affected  by  the  conveyance  of  the  adjoining  ground.  The 
question  whether  the  value  of  the  ground  was  thus  af- 
fected, and  to  what  extent,  should  be  left  to  the  jury, 
with  instructions  that  it  is  only  the  value  of  the  land, 
subject  to  the  right  of  the  grantee  of  the  adjoining  lot  to 
have  a  clear  front  on  the  avenue,  that  should  be  allowed 
as  damages."  Also  in  Gamble  v.  Phila.,  supra :  "It  was 
of  no  use  to  theorize  about  the  value  of  the  ground  as 
building  lots,  since  it  could  not  lawfully  be  used  for  any 
such  purpose.  The  evidence  on  that  subject  was  received, 
but  it  could  not  be  permitted  to  constitute  the  basis  of  an 
Vol.  oclxiv— 23 

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354        HAWKES,  Appellant,  v.  PHILADELPHIA. 

Opinion  of  the  Court  [264  Pa. 

inflated  claim  for  damages  upon  a  theory  which  had  no 
lawful  existence.  The  learned  court  did  leave  to  the  jury 
the  question,  what  was  the  value  of  the  land  taken  sub- 
ject to  the  right-of-way  of  the  plaintiff's  grantees,  and 
also  to  the  right  of  the  city  to  open  the  street." 

In  this  case,  both  of  these  considerations  named  were 
within  the  contemplation  of  the  deeds  given  by  the  grant- 
or. The  only  consideration  for  the  court  then  was  the 
measure  of  damages;  the  parties,  by  their  agreement, 
having  determined  this,  under  the  facts  and  law  as  we 
And  it,  the  judgment  of  the  court  below  must  be  sus- 
tained. The  conclusion  as  to  the  value  of  the  northern 
half  of  the  bed  of  Arch  street  was  fair.  On  the  south 
side  of  Arch  street,  houses  had  been  built  on  the  land, 
sidewalks  constructed  and  curbing  laid.  While  this  was 
subsequent  to  the  first  conveyance  by  McCoy,  as  here 
stated,  the  right  acquired  by  his  grantees,  and  their  sue 
cessors,  in  actual  use  would,  in  all  fairness,  cause  the 
bed  of  the  street  to  be  valueless,  as  counsel  agreed. 

The  Act  of  May  9, 1889,  P.  L.  173,  provides :  "That  any 
street,  lane  or  alley,  laid  out  by  any  person  or  persons 
in  any  village,  or  town  plot  or  plan  of  lots,  on  lands 
owned  by  such  person  or  persons,  in  case  the  same  has 
not  been  opened  to,  or  used  by,  the  public  for  twenty-one 
years  next  after  the  laying  out  of  the  same,  shall  be  and 
have  no  force  and  effect  and  shall  not  be  opened,  without 
the  consent  of  the  owner  or  owners  of  the  land  on  which 
the  same  has  been,  or  shall  be,  laid  out."  As  we  have 
just  said,  this  street  was  opened  between  Sixtieth  and  Sal- 
ford  streets,  for  a  part  of  its  width,  and  used  as  such. 
Any  public  use  of  part  of  the  property,  indicating  a  pur- 
pose to  accept  the  gift,  fixes  the  public  right  to  the  whole : 
Commonwealth  v.  Shoemaker,  14  Pa.  Superior  Ct.  194; 
Wieda  v.  Hanover  Township,  30  Pa.  Superior  Ct.  424; 
Hileman  v.  Hollidaysburg  Borough,  47  Pa.  Superior  Ct. 
41,  51.  This  was  said  in  cases  of  dedicated  streets, 
and  it  is  true  in  the  case  of  a  street  that  has  been  laid  out 
by  a  town  plot,  or  with  reference  to  streets  projected  and 


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HAWKBS,  Appellant,  v.  PHILADELPHIA.        355 
1919.]  Opinion  of  the  Court. 

plotted  by  a  municipality  as  to  which  lots  have 
been  sold.  The  occupation  and  use  by  the  public  of  a  part 
of  the  street  is  in  no  sense  an  abandonment  of  the  remain- 
der of  the  street.  The  use  of  a  part  draws  to  it  the  use 
of  the  whole.  The  act  reads  "used  by  the  public" ;  a  for- 
mal opening  of  the  street  by  the  municipality  is  not  neces- 
sary; a  user  of  a  part  of  the  street  by  the  lot  owners  in 
connection  with  their  grants  would  be  such  public  use  as 
would  exclude  the  operation  of  the  act.  Where  the  Act 
of  1889  applies,  he  who  seeks  to  avail  himself  of  it,  must 
present  evidence  to  support  his  claim.  Here  the  appel- 
lant failed  to  meet  the  burden  of  proof;  it  is  not  clear 
when  the  way  was  first  used  by  the  various  grantees. 
But  we  do  not  see  how  the  act  can  avail  in  any  event. 
The  land  was  opened  by  ordinance  in  1910 ;  and  we  here 
hold  that  the  owner  is  entitled  to  compensation  for  the 
land  taken  subject  to  such  impediments  on  his  owner- 
ship as  he  created,  which  in  this  case  caused  his  right 
to  be  worthless.  The  Act  of  1889,  under  the  evidence,  did 
not  destroy  the  private  rights  thus  acquired. 
The  judgment  of  the  court  below  is  affirmed. 


Schwehm's  Estate, 


Decedents9  estates  —  Family  settlement  —  Trusts  and  trustees  — 
Settlement  of  will  contest — Executors  and  administrators. 

Where  a  daughter  contests  her  father's  will,  and  a  settlement  in  * 
the  nature  of  a  family  settlement,  is  made  between  herself  and  her 
two  brothers,  who  were  also  two  of  the  three  executors  of  the  will, 
by  which,  in  consideration  of  the  withdrawal  of  the  caveat,  the 
daughter  receives  absolutely  a  portion  of  tbe  estate  in  lieu  of  a 
separate  use  trust  provided  by  the  will,  such  settlement  is  void; 
but  in  setting  it  aside,  tbe  court  will  permit  the  daughter  to  renew 
her  proceedings  to  contest  the  will,  and  to  move  for  the  vacation  of 
its  probate,  distribution  under  the  terms  of  the  will  to  be  stayed 
pending  such  proceedings. 


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356  SCHWEHM 'S  ESTATE. 

Statement  of  Facta— Arguments.  [264  Pa. 

Argued  Jan.  23, 1919.  Appeal,  No.  219,  Jan.  T.,  1919, 
by  Anna  E.  Schadewald,  from  decree  of  O.  C.  Philadel- 
phia Co.,  Jan.  T.,  1918,  No.  388,  dismissing  exceptions  to 
adjudication  in  Estate  of  John  M.  Schwehm,  deceased. 
Before  Brown,  C.  J.,  Stewart,  Frazeb,  Walling  and 
Simpson,  JJ.    Affirmed  and  modified. 

Exceptions  to  adjudication.    Before  Gummby,  J. 

Prom  the  record  it  appeared  that  John  M.  Schwehm 
died  leaving  a  will  by  which  he  gave  his  residuary  estate 
to  his  two  sons,  Harry  J.  Schwehm  and  Ernest  Schwehm, 
and  his  daughter,  Anna  E.  Schadewald,  in  equal  shares, 
but  directed  that  the  share  of  the  daughter  should  be 
held  on  a  separate  use  trust.  The  two  sons  and  Julius  C. 
Levi  were  appointed  executors.  The  daughter  contested 
the  will.  After  a  large  amount  of  testimony  had  been 
taken  in  the  contest  over  the  will,  an  agreement  was  made 
between  the  parties  that,  in  consideration  of  the  con- 
testant withdrawing  the  caveat  and  stopping  the  pro- 
ceedings, she  should  receive  a  certain  portion  of  the  re- 
siduary estate  absolutely.  Julius  C.  Levi  as  an  executor 
signed  an  approval  of  the  settlement.  The  auditing  judge 
held  that  the  settlement  was  void  and  directed  distribu- 
tion in  accordance  with  the  will.  Exceptions  to  the  ad- 
judication were  dismissed  by  the  court.  Anna  E.  Schade- 
wald appealed. 

Errors  assigned  were  in  dismissing  exceptions  to  the 
adjudication. 

Francis  C.  Menamin  and  John  Weaver,  for  appellant. 
— The  settlement  should  have  been  upheld:  Conrad  v. 
Conrad,  36  Pa.  Superior  Ct.  154 ;  Henderson  v.  Bishop, 
250  Pa.  484;  Phillips  v.  Phillips,  8  Watts  195;  Jourdan 
v.  Jourdan,  9  S.  &  B.  268;.Ralston's  Est.,  172  Pa.  104. 

Julius  G.  Levi,  for  appellee,  filed  no  printed  brief. 

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SCHMEHM'S  ESTATE.  357 

1919.]  Opinion  of  the  Court. 

Pbb  Cubiam,  April  21,  1919 : 

This  appeal  is  dismissed  because  the  family  settlement, 
upon  which  the  appellant  relies,  is  void  in  so  far  as  it  at- 
tempts to  create  for  her  an  estate  different  from  the  trust 
provided  for  her  in  the  instrument  admitted  to  probate 
as  her  fathers  will ;  but  this  is  without  prejudice  to  her 
right  to  renew  her  proceedings  to  contest  his  will  and  to 
move  for  the  vacation  of  its  probate,  her  objection  to  the 
probate  having  been  withdrawn  in  pursuance  of  the  said 
family  agreement,  and  it  is  ordered  that  distribution  in 
the  court  below  be  suspended  for  a  period  of  ninety  days, 
and  as  much  longer  as  the  appellant  may  reasonably  re- 
quire in  the  renewal  of  her  proceedings  to  have  the  pro- 
bate of  the  will  vacated. 

Appeal  dismissed  at  the  cost  of  the  estate. 


Evans's  Estate  (No.  1). 

Wills — Construction — Vested  and  contingent  estates. 

Where  the  testatrix  gave  the  residue  of  her  estate  to  a  trustee  to 
pay  the  income  to  her  sister  for  life,  and  upon  the  death  of  the  life 
tenant,  to  pay  and  divide  two-fifths  of  the  income  among  six  chil- 
dren of  the  life  tenant  by  name,  for  their  respective  lives  and  after 
the  death  of  each  of  the  said  children,  then  to  pay  a  representative 
portion  of  the  capital  to  his  children,  if  any  then  living,  and  the 
issue  of  any  then  deceased;  and  in  case  there  shall  be  no  such  child 
or  issue  of  deceased  child  then  living  of  the  nephew  so  dying,  then 
in  trust  to  pay  the  same  to  the  other  children  of  the  sister  who 
may  then  be  living,  and  if  none  of  such  children  or  issue  of  deceased 
children  be  then  living,  then  over,  the  gift  to  the  children  of  the 
life  tenant  is  not  vested  but  is  contingent  upon  their  surviving  the 
life  tenant. 

Argued  Jan.  24,  1919.  Appeals,  Nos.  120  and  121, 
by  Winfield  S.  and  Randolph  P.  Eussell,  from  decree  of 
O.  C.  Philadelphia  Co.,  April  T.,  1888,  No.  403,  sustain- 
ing exceptions  to  adjudication  in  Estate  of  Emma  L. 
Evans,  deceased.  Before  Brown,  C.  J.,  Stewart,  Mosch- 
ziskbr,  Walling  and  Simpson,  J  J.   Beversed. 


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358  EVANS'S  ESTATE  (No.  1). 

Statement  of  Facts — Opinion  of  the  Court.      [364  Pa, 
Exceptions  to  adjudication. 
The  court  sustained  the  exceptions. 
Appeal  by  Winfield  S.  and  Randolph  P.  Russell. 

Errors  assigned  were  in  sustaining  the  exceptions. 

Isaac  A.  Pennypacker,  with  him  George  Wharton  Pep- 
per,  for  Winfield  S.  and  Randolph  P.  Russell,  appellants. 
— Where  a  gift  is  only  implied  from  a  direction  to  pay 
it  is  necessarily  inseparable  from  the  direction  and  must 
partake  of  its  quality.  Insomuch  as  the  one  is  future  and 
contingent,  so  must  the  other  be :  Rosengarten  v.  Ashton, 
228  Pa.  389 ;  Safe  Dep.  &  Trust  Co.  v.  Wood,  201  Pa.  420. 

The  gift  was  contingent  upon  surviving  the  life  tenant : 
Sternberg's  Est.,  250  Pa.  167;  Wood  v.  Schoen,  216  Pa. 
425. 

Thomas  James  Meagher,  for  Harry  S.  Mesirov,  trustee 
in  bankruptcy  of  William  F.  Russell,  appellee. 

C.  J.  Hepburn,  of  Hepburn,  Dechert  d  Norris,  for  Eliza 
A.  Settle,  Sallie  F.  Coxe  and  Adam  E.  Wright,  appellees. 

Opinion  by  Me.  Chief  Justice  Brow  n,  April  21, 1919 : 
Emma  L.  Evans  died  testate  December  22, 1887.  She 
placed  her  residuary  estate  in  trust,  and  provided  that 
the  entire  net  income  therefrom,  after  the  payment  of 
certain  annuities,  should  be  paid  to  her  sister,  Sarah  E. 
Russell,  for  life.  She  directed  that,  upon  the  death  of 
this  sister,  the  residuary  estate  should  be  divided  into 
five  parts,  and  as  to  two  of  them  made  the  following  dis- 
position :  "Two  parts  whereof  I  devise  and  bequeath  to 
my  said  Trustee  in  Trust  to  pay  and  divide  the  net  in- 
come thereof  equally  to  and  among  the  children  of  my 
Sister  Catharine  S.  Russell  namely,  Charles  S.,  William 
F.,  Stephen  F.,  Harvey  C,  Winfield  S.,  and  Randolph  P. 
Russell,  for  their  respective  lives  and  so  that  the  same 
shall  not  be  subject  to  their  debts  or  liabilities  or  to  any 


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EVANS'S  ESTATE  (No.  1).  359 

1919.]  Opinion  of  the  Court. 

right  or  power  of  anticipation  whatever;  and  after  the 
death  of  each  of  the  said  children,  then  in  Trust  to  trans- 
fer and  pay  so  much  of  the  principal  or  capital  of  my 
rtsiduary  estate  as  may  represent  his  share  of  the  said  in- 
come to  his  children  (if  any)  who  may  then  be  living 
and  the  issue  of  any  who  may  then  be  deceased  leaving 
issue,  share  and  share  alike,  such  issue  of  any  deceased 
child  however  to  take  the  parent's  share;  and  in  case 
there  shall  be  no  such  child  or  issue  of  deceased  child 
then  living  of  the  nephew  so  dying  then  in  Trust  to  pay 
the  same  to  the  other  children,  and  the  issue  of  any  de- 
ceased child  (such  issue  to  take  a  parent's  share)  of  my 
said  sister,  Catharine  S.  Russell  who  may  then  be  living; 
and  if  none  of  such  children  or  issue  of  deceased  children 
be  then  living  then  in  Trust  to  pay  the  same  to  my  next 
of  kin  according  to  the  intestate  laws."  Charles  S.  Bus- 
sell,  one  of  the  above-named  nephews,  died  without  issue, 
in  the  lifetime  of  the  testatrix;  Stephen  F.  died  without 
issue  March  1,  1895 ;  Harvey  C.  died  without  issue  Au- 
gust 9,  1896,  and  William  F.  died  without  issue  March 
19,  1909.  Sarah  E.  Russell,  the  cestui  que  trust,  died 
June  22, 1910,  survived  by  but  two  of  the  six  nephews  of 
the  testatrix,  Randolph  P.  and  Winfield  S.  Russell.  At  the 
readjudication  of  the  account  of  the  trustee  the  auditing 
judge  held  that  the  nephews  did  not  have  a  vested  inter- 
est in  the  residuary  estate  during  the  lifetime  of  Sarah 
E.  Russell,  as  the  interest  of  each  was  contingent  upon 
his  surviving  her.  The  court  in  banc  sustained  excep- 
tions to  this,  and  held  that  the  interest  of  each  nephew 
was  vested,  payable  at  the  death  of  the  life  tenant,  to  the 
representatives  of  a  deceased  nephew  and  to  the  two  who 
survived.  From  this  the  latter  have  appealed,  on  the 
ground  that  the  auditing  judge  correctly  held  that  the  in- 
terest of  each  nephew  was  contingent  and  had  not  vested 
in  any  of  the  four  who  had  died. 

During  the  lifetime  of  Sarah  E.  Russell  it  was  not  pos- 
sible to  determine  who  would  take  at  her  death  the  in- 
come or  principal  of  the  trust  fund.    No  portion  of  the 


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360  EVANS  'S  ESTATE  (No.  l) . 

Opinion  of  the  Court  [S64  Pa. 

principal  was  payable  to  any  one  until  after  her  death, 
and  until  she  died  the  six  named  nephews  had  no  interest 
in  the  income.  If  all  had  survived  her  each  would  have 
acquired  an  interest  in  it;  but  if  all  had  died  without 
issue  during  her  lifetime — before  any  portion  of  the 
principal  had  become  payable  to  any  one — the  entire 
residuary  estate  would  have  gone  to  the  "next  of  kin"  of 
the  testatrix,  "according  to  the  intestate  laws,"  for  she 
expressly  so  directed.  If  all  had  died  leaving  issue,  the 
issue  would  have  taken.  How,  then,  can  it  be  said  that 
any  interest  had  vested  in  the  nephews  before  the  death 
of  the  cestui  que  trust?  Words  could  not  make  clearer 
the  intention  of  the  testatrix,  that  no  interest  should 
vest  in  them  during  the  lifetime  of  her  sister,  and  this 
intention  must  be  given  effect  without  regard  to  any  rule 
of  construction :  Mulliken  v.  Earnshaw,  209  Pa.  226.  If 
a  rule  of  construction  were  to  be  applied,  the  interest  of 
the  nephews  would  have  to  be  regarded  as  contingent,  for 
there  was  no  direct  gift  to  them  of  principal  or  income, 
the  gift  being  implied  only  from  the  direction  to  transfer 
and  pay,  and  as  to  this  the  settled  rule  is :  "Where  there 
is  no  gift  but  in  a  direction  to  pay  or  transfer  or  divide 
among  several  persons,  at  a  future  period,  though  the 
future  period  is  annexed  to  the  payment,  possession  or 
enjoyment,  yet  it  is  also  annexed  to  the  devise  or  bequest 
itself.  For,  in  this  case,  the  direction  to  pay  or  transfer 
or  divide,  constitutes  the  devise  or  bequest  itself ;  and, 
therefore,  the  vesting  in  interest  is  postponed,  and  not 
merely  the  vesting  in  possession  or  enjoyment" :  Smith  on 
Executory  Interests,  Sec.  314.  Among  the  many  of  our 
own  cases  following  this  English  rule  are  Moore  v.  Smith, 
9  Watts  407;  Provenchere's  App.,  67  Pa.  463;  ReiflPs 
App.,  124  Pa.  145;  Rosengarten  v.  Ashfon,  228  Pa.  389. 

The  decree  of  the  court  below  is  reversed  and  the  record 
remitted  with  direction  that  distribution  be  made  in  ac- 
cordance with  the  view  herein  expressed,  the  costs  on  this 
appeal  to  be  paid  by  the  trustee  out  of  the  funds  in  its 
hands. 


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EVANS'S  ESTATE  (No.  2).  361 

1919.]  Statement  of  Facts— Opinion  of  the  Court 

Evans's  Estate  (No.  2). 

Argued  Jan.  4, 1919.  Appeal,  No.  103,  Jan.  T.,  1917, 
by  Pennsylvania  Co.  for  Insurances  on  Lives  and  Grant- 
ing Annuities,  Trustee,  from  decree  of  O.  C.  Philadelphia 
Co.,  April  T.,  1888,  No.  403,  sustaining  exceptions  to 
adjudication  in  Estate  of  Emma  L.  Evans.  Before 
Brown,  C.  J.,  Stewart,  Moschzisker,  Walling  and 
Simpson,  JJ.    Reversed. 


Exceptions  to  adjudication. 
The  court  sustained  the  exceptions. 
Errors  assigned  were  in  sustaining  the  exceptions  to 
the  adjudication. 

Maurice  Brown  Saul,  of  Prichard,  Saul,  Bayard  d 
Evans,  for  appellant. 

Thomas  James  Meagher,  for  Harry  S.  Mesirov,  trustee 
in  bankruptcy  of  William  P.  Russell,  appellee. 

C.  E.  Hepburn,  of  Hepburn,  Dechert  &  Norris,  for 
Eliza  A.  Settle,  Sallie  F.  Coxe  and  Adam  E.  Wright,  ap- 
pellees. 

Opinion  by  Mr.  Chief  Justice  Brown,  April  21, 1919 : 
William  F.  Russell,  the  fourth  nephew  of  the  testatrix 
to  die  during  the  lifetime  of  her  sister,  Sarah  E.  Bussell, 
was  adjudged  a  bankrupt  June  29,  1900,  and,  on  the 
theory  that  he  had  a  vested  interest  in  the  fund  held  by 
the  appellant,  the  court  below  directed  it  to  pay  his 
share  to  his  trustee  in  bankruptcy.  As  we  have  held  in 
an  opinion  filed  herewith  in  appeals  to  January  Term, 
1917,  Nos.  120  and  121,  that  his  interest  was  not  vested, 
the  award  to  the  trustee  in  bankruptcy  must  be  set  aside, 
and  it  is  so  ordered,  the  costs  on  this  appeal  to  be  paid 
out  of  the  funds  in  the  hands  of  the  appellant. 


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362  COMMONWEALTH  v.  DALE,  Appellant. 

Syllabus.  [264  Pa. 

Commonwealth  v.  Bale,  Appellant. 

Criminal  law — Murder — Insanity — Evidence  —  Burden  of  proof 
— Hereditary  insanity. 

1.  Where  the  defense  in  a  murder  trial  is  insanity,  the  burden  is 
on  the  defendant  to  prove  by  a  fair  preponderance  of  the  evidence 
that  he  was  insane  when  he  did  the  killing.  This  burden  rests  on 
him  throughout  the  trial,  and  he  is  required  not  only  to  adduce 
evidence  as  to  his  own  insanity,  but  also  such  corroborating  proof 
as  he  desires  to  submit 

2.  The  father  of  a  defendant  indicted  for  murder  who  has  set  up 
insanity  as  a  defense,  will  not  be  permitted  to  testify  to  his  own 
insanity,  or  such  acts  from  which  insanity  might  be  inferred. 

3.  Where  the  insanity  of  an  individual  is  in  question  the  in- 
sanity of  his  blood  relations  in  the  ancestral  line,  either  direct  or 
collateral,  may  be  shown  in  corroboration  of  the  evidence  showing 
insanity  in  the  individual ;  but  hereditary  insanity  of  itself  is  not 
independent  proof  of  the  insanity  of  the  prisoner,  but  it  is  circum- 
stantial evidence  used  to  corroborate  other  more  direct  proof  of 
insanity  in  the  accused;  of  itself  it  cannot  be  used  as  a  defense. 

4.  Before  receiving  such  evidence  as  grounds  for  a  presumption 
of  possible  insanity,  there  must  be  some  evidence  showing  insanity 
in  the  accused.  It  must  also  appear  that  the  disease  is  hereditary 
or  transmissible  so  as  to  taint  the  family  blood. 

5.  If  insanity  is  shown  in  the  accused,  and  insanity  be  shown  in 
collateral  kindred  of  not  too  remote  a  degree,  and  the  insanity  with 
which  each  suffers  is  transmissible  or  hereditary  in  that  it  may  or 
will  reappear  in  some  form  or  symptom  in  a  descendant,  no  matter 
what  symptom  it  may  take  in  the  descendant,  such  evidence  may 
be  introduced  without  showing  insanity  in  the  direct  line,  i.  e., 
parents  or  grandparents. 

6.  Witnesses  who  testify  to  insanity  in  the  ancestors  either  direct 
or  collateral,  must  do  so  from  personal  knowledge  and  observation, 
and  not  from  reputation. 

7.  Before  evidence  to  establish  hereditary  taint  may  be  intro- 
duced, proof  should  be  present  that  the  insanity  in  the  collateral 
kinsman  was  transmissible,  and  not  nonhereditary. 

8.  On  the  trial  of  an  indictment  for  murder  where  the  defense  is 
insanity,  the  father  of  the  accused  cannot  show  that  he  had  two 
other  children  who  had  been  committed  to  an  insane  asylum,  that  a 
sister  of  the  accused's  mother  was  of  unsound  mind,  and  children 
of  the  mother's  brother  were  of  unsound  mind,  where  there  is  no 


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COMMONWEALTH  v.  DALE,  Appellant.  368 

1919.]  Statement  of  Facts. 

offer  to  prove  that  the  insanity  in  such  collateral  kinsmen  was 

transmissible. 

Argued  Feb.  17, 1919.  Appeal,  No.  249,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  O.  &  T.  Schuylkill  Co., 
March  T,  1918,  No.  158,  on  verdict  of  guilty  of  murder 
of  the  first  degree  in  case  of  Commonwealth  v.  Alexander 
Dale.  Before  Brown,  C.  J.,  Stbwabt,  Moschziskbb, 
Walling  and  Kephart,  J  J.    Affirmed. 

Indictment  for  murder.    Before  Bbohtbl,  P.  J. 

At  the  trial  when  Samuel  Dale,  the  father  of  the  ac- 
cused, and  a  witness  on  his  behalf,  was  on  the  stand,  the 
following  offers  were  made : 

Defendant's  witness,  Samuel  Dale,  being  on  the  stand, 
the  following  offer  and  ruling  occurred : 

Mr.  Leuschner  (at  side  bar) :  We  propose  to  prove 
by  the  witness  that  he  himself  has  strange  impulses ;  he 
suffers  extremely  from  headaches  and  other  affections  of 
the  head ;  that  he  has  been  that  way  from  birth ;  that  he 
feels  coming  on  to  him  at  times  an  impulse  and  a  desire 
to  kill ;  that  he  has  often  obtained  a  revolver  when  these 
impulses  came  upon  him  and  he  was  seized  with  a  deter- 
mination to  kill  his  wife;  that,  however,  he  has  been  able 
to  control  these  impulses  and  put  away  the  instrument 
with  which  he  wanted  to  kill ;  that  there  is  a  taint  of  in- 
sanity in  his  family,  especially  his  children ;  that  one  of 
his  daughters  was  committed  to  the  insane  asylum  at 
Danville,  in  this  State,  where  she  died ;  that  one  of  his 
sons  was  committed  to  the  insane  hospital  at  Rittersville 
and  subsequently  released ;  and  this  will  be  supported  by 
testimony  from  these  institutions ;  that  there  is  a  taint 
of  insanity  in  the  family  of  his  wife;  that  her  nephew's 
children  of  her  brother,  William  Gibson,  are  insane  in  a 
mild  form,  being  grown  children,  and  foolish.  For  the 
purpose  of  showing  the  hereditary  strain  of  insanity  in 
the  family.  This  is  to  be  followed  by  the  testimony  of  an 
expert  who  will  testify  that  this  defendant  has  been,  was 
and  is  now  even  at  the  time  of  this  trial,  insane  and  liable 


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364         COMMONWEALTH  t>.  DALE,  Appellant. 

Statement  of  Facts.  [264  Pa. 

at  any  moment  to  commit  acts  of  violence  which  en- 
danger the  lives  of  the  people. 

Mr.  Whitehouse :  Objected  to  as  being  irrelevant,  incom- 
petent and  immaterial,  calling  for  an  opinion  from  this 
witness,  in  the  form  in  which  the  offer  now  stands. 

The  Court :  I  do  not  think  we  have  sufficient  evidence 
at  the  present  time  to  admit  the  evidence  as  to  his  brother 
or  his  sister.  If,  later  on,  more  evidence  is  introduced,  that 
may  become  material,  and  counsel  can  again  make  that 
offer  if  they  see  fit  to  do  so  later  on  in  the  case.  As  to  the 
evidence  proposed  to  be  introduced  from  the  witness  rela- 
tive to  his  own  condition,  we  will  sustain  the  objection. 

Defendant  excepts.    Bill  sealed.    (4) 

Defendant's  witness,  Dr.  Wm.  H.  Clewell,  being  on  the 
stand,  the  following  offer  and  ruling  occurred: 

Mr.  Leuschner  (at  side  bar) :  I  desire  at  this  time  to 
renew  the  former  offer  made  to  show  by  Samuel  Dale,  the 
father  of  this  defendant,  that  he  has  had  from  time  to 
time  strange  impulses,  impelling  him  to  commit  violent 
acts ;  that  he  has  on  more  than  one  occasion  armed  him- 
self with  a  revolver  for  the  purpose  of  carrying  these 
acts  into  effect.  That  these  impulses  were  known  to  him, 
he  was  conscious  of  them,  but  that  seemingly  he  had  lost 
control  of  his  will,  although  before  the  commission  of 
any  overt  act  he  was  able  to  regain  control  and  no  such 
act  was  committed ;  that  by  Samuel  Dale,  it  is  proposed 
to  prove  that  he  had  two  children,  Anna  Dale  and  John 
Dale,  both  of  whom  showed  symptoms  of  insanity,  and 
that  Anna  Dale  was  committed  to  the  insane  asylum  at 
Danville,  where  she  died,  and  that  John  Dale,  another 
son  of  Samuel  Dale,  and  a  brother  of  the  defendant,  was 
committed  to  the  insane  asylum  at  Rittersville,  in  this 
State.  This  is  to  be  corroborated  by  the  testimony  of  Doc- 
tors Clewell,  of  Coaldale,  and  Ruch,  of  Lansford,  Pennsyl- 
vania, Dr.  Clewell  being  now  on  the  stand  for  that  pur- 
pose; the  said  Dr.  Clewell  and  Dr.  Ruch  being  the  physi- 
cians who  had  the  case  of  John  Dale  under  consideration 
and  were  treating  him  at  the  time,  and  who  prepared  the 


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COMMONWEALTH  v.  DALE,  Appellant         365 
1919.]  Statement  of  Facts, 

information  and  the  papers  to  ultimately  commit  him  to 
that  institution.  It  is  further  proposed  to  corroborate  the 
testimony  of  Samuel  Dale,  the  father  of  this  defendant,  to 
the  effect  that  he  was  in  the  habit  of  performing  peculiar 
acts  and  that  those  in  immediate  contact  with  him  believed 
him  at  such  times  to  be  of  unsound  mind.  This  for  the 
purpose  of  showing  that  there  exists  in  the  family  of 
Samuel  Dale,  a  direct  ancestor  of  this  defendant,  and 
collaterally  that  the  sister  and -the  brother  of  the  defend- 
ant were  insane,  and  that  there  exists  in  the  family  an 
hereditary  tendency  to  insanity. 

It  is  also  proposed  to  prove  that  Agnes  Kane,  a  sister 
of  Elizabeth  Dale,  the  mother  of  the  defendant,  was  and 
is  of  unsound  mind  and  that  children  of  Wm.  Gibson,  a 
brother  of  Mrs.  Elizabeth  Dale,  are  also  of  unsound  mind. 
This  for  the  purpose  stated  in  the  offer  above. 

Mr.  Whitehouse :  It  is  objected  to  in  the  form  it  now 
stands  as  being  irrelevant,  incompetent  and  immaterial. 

The  Court :  I  do  not  think  the  evidence  offered  to  prove 
the  insanity  of  the  father  of  the  defendant  is  competent, 
and  we  do  not  think  that  he  can  prove  his  own  insanity, 
and  it  is  not  proposed  to  show  by  any  witnesses  that  he 
is  now  or  ever  was  insane ;  neither  is  it  proposed  to  show 
that  the  mother  of  the  defendant  is  now  or  ever  was  in- 
sane. We  think  it  would  be  necessary  to  show  the  strain 
of  insanity  in  the  blood  of  some  ancestor  of  the  defendant 
before  the  collateral  issue  can  be  proven.  We  do  not 
think  that  it  is  competent  to  establish  the  main  issue  by 
collateral  evidence.  That  must  be  established  first.  We 
therefore  sustain  the  objection.  The  court  has  not  ruled 
out  or  is  not  ruling  out  now  any  expert  evidence  offered 
to  show  the  mental  condition  of  the  defendant  at  the  time 
of  the  commission  of  this  crime  or  at  the  present  time. 

Defendant  excepts.    Bill  sealed.    (5) 

Verdict  of  guilty  of  murder  of  the  first  degree  upon 
which  judgment  of  sentence  was  passed.  Defendant  ap- 
pealed. 


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366         COMMONWEALTH  v.  DALE,  Appellant 

Assignment  of  Errors — Opinion  of  the  Court.    [264  Pa. 
Errors  assigned,  among  others,  were  (4, 5)  rulings  on 
evidence  quoting  the  bills  of  exceptions. 

W.  B.  Durkin  and  E.  P.  Leuschner,  for  appellant. 

O.  A.  Whitehouse,  District  Attorney,  with  him  M.  F. 
Duffy,  Asst.  District  Attorney,  and  John  J.  Morgan,  for 
appellee. 

Opinion  by  Mr.  Justice  Kbphabt,  April  21, 1919 : 

The  defense  of  the  accused  was  insanity  and  the  bur- 
den was  on  him  to  prove,  by  fair  preponderance  of  the 
evidence,  that  he  was  insane  when  he  killed  Swartz.  This 
burden  rested  on  him  throughout  the  trial  and  he  was 
required  not  only  to  adduce  evidence  as  to  his  own  in- 
sanity, but  also  such  corroborating  proofs  as  he  de- 
sired to  submit.  He  proposed  (a)  to  show,  by  his 
father,  that  he,  the  father,  was  of  a  nervous  temperament, 
excitable  and  eccentric ;  or,  in  other  words,  the  witness 
was  called  upon  to  prove  his  own  insanity ;  (b)  to  show, 
by  the  same  witness,  that  he  had  two  children  who  had 
been  committed  to  insane  asylums,  that  a  sister  of  the 
accused's  mother  was  of  unsound  mind,  and  children  of 
the  mother's  brother  are  of  unsound  mind.  This  for  the 
purpose  of  showing  "an  hereditary  tendency  to  insanity.* 

For  obvious  reasons,  under  the  circumstances  of  this 
case,  the  witness  should  not  be  permitted  to  testify  to  his 
own  insanity,  or  such  acts  from  which  insanity  might  be 
inferred.  It  would  open  the  door  to  a  very  wide  field  into 
which  much  fraud,  dishonesty  and  perjury  may  creep,  to 
say  nothing  of  the  ability  of  the  witness  to  judge  of 
the  matter :  O'Connell  v.  Beecher  et  al.,  47  N.  T.  S.  334, 
21  N.  Y.  App.  Div.  298. 

As  to  the  second  proposition,  it  was  once  ruled  that  it 
was  not  permissible  to  prove,  either  in  criminal  or  civil 
cases,  that  other  members  of  the  same  family  have  been 
decidedly  insane:  People  v.  Garbutt,  17  Mich.  9,  17,  97 
Am.  Dec.  162;  A.  &  E.  Encyc.  of  Law,  Vol.  16,  p.  CIS; 


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COMMONWEALTH  v.  DALE,  Appellant.         367 
1919.]  Opinion  of  the  Court. 

but  that  rule  no  longer  obtains,  as  science  teaches  "that 
insanity  of  some  varieties  may  be  and  even  tends  to  be 
transmitted  to  descendants,  is  [now]  an  accepted  path- 
ological fact.  Moreover,  since  it  is  equally  true  that  it 
may  pass  over  a  generation  or  an  individual  before  re- 
appearing, it  follows  that  insanity  in  collateral  relatives 
may  indicate  an  anterior  ancestral  tendency  capable  of 
appearing  in  other  collateral  branches":  Wigmore  on 
Evidence,  Vol.  1,  sec.  232,  p.  288;  and  the  general  rule  is, 
where  the  insanity  of  an  individual  is  in  question,  the 
insanity  of  his  blood  relations  in  the  ancestral  line,  either 
direct  or  collateral,  may  be  shown  in  corroboration  of  the 
evidence  showing  insanity  in  the  individual:  In  re 
Myer's  Will,  184  N.  Y.  54;  Walsh  v.  People,  88  N.  T. 
458;  Commonwealth  v.  Winnemore,  1  Brewster  356; 
People  v.  Garbutt,  supra;  Prentis  v.  Bates,  88  Mich.  567; 
93  Mich.  234;  State  v.  Windsor,  5  Harr.  (Del.)  512; 
Murphy  v.  Commonwealth,  92  Ky.  485;  Watts  v.  The 
State,  99  Md.  30.  Owing  to  the  great  abuse  that  has  been 
made  by  the  use  of  insanity  as  a  defense  in  criminal 
prosecutions,  or  as  a  reason  for  setting  aside  instruments 
in  writing — wills,  contracts  and  deeds — and  the  possi- 
bility of  a  trial  being  clogged  with  endless  collateral  is- 
sues, the  courts  have  been  compelled  to  impose  limita- 
tions on  the  admissibility  of  evidence  showing  a  taint  of 
insanity  in  direct  or  collateral  kinsmen. 

Therefore,  it  has  been  ruled  that  hereditary  insanity 
of  itself  is  not  independent  proof  of  the  insanity  of  the 
prisoner,  but  it  is  circumstantial  evidence  used  to  cor- 
roborate other  more  direct  proof  of  insanity  in  the  ac- 
cused. Of  itself  it  cannot  be  used  as  a  defense :  1  Whar- 
ton &  Stille's  Medical  Jurisprudence;  People  v.  Gam- 
hacorta,  197  N.  Y.  181 ;  Wigmore  on  Evidence,  Vol.  1, 
sec.  232 ;  State  v.  Cunningham,  72  N.  Car.  469, 474 ;  Gui- 
teau's  Case,  10  Fed.  161. 

Before  receiving  such  evidence  as  grounds  for  a  pre- 
sumption of  possible  insanity,  there  must  be  some  evi- 
dence showing  insanity  in  the  accused :  Laros  v.  Corn- 
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368  COMMONWEALTH  v.  DALE,  Appellant 

Opinion  of  the  Court  [264  Pa. 

monwealth,  84  Pa.  200;  People  v.  Gambacorta,  supra; 
Bradley  v.  The  State,  31  Ind.  492;  Berry  v.  Safe  Deposit, 
etc.,  Co.,  96  Md.  45,  65;  53  Atl.  720;  and  authorities 
above  enumerated. 

It  must  also  appear  that  the  disease  is  hereditary,  or 
transmissible,  so  as  to  taint  the  family  blood :  Walsh  v. 
People,  supra;  Reichenbach  v.  Ruddach,  127  Pa.  564; 
State  v.  Van  Tassel,  103  Iowa  11;  72  N.  W.  Rep.  497; 
In  re  Myer's  Will,  supra. 

This  last  proposition  is  not  entirely  free  from  doubt 
in  some  states,  and,  though  the  insanity  may  be  trans- 
missible, the  line  in  which  it  must  appear  is  a  little  un- 
certain. The  court  below  declined  to  receive  the  evidence 
because  there  was  no  proof  of  insanity  in  the  direct  an- 
cestral line,  and  while  it  was  in  error  in  so  holding,  under 
the  offer  and  the  record  as  it  now  stands  its  action 
in  declining  to  receive  this  evidence  must  be  approved. 
The  question,  as  it  bears  on  the  last  proposition  of  law, 
may  be  stated  thus :  in  the  absence  of  any  proof  what- 
ever of  insane  conduct  on  the  part  of  the  accused's  direct 
ancestry,  may  such  existence  be  inferred  from  evidence 
to  the  effect  that  the  accused  and  his  collateral  ancestors 
of  near  degree  were  suffering  from  hereditary  or  trans- 
missible insanity,  or  had  so  suffered?  Illustrations  have 
been  given  in  the  textbooks  and  digests  of  instances, 
where  evidence  of  insanity  in  blood  relations  of  the  ac- 
cused, such  as  nieces,  nephews,  brothers  and  sisters, 
uncles  and  aunts,  has  been  received.  In  many  of  these 
cases  it  does  not  clearly  appear  that  insanity  in  the  di- 
rect ancestral  line  had  been  previously  shown.  The 
reasons  why  such  evidence  should  not  be  required  are 
well  stated  in  a  discussion  of  this  subject  in  Wharton  & 
Stille's  Medical  Jurisprudence,  Chap.  30,  and  summed 
up  by  Wigmore,  supra,  in  the  statement  that  hereditary 
insanity  may  pass  over  a  generation  or  individual  before 
reappearing  later  on.  The  difficulty  in  obtaining  proof 
in  the  direct  ancestry  is  apparent.  In  People 
v.   Garbutt,   supra,   where   it  was   not   claimed   that 


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COMMONWEALTH  v.  DALE,  Appellant         369 
1919.].  m  Opinion  of  the  Court 

either  parent  or  any  direct  ancestor  had  been  insane,  but 
the  defense  offered  to  show  insanity  in  the  brother  and 
sister  arising  from  a  cause  similar  to  that  which  it  was 
alleged  had  induced  the  destructive  act  of  the  defendant 
Chief  Justice  Coolby  says :  "If  a  family  of  several  chil- 
dren should  be  found,  without  known  cause,  to  be  idiotic, 
or  subject  to  mental  delusions,  the  inference  of  hereditary 
transmission  would  in  many  cases  be  entirely  conclusive, 
notwithstanding  the  inability  to  point  out  anything  of  a 
similar  character  in  any  ancestor.  Insanity  in  a  part  of 
the  children  only  would  be  less  conclusive;  but  the  ad- 
missibility of  the  evidence  in  these  cases  cannot  depend 
upon  its  quantity  and  it  could  never  be  required  that  it 
should  amount  to  a  demonstration.  In  some  cases  its 
force  must  be  small;  in  others  it  will  prove  hereditary 
taint  with  great  directness.  We  think  evidence  of  mental 
unsoundness  on  the  part  of  a  brother  or  sister  of  the  per- 
son whose  competency  is  in  question,  is  admissible,  and 
that  the  jury  should  be  allowed  to  consider  it  in  con- 
nection with  all  the  other  evidence  bearing  upon  that 
subject"  ^ 

In  Walsh  v.  People,  supra,  a  leading  case,  one  of  the 
defenses  interposed  was  that  the  accused  was  afflicted 
with  insanity  superinduced  by  epilepsy.  An  effort  was 
made  to  show  that  the  brother  was  suffering  from  the 
same  malady.  The  trial  court  ruled  that  it  was  not 
shown  that  epilepsy  induced,  or  tended  to  induce,  insani- 
ty, or  that  the  disease  was  transmissible.  The  court 
said :  "The  insanity  of  parents,  or  relatives,  is  also  ad- 
missible upon  the  issue  of  insanity.  It  tends  to  show  an 
hereditary  taint,  and  supplements  evidence  of  insanity 
of  the  accused.  When  the  question  as  to  the  conduct  of 
the  plaintiffs  brother  was  asked,  it  had  neither  been 
shown  that  the  father  was  insane,  or  that  the  prisoner 
was  afflicted  with  epilepsy,  or  other  disease.  The  con- 
duct of  the  brother  as  an  isolated,  independent  fact,  was 
wholly  immaterial,  and  the  question  asked  did  not  neces- 
sarily point  to  evidence  of  insanity  in  him.  We  think  the 
Vol.  cclxiv— 24 


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370         COMMONWEALTH  v.  DALE,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

fair  construction  of  the  ruling  of  the  court  was,  that  the 
defense  should  first  show  that  epilepsy  is,  or  tends  to 
produce,  insanity,  and  that  the  disease  is  transmissible 
before  entering  into  the  general  subject  of  the  conduct  of 
the  brother." 

In  In  re  Myer's  Will,  supra,  the  court  says :  "The  case 
is  barren  of  facts  which  tend  to  show  that  the  paresis 
with  which  the  mother  and  brother  of  testatrix  are  said 
to  have  been  afflicted  was  acquired  by  them  under  cir- 
cumstances that  would  render  it  transmissible  so  as  to 

taint  the  family  blood The  medical  writers  differ 

as  to  its  cause  or  causes Whether  the  particular  form 

of  the  disease  from  which  the  testatrix  and  her  family 
suffered  was  of  such  a  transmissible  character  that  she 
might  be  said  to  have  derived  it  from  her  ancestors  can- 
not be  determined  from  the  evidence  in  the  record 

There  must  be  evidence  tending  to  show  at  least  that 
such  diseases  are  hereditary  or  transmissible." 

It  is  clear  that  the  great  weight  of  authority  seems  to 
be  that  if  insanity  is  shown  in  the  accused,  and  insanity 
be  shown  in  collateral  kindred  of  not  too  remote  a  degree, 
and  the  insanity  with  which  each  suffers  is  transmissible 
or  hereditary  in  that  it  may  or  will  reappear  in  some 
form  or  symptom  in  a  descendant,  no  matter  what  symp- 
tom it  may  take  in  the  descendant,  such  evidence  may  be 
introduced  without  showing  insanity  in  the  direct  line ; 
i.  e.,  parents  or  grandparents.  This  would  dispose  of  the 
objection  by  the  court  below  and  it  is  further  emphasized 
by  the  fact  that  the  witnesses  who  testify  to  insanity 
in  the  ancestors,  either  direct  or  collateral,  should  do  so 
from  personal  knowledge  and  observation  and  not  from 
reputation:  Walker  v.  The  State,  102  Ind.  502;  1  N.  E. 
Rep.  856 ;  People  v.  Koerner,  154  N.  Y.  355 ;  48  N.  E.  Rep. 
731 ;  State  v.  Windsor,  supra.  But  it  must  still  be  shown 
that  the  disease  was  hereditary  or  transmissible,  as  in- 
dicated. There  is  not  a  scintilla  of  evidence  to  show  the 
form  or  symptom  of  the  disease  with  which  the  collateral 


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COMMONWEALTH  v.  DALE,  Appellant.         371 
1919.]  Opinion  of  the  Court. 

kinsmen  suffered.  The  accused  was  afflicted  with  melan- 
cholia. Was  it  acquired  by  him  under  such  circumstances 
that  the  jury  might  find  that  it  had  been  transmitted  to 
him  by  some  ancestor  and  that  the  brothers,  sister,  aunt 
and  cousins  were  in  turn  suffering  from  an  insanity  like- 
wise transmissible?  Not  that  they  suffered  from  the 
same  symptom,  but  a  transmissible  symptom.  The  vari- 
ous forms  of  this  disease  are  so  numerous  and  complex, 
the  subject  so  difficult,  that  in  due  protection  of  the  or- 
derly administration  of  the  criminal  law  it  becomes  nec- 
essary to  insist  that,  before  evidence  to  establish  heredi- 
tary taint  be  introduced,  proof  should  be  present  that 
the  insanity  in  the  collateral  kinsmen  was  transmissible, 
and  not  nonhereditary,  for  it  is  just  as  probable  in  this 
case  that  the  insanity  of  the  collaterals  was  produced 
from  some  exciting  cause,  such  as  grief,  terror,  disappoint- 
ed affection,  anxiety,  great  joy  or  intense  worry ;  or  from 
some  physical  cause  such  as  drunkenness,  use  of  opium 
or  other  narcotics,  a  blow  on  the  head,  exposure  to  severe 
heat  or  cold,  or  other  physical  causes.  As  the  offer  was 
merely  to  show  that  they  were  in  an  insane  asylum,  or 
were  of  unsound  mind,  it  was  clearly  insufficient,  and  as 
there  are  many  and  varied  forms  of  insanity,  the  court, 
of  course,  could  not  take  judicial  notice  of  a  physiological 
fact  on  which  the  medical  profession  is  not  in  unanimous 
accord.  Nor  should  the  evidence  have  been  received,  and 
the  Commonwealth  by  cross-examination  be  required  to 
show  nonhereditary  cause.  As  we  said  in  opening,  the 
burden  is  on  the  accused  to  lay  his  foundation  for  the 
admission  of  such  evidence.  The  benefit  (if  such  it 
was)  of  this  evidence  was  not  entirely  lost,  for  reference 
to  one  of  the  children  being  in  an  asylum  was  made  in 
the  testimony. 

The  facts  show  a  wilful,  premeditated  murder,  the  case 
was  submitted  by  a  charge  free  from  substantial  com- 
plaint, the  defendant  had  the  benefit  of  able  counsel,  and 
there  is  no  error  of  law  to  disturb  the  judgment  entered 
by  the  court  below. 


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372  COMMONWEALTH  v.  DALE,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

The  assignments  of  error  are  all  overruled,  the  judg- 
ment is  affirmed  and  the  record  is  remitted  for  the  pur- 
pose of  execution  according  to  law. 


Eeitmyer  v.  Coxe  Bros.  &  Co.,  Inc.,  Appellant 

Workmen's  compensation — Contract  as  to  wages  of  a  miner — Ex- 
press contract  —  Implied  contract  —  Deduction  for  materials  and 
tools — Improper  findings — Act  of  June  2, 1915,  P.  L.  7S6. 

1.  Where  in  a  proceeding  under  the  Workmen's  Compensation 
Act,  to  secure  compensation  for  the  death  of  plaintiff's  husband,  a 
miner,  it  appears  that  the  deceased  was  paid  regular  wages  of  $22 
per  week  for  about  six  months,  less  a  deduction  for  supplies  and 
tools  amounting  in  the  aggregate  to  $49.33  without  objection  by 
him  for  such  deduction,  it  is  reversible  error  for  the  referee,  the 
workmen's  compensation  board  and  the  court  of  common  pleas  to 
decline  to  make  any  deduction  for  supplies  and  materials,  in  de- 
termining the  wages  as  a  basis  for  compensation,  on  the  ground 
that  there  was  no  express  agreement  in  the  contract  of  hiring  for 
such  deduction. 

2.  In  such  a  case  an  implied  agreement  may  be  inferred  from  the 
conduct  of  the  parties.  This  is  a  question  of  law  to  be  passed  upon 
by  the  court  below,  and  the  case  will  be  remanded  to  that  court  to 
pass  upon  the  question  of  the  existence  of  the  implied  contract, 
should  the  ascertained  facts  be  found  sufficient  therefor;  if  not, 
to  remand  the  record  to  the  compensation  board  with  instructions 
to  find  further. 

3.  The  legislature  did  not  purpose  to  confine  hiring  contracts 
with  which  the  act  deals  to  express  contracts,  to  the  exclusion  of 
contracts  which  arise  by  implication  of  law  where  no  express  con- 
tract exists,  but  yet  where  circumstances  are  shown  which,  accord- 
ing to  the  ordinary  course  of  business  dealings  and  the  ordinary 
understanding  of  men,  show  a  mutual  intention  to  contract. 

Argued  Feb.  18,  1919.  Appeal,  No.  100,  Jan.  T.,  1919, 
by  defendant,  from  order  of  C.  P.  Schuylkill  Co.,  Sept. 
T.,  1916,  No.  297,  dismissing  appeal  from  decision  of 
Workmen's  Compensation  Board  confirming  an  award  of 
referee  in  case  of  Mrs.  Jacob  Reitmyer  v.  Coxe  Bros.  & 


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RBITMYBR  v.  COXE  BROS.  &  CO.,  Appellant.    373 
1919.]  Statement  of  Facts — Opinion  of  the  Court. 

Co.,  Inc.    Before  Bbown,  C.  J.,  Stbwabt,  Mosohziskbb, 
Walling  and  Kbphabt,  J  J.   Reversed. 

Appeal  from  order  of  Workmen's  Compensation  Board 
affirming  an  award  of  the  referee. 
The  court  dismissed  the  appeal.    Defendant  appealed. 

Error  assigned  was  in  dismissing  the  appeal 

Daniel  W.  Kaercher^  for  appellant. 

Roger  J.  Dever,  with  him  E6ajo.  E.  Beidlenum,  for  ap- 
pellee. 

Opinion  by  Mb.  Justice  Stbwabt,  April  21, 1919 : 
The  appeal  is  from  the  judgment  of  the  Court  of  Com- 
mon Pleas  of  Schuylkill  County,  sustaining  an  award 
of  the  compensation  board  in  the  matter  of  the  claim  of 
Mrs.  Jacob  Reitmyer,  widow,  against  Coxe  Brothers 
&  Co.,  Inc. 

In  determining  the  amount  of  wages  earned  by  the 
employee  as  the  basis  of  compensation  for  the  ascertain- 
ment of  the  amount  of  compensation  to  be  awarded,  the 
referee  adopted  the  wage  rate  agreed  upon  by  the  parties 
but  declined  to  make  any  deduction  therefrom  for  or  on 
account  of  supplies,  tools  and  other  things  furnished  and 
paid  for  by  the  employer,  and  which  were  necessary  to 
the  performance  of  the  contract  by  the  employee.  The 
reason  assigned  by  the  referee  for  this  conclusion  was 
as  follows :  "The  contract  at  hiring  did  not  specifically 
provide  that  the  value  of  material,  supplies,  tools  and 
other  things  necessary  for  the  performance  of  the  em- 
ployee's contract  should  be  deducted  from  the  employee's 
gross  earnings,  and  the  contract  did  not  specifically  pro- 
vide that  the  employer  was  to  furnish  them  and  that 
the  employee  must  procure  them  from  the  employer  and 
no  one  else."  Appeal  was  taken  to  the  compensation 
board  with  the  result,  that  without  further  findings,  the 
award  of  the  referee  was  sustained  and  appeal  dismissed. 


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374    REITMYER  v.  COXB  BROS.  &  CO.,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 
An  appeal  followed  to  the  court  of  common  pleas  with 
the  result  that  the  award  of  the  referee  and  the  decree 
of  the  board  were  alike  sustained  and  the  appeal  dis- 
missed. The  matter  now  comes  before  us  on  appeal  from 
the  judgment  of  the  court  of  common  pleas.  The  record 
of  the  proceeding  from  its  beginning  throughout  is  un- 
satisfactory in  that  it  fails  to  discover  the  one  and  only 
issue  in  the  case.  The  effort  of  appellant  before  the 
referee  was  to  derive  from  the  admitted  facts  and  circum- 
stances,  not  appearing  however  in  specific  findings  of  the 
referee,  but,  as  appellant  insists,  clearly  derivable  from 
what  the  referee  styles  his  "Review,"  a  parol  contract 
between  employer  and  employee  regulating  and  deter- 
mining the  terms  of  the  latter^  employment.  His  main 
reliance  to  this  end  was  upon  these  facts:  Reitmyer's 
employment  covered  a  period  extending  from  1st  July, 
1915,  to  10th  January,  1916,  when,  on  the  date  last  men- 
tioned, he  met  with  the  accident  which  resulted  in  his 
death  on  the  same  day.  His  wage  earnings  were  f  22  per 
week,  payable  semimonthly;  the  supplies  furnished  by 
his  employer  during  the  period  amounted  to  $49.33 ;  he 
was  paid  during  this  period  his  full  earnings  less  deduc- 
tion for  the  supplies  furnished  as  above,  without  objec- 
tion or  complaint  from  him  so  far  as  the  evidence  shows, 
making  in  all  twelve  consecutive  payments,  as  appears 
from  the  pay  rolls  of  the  coal  company  which  were  ad- 
mitted in  evidence.  The  compensation  board,  in  its  opin- 
ion sustaining  the  referee's  award,  says,  "We  have  care- 
fully reviewed  the  testimony  in  this  case and  are 

of  opinion  that  no  such  contract  of  hiring  as  contem- 
plated by  the  act  was  established  by  competent  proof, 
and  the  findings  of  the  referee  that  the  cost  of  supplies, 
etc.,  should  not  be  deducted  in  computing  compensation 
due  defendants  should  be  sustained."  It  will  be  observed 
that  the  referee  rested  his  adverse  conclusion  upon  the 
ground  that  "The  contract  of  hiring  in  this  case  did  not 
specifically  provide  that  the  value  of  supplies,  tools,  etc., 
should  be  deducted  from  the  employee's  gross  earnings 


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RBITMYBB  v.  COXE  BROS.  &  CO.,  Appellant.    375 

1919.]  Opinion  of  the  Court. 

in  making  the  computation/'  while  the  compensation 
board  rested  its  affirmance  of  the  referee's  conclusion  on 
the  ground  that  "no  such  contract  of  hiring  as  contem- 
plated by  the  act  was  established  by  competent  proof." 
Both  conclusions  seem  to  rest  on  the  idea  that  the  act  of 
assembly  contemplates  some  particular  form  or  kind  of 
agreement  of  hiring  to  which  all  must  conform  to  be  ef- 
fective in  excluding  from  wage  earnings  in  ascertaining 
the  basis  of  compensation,  the  cost  of  supplies  furnished 
the  wage  earner  by  the  employer.  To  sustain  either  of 
these  conclusions  would  be  to  impute  to  the  legislative 
mind  a  purpose  to  confine  hiring  contracts  with  which 
the  act  deals  to  express  contracts,  to  the  exclusion  of  that 
class  of  contracts  which  arises  by  implication  of  law 
where  no  express  contract  exists,  but  yet  where  cir- 
cumstances appear  which,  according  to  the  ordinary 
course  of  business  dealings,  and  the  ordinary  under- 
standing of  men,  show  a  mutual  intention  to  contract. 
When  such  conditions  are  shown  the  law  will  not  simply 
imply  a  contract,  but  it  will  derive  the  terms  of  a  con- 
tract so  far  as  practicable  from  the  conditions  shown. 
No  warrant  is  to  be  found  in  the  act  for  either  the  con- 
clusion of  the  referee  or  the  compensation  board.  "Every 
induction,  inference,  implication  or  presumption  in  rea- 
soning of  any  kind,  is  a  logical  conclusion,  derived  from 
and  demanded  by,  certain  data  or  ascertained  circum- 
stances. If  such  circumstances  demand  the  conclusion 
of  a  contract  to  account  for  them,  a  contract  is  proved ; 
if  not,  not" :  Hertzog  v.  Hertzog,  29  Pa.  465. 

The  error  complained  of  in  the  present  appeal  from  the 
judgment  of  the  court  below  is  the  affirmance  by  the 
learned  court  of  the  award  and  decree  of  the  compensa- 
tion board  on  the  ground  set  forth  in  the  opinion  filed, 
which  reads  as  follows:  "It  is  contended  in  this  case 
that  these  amounts  should  be  deducted  in  computing  the 
term  'wages.'  In  the  opinion  filed  by  the  commission  in 
the  first  paragraph  appears  the  following  'The  first  ques- 
tion is  one  of  contract.    It  was  not  reduced  to  writing, 


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376    REITMYBB  v.  COXB  BROS.  &  CO.,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

and  one  of  the  contracting  parties  is  dead.  There  was  no 
evidence  to  show  that  the  contract  of  hiring  entered  into 
between  the  claimant's  deceased  husband  and  the  defend- 
ant specifically  provided  that  the  employer  should  fur- 
nish or  pay  for  labor,  material,  supplies,  or  other  things 
necessary  for  the  performance  of  the  employee's  contract 
with  his  employer  and  deduct  the  cost  thereof  from  the 
employee's  gross  earnings.'  It  will  be  seen  from  this  that 
the  compensation  board  has  found  as  a  fact  that  such 
contract  did  not  exist.  We  have  no  power  to  reverse  their 
findings  of  facts  and  are  therefore  bound  by  this  conclu- 
sion. This  being  so,  under  the  plain  terms  of  the  act, 
the  employer  would  not  be  entitled  to  deduct  these 
amounts  in  order  to  form  the  basis  of  a  computation  on 
the  earnings  of  his  employee.  We  are,  therefore,  of  the 
opinion  that  the  conclusion  reached  by  the  compensation 
board  was  correct." 

There  is  no  pretense  that  an  express  contract  of  hiring 
existed  between  the  parties.  Whether  from  the  facts  and 
circumstances  shown  an  implied  hiring  contract  could 
be  derived  was  a  question  of  law  and  should  have  been 
passed  upon  by  the  court.  It  was  error  to  decline  to  do 
so,  and  for  this  reason  the  judgment  calls  for  a  reversal. 
We  accordingly  so  order  and  remand  the  record  to  the 
court  below  to  pass  upon  the  question  we  have  indicated, 
should  the  ascertained  facts  be  found  sufficient  therefor; 
if  not,  to  further  remand  the  record  to  the  compensation 
board  with  instructions  to  find  further.  We  suggest,  as 
matter  of  law  to  be  observed  in  any  event,  that  the  period 
of  compensation  under  the  Workmen's  Compensation  Act 
of  2d  June,  1915,  in  cases  of  instantaneous  death  of  the 
employee  does  not  begin  until  fourteen  days  after  death. 
So  much  Has  been  decided  in  Bakie  v.  Jefferson,  etc.,  Coal 
&  Iron  Co.,  262  Pa.  444. 

Judgment  reversed. 


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S.  G.  V.  CO.  v.  S.  G.  V.  CO.  377 

1919.]  SyUatroa— Opinion  of  the  Court. 

S.  G.  V.  Co.  v.  S.  G.  V.  Co. 

Contract — Sale — Evidence — Master's  findings  of  facts. 

A  claim  against  an  insolvent  corporation  in  the  hands  of  a  re- 
ceiver, for  breach  of  contract,  will  not  be  allowed,  where  a  master 
appointed  to  make  distribution,  reports  findings  of  fact  from  suf- 
ficient and  competent  evidence  and  sustained  by  the  court,  that 
there  was  an  oral  agreement  by  the  claimant  to  deliver  to  the  com- 
pany certain  patented  devices,  which  were  to  be  accepted  if  they 
proved  satisfactory,  that,  after  trial,  for  a  considerable  time  they 
failed  to  meet  the  requirements  of  the  company  and  were  com- 
mercially valueless,  and  that  because  of  this  the  company  discon- 
tinued their  further  use. 

Argued  March  3, 1919.  Appeal,  No.  105,  Jan.  T.,  1919, 
by  Vulcan  Motor  Devices  Company,  from  decree  of  C.  P. 
Berks  Co.,  No.  1134,  Equity  Docket  1914,  overruling  ex- 
ceptions to  master's  report  in  case  of  S.  G.  V.  Company 
v.  S.  G.  V.  Company.  Before  Stewart,  Moschziskhb, 
Frazer,  Walling  and  Kbphart,  J  J.   Affirmed. 

Exceptions  to  report  of  Stephen  M.  Meredith,  Mas- 
ter, appointed  to  make  distribution  of  a  fund  derived 
from  the  assets  of  the  S.  G.  V.  Company,  an  insolvent 
corporation. 

The  court  dismissed  the  exceptions  to  the  report.  The 
Vulcan  Motor  Devices  Company,  a  creditor,  appealed. 

Errors  assigned  were  in  dismissing  exceptions  to  the 
master's  report. 

Ellis  Ames  Ballard,  with  him  Harvey  F.  Eebnley,  for 
appellant. 

0.  H.  Ruhl,  for  appellee. 

Opinion  by  Me.  Justice  Frazer,  April  21, 1919: 
The  S.  G.  V.  Company,  a  corporation  engaged  in  the 
manufacture  of  automobiles,  became  insolvent  and  a  re- 

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878  S.  G.  V.  CO.  v.  S.  G.  V.  CO. 

Opinion  of  the  Court.  [264  Pa. 

ceiver  was  appointed  to  liquidate  its  assets.  The  Vul- 
can Motor  Devices  Company,  one  of  its  creditors,  pre- 
sented a  claim  for  $11,465.12.  Of  this  amount  f  1,325.92 
was  admitted  to  be  due,  the  balance,  f  10,139.20,  being 
disputed. 

The  Vulcan  company  owned  a  patented  electrical  gear 
shift  for  automobiles,  and,  at  the  request  of  the  president 
of  the  S.  G.  V.  Company,  two  samples  of  the  device  were 
installed  in  cars  manufactured  by  the  latter  company, 
and  the  claim  is  now  made  that  the  S.  G.  V.  Company 
agreed  to  purchase  500  gear  shifts,  together  with  an 
equal  number  of  rotary  switches,  or  swivel  devices,  an 
appliance  required  for  use  in  connection  with  each  gear 
shift.  A  number  of  these  inventions  were  completed  by 
the  Vulcan  company  and  accepted  by  the  automobile 
company  and  the  present  action  is  based  on  a  claim  for 
the  price  of  the  remainder  of  the  completed  order  the 
company  failed  to  accept  and  for  the  cost  of  labor  and 
materials  used  in  those  not  completed. 

The  defense  is  based  on  the  contention  that  no  contract 
existed  between  the  parties  for  a  definite  number  of 
shifts  or  switches,  that  the  S.  G.  V.  Company  was  bound 
to  accept  and  pay  for  them  only  on  condition  the  devices 
operated  satisfactorily,  that  those  delivered  were  not  sat- 
isfactory, but  on  the  contrary  were  so  defective  and  in- 
efficient the  company  was  obliged  to  discontinue  the  use 
of  the  contrivance  on  its  cars.  The  master  found  the 
orders  were  given  in  fact  on  condition  the  devices  proved 
satisfactory ;  that  after  trial  for  a  considerable  time  they 
failed  to  meet  the  requirements  of  the  company  and  were 
commercially  valueless  and,  because  of  their  failure  to 
operate  properly,  the  S.  G.  V.  Company  discontinued 
their  use  on  its  automobiles;  and  from  these  findings, 
concluded  there  could  be  no  further  recovery  under  the 
contract  beyond  the  sum  admitted  to  be  due. 

Under  the  familiar  rule  followed  in  many  cases  the 
findings  of  an  auditor,  based  upon  competent  evidence, 
and  especially  when  sustained  by  the  court  below,  will 


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S.  G.  V.  CO.  v.  S.  G.  V.  CO.  379 

1919.]  Opinion  of  the  Court 

not  be  set  aside  in  absence  of  clear  error:  Strause  v. 
Berger,  220  Pa.  367,  and  cases  there  cited;  Lentz's  Est., 
261  Pa.  530. 

The  president  of  the  Vulcan  company  testified  that  in 
a  preliminary  conversation  with  the  president  of  the  S. 
G.  V.  Company,  500  gear  shifts  were  mentioned  as  the 
number  his  company  would  require,  and  subsequently 
a  written  contract  was  prepared  and  considered  by  the 
parties,  though  never  executed.  On  the  other  hand,  the 
president  of  the  S.  G.  V.  Company  testified  he  estimated 
they  could  use  500  of  the  devices,  this  number  being  the 
expected  output  of  their  cars  during  the  year,  it  being 
understood,  however,  the  appliances  were  to  work  prop- 
erly and  to  the  satisfaction  of  the  S.  G.  V.  Company,  and 
that  the  signing  of  the  contract  was  purposely  delayed  to 
ascertain  whether  they  would  so  operate.  Defendant's 
factory  manager,  who  was  present  at  the  interview,  tes- 
tified his  company  expected  to  use  500  of  the  appliances 
on  their  cars,  and  that  the  president  refused  to  sign  the 
contract  "until  the  whole  thing  was  satisfactory"  and 
upon  this  condition  the  verbal  order  was  given.  That 
the  devices  furnished  failed  to  operate  properly  is  estab- 
lished by  ample  testimony.  It  thus  appears  sufficient 
evidence  was  produced  to  support  the  conclusion  of  the 
master  that,  although  a  written  agreement  was  contem- 
plated, none  was  actually  entered  into,  and  orders  for 
specific  devices  were  given  at  different  times  on  condition 
they  were  to  be  satisfactory  to  the  purchasing  com- 
pany when  delivered,  that  the  appliances  delivered  were 
faulty  and  deficient  in  material,  workmanship  and  de- 
sign to  such  extent  as  to  render  their  use  impossible  and 
for  that  reason  the  written  contract  was  not  executed. 

The  judgment  is  affirmed. 


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380  CRAIG  v.  CRAIG  et  aL,  Appellants. 

Syllabus— Statement  of  Facts.  [264  Pa. 

Craig  v.  Craig  et  aL,  Appellants. 

Equity — Parties — Title — Will — Presumption — Jurisdiction — Dis- 
missal of  bill  without  prejudice. 

1.  Only  a  party  in  interest  can  invoke  the  equity  powerg  of  a 
court  to  procure  the  cancellation  of  a  deed,  and  such  interest  must 
be  averred  and  proved. 

2.  Where  on  a  bill  in  equity  for  the  cancellation  of  a  deed  exe- 
cuted by  plaintiff's  father,  it  appears  that  although  the  father  died 
testate  his  will  was  not  produced  in  evidence,  and  there  is  no  proof 
to  show  how  plaintiff  had  acquired  any  interest  in  the  land  covered 
by  the  deed,  the  bill  will  be  dismissed.  There  is  no  presumption 
that  the  father  died  intestate  as  to  the  land  in  question,  or  that  he 
devised  it  to  plaintiff. 

3.  The  fact  that  the  bill  purports  to  be  filed  by  the  plaintiff  "for 
himself  and  in  behalf  of  all  other  persons  in  interest,"  is  imma- 
terial, inasmuch  as  it  is  fatally  defective  for  want  of  a  necessary 
plaintiff. 

4.  In  such  a  case  the  bill  is  also  fatally  defective  for  want  of 
necessary  defendants,  where  it  appears  that  the  deed  from  the 
father  was  made  to  two  of  his  sons,  who  were  plaintiff's  brothers, 
and  that  the  defendants  named  were  the  executors  and  heirs  of  one 
of  the  sons,  and  the  widow  of  the  other,  but  no  proof  of  the  will 
of  the  first  is  offered,  and  it  is  not  shown  whether  the  second  died 
testate  or  intestate  or  who  were  his  heirs  or  devisees. 

5.  The  court  in  dismissing  the  bill  in  such  a  case  for  lack  of 
necessary  parties,  will  do  so  without  prejudice  to  plaintiff's  rights, 
or  those  of  any  other  party,  in  any  future  action  at  law  or  in 
equity  touching  the  deed  in  question,  or  the  title  of  the  land  em- 
braced therein. 

Argued  March  10,  1919.  Appeal,  No.  154,  Jan.  T., 
1919,  by  defendants,  from  decree  of  C.  P.  Carbon  Co., 
Jan.  T.,  1913;  No.  1,  in  Equity,  for  plaintiff  in  equity 
in  case  of  Robert  Craig  (David  M.  Craig,  administrator, 
substituted),  for  the  benefit  of  himself  and  for  the  bene- 
fit of  all  other  persons  interested,  v.  Thomas  B.  Craig, 
Hector  Tyndale  Craig,  Emmo  Craig,  Charles  S.  Craig,  P. 
Insley  Craig,  Allen  D.  Craig,  Mary  A.  Craig,  Henrietta 
I.  Griffin  and  Thomas  B.  Craig,  Charles  S.  Craig,  Hector 


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CRAIG  v.  CRAIG  et  aL,  Appellants.  381 

1919.]  Statement  of  Facts — Opinion  of  the  Court. 
Tyndale  Craig,  Executors  of  the  last  Will  and  Testa- 
ment of  John  Craig,  deceased,  and  Mrs.  Sarah  Martin, 
widow  of  Thomas  Craig,  Jr.,  deceased.  Before  Brown, 
C.  J.,  Stewart,  Fbazbb,  Walling  and  Kbphabt,  JJ. 
Reversed. 

Bill  in  equity  for  the  cancellation  of  a  deed.  Before 
Barber,  P.  J. 

The  court  entered  a  decree  of  cancellation. 

The  heirs  and  executors  of  John  Craig,  deceased,  ap- 
pealed. 

Error  assigned  was  the  decree  of  the  court. 

Ben  Branch,  of  FreymaM,,  Thomas  &  Branch,  for  ap- 
pellants.— The  court  had  no  jurisdiction  for  lack  of  nec- 
essary parties:  Holton  v.  New  Castle  Ry.  Co.,  138  Pa. 
Ill ;  Hartley  t.  Langkamp,  243  Pa.  550. 

George  E.  Gray,  with  him  Dewalt  &  Heydt,  for  ap- 
pellees. 

Opinion  by  Mr.  Justice  Walling,  April  21, 1919 : 
This  is  a  suit  in  equity  for  the  cancellation  of  a  deed. 
In  1858  Thomas  Craig,  Sr.,  late  of  Carbon  County,  died 
testate,  leaving  six  children,  including  Robert,  John  and 
Thomas,  Jr.  In  1856  Thomas  Craig,  Sr.,  and  wife  made 
and  executed  a  deed  to  their  sons  John  and  Thomas,  Jr., 
for  two  tracts  of  land  situated  in  East  Penn  Township, 
said  county,  containing  about  two  hundred  and  fifty 
acres;  this  deed  was  recorded  in  1911.  John  and  Thom- 
as, Jr.,  were  appointed  and  qualified  as  executors  of  their 
father's  will,  and  served  as  such  as  long  as  they  lived, 
Thomas,  Jr.,  having  died  prior  to  1870  and  John  in  1908. 
There  is  nothing  to  indicate  that  either  of  them  ever 
made  any  claim  to  this  land  under  the  deed  and  Robert 
brought  this  suit  in  1913  to  have  it  decreed  null  and 
void  because  never  delivered.    The  heirs  and  executors 


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382  CRAIG  v.  CRAIG  et  aL,  Appellants. 

Opinion  of  the  Court  [364  Pa. 

of  John,  who  died  testate,  and  the  widow  of  Thomas,  Jr., 
were  made  defendants  herein.  It  does  not  appear  wheth- 
er Thomas,  Jr.,  died  testate  or  intestate,  or  who  were  his 
heirs  or  devisees,  and  no  one  shown  to  represent  his  in- 
terest was  made  party  to  this  suit. 

The  case  was  heard  upon  bill,  answer,  replication  and 
testimony  from  which  the  chancellor  found,  inter  alia, 
that  the  deed  was  never  delivered,  but  discovered  among 
the  papers  of  Thomas  Craig,  Sr.,  long  after  his  death. 
This  finding  was  approved  by  the  court  below  and  a  final 
decree  entered  that  said  deed  was  void  and  of  no  effect, 
but  adding,  "That  the  aforesaid  order  and  decree  is  made 
without  prejudice  to  the  heirs  and  devisees  of  Thomas 
Craig,  Jr.,  other  than  his  widow."  Defendants  brought 
this  appeal  and  their  first  contention  is  that  for  want  of 
necessary  parties,  both  as  plaintiffs  and  defendants,  the 
court  lacked  jurisdiction  to  make  the  decree.  This  con- 
tention is  well  founded,  for  there  is  neither  allegation  nor 
proof  that  the  plaintiff,  Robert  Craig,  had  any  interest 
in  the  land  embraced  in  the  deed.  His  father's  will  was 
not  in  evidence  and  there  is  nothing  to  indicate  what  dis- 
position he  made  of  this  land.  As  he  left  a  will,  there  is 
no  presumption  that  he  died  intestate  as  to  the  land  in 
question  or  that  he  devised  it  to  plaintiff.  Only  a  party 
in  interest  can  invoke  the  equity  powers  of  a  court  to 
procure  the  cancellation  of  a  deed,  and  such  interest 
must  be  averred  and  proved.  True,  the  plaintiffs  bill 
purports  to  be  filed,  "for  himself  and  in  behalf  of  all  other 
persons  in  interest" ;  but  what  his  interest  is,  if  anything, 
or  who  the  other  persons  in  interest  are  or,  what  au- 
thority he  has  to  represent  them,  nowhere  appears;  so 
the  bill  is  fatally  defective  for  want  of  a  necessary  plain- 
tiff. It  is  equally  so  for  lack  of  necessary  defendants ; 
John  Craig's  heirs  and  executors  are  brought  upon  the 
record;  but  as  his  will  was  not  offered  in  evidence,  it 
does  not  appear  that  they  have  any  interest  in  the  land 
in  question.  There  is  no  presumption  that  a  testator's 
executors  or  his  heirs  at  law  are  the  devisees  of  any  par- 


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CRAIG  v.  CRAIG  et  aL,  Appellants.  388 

1919.]  Opinion  of  the  Court, 

ticular  part  of  his  real  estate,  or  that  he  died  intestate 
as  to  such  part.  So  far  as  averred  or  proved  neither 
plaintiff  nor  defendants  have  any  interest  in  the  land  em- 
braced in  the  deed  in  question,  and  for  that  reason  the 
court  was  without  jurisdiction  to  decree  it  null  and  void. 
This  objection,  although  not  raised  by  demurrer  or  an- 
swer, was  made  in  the  court  below  before  final  decree  and 
should  have  prevailed.  It  is  never  too  late  to  raise  the 
question  of  jurisdiction  in  equity  for  want  of  necessary 
parties:  Hartley  v.  Langkamp  &  Elder,  243  Pa.  550; 
Heck  v.  Collins,  231  Pa.  357.  And  as  to  necessary  parties 
see  16  Cyc.  184;  20  R.  C.  L.  pp.  667,  668;  Pomeroy's 
Equity  Jurisprudence  (3d  ed.),  sec.  114;  Lance's  App., 
112  Pa.  456.  There  must  be  a  specific  averment,  in  the 
bill  itself,  of  the  facts  showing  the  plaintiff's  interest  in 
the  subject-matter  of  the  suit :  Holtan  v.  New  Castle  By. 
Co.,  138  Pa.  111. 

Those  representing  the  interest  of  Thomas  Craig,  Jr., 
should  have  been  joined  as  defendants.  Under  the  deed 
they  are  the  ostensible  owners  of  one-half  of  the  land  in 
question,  and  the  rights  of  all  parties  should  be  de- 
termined in  one  suit,  otherwise  we  might  have  the  anom- 
alous situation  of  a  deed  to  joint  vendees  void  as  to  one 
for  lack  of  delivery  while  valid  as  to  the  other.  However, 
the  court  below  was  not  in  error  in  saving  the  rights  of 
absent  parties  (Supreme  Court  Equity  Rules  21  and  26; 
Bittispaugh  v.  Lewis,  103  Pa.  1),  and  the  decree  would 
not  be  disturbed  on  that  ground.  As  the  disposition  we 
feel  constrained  to  make  of  this  case,  does  not  reach  its 
merits,  the  order  should  be  without  prejudice. 

The  decree  is  reversed  and  plaintiff's  bill  is  dismissed 
at  his  costs,  for  lack  of  necessary  parties,  without  prej- 
udice to  his  rights  or  those  of  any  other  party  in  any 
future  action  at  law  or  in  equity  touching  the  deed  in 
question  or  the  title  to  the  land  embraced  therein. 


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384  MACAN  v.  SCANDINAVIA  BELTING  CO.,  AppeL 

Syllabus.  [264  Pa. 


Macau  v.  Scandinavia  Belting  Company, 
Appellant. 

Be*  judicata— Parties — Corporation — Stockholder. 

1.  In  an  action  of  assumpsit  on  book  accounts  by  one  corporation 
against  another,  where  a  judgment  is  entered  adversely  to  the  de- 
fendant on  a  counterclaim  set  up  for  damages  for  rescission  of  a 
contract  alleged  to  have  been  assigned  to  it  by  its  largest  stock- 
holder, such  judgment  is  not  res  judicata,  in  a  subsequent  action 
by  such  stockholder  against  the  plaintiff  corporation  in  the  former 
suit,  for  damages  for  the  rescission  of  the  same  contract,  inasmuch 
as  the  parties  are  not  the  same.  The  fact  that  plaintiff  in  the  sec- 
ond suit  was  a  large  stockholder  of  the  corporation  which  was  the 
defendant  in  the  first  suit,  did  not  make  him  a  party  in  the  first 
suit,  within  the  meaning  of  the  rule  requiring  identity  of  parties 
to  make  a  judgment  in  one  proceeding  res  judicata  in  another. 

2.  Where  the  jury  expressly  found  in  the  first  case  that  there  was 
no  assignment  of  the  contract  in  question  by  the  stockholder  to  the 
corporation  and  overruled  the  claim  for  damages  for  this  reason, 
there  was  no  adjudication  on  the  merits,  and  the  first  case  was  not 
res  judicata  of  the  second. 

3.  The  fact  that  the  plaintiff  in  the  second  suit  testified  in  the 
first  suit,  that  he  had  made  such  assignment,  will  not  bar  him 
from  recovery  in  the  second  suit,  where  it  appears  that  he  was  in 
fact  mistaken,  in  thinking,  and  so  testifying,  that  certain  steps 
which  he  had  taken  constituted  a  valid  transfer  of  the  contract. 

4.  The  record  of  the  first  suit  does  not  conclusively  establish  the 
facts  testified  to  by  the  witness,  so  as  to  constitute  an  estoppel,  but 
only  is  evidence  of  a  declaration  or  admission  by  the  witness  that 
the  facts  were  as  stated,  and  affects  merely  his  credibility. 

Corporations — Stockholders — Separate  entity. 

5.  A  corporation  has  a  separate  entity  or  existence,  irrespective 
of  the  persons  who  own  its  stock,  and  this  rule  is  not  altered  by  the 
fact  that  the  greater  portion  or  even  the  entire  issue  of  stock  hap- 
pens to  be  held  by  one  person. 

Contract — Breach — Measure  of  damages — Damages — Profits. 

6.  The  measure  of  damages  for  the  wrongful  cancellation  of  an 
exclusive  sales  agency  contract,  is  the  value  of  the  contract  at  the 
time  of  the  breach,  and  if  it  reasonably  appears  that  profits  would 
be  realized,  if  the  contract  were  carried  out,  and  that  the  loss  of 


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MACAN  v.  SCANDINAVIA  BELTING  CO.,  Appel.  385 

1919.]  Syllabus— Statement  of  Facto, 

such  benefits  necessarily  followed  the  breach,  their  amount  may 
constitute  the  true  measure  of  damages.  % 

7.  The  amount  of  such  profits  are  necessarily  uncertain,  and  the  ( 
law  does  not  require  absolute  certainty  of  data  upon  which  they  ; 
are  estimated;  all  that  is  required  is  such  reasonable  certainty  ; 
that  damages  may  not  be  based  merely  upon  speculation  and  con-  ' 
jecture.  f 

Argued  March  10,  1919.  Appeal,  No.  205,  Jan.  T.,  ' 
1919,  by  defendant,  from  judgment  of  C.  P.  Northampton 
Co.,  June  T.,  1917,  No.  77,  on  verdict  for  plaintiff  in 
case  of  George  C.  Macan,  Jr.,  v.  Scandinavia  Belting  Co. 
Before  Brown,  C.  J.,  Stewart,  Frazbr,  Walling  and 
Simpson,  JJ.   Affirmed. 

Assumpsit  in  foreign  attachment  for  breach  of  Con- 
tract.   Before  Stewart,  P.  J. 

At  the  trial  defendant  presented  these  points,  inter 
alia: 

5.  The  measure  of  damages  claimed  by  the  plaintiff  is 
the  value  of  the  contract  at  the  time  of  its  alleged  breach. 
Such  damages  ar.e  necessarily  based  on  the  loss  of  future 
unearned  profits  and  are  therefore,  in  view  of  the  terms 
and  conditions  of  the  contract,  so  speculative  in  char- 
acter and  dependent  upon  commercial  and  changing  con- 
tingencies that  their  amount  cannot  be  ascertained  and 
determined  with  any  reasonable  degree  of  certainty,  and 
therefore  cannot  be  recovered.    Answer:  Refused.     (1) 

9.  George  C.  Macan,  Jr.,  the  plaintiff  herein,  is  es- 
topped in  the  present  suit  from  showing  his  individual 
ownership  in  or  title  to  the  contract  of  May  1, 1912,  ex- 
hibited with  and  made  part  of  his  statement  of  cause  of 
action,  for  the  reason  that  heretofore  subsequent  to  May 
1, 1914,  the  date  of  the  cancellation  by  the  Scandinavia 
Belting  Co.  of  said  contract,  the  Scandinavia  Belting 
Co.  brought  two  suits  in  this  court,  Nos.  7  and  18,  Sep- 
tember Term,  1914,  against  the  Macan  Jr.  Company,  a 
corporation  in  which  the  said  George  C.  Macan,  Jr,,  was 
the  principal  stockholder  and  president  of  the  corpora- 
Vol.  cclxiv— 25 

8 


386  MACAN  v.  SCANDINAVIA  BELTING  CO.,  AppcL 

Statement  of  Facts.  [264  Pa. 

tion.  In  said  two  suits  which  were  tried  together,  the 
defendant  corporation  pleaded  a  counterclaim  for  dam- 
ages based  upon  the  alleged  unlawful  cancellation  by  the 
Scandinavia  Belting  Company  of  the  same  identical  con- 
tract of  May  1,  1912,  which  pleading  of  counterclaim 
was  sworn  to  by  the  said  George  C.  Macan,  Jr.,  and  he 
testified  at  the  trial  of  the  issues  that  the  said  contract 
belonged  to  the  corporation,  the  Macan  Jr.  Company, 
and  insisted  by  his  counsel  in  the  argument  of  the  issues 
before  the  court  and  jury  that  the  Macan  Jr.  Company 
(the  corporation)  was  the  owner  of  the  contract  and  was 
entitled  to  damages  for  its  alleged  unlawful  cancellation 
by  the  Scandinavia  Belting  Company.  The  verdict  and 
judgment  were  in  favor  of  the  Scandinavia  Belting  Com- 
pany. The  present  suit  involves  the  same  subject-matter. 
George  C.  Macan,  Jr.,  cannot  now  be  permitted  to  show 
a  title  to  said  contract  different  from  that  he  formerly 
averred.  He  cannot  maintain  the  present  suit.  Answer : 
Befused.    (2) 

10.  Heretofore,  subsequent  to  May  1,  1914,  the  date 
when  the  Scandinavia  Belting  Company  cancelled  the 
contract  of  May  1,  1912,  exhibited  by  George  C.  Macan, 
Jr.,  as  part  of  his  statement  of  cause  of  action  in  the 
present  suit,  the  said  Scandinavia  Belting  Company 
brought  two  suits  in  this  court,  Nos.  7  and  18,  September 
Term,  1914,  against  the  Macan  Jr.  Company,  a  corpora- 
tion in  which  the  said  George  C.  Macan,  Jr.,  was  the 
principal  stockholder  and  president  of  the  corporation. 
In  said  two  suits  which  were  tried  together,  the  defendant 
corporation  pleaded  a  counterclaim  for  damages  based 
upon  the  alleged  unlawful  cancellation  by  the  Scandi- 
navia Belting  Company  of  the  same  identical  contract  of 
May  1, 1912.  The  issues  of  law  and  fact  thereupon  aris- 
ing were  duly  tried  by  the  court  and  jury,  and  resulted 
in  a  verdict  and  judgment  in  favor  of  the  Scandinavia 
Belting  Company  and  against  the  Macan  Jr.  Company; 
and  upon  appeal  by  the  Macan  Jr.  Company  to  the  Su- 
preme Court  of  Pennsylvania,  the  judgment  of  the  court 


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MACAN  v.  SCANDINAVIA  BELTING  CO.,  Appel.  387 

1919.],  Statement  of  Facts, 

below  in  favor  of  the  Scandinavia  Belting  Company  was 
sustained  and  all  the  assignments  of  error  by  the  Macan 
Jr.  Company  overruled.  In  the  trial  of  the  issues  arising 
upon  the  said  plea  of  counterclaim,  George  C.  Macan, 
Jr.,  testified  and  insisted  that  the  said  contract  of  May 
1, 1912,  belonged  to  the  Macan  Jr.  Company  although  it 
stood  in  his  individual  name,  and  that  the  Macan  Jr. 
Company  was  entitled  to  recover  damages  for  the  alleged 
unlawful  cancellation  of  the  contract  by  the  Scandinavia 
Belting  Company.  Whether  or  not  the  Macan  Jr.  Com- 
pany suffered  damages  was  the  issue  arising  under  the 
said  plea  of  counterclaim. 

George  C.  Macan,  Jr.,  is  concluded  by  the  judgment  in 
the  said  two  actions  by  the  Scandinavia  Belting  Com- 
pany against  the  Macan  Jr.  Company.  The  issue  arising 
under  the  plea  of  counterclaim  is  the  same  question  pre- 
sented by  the  pleadings  in  the  present  action  by  George 
C.  Macan,  Jr.,  against  the  Scandinavia  Belting  Com- 
pany. His  individual  rights,  whatever  they  might  be, 
growing  out  of  the  alleged  breach  of  the  contract  of  May 
1,  1912,  have  already  been  judicially  determined.  He 
was  an  interested  party  in  that  proceeding  as  principal 
stockholder  in  the  defendant  corporation.  He  cannot 
now  reopen  the  question,  it  is  res  adjudicata.  Answer : 
Befused.    (3) 

11.  Under  all  the  law  and  the  evidence  in  the  case,  the 
verdict  must  be  for  the  defendant.  Answer:  Be- 
fused.    (4) 

The  court  charged  the  jury  in  part  as  follows : 

[Now  I  shall  say  to  you  that  so  far  as  that  first  case  is 
concerned,  so  far  as  the  legal  effect  of  it  in  this  case  is 
concerned,  it  establishes  the  fact  that  this  contract  does 
not  belong  to  the  Macan  corporation,  that  is  what  the 
effect  of  the  verdict  of  the  other  jury  was,  that  it  was 
George  Macan's  contract  individually  and  not  the  Macan 
corporation's  contract.  So  do  not  spend  any  time  dis- 
cussing that  matter;  put  the  responsibility  on  me  and 
take  it  from  the  court  that  we  are  now  trying  this  case  of 


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388  MACAN  v.  SCANDINAVIA  BELTING  CO.,  AppeL 

Statement  of  Facta— Arguments.  [264  Pa. 

George  Macan  as  the  owner  of  the  contract  against  the 
Scandinavia  Belting  Company.]    (5) 

Verdict  and  judgment  for  plaintiff  for  $5,000.  De- 
fendant appealed. 

Errors  assigned,  among  others,  were  (1-5)  above  in- 
structions quoting  them  and  (8)  in  overruling  motion 
for  judgment  for  defendant  n.  o.  v. 

Robert  A.  Stotz,  with  him  F.  W.  Edgar,  for  appellant 
— The  case  was  res  judicata  by  the  former  suit :  Scandi- 
navia Belting  Co.  v.  Macan  Jr.  Co.,  258  Pa.  261;  Leh  v. 
D.,  L.  &  W.  R.  R.  Co.,  30  Pa.  Superior  Ct.  396;  Garber 
v.  Doersom,  117  Pa.  162;  Nernst  Lamp  Co.  v.  Hill,  243 
Pa.  448. 

While,  of  course,  Macan  as  an  individual  is  not  the 
same  person,  in  contemplation  of  law,  as  his  corporation, 
he  is  without  the  shadow  of  doubt  the  active  party  in 
both  suits.  He  ought  not  to  be  permitted  under  a  mere 
subterfuge  to  litigate  the  same  question  a  second  time: 
Northern  Securities  Case,  193  U.  S.  200 ;  Taylor  v.  Cor- 
nelius, 60  Pa.  187;  Peterson  v.  Lothrop,  34  Pa.  223. 

The  measure  of  the  plaintiff's  damages,  if  he  is  entitled 
to  recover  at  all,  is  the  "value  of  the  contract  at  the  time 
of  its  breach":  Howard  v.  Stillwell  &  B.  Mfg.  Co.,  139 
U.  S.  199;  Hunt  v.  Gilmore,  59  Pa.  450. 

Aaron  Goldsmith,  with  him  Kirkpatrick  &  Maxwell. — 
The  following  cases  have  direct  bearing  upon  the  doc- 
trine of  res  adjudicata  to  the  facts  of  this  case :  Carmony 
v.  Hoober,  5  Pa.  305;  Weigley  v.  Coffman,  144  Pa.  489; 
Grubtfs  App.,  62  Pa.  252;  Hartman  v.  Pittsburgh  In- 
clined Plane  Co.,  23  Pa.  Superior  Ct.  360;  Walker  v. 
City  of  Phila.,  195  Pa.  168 ;  Funk  v.  Young,  254  Pa.  548 ; 
Rhawn  v.  Edge  Hill  Furnace  Co.,  201  Pa.  637;  Monon- 
gahela  Bridge  Co.  v.  Pittsburgh  &  Birmingham  Traction 
Company,  196  Pa.  25;  Bidwell  v.  Pittsburgh,  etc.,  By. 


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MACAN  v.  SCANDINAVIA  BELTING  CO.,  Appel.  389 
1919.]  Arguments — Opinion  of  the  Court. 

Co.,  114  Pa.  535;  Goetz's  Est.,  236  Pa.  630;  Becker  v. 
Phila.,  217  Pa.  344;  Hess  v.  Vinton  Colliery  Co.,  255  Pa. 
79. 

The  instruction  as  to  the  damages  was  proper :  Com- 
mercial Credit  Co.  t.  Girard  Natl.  Bank,  246  Pa.  88; 
Press  Pub.  Co.  v.  Reading  News  Agency,  44  Pa.  Superior 
Ct.  428;  Pittsburgh  Gauge  Co.  t.  Ashton  Valve  Co.,  184 
Pa.  36;  Wilson  v.  Wernwag,  217  Pa.  82;  Singer  Mfg. 
Co.  t.  Christian,  211  Pa.  534;  Clyde  Coal  Co.  t.  Lake 
Erie,  etc.,  R.  R.  Co.,  226  Pa.  391. 

Opinion  by  Mb.  Justice  Fbazbb,  April  21, 1919 : 
A  judgment  was  entered  on  a  verdict  for  plaintiff  in  a 
suit  to  recover  damages  for  breach  of  an  exclusive  sales- 
agency  contract,  and  defendant*  appeals.  The  defenses 
were  (1)  the  contract  was  rightfully  terminated  because 
plaintiff  failed  to  perform  his  part;  (2)  plaintiff  trans- 
ferred, or  assigned,  the  contract  to  a  corporation  known 
as  the  Macan  Jr.  Company,  of  which  plaintiff  was  presi- 
dent and  a  stockholder,  and  if  a  right  to  damages  accrued 
they  belonged  to  the  company  and  not  to  plaintiff;  and 
(3)  the  question  involving  the  merits  of  the  claim  were 
determined  in  favor  of  the  present  defendant  in  a  former 
proceeding  between  defendant  and  the  Macan  Jr.  Com- 
pany, a  corporation  (258  Pa.  266). 

The  contract  in  question  was  entered  into  in  1912  be- 
tween plaintiff  individually  and  the  Scandinavia  Belting 
Company,  whereby  the  former  was  given  the  exclusive 
right  to  sell  belting  for  the  latter  in  certain  designated 
territory,  there  being  a  provision  that  the  agreement 
should  continue  in  force  "while  the  agent,  does  an  annual 
total  sale  of  |40,000."  The  contract  was  turned  over  to 
the  Macan  Jr.  Company,  a  corporation  formed  by  plain- 
tiff with  others,  and  business  transacted  thereunder  until 
May  1, 1914,  at  which  time  defendant  rescinded  the  con- 
tract, alleging  as  reason  for  such  action  failure  of  the 
agent  to  sell  the  required  amount  of  belting  and  that  he 
had  dealt  in  other  brands  of  textile  belting,  contrary  to 


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390  MACAN  v.  SCANDINAVIA  BELTING  CO.,  AppeL 

Opinion  of  the  Court  [264  Pa. 

the  terms  of  the  agreement.  At  that  time  a  balance  was 
due  the  Scandinavia  Company  on  a  book  account  for  belt- 
ing purchased,  and  suit  was  instituted  against  the  Macau 
Jr.  Company  to  collect  the  unpaid  amount,  to  which  a 
counterclaim  was  interposed  for  damages,  based  on  al- 
leged wrongful  rescission  of  the  contract.  The  answer  of 
the  Scandinavia  Company  was  that  George  C.  Macan,  Jr., 
individually,  was  the  owner  of  the  contract  and  not  the 
Macan  Jr.  Company,  consequently  there  could  be  no  set- 
off by  the  company  for  damages  for  breach  of  its  terms. 
The  trial  judge  charged  the  jury  they  must  be  satisfied 
the  Macan  Jr.  Company  was  the  assignee  and  owner  of 
the  contract,  otherwise  they  need  not  consider  the  case 
further,  so  far  as  the  set-off  was  concerned,  and  if  they 
found  the  agreement  had  not  been  assigned  to  the  cor- 
poration a  verdict  in  favor  of  plaintiff  should  be  re- 
turned, the  amount  of  its  claim  being  admitted.  The  jury 
found  for  plaintiff  with  the  statement  attached  to  the 
verdict  that  defendant's  claim  was  disallowed  for  the 
reason  they  did  not  believe  the  Macan  Jr.  Company  was 
the  owner  of  the  contract.  The  court  struck  out  this  part 
of  the  finding  and  entered  a  verdict  generally  for  plain- 
tiff. The  present  action  by  Macan  individually  for  dam- 
ages for  breach  of  the  contract  followed  the  termination 
of  that  case,  and  it  is  now  contended  the  former  proceed- 
ing is  conclusive  as  to  the  merits  of  the  controversy,  and 
further  that  plaintiff,  by  his  testimony  in  that  case  in 
which  he  stated  the  contract  had  been  assigned  to  the 
Macan  Jr.  Company,  was  estopped  from  taking  a  posi- 
tion in  this  proceeding  inconsistent  with  his  contention 
there. 

It  will  be  observed,  in  the  first  place,  the  parties  to 
this  action  are  not  the  same  as  in  the  former  proceeding. 
Macan  is  here  suing  in  his  individual  capacity,  while  the 
previous  action  was  against  the  Macan  Jr.  Company,  a 
corporation.  Although  Macan  was  a  large  stockholder 
in  the  company,  this  fact  did  not  make  him  a 
party  to  the  action  within  the  rule  requiring,  inter 


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MACAN  v.  SCANDINAVIA  BELTING  CO.,  Appel.  391 

1919.]  Opinion  of  the  Court. 

alia,  identity  of  parties  to  make  a  judgment  in  one  pro- 
ceeding res  judicata  in  another.  A  corporation  has  a 
separate  entity  or  existence,  irrespective  of  the  persons 
who  own  its  stock,  and  this  rule  is  not  altered  by  the  fact 
that  the  greater  portion  or  even  the  entire  issue  of  stock 
happens  to  be  held  by  one  person :  Monongahela  Bridge 
Co.  v.  Pittsburgh,  etc.,  Traction  Co.,  196  Pa.  25;  Bhawn 
v.  Edge  Hill  Furnace  Co.,  201  Pa.  637 ;  Kendall  v.  Klap- 
perthal  Co.,  202  Pa.  596 ;  Goetz's  Est.,  236  Pa.  630.  Pur- 
ther,  it  does  not  appear  that  the  merits  of  the  case,  that  is, 
whether  or  not  there  was  in  fact  a  wrongful  breach  of  the 
contract  by  defendant,  were  adjudicated  in  the  first  pro- 
ceeding. The  finding  of  the  jury  in  that  case,  in  view  of  the 
statement  attached  to  the  verdict  and  stricken  out  by 
the  court  below,  indicates  the  merits  of  the  case  were  not 
considered  by  them  in  that  proceeding,  but,  on  the  con- 
trary, their  conclusion  was  based  on  the  ground  that  in 
their  opinion  the  Macan  Jr.  Company  was  not  the  as- 
signee or  owner  of  the  contract;  to  establish  this  result, 
consideration  of  the  record  in  that  case  was  proper: 
Follansbee  v.  Walker,  74  Pa.  306;  Weigley  v.  Coffman, 
144  Pa.  489;  Pittsburgh  Constr.  Co.  v.  West  Side  Belt 
B.  B.,  227  Pa.  90. 

The  fact  that  plaintiff  testified  in  the  previous  pro- 
ceeding to  having  transferred  the  contract  to  the  Macan 
Jr.  Company  does  not  estop  him  from  taking  a  contrary 
position  in  the  present  action.  Apparently  he  intended 
to  make  such  assignment,  and  fully  believed  he  had  made 
a  valid  transfer  and  vested  in  the  Macan  Jr.  Company 
full  power  to  exercise  all  rights  and  privileges  under  the 
agreement.  The  verdict  of  the  jury  in  the  action  against 
the  corporation,  however,  established  he  was  mistaken 
in  this  and  that,  in  fact,  no  valid  transfer  had  been  made. 
His  acceptance  of  the  verdict  and  judgment  as  binding 
upon  him  and  subsequent  treatment  of  the  contract  as 
his  own  should  not  subject  him  to  criticism.  His  pres- 
ent attitude  is  consistent  with  the  law  as  laid  down  in 
that  case  where  his  testimony  was  in  harmony  with  his 


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392  MACAN  v.  SCANDINAVIA  BELTING  CO.,  AppeL 

Opinion  of  the  Court.  [264  Pa. 

action  in  making  what  he  believed  to  be  a  valid  assign- 
ment of  the  contract  to  the  corporation.  Defendant  in 
the  present  case,  rather  than  plaintiff,  might  justly  be  ac- 
cused of  taking  inconsistent  positions/  inasmuch  as  in 
the  other  case  the  defense  to  the  set-off  was  that  no 
transfer  of  the  contract  had  been  made  and  any  rights 
therein  must  be  enforced  by  the  present  plaintiff.  The 
court  and  jury  having  agreed  with  this  view,  defendant 
is  not  now  in  a  position  to  escape  liability  under  the  con- 
tract by  taking  a  position  contrary  not  only  to  its  pre- 
vious contention,  but  also  in  opposition  to  the  view  of  the 
court  in  sustaining  such  contention.  Furthermore,  the 
mere  fact  that  plaintiff  testified  as  a  witness  in  the  for- 
mer action  does  not  estop  him,  if  he  sees  fit,  from  now 
taking  a  position  contrary  to  his  statement  made  in  that 
case.  The  record  of  the  other  proceeding  is  not  received 
in  evidence  on  the  theory  that  it  conclusively  establishes 
the  facts  testified  to  by  the  witness,  so  as  to  constitute  an 
estoppel,  but  only  as  evidence  of  a  declaration  or  admis- 
sion by  the  witness  that  the  facts  were  as  stated,  and 
affects  merely  his  credibility :  Becker  v.  Phila.,  217  Pa. 
344;  Hess  v.  Vinton  Colliery  Co.,  255  Pa.  78. 

Defendant  finally  argues  that  the  damages  suffered  by 
plaintiff  are  speculative  and  uncertain  to  such  extent 
they  cannot  form  the  basis  of  a  finding  in  favor  of  plain- 
tiff. The  measure  of  damages  in  a  case  of  this  class  is  the 
value  of  the  contract  at  the  time  of  its  breach,  and  if  it 
reasonably  appears  that  profits  would  be  realized  if  the 
contract  were  carried  out,  and  that  the  loss  of  such  bene- 
fits necessarily  followed  the  breach,  their  amount  may 
constitute  the  true  measure  of  damages :  Wilson  v.  Wern- 
wag,  217  Pa.  82;  Press  Pub.  Co.  v.  Beading  News 
Agency,  44  Pa.  Superior  Ct.  428;  and  it  has  been  held 
that  where  an  agent  agreed  to  sell  his  principal's  goods 
within  a  certain  district  for  a  fixed  period  and  before  the 
expiration  of  the  time  the  principal  declared  the  contract 
at  an  end  without  sufficient  cause,  the  agent  may  show 
the  extent  and  volume  of  the  business  done  in  the  terri- 


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MACAN  v.  SCANDINAVIA  BELTING  CO.,  AppeL  398 

1919.]  Opinion  of  the  Court 

tory  under  both  his  agency  and  that  of  his  successor  as 
bearing  upon  the  question  of  damages:  Pittsburgh 
Gauge  Co.  t.  Ashton  Valve  Co.,  184  Pa.  36.  The  contract 
in  this  case  provides  it  should  remain  in  force  so  long 
as  the  agent's  sales  amount  to  the  sum  of  $40,000  an- 
nually. Whether  sales  were  made  to  this  extent  is  one 
of  the  issues  the  jury  found  in  favor  of  plaintiff  and  the 
only  question,  so  far  as  the  measure  of  damages  is  con- 
cerned, is  whether  there  was  evidence  upon  which  a  find- 
ing of  damages  could  reasonably  be  based.  Defendant 
admits  the  gross  profits  made  from  sales  in  the  territory 
included  in  the  agreement,  covered  by  the  years  1914  to 
1917  inclusive,  were  approximately  $5,000  a  year  on  a 
total  average  sale  of  $43,267  annually.  Out  of  this 
amount  the  evidence  shows  salesmen  were  paid  $3,000, 
and  for  traveling  expenses  $2,000,  which  latter  amount, 
plaintiff  claimed,  would  have  gone  to  him.  Plaintiff 
testified  that  in  1912  he  made  a  profit  of  $7,000  on  gross 
sales  of  $34,679.67  and  in  the  following  year  a  profit  of 
$6,663.03  and  that  the  cost  to  him  of  doing  business  was 
comparatively  small  as  the  belting  was  handled  in  con- 
nection with  the  sale  of  other  mill  supplies  to  the  same 
customers.  The  verdict  was  conservative  under  the  evi- 
dence, and  while,  in  the  nature  of  the  case,  the  amount 
of  profits  was  necessarily  uncertain,  the  law  does  not 
require  absolute  certainty  of  data  upon  which  they  are 
to  be  estimated.  All  that  is  required  is  such  reasonable 
certainty  that  damages  may  not  be  based  merely  upon 
speculation  and  conjecture :  Wilson  v.  Wernwag,  supra ; 
Hillsdale  Coal  &  Coke  Co.  v.  Penna.  B.  B.  Co.,  229  Pa. 
61,68. 
The  judgment  is  affirmed. 


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394  PINAN,  Appellant,  v.  E.  T.  MASON  CO. 

Syllabus— Arguments.  [264  Pa. 

Finan,  Appellant,  v.  E.  T.  Mason  Go. 

Negligence — Master  and  servant — Contributory  negligence. 

Where  a  workman  uses  in  his  work  a  ladder  properly  fitted  with 
brads  and  spikes  upon  one  side,  which  prevent  it  from  slipping, 
when  it  is  properly  placed  with  its  spiked  side  underneath,  and  he 
leaves  the  ladder  one  evening  properly  placed,  with  the  intention  of 
using  it  on  the  following  morning,  but  during  the  night  the  ladder 
is  used  by  some  other  person,  who  in  replacing  it,  turns  the  wrong 
side  of  the  ladder  to  the  wall,  and  the  workman  on  the  following 
morning  proceeds  to  use  it,  without  any  inspection  whatever,  and 
the  ladder  slips  from  under  him,  and  he  is  injured,  he  is  guilty  of 
contributory  negligence,  and  cannot  recover  damages  from  his  em- 
ployer for  his  injuries. 

Argued  March  17, 1919.  Appeal,  No.  12,  Jan.  T.,  1919, 
by  plaintiff,  from  judgment  of  C.  P.  Sullivan  Co.,  May 
T.,  1916,  No.  6,  for  defendant  n.  o.  v.,  in  case  of  Dennis 
Finan  v.  E.  T.  Mason  Co.  Before  Stewart,  Mosch* 
ziskbr,  Fbazbr,  Walling  and  Ebphart,  J  J.   Affirmed. 

Trespass  to  recover  damages  for  personal  injuries.  Be- 
fore Tbrry,  P.  J. 

Verdict  for  plaintiff  for  $2,000.  Subsequently  the 
court  entered  judgment  for  defendant  n.  o.  v.  Plaintiff 
appealed. 

Error  assigned  was  in  entering  judgment  for  defend- 
ant n.  o.  v. 

E.  J.  Mullen,  with  him  F.  B.  Quinn,  for  appellant. — 
Plaintiff  was  not  guilty  of  contributory  negligence  as 
matter  of  law :  Coolbroth  v.  Penna.  B.  B.  Co.,  209  Pa. 
433;  Smith  v.  Jackson  Twp.,  26  Pa.  Superior  Ct.  234; 
Ely  v.  Pittsburgh,  Cin.,  Chicago,  etc.,  B.  B.  Co.,  158  Pa. 
233;  McCully  v.  Clarke  &  Thaw,  40  Pa.  399;  Baker  v. 
Westmoreland,  etc.,  Gas  Company,  157  Pa.  593;  Ise- 
minger  v.  York  Haven,  W.  &  P.  Co.,  206  Pa.  591;  Kunte 


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PINAN,  Appellant,  v.  E.  T.  MASON  CO.  395 

1919.]  Arguments — Opinion  of  the  Court 

v.  New  York,  etc.,  R.  R.  Co.,  206  Pa.  162;  Neslie  v.  Sec- 
ond &  Third  St.  Pass.  Ry.  Co.,  113  Pa.  300;  Joyce  v. 
B.  &  O.  R.  R.  Co.,  230  Pa.  1;  Ralston  v.  Baldwin  Loco- 
motive Works,  240  Pa.  14. 

E.  B.  Farr,  with  him  J.  H.  Thayer,  for  appellee. — The 
plaintiff  was  guilty  of  contributory  negligence :  Lerner 
v.  Phila.,  221  Pa.  294;  Kleckner  v.  Cent.  R.  R.  of  N.  J., 
258  Pa.  461;  Wolf  v.  Phila.  Rapid  Transit  Co.,  252  Pa. 
448 ;  Lindguist  v.  Irwin,  260  Pa.  435. 

Opinion  by  Me.  Justice  Stewart,  April  21, 1919 : 
The  plaintiff  was  employed  by  the  defendant  company 
as  an  engineer  in  its  silk  mill.  His  hours  of  service  were 
during  the  day  time.  The  accident  which  occasioned  the 
injury  of  which  he  complains  occurred  while  he  was  en- 
gaged in  repairing  some  overhead  steam  pipes,  about 
thirteen  feet  above  the  floor  of  the  room  in  which  he  was 
working.  He  was  standing  upon  a  ladder  furnished  by 
the  employer.  While  so  engaged  the  ladder,  resting  on 
the  wooden  floor  of  the  room,  slipped  at  its  base  with  the 
result  that  plaintiff  fell  to  the  floor  and  in  his  fall  sus- 
tained his  injury.  The  negligence  charged  was  failure 
on  the  part  of  the  defendant  to  provide  plaintiff  with  a 
reasonably  safe  ladder,  in  that  the  ladder  furnished  was 
not  sufficiently  spiked  at  the  base  to  secure  it  in  place. 
It  was  developed  in  the  course  of  the  plaintiff's  testimony 
that  the  ladder  furnished  the  plaintiff  was  one  he  had 
often  used  and  was  perfectly  familiar  with;  that  he 
knew  that  it  was  equipped  with  the  proper  fastenings, 
brads  and  spikes,  only  upon  one  side;  that  these  safety 
appliances  projected  from  the  ends  of  the  standards  suf- 
ficiently to  admit  of  their  taking  hold  of  the  floor  and 
thus  prevent  the  ladder  from  slipping,  and  that  he  knew 
further  that  if  the  reverse  side  of  the  ladder,  the  one  not 
so  equipped,  was  used,  the  brads  and  spikes  would  not 
be  in  contact  with  the  floor  and  therefore  could  afford  no 
protection  against  slipping.     It  was  conceded  that  if 


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396         FINAN,  Appellant,  v.  E.  T.  MASON  CO. 

Opinion  of  the  Court  [264  Pa. 

properly  placed,  that  is  to  say,  with  the  spiked  side  of  the 
ladder  underneath,  so  that  the  spikes  would  reach  the 
floor,  no  danger  was  to  be  reasonably  apprehended.  This 
is  made  evident  by  the  fact  that  had  both  sides  been 
spiked  no  greater  security  could  have  resulted  except 
that  in  that  case  it  would  be  a  matter  of  indifference 
which  side  of  the  ladder  was  used.  The  plaintiff's  ac- 
cident happened  because  the  wrong  side  of  the  ladder  was 
placed  against  the  wall.  How  did  that  come  about? 
Plaintiff  knew  the  importance  of  having  the  ladder  prop- 
erly placed  so  as  to  get  the  benefit  of  the  security  of  the 
brads  and  spikes,  and  to  that  end  before  he  left  his  work 
the  evening  preceding  the  accident  knowing  he  would 
have  to  use  the  ladder  the  next  morning,  placed  it  in  po- 
sition with  the  spikes  against  the  floor.  Upon  his  return 
to  his  work  the  next  morning,  assuming  the  ladder  had  not 
been  interfered  with  by  any  one  during  the  night,  he  as- 
cended without  examining  to  see  which  side  rested  on  the 
floor,  the  spiked  or  unspiked,  or,  to  use  his  own  language, 
"without  stopping  to  inspect  it  to  see  whether  it  was 
properly  set."  The  undisputed  evidence  is  that  the  lad- 
der during  the  night  before  the  accident  had  been  re- 
moved by  a  fellow  employee  from  the  room  in  which 
plaintiff  had  left  it  properly  set,  into  another  room  where 
it  had  been  used  and  afterwards  returned  to  the  room 
from  which  it  had  been  taken.  Accepting  plaintiff's 
statement  as  correct,  that  when  he  left  work  the  evening 
before  the  accident  the  ladder  was  properly  set,  and  that 
it  was  not  properly  set  the  next  morning,  which  fact  oc- 
casioned his  fall,  a  necessary  conclusion  is  that  the  lad- 
der had  been  misplaced  by  some  one  in  the  interval. 

The  jury  returned  a  verdict  for  the  plaintiff.  On 
motion  by  the  defendant  the  court  entered  judgment  for 
defendant  n.  o.  v.  This  appeal  followed.  The  case  calls 
for  no  discussion.  An  employer  is  bound  to  protect  his 
employee  from  danger  reasonably  to  be  apprehended, 
but  not  against  all  possible  danger,  and  least  of  all 
against  danger  occasioned  by  the  employee's  own  negli- 


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FINAN,  Appellant,  v.  E.  T.  MASON  CO.         397 
1919.]  Opinion  of  the  Court, 

gence.  Not  only  did  the  evidence  come  short  of  showing 
negligence  chargeable  to  the  defendant,  bnt  on  the  ad- 
mitted facts  the  injury  complained  of  was  traceable  di- 
rectly to  the  plaintiff's  negligence  in  failing  to  examine 
the  position  of  the  ladder  before  ascending  it.  The 
slightest  inspection  of  it  would  have  disclosed  the  danger 
of  using  it  while  in  the  position  where  he  found  it. 

The  assignments  are  overruled  and  the  judgment  is 
affirmed. 


Keystone  Guard  v.  Beaman  et  aL 

Beneficial  societies — Fraudulent  sale  of  assets — Legal  fraud — Of- 
ficers and  directors — Conspiracy — Equity — Equity  jurisdiction. 

1.  On  a  bill  in  equity  against  the  officers  and  directors  of  an  in- 
corporated beneficial  society  to  recover  moneys  received  by  them 
from  the  assets  of  the  society,  where  it  is  charged  that  the  directors 
fraudulently  joined  in  a  conspiracy  to  transfer  the  assets  and  con- 
trol of  the  society  to  irresponsible  persons,  with  the  knowledge 
that  such  persons  intended  to  loot  the  society,  a  decree  against  one 
of  the  directors  for  the  amount  that  was  actually  received  by  him, 
will  be  sustained,  where  it  appears  that  although  the  court  below 
exonerated  him  from  the  charge  of  conspiracy  and  actual  fraud,  it 
found  him  guilty  of  a  legal  fraud  in  agreeing  to  stand  aside,  for  a 
consideration  payable  from  the  funds  of  the  society,  and  permit 
strangers  to  secure  possession  of  the  society  and  its  assets. 

2.  In  such  a  case,  equity  has  jurisdiction,  as  the  action  is  based 
upon  the  misfeasance  of  corporate  officers  in  unlawfully  and 
fraudulently  receiving  corporate  funds. 

Corporations — Officers — Gifts  or  bribes — Directors. 

3.  Gifts,  gratuities  or  bribes  given  to  a  director  to  influence  his 
official  action,  must  be  accounted  for  by  him  and  surrendered  to  the 
company. 

Argued  March  17,  1919.  Appeal,  No.  144,  Jan.  T., 
1919,  by  U.  M.  Fell,  from  decree  of  C.  P.  Bradford  Co., 
Dec.  T.,  1911,  No.  1,  on  bill  in  equity  in  case  of  The  Key- 
stone Guard,  a  corporation  in  the  hands  of  J.  W.  Ballard, 
Beceiver,  v.  J.  W.  Beaman,  XT.  M.  Fell  et  al.    Before 


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398         KEYSTONE  GUARD  v.  BEAMAN  et  aL 

Statement  of  Facts— Opinion  of  the  Court  [2d4  Pa. 
Stbwabx,  MoecHZiSKm,  Feazhb,  Walling  and  Kip- 
habt,  J  J.    Affirmed. 

Bill  in  equity  to  compel  officers  and  directors  of  a  cor- 
poration to  repay  funds  misappropriated. 

The  court  entered  a  decree  directing  U.  M.  Fell  to  pay 
plaintiff  the  sum  of  $5,000.    TJ.  M.  Fell  appealed. 

Error  assigned  was  the  decree  of  the  court. 

John  C.  Ingham,  for  appellant. — The  decree  made  by 
the  court  in  this  case,  as  to  the  appellant,  is  based  upon 
an  entirely  different  theory  than  that  set  out  in  the  bill 
and  from  that  upon  which  the  case  was  tried :  Luther  v. 
Luther,  216  Pa.  1;  Frey  v.  Stipp,  224  Pa.  390;  Kitten- 
house  v.  Newhard,  232  Pa.  433 ;  Spangler  Brewing  Co. 
y.  McHenry,  242  Pa.  522 ;  Thompson's  App.,  126  Pa.  367 ; 
D.  &  H.  Canal  Co.  v.  Penna.  Coal  Co.,  21  Pa.  131 ;  Sum- 
mers v.  Shryock,  46  Pa.  Superior  Ct.  231;  McFarland 
v.  Heverly,  46  Pa.  Superior  Ct.  435;  Miller  v.  Piatt,  33 
Pa.  Superior  Ct  547. 

The  proofs  having  established  that  the  appellant  was 
not  a  party  to  the  conspiracy  charged,  the  prayer  for 
general  relief  will  not  justify  a  decree  against  him  cm 
some  other  ground :  Passayunk  Building  Assn.'s  App., 
83  Pa.  441 ;  D.  &  H.  Canal  Co.  v.  Penna.  Coal  Co.,  21  Pa. 
131 ;  Com.  v.  Del.  &  Hudson  Canal  Co.,  43  Pa.  295 ;  Cum- 
berland Valley  R.  R.  Co.'s  App.,  62  Pa.  218;  Kelsey  v. 
Murphy,  26  Pa.  78. 

Charles  M.  Culver  and  James  Scarlet,  tor  appellees. 

Opinion  by  Mb.  Justice  Walling,  April  21, 1919 : 
This  bill  in  equity  is  by  the  receiver  of  a  defunct  bene- 
ficial corporation  against  its  officers  and  directors  for 
misfeasance  and  unlawful  appropriation  of  corporate 
funds.  In  1906  the  Keystone  Guard,  a  beneficial  society, 
was  chartered  as  a  Pennsylvania  corporation,  with  head- 


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KEYSTONE  GUARD  v.  BEAMAN  et  aL         399 

1919.}  Opinion  of  the  Court 

quarters  at  Athens  in  Bradford  County.  It  grew  rap- 
idly, established  subordinate  branches  in  many  states 
and  in  1910  had  about  nine  thousand  members,  divided 
into  three  classes,  all  of  whom  paid  dues  and  assess- 
ments; from  this  a  surplus  of  about  1274,000  had  ac- 
cumulated, which  was  invested  in  mortgages,  bonds,  etc. 
It  had  a  board  of  nine  directors,  including  the  president. 
The  directors  and  officers,  including  a  secretary  and 
treasurer,  were  chosen  for  terms  of  four  years  at  the 
general  biennial  conventions,  that  for  1910  being  held  at 
Denver  in  June.  Prior  to  which  convention  the  directors 
had  been  approached  by  one  J.  E.  Blackburn,  and  other 
nonresidents  acting  with  him,  for  the  purpose  of  secur- 
ing control  of  said  corporation  and  its  assets,  ostensibly 
to  merge  it  in  a  larger  corporation,  but  in  reality  to 
fraudulently  misappropriate  the  assets.  Some  of  the 
supreme  officers,  including  the  president  and  secretary, 
entered  into  a  conspiracy  with  Blackburn  by  which  for 
the  consideration  of  f  100,000  they  were  to  give  him  con- 
trol of  the  corporation  and  its  property.  This  was  to  be 
accomplished  by  five  of  the  old  directors  refusing  to  stand 
for  reelection  at  the  Denver  convention  and  by  electing 
in  their  places  an  equal  number  named  by  Blackburn, 
which  was  done. 

On  July  8,  1910,  Blackburn,  who  had  been  elected 
treasurer,  and  some  of  his  associates,  came  to  Athens, 
paid  |50,000  of  the  bribe  money  (the  balance  being  se- 
cured and  paid  later)  and  obtained  possession  of  the  cor- 
porate assets,  which  were  removed  from  this  State  and 
misappropriated.  By  the  terms  of  the  conspiracy  each  of 
the  old  directors  was  to  and  did  receive  $5,000,  and  the 
balance  of  the  $100,000  was  to  be  and  was  secretly  di- 
vided among  the  three  leading  conspirators,  to  wit:  the 
president,  secretary  and  medical  director.  All  of  the 
bribe  money  was  secured  by  and  paid  from  the  corporate 
assets  and  none  was  advanced  or  paid  by  Blackburn. 
The  appellant,  TJ.  M.  Fell,  was  a  director  and  auditor  of 
the  corporation,  but  resided  fifteen  miles  from  Athens 


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£0Q    KEYSTONE  GUARD  v.  BEAMAN  et  al 

Opinion  of  the  Court  [264  Pa. 

and  the  court  below  has  found  was  not  a  conspirator; 
however,  prior  to  the  Denver  convention  the  matter  of 
turning  over  the  corporation  was  discussed  with  him  by 
other  directors  and  he  understood  that  by  not  standing 
for  reelection  he  would  receive  $5,000,  but  not  from  the 
corporation.  He  complied  with  this  understanding,  re- 
mained away  from  Denver,  did  not  stand  for  reelection 
and  received  the  $5,000,  by  the  hand  of  another  director, 
shortly  after  the  8th  of  July.  While  Mr.  Fell  received 
a  small  compensation  for  his  services  as  director,  he  did 
not  intend  to  stand  for  reelection  and  there  was  no  actual 
consideration  for  the  $5,000.  The  court  below  finds  him 
innocent  of  conspiracy,  but  influenced  by  a  selfish  cupid- 
ity and,  by  incautiously  concurring  in  certain  steps  of 
others,  he  assisted  in  the  consummation  of  the  conspiracy, 
although  he  did  not  know  of  the  design  of  Blackburn. 

In  furtherance  of  the  scheme  the  constitution  of  The 
Keystone  Guard  was  amended  at  the  Denver  convention 
so  as  apparently  to  permit  a  reinsurance  of  the  members 
in  other  societies,  and,  later,  after  the  treasury  had  been 
rifled  and  the  valuable  securities  replaced  by  others  of 
little  or  no  value,  Blackburn  made  some  arrangement, 
not  authorized  by  law,  for  reinsuring  the  members  in  an 
Illinois  society  known  as  the  American  Patriots. 

In  1911  on  the  initiative  of  the  attorney  general  of  the 
Commonwealth,  the  court  ousted  the  Keystone  Guard  of 
its  corporate  franchises  and  appointed  plaintiff  its  re- 
ceiver. He  filed  this  bill  the  same  year  against  nineteen 
defendants,  including  the  old  and  new  directors  and 
others  associated  with  them,  charging  conspiracy,  fraud, 
misfeasance  in  office,  misappropriation  of  corporate 
funds,  etc.;  and,  inter  alia,  charging  Fell  with  the 
unlawful  receipt  of  the  $5,000  of  funds  fraudulently 
taken  from  the  corporation ;  praying,  inter  alia,  for  dis- 
covery and  an  accounting  and  that  the  defendants  <  nam- 
ing them,  including  Fell),  "be  decreed  to  account- jointly 
and  severally  to  your  orator  for  the  several  sums  of 
money  received  by  all  and  each  of  said  conspirators,  and 


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KEYSTONE  GUABD  v.  BEAMAN  et  aL         401 

1919.]  Opinion  of  the  Court 

that  a  decree  be  entered  to  pay  over  the  same  to  your 
orator  as  receiver  of  The  Keystone  Guard" ;  also  praying 
that  the  defendants  joining  in  the  conspiracy  be  decreed 
liable  in  solido  for  the  total  amount  of  money  fraudu- 
lently and  illegally  obtained  from  The  Keystone  Guard 
by  reason  of  the  conspiracy;  also  a  prayer  for  general 
relief.  Some  of  the  defendants  were  not  brought  in, 
others  permitted  judgment  to  be  taken  against  them  pro 
conf esso,  while  some,  including  appellant,  answered,  and 
as  to  them  the  case  went  to  trial  on  bill,  answer,  repli- 
cation and  testimony ;  from  which  the  chancellor  found 
the  facts  and  stated  his  legal  conclusions.  The  defend- 
ants joining  in  the  conspiracy  were  held  liable  in  solido 
for  the  entire  loss,  while  Fell  and  another,  exonerated 
from  the  charge  of  conspiracy,  were  held  liable  merely  to 
refund  the  amount  of  corporate  money  unlawfully  re- 
ceived by  them  respectively.  These  findings  were  ap- 
proved by  the  court  below  and  the  final  decree  as  to  Pell 
was  that  he  pay  back  |5,000  and  costs;  from  which  he 
brought  this  appeal. 

It  is  earnestly  urged  here,  as  it  was  in  the  lower  court, 
that  appellant  having  been  relieved  of  the  charge  of  con- 
spiracy cannot  under  the  pleadings  be  decreed  to  refund 
the  $5,000 ;  and  our  attention  is  called  to  the  well-settled 
rule  that,  "The  relief  afforded  by  a  decree  in  equity  must 
conform  to  the  case  as  made  out  by  the  pleadings  as  well 
as  to  the  proofs"  (Spangler  Brewing  Company  v.  Mc- 
Henry,  242  Pa.  522;  Frey  v.  Stipp,  224  Pa.  390;  Luther 
v.  Luther,  216  Pa.  1) ;  but  the  same  authorities  hold  that 
it  is  the  essential  facts  which  must  be  averred  and  proved. 
Plaintiff  will  not  be  denied  relief  for  failure  to  prove  the 
nonessential  averments  of  the  bill ;  it  is  sufficient  if  one 
valid  charge  be  established:  The  Cumberland  Valley 
B.  R.  Company's  App.,  62  Pa.  218.  Plaintiff  is  required 
at  law  or  in  equity  to  prove  only  such  of  his  allegations 
as  are  necessary  to  sustain  the  claim.  The  bill  charges 
fraud  as  well  as  conspiracy  and  while  the  court  below  re- 
lieves appellant  from  the  charge  of  actual  fraud,  yet 
Vol.  cclxiv— 26 

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402    KEYSTONE  GUARD  v.  BEAMAN  et  al. 

Opinion  of  the  Court  [264  Pa. 

under  the  facts  found  the  transaction  amounts  to  a  legal 
fraud ;  for  where  a  director  of  a  beneficial  society  accepts 
$5,000,  to  stand  aside  so  that  strangers  may  get  posses- 
sion of  the  society  and  its  assets,  it  is  a  fraud  in  law  re- 
gardless of  guilty  knowledge  on  his  part;  and  if  the  |5,- 
000  belongs  to  the  society  equity  may  decree  its  restor- 
ation. A  charge  of  actual  fraud  is  sustained  by  proof  of 
a  constructive  fraud:  Ricketts'  App.  (Pa.  Supreme 
Court),  21  W.  N.  C.  229,  235.  Appellant  has  |5,000  for 
which  he  paid  nothing  and  which  had  been  practically 
stolen  from  the  society  and  this  he  is  legally  bound  to  re- 
turn, and  he  would  be  liable  in  assumpsit  for  money  had 
and  received.  But  equity  has  jurisdiction  under  the 
facts  found,  especially  as  the  action  is  based  on  the  mis- 
feasance of  corporate  officers:  Thompson  on  Corpora- 
tions, sec.  4027.  Neither  the  question  of  an  adequate 
legal  remedy,  nor  of  multifariousness,  nor  of  misjoinder, 
is  raised  in  the  record,  the  case  being  rested  on  the 
ground  that  the  facts  found  do  not  sustain  the  allegations 
of  the  bill.  If  the  only  charge  was  conspiracy,  that  con- 
tention should  prevail;  but  while  that  is  the  principal 
complaint  the  bill  goes  further  and  charges  fraud  and 
misconduct  in  office  and  especially  charges  appellant 
with  the  unlawful  receipt  of  the  |5,000  of  corporate 
funds;  these  allegations  are  sustained  by  findings  based 
on  ample  evidence  and  justify  the  decree  for  restoration 
of  the  money  as  prayed  for.  A  case  proper  for  equitable 
relief  is  thus  shown  aside  from  the  question  of  conspir- 
acy. Of  course  the  charge  of  conspiracy  was  found  as  to 
other  defendants,  and  that  thereby  the  money  came  to 
appellant ;  but  he  can  no  more  retain  it,  because  not  a 
particeps  criminis,  than  he  could  retain  a  stolen  horse 
because  not  a  party  to  the  theft.  The  defendants  are  all 
designated  in  the  bill  as  "conspirators"  and  wherever 
repeated  therein  it  is  manifestly  intended  to  embrace 
each  defendant,  and  although  subsequently  the  court  be- 
low exonerated  appellant  from  that  charge,  yet  the  other 
allegations  and  findings  are  ample  to  sustain  the  decree 


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KEYSTONE  GUARD  v.  BEAMAN  et  al.  403 

1919.]  Opinion  of  the  Court. 

complained  of.  That  being  so  it  is  not  material,  as  above 
stated,  that  the  allegation  of  conspiracy  was  not  sus- 
tained against  this  defendant. 

Aside  from  the  question  of  pleading,  there  is  no  doubt 
of  appellant's  liability  to  return  the  money.  "Gifts, 
gratuities,  or  bribes  given  to  a  director  to  influence  his 
official  action  must  be  accounted  for  by  him  and  sur- 
rendered to  the  company":  10  Cyc.  795;  and  a  case 
quite  like  the  present  is  McClure  v.  Law,  161  N.  Y.  78, 
where  the  director  was  held  liable  to  the  corporation  for 
the  money  so  received.  See  also  Gilbert  v.  Pinch,  173  N. 
Y.  455,  and  Thompson  on  Corporations,  sec.  4027. 

The  decree  is  affirmed  and  appeal  dismissed  at  the  cost 
of  appellant. 


Krehl  et  al.  v.  Mosser,  Appellant. 

Bale — Custom — Evidence  —  Modification  of  contract  —  Implied 
warranty. 

In  an  aotion  to  recover  the  contract  price  of  1,000  hides,  where 
it  appears  that  the  contract  specified  delivery  of  two  grades  of 
hides  at  different  prices,  but  did  not  specify  the  proportions  of  each, 
it  is  improper  to  offer  to  prove  by  a  witness  a  trade  custom,  re- 
quiring in  case  of  a  sale  of  a  lot  of  hides  of  different  grades  a  fixed 
proportion  as  between  the  several  grades.  Such  an  offer  involved 
an  introduction  into  the  written  agreement  of  a  custom  of  trade  at 
variance  with  the  express  terms  of  the  contract,  and  an  implied 
warranty  which  did  not  arise  from  the  contract  itself. 

If  such  an  offer  was  not  so  directed  in  form  as  to  disclose  a 
trade  custom,  it  was  properly  rejected,  where  the  record  failed  to 
disclose  any  evidence  tending  to  establish  such  custom. 

Argued  March  18,  1919.  Appeal,  No.  273,  Jan.  T., 
1919,  by  defendant,  from  judgment  of  C.  P.  Lehigh  Co., 
April  T.,  1917,  No.  31,  on  verdict  for  plaintiffs  in  case  of 
J.  C.  Krehl  and  C.  E.  Force,  copartners,  trading  as 
Krehl  &  Force,  v.  George  E.  Mosser.  Before  Stewart, 
Moschziskbr,  Frazbr,  Walling  and  Kbphart,  J  J.  Af- 
firmed. 


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401  KBEHL  et  al.  v.  MOSSER,  Appellant. 

Statement  of  Facts — Opinion  of  the  Court      [264  Pa. 

Assumpsit  for  the  contract  price  of  1,000  hides.  Be- 
fore Henry,  P.  J.,  specially  presiding. 

Verdict  and  judgment  for  plaintiffs  for  $5,479.54.  De- 
fendant appealed. 

Errors  assigned  were  rulings  on  evidence  referred  to  in 
the  opinion  of  the  Supreme  Court. 

Fred  B.  Oernerd,  with  him  Arthur  Q.  Detoalt  and 
Horace  Heydt,  for  appellant,  cited:  A.  E.  David  v. 
Koenig  &  Gaertner,  165  Pa.  347;  Bardsley  v.  Gill,  218 
Pa.  56. 

Rubin  J.  Butz,  of  Butz  d  Rupp,  for  appellees,  cited : 
Coxe  v.  Heisley,  19  Pa.  243;  Wetherill  v.  Neilson,  20  Pa. 
448;  Hartje  v.  Collins,  46  Pa.  268;  Harris  v.  Sharpies, 
202  Pa.  243;  Barnard  v.  Kellog,  77  U.  S.  383. 

Opinion  by  Me.  Justice  Stewart,  April  21, 1919 : 
Plaintiffs'  action  was  for  the  recovery  of  the  contract 
price  for  a  lot  of  untanned  hides.  The  contract  of  sale 
is  to  be  gathered  from  the  correspondence  between  the 
parties.  The  plaintiffs,  dealers  in  such  commodity  and 
doing  business  in  Girard,  in  the  State  of  Ohio,  wrote  to 
the  defendant,  residing  at  Allentown  in  this  State,  under 
date  of  December  1, 1916,  as  follows :  "We  can  offer  you, 
subject  to  sale,  for  quick  delivery  800  45-up  Buff  hides  at 
27c  selected ;  a  like  amount  of  Extreme  hides  at  32c  se- 
lected ;  1000  fresh  butcher  calf  and  kip  skins  at  50c  for 
No.  1  calf,  43c  for  No.  1  kip,  usual  deduction  for  2's, 
with  light  calf  at  $  3.50,  deacons  at  $3.30.  Can  also  offer 
approximately  400  large  un trimmed  horse  hides  at  $  12.00 
each  for  No.  l's,  usual  deduction  for  2's,  glues  and 
ponies,  and  hides  without  tails,  25c  off.  If  interested 
shall  be  pleased  to  hear  from  you."  Under  date  of  4th 
December,  1916,  defendant  in  reply  wired  the  plaintiffs 
as  follows :  "Accept  calf  skins  Price  your  letter,  name 
lowest  on  Horse  Hides."  To  this  plaintiffs  the  same  day 
replied  by  wire,  "Message  received.    Have  booked  for  you 


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KREHL  et  aL  v.  MOSSES,  Appellant.  405 

1919.]  Opinion  of  the  Court. 

Calf  and  Kip.  Eleven  Fifty  on  Horse  is  lowest.  Sub- 
ject sale."  Other  correspondence  followed  but  from  what 
we  have  given  above  the  entire  contract  is  to  be  derived 
so  far  as  concerns  the  present  inquiry.  Several  defenses 
were  set  up  to  the  action  in  the  court  below,  a  single 
one,  however,  is  made  the  basis  of  an  exception,  and 
therefore  this  alone  calls  for  consideration  in  the  present 
controversy.  What  we  have  above  given  of  the  corre- 
spondence between  the  parties  is  quite  sufficient  for  a 
full  understanding  of  the  one  question  we  have  to  decide. 
On  the  trial  of  the  case  a  verdict  was  rendered  for  plain- 
tiffs in  the  sum  of  $5,079.54;  a  motion  for  a  new  trial  was 
refused  and  judgment  was  accordingly  entered  on  the 
verdict.    The  appeal  is  from  the  judgment  so  entered. 

The  only  defense  attempted  in  the  court  below  which 
is  here  brought  to  our  attention  by  the  assignments 
of  error  was  a  claim  that  the  1,000  skins  shipped  by 
plaintiffs  to  the  defendant  did  not  contain  the  usual  pro- 
portions of  l's  and  2's,  according  to  the  custom  of  the 
trade,  and  that,  therefore,  defendant  was  not  obliged  to 
accept  the  skins.  In  thus  stating  the  question  we  have 
followed  the  language  used  by  appellant  in  the  very  be- 
ginning of  his  submitted  argument. '  In  the  same  argu- 
ment, and  in  the  same  connection,  there  is  to  be  found 
this  admission,  "There  is  no  exception  in  the  record 
which  raises  the  second  question  (assignment  No.  2)  and 
the  third  question  (assignment  No.  3)  was  purely  a  ques- 
tion of  fact  for  the  jury,  so  that  the  discussion  on  this 
appeal  must  be  limited  to  the  first  question  (assignment 
No.  1)."  The  questions  presented  in  assignment  No.  1, 
— all  that  is  left  for  consideration — is  whether  the  court 
erred  in  sustaining  an  objection  to  the  competency  of  the 
witness  Bodsky,  called  by  plaintiffs  to  make  answer  to 
the  following  questions  put  him :  "Q.  From  your  know- 
ledge of  skins,  the  grades  and  your  experience,  what 
would  you  call  a  lot  of  skins,  a  thousand  skins  in  which 
there  appears  570  No.  2%  407  No.  l's,  4  Orassers,  4  Dea- 
cons, 7  No.  3's  and  4  other  Deacons  8  in  all?  What  would 


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406  KREHL  et  al.  v.  MOSSEE,  Appellant. 

Opinion  of  the  Court  [264  Pa. 

you  say  as  to  whether  a  lot  of  1000  such  skins  as  to 
whether  they  were  a  lot  of  fresh  butcher  skins,  country 
skins,  or  what  kind  of  skins  would  you  call  them?"  This 
was  objected  to  as  incompetent  and  irrelevant,  "because 
the  contract  in  evidence  specified  the  terms  and  delivery 
of  both  number  l's  and  2's,  and  provides  a  different  price 
in  each  grade  of  skins."  However  pertinent  the  evidence 
offered  may  have  been  in  some  of  the  other  defenses  at- 
tempted all  of  which  were  decided  adversely  to  the  de- 
fendant in  the  court  below,  it  is  apparent  that  it  could 
have  no  relevancy  to  the  one  purpose  for  which  appel- 
lant now  insists  it  was  offered,  namely,  to  show  a  trade 
custom  requiring  in  case  of  a  sale  of  a  lot  of  hides  of  dif- 
ferent grades  a  fixed  proportion  as  between  the  several 
grades.  This  being  the  real  and  only  contention  before 
us,  the  right  to  introduce  in  the  case  such  trade  custom, — 
the  other  assignments  of  error  having  been  withdrawn — 
would  have  been  wholly  ineffective  to  raise  the  question. 
Appellant's  contention,  if  sustained,  would  have  intro- 
duced into  this  written  contract  a  custom  of  trade  at 
variance  with  the  express  terms  of  the  contract,  and  an 
implied  warranty  which  does  not  arise  from  the  contract 
itself.  But,  without  this,  the  question  put  was  not  so 
directed  as  to  disclose  a  trade  custom,  if  any  there  was. 
If  plaintiffs'  reliance  was  upon  a  trade  custom,  it  was 
first  of  all  essential  that  he  offer  proof  to  establish  such 
custom.  The  record  will  be  searched  in  vain  for  any 
evidence,  tending  even  in  a  remote  degree  to  establish 
any  such  custom.  It  is  unnecessary  to  say  more.  The 
offer  was  properly  rejected  and  the  judgment  is  affirmed. 


Landell,  Appellant,  v.  Lybrand  et  al. 

V 

Negligence^— Certified  public  accountants — Absence  of  contract 
relation. 

Trespass  for  negligence  will  not  lie  against  a  firm  of  certified 
public  accountants  by  a  person  who  has  no  contractual  relation  with 

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LANDBLL,  Appellant,  v.  LYBRAND  et  al.         407 

1919.]  Syllabus— Opinion  of  the  Court, 

them,  for  a  loss  caused  by  such  person's  reliance  upon  a  report  of 
the  defendants  alleged  to  have  been  false  and  untrue,  in  purchasing 
the  stock  of  a  corporation,  upon  which  thsy  reported,  -where  it  ap- 
pears that  the  report  was  shown  to  him  by  some  one  who  suggested 
that  he  purchase  the  stock,  and  there  is  nothing  to  show  that  the 
accountants  made  the  report  with  intent  to  deceive  him. 

Argued  March  24, 1919.  Appeal,  No.  50,  Jan.  T.,  1919, 
by  plaintiff,  from  order  of  C.  P.  No.  5,  Philadelphia  Co., 
Sept.  T.,  1916,  No.  1719,  discharging  rule  for  judgment 
for  want  of  a  sufficient  affidavit  of  defense  and  entering 
judgment  for  defendant  on  the  whole  record  in  case  of 
Edwin  A.  Landell,  Jr.,  v.  William  M.  Lybrand,  T.  Ed- 
wards Ross,  Adam  A.  Boss,  Robert  H.  Montgomery  and 
Joseph  M.  Pugh,  Copartners,  trading  as  Lybrand,  Ross 
Brothers  &  Montgomery.  Before  Brown,  C.  J.,  Mosoh- 
ziskbb,  Frazbr,  Walling  and  Kbphabt,  J  J.   Affirmed. 

Trespass  for  loss  alleged  to  have  been  caused  by  de- 
fendant's negligence. 

Rule  for  judgment  for  want  of  a  sufficient  affidavit  of 
defense  and  motion  for  judgment  for  defendants  on  the 
record. 

The  court  discharged  the  rule  and  entered  judgment 
for  defendant.    Plaintiff  appealed. 

Error  assigned  was  in  entering  judgment  for  defend- 
ants. 

William  T.  Cooper,  with  him  John  W.  Jennings,  for 
appellant. 

Ira  Jewell  Williams,  of  Brown  &  Williams,  with  him 
Tale  L.  Schekter,  for  appellees. 

Per  Curiam,  April  21, 1919: 

Appellees,  defendants  below,  are  certified  public  ac- 
countants, and,  as  such,  audited  the  books  and  accounts 
of  the  Employer's  Indemnity  Company  for  the  year  1911. 
The  appellant,  plaintiff  below,  averred  in  his  statement 


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408         LANDELL,  Appellant,  v.  LYBRAND  et  aL 

Opinion  of  the  Court  [264  Pa. 

of  claim  that  he  had  been  induced  to  buy  eleven  shares  of 
the  capital  stock  of  that  company,  at  the  price  of  |200 
per  share,  on  the  strength  of  the  report  made  by  the  ap- 
pellees as  to  its  assets  and  liabilities  at  the  close  of  the 
year  1911,  the  report  having  been  shown  to  him  by  some 
one  who  suggested  that  he  purchase  the  stock.  A  further 
averment  was  that  the  report  was  false  and  untrue,  that 
the  stock  purchased  by  him  on  the  strength  of  it  is  value- 
less, and  for  the  loss  he  sustained  he  averred  the  defend- 
ants were  liable.  To  enforce  this  liability  an  action  in 
trespass  was  brought  against  them.  In  their  affidavit  of 
defense  they  averred  that  the  statement  of  claim  dis- 
closed no  cause  of  action,  and  asked  that  this  be  disposed 
of  by  the  court  below  as  a  matter  of  law,  under  the  pro- 
visions of  Section  20  of  the  Practice  Act  of  May  14, 1915, 
P.  L.  483.  It  was  so  disposed  of  by  the  court  below  in 
entering  judgment  for  the  defendants. 

There  were  no  contractual  relations  between  the  plain- 
tiff and  defendants,  and,  if  there  is  any  liability  from 
them  to  him,  it  must  arise  out  of  some  breach  of  duty, 
for  there  is  no  averment  that  they  made  the  report  with 
intent  to  deceive  him.  The  averment  in  the  statement 
of  claim  is  that  the  defendants  were  careless  and  negli- 
gent in  making  their  report;  but  the  plaintiff  was  a 
stranger  to  them  and  to  it,  and,  as  no  duty  rested  upon 
them  to  him,  they  cannot  be  guilty  of  any  negligence  of 
which  he  can  complain :  Schiffer  v.  Sauer  Company  et 
aL,  238  Pa.  550.  This  was  the  correct  view  of  the  court 
below,  and  the  judgment  is  accordingly  affirmed. 


Commonwealth  v.  Thome,  Neale  &  Co.,  Inc., 
Appellant. 

Taxation  —  Mercantile  tax  —  Corporations  —  Vendors  of  coal  — 
Principal  and  agent— Act  of  May  2,  1899,  P.  L.  181— Words  and 
phrases — Del  credere  agent 

1.  A  vendor  within  the  meaning  of  the  Mercantile  Tax  Act  of 
Kay  2, 1899,  P.  L.  184*  is  one  who  buys  to  sell. 


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COM.  v.  THOBNE,  NEALE  &  CO.,  Appellant.      409 

1919.]  Syllabus— Statement  of  Facts. 

2.  A  corporation  with  power  to  buy  and  sell  coal  is  liable  for  the 
mercantile  tax  on  the  whole  volume  of  its  gross  sales,  as  provided 
by  the  Act  of  May  2,  1899,  P.  L.  184,  where  it  appears  that  it 
dealt  directly  with  its  customers;  that  it  transmitted  orders  re- 
ceived from  them  to  the  operator;  that  the  shipments  were  made 
by  the  operator  according  to  the  company's  directions;  that  the 
coal  was  charged  and  billed  by  the  operator  to  the  company,  and 
by  the  company  to  its  customers;  that  it  collected  the  money  from 
its  customers,  and  if  it  was  not  paid  it  sued  in  its  own  name,  and 
whether  the  money  was  collected  from  the  customer  or  charged  off 
as  a  loss,  the  company  made  up  to  the  operator  the  price  of  the 
coal  as  its  own  debt;  that  the  company  never  had  possession  of  the 
coal  for  the  account  of  the  operator,  but  that  the  deliveries  of 
specific  quantities  were  made  directly  to  customers  upon  its  direc- 
tion; that  in  the  event  of  failure  to  accept  by  its  customers,  it  did 
not  return  the  coal  to  the  operator  nor  retake  it  for  the  operator, 
but  resold  it  for  its  own  account;  that  the  company  was  limited 
to  a  profit  of  from  ten  to  fifteen  cents  a  ton  according  to  the  size  of 
the  coal;  and  that  the  company  was  responsible  for  all  bills,  and  in 
the  event  of  insolvency  or  refusal  to  pay,  it  was  bound  to  pay  the 
bill. 

8.  In  such  a  case  the  company  was  not  acting  merely  as  a  del 
credere  agent  working  under  a  fixed  commission,  but  was  a  princi- 
pal, buying  and  selling  coal  on  its  own  account,  and  therefore  sub- 
ject to  the  tax  provided  by  the  Act  of  May  2, 1899,  P.  L.  184. 

4.  The  fixed  commission  or  profits  of  ten  or  fifteen  cents  per  ton 
are  entirely  consistent  with  the  contract  of  sale  wherein  profits  are 
limited.  The  company  dealt  as  a  purchaser  of  coal  without  assum- 
ing the  burden  of  advancing  or  declining  market,  and  dealt  in  a 
safe  margin  of  profit  where  the  minimum  loss  was  the  possible  in- 
solvency of  a  purchaser  which  could  generally  be  provided  against. 

Argued  March  24,'  1919.  Appeal,  No.  279,  Jan.  T., 
1919,  by  defendant,  from  judgment  of  Superior  Court, 
Oct.  T.,  1918,  No.  222,  affirming  judgment  of  C.  P.  No. 
2,  Philadelphia  Co.,  March  T.,  1916,  No.  4832,  for  the 
Commonwealth  on  appeal  from  assessment  for  mercan- 
tile tax  in  case  of  Commonwealth  v.  Thome,  Neale  & 
Company,  Inc.  Before  Brown,  C.  J.,  Stewart,  Mosoh- 
ziskbr,  Frazbr  and  Walling,  J  J.   Affirmed. 

Appeal  from  judgment  of  Superior  Court. 

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J      V* 


410      COM.  v.  THORNB,  NBALE  &  CO.,  Appellant. 

Opinion  of  Superior  Court.  [264  Pa. 

Kephabt,  J.,  filed  the  opinion  of  the  Superior  Court 
which  was  as  follows : 

The  question  presented  by  this  appeal  relates  solely  to 
whether  the  appellant  conducted  its  business  during  the 
year  1916  so  as  to  make  it  liable  to  the  State  as  a  wholesale 
vendor  for  a  mercantile  tax  "for  the  whole  volume  of  busi- 
ness"  or  its  gross  sales.  Prior  to  1916  the  appellant 
regularly  filed  its  report  with  the  auditor  general  ac- 
counting for  all  its  gross  business,  and  no  distinction  was 
then  attempted  in  any  of  its  activities.  For  the  year 
1916  it  was  assessed  a  tax  by  the  mercantile  appraisers  of 
Philadelphia  on  an  appraised  gross  business.  This  ac- 
tion was  necessary  because  the  company  claimed  the 
bulk  of  its  business  was  not  liable  to  a  tax.  The  action 
of  the  appraisers  was  approved  by  Common  Pleas  Court 
No.  2  in  an  opinion  by  Judge  Wbssbl,  hence  this  appeal. 

The  appellant  is  a  corporation  with  power  to  buy  and 
sell  coal.  It  seeks  to  evade  liability  for  nine-tenths  of  the 
tax  assessed  for  the  reason  that  it  was  levied  on  a  busi- 
ness wherein  they  acted  as  agent  for  other  coal  com- 
panies. Without  discussing  any  question  as  to  the  good 
faith  to  the  Commonwealth  by  the  appellant's  officers, 
who  were  officers  and  directors  in  these  "other  com- 
panies^ with  whom  they  had  their  several  contracts,  or 
the  right  of  the  appellant  to  claim  an  exemption  because 
it  was  acting  as  an  agent,  while  their  charter  gave  them 
the  right  to  buy  and  sell,  we  will  confine  our  inquiry  to 
whether  the  court  below  was  right  in  holding  that  they 
were  not  agents,  but  vendors  within  the  meaning  of  the 
act.  The  assessment  was  made  under  the  Act  of  May  2, 
1899,  P.  L.  184,  and  a  dealer  within  the  meaning  of  this 
word  as  used  in  this  act  is  one  who  buys  to  sell :  Norris 
Bros.  v.  Com.,  27  Pa.  494;  Com.  v.  Consolidated,  etc., 
Beef  Co.,  245  Pa.  605 ;  Com.  v.  Gormly,  173  Pa.  586.  The 
facts  as  clearly  and  correctly  summarized  by  the  court 
below  are  as  follows :  The  appellant  dealt  directly  with 
and  secured  its  orders  from  its  customers.  It  transmits 
those  orders  to  the  operator  and  the  shipments  are  made 


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COM,  v.  THOENB,  NBALE  &  CO.,  Appellant.      411 
1919.]  Opinion  of  Superior  Court. 

according  to  the  appellant's  directions.  The  coal  is 
charged  and  billed  by  the  operator  to  the  appellant  and 
by  the  appellant  to  its  customers.  It  collects  the  money 
from  its  customers  and  if  it  is  not  paid  it  sues  in  its  own 
name  and  whether  it  is  collected  from  the  customer  or 
charged  off  as  a  loss,  the  appellant  makes  up  to  the  oper- 
ator the  price  of  the  coal  as  its  own  debt.  It  sells  from 
its  own  account.  The  appellant,  in  fact,  never  had  pos- 
session of  the  coal  for  the  account  of  the  operator,  but 
the  deliveries  of  specific  quantities  were  made  directly 
to  customers  upon  its  direction ;  and  in  the  event  of  fail- 
ure to  accept  by  its  customer,  it  did  not  return  the  coal  to 
the  operator  nor  retake  it  for  them;  it  resold  it  for  its 
own  account.  The  appellant  was  limited  to  a  profit  of 
from  ten  to  fifteen  cents  a  ton,  dependent  upon  the  size 
of  the  coal.  The  appellant  is  responsible  for  all  bills 
and  in  the  event  of  insolvency  or  refusal  to  pay  on  the 
part  of  the  customer,  it  must  pay  the  bill.  The  appellant 
challenges  the  conclusion  or  inference  that  the  sales 
"were  for  its  own  account,"  and  urges  the  sales  were  in 
fact  for  its  principal  in  each  case;  that  the  appellant  was 
acting  simply  as  a  del  credere  agent  working  under  a 
fixed  commission;  that  the  profit  or  price  fixed  to  the 
consumer  by  the  appellant  was  a  fixed  commission  or 
compensation  for  services.  It  was  not  entitled  to  any 
increased  profit  in  an  advancing  market.  Such  profit 
or  loss  was  the  operator's,  where  the  product  originated. 
It  admits  that  all  the  other  facts  as  found  by  the  court 
are  correct,  but  they  are  not  the  true  indicia  of  owner- 
ship, but  are  the  usual  and  customary  attributes  of  cer- 
tain forms  of  agency  where  the  agent  acts  for  an  undis- 
closed principal.  Taking  up  these  positions  in  their 
order,  a  del  credere  agent  is  one  under  which  the  agent 
in  consideration  of  an  additional  payment  engages  to  be- 
come surety  to  his  principal  for  not  only  the  solvency 
of  the  debtor,  but  for  the  punctual  discharge  of  the  debt: 
Bouvier's  Law  Dictionary.  The  principal  cannot  sue  the 
del  credere  agent  until  the  debtor  has  refused  or  neglect- 


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412      COM.  v.  THORNB,  NBALE  &  CO.,  Appellant. 

Opinion  of  Superior  Court  [264  Pa. 

ed  to  pay.  He  is  virtually  a  guarantor  and  the  purchaser 
is  the  primary  debtor:  Commercial  Credit  Co.  v.  Girard 
National  Bank,  246  Pa.  88.  There  was  testimony  that 
the  appellant  guaranteed  the  payment  of  these  accounts 
and  they  called  themselves  agents ;  bearing  in  mind  what 
was  said  in  Commercial  Credit  Co.  v.  Girard  National 
Bank,  supra,  "it  is  true  that  they  are  described  in  the 
contract  as  'agents'  and  'sales  agents/  but  as  was  said 
by  Lord  Justice  Jambs  in  Ex  parte  Shite,  In  re  Nevill,  L. 
R.,  6  Ch.  Ap.  397  (p.  399) :  'There  is  no  magic  in  the 
word  "agency ."  It  is  often  used  in  commercial  matters 
where  the  real  relationship  is  that  of  vendor  and  pur- 
chaser.' In  the  same  case  Lord  Justice  Mbllish  said  (p. 
403) :  'Persons  may  suppose  that  their  relationship  is 
that  of  principal  and  agent,  when  in  point  of  law  it  is 
not.'  In  Ex  parte  Flannagans  (U.  S.  D.  Ct.  E.  D.  Va.), 
2  Hughes 264,  the  court  (p.  268)  quoted  with  approval  the 
above  language,  and  added  'if  the  contract  in  its  terms 
really  constituted  them  purchasers,  the  use  of  words, 
implying  that  they  were  agents  does  not  change  the 
fact.' "  The  evidence  shows  the  liability  of  the  appellant 
was  primary,  not  secondary.  The  coal  was  billed  di- 
rectly to  it.  When  shipment  was  made  directly  to  the 
customer,  or  was  shipped  to  some  advantageous  point, 
and  thence  to  the  customer,  the  appellant  became  liable 
for  the  price.  There  was  no  contractual  relation  between 
the  operator  and  the  purchasers  of  the  coal.  The  oper- 
ator looks  solely  to  the  appellant  to  be  paid  the  price  of 
the  coal.  The  charge  on  the  operator's  books  is  against 
the  appellant.    This  does  not  show  secondary  liability. 

The  fixed  commission  or  profits  of  ten  or  fifteen  cents 
per  ton  is  entirely  consistent  with  a  contract  of  sale 
wherein  profits  are  limited.  This  is  not  an  uncommon 
practice  at  the  present  day  and  the  failure  to  secure  prof- 
its on  advancing  markets  and  the  fact  that  they  had  no 
loss  on  declining  markets  was  due  to  the  very  liberal  con- 
tract made  with  the  sellers  of  the  coal.  There  was  not 
much  opportunity  to  lose  on  these  contracts,  except  where 


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COM.  v.  THORNE,  NBALB  &  CO.,  Appellant      413 
1919.]  Opinion  of  Superior  Court. 

there  was  an  irresponsible  purchaser.  They  did  not 
"stock  up"  and  take  the  chances  of  the  market,  but  they 
always  acted  on  the  safe  side.  Their  purchases  were 
conducted  in  one  of  four  methods,  all  of  which  had  a 
great  tendency  to  prevent  loss,  but  in  some  it  can  easily  be 
seen  that  a  profit  could  be  made  beyond  that  stated. 

First.  The  appellant  sold  the  coal  to  a  customer  at  the 
best  price  obtainable.  An  order  was  sent  to  the  operator 
directing  him  to  ship  the  car  to  this  purchaser.  The  car 
was  billed  to  the  appellant  at  the  price  sold  less  ten  or 
fifteen  cents  per  ton,  according  to  the  size  of  the  coal. 
The  coal  was  billed  from  the  appellant  to  the  customer 
plus  the  profit.  There  is  not  much  opportunity  to  lose 
on  a  contract  of  this  kind  and  its  profit  was  assured. 

Second.  The  appellant  would  direct  coal  to  be  con- 
signed to  some  railroad  pier  for  reshipment  by  boat,  or 
some  railroad-holding  point  for  reshipment  to  other 
points.  No  price  was  fixed  to  the  operator,  but  as  soon 
as  the  coal  was  sold  and  delivered  to  the  consignee  the 
operator  billed  the  defendants  for  the  price  sold  less  the 
profit  as  agreed  upon  according  to  the  size  of  the  coal ; 
that  is,  egg,  stove,  chestnut,  pea  and  similar  sizes.  The 
appellant  took  no  chances  on  a  declining  market  here. 
Instead  of  buying  and  holding  the  coal  at  the  mine  and 
waiting  until  it  had  been  sold,  they  placed  it  at  an  ad- 
vantageous point  where  they  could  make  quick  delivery 
from  tidewater  or  reshipping  points.  It  did  not  buy  the 
coal  at  market  price  when  the  coal  was  shipped  to  these 
terminals ;  it  took  no  chance  on  a  declining  market. 

Third.  The  coal  was  directed  to  be  consigned  as  in  the 
second  method,  but  an  arbitrary  price  was  fixed  by  the 
operator  and  the  coal  was  billed  to  the  appellant.  When 
the  appellant  would  sell  the  coal  an  adjustment  of  the 
price  was  made  with  the  operator.  If  the  price  was  less 
than  the  price  at  which  the  operator  billed  the  coal,  the 
profit  or  commission,  as  they  called  it,  of  ten  or  fifteen 
cents  on  the  prepared  sizes  was  still  secured  to  the  ap- 
pellant.   As  in  the  second  and  in  the  first  methods,  their 


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414       COM.  v.  THOENE,  NEALE  &  CO.,  Appellant 

Opinion  of  Superior  Court — Opinion  of  the  Court.  [264  Pa. 
compensation  comes  in  their  fixed  profit  jrith  no  chance 
of  a  loss  except  at  what  we  have  stated. 

Fourth.  The  coal  is  sold  at  the  best  price  obtainable. 
An  order  is  sent  to  the  operator  and  the  coal  is  billed  to 
the  appellant  at  an  arbitrary  price.  Subsequently  an 
adjustment  is  made  and  if  the  arbitrary  price  is  more 
than  that  billed  to  the  customer,  the  appellant's  profit  is 
protected  in  this  adjustment.  This  arbitrary  price  and 
its  future  adjustments  has  its  compensations  as  is  very 
well  known. 

The  point  we  wish  to  emphasize  is  that  the  appellant 
deals  as  a  purchaser  of  coal  without  assuming  the  bur- 
den of  advancing  or  declining  markets  and  deals  in  a  safe 
margin  of  profit  where  the  minimum  loss  is  the  possible 
insolvency  of  a  purchaser  which  can  generally  be  pro- 
vided against.  The  facts  as  we  have  indicated  clearly 
warranted  the  action  of  the  appraisers,  and  if  authorities 
are  necessary  the  case  of  Commercial  Credit  Co.  v.  Gi« 
rard  National  Bank,  supra,  furnishes  a  stronger  case  as 
to  agency  than  is  here  presented. 

The  assignments  of  error  are  dismissed  and  the  decree 
of  the  court  below  is  affirmed. 

Defendant  appealed. 

Error  assigned  was  the  judgment  of  the  Superior 
Court. 

Ira  Jewell  Williams,  with  him  Wm.  E.  McOall,  Jr.,  for 
appellant. 

William  I.  Schaffer,  Attorney  General,  John  T.  Mur- 
phy and  Arthur  L.  Shay,  for  appellees. 

Per  Curiam,  April  21, 1919 : 

Nothing  can  be  profitably  added  to  the  opinion  of  the 
Superior  Court  affirming  the  judgment  of  the  court  be- 
low, and,  on  that  opinion,  this  appeal  is  dismissed. 

Judgment  affirmed. 


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DICKEBSON,  Admrx.,  AppeL,  v.  MIDVALB  B.  ASSN.  415 
1919.]  Syllabus— Arguments. 


Dickerson,  Admrx.,  Appellant,  v.  Midvale  Bene- 
ficial Association. 

Beneficial  association*  —  Beneficiaries  —  Designation  of  bene- 
ficiary. 

1.  Where  the  by-laws  of  an  unincorporated  beneficial  society  pro* 
vide  for  payments  of  death  benefits  to  a  beneficiary  designated  by 
the  member,  with  nothing  to  indicate  that  they  are  to  become  a  part 
of  the  deceased  member's  estate,  no  recovery  can  be  had  against 
the  association  by  an  administrator  of  the  deceased  claiming  for 
the  next  of  kin,  nor  by  the  next  of  kin  directly  even  if  no  bene- 
ficiary was  named,  or  the  designation  was  fatally  defective.  Even 
if  the  fund  were  paid  to  a  person  not  in  fact  the  beneficiary  named, 
the  association  would  not  subsequently  be  liable  to  the  adminis- 
trator or  next  of  kin  of  the  member. 

2.  Such  an  unincorporated  beneficial  society  is  not  an  insurance 
company,  and  the  member  and  his  beneficiary  have  only  such  rights, 
as  grow  out  of  the  rules  of  the  society  and  the  contract  between 
the  parties. 

Argued  March  24,  1919.  Appeal,  No.  248,  Jan.  T., 
1919,  by  plaintiff,  from  decree  of  C.  P.  No.  4,  Philadel- 
phia Co.,  June  T.,  1917,  No.  4143,  dismissing  bill  in 
equity  in  case  of  Addie  W.  Dickerson,  as  Administratrix 
of  the  Estate  of  Manuel  Andre  Monteiro  (sometimes 
called  Manuel  Monte),  deceased,  v.  Midvale  Beneficial 
Association  and  Peter  McAnally  et  al.  Before  Brown, 
C.  J.,  Frazbr,  Walling,  Simpson  and  Kbphabt,  JJ. 
Affirmed. 

Bill  in  equity  against  an  unincorporated  beneficial 
society  to  compel  the  payment  of  death  benefits. 
The  court  in  an  opinion  by  Cabr,  J.,  dismissed  the  bill. 
Plaintiff  appealed. 

Error  assigned  was  decree  dismissing  the  bill. 

O.  Edward  Dickerson,  with  him  John  B.  Edwards,  for 
appellant. — Where  an  unincorporated  beneficial  associ- 
ation assesses  and  collects  a  large  sum  of  money  from  its 


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416  DICKEBSON,  Admrx.,  Appel.,  v.  MIDVALE  B.  ASSN. 
Arguments — Opinion  of  the  Court  [264  Pa. 

membership  upon  the  death  of  a  member  who  has  made  a 
defective  and  ineffectual  designation  of  a  beneficiary,  a 
trust  will  result  for  the  benefit  of  those  legally  and 
equitably  entitled,  iQ  the  absence  of  a  provision  in  the 
by-laws  for  such  a  contingency :  Com.  v.  Equitable  Bene- 
ficial Assn.,  137  Pa.  412;  Blair  v.  Supreme  Council,  208 
Pa.  262. 

Where  a  member  names  as  his  beneficiary  "Brother 
Tony"  and  it  is  found  that  he  had  no  brother  bearing  that 
name,  a  patent  ambiguity  arises  and  the  appointment 
fails. 

Where  the  by-laws  of  a  beneficial  association  are  silent 
as  to  the  disposition  of  a  fund  specially  collected  upon 
the  death  of  a  member  to  be  paid  to  his  nominee,  in  case 
the  same  cannot  be  legally  ascertained,  such  fund  inures 
to  the  benefit  of  his  estate  or  his  heir  at  law,  and  should 
be  defended  against  any  unlawful  taker. 

Robert  T.  McCracken,  with  him  Roberts,  Montgomery 
&  McKeehan,  for  appellees. — The  plaintiff  in  this  case 
has  no  standing  to  sue  for  the  fund  in  controversy: 
Northwestern  Masonic  Aid  Assn.  v.  Jones,  154  Pa.  99; 
Kelley's  Est.,  29  Pa.  Superior  Ct.  106;  Spadoni  v.  Nat. 
Slavonic  Assn.,  15  Pa.  Dist.  Bep.  124. 

This  fund  has  been  paid  to  the  properly  designated 
beneficiary :  Hamner  v.  Griffith,  1  Grant  193 ;  Pleason- 
ton's  Est.,  232  Pa.  381 ;  White's  Est.,  249  Pa.  115. 

Opinion  by  Me.  Justice  Walling,  April  21, 1919 : 
This  bill  in  equity  is  by  an  administrator  to  recover 
death  benefits  from  a  beneficial  society.  In  1883  the  de- 
fendant was  organized  as  an  unincorporated  beneficial 
association,  made  up  exclusively  of  the  employees  of  the 
Mid  vale  Steel  Company  of  Philadelphia,  and  so  con- 
tinued until  1916  when  it  became  chartered  as  a  Penn- 
sylvania corporation.  The  deceased,  Manuel  Andre 
Monteiro  (sometimes  called  Manuel  Monte) ,  an  employee 
of  the  company,  became  a  member  of  the  society  in  1910, 


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DICKERSON,  Admrx.,  AppeL,  t>.  MIDVALE  B.  ASSN.  417 
1919.]  Opinion  of  the  Court. 

and  so  continued  until  his  accidental  death  in  1911.  In 
his  application  for  membership  he  was  entitled  to  and  . 
did  designate  a  beneficiary;  that  clause  of  his  appli-  I 
cation  being  as  follows :  "Also,  that  I  hereby  designate  : 
Brother  Tony  residing  same  as  the  person  to  whom  shall  ; 
be  paid,  in  case  of  my  death,  in  manner  set  forth  in  ; 
Article  VI,  Section  2,  of  the  above  By-Laws,  any  money, 
provided  to  be  paid  in  such  case  by  said  By-Laws."  The 
by-laws  provided,  inter  alia,  for  the  payment  of  death 
benefits  to  the  beneficiary  named  in  the  application,  also 
authorized  the  member  to  change  the  beneficiary;  but 
there  was  no  provision  in  the  application,  by-laws  or 
elsewhere,  for  payment  of  death  benefits  to  any  one  ex- 
cept a  designated  beneficiary,  and  nothing  to  indicate  an 
intention  that  the  same  should  become  a  part  of  the  de- 
ceased member's  estate.  On  the  death  of  Monteiro,  his 
beneficiary  was  entitled  to  receive  from  the  society  the 
sum  of  |1,861.75,  which  it  was  ready  and  willing  to  pay ; 
but,  owing  to  a  defect  in  the  designation  of  beneficiary 
(as  the  deceased  had  no  brother  "Tony"),  doubt  arose 
as  to  whom  it  should  be  paid.  Whereupon  an  issue  was 
framed  between  rival  claimants  to  determine  its  owner- 
ship. This  was  in  Court  of  Common  Pleas,  No.  5,  of 
Philadelphia  County,  where  the  fund  was  finally  award- 
ed and  paid  to  one  Antonio  Pedro  Graca,  whom  that 
court  found  was  the  beneficiary  intended.  Thereafter 
plaintiff  was  appointed  administrator  of  the  deceased 
and  brought  this  suit  against  the  society  for  the  same 
fund.  After  a  full  hearing  and  consideration,  the  court 
below  by  final  decree  dismissed  the  bill  upon  the  ground, 
inter  alia,  that  the  fund  was  no  part  of  the  deceased 
member's  estate  and  his  administrator  had  no  standing 
to  bring  suit  therefor.  Prom  which  decree  plaintiff 
brought  this  appeal. 

The  able  presentation  of  appellant's  case  has  failed  to 

convince  us  of  error  in  the  conclusion  of  the  trial  court. 

A  beneficial  society,  like  defendant,  is  not  an  insurance 

company  (Heasley  v.  Heasley,  191  Pa.  539;  North  west- 

lVol.  cclxiv— 27 

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418  DICKEBSON,  Admrx.,  AppeL,  v.  MIDVALB  B.  ASSN. 
Opinion  of  the  Court  [264  Pa. 

em  Masonic  Aid  Assn.  v.  Jones  et  al.,  154  Pa.  99),  and 
therein  the  member  and  his  beneficiary  have  such  rights 
only  as  grow  out  of  the  rules  of  the  society  and  contract 
between  the  parties.  Here  the  only  provision  for  pay- 
ment of  death  benefits  was  to  the  beneficiary  and  if  none 
was  named,  or  the  designation  fatally  defective,  there  is 
not  right  of  recovery,  as  such  benefits  form  no  part  of 
the  deceased  member's  estate:  19  R.  C.  L.,  p.  1311  (sec. 
100) ;  Kelley's  Est.,  29  Pa.  Superior  Ct.  106.  When 
alive  the  fund  was  not  his  and  his  only  power  over  it  was 
the  right  to  appoint  a  beneficiary  (Northwestern  Ma- 
sonic Aid  Assn.  v.  Jones  et  al.,  supra) ;  and  on  failure 
to  do  so  the  fund  reverted  to  the  society.  See  Bacon  on 
the  Law  of  Life  and  Accident  Insurance  (4th  ed.)  sec- 
tions 306,  310,  313;  Order  of  Mutual  Companions  v. 
Griest  et  al.,  76  Cal.  494. 

The  contention  that  plaintiff  can  maintain  the  action 
for  the  benefit  of  Monteiro's  mother  cannot  be  sustained. 
She  was  not  named  as  a  beneficiary — the  son  might  have 
so  designated  her  but  did  not — and  she  as  next  of  kin  has 
no  legal  claim  upon  the  fund,  recoverable  directly  or 
through  an  administrator.  Were  this  a  life  insurance 
contract,  then,  in  the  absence  of  a  duly  constituted  bene- 
ficiary, the  administrator  of  the  insured's  estate  might 
recover  same  for  the  benefit  of  those  legally  entitled,  but 
that  rule  does  not  apply  to  a  beneficial  society.  As  our 
conclusion  upon  this  branch  of  the  case  is  fatal  to  plain- 
tiffs action,  it  is  not  necessary  to  consider  the  other  ques- 
tions raised  in  the  record. 

The  appeal  is  dismissed  at  the  costs  of  appellant. 


McBvoy  v.  Quaker  City  Cab  Co.,  Appellant. 

Negligence — Automobiles — Running  by  standing  car — Speed- 
Evidence — Case  for  jury. 

1.  In  an  action  against  the  owner  of  a  taxicab  for  personal  in- 
juries sustained  by  plaintiff  when  run  down  by  the  cab  while  board- 
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McBVOT  v.  QUAKER  CITY  CAB  CO.,  Appellant.  419 

1919.]  Syllabus— Assignment  of  Error, 

ing  a  trolley  car,  the  case  is  for  the  jury  where  the  plaintiff's  evi- 
dence, although  contradicted,  tended  to  show  that  plaintiff  was 
standing  on  the  southeast  corner  of  a  street  intersection,  and  walked 
north  on  to  the  eastbound  track,  when  the  motorman  of  a  west- 
bound car,  which  was  on  the  north  track  and  had  stopped  just  east 
of  the  intersection,  signalled  him  to  go  on,  and  he  passed  before  the 
car,  and  was  about  to  enter  it  at  the  front  door  on  the  north  side 
when  he  was*  knocked  down  and  seriously  injured  by  defendant's 
rapidly  moving  westbound  taxicab,  which  without  warning  passed 
close  to  the  entrance  of  the  trolley  car.  In  such  a  case  the  evidence 
justified  a  finding  of  negligence,  aside  from  any  traffic  regulation. 

Practice,  C.  P. — New  trial — Abuse  of  discretion — Appeals. 

2.  The  action  of  the  trial  court  in  passing  upon  a  motion  for  a 
new  trial,  is  subject  to  reversal  only  in  case  of  manifest  abuse  of 
discretion. 

Practice,  Supreme  Court — Objection  not  made  below — Excessive 
verdict — New  trial. 

3.  Where  complaint  that  the  verdict  is  excessive  was  not  made 
in  the  court  below,  it  will  not  be  considered  on  appeal;  the  power 
of  the  appellate  court  to  grant  a  new  trial  on  this  ground  is  very 
exceptional. 

Practice,  C.  P. — Remarks  of  counsel — Exception — Appeals. 

4.  The  appellate  court  will  not  consider  an  assignment  of  error 
based  on  alleged  improper  remarks  of  counsel  to  the  jury,  where  no 
objection  or  exception  was  taken  at  the  time  to  such  remarks. 

Argued  March  24,  1919.  Appeal,  No.  242,  Jan.  T., 
1919,  by  defendant,  from  judgment  of  C.  P.  No.  2,  Phil- 
adelphia Co.,  Dec.  T.,  1918,  No.  3252,  on  verdict  for  plain- 
tiff in  case  of  Jerome  F.  McEvoy  v.  Quaker  City  Cab  Com- 
pany. Before  Brown,  C.  J.,  Frazbr,  Walling,  Simp- 
son and  Kbphaet,  JJ.    Affirmed. 

Trespass  to  recover  damages  for  personal  injuries.  Be- 
fore Wbssbl,  J. 

Verdict  and  judgment  for  plaintiff  for  f  12,500.  De- 
fendant appealed. 

Error  assigned  was  in  refusing  judgment  for  defendant 
n,  o.  v. 


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420  McBVOT  v.  QUAKER  CITY  CAB  CO.,  Appellant 

Arguments — Opinion  of  the  Court  [264  Pa. 

Robert  P.  SMck,  with  him  Charles  F.  DaOasta,  for  ap- 
pellant. 

Bertram  D.  Rearick,  for  appellee. 

Opinion  by  Mr.  Justice  Walling,  April  21, 1919 : 
On  the  morning  of  January  15,  1918,  plaintiff,  while 
attempting  to  board  a  westbound  trolley  car  in  Market 
street,  at  the  intersection  of  Nineteenth  street,  Philadel- 
phia, was  injured  by  one  of  defendant's  taxicabs;  for 
which  he  brought  this  suit.  The  evidence  was  conflict- 
ing, that  for  plaintiff  tended  to  show  he  was  standing  on 
the  southeast  corner  of  the  street  intersection  and  walked 
north  onto  the  eastbound  track,  when  the  motorman 
of  the  westbound  car,  which  was  on  the  north  track  and 
had  stopped  just  east  of  Nineteenth  street,  signalled 
plaintiff  to  go  on,  and  he  passed  before  that  car  and  was" 
about  to  enter  it  at  the  front  door  on  the  north  side  when 
he  was  knocked  down  and  seriously  injured  by  defend- 
ant's rapidly  moving  westbound  taxicab,  which  without 
warning  passed  close  to  the  entrance  of  the  trolley  car. 
Defendant's  evidence  was  to  the  effect  that  the  trolley 
car  did  not  come  to  a  full  stop  and  plaintiff  while  cross- 
ing ahead  of  it  slipped  on  the  icy  street  and  fell  in  front 
of  the  slowly  moving  taxicab,  which  stopped  within  two 
or  three  feet  and  but  slightly  touched  him,  and  that  the 
taxicab  never  came  up  with  the  front  end  of  the  trolley 
car.  Each  side  was  supported  by  three  witnesses,  and 
the  trial  judge  instructed  the  jury  to  find  for  defendant 
if  they  believed  its  evidence.  There  was  also  some  con- 
flict in  the  testimony  as  to  the  extent  of  plaintiff's  injuries. 
The  charge  covered  the  case  and  no  exception  was  taken 
thereto;  however,  defendant  submitted  a  request  for 
binding  instructions,  and,  after  verdict  for  plaintiff, 
moved  for  judgment  n.  o.  v.,  and  also  for  a  new  trial 
After  consideration,  these  motions  were  refused  and 
judgment  entered  upon  the  verdict ;  from  which  defend- 
ant appealed. 


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McBVOY  v.  QUAKER  CITY  CAB  CO.,  Appellant.  421 

1919.]  Opinion  of  the  Court.. 

Assuming  as  we  must  the  truth  of  plaintiffs  evidence, 
the  case  could  not  have  been  withdrawn  from  the  jury, 
nor  judgment  entered  for  defendant  n.  o.  v.  Fop  where 
a  taxicab  is  driven  rapidly  past,  and  in  close  proximity 
to,  the  entrance  of  a  trolley  car,  where  passengers  are 
going  in  and  out,  it  justifies  a  finding  of  negligence,  aside 
from  any  traffic  regulation ;  and  there  was  nothing  in  the 
case  which  the  court  could  declare  contributory  negligence. 

As  no  exception  was  taken  to  the  charge  and  no  request 
made  for  further  instructions,  appellant  is  not  in  a 
position  to  urge  that  it  was  inadequate  or  insufficient. 

The  action  of  the  trial  court  in  passing  upon  a  motion 
for  a  new  trial  is  subject  to  review  only  in  case  of  mani- 
fest abuse  of  discretion.  We  have  carefully  examined 
all  of  the  numerous  motions,  statements,  petitions,  affi- 
davits and  depositions,  submitted  in  support  of  the  rule 
for  a  new  trial,  but  are  not  satisfied  that  the  trial  court's 
action  thereon  constitutes  a  manifest  abuse  of  discretion. 

So  far  as  appears,  the  suggestion  that  the  verdict  is 
excessive  was  not  made  in  the  court  below  and,  hence,  is 
not  properly  before  us ;  but  it  could  not  be  sustained  if  it 
were,  as  nothing  is  shown  to  justify  this  court  in  exer- 
cising the  very  exceptional  power  of  granting  a  new  trial 
upon  that  ground. 

No  objection  was  made  at  the  time  or  exception  taken 
to  the  remarks  of  plaintiffs  counsel  in  his  address  to  the 
jury  and  we  cannot  now  consider  the  error  assigned 
thereto.  A  party  may  not  sit  by  and  take  his  chances  of 
a  verdict  and  then,  if  adverse,  complain  of  something  the 
opposing  counsel  said  in  his  summing  up  to  the  jury. 

Complaint  is  made  of  the  trial  court's  refusal  to  cor- 
rect the  record  so  as  to  show  that  plaintiffs  counsel  made 
the  opening  argument  to  the  jury,  and  also  so  as  to  make 
an  assignee  of  the  judgment  use-plaintiff;  but  so  far  as 
we  can  discover  those  matters  are  immaterial. 

We  find  nothing  in  the  record  to  justify  a  reversal. 
The  assignments  of  error  are  overruled  and  the  judgment 
is  affirmed. 


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422  KESSLER'S  ESTATE. 

Syllabus— Statement  of  Facts.  [264  Pa. 

Kessler's  Estate. 

Willi — Power  of  sale — Conversion. 

Where  a  testator  gives  his  estate  to  his  executors  in  trust  to  pay 
the  income  to  his  wife  for  life,  and  after  her  death  to  pay  the  in- 
come of  his  brother  for  life  and  further  provides  that  "£ or  the  bet- 
ter management  and  final  distribution  of  my  estate  I  authorize  and 
empower  (and  after  the  decease  of  my  wife  and  brother  which  ever 
shall  last  happen)  order  and  direct  my  executors  to  sell  and  dispose 
of  the  whole  or  any  part  of  my  real  estate,"  the  direction  to  sell  after 
the  death  of  the  wife  and  brother,  works  a  conversion  of  the  real 
estate  into  money,  and  after  the  death  of  the  wife  and  brother,  it  is 
properly  distributed  as  such. 

Argued  March  24,  1919.  Appeal,  No.  253,  Jan.  T., 
1919,  by  John  H.  Heiss,  from  decree  of  O.  O.  Philadel- 
phia Co.,  April  T.,  1904,  No.  463,  dismissing  exceptions 
to  adjudication  in  Estate  of  Thomas  Kessler,  deceased. 
Before  Brown,  C.  J.,  Fbazbr,  Walling,  Simpson  and 
Kephart,  JJ.    Affirmed. 

Exceptions  to  adjudication  by  Gbst,  J. 

From  the  record  it  appeared  that  Thomas  H.  Kessler 
died  on  May  2, 1904,  leaving  a  will  and  codicils,  by  which 
he  devised  and  bequeathed  his  residuary  estate  to  his 
executors  in  trust  to  pay  the  income  to  his  wife,  Clara 
E.  Kessler,  for  the  term  of  her  life,  and  upon  her  decease 
to  pay  the  income  to  his  brother,  George  F.  Kessler,  if 
living,  for  the  term  of  his  life,  and  upon  the  decease  of 
both  his  said  wife  and  brother. 

The  fifth  clause  was  as  follows :  "For  the  better  man- 
agement and  final  distribution  of  my  estate  I  authorize 
and  empower  (and  after  the  decease  of  my  wife  and 
brother  which  ever  shall  last  happen  order  and  direct) 
my  said  executors  and  the  survivor  of  them  to  sell  and 
dispose  of  the  whole  or  any  part  of  my  real  estate,  &c." 

Clara  E.  Kessler,  the  widow,  died  May  23, 1916,  having 
been  predeceased  by  George  F.  Kessler,  the  brother,  who 
died  February  3, 1915,  so  that  the  trust  has  terminated. 


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KESSLER'S  ESTATE.  423 

1919.]  Statement  of  Facts— Opinion  of  the  Court. 

The  fund  before  the  court  includes  only  the  sum 
awarded  by  the  board  of  viewers  for  damages  for  taking 
ground  of  the  decedent  in  the  opening  of  Broad  street 
through  real  estate  of  which  he  died  seized. 

The  court  distributed  the  fund  as  personal  property. 

Exceptions  to  the  adjudication  were  dismissed.  (See 
28  Dist.  Bep.  171.)  John  H.  Heiss,  a  residuary  claimant, 
appealed. 

Errors  assigned  were  in  dismissing  exceptions  to  the 
adjudication. 

Isaac  Gordon  Forster,  with  him  Abraham  Wernich 
and  Rowland  0.  Evans,  for.  appellant. 

Charles  I.  Oronin  and  Owen  J.  Roberts,  for  appellee, 
were  not  heard. 

Per  Curiam,  April  21, 1919: 

During  the  continuance  of  the  trust  for  the  benefit  of 
the  widow  and  brother  of  the  testator  the  sale  of  his 
real  estate  was  within  the  discretion  of  his  executors, 
but  his  unqualified  direction  was  that  upon  the  death  of 
the  survivor  of  them,  they  should  sell  it  for  the  purpose 
of  distribution.  That  this  converted  it  into  money  is  be* 
yond  question,  and  it  was  so  properly  distributed  by  the 
court  below:  Laird's  App.,  85  Pa.  339;  Bull's  Est.,  222 
Pa.  208. 

Appeal  dismissed  and  decree  affirmed  at  appellant's 
costs. 


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424  GREEN  &  C.S.P.  P.  RY.  CO.,  Appel.,  v.  PHILAR.T.CO. 

Syllabus— Statement  of  Facts.  [264  Pa. 


Green  &  Coates  Sts.  Philadelphia  Passenger  By., 
Appellant;  v.  Philadelphia  Rapid  Transit  Go. 

Railroad* — Lease* — Dividend* — Taxe* — Taxation. 

Where  a  lease  of  a  street  railway  provides  that  the  lessee  shall 
"pay  all  taxes,  charges  and  assessments,  now  or  hereafter  lawfully 
imposed  upon  the  lessor's  existing  bonds,  capital  stock,  real  and 
personal  property  and  future  dividends,"  the  lessee  is  not  required 
to  pay  the  lessor's  federal  income  tax  assessed  upon  the  rental  paid 
under  the  lease. 

Argued  March  25,  1919.  Appeal,  No.  250,  Jan.  T., 
1919,  by  plaintiff,  from  judgment  of  C.  P.  No.  3,  Phila- 
delphia Co.,  June  T.,  1918,  No.  3157,  for  defendant  on 
statutory  demurrer,  in  case  of  Green  &  Coates  Streets 
Philadelphia  Passenger  Railway  Company  v.  Philadel- 
phia Rapid  Transit  Company.  Before  Bbown,  C.  J., 
Moschzisker,  Fbazbr,  Walling  and  Kbphabt,  J  J.  Af- 
firmed. 

Assumpsit  for  income  taxes  paid  on  rental. 

In  1881  the  plaintiff  leased  to  the  Peoples  Passenger 
Railway  Company  all  its  franchises  and  property,  saving 
only  the  bare  franchise  to  be  a  corporation,  for  a  period 
of  999  years.  As  rental  the  lessee  agreed  to  pay  to  the 
stockholders  of  the  lessor  a  quarterly  dividend  of  f  1.50 
on  the  outstanding  stock  of  the  lessor,  to  pay  the  interest 
on  the  lessor's  bonds,  to  redeem  the  bonds  at  maturity, 
and  to  pay  a  specified  sum  each  year  for  the  maintenance 
of  the  lessor's  corporate  organization.  By  the  sixth 
clause  of  the  lease  it  was  further  agreed : 

"Sixth.  That  the  Lessee  shall  assume  and  pay  all 
taxes,  charges  and  assessments,  now  or  hereafter  lawfully 
imposed  upon  the  Lessor's  existing  bonds,  capital  stock, 
real  and  personal  property  and  future  dividends ;  also, 
all  license  fees  for  each  car  run ;  also,  the  interest,  taxes 
and  principal  of  the  existing  mortgages  on  real  estate 


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GREEN  &  C.S.P.  P.  RY.  CO.,  Appel.,  v.  PHILA.R.T.CO.  425 
1919.]  Statement  of  Facts — Opinion  of  Court  below, 
of  the  Lessor,  according  to  the  tenor  of  the  same  mort- 
gages, and  the  accrued  and  the  accruing  ground  rent 
issuing  out  of  the  said  real  estate,  and,  also  any  sum 
which  may  be  recovered  in  any  existing  suit,  or  cause  of 
suit  against  the  Lessor,  including  all  costs  and  counsel 
fees." 

By  subsequent  assignment  the  obligations  of  this  lease 
were  assumed  by  defendant. 

For  the  year  1917  the  plaintiff  was  assessed  an  income 
tax  amounting  to  $3,599.52  upon  the  rental  paid  by  the 
defendant  under  the  lease.  After  demand  upon  and  re- 
fusal by  defendant  to  pay  the  tax,  plaintiff  paid  it  and 
brought  this  suit  to  recover  the  amount  so  paid.  De- 
fendant filed  an  affidavit  of  defense  in  the  nature  of  a 
demurrer. 

Ferguson,  J.,  filed  the  following  opinion: 

The  covenants  in  this  case  which  bind  the  defendant 
provide  that  it,  as  agent  for  the  lessor  (the  plaintiff), 
shall  pay  to  and  distribute  among  the  stockholders  of  the 
lessor  entitled  to  receive  the  same  a  certain  amount  per 
share  in  each  year,  and  also  to  pay  "all  taxes,  charges 
and  assessments  now  or  hereafter  lawfully  imposed  upon 
the  lessor's  existing  bonds,  capital  stock,  real  and  per- 
sonal property  and  future  dividends." 

In  our  opinion  this  lease  comes  within  the  ruling  of 
Catawissa  B.  R.  Company  v.  Phila.  &  Beading  By.  Com- 
pany, 255  Pa.  269.  In  that  case  the  covenant  required 
the  lessee  to  pay  any  taxes  upon  the  capital  stock  of  the 
lessor  company  or  the  dividends  thereon.  In  the  case  at 
bar  the  only  feature  of  the  covenant  on  which  an  argu- 
ment could  be  made  which  would  bind  the  defendant 
would  be  that  part  requiring  it  to  pay  taxes  assessed 
upon  future  dividends.  As  the  Chief  Justice  pointed  out 
in  the  Catawissa  case  the  tax  levied  by  the  Federal  Gov- 
ernment was  not  a  tax  upon  dividends  but  a  tax  upon 
income.  For  these  reasons  judgment  must  be  entered 
for  the  defendant. 


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426  GREEN  &  C.S.P.  P.  BY.  CO.,  AppeL,  v.  PHILA.R.T.CO. 
Statement  of  Facts — Opinion  of  the  Court      [264  Pa. 
Judges  McMiohabl  and  Davis  concur  in  this  opinion. 
Plaintiff  appealed. 

Error  assigned  was  the  judgment  of  the  court. 

Ralph  B.  Evans,  of  Prichard,  Saul,  Bayard  d  Evans, 
for  appellant. 

Edward  Hopkinson,  Jr.,  with  him  Ellis  Ames  Ballard, 
for  appellee. 

Pbb  Curiam,  April  21, 1919 : 

This  judgment  is  affirmed  on  the  opinion  of  the  lower 
court  directing  it  to  be  entered. 


Kelly  et  al.,  Appellants,  v.  Pennsylvania 
Bailroad  Co. 

Negligence — Railroads — Position  of  peril — Sudden  emergency — 
Soldier  on  guard  at  bridge — Contributory  negligence. 

1.  A  soldier  appointed  to  guard  a  railroad  bridge  will  not  be 
held  guilty  of  contributory  negligence  as  a  matter  of  law,  if  that 
which  is  charged  as  negligence  was  done  in  obedience  to  the  gen* 
eral  orders  of  his  superior  officer,  and  the  defendant  railroad  com- 
pany, whose  bridge  was  being  guarded,  had  knowledge  of,  or  upon 
inquiry  could  have  ascertained  what  those  orders  were. 

2.  One  properly  upon  the  tracks  of  a  railroad  company  has  the 
right  to  assume  it  will  exercise  the  utmost  care  to  avoid  injuring 
him,  and  cannot  be  held  guilty  of  contributory  negligence  as  a 
matter  of  law  because  he  did  not  anticipate  a  neglect  of  duty  upon 
its  part. 

3.  One  who  without  fault  is  placed  in  imminent  peril  by  another, 
is  not  chargeable  with  contributory  negligence  because  in  the  brief 
time  in  which  he  had  to  both  decide  and  act,  he  did  not  select  the 
best  course  to  escape  the  threatened  injury. 

Argued  March  25,  1919.  Appeal,  No.  259,  Jan.  T., 
1919,  by  plaintiffs,  from  order  of  C.  P.  No.  5,  Philadelphia 
Co.,  Dec.  T.,  1917,  No.  2173,  refusing  to  take  off  nonsuit 


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KELLY,  Appellants,  v.  PBNNA.  R.  R.  CO.         427 
1919.]  Statement  of  Facte— Arguments. 

in  case  of  Vincent  deP.  Kelly  by  his  father  and  next 
friend,  Thomas  W.  Kelly,  and  Thomas  W.  Kelly  in  his 
own  right,  v.  Pennsylvania  Bailroad  Company.  Before 
Brown,  C.  J.,  Moschziskbb,  Frazbb,  Walling,  Simp- 
son and  Kbphabt,  JJ.    Reversed. 

Trespass  to  recover  damages  for  personal  injuries. 

At  the  trial  the  court  entered  a  compulsory  nonsuit 
which  it  subsequently  refused  to  take  off.  Plaintiffs  ap- 
pealed. 

Error  assigned  was  refusal  to  take  off  nonsuit. 

James  J.  Breen,  with  him  James  B.  McGrane,  for  ap- 
pellant.— The  case  was  for  the  jury :  Van  Zandt  v.  Phila. 
B.  &  W.  B.  B.  Co.,  248  Pa.  276. 

In  principle  there  is  no  distinction  between  the  rights 
and  duties  of  an  employee  of  an  independent  contractor 
properly  at  work  on  the  tracks  of  the  railroad  and  those 
of  a  soldier  stationed  by  his  superior  officers  to  guard 
the  railroad  tracks  on  a  bridge :  Glunt  v.  Penna.  B.  B. 
Co.,  249  Pa.  522 ;  Waina  v.  Penna.  B.  B.  Co.,  251  Pa.  213 ; 
Quinn  v.  Pittsburgh,  243  Pa.  522;  Christman  v.  Phila., 
etc.,  By.  Co.,  141  Pa.  604;  Wagner  v.  P.  B.  T.  Co.,  252 
Pa.  354;  Diehl  v.  Lehigh  Val.  B.  B.,  254  Pa.  404;  Welsh 
v.  P.  B.  T.  Co.,  63  Pa.  Superior  Ct.  143 ;  Schmidt  y.  P.  B. 
T.  Co.,  253  Pa.  502. 

Francis  B.  Biddle,  with  him  SHarsvoood  Brinton,  for 
appellee. — Under  the  authorities  the  plaintiff  was  clearly 
guilty  of  contributory  negligence,  which  caused  the  ac- 
cident :  Bailroad  v.  Norton,  24  Pa.  465 ;  Phila.  &  Beading 
By.  Co.  v.  Hummell,  44  Pa.  375;  Phila.  &  Beading  By. 
Co.  v.  Spearen,  47  Pa.  300;  Mulherrin  v.  Del.,  Lack.  & 
Western  B.  B.  Co.,  81  Pa.  366;  Pittsburgh,  Port  Wayne 
&  Chicago  By.  Co.  v.  Collin,  Penman  v.  McKeesport,  Du- 
quesne,  etc.,  By.  Co.,  201  Pa.  247;  Owens  v.  Peoples  Pass. 
By.,  155  Pa.  334. 


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428         KELLY,  Appellants,  v.  PENNA.  R.  E.  CO. 

Opinion  of  the  Court.  [264  Pa. 

Opinion  by  Mr.  Justice  Simpson,  April  21, 1919 : 

Vincent  deP.  Kelly,  a  minor,  by  his  father  and  next 
friend  Thomas  W.  Kelly,  and  Thomas  W.  Kelly  in  his 
own  right,  sued  the  Pennsylvania  Railroad  to  recover  for 
injuries  to  Vincent.  The  trial  judge  entered  a  nonsuit 
which  the  court  in  banc  refused  to  set  aside,  and  this 
appeal  followed. 

Vincent  was  a  private  in  the  109th  United  States  In- 
fantry, and  was  one  of  a  squad  detailed  to  patrol  the 
bridge  of  the  Pennsylvania  Railroad  Company  crossing 
the  Delaware  river  from  Bridesburg,  Pennsylvania,  to 
Delair,  New  Jersey.  The  bridge  was  about  sixty  feet 
above  the  bank  of  the  river,  ran  approximately  east  and 
west,  had  on  it  two  railroad  tracks,  one  for  eastbound 
and  the  other  for  westbound  traffic,  between  the  nearest 
rails  of  which  was  a  distance  of  about  four  feet,  and 
from  the  outer  rail  of  each  to  the  side  of  the  bridge, 
which  had  no  railing,  was  a  distance  of  about  eight 
inches.  Some  forty  or  fifty  feet  west  of  the  bridge 
the  tracks  curved  to  the  northward,  preventing  a  view 
of  eastbound  trains  while  westbound  trains  were  pass- 
ing. 

The  orders  given  to  the  soldiers  were  that  they  should 
pace  up  and  down  the  four-feet  wide  space  between  the 
tracks  and  across  to  the  edge  of  the  bridge,  "protect  the 
bridge  and  leave  no  loiterers  around;  nobody  to  pass 
under  the  bridge  without  a  pass  signed  by  an  official  of 
the  railroad,"  and  if  a  train  or  trains  approached  "the 
only  instructions  that  we  got  was  that  when  a  train 
came  in  one  direction,  they  were  to  get  on  the  other  track 
and  avoid  that  train,"  and  in  the  case  of  trains  on  both 
tracks  "if  they  saw  them  their  instructions  were  to  lie 
down  flat  on  their  belly"  in  the  four-feet  space  between 
the  tracks.  The  reason  for  those  instructions  obviously 
was  because  the  suction  of  passing  trains  made  the  space 
between  the  tracks  dangerous,  and  therefore  was  not  to 
be  occupied  while  trains  were  passing,  unless  it  was 
necessary  so  to  do  because  of  the  approach  of  trains  on 


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KELLY,  Appellants,  v.  PENNA.  R.  R.  CO.         429 

1919.]  Opinion  of  the  Court, 

both  tracks.  There  is  no  direct  evidence  showing  de- 
fendant knew  of  these  instructions,  but  it  knew  the 
bridge  was  being  guarded  by  United  States  soldiers;  it 
knew  they  were  pacing  up  and  down  between  the  two 
tracks;  it  knew  of  the  dangerous  character  of  the  loca- 
tion between  the  tracks ;  it  knew  there  was  no  place  be- 
yond the  tracks  where  the  soldiers  could  go  during  the 
passage  of  trains;  it  knew  the  soldiers  had  to  comply 
with  the  orders  given  them  by  their  superior  officers 
under  penalty  of  military  punishment;  and  quite  prob- 
ably it  knew  the  orders  specifying  what  those  on  guard 
should  do  while  trains  were  passing,  and  even  if  it  was 
ignorant  thereof  it  had  ample  time  to  and  could  easily 
have  ascertained  what  those  orders  were. 

Prom  plaintiffs'  evidence,  which  on  this  appeal  must  be 
accepted  as  true,  we  find  that  on  June  21,  1917,  about 
7:30  p.  m.,  while  Vincent  was  patrolling  the  east  end 
of  the  bridge,  a  freight  train  approached  from  the  New 
Jersey  side.  As  it  neared  him,  he  looked  to  see  if  a  train 
was  coming  on  the  eastbound  track,  and  seeing  none 
obeyed  his  orders  and  stepped  on  that  track  to  await  the 
passage  of  the  freight  train,  carefully  looking  over  the 
edge  of  the  bridge  to  see  if  there  were  suspicious  char- 
acters on  the  tracks  below.  As  he  straightened  up  after 
his  inspection  he  saw  for  the  first  time  an  eastbound 
Atlantic  City  express  train  almost  on  him  and  approach- 
ing very  fast,  he  attempted  to  jump  out  of  the  way,  but 
before  he  could  escape  it  struck  him,  threw  him  over  the 
side  of  the  bridge,  and  he  received  the  injuries  of  which 
he  complains.  No  signal  was  given  of  the  approach  of  the 
train,  and  it  was  not  visible  because  of  the  curve  of  the 
tracks  and  the  presence  of  the  freight  train  on  the  other 
track,  and  could  not  be  heard  because  of  the  noise  made 
by  the  latter. 

It  is  conceded  the  question  of  defendant's  negligence 
was  for  the  jury,  but  it  was  contended,  and  the  court  be- 
low held,  Vincent  was  guilty  of  contributory  negligence 
because  when  the  freight  train  approached  he  stepped 


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430         KELLY,  Appellants,  v.  PENNA.  R.  B.  CO. 

Opinion  of  the  Court.  [264  Pa. 

upon  the  other  track  instead  of  lying  down  in  the  space 
between  the  two  sets  of  tracks.  We  think  that  conclusion 
is  clearly  erroneous.  To  have  then  laid  down  would  not 
only  have  been  in  violation  of  his  orders  and  have  sub- 
jected him  to  military  discipline,  but  it  would  also  have 
prevented  him  from  fully  performing  his  duty.  The 
United  States  Government  had  charge  of  the  bridge  at 
that  time,  and  its  soldiers  cannot  be  put  in  the  dilemma  of 
being  punished  if  they  do  not  obey  their  superior  officers, 
and,  for  the  benefit  of  a  negligent  company  whose  prop- 
erty they  are  guarding,  of  being  punished  also  if  they  do. 
Appellant  might  just  as  well  claim  that  one  of  its  own 
employees,  strictly  obeying  its  specific  orders,  should  be 
held  guilty  of  contributory  negligence  for  so  doing.  The 
words  imply  the  doing  of  something  a  party  ought  not 
to  do,  and  cannot  be  construed  to  cover  the  doing  of  that 
which  he  ought  to  do.  The  subject  has  been  so  fully 
covered  in  our  recent  cases  of  Reed  v.  Pittsburgh,  Cin- 
cinnati, Chicago  &  St.  Louis  Ry.  Co.,  243  Pa.  562,  and 
Van  Zandt  v.  Phila.,  Bait.  &  Washington  R.  R.  Co.,  248 
Pa.  276,  it  is  not  necessary  to  elaborate  the  matter  fur- 
ther. 

Vincent  was,  of  course,  in  a  dangerous  place  and  bound 
to  exercise  care  to  prevent  injury ;  but  the  railroad  com- 
pany knew  he  or  some  of  his  fellows  would  be  there,  and 
it  was  also  obliged  to  exercise  the  utmost  care  to  avoid 
injuring  them.  He  had  a  right  to  assume  it  would  exer- 
cise that  care,  and  give  him  warning  of  the  approach  of 
trains,  and  cannot  be  held  guilty  of  contributory  negli- 
gence because  he  did  not  anticipate  a  neglect  of  duty 
upon  its  part :  Wagner  v.  Phila.  Rapid  Transit  Co.,  252 
Pa.  354. 

We  have  also  repeatedly  said  one  placed  in  imminent 
peril  by  the  negligence  of  another,  is  not  chargeable  with 
contributory  negligence  because  he  does  not  select  the 
best  course  to  escape  the  threatened  injury:  Shaffer  v. 
Beaver  Valley  Traction  Co.,  229  Pa.  533;  Smith  v. 
Standard  Steel  Car  Co.,  262  Pa.  550,  555.    Being  com- 


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KELLY,  Appellants,  v.  PBNNA.  B.  R.  CO.  481 

1919.]  Opinion  of  the  Court, 

pelled  to  act  quickly  as  a  result  of  defendant's  negligence, 
he  cannot  be  punished  because  he  did  not  escape.  This 
is  exactly  Vincent's  position  in  the  present  case;  the 
train  was  upon  him  before  he  had  a  chance  to  get  out  of 
its  way,  and  it  is  for  the  jury  to  say  whether  or  not  he 
did  everything  reasonably  required  of  him,  in  view  of 
the  situation  in  which  defendant's  negligence  had  placed 
him,  and  the  brief  time  in  which  he  had  to  both  decide 
and  act. 

The  judgment  of  nonsuit  is  reversed  and  a  procedendo 
awarded. 


International  Forge  Co.  v.  Paul  S.  Beeves  &  Co., 
Inc.,  Appellant. 

Practice,  Supreme  Court — Appeals — Assignments  of  error— Jfo- 
tion  for  judgment  n.  o.  v. — Withdrawal  of  motion — New  trial — Ver- 
dict excessive. 

1.  The  withdrawal  of  an  assignment  of  error  to  the  refusal  of  a 
motion  for  judgment  n.  o.  v.  is  an  admission  that  the  case  is  for 
the  jury. 

2.  The  appellate  court  will  not  reverse  a  judgment  on  a  verdict 
because  the  trial  court  refused  a  new  trial,  where  no  error  is  as- 
signed to  the  admission  or  rejection  of  testimony,  or  to  the  charge 
of  the  court,  and  the  only  reasons  assigned  for  a  new  trial  in  the 
court  below  were  that  the  verdict  was  against  the  law,  the  evi- 
dence, the  weight  of  the  evidence,  the  charge  of  the  court,  and  was 
excessive. 

Argued  March  25, 1919.  Appeal,  No.  261,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  3,  Philadelphia 
Co.,  June  T.,  1917,  No.  2525,  on  verdict  for  plaintiff  in 
case  of  International  Forge  Co.,  Inc.,  v.  Paul  S.  Beeves 
&  Co.,  Inc.  Before  Brown,  C.  J.,  Mosghziskbb,  Fbazbb, 
Walling,  Simpson  and  Ebphart,  JJ.   Affirmed. 

Assumpsit  to  recover  the  value  of  certain  lost  metal. 
Before  McMiChabl,  P.  J. 

Verdict  and  judgment  for  plaintiff  for  $2,146.35.  De- 
fendant appealed. 


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432  INTERNATIONAL  P.  CO.  v.  BEEVES  &  CO.,  Appel. 

Assignment  of  Errors — Opinion  of  the  Court.  [264  Pa. 
Errors  assigned  were  as  follows: 

1.  The  learned  trial  judge  erred  in  refusing  to  make 
absolute  defendant's  motion  for  judgment  non  obstante 
veredicto. 

2.  The  learned  trial  judge  erred  in  dismissing  defend- 
ant's motion  for  new  trial. 

Leo  MacFarland,  for  appellant. 

William  H.  Peace,  for  appellee. 

Per  Curiam,  April  21, 1919 : 

The  appellant  entered  into  a  written  contract  witH 
the  appellee  to  manufacture  castings  for  it  out  of  ma- 
terials to  be  furnished  by  it.  The  contract  provided  that 
the  appellant  should  "stand  all  metal  losses,"  and  this 
action  was  brought  to  recover  the  value  of  lost  metals 
furnished  to  it.  On  this  appeal  from  the  judgment  on 
the  verdict  in  favor  of  the  plaintiff  there  were  originally 
two  assignments  of  error,  the  first  to  the  refusal  of  the 
motion  for  judgment  non  obstante  veredicto,  and' the 
second  to  the  dismissal  of  the  rule  for  a  new  trial.  The 
first  was  withdrawn,  and  its  withdrawal  was  an  admission 
that  the  case  was  for  the  jury.  The  reasons  assigned  in 
the  court  below  in  asking  for  a  new  trial  were :  "1.  The 
verdict  was  against  the  law.  2.  The  verdict  was  against 
the  evidence.  3.  The  verdict  was  against  the  weight  of 
the  evidence.  4.  The  verdict  was  against  the  charge  of 
the  court.  5.  The  verdict  was  excessive."  No  complaint 
was  made  below,  and  none  is  made  here,  of  the  admission 
or  rejection  of  testimony  or  of  the  charge  of  the  court, 
and  there  is,  therefore,  no  reason  why  the  case  should 
go  to  a  second  jury. 

Judgment  affirmed. 


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PENNA.  CO.  FOB  INS.  ON  L.  &  G.  A.  ACCOUNT.  433 
1919.]  Syllabus— Arguments. 

Pennsylvania  Company  for  Insurances  on  Lives  & 
Granting  Annuities'  Account. 

TFtHs— Deed*— Power— Execution  of  power— Intention— Parties 
—Equiiy—Act  of  June  k,  1879,  P.  L.  88. 

1.  Under  the  Act  of  June  4, 1879,  P.  L.  88,  a  power  contained  in 
a  deed  is  executed  by  a  will  of  earlier  date  than  the  deed,  unless  a 
contrary  intention  appears  by  the  will. 

2.  Under  the  law  as  it  existed  before  the  passage  of  that  act  the 
question  as  to  whether  or  not  a  will  was  an  execution  of  a  power 
of  appointment  was  one  of  intention  to  be  gathered  from  the  lan- 
guage of  the  will  itself,  and  unless  it  referred  either  to  the  power, 
or  the  property  the  subject  of  the  power,  or  it  would  have  no  oper- 
ation except  as  an  execution  of  the  power,  the  will  would  not  be 
treated  as  an  execution  thereof.  On  the  other  hand  under  the  act 
the  will  operates  as  an  execution  of  the  power  unless  a  contrary  in- 
tention appears  by  the  will  itself. 

3.  One  who  has  no  interest  in  a  fund,  cannot  be  heard  to  com- 
plain that  it  was  not  awarded  to  the  right  party. 

Argued  March  26,  1919.  Appeal,  No.  270,  Jan.  T., 
1919,  by  George  W.  Snare,  from  decree  of  C.  P.  No.  3,  Phil- 
adelphia Co.,  Sept.  T.,  1917,  No.  1595,  dismissing  excep- 
tions to  report  of  auditor  In  re  The  Pennsylvania  Com- 
pany for  Insurances  on  Lives  and  Granting  Annuities, 
Trustee  for  Sarah  E.  Snare,  under  deed  of  trust  by  Deb- 
orah A.  Gay,  dated  June  25, 1908.  Before  Moschzisker, 
Frazer,  Walling,  Simpson  and  Ebphart,  JJ.  Affirmed. 

Exceptions  to  report  of  Warren  C.  Graham,  Esq.,  audi- 
tor. 

The  court  dismissed  the  exceptions.  George  W.  Snare 
appealed. 

Errors  assigned  were  in  dismissing  exceptions  to  the 
auditor's  report. 

W.  B.  Linn,  with  him  J.  Reck  Ouches  and  E.  B.  Gill, 
for  appellant. — The  will  of  Sarah  E.  Snare,  executed 
many  years  before  the  execution  of  the  deed  of  trust  by 

Vol.  oclxiv— 28 

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434  PBNNA.  CO.  FOR  INS.  ON  L.  &  G.  A.  ACCOUNT. 

Arguments — Opinion  of  the  Court.  [264  Pa. 

Deborah  A.  Gay,  and  never  republished,  is  not  an  exer- 
cise of  the  power  of  appointment  given  to  Mrs.  Snare 
under  the  deed  of  trust :  Dunn  &  Biddle's  App.,  85  Pa. 
94;  Quinn's  Est,  144  Pa.  444;  Dallett  v.  Taggert,  223 
Pa.  180. 

Assuming  that  a  power  not  in  existence  when  a  will  is 
made  may  still  be  held  to  have  been  exercised  by  a  will 
subsequently  made,  in  virtue  of  the  Act  of  1879,  it  is  still 
a  fact  in  this  case  that  testatrix  made  no  express  appoint- 
ment in  favor  of  creditors  and  the  circumstances  sur- 
rounding her  show  that  she  did  not  intend  by  the  words 
of  the  will  to  have  such  an  appointment  implied :  Hud- 
dy's  Est.,  236  Pa.  276;  Cox.  v.  Dickson,  256  Pa.  510. 

M.  B.  Saul,  of  Prichard,  Said,  Bayard  <&  Evans,  for 
appellee. — The  will  of  Sarah  E.  Snare  operated  as  an 
exercise  of  her  power  of  appointment  under  the  deed  of 
trust  by  virtue  of  the  Act  of  June  4,  1879  (P.  L.  88) : 
South's  Est.,  248  Pa.  165;  Stake's  Est.,  15  Pa.  Dist.  Eep. 
104;  Harvey's  Est,  21  Pa.  Dist.  Rep.  170. 

Opinion  by  Mr.  Justice  Simpson,  April  21, 1919 : 
By  her  will  dated  March  5,  1890,  Sarah  E.  Snare  di- 
rected all  her  just  debts  and  funeral  expenses  to  be  paid, 
and  gave  the  rest,  residue  and  remainder  of  her  estate  to 
her  husband,  John  T.  Snare,  absolutely,  but  in  case  she 
survived  him  to  any  children  or  issue  of  children  who 
should  be  living  at  the  time  of  her  decease. 

On  June  25, 1908,  Deborah  A.  Gay  executed  a  deed  of 
trust  to  The  Pennsylvania  Company  for  Insurance  on 
Lives  and  Granting  Annuities,  directing  the  income  of 
the  property  thereby  transferred,  to  be  paid  to  her 
daughter,  Sarah  E.  Snare,  during  her  natural  life,  and 
upon  her  decease  the  principal  to  be  conveyed  "to  such 
person  or  persons  and  for  such  estate  or  estates  as  the 
said  Sarah  E.  Snare  shall  T)y  her  last  will  and  testament 
or  instrument  in  writing  in  the  nature  thereof  duly  exe- 
cuted under  the  laws  of  the  State  of  Pennsylvania  select 


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PBNNA.  00.  FOR  INS.  ON  L.  &  G.  A.  ACCOUNT.  435 
1919.]  Opinion  of  the  Court. 

or  appoint,"  and  in  default  of  such  appointment  "to  any 
child  or  children  of  the  said  Sarah  E.  Snare  (if  one, 
solely;  if  more  than  one  in  equal  parts,  share  and  share 
alike)  the  issue  of  any  deceased  child  or  children  taking 
the  same  share  that  his  or  her  parent  would  have  taken 
if  living."  There  were  spendthrift  and  separate  use 
trusts  as  to  the  gift  of  the  income,  but  the  power  of  ap- 
pointment of  the  principal  was  general  and  unhampered. 

John  T.  Snare  predeceased  his  wife,  who  died  Janu- 
ary 28, 1917,  leaving  as  her  only  child  George  W.  Snare, 
the  appellant,  and  no  issue  of  deceased  children.  Her 
will  as  above  set  forth  was  duly  probated  by  the  register 
of  wills  of  Philadelphia  County.  The  trustee  thereupon 
filed  its  account,  which  embraced  personal  property  only, 
and  appellant,  George  W.  Snare,  claimed  the  balance 
appearing  thereby  upon  two  grounds :  1st.  The  will  of 
his  mother  having  been  executed  prior  to  the  deed  of 
trust  cannot  be  considered  as  an  execution  of  the  power 
contained  therein ;  and  2d.  Even  if  it  be  held  otherwise, 
a  proper  construction  of  the  will,  as  an  execution  of  the 
power,  would  give  him  the  property.  The  auditor  and 
the  court  below  decided  both  those  contentions  against 
appellant,  and  inasmuch  as  it  was  admitted  that  under 
the  deed  of  trust  Mrs.  Snare  had  the  power  to  appoint 
for  the  payment  of  her  debts,  and  the  whole  balance  of 
the  fund,  together  with  Mrs.  Snare's  individual  estate, 
will  be  insufficient  for  their  payment,  awarded  the  bal- 
ance shown  by  the  audit  of  the  trustees'  account,  to  the 
administrator  c.  t.  a.  of  her  estate,  whereupon  this  ap- 
peal was  taken.  We  have,  therefore,  two  plain  legal 
questions,  interesting  and  important  not  only  to  the 
parties  to  this  controversy,  but  to  all  others  who  are  or 
may  be  in  like  situation. 

By  Section  1  of  the  Act  of  June  4, 1879,  P.  L.  88,  it  is 
provided :  "That  every  will  shall  be  construed  with  ref- 
erence to  the  real  estate  and  personal  estate  comprised 
in  it,  to  speak  and  take  effect  as  if  it  had  been  executed 


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436  PENNA.  CO.  FOR  INS.  ON  L.  &  G.  A.  ACCOUNT. 

Opinion  of  the  Court.  [264  Pa. 

immediately  before  the  death  of  the  testator,  unless  a 
contrary  intention  shall  appear  by  the  will."  No  such 
contrary  intention  appears  by  Mrs.  Snare's  will. 

Section  3  of  the  same  act  provides,  inter  alia:  "A  be- 
quest of  the  personal  estate  of  the  testator,  or  any  be- 
quest of  personal  property  described  in  a  general  manner, 
shall  be  construed  to  include  any  personal  estate,  or  any 
personal  estate  to  which  such  description  shall  extend, 
as  the  case  may  be,  which  he  may  have  power  to  appoint 
in  any  manner  he  may  think  proper,  and  shall  operate 
as  an  execution  of  such  power,  unless  a  contrary  intention 
shall  appear  by  the  will."  No  such  contrary  intention 
appears  by  Mrs.  Snare's  will.  \ 

The  will,  taken  in  connection  with  the  above-quoted 
provisions  of  the  Act  of  1879,  must  be  construed,  therefore, 
as  if  made  after  the  deed  of  trust,  and  as  if  it  read  sub- 
stantially as  follows:  "Out  of  my  own  estate  and  the 
estate  derived  under  the  deed  of  trust  executed  by  my 
mother  Deborah  A.  Gay  over  which  I  have  the  power  of 
appointment,  'I  direct  that  my  just  debts  and  funeral  ex- 
penses be  paid/  and  'all  the  rest,  residue  and  remainder9 
thereof  'I  give,  devise  and  bequeath'  to  my  son  George  W. 
Snare."  As  thus  stated  it  is  clear,  notwithstanding 
the  very  able  argument  of  appellant's  counsel,  appellant 
can  get  nothing  until  his  mother's  debts  are  paid ;  and  we 
need  only  inquire  whether  or  not  our  prior  decisions  com- 
pel us,  under  the  doctrine  of  stare  decisis,  to  reach  an  op- 
posite conclusion. 

In  Dunn  and  Biddle's  App.,  85  Pa.  94,  strongly  relied 
on  by  appellant,  both  the  will  and  the  deed  of  trust  were 
executed  before  the  Act  of  1879,  the  former  being  dated 
June  18,  1869,  and  the  latter  June  10,  1875;  but  it  is 
averred  the  same  rule  must  be  applied  here  as  there,  be- 
cause at  common  law,  as  under  the  Act  of  1879,  a  will  of 
personalty  was  to  "be  construed  as  if  executed  im- 
mediately before  the  death  of  the  testator  unless  the 
contrary  intention  appears."    In  that  case  both  person- 


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PENNA.  CO.  FOE  INS.  ON  L.  &  G.  A.  ACCOUNT.  436a 
1919.]  Opinion  of  the  Court 

alty  and  realty  were  involved,  and  no  distinction  be- 
tween the  two  classes  of  property  was  adverted  to  by 
counsel,  auditor  or  either  court,  because  the  case  was 
decided  upon  a  principal  applicable  to  both.  At  that 
time  the  rule  was  that  the  question  was  one  of  intention 
to  be  gathered  from  the  language  of  the  will,  and  unless 
it  either  referred  to  the  power,  or  the  property  which  was 
the  subject  of  power,  or  it  would  have  no  operation  ex- 
cept as  an  execution  of  the  power,  the  will  would  not  be 
treated  as  an  execution  thereof :  Wetherill  v.  Wetherill, 
18  Pa.  265, 271 ;  Bingham's  App.,  64  Pa.  345, 349 ;  Neill's 
Est.,  222  Pa.  142,  145.  As  none  of  those  elements  ap- 
peared in  the  will  in  that  case,  it  was  held  not  to  operate 
as  an  execution  of  the  power.  The  Act  of  1879,  however, 
changes  the  rule  of  law  so  far  as  wills  are  concerned,  and 
instead  of  a  will  being  required  to  show  on  its  face  an 
intention  to  execute  the  power,  the  act  asserts  it  as  a 
matter  of  law,  "unless  a  contrary  intention  shall  appear 
by  the  will."  In  the  present  instance  no  such  "contrary 
intention"  appears  thereby. 

Neal's  App.,  104  Pa.  214 ;  Quin's  Est.,  144  Pa.  444,  and 
Dallett  v.  Taggart,  223  Pa.  180,  were  all  decided  upon  the 
ground  that  as  a  separate  use  trust  cannot  be  created 
unless  the  donee  is  either  married  or  in  immediate  con- 
templation of  marriage  at  the  time  the  trust  is  created, 
the  question  in  such  cases  is  one  of  power  and  not  of 
construction,  and  hence  the  Act  of  1879  does  not  apply. 
In  Edwards's  Est.,  254  Pa.  159,  it  was  held  the  Act  of 
1879  did  not  apply  because  a  "contrary  intention"  ap- 
peared from  the  will,  and  hence  a  large  loan  made  after 
the  date  of  the  will  was  held  not  covered  by  a  clause  "I 
leave  no  large  debts  and  any  indebtedness  to  me  is  hereby 
cancelled."  As  shown  by  the  opinion  the  same  conclu- 
sion would  have  been  reached  had  the  loan  been  made  be- 
fore the  date  of  the  will. 

Peterson's  Est.,  242  Pa.  330,  so  far  as  it  applies  at  all, 
is  against  appellant,    There  testatrix  had  an  estate  of 


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436b  PBNNA.  CO.  FOR  INS.  ON  L.  &  G.  A.  ACCOUNT. 

Opinion  of  the  Court.  [264  Pa. 

her  awn,  and  had  the  power  of  appointment  over  certain 
property  held  in  trust.  By  her  will  she  provided  "Where- 
as I  am  the  owner  of  certain  property  and  estate  which 
I  hold  in  my  own  right  free  from  any  trust,  now  I,  hereby 
give,  devise  and  bequeath  the  same  to  my  husband  Arthur 
Peterson,  absolutely."  Afterwards  she  became  possessed 
of  a  considerable  estate,  accruing  as  income  from  the 
property  held  in  trust,  which  accrued  estate  was  trans- 
ferred to  the  executors  and  trustees  of  the  will  to  be  held 
by  them  until  it  could  be  disposed  of  in  conjunction  with 
the  trust  property.  It  was  held  this  after-acquired  prop- 
erty passed  under  her  will. 

The  above  are  the  only  authorities  relied  on  by  appel- 
lant on  his  first  contention ;  they  do  not  prevent  our  ap- 
plying the  Act  of  1879,  and  we,  therefore,  decide  the  first 
point  against  him. 

Upon  the  second  point  also  no  decision  has  been  cited 
to  us,  nor  have  we  found  any,  which  sustains  appellant's 
view.  In  Dunglison's  Est.,  201  Pa.  592,  it  was  simply 
held  that  the  sums  embezzled  by  a  defaulting  trustee 
could  not  be  charged  against  an  estate  over  which  he  had, 
but  had  not  exercised,  power  of  appointment.  In  Terp- 
pe,s  Est.,  224  Pa.  482,  there  was  a  direction  to  pay  debts, 
but  we  held  the  will  showed  it  did  not  apply  to  the  prop- 
erty over  which  testatrix  had  a  power  of  appointment. 
We  said  (page  487) :  "In  exercising  the  power  and  de- 
vising the  property  she  did  not  charge  it  with  the  pay- 
ment of  her  debts,  and  it  is  therefore  not  liable  for  their 

payment Our  construction  of  the  11th  clause  of  the 

will  of  the  testatrix,  guided  by  her  intention  as  we  there 
read  it,  is  that  she  gave  the  residue  of  her  own  estate 
to  Frederick  William  Terppe,  and,  exercising  her  power 
of  appointment,  devised  the  real  estate  of  her  husband 
to  the  same  devisee,  subject  only  to  the  payment  of  cer- 
tain legacies  and  of  encumbrances  which  she  had  not 
placed  upon  it.  The  court,  therefore,  was  without  juris- 
diction to  direct  this  property  to  be  sold  for  the  payment 


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PENNA.  CO.  FOR  INS.  ON  L.  &  G.  A.  ACCOUNT.  436c 
1919.]  Opinion  of  the  Court 
of  her  debts."  In  Huddy's  Est.,  236  Pa.  276  (page  280), 
we  said :  "She  did  not  direct  the  payment  of  her  debts, 
nor  did  she  expressly  exercise  or  refer  to  the  power  given 
her  by  the  will  of  Emma  Huddy It  is  not  an  in- 
stance where  the  donee  of  the  power  either  expressly  or 
by  implication  appointed  the  fund  for  the  payment  of 
her  debts,  nor  did  she  so  blend  the  fund  with  her  own 
assets  that  it  is  impracticable  to  pay  directly  to  her  ap- 
pointees." And  in  Cox  v.  Dickson,  256  Pa.  510,  the  ques- 
tion decided  was  that  the  gift  made  by  the  donee  must  be 
considered  as  haying  been  made  at  the  time  of  the  crea- 
tion of  the  power  in  order  to  determine  whether  or  not 
the  statute  against  perpetuities  had  been  violated. 

In  the  present  case  it  is  admitted  Mrs.  Snare  could 
have  appointed  the  trust  property  for  payment  of  her 
debts,  the  power  being  general,  and  so  we  held  in  South's 
Est.,  248  Pa.  165 ;  and  the  sole  question  on  this  branch 
of  the  case  is  did  she  do  so?  The  question  of  the  relative 
dates  of  the  will  and  of  the  deed  of  trust  being  out  of 
the  way,  admittedly  the  will  is  an  execution  of  the  power, 
and  the  rights  of  appellant  and  appellee  must  be  deter- 
mined by  a  construction  of  its  provisions.  Upon  this 
point  we  are  left  in  no  doubt.  Thereby  it  appears  tes- 
tatrix's debts  must  be  paid  in  any  event,  and  appellant  is 
given  nothing  until  they  are  in  fact  paid.  Testatrix's 
intention  is  therefore  clear,  and  the  second  point  must 
also  be  decided  against  appellant. 

It  is  not  necessary  to  decide  whether  or  not  appellant 
is  correct  in  his  final  contention  that  "the  fund  should 
not  in  any  event  have  been  awarded  to  Mrs.  Snare's  ad- 
ministrator," but  should  have  been  awarded  directly  to 
those  entitled  thereto.  As  already  stated,  the  joint  funds 
are  not  sufficient  to  pay  Mrs.  Snare's  debts,  and  hence 
appellant  has  no  interest  entitling  him  to  complain  of  the 
person  to  whom  the  award  is  made.  If  the  question  was 
one  now  to  be  decided  we  would  be  inclined  to  agree  with 
what  was  said  by  Judge  Pbnbosb  in  Stokes's  Est.,  20  W. 


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436d  PENNA.  CO.  FOB  INS.  ON  L.  &  G.  A.  ACCOUNT. 

Opinion  of  the  Court  [264  Pa. 

N.  0.  48 :  "The  estate  passing  under  the  power  has  been 
blended  with  that  belonging  to  the  donee  in  his  own  right 

this  implies  a  previous  administration  of  the  fund, 

and  the  payment  thereout  of  debts,  etc.,  [and  hence] 
the  award  must  be  to  the  executrix  of  the  will  of  the 
donee  and  not  directly  to  the  ultimate  appointee" ;  as  in 
Huddy's  Est.,  supra,  we  intimated  should  be  done  under 
like  circumstances.  This  would  be  the  best  way  to  as- 
sure the  carrying  out  of  testatrix's  wishes,  but,  as  stated 
above,  it  is  not  necessary  to  decide  the  question  on  this 
appeal. 

The  (decree  of  the  court  below  is  affirmed,  and  the  ap- 
peal dismissed  at  the  costs  of  appellant 


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BERBERICH'S  ESTATE.  437 

1919.]  Syllabus — Opinion  of  Court  below. 

Berberich's  Estate. 

Bailment— Brokers— Illegal  sale  of  stocks  without  notice— Moos* 
ure  of  damages — Conversion. 

Where  stock  brokers  illegally  sell  stock  carried  for  a  customer 
on  a  margin  without  notice,  they  are  liable  for  the  highest  price  of 
the  stock  between  the  date  of  the  conversion  and  that  of  the  trial 
at  which  the  loss  is  to  be  determined. 

Argued  March  26,  1919.  Appeal,  No.  271,  Jan.  T., 
1919,  by  William  Hastie  Smith,  Jr.,  and  John  G.  Brad- 
ley, trading  as  William  Hastie  Smith,  Jr.,  &  Company, 
from  decree  of  O.  C.  Philadelphia  Co.,  Oct.  T.,  1915,  No. 
294,  dismissing  exceptions  to  adjudication  in  Estate  of 
Herman  Berberich,  deceased.  Before  Moschziskhb,  Fra- 
zbb,  Walling,  Simpson  and  Kbphaet,  J  J.  Affirmed. 

Exceptions  to  adjudication. 

Obst,  J.,  filed  the  following  opinion : 

The  facts  are  fully  stated  in  the  opinion  previously 
filed  in  25  D.  R.  449,  in  the  opinion  of  the  Supreme  Court, 
257  Pa.  181,  and  in  second  adjudication  of  the  auditing 
judge  now  before  us  for  review.  The  only  question  con- 
cerns the  measure  of  damages.  It  is  settled  by  the  Su- 
preme Court  that  the  claimants  illegally  converted  the 
stock  which  they  were  carrying  for  the  decedent,  and 
the  auditing  judge  applied  the  rule  that  they  were  liable 
for  the  highest  price  of  the  stock  between  the  date  of  the 
conversion  and  that  of  the  trial,  the  law  being  so  stated 
in  terms  in  Learock  v.  Paxson,  208  Pa.  602,  and  Sproul  v. 
Sloan,  241  Pa.  284.  The  learned  counsel  for  the  excep- 
tant argued  that  this  rule  applies  only  when  there  is  a 
breach  of  trust,  such  as  existed  in  Bank  of  Montgomery 
v.  Beese,  26  Pa.  143,  or  where  fraud  has  been  practiced, 
but  we  think  the  decisions  apply  to  the  facts  of  this  case, 
and  the  cases  relied  on  by  counsel  are  distinguishable. 
In  Huntingdon,  etc.,  R.  R.  v.  English,  86  Pa.  247,  there 


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438  BERBERICH'S  ESTATE. 

Opinion  of  Court  below..  [264  Pa. 

was  a  distinct  contract  to  deliver  the  stock  on  a  day  cer- 
tain so  that  the  parties  had  by  their  agreement,  as  the  Su- 
preme Court  said,  settled  from  the  beginning  the  com- 
pensation due  in  case  of  a  failure  to  return  the  stock  at 
the  time  fixed;  and  so  in  North  v.  Phillips,  89  Pa.  250, 
the  contract  between  the  broker  and  the  customer  pro- 
vided that  the  stocks  should  be  carried  to  a  definite  day 
before  which  the  conversion  took  place. 

Judge  Thayer,  in  Pennsylvania  Co.  v.  Phila.,  G.  &  N. 
R.  R.,  1  D.  R.  301  (affirmed  by  the  Supreme  Court  in 
153  Pa.  160,  where  however  this  question  was  not  con- 
sidered), stated  the  law  to  be  that  in  all  cases  not  involv- 
ing an  actually  wrongful  conversion  or  breach  of  trust 
the  old  and  well-established  rule  still  prevails,  that  the 
value  of  the  stock  at  the  time  of  the  technical  conversion 
with  interest  is  the  true  measure  of  damages. 

This  was  said  however  in  a  case  where  the  conversion 
was  innocently  made  through  reliance  on  a  forged  power 
of  attorney,  but  in  the  present  case  the  Supreme  Court 
has  definitely  found  that  the  claimants  illegally  converted 
the  stock,  and  approved  what  was  said  in  Ritter  v.  Cush- 
man,  35  How.  Pr.  284,  that  the  sale  of  pledged  stock  with- 
out notice  is,  in  the  absence  of  a  special  agreement  that 
authorized  it,  a  breach  of  good  faith  and  common  honesty. 

If  the  theory  of  counsel  is  correct  that  a  pledgee  or 
broker  who  is  carrying  stock  on  margin  for  a  customer 
and  who  sells  the  pledged  stock  without  notice  is  liable 
only  for  the  market  value  of  the  stock  at  the  time  of  the 
conversion  with  interest,  the  customer's  remedy  would 
certainly  be  illusory  for  the  broker  could  convert  when- 
ever he  pleased.  Whatever  may  be  the  law  in  other  juris- 
dictions, we  are  of  opinion  that  the  ruling  of  the  auditing 
judge  is  in  accordance  with  the  most  recent  decisions  of 
the  Supreme  Court  of  this  State. 

The  exceptions  are  dismissed  and  the  adjudication  con- 
firmed absolutely. 

Wm.  Hastie  Smith  et  al.,  claimants,  appealed 


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BEBBEBICH'S  ESTATE.  439 

1919.]       Assignment  of  Error — Opinion  of  the  Court. 
Error  assigned  was  decree  dismissing  the  exceptions. 

Frederick  J.  Knows,  for  appellants. 

James  J.  Breen,  with  him  James  B.  McOrane,  for  ap- 
pellee, cited:  Bank  of  Montgomery  v.  Reese,  26  Pa.  143; 
Learock  v.  Paxson,  208  Pa.  602;  Sproul  v.  Sloan,  241  Pa. 

284. 

Pbb  Curiam,  April  21, 1919 : 

This  case  is  adequately  and  correctly  disposed  of  in 
the  opinion  of  Judge  Gbst,  speaking  for  the  court  below; 
we  affirm  thereon,  at  cost  of  appellants. 


Bergman  v.  Straus  et  al.,  Appellants. 

Appeals  —  Interlocutory  orders  —  Foreign  attachment  —  Act  of 
April  26s  1917.  P.  L.  102. 

1.  Interlocutory  orders  are  not  the  subject  of  review  until  after 
final  judgment,  unless  expressly  made  so  by  statute. 

2.  Quaere  does  the  Act  of  April  26, 1917,  P.  L.  102,  allowing  an 
appeal  from  an  order  quashing  or  refusing  to  quash  a  writ  of 
foreign  attachment,  apply  to  an  order  refusing  to  quash  the  attach- 
ment itself. 

Amendments — Benefits  of  an  improper  allowance — Estoppel. 

3.  One  who  takes  a  benefit  under  an  amendment  cannot  after* 
wards  complain  that  the  amendment  was  improperly  allowed. 

Foreign  attachment — Amendments — Parties — Practice,  C.  P. — 
Dissolution— Act  of  June  IS,  1886,  P.  L.  588. 

4.  One  who  is  made  a  defendant  by  amendment  and  as  such 
enters  security  and  dissolves  a  foreign  attachment  under  Section 
62  of  the  Act  of  June  13, 1836,  P.  L.  583,  allowing  defendants  so  to 
do,  cannot  afterwards  complain  that  the  amendment  was  improperly 
allowed. 

5.  An  objection  to  a  writ  of  foreign  attachment  that  there  is  no 
such  corporation  defendant  as  is  named  in  the  writ,  will  not  be  sus- 
tained if  the  party  making  it  has  been  substituted  as  defendant  in 
place  of  the  corporation,  and  has  taken  advantage  of  a  right  given 
only  to  defendants. 

6.  A  foreign  attachment  which  has  been  dissolved  by  the  entry 
of  security  has  ceased  to  exist,  and  cannot  thereafter  be  quashed. 


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440         BERGMAN  v.  STRAUS  et  aL,  Appellants. 

Syllabus— Arguments.  [264  Pa. 

7.  When  a  defendant  enters  security  and  dissolves  a  foreign  at- 
tachment the  action  must  proceed  in  due  course  in  like  manner  as 
if"  commenced  by  a  wriUof  capias  ad  respondendum,  and  the  writ 
cannot  thereafter  be  quashed. 

Argued  Marqjh  26,  1919.  Appeal,  No.  294,  Jan.  T., 
1919,  by  defendants,  from  orders  of  C.  P.  No.  2,  Philadel- 
phia Co.,  Dec.  T.,  1918,  No.  188,  allowing  amendment  and 
refusing  to  quash  a  writ  of  foreign  attachment,  in  case 
of  A.  Bergman,  trading  as  Bergman  Knitting  Mills,  v. 
Lionel  F.  Straus  and  Sidney  Weinburg,  trading  as  F. 
A.  Straus  &  Company.  Before  Moschziskkb,  Fbazbb, 
Walling,  Simpson  and  Kbphabt,  JJ.   Affirmed. 

Rule  to  amend. 

Rule  to  quash  writ  of  foreign  attachment. 
The  court  allowed  the  amendment  and  refused  to 
quash  the  attachment.    Defendants  appealed. 

Errors  assigned  were  thie  two  orders  of  the  court 

Julius  O.  Levi,  for  appellants. — It  is  the  contention  of 
the  appellants  that  no  amendment,  as  sought  by  the  plain- 
tiff, should  have  been  allowed :  White  Co.  v.  Fayette  Auto 
Co.,  43  Pa.  Superior  Ct.  532;  Girardi  v.  Laquin  Lumber 
Co.,  232  Pa.  1 ;  Wright  v.  Cooper  Co.,  206  Pa.  274 ;  Tonge 
v.  Item  Pub.  Co.,  244  Pa.  418;  McGinnis  v.  Valvoline  Oil 
Works,  251  Pa.  407. 

Therefore,  as  it  appeared  of  record  that  the  proceed- 
ings were  improperly  brought,  and  the  property  attached 
did  not  belong  to  the  corporation  of  F.  A.  Straus  &  Com- 
pany, which  was  designated  as  the  defendant,  the  court 
below  should  have  quashed  the  attachment  upon  the 
authority  of  the  cases  of  Nicoll  v.  McCaffrey,  1  Pa.  Su- 
perior Ct.  187;  Turner  v.  Larkin,  12  Pa.  Superior  Ct. 
284 ;  Mindlin  v.  Saxony  Spinning  Co.,  261  Pa.  354. 

Harry  Feliw,  with  him  Bernard  A.  Illoway  and  'Abra- 
ham  Friedman,    for    appellees. — Statutes    permitting 


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BEBGMAN  v.  STRAUS  et  aL,  Appellant*.         441 
1919.]  Arguments — Opinion  of  the  Court, 

amendments  are  liberally  construed  to  give  effect  to  their 
intent  to  prevent  a  defeat  of  justice  through  a  mere  mis- 
take as  to  the  parties  or  form  of  action. 

Consequently,  if  the  proper  party  is  actually  in  court 
and  the  effect  of  the  amendment  is  merely  to  correct  the 
name  under  which  he  has  been  sued,  an  amendment 
should  be  allowed :  Wright  v.  Eureka  T.  Copper  Co.,  206 
Pa.  274;  McGinnis  v.  Valvoline  Oil  Works,  251  Pa.  407; 
Rushland  v.  Alexander,  19  Pa.  C.  C.  R.  577;  Jeannette 
Borough  v.  Roehm,  9  Pa.  Superior  Ct.  33;  Jeannette 
Borough  v.  Roehm,  197  Pa.  230;  Wright  v.  Millikan, 
152  Pa.  511;  Schollenberger  v.  Sheldonridge,  49  Pa.  83; 
Com.  ex  rel.  v.  Dillon,  81  Pa.  41 ;  Coyne  v.  Lakeside  Elec- 
tric Ry.  Co.,  227  Pa.  496. 

Opinion  by  Mb.  Justice  Simpson,  April  21, 1919: 
Plaintiffs  issued  a  writ  of  foreign  attachment  against 
P.  A.  Straus  &  Company,  a  corporation,  which  was  re- 
turned attached  as  commanded,  summoned  the  garnishee 
and  nihil  habet  as  to  defendant;  appellants  filed  a  pe- 
tition averring  there  was  no  such  corporation,  but  they 
composed  a  partnership  of  that  name,  and  for  that  reason 
only  moved  to  quash  the  attachment ;  plaintiffs  moved  for 
leave  to  amend  by  substituting  appellants  trading  as  F. 
A.  Straus  &  Co.,  as  defendants;  the  court  below  allowed 
the  amendment,  which  was  duly  made,  and  discharged 
the  motion  to  quash ;  appellants  thereupon  entered  se- 
curity and  dissolved  the  attachment,  and  two  days  later 
prosecuted  the  present  appeal  assigning  as  errors  that 
the  court  below  erred  in  allowing  the  amendment,  and  in 
refusing  to  quash  the  attachment. 

As  the  suit  is  still  pending  and  undetermined  in  the 
court  below,  and  no  final  judgment  has  been  entered 
therein,  the  orders  appealed  from  are  interlocutory,  and 
cannot  be  reviewed  at  this  time  (Richardson  v.  Rich- 
ardson, 193  Pa.  279;  Bellah  v.  Poole,  202  Pa.  71),  unless 
the  Act  of  April  26,  1917,  P.  L.  102,  changes  the  prac- 
tice in  so  far  as  the  motion  to  quash  is  concerned.    By 


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442         BBBGMAN  v.  STRAUS  et  aL,  Appellants. 

Opinion  of  the  Court  [864  Pa. 

its  terms,  however,  it  only  relates  to  quashing  or  refus- 
ing to  quash  a  writ  of  foreign  attachment,  whereas  the 
motion  in  this  case  was  not  to  quash  the  writ  but  the  at- 
tachment, which  latter  may  be  overthrown  for  reasons 
wholly  inapplicable  to  the  former,  as,  for  instance,  where 
the  service  of  the  writ  is  improper:  Penna.  B.  R.  Com- 
pany v.  Pennock,  51  Pa.  244 ;  or  there  is  a  lack  of  certain- 
ty in  the  affidavit  of  cause  of  action :  Mindlin  v.  Saxony 
Spinning  Co.,  261  Pa.  354.  It  is  not  necessary,  however, 
to  pursue  this  matter  further,  for  the  same  result  would 
be  reached  if  both  matters  were  now  reviewable. 

When  in  accordance  with  the  allowance  of  the  court 
below  the  record  was  amended  to  make  appellants  par- 
ties defendant,  they  had  the  option  of  assenting  to  that 
action  and  acting  under  it,  or  of  refusing  to  recognize  it 
as  valid,  but  they  could  not  do  both.  In  the  present  in- 
stance they  did  the  former,  for  they  entered  security  and 
dissolved  the  attachment :  Sec.  62,  Act  June  13, 1836,  P. 
L.  583.  It  was  only  after  they  had  obtained  this  bene- 
fit as  defendants,  they  took  the  appeal  from  the  order 
making  them  so.  They  were  then  estopped  by  the  record 
from  complaining  thereof.  So  also, — even  if  we  assume 
appellants  had  a  standing  to  move  to  quash  an  attachment 
not  issued  against  them  personally, — having  affirmed  the 
action  of  the  court  below  in  making  them  defendants,  they 
no  longer  had  a  basis  for  their  only  objection  to  the  at- 
tachment, namely,  that  there  was  no  such  corporation 
as  was  therein  named  as  defendant.  The  objection  fell  also 
when  they  dissolved  the  attachment,  for  that  which  had 
ceased  to  exist  could  not  be  quashed ;  and  for  the  further 
reason  that  by  Section  62  of  the  Act  of  1836,  above  re- 
ferred to,  when  an  attachment  is  thus  dissolved  "the 
action  shall  proceed  in  due  course,  in  like  manner  as  if 
the  same  had  been  commenced  by  a  writ  of  capias  ad 
respondendum/'  the  bail  standing  in  the  place  of  the 
property  attached,  whereas  the  purpose  of  the  motion  to 
quash  is  to  end  the  proceedings  forever. 

The  orders  appealed  from  are  affirmed. 


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DB  BOUVIBR  v.  PENNA.  R.  R.  CO.,  Appellant.    443 

1919.]  Syllabus— Arguments. 


DeBouvier  v.  Pennsylvania  Railroad  Co., 
Appellant 

Negligence — Railroads — Passenger — Presumption  from  break  in 
defendant's  appliance — Evidence. 

1.  Where  a  passenger  on  a  train  is  hit  by  an  iron  washer,  coming 
through  a  window  and  injuring  him,  he  may  recover  a  verdict 
against  the  railroad  company,  where  he  testifies  that  the  washer 
came  from  an  engine  of  another  train,  marked  with  defendant's 
name,  going  in  the  opposite  direction  on  the  next  track,  and  the 
washer  is  identified  by  two  other  witnesses,  one,  the  conductor  of 
the  train,  as  being  the  type  used  on  the  engines  of  the  company. 

2.  Such  evidence  is  sufficient  to  sustain  a  finding  that  plaintiff's 
injury  resulted  from  a  break  in  an  appliance  connected  with  the 
operation  of  defendant's  railroad;  hence  the  question  of  negligence 
is  for  the  jury,  on  the  presumption  arising  from  the  break  in  de- 
fendant's appliance. 

Argued  March  26,  1919.  Appeal,  No.  299,  Jan.  T., 
1919,  by  defendant,  from  judgment  of  C.  P.  No.  1,  Phil- 
adelphia Co.,  June  T.,  1917,  No.  834,  on  verdict  for  plain- 
tiff in  case  of  Hamilton  DeBouvier  v.  Pennsylvania  Bail- 
road  Company.  Before  Mosohziskbb,  Frazbr,  Walling, 
Simpson  and  Kbphabt,  JJ.    Affirmed. 

Trespass  to  recover  damages  for  personal  injuries.  Be- 
fore Shoemaker,  J. 

Verdict  for  plaintiff  for  f 9,000  on  which  judgment  was 
entered  for  $6,000,  all  above  that  amount  having  been 
remitted.    Defendant  appealed. 

Error  assigned  was  in  entering  judgment  for  plaintiff 
on  the  verdict. 

Francis  B.  Biddle,  with  him  Sharswood  Brinton,  for 
appellant. 

Daniel  G.  Murphy,  with  him  Isaac  D.  Levy,  for  ap- 
pellee- 


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444    DE  BOUVIEB  v.  PENNA.  B.  B.  CO.,  Appellant 

Opinion  of  the  Court.  [264  Pa. 

Pub  Curiam,  April  21, 1919 : 

While  a  passenger  in  a  Pullman  car  attached  to  one 
of  defendant's  trains,  plaintiff  saw  an  iron  washer,  weigh- 
ing one  pound,  eleven  ounces,  come  from  the  engine  of 
another  train,  marked  with  defendant's  name,  going  in 
the  opposite  direction,  on  the  next  track;  this  washer 
crashed  through  the  window  at  which  plaintiff  was  sit- 
ting and  struck  him  a  violent  blow  in  the  back  of  the 
neck,  causing  serious  injuries.  He  sued  for  damages, 
alleging  negligence,  and  recovered  a  verdict,  upon  which 
judgment  was  entered.    Defendant  has  appealed. 

A  properly  qualified  witness  for  plaintiff  identified  the 
washer  as  being  part  of  a  certain  type  of  engine  owned 
by  defendant  company;  he  also  explained  that  washers 
of  this  character  would  fly  off  when  the  cotter  pins  which 
held  them  in  place  wore  away,  and  that  such  weariixg 
took  place  through  vibration. 

Defendant  produced  no  evidence  as  to  inspection,  or 
upon  any  other  point  in  the  case,  nor  did  it  deny  that  the 
washer  came  from  its  engine;  on  the  contrary,  the  con- 
ductor in*  charge  of  the  train  upon  which  plaintiff  was 
riding  testified  that  the  article  in  question,  produced  at 
the  trial,  was  the  property  of  his  employer. 

The  issues  involved  were  submitted  in  a  charge  which 
is  not  complained  of,  and  the  evidence  is  sufficient  to  sus- 
tain a  finding  that  plaintiff's  injury  resulted  from  a  break 
in  an  appliance  connected  with  the  operation  of  the  de- 
fendant railroad;  hence  the  question  of  negligence  was 
for  the  jury:  see  Pa.  R.  B.  Co.  v.  MacKinney,  124  Pa. 
462,  where  the  relevant  rules  of  law  are  discussed. 

Judgment  affirmed. 


Shimer,  Appellant,  v.  Aldine  Trust  Co.  et  al. 

Equity— Findings  of  fact— Review. 

The  findings  of  fact  by  a  chancellor,  which  involve  the  credi- 
bility of  witnesses  and  the  weight  to  be  given  their  testimony,  will 

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SHIMEB,  Appellant,  v.  ALDINE  TBUST  CO.    445 

1919.]  Syllabus — Opinion  of  the  Court. 

be  given  the  effect  of  a  verdict  of  a  jury,  and  they  will  not  be  dis- 
turbed, on  appeal,  where  there  is  testimony  to  support  them.  Even 
if  a  doubt  existed,  it  would  not  be  ground  for  reversal. 

Argued  March  26,  1919.  Appeal,  No.  302,  Jan.  T., 
1919,  by  plaintiff,  from  decree  of  C.  P.  No.  4,  Philadel- 
phia Co.,  March  T.,  1917,  No.  5281,  dismissing  bill  in 
equity  in  case  of  J.  N.  M.  Shimer  v.  Aldine  Trust  Com- 
pany and  Webster  King  Wetherill.  Before  Mosch- 
ziskbr,  Frazbr,  Walling,  Simpson  and  Ebphabt,  JJ. 
Affirmed. 

Bill  in  equity  for  retransfer  of  stock  and  for  an  ac- 
counting.   Before  Audbnribd,  P.  J. 

The  court  entered  a  decree  dismissing  the  bill.  Plain- 
tiff appealed. 

Error  assigned  was  decree  dismissing  the  bill. 

J.  8.  Freeman,  with  him  V.  CHlpin  Robinson,  for  ap- 
pellant. 

Charles  F.  DaOosta,  for  appellees. 

Opinion  by  Mr.  Justice  Moschziskbr,  April  21, 1919 : 
J.  N.  M.  Shimer  pledged  certain  stock  of  the  Crucible 
Steel  Castings  Company  and  the  Pennsylvania  Wire 
Glass  Company  to  the  Aldine  Trust  Company,  as.collater- 
al  for  a  loan ;  subsequently  this  collateral  was  bought  in  by 
the  trust  company,  who  sold  part  of  it  to  W.  K.  Wether- 
ill. Shimer  filed  a  bill  in  equity  against  the  trust  com- 
pany and  Wetherill,  praying  that  they  be  ordered  to  re- 
transfer  to  him  so  much  of  this  stock  as  was  then  in  their 
possession,  and  to  account  for  such  parts  thereof  as  had 
been  sold  by  them,  together  with  dividends.  After  hear- 
ing, the  bill  was  dismissed  and  plaintiff  has  appealed. 

Elizabeth  C.  Shimer,  wife  of  J.  N.  M.  Shimer,  who  in- 
tervened as  a  plaintiff,  has  not  joined  in  this  appeal. 


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446    SHIMER,  Appellant,  v.  ALDINB  TRUST  CO. 

Opinion  of  the  Court.  [264  Pa. 

A  party  by  the  name  of  Cunningham  was  originally 
included  as  defendant ;  but  appellant  states,  in  his  paper- 
book,  he  is  not  "pressing  any  claim  against  Cunning- 
ham" ;  further,  that  "no  claim  is  now  made  to  recover 
any  portion  of  the  Crucible  Steel  Castings  Co.'s  stock." 

The  chancellor  found,  inter  alia,  that  the  notes  accom- 
panying the  collateral  empowered  the  holders  thereof, 
"for  purposes  of  liquidation,,,  without  demand  or  notice, 
to  dispose  of  such  collateral,  either  by  public  or  private 
sale,  "with  a  right  on  the  part  of  such  holders  to  become 
the  purchaser  and  absolute  owner  thereof ;  that,  plain- 
tiff being  in  default,  all  the  stock  pledged  as  collateral 
was,  after  demand  and  notice,  offered  at  public  vendue 
by  well-known  auctioneers  in  the  City  of  Philadelphia, 
and,  for  want  of  other  purchasers,  the  trust  company 
bought  in  the  Wire  Glass  Company  stock  for  a 
sum  sufficient  to  pay  the  balance  of  plaintiff's  debt,  inter- 
est and  costs;  that,  after  selling  all  the  stock  which 
could  be  disposed  of  to  others,  for  the  figure  which  it  had 
brought  at  the  beforementioned  public  auction,  defend- 
ant Wetherill,  who  is  the  president  of  the  trust  company, 
took  74  shares  thereof  in  his  own  name,  at  the  same 
price;  finally,  that  every  step  in  the  matter  of  the  sale 
of  this  stock  was  in  strict  accord  with  law  and  the  con- 
tract between  the  parties,  and  "there  was  no  conspiracy 

unlawfully  to  deprive  Mr.  Shimer  of  his  120  shares 

in  the  stock  of  the  Pennsylvania  Wire  Glass  Co." 

Plaintiff  contended  in  the  court  below  that,  notwith- 
standing the  terms  of  his  notes,  there  had  been  a  supple- 
mental contract  between  defendants  and  himself,  where- 
by the  trust  company  had  agreed  not  to  sell  any  of  the 
pledged  stock,  so  long  as  there  was  no  depreciation  in  the 
ralue  thereof  and  interest  on  the  loan  was  kept  paid  up; 
but,  unfortunately  for  plaintiff,  the  chancellor  made  a 
distinct  finding  that  no  such  contract  was  ever  entered 
into  or  existed.  At  argument  before  us,  plaintiff  strenu- 
ously contended  that  this,  as  well  as  other  findings  of 
fact  against  him,  were  not  "justified  by  the  evidence"  and 


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SHIMBR,  Appellant,  v.  ALDINB  TRUST  CO.    447 
1919.]  Opinion  of  the  Court. 

earnestly  urged  that  the  testimony  be  read  in  full,  which 
we  have  done  with  the  utmost  care. 

Our  examination  of  the  record  as  a  whole,  including 
the  evidence,  does  not  lead  to  any  doubt  concerning  the 
correctness  of  the  chancellor's  findings;  but,  as  recently 
said  in  Cruzan  v.  Cruzan,  243  Pa.  165, 166,  "If  a  doubt 
existed,  it  would  not  be  ground  for  reversal ;  noth- 
ing but  clear  error  will  warrant  the  setting  aside  of  find- 
ings of  fact  by  a  chancellor The  findings  of  fact  by 

a  judge,  which  involve  the  credibility  of  witnesses  and 
the  weight  to  be  given  their  testimony,  will  be  given  the 
effect  of  a  verdict  of  a  jury,  and  they  will  not  be  disturbed 
where  there  is  testimony  to  support  them." 

Appellant,  in  his  paper-book,  admits,  "if  the  findings 
of  fact  by  the  trial  judge  are  correct,  his  conclusions  of 
law  follow  as  a  matter  of  course."  Since  we  have  already 
decided  the  findings  will  not  be  disturbed,  nothing  more 
need  be  said. 

The  assignments  of  error  are  overruled  and  the  decree 
is  affirmed ;  appellant  to  pay  the  costs. 


Beibstein,  Appellant,  v.  Abbott's  Alderney  Dairies. 

Negligence — Evidence — Cross-examination. 

In  a  negligence  case  a  nonsuit  is  properly  entered,  where  the  only 
witness  of  the  accident,  the  defendant's  driver,  is  called  by  the 
plaintiff  to  testify  to  certain  facts  relating  to  the  accident,  and 
upon  cross-examination  by  defendant's  counsel  gives  a  more  full  ac- 
count of  the  accident,  from  which  it  appears  that  no  negligence 
could  be  charged  upon  the  defendant.  Such  cross-examination  is 
entirely  proper. 

Argued  March  26,  1919.  Appeal,  No.  303,  Jan.  T., 
1919,  by  plaintiff,  from  order  of  C.  P.  No.  2,  Philadelphia 
Co.,  Dec.  T.,  1917,  No.  4640,  refusing  to  take  off  nonsuit 
in  case  of  Dina  Beibstein  v.  Abbott's  Alderney  Dairies. 
Before  Moschziskeb,  Frazeb,  Walling,  Simpson  and 
Kbphart,  JJ.    Affirmed. 


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448  BEIBSTEIN,  Appel.,  v.  ABBOTTS  A.  DAIEIBS. 

Statement  of  Facts — Opinion  of  the  Court      [264  Pa. 

Trespass  to  recover  damages  for  death  of  plaintiff's 
husband.    Before  Rogers,  J. 

The  court  entered  a  compulsory  nonsuit  which  it  sub- 
sequently refused  to  take  off.    Plaintiff  appealed. 

Error  assigned  was  refusal  to  take  off  nonsuit 

Victor  Frey,  with  him  Augustus  Trash  Ashton,  for  ap- 
pellant, cited:  Jackson  v.  Litch,  62  Pa.  451;  Brunner  v. 
American  Telegraph,  etc.,  Co.,  151  Pa.  447;  Parker  v. 
Mathison  Motor  Car  Co.,  241  Pa.  461;  Danko  v.  Pitts- 
burgh Rys.  Co.,  230  Pa.  295;  Tucker  v.  Pittsburgh,  etc., 
By.  Co.,  227  Pa.  66;  Ferry  v.  Phila.  Rapid  Transit  Co., 
232  Pa.  403. 

Owen  J.  Roberts,  of  Roberts,  Montgomery  &  McKee- 
han,  for  appellee,  was  not  heard. 

Pbb  Curiam,  April  21, 1919 : 

On  May  4, 1917,  about  9 :  30  a.  m.,  plaintiff's  husband, 
Abraham  Beibstein,  while  standing  upon  a  public  high- 
way in  the  City  of  Philadelphia,  at  the  rear  end  of  a 
motortruck  belonging  to  his  father,  was  struck,  knocked 
down  and  severely  injured  by  a  horse  attached  to  one 
of  defendant's  delivery  wagons;  as  a  result,  he  subse- 
quently died. 

Defendant's  driver,  the  only  eyewitness  of  the  accident, 
was  called  by  plaintiff  and  asked  as  to  his  employment, 
the  kind  of  horse  and  wagon  he  was  driving,  where  Beib- 
stein was  standing,  and  what  the  latter  was  doing  im- 
mediately before  the  collision ;  finally,  this  question  was 
put:  "And  what  part  of  your  horse  struck  him"?  To 
which  he  replied,  "Collar."  Counsel  for  defendant  then 
proceeded,  against  plaintiff's  objection,  to  elicit  by  cross- 
examination  a  more  full  account  of  the  accident,  to  the 
effect  that,  just  as  the  horse,  which  was  being  driven  by 
the  witness  on  a  "tight  line"  and  "under  full  control," 
came  near  the  motortruck,  another  automobile  unex- 
pectedly swung  around  a  street  corner,  immediately 


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REIBSTEBJ,  Appel.,  v.  ABBOTTS  A.  DAIRIES.  449 
1919.]  Opinion  of  the  Court, 

ahead,  and,  in  passing,  the  mudguard  of  this  vehicle 
struck  the  horse  on  the  shoulder,  whereupon  it  "reared 

up  and  nearly  touched  the  roof  of  the  wagon ,  and,  ! 

as  it  came  down,  ran  against  Mr.  Reibstein,  striking  : 
and  throwing  him  against  the  corner  of  the  truck."  i 

The  cross-examination  was  entirely  proper  ( Vautier  v.  ; 
Atlantic  Refining  Co.,  231  Pa.  8, 14;  Quigley  v.  Thomp- 
son, 211  Pa.  107;  Glenn  v.  Phila.  &  West  Chester  Trac-  ' 
tion  Co.,  206  Pa.  135;  Smith  v.  P.  T.  Co.,  202  Pa.  54, 
57,  58;  Jackson  v.  Litch,  62  Pa.  451,  455-6),  and,  either 
with  or  without  the  testimony  thus  elicited,  defendant's 
negligence  was  not  shown ;  hence  a  nonsuit  was  justified, 
and  the  court  below  did  not  err  in  refusing  to  remove  it 

Judgment  affirmed. 


iWetherill  et  aL,  Appellants,  v.  Showell,  Fryer  & 

Co,,  Inc. 

Negligence  —  Automobiles — Boys  sledding  on  streets— Speed— 
Signal— Sounds— Evidence. 

1.  The  statement  hy  a  witness  "I  did  not  hear  any  sound  at  all'' 
is  not  evidence  of  a  failure  to  give  warning,  unless  it  appears  he 
would  have  heard  it  had  it  been  sounded,  or  that  he  was  then  giving 
heed  to  the  matter. 

2.  In  a  negligence  case  the  speed  of  the  vehicle  causing  the  in- 
jury is  unimportant,  if  it  was  not  the  cause  of  the  accident. 

8.  A  driver  of  a  vehicle  who  has  no  knowledge  that  boys  are  in 
the  habit  of  sledding  on  a  public  street  is  not  negligent  because  he 
does  not  take  precaution  to  prevent  injury  to  one  who  might  so 
use  it. 

4.  The  distinction  between  Eastburn  v.  United  States  Express 
Co.,  225  Pa.  88,  where  a  recovery  was  not  allowed,  and  Yeager  v. 
Gately  &  Fitzgerald,  Inc.,  262  Pa.  466,  where  it  was,  rests  in  the 
fact  that  in  the  former  case  the  driver  of  the  automobile  did  not 
know  boys  were  in  the  habit  of  sledding  on  the  street,  and  in  the 
latter  did  know  and  failed  to  take  proper  precautions  to  prevent  in" 
jury  to  them. 

Argued  March  26, 1919.   Appeal,  No.  73,  Jan.  T.,  1919, 
by  plaintiffs,  from  judgment  of  C.  P.  No.  1,  Philadelphia 
Vol.  colxiv— 29 

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450  WETHERILL  et  aL,  Appel.,  t>.  SHOWELL,  F.  &  CO. 

Statement  of  Facts — Opinion  of  the  Court  [264  Pa. 
Co.,  Dec.  T.,  1916,  No.  3790,  on  verdict  for  defendant  in 
case  of  E.  Wayne  Wetherill  and  Mary  R.  Wetherill,  his 
wife,  v.  Showell,  Fryer  &  Co.,  Inc.  Before  Moschziskrr, 
Fbazbb,  Walling,  Simpson  and  Kbphart,  J  J.   Affirmed. 

Trespass  to  recover  damages  for  personal  injuries. 
Before  Patterson,  J. 

At  the  trial  the  court  gave  binding  instructions  for  de- 
fendant saying,  "I  feel  constrained  to  do  so  in  view  of 
the  ruling  of  the  Supreme  Court  in  the  case  of  Eastburn 
y.  United  States  Express  Co.,  225  Pa.  33." 

Verdict  and  judgment  for  defendant.  Plaintiff  ap- 
pealed. 

Error  assigned  was  in  giving  binding  instructions  for 
defendant. 

Leon  J.  Obermayer,  with  him  Mason  &  Edmonds,  for  ap- 
pellants.— The  case  was  for  the  jury :  Mulhern  v.  Phila- 
delphia Homemade  Bread  Co.,  257  Pa.  22 ;  Tatarewicz  v. 
United  Traction  Company,  220  Pa.  560;  Jones  v.  United 
Traction  Company,  201  Pa.  344;  Castor  v.  Schaefer,  224 
Pa.  208;  Yoder  v.  Bosworth,  63  Pa.  Superior  Ct.  480; 
Schmidt  v.  McGill,  120  Pa.  405 ;  Streitf eld  v.  Shoemaker, 
185  Pa.  265;  Ellison  v.  Atlantic  Refining  Co.,  62  Pa. 
Superior  Ct.  370;  Meyers  v.  Pittsburgh  Rys.  Co.,  242 
Pa.  502. 

Morris  &  Kirby,  for  appellee. — Ample  precedent  sus- 
tains the  entry  of  judgment  by  the  court  below :  East- 
burn  v.  U.  S.  Express  Co.,  225  Pa.  33;  Stahl  v.  Sollen- 
berger,  246  Pa.  525;  Organ  v.  McCleman,  245  Pa.  264; 
Hoff  v.  Baking  Co.,  70  Pa.  Superior  Ct.  235. 

Opinion  by  Mb.  Justice  Simpson,  April  21, 1919 : 
Plaintiffs,  as  the  parents  of  Howard  W.  Wetherill, 
sued  to  recover  damages  for  his  death  caused  by  his  hav- 


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[WETHERILL  et  al.,  Appel.,  v.  SHOWELL,  F.  &  CO.  451 

1919.]  Opinion  of  the  Court. 

ing  been  run  over  by  an  automobile  truck  belonging  to 
defendant.  The  allegations  of  negligence  in  the  state- 
ment of  claim  are  "the  said  automobile  was  being  driven 

at  a  high  and  reckless  rate  of  speed, the  said  driver 

thereof  failed  to  give  due  and  sufficient  notice  of  his  ap- 
proach  and  was  otherwise  neglecting  and  disregard- 
ing the  duty"  he  owed  to  the  boy.  The  court  below  gave 
binding  instructions  for  defendant,  judgment  was  en- 
tered upon  the  verdict  thus  directed,  and  plaintiffs  ap- 
pealed. As  the  boy  was  but  eight  years  old,  he  was  not 
guilty  of  contributory  negligence,  and  the  only  question 
to  be  considered  is  the  alleged  negligence  of  defendant. 

But  one  person  saw  the  accident,  which  occurred 
about  1  p.  m.  on  February  4,  1916,  at  the  N.  W.  Cor. 
of  Green  and  Carpenter  streets  in  the  City  of  Philadel- 
phia, and  he  and  the  father  of  the  boy  were  the  only  wit- 
nesses who  testified  at  the  trial.  Assuming,  as  we  must, 
that  all  the  facts  testified  to  are  true,  we  find  them  to  be 
as  follows :  The  cartway  of  Green  street  is  24  to  28  feet 
wide,  and  of  Carpenter  street  30  feet  wide;  and  the 
footway  on  each  side  of  each  street  is  from  six  to  eight 
feet  wide.  At  the  place  of  the  accident  Green  street  is 
on  a  sharp  grade  from  north  to  south,  and  Carpenter 
street  is  on  a  slight  grade  from  west  to  east.  Just  be- 
fore the  accident  there  had  been  a  light  snow,  which  had 
partially  melted  and  then  frozen.  When  the  witness 
first  saw  the  parties,  the  boy  was  coasting  his  sled  on  the 
west  pavement  of  Green  street,  approaching  Carpenter 
street,  and  was  about  ten  feet  north  of  the  latter ;  and  de- 
fendant's automobile  was  on  Carpenter  street,  about 
thirty  feet  west  of  Green  street,  traveling  eastwardly,  its 
left  wheels  being  "about  five  feet  from  the  curb."  The 
sled  was  not  traveling  very  fast,  but  how  fast  is  not  stat- 
ed, and  the  automobile  was  traveling  at  a  "moderate  rate 
of  speed,"  which  is  defined  as  being  "about  thirteen  or 
fourteen  miles  an  hour."  The  speed  of  the  sled  evidently 
increased  thereafter,  due  to  the  fact  that  it  was  going 
down  a  steep  incline,  for  although  the  automobile  con- 


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452  WBTHBEILL  et  al.,  Appel.,  v.  SHOWELL,  F.  &  CO. 

Opinion  of  the  Court.  [264  Pa. 

tinued  at  the  same  rate  of  speed,  and  the  sled  reached  the 
house  line  of  Carpenter  street  about  the  same  time  the 
front  wheel  of  the  automobile  was  opposite  the  house  line 
of  Green  street,  yet  the  sled  crossed  the  six  or  eight  feet  of 
the  Carpenter  street  footway,  and  the  five  feet  from  the 
curb  to  the  automobile,  while  the  latter,  which  was  "about 
fourteen  feet  long"  was  traveling  the  distance  between  its 
front  and  rear  wheels.  At  the  corner  where  the  collision 
took  place  there  was  a  school  building,  around  which  was 
a  wall  and  a  terrace  above  it,  so  that  neither  the  driver  of 
the  automobile  nor  the  boy  on  the  sled  could  see  the  other 
until  they  respectively  reached  the  house  lines  of  the  two 
streets.  When  the  sled  reached  the  corner,  the  front 
wheels  of  the  automobile  had  reached  it  and  all  in  front 
of  them  had  passed  it,  and  the  boy  seeing  the  danger 
tried  to  turn  his  sled  so  that  he  could  pass  to  the  rear, 
but  not  being  able  to  do  so  ran  straight  across  the  inter- 
vening space  into  the  left  rear  wheel.  After  the  accident, 
and  apparently  without  knowing  it  had  occurred,  the  au- 
tomobile continued  at  the  same  rate  of  speed  eastwardly 
on  Carpenter  street,  and  passed  out  of  sight  down  a  cross 
street. 

There  was  no  evidence  of  any  person  or  vehicle  being 
on  the  street  except  the  witness  and  his  wagon  and  the  boy 
and  his  sled,  and  the  automobile  and  its  occupants ;  and 
the  witness  saw  no  children  playing  at  or  near  the  place 
of  the  accident.  There  was  no  evidence  that  the  driver 
of  the  automobile  was  not  heeding  what  he  was  doing, 
that  he  knew  boys  were  in  the  habit  of  sledding  there,  or 
even  that  the  grade  of  Green  street  would  permit  them 
to  do  so. 

On  the  question  of  the  driver  signalling  his  approach 
to  Green  street,  the  witness  says  "I  didn't  hear  any 
sound  at  all."  But  he  does  not  say  none  was  given,  or 
that  he  would  have  heard  it  if  it  had  been,  or  that  he  was 
giving  any  heed  to  the  matter.  He  was  some  fifty  or 
sixty  feet  away,  taking  the  blankets  off  his  horses.  The 
question  of  speed  might  be  important  had  the  automobile 


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WETHBRILL  et  al.,  AppeL,  v.  SHOWELL,  F.  &  CO.  453 
1919.]  Opinion  of  the  Court 

struck  some  one  crossing  the  street,  but  under  the  exist- 
ing facts  it  is  unimportant,  the  driver  had  no  reason  to 
anticipate  the  boy  would  come  traveling  at  a  high  rate  of 
speed  southward  on  Green  street,  unable  to  steer  his 
sled;  and  hence  a  lessening  of  the  rate  of  speed  of  the 
automobile  would  only  have  altered  the  point  where  the 
sled  would  have  struck. 

It  is  not  necessary  to  review  at  length  the  authorities 
cited  by  appellant  In  the  main  they  are  inapplicable 
here,  being  cases  where  defendants'  vehicles  ran  into 
plaintiffs,  and  the  question  was  whether  or  not  defend- 
ants' drivers  did  or  could  have  seen  them  in  time  to  avoid 
the  accident.  Two  of  our  recent  cases  will  suffice  to 
point  the  distinction  between  those  in  which  recovery 
may  be  had  and  those  in  which  it  may  not.  In  Eastburn 
v.  United  States  Express  Company,  225  Pa.  33,  judg- 
ment for  defendant  non  obstante  veredicto  was  entered 
by  the  court  below  in  an  opinion  written  by  our  Brother 
Mqsohziskbr,  then  a  judge  of  that  court.  We  affirmed 
on  his  opinion,  where  it  is  said  (34, 38) :  "This  was  not  a 
case  of  one  in  plain  sight  and  about  to  cross  the  street  in 
front  of  a  horse,  with  opportunity  on  the  part  of  the 
driver  to  see  the  person  and  avoid  an  accident,  but  was 
a  case  of  a  sled  moving  rapidly,  beyond  sufficient  control 
of  the  boys  to  avoid  a  collision  with  one  who  had  no  rea- 
sonable expectation  to  look  for  such  an  event.  In  this 
aspect  of  the  case,  the  speed  of  the  horse,  in  our  opinion, 
did  not  cause  the  accident,  because  we  cannot  see  how 

that  speed  in  any  way  contributed  to  the  result 

There  is  no  testimony  to  justify  a  finding  that  the 
driver  had  knowledge  that  the  boys  were  sledding  on  the 
hill,  or  that  they  were  likely  to  be  sledding  there, 

at  the  time  he  was  passing  the  foot  of  the  hill Tlie 

tender  age  of  the  plaintiff  may  well  have  been  sufficient, 
in  the  view  of  the  jury,  to  excuse  him  from  the  charge  of 
contributory  negligence,  but  that  does  not  change  the 
nature  of  the  act,  and,  as  said  in  P.  &  R.  R.  R.  Co.  v. 
Hummell,  44  Pa.  375 :  'Precaution  is  a  duty  only  so  far 


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454  WETHERILL  et  al.,  Appel.,  v.  SHOWELL,  F.  &  CO. 

Opinion  of  the  Court  [264  Pa. 

as  there  is  reason  for  apprehension.' "  On  the  other 
hand,  in  Yeager  v.  Gately  &  Fitzgerald,  Inc.,  262  Pa.  466, 
recovery  was  allowed  because  the  driver  knew  children 
were  in  the  habit  of  coasting  on  the  street  he  was  ap- 
proaching. We  said :  "Several  witnesses  for  plaintiffs 
testified  the  driver  failed  to  give  warning  by  sounding  his 
horn  as  he  approached  the  intersection  of  the  streets. 
While  this  alleged  oversight  was  denied  by  the  driver, 
who  testified  the  horn  was  sounded,  he  also  stated  he  saw 
children  coasting  down  Park  avenue  and  realized  it  was 
incumbent  upon  him  to  exercise  care  as  he  approached 

the  crossing there  is  testimony  the  child  could  be 

seen  by  the  driver  when  the  truck  was  at  least  fifty  feet 

from  the  crossing Although  the  case  is  somewhat 

similar  to  Eastburn  v.  United  States  Express  Co.,  225 
Pa.  33,  there  are  points  of  distinction  as  stated  by  the 

court  below there  appears  to  have  been  no  evidence 

in  that  case  that  the  driver  had  reason  to  believe  that 
children  would  be  on  the  street  in  the  neighborhood  of 
the  accident."  The  present  case  is  in  the  class  to  which 
Eastburn  v.  United  States  Express  Company  belongs, 
and  not  to  that  of  Yeager  v.  Gately  &  Fitzgerald,  Inc. 
The  judgment  is  affirmed. 


Searles,  Appellant,  v.  Boorse. 

Evidence — Court  records — Practice,  C.  P. 

1.  Upon  a  motion  for  judgment  non  obstante  veredicto,  court 
records  duly  admitted  in  evidence,  if  unattacked,  may  be  consid- 
ered, no  matter  by  whom  offered. 

Negligence — Master  and  servant — Safe  place  to  work — Reliance 
on  employer's  judgment — Proximate  cause — Pleading — Plaintiff's 
statement. 

2.  A  master  is  not  required  to  furnish  a  servant  with  a  safe 
place  to  work  where  the  latter  is  employed  for  the  express  purpose 
of  assisting  in  the  repair,  demolition  or  alteration  of  a  property 
partially  destroyed  by  fire,  or  is  engaged  for  the  purpose  of  making 
a  dangerous  place  safe. 


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SBARLES,  Appellant,  v.  BOORSE.  455 

1919.]  Syllabus — Arguments. 

3.  In  such  case  an  employee  who  claims  he  assumed  the  risk  be- 
cause told  by  the  employer  or  his  vice-principal  that  the  place  was 
safe,  must  aver  and  prove  in  what  respect  the  place  was  dangerous, 
that  he  acted  in  reliance  upon  the  statement  that  it  was  safe,  and 
that  he  was  injured  by  reason  of  the  danger  to  which  he  had  thus 
called  attention. 

Argued  March  26,  1919.  Appeal,  No.  176,  Jan.  T., 
1919,  by  plaintiff,  from  judgment  of  C.  P.  No.  5,  Phila- 
delphia Co.,  Sept.  T.,  1914,  No.  1888,  for  defendant  n.  o.  v., 
in  case  of  Samuel  Searles  v.  David  Boorse.  Before 
Moschziskbk,  Frazbr,  Walling,  Simpson  and  Kbphart, 
JJ.    Affirmed. 

Trespass  to  recover  damages  for  personal  injuries.  Be- 
fore Staakb,  J. 

At  the  trial  the  jury  returned  a  verdict  for  plaintiff 
for  $2,000.  Subsequently  the  court  entered  judgment 
for  defendant  n.  o.  v.    Plaintiff  appealed. 

Error  assigned  was  in  entering  judgment  for  defend- 
ant n.  o.  v. 

M .  D.  Hayes,  with  him  Harry  P.  Felger  and  Francis  M. 
Mc Adams,  for  appellant. — As  showing  that  the  circum- 
stantial evidence  in  the  case  at  bar  was  sufficient  to  take 
the  case  to  the  jury,  we  cite  the  following  authorities : 
Folk  v.  Schaffer,  186  Pa.  253 ;  Hughes  v.  Fayette  Mfg. 
Co.,  214  Pa.  282;  Lamb  v.  P.  &  R.  R.  Co.,  217  Pa.  564; 
Fullick  v.  South  Penn  Oil  Co.,  260  Pa.  4;  Madden  v. 
Lehigh  Val.  R.  R.  Co.,  236  Pa.  104;  Mayers  v.  Atlantic 
Refining  Co.,  254  Pa.  544;  Johnson  v.  Phila.  House 
Wrecking  Co.,  55  Pa.  Superior  Ct.  623. 

The  law  of  this  State  seems  clear  to  the  effect  that  the 
employer  is  bound  to  adopt  and  use  the  method  and  sys- 
tem of  work  in  ordinary  use  at  the  time,  and  that  if  he 
adopts  a  system  which  is  not  the  usual  one  but  is  more 
dangerous  than  the  usual  one,  and  if  the  plaintiff  while 
following  such  unusual  and  dangerous  system  is  injured, 

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456  *  SEARLES,  Appellant,  v.  BOOBSE. 

Arguments — Opinion  of  the  Court.  [264  Pa. 

that  the  jury  is  justified  in  finding  a  verdict  against  the 
defendant:  Liptak  y.  Kurrie,  244  Pa.  117;  McOeehan  y. 
Hughes,  223  Pa.  524;  Cunningham  v.  Fort  Pitt  Bridge 
Works,  197  Pa.  625;  Stewart  v.  Cent.  R.  R.  Co.  of  N.  J., 
235  Pa.  311;  Bardsley  v.  Gill,  218  Pa.  56. 

Samuel  L.  Borton,  with  him  E.  Cooper  Bhapley,  for 
appellee. — The  burden  was  on  plaintiff  to  show  not  only 
that  the  floor  was  defective  and  therefore  collapsed,  but 
that  defendant  knew  it  was  defective,  or  ought  to  have 
known  it,  which  means  that  if  defendant  is  to  be  held  lia- 
ble, the  plaintiff  must  show  that  defendant  was  ignorant 
of  it  through  want  of  due  care :  Bradbury  v.  Kingston 
Coal  Co.,  157  Pa.  244-6;  Purdy  v.  Westinghouse  Elec.  & 
Mfg.  Co.,  197  Pa.  257;  Ely  v.  Pittsburgh,  etc.,  Ry.  Co., 
158  Pa.  233 ;  Wojciechowski  v.  Spreckles  Sugar,  etc.,  Co., 
177  Pa.  57;  Moran  v.  General  F.  E.  Co.,  259  Pa.  16a 

Opinion  by  Mb.  Justice  Simpson,  April  21, 1919 : 
Plaintiff  sued  defendant  to  recover  damages  for  per- 
sonal injuries ;  the  trial  judge  declined  defendant's  point 
for  binding  instructions,  reserved  another  point  to  sub- 
stantially the  same  effect,  and  submitted  the  case  to  the 
jury,  which  found  a  verdict  for  plaintiff;  the  court  be- 
low entered  judgment  for  defendant  non  obstante  vere- 
dicto, and  plaintiff  appeals.  We  must,  therefore,  assume 
as  true  all  the  facts  and  inferences  from  facts  which  the 
jury  might  have  found  in  favor  of  plaintiff,  and  reject  all 
those  unfavorable  to  him  which  the  jury  might  have  re- 
jected; but  unattacked  court  records  duly  proved  and  ad- 
mitted in  evidence  must  be  given  due  weight,  though  ap- 
pearing in  defendant's  testimony.  Prom  the  standpoint 
stated,  the  facts  are  as  follows : 

Plaintiff  and  one  Jacob  Cottman,  who  were  employees 
of  defendant,  were  working  for  him  in  tearing  out  a  por- 
tion of  a  building  at  the  S.  W.  Cor.  of  30th  and  Master 
streets  in  the  City  of  Philadelphia,  which  had  been  par- 
tially destroyed  by  fire;  and  while  so  engaged  plaintiff 


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SBABLES,  Appellant,  v.  BOORSE.  457 
1919.]  Opinion  of  the  Court. 
received  the  injury  of  which  he  now  complains.  When 
he  first  brought  suit  for  this  injury,  he  averred  in  his 
sworn  statement  of  claim,  he  was  set  to  work  "in  the  dig- 
ging of  a  certain  excavation  in  and  about  the  said  build- 
ing  and  while  employed  in  digging  the  said  exca- 
vation  close    to   a    certain    large   wall not 

shored,  braced  or  protected, said  large  wall  col- 
lapsed and  fell  upon  the  plaintiff,  throwing  him  to  the 
ground  and  seriously  injuring  him  about  the  head,  neck, 
body,  legs  and  arms,  and  injuring  him  internally."  The 
record  before  us  fails  to  disclose  what  was  done  with  that 
suit,  which  was  in  another  court  than  the  one  in  which 
this  case  was  tried.  In  the  present  case  he  sues  for  the 
same  injury  and  alleges  in  his  sworn  statement  of  claim, 
he  was  sent  to  work  on  the  fifth  floor  of  the  building,  and 
while  there  "the  floor  upon  which  plaintiff  was  standing 
suddenly  collapsed  and  gave  way  beneath  him,  and  he 
was  thrown  from  his  position  and  was  struck  by  a  piece 
of  timber  which  had  fallen  from  overhead,  in  consequence 
of  which  he,  the  said  plaintiff,  was  seriously  injured 
about  the  head,  neck,  legs,  body  and  arms,  and  was  in- 
jured internally."  This  record  is  barren  of  any  expla- 
nation of  these  contradictory  statements. 

The  case  was  tried  twice,  and  on  the  last  trial,  now 
being  reviewed,  plaintiff  testified  he  and  Cottman  were 
engaged  in  getting  a  piece  of  burnt  timber  out  of  a  shaft 
into  which  it  had  fallen,  plaintiff  going  to  the  fifth  story 
and  pulling  a  rope  attached  to  the  timber,  and  Cottman 
pushing  from  below.  Before  going  there  he  said  to  Cott- 
man "Jake,  I  don't  think  it's  very  safe  because  you  know 
how  that  floor  is  up  there ;  I  think  it's  pretty  dangerous." 
And  the  latter  said  in  reply  "Yes,  everything  up  there  is 
perfectly  safe  and  sound."  No  reason  was  given  by 
plaintiff  why  he  did  not  think  the  floor  was  safe,  but  his 
remark  implies  he  was  well  acquainted  with  the  situa- 
tion. He  says  he  found  the  "fifth  floor  was  nothing  but 
lumber  that  had  fallen  down  from  the  house  when  the  Are 
was — rubbish,  and  half  brickbats,  and  one  stuff  and  an- 


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458  SEABLES,  Appellant,  v.  BOOBSE. 

Opinion  of  the  Court.  [264  Pa. 

other  like  that'' ;  and  while  he  was  standing  eater-cor- 
nered across  the  shaft  and  pulling  and  Cottman  was  push- 
ing, and  the  timber  was  part  way  up,  the  floor  at  the 
edge  of  the  shaft  gave  way,  his  foot  slipped  into  the 
shaft,  he  threw  himself  backward,  his  back  struck  an- 
other piece  of  timber  which  was  lying  on  the  floor,  and 
he  was  injured.  This  is  his  whole  account  of  the  acci- 
dent. He  admits  nothing  fell  from  above  and  struck  him, 
and  that  at  the  first  trial  he  testified  he  was  injured  by 
his  back  striking  against  the  side  of  the  shaft. 

At  this  trial  he  called  two  witnesses,  who  testified  the 
best  way  to  do  this  kind  of  work  would  be  to  use  a  block 
and  tackle,  but  as  their  answers  related  rather  to  con- 
venience in  doing  the  work,  and  as  one  of  them  said  a 
block  and  tackle  would  not  be  needed  unless  the  timber 
was  wedged  in,  which  this  one  was  not,  and  the  other  that 
they  were  not  needed  until  the  timber  got  to  the  top  of  the 
shaft,  which  plaintiff  says  this  piece  did  not,  we  may  dis- 
miss their  testimony  from  further  consideration.  There 
is  no  other  evidence  antagonistic  to  the  method  used  in 
getting  out  the  timber. 

In  3  Labatt  on  Master  and  Servant,  Sec.  924,  it  is 
said  the  duty  to  furnish  a  safe  place  to  work  does  not 
apply  "where  the  injured  servant  was  hired  for  the  ex- 
press purpose  of  assisting  in  the  repair,  demolition  or  al- 
teration of  some  instrumentality,  and  the  unsafe  condi- 
tions from  which  the  injury  resulted  arose  from  or  were  in- 
cidental to  the  work or  where  the  servant  is  engaged 

for  the  very  purpose  of  making  a  dangerous  place  safe." 
In  our  own  reports  there  does  not  appear  to  be  any  case 
identical  with  the  present,  but  the  principle  above  quoted 
is  sound,  and  has  been  applied  in  the  case  of  work  being 
done,  in  Mansfield  Coal  &  Coke  Co.  v.  McEnery,  91  Pa. 
185;  Wannamaker  v.  Burke,  111  Pa.  423;  and  Walton 
v.  Bryn  Mawr  Hotel  Co.,  160  Pa.  3.  Everybody  knows 
a  fire  weakens  a  building,  and  the  work  to  be  performed 
is  to  remove  the  insecure  parts  of  the  building  that  it 
may  thereafter  be  restored  and  made  safe.    In  such  cases 


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SEAKLES,  Appellant,  v.  BOORSB.  459 

1919.]  Opinion  of  the  Court. 

the  rule  of  assumption  of  risk  peculiarly  applies,  and  the 
requisite  of  a  safe  place  to  work  does  not:  Hanley  v. 
Carnegie  Steel  Co.,  256  Pa.  44,  47-8.  Apparently  recog- 
nizing this  fact,  plaintiff  seeks  to  avoid  its  effect  by  aver- 
ring Cottman  was  a  vice-principal,  and  he,  plaintiff,  had 
a  right  to  rely  on  the  assurance  given  him  as  above 
quoted.  There  are  several  reasons  why  this  contention 
cannot  be  successfully  maintained. 

In  the  first  place  he  does  not  aver  the  alleged  fact.  In 
his  statement  of  claim,  after  setting  forth  every  imagin- 
able character  of  duty  which  defendant  could  owe  to  him, 
he  says  the  accident  happened  "because  of  the  improper 
method  and  system  of  said  work,  and  of  the  dangerous 
condition  of  said  building,  and  of  the  incompetent  fore- 
man and  fellow  workmen,  and  of  the  fact  that  the  tools 
and  appliances  were  not  proper,  and  because  the  place  in 
which  the  plaintiff  was  set  to  work  was  dangerous  and 
unsafe."  There  was  no  proof  of  any  of  those  matters  ex- 
cept the  alleged  "improper  method  and  system  of  said 
work,"  which  has  already  been  disposed  of;  and  "the 
dangerous  condition  of  said  building"  and  "the  place  in 
which  the  plaintiff  was  set  to  work  was  dangerous  and 
unsafe."  As  already  pointed  out  his  knowledge  of  the 
alleged  "dangerous  condition  of  said  building"  precludes 
him  from  complaining  of  the  alleged  unsafe  place  to 
work,  so  that  there  was  nothing  in  his  statement  of  claim 
upon  which  he  could  recover. 

Moreover  he  was  bound  to  aver  and  prove  that  in  reli- 
ance upon  Cottman's  statement  he  proceeded  with  the 
work:  4  Labatt  on  Master  and  Servant,  Sec.  1370  a. 
Therein  also  in  section  1376,  it  is  said  the  same  rule  ap- 
plies in  this  class  of  cases  as  in  "those  in  which  there  had 
been  an  explicit  assertion  by  the  master,  or  some  agent  for 
whose  statements  he  was  responsible,  that  certain  condi- 
tions of  which  the  servant  had  acquired  knowledge,  had 
been  remedied,  or  that  certain  precautions  to  secure  his 
safety  would  be  taken."  As  regards  this  latter  we«said,  in 
Dobra  v.  Lehigh  Valley  Coal  Co.,  250  Pa.  313,  317:  "He 


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460  SEARLES,  Appellant,  v.  BOOESE. 

Opinion  of  the  Court  [264  Pa. 

did  not,  however,  say  that  he  relied  on  the  alleged  prom- 
ise in  continuing  his  work.  In  order  to  overcome  the  de- 
fense of  assumption  of  risk,  in  an  action  under  the  com- 
mon law,  the  employee  must  show  affirmatively,  not  only 
that  he  complained  of  the  danger,  and  that  the  employer 
promised  to  correct  it,  but  that  in  continuing  to  work  he 
relied  on  that  promise.  Otherwise  he  must  be  held  to 
have  assumed  the  risk."  The  same  rule  is  laid  down  in 
Ellett  v.  Lit  Brothers,  Incorporated,  264  Pa.  185.  In 
the  present  case  there  was  no  such  averment  or  proof. 
True,  plaintiff  went  upstairs  to  do  the  work,  shortly 
after  the  conversation  with  Cottman,  but  a  reliance  upon 
the  statement  can  no  more  be  inferred  therefrom  in  this 
class  of  cases  than  upon  the  promise  in  the  other,  and  in 
Dobra  v.  Lehigh  Valley  Coal  Co.,  supra,  no  such  inference 
was  allowed. 

So,  too,  this  record  is  barren  of  proof  showing  in  what 
respect  plaintiff  thought  the  floor  was  dangerous,  and  in 
what  respect,  if  any,  it  in  fact  was  dangerous.  All  we  are 
told  is  that  it  "gave  way"  at  the  edge  and  plaintiff's  foot 
and  leg  went  into  the  shaft.  There  is  no  evidence  that  it 
was  burned  at  the  edge,  or  as  to  what  caused  it  to  give 
way  or  how  it  "gave  way."  It  certainly  did  not  collapse, 
as  plaintiff  averred  in  his  statement,  for  he  does  not  al- 
lege it  fell  or  there  was  a  hole  in  it,  and  says  he  knows 
nothing  about  anything  being  wrong  with  the  joists, 
which  were  under  the  floor  all  around  the  shaft.  His 
evidence  is  a  conclusion  and  not  the  facts  upon  which  the 
conclusion  is  founded.  In  order  to  base  a  recovery  upon 
the  statement  of  Cottman,  plaintiff  was  bound  to  aver 
and  prove  in  what  respect  the  floor  was  "pretty  danger- 
ous," that  he  relied  upon  the  statement  that  it  was  "per- 
fectly safe  and  sound,"  and  was  injured  by  reason  of  the 
danger  to  which  he  had  called  attention. 

The  judgment  of  the  court  below  is  affirmed. 


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GORDON,  Appellant,  v.  PHILA.  B.  T.  CO.         461 
1919.]  Syllabus. 


Gordon,  Appellant,  v.  Philadelphia  Bapid 
Transit  Co, 

Practice,  Supreme  Court — Assignments  of  error — Excerpt  from 
charge — Elision. 

1.  Where  an  assignment  of  error  is  to  a  portion  of  the  charge, 
the  excerpt  assigned  for  error  must  present  completely  the  phrase- 
ology used  by  the  judge  in  expressing  the  full  thought  under  im- 
mediate consideration,  and  the  appellant  is  not  permitted  to  elide 
essential  words. 

Negligence  —  Street  railways  —  Collision  of  car  with  wagon — 
Speed — Pleadings — Declaration. 

2.  In  an  action  to  recover  damages  for  personal  injuries  caused 
by  a  collision  between  defendant's  car,  and  a  wagon  which  plaintiff 
was  driving,  where  the  defendant's  evidence  was  in  effect  that  the 
plaintiff's  horse  without  warning  suddenly  "wheeled  around"  bring- 
ing the  wagon  directly  in  front  of  the  moving  car,  and  that  the 
car  stopped  almost  immediately  after  the  impact,  this  latter  fact 
not  being  denied  by  plaintiff,  and  undue  speed  not  being  alleged  in 
his  declaration  or  properly  shown,  the  prior  speed  of  the  car,  in 
determining  the  question  of  defendant's  alleged  negligence,  is  of  no 
importance. 

Negligence — Charge  of  court — Assignments  of  error — Damages — 
Charge  as  to  damages — Harmless  error. 

3.  Where  in  an  action  to  recover  damages  for  personal  injuries 
the  jury  returns  a  verdict  for  defendant  on  which  judgment  is  en- 
tered, assignments  of  error  to  portions  of  the  charge  of  the  court 
relating  to  special  item  of  damages,  are  unimportant,  and  will  not 
be  considered  by  the  appellate  court  in  dismissing  the  appeal  by  the 
plaintiff. 

Practice,  Supreme  Court — Assignments  of  error — General  excep- 
tion— Special  exception — Request  for  instruction. 

4.  An  assignment  of  error  to  matter  which  is  not  of  a  character 
which  can  be  taken  advantage  of  on  a  mere  general  exception,  will 
not  be  considered,  where  the  record  shows  that  no  special  exception 
to  the  instruction  was  requested  or  noted. 

5.  Where  an  assignment  of  error  complains  because  the  trial 
judge  said  to  the  jury:  "Plaintiff  is  interested  in  the  case,  but  still 
he  is  entitled  to  testify,"  and  the  appellant  contends  that  the  in- 
struction should  have  been  differently  worded,  the  assignment  will 


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462         GORDON,  Appellant,  v.  PHIL  A.  R.  T.  CO. 

Syllabus— Opinion  of  the  Court.  [264  Pa. 

not  be  considered,  if  it  appears  that  the  appellant  did  not  ask  for 
the  instruction  which  he  desired  in  advance,  or  specially  except  to 
the  charge  because  of  its  omission.  Such  complaint  will  not  be  con- 
sidered on  a  general  exception. 

Evidence — Competency  of  medical  expert — Review. 

6.  The  question  of  the  competency  of  a  medical  expert  is  for  the 
trial  court,  and  a  ruling  thereon  will  be  reversed  only  when  manifest 
error,  or  abuse  of  discretion,  appears. 

Argued  March  27,  1919.  Appe&l,  No.  266,  Jan.  T., 
1919,  by  plaintiff,  from  judgment  of  C.  P.  No.  3,  Phila- 
delphia Co.,  Dec.  T.,  1917,  on  verdict  for  defendant  in 
case  of  Abraham  Gordon  v.  Philadelphia  Rapid  Transit 
Company  and  Philadelphia  Railways  Company.  Before 
Mosghziskbr,  Frazbr,  Walling,  Simpson  and  Kbphart, 
JJ.    Affirmed. 

Trespass  to  recover  damages  for  personal  injuries.  Be- 
fore McMichabl,  P.  J. 

Verdict  and  judgment  for  defendant.  Plaintiff  ap- 
pealed. 

Errors  assigned  are  indicated  in  opinion  of  Supreme 
Court. 

Roland  C.  Evans,  of  Evans,  Forster  &  Wernick,  with 
him  Abraham  Wernick  and  I.  G.  Gordon  Forster,  for  ap- 
pellant. 

Chester  N.  Fwrr,  Jr.,  for  appellee,  was  not  heard. 

Opinion  by  Mr.  Justice  Moschzisker,  April  21, 1919 : 
Abraham  Gordon,  alleging  that,  while  leading  a  horse 
attached  to  an  ice  wagon  diagonally  across  a  public  high- 
way in  the  City  of  Philadelphia,  he  was  negligently  run 
into  and  injured  by  a  car  of  defendant  company,  sued  to 
recover  damages ;  a  verdict  was  rendered  for  defendant 
and  after  judgment  thereon  plaintiff  appealed. 

The  first  assignment  of  error  purports  to  excerpt  a 
certain  part  of  the  charge,  but  omits  from  the  body  of  the 


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GORDON,  Appellant,  v.  PHILA.  R.  T.  CO.         463 
1919.]  Opinion  of  the  Court. 

quotation  several  words  material  to  the  thought  which 
the  trial  judge  voiced  therein.  When  complaint  is  made 
against  any  portion  of  a  charge,  the  excerpt  assigned  for 
error  must  present  completely  the  phraseology  used  by 
the  judge  in  expressing  the  full  thought  under  immediate 
consideration,  and  appellant  is  not  permitted  to  elide 
essential  words.    This  assignment  is  dismissed. 

The  second  assignment  complains  of  instructions,  in 
substance,  that  the  speed  of  the  car  was  not  a  controlling 
factor  in  determining  the  alleged  negligence  of  defend- 
ant. Here  again  important  words  are  left  out  of  the 
excerpt  from  the  charge;  for  instance,  the  trial  judge 
first  called  attention  to  differences  in  the  testimony  on 
the  question  of  speed,  pointing  out  that  this  was  impor- 
tant to  the  jury  in  determining  whether  they  should  "be- 
lieve the  motorman's  account  of  the  accident  or  plain- 
tiffs." These  instructions  are  entirely  omitted  by  appel- 
lant, who  quotes  what  follows  to  the  effect  that,  since 
trolley  cars  have  a  right  to  run  fast  and  the  testimony  de- 
pended upon  by  plaintiff  shows  no  more  than  that  the 
present  car  did  so  run,  such  testimony,  in  the  opinion  of 
the  judge,  need  not  be  considered  in  deciding  the  question 
of  defendant's  alleged  negligence;  but  he  immediately 
added  that  the  controlling  point  for  decision  was  whether 
or  not  the  motorman  acted,  under  the  circumstances,  as 
"a  careful  man  in  the  pursuit  of  his  business  should  have 

done ,  whether  the  motorman  was  careless  or  not," 

which  also  is  omitted  from  the  matter  quoted  by  appel- 
lant. Because  of  these  important  omissions,  and  another, 
referred  to  later,  the  assignment  in  hand  might  be  denied 
further  discussion;  but,  as  we  shall  show,  there  is  no 
substantial  merit  in  the  complaint  which  it  endeavors  to 
plead. 

If  defendant's  evidence  is  believed,  plaintiff's  horse, 
without  warning,  suddenly  "wheeled  around,"  bringing 
the  wagon  directly  in  front  of  the  moving  car,  and  the 
latter  stopped  almost  immediately  after  the  impact; 
of  course,  under  these  circumstances,  prior  speed  of  the 


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464         GORDON,  Appellant,  v.  PHILA.  R.  T.  CO. 

.  Opinion  of  the  Court.  [264  Pa. 

car  is  of  no  importance  in  determining  the  question  of 
defendant's  alleged  negligence.  On  the  other  hand,  ac- 
cording to  plaintiff's  version,  the  car  started  from  a  state 
of  rest,  some  240  feet  away,  when  the  wagon  was  actually 
on  the  track,  and  then,  with  the  latter  vehicle  in  plain 
view  all  the  while,  rapidly  traversed  this  distance  and 
forcibly  collided  with  it;  but,  since  the  testimony  relied 
upon  by  plaintiff  contains  no  denial  that,  upon  the  im- 
pact, the  car  stopped  practically  at  once,  the  only  rea- 
sonable conclusion  is,  if  there  was  any  negligence  on  part 
of  the  motorman,  this  must  be  attributed  to  lack  of 
proper  manipulation  of  his  car  when  it  came  up  with  the 
wagon,  rather  than  to  prior  undue  speed. 

Moreover,  plaintiff's  declaration  contains  no  charge 
of,  or  reference  to,  undue  speed;  and,  while  appellant 
calls  attention  to  several  statements  of  a  general  char- 
acter to  the  effect  that  the  car  was  running  "very  f ast," 
none  of  these  excerpts  from  the  testimony  shows  even 
an  attempt  at  an  intelligent  estimate  of  speed  (Moses  v. 
Northwestern  Pa.  By.,  258  Pa.  537,  541) ;  which  latter 
omission,  when  we  consider  the  pleadings  and  the  un- 
denied  testimony  on  the  other  side,  as  to  the  immediate 
stop  of  the  car  at  the  place  of  the  accident  (Wolf  v.  P.  R. 
T.  Co.,  252  Pa.  448,  450-1),  was  sufficient  to  justify  the 
instructions  here  complained  of. 

Finally,  in  the  excerpt  now  under  discussion,  appellant 
quotes  these  words :  "I  do  say  that  the  question  of  speed 
is  not  evidence  of  negligence,"  whereas  an  examination 
of  the  charge  itself,  as  printed  in  the  place  indicated  for 
that  purpose  by  our  rules,  shows  the  words  employed  to 
be,  "I  do  not  say  that  tfie  question  of  speed  is  not  evidence 
of  negligence.  The  elimination  of  the  word  "not"  is 
the  other  omission  previously  referred  to;  and,  as  may 
be  seen,  it  is  a  material  one. 

When  all  the  trial  judge's  references  to  speed  are  con- 
sidered, appellant's  criticisms  of  the  charge  on  that  score 
are  without  substantial  merit,  and,  if  the  present  assign- 
ment were  in  due  form,  it  might  be  overruled  on  thii 


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GORDON,  Appellant,  v.  PHILA.  B.  T.  CO.         465 
1919.]  Opinion  of  the  Court. 

ground;  we  shall,  however,  dismiss  it  as  defective  in  the 
several  respects  already  pointed  out. 

Under  the  third  assignment,  appellant  once  more  criti- 
cizes instructions  to  the  jury.  Here  again  important 
words  are  omitted,  which  show  that  the  quotation  from 
the  charge  contained  in  this  specification  of  error  refers 
to  a  claim  of  damages  for  hernia,  alleged  to  have  been 
suffered  by  plaintiff  as  the  result  of  the  accident.  Since 
the  verdict  shows  the  jury  found  no  negligence  on  part  of 
defendant,  these  instructions  become  unimportant;  and 
the  assignment  is  dismissed. 

What  we  have  just  said  is  equally  appropriate  to  the 
fourth  assignment ;  for,  while  the  trial  judge  stated,  "If  a 
man  comes  into  court  and  tries  to  deceive  you,  he  is  not 
entitled  to  recover,"  it  is  plain,  when  this  is  taken  with 
its  context,  the  jury  must  have  understood  his  meaning  to 
be  that,  if  they  believe  the  plaintiff  was  endeavoring  to 
deceive  them  as  to  the  alleged  hernia  being  due  to  the 
accident,  he  was  not  entitled  to  recover  that  item  of  dam- 
age. In  fact,  almost  immediately  after  the  part  which 
plaintiff  excerpts  from  the  charge,  the  following  words, 
to  that  effect,  appear:  "If  plaintiff  is  not  telling  you 
the  truth,  and  he  had  a  rupture,  or  hernia,  before,  he  is 
not  entitled  to  recover  for  that."  In  addition,  the  trial 
judge  pointed  out  several  distinct  items  of  damage,  be- 
sides the  alleged  hernia,  which  plaintiff  was  entitled  to 
recover,  if  the  jury  believed  the  accident  due  to  defend- 
ant's negligence;  but,  as  already  said,  it  is  evident  the 
verdict  is  based  upon  a  finding  of  no  negligence,  and, 
therefore,  it  may  be  assumed  that,  in  their  deliberations, 
the  jurors  never  reached  a  consideration  of  the  instruc- 
tions on  the  measure  of  damages.  This  assignment  like- 
wise is  dismissed. 

The  fifth  assignment  consists  of  a  short  excerpt  from 
the  charge,  which,  standing  alone,  fails  to  convey,  or  even 
suggest,  a  complete  thought  of  any  kind,  either  right  or 
wrong;  this,  in  itself,  is  enough  to  condemn  the  com- 
plaint. Moreover,  it  appears  from  appellant's  argument 
Vol.  cclxiv— 30 

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466         GORDON,  Appellant,  v.  PHTTjA.  B.  T.  CO. 

Opinion  of  the  Court.  [264  Pa. 

that  the  matter  attempted  to  be  alleged  as  error  is  not 
of  a  character  which  can  be  taken  advantage  of  on  a  mere 
general  exception;  therefore,  since  no  special  exception 
to  the  instruction  in  hand  was  requested  or  noted,  the 
assignment  will  be  dismissed  without  further  consider- 
ation. 

The  sixth  assignment  complains  because  the  trial 
judge  said  to  the  jury:  "Plaintiff  is  interested  in  the 
case,  but  still  he  is  entitled  to  testify."  Appellant  con- 
tends the  jury  should  have  been  told  that,  even  though 
plaintiff  was  interested  in  the  case,  if  they  believed  he 
was  telling  the  truth,  his  story  ought  to  be  accepted.  If 
plaintiff  desired  such  instruction,  he  either  should  have 
asked  for  it  in  advance  or  specially  excepted  to  the  charge 
because  of  its  omission;  but  he  did  neither,  and  his  com- 
plaint will  not  be  considered  on  a  general  exception: 
Sikorski  v.  P.  &  R.  Ry.  Co.,  260  Pa.  243, 250. 

The  seventh  assignment  goes  to  the  admission  of  testi- 
mony of  a  physician  called  by  defendant.  We  have  often 
said  the  question  of  the  competency  of  a  medical  expert  is 
for  the  trial  court,  and  a  ruling  thereon  will  be  reversed 
only  when  manifest  error  or  abuse  of  discretion  appears ; 
which  is  not  the  present  case.  This  assignment  is  over- 
ruled. 

The  eighth  assignment,  since  it  concerns  plaintiff's  al- 
leged monetary  damage  only,  need  not  be  considered  on 
this  review,  for  reasons  already  pointed  out. 

The  remaining  assignments  contain  general  complaints 
that  the  verdict  is  against  the  evidence,  the  weight  of  the 
evidence,  and  the  law;  these  are  overruled. 

The  judgment  is  affirmed. 


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BAXTBB  v.  PHILA.  &  R.  RY.  CO.,  Appellant.       467 
1919.]  Syllabus. 


Baxter  v.  Philadelphia  &  Beading  Eailway  Com- 
pany, Appellant. 

Negligence — Damages — Earning  power — Profits — Evidence, 

1.  Profits  should  not  be  used  as  a  safe  guide  for  measuring  earn- 
ing power,  although  they  may  indicate  the  possession  of  business 
ability  and  qualifications.  Strictly  speaking,  compensation  for 
the  loss  of  earning  power  as  far  as  possible  should  be  limited  to 
earnings  which  are  the  result  of  personal  effort,  either  physical  or 
mental,  in  which  profits  from  invested  capital,  or  profits  from  the 
labor  of  others  must  not  be  included. 

2.  Where  it  is  impossible  in  a  business  enterprise  to  distinguish 
between  the  personal  earnings  of  the  individual  and  the  return 
from  the  capital  invested  and  the  labor  of  others,  the  net  income, 
or  net  results  from  such  business,  cannot  be  considered  in  de- 
termining the  amount  of  damages  to  which  the  claimant  is  entitled. 
But  where  the  predominating  factor  is  the  directing  intellectual 
and  physical  labor  of  the  individual,  such  business  may  be  charac- 
terized as  personal  to  that  individual,  though  others  with  tools  and 
equipment  may  aid  in  the  work. 

3.  The  question  is,  would  the  business  if  no  accident  had  oc- 
curred have  the  same  measure  of  success  it  always  had;  and  would 
that  success  continue  during  the  period  of  the  probable  life  of  the 
owner?  If  the  answer  is  in  the  affirmative,  then  there  is  no  loss  on 
that  account;  but,  if  in  the  negative,  since  thj  personal  equation  is 
concerned,  the  uncertain  factors,  such  as  business  depression, 
market  conditions,  business  losses,  will  not  be  sufficient  to  deprive 
the  claimant  of  the  right  to  fair  compensation  for  the  loss  of  earn- 
ing power  where  the  latter  can  be  fairly  and  approximately  meas- 
ured. 

4.  Each  case  must  depend  on  the  nature  and  extent  of  the  busi- 
ness, the  amount  of  personal  direction  and  labor  to  be  engaged  in 
connection  therewith,  as  well  as  the  amount  of  capital  invested  and 
the  labor  employed. 

5.  The  effect  of  the  loss  of  the  individual's  services  to  the  busi- 
ness may  be  indicated  by  evidence  pointing  out  the  pecuniary  loss 
sustained  by  reason  of  the  absence  partial  or  total,  of  the  personal 
attention  and  labor  of  the  individual ;  not  as  definitely  fixing  the 
measure  to  value  the  earning  power,  but  as  an  aid  to  the  jury,  after 
considering  all  the  attendant  circumstances  involved  in  the  busii 
ness  in  its  effort  to  determine  what  the  measure  should  be.   Atten- 


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468       BAXTER  v.  PH1LA.  &  &  RY.  CO.,  Appellant 

Syllabus.  [264  Pa. 

tion  may  be  called  to  all  the  depressing  influences  to  which  a  busi- 
ness is  subjected. 

6.  If,  because  of  the  magnitude  and  complexity  of  the  business, 
or  through  death,  or  otherwise,  this  evidence  be  not  available,  then 
the  claimant  after  fully  describing  the  business,  and  the  injured 
person's  connection  therewith  should  be  permitted  to  show  what  the 
services  were  worth  if  employed  under  like  circumstances  by  an- 
other in  a  similar  capacity. 

7.  While  the  evidence  to  show  the  pecuniary  loss,  or  the  effect 
of  the  absence  of  the  personal  attention,  need  not  be  clear  and  indu- 
bitable, it  should  not  be  a  mere  guess,  or  a  paper  loss;  it  should 
be  shown  to  exist  as  an  actual  loss;  and  this  evidence  should  be 
subject  to  criticism  from  him  who  must  pay  the  loss,  to  the  end 
that  the  pecuniary  loss  claimed  as  the  standard  should  not  exceed 
that  usually  paid  to  persons  performing  similar  services  to  others. 
A  person  who  has  personal  knowledge  of  plaintiff's  business  and 
of  the  manner  in  which  it  was  conducted,  and  the  time  and  atten- 
tion given  to  it,  may  testify  as  to  what  the  services  are  worth. 

8.  We  do  not  wish  to  be  understood  as  holding  that  sums  given 
for  the  support  of  the  family  are  evidence  of  earning  power,  but 
where  a  sum  of  money  claimed  as  a  yearly  value  of  earning  power 
is  derived  from  a  business  from  which  the  claimant  has  his  sole 
source  of  income,  and  this  sum  represents  a  part  of  the  net  earnings 
which  were  produced  through  the  claimant's  personal  direction 
and  8uperintendency,  and  such  sum  is  not  beyond  what  his  serv- 
ices would  be  worth  if  he  were  employed  by  another  in  like 
capacity  in  the  same  business,  the  amount  so  claimed  would  fur- 
nish some  evidence  which  the  jury  might  consider  in  fixing  the 
value  of  earning  power.  That,  in  point  of  fact  this  sum  was  given 
to  the  deceased's  family  for  support,  is  not  material ;  nor  is  it  ma- 
terial that  a  minor  son  contributed  to  the  business,  in  a  small 
way,  and  was  not  paid  a  salary  or  wage. 

9.  In  an  action  by  a  wife  to  recover  damages  for  the  death  of 
her  husband  evidence  is  properly  admitted  to  show  earning  power, 
to  the  effect,  that  the  deceased  was  a  wagon  builder  and  black- 
smith, and  that  the  larger  part  of  his  business  was  repair  work; 
that  his  only  income  was  from  such  business ;  that  he  used  in  con- 
nection with  the  business  certain  machinery  driven  by  an  electric 
motor,  the  current  of  which  was  purchased;  that  the  deceased 
worked  in  the  shop  like  any  other  employee,  and  also  acted  as  a 
superintendent  in  connection  with  the  general  work;  that  he  had 
the  assistance  of  his  minor  son  and  four  or  five  employees;  that 
while  some  new  wagons  were  constructed  they  were  sold  as  rapidly 
as  built;  that  there  was  on  hand  at  the  time  of  his  death  material 
valued  at  $2,200,  and  his  plant  equipment  which  did  not  represent 


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BAXTER  v.  PHILA.  &  R.  RY.  CO.,  Appellant.       469 

1919.]  Syllabus— Arguments, 

an  investment  above  that  figure;  and  that  out  of  the  income  he 
gave  to  his  wife  approximately  $1,800  yearly  for  the  support  of 
his  family. 

Trial — Charge — Request  far  instruction. 

10.  Where  a  trial  judge  has  in  his  general  charge  instructed  the 
jury  as  to  a  particular  subject,  it  is  not  error  for  him  to  refuse  a 
point  which  is  substantially  a  repetition  of  what  was  covered  by 
the  charge. 

Negligence — Railroads — Death  at  crossing — Photograph. 

11.  On  the  trial  of  an  action  to  recover  damages  for  the  death  of 
plaintiffs  husband  at  a  railroad  crossing,  photographs  in  evidence 
showing  a  view  of  the  crossing  on  a  clear  day,  are  not  conclusive  of 
the  distance  which  could  be  seen  along  the  tracks,  if  it  appears 
that  the  accident  occurred  in  the  evening  at  dusk,. and  that  a  view 
along  the  tracks  at  the  time  could  not  be  obtained  for  more  than 
several  hundred  feet. 

Argued  Jan.  20,  1919.  Appeal,  No.  86,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  1,  Philadelphia 
Co.,  March  T.,  1916,  No.  3946,  on  verdict  for  plaintiff  in 
case  of  Catherine  Baxter  v.  Phila.  &  Reading  Ry.  Co. 
Before  Stewart,  Fbazbr,  Walling,  Simpson  and  Kep- 
habt,  JJ.    Affirmed. 

Trespass  to  recover  damages  for  death  of  plaintiff's 
husband.    Before  Patterson,  J. 

Verdict  and  judgment  for  plaintiff  for  f  19,000.  De- 
fendant appealed. 

Errors  assigned  were  various  rulings  on  evidence  and 
instructions. 

Wm.  Clarke  Mason,  for  appellant. — The  measure  of 
damage  in  this  case,  if  the  plaintiff  is  entitled  to  recover 
at  all,  must  be  based  upon  evidence  showing  the  earning 
capacity  of  the  decedent  during  the  year  prior  to  his 
death:  Boggess  v.  B.  &  O.  R.  R.  Co.,  234  Pa.  379;  Gil- 
more  v.  Phila.  Rapid  Transit  Co.,  253  Pa.  543. 

Owen  J.  Roberts,  for  appellee. — The  authorities  are 
uniform  to  the  effect  that  where  the  personal  labor  and 


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470       BAXTER  v.  PHILA.  &  &  BY.  CO.,  Appellant 

Arguments — Opinion  of  the  Court.  [264  Pa. 

superintendence  of  the  decedent  were  the  principal  ele- 
t  ments  creating  his  earnings,  even  though  he  had  some 
invested  capital,  the  amount  regularly  contributed  by 
him  to  his  family  which  was  earned  in  his  business  may 
be  proved.  Any  other  rule  would  practically  result  in  a 
verdict  only  for  nominal  damages  in  many  death  cases : 
Buckman  v.  P.  &  B.  By.  Co.,  227  Pa.  277;  Simpson  v. 
Penna.  B.  B.  Co.,  210  Pa.  101;  Wallace  v.  Penna.  B.  B. 
Co.,  195  Pa.  127;  Boggess  v.  B.  &  O.  B.  B.  Co.,  234  Pa. 
379;  McLane  v.  Pitts.  Bys.  Co.,  230  Pa.  29;  Gilmore  v. 
P.  B.  T.  Co.,  253  Pa.  543 ;  Foster  y.  Butler  County  Light 
Co.,  255  Pa.  590. 

Opinion  by  Mb.  Justice  Kephabt,  April  28, 1919 : 
The  facts  presented  by  this  appeal  are  substantially 
the  same  as  those  contained  in  the  appeal  of  Milligan  v. 
Phila.  &  Beading  By.  Co.,  261  Pa.  344.  Baxter,  husband 
of  the  present  appellee,  was  killed  at  Island  Boad  cross- 
ing, Philadelphia,  by  a  collision  between  the  appellant's 
train  and  a  runabout  in  which  he  and  Milligan  were  rid- 
ing. Milligan  was  driving.  From  a  verdict  in  the  wife's 
favor  this  appeal  was  taken.  The  assignments  of  error, 
which  complain  of  the  refusal  of  the  court  below  to 
direct  a  verdict  for  the  defendant  and  to  enter  judgment 
on  its  motion  n.  o.  v.,  are  without  merit. 

An  effort  was  made  to  show  contributory  negligence  on 
the  part  of  Baxter  and  his  companion  Milligan.  Mr.  Jus- 
tice Walling,  in  the  case  of  Milligan  v.  P.  &  B.  By. 
Co.,  supra,  discusses  this  question,  and  there  is  no  evi- 
dence in  the  present  case  to  change  the  conclusion  there 
reached.  Whether  Baxter  could  see  the  train  coming, 
had  he  looked,  or  whether  it  was  too  dark  to  see  it,  were 
questions  for  the  jury  to  determine.  Photographs  were 
received  in  evidence  showing  a  view  of  the  grade  cross- 
ing and  the  tracks  on  a  clear  day.  While  this  might  have 
been  helpful,  the  inquiry  was  more  directly  concerned 
with  the  conditions  existing  on  the  ground  on  the  day 
of  the  accident  and  the  effect  that  the  partial  absence  of 


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BAXTER  v.  PHILA.  &  R.  RY.  CO.,  Appellant.       471 
1919.]  Opinion  of  the  Court. 

daylight  would  have  on  the  conditions  as  there  presented. 
At  the  time  the  accident  occurred  it  was  evening — get- 
ting dusk — and  a  view  along  the  tracks  could  not  be  ob- 
tained for  more  than  several  hundred  feet.  It  was  testi- 
fied that  the  photographs  did  not  represent  all  the  physi- 
cal conditions  on  the  ground  as  they  were  when  Baxter 
was  killed.  The  photographs  then  would  not  be  con- 
trolling, either  as  to  the  extent  of  the  view,  or  that,  under 
all  the  circumstances,  due  care  had  not  been  used  by 
Baxter  and  Milligan.  All  this  was  for  the  jury  under 
proper  instructions  from  the  court,  which  were  given. 

Baxter  was  a  wagon  builder  and  blacksmith ;  his  only 
income  was  from  that  business.  The  machinery  used  in 
connection  with  the  business  consisted  of  a  band  saw, 
planer,  drill  press,  emery  wheel  and  smoothing  iron; 
these  were  driven  by  an  electric  motor,  the  current  for 
which  was  purchased.  Baxter,  the  decedent,  worked  in 
the  shop  like  any  other  employee,  and  also  acted  as  a 
superintendent  in  connection  with  the  general  work.  He 
had  the  assistance  of  his  minor  son  and  four  or  five  em- 
ployees. The  larger  part  of  the  business  was  repair  work. 
While  some  new  wagons  were  constructed,  they  were 
sold  as  rapidly  as  built.  There  was  on  hand,  at  the  time 
of  Baxter's  death,  material  valued  at  $ 2,200,  and  his 
plant  equipment  did  not  represent  an  investment  above 
that  figure.  Out  of  the  income  he  gave  to  his  wife  ap- 
proximately 1 1,800  yearly  for  the  support  of  his  family. 
Evidence  of  the  foregoing  facts  was  offered  for  the  pur- 
pose of  measuring  his  earning  power  and,  as  such,  was 
objected  to  for  the  reason  that  it  did  not  properly  show 
personal  earnings  as  distinguished  from  the  profits  of 
the  business.  In  the  latter  was  included  the  return  from 
a  small  amount  of  capital  invested  and  the  toil  of  others 
which,  with  the  deceased's  earnings,  less  certain  deduc- 
tions for  expenses  made  up  the  net  profits  of  the  plant. 
It  was  from  this  sum  the  wife  was  given  her  allowance 
for  maintenance. 


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472       BAXTER  v.  PHILA.  &  R.  RY.  CO.,  Appellant. 

Opinion  of  the  Court  [264  Fa. 

In  actions  for  personal  injuries,  the  loss  of  earning 
power  is  an  important  element  to  be  considered  in  esti- 
mating the  damages  suffered.  As  stated  in  many  of  our 
cases,  the  value  of  the  earning  power  contemplated  is 
that  resulting  from  the  intellectual  or  bodily  labor  of 
the  injured  party  in  his  business  or  profession.  Profits 
derived  from  invested  capital,  or  the  labor  of  others,  are 
clearly  excluded.  Earnings  are  the  result  of  labor,  the 
price  of  services  performed.  Profits  are  the  net  gains 
from  an  investment  or  the  prosecution  of  some  business : 
Goodhart  v.  Penna.  R.  R.  Co.,  177  Pa.  1,  15.  Profits 
should  not  be  used  as  a  safe  guide  for  measuring  earning 
power,  although  they  may  indicate  the  possession  of 
business  ability  and  qualifications.  Strictly  speaking, 
compensation  for  the  loss  of  earning  power  as  far  as  pos- 
sible should  be  limited  to  earnings  which  are  the  result 
of  personal  effort,  either  physical  or  mental;  in  which 
profits  from  invested  capital  or  profits  from  the  labor  of 
others  must  not  be  included.  Where  it  is  impossible,  in  a 
business  enterprise,  to  distinguish  between  the  personal 
earnings  of  the  individual  and  the  return  from  capital 
invested  and  the  labor  of  others,  the  net  income,  or  net 
result  from  such  business,  cannot  be  considered  in  de- 
termining the  amount  of  damages  to  which  the  claimant 
is  entitled.  But  where  the  predominating  factor  is  the 
directing  intellectual  and  physical  labor  of  the  individ- 
ual, such  business  may  be  characterized  as  personal 
to  that  individual,  though  others  with  tools  and 
equipment  may  aid  in  the  work.  It  is  much  like 
dentists  and  doctors  with  their  instruments,  or 
lawyers  with  their  books,  and  stenographers  and 
assistants.  The  personal  feature  prevails  over  the 
investment  of  an  insignificant  amount  of  capital 
or  labor  employed.  Such  capital  and  labor  are  inci- 
dental, though  important,  to  the  performance  of  the  per- 
sonal services.  It  is  the  latter  which  makes  the  practice 
successful ;  it  is  the  service  of  the  individual  that  is  the 
real  life  of  the  business  or  the  profession. 


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BAXTER  v.  PHILA.  &  R.  RY.  CO.,  Appellant.       473 
1919.]  Opinion  of  the  Court. 

The  idea  of  personal  effort,  physical  and  mental,  is  not 
confined  to  professional  or  similar  services.  It  extends 
to  a  person  engaged  in  a  business,  as  when  the  neighbor- 
hood blacksmith  shoes  a  horse  correctly,  he  may  count 
on  the  continued  patronage  of  the  horse  owner,  though 
in  his  shop  he  may  have  such  assistants  as  his  business 
demands,  and  his  business  thrives  not  only  through  serv- 
ices well  done  and  because  of  personal  friendship  or  re- 
lationship, but  because  it,  or  any  other  like  place,  fills  the 
community  demand.  It  is  the  worth  of  this  individual's 
connection  with  the  business  that  causes  the  trouble  in 
ascertaining  a  fair  criterion  for  estimating  earning; 
power.  The  difficulty  comes,  not  from  expressing  the 
rule  to  govern,  but  in  applying  it  to  a  given  case.  Diffi- 
culties, however,  should  not  prevent  the  application  of 
the  rule  to  a  just  and  reasonable  extent.  It  must  be 
remembered  the  general  rule  is  that  the  worth  of  earning 
power,  as  applied  to  a  business,  must  not  be  made  up 
from  profits,  which  represent  earnings  from  invested 
capital,  or  the  labor  of  others,  or  both. 

In  all  of  the  cases  where  earning  power  may  be  meas- 
ured in  part  by  profits,  it  cannot  be  done  with  the 
certainty  that  a  daily  or  monthly  wage  is  fixed,  either  in 
connection  with  the  business  directly  under  consider- 
ation or  apart  from  and  attached  to  another  business. 
The  yearly  value  of  the  services  of  one  who  owns,  man- 
ages and  labors  with  others,  with  invested  capital,  is  sub- 
ject to  many  conditions  which  do  not  confront  us  in  the 
ascertainment  of  the  earning  power  when  we  consider  a 
monthly  wage,  or  the  earnings  of  professional  men,  or 
men  engaged  in  similar  occupations.  The  owner  of  a 
business  encounters  the  continued  financial  requirements 
of  his  undertaking;  the  effect  of  business  depression, 
with  its  attendant  loss,  the  destroying  influence  of  com- 
petition, labor  conditions,  market  supply,  prices,  and  loss 
through  ordinary  business  attention,  such  as  loss  through 
unwise  contracts,  unused  supplies  or  materials,  etc.,  these 


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474       BAXTER  v.  PHILA.  &  R.  RY.  CO.,  Appellant 

Opinion  of  the  Court  [264  Fa. 

with  other  factors  are  the  deterring  circumstances  in 
business  enterprises. 

With  these  matters  in  view,  the  question  must  then  be 
put :  Would  the  business,  if  no  accident  had  occurred, 
have  the  same  measure  of  success  as  it  always  had;  and 
would  that  success  continue  during  the  remaining 
period  of  the  probable  life  of  the  owner  ?  If  the  answer  is 
in  the  affirmative,  then  there  is  no  loss  on  that  account; 
but,  if  in  the  negative,  then,  since  the  personal  equation 
is  concerned,  these  uncertain  factors  will  not  be  suf- 
ficient to  deprive  the  claimant  of  the  right  to  fair  com- 
pensation for  the  loss  of  earning  power,  where  the  latter 
can  be  fairly  and  approximately  measured. 

The  deceased  was  engaged  in  the  repair  business  and 
occasionally  in  the  manufacture  and  sale  of  a  commodity. 
From  this  business  he  made  a  profit  which  was  not  sub- 
ject to  the  hazard  of  a  strictly  contract  price,  with  its 
accompanying  liability  to  errors  of  judgment,  fluctu- 
ations of  cost,  etc.  This  fair,  average  return,  or  profit, 
was  practically  the  same  for  several  years  before  the  ac- 
cident, under  varying  conditions.  It  was  made  up,  first, 
from  the  intellectual  and  physical  labor  of  the  individual 
as  owner  and  manager;  second,  the  uncertain  return 
from  the  use  of  machinery  and  profits  on  materials  sold, 
or  the  net  return  from  invested  capital;  third,  the  net 
earnings  from  the  labor  of  others.  Was  the  business  then 
of  such  character  that  it  could  be  said  the  earnings  were 
so  mixed  that  it  could  not  be  determined  what  his  services 
were  worth  to  the  conduct  of  the  business  that  he  was 
engaged  in ;  or,  in  other  words,  the  earning  power  of  the 
deceased  could  not  be  fairly  ascertained? 

We  have  intimated  that  the  right  of  the  injured  party 
to  be  compensated  for  loss  of  earning  power  is  a  substan- 
tial one,  and  some  reasonable  and  trustworthy  test  must 
be  adopted  else  he  will  be  wholly  deprived  of  the  value  of 
this  important  element  of  damage.  It  was  not  due  to  the 
deceased's  act  that  such  test  has  been  made  necessary; 
but,  nevertheless,  it  would  be  wrong  to  set  up  a  standard 


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BAXTER  v.  PHILA.  &  R.  RY.  CO.,  Appellant.       475 
1919.  J  Opinion  of  the  Court, 

for  estimating  damages  which  is  fictitious  or  that  does 
not  fairly  represent  what  the  services  are  worth.  If  all 
of  the  yearly  profits  in  cases  similar  to  the  one  under 
discussion  were  used  in  ascertaining  the  total  or  partial 
value  of  earning  power,  there  would  be  included  the 
earning  power  of  others,  as  well  as  that  of  the  individual 
under  consideration,  to  say  nothing  of  the  return,  large 
or  small,  from  the  capital  invested.  "The  loss  of  profits 
in  conducting  a  business  involving  the  labor  of  others  is 
not  a  necessary  consequence  of  personal  injury  to  the 
plaintiff" :  Silsby  v.  Michigan  Car  Co.,  95  Michigan  204. 
Each  case  must  depend  on  the  nature  and  extent  of 
the  business,  the  amount  of  personal  direction  and  labor 
of  the  party  engaged  in  connection  therewith,  as  well  as 
the  amount  of  capital  invested  and  the  labor  employed. 
The  effect  of  the  loss  of  the  individual's  services  to  the 
business  may  be  indicated  by  evidence  pointing  out  the 
pecuniary  loss  sustained  by  reason  of  the  absence,  partial 
or  total,  of  the  personal  attention  and  labor  of  the  indi- 
vidual ;  not  as  definitely  fixing  the  measure  to  value  the 
earning  power,  but  as  an  aid  to  the  jury,  after  consider- 
ing all  the  attendant  circumstances  involved  in  the  busi- 
ness, in  its  effort  to  determine  what  the  measure  should 
be.  Attention  may  be  called  to  all  the  depressing  in- 
fluences to  which  a  business  is  subjected.  If,  because  of 
the  magnitude  and  complexity  of  the  business,  or  through 
death,  or  otherwise,  this  evidence  be  not  available,  then 
the  claimant,  after  fully  describing  the  business  and  the 
injured  person's  connection  therewith,  should  be  per- 
mitted to  show  what  the  services  were  worth  if  employed 
under  like  circumstances  by  another  in  a  similar  ca- 
pacity. 

While  the  evidence  to  show  this  pecuniary  loss,  or  the 
effect  of  the  absence  of  the  personal  attention,  need  not 
be  clear  and  indubitable,  it  should  not  be  a  mere  guess 
or  a  paper  loss ;  it  should  be  shown  to  exist  as  an  actual 
loss.  It  must  necessarily  be  the  subject  of  substantive 
proof,  and  this  evidence  should  be  subject  to  criticism 


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476       BAXTER  v.  PHILA.  &  R.  EY.  CO.,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

from  him  who  must  pay  the  loss,  to  the  end  that  the 
pecuniary  loss  claimed  as  the  standard  should  not  exceed 
that  usually  paid  to  persons  performing  similar  services 
for  others.  Care  must  be  taken  not  to  make  the  responsi- 
ble party  an  insurer  of  prospective  profits.  The  jury 
should  have  the  right  to  consider  this  criticism ;  other- 
wise defendant  would  be  powerless  to  oppose  claims  that 
might  come  within  the  rule,  but  which  experience  teaches 
are  exorbitant.  See  Goodhart  v.  Penna.  R.  R.  Co.,  supra ; 
Wallace  v.  Penna.  R.  R.  Co.,  195  Pa.  127 ;  McLane  v. 
Pittsburgh  Rys.  Co.,  230  Pa,  29;  Buckman  v.  Phila.  & 
Reading  R.  R.  Co.,  227  Pa.  277;  McCracken  v.  Traction 
Co.  (No.  2),  201  Pa.  384;  Boggess  v.  Baltimore  &  Ohio 
R.  R.  Co.,  234  Pa.  379.  A  person  who  has  personal  knowl- 
edge of  the  plaintiff's  business  and  of  the  manner  in 
which  it  was  conducted  and  the  time  and  attention  given 
to  it  may  testify  as  to  what  the  services  are  worth: 
Simpson  v.  Penna.  R.  R.  Co.,  210  Pa.  101. 

In  the  case  now  under  consideration,  the  deceased  con- 
tributed approximately  fl,800  a  year,  for  some  years 
prior  to  his  death,  to  the  support  and  maintenance  of  his 
family ;  this  did  not  represent  the  total  amount  of  earn- 
ings that  had  been  set  aside  as  profits,  for,  out  of  the 
profits,  he  paid  the  installments  due  on  the  building  used 
in  connection  with  this  business  and  for  his  home.  The 
evidence  gives  a  detailed  description  of  the  character  of 
the  business  and  of  the  services  performed  by  the  de- 
ceased and  his  employees.  Statements  from  which  might 
be  found  the  gross  volume  of  business  and  gross  expenses 
as  they  relate  to  the  standard  for  measuring  the  earning 
power  here  claimed,  the  per  cent  of  the  whole  fund  as 
profit,  and  the  part  set  aside  from  that  per  cent  for  some 
years  prior  to  the  deceased's  death.  The  yearly  pecuni- 
ary loss  claimed  was  confined  to  this  $1,800  per  year,  or 
the  amount  set  aside  from  profits  regularly  contributed 
toward  the  support  of  his  family.  Considering  the  capi- 
tal invested,  the  labor  employed,  the  character  of  the 
services  performed  by  deceased,  and  the  earning  realized 


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BAXTER  v.  PHILA.  &  R.  RY.  CO.,  Appellant.       477 
1919.]  Opinion  of  the  Court, 

therefrom,  with  all  the  other  evidence  in  the  case,  the 
yearly  amount  claimed  could  well  have  been  found  as  a 
conservative  estimate  of  the  value  of  his  services  to  his 
business ;  and,  under  the  circumstances,  this  fairly  rep- 
resented a  yearly  amount  which  might  be  accepted  by  the 
jury  as  a  safe  aid  in  fixing  the  loss  of  earning  power. 

We  do  not  wish  to  be  understood  as  holding  that  sums 
given  for  the  support  of  the  family  are  evidence  of  earn- 
ing power,  but  where  a  sum  of  money,  claimed  as  a  yearly 
value  of  earning  power,  is  derived  from  a  business  from 
which  the  claimant  has  his  sole  source  of  income,  and 
this  sum  represents  a  part  of  the  net  earnings  which 
were  produced  through  the  claimant's  personal  direction 
and  superintendency,  and  such  sum  is  not  beyond  what 
his  services  would  be  worth  if  he  were  employed  by  an- 
other in  like  capacity  in  the  same  business,  the  amount  so 
claimed  would  furnish  some  evidence  which  the  jury 
might  consider  in  fixing  the  value  of  earning  power. 
That,  in  point  of  fact,  this  sum  was  given  to  deceased's 
family  for  support  is  not  material ;  for  the  evidence  as  to 
what  was  done  with  the  money  was  not  specifically  ob- 
jected to  on  any  such  ground. 

The  fact  that  his  son  contributed  to  the  business,  in  a 
small  way,  and  was  not  paid  a  salary  or  wage,  does  not 
affect  the  situation.  His  father  supported  him  and  he 
was  entitled  to  his  services  during  minority ;  but  this,  as 
we  have  endeavored  to  show,  like  the  services  of  others, 
is  not  included  in  his  earning  power.  We  do  not  think 
the  court  erred  in  admitting  evidence,  or  in  its  charge  to 
the  jury. 

The  third  and  ninth  points,  as  presented,  assumed,  as 
undisputed,  evidence  clearly  in  dispute,  as  we  have  al- 
ready pointed  out.  In  fact  the  case  hinged  to  a  great  ex- 
tent on  this  evidence.  The  points  could  not  have  been  un- 
qualifiedly affirmed.  If  the  time  of  day  had  permitted  a 
photograph  to  be  taken  that  would  represent  the  con- 
ditions as  they  were  at  the  time  of  the  accident,  this  evi- 
dence might  have  been  more  persuasive.    The  court  did 


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478       BAXTER  v.  PHILA.  &  R.  RY.  CO.,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

not  err  in  its  answer  to  these  points.  As  the  court  had 
in  its  general  charge  instructed  the  jury  as  to  the  head- 
light it  was  not  error  then  to  refuse  a  point  which  was 
substantially  a  repetition  of  what  was  covered  By  that 
charge.  We  have  considered  the  remaining  assignments 
of  error,  and  find  no  merit  in  them;  they  do  not  require 
discussion. 

All  the  assignments  are  overruled  and  the  judgment  is 
affirmed. 

See  Dempsey  v.  Scranton,  infra,  495. 


Fox's  Estate. 

Trust*  and  trustees— Spendthrift  trust—Active  trust— Husband 
as  trustee  and  beneficiary. 

Where  property  is  given  to  an  executor  with  certain  duties  to  per- 
form, impressed  with  a  spendthrift  trust,  to  pay  to  himself  as  an 
individual  the  income  for  life,  and  at  his  death  the  estate,  corpus 
and  income,  goes  to  his  children,  or  others,  the  trust  estate  in  the 
corpus  and  in  the  income  is  not  in  any  manner  destroyed,  nor  does 
the  necessity  for  its  existence  cease  during  the  life  estate.  The  in- 
come still  remains  the  testator's  property  until  it  is  actually  paid 
to  the  beneficiary. 

Argued  Feb.  10, 1919.  Appeal,  No.  38,  Jan.  T.,  1919, 
by  Walter  T.  Lee,  from  decree  of  O.  C.  Delaware  Co.,  No. 
10875, 1917,  dismissing  petition  to  compel  the  executor  to 
file  an  inventory  and  appraisement  in  Estate  of  Eliza 
Landell  Fox.  Before  Brown,  C.  J.,  Stewart,  Frazbr, 
Simpson  and  Kbphart,  JJ.    Affirmed. 

Petition  to  compel  Henry  K.  Fox,  executor  of  estate  of 
Eliza  Landell  Fox  to  file  an  inventory  and  appraisement. 
Before  Johnson,  P.  J. 

The  court  dismissed  the  petition.  Walter  T.  Lee,  pe- 
titioner, appealed. 

Error  assigned  was  decree  dismissing  the  petition. 

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FOX'S  ESTATE.  479 

1919.]  Arguments — Opinion  of  the  Court 

J.  Newton  Peck  and  Josiah  Smith,  for  appellant. — No 
valid  spendthrift  trust  of  income  can  be  created  where 
the  sole  trustee  is  also  the  cestui  que  trust  with  the  abso- 
lute ownership  of  the  entire  income  of  the  trust  during 
his  life:  Ashhurst  v.  Given,  5  W.  &  S.  323;  Brown  et  al. 
v.  Williamson's  Executors,  36  Pa.  338;  Overman's  App., 
88  Pa.  276;  Wanner  v.  Snyder,  177  Pa.  208;  Denniston 
et  al.  v.  Pierce  et  al.,  260  Pa.  129;  Hance's  Est,  69  Pa- 
Superior  Ct.  432. 

The  spendthrift  trust  is  invalid  and  illegal  in  so  far  as 
it  covers  the  net  income  and  profits  for  life  to  Henry  K. 
Fox.  He  is  sole  trustee  and  is  also  sole  cestui  que  trust 
as  to  the  entire  net  income  and  profits  of  the  trust  estate 
during  his  life.  It  follows  that  he  is  absolute  owner  of 
all  the  income  of  the  entire  property  to  accrue  during  his 
life:  Wanner  v.  Snyder,  177  Pa.  208;  Hahn  v.  Hutchin- 
son, 159  Pa.  133;  Ellwanger  v.  Moore,  206  Pa.  234; 
Hance's  Est.,  69  Pa.  Superior  Ct.  432;  Denniston  v. 
Pierce,  260  Pa.  129. 

V.  Oilpin  Robinson,  for  appellee,  cited:  Overman's 
App.,  88  Pa.  276. 

Opinion  by  Mb.  Justice  Kbphabt,  April  28, 1919: 
The  will  of  the  testatrix  devised  the  residue  of  her 
estate  to  her  executor  to  pay  the  income  and  net  profits, 
subject  to  a  spendthrift  trust,  to  her  husband  for  and 
during  his  life,  and  at  his  death  the  income  to  be  paid 
to  her  two  children,  in  equal  parts,  under  the  same  char- 
acter of  trust,  with  the  right  of  survivorship  in  case  any 
child  should  die  without  issue.  The  husband,  Henry  K. 
Pox,  was  named  as  executor  and  it  is  the  contention  of 
the  appellant  that  no  spendthrift  or  other  trust  can  be 
created  where  the  sole  trustee  is  also  the  cestui  que  trust, 
the  absolute  ownership  of  the  entire  income  of  the  trust 
during  his  life  being  in  the  beneficiary.  This  objection 
does  not  correctly  state  the  situation.  The  trustee  is  not 
only  trustee  for  himself,  but  he  is  trustee  for  the  remain- 


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480  FOX'S  ESTATE. 

Opinion  of  die  Court  [264  Pa. 

dermen,  and  there  could  be  no  objection  to  the  present 
willy  and  the  disposition  of  the  income  as  therein  direct- 
ed, if  some  other  person  had  been  named  as  trustee. 

Cestuis  que  trust  are  not,  as  such,  incapacitated  from 
being  trustees  for  themselves  and  others;  but,  as  a  gen- 
eral rule,  they  are  not  altogether  fit  persons  for  the  of- 
fice, in  consequence  of  the  probability  of  a  conflict  be- 
tween their  interest  and  their  duty:  Lewin  on  Trusts, 
Vol.  I,  Sec.  40;  Perry  on  Trusts,  Sees.  59  and  297.  But, 
it  has  been  stated  with  great  positiyeness  that  the  same 
person  cannot  be  both  trustee  and  beneficiary.  Where 
the  trustee  is  made  beneficiary  of  the  same  estate,  both 
in  respect  to  its  quality  and  quantity,  the  inevitable  re- 
sult is  that  the  equitable  is  merged  into  the  legal  so  that 
the  latter  alone  remains.  Such  was  Hahn  v.  Hutchinson, 
159  Pa.  133.  This  doctrine  results  more  from  the  merger 
than  from  any  incompatability  of  interest  between  the 
trustee  and  cestui  que  trust.  In  distinguishing  between 
active  and  passive  trusts,  "in  the  former  case,  equity 
preserves  the  trust  to  give  effect  to  the  donor's  right  of 
dominion  over  his  property,  and  in  the  latter,  in  favor  of 
public  policy,  permits  it  to  fall  as  useless" :  Dodson  v. 
Ball,  60  Pa.  492,  497.  But  the  prohibition  against  the 
dual  relationship  is  directed  against  the  same  interest 
and,  therefore,  a  cestui  que  trust  is  not  absolutely  exclud- 
ed from  occupying  the  office  of  trustee,  especially  where 
he  is  one  of  several  trustees,  or  where  he  is  trustee  for 
himself  and  others.  But  where  property  is  given  to  an 
executor  with  certain  duties  to  perform,  impressed  with 
a  spendthrift  trust,  to  pay  to  himself  as  an  individual  the 
income  for  life,  and  at  his  death  the  estate,  corpus  and 
income  goes  to  his  children,  or  others,  the  trust  estate  in 
the  corpus  and  in  the  income  is  not  in  any  manner  de- 
stroyed, nor  does  the  necessity  for  its  existence  cease  dur- 
ing the  life  estate.  The  income  still  remains  the  testa- 
tor's property  until  it  is  actually  paid  to  the  beneficiary. 
There  is  no  merger  of  interest  in  the  trustee  arising  out 
of  the  fact  that  he  is  also  a  beneficiary.    The  trust  is  an 


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POX'S  ESTATE.  481 

1919.]  Opinion  of  the  Court, 

active  one  and  lie  is  certainly  competent  to  act  as  trustee 
for  the  preservation  of  the  fund  for  the  remaindermen.  . 
He  holds  possession,  invests  the  money,  manages  the  • 
estate  and,  if  there  is  real  estate,  leasgf  it;  naturally  ! 
making  repairs  from  the  income  that  inure  to  the  bene-  i 
fit  of  the  remaindermen.    If  another  so  acts,  he  would  be  - 
entitled  to  compensation.   As  it  is,  the  expense  of  admin*  \ 
istration  is  small,  a  thing  to  be  considered.    He  is  re- 
quired to  administer  the  trust  so  as  not  to  jeopardize  the 
interest  of  the  remaindermen,  or  cause  a  devastavit,  and 
may,  for  cause  shown,  be  superseded  by  another ;  as  the 
spendthrift  trust  is  lawful  and,  as  there  are  trust  inter- 
ests in  remainder  to  protect,  equity  will  not  permit  the 
estate  to  lapse  for  want  of  a  trustee.    If  the  trustee  here 
named  is  not  a  proper  party,  the  court  could  intervene 
and  appoint  a  successor.     The  testatrix  selected  her 
husband  as  the  trustee  to  preserve  the  estate  for  their 
children  and  we  know  of  no  good  reason  why  the  selection 
is  not  valid. 

In  conclusion,  this  estate  was  not  devised  as  a  freehold 
estate  with  the  condition  that  it  should  not  be  liable  for 
the  devisee's  debt,  as  was  done  in  Ehrisman  v.  Sener  et 
al.,  162  Pa.  577;  Morgan's  Est.  (No.  1),  223  Pa.  228; 
Breinig  v.  Oldt,  45  Pa.  Superior  Ct.  629;  and  where  the 
subsequent  disposition  of  the  property  was  left  to  the  de- 
visee, as  was  said  in  Hahn  y.  Hutchinson,  supra  (141) : 
"The  whole  course  of  reasoning  is  that  a  man  shall  not 
be  the  real  owner  of  property  with  full  right  to  deal  with 

it  as  he  pleases and  keep  the  same  free  from  the 

claims  of  his  creditors."  Here  the  residue  was  devised  to 
the  executor  in  trust  with  certain  defined  duties  to  per- 
form, all  of  which  were  for  the  benefit  of  the  corpus  of  the 
estate  as  it  will  ultimately  reach  the  remaindermen.  It 
was  just  as  much  an  active  trust  as  that  upheld  in  Wan- 
ner et  al.  v.  Snyder,  177  Pa.  208. 

The  decree  dismissing  the  petition  is  affirmed,  at  the 
cost  of  the  appellant. 

Vol.  cclxiv — 31 

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482  HAUGHNBY,  Appellant,  v.  MAHANOY  C.  BORO. 

Syllabus— Arguments.  [264  Pa. 

Haughney,  Appellant,  v.  Mahanoy  City  Borough. 

Negligence — Borough* — Creek  in  middle  of  street — Safer  route — 
Failure  to  look — Contributory  negligence — Province  of  court. 

Although  a  borough  may  be  grossly  negligent  in  failing  to  main- 
tain guards  along  a  creek,  which  flows  through  the  middle  of  a 
street,  yet  a  woman  pedestrian  cannot  recover  damages  from  the 
borough  for  injuries  sustained  by  falling  into  the  creek  on  a  dark 
night,  where  it  appears  that  she  was  familiar  with  the  street,  that 
she  had  three  other  routes  safer  and  better  lighted  which  she  might 
have  taken,  and  that  she  testifies  that  she  did  not  look  to  see  where 
she  was  going,  that  she  knew  of  the  open  stream  in  the  middle  of 
the  street,  but  that  she  did  not  look  for  it 

Argued  Feb.  18, 1919.  Appeal,  No.  221,  Jan.  T.  1919, 
by  plaintiff,  from  judgment  of  C.  P.  Schuylkill  Co.,  Sept. 
T.,  1916,  No.  27,  for  defendant  n.  o.  v.,  in  case  of  Catha- 
rine Haughney  v.  Mahanoy  City  Borough.  Before 
Beown,  C.  J.,  Stewart,  Mosohziskbb,  Walling  and 
Kbphabt,  JJ.    Affirmed. 

Trespass  to  recover  damages  for  personal  injuries. 
Before  Koch,  J. 

At  the  trial  the  jury  returned  a  verdict  for  plaintiff 
for  $ 5,000.  Subsequently  the  court  entered  judgment  for 
defendant  n.  o.  v.   Plaintiff  appealed. 

Error  assigned  was  in  entering  judgment  for  defendant 
n.  o.  v. 

A.  D.  Knittle,  for  appellant. — That  plaintiff  knew  of 
the  danger  does  not  convict  her  of  contributory  negli- 
gence, if  the  danger  was  of  such  a  character  that  it  was  not 
inevitable  that  in  taking  that  street  she  must  encounter, 
and  test  the  danger:  Rick  v.  Wilkes-Barre,  9  Pa.  Su- 
perior Ct.  399;  Wertz  v.  Girardville  Borough,  30  Pa. 
Superior  Ct.  260;  Borough  of  Easton  v.  Neff,  102  Pa. 


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HAUGHNEY,  Appellant,  v.  MAHANOT  C.  BOEO.  483 

1919.]  Arguments — Opinion  of  the  Court 

474;  McCue  v.  Knoxville  Borough,  146  Pa.  580;  Porker 

v.  Sandy  Lake  Borough,  130  Pa.  123. 

John  F.  Whalen,  with  him  George  Ellis,  for  appellee. 
— We  submit  that  there  can  be  no  question  that  on  the 
plaintiff's  testimony  she  made  a  clear  admission  of  negli- 
gence in  her  effort  to  travel  Market  street  on  the  night  in 
question:  Dougherty  v.  Phila.,  210  Pa.  591;  Watts  v. 
Plymouth  Borough,  255  Pa.  185. 

Opinion  by  Mr.  Chief  Justice  Beown,  April  28, 1919 : 
Mahanoy  City  Borough  is  a  populous  town.  Market  or 
Water  street  runs  through  it  from  east  to  west,  and 
Mahanoy  creek  flows  along  the  middle  of  this  street 
throughout  its  entire  length.  The  creek — about  sixteen 
feet  wide — is  from  seven  to  eleven  feet  below  the  surface 
of  the  street,  on  each  side  of  which  there  is  a  roadway 
about  sixteen  feet  wide.  On  each  side  of  the  creek  there 
is  a  retaining  wall  reaching  almost  to  the  surface  of  the 
street,  but  there  are  no  barriers  or  guards  of  any  kind 
along  these  walls  for  the  protection  of  pedestrians  or 
travellers  on  the  street.  On  the  night  of  March  22, 1915, 
between  eight  and  nine  o'clock,  the  plaintiff,  a  woman  of 
about  sixty  years  of  age,  while  walking  along  the  north 
side  of  Market  street,  fell  over  the  retaining  wall  into  the 
creek,  and  to  recover  damages  for  the  injuries  sustained 
she  brought  this  action,  charging  as  the  proximate  cause 
of  them  the  negligence  of  the  city  in  failing  to  maintain 
proper  guards  along  the  walls.  A  verdict  resulted  in  her 
favor,  but  judgment  was  subsequently  entered  for  the  de- 
fendant non  obstante  veredicto,  on  the  ground  of  her  con- 
tributory negligence.  That  the  borough  was  grossly,  crim- 
inally negligent  in  failing  to  guard  Market  street  prop- 
erly on  each  side  of  Mahanoy  creek  is  beyond  all  doubt, 
and  what  we  said  of  a  situation  somewhat  similar,  but 
not  nearly  so  bad,  may  well  be  repeated  here :  "The  testi- 
mony discloses  the  grossest  carelessness  on  the  part  of 
the  borough  authorities  in  maintaining  a  dangerous  pit- 


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484  HAUGHNET,  Appellant,  v.  MAHANOY  C.  BOBO. 

Opinion  of  the  Court.  [204  Pa. 

fall,  within  the  lines  of  the  street,  which  the  judicious 
expenditure  of  a  few  dollars  could  have  obviated :  Cor- 
balis  v.  Newberry  Township,  132  Pa.  9.  If  those  whose 
duty  it  is  to  keep  public  highways  in  a  reasonably  safe 
condition  for  public  use  were  properly  dealt  with  and 
adequately  punished  for  their  negligence,  there  would 
be  fewer  nuisances  and  mantraps  maintained  in  public 
streets  and  highways" :  Merriman  v.  Phillipsburg  Bor- 
ough, 158  Pa.  78. 

Judgment  was  entered  for  the  defendant  in  view  of 
what  the  court  below  regarded  as  the  plaintiffs  "un- 
doubted contributory  negligence."  No  other  conclusion 
was  possible.  In  the  opinion  sustaining  defendant's 
motion  for  judgment  the  learned  court  quoted  page  after 
page  from  the  testimony  of  the  plaintiff,  demonstrating 
beyond  all  doubt  that  she  had  contributed  by  her  own 
carelessness  to  the  injuries  she  sustained.  On  this  ap- 
peal we  shall  quote  briefly,  but  sufficiently,  from  her  tes- 
timony to  show  that  her  unfortunate  fall  was  certainly 
due  to  a  lack  of  proper  care  on  her  part  as  she  was  walk- 
ing along  Market  street  at  night  on  her  way  to  her  home. 

The  appellant  lived  on  Mahanoy  avenue — the  second 
street  south  of  and  parallel  to  Market  street.  Her  home 
was  about  a  square  and  a  half  southeast  of  where  she  fell 
into  the  creek.  She  had  lived  in  Mahanoy  City  for  more 
than  forty-five  years,  and  was  thoroughly  familiar  with 
that  portion  of  the  town  through  which  the  creek  flowed. 
For  five  years  her  home  had  been  on  Market  street.  On 
the  evening  she  was  injured  she  left  her  residence  to  ac- 
company home  a  visitor  who  lived  north  of  Market 
street.  They  crossed  that  street  at  its  intersec- 
tion with  Main  street,  where  the  creek  was  bridged 
over,  and  proceeding  to  Center  street — the  first  street 
north  of  Market — turned  to  the  west  and  walked 
three  squares  to  Catawissa  street,  where  they  separated, 
the  appellant  starting  to  return  home.  She  could  have 
gone  safely  back  by  the  way  she  came,  or  she  might  have 
taken  two  other  perfectly  safe  routes,    Each  of  the  three 


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HAUGHNEY,  Appellant,  v.  MAHANOY  C.  BORO.  485 
1919.]  Opinion  of  the  Court, 

would  have  been  over  lighted  streets,  but  instead  of  tak- 
ing a  safe  route,  she  proceeded  down  Catawissa  street, 
and,  upon  reaching  Market  street,  turned  eastward  and 
proceeded  a  short  distance  along  that  unlighted  street, 
with  which,  however,  she  was  thoroughly  familiar.  In 
a  moment  or  two  after  she  entered  it  she  fell  into  the 
creek.  We  now  quote  from  her  testimony,  indicating 
most  clearly  that  from  the  time  she  entered  the  street 
until  she  fell  into  the  run,  she  had  failed  to  ex- 
ercise any  care  at  all,  though  it  was  her  plain  duty  to  be 
careful  in  walking  along  what  she  well  knew  was  an  un- 
guarded dangerous  wall,  slightly  below  the  surface  of  the 
street:  "Q.  Was  it  very  dark?  A.  Yes,  it  was  dark. 
Q.  It  was  so  dark  that  you  could  not  see  the  road ;  you 
could  not  see  the  stone  wall?  A.  I  did  not  look  to  see  it. 
I  did  not  look  to  see  a  stone  wall  or  anything  else.    I  am 

not  saying  I  did  not  see  it Q.  I  say,  was  it  because 

it  was  dark  that  you  could  not  see  the  stone  wall?  A.  I 
told  you  I  did  not  look  to  see.  Q.  Did  not  look  to  see? 
A.  No,  sir.    I  thought  I  was  right,  as  1^  told  you  before. 

Q.  How  was  it  you  did  not  see  that  stone  wall 

until  you  were  within  a  foot  or  a  foot  and  a  half  back  of 
it?  A.  I  did  not  look  to  see  it.  I  told  you  where  I  was 
going.  I  did  not  look  for  a  stone  wall.  Q.  But  you  did 
know  that  there  was  a  part  of  the  water  oourse  through 
the  town  open?  A.  Yes.  Q.  That  it  was  closed  up  on 
the  sides  with  stone  walls  and  the  top  was  open,  you 

knew  that,  did  you  not?  A.  Yes,  sir,  I  did Q.  Then 

you  went  along  Water  street  on  the  left-hand  side  going 
toward  Main  street  without  looking  to  see  whether  you 
were  at  the  point  where  the  culvert  was  open  or  closed, 
is  that  right?  A.  I  told  you  before  I  was  going  to  the 
paved  part  of  the  street,  and  thought  I  was  right  and 

wanted  to  cross  that A.  I  was  not  looking  to  going 

into  the  creek.  I  did  not  look  for  the  creek."  In  the 
face  of  the  foregoing  clear  admissions  by  the  plaintiff 
that  she  was  not  looking  where  she  was  going,  when  the 
duty  of  doing  so  rested  upon  her,  the  court  below  would 


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486  HAUGHNEY,  Appellant,  v.  MAHANOY  C.  BOBO. 

Opinion  of  the  Court  [264  Pa. 

have  erred  if  it  had  not  held  that  she  had  been  negligent 
as  a  matter  of  law,  and  the  judgment  non  obstante  vere- 
dicto was  properly  entered :  Bobb  v.  Connellsville  Bor- 
ough, 137  Pa.  42;  Lumis  v.  Phila.  Traction  Company, 
181  Pa.  268;  Sickels  v.  Phila.,  209  Pa.  113;  Dougherty 
v.  Phila.,  210  Pa.  591. 

The  assignments  of  error  are  overruled  and  the  judg- 
ment is  affirmed. 


ChappelTs  Estate. 

Decedents'  estates — Widow's  exemption  and  allowance— Bill  of 
review — Mistake — Laches — Orphans'  court — Powers — Act  of  Oct 
18,  1840. 

1.  A  bill  of  review  will  be  allowed  by  the  orphans'  court  to  permit 
a  widow  to  claim  her  exemption  of  $800,  and  her  allowance  of 
$5,000  under  the  Act  of  1909,  where  it  appears  that  the  executor 
upon  whom  the  widow  relied,  was  absent  from  the  audit  on  military 
service,  that  the  widow  was  not  represented  by  counsel,  that  her 
claim  was  not  considered  by  the  auditing  judge,  that  the  shares 
of  stock  which  had  been  ordered  to  be  distributed  had  been  vol- 
untarily surrendered  without  change  to  an  officer  of  the  court; 
that  the  rights  of  third  parties  had  not  intervened ;  that  the  widow 
moved  within  a  month  for  a  review;  and  had  promptly  notified  the 
company  issuing  the  stock  not  to  transfer  it. 

2.  The  orphans'  court  has  power  not  only  under  the  Act  of  Oct. 
18,  1840,  P.  L.  1,  but  under  its  inherent  power,  to  correct  an  er- 
roneous decree.  Under  such  power  it  may  even  protect  parties 
from  their  own  mistakes  and  blunders,  where  no  rights  have 
changed  in  consequence  of  the  decree. 

Argued  Feb.  24, 1919.  Appeal,  No.  257,  Jan.  T.,  1919, 
by  Stephen  Chappell,  Trustee,  from  decree  of  O.  C.  Lack- 
awanna Co.,  No.  102,  Year  1916,  allowing  bill  of  review 
in  re  Estate  of  Henry  Chappell,  deceased.  Before 
Brown,  C.  J.,  Stewart,  Mosohziskbr,  Frazbr  and  Kbp- 
hart,  JJ.    Affirmed. 

Petition  for  bill  of  review.    Before  Sando,  P.  J. 
The  court  allowed  the  review.    Stephen  Chappell,  trus- 
tee, appealed. 


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CHAPPBLL  'S  ESTATE.  487 

1919.]       Assignment  of  Error — Opinion  of  the  Court. 
Error  assigned  was  the  decree  allowing  the  review. 

A.  A.  Vosburg,  for  appellant. 

H.  M.  Streeter,  for  appellee. 

Opinion  by  Mb.  Justice  Kbphabt,  April  28, 1919 : 
The  appellee's  petition  for  review  of  the  adjudication 
sets  forth  that,  by  inadvertence  and  mistake,  the  widow's 
exemption  of  $300,  with  other  items  named  by  her,  had 
been  omitted  in  final  settlement  and  were  not  considered 
by  the  auditing  judge.  The  court  below  ordered  a  re- 
audit  and  we  have  this  appeal  from  the  final  decree  in  the 
reaudit     The  only  matter  raised  by  the  statement  of 

questions  involved  is :  "Should  a  review .be  granted, 

where  there  is  no  error  of  law  appearing"  in  the  distri- 
bution report,  "and  no  new  evidence  alleged";  and 
"should  such  review  be  granted  where  distribution  has 
actually  been  made  before  the  petition  was  presented?" 
Appellant's  sole  question,  argued  orally  and  in  the  paper- 
book,  is  the  legality  of  the  order  to  review. 

It  was  a  proceeding  in  the  orphans'  court  controlled  by 
the  equitable  principles  that  should  guide  a  judge  sitting  * 
as  a  chancellor  in  hearing  and  determining  like  matters : 
Whelen's  App.,  70  Pa.  410,  428;  Carney  v.  Merchants' 
Union  Trust  Co.,  252  Pa.  381,  385.  It  has  statutory  en- 
actment for  its  authority.  The  Act  of  Oct.  13,  1840- 
1841,  P.  L.  1,  permits  such  proceeding  in  the  orphans' 
court  where  errors  are  alleged  in  the  distribution  or  set- 
tlement of.  an  estate  within  five  years  after  final  decree, 
provided  the  balance  of  the  fund  due  shall  not  have  been 
paid  and  discharged.  But  the  power  is  inherent  in  the 
orphans'  court  to  correct  an  erroneous  decree  independ- 
ent of  the  Act  of  1840 :  Young's  App.,  99  Pa.  74 ;  Milne's 
App.,  99  Pa.  483.  The  court  may  correct  its  records  in 
the  interest  of  justice,  even  to  protect  parties  from  their 
own  mistakes  and  blunders,  and  where  no  rights  have 
changed  in  consequence  of  the  decree ;  this  power  of  cor- 


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488  CHAPPELL  »S  ESTATE. 

Opinion  of  the  Court  [264  Pa. 

rection  will  be  liberally  exercised:  Sloan's  Est.,  254  Pa. 
346,  350. 

At  the  first  audit,  the  balance  due,  which  was  made  up 
of  stock  in  a  company,  was  distributed  in  kind.  It  was 
duly  assigned  by  the  executor,  handed  to  the  trustee 
named  to  receive  it,  and  given  by  him  to  the  president  of 
the  company  for  transfer  and  the  issuance  of  a  new  cer- 
tificate. Complaint  having  been  lodged  against  the 
transfer  by  the  widow,  it  was  returned  to  the  trustee. 
Soon  thereafter  this  petition  for  a  review  was  presented 
and  the  stock,  by  agreement,  deposited  with  an  officer 
of  the  court  to  await  the  determination  of  the  question 
here  involved.  The  evidence  shows  that  the  widow  under- 
stood her  claims  for  $300  exemption  and  for  $5,000  al- 
lowance, under  the  Act  of  1909,  were  both  being  con- 
sidered by  the  court  in  the  first  audit;  and  was  not 
aware  of  anything  to  the  contrary  until  some  days  there- 
after. The  executor,  who  advised  her,  having  been  called 
into  the  military  service  of  the  United  States  govern- 
ment, she  was  not  represented  by  counsel  at  the  first 
audit.  There  is  not  the  slightest  pretense  that  her  claims 
were  then  considered  by  the  auditing  judge;  and  he  ex- 
pressly finds  they  were  not.  The  property  directed  to  be 
distributed  was  voluntarily  surrendered,  its  character 
had  not  changed,  the  rights  of  third  parties  had  not  inter- 
vened, and  no  rights  whatever  were  prejudiced  by  the 
action  of  the  court.  As  the  first  decree  of  distribution 
was  confirmed  absolutely  on  December  8th,  and  the 
widow  moved  to  have  the  audit  reviewed  in  the  follow- 
ing month,  having  meanwhile  served  notice  oni  the  com- 
pany not  to  transfer  the  stock,  she  should  not  be  found 
guilty  of  laches  in  her  efforts  to  secure  a  readjudication. 
It  was  clearly  a  case  which  called  for  correction,  other- 
wise a  palpable  wrong  would  have  been  done.  The 
court  below  did  not  err  in  ordering  the  reaudit. 

The  decree  is  affirmed  at  the  cost  of  the  appellant. 


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STATE  LINE  &  SULLIVAN  R.  R.  CO.'S  TAXATION.  489 
1919.]  Syllabus— Statement  of  Facta. 

State  Line  &  Sullivan  B.  E.  Co.'s  Taxation. 

Taxation — Coal  lands — Appraisement — Foot  acres  standard — Act 
of  April  19, 1889,  P.  L.  37. 

1.  While  the  foot  acre  is  not  the  usual  standard  employed  in 
arriving  at  the  value  of  lands  for  the  purpose  of  assessment,  it  will 
be  accepted  where  the  parties  have  agreed  to  it,  or  do  not  object 
to  its  use. 

2.  The  parties  on  appeal  from  a  tax  assessment  of  coal  lands  by 
the  board  of  revision,  are  not  bound  to  adopt  the  method  used  by 
the  board;  any  fair  reasonable  basis  will  be  sufficient,  if  the  result 
enlightens  the  court  as  to  the  value  required  by  law. 

3.  The  board  of  revision  must  inquire  whether  the  assessment 
has  been  made  according  to  law,  and  the  property  to  be  valued  has 
been  so  valued  at  a  price  or  sum  not  less  than  it  would  bring  at  a 
public  sale  after  due  notice.  If  the  board  omits  by  mistake  a  part 
of  the  acreage,  the  court  of  common  pleas,  on  appeal,  has  jurisdic- 
tion under  the  Act  of  April  19,  1889,  P.  L.  37,  to  add  the  omitted 
acreage.    In  such  a  case  the  amount  is  increased,  but  not  the  value. 

4.  It  is  not  the  policy  of  the  law  to  permit  persons  to  escape  tax- 
ation through  an  omission  by  the  assessor  to  place  a  property  in 
assessment.  That  such  result  may  not  be  accomplished,  courts  will 
give  a  liberal  construction  to  those  acts  which  tend  to  an  equali- 
zation of  the  burden  of  taxation. 

5.  In  making  the  assessment  the  taxing  authorities  may  consider 
what  has  been  the  average  yearly  output  of  coal  for  several  years 
preceding,  the  total  amount  of  coal  originally  contained  in  the 
tract,  what  remains  unmined  at  the  time  of  the  assessment,  the 
amount  of  the  royalties,  if  the  property  is  under  lease,  and  the  num- 
ber of  years  it  will  probably  take  to  exhaust  the  coal.  If  it  appears 
that  the  owners  are  carrying  away  coal  which  is  free  from  taxation 
at  the  rate  of  thirty-two  acres  per  year,  they  have  nothing  of  which 
to  complain. 

Argued  March  17,  1919.  Appeal,  No.  193,  Jan.  T., 
1919,  by  The  State  Line  &  Sullivan  Railroad  Company 
and  The  Connell  Anthracite  Mining  Co.,  from  decree  of 
C.  P.  Sullivan  Co.,  Sept.  T.,  1916,  No.  1,  fixing  value  of 
coal  lands  for  tax  purposes  in  re  Assessment  and  Valu- 
ation of  Certain  Lands  of  The  State  Line  &  Sullivan 
Railroad  Company  and  The  Connell  Anthracite  Mining 


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490  STATE  LINE  &  SULLIVAN  R.  R.  CO.'S  TAXATION. 

Statement  of  Facts — Arguments.  [264  Pa. 

Company.     Before    Stewart,    Moschziskeb,    Frazbr, 
Walling  and  Kephart,  JJ.  Affirmed. 

Appeal  from  decision  of  county  commissioners  acting 
as  a  board  of  revision  of  taxes  refusing  to  reduce  the  as- 
sessment upon  a  number  of  tracts  of  coal  lands,  for  the 
triennial  assessment  for  the  year  1916.  Before  Terry, 
P.  J. 

The  court  entered  a  decree  fixing  the  assessment  at  $  100 
per  foot  acre,  and  adding  some  tracts  omitted  by  mis- 
take by  the  board  of  revision. 

The  railroad  company  and  the  mining  company  ap- 
pealed. 

Error  assigned  was  the  decree  of  the  court. 

E.  J.  Mullen,  for  appellants. — The  evidence  does  not 
sustain  the  finding  of  the  court  below  that  the  market 
value  of  the  coal  on  these  tracks,  separately  assessed,  is 
one  hundred  and  twenty-five  dollars  per  foot  acre :  Le- 
high Valley  Coal  Co.  v.  Luzerne  County,  255  Pa.  17: 
Lehigh  Valley  Coal  Co.  v.  Northumberland  County  Com- 
missioners, 250  Pa.  515;  Baker  v.  Pittsburgh,  etc.,  B.  B. 
Co.,  219  Pa.  398. 

The  court  had  no  power  to  increase  the  assessed  valu- 
ation of  a  foot  acre  of  coal  in  these  tracts  from  eighty 
dollars,  the  amount  fixed  by  the  county  commissioners 
sitting  as  a  board  of  revision  and  appeal,  to  one  hundred 
dollars,  the  amount  fixed  by  the  decree. 

The  court  below  had  no  power  or  authority  to  raise  the 
assessed  valuation  of  the  Samuel  Carpenter  and  Thomas 
Odian  warrants  above  the  amounts  fixed  by  the  board  of 
revision  and  appeal:  Com.  ex  rel.  v.  Hanna,  17  D.  B. 
308;  Lehigh  &  Wilkes-Barre  Coal  Co.'s  Assessments, 
225  Pa.  272 ;  In  re  Irwin  Basin  Coal  Lands,  17  D.  B.  825 ; 
Drake  v.  Northampton  Co.,  14  D.  B.  688;  Central  Penna. 
Lumber  Co.'s  App.,  232  Pa.  191. 

Rodney  A.  Mercur,  with  him  F.  W.  Meylert,  County 
Solicitor,  and  J.  H.  Thayer,  for  appellee. — The  appel- 


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STATE  LINE  &  SULLIVAN  R.  R.  CO.'S  TAXATION.  491 
1919.]  Arguments — Opinion  of  the  Court, 

lants  challenge  the  power  and  authority  of  the  court  be- 
low to  raise  the  assessed  valuation  of  a  tract  of  land 
above  the  amount  fixed  by  the  board  of  revision. 

The  appellee  claims  that  that  question  has  been  set- 
tled in  Pennsylvania  Coal  Company's  Assessment,  267 
Pa.  320. 

Opinion  by  Mb.  Justice  Kbphabt,  April  28, 1919 : 
This  is  an  appeal  from  a  final  decree  of  the  court  below 
fixing  the  value  of  the  appellants'  real  estate  at  a  trien- 
nial assessment  for  the  purpose  of  taxation.  The  lands 
affected  lie  in  Sullivan  County  and  are  partly  underlaid 
with  coal.  The  acreage,  character  and  quality  of  the 
coal  are  not  here  disputed,  nor  is  the  thickness  of  the 
veins.  The  trial  judge  adopted  the  value  of  the  foot  acre 
as  the  unit  to  fix  the  value  of  the  land;  the  county  com- 
missioners, as  a  board  of  revision,  used  the  superficial 
acre  value  as  such  unit.  While  the  foot  acre,  as  we  have 
said  in  other  cases,  is  not  the  usual  standard  employed 
in  arriving  at  the  value  of  lands  for  the  purpose  of  as- 
sessment, it  will  be  accepted  where  the  parties  Ijave 
agreed  to  it,  or  do  not  object  to  its  use;  and,  as  evidence 
of  appellants'  consent,  they  requested  the  following  find- 
ing of  fact :  "The  foot  acre  is  a  fair  unit  of  measurement, 
both  of  quantity  and  value,  of  the  coal  in  place  remain- 
ing upon  these  six  tracts."    This  was  affirmed. 

While  the  record  is  quite  voluminous,  it  becomes  our 
duty  to  review  it,  to  discover  the  errors  appellants  urge 
were  made  in  the  findings  of  fact  and  conclusions  of  law. 
The  principal  objection  is  to  the  value  placed  on  the  foot 
acre  which,  it  is  asserted,  is  not  more  than  $60,  while 
the  court  fixed  $125  an  acre;  as  the  uniform  value 
throughout  the  county  was  eighty  per  cent  of  the  value 
required  by  law,  this  figure  of  $125  was  reduced  to  $100 
a  foot  acre.  The  evidence  concerning  the  value  of  the 
coal  land  was  conflicting.  There  had  been  no  sales  of 
this  land  in  the  immediate  vicinity  and,  to  arrive  at  what 
the  land  was  worth  for  the  purpose  of  assessment,  it  was 


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492  STATE  LINE  &  SULLIVAN  R.  R.  CO.'S  TAXATION. 
Opinion  of  the  Court  [264  Pa. 

necessary  to  compare  the  coal  fields  in  Sullivan  County 
with  those  in  Lackawanna ;  though  not  contiguous  coun- 
ties the  coal  is  of  the  same  general  quality ;  the  coal  in 
Sullivan  is  not  of  the  same  grade  as  that  in  Lackawanna, 
and  the  witnesses  differed  as  to  the  relative  value.  The 
court  did  not  accept,  as  conclusive  on  the  matters  before 
it,  the  statements  of  either  set  of  witnesses,  but  from  all 
the  evidence,  with  the  returns  of  the  board  of  revision 
and  with  such  other  matters  as  would  bear  on  the  ques- 
tion, arrived  at  what  it  considered  to  be  a  fair,  pro- 
portionate value.  The  record  does  not  show  by  a  pre- 
ponderance of  evidence  that  the  value  was  f60  per  foot 
acre.  The  evidence  was  evenly  divided  between  this 
figure  and  $200  and  the  court  took  a  very  proper  view  in 
reaching  its  conclusion. 

Counsel  also  urged  that  the  court  raised  the  figures 
fixed  by  the  board  of  revision  on  the  value  of  a  foot  acre. 
The  only  evidence  as  to  what  the  board  of  revision  did 
with  respect  to  the  foot  acre  was  secured  from  one  of  the 
commissioners.  It  is  not  convincing  that  any  attempt 
was  made  to  fix  the  value  by  that  method.  The  returns 
distinctly  show  the  superficial  acre  was  used  by  the 
board  as  the  unit  of  value.  The  total  amount  returned 
by  it,  as  compared  with  the  actual  foot  acres,  shows  this 
position  to  be  entirely  without  foundation.  The  parties 
on  appeal  are  not  bound  to  adopt  the  method  used  by  the 
board;  any  fair,  reasonable  basis  will  be  sufficient,  if 
the  result  enlightens  the  court  as  to  the  value  required 
by  law.  But,  on  the  appellants'  own  showing,  there  was 
no  effort  to  raise  the  assessment  above  the  amount  re- 
turned by  the  board  (not  considering  coal  land  omitted 
from  assessment  by  mistake) .  As  a  matter  of  fact,  the 
assessments  were  reduced  on  the  two  Epple  tracts,  the 
Heister  and  Tomlinson  tracts.  The  total  amount  re- 
turned was  $237,206,  and  the  sum  fixed  by  the  court,  in- 
cluding the  value  of  the  omitted  acreage,  was  $205,160, 
for  2,042.62  foot  acres. 


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STATE  LINE  &  SULLIVAN  E.  R.  CO.'S  TAXATION,  493 
1919.]  Opinion  of  the  Court. 

No  question  as  to  raised  values  would  be  here,  had  it 
not  been  for  the  correction  made  by  the  court  of  certain 
mistakes  appearing  in  the  assessment  book.  It  appears 
a  part  of  the  acreage  of  the  appellants'  land  had  been 
omitted  from  assessment  and,  when  this  was  corrected, 
of  course  the  amount  was  increased,  but  not  the  value. 
Appellants  deny  the  power  of  the  court  to  make  the  cor- 
rection, since  the  Act  of  1889,  under  which  the  appeal  is 
taken,  gives  no  such  authority;  but  we  cannot  agree 
that  this  is  the  law.  The  board  of  revision  must  inquire 
whether  the  assessment  has  been  made  according  to  law, 
and  if  property  to  be  valued  has  been  valued  at  a  price 
or  sum  not  less  than  it  would  bring  at  a  public  sale  after 
due  notice.  If  a  property  has  been  omitted,  it  has  not 
been  so  assessed  or  valued.  The  board  could  have  placed 
the  land  in  assessment.  Section  1  of  the  Act  of  April  28, 
1868,  P.  L.  105,  gives  to  the  assessor  like  authority.  Up- 
on appeal  to  the  court  of  common  pleas  for  an  equitable 
adjustment  of  the  assessable  value  of  land,  where  the 
same  property  is  involved,  the  Act  of  1889  assuredly  gives 
to  the  court  power,  in  determining  what  is  just  and 
equitable,  to  correct  an  admitted  mistake,  by  adding  the 
omitted  acreage.  Had  the  total  acreage  been  included 
in  the  return  of  the  board,  and  the  price  per  acre  raised 
to  equal  some  other  assessment,  it  might  present  a  dif- 
ferent question.  We  need  not  decide  the  power  of  the 
court  in  such  case,  however ;  for  here  it  is  conceded  that 
a  certain  acreage  of  coal  land  was  actually  omitted  from 
assessment.  It  is  not  the  policy  of  the  law  to  permit  per- 
sons to  escape  taxation  through  an  omission  by  the  as- 
sessor to  place  a  property  in  assessment.  That  such 
result  may  not  be  accomplished,  courts  will  give  a  liberal 
construction  to  those  acts  which  tend  to  an  equalization 
of  the  burden  of  taxation.  When  an  appeal  was  taken, 
the  acreage  and  value  were  open  to  the  court's  consider- 
ation. It  is  not  similar  to  Williamson's  Est.,  153  Pa.  508, 
where  an  attempt  was  made  by  the  board  to  increase  a 
return  that  had  been  settled ;  here  a  part  of  the  property, 


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494  STATE  LINE  &  SULLIVAN  R.  R.  CO.'S  TAXATION, 
Opinion  of  the  Court.  [264  Pa. 

by  acres,  was  actually  left  out  of  assessment.    The  power 
of  the  court  in  this  respect  cannot  be  questioned. 

It  also  appears  from  the  evidence  that  mining  opera- 
tions started  about  1903.  From  that  year  until  1916 
there  had  been  mined  2,936,133  tons  of  coal,  or  an  average 
yearly  output  of  225,850  tons.  There  remained  unmined 
3,000,000  tons  of  coal.  The  tract  originally  contained 
6,000,000  tons.  This  record,  covering  a  period  of  thirteen 
years,  fairly  demonstrates  what  may  be  expected  in  the 
future.  It  furnishes  a  very  fair  basis  for  calculating 
with  reasonable  certainty  the  time  within  which  the 
coal  will  be  mined  to  exhaustion.  Considering  all  un- 
certainties, this  should  be  within  the  next  thirteen  years. 
If  there  should  be  some  calamity  in  the  future  that  would 
prevent  it,  there  is  no  doubt  that  proper  allowance  in  tax 
adjustments  will  be  made  by  the  county  commissioners 
for  a  sufficient  cause  shown.  But,  inasmuch  as  fixing  a 
value  for  the  purpose  of  assessments  is  a  matter  of  pres- 
ent indication,  such  possibilities  cannot  be  taken  into  ac- 
count. The  property  is  operated  on  a  lease  which  pays  a 
royalty  of  nineteen  cents  per  ton,  so  that  within  the  next 
thirteen  years,  with  the  same  average  yearly  output  as  in 
the  past  thirteen  years,  this  company  will  receive  in  the 
neighborhood  of  $575,000.  If  we  were  to  estimate  the 
present  worth  of  that  sum,  even  if  it  was  to  be  withheld 
until  the  end  of  the  period,  it  would  be  approximately 
1325,000 ;  but  as  it  is  paid  yearly,  according  to  the  amount 
mined,  it  would  exceed  this  sum.  The  court  below  fixed 
$205,160  as  the  assessable  value,  which  is  subject  each 
year  to  a  reduction  of  from  eight  to  twelve  per  cent,  ac- 
cording to  the  amount  mined  during  the  preceding  year. 
In  the  last  three  years  the  mining  exceeded  the  yearly 
average  for  the  thirteen  years.  The  appellants  are  carry- 
ing away  coal  which  is  free  from  taxation  at  the  rate  of 
thirty-two  acres  per  year.  We  do  not  see  how  appellants 
have  been  injured  in  the  slightest  by  the  amount  fixed; 
on  the  contrary,  it  looks  like  a  most  favorable  assessment. 


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STATE  LINE  &  SULLIVAN  E.  R.  CO.'S  TAXATION.  495 
1919.]  Opinion  of  the  Court 

We  are  satisfied  under  the  law  and  the  evidence  the 
court  below  did  not  err  in  its  conclusions  and  the  decree 
is  affirmed,  at  the  cost  of  appellants. 


Dempsey  v.  City  of  Scranton,  Appellant. 

Negligence — Damages — Decrease  in  earning  power — Evidence. 

1.  The  income  or  profits  an  injured  person  derives  from  a  busi- 
ness personally  conducted  with  little  or  no  capital  and  depending 
entirely  or  substantially  upon  his  individual  labor  and  skill,  whether 
physical  or  mental,  may  be  considered  as  affording  the  true  measure 
of  his  earning  capacity ;  but  income  or  profits  derived  from  a  busi- 
ness requiring  the  investment  of  substantial  capital  or  in  which 
the  injured  person  is  engaged  with  others  or  where  he  employs  the 
labor  of  others,  cannot  be  accepted  as  a  measure  of  earning  capacity. 
In  the  latter  case,  the  measure  of  loss  is  the  value  of  plaintiff's 
services  in  the  business.  In  either  case,  inquiry  into  the  character 
of  the  business  is  necessary,  also  the  capital  and  assistance  em- 
ployed, and  if  the  case  falls  within  the  second  class  depreciation  in 
profits  is  properly  admitted  only  where  they  can  be  shown  to  be  the 
direct  result  of  plaintiff's  absence,  in  which  case  they  are  received, 
not  as  a  distinct  element  of  damage,  but  as  evidence  of  the  value  of 
plaintiff's  services. 

2.  The  services  of  a  man  who  has  by  his  personal  labor,  skill  and 
business  ability,  built  up  and  managed  a  business  for  a  period  of 
years,  is  manifestly  worth  more  than  the  mere  cost  of  hiring  an- 
other temporarily  to  fill  his  place.  The  thorough  knowledge  of  the 
business  thus  acquired,  together  with  the  personal  acquaintance 
with  the  customers,  has  a  value  in  the  commercial  world  readily 
recognized  by  any  business  man.  This  being  so,  there  is  no  valid 
reason  why  one  responsible  for  an  injury  should  be  heard  to  Say  that 
damages  based  upon  such  consideration  are  merely  conjectural. 

3.  Where  a  person  injured  was  engaged  in  the  business  of  selling 
tea  and  coffee  from  a  store  where  he  employed  three  clerks,  and 
also  in  personally  driving  a  wagon  in  a  particular  territory  from 
which  he  sold  tea  and  coffee,  and  it  appears  that  during  the  period 
of  his  disability  he  employed  another  to  drive  his  wagon  at  a  salary 
of  fifteen  dollars  a  week,  but  that  his  profits  fell  off  after  his  ac- 
cident, to  the  extent  of  $100  or  $125  a  month,  such  falling  off  of 
profits  is  not  the  measure  of  his  loss  of  earning  power,  where  there 
is  no  evidence  offered  to  negative  the  existence  of  other  possible 
causes  for  the  depreciation  of  earnings,  such  as  the  condition  of 


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496    DEMPSEY  v.  CITY  OP  SCEANTON,  Appellant. 

Syllabus — Assignment  of  Errors.  [264  Pa. 

the  market,  general  labor  conditions,  prices  and  other  matters  which 
might  tend  to  cause  a  decrease  in  the  demand  for  the  particular 
merchandise  handled  by  plaintiff  in  his  business.  A  mere  personal 
expression  of  opinion  by  the  plaintiff  that  the  falling  off  was  due 
to  his  personal  disability  by  reason  of  the  accident,  is  not  sufficient. 

Argued  Feb.  24, 1919.  Appeal,  No.  150,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  Lackawanna  Co., 
Oct.  T.,  1915,  No.  230,  on  verdict  for  plaintiff  in  case  of 
Michael  J.  Dempsey  v.  City  of  Scranton.  Before  Brown, 
C.  J.,  Stbwabt,  Moschzisker,  Frazbr  and  Kbphabt, 
JJ.   Beversed. 

Trespass  to  recover  damages  for  personal  injuries.  Be- 
fore Seaelb,  P.  J.,  specially  presiding. 

Verdict  and  judgment  for  plaintiff  for  $4,500.  De- 
fendant appealed. 

Errors  assigned  were,  among  others: 

2.  In  instructing  the  jury  as  follows : 

"Then  he  is  entitled  to  recover  for  loss  of  earnings 
which  he  has  sustained  up  to  the  present  time,  and  he 
has  given  you  testimony  upon  that  point,  which  we  will 
not  narrate.  He  testified  that  he  has  lost  a  certain 
amount  by  reason  of  being  unable  to  give  his  personal  at- 
tention to  his  business.  It  would  be  the  loss  which  he 
sustained  in  his  business  by  reason  of  his  personal  atten- 
tion for  which  he  could  recover,  and  that  is  all ;  not  as 
profit  in  the  business,  but  what  the  business  would  de- 
preciate by  reason  of  the  absence  of  his  personal  atten- 
tion to  it.  Then  he  would  be  entitled  to  recover  also,  if 
you  find  his  injuries  are  permanent  for  such  future  loss 
of  earnings  as  he  might  sustain." 

3.  In  affirming  the  third  point  for  charge  submitted  by 
plaintiff.  The  point  and  answer  and  exception  thereto 
being  as  follows : 

"3.  If  under  all  the  evidence  in  the  case  the  jury  be- 
lieve that  plaintiff  was  injured  and  his  injury  was  due  to 
the  negligence  of  the,  defendant  in  not  keeping  the  street 


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DBMPSEY  v.  CITY  OF  SCRANTON,  Appellant.  497 
1919.]  Assignment  of  Errors — Opinion  of  the  Court, 
in  a  reasonably  safe  condition  for  travel  and  the  plaintiff 
was  exercising  due  care  at  the  time  of  his  injury,  then 
the  plaintiff  would  be  entitled  to  recover  such  amount  of 
money  as  the  jury  find  he  expended  for  medical  care, 
medicines,  nursing  and  hospital  expenses  during  his  ill- 
ness. The  plaintiff  is  also  entitled  to  recover  for  the  loss 
of  earning  power  due  to  his  injuries  by  reason  of  the 
negligence  of  defendant  taking  into  consideration  the  age 
of  the  plaintiff,  his  situation  in  life,  his  condition  of 
health  and  habits  of  industry,  loss  of  profits  he  sustained 
from  his  inability  to  give  his  personal  attention  to  the 
management  of  his  business  and  his  labor  in  carry- 
ing on  said  business,  all  these  elements  may  be  con- 
sidered by  the  jury  in  determining  the  plaintiffs 
damage  in  respect  to  his  loss  of  his  earning  power.  Any 
such  amount  jury  may  find  in  such  case  should  be  as 
compensation  only,  but  should  be  capitalized  at  its  pres- 
ent worth  in  money,  that  is  to  say  that  the  loss  of  future 
earning  power  must  be  anticipated  by  the  jury  to  its 
exact  equivalent,  or  present  worth,  of  his  future  loss  of 
earnings  during  the  several  years  the  jury  may  find  the 
plaintiff's  life  expectancy  is."  Answer:  Affirmed.  Ex- 
ception. 

R.  8.  Houek,  with  him  Jerome  K.  Barrett,  for  appel- 
lant. 

Joseph  O'Brien,  with  him  Thomas  A.  Donahoe,  for  ap- 
pellee. 

Opinion  by  Mb.  Justice  Frazbb,  April  28, 1919: 
This  appeal  by  defendant  is  from  a  verdict  and  judg- 
ment for  plaintiff  in  an  action  for  damages  for  personal 
injuries  sustained  by  reason  of  negligence  on  part  of  the 
City  of  Scranton  in  permitting  the  roadway  of  a  street 
to  remain  in  a  defective  condition,  resulting  in  plaintiff 
being  thrown  from  his  wagon  and  severly  injured.  The 
only  question  raised  in  the  assignments  of  error  relates 
to  the  correct  measure  of  damages. 
Vol.  cclxiv — 32 

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498    DEMPSBY  v.  CITY  OF  SCEANTON,  Appellant. 

Opinion  of  the  Court.  [364  Pa. 

Plaintiff  was  engaged  in  the  business  of  selling  tea  and 
coffee  having  a  store  in  the  Borough  of  Dunmore  where 
he  employed  three  clerks,  and  in  addition  to  the  business 
done  at  the  store  plaintiff  personally  drove  a  wagon 
throughout  the  borough  and  adjacent  territory,  from 
which  he  sold  tea  and  coffee.  He  had  conducted  this 
business  for  fourteen  years  and  built  it  up  by  his  personal 
efforts.  There  is  no  evidence  as  to  the  amount  of  capital 
invested.  Plaintiff  testified  the  amount  of  business  done 
decreased  considerably  during  the  time  he  was  pre- 
vented from  giving  it  his  personal  attention,  and  while 
the  business  was  continued  and  profit  made,  the  differ- 
ence between  the  profits  before  and  after  his  injury  was 
$100  or  $125  a  month,  or  $1,200  to  $1,400  a  year  decrease. 
In  his  opinion  the  falling  off  was  due  to  his  inability  to 
give  personal  attention  to  his  store  and  wagon  trade. 
During  this  time  he  employed  another  to  drive  the  wagon 
at  a  weekly  salary  of  $15.  The  trial  judge  charged  in 
effect  that  what  plaintiff  could  recover  was  the  loss  sus- 
tained in  his  business  by  reason  of  his  inability  to  give  it 
personal  attention,  not  as  profits  of  the  business,  but  as 
depreciation  resulting  from  the  absence  of  such  personal 
attention,  and  also  affirmed  a  point  presented  by  plain- 
tiff wherein  his  damage  for  impairment  of  earning  power 
was  measured  by  the  loss  of  profits  sustained  by  reason 
of  his  inability  to  give  personal  attention  to  the  manage- 
ment of  the  business  and  his  labor  in  carrying  it  on.  The 
same  thought  appears  to  have  been  in  the  mind  of  the 
trial  judge  during  the  course  of  the  trial,  the  evidence 
relating  to  loss  of  profits  having  been  admitted,  not  on 
the  assumption  it  was  the  measure  of  damage,  but  on  the 
theory  it  indicated  the  sum  plaintiff's  services  were  rea- 
sonably worth  in  the  business,  and  represented  his  earn- 
ing power. 

It  is  a  familiar  rule  that  loss  of  earning  power  in- 
volves an  inquiry  into  the  comparative  physical  and  in- 
tellectual laboring  capacity  of  the  person  injured,  before 


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DEMPSEY  v.  CITY  OF  SCRANTON,  Appellant.    499 
1919.]  Opinion  of  the  Court. 

and  after  the  accident.  Profits  derived  from  the  manage- 
ment of  a  business  are  generally  not  to  be  considered  as 
earnings.  The  reason  is  obvious.  Such  profits  usually 
result,  not  solely  from  the  physical  or  intellectual  labor 
of  the  person  owning  and  managing  the  business,  but 
from  combined  capital  and  labor,  labor  not  only  of  the 
party  injured  but  of  others  as  well.  The  amount  of 
profits  realized  may  also  depend  upon  the  locality  in 
which  the  business  is  conducted,  the  commodities  dealt 
in,  competition  encountered,  and  many  other  circum- 
stances directly  or  indirectly  affecting  the  business: 
Goodhart  v.  Penna.  R.  R.  Co.,  177  Pa.  1, 15-16.  If  profits 
were  to  be  accepted  as  a  proper  basis  for  estimating  earn- 
ing capacity,  the  fact  that  profits  were  not  realized,  or 
that  a  loss  resulted  during  a  particular  time,  or  in  a  par- 
ticular business,  would  indicate  a  total  absence  of  earn- 
ing power,  even  though  it  might  appear  such  loss  was 
due  to  causes  other  than  the  manner  in  which  the  busi- 
ness was  conducted,  and  over  which  the  individual  con- 
ducting it  was  without  power  of  control. 

On  the  other  hand,  there  are  cases  in  which  the  allow- 
ance of  proof  of  loss  of  profits  of  a  business  conducted 
with  little  or  no  capital  is  necessary,  on  the  ground  that, 
under  the  particular  facts,  such  profits  are  entirely,  or 
almost  entirely,  the  direct  result  of  the  personal  labor 
and  endeavor  of  the  owner  and,  consequently,  constitute 
the  best  standard  of  earning  power.  An  illustration  of 
this  is  Wallace  v.  Penna.  R.  R.  Co.,  195  Pa.  127,  where 
the  profits  of  a  boarding  house  keeper  were  held  to  be  a 
proper  measure  of  her  earning  capacity,  on  the  theory 
that  the  business  was  one  depending  upon  the  personal 
attention  and  labor  of  the  owner  and  not  upon  invest- 
ment of  capital  or  the  labor  of  others.  This  principle  was 
reaffirmed  in  Simpson  v.  Penna.  R.  R.  Co.,  210  Pa.  101, 
although  the  decision  in  that  case  was  based  on  testimony 
to  the  effect  that  the  plaintiffs  services  in  the  business 
of  producing  oil,  to  which  he  gave  his  entire  time  and 
attention,  were  reasonably  worth  a  fixed  sum.    In  Buck- 


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500    DEMPSEY  v.  CITY  OP  SCRANTON,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

man  v.  P.  &  B.  By.,  227  Pa.  277,  profits  derived  from  a 
farming  and  trucking  business  to  which  the  injured  per- 
son devoted  his  personal  labor  were  assumed  to  be  the 
proper  measure  of  earning  capacity.  This  ruling  was  fol- 
lowed in  McLane  v.  Pittsburgh  Bys.  Co.,  230  Pa.  29, 
where  the  trial  judge  excluded  a  question  relating  to 
profits  derived  from  a  huckstering  business  plaintiff  per- 
sonally conducted,  occupying  his  entire  time.  In  that 
case  we  said,  quoting  from  the  opinion  in  Wallace  v. 
Penna.  B.  B.  (page  38) :  "Profits  derived  from  capital 
invested  in  business  cannot  be  considered  as  earnings,  but 
in  many  cases  profits  derived  from  the  management  of 
business  may  properly  be  considered  as  measuring  the 
earning  -power.  This  is  especially  true  when  the  business 
is  one  which  requires  and  receives  the  personal  attention 
and  labor  of  the  owner." 

The  question  was  again  discussed  in  Boggess  v.  B.  &  O. 
B.  B.  Co.,  234  Pa.  379,  where  plaintiff  owned  an  interest 
in  a  partnership  in  which  he  received  a  share  of  the 
profits  and  to  which  he  devoted  his  personal  services  as 
manager.  Evidence  was  received  to  the  effect  that  de- 
cedent's earnings  were  $3,000  a  year  which  represented 
his  share  of  the  profits  arising  from  the  business.  In 
referring  to  the  earlier  cases  permitting  loss  of  profits 
to  be  shown,  we  said  (page  388-9) :  "They  were  not  in- 
tended as  a  departure  from  the  general  rule  but  only  as 
exceptions  in  cases  where  the  earning  power  of  an  in- 
jured party  could  only  be  measured  by  profits  derived 
from  the  management  of  the  particular  business  in  which 
he  was  engaged.  In  such  cases  much  must  necessarily 
depend  on  the  character  of  the  business.  A  trucker,  or  a 
huckster,  having  no  other  business,  and  giving  his  entire 
time  to  the  particular  business  in  which  he  is  engaged, 
has  no  earning  power  except  that  resulting  from  the 
profits  derived  under  his  personal  management  from  the 
sale  of  truck  or  produce.  In  such  a  case  the  capital  in- 
vested is  small  and  inconsequential  and  is  represented  by 
a  horse  and  wagon  and  perhaps  enough  money  to  pur- 


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DBMPSEY  v.  CITY  OP  SCRANTON,  Appellant.  501 
1919.]  Opinion  of  the  Court, 
chase  a  load  of  produce.  His  earnings  depend  upon  the 
success  with  which  he  manages  the  business  and  not  upon 
the  tools  with  which  he  works.  In  cases  of  this  character, 
and  there  are  many  of  them,  it  is  proper  to  show  profits 
derived  from  management  as  a  measure  of  the  earning 
power  of  a  person  so  engaged.  Even  in  such  cases,  profits 
mean  the  excess  of  receipts  over  expenditures,  in  other 
words,  net  earnings,  and  this  should  always  be  kept  in 
mind  in  the  trial  of  the  cases  of  this  character 

"It  will  be  noticed  that  the  earning  power  contem- 
plated is  that  resulting  from  the  intellectual  or  bodily 
labor  of  the  injured  party  in  his  business  or  profession. 
Profits  derived  from  invested  capital  are  clearly  ex- 
cluded. In  the  case  at  bar,  profits  derived  from  the  part- 
nership could  not  be  considered  as  a  measure  of  damages 
in  determining  the  earning  power  of  the  decedent,  and 
under  the  evidence  we  cannot  escape  the  conclusion  that 
they  may  have  been  so  considered.  We  do  not  mean  to 
say  that  it  would  be  improper  to  show  that  the  deceased 
husband  received  a  salary  as  manager  of  the  partner- 
ship business,  or,  if  he  gave  his  services  as  manager  for  a 
percentage  of  the  profits,  that  it  could  not  be  shown  what 
his  share  of  the  profits  was  for  the  purpose  of  determin- 
ing what  he  earned  as  manager.  If  he  received  a  salary 
as  manager,  or  if  as  compensation  for  his  management 
he  was  to  receive  a  certain  share  of  the  profits,  it  would 
be  competent  to  prove  these  facts  in  establishing  his  earn- 
ing power." 

The  most  recent  discussion  of  the  question  will  be 
found  in  Gilmore  v.  Phila.  Transit  Co.,  253  Pa.  543, 
where  plaintiff,  a  florist,  cultivated  ten  acres  of  ground 
on  which  were  located  hothouses  and  to  which  he  gave 
his  personal  labor  and  also  employed  one  man  as  a  helper. 
Plaintiffs  minor  son  also  assisted  in  the  work.  An 
offer  to  show  plaintiffs  receipts  and  expenditures,  and 
that  he  leased  the  property  and  had  no  funds  invested  in 
the  business  other  than  that  required  to  purchase  seeds, 
etc.,  was  rejected  by  the  trial  judge,  as  was  also  an  offer 


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502    DBMPSEY  v.  OITY  OP  SCRANTON,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

to  prove  the  value  of  plaintiff's  services  in  connection 
with  the  business  was  between  f  1,500  and  $2,000  a 
year.  It  appeared  the  personal  labor  performed  by 
plaintiff  at  the  time  of  his  injury  was  worth  |480  a  year. 
After  calling  attention  (page  548)  to  the  fact  of  there 
being  no  offer  to  prove  the  alleged  decrease  in  earnings, 
following  plaintiff's  injury,  was  due  exclusively  to  his  im- 
paired physical  condition,  or  that  plaintiff  was  rendered 
physically  unable  to  superintend  his  business,  or  that  it 
had  come  to  a  stop,  but,  on  the  contrary,  it  appeared  as  a 
fact  that,  while  plaintiff  was  in  a  nervous  condition,  he 
was  otherwise  physically  fit  and  the  business  was  kept 
going,  in  affirming  the  judgment  we  approved  the  follow- 
ing from  the  charge  of  the  trial  judge  (page  549) :  "A 
man's  business  which  goes  on  after  he  is  hurt  may  have 
success  or  it  may  have  disaster  for  other  reasons  than  the 
accident.  If  he  has  a  plant,  no  matter  if  it  is  a  small 
plant,  in  which  he  raises  flowers,  it  involves  the  buying 
of  bulbs  and  stock  and  it  involves  the  question  of  freeze 
out  in  winter  and  blight  and  other  things  which  some- 
times make  a  season  disastrous,  although  otherwise  it 
would  look  very  promising.  A  man's  labor  enters  into 
that  business  as  well  as  his  stock,  and  the  fact  that  in  one 
year  he  has  a  good  year  and  in  another  he  has  a  bad  year 
may  be  the  result  partly  of  bad  business  conditions  and 
partly  of  conditions  affecting  his  health.  It  is  impossible 
to  split  them,  and  the  law  wisely  says  we  cannot  consider 
the  results  to  the  man's  business,  if  it  is  business  that 
goes  on  and  if  it  is  a  business  in  which  he  could  employ 
somebody  else  to  do  his  work.  In  my  view  of  the  case, 
owing  to  the  fact  that  Mr.  Gilmore  carried  on  his  business 
until  to-day,  and  could  employ  help  to  do  what  he  could 
not  do  himself,  the  cost  of  the  help  would  be  something 
which  could  be  considered,  and  not  what  was  the  effect 
ultimately  upon  his  business  as  shown  by  yearly  state- 
ments." 

The  general  rule  established  by  the  decisions  and  prin- 
ciples above  referred  to,  so  far  as  the  subject-matter  ad- 


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DBMPSEY  v.  CITY  OP  SCRANTON,  Appellant.    503 
1919.]  Opinion  of  the  Court, 

mite  of  the  statement  of  a  general  rule,  is  that  the  income 
op  profits  an  injured  person  derives  from  a  business  per- 
sonally conducted  with  little  or  no  capital  and  depend- 
ing entirely  or  substantially  upon  his  undivided  labor 
and  skill,  whether  physical  or  mental,  may  be  considered 
as  affording  the  true  measure  of  his  earning  capacity; 
but  income  or  profits  derived  from  a  business  requiring 
the  investment  of  substantial  capital  or  in  which  the 
injured  person  is  engaged  with  others  or  where  he  em- 
ploys the  labor  of  others,  cannot  be  accepted  as  a  meas- 
ure of  earning  capacity.  In  the  latter  case,  the  measure 
of  loss  is  the  value  of  plaintiff's  services  in  the  business 
(Gilmore  v.  Phila.  Transit  Co.,  253  Pa.  543,  548;  Singer 
v.  Martin,  96  Wash.  231;  Walsh  v.  New  York  Central, 
etc.,  R.  R.,  204  N.  Y.  58;  Weir  v.  Union  R.  R.  Co.,  188 
N.  Y.  416 ;  8  R.  C.  L.  Section  38) .  In  either  case,  inquiry 
into  the  character  of  the  business  is  necessary,  also  the 
capital  and  assistants  employed,  and  if  the  case  falls 
within  the  second  class  depreciation  in  profits  is  prop- 
erly admitted  only  where  they  can  be  shown  to  be  the 
direct  result  of  plaintiff's  absence,  in  which  case  they  are 
received,  not  as  a  distinct  element  of  damage,  but  as  evi- 
dence of  the  value  of  plaintiff's  services :  Wallace  v.  R. 
R.,  supra;  Singer  v.  Martin,  96  Wash.  231,  241-3;  Hart 
v.  New  Haven  Village,  130  Mich.  181, 186.  The  services 
of  a  man  who,  like  the  plaintiff  in  this  case,  has,  by  his 
personal  labor,  skill  and  business  ability,  built  up  and 
managed  a  business  for  a  period  of  years,  is  manifestly 
worth  more  than  the  mere  cost  of  hiring  another  tem- 
porarily to  fill  his  place.  The  thorough  knowledge  of  the 
business  thus  acquired,  together  with  the  personal  ac- 
quaintance with  the  customers,  has  a  value  in  the  com- 
mercial world  readily  recognized  by  any  business  man. 
This  being  so,  no  valid  reason  appears  why  one  respon- 
sible for  an  injury  should  be  heard  to  say  that  damages 
based  upon  such  considerations  are  merely  conjectural. 

The  testimony  shows  plaintiff  employed  another  to 
drive  the  wagon  at  a  salary  of  $15  a  week.    This  did  not 


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504    DBMPSBY  v.  CITY  OP  SCBANTON,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

necessarily  limit  to  that  amount  the  value  of  plaintiff's 
services  in  the  business.  They  may  have  been,  and  prob- 
ably were,  worth  considerably  more.  Their  value  cannot 
be  measured  by  the  profits  of  the  business,  however,  inas- 
much as  others  were  employed  in  carrying  it  on,  and 
capital  was  necessarily  invested,  though  it  does  not  ap- 
pear to  what  extent.  The  depreciation  in  the  profits  of 
the  business  could  not,  for  these  reasons,  be  adopted  as 
the  measure  of  value  of  plaintiff's  services.  The  admis- 
sion of  such  depreciation,  however,  is  proper  if  ac- 
companied by  an  offer  to  show  that  the  falling  off  was  due 
to  the  absence  of  plaintiff's  personal  services  in  the  busi- 
ness and  not  to  other  possible  causes. 

The  strongest  evidence  in  favor  of  plaintiff  on  this 
point  is  found  in  the  following  extract  from  his  testi- 
mony: "Q.  Do  you  know  whether  or  not  that  [loss  in 
business  profits]  is  due  to  the  condition  of  the  trade  or 
your  absence?  A.  It  is  due  to  my  absence,  I  know.  Q. 
How  do  you  know  that?  A.  I  feel  that  myself .  Q.  That 
is  your  personal  belief?  A.  That  is  my  personal  belie! 
Q.  Have  you  got  any  facts  upon  which  you  base  that 
opinion  or  is  it  your  own  belief?  A.  My  own  belief  on 
it;  I  know  I  could  do  that."  This  evidence  shows  noth- 
ing more  than  plaintiff's  personal  feeling  and  belief  that 
the  result  was  due  to  the  cause  alleged.  It  was  merely 
his  individual  conclusion  based  on  facts  which  do  not 
appear  in  the  record.  There  was  no  evidence  offered  to 
negative  the  existence  of  other  possible  causes  for  the 
depreciation  in  earnings,  such  as  the  condition  of  the 
market  or  trade,  general  labor  conditions,  prices  and 
other  matters  which  might  tend  to  cause  a  decrease  in  the 
demand  for  the  particular  merchandise  handled  by  plain- 
tiff in  his  business.  All  these  matters  should  have  been 
placed  before  the  jury  that  they  might  form  their  con- 
clusion as  to  the  cause  of  the  loss  of  trade,  whether 
by  plaintiff's  absence  or  by  reason  of  other  causes. 
In  absence  of  proper  evidence  on  the  subject  the  admission 
of  proof  of  loss  of  profits  was  erroneous  and  gave  the 


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DBMPSBY  v.  CITY  OP  SCRANTON,  Appellant.    505 
1919.]  Opinion  of  the  Court 

jury  no  proper  basis  for  measuring  plaintiff's  earning 
capacity.  For  the  reasons  stated,  the  judgment  must  be 
reversed,  and  this  case  submitted  to  the  jury  for  retrial, 
in  accordance  with  the  legal  principles  herein  stated. 

The  judgment  is  reversed  with  a  new  venire. 

See  Baxter  v.  P.  &.  R.  By.,  supra,  467. 


Garter  v.  Metropolitan  Life  Insurance  Con 
Appellant. 

Insurance — Life  insurance — Loan — Payment — Forfeiture  —  No- 
tice— Construction  of  policy — Doubt. 

1.  Where  the  insured,  under  a  life  poliqy,  secures  from  the  com- 
pany a  loan  amounting  to  the  full  cash  value  of  the  policy  as  of 
the  date  when  the  next  annual  premium  became  due,  and  dies  after 
that  date  without  having  paid  either  the  loan  or  the  premium,  the 
executor  may  recover  the  face  value  of  the  policy  less  the  loan  and 
unpaid  premium,  where  it  appears  that  the  policy  provided  that  a 
failure  to  repay  a  loan  with  interest  "shall  not  avoid  the  policy 
unless  the  total  indebtedness  hereon  to  the  company  shall  equal  or 
exceed  such  loan  value  at  the  time  of  such  failure,  and  until  twenty- 
one  days  after  notice  shall  have  been  mailed  by  the  company  to  the 
last  known  address  of  the  insured/'  and  it  appears  that  no  such 
notice  was  ever  given  by  the  company. 

2.  An  existing  doubt  as  to  the  construction  of  the  different  parts 
of  a  policy  of  insurance  must  be  resolved  in  favor  of  the  insured. 

Argued  March  17,  1919.  Appeal,  No.  210,  Jan.  T., 
1919,  by  defendant,  from  judgment  of  0.  P.  Susquehanna 
Co.,  No.  98,  Jan.  T.,  1916,  for  plaintiff  n.  o.  v.,  in  case  of 
Carter  v.  Metropolitan  Life  Ins.  Co.  Before  Stewart, 
Moschziskbr,  Frazer,  Walling  and  Kephart,  J  J.  Af- 
firmed. 

Assumpsit  on  a  life  insurance  policy.  Before  Chan- 
null,  P.  J.,  specially  presiding. 

At  the  trial  the  jury  returned  a  verdict  for  defendant. 
Subsequently  the  court  entered  judgment  for  plaintiff  n. 
o.  v.    Defendant  appealed. 


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506  CABTEB  v.  MBTBOPOLITAN  L.  INS.  CO.,  AppeL 

Assignment  of  Error— Opinion  of  the  Court    [264  Pa. 
Error  assigned  was  in  entering  judgment  for  plain- 
tiff n.  o.  v. 

Bert].  R.  Jones,  for  appellant. — When  the  insured 
failed  to  pay  the  annual  premium  which  became  due 
August  3, 1915,  he  was  in  default:  McDonald  v.  Colum- 
bia N.  L.  I.  Co.,  253  Pa.  239;  Salig  v.  U.  S.  L.  Ins.  Co., 
236  Pa.  460;  Lantz  v.  Vermont  Life  Insurance  Co.,  139 
Pa.  546;  Rhodes  y.  Royal  Union  Mutual  Life  Insurance 
Co.,  56  Pa.  Superior  Ct.  233. 

John  D.  Miller,  with  him  Allan  D.  Miller,  for  appellee, 
cited:  Francis  v.  Prudential  Ins.  Co.,  243  Pa.  380;  Cra- 
vers  v.  N.  Y.  Life  Ins.  Co.,  50  S.  W.  Rep.  519;  Salig  v. 
U.  S.  L.  Ins.  Co.,  236  Pa.  460;  McDonald  y.  Columbia 
Nat.  life  Ins.  Co.,  253  Pa.  239. 

Opinion  by  Mb.  Justice  Fbazbb,  April  28, 1919 : 
In  1910  plaintiff's  decedent  obtained  from  defendant 
an  endowment  policy  on  his  life  for  the  sum  of  f  15,000, 
providing  for  the  payment  of  an  annual  premium  for  a 
period  of  fifteen  years,  or  until  the  death  of  the  insured. 
On  September  22,  1914,  the  insured  obtained  a  loan  of 
$3,510,  this  amount  being  the  full  loan  or  cash  value  of 
the  policy  on  August  3,  1915,  the  date  the  next  annual 
premium  became  due.  The  insured  died  November  27, 
1915,  without  having  ijaid  either  the  premium  due  on 
August  3d  preceding,  or  the  loan  of  $3,510.  The  execu- 
tor of  decedent  then  brought  this  action  to  recover  the 
face  value  of  the  policy,  less  the  loan  and  unpaid  pre- 
mium, claiming  the  policy  continued  in  force  under  a  pro- 
vision automatically  extending  it  for  a  period  of  eight 
years  and  four  months  after  nonpayment  of  premium. 
The  trial  judge  directed  a  verdict  for  defendant,  subse- 
quently, however,  entering  judgment  non  obstante  vere- 
dicto for  plaintiff.  The  contention  of  defendant  in  this 
appeal  is  that  failure  to  pay  the  loan,  which  in  amount 
was  identical  with  the  full  face  surrender  value  of  the 
policy  at  the  time  of  default  in  payment  of  premium,  was 


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CABTEB  v.  METROPOLITAN  L.  INS.  CO.,  AppeL  507. 
1919.]  Opinion  of  the  Court 

equivalent  to  the  exercise  of  an  option  under  the  policy 
to  take  its  cash  value,  consequently  nothing  remained  in 
reserve  to  purchase  paid-up  endowment  or  term-insur- 
ance. 

A  clause  in  the  policy  relating  to  payment  of  premium 
states:  "Except  as  herein  provided  the  payment  of  a 
premium  or  installment  thereof  shall  not  maintain  the 
policy  in  force  beyond  the  date  when  the  next  premium  or 
installment  thereof  is  payable."  There  is  a  further  pro- 
vision allowing  a  grace  period  of  thirty-one  days  for  pay- 
ment of  all  premiums  after  the  first,  and  if  death  should 
occur  during  that  time  the  amount  of  unpaid  premiums 
should  be  deducted  from  the  sum  payable  under  the 
policy.  A  subsequent  paragraph  provided  that,  after  the 
policy  had  been  in  force  for  three  years,  the  holder  "within 
three  months  after  any  default,  may  elect  (a)  to  accept 
the  cash  value  of  this  policy,  or  (b)  to  have  the  insurance 
continued  in  force  as  term  insurance  from  date  of  de- 
fault for  its  face  amount,  without  participation  and  with- 
out the  right  to  loan  or  cash  value,  or  (c)  to  purchase 
nonparticipating  paid-up  endowment  insurance,  pay- 
able at  the  same  time  or  on  the  same  conditions  as  this 

policy  but  without  the  right  to  loan  or  cash  value 

If  the  owner  shall  not,  within  three  months  from  default, 
surrender  this  policy  to  the  company  at  its  home  office 
for  a  cash  surrender  value  or  for  paid-up  insurance  as 
provided  in  options  (a)  and  (c),  the  insurance  will  be 
continued  as  provided  in  option  (b)."  Under  the  head- 
ing "Loans"  the  insured  is  permitted  to  borrow  from  the 
company,  after  three  annual  premiums  have  been  paid, 
and  on  the  security  of  the  policy,  a  sum  equal  to  the  cash 
value  of  the  policy  at  the  end  of  the  current  year  and  it 
is  provided  that  failure  to  repay  such  loan  with  interest 
"shall  not  avoid  this  policy  unless  the  total  indebtedness 
hereon  to  the  company  shall  equal  or  exceed  such  loan 
value  at  the  time  of  such  failure  and  until  thirty-one 
days  after  notice  shall  have  been  mailed  by  the  company 
to  the  last  known  address  of  the  insured." 


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508  CARTER  v.  METROPOLITAN  L.  INS.  CO.,  AppeL 

Opinion  of  the  Court.  [264  Pa. 

We  find  nothing  in  the  wording  of  the  policy  indicating 
an  intention  in  case  of  default  after  granting  a  loan  to 
apply  the  proceeds  of  the  policy  to  the  payment  of  the 
indebtedness.  The  only  provision  referring  to  the  effect 
of  failure  to  pay  having  a  bearing  on  the  question  is  that 
failure  to  repay  shall  not  avoid  the  policy  "unless  the 
total  indebtedness  to  the  company  shall  equal  or  exceed 
such  loan  value  at  the  time  of  such  failure  and  until 
thirty-one  days  after  notice  shall  have  been  mailed  by 
the  company  to  the  last  known  address  of  the  insured." 
That  the  indebtedness  of  the  insured  equalled  or  exceeded 
the  loan  value  is  conceded,  and  defendant's  right  to  for- 
feit the  policy  for  that  reason  cannot  be  denied.  Before 
doing  so,  however,  something  more  than  mere  equality 
of  indebtedness  and  cash  value  of  the  policy  is  required. 
Affirmative  action  on  the  part  of  the  company  must  be 
taken  by  giving  thirty-one  days'  notice  of  intention  to 
avoid  the  policy  by  reason  of  nonpayment  of  the  loan.  In 
absence  of  such  notice  forfeiture  does  not  occur  and  there 
is  nothing  to  prevent  the  operation  of  the  provision  for 
extended  insurance  whereby  the  policy  remains  in  force 
for  the  full  period  of  the  extended  insurance.  Had  the 
insurer  intended  that,  in  case  of  default,  the  cash  value 
of  the  policy  should  be  applied  to  cancel  the  indebtedness 
and  the  policy  thereby  terminate  if  the  latter  equalled 
the  former,  it  would  have  been  a  simple  matter  to  have 
said  so.  In  absence  of  such  provision,  the  court  will  not 
read  into  the  policy  a  requirement  it  does  not  contain. 

That  an  existing  doubt  as  to  the  construction  of  the  dif- 
ferent parts  of  a  policy  of  insurance  must  be  resolved  in 
favor  of  the  insured  is  familiar  law,  and  under  this  rule 
the  action  of  the  court  below  in  entering  judgment  for 
plaintiff  non  obstante  veredicto  was  proper  and  fully  sup- 
ported by  the  decision  of  this  court  in  Francis  v.  Pru- 
dential Ins.  Co.,  243  Pa.  380,  where  a  question  arose  as 
to  whether  an  existing  indebtedness  of  the  policyholder 
to  the  company  should  be  deducted  from  the  cash  value  of 
the  policy  so  as  to  reduce  the  term  of  extended  insurance 


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CARTER  v.  METROPOLITAN  L.  INS.  CO.,  AppeL  509 
1919.]  Opinion  of  the  Court. 

under  a  provision  whereby  a  forfeited  policy  should  be- 
come a  paid-up  policy  for  a  certain  term,  without  action 
on  the  part  of  the  insured,  and  in  absence  of  an  election 
by  him  to  the  contrary.  We  there  said  (page  390) :  "We 
cannot  agree  that  the  term  of  extended  insurance  is  af- 
fected by  the  loan  provisions  of  the  policy,  which  do  not 
in  terms,  nor  as  we  view  it  by  necessary  implication,  have 
reference  to  the  table  of  extended  insurance.  If  appel- 
lant [the  insurance  company]  intended  to  reduce  the 
term  of  extended  insurance  on  account  of  loans  to  the  in- 
sured, it  would  have  been  an  easy  matter  to  have  so  pro- 
vided in  the  policy,  and  the  inference  from  its  failure  to 
do  so  is  that  it  did  not  so  intend.  The  policy  is  in  the 
language  of  the  insurance  company  and  the  presumption 
is  that  its  express  provisions  contain  all  the  conditions 
intended  to  be  imposed.  Certainly  the  insured  had  the 
right  to  assume  that  the  policy  meant  what  it  said,  and 
that  conditions  not  expressed  did  not  exist.  As  to  the 
loans,  appellant  safeguarded  its  interests  by  provisions 
for  forfeiture,  and  for  the  deduction  of  indebtedness,  to- 
gether with  interest  accumulated  and  accrued  upon  pay- 
ment of  the  amount  otherwise  due  the  insured  under  the 
terms  of  the  policy.  There  is  no  provision  in  the  policy 
for  the  reduction  of  the  term  of  extended  insurance  on 
account  of  indebtedness  to  the  insurer,  and,  in  absence  of 
such  provision,  courts  are  not  at  liberty  to  read  into  the 
contract  what  it  does  not  contain.  Again  the  rule  that 
insurance  contracts  shall  be  taken  most  strongly  against 
the  insurer  applies,  and,  when  the  provisions  as  to  loans 
are  read  in  the  light  of  this  rule,  the  argument  of  appel- 
lant on  this  branch  of  the  case  fails." 

In  the  case  in  hand  no  formal  notice  of  intent  to  cancel 
was  sent  the  insured  and  the  policy,  consequently,  re- 
mained in  force,  subject  to  the  assignment  to  the  com- 
pany as  collateral  for  repayment  of  the  loan.  Salig  v. 
TJ.  S.  Life  Ins.  Co.,  236  Pa.  460,  cited  by  appellant,  is 
distinguishable  from  the  present  case,  in  that  the  policy 
there  contained  an  express  provision  whereby  it  became 


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510  CARTER  v.  METROPOLITAN  L.  INS.  CO.,  AppeL 

Opinion  of  the  Court  [264  Pa. 

void  in  case  of  nonpayment  of  the  loan  when  due.  In 
that  case  notices  were  sent  the  insured  calling  his  atten- 
tion to  the  terms  under  which  the  loan  was  made,  and  ad- 
vising him  the  policy  would  be  forfeited  unless  payments 
were  forthcoming  on  or  before  a  time  stated.  The  case  of 
McDonald  v.  Columbia  N.  L.  Ins.  Co.,  253  Pa.  239,  also 
differs  from  the  present  since  there  the  State  law  pro- 
vided automatically  for  a  paid-up  life  insurance  policy 
for  a  certain  amount  in  case  of  forfeiture  for  nonpayment 
of  premium,  without  action  by  either  of  the  parties,  and 
the  effort  of  the  insured  there  was  to  have  the  policy  re- 
instated under  an  option  clause  he  had  failed  to  exercise. 
The  judgment  is  affirmed. 


Kahn  v.  Quaker  City  Cab  Company,  Appellant 

Evidence — Opinion  of  expert — Exception* — Appeals, 

1.  On  an  appeal  in  an  accident  case  an  assignment  of  error  to  the 
admission  in  evidence  of  the  opinion  of  an  expert  will  not  be  con- 
sidered where  no  exception  was  taken  to  the  evidence. 

Trial — Charge — Exception — Bequest  for  instructions. 

2.  It  is  too  late  on  appeal  to  complain  of  instructions  of  the  trial 
judge,  where  no  exceptions  were  taken  to  the  instructions,  and  the 
request  of  the  judge  to  counsel  to  make  further  suggestions  as  to 
anything  he  omitted,  is  disregarded. 

Appeals — New  trial — Abuse  of  discretion. 

3.  The  action  of  the  court  below  in  refusing  to  grant  a  new  trial 
will  not  be  reversed  except  in  case  of  abuse  of  discretion. 

Argued  March  18, 1919.  Appeal,  No.  94,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  No.  2,  Philadelphia 
Co.,  Dec.  T.,  1917,  No.  3121,  on  verdict  for  plaintiff  in 
case  of  Simon  Kahn  v.  Quaker  City  Cab  Company.  Be- 
for  Stewart,  Moschzisker,  Frazer,  Walling  and  Khp- 
hart,  JJ.    Affirmed. 


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EAHN  v.  QUAKER  CITY  CAB  CO.,  Appellant.  511 
1919.]  Statement  of  Facts— Opinion  of  the  Court 

Trespass  to  recover  damages  for  personal  injuries.  Be- 
fore Rogers,  J. 

Verdict  and  judgment  for  plaintiff  for  |3,500.  De- 
fendant appealed. 

Errors  assigned  were  various  instructions  and  rulings 
on  evidence,  and  refusal  of  new  trial. 

Robert  P.  Shick,  for  appellant. 

Victor  Frey,  with  him  Augustus  Trash  Ashton,  for 
appellee. 

Opinion  by  Mb.  Justice  Kephabt,  April  28, 1919 : 
The  appellee,  a  passenger  in  a  taxicab  owned  and 
operated  by  the  appellant's  servants,  was  injured  when  it 
collided  with  a  tree  near  the  crossing  of  Sixty-second  and 
Arch  streets,  West  Philadelphia.  The  appellant  admit- 
ted liability  for  the  injuries  sustained  by  the  plaintiff,  but 
objected  to  the  manner  in  which  the  case  was  tried  and 
assigns  as  error  the  action  of  the  court  on  its  motion  for 
a  new  trial.  We  have  carefully  read  the  evidence  and  the 
charges,  and  it  is  not  clear  to  us  how  the  court  could  have 
done  otherwise  than  refuse  the  motion.  There  is  nothing 
on  record  indicating  an  abuse  of  discretion.  There  is  no 
exception  to  the  evidence  of  Dr.  Paul,  who  expressed  the 
opinion  that  epilepsy  and  convulsions  may  have  resulted 
from  the  accident,  and  there  was  some  evidence  upon 
which  to  base  that  opinion. 

We  do  not  have  before  us  the  language  used  by  the 
appellee's  counsel  in  his  address  to  the  jury  and  we  are 
in  no  position  to  judge  the  effect  it  might  have  had.  The 
trial  judge  heard  it,  and  when  he  refused  a  new  trial, 
this  matter  was  given  due  consideration.  Had  the  appel- 
lant felt  the  instruction  with  respect  to  the  diminution  of 
earning  power  was  erroneous,  it  should  have  excepted  to 
this  portion  of  the  charge;  but  when  the  trial  judge,  at 
the  conclusion  of  the  charge,  requested  counsel  to  sug- 


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512    KAHN  v.  QUAKER  CITY  CAB  CO.,  Appellant. 

Opinion  of  the  Court  [264  Fa. 

gest  anything  he  had  omitted,  or  any  correction  de- 
sired made,  appellant's  counsel  was  silent.  We  have 
frequently  called  attention  to  counsel's  duty,  when  such 
requests  are  made.  It  is  now  too  late  to  complain.  The 
same  may  be  said  of  the  objection  to  the  court's  instruc- 
tions as  to  the  value  of  opinion  evidence  in  that  it  was 
based  on  an  examination  made  long  after  the  accident. 
Whatever  value  these  objections  might  have  to  the 
appellant  if  properly  brought  on  the  record  by  way  of  an 
exception  and  an  assignment  of  error,  need  not  be  dis- 
cussed. They  do  not  present  sufficient  grounds  to  con- 
vict the  court  of  an  abuse  of  discretion  in  refusing  to 
grant  a  new  trial. 

The  assignments  of  error  are  overruled  and  the  judg- 
ment is  affirmed. 


Healy  v.  Shedaker,  Appellant 

Negligence — Automobiles — Street  crossing — Pedestrian  —  Look- 
ing— Contributory  negligence — Case  for  jury. 

1.  Where  a  pedestrian,  in  crossing  a  street  on  a  dark  night, 
reaches  an  island  safety  zone,  and  then  looks,  southward  in  the 
direction  in  which  the  travel  is  coming,  and  seeing  no  vehicle  ap- 
proaching, proceeds  without  continuously  looking  southward  for  a 
distance  of  twenty  feet,  when  she  is  struck  by  an  automobile  bear- 
ing no  lights,  sounding  no  warning  and  going  at  a  speed  of  from 
twenty  to  thirty  miles  an  hour,  she  cannot  be  charged  with  con- 
tributory negligence  as  a  matter  of  law. 

2.  If,  in  such  a  case,  it  appears  that  the  driver  of  the  car  did  not 
know  there  was  a  street  crossing  at  this  point,  it  was  his  duty  all 
the  more  to  have  his  car  under  such  control  that  he  might  im- 
mediately stop  it,  or  turn  it  aside  from  an  object  intercepting  hi§ 
path* 

Argued  March  24,  1919.  Appeal,  No.  244,  Jan.  T., 
1919,  by  defendant,  from  judgment  of  C.  P.  No.  1,  Phila- 
delphia Co.,  June  T.,  1917,  No.  1112,  on  verdict  for  plain- 
tiff in  case  of  Mary  A.  Healy  v.  C.  Ardley  Shedaker.   Be- 


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HEALY  v.  SHEDAKER,  Appellant.  513 

1919.]  Statement  of  Facts — Opinion  of  the  Court. 

fore  Brown,  C.  J.,  Frazbr,  Walling,  Simpson  and  Kbp- 

hart,  JJ.    Affirmed. 

I 

Trespass  for  personal  injuries.    Before  Patterson,  J.  ! 

Verdict  and  judgment  for  plaintiff  for  $2,500.     De-  « 
f  endant  appealed.  j 

j*  ■ 
Error  assigned,  among  others,  was  in  refusing  judg-  f 

ment  for  defendant  n.  o.  v. 

William  Q.  Wright,  with  him  Robert  P.  F.  Maxwell, 
for  appellant. 

Sidney  E.  Smith,  with  him  Martin  J.  Powers  and  W. 
A.  Rem  Schultze,  for  appellee. 

Opinion  by  Mr.  Justice  Kephart,  April  28, 1919 : 

A  mere  statement  of  the  facts  is  sufficient  to  sustain 
the  judgment  of  the  court  below. 

The  appellee  was  walking  across  Broad  street,  as  it 
intersects  Susquehanna  avenue,  in  the  City  of  Philadel- 
phia. She  had  proceeded  as  far  as  the  island  safety  zone, 
when  she  looked  southward,  from  which  direction  travel 
would  come.  Seeing  no  vehicle  approaching,  she  pro- 
ceeded to  a  point  about  twenty  feet  from  the  safety  zone, 
or  eight  feet  from  the  eastern  curb,  when  she  was  struck 
by  the  appellant's  car  proceeding  north  on  Broad  street. 
The  night  was  dark,  the  car  had  no  lights,  no  warning 
sound  of  approach  was  given,  and  it  was  traveling  at  a 
speed  of  from  twenty  to  thirty  miles  an  hour  as  it  passed 
a  witness  a  short  distance  south  of  the  crossing.  This 
testimony,  accepted  by  the  jury,  clearly  established  the 
defendant's  negligence.  It  is  the  duty  of  the  driver  of  an 
automobile,  when  approaching  a  street  crossing,  to  have 
his  car  under  such  control  that  he  may  stop  it  so  as  to 
avoid  an  accident. 

The  appellant's  contention  that  the  appellee  did  not 
use  due  care  in  not  constantly  looking  to  the  south  td 
Vol.  cclxiv— 33 

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514  HEALY  v.  SHEDAKER,  Appellant 

Opinion  of  the  Court  [264  Pa. 

ascertain  the  approach  of  the  car,  and  was,  therefore^ 
guilty  of  contributory  negligence  as  a  matter  of  law,  is 
without  merit.  It  was  dark,  and  the  car  was  traveling 
without  lights.  Had  she  looked  she  scarcely  could  have 
observed  it  in  time  to  free  herself  from  danger.  This  was, 
however,  for  the  jury  to  determine.  While  it  was  her 
duty  to  look  where  she  was  going,  and  not  rush  blindly 
into  danger,  the  facts  in  this  case  do  not  call  for  the  ap- 
plication of  that  rule.  She  had  looked  before  starting 
from  the  safety  zone,  and  by  continuing  to  look,  under 
such  circumstances,  she  would  have  added  nothing  to  her 
security.  At  least,  her  act  could  not  be  declared  negligence 
as  a  matter  of  law.  That  it  was  not  due  care  was  for  the 
jury  to  say.  The  court  below  in  its  charge  said :  "If  the 
jury  believes  from  the  evidence  that  when  the  plaintiff 
stepped  from  the  isle  of  safety  or  concrete  post  base  she 
failed  to  look  whether  a  vehicle  was  approaching  and  that 
the  automobile  coming  towards  her  was  plainly  in  view 
had  she  chosen  to  look,  she  took  the  risk  of  going  across 
the  street  in  front  of  it  and  was  guilty  of  contributory  neg- 
ligence and  your  verdict  must  be  for  the  def endant."  This 
adequately  presented  every  phase  of  the  appellant's  case 
as  predicated  on  the  conduct  of  the  appellee. 

If  the  driver  of  the  car  did  not  know  there  was  a  street 
crossing  at  this  point,  this  only  emphasized  the  duty  to 
use  greater  precaution  while  traveling  in  a  city;  as  his 
car  was  without  lights,  this  increased  the  caution  neces- 
sary. Under  such  circumstances,  it  was  his  duty  to  have 
his  car  under  such  control  that  he  might  immediately 
stop  it,  or  turn  it  aside  from  an  object  intercepting  his 
path. 

The  judgment  of  the  court  below  is  affirmed. 


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BAILEY  v.  YOUNG  WOMEN'S  C.  ASSN.,  Appel.  515 
1919.]  Syllabus — Opinion  of  the  Court. 


Bailey  et  aL  v.  Young  Women's  Christian  Assn. 
et  al.,  Appellants. 

Equity — Preliminary  injunction — Maintaining  status  quo — Ap- 
peal. 

Where  there  is  apparently  sufficient  ground  for  the  action  of  the 
court  below  in  awarding  a  preliminary  injunction  it  will  not  be 
disturbed  on  appeal;  the  status  quo  will  be  preserved  until  final 
hearing. 

Argued  March  25,  1919.  Appeal,  No.  288,  Jan.  T., 
1919,  by  defendants,  from  decree  of  C.  P.  No.  5,  Philadel- 
phia Co.,  Sept.  T.,  1918,  No.  1563,  awarding  preliminary 
injunction  in  case  of  Elsie  Bailey  et  al.  v.  Young  Wom- 
en's Christian  Association  of  Philadelphia  et  al.  Before 
Brown,  C.  J.,  Moschziskbb,  Frazbr,  Walling  and  Kbp- 
habt,  J  J.    Affirmed. 

Bill  in  equity  for  an  injunction  to  restrain  defendants 
from  preventing  the  plaintiffs  from  voting  at  a  corporate 
election,  and  for  the  appointment  of  a  master  to  super- 
vise such  election.    Before  Staake  and  Monaghan,  JJ. 

The  court  awarded  a  preliminary  injunction  and  ap- 
pointed a  master.    Defendants  appealed. 

Error  assigned  was  the  decree  of  the  court. 

Theodore  F.  Jenkins,  with  him  William  H.  Peace,  for 
appellants. 

Benjamin  0.  Frick,  for  appellees. 

Pee  Curiam,  April  28,  1919 : 

Where  there  is  apparently  sufficient  ground  for  the 
action  of  the  court  below  in  awarding  a  preliminary  in- 


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516  BAILEY  v.  YOUNG  WOMEN'S  C.  ASSN.,  AppeL 

Opinion  of  the  Court  [264  Fa. 

junction  it  will  not  be  disturbed  on  appeal;  the  status 
quo  will  be  preserved  until  final  hearing:  Gemmell  et  al. 
v.  Fox  et  al.,  241  Pa.  146.  It  not  appearing  that  the  pres- 
ent appeal  ought  to  be  made  an  exception  to  this  rule, 
it  is  dismissed  at  the  costs  of  the  appellants. 


Hohl  et  al.  v.  Modell,  Appellant 

Deeds — Building  restrictions — Offensive  business — Public  garage 
— Equity — Injunction — Nuisance — Laches — Delay. 

1.  Where  the  owner  of  a  lot  in  an  exclusively  residence  section  of 
a  city,  built  up  with  fine  modern  houses,  holds  it  under  a  building 
restriction,  common  to  the  neighborhood,  which  provides  "that  there 

shall  not  be  erected  upon  said  lot any  establishment  for 

any  offensive  business,"  such  owner  will  be  enjoined  from  building 
an  addition  to  an  existing  garage  which  will  increase  the  storage 
capacity  of  the  garage  from  ten  automobiles  to  twenty-four. 

2.  If  it  appears  that  she  had  maintained  without  objection  on  the 
lot  a  garage  with  a  capacity  for  ten  automobiles  for  three  years, 
she  will  not  be  compelled  to  discontinue  it;  for  he  who  would  en- 
force a  building  restriction  by  injunction,  must  act  promptly. 

3.  Equity  may  restrain,  as  a  nuisance,  the  operation  of  a  public 
service  garage  in  an  exclusively  residence  section,  aside  from  any 
building  restriction. 

Argued  March  26,  1919.  Appeal,  No.  292,  Jan.  T., 
1919,  by  defendant,  from  decree  of  C.  P.  No.  3,  Philadel- 
phia Co.,  March  T.,  1918,  No.  3393,  awarding  injunction 
in  case  of  Albert  K.  Hohl  et  al.  v.  Bertha  G.  Modell  et  al. 
Before  Moschziskbr,  Frazeb,  Walling,  Simpson  and 
Kbphabt,  JJ.    Affirmed. 

Bill  in  equity  for  an  injunction.    Before  Davis,  J. 

The  court  awarded  an  injunction.  Defendant  ap- 
pealed. 


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HOHL  et  aL  v.  MODELL,  Appellant.  517 

1919.]  Assignment  of  Error — Opinion  of  the  Court. 

Error  assigned  was  the  decree  awarding  the  injunc- 
tion. 

Owen  J.  Roberts,  with  him  William  B.  Gery,  for  ap- 
pellant, cited :  Orne  v.  Fridenberg,  143  Pa.  487;  Asbury 
v.  Caroll,  54  Pa.  Superior  Ct.  97. 

Joseph  P.  Oaffney,  with  him  Tale  L.  Schekter,  for  ap- 
pellees, cited:  Pusic  v.  Salak,  261  Pa.  512;  Menendez  v. 
Holt,  128  U.  S.  523;  Hibberd  v.  Edwards,  235  Pa.  454; 
Electric  City  Land  Imp.  Co.  v.  West  Ridge  Coal  Co.,  187 
Pa.  500;  Meigs  v.  Milligan,  177  Pa.  66;  St.  Andrew's 
Lutheran  Church's  App.,  67  Pa.  512. 

Opinion  by  Mb.  Justice  Walling,  April  28, 1919 : 
This  bill  in  equity  was  filed  by  nineteen  neighboring 
property  owners,  to  restrain  the  erection  and  use  of  a 
building  as  a  public  garage,  in  violation  of  a  building 
restriction  and  in  an  exclusively  residence  section.  The 
bill  was  filed  against  the  owner  and  contractor,  but  as 
only  the  former  appealed  we  will  refer  to  her  (Bertha  G. 
Modell)  as  the  defendant.  She  is  the  owner  of  a  double 
lot  situated  on  the  northeast  corner  of  Lindley  avenue 
and  Camac  street,  Philadelphia,  where  she  resides.  In 
1912  she  built  a  three-car  garage  on  the  rear  corner  of 
this  lot,  which  in  1915  she  enlarged  to  a  ten-car  garage. 
Therein  she  stored  her  own  car  and  rented  the  balance 
of  the  space  for  other  cars.  The  demand  for  such  storage 
space  was  so  great  that  in  April  1918  she  began  the  erec- 
tion of  an  addition  forty-eight  by  fifty-four  feet  in  size, 
and  extending  easterly  from  the  former  garage  to  Camac 
street,  intended  to  accommodate  fourteen  additional 
automobiles,  and  to  be  a  one-story  brick  building  with  a 
two-story  front.  This  is  an  exclusively  residence  section 
built  up  with  fine,  modern  homes,  and  defendant  holds 
her  property  under  a  building  restriction,  common  to  the 
neighborhood,  which  provides,  inter  alia,  "that  there 


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518  HOHL  et  al.  v.  MODBLL,  Appellant. 

Opinion  of  the  Court.  [264  Pa. 

shall  not  be  erected  upon  said  lot any  establish- 
ment for. ... .  .any  offensive  business." 

The  bill  was  filed  to  restrain  the  operation  of  the  pres- 
ent garage  and  also  the  construction  and  operation  of  the 
proposed  addition  thereto,  on  the  ground  of  violation  of 
the  restriction  and  also  of  nuisance.  The  case  was  heard 
upon  bill,  answer,  replication  and  testimony.  The  chan- 
cellor made  exhaustive  findings  of  facts,  the  9th  being, 
"If  the  proposed  garage  is  erected  and  operated  accord- 
ing to  the  plans,  there  will  necessarily  be  noises,  smoke 
and  odors.  Automobiles  will  be  passing  in  and  out  of 
said  garage  intermittently  during  the  entire  day  and 
night ;  there  will  be  pounding  upon  metal ;  replacing  of 
tires;  moving  and  washing  of  cars;  adjusting  of  car- 
buretors ;  testing  of  the  engines  at  varying  rates  of  speed, 
to  which  will  be  incident  the  continuous  explosions  of 
gasoline  in  the  motors  of  varied  intensity;  speeding  and 
racing  of  motors.  These  noises  would  occur  during  the 
day  and  the  night,  and  would  be  heard  for  varying  dis- 
tances; depending  upon  the  then  existing  conditions. 
The  odors  from  the  gasoline  will  be  disagreeable  and  of- 
fensive. Smoke  will  be  emitted  from  the  motors  of  the 
automobiles  in  varied  quantities  depending  upon  the 
kind  of  machines,  the  skill  of  the  operator,  the  atmos- 
pheric and  other  conditions,  all  of  which  would  be  more 
or  less  noticeable  in  the  immediate  neighborhood,  and 
unpleasant  to  the  persons  with  whom  it  came  in  contact. 
All  of  these  matters  would  seriously  interfere  with  the 
peaceful  enjoyment  of  the  plaintiffs'  houses ;  reduce  the 
values  of  their  respective  properties  for  the  purpose  for 
which  they  were  bought,  and  are  owned  and  used;  in- 
crease the  rates  of  insurance;  and  impose  additional  bur- 
dens upon  the  properties  in  the  neighborhood." 

The  above  is  supported  by  evidence  and  was  approved 
by  the  court  below,  where  a  final  decree  was  entered  re- 
straining defendants  from  the  construction  and  operation 
of  the  proposed  addition  to  the  garage.  The  chan- 
cellor also  found  that  the  ten-car  garage  was  operated  in 


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HOHL  et  al.  v.  MODELL,  Appellant.  519 

1919.]  Opinion  of  the  Court 

a  manner  annoying  and  offensive  to  plaintiffs,  but  the 
final  decree  did  not  restrain  its  operation.  The  defend- 
ant brought  this  appeal,  but  we  find  no  error  in  the  rec- 
ord. The  chancellor  found  that  if  enlarged  as  proposed 
it  would  constitute  a  public  garage,  and  the  evidence  in- 
dicates that  it  would  have  all  the  elements  thereof  except, 
possibly,  a  repair  shop  and  an  attendant.  Whether  per- 
mitting each  occupant  to  have  his  own  key  and  do  his 
own  repairing  would  add  to  or  detract  from  the  neigh- 
borhood annoyance,  was  a  matter  as  to  which  witnesses 
differed;  and  the  lower  court's  conclusion,  that  the  (at 
least  semipublic)  garage  as  proposed  would  constitute  an 
offensive  business  in  violation  of  the  building  restriction, 
is  warranted  by  the  facts  found. 

There  is  apparently  some  lack  of  harmony  in  the  de- 
cisions, especially  of  the  trial  courts,  in  this  class  of 
cases  arising,  doubtless,  from  the  fact  that  each  depends 
largely  upon  its  own  circumstances.  However,  the  pres- 
ent case  is  like  Hibberd  v.  Edwards,  235  Pa.  454,  where 
it  is  held  that  a  restriction  forbidding  the  erection  of  a 
building  for  offensive  purposes  or  occupation  is  broad 
enough  to  include  a  public  garage.  Such  restriction  will 
be  construed  strictly  but  enforced  so  long  as  it  is  of 
substantial  value  to  a  dominant  lot.  See  St.  Andrew's 
Lutheran  Church's  App*,  67  Pa.  512 ;  Landell  et  al.  v. 
Hamilton  et  al.,  175  Pa.  327;  Meigs  et  al.  v.  Milligan, 
177  Pa.  66;  Electric  City  Land,  etc.,  Co.  v.  West  Ridge 
Coal  Company,  187  Pa.  500.  Equity  may  restrain  as  a 
nuisance  the  operation  of  a  public  service  garage  in  an 
exclusively  residence  section,  aside  from  any  building 
restriction :  Prendergast  et  al.  v.  Walls  et  al.,  257  Pa. 
547. 

As  the  ten-car  garage  had  been  built  and  in  operation 
for  three  years,  without  objection,  the  court  below  prop- 
erly refused  to  order  its  discontinuance;  for  he  who 
would  enforce  a  building  restriction  by  injunction  must 
act  promptly:  Orne  v.  Fridenberg,  143  Pa.  487,  500. 
However,  permitting  the  operation  of  a  small  garage  did 


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520  HOHL  et  aL  v.  MODELL,  Appellant 

Opinion  of  the  Court  [264  Pa. 

not  preclude  plaintiffs  from  invoking  equity  to  prevent 
the  operation  of  a  large  one.  See  Englander  v.  Apfel- 
baum,  56  Pa.  Superior  Ct.  145,  also  Menendez  v.  Holt, 
128  U.  S.  514,  523. 

The  decree  is  affirmed  and  appeal  dismissed  at  the  costs 
of  appellant 


Murnaghan's  Estate  (No.  1)'. 

Executors  and  administrators — Liability  for  loss  of  a  retail  liquor 
business — Findings  of  fact — Review  on  appeal — Orphans'  court — 
Surcharge  of  executor — Advice  of  counsel. 

1.  In  a  proceeding  in  the  orphans'  court  to  surcharge  an  executor 
for  loss  by  reason  of  depreciation  in  the  value  of  a  retail  liquor 
business,  which  the  executor  failed  to  sell,  a  decree  in  favor  of  the 
executor  will  not  be  set  aside  on  appeal,  where  the  court  below 
found  upon  sufficient  evidence  that  the  executor  acted  in  good  faith 
and  under  advice  of  counsel  in  endeavoring  to  realize  the  highest 
possible  price  for  the  business,  and  that  before  he  could  effect  a 
sale,  federal  legislation  ensued,  which  rendered  the  business  worth- 
less. 

2.  The  findings  of  an  auditor  confirmed  by  the  court  below  will 
not  be  reversed  in  absence  of  clear  error. 

Argued  March  27, 1919.  Appeal,  No.  313,  Jan.  T.,  1919, 
by  Philadelphia  Brewing  Company,  from  decree  of  O.  O. 
Philadelphia  Co.,  July  T.,  1918,  No.  387,  dismissing  ex- 
ceptions to  adjudication  in  Estate  of  Peter  Murnaghan, 
deceased.  Before  Moschziskbb,  Frazbr,  Walling,  Simp- 
son and  Kbphart,  J  J.   Affirmed. 

Exceptions  to  adjudication. 

The  conrt  dismissed  the  exceptions.  Philadelphia 
Brewing  Co.,  a  creditor,  appealed. 

Errors  assigned  were  in  dismissing  exceptions  to  the 
adjudication. 


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MtBNAGHAN'S  ESTATE  (No.  1).  521 

1919.]  Statement  of  Facts — Opinion  of  the  Court 

W.  W.  Montgomery,  Jr.,  of  Roberts,  Montgomery  & 
McKeehan,  with  him  Robert  T.  McCracken,  for  appel- 
lant 

James  J.  Breen>  with  him  James  B.  McG'.  ane,  for  ap- 
pellee. 

Opinion  by  Mb.  Justice  Fbazeb,  April  28, 1919 : 

Appellant,  a  creditor  of  the  estate  of  Peter  Murnaghan, 
deceased,  appeals  from  the  decree  of  the  court  below  re- 
fusing to  surcharge  the  executor  for  loss  to  the  estate  by 
reason  of  depreciation  in  the  value  of  a  retail  liquor  busi- 
ness the  executor  failed  to  sell. 

Decedent,  by  his  will,  gave  his  property  to  his  executor, 
in  trust,  to  apply  the  income  or  profits  from  the  "sale  or 
continuance  of  the  retail  liquor  license  business"  con- 
ducted by  testator  during  his  lifetime  and  which  com- 
prised the  principal  asset  of  his  estate.  The  executor 
secured  the  transfer  of  the  license  to  himself  and  contin- 
ued the  business  with  a  view  to  preserve  it  for  the  cred- 
itors and  dispose  of  it  at  the  earliest  opportunity.  Ef- 
forts were  made  to  sell  the  property  at  private  sale  but 
without  success.  Appellant  owned  the  premises  on 
which  the  business  was  conducted  and  the  lease  was 
originally  for  a  ten-year  term,  with  privilege  of  renewal 
from  year  to  year;  this  short  term,  the  original  ten-year 
term  having  expired,  imposed  upon  any  one  purchasing 
the  business  the  necessity  of  securing  the  consent  of  the 
landlord  to  a  transfer  of  the  lease.  Appellant's  custom 
in  such  case  seems  to  be  for  it  to  finance  the  transaction 
in  the  event  the  purchaser  of  the  business  is  possessed  of 
insufficient  means  of  his  own,  and  also  to  require  the  pur- 
chaser to  assume  part  or  all  of  the  indebtedness  of  the 
seller  to  appellant. 

Decedent  owed  debts  aggregating  some  $17,000,  of 
which  $11,300  was  due  appellant,  and  $4,238.97  to  the 
McGlinn  Distilling  Company,  both  these  companies  being 
represented  by  Wm.  J.  McGlinn,  president  of  the  former. 


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522  MURNAGHAN'S  ESTATE  (No.  1). 

Opinion  of  the  Court.  [264  Pa. 

Various  tentative  offers  were  received  by  appellee  and 
referred  to  appellant  as  landlord;  negotiations,  how- 
ever, were  in  no  instance  completed,  usually  owing  to  in- 
ability to  conclude  satisfactory  arrangements  with  the 
landlord,  either  on  account  of  the  term  of  the  lease  or  in- 
sufficiency of  the  cash  capital  of  the  prospective  pur- 
chaser. The  executor  also  placed  the  business  in  the 
hands  of  a  broker  who  endeavored  to  secure  a  purchaser, 
but  without  success. 

Appellant  had  notice  of  these  various  efforts  to  dispose 
of  the  property  as  prospective  purchasers  were  referred 
to  its  officers.  Finally,  acting  on  advice  of  counsel,  the 
business  was  offered  for  sale  at  public  auction,  a  mini- 
mum price  of  $17,500  having  been  fixed,  this  sum  being 
necessary  to  pay  creditors.  At  the  sale  an  attorney, 
acting  for  one  who  was  approved  by  appellant  and  the 
distilling  company,  bid  the  sum  of  f  15,000.  In  accord- 
ance with  previous  arrangements  this  bid  was  refused 
and,  subsequently,  by  reason  of  federal  legislation  re- 
garding the  manufacture  and  sale  of  liquor,  the  business 
became  practically  worthless.  The  person  whose  bid  was 
refused  had  but  $3,000  cash  to  invest,  that  amount  being 
acceptable  to  the  landlord.  This  latter  fact  was  not 
communicated  to  the  executor,  who  was  without  knowl- 
edge that  the  bidder  was  acting  with  the  landlord's  ap- 
proval, nor  was  there  an  attempt  by  appellant  subse- 
quently to  carry  out  the  proposed  transfer  by  private 
negotiations,  although  counsel  for  the  executor  attempt- 
ed to  do  so. 

The  issue  raised  by  the  foregoing  evidence  was  one  of 
fact,  and,  in  accordance  with  the  established  rule,  the 
findings  of  the  auditor,  especially  when  confirmed  by  the 
court  below,  will  not  be  reversed  in  absence  of  clear  error, 
although  this  court  might  have  reached  a  different  con- 
clusion on  the  facts:  Kvist's  Est.,  256  Pa.  30,  35,  and 
cases  cited.  We  find  no  evidence  to  support  the  conten- 
tion that  the  executor  failed  to  exercise  good  faith  in  his 
attempt  to  dispose  of  the  property.    On  the  contrary  it 


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MURNAGHAN'S  ESTATE  (No.  1).  523 

1919.]  Opinion  of  the  Court. 

appears  he  made  every  effort  to  obtain  a  reasonable  price 
and  a  tenant  satisfactory  to  the  landlord,  whose  consent 
to  the  transfer  of  the  lease  was  necessary.  Offers  for 
the  property  of  a  larger  sum  than  that  bid  at  auction 
had  been  received  and  refused  owing  to  objections  by  the 
landlord.  Under  the  circumstances  it  cannot  be  said  the 
executor  acted  negligently.  No  reason  appears  which 
excuses  the  landlord  for  failure  to  notify  the  executor, 
even  subsequent  to  the  sale,  that  the  bidder  was  accept- 
able, and  requesting  that  he  be  permitted  to  carry  out 
and  complete  the  transfer  at  the  price  offered.  On  the 
whole,  the  findings  of  the  auditing  judge  that  the  executor 
acted  in  good  faith  and  under  the  advice  of  counsel  in 
endeavoring  to  realize  the  highest  possible  price  for  the 
business  are  amply  supported  by  the  evidence,  and  the 
executor  cannot  be  held  responsible  for  the  happening  of 
subsequent  events  in  the  shape  of  federal  legislation 
which  rendered  the  business  worthless. 
The  decree  of  the  court  below  is  affirmed. 


Murnaghan's  Estate  (No.  2). 

Opinion  by  Mr.  Justice  Frazeb,  April  28, 1919 : 
The  questions  raised  in  this  appeal,  No.  314,  Jan.  T., 
1919,  are  identical  with  those  passed  upon  at  No.  313  of 
the  same  term.    For  the  reasons  set  forth  in  the  opinion 
filed  in  that  case  the  decree  here  is  affirmed. 


Nevin  et  al.  v.  Catanach  et  al.,  Appellants. 

Partition — Land  in  two  counties — Jurisdiction — Averments  of 
till — Amendment — Act  of  February  20, 1854,  P-  L.  89 — Appearance 
—Practice,  C.  P. 

1.  A  bill  in  equity  for  the  partition  of  land  lying  in  two  counties 
filed  in  the  county  in  which  "the  larger  part  of  the  estate  in  value 


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524     NEVIN  et  al.  v.  CATANACH  et  al.,  Appellants. 

Syllabus— Arguments.  [264  Pa. 

is  situated/'  but  not  containing  an  averment  showing  conditions  of 
fact  required  by  the  Act  of  February  20,  1854,  P.  L.  89,  that  the 
land  was  so  situated,  may  be  amended  to  conform  to  the  act  al- 
though before  the  amendment  is  allowed,  a  petition  for  partition  is 
filed  in  the  orphans'  court  of  the  county  in  which  the  smaller  part 
of  the  land  is  situated. 

2.  In  such  a  case,  as  the  court  had  jurisdiction,  and  the  amend- 
ment did  not  change  the  cause  of  action,  or  prejudice  defendants, 
the  amendment  when  made  becomes  a  part  of  the  bill,  as  if  origin- 
ally inserted  therein.  The  jurisdiction  was  therefore  not  in  any 
way  ousted  by  the  proceeding  in  the  other  county. 

3.  An  entry  of  a  general  appearance  for  defendants,  in  such  a 
case,  placed  them  in  such  a  position  that  they  could  not  enter 
pleas  in  bar  to  the  suit,  upon  the  ground  of  a  lack  of  the  statutory 
averment. 

Argued  March  27,  1919.  Appeal,  No.  317,  Jan.  T., 
1919,  by  certain  of  defendants,  from  decree  of  C.  P. 
No.  3,  Philadelphia  Co.,  March  T.,  1918,  No.  5490,  on 
bill  in  equity  in  case  of  David  T.  Nevin  and  Jessie  C. 
Nevin,  Ms  wife,  in  the  right  of  said  Jessie  C.  Nevin,  v. 
Margaret  N.  Catanach  et  al.  Before  Mosghzisker,  Fra- 
zbr,  Walling,  Simpson  and  Kbphart,  JJ.    Affirmed. 

Bill  in  equity  for  partition.    Before  Davis,  J. 
The  court  entered  a  decree  for  partition.    Certain  of 
the  defendant  appealed. 

Error  assigned  was  the  decree  of  the  court. 

A.  M.  Holding,  with  him  Robert  T.  McCracken  and 
Owen  J.  Roberts,  for  appellants. — The  bill  as  originally 
filed  was  invalid :  King  v.  Ambrose,  232  Pa.  617 ;  Luther 
v.  Luther,  216  Pa.  1;  Prey  v.  Stipp,  224  Pa.  390;  Ho- 
garty  v.  Phila.  &  Reading  Ry.  Co.,  255  Pa.  236. 

The  amendment  may  not  relate  back  to  the  date  of  the 
filing  of  the  bill  where  a  valuable  right  has  intervened : 
Sradelman's  Est.,  23  Pa.  Dist.  Rep.  403 ;  Phila.  v.  Hes- 
tonville  Mantua,  etc.,  R.  R.  Co.,  203  Pa.  38;  Card  v. 
Stowers  Pork  Packing  &  Provision  Co.,  253  Pa.  575; 


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NEVIN  et  al.  v.  CATANACH  et  al.,  Appellants,     525 
1919.]  Arguments — Opinion  of  the  Court 

Sutterly  v.  Fleshman,  48  Pa.  Superior  Ct.  619;  Trego  v. 
Lewis,  58  Pa.  463;  Tyrill  v.  Lamb,  96  Pa.  464;  Kille  v. 
Ege,  82  Pa.  102;  Biley  v.  Ins.  Co.,  12  Pa.  Superior  Ct. 
561. 

John  J.  Sullivan,  for  appellees. — The  Act  of  Febru- 
ary 20, 1854,  P.  L.  89,  does  not  require  the  averment  in  a 
bill  in  equity  for  partition  proceedings  that  the  larger 
part  of  the  estate,  in  value,  is  situated  in  the  county 
where  the  proceedings  are  brought. 

The  equity  proceedings  in  the  Common  Pleas  Court, 
No.  3,  of  Philadelphia  County  having  been  begun  before 
the  filing  of  the  petition  for  partition  in  the  Orphans' 
Court  of  Chester  County,  the  former  court  has  exclusive 
jurisdiction:  Davis  v.  Detwiller,  26  Pa.  Dist.  Rep.  1110. 

Even  were  it  necessary  for  the  plaintiffs  to  aver  that 
the  larger  part,  in  value,  of  the  decedent's  real  estate  is 
situated  in  Philadelphia  County,  such  averment  in  the 
amendment  is  to  be  regarded  as  a  part  of  the  bill  in 
equity,  and  relates  back  to  the  filing  of  the  said  bill: 
Hanbest's  Est.,  6  Pa.  Dist.  Rep.  681 ;  Rochester  Borough 
v.  Kennedy,  229  Pa.  251 ;  Joynes  v.  Penna.  R.  R.  Co.,  234 
Pa.  321 ;  Dick's  App.,  106  Pa.  589. 

Opinion  by  Mb.  Justice  Moschziskeb,  April  28, 1919 : 
Adam  A.  Catanach  had  his  homestead  in  Chester  Coun- 
ty, where  he  died,  and  where  his  will  was  probated;  May 
28,  1918,  plaintiffs  filed  a  bill  in  the  Common  Pleas  of 
Philadelphia  praying  partition  of  decedent's  lands,  situ- 
ate in  both  counties.  The  bill  contained  no  averment 
that  "the  larger  part  of  the  estate  in  value"  is  located 
within  the  ordinary  geographic  jurisdictional  limits  of 
the  court  below,  although  such  condition  of  fact  is  re- 
quired by  Section  1  of  the  Act  of  February  20, 1854,  P.  L. 
89,  in  order  to  vest  "power"  in  that  tribunal  "to  enter- 
tain suits  and  proceedings at  law  or  in  equity 

for  the  partition  of  real  estate"  lying  in  "one  or  more 
counties." 


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526     NBVIN  et  al.  v.  CATANACH  et  al.,  Appellants. 

Opinion  of  the  Court.  [264  Pa. 

A  general  unrestricted  appearance  was  entered  for 
some  of  the  defendants  on  June  20, 1918,  and,  on  August 
8, 1918,  for  the  others.  August  12, 1918,  defendants  de- 
murred, alleging  a  lack  of  jurisdiction  in  the  court  below, 
because  of  the  absence  of  the  beforementioned  averment. 
August  23,  1918,  plaintiffs,  by  leave,  amended  their  bill, 
inserting  the  words  "the  larger  part  in  value  of  the  estate 
of  the  said  Adam  A.  Catanach,  deceased,  is,  and  was  at 
the  time  of  the  death  of  said  Adam  A.  Catanach,  situate 
in  the  County  of  Philadelphia." 

Subsequently,  defendants  answered,  averring,  inter 
alia,  that,  between  the  filing  of  the  bill  and  the  date  of 
the  amendment,  they  had  presented  their  petition  to  the 
Orphans'  Court  of  Chester  County,  praying  partition  of 
the  same  lands  described  by  plaintiffs;  that,  since  the 
bill  in  the  court  below  lacked  an  essential  jurisdictional 
averment  at  the  date  of  the  commencement  of  defendants' 
proceedings,  July  29,  1918,  there  was,  at  that  time,  no 
valid  prior  action  pending  for  the  partition  of  such  lands, 
and,  therefore,  their  petition  took  precedence  of  plain- 
tiffs' bill,  in  effect  ousting  the  latter's  suit.  The  court 
below  overruled  this  contention  by  granting  "judgment 
for  plaintiffs  with  leave  to  proceed" ;  and,  when  the  case 
came  to  hearing,  ordered  partition.  Defendants  have  ap- 
pealed. 

All  parties  in  interest  agreed  upon  findings  of  fact,  but 
each  side  submitted  requests  for  conclusions  of  law, 
plaintiffs'  being  affirmed  and  defendants'  refused.  The 
latter  requests,  however,  raised  only  the  question  of 
jurisdiction  already  indicated ;  and  that  is  the  sole  point 
pressed  on  this  appeal. 

The  description  of  the  properties  contained  in  plain- 
tiffs' bill  plainly  indicates  the  fact,  subsequently  inserted 
by  amendment  and  found  by  the  chancellor,  that  the 
larger  part  in  value  of  decedent's  real  estate  is  situated 
in  Philadelphia  County;  which  was  at  no  time  denied 
by  appellants. 


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NEVIN  et  al.  v.  CATANACH  et  al.,  Appellants.  527 
1919.]  Opinion  of  the  Court. 

The  court  below  had  jurisdiction  in  partition  (Act  of 
July  7,  1885,  P.  L.  257,  3  Purd.  3414,  par.  28;  Doyle  v. 
Brundred,  189  Pa.  113,  119;  Brown's  App.,  84  Pa.  457, 
458;  Sheridan  v.  Sheridan  et  al.,  136  Pa.  14, 20),  and  the 
amendment  neither  changed  the  cause  of  action  (Wil- 
helm's  App.,  79  Pa.  120,  134-6;  Aultman's  App.,  98  Pa. 
505,  514;  Rochester  Boro.  v.  Kennedy,  229  Pa.  251,  273; 
Joynes  v.  Penna.  R.  R.,  234  Pa.  321, 327) ,  nor  in  any  sub- 
stantial sense  prejudiced  defendants  (Dick's  App.,  106 
Pa.  589,  596;  Horwitz  v.  Wohlmuth,  66  Pa.  Superior  Ct 
321,  324;  Shlifer  v.  Bergdoll,  69  Pa.  Superior  Ct.  86, 
89) ;  hence,  when  made,  it  became  part  of  the  bill,  to  all 
intents  and  purposes,  as  if  originally  inserted  therein 
(Wilhelm's  App.  and  Dick's  App.,  supra;  B.  &  O.  R.  B. 
v.  McLaughlin,  73  Fed.  519,  521,  and  43  U.  S.  App.,  181, 
187,  opinion  by  Taft,  J. ;  1  Ency.  PI.  &  Pr.  491-2) ;  and 
the  fact  that,  after  the  date  of  the  institution  of  plain- 
tiffs' proceedings,  defendants  went  into  the  Orphans' 
Court  of  Chester  County  for  partition  of  the  same  lands, 
can  in  no  way  oust  or  affect  the  jurisdiction  of  the  Com- 
mon Pleas  of  Philadelphia,  which  had  previously  at- 
tached :  Sprigg  v.  Com.,  T.  T.  &  T.  Co.,  206  Pa.  548,  555 ; 
Jones  v.  Lincoln  S.  &  T.  Co.,  222  Pa.  325, 326 ;  opinion  of 
Penrose,  J.,  in  Hanbest's  Est.,  6  Pa.  Dist.  R.  681 ;  Finch 
v.  Smith,  146  Ala.  644,  651-2 ;  see  also  numerous  cases 
cited  in  15  Corpus  Juris  1134,  sec.  583. 

Aside  from  defendants'  attack  on  the  pleadings,  it 
must  be  admitted  that,  from  every  aspect,  the  court  be- 
low had  jurisdiction  both  of  the  subject-matter,  and,  by 
general  unrestricted  appearance,  of  the  several  defend- 
ants (McCullough  v.  Ry.  Mail  Assn.,  225  Pa.  118, 123-4; 
Swecker  v.  Reynolds,  246  Pa.  197,  201-2) ;  with  this  in 
mind,  the  correctness  of  the  rulings  hereinbefore  made 
becomes  apparent ;  especially  if,  for  a  moment  we  look 
at  the  present  proceeding  as  though  it  were  a  common 
law  action,  commenced  by  summons,  and  consider  that, 
under  such  circumstances,  the  absence  from  the  declara- 
tion of  the  averment  in  question  would  nof  constitute  a 


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528     NBVIN  et  al.  v.  CATANACH  et  al.,  Appellants. 

Opinion  of  the  Court  [264  Pa. 

reason  for  quashing  the  writ,  or  ousting  the  suit*  but*  at 
most,  is  a  mere  matter  of  amendment.  Neither  the  fact  nor 
the  law  is  changed  because  the  action  was  commenced  in 
equity.  Defendants'  objection,  in  substance,  simply  goes 
to  the  manner  in  which  plaintiffs'  declaration  is  drawn, 
not  to  the  validity  of  their  suit,  and,  as  just  said,  this  may 
be  amended. 

In  21  B.  C.  L.  579,  it  is  stated,  "Amendments 

may  relate  to  the  correction  of  mistakes  in  pleadings; 
[including  the]  insertion  of  jurisdictional  averments 
where  these  are  necessary."  Had  the  court  below,  either 
in  fact  or  law,  lacked  jurisdiction  of  the  subject-matter, 
a  general  appearance  for  defendants  could  have  had  no 
effect  (Com.  v.  Barnett,  199  Pa.  161, 177;  Lewisburg  B. 
Co.  v.  Union  County,  232  Pa.  255,  262;  Simpson's  Est., 
258  Pa.  217,  225),  and,  of  course,  the  amendment  in 
question  would  have  been  of  no  avail;  but,  under  the 
circumstances  in  this  case,  while,  perhaps,  defendants 
might  insist  upon  the  insertion  in  plaintiffs'  bill  of  the 
present,  so  called,  jurisdictional  averment,  and  subse- 
quent proof  thereof,  yet,  after  a  general  appearance, 
they  were  not  in  a  position  to  enter  pleas  in  bar  to  the 
suit  upon  the  ground  of  a  lack  of  such  averment,  which 
is  practically  what  was  attempted.  Schenley  v.  Alle- 
gheny, 36  Pa.  29,  54,  and  Com.  v.  Barnett,  supra,  178, 
touch  upon  the  last  point. 

We  conclude  that,  even  if  the  averment  under  discus- 
sion be  classed  as  necessary  (which  plaintiffs  deny),  it 
was  one  which,  on  the  facts  before  us,  could  be  inserted 
by  amendment,  notwithstanding  the  protest  of  defend- 
ants, and  the  court  below  did  not  err  in  so  holding. 

The  assignments  are  all  overruled  and  the  decree  is 
affirmed  at  the  cost  of  appellants. 


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CLARK,  Appellant,  v.  LEHIGH  VALLEY  C.  CO.    529 
1919.]  Syllabus— Statement  of  Facte. 

Clark,  Appellant,  v.  Lehigh  Valley  Coal  Co. 

Workmen's  compensation  —  Referee's  findings  —  Jurisdiction  of 
Workmen's  Compensation  Board—Evidence — Death  —  Accidental 
violence  to  physical  structure  of  the  body — Disease. 

1.  Under  the  Pennsylvania  Workmen's  Compensation  Act  of 
June  2, 1915,  P.  L.  736,  an  injury  resulting  in  death,  need  not  arise 
out  of  or  be  due  to,  the  workmen's  employment;  it  is  sufficient  if  it 
happens  in  course  thereof. 

2.  Where  a  workman  dies  in  the  course  of  his  employment  from  a 
rupture  of  the  aorta  caused  by  "an  extra  effort  in  vomiting,"  the 
rupture  itself  would  constitute  an  accidental  violence  to  the  physi- 
cal structure  of  the  body  within  the  broad  meaning  of  that  term  as 
denned  by  the  courts. 

3.  If  death  comes  during  the  course  of  employment,  in  an  ordi- 
nary way  natural  to  the  progress  of  a  disease  with  which  one  is 
afflicted,  and  with  which  he  was  stricken  before  the  accident,  there 
can  be  no  recovery;  but  if  the  death  is  brought  about  by  an  injury 
due  to  some  mishap,  or  accident,  happening  during  the  course  of 
his  employment,  the  fact  that  deceased  had  a  chronic  ailment 
which  rendered  him  more  susceptible  to  such  an  injury  than  an 
ordinary  person  would  be,  will  not  defeat  the  right  to  compensation. 

4.  Where  a  referee  finds  that  a  miner  died  in  the  course  of  his 
employment,  from  a  rupture  of  the  aorta  "caused  by  an  extra  effort 
in  vomiting/'  such  finding  will  support  an  award  in  favor  of  the 
claimant,  and  it  cannot  be  set  aside  by  the  Workmen's  Compensation 
Board,  without  a  hearing  de  novo. 

5.  In  such  a  case  the  question  is  not  as  to  the  existence  of  evi- 
dence, which  in  the  opinion  of  the  board  would  justify  it  in  con- 
necting the  vomiting  with  the  death,  but  was  there  any  evidence 
which,  within  the  bounds  of  reason,  possibly  could  be  held  to  sus- 
tain the  referee's  findings  connecting  the  vomiting  with  the  death  f 
If  such  evidence  appeared,  then,  albeit  the  board,  on  a  hearing 
de  novo,  might  draw  other  inferences  therefrom,  and  reach  conclu- 
sions differing  from  those  upon  the  record  before  it,  yet,  in  the 
absence  of  such  a  hearing,  it  was  beyond  the  power  of  that  body  so 
to  do ;  and  on  the  pending  appeal,  it  was  likewise  beyond  its  power 
to  reverse  the  referee  on  the  theory  that  he  had  erred,  as  a  matter 
of  law,  in  drawing  deductions  from  the  testimony  differing  from 
those  which  could  have  been  made  by  the  board. 

Argued  April  14, 1919.   Appeal,  No.  296,  Jan.  T.,  1919, 
by  plaintiff,  from  judgment  of  C.  P.  Luzerne  Co.,  May  T., 
Vol.  cclxiv— 34 

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530    CLARK,  Appellant,  v.  LEHIGH  VALLEY  C.  CO. 

Statement  of  Facts — Opinion  of  the  Court  [264  Pa. 
1917,  No.  811,  dismissing  appeal  from  Workmen's  Com 
pensation  Board  reversing  an  award  of  a  referee  in 
favor  of  a  claimant  in  case  of  Bridget  Clark  y.  Lehigh 
Valley  Coal  Company.  Before  Brown,  C.  J.,  Mosch- 
ziskbr,  Prazbr,  Simpson  and  Kbphart,  J  J.    Reversed. 

Appeal  from  decision  of  Workmen's  Compensation 
Board. 
The  court  dismissed  the  appeal.    Claimant  appealed. 

Error  assigned  was  the  judgment  dismissing  the  ap 
peal. 

Roger  J.  Dever,  for  appellant,  cited :  Ourski  v.  Sus- 
quehanna Coal  Co.,  262  Pa.  1;  Dzikowska  v.  The  Su- 
perior Steel  Co.,  259  Pa.  578. 

P.  F.  O'Neill,  with  Mm  F.  W.  Wheaton,  for  appellee. 

Opinion  by  Mr.  Justice  Moschziskbr,  April  28, 1919 : 
Bridget  Clark,  widow  of  Patrick  Clark,  sought  com- 
pensation for  the  death  of  her  husband;  the  referee 
found  in  her  favor,  but  the  Workmen's  Compensation 
Board  reversed ;  the  Common  Pleas  of  Luzerne  County 
affirmed  the  board,  and  claimant  has  appealed  to  this 
court. 

The  referee  reported,  inter  alia,  as  follows :  "The  testi- 
mony in  this  case  shows  that  Patrick  Clark,  the  claim- 
ant's husband,  was  employed  by  defendant  company  in 
looking  after  a  line  of  pipe  used  for  the  purpose  of  con- 
veying silt  from  the  surface  into  its  mine ;  his  duties  were 
to  keep  that  line  in  repair,  and,  in  order  to  enable  him  to 
examine  it  under  ground,  he  carried  an  open  lamp ;  on 
the  morning  of  February  23,  1916,  his  lifeless  body  was 
found  inside  the  mine,  a  short  distance  from  this  pipe- 
line, and  his  lighted  lamp  about  two  feet  away  from  him ; 
his  clothing  was  burning  and  he  had  severe  burns  upon 
his  body;  he  was  in  a  kneeling  position,  on  his  hands, 


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CLARK,  Appellant,  v.  LEHIGH  VALLEY  C.  CO.    531 
1919.]  Opinion  of  the  Court. 

and  apparently  had  been  vomiting;  that  he  was  on  the 
premises  of  his  employer  and  engaged  in  the  performance 
of  his  duty  at  the  time  of  his  death,  is  undisputed ;  that 
his  duties  required  him  to  carry  an  open  lamp  is  not 
denied,  and  no  theory  is  advanced  for  the  burning  of  his 
clothes  and  body  other  than  that  they  were  burned  by 
this  lamp;  the  medical  testimony  establishes  the  fact 
that  death  was  due  to  a  rupture  of  the  aorta,  which  is  a 
large  blood  vessel  leading  from  the  heart." 

The  report  also  contains  these  further  findings:  (1) 
"The  vomiting  was  due  to  probably  one  of  three  causes, 
either  noxious  gases,  the  smell  of  the  burning  clothing, 
or  fright  from  discovery  of  his  clothing  being  on  fire" ; 
(2)  deceased  was  afflicted  with  a  "syphilitic  condition, 
in  which  he  might  have  lived  four  or  five  years,  or  his 
death  might  have  occurred  at  any  time";  (3)  although 
this  condition  rendered  deceased  more  susceptible  to  a 
rupture  of  the  aorta,  than  he  otherwise  would  have  been, 
yet,  in  point  of  fact,  the  rupture  was  immediately 
"caused  by  extra  effort  in  vomiting";  finally  (4),  de- 
ceased "met  with  an  accident  and  sustained  injuries 
which  caused  his  death,"  while  engaged  in  "discharging 
his  duties"  as  an  employee  of  defendant. 

Defendant  asked  review  by  the  compensation  board 
upon  the  ground  of  lack  of  evidence  to  sustain  the  ref- 
eree's finding  of  fact  that  "the  death  of  decedent  was  due 

to  a  rupture  of  the  aorta ,  caused  by  extra  effort 

in  vomiting,  due  to  one  of  three  causes,"  etc. ;  and  its  ap- 
peal was  classed  by  the  board,  not  as  raising  a  question 
of  fact  as  to  whether  the  evidence  warranted,  or  justified, 
this  finding,  but  rather  as  involving  a  pure  point  of  law 
concerning  the  presence  of  any  evidence  to  sustain  the 
finding.  The  board  decided  there  was  no  such  evidence; 
and,  therefore,  set  aside  the  referee's  compensation  order. 

We  say  the  appeal  was  classed  as  involving  a  question 
of  law,  and  not  of  fact,  because  the  referee  was  reversed 
without  a  hearing  de  novo,  such  a  hearing  being  essen- 
tial whenever  the  intention  is  to  disturb  findings  of  fact 


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532    CLARK,  Appellant,  v.  LEHIGH  VALLEY  C.  CO. 

Opinion  of  the  Court  [264  Pa. 

(McCauley  v.  Imperial  Woolen  Co.,  261  Pa.  312, 318-19) ; 
but,  notwithstanding  this  classification,  when  consider- 
ing the  report  of  the  referee,  instead  of  merely  searching 
to  see  if  there  was  any  evidence  capable  of  sustaining 
that  official's  findings  of  fact,  the  board  substituted  its 
own  inferences  and  deductions  for  those  already  upon 
the  record;  which,  on  such  a  review,  it  lacked  power  to 
do:  McCauley  v.  Imperial  Co.,  supra,  page  319;  Dainty 
v.  Jones  &  L.  S.  Co.,  263  Pa.  109, 113. 

As  some  explanation  of  the  erroneous  course  thus  pur- 
sued, the  report  of  the  board  indicates  a  fundamentally 
wrong  idea  of  its  powers  and  duties.  For  instance,  it  is 
there  stated :  "[1]  We  have  no  evidence  that  will  justify 
us  in  connecting  the  vomiting  with  the  death,  nor  [2] 
the  burnt  clothing  with  the  vomiting" ;  whereas,  on  the 
appeal  then  pending,  neither  was  a  proper  test  to  be  ap- 
plied. 

We  shall  consider  the  second  test  first.  Under  the 
Pennsylvania  statute  (Act  of  June  2,  1915,  P.  L.  736) 
the  injury  need  not  arise  out  of,  or  be  due  to,  the  person's 
employment,  it  is  sufficient  if  it  happens  in  the  course 
thereof:  Lane  v.  Horn  &  Hardart  Baking  Co.,  261  Pa. 
329,  335.  Here,  concededly,  Clark  died  in  the  course  of 
his  employment,  but  the  question  is,  did  he  meet  death 
as  a  result  of  accidental  "violence  to  the  physical  struc- 
ture of  the  body"?  McCauley  v.  Imperial  Co.,  supra, 
p.  327.  Irrespective  of  anterior  causes,  if  the  vomiting 
took  place  and  this  "extra  effort"  caused  the  rupture  of 
the  aorta,  these  facts  were  sufficient  to  entitle  the  claim- 
ant to  compensation,  and  it  was  not  essential  that  the 
''burnt  clothing"  should  be  connected  with  the  vomiting. 
In  other  words,  the  rupture  itself,  occurring  from  "extra 
effort  in  vomiting,"  would,  under  the  circumstances,  con- 
stitute accidental  violence  to  the  physical  structure  of 
the  body,  within  the  broad  meaning  of  that  term  as  here- 
tofore defined  by  us :  McCauley  v.  Imperial  Co.,  supra,  p. 
326-7 ;  Lane  v.  Horn  &  Hardart  Co.,  supra. 


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CLARK,  Appellant,  v.  LEHIGH  VALLEY  C.  CO.  533 
1919.]  Opinion  of  the  Court 

In  addition  to  the  error  just  discussed,  which  is  typi- 
cal of  others  of  a  like  character,  the  report  of  the  board 
strongly  suggests  a  mistaken  view  of  the  law  relative  to 
the  bearing  upon  the  case  of  Clark's  diseased  condition, 
prior  to  and  at  the  time  of  the  vomiting  which  brought  on 
the  rupture  resulting  in  his  death ;  while  the  fact  that  he 
suffered  from  a  malady  which,  in  time,  might  have  termi- 
nated fatally,  called  for  consideration,  it  was  in  no  sense 
controlling.  If  death  comes,  during  the  course  of  em- 
ployment, in  an  ordinary  way,  natural  to  the  progress 
of  a  disease  with  which  one  is  afflicted,  and  with  which 
he  was  smitten  before  the  accident,  there  can  be  no  re- 
covery (McCauley  v.  Imperial  Co.,  supra,  327;  Lane  v. 
Horn  &  Hardart  Co.,  supra,  333) ;  but,  if  the  demise  is 
brought  about  by  an  injury  due  to  some  mishap,  or  acci- 
dent, happening  during  the  course  of  his  employment,  the 
fact  that  deceased  had  a  chronic  ailment  which  rendered 
him  more  susceptible  to  such  injury  than  an  ordinary 
person  would  be,  will  not  defeat  the  right  to  compensa- 
tion. Upon  this  subject  see  Bradbury's  Workmen's  Com- 
pensation Law  (3d  ed.),  326  to  340,  where  a  general  dis- 
cussion will  be  found  citing  many  cases  illustrative  of 
the  trend  of  judicial  opinion,  which  supports  the  law  as 
we  have  stated  it, — among  others,  Madden's  Case,  222 
Mass.  487,  494.  Certain  of  the  cases  cited  are  governed 
by  statutes  which  differ  somewhat  in  legislative  language 
from  the  Pennsylvania  act;  but  in  no  instance  is  this 
difference  of  a  character  to  affect  the  relevancy  of  the 
decision,  so  far  as  it  involves  the  point  now  before  us. 

All  of  which  brings  us  to  a  consideration  of  the  first 
test  (supra)  applied  in  examining  the  referee's  findings 
and  the  testimony  relating  to  the  cause  of  Clark's  death. 
At  this  point  the  board  mistook  its  powers  and  duties  as 
an  appellate  tribunal,  and  thereby  fell  into  material 
error.  The  question  was  not  as  to  the  existence  of  evi- 
dence which,  in  the  opinion  of  the  reviewing  body,  would 
"justify"  it  "in  connecting  the  vomiting  with  the  death," 
but,  was  there  any  evidence  which,  within  the  bounds  of 


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534    CLAEK,  Appellant,  v.  LEHIGH  VALLEY  C.  CO. 

Opinion  of  the  Court.  [264  Pa. 

reason,  possibly  could  be  held  to  sustain  the  referee's 
findings  connecting  the  vomiting  and  death?  If  such 
evidence  appeared  (and  the  referee's  findings  indicate  it 
did),  then,  albeit  the  board,  on  a  hearing  de  novo,  might 
draw  other  inferences  therefrom  and  rehch  conclusions 
differing  from  those  upon  the  record  before  it,  yet,  in  the 
absence  of  such  a  hearing,  it  was  beyond  the  power  of  that 
body  so  to  do;  and,  on  the  then  pending  appeal,  it  was 
likewise  beyond  its  power  to  reverse  the  referee  on  the 
theory  that  he  had  erred,  as  a  matter  of  law,  in  drawing 
deductions  from  the  testimony  different  from  those  which 
would  have  been  made  by  the  board;  this,  nevertheless, 
is,  in  effect,  what  the  latter  undertook  to  do. 

Therefore,  the  conclusions  of  law,  pretending  to  assert 
a  lack  of  evidence  to  sustain  the  findings  of  the  referee, 
having  been  arrived  at  through  an  examination  that 
ignored  the  controlling  rules  which  should  have  guided 
the  board,  cannot  stand;  and  the  only  findings  of  fact 
properly  before  us  are  those  of  the  referee.  In  the  ab- 
sence of  correctly  derived  conclusions  of  law  to  overcome 
these  findings,  they  are  decisive  (McCauley  v.  Imperial 
Co.,  supra,  p.  329) ;  thereon  claimant  is  entitled  to 
compensation,  and  the  board  erred  in  deciding  otherwise, 
as  did  the  court  below. 

The  judgment  of  the  common  pleas  and  the  order  of  the 
compensation  board  are  both  reversed ;  the  award  of  the 
referee  is  reinstated  and  affirmed. 


Nolle,  Appellant,  v.  Mutual  Union  Brewing 
Company. 

Contract  —  Consideration — Mutuality  —  Stock  subscription— 
Agreement  to  purchase  products  of  the  corporation. 

1.  A  contract  to  purchase  ten  barrels  of  beer  per  week  from  a 
brewing  corporation  entered  into  as  part  of  an  agreement  for  the 


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NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO.      535 

1919.]  Syllabus— Statement  of  Facts. 

purchase  of  twenty  shares  of  the  capital  stock  of  the  corporation  is 

not  lacking  in  mutuality. 

Contract — Executed  contract — Want  of  mutuality  as  defense — 
Receiving  consideration. 

2.  A  party  is  not  in  a  position  to  set  up  lack  of  mutuality  as  a 
defense  to  enforcement  of  a  contract  where  he  has  received  the  con- 
sideration moving  to  him  under  the  contract. 

Contract — Consideration — Validity — Public  policy — Liquor  laws 
—Act  of  May  18, 1887,  Sec.  6,  P.  L.  108— Act  June  9, 1891,  Bee.  2, 
P.  L.  581. 

3.  An  agreement  by  a  retail  liquor  dealer  to  purchase  a  certain 
quantity  of  beer  each  week  from  a  brewing  company  does  not  of- 
fend against  public  policy  as  declared  in  the  statutes  regulating  the 
granting  of  licenses  to  liquor  dealers,  which  provide  in  case  of  re- 
tail dealers  that  the  applicant  for  license  shall  be  the  only  person 
pecuniarily  interested  in  the  business,  and  in  the  case  of  wholesale 
dealers  that  the  applicant  for  license  is  not  in  any  manner  pecuni- 
arily interested  in  the  profits  of  the  business  conducted  at  any  other 
place  in  the  county  where  any  of  the  liquors  are  sold  or  kept  for 
sale,  if  the  brewing  company  in  question  has  no  wholesale  license 
for  the  county  in  which  the  retail  dealer  is  licensed  and  operates 
under  a  State  license  in  an  adjoining  county.  Under  the  contract 
the  brewing  company  derived  no  pecuniary  interest  in  the  retail 
dealer's  business. 

Contract  —  Construction  —  Existing  circumstances — Agree- 
meni  by  dealer  to  purchase  goods  from  manufacturer — Duration — 
No  express  limitation  as  to  time — Right  to  terminate  upon  notice. 

4.  A  contract  by  a  retail  liquor  dealer  to  purchase  shares  of 
capital  stock  of  a  brewing  corporation  and  to  purchase  from  the 
corporation  a  certain  quantity  of  beer  each  week  without  any  limi- 
tation as  to  the  time  he  was  to  continue  purchasing  beer  may  not 
be  terminated  at  any  time  upon  reasonable  notice,  if  it  appears 
that  he  entered  into  the  contract  with  knowledge  that  the  corpora- 
tion sought  to  sell  its  stock  principally  to  liquor  dealers,  inasmuch 
as  the  evident  intention  of  the  parties  was  that  the  agreement 
should  continue  in  force  so  long  as  he  was  engaged  in  the  business 
of  selling  beer  by  retail,  situated  as  he  then  was. 

Mr.  Justice  Simpson  filed  a  dissenting  opinion  in  which  Justices 
Moachzisker  and  Kephart  concurred. 

Argued  March  3, 1919.  Xppeal,  No.  87,  Oct.  T.,  1918, 
by  plaintiff,  from  judgment  of  C.  P.  Allegheny  Co.,  Jan. 


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536     NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO. 

Statement  of  Fact*— Arguments.  [264  Pa. 

T.,  1916,  No.  851,  upon  a  verdict  directed  for  defendant 
in  case  of  Charles  Nolle  v.  Mutual  Union  Brewing  Com- 
pany, a  Corporation.  Before  Bbown,  C.  J.,  Stbwabt, 
Moschzisker,  Fbazbb,  Walling,  Simpson  and  Kbphabx, 
JJ.    Affirmed. 

Assumpsit  to  recover  dividends  upon  shares  of  capital 
stock.    Before  Evans,  J. 

The  defendant  admitted  refusal  to  pay  dividends  upon 
plaintiff's  stock  and  pleaded  by  way  of  set-off  the  amount 
of  profits  it  would  have  made  had  plaintiff  continued  to 
purchase  defendant's  product  as  he  had  agreed  to  do. 

The  court  gave  binding  instructions  for  defendant,  and 
refused  plaintiff's  request  for  binding  instructions. 

Verdict  and  judgment  for  defendant  for  $1,669.86. 
Plaintiff  appealed. 

Errors  assigned  were  rulings  on  evidence,  answers  to 
points,  overriding  plaintiff's  motion  for  a  new  trial  and 
for  judgment  n.  o.  v. 

L.  Pearson  Scott,  with  him  A.  Leo  Weil,  of  Weil  d 
Thorp,  for  appellant. — The  agreement  is  unenforceable 
for  want  of  mutuality  of  obligation :  Huber  Manufactur- 
ing Co.  v.  Smithgall,  19  Pa.  Superior  Ct.  641;  Schlite 
Brewing  Co.  v.  Komp,  118  111.  App.  566;  Koppite-Mel- 
chers  Brewing  Co.  v.  Behm,  130  Mich.  649;  Hudson  v. 
Browning,  264  Mo.  58 ;  Sigua  Iron  Co.  v.  Greene,  88  Fed. 
207;  Martin  v.  Cox,  13  Ga.  App.  236. 

The  agreement  is  void,  as  against  public  policy  and  the 
statutes  relative  to  the  sale  of  liquor  in  this  Common- 
wealth: Act  May  13,  1887,  Section  5,  P.  L.  108;  Act 
June  9, 1891,  Section  4,  P.  L.  258;  Consumers'  Brewing 
Co.  Licenses,  20  Pa.  C.  C.  B.  597;  Bergdoll  v.  Talone,  42 
Pa.  0.  O.  R.  116 ;  Muller  v.  Bohringer,  3  Pa.  C.  C.  B.  144 ; 
Barrett's  License,  26  Pa.  C.  C.  B.  178. 

Contracts  without  time  limit  are  terminable  at  rea- 
sonable notice  by  either  of  the  parties :  Coffin  v.  Landis, 
46  Pa.  426;  McCullough,  etc.,  Crucible  Co.  v.  Philadel- 


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NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO.     587 
1919.]  Arguments — Opinion  of  the  Court. 

phla  Co.,  223  Pa.  336;  Turtle  Creek  v.  Pennsylvania 
Water  Co.,  243  Pa.  415;  Bellevue  Borough  y.  Ohio  Val- 
ley Water  Co.,  245  Pa.  114. 

Donald  Thompson,  with  him  George  E.  Calvert  and 
William  A.  Wilson,  for  appellee. — The  contract  was  not 
void  for  lack  of  mutuality :  Edinboro  Academy  v.  Robin- 
son, 37  Pa.  210;  Jeannette  Bottle  Works  v.  Schall,  13 
Pa.  Superior  Ct.  96;  Person  &  Riegel  Co.  v.  Lipps,  219 
Pa.  99;  Corbet  v.  Oil  City  Fuel  Supply  Co.,  21  Pa.  Su- 
perior Ct.  80. 

There  was  no  violation  of  the  liquor  laws.  Although 
the  contract  might  affect  the  right  to  retain  a  license,  it 
could  not  affect  the  validity  of  the  contract  arising  in  a 
collateral  proceeding:  Highland  Brewing  Co.  v.  Becker, 
52  P.  L.  J.  139. 

The  contract  was  not  void  because  indefinite  as  to  dura- 
tion :  Pierce  v.  Tennessee  Coal,  Iron  &  R.  R.  Co.,  173  U.  S. 
1;  Beck  v.  Walkers,  24  Pa.  C.  C.  R.  403;  McKell  v. 
Chesapeake  &  Ohio  Ry.  Co.,  175  Fed.  321. 

A  corporation  declaring  a  dividend  because  indebted  to 
each  of  its  stockholders  in  the  amount  of  his  respective 
share  and,  in  this  position,  may  set-off  a  debt  owing  by 
the  stockholder  just  the  same  as  any  other  creditor  might 
do:  Phila.,  W.  &  B.  R.  R.  Co.  v.  Cowell,  28  Pa.  329. 

Opinion  by  Mb.  Justice  Stbwabt,  May  5, 1919 : 
The  facts  of  this  case  are  not  in  dispute.  The  appel- 
lant was  a  licensed  retail  liquor  dealer  in  the  City  of 
Pittsburgh ;  the  appellee  is  a  corporation  having  its  prin- 
cipal office  in  Beaver  County,  engaged  in  the  business  in- 
dicated in  its  name.  In  organizing  the  brewing  com- 
pany in  the  year  1907  the  scheme  was  to  secure  as  sub- 
scribers to  the  capital  stock,  so  far  as  practicable,  per- 
sons engaged  in  the  business  of  selling  malt  liquor,  either 
by  retail  or  wholesale,  for  very  obvious  reasons  which 
will  occur  to  any  one.  When  the  appellant  was  ap- 
proached by  the  representatives  of  the  company  soliciting 


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538     NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO. 

Opinion  of  the  Court  [264  Pa. 

stock  subscriptions  he  was  told  that  they  were  soliciting 
subscriptions  from  such  dealers  only;  that  they  did  not 
solicit  subscriptions  from  any  except  such  dealers  as  had 
licensed  places  and  would  engage  to  purchase  from  the 
brewing  company  a  certain  amount  of  beer  each  week. 
With  a  full  understanding  of  the  terms  and  conditions 
thus  expressed  appellant  subscribed  for  twenty  shares 
in  the  capital  stock  of  the  company,  and  as  a  part  of  the 
transaction  signed  the  following  agreement  in  writing — 
"I  do  further  agree  to  purchase  ten  barrels  of  beer  per 
week,  aggregating  520  barrels  per  year.  This  agreement 
is  conditioned  upon  the  fact  that  the  product  delivered  is 
of  a  quality  equal  to  standard  beers  on  the  market,  and 
is  sold  at  a  rate  not  higher  than  that  ruling  in  the  open 
market  at  the  times  and  dates  of  delivery."  Appellant 
purchased  the  ten  barrels  of  beer  per  week  from  the  com- 
pany for  about  three  years,  up  to  August  13, 1910,  when 
he  ceased  his  purchases  though  he  continued  to  be  a 
licensed  dealer.  In  November,  1915,  he  brought  the 
present  action  to  recover  from  the  company  the  amount 
of  dividends  previously  declared  upon  his  stock,  with 
interest  thereon  from  the  time  the  dividends  had  been  de- 
clared, amounting  in  all  to  $1,055.88.  The  brewing 
company  admitting  the  non  payment  of  the  dividends  on 
the  stock  claimed  to  set  off  against  the  plaintiff's  demand 
damages  which  it  sustained  in  consequence  of  plaintiff's 
failure  to  purchase  beer  in  the  quantities  agreed  upon 
during  the  entire  period  from  13th  August,  1910,  to  1st 
November,  1914,  amounting  to  $1,669.86  in  excess  of  the 
plaintiff's  demand.  Neither  side  made  any  question  as  to 
the  accuracy  in  amount  of  the  claim  of  the  other,  pro- 
viding it  was  recoverable.  At  the  conclusion  of  the  evi- 
dence the  learned  trial  judge  affirmed  the  point  submitted 
on  part  of  the  defendant,  that  under  the  pleadings  and 
evidence  in  the  case  the  verdict  should  be  for  the  defend- 
ant, and  instructed  accordingly.  A  verdict  was  rendered 
for  the  defendant  in  the  sum  of  $1,669.86,  and  judgment 
thereon  having  been  entered  this  appeal  followed. 


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NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  00.     539 
1919.]  Opinion  of  the  Court 

The  assignments  of  error  are  six  in  number.  Appellant's 
counsel  in  their  brief  have  had  no  difficulty  in  resolving 
them  into  three,  and  our  consideration  of  the  case  will 
be  correspondingly  limited.  The  first  assails  the  validity 
and  enf orcibility  of  the  contract  evidenced  by  the  writ- 
ten papers,  on  the  ground  (1)  that  it  lacks  mutuality 
in  obligation,  and  (2)  is  void  because  it  offends  against 
public  policy  since  it  gives  to  the  plaintiff,  so  long  as  he 
remained  a  liquor  dealer,  an  illegal  pecuniary  interest  in 
the  business  of  the  brewery,  and  the  agreement  to  buy 
beer  gave  the  brewing  company  an  illegal  pecuniary  in- 
terest in  the  business  of  the  retailer,  and  (3)  that  the 
parties  having  chosen  to  leave  the  period  of  duration  of 
the  contract — that  is,  the  promise  on  part  of  plaintiff  to 
purchase  beer  from  the  brewing  company — without  limi- 
tation as  to  time,  the  contract  was  terminable  by  either 
party  upon  reasonable  notice,  and  that  the  plaintiff  hav- 
ing chosen  to  terminate  it  after  three  years  was  no  longer 
bound  thereby.  If  the  contract  embraced  nothing  more 
than  the  promise  of  the  plaintiff  to  purchase  a  given 
quantity  of  beer  from  the  brewing  company,  want  of 
mutuality  might  well  be  urged ;  it  would  then  be  resolved 
into  a  nudum  pactum,  without  consideration,  and  unen- 
forceable; but  the  promise  to  buy  the  beer  was  only  part 
of  the  contract  which  included  as  well  the  agreement  to 
purchase  a  given  number  of  shares  of  the  capital  stock 
of  the  brewing  company,  the  opportunity  that  was  afforded 
him  for  so  doing  being  the  consideration  moving.  No 
other  conclusion  can  be  derived  from  the  undisputed  tes- 
timony of  the  parties  present  at  the  making  of  the  con- 
tract, and  the  language  employed  in  the  written  promise 
of  the  plaintiff  is  confirmatory  that  the  sale  of  the  stock 
and  the  promise  to  buy  the  beer  were  so  connected  as  to 
constitute  a  single  transaction.  "And  I  do  further 
agree"  reads  the  agreement  to  buy  the  beer,  indicating 
very  clearly  that  another  obligation  had  preceded  and 
that  the  obligation  to  purchase  beer  was  but  part  of  the 


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540     NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO. 

Opinion  of  the  Court  [264  Pa. 

entire  contract  which  certainly  embraced  the  stock  sub- 
scription. The  purchase  of  stock  by  the  plaintiff  was 
fully  ratified  by  the  brewing  company  and  it  constituted 
the  major  part  of  the  stock  on  which  the  dividends  plain- 
tiff sues  for  was  declared.  Aside  from  this,  the  defense 
of  want  of  mutuality  rests  on  a  clear  misunderstanding 
of  the  law.  In  Grove  v.  Hodges,  55  Pa.  504,  it  is  said  by 
Mr.  Justice  Strong — "Want  of  mutuality  is  no  defense 
to  either  party,  except  in  cases  of  executory  contracts.  It 
has  no  applicability  to  an  executed  bargain.  There  are 
many  where  the  obligation  is  all  upon  one  party.  As  to 
one,  the  obligation  was  fulfilled,  the  contract  was  exe- 
cuted when  it  was  made.  As  to  the  other  party  it  remains 
executory.  A  consideration  may  be  either  something 
done,  or  something  to  be  done,  or  a  promise  itself.  When 
it  is  something  already  done  it  is  idle  to  talk  of  want  of 
mutuality.  That  is  to  be  considered  only  when  the  obli- 
gations of  both  parties  are  future."  Here  the  plaintiff 
had  received  the  stock  he  had  bought.  So  much  for  the 
want  of  mutuality. 

The  objection  that  the  contract  offends  against  public 
policy  as  declared  in  our  statutes  is  without  any  greater 
merit.  The  public  statutes  regulating  the  granting  of 
licenses  to  liquor  dealers  are  inapplicable  in  this  case; 
the  facts  show  no  transgression  of  any  of  them.  Our  at- 
tention is  directed  to  Act  of  May  13,  1887,  Sec.  5,  P.  L. 
108,  which  requires  that  an  application  for  a  retail  liquor 
license  shall  set  forth  under  oath  among  other  things — 
"that  the  applicant  is  the  only  person  in  any  manner  pe- 
cuniarily interested  in  the  business  asked  to  be  licensed, 
and  that  no  other  person  shall  be  in  any  manner  pecuni- 
arily interested  therein  during  the  continuance  of  the  li- 
cense." This  is  cited  as  a  statutory  requirement  trans- 
gressed,  since  by  the  contract  the  brewing  company  de- 
rived under  it  a  pecuniary  interest  in  the  plaintiff's  retail 
business.  This  is  a  palpable  non  sequitur.  As  well  say 
that  every  person  from  whom  the  plaintiff  purchased  sup- 
plies to  replenish  his  stock,  of  whatever  character,  there- 


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NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO.     541 
1919.]  Opinion  of  the  Court. 

by  became  pecuniarily  interested  in  his  business.  The 
other  requirements  in  the  petition  for  license  which  were 
supposed  to  show  a  settled  policy  adverse  to  the  acquisi- 
tion of  a  pecuniary  interest  in  the  applicant's  license  are 
to  be  found  in  the  Act  of  9th  June,  1891,  Sec.  4,  P.  L.  257. 
It  is  only  necessary  to  observe  that  all  that  is  there  re- 
quired of  the  applicant  in  this  connection  is  that  he  state 
under  oath — and  that  only  as  the  application  is  for  a 
wholesale  license-r-that  he  is  not  in  any  manner  pecuni- 
arily interested  in  the  profits  of  the  business  conducted 
at  any  other  place  in  said  county  where  any  of  said 
liquors  are  sold  or  kept  for  sale.  Manifestly  these  are 
without  application  here.  The  brewing  company  never 
made  application  for  a  wholesale  license  for  the  sale  of 
liquor  in  Allegheny  County,  and  its  place  of  business  is 
in  Beaver  County,  where  it  operates,  under  a  State 
license.  We  find  nothing  in  the  facts  presented  that  will 
invalidate  in  the  slightest  the  contract  on  the  ground  al- 
leged. 

It  is  next  argued  that  even  though  the  contract  was  of 
binding  force  when  entered  into,  yet,  because  the  period 
of  its  operation  so  far  as  concerns  the  obligations  of  the 
appellant  to  purchase  beer  from  the  brewing  company 
was  indefinitive,  without  limitation  as  to  time,  it  was 
terminable  by  either  party  on  reasonable  notice,  and  the 
plaintiff  having  chosen  to  terminate  it  after  three  years 
was  no  longer  bound  thereby.  The  court  below  held  that 
the  intention  of  the  parties,  if  ascertainable,  was  to  gov- 
ern ;  that  the  intention  here  could  safely  be  derived  from 
the  circumstances  under  which  the  parties  contracted 
and  the  subject-matter  of  the  agreement,  and  that  having 
regarded  to  these  the  evident  intention  of  the  parties  was 
that  the  agreement  should  continue  in  force  so  long  as 
the  plaintiff  was  engaged  in  the  business  of  selling  beer 
by  retail,  situated  as  he  then  was.  The  situation  con- 
tinued the  same  with  respect  to  both  parties  until  1st 
November,  1914,  when  the  plaintiff  discontinued  his 
business  as  a  retailer  of  malt  liquors.    It  was  for  the 


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542     NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO. 

Opinion  of  the  Court — Dissenting  Opinion.  [264  Pa. 
period  of  plaintiffs  default  between  August,  1910,  and 
the  date  of  his  last  purchase,  1st  November,  1914,  when 
the  plaintiff  retired  from  business,  that  the  defendant 
sought  to  recover  damages.  The  court  very  properly  held 
that  for  such  default  plaintiff  was  liable  under  the  con- 
tract. 

In  what  we  have  said  we  have  sufficiently  discussed  the 
several  assignments  of  error.  These  are  overruled  and 
the  judgment  is  affirmed. 

Dissenting  Opinion  by  Mb.  Justice  Simpson,  May  5, 
1919: 

It  is  conceded  that  the  contract  upon  which  defendant 
relies  for  its  claim  of  set-off  is  of  a  dual  character,  one 
part  containing  an  ordinary  agreement  of  stock  subscrip- 
tion, by  which  Nolle  agrees  to  subscribe  for  twenty 
shares  of  stock  in  the  defendant  company,  and  the  other 
part  being  as  follows :  "I  do  further  agree  to  purchase 
ten  barrels  of  beer  per  week,  aggregating  five  hundred 
and  twenty  barrels  per  year.  This  agreement  is  con- 
ditioned upon  the  fact  that  the  product  delivered  is  of  a 
quality  equal  to  standard  beers  upon  the  market,  and  is 
sold  at  a  rate  not  higher  than  that  ruling  in  the  open 
market  at  the  time  and  dates  of  delivery." 

It  seems  to  be  conceded  also  that,  if  this  was  all  there 
was  in  the  case,  Nolle's  obligation  to  purchase  would 
have  been,  as  the  majority  opinion  expresses  it  "termina- 
ble by  either  party  on  reasonable  notice" ;  and  this  is  the 
rule  repeatedly  declared  by  us :  Coffin  v.  Landis,  46  Pa. 
426;  McCullough,  etc.,  Crucible  Company  v.  Philadel- 
phia Company,  223  Pa.  336;  Turtle  Creek  Borough  v. 
Pennsylvania  Water  Company,  243  Pa.  415;  Bellevue 
Borough  v.  Ohio  Valley  Water  Co.,  245  Pa.  114;  but  it  is 
said  "that  the  intention  here  could  safely  be  derived  from 
the  circumstances  under  which  the  parties  contracted 
and  the  subject-matter  of  the  agreement."  As  those  "cir- 
cumstances" rest  in  parol,  the  fundamental  question 
arises :  What  tribunal  is  to  determine  how  far,  if  at  all, 


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NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO.     543 
1019.]  Dissenting  Opinion, 

they  compel  a  conclusion  at  variance  with  the  legal  role 
above  stated.  It  would  be  an  affectation  of  learning  to 
cite  the  authorities  on  that  question,  for  every  judge  of 
this  court  has  repeatedly  said  that  unless  only  one  in- 
ference is  possible  from  the  oral  evidence,  the  question  is 
for  the  jury.  That  the  oral  evidence  admits  of  more  than 
one  inference  here  is  evident  from  the  fact  that  defendant 
in  his  affidavit  of  set-off  avers  the  duty  of  Nolle  to  pur- 
chase the  beer  was  to  continue  "so  long  as  he  could 
legally  purchase  the  same,  for  the  purpose  of  resale"; 
the  court  below  held  it  "was  understood  to  exist  as  long 
as  the  plaintiff,  Nolle,  was  a  stockholder  and  a  licensed 
liquor  dealer" ;  the  majority  opinion  says  "the  evident 
intention  of  the  parties  was  that  the  agreement  should 
continue  in  force  so  long  as  the  plaintiff  was  engaged  in 
the  business  of  selling  beer  by  retail,  situated  as  he  then 
was" ;  and  three  of  the  seven  judges  of  this  court  are  of 
opinion  that  there  is  nothing  in  the  evidence  to  justify  a 
finding  at  variance  with  the  rule  of  reasonable  duration. 

If  it  is  still  thought  this  court  may  itself  determine  the 
question  at  issue  by  considering  the  circumstances  "un- 
der which  the  parties  contracted  and  the  subject-matter 
of  the  agreement,"  the  record  discloses  the  former  to  be 
as  follows: 

The  defendant  was  being  organized  as  a  brewing  com- 
pany, which  wished  to  sell  at  least  part  of  its  capital 
stock  to  retailers  who  would  agree  to  purchase  part  of 
its  beer.  Its  subscription  agent  called  upon  plaintiff  and 
asked  him  to  subscribe  to  the  stock.  The  only  evidence 
of  what  occurred  between  them  is  as  follows : 

"Q.  When  you  went  to  see  Mr.  Nolle,  did  you  explain 
the  purposes  of  this  organization? 

"A.  Yes;  we  explained  it  to  Mr.  Nolle  the  same  as  to 
every  retail  liquor  dealer  that  we  went  to  see. 

"Q.  What  did  you  tell  him? 

"A.  We  said  to  him  that  we  were  soliciting  stock- 
holders for  this  brewery,  and  only  such  dealers  that  held 
a  retail  license  and  wholesalers  that  sold  malt  liquors ; 


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541     NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO. 

Dissenting  Opinion.  [261  Pa. 

we  did  not  solicit  any  stock  from  any  one  except  they  had 
a  licensed^place  and  would  be  willing  to  subscribe  to  a 
certain  amount  of  beer.  Mr.  Nolle  agreed  to  that,  and  we 
explained  it  thoroughly,  the  proposition,  and  he  signed 
the  application  for  stock." 

It  will  be  noticed  that  nothing  is  said  as  to  the  time 
Nolle  was  to  continue  taking  beer  from  defendant,  or 
that  the  purpose  of  the  organization  was  to  have  only 
venders  of  beer  as  stockholders  (though  it  is  said  they 
were  the  only  ones  being  solicited  to  purchase  stock),  or 
that  only  stockholders  were  to  purchase  defendant's  beer. 
The  absence  of  anything  to  show  that  Nolle  agreed  to  be 
bound  for  an  indefinite  length  of  time,  is  potent  evidence 
that  it  was  not  intended  he  should  be,  for  it  would  have 
been  easy  to  say  so  had  it  been  so  intended.  It  is  evi- 
dent defendant  wished  its  stockholders  who  were  vendors 
of  beer  to  be  customers  for  some  length  of  time,  and 
Nolle  was  willing  to  agree  to  be  so,  but  the  question  is, 
for  what  length  of  time?  On  that  point  both  the  con- 
tract and  the  evidence  are  absolutely  silent,  and  there  is 
nothing  from  which  it  can  be  concluded  Nolle  was  to  be 
bound  beyond  a  reasonable  time,  which  would  cover  the 
crucial  period  in  the  corporation's  existence,  namely, 
when  it  was  building  up  its  trade.  To  assert  anything 
more  on  the  evidence  here,  is  to  make  a  contract,  not  to 
construe  one. 

In  my  judgment  everything  said  and  written  is  more 
compatible  with  a  reasonable  duration  for  the  contract, 
than  with  an  indefinite  one,  and  therefore  nothing  in  this 
record  justifies  a  variance  from  the  legal  rule.  The  law 
of  reasonable  duration  is  in  accordance  with  the  principle 
that  parties  put  all  of  their  agreement  into  the  writing, 
all  prior  conversations  being  merged  therein ;  with  the 
presumption  that  parties  intend  an  equality  of  obliga- 
tion, each  being  bound  according  to  the  same  rule;  with 
the  presumption  that  certainty  and  not  indefiniteness  is 
intended,  contracting  parties  being  able  to  see  what  they 
can  do  during  a  reasonable  length  of  time,  but  not  what 


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NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO.     545 
1919.]  Dissenting  Opinion, 

lies  undisclosed  in  the  womb  of  the  future;  and  because 
it  imposes  a  minimum  loss,  discourages  dissatisfaction  . 
and  litigation,  and  leaves  the  parties  free  to  contract  • 
with  others,  when,  if  ever,  differences  arise  between  ; 
them.  In  other  words,  it  applies  the  principles  upon  i 
which  the  "reasonable  time"  and  the  "restraint  of  trade"  ) 
doctrines  are  founded,  leaving  to  the  parties  the  power  to  ■ 
contract  otherwise,  if  they  see  fit  so  to  do,  but  not  as-  ' 
suming  that  they  so  intend  when  they  do  not  say  so. 

On  the  other  hand,  no  reason  is  given  why  the  term 
of  plaintiff's  continuance  in  business  should  be  adopted 
instead  of  defendant's  continuance  in  business,  or  plain- 
tiff's ownership  of  the  stock,  or  all  three  combined,  or  the 
reasonable  duration  rule  above  set  forth,  any  of  which 
could  just  as  well  be  "derived  from  the  circumstances 
under  which  the  parties  contracted  and  the  subject-mat- 
ter of  the  agreement."  It  is  true  the  conclusion  which 
limits  the  contract  to  the  period  while  Nolle  was  in  busi- 
ness at  his  then  present  location  avoids  some  of  the  pit- 
falls which  the  opinion  of  the  court  below  leaves  open, 
but  it  suggests  enough  of  its  own  to  indicate  the  lack  of 
safety  in  accepting  it  as  a  conclusion  of  law.  As  already 
quoted,  it  interprets  the  contract  to  mean  it  "should  con^ 
tinue  in  force  so  long  as  plaintiff  was  engaged  in  the  busi- 
ness of  selling  beer  by  retail,  situated  as  it  then  was." 
But  why  "situated  as  it  then  was"?  Nothing  in  the  con- 
tract or  conversation  implies  it.  Evidently  the  conclu- 
sion reached  would  appear  too  forced  without  that  clause, 
for  otherwise  the  contract  might  continue  although 
Nolle  sold  beer  in  other  places  than  Pittsburgh.  With  it 
in,  could  he  have  moved  next  door,  or  into  the  next  street 
and  have  escaped  liability?  Or  if  not,  how  far  away 
must  he  have  moved  to  be  rid  of  it?  Or  might  he  have 
ceased  to  sell  beer  at  retail  the  day  after  the  contract  was 
made  and  have  thereby  avoided  it,  and  could  he  have 
later  started  again  without  renewing  it?  And  is  he  at  the 
mercy  of  defendant  who  may  either  sell  or  refuse  to  sell 
to  him,  as  it  chooses,  he  continuing  bound  until  it 
Vol.  cclxiv— 35 

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546     NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO. 

Dissenting  Opinion.  [364  Pa. 

pleases  defendant  to  release  him  by  refusing  to  sell  to 
him  farther ;  and  if  the  duty  to  sell  is  also  to  be  implied, 
what  is  the  extent  of  the  implication?  Must  defendant  be 
at  its  present  location,  or  near  by,  or  does  its  duty  con- 
tinue though  Nolle  and  it,  one  or  both,  in  the  approaching 
prohibition  times,  move  to  other  places  where  beer  may 
be  sold?  And  is  it  legally  bound  to  brew  and  sell  so  long 
as  any  of  its  numerous  stockholders,  who  are  vendors  of 
beer,  desire  it  to  continue  doing  so,  though  but  one  pur- 
chaser is  left  and  it  is  selling  at  a  loss?  It  is  no  answer 
to  these  questions  to  say  they  will  be  solved  when  they 
arise,  for  the  fact  that  it  is  possible  for  them  to  arise 
under  the  construction  the  majority  place  on  the  con- 
tract, makes  them  important  in  determining  what  the 
contract  really  means. 

From  those  doubts  and  uncertainties  one  can  safely 
turn  to  the  rule  of  law  above  stated,  for  it  is  both  certain 
and  equitable,  and  perhaps  is  nowhere  better  expressed 
than  by  Lord  Denman,  in  Apsden  v.  Austin,  5  Ad.  & 
Ellis  (n.  s.)  671,  quoted  and  followed  by  us  in  Coffin  v. 
Landis,  supra :  "It  will  be  found  that  where  words  of  re- 
cital or  reference  manifest  a  clear  intention  that  the 
parties  should  do  certain  acts,  the  courts  have  f  rom  them 
inferred  a  covenant  to  do  such  acts,  and  sustained  actions 
of  covenant  for  the  nonperformance,  as  if  the  instruments 
had  contained  express  covenants  to  perf orm  them.  But 
it  is  a  manifest  extension  of  that  principle  to  hold  that 
where  parties  have  expressly  covenanted  to  perform 
certain  acts,  they  must  be  held  to  have  impliedly  cove- 
nanted for  every  act  convenient  or  even  necessary  for  the 
perfect  performance  of  their  express  covenants.  When 
parties  have  entered  into  written  engagements  with  ex- 
press stipulations,  it  is  manifestly  not  desirable  to  ex- 
tend them  by  any  implications;  the  presumption  being 
that,  having  expressed  some,  they  have  expressed  all  the 
conditions  by  which  they  intend  to  be  bound  under  that 
instrument.  It  is  possible  that  each  party  to  the  pres- 
ent instrument  may  have  contracted  on  the  supposition 


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NOLLE,  Appellant,  v.  MUTUAL  UNION  B.  CO.     547 
1919.]  Dissenting  Opinion, 

that  the  business  would  in  fact  be  carried  on,  and  the 
service  in  fact  continued  during  the  three  years,  and  yet 
neither  party  might  have  been  willing  to  bind  himself 
to  that  effect ;  and  it  is  one  thing  for  the  court  to  effectu- 
ate the  intention  of  the  parties  to  the  extent  to  which  they 
may  have  even  imperfectly  expressed  themselves,  and  an- 
other to  add  to  the  instruments  all  such  covenants  as 
upon  a  full  consideration  the  court  may  deem  fitting  for 
completing  the  intention  of  the  parties,  but  which  they 
either  purposely  or  unintentionally  have  omitted.  The 
former  is  but  the  application  of  a  rule  of  construction  to 
that  which  is  written ;  the  latter  adds  to  the  obligations 
by  which  the  parties  have  bound  themselves,  and  is  of 
course  quite  unauthorized  as  well  as  liable  to  great  prac- . 
tical  injustice  in  the  application." 

As  already  pointed  out,  in  the  present  case  we  do  not 
have  even  "words  of  recital  or  reference  [which]  mani- 
fest a  clear  [or  any]  intention"  that  Nolle  should  be 
bound  for  an  indefinite  period,  yet  the  majority  propose 
to  bind  him  by  doing  here  what  we  have  repeatedly  said 
could  not  be  done.  In  my  judgment  the  courts  should 
never  add  a  term  to  a  written  contract,  especially  one  in 
antagonism  to  a  general  rule  of  law  on  the  subject,  unless 
the  term  to  be  added  appears  with  certainty,  as  inevitably 
arising  out  of  the  contract,  and  as  being  the  only  term 
which  could  be  added  to  make  the  contract  reasonable 
and  certain.  Here,  as  above  shown,  the  opposite  con- 
clusion is  true. 

I  would,  therefore,  reverse  the  judgment,  and  award  a 
new  venire,  that  a  jury  might  determine  what  would  be  a 
reasonable  time,  from  and  after  August  13, 1910,  during 
which  Nolle  should  be  held  liable  for  his  refusal  to  take 
the  ten  barrels  a  week  as  agreed  upon. 

Judges  Moschziskeb  and  Kephabt  join  in  this  dissent. 


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548     WINSTON  et  al.  v.  LADNER  et  al.,  Appellants. 

Syllabus— Statement  of  Facts.  [264  Pa. 

Winston  et  al.  v.  Ladner  et  aL,  Appellants. 

Injunction  bond — Liability  —  Determination  —  Preliminary  in- 
junction— Disposition  upon  the  merits. 

1.  On  an  appeal  from  an  order  granting  a  preliminary  injunction, 
the  merits  of  the  case  will  not  be  examined  into  except  to  the  extent 
necessary  to  determine  the  propriety  of  the  injunction  at  that  stage 
of  the  proceeding. 

2.  Liability  upon  an  injunction  bond  is  not  determined  until  a 
determination  upon  the  merits  of  the  case. 

Appeals — Moot  questions — Authority  of  public  officers. 

3.  The  Supreme  Court  will  not  decide  questions  merely  for  the 
purpose  of  establishing  the  authority  of  public  officers  where  its 
judgment  cannot  be  given  effect  in  the  case  in  which  the  questions 
are  raised. 

Argued  March  18,  1919.  Appeal,  No.  322,  Jan.  T., 
1919,  by  defendants,  from  judgment  of  Superior  Court, 
Oct.  T.,  1918,  No.  291,  dismissing  appeal  from  decree  of 
C.  P.  No.  4,  Philadelphia  Co.,  March  T.,  1918,  No.  4993, 
in  equity,  granting  a  preliminary  injunction  in  the  case 
of  John  C.  Winston,  Theodore  J.  Lewis,  Arthur  H.  Lea, 
Cyrus  H.  K.  Curtis,  George  Woodward  et  al.,  v.  Albert 
H.  Ladner,  Jr.,  George  G.  Pierie,  William  A.  Carr,  and 
William  Walsh,  Board  of  Registration  Commissioners 
of  the  City  of  Philadelphia.  Before  Stewart,  Mosch- 
ziskbr,  Frazbr,  Walling  and  Kephart,  JJ.,  Affirmed. 

Appeal  from  the  Superior  Court. 

Bill  in  equity  in  the  common  pleas  for  injunction  re- 
straining registration  commissioners  from  removing 
names  of  persons  from  the  voting  list.  Before  Auden- 
ried,  P.  J.,  Carr  and  Finlbttbr,  JJ. 

The  court  granted  a  preliminary  injunction  restrain- 
ing further  action  by  the  defendants  and  ordered  that  the 
names  of  persons  already  taken  off  the  list  be  restored. 

The  Superior  Court  dismissed  the  appeal  in  the  case. 
See  71  Pa.  Superior  Ct.  238.    Defendants  appealed. 

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[WINSTON  et  al.  v.  LADNBB  et  aL,  Appellants.     549 
1919.]        Assignment  of  Errors — Opinion  of  the  Court 

Errors  assigned  were  in  dismissing  defendants'  appeal 
as  a  moot  question  and  not  sustaining  the  assignments 
of  error  to  the  action  of  the  lower  court. 

Grover  C.  Ladner,  for  appellants. — Where  a  statutory 
bond  is  required  upon  the  issuance  of  a  preliminary  in- 
junction an  appeal  will  not  be  dismissed  where  the  deter- 
mination of  the  question  involved  is  necessary  to  fix  lia- 
bility on  the  bond :  Postal  Telegraph  Cable  Co.  v.  City 
of  Montgomery,  193  Ala.  239;  Thompson  v.  Lynch 
(Okla.),  159  N.W.  1119. 

Where  an  appeal  is  from  an  order  restraining  public 
officials  whose  powers  are  called  into  question,  the  ap- 
peal does  not  become  moot  merely  because  a  time  limit 
fixed  in  the  order  has  expired :  Southern  Pacific  Termi- 
nal Co.  v.  Interstate  Commerce  Commission,  219  XJ.  8. 
498. 

Thomas  Raeburn  White,  for  appellees. — The  questions 
involved  were  merely  academic :  Faust  v.  Cairns,  242  Pa. 
15;  Commonwealth  v.  Mamatey,  257  Pa.  327;  Erie 
Coal  &  Coke  Co.  v.  Deal,  248  Pa.  58 ;  Anders  v.  Vare,  235 
Pa.  143;  Com.  v.  Cairns,  48  Pa.  Superior  Ct.  265;  Mills 
v.  Green,  159  XJ.  S.  651 ;  Richardson  v.  McChesney,  218 
U.  S.  487;  Large  v.  Steer,  121  Pa.  30. 

Opinion  by  Mb.  Justice  Pbazbb,  May  5, 1919 : 
The  Board  of  Registration  Commissioners  of  the  City 
of  Philadelphia,  after  investigation  of  a  number  of  names 
on  the  voters'  list  of  the  city,  sent  to  such  persons  on 
May  14, 1918,  a  notice  to  appear  at  the  office  of  the  board 
on  the  morning  of  May  16th  at  ten  o'clock  to  show  cause 
why  their  names  should  not  be  removed  from  the  voting 
list.  At  the  hearing  following  such  action  many  names 
were  stricken  off  because  the  voter  was  not  a  resident 
at  the  address  given  in  the  list.  In  the  meantime 
the  bill  in  this  case  was  filed  in  the  court  below  to  restrain 
the  action  of  the  commissioners,  and,  after  hearing  May 


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550     WINSTON  et  al.  v.  LADNER  et  al.,  Appellants. 

Opinion  of  the  Court  [264  Pa. 

18th,  a  preliminary  injunction  was  granted  restraining 
defendants  from  striking  additional  names  from  the  list 
until  May  22d,  the  day  following  the  primary  election, 
and,  further,  ordering  that  the  names  of  persons  already 
taken  off  be  restored. 

An  appeal  to  the  Superior  Court  filed  May  20,  1918, 
was  dismissed  because  the  injunction  expired  by 
limitation  May  21, 1918,  and,  under  the  provisions  of  the 
Act  of  May  28, 1915,  P.  L.  576,  the  lists  ceased  to  be  valid 
at  the  beginning  of  the  following  registration  period, 
September  5,  1918,  consequently,  the  questions  involved 
had  become  merely  academic  and  required  no  decision  on 
the  merits.  On  March  5, 1919,  on  petition  of  the  commis- 
sioners, an  appeal  was  allowed  to  this  court. 

Appellants  concede  the  general  rule  established  by 
numerous  cases  that  our  courts  will  not  decide  moot 
questions  or  abstract  propositions  of  law  not  necessary 
to  the  disposition  of  actually  pending  controversies: 
Faust  v.  Cairns,  242  Pa.  15;  Com.  v.  Cairns,  48  Pa. 
Superior  Ct.  265;  Com.  v.  Mamatey,  257  Pa.  327.  They 
contend,  however,  this  case  is  not  within  the  rule,  first, 
because  a  bond  was  required,  previous  to  the  court  below 
issuing  the  injunction,  and  the  determination  of  the 
question  involved  is  necessary  to  fix  liability  on  the 
obligation,  and,  second,  the  question  raised  is  not 
merely  whether  the  names  of  certain  persons  were  il- 
legally stricken  from  the  voting  list,  but  also  concerns 
the  power  of  the  registration  commissioners,  under  the 
law,  to  strike  off  names  in  the  manner  pursued  by  the 
board  and  is,  therefore,  a  question  of  public  interest  prop- 
er for  decision  even  though  merely  academic  in  character. 

The  first  contention  overlooks  the  fact  that  a  reversal 
of  the  court  below  by  the  Superior  Court  would  not  re- 
sult in  establishing  liability  on  the  bond,  because  the 
decision,  being  on  a  preliminary  question,  must  neces- 
sarily refer  the  case  to  final  hearing  and  decision  of  the 
court  below  following  the  remitting  of  the  record  from 
the  Superior  Court.   After  hearing  on  the  merits  and  de- 


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WINSTON  et  al.  v.  LADNER  et  al.,  Appellants.      551 
1919.]  Opinion  of  the  Court. 

termination  of  the  legal  questions  involved,  the  court  be- 
low might  come  to  the  conclusion  the  board's  action  justi- 
fied issuing  an  injunction,  regardless  of  the  disposition 
of  the  appeal  from  the  preliminary  order.  In  such  ap- 
peals the  rule  is  that  the  merits  of  the  case  will  not  be 
examined  into  except  to  the  extent  necessary  to  determine 
the  propriety  of  the  injunction  at  that  stage  of  the  pro- 
ceeding: Delaware  &  Hudson  Co.  v.  Olyphant  Boro.,  224 
Pa.  387;  Ross  Common  Water  Co.  v.  Blue  Mountain, 
etc.,  Water  Co.,  228  Pa.  235,  241;  North  Shore  R.  R.  v. 
Penna.  Co.,  231  Pa.  307.  In  applications  of  this  charac- 
ter liability  on  the  injunction  bond  must  await  the  final 
disposition  of  the  proceeding  on  the  merits  inasmuch  as 
reasons  may  appear  upon  final  hearing  for  granting  an 
injunction  though  a  preliminary  restraining  order  may 
have  been  dissolved  in  the  meantime:  Large  v.  Steer,  121 
Pa.  30,  33,  34. 

With  respect  to  the  second  point  raised  by  appellants, 
the  court  below,  in  granting  the  injunction,  held  the  com- 
missioners were  without  right  to  strike  names  of  voters 
from  the  list  at  so  late  a  date  as  to  deny  them  the  right 
to  appeal.  The  public  interests  were  protected  by  the  de- 
cree. The  only  persons  now  complaining  are  the  com- 
missioners. Questions  relating  to  their  powers  and  du- 
ties must  come  before  us  in  the  regular  way,  it  not 
being  part  of  our  duty  to  act  in  an  advisory  capacity 
toward  them  with  respect  to  the  extent  of  their  authority, 
except  in  so  far  as  cases  are  actually  brought  before  us  in 
a  proper  manner.  It  may  be  pertinent  at  this  time  to  sug- 
gest the  registration  board  may  avoid  future  difficul- 
ties of  this  character  by  acting  promptly  on  receipt  of 
voting  lists,  so  that  ample  time  may  be  afforded  to  revise 
and  correct  the  lists,  if  necessary,  and  give  opportunity 
to  parties  aggrieved  to  appeal  from  its  action. 

The  judgment  of  the  Superior  Court  is  affirmed. 


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552  WINSOR'S  ESTATE. 

Syllabus— Statement  of  Facta.  [864  Pa. 

Winsor's  Estate. 

Decedents'  estates — Domicile  of  decedent — Intention — Declara- 
tion in  will  —  Evidence  —  Existing  circumstances  —  Probate  of 
will — Family  or  principal  residence — Register  of  Witts  Ad  of  June 
7, 1917,  P.  L.  415,  Section  *. 

Philadelphia  County  and  not  Montgomery  County  must  be  re- 
garded as  the  family  or  principal  residence  of  a  decedent  at  the 
time  of  his  death  for  the  purpose  of  probating  his  will,  where  it  ap- 
peared that  he  maintained  a  home  in  Philadelphia  County  for  fifty 
years  and  declared  in  his  will,  which  was  prepared  with  great  care 
after  repeated  consultations  with  his  attorney,  that  he  resided  in 
Philadelphia,  although  his  death  took  place  in  his  country  home  in 
Montgomery  County,  which  he  had  maintained  for  about  thirty-five 
years,  and  he  had,  up  to  the  time  he  executed  his  will,  regarded 
Montgomery  County  as  his  domicile,  as  he  spent  the  major  portion 
of  each  year  there,  had  registered  and  voted  there,  and  made  annual 
returns  to  the  assessor  of  that  county  of  his  personal  property  for 
the  purpose  of  taxation,  it  appearing  further  that  after  the  execu- 
tion of  his  will,  which  was  about  five  and  one-half  months  before 
his  death,  he  neither  said  nor  did  anything  indicating  that  he 
longer  regarded  his  principal  residence  as  located  in  Montgomery 
County. 

Argued  March  25,  1919.  Appeal,  No.  269,  Jan.  T., 
1919,  by  Robert  C.  Miller,  Register  of  Wills  of  Mont- 
gomery County,  and  Roy  A.  Hatfield,  William  Warner 
Harper  and  Harmon  T.  Bready,  County  Commissioners 
of  Montgomery  County,  from  decree  of  O.  C.  Philadelphia 
Co.,  Oct.  T.,  1917,  No.  52,  dismissing  appeal  from  the 
Register  of  Wills  admitting  will  to  probate  and  granting 
letters  testamentary  thereon  in  the  Estate  of  William  D. 
Winsor,  deceased.  Before  Brown,  C.  J.,  Moschziskbb, 
Frazer,  Walling  and  Kephart,  JJ.    Affirmed. 

Appeal  from  decree  of  register  of  wills  probating  will 
of  William  D.  Winsor,  deceased,  and  granting  letters  tes- 
tamentary thereon.    Before  Lamorelle,  P.  J. 


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WINSOR'S  ESTATE.  558 

1919.]  Statement  of  Facta — Opinion  of  the  Court 

The  orphans'  court  dismissed  the  appeal.  See  27  Pa 
Dist.  R.  1010.  Robert  C.  Miller,  Register  of  Wills  of 
Montgomery  Co.,  et  al.,  appealed. 

Errors  assigned  were,  the  findings  of  the  court  as  to 
the  domicile  of  the  decedent  and  the  decree  dismissing  the 
appeal. 

M.  B.  Saul,  of  Prichard,  Saul,  Bayard  &  Evans,  with 
him  Evans,  High,  Dettra  &  Svoartz,  for  appellants. — In 
the  present  case,  where  the  domicile  is  one  of  choice,  the 
elements  necessary  for  the  creation  of  the  domicile  must 
be  that  of  residence  and  animus  manendi :  Hairston  v. 
Hairston,  27  Miss.  704;  Chariton  County  v.  Moberly,  59 
Mo.  238;  Arnold  v.  United  States,  1  Fed.  Cas.  1181; 
Burnham  v.  Rangeley,  1  Woodbury  &  Minot  Rep.  (U.  S.) 
7. 

While  voting  is  not  conclusive  evidence  of  a  man's 
domicile,  it  is  well  nigh  so:  Shelton  v.  Tiffin,  6  How.  (U. 
8.)  183;  Fry's  Election  Case,  71  Pa.  302. 

The  recital  in  the  will  is  not  conclusive  upon  the  actual 
fact  of  the  decedent's  domicile :  Cook's  Est.,  27  Dist.  Rep. 
1006;  Dalrymple's  Est.,  215  Pa.  367. 

Charles  Biddle,  with  him  J.  Rodmcm  Paul,  Eenry  R. 
Edmunds  and  Robert  M.  Boyle,  for  appellees. — The  tes- 
tator had  a  right,  to  choose  his  residence  and  when  his 
choice  is  founded  on  actual  physical  residence  in  a  par- 
ticular district  it  is  conclusive  of  the  matter  for  the  pur- 
poses of  his  will :  Arnold  v.  United  States,  1  Fed.  Cas. 
1181 ;  Burnham  v.  Rangeley,  1  Woodbury  &  Minot  Rep. 
(U.  S.)  7. 

Opinion  by  Mb.  Chief  Justice  Brown,  May  5, 1919 : 
William  D.  Winsor  died  at  Ardmore,  Montgomery 
County,  this  State,  September  1,  1917.  His  will,  exe- 
cuted in  the  City  of  Philadelphia,  March  19,  1917,  was 
admitted  to  probate  by  the  register  of  wills  of  Philadel- 
phia County,  September  6, 1917,  and  letters  testamentary 


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554  WINSOR'S  ESTATE. 

Opinion  of  the  Court.  [264  Pa. 

were  granted  to  the  executors  therein  named.  From  the 
admission  of  the  will  to  probate  in  Philadelphia  County 
the  register  of  wills  of  Montgomery  County  appealed  to 
the  court  below,  on  the  ground  that  the  family  or  prin- 
cipal residence  of  the  testator  at  the  time  of  his  death 
was  in  Montgomery  County.  The  commissioners  of  that 
county  were  granted  leave  to  intervene  as  appellants,  and 
from  the  decree  of  the  court  below,  sustaining  the  action 
of  the  register  of  wills  of  Philadelphia  County  in  admit- 
ting the  will  to  probate,  they  and  the  register  of  wills  of 
their  county  have  appealed  to  this  court.  Their  right  to 
appeal  is  not  questioned  by  the  appellees,  and  we  do  not, 
therefore,  pass  upon  it.  The  sole  question  for  our  consid- 
eration is,  where  was  the  family  or  principal  residence  of 
the  decedent  at  the  time  of  his  death?  If  it  was  in 
Montgomery  County,  the  will  ought  to  have  been  pre- 
sented to  the  register  of  that  county  for  probate;  if  it 
was  in  Philadelphia  County,  this  appeal  must  be  dis- 
missed. 

"Wills  shall  be  probated  only  before  the  register  of 
wills  of  the  county  within  which  was  the  family  or  prin- 
cipal residence  of  the  decedent  at  the  time  of  his  de- 
cease" :  Section  4,  Act  of  June  7,  1917,  P.  L.  415.  For 
fifty  years  the  testator  maintained  a  home  in  the  City  of 
Philadelphia.  From  1883  he  had  another  home,  during  a 
portion  of  each  year,  in  Montgomery  County,  and  since 
that  year  he  lived  in  his  Philadelphia  home  only  during 
the  winter  months,  leaving  it  annually  in  the  early  spring 
to  spend  the  summer  and  early  fall  in  his  country  home 
in  Montgomery  County.  Though  he  had  these  two  homes, 
he  had  but  one  legal  domicile,  and  it  was  for  him  to  de- 
termine where  it  should  be,  with  the  right  to  change  it  at 
any  time  from  one  county  to  the  other :  Jacobs  on  the 
Law  of  Domicile,  sec.  423;  Story  on  Conflict  of  Laws, 
Sec.  47;  Hairston,  Jr.,  et  al.  v.  Hairston,  27  Miss.  704; 
Chariton  County  v.  Moberly,  59  Mo.  238.  Up  to  the  time 
he  executed  his  will  the  testator  had  undoubtedly  regard- 
ed Montgomery  County  as  his  domicile,  for  he  spent  the 


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WINSOR'S  ESTATE.  555 

1919.]  Opinion  of  the  Court, 

major  portion  of  the  year  there,  had  registered  and  voted 
there,  and  made  annual  returns  to  an  assessor  of  that 
county  of  his  personal  property  for  the  purpose  of  tax- 
ation. His  last  return  was  made  in  December,  1916,  for 
the  year  1917;  but  while  he  had  thus  himself  clearly  es- 
tablished and  proclaimed  his  domicile,  when  he  was  about 
to  set  his  house  in  order  for  his  final  departure  from  it, 
it  was  for  him  to  declare  which  of  his  two  homes  he  re- 
garded, and  was  to  be  regarded,  as  his  family  or  princi- 
pal residence.  That  he  did  so  declare  was  most  clearly 
established.  His  will  was  drawn  after  repeated  consul- 
tations with  him  by  Henry  R.  Edmunds,  Esq.,  a  careful 
and  learned  member  of  the  Philadelphia  bar.  He  knew, 
and  the  testator  is  presumed  to  have  known,  that  the  will 
would  have  to  be  admitted  to  probate  in  the  county  in 
which  the  latter  had  his  family  or  principal  residence — 
his  domicile.  The  following  is  the  testimony  of  Mr.  Ed- 
munds as  to  what  occurred  in  connection  with  the  draw- 
ing of  the  will:  "Q.  Mr.  Edmunds,  how  many  years 
were  you  acquainted  with  Mr.  Winsor,  William  D.  Win- 
sor  ?  A.  I  was  his  attorney ;  I  was  his  attorney  for  about 
fifty  years ;  how  much  before  that  time,  I  don't  remember, 
but  I  was  also  counsel  for  his  father,  and  I  knew  him  in- 
timately for  fifty  years.  Q.  You  drew  the  will  of  Mr. 
Winsor  which  has  been  probated?  A.  Yes,  sir.  Q.  Prom 
whom  did  you  get  instructions  for  that  will?  A.  From 
him.  Q.  Where?  A.  In  my  office.  Q.  Will  you  tell  us, 
please,  what,  if  anything,  occurred  between  you  and  him 
as  his  counsel  at  the  time  you  took  the  instructions  for 
that  will?  A.  At  that  time,  I  knew  Mr.  Winsor  lived  in 
two  places.  He  had  a  country  place  and  a  city  place. 
I  knew  he  resided  at  2019  Pine  street  for  at  least  forty 
years.  He  also  lived  out  in  Montgomery  County,  and 
I  said  to  Mr.  Winsor :  'What  shall  I  put  down  in  the  will 
as  your  residence?'  He  said  'Philadelphia.'  I  remember 
that  distinctly.  Q.  Was  it  for  that  reason?  A.  He  must 
have  taken  that  home  too.  We  wrote  it  in  paragraphs. 
Mr.  Winsor  would  take  it  home.    I  would  write  three  or 


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556  WINSOR  >S  ESTATE. 

Opinion  of  the  Court  [264  Pa. 

four  paragraphs,  and  then  he  would  take  it  home  and 
submit  it  to  his  family,  and  I  put  that  in.  We  must  have 
been  two  or  three  weeks  writing  that  will.  Q.  Was  it 
written  at  the  beginning  of  this  will?  A.  Yes,  sir.  Q. 
That  appeared  in  it  the  whole  time  this  was  going  on,  % 
William  D.  Winsor,  of  the  City  of  Philadelphia  and  State 
of  Pennsylvania,  do  make  this  will' ;  that  was  in  it  all 
this  time?  A.  All  the  time,  certainly.  It  occurred  many 
times.  You  know,  I  was  puzzled  by  that  myself.  I  live 
in  both  places  that  way.  I  wanted  to  know  whether  I 
called  my  residence  where  I  vote.  Q.  I  notice,  Mr.  Ed- 
munds, on  the  first  page  of  the  will,  the  fourth  item,  these 
words :  'Item.  I  hereby  give,  devise  and  bequeath  unto 
my  dear  wife  Elizabeth  my  house  No.  2019  Pine  Street, 
Philadelphia,  and  also  the  lands  and  premises  owned  by 
me,  situate  in  Lower  Merion  Township,  Montgomery 
County,  Pennsylvania,  named  by  me  and  commonly 
known  as  "Hedgeley,"  together  with  all  the  buildings  and 
improvements  thereon  of  whatsoever  nature,  absolutely 
and  in  fee  simple.'  How  did  you  come,  in  drafting  this 
will,  to  say  'my  house  No.  2019  Pine  Street,'  'and  also  the 
lands  and  premises  owned  by  me'?  A.  That  is  his  own 
language ;  that  language  was  in  his  will,  during  the  two 
weeks  or  more  that  we  were  going  over  it ;  it  was  con- 
structed and  reconstructed.  He  was  there  several  times. 
Mr.  Winsor  must  have  lived  on  Pine  Street  at  least  forty 
years." 

The  devise  of  testator's  real  estate  in  words  dictated 
by  him  to  Mr.  Edmunds  is  not  without  significance,  for  if 
he  had  regarded  his  family  or  principal  residence  as  lo- 
cated in  Montgomery  County,  he  would  naturally  have 
referred  to  it  as  such,  instead  of  merely  styling  his  prop- 
erty there  as  "the  lands  and  premises  owned  by  me,  situ- 
ate in  Lower  Merion  Township,  Montgomery  County, 
Pennsylvania."  After  the  execution  of  his  will,  in  which 
he  declared  himself  to  be  a  resident  of  the  City  of  Phila- 
delphia, he  neither  said  nor  did  anything  indicating  that 
he  longer  regarded  his  family  or  principal  residence  as 


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WINSOR'S  ESTATE.  557 

1919.]  Opinion  of  the  Court. 

located  in  Montgomery  County,  and  the  learned  president 
judge  of  the  court  below  correctly  held:  "This  is  the 
latest  utterance  on  the  subject  so  far  as  the  record  of  the 
case  discloses,  and  as  no  unequivocal  act  was  performed 
by  Mr.  Winsor  after  the  execution  of  the  will  the  hear- 
ing judge  finds  as  a  fact  that  he  himself  determined  upon 
Philadelphia  as  being  his  principal  or  family  residence. 
The  fact  that  he  died  in  Montgomery  County  is  a  matter 
of  no  moment,  in  that  the  death  took  place  in  August,  at 
which  time  of  the  year,  according  to  all  of  the  testimony, 
he  used  his  Montgomery  County  residence." 

Appeal  dismissed  and  decree  affirmed,  at  the  costs  of 
the  appellants. 


Guaranty  Motors  Company  v.  Hudford  Philadel- 
phia Sales  Company,  Appellant. 

Pleading — Counterclaim — Sufficiency — Damages — Breach  of  con- 
tract to  furnish  goods  for  resale — Time  for  delivery — Sales — An- 
ticipated profits. 

1.  A  counterclaim  should  be  set  forth  with  as  much  precision  and 
exactness  as  is  required  in  the  statement  of  a  cause  of  action  upon 
which  proceedings  are  instituted. 

2.  A  counterclaim  for  damages  resulting  from  the  breach  of 
oral  agreements  to' furnish  certain  automobile  units,  is  not  suf- 
ficiently pleaded,  where  there  is  no  averment  specifying  the  time 
within  which  they  were  to  be  furnished,  nor  an  averment  that  the 
plaintiff  knew  that  they  were  for  immediate  use,  nor  that  any  sales 
of  the  units  had  been  made,  nor  any  contracts  in  existence  relating 
to  them,  nor  anything  averred  which  would  require  the  plaintiff  to 
furnish  them  before  the  alleged  default,  it  appearing  that  the 
contracts  to  furnish  the  units  did  not  expire  until  eight  months 
after  that  time.  A  statement  that  the  defendant  would  have  been 
able  to  sell  the  units,  is  merely  an  expression  of  hope  and  expec- 
tation. 

3.  A  counterclaim  for  damages  for  breach  of  a  contract  to  fur- 
nish goods  for  resale  is  not  sufficiently  pleaded,  where  it  sets  forth 
no  facts  from  which  loss  of  anticipated  profits  could  be  reasonably 
ascertained,  even  if  they  could  be  recovered. 


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558  GUARANTY  M.  CO.  v.  HUDPORD  P.  S.  CO.,  Appel. 

Syllabus— Assignment  of  Error.  [264  Pa. 

Pleading — Counterclaim — Unpaid  salary — Wrongful  discharge — 
Tender  of  performance  after  discharge. 

4.  A  counterclaim  for  salary  after  discharge  from  employment, 
which  merely  avers  employment,  discharge,  and  balance  due  is  insuf- 
ficiently pleaded  for  failure  to  aver  wrongful  discharge,  tender  of 
performance  after  discharge,  and  in  what  manner  the  salary  was  to 
be  paid,  whether  monthly,  quarterly  or  annually. 

Pleading  —  Contract  to  organize  corporation — Writing  —  Oral 
transfer  of  stock — Time — Consideration — Services — Time  of  ren- 
dering— Notice  to  perform  agreement. 

5.  A  counterclaim  for  damages  for  failure  of  plaintiff  to  comply 
with  an  agreement  to  transfer  all  business  assets  to  a  corporation 
to  be  thereafter  formed  and  to  transfer  twenty-five  per  cent  of  the 
capital  stock  to  the  defendant  for  services  performed  under  it*  is 
insufficiently  pleaded  where  it  does  not  specify  whether  the  con- 
tract was  oral  or  in  writing,  nor  aver  when  the  services  were  per- 
formed, nor  when  the  corporation  was  to  be  formed,  nor  that  a 
reasonable  time  had  elapsed  in  which  to  organize,  nor  that  the  plain- 
tiff had  been  notified  to  proceed  to  perfect  his  part  of  the  agreement. 

Argued  March  27,  1919.  Appeal,  No.  129,  Jan.  T., 
1919,  by  defendant,  from  judgment  of  C.  P.  No.  4,  Phil- 
adelphia Co.,  March  T.,  1918,  No.  3917,  making  absolute 
rule  for  judgment  for  want  of  a  sufficient  affidavit  of  de- 
fense in  the  case  of  Samuel  W.  Prussian,  trading  as 
Guaranty  Motors  Company  v.  Hudford  Philadelphia 
Sales  Company,  a  Corporation.  Before  Moschziskhb, 
Frazer,  Walling,  Simpson  and  Kephart,  J  J.   Affirmed. 

Rule  for  judgment  for  want  of  a  sufficient  affidavit  of 
defense.    Before  Audbnbibd,  P.  J. 

The  affidavit  of  defense  set  up  a  number  of  counter- 
claims. The  court  was  of  opinion  that  they  were  not 
properly  pleaded  and  directed  judgment  for  plaintiff  for 
$7,870.60,  being  the  amount  sued  for  less  the  sum  of  $1,- 
721.38.    Defendant  appealed. 

Error  assigned  was  the  order  of  the  court  making  ab- 
solute the  rule  for  judgment  for  want  of  a  sufficient  affi- 
davit of  defense. 


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GUARANTY  M.  CO.  v.  HUDFORD  P.  S.  CO.,  AppeL  559 
1919.]  Arguments — Opinion  of  the  Court. 

Walter  Willard,  with  him  Bronte  Greenwood,  Jr.,  for 
appellant. — A  motion  for  judgment  for  want  of  a  suffi- 
cient affidavit  of  defense  is  only  proper,  under  the  Prac- 
tice Act  of  1915,  where  such  affidavit  contains  no  set-off 
or  counterclaim:  Sturtevant  Co.  v.  York  Card  &  Paper 
Co.,  27  Dist.  Rep.  549. 

Wm.  Findlay  Brown,  with  him  Charles  B.  Downs,  for 
appellee. — Damages  claimed  should  be  capable  of  being 
definitely  ascertained. 

In  the  absence  of  a  special  agreement,  a  vendor,  by  a 
failure  to  deliver,  does  not  become  liable  for  damages 
arising  from  the  inability  of  the  vendee  to  perform  a  con- 
tract for  the  resale  of  the  article  or  for  a  loss  of  profits 
which  might  have  been  made  on  a  resale :  David  v.  Whit- 
mer  &  Sons,  46  Pa.  Superior  Ct.  307 ;  Einports  v.  Breon, 
193  Pa.  309;  Pennypacker  v.  Jones,  106  Pa.  237;  Clyde 
Coal  Co.  v.  Pittsburgh  &  Lake  Erie  R.  R.  Co.,  226  Pa.  391. 

Unless  defendant  was  wrongfully  discharged  he  had  no 
right  of  action  against  the  employer:  McCahan'g  Est., 
221  Pa.  186. 

Opinion  by  Mr.  Justice  Kbphabt,  May  5, 1919 : 
This  action  was  brought  to  recover  for  automobile 
equipment  sold  to  the  defendant.  The  affidavit  of  defense 
admits  delivery,  and  the  correctness  of  the  prices 
charged,  with  some  minor  exceptions,  which  deducted, 
left  a  balance  of  $7,870.60 ;  as  a  defense  to  this  balance, 
and  for  a  certificate,  a  number  of  counterclaims  in  the 
sum  of  $168,459  were  interposed;  the  court  below,  on 
motion  for  judgment  for  want  of  a  sufficient  affidavit, 
held  they  were  not  well  pleaded  and  directed  judgment 
to  be  entered,  from  which  defendant  appeals. 

A  counterclaim  should  be  set  forth  with  as  much  pre- 
cision and  exactness  as  is  required  in  the  statement  of  a 
cause  of  action  upon  which  proceedings  are  instituted. 
Three  of  the  counterclaims  advanced  ask  for  damages 
resulting  from  the  breach  of  oral  agreements  to  furnish 


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560  GUARANTY  M.  CO.  v.  HUDFORD  P.  S.  CO.,  AppeL 

Opinion  of  the  Court.  [264  Pa. 

certain  automobile  units.  These  agreements,  contain- 
ing similar  terms,  were  with  the  defendants,  the  Hudf ord 
Company  and  the  Hudf  ord  Sales  Company;  each  claim 
is  set  out  separately,  but  they  are  all  subject  to  the  same 
objection.  The  units  called  for  in  the  contracts  were 
commercial  bodies  to  be  fitted  on  the  chassis  of  pleasure 
cars.  There  was  nothing  specifying  the  time  within 
which  the  units  were  to  be  furnished,  nor  is  there  an  aver- 
ment that  the  appellee  knew  that  the  units  were  for  im- 
mediate use,  or  that  any  sales  of  the  units  had  been  made, 
or  of  any  contracts  in  existence  relating  to  the  units; 
nor  is  it  pretended  that  any  such  agreements  existed. 
The  statement  that  the  defendant  would  have  been  able 
to  sell  the  units  is  merely  an  expression  of  their  hope  and 
expectation.  There  is  nothing  averred  which  would  re- 
quire the  appellee  to  furnish  the  units  before  the  alleged 
default ;  the  contracts  did  not  expire  until  eight  months 
after  that  time.  As  a  matter  of  fact,  the  defendant  neg- 
lected to  pay  for  all  the  units  it  had  received,  and  the  ap- 
pellee was  justified  in  refusing  further  shipments,  as  the 
appellant  was  clearly  in  default,  and  annullment  of  the 
contract  could  have  been  made  on  that  account.  Even  if 
the  contracts  were  well  pleaded,  the  averment  as  to  the 
damages  suffered  is  incomplete ;  there  are  no  facts  set 
forth  from  which  the  loss  of  anticipated  profits  could  be 
reasonably  ascertained,  even  if  they  could  be  recovered. 
Without  going  into  further  detail,  the  affidavit  does  not 
set  forth  a  single  claim  under  any  of  the  contracts  that 
could  be  sustained.  The  assignments  of  the  Hudford 
Sales  Corporation  of  New  York  and  the  Hudford  Com- 
pany of  Chicago  were  made  to  the  Pennsylvania  com- 
pany shortly  before  suit  was  brought  and  after  a  demand 
for  settlement  had  been  made. 

Another  assigned  claim  was  an  unpaid  salary  account, 
amounting  to  $8,200,  of  William  F.  Hudson,  employed 
by  the  appellee  as  a  purchasing  agent  at  a  salary  of  $10,- 
000  per  year;  he  was  paid  $1,800  and  discharged  shortly 
after  employment.    The  affidavit  does  not  show  in  what 


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GUARANTY  M.  CO.  v.  HUDPORD  P.  S.  CO.,  AppeL  561 
1919.]  Opinion  of  the  Court. 

manner  the  salary  was  to  be  paid,  whether  monthly,  quar- 
terly, or  annually ;  nor  that  Hudson  had  been  wrongfully 
discharged,  or  tendered  performance  after  discharge. 
Both  of  these  are  essential  to  sustain  a  claim  for  wrong- 
ful discharge:  McCahan's Est.  (No.  1), 221  Pa.  186, 187. 
Another  claim  was  assigned  to  appellant  by  John 
Gerosa.  It  arose  out  of  an  agreement  by  the  appellee  to 
transfer  all  business  assets  to  a  corporation  to  be  there- 
after formed.  Gerosa  performed  certain  services  under 
it,  for  which  he  was  to  receive  twenty-five  per  cent  of  the 
total  issue  of  capital  stock ;  the  plaintiff  failed  to  com- 
ply with  the  agreement ;  Gerosa  now  claims  the  value  of 
the  stock  as  damages.  The  affidavit  does  not  say  when 
the  services  were  performed,  nor  when  the  corporation 
was  to  be  formed,  or  that  a  reasonable  time  had  elapsed  in 
which  to  organize,  or  that  appellee  had  been  notified  to 
proceed  to  perfect  his  part  of  the  agreement.  The 
amount  of  capital  was  not  set  forth  in  the  agreement,  but 
was  expressly  left  to  the  discretion  of  the  plaintiff.  No 
claim  would  arise  until  there  had  been  some  default  or 
breach.  The  supplemental  affidavit  did  not  cure  these 
defects,  the  subsequent  agreement  referred  to,  is  not  at- 
tached as  it  should  be,  if  in  writing;  and,  if  oral,  it 
should  be  specifically  averred.  What  is  here  said  of  the 
Gerosa  claim  applies  to  that  of  his  agent,  Smith,  with  this 
in  addition,  there  are  no  facts  alleged  showing  a  con- 
sideration passing  between  Smith  and  the  appellee  suf- 
ficient to  support  any  claim  or  to  form  the  basis  of  a  cause 
of  action.  Both  claims  are  insufficiently  set  forth  in  the 
affidavit.  We  do  not  pass  on  the  merits  of  the  counter- 
claims. They  are  not  available  in  this  case,  as  a  defense, 
to  bar  a  summary  judgment,  because  they  are  not  'well 
pleaded. 

The  judgment  of  the  court  below  is  affirmed. 


Vol.  cclxiv — 36 

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562  WHAEEN,  Appellant,  v.  DEBSHUCK. 

Syllabus.  [264  Pa. 

iWharen,  Appellant,  v.  Dershuck* 

Trial — Instruction  to  jury — Conduct  of  parties — Action  for  libel. 

1.  The  trial  court  committed  no  reversible  error  in  charging  the 
jury  in  a  libel  suit,  as  follows :  "It  is  rather  a  tame  affair  on  the 
whole  for  a  libel  suit,  which  we  expect  to  be  a  belligerent  perform- 
ance. Both  the  lawyers  and  the  parties  have  behaved  throughout 
with  exemplary  gentleness  and  gentility,  and  the  hair  has  not  been 
flying  or  the  blood  flowing  at  all  in  connection  with  the  proceedings, 
being  tried  in  a  very  genteel  and  expeditious  manner,  starting 
yesterday  afternoon  I  think,  and  being  now  near  its  conclusion." 

Libel — Implied  malice — Publishing  article  known  to  be  false. 

2.  An  instruction  in  a  libel  case  that  if  the  defendant  knew  the 
article  to  be  false  when  he  published  it,  that  would  be  implied 
malice,  is  not  reversible  error  on  the  theory  that  it  gave  the  jury 
to  understand  that  if  he  did  not  know  it  to  be  false,  he  would  be 
free  from  blame. 

Libel— 'Publishing  account  of  public  meeting — Probable  cause — 
Privileged  communication. 

3.  An  instruction  in  a  libel  case  for  publishing  a  false  account 
of  a  public  meeting,  that  if  the  defendant  did  not  know  the  article 
to  be  false,  the  implication  of  malice  could  not  be  drawn  from  the 
article  itself  as  in  ordinary  cases  of  libel,  if  it  was  based  upon  rea- 
sonable or  probable  cause,  for  in  such  a  case  it  was  a  privileged 
communication,  is  not  reversible  error. 

4.  In  such  a  case  an  instruction  that  "We  say  to  you  further  so 
far  as  you  can  observe,  either  from  the  surrounding  circumstances 
or  from  the  article  itself,  the  motive  and  the  manner  were  proper, 
and  therefore  all  the  requirements  of  a  privileged  communication 
would  be  met,  if  it  was  not  known  to  be  false,"  is  not  reversible 
error. 

Libel — Malice  —  Letter  acknowledging  mistake  —  Publication  of 
retraction — Instruction  to  jury. 

5.  It  was  not  error  to  charge  the  jury  that  "in  connection  with 
the  subject  of  malice  I  may  refer  here  to  the  circumstance  that  as 
soon  as  the  matter  or  within  a  reasonable  time,  so  it  seems  to  the 
court,  after  the  matter  was  brought  to  the  attention  of  the  news- 
paper, of  the  reporter  and  of  its  editor,  there  was  not  only  a  letter 
on  the  9th  of  September,  acknowledging  the  mistake  and  offering 
an  explanation  of  it,  but  there  was  also  on  the  29th  of  September, 
in  the  paper  itself,  published  a  retraction,  making  full  amends  as 
far  as  that  goes;  of  course  not  destroying  the  liability,  if  there  is  a 


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WHAREN,  Appellant,  v.  DERSHUCK.  563 

1919.]  Syllabus. 

liability,  but  nevertheless,  in  the  judgment  of  the  court,  going  as 
far  as  could  be  reasonably  expected  in  a  way  of  a  retraction  and  in 
the  way  of  restoring  the  plaintiff  to  the  public  esteem,  if  he  had  lost 
that  esteem." 

Libel— Instruction  to  jury — Time  of  bringing  suit  after  publico' 
Hon — Delay  in  trying  case. 

6.  It  was  not  error  for  the  court  to  instruct  the  jury  in  a  libel 
case  that  no  suit  had  been  brought  for  the  libel  for  eleven  months 
after  publication,  and  that  "of  course  the  first  instincts  of  a  man, 
who  is  really  damaged  by  a  libelous  publication,  is  to  go  to  law  at 
once.  He  don't  waste  time  about  it.  This  suit  was  not  brought  for 
eleven  months.  Then  it  was  not  brought  to  trial,  as  I  have  already 
suggested,  for  seven  years,  1917,  publication  in  1910,  almost  six 
years  after  suit  brought,  almost  seven  years  after  the  article  was 
published." 

Damages — Libel — Mitigation  —  Letter  acknowledging  mistake — 
Retraction — Plaintiff  holding  same  position — Increased  compensa- 
tion— Publication  without  investigation. 

7.  Where  the  defendant  published  in  a  newspaper  on  August  8th 
a  false  account  of  a  meeting  of  the  school  board  it  was  not  error  for 
the  court  to  instruct  the  jury  that  a  letter  of  explanation  acknowl- 
edging the  mistake  dated  September  9th,  and  the  retraction  in  the 
newspaper  on  September  29th,  was  a  sufficient  and  reasonable  re- 
traction and  vindication  as  far  as  it  went. 

8.  The  court  committed  no  error  in  charging  the  jury  that  "never- 
theless it  is  proper  for  you  to  consider  that  there  was  a  retraction  and 
that  the  behavior  of  both  the  reporter  and  of  the  editor — subsequent 
behavior  independent  of  the  article  itself — is  entirely  free  from 
any  exhibition  of  actual  malice,  on  the  contrary,  marked  by  evident 
desire  to  make  amends,  accompanied  by  an  explanation,  the  rea- 
sonableness of  which  is  for  you.  .  The  plaintiff  still  holds  the  po- 
sition as  mail  carrier,  with  increased  compensation.  There  has 
been  no  loss  of  public  or  private  esteem  under  the  evidence  here,  he 
is  just  as  well  regarded  by  the  public  as  he  ever  was.  In  other 
words,  to  sum  up,  there  is  no  proof  in  this  case  of  actual  damage, 
actual  damages  in  dollars  and  cents." 

9.  The  trial  court  committed  no  reversible  error  in  refusing  to 
affirm  a  request  to  charge  that  "if  you  find  the  defendant  published 
the  article  complained  of  without  any  prior  investigation,  that  it 
is  false,  then  your  verdict  should  be  for  the  plaintiff." 

Libel — Malice — Evidence — Discovery  of  falsity — Time  of  making 
retraction — Threatened  legal  proceedings. 

10.  It  was  not  reversible  error  for  the  trial  court  to  refuse  to  af- 
firm a  request  to  charge  that  "if  you  find  that  the  defendant  did  not 


Digitized  by  CjOOQIC 


564  WHAREN,  Appellant,  v.  DERSHUCK. 

Syllabus— Charge  of  Court  below.  [264  Pa. 

make  any  retraction  in  his  paper,  when  the  falsity  of  the  article  was 
called  to  his  attention,  but  waited  until  threatened  with  legal  pro- 
ceedings; and  also  find  for  the  plaintiff,  then  such  action  may  be 
considered  in  connection  with  all  other  evidence  in  the  case,  in  de- 
termining whether  there  was  actual  malice  or  illwill  toward  the 
plaintiff." 

Libel— Responsibility  of  publisher  for  act  of  agent — Malice— 
Punitive  damages. 

11.  The  trial  court  committed  no  reversible  error  in  refusing  to 
affirm  a  request  to  charge  that  "if  the  jury  find  for  the  plaintiff,  and 
find  that  the  reporter  was  the  duly  authorized  agent  of  the  defend- 
ant in  procuring  news  and  in  sending  the  article  complained  of,  and 
that  the  reporter  had  no  ground  to  believe  the  truth  of  the  article, 
but  was  actuated  by  malice  and  illwill  toward  the  plaintiff,  then 
the  defendant  is  responsible  for  such  malice  of  his  agent,  and  you 
may  award  exemplary  or  punitive  damages." 

Libel — MaUce — Mistaken  identity — Inquiry  as  to  identity  of  per* 
son. 

12.  It  was  not  reversible  error  for  the  trial  court  to  affirm  a  re- 
quest to  charge  that  "if  the  jury  believe  that  the  reporter  of  the 
Plain  Speaker,  in  good  faith,  made  inquiry  from  a  responsible  and 
reputable  person  as  to  the  identity  of  the  person  who  informed  the 
school  board  of  the  facts  contained  in  the  alleged  libel,  and  under- 
stood his  informer  to  say  such  person  was  in  fact  Wharen,  the 
plaintiff,  then  the  jury  may  accept  such  circumstances  to  rebut  any 
inference  of  malice  or  negligence." 

Decided  by  a  divided  court. 

Argued  April  14, 1919.  Appeal,  No.  87,  Jan.  T.,  1919, 
by  plaintiff,  from  judgment  of  C.  P.  Luzerne  Co.,  Oct.  T., 
1911,  No.  388,  on  a  verdict  for  defendant  in  the  case  of 
George  W.  Wharen  v.  W.  0.  Dershuck.  Before  Brown, 
C.  J.,  Moschzisker,  Frazbr,  Simpson  and  Kbphart,  JJ. 

Affirmed  by  a  divided  court. 

Action  in  trespass  for  publication  of  a  libeL 
Fuller,  P.  J.,  charged  the  jury  as  follows: 
This  is  a  civil  action  for  libel,  as  distinguished  from  a 
criminal  prosecution  for  libel,  seeking  damages  for  the 


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WHAREN,  Appellant,  v.  DEESHUCK.  565 

1919.]  Charge  of  Court  below. 

plaintiff  in  the  civil  suit,  rather  than  the  punishment  for 
the  offender  in  a  criminal  prosecution. 

It  is  instituted  by  George  W.  Wharen,  spelled  W-h-a-r- 
e-n — George  Washington  Wharen  seems  to  be  his  full 
name,  and  I  state  this  because  it  has  a  bearing  in  connec- 
tion with  the  evidence  against  W.  G.  Dershuck,  the  editor 
and  proprietor  of  a  daily  paper  published  at  Hazleton, 
known  as  the  Plain  Speaker,  for  a  certain  article  issued 
on  August  8, 1910,  reflecting  upon  plaintiffs  behavior  as 
a  mail  carrier.  While  the  article  appeared  in  the  paper 
of  August  8, 1910,  this  action  was  not  brought  until  July 
7, 1911,  eleven  months  afterward,  and  it  now  appears  for 
the  first  time  so  far  as  we  know  upon  the  trial  list  of  the 
court,  almost  seven  years  since  the  paper  was  published. 

[It  is  rather  a  tame  affair  on  the  whole  for  a  libel  suit, 
which  we  expect  to  be  a  belligerent  performance. 

Both  the  lawyers  and  the  parties  have  behaved 
throughout  with  exemplary  gentleness  and  gentility,  and 
the  hair  has  not  been  flying  nor  the  blood  flowing  at  all  in 
connection  with  the  proceedings,  being  tried  in  a  very 
genteel  and  expeditious  manner,  starting  yesterday  after- 
noon I  think,  and  being  now  near  its  conclusion.]    (1) 

It  would  seem  that  on  August  6, 1910,  there  was  a  meet- 
ing of  the  school  board  of  Poster  Township  and  at  that 
meeting  a  petition  was  presented  by  certain  citizens  com- 
plaining of  a  certain  school  teacher,  for  sundry  causes, 
and  among  other  causes  of  complaint  was  that  she 
wrote  too  many  letters,  which,  I  am  free  to  say,  might  be 
considered  a  weakness  of  a  school  teacher,  and  this  com- 
plaint led  to  discussion. 

Plaintiff  was  present  and  also  George  McGee,  the  re- 
porter of  this  newspaper,  was  present  with  a  number  of 
others — fifteen  or  sixteen  altogether  at  the  gathering. 
On  August  8th,  two  days  afterward,  1910,  in  the  Plain 
Speaker  appeared  the  following:  "At  this  juncture," — 
now  of  course  there  is  nothing  to  show  what  the  juncture 
was,  they  just  start  out  with  that — "At  this  juncture^ — 
but  referring  no  doubt,  in  the  light  of  the  evidence  ad- 


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566  WHAREN,  Appellant,  v.  DBRSHUCK. 

Charge  of  Court  below.  [264  Pa. 

duced  here  to  the  complaint  about  the  teacher  and  to  the 
discussion  which  ensued — "At  this  juncture  Warren, 
( spelling  the  name  W-a-r-r-e-n,  meaning  thereby  the  plain- 
tiff), the  mail  carrier,  volunteered  the  information  that 
the  box  in  the  vicinity  of  the  Oley  Valley  school  was  al- 
ways loaded  down  with  mail  sent  out  by  the  teacher. 
This  outburst  of  department  information  amazed  the 
members  of  the  board.  They  felt  that  Warren,  a  sworn 
government  employee  had  committed  a  serious  offense 
against  the  regulations  of  the  Post  Office  Department,  by 
blabbing  out  information  that  his  oath  and  the  law  en- 
joins him  to  withhold.  That  Warren,  (still  spelled 
W-a-r-r-e-n,  accompanied  with  the  innuendo,  meaning 
thereby  the  plaintiff) ,  may  be  compelled  to  answer  to  the 
department  for  his  part  in  the  drama,  was  the  opinion 
expressed  by  a  number  of  people  present  at  the  meeting, 
who  felt  that  the  whole  delegation  was  animated  by  some 
ulterior  motives  and  unduly  biased  against  the  teacher." 

The  person  directly  responsible  for  the  article  was  Mc- 
Qee,  the  reporter.  The  defendant  personally  was  not  con- 
nected with  it  at  all,  in  fact  he  was  away  from  home  on  a 
visit  south.  He  had  no  further  connection  with  the  publi- 
cation of  the  article  at  all,  but  nevertheless  he  would  be 
responsible,  in  law,  for  whatever  appeared  in  that  news- 
paper, either  when  absent  or  when  present,  if  he  was  edi- 
tor or  publisher. 

Now  the  disposition  of  this  action  by  you,  and  our  sub- 
mission of  it  to  you,  is  covered  by  an  act  of  assembly, 
which  provides,  that  there  shall  be  no  recovery  in  civil 
action  of  this  character  on  account  of  the  libel  or  alleged 
libel  unless  it  was  malicious  or  negligent ;  but  if  the  jury 
find  it  to  be  malicious  or  negligent  they  may  allow  such 
damages  as  they  deem  proper.  That  is  the  act  of  assem- 
bly which  is  the  foundation  of  the  case.  Now  you  must 
find — in  order  to  find  a  verdict  in  favor  of  this  plaintiff 
and  against  the  defendant,  it  must  be  found  first  that  the 
defendant,  Mr.  Dershuck,  was  the  editor  and  publisher  of 
this  newspaper,  Plain  Speaker,  and  on  that  there  can  be 


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WHAREN,  Appellant,  v.  DERSHUCK.  567 

1919.]  Charge  of  Court  below, 

no  doubt.  It  is  not  denied.  It  is  virtually  admitted ;  not 
expressly  admitted.  Should  you  find  as  the  initial  fact 
of  the  case,  namely,  that  the  defendant  was  editor  and 
publisher  of  this  paper,  and  therefore  responsible  for  any 
article  which  appeared  in  the  same  and  was  uttered,  then 
you  must  find  in  the  second  place  that  this  article  was 
published  of  and  concerning  the  plaintiff,  Geo.  W. 
Wharen. 

He  would  not  be  entitled  to  recover  anything  unless  the 
libel  was  about  him  and  so  understood. 

Now  you  have  observed  in  my  reading  of  the  article 
that  it  refers  to  the  individual  as  Washington  A.  Warren 
— spelling  the  name  W-a-r-r-e-n  and  not  W-h-a-r-e-n — and 
the  name  Warren  is  repeated  several  other  times  in  con- 
nection with  the  article. 

The  true  name  of  the  plaintiff  is  George  Washington 
Wharen.  It  is  pronounced,  would  seem  to  be  pronounced 
Warren. 

Now  we  come  to  some  most  vital  and  not  so  easily  de- 
termined ingredients  of  plaintiff's  case,  for  you  must  find 
in  the  fifth  place  that  the  article  was  malicious,  published 
with  malice  by  McGee. 

Of  course  so  far  as  Mr.  Dershuck  is  concerned,  there  is 
not  the  slightest  proof  of  actual  malice  at  all.  It  is  only 
legally  imputed,  so  far  as  he  is  concerned  from  the  acts 
of  McGee,  but  he  is  responsible  for  McGeete  acts.  [Now 
malice  we  all  know  to  be  an  evil  mind,  with  intention  to 
do  injury  to  somebody,  without  any  justification  or  ex- 
cuse, and  the  law  recognizes  two  kinds  of  malice,  [one  of] 
which  is  actual  malice — that  is  where  it  really  sets  out  to 
hurt  another,  to  injure  him,  to  do  him  an  injury  as  if  Mc- 
Gee were  the  personal  enemy  or  was  at  that  time  the  per- 
sonal enemy  of  this  plaintiff  and  in  order  to  injure  him 
deliberately  made  the  publication  in  pursuance  of  a 
threat  or  anything  of  the  kind,  that  would  be  actual 
malice,  express  malice. 


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568  WHAREN,  Appellant,  v.  DEBSHUCK. 

Charge  of  Court  below.  [264  Pa. 

Then  the  law  recognizes  another  kind  of  malice,  namely 
implied  malice,  not  express,  but  implied  from  certain 
circumstances.    I  will  draw  them  to  your  attention. 

Generally  speaking  there  are  two  kinds  of  malice, 
malice  in  fact  and  malice  in  law,  either  of  them  would 
sustain  an  action  for  libel. 

Now  did  McOee  have  actual  malice?  You  may  ask 
yourselves  the  question  first.  As  I  say  there  is  no  proof 
of  any  illwill  or  intention  on  his  part,  didn't  even  know 
the  plaintiff. 

He  attended  that  meeting,  as  he  had  a  right  to  do, 
public  meeting  of  the  school  board,  for  the  purpose  of  re- 
cording the  public  proceedings  there,  as  he  had  a  right  to 
do,  and  it  does  not  seem  to  the  court  as  if  you  could  find 
from  any  of  the  circumstances  actual  or  express  malice. 

Nevertheless  if  McGee  knew  the  article  to  be  false — 
and  here  is  one  of  the  vital  questions  of  fact  in  the  case 
for  you  to  answer — if  he  knew  it  to  be  false  when  he  made 
the  statement,  that  would  make  it  malice  in  law.  That 
would  be  implied  malice.  In  the  absence  of  any  proof 
to  show  express  malice  or  actual  malice  you  as  jurors 
would  not  only  have  the  right,  but  it  would  be  your  duty 
to  infer  malice  if  McGee  knew  the  article  to  be  false.  Now 
did  he  know  it  to  be  false?  It  is  for  you  to  say.]  (2) 
The  case  has  been  argued  to  you  most  ably  by  counsel  in 
the  case.  We  leave  that  question  to  you  without  any 
comment  or  discussion.  [We  simply  say  if  you  find  he 
knew  it  to  be  false,  then  it  was  a  malicious  publication 
and  this  requirement  of  the  plaintiff's  case  would  be  met ; 
but  if  he  didn't  know  it  to  be  false,  the  implication  of 
malice  could  not  be  drawn  from  the  article  itself,  as  in 
ordinary  cases  of  libel,  because  in  my  judgment — find  we 
say  it  to  you  as  a  matter  of  law — if  it  was  based  on  rea- 
sonable and  probable  cause,  if  the  article  was  published, 
if  the  statement  incorporated  was  made  upon  reasonable 
and  probable  cause,  it  was  a  privileged  communica- 
tion.]   (3) 


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WHAREN,  Appellant,  v.  DEESHUCK.  569 

1919.]  Charge  of  Court  below. 

Now  that  is  a  legal  proposition  entirely  for  the  court 
A  communication  is  privileged  when  made  upon  a  proper 
occasion,  from  a  proper  motive,  in  a  proper  manner  and 
based  upon  reasonable  and  probable  cause.  And  when 
so  made  in  good  faith,  the  law  does  not  imply  malice  as 
in  the  ordinary  case  of  libel  from  the  mere  proof  of  what 
is  said  about  the  man,  and  actual  malice  must  be  proved. 
Now  I  say  concerning  this  article  that  the  occasion  was 
proper.  Here  was  a  public  meeting  of  the  school  board, 
open  to  the  public,  rightfully  open  to  the  public  and  mat- 
ters of  public  interest  being  discussed,  behavior  of  a 
teacher,  and  we  say  without  any  discussion  or  debate  on 
the  proposition  that  it  was  a  proper  occasion. 

[We  say  to  you  further,  that  so  far  as  you  can  observe, 
either  from  the  surrounding  circumstances  or  from  the 
article  itself,  the  motive  and  the  manner  were  proper,  and 
therefore  all  the  requirements  of  a  privileged  communi- 
cation would  be  met  if  it  was  not  known  to  be  false 
(which  of  course  would  destroy  the  privilege  as  we  have 
already  charged  you),  or  if  though  untrue  it  was  made 
upon  reasonable  or  probable  cause.]  (4)  So  if  you  do 
not  find  that  McGee  knew  it  to  be  false,  you  must  find 
want  of  reasonable  or  probable  cause,  that  is  negligence, 
in  order  to  sustain  a  recovery  in  an  action  by  the  plaintiff, 
and  that  brings  us  to  the  next  ingredient  or  requirement, 
negligence.  It  must  be  found  to  be  either  malicious  in 
the  light  of  the  instructions  which  I  have  just  given  you 
on  that  subject,  or  negligent  in  the  light  of  the  instruction 
which  I  now  give  you. 

[In  connection  with  the  subject  of  malice  I  may  refer 
here  to  the  circumstance  that  as  soon  as  the  matter  or 
within  a  reasonable  time,  as  it  seems  to  the  court,  after 
the  matter  was  brought  to  the  attention  of  the  newspaper, 
of  the  reporter  and  of  its  editor,  there  was  not  only  a  let- 
ter on  the  9th  of  September  acknowledging  the  mistake 
and  offering  an  explanation  of  it,  but  there  was  also  on 
the  29t\of  September  in  the  paper  itself,  published  a  re- 
traction, making  full  amends  as  far  as  that  goes;  of 


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570  WHABBN,  Appellant,  v.  DERSHUCK. 

Charge  of  Court  below.  [264  Pa. 

course  not  destroying  the  liability ;  if  there  is  a  liability, 
but  nevertheless,  in  the  judgment  of  the  court,  going  as 
far  as  could  be  reasonably  expected  in  a  way  of  retraction 
and  in  the  way  of  restoring  the  plaintiff  to  the  public 
esteem,  if  he  had  lost  that  esteem.]     (5) 

Now  from  all  the  testimony,  gentlemen  of  the  jury,  I 
think  you  can  clearly  conclude,  first,  that  there  was  a 
complaint  made  there  of  this  teacher  for  among  other 
things,  excessive  writing  of  letters  and  use  of  the  mail 
box. 

There  can't  be  any  question  about  that  in  my  mind. 

[Second,  that  there  was  a  reference  to  the  mail  carrier, 
whoever  he  might  be,  as  authority  for  the  statement 

Third,  that  this  mail  carrier,  the  plaintiff,  Geo.  W. 
Wharen,  was  present  and  did  not  repudiate  the  state- 
ment]   (6) 

[Fourth,  this  is  not  so  clear,  and  is  for  you  to  say,  and 
I  am  putting  it  to  you  with  a  perhaps — perhaps  that  in- 
formation was  given  by  somebody  present  and  the  im- 
pression was  produced  in  good  faith  in  the  mind  of  Mc- 
Oee  that  this  plaintiff  made  the  statement]    (7) 

Now  I  put  it  with  a  perhaps,  because  it  is  not  clear  as 
the  others. 

It  is  for  you  to  determine  f rom  the  weight  of  the  credi- 
ble testimony  as  you  believe  it,  but  you  may  find  from  the 
testimony  if  you  so  conclude. 

[Then  fifth  we  have  the  testimony  or  derivable  there- 
from the  consideration  that  while  the  plaintiff  himself 
did  not  make  the  statement  imputed  to  him,  others  made 
it  about  him,  about  the  mail  carrier,  possibly  referring  to 
another  mail  carrier,  but  possibly  referring  to  him,  and 
perhaps  easily  applicable  to  him,  and  the  newspaper 
would  have  a  perfect  right  to  publish  as  part  of  the  pro- 
ceedings all  of  those  statements  that  were  actually  made. 
There  is  no  doubt  about  that,  and  these  statements  pub- 
lished in  the  paper  would  have  hurt  the  plaintiff  just  as 


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WHABEN,  Appellant,  v.  DERSHUCK.  571 

1919.]  Charge  of  Court  below, 

the  direct  imputation  to  him,  that  he  made  the  state- 
ments. 

At  least  so  it  appears  to  the  court.  It  is  for  you  to  say, 
leaving  that  consideration  and  its  bearings  upon  the  mal- 
ice of  the  controversy  entirely  to  you.  Others  making 
the  statement  about  him  and  the  statement  actually  made 
by  others  about  him,  this  newspaper  would  have  had  the 
right  to  print.  Now  would  not  that  have  been  just  as 
damaging  as  the  statement?   We  leave  it  to  you.]     (8) 

[Now  no  suit  as  I  have  already  mentioned,  was  brought 
for  this  libel  for  eleven  months.  Of  course  the  first  in- 
stinct of  a  man  who  is  really  damaged  by  a  libelous  pub- 
lication is  to  go  to  law  at  once.  He  does  not  waste  time 
about  it.    This  suit  was  not  brought  for  eleven  months. 

Then  it  was  not  brought  on  to  trial,  as  I  already  sug- 
gested, for  seven  years,  1917,  publication  in  1910,  almost 
six  years  after  suit  was  brought,  almost  seven  years  after 
the  article  was  published.  ]    ( 9 ) 

[Then  we  say  to  you,  as  we  Jyrve  already  said,  we 
state  again  in  this  connection  xm  #te  matter  of  damages, 
that  the  letter  of  September.  Dtfr  and  the  newspaper  re- 
traction of  September^fth  was  a  sufficient  and  reason- 
able retraction  and  vindication  so  far  as  it  went.  ]    ( 10 ) 

Of  course  it  does  not  necessarily  preclude  recovery 
here  if  the  requirements  are  met,  as  we  have  outlined 
them  to  you,  in  all  instances. 

[Nevertheless  it  is  proper  for  you  to  consider  that  there 
was  a  retraction  and  that  the  behavior  of  both  the  report- 
er and  the  editor — subsequent  behavior  independent  of 
the  article  itself — is  entirely  free  from  any  exhibition  of 
actual  malice,  on  the  contrary,  marked  by  an  evident  de- 
sire to  make  amends,  accompanied  by  an  explanation  the 
reasonableness  of  which  is  for  you. 

The  plaintiff  still  holds  the  position  as  mail  carrier, 
with  increased  compensation.  There  has  been  no  loss  of 
public  or  private  esteem  under  the  evidence  here,  he  is 
just  as  well  regarded  by  the  public  as  he  ever  was.    In 


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572  WHAREN,  Appellant,  v.  DERSHUCK. 

Charge  of  Court  below.  [264  Pa. 

other  words,  to  sum  up,  there  is  no  proof  in  this  case  of 
actual  damage,  actual  damages  in  dollars  and  cents.]  ( 11 ) 

[The  third  request  we  refuse  without  reading.  It 
was:  "If  you  find  that  the  defendant  was  the  owner 
and  publisher  of  the  Plain  Speaker,  that  the  article  com- 
plained of  was  published  in  the  Plain  Speaker,  that  it  re- 
ferred to  the  plaintiff,  that  it  is  false,  your  verdict  should 
be  for  the  plaintiff."]    ( 12 ) 

The  fourth  request,  "If  you  find  that  the  defendant  was 
the  owner  of  the  Plain  Speaker,  that  George  McGee  was 
the  duly  authorized  reporter  of  the  Plain  Speaker,  that 
he  reported  the  article  complained  of  in  the  due  course 
of  his  employment,  then  the  defendant  is  responsible  to 
the  plaintiff  for  the  actions  of  George  McGee  in  so  do- 
ing." We  affirm  that  request.  It  is  only  a  statement  of 
the  law  of  principal  and  agent.  Mr.  Dershuck  as  editor 
and  publisher  of  the  Plain  Speaker  would  be  responsible 
for  what  his  reporter  did  in  connection  therewith. 

[The  sixth  we  refuse  without  reading.  It  was: 
"If  you  find  the  defendant  published  the  article 
complained  of,  without  any  prior  investigation,  that  it  is 
false,  then  your  verdict  should  be  for  the  plain- 
tiff."]   (13) 

The  same  is  true  of  the  12th,  13th,  14th,  15th  and  16th 
requests,  all  of  which  we  refuse  without  reading  [which 
are  as  follows] : 

[Twelfth.  "If  you  find  that  the  defendant  did  not 
make  any  retraction  in  his  paper,  when  the  falsity  of  the 
article  was  called  to  his  attention,  but  waited  until 
threatened  with  legal  proceedings ;  and  also  find  for  the 
plaintiff,  then  such  action  may  be  considered  in  connec- 
tion with  all  other  evidence  in  the  case,  in  determining 
whether  there  was  actual  malice  or  illwill  toward  the 
plaintiff."]     (14) 

[Thirteenth.  "If  the  jury  find  for  the  plaintiff,  and 
find  that  George  McGee  was  the  duly  authorized  agent  of 
the  defendant  in  procuring  news  and  in  sending  the  arti- 
cle complained  of,  and  that  George  McGee  had  no  ground 


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WHABEN,  Appellant,  v.  DERSHUCK.  573 

1919.]  Charge  of  Court  below. 

to  believe  the  truth  of  the  article,  but  was  actuated  by 
malice  and  illwill  toward  the  plaintiff,  then  the  defend- 
ant is  responsible  for  such  malice  of  his  agent,  and  you 
may  award  exemplary  or  punitive  damages."]     (15) 

[Fourteenth.  "In  determining  whether  the  reporter, 
George  McGee,  was  actuated  by  actual  malice  or  illwill, 
you  may  consider  all  the  testimony  bearing  on  the  matter, 
the  size  of  the  room,  the  number  of  people  present,  the 
similarity  of  the  plaintiff  and  Mr.  Schultz,  and  the  fact 
that  the  plaintiff  later  addressed  the  meeting  and  that 
Mr.  McGee  correctly  identified  him  at  that  time."]    ( 16 ) 

[Fifteenth.  "You  may  also  consider  as  to  whether 
George  McGee  was  actuated  by  malice  or  illwill,  the 
character  of  the  corroboration  of  the  statement  of  Mr. 
Fairchilds,  as  to  whether  it  showed  by  its  terms  that  it 
was  made  by  the  mail  carrier  or  by  some  one  else." ]   ( 17 ) 

[Sixteenth.  "Your  verdict  on  the  whole  evidence 
should  be  for  the  plaintiff."]     (18) 

The  defendant's  requests  are  as  follows : 

1.  "In  order  to  justify  a  recovery  by  the  plaintiff  in 
this  case  the  jury  must  be  satisfied  by  a  preponderance  of 
the  credible  evidence  that  defendant  published  the  al- 
leged libelous  article  either  maliciously  or  negligently." 
That  is  true.    We  have  so  instructed  you. 

[2.  "If  the  jury  believe  that  George  McGee,  reporter  of 
the  Plain  Speaker,  in  good  faith  made  inquiry  from  a  re- 
sponsible and  reputable  person  as  to  the  identity  of  the 
person  who  informed  the  school  board  of  the  facts  con- 
tained in  the  alleged  libel,  and  understood  his  informer 
to  say  such  person  was  in  fact  Mr.  Wharen,  the  plaintiff, 
then  the  jury  may  accept  such  circumstance  to  rebut  any 
inference  of  malice  or  negligence." 

Well  we  affirm  that.  Of  course  the  facts  are  for  you 
to  find.  All  depends  on  what  occurred  at  the  meeting; 
what  was  said  and  whether  what  was  said,  actually  said, 
justified  McGee  in  concluding  that  the  plaintiff  made  the 
statement,  and  acting  under  that  impression  that  he  pub- 
lished the  article.]     (19) 


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574  WHAREN,  Appellant,  v.  DERSHUCK. 

Charge  of  Court  below — Opinion  of  the  Court.  [264  Pa* 

[3.  "The  jury  is  instructed  as  a  matter  of  law  that 
there  is  no  proof  of  express  malice  in  this  case."  That  re- 
quest is  affirmed.]     (20) 

Verdict  and  judgment  for  defendant. 

Plaintiff  appealed. 

Errors  assigned  were,  among  others,  (1-11)  charge  to 
jury;  (12-20)  answers  to  points. 

Chas.  F.  Wharen,  for  appellant. 

John  H.  Bigelow,  with  him  R.  J.  O'Donnell,  for  ap- 
pellee. 

Per  Curiam,  May  5, 1919  : 

In  this  action  for  libel  the  verdict  was  for  the  defend- 
ant, followed  by  judgment  thereon.  After  due  consider- 
ation of  all  the  assignments  of  error  the  majority  of  the 
court  are  of  opinion  that  they  disclose  no  reversible  error, 
in  view  of  all  the  testimony  in  the  case,  and  the  judgment 
is,  therefore,  affirmed. 


Watkins  v.  Benscoter,  Appellant 

Principal  and  agent — Collection  of  mortgage — Fraudulent  repre- 
sentations— Embezzlement — Securing  mortgage  from  third  person 
— Cancellation — Fraud. 

Where  an  agent  collected  an  outstanding  mortgage  belonging  to 
his  principal  and  embezzled  the  money  and  afterwards  secured  pos- 
session of  the  bond  and  mortgage,  together  with  a  power  of  attorney 
to  satisfy  the  same  upon  representing  to  his  principal  that  he  would 
loan  the  money  to  a  third  person,  and  afterwards  by  fraudulent 
representations  procured  from  such  third  person  a  bond  and  mort- 
gage in  favor  of  his  principal  to  conceal  the  embezzlement,  the 
principal  cannot  hold  the  latter  mortgage  as  a  valid  obligation,  but 
the  loss  occasioned  by  the  embezzlement  must  fall  upon  the  prin- 
cipal 


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WATKINS  v.  BENSCOTER,  Appellant.  575 

1919.]  Statement  of  Facts — Chancellor's  Findings. 

Argued  April  15, 1919.  Appeal,  No.  146,  Jan.  T.,  1919, 
by  defendant,  from  decree  of  C.  P.  Luzerne  Co.,  Oct.  T., 
1917,  No.  6,  in  equity,  restraining  collection  of  a  bond 
and  mortgage  and  cancelling  the  same  in  the  case  of  Ed- 
ward G.  Watkins  v.  Ella  Benscoter.  Before  Brown, 
G.  J.,  Moschziskeb,  Frazbr,  Simpson  and  Kbphabt, 
JJ.    Affirmed. 

Bill  in  equity  for  an  injunction  to  restrain  the  collec- 
tion of  a  bond  and  mortgage  and  for  cancellation  and  sur- 
render of  the  same.    Before  Woodward,  J. 

The  chancellor  found  the  facts  as  follows : 

The  essential  facts  in  the  case,  as  set  forth  in  the  plead- 
ings, about  which  there  is  no  dispute,  are  as  follows :  In 
1910  Ella  Benscoter,  of  Muhlenburg,  Luzerne  County, 
loaned  f  1,500  to  F.  J.  Niemeyer  and  wife,  on  a  bond  and 
mortgage  executed  by  the  Niemeyers  and  delivered  to  her. 

In  1913  Mrs.  Niemeyer,  her  husband  having  died,  de- 
sired to  borrow  f  2,000  and  arranged  with  P.  W.  Larned 
&  Son  to  procure  a  loan,  which  the  Larneds  did  procure 
on  a  mortgage,  and  appropriated  f  1,500  of  the  amount  to 
pay  off  the  mortgage  which  the  Niemeyers  had  formerly 
given  to  Ella  Benscoter.  The  money  was  received  by  the 
Larneds  on  September  5, 1913,  but  the  fact  that  the  mort- 
gage had  been  paid  was  not  communicated  to  Ella  Bens- 
coter until  November  19, 1913,  when  Lewis  Larned  called 
on  Miss  Benscoter  with  a  power  of  attorney  to  satisfy  the 
Niemeyer  mortgage.  He  then  informed  Miss  Benscoter 
for  the  first  time  that  the  Niemeyer  mortgage  had  been 
paid,  but  assured  her  that  they  could  place  her  money  on 
another  mortgage  which  would  be  equally  good,  and  upon 
which  the  interest  would  be  promptly  paid.  On  this  as- 
surance Miss  Benscoter  signed  the  power  of  attorney 
to  satisfy  the  Niemeyer  mortgage,  and  delivered  the  mort- 
gage itself,  with  the  bond  and  insurance  policies,  to  Lewis 
Larned.  The  power  of  attorney  was  not  recorded  and  the 
Niemeyer  mortgage  satisfied  until  February  7, 1914. 


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576  WATKINS  v.  BENSCOTER,  Appellant 

Chancellor's  Findings.  [264  Pa. 

The  plaintiff,  E.  G.  Watkins,  had  given  a  mortgage  to 
Caroline  Kraft,  of  Philadelphia,  in  1910,  on  his  property 
on  Laurel  street  in  Parsons,  Luzerne  County,  for  f 2,000, 
to  secure  a  loan  of  like  amount,  which  he  had  secured 
through  the  Larneds.  Watkins  had  paid  |500  on  this 
loan,  so  that  in  December,  1913,  the  balance  due  on  his 
mortgage  was  f  1,500. 

About  the  middle  of  December,  1913,  Frank  Lamed 
told  Watkins,  the  plaintiff,  that  the  Kraft  estate,  Caro- 
line Kraft  having  died  and  the  mortgage  being  in  the 
hands  of  her  executor,  wanted  the  mortgage  paid ;  that 
he,  Lamed,  had  f  1,500  in  hand  belonging  to  Miss  Bens* 
coter,  which  he  would  apply  in  payment  of  the  Kraft  mort- 
gage, and  had  Watkins  execute  a  new  bond  and  mortgage 
for  f  1,500  to  Miss  Benscoter  to  secure  the  new  loan  from 
her,  with  which  to  pay  off  the  Kraft  mortgage.  This 
mortgage  from  Watkins  to  Benscoter,  the  one  in  question 
in  this  case,  was  dated  and  acknowledged  December  18 
and  recorded  December  19,  1913.  About  a  month  later 
Watkins  called  at  the  Laraed's  office  and  was  told  by 
Prank  Lamed  that  the  Kraft  estate  had  refused  to  take 
the  money  in  satisfaction  of  Watkins's  mortgage,  but  had 
assigned  the  mortgage,  which  was  not  yet  due,  to  a  Dr. 
Petery,  whereupon  Watkins  said  that  he  had  no  use  for 
Miss  Benscoter^  money,  and  Frank  Lamed  replied  that 
he  had  destroyed  the  bond  and  mortgage  given  by  Wat- 
kins to  Miss  Benscoter,  and  returned  the  money. 

Watkins  continued  to  make  his  payments  on  the  Kraft 
mortgage  to  the  assignee,  Dr.  Petery,  but  Lamed,  instead 
of  returning  the  $  1,500  to  Miss  Benscoter,  kept  the  same 
in  his  own  bank  account,  mingled  with  his  own  funds, 
and  paid  her  the  interest  semiannually,  as  it  fell  due, 
without  informing  her  that  the  money  had  not  been  paid 
to  Watkins  or  applied  on  his  debt,  but  left  her  under  the 
impression  that  the  money  had  been  so  paid  or  applied, 
and  that  her  mortgage  from  Watkins  was  still  in  force; 
nor  could  she  have  ascertained  otherwise  by  an  exami- 


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WATKINS  v.  BENSCOTER,  Appellant.  577 

1919.]  Chancellor's  Findings. 

nation  of  the  record,  because  the  Watkins  mortgage  to 
her  was  still  on  the  record,  and  unsatisfied. 

Not  until  February,  1917,  when  the  Larneds  failed 
and  went  into  bankruptcy,  and  Miss  Benscoter  ceased  to 
receive  the  payments  of  interest  on  her  Watkins  mort- 
gage, which  had  in  the  meantime  been  made  by  the  Larn- 
eds to  deceive  her,  were  the  true  facts  disclosed.  She 
then  placed  the  matter  in  the  hands  of  her  attorney,  who 
made  demand  on  the  plaintiff,  Mr.  Watkins,  for  an  install- 
ment of  interest  then  overdue,  whereupon  the  plaintiff 
brought  this  bill  in  equity  to  restrain  the  defendant  from 
collecting  on  the  mortgage,  and  to  have  the  mortgage  satis- 
fied, and  the  accompanying  bond  canceled. 

The  conclusions  of  law  announced  by  the  court  at  the 
request  of  the  plaintiff  were  as  follows : 

1.  By  executing  the  power  of  attorney  to  Frank  W. 
Lamed  to  satisfy  the  Niemeyer  mortgage,  on  19th  No- 
vember, 1913,  and  delivering  same  to  Lewis  M.  Lamed, 
together  with  the  Niemeyer  bond,  mortgage,  and  insur- 
ance policy,  Ella  Benscoter  placed  in  the  hands  of  Frank 
W.  Lamed  &  Son  the  means  and  authority,  to  obtain  the 
moneys  due  Ella  Benscoter  from  the  Niemeyers,  and  by 
virtue  thereof  the  said  Frank  W.  Lamed  &  Son  having 
obtained  such  moneys  and  embezzled  the  same,  the  loss 
occasioned  thereby  must  fall  on  said  Ella  Benscoter. 

That  is  affirmed. 

2.  The  bond  and  mortgage  of  Edward  G.  Watkins,  of 
18th  December,  1913,  having  been  fraudulently  procured 
by  Frank  W.  Lamed,  and  having  been  delivered  to  said 
Ella  Benscoter  by  said  Lamed  without  value,  and  to  cover 
up  and  conceal  his  (Larned's)  embezzlement,  cannot  be 
held  by  Ella  Benscoter  as  a  valid  obligation  against 
Watkins. 

That  is  affirmed. 

3.  The  plaintiff  is  entitled  to  the  relief  prayed  for  i» 
the  bill. 

That  is  affirmed. 

lVol.  cclxiv— 37 

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578  WATKINS  v.  BENSCOTBR,  Appellant 

Assignment  of  Errors — Opinion  of  the  Court.    [264  Pa. 
A  decree  was  entered  accordingly,  and  defendant  ap- 
pealed. 

Errors  assigned  were  the  findings  of  facts  and  conclu- 
sions of  law  and  the  decree  of  the  court. 

J.  Q.  Greveling,  with  him  D.  O.  Coughlvn,  for  appellant, 
cited :  Lerch  v.  Bard,  162  Pa.  307;  Wolfgang  v.  Shirley, 
239  Pa.  408. 

Cfranville  J.  Clark,  for  appellee,  not  heard. 

Per  Curiam,  May  5, 1919 : 

The  facts  in  this  case  are  not  in  dispute,  and  the  decree 
is  affirmed  on  the  first  and  second  correct  legal  conclu- 
sions of  the  learned  chancellor  below,  announced  at  the 
request  of  the  plaintiff. 

Appeal  dismissed  at  appellant's  costs. 


Tkatch  v.  Knights  and  Ladies  of  Security, 
Appellant. 

Evidence— Burden  of  proof — Action  on  death  benefit  certificate — 
Pleading — Statement  of  claim. 

1.  In  an  action  upon  a  death  benefit  certificate  issued  by  a  bene- 
ficial society,  the  allegation  in  the  statement  of  claim  that  all  con- 
ditions of  the  contract  had  been  fulfilled  by  the  assured,  even  when 
denied  by  the  answer,  does  not  impose  upon  the  plaintiff  the  burden 
of  proving  that  the  assured  had  paid  all  dues  and  assessments 
chargeable  against  him  up  to  the  time  of  his  death. 

Evidence — Laws  of  beneficial  society — Proof — Expert  testimony. 

2.  The  constitution  and  by-laws  of  a  beneficial  society  cannot  be 
proved  and  identified  by  expert  testimony  of  a  witness  because  of 
his  familiarity  with  them  or  with  the  practice  of  the  organization. 

Argued  April  15, 1919.  Appeal,  No.  184,  Jan.  T.,  1919, 
by  defendant,  from  order  of  C.  P.  Luzerne  Co.,  Oct.  T., 


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TKATCH  v.  KNIGHTS  &  L.  OP  SECURITY,  Appel.  579 
1919.]  Statement  of  Facts — Opinion  of  Court  below. 
1915,  No.  284,  overruling  motion  for  a  new  trial  and  for 
judgment  n.  o.  v.  in  the  case  of  Anna  Tkatch  v. 
Knights  and  Ladies  of  Security.  Before  Brown,  C.  J., 
Moschziskbb,  Fbazbb,  Simpson  and  Kbphaet,  JJ.  Af- 
firmed. 

Action  in  assumpsit  to  recover  death  benefits  upon  two 
certificates  issued  by  a  beneficial  society.  Before 
Strauss,  J. 

The  court  gave  binding  instructions  for  the  plaintiff. 

Verdict  for  plaintiff  for  $3,417  and  judgment  entered 
thereon. 

The  trial  court  denied  the  motion  for  a  new  trial  and 
for  judgment  n.  o.  v.  in  the  following  opinion  by  Strauss, 
J.,  filed  August  13,  1918: 

In  1910  the  defendant  issued  a  certificate  in  the  nature 
of  a  life  insurance  policy,  and  in  1912  another,  to  Andrew 
Tkatch,  the  first  for  two  thousand  dollars  and  the  second 
for  one  thousand  dollars,  payable  at  the  time  of  his  death 
to  Annie  Tkatch,  his  wife,  the  plaintiff,  'lie  having  com- 
plied with  all  the  provisions  of  the  constitution  and  Jaws 
of  the  order  now  in  force,  or  that  may  hereafter  be  en- 
acted and  being  at  the  time  of  his  death  a  member  in  good 
standing."    He  died  on  the  29th  of  December,  1914. 

The  defendant  having  refused  payment  on  these  cer- 
tificates on  the  ground  that  Tkatch  had  become  a  vender 
of  intoxicating  liquors  in  violation  of  the  laws  of  the 
organization,  this  suit  was  brought. 

At  the  trial  the  plaintiff  put  in  evidence  the  certificates, 
the  death,  service  of  proof  of  death,  and  rested. 

A  motion  for  compulsory  nonsuit  was  refused.  Then 
to  make  out  its  defense  the  defendant  proposed  from  its 
constitution  and  by-laws  to  prove:  (a)  The  defendant  is 
a  beneficial  society  and  not  a  life  insurance  company; 
(b)  the  deceased  was  forbidden  to  engage  in  the  manu- 
facture or  sale  of  any  intoxicating  liquors  to  be  used  as 
a  beverage;  and  to  follow  this  by  proof  (c)  that  the  de- 
ceased had  in  violation  of  the  constitution  and  by-laws 


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580  TKATCH  v.  KNIGHTS  &  L.  OF  SECURITY,  Appcl. 

Opinion  of  Court  below.  [264  Pa. 

become  a  licensed  retailer  of  intoxicants  after  the  date  of 
the  death  benefit  certificate. 

The  proof  of  the  constitution  and  by-laws  the  defend- 
ant offered  to  make  by  a  witness  who  having  been  one 
of  defendant's  members  during  many  years  and  an  of- 
ficial in  its  subordinate,  state  and  national  lodges,  could 
qualify  as  an  expert  and  would  identify  a  pamphlet  as 
the  officially  printed,  and  commonly  accepted  in  these 
organizations,  constitution  and  by-laws.  This  proposed 
identification  of  the  pamphlet  by  expert  testimony  was 
objected  to  and  excluded.    Thereupon  defendant  rested. 

A  new  trial  or  judgment  in  defendant's  favor  n.  o.  v. 
is  now  sought  for  two  reasons :  (1)  Because  the  plaintiff 
has  failed  to  prove  as  part  of  her  case  that  her  husband 
had  paid  all  dues  and  assessments  chargeable  against  him 
up  to  the  time  of  his  death;  and  (2)  because  the  court 
erred  in  excluding  the  expert  testimony. 

1.  The  allegation  in  the  statement  that  all  conditions 
of  the  contract  had  been  fulfilled  by  the  assured,  even 
when  denied  by  the  answer,  does  not  impose  upon  the 
plaintiff  the  burden  of  proving  that  each  particular  con- 
dition was  complied  with.  When  a  breach  of  any  par- 
ticular condition  is  relied  upon,  the  defendant  has  the 
burden  of  proving  it.  The  certificates  in  the  hands  of 
the  defendant  promising  to  pay  a  specific  sum  to  her  on 
the  death  of  her  husband  created  in  her  favor  a  presump- 
tion that  the  deceased  had  paid  the  dues  essential  to  the 
original  validity  of  the  certificate,  which  presumption 
continues  until  it  has  been  overcome  by  proof  that  valid- 
ity is  lost  through  nonpayment  or  other  violation  of  con- 
ditions: 29  Cyc.  229-237;  Royal  Circle,  etc.,  v.  Achter- 
rath,  204  111.  549 ;  Crumpton  v.  Pittsburgh  Council,  etc., 
1  Pa.  Superior  Ct.  613. 

2.  No  authority  has  been  brought  to  our  attention  for 
the  proposition  that  the  laws  of  a  beneficial  society  may 
be  proved  by  expert  testimony  of  a  witness  because  of  his 
familiarity  with  them  or  with  the  practice  in  the  organi- 


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TKATCH  v.  KNIGHTS  &  L.  OF  SECUBITY,  Appel.  581 
1919.]  Opinion  of  Court  below. 

zation.  If  the  book  were  to  be  admitted  at  all  it  must  be 
upon  the  credibility  of  his  testimony  as  to  the  identity  of 
its  contents  with  the  laws  of  the  organization. 

We  had  before  us  at  the  time  of  trial  Herman  v.  The 
Supreme  Lodge,  66  N.  J.  Laws  77;  48  Atl.  Rep.  1000 
(Supreme  Court  of  New  Jersey)  which  decided: 

"It  is  too  plain  for  argument  that  in  order  to  vary  an 
existing  contract,  strict  proof  of  the  enactment  of  the 
law  claimed  to  have  such  effect  is  requisite.  Proof  by 
members  of  the  order  that  copies  of  what  purported  to  be 
the  laws  extant  had  been  promulgated  could  not  legally 
stand  in  lieu  of  direct  proof  of  such  enactment." 

This  doctrine  is  also  followed  in  Page  v.  Knights  & 
Ladies,  61  S.  W.  1068,  where  such  evidence  had  been  ad- 
mitted after  a  witness  had  testified  that  he  had  before 
him — "the  constitution  and  by-laws  of  the  order  which 
went  into  effect  May  1,  1898,  and  file  it  as  Exhibit  A  to 
my  deposition ;" 

The  court  in  sustaining  an  exception  on  this  ground 
said: 

"It  is  obvious  therefore  that  when  the  witness  made  the 
statement,  he  was  stating  merely  an  inference  or  con- 
clusion of  his  that  the  paper  offered  was  legally  the  con- 
stitution and  by-laws  of  the  order.  But  this  cannot  be 
done.  Supreme  Lodge  v.  La  Malta,  95  Tenn.  166-67;  31 
S.  W.  493;  30  L.  R.  A.  838.  The  court  would  have  to 
have  before  it  legal  evidence  of  the  action  of  the  Su- 
preme Lodge  or  of  its  board  of  directors  in  the  passage  or 
admitted  passage  of  such  constitution  and  by-laws,  and 
from  this  a  conclusion  could  be  drawn  as  to  whether  the 
paper  offered  was  in  truth  the  constitution  and  by-laws 
of  the  order  and  legally  binding  as  such.  But  this  would 
be  a  legal  conclusion  and  one  for  which  the  court  could 
not  rely  upon  the  opinion  of  a  witness  in  the  cause." 

So,  all  of  the  decided  cases  that  have  been  referred  to 
in  the  briefs,  or  that  we  have  by  independent  search  been 
able  to  find,  are  in  line  with  the  ruling  made  at  the  trial 
under  which  this  sort  of  evidence  was  excluded. 


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582  TKATCH  v.  KNIGHTS  &  L.  OP  SECURITY,  AppeL 

Opinion  of  Court  below — Opinion  of  the  Court.  [264  Pa. 
The  case  is  presented  to  us  purely  upon  these  legal 
questions  without  any  appeal  to  discretion.     As  thus 
presented  both  reasons  must  be  dismissed. 

Errors  assigned  were,  among  others,  the  refusal  of  de- 
fendant's motion  for  a  new  trial  and  for  judgment  n.  o.  v. 

John  H.  Dando,  with  him  David  Oppenhdmer,  for  ap- 
pellant.— Proof  of  performance  was  essential  and  under 
the  pleadings  it  was  demanded :  Blair  v.  Supreme  Coun- 
cil, 208  Pa,  262. 

E.  A.  Lynch  and  Chas.  B.  Lendhan,  for  appellee,  not 
heard. 

Per  Cubiam,  May  5, 1919: 

The  judgment  in  this  case  is  affirmed  on  the  opinion 
of  the  learned  court  below  overruling  the  motions  for  a 
new  trial  and  for  judgment  non  obstante  veredicto. 


Sorber  v.  Masters  et  al.,  Appellants. 

Statute  of  frauds — Evidence — Sufficiency — Parol  evidence — Title 
to  real  estate — Contract  by  parent  to  convey  to  children — Consider- 
ation— Maintenance  of  home — Declarations — Exclusive  possession. 

1.  Persons,  claiming  title  to  real  estate  by  virtue  of  an  oral  con- 
tract for  the  transfer  of  real  estate  by  a  parent  to  her  children,  in 
consideration  of  the  maintenance  of  a  common  home  by  the  chil- 
dren for  the  parent's  benefit,  must  establish  their  claim  by  evidence 
that  is  clear,  precise  and  indubitable. 

2.  In  such  a  case  the  witnesses  depended  upon  to  prove  the  con* 
tract  must  have  heard  the  bargain  when  made,  or  must  have  heard 
the  parties  repeat  it  in  each  other's  presence,  inasmuch  as  a  con- 
tract cannot  be  inferred  from  the  declarations  of  one  of  the  parties. 
Exclusive  possession  must  be  shown  to  have  been  assumed  by  the 
sons  to  take  the  case  out  of  the  statute. 


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SORBBR  v.  MASTERS  et  al.,  Appellants.  588 

1919.]  Syllabus— Statement  of  Facts. 

Statute  of  frauds — Evidence  —  Sufficiency  of  writing  —  Several 
papers — Parol  evidence. 

3.  If  written  memoranda,  consisting  of  separate  papers,  are  de- 
pended upon  to  satisfy  the  statute  of  frauds,  when  taken  together 
they  must  accord  in  every  material  particular  with  the  bargain 
averred  inasmuch  as  parol  evidence  is  incompetent  to  explain  de- 
partures. 

4.  Where  in  an  action  of  ejectment  by  a  mother  against  two  sons, 
the  defendants  claim  title  by  virtue  of  an  alleged  agreement,  the 
consideration  of  which  is  to  maintain  a  home  for  their  mother  for 
life,  and  by  which  she  was  to  execute  a  deed  to  the  two  sons  in  com- 
mon for  one  farm,  and  to  devise  by  will,  two  other  farms,  one  to 
each  of  the  sons,  such  papers  do  not  satisfy  the  statute  of  frauds 
where  it  appears  that  the  deed  specified  a  large  money  consider- 
ation, and  the  will  made  no  reference  whatever  to  the  alleged 
agreement. 

Contract — Construction — To  convey  property  —  Consideration — 
Provide  a  home  for  grantor — Personal  performance  by  grantee — 
Termination — Death  of  grantee. 

6.  An  agreement  by  an  aged  parent  to  convey  her  property  to  her 
two  sons  in  consideration  of  their  living  upon  and  managing  the 
property  and  maintaining  a  home  for  her  during  her  life,  must  be 
construed  to  require  a  personal  performance  by  the  sons  and  to  ter- 
minate upon  the  death  of  the  two  sons  during  the  parents'  life. 

Argued  April  15, 1919.  Appeal,  No.  301,  Jan.  T.,  1919, 
by  defendants,  from  judgment  of  C.  P.  Luzerne  Co.,  June 
T.,  1916,  No.  561,  upon  verdict  for  plaintiff  in  an  action 
of  ejectment  in  the  case  of  Christiana  A.  Sorber  v.  Charles 
H.  Masters  and  Lawrence  D.  Masters,  Defendants,  and 
Samuel  Ashley,  Terre-Tenant,  and  Anna  Masters,  wife 
and  devisee  of  Charles  H.  Masters,  deceased,  and  Viola 
Masters,  wife,  in  her  own  right,  and  as  guardian  of  minor 
children  of  Lawrence  D.  Masters,  deceased,  substituted 
as  defendants.  Before  Bbown,  C.  J.,  Moschziskbb,  Fba- 
zbb,  Simpson  and  Kbphabt,  J  J.    Affirmed. 

Ejectment  to  recover  possession  of  three  farms  in 
Union  Township,  Luzerne  County.   Before  Gabman,  J. 

The  plaintiffs  claim  was  based  upon  a  perfect  record 
title. 


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584  SORBER  v.  MASTERS  et  al.,  Appellants. 

Statement  of  Facte— Arguments.  [264  Pa. 

The  defendants  who  were  the  sons  of  the  plaintiff  set 
up  an  oral  contract  whereby  it  was  agreed  that  in  con- 
sideration of  their  managing  and  living  upon  the  farms 
and  maintaining  a  home  for  the  plaintiff,  their  mother, 
she  would  make  a  deed  to  them  jointly  for  one  of  the 
farms  and  by  her  will  devise  a  farm  to  each  son.  The 
sons  died  after  suit  was  brought  and  their  surviving 
wives  were  substituted  as  defendants. 

Verdict  and  judgment  for  plaintiff.  Defendants  ap- 
pealed. 

Errors  assigned  were,  among  others,  rulings  on  evi- 
dence, the  charge  of  the  court  and  refusal  of  a  new  trial. 

Paul  J.  Sherwood,  with  him  J.  Q.  Crevelmg,  for  appel- 
lants.— An  agreement  to  convey  is  superseded  by  a  deed 
executed  pursuant  thereto  to  the  extent  that  the  deed 
works  a  performance  of  the  terms  of  the  agreement: 
Lehman  v.  Paxton,  7  Pa.  Superior  Ct.  259;  Gangloof  v. 
Smaltz,  18  Pa.  Superior  Ct.  460;  Stewart  v.  Trimble,  15 
Pa.  Superior  Ct.  513. 

The  will  and  the  deed  are  sufficient  memoranda  to 
satisfy  the  statute  of  frauds :  Shroyer  v.  Smith,  204  Pa. 
310 ;  Brinker  v.  Brinker,  7  Pa.  53 ;  Smith  v.  Tuit,  127  Pa. 
341. 

Rush  Trescott,  with  him  8.  M.  R.  O'Hara,  for  appellee. 
— When  an  attempt  is  made  to  set  up  a  parol  contract  of 
sale  against  a  parent,  either  by  a  son  or  one  claiming 
under  a  son,  the  evidence  of  the  contract  must  be  direct, 
positive,  express  and  unambiguous:  Wright  v.  Nulton, 
219  Pa.  253;  Ackerman  v.  Fisher,  57  Pa.  457;  Edwards 
v.  Morgan,  100  Pa.  330;  Burgess  v.  Burgess,  109  Pa.  312; 
Derr  v.  Acherman,  182  Pa.  591. 

The  alleged  oral  agreement,  as  set  up  by  the  defend- 
ants in  this  case,  if  made  at  all,  was  a  purely  personal 
contract,  and  terminated  with  the  death  of  the  boys: 
Dickinson  v.  Calafian,  19  Pa.  227;  Billings's  App.,  106 


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SORBER  v.  MASTERS  et  al.,  Appellants.  585 

1919.]  Arguments — Opinion  of  the  Court. 

Pa,  658  j  Blakely  v,  Sousa,  197  Pa.  305;  Bland  v.  Urn- 
stead,  23  Pa.  316. 

Opinion  by  Mb.  Justice  Moschziskhb,  May  5, 1919 : 

Christiana  A.  Sorber,  plaintiff,  sued  in  ejectment  to 
recover  possession  of  three  farms ;  a  verdict  was  rendered 
in  her  favor,  upon  which  judgment  was  subsequently 
entered,  and  defendants  have  appealed. 

Mrs.  Sorber  was  formerly  the  wife  of  McDonald  Mas- 
ters, from  whom  she  procured  a  divorce  in  1900 ;  they  had 
five  children,  two  of  whom,  Charles  H.  Masters  and  Law- 
rence D.  Masters,  were  the  original  defendants  in  this 
suit ;  but  both  died  prior  to  the  trial  and,  this  fact  being 
suggested  of  record,  their  widows  were  duly  substituted 
as  defendants,  in  their  individual  capacities,  and  the 
widow  of  Lawrence  D.  also  as  the  guardian  of  his  chil- 
dren, the  sons  having  devised  their  estates  to  such  widows 
and  children. 

One  of  the  farms  in  question,  known  as  the  "Home- 
stead," where  Mrs.  Sorber  lived  and  reared  her  family, 
had  been  acquired  by  plaintiffs  father  and  conveyed  to 
her  about  half  a  century  ago ;  another,  called  the  "Maple 
Swamp  Tract,"  was  bought  by  plaintiff  in  1900 ;  and  the 
third,  designated  as  the  "Arnold  Farm,"  was  purchased 
by  her  in  1902. 

In  1915,  or  thereabouts,  when  plaintiff  was  seventy 
years  of  age,  a  lack  of  harmony  arose  between  her  and 
the  wife  of  Charles  H.  Masters ;  whereupon  Mrs.  Sorber 
removed  to  the  home  of  a  daughter,  and,  in  June,  1916, 
brought  the  present  action. 

At  trial,  plaintiff  proved  a  perfect  record  title,  in  ac- 
cord with  her  statement  of  claim.  The  answer,  filed  by 
the  original  defendants,  which  their  substitutes  endeav- 
ored to  prove,  averred  that  Charles  H.  and  Lawrence  D. 
Masters  were  the  "real  owners"  of  the  three  farms,  "in 
lawful  possession"  thereof;  that,  after  their  parents' 
divorce,  when  the  two  sons  were  of  full  age,  a  "parol 
contract"  was  entered  into  between  them  and  their  moth- 


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586  SORBER  v.  MASTERS  et  al.,  Appellants. 

Opinion  of  the  Court.  [264  Pa. 

er,  "by  the  terms  of  which  said  plaintiff  was  to  purchase 

the  'Arnold  Farm' and  convey  title  to  the  same  by 

a  proper  deed to  said  defendants,  to  own  in  com- 
mon, and  was  also  to  devise  to  said  defendant,  Lawrence 

D.,  by  will,  the  'Homestead' and  to  said  Charles  H. 

the  'Maple  Swamp  Tract' ,  in  consideration 

whereof  said  defendants  were  to  take  immediate  posses- 
sion of  the  whole  of  said  lands give  up  their  chances 

of  a  livelihood  elsewhere,  live  upon,  farm,  and  manage 
the  same,  and  keep  up,  provide  and  furnish  a  comfortable 
support  and  maintenance  for  plaintiff  during  the  balance 
of  her  life" ;  that,  "in  pursuance  of  said  contract,"  the 
Arnold  Farm  was  duly  acquired,  and  plaintiff  "executed, 
acknowledged  and  delivered"  a  deed  therefor  to  her  two 
sons,  "which  said  deed  was  not  placed  of  record,  by  re- 
quest of  said  plaintiff" ;  that,  "in  pursuance  of  said  con- 
tract," plaintiff  executed  a  will  devising  the  two  other 
pieces  of  land  to  her  sons,  who  entered  into  posses- 
sion, made  valuable  improvements,  etc.,  and  provided  "a 
good  home  and  comfortable  support  for  the  said  plaintiff, 
which  has  always  been  ready  and  open  to  her" ;  that  de- 
fendants "faithfully  and  fully  performed"  their  part  of 
the  contract,  "and  stand  ready  to  continue  to  comply 
therewith."  Plaintiff  denied  the  alleged  contract  in  toto 
and  most  of  defendants'  testimony  relating  thereto. 

Appellants'  eleven  assignments  criticize  the  court  be- 
low for  trial  errors,  except  the  last,  which  complains  of 
the  refusal  to  grant  a  new  trial.  In  reply,  appellee  con- 
tends she  was  entitled  to  binding  instructions,  and,  there- 
fore, all  the  alleged  errors  are  immaterial.  After  a  study 
of  the  record,  including  the  testimony,  we  conclude  that 
appellee's  contention  must  be  sustained. 

Defendants'  claim  of  title  being,  avowedly,  founded  on 
an  oral  contract,  contrary  to  the  statute  of  frauds,  in- 
volving a  bargain  between  mother  and  sons  for  the  trans- 
fer of  real  estate  from  the  parent  to  her  children,  in  con- 
sideration of  the  maintenance  of  a  common  home  by  the 
latter  for  the  benefit  of  the  former,  the  burden  of  proof 


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SORBER  v.  MASTERS  et  al.,  Appellants.  587 

1919.]  Opinion  of  the  Court, 

was  upon  defendants  to  make  out  their  case  by  clear,  pre- 
cise, and  indubitable  evidence  (Derr  v.  Ackerman,  182 
Pa.  591,  596;  Wright  v.  Nulton,  219  Pa.  253,  258;  Sam- 
ple v.  Horlacher,  177  Pa.  247,  251 ;  Hart  v.  Carroll,  85  Pa. 
508,  510;  Anderson  v.  Brinser,  129  Pa.  376,  389;  Ring- 
rose  v.  Ringrose,  170  Pa.  593,  607) ;  this  they  utterly 
failed  to  do. 

When  an  attempt  is  made  to  set  up  a  parol  contract  for 
the  sale  of  real  estate  against  a  parent,  the  evidence  must 
be  "direct,  positive,  express  and  unambiguous."  The  wit- 
nesses depended  upon  to  prove  the  contract  "must  have 
heard  the  bargain  when  made,  or  must  have  heard  the 
parties  repeat  it  in  each  other's  presence ;  a  contract  is 
not  to  be  inferred  from  the  declarations  of  one  of  the 
parties":  Wright  v.  Nulton,  supra,  258-9.  Here  the 
proof  depended  upon  was  the  testimony  of  the  two  daugh- 
ters-in-law, who  had  survived  their  husbands,  and,  not 
only  is  it  most  fragmentary  in  character,  but,  as  said  by 
defendants'  own  counsel,  during  the  examination  of  one 
of  these  witnesses,  they  constantly  gave  "an  interpreta- 
tion of  her  [plaintiff's]  words  instead  of  her  exact 
words."  Neither  of  these  witnesses  pretended  to 
have  "heard  the  bargain  made" ;  they  only  asserted  hav- 
ing "heard  the  parties  repeat  it  in  each  other's  pres- 
ence," some  years  afterwards ;  but,  in  place  of  stating,  in 
totidem  verbis,  what  was  then  said,  they  insisted  upon 
giving  their  own  version,  which,  so  far  as  anyone  can  tell, 
may  consist  of  mere  deductions,  or  conclusions ;  except, 
possibly,  at  one  point  in  the  testimony,  and,  in  this  iso- 
lated instance,  the  evidence  was  not  by  any  means  suf- 
ficiently full  to  prove  the  bargain  averred.  So  much  for 
the  proof  of  the  oral  contract. 

If  written  memoranda,  consisting  of  separate  papers, 
are  depended  upon  to  satisfy  the  statute  of  frauds,  they 
must  when  taken  together  accord  in  every  material  par- 
ticular with  the  bargain  averred ;  parol  evidence  cannot 
be  depended  upon  to  explain  departures :  Wright  v.  Nul- 
ton, supra,  261-2.    Here  the  deed  for  the  Arnold  Farm, 


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588  SORBER  v.  MASTERS  et  al.,  Appellants. 

Opinion  of  the  Court  [264  Pa. 

alleged  to  have  been  executed  and  delivered  by  Mrs.  Sor- 
ber  to  her  sons,  when  produced  by  plaintiffs,  on  demand 
of  defendants,  instead  of  disclosing  the  consideration  set 
up  in  the  bargain  averred  by  the  latter,  called  for  a  sub- 
stantial cash  consideration  of  f  1,800;  which  material 
difference,  under  the  rule  just  stated,  was  not  suscep- 
tible of  explanation,  and,  in  point  of  fact,  so  far  as  our 
examination  reveals,  defendants  did  not  attempt  to  ex- 
plain it.  Moreover,  the  deed  being  actually  in  the  posses- 
sion of  plaintiff,  it  is  doubtful  if  the  evidence  depend- 
ed upon  to  show  delivery  thereof  was  sufficiently  strong 
to  meet  the  requirements  in  a  case  of  this  kind;  it  was 
submitted  for  what  it  was  worth,  however,  and  the  jury 
very  properly  found  the  fact  against  defendants. 

Again,  while  an  alleged  will  of  plaintiff,  produced  at 
the  trial,  shows  two  of  the  farms  devised  to  her  sons,  the 
document  makes  no  reference  whatever  to  any  special 
consideration  for  such  devises,  and  shows  no  connection 
between  these  testamentary  dispositions  and  the  bargain, 
or  contract,  averred  by  defendants ;  it  is  an  ordinary  will, 
subject  to  be  revoked  at  any  time  before  testator's  de- 
cease, which,  as  a  written  memorandum,  fails  to  satisfy 
the  requirements  of  the  statute  of  frauds. 

Finally,  no  exclusive  possession,  such  as  required  to 
take  the  case  out  of  the  statute,  was  shown  to  have  been 
assumed  by  the  sons;  in  point  of  fact,  they  and  their 
mother  continued  to  live  on  and  work  the  farms  much  as 
they  had  before  the  date  of  the  alleged  oral  contract. 

We  have  not  as  yet  touched  the  principal  point  insisted 
upon  by  plaintiff;  which  would  have  been  conclusive  in 
her  favor,  even  though  defendants  had  proved  the  bar- 
gain, or  contract,  set  up  by  them. 

The  alleged  contract  is,  in  brief,  that  the  two  sons  were 
to  provide  a  home  for  their  mother  on  the  farms,  and  to 
"live  upon  and  manage  the.same^;  in  consideration 
whereof  she  was  to  transfer  the  several  properties  to 
them.  The  substituted  defendants  make  the  fact,  that 
the  bargain  was  for  a  'liome,"  perfectly  plain;  for,  at 


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SOEBER  v.  MASTERS  et  aL,  Appellants.  589 

1919.]  Opinion  of  the  Court. 

the  only  point  in  their  testimony  where  the  exact  words 
of  the  mother  are  given,  this  appears :  "  *I  made  an  agree- 
ment with  the  boys/  she  said,  'to  provide  me  a  home' " ; 
and,  later  on,  the  same  witness  stated  that  plaintiff  had 
said  she  wanted  her  boys  to  "stay  home  and  make  a  home 
for  her." 

There  are  cases,  of  the  same  general  character  as  the 
one  before  us,  where  the  bargain  was  considered  as  mere- 
ly for  maintenance  and  support,  without  regard  to  the 
essential  elements  of  a  home,  and,  therefore,  not  as  a  per- 
sonal undertaking  on  the  part  of  the  grantee ;  but,  in  these 
instances,  it  will  be  found  that  either  the  grantor  elected 
thus  to  treat  the  contract  or  the  contract  itself  in  effect 
so  provided.  Here,  however,  the  alleged  bargain  is  be- 
tween a  mother  and  her  two  sons  for  the  maintenance  of 
a  home  by  the  latter  for  the  former,  and,  in  the  making  of 
such  a  contract,  it  must  be  assumed  the  mother  desired  to 
provide  for  something  more  than  mere  shelter  and  food; 
that  she  desired,  contemplated  and  bargained  for  the 
companionship,  comfort,  personal  attention  and  affection 
of  her  own  flesh  and  blood,  and  none  of  the  contracting 
parties  intended  that  the  mother,  in  her  old  age,  should  be 
obliged  to  live  with  such  strangers  to  her  blood  as  might 
acquire  the  real  estate  in  question.  Thus  it  may  be  seen 
that  the  alleged  contract,  in  this  case,  calls  for  something 
more,  of  a  personal  nature,  than  the  mere  payment  of 
money  for  the  support  and  maintenance  of  plaintiff ;  and, 
in  addition,  it  expressly  requires  the  sons  to  live  upon 
and  manage  the  farms  during  the  whole  of  their  mother's 
life.  Such  an  undertaking  is  a  distinctly  personal  one, 
which  terminated  with  the  death  of  the  two  boys  (East- 
man v.  Batchelder  and  wife,  36  N.  H.  141, 150 ;  Leahy  v. 
Cheney,  90  Conn.  611, 614,  and  L.  R.  A.  1917,  D.  809,  note 
p.  812 ;  Prater  v.  Prater,  94  S.  C.  267, 275 ;  and  see  Dick- 
inson v.  Calahan,  19  Pa.  227;  Shirley  v.  Shirley,  59  Pa. 
267,  273 ;  Blakely  v.  Sousa,  197  Pa.  305, 329) ;  this  being 
so,  even  though  the  bargain  averred  had  been  sufficiently 
proved  (which  it  was  not),  plaintiff,  nevertheless,  would 


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590  SOEBBE  v.  MASTEES  et  al.,  Appellants. 

Opinion  of  the  Court  [264  Pa. 

have  been  entitled  to  the  affirmance  of  her  request  for 
binding  instructions/leaving  defendants  to  their  remedy, 
if  any,  for  the  recovery  of  the  cost  or  value  of  what  may 
have  been  furnished  to  the  mother  or  spent  on  the  im- 
provement of  the  properties,  under  the  alleged  contract : 
see  Prater  v.  Prater,  supra. 

On  the  peculiar  facts  of  this  case,  to  say  that  the  points 
discussed  in  the  last  paragraph  are  not  covered  by  the 
pleadings,  is  no  sufficient  answer.  The  two  sons  being 
alive  at  the  time  the  pleadings  were  made  up,  the  points 
in  question  could  not  have  been  so  raised ;  but,  when  the 
death  of  the  sons  was  suggested  of  record,  and  subse- 
quently proved  by  defendants,  plaintiffs  request  for 
binding  instructions  necessarily  called  for  consideration 
not  only  of  the  legal  adequacy  of  the  evidence  depended 
upon  to  prove  the  contract  alleged  by  defendants,  but  (in 
view  of  the  record  as  it  then  stood)  it  also  involved  the 
potency  of  that  contract,  if  proved,  to  overcome  plaintiffs 
title.  We  conclude  that,  in  either  aspect  of  the  case, 
defendants  were  not  entitled  to  go  to  the  jury ;  hence  no 
good  purpose  would  be  served  by  a  new  venire,  and  none 
of  the  alleged  trial  errors  needs  to  be  considered. 

The  assignments  are  dismissed,  and  the  judgment  is  af- 
firmed. 


Tigue  v.  Forty  Fort  Coal  Company,  Appellant 

Workmen's  compensation — Referee's  findings  of  fact — Review  by 
compensation  board — Rearing  de  novo. 

The  Workmen's  Compensation  Board  cannot  reverse  an  award 
of  compensation  upon  an  appeal  from  the  referee's  findings  of  fact 
without  a  hearing  de  novo. 

Argued  April  14, 1919.  Appeal,  No.  189,  Jan.  T.,  1919, 
by  defendant,  from  judgment  of  C.  P.  Luzerne  Co.,  May 
T.,  1917,  No.  810,  reversing  the  decision  of  the  Work- 
men's Compensation  Board,  which  reversed  an  award  of 


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DIGUE  v.  FORTY  FORT  COAL  CO.,  Appellant.     591 
1919.]  Statement  of  Facts — Opinion  of  the  Court. 

compensation  made  by  the  Eef  eree  in  the  case  of  Bridget 
Tigue  v.  Forty  Fort  Coal  Company.  Before  Brown, 
C.  J.,  Moschziskbr,  Fbazbb,  Simpson  and  Kephart,  JJ. 
Affirmed. 

Appeal  from  Workmen's  Compensation  Board.  Be- 
fore O'Boyle,  J. 

The  court  reversed  the  decision  of  the  compensation 
board  and  entered  judgment  in  favor  of  the  claimant,  ac- 
cording to  the  recommendation  of  the  referee,  that  com- 
pensation be  awarded  to  the  claimant  for  the  death  of  her 
husband.    Defendant  appealed. 

Errors  assigned  were  the  decree  of  the  court  awarding 
compensation  and  action  of  the  court  in  sustaining  claim- 
ant's appeal  from  compensation  board. 

Benjamin  R.  Jones,  with  him  John  R.  Wilson,  for  ap- 
pellant.— It  was  the  duty  of  the  court  to  remand  the 
case  to  the  board  with  directions  to  grant  a  hearing 
de  novo,  as  contemplated  by  the  statute :  Koch  v.  Phila. 
&  Reading  Ry.  Co.,  5  Dep.  Rep.  of  Penna.  143 ;  O'Shaugh- 
nessy  v.  Dravo  Construction  Co.,  3  Dep.  Rep.  8. 

Roger  J.  Dever,  for  appellee. — The  compensation 
board  cannot  reverse  the  referee's  findings  of  fact  with- 
out a  hearing  de  novo:  McCauley  v.  Imperial  Woolen 
Mills  Co.,  261  Pa.  312. 

Per  Curiam,  May  5, 1919 : 

The  referee  found  that  at  the  time  claimant's  husband, 
an  employee  of  the  defendant,  was  killed,  he  was  return- 
ing from  work  "on  the  premises  of  defendant  company," 
and  that  "at  the  time  of  the  accident  the  decedent  was 
leaving  his  place  of  employment  by  a  customary  route  of 
going  to  and  from  the  Four  Foot  Tunnel  to  the  homes 
of  employees  and  was  along  or  over  the  railroad  tracks  on 
property  of  defendant  company  enclosed  by  a  fence" 


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592    TIGUB  v.  FORTY  PORT  COAL  CO.,  Appellant 

Opinion  of  the  Court  [204  Pa. 

From  these  findings  of  fact  the  Forty  Fort  Coal  Company 
appealed  to  the  compensation  board,  which  reversed  the 
award  of  the  referee,  without  a  hearing,  de  novo.  This  it 
could  not  do:  McCauley  v.  Imperial  Woolen  Company 
et  al.,  261  Pa.  312;  and  the  learned  court  below  properly 
sustained  the  claimant's  appeal  to  it. 
Appeal  dismissed  and  award  of  referee  affirmed. 


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INDEX. 


ACCOUNTING. 

1.  Contracts  —  Sale —  Monthly  deliveries  —  Maximum  and 
minimum  clauses — Resale — Profits.  Diamond  Alkali  Co.  ▼. 
JEtna  Explosive  Co*  804. 

ACCEETIONS. 

1.  Waters — Rivers  —  Riparian  owners — Low  watermark — 
Boundaries.    Blaok  t.  American  International  Corp.,  260. 

ACTIVE  TKUST. 

1.  Trusts  and  trustees  —  Spendthrift  trust  —  Husband  as 
trustee  and  beneficiary.    Fox's  Est.,  478. 

AFFIDAVIT. 

1.  Mechanic's  lien — Amendment — Mistake — Averments  in 
affidavit.    Dyor  t,  Wallace,  169. 

AFFIDAVIT  OF  DEFENSE,  see  Practice,  0.  P. 

ALLEGATA  ET  PROBATA. 

1.  Negligence — Master  and  servant — Fall  of  grit  or  dust  of 
celling — Continuing  work — Risk  of  employment — Accident — 
Nonsuit.    Ellett  t.  Lit  Bros.,  185. 

2.  Negligence — Railroads — Infant  trespasser — Frightening 
boy  from  car — Proximate  cause  —  Concurrent  causes  —  Res 
gestm — Pleading — Nonsuit.  Torlotski  t.  Phila.  Jfc  Heading 
By  Co**  85. 

AMENDMENT. 

1.  Benefits  of  an  improper  allowance — Estoppel. 

One  who  takes  a  benefit  under  an  amendment  cannot  after- 
wards complain  that  the  amendment  was  improperly  allowed. 
Bergman  T.  Straus,  489. 

2.  Election  law — Appeal- Practice,  Supreme  Court — Assign- 
ments of  error.    Padden  s  Contested  Election,  188. 

8.  Election  law  —  Jurisdiction  of  court  —  Thirty-day  limit. 
Dnnmore  Borough's  Election,  281. 

4.  Foreign  attachment— Parties— Practic*,  G.  P.—Dissolur 
tion.    Bergman  t.  Straus,  489. 

Vol.  cclxiv— 38  (598) 


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594  INDEX. 

AMENDMENTS— continued. 

5.  Partition — Land  in  two  counties — Jurisdiction  —  Aver* 
ments  of  bill — Appearance — Practice,  C.  P.    Kevin  t.  Cata- 


ANNUITY. 

1.  Will — Charge  on  land  —  Proceedings  to  charge  —  Defi- 
ciency of  annuity  —  Lease — Waiver  —  Estoppel.  Jonnston's 
Est^71. 

ANSWER. 

1.  Executors  and  administrators — Mismanagement — Remov- 
al— Testimony — Petition — Discretion  of  court.  Miller's  Eat., 
310. 

APPEALS. 

1.  Criminal  law — Murder— Degrees  —  Charge  —  Interroga- 
tion as  to  other  crime — Desertion  from  army — Offense — State- 
ment of  dying  man — Res  gestae — Admission — Exhibit — Discre- 
tion of  court — Review.    Com.  t.  Brown,  85. 

2.  Criminal  law — Murder — Non  vult  contendere  with  draw- 
ing plea.    Com.  t.  Skrope,  246. 

3.  Election  law — Amendment — Practice,  Supreme  Court — 
Assignments  of  error.    Padden's  Contested  Election,  183. 

4.  Equity  —  Preliminary  injunction  —  Maintaining  status 
quo.    Bailey  t.  Tonne  Women's  Christian  Assn.,  515 

5.  Evidence  —  Opinion  of  expert  —  Exceptions.  Kakn  t. 
Quaker  City  Gab  Co.,  510. 

6.  Interlocutory  orders — Foreign  attachment — Act  of  April 
26, 1917,  P.  L.  102. 

Interlocutory  orders  are  not  the  subject  of  review  until  after 
final  judgment,  unless  expressly  made  so  by  statute. 

Quaere  does  the  Act  of  April  26,  1917,  P.  L.  102,  allowing 
an  appeal  from  an  order  quashing  or  refusing  to  quash  a  writ 
of  foreign  attachment,  apply  to  an  order  refusing  to  quash  the 
attachment  itself.    Bergman  t.  Straus,  439. 
•     7.  Moot  questions — Authority  of  public  officers. 

The  Supreme  Court  will  not  decide  questions  merely  for  the 
purpose  of  establishing  the  authority  of  public  officers  where  its 
judgment  cannot  be  given  effect  in  the  case  in  which  the  ques- 
tions are  raised.    Winston  t.  Ladner,  548. 

8.  New  trial — Abuse  of  discretion. 

The  action  of  the  court  below  in  refusing  to  grant  a  new 
trial  will  not  be  reversed  except  in  case  of  abuse  of  discretion. 
Kakn  ▼.  Quaker  City  Cab  Co.,  510. 


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INDEX.  595 

APPEALS— continued. 

9.  Practice,  C.  P. — Affidavit  of  defense— Waiver — Set-off — 
Reply — Admission.    Federal  Sales  Co.  t.  Farrell,  149. 

10.  Practice,  Supreme  Court — Assignments  of  error — Mo- 
tion for  judgment  n.  o.  v. — Withdrawal  of  motion — New  trial. 
International  Forge  Co.  v.  Paul  8.  Beeves  ft  Co.,  431. 

11.  Practice,  Supreme  Court — Record — Omitted  evidence — 
Review  of  rulings  affected  thereby.  De  March!  t.  Cent.  R. 
R.  Co..  321. 

12.  Practice,  Supreme  Court — Interlocutory  order — Quash- 
ing appeal.    Kaeir9*  Est.,  224. 

13.  Practice,  Supreme  Court — New  trial — Abuse  of  discre- 
tion— Assignments  of  error.    Whitcomb  t.  Philadelphia,  277. 

14.  Supreme  Court — Question  not  raised  below. 

If  objection  to  the  right  of  the  judge  to  preside,  is  not  made 
in  the  common  pleas,  it  cannot  be  made  in  the  appellate  court. 
Corporation  F.  Sc  F.  Go.  t.  Ston'regen,  215. 

APPEARANCE. 

1.  Partition — Land  in  two   counties — Jurisdiction  —  Aver- 
ments of  bill — Amendment — Practice,  C.  P.    Kevin  v.  Oata- 
eh,  523. 


APPRAISEMENT. 

1.  Taxation — Coal  lands— Foot  acres  standard.  State  Line 
ft  Sullivan  R.  R.  Co. »  Taxation,  489. 

ARBITRATION. 

1.  Contracts — Penalties — Liquidated  damages — Municipal 
contracts — Municipalities.    Gnrran  v.  Philadelphia,  111. 

2.  Municipalities  —  Municipal  contracts  —  Liquidated  dam- 
ages— Penalties — Contracts.    Gnrran  v.  Philadelphia,  111. 

ARCHITECT. 

1.  Mechanics'  liens — Plans — Bill  of  particulars — Unliqui- 
dated damages — Breach  of  contract— Discharge  of  architect. 
Dyer  v.  Wallace,  169. 

ASSIGNMENTS  OF  ERRORS,  see  Practice,  Supreme  Court. 

1.  Criminal  law — Murder-— Evidence  —  Weapon  —  Declara- 
tions of  deceaseds-Degrees  —  Charge  —  Abstract  question  — 
Character — Charge  as  to  law — Presence  of  defendant  in  court 
—New  trial—Assignments  of  error—Practice,  Supreme  Court. 
Com.  v.  Bednoroiki,  124. 

2.  Election  law— Amendment— Appeal— Practice,  Supreme 
Court.    Padden'i  Contet ted  Election,  188. 


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596  INDEX. 

ASSIGNMENTS  OF  ERROR— continued. 

3.  Practice,  Supreme  Court — Appeals — Motion  for  judg- 
ment n.  o.  v. — Withdrawal  of  motion — New  trial — Verdict 
excessive.  International  Force  Co*  t.  Panl  S.  Bootoo  Jt  Co., 
481. 

4.  Practice,  Supreme  Court — Excerpt  from  charge.  Gordon 
t.  Philadelphia  Rapid  Transit  Co.,  461. 

5.  Practice,  Supreme  Court — General  exception — Request 
of  instruction.    Gordon  t.  Phila.  Rapid  Transit  Co*  461. 

6.  Negligence — Charge  of  court — Damages — Charge  as  to 
damages.    Gordon  t.  Phila.  Rapid  Transit  Co*,  461. 

7.  Practice,  Supreme  Court — Documentary  evidence.  Dm- 
qaesne  Bond  Go.  ▼.  Ameriean  8*  Go*  203. 

8.  Practice,  Supreme  Court  —  New  trial  —  Abuse  of  discre- 
tion— Appeals.     Whiteomb  t.  Philadelphia,  277. 

ATTACHMENT  EXECUTION. 

1.  Settlement  of  accounts — Evidence — Payment— Overpay- 
ment— Fraud. 

On  an  attachment  execution,  a  judgment  on  a  verdict  in 
favor  of  the  garnishee  will  be  sustained,  where  it  appears  that 
the  defendant,  a  contractor,  was  building  a  railway  for  the 
garnishee;  that,  on  a  settlement  of  accounts  between  defendant 
and  garnishee  one  week  after  the  attachment  was  issued,  it  was 
discovered  that  the  defendant  who  had  been  paid  for  his  work 
in  bonds,  had  received  by  mistake  or  inadvertence  $17,500  of 
bonds  in  excess  of  what  was  due  him;  that  the  bonds  had  been 
delivered  to  defendant  without  strict  regard  to  estimates,  as 
the  work  progressed,  in  order  to  facilitate  their  sale ;  and  that 
these  particular  bonds  had  been  delivered  to  defendant  before 
the  attachment  issued,  but  that  the  credits  therefore,  by  de- 
fendant's direction,  had  not  been  made  until  after  that  date. 

In  such  a  case  the  plaintiff  cannot  contend  that  since  the 
bonds  were  given  defendant,  they  belonged  to  him,  and  not  to 
the  garnishee,  and  that  after  the  attachment  was  served,  neither 
the  status  of  such  securities  nor  the  proceeds  from  the  sale 
thereof,  could  in  any  manner  be  changed  by  a  settlement  of  the 
accounts  between  the  defendant  and  garnishee  in  which  plain- 
tiff took  no  part. 

The  real  question  was  whether  the  garnishee  owed  defendant 
anything  when  the  attachment  was  served.  If,  at  the  time, 
defendant  was  overpaid,  and  a  balance  of  the  account  was  due 
the  garnishee,  an  adjustment  in  good  faith  of  that,  balance, 
even  after  the  date  of  the  attachment,  by  paying  back  the  pro- 
ceeds from  the  sale  of  the  bonds  inadvertently  advanced,  could 
not  make  the  funds  thus  received  by  the  garnishee  subject  to 


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ATTACHMENT  EXECUTION— continued. 

the  attachment,  for  these  honds,  in  reality,  never  belonged  to 
defendant. 

On  an  attachment  execution,  -where  a  traction  company  for 
which  the  defendant,  under  a  contract,  is  building  a  railway, 
is  served  as  garnishee,  a  claim  that  an  initial  payment  in  cash 
to  which  defendant  was  entitled  under  the  contract,  had  not  in 
fact  been  paid  to  him  by  the  garnishee,  is  not  sustained  by 
evidence  to  the  effect,  that  the  check  for  that  amount,  of  a 
railway  company,  with  whom  defendant  had  also  a  construction 
contract,  was  given  to  the  traction  company,  the  garnishee, 
which  on  the  same  day,  gave  its  check  to  defendant  for  a  like 
amount,  and  this  or  the  latter's  check  for  the  same  amount, 
was  given  to  the  railway  company;  that  all  these  checks  were 
drawn  upon  the  same  company;  and  that  the  total  capital 
stock  of  the  garnishee  amounted  exactly  to  the  amount  repre- 
sented by  the  checks.  Such  evidence  shows  that  the  railway 
company  had  either  actual  cash  in  bank  or  sufficient  credit  to 
meet  the  check  given  to  the  garnishee,  and  that  upon  the  de- 
posit of  such  check  the  latter  had  an  adequate  balance  to  its 
credit,  when  it  made  the  payment  to  defendant  in  absence  of 
allegation  or  proof  of  fraud.  Am*  8.  Co.  of  K.  Y.  ▼.  Yamde- 
grift  0*n*t*Mtlon  ۥ*,  193. 

2.  Stock  of  corporation — Stipulation  on  appeal — Inter- 
pleader proceedings — Res  adjudicata — Parties. 

An  attachment  execution  was  issued  against  a  railway  com- 
pany to  attach  shares  of  stock  standing  in  the  name  of  the  de- 
fendant in  the  execution.  After  judgment  against  the 
garnishee,  an  appeal  was  taken,  and,  in  lieu  of  bail  on  appeal, 
a  stipulation  was  entered  into  by  the  plaintiff  and  defendant 
in  the  attachment  proceedings,  and  a  corporation  and  others 
claiming  ownership  of  the  stock,  by  which  it  was  agreed  that 
the  shares  should  be  deposited  with  the  prothonotary  of  the 
lower  court,  that  the  garnishee  might  prosecute  its  appeal, 
that  the  appeal  should  not  be  a  supersedeas,  that  the  plaintiff 
might  proceed  by  interpleader  proceedings,  by  serving  the 
claimants  with  an  appropriate  writ;  that  the  alleged  owners 
should  have  the  right  to  file  a  claim  for  the  stock  alleged  to  be 
owned  by  them,  and  that  the  question  of  the  ownership  of  the 
shares  should  be  determined  in  the  proceedings  in  the  manner 
provided  by  the  Sheriff's  Interpleader  Act  of  1897.  The  gar- 
nishee did  not  prosecute  its  appeal;  but  the  defendant  insti- 
tuted the  interpleader  proceedings,  as  soon  as  an  attempt  was 
made  physically  to  take  the  stock  in  execution.  The  corpora- 
tion claimant  of  the  stock  was  not  a  party  in  the  attachment 
proceedings,  was  not  served  therein,  did  not  intervene,  and  had 


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598  INDEX. 

ATTACHMENT  EXECUTION  --continued. 

no  notice  of  them,  other  than  the  knowledge  of  certain  of  its 
officers  acquired  when  they  were  not  acting  for  the  claimant. 
Held,  (1)  that  the  claim  of  the  corporation  alleging  owner- 
ship of  the  stock  was  not  res  adjudicate  by  the  attachment 
proceedings;  (2)  that  the  corporation  could  under  the  stipu- 
lation establish  its  ownership  of  the  stock  in  the  interpleader 
proceedings;  (3)  that  the  fact  that  the  appeal  of  the  garnishee 
was  not  pressed,  was  immaterial. 

The  Act  of  June  16,  1836,  Section  34,  P.  L.  761,  f  67,  does 
not  compel,  but  permits,  a  claimant  of  stock  to  become  a  party 
to  the  attachment  suit.  Dmquesne  Bond  Corp.  t.  Am*  S. 
Co.  of  K.  Y.,  203. 

AUTOMOBILES. 

1.  Negligence— Boys  sledding  on  streets — Speed— Signal — 
Sounds — Evidence.    Wetkerill  t.  Skowell,  Fryer  Jt  Co.,  449. 

2.  Negligence— City  streets — Pedestrian — Duty  to  look  be- 
hind.   Lamont  t.  Adams  Express  Co.,  17. 

8.  Negligence — Collision  with  pedestrian — Children  crossing 
street — Control  of  car — Speed.    McMillan  t.  Strathmaan,  13. 

4.  Negligence  —  Street  crossing  —  Pedestrian  —  Looking  — 
Contributory  negligence — Case  for  jury.  Healy  t.  Sbedaker, 
512. 

5.  Negligence — Master  and  servant — Injury  to  third  person 
— Liability  of  master — Unauthorized  use  of  master's  automo- 
bile.   Kennedy  ▼.  Knott,  26. 

6.  Negligence — Running  down  pedestrian  between  crossings. 
Anderson  t.  Wood,  98. 

7.  Negligence — Right  angle  collision — Speed — Contributory 
negligence.    Simon  t.  Idt  Bros.,  121. 

8.  Negligence — Running  by  standing  car — Speed — Evidence 
— Case  for  jury.    McEroy  ▼.  Quaker  City  Cab  Co.,  418. 

BAILMENT. 

1.  Brokers — Illegal  sale  of  stocks  without  notice — Measure 
of  damages — Conversion. 

Where  stock  brokers  illegally  sell  stock  carried  for  a  cus- 
tomer on  a  margin  without  notice,  they  are  liable  for  the  high- 
est price  of  the  stock  between  the  date  of  the  conversion  and 
that  of  the  trial  at  which  the  loss  is  to  be  determined.  Ber- 
berion's  Est..  437. 

BENEFICIAL  ASSOCIATIONS. 

1.  Beneficiaries — Designation  of  beneficiary. 
Where  the  by-laws  of  an  unincorporated  beneficial  society 
provide  for  payments  of  death  benefits  to  a  beneficiary  desig- 


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BENEFICIAL  ASSOCIATIONS- continued. 

nated  by  the  member,  with  nothing  to  indicate  that  they  are 
to  become  a  part  of  the  deceased  member's  estate,  no  recovery 
can  be  had  against  the  association  by  an  administrator  of 
the  deceased  claiming  for  the  next  of  kin,  nor  by  the  next  of 
kin  directly  even  if  no  beneficiary  was  named,  or  the  designa- 
tion was  fatally  defective.  Even  if  the  fund  were  paid  to  a 
person  not  in  fact  the  beneficiary  named,  the  association  would 
not  subsequently  be  liable  to  the  administrator  or  next  of  kin 
of  the  member. 

Such  an  unincorporated  beneficial  society  is  not  an  insurance 
company,  and  the  member  and  his  beneficiary  have  only  such 
rights  as  grow  out  of  the  rules  of  the  society  and  the  contract 
between  the  parties.  Diekersoii  t.  MicLrale  Beneficial  Am**, 
415. 

2.  Fraudulent  sale  of  assets — Legal  fraud— Officers  and  di- 
rectors— Conspiracy — Equity — Equity  jurisdiction. 

On  a  bill  in  equity  against  the  officers  and  directors  of  an 
incorporated  beneficial  society  to  recover  moneys  received  by 
them  from  the  assets  of  the  society,  where  it  is  charged  that 
the  directors  fraudulently  joined  in  a  conspiracy  to  transfer 
the  assets  and  control  of  the  society  to  irresponsible  persons, 
with  the  knowledge  that  such  person  intended  to  loot  the 
society,  a  decree  against  one  of  the  directors  for  the  amount 
that  was  actually  received  by  him,  will  be  sustained,  where  it 
appears  that  although  the  court  below  exonerated  him  from 
the  charge  of  conspiracy  and  actual  fraud,  it  found  him  guilty 
of  a  legal  fraud  in  agreeing  to  stand  aside,  for  a  consideration 
payable  from  the  funds  of  the  society,  and  permit  strangers  to 
secure  possession  of  the  society  and  its  assets. 

In  such  a  case,  equity  has  jurisdiction,  as  the  action  is  based 
upon  the  misfeasance  of  corporate  officers  in  unlawfully  and 
fraudulently  receiving  corporate  funds.  Keystone  Guard  t. 
397. 


BILL  OF  PAETIOULABS. 

1.  Mechanics'  liens — Architect — Plans — Supervision  of  con- 
struction— Requisites  of  lien — Unliquidated  damages — Breach 
of  contract.    Dyer  t.  Wallace,  169. 

BILL  OF  REVIEW. 

1.  Decedents'  estates — Widow's  exemption  and  allowance— 
Mistake— Laches.    Okappell's  Bet*  486. 


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600  INDEX. 

BOND. 

1.  Principal  and  surety — Duress — Affidavit  of  defense — Con- 
clusion of  law.    Walton  t.  i— itom  Saretr  Go.  of  X.  Y* 

272. 

BOROUGHS. 

L  Negligence— Creek  in  middle  of  street— Safer  route — 
Failure  to  look — Contributory  negligence — Province  of  court. 
HwgWey  ▼.  Makanoy  City  Boromgk,  482. 

BOUNDARIES. 

1.  Road  law — Unopened  streets — Deed — Implied  easement 
of  right-of-way — Presumption — Res  gestm — Rebuttal — Estop- 
pel — Dedication — Damages.    Hawke*  t.  Philadelphia,  346. 

2.  Waters — Rivers — Riparian  owners  —  Low  watermark  — 
Accretions.  Black  ▼.  American  International  Corporation, 
260. 

BROKERS. 

1.  Bailment — Illegal  sale  of  stocks  without  notice—Measure 
of  damages — Conversion.    Berherieh'e  Bit*  487. 

BURDEN  OF  PROOF. 

1.  Criminal  law — Murder— -Insanity— Evidence— Hereditary 
insanity.    Com.  ▼.  Dale,  862. 

2.  Evidence — Action  on  death  benefit  certificate— Pleading 
— Statement  of  claim.  Tkatch  ▼•  Knights  and  Ladlai  of 
Security,  578. 

CASE  FOR  JURY. 

1.  Negligence— Automobiles— Street  crossing— Pedestrian— 
Contributory  negligence.    Healy  t.  flhodakor,  512. 

2.  Negligence  —  Automobile  —  Running  by  standing  car— 
Speed — Evidence.    MeEroy  t.  Quaker  City  Gab  Co^  418. 

8.  Negligence — Master  and  servant — Safe  place  to  work — 
Case  for  jury.    Coppola  t.  Sehamm  Sc  Uklinger,  Inc.,  88. 

CHARGE. 

1.  Criminal  law — Murder— Evidence — Weapon — Declara- 
tions of  deceased— Degrees — Abstract  question — Character — 
Charge  as  to  law — Presence  of  defendant  in  court — New  trial 
— Assignments  of  error— Practice,  Supreme  Court.  Com.  u. 
Bednorclkl,  124. 


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OTTARTTABLE  BEQUESTS. 

1.  Wills — Unincorporated  society — Belief  of  members  and 
needy  persons  of  British  descent  in  City  of  Philadelphia — 
Death  within  thirty  days.    Lawson's  Est.,  77. 

COMMISSIONS. 

1.  Insurance  —  Foreign  insurance  company  —  License  of 
agent    Reilly  t.  Prudential  In*.  Co.  of  Am*  61. 

COMPENSATION  BOARD,  see  Workmen's  Compensation. 

1.  Findings  of  fact — Workmen's  compensation — Review  by 
court.    Gallagmer  t.  Walton  Mfg.  Co.,  29. 

CONSIDERATION. 

1.  Contract — Fraud—Evidence — Principal  and  agent — Dis- 
closed principal — Decedents'  estates.    Kroger9*  Bst.,  51. 

8.  Promissory  notes  —  Negotiable  instruments  —  Accommo- 
dation maker— Affidavit  of  defense.  Laekawanna  Troet  Co, 
t.  Carlnoei,  226. 

CONSPIRACY. 

1.  Beneficial  societies  —  Fraudulent  sale  of  assets  — Legal 
fraud — Officers  and  directors  —  Equity — Equity  jurisdiction. 
Keystone  Guard  t.  Seaman,  397* 


CONTRACT. 

1.  Affidavit  of  defense— Sufficiency  —  Vague  and  indefinite 
averments  —  Action  for  purchase  price  —  Failure  to  deliver 
article  contracted  for — Contract  —  Certificate  of  architect. 
Permntlt  Co*  t.  Wallace,  9. 

2.  Breach — Measure  of  damages — Damages — Profits. 

The  measure  of  damages  for  the  wrongful  cancellation  of  an 
exclusive  sales  agency  contract,  is  the  value  of  the  contract  at 
the  time  of  the  breach,  and  if  it  reasonably  appears  that  profits 
would  be  realized,  if  the  contract  were  carried  out,  and  that 
the  loss  of  such  benefits  necessarily  followed  the  breach,  their 
amount  may  constitute  the  true  measure  of  damages. 

The  amount  of  such  profits  are  necessarily  uncertain,  and 
the  law  does  not  require  absolute  certainty  of  data  upon  which 
they  are  estimated;  all  that  is  required  if  such  reasonable 
certainty  that  damages  may  not  be  based  merely  upon  specula- 
tion and  conjecture.    Maean  t.  Scandinavia  Belting  Co*,  884. 

3.  Consideration— -Fraud — Evidence  —  Receipt  —  Principal 
and  agent — Disclosed  principal — Decedents'  estates. 

At  the  audit  of  the  account  of  an  executor  of  an  insolvent 
decedent  a  claim  was  presented  for  $25,000  based  on  a  writing 


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60?  INDEX 

CONTRACTS— continued. 

signed  by  decedent.  It  appeared  that  decedent  had  been  the 
president  of  a  street  railway  company,  and  that  the  claimant 
was  a  plumber.  Two  years  before  decedent's  death  it  was  dis- 
covered that  the  railway  company  had  been  illicitly  tapping 
fire  lines  and  unlawfully  using  city  water.  Claimant  found 
this  out,  and  suggested  to  decedent  that,  if  he  were  given  the 
contract  to  meter  the  fire  lines,  he  could  arrange  it  so  that  the 
city  would  make  no  claim  for  water  previously  illicitly  used. 
An  oral  contract  was  then  made  by  which  a  certain  amount 
was  fixed  for  construction  work,  and  a  further  sum  of  fifteen 
per  cent  on  the  savings  due  to  such  metering.  Claimant  was 
paid  by  the  company  for  the  construction  work  and  receipted 
in  full  "for  all  services  rendered."  Subsequently  claimant 
pressed  the  decedent  to  pay  him  the  per  centage  for  the  saving, 
and  as  a  result  decedent  prepared  a  paper  which  was  signed 
by  both.  In  this  paper  it  was  recited  that  claimant  had  agreed 
to  accept  $25,000  in  full  payment  for  metering  and  that  de- 
cedent had  agreed  to  pay  fifteen  per  cent  on  the  savings  from 
the  metering.  The  decedent  bound  himself,  his  heirs,  executors 
and  assigns,  and  the  company,  to  protect  claimant  for  the  full 
amount  of  $25,000,  further  stating,  T  will  see  the  above  sum 
is  paid  you  in  amounts  as  may  be  required  from  time  to  time 
for  your  personal  use."  The  consideration  was  stated  in  the 
following  language:  "In  consideration  of  the  faithful  and 
efficient  service  rendered  by  you  to  the  company,  and  to  me  in 
the  matter  of  metering  the  fire  lines  for  the  company." 

The  only  allegation  of  fraud  was  that  claimant  had  deceived 
decedent  into  the  original  agreement,  not  that  the  contract  in 
question  grew  out  of  fraud  against  the  city.  The  court  found 
as  a  fact  from  the  evidence  in  the  case  that  the  promise  of  the 
payment  of  percentage  on  the  savings  was  the  express  promise 
of  the  decedent,  and  that  there  was  no  fraud.  Held,  (1)  that 
the  receipt  to  the  company  did  not  bar  claimant  from  demand- 
ing payment  of  the  percentage  from  the  decedent's  estate;  (2) 
that  the  writing  and  the  other  evidence  were  sufficient  to  estab- 
lish a  contract  of  the  decedent  based  on  a  valuable  consideration 
to  pay  claimant  the  sum  of  $25,000;  (3)  the  evidence  was  not 
sufficient  to  establish  fraud;  and  (4)  there  was  a  valuable  con- 
sideration.   Kruger's  Est*,  51. 

4.  Consideration — Mutuality  —  Stock  subscription — Agree* 
ment  to  purchase  products  of  the  corporation. 

A  contract  to  purchase  ten  barrels  of  beer  per  week  from  a 
brewing  corporation  entered  into  as  part  of  an  agreement  for 
the  purchase  of  twenty  shares  of  the  capital  stock  of  the  cor- 


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INDEX.  #08 

CONTRACTS— continued. 

poration  is  not  lacking  in  mutuality.    Nolle  t.  Mat.  Union 
Brewing  Co.,  534. 

5.  Consideration — Validity — Public  policy — Liquor  laws — 
Act  of  May  18,  1887,  Sec.  5,  P.  L.  108— Act  of  June  9,  1891, 
Sec.  2,  P.  L.  681. 

An  agreement  by  a  retail  liquor  dealer  to  purchase  a  certain 
quantity  of  beer  each  week  from  a  brewing  company  does  not 
offend  against  public  policy  as  declared  in  the  statutes  regulat- 
ing the  granting  of  licenses  to  liquor  dealers,  which  provide  in 
case  of  retail  dealers  that  the  applicant  for  license  shall  be 
the  only  person  pecuniarily  interested  in  the  business,  and  in 
the  case  of  wholesale  dealers  that  the  applicant  for  license  is 
not  in  any  manner  pecuniarily  interested  in  the  profits  of  the 
business  conducted  at  any  other  place  in  the  county  where  any 
of  the  liquors  are  sold  or  kept  for  sale,  if  the  brew- 
ing company  in  question  has  no  wholesale  license  for  the 
county  in  which  the  retail  dealer  is  licensed  and  operates  under 
a  State  license  in  an  adjoining  county.  Under  the  contract 
the  brewing  company  derived  no  pecuniary  interest  in  the  re- 
tail dealer's  business.  Nolle  t.  Mutual  Union  Brewing  Co., 
584. 

6.  Construction  —  Existing  circumstances  —  Agreement  by 
dealer  to  purchase  goods  from  manufacturer — Duration — No 
express  limitation  as  to  time — Right  to  terminate  upon  notice. 

A  contract  by  a  retail  liquor  dealer  to  purchase  shares  of 
capital  stock  of  a  brewing  corporation  and  to  purchase  from 
the  corporation  a  certain  quantity  of  beer  each  week  without 
any  limitation  as  to  the  time  he  was  to  continue  purchasing 
beer  may  not  be  terminated  at  any  time  upon  reasonable  notice, 
if  it  appears  that  he  entered  into  the  contract  with  knowledge 
that  the  corporation  sought  to  sell  its  stock  principally  to 
liquor  dealers,  inasmuch  as  the  evident  intention  of  the  parties 
was  that  the  agreement  should  continue  in  force  so  long  as 
he  was  engaged  in  the  business  of  selling  beer  by  retail,  situ- 
ated as  he  then  was.    Nolle  t.  Mat.  Union  B.  Co„  584. 

7.  Construction — To  convey  property — Consideration — Pro- 
vide a  home  for  grantor — Personal  performance  by  grantee — 
Termination — Death  of  grantee. 

An  agreement  by  an  aged  parent  to  convey  her  property  to 
her  two  sons  in  consideration  of  their  living  upon  and  manag- 
ing the  properly  and  maintaining  a  home  for  her  during  her 
life,  must  be  construed  to  require  a  personal  performance  by 
the  sons  and  to  terminate  upon  the  death  of  the  two  sons  dur- 
ing the  parents'  life.    Sorter  t.  Matters,  582. 


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604  INDEX. 

OONTKACTS— continued. 

8.  Decedents'  estates — Implied  contract — Family  relation — 
Note — Undelivered  note.    Bean's  Eat-,  131. 

9.  Executed  contract — Want  of  mutuality  as  defense— Re- 
ceiving consideration. 

A  party  is  not  in  a  position  to  set  up  lack  of  mutuality  as  a 
defense  to  enforcement  of  a  contract  where  he  has  received  the 
consideration  moving  to  him  under  the  contract.  Noll©  ▼. 
Mnt.  Union  B.  C©„  584. 

10.  Municipalities — Municipal  contracts — Liquidated  dam- 
ages— Penalties — Arbitration.     Onrrnn  t.  Philadelphia,  111. 

11.  Bale  —  Contract  for  buyer's  requirement  for  year  — 
Monthly  deliveries — Maximum  and  minimum  clauses — Resale 
— Profits — A  ccounting. 

A  seller  is  not  entitled  to  an  accounting  for  profits  realized 
upon  the  resale  of  soda  ash  delivered  to  a  buyer,  a  manufac- 
turing concern,  under  a  contract  which  provided  that  the  seller 
agrees  to  sell  and  the  buyer  agrees  to  buy,  at  designated  price, 
''buyer's  entire  requirements  during  1916;  minimum  quantity 
180  tons  per  month  and  maximum  250  monthly,"  where  there 
"were  no  understandings  or  agreements  relative  to  the  contract 
or  its  subject-matter  that  are  not  fully  expressed  herein." 
The  buyer  was  entitled  to  receive  the  amount  of  soda  ash 
stipulated  in  the  contract  whether  it  was  required  in  the 
buyer's  business  or  not,  and  it  was,  therefore,  no  concern  of 
the  seller  what  the  buyer  did  with  it.  Diamond  A.  Co.  ▼• 
JEtna  Explosive  Co.,  804. 

12.  Sale — Evidence — Master's  findings  of  facts.  9 

A  claim  against  an  insolvent  corporation  in  the  hands  of  a 
receiver,  for  breach  of  contract,  will  not  be  allowed,  where  a 
master  appointed  to  make  distribution,  reports  findings  of  fact 
from  sufficient  and  competent  evidence  and  sustained  by  the 
court,  that  there  was  an  oral  agreement  by  the  claimant  to  de- 
liver to  the  company  certain  patented  devices,  which  were  to 
be  accepted  if  they  proved  satisfactory,  that  after  trial,  for  a 
considerable  time  they  failed  to  meet  the  requirements  of  the 
company  and  were  commercially  valueless,  and  that  because  of 
this  the  company  discontinued  their  further  use.  8.  G.  V.  Co. 
t.  8.  O.  V.  Co.,  377. 

13.  Sale — Warranty — Acceptance  and  implied  warranty  — 
Notice — Goods  not  ordered — Measure  of  damages. 

Where  in  an  action  for  goods  sold  and  delivered,  it  appears 
that  defendant  purchased  by  description  roll  scale,  a  byproduct 
of  a  rolling  mill,  but  that  the  plaintiff  delivered  mill  cinder, 
which  is  a  commodity  different  in  substance  and  value  from 


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OONTBAOTS- continued. 

roll  scale,  and  that  this  was  received  and  used  without  com- 
plaint or  offer  to  return,  the  defendant  can  only  be  held  for 
the  market  value  of  the  mill  cinder  delivered ;  but  if  the  plain- 
tiffs submit  evidence,  although  contradicted,  from  which 
the  jury  might  conclude  that  the  material  delivered  was,  in 
fact,  roll  scale,  as  called  for  by  the  contract,  the  case  must  be 
submitted  to  a  jury. 

The  implied  warranty  that  the  material  was  of  the  kind 
ordered,  is  one  which  survived  the  acceptance  and  use  of  the 
material  by  defendant,  without  previous  notice  to  plaintiffs. 
Samael  t.  Del.  R.  Steel  Co.,  190. 

14.  Specific  performance — Sale  of  real  estate — Statute  of 
frauds.    Weiaenberger  t.  Hnebner,  316. 

15.  Workmen's  compensation — Contract  as  to  wages  of  a 
miner — Express  contract — Implied  contract  —  Deduction  for 
materials  and  tools.    Reitmyer  t.  Ooze,  372. 

16.  Written  contract — Failure  of  minds  to  agree — Improper 
submission  of  case  to  jury — Province  of  court — Interpreta- 
tion of  correspondence. 

Where  in  an  action  on  an  alleged  contract  it  appears  that  all 
of  the  negotiations  between  the  parties  were  in  writing,  with- 
out any  oral  communications  whatever,  and  that  the  last  letter 
addressed  by  plaintiff  to  defendant  was  an  absolute  refusal  of 
defendant's  offer,  it  is  error  for  the  court  to  submit  to  the  jury 
the  question  whether  a  contract  was  in  fact  made;  and  if  the 
jury  returned  a  verdict  in  favor  of  the  plaintiff,  a  judgment 
on  such  verdict  will  be  reversed.  In  such  a  case  the  interpre- 
tation of  the  correspondence  and  its  legal  effect  are  exclusively 
for  the  court.    Feeney  ▼.  Maryland  Casualty  Co.,  46. 

CONTRIBUTORY  NEGLIGENCE. 

1.  Automobiles  —  Right-angle  collision — Speed.  Simon  ▼. 
Lit  Brof.,  121. 

2.  Master  and  servant — Negligence.  Finan  ▼.  E.  T.  Mason 
Co.,  394. 

3.  Negligence — Automobiles — Street  crossing — Pedestrian — 
Looking — Contributory  negligence — Case  for  jury.  Healy  ▼. 
Skedaker,  512. 

4.  Negligence  —  Passenger  thrown  from  moving  train  — 
Guards  between  cars — Assumption  of  risk.  De  Mareki  t. 
Cent.  B.  R.  Co..  322. 

5.  Negligence — Railroads — Position  of  peril — Sudden  emer- 
gency— Soldier  on  guard  at  bridge.  Kelly  r.  Penna*  R.  R. 
Co.,  426. 


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CONTRIBUTORY  NEGLIGENCE  —continued. 

6.  Negligence — Boroughs — Creek  in  middle  of  street — Safer 
route — Failure  to  look  —  Province  of  court.  Hangkncy  ▼. 
Mshnwoy  City  Borough,  482. 

7.  Railroads — Foreman  of  independent  contractor — Death. 
Sweatman  t.  Penna.  B.  B.  Co.,  286. 

8.  Street  railways — Collision — Crossing — Nonsuit.  Boyden 
t.  Palla.  *  West  Cheater  Traction  Co.,  187. 

CONVERSION. 

1.  Bailment — Brokers — Illegal  sale  of  stock  —  Measure  of 
damages.    Berberiea s  Bit.,  437. 

2.  Wills— Power  of  sale.    Bossier's  Est*  422. 

CONVEYANCE. 

1.  Contract  by  parent  to  convey  to  children  —  Statute  of 
frauds — Evidence — Sufficiency — Parol  evidence — Title  to  real 
estate.    Sorbcr  t.  Masters,  582. 

CORPORATIONS. 

1.  Holding  company — Separate  entity — Right  of  creditors — 
Equity — Names. 

Where  one  corporation  conducts  its  own  business  through 
the  instrumentality  of  another  and  in  its  name,  the  capital  in- 
vested therein  by  the  former  cannot  be  treated  as  a  loan  to  the 
latter  against  the  rights  of  third  parties.  In  such  a  case  equity 
looks  at  the  substance  of  the  transaction,  and  will  not  permit 
a  loss  to  be  shifted  to  innocent  parties,  because  of  the  name 
under  which  the  business  was  done  or  the  manner  of  doing  it. 
8.  G.  V.  Co.  v.  8*  O.  V*  Co.,  265. 

2.  Officers — Oifts  or  bribes — Directors. 

Gifts,  gratuities  or  bribes  given  to  a  director  to  influence  his 
official  action,  must  be  accounted  for  by  him  and  surrendered 
to  the  company.    Keystone  Guard  ▼.  Beaman,  397. 

3.  Res  judicata — Parties — Stockholder.  Macau  ▼.  Scandi- 
navia Belting  Co.,  384. 

4.  Stock — Issue  of  stock  for  services — Directors. 

In  an  equity  case  for  the  cancellation  of  stock  issued  to  a 
director  and  officer  of  a  corporation,  a  decree  dismissing  the 
bill  will  be  sustained,  where  the  court  below  finds  as  a  fact 
that  the  stock  was  issued  for  services  rendered  in  reorganizing 
the  company,  that  the  value  of  such  services  was  determined 
by  the  directors,  and  that  no  fraudulent  intent  on  the  part 
of  the  directors  was  shown  in  connection  with  the  issue.  Colo- 
nial Biscuit  Co.,  40. 


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OOBPOBAHONS— continued. 

5.  Stock — Voting  stock — Ownership — Evidence. 

Where  stock  is  voted  under  a  proxy  from  a  person  whose 
name  stands  on  the  books  of  the  corporation  as  the  owner  of 
record,  such  fact  is  not  conclusive  evidence  that  the  person  in 
question  is  the  owner  thereof,  where  the  ownership  of  the 
stock  is  in  dispute.  Such  a  fact  is  for  the  consideration  of  the 
jury  with  the  other  evidence  in  the  case.  Dnonosno  Bond 
Corp.  t.  Am,  8.  Go.  of  H.  Y„  208. 

6.  Stock — Voting  trust — Assignment  of  stock. 

Where  an  owner  of  stock  sells  it  to  another  for  value,  and 
the  vendee  deposits  it  with  a  trust  company  acting  as  deposi- 
tory for  a  voting  trust,  and  receives  the  certificate  of  the 
voting  trustees,  the  vendee  will  be  entitled  to  receive  the  stock 
if  for  any  reason  the  voting  trust  agreement  fails. 

Where,  upon  the  termination  of  a  voting  trust,  the  trustees 
executed  assignments  in  blank  in  a  sufficient  number  to  fur- 
nish one  for  each  stock  certificate,  and  these  are  delivered  with 
the  understanding  that  they  shall  be  attached  to  the  stock 
certificates,  when  the  latter  are  received  from  the  depository 
of  such  stock,  and  they  are  so  attached,  the  delivery  of  the 
assignment  in  blank,  constitutes  a  valid  transfer  of  title  out 
of  the  voting  trustees. 

Any  prior  bona  fide  assignment  of  stock  for  valet  will  ef- 
fectually pass  the  transferer's  interest  therein,  so  far  as  to 
supersede  the  rights  of  an  attachment  or  execution  creditor  to 
levy  upon  it  for  a  debt  due  by  the  transferrer.  Dnoneano 
Bond  Corp.  v.  Am.  8.  Go.  of  K.  Y.,  203. 

7.  Stockholders — Separate  entity. 

A  corporation  has  a  separate  entity  or  existence,  irrespective 
of  the  persons  who  own  its  stock,  and  this  rule  is  not  altered 
by  the  fact  that  the  greater  portion  or  even  the  entire  issue  of 
stock  happens  to  be  held  by  one  person.  Macon  t.  Soandi- 
mnvia  Belting  Co.,  384. 

8.  Stock  subscription — Fraud — Waiver. 

A  Subscriber  to  ihe  stock  of  an  insolvent  corporation  cannot 
set  up  as  a  defense  to  an  action  to  recover  the  amount  of  the 
subscription,  fraud  and  misrepresentation,  in  the  procuring 
of  the  subscription,  where  it  appears  that  after  the  subscriber 
had  discovered  the  fraud  he  retained  the  certificates  of  stock, 
and  received  and  retained  several  dividends  thereon  amounting 
to  hundreds  of  dollars.  Corporation  P.  ft  P.  Co.  v.  Stof- 
fregen,  215. 


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608  INDEX. 

COURTS. 

1.  Judge*— Orphans'  court  judge  presiding  in  common  pleas 
-De  facto  judge— Act  of  July  19, 1918,  P.  L.  8U. 

Where  under  the  Act  of  July  19, 1913,  P.  L.  844*  an  orphans' 
court  judge  specially  presides  in  the  court  of  common  pleas, 
his  acts  will  he  valid.  Even  if  the  act  were  unconstitutional, 
he  would  be  a  judge  de  facto,  and  his  acts  would  be  valid  ir- 
respective of  the  constitutionality  of  the  act.  Corporation 
P.  *  F.  Co.  v.  Stoffrogea,  215. 

COUNSEL. 

1.  Executors  and  administrators — Liability  for  loss  of  a  re- 
tail liquor  business — Findings  of  fact — Review  on  appeal — 
Orphans'  court — Surcharge  of  executors.  Mnratghan,i  Ert. 
(Ho.  1),  520. 

COUNTERCLAIM. 

1.  Pleading — Unpaid  salary — Wrongful  discharge — Tender 
of  performance  after  discharge.  Gmaranty  M.  Co.  v.  Hmdf ord 
P.  8.  Co.,  557. 

CREDITORS. 

1.  Corporations — Holding  company  —  Bight  of  creditors- 
Equity — Names.    8.  O.  V.  Co.  v.  8.  G.  V.  Co*  265. 

CRIMINAL  LAW. 

1.  Murder— Evidence — Threats — Malice. 

On  the  trial  of  an  indictment  for  murder,  it  is  not  error  to 
admit  evidence  that  defendant  employed  as  a  minor  by  the 
deceased,  and  on  a  strike,  threatened  shortly  before  the  killing 
to  "fix  the  clock"  of  the  deceased,  and  made  threats  against  the 
deceased  and  other  men  who  were  working  in  the  mine.  Such 
evidence  is  proper  to  show  malice,  hatred  and  ill  will  on  the 
part  of  the  defendant  towards  his  victim.    Com.  t.  Moon,  68. 

2.  Murder — Insanity — Evidence— Burden  of  proof — Hered- 
itary insanity. 

Where  the  defense  in  a  murder  trial  is  insanity,  the  burden 
is  on  the  defendant  to  prove  by  a  fair  preponderance  of  the 
evidence  that  he  was  insane  when  he  did  the  killing.  This 
burden  rests  on  him  throughout  the  trial,  and  he  is  required  not 
only  to  adduce  evidence  as  to  his  own  insanity,  but  also  such 
corroborating  proof  as  he  desires  to  submit. 

The  father  of  a  defendant  indicted  for  murder  who  has  set 
up  insanity  as  a  defense,  will  not  be  permitted  to  testify  to  his 
own  insanity,  or  such  acts  from  which  insanity  might  be  in- 
ferred. 


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CRIMINAL  LAW— continued. 

Where  the  insanity  of  an  individual  is  in  question  the  in- 
sanity of  his  blood  relations  in  the  ancestral  line,  either  direct 
or  collateral,  may  be  shown  in  corroboration  of  the  evidence 
showing  insanity  in  the  individual ;  but  hereditary  insanity  of 
itself  is  not  independent  proof  of  the  insanity  of  the  prisoner, 
but  it  is  circumstantial  evidence  used  to  corroborate  other 
more  direct  proof  of  insanity  in  the  accused ;  of  itself  it  cannot 
be  used  as  a  defense. 

Before  receiving  such  evidence  as  grounds  for  a  presump- 
tion of  possible  insanity,  there  must  be  some  evidence  showing 
insanity  in  the  accused.  It  must  also  appear  that  the  disease 
is  hereditary  or  transmissible  so  as  to  taint  the  family  blood. 

If  insanity  is  shown  in  the  accused,  and  insanity  be  shown 
in  collateral  kindred  of  not  too  remote  a  degree,  and  the  in- 
sanity with  which  each  suffers  is  transmissible  or  hereditary  in 
that  it  may  or  will  reappear  in  some  form  or  symptom  in  a 
descendant,  no  matter  what  symptom  it  may  take  in  the  de- 
scendant, such  evidence  may  be  introduced  without  showing  in- 
sanity in  the  direct  line,  i.  e.,  parents  or  grandparents. 

Witnesses  who  testify  to  insanity  in  the  ancestors  either  di- 
rect or  collateral,  must  do  so  from  personal  knowledge  and  ob- 
servation, and  not  from  reputation. 

Before  evidence  to  establish  hereditary  taint  may  be  intro- 
duced, proof  should  be  presented  that  the  insanity  in  the  col- 
lateral kinsman  was  transmissible,  and  not  nonhereditary. 

On  the  trial  of  an  indictment  for  murder  where  the  defense 
is  insanity,  the  father  of  the  deceased  cannot  show  that  he  had 
two  other  children  who  had  been  committed  to  an  insane 
asylum,  that  a  sister  of  the  accused's  mother  was  of  unsound 
mind,  and  children  of  the  mother's  brother  were  of  unsound 
mind,  where  there  is  no  offer  to  prove  that  the  insanity  in 
such  collateral  kinsmen  was  transmissible.    Com.  t.  Dale,  362. 

3.  Murder — Pleading — Non  vult  contendere  with  drawing 
plea— Appeal— Act  of  March  SI,  1860. 

The  plea  of  non  vault  contendere  is  never  allowable  in  capi- 
tal cases. 

Where  on  the  trial  of  an  indictment  for  murder,  the  defend- 
ant pleads  non  vult  contendere,  and  the  court  accepts  the  plea 
as  the  equivalent  of  a  plea  of  guilty,  and  after  examination  of 
witnesses  to  fix  the  degree  of  guilt,  adjudges  the  degree  of  the 
guilt  as  "murder  in  the  first  degree"  and  passes  sentence  there- 
on, such  conviction  will  be  set  aside  on  appeal,  and  the  case 
will  be  remanded  with  direction  that  the  defendant  have  leave 
to  withdraw  his  plea  of  non  vult  contendere,  and  plead  anew 

Vol.  oclxiv — 39 


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CRIMINAL  LAW— continued. 

to  the  indictment,  as  though  such  plea  had  never  been  entered. 
Com.  t.  Shrope,  246. 

4.  Murder— Evidence — Weapon — Declarations  of  deceased — 
Degrees — Charge — Abstract  question — Character — Charge  as 
to  law — Presence  of  defendant  in  court — New  trial — Assign- 
ments of  error — Practice,  Supreme  Court. 

Where  on  the  trial  of  an  indictment  for  murder,  it  is  shown 
that  a  revolver  with  calibre  similar  to  that  used  in  the  com- 
mission of  the  crime,  was  found  in  defendant's  room  with  one 
part  removed,  it  is  proper  to  permit  the  use  of  a  like  weapon, 
to  demonstrate  to  the  jury  how  the  missing  part  could  be  re- 
moved. 

Declarations  of  a  man  who  was  murdered,  made  to  his  wife 
shortly  before  his  death,  are  inadmissible,  where  there  is  no 
evidence  that  the  deceased  realized  he  was  about  to  die,  and  was 
without  hope  of  recovery.  The  rule  is  the  same  whether  such 
declarations  are  offered  for  or  against  the  accused. 

Declarations  of  the  person  injured  which  tend  to  exculpate 
the  accused,  such  as  declarations  expressing  forgiveness  or  re- 
luctance to  prosecute,  are  not  admissible,  where  they  are  not 
a  part  of  the  res  gestae  or  dying  declarations. 

An  offer  at  a  murder  trial,  to  prove  that  some  months  prior 
to  the  homicide,  a  man,  other  than  the  accused,  had  threatened 
to  fix  the  deceased,  and  that  such  man  had  been  in  the  vicinity 
on  the  day  before  the  homicide,  is  inadmissible  where  there 
is  nothing  to  connect  the  man  with  the  offense. 

At  a  trial  for  murder  the  trial  judge  does  not  commit  error 
by  charging  "We  are  concerned  in  the  case  only  with  the  sort 
of  murder  in  the  first  degree  known  as  wilful,  deliberate  and 
premeditated."  This  is  different  from  saying  "that  sort  of 
murder  known  as  wilful,  deliberate  and  premeditated." 

It  is  proper  in  such  a  case  to  charge  that  the  presumption  is, 
that  one  who  commits  an  illegal  homicide  is  guilty  of  murder 
of  the  second  degree,  and  that  the  burden  is  upon  the  Common- 
wealth to  show  such  facts  and  circumstances  as  will  raise  the 
offense  to  first  degree  murder. 

In  a  murder  case  the  court  is  not  required  to  charge  upon 
abstract  questions  not  involved  in  the  case,  and  this  is  emphati- 
cally true  where  no  request  is  made  therefor.  Thus  where  the 
defense  of  an  alibi  is  not  suggested  by  the  evidence,  or  raised 
by  counsel,  the  court  is  not  bound  to  explain  to  the  jury  the  law 
relating  thereto. 

The  court  properly  charges  in  a  murder  case,  on  character 
as  follows :   "If  under  all  the  evidence,  including  the  evidence 


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OBDONAL  LAW— continued. 

of  good  character,  you  aie  satisfied  beyond  a  reasonable  doubt 
of  the  guilt  of  the  prisoner,  you  should  convict,  notwithstand- 
ing the  evidence  of  good  character.  It  is  simply  substantive 
evidence  to  be  considered  by  you  as  such." 

It  is  not  error  for  the  court  in  such  a  case,  to  say  to  the  jury 
"you  are  the  judges  of  the  facts,  as  I  have  tried  to  explain  to 
you,  and  it  is  my  duty  to  declare  to  you  the  law."  The  best 
evidence  the  jurors  have  of  the  law  is  the  instructions  of  the 
court. 

A  conviction  of  murder  of  the  first  degree,  will  not  be  re- 
versed, because  the  sheriff  did  not  bring  the  defendant  into 
court  promptly  at  the  time  fixed  for  the  argument  of  a  motion 
for  a  new  trial,  and,  by  consent  of  counsel,  the  argument  was 
begun  in  his  absence. 

A  motion  and  reasons  for  a  new  trial  in  a  criminal  case 
should  be  set  out  in  the  assignment  of  error  relating  thereto. 
Com.  t.  Bedaoreiki,  124. 

5.  Murder — Degrees — Charge  —  Interrogation  as  to  other 
crime — Desertion  from  army — "Offense" — Act  of  March  15, 
1911,  P.  L.  20 — Statement  of  dying  man — Res  gestas — Admis- 
sion— Reading  evidence — Exhibit — Discretion  of  court — Ap- 
peal— Review — Harmless  error. 

Where,  on  the  trial  of  an  indictment  for  murder,  the  trial 
judge  eliminates  all  questions  of  murder  committed  during 
the  perpetration  of  burglary,  he  commits  no  error  in  refusing 
to  affirm  points  to  that  effect,  as  there  was  no  evidence  to 
show  the  store  entered  by  defendant,  was  part  of  a  dwelling 
house,  defendant  could  not  be  convicted  of  murder  committed 
in  the  course  of  burglary  within  the  meaning  of  the  statute 
defining  the  degrees  of  murder. 

In  such  a  case,  while  the  trial  judge  might  have  affirmed  the 
points,  his  failure  to  do  so,  in  view  of  the  circumstances,  did 
no  harm,  and  was  not  reversible  error. 

A  conviction  of  murder  will  not  be  reversed,  because  the 
district  attorney  asked  the  defendant  whether  he  was  a 
deserter  from  the  army,  and  the  defendant  answered  in  the 
affirmative,  where  it  appears  that  no  objection  was  made  at 
the  time  to  the  question,  that  subsequently  defendant  was  in- 
terrogated by  his  own  counsel  about  the  matter,  and  no 
objection  was  taken  to  the  testimony  until  the  court  refused 
to  permit  defendant  to  give  his  reasons  for  deserting.  Under 
such  circumstances  ihe  objection  came  too  late. 

Not  decided  whether  desertion  from  the  army  is  an  offense 
within  the  meaning  of  the  Act  of  March  15,  1911,  P.  L.  20, 


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612  INDEX. 

CRIMINAL  LAW— continued. 

which  forbids  persons  under  trial  from  being  interrogated  as 
to  the  commission  of  other  crimes  by  them. 

On  the  trial  of  an  indictment  for  murder  testimony  of  a 
witness  that  the  deceased,  immediately  before  his  death,  stated 
that  defendant  had  shot  him,  is  admissible,  where  the  evidence 
shows  that  the  statement  was  made  within  the  presence  and 
hearing  of  the  defendant.  If  there  is  a  question  whether  the 
defendant  actually  heard  this  particular  statement,  it  is  for  the 
jury  to  decide. 

It  is  not  reversible  error  for  the  trial  judge  in  a  murder  trial 
to  refuse  the  request  of  a  juror  to  have  read  to  him  a  portion 
of  the  testimony,  which  he  claimed  he  had  not  heard.  The 
reading  of  such  testimony  would  give  it  undue  prominence 
over  other  testimony,  and  work  an  injustice  to  one  side  or  the 
other. 

Nor  is  it  reversible  error  in  such  a  trial  to  refuse  a  request 
of  a  juror  to  view  an  exhibit  which  he  claimed  he  had  not 
seen,  where  it  is  not  shown  that  the  exhibit  had  been  offered 
in  evidence,  or  any  request  had  been  made  to  send  it  out 
with  the  jury.  Such  a  matter  is  within  the  discretion  of  the 
trial  judge. 

Where  a  defendant  is  tried  for  the  killing  of  two  men,  under 
very  similar  circumstances,  the  fact  that  the  jury  returned  a 
verdict  of  first  degree  as  to  one  of  the  men  and  of  second  de- 
gree as  to  the  other,  is  no  ground  for  reversal.  Com.  ▼.  Brown, 
85. 

CROSS-EXAMINATION. 

1.  Negligence — Evidence.  Beibstein  v.  Abbott9*  Aldemoy 
Dairies,  447. 

CROSSING. 

1.  Negligence — Street  railways  —  Collision  —  Contributory 
negligence — Nonsuit.  Boyden  ▼.  Phlla*  4e  West  Cheater 
Traction  Co.,  137. 

CUSTOM. 

1.  8ale — Evidence — Modification  of  contract — Implied  war- 
ranty.   Krebl  ▼.  M  oaeer,  403. 

2.  Sales — Trade  name — Warranty — Inspection — Damages — 
Expenses.    Griffin  ▼.  Metal  Product  Co*  254. 

DAMAGES. 

1.  Municipalities — Eminent  domain — Sewage  disposal  plant 
— Evidence  —  Prospective  development  —  Plans  —  Hearsay. 
Whiteomb  ▼.  Philadelphia,  277. 


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DAMAGES— continued. 

2.  Negligence  —  Charge  of  court — Assignments  of  error — 
Charge  as  to  damages.  Gordon  t.  Phil*.  Bapid  Transit  Co., 
461. 

3.  Negligence  —  Decrease  in  earning  power  —  Evidence. 
Dempeey  ▼.  City  of  Scranton,  495. 

4.  Negligence — Earning  power— Profits — Evidence.  Bax- 
ter t.  Phila.  *  Beading  By.  Co.,  467. 

5.  Pleading — Counterclaim — Sufficiency  —  Breach  of  con- 
tract to  furnish  goods  for  resale — Time  for  delivery — Sales — 
Anticipated  profits.  Gnaraaty  If.  Co.  t.  Hndford  P.  8. 
Co.,  557. 

6.  Road  law — Unopened  streets — Deed  —  Implied  easement 
of  right  of  way — Presumption — Res  gestm — Rebuttal — Estop- 
pel — Boundaries — Dedication — Damages.  Hawhes  t.  Phila- 
delphia, 346. 

7.  Sales — Trade  name — Custom — Warranty  —  Inspection — 
Expenses.    Griffin  t.  Metal  Product  Co.,  254. 

DEATH. 

1.  Evidence — Proof  of  death — Sufficiency — Exposure  to  peril 
— Forest  fire.  Fanning  t.  Eqnitable  Idf e  Assurance  Society, 
333. 

2.  Negligence  —  Railroads  —  Foreman  of  independent  con- 
tractor— Contributory  negligence.  Sweatman  t.  Penna.  B. 
B.  Oon  286. 

3.  Workmen's  compensation  —  Railroads  —  Interstate  cars. 
Hancock  ▼.  Phila.  *  Beading  By.  Co.,  220. 

4.  Workmen's  compensation  —  Referee's  findings — Evidence 
— Accidental  violence  to  physical  structure  of  the  body — Dis- 
ease.   Clark  t.  Lehigh  Valley  Coal  Co.,  529. 

DECEDENTS'  ESTATES. 

1.  Contract — Consideration — Fraud — Evidence  — Principal 
and  agent — Disclosed  principal.    Bracer's  Estate,  51. 

2.  Contract — Implied  contract  —  Family  relation  —  Note — 
Undelivered  note — Evidence. 

There  is  no  implied  contract  to  pay  for  services  rendered  to 
a  decedent  while  the  family  relation  exists  between  the  parties. 
No  obligation  arises  by  reason  of  an  executed  but  undelivered 
note  found  in  the  possession  of  the  maker  thereof. 

Unless  some  connection  is  shown  between  an  undelivered 
note  found  in  a  decedent's  possession,  and  an  alleged  liability 
of  decedent  to  the  payee  named  in  the  note,  the  note  is  not 
evidence  of  such  liability. 


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6U  INDEX. 

DECEDENTS'  ESTATES-continued. 

Loose  expressions  of  a  decedent  to  the  effect  that  the  claim- 
ant had  worked  faithfully  for  him,  conjoined  with  the  fact 
that  an  undelivered  note  in  the  claimant's  favor  was  found 
in  decedent's  possession,  will  not  alone  justify  an  award  for 
services  rendered.    Beam's  TsmU,  132. 

3.  Domicile  of  decedent — Intention — Declaration  in  will — 
Evidence — Existing  circumstances — Probate  of  will — Family 
or  principal  residence — Register  of  wills — Act  of  June  7, 1917, 
P.  L.  415,  Section  4. 

Philadelphia  County  and  not  Montgomery  County  must  be 
regarded  as  the  family  or  principal  residence  of  a  decedent  at 
the  time  of  his  death  for  the  purpose  of  probating  his  will, 
where  it  appeared  that  he  maintained  a  home  in  Philadelphia 
County  for  fifty  years  and  declared  in  his  will,  which  was  pre- 
pared with  great  care  after  repeated  consultations  with  his 
attorney,  that  he  reside  in  Philadelphia,  although  his  death 
took  place  in  his  country  home  in  Montgomery  County,  which 
he  had  maintained  for  about  thirty-five  years,  and  he  had,  up 
to  the  time  he  executed  his  will,  regarded  Montgomery  County 
as  his  domicile,  as  he  spent  the  major  portion  each  year  there, 
had  registered  and  voted  there,  and  made  annual  returns  to 
the  assessor  of  that  county  of  his  personal  property  for  the 
purpose  of  taxation,  it  appearing  further  that  after  the  execu- 
tion of  his  will,  which  was  about  five  and  one-half  months 
before  his  death,  he  neither  said  nor  did  anything  indicating 
that  he  longer  regarded  his  principal  residence  as  located  in 
Montgomery  County.    Wiaaor's  Eat*  552. 

4.  Family  settlement — Trusts  and  trustees — Settlement  of 
will  contest — Executors  and  administrators. 

Where  a  daughter  contests  her  father's  will,  and  a  settle- 
ment in  the  nature  of  a  family  settlement,  is  made  between 
herself  and  her  two  brothers,  who  were  also  two  of  the  three 
executors  of  the  will,  by  which,  in  consideration  of  the  with- 
drawal of  the  caveat,  the  daughter  receives  absolutely  a  portion 
of  the  estate  in  lieu  of  a  separate  use  trust  provided  by  the  will, 
such  settlement  is  void;  but  in  setting  it  aside,  the  court  will 
permit  the  daughter  to  renew  her  proceedings  to  contest  the  will, 
and  to  move  for  the  vacation  of  its  probate,  distribution  under 
the  terms  of  the  will  to  be  stayed  pending  such  proceedings. 
Sohwehm's  Eat.,  355. 

5.  Widows — Exemption — Appraisement — Will — Election  to 
take  under  will — Gifts  in  accordance  with  the  intestate  law — 


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DECEDENTS'  ESTATES— continued. 

Conversion  into  money — Act  of  June  7,  1917,  P.  L.  b&9,  and 
July  11.  1917.  P.  L.  756. 

Where  a  man  dies  after  the  passage  of  the  Act  of  July  11, 
1917,  P.  L.  755,  which  amended  the  Act  of  June  7, 1917,  P.  L. 
429,  leaving  to  survive  him  a  widow  and  collateral  kin,  and  leav- 
ing a  will  by  which  he  directed  his  estate  to  be  distributed  in  ac- 
cordance with  the  intestate  laws,  and  by  which  he  directed  his 
executrix,  the  widow,  to  convert  into  money  all  his  real  and 
personal  property,  and  the  widow  elects  to  take  under  the  will, 
the  court  will  refuse  the  widow's  petition  for  the  appointment 
of  appraisers  to  set  apart  real  and  personal  property  to  the 
value  of  $5,000;  but  the  dismissal  of  the  petition  will  be 
without  prejudice  to  the  right  of  the  widow  to  enforce  her 
claim  by  taking  credit  therefor  in  the  settlement  of  her  ac- 
count as  executrix,  and  urging  it  upon  final  distribution. 

Such  a  case  is  not  one  of  intestacy,  and  therefore  the  acts 
of  June  7, 1917,  P.  L.  429,  and  July  11,  1917,  P.  L.  755,  have 
no  application,  since  they  relate  solely  to  the  descent  and 
distribution  of  the  real  and  personal  property  of  persons  dying 
intestate.  ? 

Where,  as  here,  the  widow  takes  in  money,  no  appraisement 
is  necessary.     Carroll's  Eat.,  140. 

6.  Widow's  exemption  and  allowance — Bid  of  review — Mis- 
take—Laches — Orphans'  court — Powers — Act  of  Oct.  IS,  1840, 
P.  L.  1. 

A  bill  of  review  will  be  allowed  by  the  orphans'  court  to 
permit  a  widow  to  claim  her  exemption  of  $300,  and  her  allow- 
ance of  $5,000  under  the  Act  of  1909,  where  it  appears  that  the 
executor  upon  whom  the  widow  relied,  was  absent  from  the 
audit  on  military  service,  that  the  widow  was  not  represented 
by  counsel,  that  her  claim  was  not  considered  by  the  auditing 
judge,  that  the  shares  of  stock  which  had  been  ordered  to  be 
distributed  had  been  voluntarily  surrendered  without  change 
to  an  officer  of  the  court;  that  the  rights  of  third  parties  had 
not  intervened;  that  the  widow  moved  within  a  month  for  a 
review;  and  had  promptly  notified  the  company  issuing  the 
stock  not  to  transfer  it. 

The  orphans'  court  has  power  not  only  under  the  Act  of 
Oct.  13,  1840,  P.  L.  1,  but  under  its  inherent  power,  to  cor- 
rect an  erroneous  decree.  Under  such  power  it  may  even 
protect  parties  from  their  own  mistakes  and  blunders,  where 
no  rights  have  changed  in  consequence  of  the  decree.  Ckmp- 
pell's  Est.,  486. 


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DEDICATION, 

1.  Road  law — Unopened  streets  —  Deed — Implied  easement 
of  right-of-way — Presumption — Bee  gestae — Rebuttal — Estop- 
pel—Boundaries— Damages.    HftwkM  t.  Philadelphia,  846. 

DEEDS. 

1.  Building  restrictions — Offensive  business — Public  garage 
— Equity — Injunction — Nuisance — Laches — Delay. 

Where  the  owner  of  a  lot  in  an  exclusively  residence  section 
of  a  city,  built  up  with  fine  modern  houses,  holds  it  under  a 
building  restriction,  common  to  the  neighborhood,  which  pro- 
vides "that  there  shall  not  be  erected  upon  said  lot any 

establishment  for any  offensive  business,"  such  owner 

will  be  enjoined  from  building  an  addition  to  an  existing 
garage  which  will  increase  the  storage  capacity  of  the  garage 
from  ten  automobiles  to  twenty-four. 

If  it  appears  that  she  had  maintained  without  objection  on 
the  lot  a  garage  with  a  capacity  for  ten  automobiles  for  three 
years,  she  will  not  be  compelled  to  discontinue  it;  for  he  who 
would  enforce  a  building  restriction  by  injunction,  must  act 
promptly. 

Equity  may  restrain!  as  a  nuisance,  the  operation  of  a  public 
service  garage  in  an  exclusively  residence  section,  aside  from 
any  building  restrictions.    Hohl  t.  Modell,  516. 

2.  Conveyance  of  coal — Use  of  surface — Mines  and  mining 
— Construction  of  deed. 

A  deed  conveying  coal,  "together  with  all  the  necessary  privi- 
leges, through  and  under  the  lands for  the  opening,  min- 
ing, airing,  draining  and  transporting  to  market  of  said  coal 

hereby  sold  and  conveyed ;  also  the  privilege  of  a  road 

or  right-of-way  not  exceeding  20  feet  in  width  from  the  main 
entrance  to  said  coal,"  along  a  designated  line,  confers  no 
right  to  use  the  surface  outside  the  area  of  the  underlying 
coal  for  the  purpose  of  erecting  and  maintaining  a  coal  chute, 
storage  bins,  track  scales  and  other  structures.  Hormla*  ▼• 
Xtms,293. 

3.  Delivery — Absolute — Conditional — Escrow. 

A  deed  cannot  be  delivered  in  escrow  to  the  grantee  named 
therein;  such  a  delivery  is  absolute  and  not  conditional. 
Weisemberger  ▼.  Hmebmer,  316. 

4.  Road  law — Unopened  streets — Implied  easement  of  right- 
of-way — Presumption — Res  gestae  —  Rebuttal  —  Estoppel  — 
Boundariee  —  Dedication — Damages.    Hawket  ▼.  Phlladel- 

846. 


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DEEDS— continued 

5.  Wills — Power — Execution  of  power — Intention — Parties 
— Equity.  Peana.  Co.  for  Ins*  oiLAO.  Annuities*  Ac- 
eomnt,  433. 

DEMURRER 

1.  Negligence — Landlord  and  tenant — Stairway — Cause  of 
action — Pleading.  Borman  ▼.  United  Mereaaats  Realty  Jt 
lap.  Co.,  156. 

DEVISE. 

1.  Devise  to  children  and  their  survivors — Construction — 
Wills.    Roberts  ▼.  M oorkead,  299. 

DISCRETION  OF  COURT. 

1.  Criminal  law  —  Murder  —  Degrees  —  Charge — Desertion 
from  army — Offense — Statement  of  dying  man — Res  gestae — 
Admission — Beading  evidence — Exhibit — Discretion  of  court 
— Appeal — Review.    Com.  ▼.  Brown,  85. 

2.  Practice,  C.  P.— New  trial.  Lebo  ▼.  Reading  T.  *  L. 
Co.,  270. 

3.  Practice,  C.  P. — New  trial — Avoidance  of  injustice — Re- 
view— Supreme  Court.     Walker  ▼.  Walker,  68. 

DISEASE. 

1.  Workmen's  compensation — Referee's  findings  —  Jurisdic- 
tion of  workmen's  compensation  board — Evidence — Death — 
Accidental  violence  to  physical  structure  of  the  body.  Clark 
t.  Lehigh  Valley  Coal  Co*,  529. 

DISSOLUTION. 

1.  Foreign  attachment  —  Interlocutory  orders  —  Appeals. 
Bergman  ▼.  Straus,  439. 

DIRECTORS. 

1.  Corporations  —  Officers  —  Gifts  or  bribes.  Keystone 
Guard  t.  Beam  an,  397.  . 

2.  Corporations — Stock — Issue  of  stock  for  services.  Colo- 
aial  Biscuit  Co.  ▼•  Oroatt,  40. 

DIVIDENDS. 

1.  Railroads — Leases — Taxes — Taxation.  Green  *  Coates 
St*,  ete>,  By.  ▼•  Phila.  R.  T.  Co.,  424. 


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618  INDEX. 

DUKESS. 

1.  Principal  and  surety — Bond — Affidavit  of  defense— Con- 
clusion of  law.  Walton  t.  Aaerleu  Barety  Co.  of  H.  Yn 
272. 

EARNING  POWER. 

1.  Negligence — Damages  —  Profits  —  Evidence.  Baxter  ▼• 
Phila.  *  Beading  By.  Co.,  467. 

ELECTION  LAW. 

1.  Amendment — Appeal — Practice,  Supreme  Court — Assign- 
ments of  error. 

On  an  appeal  to  the  Supreme  Court  in  an  election  contest, 
the  appellant  will  not  be  permitted  to  raise  questions  of  law 
not  raised  in  the  court  below,  by  an  amendment  to  the  original 
petition,  adding  certain  averments  and  a  prayer  that  the 
"entire  return  may  be  thrown  out." 

Assignments  of  error  on  an  appeal  in  an  election  contest, 
will  not  be  considered,  where  they  fail  to  set  out  the  matter 
complained  of  in  totidem  verbis,  or  to  indicate  the  page  in  the 
paper-book  or  appendix  where  the  matter  included  may  be 
found. 

On  such  an  appeal,  if  the  material  instances  wherein  the 
master  and  the  court  below  differ,  involve  findings  or  state- 
ments of  fact  by  the  latter,  such  findings  or  statements  must 
be  accepted  by  the  appellate  court.  Padden'*  Contested  Elec- 
tion, 183. 

2.  Amendment — Jurisdiction  of  court — Thirty-day  limit — 
Act  of  May  19,  1874,  P-  L.  218. 

In  a  contested  election  proceeding,  an  amendment  which 
affects  the  jurisdiction  of  the  court  cannot  be  allowed  after  the 
expiration  of  the  statutory  period  of  thirty  days.  Dnnmore 
Borough's  Election,  281. 

EMBEZZLEMENT. 

1.  Principal  and  agent — Collection  of  mortgage — Fraudu- 
lent representations — Securing  mortgage  from  third  person — 
Fraud — Cancellation.    Watkins  ▼.  Benaeoter,  574. 

EMINENT  DOMAIN. 

1.  Municipalities — Sewage  disposal  plant — Damages — Evi- 
dence —  Prospective  development  —  Plans  —  Hearsay.  Wait* 
comb  t.  Philadelphia,  277. 


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INDEX.  619 

EMPLOYMENT. 

1.  Negligence  —  Master  and  servant  —  Fall  of  grit  or  dust 
from  ceiling — Continuing  work — Employer — Risk  of  employ- 
ment— Allegata  et  probata — Guessing  at  cause  of  accident — 
Nonsuit    Ellett  ▼.  Lit  Bros*  185. 

EQUITY. 

1.  Answers  to  interrogatories  —  Pleadings — Evidence  — 
Parties. 

Answers  to  interrogatories  filed  with  a  bill  in  equity  are  part 
of  the  pleadings,  and  cannot  be  offered  or  used  as  evidence 
against  other  defendants.    Weiienberger  ▼.  Hnebner,  316. 

2.  Beneficial  societies  —  Fraudulent  sale  of  assets — Legal 
fraud — Officers  and  directors — Conspiracy — Equity  jurisdic- 
tion.   Keystone  Guard  ▼.  Beaman,  397. 

3.  Corporations  —  Holding  company  —  Separate  entity  — 
Bight  of  creditors — Names.    8.  G.  V.  Co.  ▼.  8.  O.  V.  Co.,  265. 

4.  Deeds — Building  restrictions — Offensive  business — Pub- 
lic garage — Injunction — Nuisance — Laches — Delay.  Hohl  ▼. 
Modell,  516. 

5.  Findings  of  fact — Beview. 

The  findings  of  fact  by  a  chancellor,  which  involve  the 
credibility  of  witnesses  and  the  weight  to  be  given  their  testi- 
mony, will  be  given  the  effect  of  a  verdict  of  a  jury,  and  they 
will  not  be  disturbed,  on  appeal,  where  there  is  testimony  to 
support  them.  Even  if  a  doubt  existed,  it  would  not  be  ground 
for  reversal.    Shlmer  ▼.  Aldine  Trait  Co^  444. 

6.  Parties — Title — Will — Presumption — Jurisdiction —  Dis- 
missal of  bill  without  prejudice. 

Only  a  party  in  interest  can  invoke  the  equity  powers  of  a 
court  to  procure  the  cancellation  of  a  deed,  and  such  interest 
must  be  averred  and  proved. 

Where  on  a  bill  in  equity  for  the  cancellation  of  a  deed  exe- 
cuted by  plaintiff's  father,  it  appears  that  although  the  father 
died  testate  his  will  was  not  produced  in  evidence,  and  there  is 
no  proof  to  show  how  plaintiff  had  acquired  any  interest  in 
the  land  covered  by  the  deed,  the  bill  will  be  dismissed.  There 
is  no  presumption  that  the  father  died  intestate  as  to  the  land 
in  question,  or  that  he  devised  it  to  plaintiff. 

The  fact  that  the  bill  purports  to  be  filed  by  the  plaintiff 
'for  himself  and  in  behalf  of  all  other  persons  in  interest,"  is 
immaterial,  inasmuch  as  it  is  fatally  defective  for  want  of  a 
necessary  plaintiff. 

In  such  a  case  the  bill  is  also  fatally  defective  for  want  of 
necessary  defendants,  where  it  appears  that  the  deed  from  the 


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620  INDEX. 

EQUITY— continued. 

father  was  made  to  two  of  his  sons,  who  were  plaintiff's  broth- 
ers, and  that  the  defendants  named  were  the  executors  and 
heirs  of  one  of  the  sons,  and  the  widow  of  the  other,  but  no 
proof  of  the  will  of  the  first  is  offered,  and  it  is  not  shown 
whether  the  second  died  testate  or  intestate  or  who  were  his 
heirs  or  devisees. 

The  court  in  dismissing  the  bill  in  such  a  case  for  lack  of 
necessary  parties,  will  do  so  without  prejudice  to  plaintiff's 
rights,  or  those  of  any  other  party,  in  any  future  action  at  law 
or  in  equity  touching  the  deed  in  question,  or  the  title  of  the 
land  embraced  therein.    Orals  ▼.  Craig,  380. 

7.  Preliminary  injunction — Maintaining  status  quo — Ap- 
peal. 

Where  there  is  apparently  sufficient  ground  for  the  action 
of  the  court  below  in  awarding  a  preliminary  injunction  it 
will  not  be  disturbed  on  appeal;  the  status  quo  will  be  pre- 
served until  final  hearing.  Bailey  ▼•  Toaas;  Women's  Chris- 
tian. Assn*,  515. 

8.  Wills — Deeds — Power — Execution  of  power — Intention — 
Act  of  June  k,  1879,  P.  L.  88.  Penna.  Co.  for  LoiL,  etc,, 
Aeooants,  433. 

ESTATE  IN  FEE. 

1.  Will— Devise — Marketable  title.    Oyler  v.  Clements,  65. 

ESTOPPEL, 

1.  Amendments — Benefits  of  an  improper  allowance.  Berg- 
man ▼.  Straus,  439. 

2.  Municipalities — Municipal  contracts — Streets — Arbitra- 
tion clause — Repugnant  provisions.  Carram  ▼•  Philadelphia, 
111. 

3.  Road  law — Unopened  streets — Deed — Implied  easement  of 
right-of-way — Presumption — Res  gestm  —  Rebuttal — Bounda- 
ries— Dedication — Damages.    Hawkes  ▼.  Philadelphia,  346. 

4.  Will — Annuity — Charge  on  land — Proceeding  to  charge — 
Lease — Waiver.    Johnston's  Est.,  71. 

EVIDENCE. 

1.  Attachment  execution — Settlement  of  accounts  —  Pay- 
ment— Overpayment.  Ameriean  Surety  Co*  of  Hew  York  ▼. 
Vaadegrift  Con.  Co.,  193. 

2.  Burden  of  proof — Action  on  death  benefit  certificate — 
Pleading — Statement  of  claim. 

In  an  action  upon  a  death  benefit  certificate  issued  by  a  bene- 
ficial society,  the  allegation  in  the  statement  of  claim  that  all 
conditions  of  the  contract  had  been  fulfilled  by  the  assured, 


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INDEX  621 

EVIDENCE— continued. 

even  when  denied  by  the  answer,  does  not  impose  upon  the 
plaintiff  the  burden  of  proving  that  the  assured  had  paid  all 
dues  and  assessments  chargeable  against  him  up  to  the  time,  of 
his  death.    Tkatek  ▼•  Knight*  *  Ladies  of  Security,  578. 

3.  Competency  of  medical  expert — Review. 

The  question  of  the  competency  of  a  medical  expert  is  for 
the  trial  court,  and  a  ruling  thereon  will  be  reversed  only  when 
manifest  error,  or  abuse  of  discretion,  appears.  Gordon  ▼. 
Phil*.  Rapid  Transit  Co.,  461. 

4.  Contract — Consideration — Fraud — Principal  and  agent — 
Disclosed  principal — Decedent  estates.    Krager's  Estate,  51. 

5.  Contracts — Written  contract — Omission — Fraud — Plead- 
ings and  proofs.    Federal  Sales  Go.  ▼.  Farrell,  149. 

6.  Contract — Sale — Master's  findings  of  fact.  B.  G.  V.  Go. 
▼.  S.  G.  V.  Co.,  377. 

7.  Corporations — Stock — Voting  stock — Ownership.  Dn- 
qnesne  Bond  Go.  ▼•  Am.  8.  Co.,  203. 

8.  Court  records — Practice,  C.  P. 

Upon  a  motion  for  judgment  non  obstante  veredicto,  court 
records  duly  admitted  in  evidence,  if  unattacked,  may  be  con- 
sidered, no  matter  by  whom  offered.    Searles  ▼.  Boorse,  454. 

9.  Conversation — Res  gestce — Narration  of  past  event. 
Evidence  as  to  a  conversation  between  a  witness  and  the 

driver  of  an  automobile  is  incompetent  in  an  accident  case, 
where  the  circumstances  are  not  brought  out  so  as  to  show 
whether  it  was  a  part  of  the  res  gestae  or  the  narration  of  past 
events.    MeMillen  ▼•  Strathmann,  13. 

10.  Criminal  law — Murder — Weapon — Declarations  of  de- 
ceased— Degrees — Charge  —  A  bstract  question  —  Character  — 
Charge  as  to  law — Presence  of  defendant  in  court — New  trial 
— Assignments  of  error — Practice,  Supreme  Court.  Gonv  ▼. 
Bednoreiki,  124. 

11.  Criminal  law — Murder — Threats  —  Malice.  Com.  ▼. 
Moon,  63. 

12.  Decedents*  estates — Contract — Implied  contract — Family 
relation — Note  —  Undelivered  note  —  Evidence.  Bean's  Est^ 
131. 

13.  Executors  and  administrators — Removal  —  Mismanage- 
ment— Evidence.    Kaier*s  Est^  296. 

14.  Expert  testimony — Books  of  account. 

Where  the  journal  of  a  corporation  is  produced  in  evidence 
at  the  trial,  of  a  cause,  but  no  other  books  of  the  corporation 
are  offered,  the  trial  judge  commits  no  error  in  refusing  to 
permit  an  expert  bookkeeper  to  express  an  opinion  as  to  what 


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622  INDEX 

EVIDENCE— continued. 

the  journal  entries  indicated.  If  the  other  books  had  been  pro- 
duced, they  might  well  have  explained  the  meaning  of  the 
journal  entries.  Am.  8.  Co.  of  H.  Y.  ▼.  Vandegrift  Construc- 
tion Co*  193. 

15.  Laws  of  beneficial  society — Proof — Expert  testimony. 
The  constitution  and  by-laws  of  a  beneficial  society  cannot 

be  proved  and  identified  by  expert  testimony  of  a  witness  be- 
cause of  his  familiarity  with  them  or  with  the  practice  of  the 
organization.    Thatch  ▼.  Knight*  Jt  Ladies  of  Security,  578. 

16.  Libel — Malice — Discovery  of  falsity — Time  of  making 
retraction — Threatened  legal  proceedings.  Wharen  ▼.  Dor- 
shuck,  562. 

17.  Municipalities  —  Eminent  domain  —  Sewage  disposal 
plant—Damages — Prospective  development — Plans — Hearsay. 
Whitcomb  ▼.  Philadelphia,  277. 

18.  Negligence — Automobile — Running  by  standing  car — 
Speed — Case  for  jury.    M eEroy  ▼.  Quaker  City  Cab  Co.,  418. 

19.  Negligence — Railroads — Passenger — Presumption  from 
break  in  defendant's  appliance.  DeBouvier  ▼•  Penna.  B.  R. 
Co*  443. 

20.  Negligence — Cross-examination.  Bdbstein  t.  Abbott's 
Aldemey  Dairies,  447. 

21.  Negligence — Damages  —  Decrease  in  earning  power. 
Dempsey  t.  City  of  fltoranten,  495. 

22.  Negligence — Damages — Earning  power— Profits.  Ban- 
ter ▼.  Phila.  *  Beading  By.  Co^  467. 

23.  Opinion  of  expert — Exceptions — Appeals. 

On  an  appeal  in  an  accident  case  an  assignment  of  error  to 
the  admission  in  evidence  of  the  opinion  of  an  expert  will  not 
be  considered  where  no  exception  was  taken  to  the  evidence* 
Kahn  ▼•  Quaker  City  Cab  Co^  510. 

24.  Practice,  C.  P. — Charge — Points.  Am.  8.  Co.  of  H.  Y. 
▼•  Vandegrift  Con.  Co.,  193. 

25.  Proof  of  death — Sufficiency — Exposure  to  peril — Forest 
fire — Presumption  of  death — Life  insurance. 

In  an  action  on  a  life  insurance  policy  the  evidence  is  suf- 
ficient to  sustain  a  finding  that  the  insured  died  in  a  forest 
fire  where  it  appeared  that  up  until  that  time  he  wrote  fre- 
quently to  his  mother,  sending  her  money,  that  he  earned  good 
wages,  and  was  without  financial  difficulties  and  had  a  happy, 
cheerful  disposition,  and  that  when  last  seen  and  heard  of  he 
said  that  he  was  going  to  fight  the  forest  fire,  in  which  many 
persons  lost  their  lives,  some  being  burned  beyond  recognition. 


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BVTDENOE— continued. 

Although  the  time  of  the  death  of  a  person  who  cannot  be 
found  is  presumed  to  be  seven  years  from  the  date  on  which  he 
was  last  heard  from,  the  presumption  may  be  overcome  from 
facts  and  circumstances  tending  to  show  that  his  death  proba- 
bly happened  sooner,  as  that  he  encountered  a  special  peril 
which  might  reasonably  be  expected  to  destroy  life.  Fanning 
▼•  Eqmitable  I*.  Ainranoe  Society,  833. 

26.  Sale — Custom — Modification  of  contract — Implied  war- 
ranty.   Krebl  t.  Mower,  403. 

27.  Statute  of  frauds — Sufficiency — Parol  evidence — Title  to 
real  estate — Contract  by  parent  to  convey  to  children — Consid- 
eration— Maintenance  of  home.    Sorber  ▼♦  Masters,  582. 

28.  Workmen's  compensation — Referee's  findings — Jurisdic- 
tion of  workmen's  compensation  board — Death  —  Accidental 
violence  to  physical  structure  of  the  body — Disease.  Clark  ▼. 
Lehign  Valley  Coal  Co.,  529. 

EXEOTJTOBS  AND  ADMINISTRATES. 

1.  Decedents'  estates — Family  settlement — Trusts  and  trus- 
tees— Settlement  of  will  contest.    Bonwenn&'s  Est*,  355. 

2.  Liability  for  loss  of  a  retail  liquor  "business — Findings  of 
fact — Review  on  appeal — Orphans'  court — Surcharge  of  execu- 
tor— Advice  of  counsel. 

In  a  proceeding  in  the  orphans'  court  to  surcharge  an  execu- 
tor for  loss  by  reason  of  depreciation  in  the  value  of  a  retail 
liquor  business,  which  the  executor  failed  to  sell,  a  decree  in 
favor  of  the  executor  will  not  be  set  aside  on  appeal,  where  the 
court  below  found  upon  sufficient  evidence  that  the  executor 
acted  in  good  faith  and  under  advice  of  counsel  in  endeavoring 
to  realize  the  highest  possible  price  for  the  business,  and  that 
before  he  could  effect  a  sale,  federal  legislation  ensued,  which 
rendered  the  business  worthless. 

The  findings  of  an  auditor  confirmed  by  the  court  below  will 
not  be  reversed  in  absence  of  clear  error.  Mnrnaghans  Est. 
(Ho.  1),  520. 

3.  Mismanagement — Removal — Examiner  to  take  testimony 
— Petition — Answer — Discretion  of  court. 

The  orphans'  court  commits  no  error  in  refusing  to  appoint 
an  examiner  to  take  testimony  in  a  proceeding  for  the  removal 
of  an  executor  for  mismanagement  of  the  estate,  where  the 
executor's  answer  admits  the  material  averments  in  the  pe- 
tition for  his  removal.  In  such  a  case  there  is  no  necessity  for 
taking  testimony. 

It  cannot  be  said  that  the  court  abuses  its  discretion  in  re- 
moving an  executor  for  mismanagement  of  the  estate  where  he 


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624  INDEX. 

EXEOUTOBS  AND  AD10NISTBATOES--<on«mi«i 

admits  that  he  had  failed  to  pay  the  debts  of  the  decedent  and 
the  taxes  levied  against  the  estate,  and  that  he  had  misap- 
propriated a  portion  of  the  rentals,  made  assets  for  payment  of 
debts,  and  fails  to  make  any  satisfactory  explanation  of  his 
actions.    Miller**  Est.,  311. 

4.  Removal — Mismanagement — Evidence — Act  of  May  1, 
1861,  P.  L.  680. 

It  must  clearly  appear  that  the  executor  is  wasting  or  mis- 
managing the  property  or  estate  under  his  charge,  or  that  for 
any  reason  the  interests  of  the  estate  or  property  are  likely  to 
be  jeopardized  by  the  continuance  of  the  executor,  to  warrant 
his  removal  upon  those  grounds.    Kaler's  Eat.,  296. 

EXCEPTIONS. 

1.  Evidence — Opinion  of  expert — Appeals.  Xaan  ▼•  Quaker 
City  Gab  Oon  510. 

2.  Partnership — BUI  in  equity  for  an  accounting.  Fiskman 
▼.  Brown,  25. 

EXPERT  TESTIMONY. 

1.  Evidence — Laws  of  beneficial  society — Proof.  Tnatea  ▼. 
Knight*  *  Ladies  of  Seeurlty,  578. 

FINDINGS  OF  FACT. 

1.  Equity — Review.    Shimer  ▼•  Aldlne  Trust  Co.,  444. 

2.  Executors  and  administrators — Liability  for  loss  of  a  re- 
tail liquor  business.    Mmrntghan'i  Est.  (No.  1),  520. 

3.  Workmen's  compensation — Referee — Issues  —  Accident — 
Interstate  commerce — Review  by  court.  Reilly  ▼•  Erie  B.  R. 
Co.,  329. 

4.  Workmen's  compensation — Review  by  court.  Gallagher 
t.  Walton  Mfg.  Co.,  29. 

FOREIGN  ATTACHMENT. 

1.  Appeals-r-Interlocutory  orders.    Bergman  t.  Straus,  489. 

2.  Amendments  —  Parties — Practice,  C.  P. — Dissolution — 
Act  of  June  18, 18S6,  P.  L.  583. 

One  who  is  made  a  defendant  by  amendment  and  as  such 
enters  security  and  dissolves  a  foreign  attachment  under  Sec- 
tion 62  of  the  Act  of  June  13,  1836,  P.  L.  583,  allowing  de- 
fendants so  to  do,  cannot  afterwards  complain  that  the  amend- 
ment was  improperly  allowed. 

An  objection  to  a  writ  of  foreign  attachment  that  there  is  no 
auch  corporation  defendant  as  is  named  in  the  writ,  will  not 


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FOREIGN  ATTACHMENT— continued. 

be  sustained  if  the  party  making  it  has  been  substituted  as  de- 
fendant in  place  of  the  corporation,  and  has  taken  advantage  of 
a  right  given  only  to  defendants. 

A  foreign  attachment  which  has  been  dissolved  by  the  entry 
of  security  has  ceased  to  exist,  and  cannot  thereafter  be 
quashed. 

When  a  defendant  enters  security  and  dissolves  a  foreign  at- 
tachment the  action  must  proceed  in  due  course  in  like  manner 
as  if  commenced  by  a  writ  of  capias  ad  respondendum,  and  the 
writ  cannot  thereafter  be  quashed.    Bergman  ▼.  Straus,  439. 


FOREMAN. 

1.  Contractor— Negligence — Railroads  —  Independent  con* 
tractor — Contributory  negligence  —  Death.  Sweatman  ▼• 
Penna.  R.  B.  Co-  286. 

FORFEITURE. 

1.  Insurance — Life  insurance — Loan  —  Payment  —  Notice. 
Carter  ▼•  Metropolitan  Idfe  Ins.  Co.,  505. 

FRAUD. 

1.  Contract  —  Consideration  —  Evidence  —  Principal  and 
agent — Disclosed  principal  —  Decedents'  estates.  Kroner's 
Estate,  51. 

2.  Contracts — Written  contract  —  Omission  —  Evidence  — 
Pleadings  and  proofs.    Federal  Sales  Co.  ▼•  Farrell,  149. 

3.  Corporations — Stock  subscription — Waiver.  Corpora- 
tion F.  Jt  F.  Co.  ▼•  Stoffregen,  215. 

4.  Principal  and  agent — Collection  of  mortgage — Fraudu- 
lent representations — Embezzlement — Securing  mortgage  from 
third  person — Cancellation.    Watkins  ▼.  Benseoter,  574. 

5.  Trusts  and  trustees — Trustee  ex  maleficio — Conveyance 
by  mother  to  son — Statute  of  frauds — Verbal  promise  as  to 
real  estate.    Hatener  ▼.  Hatener,  105. 

GIFT. 

1.  Decedents'  estates — Widow's  exemption — Appraisement — 
Will— Election  to  take  under  will — Oift  in  accordance  with  the 
intestate  laws.    Carroll  s  Est^  140. 

HARMLESS  ERROR. 

1.  Criminal  law — Murder — Charge — Desertion  from  army—' 
Offense — Statement  of  dying  man — Res  gestm — Admission — 
Evidence — Exhibit — Discretion  of  court — Appeal  —  Review. 
Com.  ▼•  Brown,  85. 

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626  INDEX 

INFANT. 

1.  Negligence—Railroads — Trespasser  on  cars.  Minute  t. 
Fail**  *  Bedims  By.  Ce.,  98. 

INJUNCTION. 

1.  Deeds — Building  restrictions — Offensive  business — Pub- 
lic garage — Equity — Nuisance — Laches — Delay.  Hohl  ▼.  Mo- 
dell,  516. 

2.  Injunction  bond — Liability  —  Determination  —  Prelimi- 
nary injunction — Disposition  upon  the  merits. 

On  an  appeal  from  an  order  granting  a  preliminary  injunc- 
tion, the  merits  of  the  case  will  not  be  examined  into  except 
to  the  extent  necessary  to  determine  the  propriety  of  the  in- 
junction at  that  stage  of  the  proceeding. 

Liability  upon  an  injunction  bond  is  not  determined  until  a 
determination  upon  the  merits  of  the  case.  Winston  ▼•  Lea- 
ner, 548. 

INSANITY. 

1.  Hereditary  insanity — Burden  of  proof — Evidence — Mur- 
der.   Com.  ▼.  Bale,  362. 

INSURANCE. 

1.  Foreign  insurance  company — License  of  agent — Codec- 
tion  of  commissions  by  agent. 

Where  a  contract  between  a  foreign  insurance  company  and 
its  agent  provided  for  commissions  to  the  agent,  on  insurance 
written  by  him,  such  agent  cannot  recover  commissions  on  in- 
surance written  during  a  period  when  he  had  not  been  author- 
ized by  the  insurance  commissioner  of  the  State  of  Penn- 
sylvania to  transact  business  in  the  State  as  the  agent  of  the 
defendant.    Reilly  ▼.  Prudential  Ins.  Co^  61. 

2.  Life  insurance — Loan — Payment — Forfeiture — Notice — 
Construction  of  policy — Doubt. 

Where  the  insured,  under  a  life  policy,  secures  from  the 
company  a  loan  amounting  to  the  full  cash  value  of  the  policy 
as  of  the  date  when  the  next  annual  premium  became  due, 
and  dies  after  that  date  without  having  paid  either  the  loan 
or  the  premium,  the  executor  may  recover  the  face  value  of 
the  policy  less  the  loan  and  unpaid  premium,  where  it  appears 
that  the  policy  provided  that  a  failure  to  repay  a  loan  with 
interest  "shall  not  avoid  the  policy  unless  the  total  indebted- 
ness hereon  to  the  company  shall  equal  or  exceed  such  loan 
value  at  the  time  of  such  failure,  and  until  twenty-one  days 


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INSURANCE— continued. 

after  notice  shall  have  been  mailed  by  the  company  to  the;  last 
known  address  of  the  insured,"  and  it  appears  that  no  such 
notice  was  ever  given  by  the  company. 

An  existing  doubt  as  to  the  construction  of  the  different 
parts  of  a  policy  of  insurance  must  be  resolved  in  favor  of  the 
insured.    Garter  ▼.  Metropolitan  Life  Ins.  Co.,  505. 

INTEREST. 

1.  Municipalities — Eminent  domain — Damages  —  Delay  in 
payment — Presumption  as  to  rate.  Whiteomb  ▼.  Philadel- 
phia, 277. 

INTERPLEADER. 

1.  Attachment  execution — Stock  of  corporation — Stipulation 
on  appeal — Res  adjudicata — Parties.  Duquesne  Bond  Corp. 
t.  Am.  8.  Co.  of  H.  Y.,  208. 

INTERSTATE  CARS. 

1.  Workmen's  compensation — Railroads — Death.  Hancock 
▼.  Phila.  *  Reading  By.  Co.,  220. 

INTERSTATE  COMMERCE. 

1.  Workmen's  compensation — Finding  of  fact  —  Referee — 
Issues — Accident — Review  by  court.  Beilly  ▼•  Erie  B.  B. 
Con  329. 

INTERSTATE  COMMERCE  COMMISSION. 

1.  Railroads — Rates — Schedules — Interstate  commerce — In- 
trastate commerce — Ovantum  meruit  —  Pennsylvania  Public 
Service  Commission — Jurisdiction.  Pittsburgh  ALE.B.R. 
▼.  South  Shore  B.  B.,  162. 

ISSUES. 

1.  Workmen's  compensation — Finding  of  fact — Referee  — 
Accident — Interstate  commerce — Review  by  court.  Beilly  ▼• 
Erie  B.  B.  Co.,  329. 

JUDGMENT. 

1.  Equity — Decree  pro  confesso  against  trustee — Effect  upon 
equitable  owner — Defense — Statute  of  frauds. 

A  decree  pro  confesso  against  a  dry  trustee,  who  holds  the 
legal  title  to  land,  does  not  prevent  the  owner  of  the  equitable 
title  from  interposing  the  statute  of  frauds  in  opposition  to  the 
enforcement  of  the  contract  as  against  him  or  his  land.  Weia- 
enberger  ▼.  Hnehner,  316. 


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628  INDEX 

JURISDICTION. 

« 

1.  Equity— Parties — Title — WW— Presumption  —  Dismissal 
of  bill  without  prejudice.    Orals  v.  Oral**  380. 

2.  Partition — Land  in  two  counties  —  Averments  of  bill  — 
Amendment — Appearance — Practice,  C.  P.  Kevin  ▼.  Oata- 
naek,  528. 

3.  Railroads — Bates — Schedules — Interstate  commerce — In- 
trastate commerce — Ovantum  meruit  —  Pennsylvania  Public 
Service  Commission  —  Interstate  Commerce  Commission  — 
Jurisdiction.  Pittsburgh  Jt  Lake  Erie  R.  R.  Co*  ▼•  Sontk 
Shore  R*  R.  Co*.  162. 

LACHES. 

1.  Decedents'  estates — Widow's  exemption  and  allowance — 
BUI  of  review — Mistake.    Ckappell's  Est.,  486. 

2.  Deeds — Building  restrictions — Offensive  business — Public 
garage — Equity — Injunction — Delay.    Hekl  v*  Modell,  516. 

LANDLORD  AND  TENANT. 

1.  Negligence — Stairway— Cause  of  action — Pleading — De- 
murrer.   Boraaa  v.  Halted  Merekaats  Realty  Sc  lap*  Co., 

156. 

LEASE. 

1.  Mines  and  mining — Exhaustion  of  coal — Right-of-way  to 
other  coal.    Idllibrldge  ▼•  Iiaekawaaaa  Coal  Co.,  235. 

2.  Will — Annuity — Charge  on  land — Proceedings  to  charge 
— Deficiency  of  annuity — Waiver — Estoppel.  Johnston's  Est*, 
71. 

3.  Railroads  —  Dividends  —  Taxes  —  Taxation.  Green  St 
Coates  Sts.,  etc.,  By*  Co*  ▼•  Pklla.  Rapid  T.  Co*,  424. 

LEGACIES,  see  Wills. 

1.  Codicil  reducing  legacy — Will — Construction.  Provost's 
Estate,  27. 

LIBEL. 

1.  Action  for  libel — Trial — Instruction  to  jury — Conduct  of 
parties.    Wkaren  v.  Dershnek,  562. 

2.  Implied  malice — Publishing  article  known  to  be  false. 
An  instruction  in  a  libel  case  that  if  the  defendant  knew  the 

article  to  be  false  when  he  published  it,  that  would  be  implied 
malice,  is  not  reversible  error  on  the  theory  that  it  gave  the 
jury  to  understand  that  if  he  did  not  know  it  to  be  false,  he 
would  be  free  from  blame.    Wharen  v.  Dersnnek,  562. 


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LIBEL— continued. 

3.  Instruction  to  jury — Time  of  bringing  suit  after  publica- 
tion— Delay  in  trying  case. 

It  was  not  error  for  the  court  to  instruct  the  jury  in  a  lihel 
case  that  no  suit  had  been  brought  for  the  libel  for  eleven 
months  after  publication,  and  that  "of  course  the  first  instincts 
of  a  man,  who  is  really  damaged  by  a  libelous  publication,  is 
to  go  to  law  at  once.  He  don't  waste  time  about  it.  This  suit 
was  not  brought  for  eleven  months.  Then  it  was  not  brought 
to  trial,  as  I  have  already  suggested,  for  seven  years,  1017, 
publication  in  1010,  almost  six  years  after  suit  brought,  almost 
seven  years  after  the  article  was  published."  Wkarea  ▼.  Der- 
shnck,   562. 

4.  Mitigation — Letter  acknowledging  mistake  —  Retraction 
— Plaintiff  holding  same  position — Increased  compensation — 
Publication  without  investigation. 

Where  the  defendant  published  in  a  newspaper  on  August 
8th  a  false  account  of  a  meeting  of  the  school  board  it  was 
not  error  for  the  court  to  instruct  the  jury  that  a  letter  of  ex- 
planation acknowledging  the  mistake  dated  September  0th, 
and  the  retraction  in  the  newspaper  on  September  20th,  was  a 
sufficient  and  reasonable  retraction  and  vindication  as  far  as 
it  went 

The  court  committed  no  error  in  charging  the  jury  that 
"nevertheless  it  is  proper  for  you  to  consider  that  there  was  a 
retraction  and  that  the  behavior  of  both  the  reporter  and  of  the 
editor — subsequent  behavior  independent  of  the  article  itself — 
is  entirely  free  from  any  exhibition  of  actual  malice,  on  the 
contrary,  marked  by  evident  desire  to  make  amends,  accom- 
panied by  an  explanation,  the  reasonableness  of  which  is  for 
you.  The  plaintiff  still  holds  the  position  as  mail  carrier,  with 
increased  compensation.  There  has  been  no  loss  of  public  or 
private  esteem  under  the  evidence  here,  he  is  just  as  well  re- 
garded by  the  public  as  he  ever  was.  In  other  words,  to  sum 
up,  there  is  no  proof  in  this  case  of  actual  damage,  actual 
damages  in  dollars  and  cents." 

The  trial  court  committed  no  reversible  error  in  refusing  to 
affirm  a  request  to  charge  that  "if  you  find  the  defendant  pub- 
lished the  article  complained  of  without  any  prior  investiga- 
tion, that  it  is  false,  then  your  verdict  should  be  for  the  plain- 
tiff."   WUra  t.  Derahnok,  562. 

5.  Malice — Evidence — Discovery  of  falsity — Time  of  making 
retraction — Threatened  legal  proceedings. 

It  was  not  reversible  error  for  the  trial  court  to  refuse  to  af- 
firm a  request  to  charge  that  "if  you  find  that  the  defendant 


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680  INDEX. 

LIBEL— continued. 

did  not  make  any  retraction  in  his  paper,  when  the  falsity  of 
the  article  was  called  to  his  attention,  but  waited  until  threat- 
ened with  legal  proceedings;  and  also  find  for  the  plaintiff, 
then  such  action  may  be  considered  in  connection  with  all 
other  evidence  in  the  case,  in  determining  whether  there  was 
actual  malice  or  ill  will  toward  the  plaintiff."  Wkarea  ▼. 
Deralraek,  562. 

6.  Malice — Letter  acknowledging  mistake — Publication  of 
retraction — Instruction  to  jury. 

It  was  not  error  to  charge  the  jury  that  "in  connection  with 
the  subject  of  malice  I  may  refer  here  to  the  circumstances 
that  as  soon  as  the  matter  or  within  a  reasonable  time,  so  it 
seems  to  the  court,  after  the  matter  was  brought  to  the  atten- 
tion of  the  newspaper,  of  the  reporter  and  of  its  editor,  there 
was  not  only  a  letter  on  the  9th  of  September,  acknowledging 
the  mistake  and  offering  an  explanation  of  it,  but  there  was 
also  on  the  29th  of  September,  in  the  paper  itself,  published 
a  retraction,  making  full  amends  as  far  as  that  goes;  of  course 
not  destroying  the  liability,  if  there  is  a  liability,  but  never- 
theless, in  the  judgment  of  the  court,  going  as  far  as  could  be 
reasonably  expected  in  a  way  of  a  retraction  and  in  the  way 
of  restoring  the  plaintiff  to  the  public  esteem,  if  he  had  lost 
that  esteem."     Wkarea  ▼•  Derskuek,  562. 

7.  Malice — Mistaken  identity — Inquiry  as  to  identity  of 
person. 

It  was  not  reversible  error  for  the  trial  court  to  affirm  a  re- 
quest to  charge  that  "if  the  juiy  believe  that  the  reporter  of 
the  Plain  Speaker,  in  good  faith,  made  inquiry  from  a  responsi- 
ble and  reputable  person  as  to  the  identity  of  the  person  who 
informed  the  school  board  of  the  facts  contained  in  the  alleged 
libel,  and  understood  his  informer  to  say  such  person  was  in 
fact  Wharen,  the  plaintiff,  then  the  jury  may  accept  such  cir- 
cumstances to  rebut  any  inference  of  malice  or  negligence." 
Wkarea  t.  Dershuok,  562. 

8.  Publishing  account  of  public  meeting — Probable  cause — 
Privileged  communication. 

An  instruction  in  a  libel  case  for  publishing  a  false  account 
of  a  public  meeting,  that  if  the  defendant  did  not  know  the 
article  to  be  false,  the  implication  of  malice  could  not  be 
drawn  from  the  article  itself  as  in  ordinary  cases  of  libel,  if  it 
was  based  upon  reasonable  or  probable  cause,  for  in  such  a  case 
it  was  a  privileged  communication,  is  not  reversible  error. 

In  such  a  case  an  instruction  that  "We  say  to  you  further 
go  far  as  you  can  observe,  either  from  the  surrounding  circum- 


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INDEX.  631 

LIBEL— continued. 

stances  or  from  the  article  itself,  the  motive  and  the  manner 
were  proper,  and  therefore  all  the  requirements  of  a  privileged 
communication  would  be  met,  if  it  was  not  known  to  be  false/' 
is  not  reversible  error.    Wharen  ▼•  Dershuck,  562. 

9.  Responsibility  of  publisher  for  act  of  agent — Malice — 
Punitive  damages. 

The  trial  court  committed  no  reversible  error  in  refusing 
to  affirm  a  request  to  charge  that  "if  the  jury  find  for  the 
plantrff,  and  find  that  the  reporter  was  the  duly  authorized 
agent  of  the  defendant  in  procuring  news  and  in  sending  the 
article  complained  of,  and  that  the  reporter  had  no  ground 
to  believe  the  truth  of  the  article,  but  was  actuated  by  malice 
and  ill  will  toward  the  plaintiff,  then  the  defendant  is  responsi- 
ble for  such  malice  of  his  agent,  and  you  may  award  exemplary 
or  punitive  damages."    Wharen  ▼•  Derahuek,  562. 

LICENSE. 

1.  License  of  agent — Insurance — Foreign  insurance  company 
— Collection  of  commissions  by  agent  Reilly  t.  Prudential 
las.  Oo.  of  Am*  61. 

LIEN. 

1.  Mechanics*  liens — Architect — Plans — Supervision  of  con- 
struction— Requisites  of  lien — BUI  of  particulars — Unliquidat- 
ed damages — Breach  of  contract    Dyer  ▼.  Wallace,  169. 

LIFE  ESTATE. 

1.  Expenditures  for  preservation  of  estate — Trusts  and 
trustees — Refund  of  deductions  made  from  life  tenant's  income 
— Res  judicata. 

The  question  as  to  the  right  of  a  life  tenant  to  have  refunded 
to  him  income  retained  by  the  trustee  by  virtue  of  an  order  of 
court  to  expend  for  the  preservation  of  the  estate,  must  be 
regarded  as  res  judicata  where  the  Supreme  Court  on  a  pre- 
vious appeal  modified  the  decree  of  the  court  so  as  to  relieve  the 
life  tenant's  income  from  further  deductions,  and  held  that 
the  amount  previously  deducted  need  not  be  refunded  out  of 
the  principal  of  the  estate.    Wright  ▼.  Girard  Trust  Oo*,  22. 

LIQUIDATED  DAMAGES. 

1.  Municipalities  —  Municipal  contracts  —  Penalties — Con- 
tracts— Arbitration.    Ourraa  ▼•  Philadelphia,  111. 

LIQUOK  LAWS. 

1.  Contract  —  Consideration  —  Validity  —  Public    policy. 
Nolle  ▼.  Mat.  Ualon  B.  Co.,  534. 


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LOAN. 

1.  Insurance— Life  insurance— Payment  —  Forfeiture— No- 
tice— Construction  of  policy — Doubt.  Carter  t.  Metropoli- 
taa  Idfe  las.  Co-  605. 

MAT  JOE. 

1.  Criminal  law — Murder — Evidence  —  Threats.  Com*  ▼. 
Moon,  68. 

2.  Libel — Letter  acknowledging  mistake — Publication  of  re- 
traction—Instruction  to  jury.    Waarea  ▼•  Dersaaok,  562. 

MASTER  AND  SERVANT. 

1.  Negligence — Contributory  negligence.  Fiaaa  ▼.  B.  T. 
Maeoa  Co- 394. 

2.  Negligence — Fall  of  grit  or  dust  from  ceiling — Continu- 
ing work — Belying  on  promise  of  employer — Bisk  of  employ- 
ment— Allegata  et  probata — Guessing  at  cause  of  accident — 
Nonsuit.    Bllott  ▼.  Lit  Bros-  185. 

8.  Negligence — Improper  tools — Complaint  as  to  tools — Re- 
lying on  master's  judgment — Obvious  danger — Failure  to  in- 
struct— Case  for  jury.  McGrata  ▼•  Atlaatio  Beaalmg  Co- 
841. 

4.  Negligence — Injury  to  third  person — Liability  of  master 
—  Unauthorised  use  of  master's  automobile.  Keaaedy  ▼. 
Knott,  26. 

5.  Negligence — Safe  place  to  work — Scaffolding — Insecure 
guard  rail.    Belli?  t.  Bellly,  108. 

6.  Negligence — Safe  place  to  work — Case  for  jury.  Cop* 
sola  ▼.  Soaaaaw  88. 


MEASURE  OF  DAMAGES,  see  Damages. 

1.  Bailment — Brokers — Illegal  sale  of  stocks  without  notice 
— Conversion.    Berberiea's  Est-  487. 

2.  Contract — Sale — Warranty — Acceptance  and  implied  war' 
ranty — Notice  —  Goods  not  ordered — Measure  of  damages. 
Baatael  ▼.  DoL  Birer  Steel  Co-  190. 

MECHANIC'S  MEN. 

1.  Amendment — Mistake — Averments  in  affidavit. 

A  petition  to  amend  a  mechanic's  Hen  will  not  be  granted, 
where  the  affidavit  to  the  petition  fails  to  state  that  the  aver* 
ments  in  the  petition  are  true  in  fact,  or  that  there  was  any 
mistake  in  the  original  claim.    Dyer  ▼.  Wallace,  169. 

2.  Architect — Plans — Supervision  of  construction — Requi- 
sites of  lien — Bill  of  particulars — Unliquidated  damages— 


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MECHANIC'S  MEN— continued. 

Breach  of  contract — Discharge  of  architect — Act  of  June  k$ 
1901,  P.  L.  i81— Constitution,  Article  III,  Section  7. 

A  mechanic's  lien  is  a  pure  creature  of  the  statute,  and  com- 
pliance with  statutory  requirements  is  necessary  to  its  validity. 
It  must  state  facts,  and  not  depend  on  inferences.  A  bill  of 
particulars  filed  with  the  claim  becomes  a  part  of  it. 

A  rule  to  strike  off  a  mechanic's  lien  must  be  determined 
by  the  record. 

A  lien  must  set  forth  the  amount  or  sum  claimed  to  be  due, 
and  be  so  stated  as  to  form  a  basis  for  a  liquidation  of  judg- 
ment.   It  must  contain  at  least  one  valid  item. 

The  services  of  an  architect  in  preparing  plans  cannot  be 
made  the  subject  of  a  mechanic's  lien,  except  in  connection 
with  other  services  rendered  in  the  construction  of  the  build- 
ing. 

A  construction  of  the  Act  of  June  4,  1901,  P.  L.  341,  that 
would  extend  its  benefits  to  an  architect  merely  for  preparing 
plans,  would  render  it  invalid  as  a  special  law,  or  as  changing 
the  method  for  the  collection  of  debts  in  contravention  of 
Section  7  of  Article  HE,  of  the  Constitution  of  1874. 

A  mechanic's  lien  can  be  sustained  only  for  work  done  or 
materials  furnished,  and  not  for  unliquidated  damages  for 
breach  of  contract.  It  cannot  be  made  to  embrace  anything, 
whether  labor  or  material,  not  actually  furnished. 

A  mechanic's  lien  will  be  stricken  off,  where  it  shows  on  its 
.  face  that  it  was  filed  by  an  architect  for  services  in  supervising 
the  construction  of  a  manufacturing  plant  for  an  amount  equal 
to  ten  per  cent  of  the  total  cost  of  the  building,  and  that  be- 
fore the  work  was  completed  the  owner  refused  to  permit  the 
claimant  to  continue  the  supervision  of  the  unfinished  portion 
of  the  work  but  fails  to  show  the  total  cost  of  the  work,  or  the 
cost  of  any  part  of  it,  or  the  cost  of  the  work  that  was  finished 
when  the  claimant  was  discharged. 

In  such  a  case,  the  claimant  might  have  filed  a  lien  against 
the  plant  for  the  value  of  the  work  actually  done,  coupled  with 
an  averment  that  full  performance  of  the  contract  on  his  part 
had  been  prevented  by  the  owner.    Dyer  ▼.  Wallace,  169. 

MEDICAL  EXPERT. 

1.  Evidence — Competency  of  medical  expert— BevUw.  Gor- 
don t.  Phila.  B.  T.  Co.,  461. 

MEDICAL  SERVICES. 

1.  Workmen's  compensation — Refusal  of  medical  services — 
Change  of  physician — Injury — Violence  to  physical  structure 
of  body.    Near?  r.  Phlla.  Coal  Sb  Iron  Co.,  221. 


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MINES  AND  MINING. 

1.  Lease — Exhaustion  of  coal— Right-of-way  to  other  coal. 

A  bill  in  equity  by  a  lessor  in  a  coal  lease  against  the  lessee 
for  an  accounting  and  a  redelivery  of  the  property,  is  properly 
dismissed,  where  it  appears  that  the  lease  granted  to  the  lessee 
all  the  merchantable  coal  "until  the  exhaustion  thereof"  with 
full  mining  rights,  with  a  covenant  by  the  lessee  to  leave 
pillars  for  surface  support,  and  that  by  a  supplemental  agree- 
ment, the  lessee,  was  to  have  the  right  for  a  valuable  consider- 
ation named,  to  use  the  mine  as  a  right-of-way  for  the  trans- 
portation of  coal  from  adjoining  properties  owned  by  the  lessee, 
and  the  court  finds  as  a  fact  that  the  coal  is  not  exhausted,  and 
that  the  colliery  is  in  full  operation. 

In  such  a  case  the  use  of  the  mine  as  a  right-of-way  for  the 
transportation  of  other  coal  of  the  lessee,  is  not  limited  in  its 
duration  to  the  life  of  the  mining  in  the  mine  itself.  14111- 
bHdge  ▼.  Ltekswaama  Coal  Co*  235. 


MISTAKE. 

1.  Decedents*  estates — Widow's  exemption  and  allowance— 
BUI  of  review— Laches.    Ghmppoll's  Est*  486. 

2.  Mechanic's  lien — Amendment  — Averments— Affidavit 
Dyer  v.  Wallaoe,  169. 

MUNICIPALITIES. 

1.  Eminent  domain — Sewage  disposal  plant — Damages— Evi- 
dence— Prospective  development — Plans — Hearsay. 

In  a  proceeding  to  assess  damages  for  land  condemned  by  a 
city  for  a  sewage  disposal  plant,  where  it  appears  that  the 
land  was  below  the  level  of  high  tide  in  two  neighboring  rivers 
and  a  tidal  creek,  and  where  it  also  appears  that,  notwith- 
standing the  low  level  of  the  land,  the  owner  claimed  ihat  it 
was  adapted  for  manufacturing  establishments,  it  is  proper  to 
admit  evidence  as  to  how  the  property  was  protected  at  the 
time  of  the  taking  by  a  well  constructed  system  of  dykes, 
ditches  and  pumping  stations,  and  also  that  on  a  tract  of 
neighboring,  although  not  contiguous  land,  of  the  same  gen- 
eral composition,  there  had  been  built  a  large  manufacturing 
establishment.  The  opinion  of  a  witness  based  on  these  facts 
as  to  the  availability  of  the  land  for  industrial  sites,  is  clearly 
competent. 

Such  testimony,  however,  would  come  to  naught,  if  the 
owner  did  not  show  that  there  was  a  demand,  at  the  time  of  the 
taking,  for  the  land  for  manufacturing  purposes,  or  that  a  de- 
mand in  the  near  future  might  reasonably  be  anticipated. 


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MUNICIPALITIES— continued. 

For  this  purpose  he  may  offer  proof  that  similarly  located 
land  in  the  neighborhood  was  being  extensively  used  for  manu- 
facturing sites,  and  that  offers  had  been  made  to  buy  the  land, 
or  part  of  it,  as  a  manufacturing  site  at  or  about  the  time  it 
had  been  taken.  The  individual  who  communicated  the  offer, 
the  man  to  whom  it  was  communicated,  and  any  one  standing 
by  who  heard  it,  would  be  competent  to  testily  to  the  fact 
that  an  offer  had  been  made  but  not  as  to  the  amount  of  such 
offer.    Such  testimony  would  not  be  hearsay. 

A  witness  may  testify  as  to  the  use  of  properties  similarly 
situated  in  the  same  neighborhood,  having  the  same  general 
elements  as  the  property  in  question.  If  the  property  extends 
to  a  county  line,  reference  to  land  in  the  adjoining  county,  in 
like  use,  is  proper. 

It  is  also  proper  to  admit  in  evidence  in  such  a  case,  the 
prospective  development  and  the  plans  and  study  of  railroad 
extensions  in  the  neighborhood.  Such  evidence  cannot  be  con- 
sidered as  hearsay.    Wbiteomb  ▼.  Pbila^  277. 

2.  Eminent  domain — Damages — Delay  in  payment — Interest 
— Presumption  as  to  rate. 

When  land  is  taken  under  the  power  of  eminent  domain  the 
owner  thereof  acquires  the  right  to  its  value  immediately  upon 
appropriation.  Until  that  value  has  been  definitely  ascertained, 
it  is  called  damage,  not  a  debt  due;  but  when  ascertained  it 
relates  back  to  the  time  of  taking,  for  which  the  owner  is 
entitled  to  compensation  for  delay  in  its  payment,  unless  just 
cause  be  shown  to  the  contrary.  This  compensation  is  meas- 
ured by  the  normal  commercial  rate  of  interest  during  the 
period  of  detention.  If  no  evidence  is  given  as  to  that  rate, 
the  presumption  is  that  the  legal  rate  was  in  effect. 

Where  the  owner  does  not  name  an  exorbitant  price,  or  do 
anything  to  delay  settlement  he  is  entitled  to  the  legal  rate  of 
interest  as  damages;  and  it  is  not  error  for  the  trial  court  to 
refuse,  and  not  read  to  the  jury,  a  point  to  the  effect  that  "in- 
terest should  not  be  allowed  in  this  case,  inasmuch  as  the  so- 
called  Interest  Act  of  June  1,  1915,  P.  L.  685,  is  unconstitu- 
tional." The  affirmance  of  such  a  point  would  be  to  deprive 
the  owner  of  his  lawful  right  to  have  his  compensation  for  de- 
lay measured  in  the  usual  way.    Wbitcomb  ▼.  Pbila*  277. 

8.  Municipal  contracts — Liquidated  damages — Penalties- 
Contracts — Arbitration. 

Where  a  municipal  contract  for  street  cleaning  provides 
that  the  "engineer"  is  to  determine  all  questions  in  Telation 
to  the  work,  and  the  "Director  of  Public  Works"  shall  deduct 


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636  INDEX. 

MUNICIPALITIES— continued. 

certain  specified  amounts  for  defaults,  such  as  neglect  to  uni- 
form street  cleaners,  failure  to  operate  machines  strictly  in 
accord  with  the  specifications,  absence  of  employees,  and  such 
like  provisions,  and  aa  to  these  matters  the  decision  of  the 
director  shall  be  final,  such  deductions  by  the  director  are 
liquidated   damages,  and  not  in  the  nature  of  penalties. 

Liquidated  damages  may  be  provided  for  in  every  instance 
where,  from  the  character  of  the  work  to  be  performed,  it  is 
manifestly  impossible  or  most  difficult,  to  measure  the  damages, 
particularly  for  defined  anticipated  defaults,  which  may  be 
classified  as  possibly  harmful.    Omrram  ▼.  Phil*.,  111. 

4.  Municipal  contracts — Street  cleaning — Arbitration  clause 
— Repugnant  provisions — Mutuality. 

Where  a  municipal  contract  for  street  cleaning,  shows  on 
its  face,  that  it  was  clearly  intended  to  be  an  arbitration  agree- 
ment, and  the  city  sets  up  an  award  of  the  director  of  public 
works,  the  arbitrator,  as  a  defense  in  a  suit  on  the  contract,  a 
provision  at  the  conclusion  of  the  written  contract  that  the 
city  shall  not  be  bound  by  the  certificate  of  any  officer  of  the 
city,  will  not  be  considered,  and  the  contract  will  be  read  as 
though  the  clause  were  absent.  Inasmuch  as  the  clause  is  re- 
pugnant to  the  paramount  intention  of  the  parties  as  to  arbi- 
tration, it  must  give  way. 

In  such  a  case,  were  the  city  itself  to  invoke  the  repugnant 
clause,  as  a  defense,  to  an  award,  it  would  not  be  sustained, 
hence  the  contract  may  and  should  be  read  as  though  the  clause 
were  absent,  and,  when  so  viewed,  the  lack  of  mutuality  in 
the  submission  is  only  apparent,  not  real.  Cmrran  ▼•  Phila- 
delphia, 111. 

6.  Municipal  contracts — Street  cleaning — Arbitration — Two 
arbitration  clauses — Ex  parte  hearing — Waiver — Estoppel. 

When  two  arbitration  provisions  are  inserted  in  an  agree- 
ment, the  first  being  so  generally  comprehensive  in  its  scope 
as  to  apparently  take  in  disputes  of  every  nature,  while  the 
other  is  limited  to  certain  defined  questions,  they  may  both 
stand;  and  in  construing  such  a  contract,  matters  specified  in 
the  second  clause,  as  particularly  given  to  the  referee  there 
designated,  will  be  excepted  from  the  wider  jurisdiction  pre- 
viously conferred. 

Where  a  municipal  contract  for  street  cleaning  provides  that 
the  "engineer"  shall  determine  all  questions  in  relation  to  the 
work  and  the  prosecution  thereof,  and  the  'Director  of  Public 
Works"  shall  pass  upon  certain  deductions  for  defaults  speci- 
fied, the  director,  and  not  the  engineer,  is  the  person  to  pass 


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INDEX.  637 

MUNICIPALITIES— continued. 

upon  the  question  whether  the  contractor  had  made  the  par- 
ticular defaults,  and  if  he  had,  to  deduct  the  stipulated  dam- 
ages. 

In  such  a  case  where  the  contract  contains  no  provision  for 
ex  parte  hearings  before  the  director,  and  the  contractor,  after 
an  award  against  him  without  a  hearing,  brings  a  suit  on  such 
contract  against  the  city,  and  there  is  nothing  to  show  any  im- 
plied assent  on  the  part  of  the  contractor  to  an  ex  parte  hear- 
ing, or  that  there  was  any  waiver  or  estoppel  on  his  part,  which 
prevented  him  from  questioning  the  investigation,  the  fact 
that  he  failed  to  demand  a  hearing  prior  to  instituting  the 
action,  will  not  prevent  him,  after  his  suit  has  been  dismissed 
as  premature,  from  demanding  a  hearing. 

In  such  a  case  the  virtual  denial  of  the  right  to  a  hearing  by 
the  action  of  the  director,  avoids  the  award. 

A  provision  in  the  contract  that  the  work  shall  be  done  to 
the  satisfaction  of  the  director,  has  no  controlling  significance 
inasmuch  as  the  arbitration  clauses  govern.  The  director  is 
an  arbitrator,  and  must  proceed  accordingly.  Oman  ▼.  Phil- 
adelphia, 111. 

6.  Fireman — Discharge — Reinstatement — Bach  wages. 

A  city  fireman  who  was  discharged  from  service  after  he  was 
found  guilty,  by  the  firemen's  court,  of  certain  charges  pre- 
ferred against  him  is  not  entitled  to  recover  back  pay  from 
the  city  after  he  has  been  reinstated  by  a  subsequent  court, 
which  reheard  the  charges  upon  which  he  had  been  found 
guilty  by  the  previous  court,  where  no  appeal  was  ever  taken 
from  the  action  of  the  first  court,  since  the  effect  of  his  dis- 
charge was  to  dissolve  and  terminate  all  relations  between  the 
city  and  him  in  the  matter  of  employment  and  a  subsequent 
reemployment  constituted  a  new  contract  creating  new  duties 
having  no  relation  to  the  former  contract.  Winch.  ▼•  City  of 
Phlla.,  7. 

MURDER,  see  Criminal  Law. 

1.  Criminal  law — Evidence  —  Threats  —  Malice.  Ceat.  t# 
Moon,  63. 

2.  Criminal  law — Evidence — Weapon — Declarations  of  de~ 
ceased — Degrees — Charge  —  A  bstract  question  —  Characters- 
Charge  as  to  law — Presence  of  defendant  in  court — New  trial 
— Assignments  of  error— Practice,  Supreme  Court.  Com*  ▼. 
Bednoreiki,  124.  • 

3.  Criminal  law — Insanity — Evidence — Burden  of  proof- 
Hereditary  insanity.    Com*  ▼.  Dale,  362. 


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WJBDEBr-continved. 

4.  Criminal  law — Pleading — Non  wit  contendere  with  draw* 
ing  plea — Appeal.    Oom«  ▼.  Skrop*,  246. 

NEGLIGENCE. 

1.  Automobiles — Boys  sledding  on  streets — Speed—Signal — 
Sounds — Evidence. 

The  statement  by  a  witness  "I  did  not  hear  any  sound  at 
all"  is  not  evidence  of  a  failure  to  give  warning,  unless  it  ap- 
pears he  would  have  heard  it  had  it  been  sounded,  or  that  he 
was  then  giving  heed  to  the  matter. 

In  a  negligence  case  the  speed  of  the  vehicle  causing  the  in- 
jury is  unimportant,  if  it  was  not  the  cause  of  the  accident. 

A  driver  of  a  vehicle  who  has  no  knowledge  that  boys  are  in 
the  habit  of  sledding  on  a  public  street  is  not  negligent  because 
he  does  not  take  precaution  to  prevent  injury  to  one  who  might 
so  use  it. 

The  distinction  between  Eastburn  v.  United  States  Express 
Co.,  225  Pa.  33,  where  a  recovery  was  not  allowed,  and  Yeager 
v.  Gately  &  Fitzgerald,  Inc.,  262  Pa.  466,  where  it  was,  rests  in 
the  fact  that  in  the  former  case  the  driver  of  the  automobile 
did  not  know  boys  were  in  the  habit  of  sledding  on  the  street, 
and  in  the  latter  did  know  and  failed  to  take  proper  precau- 
tions to  prevent  injury  to  them.  Wetherill  t.  Showell  Fryer 
*  Co^  449. 

2.  Automobile — Collision  with  pedestrian — Children  cross- 
ing street — Control  of  car — Speed. 

Although  the  driver  of  an  automobile  truck  upon  seeing  a 
child  run  across  the  street  is  bound  to  use  care,  he  is  not 
bound  to  anticipate  that  the  child  will  run  back  across  the 
street  in  front  of  the  truck. 

In  an  action  for  injuries  to  a  child  by  being  struck  by  an 
automobile  truck  while  attempting  to  cross  the  street  in  the 
middle  of  the  block,  the  trial  judge  properly  instructed  the 
jury  that  the  driver  was  not  compelled  at  all  times  to  run  so 
slowly  that  he  could  stop  instantly,  but  that  it  was  his  duty 
to  bear  in  mind  that  children  are  apt  to  run  into  the  street  and 
to  keep  his  machine  under  control  so  as  to  be  able  to  stop  in  a 
reasonable  time  in  an  emergency,  and  that  if  he  saw  the 
danger  in  time  he  should  so  control  his  car  as  to  stop  and  avoid 
the  accident. 

In  such  a  case  it  is  proper  to  instruct  the  jury  that  "unless 
you  find  that  the  automobile  truck  of  the  defendant  was  being 
driven  at  the  time  of  the  accident  at  an  excessive  and  danger- 
ous rate  of  speed,  or  that  the  boy  was  standing  or  playing  in 


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NEGLIGENCE— continued. 

the  roadway  a  sufficient  length  of  time  for  the  driver  to  have 
seen  him  and  stopped,  then  the  verdict  must  be  for  the  de- 
fendant   MoMilUm  ▼.  Strmthmamm,  13. 

3.  Automobiles — Right  angle  collision — Speed — Contribu- 
tory negligence. 

It  is  the  duty  of  an  automobile  driver  in  approaching  a  street 
crossing  to  have  his  car  under  control  and  observe  if  vehicles 
are  approaching  on  the  intersecting  street,  and  in  case  a  car  or 
truck  is  first  at  the  crossing,  that  vehicle  must  be  given  an 
opportunity  to  cross  the  intersecting  street,  and  due  care  used 
to  avoid  collision. 

The  driver  of  a  car  is  not  required  to  anticipate  and  guard 
against  the  want  of  ordinary  care  on  the  part  of  another. 

Where  the  driver  of  an  automobile  approaches  an  intersect- 
ing street  at  a  speed  of  eight  or  ten  miles  an  hour,  and  gives 
warning,  he  is  not  bound  to  guard  against  collision  with  a  car 
approaching  on  such  street  at  a  speed  of  from  thirty  to  thirty- 
five  miles  an  hour,  without  warning,  which  he  does  not  notice 
until  the  front  end  of  his  car  is  about  five  feet  from  the  near- 
est railway  track  on  the  intersecting  street.  Slmom  ▼.  Lit 
Bros*  121. 

4.  Automobiles — Running  by  standing  car — Speed — Evi- 
dence— Case  for  jury. 

In  an  action  against  the  owner  of  a  taxicab  for  personal  in- 
juries sustained  by  plaintiff  when  run  down  by  the  cab  while 
boarding  a  trolley  car,  the  case  is  for  the  jury  where  the  plain- 
tiff's evidence,  although  contradicted,  tended  to  show  that 
plaintiff  was  standing  on  the  southeast  corner  of  a  street  inter- 
lection,  and  walked  north  on  to  the  eastbound  track,  when  the 
motorman  of  a  westbound  car,  which  was  on  the  north  track 
and  had  stopped  just  east  of  the  intersection,  signalled  him  to 
go  on,  and  he  passed  before  the  car,  and  was  about  to  enter  it 
at  the  front  door  on  the  north  side  when  he  was  knocked  down 
and  seriously  injured  by  defendant's  rapidly  moving  westbound 
taxicab,  which  without  warning  passed  close  to  the  entrance 
of  the  trolley  car.  In  such  a  case  the  evidence  justified  a  find- 
ing of  negligence,  aside  from  any  traffic  regulation.  KoEToy 
T.  Qvaker  City  Cab  Co.,  418. 

5.  Automobiles  —  Running  down  pedestrian  between  cross- 
ings. 

Vehicles  have  the  right-of-way  on  the  portion  of  the  highway 
set  aside  for  them,  but  at  crossings  all  drivers,  particularly  of 
motor  vehicles,  must  be  highly  vigilant  and  maintain  such 
control  that,  on  the  shortest  possible  notice,  they  can  stop  their 


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NEGLIGENCE-- continued. 

cars  so  as  to  prevent  danger  to  pedestrians;  on  the  other  hand, 
between  crossings,  drivers  are  not  held  to  the  same  high  stand- 
ard of  care,  although,  of  course,  they  must  be  constantly  on  the 
lookout  for  the  safety  of  others. 

A  pedestrian  cannot  be  held  to  be  negligent,  as  a  matter  of 
law,  when  he. attempts  to  cross  a  street  between  the  regular 
crossings,  but  in  exercising  this  right,  he  must  have  due  regard 
to  the  conditions  of  the  traffic  before  he  enters  the  cartway. 
If  he  deliberately  attempts  to  cross  the  street  when  vehicles 
are  rapidly  approaching  close  by,  and  injury  results,  ordinarily, 
he  will  be  chargeable  with  such  carelessness  as  to  prevent  a 
recovery  of  damages;  but,  having  observed  the  traffic,  and  it 
being  far  enough  away  that  a  pedestrian  using  due  care  would 
deem  it  safe  to  go  across  in  front  of  the  approaching  traffic, 
he  is  under  no  fixed  duty  to  look  back. 

Damages  may  be  recovered  for  the  death  of  a  pedestrian  run 
down  by  an  automobile  where  the  evidence  tends  to  show  that 
the  deceased  started  to  cross  a  street  at  a  point  from  eighty 
to  ninety  feet  from  the  crossing;  that  when  he  was  seen  in  the 
cartway  the  defendant's  automobile  was  more  than  one  hun- 
dred feet  away  from  him,  approaching  on  the  side  of  the  street 
the  deceased  was  then  crossing;  that  no  machine  or  vehicle 
was  between  the  driver  of  the  car  and  the  deceased ;  and  that 
each  had  an  unobstructed  view. 

In  such  a  case  it  was  not  negligence  for  the  deceased  to  at- 
tempt to  cross,  and  that  he  did  not  use  due  care  after  leaving 
the  sidewalk  was  for  defendant  to  establish,  unless  it  appeared 
from  the  plaintiff's  evidence.  It  was  not  necessary  for  the 
plaintiff  to  show  that  the  deceased  looked  from  right  to  left 
after  he  left  the  sidewalk.  The  presumption  is  that  he  did 
that  which  a  prudent  man  would  do  under  the  circumstances, 
and  that  he  continued  to  do  so  until  the  accident  took  place. 

Speed  is  not  the  only  element  that  enters  into  the  question  of 
negligence,  and,  regardless  of  it,  a  car  may  be  under  such  im- 
perfect control  as  to  amount  to  negligent  operation,  and  evi- 
dence of  it  would  sustain  the  charge  of  negligence.  Amderoom 
t.  Wood,  98. 

6.  Automobile* — Street  crossing — Pedestrian — Looking — 
Contributory  negligence — Case  for  jury. 

Where  a  pedestrian,  in  crossing  a  street  on  a  dark  night, 
reaches  an  island  safety  zone,  and  then  looks  southward  in  the 
direction  in  which  the  travel  is  coming,  and  seeing  no  vehicle 
approaching,  proceeds  without  continuously  looking  southward 
for  a  distance  of  twenty  feet,  when  she  is  struck  by  an  auto- 


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KEGUG£NO£-<on^ffiuad. 

mobile  bearing  no  lights,  founding  no  warning  and  going  at  a 
speed  of  from  twenty  to  thirty  miles  an  hour,  she  cannot  be 
charged  with  contributory  negligence  as  a  matter  of  law. 

If,  in  such  a  case,  it  appears  that  the  driver  of  the  car  did 
not  know  there  was  a  street  crossing  at  this  point,  it  was  his 
duty  all  the  more  to  have  his  car  under  such  control  that  he 
might  immediately  stop  it,  or  turn  it  aside  from  an  object  in- 
tercepting his  path.    Heal?  ▼•  Bhedaker,  512. 

7.  Boroughs — Creek  in  middle  of  street — Safer  route— Fail- 
ure to  look — Contributory  negligence — Province  of  court. 

.  Although  a  borough  may  be  grossly  negligent  in  failing  to 
maintain  guards  along  a  creek,  which  flows  through  the  middle 
of  a  street,  yet  a  woman  pedestrian  cannot  recover  damages 
from  the  borough  for  injuries  sustained  by  falling  into  the 
creek  on  a  dark  night,  where  it  appears  that  she  was  familiar 
with  the  street,  that  she  had  three  other  routes  safer  and  better 
lighted  which  she  might  have  taken,  and  that  she  testifies 
that  she  did  not  look  to  see  where  she  was  going,  that  she  knew 
of  the  open  stream  in  the  middle  of  the  street,  but  that  she  did 
not  look  for  it.    Haaghney  ▼.  Mahaaoy  City  Boro.,  482. 

8.  Certified  public  accountants — Absence  of  contract  rela- 
tion. 

Trespass  for  negligence  will  not  lie  against  a  firm  of  certified 
public  accountants  by  a  person  who  has  no  contractual  relation 
with  them,  for  a  loss  caused  by  such  person's  reliance  upon  a 
report  of  the  defendants  alleged  to  have  been  false  and  untrue, 
in  purchasing  the  stock  of  a  corporation,  upon  which  they  re- 
ported, where  it  appears  that  the  report  was  shown  to  him  by 
some  one  who  suggested  that  he  purchase  the  stock,  and  there 
is  nothing  to  show  that  the  accountants  made  the  report  with 
intent  to  deceive  him.    Iomdell  ▼•  Lybrand*  406. 

9.  Charge  of  court  —  Assignments  of  error  —  Damages  — 
Charge  as  to  damages. 

Where  in  an  action  to  recover  damages  for  personal  injuries 
the  jury  returns  a  verdict  for  defendant  on  which  judgment  is 
entered,  assignments  of  error  to  portions  of  the  charge  of  the 
court  relating  to  special  item  of  damages,  are  unimportant,  and 
will  not  be  considered  by  the  appellate  court  in  dismissing  the 
appeal  by  the  plaintiff.    Gordon  t.  Pnila.  B.  T.  Co.,  461. 

10.  City  streets — Pedestrian — Crossing  street  diagonally — 
Approaching  automobile — Duty  to  look  behind. 

A  pedestrian,  using  care  according  to  the  circumstances, 
may  lawfully  cross  a  city  street  at  any  point  between  as  well 
as  at  public  crossings,  and  may  do  so  directly  or  indirectly. 

Vol.  cclxiv— 41 


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642  INDEX. 

NEGLIGENCE— continued. 

A  pedestrian  is  not  as  a  matter  of  law  negligent  in  failing 
to  look  behind  for  approaching  automobiles  while  crossing  a 
street  diagonally  at  a  point  which  is  not  a  crossing,  especially 
where  he  has  safely  passed  the  car  track  in  the  middle  of  the 
street,  and  is  facing  in  the  direction  that  traffic  might  be  looked 
for  on  the  side  of  the  street  upon  which  he  is  traveling. 

A  pedestrian  is  not  as  a  matter  of  law  negligent  in  crossing 
a  city  street  where  an  approaching  automobile  is  in  plain  sight, 
since  the  speed  of  the  car,  the  distance  it  is  away,  and  the  side 
of  the  street  upon  which  it  is  approaching  and  all  the  circum- 
stances must  be  taken  into  consideration.  I*amemt  ▼•  Ada»i 
Express  Co-  17. 

11.  Collision — Automobile  truck — Pedestrian — Question  for 
jury. 

The  question  of  defendant's  negligence  and  plaintiff's  con- 
tributory negligence  is  for  the  jury,  in  an  action  for  damages 
for  personal  injuries  sustained  by  a  plaintiff  by  being  struck 
by  an  electric  truck  while  attempting  to  cross  a  city  street 
diagonally,  where  plaintiff  testifies  that  he  looked  in  both  di- 
rections for  approaching  vehicles,  and  seeing  none  he  started 
across  the  street  on  a  jog  trot,  and  that  on  account  of  public 
garages  further  down  the  street  in  the  same  block,  from  which 
automobiles  were  liable  to  emerge  and  come  down  the  street 
Suddenly,  he  kept  a  constant  look  in  that  direction  and  did  not 
look  back  in  the  direction  in  which  defendant's  truck  was  pro- 
ceeding, which  had  turned  to  the  left  side  of  the  street,  and 
without  warning  struck  the  plaintiff,  and  where  the  defendant's 
driver  testifies  that  he  turned  to  the  left  side  of  the  street  to 
clear  the  car  track  for  an  approaching  street  car,  because  part 
of  the  roadbed  was  occupied  by  a  tool  box,  mortar  bed,  etc*, 
and  that  his  attention  was  momentarily  withdrawn,  so  that 
he  failed  to  see  the  plaintiff  before  the  accident.  Lamomt  v. 
Aj>iii  Express  Co.,  17. 

12.  Contributory  negligence — Passenger  thrown  from  mov- 
ing train  while  going  to  smoking  or  dining  car — Duty  of  car- 
rier to  protect  passenger — Guards  between  cars — Assumption 
of  risk. 

It  is  not  negligence  per  se  to  pass  from  car  to  car  of  a  mov- 
ing train  in  order  to  reach  a  smoking  or  dining  car  forming 
part  of  the  train. 

It  is  the  duty  of  the  carrier  to  take  necessary  precautions  to 
protect  passengers  from  injuries  while  passing  from  ear  to  car 
under  such  circumstances. 


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NEGLIGENCE— continued. 

Passengers  have  a  right  to  assume  the  carrier  has  performed 
its  duty  in  that  regard. 

Passengers  knowing  of  the  absence  of  guards  or  chains  be- 
tween passenger  cars,  do  not  assume  the  risk  of  an  extraor- 
dinary jerk,  caused  by  a  faulty  condition  of  the  track,  when 
passing  from  car  to  car  in  order  to  reach  a  dining  or  smoking 
car.  The  carrier  is  bound  to  know  the  condition  of  the 
roadbed  and  guard  against  the  occurrence  of  such  extraor- 
dinary jerks  due  thereto,  but  the  pissenger,  being  ignorant  of 
that  condition,  is  not  bound  to  anticipate  them.  De  March!  t. 
Cent.  R.  R.  Co.,  321. 

13.  Damages — Decrease  in  earning  power — Evidence. 

The  income  or  profits  an  injured  person  derives  from  a  busi- 
ness personally  conducted  with  little  or  no  capital  and  depend- 
ing entirely  or  substantially  upon  his  individual  labor  and 
skill,  whether  physical  or  mental,  may  be  considered  as  afford- 
ing the  true  measure  of  his  earning  capacity;  but  income  or 
profits  derived  from  a  business  requiring  the  investment  of  sub- 
stantial capital  or  in  which  the  injured  person  is  engaged  with 
others  ,or  where  he  employs  the  labor  of  others,  cannot  be  ac- 
cepted as  a  measure  of  earning  capacity.  In  the  latter  case, 
the  measure  of  loss  is  the  value  of  plaintiff's  services  in  the 
business.  In  either  case,  inquiry  into  the  character  of  the 
business  is  necessary,  also  the  capital  and  assistance  em- 
ployed, and  if  the  case  falls  within  the  second  class  depreciation 
in  profits  is  properly  admitted  only  where  they  can  be  shown 
to  be  the  direct  result  of  plaintiff's  absence,  in  which  case  th^y 
are  received,  not  as  a  distinct  element  of  damage,  but  as  evi- 
dence of  the  value  of  plaintiff's  services. 

The  services  of  a  man  who  has  by  his  personal  labor,  skill  and 
business  ability,  built  up  and  managed  a  business  for  a  period 
of  years,  is  manifestly  worth  more  than  the  mere  cost  of  hiring 
another  temporarily  to  fill  his  place.  The  thorough  knowledge 
of  the  business  thus  acquired,  together  with  the  personal 
acquaintance  with  the  customers,  has  a  value  in  the  commercial 
world  readily  recognized  by  any  business  man.  This  being  so, 
there  is  no  valid  reason  why  one  responsible  for  an  injury 
should  be  heard  to  say  that  damages  based  upon  such  consider- 
ation are  merely  conjectural. 

Where  a  person  injured  was  engaged  in  the  business  of  sell- 
ing tea  and  coffee  from  a  store  where  he  employed  three  clerks, 
and  also  in  personally  driving  a  wagon  in  a  particular  territory 
from  which  he  sold  tea  and  coffee,  and  it  appears  that  during 
the  period  of  his  disability  he  employed  another  to  drive  his 


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NEGLIGENCE— conrtnu**. 

wagon  at  a  salary  of  fifteen  dollars  a  week,  but  that  his  profits 
fell  off  after  his  accident,  to  the  extent  of  $100  or  $125  a 
month,  such  falling  off  of  profits  is  not  the  measure  of  his  loss 
of  earning  power,  where  there  is  no  evidence  offered  to  nega- 
tive the  existence  of  other  possible  causes  for  the  depreciation 
of  earnings,  such  as  the  condition  of  the  market,  general 
labor  conditions,  prices  and  other  matters  which  might  tend 
to  cause  a  decrease  in  the  demand  for  the  particular  merchan- 
dise handled  by  plaintiff  in  his  business.  A  mere  personal  ex- 
pression of  opinion  by  the  plaintiff  that  the  falling  off  was 
due  to  his  personal  disability  by  reason  of  the  accident,  is  not 
sufficient    Demptey  ▼.  City  of  Seraatoa,  495. 

14.  Damages — Earning  power — Profits — Evidence. 

Profits  should  not  be  used  as  a  safe  guide  for  measuring 
earning  power,  although  they  may  indicate  the  possession  of 
business  ability  and  qualifications.  Strictly  speaking,  com- 
pensation for  the  loss  of  earning  power  as  far  as  possible 
should  be  limited  to  earnings  which  are  the  result  of  personal 
effort,  either  physical  or  mental,  in  which  profits  from  invested 
capital,  or  profits  from  the  labor  of  others  must  not  be  included. 

Where  it  is  impossible  in  a  business  enterprise  to  distinguish 
between  the  personal  earnings  of  the  individual  and  the  return 
from  the  capital  invested  and  the  labor  of  others,  the  net  in- 
come, or  net  results  from  such  business,  cannot  be  considered 
in  determining  the  amount  of  damages  to  which  the  claimant 
is  entitled.  But  where  the  predominating  factor  is  the  direct- 
ing intellectual  and  physical  labor  of  the  individual,  such  busi- 
ness may  be  characterized  as  personal  to  that  individual,  though 
others  with  tools  and  equipment  may  aid  in  the  work. 

The  question  is,  would  the  business  if  no  accident  had  oc- 
curred have  the  same  measure  of  success  it  always  had;  and 
would  that  success  continue  during  the  period  of  the  probable 
life  of  the  owner?  If  the  answer  is  in  the  affirmative,  then 
there  is  no  loss  on  that  account;  but,  if  in  the  negative,  since 
the  personal  equation  is  concerned,  the  uncertain  factors,  such 
as  business  depression,  market  conditions,  business  losses,  will 
not  be  sufficient  to  deprive  the  claimant  of  the  right  to  fair 
compensation  for  the  loss  of  earning  power  where  the  latter 
can  be  fairly  and  approximately  measured. 

Each  case  must  depend  on  the  nature  and  extent  of  the  busi- 
ness, the  amount  of  personal  direction  and  labor  to  be  engaged 
in  connection  therewith,  as  well  as  the  amount  of  capital  in- 
vested and  the  labor  employed. 


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INDEX.  646 

NEGLIGENCE— continued. 

The  effect  of  the  loss  of  the  individual's  services  to  the  busi- 
ness may  be  indicated  by  evidence  pointing  out  the  pecuniary 
loss  sustained  by  reason  of  the  absence  partial  or  total,  of  the 
personal  attention  and  labor  of  the  individual;  not  as  defi- 
nitely fixing  the  measure  to  value  the  earning  power,  but  as 
an  aid  to  the  jury,  after  considering  all  the  attendant  circum- 
stances involved  in  the  business  in  its  effort  to  determine  what 
the  measure  should  be.  Attention  may  be  called  to  all  the  de- 
pressing influences  to  which  a  business  is  subjected. 

If,  because  of  the  magnitude  and  complexity  of  the  business, 
or  through  death,  or  otherwise,  this  evidence  be  not  available, 
then  the  claimant  after  fully  describing  the  business,  and  the 
injured  person's  connection  therewith  should  be  permitted  to 
show  what  the  services  were  worth  if  employed  under  like 
circumstances  by  another  in  a  similar  capacity. 

While  the  evidence  to  show  the  pecuniary  loss,  or  the  effect 
of  the  absence  of  the  personal  attention,  need  not  be  clear  and 
indubitable,  it  should  not  be  a  mere  guess,  or  a  paper  loss;  it 
should  be  shown  to  exist  as  an  actual  loss;  and  this  evidence 
should  be  subject  to  criticism  from  him  who  must  pay  the  loss, 
to  the  end  that  the  pecuniary  loss  claimed  as  the  standard  should 
not  exceed  that  usually  paid  to  persons  performing  similar 
services  to  others.  A  person  who  has  personal  knowledge  of 
plaintiff's  business  and  of  the  manner  in  which  it  was  con- 
ducted, Mid  the  time  and  attention  given  to  it,  may  testify  as 
to  what  the  services  are  worth. 

We  do  not  wish  to  be  understood  as  holding  that  sums  given 
for  the  support  of  the  family  are  evidence  of  earning  power, 
but  where  a  sum  of  money  claimed  as  a  yearly  value  of  earning 
power  is  derived  from  a  business  from  which  the  claimant  - 
has  his  sole  source  of  income,  and  this  sum  represents  a  part  of 
the  net  earnings  which  were  produced  through  the  claimant's 
personal  direction  and  superintendency,  and  such  sum  is  not 
beyond  what  his  services  would  be  worth  if  he  were  employed 
by  another  in  like  capacity  in  the  same  business,  the  amount 
so  claimed  would  furnish  some  evidence  which  the  jury  might 
consider  in  fixing  the  value  of  earning  power.  That,  in  point 
of  fact  this  sum  was  given  to  the  deceased's  family  for  sup- 
port, is  not  material;  nor  is  it  material  that  a  minor  son  con- 
tributed to  the  business,  in  a  small  way,  and  was  not  paid  a 
salary  or  wage. 

In  an  action  by  a  wife  to  recover  damages  for  the  death  of 
her  husband  evidence  is  properly  admitted  to  show  earning 
power,  to  the  effect,  that  the  deceased  was  a  wagon  builder  and 


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646  INDEX. 

NEGLIGENCE— continued. 

blacksmith,  and  that  the  larger  part  of  his  business  was  repair 
work;  that  his  only  income  was  from  such  business;  that  he 
used  in  connection  with  the  business  certain  machinery  driven 
by  an  electric  motor,  the  current  of  which  was  purchased;  that 
the  deceased  worked  in  the  shop  like  any  other  employee,  and 
also  acted  as  a  superintendent  in  connection  with  the  general 
work;  that  he  had  the  assistance  of  his  minor  son  and  four  or 
five  employees ;  that  while  some  new  wagons  were  constructed 
they  were  sold  as  rapidly  as  built;  that  there  was  on  hand  at 
the  time  of  his  death  material  value  at  $2,200,  and  his  plant 
equipment  which  did  not  represent  an  investment  above  that 
figure;  and  that  out  of  the  income  he  gave  to  his  wife  ap- 
proximately $1,800  yearly  for  the  support  of  his  family.  Bax- 
ter v.  Pail*.  A  Beadia*  By.,  467. 

15.  Damages — Personal  injury — Decreased  earning  power — 
Person  engaged  in  a  small  business — Profits — Evidence. 

Evidence  of  earnings  from  a  small  business  in  which  the 
plaintiff  was  engaged  as  a  partner  before  and  after  the  accident, 
is  admissible  to  show  decreased  earning  power  as  the  result  of 
an  injury,  where  it  appears  that  the  business,  which  had  only 
a  nominal  capital,  required  plaintiff's  entire  time,  labor  and 
skill  and  had  no  earning  power  except  that  resulting  from 
profits  from  such  labor  and  skill,  since  in  no  other  way  could 
the  decreased  earning  power  be  shown.  Fabar  ▼.  Oiabtl 
Broa*  1. 

16.  Evidence — Cross-examination. 

In  a  negligence  case  a  nonsuit  is  properly  entered,  where  the 
only  witness  of  the  accident,  the  defendant's  driver,  is  called 
by  the  plaintiff  to  testify  to  certain  facts  relating  to  the  acci- 
dent, and  upon  cross-examination  by  defendant's  counsel  gives 
a  more  full  account  of  the  accident,  from  which  it  appears  that 
no  negligence  could  be  charged  upon  the  defendant.  Such 
cross-examination  is  entirely  proper.  Beibsteim  ▼•  Abbott's 
Alderaey  Dairies,  447. 

17.  Fall  of  stringer — Evidence. 

In  an  action  to  recover  damages  for  personal  injuries  judg- 
ment for  defendant  n.  o.  v.  is  properly  entered,  where  the  evi- 
dence shows  that  plaintiff,  while  working  as  an  employee  of  a 
contractor  on  the  premises  of  defendant,  was  hit  on  the  head  by 
a  falling  stringer,  without  any  evidence  as  to  what  caused  its 
f  alL    Lain*  ▼•  Bemiagton.  Arms  Co*  180. 

18.  Landlord  and  tenant  —  Stairway — Cause  of  action— 
Pleading — Demurrer. 


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INDEX.  647 

NEGLIGENCE— continued. 

In  an  action  to  recover  damages  for  personal  injuries,  the 
statement  of  claim  averred  that  the  defendant  was  a  lessee  of 
a  building  used  for  business  purposes,  and  that  all  the  rooms 
were  sublet  to  several  tenants  occupying  them;  that  a  way  of 
access  to  the  upper  floors  was  provided  by  an  entrance  from  the 
front  by  a  passage  between  two  of  the  stores  on  the  street, 
leading  into  an  open  area  way  where  there  was  a  stairway  to 
the  upper  floors;  that  a  tenant  of  one  of  the  stores,  by  per- 
mission of  defendant,  constructed  a  stairway  from  the  area 
to  the  cellar  underneath  his  store  for  his  convenience,  closing 
it,  however,  against  general  use  by  a  door  in  the  area  thus 
shutting  it  off;  that  about  six  o'clock  of  a  February  evening, 
plaintiff  having  an  occasion  to  visit  a  tenant  on  the  second  floor 
entered  the  open  area,  and  in  attempting  to  And  the  stairway 
leading  up,  was  misled  by  a  light  above  the  transom  of  the 
door  leading  into  the  cellarway,  entered  this  and  fell  down  the 
stairs  and  was  injured.  The  statement  did  not  show  the  rela- 
tive position  of  the  two  stairways,  or  the  character  of  the  door 
to  the  cellarway,  or  whether  there  was  a  door  to  the  other  stair- 
way. There  was  no  averment  that  the  entrance  to  the  cellar- 
way  was  improperly  located,  designed  or  constructed.  Held, 
(1)  that  defendant  was  not  responsible  for  the  accident;  (2) 
that  there  was  no  duty  upon  him  to  maintain  a  danger  sign,  as 
he  was  out  of  possession;  (3)  that  the  averments  of  the  state- 
ment showed  no  cause  of  action  and  (4)  that  judgment  was 
properly  entered  for  defendant  on  an  affidavit  of  defense  in  the 
nature  of  a  demurrer.  Boraua  t.  United  If.  R.  &  Imp.  G<k» 
156. 

19.  Master  and  servant — Contributory  negligence. 

Where  a  workman  uses  in  his  work  a  ladder  properly  fitted 
with  brads  and  spikes  upon  one  side,  which  prevent  it  from 
slipping,  when  it  is  properly  placed  with  its  spiked  side  under- 
neath, and  he  leaves  the  ladder  one  evening  properly  placed, 
with  the  intention  of  using  it  on  the  following  morning,  but 
during  the  night  the  ladder  is  used  by  some  other  person,  who 
in  replacing  it,  turns  the  wrong  side  of  the  ladder  to  the  wall, 
and  the  workman  on  the  following  morning  proceeds  to  use  it, 
without  any  inspection  whatever,  and  the  ladder  slips  from 
under  him,  and  he  is  injured,  he  is  guilty  of  contributory  negli- 
gence, and  cannot  recover  damages  from  his  employer  for  his 
injuries.    Finan  t.  E.  T.  Mason  Co.,  394. 

20.  Master  and  servant — Fall  of  grit  or  dust  from  ceiling — 
Continuing  work — Relying  on  promise  of  employer — Risk  of 
employment — Allegata  et  probata — Guessing  at  cause  of  acci- 
dent — Nonsuit 


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648  INDEX. 

NEGLIGENCE— continued. 

In  an  action  by  an  employee  against  her  employer  to  recover 
damages  for  injuries  to  her  eyes  from  the  fall  of  grit  or  dust 
from  the  ceiling  in  the  room  where  she  was  employed,  a  non- 
suit is  properly  entered,  where  plaintiff  testifies  that  the  grit 
or  dust  fell  immediately  after  a  crash  in  the  floor  above,  with- 
out any  proof  whatever  as  to  who  or  what  caused  the  crash, 
or  even  that  the  floor  above  was  under  the  control  of  the  de- 
fendant. 

In  such  a  case  where  plaintiff  testifies  that  two  crashes  oc- 
curred on  the  floor  above  on  the  same  day  and  prior  to  the  one 
which  dislodged  the  dust,  and  that  she  had  complained  to 
the  foreman  about  it,  she  cannot  recover,  if  she  fails  both  in 
her  pleadings  and  in  her  proof,  to  show  that  she  continued  to 
work  in  reliance  upon  any  promise  made  to  her  upon  her  com- 
plaint   Ellett  t.  Lit  Bros.,  185. 

21.  Master  and  servant — Improper  tools — Complaint  as  to 
tools — Relying  on  master's  judgment — Obvious  danger — Fail- 
ure to  instruct — Case  for  jury. 

While  an  employee  assumes  all  obvious  risks  incident  to  his 
employment,  if  the  work  or  appliance  is  not  imminently  or  in- 
evitably dangerous,  his  dependent  position  will  be  taken  into 
consideration,  and,  if  given  positive  orders  to  proceed  with  his 
work,  when  complaint  is  made  as  to  the  defective  and  unsafe 
condition  of  tools  or  appliances,  he  is  not  bound  to  set  up  his 
judgment  against  that  of  his  superior,  but  may  rely  on  the 
assurance  of  the  latter  that  there  is  no  danger. 

A  master  is  presumed  to  know  the  probable  results  from  the 
use,  by  an  uninstructed  workman,  of  unfit  tools  in  work  that 
is  likely  to  cause  an  accident,  and  when  he  knows  or  should 
know  their  condition,  he  will  be  responsible  for  injury  result- 
ing. 

In  an  action  by  an  employee  of  an  oil  refining  company  to 
recover  damages  for  personal  injuries,  a  judgment  on  a  verdict 
or  plaintiff  will  be  sustained,  where  the  evidence  shows  that 
plaintiff  was  employed  as  an  unskilled  laborer  loading  barrels 
on  steamers,  that  he  was  ordered  from  his  work,  and  directed 
to  knock  iron  hoops  from  barrels;  that  this  work  required 
some  skill,  and  was  the  work  of  a  cooper;  that  he  was  given  no 
instruction;  that  in  using  a  hammer  in  this  work,  he  found 
that  it  was  defective,  and  complained  to  the  foreman;  that  the 
latter  said  "you  will  have  to  use  it;  that  is  all  we  got  at  this 
time";  and  that  afterwards,  in  striking  with  the  hammer,  a 
piece  of  steel  was  knocked  off  a  hoop,  and  imbedded  itself  in 


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NEGLIGENCE— continued. 

plaintiff's  eye,  destroying  the  sight.  MeGratk  t.  Atlamtie 
Refining  Co.,  341. 

22.  Master  and  servant — Safe  place  to  work — Case  for  jury. 
Where,  in  a  negligence  case,  it  appears  that  the  plaintiff  was 

a  molder's  assistant,  and  that  he  was  injured  hy  a  ladel  con- 
taining molten  metal  carried  by  a  fellow  workman  colliding 
with  him,  the  case  is  for  the  jury,  where  the  negligence 
charged,  was  the  narrowness  of  an  alleyway  in  which  the  men 
were  working,  and  the  proof  was,  that  in  the  view  of  its  nar- 
rowness, the  alleyway  was  not  a  reasonably  safe  place  in  which 
the  men  were  compelled  to  perform  their  duties.  Coppola  t. 
Sehaum,  38. 

23.  Master  and  servant — Safe  place  to  work — Scaffolding — 
Insecure  guard  rati. 

Where  the  superintendent  of  a  building  contractor,  erects  a 
scaffold  upon  which  the  workmen  must  stand  at  their  work, 
and  attaches  to  the  scaffold  a  handrail  in  an  insecure  manner, 
but  in  such  a  way  that  the  insecure  construction  is  not  obvious, 
a  workman,  who  without  knowledge  of  the  defect,  grasps  the 
rail  when  the  scaffold  lurches  from  some  unknown  cause,  and 
is  thrown  by  the  rail  giving  way,  may  recover  damages  from 
his  employer  for  injuries  which  he  sustained  by  the  fall. 

In  such  a  case  the  duty  devolved  upon  the  master  to  furnish 
a  reasonably  safe  place  to  work,  and  the  superintendent  merely 
took  the  master's  place  in  the  performance  of  the  duty. 

Where  a  scaffold  is  unsafe  because  of  one  or  more  of  three 
reasons,  it  is  immaterial  whether  it  is  unsafe  through  faulty 
or  unsuitable  material,  or  in  its  construction.  ReiUy  v.  ReiUy, 
103. 

24.  Master  and  servant — Safe  place  to  work — Reliance  on 
employer's  judgment — Proximate  cause — Pleading — Plaintiff's 
statement. 

A  master  is  not  required  to  furnish  a  servant  with  a  safe 
place  to  work  where  the  latter  is  employed  for  the  express  pur- 
pose of  assisting  in  the  repair,  demolition  or  alteration  of  a 
property  partially  destroyed  by  fire,  or  is  engaged  for  the 
purpose  of  making  a  dangerous  place  safe. 

In  such  case  an  employee  who  claims  he  assumed  the  risk 
because  told  by  the  employer  or  his  vice-principal  that  the 
place  was  safe,  must  aver  and  prove  in  what  respect  the  place 
was  dangerous,  that  he  acted  in  reliance  upon  the  statement 
that  it  was  safe,  and  that  he  was  injured  by  reason  of  the 
danger  to  which  he  had  thus  called  attention.  Searles  t. 
Boone,  464. 


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660  INDEX. 

NEGLIGENCE— continued. 

25.  Presumption — Common  carrier — Means  of  transporta- 
tion— Appliances — Injury  to  passenger. 

A  presumption  of  negligence  arises  against  a  common  car- 
rier where  a  passenger  is  injured  by  reason  of  defective  ap- 
pliances or  lack  of  appliances,  or  by  something  appertaining 
to  the  means  of  transportation.  DeMarehi  t.  Central  B.  B. 
Con  321. 

26.  Proximate  cause — Hole  in  street — Breaking  of  wagon 
axle — Injury  to  pedestrian  by  being  struck  by  wagon  wheel. 

The  question,  whether  a  hole  in  a  city  9treet  was  the  proxi- 
mate cause  of  injury  to  a  pedestrian  caused  by  being  struck 
by  a  wagon  wheel,  which  broke  off  the  axle  and  rolled  upon 
the  sidewalk,  when  the  wagon  struck  the  hole  in  the  street,  is 
for  the  jury.    Henry  t.  Philadelphia,  33. 

27.  Railroads — Death  at  crossing — Photograph. 

On  the  trial  of  an  action  to  recover  damages  for  the  death 
of  plaintiff's  husband  at  a  railroad  crossing,  photographs  in 
evidence  showing  a  view  of  the  crossing  on  a  clear  day,  are 
not  conclusive  of  the  distance  which  could  be  seen  along  the 
tracks,  if  it  appears  that  the  accident  occurred  in  the  evening 
at  dusk,  and  that  a  view  along  the  tracks  at  the  time  could  not 
be  obtained  for  more  than  several  hundred  feet  Baxter  v. 
Philadelphia  *  Beading  By.  Oo„  467. 

28.  Railroads  —  Foreman  of  independent  contractor — Con- 
tributory negligence — Death. 

In  an  action  against  a  railroad  company,  to  recover  damages 
for  the  death  of  a  foreman  of  an  independent  contractor  run 
down  by  a  train  on  an  elevated  structure  of  the  railroad  com- 
pany, no  recovery  can  be  had,  where  it  appears,  that  the  duty 
of  the  deceased  was  to  oversee  three  or  four  gangs  of  riveters 
working  at  different  places  underneath  the  level  of  the  tracks ; 
that  in  going  to  the  points  where  the  men  were  working,  he 
could  walk  along  a  boardwalk  parallel  with  the  tracks,  or  could 
walk  on  the  tracks  or  could  cross  the  tracks;  that  he  had  been 
engaged  in.  this  work  for  three  or  four  months ;  that  on  the 
night  of  the  accident  he  was  walking  along  the  boardwalk,  at  a 
point  where  the  planks  for  a  short  distance  had  been  torn  up 
and  a  plank  had  been  placed  along  the  nearest  rail;  that  he 
could  pass  around  the  obstruction  by  using  the  plank;  that 
as  he  was  about  to  step  down  from  the  boardwalk  to  the  plank, 
or,  as  he  was  leaning  over  the  side  of  the  boardwalk,  he  was 
struck  by  the  head  of  an  approaching  engine,  with  light  burn- 
ing and  bell  ringing. 


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INDEX.  .  661 

NEGLIGENCE— continued. 

In  such  a  case  the  deceased  was  not  so  absorbed  or  taken  up 
with  his  work,  at  the  time  of  the  accident  as  to  relieve  him 
from  the  duty  of  looking  out  for  his  own  safety. 

Van  Zant  v.  P.  B.  &  W.  K.  K.,  248  Pa.  276,  distinguished. 
Sweatm*n  t.  Pemuu  R.  R.  Oo*,  286. 

29.  Railroads — Infant — Trespasser  on  cars. 

In  an  action  by  a  boy  nine  years  old  against  a  railroad  com- 
pany to  recover  for  personal  injuries,  the  case  is  for  the  jury 
where  the  evidence  for  plaintiff  tends  to  show  that  at  the  time 
of  the  accident,  the  boy  crossed  the  railroad  tracks  to  see  his 
father;  that  in  returning,  he  climbed  on  top  of  a  car  in  a 
train,  with  the  intention  of  passing  over  it,  to  reach  his  home; 
that  as  he  reached  the  end  of  the  car,  a  man  dressed  as  a 
brakeman,  with  overalls,  cap,  carrying  a  brake  stick  and  brake- 
man's  lantern,  appeared  at  the  other  end  of  the  same  car; 
that  the  car  started  to  move  with  the  boy  on  it,  holding  fast, 
when  a  brakeman  on  the  same  car  ordered  him  from  the  train; 
that  the  brakeman  threw  a  piece  of  coal  at  the  lad,  striking 
him  on  the  back,  and  called  him  vile  names;  that  the  scared 
boy  was  in  the  act  of  getting  down,  when  the  coal  struck  him; 
and  that  at  about  the  same  time  the  car  gave  a  bump  and  he 
fell  on  the  tracks  and  was  injured. 

The  evidence  was  sufficient  to  sustain  an  affirmative  finding 
that  the  man  who  chased  the  boy  from  the  train  was  an  em- 
ployee of  the  defendant,  and  that  his  acts  were  within  the 
scope  of  his  employment,  and  the  proximate  cause  of  the  acci- 
dent. 

In  such  a  case  it  is  not  essential  to  recover  that  there  be 
present  elements  of  recklessness  or  gross  negligence.  Proof  of 
what  under  ordinary  circumstances  might  be  termed  "mere 
negligence"  is  enough.  Miante  t.  Phil*.  A  Reading  Ry. 
Co*  93. 

30.  Railroads — Infant  trespasser — Frightening  hoy  from  car 
— Proximate  cause — Concurrent  causes — Res  gestae — Pleading 
— Allegata  and  probata — Nonsuit. 

In  an  action  by  a  boy  eleven  years  old  against  a  railroad 
company  for  damages  for  personal  injuries,  where  the  state- 
ment of  claim  avers  that  while  the  plaintiff  was  on  a  car  of 
the  defendant,  employees  of  the  defendant  "carelessly  and 
negligently  set  the  said  car  in  motion,  causing  and  requiring 
plaintiff  to  leave  the  car  while  in  motion,  in  consequence  of 
which  he  was  thrown  from  his  position"  and  injured,  it  is  re- 
versible error  for  the  court  to  exclude  evidence  to  the  effect  that 
a  brakeman,  who  saw  plaintiff  get  on  the  car,  approached  him 
from  another  car  immediately  after  the  car  had  started  by  a 


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652  INDEX 

NEGLIGENCE— ooniinued. 

signal  from  the  brakeman,  and  by  threatening  gestures,  with 
a  club  in  his  hand,  frightened  him  off;  and  it  is  also  error  to 
enter  a  nonsuit. 

The  manner  in  which  plaintiff  was  required  to  get  off  the 
car  was  part  of  the  res  gestae  and  plaintiff  was  not  required  to 
set  it  forth  in  his  pleadings. 

The  signal  given  to  start  the  train,  when  the  brakeman, 
who  gave  it,  knew  that  the  boy  was  on  one  of  the  cars,  was 
itself  a  negligent  act;  but  the  starting  of  the  car  was  not  in 
itself  what  caused  the  injury,  the  starting  of  the  car  and  the 
frightening  of  the  boy  from  it  were  concurrent  causes  of  the 
injury,  so  averred  in  the  statement  of  claim. 

In  such  a  case,  as  the  pleadings  were  sufficient  to  justify  the 
admission  of  the  excluded  testimony,  and  to  sustain  a  verdict 
for  plaintiffs,  the  case  ought  not  to  have  been  taken  from  the 
jury.    Terletski  t.  Phila.  *  Reading  Ry.  Go*,  35. 

31.  Railroads — Passenger— Presumption  from  break  in  de- 
fendant's appliance — Evidence. 

Where  a  passenger  on  a  train  is  hit  by  an  iron  washer, 
coming  through  a  window  and  injuring  him,  he  may  recover  a 
verdict  against  the  railroad  company,  where  he  testifies  that 
the  washer  came  from  an  engine  of  another  train,  marked  with 
defendant's  name,  going  in  the  opposite  direction  on  the  next 
track,  and  the  washer  is  identified  by  two  other  witnesses,  one, 
the  conductor  of  the  train,  as  being  the  type  used  on  the  en- 
gines of  the  company. 

Such  evidence  is  sufficient  to  sustain  a  finding  that  plaintiff's 
injury  resulted  from  a  break  in  an  appliance  connected  with 
the  operation  of  defendant's  railroad;  hence  the  question  of 
negligence  is  for  the  jury,  on  the  presumption  arising  from 
the  break  in  defendant's  appliance.  DeRouvier  t.  Pnsa. 
R.  R.  Co.,  443. 

32.  Railroads — Position  of  peril — Sudden  emergency — Sol- 
dier on  guard  at  bridge — Contributory  negligence. 

A  soldier  appointed  to  guard  a  railroad  bridge  will  not  be 
held  guilty  of  contributory  negligence  as  a  matter  of  law,  if 
that  which  is  charged  as  negligence  was  done  in  obedience  to 
the  general  orders  of  his  superior  officer,  and  the  defendant 
railroad  company,  whose  bridge  was  being  guarded,  had  knowl- 
edge of,  or  upon  inquiry  could  have  ascertained  what  those 
orders  were. 

One  properly  upon  the  tracks  of  a  railroad  company  has  the 
right  to  assume  it  will  exercise  the  utmost  care  to  avoid  in- 
juring him,  and  cannot  be  held  guilty  of  contributory  negli- 


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NEGLIGENCE— continued. 

gence  as  a  matter  of  law  because  he  did  not  anticipate  a  neglect 
of  duty  upon  its  part 

One  who  without  fault  is  placed  in  imminent  peril  by  an- 
other, is  not  chargeable  with  contributory  negligence  because 
in  the  brief  time  in  which  he  had  to  both  decide  and  act,  he 
did  not  select  the  best  course  to  escape  the  threatened  injury. 
Kelly  t.  Pemna*  B.  R.  Oo„  426. 

33.  Street  railways — Collision  of  car  with  wagon — Speed — 
Pleadings — Declaration. 

In  an  action  to  recover  damages  for  personal  injuries  caused 
by  a  collision  between  defendant's  car,  and  a  wagon  which 
plaintiff  was  driving,  where  the  defendant's  evidence  was  in 
effect  that  the  plaintiff's  horse  without  warning  suddenly 
"wheeled  around"  bringing  the  wagon  directly  in  front  of  the 
moving  car,  and  that  the  car  stopped  almost  immediately  after 
the  impact,  this  latter  fact  not  being  denied  by  plaintiff,  and 
undue  speed  not  being  alleged  in  his  declaration  or  properly 
shown,  the  prior  speed  of  the  car,  in  determining  the  question 
of  defendant's  alleged  negligence,  is  of  no  importance.  Gor- 
don v.  Phil*.  R.  T.  Co.,  461. 

34.  Street  railways — Collision — Crossing — Contributory  neg- 
ligence— Nonsuit. 

In  an  action  against  a  street  railway  company  to  recover 
damages  for  death  of  plaintiff's  husband  caused  by  a  collision, 
at  a  crossing,  between  an  electric  car  and  a  drill  the  deceased 
was  driving,  a  nonsuit  is  properly  entered  where  the  only 
witness  who  saw  the  accident,  testified  that  the  deceased  re- 
mained seated  on  the  drill  in  the  rear  of  his  team,  apparently 
in  deep  study,  neither  looking  for  a  car,  nor  heeding  its  whistle, 
which  the  witness  distinctly  heard,  though  she  was  much  fur- 
ther from  the  car  than  the  deceased;  and  the  other  testimony 
in  the  case  was  wholly  inadequate  to  permit  a  determination 
as  to  whether  there  was  apparent  time  for  the  deceased  to  cross 
ahead  of  the  car.  There  is  no  presumption  that  deceased  saw 
the  car  coming  at  such  distance  from  the  crossing  as  to  warrant 
him  in  the  belief  that  he  could  safely  cross  ahead  of  it.  Boyden 
t.  Phil*,  A  West  Chester  Traction  Co.,  137. 

NEW  TRIAL. 

1.  Criminal  law — Murder—Evidence — Weapon  —  Declara- 
tions of  deceased — Degrees  —  Charge  —  Abstract  question  — 
Character— Charge  as  to  law — Presence  of  defendant  in  court 
— Assignments  of  errors-Practice,  Supreme  Court.  Com.  t. 
Bedmordkl,  124. 


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NEW  TRIAL— continue d. 

2.  Practice,  Supreme  Court — Assignments  of  error — Ap- 
peals.   Walteoma  r.  PnJladelaaia,  277. 

8.  Practice,  Supreme  Court — Appeals — Assignments  of  error 
— Motion  for  judgment  n.  o.  v. — Withdrawal  of  motion.  In- 
teraatieaal  Forge  Co.  t.  Pail  ft.  Bee roe  Co*  481. 

NONSUIT. 

1.  Negligence — Master  and  servant — Fall  of  grit  or  dust 
from  ceiling — Continuing  work — Bisk  of  employment — Alle- 
gata et  probata — Guessing  at  cause  of  accident.  Ellett  t.  Lit 
Broftn  186. 

2.  Negligence — Railroads — Infant  trespasser — Frightening 
boy  from  car — Proximate  cause  —  Concurrent  causes  —  Res 
gestm — Pleading — Allegata  and  probata.  Terletaki  t.  Pkila. 
*  Reading  By.,  85. 

8.  Negligence — Street  railways — Collision — Crossing — Con- 
tributary  negligence.  Boydem  t.  Paila.  Sb  West  Gkeeter 
Traetiom  Co*  187. 

NOTICE. 

1.  Contract — Sale — Warranty  —  Acceptance  and  implied 
warranty — Goods  not  ordered — Measure  of  damages.  8an\nel 
r.  Del.  RlTor  Steel  Co*  190. 

2.  Insurance — Life  insurance — Loan — Payment — Forfeiture* 
Carter  r.  Metropolitan  Life  las.  Co*,  505. 

NUISANCE. 

1.  Deeds — Building  restrictions — Offensive  business — Public 
garage — Equity — Injunction — Laches — Delay.     Heal 
dell,  516. 

OFFICERS. 

1.  Corporations  —  Gifts   or   bribes — Directors. 
Guard  t.  Beajaam,  897. 


ORPHANS'  COURT. 

1.  Executors  and  administrators — Liability  for  loss  of  a  re- 
tail liquor  business — Findings  of  fact — Review  on  appeal — 
Surcharge  of  executor — Advice  of  counsel.  Muraagkaa's  Est. 
(Wo.  1),  520. 

PARTIES. 

1.  Equity — Title — Will— Presumption  — Jurisdiction— Dis- 
missal of  bill  without  prejudice.    Oral*  t.  Craig,  880. 

2.  Bes  judicata  —  Corporation  —  Stockholder. 
Seandiaaria  Beltiag  Co.,  SSL 


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PARTIES— continued. 

3.  Wills — Deeds — Power— -Execution  of  power — Intention. 
Penna.  Co.  for  Ins.  on  Lire*,  etc,  Account,  433. 

PAKTITION. 

1.  Land  tn  ko  counties — Jurisdiction — Averments  of  bill — 
Amendment — Act  of  February  SO,  185k,  P.  L.  89 — Appearance 
—Practice,  C.  P. 

A  bill  in  equity  for  the  partition  of  land  lying  in  two  coun- 
ties filed  in  the  county  in  which  "the  larger  part  of  the  estate 
in  value  is  situated,"  but  not  containing  an  averment  showing 
conditions  of  fact  required  by  the  Act  of  February  20,  1854, 
P.  L.  89,  that  the  land  was  so  situated,  may  be  amended  to  con- 
form to  the  act  although  before  the  amendment  is  allowed,  a 
petition  for  partition  is  filed  in  the  orphans9  court  of  the  coun- 
ty in  which  the  smaller  part  of  the  land  is  situated. 

In  such  a  case,  as  the  court  had  jurisdiction,  and  the  amend- 
ment did  not  change  the  cause  of  action,  or  prejudice  defend- 
ants, the  amendment  when  made  becomes  a  part  of  the  bill,  as 
if  originally  inserted  therein.  The  jurisdiction  was  therefore 
not  in  any  way  ousted  by  the  proceeding  in  the  other  county. 

An  entry  of  a  general  appearance  for  defendants,  in  such  a 
case,  placed  them  in  such  a  position  that  they  could  not  enter 
pleas  in  bar  to  the  suit,  upon  the  ground  of  a  lack  of  the  statu- 
tory averment.    Kevin  t.  Catanaoh,  525. 

PARTNERSHIP. 

1.  Bill  in  equity  for  an  accounting — Exceptions — Failure  to 
specify  any  particular  error — Dismissal. 

Exceptions  to  a  partnership  account  were  properly  dismissed 
where  they  were  vague  and  indefinite  and  failed  to  specify  any 
particular  error  or  errors  in  the  account.  Flsaman  ▼.  Brown, 
25. 

PASSENGER,  see  Negligence. 

1.  Negligence — Railroads — Presumption  from  break  in  de- 
fendant's appliance — Evidence.  DeBonvier  t.  Penna.  B.  B. 
Co.,  443. 

PAYMENT. 

1.  Attachment  execution — Settlement  of  accounts — Evidence 
— Overpayment.  American  Surety  Co*  of  H.  Y.  ▼•  Vanda- 
grlft  Construction  Co*,  193. 


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656  INDEX. 

PEDESTRIAN. 

1.  Negligence  —  Automobile  —  Children  crossing  street  — 
Speed.    MeMUlem  t.  Stratkjuaa,  13. 

2.  Negligence — Automobiles  —  Street  crossing  —  Looking — 
Contributory  negligence — Case  for  jury.  Healy  t.  Shedaker, 
512. 

3.  Negligence — City  streets — Automobile — Duty  to  look  be* 
hind.    Laatoat  t.  Adaam  Ejtpre—  Co*  17. 

PENALTIES. 

1.  Municipalities — Municipal  contracts  —  Liquidated  dam* 
ages — Contracts — Arbitration.    Cmrram  t.  Phil*.,  111. 

2.  Municipalities — Municipal  contracts  —  Liquidated  dam- 
ages— Municipal  contracts.    Carraa  t.  Fkila.,  111. 

PHOTOGRAPH. 

1.  Negligence — Railroads — Death  at  crossing.  Baxter  ▼• 
Phil*.  *  Reading  Ry.  Co.,  467. 

PLEADING,  see  Practice,  C.  P. 

1.  Contract  to  organize  corporation — Writing  —  Oral  trans- 
fer  of  stock — Time  —  Consideration — Services — Time  of  ren- 
dering— Notice  to  perform  agreement. 

A  counterclaim  for  damages  for  failure  of  plaintiff  to  com- 
ply with  an  agreement  to  transfer  all  business  assets  to  a  cor- 
poration to  be  thereafter  formed  and  to  transfer  twenty-five  per 
cent  of  the  capital  stock  to  the  defendant  for  services  per- 
formed under  it,  is  insufficiently  pleaded  where  it  does  not 
specify  whether  the  contract  was  oral  or  in  writing,  nor  aver 
when  the  services  were  performed,  nor  when  the  corporation 
was  to  be  formed,  nor  that  a  reasonable  time  had  elapsed  in 
which  to  organize,  nor  that  the  plaintiff  had  been  notified  to 
proceed  to  perfect  his  part  of  the  agreement.  Gnaraaty  M. 
Co*  t.  Hndf ord  P.  S.  Co*.  557. 

2.  Counterclaim — Sufficiency — Damages — Breach  of  con- 
tract to  furnish  goods  for  resale — Time  for  delivery — Sales — 
Anticipated  profits. 

A  counterclaim  should  be  set  forth  with  as  much  precision 
and  exactness  as  is  required  in  the  statement  of  a  cause  of 
action  upon  which  proceedings  are  instituted. 

A  counterclaim  for  damages  resulting  from  the  breach  of 
oral  agreements  to  furnish  certain  automobile  units,  is  not 
sufficiently  pleaded,  where  there  is  no  averment  specifying  the 
time  within  which  they  were  to  be  furnished,  nor  an  averment 
that  the  plaintiff  knew  that  they  were  for  immediate  use,  nor 
that  any  sales  of  the  units  had  been  made,  nor  any  contracts  in 


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PLEADING— continued. 

existence  relating  to  them,  nor  anything  averred  which  would 
require  the  plaintiff  to  furnish  them  before  the  alleged  default, 
it  appearing  that  the  contracts  to  furnish  the  units  did  not 
expire  until  eight  months  after  that  time.  A  statement  that 
the  defendant  would  have  been  able  to  sell  the  units,  is  merely 
an  expression  of  hope  and  expectation. 

A  counterclaim  for  damages  for  breach  of  a  contract  to  fur- 
nish goods  for  resale  is  not  sufficiently  pleaded,  where  it  sets 
forth  no  facts  from  which  loss  or  anticipated  profits  could  be 
reasonably  ascertained,  even  if  they  could  be  recovered.  Guar- 
anty Motors  Co.  t.  Hndf  ord  Phila.  Sales  Go*,  567. 

3.  Counterclaim — Unpaid  salary — Wrongful  discharge — 
Tender  of  performance  after  discharge. 

A  counterclaim  for  salary  after  discharge  from  employment, 
which  merely  avers  employment,  discharge,  and  balance  due  is 
insufficiently  pleaded  for  failure  to  aver  wrongful  discharge, 
tender  of  performance  after  discharge,  and  in  what  manner 
the  salary  was  to  be  paid,  whether  monthly,  quarterly  or  an- 
nually.   Guaranty  M.  Go.  t.  Hndford  P.  8.  Co*,  557. 

4.  Negligence — Landlord  and  tenant — Stairway — Cause  of 
action — Demurrer.  Bornum  t.  United  Merchants  Realty  4c 
Imp.  Co.,  156. 

5.  Negligence  —  Street  railways  —  Collision  of  car  with 
wagon  —  Speed  —  Declarations.  Gordon  t.  Phila.  Rapid 
Transit  Co*  461. 

PRACTICE,  C.  P. 

1.  Affidavit  of  defense— Averments  to  be  taken  as  true. 
The  averments  of  an  affidavit  of  defense  are  to  be  taken  as 

true,  and  the  defendant  is  not  required  to  set  forth  the  manner 
in  which  they  will  be  proved,  nor  the  evidence  by  which  they 
will  be  substantiated.  Lackawanna  Tmst  Co.  ▼.  Carlneei, 
226. 

2.  Affidavit  of  defense — Sufficiency  —  Vague  and  indefinite 
averments  —  Action  for  purchase  price  —  Failure  to  deliver 
article  contracted  for — Contract — Certificate  of  architect. 

In  an  action  for  balance  of  purchase  price  of  water  soften- 
ing filter  plant  which  the  plaintiff  delivered  under  a  contract 
which  merely  called  for  a  filter  seven  feet  six  inches  inside 
diameter  and  sixteen  feet  high  with  a  capacity  of  100,000 
gallons  in  twelve  hours,  an  affidavit  of  defense  is  insufficient, 
quired  dimensions  of  sixteen  feet  from  the  "bottom  to  the  top 
of  the  swell"  and  instead  delivered  one  of  a  different  capacity 

Vol.  cclxiv — 42 

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658  INDEX. 

PRACTICE,  0.  P.— continued. 

and  size,  namely,  14  feet  3  1-8  inches  "outside  height  from 
the  bottom  to  the  top  of  the  swell  of  the  top  and  bottom" 
without  any  averment  that  in  the  trade  a  16-foot  filter  meant 
16  feet  from  the  ''bottom  to  the  top  of  the  swell"  and  without 
averment  as  to  the  inside  diameter,  nor  an  averment  that  the 
filter  did  not  have  a  capacity  of  100,000  gallons  in  twelve  hours 
as  provided  in  the  contract. 

Where  the  purchase  price  became  due  absolutely  by  the  terms 
of  the  contract  within  a  stated  time  after  delivery  of  the  ma- 
terials, it  seems  that  defendant  would  not  be  relieved  of  his 
obligations  to  pay  by  the  absence  of  an  architect's  certificate, 
if  the  architect  was  no  longer  in  defendant's  employ.  Per- 
mmtlt  r.  Wallace,  9. 

3.  Affidavit  of  defense— Waiver— Set-off — Reply — Admis- 
sions—Appeals— Act  of  Map  U,  1915,  P.  L.  kSS. 

The  right  to  enter  a  rule  for  judgment  for  want  of  a  suf- 
ficient affidavit  of  defense,  will  not  be  held  to  be  waived  be- 
cause of  plaintiff's  having  further  proceeded  in  the  cause  in 
compliance  with  the  requirements  of  an  act  of  assembly  or  rule 
of  court. 

Plaintiff  may  enter  a  rule  for  judgment  for  want  of  a  suffi- 
cient affidavit  of  defense  even  though  he  has  filed  a  reply  to 
defendant's  claim  of  set-off. 

Under  Sections  6  and  16  of  the  Act  of  May  14,  1915,  P.  L. 
483,  the  undisputed  facts  appearing  by  the  pleadings  are 
admitted  for  all  the  purposes  of  the  case,  with  the  same  effect 
as  if  they  were  embodied  in  the  statement  of  claim  itself. 

Hence,  on  a  rule  for  judgment  for  want  of  a  sufficient  affi- 
davit of  defense  the  admissions  of  plaintiff's  reply  will  be  con- 
sidered. 

It  is  only  in  clear  cases  that  this  court  will  reverse  the  court 
below  on  appeal  from  an  order  discharging  a  rule  for  judg- 
ment for  want  of  a  sufficient  affidavit  of  defense. 

4.  Contracts — Written  contract — Omission — Evidence — 
Fraud,  etc. — Pleadings  and  proofs — Agency — Authority — War* 
ranties. 

A  written  contract  presumably  expresses  the  full  and  exact 
agreement  of  the  parties  in  regard  thereto,  and  hence  ordinarily 
great  strictness  of  pleading  and  proof  are  required  where  it  is 
admitted  to  modify  or  reform  the  writing. 

But  where  admittedly  the  writing  does  not  fully  express  the 
agreement  of  the  parties  in  regard  to  the  matter  under  con- 
sideration, the  same  strictness  of  pleading  and  proof  are  not 
required. 


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PEAOTIOE,  0.  P.— continued. 

It  is  not  necessary  to  aver  or  prove  that  something  was  omit- 
ted from  a  written  instrument  by  fraud,  accident  or  mistake, 
where  the  only  claim  is  that  it  is  attempted  to  be  used  in 
violation  of  an  express  agreement  made  to  induce  the  party 
to  sign  it. 

A  party  cannot  enforce  a  contract  induced  by  warranties,  and 
deny  the  authority  of  his  agent  to  make  them.  Iron  Sb  Glass 
D.  ft.  B.  t.  Wlgntan,  146. 

5.  Charge — Paints — Evidence. 

A  point  for  charge  is  properly  refused  where  neither  the  evi- 
dence produced,  nor  that  tendered,  sustains  the  facts  set  forth 
in  the  point.  Am,  ft.  06.  of  H.  Y.  t.  Vandegrlf t  Construc- 
tion Co*,  193. 

6.  Evidence — Court  records.    Searles  v.  Boorso,  454. 

7.  Foreign  attachment — Amendments — Parties — Dissolution. 
Bergman  t.  Straus,  439. 

8.  New  trial — Discretion — Avoidance  of  injustice — Review 
— Supreme  Court. 

The  appellate  court  will  not  review  the  discretion  of  the 
trial  court  in  granting  a  new  trial,  where  it  appears  that  the 
court  granted  the  new  trial  because  it  was  of  the  opinion,  from 
the  admitted  facts  before  it,  that  an  injustice  had  plainly 
been  done  the  plaintiff;  although  it  was  also  of  the  opinion 
that  on  the  case  presented,  its  action  in  directing  a  verdict  for 
the  defendant  was  clearly  right,  and  that  no  valid  legal  rea- 
sons were  produced  for  granting  a  new  trial.  Walker  t. 
Walker,  68. 

9.  Partition — Land  in  two  counties — Jurisdiction — Aver- 
ments of  bUl — Amendment — Appearance.  Kevin  t.  Catanaek, 
623. 

10.  Pleading — Variance — Appeals — Negligence. 

A  judgment  on  a  verdict  in  an  accident  case  will  not  be  re- 
versed because  of  the  admission  of  evidence  alleged  to  be  at 
variance  with  the  averments  of  the  statement,  where  no  ob- 
jection was  made  at  the  trial  to  its  admission,  no  motion  was 
made  to  strike  it  out,  or  for  a  nonsuit,  and  on  the  appeal,  no 
assignment  of  error  raised  the  question  of  variance.  Mlnuto 
r.  Phil*.  *  Reading  By.  Co.,  93. 

11.  New  trial — Abuse  of  discretion — Appeals. 

The  action  of  the  trial  court  in  passing  upon  a  motion  for  a 
new  trial,  is  subject  to  reversal  only  in  case  of  manifest  abuse 
of  discretion.    MeSvoy  v.  Quaker  City  Oak  Co.,  420. 

12.  New  trial — Discretion  of  court — Appeal. 

The  appellate  court  will  not  reverse  an  order  of  the  common 
pleas  granting  a  new  trial  where  no  abuse  of  discretion  appears 


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660  INDEX. 

PRACTICE,  C.  ?.— continued. 

on  the  part  of  the  lower  court,  and  that  court  states  that  in  its 
judgment  "the  ends  of  justice  will  be  best  served  by  submission 
of  the  case  to  a  second  jury."  I«bo  t.  Reading  Tramstt  Co^ 
270. 

13.  Remarks  of  counsel — Exception — Appeals. 

The  appellate  court  will  not  consider  an  assignment  of  error 
based  on  alleged  improper  remarks  of  counsel  to  the  jury, 
where  no  objection  or  exception  was  taken  at  the  time  to  such 
remarks.    MeEroy  t.  Qmaker  City  Gab  Co.,  418. 

14.  Summary  judgment — Affidavit  of  defense  in  nature  of 
demurrer — Allowance  of  supplemental  affidavit  of  defense — Act 
of  May  U,  1915,  P.  L.  483. 

Where  an  affidavit  of  defense  makes  no  denial  of  the  facts 
contained  in  the  statement  of  claim,  but  simply  raises  ques- 
tions of  law,  the  court  cannot,  on  finding  the  questions  of  law 
in  favor  of  the  plaintiff,  enter  a  summary  judgment  in  his 
favor,  but  must  give  the  defendant  an  opportunity  to  file  a 
supplemental  affidavit  of  defense  to  the  averments  of  fads  of 
the  statement,  in  accordance  with  the  provisions  of  the  Act 
of  May  14,  1915,  P.  L.  483.    Skifferstima  r.  Sitler,  290. 

PRACTICE,  SUPREME  COURT. 

1.  Appeals — Interlocutory  order— Quashing  appeal. 
Where  the  orphans'  court  dismisses  exceptions  to  an  account 

with  a  further  order  that  a  "decree  of  distribution  be  prepared 
in  accordance  with  the  views  expressed  in  this  opinion,"  such 
order  is  merely  interlocutory,  and  no  appeal  can  be  taken  until 
the  decree  is  absolutely  confirmed.    Kaeir's  Est*    224. 

2.  Appeals — Errors  by  trial  judge  in  commenting  on  testi- 
mony— Necessity  of  calling  judge's  attention  to  the  mistake. 

Mistakes  made  by  the  trial  judge  in  the  statement  of  the 
testimony  to  the  jury  cannot  be  taken  advantage  of  on  appeal 
where  his  attention  was  not  called  thereto  at  the  time,  since  a 
party  may  not  sit  silent  and  take  his  chance  of  a  verdict,  and 
then,  if  it  is  adverse,  complain  of  a  matter  which,  if  an  error, 
would  have  been  immediately  rectified  and  made  harmless. 
MeMUlam  t.  Strathmamn,  13. 

3.  Appeals — Assignments  of  error — Motion  for  judgment  n. 
o.  v. — Withdrawal  of  motion — New  trial. 

The  withdrawal  of  an  assignment  of  error  to  the  refusal  of  a 
motion  for  judgment  n.  o.  v.  is  an  admission  that  the  case  is 
for  the  jury. 

The  appellate  court  will  not  reverse  a  judgment  on  a  verdict 
because  the  trial  court  refused  a  new  trial,  where  no  error  is 
assigned  to  the  admission  or  rejection  of  testimony,  or  to  the 


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PBAOHOE,  SUPREME  OOUBT— continued. 

charge  of  the  court,  and  the  only  reasons  assigned  for  a  new 
trial  in  the  court  below  were  that  the  verdict  was  against  the 
law,  the  evidence,  the  weight  of  the  evidence,  the  charge  of  the 
court,  and  was  excessive.  Informational  Forge  Co.  v.  Beeves, 
431. 

4.  Appeals — Record — Omitted  evidence — Review  of  rulings 
affected  thereby. 

Where  all  the  evidence  used  in  the  court  below  is  not  pre- 
sented to  the  appellate  court,  rulings  which  may  have  been 
affected  by  the  omitted  evidence  cannot  be  reviewed  by  the  ap- 
pellate court.    DeMareni  v.  Central  B.  B.  Co.,  821. 

5.  Assignments  of  error — Charge  of  the  court. 

The  Supreme  Court  will  not  consider  a  complaint  that  the 
charge  of  the  court  was  inadequate,  where  the  charge  is  not 
quoted  in  the  assignment  of  error.  MoMillon  v.  Strata- 
mama,  13. 

6.  Assignments  of  error — Documentary  evidence. 

Assignments  of  error  to  the  admission  or  rejection  of  docu- 
mentary evidence  will  not  be  considered,  where  the  documents 
in  question  are  not  set  forth  in  the  assignments.  Dnqnesne 
Bond  Corp.  t.  Am.  S.  Co.  of  H.  Y„  203. 

7.  Assignments  of  error— Rulings  on  evidence— Equity  prac- 
tice. 

Assignments  of  error  to  rulings  on  evidence  in  an  appeal 
from  a  decree  dismissing  a  bill  in  equity,  will  not  be  con- 
sidered, where  no  exceptions  to  such  rulings  appear  as  having 
been  filed  after  the  entry  of  the  decree  nisi,  so  that  they  might 
be  passed  upon  by  the  court  in  banc,  as  required  by  Equity 
Bule  No.  64.    Lilllbridge  v.  Lackawanna  Coal  Co^  236. 

8.  Assignments  of  error — General  exception — Special  excep- 
tion— Request  of  instruction. 

An  assignment  of  error  to  matter  which  is  not  of  a  character 
which  can  be  taken  advantage  on  a  mere  general  exception, 
will  not  be  considered,  where  the  record  shows  that  no  special 
exception  to  the  instruction  was  requested  or  noted. 

Where  an  assignment  of  error  complains  because  the  trial 
judge  said  to  the  jury:  "Plaintiff  is  interested  in  the  case, 
but  still  he  is  entitled  to  testify,"  and  the  appellant  contends 
that  the  instruction  should  have  been  differently  worded,  the 
assignment  will  not  be  considered,  if  it  appears  that  the  ap- 
pellant did  not  ask  for  the  instruction  which  he  desired  in 
advance,  or  specially  except  to  the  charge  because  of  its  omis- 
sion. Such  complaint  will  not  be  considered  on  a  general  ex- 
ception.   Gordon  v.  Paila.  B.  T.  Co.,  461. 


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682  INDEX. 

PRACTICE,  SUPREME  COURT— continued. 

9.  Assignments  of  error — Excerpt  from  charge. 

Where  an  assignment  of  error  is  to  a  portion  of  the  charge, 
the  excerpt  assigned  for  error  must  present  completely  the 
phraseology  used  by  the  judge  in  expressing  the  full  thought 
under  immediate  consideration,  and  the  appellant  is  not  per- 
mitted to  elide  essential  words.  Gordom  t.  Phil*.  B.  T.  Co., 
461. 

10.  Criminal  law — Murder — Evidence— Weapon — Declara- 
tions of  deceased  —  Degrees  —  Charge  —  Abstract  question — 
Character — Charge  as  to  law — Presence  of  defendant  in  court 
— New  trial — Assignments  of  error.    Com.  ▼.  Bednereiki,  124. 

11.  Election  law — Amendment  —  Appeal  — Assignments  of 
error.    Paddea's  Contested  Election,  183. 

12.  New  trial — Abuse  of  discretion — Assignments  of  error — 
Appeals. 

The  Supreme  Court  will  not  sustain  an  assignment  of  error, 
complaining  of  a  refusal  of  a  new  trial,  unless  the  record  shows 
a  manifest  abuse  of  discretion.    Whitcomh  ▼.  FhiUu,  277. 

13.  Objection  not  made  below — Excessive  verdict — New  trial. 
Where  complaint  that  the  verdict  is  excessive  was  not  made 

in  the  court  below,  it  will  not  be  considered  on  appeal;  the 
power  of  the  appellate  court  to  grant  a  new  trial  on  this  ground 
is  very  exceptional.    McEroy  ▼.  Quaker  City  Cab  Co.,  418. 

PREUMINAKY  INJUNCTION. 

1.  Equity  —  Maintaining  status  quo  —  Appeal.  Bailey  t. 
Tomng  Women's  Christian.  Ainu,  515. 

2.  Injunction  bond — Liability — Determination — Disposition 
upon  the  merits.    Winston  ▼.  Ladner,  648. 

PRESUMPTION. 

1.  Equity — Parties— Title — Will— Jurisdiction — Dismissal 
of  bill  without  prejudice.    Craig  t.  Craig,  380. 

2.  Road  law — Unopened  streets — Deed — Implied  easement 
of  right-of-way — Res  gesta* — Rebuttal — Estoppel — Boundaries 
— Dedication — Damages.    Hawkes  t.  Philadelphia,  846. 

PRINCIPAL  AND  AGENT. 

1.  Collection  of  mortgage — Fraudulent  representations — Em* 
bezzlement — Securing  mortgage  from  third  person— Cancella- 
tion— Fraud. 

Where  an  agent  collected  an  outstanding  mortgage  belonging 
to  his  principal  and  embezzled  the  money  and  afterwards 
secured  possession  of  the  bond  and  mortgage,  together  with  a 
power  of  attorney  to  satisfy  the  same  upon  representing  to  his 


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PRINCIPAL  AND  AQmT— continued. 

principal  that  he  would  loan  ihe  money  to  a  third  person,  and 
afterwards  by  fraudulent  representations  procured  from  such 
third  person  a  bond  and  mortgage  in  favor  of  his  principal  to 
conceal  the  embezzlement,  the  principal  cannot  hold  the  latter 
mortgage  as  a  valid  obligation,  but  the  loss  occasioned  by  the 
embezzlement  must  fall  upon  the  principal.  Watldas  v.  Ben- 
seoter,  574. 

2.  Taxation — Mercantile  tax  —  Corporations — Vendors  of 
coal — Words  and  phrases — Del  credere  agent.  Com.  ▼•  Thome, 
Heal©  *  Co.,  408. 

8.  Contract" — Consideration— 'Fraud — Evidence— Principal 
and  agent — Decedents'  estates.    Sneer's  Estate,  51. 

PRINCIPAL  AND  SURETY. 

1.  Bond — Duress — Affidavit  of  defense — Conclusion  of  law. 

In  an  action  by  an  executor  against  a  surety  company  on  a 
bond  signed  by  the  company  and  an  individual,  where  it  ap- 
pears that  the  obligation  was  to  pay  a  debt  of  a  third  person  to 
the  plaintiff's  decedent,  an  affidavit  of  defense  is  insufficient, 
which  avers  that  the  bond  was  not  given  for  value,  and  that 
neither  of  the  obligors  were  indebted  to  plaintiff  or  his  dece- 
dent, that  the  bond  was  given  to  prevent  the  issuing  of  a 
warrant  against  the  debtor  referred  to  in  the  bond,  who  was 
president  of  a  company  of  which  the  individual  obligee  was  a 
director,  that  such  arrest  would  have  resulted  in  great  loss  to 
such  obligee,  and  that  the  bond  was  obtained  by  means  of 
false  statements  and  threats  made  by  plaintiff's  counsel  to  the 
obligee,  without  any  averments  that  such  representations  or 
threats  were  made  to  the  defendant,  the  surety  company,  or 
that  the  debt  referred  to  in  the  bond  was  not  due,  or  that  the 
debtor  had  been  notified  before  the  execution  of  the  bond,  or 
excuse  given  for  not  notifying  him. 

An  averment  in  the  affidavit  of  defense  that  "there  was  no 
criminal  liability"  on  the  part  of  the  debtor  mentioned  in  the 
bond,  is  a  mere  conclusion  of  law. 

In  such  a  case,  where  it  appears  from  the  affidavit  of  de- 
fense that  the  surety  company  knew  of  the  alleged  threats, 
before  it  executed  the  bond,  it  cannot  set  up  the  defense  of 
duress. 

A  defense  of  duress  is  open  only  to  the  party  upon  whom  it 
is  imposed;  a  third  party,  who  has  become  a  surety  for  the 
payment  of  the  claim,  cannot  avail  himself  of  the  plea,  unless 
he  signed  the  obligation  without  knowledge  of  ihe  duress. 
Waltom  v.  Am.  S.  Co.  of  H.  Y„  272. 


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664  INDEX 

PROFITS. 

1.  Anticipated  profits  —  Pleading  —  Counterclaim  —  Suffi- 
ciency— Damage* — Breach  of  contract  to  furnish  goods  for  re- 
sale—Time for  delivery — Sale*.  Gmoxomty  Motors  Co.  ▼. 
Hmdf  ord,  oto*  Solos  Co*  557. 

2.  Contracts — Sale — Contract  for  buyer's  requirement  for 
year — Monthly  deliveries — Maximum  and  minimum  clauses — 
Resale — Accounting.  Diomomd  Alkali  Co.  ▼.  Mtmm  Explo- 
sive Co.,  804. 

8.  Negligence — Damages — Earning  power — Evidence. 
tor  t.  Phil*.  St  Reodims;  By.  Co*,  467. 

PROMISSORY  NOTES. 

1.  Sale — Action  for  purchase  price — Title.    Yoogor  v« 
sol,  327. 

2.  Negotiable  instruments — Accommodation  maker — Con- 
sideration— Contemporary  parol  promise — Affidavit  of  defense. 

In  an  action  on  a  promissory  note  by  a  trust  company,  the 
holder,  against  the  maker,  an  affidavit  of  defense  is  sufficient, 
which  avers  that  defendant  became  maker  of  the  note  at  the 
request  and  for  the  sole  benefit  of  the  plaintiff,  and  on  reliance 
upon  a  contemporary  parol  promise  by  the  plaintiff  that  the 
defendant  would  not  be  liable  to  it  upon  said  note. 

In  such  a  case  the  plaintiff  is  not  a  holder  of  the  note  for 
value,  and  the  defendant  is  a  mere  accommodation  maker  of 
it.    Laokawaaaa  Trust  Co.  ▼.  Carlmeei,  226. 


PROXIMATE  CAUSE. 

1.  Negligence — Hole  in  street — Breaking  of  wagon  axle — 
Injury  to  pedestrian.    Homry  v.  Fkllodolpklm,  88. 

2.  Negligence — Railroads — Concurrent  causes — Res  gestm — 
Pleading  —  Allegata  and  probata  —  Nonsuit.  Torlotski  ▼. 
Phils*  *  Roadla*  By.  Co*  85. 

PUBLIC  ACCOUNTANTS. 

1.  Negligence — Certified  public  accountants  —  Absence  of 
contract  relation.    Xoadell  v.  LytmaA,  406. 

PUBLIC  OFFICERS. 

1.  Appeals — Moot  questions.    Wlasom  ▼.  Lodaer,  648. 

2.  Removal — Cause  —  Insubordination  and  disrespect — Dis- 
cretion— Cities  of  the  second  class— Act  of  May  MS,  1907,  P. 
L.M. 

The  mayor  of  the  city  of  the  second  class,  may  remove  the 
incumbent  of  an  office  in  the  competitive  class  of  the  classified 


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PUBLIC  OYFIGEBS^onHnued. 

civil  service,  for  insubordination  and  the  use  of  profane  and 
contemptuous  language  in  reference  to  the  mayor,  without  a 
hearing  or  trial,  if  he  has  complied  with  the  provisions  of  Sec- 
tion 20  of  the  Act  of  May  23,  1907,  P.  L.  206,  by  furnishing 
such  incumbent  with  a  written  statement  of  the  reasons  for 
his  action,  and  given  him  an  opportunity  to  answer  in  writing, 
and  has  filed  with  the  civil  service  commission  copies  of  such 
written  statement  and  the  answer  thereto. 

What  constitutes  ample  cause  for  removal  within  the  limits 
fixed  by  the  Act  of  1907,  must  necessarily  be  largely  a  matter 
of  discretion  on  the  part  of  the  head  of  the  department.  To 
be  sufficient,  however,  the  cause  should  be  personal  to  the  em- 
ployee and  such  as  to  render  him  unfit  for  the  position  he  oc- 
cupies, thus  making  his  dismissal  justifiable,  and  for  the  good 
of  the  service.  Insubordination  and  disrespect  towards  a  su- 
perior are  proper  grounds  for  dismissal.  Thorn**  t.  Connell, 
242. 

PUNITIVE  DAMAGES. 

1.  Libel — Responsibility  of  publisher  for  act  of  agent  — 
Malice.    Wkaren  y,  Dershvek,  562. 

BAILBOADS. 

1.  Leases — Dividends — Taxes — Taxation. 

Where  a  lease  of  a  street  railway  provides  that  the  lessee 
shall  "pay  all  taxes,  charges  and  assessments,  now  or  hereafter 
lawfully  imposed  upon  the  lessor's  existing  bonds,  capital  stock, 
real  and  personal  property  and  future  dividends,"  the  lessee  is 
not  required  to  pay  the  lessor's  federal  income  tax  assessed 
upon  the  rental  paid  under  the  lease.  Green  *  Coatee,  etc., 
By.  Co.  ▼.  Phila.  B.  T.  Co.,  424. 

2.  Negligence — Death  at  crossing — Photograph.  Baxter  t. 
Phila.  *  B.  By.  Co.,  467. 

3.  Negligence — Foreman  of  independent  contractor — Con- 
tributory negligence — Death.  Sweatman  t.  Penna.  B.  B. 
Co.,  286. 

4.  Negligence — Infant  —  Trespasser  on  cars.  Minute  t. 
Pnlla.  *  Beading  By.  Co.,  93. 

5.  Negligence — Passenger — Presumption  from  break  in  de- 
fendants appliance — Evidence.  DeBovvier  t.  Penna.  B.  B. 
Co^443. 

6.  Negligence — Position  of  peril — Sudden  emergency — Sol- 
dier on  guard  at  bridge — Contributory  negligence.  Kelly  t. 
Penna.  B.  B.  Co*  426. 


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666  INDEX 

RAILKOADS— continued. 

7.  Negligence  —  Infant  trespasser — Frightening  boy  from 
car — Proximate  cause — Concurrent  causes — Res  gestm — Plead- 
ing— Allegata  and  probata — Nonsuit.  Tertetskft  ▼.  Pail*.  A 
Reading  By.  Co.,  85. 

8.  Rates — Schedules — Interstate  commerce — Intrastate  com- 
merce— Quantum  meruit — Pennsylvania  Public  Service  Com- 
mission— Interstate  Commerce  Commission — Jurisdiction  — 
Act  of  Congress  of  June  29, 1906. 

Under  the  Act  of  Congress  of  June  29,  1906,  relating  to 
interstate  commerce,  the  interstate  carrier  can  neither  recover 
freight  charges  nor  pay  the  owner  any  allowance  for  services 
in  connection  with  such  transportation,  except  as  provided  in 
schedules  previously  filed. 

A  railroad  company  owning  a  short  line  of  tracks,  which  is  a 
mere  plant  facility  to  a  large  steel  company,  engaged  in  the 
work  of  shifting  and  placing  cars  received  from  a  railroad 
company  operating  interstate  traffic,  cannot  recover  compensa- 
tion from  such  company  for  shifting  interstate  cars,  where 
no  schedule  of  rates  has  heen  promulgated  as  provided  by  the 
Act  of  Congress. 

Where  the  two  companies  had  entered  into  an  agreement 
that  the  work  of  shifting  cars  should  be  paid  for  in  accordance 
with  a  schedule  fixed  by  the  line  carrier,  until  the  matter 
should  be  adjusted  by  the  Interstate  Commerce  Commission, 
and  it  appears  that  the  line  carrier  cancelled  the  agreement 
before  the  schedule  was  ever  called  to  the  attention  of  the 
commission,  and  that  the  schedule  was  for  rates  less  than  the 
value  of  the  services,  such  cancellation  does  not  oust  the  juris- 
diction of  the  commission,  which  might  still  determine  the 
validity  of  the  cancellation,  and  press  upon  the  question  of 
the  allowance  of  past  transactions. 

In  case  of  cars  received  from  the  line  carrier,  which  were 
engaged  in  merely  State  traffic,  the  agreement  between  the  two 
companies  did  not  oust  the  jurisdiction  of  the  State  courts, 
and  recovery  could  be  had  on  a  quantum  meruit  against  the 
line  carrier  as  to  such  cars  where  payments  made  had  been  at 
the  schedule  rate  which  was  less  than  the  actual  cost  of  the 
services. 

If  the  shifting  company  applies  to  the  Pennsylvania  Public 
Service  Commission  to  annul  the  cancellation  of  the  agree- 
ment, and  to  allow  it  a  fair  compensation  for  services  rendered 
in  interstate  traffic  subsequent  to  the  date  when  the  Public 
Service  Act  went  into  effect,  and  such  application  is  pending 
at  the  same  time  a  case  is  tried  between  the  two  companies  in 


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-RAILROADS— continued. 

which  the  shipping  charges  is  the  question  at  issue,  the  shift- 
ing company  is  precluded  from  recovery  therein  as  to  so  much 
of  the  claim  as  may  be  disallowed  by  the  commission. 

In  such  a  case,  where  no  distinction  has  been  made  at  the 
trial  between  interstate  and  intrastate  traffic,  and  a  verdict  is 
rendered  in  favor  of  the  shifting  company  for  the  full  amount 
of  its  claim  on  both  kinds  of  traffic  and  for  intrastate  traffic 
after  the  Public  Service  Act  went  into  effect,  the  judgment 
will  be  reversed,  and  a  new  trial  granted. 

It  is  competent  for  a  manufacturing  company  and  a  rail- 
road company,  except  as  restrained  by  statute,  to  contract  that 
the  line  freight  may  include  the  service  of  moving  cars  in  and 
about  the  plant,  and  the  railroad  company  may  perform  this 
work  with  its  own  equipment,  or  employ  the  manufacturing 
company's  plant  facility,  to  do  it.  Pittsburgh  *  L.  E.  B. 
B.  v.  South  Shore  B.  B*  162. 

REBUTTAL. 

1.  Road  law — Unopened  streets — Deed — Implied  easement  of 
right-of-way — Presumption  —  Res  gestm  —  Estoppel  —  Bound- 
aries— Damages.    Hawhes  v.  Fhila*  846. 

RECORD. 

1.  Practice,  Supreme  Court — Appeals — Omitted  evidence — 
Review  of  rulings  affected  thereby.  Do  March!  t.  Central  B. 
B.  Co*  321. 

REFEREE. 

1.  Workmen's  compensation — Finding  of  fact — Issues — Ac* 
cident — Interstate  commerce  —  Review  by  court.  Belli?  v« 
Erie  B.  B.  Co.,  329. 

REMOVAL. 

1.  Executors  and  administrators  —  Mismanagement — Evi- 
dence.   Baler's  Est.,  296. 

2.  Executors  and  administrators  —  Mismanagement — Ex- 
aminer to  take  testimony — Petition — Answer — Discretion  of 
court.    Boiler's  Est*  310. 

RES  ADJTJDICATA. 

1.  Attachment  execution— Stock  of  corporation  —  Stipula- 
tion on  appeal— Interpleader— Res  adjudicata — Parties.  Du- 
quesne  Bomd  Corp*  208. 

2.  Parties — Corporation— Stockholder. 


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668  INDEX. 

EES  ADJUDICATA— continued. 

In  an  action  of  assumpsit  on  book  accounts  by  one  corpora- 
tion against  another,  where  a  judgment  is  entered  adversely 
to  the  defendant  on  a  counterclaim  set  up  for  damages  for  re- 
scission of  a  contract  alleged  to  have  been  assigned  to  it  by 
its  largest  stockholder,  such  judgment  is  not  res  judicata,  in  a 
subsequent  action  by  such  stockholder  against  the  plaintiff 
corporation  in  the  former  suit,  for  damages  for  the  rescission 
of  the  same  contract,  inasmuch  as  the  parties  are  not  the  same. 
The  fact  that  plaintiff  in  the  second  suit  was  a  large  stock- 
holder of  the  corporation  which  was  the  defendant  in  the  first 
suit,  did  not  make  him  a  party  in  the  first  suit,  within  the 
meaning  of  the  rule  requiring  identity  of  parties  to  make  a 
judgment  in  one  proceeding  res  judicata  in  another. 

Where  the  jury  expressly  found  in  the  first  case  that  there 
was  no  assignment  of  the  contract  in  question  by  the  stock- 
holder to  the  corporation  and  overruled  the  claim  for  damages 
for  this  reason,  there  was  no  adjudication  on  the  merits,  and 
the  first  case  was  not  res  judicata  of  the  second. 

The  fact  that  the  plaintiff  in  the  second  suit  testified  in  the 
first  suit,  that  he  had  made  such  assignment,  will  not  bar  him 
from  recovery  in  the  second  suit,  where  it  appears  that  he  was 
in  fact  mistaken,  in  thinking,  and  so  testifying,  that  certain 
steps  which  he  had  taken  constituted  a  valid  transfer  of  the 
contract. 

The  record  of  the  first  suit  does  not  conclusively  establish 
the  facts  testified  to  by  the  witness,  so  as  to  constitute  an 
estoppel,  but  only  as  evidence  of  a  declaration  or  admission  by 
the  witness  that  the  facts  were  as  stated,  and  affects  merely 
his  credibility.    Macan  t.  Scandinavia  Belting  Co.,  384. 

RES  GESTAE. 

1.  Criminal  law — Murder — Degrees — Charge — Offense — Ex- 
hibit— Discretion  of  court — Appeal — Review — Harmless  error. 
Com.  ▼•  Brown,  85. 

2.  Negligence  —  Railroads  —  Infant  trespasser  —  Proximate 
cause — Pleading — Allegata  and  probata — Nonsuit  Terletatt 
▼.  Phila.  Jt  Reading  By.  Co.,  85. 

8.  Road  law — Unopened  streets — Deed — Implied  easement  of 
right-of-way — Presumption — Rebuttal — Estoppel  — Boundaries 
— Dedication — Damages.    Hawkes  v.  Philadelphia,  846. 

RIPARIAN  OWNERS. 

1.  Waters — Rivers — Low  watermark  —  Boundaries — Accre- 
tions.   Black  t.  American  International  Corporation,  360. 


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INDEX  669 

BIVEBS. 

1.  Waters — Riparian  owners — Low  watermark — Boundaries 
— Accretions,    Black  ▼.  American  International  Corp.,  260. 

KOAD  LAW. 

1.  Unopened  streets — Deed — Implied  easement  of  right-of- 
way — Presumption — Res  gestm — Rebuttal — Estoppel — Bound- 
aries—Dedication— Damages—Act  of  May  9,  1899,  P.  L.  17S. 

Where  land  is  conveyed  bounded  by  an  unopened  street  pro- 
jected by  a  municipality,  the  grantee  by  implication  acquires 
an  easement  over  the  bed  of  that  street,  unless  the  circum- 
stances attending  the  conveyance  and  the  description  of  the 
grant  negative  such  implication.  Such  act  is  in  no  sense  a 
dedication,  nor  does  the  owner  covenant  that  the  municipality 
shall  in  the  future  open  that  street.  The  lot  is  sold  subject  to 
a  possible  relinquishment,  by  the  municipality,  of  its  right  to 
open;  but,  if  it  does  open  the  street  for  public  use,  whatever 
covenant  springs  from  the  conveyance  of  a  lot  so  bounded,  is 
executed  when  the  street  is  actually  opened  as  a  street.  The 
"attending  circumstances"  which  defeat  the  implication  of  a 
covenant  or  easement  must  be  gathered  from  the  instrument 
conveying  the  land,  and  the  res  gestae  of  the  transaction. 

When  the  city  relinquishes  its  right  to  open  by  proper  mu- 
nicipal action,  one  of  the  inducing  features  held  out  to  the 
grantee  to  purchase  disappears  but  the  implied  contract  or 
easement  of  a  way  from  the  lot  as  between  grantor  and  grantee 
is  not  destroyed.  It  is,  however,  limited  to  such  way  as  may  be 
reasonably  necessary  to  the  enjoyment  of  the  lot  or  lots  sold, 
corresponding  in  its  essential  requirements  to  the  street  named 
in  the  deed.  The  grantor  and  his  assigns  are  estopped  from 
asserting  the  contrary. 

In  a  proceeding  against  the  City  of  Philadelphia  to  assess 
damages  for  the  value  of  a  piece  of  land  forming  the  northern 
half  of  the  bed  of  Arch  street  between  two  streets  named.  The 
court  will  direct  judgment  against  the  plaintiff  where  it  ap- 
pears that  prior  to  May  21,  1858,  the  portion  of  Arch  street 
was  plotted  on  the  city  plans,  but  not  opened;  that  on  May 
21,  1858,  the  owner's  predecessor  in  title  conveyed  the  land 
north  of  Arch  street,  describing  it  as  beginning  at  a  point  in 
the  north  line  of  Arch  streets,  and  extending  along  the  north 
side  of  said  street,  etc.;  that  later  in  the  same  year  he  con- 
veyed to  another  party  the  land  on  the  south  side  of  Arch 
street,  describing  it  as  running  eastwardly  along  the  middle 
line  of  Arch  street;  that  in  1910,  when  the  city  authorized  the 
opening  of  the  northern  half  of  Arch  street,  the  southern  half 


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ROAD  LAW— continued. 

was  used  as  a  street  by  the  public,  and  that  the  parties  agreed 
of  record  that  the  northern  half  of  the  street  subject  to  an 
implied  covenant  for  easement  of  right-of-way,  was  valueless. 

The  Act  of  May  9,  1889,  P.  L.  173,  which  provided  that 
streets  laid  out  on  plans  of  lots,  but  not  opened  for  twenty-one 
years  next  after  the  laying  out  of  the  same  should  not  be 
opened  without  the  consent  of  the  owner,  does  not  apply  where 
a  portion  of  the  width  of  the  street  has  been  used  by  the  public 
within  the  twenty-one  years.    Hawkes  ▼.  PhlUu,  846. 

SALAET. 

1,  Unpaid  salary — Pleading—Counterclaim — Wrongful  die- 
charge — Tender  of  performance  after  discharge.  Gmaramty 
M.  Co.  t.  Hudf  ord  P.  S.  Co.,  557. 

SALE,  see  Contracts. 

1.  Action  for  purchase  price — Promissory  notes — Lack  of 
title — Promise  not  to  sue  until  title  is  acquired — Claims  of 
third  person  tarred  by  statute  of  limitations. 

One  who  has  given  his  notes  for  the  purchase  of  lumber  can- 
not resist  payment  on  account  of  lack  of  title  in  the  seller  and 
a  promise  by  the  seller  not  to  bring  an  action  upon  the  notes 
until  he  had  acquired  title,  where  by  reason  of  lapse  of  time 
any  claim  to  the  lumber  by  any  one  is  barred  by  the  statute  of 
limitations.    Yeager  v.  Hansel,  827. 

2.  Custom — Evidence  —  Modification  of  contract — Implied 
warranty. 

In  an  action  to  recover  the  contract  price  of  1,000  hides, 
where  it  appears  that  the  contract  specified  delivery  of  two 
grades  of  hides  at  different  prices,  but  did  not  specify  the  pro- 
portions of  each,  it  is  improper  to  offer  to  prove  by  a  witness 
a  trade  custom,  requiring  in  case  of  a  sale  of  a  lot  of  hides  of 
different  grades  a  fixed  proportion  as  between  the  several 
grades.  Such  an  offer  involved  an  introduction  into  the  writ- 
ten agreement  of  a  custom  of  trade  at  variance  with  the  ex- 
press terms  of  the  contract,  and  an  implied  warranty  which 
did  not  arise  from  the  contract  itself. 

If  such  an  offer  was  not  so  directed  in  form  as  to  disclose  a 
trade  custom,  it  was  properly  rejected,  where  the  record  failed 
to  disclose  any  evidence  tending  to  establish  such  custom. 
XreU  v.  Hosier,  408. 

8.  Contract—Evidence — Master's  findings  of  facts.  1.  0.  ▼. 
Co.  v.  S.  O.  ▼.  Co.,  877. 


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INDEX  671 

SALE— continued, 

4.  Contract — Warrant — Acceptance  and  implied  warranty — 
Notice — Goods  not  ordered—Measure  of  damages.  Sammel  t. 
Del.  River  Steel  Co.,  190. 

5.  Pleading — Counterclaim — Sufficiency — Damages — Breach 
of  contract  to  furnish  goods  for  resale — Time  for  delivery — An- 
ticipated profits.  Guaranty  Motors  Co.  ▼.  Hudford,  etc., 
Sales  Oo*,  557. 

6.  Trade  name— Custom — Warranty — Inspection — Damages 
—Expenses— Act  of  May  19, 1915,  P.  L.  5ifi. 

A  trade  name  within  the  provisions  of  the  Sales  Act  of  May 
19,  1915,  P.  L.  543,  is  a  name  given  by  a  manufacturer  to  the 
particular  product  made  by  him.  The  generic  name  of  an 
article  manufactured  by  a  number  of  people  is  not  a  trade 
name  within  that  act. 

If  one  party  is  allowed  to  offer  proof  of  an  alleged  custom  the 
other  must  be  permitted  to  produce  evidence  to  the  contrary. 

Where  goods  are  sold  f .  o.  b.  a  distant  point  without  inspec- 
tion, and  the  purpose  for  which  they  were  purchased  was  made 
known  to  the  seller,  there  is  an  implied  warranty  of  quality 
under  the  Sales  Act,  unless  the  other  facts  in  the  case  show 
that  no  such  warranty  was  intended. 

In  case  of  breach  of  warranty  of  quality  of  an  article  pur- 
chased for  a  known  purpose  of  manufacture,  expenses  incurred 
in  good  faith  in  endeavoring  to  use  the  article  for  that  purpose, 
are  recoverable  under  the  Sales  Act  if  not  too  remote.  CtrftStm 
y.  Metal  Product  Co.,  254. 

SCAFFOLDING. 

1.  Negligence — Master  and  servant — Safe  place  to  worh — In- 
secure guard  rail.    Reilly  ▼.  Reilly,  103. 

SCHEDULES. 

1.  Railroads — Rates — Interstate  commerce— Intrastate  com- 
merce— Ovantum  meruit — Pennsylvania  Public  Service  Com- 
mission — Interstate  Commerce  Commission — Jurisdiction. 
Pittsburgh  *  Lake  Brie  B.  B.  ▼.  Month  Shore  B.  R.  Co.,  162. 

SET-OFF. 

1.  Practice,  C.  P. — Affidavit  of  defense — Waiver — Reply — 
Admissions — Appeals.    Federal  Sales  Co.  ▼•  FarreU,  149. 

SHERIFFS  SALE. 

1.  Resale — Setting  aside  sale. 

Where  the  owner  of  a  second  lien  on  a  property  purchases 
the  property  at  a  sheriffs  salq,  and  is  prevented  by  a  rule  of 


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672  INDEX. 

SHERIFFS  SALE— continued. 

the  fuel  administrator  as  to  the  operation  of  elevators,  from 
reaching  with  his  attorney  the  sheriff's  office,  at  a  certain  hour 
when  the  purchase  money  was  to  he  paid,  and  the  property  is 
sold  at  a  second  sale,  the  first  purchaser  is  entitled  to  have  the 
second  sale  set  aside,  when  he  shows  that  he  had  money  with 
him  to  pay  the  purchase  price  when  he  tried  to  reach  the 
sheriff's  office,  that  he  was  eighty-six  years  old,  that  he  was 
delayed  by  reason  of  the  fuel  rule,  and  that  he  had  entered 
a  bond  with  the  sheriff  to  bid  $2,200  in  excess  of  the  bid  at 
the  second  sale,  if  another  sale  were  ordered ;  the  first  purchaser 
to  reimburse  the  second  purchaser  his  expenses. 

An  acknowledgment  of  a  sheriff's  deed  will  be  set  aside, 
where  it  appears  that  exceptions  to  the  sheriff's  sale  were  pend- 
ing when  the  acknowledgment  was  made  the  Act  of  April  22, 
1905,  so  provides.    Iron  *  Glass  D.  8.  B.  t.  Wigmmn,  146. 

SPEED. 

1.  Negligence — Automobiles  —  Right-angle  collision — Con- 
tributory negligence.    Simon  t.  Idt  Bros*,  lae*,  121. 

SPECIFIC  PERFORMANCE. 

1.  W ill — Testamentary  character  of  paper.    Lose*'*  Estate, 

58. 

2.  Sale  of  real  estate — Statute  of  frauds — Contract — Two  or 
more  writings — Act  March  21, 1772, 1  Sm.  L.  389. 

A  sale  of  real  estate  cannot  be  specifically  enforced  unless  all 
the  requisite  facts  in  regard  thereto  are  in  writing,  including 
the  absolute  identification  of  the  property. 

The  requisite  facts  may  appear  in  two  or  more  papers  if 
from  any  of  them  or  from  any  other  writing  it  is  shown  they 
together  form  the  contract  of  sale. 

The  writing  or  writings  must  be  signed  by  the  real  owner  if 
his  title  is  to  be  affected  thereby.  Weisemberger  ▼.  Huebmer, 
816. 

SPENDTHRIFT  TRUST. 

1.  Trusts  and  trustees — Active  trust — Husband  as  trustee 
and  beneficiary.    Fox's  Est.,  478. 

STATEMENT  OF  CLAIM. 

1.  Evidence — Burden  of  proof — Action  on  death  benefit  cer- 
tificate— Pleading.    Tkateh  t.  Knights  sV  Ladles  of  Seemrity, 

578. 


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STATUTE  OF  FRAUDS. 

1.  Evidence — Sufficiency  of  writing — Several  papers — Parol 
evidence. 

If  written  memoranda,  consisting  of  separate  papers,  are  de- 
pended upon  to  satisfy  the  statute  of  frauds,  when  taken  to- 
gether they  must  accord  in  every  material  particular  with  the 
bargain  averred  inasmuch  as  parol  evidence  is  incompetent  to 
explain  departures. 

Where  in  an  action  of  ejectment  by  a  mother  against  two 
sons,  the  defendants  claim  title  by  virtue  of  an  alleged  agree- 
ment, the  consideration  of  which  is  to  maintain  a  home  for 
their  mother  for  life,  and  by  which  she  was  to  execute  a  deed 
to  the  two  sons  in  common  for  one  farm,  and  to  devise  by  will, 
two  other  farms,  one  to  each  of  the  sons,  such  papers  do  not 
satisfy  the  statute  of  frauds  where  it  appears  that  the  deed 
specified  a  large  money  consideration,  and  the  will  made  no 
reference  whatever  to  the  alleged  agreement.  Sorber  t.  Mas- 
ters, 582. 

2.  Evidence  —  Sufficiency  —  Parol  evidence  —  Title  to  real 
estate — Contract  by  parent  to  convey  to  children — Consider- 
ation— Maintenance  of  home — Declarations — Exclusive  pos- 
session. 

Persons,  claiming  title  to  real  estate  by  virtue  of  an  oral 
contract  for  the  transfer  of  real  estate  by  a  parent  to  her  chil- 
dren, in  consideration  of  the  maintenance  of  a  common  home 
by  the  children  for  ihe  parent's  benefit,  must  establish  their 
claim  by  evidence  that  is  clear,  precise  and  indubitable. 

In  such  a  case  the  witnesses  depended  upon  to  prove  the 
contract  must  have  heard  the  bargain  when  made,  or  must 
have  heard  the  parties  repeat  it  in  each  other's  presence,  inas- 
much as  a  contract  cannot  be  inferred  from  the  declarations  of 
one  of  the  parties.  Exclusive  possession  must  be  shown  to 
have  been  assumed  by  the  sons  to  take  the  case  out  of  the 
statute.    Sorbs*  t.  Masters,  582. 

STOCK 

1.  Attachment  execution — Stock  of  corporation — Stipulation 
on  appeal — Interpleader  proceedings — Res  adjudicate — Parties. 
Dnquesne  Bond  Corp.  t.  Am,  8*  Co.  of  Jf.  Y.,  208. 

2.  Contract — Consideration  —  Mutuality  —  Stock  subscript 
'-'"n.    Hollo  t.  Mnt.  Union  Brewing  Co.,  584. 

8.  Corporations  —  Voting  stock  —  Ownership  —  Evidence. 
Bnqnesne  Bond  Co.  ▼.  Am.  ft.  Co.,  208. 

4.  Issue  of  stock  for  services  —  Directors  -—  Corporations. 
Colonial  Biscuit  Co.  ▼.  Orcntt,  40. 

Vol.  colxiv — 43 


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STOCK— continued. 

5.  Illegal  sale  of  stock  without  notice — Bailment — Brokers — 
Measure  of  damages — Conversion.    Beraeriea's  Ert^  437. 

6.  Pleading — Contract  to  organize  corporation — Writing — 
Oral  transfer  of  stock — Time  —  Consideration  —  Services  — 
Notice  to  perform  agreement.  Guaranty  M.  Co.  ▼.  Hmdford 
P.  8.  Co^  559. 

STOCKHOLDER. 

1.  Res  judicata — Parties — Corporation.  Maeam  t.  Scandi- 
navia Bolting  Co^  384. 

STREETS,  see  Road  Law. 

1.  Negligence — Automobiles — Street  crossing — Pedestrian — 
Contributory  negligence — Case  for  jury.  Healy  t.  Saedakar, 
512. 

2.  Street  cleaning — Municipalities  —  Municipal  contracts — 
Arbitration  clause — Repugnant  provisions.  Cnrran  t.  Fhila., 
111. 

STREET  RAILWAYS. 

1.  Negligence — Collision  of  car  with  wagon — Speed — Plead- 
ings— Declarations.  Gordon  t.  Fklla*  Rapid  Transit  Co., 
461. 

2.  Negligence — Collision  —  Crossing — Contributory  negli- 
gence— Nonsuit.  Boyden  ▼.  Pkila.  Jfc  West  Chaster  Traction 
COn  137. 

SUPREME  COURT,  see  Practice,  Supreme  Court. 

1.  Appeal — Question  not  raised  below.  Corporation  F.  ot 
F.  Co*  v.  Stoffregen,  215. 

SURCHARGE. 

1.  Executors  and  administrators — Liability  for  loss  of  a  re- 
tail liquor  business — Findings  of  fact — Review  on  appeal — 
Orphans'  court — Advice  of  counsel.  Mnmagkan's  Est.  (Jfo. 
1),  520. 

TAXATION. 

1.  Coal  lands — Appraisement — Foot  acres  standing — Act  of 
April  19, 1889,  P.  L.  37. 

While  -the  foot  acre  is  not  the  usual  standard  employed  in 
arriving  at  the  value  of  lands  for  the  purpose  of  assessment, 
it  will  he  accepted  where  the  parties  have  agreed  to  it,  or  do 
not  object  to  its  use. 

The  parties  on  appeal  from  a  tax  assessment  of  coal  lands 
hy  the  hoard  of  revision,  are  not  bound  to  adopt  the  method 


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TAXATION— continued. 

used  by  the  board;  any  fair  reasonable  basis  will  be  sufficient, 
if  the  result  enlightens  the  court  as  to  the  value  required  by 
law. 

The  board  of  revision  must  inquire  whether  the  assessment 
has  been  made  according  to  law,  and  the  property  to  be  valued 
has  been  so  valued  at  a  price  or  sum  not  less  than  it  would 
bring  at  a  public  sale  after  due  notice.  If  the  board  omits  by 
mistake  a  part  of  the  acreage,  the  court  of  common  pleas,  on 
appeal,  has  jurisdiction  under  the  Act  of  April  19,  1889,  P.  L. 
37,  to  add  the  omitted  acreage.  In  such  a  case  the  amount  is 
increased,  but  not  the  value. 

It  is  not  the  policy  of  the  law  to  permit  persons  to  escape 
taxation  through  an  omission  by  the  assessor  to  place  a  prop- 
erty in  assessment.  That  such  result  may  not  be  accomplished, 
courts  will  give  a  liberal  construction  to  those  acts  which  tend 
to  an  equalization  of  the  burden  of  taxation. 

In  making  the  assessment  the  taxing  authorities  may  con- 
sider what  has  been  the  average  yearly  output  of  coal  for 
several  years  preceding,  the  total  amount  of  coal  originally 
contained  in  the  tract,  what  remains  unmined  at  the  time  of 
the  assessment,  the  amount  of  the  royalties,  if  the  property 
is  under  lease,  and  the  number  of  years  it  will  probably  take  to 
exhaust  the  coal.  If  it  appears  that  the  owners  are  carrying 
away  coal  which  is  free  from  taxation  at  the  rate  of  thirty- 
two  acres  per  year,  they  have  nothing  of  which  to  complain. 
State  Line  *  Sullivan  R.  R.  C©.'»  Taxation,  489. 

2.  Mercantile  tax — Corporations — Vendors  of  coal — Princi- 
pal and  agent—Act  of  May  2,  1899,  P.  L.  181?— Words  and 
phrases — Del  credere  agent. 

A  vendor  within  the  meaning  of  the  Mercantile  Tax  Act  of 
May  2, 1899,  P.  L.  184,  is  one  who  buys  to  sell. 

A  corporation  with  power  to  buy  and  sell  coal  is  liable  for 
the  mercantile  tax  on  the  whole  volume  of  its  gross  sales,  as 
provided  by  the  Act  of  May  2,  1899,  P.  L.  184,  where  it  ap- 
pears that  it  dealt  directly  with  its  customers;  that  it  trans- 
mitted orders  received  from  them  to  the  operator;  that  the 
shipments  were  made  by  the  operator  according  to  the  com- 
pany's directions ;  that  the  coal  was  charged  and  billed  by  the 
operator  to  the  company,  and  by  the  company  to  its  customers ; 
that  it  collected  the  money  from  its  customers,  and  if  it  was 
not  paid  it  sued  in  its  own  name,  and  whether  the  money  was 
collected  from  the  customer  or  charged  off  as  a  loss,  the  com- 
pany made  up  to  the  operator  the  price  of  the  coal  as  its  own 


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TAXATION— continued. 

debt;  that  the  company  nerer  had  possession  of  the  coal  for 
the  account  of  the  operator,  but  that  the  deliveries  of  specific 
quantities  were  made  directly  to  customers  upon  its  direction; 
that  in  the  event  of  failure  to  accept  by  its  customers,  it  did 
not  return  the  coal  to  the  operator  nor  retake  it  for  the  oper- 
ator, but  resold  it  for  its  own  account;  that  the  company  was 
limited  to  a  profit  of  from  ten  to  fifteen  cents  a  ton  according  to 
the  size  of  the  coal ;  and  that  the  company  was  responsible  for 
all  bills,  and  in  the  event  of  insolvency  or  refusal  to  pay,  it  was 
bound  to  pay  the  bill. 

In  such  a  case  the  company  was  not  acting  merely  as  a  del 
credere  agent  working  under  a  fixed  commission,  but  was  a 
principal,  buying  and  selling  coal  on  its  own  account,  and 
therefore  subject  to  the  tax  provided  by  the  Act  of  Kay  2, 
1899,  P.  L.  184. 

The  fixed  commission  or  profits  of  ten  or  fifteen  cents  per 
ton  are  entirely  consistent  with  the  contract  of  sale  wherein 
profits  are  limited.  The  company  dealt  as  a  purchaser  of  coal 
without  assuming  the  burden  of  advancing  or  declining  market, 
and  dealt  in  a  safe  margin  of  profit  where  the  minimum  loss 
was  the  possible  insolvency  of  a  purchaser  which  could  gener- 
ally be  provided  against.    Com.  ▼.  Tkorme,  408. 

3.  Railroads — Leases — Dividends — Taxes.  Greem  4fc  Coatee 
St*,  etc,  By.  ▼.  Phil*.  B»  T.  Ce*,  424. 

TITLE. 

1.  Equity — Parties —  WiU  —  Presumption — Jurisdiction — 
Dismissal  of  bill  without  prejudice.    Craig  v.  Craig,  380. 

2.  Marketable  title — Estate  in  fee — Devise — WiU.  Oyler  ▼• 
Clements,  65. 

TEIAL,  see  Practice,  0.  P. 

1.  Appeals  —  New  trial  —  Abuse  of  discretion.  Kakm  ▼. 
Quaker  City  Cab  Co^  510. 

2.  Charge — Exception — Bequest  for  instructions. 

It  is  too  late  on  appeal  to  complain  of  instructions  of  the 
trial  judge,  where  no  exceptions  were  taken  to  the  instructions, 
and  the  request  of  the  judge  to  counsel  to  make  further  sug- 
gestions as  to  anything  he  omitted,  is  disregarded.  Kaka.  ▼. 
Quaker  City  Cab  Oo„  510. 

3.  Charge — Request  for  instruction. 

Where  a  trial  judge  has  in  his  general  charge  instructed  the 
jury  as  to  a  particular  subject,  it  is  not  error  for  him  to  refuse 
a  point  which  is  substantially  a  repetition  of  what  was  covered 
by  the  charge.    Baxter  t.  Fkila.  A  Beading  By.  Co*  467. 


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TBIAL— continued. 

4.  Instruction  to  jury— Conduct  of  parties — Action  for  libel. 

The  trial  court  committed  no  reversible  error  in  charging 
the  jury  in  a  libel  suit,  as  follows :  "It  is  rather  a  tame  affair 
on  the  whole  for  a  libel  suit,  which  we  expect  to  be  a  belliger- 
ent performance.  Both  the  lawyers  and  the  parties  have  be- 
haved throughout  with  exemplary  gentleness  and  gentility,  and 
the  hair  has  not  been  flying  or  the  blood  flowing  at  all  in  con- 
nection with  the  proceedings,  being  tried  in  a  very  genteel  and 
expeditious  manner,  starting  yesterday  afternoon  I  think,  and 
being  now  near  its  conclusion."    Wharen.  ▼.  Dersfcuck,  562. 

TBUSTS  AND  TBUSTEES,  see  Wills. 

1.  Pleading— Proof. 

An  alleged  trust  in  order  to  be  available  to  a  litigant,  must 
be  both  averred  and  admitted  or  proved.  Weisenberger  ▼• 
Huebner,  316. 

2.  Decedents'  estates — Family  settlement — Settlement  of 
will  contest — Executors  and  administrators.  Sofcwetast's  Est., 
855. 

8:  Life  estate — Expenditures  for  preservation  of  estate — Life 
tenant's  income — Res  adjudicata.  Wright  t.  Girard  Trust 
Co*,  22. 

4.  Spendthrift  trust — Active  trust — Husband  as  trustee  and 
beneficiary. 

Where  property  is  given  to  an  executor  with  certain  duties 
to  perform,  impressed  with  a  spendthrift  trust,  to  pay  to  him- 
self as  an  individual  the  income  for  life,  and  at  his  death  the 
estate,  corpus  and  income  goes  to  his  children,  or  others,  the 
trust  estate  in  the  corpus  and  in  the  income  is  not  in  any 
manner  destroyed,  nor  does  the  necessity  for  its  existence  cease 
during  the  life  estate.  The  income  still  remains  the  testator's 
property  until  it  is  actually  paid  to  the  beneficiary.  Fox's 
Est,  478. 

5.  Trustee  ex  maleficio — Fraud — Conveyance  by  mother  to 
son— Act  of  April  22,  1866,  P.  L.  588— Statute  of  frauds- 
Verbal  promise  as  to  real  estate. 

Where  a  mother,  to  protect  herself  from  liabilities  which 
she  might  incur  for  a  son,  executes  a  deed  of  real  estate  to  an- 
other son,  under  an  oral  agreement  that  he  would  reconvey  the 
property  to  her  on  demand,  and  the  grantee  admits  that  the 
understanding  between  him  and  his  mother  at  the  time  she 
executed  the  deed,  was  that  he  should  hold  the  title  for  her  pro- 
tection, and  not  as  the  absolute  owner  of  the  property,  the 
grantee  who  refuses  to  reconvey  holds  the  premises  as  trustee 


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.  TBUSTS  AND  TEUSTEES— continued. 

ex  maleficio  for  his  mother  under  the  Act  of  April  22,  1856, 
P.  L.  533,  and  after  the  death  of  his  mother  he  must  convey 
the  property  to  her  devisees. 

In  such  a  case  where  it  appears  that  the  mother  never  sur- 
rendered possession  of  the  property,  but  continued  to  act  as 
owner  of  it»  until  her  death,  and  her  executrix  after  her  death 
did  the  same,  a  verbal  promise  made  to  the  grantee  by  his 
mother,  that  he  might  retain  the  property  as  his  own,  is  within 
the  statute  of  frauds,  and  void.    Hateker  ▼.  Hateker,  105. 

TEUSTEE  EX  MALEFICIO. 

1.  Trusts  and  trustees — Fraud— Statute  of  frauds — Verbal 
promise  as  to  real  estate.    Hateker  ▼•  Hateker,  105. 

VESTED  AND  CONTINGENT  ESTATES. 

1.  Witts — Construction.    Eraae'e  Eat.  (Ho.  1). 

WAIVER 

1.  Corporations — Stock  subscriptions — Fraud.  Corporatiom 
Fmmdiag  St  P.  Oo.  ▼.  Stoffrecea,  215. 

2.  WUl — Annuity — Charge  on  land — Proceedings  to  charge 
— Deficiency  of  annuity — Lease — Estoppel.  Jokaetom'a  Est*, 
71. 

WARRANTY. 

1.  Contract — Sale — Acceptance  and  implied  warranty — No- 
tice— Sale— Contract.    Samuel  v.  DeL  River  Steel  Oo.,  190. 

2.  Sales — Trade  name — Custom  —  Inspection  —  Damages — 
Expenses.    Griffin  v.  Metal  Product  Oo.,  254. 

WILLS. 

1.  Annuity — Charge  on  land — Proceedings  to  charge — De- 
ficiency of  annuity — Lease— Waiver — Estoppel — Act  of  June 
7,  1917,  P.  L.  W. 

In  the  absence  of  an  express  restriction,  or  its  equivalent, 
the  corpus  of  an  estate  given,  subject  to  an  annuity,  may  be 
taken  for  its  payment  when  the  income  proves  insufficient. 
This  rule  is  not  affected  by  testator's  belief  that  the  income 
would  be  ample  to  pay  the  annuity. 

Where  testator  gives  to  his  wife  an  annuity  for  life  and 
directs  that  "the  same  shall  be  a  lien  upon  any  real  estate  of 
which  I  may  die  seized,"  and  after  giving  the  remainder  of  the 
income  of  his  estate  to  certain  persons  for  life,  further  directs 
that  the  corpus  of  his  estate  shall  be  divided  among  his  grand- 


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WILLS — continued. 

children  "subject  to  all  the  limitations,  previous  gifts,  and 
bequests  heretofore  set  forth,"  the  widow,  on  a  deficiency  of 
income  from  the  annuity,  is  entitled  to  proceed  under  the  Act 
of  February  24,  1834,  P.  L.  84  (incorporated  under  Section 
25  of  the  Fiduciaries  Act  of  June  7,  1917,  P.  L.  447)  to  have 
her  annuity  charged  upon  the  land. 

•  In  such  a  case  the  fact  that  the  widow  had  joined  with  the 
other  parties  in  interest  in  a  lease  of  the  principal  portion  of 
the  real  estate  for  a  term  of  years  at  a  large  rental,  will  not 
constitute  a  waiver  of  her  right  to  have  her  annuity  charged 
on  such  land,  although  it  might  estop  her  from  contesting  the 
lease.    Johnston's  Est.,  71. 

2.  Charitable  bequests — Unincorporated  society — Belief  of 
members  and  needy  persons  of  British  descent  in  City  of  Phila- 
delphia—Validity— Act  of  April  26,  1856,  P.  L.  S28,  Section 
11 — Death  within  thirty  days. 

A  bequest  to  an  unincorporated  society  having  for  objects 
the  relief  from  distress  of  its  own  members  and  all  other  needy 
persons  of  British  nativity  and  descent  in  the  City  of  Phila- 
delphia, and  to  promote  social  intercourse  among  its  members, 
is  a  bequest  for  a  charitable  use  and  therefore  void  under  the 
Act  of  April  26,  1855,  P.  L.  328,  where  the  will  was  executed 
within  thirty  days  before  testator's  death. 

The  fact  that  a  benevolent  society,  after  the  death  of  the 
testator,  made  certain  changes  in  its  by-laws  enlarging  the 
gocial  features  at  the  expense  of  its  charitable  purposes,  cannot 
be  taken  into  consideration  in  determining  whether  the  testator 
made  a  bequest  to  a  charitable  use,  since  the  society  could  not 
change  its  organic  law  or  prime  purpose  so  as  to  divert  chari- 
table funds  to  other  uses.    Lawson's  Est.,  77. 

3.  Construction — Codicil  reducing  legacies — Absolute  or 
conditional. 

The  reduction  of  a  legacy  given  in  a  will  by  a  codicil  pro- 
viding "in  order  to  avoid  a  possible  deficiency,  which  may  grow 
out  of  the  shrinking  of  investments,  I  reduce  some  of  the 
legacies  in  my  will  as  follows,"  with  a  further  provision  that 
where  legacies  were  reduced,  the  will  should  read  as  though  the 
reduced  sum  had  been  in  the  first  instance  provided  for  is  abso- 
lute, and  not  merely  conditional  upon  a  shrinkage  of  assets  so 
as  to  render  the  estate  insufficient  to  pay  the  legacies  in  full. 
Provost's  Est*  25. 

4.  Construction — Devise  to  children  and  their  survivors. 
By  a  provision  in  a  will  referring  to  a  trust  fund,  "I  further 

direct  that  after  the  death  of  my  sons  and  daughters  the  same 


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WILLS— continued. 

shall  become  vested  in  their  respective  children  or  their  legal 
representatives  in  such  manner  and  in  such  proportions  as  my 
said  sons  and  daughters  shall  respectively  by  their  last  wills 
and  testaments  direct  and  appoint;  and  in  default  of  such 
will  and  appointments,  shall  descend  and  vest  agreeably  to  the 
laws  regulating  intestate  estates.  And  in  case  any  of  my 
children  shall  die  without  lawful  issue  living  at  his  or  her 
death,  then  the  share  or  shares  of  such  deceased  child  or  chil- 
dren shall  be  paid  over  to  the  survivor  or  survivors  of  them, 
share  and  share  alike/'  the  testator  intended  that  in  case  any 
of  his  children  should  die  without  leaving  issue  at  the  time  of 
his  or  her  death,  the  share  of  such  child  should  be  paid  to  the 
survivor  or  survivors  of  them  immediately  upon  the  death  of 
each  son  and  daughter  as  it  occurred,  and  the  words  "after 
the  death  of  my  sons  and  daughters"  cannot  be  taken  to  mean 
after  the  death  of  all  of  them.    Roberta  v.  Moorkead,  299. 

5.  Construction — Estate  in  fee  simple — Gift  to  daughter — 
Death  in  lifetime  of  testator — Substitutionary  gift. 

Where  a  testator  gives  the  "absolute  control"  of  all  of  his 
estate  to  his  wife  together  with  the  profits  and  income  thereof, 
subject  to  the  comfortable  living  and  support  of  his  daughter, 
and  in  case  of  the  death  of  the  daughter  in  the  wife's  lifetime, 
then  to  the  wife  in  fee  simple,  but  if  the  daughter  outlives  the 
wife,  then  the  absolute  control  of  the  property  remaining  at 
the  death  of  the  wife,  to  the  daughter  together  with  the  profits 
and  income  thereof  as  long  as  she  lives,  and  at  her  death  to  her 
heirs  is  a  gift  in  fee  simple  to  the  daughter,  surviving  the 
testator  and  his  wife,  and  is  not  cut  down  by  a  subsequent 
clause  of  the  will  providing  that  in  case  the  daughter  "should 
die  leaving  no  issue  of  her  body  living  at  her  death,"  then  the 
property  shall  vest  in  fee  simple  in  other  persons  named. 

Such  latter  clause  is  not  a  limitation  or  curtailment  of  the 
devise,  but  is  §imply  alternative  or  substitutionary,  and  to 
take  effect  only  on  the  death  of  the  daughter  in  testator's  life- 
time.   Stark's  E*t-,  232. 

6.  Construction — Vested  and  contingent  estates. 

Where  the  testatrix  gave  the  residue  of  her  estate  to  a  trustee 
to  pay  the  income  to  her  sister  for  life,  and  upon  the  death  of 
the  life  tenant,  to  pay  and  divide  two-fifths  of  the  income 
among  six  children  of  the  life  tenant  by  name,  for  their  respec- 
tive lives  and  after  the  death  of  each  of  the  said  children,  then 
to  pay  a  representative  portion  of  the  capital  to  his  children, 
if  any  then  living,  and  the  issue  of  any  then  deceased;  and 
in  case  there  shall  be  no  such  child  or  issue  of  deceased  child 


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INDEX.  681 

WILLS— continued. 

then  living  of  the  nephew  30  dying,  then  in  trust  to  pay  the 
game  to  the  other  children  of  the  sister  who  may  then  be  living, 
and  if  none  of  such  children  or  issue  of  deceased  children  be 
then  living,  then  over,  the  gift  to  the  children  of  the  life  tenant 
is  not  vested  but  is  contingent  upon  their  surviving  the  life 
tenant.    Evaaa's  Eat.  (No.  1),  357. 

7.  Decedents'  estates — Domiciles  of  decedent — Intention — 
Declaration  in  will — Evidence — Existing  circumstances — Pro- 
bate of  will — Family  or  principal  residence.  Wlasor's  Eat* 
552. 

8.  Decedents'  estates — Widow's  exemption — Appraisement — 
Election  to  take  under  will — Gift .    Carroll's  Est*  140.  * 

9.  Deeds — Power — Execution  of  power — Intention — Parties 
—Equity— Act  of  June  k,  1879,  P.  L.  88. 

Under  the  Act  of  June  4,  1879,  P.  L.  88,  a  power  contained 
in  a  deed  is  executed  by  a  will  of  earlier  date  than  the  deed, 
unless  a  contrary  intention  appears  by  the  will. 

Under  the  law  as  it  existed  before  the  passage  of  that  act  the 
question  as  to  whether  or  not  a  will  was  an  execution  of  a 
power  of  appointment  was  one  of  intention  to  be  gathered  from 
the  language  of  the  will  itself,  and  unless  it  referred  either  to 
the  power,  or  the  property  the  subject  of  the  power,  or  it  would 
have  no  operation  except  as  an  execution  of  the  power,  the 
will  would  not  be  treated  as  an  execution  thereof.  On  the 
other  hand  under  the  act  the  will  operates  as  an  execution 
of  the  power  unless  a  contrary  intention  appears  by  the  will 
itself. 

One  who  has  no  interest  in  a  fund,  cannot  be  heard  to  com- 
plain that  it  was  not  awarded  to  the  right  party.  Poaaa.  Go. 
for  In*,  on  L,  ft  O,  Aaaaitioa  Aooonat,  433. 

10.  Devise — Estate  in  fee — Marketable  title. 

Where  a  testator  gives  to  his  daughter,  her  heirs  and  as- 
signs, one-fourth  of  all  his  estate,  and  later  in  his  will  says  "I 

request  the  executors to  grant  and  convey  by  deed  my 

home  and  house  and  thirty  acres  where  I  now  live  to  my 
daughter for  $1500  payable  out  of  her  interest  and  be- 
quest given  to  her  in  this  will,,,  and  the  daughter  elects  to 
take  the  homestead,  a  deed  to  her  by  the  executors  gives  to 
her  a  good  marketable  title  in  fee,  not  affected  by  a  later  clause 
in  the  will,  which  directs,  that  "when  my  daughter  and  her 
husband  die  all  the  bequests  I  leave  to  my  daughter  that  is  in 
their  possession  shall  fall  back  to  the  original"  and  be  divided 
between  two  persons  specified.    Oyler  v.  Clement*,  65. 


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682  INDEX. 

WILLS — continued. 

11.  Equity — Parties — Title — Presumption  —  Jurisdiction— 
Dismissal  of  bill  without  prejudice.    Oral*  ▼.  Craig,  380. 

12.  Power  of  sale — Conversion. 

Where  a  testator  gives  his  estate  to  his  executors  in  trust  to 
pay  the  income  to  his  wife  for  life,  and  after  her  death  to  pay 
the  income  of  his  brother  for  life  and  further  provides  that 
"for  the  better  management  and  final  distribution  of  my  estate 
I  authorize  and  empower  (and  after  the  decease  of  my  wife  and 
brother  which  ever  shall  last  happen)  order  and  direct  my 
executors  to  sell  and  dispose  of  the  whole  or  any  part  of  my 
real  estate,"  the  direction  to  sell  after  the  death  of  the  wife 
and  brother,  works  a  conversion  of  the  real  estate  into  money, 
and  after  the  death  of  the  wife  and  brother,  it  is  properly  dis- 
tributed as  such.    KeuWi  Est.,  422. 

13.  Testamentary  character  of  paper — Specific  performance. 
It  is  not  error  for  the  orphans'  court  to  construe  a  paper  as 

testamentry  in  character,  and  to  refuse  specifically  to  enforce 

it,  where  the  writing  states:  "I  will  give  my  home to"  a 

woman  named  "for  special  favors  and  honest  kind  work  and 

good  service during  the  last  three  months  and  before. 

she  shall  have  my  home  which  I  promised  to  her for 

staying  with  me.    to  the  end  of  my  life.    I  order  my  executor 

to  sign  said  deed and  after  my  death  to  hand  and 

deliver  said  deed  to  her."  In  such  a  case  what  is  to  be  done  to 
make  the  writing  effective,  is  to  be  done  by  the  executor. 
IonVi  Eat*  58. 

WORKMEN'S  COMPENSATION. 

1.  Contract  as  to  wages  of  a  minor — Express  contract—Im- 
plied contract — Deduction  for  materials  and  tools — Improper 
findings— Act  of  June  2,  1916,  P.  L.  736. 

Where  in  a  proceeding  under  the  Workmen's  Compensation 
Act,  to  secure  compensation  for  the  death  of  plaintiff's  hus- 
band, a  miner,  it  appears  that  the  deceased  was  paid  regular 
wages  of  $22  per  week  for  about  six  months,  less  a  deduction 
for  supplies  and  tools  amounting  in  the  aggregate  to  $49.33 
without  objection  by  him  for  such  deduction,  it  is  reversible 
error  for  the  referee,  the  workmen's  compensation  board  and 
the  court  of  common  pleas  to  decline  to  make  any  deduction 
for  supplies  and  materials,  in  determining  the  wages  as  a 
basis  for  compensation,  on  the  ground  that  there  was  no  express 
agreement  in  the  contract  of  hiring  for  such  deduction. 

In  such  a  case  an  implied  agreement  may  be  inferred  from 
the  conduct  of  the  parties.    This  is  a  question  of  law  to  be 


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WOBKMEN'S  COMPENSATION— continued. 

passed  upon  by  the  court  below,  and  the  case  will  be  remanded 
to  that  court  to  pass  upon  the  question  of  the  existence  of  the 
implied  contract,  should  the  ascertained  facts  be  found  suf- 
ficient therefor;  if  not,  to  remand  the  record  to  the  compensa- 
tion board  with  instructions  to  find  further. 

The  legislature  did  not  purpose  to  confine  hiring  contracts 
with  which  the  act  deals  to  express  contracts,  to  the  exclusion 
of  contracts  which  arise  by  implication  of  law  where  no  express 
contract  exists,  but  yet  where  circumstances  are  shown  which, 
according  to  the  ordinary  course  of  business  dealings  and  the 
ordinary  understanding  of  men,  show  a  mutual  intention  to 
contract.    Reitmyer  v.  Goxe,  372. 

2.  Findings  of  board — Conclusiveness  of  findings. 

In  a  proceeding  under  the  Workmen's  Compensation  Act  by 
a  widow  to  recover  damages  for  the  death  of  her  husband,  a 
finding  of  the  compensation  board  that  the  deceased  died  of 
natural  causes,  and  that  there  was  no  evidence  that  there  had 
been  "any  accident  at  all,"  is  conclusive  upon  the  court.  Me- 
Gmrrin  v.  Hudson  Coal  Co.,  230. 

8.  Finding  of  fact  by  compensation  board — Review  by  court. 

A  finding  of  fact  by  the  referee  approved  by  the  compensa- 
tion board,  to  the  effect  that  a  deceased  workman  was  engaged 
in  the  course  of  his  employment  at  the  time  of  the  accident 
which  resulted  in  his  death,  is  one  of  fact,  and  will  not  be  re- 
viewed by  the  court.    Gallagher  v.  Walton  Mfg.  Co.,  29. 

4.  Finding  of  fact — Referee — Issues — Accident — Interstate 
commerce — Review  by  court. 

In  a  proceeding  under  the  Workmen's  Compensation  Act 
where  the  defendant  contends  that  the  injury  was  caused  while 
the  workman  was  engaged  in  interstate  commerce  the  referee 
should  make  a  finding  as  to  whether  or  not  the  injury  occurred 
in  the  course  of  interstate  employment. 

No  compensation  can  be  awarded  under  the  Pennsylvania 
Workmen's  Compensation  Act  for  injury  caused  while  the 
workman  was  engaged  in  interstate  commerce. 

Where  the  referee  concluded  that  it  was  immaterial  whether 
the  accident  occurred  while  the  employee  was  engaged  in  inter- 
state commerce  and  failed  to  find  whether  or  not  the  injury 
occurred  in  the  course  of  interstate  employment  the  compensa- 
tion board  upon  appeal  should  have  held  the  conclusion  error, 
and,  either  made  findings  of  fact,  upon  a  hearing  de  novo  upon 
that  issue,  or  sent  the  record  back  to  the  referee  with  directions 
to  make  a  finding  based  upon  the  issues. 

Upon  an  appeal  from  an  award  of  the  compensation  board 


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WOBKMEN'S  COMPENSATION— continued. 

the  findings  and  conclusions  only  are  before  the  court  for  re- 
view, and  where  there  are  no  findings  upon  the  controlling 
points  the  court  should  remand  the  record  to  the  board  with 
directions  to  make  findings  rather  than  decide  the  issues  from 
the  evidence,  inasmuch  as  the  statute  contemplates  that  all  \ 
findings  of  fact  shall  be  made  by  the  compensation  authorities 
and  not  by  the  courts.    Belli?  v.  Erie  B.  R.  Co.,  327.  \ 

5.  Medical  services — Refusal  of  medical  services — Change  of  j 
physicians — Injury — Violence  to  physical  structure  of  body —  ! 
Act  of  June  2, 1915,  P.  L.  736. 

The  words  "shown  to  have  resulted  from  such  refusal"  in 
paragraph  E  of  Section  306,  of  the  Workmen's  Compensation 
Act  of  June  2,  1915,  P.  L.  736,  modify  the  preceding  word 
"injury"  as  well  as  the  preceding  word  "increase"  so  as  not  to 
deprive  the  claimant  of  all  compensation  for  his  refusal  to  ac- 
cept medical  services  from  his  employer,  but  only  to  compensa- 
tion for  injury  or  increase  of  incapacity  caused  by  the  refusal 
to  accept  medical  assistance.  The  mere  fact  that  the  claimant 
has  dismissed  a  physician  engaged  by  his  employer,  and  en- 
gaged another,  will  not  deprive  him  absolutely  of  all  compensa- 
tion for  his  injuries. 

The  fact  that  section  301  of  the  act  provides  that  the  terms 
"injury"  and  "personal  injury"  as  used  in  the  act  should  be 
construed  to  mean  only  violence  to  the  physical  structure  of 
the  body,  and  such  disease  or  infection  as  naturally  results 
therefrom,  does  not  change  the  construction. 

Malpractice  may  constitute  a  violence  to  the  physical  struc- 
ture of  the  body,  and  disease  or  infection  may  naturally  result 
from  refusal  to  accept  the  reasonable  surgical  or  medical  serv- 
ices tendered  to  an  injured  employee.  Near?  v.  Fail*.  Coal 
Co.,  221. 

6.  Railroads — Death — Interstate  cars. 

In  a  proceeding  under  the  Workmen's  Compensation  Act 
against  a  railroad  company  to  recover  damages  for  the  death 
of  an  employee  of  the  defendant,  where  the  defendant  sets  up 
as  a  defense,  that  the  deceased  was  engaged  in  moving  inter- 
state commerce  cars  at  the  time  he  was  killed,  a  finding  of  the 
compensation  board  is  conclusive,  which  in  effect  was  that  the 
cars  of  coal  in  the  train,  upon  which  the  deceased  was  work- 
ing, were  being  transported  from  the  mines  to  different  yards 
within  the  State,  for  the  convenience  of  the  shipper,  and  that 
the  subsequent  shipments  of  any  of  them  upon  which  the 
deceased  had  worked  to  a  point  without  the  State,  were  made 


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INDEX.  fS5 

WOBKMEN'S  COMPENSATION— continued. 

after  his  death,  and  after  the  train  crew  with  which  he  had 
worked,  had  severed  its  connection  with  the  cars.  Hancock  ▼• 
Phila.  *  Readies  By.  Co.,  220. 

7.  Referee's  findings  of  fact — Review  by  compensation  board 
— Hearing  de  novo. 

The  Workmen's  Compensation  Board  cannot  reverse  an 
award  of  compensation  upon  an  appeal  from  the  referee's  find- 
ings of  fact  without  a  hearing  de  novo.  Tigue  v.  Forty  Fort 
Coal  Co.,  590. 

8.  Referee's  findings — Jurisdiction  of  Workmen's  Compensa- 
tion Board — Evidence — Death — Accidental  violence  to  physical 
structure  of  the  body — Disease. 

Under  the  Pennsylvania  Workmen's  Compensation  Act  of 
June  2, 1915,  P.  L.  736,  an  injury  resulting  in  death,  need  not 
arise  out  of  or  he  due  to,  the  workmen's  employment;  it  is 
sufficient  if  it  happens  in  course  thereof. 

Where  a  workman  dies  in  the  course  of  his  employment  from 
a  rupture  of  the  aorta  caused  by  "an  extra  effort  in  vomiting," 
the  rupture  itself  would  constitute  an  accidental  violence  to 
the  physical  structure  of  the  body  within  the  broad  meaning  of 
that  term  as  defined  by  the  courts. 

If  death  comes  during  the  course  of  employment,  in  an  ordi- 
nary way  natural  to  the  progress  of  a  disease  with  which  one  iB 
afflicted,  and  with  which  he  was  stricken  before  the  accident, 
there  can  be  no  recovery;  but  if  the  death  is  brought  about 
by  an  injury  due  to  some  mishap,  or  accident,  happening  dur- 
ing the  course  of  his  employment,  the  fact  that  deceased  had  a 
chronic  ailment  which  rendered  him  more  susceptible  to  such  an 
injury  than  an  ordinary  person  would  be,  will  not  defeat  the 
right  to  compensation. 

Where  a  referee  finds  that  a  miner  died  in  the  course  of  his 
employment,  from  a  rupture  of  the  aorta  "caused  by  an  extra 
effort  in  vomiting,"  such  finding  will  support  an  award  in  favor 
of  the  claimant,  and  it  cannot  be  set  aside  by  the  Workmen's 
Compensation  Board,  without  a  hearing  de  novo. 

In  such  a  case  the  question  is  not  as  to  the  existence  of  evi- 
dence, which  in  the  opinion  of  the  board  would  justify  it  in 
connecting  the  vomiting  with  the  death,  but  was  there  any 
evidence  which,  within  the  bounds  of  reason,  possibly  could  be 
held  to  sustain  the  referee's  findings  connecting  the  vomiting 
with  the  death?  If  such  evidence  appeared,  then,  albeit  the 
board,  on  a  hearing  de  novo,  might  draw  other  inferences  there- 
from, and  reach  conclusions  differing  from  those  upon  the 


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686  INDEX 

WOBKMEN'S  COMPENSATION— continued. 

record  before  it,  yet,  in  the  absence  of  such  a  hearing,  it  was 
beyond  the  power  of  that  body  so  to  do;  and  on  the  pending 
appeal,  it  was  likewise  beyond  its  power  to  reverse  the  referee 
on  the  theory  that  he  had  erred,  as  a  matter  of  law,  in  drawing 
deductions  from  the  testimony  differing  from  those  which 
could  have  been  made  by  the  board.  Clark  v.  Lehigh  V«L 
C.  Co*  629. 


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