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HARVARD  LAW  LIBRARY 


ReceivedJUL  6         1918 


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'  J 


h 


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PENNSYLVANIA 


STATE    REPORTS. 


VOL.  259 


CONTAINING 


CASES  DECIDED 


■Y  THE 


Supreme  Court  of  ^ennsiplbanta, 


MAY  AND  OCTOBER  TERMS  1917.  AND 
JANUARY  TERM,  1918 


REPORTED  BY 


'^AM  I.  SCHAFFER. 


rTATE  REPORTER. 


^.  GEO.  T.  BISEL  CO., 
PHILADELPHIA, 
1918. 


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Oopyriglit  191& 

By  OTBUS  B.  WOODS,  Bkutabt  or  thb  Oommonwialtb, 

For  liie  Bute  of  FemajlwudML 


JUL  6     1918 


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JUSTICES 


or  THI 


SUPREME    COURT  OF    PENNSYLVANIA 

DURING  THE  PERIOD  OF  THESE  REPORTS. 


~~~ 

* 

Chief  Justice,    •    , 

►    .    J.  Hay  Brown. 

Justice,    .    , 

,    •    S.  Leslie  Mestrezat. 

Justice,    .    , 

.    .    WiLLUM  P.  Potter. 

Justice,    . 

.    .    John  Stewart. 

Justice,    . 

.     .     RoBBRt  WfH  MOSOHZISKBR 

Justice,    . 

.    .    Robert  S,  Frazer. 

Justice,    • 

.    .    Emory  A.  WALUNa 

ATTC 

)RNEY  GENERAL, 

Hb.Fi 

UNGis  Shunk  Browjt. 

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JUDGES 


or  THK 


SUPERIOR  COURT  OF  PENNSYLVANIA 


DURING  THE  PERIOD  OF  THESE  REPORTS. 


President  Judge,    .    .    . 

•    Gborqb  B.  Orladt. 

Judge,    .    • 

.     .     WlLUAM  D.  PORTn. 

Judge,    .    • 

.    •    John  J.  Hindkrbon. 

Judge,    .    . 

.    .    John  B.  Head. 

Judge,    •    • 

,    .    John  W,  Eiphart. 

Judge^    •    •    . 

.    .    Frank  IL  Trbzlbb. 

Judge^    •    • 

.    .    J.  Hbnrt  Wiluams. 

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JUDGES  OF  THE  COURTS  BELOW 

DURING  THE  PERIOD  OF  THESE  REPORTS. 
DI8T. 

Ist — ^Philadelphia  County. 

Courts  of  Common  Pleas. 

No.  1:  F.  Amedee  Breoy,  P.  J.;    John  M.  Patterson  and 

William  H.  Shoemaker,  JJ. 
No.  2:  NoRRis  S.  Barratt,  P.  J.;    Henry  N.  Wessel  and 

Joseph  P.  Rogers,  JJ. 

No.  3:  Charles  B.  McMichael,  P.  J.;  William  C.  Ferguson 

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

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

MONAGHAN,  JJ. 

Orphans'  Court, 
Joseph  F.  Lamorelle,  P.  J.,  Edward  A.  Anderson,  Charles 
Francis  Gummey  and  John  M.  Qest,  J  J. 
2d — ^Lancaster  County.  ^ 

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

Orphans'  Court, 

Eugene  Q.  Smith,  P.  J. 
3d — ^Northampton  County. 

Russell  C.  Stewart,  P.  J. ;  William  M.  McKeen,  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, 
Jambs  R.  Macfarlane,  Thomas  J.  Ford,  Joseph  M.  Swear- 
ingen,  Thomas  D.  Carnaiian,  Josuh  Cohen,  John  C.  Hay- 
maker, Ambrose  B.  Reid,  J.  McF.  Carpenter  and  Henry  G. 
Wasson,  JJ. 


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▼i  JUDGES  OP  THE  COURTS  BBlLOW. 

Orphans^  Court 

James  W.  Over,  P.  J.;  J.  J.  M^ler  and  Thomas  P.  Trimble, 
JJ. 
6th — Erie  County. 

Uruh  p.  Rossiter,  p.  J. ;  Edward  L.  Whittelsey,  J. 
7th — Bucks  County. 

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

Herbert  W.  Ci:mmixc;s,  P.  J.;  Fred  B.  Moser,  J. 
9th — Cumberland  County. 

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

LuciEN  W.  Doty,  P.  J. ;  Alex.  D.  McConnell.  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,  .J J. 

Orphans'  Court, 

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

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

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

John  Q.  Van  Swearinokx,  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. 
ICth — Somerset  County. 

W^lLLIAM  H.  RUPPEL,  p.  J. 

17th — Union  County  and  Snyder  County. 

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

G.  G.  Sloan,  P.  J. 
10th— York  County. 

Nkvtx  M.  Wanner,  P.  J.;  N.  Saroent  Ross,  J. 
20th — ^Huntin^don  County,  Mifflin  County  and  Bedford  County. 

Thomas  F.  Bailey,  P.  J. 


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JUDGES  OF  THE  COURTS  BELOW,     ▼!! 

2l8tr— Schuylkill  County. 

Court  of  Common  Pleas, 
Harry  O.  Bechtel,  P.  J.;  Richard  H.  Koch  and  Charles  E. 
Berger,  JJ.  , 

Orphans'  Court, 
MacHenry  Wilhelm,  P.  J. 
22d— Wayne  County. 

Aloxzo  T.  Searle,  p.  J. 
23d— Berks  County. 

Court  of  Common  Pleas, 
Gl'Stav  a.  Endlich,  P.  J.;  Geo.  \V.  Wacner,  J. 

Orphans'  Court, 

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

Thomas  J.  Baldrige,  P.  J. 
25th — Clinton  County,  Cameron  County  and  Elk  County. 

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

John  G.  Harm  an,  P.  J. 
27th — Washin^n  County. 

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

George  R.  Criswei.l,  P.  J. 
29th — I^cominf?  County. 

Harvey  W.  Whitehead,  P.  J. 
30th— Crawford  County. 

Thomas  J.  Prather,  P.  J. 
3l8t — Lehigh  County. 

Clinton  A.  Groman,  P.  J. 
32d — Delaware  County. 

Isaac  Johnson,  P.  J.;  William  B.  Broohall,  J. 
33d — Armstrong  County. 

J.  W.  King,  P.  J. 
34th — Susquehanna  County. 

Andre>v  B.  Smith,  P.  J. 
35th — Mercer  County. 

James  A.  McLaughry,  P.  J, 
36th— Beaver  County. 

George  A.  Baldwin,  P.  J. 
37th — Warren  County  and  Forest  County  • 

Watson  D.  Hinckley,  P.  J. 
38th — ^Montgomery  County. 

Court  of  Common  Pleas. 
Aaron  S.  S wartz,  P.  J. ;  John  Faber  Miller,  J. 


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▼iii  JUDGES  OP  THE  COURTS  BELOW. 

Orphans'  Court. 

William  F.  Solly,  P.  J. 
39th— Franklin  County. 

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

J.  N.  Laxgham,  p.  J. 
41st — Juniata  County  and  Perry  County. 

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

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

Samtel  E.  Shull,  p.  J. 
44th — Wyoming  County  and  Sullivan  County. 

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

Court  of  Common  Pleas. 

Henry  M.  Edwards,  P.  J.;   Edward  C.  Newcomb  and  James 
J.  0'Neu.l,  JJ. 

Orphans'  Court. 

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

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

Marlin  B.  Stephens,  P.  J.;  Francis  J.  O'Connor,  J. 
48th — MeKean  County. 

Joseph  W.  Bolton,  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. 
53d — ^Lawrence  County. 

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

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

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

Laird  H.  Barber,  P.  J. 


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TABLE 


OF 


CASES  REPORTED  IN  THIS  VOLUME. 

Page 

Adoption,    llelcii   Frances 

Young's,    Adoption,    573 

Aland  v,  Cluett,  Peabody 

&  Co.,  Contracts, 364 

Anderson  v.  Kern, Mortgages,    81 

Anthony,  Com.  v Criminal  Law, 65 

Anthracite    Brewing    Co., 

Yeager  v Negligence,    123 

Appeal,    Moore   &    Hourl- 

gan's    Equity  Practice,  ....  117 

B.  &  O.  R.  R.  Co.,  Leon- 
ard V Negligence,  51 

Bank,      Dollar      Savings, 

Com.  V Constitutional  Law, . .  138 

Farmers  Nat.,  W.  F. 
Gonder  and  Newton 

Gonder  y, Banks  and  Banking, . .  197 

First  Nat.,  v.  Gitt  and 

Delone,    Partnerships,   84 

People's  Nat.j  Hamil- 
ton V Trusts  and  Trustees,  .  220 

Barclay's  Estate,  Jurisdiction,  O.  C.,. . .  401 

Baur      V.      Wilkes-Barre 

Light  Co., Equity  Practice 117 

Beaver  Trust  Co.  v.  Mor- 
gan,         Principal  and  Surety,.  567 

Bell's  Petition,  Real  Property, 495 

(ix) 


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X  TABLE  OF  CASES  REPORTED. 

Page 
Benefit     Assn.,     Supreme 
Council  Cath.  Mut.  Laf- 

ferty  v Beneficial  A  s  s  o  c  i  a- 

tions,    452 

l^ergendahl-KnigUt       Co., 

Swartz  V Negligence,  421 

Berkey,  Bowman  v Judgments, 327 

Snyder  v Municipalities,    489 

Berry,  Drake  v Mines  and  Mining,  ...       8 

Boro.,  Carrick,  Pittsburgh 

Rys.  Co.  V Boroughs,   333 

Ferndale,  Vickroy  v. .     Boroughs,   321 

St.  Clair,  v.  Tamaqua 
ft    Pottsville    Elec. 

By.  Co Jurisdiction,  C.  P.,  . .  462 

Bowman  v.  Berkey, Judgments,    327 

Brewing  Co.,  Anthracite, 

Yeager  v Negligence,  123 

Kittanning,  Glenn  v. .      Corporations,    510 

Pittsburgh,  Bryne  v..      Negligence,    357 

Brown  v.  Kittanning  (May 

Products  Co., Negligence, 2G7 

Bruggeman  v.  York, Negligence,  94 

Buckley  v.  Holmes, Elections,    17G 

Butler  Junction  Coal  Co., 

Clark  V Negligence,  262 

Byrne  v.  Pittsburgh  Brew. 
Co.,    Negligence,  357 

Cab  Co.,  Excelsior  Express 

and  Standard,  Puhlman 

V Negligence,  393 

Cameron,  Com.  v Public  Officers, 209 

Camp  V.  John, ,     Judgments,    38 

Campbell  v.  Vincent Negligence, 419 

Carrick  Boro.,  Pittsburgh 

Rys.  Co.  V Boroughs,   333 

Carson,  Dewar  v.  — Deeds, , , 599 


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TABLE  OF  CASES  REPOKTED.        xi 

Page 
Chabot  V.  Pittsburgh  Plate 

Glass  Co., Negligence, 504 

Clark  V.   Butler  Junction 

Coal  Co.,   Negligence, 262 

Clay  Products  Co.,  Kittan- 

niug,  Brown  v Negligence, 267 

Cluett,     Peabocly    &     Co., 

Aland  v Contracts, 364 

Coal  Co.,  Butler  Junction, 

Clark  V Negligence, 262 

Oliver,    Pittsburgh 

Block  Coal  Co.  v. . .     Contracts, 290 

Pittsburgh    Block,    v. 

Oliver  Coal  Co.  ...     Contracts, 290 

Coal  &  Coke  Co.,  Diamond, 

Fulginiti  v Practice,  C.  P., 344 

Jamison,  Jelic  v Negligence, 447 

Coal  &  Iron  Co.,  Jefferson 

&  Clearfield,  Rakie  v. .         Workmen's     Compen- 
sation Law, 534 

Com.  V.  Anthony, Criminal  Law, 65 

V.  Cameron,  Public  Officers, 209 

T.  Delfino, Murder, 272 

V.  Dennery,  Criminal  Law, 223 

V.    Dollar    Savings 

Bank,    Constitutional  Law,  . .  138 

V.  N.  Shore  R.  R.  Co., .     Receivers,   155 

V.  Schwarzschild,  ....     Taxation,   130 

v.  Strickler,   Cities, 60 

V.  Weber,  Criminal  Law, 592 

V.  Wooley Criminal  Law, 249 

Contracting    Co.,     Robei-i 
Grace     v.     Norfolk     & 

West.  Ry.  Co Contracts, 241 

Corbin  v.  Millers  Mut.  Fire 

Ins.  Co., Fire  Insurance, 106 

Coasette  v.  Paulton  Coal 
Min.  Co., Negligence, 520 


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xii  TABLfi  OP  CASES  REPORTED. 

Page 

Cross  V.  Dye, Wills  and  Devises,  . . .  207 

Croyle  v.  Johnstown  Water 

Co.,   Water  Companies,  . . .  484 

Delfino,  Com.  v Murder, 272 

Dennery,  Com.  v Criminal  Law, 223 

Dewar  v.  Carson, Deeds,    599 

Diamond  C.  &  C.  Co.,  Ful- 

giniti  V rrattii:e,  C.  P., 344 

Dollar  Savings  Bank,  Com. 

V,   Constitutional   Law,. .   138 

Drake  v.  Berry, Mines  and  Mining,  . .       8 

Duquesne  Light  Co.,  Faulk 

V.  V Negligence,    389 

Dye,  Cross  v Wills  and  Devises, . . .  207 

Dzikowska      v.      Superior 

Steel  Co., AVorkmen*8  Compensa- 
tion Law, 578 

I 

Edmundson's  Estate, Contracts,  ,. 429 

Engineering  Works, 
Penna.,  v.  New  Castle 
Stamping  Co.,   Corporations,   378 

Estate,  Barclay's Jurisdiction,  O.  C,  . . .  401 

Edmundson's   Contracts, 429 

Fetrow's AVills, 89 

HoUinger's   Decedents'  Estates, . .  72,  75 

Kutz's Equity, 548 

McKeown's Wills, 210 

McWilliams' Wills, 520 

May's Wills, 115 

Montgomery's   Statute  of  Limitations,  412 

NeePs Wills, 190 

Springer's Decedents'  Estates,. . .     46 

Westinghouse,       M  c  - 

Mullin  V Corporations, 281 

Young's Real  Estate,  ........;  206 


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TABLE  OP  CASES  REPORTED.  xiii 

Page 
Excelsior      Express     and 
Standard  Cab  Co.,  Puhl- 

man  v Negligence, 393 

Express  and  Standard  Cab 
Co.,  Excelsior,  Puhlman 
V Negligence, 393 

Farmers  Nat.  Bank,  W.  F. 

Gondor      and      Newton 

Gonder  v.  .  * Banks  and  Banking, . .   197 

Faulk  V.  Duquesne  Light 

Co.,    Negligence 389 

Femdale  Boro.,  Vickroy  v.     Boroughs,   321 

Fetrow's  Estate, Wills, 89 

Fire      Extinguisher      Co., 

Gen.,  Moran  v Negligence,  168 

First    Nat.   Bank   v.   Gitt 

and  Delone, Partnerships, 84 

Falginiti  v.  Diamond  C.  & 

C.  Co., Practice,  C.  P., 344 

Furlow  V.  Roland, Decedents'  Estates, ...     70 

Gas  Co.,  Tri-County  Nat, 

Mintz  V Contracts, 477 

G^n.     Fire     Extinguisher 

Co.,  Moran  v Negligence, * . . .   108 

Gretkin  v.  Penna.  R.  R.  Co.,     Railroads, 150 

Gitt  and  Delone,  First  Nat. 

Bank  v Partnerships, 84 

Glass       Co.,       Pittsburgh 

Plate,  Chabot  v Negligence,  504 

Glenn  v.  Eittanning  Brew. 

Co., ( 'orporatioiiH, 510 

Gonder,  W.  F.  and  Newton, 

y.  Farmers  Nat.  Bank. .  Banks  and  Banking,. .  197 
Grace     Contracting     Co., 

Robert,    v.    Norfolk    & 

West  Ry.  Co., Contracts, 241 


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xiv       TABLE  OP  CASES  REPORTED. 

Pftge 

Griffith  V.  McKeever, Real  Property, 605 

Hamilton  t.  People's  "SbX, 

Bank, Trusts  and  Trustees,  .  220 

Helen     Prances     Young's 

Adoption, Adoption, 573 

Henning,  Hunter  v Set-oflf, 347 

Herron  v.  Stevenson, Mortgages, 354 

HoUinger's  Estate, Decedents'  Estates, . .  72, 75 

Holmes,  Buckley  v Elections, 176 

Hunter  v.  Henning, Set-oflf, 347 

Hurst,  Mylin  v Wills, 77 

Ins.  Co.,  Millers  Mut.  Pire, 

Corbin  v Fire  Insurance, 106 

Investigation    of    Paul   J. 

Sherwood,  Re Attorneys,    254 

Irvin,  Naugle  v Wills, 214 

Jacoby  v.  Pittsburgh  Rys. 

Co., Street  Railways, 558 

Jamison  C.  i  C.  Co.,  Jelic 

V '  N^ligence, 447 

Jeflferson  &  Clearfield  C.  & 

I.  Co.,  Rakie  v Workmen's  Compensa- 
tion Law, 534 

Jelic  V.  Jamison  C.  &  C. 

Co., Negligence, 447 

John,  Camp  v Judgments,    38 

Johnstown      Water      Co., 

Croyle  v Water  Companies,    . .  484 

Kann  v.  Kann, Contracts,    583 

Kennedy  v.  Meyer, Constitutional  Law,. .  306 

Kent,  Oelrich  v Negligence,    407 

Kern,  Anderson  v Mortgages,    91 

Kicinko  v.  Petruska, Church  Law, 1 


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TABLE  OF  CASES  REPORTED.  xy 

*  *  •  ■  Page 
Kittanning      Brew.      Co., 

Glenn  v Corporations,    510 

Kittanning  Clay  Products 

Co.,  Brown  v N^ligence,    267 

Krenn  v.  Pittsbargh,  C,  C. 

&  St.  L.  By.  C Negligence,    443 

Kntz's  Estate, Equity,    548 

LafFerty  v.  Supreme  Coun- 
cil Cath.  Mut.  Ben.  Assn.     Beneficial  A  s  s  o  c  i  a- 

tions,   •  452 

Lamb  v.  Penna.  R.  R.  Co., .     Negligence,    536 

I^eonard  v.  B.  &  O.  R.  R. 

Co.,   Negligence,    51 

Light       Co.,       Duquesne, 

Faulk  V Negligence,    389 

Light    Co.,    Wilkes-Barre, 

Baur  V Equity  Practice,  ....  117 

McCUntic  V.  McClintic,  . . .     Wills,   112 

McKeever,  GriflSth  v. Real  Property,  605 

McKeown's  Estate, Wills, 216 

McMullin  V.  Westinghouse 

Estate, Corporations, 281 

McWilliams'  Estate, Wills,    526 

May's  Estate, Wills,   115 

Meyer,  Kennedy  v Constitutional  Law,  .  306 

Millers  Mut.  Fire  Ins.  Co., 

Corbin  v Fire  Insurance, 106 

Mining  Co.,  Paulton  Coal, 

Cossette  v Negligence, 520 

Mintz  V.  Tri-County  Nat. 

Gas  Co., Contracts,    477 

Montgomery's  Estate,  ....  Statute     of     Limita- 
tions,     412 

Moore  and  Hourigan's  Ap- 
peal, ..,.,..,., Equity  Practice,  . . . ,  117 


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xvi  TABLE  OF  CASES  CITED. 

Pag# 

Moran  v.  Gen.  Fire  Extin- 
guisher Co., Negligence,    168 

Morgan,  Beaver  Trust  Co. 
V Principal  and  Surety,  567 

Murray  v.  Smith, Practice,  Supreme  Ct.,  518 

Mylin  v.  Hurst, Wills,   77 

Nangle  v.  Irvin, Wills,    214 

NeePs  Estate, Wills,    190 

New  Castle  Stamping  Co., 
P  e  n  n  a.  Engineering 
Works  V Corporations,    378 

Noecker  v.  Woods, Constitutional  Law, . .  160 

Nomination  Papers,  Town 
Meeting  Party Elections, 231,  240 

Norfolk  &  West.  Ry.  Co., 
Robert  Grace  Contract- 
ing Co.  V Contracts,    241 

North  Shore  R.  R.  Co., 
Com,  V Receivers,   155 

Notopolos,  Williams  v.  . . .     Landlord  and  Tenant,  469 

Oelrich  v.  Kent, Negligence, 407 

Oil  Co.,  Producers'  &  Re- 
finers', Ramage  v Negligence, 491 

Oliver  Coal  Co.,  Pittsburgh 

Block  Coal  Co., Contracts, 290 

Paulton    Coal    Min.    Co., 

Cossette  v Negligence, 520 

Penna.  Engineering  Works 
V.  New  Castle  Stamping 

Co., Corporations, 378 

Penna.  R.  R.  Co.,  Getkin 

V Railroads, 150 

Lamb  v Negligence, 536 

Royer  v Negligence, 438 

Vocca  V Negligence, 42 

Waltosh  V Negligence, 372 


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TABLE  OF  CASES  REPORTED.  xvii 

Page 

Penna.  W.  &  P.  Co.,  Van- 

dersloot  v Equity  Jurisdiction,  .     99 

People's  Nat  Bank,  Ham- 
ilton V Trusts  and  Trustees,  .  220 

Peoples  Trust  Co.  v.  Safe 

Dep.  &  Trust  Co., Equity,    62 

Petition,  BelFs, Real  Property, 495 

Petruska,  Kacinko  v Church  Law,  1 

Pittsburgh    v.    Pittsburgh 

Rys.  Co., Street  Railways, 558 

Pittsburgh  Block  Coal  Co. 

V.  Oliver  Coal  Co., Contracts, , .  290 

Pittsburgh      Brew.      Co., 

Byrne  v Negligence, 357 

Pittsburgh,  C,  C.  &  St.  L. 

Ry.  Co.,  Krenn  v Negligence, 443 

Pittsburgh  Plate  Glass  Co., 

Chabot  V Negligence, 504 

Pittsburgh  Rys.  Co.  v.  Car- 
rick  Boro.,   Boroughs,   333 

Jacoby  v Street  Railways, 558 

Pittsburgh  v Street  Railways, 558 

Producers'  &  Refiners'  Oil 

Co.,  Ramage  v Negligence, 491 

Pnhlman  v.  Excelsior  Ex- 
press and  Standard  Cab 
Co., Negligence, 393 


R.  R.  Co.,  B.  &  O.,  Leonard 

V Negligence, 51 

N.  Shore,  Com.  v.  . . .  Receivers,   155 

R.  R.  Co.,  Penna.,  Getkin  v.  Railroads, 150 

Lamb  v Negligence, 536 

Royer  v Negligence, 438 

Vocca  V , Negligence, 42 

Waltosh  V Negligence, 372 


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xviu  TABLE  OF  CASES  REPORTED. 

Pag« 

Ry.  Co.,  Norfolk  &  West., 
Robert  Grace  Contract- 
ing Co.  V Contracts, 241 

Ry.  Co.,  Pittsburgh,  C,  C. 
&  St.  L.,  Royer  v Negligence, 443 

Ry.  Co.,  Tamaqua  &  Potts- 
ville  Elec.,  St.  Clair 
Boro.  V Jurisdiction,  C.  P.,  • .  462 

Rys.    Co.,    Pittsburgh,    v. 

Carrick  Boro., Boroughs,  333 

Jacoby  v Street  Railways, 558 

Pittsburgh  v ,     Street  Railways, 558 

Rakie  v.  Jefferson  &  Clear- 
field C.  &  I,  Co., Workmen's     Compen- 
sation Law, 534 

Ramage  v.  Producers'  & 
Refiners'  Oil  Co., Negligence, 491 

Real  Estate  Co.,  Tratford, 
Rohi-er  v Real  Estate, 297 

R^  Investigation  of  Paul  J. 
Sherwood, Attorneys, ^ . . .  254 

Richmond,  Van  v Master  and  Servant,  .  300 

Robert  Grace  Contracting 
Co.  V.  Norfolk  &  West. 
Ry.  Co., Contracts, 241 

Rohrer  v.  Trafford  Real 
Estate  Co.,  Real  Estate 297 

Roland,  Purlow  v. Decedents'  Estates,  . .     70 

Royer  v.  Penna.  R.  R.  Co.,     Negligence, 438 

St.  Clair  Boro.  v.  Tamaqua 
&  Pottsville  Elec.  Ry. 
Co., Jurisdiction,  C.  P.,  . .  462 

Safe  Dep.  &  Trust  Co., 
Peoples  Trust  Co.  v.  . .  ^     Equity,    62 

Schwarzschild,  Com.  v.  .•     Taxation, 130 

Sherwood,  Re  Investiga- 
tion of  Paul  J., Attorneys, 254 


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TABLE  OP  CASES  REPORTED.  xix 

Pago 

Smith,  Murray  v * . .     Practice,   Supreme 

Court,    518 

V.  Young,   Statutes,  367 

Snyder  v.  Berkey, Municipalities, 489 

Springer's  Estate, Decedents'  Estates,  . .     46 

Stamping  Co.,  New  Castle, 
P  e  n  n  a.       Engineering 

Works  V Corporations, 378 

Steel   Co.,   Superior,   Dzi- 

kowska  V Workmen's     Compen- 
sation Law, 578 

Stevenson,  Herron  v Mortgages,    354 

Strickler,  Com.  v Cities,    60 

Sui)erior    Steel    Co.,    Dzi- 

kowska  V Workmen's     Compen- 
sation Law, 578 

Supreme  Council  Cath. 
Mut.  Ben.  Assn.,  Laffer- 

ty  V Beneficial  A  s  s  o  c  i  a- 

tions,    452 

Swartz      V.      Bergendahl- 

Knight  Co., Negligence, 421 

Tamaqua  &  Pottsville  Elec. 
Ry.  Co.,  St.  Clair  Boro. 
V lurisdiction,  C.  P.,  . .  462 

Town  Meeting  Party  Nomi- 
nation Papers, Elections,    231, 240 

Township,  Zerbe,  Trevor- 
ton  Water  Supply  Co.  t.     Contracts, 31 

Trafford  Real  Estate  Co., 

Rohrer  v Real  Estate, 297 

Trevorton    Water    Supply 

Co.  V.  Zerbe  Twp., Contracts, 31 

Tri-County  Nat.  Gas  Co., 

Mintz  V Contracts, 477 


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XX       TABLE  OF  CASES  REPORTED. 

Page 
Trust  Co.,  Beaver,  v.  Mor- 
gan,         Principal  and  Surety,  567 

Peoples,  V.  Safe  Dep. 
&  Trust  Co., Equitj^,    62 

Van  V.  Biehmond, Master  and  Servant,  .  300 

Vandersloot  v.  Penna.  W. 

&  P.  Co., Equity  Jurisdiction,  .  99 

Vickroy  v.  Ferndale  Boro.,  Boroughs,   321 

Vincent,  Campbell  v Negligence, 419 

Vocca  V.  Penna.  R.  R.  Co.,  Negligence, 42 

W.  F.  Gonder  and  Newton 

Gonder  v.  Farmers  Nat. 

Bank, Banks  and  Banking,  .   197 

Waltosh  V.   Penna.   R.   R. 

Co., Negligence, 372 

Water     Co.,     Johnstown, 

Croyle  v Water  Companies,  . . .  484 

Water    &    Power    Co., 

Penna.,  Vandersloot  v.  .  Equity  Jurisdiction,  .  09 
Water  Supply  Co.,  Trevor- 
ton,  V.  Zerbe  Twp., Contracts, 31 

Weber,  Com.  v Criminal  Law, 592 

Westinghouse  Estate,  Me- 

Mullin  V Corporations, 281 

Wilkes-Barre    Light    Co., 

Baur  V Equity  Practice,   117 

Williams  v.  Notopolos,  . . .     Landlord  and  Tenant,  469 

Woods,  Noecker  v Constitutional  Law,  .   160 

Woolcy,  Com.  v Criminal  Law, 249 

Yeager  v.  Anthracite 

.  Brewing  Co., Negligence, 123 

York,  Bruggeman  v Negligence, 94 

Young's   Adoption,    Helen 

Prances, Adoption,    573 

Young's  Estate, Real  Estate, 206 


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TABLE  OP  CASES  REPORTED.       xxl 

Page 
YooBg,  Smith  t.  . . .  • Statutes,  367 

Zerbe     Twp.,     Trevorton 

Water  Supply  Ca  t.  . . .     Contracts, 4 . .  •  •    81 


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CASES  CITED 

IN  THE 

OPINIONS  OF  THE  SUPREME  COURT. 


Page 

Adams  v.  Euehn,  119  Pa. 
76,    433 

Ahl's  Appeal,  129  Pa.  26,  .     88 

Ahl  v.  Liggett,  246  Pa.  246,    80 

Allegheny  County  Commis- 
sioners' Case,  61  Pa.  Su- 
perior Ct.  591, 810 

Allison  Manfg.  Co.  v.  Mc- 
Cormick,  118  Pa.  519,  . .  173 

Anderson  v.  Rys.  Co*,  251 
Pa.  517, ;..  303 

Appeals  of  Fross  and 
Loomis,  105  Pa.  258,  ....  356 

Armstrong  v.  Michener,  160 
Pa.  21 80 

Arnold  v,  Muhlenberg  Col- 
lege, 227  Pa.  821. 80 

Attorney  General  v.  Provi- 
dent Institution,  Etc.,  201 
Mass.  23, 145 

B.  &  O.  R.  R.  Co.  V.  Public 

Service    Commission,    66 

Pa.  Superior  Ct.  403,  ...  467 
Bailey's    Estate,    241    Pa. 

230, 339 

Bailey  v.  Philadelphia,  167 

Pa.  569, 320 

Bakes  v.  Reese,  150  Pa.  44,  356 
Bannon  v.  Lutz,   158   Pa. 

166, 427 

Barry  v.  Jones  &  Laughlin 

Steel  Co.,  234  Pa.  367,  . .  427 
Batten    v.    State,    80   Ind. 

894, 252 

Beale's  Executors  v.  Kirk's 

Administrator,     84     Pa. 

415, 41 

Seayer  Boro.  v.  Beaver  Val. 

R.  R.  Co.,  217  Pa.  280, 

84,342 


Page 
Bedford's  Appeal,  40  Pa.  23,  114 
Beetem  v.  Getz,  5  Pa.  Su- 
perior Ct.  71, 74 

Behling   v.    S.    W.   Penna. 

Pipe  Lines,  160  Pa.  359,  97 
Bell's  Appeal,  4  Sadler  423,  587 
Bellas  V.  Vanderslice,  8  S.  & 

R.452, 587 

Bellafvue  Boro.  v.  Ohio  Val- 
ley Water  Co.,  245  Pa. 

114, 466 

Berecz   v.    Greek    Catholic 

Church,  3  West.  L.  J.  151,  7 
Bernstein  v.  Penna.  B.  R. 

Co.,  252  Pa.  581, 446 

Bethlehem    Water    Co.    v. 

Bethlehem  Boro.,  253  Pa. 

333, 468 

Bigley  v.  Williams,  80  Pa. 

107, 270 

Blackman  v.  Com.,  124  Pa. 

578, 596 

Bland  v.  Tipton  Water  Co., 

222  Pa.  285, 488 

Blanch  v.  Johnstown  Water 

Co.,  247  Pa.  71, 487 

Bloomsburg   v.    Gerli,    225 

Pa.  256, 437 

Bly    V.    White    Deer    Mt. 

Water  Co.,  197  Pa.  80,  . .  488 
Blymire  v.  Boistle,  6  Watts 

182, 433 

Boalsburg    Water    Co.    v. 

State  College  Water  Co., 

240  Pa.  198, 488 

Boltz  V.  Muehlhof,  37  Pa. 

Superior  Ct.  375, 481 

Bower  v.  Walker,  220  Pa. 

294, 587 

Breen  v.  I^.  Co.,  220  Pa. 

612, 342 

(xxiii) 


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XXIV 


TABLE  OP  CASES  CITED. 


Page 
Brothers   y.    Mitchell,    157 

Pa.  484, 57 

Browarsky*8  Estate,  252  Pa. 

35, 77 

Brownell  v.  Oviatt,  215  Pa. 

514, 83 

Bruch  V.  Philadelphia,  181 

Pa.  588 421 

Buck  y.  Mut.  B.  &  L.  Assn., 

49  Pa.  Superior  Ct.  128,  587 
Buckland's  Estate,  239  Pa. 

608, 74 

Byrne  v.  Kansas  City,  Etc., 

R.  R.  Co.,  61  Fed.  Rep. 

605, 400 

Calhoun's  Estate,  6  Watts 

185, 50 

Carlstadt     Nat.     Bank     v. 

Hasbrouck    Heights,    83 

N.  J.  L.  383, 312 

Carr  v.  General  Fire  Ex- 
tinguisher  Co.,    224   Pa. 

346, 428 

Carroll  v.  Penna.  R.  R.  Co., 

12  W.  N.  C.  348, 377 

Carson   v.    Fuhs,    131    Pa. 

256 80 

Chester  City  v.  Black,  132 

Pa.  568, 319 

Childerston  v.  Hammon,  9 

S.  &  R.  68, 482 

Christman  v.  Martin,  7  Pa. 

Superior  Ct.  568, 588 

Cleveland  &  Pittsburgh  R. 

R.  Co.  V.  Speer,  56  Pa. 

325, : . . .  341 

Coal    &    Iron    Ry.    Co.    v. 

Reherd,    204    Fed.    Rep. 

859, 249 

Cochran  v.  Cutter.  18  Pa. 

Superior  Ct.  282, 482 

Coleman's   Appeal,   75   Pa. 

441, 103 

Coll  V.  Westinghouse  E.  & 

M.  Co.,  230  Pa.  86, 128 

Com.  V.  Andrews,  234  Pa. 

597,   230,  279 

V.  Bala  &  Bryn  Mawr 

Tpk.  Co..  153  Pa.  47,  33^ 
V.  Bubnis,  197  Pa.  542.  277 
V.  Clark,  7  W.  &  S.  127.  165 


Page 
Com.  V.  Deitrick,  221  Pa. 

7,   253,  276 

V,   Fitzpatrick,   1   Pa. 

Superior  Ct.  518,  ..  277 
V.  Franklin  Canal  Co., 

2i  Pa.  117, 122 

v.    Garanchoskie,    251 

Pa.  247, 252 

V.  Qarrito,  222  Pa.  304,  280 
V.  Gerade,  145  Pa.  289,  253 
V.  Greene,  227  Pa.  86,  .  253 
V.  Haines,  257  Pa.  289,  230 
v.Handley,106Pa.245,  167 
V.  Harding,  87  Pa.  343,  167 
V.  Heck,  251  Pa.  39,  . . .  167 
V.  Hyneman,   242  Pa. 

244         313 

V.  Kaiser!  184  Pa.'  4^3,  231 
V.  Martin,  21  Pa.  C.  C. 

Reps.  422, 239 

V.  Maxwell,  27  Pa.  444,  166 
V.  Polichinus,  229  Pa. 

311, 278 

V.  Potts,  241  Pa.  325,  .  231 
V.  Powell,  249  Pa.  144,  147 
V.  Racco,  225  Pa.  113,  277 
V.  Razmus,  210  Pa.  609,  280 
V.    Salyards,    158    Pa. 

601, 277 

V.  Walton,  236  Pa.  220,  314 
V.  Wasson,  42  Pa.  Su- 
perior Ct.  38, 280 

V.  Wickett.  20  Pa.  Su- 
perior Ct.  350, 277 

.    V.  Williams,  41  Pa.  Su- 
perior Ct.  326, 277 

V.  Woodward,  102  Mass. 

155, 252 

Commonwealth  T.  I.  &  T. 
Co.   V.    Seltzer,    227   Pa. 

410, 518 

Coolbroth  v.  Penna.  R.  R. 

Co.,  209  Pa.  433, 376 

County  Commissioners'  Pe- 
tition, 255  Pa.  88, 311 

Cramond  v.  Bank,  1  Binn. 

64 482 

Crane  v.  Reeder,  22  Mich. 

322, 189 

Crelier  v.  Mackey,  243  Pa. 

363, 474 

Crofton    V.    St.    Clement's 
Church,  208  Pa.  209,  ...  603 


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TABLE  OF  CASES  CITED. 


XXV 


Page 
Cunningham  v.  Dunlap,  242 

Pa.  341, 314 

V.    Fort    Pitt    Bridge 
Works,  197  Pa.  625,  267 
Cunnius  v.  Beading  School 
IMst.,206  Pa.  469, 145 

Danhouse's  Estate,  130  Pa. 

256, 607 

Danner  v.  Wells,  248  Pa. 

105, 428 

Davey  v.  Buffell,   162  Pa. 

443, 371 

Dean  v.  Penna.  B.  B.  Co., 

129  Pa.  514, 44 

Dempsey  v.  Buck  Bun  Coal 

Co.,  227  Pa.  571, 526 

Dempster  v.  United  Trac- 
tion Co.,  205  Pa.  70, 35 

Detroit  v.  Detroit  City  By. 

Co.,  54  Fed.  Bep.  1,  ....  260 
Devers  v.   York   City,   150 

Pa.  208, 316 

Dewar  v.    Carson,    67   Pa. 

Superior  Ct.  527, 603 

Dickinson  v.  A.  O.  U.  W., 

159  Pa.  258, 460 

Dickinson       v.       McGraw 

Bros.,  151  Pa.  98, 437 

D'Jorko  V.  Berwind-White 

Co.,  231  Pa.  164, 526 

Donley  v.  Pittsburgh,   147 

Pa.  348, 315 

Donovan  v.  Laing,  1  Q.  B. 

629, 399 

Douglass  V.  N.  Y.  Cent.  & 

H.  B.  B.  B.  Co.,  209  Pa. 

228   ^     98 

Drak^  V.  Lacoe,  167  Pa.  17,  30 
Durkin   v.    Kingston    Coal 

Co.,  171  Pa.  193, 626 

Dwyer   v.   Dwyer,   26   Mo. 

App.  647, 271 

Earhart  v.  Marshall,  233 
Pa.  366, 501 

Eastlick  v.  So.  By.  Co.,  116 
Ga.  48, 271 

Ebling  V.  Schuylkill  Haven 
Bore.,  244  Pa.  605, 8 

Electric  Co.  v.  Electric  Co., 
200  Pa.  616, 517 

Elliott  V.  Allegheny  Coun- 
ty Light  Co.  204  Pa,  568,    97 


Page 
EUison  V.  L.  &  N.  R  Co., 

112  Fed.  Bep.  805, 260 

Ellmaker  v.  Franklin  Fire 

Ins.  Co.,  6  W.  &  S.  439,  .  247 
Ely  V.  Pittsburgh,  C,  C.  & 

St  L.  By.  Co.,  158  Pa. 

233, 375 

Equitable  Mortgage  Co.  v. 

Watson,  119  Ga.  280,  ...  271 
Erie  &  N.  E.  B.  B.  Co.  v. 

Casey,  26  Pa.  287, 122 

Ex    parte     Steinman    and 

Hensel,  95  Pa.  220, 259 

Fawcett  v.  Bigley,  59  Pa. 

411, 270 

Fearl  v.  Johnstown,  216  Pa. 

205, 501 

Feldman  v.  Gamble,  26  N. 

J.  Eq.  494, 589 

Felt  V.  Felt,  19  Wis.  193,  .  189 
Fern  v.  Penna.  B.  B.  Co., 

250  Pa.  487, 127,  296 

Fidelity    T.    &    T.    Co.    v. 

Chapman,  226  Pa.  312,  .  41 
Fiesel  v.  N.  Y.  Edison  Co., 

123  App.  Div.  676, 108  N. 

Y.  Supp.  130, 363 

Finnerty  v.  Burnham,  205 

Pa.  305, 427 

Finney's   Appeal,    113   Pa. 

11, 74 

First  Nat.  Bank  v.  Tustin, 

246  Pa.  151, 474 

Fischer  v.  American  Legion 

of  Honor,  168  Pa.  279,  .  460 
Flower  v.  Penna.  B.  B.  Co., 

69  Pa.  210, 361 

Flynn   v.   Pittsburgh   Bys. 

Co.,  234  Pa.  335, 446 

Foltz  V.  Tradesmen's  Trust 

&  S.  F.  Co.,  201  Pa.  583,  857 
Fortney  v.  Breon,  245  Pa. 

47, 58 

Foster  v.  Fox,  4  W.  &  S.  92,  570 
Foy's  Election,  228  Pa.  14,  578 
Franklin  Film  Mfg.  Corp., 

263  Pa.  422, 677 

Fries  v.  Null,  164  Pa.  678,  370 

Galashevsky  v.  Camden 
Fire  Ins.  Co.,  63  Pa.  Su- 
perior Ct,  611, 484 


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XXM 


TABLE  OP  CASES  CITED. 


Page 

Gantt  v.  Cox  &  Sons  Co., 
199  Pa.  208, 276 

Garrison  v.  Armstrong  & 
Co.,  248  Pa.  402, 428 

Gehr  v.  Iron  Co.,  174  Pa. 
430, 388 

Geist  V.  Rapp,  206  Pa.  411,  428 

General  Motors  Truck  Co. 
V.  Philadelphia  Paving 
Co.,  248  Pa.  499, 474 

Genin  v.  IngersoU,  11  W. 
Va.  649, 689 

German  Nat.  Bank  v.  Fore- 
man, 138  Pa.  474, 352 

Gilbcrson  v.  Patterson  Mills 
Co.,  174  Pa.  369, 270 

Gillespie  v.  Blair  Glass  Co., 
189  Pa.  50, 388 

Gilroy's  Appeal,  100  Pa.  5,  122 

Giordano  v.  St.  Paul  F.  & 
M.  Ins.  Co.,  63  Pa.  Su- 
perior Ct  233, 484 

Golden  v.  Mt.  Jessup  Coal 
Co.,  225  Pa.  164, 526 

Graft  V.  B.  &  O.  R.  R.  Co., 
6  Sad.  (Pa.)  94, 163 

Graham  v.  Com.,  51  Pa. 
255, 596 

Greed  v.  Manufacturers'  L. 
&  H.  Co.,  238  Pa.  248,  ...     59 

Greek  Catholic  Church  v. 
Orthodox  Greek  Church, 
195  Pa.  425» 6 

Gregory  v.  Com.,  121  Pa. 
611, 41 

Griel  v.  Buckius,  114  Pa. 
187, 484 

Groves  v.  McNeil,  226  Pa. 
345, 428 

Gutterson  and  Gould  v. 
Lebanon  I.  &  S.  Co.,  151 
Fed.  Rep.  72, 385 

Hague  V.  Philadelphia,  48 

Pa.  527 37 

Hall  V.   Simpson,  203  Pa. 

146, 526 

Hamnett  v.  Bom,  247  Pa. 

418, 299 

Harker  v.  Conrad,  12  S.  & 

R.  301 588 

Hart  V.  Evans,  8  Pa.  13,  . .     56 


Page 

Hawk  y.  Geddis,  16  S.  &  B. 

28, 670 

Haverford  Twp.  v.  Wilf ong, 

60  Pa.  Superior  Ot  214,  .  35 
Hechelman   v.   Geyer,   248 

Pa.  430, 617 

Heppenstall   v.    Leng,'  217 

Pa.  491, 601 

Hermann  v.  R.  I.  Co.,  36  R. 

L  447, 45 

Herr  v.  Lebanon,  149  Pa, 

222, 98 

Hibert   v.    Lang,    165    Pa. 

439,   350,  482 

Hilton  V.  Sims,  45  Ga.  565,  689 
Hoag    &    Alger    v.    Lake 

Shore  &  Mich.  So.  R  R. 

Co.,  86  Pa.  293, 97 

Hoar  V.  Wood,  3  Met.  193,  260 
Hoffa  V.  Hoffa,  38  Pa.  Su- 
perior Ct.  366, 435 

Hogarty  v.  P.  &  R.  R.  Co., 

255  Pa.  236, 163 

Hollenberger     v.     Yankey, 

146  Pa.  179, 608 

Holt  V.  Bodey,  18  Pa.  207,  571 
Hopkins  v.   Tate,  255  Pa. 

56, ..483 

Home  &  Co.  v.  Petty,  192 

Pa.  32, 437 

Howes  V.  Scott,  224  Pa.  7,  433 
Howard  v.  B.  &  O.  R.  R. 

Co.,  219  Pa.  358, 377 

Hull  V.  Del.  &  Hudson  Co., 

256  Pa.  233,   516 

Hummel  v.  Lilly,  188  Pa. 

463, 41 

Hunter  v.  Henning,  64  Pa. 

Superior  Ct.  366, 349 

Hutchinson  v.  Dennis,  217 

Pa.  290, 601 

Independence  Party  Nomi- 
nation, 208  Pa.  108, 577 

In  re  Diamond  St.,  196  Pa. 
264, 578 

In  re  Graffius,  241  Pa.  222,  259 

In  re  Martin,  209  Pa.  266,  371 

Jack  V.  Klepset,  196  Pa. 
187, ,,,,,  363 


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TABLE  OP  GASES  CITED. 


XXYU 


Page 
Johnson  v.  Jones,  244  Pa. 

386, 299 

V.  P.  &  R.  R.  Co.,  163 

Pa.  127, 153 

y.  Bobbins,  20  La.  An- 
nual 569, 586 

Jones  V.   Amer.   Can   Co., 

242  Pa.  611, 128 

Juniata  W.  &  W.  P.  Co.  v. 
Wilson  Elec.  Co.,  226  Pa. 
407, 122 

Keefer  v.  Pacific  Mut.  Life 

Ins.  Co.,  201  Pa.  448,  . .  59 
Kelber  v.  Pittsburgh  Nat. 

Plow  Co.,  146  Pa.  485,  . .  329 
Kincaid's   Appeal,    66    Pa. 

411, 122 

King  V.  L.  V.  R.  R.  Co., 

245  Pa.  25, 98 

Knickerbocker   Ice    Co.   v. 

Penna.  R.  R.  Co.,  253  Pa. 

54, 280 

Kountz  V.  Kennedy,  63  Pa. 

187, 330 

Kreamer  v.   Fleming,    191 

Pa.  634, 607 

Kreusler  v.  McKees  Rocks 

School  Dist.,  256  Pa.  281,  320 

Laing  v.  Colder,  8  Pa.  479,  o^ 
Landell   v.   Hamilton,    175 

Pa.  327, 603 

Larkin  v.  Watt,  32  S.  W. 

(Texas)  552, 589 

Larrison's   Appeal,   36   Pa. 

130, 74 

Latta  v.  Philadelphia,  249 

Pa.  39, 57 

Lee's  Appeal,  124  Pa.  74,  .  77 
Leechburg  B.  &  L.  Assn.  v. 

Kinter,  233  Pa.  354,  ....  248 
Leonhardt  v.  Green,  251  Pa. 

579, 128 

Lerner  v.  Philadelphia,  221 

Pa.  294, 421 

Lewis*  Appeal,  (Pa.)  10  At- 
lantic Rep.  126, 677 

Lewis   &   Nelson's   Appeal, 

67  Pa.  153, 7 

Likins's  Petition,  223   Pa. 

456, 313 


Page 
Lindemann    v.    Pittsburgh 

Rys.  Co.,  251  Pa.  489,  .. .  303 
Lindsay  v.  Dutton,  227  Pa. 

208, 84 

Lithgow  V.  Supreme  Tent, 

Etc.,  165  Pa.  292, 460 

Llewellyn  v.  Wilkes-Barre, 

254  Pa.  196, 421 

Luckett   v.    Reighard,    248 

Pa.  24, 271 

Luxeme  Water  Co.  v.  Toby 

Creek  Water  Co.,  148  Pa. 

568, 371 

McCauley  v.  Keller,  130  Pa. 

53, 246 

McCloskey,  v.  Kirk,  243  Pa. 

319, 603 

McCormick  v.  Berkey,  238 

Pa.  264, 501 

V.  Sypher,  238  Pa.  185,    80 
McCoy  V. .  Scott,  2  Rawle 

222, 356 

McCullough     y.     Johnetta 

Coal  Co.,  210  Pa.  222,  114 
V.  Railway  Mail  Assn., 

225  Pa.  118, 105 

McDowell's  App.,  4  Penny. 
3g4 ....  387 

McDowell  V.  Tyson,  14  S. 

&  R.  299, 482 

McGrann  v.  N.  Lebanon  R. 

R.  Co.,  29  Pa.  82, 246 

McKeever  v.  Westinghouse 

E.  &  M.  Co.,  194  Pa.  149,  128 
McKenna    v.    William    H. 

Nixon  Paper  Co.,  176  Pa. 

306, 173 

McNight  V.  Kreutz,  51  Pa. 

232, 476 

McLane  v.  Pittsburgh  Rys. 

Co.,  230  Pa.  29, 58 

McLaughlin    v.    Corry,    77 

Pa.  109, 128 

McNair's  Appeal,  4  Rawle 

148 50 

Mt  Union  Boro.  v.  Mt.  Un- 
ion Water  Co.,  256  Pa. 

616, 466 

Malone  &  Son  v.  P.  &  R.  R. 

Co.,  167  Pa.  430, 248 

Marcus  v.  Heralds  of  Lib- 
erty, 241  Pa.  429, 466 


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ZXYIU 


TABLE  OP  CASES  CITED. 


Page 
Marsh  v.  Piatt,  221  Pa.  431,  80 
Marshall  Avenue,  213  Pa. 

616, 320 

Martin  v.  Draher,  6  Watts 

544, 588 

V.  Kline,  157  Pa.  473, 

332,473 

Mayers  v.  Atlantic  Ref.  Co., 

254  Pa.  544, 428 

Mazaika  v.  Grauczuuas,  229 

Pa.  47, 6 

Meigs  V.  Lewis,  164  Pa.  697,  603 
Mellick  V.  Williamsport,  162 

Pa.  408, 320 

Mercer  v.  Tift,  79  Ga.  174,  589 
Mesta  Machine  Co.  v.  Dun- 
bar Furnace  Co.,  250  Pa. 

472, 146 

Mier  v.  Citizens  Water  Co., 

250  Pa.  536, 487 

Mildren  v.  Nye,  240  Pa.  72,  501 
Miller  v.  Leflore,  32  Miss. 

634, 586 

V.     Ovcftseers     of    the 
Poor,  17  Pa.  Superior 

Ct.  159,  , 41 

V.  Trevilian,  2  Robin- 
son's  Reports    (Va.) 

1,  .; 587 

Milliken  &  Co.  v.  Gardner, 

37  Pa.  456, 482 

Molesky   v.   S.   Fork   Coal 

Min.  Co.,  247  Pa.  434,  .  304 
Monongahda  Water  Co.  v. 

Stewartson,  96  Pa.  436,  .  270 
Moore  v.  Kiff,  78  Pa.  96,  . .  687 
V.  Lincoln  Park,  Etc., 

Co.,  196  Pa.  519,  ...  388 
V.  Penna.  R.  R.  Co.,  242 

Pa.  641, 377 

Moorehead  v.  West  Branch 

Bank,  3  W.  &  S.  560,  . .  688 
Morris  v.  Stevens,  178  Pa. 

663, 517 

Morrison  v.  American  Sure- 
ty Co.,  224  Pa.  41, 481 

Morrison's  Estate,  196  Pa. 

80, 366 

Moyer  v.  Penna.  R.  R.  Co., 

247  Pa.  210, 296 

Murphy  v.  Ahlberg,  252  Pa. 
267, 603 


Page 
Myers  v.  Consumers'  Coal 
Co.,  212  Pa.  193,  228 
Pa.  444, 8,  616 

Nat  Bank  v.  Thomas,  220 
Pa.  360, 84 

Neff's  Appeal,  9  W.  &  S.  36,  571 

Nessler  v.  Industrial  Land 
Dev.  Co.,  65  N.  J.  Eq. 
491, 386 

New  Brighton  Boro.  v.  Bid- 
dell,  14  Pa.  Superior  Ct 
207, 315 

New  Brighton  Boro.  v.  New 
Brighton  Water  Co.,  247 
Pa.  232, 467 

Ogden's  Appeal,  70  Pa.  501,    79 
Ogle  V.  Barron,  247  Pa.  19,  456 
Oster   V.    Schuylkill   Trac- 
tion Co.,  195  Pa.  320,  ...     59 
Osterling      v.      Allegheny 
Trust  Co.,  260  Pa.  64,. . .  589 

Pangbum  v.  American  V. 

S.  &  L.  Co.,  205  Pa.  83,  .  386 
Paschall    v.    Passmore,    15 

Pa.  295, 475 

Patton   V.    McDonald,   204 

Pa.  517, 397 

Penna.     Co.     v.     Clausen 

Brew.  Co.,  3  Sadler  408,  .  588 
Penna.   Co.  v.   Swain,   189 

Pa.  626, 357 

Penna.  &  Ohio  Canal  Co.  v. 

Graham,  63  Pa.  290, 66 

Penna.  R.  R.  Co.  v.  Read- 
ing, 246  Pa.  110,  ...  465 
V.  Riblet,  66  Pa.  164,  .  313 
V.  Werner,  89  Pa.  69,  .  376 
Penna.    Schuylkill    Valley 

R.  R.  V.  Philadelphia  & 

Reading  Ry.  Co.,  160  Pa. 

277, 340 

Penrose  v.  Hart,  1  Dallas 

378 687 

People   V.   Green,   9   Colo. 

627, 269 

Peorii^       Steam       Marble 

Works  V.  Hickey,  110  la. 

276, 886 

Peter's  Appeal,  106  Pa.  340,    41 


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TABLE  OF  CASES  CITED. 


XXIX 


Page 

Petermau  s  Appeal,  76  Pa. 
116, 74 

Philadelphia    v.    Keeves    & 

Cabot,  48  Pa.  472,  . .  481 
V.  River  Front  R.  R., 
133  Pa.  134, 341 

Pindall  v.  Marietta  Bank, 
10  Leigh  ( Va.)  481, 587 

Pond  k  Haaey  Co.  v.  O'Con- 
nor, 70  if  inn.  266, 589 

Pittsley  V.  King,  206  Pa. 
193, 481 

Porter  t.  Nelson,  121  Pa. 
628, 41 

Pottsville  Boro.  v.  Peoples 
Ry.  Co.,  148  Pa.  175,  ....  342 

Prenatt  v.  Messenger  Print. 
Co.,  241  Pa.  267, 77 

Prouty  V.  Kreamer  199  Pa. 
273 247 

Provident  Savings  Institu- 
tion's Case,  221  U.  S.  660,  147 

Puritan  Coal  Mining  Co.  v. 
Penna.  R.  R.  Co.,  237  Pa. 
420, 57 

Putt  V.  Africa,  232  Pa.  182,  501 

Rader  v.  Union  Twp.,  39  X. 

J.  L^  509,  320 

Rankin     v.     Tenbrook,     5 

Watts  386,   504 

Rauch  V.  Smedley  208  Pa. 

175, 303 

Reeder  v.  L.  V.  Coal  Co., 

231  Pa.  563, 525 

Reese  v.  Penna.  R.  R.  Co., 

229  Pa.  340, 153 

Reeve  v.  Leibrandt  Plumb- 
ing   Co.,    168    111.    App. 

541, 271 

Reichard's  Appeal,  116  Pa. 

232, 117 

Reid  V.  Smoulter,  128  Pa. 

324, 371 

Reilly  v.   Philadelphia,   60 

.  Pa.  467, 36 

Rhad   V.   Duqnesne   Light 

Co.,  255  Pa.  409,  ......:     98 

Rice  V.  Com.,  idO  Pa.  28;,.  "• 

102  Pa.' 408,  ....;..,...  598 
Righy*«  Estate,  ^  Pa.  Su- . 

perior  Ct.  108, : ..    74 


Pag« 
Ringle  v.  Penna.  R.  R.  Co., 

164  Pa.  529, 153 

Robb's  Nomination  Certifi- 
cate, 188  Pa.  212,  ....  577 
Robert's  Appeal,  92  Pa.  407,  580 
Robertson  v.  Hay,   91   Pa. 

242 330 

Robinson  v.  Myers,  C7  Pa. 

9, 331 

Roshi's  Appeal,  69  Pa.  4G2,  C 
Ross  V.  Drake,  37  Pa.  373,  93 
Rudy  V.  Com.,  128  Pa.  500,  279 

St      Andrew's      Lutheran 

Church's  Appeal,  67  Pa. 

512,    299,  003 

Sample  v.  Pittsburgh,  212 

Pa.  533, 313 

Sargeant  v.  Nat.  Life  Ins. 

Co.,  189  Pa.  341, 435 

Sarver   &    Others'    Appeal, 

811/2  Pa.  183, 0 

Sayres  v.  Com.,  88  Pa.  291,  277 
Schalcher   v.    Bergdoll,    41 

Pa.  Superior  Ct.  547,  ...  482 
Scheel  v.  Shaw,  252  Pa.  451,  270 
Schenley  v.  Com.,  36  Pa.  29,  315 
Schnorr's    Appeal,    67    Pa. 

138, 6 

Scott  Twp.  V.  Montgomery, 

95  Pa.  444, 129 

Selfridge    v.    Northampton 

Bank,  8  W.  &  S.  320,  ...  558 
Seller's  Estate,  82  Pa.  153,  74 
Sener  v.  Ephrata  Boro.,  176 

Pa.  80, 371 

Seymour     v.     Marvin,     11 

Barb.  80, 589 

Shallcross's  Estate,  200  Pa. 

122 92 

Sharp  V.  Woolslare,  25  Pa. 

Superior  Ct.  251 74 

Shaw   V.    Pratt,    39    Mass. 

305, 589 

Sheaffer  v.  Eakman,  56  Pa. 

144, 504 

Simons   v.   Philadelphia   & 
.  Reading  Ry.  Oo.,'  254  Pa. 

607, 303 

Singdrlyv.  Thater,  108  Pa.-  .' 
•291,  ...:.....:;.........  477 

Skeer's-  Estate,  23^  Pa.  404,  50 
Smith's  Appeal,  179  Pa,  14,  259 


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XXX 


TABLE  OP  CASES  CITED. 


Page 

Smith  V.  L.  V.  R.  R.  Co., 

232  Pa.  456, 267 

V.    Mould,   149    N.   Y. 

Supp.  552, 588 

V.  York  llys.  Co.,  237 

Pa.  280, 272 

Smith   &    Co.   V.    Myler   & 

Aber,  22  Pa.  36, 482 

Smuller    v.    Union    Canal 

Co.,  37  Pa.  68, 588 

Solliday  v.  Bissey,  12  Pa. 

347, 353 

South   Side  Pass.  By.   Co. 

V.  Trich,  117  Pa.  390,  ...     98 
Spang  V.   Mattes,   253  Pa. 

-   101, 483 

Spires  v.  Hamot,  8  W.  &  S. 

17, 587 

Standard  Oil  Co.  v.  Ander- 
son, 212  U.  S.  215, 397 

State    V.    Goetze,    22    Wis. 

363, 189 

V.  Wetherill,  147  N.  W. 
Repr.  105  (Minn.),  .   166 
State  Board  of  Education 

V.  Brown,  97  Minn.  402,  .  312 
Stewart  v.  Colter,  12  S.  & 

R.  252, 482 

V.  Keith,  12  Pa.  238,  .   588 
Stobert  v.  Smith,  184  Pa. 

34, 576 

Stuart    V.     The    Com.,     8 

Watts  74,  350 

Studebaker  v.  Shelby  Steel 

Tube  Co.,  226  Pa.  239,  . .  428 
Sugar  Notch  Boro.,  192  Pa. 

349, 313 

Swanson  v.  Crandall,  2  Pa. 

Superior  Ct.  85, 98 

Swartz    V.    Carlisle    Boro., 

237  Pa.  473, 312 

Swauger    v.    Peoples    Nat. 
Gas  Co.,  251  Pa.  287,  ...  128 

Taylor  v.  Fried,  161  Pa.  53>    88 
V.  People,  21  Colo.  42e,  262 
.  V.  Taylor,  63  Pa.  481,  .79 
Tenth  Nat.  Bank  v.  Smith- 

Const.  Co.,  242  Pa.  269,  .  517 
Thayler   Bros-,   v.   Grefaser 
Const.  Co.,  229  Pa.  512,  .  4T6 


Page 
Thomas  v.  Herring,  244  Pa. 

550, 8 

V.  Hinkle,  126  Pa.  478,  189 
Titus  V.  Bindley,  210  Pa. 

121, 501 

Tooke  V.  Bonds,  29  Tex.  419,  588 
Towanda  Bank's  Appeal,  1 
,Mona.  (Pa.)  463,  ......     74 

Treat  v.  Penna.  Mut.  Life 
Ins.  Co.,  203  Pa.  21,  ... .  618 

Turtle  Creek  Boro.  v. 
Penna.  Water  Co.,  243 
Pa.  415,  ..;■ 466 

Union  Trust  Co.  v.  111.  Mid- 
land Ry.  Co.,  117  U.  S. 
434, 386 

Vandermis    v.    Gilbert,    10 

Pa.  Superior  Ct.  570,  ...  677 
Vare  v.  Walton,  236  Pa.  467,  314 

Wakely  v.  Sun  Ins.  Office, 
246  Pa.  268, 484 

Walker's  Appeal,  116  Pa. 
419, 356 

Wallace  v.  Automobile  Co., 

239  Pa.  110, 399 

V.    United    States,    162 
U.  S.  Rep.  466,  ....  252 

Watson     V.      Monongahela 
River  C.  &  C.  Co.,  247  Pa.      ^ 
469, 526 

Watt  &  Co.  V.  Hoch,  25  Pa. 
411, 588 

West  Va.  P.  &  P.  Co.  v. 
Public  Sendee  Commis- 
sion, 61  Pa.  Superior  Ct. 
555 467 

Williams  v.  Notopolos,  247 
Pa.  554, 332,  473 

Willis  V.  Armstrong  Coun- 
ty, 183  Pa.  184. 98 

Wischam  v.  -Hickards,  136 
Pa.  109. ...:....  361 

Witmfer  V.  B.  &  L.  E.  R.  Jl. 
"  Co.,  241  Pa.  112; 377 

Woelpper's  Appeal;  126  Pa. 
562 ,.. 92 


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Wolf  V.  Beales,  6  S.  &  R. 

241, 352 

Wolfe  V.  Gordon,  4  Sadler 

307,     '677 

Wolferaberger  v.  Bucher,  10 

S.  &  R.  10, 851 

WriRht  V.  Linhart,  248  Pa. 

221, 329 


TABLE  OP  CASES  CITED 
Page 


XXXI 


Page 

Yeier  v.  Camden  Fire  Ins. 
Assn.,  66  Pa.  Supe- 
rior Ct  571.^ 484 

V.   Hanover   Fire   Ins. 
Co.,  63  Pa.  Superior 

Ct.  258, 484 

York  Water  Co.  v.  .York, 
250  Pa.  115, 469 


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ACTS  OF  ASSEMBLY  CONSTRUED. 


1775.  March  18,  1  Sm.  L.  442.     Kecording  of  Deeds. 

Smith  V.  Young,  367. 
1802.  February  22,  3  Smith's  Laws,  490.    .f  ustice  of  the 

Peace.    Com.  v.  Cameron,  209. 
1836.  June  13,  P.  L.  568.    Service  of  Process.    Vander- 

sloot  V.  Penna.  W.  &  P.  Co.,  99. 
1836.  June  16,  P.  L.  784.     Equity  Practice.     Baur  v. 

Wilkes-Barre  Light  Co.,  115. 
1844.  May  6,  P.  L.  564.     Injunction  Bonds.     Baur  v. 

Wilkes-Barre  Light  Co.;  115. 
1853.  April  18,  P.  L.  503.    Accumulations.    McKeown's 

Estate,  216. 
1855.  April  27,  P.  L.  368.    Estate  Tail.    Mylin  v.  Hurst, 

77;  McClinticv.  McClintic,  112;  Ooss  v.  Dye, 

207. 
ia56.  March  17,  P.  L.  388.     Service  of  Process.     Van- 

dersloot  v.  Penna.  W.  &  I\  (^o.,  99. 

1859.  April  6,  P.  L.  389.    Jurisdiction,  Equity.    Vander- 

sroot  V.  Penna.  W.  &  P.  Co.,  99. 

1860.  March  31,  P.  L.  427.    Crimes.    Com.  v.  Dennery, 

223 ;  Com.  v.  Weber,  592. 

1871.  June  19,   P.   L.   1360.     Injunctions.     Croyle  v. 

Johnstown  Water  Co.,  484. 

1872.  April  17,  P.  L.  62.     Unclaimed  Deposits.     Com. 

V.  Dollar  Savings  Bank,  138. 
1874.  April  29,  P.  L.  73.    Corporations.    Croyle  v.  Johns- 

town  Water  Co.,  484. 
1881.  May  11,  P.  L.  20.    Insurance  Companies.    Laflferty 

V.  Supreme  Council  Cath.  IMut.  Ben.  Assn.,  452. 
1887.  May  23,   P.  L.   158.     Witnesses.     Edmundson's 

Estate,  429. 

fxxxiii) 


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xxxiv  ACTS  OF  ASSEMBLY  CONSTRUED. 

189:i.  April  G,  P.  L.  7.    Beneficial  AHSociations.    Laflfer- 

ty  V.  Supreme  Council  Cat|ju  Mut.  Ben.  Assn., 

452. 
1893.  May  19,  P.  L.  108.    Rectording  of  Deeds.     Smith  v. 

Young,  367. 
1893.  June  10,  P.  L.  415.     Ejectment.     Bell's  lY-titiou, 

495. 
1901.  ifay  8,  P.  L,  150.     Foreign  Corporations.     Com. 

V.  Schwarzschild,  130. 
1903.  April  3,  P.  L.  139.  Service  of  Process.     Vaiider- 

sloot  V.  Penna.  W.  &  P.  Co.,  99. 
1903.  April  29,  P.  L.  338.     Election  Law.     Town  Meet- 
ing Party  Nomination  Papers,  231. 
1907.  May  25,  P.  L.  231.     Townships  of  Second  Class. 

Trevorton  Water  Supply  Co.  v.  Zerbe  Twp.,  31. 
1909.  April  1,  P.  L.  87.    Widow's  Allowance.    Holling- 

er's  Estate,  72. 
1909.  April  29,  P.  L.  283.    Factory  Act.    Chabot  v.  Pitts- 
burgh Plate  Glass  Co.,  504. 
1909.  May  11,  P.  L.  519.    Payments  from  State  Treasury. 

Com.  V.  Dollar  Savings  Bank,  138. 
1911.  June  9,  P.  L.  756.     Bituminous  Coal  Mine  Act. 

Cossette  v.  Paul  ton  Coal  Min.  Co.,  520. 
1913.  June  27,  P.  L.  568.    Councilmen.    C^om.  v.  Strick- 

ler,  60. 
1913.  July  26,  P.  L.  1374.    Public  Service  Commission. 

St.  Clair  Boro.  v.  T.  &  P.  Elec.  Ry.  Co.,  462; 

Pittsburgh   v.    IMttsburgh    Rys.    Co.;     Jacoby 

V.  Pittsburgh  Rys.  Co.,  558. 
1915.  May  14,  P.  L.  312.    Boroughs.    Vicfcroy  v.  Fern- 
dale  Boro.,  321. 
1915.  May  14,  P.  L.  483.     Practice  Act     Robert  Grace 

Cont.  Co.  V.  X.  &  W.  Ry.  Co.,  241 ;  Williams  v. 

Xotopolos,  469;   Mintz  v.  Tri-County  Nat.  Gas 

Co.,  477.      • 
1915.  May  28,  P.  L.  580.     Adoption.     Helen  Frances 

Young's  Adoption,  573. 
1915.  June  2,  P.  L.  758.    Workmen's  Comi)en8ation  Law. 

Rakie  v.  Jefferson  &  Clejirfield  (\  &  I.  Co.,  534. 


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ACTS  OF  ASSE.AII3LY  CONSTRl'KD.  xxxv 

1915.   June  3,  P.  L.  73G.    Workmen's  Compensation  Law. 

Dzikowska  v.  Superior  Steel  Co.,  578. 
1915.    June  5,  P.  L.  847.    Practice,  Equity.    Vandersloot 

V.  Penna.  W.  &  P.  Co.,  99. 
1917.   April  20,  P.  L.  91.    Brid|?es  and  Tunnels.     Ken- 

neily  v.  Meyer,  306. 
1917.   April  24,  P.  L.  95.    Judicial  Districts.    Xoecker  v. 

Woods,  100. 


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CASES 

IN 

THE   SUPREME  COURT 

or 

PENNSYLVANIA 


Kicinko  et  aL  v.  Petruska  et  al.,  Appellants. 

Church  law — Church  property — Dedication  to  certain  purposes — 
Diversion — Equity — Injunction — Judgment  in  prior  suit — Res  ad- 
judicated—Estoppel. 

1.  The  estoppel  of  a  judgment  extends  only  to  a  question  directly 
involyed  in  the  issue  and  not  to  any  incidental  or  collateral  matter 
however  it  may  have  arisen  and  been  passed  upon. 

2.  A  decree  in  equity  determining  the  right  of  a  congregation  to 
discharge  a  rector,  under  a  contract  which  he  had  violated,  does 
not  bar  a  subsequent  suit  between  members  of  the  same  congre- 
gation relating  to  the  control  of  the  church  property,  and  it  is  not 
material  that  certain  findings  in  the  prior  suit  are  not  consistent 
with  certain  findings  in  the  second  suit,  where  the  questions  in- 
volved in  such  findings  were  merely  incidental  to  the  main  ques- 
tions at  issue. 

3.  A  congregation  was  incorporated  in  1901  for  the  purpose  of 
maintaining  a  place  of  worship  according  to  the  faith,  doctrine, 
discipline,  government  and  forms  of  the  United  Greek  Catholic 
Church.  Until  1914  the  congregation  adhered  to  the  faith  and 
practiced  the  ritual  of  the  United  Greek  Catholic  Church.  In 
1914  the  congregation  employed  a  priest  who  belonged  to  the 
Orthodox  Greek  Catholic  Church  and  who  began  to  preach  the 
dogmas  and  perform  the  ceremonies  of  such  denomination,  so  that 
a  large  number  of  the  members  forsook  the  charter  purposes  of 
the  congregation,  and  practiced  in  the  church  the  worship  and 
forms  of  the  Orthodox  Greek  Catholic  Church,  excluding  from  the 
church  premises  those  who  adhered  to  the  United  Gred^  Catholic 

Vol.  cclix — 1  (1) 


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2      KICINKO  et  al.  v.  PBTRUSKA  et  al„  Appellants. 

Syllabus— Statement  of  Facts.  [259  Pa. 

Chnich.  A  suit  had  been  brought  against  this  Greek  Catholic 
Church  and  prosecuted  to  judgment^  involving  the  right  of  the 
congregation  to  discharge  its  priest  for  violation  of  contract.  In  a 
suit  in  equity. brought  by  the  members  of  the  congregation  who  ad- 
hered to  the  United  Greek  Catholic  Church  to  enjoin  the  members 
in  control  from  using  the  church  property  for  the  practice  of  the 
worship  and  forms  of  the  Orthodox  Greek  Catholic  Church,  the 
lower  court  decided  that  the  proi)erty  had  been  acquired  for  the 
purpose  of  practicing  the  worship  and  forms  of  the  United  Greek 
Catholic  Church  and  that  it  was  impressed  with  a  trust  for  that 
purpose;  that  the  prior  suit  was  not  res  adjudicata;  and  awarded 
the  relief  prayed  for.    Held,  no  error. 

Equity  practice  —  Adjudications  —  Exceptions  —  Chancellor  and 
other  judges — Opinion — Appeals. 

4.  Where  a  court  consists  of  more  than  one  judge,  exceptions  to 
an  adjudication  must  be  heard  by  the  other  members  of  the  tri- 
bunal, in  addition  to  the  chancellor  who  tried  the  case,  unless  this 
course  is  made  impossible  by  their  physical  disability  or  equally 
potent  reasons,  and  the  final  disposition  of  the  exceptions  should 
be  accompanied  by  a  written  opinion  from  the  court  in  banc  when- 
ever the  circumstances  so  require;  and  in  the  absence  of  such 
opinion  the  record  will  be  returned  by  the  appellate  court  for  a 
written  opinion  by  the  court  below. 

Argued  May  1,  1917.  Appeal,  No.  146,  Oct.  T.,  1916, 
by  defendants,  from  decree  of  C.  P.  Westmoreland  Co., 
Equity  Docket,  No.  894,  awarding  an  injunction,  in  case 
of  John  Kicinko,  John  Martin,  John  Mikulaninitz,  Hritz 
Fendya,  Vasil  Svreda,  Mike  Panco,  George  Juhas,  Pau- 
lina Skirpan,  Joe  Ory,  Petro  Dankanich,  Paul  Cher- 
tisky,  John  Fecko,  Andy  Miklovs,  Vasil  Valenter,  Vasil 
Hardoby,  Andy  Halko,  Joe  Hulick,  Vasil  Sandala, 
George  Hertnick,  Vasil  Lucanick,  Andy  Kocan,  George 
Shuma,  Jr.,  and  Rev.  Paul  Ruttkay,  members  and  Pastor 
of  the  Greek  Catholic  Church  of  the  Assumption  of  the 
Blessed  Virgin  Mary;  and  the  Greek  Catholic  Church  of 
the  Assumption  of  the  Blessed  Virgin  Mary — John  Ki- 
cenko,  John  Martin,  John  Mikulaninitz,  Hritz  Fendya, 
Vasil  Svcreda,  Petro  Dankanich,  and  John  Fecko,  Trus- 
tees, V.  John  Petruska,  Mike  Kohut,  Nik  Kerestan,  Mike 
Shurkay,  George  Shuma,  Pet  Ratica  and  George  Mike, 


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KICINKO  et  al.  v.  PETEUSKA  et  al.,  Appellants.      3 
1917.]  Statement  of  Facts — Opinion  of  the  Court 

and  Eev.  V.  Levkanich,  members  and  Pastor  of  the  Rus- 
sian Orthodox  Greek  Catholic  St.  Mary's  Church ;  and 
the  Russian  Orthodox  Greek  Catholic  St.  Mary's  Church 
— John  Petruska,  Mike  Kohut,  Nik  Kerestan,  Mike 
Skurkay,  George  Shuma  and  George  Mika,  officers.  Be- 
fore Brown,  C.  J.,  Mbstrbzat,  Moschzisker,  Frazbb 
and  Walling,  J  J.    Affirmed.  ^ 

Bill  in  equity  for  an  injunction.  Before  Doty,  P.  J., 
COPELAND,  P.  J.,  specially  presiding,  and  McConnbll,  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  on  final  hearing  awarded  an  injunction  as 
prayed  for.    Defendants  appealed. 

Errors  assigned  were  in  dismissing  exceptions  to  vari- 
ous findings  of  fact  and  law  and  the  decree  of  the  court. 

Lewis  C,  Walkinshaw,  with  him  Hugh  W.  Walkin- 
shawy  for  appellants. 

Adam  M.  Wyant  and  Gregory  I.  Zsatkovich,  with 
them  Edward  E.  Rohhins,  for  appellees. 

Opinion  by  Mr.  Justice  Moschzisker,  June  30, 1917 : 
This  case  arose  out  of  religiotis  differences  existing 
between  two  factions  of  a  church  congregation ;  after  an 
elaborate  trial,  the  plaintiffs  succeeded  in  obtaining  an 
injunction  against  the  defendants,  as  hereinafter  more 
fully  set  forth ;  the  latter  have  appealed. 

The  record  is  a  long  one ;  but  the  material  features  of 
the  controversy  may  be  stated  with  comparative  brief- 
ness. The  church  in  question  was  organized  in  1901,  in 
Monessen,  and  two  years  thereafter  the  congregation  was 
incorporated  under  the  name  of  the  "Greek  Catholic 
Church  of  the  Assumption  of  the  Blessed  Virgin  Mary,'' 
the  charter  stating:  "The  purpose  for  which  the  corpo- 
ration is  organized  is  the  support  and  maintenance  of  a 
place  for  the  worship  of  Almighty  God  in  accordance  to 
the  faith,  doctrine,  discipline,  government  and  forms  of 


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4      KICINKO  et  al.  v.  PETEUSKA  et  al.,  AppeUants. 

Opinion  of  the  Court.  [259  Pa. 

the  United  Greek  Catholic  Church,  as  are  now  in  force  and 
effect  and  held,  or  may  hereafter  be  passed  and  adopted 
by  the  governing  or  law-making  power  of  said  church, 
which  it  hereby  accedes  to,  recognizes  and  adopts." 
Prom  the  date  of  its  organization  to  1914,  when  a  priest 
named  Levkanich  came  to  the  congregation,  the  members 
thereof  adhered  to  the  faith  and  practiced  the  ritual  of 
the  "United  Greek  Catholic  Church,"  or  "Uniate  Greek 
Catholic  Church,"  or  "Uniat  Greek  Catholic  Church," 
which  title  signifies  an  ecclesiastical  body  in  union  with 
the  Roman  Catholic  Church  and  acknowledging  the 
primacy  and  supremacy  of  the  pope ;  and  they  did  not 
believe  in  the  teachings  or  follow  the  ritual  of  the  "Or- 
thodox Greek  Catholic  Church,"  or  "Orthodox  Catholic 
Church,"  which  title  is  used  to  designate  Catholic 
churches  that  refuse  allegiance  or  obedience  to  the  pope, 
looking  to  the  czar  of  Russia  as  their  ecclesiastical  head 
and  denying  many  of  the  fundamental  doctrines  of  the 
Roman  Catholic  Church.  Father  Levkanich  was  an  or- 
dained priest  of  the  "Orthodox"  church,  and  shortly 
after  his  arrival  in  Monessen  he  began  to  preach  the  dog- 
mas and  perform  the  ceremonies  of  that  denomination, 
with  the  result  that  a  considerable  number  of  parish- 
ioners forsook  the  charter  purposes  of  the  congregation ; 
and,  in  the  end,  the  orthodox  persons  took  control,  refus- 
ing those  adhering  to  the  original  faith  admission  to  the 
church  premises.  The  property  in  question  was  built 
through  the  expenditure  of  money  collected  with  the 
avowed  intent  of  purchasing  a  lot  and  erecting  thereon 
an  edifice  to  be  used  "for  the  worship  of  Almighty  God 
according  to  the  faith,  doctrine,  discipline,  government 
and  rights,  usages,  customs,  forms  and  beliefs  of  the 
United  Greek  Catholic  Church."  The  chancellor  found, 
inter  alia,  not  only  the  foregoing  facts,  but  also  "that 
Rev.  V.  Levkanich  was  the  guiding  spirit  in  the  attempt 
to  divert  this  property  to  other  uses  than  that  for  which 
it  was  dedicated,  and  to  change  its  form  of  worship,  doc- 
trine, discipline,  and  government;    and  that  this  was 


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KICINKO  et  al.  v.  PETRUSKA  et  al.,  AppeUanta.      5 
1917.]  Opinion  of  the  Court. 

done  with  the  approval,  knowledge  and  consent  of 

his  followers  in  the  congregation." 

On  the  facts  just  stated,  and  upon  other  but  subor- 
dinate findings,  the  court  below  decreed  defendants  be 
enjoined  and  restrained,  from  preaching,  teaching  or 
holding  any  religious  services  in  the  before-mentioned 
church  property  and  from  diverting  the  same  "to  any 
form  of  public  worship  other  than  that  prescribed  in  its 
charter  and  followed  by  the  congregation  from  the  date 
of  its  organization";  also,  Father  Levkanich  and 
others  of  the  defendants  were  ordered  to  deliver  up  the 
keys  of  the  church  property  to  the  present  officers  of  the 
congregation,  the  latter  being  named  in  the  decree,  and 
the  defendants  were  ordered  to  permit  the  rector,  or 
priest,  "trustees  and  members  of  the  Greek  Catholic 
Church  of  the  Assumption  of  the  Blessed  Virgin  Mary 
to  enter  said  church  and  hold  services  therein,"  meaning 
thereby  the  priest  and  trustees  chosen  by  the  members 
who  had  adhered  to  the  faith  and  followed  the  ritual 
designated  in  the  church  charter.  This  is  the  decree 
complained  of. 

We  have  examined  the  whole  of  the  printed  testimony, 
paying  particular  heed  to  the  parts  relied  upon  by  ap- 
pellants, but  are  not  convinced  of  manifest  error  in  any 
finding  of  fact ;  and,  on  the  findings  as  made,  the  con- 
clusions of  the  learned  court  below  are  inevitable. 

As  correctly  stated  by  President  Judge  Doty,  in  his 
concurring  opinion,  "This  congregation is  self- 
governing  in  temporal  affairs,  electing  its  own  trustees 
and  holding  title  to  the  property  in  the  names  of  the 
trustees  or  of  the  congregation,  which  practice  was  ini- 
tiated by  said  congregation  and  acquiesced  in  by  the 

[Roman  Catholic]  bishop  of  the  diocese Whether 

the  church  was  wholly  independent  is  not  the  decisive 
question.  The  real,  important  matter  is  whether  the  de- 
fendants, now  in  possession  and  control  of  the  church 
property,  had  departed  from  the  faith  of  the  founders 
and  changed  certain  forms,  fundamentals  and  practices 


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G      KICINKO  et  al.  v,  PETRUSKA  et  al.,  AppeUants. 

Opinion  of  the  Court.  [259  Pa. 

of  the  church.    This  church  was  chartered ,  and 

the  purpose  set  forth  in  the  articles  of  association  is  as 
follows :  *The  purpose  for  which  the  corporation  is  or- 
ganized is  the  support  and  maintenance  of  a  place  of 
worship  of  Almighty  God  in  accordance  to  the  faith,  doc- 
trine, discipline,  government  and  forms  of  the  United 
Greek  Catholic  Church,  as  are  now  in  force  and  effect, 
and  held  or  may  hereafter  be  passed  and  adopted  by 
the  governing  or  law-making  power  of  said  church 
which  it  hereby  accedes  to,  recognizes  and  adopts.'  The 
church,  of  course,  could  be  independent  and  yet  adopt 
fully  the  faith,  doctrine,  and  practices  of  the  United 
Greek  Catholic  Church ;  it  appears  that such  reli- 
gious rites  have  been  observed  in  the  Monessen  church 

since  its  organization  until the  Rev.  V.  Levkanich 

was  chosen  pastor ,  that  the  Rev.  V.  Levkanich, 

with  the  other  [defendants] has  abolished  in  this 

church  the  worship  of  Almighty  God  according  to 
the  faith and  beliefs  of  the  United  Greek  Cath- 
olic Church ,  and  that  various  changes  were  in- 
troduced,   some  fundamental  doctrines  repudiated 

and  certain  practices  to  which  the  congregation  were 

accustomed  from  its  inception  were  abolished 

The  defendants  cannot  introduce  such  vital  changes  in 
forms  and  fundamental  doctrine  and  at  the  same  time 
assert  the  right  of  possession  and  control  of  the 
[church]  property."  While  the  facts  in  none  of  the 
cases  we  are  about  to  cite  are  precisely  like  those  at 
bar,  yet  the  material  principles  laid  down  and  discussed 
in  these  authorities  are  relevant  and  controlling;  and 
they  fully  sustain  the  view  of  the  law  stated  in  the  ex- 
cerpt just  quoted  from  the  opinion  of  the  learned  pres- 
ident judge  of  the  court  below:  See  Schnorr's ' App., 
67  Pa.  138;  Roshi's  App.,  69  Pa.  462;  Sarver  &  Others' 
App.,  8iy2  Pa.  183;  Greek  Catholic  Church  v.  Ortho- 
dox Greek  Church,  195  Pa.  425 ;  Mazaika  v.  Grauczunas, 
229  Pa.  47,  53. 
The  contention  of  defendants  that,  upon  the  doctrine 


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KICINKO  et  al.  v.  PETRUSKA  et  al.,  Appeiiants.      1 
1917.]  Opinion  of  the  Court. 

of  res  adjudicata,  the  decision  in  Berecz  et  al.  v.  Greek 
Catholic  Church  et  al.,  3  Westmoreland  L.  J.  151,  con- 
trols the  present  case,  cannot  be  sustained.  As  said  by 
Judge  Doty,  in  his  concurring  opinion  at  bar,  "The  two 
cases  are  not  conflicting,  and  the  Berecz  case  is  not 
conclusiye  here;  an  examination  of  that  case  will  show 
the  issue  [there  involved]  is  not  the  one  now  presented." 
Albeit  Berecz  v.  Greek  Catholic  Church  concerned  the 
same  congregation  with  which  we  are  now  dealing  and 
certain  findings  there  may  seem  to  be  out  of  harmony 
with  some  of  those  at  bar,  yet  these  apparent  incon- 
sistencies are  not  substantial.  In  other  words,  the  al- 
leged differences  involve  matters  which  were  in  no  sense 
controlling  in  the  Berecz  case,  the  real  point  there  in 
controversy  being  the  right  of  the  congregation  to  dis- 
charge the  then  present  complainant,  who  had  been  em- 
ployed by  the  former  as  its  priest  under  a  contract 
which  he  had  violated.  "It  is  too  well  settled,  to  need 
either  argument  or  authority  to  maintain  it,  that  the 
estoppel  of  a  judgment  extends  only  to  the  question  di- 
rectly involved  in  the  issue  and  not  to  any  incidental 
or  collateral  matter,  however  it  may  have  arisen  and 
been  passed  upon":  Lewis  &  Nelson's  Appeal,  67  Pa. 
153, 165.  Here,  there  is  no  question  as  to  the  congrega- 
tion's power  to  employ  and  discharge  its  priest,  nor  of 
the  former's  right  to  control  the  church  property  and 
manage  its  own  temporal  affairs ;  and  the  authorities 
cited  to  sustain  the  decree  entered  by  the  court  below 
are  not  in  conflict  with  the  decisions  of  this  court  relied 
on  by  appellants;  none  of  the  latter  the  facts  at  bar. 
As  to  the  cases  cited  from  other  jurisdictions,  it  is  suf- 
ficient to  say,  we  have  enough  of  these  church  contro- 
versies adjudicated  in  our  own  State  not  to  require  light 
upon  the  subject  from  without. 

When  the  present  appeal  first  came  before  us,  the  de- 
fendants made  it  appear  as  though  there  was  a  sub- 
stantial conflict  between  the  adjudication  in  the  Berecz 
case  and  the  one  at  bar;   and,  since  we  then  had  no 


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8      KICINKO  et  al.  v.  PETRUSKA  et  al.,  Appellants. 

Opinion  of  the  Court  [259  Pa 

opinion  from  the  court  in  banc,  it  seemed  as  though 
two  chancellors  sitting  in  the  same  tribunal  had  made 
materially  different  and  conflicting  decisions  concern- 
ing a  like  matter.  Hence,  we  returned  the  record  for 
a  written  opinion  from  the  court  in  banc,  under  our 
well  established  rule  in  equity  that,  where  a  court  con- 
sists of  more  than  one  ^'udge,  exceptions  to  an  adjudica- 
tion must  be  heard  by  other  members  of  the  tribunal  in 
addition  to  the  chancellor  who  tried  the  case,  unless 
this  course  is  made  impossible  by  their  physical  disa- 
bility or  equally  potent  reasons ;  and  the  final  disposi- 
tion of  the  exceptions  should  be  accompanied  by  a  writ- 
ten opinion  from  the  court  in  banc,  whenever  the  cir- 
cumstances so  require  (as  they  clearly  do  in  the  pres- 
ent instance).  See  Myers  v.  Consumers'  Coal  Co.,  212 
Pa.  193,  200-1;  Id.,  228  Pa.  444;  Ebling  v.  Schuylkill 
Haven  Borough,  244  Pa.  505,  511-12;  Thomas  v.  Her- 
ring, 244  Pa.  550,  558-9. 

We  have  not  attempted  to  discuss  in  detail  all  of  the 
fifty-three  assignments ;  but  we  have  examined  each  of 
them,  and  find  no  reversible  error. 

The  decree  is  affirmed  at  the  cost  of  the  appellants. 


Drake  et  al.,  Executors,  v.  Berry,  Trustee,  et  al. 

Mines  and  mining — Coal  leases  —  Accounting  —  Construction — 
Forfeiture, 

1.  '^Miners'  weight"  as  used  in  a  coal  lease  is  not  a  fixed,  un- 
varying quantity  of  mine  run  material,  but  is  such  quantity  of  the 
same  as  operators  and  miners  may  from  time  to  time  agree  as  be- 
ing necessary  or  sufficient  to  produce  a  ton  of  prepared  coal. 

2.  Where  a  coal  lease  provided  '^miners'  weight  to  be  the  stand- 
ard" of  each  ton  of  coal  mined,  and  thereafter  the  successors  in 
title  of  the  lessors  brought  a  bill  in  equity  against  the  lessees  for 
an  accounting  for  coal  mined,  the  court  properly  decided  that  the 
accounting  should  be  on  the  basis  of  the  miners'  weight  fixed  upon 
by  the  operators  and  miners  during  the  accounting  period,  not 


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DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al.       9 
1917.]  Syllabus— Statement  of  Facts, 

upon  the  basis  of  the  miners'  weight  as  it  existed  at  the  time  of 
the  execution  of  the  lease. 

Drake  et  al.  v.  Lacoe  et  al.,  157  Pa.  17,  followed. 

8.  In  such  case,  a  provision  in  the  lease  ^^hat  sufficient  pillars 
of  coal  shall  be  left  to  support  the  roof  over  the  gangways  and 
the  usual  protection  of  the  mines  generally,"  was  for  the  protection 
of  the  colliery,  not  of  the  surface,  and  the  successors  of  the  lessors, 
though  owning  the  surface,  were  not  entitled  to  an  injunction  to 
restrain  the  removal  of  coal  from  the  pillars,  especially  after  all 
reason  to  apprehend  surface  disturbance  by  the  removal  of  such 
,coal  had  ceased  to  exist. 

4.  In  such  case  a  usage  that  the  owner  of  the  surface  was  en- 
titled to  one-third  of  all  the  pillar  coal,  could  not  be  set  up  to  de- 
feat a  grant  of  all  the  coal  in  the  mine,  and  the  successor  of  the 
lessor  was  not  entitled  to  restrain  the  removal  of  such  coal  or  to 
have  a  forfeiture  of  the  lease  declared  because  of  such  removal. 

Argued  April  12, 1917.  Appeals,  Nos.  25  and  50,  Jan. 
T.,  1917,  by  plaintiffs  and  defendants,  from  decree  of  C. 
P.  Lackawanna  Co.,  May  T.,  1912,  No.  3,  in  equity,  on 
bill  in  equity  for  an  accounting,  in  case  of  George  Drake, 
Executor,  Sarah  E.  Drake  and  Caroline  E.  Stewart, 
Executrices  of  the  Last  Will  and  Testament  of  George 
K.  Drake,  dec'd.,  v.  John  W.  Berry,  Trustee,  R.  D.  Lacoe 
and  Margaret  Lacoe  White,  Heirs  and  Administrators  of 
the  Estate  of  R.D.  Lacoe,  Deceased,  and  Prank  S.  Shiflfer, 
Surviving  Executor  of  the  Last  Will  and  Testament,  and 
William  A.  Shiffer,  Prank  E.  Shiflfer,  and  Gertrude  Hea- 
ley,  Heirs  o^  J.  B.  Shiflfer,  Deceased,  Joseph  J.  Jermyn, 
Surviving  Partner  of  John  Jermyn  and  Joseph  J.  J. 
Jermyn,  Copartners  Trading  as  Jermyn  &  Co.,  James  L. 
Morris  and  E.  W.  Mulligan,  Executors  of  the  Last  Will 
and  Testament  of  M.  W.  Morris,  Deceased,  Huldah  A. 
Drake,  Ebenezer  Drake  and  Thos.  Drake.  Before 
Beown,  C.  J.,  Mbstbbzat,  Potter,  Prazbb  and  Walung, 
JJ.   Affirmed. 

Bill  in  equity  for  an  accounting. 
The  principal  relief  asked  for  in  the  bill  was  for  an  ac- 
counting for  coal  royalties  payable  to  plaintiflfs  under 


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10      DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al. 

Statement  of  Facts — Opinion  of  Court  below.  [259  Pa. 
two  coal  leases,  executed  in  1863  and  1865.  The  main 
question  was  the  tonnage  basis  upon  which  the  royalties 
are  to  be  paid.  In  addition  to  the  prayer  for  an  account 
ing,  a  decree  was  asked  for  declaring  the  leases  to  be  for- 
feited and  for  an  injunction  restraining  the  defendants 
from  mining  and  taking  coal  away  from  the  leased  prem- 
ises.   The  trial  judge,  Newcomb,  J.,  found  as  follows : 

CONCLUSIONS  OF  PACT. 

1.  The  bill  was  filed  April  6, 1912,  by  George  K.  Drake, 
now  deceased,  who  sued  in  his  rights  as  successor  in  title 
upon  the  death  of  his  father,  Charles  Drake,  called  the 
lessor  in  the  instruments  hereinafter  mentioned.  He  had 
succeeded,  however,  as  one  of  four  brothers  who  became 
equal  tenants  in  common.  His  cotenants,  not  joining  in 
the  bill,  are  for  technical  reasons  made  parties  defend- 
ant. After  the  death  of  the  original  plaintiff  substitution 
was  made  as  appears  by  the  above  caption. 

The  firm  of  Jermyn  &  Company,  by  its  surviving  part- 
ner, is  a  sublessee.  The  other  defendants  represent  the 
interest  of  the  lessees  next  hereinafter  mentioned. 

2.  The  subject-matter  is  the  amount  of  royalty  bearing 
coal  mined  from  several  veins  underlying  a  tract  of 
seventy  odd  acres  of  land  in  what  is  now  Old  Forge 
Township,  this  county,  of  which  Drake,  the  lessor,  was 
owner  in  fee.  In  18G3  and  1865,  respectively,  he  made 
two  indentures  under  seal,  commonly  called  ^'Coal  Leas- 
es.'^ The  one  granted  to  R.  D.  Lacoe  and  J.  B.  Shiflfer — 
both  now  dead — their  heirs,  assigns,  etc.,  all  the  coal  in 
the  tract,  excepting  the  upper  or  Marcy  vein ;  the  other 
granted  to  the  Massachusetts  Coal  Company,  its  succes- 
sors and  assigns,  all  the  coal  so  excepted.  The  first  was 
for  a  term  of  ten  years  and  such  further  time  as  lessees 
should  continue  to  pay  the  royalty,  subject  to  forfeiture 
for  default  of  payment  for  the  period  of  six  months.  A 
yearly  minimum  of  $500  was  to  be  paid  in  half  yearly 
installments  on  the  1st  of  April  and  October,  collectible 


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DRAKE  et  al.,  Exrs.,  v.  BERRY,*  Trustee,  et  al.      11 
191T.]  Opinion  of  Court  below, 

at  lessor's  option  by  distraint.  In  consideration  thereof 
lessees  were  to  have  the  right  to  mine  and  carry  away 
5,000  tons  of  coal  yearly  at  ten  cents  a  ton  "miners' 
weight  to  be  the  standard."  The  same  price  was  to  be 
paid  for  all  coal  mined  in  excess  of  the  minimum  which 
was  to  be  paid  whether  mined  or  not,  subject,  in  case  of 
deficit  in  mining  or  payment  in  any  one  year,  to  have 
credit  for  any  excess  thereof  in  any  preceding  year,  with 
the  privilege  of  making  up  in  any  subsequent  year  such 
deficit  of  coal  as  may  have  been  paid  for  though  not 
mined  in  any  preceding  year.  The  lease  conferred  the 
usual  mining  rights  for  purpose  of  shafts  and  other  struc- 
tures, with  the  use  of  so  much  surface  as  might  be  deemed 
necessary  or  expedient,  inter  alia,  for  roads  and  wasting 
grounds.  There  was  a  covenant  for  workmanlike  mining 
and  that  "suflScient  pillars  of  coal  shall  be  left  to  support 
the  roof  over  the  gangways  and  the  usual  protection  of 
the  mines  generally." 

3.  While  the  second  lease  passed  all  the  coal  in  the 
Marcy,  the  obligation  to  mine  was  limited  to  the  "mer- 
chantable coal,"  the  exhaustion  of  which  was  the  only 
thing  to  define  the  term.  There  was  no  minimum  but  the 
royalty  was  ten  cents  a  ton  "miners'  weight  on  all  the 
merchantable  coal  mined  from  said  vein,"  etc.,  payable 
semiannually.  Lessee  was  to  have  the  right  of  way  over 
or  under  the  demised  premises  after  the  expiration  of 
the  term  for  the  conveyance  of  coal  taken  from  the  cor- 
responding vein  on  an  adjoining  tract.  It  was  further 
stipulated  that  the  lease  was  "subject  to  the  provision 
of  the  Lacoe  and  Shiflfer  lease  "so  far  as  relates  to  its 
continuance,  the  payment  of  taxes  and  the  inspection  of 
books  as  well  as  the  conduct  of  mining  operations  in  a 
workmanlike  manner."  In  addition  to  the  royalty,  it 
called  for  the  annual  delivery  to  Drake  or  his  successors 
of  "fifty  tons  of  lump  or  prepared  coal"  so  long  as  lessee's 
rights  in  the  premises  should  continue  to  be  exercised. 
The  lease  changed  hands  and  eventually  became  vested 
in  Lacoe  and  Shiflfer,  who  thus  acquired  the  leasehold  in 


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12      DRAKE  et  al.,  Exrs.,  v,  BERRY,  Tnistee,  et  al. 

Opinion  of  Court  below.  [259  Pa. 

both  parcels  of  coal.  They  died,  seized  of  that  estate  in 
both,  and  it  is  now  in  their  personal  representatives.  But 
during  all  the  time  for  which  accounting  is  asked,  the 
mining  has  been  done  by  Jermyn  &  Company  under 
their  sublease  of  April  1, 1887,  copy  of  which  is  set  forth 
as  Exhibit  One  in  their  separate  answer.  The  fact  is 
noted  that  parties  to  this  instrument  defined  as  "mer- 
chantable coal"  everything  above  the  size  known  as  pea, 
but  stipulated  for  a  given  royalty  on  all  sizes  including 
pea  as  well  as  still  smaller  sizes.  The  books  and  ac- 
counts of  production  in  evidence  are  those  of  Jermyn 
&  Company.  . 

4.  The  lessor  died  in  1873  and  was  succeeded  in  title 
by  his  four  sons.  One  of  these  was  George  K.,  original 
plaintiflf  here.  Another  was  Lyman  K.,  who  sold  and 
transferred  his  share  to  Mr.  Lacoe,  one  of  the  lessees.  In 
that  state  of  the  title  the  parties  in  interest,  by  writing 
18th  February,  1880,  modified  the  provisions  of  the  leases 
so  as  to  subject  the  tract,  both  surface  and  subsurface,  to 
certain  uses  for  the  benefit  of  mining  operations  on  an 
adjoining  tract  so  long  as  might  be  needed,  regardless  of 
the  expiration  of  the  terms  of  the  leaseholds  unless  ended 
by  forfeiture.  The  only  other  modification  had  to  do  with 
furnishing  the  fifty  tons  of  coal.  This  was  changed  by 
apportioning  the  amount  equally  between  the  parties  en- 
titled,  specifying  the  place  where  delivery  was  to  be  made 
on  demand,  and  providing  that  the  right  to  demand  it 
should  be  exercised  each  year.  For  the  contents  of  these 
several  writings  reference  is  made  to  copies  exhibited  in 
the  bill  as  A,  B  and  C,  respectively. 

5.  Up  to  that  time  no  mining  of  consequence  had  been 
done  under  the  earlier  lease,  though  the  minimum  royalty 
had  been  regularly  paid.  Later  there  was  an  unsuccess- 
ful attempt  by  lessees  to  apply  these  payments  on  ac- 
count of  the  mining  which  had  been  done  in  the  Marcy 
vein  under  the  second  lease.  This  brought  on  a  bill  for 
accounting  in  1888.  The  operations  for  which  account- 
ing is  now  demanded  go  back  to  1891  in  the  Marcy,  and 


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DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al.      13 
1917.]  Opinion  of  Court  below, 

to  1899  in  the  lower  veins  governed  by  the  earlier  lease. 
Back  of  1891  there  had  been  no  mining  except  in  the 
Marcy  and  it  is  drawn  in  question  only  incidentally  in 
connection  with  defendant's  claim  that  the  royalty  unit 
is  res  adjudicata  by  force  and  effect  of  the  decree  of  Oc- 
tober 2,  1893,  in  the  former  suit.  See  Drake  v.  Lacoe  et 
al.,  157  Pa.  17. 

6.  The  meaning  of  the  "miners^  weight'^  as  used  in  the 
lease  of  1863  is  the  key  to  the  question  in  dispute.  If,  as 
contended  by  defendants,  it  is  the  equivalent  of  a  ton  of 
'prepared  sizes"  of  coal  ready  for  shipment  to  market, 
then  admittedly  there  was  nothing  to  account  for  on  that 
score  when  suit  was  brought,  as  payment  had  been  either 
made  or  tendered  in  full  of  all  that  defendants  were 
bound  to  pay  by  the  terms  of  the  contract.  Indeed,  in 
that  case  they  have  overpaid.  The  term  "prepared  sizes" 
or  "prepared  coal"  includes  nothing  below  chestnut ;  so 
it  is  not  disputed  that  if  the  language  of  this  lease  was 
effective  to  limit  the  royalty  to  prepared  sizes  of  coal,  the 
pea,  buckwheat  and  other  so-called  steam  sizes  would  go 
free.  On  the  other  hand  it  is  equally  undisputed  that  in 
case  of  the  Marcy  the  lessees  paid  on  all  sizes  without 
question  until  a  comparatively  recent  date.  They  now 
deny  liability  for  anything  below  chestnut  plus  an  allow- 
ance for  loss  in  tonnage  of  prepared  sizes  due  to  breaking 
the  coal  down  in  order  to  supply  the  market  demand  of 
later  years  for  chestnut  and  smaller  sizes.  To  cover  their 
estimate  of  the  value  of  plaintiff's  equity  arising  in  that 
way  they  now  include  in  their  tender  the  royalty  on 
52  21/100  i)er  cent,  of  the  pea  which  goes  to  market,  and 
claim  entire  exemption  only  for  sizes  below  that. 

7.  This  view  seems  to  have  originated  since  1900,  or 
soon  after  active  operations  began  under  the  1863  lease. 
It  is  candidly  admitted  by  Mr.  Berry  to  have  been  due  to 
the  outcome  of  the  "Warrior  Run  Case,"  i.  e.  Wright  v. 
Coal  Co.,  182  Pa.  514,  which  was  decided  in  1897.  It  could 
hardly  have  been  entertained  before  1900,  as  a  payment 
relied  upon  to  settle  a  large  part  of  the  claim  for  mining 


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14      DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al. 

Opinion  of  Court  below.  [259  Pa. 

in  the  Marcy  was  made  October  25th,  that  year.  This  is 
evidenced  by  a  voucher  made  out  by  defendants  covering 
in  detail  the  total  yield  from  1891  to  April,  1897,  when 
the  operation  in  this  vein  was  discontinued  in  the  belief 
that  it  was  exhausted.  Thus  they  paid  on  the  marketable 
product  at  that  time.  While  the  same  is  true  of  the  ear- 
lier payment  to  satisfy  the  decree  in  Drake  v.  Lacoe  et  al., 
supra,  covering  the  antecedent  mining  in  that  vein,  it  is 
also  true  that  it  included  nothing  below  chestnut  as  that 
was  the  smallest  size  going  to  market  during  the  period 
involved  in  that  accounting,  which  was  from  1871  to 
1876.  Hence,  there  was  no  specific  occasion  to  claim  im- 
munity as  regards  smaller  marketable  sizes  in  that  in- 
stance. But  not  so  in  respect  to  the  payment  of  1900  for 
the  operations  between  1891  and  1897,  as  at  that  time  it 
is  not  disputed  that  both  pea  and  buckwheat  were  mar- 
keted, and  that  both  were  voluntarily  accounted  for  in 
that  settlement. 

8.  The  voucher  of  1900  appears  by  copy  as  defendant's 
Exhibit  A  in  the  separate  answer  on  part  of  lessees,  and 
also  as  their  Exhibit  No.  1  in  the  proofs,  to  which  refer- 
ence is  made  for  its  contents.  The  fact  is  here  noted 
that  plaintiffs  seek  to  avoid  its  prima  facie  effect  on  the 
allegation  that  it  was  executed  and  delivered  by  their 
testator  on  the  faith  of  an  oral  understanding  that  it 
didn't  mean  what  it  says,  but  only  a  payment  on  account 
which  could  be  accepted  without  prejudice.  It  is  also 
noted  that  the  parties  have  at  all  times  treated  the  half 
yearly  payments  under  the  lease  for  this  vein  as  falling 
due  the  first  of  April  and  October  as  in  case  of  the  earlier 
lease. 

9.  Later,  more  coal  being  found  in  the  Marcy,  mining 
was  resumed  there  in  1910  in  connection  with  that  being 
carried  on  in  the  lower  veins.  Before  the  end  of  March, 
1914,  the  new  operation  was  complete  and  the  vein 
finally  abandoned.  No  separate  account  of  the  ship- 
ments from  this  source  was  kept  during  that  period  and 
the  marketable  tonnage  can  only  be  calculated  from  the 


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DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al.      15 
1917.]  Opinion  of  Court  below. 

quantity  which  came  to  the  breaker  in  the  mine  cars,  as 
to  which  a  record  was  kept  of  the  total  number.  But 
this  involves  some  dispute  as  to  the  average  weight  of  the 
car  content.  Plaintiffs  say  it  was  7,099,  and  defendants 
5,732  pounds. 

10.  By  mutual  consent  of  the  parties  Mr.  George  E. 
Stevenson,  a  competent  engineer,  was  designated  by  the 
court  to  make  an  independent  test  of  the  weights.  Upon 
what  is  believed  to  have  been  a  fair  and  adequate  test  he 
makes  the  average  6,641  pounds  per  car.  That  is  some- 
where near  midway  between  the  opposing  figures  of  the 
parties  and  is  the  figure  adopted  in  view  of  the  conclus- 
ion founded  upon  the  testimony  of  Mr.  Corcoran,  general 
manager  of  the  Jermyn  &  Company  operation  since  its 
inception,  that  the  weights  have  at  all  times  been  sub- 
stantially uniform.  The  number  of  cars  from  this  vein 
during  the  years  in  question  was  33,270,  making  a  gross 
tonnage  of  99,229.08  going  into  the  breaker.  There  is  no 
reason  to  believe  there  was  any  falling  off  in  percentage 
of  yield  as  compared  with  that  of  1896-7,  the  last  year  for 
which  a  separate  account  had  been  kept,  when  it  was 
71  9/10  (71  9/10%) ;  and  that  is  adopted  as  the  per- 
centage applicable  to  the  years  1909  to  1914.  This  would 
make  a  marketable  tonnage  of  70,719.75  tons  for  that 
period;  and  the  fact  is  accordingly  so  found.  If  the 
royalty  is  payable  on  that  basis  it  would  amount  to  |7,- 
091.98,  of  which  plaintiffs'  share  would  be  f  1,773.  The 
yearly  production  appears  by  computation  shown  in 
blueprint  hereto  attached  and  marked  B,  to  which  ref- 
erence is  made  for  the  half  yearly  amounts  with  interest 
thereon  to  October  1,  1915,  of  $423.30,  a  total  of  |2,- 
196.30. 

11.  This  calculation  takes  into  account  neither  the 
fuel  coal  used  by  the  operator,  nor  plaintiffs'  claim  for 
pillar  coal  based  on  the  contention  that  under  the  terms 
of  the  contract  in  the  light  of  an  alleged  usage  of  the 
industry  at  an  early  day,  the  lessor  was  entitled  to  have 
approximately  one-third  of  the  coal  left  in  place  as  pil- 


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16      DRAKE  et  aL,  Exrs.,  v.  BERRY,  Trustee,  et  al. 

Opinion  of  Court  below.  [259  Pa. 

lars  for  support  of  the  surface ;  and,  none  being  so  left, 
to  that  extent  the  mining  was  wrongful.  Hence,  the 
claim  that  pro  tanto  defendants  should  account  for  the 
value  of  the  coal  in  place.  While  the  quantity  from  that 
source  may  be  susceptible  of  calculation  from  certain 
data  in  evidence,  for  reasons  hereinafter  stated  it  has 
not  been  calculated. 

(Lower  veins — 1863  lease.) 

12.  In  the  veins  below  the  Marcy  the  mining  began  in 
the  fall  of  1899  and  is  still  in  progress.  The  minimum 
was  accepted  regularly  until  March  31,  1905,  inclusive. 
From  that  time  ever  since  it  has  been  refused  because  of 
the  dispute  culminating  in  the  present  suit.  No  report 
of  the  tonnage  was  made  until  1911,  apparently  because 
it  was  then  for  the  first  time  formally  demanded.  The 
omission  to  report  on  the  one  side,  and  to  make  demand 
on  the  other,  had  been  due  to  the  fact  that  the  minimum 
for  years  gone  by  had  amounted  to'  enough  to  cover  the 
mining  for  some  years  after  actual  operations  began.  On 
defendant's  theory  the  advance  minimum  became  ex- 
hausted on  March  31,  1913.  There  having  been  no  ton- 
nage to  account  for  before  1900  as  in  case  of  the  Marcy, 
there  has  been  no  period  of  the  mining  under  this  lease 
when  the  parties  settled  with  each  other  on  the  basis  of 
the  marketable  tonnage.  But  in  addition  to  the  mini- 
mum falling  due  since  April  1,  1905,  defendants  have 
tendered  a  further  sum  to  cover  plaintiffs'  share  of  the 
excess  payable  on  their  present  theory  of  liability  for 
prepared  sizes  and  a  percentage  of  the  pea. 

13.  According  to  the  usage  prevailing  in  this  region  in 
1863  the  term  "miners'  weight"  meant  the  gross  ton  plus 
10%,  or  2,464  pounds  in  the  mine  car.  It  was  afterwards 
increased  so  that  while  it  varied  somewhat  as  between 
different  sections  of  this  valley,  at  Old  Forge  and  vicin- 
ity since  the  early  '70s  it  has  been  3,024  pounds.  In 
either  case  it  was  the  weight  of  mine-run  material  that 
the  miner  must  produce  in  order  to  get  paid  for  mining 
a  ton  of  coal,  the  excess  being  a  more  or  less  arbitrary  al- 


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DEAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al.      17 
1917.]  Opinion  of  Court  below. 

lowance  against  him  for  refuse  and  waste  in  the  mine  car 
content 

Defendants  claim  ttiat  instead  of  a  fixed  quantity,  the 
term  was  defined  in  Drake  v.  Shiffer,  supra,  to  mean 
such  amount  of  material  in  the  mine  car  as  should  from 
time  to  time  be  agreed  upon,  not  by  the  parties  but,  by 
and  between  operator  and  miner  as  sufficient  to  yield  a 
ton  of  prepared  coal  after  passing  through  the  breaker ; 
and  as  such  would  be  an  indefinite  and  variable  quantity 
depending  upon  the  character  of  the  vein  material  for 
the  time  being,  so  that  by  a  sort  of  circumlocution  it 
amounted  to  an  agreement  for  ten  cents  a  ton  on  "pre- 
pared sizes"  only.  If  that  be  so,  they  are  in  no  default 
for  the  reason  already  stated. 

It  may  be  added  that  for  the  purpose  of  keeping  their 
tender  good  it  was  maintained  at  bar  by  paying  into 
court  for  plaintiffs'  use  the  sum  of  |5,725.29  sec.  reg. 

14.  Plaintiffs  demand  an  accounting  at  ten  cents  a  ton 
of  2,464  pounds  in  the  mine  car  before  the  coal  went 
into  the  breaker.  This  quantity  can  now  be  determined 
only  by  the  same  method  of  calculation  mentioned  in 
case  of  the  Marcy.  (See  9th  conclusion  above.)  The 
number  of  cars  appears  by  the  operator's  books.  At  the 
same  average  weight  the  total  to  October  1,  1915,  would 
be  549,047  mine  tons  if  the  ton  be  taken  at  2,464  pounds. 
At  3,024  pounds  for  that  factor  it  would  be  447,385  tons. 

This  date  is  adopted  as  limiting  the  period  to  be  ac- 
counted for  because  it  was  the  latest  date  to  which  the 
calculation  could  be  carried  at  the  time  when  the  issue 
went  to  trial. 

15.  It  follows  that  on  this  basis  one-fourth  of  the  roy- 
al^ to  that  date  would  be  either  |13,726.18  or  |11,184.63 
according  as  the  lower  or  higher  unit  should  be  taken  as 
the  ''miners^  weight"  In  either  case  the  figure  would  be 
subject  to  a  credit  of  |5,125  by  reason  of  the  minimum 
payments  accepted  by  plaintiffs  or  their  testator.  In  the 
one  case  the  royalty  would  be  covered  down  to  April  1, 
1906,  and  in  the  other  to  October  1, 1907.    One  of  these 

Vol.  C3CLIX— 2 


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18      DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al. 

Opinion  of  Court  below,  [259  Pa. 

would  therefore  become  the  interest  date  if  lessees  are 
accountable  on  either  basis.  The  result  is  that  in  the 
one  case  the  royalties  with  accrued  interest  would 
amount  to  |10,639.97;  and  on  the  other  to  |7,227.54  on 
October  1,  1915,  as  shown  by  detailed  computation  in 
blueprints  hereto  attached,  marked  respectively  Al  and 
A2. 

16.  Associated  with  the  question  of  pillar  coal,  men- 
tioned in  the  eleventh  Conclusion,  is  that  of  damages  for 
surface  subsidence  occasioned  by  mining  out  the  pillars. 
None  were  left  in  either  the  Marcy  or  the  Clark  vein  next 
below,  in  both  of  which  the  mining  has  been  completed. 
Defendants  intend  to  mine  the  lower  veins  to  the  same 
extent,  but  no  further  injury  is  apprehended  from  that 
source.  That  there  has  been  some  disturbance  of  the 
surface  is  not  denied,  and  lessees  admit  their  liability  on 
that  score  as  well  as  the  jurisdiction  of  equity  to  take 
account  of  the  damages  in  this  proceeding.  The  dispute 
is  as  to  the  nature  and  extent  of  the  injury  and  its 
amount  in  dollars  and  cents,  as  to  which  the  difference  is 
marked.  Title  to  something  like  forty-five  acres  of  sur- 
face remains  in  lessors'  estate.  It  is  believed,  and  ac- 
cordingly found,  that  the  subsidence  is  now  complete 
and  that  it  affects  not  to  exceed  three  acres  of  which  the 
value  before  the  injury  was  not  more  than  f900;  and 
that  the  depreciation  by  reason  of  the  injury  does  not 
exceed  fSOO.  The  legal  injury  was  complete  upwards  of 
three  years  ago. 

The  requests  for  specific  findings  of  fact  not  substan- 
tially covered  by  the  foregoing  are  disposed  of  as  fol- 
lows: 

PLAINTIFFS'  BBQUBSTS. 

13.  Payments  of  minimum  royalty  on  the  lease  of  No- 
vember 28,  1863,  were  accepted  from  1891  to  1905,  but 
notice  was  given  that  miners'  weight  was  the  standard, 
that  is,  2,464  pounds  per  ton,  and  payment  demanded  at 
ten  cents  per  ton. 


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DRAKE  et  al,  Exrs.,  v,  BERRY,  Trustee,  et  al.      19 
1917.]  Opinion  of  Court  below. 

Answer:  It  is  so  found. 

14.  The  receipt  offered  in  evidence  by  the  defendants, 
of  October  25,  1900,  signed  by  George  K.  Drake,  was 
signed  by  him  upon  the  representation  that  it  would  not 
be  used  against  him  in  any  lawsuit,  but  the  money  would 
be  a  payment  on  account.  It  was  for  coal  mined  from 
the  Marcy  vein  under  the  lease  of  1865. 

Answer:  It  is  not  so  found,  except  that  it  is  true  the 
coal  reierred  to  was  mined  from  the  Marcy  vein  under 
the  1865  lease. 

15.  Statements  of  the  total  coal  shipped  and  sold 
taken  from  the  Marcy  vein  were  rendered  to  the  plain- 
tiflfs  from  1891  to  1897.  The  coal  was  paid  for  and  re- 
ceipt" given  October  25,  1900,  on  oral  condition  that  it 
was  on  account  and  that  it  was  not  to  be  used  in  any 
suit. 

Answer :  It  is  so  found,  except  as  to  the  alleged  "oral 
condition"  which  is  not  so  found. 

defendants'  requests. 

4.  When  the  leases  involved  in  this  suit  were  made,  the 
only  coal  that  was  merchantable  or  marketable  was  what 
was  known  then,  and  is  known  now,  as  the  prepared 
sizes,  consisting  then  of  part  of  the  chestnut  coal  and 
the  sizes  larger,  and  consisting  now  of  all  of  the  chestnut 
coal  and  the  sizes  larger. 

Ajiswer :  It  is  so  found.   . 

6.  At  the  time  the  leases  involved  in  the  present  action 
were  made  the  phrase  "miners'  weight"  meant  such  quan- 
tity of  coal,  slate  and  dirt  as  was  agreed  upon  between 
the  operators  and  the  miners  to  be  suflftcient  to  make  a 
ton  of  prepared  coal,  that  is  to  say,  such  a  quantity  of 
the  run-of-mine  material,  including  dirt,  slate  and  rock, 
as  should  from  time  to  time  be  agreed  upon  between 
operator  and  miner  to  be  necessary  to  produce  a  ton  of 
prepared  coal. 


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20      DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al. 

Opinion  of  Court  below.  [259  Pa. 

Answer :  It  is  not  so  found.  For  further  answer  see 
the  thirteenth  general  conclusion  supra. 

Requests,  7,  8,  11  and  12,  ask  for  conclusions  of  law 
and  for  that  reason  are  declined  in  this  connection. 

The  facts  are  believed  to  warrant  the  following 

C50NCLUSI0NS  OF  LAW : 

1.  By  the  terms  of  the  lease  of  1863  lessees  and  their 
successors  in  title  became  accountable  at  the  stipulated 
royalty  on  the  same  tonnage  for  which  the  miners  were 
for  the  time  being  paid.  During  the  period  now  in  ques- 
tion the  unit  for  that  purpose  was  the  so-called  miner's 
ton  of  3,024  pounds  of  the  vein  maiterial  just  as  it  came 
from  the  mine  and  before  going  into  the  breaker. 

2.  Whether  the  same  was  true  of  the  1865  lease  need 
not  now  be  decided  because  the  parties  and  their  prede- 
cessors had  for  many  years  voluntarily  dealt  with  each 
other  on  another  basis  not  inconsistent  with  the  express 
terms  of  the  contract,  to  wit :  that  of  the  merchantable 
yield.  That  should  now  be  regarded  as  the  established 
rule  to  be  applied  to  the  mining  in  the  Marcy  vein. 

3.  Therefore  in  case  of  the  first  lease,  lessees  should 
account  at  ten  cents  per  ton  of  3,024  pounds  on  the  gross 
amount  of  the  mine  car  contents  going  into  the  breaker ; 
and  in  case  of  the  other  lease  at  the  same  price  for  the 
tonnage  of  all  sizes  which  went  to  market. 

4.  It  follows  that  the  amount  tendered  was  not  enough 
to  cover  the  claim ;  and  taking  the  account  down  to  Oc- 
tober 1,  1915,  with  the  accrued  interest,  lessees  were 
then  owing  for  royalties  under  the  first  lease  the  sum  of 
$7,227.54,  and  under  the  other  $2,196.30,  as  shown  in  de- 
tail by  the  blueprints  hereto  attached  marked  respec- 
tively A2  and  B. 

5.  For  plaintiff's  share  of  the  damages  to  the  surface, 
defendants  should  account  and  pay  the  sum  of  f  125,  with 
damages  for  detention  equal  to  interest  at  six  per  cent, 
annually  since  the  inquiry  was  complete,  a  total  of 
$147.50. 


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DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al.      21 
1917.]  Opinion  of  Court  below. 

6.  The  evidence  is  insufficient  to  warrant  either  in- 
junction to  restrain  the  mining  or  forfeiture  of  the  con- 
tracts. 

7.  A  decree  should  be  entered  against  the  defendants 
representing  the  estates  of  Lacoe  and  Shififer  directing 
them  to  pay  to  the  plaintiffs  the  sum  of  $9,571.34,  with 
interest  from  October  1,  1915. 

8.  The  same  defendants  should  pay  the  costs. 

The  requests  for  legal  conclusions  not  covered  by  the 
forgoing  are  disposed  of  as  follows : 

PLAINTIFFS'  REQUESTS. 

2.  The  defendants  were  obliged,  under  the  custom  of 
mining  and  the  contract  between  the  parties,  to  leave  suf- 
ficient coal  for  the  support  of  the  surface.  Had  this  been 
done,  the  surface  would  not  have  been  injured,  and  the 
coal  so  left  would  have  been  the  plaintiffs'. 

Answer.  Refused.  There  was  no  covenant  to  support 
the  surface;  and  none  was  needed.  While  lessees  took 
title  to  all  the  coal,  together  with  the  right  to  mine  and 
remove  it,  they  could  only  exercise  their  right  subject  to 
liability  for  damages  in  case  of  injury  to  the  surface. 
There  was  a  sale  of  the  coal  with  adequate  mining  rights 
without  any  waiver  of  damages  for  surface  injury. 

3.  The  plaintiffs  should  be  paid  for  the  coal  taken 
which  was  necessary  to  support  the  surface,  at  fifty  cents 
a  ton,  its  value  in  place. 

Answer.  Refused. 

6.  Plaintiffs,  George  Drake  and  his  executors,  are  en- 
titled to  have  delivered  to  him  and  them  twelve  and  one- 
half  tons  of  coal  annually  from  1865  to  the  present,  or  to 
be  paid  therefor. 

Answer.  Refused.  The  proofs  fail  to  show  any  breach 
by  lessees  of  their  covenant  to  deliver  coal  on  demand  as 
provided  in  the  writing  of  1880. 

7.  The  proviso  of  the  lease  from  Lacoe  and  Shiffer  to 
Jermyn  &  Company  recognizes  the  right  of  support  of 


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22      DRAKE  et  al,  Exrs.,  v.  BERRY,  Trustee,  et  al. 

Opinion  of  Court  below.      '  [259  Pa. 

surface,  and  should  have  been  enforced  between  the  con- 
tracting parties,  and  must  now  be  enforced  by  decree  of 
this  court. 
Answer.  Refused. 

DEFENDANTS'  REQUESTS. 

1.  Where  the  demise  is  of  all  the  coal,  together  with 
the  right  to  mine  and  remove  the  same,  the  lessee  is  en- 
titled to  take  all  the  coal  for  a  price  to  be  ascertained  in 
the  stipulated  mode,  which,  in  the  present  case,  was  the 
payment  of  ten  cents  per  ton  on  prepared  sizes  only. 

Answer.  As  to  the  extent  of  lessees'  right  the  request 
is  affirmed ;  but  as  to  the  stipulation  for  royalty  on  pre- 
pared sizes  only,  it  is  refused. 

If  specific  answers  be  desired  in  case  of  the  omitted  re- 
quests, or  any  of  them,  they  will  be  supplied  on  excep- 
tions. 

DISCUSSION. 

I  find  myself  unable  to  agree  with  the  learned  counsel 
for  lessees  that  their  liability  is  limited  to  prepared  sizes 
of  coal,  and  was  so  determined  in  Drake  et  al.  v.  Lacoe 
and  Shiflfer,  157  Pa.  17.  That  decree  had  to  do  with  the 
Marcy  vein  only.  The  parties  were  held  to  their  own 
practical  interpretation  of  the  lease,  and  the  plaintiffs 
to  the  consequences  of  estoppel.  The  result  was  that 
lessees  were  required  to  pay  as  they  had  accounted,  viz : 
for  the  tonnage  which  went  to  market.  That  was  con- 
sistent not  only  with  the  mutual  conduct  of  the  parties 
in  their  respective  treatment  of  the  accounts  rendered 
during  the  progress  of  that  period  of  mining,  but  also 
with  the  terms  of  the  contract  itself  which  differ  from 
those  in  the  1863  lease  in  that  they  impose  the  obligation 
to  pay  upon  "all  the  merchantable  coal  mined  from  said 
vein."  The  mere  fact  that  at  the  period  then  in  question 
nothing  below  the  prepared  sizes  had  been  marketable, 
cannot  be  regarded  as  limiting  the  obligation  in  every 


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DRAKE  et  al,  Exrs.,  v.  BERHY,  Trustee,  et  al.      23 
1917.]  Opinion  of  Court  below. 

event;  and  heretofore  it  was  not  so  regarded  by  lessees. 
In  1876  the  mining  had  been  interrupted.  It  was  re- 
sumed in  1891  and  the  second  period  ran  from  that  date 
to  1897.  In  the  meantime  two  things  had  happened: 
(1),  Drake  v.  Lacoe  had  been  decided;  and  (2),  a  mar- 
ket demand  for  small  sizes  had  arisen — ^an  event  of  which 
lessees  were  getting  the  benefit:  See  lease  and  ac- 
counts of  Jermyn  &  Company.  While  lessees  did  not 
settle  for  the  royalties  accruing  during  this  period  until 
1900,  they  had  regularly  accounted,  as  they  eventually 
paid,  for  everything  that  went  to  market.  The  voucher 
for  that  settlement  doesn't  show  the  proportions  of  each 
size,  but  the  fact  is  freely  admitted  that  it  included  the 
small  sizes.  Evidently  the  delay  in  payment  was  due  to 
a  dispute  between  the  parties,  but  it  involved  no  question 
by  lessees  that  they  were  liable  to  that  extent,  as  that  was 
the  royalty  basis  for  which  they  were  then  contending. 
Thus  both  parties  are  now  trying  though  on  wholly 
different  grounds  to  break  the  force  and  the  im- 
plied effect  of  that  settlement.  It  conformed  to  the  meth- 
od of  accounting  that  had  been  approved  in  the  earlier 
ease  because  it  was  held  to  be  too  late  for  plaintiffs  to 
then  call  it  in  question.  That  reasoning  must  be  deemed 
to  apply  with  at  least  equal  force  at  this  late  day;  and 
to  both  parties  alike.  Plaintiffs'  attempt  to  avoid  the 
terms  of  their  testator's  receipt  by  parol  cannot  be  seri- 
ously entertained.  There  is  no  pretense  of  fraud  or  de- 
ceit as  to  its  contents.  On  the  contrary,  the  very  nature 
of  the  parol  evidence  necessarily  assumes  that  he  exe- 
cuted the  writing  with  full  knowledge  not  only  of  its  con- 
tents, but  of  its  prima  facie  legal  effect.  In  his  lifetime 
he  never  repudiated  it,  and  he  survived  many  years.  In 
the  face  of  positive  contradiction  on  the  other  side  it 
cannot  now  be  cancelled  for  the  benefit  of  his  successors 
on  the  allegation  that  it  was  signed  with  the  understand- 
ing that  its  effect  should  be  something  other  than  what 
he  knew  it  purported  to  be.    Needless  to  say,  if  that  can 


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24      DRAKE  et  al.,  Exrs.,  v,  BERRY,  Trustee,  et  al. 

Opinion  of  Court  below.  [259  Pa. 

be  done^  it  becomes  an  idle  formality  to  put  any  human 
transaction  in  writing. 

The  reciprocal  rights  and  liabilities  under  the  1863 
lease  are  unaffected  by  any  course  of  mutual  dealing  giv- 
ing rise  to  a  question  of  practical  construction  by  the 
parties.  So  far  as  drawn  in  controversy  in  the  former 
proceeding  it  was  there  ruled  adversely  to  lessees  that 
this  contract  had  not  become  merged  with  the  later  one 
then  in  suit ;  and  the  present  case  involves  no  such  claim. 
One  is  at  a  loss,  therefore,  to  see  upon  what  theoi'y  it  is 
now  contended  that  lessees  have  accounted  according  to 
the  royalty  basis  defined  in  that  case:  See  their  sepa- 
rate answer,  par.  4  and  5.  In  my  judgment  their  theory 
derives  no  support  from  Coal  Co.  v.  C.  &  I.  Co.,  225  Pa. 
211,  and  kindred  cases  founded  on  a  stipulation  for 
royalty  on  definite  sizes.  In  such  instances  the  parties 
necessarily  have  in  contemplation  the  marketable  yield 
as  the  royalty  basis. 

It  will  be  observed  that  nothing  is  said  in  this  lease 
about  "merchantable"  coal.  What  is  granted  is  "all  the 
coal  in,  under  and  upon,"  etc.  What  it  binds  lessees  to 
pay  is  ten  cents  a  ton  "for  all  coal  mined  and  removed 
from  the  premises."  If  nothing  more  had  been  said  a  dif- 
ferent question  might  arise  as  to  the  royalty  bearing  coal. 
But  the  parties  to  the  contract  saw  fit  to  adopt  a  stand- 
ard and  to  define  it  as  the  ton  for  which  the  miner  should 
be  paid.  That  is  the  undisputed  significance  of  the  term 
"miners'  weight,"  and  the  weight  is  taken  in  the  mine 
car  before  the  contents  go  into  the  breaker.  They  must 
be  presumed  to  have  used  the  term  deliberately  and  in 
that  sense.  It  was  manifestly  inapt  if  what  they  had  in 
mind  was  the  yield  either  of  "prepared  sizes"  or  of  "mer- 
chantable" coal  of  any  size  whatever.  So,  too,  if  they 
had  intended  to  commit  themselves  unalterably  to  2,464 
pounds,  then  constituting  the  miners'  ton,  it  would  have 
been  quite  as  easy,  and  much  less  awkward,  to  say  so  in 
so  many  words  or  figures.  They  were  at  pains  to  use  a 
trade  term  which  could  rationally  serve  but  one  purpose, 


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DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al.      25 
1917.]  Opinion  of  Court  below. 

namely,  to  make  the  royalty  payable  on  the  same  tonnage 
for  which  the  miners  were  being  paid  during  the  period 
of  production.  As  between  that  and  a  fixed  and  invaria- 
ble weight,  it  must  be  presumed  they  exercised  their 
choice  deliberately  and  for  reasons  satisfactory  to  them- 
selvefs.  But  this  view,  say  the  counsel  for  plaintiffs,  puts 
the  contract  of  the  parties  to  the  hazard  of  alteration  at 
the  hands  of  strangers^  viz :  the  operator  and  the  miner. 
The  obvious  answer  is,  that  the  hazard,  if  any,  looks  both 
ways;  each  party  incurred  the  like  risk;  instead  of  an 
increase,  the  vicissitudes  of  the  business  might  have  led 
to  a  decrease  in  the  weight  of  the  unit ;  and  it  was  for 
the  parties  to  say  whether  they  chose  to  take  that  specu- 
lative chance. 

As  to  plaintiffs'  claim  for  pillar  coal  it  is  noted  above 
in  the  eleventh  conclusion  of  fact  that  the  quantity  has 
not  been  determined.  The  grant  was  entire.  It  passed 
all  the  coal  with  the  right  to  mine  and  take  it  away.  As 
against  the  express  terms  of  such  conveyance  no  former 
custom  of  mining  can  be  successfully  invoked :  Coxe  v. 
Heisley,  19  Pa.  242;  Silliman  v.  Whitman,  11  Pa.  Su- 
perior Ct  243 ;  Stoddard  v.  Emery,  128  Pa.  436 ;  Harris 
V.  Sharpless^  202  Pa.  243.  Neither  is  the  question  af- 
fected by  the  restriction  on  methods  of  operation,  inter 
alia,  "that  sufllcient  pillars  of  coal  shall  be  left  to  sup- 
port the  roof  over  the  gangways  and  the  usual  protection 
of  the  mines  generally."  This  must  be  deemed  a  pro- 
vision, not  for  the  benefit  of  the  surface,  but  for  the  pres- 
ervation of  the  colliery  with  a  view  to  winning  the  maxi- 
mum quantity  of  coal,  as  in  the  analogous  case  of  Miles 
V.  Coal  Co.,  250  Pa.  147,  the  ruling  in  which  is 
believed  to  be  decisive  against  the  plaintiffs  in  this 
particular;  and  for  that  reason  it  was  deemed  un- 
necessary to  make  any  calculation  of  the  quantity 
taken  from  pillars  on  second  mining.  Lessees  are 
at  liberty  to  take  all  the  coal  at  the  stipulated  royal- 
ty; their  liability  for  damages  to  the  surface  is  another 
thing  and  is  not  contested.    The  fact  having  been  found, 


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26      DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al. 

Opinion  of  Court  below.  [259  Pa. 

however,  that  there  is  no  reason  to  apprehend  further 
surface  disturbance,  there  is  no  occasion  to  anticipate 
any  injury  calling  for  preventive  relief,  and  the  parties 
may  be  properly  left  to  their  action  for  damages  if 
further  injury  should  occur :  Woods  v.  Coal  Co.,  230  Pa. 
197. 

Let  a  decree  nisi  be  entered  in  accordance  with  thie  sev- 
enth and  eighth  general  conclusions  of  law ;  exceptions, 
if  any,  sec.  reg. 

The  final  decree,  from  which  both  sides  have  appealed, 
is  as  follows  : 

FINAL  DBCREB. 

And  now,  20th  day  of  January,  1917,  this  cause  came 
on  to  be  heard  on  bill,  answer,  replication  and  proofs, 
and  was  fully  argued  by  counsel.  Exceptions  having 
been  filed  to  the  findings  and  conclusions  of  the  Chancel- 
lor, the  same  were  argued  before  the  court  en  banc,  and 
thereupon,  after  full  consideration  thereof,  it  is  ordered, 
adjudged  and  decreed,  as  follows,  to  wit: 

First. — By  the  terms  of  the  lease  of  1863,  the  lessees 
defendants  became  accountable  to  the  plaintiffs  for  roy- 
alties on  coal  mined  and  unpaid  for,  at  royalty  per 
miners'  ton  of  three  thousand  and  twepty-four  (3,024) 
pounds  of  vein  material,  in  the  sum  of  f  7,227.54,  with 
interest  from  October  1,  1915. 

Second. — By  the  terms  of  the  lease  of  1865,  the  same 
defendants  owe  the  plaintiflfs  for  royalties  for  coal  mined 
from  the  Marcy  vein,  under  said  lease,  and  unpaid,  the 
sum  of  12,196.30,  with  interest  from  October  1,  1915. 
This  is  the  amount  due  at  ten  cents  per  ton  for  coal 
shipped  to  market. 

Third. — By  the  terms  of  the  leases  between  the  parties, 
the  lessees  defendants  are  indebted  to  the  plaintiffs  for 
damages  to  the  surface,  due  to  the  subsidence  thereof, 
in  the  sum  of  ?125,  with  damage  for  the  detention  in  the 
sum  of  $22.50,  or  f  147.50. 


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DRAKE  et  al,  Exrs.,  v.  BERRY,  Trustee,  et  al.      27 
1917.]  Opinion  of  Court  below — Arguments. 

Fourth. — ^An  injunction  to  prevent  the  further  mining 
of  coal  in  pillars^  is  refused. 

Fifth. — ^An  injunction  to  restrain  the  mining,  or  de- 
creeing forfeiture  of  the  contracts,  is  denied. 

Sixth. — It  is  ordered  that  lessees  defendants  pay  to  the 
plaintiffs  the  sums  as  decreed  in  paragraphs  1st,  2d  and 
3d,  as  follows : 
For  coal  mined  and  unpaid  for  in  the  veins 

below  the  Marcy  vein, |7,227.54 

For  coal  mined  and  unpaid  for  in  the  Marcy 

vein, ,     2,196.30 

For  damage  to  the  surface, 147.50 


Total, $9,571.34 

with  interest  from  October  1, 1915. 

Seventh. — All  costs  in  the  suit  to  be  paid  by  the  lessees 
defendants. 

Exception  to  the  final  decree  noted  for  plaintiffs  and 
defendants. 

Plaintiffs  and  defendants  appealed. 

Errors  assigned  were  in  dismissing  exceptions  to 
various  findings  of  fact  and  law  and  the  decree  of  the 
court. 

Samuel  B.  Price,  with  him  John  H.  Price,  and  Cole  B, 
Price,  for  George  Drake  et  al. — Defendants  should  ac- 
count for  each  ton  of  2,464  pounds  of  mined  material: 
1  Addison  on  Contracts,  421,  Sec.  282;  Jones  et  al.  v. 
Giles  et  al.,  10  Exch.  119 ;  Hughes  v.  Humphreys,  3  Ell. 
&  Bl.  954  (77  Eng.  C.  L.  Rep.  954) ;  35  Cyc.  211 ;  30  A. 
&  E.  Enc.  of  Law,  463,  and  cases  2d  Ed. ;  Forsyth  v.  No. 
American  Oil  Co.,  53  Pa.  168;  Philadelphia  City  Pass. 
By.  Co.  V.  Henrice,  92  Pa.  431 ;  McAleer  v.  McMurray, 
58  Pa.  126 ;  Hershinger  v.  Penna.  R.  R.  Co.,  25  Pa.  Su- 
perior Ct.  147. 

The  contract  should  be  construed  according  to  the 
laws/ usages  and  facts  existing  at  the  time  of  its  execu- 


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28      DRAKE  et  al,  Exrs.,  v.  BERRY,  Trustee,  et  al. 

Arguments.  [259  Pa. 

tion:  Reiser  v.  Wm.  Tell  Sav.  Fund  Assn.,  39  Pa.  137; 
Merriam  v.  U.  S.,  107  U.  S.  437;  27  Law  Ed.  531;  Ber- 
ridge  v.  Glassey,  112  Pa.  442;  Beading  v.  United  Trac- 
tion Co.,  202  Pa.  571,  575. 

The  custom  of  miners  is  admissible  to  explain  the 
meaning  of  the  words  of  a  mining  lease:  Brown  v. 
Brooks,  25  Pa.  210;  Williamson  v.  McClure,  37  Pa.  402; 
1  Addison  on  Contracts  374 ;  Carey  v.  Bright,  58  Pa.  70 ; 
Williams  v.  Summers  et  al.,  45  Ind.  532 ;  1  Greenleaf  on 
Ev.,  Sec.  282-282a,  page  319,  12th  Ed. ;  Brown  on  Parol 
Ev.  202;  17  A.  &  E.  Enc.  of  Law,  18,  2d  Ed.;  Hillside 
Coal  &  Iron  Co.  v.  Sterrick  Creek  Coal  Co.,  239  Pa.  359; 
Bickf  ord  v.  Cooper  &  Co.,  41  Pa.  142. 

The  damages  awarded  for  breach  of  surface  support 
are  inadequate  and  the  measure  of  damages  so  restricted 
that  there  is  no  remedy ;  an  injunction  shbuld  also  issue : 
Berkey  v.  Berwind  White  Coal  Mining  Co.,  220  Pa.  65; 
Streng  v.  Buck  Run  Coal  Co.,  241  Pa.  560 ;  Woods  v. 
Pittsburgh  Coal  Co.,  230  Pa.  197;  Jones  v.  Wagner  et 
al.,  66  Pa.  429;  Coleman  et  al.  v.  Chadwick,  80  Pa.  81; 
Carlin  &  Co.  v.  Chappel,  101  Pa.  348;  Williams  v.  Hay, 
120  Pa.  485;  Horner  et  al.  v.  Watson  et  al.,  79  Pa.  242; 
Scranton  et  al.  v.  Phillips  et  al.,  94  Pa.  15;  Penn  Gas 
Coal  Co.  V.  Versailles  Fuel  Gas  Co.,  131  Pa.  522. 

The  court  should  have  decreed  a  forfeiture  of  the 
leases:  Munroe  v.  Armstrong,  96  Pa.  307;  Brown  v. 
Vandergrif t,  80  Pa.  142 ;  Andrews  v.  Landis,  24  Pa.  D. 
R.  876;  Chauvenet  v.  Person,  217  Pa.  464;  Steelsmith 
V.  Gartland,  44  L.  R.  A.  107. 

F.  W.  Wheaton  and  P.  F.  O'Neill,  with  them  8.  W. 
Rhoads  and  R.  W.  Rymer,  for  John  W.  Berry,  Trustee, 
et  al. — ^At  the  date  of  the  leases  prepared  coal  included 
chestnut  and  all  larger  sizes,  and  merchantable  coal 
consisted  entirely  of  prepared  coal :  Wright  v.  Warrior 
Run  Coal  Co.,  182  Pa.  514;  Dunham  v.  Haggerty,  110 
Pa.  560;  Lance  v.  Lehigh  &  Wilkes-Barre  Coal  Co.,  163 
Pa.  84;  New  York  &  Pittston  Coal  Co.  v.  Hillside  Coal 


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DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al.      29 
1917.]  Arguments — Opinion  of  the  Court. 

&  Iron  Co.,  225  Pa.  211 ;  Drake  et  al.  v.  Lacoe  et  al.,  157 
Pa.  17. 

"Miners'  weight"  means  such  quantity  of  coal,  slate 
and  dirt  as  was  agreed  upon  between  the  operators  and 
the  miners  to  be  sufficient  to  make  a  ton  of  prepared 
coal :  Drake  et  al.  v.  Lacoe  et  al.,  157  Pa.  17. 

OPINION  BY  Mr.  Chief  Justice  Brown,  June  30, 1917 : 
The  bill  filed  by  Charles  Drake,  deceased,  in  which  his 
executors  are  the  substituted  plaintiffs,  is  for  an  ac- 
counting by  the  defendants  for  coal  mined  under  two 
leases.  The  prayers  are  also  for  a  decree  declaring  the 
leases  forfeited  for  conditions  broken,  for  an  injunction 
if  they  should  not  be  declared  forfeited,  and  for  the  as- 
certainment of  damages  alleged  to  have  been  sustained 
by  reason  of  the  caving  in  and  falling  of  the  surface  of 
the  demised  lands,  caused  by  the  mining  and  removal  by 
the  defendants  of  the  pillars  of  coal  under  the  surface. 
The  material  facts,  all  of  which  were  properly  found  by 
the  learned  chancellor  below,  appear  in  its  opinion^  made 
part  of  the  reporter's  notes.  Prom  the  decree  which  fol- 
lowed them  and  the  legal  conclusions  based  upon  them 
both  sides  have  appealed. 

By  the  first  lease,  dated  November  28,  1863,  Drake 
leased  to  the  defendants'  predecessors  all  the  coal  under 
seventy-eight  acres  of  land  in  Lackawanna  Township, 
then  Luzerne  (now  Lackawanna)  County,  except  the 
upper  or  Marcy  vein,  the  lessees  agreeing  to  pay  an 
annual  minimum  rental  of  $500,  for  which  they  were 
permitted  to  remove  five  thousand  tons  of  coal  each  year 
during  the  term  of  the  lease,  which  was  for  ten  years  and 
for  such  other  and  further  time  as  the  lessees  and  their 
legal  representatives  should  continue  to  pay  the  rent  as 
named  in  the  lease,  unless  the  said  term  should  sooner 
be  ended  by  nonpayment  of  rent.  For  all  coal  mined  in 
excess  of  five  thousand  tons  a  year  the  lessees  were  to 
pay  ten  cents  per  ton.  The  chief  contention  between  the 
parties  to  this  proceeding  is  as  to  the  meaning  or  effect  to 


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30      DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al. 

Opinion  of  the  Court.  [259  Pa. 

be  given  to  the  words  in  the  lease  "miners'  weight  to  be 
the  standard"  of  each  ton  of  coal  mined. 

In  Drake  et  al.  v.  Lacoe  et  al.,  157  Pa.  17,  we  construed 
the  words  "miners'  weight,"  used  in  the  lease  of  No- 
vember 28,  1863,  to  mean  "such  quantity  of  coal,  slate 
and  dirt,  as  was  agreed  upon  between  the  operators  and 
the  miners  to  be  sufficient  to  make  a  ton  of  prepared 
coal."  In  1863  a  "miners'  weight"  ton  in  the  anthracite 
region,  in  which  the  Drake  property  is  located,  was  a 
gross  ton  plus  ten  per  cent.,  or  2,464  pounds,  in  the  mine 
car.  It  was  afterwards  increased,  and  while  it  has 
varied  somewhat  in  different  sections  of  the  valley  in 
which  the  leased  premises  are  located,  it  has  been  3,024 
pounds  in  their  vicinity  since  about  the  year  1870 ;  but, 
however  it  may  have  so  varied,  "miners'  weight"  ton  has 
always  been  t&e  weight  of  mine-run  material  which  the 
miner  must  produce  in-order  to  be  paid  for  mining  a  ton 
of  coal,  the  excess  being  a  more  or  less  arbitrary  allow- 
ance against  him  for  refuse  and  waste  in  the  mine  car  con- 
tent. During  the  period  for  which  an  accounting  is  asked 
a  "miners' weight"  ton  has  been  3,024  pounds,  and  upon 
that  basis  the  defendants  are  directed  by  the  court  below 
to  account  under  the  first  lease.  The  main  complaint  of 
the  plaintiffs  is  that  the  accounting  ought  to  be  made  on 
the  basis  of  2,464  pounds — ^a  "miners'  weight"  ton  at  the 
time  of  the  execution  of  the  lease  of  1863.  If  the  inten- 
tion of  the  parties  to  that  lease  was  that  the  then  "min- 
ers' weight"  ton  should  be  the  unvarying  standard  dur- 
ing the  whole  term  of  the  lease  upon  which  the  royalties 
were  to  be  paid,  they  readily  could,  and  most  naturally 
would,  have  fixed  it  in  figures  at  2,464  pounds,  for  they 
are  presumed  to  have  known  that  a  "miners'  weight"  ton 
— the  amount  of  mine-run  material  which  a  miner  must 
produce  in  order  to  be  paid  for  mining  a  ton  of  coal — 
would  vary  from  time  to  time  with  changes  in  the  quality 
of  the  material  obtained  from  the  mine.  "Miners' 
weight,"  as  we  define  it  in  Drake  et  al.  v.  Lacoe  et  al.,  is 
not  a  fixed,  unvarying  quantity  of  mine-run  material, 


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DRAKE  et  al.,  Exrs.,  v.  BERRY,  Trustee,  et  al.      31 
1917.]  Opinion  of  the  Court. 

but  is  such  quantity  of  the  same  as  operators  and  miners 
may  from  time  to  time  agree  as  being  necessary  or  suf- 
ficient to  produce  a  ton  of  prepared  coal.  This  varying 
standard  was  manifestly  adopted  by  the  lessor  and  les- 
sees when  they  used  the  well-known  trade  term  "miners' 
weight" — the  ton  weight  of  material  required  to  be  mined 
as  equivalent  to  a  ton  of  prepared  coal —  and  the  learned 
court  below  properly  held  that  the  accounting  must  be 
on  the  basis  of  a  "miners'  weight"  ton  as  fixed  and  agreed 
upon  by  the  operators  and  miners  during  the  accounting 
period. 

Nothing  said  in  Drake  et  al.  v.  Lacoe  et  al.  sustains  the 
contention  of  the  defendants  that  their  liability  is  limited 
to  prepared  sizes  of  coal.  The  decree  in  that  case  related 
to  the  lease  of  1865  of  the  upper  vein,  and  what  we  said 
was  that^  as  the  plaintiffs  and  defendants  had  placed 
their  own  interpretation  upon  its  terms,  they  were  both 
bound  by  it. 

We  need  add  nothing  to  what  was  said  by  the  court  be- 
low as  to  the  plaintiffs'  claim  for  pillar  coal,  and  we  con- 
cur in  its  conclusion  that,  under  the  evidence,  they  were 
iiot  entitled  to  an  injunction  to  restrain  further  mining, 
nor  to  a  decree  declaring  the  leases  forfeited. 

Each  appeal  is  dismissed  at  the  costs  of  the  appellants. 


Trevorton  Water  Supply  Co.  v.  Zerbe  Township, 

Appellant. 

Contracts — Municipal  contracts — Township  of  second  class — 
Water  supply — Acts  ultra  vires — Estoppel — Act  of  May  26,  1907, 
P.  L.  2S1. 

1.  Townships  of  the  second  class  are  not  properly  to  be  regarded 
as  mtmicipal  corx>orations,  nor  do  they  possess  the  implied  powers 
of  such  corporations.  They  are  only  involuntary  quasi  corpora- 
tions standing  low  in  the  scale  of  corporate  existence  and  they  can 
exercise  only  such  powers  as  are  expressly  conferred  upon  them  by 
itatiite. 


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32  TEBVORTON  W.  S.  CO.  v.  ZERBE  TWP.,  Appellant. 
Syllabus— Verdict.  [269  Pa. 

2.  One  who  contracts  with  the  representatives  of  a  municipality, 
especially  with  those  having  the  very  limited  powers  of  a  quasi 
corporation  such  as  a  township,  is  bound  to  know  the  limitations 
of  the  powers  of  those  officials  in  executing  the  contract. 

3.  In  an  action  brought  by  a  water  supply  company  against  a 
township  of  the  second  class  to  recover  for  the  rental  of  water 
hydrants,  installed  under  a  contract  entered  into  between  the  water 
company  and  the  supervisors  of  the  township,  in  pursuance  of  the 
Act  of  May  25,  1907,  P.  L.  231,  providing  that,  upon  the  petition 
of  the  owners  of  a  majority  of  the  lineal  feet  frontage  along  a 
highway,  the  supervisors  may  contract  with  water  companies  for 
the  placing  of  hydrants  along  said  highway,  evidence  to  show  that 
the  petition  fofr  the  installation  of  the  hydrants  was  not  signed 
by  a  majority  of  the  owners  abutting  upon  the  highway  was  er- 
roneously excluded  as  immaterial,  and  the  trial  judge  erred  in 
directing  a  verdict  for  plaintiff. 

4.  In  such  case  the  supervisors  had  no  authority  to  provide  water 
supply  for  fire  protection,  except  upon  the  terms  and  conditions 
set  forth  in  the  statute;  the  plaintiff  was  bound  to  know  and 
recognize  the  limitations  upon  the  powers  of  the  supervisors  and 
could  not  invoke  the  principle  of  estoppel  after  the  work  had  been 
done  so  as  to  charge  the  township  with  liability  therefor,  where  it 
appeared  that  the  township  as  an  organic  unit  received  no  benefit 
from  the  work,  but  certain  individuals  only,  were  benefited. 

5.  It  seems  that,  in  such  case,  if  the  suit  had  been  brought 
against  the  abutting  owners  who  received  the  benefits,  they  would 
be  estopped  from  asserting  the  invalidity  of  the  contract,  it  hav- 
ing been  performed  in  so  far  as  they  were  concerned. 

Mr.  Justice  Frazer  dissents. 

Argued  May  7,  1917.  Appeal,  No.  40,  January  Term, 
1917,  by  defendant,  from  judgment  of  C.  P.  Northum- 
berland Co.,  May  Term,  1913,  No.  499,  on  verdict  for 
plaintiff  in  case  of  Trevorton  Water  Supply  Company 
V.  The  Township  of  Zerbe.  Before  Brown,  C.  J.,  Mbs- 
TBBZAT,  Potter,  Stewart,  Frazer  and  Walling^  JJ. 
Reversed. 

Assumpsit  for  water  furnished  for  fire  protection. 
Before  Cummings,  P.  J. 

The  opinion  of  the  Supreme  Court  states  the  case. 

Verdict  for  plaintiff  for  $1,785.60  and  judgment  there- 
on.   Defendant  appealed. 


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TBBVORTON  W.  S.  CO.  v.  ZERBE  TWP.,  Appellant.  33 
1917.]        Assignment  of  Errors — Opinion  of  the  Court. 

Errors  assigned,  inter  alia,  were  various  portions  of 
the  charge. 

>7.  JET.  M.  Oram  and  Albert  Lloyd,  for  appellant. — 
The  supervisors  of  a  second  class  township  cannot  bind  a 
township  by  a  contract  which  the  law  gives  them  no 
authority  to  enter  into:  Hague  v.  City  of  Philadelphia, 
48  Pa.  527;  Scranton  v.  Jermyn,  156  Pa.  107;  Reilly 
V.  Philadelphia,  60  Pa.  467;  Pittsburgh  v.  Walter,  69 
Pa.  365;  Wimer  v.  Overseers  of  the  Poor  of  Worth 
Township,  104  Pa.  317;  Millerstown  Borough  v.  Fred- 
erick, 114  Pa.  435;  Pilson^s  Trustees  v.  Himes,  5  Pa. 
452;  Rice  v.  Lake  Twp.,  40  Pa.  Superior  Ct.  337;  Gib- 
son V.  Plum  Creek  Poor  District,  122  Pa.  557;  Good 
Boads  Machinery  Co.  v.  Old  Lycoming  Township,  25  Pa. 
Superior  Ct.  156;  Roundsley  v.  Tuscarora  Township 
School  District,  47  Pa.  Superior  Ct.  623. 

A.  O.  Shoener  and  Qeorge  B.  Beimensnyder,  for  ap- 
pellee, cited:  Weitz  v.  Banfield,  226  Pa.  241;  Moore 
V.  Mayor,  Aldermen  &  Commonalty  of  the  City  of  New 
York,  73  N.  Y.  238;  Alexander  v.  Zerbe  Twp.  Poor 
District,  63  Pa.  Superior  Ct.  356 ;  Somerset  Borough  v. 
Sweitzer,  54  Pa.  Superior  Ct.  283;  Allegheny  City  v. 
McClurkan  &  Co.,  14  Pa.  81;  Fidelity  Trust  &  Safe  De- 
posit Co.  V.  West  Penn  &  Shenango  Connecting  R.  R. 
Co.  et  al.,  138  Pa.  494. 

Opinion  by  Mr.  Justicb  Potter,  June  30, 1917 : 
The  Act  of  May  25, 1907,  P.  L.  231,  Section  1,  provides 
*^at  the  road  supervisors  of  any  township  of  the  second 
class  in  this  Commonwealth  are  hereby  authorized  and 
empowered,  on  the  petition  of  the  owners  of  a  majority 
of  the  lineal  feet  frontage  along  any  highway,  or  por- 
tion thereof,  in  any  village  within  said  township,  to  enter 
into  contract  with  water  companies  for  the  placing  of 
fire  hydrants  along  said  highway,  for  the  protection  of 
property  from  fire. 
Vol.  oclix — 3 


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34  TBEVORTON  W.  S.  CO.  v.  ZEBBE  TWP.,  Appellant . 
Opinion  of  the  Court.  [259  Pa. 

"Section  2.  The  supervisors  shall  levy,  for  the  mainte- 
nance of  fire  hydrants  and  the  purchase  of  hose,  et  cet- 
era, an  annual  tax  upon  the  property  abutting  upon 
said  highway,  and  in  the  district  benefited  thereby,  based 
upon  the  assessment  for  county  purposes.  Such  tax 
shall  become  a  lien  against  such  property,  and  shall  be 
collected  in  the  same  manner  as  dther  taxes.  The  col- 
lector to  receive  the  same  commission  as  on  the  road- 
tax." 

In  presumed  compliance  with  the  terms  of  this  act,  a 
petition  was  presented  to  the  supervisors  of  Zerbe  Town- 
ship, Northumberland  County,  asking  them  to  enter  into 
a  contract  for  the  supply  of  water  for  fire  protection  to 
properties  along  three  streets  in  the  village  of  Trevor- 
ton,  on  condition  that  "this  petition  shall  first  bear  the 
signatures  of  the  owners  of  a  majority  of  the  lineal  feet 
frontage  along  every  highway  herein  mentioned,  as  is 
required  by  law,''  and  with  the  further  stipulation  that 
"in  the  event  that  this  petition  shall  bear  the  signatures 
of  the  owners  of  a  majority  of  the  lineal  feet  frontage 
along  each  and  every  highway  or  street  herein  men- 
tioned," a  tax  shall  be  levied  as  provided  in  the  act, 
otherwise  the  petition  shall  be  treated  as  void.  Pur- 
suant to  the  prayer  of  this  petition  the  supervisors  en- 
tered into  a  contract  with  plaintiff  water  company  for 
the  installation  of  hydrants,  to  recover  for  the  rental  of 
which  this  action  was  brought.  The  defense  set  up  was 
that  the  petition  was  not  signed  by  the  majority  of  abut- 
ting owners  as  required  by  the  act  of  assembly. 

There  was  nothing  in  the  petition  to  indicate  that  it 
was  signed  by  a  majority  of  owners  abutting  upon  the 
highways  in  question,  and,  when  the  contract  on  which 
suit  was  brought  was  offered  in  evidence,  objection  to  it 
was  madt  for  that  reason.  The  objection  was  overruled, 
and  subsequently  evidence  was  offered  by  defendant  and 
admitted  by  the  court,  which  tended  to  show  that  the 
majority  of  abutting  owners  did  not  in  fact  sign  the 
petition.    The  trial  judge  held,  nevertheless,  that  the 


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TBEVORTON  W.  S.  CO.  v.  ZERBE  TWP.,  Appellant.  35 
1917.]  Opinion  of  the  Court. 

question  of  the  sufficiency  of  the  petition  was  immate- 
rial, and  affirmed  a  point  that  plaintiff  was  entitled  to 
recoTer  if  it  had  complied  with  the  terms  of  its  contract, 
and  that  the  township  could  not  set  up  the  defense  of 
ultra  vires.  The  result  of  the  trial  was  a  verdict  for  the 
plaintiff,  and,  from  the  judgment  entered  thereon,  de- 
fendant has  appealed. 

It  should  be  remembered  that  townships  are  not  prop- 
erly to  be  regarded  as  municipal  corporations,  nor  do 
they  possess  the  implied  powers  of  such  corporations. 
They  are  involuntary  quasi  corporations,  standing 
low  in  the  scale  of  corporate  existence,  and  they  can 
exercise  only  such  powers  as  are  expressly  conferred 
upon  them  by  statute.  See  the  opinions  in  Dempster  v. 
United  Traction  Co.,  205  Pa.  70,  and  Haverford  Town- 
ship V.  Wilfong,  60  Pa.  Superior  Ct.  214,  applying  this 
principle  to  townships  of  the  first  class.  In  the  present 
case  the  statute  gave  no  power  to  the  township  to  con- 
tract in  its  own  name,  and  for  the  benefit  of  the  town- 
ship as  a  whole,  for  a  supply  of  water  for  fire  protection. 
It  merely  authorized  the  supervisors,  upon  the  petition 
of  the  owners  of  a  majority  of  the  lineal  feet  of  frontage 
along  a  highway,  to  enter  into  a  contract  for  water  sup- 
ply for  the  protection  of  the  abutting  property,  and  it 
provided  that  the  cost  of  such  protection  should  be  paid 
by  a  tax  upon  the  property  thus  benefited.  The  town- 
ship as  a  whole  had  nothing  to  do  with  the  transaction, 
and  received  no  benefit  therefrom.  The  supervisors  were 
by  the  statute  made  merely  the  representatives  of  the 
abutting  property  owners,  and  the  latter  were  the  parties 
who  received  the  benefit.  If,  as  appears  to  be  the  case,  the 
I)etition  was  invalid  because  it  was  not  signed  by  a  major- 
ity ot  the  abutting  property  owners,  so  that  no  tax  could 
be  legally  levied  ui)on  the  abutting  property,  and,  if  this 
suit  had  been  brought  against  the  abutting  owners  who 
received  the  benefits,  it  may  very  well  be  that  they  would 
be  stopped  from  asserting  the  invalidity  of  the  con- 


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36  TBEVORTON  W.  S.  CO.  v.  ZEBBE  TWP.,  Appellant. 
Opinion  of  the  Court.  [259  Pa. 

tract,  it  having  been  performed  in  so  far  as  they  were  con- 
cerned. But  this  principle  of  estoppel  cannot  justly 
be  applied  against  the  township  as  a  whole,  which  had 
no  authority  to  make  such  a  contract,  and  which  re- 
ceived no  benefits  or  advantages  under  it. 

The  supervisors  had  no  authority  to  act  of  their  own 
will,  nor  on  request  of  any  person  or  persons  except  the 
majority  of  abutting  owners.  A  similar  question  was 
raised  in  Reilly  v.  Philadelphia,  60  Pa.  467.  There  an 
ordinance  authorized  a  contract  for  paving  to  be  let  on 
condition  that  the  contractor  should  be  chosen  by  a  ma- 
jority of  abutting  owners  the  cost  of  the  work  to  be  borne 
by  the  abutting  owners.  It  was  said  by  Mr.  Justice  Wil- 
liams (p.  469) :  "It  is  clear  that,  under  the  provisions 
of  the  ordinance  authorizing  the  paving  of  Cumberland 
street,  the  equitable  plaintifif  had  no  authority  to  pave 
the  street  unless  a  majority  of  the  lot  owners,  represent- 
ing at  least  one-half  of  the  feet  front  to  be  paved,  se- 
lected him,  and  the  department  of  highways  contracted 
with  him  to  do  the  work.  His  selection  by  a  majority 
of  the  lot  owners  and  his  employment  by  the  department 
of  highways  were  essential  requisites  in  order  to  give 
him  authority  to  do  the  work,  and  the  right  to  collect 
the  cost  thereof  from  the  owners  of  property  in  front  of 
whose  premises  it  was  done.  If  he  was  not  selected  by 
the  lot  owners,  and  if  he  did  not  contract  with  the  de- 
partment of  highways  to  do  the  paving,  he  was  a  mere 
volunteer,  and  is  not  entitled  to  recover  from  the  city 

or  the  lot  holders  the  cost  of  the  paving The  de 

partment  had  no  authority  to  enter  into  a  contract  with 
him  unless  he  was  selected  by  a  majority  of  the  lot  own- 
ers ;  and  he  had  constructive,  if  not  actual,  notice  of  this 
on  the  face  of  the  resolution  authorizing  the  paving  of 
the  street,  and  the  making  of  a  contract  for  the  execution 
of  the  work." 

In  the  present  case,  the  supervisors  had  no  authority 
to  provide  water  supply  for  fire  protection,  except  on  the 
terms  and  conditions  set  forth  in  the  statute.    The  au- 


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TREVORTON  W.  S.  CO.  v.  ZERBE  TWP.,  Appellant.  37 
1917.]  Opinion  of  the  Court. 

thopity  therein  conferred  permitted  them  to  bind  only 
the  property  of  abutting  owners  with  the  cost  of  the 
improvement,  and  no  authority  whatever  was  given 
them  to  saddle  that  cost  upon  the  township  as  a  whole. 
Plaintiff  was  bound  to  know  and  recognize  the  limita- 
tions upon  the  power  of  the  supervisors,  within  the  prin- 
ciple of  the  rule  stated  in  Hague  v.  City  of  Philadelphia, 
48  Pa.  527,  where  it  was  said  (p.  530) :  "We  say  then 
that  these  county  commissioners,  acting  under  an  au- 
thority of  the  most  special  and  limited  kind,  had  no 
power  to  change  the  site,  no  right  to  change  the  plans 
and  specifications,  and  not  a  particle  of  authority  to 
promise  payment  for  extra  work,  or  to  ratify  its  execu- 
tion. It  was  the  folly  of  the  contractor  to  rely  upon 
their  directions  to  proceed  outside  of  his  contract.  He 
knew  the  extent  of  their  powers  defined  in  the  law  and 
referred  to  upon  the  face  of  his  written  contract." 

In  the  case  at  bar  the  trial  judge  deliberately  closed 
his  eyes  to  all  proof  that  the  petition  was  not  signed  by 
the  owners  of  a  majority  of  the  lineal  feet  frontage  along 
the  highways  to  be  protected,  holding  that  this  fact  made 
no  difference,  if  the  plaintiff  company  had  performed  its 
part  of  the  agreement.  In  this  ruling  he  plainly  erred. 
He  invoked  the  principle  of  estoppel  as'  against  the 
wrong  party,  the  township,  it  not  being  the  party  in 
whose  behalf  the  contract  was  made,  and  not  having 
received  any  benefits  therefrom.  Had  there  been  any 
attempt  to  make  such  a  contract  as  this  on  behalf  of 
the  township  as  a  whole,  it  would  have  been  void  for 
want  of  power  upon  the  part  of  the  township  to  enter 
into  any  such  agreement.  As  has  already  been  pointed 
out,  the  authority  given  to  the  supervisors  permitted 
them  to  enter  into  a  contract  only  upon  the  petition  of 
a  majority  of  the  abutting  owners  upon  the  streets  speci- 
fied, and  to  levy  a  tax  upon  the  abutting  property  to 
cover  the  cost  of  the  protection  thus  afforded.  We 
repeat,  the  township  as  such,  as  an  organic  unity,  had 
nothing  whatever  to  do  with  the  transaction,  and  it 


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38  TBEVORTON  W.  S.  CO.  v.  ZERBE  TWP.,  Appellant. 
Opinion  of  the  Court.  [259  Pa. 

would  be  rank  injustice  to  hold  the  township,  as  a  whole, 
liable  under  a  contract  made  by  the  supervisors  for  the 
specific  benefit  of  a  portion  only  of  the  people  living  in 
the  township.  It  would  impose  the  cost  of  fire  protec- 
tion for  those  individuals  upon  the  general  taxpayers 
of  the  township,  without  any  authority  of  law,  and  with- 
out benefit  to  the  township  as  a  whole.  To  make  such 
application  of  the  doctrine  of  estoppel  against  municipal 
organizations,  as  did  the  court  below,  would  be  to  open 
the  door  to  all  manner  of  fraud  upon  the  part  of  public 
officials,  and  would  enable  them  to  bind  municipalities 
by  contracts  made  in  utter  disregard  of  the  requirements 
of  the  law.  It  would  permit  the  rights  and  liabilities  of 
municipalities  to  be  determined  by  the  principle  of  estop- 
pel rather  than  by  the  statutes  passed  for  the  purpose 
by  the  legislature.  Such  a  result  will  be  avoided  by  en- 
forcing the  safe  and  wholesome  rule  that  one  who  con- 
tracts with  the  representatives  of  a  municipality,  espe- 
cially with  those  having  the  very  limited  powers  of  a 
quasi  corporation  such  as  a  township,  is  bound  to  know 
the  limitations  of  the  power  of  those  officials  in  execut- 
ing the  contract. 

The  fourth,  fifth,  sixth,  eighth,  fourteenth,  fifteenth, 
sixteenth,  and  seventeenth  assignments  of  error  are  sus- 
tained, and  the  judgment  is  reversed,  with  a  venire  facias 
de  novo. 

Mr.  Justice  Prazbb  dissents. 


Camp  et  al.,  to  use,  Appellants,  v.  John  et  al. 

Judgments — Presumption  of  payment — Evidence. 

1.  After  the  expiration  of  twenty  years  from  maturity,  judg- 
ments, mortgages  and  all  like  obligations  are  presumed  paid  and  it 
requires  satisfactory  and  convincing  evidence  to  overcome  that 
presumption. 

2.  On  a  sci.  fa.  brought  by  a  use-plaintifF  on  a  judgment  entered 


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CAMP  et  al.,  Appellants,  v.  JOHN  et  al.  39 

1917.]  Syllabus — Opinion  of  the  Court, 

on  an  indemnity  bond  given  by  a  collector  of  taxes  where  it  ap- 
peared that  the  judgment  had  been  entered  more  than  twenty  years 
prior  to  the  issuance  of  the  writ  where  there  was  no  satisfactory 
evidence  to  overcome  the  presumption  of  payment  by  lapse  of 
time,  a  judgment  was  properly  directed  for  the  defendant. 

Submitted  May  7,  1917.  Appeal,  No.  107,  Jan.  T., 
1917,  by  plaintiflfs,  from  judgment  of  C.  P.  Northumber- 
land Co.,  Dee.  T.,  1910,  No.  243,  on  directed  verdict  for 
defendant  in  case  of  David  Camp,  George  Robertson, 
and  Richard  Irvin,  now  for  the  use  of  Nicholas  Dursky 
V.  C.  Elmer  John,  Administrator  of  Estate  of  Hugh  Mc- 
Donald, deceased,  with  notice  to  Ann  McDonald,  John 
McDonald,  Hugh  McDonald,  Mary  Jane  Welsh,  nee 
McDonald,  now  intermarried  with  William  Welsh,  and 
William  Welsh,  her  husband,  James  D.  Dorsey,  minor 
child  of  Annie  Dorsey,  nee  McDonald,  deceased,  late 
intermarried  with  James  Dorsey,  and  James  Dorsey,  her 
husband,  terre-tenants.  Before  Brown,  C.  J.,  Mestrb- 
ZAT,  Stewart,  Frazer  and  Walung,  JJ.    Affirmed. 

Scire  facias  sur  judgment.    Before  Mosbr,  J. 
The  opinion  of  the  Supreme  Court  states  the  case. 
Verdict  for  defendant  by  direction  of  the  court  and 
judgment  thereon.    Plaintiffs  appealed. 

Error  assigned^  inter  alia,  was  in  directing  verdict  for 
the  defendants.  * 

J.  Mai.  Oillespic,  for  appellants. 
W.  H.  M.  Oram,  for  appellees. 

Opinion  by  Mr.  Justice  Walling,  June  30,  1917 : 

Hugh  McDonald  was  collector  of  taxes  for  the  poor 

district  of  Mount  Carmel  Township,  Northumberland 

County,  for  the  years  1885  and  1886 ;  and  as  such  gave 

a  bond  in  f  2,500.00,  with  David  Camp,  George  Robert- 


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40  CAMP  et  al.,  Appellants,  v.  JOHN  et  al. 

Opinion  of  the  Court.  [259  Pa. 

son  and  Bichard  Irvin  as  sureties.  He  made  default  and 
to  indemnify  the  sureties  gave  them  his  pei*sonal  bond^ 
in  like  amount,  on  which  a  cautionary  judgment  was 
entered  June  16, 1888,  in  the  Court  of  Common  Pleas  of 
said  county.  By  reason  of  such  default  judgment  was 
entered  in  said  court  against  the  tax  collector  and  his 
sureties  on  April  15,  1890,  on  the  bond  first  above  men- 
tioned, and  liquidated  in  the  sum  of  f2,115.28.  Mr,  Mc- 
Donald died  November  1,  1890;  and  in  1893  by  virtue 
of  an  execution  issued  on  said  last  named  judgment  two 
pieces  of  land  were  seized  and  sold  by  the  sheriff,  as  be- 
longing to  his  estate.  At  said  sale  the  property  was 
bought  jointly  by  Camp,  Irvin  and  Robertson  at  the 
price  of  flOO.OO,  subject  to  a  mortgage  of  |3,720.00. 
Within  a  very  short  time  the  property  was  resold  for 
16,000.00.  During  the  same  year  (1893)  the  sureties 
paid  said  judgment  to  the  poor  district,  and  in  1897  it 
was  satisfied  of  record,  the  sureties  never  having  taken 
any  steps  to  become  subrogated  to  the  rights  of  the  plain- 
tiff therein. 

In  1895  Mr.  McDonald's  widow  brought  ejectment 
against  the  purchasers  of  the  said  two  pieces  of  land, 
which  suit  was  compromised  by  giving  her  a  verdict  of 
11,900,00.  At  the  time  of  his  death,  Mr.  McDonald  seems 
to  have  been  the  owner  of  two  other  pieces  of  land,  the 
deed  for  which  was  not  placed  upon  record  until  1899, 
and  so  far  as  appears  he  left  no  other  Q^tate. 

On  November  7,  1910,  the  use-plaintiflf,  having  ob- 
tained an  assignment  of  the  judgment  entered  on  the 
indemnity  bond,  issued  thereon  a  writ  of  scire  facias  sur 
judgment  against  the  administrator  of  the  estate  of  Hugh 
McDonald,  deceased,  with  notice  to  his  widow  and  heirs 
as  terre-tenants.  In  defense  it  was  set  up,  inter  alia, 
tiiat  the  presumption  of  payment  had  arisen  because  of 
lapse  of  time.  The  only  evidence  submitted  at  the  trial 
materially  tending  to  rebut  the  presumption  of  payment 
was  that  of  one  of  the  two  executors  of  the  Robertson 
estate,  to  the  eflfect  that  the  one-third  part  of  the  judg- 


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CAMP  ct  al.,  Appellants,  v.  JOHN  et  al.  41 

1917.]  Opinion  of  the  Court, 

ment  paid  by  that  estate  to  the  poor  district  had  never 
been  repaid  to  him  or  to  his  knowledge.  There  was  noth- 
ing to  show  that  the  judgment  on  which  this  writ  was 
issued  had  not  been  paid  to  Camp  or  Irvin  or  to  the 
other  executor  of  the  Robertson  estate. 

This  appeal  is  from  the  action  of  the  trial  court  in 
directing  a  verdict  and  judgment  for  the  defendants, 
which  action  was  based  largely  on  the  ground  that  the 
evidence  was  not  sufficient  to  rebut  the  presumption  of 
payment  arising  from  the  lapse  of  time ;  wherein  we  find 
no  error.  After  the  expiration  of  twenty  years  from  ma- 
turity, judgments,  mortgages  and  all  like  obligations  are 
presumed  paid;  and  it  requires  satisfactory  and  con- 
vincing evidence  to  overcome  that  presumption :  Gregory 
V.  Commonwealth,  121  Pa.  611;  Fidelity  Title  &  Trust 
Company  v.  Chapman,  226  Pa.  312 ;  Miller  v.  Overseers 
of  the  Poor  of  the  City  of  Williamsport,  17  Pa.  Superior 
Ct.  159.  Whether  the  facts  relied  upon  to  rebut  such 
presumption  are  true  is  for  the  jury,  but  whether  if  true 
they  are  sufficient  is  for  the  court :  Beale's  Executors  v. 
Kirk's  Administrator,  84  Pa.  415;  Peter's  App.,  106  Pa. 
340;  Porter  v.  Nelson,  121  Pa.  628.  Here  the  caution- 
ary judgment  was  entered  in  1888,  and  the  liability  of 
the  sureties  became  fixed  by  the  entry  of  judgment 
against  them  on  the  collector's  bond,  April  15,  1890, 
and  the  twenty-year  period  is  properly  computed 
from  that  date,  and  was  therefore  complete  on  April 
15,  1910,  over  six  months  before  the  writ  in  this 
case  was  issued,  and  the  presumption  arising  thereon  is 
alone  sufficient  to  defeat  plaintiff's  claim :  Hummel  v. 
Lilly,  188  Pa.  463.  A  judgment  for  a  contingent  liability 
is  sustained  by  the  same  presumptions  as  other  judg- 
ments :  Black  on  Judgments,  Section  72.  It  is  not  nec- 
essary that  the  original  judgment  be  opened  in  order  to 
interpose  the  defense  of  presumption  of  payment  arising 
from  lapse  of  time. 

As  a  general  rule  where  the  property  of  the  debtor  is 
sold  at  sheriff's  sale  he  is  not  entitled  to  the  profits  re- 


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42  CAMP  et  al.,  AppeUants,  v.  JOHN  et  aL 

Opinion  of  the  Court.  [259  Pa. 

suiting  from  a  resale,  but  here  the  fact  thai  the  property 
was  bought  by  the  sureties  for  a  nominal  consideration 
and  almost  immediately  resold  for  a  very  large  sum 
might  seem  to  suggest  that  it  was  done  by  arrangement 
to  protect  the  sureties  and  also  the  McDonald  estate, 
especially  in  view  of  the  fact  that  they  made  no  appli- 
cation to  be  subrogated  in  the  other  judgment.  How- 
ever, we  do  not  regard  that  matter  as  essential  to  a  de- 
cision of  the  case. 

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


.    Vocca,  Appellant,  v.  Pennsylvania  Bailroad 
Company. 

Negligence — Auiomohiles — Railroads  —  Contributory  negligence 
— Quest — Testing  danger. 

1.  It  cannot  be  said  as  a  matter  of  law  that  a  guest  or  passenger 
in  a  vehicle  is  guilty  of  negligence  because  he  has  done  nothing. 
In  many  such  cases  the  right  degree  of  caution  may  consist  of 
inaction.  In  situations  of  great  and  sudden  peril,  meddlesome 
interference  with  those  having  control,  either  by  physical  act  or  by 
disturbing  suggestions  and  needless  warnings,  may  be  exceedingly 
disastrous  in  results. 

2.  In  an  action  to  recover  damages  for  personal  injuries  sus- 
tained by  the  plaintiff  in  a  collision  between  plaintiff's  automobile 
and  a  railroad  train,  it  appeared  that  plaintiff,  a  clergyman,  was 
riding  in  the  automobile  as  a  guest  of  one  of  his  parishioners  who 
had  sent  the  automobile  for  him.  The  automobile  was  driven  by 
the  chauffeur  of  the  parishioner.  The  collision  was  the  result  of 
joint  negligence  in  the  operation  of  the  train  and  the  automobile. 
Both  the  plaintiff  and  the  chauffeur  were  familiar  with  the  streets 
over  which  they  were  to  pass  and  both  knew  of  the  railroad  cross- 
ing where  the  accident  occurred.  There  was  evidence  that  plain- 
tiff when  about  100  feet  from  the  railroad  track  heard  a  noise  which 
seemed  to  him  the  noise  of  an  approaching  train ;  that  the  driver 
was  then  going  about  fifteen  or  twenty  miles  an  hour ;  that  plain- 
tiff called  to  him  to  stop — which  call  the  driver  said  he  did  not 
hear — and  the  next  thing  plaintiff  knew  the  automobile  was  in 


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VOCCA,  Appellant,  v.  PENNA.  R.  R.  CO.  43 

1917.]  Syllabus — Opinion  of  the  Court, 

collision  with  the  car.    The  lower  court  entered  a  compulsory  non- 
suit.   Held,  error,  and  that  the  case  was  properly  for  the  jury. 

Argued  May  7,  1917.  Appeal,  No.  140,  Jan.  T.,  1917, 
by  plaintiff,  from  order  of  C.  P.  Fayette  County,  Dec. 
T.,  1914,  No.  557,  refusing  motion  to  strike  off  compul- 
sory nonsuit  in  case  of  James  A.  Vocca  v.  Pennsylvania 
Railroad  Company,  a  corporation.  Before  Brown,  C.  J., 
Mestrezat,  Stewart,  Frazer  and  Walung,  JJ.  Ee- 
versed. 

Trespass  to  recover  damages  for  personal  injury. 

The  facts  appear  in  the  opinion  of  the  Supreme  Court. 
Before  Reppbrt,  J. 

The  court  entered  a  compulsory  nonsuit  which  it  sub- 
sequently refused  to  take  ofif.    Plaintiff  appealed. 

Error  assigned  was  in  refusing  to  take  off  the  nonsuit. 

H.  8.  Dumbauldy  for  appellant. — The  negligence  of  the 
driver  could  not  be  imputed  to  the  passenger :  Carlisle 
Borough  V.  Brisbane,  113  Pa.  544;  Senft  v.  Western 
Maryland  Ry.  Co.,  246  Pa.  446;  Shultz  v.  Old  Colony  St. 
Ry.  Co.,  193  Mass.  309  (79  N.  E.  873) ;  Chadbourne  v. 
Springfield  St.  Ry.  Co.,  199  Mass.  574  (85  N.  E.  Repr. 
737) ;  Carr  v.  City  of  Easton,  142  Pa.  139;  Wachsmith 
V.  Baltimore  &  Ohio  R.  R.  Co.,  233  Pa.  465 ;  McLaughlin 
V.  Pittsburgh  Rys.  Co.,  252  Pa.  32. 

R.  TF.  Play  ford,  for  appellee,  cited :  Crescent  Twp.  v. 
Anderson,  114  Pa.  643;  Dean  v.  Penna.  R.  R.  Co.,  129 
Pa.  514;  Dunlap  v.  Philadelphia  Rapid  Transit  Co.,  248 
Pa.  130. 

Opinion  by  Mr.  Justice  Stewart,  June  30, 1917: 
The  plaintiflf,  a  clergyman,  was  advised  over  the  'phone 
of  the  severe  illness  of  a  parishioner,  and  that  his  pas- 
toral services  without  delay  were  requested.    He  was  ad- 


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44  VOCCA,  Appellant,  v.  PENNA.  R.  R.  CO. 

Opinion  of  the  Court.  [259  Pa. 

vised  at  the  same  time  that  an  automobile  would  be  sent 
to  bring  him  to  the  appointed  place.  Very  promptly  the 
automobile — the  property  of  the  married  daughter  of  the 
invalid  with  whom  the  latter  was  mailing  her  home — ar- 
rived in  charge  of  the  daughter's  chauffeur,  an  exi)eri- 
enced  driver.  The  clergyman  and  the  driver  were  the 
sole  occupants  of  the  car  when  it  started  on  its  return, 
the  clergyman  sitting  in  the  seat  to  the  rear.  Both  were 
familiar  with  the  streets  over  which  they  were  to  pass, 
and  both  knew  of  a  railroad  crossing  that  they  would 
encounter  on  their  way.  The  surroundings  of  this  cross- 
ing gave  little  opportunity  to  see  an  approaching  train 
on  the  railroad.  On  this  occasion  a  train  approached 
the  crossing  without  having  given  any  signal,  and  at  the 
same  time  the  chauffeur  approached  it  with  his  car  with- 
out stopping,  looking  or  listening,  with  the  result  that  a 
collision  occurred  in  which  the  automobile  was  wrecked 
totally,  and  the  clergyman  received  more  or  less  injury, 
while  the  driver  escaped  unhurt.  The  plaintiff  brought 
the  present  action  to  recover  compensation  for  his  in- 
juries. The  court  below  directed  a  nonsuit  on  the 
ground  that  his  own  negligence  had  contributed  to  the 
accident 

In  bis  opinion  filed  the  learned  trial  judge  says :  ^^The 
chauffeur  was  admittedly  negligent.  The  plaintiff,  in  the 
face  of  a  danger  which  was  not  only  known  to  him,  but 
of  which  he  was  then  apprehensive,  voluntarily  com- 
mitted himself  and  his  safety  to  the  driver  of  the  car, 
and,  as  was  said  in  Dean  v.  Pennsylvania  R.  R.  Co.,  129 
Pa.  514,  he  joined  the  driver  in  testing  the  danger,  and 
he  is  responsible  for  his  own  act.^^  A  verdict  to  this  same 
effect  would  not  have  called  for  the  court's  interference. 
As  much  could  be  said  of  a  verdict  to  the  contrary.  This 
is  but  another  way  of  saying  that  the  facts  were  for  the 
jury  and  not  for  the  court.  The  plaintiff  was  a  guest  in 
the  automobile  in  which  he  was  riding  when  the  accident 
occurred ;  he  was  no  more  in  control  of  the  car  than  he 
would  have  been  of  the  owner's  house  had  he  been  a  guest 


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VOCCA,  Appellant,  v.  PENNA.  B.  B.  CO.  45 

1917.]  -  Opinion  of  the  Court 

therein.  He  was  where  he  was  by  invitation  of  the 
owner.  Whatever  the  negligence  of  the  driver,  the  own- 
er's servant,  it  could  not  be  imputed  to  the  plaintiff,  ex- 
cept as  some  express  sanction  by  him  of  the  driver's 
negligence  appears,  or  circumstances  showing  clearly 
that  plaintiff  was  in  position  to  see  and  know  the  danger 
himself  and  made  no  effort  to  protect  himself.  CJertainly 
no  express  sanction  by  the  plaintiff  of  the  driver's  negli- 
gence can  be  derived  from  the  evidence,  and  the  case  is 
reduced  to  the  single  question  whether,  under  all  the 
circumstances  as  presented  in  the  evidence,  the  plaintiff 
made  reasonable  effort  to  protect  himself. 

A  very  well  considered  case  which  bears  directly  upon 
the  point,  and  which  we  may  here  cite  approvingly,  is 
Hermann  v.  Rhode  Island  Co.,  36  R.  I.  447.  We  quote 
therefrom  as  follows  (p.  450) :  "It  cannot  be  said  as  a 
matter  of  law  that  such  a  guest  or  passenger  is  guilty  of 
negligence  because  he  has  done  nothing.  In  many  such 
cases  the  right  degree  of  caution  may  consist  of  inaction. 
In  situations  of  great  and  sudden  peril,  meddlesome  in- 
terference with  those  having  control,  either  by  physical 
act  or  by  disturbing  suggestions  and  needless  warnings, 
may  be  exceedingly  disastrous  in  results.  While  it  is 
the  duty  of  such  guest  or  passenger  not  to  submit  himself 
and  his  safety  solely  to  the  prudence  of  the  driver  of  the 
vehicle,  and  that  he  must  himself  use  reasonable  care 
for  his  own  safety,  nevertheless  he  should  not  in  any 
case  be  held  guilty  of  contributory  negligence  merely  be- 
cause he  has  done  nothing.  If  there  be  threatened 
danger  which  is  known  to  the  passenger  and  unobserved 
by  the  driver,  the  passenger  would  be  guilty  of  negligence 
if  he  failed  to  notify  and  warn  the  driver;  also,  if  the 
driver  be  careless  or  reckless  in  his  conduct  and  this  is 
known  to  the  passenger,  and  there  be  reasonable  oppor- 
tunity to  do  so,  it  would  be  the  passenger's  duty  to  cau- 
tion the  driver  and  remonstrate  with  him,  and  if  the  lat- 
ter persisted  in  his  improper  conduct,  to  leave  the  ve- 


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46  VOCCA,  Appellant,  v.  PENNA.  R.  R.  CO. 

Opinion  of  the  Court.  [259  Pa. 

hide;    but .  manifestly  that  would  not  be  possible  nor 
could  it  be  required  in  every  case." 

All  we  have  before  us  in  the  present  case,  in  addition 
to  what  we  have  referred,  is  that  plaintiff,  when  about 
100  feet  from  the  railroad  track,  heard  a  noise  which 
seemed  to  him  the  noise  of  an  approaching  train ;  that 
the  driver  was  then  going  about  15  or  20  miles  an  hour; 
that  he  called  to  him  to  stop — which  call  the  driver  says 
he  did  not  hear — and  the  next  thing  he  knew  the  auto- 
mobile was  in  collision  with  the  car.  It  may  be  a  close 
case  on  its  facts,  but  in  the  absence  of  any  fixed  l^al 
standard  of  duty,  it  is,  we  think,  for  the  jury  to  say 
whether  under  the  facts  the  plaintiff  was  chargeable  with 
negligence  in  failing  to  do  something  that  a  reasonably 
prudent  and  cautious  man  would  have  done  in  order  to 
avoid  the  injury.  At  the  conclusion  of  plaintiff's  case, 
the  court  directed  a  nonsuit  which  it  subsequently  de- 
clined to  remove.  In  this  we  think  was  error.  The  case 
was  for  the  jury.  The  assignment  of  error  is  sustained 
and  the  judgment  is  reversed  with  a  procedendo. 


Springer's  Estate. 

Decedents*  estates — Executors  and  administrators — WHls — Joint 
wUl — Surcharge — Failure  to  file  account — Commissions. 

Three  unmarried  and  childless  sisters  made  a  ^vill  providing  in 
part  as  follows :  **We  hereby  order  and  direct  that  at  the  death  of 
the  one  of  us  who  shall  first  depart  this  life,  all  the  property  of 
every  kind  whatsoever  of  which  she  shall  die  seized,  or  to  which 
she  shall  be  entitled  at  the  time  of  her  decease,  real,  personal  or 
mixed,  and  whether  owned  by  her  individually  or  jointly  or  as 
tenant  in  common  with  the  other  two  of  us,  shall  pass  to  and  be- 
come vested  absolutely  in  the  survivors  of  us,  and  the  two  survivors 
shall  pay  all  her  just  debts  and  funeral  expenses.  At  the  decease 
of  the  one  who  shall  next  depart  this  life,  all  her  estate  of  every 
kind  whatsoever  of  which  she  shall  die  seized,  or  to  which  she  shall 
be  entitled  at  the  time  of  her  decease,  whether  owned  by  her,  in- 
dividually, or  jointly,  or  as  tenant  in  common  with  the  other  sur- 


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SPRINGER'S  ESTATE.  47 

1917.]  Syllabus — ^Assignment  of  Errors, 

vivor,  and  including  what  she  shall  acquire  under  this  will  as  her 
share  of  the  estate  of  the  one  of  us  who  first  died,  shall  pass  to  and 
become  vested,  absolutely,  in  the  last  survivor,  and  the  last  sur- 
vivor shall  pay  all  debts  and  funeral  expenses  then  unpaid  of  the 
two  who  have  previously  died.  We  further  order  and  direct  that 
this  will  shall  not  be  probated,  unless  necessary  to  determine  the 
title  of  property  herein  disposed  of,  nor  shall  any  appraisement, 
whatever,  except  for  collateral  inheritance  tax,  be  made  of  any  or 
either  of  our  estates,  until  after  the  decease  of  the  last  survivor  of 
the  three  of  us,  but  that  all  our  respective  estates  shall  pass  to  and 
become  vested  in  the  survivors  in  kind  as  they  shall  be  at  the  time 
of  our  respective  deaths."  After  the  death  of  the  last  surviving 
sister  the  executor  under  the  will  filed  an  account  for  her  estate. 
Certain  of  the  residuary  legatees  filed  exceptions  asking  that  the 
executor  be  surcharged  for  failure  to  convert  assets  and  securities 
belonging  to  the  estates  of  the  two  sisters  who  first  died  and  to  ac- 
count for  the  same,  that  he  be  surcharged  for  failure  to  include 
certain  notes  belonging  to  the  said  estates,  and  that  the  executor's 
commissions  be  disallowed.  The  Orphans'  Court  refused  to  sur- 
charge the  executor  and  allowed  the  commissions.    Held,  no  error. 

Argued  May  7, 1917.  Appeal,  No.  141,  Jan.  T.,  1917, 
by  George  S.  Rizer,  Benjamin  H.  Rizer,  Albert  A.  Rizer, 
Mary  F.  Rizer  and  Florence  M.  Kunst,  by  G.  H.  A. 
Konst,  their  attorney  in  fact,  from  order  of  O.  C.  Fayette 
Co.,  June  Court,  1916,  No.  53,  dismissing  exceptions  to 
adjudication  in  Estate  of  Elizabeth  B.  Springer,  de- 
ceased. Before  Brown,  C.  J.,  Mestrezat^  Stbwaet, 
Frazer  and  Walling,  J  J.   Affirmed. 

Exceptions  to  adjudication.    Before  Work,  P.  J. 
The  opinion  of  the  Supreme  Court  states  the  case. 
The  court  dismissed  the  exceptions  to  the  adjudica- 
tion.   Gteorge  S.  Rizer  et  al.  appealed. 

Errors  assigned,  inter  alia,  were  in  dismissing  the 
exceptions,  the  refusal  of  the  court  to  surcharge  the 
executor  for  failure  to  make  annual  statements,  for  fail- 
ure to  charge  himself  with  interest,  for  failure  to  charge 
himself  with  promissory  notes  given  by  J.  V.  Thompson 
and  not  collected,  and  in  allowing  executor  commissions. 


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•48  SPRINGER'S  ESTATE. 

Opinion  of  the  Court.  [259  Pa. 

John  L.  Hechmer,  of  the  West  Virginia  Bar,  with  him 
H.  8,  Dumbauld,  for  appellants. 

A.  E.  Jones,  with  him  D.  W.  Henderson,  for  appellee. 

Pbb  Curiam,  Jnne  30, 1917 : 

Mary  Ann  Springer,  Elizabeth  B.  Springer  and  Sarah 
J.  Springer  were  unmarried  and  childless  sisters,  who, 
in  April,  1900,  made  a  will,  the  material  portion  ot  which 
on  this  appeal  is  as  follows :  "We,  Mary  Ann  Springer, 
Elizabeth  B.  Springer  and  Sarah  J.  Springer,  sisters,  all 
of  North  Union  Township,  Fayette  County,  Pennsyl- 
vania, do  hereby  make  and  publish  this  our  and  each  of 
our  last  will  and  testament,  as  follows :  We  hereby  order 
and  direct  that  at  the  death  of  the  one  of  us  who  shall 
first  depart  this  life,  all  the  property  of  every  kind  what- 
soever of  which  she  shall  die  seized,  or  to  which  she  shall 
be  entitled  at  the  time  of  her  decease,  real,  perscmal  or 
mixed,  and  whether  owned  by  her  individually  or  jointly 
or  as  tenant  in  common  with  the  other  two  of  us,  shall 
pass  to  and  become  vested  absolutely  in  the  survivors  of 
us,  and  the  two  survivors  shall  pay  all  her  just  debts  and 
funeral  expenses.  At  the  decease  of  the  one  who  shall 
next  depart  this  life,  all  her  estate  of  every  kind  whatso- 
ever of  which  she  shall  die  seized,  or  to  which  she  shall 
be  entitled  at  the  time  of  her  decease,  whether  owned  by 
her,  individually,  or  jointly,  or  as  tenant  in  common  with 
the  other  survivor,  and  including  what  she  shall  acquire 
under  this  will  as  her  share  of  the  estate  of  the  one  of  us 
who  first  died,  shall  pass  to  and  become  vested,  abso- 
lutely, in  the  last  survivor,  and  the  last  survivor  shall 
pay  all  debts  and  funeral  expenses  then  unpaid  of  the 
two  who  have  previously  died.  We  further  order  and 
direct  that  this  will  shall  not  be  probated,  unless  neces- 
sary to  determine  the  title  of  property  herein  disposed  of, 
nor  shall  any  appraisement,  whatever,  except  for  collat- 
eral inheritance  tax,  be  made  of  any  or  either  of  our  es- 
tates, until  after  the. decease  of  the  last  survivor  of  the 


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SPRINGER'S  ESTATE.  49 

1917.]  Opinion  of  the  Court. 

three  of  us,  but  that  all  our  re8i>ectiye  estates  shall  pass 
to  and  become  vested  in  the  survivors  in  kind  as  they 
shall  be  at  the  time  of  our  respective  deaths.  At  the  de- 
cease of  the  last  survivor  of  the  three  of  us,  we  dispose  of 
all  our  property,  real,  personal  or  mixed  which  shall  then 
remain  as  follows :  We  direct  our  executor  hereinafter 
named,  as  soon  as  he  deems  it  advisable  so  to  do,  to  sell 
all  our  i)ersonal  estate  at  public  sale,  and  our  real  estate, 
except  as  hereinafter  provided,  at  either  public  or  pri- 
vate sale,  as  he  may  deem  best,  and  to  distribute  the  pro- 
ceeds thereof  as  follows" : 

Mary  died  December  19,  1906;  Sarah,  October  3, 
1907,  and  Elizabeth,  June  28,  1913.  Upon  the  death  of 
each  of  these  sisters  their  will  was  admitted  to  probate 
and  letters  testamentary  issued  to  D.  M.  Hertzog,  the 
appellee,  as  executor.  This  appeal  is  from  the  refusal 
of  the  court  below  to  surcharge  him  and  to  the  allow- 
ance of  commissions. 

In  asking  that  the  appellee  be  surcharged  for  his  fail- 
ure to  convert  the  assets  and  securities  belonging  to  the 
estates  of  the  two  sisters  who  first  died,  and  to  account 
for  the  same,  the  appellants  overlook  the  provisions  in 
the  will  by  which  each  sister  gave  to  the  survivors  "in 
kind"  all  of  the  property  of  every  kind  whatsoever  of 
which  she  died  seized,  or  to  which  she  was  entitled  at 
the  time  of  her  decease,  real,  personal  or  mixed,  and 
whether  owned  by  her  individually  or  jointly,  or  as 
tenant  in  common  with  the  other  two,  to  become  vested 
absolutely  in  the  survivors ;  and  this  was  followed  by  a 
direction  to  the  executor  that  no  "appraisement,  what- 
ever, except  for  collateral  inheritance  tax,"  should  be 
made  of  the  estates  of  the  two  who  died  first.  The  es- 
tates of  Mary  and  Sarah,  who  died  first,  are  not  in- 
volved in  the  settlement  of  Elizabeth's  estate,  it  not  ap- 
pearing that  anything  to  which  she  was  entitled  out 
of «tte  estate  of  her  two  sisters  had  been  withheld  from 
her  by  the  appellee.  The  will  clearly  contemplated  the 
settlement  of  but  one  estate,  and  the  appellee  has  in- 
VoL.  ccax — i 


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50  SPEINGBB'S  ESTATE. 

Opinion  of  the  Court  [259  Pa. 

eluded  in  the  settlement  of  that  estate — Elizabeth's,  who 
was  the  "last  survivor" — all  that  she  had  acquired  from 
any  source.  In  the  settlement  of  her  estate  has  he  done 
anything,  or  omitted  to  do  anything,  he  ought  to  have 
done,  which  makes  him  liable  to  surcharge  or  calls  for 
a  forfeit  of  his  commissions? 

After  a  review  of  all  the  evidence  in  the  case  we  con- 
cur in  the  conclusion  of  the  learned  court  below,  that 
the  appellee,  as  executor,  exercised  common  skill,  com- 
mon prudence  and  common  caution  in  the  settlement  of 
Elizabeth's  estate,  and  approve  the  following  from  the 
opinion  dismissing  the  exceptions  to  his  account:  "At 
the  audit  twelve  witnesses,  nine  of  whom  were  leading 
members  of  the  bar,  testified  that  Mr.  Thompson's  repu- 
tation financially  as  a  safe  person  and  one  in  whom 
trust  and  confidence  could  be  reposed  up  until  the  time 
of  his  failure  was  very  good ;  that  he  was  trusted  gen- 
erally by  the  people;  that  his  financial  standing  was 
not  questioned  until  about  the  time  of  his  failure.  And 
that  the  executor's  reputation  as  a  good,  safe  business 
man  was  very  good,  and  that  his  standing  as  a  member 
of  this  bar  was  very  good.  The  testimony  further  shows 
that  no  suits  were  entered  against  Mr,  Thompson  be- 
fore December,  1914,  and  that  the  executor  handled  the 
estate's  claims  in  the  same  manner  and  with  the  same 
skill  and  judgment  that  he  handled  other  claims  placed 
in  his  hands  for  collection  and  pursued  the  same  gen- 
eral course  that  all  the  other  members  of  this  bar  pur- 
sued. We  think  the  course  pursued  by  the  executor 
would  have  been  approved  by  the  testatrix  had  she  been 
living:  McNair's  App.,  4  Rawle  148."  To  the  foregoing 
it  may  be  properly  added  that  from  the  records  of  this 
court  it  is  manifest  that  any  effort  on  the  part  of  the  ap- 
pellee  to  recover  from  J.  V.  Thompson  would  have  been 
unavailing. 

Under  an  unbroken  line  of  cases  from  Calhoun's  Est, 
6  Watts  185,  down  to  Skeer's  Est.,  236  Pa.  404,  the  de- 
cree of  the  court  below  was  a  proper  one,  and  the  ap- 
peal from  it  is  dismissed  at  the  costs  of  the  appellantei. 


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LEONARD  V.  BALT.  &  OHIO  R.  R.  CO.,  AppeUant.  51 
1917.]  SyUabus. 


Leonard  v.  Baltimore  &  Ohio  Eailroad  Company, 

Appellant. 

Negligence  —  Railroads  —  Ejection  of  passenger  at  dangerous 
place — Damages — Compensatory  and  exemplary  damages  —  Plead- 
ings— Statement  of  claim — Amendment — Departure — Measure  of 
damages — Present  worth — Instructions — Failure  to  request  more 
specific  instructions, 

1.  In  an  action  of  tort,  damages  necessarily  following  as  a  nat- 
ural and  probable  result  of  the  injury  may  be  proved  without 
special  avennent  as  defendant  will  be  presumed  to  be  aware  of  such 
consequences  of  his  conduct,  and  hence  cannot  plead  surprise 
when  proof  of  such  injury  is  made.  Damages  of  a  special  nature 
and  not  the  usual  consequences  of  the  wrong  complained  of,  how- 
ever, must  be  specially  averred  that  defendant  may  be  informed 
of  the  claim  and  given  an  opportunity  to  prepare  his  defense;  but 
where  the  action  is  for  injuries  to  the  person  the  jury  may  con- 
sider, without  special  averment,  pain  and  suffering,  expense  in- 
curred for  medical  treatment  and  loss  of  time  caused  by  inability 
to  work  at  the  usual  occupation  of  the  injured  person,  inasmuch 
as  these  are  the  natural  and  usual  results  of  an  injury. 

2.  In  an  action  to  recover  damages  for  death  of  plaintiff's  hus- 
band due  to  the  alleged  negligence  of  the  employees  of  defend- 
ant railroad  company  in  ejecting  deceased  from  its  car  at  a  danger- 
ous place,  in  consequence  of  which  he  was  killed  by  a  passing  train, 
defendant  complained  of  the  admission  in  evidence  of  matters  tend- 
ing to  show  loss  of  earnings  and  profits  of  deceased  as  a  farmer  as 
a  basis  for  compensatory  damages,  where  plaintiff's  statement 
claimed  exemplary  and  punitive  damages  only.  The  statement  first 
contained  an  averment  that  plaintiff  claimed  damages  "in  the  sum 
of  twenty-five  thousand  dollars  ($25,000)  and  in  addition  to  the 
above  sum  claims  punitive  damages  from  said  defendant  company, 
upon  a  cause  of  action  whereof  the  following  is  a  statement."  Suc- 
ceeding paragraphs  set  forth  the  manner  in  which  deceased  met  his 
death,  and  that  his  loss  of  life  was  due  to  defendant's  employees 
'^wilfully,  wantonly,  knowingly  and  unlawfully"  ejecting  him  from 
its  train  at  a  dangerous  place.  Plaintiff  also  averred  deceased's 
occupation  was  that  of  a  farmer  and  that  he  "derived  great  gains 
and  emoluments  from  tilling  the  soil  and  kindred  industries,  a 
large  i)ortion  of  which  went  to  the  maintenance  and  support  of  her 
and  her  family,"  of  which  she  had  been  deprived  through  the  negli- 
gence of  defendant.    Plaintiff  also  claimed  to  recover  for  funeral 


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52  LEONARD  v.  BALT.  &  OHIO  R.  R.  CO.,  AppeUant. 

SyUabus.  [259  Pa. 

expenses,  and  for  the  loss  of  the  companionship  of  her  husband. 
The  concluding  paragraph  stated:  "Wherefore,  and  by  reason  of 
which,  she  claims  damages  in  the  sum  of  twenty-five  thousand  dol- 
lars as  exemplary  damages,  and  in  addition  thereto  she  claims 
punitive  damages  for  the  wilful,  wanton,  reckless,  careless  and  un- 
lawful conduct"  of  defendant's  employees.  Plaintiff  admitted  the 
terms  "exemplary  damages"  and  "punitive  damages"  were  synony- 
mous in  practice,  and  claimed  the  word  "exemplary"  was  inserted 
in  the  statement  by  mistake  for  the  word  "compensatory."  No 
offer  to  amend  in  this  respect  appears  to  have  been  made  but,  in 
dismissing  defendant's  motion  for  a  new  trial,  the  court  below  held 
the  testimony  offered  as  to  loss  of  earnings  was  fully  covered  by 
the  paragraph  of  the  claim  relating  to  the  occupation  of  deceased 
and  that  the  limitation  in  the  concluding  paragraph  did  not  neces- 
sarily prevent  the  introduction  of.  evidence  to  show  compensatory 
damages.  Defendant  did  not  plead  surprise  and  case  was  tried  on 
above  theory.    Held,  no  error. 

3.  The  error  in  the  statement  might  have  been  amended  at  any 
time  since  it  would  not  set  up  a  new  cause  of  action  barred  by  the 
statute  of  limitations.  The  cause  of  action  being  the  wrongful  act 
of  negligence  resulting  in  the  injury  to  the  plaintiff,  an  amendment 
merely  adding  an  additional  item  of  claim  for  damages  issuing  out 
of  the  same  wrongful  act  is  not  a  departure. 

4.  In  such  case,  in  charging  on  the  measure  of  damages  based 
on  the  earnings  of  the  deceased,  the  court  said  that  in  fixing  the 
amount  of  earnings  the  jury  should  consider  the  age,  health,  ability 
and  disposition  to  labor  and  the  habits  of  living  of  deceased  and 
referred  to  the  testimony  touching  the  extent  of  his  farming  occu- 
pation. Held,  that  although  the  instruction  in  this  respect  was 
brief  it  was  not  erroneous  and  in  the  absence  of  a  request  from  de- 
fendant for  further  specific  instructions,  did  not  constitute  reversi- 
ble error. 

5.  In  such  case,  in  instructing  the  jury  on  the  question  of  the 
present  worth  of  future  earnings,  the  court  charged :  "So  far  as  com- 
pensation depends  or  is  estimated  upon  future  earnings  or  accumu- 
lations, such  earnings  or  accumulations  are  to  be  anticipated  and 
capitalized  and  their  present  worth  determined.  That  is,  what  lump 
sum  paid  now  would  be  their  equivalent?"  Held,  that  the  in- 
struction, although  brief,  was  a  correct  statement  of  the  law  and 
that  in  the  absence  of  a  request  for  more  extended  charge,  did  not 
constitute  reversible  error. 

Negligence — Railroads — Evidence — Res  gestcB  —  Conversation — 
Rulings  hy  trial  judge — Questions  considered  on  appeat 

6.  In  negligence  cases  where  the  actual  occurrence  is  confined 
to  a  brief  space  of  time,  the  res  gestae  of  the  transaction  is  accord- 


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LEONARD  V.  BALT.  &  OHIO  R.  R.  CO.,  AppeUant.  53 
1917.]  Syllabus — ^Arguments, 

ingly  limited,  and  the  period  when  declarations  become  merely  a 
narrative  of  a  past  occurrence  ordinarily  begins  immediately  after 
the  accident.  If  the  transaction  is  complete  and  ended,  its  ending 
marks  the  limitation  of  the  res  gest»  of  the  event  and  declarations 
subsequent  thereto  become  merely  narrative  of  past  matters. 

7.  In  an  action  against  a  railroad  company  to  recover  damages 
for  death  of  plaintiff^s  husband  through  alleged  negligence  of  de- 
fendant's employees  in  ejecting  him  from  its  car  at  a  dangerous 
place,  the  admission  of  evidence  over  defendant's  objection  of  a 
conversation  between  the  conductor  of  the  train  and  the  witness 
shortly  after  deceased  had  been  ejected  and  after  the  train  had 
departed  from  the  next  station  after  receiving  and  discharging 
passengers  at  that  stop,  was  reversible  error. 

8.  Where  plaintiff's  evidence  as  to  a  conversation  after  the  ac- 
cident was  objected  to  as  not  being  pertinent  and  plaintiff's  coun- 
sel urged  its  competency  because  of  "its  happening  so  close  to  the 
time"  and  immediately  afterwards  the  trial  judge  overruled  de- 
f»idant's  objection,  it  cannot  be  urged  on  appeal  that  the  question 
of  res  gestiB  was  not  considered  or  ruled  in  the  court  below. 

Argued  May  7,  1917.  Appeal,  No.  143,  Jan.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Fayette  Co.,  Dec. 
T.,  1915,  No.  2963,  on  verdict  for  plaintiflE  in  case  of 
Victoria  Leonard  v.  Baltimore  and  Ohio  Railroad  .Com- 
pany. Before  Brown,  C.  J.,  Mbstrbzat,  Stewart, 
Frazer  and  Walung,  J  J.    Reversed. 

Trespass  to  recover  damages  for  death  of  plaintiflPs 
husband.    Before  Rbppbrt,  J. 

The  opinion  of  the  Supreme  Court  states  the  case. 

Verdict  for  plaintiff  for  f 6,194  and  judgment  there- 
on.   Defendant  appealed. 

Errors  assigned  were  the  admission  of  certain  evi- 
dence, various  portions  of  the  charge  and  failure  to  di- 
rect verdict  for  defendant. 

D.  W.  McDonald,  with  him  James  R.  Cray  and 
Thomas  H.  Hudson,  for  appellant. — The  averments  of 
the  statement  did  not  warrant  the  admission  of  testi- 
mony as  to  compensatory  damages :  Laing  v.  Colder,  8 


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54  LEONARD  v.  BALT.  &  OHIO  R.  R.  CO.,  AppeUant. 

Arguments — Opinion  of  the  Court  [269  Pa. 

Pa.  479;  Kightlinger  v.  Western  Union  Telegraph  Co., 
20  Pa.  C.  C.  630;  Winkleblade  v.  Van  Dyke,  161  Pa.  5. 

Special  instructions  should  have  been  given  as  to  the 
testimony  relating  to  the  earnings  of  decedent:  Good- 
hart  V.  Penna.  R.  R.  Co.,  177  Pa.  1 ;  McLane  v.  Pitts- 
burgh Rys.  Co.,  230  Pa.  29;  Herbert  v.  Rainey,  162  Pa. 
525 ;  Bornscheuer  v.  Consolidated  Traction  Co.,  198  Pa. 
332;  Bates  v.  Carter  Construction  Co.,  255  Pa.  200. 

Instructions  as  to  present  worth  were  wholly  inade- 
quate: McLane  v.  Pittsburgh  Rys.  Co.,  230  Pa.  29; 
Pauza  V.  Lehigh  Valley  Coal  Co.,  231  Pa.  577;  Reitler 
V.  Penna.  R.  R.  Co.,  238  Pa.  1;  Gerber  v.  Philadelphia, 
60  Pa.  Superior  Ct.  119. 

The  conversation  with  the  train  conductor  should 
have  been  excluded :  Briggs  v.  East  Broad  Top  R.  R.  & 
Coal  Co.,  206  Pa.  564;  Ogden  v.  Penna.  R.  R.  Co.,  1 
Monaghan  (Pa.)  249. 

E.  C.  Highee,  of  Sterling,  Highee  &  Matthews,  for 
appellee. — The  statement  is  sufficient  to  sustain  the 
cause,  of  action.  If  there  was  a  defect  in  the  statement, 
it  was  purely  formal  and  was  cured  by  the  verdict: 
Jones  V.  Freyer,  3  W.  N.  C.  365;  Corson  v.  Hunt  & 
Abrahams,  14  Pa.  510;  Pittsburgh  National  Bank  of 
Commerce  v.  Hall,  107  Pa.  583. 

The  charge  of  the  trial  judge  was  not  erroneous,  and 
if  inadequate,  there  should  have  been  a  request  for  fur- 
ther instructions:  Burns  v.  Penna.  R.  R.  Co.,  239  Pa. 
207;  Fortney  v.  Breon,  245  Pa.  47. 

The  conversation  with  the  conductor  was  part  of  the 
res  gestae :  Commonwealth  v.  Werntz,  161  Pa.  591. 

Opinion  by  Mr.  Justice  Frazbe,  June  30, 1917 : 
Defendant  appeals  from  a  judgment  for  plain tiflf  for 
the  death  of  her  husband  due  to  the  alleged  negligence 
of  defendant's  employees  in  ejecting  him  from  its  car 
at  a  dangerous  place,  in  consequence  of  which  he  was 
killed,  by  a  passing  train.    It  being  conceded  the  ques- 


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LEONARD  V.  BALT.  &  OHIO  R.  R.  CO.,  AppeUant  55 
1917.]  Opinion  of  the  Court. 

tion  of  Diligence  was  for  the  jury,  the  assignments  of 
error  are  consequently  confined  to  the  admission  of  evi- 
dence and  charge  of  the  court. 

The  first  assignment  complains  of  the  admission  of 
evidence  of  the  number  of  acres  in  decedent's  farm,  the 
diflPerent  crops  cultivated  and  other  similar  matters 
tending  to  show  loss  of  earnings  and  profits,  as  a  basis 
for  compensatory  damages,  the  objection  to  such  evi- 
dence being  that  plain tiflPs  statement  claimed  exemplary 
and  punitive  damages  only,  and  consequently  defendant 
was  without  notice  or  opportunity  to  meet  and  rebut  the 
evidence  so  given.  The  statement  first  contains  an  aver- 
ment that  plaintiff  claims  damages  ^4n  the  sum  of 
twenty-five  thousand  dollars  (125,000)  and  in  addition 
to  the  above  sum  claims  punitive  damages  from  said  de- 
fendant company,  upon  a  cause  of  action  whereof  the 
following  is  a  statement."  Succeeding  paragraphs  set 
forth  the  manner  in  which  deceased  met  his  death,  and 
that  his  loss  of  life  was  due  to  defendant's  employees 
"wilfully,  wantonly,  knowingly  and  unlawfully"  eject- 
ing him  from  its  train  at  a  dangerous  place.  Plaintiff 
also  avers  deceased's  occupation  was  that  of  a  farmer 
and  that  he  "derived  great  gains  and  emoluments  from 
tilling  the  soil  and  kindred  industries,  a  large  portion 
of  which  went  to  the  maintenance  and  support  of  her 
and  her  family,"  of  which  she  had  b^n  deprived 
through  the  negligence  of  defendant.  Plaintiff  also 
claims  to  recover  for  funeral  exi)enses,  and  for  the  loss 
of  the  companionship  of  her  husband.  The  concluding 
paragraph  states :  ^'Wherief ore,  and  by  reason  of  which, 
she  claims  damages  in  the  sum  of  twenty-five  thousand 
dollars  (125,000)  as  exemplary  damages,  and  in  ad- 
dition thereto  she  claims  punitive  damages  for  the  wil- 
ful, wanton,  reckless,  careless  and  unlawful  conduct"  of 
defendant's  employees.  Plaintiff  admits  the  terms 
"exemplary  damages"  and  "punitive  damages"  are 
synonymous  in  our  practice,  and  claims  the  word  "ex- 
emplary" was  inserted  in  the  statement  by  mistake  for 


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56  LEONARD  v.  BALT.  &  OHIO  R.  R.  CO.,  AppeUant. 

Opinion  of  the  Court.  [259  Pa. 

the  word  "compensatory."  Xo  oflfer  to  amend  in  this 
respect  appears  to  have  been  made,  however,  but,  in 
dismissing  defendant's  motion  for  a  new  trial,  the  court 
below  held  the  testimony  offered  as  to  loss  of  earnings 
was  fully  covered  by  the  paragraph  of  the  claim  relating 
to  the  occupation  of  deceased  and  that  the  limitation  in 
the  concluding  paragraph  did  not  necessarily  prevent 
the  introduction  of  evidence  to  show  compensatory  dam- 
ages. The  opening  paragraph,  as  mentioned  above, 
avers  plaintiff  asks  damages  to  the  extent  of  125,000, 
without  stating  the  nature  or  character  of  the  damages. 
Had  the  language  of  the  concluding  paragraph  omitted 
the  words  "exemplary  damages,"  there  would  be  no  room 
to  deny  a  compensatory  claim. 

In  an  action  of  tort,  damages  necessarily  following  as 
a  natural  and  probable  result  of  the  injury  may  be 
proved  without  special  averments,  as  defendant  will  be 
presumed  to  be  aware  of  such  consequences  of  his  con- 
duct, and  hence  cannot  plead  surprise  when  proof  of 
such  injury  is  made:  Hart  v.  Evans,  8  Pa.  13;  Laing 
V.  Colder,  8  Pa.  479 ;  13  Cyc.  175.  Damages  of  a  special 
nature  and  not  the  usual  consequences  of  the  wrong 
complained  of,  however,  must  be  specially  averred  that 
defendant  may  be  informed  of  the  claim  and  given  an 
opportunity  to  prepare  his  defense :  13  Cyc.  176 ;  Hart 
V.  Evans,  supra ;  Laing  v.  Colder,  supra,  but  where  the 
action  is  for  injuries  to  the  person  the  jury  may  con- 
sider, without  special  averment,  pain  and  suffering,  ^- 
pense  incurred  for  medical  treatment  and  loss  of  time 
for  inability  to  work  at  the  usual  occupation  of  the  in- 
jured person,  inasmuch  as  these  are  the  natural  and 
usual  results  of  an  injury:  Laing  v.  Colder,  supra; 
Penna.  &  Ohio  Canal  Co.  v.  Graham,  63  Pa.  290.  Under 
the  general  averments  in  the  statement  of  claim  showing 
the  occupation  deceased  followed  during  his  lifetime, 
the  evidence  objected  to  was  admissible  without  special 
averment,  and  the  plaintiff  under  such  circumstances 
should  not  be  precluded,  by  an  apparent  clerical  error. 


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LEONARD  V.  BALT.  &  OHIO  R.  R.  CO.,  AppeUant.  57 
1917.]  Opinion  of  the  Court. 

from  recovering  compensation.  The  general  aTerments 
of  the  statement,  exclusive  of  the  last  paragraph,  were 
notice  to  defendant  of  what  it  would  be  called  upon  to 
meet,  and  although  the  defect  was  one  which  might  very 
properly  have  been  amended,  had  not  the  trial  judge 
concluded  the  statement  was  sufficient  as  it  stood,  the 
trial  proceeded  on  the  theory  of  a  claim  for  compensa- 
tory damages,  no  claim  of  surprise  or  motion  for  con- 
tinuance being  made  by  defendant.  Under  the  circum- 
stances we  do  not  deem  the  first  assignment  sufficient  to 
justify  a  reversal.  Plaintiff  might  have  corrected  the 
error  at  any  time  by  amendment,  such  amendments 
having  been  allowed  even  in  the  appellate  court:  Broth- 
ers V.  Mitchell,  157  Pa.  484. 

As  the  case  must  go  back  for  a  new  trial  it  may  be 
proper  to  suggest  that  the  error  in  the  statement  be 
amended.  Such  amendment,  aside  from  the  construc- 
tion we  have  put  upon  the  plaintiff's  statement,  and  as- 
suming that  compensatory  damages  have  not  been 
claimed,  would  not  set  up  a  new  cause  of  action  barred 
by  the  statute  of  limitations.  The  cause  of  action  is  the 
defendant's  act  of  negligence  resulting  in  injury  to  plain- 
tiff. An  amendment  merely  adding  an  additional  item 
of  claim  for  damages  issuing  out  of  the  same  wrongful 
act  is  not  a  departure.  This  court  has  frequently  held 
that  an  amendment  simply  introducing  an  additional 
element  of  damage  arising  out  of  the  same  circum- 
stances may  be  allowed  at  any  time :  Puritan  Coal  Min- 
ing Co.  V.  Penna.  R.  B.  Co.,  237  Pa.  420;  Armstrong  & 
Latta  V.  Philadelphia,  249  Pa.  39. 

The  second  assignment  of  error  complains  of  inade- 
quacy of  the  court's  charge,  in  so  far  as  it  relates  to  the 
measure  of  damages  based  on  the  earnings  of  deceased, 
and  also  as  to  the  instructions  for  determining  the  pres- 
ent worth  of  future  earnings.  The  court  charged  that 
in  fixing  the  amount  of  earnings  the  jury  should  con- 
sider the  age,  health,  ability  and  disposition  to  labor 
and  the  habits  of  living  of  deceased  and  referred  to  the 


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58  LEONARD  v.  BALT.  &  OHIO  R.  R.  CO.,  Appellant. 

Opinion  of  the  Court  [259  Pa. 

testimony  touching  the  extent  of  his  farming  operations. 
While  the  instruction  in  this  respect  is  brief  it  is  not 
erroneous,  and  if  defendant  desired  further  specific  in- 
structions, a  request  to  that  effect  should  have  been 
made:  Fortney  v.  Breon,  245  Pa.  47.  On  the  question 
of  present  worth,  the  court  charged :  "So  far  as  compen- 
sation depends  or  is  estimated  upon  future  earnings  or 
accumulations,  such  earnings  or  accumulations  are  to 
be  anticipated  and  capitalized  and  their  present  worth 
determined.  That  is,  what  lump  sum  paid  now  would 
be  their  equivalent?"  Here  also  the  instruction,  al- 
though brief,  is  a  correct  statement  of  the  law,  and,  if 
counsel  considered  a  more  extended  charge  necessary,  a 
request  to  that  effect  should  have  been  made.  Had  a 
total  absence  of  adequate  instruction  on  this  point  ap- 
peared the  court  would  be  chargeable  with  reversible 
error,  even  though  no  request  for  a  specific  charge  upon 
that  subject  was  made  by  counsel :  McLane  v.  Pittsburgh 
Rys.  Co.,  230  Pa.  29.  The  charge  on  this  branch  of  the 
case  while  not  erroneous  would  no  doubt  have  been  of 
greater  help  to  the  jury  had  the  question  of  present 
worth  been  more  fully  enlarged  upon. 

The  third  assignment  refers  to  the  admission  of  evi- 
dence of  a  conversation  between  the  conductor  of  the 
train  and  a  witness  shortly  after  deceased  had  been 
ejected  and  after  the  train  had  departed  from  the  next 
station,  after  receiving  and  discharging  passengers  at 
that  stop.  The  conversation  complained  of  consisted  of 
a  question  by  the  witness  addressed  to  the  conductor 
asking  his  reason  for  ejecting  deceased  "in  front  of  tliat 
passenger  train,  when  you  knew  the  passenger  train  was 
due?"  to  which  the  conductor  made  no  reply,  the  in- 
ference being  an  admission  on  the  part  of  the  latter  of 
negligence.  The  reception  of  this  evidence  cannot  be 
sustained  on  the  ground  of  being  part  of  the  res  gestse, 
as  contended  by  plaintiff.  At  the  time,  the  incident  was 
a  bygone  event,  the  transaction  complete  and  the  con- 
versation between  the  conductor  and  the  witness  merely 


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LEONARD  V.  BALT.  &  OHIO  R.  R.  CO.,  AppeUant.  59 
1917.]  Opinion  of  the  Court. 

a  reference  to  past  events,  at  most  an  expression  of 
opinion  on  the  part  of  the  witness  as  to  the  responsi- 
bility for  the  accident  and  the  failure  of  the  conductor 
to  reply.  In  negligence  cases  the  actual  occurrence  is 
usually  confined  to  a  brief  interval  of  time  and  the  res 
gestse  of  the  transaction  accordingly  limited;  conse- 
quently the  period  when  declarations  become  merely  a 
narrative  of  a  past  occurrence  ordinarily  begins  im- 
mediately after  the  accident :  Keefer  v.  Pacific  Mutual 
Life  Ins.  Co.,  201  Pa.  448.  The  question  is  not  merely 
as  to  the  measure  of  time  or  distance  between  the  main 
occurrence  and  the  subsequent  conversation.  A  trans- 
action may  cover  a  considerable  period  of  time  or  it  may 
be  completed  in  a  moment  and  each  case  of  this  character 
must  necessarily  depend  upon  its  particular  circum- 
stances. Hence,  whether  a  few  minutes  or  half  an  hour 
elapsed  between  the  occurrence  and  the  conversation  is 
not  the  sole  criterion  for  determining  the  competency 
of  the  latter  as  evidence.  If,  as  in  this  case,  the  trans- 
action is  complete  and  ended,  its  ending  marks  the  limi- 
tation of  the  res  gestae  of  the  event,  and  declarations 
subsequent  thereto  become  merely  narrative  of  past  mat- 
ters. In  the  present  case  the  occurrence  was  ended,  the 
parties  had  departed  from  the  scene  of  the  accident, 
and,  although  but  a  short  time  had  elapsed,  the  conver- 
sation was  clearly  outside  the  res  gestae  of  the  trans- 
action: Keefer  v.  Pacific  Mutual  Life  Ins.  Co.,  supra; 
Greed  v.  Manufacturers'  Light  &  Heat  Co.,  238  Pa.  248, 
252;  Oster  v.  Schuylkill  Traction  Co.,  195  Pa.  320. 

It  is  also  suggested  the  evidence  was  objected  to  as 
not  being  pertinent  and  its  inadmissibility  cannot  now 
be  maintained  for  other  reasons.  This  objection  might 
be  sustained  were  it  not  that  the  record  further  shows 
plaintiflTET  counsel  urged  its  competency  because  of  its 
^Tiappening  so  close  to  the  time."  Immediately  after 
this  suggestion,  as  the  record  discloses,  the  trial  judge 
overruled  defendant's  objection.     In  this  condition  of 


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60  LEONARD  v.  BALT.  &  OHIO  B.  B.  CO.,  AppeU^nt. 

Opinion  of  the  Court  [269  Pa. 

the  record,  we  cannot  say  the  court  did  not  rule  on  the 
question  of  res  gestae: 

The  third  assignment  of  error  is  sustained,  the  judg- 
ment is  reversed  and  the  record  is  remitted  with  a  pro- 
cedendo. 


Commonwealth  ex  rel.,  Appellant,  v.  Strickler. 

Cities — Councilmen—rDiaclosure  of  interest — Quo  warranto — Act 
of  June  27,  1918,  P,  L.  668. 

A  writ  of  quo  warranto  issued  under  the  provisions  of  Section  9, 
Article  IV  of  the  Act  of  June  27, 1913,  P.  L.  668,  Sec.  9,  providing 
for  the  ousting  of  councilmen  who  should  vote  without  disclosing 
any  personal  or  private  interest  in  the  measure  voted  upon,  was 
held  properly  quashed,  where  all  that  appeared  was  that  the  coun- 
cilmen in  question  had  voted  for  a  tenant  as  janitor  of  a  municipal 
building  and  that  the  tenant  was  at  the  time  of  the  dection  in- 
debted to  him  for  rent 

Argued  May  7,  1917.  Appeal,  No.  146,  Jan.  T.,  1917, 
by  plaintiff,  from  order  of  C.  P.  Payette  Co.,  March  T., 
1916,  No.  758,  quashing  writ  of  quo  warranto  in  case  of 
Commonwealth  of  Pennsylvania  ex  rel.,  S.  John  Mor- 
row, District  Attorney  of  Fayette  County,  v.  J.  Arthur 
Strickler.  Before  Brown,  C.  J.,  Mbstrbzat,  Stewart, 
Frazbr  and  Walung,  JJ.    Appeal  dismissed. 

Quo  warranto  to  oust  public  official.  Before  Bbp- 
PBRT,  J, 

The  opinion  of  the  Supreme  Court  states  the  case. 

A  writ  of  quo  warranto  was  issued  and  subsequently 
quashed.     Commonwealth  appealed. 

Error  assigned  was  the  order  quashing  the  writ. 

H.  S.  Dumhauld,  for  appellant. 

A.  E.  Jones,  with  him  J.  B.  Adams,  for  appellee. 


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COM.  ex  rel.,  Appellant,  v.  STRICKLER.  61 

1917.]  Opinion  of  the  Court 

Per  Curiam,  June  30, 1917  : 

The  appellee,  while  a  member  of  council  of  the  City 
of  Uniontown,  voted  for  a  certain  person  as  janitor  for 
one  of  the  municipal  buildings.  The  man  for  whom  he 
voted  was  his  tenant,  indebted  to  him  for  rent  at  the 
time  of  the  election,  and  this  proceeding  was  instituted 
against  him  to  oust  him  from  his  office  as  councilman, 
under  Section  9,  Article  IV,  of  the  Act  of  June  27, 1913,. 
P.  L.  568,  which  is  as  follows :  "A  member  who  has  a 
personal  or  private  interest  in  any  measure  or  bill  pro- 
posed or  pending  before  the  council  shall  disclose  the 
fact  to  council,  and  shall  not  vote  thereon,  nor  take  any 
part  in  the  discussion  of  the  same.  If  such  interested 
person  shall  vote  without  disclosing  his  interest  in  such 
measure  or  bill,  and  the  same  be  carried  by  his  vote,  he 
shall  forfeit  his  office,  and  the  measure  or  bill  shall  be 
void." 

A  writ  of  quo  warranto  was  issued  in  pursuance  of  the 
suggestion  for  it,  but  was  subsequently  quashed  by  the 
court  below.  That  it  was  properly  quashed  appears 
from  the  following  in  the  opinion  quashing  it :  ^^As  ap- 
plied to  the  facts  of  this  case  the  word  interest'  in  the 
section  of  the  act  above  quoted  means  pecuniary  interest. 
We  do  not  think  it  can  be  contended  that  in  an  election 
of  city  employees  a  councilman  voting  for  one  with 
whom  he  has  business  relations,  who  might  be  indebted 
to  him  or  to  whom  he  might  be  indebted  on  current  ac- 
count, would,  for  that  reason,  offend  against  the  section 
of  the  act  referred  to  and  subject  himself  to  its  penalties. 
A  councilman  can  have  no  possible  pecuniary  interest  or 
profit  within  the  meaning  of  the  act  in  the  salary  of  a 
municipal  employee,  even  should  the  relation  of  debtor 
or  creditor  exist  between  them.  The  salary  is  paid  di- 
rectly to  the  employee  for  a  personal  service  in  the  ren- 
dering of  which  and  in  the  compensation  for  which  nec- 
essarily no  one  but  himself  can  be  concerned.  It  is  true 
that  the  grocer  with  whom  he  deals  and  the  landlord  of 
whom  he  rents  his  house  may  be  on  the  council  that  em- 


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62  COM.  ex  rel.,  Appellant,  v.  STRICKLER. 

Opinion  of  the  Court  [259  Pa. 

ployed  him  and  may  have  voted  to  employ  him,  but  that 
gives  them  no  interest  in  his  wages  or  the  right  to  any 
portion  of  them.  The  section  is  manifestly  not  aimed 
at  such  a  state  of  facts,  or  at  any  such  relation.  If  the 
relation  in  itself  is  not  of  such  a  character  as  to  come 
within  the  prohibition  of  the  act,  then  the  implication 
of  the  sixth  paragraph  of  the  suggestion  must  be  of  some 
,  misconduct  by  the  defendant  or  McDonald  or  both,  or  of 
some  corrupt  understanding  between  them.  For  this, 
clearly,  should  it  exist,  the  remedy  is  in  Section  7,  of 
Article  IV,  instead  of  Section  9." 
Appeal  dismissed  at  appellant's  costs. 


Peoples  Trust  Co.  of  Pittsburgh,  Appellant,  v.  Safe 
Deposit  &  Trust  Co.  of  Pittsburgh. 

Equity — Corporations — Names — Confusion  of  names. 

A  bill  in  equity  to  restrain  a  corporation  from  filing  in  the  office 
of  the  secretary  of  the  Commonwealth  a  certificate  showing  its 
change  of  name  was  properly  dismissed  where  the  evidence  offered 
by  the  plaintiff  did  not  sustain  the  conclusion  averred  in  the  bill, 
namely,  that  the  change  of  name  against  which  it  protested  would 
result  in  confusion  in  the  business  of  the  plaintiff  and  defendant. 

Argued  May  8,  1917.  Appeal,  No.  83,  Oct.  T.,  1917, 
by  plaintiff,  from  decree  of  C.  P.  Allegheny  Co.,  Jan.  T., 
1917,  No.  2115,  dismissing  bill  in  equity  in  case  of  Peo- 
ples Trust  Company  of  Pittsburgh  v.  The  Safe  Deposit 
&  Trust  Company  of  Pittsburgh.  Before  Brown,  C.  J., 
Mestrezat,  Stewart,  Frazbr  and  Walling,  JJ.  Af- 
firmed. 

Bill  in  equity  praying  that  defendant  be  restrained 
from  filing  in  the  office  of  the  Secretary  of  the  Common- 
wealth a  certificate  showing  the  change  of  its  corporate 
name. 


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PEOPLES  TR.  CO.,  Appel.,  v.  SAFE  DEP.  &  TB.  CO.  63 
1917.]  Statement  of  Facts. 

Carpbnter,  J.,  found  the  following  facts : 

First.  The  Safe  Deposit  &  Trust  Company  of  Pitts- 
burgh was  incorporated  by  act  of  assembly  approved 
January  24,  1867,  P.  L.  116. 

Second.  The  Peoples  Savings  Bank  of  Pittsburgh  was 
incorporated  by  act  of  assembly  approved  April  17, 1868, 
P.  L.  1207. 

Third.  The  Peoples  Trust  Company  of  Pittsburgh  was 
incorporated  in  1901  pursuant  to  Act  of  Assembly  of 
April  29,  1874,  P.  L.  73,  and  supplements  and  amend- 
ments thereto. 

Fourth.  The  Safe  Deposit  &  Trust  Company  owns  or 
controls  all  the  stock  of  the  Peoples  Savings  Bank. 

Fifth.  On  the  6th  day  of  January,  1917,  the  said  Safe 
Deposit  &  Trust  Company  filed  its  application  with  the 
Secretary  of  the  Commonwealth,  for  change  of  name  and 
title  to  that  of  "Peoples  Savings  &  Trust  Company  of 
Pittsburgh,''  said  application  being  in  due  form  and  pur- 
suant to  vote  of  the  stockholders  of  the  applicant  taken 
January  5, 1917. 

Sixth.  Prior  to  January  6,  1917,  to  wit,  December  21, 
1916,  the  Peoples  Trust  Company  filed  in  the  office  of 
the  Secretary  of  the  Commonwealth,  a  protest  against 
the  change  of  name  set  out  in  Finding  No.  5. 

Seventh.  On  January  6,  1917,  the  Secretary  of  the 
Commonwealth  approved  the  action  of  the  Safe  Deposit 
&  Trust  Company,  and  the  application  for  change  of 
name,  and  issued  a  certificate  in  accordance  therewith. 

Eighth.  The  Safe  Deposit  &  Trust  Company  is  located 
and  conducts  its  business  at  the  corner  of  Fourth  avenue 
and  Wood  street  in  the  City  of  Pittsburgh. 

Ninth.  The  Peoples  Trust  Company  is  located  and 
conducts  its  business  at  1738  Carson  street,  in  said  City 
of  Pittsburgh. 

Tenth.  The  location  of  the  Safe  Deposit  &  Trust  Com- 
pany is  in  the  business  center  of  what  is  popularly 
known  as  the  "Old  City,"  and  the  location  of  the  Peo- 
ples Trust  Company  is  between  17th  and  18th  streets 


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64  PEOPLES  TR.  CO.,  AppeL,  v.  SAFE  DEP.  &  TB.  CO. 
Statement  of  Facts — Opinion  of  the  Court  [259  Pa. 
in  that  portion  of  the  city  popularly  known  as  the 
"South  Side." 

Eleventh.  The  places  of  business  of  plaintiff  and  de- 
fendant are  approximately  one  and  nine-tenths  (1.9) 
miles  apart,  the  sections  of  the  city  in  which  they  are  re- 
spectively located  being  separated  by  the  Monongahela 
river. 

Twelfth.  The  evidence  offered  by  plaintiff  does  not 
sustain  the  conclusion  averred  in  the  bill,  to  wit :  that 
the  change  of  name  against  which  it  protests  will  result 
in  confusion  in  the  business  of  plaintiff  and  defendant, 
or,  to  any  appreciable  degree,  will  be  detrimental  to  the 
interests  of  either  or  to  their  present  or  prospective  cus- 
tomers.' 

Upon  the  f adts  as  found  the  court,  inter  alia,  found  the 
following  conclusion  of  law : 

"Fourth.  The  change  of  name  from  Safe  Deposit  & 
Trust  Company  to  Peoples  Savings  &  Trust  Company  is 
not  a  violation  of  the  rights  of  the  Peoples  Trust  Com- 
pany.'' 

The  bill  was  accordingly  dismissed.  Plaintiff  ap- 
pealed. 

Error  assigned,  inter  alia,  was  in  dismissing  tiie  bill. 

Edward  J.  McKenna,  of  McKenna  d  McKenna,  with 
him  William  U.  Lemon,  for  appellant. 

Thomas  Patterson,  with  him  James  8.  Crawford  and 
Patterson,  Crawford,  Miller  &  Arensherg,  for  appellee. 

Per  Curiam,  June  30,  1917 : 

This  appeal  is  dismissed  and  the  decree  of  the  court 
below  affirmed,  at  appellant's  costs,  on  the  tenth,  elev- 
enth and  twelfth  facts  found  by  the  learned  chancellor 
below,  and  the  fourth  conclusion  of  law  which  logically 
followed  them. 


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COMMONWEALTH  v.  ANTHONY,  AppeUant.        65 
1917.]  Syllabus— Charge  of  Court. 


Commonwealth  v.  Anthony,  Appellant. 

Criminal  law — Murder — Murder  of  the  first  degree — Charge — 
Evidence — Crose-examination. 

1.  A  verdict  of  murder  of  the  first  degree  was  sustained  where 
there  was  evidence  to  show  that  while  the  deceased  and  a  third 
party  were  engaged  in  a  fight  the  defendant  heard  the  quarreling, 
came  from  a  house  some  distance  away,  removed  his  coat,  picked 
up  a  shovel,  lifted  the  shovel  with  both  hands  and  approaching 
the  deceased  from  the  back  struck  him  a  severe  blow  on  the  side 
of  the  heady  from  which  blow  deceased  died. 

2.  In  such  case  the  court  committed  no  error  in  refusing  a  point 
charging  that  there  was  no  evidence  to  establish  an  intent  to  take 
life. 

3.  In  such  case  the  court  committed  no  error  in  refusing  to 
permit  the  attorney  for  the  defendant  to  further  cross-examine  a 
witness  produced  by  the  Commonwealth  in  rebuttal  to  prove  that 
the  deceased  had  been  seen  at  a  specified  time  where  such  further 
cross-examination  related  to  the  location  of  other  parties  subse- 
quent to  the  time  testified  to  by  the  witness. 

Argued  May  14, 1917.  Appeal,  No.  123,  Jan.  T.,  1917, 
by  defendant,  from  sentence  of  Oyer  and  Terminer  Cum- 
berland Co.,  Feb.  Sessions,  1917,  No.  17,  on  verdict  of 
murder  of  the  first  degree  in  case  of  Commonwealth  of 
Pennsylvania  v.  James  Anthony.  Before  Brown,  C.  J., 
Potter,  Stewart,  Moschziskbr  and  Walung,  J  J.  Af- 
firmed. 

Indictment  for  murder. 

The  main  facts  appear  in  the  following  portion  of  the 
charge  by  Sadler,  P.  J. : 

Now,  you  will  consider  all  that  was  said  as  to  these 
contradictions,  whether  they  were  as  to  essential  facts, 
and  whether  the  explanations  made  by  Bigler,  Walton 
and  Hamlet  on  the  stand  were  satisfactory.  As  we  re- 
member, they  all  admitted  that  they  had  stated  that  they 
did  not  know  the  man,  but  explained  that  they  meant 
thereby  tiiat  they  did  not  know  the  name,  and  not  that 
Vol,  ccux— 5 


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66        COMMONWEALTH  v.  ANTHONY,  AppcUant. 

Charge  of  Court.  [259  Pa, 

they  did  not  identify  Anthony.    You  will  remember, 
however,  what  was  said. 

In  rebuttal,  the  Commonwealth  oflEered  evidence  to 
show  that  Anthony's  story  was  untrue.  Daniel  Hunts- 
berger  and  William  Bynard  were  called.  They  had 
charge  of  the  bar  on  the  nineteenth.  They  swore  that 
Anthony  did  not  come  there  and  purchase  liquor  as  he 
testified. 

Joseph  A.  Weibley  and  Holmes  Koser  testified  that 
Anthony  was  on  the  six  o'clock  trolley  car  in  the  eve- 
ning, leaving  for  Carlisle.  If  they  are  correct,  they  con- 
tradict in  part  not  only  Anthony,  but  the  story  of  Hall 
and  Milly  Boss. 

Mr.  Whitaker  testified  that  he  was  not  intoxicated,  as 
he  claimed,  when  he  came  to  the  commissary  at  one 
o'clock,  and  that  his  appearance  and  conduct  so  showed. 

Clifford  Woodson  testified  to  seeing  Anthony  out  at 
the  water  closet  at  the  time  Ury  was  removed  on  the 
wagon  from  the  pump  house,  and  Charles  Hamlet  testi- 
fied to  Josey  Jones'  statement  to  him  that  she  had  told 
James  not  to  go  down  to  the  pump  house,  but  that  he 
had  said  he  would  not  stand  for  any  one  attacking  one 
of  his  color. 

Briefly  then,  gentlemen,  this  is  the  testimony  in  chief, 
in  defense  and  in  rebuttal.  I  have  not  attempted  to  give 
it  all,  but  you  will  remember  every  part. 

There  is  a  wide  conflict.  It  will  be  for  you  to  test  the 
facts  by  considering  the  circumstances  which  surround 
the  case — the  possible  interest  of  the  parties — their 
credibility — the  corroboration  of  the  statements  which 
they  made,  and  to  give  credence  where  it  belongs. 

Now  it  seems  to  us  that  certain  clear  facts  stand  out 
prominently,  though  the  facts  are  all  for  you. 

First.  Ury  is  dead.  Second.  He  died  as  a  result  of  a 
blow  on  the  head  delivered  by  a  blunt  instrument.  Next, 
that  Hamlet  and  Ury  had  been  fighting,  and  Bigler  and 
Walton  were  present  and  interfered.  Nei^t,  that  while 
scuffling,  some  colored  man  ran  across  the  road,  took 


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COMMONWEALTH  v.  ANTHONY,  AppeUant.       67 
1917.]  Charge  of  Court 

off  his  coat;  crossed  the  coal  pile,  lifted  the  shovel  with 
both  hands  and  approaching  Ury  from  the  back,  struck 
him  a  severe  blow  on  the  side  of  the  head^  so  severe  that 
the  witness  for  the  defense,  Mary  Gamble,  heard  the 
crack  on  her  porch,  at  the  red  house  and  that  the  man  ran 
back  the  same  way,  picked  up  his  coat  and  made  off. 
These  facts  are  testified  to  with  variations  by  witnesses 
on  both  sides. 

The  real  conflict  is — who  was  this  man?  Besides  the 
dead  man,  six  persons  were  present  when  the  blow  was 
delivered  or  saw  it  struck.  Bigler,  Mr.  Miller,  Mrs. 
Miller,  Hamlet  and  Walton — all  five  of  whom  swore  the 
man  was  Anthony,  and  Mary  Gamble,  who  swears  it  was 
not.  Testimony  was  offered  to  throw  discredit  on  the 
identification  of  Hamlet  and  Walton,  as  you  will  remem- 
ber, and  of  Bigler  by  showing  that  he  said  the  man  went 
out  the  other  door,  and  that  he  did  not  know  the  man. 
But  as  we  remember,  no  such  contradictions  were  shown 
as  to  Miller  and  his  wife,  whose  story  is  corroborated  in 
many  respects,  other  than  the  identification,  and  the 
statement  of  the  colored  woman,  by  witnesses  on  both 
sides.    Were  they  correct  or  were  they  mistaken? 

Now  the  defendant  claims  he  did  not  commit  the  o^ 
fense,  being  intoxicated  in  his  room,  and  to  his  location 
there  Hall,  Milly  Boss,  Gracey  Webster  and  Josey  Jones 
jilso  testify.  If. they  are  correct,  then  the  others  are 
wrong.    It  will  be  for  you  to  say  which  story  is  correct. 

Anthony's  story  as  to  his  purchase  of  drinks  is  at- 
tacked by  the  testimony  of  Huntsberger  and  Bynard,  his 
intoxication  at  one  o^clock  by  Whitaker,  his  presence  in 
the  yard  in  the  afternoon  by  Woodson,  and  in  the  trolley 
car  in  the  evening  by  Weibley  and  Koser.  Aud  if  Weib- 
ley  and  Eoser  are  correct,  they  also  contradict  in  part 
the  stories  of  Milly  Boss  and  Hall,  who  said  Jim  was  in 
his  room  after  six  o'clock.  Now  somebody  is  wrong  or 
mistaken,  to  use  no  harsher  expression,  who  it  is  will 
be  for  you. 

Verdict  of  guilty  of  murder  of  the  first  degree.    Sen- 


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68        COMIMONWEALTH  v.  ANTHONY,  Appellant. 

Assignment  of  Errors.  [259  Pa. 

tence  of  death  was  subsequently  passed.     Defendant  ap- 
pealed. 

Errors  assigned  were  as  follows : 

First.  The  court  erred  in  not  affirming  without  quali- 
fication, the  defendant's  third  point. 

The  point  and  answer  found  in  the  charge  of  the  court 
are  as  follows : 

To  constitute  murder  in  the  first  degree  in  this  case 
there  must  have  been  an  actual  intent  to  take  the  life 
of  Michael  Ury  by  the  man  who  struck  him  with  the 
shovel,  and  there  is  no  evidence  to  establish  such  intent. 
The  burden  rests  on  the  Commonwealth  to  show  beyond 
a  reasonable  doubt  that  the  killing  was  intentional  and 
wilful.  In  Pennsylvania  the  law  presumes  a  murder 
no  higher  than  the  second  degree,  the  burden  resting  on 
the  Commonwealth  to  establish  a  higher  grade  of  crime. 

Answer :  Refused  as  stated.  The  point  would  be  af- 
firmed were  it  not  for  the  phrase  "there  is  no  evidence 
to  establish  such  intent."  This  is  a  question  for  the 
jury  under  the  evidence,  and  instructions  which  we  will 
subsequently  give  you. 

Second.  The  court  erred  in  instructing  the  jury  as  fol- 
lows: 

Would  the  facts  indicate  that  the  blow  was  delivered 
with  an  intent  to  kill,  and  was  deliberately  delivered 
and  with  premeditation?  Is  this  shown  by  the  acts  of 
preparation  in  taking  off  the  coat,  approaching  the  back 
of  the  man  to  be  attacked. 

Third.  The  court  erred  in  instructing  the  jury  as  fol- 
lows: 

Would  the  facts  indicate  that  the  blow  was  delivered 
with  an  intent  to  kill,  and  was  deliberately  delivered 
and  with  premeditation?  Is  this  shown  by  the  acts  of 
preparation  in  taking  off  the  coat,  approaching  the  back 
of  the  man  to  be  attacked,  with  shovel  upraised  in  both 
hands,  and  the  delivery  of  a  blow  on  the  head  so  hard 
as  to  make  it  crack. 


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COMMONWEALTH  v.  ANTHONY,  Appellant.  69 
1917.]  Assignment  of  Errors. 

Fonrth.  The  court  e^red  in  refusing  to  permit  counsel 
for  the  defendant  to  continue  in  his  cross-examination 
of  Clifford  Woodson,  as  follows  (Record  pp.  613,  614). 

Q.  He  was  there  in  the  open? 

A.  Yes. 

Q.  Can  you  say  how  soon  after  that  you  saw  Hamlet? 

A.  Yes. 

Q.  How  long  after? 

A.  I  saw  him  about  five  minutes  after  that. 

The  Court:  That  is  as  far  as  you  can  go.  He  was 
called  to  show  merely  that  he  saw  the  defendant,  who 
had  said  he  was  in  his  room  at  the  time — that  he  had 
seen  him  at  a  specified  time— as  to  what  he  saw  when  he 
met  Anthony,  we  will  allow  him  to  testify,  not  beyond 
that. 

Mr.  Berg :  Give  us  an  exception. 

The  Court :  Yes ;  if  you  put  it  in  the  shape  of  an  offer. 

Mr.  Berg:  It  is  intended  to  further  interrogate  the 
witness  on  the  stand  for  the  purpose  of  ascertaining  the 
correctness  of  his  story,  and  to  attack  his  credibility. 

By  the  Court :  The  witness  having  been  called  by  the 
Commonwealth  in  rebuttal  to  contradict  the  statement 
of  the  defendant,  Anthony,  that  he  was  in  his  room  the 
whole  of  the  afternoon,  by  showing  at  a  certain  time 
after  the  fight  he  was  in  the  yard  between  the  red  and 
yellow  houses,  and  having  been  called  for  that  purpose 
alone,  and  the  purpose  of  the  present  offer  being  to  in- 
quire as  to  the  location  of  other  parties  subsequent  to 
the  time  testified  to  by  him,  the  testimony  is  refused,  it 
not  being  proper  cross-examination  of  the  witness  called 
in  rebuttal  for  the  purpose  of  contradicting  a  statement 
of  the  defendant  as  to  his  location  in  his  room  the  whole 
of  the  afternoon.  The  movements  of  the  witness  after 
the  time  concerning  which  he  was  called  to  testify,  would 
not  be  admissible  in  this  cross-examination.  Exception 
noted  for  the  defendant. 

Fifth.  The  court  erred  in  entering  the  following  judg- 
ment: 


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70       COMMONWEALTH  v.  ANTHONY,  AppeUant. 

Assignment  of  Errors — Opinion  of  the  Court  [259  Pa. 
The  sentence  of  the  conrt  upon  you  is  that  you  shall 
suffer  death  by  having  passed  through  your  body  a  cur- 
rent of  electricity  of  sufficient  intensity  to  cause  death, 
and  the  application  of  such  current  must  be  continuous 
until  you  are  dead,  and  the  said  punishment  shall  be 
inflicted  as  directed  by  the  Act  of  June  19,  1913,  P.  L. 
528. 

Herman  Berg^  Jr.,  for  appellant 

William  A,  Kramer,  with  him  John  D.  Falter  and 
George  E.  Lloyd,  District  Attorney,  for  appellee* 

Per  Curiam,  June  30, 1917: 

In  the  performance  of  the  duty  imposed  upon  us  by 
the  Act  of  February  15, 1870,  P.  L.  15,  we  have  reviewed 
both  the  law  and  the  evidence  in  this  case,  and  find  that 
the  ingredients  necessary  to  constitute  murder  of  the 
first  degree  were  proved  to  exist  on  the  trial  of  the  pris- 
oner. The  instructions  complained  of  in  the  first,  sec- 
ond and  third  assignments  are  free  from  error.  The 
latitude  asked  for  by  the  prisoner's  counsel  in  the  cross- 
examination  of  the  witness  called  by  the  Commonwealth 
in  rebuttal,  was  properly  denied,  ifor  the  reason  given 
by  the  learned  trial  judge.  The  fifth  and  last  assign- 
ment complains  only  of  the  judgment,  which  is  now  af- 
firmed, with  direction  that  the  record  be  remitted  for 
the  purpose  of  execution. 


Purlow,  Appellant,  v.  Soland,  Executor. 

Decedents*  estates — Claim  for  domestic  services — Nonsuit. 

In  an  action  against  the  exe<iutor  of  a  decedent's  estate  for  do- 
mestic services  rendered  testatrix,  judgment  of  nonsuit  was  prop- 
erly entered  where  there  was  no  proof  of  an  express  promise,  and 
the  teetimony  and  presumption  rebutted  an  implied  promise  to  pay 


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PURLOW,  Ai)pellant,  v.  ROLAND,  Exr.  71 

1917.]  Syllabus— Opinion  of  the  Court, 

for  the  services  rendered  and  where  the  presumption  that  the  plain- 
tiff was  paid  at  stated  intervals  was  not  overcome. 

Argued  May  14, 1917.  Appeal,  No.  336,  Jan.  T.,  1916, 
by  plaintiff,  from  judgment  of  nonsuit  of  C.  P.  Lancaster 
Co.,  Sept.  T.,  1915,  No.  25,  in  case  of  Annie  L.  Purlow 
V.  J.  D.  Roland,  Executor  of  Lucetta  Lehn.  Before 
Bbown,  C.  J.,  PoTTBB,  Stbwaet,  Mosghziskbb  and  Wal- 
UNO,  JJ.    Affirmed. 

Assumpsit  to  recover  for  domestic  services.  Before 
Hasslbb,  J. 

The  opinion  of  the  Supreme  Court  states  the  case. 

The  trial  judge  entered  a  compulsory  nonsuit  which 
the  court  subsequently  refused  to  strike  off.  Plaintiff 
appealed. 

Error  assigned  was  in  refusing  to  strike  off  judgment 
of  nonsuit. 

B.  F.  Davis,  for  appellant. 

if.  O.  Schaeffer,  for  appellee. 

Pbb  Cubiam,  June  30,  1917 : 

The  claim  of  the  appellant  is  for  domestic  services 
rendered  appellee's  testatrix.  The  nonsuit,  which  the 
court  below  refused  to  take  off,  was  entered  by  the  trial 
judge  for  three  good  reasons :  ( 1 )  The  plaintiff  declared 
on  an  express  promise  by  the  defendant's  decedent  to 
pay  her  for  the  services  rendered,  but  at  the  trial  failed 
to  prove  any  such  promise;  (2)  even  though  the  plain- 
tiff could  recover,  under  her  statement,  on  an  implied 
promise,  the  testimony  showed  that  the  services  were 
rendered  under  such  circumstances  as  to  rebut  a  promise 
to  pay  for  them ;  and  (3)  even  though  the  plaintiff  could 
recover  under  her  statement  on  an  implied  promise,  and 
the  services  were  such  as  to  imply  a  promise  on  the  part 


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Y2  PUJlLOW,  Appellant,  v.  ROLAND,  Exr. 

Opinion  of  the  Court  [269  Pa. 

of  the  decedent  to  pay  for  them^  she  cannot  recover  be- 
cause there  is  a  presumption  that  she  was  paid  at  stated 
intervals. 
Judgment  affirmed. 


Hollinger's  Estate  (No.  1). 

Decedents'  estates — Election  to  take  against  wUl — Exemption — 
Acts  of  April  1,  1909,  P.  L.  87,  and  July  21,  191S,  P.  L,  87 6^ Ap- 
praisement— Exemption  in  cash. 

1.  Where  a  husband  elects  to  take  his  $5,000  exemption  under 
the  Acts  of  April  1,  1909,  P.  L.  87,  and  July  21, 1913,  P.  L.  875,  in 
cash,  an  appraisement  is  not  necessary. 

2.  The  husband  of  a  testatrix  elected  to  take  against  his  wife's 
will  and  in  the  written  election  recited  that  the  eetate  in  question 
consisted  of  personal  property,  and  particularly  declared  his  de- 
sire to  have  $5,000  allotted  to  him  therefrom  as  allowed  by  the  Act 
of  April  1,  1909,  P.  L.  87.  It  appeared  that  the  entire  property 
for  distribution  consisted  of  cash  or  its  equivalent  The  auditing 
judge  awarded  decedent's  husband  the  requested  allowance,  in  ad- 
dition to  one-half  of  the  remaining  portion  of  her  estate.  Excep- 
tions were  filed  to  the  $5,000  award  because  there  was  no  appraise- 
ment as  provided  by  the  Act  of  1909.  Held,  the  exceptions  were 
properly  dismissed. 

Argued  May  14, 1917.  Appeal,  No.  16,  Jan.  T.,  1917, 
by  Celinda  L.  Harnish,  Ann  L.  Weidler,  Abraham  L. 
Weidler,  George  L.  Weidler,  Caroline  L.  Smith,  Elmira 
L.  Eby,  Anna  Seibert,  Susan  Porry,  Samuel  Brubaker 
and  John  Brubaker,  collateral  heirs  of  Susan  L.  Hol- 
linger,  Deceased,  from  decree  of  O.  C.  Lancaster  Co., 
March  T.,  1916,  No.  24,  dismissing  exceptions  to  adjudi- 
cation in  Estate  of  Susan  L.  Hollinger,  deceased.  Be- 
fore Brown,  C.  J.,  Potter,  Stewart,  Mosghziskbr  and 
Walunq,  JJ.    Affirmed. 

Exceptions  to  adjudication.    Before  Smh^h,  P.  J. 
The  opinion  of  the  Supreme  Court  states  the  case. 
The  court  dismissed  excepticms  filed  to  the  award  of 


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HOLLINGER'S  ESTATE  (No.  1).  73 

1917.]        Assignment  of  Error — Opinion  of  the  Court 
|5,000  to  Martin  B.  HoUinger,  husband  of  decedent 
The  collateral  heirs  appealed. 

En'or  assigned  was  in  dismissing  exception^  to  the 
adjudication. 

William  N.  Appel,  of  Appel  d  Appel,  for  appellants. 

B.  F.  Davis,  for  appellee. 

Opinion  by  Mr.  Justice  Moschziskbr,  June  30, 1917 : 

Martin  B.  Hollinger,  by  a  duly  signed,  acknowledged 
and  recorded  document,  which  was  filed  with  the  clerk 
of  the  court  below  and  served  upon  the  personal  reprer 
sentative  of  his  deceased  wife,  elected  to  take  against  the 
latter's  will.  In  this  written  election,  Mr.  Hollinger 
recited  that  the  estate  in  question  consisted  of  personal 
property,  and  particularly  declared  his  desire  to  have 
16,000  allotted  to  him  therefrom,  as  allowed  by  the  Act 
of  April  1, 1909,  P.  L.  87.  When  the  estate  came  before 
the  Orphans^  Court  for  adjudication,  the  auditing  judge 
took  cc^nizance  of  this  election  and  awarded  decedent's 
husband  the  requested  allowance,  in  addition  to  one-half 
of  the  remaining  portion  of  her  estate.  Exceptions  were 
filed  to  the  15,000  award,  *^cause  there  was  no  ap- 
praisement   ,  as  provided  by  the  Act  of 1909 

and  its  supplement'';  and,  upon  their  dismissal, 

this  api)eal  was  entered. 

Appellants  contend  that  a  duly  confirmed  appraise- 
ment is  essential  to  the  validity  of  an  allowance  under 
the  Act  of  1909,  supra ;  and  that  making  such  an  award 
in  the  absence  of  this  prerequisite  constitutes  reversible 
error. 

The  act  in  controversy  stipulates  that  "the  procedure 
for  appraising  and  setting  apart  the  said  |5,000  in  value 
of  property  shall  be  the  same  as  provided  in  Section  5 
of  the  act  of  assembly  approved  April  14,  one  thousand 
eight  hundred  and  fifty-one,  relating  to  widows'  exemp- 


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74  HOLLINGER'S  ESTATE  (No.  1).  ' 

Opinion  of  the  Court  [259  Pa. 

tions"  (P.  L.  612) .  The  Act  of  July  21, 1913,  P.  L.  875, 
supplementing  the  Act  of  1909,  provides  that  Hhe  ap- 
praisement and  setting  apart  shall  be  made  by  the  ap- 
praisers appointed  to  appraise  the  other  personal  estate 
of  decedent,"  and  that,  should  any  one  of  such  appraisers 
be  unable  to  act,  the  Orphans'  Court  may  appoint  an- 
other in  his  place  and  stead. 

Under  the  Act  of  1851,  supra,  it  was  early  decided 
(Larrison's  App.,  36  Pa.  130)  that,  when  the  election  is 
to  take  the  amount  of  the  exemption  in  cash  or  its 
equivalent,  an  appraisement  is  not  necessary,  this  rul- 
ing, which  was  followed  by  the  court  below,  being 
founded  upon  the  theory  that  ^^to  appraise  money  is  to 
count,  and  counting  answers  all  the  purposes  of  ap- 
praisement" (Peterman's  App.,  76  Pa.  116,  120) ;  this 
doctrine  has  been  consistently  adhered  to  ever  since: 
see  Seller's  Est.,  82  Pa.  153, 157;  Finney's  App.,  113  Pa. 
11,  16;  Towanda  Bank's  App.,  1  Mona.  (Pa.)  463; 
Beetem  v.  Getz,  5  Pa.  Superior  Ct.  71,  76;  Rigby's  Est., 
8  Pa.  Superior  Ct.  108, 112;  Sharp  v.  Woolslare,  25  Pa- 
Superior  Ct.  251, 254. 

We  find  no  departure  from  the  rule  followed  in  the 
foregoing  authorities;  in  fact,  the  rule  in  question  is 
plainly  recognized  even  in  Buckland's  Est.,  239  Pa.  608, 
612,  cited  by  appellants;  we  there  said:  ^^Cases  may 
arise  under  the  Act  of  1909,  as  they  have  under  the  Act 
of  1851,  in  which  the  estate  may  be  of  such  a  character 
as  to  make  an  appraisement  unnecessary." 

Of  course,  in  cases  where  real  estate  is  chosen  as  part 
of  the  15,000  allowance,  or  in  other  instances  where 
something  more  than  mere  counting  is  required  to  meas- 
ure the  property  taken,  an  appraisement  must  be  had ; 
and,  when  necessary,  it  must  be  made  as  provided  in  the 
relevant  acts  of  assembly.  Under  the  facts  at  bar,  how- 
ever, where  the  entire  property  for  distribution  consists 
of  cash  or  its  equivalent  (Finney's  App.,  supra),  no 
error  was  committed  in  dispensing  with  the  formality 
of  an  appraisement. 


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HOLLINQER'S  ESTATE  (No,  1).  75 

1917.]  Opinion  of  the  Court 

The  assignments  are  overruled  and  the  decree  is  af* 
firmed. 


HoUinger's  Estate  (No.  2). 

Decedents*  estates — Election  to  take  against  will — Share  of  htiS' 
hand—Lapsed  legacies. 

1.  Testatrix  left  no  children  and  all  the  legacies  provided  for  in 
her  will  save  one  had  lapsed  by  reason  of  the  deaths  of  the  respec- 
tire  legatees  prior  to  that  of  testatrix.  The  husband  of  testatrix 
elected  to  take  agiainst  her  will.  He  was  awarded  the  $5,000  ex- 
emption allowed  by  the  act  of  assembly.  The  balance  for  distribu- 
tion, consisting  of  personally,  was  awarded  one-half  to  appellant 
and  the  remainder  after  deducting  the  one  unlapsed  legacy  to  de- 
cedent's next  of  kin  according  to  the  intestate  law.  The  husband 
filed  exceptions  contending  that  he  was  entitled  to  the  entire  per- 
sonal estate  represented  by  the  lapsed  legacies.  The  auditing  judge 
dismissed  the  exceptions.    Held,  no  error. 

Practice,  Supreme  Court — Assignments  of  error  to  exceptions  to 
adjudication — Failure  to  quote  decree, 

2.  Assignments  of  error  to  exceptions  to  adjudication  in  the 
Orphans'  Court  are  not  in  proper  form  which  quote  the  exceptions 
but  not  the  ruling  of  the  court  thereon. 

Argned  May  14,  1917.  Appeal,  No.  8,  Jan.  T.,  1917, 
by  Martin  B.  Hollinger,  from  decree  of  O.  C.  ^Lancaster 
Co.|  March  T.,  1916,  No.  24,  dismissing  exceptions  to 
adjudication  in  Estate  of  Susan  L.  Hollinger,  deceased. 
Before  Brown,  C.  J.,  Potteb,  Stbwart,  Mosghziskbr 
and  Walung,  JJ.    Affirmed. 

Exceptions  to  adjudication.    Before  Smith,  P.  J. 

The  opinion  of  the  Supreme  Court  states  the  case. 

The  court  dismissed  exceptions  filed  by  Martin  B. 
Hollinger  to  adjudication.  Martin  B.  Hollinger  ap- 
pealed. 

Errors  assigned  were  in  dismissing  exceptions  to  ad- 

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76  HOLLINQER'S  ESTATE  (No.  2). 

Opinion  of  the  Court  [269  Pa. 

judication^  each  assignment  quoting  an  exception  but 
not  the  decree  of  the  court. 

B.  F.  Diwis,  for  appellant 

William  N.  Appel,  of  Appel  d  Appel,  for  appellees. 

Opinion  by  Mr.  Justice  Moschziskbr,  June  30, 1917 : 

This  is  an  appeal  by  Martin  B.  HoUinger  from  a  de- 
cree of  the  Orphans'  Court  of  Lancaster  County  direct- 
ing distribution  of  the  estate  of  his  late  wife,  Susan  L. 
Hollinger,  deceased. 

When  the  account  of  the  administratoi;  c.  t.  a^  was 
called  for  audit,  it  appeared  that  Mrs.  Hollinger  left  no 
children  and  that  all  the  legacies  provided  for  in  her 
will,  save  one  of  |1,000,  in  favor  of  John  Brubaker,  had 
lapsed,  by  reason  of  the  deaths  of  the  respective  legatees 
previous  to  that  of  the  testatrix.  Mr.  Hollinger  claimed 
15,000,  under  the  Act  of  April  1,  1909,  P.  L.  87,  which 
was  allowed  him  by  the  court  below.  The  net  balance 
for  distribution,  consisting  entirely  of  personalty,  was 
awarded,  one-half  to  appellant,  and  the  remainder,  after 
deducting  the  |1,000  legacy,  to  decedent's  next  of  kin 
according  to  the  intestate  law.  Appellant  complains  of 
this  latter  award,  contending  that  he  is  entitled  to  the 
entire  personal  estate  represented  by  the  lapsed  legaci^, 
less  certain  deductions  for  debts  and  expenses. 

The  following  excerpt  from  the  opinion  of  the  learned 
President  Judge  of  the  court  below  so  fully  and  correctly 
disposes  of  the  points  involved,  we  need  add  nothing 
thereto:  "Susan  L.  Hollinger  made  her  will,  and,  with 
the  exception  of  John  Brubaker,  lived  longer  than  the 
legatees  named  in  it,  who  were  not  in  a  class  protected 
against  the  lapsing  of  legacies ;  therefore,  the  testatrix 
died  intestate  as  to  nearly  all  of  her  estate.  As  the 
whole  of  it  is  personalty  and  there  was  no  issue,  all  of 
it  [would  have]  descended  to  her  husband,  Martin  B. 
Hollinger,  save  [that  portion  of  the  estate  represented 


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HOLLINGEB'S  ESTATE  (No.  2).  77 

1917.]  Opinion  of  the  Court 

by  the  amount  of]  the  bequest  to  John  Brubaker,  had  he 

[the  husband]  done  nothing ;    but  he  chose  to 

elect  to  take  against  her  will  and  thereby  reduced  his 
interest  to  the  same  as  would  have  been  hers  had  she 
survived  him  and  elected  to  take  against  his  will ;  and 
no  less  was  awarded  him  by  the  decree  to  which  he  has 
taken  exception.  In  the  light  of  Lee's  App.,  124  Pa.  74, 
it  would  be  a  work  of  supererogation  to  oflfer  anything 
in  supi)ort  of  the  legality  of  the  award;  therefore,  the 
exceptions  in  behalf  of  Martin  B.  Hollinger  are  dis- 
missed." 

We  see  no  merit  in  any  of  the  assignments  of  error, 
and,  furthermore,  none  of  them  is  in  proper  form  (Pre- 
natt  V.  Messenger  Printing  Co.,  241  Pa.  267,  270 ;  Bro- 
warsky's  Est.,  252  Pa.  35,  38) ;  they  are  all  dismissed. 

The  decree  is  affirmed. 


Mylin  v.  Hurst,  Appellant. 

Wills — Real  estate — Rule  in  Shelley's  Case — Act  of  April  £7, 
1856,  P.  L.  SeS'-TrusU—Dry  trusts. 

Testator  devised  to  his  grandson  a  farm  and  wood  lot  "for  and 
during  the  term  of  his  natural  life  and  after  his  death  unto  his 
lawful  issue  and  in  case  he  has  no  lawful  issue,  then  unto  his  next 
of  kin,  in  fee."  He  further  named  a  trustee  for  the  estate  given 
to  his  grandson  and  directed  the  trustee  "to  keep  properly  insured 
and  in  good  order  and  repair  all  huildings"  on  the  property.  No 
f imds  were  provided  for  insurance  or  repairs.  Held,  that  the  trust 
was  dry  and  passive  and  not  sufficient  to  prevent  the  operation  o^ 
the  rule  in  Shelley's  Case,  and  that  the  grandson  took  an  estate 
tail,  which  was  enlarged  by  the  Act  of  April  27,  1856,  P.  L.  868, 
into  a  fee. 

Submitted  May  14,  1917.  Appeal,  Na  61,  Jan.  T., 
1917,  by  defendant,  from  judgment  of  C.  P.  Lancaster 
Co.,  Dec.  T.,  1915,  No.  81,  for  plaintiff,  on  case  stated, 
in  case  of  Marius  H.  Mylin,  Jr.,  v.  S.  Grace  Hurst.    Be- 


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78  JnrLIN  V.  HURST,  Appellant. 

Statement  of  Facts— Arguments.  [259  Pa. 

fore  Bbown,  C.  J.,  Potter,  Stewabt,  Mo60hzi8KBE  and 
Walung,  JJ.    Affirmed. 

Case  stated  to  determine  title  to  land.  Before  Bass- 
UBB,  J. 

The  opinion  of  the  Supreme  Court  states  the  case. 

The  court  entered  judgment  in  favor  of  the  plaintiflF 
for  fS^OOO  in  accordance  with  the  terms  of  the  case 
stated.    Defendant  appealed. 

Error  assigned  was  in  entering  judgment  in  favor  of 
the  plaintiff  and  against  the  defendant. 

John  M.  Oroff,  for  appellant. — The  intention  of  testa- 
tor was  to  create  a  life  estate  in  favor  of  the  plaintiff 
and  this  intention  rules:  Packer's  Est.  (No.  1),  246  Pa. 
97;  Yamairs  App.,  70  Pa.  335;  Hastings  v.  Engle,  217 
Pa.  419 ;  Stout  v.  Good,  245  Pa.  383 ;  Lauer  v.  Hoffman, 
241  Pa.  315. 

The  rule  in  Shelley's  Case  cannot  be  invoked  where 
the  will  creates  an  active  trust :  Eshbach's  Est.,  197  Pa. 
153 ;  Little  v.  Wilcox,  119  Pa.  439;  HemphilFs  Est.,  180 
Pa.  95;  Xander  v.  Easton  Trust  Co.,  217  Pa.  485; 
West's  Est,  214  Pa.  35;  Strickler's  Est.,  250  Pa.  105; 
Ahl  V.  Liggett,  246  Pa.  246;  Mcintosh's  Est.,  158  Pa. 
528;  Frantz  v.  Race,  205  Pa.  150;  Dodson  v.  Ball,  60 
Pa.  492;  Owens  v.  Naughton,  23  Pa.  Superior  Ct.  639. 

Oliver  8.  Schaeffer,  for  appellee. — Plaintiff  took  an  es- 
tate in  fee  by  operation  of  the  rule  in  Shelley's  Case  and 
the  Act  of  April  27,  1855,  P.  L.  368:  Armstrong  v. 
Michener,  160  Pa.  21;  Brinton  v.  Martin,  197  Pa.  615; 
Lauer  v.  Hoffman,  241  Pa.  315;  McElwain  v.  Whitacre, 
251  Pa.  279. 

The  trust  is  a  dry  or  passive  trust,  which  is  not  af- 
fected by  the  rule  in  Shelley's  Case:  McCormick  v. 
Sypher,  238  Pa.  185;  Owens  v.  Naughton,  23  Pa.  Sn- 


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MTLIN  V.  HURST,  Appellant.  79 

1917.]  Arguments — Opinion  of  the  Court. 

perior  Ct.  639;  Marsh  v.  Piatt,  221  Pa.  431;  Carson  v. 
Fuhs,  131  Pa.  256;  Hemphill's  Est.,  180  Pa.  95. 

Opinion  by  Mb.  Justice  Pottbb,  June  30, 1917 : 

This  is  a  case  stated  for  the  opinion  of  the  court  as 
to  the  title  to  land.  In  the  will  of  Francis  Mylin, 
of  Lancaster  County,  dated  April  7, 1896,  he  devised  to 
his  grandson,  Marius  H.  Mylin,  Jr.,  a  farm  in  Provi- 
dence Township  and  a  wood  lot  in  Drumore  Township 
"for  and  during  the  term  of  his  natural  life,  and  after 
his  death  unto  his  lawful  issue  and  in  case  he  had  no 
lawful  issue,  then  unto  his  next  of  kin,  in  fee.'' 

The  testator  also  provided  in  his  will  as  follows :  "I 
direct  my  executor  and  the  trustees  hereinafter  named 
to  keep  properly  insured  and  in  good  order  and  repair 
all  buildings  on  my  properties  wherever  they  may  be,'' 
and  "I  nominate  and  appoint  my  friend  Christian 
Hoover  trustee  of  the  estate  herein  given  to  my  grand- 
son, Marius  Mylin,  Jr.,  with  whom  my  said  grandson  re- 
sides, and  I  nominate  and  appoint  my  nephew,  Samuel 
M.  Mylin,  Esq.,  of  Pequea  Township,  trustee  of  the  es- 
tate herein  given  to  my  grandson,  Francis  Marion  Mylin. 
And  finally  I  nominate  and  appoint  my  said  nephew, 
Samuel  M.  Mylin,  Esq.,  the  executor  of  this  my  last  will 
and  testament." 

The  court  below  was  of  opinion  that  under  the  will, 
the  plaintiff  took  title  in  fee  simple  to  the  land,  and  en- 
tered judgment  for  the  purchase-price  the  defendant 
having  purchased  the  land. 

That  the  devise  to  the  grandson  for  life,  and  after  his 
death  unto  his  lawful  issue,  created  an  estate  tail,  en- 
larged by  the  statute  into  a  fee,  is  not  to  be  doubted.  In 
Taylor  v,  Taylor,  63  Pa.  481,  Mr.  Justice  Shabswood 
said  (p.  483) :  "The  word  ^issue'  in  a  will  means  prima 
facie  the  same  thing  as  ^eirs  of  the  body,'  and  in  general 
is  to  be  construed  as  a  word  of  limitation." 

In  Ogden's  App.,  70  Pa.  501,  Mr.  Justice  Aonbw  said 
(p.  608) :  "It  is  well  settled  that  a  devise  to  the  lawful 


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80  MTLIN  V.  HUEST,  Appellant. 

Opinion  of  the  Court.  [259  Pa. 

issue  of  the  first  taker  is  prima  facie  a  limitation  to  the 
heirs  of  the  body  of  the  devisee,  and  therefore  vests  a  fee 
tail ;  and  this  is  the  case  even  where  the  devise  to  the 
first  taker  is  expressly  for  life." 

In  Armstrong  v.  Michener,  160  Pa.  21,  the  devise  was, 
as  in  the  present  case,  to  the  devisee  for  life,  and  at  his 
death  to  his  issue,  and  in  default  of  issue  to  his  next  of 
kin.  It  was  held  that  the  devisee,  by  the  operation  of 
the  rule  in  Shelley's  Case  and  the  Act  of  April  27, 1855, 
P.  L.  368,  took  an  estate  in  fee.  To  the  sbme  eflfect  is 
the  decision  in  Arnold  v.  Muhlenberg  College,  227  Pa. 
321,  326. 

But  it  is  suggested  that  the  testator  created  an  active 
trust  for  the  land  in  question  which  would  prevent  the 
application  of  the  rule  in  Shelley's  Case.  If,  however,  the 
trust  interposed  was  dry  or  passive,  it  would  not  affect 
the  operation  of  the  rule :  Carson  v.  Fuhs,  131  Pa,  256 ; 
Marsh  v.  Piatt,  221  Pa.  431;  McCormick  v.  Sypher,  238 
Pa.  185;  Ahl  v.  Liggett,  246  Pa.  246. 

By  the  terms  of  the  will,  the  legal  title  to  the  land  was 
placed  in  the  grandson.  The  only  duty  imposed  upon 
the  trustee  was  that  of  keeping  the  buildings  upon  the 
land  insured  and  in  good  order.  But  no  funds  were 
provided  for  insurance  or  repairs.  The  grandson  was 
entitled  to  the  possession,  control  and  beneficial  enjoy- 
ment  of  the  property  for  the  term  of  his  life,  without 
interference  by  the  trustee.  It  does  not  appear  from 
the  case  stated  that  there  are  any  buildings  upon  the 
land  in  question,  but  if  there  are  they  can  be  kept  in- 
sured and  repaired  by  the  cestui  que  trust  as  readily  as 
by  the  trustee.  The  court  below  rightfully  held  that 
the  trust  was  dry  and  passive,  and  not  sufficient  to  pre- 
vent the  operation  of  the  rule  in  Shelley's  Case. 

As  the  present  will  was  executed  prior  to  July  1, 1897, 
the  rule  of  construction  required  by  the  Act  of  July  9, 
1897,  P.  L.  213,  does  not  apply. 

The  judgment  is  affirmed. 


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ANDERSON  v.  KERN  et  al.,  AppeUants.  81 

1917.]  Syllabus— Statement  of  Facts. 

Anderson,  to  use,  v.  Kern  et  al.,  Appellants. 

Mortgages — Foreclosure — Assignment — Production  of  bond — De- 
fenses— Evidence — Practice,  Supreme  Court — Question  not  raised 
below, 

1.  The  production  of  a  bond  secured  by  a  mortgage  is  not  es- 
sential to  recovery  in  an  action  on  the  mortgage. 

2.  The  question  whether  the  assignment  of  a  mortgage  absolute 
on  its  face  was  in  x>oint  of  fact  subject  to  the  right  of  redemption 
by  the  assignor  upon  payment  by  him  of  a  debt  owed  the  assignee 
will  not  be  considered  by  the  Supreme  Court  where  it  has  not  been 
raised  in  the  court  below. 

3.  Where  in  an  action  of  scire  facias  sur  mortgage  the  defense 
was  that  the  use-plaintiff's  title  was  defective,  that  the  mortgage 
was  not  the  absolute  property  of  the  party  who  had  assigned  it  to 
the  use-plaintiff,  but  was  held  as  collateral  for  a  debt,  but  where 
the  assignor  of  the  use-plaintiff  testifying  for  defendant  stated 
that  he  had  received  the  mortgage  by  assignment  absolute  on  its 
face  as  security  for  the  payment  of  $3,000,  one-half  of  which  was 
to  be  paid  in  cash  and  the  balance  by  a  transfer  ta  the  witness  of 
a  promissory  note,  that  all  was  to  be  paid  at  the  maturity  of  the 
note,  and  that  if  not  so  paid  the  assignment  of  the  mortgage  was 
to  be  absolute,  that  upon  maturity  the  note  remained  unpaid,  so 
that  the  assignment  by  the  terms  of  the  agreement  testified  to  by 
defendant's  witness  became  absolute,  the  evidence  presented  did 
not  constitute  a  defense  to  the  action^  and  the  trial  judge  made  no 
error  in  directing  a  verdict  for  plaintiff. 

Argued  May  14, 1917.  Appeal,  No.  73,  Jan.  T.,  1917, 
by  B.  F.  Davis,  terre-tenant,  from  judgment  of  C.  P. 
Lancaster  Co.,  October  T.,  1913,  No.  36,  on  directed  ver- 
dict for  plaintiff  on  scire  facias  sur  mortgage  in  case  of 
William  Anderson,  to  the  use  of  James  G.  Powkes,  now 
to  the  use  of  John  E.  Malone,  v.  Emanuel  Kern,  Mort- 
gagor, with  notice  to  B.  F.  Davis,  Terre-Tenant.  Before 
Brown,  C.  J.,  Pottbb,  Stewart,  Moschziskbr  and  Wal- 
£JN6,  JJ.    Affirmed. 

Scire  facias  sur  mortgage.    Before  Hassles,  J. 
The  opinion  of  the  Supreme  Court  states  the  case. 
Voii.  CCLIX— 6 


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82  ANDERSON  v.  KERN  et  al.,  AppeUants. 

Assignment  of  Errors — Opinion  of  the  Court.   [259  Pa. 
The  court  directed  a  verdict  for  the  plaintiff  and  judg- 
ment was  entered  thereon.    B.  F.  Davis^  terre-tenant, 
appealed. 

Errors  assigned  were  various  instructions  of  the  court 
and  the  admission  of  certain  evidence. 

B.  F.  Davis  and  John  A.  Coyle,  of  Coyle  d  Keller,  with 
them  C.  Eugene  Montgomery,  for  appellant. 

John  E.  Malone,  with  him  Joseph  W.  Kenworthy  and 
John  M.  Oroff,  for  appellee. 

Opinion  by  Mb.  Justice  Walling,  June  30, 1917: 
On  March  3,  1899,  Emanuel  Kern,  being  the  owner  of 
a  piece  of  land  containing  about  nine  and  one-half  acres 
and  situated  at  Safe  Harbor,  Lancaster  County,  Pa., 
executed  a  mortgage  thereon  to  William  C.  Anderson  for 
five  thousand  dollars,  which  was  accompanied  by  a  bond. 
On  May  12,  1900,  Anderson,  by  an  assignment  absolute 
upon  its  face,  transferred  the  mortgage  and  accompany- 
ing bond  to  James  G.  Fowkes,  together  with  Kem^s  cer- 
tificate of  no  defense.  The  mortgage  and  assignment 
were  duly  recorded.  Thereafter,  in  December,  1900, 
Fowkes  was  adjudged  a  bankrupt,  and  in  1913  his  trus- 
tee for  a  valuable  consideration  assigned  the  bond  and 
mortgage  to  John  E.  Malone,  the  use-plaintiff.  Subse- 
quent to  the  execution  of  the  mortgage,  the  land  covered 
thereby  was  transferred  by  divers  conveyances  until,  by 
a  sheriff's  sale  in  1907,  the  title  became  vested  in  B.  F. 
Davis,  the  terre-tenant,  herein  called  the  defendant,  who 
interposed  a  defense  to  the  scire  facias  issued  upon  the 
mortgage.  The  court  below  at  the  conclusion  of  the 
trial  instructed  the  jury  to  find  a  verdict  for  the  plain- 
tiff for  the  full  amount  of  the  mortgage  and  interest; 
and  this  appeal  was  taken  by  the  defendant  from  the 
judgment  entered  thereon. 
The  bond  accompanying  the  mortgage  was  not  pro- 


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ANDERSON  v.  KERN  et  al.,  Appellants.  83 

1917.]  Opinion  of  the  Court. 

duced  in  court  and  seems  to  have  been  lost  while  in  the 
possession  of  the  trustee  in  bankruptcy.  Howeyer,  its 
production  was  not  essential  to  plaintiff's  right  of  action 
upon  the  mortgage :  Brownell  v.  Oviatt,  215  Pa.  514. 

Mr.  Fowkes,  being  called  as  a  witness  by  the  defend- 
ant, testified  to  the  effect  that  he  sold  Anderson  a  paint 
plant  for  three  thousand  dollars,  one-half  of  which  was 
to  be  paid  in  cash  and  the  balance  by  a  transfer  to  the 
witness  of  Jack  Bros.'  note  of  $1,500 ;  and  that  the  mort- 
gage was  assigned  to  him  as  security  for  the  payment  of 
the  three  thousand  dollars,  which  included  the  money 
and  the  note,  and  all  to  be  paid  at  the  maturity  of  the 
note  in  1900;  with  the  express  agreement  that  if  not 
so  paid  the  assignment  of  the  mortgage  was  to  be  abso- 
lute; and  that  no  part  of  said  three  thousand  dollars, 
either  the  note  or  the  money,  was  paid.  The  witness  also 
testified  that  he  had  endorsed  the  note  and  discounted 
it  at  the  National  State  Bank  of  Camden,  New  Jersey ; 
and  that  it  was  later  paid  in  whole  or  in  large  part  from 
the  proceeds  of  a  life  insurance  policy,  which  he  had  as- 
signed to  the  bank  as  security  for  that  and  other  indebt- 
edness. The  defendant  claimed  surprise  at  the  testi- 
mony of  this  witness  and  was  permitted  to  offer  in  evi- 
dence prior  statements  of  Mr.  Fowkes  to  the  effect  that 
the  mortgage  was  assigned  to  him  as  collateral  to  the 
Jaek  Bros.'  note  without  more.  These  statements  at 
most  were  only  competent  to  neutralize  the  evidence  of 
the  witness  and  not  as  substantive  evidence.  There  was 
no  proof  that  the  mortgage  was  ever  paid,  and  the  as- 
signment thereof  to  Fowkes  was  absolute  on  its  face; 
aside  from  his  testimony  there  was  nothing  to  show 
Anderson  was  indebted  to  him  or  that  the  assignment  of 
the  mortgage  was  in  any  sense  as  collateral  security. 
So,  but  for  Fowkes's  testimony,  the  right  to  recover  on 
the  mortgage  was  undoubted;  and,  being  defendant's 
own  witness,  his  testimony  must  be  taken  as  a  whole. 
Defendant  cannot  select  what  suits  him  and  reject  the 
balance.     There  is  no  other  evidence  on  that  question 


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84  ANDERSON  v.  KERN  et  al.,  AppeUants. 

Opinion  of  the  Court.  [259  Pa. 

and  the  contract  must  stand  as  the  witness  proved  it  or 
not  at  all.  In  that  light  it  did  not  constitute  a  de- 
fense to  the  action  on  the  mortgage,  as  by  the  terms  of  the 
agreement  the  mortgage  became  the  absolute  property  of 
Fowkes  when  no  part  of  the  three  thousand  dollars  was 
paid  at  the  maturity  of  the  note. 

Defendant  here  contends  that  despite  such  agreement 
the  mortgage  was  still  held  subject  to  the  rigl^t  of  re- 
demption by  the  assignor.  But  that  question  does  not 
seem  to  have  been  raised  in  the  court  below,  and,  if  not, 
cannot  be  considered  here :  Lindsay  v.  Button,  227  Pa. 
208;  Beaver  Boro.  v.  Beaver  Valley  R.  R.  Co.,  217  Pa. 
280;  National  Bank  of  Chester  Co.  v.  Thomas,  220  Pa. 
360.  And,  aside  from  that,  as  the  mortgage  was  never 
paid  nor  any  offer  made  to  redeem  it,  we  see  no  valid 
reason  why  it  could  not  be  foreclosed  at  the  instance  of 
the  use-plaintiff.  Anderson  could  not  satisfy  the  mort- 
gage after  he  bad  assigned  it  to  Fowkes,  nor  by  an  agree- 
ment to  do  so  affect  the  rights  of  the  latter.  The  evi- 
dence of  Fowkes  that  he  had  paid  the  Jack  Bros.'  note 
or  at  least  the  larger  part  of  it,  being  undisputed,  the 
fact  that  defendant  recently  obtained  a  transfer  of  the 
note  would  not  in  any  aspect  of  the  case  enable  him  to 
interpose  it  as  a  defense  to  the  mortgage,  for  there  is  no 
evidence  to  show  what  amount  if  any  is  still  unpaid 
upon  the  note.  It  does  not  seem  necessary  to  refer  sep- 
arately to  the  other  questions  raised  in  the  record. 

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


First  National  Bank,  Appellant^  v.  Gitt  and 
Delone. 

Partnerships — Existence  of  pdrfnawfcip— Jfviience— JiwujJWency 
'^Ooing  business — Assignment  to  alleged  partners — Status  of  -i«- 
signees — Trustees — Assignment  for  creditors — Accounting — Com-- 
missions — Tenants  in  common  —  Sharing  of  profits  —  Promissory 
notes — Nonsuit, 


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FIRST  NAT.  BANK,  Appel.,  v.  GITT  and  DELONE,  85 
1917.]  Syllabus— Assigmuent  of  Error. 

1.  A  diyision  of  the  product  of  property  between  tenants  in  com- 
mon does  not  make  them  partners,  although  they  may  have  con* 
tributed  labor  or  money  to  raise  it. 

2.  In  an  action  on  promissory  notes  against  two  defendants 
as  copartners  it, appeared  that  the  owner  of  a  going  business 
entered  into  a  written  agreement  with  the  defendants  under  which 
he  turned  over  his  entire  estate  to  them  for  the  purpose  of  ad- 
ministration ;  that  they  were  to  convert  the  property  into  cash  and 
apply  the  proceeds  Brst  to  the  payment  of  the  claims  of  creditors, 
then  to  the  payment  of  an  annuity  to  the  assignor,  then  to  other 
purposes  specified;  and  that  defendants  were  to  retain  for  them- 
selves the  residue  which  might  be  left  after  such  payments  had 
been  made.  It  did  not  appear  that  any  profits  were  made,  or  that 
the  business  was  carried  on  for  that  purpose  or  that  there  was  any 
understanding  between  the  defendants  aa  to  the  sharing  of  profits, 
or  that  they  held  themselves  out  as  partners  to  the  plaintiff.  The 
notes  in  question  were  given  by  one  defendant  and  represented  an 
old  indebtedness  of  the  assignor's  business,  such  defendant  en- 
dorsing the  notes  in  the  business  name  and  individually.  The 
other  defendant  had  nothing  to  do  with  the  negotiation  of  the 
notes.  Held,  the  defendants  were  not  partners  but  trustees,  and  a 
compulsory  nonsuit  was  properly  entered  as  to  the  defendant  who 
did  not  endorse  the  note. 

3.  The  transaction  was  in  the  nature  of  an  assignment  for  the 
benefit  of  creditors,  involving  an  accounting;  the  residue  repre* 
senting  conmiissions  of  the  assignees. 

Argued  May  14, 1917.  Appeal,  No.  234,  Jan.  T.,  1916, 
by  plaintiff,  from  judgment  of  C.  P.  York  Co.,  Jan.  T., 
1915,  No.  106,  refusing  to  take  off  compulsory  nonsuit 
in  case  of  First  National  Bank  of  Hanover,  Pennsyl- 
vania, V.  H.  N.  Gitt  and  Charles  J.  Delone,  Trading  and 
doing  business  as  S.  L.  Johns  Cigar  Company,  Before 
Brown,  C.  J.,  Pottbb,  Stewart,  Mosohziskbr  and  Wal- 
UNO,  JJ.    Affirmed. 

Assumpsit  on  two  promissory  notes.    Before  Boss,  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

The  lower  court  entered  a  compulsory  nonsuit  which 

it  subsequently  refused  to  take  off.    Plaintiff  appealed. 

Error  assigned,  among  others,  was  in  refusing  to  take 
off  nonsuit. 


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86  FIRST  NAT.  BANK,  Appel.,  v.  GITT  and  DELONE. 

Argtiments — Opinion  of  the  Court.  [259  Pa. 

Henry  C.  Niles,  with  him  Michael  8.  Niles,  Charles  A. 
May  and  George  E.  Neff,  for  appellant. — One  who  is  en- 
titled to  a  share  of  the  profits  arising  from  joint  prop- 
erty, is  by  operation  of  law  the  partner  of  the  other  joint 
owner  and  is  liable  upon  an  obligation  incurred  by  the 
other  in  regard  to  the  joint  business  with  the  joint 
property :  Purviance  v.  McClintee  et  al.,  6  S.  &  R.  259 ; 
Edwards  v.  Tracy,  62  Pa.  374;  Caldwell  v.  Miller,  127 
Pa.  442;  Righter  v.  Farrel,  134  Pa.  482;  Wessels  &  Ck>. 
V.  E.  Weiss  &  Co.,  166  Pa.  490;  Bradly  v.  Jennings,  201 
Pa.  473. 

Right  to  division  of  profits  constitutes  partnership: 
Simpson  v.  Summerville,  30  Pa.  Superior  Ct.  17. 

V.  K.  Keesey,  for  appellees. — Even  if  defendants  be 
considered  common  owners  of  the  property,  subject  to 
cerjtain  charges,  they  could  convert  it  into  cash  without 
incurring  the  liability  of  partners :  Butler  Savings 
Bank  v.  Osborne,  159  Pa.  10;  Taylor  v.  Fried,  161  Pa. 
53 ;  Walker  v.  Tupper,  152  Pa.  1 ;  Denithorne  v.  Hook, 
112  Pa.  240. 

Defendants  were  not  partners  but  cotrustees:  AhPs 
App.,  129  Pa.  26. 

The  relationship  of  mutual  agency  does  not  exist 
among  cotrustees:  Graham's  Est.  (No.  1),  218  Pa.  344. 

Opinion  by  Mr.  Justice  Potter,  June  30, 1917 : 
This  is  an  appeal  from  the  refusal  of  the  court  below 
to  take  oflf  a  judgment  of  compulsory  nonsuit.  The  ac- 
tion was  assumpsit  brought  to  recover  from  the  defend- 
ants, as  partners,  the  amount  of  two  certain  promissory 
notes  made  by  L.  M.  Long  &  Co.  to  the  order  of  S.  L. 
Johns  Cigar  Company,  and  endorsed  in  that  name  by 
H.  N.  Gitt,  and  by  H.  N.  Gitt  personally.  In  plaintiflPs 
statement  of  claim  it  was  averred  that,  on  the  dates  of 
the  notes  in  question,  "H.  N.  Gitt  and  Charles  J.  Delone 
were  copartners,  trading  and  doing  business  under  the 
name  of  S.  L.  Johns  Cigar  Company,"  and  that  the  notes 


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FIRST  NAT.  BANK,  Appel.,  v.  GITT  and  DELONE.  87 
1917.]  Opinion  of  the  Court. 

"were  taken,  endorsed  and  delivered  to  the  plaintifF  in 
and  about  the  business  of  the  said  copartnership  of  H. 
N.  Gitt  and  Charles  J.  Delone,  trading  and  doing  busi- 
ness as  S.  L.  Johns  Cigar  Company,  and  for  the  benefit 
and  in  the  business  of  the  said  copartnership." 

The  defendant  Gitt  made  no  defense  to  plaintiff's  de- 
nmnd,  but  Charles  J.  Delone  filed  an  affidavit  of  def ense^ 
in  which  he  denied  that  he  was  a  copartner  with  Gitt, 
or  had  traded  as  S.  L.  Johns  Cigar  Company,  or  was  in 
any  way  liable  on  the  notes  in  suit. 

Upon  the  trial,  at  the  close  of  plaintiff's  evidence,  the 
court  entered  judgment  of  compulsory  nonsuit,  upon  the 
ground  that  no  partnership  had  been  made  out,  and  no 
liability  upon  the  part  of  Delone  had  been  established. 
Plaintiff  has  appealed,  and  its  counsel  contend  that  the 
evidence  offered  was  sufficient  to  establish  the  fact  that 
the  defendants  purchased  property  which  they  employed 
for  their  mutual  profit,  and  that  the  obligations,  upon 
which  this  action  was  brought,  were  incurred  in  the 
management  of  a  business  from  which  they  were  jointly 
entitled  to  the  net  profits,  and  in  which,  it  is  argued, 
they  were,  therefore,  partners. 

In  an  article  of  agreement  which  was  offered  in  evi- 
dence, it  was  set  forth  that,  being  desirous  of  relief  from 
the  cares  growing  out  of  the  involved  condition  of  his 
business  affairs,  S.  L.  Johns,  upon  the  conditions  named, 
turned  over  his  entire  estate  to  Gitt  and  Delone  for  the 
pari>ose  of  administration.  They  were  to  convert  the 
property  into  cash  as  in  their  judgment  should  be  ad- 
visable. The  proceeds  were  to  be  applied,  first  in  pay- 
ment of  the  claims  of  creditors,  then  in  payment  of  an 
annuity  to  Johns  for  ten  years,  and  after  that  the  fixed 
sum  of  140,000  was  to  be  paid  to  him.  In  addition  they 
were  to  pay  to  Johns  or  his  heirs  such  sum  as  should  be 
necessary  to  acquire  a  clear  title  to  his  residence  and 
contents,  and  to  a  certain  farm  property  with  stock  and 
implem^its.  Provision  for  the  payment  of  certain  other 
sums  was  also  made,  and  if  Gitt  and  Delone  succeeded  in 


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88  FIRST  NAT.  BANK,  Appel.,  v.  GITT  and  DELONE. 

Opinion  of  the  Court.  [259  Pa. 

these  undertakings,  they  were  to  retain  for  their  own  use 
^^all  the  proceeds  and  property  remaining  after  the  above 
provisions  have  been  complied  with.''  It  thus  appears 
that,  while  Johns  made  an  absolute  conveyance  of  his 
property  to  Gitt  and  Delone,  they  took  it  only  for  the 
purpose  of  liquidation,  and  subject  to  the  payment  of  all 
the  indebtedness  of  Johns,  and  of  the  various  other  sums 
specified.  They  were  to  have  for  themselves  only  the 
residue  which  might  be  left  after  those  payments  were 
made.  A  division  of  the  product  between  tenants  in 
common  does  not  make  them  partners,  although  they 
may  have  contributed  labor  or  money  to  raise  it.  No 
presumption  of  partnership  arises  from  the  mere  fact  of 
cotenancy:  Taylor  v.  Fried,  161  Pa.  53.  The  defend- 
ants in  this  case  were  clearly  trustees  of  the  property 
and  were  liable  to  account  as  such :  AhPs  App.,  129  Pa. 
26.  We  find  nothing  in  the  agreement  which  expressly 
constitutes  the  defendants  actual  partners,  and  the  rec- 
ord is  bare  of  evidence  tending  to  show  that  they  ever 
held  themselves  out  to  the  public  as  such,  nor  does  it  ap- 
pear that  the  plaintijff  in  this  case  extended  credit  to 
them  as  partners.  The  testimony  shows  that  the  notes 
in  question  represented  old  indebtedness  of  L.  M.  Long 
&  Co.  to  the  cigar  company.  All  the  negotiations  with 
the  bank  were  conducted  by  H.  N.  Gitt,  who  endorsed 
the  notes,  signing  the  name  of  S.  L.  Johns  Cigar  Com- 
pany, and  also  endorsing  as  an  individual.  The  defend- 
ant Delone  had  nothing  to  do  with  the  negotiation  of  the 
notes.  The  agreement  discloses  no  intention  that  the 
business  should  be  carried  on  for  the  purpose  of  making 
profits  nor  does  it  appear  that  any  were  realized.  It 
was  only  after  the  indebtedness  of  Johns  had  been  dis- 
charged, and  the  various  sums  specified  had  been  paid, 
and  the  plan  had  been  successfully  carried  out  by  Gitt 
and  Delone,  that  they  were  to  retain  whatever  money  re- 
mained in  their  hands,  as  compensation  for  their  serv- 
ices. Such  a  sum  could  not  fairly  be  regarded  as  the 
profits  of  a  business  venture.    More  properly  speaking,  it 


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PIEST  NAT.  BANK,  Appel.,  v,  GITT  and  DELONE.  89 
1917.]  Opinion  of  the  Court. 

would  be  residue  derived  from  the  corpus  of  the  assigned 
estate,  as  the  entire  transaction  was  in  the  nature  of  an 
assignment  for  the  benefit  of  creditors,  with  the  compen- 
sation of  the  assignees  dependent  upon  the  skill  and 
ability  displayed  in  settling  the  affairs  of  the  estate. 

In  their  argument,  counsel  for  appellant  make  specific 
complaint  of  the  action  of  defendant  Delone  in  retaining 
certain  shares  of  telephone  company  stock  which  were 
obtained  as  partial  security  upon  the  indebtedness  of  L. 
M.  Long,  evidenced  in  part  by  the  notes  in  question. 
We  do  not  see,  however,  that  this  has  anything  to  do 
with  the  question  of  partnership.  Under  the  agreement, 
it  was  the  duty  of  Gitt  and  Delone  to  collect  this  indebt- 
edness, as  well  as  all  other  sums  due  to  Johns,  and  as 
trustees  they  are  liable  to  account  to  Johns,  and  perhaps 
to  his  creditors,  for  the  moneys  they  received.  But  in 
the  present  suit  the  effort  is  to  hold  them  as  partners, 
and  not  as  trustees.  Our  examination  of  the  record 
leads  us  to  agree  with  the  conclusion  of  the  court  below 
that  the  evidence  does  not  show  that  there  was  any  un- 
derstanding between  Gitt  and  Delone  as  to  any  sharing 
of  profits,  nor  does  it  appear  that  Delone  in  any  way 
gave  plaintiff  reason  to  believe  that  any  partnership  ex- 
isted between  Gitt  and  himself.  The  nonsuit  was  prop- 
erly entered,  and  the  refusal  to  take  it  off  was  justified. 

The  judgment  is  affirmed. 


Fetrow's  Estate. 

WUU — Consiruction — Oift  to  class — Vested  and  contingent  re- 
mainders— "Surviving" — "Survivors" — Time  for  determination  of 
class — Equity  of  distribution — Avoiding  intestacy, 

1.  It  is  a  greneral  rule  of  construction  that  the  word  "survivor'* 
or  "surviving"  following  a  prior  gift  is  understood  as  referrinar 
to  the  death  of  the  testator,  unless  a  contrary  intention  is  appar- 
ent. 

2.  Where  a  testator  directed  that  the  proceeds  of  his  real  estate, 


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90  FETROWS  ESTATE. 

Syllabus — ^Arguments.  [259  Pa. 

in  which  he  devised  a  life  interest  to  a  named  devisee,  should  ''be 
equally  divided  among  the  surviving  devisees  named  in  this  wiU 
or  their  legal  representatives,"  he  intended  that  the  recipients  of 
his  bounty  should  be  the  devisees  who  were  living  at  the  time  of 
his  own  death,  and  did  not  restrict  the  class  to  those  who  should 
survive  the  life  tenant. 

3.  In  such  case,  the  reasonable  interpretation  of  the  words  ''sur- 
viving devisees  or  their  legal  representatives"  is  to  refer  the  word 
"surviving"  to  testator's  death  and  to  construe  "or  their  legal 
representatives"  (whether  meaning  executors  and  administrators, 
heirs  or  next  of  kin)  as  intended  to  prevent  the  lapse  of  the  share 
of  any  legatee  who  might  die  before  the  time  for  distribution 
should  arise. 

4.  This  interpretation  avoids  intestacy  and  secures  equality  of 
distribution  among  the  legatees. 

Argued  May  14,  1917.  Appeal,  No.  97,  Jan.  T.,  1917, 
by  Amelia  J.  Rupp,  from  decree  of  O.  C.  York  Co.,  sus- 
taining exceptions  to  report  of  Auditor  in  estate  of 
Joshua  Fetrow,  deceased.  Before  Brown,  C.  J.,  Pot- 
ter, Stewart,  Mosohziskbr  and  Walung,  JJ.  Re- 
versed. 

Exceptions  to  report  of  auditor.  Before  Wanner, 
P.J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

The  lower  court  sustained  exceptions  to  the  report  of 
the  auditor.    Amelia  J.  Rupp  appealed. 

Error  assigned,  among  others,  was  in  sustaining  ex- 
ceptions to  the  auditor's  report. 

George  Hay  Kain,  of  Cochran,  Williams  d  Kain, 
with  him  E.  Philip  Stair  SLnd  David  P.  Klinedinst,  for 
appellant. — "Survivor'^  or  ''surviving'^  refers  to  the  death 
of  the  testator  and  not  to  the  death  of  the  life  tenants : 
Johnson  v.  Morton,  10  Pa.  245 ;  Passmore's  App.,  23  Pa. 
381;  Ross  v.  Drake,  37  Pa.  373;  McVey  v.  Latta,  4  W. 
N.  C.  524;  Barker's  App.,  1  Sadler  (Pa.)  324;  Shall- 
cross's  Est.,  200  Pa.  122;  Black  v.  Woods,  213  Pa.  583. 


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FETROWS  ESTATE.  91 

191Y.]  Argiunents — Opinion  of  the  Court. 

The  law  favors  vested  rather  than  contingent  estates, 
and,  unless  it  clearly  appears  from  the  context  or  the 
circnmstances  of  the  case  that  a  contingent  interest  was 
intended,  the  remainder  will  be  regarded  as  vesting  at 
the  death  of  the  testator  and  not  at  the  expiraticm  of  the 
life  tenancy:  Bache^s  Est.,  246  Pa.  276;  Tatham's  Est., 
250  Pa.  269;  Hood  v.  Maires,  255  Pa.  128;  Bair's  Est, 
255  Pa.  169. 

A  will  must  be  construed  so  that  each  clause  may  take 
effect  if  possible.  No  part  will  be  rejected  as  repugnant 
if  any  fair  and  reasonable  construction  can  be  given  to 
the  whole  which  will  render  each  part  effective:  Fin- 
ney's App.,  113  Pa.  11. 

The  term  "or  their  legal  representatives''  prima  facie 
means  executors  and  administrators:  Osborn  v.  First 
National  Bank,  175  Pa.  494;  Garrett's  Est.,  248  Pa.  199. 

The  use  of  the  words  "or  their  legal  representatives'* 
indicates  the  testator's  intention  that  the  legacies  should 
vest  at  his  death :  Muhlenberg's  App.,  103  Pa.  587;  Pat- 
terson V.  Hawthorne,  12  S.  &  R.  112;  King  v.  King,  1 
W.  &  S.  205;  Buckley's  Admr.  v.  Reed,  15  Pa.  83;  Mc- 
Gill's  App.,  61  Pa.  46. 

Jacob  E.  Weaver,  with  him  Donald  H.  Yost,  for  ap- 
pellees.— The  modem  rule  of  construction  is  that  if 
there  is  no  previous  interest  given  in  the  legacy,  the 
period  of  division  is  the  death  of  the  testator,  and  the 
survivors  on  his  death  will  take  the  whole  legacy.  But 
if  a  previous  life  estate  be  given,  then  the  period  of  divi- 
sion is  the  death  of  the  tenant  for  life,  and  survivors  at 
such  death  will  take  the  whole  legacy :  BeiflPs  Est.,  124 
Pa.  145;  Woelpper's  App.,  126  Pa.  562;  Mulliken  v. 
Eamshaw,  209  Pa.  226;  Anderson's  Est,  243  Pa.  34; 
CDonnell's  Est.,  252  Pa.  45. 

Opinion  by  Mr.  Justice  Potter,  June  30, 1917: 
Joshua  Petrow  died  February  25, 1864,  leaving  a  will 
which  contained  the  following  provisions:   *^I  give,  de- 


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92  PETROWS  ESTATE. 

Opinion  of  the  Court  [259  Pa. 

Tise  and  bequeath  unto  Lucinda  Diets  widow  of  Daniel 
Dietz  deceased,  now  living  with  me  during  her  natural 
life,  the  House  and  land  situate  in  said  Spring  Oarden 
Township,  adjoining  the  Codorous  Navigation,  Loucks 
Mill  road  and  lands  of  Daniel  Inunel  and  Alexander 
Hay  and  being  the  same  premises  lately  occupied  by 
Joseph  Sample.  She  to  have  and  hold  the  same  and 
keep  it  in  repair  during  her  natural  life  at  her  death  the 
same  to  be  sold  and  the  proceeds  thereof  to  be  equally 
divided  among  the  surviving  devises  [devisees]  named 
in  this  will  or  their  legal  representatives.'' 

Lucinda  Dietz,  who  subsequently  married  John  But- 
ter, died  December  15, 1914,  and  the  property  devised  to 
her  for  life  was  sold  by  George  A.  Fetrow,  administra- 
tor d.  b.  n.  c.  t.  a.  of  Joshua  Fetrow. 

The  question,  here  in  controversy,  is  whether,  when  the 
testator  directed  that  the  proceeds  of  the  real  estate  in 
which  he  devised  a  life  interest  to  Lucinda  Diets  should 
^^  equally  divided  among  the  surviving  devisees  named 
in  this  will  or  their  legal  representatives,"  he  intended 
that  the  recipients  of  his  bounty  should  be  the  devisees 
who  were  living  at  the  time  of  his  own  death,  or  those 
only  who  would  survive  the  life  tenant  The  auditor 
held  that  he  intended  the  former,  while  the  court  below 
was  of  opinion  that  the  latter  was  intended.  In  the  one 
case  the  legacies  would  vest  at  the  death  of  testator,  and 
in  the  other  at  the  death  of  the  life  tenant.  As  only  one 
of  the  devisees,  Michael  Fetrow,  survived  the  life  tenant, 
the  court  below  held  that  he  took  the  entire  fund  and 
awarded  it  to  his  executors.  This  appeal  was  tak^i  by 
Amelia  J.  Rupp,  a  legal  representative  of  a  devisee  who 
died  after  the  death  of  the  testator  but  before  the  death 
of  the  life  tenant. 

The  general  rule  in  Pennsylvania  is,  and  always  has 
been,  that  the  word  ^'survivor'*  or  ^^surviving"  follow- 
ing a  prior  gift,  is  understood  as  referring  to  the  death 
of  the  testator,  unless  a  contrary  intention  is  apparent : 
Shallcross's  Est.,  200  Pa.  122;  Woelpper's  App.,  126  Pa. 


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PETROW'S  ESTATE.  93 

IWT.]  Opinion  of  the  Court. 

662 ;  Boss  t.  Drake,  37  Pa.  373.  We  find  nothing  in  the 
will  of  Joshua  Fetrow  which  discloses  an  intention  that 
the  words  "surviving  devisees''  are  to  apply  to  a  period 
other  than  that  of  testator's  death.  In  order  to  make 
them  apply  to  the  period  of  the  life  tenant's  death,  the 
court  below  inserted  the  additional  word  "then."  But 
that  word  is  not  found  in  the  will,  in  that  connection. 
It  also  became  necessary  practically  to  ignore  the  words 
"or  their  legal  representatives."  It  is  true  that  the 
court  suggests  that  these  words  were  intended  to  pro- 
vide an  alternative  distribution  of  the  fund  in  the  event 
of  all  the  legatees  named  in  the  will  dying  before  the 
death  of  the  life  tenant  But  the  result  of  such  a  con- 
struction is  that  in  case  one  of  the  legatees  survived  the 
life  tenant,  which  actually  occurred,  the  words  "or  their 
legal  representatives"  are  given  no  eflfect  whatever. 

We  think  the  reasonable  interpretation  of  the  phrase 
"surviving  devisees  or  their  legal  representatives,"  is  to 
refer  the  word  "surviving,"  in  accordance  with  the  rule, 
to  testator's  death  and  construe  "or  their  legal  represen- 
tatives" (whether  meaning  executors  and  administra- 
tors, heirs  or  next  of  kin),  as  intended  to  prevent  the 
lapse  of  the  share  of  any  legatee  who  might  die  before 
the  time  for  distribution  should  arrive.  The  court  ad- 
mits that  the  words  must  have  been  given  that  meaning, 
if  all  the  legatees  had  died  before  the  date  of  the  life 
tenant's  death.  It  is  not  probable  that  the  testator  in- 
tended that,  if  none  of  the  legatees  should  live  to  share 
in  the  fund,  the  legal  representatives  of  all  should  take, 
but,  if  one  only  should  survive,  the  legal  repi*esentatives 
should  all  be  excluded.  We  think  the  construction 
adopted  by  the  auditor  was  in  accordance  with  testator's 
intention.  If  "surviving"  refers  to  the  death  of  the  life 
tenant,  as  was  held  by  the  court  below,  then  the  death 
of  Michael  Petrow  during  the  life  tenancy  would  have 
created  an  intestacy.  The  interpretation  placed  upon 
fhe  phrase  by  the  auditor  avoids  intestacy  and  secures 
equality  of  distribution  among  the  legatees.    We  think 


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94  FETROWS  ESTATE. 

Opinion  of  the  Court.  [269  Pa. 

the  testator  evidently  intended  that  the  proceeds  aris- 
ing from  the  sale  of  the  property  should  be  divided 
among  certain  persons,  who  were  definitely  determined 
by  his  will  as  construed  in  Fetrow's  Est.,  58  Pa.  424,  and 
the  legal  representatives  of  such  of  them  as  predeceased 
the  life  tenant. 

The  assignments  of  error  are  all  sustained,  the  decree 
of  the  court  below  is  reversed,  and  the  record  is  remitted 
that  distribution  may  be  made  in  accordance  with  the 
report  of  the  auditor. 


Bruggeman  et  al.  v.  City  of  York,  Appellant. 

Neglijence — Municipalities — Accumulation  of  filth  on  street  and 
sidewalk — Woman  sweeping  off  sidewalk — Pushing  of  wire  in  mud 
with  broom — Splashing  of  mud — Injury  to  eye — Proximate  cause — 
Court  and  jury — Judgment  for  defendant  n,  o.  v. 

1.  A  proximate  cause  is  one  which,  in  actual  sequence,  undis- 
turbed by  any  independent  cause,  produces  the  result  complained 
of.  A  prior  and  remote  cause  cannot  be  made  the  basis  of  an  ac- 
tion if  such  remote  cause  did  nothing  more  than  furnish  the  con- 
dition or  erive  rise  to  the  occasion  by  which  the  injury  was  made 
possible  if  there  intervened  between  such  prior  or  remote  cause 
and  the  injury  a  distinct,  successive,  unrelated  and  efficient  cause 
of  the  injury. 

2.  The  injury  must  be  the  natural  and  probable  consequence  of 
the  negligence;  such  a  consequence  as  under  the  circumstances 
might  and  ought  to  be  foreseen  by  the  wrongdoer  as  likely  to  flow 
from  his  acts. 

3.  The  facts  being  undisputed  the  question  of  proximate  cause 
is  for  the  court 

4.  In  an  action  against  a  municipality  to  recover  damages  for 
personal  injuries  it  appeared  that  the  defendant  had  raised  the 
grade  of  a  lot  causing  water  and  mud  to  overflow  plaintiff's  side- 
walk; that  plaintiff,  while  sweeping  off  the  sidewalk,  in  an  effort 
to  remove  a  coil  of  wire  which  had  become  lodged  in  the  pavement 
or  gutter  pushed  it  with  her  broom  so  that  it  sprang  back  and  sent 
a  splash  of  the  street  mud  into  her  eye,  causing  the  loss  of  the 
sight  thereof.    Held,  the  pushing  of  the  coiled  wire  and  not  the 


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BRUGGEMAN  et  al.  v.  CITY  OP  YORK,  Appel.      95 
1917.]  Syllabus— Arguments, 

presence  of  the  mu3  was  the  proximate  cause  of  the  accident  and 
judgment  was  entered  for  the  defendant  non  obstante  veredicto. 

Argued  May  15, 1917.  Appeal,  No.  129,  Jan.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  York  Co.,  August 
Term,  1914,  No.  125,  on  verdict  for  plaintiflE  in  case  of 
Mary  Ellen  Bruggeman  and  John  B.  Bruggeman  v.  City 
of  York.  Before  Beown,  C.  J.,  Pottee,  Stewart, 
MoscHziSKBE  and  Walling,  JJ.    Reversed. 

Trespass  for  personal  injuries.    Before  Ross,  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

Verdict  for  the  plaintiff  Mary  Ellen  Bruggeman  for 
|2,500  and  for  the  plaintiflE  John  B.  Bruggeman  for 
|100.     Defendant  appealed. 

Error  dssigned,  among  others,  was  in  refusing  defend- 
ant's motion  for  judgment  n.  o.  v. 

John  L.  Rouse^  City  Solicitor,  for  appellant. — It  is 
clear  that  the  existence  of  the  mud  of  itself  could  not 
have  caused  the  injury,  and  that  plaintiflf's  act  in  sweep- 
ing the  mud  in  and  by  itself  could  not  have  caused  it, 
and  the  muddy  condition  of  the  street  was  therefore  not 
the  proximate  cause  of  the  accident.  The  proximate 
cause  of  an  event  is  that  which  in  a  natural  and  continu- 
ous sequence  unbroken  by  any  new  cause  produces  the 
event:  Nirdlinger  v.  American  District  Telegraph  Co., 
245  Pa.  453;  Herr  v.  City  of  Lebanon,  149  Pa.  222; 
March  v.  Giles,  211  Pa.  17;  Swanson  v.  Crandall,  2  Pa. 
Superior  Ct.  85. 

Henry  C.  Niles,  with  him  Michael  8.  Niles,  Charles  A. 
May  and  George  E.  Neff,  for  appellees. — The  negligent 
accumulation  of  the  mud  was  the  proximate  cause  of 
plaintififs  injury :  Glasgow  v.  Altoona,  27  Pa.  Superior 
Ct.  55;   Fischer  v.  Sanford,  12  Pa.  Superior  Ct.  435. 

The  wrongful  act  and  its  injurious  eflfect  was  con- 
nected by  an  unbroken  and  continuous  succession  of 


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96     BBUGGEMAN  et  al.  v.  CITY  OF  YORK,  AppeL 

Arguments — Opinion  of  the  Court  [259  Pa. 

events:  Gudf elder  v.  Pittsburgh^  Cin.^  Chgo.  &  St.  Louis 
Ry.  Co.,  207  Pa.  629;  Thomas  v.  CJentral  R.  R.  Co.  of  N. 
J.,  194  Pa.  511;  King  v.  Lehigh  Val.  R.  R.  Ck).,  245  Pa. 
25;  Penna.  R.  R.  Co.  v.  Hope,  80  Pa.  373;  Sturgis  v. 
Kountz,  165  Pa.  358. 

Opinion  by  Mb.  Justice  Walling,  June  30, 1917: 
This  is  an  action  for  personal  injuries  resulting,  as 
alleged,  from  an  accumulation  of  filth  in  a  public  street 
In  1912,  defendant  city  built  the  Eagle  Engine  House 
on  a  lot  located  on  the  west  side  of  Jessop  Place,  between 
Jackson  street  and  Rose  alley  in  said  city,  and  in  so 
doing  raised  the  grade  of  the  lot,  and  to  make  a  conyen- 
ient  roadway  thereto  filled  up  the  brick  gutter  on  the 
north  side  of  the  property.  The  land  descended  to  the 
west  and  raising  the  grade  of  the  lot  and  stopping  up 
the  gutter  caused  the  water  in  wet  weather  to  overflow 
the  street  and  make  a  large  pool  sometimes  covering 
parts  of  the  adjoining  lots,  especially  plaintiffs'  lot  lo- 
cated on  the  northeast  corner  of  Jessop  Place  and  Rose 
alley.  The  gutter  extended  from  the  east  down  Rose 
alley  across  Jessop  Place,  and  seemed  to  be  in  the  na- 
ture of  an  open  sewer;  for  when  the  stagnant  water, 
caused  by  the  filling  of  the  lot  and  gutter  as  above  stated, 
would  evaporate,  germ  laden  filth  with  foul  odors 
would  be  there  found.  This  would  seem  to  have  consti- 
tuted a  nuisance,  which  the  defendant,  although  having 
notice,  failed  to  abate  until  after  the  occurrence  in  ques- 
tion. 

On  October  21,  1912,  the  plaintiff,  Mrs.  Bruggeman, 
took  a  broom  and  went  out  to  clean  up  some  of  the  filth 
so  deposited  in  the  alley  in  front  of  her  home,  and,  in  an 
effort  to  remove  a  coil  of  wire  which  had  become  lodged 
in  the  pavement  or  gutter,  she  pushed  it  with  the  broom 
so  that  it  sprang  back  and  in  so  doing  sent  a  splash  of 
the  street  mud  into  her  face  and  left  eye,  thereby  caus- 
ing, as  the  jury  found,  the  loss  of  the  sight  thereof.  There 
was  nothing  to  indicate  that  defendant  was  in  any  man- 


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BRUGGEMAN  et  al.  v.  CITY  OF  YORK,  Appel.      97 
1917.]  Opinion  of  the  Court. 

ner  respousiblc  for  the  presence  of  the  wire  in  the  street. 
The  trial  judge  submitted  the  ease  to  the  jury,  including 
the  questions  of  negligence,  proximate  cause,  etc.  The 
jury  found  for  the  plaintiffs  and  the  court  overruled  de- 
f^idant's  motion  for  judgment  non  obstante  Teredicto 
and  entered  judgment  on  the  verdict;  hence  this  appeal. 
In  our  opinion  defendants  motion  for  judgment 
should  have  been  granted  on  the  ground  that  the  negli- 
gence complained  of  was  not  the  proximate  cause  of 
plaintiff's  injury.  ^'A  proximate  cause,  in  the  law  of 
negligence,  is  such  a  cause  as  operates  to  produce  par- 
ticular consequences  without  the  intervention  of  any  in- 
dependent unforeseen  cause  without  which  the  injuries 
would  not  have  occurred":  21  American  and  English 
Encyclopedia  of  Law  (2  Ed.)  485.  *'A  proximate  cause 
is  one  which,  in  actual  sequence,  undisturbed  by  any  in- 
dependent cause,  produces  the  result  complained  of": 
Behling  v.  Southwest  Penna.  Pipe  Lines,  160  Pa.  359. 
**A  prior  and  remote  cause  cannot  be  made  the  basis  of 
an  action  if  such  remote  cause  did  nothing  more  than 
furnish  the  condition  or  give  rise  to  the  occasion  by 
which  the  injury  was  made  possible  if  there  intervened 
between  such  prior  or  remote  cause  and  the  injury  a  dis- 
tinct, successive,  unrelated,  and  efficient  cause  of  the  in- 
jury" :  29  Cyc.  496.  Here  the  foul  mud  in  the  street 
was  the  condition  and  perhaps  remote  cause  of  the  in- 
jury, but  the  coiled  wire  which  threw  the  mud  in  plain- 
tiff's face,  as  she  pushed  it  with  her  broom,  was  the  im- 
mediate, unrelated  and  intervening  cause  of  the  acci- 
dent. The  mud  was  passive,  the  active  agent  was  the 
wire  when  set  in  motion  by  the  broom,  and  aside  from  it 
the  accident  would  not  have  happened.  We  see  no  dif- 
ference in  principle  between  mud  being  thrown  by  a 
wire  and  fire  being  carried  by  water,  and  in  the  latter 
case  the  water  was  the  intervening  cause :  Hoag  &  Alger 
V.  Lak0  Shore  &  Michigan  Southern  R.  R.  Co.,  85  Pa. 
293 ;  as  was  the  fall  from  the  ladder,  and  not  the  ex- 
posed live  electric  wire,  in  Elliott  v.  Allegheny  County 

Vol.  ccux — 7 


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98      BRUGGEAIAN  et  al.  r.  CITY  OF  YORK,  Appel. 

Opinion  of  the  Court.  [259  Pa. 

Light  Co.,  204  Pa.  568;  and  as  was  the  breaking  of  the 
traces  and  not  the  want  of  a  guard  rail,  in  Willis  v. 
Armstrong  County,  183  Pa.  184.  Such  intervening 
cause  may  be  either  animate  or  inanimate ;  and  where 
two  distinct  causes  are  successive  and  unrelated  in  their 
operation,  one  of  them  must  be  the  proximate  and  the 
other  the  remote  cause :  Herr  v.  City  of  Lebanon,  149 
Pa.  .222.  The  act  of  a  child  may  be  the  proximate  cause : 
Bhad  V.  Duquesne  Light  Co.,  255  Pa.  409;  Swanson  v. 
Crandall,  2  Pa.  Superior  Ct.  85.  The  final  result  here 
cannot  be  said  to  be  the  natural  and  probable  result  of 
defendant's  negligence.  See  King  v.  Lehigh  Valley  B. 
B.  Co.,  245  Pa.  25. 

The  rule  is  well  settled  ^^that  the  injury  must  be  the 
natural  and  probable  consequence  of  the  negligence; 
such  a  consequence  as  under  the  surrounding  circum- 
stances of  the  case  might  and  ought  to  be  foreseen  by  the 
wrong  doer  as  lilcely  to  flow  from  his  acts" :  Swanson  v. 
Crandall,  supra.  Such  an  injury  as  is  here  com- 
plained of  could  not  be  foreseen  as  a  result  of  permitting 
mud  and  filth  to  remain  in  a  roadway ;  nor  could  it  be 
foreseen  that  any  personal  injury  would  result  there- 
from to  a  person  upon  the  sidewalk.  The  immediate 
cause  here  was  not  set  in  motion  by  the  original  wrcmg 
doer,  nor  was  it  the  result  of  an  unbroken  succession  of 
events,  or  of  concurring  causes. 

The  facts  being  undisputed  the  question  of  proximate 
cause  is  for  the  court :  Douglass  v.  N.  Y.  Central  &  Hud- 
son River  B.  B.  Co.,  209  Pa.  128;  South  Side  Pass.  By. 
Co.  V.  Trich  et  ux.,  117  Pa.  390.  We  do  not  deem  it  nec- 
essary to  decide  whether  a  municipality  is  liable  for  per- 
sonal injuries  resulting  from  the  unsanitary  condition 
of  its  streets. 

The  judgment  of  the  court  below  is  reversed  and  is 
here  entered  for  the  defendant 


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VANDERSLOOT  v.  PA.  W.  ft  P,  CO.,  Appellant.     99 
1917.]  Syllabus. 


Vandersloot  v.  Fennsylrania  Water  &  Power 
Company,  Appellant 

Equity  jurisdiction — Injury  to  real  estate  within  county — For^ 
eign  defendant — Leave  to  serve  outside  of  county — Acts  of  June 
IS,  18S6,  P.  L.  668;  March  11, 1866,  P.  L.  S88;  April  6, 1869,  P.  L. 
S89;  AprU  3, 190$,  P.  L.  139,  and  June  6, 1916,  P.  L.  8JfI— Equity 
Ride  10  —  Construction  of  dam  — Overflowing  of  waters  —  Dam 
partly  in  another  county — Bill  by  riparian  owner — Relief  affecting 
entire  dam — Relief  in  personam, 

1.  It  is  against  the  policy  of  the  jurisprudence  of  this  State  to 
bring  nonresidents  witiiin  the  jurisdiction  of  our  courts  unless  in 
veiy  special  cases,  and  the  Act  of  April  6,  1869,  P.  L.  389,  proTid- 
ing  that  any  court  having  equify  jurisdiction  may  upon  due  appli- 
cation authorize  service  outside  the  jurisdiction  of  the  court  in 

any  suit  ''concerning lands,  tenements  and  hereditaments 

situated  or  being  within  the  jurisdiction  of  such  court,'^  is 

to  be  construed  in  harmony  with  such  policy. 

2.  Service  of  a  bill  in  equity  outside  of  the  jurisdiction  of  the 
court  in  which  it  is  filed  cannot  properly  be  allowed  under  the 
authority  of  the  Act  of  1859,  where  the  prayers  for  relief  are  not 
confined  entirely  to  property  alleged  to  be  within  the  jurisdiction 
of  the  court,  and  where  the  relief,  if  granted,  would  require  a  de* 
cree  against  the  defendant  personally. 

3.  A  bill  in  equity  brought  in  York  County  against  a  Pennsyl- 
vania corporation  to  compel  the  removal  of  a  dam  which  was 
partly  in  York  County  and  partly  in  Lancaster  County,  and  which 
was  alleged  to  cause  waters  to  overflow  complainant's  land  in  York 
County,  was,  by  leave  of  the  York  County  court,  served  on  officers 
of  the  defendant  in  New  York,  where  the  company's  principal 
office  was  located,  and  in  Lancaster  County,  where  its  mills  were 
situated.  The  prayers  of  the  bill  comprehended  relief  affecting 
the  entire  dam  of  the  defendant,  and  also  relief  requiring  a  decree 
against  the  defendant  personally.  Held,  the  service  was  not  within 
the  authority  of  the  Act  of  1859,  or  other  statutoiy  authority*  and 
a  rule  to  set  it  aside  should  have  been  made  absolute. 

4.  In  such  case  there  was  no  merit  in  the  contention  that  ihe 
service  was  authorized  under  Equity  Bule  10,  which  merely  pro- 
vides that  "service  of  the  biU  and  notice  to  appear  and  answer  on 
a-  corporation  shall  be  effected  in  the  mode  prescribed  by  law  for 
the  service  of  a  writ  of  summons  upon  such  corporation."    The 


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100  YANDERSLOOT  v;  PA.  W.  &  P.  CO.,  Appellant. 

Syllabus — ^Arguments.  [259  Pa. 

Acts  of  June  13,  1836,  P.  L.  568;  March  17, 1856,  P.  L.  388;  April 
3, 1903,  P.  L.  139,  and  June  5,  1915,  P.  L.  847,  do  not  apply. 

Practice,  Supreme  Court  end  C.  P. — Appeal  from  order  refusing 
to  set  aside  service — Conditional  appearance-^Waiver  hy  defense 
on  merits. 

5.  In  such  case  the  defendant  may  appeal  from  an  order  refusing 
to  set  aside  the  service  where  it  has  entered  a  conditional  appear- 
ance  for  the  purpose  of  taking  such  rule,  or  may  defend  the  action 
on  its  merits.  He  is  required  to  select  one  of  the  two  courses, 
and  is  bound  by  the  legal  consequences  of  the  course  selected. 

Argued  May  15, 1917.  Appeal,  No,  132,  Jan.  T.,  1917, 
by  defendant,  from  decree  of  C.  P.  York  Co.,  Oct.  T., 
1916,  No.  1,  refusing  to  set  aside  service  of  bill  in  equity 
in  case  of  John  Edward  Vandersloot  v.  Pennsylvania 
Water  &  Power  Company.  Before  Brown,  C.  J.,  Pot- 
ter, Stbwart,  Moschzisker  and  Walling,  JJ.  Be- 
versed. 

Bule  to. set  aside  service  of  bill  in  equity.  Before 
Boss,  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

The  lower  court  dismissed  plaintiff's  rule  to  set  aside 
the  service  of  the  bill.    Defendant  appealed. 

Error  oMigned  was  the  decree  of  the  court 

J.  E.  Malane,  with  him  Stewart  d  Oerher,  for  appel- 
lant.— The  ordinary  jurisdiction  of  a  court  of  equity  is 
confined  to  the  county  unless  such  jurisdiction  is  en- 
larged by  statute :  Hays  v.  Penna.  B.  B.  Co.,  17  Pa.  9. 

A  bill  to  be  within  the  purview  of  the  Act  of  1859 
must  be  confined,  at  least  so  far  as  the  nonresident  de- 
fendant is  concerned^  to  a  prayer  for  a  decree  affecting 
only  the  property  within  the  jurisdiction  of  the  court: 
feschbach  y.  Slonaker  &  Krause,  1  Pa.  t>.  R.  32. 

The  Act  of  1859  is  ineffectual  to  render  valid  extra- 
territorial service  of  process  in  proceedings  in  personam.: 
Wallace  V.  United  Electric  Co.,  211  Pa.  478. 


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VANDERSLOOT  v.  PA,  W.  &  P.  CO.,  Appellant.  101 
1917.]  Argumenta — Opinion  of  the  Court 

Defaidant's  <)am  being  located  in  another  county  the 
present  case  is  not  one  coneerninK  lands  within  the  ju- 
risdiction of  the  court,  so  as  to  authorize  service  upon 
a  nonresident  of  the  county  under  the  Act  of  1859: 
Mengel  y.  Lehigh  Ck>al  &  Nayigati<m  Co.,  24  Pa.  C.  G. 
152. 

Henry  C.  Niles,  with  him  Michael  8.  Niles,  Charles  A. 
May  and  George  E.  Neff,  for  appellees. — ^In  testing  the 
propriety  of  an  order  and  service  of  process  under  the 
Act  of  1859^  the  allegations  of  the  bill  are  to  be  consid- 
ered: Vail  V.  Osburn,  174  Pa.  580;  Martin's  App.,  13 
W.  N.  C.  167. 

Service  on  the  defendant  in  New  York  was  proper: 
Eby's  App.,  70  Pa.  311;  Coleman's  App.,  75  Pa.  441; 
Mengel  v.  Lehigh  Coal  &  Navigation  Co.,  24  Pa.  C.  C. 
152;  Martin's  App.,  13  W.  N.  C.  167. 

Service  at  defendant's  office  in  Lancaster  County  was 
proper:  Bailey  v.  Williamsport  &  North  Branch  R.  R. 
Co.,  174  Pa.  114 ;  Rule  10  Supreme  Court  Equity  Rules. 

Opinion  by  Mr.  Justicb  Moschziskbr,  June  30, 1917: 
The  defendant,  a  corporation  under  the  laws  of  Penn- 
sylvania, possesses  and  operates  a  dam  across  the  Sus- 
quehanna river.  The  plaintiff  filed  a  bill  in  equity,  al- 
leging that  this  obstruction  backs  the  water  upon  cer- 
tain property  owned  by  him  in  York  County,  where,  he 
averred,  one  end  of  the  dam  is  located.  The  bill  prayed, 
(1)  That  defendant  be  ordered  to  remove  the  dam  and 
certain  obstructions  connected  therewith,  ^^or  such,  parts 
thereof  as  shall  allow  the  water  of  said  river  to  flow  and 
run  in  its  usual  and  natural  course as  it  did  be- 
fore the  erection,  maintenance  and  operation  of  said 
dam,  structures  and  works  of  the  defendant" ;  (2)  That 
defendant  be  restrained  from  increasing  the  height  of 
its  dam;  (3)  ^^That  def^idant  be  enjoined  from  main- 
taining and  operating  its  said  dam  and  works  or  other 
obstructions  in  said  river in  such  manner  as  shall 


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102  VANDERSLOOT  v.  PA.  W.  &  P.  CO.,  Appellant. 

Opinion  of  the  Court  [259  Pa. 

cause  the  water  thereof  to  back  and  overflow  the  prop- 
erty of  the  plaintifT';  (4)  "That  defendant  be  perpetu- 
ally enjoined  from  placing  and  maintaining  any  dam, 

structure  or  works as  shall  increase  the  depth  of 

the  water thrown  or  flowing  upon  plaintiff's  said 

property" ;  (5-7)  That  defendant  be  enjoined  from  floods 
ing  certain  roads^  tow-paths^  banks,  etc.,  claimed  to  be 
the  property  of  plaintiff;  (8)  That  an  account  be  taken 
of  the  damages  suffered  by  plaintiff,  and  defendant  be 
"decreed  to  pay  the  same";  (9-11)  "Discovery,  gei^ral 
relief,"  etc. 

The  defendant's  mill  and  works  are  located  in  Lan- 
caster County,  where  it  maintains  an  office;  but  its 
headquarters  are  in  New  York  City.  On  the  day  the 
bill  was  filed,  plaintiff  petitioned  for  an  order  allowing 
service  on  defendant  outside  the  jurisdiction  of  the  Com- 
mon Pleas  of  York  County;  whereupon  the  court  below 

decreed  "that  service  of  the  bill  be  made  upon the 

defendant  in  the  manner  directed  by  the  Act  of  April 
6,  1859."  The  sheriff  returned  that  he  had  made  such 
service  on  the  president  and  secretary  of  the  corporation 
at  its  office  in  New  York  City.  On  September  13, 1916, 
the  sheriff  of  York  County  deputized  the  like  officer  of 
Lancaster  County  to  make  service  in  the  tetter's  juris- 
diction ;  and,  on  September  16, 1916,  the  last  mentioned 
sheriff  made  return  that  he  had  served  the  bill,  etc.,  on 
"the  agent  of  defendant  and  the  person  for  the  time  be- 
ing in  charge  of  its  office"  in  Lancaster  County.  Sep- 
tember 28,  1916,  counsel  for  defendant  entered  lin  ap- 
pearance de  bene  esse,  for  the  purpose  of  attacking  these 
two  returns.  The  court  below  dismissed  a  motion  to  set 
aside  the  service,  stating,  inter  alia,  "the  plaintiff's  bill 
contains  the  only  facts  upon  which  the  court  can  yet 
rely;  and  an  inspection  thereof  clearly  reveals  a  suffi- 
cient Subject-matter  within  the  jurisdiction  of  this  court 
to  warrant  the  court  in  authorising  process  of  service 
on  the  defendant  in  accordance  with  the  provisiong  of 
the  Act  of  April  6,  1859,  P.  L.  389,  Sec.  1 It 


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VANDERSLOOT  v.  PA.  W.  &  P.  CO.,  Appellant.  103 
1917.]  Opinion  of  the  Court. 

might  be  that  facts  or  matters  would  be  revealed  by 
regular  and  legal  investigation  which  would  render  the 

jurisdiction  of  this  court  nugatory;    but,  until 

properly  shown,  we  cannot  assume that  any  such 

conditions  exist/'    The  defendant  has  appealed. 

The  Act  of  1859,  supra,  provides  that  any  court  of  the 
Commonwealth  having  equity  jurisdiction  may  upon  due 
application  authorize  service  outside  the  jurisdiction  of 
such  court,  in  any  suit  "concerning lands,  tene- 
ments and  hereditaments situated  or  being  within 

the  jurisdiction  of  such  court '^    In  Coleman's 

App.,  75  Pa.  441,  443,  457,  458,  the  averments  of  the  bill 
related  to  property  both  within  and  outside  the  juris- 
diction of  the  court,  and  it  prayed,  (1)  That  a  certain 
company  defendant  "transfer  to  plaintiff  ninety-eight 
shares  of  its  stock"  (being  the  property  within  the  juris- 
diction) ;  (2)  That  one  Walton  D wight  (the  principal 
defendant)  account  and  pay  to  plaintiff  a  designated 
sum  of  money;  (3)  That  two  other  persons  be  made  de- 
fendants; (4)  General  relief.  The  court  below  set 
aside  service  upon  the  defendant  Dwight,  had  under  the 
Act  of  1859,  supra,  and  on  appeal  we  affirmed,  saying: 
"It  has  not  been  the  policy  of  our  jurisprudence  to  bring 
nonresidents  within  the  jurisdiction  of  our  courts  unless 
in  very  special  cases The  Act  of  1859  ought,  there- 
fore, to  receive  a  construction  in  harmony  with  this 
policy.  There  exists  no  good  reason  why  courts  of 
equity  should  be  invested  with  a  more  enlarged  jurisdic- 
tion against  nonresidents  than  courts  of  law.    On  the 

contrary the  inclination  should  be  in  a  different 

direction Had  the  bill  in  this  case  been  confined 

to  the  prayer  for  relief  as  to  the  ninety-eight  shares  of 
the  capital  stock  of  the  Williamsport  and  Canada  Lum- 
ber Company,  standing  upon  their  books  in  the  name  of 
the  defendant  Walton  Dwight,  there  would  be  plausible 
ground  upon  which  to  sustain  the  service  of  the  process 

upon  him We  are  of  opinion  that  the  bill  must  be 

confined,  at  least  so  far  as  the  interest  of  the  foreign  de- 


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104   VANDERSLOOT  v.  PA.  W.  &  P.  CO.,  Appellant. 

Opinion  of  the  Court.  [259  Pa. 
fendant  ia  involved,  to  a  prayer  for  a  decree  affecting 
only  the  property  in  question*  If  it  goes  further  and 
asks  for  relief  by  a  decree  against  the  defendant,  per- 
sonally,   it  is  not  a  case  within  the  purview  of  the 

act,  and  the  court  has  no  authority  to  direct  service  of 
process  upon  the  defendant." 

In  the  case  at  bar,  it  will  be  observed  that  the  prayers 
for  relief  are  not  confined  to  property  alleged  to  be 
within  the  jurisdiction  of  the  court;  but,  on  the  con- 
trary, they  comprehend  relief  affecting  the  entire  dam 
of  defendant,  extending  into  the  river  beyond  the  limits 
of  York  County,  and  also  relief  which,  if  granted,  would 
require  a  decree  against  the  defendant  personally.  On 
this  state  of  facts,  under  the  authority  just  cited,  the 
present  is  not  a  case  for  service  in  accordance  with  the 
Act  of  1859,  supra ;  and  the  court  below  erred  when  it 
determined  otherwise. 

The  plaintiff  contends,  however,  that,  since  our  equity 
Rule  10  provides  that  "service  of  the  bill,  and  notice  to 
appear  and  answer,  on  a  cori>oration  shall  be  effected  in 
the  mode  prescribed  by  law  for  the  service  of  a  writ  of 
summons  upon  such  corporation/^  the  service  by  the 
deputized  sheriff  of  Lancaster  County  is  good  and  suf- 
ficient in  this  case,  without  regard  to  that  had  under  the 
Act  of  1859  (citing  Sec.  42  of  the  Act  of  June  13,  1836, 
P.  L.  568;  Act  of  March  17,  1856,  P.  L.  388;  Act  of 
July  9,  1901,  P.  L.  614,  as  amended  by  the  Act  of  April 
3,  1903,  P.  L.  139;  and  the  Act  of  June  5,  1915,  P.  L. 
847) ;  but  there  is  nothing  in  Rule  10,  or  any  of  the  acts 
of  assembly  relied  upon  by  plaintiff,  which  confers  the 
right  upon  a  court  in  equity  to  bring  a  corporation, 
which  otherwise  would  be  without  its  jurisdiction,  with- 
in the  grasp  of  its  process,  so  as  to  subject  such  defend- 
ant to  a  decree  in  personam  or  one  affecting  its  property 
located  in  another  county.  We  have  examined  the  cases 
cited  by  plaintiff,  but  none  of  them  supports  the  order 
appealed  from. 

The  question  of  the  right  to  take  the  present  appeal 


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VANDERSLOOT  v.  PA.  W.  &  P.  CO.,  Appellant.  105 
1917.]  Opinion  of  the  Court. 
was  also  argued  before  us.  In  McCuUough  v.  Railway 
Mail  Asso.,  225  Pa.  118,  124,  123,  a  rule  to  set  aside 
service  of  a  summons  was  discharged;  whereupon  de- 
fendant went  to  trial.  The  verdict  favored  plaintiff, 
and  defendant  appe&led,  assigning  as  error,  inter  alia, 
the  discharge  of  the  before-mentioned  rule ;  but  w^e  said : 
"The  defendant  association  entered  a  conditional  ap- 
pearance for  the  purpose  of  moving  to  set  aside  the  serv- 
ice of  the  summons After  the  court  had  refused 

the  motion,  the  association entered  a  plea  in  the 

case;  this  action  must  be  regarded  as a  waiver  of 

any  irregularity  or  insufficiency  in  the  service  of  the 
writ."  While  we  dismissed  the  assignment  in  question, 
as  not  calling  for  an  actual  ruling  upon  the  situation 
which  it  sought  to  bring  before  us,  yet  we  discussed  at 
large  the  principles  of  law  and  practice  involved;  and 
during  the  course  of  that  discussion  we  held  that,  if  a 
defendant's  motion  to  set  aside  the  service  of  the  writ 
against  him  be  refused,  "he  may  rely  upon  the  position 
he  has  taken  and  attempt  to  sustain  it  by  an  appeal  to 
the  proper  appellate  court,  or  he  may  consider  himself 
in  court  and  defend  the  action  on  its  merits,"  adding, 
"He  is  required  to  select  one  of  the  two  courses,  and 
having  done  so  he  must  accept  the  legal  consequences  of 
his  action.  He  cannot  deny  the  jurisdiction  of  the  court, 
and  at  the  same  time  take  such  action  to  defeat  the 
plaintiff's  claim  as  will  amount  to  an  appearance." 
Under  this  authority,  which  is  our  latest  utterance  upon 
the  subject,  the  defendant  had  a  right  to  appeal  from 
the  order  here  complained  of. 

If  the  procedure  determined  upon  by  the  court  below 
were  followed,  and  this  case  set  for  trial  on  the  merits, 
so  that,  incidentally,  it  might  be  ascertained  whether 
facts  would  develop  "which  would  render  the  jurisdic- 
tion of  the  court  nugatory,"  then,  under  the  principles 
laid  down  in  McCuUough  v.  Railway  Mail  Asso.,  supra, 
if  the  defendant  should  appear  and  defend,  it  would  be 
in  court  for  all  purposes,  and  a  decree  in  personam  could 


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106  VANDERSLOOT  v.  PA.  W.  &  P.  CO.,  AppelUi^t. 

Opinion  of  the  Court.  [259  Pa. 

be  entered  agiaiust  it;  which  decree  would  be  enforciWe 
by  proceedings  in  contempt,  despite  the  provisions  of 
Section  3,  Act  of  1859,  supra,  that  no  such  process 
should  issue  thereunder.  The  learned  court  below  fell 
into  error  by  relying  exclusively  upon  the  averments  of 
the  bill,  and  failing  to  take  into  account  the  controlling 
importance  of  the  prayers  for  relief  (Coleman^s  App., 
supra) ;  when  the  latter  are  kept  in  mind,  without  the 
need  for  further  light  upon  the  subject,  it  becomes  clear 
that  the  attempt  to  secure  jurisdiction  under  the  Act  of 
1859  was  "nugatory,^'  and  that  the  rule  to  avoid  the  serv- 
ice made  upon  defendant  should  have  prevailed. 

The  assignment  of  error  is  sustained,  the  order  of  the 
court  below  reversed,  and  service  of  the  bill  set  aside; 
appellee  to  pay  the  costs. 


Corbin  et  al.  v.  Millers  Mutual  Fire  Insurance 
Company  of  Harrisburg,  Penna.,  Appellant. 

Fire  insurance — Application — Answers  to  questions — Misrepre- 
sentations— Flour  mill — Character  of  power  used — Inspection  — 
Breach  of  warranty — Estoppel — Judgment  for  defendant  n.  o.  v. 

1.  In  an  action  on  a  fire  insurance  policy  covering  a  flour  mill 
operated  by  water  power  with  a  gasoline  engine  as  auxiliary 
power,  a  verdict  should  have  been  directed  for  the  defendant  where 
it  appeared  that  to  specific  questions  in  the  application  plaintiff 
answered  that  only  water  power  was  used;  that  while  defendanVa 
secretary  actually  inspected  the  premises  and  saw  the  gasoline 
engine  the  application  was  not  received  by  him  imtil  several  months 
thereafter,  and  that  before  the  policy  was  issued  he  communicated 
with  the  plaintiff  stating  that  an  additional  rate  was  chargeable 
if  gasoline  power  was  also  employed,  and  that  with  full  knowledge 
of  the  difference  in  the  rates  plaintiff  remitted  the  premium 
chargeable  if  water  power  only  was  used. 

2.  In  such  case  the  company  was  justified  in  inferring  from  ap* 
plicant's  written  declaration  and  from  the  payment  of  the  lower 
premium  that  only  water  power  was  used,  that  plaintiff  intended 
to  represent  that  the  use  of  the  gasoline  engine  in  operation  at 
the  time  of  the  inspection  by  defendant's  secretary  had  been  aban- 


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CORBIN  et  al.  v.  MILLERS  M.  P.  INS.  CO.,  AppeL  107 
1917.]  Syllabus— Arguments. 

doned»  and  defendant  was  not  estopped  by  reason  of  such  inspec- 
tion from  setting  up  the  breach  of  warranty  of  the  truth  of  plain- 
tiff's answers  to  the  questions  in  the  application. 

Argued  May  15, 1917.  Appeal,  No.  251,  Jan.  T.,  1916, 
by  defendant,  from  judgment  of  C.  P.  Mifflin  Co.,  May 
T.,  1915,  No.  107,  on  verdict  for  plaintiflfs  in  case  of  C. 
6.  Corbin  and  B.  M.  Sassaman  trading  as  High  Falls 
Milling  Company  v.  Millers  Mutual  Fire  Insurance  Com- 
pany of  Harrisburg,  Pennsylvania.  Before  Brown,  C. 
J.,  Potter,  Stewart,  Moschziskbr  and  Walling,  JJ. 
Reversed. 

Assumpsit  on  a  fire  insurance  policy.  Before  Bailey, 
P.J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

Verdict  for  plaintiff  for  ?3,714.08  and  judgment  there- 
cm.    Defendant  appealed. 

Errors  assigned,  among  others,  were  in  refusing  to  di- 
rect a  verdict  for  defendant  (2),  and  in  refusing  defend- 
ant's motion  for  judgment  n.  o.  v.  (4). 

Ruftts  C.  Elder,  for  appellant — The  misrepresenta- 
tion as  to  the  character  of  the  power  used  in  plaintiff's 
mill  rendered  the  policy  void :  United  Brethren  Mutual 
Aid  Society  of  Penna.  v.  White,  100  Pa.  12;  Wall  v. 
Boyal  Society  of  Good  Fellows,  179  Pa.  355;  Bloomiiig 
Grove  Mutual  Fire  Ins.  Co.  v.  McAnerney,  102  Pa.  335; 
Home  Mutual  Life  Association  of  Penna.  v.  Gillespi^ 
110  Pa.  84;  Smith  v.  Northwestern  Mutual  Life  Ins. 
Co.,  196  Pa.  314 ;  Commonwealth  Mutual  Fire  Ins.  Co. 
V.  Huntzinger,  98  Pa.  41;  March  v.  Metropolitan  Life 
Insurance  Co.,  186  Pa.  629. 

A.  Reed  Hayes,  with  him  L.  J.  DurUn,  for  appellees.-^ 
Where  at  the  time  of  the  issuing  of  an  insurance  policy 
the  company  knows  or  should  have  known  that  one  c^ 


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108  CORBIN  et  al.  v.  MILLERS  M.  P.  INS.  CO.,  Appel. 
Argiuncnts — Opinion  of  the  Court.  [259  Pa. 

the  conditions  is  inconsistent  with  the  facts^  and  the  in- 
sured has  been  guilty  of  no  fraud,  the  company  is 
estopped  from  setting  up  the  breach  of  such  condition : 
Caldwell  v.  Fire  Association  of  Philadelphia,  177  Pa. 
492;  Bateman  v.  Lumberman's  Ins.  Co.,  189  Pa.  465; 
Damms  t.  Humboldt  Fire  Ins.  Co.,  226  Pa.  358;  Clymer 
Opera  Co.  v.  Flood  Mutual  Fire  Ins.  Co.,  238  Pa.  137; 
Central  Market  St.  Co.  v.  North  British  &  Mercantile 
Ins.  Co.  of  London,  245  Pa.  272. 

Opinion  by  Ma.  Justice  Pottee,  June  30, 1917: 
In  this  action  of  assumpsit  the  plaintiflb  sought  to  re- 
cover upon  a  policy  of  fire  insurance.  The  defense  was 
breach  of  warranty.  The  written  application  for  insur- 
ance, presented  by  plaintiffs,  contained  the  following 
questions :  "Is  steam  power,  water  power,  or  what  other 
power  is  used?"  This  was  answered,  ** Water."  "If 
gasoline  power  is  used,  then  describe  the  location  of  the 
engine,  gasoline  storage  tank,  spark  igniter,  etc."  No 
answer  was  made  to  this  question.  The  application  con- 
tained a  warranty  of  the  truth  of  the  answers  to  all 
questions  and  an  agreement  that  they  should  be  incor- 
porated in  and  form  part  of  the  policy  to  be  issued.  In 
addition  it  was  provided  that  the  company  should  not 
be  bound  by  any  act  or  statement  of  its  agent,  or  any 
statement  to  such  agent,  restricting  or  waiving  its  rights 
or  varying  the  written  contract,  unless  it  was  inserted 
in  the  application,  endorsed  on  the  policy  or  otherwise 
acknowledged  in  writing  by  the  company's  secretary. 
The  property  insui'ed  was  a  flouring  mill  operated  by 
water  power,  with  a  sixteen-horse  power  gasoline  engine 
as  auxiliary  power.  It  appeared  from  the  evidence  that 
the  gasoline  engine  was  used  to  a  considerable  extent 
after  the  insurance  was  obtained,  and  that  it  was  oper- 
ated until  eleven  o^clock  on  the  evening  before  the  fire, 
which  occurred  at  two  o'clock  in  the  morning.  The  loss 
admittedly  exceeded  the  amount  of  the  insurance.  It 
was  shown  that  in  February,  1014,  more  than  three 


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CORBIN  et  al.  v.  MILLERS  M.  P.  INS.  CO.,  Appcl.  109 
1917.]  Opiniou  of  the  Court. 

months  before  the  insurance  was  actually  placed,  the 
secretary  of  defendant  compatiy  visited  the  mill  at  the 
i-equest  of  plaintiffs  with  reference  to  placing  fire  insur- 
ance thereon.  At  that  time  he  saw  that  there  was  a 
gasoline  engine  in  the  mill.  After  examining  the  prop- 
erty he  left  an  application  blank  with  plaintiffs,  and 
gave  them  the  rates,  one  being  for  water  power  only,  and 
the  other  an  increased  rate  for  water  power  and  gaso- 
line. 

More  than  three  months  later,  on  June  5, 1914,  plain- 
tiffs sent,  to  the  office  of  the  defendant  company,  the  ap- 
plication for  insurance  referred  to  above.  It  was  not  ac- 
companied by  a  check,  and  the  secretary  replied  to  plain- 
tiffs on  June  9, 1914,  in  part  as  follows :  "From  the  fact 
that  so  much  time  intervened  between  my  visit  to  the 
mill  and  the  filing  of  the  application  for  insurance,  I 
really  forget  the  basis  rate  which  I  named  while  on  the 
premises.  I  am  inclined  to  believe,  however,  that  it  was 
$4.50,  and  that  you  had  auxiliary  power,  either  gasoline 
or  steam,  while  in  the  application  you  make  no  mention 
of  any  but  water  power.  Therefore,  will  say  that  if 
there  is  no  other  than  water  power,  we  would  be  willing 
to  write  the  insurance  on  the  basis  of  a  cash  deposit  or 
f20  per  one  thousand  dollars  insurance  and  an  actual 
cost  of  approximately  f  18  per  one  thousand  dollars  of 
insurance.  A  by-law  of  the  company  stipulates  for  pre- 
payment, therefore  you  should  remit  the  amount  of  the 
deposit  along  with  your  answer." 

The  premium  for  the  amount  of  insurance  requested, 
at  the  rate  named  in  case  water  power  only  was  used, 
was  |740  for  the  period  of  five  years.  If  in  addition 
gasoline  power  was  used,  the  premium  would  have  been 
JP832.50.  According  to  the  by-laws,  a  cash  deposit  of  ten 
per  cent,  of  the  premium  was  required.  With  full 
knowledge  of  the  difference  in  the  rates,  the  plaintiffs  in 
reply  sent  a  check  for  |75,  being  one  dollar  more  than 
the  afnount  of  the  deposit  required  for  the  premium  for 
the  use  of  water  power  alone.    Defendant  then  sent 


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110  CORBIN  ct  al.  v.  MILLERS  M.  F.  INS.  CO.,  Appel. 
Opinion  of  the  Court.  [259  Pa. 

them  the  policy,  and  a  check  for  one  dollari  the  excess  of 
the  cash  deposit 

That  thei*e  was  a  misrepresentation  as  to  the  use  of 
water  power  only  is  admitted.  But  the  trial  judge  was 
of  opinion  that  the  receipt  of  the  insurance  premium 
by  the  defendant  after 'its  secretary  had  seen  the  prop- 
erty,  and  noted  the  equipment,  was  sufficient  to  estop 
the  defendant  from  setting  up  the  breach  of  warranty. 
We  cannot  agree  with  this  conclusion.  It  is  true  that 
in  February  the  secretary  saw  that  the  mill  was 
equipped  with  both  water  power  and  gasoline  enginci 
and  that  he  then  stated  the  rates  for  the  use  of  one  or 
both  powers.  But  nothing  was  done  with  respect  to  the 
insurance  until  June,  and  when  the  application  then 
came  in  stating  that  water  power  alone  was  in  use,  the 
secretary  replied  by  letter,  and  called  attention  to  that 
fact,  and  stated  his  recollection  that  applicants  had  been 
using  auxiliary  power,  either  steam  or  gasoline,  and  re- 
minded them  that  the  lower  rate  was  based  upon  the  use 
of  watef  power  alone.  Yet  in  the  face  of  this  plain  re- 
minder plaintiffs  adhered  to  their  statement  that  water 
power  alone  was  in  use.  It  was  not  the  equipment  with 
the  gasoline  engine  that  increased  the  hazard,  but  it  was 
the  use  of  that  engine  and  the  accompanying  storage  of 
gasoline  as  fuel  for  the  engine  upon  the  premises  that 
enlarged  the  risk.  The  secretary  may  very  well  have 
concluded  that  when  applicants  .stated  in  writing  that 
water  power  only  was  used,  they  intended  to  say  that 
the  use  of  the  gasoline  engine  had  been  abandoned. 
That  was  the  only  reasonable  or  natural  inference  to  be 
drawn  from  the  statement.  The  use  of  the  power  was 
entirely  within  plaintiffs'  control.  They  were  not  bound 
to  continue  the  use  of  both  water  power  and  gasoline 
power.  They  could  discontinue  the  use  of  either  at  any 
time,  and  the  defendant  was  not  bound  to  discredit  the 
statement  made  by  applicants  as  to  the  character  of  the 
power  in  use  some  three  months  after  the  date  of  tlie 
inspection  of  the  premises  by  defendant's  secretary. 


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CORBIN  et  al.  v.  MILLERS  M.  E.  INS.  CO,,  Appel.  Ill 
1917.]  Opinion  of  the  Court. 

We  can  see  in  the  evidence  no  basis  for  the  conclusion 
that  the  company  accepted  the  application  for  insur- 
ance,  knowing  at  the  time  that  the  conditions  were  not 
as  they  were  then  represented  to  be  by  the  plaintifh. 
The  attention  of  the  applicants  was  called  directly  to 
the  fact  that  an  increased  rate  was  required  if  gasoline 
power  was  used,  and  they  were  given  the  choice  of  the 
two  rates,  one  conditioned  upon  the  use  of  water  power 
alon^  and  the  other  for  the  use  of  both  water  power  and 
the  gasoline  engine. 

Possessed  of  this  knowledge,  they  allowed  their  state- 
ment to  stand  that  water  power  only  was  to  be  used, 
and  accepted  the  lower  rate  of  insurance  applying  to  the 
use  of  that  power  alone,  and  paid  the  appropriate  pre- 
mium. This  action  upon  their  part,  if  taken  in  good 
faith,  could  only  be  reconciled  with  an  intention  to  make 
no  further  use  of  gasoline  for  auxiliary  power.  We  find 
nothing  in  the  testimony  to  indicate  that  defendant  did 
not  implicitly  rely  upon  the  warranty.  On  the  con- 
trary, the  letter  of  the  secretary  plainly  shows  that  it 
did  rely  upon  it.  Defendant  said,  ^'if  there  is  no  other 
than  water  power/'  etc.,  it  would  write  the  insurance  at 
the  rate  given,  implying,  of  course,  that  the  use  of  the 
auxiliary  gasoline  power  should  be  abandoned.  The 
only  reasonable  inference  that  can  be  drawn  from  the 
testimony  is  that  there  was  a  wilful  misrepresentation 
in  the  application,  and  that  the  use  of  gasoline  power 
was  concealed  for  the  purpose  of  getting  the  insurance 
at  the  lower  rate,  which  applied  to  the  use  of  water 
power  alone.  Nor  are  we  able  to  find  anything  in  the 
evidence  which  would  warrant  the  inference  that  when 
the  defendant  company  received  the  premium  and  issued 
the  policy,  it  had  such  knowledge  of  the  misrepresenta- 
tion by  plaintiffs  as  would  estop  it  from  setting  up  the 
breach  of  warranty  by  way  of  defense. 

The  second  and  fourth  assignments  of  error  are  sus- 
tained, and  the  judgment  is  reversed,  and  is  here  entered 
for  the  defendant 


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112    McGLINTlC,  Aduir.,  v.  McCLINTlC,  Appellant. 

Syllabus — Assigumout  of  Error.  [250  Pa. 


McClintic,  Administrator,  v.  McClintic,  Appellant. 

WilU — Construction — Definite  failure  of  issue — Life  estate — ^e- 
mainders— "Lawful  heirs" — Ejectments-Act  of  April  IH,  1866,  P. 
L.  368. 

1.  A  limitation  over  by  will  to  per§ons  in  being,  after  the  death 
of  the  first  taker  without  issue,  raises-  a  strong  presumption  that 
the  testator  did  not  contemplate  an  indefinite  failure  of  issue. 

2.  Testator,  by  will,  provided,  '*I  give  to  my  son the  farm 

on  which  I  now  live and  if  he  should  not  have  any  lawful 

heirs,  then  after  his  death,  the  farm  to  be  sold  and  divided  equally 
between"  six  of  testator's  grandchildren.  The  son  had  two  chil- 
dren both  of  whom  predeceased  him.  He  devised  the  farm  to  his 
widow  in  fee,  and  after  his  death  testator's  administrator  d.  b.  n. 
c.  t.  a.  brought  an  action  of  ejectment  therefor.  Held,  (1)  the  first 
taker  took  only  a  life  estate,  and  (2)  the  gift  over  to  the  grand- 
children was  good,  and  a  verdict  was  prapetly  directed  for  the 
plaintiff. 

3.  In  such  case  there  was  no  merit  in  the  contention  that  the 
first  taker  took  an  estate  tail,  enlarged  by  Act  of  April  27,  1855, 
P.  L.  368,  into  a  fee  simple. 

Argued  May  15, 1917.  Appeal,  No.  45,  Jan.  T.,  1917, 
by  Ada  McClintic,  defendant,  from  judgment  of  C.  P. 
MiflSin  Co.,  August  T.,  1916,  No.  61,  on  directed  verdict 
for  plaintiff  in  case  of  Miles  R.  McClintic,  Administra- 
tor de  bonis  non  cum  testamento  annexo,  of  Felix  Mc- 
Clintic, Deceased,  v.  Ada  McClintic  and  Harry  Wagner. 
Before  Beown,  C.  J.,  Potter,  Stbwaet,  Moschzisker 
and  Walung,  J  J.    Affirmed. 

Ejectment  for  the  recovery  of  land  in  Mifflin  County. 
Before  Baileyj  P.  J. 

The  opinion  of  the  Supreme  Court  states  the  case. 

On  the  trial  the  court  directed  a  verdict  for  tlie  plain* 
tiff.    Defendant  appealed. 

Error  asiigned  was  in  refuaing  defendant's  motion  for 
judgment  n.  o.  V. 


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McCLrlNTIC,  Admr.,  v.  McCLINTIC,  Appellant.  113 
1917.]  Arguments — Opinion  of  the  Court. 

L.  J.  Durbin,  with  him  A.  Reed  Hayes,  for  appellant. 
— ^The  first  taker  took  an  estate  tail,  enlarged  to  a  fee 
simple  by  the  provisions  of  the  Act  of  April  27,  1855,  P. 
L.  368;  Eichelberger  v.  Barnitz,  9  Watts  447;  Vaughn 
V.  Dickes,  20  Pa.  509;  Hill  v.  Hill,  74  Pa,  173. 

An  indefinite  failure  of  issue  is  to  be  presumed  unless 
there  is  something  in  the  will  to  indicate  that  the  tes- 
tator meant  a  definite  failure :  Carroll  v.  Burns,  108  Pa. 
386;  Nes  v.  Ramsay,  155  Pa.  628;  Lewis  v.  Link  Belt 
Co.,  222  Pa.  139;  Hackney  v.  Tracy,  137  Pa.  53. 

In  case  of  a  doubtful  construction  the  law  leans  in 
favor  of  an  absolute  rather  than  a  defeasible  estate: 
Smith's  App.,  23  Pa.  9;  Jackson's  Est,  179  Pa.  77; 
Carter's  Est,  254  Pa.  539. 

Rufus  C.  Elder,  for  appellee. — By  "lawful  heirs"  tes- 
tator meant  issue:  Amelong  v.  Dorneyer,  16  S.  &  B. 
323;  Braden  v.  Cannon,  24  Pa.  168;  Wall  v.  Maguire, 
24  Pa.  248;  Covert  v.  Robinson,  46  Pa.  274;  Moody  v. 
Snell,  81  Pa.  359;  Cochran  v.  Cochran,  127  Pa.  38;  Sey- 
bert  V.  Hibbert,  5  Pa.  Superior  Ct.  537. 

The  estate  devised  to  the  first  taker  was  not  a  fee  tail, 
enlarged  by  the  act  of  assembly  to  a  fee :  Eichelberger 
V.  Barnitz,  9  Watts  447;  Jessup  v.  Smuch,  16  Pa.  327; 
Middleswarth's  Administrator  v.  Blackmore  et  aL,  74 
Pa.  414. 

Opinion  by  Mb.  Justice  Pottbb,  June  30, 1917 : 
In  this  action  of  ejectment,  the  common  source  of 
title  was  Felix  McClmtic.  He  died  on  October  6,  1883, 
and  in  his  last  will  provided  as  follows:  "Seventh:  I 
give  my  son,  Andrew  P.,  the  farm  on  which  I  now  live 
at  eight  thousand  (|8,000)  dollars,  and  if  he  should  not 
have  any  lawful  heirs,  then  after  his  death,  the  farm  to 
be  sold  and  divided  equally  between  my  son  William 
three  oldest  children  and  my  son  Hugh  three  oldest  chil- 
dren, and  if  any  one  of  them  should  die  before  the  prop- 
erty is  divided,  the  balance  to  have  it  and  out  of  this 
Vol.  ccux — 8 


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114    McCLINTIC,  Admr.,  v.  McCLINTIC,  AppcUant. 

Opinion  of  the  Court.  [259  Pa. 

property,  the  wife  of  my  son,  Andrew  P.,  shall  have  one 
hundred  (flOO)  dollai*s  each  year  from  the  death  of  her 
husband,  Andrew  F.  McClintic,  provided  she  sliall  re- 
main his  widow." 

Upon  the  death  of  his  father,  Andrew  F.  McOlintic 
took  possession  of  the  farm,  and  occupied  it  in  person  or 
by  tenants  until  his  death  on  September  26,  1915.  He 
had  two  sons,  both  of  whom  died  in  the  lifetime  of  their 
father  so  that  Andrew  P.  McClintic  died  without  living 
issue.  His  wife,  Ada  P.  McClintic,  survived  him,  and 
under  his  will  claims  title  to  the  farm. 

Upon  the  trial,  the  court  below  directed  a  verdict  for 
the  plaintiff,  holding  that  under  the  clause  of  the  will  in 
question  Andrew  P.  McClintic  took  an  estate  in  fee  de- 
terminable at  his  death  without  issue  surviving  him. 

Obviously  the  words  "lawful  heirs"  as  used  by  the  tes- 
tator could  only  mean  issue,  since  the  devise  over  was  to 
persons  who  would  be  included  in  the  general  term  heirs. 
We  also  agree  that  the  conclusion  that  the  mere  birth  of 
issue  was  suflBcient  to  vest  the  estate  absolutely  in  An- 
drew was  properly  rejected.  As  the  trial  judge  well 
says,  "If  the  testator  had  in  mind  nothing  further  than 
the  birth  of  issue,  considering  the  nature  of  the  language 
as  used  throughout  the  will,  he  would  have  adopted  lan- 
guage in  substance  as  follows:  if  my  son  Andrew  F. 
have  lawful  heirs  then  after  the  death  of  my  said  son  the 
farm  is  to  go  to  them.  The  thought  would  have  been 
positive  instead  of  negative  as  in  McCiillough  v.  John- 
etta  Coal  Co.,  210  Pa.  222." 

The  condition  attached  to  the  devise  is  "if  he  should 
not  have  any  lawful  heirs  then  after  his  death  the  farm 
to  be  sold  and  divided  equally  between"  six  of  the  testa- 
tor's grandchildren,  who  were  then  living.  It  is  famil- 
iar law  that  a  limitation  over  by  will  to  persons  in  be- 
ing, after  the  death  of  the  first  taker  without  issue,  raises 
a  strong  presumption  that  the  testator  did  not  contem- 
plate an  indefinite  failure  of  issue :  Bedford's  App.,  40 
Pa.  23.    In  the  present  case  we  think  it  is  clear  that  the 


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McCLINTIC,,Admr.,  v.  McCLINTIC,  Appellant.    115 
1917.]  Opinion  of  the  Court 

testator  intended  a  definite  failure  of  issue  at  the  time 
Gi  the  death  of  Andrew  F.  McClintic^  and  that  the  de- 
vise over  to  his  grandchildren  was  good.  Ck)ntemplat- 
ing  also  that  the  wife  of  Andrew  F.  would  outlive  her 
husband,  the  testator  provided  that  from  the  proceeds  of 
the  sale  of  the  farm,  the  wife,  Ada,  should  have  one  hun- 
dred dollars  a  year  during  her  widowhood.  The  farm 
was  not  to  be  sold  in  any  event  until  after  the  death  of 
the  first  taker.  The  gift  of  an  annuity  to  the  wife  of 
Andrew  shows  that  the  testator  contemplated  that  the 
contingency  of  Andrew's  death  'ivathout  lineal  heirs 
would  happen  in  her  lifetime,  as  well  as  within  the  life- 
time of  his  grandsons.  We  can  see  no  sound  basis  for 
the  contention  that,  under  the  clause  iu  question,  An- 
drew F.  McClintic  took  an  estate  tail,  enlarged  by  the 
act  of  assembly  into  a  fee  simple.  He  took  nothing  more 
than  a  life  estate  in  the  premises  in  question,  and  had 
no  interest  therein  which  could  be  devised  to  the  de- 
ftodant. 
The  judgment  is  affirmed. 


May^s  Estate. 

WUh-^Construciion — Life  estates — Remainders — Revocation  of 
hequesi  for  life — Effect  on  interest  in  remainder. 

Testatrix  bequeathed  her  residuary  estate  in  trust  to  pay  the 
income  equally  to  three  lesratees  for  life,  and  provided  that  upon 
their  respective  deaths  the  principal  represented  by  their  respec* 
tive  shares  of  income  should  be  paid  to  the  child  or  children  of 
such  deceased  legatee.  By  codicil  testatrix  revoked  the  bequest 
to  one  of  the  three  persons  named.  Held,  such  revocation  did  not 
affect  the  gift  in  remainder  to  the  children  of  such  legatee,  but 
created  an  intestacy  as  to  the  income  which  such  legatee  would 
have  received  for  life  had  the  bequest  not  been  revoked. 

Submitted  May  15,  1917.  Appeal,  No.  230,  Jan.  T., 
1916,  by  Mary  J.  MacTague  and  Ella  B.  McManemy, 
from  decree  of  O.  C.  Philadelphia  Co.,  April  T.,  1915,  No. 


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U6       i  MAT'S  ESTATE.. 

SUtement  of  Facts— Opinion  of  the  Court  below.  [25d  Pa. 
167,  difimisfliDg  exceptions  to  adjudication  of  trustees* 
account  in  Estate  of  Margaret  A.  May,  Deceased,  fee- 
fore  Brown,  C.  J.,  Pottbh,  Stewart,  Moschzisker  and 
Waluno,  JJ.    Affirmed. 

Exceptions  to  adjudication. 

The  facts  appear  from  the  following  from  the  opinion 
of  Lamorblle,  J. : 

The  testatrix  bequeathed  her  residuary  personal  es- 
tate in  trust  to  pay  the  net  income  to  three  persons 
named,  share  and  share  alike,  for  the  term  of  their  re- 
spective lives,  and  upon  the  death  of  any  of  them  she  di- 
rected that  the  principal  represented  by  the  share  of  in- 
come which  any  person  so  dying  had  been  receiving 
should  be  paid  to  her  child  or  children,  with  remainder 
over  in  default.  By  her  codicil  the  testatrix  revoked 
the  bequest  mentioned  in  her  will  to  Mary  E.  Mulliken, 
one  of  the  three,  and  in  all  other  respects  confirmed  her 
will.  It  is  now  argued,  that  as  this  codicil  revoked  Mrs. 
Mulliken's  right  to  participate  in  the  entire  income  of 
the  whole  estate  the  other  two  cestui  que  trust  life  ten- 
ants should  receive  the  entire  income,  share  and  share 
alike.  The  obvious  meaning  of  the  testatrix  was  to  give 
to  each  of  the  three  beneficiaries  one-third  of  the  income 
of  the  estate.  That  is  clear  from  her  language,  ^^share 
and  share  alike  during  the  term  of  their  respective 
lives."  The  gift  to  three  persons  by  name  ^^share  and 
share  alike''  and  the  limitation  of  the  gift  to  their  "re- 
spective lives"  indicate  clearly  a  severance  of  their 
beneficial  interests,  and  the  gift  in  remainder  to  their 
children  can  only  mean  a  gift  of  one-third  of  the  princi- 
pal. The  codicil  revoked  the  life  estate  given  to  Mrs. 
Mulliken  as  to  one-third,  but  did  not  affect  the  gift  in 
remainder  ta  her  children. 

The  court  in  banc  dismissed  the  exceptions  to  the  ad- 
judication.   Exceptants  appealed. 


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MAY'S  ESTATE.  117 

1917.]        Assignment  of  Erroi* — Opinion  of  the  Court. 

Erron  assigned  was  in  dismissing  the  exceptions  to 
the  adjudication. 

A.  Howard  Ritter  and  William  W.  Porter  submitted 
paper  book  for  appellants. 

No  paper  book  was  submitted  for  appellee. 

Pbb  Curiam,  June  30, 1917 : 

The  provision  in  the  will  of  the  testatrix  for  Mary  E. 
McManemj,  now  Mary  E.  Mulliken,  was  tor  income 
Only,  and,  with  the  codicil's  revocation  of  that  proyision^ 
there  was,  as  the  court  below  correctly  held,  an  intestacy 
as  to  such  income,  without  affecting  the  testamentary 
disposition  of  the  corpus  or  principal  from  which  it  ac* 
cnied :  Reichard's  App.,  116  Pa.  232. 

Appeal  dismissed  at  appellants'  costs. 


Baur  et  al.  v.  Wilkes-Barre  Light  Co.  et  al.  (Moore 
and  Hourigan^s  Appeal). 

Equity  practice — BUI  in  equity — Injunction — Bond^Affidaicii — 
Beceivers — Protection  of  property — Act  of  May  6, 18JH,  P«  L.  S6i, 
Section  l^-Acts  of  March  21, 1806,  S.  M.  L,  326,  and  June  16, 18S6, 
P,  L.  18^ — Equity  Rules  81  and  82 — Jurisdiction  of  court. 

1.  A  court  of  equity  is  withow^t  jurisdiction  to  award  an  injunc- 
tion where  no  bond  has  been  filed  as  required  by  the  Act  of  Hay 
6,  1844,  P.  L.  564,  Section  1,  and  made  mandatory  by  the  Act  of 
March  21,  1806,  S,  M.  L.  326. 

2.  Equity  rules,  promulgated  by  the  Supreme  Court  in  pursu- 
ance of  the  Act  of  June  16,  1836,  P.  L.  784,  have  the  force  of 
statutory  enactments  and  must  be  strictly  complied  with. 

8.  The  Act  of  1844  and  Equity  Rules  81  and  82  requiring  a  bond 
and  injunction  affidavits  apply  where  a  receiver  invokes  the  aid  of 
equity  to  protect  property  in  his  possession  from  interference  or 
invasion.    The  act  is  mandatory  and  applies  to  all  cases. 

4.  A  light  company  was  declared  insolvent  and  a  receiver  ap- 
pointed by  the  Court  of  Common  Pleas.  Thereafter  creditors 
filed  a  petition  in  bankruptcy,  receivers  in  bankruptcy  were  ax>- 


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118      BALTv  ct  ul.  V.  WILKES-BARBE  L.  CO.  et  at 

Syllabus— Arguments.  [259  Pa. 

pointed  an4  the  property  turned  over  to  them.  Subsequently  the 
petition  in  bankruptcy  was  dismissed  and  the  receivers  in  bank- 
ruptcy filed  their  account,  but  were  not  discharged.  The  receiver 
previously  appointed  by  the  Common  Pleas  Court  took  possession 
of  the  property  and  filed  a  bill  in  equity  for  an  injunction  to  re- 
strain the  receivers  in  bankruptcy  from  interfering  with  his  man- 
agement of  the  property;  but  failed  to  file  a  bond  or  injunction 
affidavits.  The  lower  court  granted  a  preliminary  injunction  which 
it  subsequently  refused  to  dissolve.  Held,  that  the  court  was  with- 
out jurisdiction  to  enter  such  decree  and  the  injunction  was  dia- 
foIved« 

Argued  May  21, 1917.  Appeal,  No.  167,  Jan.  T.,  1917, 
1^  Ouy  A.  Moore  and  John  A.  Hourigan,  from  decree  of 
C.  P.  Lucerne  C5o.,  in  equity,  Feb.  T.,  1912,  No.  14, 
awarding  a  preliminary  injunction  in  equity  case  of  B. 
Baur  ft  Son  et  al.  v.  The  Wilkes-Barre  Light  Co.,  on  pe- 
tition of  Martin  J.  Mulhall,  Receiver  of  the  Wilkes- 
Barre  Light  Co.,  y.  Ouy  L.  Moore  and  John  A.  Hourigan, 
Receivers  of  the  Wilkes-Barre  Light  Co.,  appointed  by 
United  States  District  Court.    Before  Brown,  C.  J., 

IfBSTRBZAT,    POTTBB,    STBWART,    MOSOHgTftKHB,    FEAZBB 

and  Walung,  JJ.    Reversed. 

BUI  in  equity  for  an  injunction.   Before  Gabman,  J. 
The  facts  appear  by  the  opinion  of  the  Supreme  Court 
The  lower  court  granted  a  preliminary  injunction 

which  it  subsequently  refused  to  dissolve.     Gfuy  A. 

Moore  and  John  A.  Hourigan  appealed. 

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

Rush  Trescott,  with  him  Edmund  O.  Butler  and  An- 
dreu)  Hourigan,  for  appellants. — The  court  is  without 
jurisdiction  to  award  an  injunction  where  no  injunction 
bond  and  affidavits  have  been  filed  t  Commonwealth  v. 
Franklin  Canal  Co.,  21  Pa.  117;  Erie  &  North-East  B. 
B.  Co.  V.  Casey,  26  Pa.  287;  Makof  v.  Sherman,  36  Pa. 


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I 


BAUR  et  al.  v.  WILKES-BAREE  L.  CO.  et  al.      119 
1917.]  Arguments — Opinion  of  the-  Court. 

Superior  Ct.  624;  Equity  Rules  81  and  82;  Act  of  May 
6, 1844,  P.  L.  564,  Section  1. 

W.  I.  Hibhs,  with  him  M.  J.  Mulhall,  for  appellee. 

Opinion  bt  Mr.  Justicb  Mbstbbzat,  June  30, 1917: 

This  is  an  appeal  by  Moore  and  Hourigan,  receivers 
in  bankruptcy  of  the  Wilkes-Barre  Light  Company, 
from  a  decree  of  the  Court  of  Common  Pleas  of  Luzerne 
County  granting  an  injunction  restraining  them  from 
proceeding  in  equity  in  the  District  Court  of  the  United 
States  for  the  Middle  District  of  Pennsylvania. 

In  January,  1912,  R.  Baur  &  Son  filed  a  bill  in  equity 
in  the  Common  Pleas  of  Luzerne  County  against  the 
Wilkes-Barre  Light  Company,  alleging  its  insolvency 
and  praying  the  appointment  of  a  receiver.  The  com- 
pany was  adjudged  insolvent,  and  Martin  J.  Mulhall, 
the  appellee,  was  appointed  receiver  and  qualified.  Sub« 
sequently  the  creditors  of  the  light  company  filed  a  pe- 
tition in  bankruptcy  in  the  United  States  District  Court 
and  Thomas  D.  Shea  was  appointed  receiver  by  that 
court.  The  Court  of  Common  Pleas  made  an  order  di- 
recting Mulhall  to  turn  over  to  Shea  the  books,  papers 
and  other  property  of  the  company  and  to  render  an 
accounting  and  statement  of  his  receivership.  The  light 
company  demurred  to  the  petition  in  bankruptcy,  Shea 
resigned,  and  Moore,  Kirkendall  and  Hourigan  were  ap- 
pointed receivers  in  bankruptcy  in  his  stead.  The  re- 
ceivers in  bankruptcy  managed  the  affairs  of  the  com- 
pany for  over  three  years,  during  which  time  they  issued 
certificates  to  the  amount  of  upwards  of  |10,000  to  en- 
able them  to  carry  on  the  business  of  the  company. 
These  certificates  remain  unpaid  and  are  outstanding. 

In  June,  1916,  the  District  Court  dismissed  the  petition 
in  bankruptcy,  its  receivers  filed  their  account,  and  on 
the  audit  thereof  the  court  awarded  commissions  and 
counsel  fees.  The  receivers  have  not  been  discharged, 
nor  has  the  district  court  authorized  or  directed  them  to 


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120     BAUR  et  al.  v.  WILKES-BARRE  L,  CO.  et  al. 

Opinion  of  the  Court  [259  Pa. 

turn  over  the  assets  of  the  company  to  Mulhall^  the  re- 
ceiver appointed  by  the  Court  of  Commcm  Pleas.  After 
the  audita  Mulhall,  assuming  that  the  jurisdiction  of  the 
district  court  had  ended,  took  possession  of  the  property 
and  as  receiver  has  since  been  operating  it.  Moore  and 
Hourigan  filed  a  bill  in  the  United  States  District  Court 
to  restrain  Mulhall  from  interfering  with  their  receiver- 
ship. On  April  5, 1917,  Mulhall  filed  his  petition  in  the 
Court  of  Common  Pleas  praying  for  an  injunction  to  re- 
strain the  receivers  in  bankruptcy  from  proceeding  fur- 
ther with  the  bill  in  equity  in  the  District  Court  and  from 
interfering  in  any  way  by  legal  process  or  otherwise  with 
his  management  of  the  light  company  and  the  control  of 
its  assets.  On  the  same  day  the  court  directed  an  injunc- 
tion to  issue  as  prayed  for,  and  fixed  a  date  to  hear  a 
motion  to  dissolve.  Moore  and  Hourigan  moved  to  dis- 
solve the  injunction  assigning  as  rieasons  that  it  was  is- 
sued without  a  bond  and  without  affidavits;  that  the 
bill  was  not  printed  and  did  not  contain  a  certificate 
that  there  was  not  time  to  print ;  that  the  bill  prayed  a 
permanent  injunction  and  the  court  without  qualifica- 
tion granted  the  prayer  of  the  bill ;  that  instead  of  com- 
plying with  the  proper  practice  of  granting  a  prelimi- 
nary injunction  with  a  motion  to  continue  the  same,  an 
injunction  permanent  in  form  was  granted  in  the  first 
instance,  with  leave  to  move  to  dissolve,  thus  improperly 
placing  the  burden  on  the  defendants;  that  the  injunc- 
tion was  granted  ex  parte  without  previous  notice  to  de- 
fendants, without  any  averment  of  irreparable  injury; 
and  that  the  court  was  without  jurisdiction,  the  District 
Court  having  exclusive  jurisdiction. 

On  the  hearing  to  dissolve  the  injunction  the  court, 
against  the  objection  of  the  appellants,  heard  testimony 
as  if  on  a  motion  to  continue  the  injunction,  and  subse- 
quently the  motion  to  dissolve  was  denied.  Moore  and 
Qourigan,  the  receivers  in  bankruptcy,  have  appealed 
and  assigned  numerous  errors,  among  which  are  the 
granting  of  the  injunction  without  security  and  affl- 


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BAUR  et  al.  v.  WILKES-BARRE  L.  CO.  et  aL      121 
1917.]  Opinion  of  the  Court, 

davits^  and  denying  the  motion  to  dissolve.  The  appel* 
lants  also  aver,  as  a  reason  for  reversing  the  decree,  that 
the  District  Court  of  the  United  States  had  exclusive 
jurisdiction  of  the  subject-matter  of  the  complaint,  and 
that  the  Court  of  Common  Pleas  was  without  jurisdic- 
tion and,  therefore,  had  no  right  or  power  to  grant  the 
injunction. 

We  think  the  learned  court  below  committed  manifest 
error  in  granting  the  injunction.  No  bond  or  injunction 
affidavits  were  filed,  and,  hence,  the  court  was  without 
jurisdiction  to  award  the  writ.  Such  action  by  the  court 
was  in  direct  violation  of  the  Act  of  May  6^  1844,  P.  L. 
564,  Section  1  of  which  provides :  "No  injunctions  shall 
be  issued  by  any  court  or  judge,  until  the  party  applying 
for  the  same  shall  have  given  bond  with  sufficient  sure- 
ties, to  be  approved  by  said  court  or  judge,  conditioned  to 
indemnify  the  other  party  for  all  damages  that  may  be 
sustained  by  reason  of  such  injunction."  In  no  case, 
therefore,  can  an  injunction  issue  without  security  being 
given,  as  the  Act  of  March  21,  1806,  Sec.  13,  4  Sm.  L. 
326,  provides  that,  "in  all  cases  where  a  remedy  is  pro- 
vided, or  duty  enjoined,  or  anything  directed  to  be  done 
by  any  act  or  acts  of  assembly  of  this  Commonwealth, 
the  directions  of  the  said  acts  shall  be  strictly  pursued." 
The  order  awarding  the  injunction  was  also  violative  of 
equity  Rule  82  which  provides:  "Cautionary  orders  in 
injunction  bills  shall  not  be  made,  nor  shall  any  injunc- 
tion be  allowed  except  security  be  given  according  to 
law" ;  and  of  Rule  81  providing  that  preliminary  injunc- 
tions may  be  granted,  in  accordance  with  the  present 
practice,  on  bill  and  injunction  affidavits.  As  we  have 
frequently  held,  the  equity  rules,  promulgated  by  this 
court  in  pursuance  of  the  Act  of  June  16,  1836,  P.  L. 
784,  have  the  force  of  statutory  enactments  and  must  be 
strictly  complied  with.  It,  therefore,  needs  no  argu* 
ment  to  show  that  the  court  below  was  without  author* 
ity  to  issue  the  injunction  under  the  circumstances,  and 
that  the  decree  awarding  the  writ  is  a  nullity.    The  de- 


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122      BAUR  et  al.  v.  WILKES-BARRE  L.  CO.  et  aL 

Opinion  of  the  Court.  [259  Pa. 

ckions  of  this  court  conclusively  settle  the  question: 
Erie  ft  North-East  R.  E.  Co.  v.  Casey,  26  Pa.  287;  Kin- 
caid^s  App.,  66  Pa.  411;  Gilroy's  App.,  100  Pa.  5;  Juni- 
ata Water  &  Water  Power  Co.  v.  Wilson  Electric  Co., 
226  Pa.  407. 

The  appellee  contends  that  the  act  of  assembly  and  the 
equity  rules  requiring  a  bond  and  injunction  affidavits 
do  not  apply  where  a  receiver  invokes  the  aid  of  equity 
to  protect  the  property  in  his  possession  from  interfer- 
ence or  invasion,  but  we  regai*d  this  contention  as 
having  no  merit.  The  Act  of  1844  is  mandatory  and 
declares  that  no  injunction  shall  be  issued  by  any  court 
or  judge  without  sufficient  security.  This  language  is 
sufficiently  comprehensive  to  include  the  present  case. 
As  said  in  Commonwealth  v.  Franklin  Canal  Co.,  21  Pa. 
117, 130 :  "The  words  are  broad  and  general,  they  apply 
to  all  cases."  The  equity  rules  are  equally  imperative 
in  requiring  injunction  affidavits,  and  we  can  see  no  rea- 
son why  the  appellee  should  be  relieved  from  a  strict 
compliance  with  them.  Both  the  law  and  the  rules  of 
court  were  adopted  after  mature  consideration  and 
from  an  experience  which  determined  their  necessity,  for 
the  protection  of  those  against  whom  injunctions  might 
be  issued.  It  is  true  that  a  receiver  is  an  officer  of  the 
court  and  acts  for  the  court  in  the  administration  of  the 
property  in  his  charge,  but  the  present  case  is  not  an 
attachment  issued  to  punish  a  contempt  of  the  court  by 
interfering  with  its  officer  in  the  management  of  the 
property  in  his  possession.  It  is  simply  the  ordinary 
case  of  an  injunction  issued  upon  a  bill  or  petition  to  re- 
strain an  alleged  illegal  act  threatened  by  the  defend- 
ant. 

We  are  compelled  to  sustain  the  first,  fourth,  fifth  and 
sixth  assignments  of  error  and  reverse  the  court  below 
for  the  reasons  stated.  The  other  questions  raised  by  the 
several  itssignments  become  immaterial  and  need  not  be 
considered. 


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BAUB  et  al,  v,  WILKESBARBE  L.  CO.  et  al.      123 
1917.]  Opmion  of  the  Court. 

The  decree  is  reversed,  and  the  injunction  is  dissolved 
at  the  costs  of  the  appellee. 


Yeager  v.  Anthracite  Brewing  Company,  Appel- 
lant. 

Negligence — Masier  and  servant — Brewing  company — Moving 
machinery — Change  in  operation — Increased  danger — Failure  to 
notify  employee-^ ontrib^utory  negligence — Instructions  to  jury — 
Patlure  to  request — Earning  power — Charge  of  court-^Pleading — ■ 
Vmriance. 

1.  If  the  operation  of  a  machine  prior  to  changes  is  not  attended 
with  danger  and  changes,  involving  danger,  are  made  without  notice 
to  or  knowledge  of  an  employee  and  in  the  exercise  of  ordinary 
prudence  he  would  not  observe  such  changes,  it  is  the  duty  of  the 
employer  to  notify  him  thereof,  and  failure  to  do  so  is  h^Kgence. 

2.  In  an  action  by  an  employee  against  a  brewing  company  to 
recover  damages  for  personal  injuries  resulting  from  his  arm  being 
caught  in  the  revolving  cogs  of  a  machine,  the  questions  of  defend- 
ant's negligence  and  the  contributory  negligence  of  the  plaintiff 
were  for  the  jury  and  a  verdict  and  judgment  for  the  plaintiff  will 
be  sustained  where  it  appeared  that  it  was  the  duty  of  the  plaintiff, 
who  was  on  night  turn,  to  remove  from  time  to  time  the  malt 
which  accumulated  in  the  gear  boxea  of  the  malt  dryer,  a  cylin- 
drical drum  revolving  by  means  of  cogwheels  connected  with  the 
drivinfiT  shaft;  that  in  the  performance  of  such  services  plaintiff 
was  required  to  go  to  the  rear  of  a  chute  which  fed  the  dryer  and 
to  stand  within  a  narrow  space  between  the  chute  and  reach  over 
the  gear,  which  had  for  many  years  been  revolving  outward  and 
was  therefore  not  dangerous;  that  nine  days  prior  to  the  accident 
defendant  changed  the  operation  of  the  cogwheels  so  that  they 
revolved  inward  instead  of  outward ;  that  defendant  did  not  notify 
plaintiff  of  such  change  and  plaintiff  was  not  aware  thereof  and 
could  not  observe  same  on  account  of  the  clarkness  of  the  place  and 
the  rapidity  with  which  the  cogs  revolved;  and  while  in  the  act  of 
removing  the  malt  his  arm  was  caught  in  the  cogs  and  he  sus- 
tained the  injuries  complained  of. 

8.  In  such  case  the  plaintiff  was  justified  in  assuming  that  the 
wheels  were  still  revolving  outward. 

4  Where  it  appeared  that  the  weekly  wage  of  the  plaintiff  was 
the  tome  after  as  before  the  accident,  the  court  did  not  err,  after 
referring  to  such  fact,  in  charging  that  ''it  is  for  lost  of  earning. 


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124.  YEAGER  v.  ANTHRACITE  BftWG.  CO,  Appellant. 
Syllabus— Argum^ts.  [259  Pa. 

power  in  the  future  that  you  are  to  compensate  him,  if  anything.  In 
other  words,  what  would  he  continue  to  earn  in  the  future  had  this 
accident  not  have  happened,  and  that  for  a  period  of  the  balance  of 
hia  life?''  The  test  is  whether  the  power  or  capacity  to  earn  has 
boon  diminished  as  a  result  of  the  injury,  and  the  earnings  of  the 
plaintiff  subsequent  to  the  injury,  as  compared  with  his  earnings 
prior  to  the  injury,  are  evidence,  but  not  conclusive,  as  to  whether 
his  earning  power  has  been  diminished  by  reason  of  the  injury. 

Argued  May  21, 1917.  Appeal,  No.  194,  Jan.  T.,  1916, 
by  defendant,  from  judgment  of  C.  P.  Northumberland 
Co.,  Feb.  T.,  1915,  No.  193,  on  verdict  for  plaintiflE  in 
case  of  Charles  Yeager  v.  Anthracite  Brewing  Company. 
Before  Brown,  0.  J.,  Mbstrbzat,  Potter,  Stewart, 
MosoHzisitBR,  PRAzijR  and  Walling,  JJ.    Affirmed. 

Trespass  for  personal  injuries.  Before  Cummings, 
P.J. 

The  facts  appear  by  the  opinion  of  the  Supreme  CJourt. 

Verdict  for  plaintiff  for  |1,750  and  judgment  thereon. 
Defendant  appealed. 

Errors  assigned  were  the  charge  of  the  court  and  in 
refusing  to  direct  a  verdict  for  the  defendant. 

Voris  Auten,  with  him  Bastress  d  Tier  and  C.  M. 
Clement,  for  appellant. — Plaintiff  voluntarily  and  un- 
necessarily placed  himself  in  a  position  of  danger  and 
was  guilty  of  contributory  negligence :  Solt  v.  Williams- 
port  Radiator  Co.,  231  Pa.  585 ;  Lowry  v.  Baldwin  Loco- 
motive Works,  253  Pa.  87. 

L.  8.  Walter,  with  him  J.  Orant  Kehler^  for  appellee.: 
— Plaintiff  was  justified  in  resting  on  the  assumption 
that  the  gears  of  the  machine  were  running  outward  as 
they  had  been  for  three  years,  in  the  absence  of  his  ability 
to  see  the  condition  and  in  the  absence  of  actual  knowl- 
edge or  notice  of  the  change:  Pern  v.  Penna.  R.  R.  Co., 
250  Pa.  487. 


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TEAGER  V.  ANTHRACITE  BRWO.  CO.,  Appellant.  125 
1917.]  Opinion  of  the  Court. 

Opinion  by  Mb.  Justice  Mbstbbzat,  June  30, 1917 : 
ThiB  is  an  action  of  trespass  to  recover  damages  for  in- 
juries sustained  by  the  plaintiff  while  he  was  in  the  sery* 
ice  of  the  defendant  company.  The  plaintiff  had  been 
employed  as  night  engineer  in  the  defendant's  brewery 
for  nine  years  prior  to  the  accident  which  resulted  in  his 
injuries.  It  appears  from  the  evidence,  and  is  substan- 
tially stated  by  the  learned  court  below  in  its  opinion 
refusing  a  new  trial,  that,  in  addition  to  his  duties  as 
engineer,  the  plaintiff  was  required  to  remove,  at  stipu- 
lated periods,  the  malt  which  had  accumulated  in  the 
gear  boxes  of  the  drying  drum,  or  malt  drier,  which  is  a 
cylindrical  drum  some  thirty  feet  in  length  and  about 
thirty  inches  in  diameter,  and  revolves  by  means  of  cog- 
wheels or  cog  gearing  connected  with  a  driving  shaft. 
The  drum  contains  steam  flues  and  is  used  for  the 
drying  of  malt  to  be  sold  for  feed.  For  the  purpose 
of  performing  this  service,  the  plaintiff  was  required  to 
go  to  the  rear  of  a  hopper  or  chute  which  fed  the  drier 
and  extended  from  the  ceiling  to  within  three  feet  of  the 
floor  and  within  two  and  one-half  feet  of  the  cogwheels 
or  gearing  which  ran  the  drier.  In  removing  the  malt 
from  the  boxes,  he  was  required  to  stand  within  the 
narrow  space  between  the  hopper  and  the  drier,  and  to 
reach  over  the  gearing  which  had,  for  many  years,  been 
running  or  revolving  outivard  and,  for  that  reason,  did 
not  endanger  the  person  performing  the  service.  About 
nine  days  prior  to  the  accident,  the  defendant  changed 
the  operation  of  the  cogwheels  so  that  they  revolved  in- 
ward instead  of  outward.  The  plaintiff  did  not  know  of 
the  change  and  did  not  discover  it  while  attending  to  his 
duties  because  the  place  was  dark,  and  his  body  shaded 
the  dim  light  which  hung  above  and  back  of  him.  On 
the  night  of  the  accident,  he  reached  over  the  cogwbeels 
or  gearing,  while  in  motion,  to  remove  the  malt  from  the 
gear  boxes  the  same  as  he  had  done  in  the  past,  having 
been  instructed  by  his  employer  to  do  the  work  while 
the  machinery  was  in  motion.    In  some  manner  his  arm 


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126  TEAGER  v.  ANTHRACITE  BRWQ.  CO.,  Appellant. 
Opinion  of  the  Court  [259  Pa. 

was  caught  in  the  cogs  between  the  elbow  and  shoulder. 
The  muscles  were  torn  and  part  of  the  muscle  fibre  and 
tissue  was  ground  up  in  the  cogs.  His  injuries  are  se- 
vere and  permanent  The  plaintiff  did  not  know  of  the 
change  in  the  motion  of  the  cogs  until  after  the  accidmt 
had  occurred. 

In  the  statement  of  the  cause  of  action,  it  is  averred 
that  the  defendant  failed  to  furnish  plaintiff  a  safe 
place  to  work ;  failed  to  furnish  him  safe  instruments 
with  which  to  woik;  failed  to  properly  guard,  pro- 
tect or  cover  the  gears;  and  failed  to  properly  in- 
struct the  plaintiff  how  to  remove  the  malt  from  the  gear 
boxes,  and  to  warn  him  of  the  danger  of  coming  in  con- 
tact with  the  gearing.  The  def^idant  pleaded  the  gen- 
eral issue.  The  court  submitted  the  case  in  a  clear  and 
adequate  charge,  and  the  jury  found  for  the  plaintiff. 
Judgment  having  been  entered  on  the  verdict,  the  de- 
fendant has  taken  this  appeal. 

The  questions  involved,  as  stated  by  the  appellant,  are: 
(a)  Was  the  plaintiff  entitled  to  cautionary  instructkms 
as  to  the  changes  made  in  the  operation  of  the  machin- 
ery; (b)  was  the  plaintiff  guilty  of  contributory  negli- 
gence; and  (c)  was  the  charge  of  the  court  an  adequate 
and  proper  presentation  of  the  case  to  the  jury? 

We  have  stated  the  facts  which  the  jury  was  war- 
ranted in  finding  from  the  evidence  produced  on  the 
trial  of  the  cause.  We  think  the  testimony  was  ample  to 
submit  to  the  jury  on  the  question  of  the  defendant's 
negligence,  and  that  the  court  would  not  have  been  justi- 
fied ia  declaring  the  plaintiff  n^ligent  as  a  matter  of 
law.  It  is  claimed  that,  as  the  wheels  were  revolving  in- 
ward, the  plaintiff  was  guilty  6t  negligence  in  attempt- 
ing to  remove  the  malt  from  the  gear  boxes  while  the 
machinery  was  in  motion.  It  is  urged  that  the  change 
made  in  the  revolution  of  the  cogwheels  could  be  plainly 
seen  by  the  plaintiff,  and  that  he  was  and  had  been  for  a 
long  time  familiar  with  the  operation  of  the  machinery, 
and,  therefore,  knew  of  the  change  which  the  company 


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YEAGER  V.  ANTHRACITE  BRWG.  CO.,  Appellant.  127 
1917.]  Opinion  of  the  Oonrt 

had  made,  or  should  have  known  it  if  he  had  exercised 
proper  care  in  the  performance  of  his  duties.  This  con- 
tention is  met  by  the  testimony  introduced  by  the  plain* 
tiff,  which  manifestly  was  for  the  consideration  of  the 
jury,  that  for  some  years  prior  to  the  accident  he  had 
performed  this  work  while  the  wheels  revolved  outward- 
ly and  it  was  not  attended  with  any  danger ;  that,  in  re- 
moving the  malt  from  the  gear  boxes,  he  was  required 
to  stand  in  the  narrow  space  between  the  hopper  and  the 
drier,  which  was  biadly  lighted,  and  that  the  cogwheels 
revolved  so  rapidly  that  it  was  difficult  to  determine  the 
direction  of  the  revolution  of  the  wheels.  The  plaintiff 
had  been  instructed  by  the  defendant  prior  to  the  change 
to  perform  the  work  while  the  machinery  was  in  motion, 
which  was  attended  with  no  danger  so  long  as  the  cog- 
wheels revolved  outwardly.  No  covering  or  artificial 
guard  over  the  machinery  was  necessary  under  those 
conditions.  The  plaintiff  testified  that  he  could  not  see 
the  change  in  the  revolution  of  the  wheels  because  the 
light  was  dim  and  his  body  cast  a  shadow  over  the 
wheels,  and  that  from  his  previous  experience  in  per- 
forming the  work  he  assumed  on  this  occasion  that  the 
wheels  were  still  revolving  outwardly.  He  was  justified 
in  this  assumption :  Fern  v.  Penna.  R.  R.  Co.,  250  Pa. 
487.  The  change  from  the  outward  to  the  inward  revolu- 
tion of  the  wheels  was  made,  as  the  jury  found,  without 
notice  to,  or  the  knowledge  of,  the  plaintiff,  and,  there- 
fore, whether  or  not,  under  the  circumstances  disclosed 
by  the  evidence,  cautionary  instructions  as  to  the  change 
made  in  the  operation  of  the  machinery  should  have  been 
given  him  was  a  question  for  the  jury.  If  the  operation 
of  the  machine  prior  to  the  changes  was  not  attended 
with  danger  and  they  were  made  without  notice  to,  or 
knowledge  of,  the  plaintiff  and  in  the  exercise  of  ordi- 
nary prudence  he  would  not  observe  them,  it  was  the 
duty  of  the  defendant  company  to  notify  him  of  such 
changes  if  they  involved  danger,  and  the  failure  to  do  so 
was  negligence  for  which  the  company  was  liable :  Mc- 


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133  YEAGEB  v.  ANTHRACITE  BRWG.  CO.,  AppeUant 
Opinion  of  the  Court,  [259  Pa. 

Keever  v.  Westinghouse  Elect.  &  Mfg.  Co.,  194  Pa.  149; 
Coll  V.  Westinghouse  Elect.  &  Mfg.  Co.,  230  Pa.  86; 
Jones  V.  American  Can  Co.,  242  Pa.  611;  Swauger  v. 
Peoples  Natural  Gas  Co.,  251  Pa.  287;  3  Labatt,  Master 
&  Servant  (2d  Ed.),  Sec.  923,  page  2465. 

The  eighth  assignment,  alleging  error  in  the  general 
charge  on  the  question  of  damages,  is  the  only  assign- 
ment that  challenges  the  adequacy  of  the  charge  to  the 
jury.  The  learned  trial  judge,  after  referring  to  the  fact 
that  the  plaintiff  received  the  same  wage  per  week  for 
hiis  services  after  the  accident  as  before,  and  for  that  rea- 
son it  was  claimed  there  would  be  no  loss  of  earning 
power  or  capacity,  said :  "That  might  be  true  in  one  re- 
spect but  it  is  your  duty  to  take  his  earning  capacity  be- 
fore and  his  earning  capacity  after  into  consideration  in 
trying  to  determine  what  his  earning  capacity  would  be 
in  the  future.  It  is  for  loss  of  earning  power  in  the  fu- 
ture that  you  are  to  compensate  him,  if  anything.  In 
other  words,  what  would  he  continue  to  earn  in  the  fu- 
ture had  this  accident  not  have  happened,  and  that  for  a 
period  of  the  balance  of  his  life."  The  learned  counsel 
for  the  appellant  seem  to  think,  in  view  of  the  fact  that 
the  plaintiff's  weekly  wage  was  the  same  after  as  before 
the  accident,  the  earning  capacity  of  the  plaintiff  had 
not  been  diminished  by  reason  of  the  injury,  and,  hence, 
he  was  not  entitled  to  recover  damages  in  this  case.  That 
is  not  the  standard  by  which  the  plaintiff's  future  earn- 
ing capacity  should  be  tested ;  it  is  whether  the  power  or 
capacity  to  earn  has  been  diminished  as  a  result  of  the 
injury :  Leonhardt  v.  Green,  251  Pa.  579.  The  earnings 
of  the  plaintiff,  subsequent  to  the  injury,  are,  as  com- 
pared with  his  earnings  prior  to  the  injury,  evidence,  but 
not  conclusive,  as  to  whether  his  earning  power  has  been 
diminished  by  reason  of  the  injury  resulting  from  the  ac- 
cident :  McLaughlin  v.  Corry,  77  Pa.  109.  There  was 
evidence  in  the  case  that  the  plaintiff's  strength  was 
much  impaired,  and  that  he  was  permanently  unable  to 
do  as  much  or  as  heavy  work  as  before  the  accident.    He 


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YEAGER  V.  ANTHRACITE  BRWG.  CO.,  Appellant.  129 
1917.]  Opinion  of  the  Court. 

may,  therefore,  as  could  have  been  found  by  the  jury 
from  this  evidence,  be  compelled  in  the  future  to  accept 
less  remunerative  employment  than  if  he  had  not  been 
injured.  The  fact  that  he  was  receiving  at  the  time  of 
the  trial  the  same  wage  he  had  received  previous  to  his 
injury  was  no  assurance  that  in  the  future  he  would  re- 
ceive the  same  wage  for  similar  employment,  or  that  his 
injured  condition  would  not  compel  him  to  accept  a  much 
smaller  remuneration  for  labor  which  he  could  perform. 

It  is  further  claimed  in  this  connection  that  the 
court  should  have  told  the  jury  that  the  earning  ca- 
pacity of  the  plaintiff  would  naturally  and  unavoidably 
decrease  with  advancing  years,  and  that  if  he  lived  be- 
yond a  certain  period  his  earning  capacity,  even  though 
no  accident  bad  occurred,  would  probably  cease  entirely. 
This  criticism  is  directed  against  the  last  sentence  of 
that  part  of  the  general  charge  quoted  above  in  which 
the  court  told  the  jury  they  should  determine  what  the 
plaintiff  would  continue  to  earn  in  the  future  had  the 
accident  not  happened,  and  for  the  period  of  the  balance 
of  his  life.  This  instruction,  taken  in  connection  with 
what  the  court  had  already  said  on  the  question  of  dam- 
ages, was  correct:  Scott  Township  v.  Montgomery,  95 
Pa.  444.  It  would  hardly  be  necessary  for  the  court  to 
tell  an  intelligent  jury,  what  every  juryman  would  other- 
wise know,  that  a  man's  earning  power  would  decrease 
as  the  years  went  on,  and  that  Anally  total  incapacity 
to  work  would  follow.  The  instructions  of  the  court 
below,  which  have  been  approved  by  this  court,  did  not 
warrant  the  jury  in  finding  that  the  plaintiff's  earning 
capacity  would  not  change  with  the  years,  and  would  be 
the  same  at  the  end  of  a  long  life  as  it  was  immediately 
after  he  was  injured.  If  the  appellant  company  desired 
other  or  more  explicit  instructions  on  this  branch  of  the 
case,  they  should  have  been  requested  by  a  point  or 
points  l^rop^rly  framed  and  presented  to  the  court. 

There  was  no  variance  between  the. averments  of  the 
statement  and  the  proof  on  the  trial  of  the  cause.    If  the 
Vol.  ccux — 9 


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130  TEAGER  V.  ANTHRACITE  BRWG.  CO.,  Appellant 
Opinion  of  the  Court.  [259  Pa. 

amendment  of  the  statement  was  necessary,  it  did  not 
change  the  canse  of  action,  and  was  properly  allowed  by 
the  court.  We  do  not  see,  however,  that  the  proof  ad- 
duced on  the  trial  was  not  fully  covered  by  the  alle- 
gations of  the  original  statement. 

The  question  raised  by  the  seventh  assignment  of  error 
is  not  covered  by  the  statement  of  the  questions  involved, 
and,  hence,  as  we  have  repeatedly  held,  will  not  be  con- 
sidered. 

The  judgment  is  affirmed. 


Commonwealth  v.  Schwarzschild,  Appellant. 

Taxation — Foreign  corporations — Capital — Bonus — Act  of  May 
8,  1901,  P.  L,  160. 

The  bonus  imposed  on  the  capital  of  a  foreign  corporation  by  the 
Act  of  May  8,  1901,  P.  L.  160,  is  upon  its  capital  or  property 
actually  employed  within  this  State  and  not  upon  the  proportion- 
ate value  of  the  company's  stock  here  employed. 

Argued  May  21,  1917.  Appeal,  No.  11,  May  Term, 
1917,  by  defendant,  from  judgment  of  C.  P.  Dauphin 
County,  Commonwealth  Docket,  No.  387,  1911,  on  case 
submitted  without  jury  in  ease  of  Commoi;iweaIth  of 
Pennsylvania  v.  Schwarzschild  &  Sulzberger  Comt>any 
of  America.  Before  Brown,  C.  J.,  Mestrbzat,  Potter, 
Stbwart,  Mosghzisker,  Frazer  and  Waluno,  JJ.  Af- 
firmed. 

Appeal  by  foreign  corporation  from  settlement  of  ac- 
count by  auditor  general  and  State  treasurer. 

The  facts  appear  by  the  following  opinion  by  Mc- 
Carrbll,  J. : 

Trial  by  jury  has  been  duly  waived  in  this  case.  Prom 
the  testimony  submitted  we  find  the  following 


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COMMONWEALTH  v.  SCHWARZSCHILD,  Appel.  131 
1917.]  Opinion  of  Court  below. 

STATEMENT  OF  FACTS : 

The  defendant  was  incorporated  February  10,  1904, 
imder  the  laws  of  the  State  of  New  Jersey.  It  began 
business  in  Pennsylvania  October  26,  1909,  and  filed  a 
report  May  11,  1911,  for  the  purpose  of  haying  settled 
the  amount  of  bonus  it  was  required  to  pay.  This  re- 
port showed  that  its  capital  stock  was  |250,000,  |100,000 
of  which  was  issued  as  preferred  stock.  The  report 
further  claimed  that  the  amount  of  capital  stock  wholly 
employed  in  Pennsylvania  was  |53,275,  and  that  during 
the  year  ending  November  30, 1910,  the  average  amount 
of  stock  in  trade  carried  in  Pennsylvania  was  |245,000. 
The  accounting  officers  contending  that  the  bonus  was  to 
be  computed  on  the  amount  of  capital  employed  in  Penn- 
sylvania fixed  this  amount,  based  upon  statements  con- 
tained in  the  company's  report  as  to  the  value  of  its  capi- 
tal stock  for  the  same  year  at  |685,706,  and  charged  the 
company  with  a  bonus  of  one-third  of  one  per  cent,  there- 
on, amounting  to  |2,285.69.  This  settlement  was  made 
September  25,  1911,  and  the  defendant  duly  appealed 
therefrom. 

The  defendant  company  contends  that  the  bonus  is 
based  upon  the  proportionate  amount  of  the  value  of  the 
company's  capital  stock  employed  in  Pennsylvania,  and 
claims  that  this  proportion  is  f53,275.  The  defendant 
has  paid  a  bonus  of  |177.58,  based  upon  this  contention. 
The  question  now  to  be  determined  is  whether  the  bonus 
is  to  be  computed  upon  the  proportionate  value  of  the 
capital  stock  of  the  defendant  company  employed  in 
Pennsylvania,  or  upon  the  amount  or  value  of  capital 
employed  wholly  within  the  State. 

niscussioN. 

The  Act  of  May  8,  1901,  P.  L.  150^  under  which  the 
settlement  in  this  case  was  made  provides  that  foreign 
corporations  "shall  pay  to  the  State  treasurer  for  the 


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132  COMMONWEALTH  v.  SCHWARZSCHILD,  AppeL 

Opinion  of  Court  below.  [259  Pa. 

use  of  the  Commonwealth  a  boaus  of  one-third  of  one 
per  cent,  upon  the  amount  of  their  capital  actually  em- 
ployed or  to  be  employed  within  the  State  of  Pennsyl- 
vania, and  a  like  bonus  upon  each  subsequent  increase 
of  capital  so  employed."  The  bonus  is  upon  the  amount 
of  capital  actually  employed  or  to  be  employed.  The  act 
makes  no  mention  of  capital  stock  except  to  inquire  the 
amount  of  the  authorized  capital  stock  of  the  company. 
The  language  of  this  statute  differs  from  the  statutes  re- 
lating to  bonus  on  domestic  corporations. 

The  Act  of  May  1, 1868,  P.  L.  108, 113,  Sec  15,  relat- 
ing to  domestic  companies,  directs  the  payment  of  "a 
bonus  of  one-quarter  of  one  per  cent,  upon  the  amount  of 
capital  stock  which  said  company  is  authorized  to  have.^' 
All  our  subsequent  statutes  relative  to  bonus  payable  by 
domestic  corporations  (to  wit:  April  18, 1874,  P.  L.  61; 
April  29, 1874,  P.  L.  73;  May  7,  1889,  P.  L.  115;  June 
15,  1897,  P.  L.  155;  May  3,  1899,  P.  L.  189)  impose  it 
upon  the  capital  stock,  and  the  Acts  of  June  15,  1897, 
P.  L.  155,  and  May  3,  1899,  P.  L.  189,  require  payment 
of  a  bonus  of  one-third  of  one  per  cent  upon  the  amount 
of  capital  stock  which  the  company  is  authorized  to  have 
and  a  like  bonus  upon  any  subsequent  increase  thereof. 

The  Act  of  May  8, 1901,  P.  L.  150,  already  referred  to 
is  the  original  act  requiring  the  payment  of  bonus  by 
foreign  corporations  doing  business  in  this  State.  The 
act  does  not  require  any  investigation  as  to  the  value  of 
the  capital  stock  and  it  does  not  ask  for  information 
necessary  to  enable  the  value  of  its  capital  stock  to  be 
accurately  ascertained.  The  application  or  report  re- 
quires only  a  statement,  as  f ollow^s : 

1.  The  state  or  country  in  which  incorporated  or  cre- 
ated. 

2.  The  date  of  incorporation  or  organization. 

3.  The  location  of  its  chief  of&ce  in  this  State. 

4.  The  name  and  address  of  its  president  and  treas* 
urer. 

•  5.  The  amount  of  its  bonded  indebtedness. 


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COilAIOXWEALTH  v.  SCI1\VaRZSCHILD,  Appel.  133 
iyi7.]  Opinion  of  Court  below. 

6.  The  amount  of  its  authorized  capital  stock. 

7.  The  amount  of  capital  paid  in. 

8.  The  amount  of  capital  employed  wholly  in  the 
State  of  Pennsylvania. 

These  matters  are  very  different  from  what  is  required 
from  corporations  making  reports  for  the  purpose  of 
having  the  actual  value  of  capital  stock  ascertained  for 
the  purpose  of  taxation.  Here  there  is  no  inquiry  as  to 
the  gross  earnings  of  the  corporations,  its  net  earnings^ 
total  amount  of  its  business  or  property,  the  dividends 
paid,  or  the  prices  at  which  sales  of  stock  have  been  ef- 
fected. The  acts  already  referred  to  with  respect  to 
domestic  corporations  require  the  payment  of  bonus 
not  upon  capital  employed,  but  upon  the  authorized 
capital  stock  of  the  corporation.  The  act  we  are  here 
considering  imposes  the  bonus  not  upon  capital  stock 
but  upon  capital  actually  employed  within  the  State.  If 
the  legislature  intended  that  the  bonus  was  to  be  paid 
on  the  value  of  the  capital  stock  it  is  strange  that  the 
language  of  the  acts  imposing  bonus  upon  domestic  cor- 
porations was  not  followed.  Bonus  is  payable  only  once, 
unless  there  be  an  increase  of  capital  stock  or  capital 
employed.  Domestic  corporations  naturally  pay  the 
bonus  upon  the  authorized  capital,  and  this  is  payable 
at  the  creation  of  the  corporation  and  before  the  invest- 
ment of  capital  has  resulted  in  profitable  management 
and  an  increase  in  the  actual  value  of  the  shares  of  capi- 
tal stock.  According  to  the  report  of  the  defendant  com- 
pany, which  was  offered  in  evidence  here  with  respect 
to  the  value  of  its  capital  stock  for  the  year  1910,  it  ap- 
pears that  the  value  of  the  proportion  of  its  capital  stock 
employed  in  Pennsylvania  was  |53,275.  The  value  of 
real  property  employed  in  Pennsylvania  was  fl80,- 
951.60.  Its  cash  and  current  assets  were  $340,688.18. 
Its  merchandise  was  $163,066.69.  Its  liabilities  in  Penn- 
sylvania were  $632,431.47.  Capital  may  be  either  cash 
or  property,  real  or  personal,  and  from  this  report  the 
company  apparently  had   employed   in   Pennsylvania 


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lU  COMMONAVEALTII  v.  SCHWARZSCHILD,  AppeL 

Opinion  of  Court  below.  [259  Pa, 

property  and  merchandise  amounting  to  1344,018.  The 
cash  and  current  assets  mentioned  in  this  report  are  un- 
certain in  their  character  and  no  testimony  was  offered 
by  the  Commonwealth  to  indicate  particularly  what 
amount  of  cash  was  in  Pennsylvania,  in  what  way  it  was 
used,  or  of  what  the  current  assets  consisted.  Under 
this  may  have  been  included  bills  receivable  and  current 
accounts.  If  so,  according  to  the  decision  in  the  case  of 
Commonwealth  v.  G.  W.  Ellis  Co.,  237  Pa.  328,  this  item 
cannot  be  considered  as  any  part  of  the  basis  for  bonus 
settlement.    In  this  case  it  is  said,  page  330 : 

"The  bills  and  accounts  receivable  certainly  do  not 
represent  capital  actually  employed  wholly  within  the 
State  of  Pennsylvania.  This  may  indicate  to  some  ex- 
tent the  volume  of  business  done  by  the  corporation  in 
the  State,  but  the  bonus  is  not  payable  upon  the  volume 
of  business  from  year  to  year,  but  upon  capital  actually 
employed  within  the  State." 

From  the  capital  stock  report  for  the  year  1910,  it  ap- 
pears that  the  total  value  of  all  the  assets  of  the  com- 
pany was  13,217,737,  and  the  value  of  all  the  assets  in 
Pennsylvania  was  f685,706.  From  these  figures  it  ap- 
pears that  685,706/3,217,737  of  |250,000,  being  the 
whole  capital,  amounts  to  ^3,275,  upon  which  sum 
alone  the  defendant  contends  it  is  liable  for  bonus.  If 
the  bonus  can  properly  be  based  upon  this  proportionate 
value  of  the  capital  stock  employed,  the  company  would 
be  permitted  apparently  to  have  and  actually  employ  in 
Pennsylvania  capital  of  a  very  much  larger  amount 
without  payment  of  any  bonus.  There  can  be  no  doubt 
that  the  company  had  in  Pennsylvania  and  was  actually 
employing  or  using  property  of  the  value  of  f344,018. 
The  Act  of  1901,  by  its  terms  seems  to  require  that  the 
bonus  shall  be  paid  upon  this  amount.  It  is  true  that 
the  terms  "capital"  and  "capital  stock"  are  sometimes 
properly  regarded  as  synonymous  terms.  Capital  is  the 
money  contributed  for  corporate  purposes  and  may  be 
expended  for  any  proper  corporate  use.    When  invested 


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COMMONWEALTH  v,  SCHWARZSCHILD,  Appel.  135 
1917.]  Opinion  of  Court  below. 

in  property  it  becomes  capital  stock,  which  is  issued  in 
shares  to  the  stockholders  in  proportion  to  their  respec- 
tive contributions  of  capital.  The  value  of  capital  stock 
is  therefore  primarily  the  value  of  the  corporate  prop- 
erty. Successful  corporate  activity  naturally  will  in- 
crease the  market  value  of  the  ishares  and  cause  them  to 
sell  in  the  market  for  more  than  par.  Unsuccessful  oper- 
ation will  naturally  lower  the  market  value.  The  value 
of  the  capital  stock  is  presumably  the  value  of  all  the 
property  owned  by  the  corporation,  unless  there  be  in- 
debtedness, and  indebtedness  must  necessarily  be  con- 
sidered in  estimating  the  market  value.  Whether  or  not 
the  total  indebtedness  should  be  deducted  from  the 
market  value  or  par  value  of  the  stock  requires  careful 
consideration  in  each  case.  The  practice  has  been  not 
to  deduct  it  absolutely,  but  to  give  it  such  consideration 
as  in  the  judgment  of  the  court  it  deserves  to  have  in 
fixing  the  market  value  of  the  stock.  The  five  mill  tax  on 
the  value  of  capital  stock  is  always  ascertained  and  ad- 
justed in  this  way,  because  the  tax  is  by  the  terms  of  the 
taxing  statute  imposed  upon  the  market  value  of  the 
stock  as  ascertained  by  sales  made  between  certain 
limited  periods  and  from  the  consideration  of  all  rele- 
vant facts  bearing  upon  the  question  of  value.  The 
bonus,  however,  according  to  the  terms  of  the  Act  of 
May  8, 1901,  is  payable  not  on  the  value  of  capital  stock, 
but  upon  the  amount  of  capital  actually  employed  in 
Pennsylvania,  and  the  inquiry  in  every  case  of  that  kind 
is  simply  as  to  the  amount  of  capital  employed  in  the 
State,  which,  as  a  general  rule  will  be  found  to  be  the 
actual  cost  or  value  of  the  property  within  the  limits  of 
the  State.  There  is  no  question  as  to  the  value  of  the 
corporate  franchise  of  a  foreign  corporation  in  ascer- 
taining the  basis  for  the  bonus  to  be  paid  in  Pennsyl- 
vania. The  franchise  of  the  corporation  has  been  grant- 
ed by  the  State  which  created  it,  and  we  cannot  tax  the 
value  of  a  franchise  or  consider  it  in  adjusting  the  bonus 
paid  for  the  privilege  of  doing  business  in  Pennsylvania. 

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136  COMMONWEALTH  v,  SCHWARZSCHILD,  Appel. 

Opinion  of  Court  below.  [259  Pa. 

The  bonus  upon  our  domestic  corporations,  while  nom- 
iuallj'  ascertained  by  the  amount  of  capital  stock,  does 
not  provide  for  any  inquiry  as  to  the  value  of  the  capital 
stock.  It  is  fixed  by  the  amount  of  authorized  capital 
and  is  payable  on  the  amount  originally  authorized  and 
upon  any  subsequent  increase  of  the  amount.  This  of 
course,  makes  the  nominal  value  of  capital  stock  the 
basis  for  the  bonus.  At  the  beginning  of  corporate  exist- 
ence the  amount  of  capital,  whether  contributed  in  cash 
or  in  property  is  the  amount  upon  which  the  bonus  is 
computed.  To  permit  fixing  the  value  of  capital  stock 
as  a  basis  for  the  bonus  to  be  paid  by  domestic  corpo- 
rations and  the  value  or  amount  of  capital  employed  in 
the  State  to  be  made  the  basis  for  the  bonus  of  a  foreign 
corporation  would  apparently  lead  in  some  cases  to  dis- 
criminations, which  we  cannot  presume  were  intended  to 
be  made  by  the  legislature.  The  language  of  the  Act  of 
1901  imposes  the  bonus  upon  the  amount  of  capital 
actually  employed  and  the  failure  to  provide  in  the  stat- 
ute any  inquiry  as  to  facts  from  which  the  value  of  capi- 
tal stock  could  be  accurately  ascertained,  as  also  the 
other  matters  herein  referred  to,  lead  us  to  adopt  that 
construction  of  the  act  which  makes  the  basis  for  the 
bonus  the  amount  of  property  employed  in  the  State. 
This  means  the  value  of  the  property  and  not  the  value 
of  stock  aided  by  franchises  and  other  matters  affecting 
value.  In  the  present  case  we  therefore  have  reached 
the  following 

CONCLUSION : 

The  amount  of  capital  employed  wholly  within  the 
State  by  the  defendant  company  was : 

Real  property, $180,951.60 

Merchandise, 163,066.69 

1344,018.29 

The  bonus  of  one-third  of  one 
per  cent,  upon  this  amount 
is $    1,146-72 


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COMMONWEALTH  v.  SCHWARZSCHILD,  Appel.  137 
1917.]      Opinion  of  Court  below — Opinion  of  the  Court. 
The    defendant    company    has 
paid  on  account  of  bonus 177.58 


Balance  of  bonus, I       969.14 

Interest  Nov.  25,  1911,  to  Nqv. 
17,1916, 288.86 

I    1,258.00 
Attorney     General's     commis- 
sion, 5  per  cent, 62.90 

Amount    now    due    Common- 
wealth,   I     1,320.90 

We,  therefore,  direct  that  judgment  be  entered  in 
favor  of  the  Commonwealth  and  against  the  defendant 
for  the  sum  of  |1,320.90,  unless  exceptions  be  filed  with- 
in the  time  limited  by  law. 

Exceptions  to  the  findings  were  dismissed  and  judg- 
ment was  entered  for  plaintiff.    Defendant  appealed. 

Error  assigned  was  in  dismissing  exceptions  to  vari- 
oos  findings  of  the  trial  judge. 

Paul  G.  Smith,  of  Snodgrass  d  Smith,  with  him  Jolm 
W.  Jacobs,  for  appellant. 

William  M.  Hargest,  Deputy  Attorney  General,  with 
him  Francis  Shunk  Brown,  Attorney  General,  for  the 
Commonwealth. 

Per  Curiam,  June  30, 1917 : 

The  correct  conclusion  of  the  learned  court  below  was 
that  the  bonus  imposed  by  the  Act  of  May  8, 1901,  P.  L. 
150,  is  upon  the  capital  or  property  of  a  foreign  corpora- 
tion actually  employed  within  this  State,  and  the  judg- 
ment is  affirmed,  on  the  opinion  directing  it  to  be  en- 
tered. 


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138  COAIilONWEALTH  v.  DOLL.Ul  SAV.  BANK,  Appel. 

Syllabus.  [259  Pa. 


Commonwealth  v.  Dollar  Savings  vBank,  Appel- 
lant. 

Constitutional  law — Constitution  of  United  States,  Fourteenth 
Amendment — Constitution  of  Pennsylvania,  Article  I,  Section  10; 
Article  III,  Sections  16  and  21 — Property  rights — Payment  of 
money  by  State  without  appropriation  —  Limitation  of  action 
against  corporation — Banks  and  banking  —  Deposits  —  Failure  to 
demand  money  within  thirty  years — Payment  to  State — Depositors 
right  against  State — Contract  subject  to  statute — Act  of  April  17, 
1872,  P.  L.  62—Validity-'Act  of  May  11,  1909,  P.  L.  619— Affida- 
vits of  defense — Insufficient  averments, 

1.  Every  sovereign  state  has  jurisdiction  to  take  charge  of  ap- 
parently abandoned  or  unclaimed  property. 

2.  The  Act  of  April  17,  1872,  P.  L.  62,  providing  that  *Vhere 
any  depositor  with  any  savings  fund,  savings  institution  or  savings 
bank  whatsoever,  or  his  legal  representatives,  shall  omit  to  make 
any  demand  for  the  amount  deposited  by  him,  or  for  any  part 
thereof,  for  the  space  of  thirty  years  after  the  last  deposit  or  pay- 
ment was  made  by  or  to  him" such  funds  shall  be  paid  by  the 

bank  to  the  State  and  thereafter  the  depositor  may  recover  same 
from  the  State,  does  not  violate  the  Fourteenth  Amendment  of  the 
Constitution  of  the  United  States,  or  the  lOtli  Section  of  Article  I 
of  the  Constitution  of  Pennsylvania  in  that  it  deprives  a  person 
of  property  without  due  process  of  law,  the  rights  of  the  depositor 
being  amply  protected  by  giving  him  a  cause  of  action  against  the 
Conmionwealth,  which,  because  of  its  power  of  taxation,  is  always 
solvent  and  the  best  of  security. 

8.  A  court  will  never  heed  objections  to  the  constitutionality  of 
an  act  of  assembly  unless  the  complainants  are  afFected  by  the 
particular  feature  alleged  to  be  in  conflict  with  the  Constitution. 

4.  In  an  action  by  the  Commonwealth  against  a  banking  insti- 
tution to  recover  deposits  in  its  hands  after  thirty  years  have 
elapsed  from  the  last  addition  to  or  payment  therefrom  it  will  be 
presumed,  in  the  absence  of  an  averment  to  the  contrary  in  the 
affidavits  of  defense,  that  all  the  deposits  in  controversy  were  made 
subsequent  to  the  passage  of  the  Act  pf  1872,  and  that  the  respec- 
tive depositors  acted  with  full  knowledge  of  the  provisions  of  said 
act,  and  in  view  of  such  presumption  there  is  no  merit  in  the  con- 
tention that  the  act  is  defective  in  failing  to  provide,  as  in  the 
case  of  an  escheat,  for  notice  by  puElication  or  otherwise  to  the 
owner. 


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COMMONWEALTH  v.  DOLLAR  SAV.  BANK,  Appel.  139 
1917.]  Syllabus— SUtement  of  Facts. 

5.  In  such  case  the  contract  of  a  depositor  must  be  treated  as 
subject  to  the  terms  of  the  Act  of  1872,  and  the  proceeding  is 
therefore  not  an  impairment  of  the  obligations  of  the  contract 

6.  The  question  whether  the  failure  of  the  Act  of  1872  to  permit 
a  depositor  to  claim  interest  from  the  State  renders  the  act  in- 
valid, can  be  raised  only  by  the  depositor  and  not  by  the  bank  in 
an  action  against  it  by  the  Commonwealth. 

7.  The  Act  of  1872  is  not  contraiy  to  Article  III,  Section  16  of 
the  Constitution  of  Pennsylvania  in  that  it  attempts  to  authorize 
the  payment  of  money  by  the  State  treasurer  without  special  appro- 
priation. Such  provision  of  the  Constitution  simply  means  that 
the  public  funds  are  not  to  be  expended  in  any  way  except  as  di- 
rected by  the  law-making  power,  and  does  not  intend  to  prevent 
the  legislature  from  providing  a  special  fund  to  be  paid  out  in  a 
designated  manner,  or  to  prevent  the  law-making  power  from 
pledging  unappropriated  funds  for  the  return  of  moneys  taken  into 
the  custody  of  the  State  under  such  act,  concerning  which  the 
Commonwealth  asserts  no  right  or  title  paramount  to  that  of  the 
original  owner. 

7.  The  Act  of  May  11, 1909,  P.  L.  619,  does  not  impliedly  repeal 
the  provisions  for  repayment  contained  in  the  Act  of  1872. 

8.  The  Act  of  1872  applies  to  all  banking  institutions,  whether 
incorporated  or  otherwise,  and  is  not  a  statute  of  limitations  but 
rather  an  enactment  for  the  protection  of  a  savings  bank  against 
liability  after  it  has  paid  over  a  deposit  to  the  State  treasurer,  and 
such  act  is  not  therefore  violative  of  Article  III,  Section  21  of  the 
Constitution  of  Pennsylvania  in  that  it  prescribes  a  limitation  of 
time  within  which  an  action  may  he  brought  against  a  corporation 
different  from  the  general  laws  regulating  actions  against  natural 
I>er8on8. 

Argued  May  21,  1917.  Appeal,  No.  3,  May  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Dauphin  Co.,  Sept. 
T.,  1914,  No.  296,  for  plaintiff  for  want  of  a  sufficient 
affidavit  of  defense  in  case  of  Commonwealth  of  Penn- 
sylvania V.  The  Dollar  Savings  Bank.  Before  Brown, 
C.  J.,  Mbstrbzat,  Potter,  Stewart,  Moschziskbr,  Fra- 
ZER  and  Walling,  J  J.    Affirmed. 

Assumpsit  against  savings  bank  to  recover  unclaimed 
deposits  under  Act  of  April  17, 1872,  P.  L.  62. 

From  the  record  it  appeared  that  the  Act  of  April  17, 
1872,  P.  L.  62,  construed  in  the  following  opinion  of  the 


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140  COMMON^^EALTH  v.  DOLLAR  SAV.  BANK,  Appel. 
Statemeut  of  Facts.  [259  Pa. 

Supreme  Courts  is  entitled,  "An  act,  relating  to  un- 
claimed deposits  in  savings  banks,  and  transfer  of  stock." 
Section  1  refers  to  management  and  is  not  material  to 
this  case.  Section  2  reads  as  follows :  "That  where  any 
depositor  with  any  savings  fund,  savings  institution  or 
savings  bank  whatsoever,  or  his  legal  representatives, 
shall  omit  to  make  any  demand  for  the  amount  deposited 
by  him,  or  for  any  part  theiHiof,  for  the  space  of  thirty 
years  after  the  last  deposit  or  payment  was  made  by  or 
to  him,  or  his  said  representatives,  no  action  or  suit  shall 
thereafter  be  brought  or  maintained  by  him  or  them,  for 
the  amount  of  such  deposit,  against  such  corporation, 
but  the  same  shall  be  paid  over  instead  to  the  State 
treasurer  for  the  use  of  the  State :  Provided,  That  no  one 
now  having  any  such  right  of  action  shall  be  so  barred, 
until  the  expiration  of  one  year  from  the  passage  of  this 
act:  And  Provided,  That  it  shall  be  lawful  for  such  de- 
positor or  his  legal  representatives,  at  any  time  after 
the  amount  of  his  dei)osit  shall  have  been  paid  over  into 
the  treasury  of  the  Commonwealth  as  aforesaid,  to  in- 
stitute and  prosecute  an  action  of  debt  therefor,  against 
the  State  treasurer  for  the  time  being,  in  the  Court  of 
Common  Pleas  for  Dauphin  County;  and  on  the  re- 
covery of  judgment  in  such  action,  it  shall  be  lawful  for 
the  court  to  issue  thereon  a  writ,  commanding  such  State 
treasurer,  or  his  successor  in  office,  to  cause  the  amount 
thereof,  with  costs,  but  without  interest,  to  be  paid  to 
the  party  entitled  in  the  judgment,  out  of  any  unappro- 
priated moneys  in  the  hands  of  the  State  treasurer,  or 
if  there  be  no  such  moneys  unappropriated,  then  out  of 
the  first  moneys  that  shall  be  received  by  him,  and  to 
enforce  obedience  to  such  writ  by  attachment,  as  is  pro- 
vided by  law,  in  respect  to  actions  against  counties  and 
townships."  Section  3:  "It  shall  be  the  duty  of  the 
treasurer  or  cashier  of  every  incorporated  savings  fund 
institution  or  bank  in  this  Commonwealth,  on  or  before 
the  first  day  of  November,  in  each  year  after  the  pres- 
ent, to  make  returns  to  the  auditor  general,  of  the 


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COJIMONWEALTH  v,  DOLLAR  SAV.  BANK,  Appel.  141 
1917.]  Statement  of  Facts — ^Arguments. 

amount  of  all  such  unclaimed  deposits  as  referred  to  in 
the  previous  section  of  this  act,  with  the  names  and  resi- 
dences of  the  dei)ositors,  so  far  as  known,  and  before  the 
first  day  of  January,  then  next  ensuing,  pay  oVer  the 
amounts  so  returned  to  the  State  treasurer,  whose  re- 
ceipt therefor  shall  be  a  full  and  sufficient  discharge  to 
such  saving  fund  institution  or  bank,  from  any  further 
liability  to  any  such  depositor."  Section  4  provides  for 
the  issuing  of  certificates  of  stock  by  savings  banks  hav- 
ing a  capital  stock,  and  is  not  material  to  this  case. 

The  lower  court  entered  judgment  against  the  defend- 
ant for  want  of  a  sufficient  affidavit  of  defense.  Defend- 
ant appealed. 

Error  assigned  was  in  entering  judgment  for  plaintiff. 

Oeorge  C.  Burgwin,  of  7/.  cf  G.  C.  Burgwitiy  with  him 
James  A.  Stranahan,  for  appellant. — The  Act  of  April 
17, 1872,  P.  L.  62,  violates  Article  III,  Section  21  of  the 
Constitution  of  Pennsylvania  and  is  void :  Bank  of  U. 
S.  V.  Biddle  &  Andrews,  2  Parsons  Eq.  Cases  31 ;  Second 
Nat.  Bank  of  Titusville  v.  Thompson,  44  Pa.  Superior 
Ct  200;  Girard  Bank  v.  Bank  of  Penn  Township,  39 
Pa.  92;  Baker  et  ux.  v.  Kelley,  11  Minn.  480;  Keyser  v. 
Lowell,  117  Fed.  Repr.  400 ;  Kulp  v.  Brant,  162  Pa.  222 ; 
Sproul  V.  Standard  Plate  Glass  Co.,  201  Pa.  103;  In  re 
Grape  Street,  103  Pa.  121 ;  Cole  v.  Economy  Township, 
13  Pa.  C.  C.  549. 

The  Act  of  1872  is  violative  of  Article  III,  Section.  16 
of  the  Constitution  of  Pennsylvania,  in  that  it  authorizes 
the  payment  of  money  out  of  the  State  treasury  but 
makes  no  appropriation  to  meet  such  expenditure :  Com- 
monwealth ex  rel.  Bell  v.  Powell,  249  Pa.  144. 

The  Act  of  1872  violates  the  Fourteenth  Amendment  of 
the  Constitution  of  the  United  States  and  the  10th  feec- 
tion  of  Article  I  of  the  Constitution  of  Pennsylvania  in 
that  it  deprives  a  person  of  property  without  due  process 
of  law:  Provident  Institution  for  Savings  in  Town  of 


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142  COMMONWEALTH  v.  DOLLAR  SAV.  BANK,  AppeL 

Arguments.  [259  Pa. 

Boston  V.  Malone,  221  U.  S.  660;  City  of  Philadelphia 
T.  Miller,  49  Pa.  440 ;  CunniuB  v.  Beading  School  Dist, 
198  U.  8.  458. 

Notice,  actual  or  constructiye,  is  the  absolute  essential 
in  statutes  of  this  character :  Craig  v.  Kline,  15  Pa.  399 ; 
Alton's  Est.,  220  Pa.  258. 

The  defendant  bank  has  the  right  to  raise  the  question 
of  the  constitutionality  of  the  act :  Provident  Institution 
for  Savings  in  Town  of  Boston  v.  Malone,  221  U.  S.  660. 

John  R.  Qeycr,  of  Fax  &  Oeyer,  with  him  W.  I.  Swoope 
and  J.  B.  Eichenauer,  for  appellee. — The  Act  of  1872 
does  not  operate  to  deprive  a  person  of  property  without 
due  process  of  law  or  take  private  property  for  public 
use  without  compensation:  Provident  Institution  for 
Savings  in  Town  of  Boston  v.  Malone,  221  U.  S.  660; 
Pittsburgh  v.  Scott,  1  Pa.  309 ;  Delaware  County's  App., 
119  Pa.  159;  Blackstone  v.  Miller,  188  U.  S.  189. 

The  State  has  jurisdiction  to  take  charge  of  and  care 
for  abandoned  or  unclaimed  property :  Cunnius  v.  Read- 
ing School  District,  198  U.  S.  458. 

The  Act  of  1872  is  not  a  statute  of  limitations  and  ap- 
plies to  unincorporated  banking  institutions  as  well  as 
those  incorporated,  and  consequently  does  not  violate 
the  constitutional  prohibition  against  prescribing  a  limi- 
tation of  time  for  bringing  actions  against  corporations 
different  from  the  general  laws  regulating  actions 
against  natural  persons :  Opinion  of  the  Attorney  Gen- 
eral in  BulFs  Est.,  11  Pa.  C.  C.  441;  In  re  Sixpenny 
Saving  Society,  28  Pa.  C.  C.  627. 

The  Act  of  1872  does  not  violate  the  constitutional  pro- 
hibition against  payment  by  the  State  treasurer  unless 
on  specific  appropriation,  the  Constitution  merely  mean- 
ing that  public  funds  are  not  to  be  expended  in  any  way 
except  as  directed  by  the  law-making  power :  Common- 
wealth ex  reL  Bell  v.  Powell,  249  Pa.  144;  Common- 
wealth ex  rel.  Atty.  General  v.  Griest,  196  Pa.  396. 

Defendant  bank  has  no  standing  to  raise  the  question 


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COMMONWEALTH  v.  DOLLAR  SAV.  BANK,  Appel.  143 
1917.]  Arguments — Opinion  of  the  Court 

of  the  constitutionality  of  the  Act  of  1872,  the  depositors 
being  the  real  parties  in  interest :  Plymouth  Coal  Co.  v. 
Com.  of  Penna.,  232  U.  S.  531 ;  Beed  v.  Home  Savings 
Bank,  130  Mass.  443 ;  Essex  Public  Boad  Board  v.  Shin* 
kle,  140  U-  S.  334;  Lampasas  v.  Bell,  180  U.  S.  276; 
Bradley  v.  Richmond,  227  U.  S.  477. 

Opinion  by  Mb.  Justics  Mosghziskbb,  June  30^  1917 : 

The  Commonwealth  of  Pennsylvania  sued  the  Dollar 
Savings  Bank,  of  Pittsburgh,  to  recover  the  sum  of  |9,- 
069.29,  with  interest  from  December  1, 1913,  which  it  al- 
leged was  the  aggregate  of  moneys  placed  in  that  insti- 
tution by  twenty-four  depositors  "who  had  omitted  to 
make  any  demand  for  the  amount  deposited  by  them,  or 
for  any  part  thereof,  for  the  space  of  thirty  years  after 
the  last  deposit  was  made.'^  Plaintiflf  averred  that, 
under  the  Act  of  April  17, 1872,  P.  L.  62,  it  was  the  duty 
of  the  defendant  to  pay  these  deposits  to  the  treasurer 
of  the  Commonwealth.  Judgment  was  entered  for  want 
of  a  sufficient  affidavit  of  defense,  and  the  savings  bank 
appealed. 

In  addition  to  certain  purely  legal  defenses,  the  affi- 
davits of  defense  allege  that  twelve  of  the  twenty-four 
depositor  named  in  plaintifiTs  statement,  subsequent  to 
the  expiration  of  the  before-mentioned  period  of  thirty 
years,  had  either  added  to,  subtracted  from,  or  with- 
drawn the  entire  amount  of  their  respective  accounts, 
totaling  16,312.13.  The  Commonwealth  filed  an  amended 
statement  striking  out  all  deposits  as  to  which  the  bank 
had  entered  a  defense  on  the  merits,  and  reducing  the 
amount  claimed  to  |2,757.16. 

The  legal  defenses  are  as  follows:  (1)  The  Act  of 
1872,  supra,  relied  upon  by  plaintiff,  "violates  the  Four- 
teenth Amendment  of  the  Constitution  of  the  United 
States  and  the  10th  Section  of  Article  I  of  the  Constitu- 
tion of  Pennsylvania,  in  that  it  deprives  a  person  of 
property  without  due  process  of  law'^;  (2)  The  act  "is 
contrary  to  Article  III,  Section  16,  of  the  Constitution 


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144  COMMOxNWEALTH  v.  DOLLAR  SAV.  BANK,  Appel. 
Opinion  of  the  Court.  [259  Pa. 

of  Pennsylvania,  in  that  it  attempts  to  authorize  the  pay- 
ment of  money  by  the  State  treasurer  without  special  ap- 
propriation";  (3)  The  act  "violates  Article  III,  Section 
21,  of  the  Constitution  of  Pennsylvania,  in  that  it  pre- 
scribes a  limitation  of  time  within  which  an  action  may 
be  brought  against  a  corporation  diflferent  from  the  gen- 
eral laws  regulating  actions  against  natural  persons." 

In  disposing  of  the  first  of  the  above  propositions,  we 
must  keep  in  mind  that  the  statute  here  in  question  is 
not  an  escheat  act.  In  other  words,  it  does  not  provide 
for  seizing  property  presumed  to  be  without  an  owner, 
but  rather  for  the  taking  into  possession  by  the  sovereign 
Commonwealth,  for  the  protection  of  both  State  and 
owner,  of  a  certain  class  of  property  which  is  subject  to 
escheat.  The  act  requires  that,  in  all  cases  where,  for  a 
period  of  thirty  years,  any  person  has  failed  to  exercise 
rights  of  ownership  over  a  savings  fund  deposit,  the 
amount  thereof  shall  be  handed  to  the  State  treasurer, 
whose  receipt  it  declares  a  sufficient  protection  to  the 
prior  custodian.  The  rights  of  the  owner  are  amply  pro- 
tected by  giving  him  a  cause  of  action  against  the  Com- 
monwealth, with  full  provision  for  legal  proceedings  and 
final  process,  under  which  either  he  or  his  legal  repre- 
sentatives may  recover  the  amount  of  the  deposit  upon 
proof  of  identity.  This  is  neither  depriving  the  deposi- 
tor of  his  property  nor  taking  it  for  public  use  within 
the  meaning  of  either  the  federal  or  state  constitutions. 

The  portion  of  the  Fourteenth  Amendment  to  the  Con- 
stitution of  the  United  States  depended  upon  by  defend- 
ant is  as  follows :  "Nor  shall  any  state  deprive  any  i)er- 
son  of  life,  liberty,  or  property  without  due  process  of 
law" ;  and  the  relevant  part  of  the  Constitution  of  Penn- 
sylvania reads  thus:  "Nor  shall  private  property  be 
taken  or  applied  to  public  use,  without  authority  of  law 
and  without  just  compensation  being  first  made  or  se- 
cured." While,  by  operation  of  the  Act  of  1872,  supra, 
right  of  action  against  the  depositary  is  taken  away,  yet 
this  is  no  substantial  deprivation  to  the  owner  of  the  de- 


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COMMONWEALTH  v.  DOLLAR  SAV.  BANK,  Appel.  145 
1917.]  Opinion  of  the  Court. 

posit,  for  instead  of  that  right,  as  soon  as  his  money 
is  turned  over  to  the  State  treasurer,  he  is  afforded  an 
action  against  the  Commonwealth  and  provided  with  a 
court  in  which,  without  limitation  of  time,  he  may  prove 
his  claim.  True,  the  act  says  that  the  deposit  shall  be 
paid  "to  the  State  treasurer  for  the  use  of  the  State,"  but 
it  also  specially  provides  that,  when  claimed  by  the  de- 
positor or  his  legal  representatives,  the  amount  proved 
shall  be  paid  over  to  the  party  entitled  thereto  "out  of 
any  unappropriated  moneys  in  the  hands  of  the  State 
treasurer,  or  if  there  be  no  such  moneys  unappropriated, 
then  out  of  the  first  moneys  that  shall  be  received  by 
him" ;  which,  in  effect,  is  a  dedication,  so  far  as  may  be 
necessary,  of  all  unappropriated  moneys  in  the  State 
treasury  to  the  purpose  of  satisfying  duly  proved  claims 
under  this  act.  Since  the  State,  with  its  power  of  tax- 
ation, is  always  solvent,  it  would  be  impossible  to  give 
better  security. 

The  act  before  us  does  not,  in  so  many  words,  say  that 
a  savings  fund  deposit  which  for  thirty  years  has  been 
entirely  neglected  by  its  owner  shall  be  presumed  to  have 
been  abandoned,  but  it  is  plain  that  such  is  the  theory 
upon  which  the  legislation  rests;  and  it  is  well  estab- 
lished that  every  sovereign  state  has  jurisdiction  to  take 
charge  of  apparently  abandoned  or  unclaimed  property : 
Cunnius  v.  Beading  School  District,  206  Pa.  469 ;  s.  c, 
198  U.  S.  458;  Attorney  General  v.  Provident  Institu- 
tion for  Savings  in  Town  of  Boston,  201  Mass.  23 ;  s.  c, 
221  U.  S.  660.  When,  as  here,  such  property  is  taken  in 
charge  by  the  State,  and  the  owner  or  his  legal  represen- 
tatives are  given  an  unlimited  right  to  reclaim,  with  a 
pledge  of  all  unappropriated  moneys  in  the  public  treas- 
ury, so  far  as  may  be  necessary,  to  repay  the  amount 
thereof  when  duly  proved,  this  is  simply  an  exercise  of 
authority  over  property  actually  within  the  jurisdiction 
of  the  State,  and  liable  to  escheat,  for  the  due  protection 
of  all  parties  in  interest,  including  the  owner;  and  is  in 
no  sense  a  taking  or  seizing  for  public  use  within  the 
Vol,  ccux— 10 


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146  COMMONWEALTH  v.  DOLLAR  SAV.  BANK,  AppeL 
Opinion  of  the  Court.  [269  Pa. 

meaning  of  the  constitutional  provisions  relied  upon  in 
this  case. 

Generally  speaking,  when  property  is  taken  under  an 
out-and-out  escheat  act  or  when  the  State  provides  a 
method  of  transferring  to  otliers  property  of  a  citizen 
who  has  been  unheard  of  for  a  given  period  of  time,  some 
form  of  notice  to  the  owner,  by  publication  or  otherwise, 
is  required  to  make  the  proceedings  in  question  ^'due 
process  of  law" ;  defendant  contends  that  this  rule  ap- 
plies in  the  present  instance,  and,  since  the  legislation 
under  attack  does  not  provide  for  any  such  notice  to  de- 
positors affected  through  its  operations,  defendant  in- 
sists that  in  this  respect  the  Act  of  1872,  supra,  is  fatally 
defective.  Conceding,  for  the  sake  of  argument,  defendant 
has  a  right  to  raise  this  constitutional  point,  yet,  in  so 
contending,  it  speaks  only  on  behalf  of  the  depositors 
whose  money  is  being  transferred  to  the  State  treasury, 
since  the  bank  itself  received  due  and  formal  notice  of  the 
present  proceedings.  When  the  case  is  viewed  from  the 
standpoint  of  these  depositors,  then  the  rule  applies  that 
"a  court  will  never  heed  objections  to  the  constitutional- 
ity of  an  act  of  assembly  unless  the  complainants  are 
affected  by  the  particular  feature  alleged  to  be  in  con- 
flict with  the  Constitution^' ;  furthermore,  it  is  always 
essential  for  a  complainant  to  show  that  he  occupies 
such  a  position :  Mesta  Machine  Co.  v.  Dunbar  Furnace 
Co.,  250  Pa.  472,  476.  On  the  pleadings  at  bar,  there 
being  no  averment  to  the  contrary  in  the  affidavits  of 
defense,  we  must  assume  all  the  deposits  in  controversy 
to  have  been  made  subsequent  to  1872 ;  and,  hence,  that 
the  respective  dei)ositors  acted  with  full  knowledge  of 
the  provisions  of  the  statutes  passed  in  that  year.  This 
being  so,  since  the  proceedings  on  the  part  of  the  State 
to  obtain  possession  of  these  deposits  were  not  instituted 
for  the  purpose  of  declaring  an  escheat  or  of  passing  the 
property  in  question  over  to  another,  in  short,  were  not 
in  antagonism  to  the  owners,  but  for  their  benefit,  there 
exists  no  absolute  necessity  for  any  form  of  notice  to 


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COMMONWEALTH  v.  DOLLAR  SAV.  BANK,  AppcLUT 
1917.]  Opinion  of  the  Court 

Buch  owiien%  as  the  latter  are  presumed  to  know  that, 
after  expiration  of  the  thirty-year  period,  the  Common- 
wealthy  at  any  time,  may  take*over  the  custody  of  their 
deposits  in  the  manner  provided  by  the  act  dealing  with 
the  subject  in  hand. 

Before  leaving  this  branch  of  the  case,  albeit  defend- 
ant does  not  raise  the  point,  it  may  be  well  to  suggest 
that,  since  the  deposits  in  controversy  were  all  made  sub- 
sequent to  the  Act  of  1872,  supra,  in  each  instance  the 
contract  of  the  depositary  must  be  treated  as  subject  to 
the  terms  of  the  statute  here  in  question ;  therefore,  the 
present  proceedings  can  in  no  sense  be  said  to  constitute 
an  impairment  of  the  obligation  of  these  contracts. 
Finally,  the  fact  that,  under  the  Act  of  1872,  supra,  a 
dq>ositor  may  not  claim  interest  from  the  State,  does 
not  present  a  subject  which  calls  for  consideration  at 
this  time;  ^^this  is  a  matter  with  which [the  de- 
fendant]   is  not  concerned,  and  can  arise  only  be- 
tween the  State  and  the  claimant  when  he  asserts  [his] 

right  [of] property":    Provident  Savings 

Institution's  Case,  221  U.  S.  660,  665. 

Defendant's  second  proposition  rests  upon  the  provi- 
sion of  the  Constitution  of  Pennsylvania  to  the  effect 
that  ^^no  money  shall  be  paid  out  of  the  treasury,  except 
upon  appropriations  made  by  law,  and  on  warrant 
drawn  by  the  proper  officer  in  pursuance  thereof."  We 
recently  had  occasion  to  construe  this  section  in  Comm. 
ex  rel.  Bell  v.  Powell,  249  Pa.  144,  156,  and  there  said, 
it  ''simply  means  that  the  public  funds  are  not  to  be 
expended  in  any  way  except  as  directed  by  the  law-mak- 
ing power."  It  was  not  the  intention  thereby  to  prevent 
the  legislature  from  providing  a  special  fund  to  be  paid 
out  in  a  designated  manner,  or  to  prevent  the  law-making 
power  from  pledging  unappropriated  funds  for  the  re- 
turn of  moneys  taken  into  the  custody  of  the  State  under 
an  act  such  as  the  one  at  bar,  and  concerning  which 
money  the  State  asserts  no  right  or  title  paramount  to 
that  of  the  original  owner.     As  to  the  Act  of  Mar  11, 


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148  COMMONWEALTH  v.  DOLLAR  SAV.  BANK,  Appel. 
Opinion  of  the  Court.  [259  Pa. 

1909,  P.  L.  519,  it  ifl  sufficient  to  say,  we^  are  not  con- 
vinced that  it  impliedly  repeals  the  provisions  for  re- 
payment contained  in  the  Act  of  1872,  supra ;  the  later 
act  was  not  intended  to  apply  to  circumstances  such  as 
there  covered  by  the  earlier  one. 

The  third  proposition  relied  upon  by  the  defendant  in- 
volves a  consideration  of  that  portion  of  the  Constitu- 
tion of  Pennsylvania  which  provides  that  ^^no  act  shall 
prescribe  any  limitations  of  time  within  which  suits  may 

be  brought  against  corporations different  from 

those  fixed  by  general  laws  regulating  actions  against 
natural  persons,  and  such  acts  now  existing  are 
avoided/'  In  entering  upon  this  branch  of  the  case,  it 
may  be  well  to  notice  that  the  title  of  the  statute  here 
before  us  gives  no  suggestion  that  the  act  is  intended  to 
apply  solely  to  incorporated  institutions ;  it  is  entitled, 
"An  act,  relating  to  unclaimed  deposits  in  savings  banks 
,"  and,  while  other  sections  make  reference  to  in- 
corporated banks  and  savings  funds,  or  "savings  banks 
having  a  capital  stock,"  yet  Section  2,  which  controls 
the  present  case,  is  written  in  language  broad  enough  to 
comprehend  all  such  institutions,  whether  incorporated 
or  otherwise.  It  reads  as  follows :  "Where  any  deposi- 
tor with  any  savings  fund,  savings  institution  or  sav- 
ings bank  whatsoever shall  omit  to  make  any  de- 
mand,'' etc.  True,  later  on,  this  section  contains  the 
provision  that,  after  thirty  years,  no  suit  may  be  insti- 
tuted or  maintained  "for  the  amount  of  such  deposit, 
against  such* corporation" ;  but  it  is  argued  by  plaintiff 
that  the  word  "corporation"  is  here  used  in  "a  generic 
sense to  cover  unincorporated  as  well  as  incor- 
porated" savings  institutions.  It  is  not  necessary  to  de- 
cide this  point,  however,  for  we  are  convinced  the  court 
below  expressed  a  proper  view  of  the  matter  in  the  fol- 
lowing excerpt  from  its  opinion :  'We  do  not  look  upon 
this  provision  of  the  statute  [Act  of  1872,  supra]  as  a 
statute  of  limitations  strictly  so  called,  such  as  was  in- 
tended to  be  avoided  by  Section  21  of  Article  III  of  the 


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COMilOXWEALTH  v.  DOLLAR  SAV.  BANK,  AppeL  149 
1917.]  Opiniou  of  the  Court. 
Constitution,  but  rather  as  an  enactment  for  the  pro- 
tection of  the  savings  banks  against  liability  after  it  has 
paid  over  the  deposit  to  the  State  treasurer.  The  stat- 
ute takes  away  the  remedy  of  the  depositor  against  the 
bank,  and  substitutes  for  it  the  remedy  against  the  State 
treasurer  and  the  Commonwealth  which  has  received  the 
deposit.  But,  be  that  as  it  may,  the  other  provision  in 
the  statute  amply  protects  the  savings  bank.  In  the 
second  section,  it  is  provided  that  the  State  treasurer's 
receipt  shall  be  a  full  and  sufficient  discharge  of  the  sav- 
ings bank  from  any  further  liability  to  the  depositor. 
Both  provisions were  intended  to  protect  the  sav- 
ings bank;  so  even  if  the  first be  avoided it 

still  has  full  protection  in  the  effect  which  the  statute 
directs  shall  be  given  to  the  receipt  of  the  State  treas- 
urer." In  other  words,  even  if  it  be  conceded  that,  after 
the  lapse  of  thirty  years,  the  depositor  or  his  legal  repre- 
sentatives might  still  have  a  right  to  sue  the  bank,  yet, 
since  the  State  has  full  jurisdiction  to  take  over  the 
custody  of  apparently  abandoned  property,  the  receipt 
of  its  treasurer,  when  produced,  by  the  defendant  bank, 
would  be  a  sufficient  answer  to  such  an  action;  hence, 
the  bank  cannot  be  in  any  wise  prejudiced  by  the  alleged 
unconstitutionality  of  the  limitation.  Then  again,  it  is 
to  be  noticed  that,  even  after  thirty  years,  the  Act  of 
1872,  supra,  does  not  deprive  a  depositor  of  either  his 
remedy  or  right  of  action,  but  simply  transfers  the  lia- 
bility to  him  from  the  original  depositary  to  the  Com- 
monwealth of  Pennsylvania. 

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


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150        G£:TJ1IN,  Appellant,  v.  PENNA.  R.  B.  CO. 

Syllabufl— SUtemcut  of  Facto.  [259  Fa. 


Oetkin^  Appellant,  v.  Pennsylvania  Railroad  Com- 
pany. 

Railroads — Relief  fund — Death  benefits — Suit  at  law — Recovery 
— Satisfaction^— Subsequent  claim  against  relief  fund — Affidavits 
of  defense — Sufficiency — Act  of  Congress  of  April  22,  1908. 

1.  A  regulation  of  a  relief  association  of  a  railroad  company 
providing  that  the  recoveiy  of  a  judgment  in  a  suit  for  damages 
on  acooimt  of  injury  or  death  of  a  member  shall  preclude  any 
claim  upon  the  relief  fund  for  benefits  on  account  of  such  injury 
or  death,  is  valid;  and  where  a  widow  has  recovered  a  judgment 
against  the  railroad  company  for  the  death  of  her  husband  she  can- 
not thereafter  assert  a  daim  against  the  railroad  relief  fund,  and 
an  affidavit  of  defense  setting  up  such  regulation  as  a  bar  to  such 
action  is  sufficient 

2.  In  subh  case  the  Act  of  CSongress  of  April  22,  1908,  85  Stat- 
utea-at-large  65,  c.  149,  No.  5,  providing  that  any  ''contract^  rule, 
regulation  or  device  whatooever,  the  purpose  or  intent  of  which 
shall  be  to  enable  any  common  carrier  to  exempt  itself  from  any 
liability  created  by  this  act,  shall,  to  that  extent,  be  void,"  is  not 
applicable^  such  act  not  intending  that  there  should  be  both  a  pay- 
ment of  benefito  and  a  recovery  of  damages  for  the  injury,  at  least 
in  80  far  as  payments  for  both  are  to  be  made  by  the  same  defend- 
ant. 

8.  In  such  case,  had  plaintiff  received  payment  of  the  benefit 
certificate  prior  to  bringing  suit  for  damages,  the  stipulation  in 
the  contract  of  membership  in  the  relief  fund  could  not  have  been 
permitted  to  defeat  the  right  to  recover  damages,  but  defendant 
would  have  been  entitled  to  set  off  the  simi  it  had  so  paid  the 
plaintiff. 

Argued  May  21,  1917.  Appeal,  No.  2,  May  T.,  1917, 
by  plaintiff,  from  judgment  of  C.  P.  Dauphin  Co.,  Jan. 
T.,  1915,  No.  631,  refusing  plaintiff's  motion  fop  judg- 
ment for  want  of  a  sufficient  affidavit  of  defense  in  case 
of  Ella  Getkin  v.  Pennsylvania  Railroad  Company.  Be- 
fore Brown,  C.  J.,  Mbstrezat,  Potter,  Stewart, 
MoscHZiSKSiR,  Frajzbr  and  Walung^  JJ.    Affirmed. 


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GETKIN,  Appellant,  v.  PENNA.  R.  R.  CO.  151 
1917.]       Assignment  of  Errors — Opinion  of  the  Court. 

Aflsompsit  on  a  railroad  relief  association  certificate 
to  recover  death  benefits. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

The  lower  court  refused  plaintiff's  motion  for  judg- 
ment for  want  of  a  sufficient  affidavit  of  defense.  Plain- 
tiff appealed. 

Error  assigned,  among  others,  was  in  refusing  plain- 
tiff's motion  for  judgment  for  want  of  a  sufficient  affi- 
davit of  defense. 

William  M.  Hain  and  William  Jf .  Hargest,  for  appel- 
lant.— ^Plaintiff  was  entitled  to  judgment  for  want  of  a 
sufficient  affidavit  of  defense :  Act  of  Congress  of  April 
22, 1908, 35  Statute-at-large  65,  c.  149,  No.  5. 

The  regulations  of  the  relief  department  of  the  defend- 
ant in  denying  liability  upon  benefit  certificates  where 
suits  are  brought  are  in  violation  of  the  Act  of  Congress 
of  1908:  Johnson  v.  Philadelphia  &  Beading  B.  B.  Co., 
163  Pa.  127;  Bingle  v.  Penna.  B.  B.  Co.,  164  Pa.  529; 
Hartman  v.  Chicago,  Burling.  &  Quincy  B.  B.  Co.,  182 
S.  W.  Bepr.  148. 

C.  jar.  Bergner,  with  him  Spencer  OHhert  No/uman  and 
J.  E.  B.  Cunningham,  for  appellee. — The  regulation  of 
defendant  relief  association  to  the  effect  that  recovery 
cannot  be  had  against  the  defendant  on  the  benefit  cer- 
tificate after  recovery  of  judgment  against  the  defend- 
ant, is  valid :  Johnson  v.  Philadelphia  &  Beading  B.  B.  Co., 
163  Pa.  127;  Beck  v.  Penna.  B.  B.  Co.,  63  N.  J.  L.  232 
(43  Atl.  908) ;  Pittsburgh,  Cin.,  Chgo.  &  St.  Louis  B.  B. 
Co.  V.  Moore,  152  Ind.  345  (53  N.  E.  Bepr,  290) ;  Beese 
V.  Penna.  E.  B.  Co.,  229  Pa.  340;  Mondou  v.  N.  Y.,  New 
Haven  &  Hartford  B.  B.  Co.,  223  U.  S.  1. 

Opinion  by  Mb.  Justice  Pottbb,  June  30, 1917: 
This  is  an  appeal  from  the  refusal  of  the  court  below 
to  enter  judgment  for  want  of  a  sufficient  affidavit  of  de- 
fense. 


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152        GETKIN,  Appellant,  v.  PENNA.  R.  R.  CO. 

Opinion  of  the  Court.  [259  Pa. 

Plaintiff,  who  was  the  widow  of  David  Gtetkin,  an  en- 
gineer in  the  employ  of  defendant  at  the  time  of  hia 
death,  declared  on  a  certificate  of  membership  in  the 
Voluntary  Belief  Department  of  the  defendant  company, 
and  claimed  to  recover,  as  the  beneficiary  named  in  such 
certificate,  the  sum  of  |2,250  as  a  death  benefit.  She 
averred  that  all  the  terms  and  conditions  of  the  certifi- 
cate had  been  complied  with  and  that,  on  October  21, 
1912,  her  husband,  while  in  the  performance  of  his  duty 
as  a  passenger  engineer  on  one  of  defendant's  trains 
which  was  engaged  in  interstate  commerce,  was  killed 
under  circumstances  involving  negligence  on  the  part  of 
defendant.  She  further  averred  that,  as  administratrix 
of  her  husband,  she  had,  on  October  9, 1913,  brought  an 
action  of  trespass  against  defendant,  in  the  District 
Court  of  the  United  States  for  the  Middle  District  of 
Pennsylvania,  to  recover  damages  for  the  death  of  her 
husband  under  the  Act  of  Congress  of  April  22, 1908, 35 
U.  S.  Stat.  65,  c.  149,  known  as  the  "Employers'  Liabil- 
ity Act,"  and  that,  on  June  24,  1914,  she  had  recovered 
in  such  action  a  verdict  against  defendant  for  |7,161, 
which  had  been  fully  paid  and  satisfied.  She  also 
averred  that,  after  the  satisfaction  of  the  verdict,  she 
had  applied  to  the  superintendent  of  the  relief  depart- 
ment for  payment  of  the  death  benefit  under  the  certifi- 
cate, but  payment  had  been  refused  by  him.  The  regu- 
lations of  the  relief  department  of  defendant  company 
were  attached  to  the  statement  and  contained  the  fol- 
lowing provision : 

"58.  Should  a  member  or  his  legal  representative  make 
claim,  or  bring  suit,  against  the  company,  or  against  any 
otl)er  corporation  which  may  be  at  the  time  associated 
therewith  in  administration  of  the  relief  departments, 
in  accordance  with  the  terms  set  forth  in  Regulation  No. 
6,  for  damages  on  account  of  injury  or  death  of  such 
member,  payment  of  benefits  from  the  relief  fund,  on  ac- 
count of  the  same,  shall  not  be  made  until  such  claim 
shall  be  withdrawn  or  suit  discontinued.    Any  compro- 


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GETKIN,  AppeUant,  i'.  PENNA.  R.  R.  CO.        153 
1917.]  Opinion  of  the  Court. 

mise  of  such  claim  or  suit,  or  judgment  in  such  suit, 
shall  preclude  any  claim  upon  the  relief  fund  for  bene- 
fits on  account  of  such  injury  or  death,  and  the  accept- 
ance of  benefits  from  the  relief  fund  by  a  member  or  his 
beneficiary  or  beneficiaries  on  account  of  injury  or  death 
shall  operate  as  a  release  and  satisfaction  of  all  claims 

against  the  company for  damages  arising  from 

such  injury  or  death.'^ 

In  the  aiBdayit  of  defense,  the  recovery  in  the  action 
of  trespass  was  set  up  as  a  bar  to  this  action  under  the 
r^ulation  above  quoted.  The  validity  of  such  a  regu- 
lation has  been  sustained  in  Graft  v.  Bait.  &  Ohio  B. 
R.  Co.,  5  Sad.  (Pa.)  94;  Johnson  v.  Philadelphia  & 
Reading  R.  B.  Co.,  163  Pa.  127;  Bingle  v.  Penna.  R.  R. 
Co.,  164  Pa.  529 ;  Reese  v.  Penna.  R.  R.  Co.,  229  Pa.  340 » 
Hogarty  v.  Philadelphia  &  Reading  Ry.  Co.,  255  Pa.  236. 

At  the  time  of  his  death,  plaintiff's  husband  was  run- 
ning a  train  engaged  in  interstate  commerce,  so  that  the 
Act  of  Congress  of  April  22, 1908,  35  Stat,  at  Large,  65, 
c.  149,  No.  5,  is  controlling  to  the  extent  that  it  has  ap- 
plication to  this  case.  In  the  fifth  section  of  that  act, 
it  is  provided  that  "any  contract,  rule,  regulation  or  de- 
vice whatsoever,  the  purpose  or  intent  of  which  shall  be 
to  enable  any  common  carrier  to  exempt  itself  from  any 
liability  created  by  this  act,  shall,  to  that  extent,  be 
void."  But  the  only  liability  created  by  the  act  is  for 
damages  to  persons  suffering  injury  while  employed  by 
a  common  earner  .engaged  in  interstate  commerce.  Any 
regulation,  therefore,  which  enables  a  carrier  to  exempt 
itself  from  a  claim  for  damages  for  injury  received  under 
the  conditions  mentioned  is  void.  If  the  plaintiff  had 
received  payment  of  the  benefit  certificate  prior  to  bring- 
ing  suit  for  damages,  the  stipulation  in  the  contract  of 
membership  in  the  relief  fund  could  not  have  been  per- 
mitted to  defeat  the  right  to  recover  damages.  It  is 
provided,  however,  in  the  act  of  congress,  that,  in  such 
action  for  damages  brought  against  a  common  carrier, 
the  carrier  may  set  off  therein  any  sum  it  has  contrib- 


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154        GETKIN,  Appellant,  v.  PENNA.  R.  R.  CO. 

Opinion  of  the  Court.  [259  Pa. 

uted  or  paid  to  any  insurance  relief  beneflta,  or  indem- 
nity, that  may  have  been  paid  to  the  injured  employee, 
or  the  person  entitled  thereto,  on  account  of  the  injury 
or  death  for  which  said  action  was  brought  It  is,  there- 
fore, apparent  that,  by  the  act  in  question,  congress  did 
not  intend  that  there  should  be  both  payment  of  benefits 
and  a  recovery  of  damages  for  the  injury,  at  least  in  so 
far  as  payment  for  both  was  to  be  made  by  the  same  de- 
fendant. In  the  matter  of  payment  here,  counsel  for  ap- 
pellant seek  to  distinguish  between  the  defendant  com- 
pany, and  the  beneficial  association,  which  is  merely  a 
department  or  bureau  of  the  defendant  company.  But 
the  benefits  arc  demanded  from  the  company,  and  the 
suit  to  compel  their  payment  is  against  it.  If  plaintiff 
is  right  in  seeking  to  hold  the  company  responsible  for 
the  payment  of  the  benefits,  it  is  difficult  to  see  why  it 
should  not  be  credited  with  their  payment  when  made. 
However,  that  question  is  not  important  here,  as  there 
is  no  attempt  by  defendant  to  set  off  any  sum  against 
the  amount  to  which  the  plaintiff  was  entitled  as  dam- 
ages. Defendant  is  merely  standing  upon  the  terms  of 
the  contract  under  which  the  benefit  certificate  was  is- 
sued. 

The  present  suit  is  not  an  action  for  damages  for  in- 
juries sustained.  As  has  already  been  stated,  such  an 
action  was  actually  brought  and  tried  in  another  forum, 
and  this  plaintiff,  as  administratrix  of  her  husband,  did 
in  that  action  recover  for  her  benefit  and  that  of  her 
children,  if  any,  damages  in  the  sum  of  f  7,161.  So  that 
no  question  of  exemption  or  release  from  the  payment  of 
damages,  by  reason  of  the  acceptance  of  benefits,  can 
arise  in  this  case,  and  there  is  no  occasion  to  invoke  in 
that  respect  the  provision  of  the  act  of  congress.  The 
present  claim  is  based  entirely  upon  the  contract  of 
membership  in  the  relief  association,  and  that  contract 
contains  a  clear  stipulation  that  the  recovery  of  a  judg- 
ment in  a  suit  for  damages  on  account  of  injury  or  death 
of  a  member  shall  preclude  any^  claim  upon  the  relief 


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GETKIN,  Appellant,  v.  PENNA.  R.  R.  CO.        155 
1917.J  Opinion  of  the  Court. 

fond,  for  benefits  on  account  of  such  injury  or  death. 
The  relief  fund  provides  protection  for  its  members  in 
case  of  sickness  or  accidental  injury  where  there 
may  be  no  legal  liability  upon  the  part  of  the  defendant 
company.  And  where  there  is  such  liability,  the  bene- 
ficiary has  the  option  of  accepting  the  sum  payable 
under  the  terms  of  the  benefit  certificate,  or  of  institut- 
ing legal  proceedings,  with  the  possibility  of  recovering 
a  much  larger  sum,  as  did  the  plaintiff  in  the  present 
caae.  But,  under  the  terms  of  the  contract,  the  funds 
of  the  ben^cial  association  are  not  to  be  depleted  by  the 
payment  of  benefits  in  a  case  where  damages  are  recov- 
ered for  the  injury  or  death  of  a  member.  As  such  a 
recovery  was  had  in  the  present  case,  we  think  the  court 
below  was  fully  justified  in  overruling  the  motion  for 
judgment  for  want  of  a  sufficient  affidavit  of  defense. 
The  judgment  is  affirmed. 


CJommonwealth  ex  rel.,  Appellant^  v.  North  Shore 
Bailroad  Company. 

^Bec^ver$ — Corporations — Appointment  —  Hostile  interest  — Re- 
movoL 

The  receiver  of  a  railroad  company  was  properly  removed  on  pe- 
tition of  creditors  of  the  company  where  it  appeared  that  he  was 
interested  in  another  railroad  with  which  the  former  company  was 
engaged  in  litigation. 

Argued  May  15,  1917.  Appeal,  No.  95,  Oct.  T.,  1917, 
by  plaintiff,  from  decree  of  C.  P.  Lawrence  Co.,  March 
T.,  1912,  No.  11,  from  order  vacating  appointment  of  re- 
ceiver in  case  of  Commonwealth  of  Pennsylvania  ex  rel. 
Attorney  General  v.  North  Shore  Bailroad  Company. 
Before  Brown,  C.  J.,  Potter,  Stewart,  Mosohziskbr 
and  Walung,  JJ.    Affirmed. 

Petition  to  vacate  appointment  of  receiver. 

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^oG  C0:M.  ex  rel.,  AppcL,  v,  NORTH  SHORE  R.  R.  CO. 

Statement  of  Facts.  [259  Pa. 

Prom  the  record  it  appeared  that  Henry  CJook  had  been 
appointed  receiver  for  the  North  Shore  Railroad  Com- 
pany after  a  verdict  had  been  rendered  against  the  de- 
fendant in  quo  warranto  proceedings  challenging  the 
propriety  of  the  granting  of  the  charter  of  defendant  cor- 
poration. 

The  petition  of  the  North  Shore  Railroad,  by  its  presi- 
dent, alleged  in  part,  that  "your  petitioner  further  show- 
eth  that  no  judgment  has  ever  been  taken  on  the  verdict 
of  the  jury,  and  that  the  order  api)ointing  Henry  Cook 
receiver  was  made  without  notice  of  any  kind  to  your 
petitioner  and  without  any  application  for  the  appoint- 
ment of  a  receiver,  so  far  as  your  petitioner  is  advised, 
and  without  notice  to  any  of  the  creditors  of  the  North 
Shore  Railroad  Company.  Your  petitioner  further 
showeth  that  the  said  Henry  Cook  is  not  a  disinterested 
person  and  would  not  be  a  disinterested  receiver,  and 
that  he  ought  not  to  be  appointed  receiver  of  the  North 
Shore  Jlailroad  Company  by  reason  of  his  friendship  to 
the  Pennsylvania  Company  which  is  opposing  and  has 
heretofore  opposed  the  interests  of  the  North  Shore  Rail- 
road Company,  in  that  it  has  undertaken  to  acquire  the 
property  of  the  North  Shore  Railroad  Company,  and,  in 
that  there  are  now  pending  three  cashes  in  behalf  of  the 
North  Shore  Railroad  Company  against  the  Pennsyl- 
vania Company  and  the  Pittsburgh,  Fort  Wayne  &  Chi- 
cago Railway  Company,  operated  by  the  Pennsylvania 
Company,  and  that  there  is  also  one  judgment  recovered 
by  the  North  Shore  Railroad  Company  against  the  Pitts- 
burgh, Port  Wayne  &  Chicago  Railway  Company  in 
which  W.  A.  McConnel,  who  was  the  attorney  for  the 
plaintiflE  in  this  proceeding,  was  attorney  for  the  Penn- 
sylvania Company  and  the  Pittsburgh,  Port  Wayne  & 
Chicago  Railway  Company,  the  said  W.  A.  McConnel 
being  attorney  in  the  three  suits  now  pending." 

The  court  below,  Embby,  P.  J.,  filed  the  following  opin- 
ion: 

An  appeal  from  the  judgment  and  decree  in  this  case 


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COIL  ex  reL,  AppeL,  v.  NORTH  SHORE  E.  R.  CO.  157 
1917.]  Opinion  of  Court  below, 

wafl  taken  to  the  Supreme  Court,  and  on  May  15,  1917, 
it  was  ordered  that  the  record  be  remitted  to  the  court 
below  with  direction  that  it  assign  its  reason  for  revok- 
ing the  appointment  of  Henry  E.  Cook,  receiver,  and  ap- 
pointing in  his  stead  Richard  S.  Holt,  the  record  to  be 
returned  within  ten  days.  This  order,  along  with  the 
record,  was  received  by  the  prothonotary  of  Lawrence 
County  May  24, 1917,  and  until  that  date  this  court  had 
no  knowledge  of  it. 

In  compliance  with  the  above  order,  I  assign  the  fol- 
lowing reasons  as  matters  of  fact  that  induced  the  revo- 
cation of  the  appointment  of  Henry  E.  Cook : 

First.  This  case  was  tried  before  Hon.  W.  E.  Portbr, 
P.  J.,  and  the  testimony,  exhibits  and  charges  of  the 
court  cover  five  hundred  and  twenty  typewritten  pages. 
This  testimony  shows  at  length  continuous  litigation  be- 
tween the  North  Shore  Railroad  Company  and  the  Penn- 
sylvania Company  and  Pittsburgh,  Fort  Wayne  &  Chi- 
cago Railway  Company,  operated  by  the  Pennsylvania 
Company.  It  also  shows  at  least  three  suits  i>ending  at 
the  time  of  the  making  of  the  order  in  which  the  North 
Shore  Railroad  Company  was  seeking  to  recover  dam- 
ages from  the  Pennsylvania  Company  and  companies 
controlled  and  operated  by  it.  In  these  cases,  William 
A.  McConnel,  Esq.,  one  of  the  attorneys  for  the  plaintiflf 
in  this  case  was,  and  is  attorney  for  the  Pennsylvania 
Company,  and  the  companies  controlled  by  it,  in  the  suits 
pending  in  which  the  North  Shore  Railroad  Company  is 
plaintiff. 

Second.  The  decree  of  January  1,  1916,  by  which  the 
appointment  of  Henry  E.  Cook  was  made,  was  entered 
without  application  for  the  appointment  of  a  receiver 
and  without  notice  to  the  North  Shore  Railroad  Com- 
pany, its  stockholders  or  creditors. 

Third.  Henry  E.  Cook  had  not  qualified  as  receiver  at 
the  time  of  entering  the  decree  revoking  his  appointment. 

Fourth.  On  January  10, 1916,  a  petition  was  presented 
by  the  North  Shore  Railroad  Company  averring  that 


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158  COM.  ex  rel.,  Appel.,  v.  NORTH  SHORE  R.  R.  CO. 

Opinion  of  Court  below.  [259  Pa. 

Henry  E.  Cook  was  not  a  disinterested  person  and  would 
not  be  a  disinterested  receiver  by  reason  of  his  friendship 
for  the  Pennsylvania  Company.  This  petition  recited 
tiiat  there  were  three  several  cases  pending  in  which  the 
North  Shore  Railroad  Company  was  plaintiff  and  that 
there  was  one  judgment  recovered  by  the  North  Shore 
Railroad  Company  against  the  Pittsburgh,  Fort  Wayne 
&  Chicago  Railway  Company  in  which  W.  A.  McConnel, 
attorney  for  plaintiff  in  this  proceeding,  was  attorney  for 
the  Pittsburgh,  Port  Wayne  &  Chicago  Railway  Com- 
pany, and  that  he  was  also  attorney  for  the  defendant  in 
the  cases  pending,  and  praying  for  the  revocation  of  the 
appointment  of  Henry  E.  Cook.  On  this  petition,  a  rule 
to  show  cause  was  granted,  returnable  January  17, 1916, 
at  9  o'clock,  and  issue  and  service  of  this  rule  was  waived 
by  attorneys  for  plaintiff.  To  this  rule,  an  answer  was 
filed  by  William  A.  McConnel,  one  of  the  attorneys.  The 
cause  came  on  for  argument  June  13, 1916. 

Fifth.  At  the  argument  of  this  case,  a  petition  was  pre- 
sented by  divers  creditors  and  stockholders  of  the  North 
Shore  Railroad  Company  recommending  the  appoint- 
ment of  Hon.  Richard  S.  Holt  as  receiver  of  the  North 
Shore  Railroad  Company. 

Sixth.  From  the  record  in  the  case  and  from  the  state- 
ments of  counsel  made  at  the  argument,  the  court  found, 
and  I  now  find,  as  matter  of  fact,  that  W.  A.  McConnel, 
Esq.,  was  attorney  for  the  plaintiff  in  this  proceeding 
and  was  also  attorney  for  the  Pennsylvania  Company 
and  the  companies  controlled  or  operated  by  it  in  the 
several  suits  pending  in  which  the  North  Shore  Railroad 
Company  was  plaintiff  and  the  Pennsylvania  Company 
and  the  Pittsburgh,  Fort  Wayne  &  Chicago  Railway 
Company,  operated  by  the  Pennsylvania  Company  w^ere 
defendants;  that  one  judgment  had  been  recovered  by 
the  North  Shore  Railroad  Company  against  the  Pitts- 
burgh, Fort  Wayne  &  Chicago  Railway  Company,  and 
that  W.  A.  McConnel  was  attorney  for  the  defendant  in 
that  proceeding;  that  the  appointment  of  Henry  E.  Cook 


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COM.  ex  rel.,  Appel.,  v.  NORTH  SHORE  R.  R.  CO.  159 
1917.]  Opinion  of  Court  below. 

was  made  without  any  application  for  the  appointment 
of  a  receiver,  and  without  notice  to  the  defendant,  its 
stockholders  or  creditors,  and  that  the  name  of  Henry  E. 
Cook,  as  receiver,  was  suggested  to  the  court  by  one  of 
the  attorneys  for  the  plaintiff;  that  Henry  E.  Cook  was 
not  entirely  disinterested,  and  was  specially  friendly  to 
the  Pennsylvania  Company ;  that  the  Pennsylvania  Com- 
pany was  specially  interested  in  acquiring  the  property 
or  part  of  the  property,  of  the  North  Shore  Railroad 
Company ;  that  the  friendship  existing  between  Henry 
E.  Cook  and  the  Pennsylvania  Company,  and  its  attor- 
ney, was  such  as  to  raise  a  grave  doubt  as  to  the  disin- 
terestedness of  Henry  E.  Cook  were  he  to  continue  as  re- 
ceiver, and  I  did  not  deem  it  advisable  under  the  facts  as 
they  appeared,  to  continue  him  in  the  office  of  receiver. 
I  further  found,  and  now  find  that  Henry  E.  Cook  had 
not  qualified  and  had  done  nothing  as  receiver,  or  by 
virtue  of  the  appointment. 

Seventh.  I  found,  and  now  find  that  Hon.  Richard  S. 
Holt  had  served  a  term  as  President  Judge  of  the  Thirty- 
sixth  Judicial  District ;  that  he  is  an  able  and  reputable 
lawyer,  familiar  with  business  propositions,  and  without 
interest  in,  or  special  friendly  relations  towards  any  of 
the  parties  interested  in  the  proceedings,  or  in  the  wind- 
ing up  of  the  affairs  of  the  North  Shore  Railroad  Com- 
pany. 

Eighth.  I  found,  and  now  find  that  Hon.  Richard  S. 
Holt  is  eminently  qualified  for  position  as  receiver,  and 
that  the  affairs  of  the  company,  if  administered  by  Henry 
E,  Cook,  as  receiver,  would  probably  at  all  times  be  open 
to  criticism.  ^ 

Upon  the  above  facts,  I  deemed  it,  and  now  believe  it 
to  have  been  the  duty  of  the  court  to  revoke  the  appoint- 
ment of  Henry  E.  Cook,  and  made  the  appointment  of 
Hon.  Richard  S.  Holt  because  I  found  him  to  be  a  person 
well  qualified  for  the  position  of  receiver. 

The  court  vacated  the  appointment  of  Henry  E.  Cook 
as  receiver  of  the  petitioner  and  appointed  Richard  S. 


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160  COM.  ex  rcL,  AppeL,  v.  NORTH  SHORE  R.  R.  CO, 

Assignment  of  Error— Opinion  of  the  Court  [259  Pa. 
Holt  in  hifl  place.  The  Commonwealth  of  Pennsylvania 
appealed. 

Error  assigned  was  the  order  revoking  the  appoint- 
ment. 

Robert  K.  Aiken  and  W.  A.  McConnel,  for  appellant. 

J.  Norman  Martin,  of  Martin  d  Martin,  for  appellee. 

pBtt  Curiam,  June  30, 1917 : 

The  reasons  given  by  the  learned  court  below  for  va- 
cating the  appointment  of  Henry  E.  Cook,  as  receiver, 
and  appointing  in  his  stead  Richard  S.  Holt,  are  good 
and  sufficient. 

Appeal  dismissed  at  appellant's  costs. 


Noecker,  Appellant,  v.  Woods^ 

Constitutional  law — Constitution  of  Pennsylvania — Schedule  to 
the  Constitution,  Sec,  H — Judicial  districts — Designation — Act  of 
April  2k,  1917,  P.  L.  95— Validity. 

1.  Section  14  of  the  Schedule  to  the  Constitution  of  Pennsyl- 
vania, providing  that  the  general  assembly  shall  at  the  next  suc- 
ceeding session  after  each  decennial  census  and  not  oftener^ 
designate  the  several  judicial  districts  as  required  by  this  Con- 
stitution, is  mandatory  in  form,  and  indicates  a  clear  intention 
on  the  part  of  the  framers  of  the  Constitution,  and  of  the  peopln 
who  adopted  it,  that  judicial  apportionment  acts  are  to  be  passed 
at  definitely  designated  sessions  of  the  legislature. 

2.  What  the  Constitution  specifically  requires  to  be  done  by  the 
legislature  at  a  definitely  designated  session  cannot  be  done  at 
any  other. 

8,  It  is  always  to  be  presumed  that  the  legislature  performs  the 
duties  enjoined  upon  it  by  the  Constitution,  and  when  a  session 
immediately  succeeding  a  decennial-  census  is  allowed  to  pass 
without  the  enactment  of  a  judicial  apportionment  act,  a  fair 
presumption  is  that  the  legislature  intended  to  readopt  the  exist- 
ing judicial  apportionment  for  the  succeeding  ten  years.    In  such 


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NOECKER,  Appellant,  v.  WOODS.  161 

•  1917.]  Syllabus- Arguments. 

case  the  judicial  districts  of  the  State  as  then  constituted  must 
continue  until  tbe  session  next  succeeding  the  next  decennial 
census. 

4.  The  Act  of  April  24,  1917,  P.  L.  95,  designating  the  several 
judicial  districts  of  the  Conunonwealth  and  providing  for  the 
election  and  commission  of  judges  learned  in  the  law  therefor, 
Tiolates  Section  14  of  the  Schedule  to  the  Constitution,  in  that  it 
was  not  passed  at  the  next  session  of  the  legislature  succeeding  a 
decennial  census  and  is  void. 

Argued  June  30,  1917.  Appeal,  No.  5,  Hay  T.,  1918, 
bj  plaintiff,  from  decree  of  C.  P.  Dauphin  Co.,  Equity 
Docket  No.  603,  and  Commonwealth  Docket,  1917,  No. 
94,  dismissing  bill  in  equity  for  an  injunction  in  case  of 
F.  M.  Noecker  v.  Cyrus  E.  Woods,  Secretary  of  the  Com- 
monwealth of  Pennsylvania.  Before  Brown,  C.  J., 
Mestrbzat,  Potter,  Stewart,  Moschzisker,  Frazer 
and  Walung,  JJ.    Reversed. 

Bill  in  equity  for  an  injunction.  Before  Kunkel, 
P.  J.,  and  McCarrell,  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 
The  court  dismissed  the  bill.    Plaintiff  appealed. 

Error  assigned  was  the  decree  of  the  court. 

J,  E.  B.  Cunningham,  with  him  Spencer  Gilbert  Nath 
man,  B.  F.  Oeary  and  (7.  H,  Bergner,  for  appellant. — 
The  legislature  of  Pennsylvania  has  no  power  to  desig- 
nate the  several  judicial  districts  of  the  State,  except  at 
a  session  next  succeeding  a  decennial  census. 

The  Act  of  April  24,  1917,  P.  L.  95,  is  violative  of 
Section  14  of  the  Schedule  of  the  Constitution:  Com. 
ex  rel.  Chase  v.  Harding  et  al.,  87  Pa.  343 ;  Com.  ex  rel. 
Burns  v.  Handley  et  al.,  106  Pa.  245;  Com.  ex  rel.  v. 
Heck,  251  Pa.  39 ;  Rumsey  v.  People,  19  N.  Y.  41 ;  State 
ex  rel.  Meighen  v.  Weatherill,  147  N.  W.  Repr.  105; 
People  ex  rel.  Carter  v.  Rice,  135  N.  T,  473;  In  re  Rey- 
nolds, 202  N.  Y.  430. 
Vol.  ccltx— H 


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162  .  NOECKER,  AppeUant,  v.  WOODS. 

Arguments — Opinion  of  the  Court.  [259  Pa. 

William  H.  Keller,  First  Deputy  Attorney  General, 
with  him  Francis  Shunk  Browii,  Attorney  General,  for 
appellee. — The  Judicial  Apportionment  Act  of  April  24, 
1917,  P.  L.  95,  is  not  in  contravention  of  Section  14  of 
the  Schedule  to  the  Constitution. 

The  case  of  Commonwealth  ex  rel.  v.  Heck,  251  Pa. 
39,  is  distinguishable  from  the  case  at  bar. 

The  Constitution  does  not  require  that  the  legislature 
shall  make  a  new  judicial  apportionment  every  ten  years 
and  at  no  other  time,  but  only  that  it  shall  not  make  a 
judicial  apportionment  oftener  than  once  after  each 
decennial  census :  Com,  v.  Clark,  7  W.  &  S.  127 ;  Com. 
V.  Maxwell,  27  Pa.  444;  Rumsey  v.  People,  19  N.  Y.  41; 
State  ex  rel.  Meighen  v.  Weatherill,  147  N.  W.  Repr. 
105;  In  re  Reynolds,  96  N.  E.  Repr.  87;  People  ex  rel. 
Heffernan  v.  Carlock,  65  N.  E.  Repr.  109;  People  ex 
rel.  Carter  v.  Rice,  31  N.  E.  Repr.  921;  Legislative  Re- 
apportionment^ 21  Pac.  Repr.  480. 

Per  Curiam,  July  20, 1917 : 

And  now,  July  20,  1917,  the  court  being  of  opinion 
that  the  Act  of  Assembly,  approved  April  24,  1917, 
entitled  "An  act  to  designate  the  several  judicial  dis- 
tricts of  the  Commonwealth  as  required  by  the  Constitu- 
tion, and  to  provide  for  the  election  and  commissioning 
of  judges  learned  in  the  law  in  said  districts,"  is  uncon- 
stitutional and  void,  the  decree  of  the  court  below  is  re- 
versed, the  demurrer  to  appellant's  bill  is  overruled,  and 
Cyrus  E.  Woods,  secretary  of  the  Commonwealth,  is  re- 
strained and  enjoined  from  sending  to  the  county  com- 
missioners of  Clinton  County  a  notice  designating  the 
office  of  judge  of  the  Court  of  Common  Pleas  of  the 
57th  judicial  district,  as  an  office  for  which  candidates 
are  to  be  nominated  in  Clinton  County  at  the  fall  pri- 
mary in  the  year  1917,  the  costs  below  and  on  this  ap- 
peal to  be  paid  out  of  funds  ol^  the  Commonwealth  under 
the  control  of  the  appellee.  An  opinion  setting  forth 
the  reasons  for  this  decree  will  be  filed  at  a  later  date. 


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NOECKEB,  AppeUant,  v.  WOODS.  163 

1017.]  Opinion  of  the  Court. 

Opinion  by  Me.  Chief  Justice  Brown,  October  15, 
1917: 

On  April  24,  1917,  the  Governor  approved  an  act 
of  assembly,  entitled  ^^An  act  to  designate  the  sev- 
eral judicial  districts  of  the  Commonwealth  as  re- 
quired by  the  Constitution  and  to  provide  for  the  elec- 
tion and  commissioning  of  judges  learned  in  the  law  for 
the  said  districts.'*  The  fourteenth  section  of  the  sched- 
ule of  the  Constitution,  which  is  a  substantive  part  of 
that  instrument,  provides  that  *^The-  General  Assembly 
shall,  at  the  next  succeeding  session  after  each  decennial 
census  and  not  oftener,  designate  the  several  judicial 
districts  as  required  by  this  Constitution.'*  Notwith- 
standing this  plain  provision,  the  general  judicial  appor- 
tionment Act  of  July  18,  1901,  dividing  the  State 
into  fifty-six  judicial  districts,  was  still  in  force 
when  the  legislature  met  this  year.  The  only  change 
made  by  the  Act  of  April  24,  1917,  in  the  districts  as 
designated  by  the  Act  of  1901,  is  the  creation  of  Clinton 
County  as  a  separate  judicial  district.  It  has  a  popu- 
lation of  less  than  forty  thousand,  and,  at  the  time  of  the 
approval  of  the  Act  of  1917,  formed,  with  Cameron  and 
Elk  Counties,  the  twenty-fifth  judicial  district.  By  the 
Act  of  1917  it  is  made  the  fifty-seventh.  P.  M.  Noecker, 
one  of  its  resident  taxpayers,  filed  a  bill  in  the  court 
below,  averring  that  the  Act  of  1917  is  unconstitutional, 
(1)  in  that  it  is  violative  of  the  fourteenth  section  of  the 
schedule  of  the  Constitution,  and  (2)  because  it  violates 
Section  5,  Article  V,  of  the  Constitution,  which  provides 
as  follows:  '^Whenever  a  county  shall  contain  forty 
thousand  inhabitants  it  shall  constitute  a  separate  ju- 
dicial district,  and  shall  elect  one  judge  learned  in  the 
law:  and  the  General  Assembly  shall  provide  for  ad- 
ditional judges,  as  the  business  of  the  said  districts  may 
require.  Counties  containing  a  population  less  than  is 
sufficient  to  constitute  separate  districts  shall  be  formed 
into  convenient  single  districts,  or,  if  necessary,  may  be 
attached  to  contiguous  districts  as  the  General  Assem- 


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164  NOECKER,  Appellant,  v.  WOODS. 

Opinion  of  the  Court.  [259  Pa. 

bly  may  provide."  The  prayers  of  the  bill  are  for  a 
decree  declaring  the  Act  of  1917  unconstitutional  and 
void,  and  enjoining  the  secretary  of  the  Commonwealth 
from  giving  notice  to  the  county  commissioners  of  Clin-, 
ton  County  that  the  office  of  judge  of  the  Court  of  Com- 
mon Pleas  of  the  fifty-seventh  judicial  district  is  an  of- 
fice for  which  candidates  are  to  be  nominated  in  said 
county  at  the  fall  primary  of  the  present  year.  To  this 
bill  the  attorney  general  demurred,  on  the  ground  that 
the  Act  of  1917  is  constitutional.  The  demurrer  was 
sustained  under  a  stipulation  that  the  action  of  the 
court  on  the  demurrer  should  be  regarded  as  a  final  dis- 
position of  the  case.  On  this  appeal  from  the  dismissal 
of  the  bill  the  same  objections  to  the  constitutionality 
of  the  Act  of  1917  are  renewed. 

The  words,  "the  General  Assembly  shall,  at  the  next 
succeeding  session  after  each  decennial  census  and  not 
oftener,  designate  the  several  judicial  districts  as  re- 
quired by  this  Constitution,"  are  mandatory  in  form, 
and  indicate  a  clear  intention  on  the  part  of  the  f  ramers 
of  the  Constitution,  and  of  the  people  who  adopted  it,  that 
judicial  apportionment  acts  are  to  be  passed  at  definitely 
designated  sessions  of  the  legislature.  The  reason  for 
this  requirement  is  obvious.  The  judicial  apportion- 
ment of  the  State  has  for  its  basis  the  population  of  the 
various  counties,  and  the  one  session  of  the  legislature 
at  which  an  apportionment  can  be  made  with  fairness 
and  a  degree  of  accuracy  is  the  one  next  succeeding  the 
taking  of  a  decennial  census.  If  a  judicial  apportion- 
ment act  can  be  passed  at  any  session  of  the  l^islature 
succeeding  the  one  immediately  following  such  a  census, 
the  words,  '*the  next  succeeding  session,"  are  utterly 
without  meaning.  They  were  used  for  a  purpose  which 
is  not  to  be  thwarted  by  giving  them  the  strained  mean- 
ing of  ''at  any  succeeding  session."  They  mean,  in  com- 
mon parlance,  ''immediately  succeeding,"  or  "immedi- 
ately following,"  and  are  to  be  so  interpreted.  It  is, 
therefore,  to  be  concluded  that  what  the  Constitution 


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NOECKER,  AppeUant,  v.  WOODS.  165 

1917.]  Opinion  of  the  Court. 

specifically  requires^  for  a  very  good  reason,  to  be  done 
by  the  legislature  at  a  definitely  designated  session,  can- 
not be  done  at  any  other.  It  is  always  to  be  presumed 
that  the  legislature  performs  the  duties  enjoined  upon 
it  by  the  Constitution,  and  when  a  session  immediately 
succeeding  a  decennial  census  is  allowed  to  pass  without 
the  enactment  of  a  judicial  apportionment  act,  a  fair 
presumption  is  that  thie  legislature  intended  to  readopt 
the  existing  judicial  apportionment  for  the  succeeding 
ten  years ;  but,  be  this  as  it  may,  the  legislature  not  hav- 
ing passed  a  judicial  apportionment  act  at  the  session 
of  1911,  the  judicial  districts  of  the  State  as  now  con- 
stituted must  continue  until  the  session  of  1921. 

Nothing  decided  in  Com.  v.  Clark,  7  W.  &  S.  127,  and 
Com.  V.  Maxwell,  27  Pa.  444,  two  of  our  cases  cited  by  the 
learned  attorney  general  and  his  deputy  is  in  conflict  with 
the  foregoing  view.  The  eighth  section  of  the  sixth  article 
of  the  amended  Constitution  of  1838  declared  that  all 
officers  whose  election  or  appointment  was  not  provided 
for  in  that  instrument  should  be  elected  or  appointed  as 
might  be  directed  by  law.  The  election  or  appointment 
of  canal  commissioners  was  not  provided  for  in  the 
Constitution,  and  it  was  therefore  to  be  provided  for  by 
law.  By  section  eleven  of  the  schedule  appended  to  the 
Constitution  it  was  provided  that  the  appointing  power 
should  remain  as  theretofore;  that  all  officers  in  the 
appointment  of  the  executive  department  should  con- 
tinue in  the  exercise  of  the  duties  of  their  respective 
offices  until  the  legislature  should  pass  such  laws  as 
might  be  required  by  the  eighth  section  of  the  sixth 
article  of  the  Constitution.  The  same  section  of  the 
schedule  directed  that  those  laws  were  to  be  enacted  by 
the  first  legislature  under  the  amended  Constitution. 
In  Commonwealth  v.  Clark,  Clark  was  elected  a 
canal  commissioner  in  1843,  under  the  provisions  of 
an  act  of  assembly  passed  April  18th  of  that  year, 
providing  for  the  election  of  canal  commissioners. 
The  proceeding  to  oust  him  was  instituted  on  the 
ground  that  the  said  act  of  assembly  was  wholly  un- 


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166  NOECKER,  Appellant,  r.  WOODS. 

Opinion  of  the  Court.  [259  Pa. 

constitutional  and  void^  because  it  had  not  been  en- 
acted by  the  first  legislature  that  met  after  the  Ck>n8ti- 
tution  had  been  amended.  If  the  language  in  the  sched- 
ule which  so  provided  had  been  construed  as  mandatory, 
and  the  contention  of  the  Commonwealth  had  prevailed, 
the  eighth  section  of  the  sixth  article  of  the  Constitution 
could  never  have  been  given  effect  If,  under  our  Con- 
stitution, a  legislature,  at  a  session  next  succeeding  the 
taking  of  a  decennial  census  shall  not  apportion  the 
State  into  judicial  districts,  there  will  be  a  disregard  of 
mandatory  provision  of  the  Constitution,  but  such  dis- 
regard will  not  affect  the  constitutional  direction  that 
judicial  power  in  the  lower  courts  shall  be  administered 
through  judicial  districts.  What  is  said  of  Common- 
wealth V.  Clark  applies  equally  to  Commonwealth  v. 
Maxwell.  The  several  cases  from  other  jurisdictions 
cited  by  counsel  for  appellee  are  all  distinguishable 
from  the  one  now  under  consideration.  A  reference 
to  a  single  one  will  suffice.  In  State  v.  Weth- 
erill,  147  N.  W.  Repr.  105  (Minnesota),  the  court  said: 
^*The  difference  between  the  language  of  our  Constitu- 
tion and  that  of  the  constitution  of  the  other  states  is 
found  in  the  fact  that  by  the  language  of  the  latter  the 
legislature  is  commanded  to  make  the  reapportionment 
at  the  first  session  after  the  census,  while  in  our  State 
the  language  is  that  the  legislature  shall  have  the  power 
to  reapportion  at  that  session."  The  words  "shall  have 
the  power"  merely  authorize;  the  word  "shall"  is  man- 
datory. 

We  have  distinctly  and  most  properly  held  that  the 
life  of  a  judicial  apportionment  act  is  ten  years.  "Now 
we  are  prepared  to  see  the  relevancy  and  effect  of  the 
fourteenth  section  of  the  schedule,  which  seems  to  be 
out  of  place,  but  which  has  no  ambiguity  in  its  inter- 
pretation. It  reads  thus :  *The  General  Assembly  shall 
at  the  next  succeeding  session  after  each  decennial  cen- 
sus, and  not  oftener,  designate  the  several  judicial  dis- 
tricts, as  required  by  this  Constitution.'    The  italics  I 


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NOECKER,  Appellant,  v.  WOODS.  167 

1917.]  Opinion  of  the  Court. 

have  made  mark  its  operation.  The  duty  recurs  after 
each  census,  but  not  oftener.  It  is  evident  the  conven- 
tion intended  to  confine  the  arrangement  of  districts  to 
decennial  periods  when  the  census  would  authorita- 
tively, and  with  certainty,  declare  the  population  of 
each  county^' :  Aonbw,  C.  J.,  in  CJommonwealth  ex  rel. 
Chase  v.  Harding,  87  Pa.  343.  A  few  years  later,  in 
Commonwealth  ex  rel.  Burns  v.  Handley,  106  Pa.  245, 
Mr.  Justice  Clark  thus  refers  to  the  Harding  case: 
"In  Commonwealth  ex  rel.  Chase  v.  Harding,  6  Norris 
343,  it  was  decided  that  this  provision,  when  a  county 
attains  that  number  of  inhabitants,  does  not  of  itself 
constitute  it  a  separate  district;  but  simply  indicates  a 
certain  basis  upon  which,  at  the  proper  time  an4  in  the 
proper  manner,  judicial  districts  may  be  declared  by 
the  legislature.  This  was  the  precise  question  settled  in 
that  case;    that  it  was  correctly  decided  we  have  no 

doubt *The  General  Assembly  shall,  at  the  next 

succeeding  session  after  each  decennial  census,  and  not 
oftener,  designate  the  several  judicial  districts,  as  re- 
quireil  by  this  Constitution.'  This  section  belongs  prop- 
erly to  the  body  of  the  Constitution ;  it  is  not,  in  any 
proper  sense,  a  schedule  provision ;  it  was  not  intended 
merely  to  bridge  the  space  between  the  old  and  the  new 
systems;  it  is  an  important  member  of  the  system  itself. 
Its  design  is  to  provide  for  a  designation  of  the  several 
judicial  districts  throughout  the  Commonwealth  at  reg- 
ular or  periodical  Intervals  of  ten  years,  and  to  prohibit 
any  further  or  other  designation  within  these  decennial 
periods.  The  arrangement  of  judicial  districts,  thus 
provided  for,  is  a  conclusive  one;  it  cannot  be  after- 
wards disturbed  or  interfered  with  during  the  period 
for  which  it  is  declared."  Following  the  two  foregoing 
cases  the  writer  said,  with  the  approval  of  the  entire 
court,  in  Commonwealth  ex  rel.  Brown  v.  Heck,  251  Pa. 
39,  that  the  judicial  districts  of  the  State  cannot  be 
changed  by  the  legislature,  session  after  session,  but 
only  at  intervals  of  ten  years,  as  the  changes  in  popula- 


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168  NOECKER,  Appellant,  v.  WOODS. 

Opinion  of  the  Court.  [259  Pa. 

tion  may  require.  With  it  thus  definitely  settled  that 
a  judicial  apportionment  act  cannot  be  changed  within 
the  ten  years  succeeding  its  passage,  if  the  legislature, 
at  the  recent  session,  had  passed  such  a  valid  act,  it 
would  have  to  continue  until  1927,  and  the  legislature  to 
assemble  in  1921 — the  year  after  the  decennial  census 
of  1920 — could  not  obey  the  constitutional  direction  tu 
then  designate  the  several  judicial  districts  of  the  State, 
That  duty  can  bo  then  performed  with  the  unconstitu- 
tional Act  of  1917  out  of  the  way. 

As,  for  the  reason  stated,  the  Act  of  April  24,  1917, 
is  in  violation  of  i\  constitutional  requirement,  the  sec- 
ond objection  to  its  constitutionality  need  not  be  con- 
sidered. In  support  of  the  decree  of  July  20, 1917,  this 
opinion  is  filed. 


Moran,  Appellant,  v.  The  General  Fire  Extin- 
guisher Company. 

Negligence — Ma^er  and  servant — Safe  place  to  work — Fall — 
Subcontractors — Injuries  to  workmen — Iddbility. 

1.  Where  an  employer,  in  disregard  of  actual  or  constructive 
notice  of  a  defect  in  the  supports  on  which  his  work  is  designed 
to  rest,  proceeds  without  correcting  the  same  and  injury  results 
to  his  employee  in  consequence  of  this  disregard,  the  law  will  Jiold 
him  guilty  of  culpable  negligence,  but  no  l^al  presiunption  of 
negligence  arises  in  the  first  instance  from  the  accident  itself, 
to  take  the  place  of  proof  of  negligence  or  to  shift  the  burden  of 
proof. 

2.  A  master  is  not  liable  for  the  injury  to  his  servant  caused  by 
hidden  defects  or  dangers  in  the  machinery,  appliances  or  prem- 
ises furnished  to  a  servant,  when  such  defects  or  dangers  were 
unknown  to  the  master  and  were  not  discoverable  by  the  exercise 
of  reasonable  care  and  skill  in  inspecting  them  and  when  there  is 
nothing  in  external  appearances  to  create  a  suspicion  of  their 
presence. 

3.  A  manufacturing  company  was  enlarging  its  plant  under  a 
contract  with  an  experienced  builder,  in  accordance  with  plans 
and  specifications  prepared  by  competent  architects.    It  made  a 


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MORAX,  Appellant,  r.  GENERAL  FIRE  E.  CO.    169 
1917.J  Syllabus — Arguments. 

separate  contract  with  a  fire  extinguishing  company  for  the  erec- 
tion of  a  fire  extinguishing  apparatus,  which  included  the  construc- 
tion of  a  tank  upon  foundations  and  supports  to  be  provided  by 
the  manufacturing  company.  The  contract  for  the  tank  was  sub- 
let by  the  fire  extinguishing  company  and  a  suitable  tank  was 
erected  upon  the  supports.  The  tank  was  filled  with  water  and 
while  a  workman  in  the  employ  of  the  fire  extinguishing  company 
was  at  work  beneath  the  tank,  the  supports  gave  way,  and  the 
tank  fell  causing  serious  injury  to  such  workman.  The  fire  extin- 
guishing company  had  no  notice  that  the  supports  were  insufficient. 
In  an  action  against  the  fire  extinguishing  company  brought  by  such 
workman  plaintiff  contended  that  defendant  had  failed  to  furnish 
him  with  a  safe  place  to  work.  The  court  decided  that  the  defend- 
ant was  not  liable  for  defects  in  the  supports,  of  which  it  was  not 
aware  and  over  which  it  had  no  control,  and  directed  a  verdict  for 
defendant  upon  which  judgment  was  entered.    Reld,  no  error. 

Argiied  March  21,  1917.  Appeal,  No.  391,  Jan.  T., 
1916,  by  plaintiflf,  from  judgment  of  C.  P.  No.  5,  Phila- 
delphia Co.,  March  T.,  1913,  No.  827,  on  directed  verdict 
for  defendant,  in  case  of  William  Moran  v.  The  General 
Fire  Extinguisher  Company.  Before  Brown,  C.  J., 
Stewart,  Mosohziskbr,  Prazer  and  Walung,  JJ.  Af- 
firmed. 

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

The  opinion  of  the  Supreme  Court  states  the  facts. 

Verdict  for  defendant  by  direction  of  the  court  and 
judgment  thereon.    Plaintiff  appealed. 

Errors  assigned  were  rulings  on  evidence  and  in  di- 
recting a  verdict  for  defendant. 

John  O.  Kaufman,  with  him  Walton  Pennewill  and 
V.  Qilpin  Rohinsan,  for  appellant. — Defendant  did  not 
provide  plaintiff  with  a  reasonably  safe  place  in  which 
to  work,  and  is,  therefore,  liable  to  him  for  injuries  sus- 
tained in  consequence  of  its  neglect  in  this  respect: 
Killweyer  v.  Forged  Steel  Wheel  Co.,  243  Pa.  110; 


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170    MORAN,  Appellant,  v.  GENERAL  FIRE  E.  CO. 

Arguments — Opinion  of  the  Court  [259  Pa, 

Cougle  V.  McKee  et  al.,  151  Pa.  602;  Carr  v.  General 
Fire  Extinguisher  Co.,  224  Pa.  346. 

There  is  abundant  evidence  that  the  supports  were  im- 
properly constructed  and  that  the  structure  was  an 
unusual  one:  Cooper  v.  Bobischung  Bros.,  155  S.  W. 
Bepr.  1050;  Ott  v.  General  Fire  Extinguisher  Co.,  226 
Pa.  337. 

The  case  of  Israel  v.  Lit  Brothers,  248  Pa.  463,  has  no 
application  to  the  facts  of  the  case. 

Frank  P.  Prichard,  with  him  James  Wilson  Bayard 
and  John  O.  Johnson,  for  appellee. — The  injury  was 
due  to  defects  in  the  construction  of  the  building,  for 
which  the  defendants  could  not  be  held  responsible: 
Israel  v.  Lit  Bros.,  248  Pa.  463. 

Opinion  by  Mb.  Justice  Stewart,  October  8, 1917 : 
The  action  was  for  the  recovery  of  damages  for  in- 
juries sustained  by  plaintiff  while  in  the  employment  of 
the  defendant  company  and  engaged  in  the  line  of  his 
duty.  The  .claim  is  based  on  alleged  negligence  of  the 
defendant  in  failing  to  provide  a  place  reasonably  safe 
for  plaintiff  while  engaged  at  his  work.  The  business 
of  the  defendant,  as  its  name  indicates,  was  the  equip- 
ping of  buildings  with  an  improved  sprinkler  system  for 
fire  protection.  A  thread  company  operating  a  plant  in 
Philadelphia  determined  on  an  enlargement  of  its  plant 
by  the  construction  of  an  additional  story  and  the  build- 
ing of  a  fire  tower  in  connection  with  the  plant  proper, 
the  latter  being  designed  to  support  a  tank  to  be  used 
for  the  storage  of  water.  It  entered  into  a  contract 
with  an  experienced  builder  for  the  erection  of  the  ad- 
ditions in  accordance  with  the  plans  and  specifications 
prepared  by  competent  architects,  and  into  a  separate 
contract  with  the  defendant  company  for  the  equip- 
ment of  the  plant  with  its  sprinkler  system,  which  in- 
cluded among  other  things  the  construction  and  erection 
of  a  white  cedar  water  tank  with  a  capacity  of  20,000 


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MORAN,  Appellant,  v.  GENERAL  FIRE  E.  CO.    171 
1917.]  Opinion  of  the  Court. 

gallonSy  upon  foundations  and  supports  to  be  provided 
bj  the  owners.  The  defendant  company  sublet  the  build- 
ing of  the  tank  to  an  independent  contractor  long  ex- 
perienced in  the  business.  Upon  the  completion  of  the 
building  proper  the  defendant  entered  for  the  purpose 
of  installing  its  sprinkler  system.  It  had  put  in  place 
a  large  water  tank  on  the  supports  provided,  and  had 
introduced  itai  entire  system  in  the  building,  when,  for 
the  purpose  of  testing  its  sufficiency,  it  caused  the  water 
to  be  turned  into  the  tank  on  the  afternoon  of  Decem- 
ber 26, 1911,  to  the  depth  of  four  feet,  and  on  the  morn- 
ing following  it  caused  the  tank  to  be  filled  to  its  ca- 
pacity. About  an  hour  thereafter  the  foundation  or 
supports  on  which  the  tank  rested  gave  way,  and  the 
whole  structure,  including  the  tank,  fell  to  the  ground, 
and  the  plaintiff,  who  was  at  the  time  engaged  in  doing 
some  work  on  pipes  beneath  the  tank,  was  seriously  in- 
jured by  the  collapse.  At  the  close  of  plaintiffs  case, 
the  trial  judge,  afSrming  the  ninth  point  submitted  by 
the  defendant,  gave  binding  instructions  in  favor  of  the 
defendant  and  a  verdict  was  rendered  accordingly.  The 
appeal  raises  but  a  single  question  calling  for  our  con- 
sideration :  Did  the  evidence  submitted  by  the  plaintiff 
touching  the  n^ligence  charged  show  a  case  requiring 
submission  to  the  jury?  That  the  collapse  which  oc- 
casioned the  plaintiff's  injury  resulted  from  a  defective 
construction  of  the  base  on  which  the  water  tank  was  to 
rest,  is  conceded.  There  is  a  diversity  of  view,  however, 
expressed  as  to  just  what  the  defect  was  that  was  the 
initial  operating  cause;  but  the  witnesses  all  agreed 
that  the  base,  constructed  as  it  was,  and  as  the  event 
proved,  was  inadequate  for  the  support  of  the  tank 
carrying  20,000  gallons  of  water.  There  is  not  a  sugges- 
tion that  the  collapse  occurred  because  of  any  defect  or 
imperfection  in  any  of  the  work  done  or  materials  fur- 
nished by  the  defendant;  these  conformed  in  all  re- 
spects to  the  plans  and  specifications.  The  defendant 
bad  nothing  whatever  to  do  in  furnishing  the  supports 


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172    MORAN,  Appellant,  v.  GENERAL  FIRE  E.  CO. 

Opiuiou  of  the  Court.  [2^^  Pa. 

for  the  tank.  So  that  it  may  clearly  appear  what  the 
issue  was,  we  quote  from  the  plaintiflPs  statement  of 
claim.  After  reciting  the  facts  we  have  given,  it  pro- 
ceeds :  "Whereupon  it  then  and  there  became  the  duty 
of  the  said  defendant,  before  permitting  the  said  work  to 
be  so  placed  and  filled  with  water,  to  ascertain  and  pro- 
vide that  the  supports  of  the  said  tank  be  sufficient  to 
safely  carry  the  weight  of  the  said  tank  and  water  it 
was  designed  to  contain,  and  that  said  tank  was  prop- 
erly superimposed  upon  said  supports,  and  thereby  to 
observe  its  duty  to  furnish  to  the  plaintiff  and  other  em- 
ployees reasonably  safe  premises  in  which  to  perform 
their  duties  and  work."  We  may  dismiss  from  con- 
sideration so  much  of  the  statement  as  by  innuendo 
suggests  that  the  tank  was  not  properly  superimposed 
upon  the  supports.  Nowhere  in  the  evidence  do  we  find 
a  suggestion  that  the  collapse  was  due  to  any  such  cir- 
cumstance, or  that  in  point  of  fact  any  such  circum- 
stance existed.  With  this  feature  of  the  case  eliminated, 
the  only  negligence  charged  was  failure  on  the  part  of 
the  defendant  before  permitting  the  tank  to  be  put  in 
place  and  filled  with  water  to  ascertain  and  provide  that 
the  supports  were  sufficient  to  safely  carry  the  weight 
of  tank  and  water  the  latter  was  designed  to  contain. 
If  any  such  legal  duty  rested  on  the  defendant,  then 
manifestly  the  case  was  one  for  the  jury,  and  on  the  evi- 
dence it  was  error  to  withhold  it.  We  know  of  no  legal 
principle  from  which  any  such  rule  of  duty  as  is  here 
sought  to  be  applied  can  be  derived;  nor  do  we  know 
of  any  accepted  authority  which  asserts  it  True  it  is 
that  where  an  employer  in  disregard  of  actual  or  con- 
structive notice  of  a  defect  in  the  supports  threatening 
danger  on  which  his  work  is  designed  to  rest,  proceeds 
without  correcting  the  same  and  injury  results  to  his 
employee  in  consequence  of  this  disregard,  the  law  will 
hold  him  guilty  of  culpable  negligence;  but  in  such  case 
no  legal  presumption  of  negligence  arises  in  the  first 
instance  from  the  accident  itself  to  take  the  place  of 


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MORAN,  Appellant,  v.  GENERAL  FIRE  E,  CO.    173 
1917.]  Opinion  of  the  Court. 

proof  of  negligence  or  to  shift  the  burden  of  proof.  Alli- 
son Manufacturing  Co.  v.  McCormick,  118  Pa.  519;  Mc- 
Kenna  v.  William  H.  Nixon  Paper  Co.,  176  Pa.  306.  An 
indispensable  condition  of  plaintiflPs  right  to  recover 
is  that  the  evidence  discloses  such  facts  as  will  warrant 
a  reasonable  inference  that  the  injury  resulted  directly 
from  a  failure  of  duty  on  the  part  of  the  employer. 
There  are  cases  where  certain  facts  being  shown,  or  ad- 
mitted, the  law  will  presume  negligence,  such  as  involve 
neglect  of  a  statutory  duty  and  the  like;  but  in  the  pres- 
ent case  not  a  single  fact  alleged  or  proved  is  in  itself 
inconsistent  with  the  plaintiffs  entire  freedom  from  re- 
sponsibility in  connection  with  the  accident,  and  there- 
fore the  real  and  only  question  in  the  case  is,  what  was 
the  measure  of  this  defendant's  duty  towards  the  plain- 
tiff as  its  employee,  for  until  this  be  ascertained,  the 
question  of  its  negligence  admits  of  no  discussion. 
Once  this  is  ascertained  the  question  of  negligence  is  to 
be  determined  in  the  light  of  the  evidence  adduced  or  the 
admitted  facts.  This  measure  of  duty  is  nowhere  more 
clearly  and  satisfactorily  defined  than  in  Thompson's 
Commentaries  on  the  Law  of  Negligence,  where  in  Sec. 
3785  it  is  said :  "Judicial  holdings  unite  upon  the  prop- 
osition that  the  master  is  not  liable  for  an  injury  to  his 
servant  caused  by  hidden  defects  or  dangers  in  the  ma- 
chinery, appliances  #r  premises  furnished  to  a  servant, 
when  such  defects  or  dangers  were  unknown  to  the 
master  and  were  not  discoverable  by  the  exercise  of  that 
reasonable  care  and  skill  in  inspecting  them  already 
spoken  of,  and  when  there  is  nothing  in  external  appear- 
ances to  create  a  suspicion  of  their  presence ;  otherwise, 
if  the  defect  could  have  been  discovered  by  the  exercise 
of  reasonable  or  ordinary  care  or  diligence.''  In  the 
light  of  this  clear  statement  of  the  law,  how  stands  the 
present  case?  As  between  the  owner  of  the  premises 
and  the  defendant  company,  upon  the  facts  of  the  case, 
the  latter  stands  free  from  all  liability;  he  had  no  share 
in  the  construction  of  the  tower,  foundations  or  supports, 


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174    MORAN,  Appellant;  v.  GENERAL  FIEE  E.  CO. 

Opinion  of  the  Court.  [259  Pa. 

or  any  part  of  the  building;  by  his  contract  with  the 
owner,  the  latter  was  *^to  provide  and  erect  a  suitable 
foundation  of  sufficient  strength  and  proper  elevation  of 
twenty  feet  above  the  highest  sprinkler  to  safely  sup- 
port the  20,000  gallon  gravity  tank."  As  between  the 
defendant  company  and  this  plaintiff,  notwithstanding 
the  fact  that  defendant  had  sublet  to  an  independent 
contractor  the  work  of  constructing  and  putting  in  place 
upon  the  supports  provided  by  the  owner  of  the  water 
tank,  it  did  not  therefore  escape  from  the  duty  of  exer- 
cising reasonable  or  ordinary  care  to  the  end  that  the 
place  assigned  its  employee  to  work  might  be  in  such 
condition  that  its  employee  would  not  be  exposed  to 
personal  injury,  such  duty  being  non  delegable ;  in  other 
words,  that  to  this  extent  the  subcontractor  and  his  em- 
ployees were  the  agents  and  servants  of  the  defendant 
company,  and  for  their  failure  of  duty  in  the  particular 
mentioned  resulting  in  injury,  the  defendant  would  be 
liable.  As  between  the  subcontractor  and  the  defend- 
ant company,  the  liability  would  rest  on  the  former  by 
the  terms  of  their  contract,  but  with  that  contract  the 
plaintiff  and  employee  had  nothing  to  do.  So  then, 
accepting  appellant's  theory  of  the  case,  what  failure  of 
duty  on  the  part  of  the  subcontractor  as  the  defendant's 
agent  and  its  immediate  employees,  can  be  derived  from 
the  evidence?  It  was  upon  supports  provided  by  the 
owner  of  the  premises  that  the  tank  was  to  be  erected. 
These  were  provided  by  the  owner  and  upon  them  the 
tank  was  placed.  Concededly  at  this  time  there  was  noth- 
ing in  external  appearances  to  create  a  suspicion  of  in- 
sufficiency in  the  supports  on  which  the  tank  was  to  rest. 
The  tank  was  put  in  place  under  the  direct  supervision  of 
the  subcontractor's  foreman,  who  for  eighteen  years  had 
been  accustomed  to  this  kind  of  work.  This  man  testified 
that  he  saw  nothing  unusual  in  the  construction  of  the 
supports,  nothing  to  indicate  to  him  that  there  was 
danger  in  placing  the  tank  upon  them,  and  that  if  there 
had  been  anything  out  of  the  ordinary  he  would  have 


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MORAN,  AppeUant,  v.  GENERAL  FIRE  E.  CO.    175 
1917.]  Opinion  of  the  Court 

stopped  the  erection  of  the  tank.  The  man  who  had  built 
the  tower  and  placed  everything  in  position  for  the  tank 
to  rest  upon  testified  that  there  was  nothing  apparent  to 
him  or  any  other  experienced  mason  that  there  was  any 
danger  of  the  tank  falling.  The  testimony  makes  it  very 
clear  that  nothing  short  of  an  exhaustive  expert  ex- 
amination would  have  disclosed  the  defects  which 
caused  the  collapse.  No  duty  rested  on  the  defendant 
to  make  such  examination.  With  the  tank  once  in  place, 
the  work  of  the  subcontractor  was  complete  and  the  next 
step  taken  was  under  the  direction  of  the  defendant's 
own  immediate  employees — the  testing  of  the  sufficiency 
of  the  tank  itself,  not  of  the  adequacy  of  the  supports 
on  which  it  was  placed.  Unquestionably  the  collapse 
resulted  from  the  inadequacy  of  the  latter,  but  here 
again  from  what  facts  appearing  in  the  evidence  would 
a  jury  be  justified  in  finding  that  the  exercise  of  ordi- 
nary prudence  would  have  suggested  to  the  defendant 
company  the  danger  in  filling  the  tank  to  the  limit  of  its 
capacity?  Every  one  concerned  knew  that  the  tank 
was  designed  to  carry  20,000  gallons  of  water,  the  build- 
er knew  it  or  must  be  held  to  have  known  it ;  the  owner 
certainly  knew  it,  as  did  the  architects.  What  reason 
could  this  defendant  have,  under  the  conditions  stated, 
for  distrusting  the  te^chnical  skill  of  these  experienced 
men,  particularly  the  technical  skill  of  the  builder,  and 
undertaking  an  investigation  itself  for  latent  defects  in 
the  structure,  for  which  it  did  not  pretend  to  be  quali- 
fied by  experience  or  professional  skill?  It  nowhere  ap- 
pears that  in  the  course  of  such  business— installing 
sprinkling  apparatus — it  is  customary  or  usual  for  the 
parties  installing  the  same  to  examine  into  the  suf- 
ficiency of  the  tank  supports  provided  by  the  owner,  and 
the  duty  resting  upon  such  an  one,  in  the  absence  of  ex- 
press or  constructive  notice  to  him,  means  no  more  than 
that  it  is  to  be  observant  of  such  defects  threatening 
danger  as  are  exposed  to  view.  The  case  presents  no 
features  which  distinguish  it  in  law  from  the  case  of 


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176    MORAN,  Appellant,  ti.  GENERAL  FIRE  E.  CO. 

Opinion  of  the  Court.  [259  Pa. 

Allison  Manufacturing  Co.  v.  McCormick,  supra.  In 
that  case  it  is  said :  "The  work  at  which  McCormick  was 
employed  was  not  a  dangerous  work ;  the  place  was  not 
one  that  could  be  regarded  as  in  any  sense  dan- 
gerous. The  materials  were  those  in  common  use 
for  the  purpose  for  which  they  were  used  by  the  de- 
fendant. The  work  was  done  under  the  supervision  of  a 
competent  painter.  The  accident  happening  under  such 
circumstances  was  without  the  range  of  ordinary  experi- 
ence, and  one,  therefore,  against  which  the  measure  of 
due  care  from  the  employer  could  not  protect  the  serv- 
ant To  hold  otherwise  would  lye  to  disi'egard  the  well- 
settled  law  upon  the  subject  and  to  make  the  employer 
an  insurer  of  the  n^afety  of  his  employee."  We  are  of 
opinion  that  the  case  was  correctly  ruled  in  the  court  be- 
low, and  the  judgment  is  accordingly  affirmed. 


Buckley,  Appellant,  v.  Holmes  et  aL 

Elections — Judges — Orphans'  Court  judges — Constitutional  law 
— Constitution  of  Pennsylvania,  Art,  V,  Sec.  25;  Art,  VIII,  Bee. 
B — Constitutional  Amendments  of  1909,  P,  L,  9iS — Time  of  elec* 
tion, 

1.  An  Orphans'  Court  judge  is  not  a  judge  of  a  designated 
judicial  district  of  a  state,  but  of  the  court  of  the  county  in  which 
he  resides.  If  there  be  one  of  two,  three  or  four  counties,  con- 
stituting a  single  judicial  district,  such  judge  is  not  a  judge  of 
that  district  with  jurisdiction  extending  all  over  it,  as  in  the 
case  of  each  of  the  Common  Pleas  judges  within  it  His  juris- 
diction is  limited  to  the  county  in  which  his  court  exists. 

2.  The  intent  of  the  sixth  constitutional  amendment  of  1909, 
(P.  L.  948),  was  to  eliminate  the  spring  election  and  to  continue 
the  constitutional  provisions  for  the  election  of  local  or  municipal 
officers  on  a  day  different  from  that  on  which  general  State  officers 
are  elected;  judges  of  the  several  judicial  districts  are  State  of- 
ficers but  the  duties  which  they  perform  are  local  and  under  the 
sixth  amendment  of  1909  they  are  in  the  class  of  officers  to  be 
elected  at  the  municipal  elections. 

3.  It  id  the  intent  of  such  amendnicnt  that  Orphans'  Court 


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BUCKLEY,  AppeUant,  v.  HOLMES  et  al.  177 

1917.]  Syllabus— Statement  of  Facts, 

judges  of  the  State  are  to  be  elected  at  the  same  time  that  elec- 
tions are  held  for  judges  of  the  courts  for  the  several  judicial  dis- 
tricts and  for  county,  city,  ward,  borough  and  township  officers 
for  regular  terms  of  service,  and  it  is  not  material  that  they  are 
not  judges  of  the  courts  for  the  several  judicial  districts  or  that 
there  are  no  provisions  in  the  Constitution,  other  than  the  sixth 
amendment  of  1909  (P.  L.  948),  under  which  they  can  be  elected. 

4.  Under  Section  25  of  Article  V,  and  Section  8  of  Article  IV 
of  the  Constitution,  where  a  vacancy  happens  by  reason  of  death 
in  a  court  of  record  within  three  months  prior  to  the  next  elec- 
tion for  judges,  the  vacancy  is  to  be  filled  by  appointment  by  the 
governor  until  the  first  Monday  of  January  next  succeeding  the 
second  election  for  judges  after  the  occurrence  of  such  vacancy, 
Hnd  this  provision  has  not  been  made  inoperative  by  the  sixth 
amendment  of  1909,  amending  Section  8  of  Article  IV,  and  pro- 
viding that  in  the  case  of  a  vacancy  in  an  elective  office,  the  per- 
son appointed  by  the  governor  to  fill  it  shall  be  succeeded  by  some- 
one chosen  on  the  next  election  day  appropriate  for  such  office, 
unless  the  vacancy  shall  happen  within  two  calendar  months  im- 
mediately preceding  such  election,  in  which  case  the  election  for 
said  office  shall  be  held  on  the  second  succeeding  election  day  ap- 
propriate for  such  office. 

6.  A  judge  of  the  Orphans*  Court  died  within  three  months  and 
more  than  two  months  prior  to  the  next  election  for  judges. 
Xomination  petitions  were  prepared  nominating  certain  persons  as 
candidates  for  the  vacancy  caused  by  the  death  of  such  judge. 
In  a  suit  in  equity  brought  by  a  taxpayer  to  enjoin  the  county 
commissioners  from  printing  the  names  of  the  nominees  men- 
tioned in  such  petition  upon  the  ballots,  the  lower  court  dismissed 
the  bill.  Held,  that  the  vacancy  caused  by  the  death  of  such  judge 
could  not  be  filled  at  the  next  election  for  judges,  but  must  be 
filled  by  the  governor,  the  incumbent  holding  office  until  the  first 
Monday  of  January  following  the  second  election  for  judges  held 
after  the  occurrence  of  such  vacancy,  and  the  decree  was  reversed 
with  directions  to  grant  the  relief  prayed  for. 

Argued  Sept  24, 1917.  Appeal,  No.  274,  Jan.  T.,  1917, 
by  plaintiflf,  from  decree  of  C.  P.  No.  1,  Philadelphia 
Co.,  June  T.,  1917,  No.  5686,  dismissing  bill  in  equity 
for  an  injunction,  in  case  of  F.  Pierce  Buckley  v.  George 
P.  Holmes,  Robert  J.  Moore  and  Harry  Kuenzel,  City 
Conunissioners  for  the  County  of  Philadelphia.    Before 


Vol,  cclix — 13 

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178  BUCKLEY,  AppeUant,  t'.  HOLMES  et  al. 

Statement  of  Facts.  [259  Pa. 

Brown,  C.  J.,  Mestbezat,  Pottbk,  Stewart,  Mosgh- 
ziSKER,  Frazer  and  Walung,  JJ.    Reversed. 

Bill  in  equity  for  an  injunction.  Before  Pattbe- 
SON,  J. 

From  the  record  it  appeared  that  F.  Pierce  Buckley 
filed,  in  the  court  below,  the  following  bill  against 
George  F.  Holmes,  Robert  J.  Moore  and  Harry  Kuenzel, 
City  Commissioners  for  the  County  of  Philadelphia : 
'*To  the  Honorable  the  Judges  of  said  Court : 

"Your  orator  complains  and  says : 

^^First. — I  am  a  citizen  of  the  United  States  and  of 
this  Commonwealth,  a  resident  of  the  City  and  County 
of  Philadelphia,  and  an  owner  of  real  and  personal  prop- 
erty in  said  city  and  county  upon  which  I  am  required 
to  and  annually  do  pay  taxes  to  said  city  and  county  and 
also  to  said  Commonwealth,  which  said  taxes  will  be 
wrongfully  increased  and  I  will  be  compelled  to  pay 
such  wrongful  increase  if  the  defendants  make  the  ex- 
penditures hereinafter  specified. 

*^Second. — The  defendants  are  the  city  commissioners 
of  the  County  of  Philadelphia,  charged  by  law  with  the 
duty  of  preparing,  printing  and  distributing  the  sample 
and  official  ballots  to  be  voted  by  the  electors  of  said 
city  and  county  at  every  election,  including  those  to  be 
used  at  the  municipal  election  to  be  held  on  the  sixth 
day  of  November  of  this  year. 

"Third.— On  November  2,  1915,  Hon.  Morris  Dallett 
was  elected  a  judge  of  the  Orphans'  Court  for  the  Coun- 
ty of  Philadelphia,  one  of  the  courts  of  record  of  this 
Commonwealth,  to  serve  for  the  term  of  ten  years  from 
the  first  Monday  of  January,  1916,  was  duly  commis- 
sioned for  said  term,  duly  qualified  himself  for  and 
entered  upon  the  performance  of  the  duties  of  said  office, 
and  continued  therein  until  his  death  on  August  23, 
1917. 

"Fourth. — By  reason  of  his  death  more  than  two 
months,  but  less  titan  three  months  prior  to  the  election 


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BUCKLEY,  Appellant,  v.  HOLMES  et  al.  179 

19170  Statement  of  Facts. 

to  be  held  on  November  6,  1917,  a  grave  and  important 
public  question  has  arisen,  viz,  is  the  vacancy  thus  oc- 
casioned to  be  filled  by  the  electors  at  said  election  ?  Un- 
less said  question  is  judicially  determined  prior  to  the 
time  for  printing  the  ballots  for  said  election  great  and 
unnecessary  exi)ense  will  be  incurred,  and  because  of 
the  fact  that  two  other  vacancies  will  exist  and  have  to 
be  filled  thereat  owing  to  the  expiration  of  the  terms 
of  office  of  Hon.  Joseph  F.  Lamorbllb  and  Hon.  Edward 
A.  Anderson,  two  other  of  the  judges  of  said  court,  un- 
less said  question  is  decided  prior  to  the  holding  of  said 
election  great  confusion  and  uncertainty  will  result  ow- 
ing to  the  fact  that  the  electors  will  not  know  how  many 
judges  are  to  be  elected  to  said  court  at  said  election, 
many  ballots  may  be  rejected  and  not  counted  because 
in  fact  three  are  voted  for  by  the  electors,  and  many 
electors  may  lose  a  portion  of  their  right  of  suffrage  by 
voting  for  but  two  judges  when  three  are  to  be  elected. 

"Fifth.— By  Article  V,  Section  25,  of  the  Constitution 
of  this  Commonwealth,  it  is  provided  as  follows : 

"*Any  vacancy  happening  by  death,  resignation  or 
otherwise,  in  any  court  of  record,  shall  be  filled  by  ap- 
pointment of  the  governor,  to  continue  until  the  first 
Monday  of  January  next  succeeding  the  first  general 
election  which  shall  occur  three  or  more  months  after 
the  happening  of  said  vacancy.' 

"At  the  time  of  the  adoption  of  the  Constitution,  it 
was  provided  by  Article  VIII,  Section  2,  that 

"  The  general  election  shall  be  held  annually  on  the 
Tuesday  next  following  the  first  Monday  of  Novem- 
ber'...... 

"That  provision,  however,  was  amended  by  amend- 
ment five  of  the  amendments  of  1909  (P.  L.  948)  so  as  to 
read  as  follows : 

"  'The  general  election  shall  be  held  biennially  on  the 
Tuesday  next  following  the  first  Monday  of  November 
in  each  even-numbered  year^ 

"ithe  provision  last  quoted  when  applied  to  Article  V, 


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180  BUCKLEY,  Appellant,  r.  HOLJIES  et  Al. 

Statement  of  Facts.  [25d  Fa. 

Section  25,  above  quoted,  would  require  the  vacancy 
caused  by  the  death  of  Judge  Dallbtt  to  be  filled  by  the 
electors  at  the  election  to  be  held  on  November  5,  1918; 
but  by  amendment  six  of  the  amendments  to  the  Consti- 
tution of  1909  (P.  L.  948)  adopted  at  the  same  time  as 
the  amendment  last  above  quoted,  Article  VIII,  Section 
3,  of  the  Constitution  is  amended  to  read  as  follows : 

"*A11  judgeg  elected  by  the  electors  of  the  State  at 
large  may  be  elected  at  either  a  general  or  municipal 
election,  as  circumstances  may  require.  All  elections 
for  judges  of  the  courts  for  the  several  judicial  districts, 
and  for  county,  city,  ward,  borough  and  township  of- 
ficers, for  regular  terms  of  service,  shall  be  held  on  the 
municipal  election  day ;  namely,  the  Tuesday  next  fol- 
lowing the  first  Monday  of  November  in  each  odd-num- 
bered year,  but  the  general  assembly  may  by  law  fix  a 
different  day,  two-thirds  of  all  the  members  of  each 
house  consenting  thereto;  provided,  that  such  election 
shall  always  be  held  in  an  odd-numbered  year.' 

"Nowhere  is  it  defined  by  any  of  the  amendments  of 
1909,  what  courts  are  ^courts  for  the  several  judicial 
districts,'  but  by  Sections  4  and  5  of  Article  V,  of  the 
Constitution  as  originally  adopted,  and  Sections  13  and 
14  of  the  Schedule  thereto,  the  only  courts  which  were 
courts  for  'judicial  districts'  were  the  several  Courts 
of  Common  Pleas  of  the  Commonwealth,  and  the  only 
'judges  of  the  courts  for  the  several  judicial  districts,' 
were  judges  of  the  said  Courts  of  Common  Pleas.  Said 
judges  of  the  said  Courts  of  Common  Pleas  became  vir- 
tute  officii  judges  of  the  Orphans'  Court  of  the  pari;icu- 
lar  counties  of  their  districts  by  Article  V,  Section  9,  of 
the  Constitution,  until  a  county  had  a  population  ex- 
ceeding 150,000,  or  until,  notwithstanding  a  lesser  popu- 
lation existed,  the  general  assembly  decided  that  it 
needed  a  separate  Orphans'  Court,  when  by  Article  V, 
Section  22,  a  separate  Orphans'  Court  was  created  for 
that  county.  By  virtue  of  said  provision  all  Orphans' 
Courts  became  and  were  Orphans'  Courts  for  particular 


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BUCKLEY,  Appellant,  r.  HOLMES  et  al.  181 

1917.J  Statement  of  Facts. 

counties,  and  never  for  any  judicial  district;  and  (with 
the  single  exception  of  certain  language  appearing  in 
the  Act  of  June  7,  1917),  such  has  been  the  con- 
tinuous and  uninterrupted  title  given  to  said  Or- 
phans' Courts  and  the  judges  thereof  by  the  legislative 
and  executive  departments  of  the  State  government  in 
all  their  official  actions  ever  since  the  adoption  of  the 
present  Constitution  of  this  Commonwealth.  I  there- 
fore aver  that  amendment  six  of  the  amendments  of  1909, 
above  quoted,  does  not  apply  to  the  vacancy  caused  by 
the  death  of  Judge  Dallbtt^  but  that  the  vacancy  is  to 
be  filled  by  the  electoi*s  of  this  county  at  the  electi«i  to 
be  held  November  5, 1918. 

"Sixth. — By  amendment  one  of  the  amendments  of 
the  Constitution  of  1909  (P.  L.  948)  it  is  provided  as 
follows : 

"  ^He  (the  Governor),  shall  nominate  and,  by  and 
with  the  advice  and  consent  of  two-thirds  of  all  the  mem- 
bers of  the  Senate,  appoint  a  Secretary  of  the  Common- 
wealth and  an  Attorney  General  during  pleasure^  a  su- 
perintendent of  public  instruction  for  four  years,  and 
such  other  officers  of  the  Commonwealth  as  he  is  or  may 
be  authorized  by  the  Constitution  or  by  law  to  appoint ; 
he  shall  have  power  to  fill  all  vacancies  that  may  hap- 
pen, in  offices  to  which  he  may  appoint,  during  the  recess 
of  the  senate,  by  granting  commissions  which  shall  ex- 
pire at  the  end  of  their  next  session ;  he  shall  have  power 
to  fill  any  vacancy  that  may  happen,  during  the  recess 
of  the  Senate,  in  the  office  of  auditor  genial.  State 
treasurer,  secretary  of  internal  affairs  or  superintend- 
ent of  public  instruction,  in  a  judicial  office,  or  in  any 
other  elective  office  which  he  is  or  may  be  authorized  to 
fill ;  if  the  vacancy  shall  happen  during  the  session  of 
the  Senate,  the  Governor  shall  nominate  to  the  Senate, 
before  their  final  adjournment,  a  proper  person  to  fill 
said  vacancy;  but  in  any  such  case  of  vacancy,  in  an 
elective  office,  a  person  shall  be  chosen  to  said  office  on 
the  next  election  day  appropriate  to  such  office  accord- 


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182  BUCKLEY,  AppeUant,  v.  HOLMES  et  al. 

Statement  of  Facts.  [259  Pa. 

ing  to  the  proyisions  of  this  Constitution,  unless  the  va- 
cancy shall  happen  within  two  calendar  months  immedi- 
ately preceding  such  election  day,  in  which  case  the 
election  for  said  office  shall  be  held  on  the  second  suc- 
ceeding election  day  appropriate  to  such  office.  In  act- 
ing on  executive  nominations  the  Senate  shall  sit  with 
open  doors,  and,  in  confirming  or  rejecting  the  nomi- 
nations of  the  (Governor,  the  vote  shall  be  taken  by  yeas 
and  nays  and  shall  be  entered  on  the  journal.' 

*'By  Article  V,  Section  25,  of  the  Constitution,  which 
Section  never  has  been  amended,  it  is  provided  as  fol- 
lows : 

"'Any  vacancy  happening  by  death,  resignation  op 
otherwise,  in  any  court  of  record,  shall  be  filled  by  ap- 
pointment of  the  Governor,  to  continue  until  the  first 
Monday  of  January  next  succeeding  the  first  general 
election  which  shall  occur  three  or  more  mcmths  after 
the  happening  of  said  vacancy.' 

'^I  aver  that  there  are  other  judicial  offices  than  judges 
of  courts  of  record,  and  that  under  said  provisions  va- 
cancies in  courts  of  record  cannot  be  filled  at  the  next 
election  appropriate  to  the  election  of  such  judges,  un- 
less that  vacancy  occurred  more  than  three  months  prior 
to  said  election,  and  that  vacancies  in  judicial  offices 
other  than  courts  of  record  can  be  filled  at  the  next 
election  appropriate  to  the  election  of  such  officers  if 
the  vacancy  occurred  not  less  than  two  months  prior  to 
said  election.  And  I  further  aver  that  as  Judge  Dal- 
LETT  was  a  judge  of  a  court  of  record,  and  as  his  death 
did  not  occur  three  or  more  months  before  the  election 
to  be  held  November  6, 1917,  the  vacancy  caused  thereby 
cannot  be  filled  at  said  election,  no  matter  what  con- 
struction be  given  to  the  constitutional  provisions  set 
forth  in  the  fifth  paragraph  of  this  bill. 

"Seventh.— By  Section  5  of  the  Act  of  July  24,  1913, 
P.  L.  1001,  as  amended  by  the  Act  of  May  18, 1917,  P.  L. 
135,  it  is  provided  that  nomination  petitions  for  judges 
of  courts  of  record  shall  be  filed  *at  least  forty  days  prior 


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BUCKLEY,  AppeUant,  v.  HOLMES  et  al.  183 

1917.]  Statement  of  Facts. 

to  the  primary/  which  primary  is  to  be  held  this  year 
on  the  19th  day  of  September.  The  death  of  Judge  Dal- 
liBTT  as  above  stated,  occurred  less  than  ^f orty  days  prior 
to  the  primary.'  By  Section  15  of  the  said  Act  of  1913, 
it  is  provided  that  where  vacancies  are  to  be  filled  at  the 
election  immediately  following  a  primary,  and  it  is  too 
late  to  file  nominating  petitions  for  that  primary,  that 
nominating  petitions  may  be  filed,  and  the  names  of  the 
candidates  specified  therein  shall  be  printed  on  the  of- 
ficial ballot  for  the  general  election  then  next  ensuing, 
without  those  persons  being  nominated  at  any  primary 
election.  ' 

"Eighth. — A  large  number  of  persons,  claiming  that 
the  vacancy  caused  by  the  death  of  Judge  Dallett  is  to 
be  filled  at  the  election  to  be  held  on  November  6,  1917, 
have  applied  for  and  obtained  nominating  petitions  and 
intend  to  have  them  duly  signed,  certified  and  filed  for 
the  purpose  of  having  the  names  of  the  nominees  speci- 
fied therein  placed  upon  the  official  ballot  for  said  elec- 
tion; and  the  defendants  averring  that  the  questions 
raised  iare  judicial  questions  which  ought  not  to  be  de- 
cided by  them,  have  announced  their  determination  to 
print  all  said  names  upon  the  official  ballot  for  said  elec- 
tion, unless  restrained  from  so  doing  by  a  decree  of  court. 
The  effect  of  printing  said  names  upon  the  official  ballot 
will  be  to  largely  increase  the  size  thereof,  to  largely 
increase  the  difficulty  of  properly  marking  the  ballot; 
and  to  largely  add  to  the  expense  of  said  printing,  which 
increased  expense  will  have  to  be  borne  by  your  orator 
and  the  other  taxable  citizens  and  inhabitants  of  this 
county  and  State. 

**Wherefore  needing  equitable  relief  your  orator 
prays: 

'^1.  That  the  defendants  and  each  of  them  be  perpetu- 
ally enjoined  and  restrained  from  printing  upon  the  of- 
ficial ballot  for  the  election  to  be  held  November  6, 1917, 
any  name  or  names  whatsoever  of  persons  nominated  for 
the  office  of  judges  of  the  Orphans'  Court  of  Philadel- 


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184  BUCKLEY,  Appellant,  v.  HOLMES  et  al. 

Statement  of  Facts — Opinion  of  the  Court  [259  Pa. 
phia  County,  other  than  those  nominated  at  the  primary 
to  be  held  September  19,  1917,  to  fill  the  vacancies 
caused  by  the  expiration  of  the  term  of  ofl&ce  of  the  Hon. 
Joseph  F.  Lamorelle  and  Hon.  Edwabd  A.  Andbbson. 

"2.  That  it  be  decreed  at  what  election  the  vacancy 
in  said  Orphans'  Court,  caused  by  the  death  of  the  Hon. 
MoBRis  Dallbtt,  shall  be  filled. 

**3.  That  such  other  relief  be  granted  your  orator 
as  the  facts  shall  warrant."     , 

An  answer  to  the  bill  was  filed  concurrently  with  the 
bill,  and,  on  the  same  day,  the  bill  was  dismissed  without 
any  opinion  by  the  court  setting  forth  the  reasons  for 
its  action.    Plaintiff  appealed. 

Error  assigned  was  the  decree  of  the  court. 

William  A.  Hayes,  for  appellant. 

Alex.  Simpson,  Jr.,  for  appellees. 

Opinion  by  Mr.  Chief  Justice  Brown,  October  15, 
1917: 

By  the  Act  of  May  19,  1874,  P.  L.  206,  the  Orphans' 
Courts  of  the  State  are  made  courts  of  record.  Under 
Section  25  of  Article  V  of  the  Constitution,  **any  va- 
cancy happening  by  death,  resignation  or  otherwise,  in 
apy  court  of  record,  shall  be  filled  by  appointment  by  the 
Governor,  to  continue  till  the  first  Monday  of  January 
next  succeeding  the  first  general  election,  which  shall 
occur  three  or  more  months  after  the  happening  of  such 
vacancy."  This  provision  remains  unchanged,  and,  but 
for  certain  amendments  to  others  in  the  Constitution, 
it  could  not  be  questioned  that  the  successor  of  Judge 
DALLETT-^whp  died  August  23,  1917, — ^would  be  an  ap- 
pointee of  the'Governor,  to  serve,  until  the  first  Monday 
of  January  after  the  general  election  in  .1918,  when  a 
successor  would  be  elected  by  the  electors  of  the  county. 

Section  2,  Article  VIII,  of  the  Constitution,  as  origi- 


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BUCKLEY,  Appellant,  v.  HOLMES  et  al.  185 

1917.]  Opiuiou  of  the  Court. 

nally  adopted,  provided  that  the  general  election  should 
be  held  annually  on  the  Tuesday  following  the  first  Mon- 
day of  November,  and  section  three  of  the  same  article 
directed  that  all  elections  for  city,  ward,  borough  and 
township  officers,  for  regular  terms  of  service,  should 
take  place  on  the  third  Tuesday  of  February.  These  two 
provisions  have  been  changed  by  the  fifth  and  sixth 
amendments  of  1909,  and  now  read  as  follows :  *^Section 
2.  The  general  election  shall  be  held  biennially  on  the 
Tuesday  next  following  the  first  Monday  of  November 
in  each  even-numbered  year,  but  the  General  Assembly 
may  by  law  fix  a  different  day,  two-thirds  of  all  the  mem- 
bers of  each  house  consenting  thereto :  Provided,  That 
such  election  shall  always  be  held  in  an  even-numbered 
year.*'  "Section  3.  All  judges  elected  by  the  electors  of 
the  State  at  large  may  be  elected  at  either  a  general  or 
municipal  election,  as  circumstances  may  require.  All 
elections  for  judges  oif  the  courts  for  the  several  judicial 
districts,  and  for  county,  city,  ward,  borough,  and  town- 
ship officers,  for  regular  terms  of  service,  shall  be  held 
on  the  municipal  election  day;  namely,  the  Tuesday 
next  following  the  first  Monday  of  November  in  each 
odd-numbered  year,  but  the  General  Assembly  may  by 
law  fix  a  different  day,  two-thirds  of  all  the  members  of 
each  house  consenting  thereto:  Provided,  That  such 
election  shall  always  be  held  in  an  odd-numbered  year.*' 

The  February  election  has  been  abolished,  and  there  is 
now  but  one  election  each  year,  held  on  the  Tuesday 
following  the  first  Monday  of  Novembei*.  The  general 
election  is  biennial  in  each  even-numbered  year;  the 
municipal,  on  the  same  day  in  odd-numbered  years.  The 
first  question  to  be  considel^d  is,  at  which  of  these  elec- 
tions are  Orphans'  Court  judges  elected? 

By  the  amendments  of  1909  it  was  intended  to  get  rid 
of  the  spring  election  and  to  continue  the  constitutional 
provision  for  the  election  of  local  or  municipal  officers 
on  a  day  different  from  that  on  which  general  State  of- 
ficers are  elected.    While  judges  of  the  several  judicial 


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186  BUCKLEY,  Appellant,  v.  UOLMES  et  al. 

Opinion  of  the  Court  [259  Pa. 

districts  are  State  officers,  they  are  compelled  to  reside 
in  the  districts  for  which  they  are  elected,  and  the 
duties  which  they  regularly  perform  are  locaL  It  was 
doubtless  for  this  reason  that  they  were  included,  under 
the  sixth  amendment  of  1909,  in  the  class  of  officers  to 
be  elected  at  municipal  elections.  If  this  be  true  of 
Common  Pleas  judges,  it  is  certainly  no  less  true  of  an 
Orphans'  Court  judge,  whose  jurisdiction  is  peculiarly 
local.  Every  act  of  assembly  creating  a  separate  Or- 
phans' Court  speaks  of  it  as  the  court  of  the  county  in 
which  it  is  established,  and  the  same  is  true  of  the  acts 
creating  additional  Orphans'  Court  judges  in  the  Coun- 
ties of  Allegheny  and  Philadelphia.  Vide  Acts  of  June 
13,  1883,  P.  L.  97;  March  28,  1895,  P.  L.  31;  April  11, 
1901,  P.  L.  71;  May  2,  1901,  P.  L.  117;  July  11,  1901, 
P.  L.  655;  July  11, 1901,  P.  L.  657;  May  25, 1907,  P.  L. 
260;  May  5,  1881,  P.  L.  12;  April  28,  1887,  P.  L.  72; 
March  22,  1907,  P.  L.  26.  An  Orphans'  Court  judge  is 
not  a  judge  of  a  designated  judicial  district  of  the  State, 
but  of  a  court  of  the  county  in  which  he  resides.  If  it 
be  one  of  two,  three  or  four,  constituting  a  single  ju- 
dicial district,  he  is  not  a  judge  of  .that  district,  with 
jurisdiction  extending  all  over  it,  as  does  that  of  each  of 
the  Common  Pleas  judges  within  it.  His  jurisdiction  is 
limited  to  the  county  in  which  his  court  exists.  This 
being  true,  he  is  not  a  judge  within  the  strict  meaning 
of  the  words,  "judges  of  the  courts  for  the  several  ju- 
dicial districts"  appearing  in  the  sixth  amendment  of 
1909;  but  it  does  violence  to  that  amendment  to  hold 
that  it  was  not  intended  thereby  to  include  Orphans' 
Court  judges,  as  welj  as  Common  Pleas  judges,  in  the 
class  of  officers  to  be  elected  at  municipal  elections  in 
odd-numbered  years.  Keeping  in  mind  the  manifest  in- 
tention of  the  sixth  amendment,  to  which  we  have  al- 
luded, it  seems  to  be  quite  clear  that  the  Orphans'  Court 
judges  of  the  State  are  to  be  elected  at  the  same  time 
that  elections  are  held  "for  judges  of  the  courts  for  the 
several  judicial  districts,  and  for  county,  city,  ward, 


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BUCKLEY,  Appellant,  v.  HOLMES  et  al.  187 

1917.]  Opinion  of  the  Court. 

borough  and  township  officers^  for  regular  terms  of  serv- 
ice." Unless  this  be  so,  Orphans'  Court  judges  are  in 
the  anomalous  situation  of  having  no  time  fixed  for  theiv 
election.  They  are  made  elective  by  the  Constitution, 
but,  as  amended,  it  will  be  searched  in  vain  to  find  any 
other  provision  than  amendment  six  of  1909  under  which 
they  can  be  elected. 

The  second  question  for  determination  is.  Shall  Judge 
Dallett's  successor  be  elected  this  year  or  in  1919?  As 
already  observed,  Section  25  of  Article  V  of  the  Consti- 
tution has  never  been  changed.  It  remains  just  as  it 
was  originally  adopted.  It  is  a  section  of  "The  Judici- 
ary" article,  and  specifically  provides  that  any  vacancy 
happening  by  death  in  any  court  of  record  shall  be  filled 
by  appointment  by  the  Governor,  "to  continue  till  the 
first  Monday  of  January  next  succeeding  the  first  gen- 
eral election,  which  shall  occur  three  or  more  months 
after  the  happening  of  such  vacancy.''  This  means  that 
if  the  vacancy  happens  within  three  months  preceding 
the  next  election  at  which  judges  are  elected,  the  ap- 
pointee shall  hold  his  ofQce  until  the  first  Monday  of 
January  following  the  second  election  for  judges  held 
after  the  death  which  caused  the  vacancy.  By  Section 
8,  Article  IV,  of  the  Constitution,  known  as  "The  Ex- 
ecutive" article,  it  is  provided  that  the  (Governor  shall 
fill,  by  appointment,  vacancies  in  certain  offices,  includ- 
ing "a  judicial  office" ;  and  a  further  provision  is  that 
"in  any  such  case  of  vacancy,  in  an  elective  office,  a 
[>er8on  shall  be  dhosen  to  saiid  office  at  the  next  general 
election,  unless  the  vacancy  shall  happen  within  three 
calendar  months  immediately  preceding  such  election, 
in  which  case  the  election  for  said  office  shall  be  held  at 
the  second  succeeding  general  election."  This  provision 
was  entirely  consistent  with  Section  25  of  Article  V. 
Has  that  section  been  made  inoperative  by  the  amend- 
ment of  1909,  amending  Section  8  of  Article  IV?  That 
section,  as  amended,  declares  that,  in  case  of  vacancy  in 
an  elective  office,  the  person  appointed  by  the  Governor 


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188  BUCKLEY,  Appellant,  v.  HOLMES  et  al. 

Opinion  of  the  Court.  [259  Pa. 

to  fill  it  shall  be  succeeded  by  some  one  chosen  on  the 
next  election  day  appropriate  to  such  office,  unless  the 
vacancy  shall  happen  within  two  calendar  jnoiiths  im- 
mediately preceding  such  election,  in  which  case  the 
election  for  said  office  shall  be  held  on  the  second  suc- 
ceeding election  day  appropriate  to  such  office.  Judge 
Dallett  died  within  three  calendar  months  of  the  elec- 
tion to  be  held  for  judges  this  year,  but  more  than  two 
calendar  months  prior  thereto.  He  was  a  judge  of  a 
court  of  record,  and  specific  provision  is'made  in  Section 
25  of  Article  V  of  the  Constitution  for  the  filling  of  that 
vacancy  by  appointment  by  the  Governor  of  a  person 
who  shall  hold  office  until  the  first  Monday  of  January 
following  the  next  election  after  this  year  for  judges 
other  than  those  elected  by  the  electors  of  the  State  at 
large.  That  year  will  be  1919.  True,  section  eight  pro- 
vides for  appointment  by  the  Governor  to  fill  vacancies 
**In  a  judicial  office."  "A  judicial  office,"  however,  is  a 
general  term  and  includes  courts  of  record  and  courts 
not  of  record.  The  specific  provision  in  the  judiciary 
article  of  the  Constitution  for  filling  vacancies  in  courts 
of  record  has,  as  already  stated,  not  been  changed  by 
amendment,  and  even  if  there  were  an  irreconcilable 
conflict  between  it  and  the  general  provision  of  Section 
8  of  Article  IV,  as  amended,  a  cardinal  rule  of  construc- 
tion applicable  to  constitutions  as  well  as  statutes,  re- 
quires that  the  specific  provision  shall  prevail :  6  Amer. 
&  Eng.  Ency.  of  Law  (2d  Ed.),  927.  "  ^Where  there  are 
in  an  act  specific  provisions  relating  to  a  particular  sub- 
ject, they  must  govern  in  respect  of  that  subject,  as 
against  general  provisions  in  other  parts  of  the  statute, 
although  the  latter  standing  alone  would  be  broad 
enough  to  include  the  subject  to  which  the  particular 
provisions  relate.  Hence,  if  there  are  two  acts,  of  which 
one  is  special  and  particular,  and  clearly  includes  the 
matter  in  controversy,  w^hilst  the  "other  is  general,  and 
w^ould,  if  standing  alone,  include  it  also,  and  if,  reading, 
the  general  provision  side  by  side  with  tftie  particular 


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BUCKLEY,  Appellant,  r.  HOLJIES  et  al.  189 

1917.]  Opinion  of  the  Court. 

one,  tlie  inclusion  of  that  matter  in  the  former  would 
produce  a  conflict  between  it  and  the  special  provision, 
it  must  be  taken  that  the  latter  was  designed  as  an  ex- 
ception to  the  general  provision^ :  Endlich  on  the  Inter- 
pretation of  Statutes,  Section  216;  Felt  v.  Pelt,  19  Wis. 
193;  State  v.  Goetze,  22  Wis.  363;  Crane  v.  Reeder,  22 
Mich.  322.  *Where  a  general  intention  is  expressed,  and 
the  act  also  expresses  a  particular  intention  incompat- 
ible with  the  general  intention,  the  particular  intention 
is  to  be  considered  in  the  nature  of  an  exception' :  Dwar- 
ris  on  Statutes":  Thomas  v.  Hinkle,  126  Pa.  478. 

The  amendment  of  Section  8,  Article  IV,  of  the  Con- 
stitution, does  not  purport  to  be  a  new  provision.  It 
recites  the  original  section,  and  the  meaning  now  to  be 
given  to  the  words,  "in  a  judicial  office,''  is  the  same  as 
if  the  section  had  not  been  amended.  This  is  conceded 
by  learned  counsel  for  appellees,  who  also  frankly  ad- 
mits that  "It  necessarily  follows  that  when  Article  IV, 
Section  8,  was  amended,  and  the  words  in  a  judicial  of- 
fice remained  unchanged,  they  cannot  be  given  such  an 
enlarged  meaning  as  to  render  Article  V,  Section  25, 
wholly  nugatory ;  and  hence  now,  as  before  the  amend- 
ment. Article  V,  Section  25,  governs  and  the  vacancy 
caused  by  the  death  of  Judge  Dallett  is  not  to  be  filled 
at  the  present  time." 

And  now,  October  15, 1917,  the  decree  of  the  court  be- 
low is  reversed,  the  bill  is  reinstated,  and  it  is  ordered, 
adjudged  and  decreed  that  the  defendants,  and  each  of 
them,  be  perpetually  enjoined  and  restrained  from  print- 
ing upon  the  official  ballot  for  the  election  to  be  held 
November  6, 1917,  any  name  or  names  whatsoever  of  per- 
sons nominated  for  the  office  of  judge  of  the  Orphans' 
Court  of  Philadelphia  County,  other  than  those  nomi- 
nated at  the  primary  held  September  19,  1917,  to  fill 
the  vacancies  caused  by  the  expiration  of  the  terms  of 
office  of  the  Honorable  Joseph  F.  Lamoeellb  and  Hon- 
orable Edward  A.  Anderson,  the  costs  below  and  on  this 
appeal  to  be  paid  by  the  County  of  Philadelphia. 


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190  NBBL'S  ESTATE. 

Syllabus— Statement  of  Facts.  [369  Pa. 

NeeFs  Estate. 

WUh — Consiruciion — Legacies — Charitable  bequests — IdenHfi- 
cation  of  legatee. 

A  testatrix  made  her  will  in  1909,  whereby  she  bequeathed  one- 
fourth  of  the  residue  of  her  estate  to  the  '^ Allegheny  County 
Children's  Aid  Society,  of  Allegheny  County,  Pennsylvania/'  The 
testatrix  died  in  March,  1915.  At  the  time  of  the  making  of  tho 
will  there  was  in  Allegheny  County  an  unincorporated  body  known 
as  the  Children's  Aid  Society  of  Allegheny  County.  In  Hay,  1918, 
the  majority  of  the  members  of  such  society  voted  to  incorporate 
the  society,  and  in  June,  1913,  such  society  was  incorporated  by 
the  Common  Pleas  Court  Thereafter  certain  persons  who  had 
been  members  of  the  unincorporated  body,  not  approving  of  the 
incorporation,  formed  an  organization  known  as  the  Children's 
Aid  Society  of  Western  Pennsylvania,  Allegheny  County  Auxil- 
iary. Each  of  such  organizations  claimed  the  legacy.  Held,  the 
court  properly  awarded  the  legacy  to  the  incorporated  body. 

Argiied  Sept.  25, 1917.  Appeal,  No.  103,  Oct.  T.,  1917, 
by  Mary  Aylesworth  and  Augusta  H.  Wallace,  in  "behalf 
of  themselves  and  all  others  interested  in  the  Children's 
Aid  Society  of  Western  Pennsylvania,  Allegheny  Coun- 
ty Auxiliary,  an  unincorporated  association,  from  decree 
of  O.  C.  Jefferson  Co.,  April  T.,  1916,  No.  16,  dismissing 
exceptions  to  report  of  auditor  in  Estate  of  Nancy  Neel, 
Deceased.  Before  Bbown,  C.  J.,  Mbstrbzat,  Pottbb, 
Stewart,  Frazer  and  Walung,  JJ.    Affirmed. 

Exceptions  to  report  of  auditor. 

The  facts  appear  in  the  following  excerpts  from  the 
opinion  of  Corbet,  P.  J. : 

While  there  is  considerable  volume  to  this  contro- 
versy, the  controlling  matters  may  be  found  within  com- 
paratively limited  bounds.  A  number  of  ladies,  with  the 
philanthropic  purpose  of  caring  for  abandoned,  neg- 
lected and  dependent  children,  met  together  in  the  City 
of  Pittsburgh,  and  on  June  22,  1885,  organized  them- 


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NEBL'S  ESTATE.  191 

1917.]  Statement  of  Facts, 

selves  for  that  purpose  under  the  name  of  "Children's 
Aid  Society  of  Allegheny  County  and  Bureau  of  Infor- 
mation," a  little  later  abbreviating  the  name  to  "Chil- 
dren's Aid  Society  of  Allegheny  County."  Similar  so- 
cieties having  been  formed  in  other  Western  Pennsyl- 
vania counties,  it  was,  by  concerted  action  of  the  various 
societies  in  the  western  counties  of  the  State,  decided  to 
form  a  federaticm,  composed  of  delegates  from  each  of 
the  county  societies,  and  to  incorporate  it,  in  order  to 
obtain  appropriations  from  the  State  for  distribution 
to  the  work  among  the  different  county  societies,  and  to 
serve  as  a  means  of  having*  an  interchange  of  cases  be- 
tween the  counties,  and,  accordingly  in  1889,  the  Chil- 
dren's Aid  Society  of  Western  Pennsylvania  was  incor- 
porated. 

Some  time  after  this  incorporation  the  Children's  Aid 
Society  of  Allegheny  County,  which  had  been  acting 
under  the  voluntary  association  of  its  members,  wfhich 
has  been  mentioned,  as  did  others  of  the  county  societies, 
appended  to  its  name  "Auxiliary  to  the  Children's  Aid 
Society  of  Western  Pennsylvania,"  and  thereafter  until 
the  incorporation  hereafter  mentioned  the  Children's 
Aid  Society  of  All^heny  County,  thus  mentioned,  re- 
ceived a  portion  of  the  appropriations  made  by  the  State 
to  the  Children's  Aid  Society  of  Western  Pennsylvania, 
and  continued  to  carry  on  its  work,  availing  itself  of 
the  facilities  afforded  by  the  Western  Pennsylvania  So- 
ciety. What  connection  there  was  with  the  Society  of 
Western  Pennsylvania  seems  to  have  been  held  lightly 
by  the  county  societies,  each  one  of  which  appears  to 
have  been  free  to  drop  it  whenever  it  chose  to  do  so. 

On  August  30, 1909,  Nancy  Neel,  of  Brookville,  Jeffer- 
son County,  Pennsylvania,  made  her  last  will  and  testa- 
ment, wherein  is  found,  inter  alia,  the  following  so  far 
as  it  is  necessary  to  quote :  "The  remainder  of  the  said 
(me-half  principal  sum  of  my  estate  shall  be  divided  as 
follows :  One-fourth  part  thereof  to  the  Allegheny  Coun- 
ty  Children's  Aid  Society  of  Allegheny  County,  Penn- 


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192  NEBL'S  ESTATE. 

Statement  of  Facts.  [269  Pa. 
sylvania;  one-fourth  part  thereof  to  the  Presbyterian 
Hospital  of  Allegheny  County,  Pennsylvania;  one- 
fourth  part  thereof  to  the  Passavant  Hospital  of  Pitts- 
burgh, Pennsylvania ; — the  bequest  to  the  Chil- 
dren's Aid  Society  giving  ride  to  this  controversy. 

The  legislative  bodies  of  the  State  at  the  session  of 
1913,  passed  an  act  (later  vetoed  by  the  Governor,  but 
not  until  after  the  incorporation  hereinafter  mentioned) 
appropriating  |20,000  to  the  Children's  Aid  Society  of 
Alleghaiy  County,  which  made  it  necessary,  if  the  latter 
was  to  receive  the  money,  that  it  should  be  incorporated. 
Accordingly  a  meeting  of  the  society  was  called  for  May 
17,  1913,  to  consider  the  matter  of  securing  a  charter. 
While  not  positively  testified  that  all  the  members  had 
notice  of  the  meeting,  it  is  a  clear  inference  from  the  es- 
tablished facts  that  a  notice  was  sent  to  each  member. 
Out  of  a  board  membership  of  twenty-five,  thirteen  at- 
tended the  meeting  in  person  and  three  sent  proxies. 
The  action  taken,  as  appears  by  the  minutes  was  as  fol- 
lows: "The  president  announced  that  the  legislature 
had  appropriated  f20,000  to  the  Allegheny  County  So- 
ciety, and  that  to  receive  the  money  it  would  be  neces- 
sary for  us  to  have  our  own  charter.  After  a  very  care- 
ful and  conscientious  consideration  of  the  matter,  and 
comments  from  the  members  present,  it  was  moved  by 
Mrs.  Hickman,  seconded  by  Mrs.  Rankin,  that  we  apply 
for  a  charter.  All  voted  for  it  but  Mrs.  Wallace  and 
Mrs.  Anderson.  They  did  not  vote.  Motion  was  de- 
clared carried."  In  pursuance  of  this  action,  an  appli- 
cation for  a  charter,  executed  on  its  behalf  by  six  mem- 
bers of  the  society,  was  made  to  the  Court  of  Common 
Pleas  of  Allegheny  County,  and  in  June,  1913,  the  Chil- 
dren's Aid  Society  of  Allegheny  County  was  incorpo- 
rated by  said  court  Owing  to  the  vetoing  of  the  bill  by 
the  Governor  on  July  26, 1913,  there  was  delay  in  organ- 
izing under  the  charter,  which  did  not  take  place  until 
in  1914,  when  the  existing  officers,  who  had  previously 
been  elected,  became,  by  virtue  of  their  offices  and  in 


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NEEL'S  ESTATE.  193 

1917.]  Statement  of  Facts, 

consequence  of  their  designation  as  such  in  the  charter, 
officers  of  the  incorporated  society.  Or,  in  other  words, 
without  change  of  object  or  purpose,  custody  or  books, 
or  apparent  objection  or  friction,  the  unincorporated 
society  merged  into,  and  continued  its  business  and  ob- 
jects as  the  incorporated  society,  without  any  noticeable 
change,  save  that  it  did  not  thereafter  maintain  any  con- 
nection with  the  Society  of  Western  Pennsylvania,  and 
it  has  ever  since,  in  full  activity,  continued  its  work. 

The  audit(»r  has  found  that  on  June  22, 1914,  about  a 
year  after  application  had  been  made  for  a  charter  for 
the  Children's  Aid  Society  of  Allegheny  County,  several 
former  board  members,  including  the  two  who  had  re- 
signed before  the  organization  under  the  charter,  with 
others,  formed  a  new  organization  of  about  twenty-one 
members,  to  take  care  of  dependent  children ;  that  this 
society  affiliated  with  the  Children's  Aid  Society  of 
Western  Pennsylvania,  and  for  a  time  was  known  as  the 
"Children's  Aid  Society  of  Allegheny  County,  Auxiliary 
to  the  Children's  Aid  Society  of  Western  Pennsylvania," 
but  in  October,  1914,  on  advice  of  counsel,  changed  this 
name  and  title  to  **Children's  Aid  Society  of  Western 
Pennsylvania,  Allegheny  County  Auxiliary,"  by  which 
name  and  title  it  is  one  of  the  contesting  parties  for  the 
bequest  in  question.  The  court  has  further  expressed  its 
?iew8  upon  this  matter  in  what  is  said  upon  the  fifth  ex- 
ception. This  unincorporated  organization  is  main- 
tained, and  engages  in  t^e  work  for  which  it  was  formed. 

Nancy  Neel  died  a  resident  of  Brookville,  Jefferson 
County,  Pennsylvania,  on  March  3,  1915,  and  on  March 
9, 1915,  her  will  was  proven  and  admitted  to  probate  in 
the  register's  office  of  that  county,  and  recorded  in  Will 
Book  No.  5,  page  267. 

The  question  to  be  decided  is  which  of  these  organ- 
isations is  entitled  to  the  particular  bequest  in  questicm, 
—the  Children's  Aid  Society  of  Allegheny  County,  or, 
the  Children's  Aid  Society  of  Western  Pennsylvania, 
Allegheny  County  Auxiliary,  the  latter  claiming  to  be  a 
Vol.  cclix — 13 


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194  NBBL'S  ESTATE. 

Statement  of  Facts.  [259  Pt. 

reorganization  and  continuation  of  the  parent  Chil- 
dren's Aid  Society  of  Allegheny  County,  by  such  of  its 
members  as  did  not  give  their  affirmative  approval  and 
consent  to  the  incorporation  of  that  society,  and  to  be 
thereafter  in  continuous  succession  the  unincorpcnrated 
society  which  was  in  existence  at  the  time  Mrs.  Neel 
made  her  will. 

The  position  held  by  the  Children's  Aid  Society  of 
Western  Pennsylvania,  Allegheny  County  Auxiliary,  is 
that  the  incorporation  of  the  Children's  Aid  Society  of 
Allegheny  County  was  inoperative  and  ineffective  as  to 
those  members  of  the  society  who  did  not  vote  for  or 
attach  themselves  to  the  chartered  society,  and  that  they 
remained  without  change  the  original  association. 

The  original  association  was  not  for  profit  to  its  mem- 
bers, but  had  for  its  purpose,  caring  for  and  promoting 
the  welfare  of  abandoned,  neglected  and  dependent  chil- 
dren, as  well  for  their  good  as  for  the  good  of  the  pub- 
lic. So  far  as  the  court  is  informed  the  organization  of 
the  ladies  interested  was  without  articles  of  association 
or  fundamental  rules  specifically  defining  the  rights  of 
^  the  members  or  the  powers  of  the  association,  and  was, 
therefore,  very  loose  in  character.  Such  being  the  case, 
it  would  seem  to  be  a  necessity  that  the  control  of  its 
affairs,  and  the  determination  of  that  form  of  organiza- 
tion which  at  any  time  would  best  tend  to  the  furthering 
of  its  great  and  beneficent  purpose  should  be  peculiarly 
within  the  control  of  the  majority  of  the  members  thus 
associated  together.  Of  course,  no  one  could  be  forced 
into  corporate  membership.  Nevertheless,  the  opinion 
is  entertained  that,  under  the  circumstances  in  this  case, 
it  was  within  the  province  and  power  of  the  majority  of 
the  associates,  in  furtherance  of  the  general  purpose  and 
design  of  the  organization,  to  incorporate  as  they  did, 
especially  as  the  transfer  or  transaction  was  no  more 
than  a  change  from  an  unincorporated  situation  to  a 
corporate  situation,  and  all  of  the  activities  were  c<m- 
tinued  by  that  majority  and  have  ever  since  been  main- 


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NEEL'S  ESTATE.  195 

1917.]  Statement  of  Facts. 

tained  by  the  society.  Under  such  circumstances,  the 
very  few  who  remained  silent  ought  not  to  have  it  in 
their  power  to  block  or  prevent  that  which  the  majority 
deem  for  the  best  interest  of  the  society,  and  to  best  tend 
to  promote  and  carry  out  its  original  and  unchanged 
purposes,  nor  be  permitted  to  prevail  in  their  claim  of 
being  at  the  present  time  the  original  society. 

But  in  any  event,  how  can  such  controversy  or  its 
definite  settlement  be  of  interest  in  the  present  matter? 
It  is  quite  uncontroverted  that  a  majority  of  the  orig- 
inal society,  during  the  lifetime  of  Mrs.  Neel,  did  in- 
corporate, taking  with  them  to  the  corporation  the  name, 
identity,  actual  working  organization,  minute  book,  and 
the  like,  of  the  society,  without  legal  question  of  the 
right  so  to  do  by  any  silent  member,  and,  without  cessa- 
tion, continued,  and  has  ever  since  continued,  actively 
and  efficiently  to  carry  out  the  original  objects  and  pur- 
poses of  the  society.  Thereafter  the  donor  was  under 
no  obligation  to  investigate  whether  as  between  them- 
selves the  incorporated  society  should  administer  her 
bounty,  or  whether  the  nonjoining  members  should  do 
so.  Sufficient  for  her  purpose  that  there  was  and  con- 
tinued to  be  a  Children's  Aid  Society  of  Alleghwiy 
County,  in  uninterrupted  existence,  identically  the  same 
in  every  respect  except  for  a  merger  into  a  corporate  or- 
ganization from  an  unincorporated  one.  So  long  as  she 
lived  neither  claimant  had  a  vested  interest  in  the  be- 
quest, nor,  so  far  as  they  are  concerned,  was  there  any  oc- 
casion, at  the  time  the  charter  was  obtained,  for  deter- 
mining as  between  them,  in  her  behalf,  which  was  the 
continuing  society.  The  court  should  not  be  required  to 
determine  that  controversy  now,  nor  should  the  estate  be 
vexed  with  it. 

Furthermore,  it  is  to  be  presumed  that  Mrs.  Neel,  at 
the  time  she  made  her  will,  had  some  knowledge  at  least 
of  the  devisee  to  which  she  made  the  bequest;  that  her 
knowledge  continued  until  her  death ;  that  when  an  al<^ 
teration  was  made  in  the  organization  she  knew  of  it; 


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196  NEEL'S  ESTATE. 

Statement  of  Facts.  [258  Pa. 

aud  that  she  fully  desigued  and  intended  the  bequest  to 
go  to  that  specific  organization  which,  at  her  death, 
should  and  did  bear  the  appellation  she  applied  in  writ- 
ing the  bequest 

Although  Nancy  Neel's  will  was  made  August  30, 
1909,  and  the  Children's  Aid  Society  of  Allegheny  CJounty 
should  have  first  come  into  being  thei'eaf ter  on  June  14, 
1913,  when  incorporated  by  the  Court  of  Common  Pleas 
of  Allegheny  County,  and  if  on  her  death  on  March  3, 
1915,  no  adverse  claimant  under  the  bequest  in  question 
arose  to  dispute  the  right  to  it,  would  the  bequest  not 
go  to  the  "Children's  Aid  Society  of  Allegheny  County"? 
Could  a  residuaxy  legatee  contend  with  success  that  it 
had  lapsed  because  the  corporation  was  nonexistent 
when  the  will  was  made,  although  in  full  being  at  and 
after  the  death  of  the  testatrix?  She  had  a  beneficent 
purpose  in  view,  not  the  mere  enrichment  of  a  society, 
and,  if,  when  she  died,  there  existed  the  "Children's  Aid 
Society  of  Allegheny  County,"  corresponding  in  location 
and  almost  identically  in  name  with  the  legatee  named 
in  her  will,  and  fully  qualified  and  in  readiness  to  carry 
out  her  purpose,  would  right  and  justice  permit  her  in- 
tention to  be  thwarted?  It  is  manifest  she  had  no  in- 
tenticm  whatever  to  have  her  benefaction  exi>ended  all 
over  the  western  part  of  the  State.  This  is  clear  from 
the  wording  of  the  specific  bequest  in  association  with 
the  other  bequests  grouped  with  it:  "One-fourth  part 
thereof  to  the  Allegheny  County  Children's  Aid  Society 
of  Allegheny  County,  Pennsylvania;  one-fourth  part 
thereof  to  the  Presbyterian  Hospital  of  Allegheny  Coun- 
ty, Pennsylvania;  one-fourth  part  thereof  to  the  Passa- 
vant  Hospital  of  Pittsburgh,  Pennsylvania";  and  the 
i-emaining  one-fourth  part  conditionally  but  preferen- 
tially towards  a  hospital  "for  the  people  of  Brookville, 
Jefferson  County,  P^nsylvania."  By  name  and  loca- 
tion, object  and  purpose,  standing  and  fitness,  no  other 
organization,  at  the  time  of  the  death  of  Mrs.  Neel,  was 
apparently  or  really  so  rightfully  entitled  to  claim  and 


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NEEL'S  ESTATE.  197 

1917.]  Statemwit  of  Facte— Opinion  of  the  Court 

receive  the  bequest  in  qaestion  as  the  "CJhildr^s  Aid 
Society  of  Allegheny  CJounty.^' 

The  court  dismissed  the  exceptions.  Mary  Ayles- 
worth  and  Augusta  H.  Wallace,  in  behalf  of  themselves 
and  all  others  interested  in  the  Children's  Aid  Society 
of  Western  Pennsylvania,  Allegheny  County  Auxiliary, 
an  unincorporated  association,  appealed. 

Errors  assigned  were  in  dismissing  the  exceptions. 

Leonard  K.  Ouiler,  for  appellants. 

8.  8.  Robertson,  for  appellee. 

Per  Curiam,  October  19, 1917 : 

The  question  before  the  auditor  and  learned  court  be- 
low was  the  identification  of  a  charitable  legatee,  and  we 
have  not  been  i>ersuaded  that  there  was  error  in  their 
finding,  under  all  the  facts  developed,  that  the  "Chil- 
dren's Aid  Society  of  Allegheny  County"  is  the  legatee 
intended  by  the  testatrix. 

Appeal  dismissed  at  appellant's  costs. 


W.  F.  Gonder  and  Newton  Gronder  v.  The  Farmers 
National  Bank,  Appellant. 

Banks  and  hanhing  —  Bank  deposits  —  Transactions  outside  of 
usual  hacking  hours  —  Liability  of  hank  —  Evidence  —  Entry  in 
hank's  hooks — Attorney  and  client — Privileged  communication, 

1.  At  the  request  of  a  depositor  in  a  bank,  who  desired  to  trans- 
fer certain  funds  on  deposit  in  the  sayings  department  of  the 
bank  to  her  husband,  the  cashier  of  the  bank  went  to  the  home  of 
the  depositor  to  arrange  the  transfer.  He  prepared  a  receipt  for 
$701.20,  which  the  depositor  signed.  The  cashier  entered  credit 
in  the  pass  book  of  the  depositor's  husband  for  $701.20,  and  on  the 
books  of  the  bank  entered  a  withdrawal  of  $701.20  from  the  ac- 
count of  the  depositor.  No  money  was  paid  to  the  cashier  at  the 
home  of  the  depositor.    He  withdrew  from  the  bank  the  amount 


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198    GONDER  r.  FARMERS  NAT.  BANK,  Appellant. 

Syllabus—Statement  of  Facts.  [259  Pa. 

of  the  receipt  and  misappropriated  it.  In  an  action  by  the  hus- 
band of  the  depositor  against  the  bank  for  the  amount  misap- 
propriated, the  lower  court  decided  that  the  bank  was  liable. 
Held,  no  error. 

2.  In  such  case  it  was  not  error  to  refuse  to  permit  the  bank 
to  offer  in  evidence  its  loose-leaf  ledger  sheet  showing  the  omis- 
sion of  the  item,  as  the  bank  could  not  relieve  itself  from  paying 
mon^  because  its  officers  failed  to  make  a  proper  entry  on  its 
books. 

3.  Where  an  item  of  $1,500  was  withdrawn  from  plaintiff's  ac- 
count by  the  cashier  without  any  evidence  that  he  was  authorized 
to  make  such  withdrawal,  the  jury  were  properly  instructed  to 
allow  the  plaintiff  to  recover  the  amount  thereof. 

4.  Where  another  item  of  $3,000  was  withdrawn  by  the  cashier 
from  the  plaintiff's  account,  the  fact  that  he  deposited  with  the 
papers  in  the  bank  a  receipt  signed  by  himself,  for  the  plaintiffs 
did  not  establish  the  agency  of  the  cashier  for  the  withdrawal  of 
the  fund  or  justify  the  submission  of  the  question  of  the  agency 
of  the  cashier  to  fhe  jury. 

5.  In  such  case  the  exclusion  of  the  bank's  ledger  sheet  showing 
the  withdrawal  of  such  items  of  $1,500  and  $3,000  was  not  error, 
as  the  bank  could  not  escape  the  payment  of  the  money  by  showing 
that  it  had  charged  the  plaintiff  with  such  withdrawals  in  the  ab- 
sence of  evidence  of  authority  for  such  charga 

6.  It  was  not  error  to  refuse  to  permit  an  attorney  who  had  had  a 
conversation  with  plaintiff  in  the  presence  of  the  cashier  after  his 
relation  with  the  bank  had  terminated,  to  relate  such  conversation 
where  it  appeared  that  the  witness  was  counsel  for  the  plaintiff 
and  that  the  conversation  was  privileged. 

Argued  Sept.  25, 1917.  Appeal,  No.  106,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Somerset  Co., 
Sept.  T.,  1913,  No.  361,  on  verdict  for  plaintiff  in  case  of 
W.  F,  Qonder  and  Newton  Gonder,  Executors  of  the 
last  Will  and  Testament  of  Frederick  Gonder,  Deceased, 
V.  The  Farmers  National  Bank,  of  Somerset,  Pennsyl- 
vania, Appellant.  Before  Brown,  C.  J.,  Mestrezat, 
Potter,  Stewart,  Moschzisker,  Frazer  and  Waluno, 
JJ.    Affirmed. 

Assumpsit  for  money  deposited  in  defendant's  bank. 
The  facts  appear  in  the  following  opinion  of  Buppbl, 
P.  J.,  sur  defendant's  motion  for  a  new  trial : 


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GONDER  V.  .FAEMERS  NAT.  BANK,  Appellant.    199 
1917.]  Opinion  of  Court  below. 

On  the  trial  of  this  case  plaintiffs  claimed  a  balance 
due  on  deposits  in  defendant  bank  amounting  to  fS,- 
201.20  with  some  interest,  and  the  whole  controversy  re- 
volved around  three  items:  First,  plaintiffs  claimed 
credit  for  |701.20  deposited  July  8,  1912,  as  shown  by 
the  pass  book  furnished  by  the  bank.  The  defendant  de- 
nied that  it  received  this  sum  or  that  it  was  liable  there- 
for in  this  action.  Second,  the  defendant  claimed  a 
credit  for  withdrawal  by  Frederick  Gonder  of  |1,500  on 
the  24th  of  July,  1912,  and  plaintiffs  denied  having  with- 
drawn said  sum.  Third,  defendant  claimed  credit  for 
$3,000  withdrawn  January  10,  1913,  which  withdrawal 
plaintiffs  also  denied.  There  were  no  disputed  facts  as 
to  the  first  item.  Frederick  Gonder,  who  lived  in  Jenner 
Township,  about  twelve  miles  from  Somerset,  was  a  de- 
positor in  the  defendant  bank,  beginning  in  1902.  His 
nephew,  Henry  F.  Barron,  was  cashier  of  the  bank.  Mrs. 
Mary  Gonder,  wife  of  Frederick  Gonder,  was  also  a  de- 
positor in  the  defendant  bank.  Both  these  deposits  were 
in  the  department  known  as  the  savings  department  of 
the  bank,  and  the  interest  at  three  per  cent,  was  com- 
puted semiannually  and  credited  to  the  accounts.  On 
the  6th  of  July,  1912,  in  response  to  a  request  on  part 
of  Frederick  Gonder,  Henry  F.  Barron,  the  cashier, 
went  to  the  home  of  Mr.  Gonder  in  Jenner  Township  and 
was  there  informed  that  Mrs.  Gonder  desired  to  transfer 
her  account  in  the  bank  to  her  husband,  Frederick  Gon- 
der. Mr.  Barron  prepared  a  receipt  for  |701.20,  which 
Mrs.  (Jonder  signed.  This  receipt  is  dated  July  6, 1912, 
but  at  the  bottom,  after  the  signature  of  Mrs.  Gonder 
and  the  attesting  witness,  is  this  note:  "Farmers  Na- 
tional Bank,  Somerset,  Pa.  Paid  July  8, 1912."  At  the 
time  this  receipt  was  given  Mr.  Barron  entered  a  credit 
in  the  pass  book  of  Frederick  Gonder  for  the  same 
amount,  |701.20,  but  dated  it  as  of  July  8,  1912.  The 
transaction  took  place  on  Saturday  evening  after  bank- 
ing hours  and  therefore  the  papers  were  dated  so  as  to 
show  the  transaction  as  of  July  8th,  the  first  banking 


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200    (JONDER  V,  FARMERS  NAT.  BANK,  AppeHant. 

Opinion  of  Court  below.  [259  Pa. 

day  after  the  time  of  the  transaction.  The  boc^s  of  the 
bank  show  the  entry  of  the  withdrawal  of  |701.20  from 
the  account  of  Mary  Gonder,  but  do  not  show  the  credit 
for  the  same  amount  in  the  account  of  Frederick  Gk>n- 
der.  The  bank  defends  against  this  item  on  the  ground 
that  the  transaction  did  not  take  place  in  the  bank^  but 
at  the  home  of  the  depositor,  twelve  miles  distant,  and 
that  therefore  the  depositor  made  Mr.  Barron  his  agent 
and  the  bank  is  not  responsible  for  any  misappropri- 
ation of  the  money  by  Mr.  Barron.  While  the  authori- 
ties are  not  uniform  on  this  question  of  the  business 
transactions  outside  of  the  bank,  we  are  inclined  to  think 
that  the  better  rule  is  to  hold  the  depositor  liable  for  the 
agency  of  the  oflftcer  of  the  bank  for  acts  done  outside  of 
usual  banking  hours  and  away  from  the  place  of  bank- 
ing. Particularly  in  view  of  the  act  of  congress  under 
which  the  defendant  is  chartered.  Section  5190  of  the 
United  States  Revised  Statutes  provides  that  ^'the  usual 
business  of  each  national  banking  association  shall  be 
transacted  at  an  office  of  banking  house  located  in  the 
place  specified  in  its  organization  certificate^' ;  and  if 
Mr.  Gonder  had  given  |701.20  in  cash  to  Mr.  Barron, 
requesting  him  to  deposit  it  to  his  account,  under  the 
circumstances  we  would  hold  the  bank  not  liable.  But 
there  are  two  answers  to  the  bank's  contention  in  this 
case :  First,  no  money  was  paid  at  the  home  of  Mr.  Gon- 
der; there  was  simply  a  transference  of  two  accounts. 
Mrs.  Gonder  gave  Mr.  Barron  a  receipt  for  the  amount 
of  money  shown  by  the  bank's  book  to  be  due  her.  This 
receipt  was  used  as  the  basis  of  a  deposit  to  the  credit 
of  Frederick  Gonder.  The  bank's  books  show  the  with- 
drawal of  the  1701.20  from  the  account  of  Mary  Gon- 
der and  the  receipt  given  by  Mary  Gtonder  is  on  file  with 
the  papers  in  the  bank,  but  Mr.  Barron  failed  to  give 
credit  on  the  account  of  Frederick  Gonder  for  the  same 
money;  therefore,  either  the  bank  has  this  |701.20  or 
that  amount  was  abstracted  by  Mr.  Barron.  If  the  mon- 
ey was  abstracted  by  Mr.  Barron  it  was  not  done  at  the 


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GONDER  V,  FARMERS  NAT.  BANIv,  Appellant.    201 
1917.]  Opinion  of  Court  below. 

home  of  Mr.  Gonder,  but  must  have  been  done  in  the 
oflftce  of  the  bank  and  must  have  been  done  on  op  after 
July  8, 1912.  Having  accepted  the  benefits  of  the  trans- 
action by  Mr.  Barron  as  to  the  Mary  Gonder  account, 
the  bank  cannot  repudiate  what  he  did  as  to  the  account 
of  Frederick  Gonder,  and  therefore  the  bank  is  liable 
for  the  item. 

Second.  As  stated  above,  if  the  money  was  abstracted 
it  was  abstracted  from  the  bank  and  not  at  the  home  of 
Mr.  Gonder. 

Defendant  complains  of  the  court's  rulings  in  exclud- 
ing its  offer  to  put  in  evidence  the  loose-leaf  ledger  sheet 
of  the  bank  showing  the  omission  of  this  item  of  |701.20. 
The  bank  cannot  relieve  itself  from  paying  this  money 
because  its  officers  failed  to  make  a  proper  entry  in  its 
bo(^.  Under  the  undisputed  facts  in  this  case  the  bank 
was  liable  for  this  amount  and  the  introduction  of  the 
bank's  account  showing  the  omission  could  not  affect  the 
result,  and  therefore  the  jury  were  instructed  to  allow 
plaintiff  to  recover  this  item  in  their  verdict. 

The  second  item  of  dispute  is  as  to  the  allied  with- 
drawal of  |1,500  on  the  24th  of  July,  1912.  The  defend- 
ant undertook  to  establish  the  fact  that  Henry  P.  Barron 
was  the  agent  of  the  plaintiffs  and  that  the  withdrawals 
for  which  credit  is  claimed  were  made  by  said  Barron  as 
the  agent  of  the  plaintiffs.  No  attempt  was  made  to 
prove  such  agency  on  part  of  Barron  for  the  testator, 
Frederick  Gonder,  and  this  item  of  |1,500  is  marked 
withdrawn  on  the  books  of  the  bank  during  the  lifetime 
of  Frederick  Gonder,  who  died  on  the  first  of  August, 
1912,  and  there  having  been  no  evidence  whatever  of  any 
withdrawal  of  this  fund  tvom  the  bank  by  proper  au- 
thorization, the  jury  were  instructed  to  allow  the  plain- 
tiffs to  recover  said  sum  in  this  action. 

The  third  disputed  item  is  an  alleged  withdrawal  by 
the  plaintiffs  of  $3,000  on  the  10th  of  January,  1913. 
This  money  was  taken  from  the  bank  by  Mr.  Barron  and 
at  the  same  time  he  deposited  with  the  papers  in  the 


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202    GONDER  v.  PARSERS  NAT.  BANK,  Appellant. 

Opinion  of  Court  below.  [259  Pa. 

bank  a  receipt  for  the  said  sum  of  f3,000  signed  "Fred 
Gonder^s  executors,  per  H.  P.  Barron,  cashier."  The 
bank  claims  that  at  the  time  this  receipt  was  filed  Mr. 
Barron  was  acting  as  an  agent  for  the  plaintiff  and  that 
they  are  not  chargeable  with  any  misappropriation  of 
this  money.  The  question  of  agency  was  submitted  to 
the  jury  and  they  found  against  the  bank.  Upon  a  care- 
ful reading  of  the  testimony  we  are  convinced  that  the 
jury  could  not  have  found  otherwise.  There  is  not  a 
particle  of  evidence  in  the  case  to  justify  the  jury  in 
finding  that  Barron  had  been  employed  as  the  agent  of 
the  plaintiffs.  In  fact,  this  question  should  not  have 
been  submitted  to  the  jury,  but  as  it  was  submitted  and 
the  finding  being  adverse  to  the  defendant,  it  has  no 
grounds  for  complaint. 

The  defendant  complains  of  the  court's  ruling  in  ex- 
cluding the  bank's  ledger  sheet  showing  the  withdrawal 
of  these  two  items  of  |1,500  and  $3,000,  but  the  bank 
cannot  escape  the  payment  of  this  money  by  showing 
that  it  has  charged  the  plaintiffs  with  these  sums  in  the 
absence  of  any  further  authority  for  such  charge.  The 
pass  book  given  to  the  plaintiffs  makes  no  refei*ence  to 
these  two  items  of  withdrawal.  This  book  is  in  the  hand- 
writing of  Mr.  Barron  and  it  was  submitted  periodically 
to  the  oflBicers  of  the  bank  for  balancing  and  no  objection 
was  at  any  time  taken  to  the  account  as  shown  on  the 
plaintiff's  book.  The  fact  that  the  last  four  items  on  this 
book  show  changes  or  alterations  w^as  explained  by  the 
plaintiffs.  The  book  was  handed  to  Mr.  Barron  at  his 
request  while  he  was  acting  as  cashier  of  the  bank  and 
some  time  later,  after  repeated  demands,  he  handed  it 
back  to  the  plaintiffs  with  the  changes  made;  but  the 
changes  or  alterations  apparent  on  the  face  of  the  book 
do  not  in  any  way  affect  the  rights  of  the  parties  as  to 
the  disputed  items.  There  is  no  allegation  or  even  inti- 
mation that  either  the  |1,500  or  the  $3,000  was  entered 
at  any  time  in  plaintiffs'  pass  book.    The  only  changes 


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GONDER  V.  FARMERS  NAT.  BANK,  AppeUaut.    203 
1917.]  Opinion  of  Court  below. 

in  the  book  are  on  balances  due  and  these  seem  to  relate 
to  charges  of  interest. 

Another  complaint  made  by  the  defendant  is  the  rejec- 
tion of  J.  A.  Berkey,  Esq.,  as  a  witness.  Mr.  Berkey, 
when  on  the  stand,  was  asked  as  to  a  conversation  he 
had  with  the  plaintiffs  in  the  presence  of  Henry  F.  Bar- 
ron after  Mr.  Barron  had  been  relieved  as  cashier  of  the 
bank,  and  the  objection  was  made  on  the  ground  that 
the  conversation  was  privileged.  Mr.  Berkey  was  a 
member  of  the  firm  of  Berkey  &  Shaver  and  this  firm 
was  the  counsel  for  the  plaintiffs  as  executors  in  the 
settlement  of  the  Gonder  estate,  and  upon  that  ground 
the  testimony  was  excluded. 

"It  is  not  merely  the  privilege  of  the  attorney,  but  the 
rights  of  the  party,  that  forbid  the  disclosure  of  such 
communications,  and  therefore  the  attorney  is  not  per- 
mitted to  divulge  them,  though  willing  to  do  so'^ :  Miller 
V.  Weeks,  22  Pa.  89,  92. 

"The  party  who  offers  this  evidence  is  not  the  other 
party  to  the  contract,  but  a  stranger  who  had  no  con- 
nection with  it.  To  us  it  is  perfectly  clear  that  any 
words  spoken,  or  any  acts  done,  by  the  client^  in  such 
circumstances,  in  the  presence  of  his  attorney  and  in  the 
course  of  his  employment  are  privileged,  and  may  not  be 
proved  by  the  testimony  of  the  attorney  without  the  con- 
sent of  the  client":  Kaut  &  Eeineman  v.  Eessler  & 
Schlather,  114  Pa.  603,  610. 

"And  I  think  the  true  principle  in  reference  to  privi- 
leged communications  between  attorney  and  client  to  be, 
that  where  the  attorney  is  professionally  employed,  any 
communication  made  to  him  by  his  client,  with  reference 
to  the  object  or  the  subject  of  such  employment,  is  under 
the  seal  of  prof  essi(mal  confidence,  and  is  entitled  to  pro- 
tection as  a  privileged  communication" :  Bank  of  Utica 
V.  Mersereau,  3  Barb.  Chancery  (N.  Y.)  528,  595;  Tyler 
V.  Hall,  106  Mo.  813. 

This  last  case  rules  that  a  third  party  present  at  such 
a  conversation  can  be  called  upon  to  testify  although  the 
attorney  cannot 


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204    GONDER  r.  FARMERS  NAT.  BANK,  Appellant. 

Opinion  of  Court  below.  [259  Pa. 

In  Commonwealth  v.  GriflBin^  110  Mass.  181^  it  was 
held  that  a  third  party  could  be  called  to  testify  as  to  a 
conversation  between  husband  and  wife,  even  where  the 
husband  was  under  indictment  for  manslaughter. 

To  the  same  effect  in  Gannon  v.  People,  21  N.  E.  Repr. 
525. 

*The  fact  that  confidential  communications  by  a  client 
to  an  attorney  were  made  in  the  presence  of  a  third  per- 
son, does  not  qualify  the  attorney  as  a  witness  in  regard 
to  such  communications" :  Blount  v.  Krimpton,  29  N.  E. 
Eepr.  590;  see  Caleb  Whiting  v.  David  Barney,  30  N.  Y. 
330;  Alexander  v.  Queen,  253  Pa.  195. 

Furthermore,  an  objection  to  the  testimony  could  have 
been  sustained  on  the  ground  of  irrelevancy;  and  the 
same  applies  to  the  testimony  of  the  witnesses  A.  P. 
Smith,  H.  L.  Sipe,  Freeman  J.  Hoffman  and  Isaiah  Good. 
An  effort  was  made  to  establish  by  these  witnesses  that 
the  plaintiffs,  after  the  defalcation  of  Barron  had  become 
known,  made  an  endeavor  to  settle  with  Barron  and  to 
take  his  paper  with  satisfactory  security  for  the  amount 
of  their  claim.  It  was  by  this  evidence  that  the  defend- 
ant undertook  to  establish  the  alleged  agency  of  Barron. 
Taking  all  this  testimony  in  connection  with  the  ex- 
cluded offer  of  J.  A.  Berkey,  in  its  strongest  light  in 
favor  of  the  defendant,  it  does  not  tend  to  establish  an 
agency;  although  the  court  submitted  this  question  to 
the  jury,  we  are  satisfied,  upon  a  careful  review  of  the 
testimony,  that  there  was  nothing  in  the  evidence  which 
justified  such  submission  to  the  jury,  and  if  the  jury  had 
found  in  favor  of  the  defendant  upon  this  issne^  the  coart 
necessarily  would  have  had  to  set  aside  the  verdict. 
Even  had  the  plaintiffs  made  an  honest  endeavor  to  se- 
cure this  claim  by  taking  Mr.  Barron's  paper  with  other 
security,  or  had  they  even  gone  so  far  as  to  have  accepted 
the  paper,  that  fact  would  not  have  shown  any  agency. 
The  plaintiffs  were  relatives  of  Mr.  Barron;  they  i>ep- 
haps  were  quite  willing  to  shield  him  as  -far  as  possibley 
and  there  would  have  been  no  inconsistency  in  their 


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GONDER  t'.  FARMERS  NAT.  BANK,  Appellant.  205 
1917.]  Opinion  of  Court  below — Opinion  of  the  Court. 
making  a  settlement  with  Mr.  Barron  of  their  claim  had 
the  bank  owed  the  money.  And  so  with  regard  to  re^ 
marks  that  were  made  as  to  their  being  "satisfied^'  that 
Barron  had  taken  the  money  from  the  bank.  Evidently 
if  these  words  were  used  as  attributed  to  them  by  some 
of  the  witnesses,  the  meaning  was  that  the  plaintiflFs  were 
convinced  or  persuaded  by  the  statements  of  Mr.  Shaver 
and  others  that  Barron  had  misappropriated  the  money. 
There  is  nothing  in  any  of  these  statements,  viewed  in 
the  strongest  light  i)ossible,  favorable  to  the  defendant, 
that  tends  to  relieve  the  bank  from  responsibility. 

The  case  of  Greenhalgh  Co.  v.  Farmers'  National 
Bank,  226  Pa.  184,  contains  many  features  common  to 
the  case  at  bar;  and  upon  careful  consideration  of  all 
the  evidence  in  the  case  we  are  satisfied  that  no  other 
verdict  could  be  rendered  than  the  one  returned  by  the 
jury. 

Verdict  for  plaintiff  for  |6,132.25  and  judgment  there- 
on.   Defendant  appealed. 

Errors  assigned  were  rulings  on  evidence  and  instruc- 
tions to  the  jury. 

Norman  T.  Boose,  for  appellant. 

Francis  J.  Kooser,  with  him  Ernest  O.  Kooser,  for  ap- 
pellees. 

Per  Curiam,  October  19, 1917: 

The  facts  in  this  case  appear  in  the  opinion  of  the 
learned  court  below  dismissing  the  motion  for  a  new 
trial,  and,  for  the  reasons  therein  stated  why  the  plain- 
tiflFs are  entitled  to  recover,  the  judgment  on  the  verdict 
in  their  favor  is  affirmed. 


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206  YOUNG  ^S  ESTATE. 

Syllabus— Opinion  of  the  Court.  [269  Pa. 

Young's  Estate. 

Seal  estate — Minerah — Owner  of  land  otUp — Partifum. 

One  who  has  parted  with  all  his  right,  title  and  interest  in  a 
vein  of  coal  underlying  land  in  which  he  still  has  an  interest  has 
no  standing  to  maintain  a  partition  proceeding  instituted  for  the 
partition  of  the  entire  tract  including  the  coal. 

Argued  Oct.  1,  1917.  Appeal,  No.  70,  Oct.  T.,  1917, 
by  Aaron  O.  Young,  from  decree  of  O.  C.  Greene  Co., 
Dec.  Court,  1914,  No.  4,  refusing  partition,  in  Estate  of 
John  Young,  Deceased.  Before  Brown,  C.  J.,  Mestrb- 
ZAT,  Stewart,  Frazer  and  Walung,  JJ.    Affirmed. 

Petition  for  partition  of  the  real  estate  of  decedent 
Before  Irwin,  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  refused  the  petition.  Aaron  O.  Young  ap- 
pealed. 

Error  assigned  was  the  decree  of  the  court 

Andrew  A,  Purman,  for  appellant. 

W.  J.  Kyle,  with  him  J.  B.  Adams  and  R.  F.  Hopwood, 
for  appellees. 

Per  Curiam,  October  19, 1917: 

As  Aaron  O.  Young  had  parted  with  all  his  right,  title 
and  interest  in  and  to  the  Pittsburgh  River  vein  of  coal 
and  mining  rights,  he  had  no  standing  to  maintain  the 
partition  proceeding  instituted  for  the  partition  of  the 
entire  tract,  including  surface  and  coal.  Of  the  Act  of 
May  6,  1915,  P.  L.  269,  it  need  only  be  said  that  it  was 
passed  after  the  institution  of  that  proceeding. 

Appeal  dismissed  at  appellant's  costs. 


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CROSS  et  al.,  Appellants,  v.  DTE.  207 

1917.]  Syllabus — Statement  of  Facts. 


Cross  et  al.,  Appellants,  v.  Dye. 

Wills  and  devises — Real  estate — Estates  taU-^-Act  of  April  fH, 
1865,  P.  L.  S68 — Construction — Intention. 

A  testatrix  having  given  her  husband  an  interest  for  life  in 
certain  real  estate,  gave  the  remainder  to  ^^my  daughter.  Marietta 
B.  Cross,  and  my  son,  Walter  L.  Cross,  and  the  sxirvivors  of  them 
and  their  heirs  in  fee,  but  should  they  both  die  without  lawful 
issue,  then  the  same  shall  go  to  my  sons,  Jesse  and  Wilbur,  and 
their  heirs.'*  Walter  L.  Cross  died  unmarried  and  without  issue 
prior  to  testatrix,  but  Marietta  R.  Cross  survived  the  testatrix  and 
the  life  tenant  and  aliened  the  property.  In  an  action  by  Jesse 
and  Wilbur  against  the  grantee  of  Marietta  R  Cross,  brought 
after  the  death  of  Marietta,  the  court  held  that  Marietta  had  re- 
ceived an  estate  tail  which  became  a  fee  simple  estate  under  the 
Act  of  April  27, 1855,  P.  L.  368,  and  directed  a  verdict  for  defend- 
ant.   Held,  no  error. 

Argued  Oct.  1,  1917.  Appeal,  No.  159,  Oct.  T.,  1917, 
by  plaintiffs,  from  judgment  of  C.  P.  Greene  Co.,  Dec. 
T.,  1915,  No.  83,  on  verdict  for  defendant,  in  case  of  Jesse 
R.  Cross  and  Wilbur  F.  Cross  v,  A.  J.  Dye.  Before 
Brown,  C.  J.,  Mbstrezat,  Stewart,  Frazer  and  Wal- 
ling, JJ.    Affirmed. 

Ejectment  for  lands  in  Greene  County.  Before  Eat, 
P.J. 

From  the  record  it  appeared  that  the  third  and  fourth 
paragraphs  of  the  will  of  Harriet  E.  Cross  were  as  fol- 
lows: 

"If  my  husband,  A.  G.  Cross,  should  survive  me,  it  is 
my  will  that  he  shall  have  the  house  and  lot  I  now  own 
on  Washington  Street,  in  Waynesburg  Borough,  Pa., 
during  his  life  and  the  rents,  issues  and  profits  thereof, 
free  from  any  debts  he  may  now  owe  or  hereafter  con- 
tract, he  to  pay  taxes  thereon  and  keep  the  same  in  good 
and  sufficient  repair,  and  at  his  death  T  give  and  devise 
the  said  house  and  lot  to  my  daughter,  Marietta  R.  Cross 


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208  CROSS  et  al.,  Appellants,  v.  DYE. 

Statement  of  Facts — Opinion  of  the  Court  [259  Pa. 
and  my  son  Walter  L.  Cross  and  the  survivor  of  them 
and  their  heirs  in  fee,  but  should  they  both  die  without 
lawful  issue  then  the  same  shall  go  to  my  sons,  Jesse  and 
Wilbur  and  their  heirs. 

*^It  is  my  will  that  if  my  daughter,  Marietta  R.  Cross 
should  many  that  the  estate  I  have  above  devised  to  her 
in  the  said  house  and  lot  shall  be  subject  to  her  separate 
use  and  control  and  shall  not  become  liable  in  any  man- 
ner for  the  debts  of  her  husband,  being  unwilling  that 
my  bounty  to  her  shall  be  dissipated  or  aliened  by 
strangers  or  other  debtors  than  her  own." 

Walter  L.  Cross  died  November  4,  1893,  unmarried 
and  without  issue.  The  deceilent  died  November  28, 
1894.  Marietta  R.  Cross  survived  her  brother,  Walter 
L.  Cross,  and  her  father,  A.  G.  Cross,  and  conveyed  away 
the  premises,  which  by^various  mesne  conveyances  be- 
came vested  in  the  defendant.  Upon  the  death  of  Mari- 
etta R.  Cross,  plaintiffs  brought  the  action  contending 
that  under  the  will  of  Harriet  R.  Cross,  there  was  but  a 
life  estate  in  Marietta  R.  Cross,  with  remainder  over  to 
them. 

Verdict  for  defendant  by  direction  of  the  court  and 
judgment  thereon.     Plaintiffs  appealed. 

Errors  assigned  were  in  directing  a  verdict  fc^  defend- 
ant and  in  entering  judgment  thereon. 

J.  L  Hook  and  A.  H.  Sayers,  for  appellants. 

T.  8.  Crago,  of  Crago  d  Montgomery,  for  appellee. 

Per  Curiam,  October  19,  1917: 

This  judgment  is  aifirmed  on  the  following  from  the 
charge  of  the  court  in  directing  a  verdict  for  the  defend- 
ant: **In  the  opinion  of  the  court  the  will  in  question 
created  in  Marietta  R.  Cross,  daughter  of  Harriet  R. 
Cross,  the  testatrix,  an  estate  tail  which  estate,  under 
the  Act  of  Assembly  in  this   State  passed  in  1855, 


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CROSS  et  al.,  Appellants,  v.  DYE.  209 

1917.]  Opinion  of  the  Court, 

became  a  fee  simple  estate  in  Marietta  B.  Cross,  and 
as  we  view  it  by  her  deeds  there  finally  became  vested 
in  A.  J.  Dye^  the  defendant  in  this  case,  a  fee  simple  to 
the  property  in  question/' 
Judgment  affirmed. 


Commonwealtli  ex  rel.  Graham  v.  Cameron, 
Appellant 

PuhKc  officers — Justices  of  the  peace — Jurisdiction — Place  of 
residence — Act  of  February  22,  1802,  3  Smith's  Laws  JfiO. 

1.  Under  the  Act  of  February  22,  1802,  3  Smith's  Laws  490, 
providing  that  no  justice  of  the  peace  shall  act  as  such,  unless  he 
shall  reside  within  the  limits  of  the  district  for  which  he  was 
commissioned,  a  justice  of  the  peace  residing  in  that  part  of  a 
township,  which,  after  the  justice  was  commissioned  for  the  entire 
township,  was  annexed  to  a  borough,  ceases  to  have  any  legal  right 
to  exercise  the  o£Sce  of  justice  of  the  peace. 

Justices  of  the  peace — County  officers-jurisdiction,  G,  P. — Quo 
warranto — District  attorney. 

2.  Although  a  justice  of  the  peace  receives  a  commission  from 
the  governor,  he  is  not  a  State,  but  a  county  officer;  and  his  right 
to  hold  office  may,  therefore,  be  questioned  in  quo  warranto  pro- 
ceedings by  the  district  attorney  of  the  county  in  which  he  claims 
the  right  to  hold  office. 

Argued  Oct.  2,  1917.  Appeal,  No.  60,  Oct.  T.,  1917, 
by  respondent,  from  judgment  of  C.  P.  Beaver  Co.,  Dec. 
T.,  1916,  No.  60,  of  ouster,  in  case  of  Commonwealth  of 
Pennsylvania  ex  rel.  Louis  E.  Oraham,  District  Attor- 
ney, V.  Walter  8.  Cameron.  Before  Brown,  C.  J.,  Mbs- 
TMZAT,  Stiwakt,  Frazbb  and  Walung,  JJ.    Affirmed. 

Quo  warranto  to  test  defendant's  right  to  exercise  the 
office  of  justice  of  the  peace  in  the  Township  of  Harmony. 

The  facts  appear  in  the  following  opiniou  of  Baldwin, 
P,J.: 

Voii,  CC14X— 14, 


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210    COM.  ex  rel.  GRAHAM  v.  CAMERON,  AppeUant. 

Opinion  of  Court  below.  [259  Pa. 

The  suggestion  and  demurrer  in  this  case  raise  two 
questions : 

(1)  Whether  a  justice  of  the  peace  who  ceases  to  re- 
side within  the  district  for  which  he  has  been  commis- 
sioned thereby  loses  his  office. 

(2)  Whether  the  district  attorney  may  file  a  sugges- 
tion for  a  writ  of  quo  warranto  against  a  justice  of  the 
peace. 

A  third  question  is  raised  by  counsel  for  respondent^ 
namely,  whether  or  not  if  the  respondent  is  attempting 
to  transact  official  business  outside  of  the  district  for 
which  he  was  elected  the  remedy  is  by  injunction  and 
not  by  quo  warranto.  Counsel  for  respondent,  in  sup- 
port of  their  contention  that  the  remedy  is  by  injunc- 
tion, cite  the  case  of  Commonwealth  ex  rel.  v.  Smail,  238 
Pa.  106.  In  that  case,  however,  there  was  no  question  as 
to  the  right  of  Smail  to  act  within  the  territory  for  whtch 
he  was  elected.  It  was  not  contended  that  he  had 
changed  his  residence.  In  that  case  the  questions  deci- 
sive of  the  case  at  bar  were  not  before  the  court. 

Taking  up  the  above  mentioned  questions  in  their 
order : 

As  to  the  first  question : 

The  respondent  was  duly  elected  and  commissioned  as 
a  justice  of  the  peace  for  the  Township  of  Harmony.  In 
March,  1916,  by  proceedings  duly  and  legally  had,  a  part 
of  said  Township  of  Harmony  was  duly  annexed  to  the 
Borough  of  Ambridge,  the  residence  and  office  of  said 
respondent  being  in  that  portion  of  Harmony  Township 
so  annexed.  By  virtue  of  said  annexation  proceedings, 
the  respondent  became  a  resident  of  the  Borough  of  Am- 
bridge. The  respondent,  nevertheless,  continues  to  ex- 
ercise his  office  of  justice  of  the  peace  in  and  for  said 
township. 

The  Act  of  February  22,  1802,  3  Smithes  Laws  490, 
provides :  ^'That  from  and  after  the  first  day  of  August, 
next,  no  justice  of  the  peace  shall  act  as  such  unless  he 
shall  r^ide  within  the  limits  of  the  district  for  w^^ic]) 


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COM.  ex  rel.  GRAHAM  v.  CAMERON,  AppeUant   211 
1917.]  Opinion  of  Court  bdow. 

he  wag  commissioned.'^  The  Act  of  June  21, 1839,  P.  L. 
376,  380,  Section  13,  provides  as  follows:  ''The  several 
aldermen  and  justices  of  the  peace  elected  and  commis* 
sioned  under  this  act  shall  be  subject  to  removal  in  the 
same  manner  and  for  the  same  causes  prescribed  by  the 
existing  laws  of  this  Conunonwealth,  and  during  their 
continuance  in  office  shall  respectively  keep  their  offices 
in  the  ward,  borough  or  township  for  which  they  shall 
have  been  elected." 

It  will  be  noted  that  the  Act  of  1802  provides  that  ''no 
justice  of  the  peace  shall  act  as  such  unless  he  shall  re- 
side within  the  limits  of  the  district  for  which  he  was 
conunissioned."  The  respondent's  commission  made 
him  a  justice  of  the  peace  for  the  Township  of  Harmony. 
K  the  whole  of  the  district  had  been  annexed  to  the  Bor- 
ough of  Ambridge,  it  is  clear  that  his  commission  could 
not  continue  to  exist :  Commonwealth  ex  rel.  v.  Hudson, 
263  Pa.  1. 

But  it  is  only  the  part  of  Harmony  Township  in  which 
the  respondent  resides  and  keeps  his  office  that  has  been 
annexed  to  the  Borough  of  Ambridge.  If  there  had  been 
no  annexation  proceedings  and  the  respondent  had 
moved  into  the  Borough  of  Ambridge,  there  is  no  ques- 
tion but  that  he  could  not  exercise  his  commission.  That 
would  be  true  if  the  respondent  thus  changed  his  resi- 
dence by  his  voluntary  act.  The  result  is  precisely  the 
same  where  the  residence  has  been  changed  involunta- 
rily. The  annexation  proceedings  legally  removed  him 
from  the  Township  of  Harmony.  Hence  the  respondent 
is  without  legal  right  to  exercise  the  office  of  justice  of 
the  peace. 

As  to  the  second  question : 

Is  the  district  attorney  the  proper  party  to  file  the 
suggestion,  or  must  it  be  filed  by  the  attorney  general?  v 

The  Act  of  1836,  P.  L.  621,  Section  2,  provides: 

"Writs  of  quo  warranto,  in  the  form  and  manner  here- 
inafter provided,  may  also  be  issued  by  the  several 
Courts  of  Common  Pleas,  concurrently  with  the  Supreme 


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212    COM.  ex  rel.  GRAHAM  f.  CAMERON,  Appellant. 

Opinion  of  Court  below.  [259  Pa. 

Conrt,  in  the  following  cases^  to  wit :  1.  In  case  any  per- 
son shall  usurp,  intrude  into  or  unlawfully  hold  or  exer- 
cise any  county  or  township  office  within  the  respective 

county and  in  any  such  case  the  writ  aforesaid 

may  be  issued  upon  the  suggestion  of  the  attorney  gen- 
eral, or  his  deputy,  in  the  respective  county,  or  of  any 
person  or  persons  desiring  to  prosecute  the  same." 

If  the  office  of  justice  of  the  peace  is  a  county  office 
within  the  meaning  of  the  Act  of  1836,  then  it  would 
seem  that  the  district  attorney,  who  occupies  the  posi- 
tion formerly  held  by  the  deputy  attorney  general  (Act 
of  May  3,  1850,  P.  L.  654),  has  the  authority  to  file  the 
suggestion.  There  are  some  county  court  cases  to  the 
contrary.  In.  1870  Judge  Stowb  of  the  Allegheny  Coun- 
ty courts  held  in  Commonwealth  v.  Reed,  18  P.  L.  J.  131, 
that  the  district  attorney  had  no  right  to  file  a  sugges- 
tion for  a  writ  of  quo  warranto  against  an  alderman. 
The  ground  of  that  decision  was  that  an  alderman  held 
a  commission  from  the  governor.  In  Commonwealth  ex 
rel.  Stewart  v.  Beilly,  14  Pa.  D.  R.  531,  the  Reed  case 
was  followed,  the  court  holding  that  the  district  attor- 
ney could  not  file  a  suggestion  for  a  writ  of  quo  warranto 
against  a  public  officer  commissioned  by  the  governor. 

The  Act  of  1836  authorizes  the  district  attorney  to  file 
a  suggestion  for  such  writ  against  any  person  unlaw- 
fully holding  or  exercising  "any  county  or  township 
office  within  the  respective  county."  If  the  office  of  jus- 
tice of  the  peace  is  a  county  office,  then  the  district  at- 
torney has  authority  to  file  the  suggestion.  Common- 
wealth V.  Callen,  101  Pa.  375,  is  authority  for  the  propo- 
sition that  the  office  of  justice  of  the  peace  is  a  county 
office,  within  the  meaning  of  the  Act  of  1836.  It  is  cer- 
tainly not  a  State  office ;  and  the  fact  that  the  commis- 
sion is  from  the  governor  of  the  State  does  not  make  it 
such.  In  Commonwealth  v.  Callen,  supra,  the  Supreme 
Court  in  a  per  curiam  affirmed  the  lower  court  upon  its 
opinion,  which  held:  "An  alderman  or  justice  of  the 
peace  is  not  properly  a  ward,  borough  or  township  of- 


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COM.  ex  rel.  GRAHAM  v.  CAMERON,  Appellant.  213 
1917.]  Opiuiou  of  Court  below — Assignment  of  Error, 
fleer,  nor  is  the  oflSce  a  judicial  office,  strictly  speaking, 
although  the  constitutional  provisions  on  the  subject 
are  found  in  the  article  on  the  judiciary.  We  must, 
however,  consider  it  as  belonging  to  the  class  of  ward, 
borough  or  township  offices,  because  it  is  placed  in  that 
class  by  the  constitution.  And  it  is  the  only  office  of 
that  class  where,  under  existing  laws,  the  governor  has 
power  to  appoint,  in  case  of  vacancy." 

There  are  a  number  of  other  cases  holding  that  a  jus- 
tice of  the  peace  is  a  county  office:  Commonwealth  ex 
rel.  V.  Brunner,  6  Pa.  0.  C.  323;  Stapleton  v.  Griest,  26 
Pa.  C.  C.  134;  Commonwealth  ex  rel.  v.  Lentz,  13  Pa. 
D.  R.  388. 

If  the  justice  of  the  peace  is  not  either  a  county  or 
township  officer  within  the  purview  of  the  Act  of  1836 
he  must  be  a  State  officer,  and  the  Supreme  Court  only 
has  original  jurisdiction  under  the  Constitution  to  try 
the  title  to  same. 

The  Courts  of  Common  Pleas  of  the  State  have  for 
years  exercised  jurisdiction  in  disputes  of  this  kind; 
and  no  one  seems  to  have  questioned  or  disputed  the 
propriety  thereof;  everyone  has  assumed  that  a  justice 
of  the  peace  is  a  county  as  distinguished  from  the  State 
officer,  and  that  a  disputed  title  to  same  should,  there- 
fore, be  tried  in  the  Court  of  Common  Pleas. 

There  being  no  appellate  court  decision  deciding  this 
question,  we  have  reached  the  conclusion  that  the  dis- 
trict attorney  is  the  proper  person  to  file  a  suggestion  for 
a  writ  of  quo  warranto  against  a  justice  of  the  peace. 

The  defendant  demurred  to  the  suggestion  for  the  writ. 
The  court  overruled  the  demurrer  and  entered  judgment 
of  ouster  against  the  respondent.    Bespondent  appealed. 

Error  assigned  was  the  judgment  of  the  court. 

Richard  8.  Holt,  with  him  Clyde  Holt  and  Harry  B. 
Richardson,  of  Holt,  Holt  d  Richardson.,  for  appellant. 


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214    COM.  ex  rel.  GRAHAM  v.  CAMERON,  Appellant. 

Opinion  of  the  Court.  [259  Pa. 

William  A.  McConnel,  for  appellee. 

Per  Curiam,  October  19, 1917 : 

The  judgment  in  this  case  is  affirmed  on  the  opinion 
of  the  learned  court  below  overruling  defendant's  de- 
muri^er  and  directing  judgment  of  ouster  to  be  entered 
against  him. 


Naugle  et  al.  v.  Irvin,  Appellant. 

TFtZb — Construction — Devises — Oifi  in  feo-^Defensible  gift — In* 
tentum. 

Testator  devised  his  residuaiy  estate,  including  certain  realty*  to 
"my  two  children  (naming  them)  their  heirs  and  assigns,  share  and 

share  alike,  or  each  to  have  one-half In  case  of  the  death  of 

either  child  during  minority,  without  issue,  then  the  share  of  such 
child  dying  without  issue  shall  go  to  and  he  vested  in  such  surviv- 
ing child."  The  will  then  provided  for  a  gift  over  to  certain  named 
devisees  in  case  of  the  death  of  both  children  without  issue.  Held, 
that  each  of  the  testator's  two  children  took  a  fee  simple  estate  in 
one-half  of  said  real  estate,  defeasible  only  by  death  without  issue 
during  minority  and  indefeasible  on  arrival  at  the  age  of  twenty- 
one. 

Submitted  Oct.  2,  1917.  Appeal,  No.  168,  Oct  T., 
1917,  by  defendant,  from  judgment  of  C.  P.  Beaver 
County,  Dec.  T.,  1916,  No.  243,  for  want  of  a  sufficient 
affidavit  of  defense  in  case  of  J.  P.  Naugle  and  Essie  N. 
Stone  V.  B.  O.  Irvin.  Before  Brovstn,  C.  J.,  Mbstrrzat, 
Stbv^art,  Frazer  and  Walung,  J  J.    Affirmed. 

Assumpsit  to  recover  purchase-price  of  real  estate. 
Before  Baldwin,  P.  J. 

Prom  the  record  it  appeared  that  plaintiffs  claimed 
|1,950,  being  the  balance  due  them  on  a  written  contract 
for  the  sale  of  real  estate  under  which  defendants  had 
agreed  to  purchase  from  plaintiffs  certain  land  located 
in  the  Borough  of  Beaver  Falls. 


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NAUGLE  et  al.  v.  IRVIN,  Appellant.  215 

1917.]  Statement  of  Facts. 

Plaintiffs  had  tendered  a  general  warranty  deed  con- 
veying the  property  in  fee  and  defendant  had  refused  to 
pay  the  balance  of  the  purchase-money. 

Defendant's  affidavit  of  defense  alleged  that  the  title 
of  plaintiffs  to  said  land  was  under  the  will  of  David  S. 
Naugle,  deceased,  and  that  under  said  will  the  plaintiffs 
did  not  have  a  fee  simple  title. 

Plaintiffs  claimed  title  under  the  eighth  paragraph  of 
said  will  which  was  as  follows : 

^^Eighth.  All  the  rest,  residue  and  remainder  of  all 
my  personal,  real  and  mixed  property  or  estate  (includ- 
ing the  remainder  in  the  Second  street  property)  I  will, 
give,  devise  and  bequeath  unto  my  two  children,  Essie 
B.  Naugle  and  John  Franklin  Naugle,  their  heirs  and 
assigns,  share  and  share  alike,  or  each  to  have  one-half. 
This  devise  and  bequest  to  include  all  property  of  what- 
ever kind  and  wherever  situated. 

'^In  case  of  the  death  of  either  child  during  minority, 
without  issue,  then  the  share  of  such  child  dying  with- 
out issue,  shall  go  to  and  be  vested  in  such  surviving 
child. 

"In  case  of  the  death  of  both  of  said  children,  with- 
out issue,  then  the  property  and  estate  willed,  devised 
and  bequeathed  to  them  I  will,  devise,  give  and  bequeath 
unto  my  wife,  Mary  P.  Naugle,  the  same  during  the  life 
or  so  long  as  she  remains  my  widow.  On  her  death  or 
remarriage,  I  will,  devise  and  bequeath  one-fifth  of  the 
same  to  the  surviving  children  or  their  issue  of  my  de- 
ceased sister,  Sarah  E.  Brittain,  the  remaining  four- 
fifths  I  will,  devise  and  bequeath  to  my  mother,  Emiline 
Naugle,  and  my  brother,  John  F.  Naugle,  if  living,  or  to 
the  survivor  thereof,  or  in  event  of  death  of  both  to  the 
issue  of  my  said  brother,  if  any,  or  if  both  have  deceased 
without  issue,  then  the  said  four-fifths  to  go  to  and  vest 
in  the  surviving  children,  or  their  issue,  of  my  deceased 
sister,  Sarah  E.  Brittain.^' 

Plaintiffs  had  both  reached  the  age  of  twenty-one 
years. 


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216  NAUGLE  et  al.  v.  IRVIN,  Appellant. 

Assignment  of  Errors — Opinion  of  the  Court.        [259  Pa. 
The  lower  court  entered  judgment  for  the  plaintiflFa 
for  want  of  a  sufficient  affidavit  of  defimse.    Def^idant 
appealed. 

•    Error  assigned  was  in  entering  judgment  for  the  plain- 
tiffs for  want  of  a  sufficient  affidavit  of  defense. 

Roger  Cope,  for  api>ellant. 

Joseph  Knox  Stone,  for  appellees. 

Per  Cubiam,  October  19, 1917 : 

Each  of  the  appellees  is  of  age,  and  the  judgment  from 
which  the  appellant  appealed  is  affirmed  on  the  follow- 
ing from  the  opinion  of  the  court  directing  it  to  be 
entered  for  want  of  a  sufficient  affidavit  of  defense: 
"Our  study  of  this  will  leads  us  to  the  conclusion  that 
under  the  same  each  of  the  testator's  two  children  took 
a  fee  simple  estate  in  the  one-half  of  said  real  estate^  de- 
feasible only  by  death  without  issue  during  minority^ 
and  indefeasible  on  arrival  at  the  age  of  twenty-one,^ 

Judgment  affirmed. 


McKeown's  Estate. 

With — Consiructidn — Rule  against  perpetuities — AecumuloHons 
---Act  of  April  18,  186$,  P.  L.  SOS—Intention. 

Testatrix  devised  three-fourths  of  her  residuary  estate  in  trust, 
directing  that  the  income  be  given  to  her  three  sons  for  life,  and 
providing  that  upon  the  death  of  any  of  such  sons  the  one-third 
part  thenetofore  paid  to  such  deceased  son  should  be  equally  divided 
among  his  children  and  that  the  principal  of  silch  third  should  be 
divided  among  such  children  upon  their  arriving  at  the  age  of 
twenty-five  years.  The  will  then  provided,  '*upon  any  of  my  sons 
dying  without  children  or  the  issue  thereof  living,  then  I  direct  nay 
said  trustee  to  pay  such  interest  as  they  would  have  received  here- 
under, to  the  children  of  my  other  sons  per  capita,  upon  their  ar- 
riving at  the  age  of  twenty-five  years."     The  eldest  son  of  the 


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McKEOWN^S  ESTATE.  217 

191T.]  Syllabus-^Statement  of  Facts, 

testatrix  died  after  the  testatrix  without  issue,  and  a  daughter  of 
the  testatrix  claimed  diat  the  gift  over  to  l^e  children  of  surviving 
sons  of  the  testatrix  was  void  as  an  accumulation  and  was  violative 
of  the  rule  against  perpetuities.  Held,  (1)  the  testatrix  intended 
that  the  one-third  of  the  trust  estate,  the  income  of  which  was  paid 
to  the  deceased  son  of  the  testatrix  during  his  life,  should  on  the 
death  of  such  son  vest  in  the  children  of  her  surviving  sons  as  a 
class  immediately  upon  the  dealih  of  such  deceased  son,  and  (2) 
that  the  will  did  not  violate  the  rule  against  perpetuities  or  the 
statute  against  accumulations. 

Argued  Oct.  3,  1917.  Appeal,  No.  97,  Oct.  T.,  1917, 
by  Anna  L.  Braden,  from  decree  of  O.  C.  Washington 
Co.,  May  T.,  1916,  No.  46,  dismissing  exceptions  to  ad 
judication  in  Estate  of  Sara  McKeown,  deceased.  Be- 
fore Brown,  C.  J.,  Mbstrbzat,  Stewart,  Frazer  and 
Walling,  JJ.    AflSrmed. 

Exceptions  to  adjudication.    Before  McIlvainb,  P.  J. 

From  the  record  it  appeared  that  testatrix  devised  the 
residue  of  her  estate,  real,  personal  and  mixed,  in  trust, 
one-fourth  to  the  use  of  her  daughter,  and  provided  as 
follows  as  to  the  remaining  three-fourths : 

"And  I  do  direct  my  said  trustee  to  pay  annually  one- 
third  of  the  net  income  from  the  said  remaining  three- 
fourths  to  each  of  my  sons,  William  King  McKeown, 
James  B.  McKeown  and  Scott  A.  McKeown,  during 
their  natural  lives,  but  upon  the  death  of  any  one  of 
them,  he  shall  pay  the  third  part  theretofore  paid  to 
such  deceased,  son,  to  his  widow  and  children,  in  the  pro- 
portion of  one-third  thereof  to  the  widow  and  two-thirds 
thereof  to  the  children  until  they  arrive  at  the  age  of 
twenty-five  years,  the  payment  to  such  widow,  however, 
to  cease  upon  her  subsequent  marriage  or  death,  and  in 
no  event  whatever  is  any  income  to  be  paid  to  the  widow 
of  my  son,  Arthur  J.  McKeown,  it  being  my  will  and  I  do 
so  direct  that  she  receive  nothing  under  this  will.  Upon 
the  children  of  any  deceased  son  arriving  at  the  age  of 
twenty-five  years,  I  direct  my  said  trustee  to  pay  to  such 
children  in  equal  shares,  the  one- third  of  the  remaining 


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218  McKEOW^'S  ESTATE. 

SUtement  of  Facts.  [269  Pa. 

three-fourths  of  such  trust  estate,  excepting,  however, 
that  if  the  widow  of  my  said  son  be  then  still  living  and 
unmarried,  one-third  of  said  one-third  shall  be  withheld 
by  my  said  trustee  and  the  income  therefrom  be  paid 
annually  to  such  widow  (except  the  widow  of  my  son 
Arthur  J.  McEeown,  who  shall  receive  nothing  here- 
under), until  her  death  or  marriage,  when  the  principal 
so  withheld  shall  be  paid  to  such  children  or  the  issue 
thereof.  Upon  any  of  my  sons  dying  without  children  or 
the  issue  thereof  living,  then  I  direct  my  said  trustee  to 
pay  such  interest  as  they  would  have  received  hereunder, 
to  the  children  of  my  other  sons  per  capita,  upon  their 
arriving  at  the  age  of  twenty-five  years.'^ 

Testatrix  died  on  July  5,  1910.  William  King  Mc- 
Keown  died  May  7,  1914,  without  children  or  the  issue 
thereof,  leaving  surviving  him  Mary  McKeown,  his  wid- 
ow. Testatrix^s  daughter  thereafter  petitioned  the  Or- 
phans' Court  for  a  citation  to  compel  the  trustee  under 
the  will  to  file  an  accounting  and  for  a  distribution,  con- 
tending that  the  gift  over  to  the  children  of  the  surviv- 
ing sons  of  the  testatrix  was  in  violation  of  the  rule 
against  perpetuities  and  the  statute  against  accumula- 
tions. 

The  auditing  judge  filed  the  following  conclusions  of 
law: 

"1st.  That  the  testator  intended  that  the  one-third  of 
the  trust  estate,  the  income  of  which  was  paid  to  Wil- 
liam King  McKeown  during  his  life,  should  vest  in  the 
children  of  her  surviving  sons,  James  B.  McKeowii,  and 
Scott  A.  McKeown,  as  a  class,  immediately  upon  the 
death  of  the  said  William  King  McKeown,  and  that  two- 
thirds  of  the  income  previously  paid  to  him  should  be 
paid  to  them  until  they  were  twenty-five  years  of  age, 
and  one-third  thereof  to  his  widow,  the  payment  to  such 
widow,  however,  to  cease  at  her  subsequent  marriage  or 
death ;  and  upon  the  said  children  of  the  said  James  B. 
McKeown  and  Scott  A.  McKeown  arriving  at  the  age  of 
twenty-five  years,  the  principal  from  which  this  income 


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McKEOWN*S  ESTATE.  219 

1917.]  Statement  of  Facts — Opinion  of  the  Court 

accumulated  to  be  paid  to  such  children  in  equal  shares^ 
excepting^  however,  that  if  the  widow  of  said  William 
McKeown  be  then  still  living  and  unmarried,  one-third 
of  said  one-third  to  be  held  by  the  trustee  and  the  income 
therefrom  paid  annually  to  her  until  her  death  or  mar- 
riage, the  principal  so  withheld  to  be  paid  to  such  chil- 
dren or  issue,  or  the  issue  thereof. 

'^2nd.  That  neither  the  rule  against  perpetuities  nor 
the  Statute  of  1853,  against  accumulation  was  violated 
by  the  testatrix  when  she  disposed  of  the  rest,  residue 
and  remainder  of  her  estate,  real,  personal  and  mixed, 
as  set  out  in  full  in  the  tenth  paragraph  of  her  will 
quoted  in  the  facts  alleged  and  admitted." 

The  lower  court  dismissed  the  petition.  Petitioner 
appealed. 

Error  asaignedj  among  others,  was  the  decree  of  the 
court  dismissing  the  petition. 

John  0,  Bane,  with  him  James  P.  Braden,  A,  O.  Bra- 
den  and  Charles  W,  Campbell,  for  appellant. 

Gorman  E.  Clark,  with  him  Isaac  M.  Baum  and  Win- 
field  Mcllvaine,  for  appellee. 

Pee  Cuwam,  October  19, 1917 : 

This  appeal  is  dismissed  and  the  decree  of  the  court 
below  affirmed  on  the  legal  conclusions  reached  by. its 
learned  president  judge  in  his  opinion  dismissing  the 
petition  of  the  appellant  for  a  citation. 

Appeal  dismissed  at  appellant's  costs. 


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220    HA]MILT0N  v.  TEOPLE'S  NAT.  BANK,  Appollant. 
Syllabus—Statement  of  Facts.  [259  Pa. 

Hamilton  v.  People's  National  Bank,  Appellant 

Trusts  and  trustees — Guardian  and  ward — Embezzlement — Sale 
of  bonds  registered  in  ward^s  name — Failure  of  purchaser  to  make 
inquiry — Liability  of  purchaser  to  ward — Equity — Decree — Return 
of  bonds — Accounting, 

Where  a  gruardian  sold  to  a  bank  certain  corporate  bonds  regis- 
tered in  the  name  of  his  ward,  such  bonds  providing  that  after 
registration  no  transfer  thereof  would  be  valid  unless  made  on  tho 
books  of  the  company,  it  was  the  duty  of  the  ofScer  of  the  bank 
with  whom  the  guardian  dealt  to  make  inquiry  as  to  the  authority 
of  the  guardian  to  make  tlie  sale,  although  such  officer  did  not 
know  that  he  was  dealing  with  a  guardian,  and  where  no  such  in- 
quiry was  made  the  bank  was  not  in  the  position  of  a  purchaser 
without  notice,  and  a  decree  in  equity  to  compel  a  surraader  of 
such  bonds  to  the  ward  and  for  an  accounting,  was  proper. 

Argued  Oct.  3,  1917.  Appeal,  No.  123,  Oct.  T.,  1917, 
by  defendant,  from  decree  of  C.  P.  Washington  Co.,  No. 
2437,  in  Equity,  directing  surrender  of  bonds  in  case  of 
Harry  D.  Hamilton,  Guardian  of  the  Estate  of  Clark  N. 
Hathaway,  a  minor,  v.  Peoples  National  Bank  of  Wash- 
ington. Before  Beown,  C.  J.,  Mbstebzat,  Stbwabt, 
Prazbe  and  Walung,  J  J.    Affirmed. 

Bill  in  equity  to  compel  surrender  of  bonds  and  for  an 
accounting.    Before  Ibwin,  J. 

From  the  record  it  appeared  that  Harry  Russell 
Myers,  Esq.,  a  member  of  the  Washington  County  bar, 
was  appointed  guardian  of  Clark  W.  Hathaway  on  Feb- 
ruary 26, 1906.  Thereafter  he  purchased  with  his  ward's 
funds  three  coupon  bonds,  containing  a  provision  that 
title  should  pass  by  delivery  unless  registered  on  the 
books  of  the  company,  but  that  after  registration  no 
transfer  except  on  the  books  of  the  company  should  be 
valid  unless  the  last  registration  shall  have  been  made  to 
bearer.    The  bonds  were  duly  registered  in  the  name  of 


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'    HAMILTON  f.  PEOPLE'S  NAT.  BANK,  Appellant.    221 
1917.]  Statement  of  Facts, 

the  ward,  and  such  registration  was  evidenced  by  en- 
dorsement on  the  back  of  each  bond. 

On  August  20,  1913,  Myers  obtained  a  loan  from  the 
defendant  bank  for  his  personal  use  and  secured  the 
same  by  the  deposit  of  the  bonds.  At  the  time  the  loan 
was  made  and  the  bonds  pledged  as  collateral  security 
neither  the  bank  nor  its  cashier  with  whom  the  guardian 
dealt,  knew  that  Myers  was  guardian  of  Clark  N.  Hatha- 
way, nor  was  any  inquiry  made  of  Myers  as  to  how  he 
came  in  possession  of  the  bonds  or  by  what  authority  he 
was  pledging  them  as  collateral  security  for  his  own  in- 
debtedness. A  few  days  prior  to  August  14, 1915,  Myers 
lifted  the  three  bonds  in  question  and  substituted  other 
securities. 

On  August  14, 1915,  the  said  H.  R.  Myers  was  desirous 
of  purchasing  a  certain  mortgage  on  some  coal  property 
held  by  James  A.  Mounts,  who  was  a  depositor  in  the 
defendant  bank,  and  he  also  desired  to  pay  a  note  of 
Isaac  W.  Semans  of  f3,500,  which  the  defendant  bank 
held,  and  also  his  own  note  of  |2,500.  To  accomplish 
this,  on  the  forenoon  of  Saturday,  August  14,  1915,  he 
obtained  a  loan  from  the  defendant  bank  of  f8,900  and 
deposited  as  collateral  security  therefor  ten  bonds  of  the 
Pittsburgh-Westmoreland  Coal  Company.  At  the  same 
time  be  sold  to  the  defendant  bank  the  three  bonds  of  the 
Citizens'  Water  Company  of  |1,000  each,  which  he  had 
pledged  to  the  said  bank  as  collateral  for  the  said  loan 
of  f  2,500,  dated  January  1,  1915.  This  |3,000  added  to 
the  ^,900  loan  made  f  11,900.  The  said  H.  R.  Myers 
then  gave  to  the  defendant  bank  his  personal  check  on 
another  bank  for  |251.50,  bringing  the  total  amount,  in- 
cluding the  loan  of  |8,900,  the  |3,000  for  the  bonds,  and 
his  personal  check,  to  f  12,151.50. 

H.  R.  Myers  had  no  checking  account  in  the  defendant 
bank  and  was  not  given  credit  on  the  books  of  the  bank 
for  the  said  sum  of  |12,151.50,  but  that  amount  was  ap- 
plied as  follows :  first,  to  the  payment  of  his  own  note 
of  12,500;  second,  to  the  payment  of  the  Isaac  W.  Se- 


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222    HAMILTON  v.  PEOPLE'S  NAT.  BANK,  AppelUnt. 

Statement  of  Facts.  [259  Pa. 

mans  note  of  |3,500,  then  to  the  payment  of  the  accrued 
interest  on  those  two  notes,  amounting  to  f  129.50,  mak- 
ing a  total  of  16,129.50,  leaving  a  balance  of  |6,022. 

Subsequently  on  the  afternoon  of  August  14th  or  the 
morning  of  August  16th,  Myers  instructed  the  cashier 
of  the  bank  to  place  the  |6,022  to  the  credit  of  James  A. 
Mounts,  and  that  was  accordingly  done. 

During  these  negotiations  the  cashier  of  the  bank 
knew  that  the  proceeds  of  the  bonds  which  Myers  sold 
to  the  defendant  bank  were  to  go  into  a  common  fund 
with  the  proceeds  of  his  loan  of  f8,900,  and  that  the  bal- 
ance, after  the  payment  of  the  Semans  and  Myers  notes 
was  to  be  applied  to  the  purchase  of  a  mortgage  from 
Mounts.  No  inquiry  was  made  by  the  cashier  as  to  what 
authority  Myers  had  for  selling  the  bonds,  nor  was  any 
inquiry  made  of  him  as  to  whom  the  mortgage  was  to 
be  assigned  which  Myers  was  purchasing  from  Mounts. 

The  lower  court  filed  the  following  conclusions  of  law : 

2.  These  bonds  being  registered,  and  the  bonds  pro- 
viding specifically  that  after  registration  no  transfer 
thereof  would  be  valid  except  on  the  books  of  the  com- 
pany, it  was  the  duty  of  the  cashier  of  the  defendant 
bank  to  make  inquiry  as  to  the  authority  of  the  said  H. 
B.  Myers  to  make  sale  of  said  bonds. 

3.  The  defendant  bank  is  affected  not  only  with  notice 
of  all  such  relevant  facts  as  its  cashier  had  knowledge  of 
at  the  time  of  the  purchase  of  these  bonds,  but  of  all 
relevant  facts  of  which  he  would  have  obtained  knowl- 
edge had  he  made  proper  inquiries  as  to  the  authority 
which  Myers  had  to  make  sale  of  the  bonds. 

4.  The  said  defendant  bank  is  not  an  innocent  pur- 
chaser, without  notice,  of  said  bonds,  and  is  not  en- 
titled to  retain  possession  of  the  same. 

5.  The  plaintiff  is  entitled  to  a  decree  requiring  the 
said  defendant  bank  to  turn  over  said  two  bonds  Nos.  504 
and  506,  with  their  accompanying  interest  coupons,  to 
the  said  plaintiff,  and  also  to  an  accounting  to  the  said 
plaintiff  of  all  moneys  whicji  the  sa)d  defendant  banjc 


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HAMILTON  r.  PEOPLE'S  NAT.  BANK,  Appellant.    223 
1917.]         Assignment  of  Error — Opinion  of  the  Court 
has  collected  on  the  interest  coupons  which  were  at- 
tached to  said  bond. 

6.  The  defendant  should  pay  the  costs  of  this  proceed- 
ing. 

The  lower  court  entered  a  decree  in  accordance  with 
its  conclusions  of  law.    Defendant  appealed. 

Error  ds^gned  was  in  dismissing  exceptions  to  find- 
ings of  fact  and  conclusions  of  law,  and  the  decree  of  the 
court. 

Rufus  8.  Marriner^  of  WUei/  d  Marriner,  with  him 
James  P.  Eagleaon,  for  appellant. 

H,  B.  Hughes,  with  him  Harry  D.  Hamilton  and  B.  O. 
Hughes,  of  Hughes  d  Hughes,  for  appellee. 

Pbe  Curiam,  October  19, 1917 : 

This  appeal  is  dismissed  and  the  decree  affirmed,  at 
appellant's  costs,  on  the  second,  third,  fourth,  fifth  and 
sixth  legal  conclusions  of  the  learned  chancellor  below. 


Commonwealth  v.  Dennery,  Appellant. 

Criminal  law — Murder — First  degree  —  Rohhery  —  Motive — III 
wiU — Identification  of  defendant — Voice — Evidence — Res  gestce — 
Charge — Sufficiency — Avoiding  arrest — Rebutting  inference — Con- 
viction of  accomplices -^  Admissibility  —  Jurors  of  same  name — 
Error  in  summoning — Waiver — Act  of  Ma/rch  81, 1S60,  Sec.  58,  P. 

1.  In  the  trial  of  an  indictment  for  murder  it  appeared  that  the 
defendant  and  two  confederates,  all  armed  with  revolvers  and  with 
their  faces  partly  concealed  with  handkerchiefs,  went  to  a  shanty 
where  deceased  was  visiting.  The  defendant  entered,  placed  his 
revolver  against  deceased's  head  and  shot  and  killed  him  instantly. 
Defendant  and  his  confederates  compelled  the  other  occupants  of 
the  shanty  to  hold  up  their  hands  and  took  from  the  only  one 
pofuessing  any  money  aU  that  he  had.    Defendant  was  positively 


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224      COMMONWEALTH  v.  DENNEEY,  Appellant. 

Syllabus.  [369  Pa. 

identified  by  one  of  the  occupants  of  the  shanty  by  his  size,  unusu- 
ally light  hair,  and  by  the  features  of  the  upper  part  of  his  face 
which  was  exposed,  and  was  identified  by  another  by  his  voice,  al- 
though less  positively.  There  was  evidence  that  at  about  one 
o'clock  on  the  day  of  the  shooting  defendant  and  his  two  con- 
federates were  together  at  a  camp  in  the  vicinity  and  were  over* 
heard  talking  about  the  money  at  the  shanty  and  planning  to  get  it, 
that  later  in  the  afternoon  they  were  again  overheard  talking  on 
the  same  subject,  and  that  they  left  the  camp  together  half  an  hour 
before  the  commission  of  the  crime.  Shortly  after  the  shooting  de- 
fendant appeared  in  the  neighborhood  acting  in  a  nervous,  excited 
and  hurried  manner  and  stated  to  two  acquaintances,  'Ve  had 
some  shooting  up  there  and  the  neighbors  are  telephoning  the 
police.''  There  was  evidence  that  three  or  four  days  before  the 
murder  deceased  had  said  in  the  defendant's  presence  that  defend- 
ant had  taken  money  from  him  and  had  attempted  to  commit  an 
unnatural  offense  upon  him.  Defendant  fled  and  was  apprehended 
seven  months  later  in  another  state  where  he  was  working  under 
an  assumed  name.  Held,  a  verdict  of  guilty  of  murder  of  the  first 
degree  was  justified  by  the  evidence. 

2.  In  a  homicide  case  the  statement  by  one  of  the  witnesses  to 
the  shooting,  just  as  the  robbers  were  leaving  the  shanty,  that  the 
defendant  was  the  one  who  had  done  it,  was  properly  admitted  as 
part  of  the  res  gestae. 

3.  In  such  case  the  fact  that  deceased  had  accused  defendant  of 
criminal  offenses  was  admissible  as  tending  to  show  ill  feeling  be- 
tween defendant  and  deceased,  but  not  for  the  purpose  of  showing 
defendant's  guilt  of  an  independent  crime.  In  a  homicide  case  it 
is  proper  for  the  Commonwealth  to  prove  any  facts  naturally  tend- 
ing to  show  defendant's  hostility  toward  deceased. 

4.  In  such  case,  conceding  that  the  defendant  returned  to 
the  town  where  the  crime  was  committed  for  a  short  time  on  the 
night  of  the  homicide,  and  later  gave  his  correct  name  in  an  ad- 
joining county,  the  court  could  not  charge  as  a  matter  of  law  that 
such  facts  rebutted  any  inference  that  the  defendant  fled  for  the 
purpose  of  avoiding  arrest. 

5.  In  such  case  in  view  of  the  evidence  tending  to  establish  a 
conspiracy  between  the  defendants,  and  also  of  that  tending  to 
show  that  three  men  actually  committed  the  robbery,  evidence  of 
the  conviction  and  sentence  of  the  other  defendants  was  proi)erly 
admitted. 

6.  The  court  is  not  required  in  a  homicide  case  to  call  the  jury's 
attention  to  every  item  of  evidence,  and  it  is  no  objection  to  a 
charge  that  something  more  might  have  been  added.    The  charge 


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COMMONWEALTH  v.  DENNERT,  Appellant.      225 

1917.]  Syllabus—Statement  of  Facts. 

is  sufficient  if  it  embraces  the  important  features  for  and  against 

the  defendant. 

7.  In  a  homicide  case  it  is  not  error  for  the  court  to  charge 
^'It  would  be^  a  disgrace  to  the  administration  of  the  law 
if  any  considerable  number  of  innocent  men  were  ever  convicted 
and  it  would  be  equally  a  disgrace  if  any  large  number  of  guilty 
men  escaped." 

8.  Where  a  summons  mailed  to  a  juror  in  a  borough  was  errone- 
ously delivered  to  a  i)er8on  of  the  same  name  residing  in  an  ad- 
joining township  and  using  the  same  post  office,  and  the  latter 
appeared  and  on  his  voir  dire  gave  his  correct  name  and  residence, 
and  was  accepted  and  served  as  a  juror,  such  irregularity  was 
cured  and  affords  no  groimd  for  setting  aside  a  verdict  in  a  homi- 
cide case. 

Argued  Sept.  24, 1917.  Appeal,  No.  184,  Jan.  T.,  1917, 
by  defendant,  from  judgment  of  O.  &  T.  Clearfield  Co., 
May  T.,  1916,  No.  50,  on  verdict  of  guilty  of  murder  of 
the  first  decree  in  case  of  Commonwealth  of  Pennsyl- 
vania V.  W.  M.  Dennery,  alias  Mike  Dennery,  alias 
Whltey.  Before  Brown,  C.  J.,  Mbstrbzat,  Potter, 
Stewart,  Moschzisker,  Frazer  and  Walung,  JJ.  Af- 
firmed. 

Indictment  for  murder.    Before  Bell,  P.  J. 

Prom  the  evidence  it  appears  that  Tom  Shade,  a  crip- 
ple, lived  alone  in  a  shanty  in  Clearfield  Borough  and 
worked  for  a  brick  company.  The  shanty  had  two 
rooms,  a  front  room,  in  which  was  Shade's  bed,  and  a 
kitchen.  On  January  31,  1916,  he  had  quit  work  for  a 
day  or  two  and  was  indulging,  as  he  occasionally  did,  in 
the  excessive  use  of  liquor,  having  at  the  shanty  at  that 
time  a  small  keg  of  beer  and  a  bottle  of  whiskey,  which 
he  shared  with  some  of  his  friends  who  called  during  the 
day.  On  that  evening,  at  about  fifteen  minutes  after  six 
o'clock,  while  he  and  John  Rowles,  the  deceased,  were 
in  the  front  room,  and  two  other  friends  named  Patrick 
Kelley  and  Michael  Brawley  were  in  the  kitchen,  three 
men  armed  with  revolvers  and  their  faces  partly  con- 
cealed by  handkerchiefs  entered  the  shanty,  two  in  the 

Vol.  cclix — 15 


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226      COMMONWEALTH  v.  DENNERY,  Appellant. 

Statement  of  Facts.  [259  Pa. 

kitchen  and  the  third  in  the  front  room.  The  latter  at 
once  grabbed  Bowles'  face  and  turned  it  aside  with  his 
left  hand  and  with  his  right  hand  placed  the  revolver 
against  Bowles'  head  and  fired^  killing  him  instantly. 
The  assailant  then  covered  Shade  with  his  revolver,  and 
with  repeated  threats  of  instant  death  demanded  his 
money  and  compelled  him  to  search  therefor  in  different 
parts  of  the  room,  including  the  bed,  but  found  none.  At 
the  same  time  Kelley  and  Brawley  were  held  up  by  the 
two  robbers  in  the  kitchen  and  forced  to  stand  facing  the 
wall  with  their  hands  above  their  heads  while  they  were 
searched. 

Meantime  the  robber  in  the  front  room  looked  through 
the  door  into  the  kitchen  and  told  his  confederates  to 
search  the  man  with  the  cap  on,  referring  to  Kelley,  and 
especially  to  look  in  the  watch  pocket  of  his  pants,  where 
they  found  two  ten  dollar  bills  and  a  five  dollar  bill,  all 
of  which  were  taken  and  the  robbers  departed. 

Mike  Dennery,  the  defendant,  has  an  unusually  light 
complexion  and  is  a  large  man,  about  twenty-seven  years 
of  age,  a  sailor  on  the  lakes  in  summer  and  a  tramp  in 
winter.  He  came  to  Clearfield  about  December  27, 1915, 
and  until  the  fifteeniQi  of  January,  1916,  was  employed 
there  as  dish  washer  in  a  hotel.  When  he  ceased  that 
work  he  had  a  few  dollars  and  remained  around  Clear- 
field until  the  evening  of  the  homicide,  sleeping  with 
other  tramps  at  a  brick  kiln.  During  this  time  he  did 
some  begging  and  lived  as  such  men  usually  do,  spending 
considerable  time  at  a  place  called  "the  camp"  on  the 
bank  of  the  river,  where  tramps  built  a  fire  and  did 
cooking.  John  Bowles,  the  deceased,  was  a  resident  of 
Clearfield  and  worked  nights  at  one  of  the  brick  plants. 
He  was  subject  to  fits,  not  strong  in  any  respect,  and 
had  at  one  time  been  an  inmate  of  the  county  home.  He 
had  no  regular  boarding  place  for  some  days  prior  to 
bis  death  and  seems  to  have  associated  more  or  less  with 
tramps.  He  met  the  defendant  about  two  weeks  prior 
to  his  death  and  a  friendship  sprang  up  between  them ; 


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COMMONWEALTH  v.  DENNERY,  AppeUant.      227 
1917.]  Statement  of  Facts. 

they  were  often  seen  together  and  he  introduced  the  de- 
fendant as  his  brother ;  they  tried  to  rent  a  shack  for 
their  joint  use  and  were  together  several  times  at 
Shade's  shanty,  including  the  morning  of  the  day  of  the 
homicide;  at  which  time  Bowles  gave  Kelley  two  ten 
dollar  bills  and  a  five  dollar  bill  belonging  to  Shade,  and 
which  Kelley  then  put  in  the  watch  pocket  of  his  pants. 

Before  the  homicide  the  defendant  had  become  ac- 
quainted with  two  other  tramps  known  as  Allen  and 
Wilson ;  and  the  three  were  jointly  indicted  for  the  mur- 
der of  Bowles.  Allen  and  Wilson  were  arrested  the  same 
night  at  DuBois  on  an  outgoing  freight  train,  and  this 
defendant,  who  left  Clearfield  that  evening,  was  appre- 
hended about  seven  months  later  at  Cleveland,  Ohio, 
where  he  was  working  under  an  assumed  name.  Mean- 
time Allen  and  Wilson,  for  their  complicity  in  the  crime, 
had  been  tried  and  convicted  of  murder  in  the  second 
degree.  At  the  trial  of  this  defendant  a  large  amount  of 
testimony  was  submitted  tending  to  show,  inter  alia, 
that  a  few  days  prior  to  the  robbery  he  saw  Shade  have 
about  eighty  dollars  at  the  shanty;  that  at  about  one 
o'clock  on  the  day  of  the  crime  the  three  defendants  were 
at  the  camp  where  they  ate  dinner,  also  drank  intoxi- 
cating liquor  and  were  overheard  talking  about  the 
money  at  the  shanty  and  planning  to  go  and  take  it; 
that  later  in  the  afternoon  they  returned  to  camp  and 
continued  the  talk  upon  the  same  subject  and  left  there 
together  about  one-half  hour  before  the  crime  was  com- 
mitted. 

It  was  raining  that  evening  and  some  minutes  after 
the  robbery  Dennery  came  to  one  of  the  brick  kilns  wet 
and  muddy,  appeared  to  be  nervous  and  excited  and  in  a 
hurry  and  stated  to  two  other  tramps  there  with  whom 
he  was  acquainted  that,  'Ve  had  some  shooting  up  there 

and  the  neighbors  are  telephoning  for  the  police 

you  better  beat  it'';  and  further  said,  *'as  soon  as  we 
went  in  Jimmy  (meaning  Wilson)  started  to  shoot'*; 
and  also  in  effect  that  he  would  get  even  with  his  con- 


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228      COMMONWEALTH  v.  DENNERY,  Appellant. 

Statement  of  Facta — ^Assignment  of  Errors.  [250  Pa. 
federates  for  keeping  all  of  the  money.  Then  he  and  the 
two  others  thus  addressed  caught  a  freight  train  and  left 
Clearfield.  All  the  defendants  denied  their  guilt  and 
submitted  evidence  tending  to  discredit  and  explain  that 
of  the  Commonwealth.  The  evidence  for  the  defense 
tended  to  show  that  this  defendant  returned  that  night 
and  got  some  underwear  at  the  brick  kiln,  then  caught 
another  train  out  before  daylight  and  went  into  an  ad- 
joining county  where  he  worked  a  week  in  an  ice  plant 
and  served  ten  days  in  jail  for  trespassing  on  the  rail- 
road, and  in  each  instance  there  gave  his  true  name. 
Each  of  his  confederates  had  a  i*evolver  when  arrested; 
and  money  corresponding  to  that  taken  from  Kelley  was 
found  on  the  car  floor  where  one  of  them  sat  when  being 
brought  back  that  night  from  DuBois.  At  Clearfield 
this  defendant  was  sometimes  referred  to  as  "The  Big 
Swede,"  although  not  of  that  nationality.  Shade,  who 
knew  him  well  and  had  a  good  chance  to  see  him  that 
night,  as  the  room  was  lighted  up  and  the  handkerchief 
covered  only  the  lower  part  of  his  face,  testified  posi- 
tively that  he  was  the  man  who  shot  Rowles ;  and  Kel- 
ley, who  based  his  conclusion  on  the  assailant's  voice, 
was  of  the  same  opinion,  though  not  so  positive. 

Just  after  the  robbers  had  left  the  shanty.  Shade  said 
to  Kelley  and  Brawley,  in  effect,  that  it  was  the  big 
Swede  who  shot  Bowles. 

There  was  evidence  to  the  effect  that  three  or  four  days 
prior  to  the  murder  Rowles  had  said  in  the  presence  of 
defendant  that  the  latter  had  taken  money  from  him 
and  also  had  attempted  to  commit  upon  him  an  unnat- 
ural offense. 

Verdict  of  guilty  of  murder  of  the  first  degree  on  which 
judgment  of  sentence  was  subsequently  passed.  Def^id- 
ant  appealed. 

Errors  assigned,  among  others,  were  various  rulings 
on  evidence,  the  charge  of  the  court,  the  refusal  of  de- 
fendant's motion  for  a  new  trial,  and  judgment  of  the 
court  imposing  sentence. 


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COMMONWEALTH  v.  DENNERY,  Appellant.  229 
1917.]  Arg^umenta — Opinion  of  the  Court. 

A.  M.  lAveright  and  James  A.  Qleason,  with  them  W. 
H.  Patterson,  Jr.,  and  D.  L.  Krehs,  Jr,,  for  appellant. — 
The  evidence  that  deceased  had  charged  defendant  with 
attempting  to  commit  an  unnatural  crime  was  errone- 
ously admitted:  Commonwealth  v.  Andrews,  234  Pa. 
597;  Commonwealth  v.  Haines,  257  Pa.  289;  Common- 
wealth V.  Silcox,  161  Pa.  485. 

The  charge  was  inadequate.  It  is  the  duty  of  the 
court  to  call  the  attention  of  the  jury  to  the  testimony  of 
the  numerous  witnesses  called  by  the  defendant  in  sup- 
port of  a  material  point:  Commonwealth  v.  Andrews, 
234  Pa.  597;  Commonwealth  v.  Kaiser,  184  Pa.  493; 
Commonwealth  v.  Colandro,  231  Pa.  343;  Common- 
wealth V.  Ronello,  251  Pa.  329. 

The  jury  was  not  lawfully  constituted:  Common- 
wealth V.  Beucher,  10  Pa.  C.  C.  3;  Commonwealth  v. 
Spring,  5  Clark  (Pa.)  238. 

Walter  Welch,  District  Attorney,  and  Allison  0. 
Smith,  for  appellee. — Evidence  indicating  that  deceased 
had  charged  defendant  with  attempting  to  commit  an 
unnatural  crime  Was  properly  admitted:  Common- 
wealth V.  Haines,  257  Pa.  289. 

The  fact  that  the  wrong  person  was  summoned  as  a 
juror  is  not  ground  for  the  granting  of  a  new  trial  in  a 
homicide  case  where  such  person  appeared,  was  examined 
on  his  voir  dire  and  accepted  as  a  juror :  Acts  of  Febru- 
ary 21,  1814,  Sec.  1,  P.  L.  60,  and  March  31,  1860,  P.  L. 
427,  Sec.  53. 

Opinion  by  Ma.  Justice  Walung,  October  19, 1917: 
This  is  an  appeal  by  the  defendant  from  the  judgment 
on  conviction  of  murder  of  the  first  degree.  We  have 
carefully  examined  all  of  the  assignments  of  error  and 
the  entire  record  and  find  no  reason  to  disturb  the  judg- 
ment. The  case  was  well  tried  by  court  and  counsel  and 
the  verdict  is  supported  by  abundant  evidence. 
Conceding  that  defendant  returned  to  Clearfield  for  a 


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230      COMMONWEALTn  v,  DENNERT,  Appellant. 

Opinion  of  the  Court  [259  Pa. 

short  time  on  the  night  of  the  homicide  and  later  gave 
his  correct  name  in  the  adjoining  county,  the  court  could 
not  instruct  the  jury  that  as  matter  of  law  such  facts  re- 
butted any  inference  that  defendant  fled  to  avoid  ar- 
rest. The  statement  made  by  the  witness,  Shade,  just 
as  the  robbers  departed  was  properly  admitted  as  part  of 
the  res  gestae.  The  fact  that  the  deceased  had  accused 
defendant  of  criminal  offenses  was  admissible  on  the 
question  of  motive,  as  it  tended  to  show  ill  feeling  be- 
tween them.  A  man  would  naturally  hate  one  who  had 
accused  him  of  attempting  to  commit  an  infamous  crime. 
This  evidence  merely  went  to  the  extent  of  showing  that 
the  deceased  had  made  such  an  accusation  against  de- 
fendant and  for  that  purpose  it  was  competent.  See 
Commonwealth  v.  Andrews,  234  Pa.  597.  As  Rowles 
was  not  resisting  the  robbers,  his  murder  was  such  as 
might  suggest  some  other  motive,  hence  it  was  proper  for 
the  Commonwealth  to  prove  any  facts  naturally  tending 
to  show  the  defendant's  prior  hostility  to  the  deceased. 
The  evidence  did  not  establish  defendant's  guilt  of  an  in- 
dependent crime  and  was  not  admissible  for  that  pur- 
pose: Commonwealth  v.  Haines,  257  Pa.  289. 

The  charge  was  comprehensive  and  accurate,  embrac- 
ing the  important  features  for  and  against  the  defend- 
ant ;  and  was  fair  and  adequate.  The  court  is  not  re- 
quired to  call  the  jury's  attention  to  every  item  of  evi- 
dence, and  it  is  no  objection  to  a  charge  that  something 
more  might  properly  have  been  added. 

*'It  is  not  possible  nor  even  desirable  that  the  judge 
should  refer  to  and  emphasize  every  item  of  evidence  on 
both  sides  in  a  way  that  the  counsel  would  consider  ade- 
quate. In  doing  so  he  would  run  much  risk  of  coming  to 
speak  as  an  advocate  rather  than  a  judge.  Nor  is  he  re- 
quired to  go  over  all  the  evidence  on  any  particular  point 
every  time  he  refers  to  the  point  in  the  course  of  his 
charge.  It  is  enough  if  he  gives  to  the  jury  a  general 
review  of  the  evidence  on  the  one  side  and  the  other, 
which  fairly  and  adequately  presents  the  respective  con- 


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COMMONWEALTH  v.  DENNERT,  Appellant.      231 
1917.]  Opinion  of  the  Court. 

tentions  of  the  parties,  with  enough  reference  to  the 
items  of  evidence  to  assist  the  jury  in  recalling  it  as  a 
substantial  whole,  and  to  appreciate  its  bearing'^ :  Com- 
monwealth V.  Kaiser,  184  Pa.  493,  499.  It  was  not  legal 
error  for  the  court  to  say  to  the  jury  that,  "It  would  be  a 
disgrace  to  the  administration  of  the  law  if  any  con- 
siderable number  of  innocent  men  were  ever  convicted 
and  it  would  be  equally  a  disgrace  if  any  large  number 
of  guilty  men  escaped."  In  view  of  the  evidence  tending 
to  establish  a  conspiracy  between  the  defendants,  and 
also  of  that  tending  to  show  that  three  men  actually 
committed  the  robbery,  evidence  of  the  conviction  and 
sentence  of  the  other  defendants  was  proper  for  the  con- 
sideration of  the  jury  in  this  case. 

There  was  a  John  Rodkey  residing  in  Houtzdale  Bor- 
ough, and  also  a  John  Rodkey  residing  about  two  miles 
from  the  borough,  in  an  adjoining  township.  The  bor- 
ough was  the  post  office  of  both.  John  Rodkey,  of  Houtz- 
dale, was  drawn  as  a  juror  and  the  postal  authorities  de- 
livered the  summons  to  the  one  residing  in  the  township. 
He  appeared  as  a  juror  and  on  his  voir  dire  gave  his 
correct  residence  as  above  stated.  He  was  accepted  and 
served  as  a  juror  in  this  case.  There  was  no  fraud  or  im- 
personation. Conceding  that  the  summons  was  intended 
for  the  other  John  Rodkey,  it  was  merely  such  an  irregu- 
larity as  was  cured  by  the  statute  and  aflfords  no  ground 
for  setting  aside  the  verdict.  See  Commonwealth  v. 
Potts,  241  Pa.  325. 

The  assignments  of  error  are  all  overruled,  the  judg- 
ment is  affirmed  and  the  record  is  remitted  for  the  pur- 
pose of  execution. 


Town  Meeting  Party  Nomination  Papers  (No,  1). 

Electiona — NominaHons  —  Candidates  —  Official   ballot  —  Party 
nominees. 
.Under  the  Act  of  April  29,  1903,  P.  L.  338,  relating  to  election  % 


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232    TOWN  MEETING  PARTY  NOM.  PAPERS  (NO.  1). 

Syllabus — Opinion  of  Court  below.  [259  Pa. 

a  person  who  has  been  nominated  for  public  office  by  a  political 
party  at  a  primary  election,  may  also  be  nominated  by  a  political 
party  subsequently  formed,  by  means  of  nomination  papers,  and  is 
entitled  to  have  his  name  printed  in  the  party  colunm  of  each  party 
which  nominates  hioL 

Argued  Nov.  1, 1917.  Appeal,  No.  309,  Jan.  T.,  1917, 
from  order  of  C.  P.  No.  3,  Philadelphia  Co.,  Sept.  T., 
1917,  No.  4104,  sustaining  objections  to  nomination 
papers.  In  re  Nomination  Papers  of  Town  Meeting  Party 
Purporting  to  Place  in  Nomination  Francis  F.  Burch, 
W.  T.  Colburn,  Dennis  J.  Grace,  Louis  Karstaedt  and  I. 
Walter  Thompson,  for  the  Offices  of  Councilmen  for  the 
Forty-Sixth  Ward  of  the  City  of  Philadelphia.  Before 
Brown,  C.  J.,  Mbstbezat,  Pottbb,  Stewart,  Moschzis- 
KBB  and  Walung,  J  J.    Reversed. 

Objections  to  nomination  papers. 

The  facts  appear  in  the  following  opinion  by  Wbssel, 
J.,  specially  presiding ;  Carr  and  Davis,  J  J.,  concurring : 

On  September  19, 1917,  the  Washington  Party  was  en- 
titled to  nominate  candidates  for  Common  Council,  in 
the  46th  Ward  of  this  city.  On  that  day  the  qualified 
electors  of  that  party  in  that  ward,  placed  in  nomina- 
tion, inter  alia,  Francis  F.  Burch,  W.  T.  Colburn,  Louis 
Karstaedt,  and  I.  Walter  Thompson  for  the  offices  oif 
Common  Councilmen.  Subsequently  the  same  men  were 
nominated  for  the  same  offices  by  nominators  who  desire 
them  placed  in  nomination  under  the  title  which  had 
been  preempted  in  that  ward  as  the  "Town  Meeting 
Party.^^  This  is  objected  to,  it  being  contended  that 
when  a  person  is  designated  by  a  regular  political  party 
as  its  candidate  for  a  designated  office,  and  such  person 
does  not  decline  such  nomination  other  electors  cannot, 
by  an  independent  nominating  petition  secure  a  duplica- 
tion of  his  name  upon  the  ballot,  under  some  other  ap- 
pellation. This  objection  is  supported  by  Common- 
wealth V.  Martin,  21  Pa.  C.  C.  Reps.  422  (1898).  That 
waa  a  petition  for  a  peremptory  mandamus  against  the 


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TOWN  MEETING  PARTY  NOM.  I^APERS  (No.  1).  233 
1917.]  Opinion  of  Court  below. 

secretary  of  the  Commonwealth,  to  require  him  to  file 
certain  nomination  papers.  It  appeared  that  the  peti- 
tioner, and  other  qualified  electors  of  this  State,  consti- 
tuting in  number  more  than  two  per  cent,  of  the  largest 
entire  vote  cast  for  any  officer  elected  at  the  last  preced- 
ing State  election,  signed  a  nomination  paper  for  the 
purpose  of  placing  in  nomination  for  the  office  of  gover- 
nor, William  A.  Stone ;  for  the  office  of  lieutenant-gov- 
ernor, J.  P.  S.  Grobin ;  for  secretary  of  internal  affairs, 
James  W.  Latta ;  for  congressman-at-large,  Oalusha  A. 
Grow  and  Samuel  A.  Davenport;  for  judges  of  Superior 
Court,  W.  W.  Porter  and  W.  D.  Porter.  That  nomina- 
tion paper  thus  signed  was  duly  presented  on  October 
4th  to  the  defendant,  David  Martin,  Secretary  of  the 
Commonwealth,  at  his  office  in  the  City  of  Harrisburg, 
for  the  purpose  of  having  the  same  filed  in  accordance 
with  the  law.  He  refused  to  receive  or  file  said  paper. 
The  candidates  presented  by  that  nomination  paper,  had 
previously  been  nominated  by  the  State  convention  of 
the  Republican  party,  and  its  nomination  for  the  same 
several  and  respective  offices  for  which  they  had  been, 
named  had  been  duly  certified  to  the  secretary  of  the 
Commonwealth  in  such  a  way  to  secure  a  place  for  their 
names  on  the  official  ballot.  In  refusing  the  petition, 
Mr.  Justice  Stewart  (then  specially  presiding  as  Presi- 
dent Judge  of  the  39th  Judicial  District),  said  (p.  423)  : 

"In  another  proceeding  determined  only  yesterday,  in 
which  we  adjudged  invalid  the  certificate  of  nomination, 
filed  on  behalf  of  the  same  political  party  that  has  of- 
fered this  nomination  paper,  we  endeavored  to  point  out 
the  distinction  made  by  the  law  between  political  com- 
binations, some  of  which  are  to  be  regarded  as  parties, 
and  others,  lacking  certain  characteristics  as  less  than 
parties.  The  second  section  of  the  Act  of  July  9, 1897, 
P.  L.  223,  known  as  the  ballot  law,  relates  wholly  and  ex- 
clusively to  political  combinations  which  the  law  regards 
as  parties,  and  so  designates  them.  The  third  section 
makes  provisions  for  such  combinations  as  are  less  than 


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234    TOWN  MEETING  PARTY  NOM.  PAPERS  (NO.  1). 

Opiiiiou  of  Court  below.  l^H^  P«u 

parties,  and  such  are  referred  to  as  political  bodies.    The 
word  party  nowhere  occurs  in  this  section. 

"The  distinction  thus  made  in  the  act  governs  not 
merely  in  procedure,  but  the  rights  and  powers  of  these 
different  political  combinations  with  respect  to  the  of- 
ficial ballot  are  determined  therefrom. 

"A  political  party — .that  is  a  party  within  the  l^isla- 
tive  sense — ^has  a  right  to  have  a  separate  column  on  the 
>  ballot  for  its  own  ticket,  and  it  is  a  matter  of  no  concern 
to  the  law,  so  far  as  regards  the  composition  of  the  bal- 
lot, who  compose  that  ticket,  whether  it  includes  the 
same  names  that  appear  on  the  other  tickets  or  not  It 
is  an  unquestioned  right  that  each  party  has  to  name  its 
own  ticket  and  constitute  it  as  it  pleases. 

"But  with  respect  to  combinations,  which  are  less  than 
parties,  the  law  is  different.  When  either  of  the  estab- 
lished and  recognized  parties  has  placed  a  candidate  in 
nomination  for  a  particular  ofSce,  and  has  secured  for 
such  candidate  a  place  on  the  ofBcial  ballot,  what  possi- 
ble end  is  served  by  allowing  the  same  name  to  again 
appear  in  connection  with  the  same  office  by  virtue  of 
nomination  papers?  Once  upon  the  ticket  every  elector 
will  be  afforded  the  privilege  of  voting  for  this  particu- 
lar person  in  a  sufficiently  convenient  way.  It  is  no  an- 
swer to  say  that  it  would  be  helpful  to  the  political  body 
that  asks  the  privilege.  The  law  was  not  designed  to 
advance  the  interests  of  political  combinations,  but  to 
secure  a  safe  and  convenient  ballot,  that  in  its  turn 
would  secure  an  honest  and  intelligent  expression  of  the 
popular  will.  It  regards  a  mere  political  combination, 
— one  less  than  a  party — as  a  body  of  dissenters,  and 
affords  them  facility  for  expressing  their  dissent  on  the 
ofBcial  ballot  by  placing  thereon  a  candidate;  but  it 
must  be  a  candidate  not  already  nominated  by  the  party. 
The  manifest  purpose  of  Section  3,  of  the  act  we  are  con- 
sidering, was  to  insure  to  the  electors  of  the  State  a  lib- 
erty which  no  party  discipline  could  hinder  or  restrain 
and  to  enable  them  to  attempt  at  least  by  the  use  of  the 


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TOWN  MEETING  PARTY  NOM.  PAPERS  (No.  1).  235 
1917.]  Opinion  of  Court  below. 

common  ballot,  the  accomplishment  of  something  that 
no  party  has  provided  for.    Beyond  this  it  does  not  go. 
There  is  room  on  the  of&cial  ballot  for  the  ticket  of  any 
party ;  there  is  likewise  room  for  any  candidate  not  in- 
cluded in  one  or  the  other  of  the  party  tickets,  who  may 
be  placed  in  nomination  by  nomination  papers,  and  thus 
every  political  combination  is  provided  for,  as  we  still 
have  a  ballot  reasonable  in  size  and  readily  understood 
by  the  average  voter.    But  if  once  we  allow  that  candi-  /  f 
dates  nominated  by  a  party  may  be  nominated  again  and  | 
again  by  nomination  papers,  the  result  would  be  a  ballot '  [ 
impracticable  and  unintelligible  to  the  ordinary  under-  \\ 
standing.''  ^ 

But  the  nominators  contend  that  that  decision  is  not 
controlling,  because  of  the  subsequent  legislation.    They 
urge  that  the  law,  as  then  construed  by  Mr.  Justice 
Stewart,  has  been  changed  by  the  Act  of  April  29, 1903, 
P.  L.  338,  which  provides,  in  its  second  section  (which 
amends  the  14th  section  of  the  Act  of  June,  1893,  as 
amended),  inter  alia,  (p.  342) :  "Whenever  any  candi-  ; 
date  shall  receive  more  than  one  nomination  for  the  same  j 
office,  his  naiue  shall  be  printed  once,  and  the  names  of  I  j 
each  political  party,  so  nominating  him,  shall  be  printed  1 1 
to  the  right  of  the  name  of  such  candidate,  arranged  in(  ; 
the  same  order  as  candidates'  names  are  grouped." 

With  this  contention  we  are  unable  to  agree.  Justice 
Stbwabt's  decision  was  rendered  in  1898.  The  legis- 
lation which  was  enacted  some  five  years  later,  did  not 
amend  either  the  second  or  third  sections  of  the  Acts  of 
1893,  as  amended  by  the  Act  of  1897,  then  construed. 
The  amendatory  Act  of  1903  merely  cites  and  amends 
the  ninth,  fourteenth,  twenty-second,  twenty-seventh, 
twenty-eighth  and  thirtieth  sections  of  those  acts.  Those 
amendments  relate  to  the  duties  of  certain  officers;  to 
the  form  and  arrangements  of  the  ballots;  to  the  duties 
of  the  voter  in  the  polling  place;  to  the  counting  of  the 
votes  and  the  preservation  of  the  ballots.  But  those 
amendments  make  no  change  in  the  legislation,  designa^ 


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236    TOWN  MEETING  PARTY  NOM.  PAPERS  (NO.  1). 

Opinion  of  Court  below.  [259  Pa. 

ing  by  whom  and  in  what  manner  nominaticms  may  be 
made.  A  second  section  of  that  act  designates  who  shall 
be  entitled  to  file  nomination  papers :  Bntler  Township 
Republican  Nomination  Papers,  14  Pa.  C.  C.  Beps.  470 
(1894). 

It  is  also  apparent  from  the  part  of  the  paragraph  of 
the  Act  of  1903,  above  quoted  (P.  L.  342),  that  the  legis- 
lature was  considering  then  not  the  rights  of  the  per- 
sons exercising  their  prerogatives  as  nominators  but  the 
arrangement  of  the  ballot  as  regards  those  candidates 
who  should  have  received  the  nomination  of  more  than 
one  "Political  Parties."  That  there  is  a  clear  distinction 
between  such  a  body  and  those  placing  electors  in  nomi- 
nation by  nominating  papers,  appears  from  Mr.  Justice 
Stewart's  opinion  In  re  Citizen  Party  Nominations,  21 
Pa.  C.  C.  Reps.  417  (1898),  where  he  says  (p.  418) : 

"While  our  legislation  recognized  political  combina-j 
tions,  it  has  nothing  to  do  with  their  creation,  continu-j 
ance  or  dissolution.  Not  being  born  under  the  law,  they 
are  not  subject  to  it.  They  are  left  free  to  govern  them- 
selves and  regulate  their  own  actions.  The  law  does  not 
compel  the  citizen  to  attach  himself  to  any ;  he  may  or 
may  not,  as  suits  his  pleasure.  When  he  does  the  law 
has  nothing  to  do  with  the  terms  or  conditions  of  his 
membership.  It  takes  no  notice  of  his  standing  in  the 
society,  except  it  be  official,  and  then  only  in  a  single 
case,  and  cares  nothing  whether  he  gives  much  or  little 
support,  whether  he  votes  its  ticket  straight  or  scratched 
r^ularly  or  only  occasionally.  The  measure  of  his  ac- 
tivity and  allegiance  concerns  only  himself  and  the 
party. 

"But  this  indiflFerence  of  the  law  ceases  when  the 
action  of  a  political  combination  brings  it  into  relation 
with  what  is  known  as  the  official  ballot.  When  an  as- 
sociation or  combination  of  electors  demands  for  its 
candidates  a  place  on  the  ballot,  and  its  right  to  this 
is  challenged,  the  law  concerns  itself  to  inquire  just 


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TOWN  MEETING  PARTY  NOM.  PAPERS  (No.  1),  237 
1017.]  Opinion  of  Court  below. 

what  its  rights  are,  and  this  involves  an  inquiry  into  the 
composition  and  character  of  the  combination. 

"It  is  with  combinations  that  the  law  deals,  not  the 
individual  elector,  in  such  questions,  and  with  respect  to 
the  former,  it  makes  its  own  distinctions.  All  political 
combinations  are  not  alike — ^that  is,  not  of  like  grade, 
and  their  rights  diflFer  correspondingly. 

"One  clear  distinction  the  law  makes  between  combi- 
nations which  are  parties,  and  those  which  are  less  than 
parties.  Every  party  is  necessarily  a  combination,  but 
the  converse  that  every  combination  is  a  party,  is  very 
far  from  being  true.  The  distinction  is  easily  discover- 
able in  the  different  provisions  which  are  made  for  each 
kind  of  combination  in  the  Act  of  1893  as  amended  by 
the  Act  of  1897,  and  known  as  the  ballot  law. 

"The  combination  which  is  a  party  places  its  candi- 
dates in  nomination  by  a  proceeding  wholly  different 
from  that  which  a  combination  less  than  a  party  must 
follow  to  accomplish  the  same  object.  The  former  files 
certificates  of  nomination,  the  latter  nomination  papers, 
a  difference  of  suflScient  importance  to  provoke  the  pres- 
ent controversy. 

"Since  it  is  the  legislative  understanding  of  what  is 
meant  by  the  term  political  party  that  is  to  govern,  it 
cannot  be  in  the  least  helpful  to  have  recourse  to  the 
lexicographers.  We  shall  find  no  definition  that  ex- 
presses the  legislative  idea.  For  instance,  an  admitted 
essential  feature  of  a  political  party  within  legislative 
meaning,  that  it  shall  have  polled  a  certain  per  centum 
of  a  certain  vote  cast  at  the  next  preceding  election.  We 
shall  not  find  that  expressed  in  any  definition. 

"To  discover  what  is  meant  by  the  term  we  are  thrown 
back  upon  the  act  or  series  of  acts  which  relate  to  the 
general  subject,  and  to  these  we  are  confined.  Confess- 
ing our  inability  to  put  it  all  within  the  limits  of  a 
definition,  we  can  yet  indicate  certain  essential  charac- 
teristics which  are  sufficient  for  present  purposes.  We 
have  already  referred  to  one — the  combination  must 


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238    TOWN  MEETING  PARTY  NOM.  PAPERS  (NO.  !)• 

Opinion  of  Court  below.  [259  Pa. 

have  polled  a  certain  proportion  of  the  highest  vote  cast 
at  the  next  preceding  election.  Another  is^  that  it  mnst^ 
in  its  aims  and  purposes,  be  as  broad  as  the  State  itself. 
That  is  to  say,  its  purpose  must  be  to  accomplish  results 
affecting  and  concerning  the  entire  citizenship,  as  dis- 
tinguished from  the  particular  section  or  district.  Not 
that  it  must  have  supporters  in  every  political  subdi- 
vision of  the  State;  it  may  have  them  in  but  a  single 
county,  and  yet  be  a  political  party ;  but  its  object  must 
be  of  general  concern,  so  that  it  can  invite  to  its  sup- 
port the  people  of  the  State,  irrespective  of  locality. 
Where  both  these  features  are  found  in  any  combination, 
it  is  a  party  within  the  legislative  meaning;  where  either 
is  lacking,  it  is  a  combination  less  than  a  party."  To 
that  may  be  added  the  opinion  of  Judge  Weiss  in  Jeff- 
ries' nomination,  24  Pa.  C.  C.  Reps.  529  (1900) ;  Judge 
Pbnnypackbr's  opinion  In  re  McKinley-Citizen's  Party, 
19  Pa.  C.  C.  Reps.  132  (1896) ;  and  In  re  Public  Opin- 
ion Party,  27  Pa.  C.  C.  Reps.  145  (1897) ;  Judge  Mc- 
MiGHAEL's  opinion  In  re  Citizen's  Party  Nomination,  22 
Pa.  C.  C.  Reps.  65  (1898) ;  Judge  Simonton's  opinion 
in  Handley  v.  Reeder,  18  Pa.  C.  C.  Reps.  456  (1896). 

The  subject  is  an  important  one.  We  regret  that  the 
necessity  for  an  immediate  decision  has  limited  our  re- 
search to  a  few  hours.  Our  conclusions  may  cause  thei 
electors  to  exercise  a  little  more  care  and  to  expend  some 
additional  time  in  the  marking  of  their  ballots,  but  they 
may  still  vote  for  the  nominee  above  referred  to,  if  they 
be  their  choice. 

The  court  sustained  the  objections  filed  by  James  A. 
Walker,  E.  S.  Krombolz  and  R.  Emmett  Dillon  to  the 
nomination  papers  of  the  Town  Meeting  Party,  placing 
in  nomination  Francis  F.  Burch,  I.  Walter  Thompson, 
Louis  Karstffidt  and  W.  T.  Colburn  for  the  oflQces  of  com- 
mon councilman  in  the  Forty-sixth  Ward  of  Philadel- 
phia, and  restrained  the  county  commissioners  from 
printing  the  said  Town  Meeting  nominations  upon  the 
official  ballot  for  said  ward.    Francis  F,  Burch,  W.  T, 


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TOWN  MEETING  PARTY  NOM,  PAPERS  (No.  1).  239 
1917.]        Assignment  of  Errors — Opinion  of  the  Court. 
Ck>lburn,  I.  Walter  Thompson  and  Louis  Karstaedt  ap- 
pealed. 

Errors  assigned  were  in  sustaining  the  objections  and 
the  order  erf  the  court. 

Isidore  Stern  and  James  Oay  Gordon,  for  appellants. 

Thomas  James  Meagher,  for  appellees. 

Per  Curum,  November  1,  1917 : 

In  entering  its  decree  the  learned  court  below  regard- 
ed as  controlling  what  was  said  by  our  Brother  Stewart 
in  Commonwealth  v.  Martin,  21  Pa.  C.  C.  Reps.  422, 
when  he  specially  presided  in  that  proceeding  in  the 
Court  of  Common  Pleas  of  Dauphin  County.  Under 
legislation  passed  five  years  later — ^the  Act  of  April  29, 
1903,  P.  L.  338,  the  appellants  have  the  right  denied 
them  by  the  decree  from  which  they  have  appealed.  In 
view  of  that  legislation  the  decree  of  the  court  below  is 
reversed  and,  now,  November  1, 1917,  upon  due  consider- 
ation, it  is  ordered,  adjudged,  and  decreed  that  the  ob- 
jections filed  by  James  A.  Walker,  E.  S.  Krombolz  and 
B.  Emmett  Dillon  to  the  nomination  papers  of  "The 
Town  Meeting  Party,"  placing  in  nomination  Francis  F. 
Burch,  I.  Walter  Thompson,  Louis  Karstsedt  and  W.  T. 
Colburn  for  the  ofBces  of  common  councilmen  in  the 
Forty-sixth  Ward  of  the  City  of  Philadelphia  be  dis- 
missed and,  it  is  further  ordered,  adjudged,  and  decreed 
that  the  county  commissioners  print  the  names  of  the' 
said  "Town  Meeting  Party's"  nominees  upon  the  oflScial  i 
ballots  for  said  ward,  the  costs  on  this  appeal  and  below  \ 
to  be  paid  by  the  County  of  Philadelphia. 


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240    TOWN  MEETING  PARTY  NOM,  PAPERS  (NO.  2). 
Statement  of  Facts — Opinion  of  the  Court.      [259  Pa. 

Town  Meeting  Party  Nomination  Papers  (No,  2). 

Argued  Nov.  1,  1917.  Appeal,  No.  810,  Jan.  T.,  1917, 
by  John  W.  Graham,  Jr.,  Robert  E.  Lamberton,  William 
W.  Mentzinger,  Jr.,  and  C  Lawrence  Smith,  from  order 
of  C.  P.  No.  3,  Philadelphia  Co.,  sustaining  objections  to 
nomination  papers  In  the  Matter  of  the  Nomination 
Papers  of  the  Town  Meeting  Party  Purporting  to  Place 
in  Nomination  John  W.  Graham,  Jr.,  Robert  E.  Lam- 
berton, William  W.  Mentzinger,  Jr.,  and  C.  Lawrence 
Smith  for  the  Office  of  Common  Councilmen  of  the  Twen- 
ty-second Ward  of  the  City  of  Philadelphia.  Before 
Brown,  C.  J.,  Mestrbzat,  Potter,  Stewart,  Mosch- 
ziSKBR  and  Walling,  JJ. 

Objections  to  nomination  papers.    Before  Carr,  J. 

The  facts  appear  in  Town  Meeting  Party  Nomination 
Papers,  259  Pa.  231  (No.  1). 

The  court  sustained  the  objections  to  the  nomination 
papers.  John  W.  Graham,  Jr.,  Robert  E.  Lamberton, 
William  W.  Mentzinger,  Jr.,  and  C.  Lawrence  Smith 
appealed. 

Errors  assigned  were  in  sustaining  the  objections  and 
the  order  of  the  court. 

Isidore  Stern  and  James  Gay  Gordon,  for  appellants. 

Thomas  James  Meagher,  for  appellees. 

Per  Curiam,  November  1,  1917: 

As  application  was  not  made  to  advance  the  hearing 
of  the  above  case,  it  is  not  now  properly  before  us.  We, 
therefore,  make  no  order  as  to  it.  It  is  to  be  assumed, 
however,  that  what  we  have  this  day  determined  in  the 
case  of  the  Forty-sixth  Ward  will  be  regarded  as  con- 
trolling. 


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GRACE  CONTRACTING  CO.,  AppeL,  v.N.&W.RY.CO.  241 

1918.]  Syllabus. 


Kobert  Grace  Contracting  CJompany,  Appellant,  v. 
Norfolk  &  Western  Kailway  Company. 

Contracts — Written  contract — Subsequent  parol  agreement — Ad- 
vancing time  for  completing  work — Absence  of  provision  as  to  in- 
creased compensation — Quantum  meruit  for  increased  cost — Prac- 
tice, C,  P. — Statement  of  claim — Insufficiency — Affidavit  of  de- 
fense in  nature  of  demurrer — Practice  Act,  May  H,  1915,  P.  L.  Jf83. 

1.  The  effect  of  an  affidavit  of  defense  in  the  nature  of  a  de- 
murrer filed  under  the  Practice  Act  of  May  14,  1916,  P.  L.  483,  is 
to  test  the  sufficiency  of  the  plaintiff's  statement,  which  must  be 
self-sustaining  and  set  out  a  good  cause  of  action. 

2.  The  legal  effect  of  writings  attached  to  the  pleadings  is  for 
the  court  and  cannot  be  controlled  by  averments  of  the  parties. 

3.  Letters  exchanged  in  confirmation  of  a  verbal  agreement  will 
be  presumed  to  correctly  state  it,  especially  where  they  are  retained 
without  objection. 

4.  A  new  agreement  will  supersede  an  old  one  so  far  as  they  can- 
not be  executed  together. 

6.  Where  a  parol  agreement  entered  into  subsequent  to  the  ex- 
ecution of  a  written  contract,  modifies  the  latter  only  in  the  resx)ect 
that  the  work  shall  be  completed  at  an  earlier  date,  a  recovery  can- 
not be  had  on  a  quantum  meruit  for  all  work  thereafter  done  on 
the  theory  that  the  original  contract  has  been  abrogated. 

6.  In  an  action  by  a  construction  company  against  a  railroad 
company,  it  was  alleged  that  plaintiff  entered  into  two  written  con- 
tracts with  the  defendant  to  construct  two  sections  of  a  railroad 
bed  for  defendant  by  December  1st.  All  of  the  work  was  com- 
pleted on  time,  accepted  and  paid  for.  Plaintiff  subsequently 
brought  suit  on  an  alleged  verbal  agreement,  made  during  the 
progress  of  the  work,  and  confirmed  by  letters,  contending  that 
such  agreement  superseded  the  original  contracts.  The  alleged 
change  was  for  the  completion  of  the  work  at  earlier  dates,  Novem- 
ber 7th  as  to  one  contract,  and  October  7th  as  to  the  other,  thereby 
greatly  increasing  the  cost  of  construction.  The  work  was  not 
completed  on  the  earlier  dates,  but  on  December  1st  as  to  the 
one  contract,  and  a  week  earlier  as  to  the  other,  due  to  defendant's 
alleged  dilatoriness  in  furnishing  rails  required  under  an  inde- 
pendent verbal  agre^nent  made  subsequent  to  the  main  contracts. 
The  alleged  new  arrangement  made  no  change  in  the  work  to  be 
done  or  the  price  to  be  paid,  nor  did  it  abrogate  a  provision  for 
award  by  defendant's  chief  epgiooer,  and  plaintiff  sued  on  a  quan- 
Vou  CCUX— 16 


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242  GRACE  CONTRACTING  CO.,  Appel.,  v.N.&W.RT.CO. 

Syllabus — Arguments.  [259  Pa. 

turn  meruit.  From  the  time  of  the  commencement  of  the  worik  under 
the  new  agreement  plaintiff  gave  notice  from  time  to  time  that  it 
would  expect  additional  compensation.  Held,  plaintiff's  statement 
was  insufficient  and  judgment  was  properly  entered  for  the  de- 
fjndant. 

Malone  &  Son  y.  Philadelphia  &  Reading  R.  R.,  167  Pa.  430, 
distinguished. 

Argued  Oct  12, 1917.  Appeal,  No.  127,  Oct.  T.,  1917, 
by  plaintiff,  from  judgment  of  C.  P.  Allegheny  Co.,  Oct. 
T.,  1916,  No.  625,  entered  for  want  of  a  sufficient  state- 
ment of  claim  in  case  of  Robert  Grace  Contracting  Com- 
pany V.  Norfolk  &  Western  Railway  Company.  Befoi'e 
Mbstebzat,  Pottbe,  Stbwabt,  Moschziskbb  and  Wal- 
ling, JJ.    Affirmed. 

Assumpsit  on  quantum  meruit  based  on  alleged  verbal 
agreement  to  complete  at  an  earlier  date  work  being  done 
under  written  contracts.     Before  Bhafer,  P.  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

Defendant  filed  an  affidavit  of  defense  in  the  nature 
of  a  demurrer  under  the  Practice  Act  of  May  14,  1915, 
P.  L.  483. 

The  lower  court  entered  judgment  for  the  defendant. 
Plaintiff  appealed. 

Error  assigned,  among  others,  was  in  entering  judg- 
ment for  the  defendant. 

William  Watson  Smith,  of  Gordon  &  Smith,  for  ap- 
pellant— The  advancing  of  the  time  for  the  completion 
of  the  work,  necessitating  a  change  of  method  in  doing 
the  work  and  consequent  increased  expense,  entitles 
plaintiff  to  recover  a  reasonable  value  of  such  increased 
cost :  Edmundson  v.  Pittsburgh  School  District,  248  Pa. 
559;  Malone  v.  Philadelphia  &  Reading  R.  R.,  157  Pa. 
430;  Vicary  v.  Moore,  2  Watts  451;  Reber  v.  Brown- 
back,  27  Pa.  Superior  Ct.  471 ;  Salt  Lake  City  v.  Smith, 
104  Fed.  Repr.  457;  Somerset  Borough  v.  Ott,  207  Pa* 
539. 


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GRACE  CONTRACTING  CO.,  Appel.,  v.N.&W.RT.CO.  243 
1918.]  Arguments — Opinion  of  the  Court. 

Richard  H.  Hawkins,  of  Dalzell,  Fisher  d  Hawkins, 
with  Mm  Theodore  W.  Reath,  for  appellee. — The  alleged 
modification  of  the  original  written  contracts  changed 
them  only  in  respect  to  the  time  of  the  completion  of  the 
work  and  did  not  alter  the  provisions  thereof  requiring 
the  engineer's  certificate  for  work  done  and  for  extra 
compensation.  The  plaintiff  is  therefore  not  entitled  to 
recover :  McOrann  v.  The  North  Lebanon  Railroad  Co., 
29  Pa.  82;  O'Reilly  v.  Kerns,  52  Pa.  214. 

The  statement  of  claim  exhibits  the  original  contracts 
of  writing  which  were  the  basis  of  the  work,  and  which 
make  the  decision  of  the  chief  engineer  upon  any  con- 
troversy final  and  a  condition  precedent  to  payments  for 
the  work,  and  as  the  statement  fails  to  all^e  an  award 
by,  or  fraud  on  the  part  of  the  chief  engineer,  it  discloses 
no  cause  of  action :  Adinolfi  v.  Hazlett,  242  Pa.  25 ;  Mc- 
Manus  v.  Philadelphia,  201  Pa.  632;  Werneberg  v.  Pitts- 
burgh, 210  Pa.  267;  Jonathan  Clark  &  Sons  Company  v. 
Pittsburgh,  217  Pa.  46. 

The  case  was  properly  decided  upon  demurrer :  Rosen- 
blum  V.  Stolzenberg,  36  Pa.  Superior  Ct.  644 ;  Martins- 
burg  &  Potomac  Railroad  Company  v.  March,  114  U.  S. 
549. 

The  legal  effect  of  writings  which  are  exhibited  with 
pleadings  is  a  question  of  law  and  cannot  be  controlled 
by  contradictory  averments  in  the  pleading  itself :  Leech- 
burg  Building  &  Loan  Association  v.  Kinter,  233  Pa.  354. 

Opinion  by  Me.  Justice  Walmng,  January  7, 1918 : 
This  is  an  action  of  assumpsit  to  recover  a  balance 
alleged  to  be  due  for  railroad  construction. 

Defendant  is  a  Virginia  railroad  company  and  plain- 
tiff is  a  Pennsylvania  construction  corporation.  In  the 
spring  of  1915  defendant  awarded  plaintiff  contracts  for 
the  construction  of  two  sections  of  railroad  bed  in  Vir- 
ginia. One  of  the  contracts  bears  date  of  March  31st 
and  the  other  April  8, 1915.  Each  contract  calls  for  the 
completion  of  the  work  on  or  before  December  1st  of  that 


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244  GRACE  CONTRACTING  CO.,  AppeL,  v.N.&W.RT.CO. 
Opinion  of  the  Court.  [259  Pa. 

year.  The  contracts  are  alike  in  form,  except  as  to  date 
and  reference  to  the  subject-matter,  and  are  very  ex- 
haustive, each  covering  forty-eight  printed  pages.  The 
entire  work  was  placed  under  the  control  and  supervision 
of  defendant's  chief  engineer.  As  the  work  progressed, 
plaintiff  was  to  be  paid  monthly  eighty-five  per  cent,  of 
the  engineer's  estimates  and  balance  on  completion.  The 
contracts  provide,  inter  alia,  that  "All  questions,  differ- 
ences, or  controversies,  which  may  arise  between  the 
parties  hei^eto  in  regard  to  any  work  to  be  done  under 
this  agreement,  whether  as  to  its  performance  or  non- 
performance, or  in  any  way  whatever  pertaining  to  or 
connected  with  the  said  work,  shall  be  referred  to  the 
said  chief  engineer  and  his  decision  shall  be  in  the  na- 
ture of  an  award,  and  shall  be  final  and  conclusive  upon 
both  parties,  unless  the  same  shall  be  reversed  or  modi- 
fled  by  the  president  of  the  company,  upon  appeal  by 
either  party;  and  compliance  on  the  part  of  the  con- 
tractor with  every  such  decision  of  the  chief  engineer 
shall  be  a  condition  precedent  to  the  right  to  receive  any 
payment  hereunder.  This  contract,  and  every  provision 
thereof,  may  be  modified  or  extended  by  the  mutual 
agreement  of  the  parties  hereto,  subject  only  to  the  ap- 
proval of  the  company."  And,  further,  that  the  final 
estimate  of  the  chief  engineer  shall  be  conclusive  upon 
the  parties  unless  modified  by  the  defendant's  president 
on  appeal.  So  far  as  appears  all  of  the  work  was  com- 
pleted, accepted  and  paid  for  as  required  in  the  con- 
tracts. In  fact  the  work  under  one  of  the  contracts  was 
completed  on  the  day  called  for,  to  wit,  December  1, 
1915,  and  the  other  a  week  in  advance  thereof.  Plain- 
tiff's statement  in  this  case,  however,  makes  no  claim  on 
these  contracts  but  sets  up  an  alleged  verbal  agreement, 
made  during  the  progress  of  the  work  and  confirmed  by 
letters,  which  it  avers  superseded  the  originals.  The 
change  alleged  was  for  a  completion  of  the  work  at  an 
earlier  date,  to  wit,  under  one  contract  by  October  Tth 
and  under  the  other  by  November  7,  1915 ;  and  provid- 


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GRACE  CONTRACTING  CO.,  Appel.,  v.N.&W.RY.CO.  245 
1918.]  Opinion  of  the  Court, 

ing  for  double  shift  work,  etc.,  to  bring  about  that  re- 
sult Plaintiff  avers  that  this  change  greatly  increased 
the  cost  of  the  work,  and,  as  no  price  was  fixed  by  the  new 
agreement,  claims  on  a  quantum  meruit  for  all  work 
thereafter  done,  making  a  balance  of  f 62,237.20,  after 
crediting  the  amount  received  according  to  the  provi- 
sions of  the  old  contracts.  Plaintiff  also  avers  that 
about  the  time  of  b^inning  work  under  the  new  agree- 
ment, and  from  time  to  time  thereafter,  it  gave  notipe 
to  defendant  that  it  would  expect  to  receive  additional 
compensation  therefor;  and  that  such  notices  were  re- 
ceived by  defendant  without  protest  being  made  thereto, 
until  long  after  the  completion  of  the  work.  It  fur- 
ther avers  that  by  reason  of  certain  specified  defaults  on 
part  of  defendant,  the  plaintiff  was  entitled  to  approxi- 
mately a  month  and  a  half  additional  time  in  which  to 
complete  the  work. 

The  defendant  filed  an  affidavit  of  defense,  raising 
questions  of  law  only,  in  accordance  with  Section  20  of 
the  Practice  Act  of  May  14,  1915,  P.  L.  483-486.  This 
was  in  effect  a  demurrer  to  plaintiff's  statement,  and, 
after  hearing  thereon,  the  court  below  filed  an  opinion 
and  entered  judgment  for  the  defendant;  from  which 
plaintiff  took  this  appeal.  The  practice  accords  with 
the  statute  and  the  conclusion  of  the  lower  court  seems 
free  from  error.  Being  a  demurrer,  plaintiff's  statement 
must  be  self-sustaining  and  set  out  a  good  cause  of  ac- 
tion. The  only  claim  here  made  is  on  a  quantum  meruit 
to  recover  for  the  value  of  the  work  as  done,  on  the 
theory  that  the  original  contracts  had  been  abrogated. 
It  is  not  a  suit  for  extra  work,  or  for  extra  pay  because 
of  force  or  double-shift  work,  or  for  damages  for  delay 
caused  by  defendant's  default.  It  ignores  the  original 
contracts,  while  properly  setting  out  copies  therecrf,  and 
sues  for  the  value  of  the  work  as  if  no  price  had  ever 
been  fixed.  This  in  our  opinion  cannot  be  done.  The 
new  arrangement  made  no  change  in  the  work  to  be  done 
or  In  the  price  to  be  paid.    The  case  is  quite  similar 


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246  GRACE  CONTRACTING  CO.,  Appel.,  v.N.&W.RY.CO. 
Opinion  of  the  Court.  [259  Pa. 

to  that  of  McCauley  v.  Keller,  130  Pa.  53,  where  the  con- 
tract for  railroad  construction  specified  second  class 
masonry  and  by  a  new  agreement  first  class  masonry 
was  in  part  to  be  substituted,  "as  dir^ted  by  the  en- 
gineer," and  to  be  paid  for  at  what  it  was  reasonably 
worth.  It  is  there  held  that  the  new  work  must  be 
done  under  the  provisions  of  the  old  contract  and  sub- 
ject to  the  decision  of  the  engineer  as  therein  provided. 
Mr.  Justice  Clark  in  delivering  the  opinion  of  the  court 
says,  "It  was  undoubtedly  competent  for  the  plaintiff, 
by  parol,  to  show  a  new  and  distinct  agreement  subse- 
quent to  the  contract  under  seal,  whereby,  upon  a  new 
consideration,  the  original  agreement  was  changed  and 
the  plaintiffs  agreed  to  perform  additional  work,  or  the 

same  work  in  a  different  manner But,  in  such 

cases,  the  special  contract  will  be  pursued  as  far  as  it 
can  be  traced  in  the  intention  of  the  parties.  The  devia- 
tion, except  where  otherwise  expressed  or  mutually  un- 
derstood, must  be  taken  in  its  proper  connection  with 
the  original  contract,  with  reference  to  and  in  modifica- 
tion of  which  it  was  made It  is  plain,  then,  that 

the  sealed  instrument  must  be  supposed  to  contain  the 
agreem^it  of  the  parties  to  the  full  extent  that  it  has 
not  been  modified  by  the  subsequent  parol  contract,  and 
that  both  taken  together  (the  former  being  subject  to  the 
latter)  state  the  agreement  of  the  parties.  If  there  had 
been  no  provisiim  for  estimates,  etc.,  the  plaintiff  would, 
without  doubt,  have  been  entitled  to  recover  upon  a 
quantum  meruit  whatever  he  could  show  the  work  was 
worth;  but  all  the  work  was  to  be  dcMie  as  directed  by 
the  engineer,  and  was  to  be  paid  for  as  estimated  by  the 
engineer  in  charge  during  the  month.  The  work  cov- 
ered by  the  parol  agreement  was  the  same  work  which 
was  embraced  in  the  special  contract.  It  is  alleged  sim- 
ply that  it  was  to  be  performed  in  a  different  way  if  the 
en^eer  required  it  to  be  so  done,  and  if  the  estimate  of 
the  engineer  was  not  to  determine  its  nature  and  extent 
it  would  doubtless  have  been  so  stated.'^    In  McGrann 


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GRACE  CONTRACTING  CO.,  Appel.,  v.N.&W.RY.CO.  247 
1918.]  Opinion  of  the  Court 

V.  The  North  Lebanon  Railroad  Co.,  29  Pa.  82,  there  was 
a  change  of  location  of  the  railroad,  except  at  the 
termini,  and  it  wag  held  that  the  prices  for  the  grading, 
masonry,  etc.,  remained  under  the  old  contract  and  that 
recovery  could  not  be  had  on  a  quantum  meruit.  There, 
however,  the  right  to  change  the  route  was  specified  in 
the  contract. 

A  new  agreement  will  supersede  the  old  so  far  as  they 
cannot  be  executed  together.  See  EUmaker  v.  Frank- 
lin Fire  Insurance  Co.,  6  W.  &  S.  439;  Prouty  v. 
Kreamer,  199  Pa.  273,  276.  In  the  case  at  bar  plaintiflf 
had  the  right  under  the  original  contracts  to  complete 
the  work  before  the  first  of  December,  so  the  alleged  new 
agreement  to  speed  up  the  work  and  finish  it  at  an 
earlier  date  did  not  confiict  with  the  other;  both  could 
be  executed  together.  The  new  arrangement  referred 
only  to  the  matter  of  speeding  up  and  completion  of  the 
work,  as  to  all  else  the  old  contract  was  not  changed. 
What  plaintiff  did  amounted  to  a  fulfillment  of  the  origi- 
nal contracts.  The  extent  to  which  a  new  contract 
supersedes  the  old  depends  upon  the  nature  of  the  change 
and  the  intention  of  the  parties.  Here  there  is  nothing 
to  indicate  that  any  change  was  intended  except  in  the 
matter  of  time.  In  fact  the  acts  of  the  parties  rebut 
such  intentkm.  The  notices  which  plaintiff  avers  were 
given  defendant,  above  referred  to  as  to  additional  com- 
pensation, show  that  plaintiff  did  not  then  consider  the 
original  contracts  terminated  or  that  the  work  was  be- 
ing done  on  a  quantum  meruit  The  additional  com- 
pensation clearly  referred  to  a  claim  for  pay,  beyond 
that  named  in  the  original  contracts,  because  of  the  speed 
work.  If  the  work  was  to  be  paid  for  at  its  reasonable 
value  as  force  work  when  so  paid  there  would  be  nothing 
more  due  and  there  could  be  no  claim  for  additional  com- 
pensation. Aside  from  that,  as  we  understand  the  facts, 
the  work  was  paid  for  on  monthly  estimates  and  at  the 
price  named  in  the  original  contracts  until  the  end.  Par- 
ties, who  after  making  a  new  contract,  continue  to  act 


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248  GRACE  CONTRACTING  CO.,  Appel.,  v.N.&W.RY.CO. 
Opinion  of  the  Court.  [259  Pa. 

under  the  old  are  bound  by  it,  at  least  so  far  as  they  are 
not  inconsistent.  See  McGrann  v.  The  North  Lebanon 
Bailroad  Co.,  supra.  The  present  suit  is  not  founded  on 
any  estimate  or  award  of  the  chief  engineer,  but  on  the 
theory  that  the  contracts  requiring  such  engineer's  ap- 
proval, as  a  prerequisite  to  a  right  of  action,  were  abro- 
gated by  the  alleged  new  agreement. 

In  the  case  of  Malone  &  Son  y.  Philadelphia  &  Bead- 
ing R.  R.,  157  Pa.  430,  relied  upon  by  plaintiff,  the  facts 
were  different.  That  was  a  contract  for  building  a 
bridge,  enlarging  tunnels,  approaches  thereto,  etc.,  and 
it  was  substantially  changed  by  subsequent  agreement. 
The  manner  of  enlarging  the  tunnel  was  changed  from 
removing  loose  material  at  the  bottom  to  excavation  of 
rock  at  the  top  thereby  greatly  increasing  the  cost,  and 
the  approaches  were  greatly  enlarged.  In  fact  one  part 
of  the  work  was  made  six  times  as  expensive  as  that 
called  for  in  the  original  contract.  There  the  contracts 
could  not  stand  together  and  the  new  was  held  to  sup- 
plant the  old. 

The  parties  to  a  written  contract  may  modify  or  set  it 
aside.  The  question  here  is,  did  they  do  so  and  to  what 
extent?  The  statement  sets  out  copies  of  letters  in  con- 
firmation of  the  alleged  verbal  agreement.  And  while 
they  show  that  plaintiff  promised  to  speed  up  and  double 
shift,  they  do  not  show  an  agreement  on  its  part  to  com- 
plete the  work  at  the  earlier  dates  requested  in  defend- 
ant's letters.  The  legal  effect  of  writings  attached  to 
the  pleadings  is  for  the  court  and  cannot  be  controlled 
by  the  averments  of  the  parties :  Leechburg  Building  & 
Loan  Association  v.  Kinter,  233  Pa.  354.  Letters  ex- 
changed in  confirmation  of  a  verbal  agreement  will  be 
presumed  to  correctly  state  it,  especially  where  they  are 
retained  without  objection.  Plaintiff's  original  bid 
refers  to  double  shift  as  one  of  its  methods  of  work ;  and 
the  contracts  authorize  the  chief  engineer  to  speed  up 
the  work,  but  not  to  require  its  completion  before  the 
time  specified. 


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GRACE  CONTRACTING  CO.,  Appel.,  v.N.&W.RY.CO.  249 
1918.]  Opinion  of  the  Court. 

Bids  were  submitted  and  the  contracts  made  on  de- 
fendant's estimates  purporting  to  give  the  approximate 
amounts,  and  the  work  somewhat  exceeded  the  estimates. 
But  as  plaintiff  was  paid  by  the  yard  such  excess  could 
afford  no  ground  for  a  quantum  meruit  claim,  especially 
as  the  estimates  were  made  in  good  faith  and  did  not 
purport  to  be  'accurate.  In  general  such  estimates  are 
only  approximate :  Coal  &  Iron  Ry.  Co.  v.  Reherd,  204 
Fed.  Rep.  859.  Plaintiff  also  avers  that  it  was  delayed 
approximately  three  weeks  on  one  of  the  sections  by  de- 
fendant's dilatoriness  in  furnishing  rails  pui*suant  to  an 
independent  verbal  agreement  made  subsequent  to  the 
main  contracts.  But  that  is  given  as  a  reason  for  delay 
and  not  as  a  separate  claim.  The  price  for  every  item 
of  work  done  was  fixed  by  the  contracts  and  in  our  opin- 
ion was  not  changed  or  set  aside  and  therefore  there  is 
no  basis  for  a  recovery  of  what  the  work  may  have  been 
reasonably  worth,  and  that  is  the  only  claim  made. 

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


Commonwealth  v.  Wooley,  Appellant 

Orimindl  law — Murder — Voluntary  manslaughter  —  Involuntary 
manslaughter — Charge-^Conflicting  instructions  —  Erroneous  in- 
structions— Pointing  gun  to  frighten — Evidence — Self-defense — 
Scope  of  direct  examination  of  defendant — New  trial. 

1.  Where  the  plea  to  an  indictment  for  murder  is  that  defendant 
was  acting  in  self-defense,  it  is  reversible  error  to  refuse  to  permit 
the  defendant,  while  being  examined  as  a  witness  in  his  own  be- 
half, to  be  asked  whether  at  the  time  he  fired  the  shot  he  thought 
he  was  in  peril  of  his  life  or  of  great  bodily  harm.  The  weight  to 
be  accorded  such  testimony  is  for  the  jury. 

2.  In  such  case  the  trial  judge  erred  in  refusing  to  correct  such 
error  on  the  groimd  that,  in  his  judgment,  there  had  been  developed 
on  the  cross-examination  of  the  defendant  what  would  have  been 
an  affirmative  answer  to  the  disallowed  question,  where  it  appeared 
that  in  no  one  of  defendant's  answers  to  the  questions  put  to  him 
by  the.  district  attorney  did  he  say  that,  when  he  shot  deceased,  he 


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250       COMMONWEALTH  v.  WOOLEY,  Appellant. 

Syllabus — ^Arguments.  [259  Pa. 

thought  he  was  in  peril  of  his  life  or  of  great  bodily  harm.  His 
mere  admission  that  he  was  in  fear  is  not  the  equivalent  of  his 
imqualified  declaration  that  he  had  acted  in  self-defense  because 
he  thought  that  he  was  in  peril  of  his  life  or  of  great  bodily  harm. 

3.  Where  correct  and  erroneous  instructions  are  given  in  a  charge 
it  is  not  to  be  conjectured,  especially  in  a  capital  case,  which  the 
jury  followed. 

4.  On  the  trial  of  an  indictment  for  murder  where  defendant 
testified  that  when  he  took  the  gun  into  his  hands  he  was  under 
the  impression  that  it  was  unloaded  and  that  his  intention  was  to 
use  it  to  frighten  the  deceased  away,  the  error  committed  in  charg- 
ing that  if  such  were  the  honest  belief  and  purpose  of  the  defend- 
ant he  would  be  guilty  of  voluntary  manslaughter,  the  trial  judge 
inadvertently  using  the  word  'Voluntary''  instead  of  "involuntary," 
is  not  cured  by  the  fact  that  the  court  had  in  a  previous  part  of  the 
charge  carefully  distinguished  betwemi  the  two  grades;  and  where 
in  such  case  a  conviction  of  voluntary  manslaughter  followed,  a 
new  trial  was  awarded. 

Argued  Oct.  15,  1917.  Appeal,  No.  9,  Oct.  T.,  1917, 
by  defendant,  from  sentence  of  O.  &  T.  Bradford  Co., 
Sept  T.,  1916,  No.  1,  on  verdict  of  guilty  of  voluntary 
manslaughter  in  case  of  Commonwealth  v.  George 
Mitchell  Wooley.  Before  Brown,  C.  J.,  Pottbb,  Mosch- 
ziSKBB,  Frazer  and  Walung,  JJ.     Reversed. 

Indictment  for  murder.    Before  Maxwell,  P.  J. 
The  facts  appear  by  the  opinion  of  the  Supreme  Court. 
Verdict  of  guilty  of  voluntary  manslaughter  upon 
which  sentence  was  passed.    Defendant  appealed. 

Errors  assigned^  among  others,  were  various  rulings 
on  evidence  and  the  charge  of  the  court. 

William  G.  Schrier,  with  him  Charles  E.  Mills,  for  ap- 
pellant.— It  is  reversible  error  to  refuse  to  permit  the 
defendant  on  trial  for  murder  to  be  asked  on  direct- 
examination  whether  at  the  time  he  fired  the  shot  h6 
thought  he  was  in  peril  of  his  life  or  of  great  bodily 
harm:  Commonwealth  v.  Garanchoskie,  251  Pa.  247; 
Eunyan  v.  The  State,  57  Ind.  80;  West  v.  The  State,  59 


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COMMONWEALTH  v.  WOOLEY,  Appellant.       251 
1918.]  Aigumenta — Opinion  of  the  Court. 

Ind.  113;  Commonwealth  v.  Woodward,  102  Mass.  155; 
Wallace  v.  United  States,  162  U.  S.  Repr.  466. 

An  error  committed  by  the  court  in  charging  that  if 
defendant  drew  the  gun  thinking  it  was  empty,  for  the 
purpose  merely  of  frightening  deceased,  and  shot  and 
killed  the  deceased,  he  would  be  guilty  only  of  voluntary 
manslaughter,  inadvertently  using  the  word  "voluntary'' 
instead  of  "involuntary,''  is  not  remedied  by  a  correct 
statement  of  the  distinction  between  voluntary  and  in- 
voluntary manslaughter  in  another  part  of  the  charge: 
Selin  V-  Snyder,  11  S.  &  R.  319;  Gearing  v.  Lacher,  146 
Pa,  397;  Baker  v.  Hagey,  177  Pa.  128;  Commonwealth 
V.  Deitrick,  221  Pa,  7;  Commonwealth  v.  Greene,  227 
Pa.  86. 

David  J.  Fanning,  District  Attorney,  for  appellee. 

Opinion  by  Mb.  Chief  Justice  Beown,  January  7, 
1918: 

The  appellant  was  convicted  in  the  court  below  of  vol- 
untary manslaughter  on  an  indictment  charging  him 
with  murder.  His  plea  was  that  he  was  acting  in  self- 
defense,  under  circumstances  which  made  him  believe 
that  his  life  was  in  danger,  or  that  he  was  about  to  suffer 
great  bodily  harm,  and  that  to  save  his  life  or  avoid  such 
harm  he  shot  the  deceased.  While  he  was  being  ex- 
amined as  a  witness  in  his  own  behalf,  he  was  asked  the 
following  question :  **At  the  time  you  fired  this  shot  will 
you  state  to  the  court  and  jury  whether  or  not  you 
thought  you  were  in  peril  of  your  life,  or  of  great  bodily 
harm?"  This  was  disallowed,  and  its  disallowance  is 
the  subject  of  the  first  assignment  of  error. 

The  api)ellant  was  a  competent  witness  for  himself, 
and  the  question  which  he  was  not  permitted  to  answer 
bore  directly  upon  the  defense  he  was  making.  He 
alone,  of  allthe  witnesses  called  by  him,  could  testify  as 
to  whether  he  really  thought  he  was  in  peril  of  his  life 
or  of  great  bodily  harm,  and  no  testimony  could  have 


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252       COMMONWEALTH  v.  WOOLEY,  Appellant. 

Opinion  of  the  Court  [269  Pa, 

been  more  competent  than  his  own  as  to  his  belief  that 
he  was  in  such  danger.  What  credit  was  to  be  given  to 
him  was  for  the  jury  under  all  the  circumstances  sur- 
rounding the  homicide,  and  it  is  to  be  remembered  that 
they  might  fairly  have  inferred  to  his  prejudice  that  he 
had  not  been  in  fear  of  bodily  harm  if  he  had  failed  to 
so  testify.  The  refusal  to  permit  him  to  do  so  was  clear 
error:  Commonwealth  v.  Qaranchoskie,  251  Pa.  247; 
Wallace  v.  United  States,  162  U.  S.  Rep.  466;  Common- 
wealth V.  Woodward,  102  Mass.  155;  Batten  v.  The 
State,  80  Ind.  394;  Taylor  v.  The  People,  21  Colo.  426; 
Elliott  on  Evidence,  Vol.  4,  Sec.  3041.  In  his  opinion 
refusing  a  new  trial  the  trial  judge  admitted  this  error, 
but  refused  to  correct  it,  because,  in  his  judgment,  there 
had  been  developed  on  the  cross-examination  of  the  de- 
fendant what  would  have  been  an  affirmative  answer  to 
the  disallowed  question.  This  was  not  so.  In  no  one  of 
his  answers  to  the  questions  put  to  him  by  the  district 
attorney  does  he  say  that,  when  he  shot  the  deceased,  he 
thought  he  was  in  peril  of  his  life  or  of  great  bodily 
harm,  and  it  was  not  judicially  frank  or  fair  to  hold  that 
his  mere  admission  that  he  was  scared  and  in  fear  was 
the  equivalent  of  his  unqualified  declaration  that  he  had 
acted  in  self-defense  because  he  thought  he  was  in  peril 
of  his  life  or  of  great  bodily  harm.  The  first  assignment 
of  error  is  sustained. 

The  defendant  testified  that,  when  he  took  the  gun  in 
his  hands,  he  was  under  the  impression  it  was  not  loaded, 
and  that  his  intention  was  to  use  it  to  frighten  the  de- 
ceased away.  In  commenting  upon  this  testimony  the 
following  instruction  was  given  to  the  jury  and  is  the 
basis  of  the  second  assignment :  "Now  we  will  say  right 
here,  for  fear  we  may  forget  it,  if,  under  all  the  circum- 
stances of  this  case,  if  you  find  in  the  testimony  that 
this  defendant  honestly  and  in  good  faith  believed  this 
gun  was  empty,  and  he  took  it  out  there  simply  for  the 
purpose  of  frightening  this  man  away  by  its  appearance, 
and  had  no  intention  in  his  mind  at  the  time,  of  shooting 


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COMMONWEALTH  v,  WOOLEY,  AppeUant.        253 
1918.]  Opinion  of  the  Court. 

him,  and  he  drew  up  the  gun  in  the  manner  in  which  he 
described,  for  the  purpose  of  frightening  him,  not  know- 
ing it  was  loaded,  and  he  shot  and  killed  this  man,  we 
think  that  he  would  be  guilty  of  only  voluntary  man- 
slaughter, if  you  find  that  under  the  evidence  in  this 
case."  This  palpable  error  is  also  admitted  in  the  opin- 
ion refusing  a  new  trial,  the  trial  judge  saying:  "We, 
inadvertently,  in  charging  the  jury,  in  that  part  of  the 
charge  quoted  and  assigned  as  error,  used  the  word  *vol- 
untary'  where  we  intended  to  use  the  word  involuntary.'' 
He  then  adds :  'The  jury  certainly  could  not  have  been 
misled  by  this  slip,  for  the  reason  that  we  just  previously 
instructed  them,  carefully,  as  to  manslaughter,  and  de- 
fined and  distinguished  between  the  two  grades."  The 
defendant  was  convicted  of  voluntary  manslaughter, 
and  it  is  most  fairly  argued  that  he  may  have  been  so 
convicted  under  the  instruction  complained  of  by  the 
second  assignment,  which  ought  to  have  been  that  he  was 
entitled  to  an  acquittal  on  the  indictment,  if  the  jury 
believe  his  version  of  the  shooting.  Whatever  proper  in- 
structions may  have  been  given  in  other  parts  of  the 
charge,  they  did  not  cure  the  palpable  misdirection 
which  the  jury  may  have  r^arded  as  what  the  trial  judge 
intended  to  be  a  correct  instruction  to  them,  for  there 
was  nothing  doubtful  or  ambiguous  in  it.  In  attempt- 
ing to  justify  himself  in  failing  to  correct  his  error,  on 
the  motion  for  a  new  trial,  the  trial  judge  utterly  ignored 
the  oft-repeated  rule  that,  where  correct  and  erroneous 
instructions  are  given  in  a  charge,  it  is  not  to  be  conjec- 
tured, especially  in  a  capital  case,  which  the  jury  fol- 
lowed. It  is  enough  to  know  that  they  may  have  fol- 
lowed the  erroneous  ones  on  a  point  vital  to  the  defend- 
ant: Commonwealth  v.  Gerade,  145  Pa.  289;  Common- 
wealth V.  Deitrick,  221  Pa.  7;  Commonwealth  v.  Greene, 
227  Pa.  86.  The  second  assignment  of  error  is  also  sus- 
tained and  the  judgment  reversed  with  a  venire  facias 
de  novo. 


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254      SHERWOOD'S  INVESTIGATION,  Appellant. 

Syllabus.  [259  Pa. 

Re  Investigation  of  Paul  J,  Sherwood,  Appellant 

Attorneys — Improper  conduct — Breach  of  fidelity  to  court — Mia- 
behavior  in  office — Charge  of  prejudice  against  judges — Remarks 
in  argument  in  Federal  Court  for  removal  of  cause  from  Common 
Pleas  Court — Privtlege-~Constiiution  of  United  States,  Sec.  ^,  Art. 
III-^Act  of  Congress  of  March  8, 1911. 

1.  A  court  has  power  to  strike  the  name  of  a  member  of  the  bar 
from  the  roll  for  official  misconduct  in  or  out  of  courts  irrespective 
of  where  the  misconduct  occurs.  A  state  court  may  disbar  one  of 
its  attom^s  for  misconduct  committed  in  a  Federal  Court  or  in 
any  other  state  court. 

2.  The  purpose  of  Art.  HI,  Sec.  2  of  the  Constitution  of  the 
United  States  extending  to  the  Federal  courts  jurisdiction  in  con- 
troyersies  between  citizens  of  different  states,  was  to  secure  for 
controversies  between  citizens  of  different  states  a  tribimal  inde- 
pendent of  local  influences  and  surroundings,  whether  the  ques- 
tions for  determination  are  of  fact  or  law,  and  it  was  in  pursuance 
of  such  purpose  that  the  Act  of  Congress  of  Karch  8,  1911,  86 
Stat.  1094,  was  passed,  providing  that  a  defendant  in  a  suit  in  a 
state  court  may  remove  it  to  the  proper  Federal  court  at  any  time 
before  the  trial  thereof,  if  it  shall  appear  to  said  court  that  he  will 
not,  from  prejudice  and  local  influence,  be  able  to  obtain  justice 
in  the  state  court 

8.  The  right  of  removal  from  a  state  court,  on  the  ground  of 
local  prejudice,  is  not  confined  to  prejudices  which  may  affect  a 
jury  but  extends  to  those  which  may  influence  a  judge. 

4.  The  test  as  to  whether  remarks  made  by  an  attorney  in 
derogation  of  the  judges  of  a  Common  Pleas  Court  during  the 
course  of  an  argument  for  the  removal  of  a  cause  to  the  Federal 
courts  on  the  ground  of  local  prejudice,  constitute  misbehavior  in 
his  office  as  attorney  is  not  whether  the  words  spoken  are  true,  but 
whether  they  were  spoken  in  the  course  of  a  judicial  proceeding 
and  were  relevant  or  pertinent  to  the  subject  or  cause  of  inquiry. 

5.  A  statement  made  by  a  member  of  the  Luzerne  County  Bar 
in  the  United  States  District  Court  during  the  course  of  an  argu- 
ment in  support  of  a  rule  to  remand  to  the  former  court  a  cause 
which  had  been  removed  to  the  district  court,  to  the  effect  that  "the 
five  judges  of  the  Luzerne  court  are  so  prejudiced  that  Stough  (the 
defendant)  could  not  get  a  fair  trial  in  our  courts,"  was  privileged, 
since  the  Act  of  Congress  required  his  client  to  show  that  prejudice 
existed  in  order  that  the  cause  be  removed,  and  what  was  said  was 


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SHERWOOD'S  INVESTIGATION,  AppeUant.      255 

1918.]  Syllabus— Aiguments. 

Televant  and  pertinent  to  the  subject  of  the  inquiry  and  was  sup- 
ported by  affidavits;  and  an  order  suspending  such  attorney  from 
office  for  six  months  was  reversed. 

Argued  April  9, 1917.  Appeal,  No.  287,  Jan.  T.,  1916, 
by  respondent,  from  order  of  C.  P.  Luzerne  Co.,  May  T., 
1916,  No.  281,  striking  defendant's  name  from  record  as 
an  attorney  for  a  period  of  six  months  in  re  Investiga- 
tion of  certain  statements  alleged*to  have  been  made  by 
Paul  J.  Sherwood,  Esq.,  a  member  of  the  Luzerne  Coun- 
ty Bar.  Before  Brown,  C.  J.,  Mbstebzat,  Pottbe,  Fra- 
ZBR  and  Walling,  J  J.    Reversed. 

Bule  to  show  cause  why  respondent  should  not  be  re- 
moved from  the  office  of  attorney  for  breach  of  fidelity 
to  the  court  and  misbehavior  in  office.  Before  Barber, 
P.  J.,  specially  presiding. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

The  lower  court  made  an  order  suspending  respondent 
from  office  for  a  period  of  six  months.  Respondent  ap- 
pealed. 

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

James  Scarlet  and  R.  W.  Archhald,  for  appellant. — It 
is  the  motive  that  makes  an  invasion  of  the  judges'  rights 
a  breach  of  professional  fidelity :  Ex  parte  Steinman  & 
Hensel,  95  Pa.  220. 

The  words  alleged  to  have  been  spoken  by  the  respond- 
ent were  privileged:  Hoar  v.  Ward,  3d  Met.  (Mass.) 
193;  Detroit  City  v.  Detroit  City  Ry.  Co.,  54  Fed.  Repr. 
1;  Ellison  v.  Louisville  &  N.  R.  Co.,  112  Fed.  Repr.  805; 
Johnson  v.  State,  112  S.  W.  Repr.  143 ;  Moses  v.  Julian, 
45  N.  H.  52. 

Evan  C  Jones,  amicus  curiae,  with  him  John  R.  Hal- 
sey,  Anthony  L.  Williams  and  Edwin  Shortz,  8r.,  Board 
of  Censors  Law  and  Library  Association,  for  appellee. — 


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256      SHERWOOD'S  INVESTIGATION,  AppeUant. 

Argmnentfi — Opinion  of  the  Court  [269  Pa. 

Courts  have  jurisdiction  and  power  upon  their  own  mo- 
tion without  formal  complaint  or  petition^  in  a  proper 
case  to  strike  the  name  of  an  attorney  from  the  roll,  pro- 
vided he  has  had  reasonable  notice  and  opportunity  to 
be  heard:  Ex  parte  Steinman  and  Hensel,  95  Pa.  220; 
Smith's  App.,  179  Pa.  14;  Scouten's  App.,  186  Pa.  270. 

Opinion  by  Mb.  Chibp  Justice  Brown,  January  7, 
1918: 

In  June,  1914,  Henry  W.  Stough,  a  citizen  of  the  State 
of  Illinois,  and  a  peripatetic  evangelist,  conducted  a 
series  of  lai^ly-attended  public  meetings  in  the  City  of 
Hazleton,  this  State.  In  the  course  of  his  addresses  or 
sermons  he  referred  to  four  residents  of  the  city  in  terms 
regarded  by  them  as  slanderous,  and  each  one  of  them 
brought  an  action  against  him  in  the  court  below.  In 
March,  1916,  he  presented  his  petitions  to  the  United 
States  District  Court  for  the  Middle  District  of  Penn- 
sylvania, setting  forth  that,  from  prejudice  and  local  in- 
fluence in  favor  of  each  of  the  plaintiffs  in  said  actions, 
and  adverse  to  him,  he  would  not  be  able  to  obtain  jus- 
tice in  the  court  below,  or  any  other  court  in  the  State 
to  which  he  might,  under  its  laws,  have  a  right  to  remove 
the  said  causes  of  action,  on  account  of  said  prejudice 
and  local  influence;  and  the  prayer  of  each  petition  was 
for  an  order  removing  the  cause  to  which  it  referred 
from  the  Court  of  Common  Pleas  to  the  Federal  court. 
These  petitions  were  presented  under  the  provisions  of 
Section  28  of  the  Judicial  Code  of  the  United  States,  Act 
of  March  3,  1911,  c.  231,  36  Stat,  at  L.  1094,  which  are 
in  part  as  follows :  *^Any  defendant,  being  such  citizen 
of  another  state,  may  remove  such  suit  into  the  District 
Court  of  the  United  States  for  the  proper  district  at  any 
time  before  the  trial  thereof,  when  it  shall  be  made  to 
appear  to  said  District  court  that,  from  prejudice  and 
local  influence,  he  will  not  be  able  to  obtain  justice  in 
such  State  court."  '*And  at  any  time  before  the  trial  of 
any  suit,  which  is  now  pending  in  any  District  court,  or 


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SHERWOOD'S  INVESTIGATION,  Appellant.      257 
1918.]  Opinion  of  the  Court. 

may  hereafter  be  entered  therein,  and  which  has  been 
removed  to  said  court  from  a  State  court,  on  the  affidavit 
of  any  party  plaintiff  that  he  had  reason  to  believe  and 
did  believe  that,  from  prejudice  or  local  influence,  he 
was  unable  to  obtain  justice,  in  said  State  court,  the  Dis- 
trict court  shall,  upon  the  application,  examine  into  the 
truth  of  said  affidavit,  and  the  grounds  thereof;  and 
unless  it  shall  appear  to  the  satisfaction  of  said  court 
that  said  party  will  not  be  able  to  obtain  justice  from 
said  State  court,  it  shall  cause  the  same  to  be  remanded 
thereto."  Writs  of  certiorari  were  allowed  by  the 
United  States  District  Court,  and  the  records  of  the  four 
actions  brought  against  Stough  in  the  Court  of  Common 
Pleas  of  Luzerne  County  were  removed  to  the  Federal 
court.  After  such  removal  and  before  trial  of  the 
causes,  counsel  for  three  of  the  plaintiffs  moved  the  court 
to  remand  them  to  the  Court  of  Common  Pleas.  Upon 
argument  of  these  motions  before  the  United  States  Dis- 
trict Court,  Paul  J.  Sherwood,  Esq.,  a  member  of  the 
Luzerne  County  bar,  who  had  appeared  in  the  local 
court  as  counsel  for  Stough,  was  alleged  to  have  said, 
"the  five  judges  of  the  Luzerne  court  are  so  prejudiced 
that  Stough  could  not  get  a  fair  trial  in  our  courts." 
This  alleged  statement  having  been  brought  to  the  atten- 
tion of  the  judges  of  the  Court  of  Common  Pleas  of 
Luzerne  County,  Evan  C.  Jones,  Esq.,  a  member  of  the 
bar  of  that  court,  was  appointed  amicus  curiae  to  make 
Investigation  and  report.  He  reported  that,  upon  in- 
formation given  him  by  three  reputable  persons,  worthy 
of  credence,  the  said  Sherwood,  who  appeared  as  counsel 
for  Stough  in  the  United  States  court,  had  stated  on 
March  27,  1916,  during  the  argument  upon  the  motions 
to  remand,  before  Hon.  C.  B.  Witmer,  judge  of  the 
United  States  court,  in  substance,  ^*The  five  judges  of 
the  Luzerne  court  are  so  prejudiced  that  Stough  could 
not  get  a  fair  trial  in  our  courts.'*  Thereupon  a  rule 
was  granted  on  the  appellant  to  show  cause  why  he 
should  not  be  removed  from  his  office  of  attorney,  for 
Vol.  ccLix — 17  t 


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258      SHERWOOD'S  INVESTIGATION,  AppeUant. 

Opinion  of  the  Court.  [259  Pa. 

breach  of  fidelity  to  the  court  and  for  misbehavior  in  his 
said  office.  An  answer  was  filed  to  this  rule  and  much 
testimony  was  taken  before  the  President  Judge  of  the 
Fifty-sixth  Judicial  District,  specially  presiding.  After 
a  patient  hearing  he  found  that  the  appellant  had  used 
the  language  upon  which  the  rule  to  show  cause  was 
granted,  and  adjudged  him  guilty  of  breach  of  fidelity  to 
the  court  and  of  misbehayior  in  his  office  of  attorney. 
This  was  followed  by  an  order  suspending  him  from  such 
office  for  a  period  of  six  months.  From  that  order  there 
has  come  his  appeal. 

The  misconduct  charged  against  the  appellant,  and 
for  which  he  was  disciplined,  was  not  for  contempt  of 
the  court  below,  committed  in  another  court,  and  the 
question  before  us  is  not  as  to  jurisdiction  over  alleged 
contempt  there  committed.  He  was  charged  and  found 
guilty  of  a  breach  of  fidelity  to  the  court  below  and  of 
misbehavior  in  his  office  as  one  of  its  attorneys.  If  he 
was  guilty  of  either  or  both  of  these  offenses,  it  had  un- 
doubted jurisdiction  of  the  proceeding  instituted  against 
him,  no  matter  where  he  offended.  When  he  presented 
himself  to  the  court  below  for  admissicm  to  the  bar,  he 
made  solemn  oath,  as  required  by  the  statute,  that  he 
would  behave  himself  in  his  office  as  attorney  within  it 
with  all  due  fidelity  to  it.  This  obligation  was  upon 
him  in  the  United  States  court  when  he  uttered  the 
words  which  led  to  the  charges  against  him.  He  was 
there  and  then  acting  as  an  attorney-at-law,  in  connec- 
tion with  proceedings  which  had  been  instituted  in  the 
Court  of  Common  Pleas  of  Luzerne  County,  and  in  which 
he  had  appeared  for  the  defendant ;  and  the  correct  con- 
clusion of  the  learned  judge  below  was  that  it  was  im- 
possible to  sever  his  conduct  from  his  professional  rela- 
tion to  the  court  in  which  the  suits  against  Stough  had 
been  brought  "All  of  the  acts  of  the  respondent  which 
gave  rise  to  the  charges  against  him,  were  committed  in 

conducting  his  legal  business  as  an  attorney 

From  the  very  nature  of  his  office,  and  its  relation  to  the 


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SHERWOOD'S  INVESTIGATION,  Appellant.      259 
1918.]  Opinion  of  the  Court. 

public  and  the  court,  a  lawyer  who  enters  at  his  own 
solicitation  by  the  front  door  subjects  himself  to  ejection 
by  the  back  one,  if  he  do  not  ^have  himself  welP  ^^ : 
Smith's  App.,  17^  Pa.  14 ;  and  ^*no  question  can  be  made 
of  the  power  of  a  court  to  strike  k  member  of  the  bar 
from  the  roll  for  ofBcial  misconduct  in  or  out  of  court" : 
Ex  parte  Steinman  and  Hensel,  95  Pa.  220.  "It  is  un- 
important as  affecting  the  right  and  duty  of  the  court  in 
the  premises  where  the  misconduct  of  the  attorney  oc- 
cui-s" :  Fell,  C.  J.,  in  In  re  Grafflus,  241  Pa.  222.  "A 
state  court  may  therefore  disbar  one  of  its  attorneys  for 
misconduct  committed  in  a  Federal  court,  or  in  any 
other  state" :  People  v.  Green,  9  Colo.  527 ;  Thornton  on 
Attorneys,  Sec.  770.  The  jurisdiction  of  the  court  being 
clear,  the  only  question  for  consideration  now  is  whether 
what  was  charged  and  clearly  proven  against  the  re- 
spondent constituted  a  breach  of  fidelity  to  it  and  misbe- 
havior by  him  in  his  office  as  one  of  its  attorneys. 

By  Section  2,  Article  III,  of  the  Constitution  of  the 
United  States,  the  jurisdiction  of  the  Federal  courts  is 
extended  to  all  controversies  in  law  and  equity  between 
citizens  of  different  states.  The  manifest  reason  for  this 
provision  was  apprehension  by  the  framers  of  the  Con- 
stitution that  prejudice  or  local  influence  might  opemte 
in  the  courts  of  one  state  against  a  citizen  of  another, 
and  its  purpose  is  to  secure  for  controversies  between 
citizens  of  different  states  a  tribunal  independent  of 
local  influences  and  surroundings,  whether  the  questions 
for  determination  are  of  fact  or  law.  In  pursuance  of 
it  the  Act  of  Congress  of  March  3, 1911,  was  passed,  pro- 
viding that  a  defendant  in  a  suit  in  a  state  court  may 
remove  it  to  the  proper  Federal  court  at  any  time  before 
the  trial  thereof,  if  it  shall  appear  to  said  court  that  he 
will  not,  from  prejudice  and  local  influence,  be  able  to 
obtain  justice  in  the  state  court.  The  right  of  removal 
to  a  Federal  court,  on  the  ground  of  local  prejudice,  is 
not  confined  to  prejudices  which  may  aflfect  a  jury,  but 
extends  to  those  which  may  influence  a  judge :  City  of 


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260      SHERWOOD'S  INVr.STIGATION,  AppeUant. 

Opinion  of  the  Court  [259  Pa. 

Detroit  v.  Detroit  City  Ry.  Co.,  54  Fed.  Rep.  1 ;  EUiron 
V.  Louisville  &  N.  R.  Co.,  112  Fed.  Rep.  805. 

The  learned  judge  below  correctly  said :  "Thfe  single 
issue  in  this  case  is  whether  the  respondent  made  use  of 
certain  words  in  his  argument  in  the  District  court.^ 
If  he  was  to  be  adjudged  guilty  of  misbehavior  in  his 
ofBce  as  an  attorney,  it  was  because  he  there  used  those 
words.  However  unseemly  his  conduct  may  have  been 
in  and  out  of  court  in  connection  with  his  answer  to  the 
rule  taken  upon  him,  the  sole  questions  before  the  court 
were,  Did  he  use,  in  the  Federal  court,  the  words 
charged  against  him,  and,  if  he  did,  was  his  utterance  of 
them  misbehavior  in  his  office  as  an  attorney?  Noth- 
ing else  was  to  be  considered  by  the  court  below,  and 
there  is  nothing  else  for  our  consideration.  It  found, 
upon  all  sufficient  evidence,  that  the  appellant  had,  on 
March  27, 1916,  said  in  the  District  Court  of  the  United 
States  at  Scranton,  "The  five  judges  of  the  Luzerne  court 
are  so  prejudiced  that  Stough  could  not  get  a  fair  trial 
in  our  courts."  Were  these  words,  under. the  circum* 
stances,  privileged?  If  they  were,  the  appellant  was  not 
technically  guilty  of  misbehavior  in  his  office  as  an  at- 
torney. His  bad  taste  in  using  them  is  not  the  question 
in  the  case.  His  professional  brethren  may  justly  re- 
gard him  guilty  of  that  offense,  but  his  loss  of  their  re- 
spect is  the  only  penalty  for  it,  if  the  language  used  was 
privileged  under  the  law. 

The  test  of  the  appellant's  privilege  is  not  whether  the 
words  spoken  were  true,  but  whether  they  were  spoken 
in  the  course  of  a  judicial  proceeding  and  were  relevant  or 
pertinent  to  the  subject  or  cause  of  the  inquiry :  Hoar 
V.  Wood,  3  Met.  193.  The  right  of  Stough  to  remove  to 
the  United  States  courts  the  suits  brought  against  him 
in  the  Common  Pleas  of  Luzerne  County  was  purely 
statutory,  and  the  condition  of  the  act  of  congress  upon 
which  he  could  remove  them  was  that  he  should  make  it 
appear  to  the  Federal  court  that,  from  prejudice  and 
local  influence,  he  would  not  bo  able  to  obtain  justice  in 


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SHERWOOD^S  INVESTIGATION,  AppeUant.      261 
1918.]  Opinion  of  the  Court. 

the  State  court  In  hig  petitions  to  the  United  States 
court,  asking  for  the  removal  of  the  suits  to  it,  he  averred 
that,  from  prejudice  and  local  influence  in  favor  of  the 
plaintiffis  and  adverse  to  him,  he  would  not  be  able  to 
obtain  justice  in  the  courts  of  Luzerne  County,  or  in  any 
other  State  court  to  which  he  might,  under  the  laws  of 
the  State,  have  a  right  to  remove  the  same  on  account  of 
such  prejudice  or  local  influence.  This  petition  was 
supported  by  two  affidavits,  and  the  suits  were  removed 
to  the  Federal  court  Subsequently  the  respective  plain- 
tiffs moved  to  remand  them  to  the  State  court,  and,  in 
opposition  to  this,  affidavits  of  residents  of  Luzerne 
County  were  filed,  with  the  court's  permission,  charging 
such  prejudice  and  local  influence  against  the  defendant 
as  would  make  it  impossible  for  him  to  obtain  justice  in 
the  State  court ;  and  these  affidavits,  in  effect,  charged 
that  the  prejudice  or  local  influence  extended  to  the 
judges  of  the  Court  of  Common  Pleas.  This  was  the 
situation  in  the  Federal  court  when  the  appellant  used 
the  language  for  which  the  court  below  found  him  guilty 
of  m»behavior  in  his  office  as  an  attorney.  As  already 
stated,  prejudice  and  local  influence,  within  the  contem- 
plation of  the  act  of  congress,  are  such  as  affect  judges 
as  well  as  jurors,  and  we  are,  therefore,  constrained  to 
hold  that,  in  view  of  the  averment  in  the  petition  to  re- 
move the  suits  to  the  Federal  court,  and  of  what  ap- 
peared in  the  affidavits  filed  in  opposition  to  the  motions 
to  remand  them,  the  appellant  was  privileged  in  saying 
what  he  did  in  resisting  the  effort  to  have  the  suits 
against  his  client  remanded.  He  was  charging,  with 
affidavits  apparently  supporting  him,  what  the  act  of 
congress  required  his  client  to  show,  if  the  suits  were  to 
remain  in  the  United  States  court.  What  he  said  was 
spoken  in  the  course  of  a  judicial  proceeding,  and  was 
relevant  and  pertinent  to  the  subject  or  cause  of  the  in- 
quiry. The  rule  taken  against  him  was  for  certain  lan- 
guage used  by  him  in  the  Federal  court,  and  for  nothing 
else,  and,  on  his  appeal  from  the  order  suspending  him 


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262      SHERWOOD'S  INVESTIGATION,  Appellant. 

Opinion  of  the  Court.  [269  Pa. 

tvom  his  office  as  an  attorney,  we  must  confine  ourselves 
to  it  Being  of  opinion,  for  the  reason  just  given,  that 
the  appellant  was  within  his  privilege  in  making  a  dis- 
respectful criticism  of  the  learned  and  upright  court 
below,  the  order  from  which  he  has  appealed  must  be 
reversed. 

Decree  reversed,  the  costs  below  and  on  this  appeal  to 
be  paid  by  the  County  of  Luzerne. 


Clark  V.  Butler  Junction  Coal  Company,  Appel- 
lant. 

Negligence — Master  and  servant — Mines  and  mining — Damages 
— Measure  of  damages — Evidence — Character  of  treatment  for  tn- 
juries—^ross'Bxamvnation  of  plaintiff, 

1.  In  an  action  for  personal  injuries,  where  it  appears  that,  at 
the  time  of  the  accident*  plaintiff  was  engaged  in  an  occupation 
yielding  him  a  low  wage,  it  is  nevertheless  competent  for  him  to 
prove  that  he  is  skilled  at  other  occupations  paying  a  higher  wage, 
especially  where  it  appears  that  his  inability  to  pursue  a  more 
profitable  occupation  at  the  time  of  the  injury  was  due  to  a  tempo- 
rary condition  in  the  financial  and  industrial  world. 

2.  In  such  case,  however,  it  was  error  \A  permit  the  plaintiff  to 
express  a  guess  as  to  what  wages  he  could  earn  at  the  more  profita- 
ble occupation,  in  the  absence  of  evidence  as  to  the  general  wage 
scale  for  such  labor  or  that  the  witness  was  distinguished  by  su- 
perior capacity  over  others  in  his  class  of  employment.    ' 

3.  Where  in  an  action  for  personal  injuries  the  plaintiff  testifies 
as  to  the  extent  and  character  of  bis  injuries  and  the  pain  and 
suffering  he  endured,  the  defendant  is  entitled  to  cross-examine 
him  as  to  what  he  did  or  failed  to  do  in  order  to  obtain  relief  and  im- 
provement, and  it  is  error  for  the  court  to  refuse  to  allow  plaintiff 
to  be  cross-examined  with  respect  to  the  medical  and  surgical  treat- 
ment he  received,  if  any,  immediately  following  the  injury. 

4.  Where  in  an  action  against  a  coal  mining  company  the  negli- 
gence charged  was  in  allowing  an  uncovered  hole  to  be  in  the  path 
of  an  employee  whose  daily  task  was  to  push  loaded  cars  over  the 
hole,  it  was  no  part  of  the  plaintiff's  case  to  show  thdt  the  main- 
tenance of  such  hole  was  exceptional,  and  out  of  the  usual  custom 


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CLARK  V.  BUTLER  JUNCTION  COAL  CO.,  Appel.  263 
1918.]  Syllabus— Opinion  of  the  Court, 

of  the  operation  of  coal  mines,  and  an  objection  to  the  admission 
of  such  evidence,  should  have  been  sustained. 

Argued  Sept.  26, 1917.  Appeal,  No.  81,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Armstrong  Co., 
March  T.,  1916,  No.  49,  on  verdict  for  plaintiff,  in  case 
of  John  J.  Clark  v.  Butler  Junction  Coal  Company,  a 
corporation  under  the  laws  of  Pennsylvania.  Before 
Mestrbzat,  Potter,  Stewart,  Moschzisker  and  Pra- 
ZGR,  J  J.    Reversed. 

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

The  opinion  of  the  Supreme  Court  states  the  facts. 

Verdict  for  plaintiff  for  |3,980  and  judgment  thereon. 
Defendant  appealed. 

Errors  assigned  were  rulings  on  evidence  and  instruc- 
tions to  the  jury. 

H.  4.  Heilman,  with  him  F.  C.  Jones,  for  appellant, 
cited :  Quigley  v.  P,  R.  R.  Co.,  210  Pa.  162;  Com.  to  use 
V.  Julius  et  al.,  173  Pa.  322;  Honesdale  Glass  Co.  v. 
Storms,  125  Pa.  268;  Bassler  v.  Niesly,  2  Ser.  &  R.  352; 
Cunningham  v.  Fort  Pitt  Bridge  Works,  197  Pa.  625; 
McGeehan  v.  Hughes,  217  Pa.  121. 

Harry  C.  Oolden,  with  him  C.  E.  Harrington,  for  ap- 
pellee, cited :  Euhn  v.  Ligonier  Valley  R.  R.  Co.,  255  Pa. 
445;  Burns  v.  Vesta  Coal  Co.,  223  Pa.  473;  Bolt  v.  Wil- 
liamsport  Radiator  Co.,  231  Pa.  585 ;  Hollis  v.  Widener, 
221  Pa.  72;  Smiers  v.  Ford  Collieries  Co.,  252  Pa.  415; 
Martin  v.  Atlantic  Transport  Co.,  237  Pa.  15;  Mack  v. 
Pittsburgh  Rys.  Co.,  247  Pa.  598.     .  . 

Opinion  by  Mr.  Justice  Stewart,  January  7, 1918 : 
The  plaintiff,  a  man  fifty-six  years  of  age,  had  been  a 
coal  miner  for  upwards  of  thirty  years.    When  injured 


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264  CLAEK  v.  BUTLER  JUNCTION  COAL  CO.,  Appel. 

Opinion  of  the  Court.  [259  Pa. 

he  was  in  the  employ  of  the  defendant  company  and  had 
been  for  about  four  months  previous,  not  however  as  a 
miner,  but  as  a  helper  at  the  surface  of  the  mine.  His 
task  was  to  push  from  the  pit  mouth  the  loaded  cars  as 
they  came  from  the  mine  below  over  a  short  track  of 
railroad  into  what  is  spoken  of  as  the  check  house,  where 
the  cars  were  placed  on  an  incline  and  thence  carried  to 
a  tipple  below.  While  so  engaged,  between  the  hours  of 
six  and  seven  in  the  morning  of  January  1, 1915,  he  was 
injured  by  stepping  into  a  hole,  unobserved  by  him,  be- 
tween the  tracks  of  the  road  over  which  he  was  pushing 
several  cars  to  the  check  house.  In  this  hole,  about 
twenty-eight  inches  in  length  by  twelve  in  width,  there 
was  machinery  by  which  the  descent  of  the  cars  on  the 
incline  was  controlled,  consisting  of  a  revolving  wheel 
and  drum  over  which  a  rope  or  cable  passed,  which  it 
was  the  duty  of  the  plaintilBf  to  attach  to  the  cars  before 
they  were  placed  on  the  incline.  The  hole  was  uncov- 
ered and  without  guard.  The  result  of  plaintiffs  mis- 
step into  it  was,  that  he  was  seriously  injured  in  his  right 
knee,  so  he  charges.  For  the  service  he  was  rendering 
the  defendant  company  he  was  receiving  a  wage  of  two 
dollars  per  day.  He  recovered  a  verdict  of  $3,980.00, 
and  the  appeal  is  from  the  judgment  thereon. 

The  errors  assigned  are  fourteen  in  number.  They 
may  be  compressed  within  narrower  limit.  Fully  a  half 
dozen  of  the  assignments  complain  of  undue  latitude  al- 
lowed in  the  testimony  of  the  plaintiff  himself  when  on 
the  stand,  special  reference  being  to  so  much  of  the  tes- 
timony as  related  to  the  wages  he  had  earned  when  en- 
gaged as  a  coal  miner  four  months  before  his  injury ;  to 
his  testimony  that  his  purpose  at  the  time  of  the  injury 
was  to  resume  work  as  a  miner  when  opportunity  af- 
forded; to  his  explanation  of  the  fact  that  he  was  work- 
ing for  a  much  less  wage  when  injured  than  that  he  was 
accustomed  to  receive  as  miner,  and  that  but  for  the  in- 
jury he  received,  he  could  readily  earn  at  mining  from  six 
to  eight  dollars  a  day.    These  assignments  rest  on  tech- 


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CLARK  V.  BUTLER  JUNCTION  COAL  CO.,  Appel.  265 
1918.]  Opinion  of  the  Court. 

nical  grounds,  and  while  several  of  them  are  not  without 
merit,  we  are  not  convinced  that  the  error  they  point  to 
was  substantial,  or  that  prejudice  resulted  to  the  de- 
fendant in  consequence  of  the  admission  of  the  evidence 
complained  of.  One  element  of  damages  in  cases  of  this 
character  is  loss  of  earning  power,  and  one  way — some- 
times the  only  one — of  measuring  such  damage,  is  by  the 
difference  in  wage;  but  care  must  be  observed  to  dis- 
tinguish between  the  thing  itself  which  is  the  basis  of 
recovery  and  the  method  adopted  for  its  measurement. 
This  plaintiff,  although  he  had  been  a  miner  of  coal  for 
more  than  thirty  years,  at  the  time  of  his  accident,  and 
during  the  whole  period  in  which  he  was  so  employed  by 
the  defendant,  was  receiving  but  two  dollars  per  day.  It 
was  perfectly  competent  for  him  to  show  that  he  regard- 
ed his  employment  of  pushing  cars  as  but  temporary; 
that  the  coal  company  that  had  employed  him  as  miner 
had  suspended  operation  because  of  market  conditions, 
and  that  it  was  because  of  this  suspension  he  engaged 
with  the  defendant  company  for  such  work  as  yielded  him 
a  much  less  wage  than  he  had  been  accustomed  to  receive, 
and  that  he  contemplated  returning  to  the  work  of  min- 
ing when  market  conditions  changed.  It  was  not  pretend- 
ed that  his  change  of  employment  was  due  to  any  decline 
in  his  earning  capacity  as  a  miner.  Under  these  circum- 
stances it  would  have  been  manifestly  unfair  to  use  the 
lower  wage  he  received  from  the  defendant  company  as 
a  basis  for  estimating  his  loss  in  earning  capacity. 
While  this  is  true,  it  was,  nevertheless,  error  to  allow  the 
examination  of  the  witness  on  this  branch  of  the  case  to 
proceed  as  it  did,  against  the  objection  of  the  defendant. 
For  instance,  this  question  was  asked  him :  "If  you  were 
able  to  take  such  position  at  the  present  time,  and  work 
in  the  same  way  that  you  worked  before  the  accident  in 
a  coal  mine,  what  would  you  be  able  to  make  at  the  pres- 
ent time?"  His  answer  was :  "I  could  make  six  to  seven 
dollars  a  day."  There  was  but  one  way  of  proving  this, 
and  that  was  by  proving  the  general  wage  scale  for  such 


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266  CLARK  t>;  BUTLER  JCXCTION  COAL  CO.,  Appel. 

Opiuion  of  the  Court.  [259  Pa. 

labor,  in  the  absence  of  any  testimony  that  the  witness 
was  distinguished  by  superior  capacity  over  the  ordinary 
miner.  As  asked  and  answered,  the  jury  was  given  no 
other  basis  for  determining  this  most  important  question 
than  a  mere  conjecture  of  the  plaintiff.  It  is  complained 
that  as  thus  presented,  the  testimony  was  calculated  to 
swell  unduly  the  damages  allowed  for  loss  of  earning  ca- 
pacity.   The  fourth  assignment  of  error  is  sustained. 

Another  assignment  complains  of  the  refusal  of  the 
court  to  allow  on  cross-examination  the  plaintiff  to  be 
inquired  of  with  respect  to  the  medical  and  surgical 
treatment  he  received,  if  any,  immediately  following 
upon  his  injury.  Plaintiff  was  injured  January  1, 1915. 
He  testified  that  he  first  consulted  a  physician  during 
the  following  June,  who  simply  advised  the  use  of  a  rub- 
ber supporter,  which  he  thereafter  did  use,  and  that  he 
exhibited  his  injured  limb  to  no  other  professional  per- 
son for  a  year  thereafter,  and  then  not  for  advice  or 
treatment,  but  in  the  preparation  of  his  case  for  trial. 
Counsel  for  defendant  proposed  to  ask  the  witness  where 
he  resided  at  the  time  of  his  accident,  whether  or  not  he 
had  a  family  physician,  and  whether  he  had  consulted 
him  as  to  his  injury  at  any  time.  This  was  objected  to 
on  the  ground  of  immateriality  and  the  objection  was 
sustained.  The  question  was  entirely  proper.  The 
plaintiff  having  testified  as  to  the  extent  and  character 
of  his  injuries,  the  pain  and  suffering  he  endured,  the 
defendant  had  a  right  on  cross-examination  to  get  from 
him  the  fullest  particulars,  both  as  to  what  he  did  and 
what  he  failed  to  do  to  obtain  relief  and  improvement. 
This  assignment  is  sustained. 

Still  another  complains  of  the  admission  of  the  testi- 
mony of  the  two  witnesses,  Dinninger  and  Troup,  as  to 
the  method  here  adopted  of  maintaining  an  uncovered 
hole  such  as  this  was,  between  the  rails  of  a  track  on 
which  the  loaded  cars  were  pushed  from  the  mouth  of  the 
pit  to  the  check  house,  whether  the  same  was  customary 
and  usual  in  like  places  of  work.     This  objection  should 


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CLARK  V.  BUTLER  JUNCTION  COAL  CO.,  AppQl.  267 
1919.]  Opiuiou  of  the  Court. 

have  prevailed.  The  negligence  charged  was  allowing 
such  an  uncovered  hole  as  this  was  shown  to  be,  in  the 
path  of  the  employee  whose  daily  task  was  to  push 
loaded  cars  over  it  It  was  no  part  of  plaintiff's  case  to 
show  it  to  be  exceptional,  out  of  the  usual  custom  in  the 
operation  of  coal  mines*  The  party  charging  negligence 
does  not  show  it  by  showing  that  the  appliance  which 
caused  the  injurj  was  not  in  common  use :  Cunningham 
V.  Fort  Pitt  Bridge  Works,  197  Pa.  625.  It  is  proper 
for  the  defendant  in  defending  against  the  charge  of 
negligence  to  show,  if  it  can,  that  it  was  the  custom  to 
maintain  such  hole  in  the  condition  described,  whether 
from  necessity  or  otherwise;  but  "the  evidence  should 
not  in  the  first  instance  be  admitted  on  behalf  of  the 
plaintiff  unless  it  tends  to  show  that  the  method  pursued 
was  not  only  unusual,  but  more  dangerous  in  itself  than 
the  ordinary  one" :  Cunningham  v.  Bridge  Works,  supra. 
This  assignment  is  also  sustained. 

The  affirmance  of  plaintiff's  second  point  as  to  the  ap- 
plicability of  the  Act  of  June  2,  1913,  P.  L.  396,  to  this 
action,  as  qualified  by  the  court,  was  without  prejudice 
to  the  defendant.  Without  this,  it  is  so  unrelated  to 
anything  suggested  in  appellant's  statement  of  question 
involved  that  it  calls  for  no  consideration  here,  and  this 
assignment  of  error  is  therefore  dismissed:  Smith  v. 
The  Lehigh  V.  R.  R.  Co.,  232  Pa.  456. 

The  judgment  is  reversed  and  a  venire  facias  de  novo 
is  awarded. 


Browp  t\  Kittanning  Clay  Products  Company, 
Appellant. 

Negligence — Master  and  servant — Death  of  workman  —  Parties 
defendant — Corporations — Identity  of  master — Evidence — Hearsay 
— Declaration  of  agent — Charge  of  court. 

1.  In  an  action  to  recover  damages  for  the  death  of  plaintiff's 
husband,  where  it  appeared  that  deceased  was  in  the  employ  of  a 


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268  BROWN  v.  KITTANNIXG  CLAY  P.  CO,  Appellant. 

Syllabu:*--Statement  of  Facts.  [259  Pa. 

clay  products  company  and  that  he  was  killed  while  at  work,  by  the 
fall  of  a  derrick  constructed  for  the  purpose  of  cleaning  out  a  gas 
well  owned  by  and  located  upon  the  property  of  an  oil  company, 
that  the  two  companies  had  certain  officers  in  common  and  that 
the  oil  company  furnished  natural  gas  used  by  the  products  com- 
pany in  the  operation  of  its  plant,  it  was  reversible  error  for  the 
court  to  charge  that  the  defendant  would  be  liable  if  the  jury 
found  that  the  two  corporations'  were  in  fact  one  and  the  same, 
where  there  was  no  evidence  to  support  the  charga 

2.  Hearsay  evidence  of  a  declaration  on  admission  by  an  agent 
made  after  the  accident  is  inadmissible. 

3.  Where  it  appeared  that  the  superintendent  of  a  defendant 
corporation  was  dead  at  the  time  of  trial,  it  was  not  proper  to  x)er- 
mit  witnesses  to  testify  as  to  declarations  made  to  them  by  such 
superintendent  after  the  accident,  to  the  effect  that  he  did  not  want 
plaintiff's  husband  to  go  to  a  well,  but  he  finally  let  him  go  and 
that  in  the  end  he  had  plainly  told  deceased  to  go  to  the  well. 

4.  Had  there  been  express  testimony  by  some  one  who  had  ac- 
tually heard  the  order  alleged  to  have  been  given  by  the  superin- 
tendent to  the  deceased  to  report  at  the  well,  and  had  the  defend- 
ant denied  the  giving  of  such  order,  the  alleged  declaration  might 
have  been  admitted  in  rebuttal. 

5.  Where  it  appeared  that,  on  the  day  of  the  accident,  defend- 
ant's superintendent,  with  the  knowledge  and  consent  of  defendant, 
permitted  deceased  and  other  workmen  under  his  control  to  work 
about  the  wells  of  the  oil  company,  it  was  for  the  jury  to  determine 
whether,  in  view  of  the  close  relations  existing  between  the  two 
companies,  the  deceased  was  working  for  the  products  company  at 
the  time  of  the  injury,  qt  whether,  as  contended  by  defendant,  he 
was  working  for  the  oil  company,  or  whether  he  was  a  mere  vol- 
unteer. 

Supreme  Court,  Practice — Assignments  of  error — Admission  of 
evidence — Inadequate  objection, 

6.  Where  evidence  is  objected  to  on  inadequate  grounds  and  ad- 
mitted, the  Supreme  Court  cannot  reverse  on  adequate  grounds 
urged  on  appeal  but  not  suggested  below. 

Argued  Sept.  27,  1917.  Appeal,  No.  2,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Armstrong  Co., 
Dec.  T.,  1914,  No.  116,  on  verdict  for  plaintiff,  in  case  of 
Annie  E.  Brown  v.  Kittanning  Clay  Products  Company, 
Before  Mbstrbzat,  Pottbb,  Stbwabt,  Mosghziskbe  and 
Frazbb,  JJ.    Reversed. 


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BROWN  V.  KITTANNING  CLAY  P.  CO.,  Appellant.  269 
1918.]  Verdict — Opinion  of  the  Court. 

Trespass  to  recover  damages  for  the  death  of  plain- 
tifif's  husband.    Before  King,  P.  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

Verdict  for  plaintiff  for  |5,000  and  judgment  thereon. 
Defendant  appealed. 

Errors  assigned  were  instructions  to  the  jury. 

Francis  R.  Harbison^  with  him  Cttarles  F.  Patterson,. 
for  appellant 

C.  E.  Harrington,  with  him  H.  A.  Heilman,  for  ap- 
pellee. 

Opinion  by  Mb.  Justice  Moschziskbb,  January  7, 
1918: 

On  December  13,  1913,  William  Brown  was  killed  by 
the  falling  of  a  derrick,  constructed  for  the  purpose  of 
cleaning  out  a  gas  well ;  his  widow  sued  to  recover  dam- 
ages, alleging  that  her  husband's  death  was  due  to  the 
negligence  of  his  employer,  the  Kittanning  Clay  Prod- 
ucts Company,  a  corporation ;  judgment  was  entered  on 
a  verdict  in  her  favor,  and  the  defendant  has  appealed. 

In  course  of  the  presentation  of  plaintiff's  case,  it  ap- 
peared that  the  well  in  question  belonged  to  and  was  lo- 
cated upon  the  property  of  another  corporation,  named 
the  Foster  Oil  and  Gas  Company,  and  the  trial  judge 
charged  that  defendant  would  be  liable  if  the  jury  should 
find  that  the  Kittanning  Clay  Products  Company  and 
the  Foster  Oil  and  Gas  Company  were,  "in  effect,  one  and 
the  same" ;  this  instruction  is  assigned  as  error.  While, 
in  certain  instances,  the  same  men  held  similar  offices  in 
each  of  these  corporations,  and  the  oil  company  fur- 
nished some  of  the  natural  gas  used  by  the  products  com- 
pany in  the  operation  of  the  latter's  plant,  yet  thei^  is 
no  sufficient  evidence  upon  the  record  to  justify  a  find- 
ing that  they  were,  in  any  sense,  "one  and  the  same" 
company;  for  this  reason,  since,  under  the  instruction- 


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270  BROWN  V.  KITTANNING  CLAY  P.  CO.,  Appellant. 

Opinion  of  the  Court.  [269  Pa. 

complained  of,  the  jury  may  have  based  their  verdict  on 
such  a  finding,  the  fourth  assignment,  which  calls  atten- 
tion to  this  part  of  the  charge,  will  have  to  be  sustained. 

Testimony  was  admitted  on  behalf  of  the  plaintiff, 
under  objection  and  exception,  that  Frank  Foster,  the 
superintendent  of  defendant  company,  who  was  dead  at 
the  time  of  the  trial,  had  told  one  of  plaintiffs  witnesses, 
three  days  after  the  accident,  that  he,  Foster,  "didn^t 
want  Mr.  Brown  [plaintiff's  husband]  to  go  to  that 
well,"  but  that  he  "finally  let  Brown  go^^  there;  and,  in 
the  end,  the  witness  said  plainly  Foster  had  declared  to 
him  that  he  had  "told  Bi*own  to  go  to  the  welL''  It  is 
contended  by  defendant  that  the  admission  of  this  testi- 
mony was  clear  reversible  error,  and  that,  whether  or 
not  this  be  true,  the  evidence  is  insufficient  to  support 
the  verdict.  On  the  other  hand,  plaintiff  contends  that, 
since  at  the  trial  defendant's  objection  was  stated  upon 
the  narrow  and  inadequate  ground  that  Frank  Foster 
was  dead,  it  is  too  late  now  to  insist  upon  broader  rea- 
sons for  its  exclusion ;  and,  being  in,  the  evidence  was 
proper  for  consideration  by  the  jury. 

The  testimony  under  consideration  was,  at  the  most, 
but  hearsay  evidence  of  a  declaration  or  admission  by 
an  agent,  made  after  the  accident ;  therefore,  it  was  in- 
admissible: Scheel  v.  Shaw,  252  Pa.  451,  461;  Monon- 
gahela  Water  Co.  v.  Stewartson  et  ux.,  96  Pa.  436,  439; 
Bigley  v.  Williams,  80  Pa.  107, 116;  Fawcett  v.  Bigley, 
59  Pa.  411,  413;  Giberson  v.  Patterson  Mills  Co.,  174 
Pa.  369,  372.  Of  course,  had  there  been  express  testi- 
mony by  some  one  who  had  actually  heard  the  order  al- 
leged to  have  been  given  by  Foster  to  Brown,  to  report 
at  the  oil  well,  and  had  the  giving  of  such  order  been 
denied  by  (defendant,  then  the  alleged  declaration  of  Fos- 
ter might  properly  have  been  admitted, in  rebuttal;  but 
no  such  record  is  before  us.  While,  under  the  limited 
objection  entered  by  counsel  for  defendant,  we  cannot 
convict  the  trial  judge  of  error  in  admittiilg  this  hearsay 
evidence,  yet,  on  a  retrial  of  the  case,  if  the  testimopy  in 


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BROWN  V.  KITTANNING  CLAY  P.  CO.,  Appellant  271 
1918.]  Opinion  of  the  Court, 

question  be  again  offered^  in  the  same  way  and  under 
similar  circumstances,  a  proper  objection  thereto  should 
prevail. 

Perhaps,  if  the  hearsay  and  incompetent  testimony  we 
have  been  discussing  were  the  only  evidence  upon  the 
issue  as  to  whether  or  not  Brown  was  put  to  work  on  the 
well  by  defendant's  superintendent,  that  being  a  con- 
trolling point  in  the  case,  the  proofs  might  be  held  in- 
sufficient to  support  the  verdict  for  plaintiff  (Reeve  v. 
Leibrandt  Plumbing  Co.,  168  111.  App.  541;  Equitable 
Mortgage  Co.  v.  Watson,  119  Ga.  280,  283,  287;  Eastlick 
V.  Southern  By.  Co.,  116  Ga.  48,  49;  Dwyer  v.  Dwyer, 
26  Missouri  App.  647,  652 ;  but,  in  this  connection,  see 
also  Luckett  v.  Reighard,  248  Pa.  24,  28),  and  defendant 
would  be  entitled  to  judgment  n.  o.  v.  There  was  other 
competent  testimony,  however,  to  the  effect  that,  on  the 
day  of  the  accident,  Mr.  Foster,  who  had  full  charge  of 
defendant's  workmen,  accompanied  Mr.  Brown  to  the 
place  of  the  accident,  where  the  latter  helped  in  the  work 
around  the  derrick ;  that  employees  of  the  products  com- 
pany, for  some  time  prior  thereto,  had  been  in  the  habit 
of  rendering  assistance  in  connection  with  the  wells  of 
the  oil  company;  and  that  this  was  done  with  the  knowl- 
edge and  consent  of  their  employer,  the  defendant. 
Under  these  circumstances,  considering  the  close  rela- 
tions existing  between  the  two  companies,  had  there  been 
no  other  evidence  in  plaintiff's  case  than  that  of  the  facts 
just  referred  to,  and  had  the  objectionable  testimony 
concerning  the  alleged  declaration  of  Foster  been  ex- 
cluded, still  it  would  have  been  for  the  jury  to  determine 
whether  or  not,  at  the  time  of  his  injury.  Brown  was,  in 
fact,  acting  for  his  original  employer,  the  products  com- 
pany. If  Brown  was  not  a  mere  volunteer,  as  contended 
by  appellant,  and  was  unaware  of  any  actual  change  of 
employers,  in  other  words,  if  the  jury  should  find  that, 
as  between  him  and  the  products  company,  he  was  act- 
ing for,  the  latter,  then,  albeit  the  well  belonged  to  the 
oil  company,  the  present  defendant  would  be  liable: 


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272  BROWN  v.  KITTANNING  CLAY  P.  CO.,  Appellant. 

Opinion  of  the  Oourt.  [259  Pa. 

Smith  V.  York  Rys.  06.,  237  Pa.  280,  283.  Therefore, 
the  learaed  court  below  did  not  err  in  refusing  to  enter 
judgment  notwithstanding  the  verdict. 

The  fourth  assignment,  covering  the  matter  first 
passed  upon  in  this  opinion,  is  sustained,  and  the  judg- 
ment is  reversed  with  a  venire  facias  de  novo. 


Commonwealth  v.  Delfino,  Appellant 

Murder — First  degree — Lying  in  wait — Evidence — Adverse  wit- 
ness—  Cross-examination  —  Evidence  of  witness's  previous  state- 
ment — Threats — III  feeling — Remoteness — Admissibility  —  Motive 
— Scope  of  cross-examination  of  defendant — Improper  remarks  of 
district  attorney — Failure  to  object — Dying  declaration — Conflict- 
ing declarations — Defenses  —  AUbi  —  New  trial  —  After-discovered 
evidence — Cumulative  evidence. 

1.  Where  on  the  trial  of  a  homicide  case  one  of  the  Common- 
wealth's witnesses  testifies  at  variance  to  his  previous  statement,  it 
is  not  error  to  permit  the  district  attorney  to  cross-examine  the 
witness  as  to  such  statement,  or  to  offer  testimony  as  to  what  his 
pluvious  statement  was,  for  the  purpose  of  neutralizing  the  effect 
of  his  testimony.  The  allowance  of  such  permission  is  largely  dis- 
cretionary with  the  trial  judge. 

2.  The  remoteness  of  threats  may  greatly  impair  their  probative 
force,  but  as  a  rule  it  does  not  affect  their  admissibility. 

3.  On  the  trial  of  an  indictment  for  murder  it  is  competent  for 
the  Commonwealth  to  show  that  the  defendant  had  formerly 
boarded  with  deceased  and  during  such  time  there  had  been  trouble 
between  them  because  of  which  the  deceased  had  ordered  the  de- 
fendant from  his  home,  although  such  occurrence  was  two  and  a 
half  years  previous  to  the  homicide.  The  remoteness  goes  to  the 
weight  rather  than  the  competency  of  such  evidence. 

4.  Great  latitude  is  permissible  in  the  cross-examination  of  a 
defendant. 

5*  Where  a  defendant  on  trial  for  murder  testifies  that  he  had 
no  motive  or  reason  for  killing  the  deceased,  the  district  attorney 
may  ask  him  questions  tending  to  prove  motive,  and  in  that  con- 
nection to  attempt  to  show  that  defendant  blamed  deceased  for  a 
woimd  inflicted  upon  defendant  by  a  third  party,  and  defendant 
cannot  complain  because  such  examination  failed  in  its  purpose^ 


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COMMONWEALTH  v.  DELFINO,  Appellant.      273 
1918.]  Syllabus. 

where  it  does  not  appear  that  the  district  attorney  asked  the  ques- 
tions in  bad  faith  or  that  defendant  was  prejudiced  thereby. 

ei  It  was  improper  for  the  district  attorn^  to  remark  during 
such  examination,  '*We  believe  now  if  this  man  (the  defendant) 
would  answer  the  questions  truthfully  we  could  show  that  that 
was  the  motive  for  this  homicide,"  but  where  no  objection  or  excep- 
tion was  taken  to  such  remark  at  the  time,  it  cannot  be  made  the 
basis  of  an  assignment  of  error. 

7.  The  fact  that  the  court  in  its  charge  inadvertently  stated  that 
a  certain  witness  testified  to  certain  declarations  of  the  victim, 
where  substantially  such  testimony  had  been  given  by  other  wit- 
nesses but  not  by  the  witness  referred  to,  is  not  reversible  error 
where  the  court's  attention  was  not  called  to  the  mistake  at  the 
time. 

8.  The  allowance  or  refusal  of  a  new  trial  in  a  homicide  case  is 
so  clearly  a  matter  within  the  discretion  of  the  trial  court  that  its 
action  will  not  be  reviewed  in  the  absence  of  clear  error. 

9.  A  motion  for  a  new  trial  in  a  homicide  case,  on  the  ground 
of  after-discovered  evidence,  was  properly  refused  where  such  evi- 
dence was  largely  cumulative  and  with  due  diligence  might  have 
been  discovered  before  the  trial. 

10.  The  fact  that  the  trial  judge,  in  passing  upon  the  motion  for 
a  new  trial,  considered  the  affidavit  of  a  witness  in  explanation  of 
his  deposition,  affords  no  ground  for  reversing  the  judgment. 

11.  After  declarations  have  been  admitted  as  dying  declarations 
their  weight  and  credibility  are  for  the  jury,  and  where  such 
declarations  are  contradictory  with  each  other  it  is  the  duty  of  the 
jury  to  weigh  them  and  determine  which,  if  any,  are  to  be  believed. 

12.  On  the  trial  of  an  indictment  for  murder  the  evidence  tended 
to  show  that  defendant  stepped  from  behind  an  abutment  of  a 
railroad  bridge  and  fired  two  shots  at  deceased,  that  deceased  ran  a 
short  distance  and  made  statements  charging  defendant  with  the 
crime  for  which  he  was  arrested  half  an  hour  thereafter  near  the 
scene  of  the  shooting.  There  was  evidence  that  defendant  saw  de- 
ceased shortly  before  the  latter  started  toward  his  home,  to  reach 
which  he  would  pass  under  the  bridge,  and  there  was  further  evi- 
dence that  defendant  was  seen  going  toward  the  bridge  shortly  be- 
fore the  shooting.  On  the  morning  after  the  shooting  a  revolver  con- 
taining three  38-calibre  cartridges  and  two  empty  shells  was  found 
near  the  railroad  tracks  sixty  rods  from  the  bridge,  and  on  the  fol- 
lowing day  an  empty  cartridge  case  was  found  in  the  defendant's 
room  with  name  and  number  corresponding  to  that  on  the  car- 
tridges found  in  the  revolver.  There  was  evidence  that  ill-feeling 
existed  between  defendant  and  deceased  prior  to  the  shooting. 
Held,  there  was  sufficient  evidence  that  the  murder  was  committed 

Vol.  ccux — 18 


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274      COMMONWEALTH  v.  DELFINO,  Appellant. 

Syllabus — Assignment  of  Errors.  [259  Pa. 

by  lying  in  wait,  and  a  verdict  of  guilty  of  murder  of  the  first 
degree  will  be  sustained. 

Id.  In  such  case  the  court  did  not  err  in  charging  that  ^e 
Commonwealth  has  shown  that  this  cartridge  box  was  found  in  the 
room  of  the  defendant/'  the  word  ^^shown"  used  in  such  connec- 
tion meaning  'tinted  out  or  made  known  by  evidence,"  and  not 
necessarily  that  the  facts  referred  to  had  been  established. 

14.  In  a  homicide  case  the  fact  that  defendant  on  the  afternoon 
of  the  day  of  the  homicide  withdrew  from  the  local  bank  his  entire 
deposit  amounting  to  $200,  was  a  circumstance  tending  to  show 
preparation  for  flight  and  was  properly  admitted. 

15.  Where  the  defense  was  an  alibi  attempted  to  be  established 
by  four  persons  in  a  store,  who  stated  that  defendant  was  in  the 
store  all  evening  (with  the  exception  of  a  period  of  five  minutes) 
until  arrested,  and  it  appeared  that  it  would  have  taken  from  fif- 
teen to  twenty-five  minutes  to  go  to  the  scene  of  the  shooting  and 
return,  but  such  witnesses  were  busy  attending  store  and  estimates 
made  by  some  of  them  indicated  that  what  seemed  like  four  or 
five  minutes  was  in  reality  twelve  to  twenty,  the  court  properly 
charged  that  if  the  defendant  was  gone  long  enough  from  the  store 
to  have  perpetrated  the  crime  and  returned,  referring  to  such  time 
as  fifteen  to  twenty  minutes,  die  jury  might  find  him  guilty,  and 
further  that  'If  you  find  from  the  weight  of  the  testimony,  from 
the  preponderance  of  the  evidence,  that  he  (defendant)  was  not  at 
the  scene  of  the  crime  at  the  time  of  the  killing,  you  must  find  a 
verdict  of  not  guilty." 

Argued  Oct.  8,  1917.  Appeal,  No.  199,  Jan.  T.,  1917, 
by  defendant,  from  sentence  of  O.  &  T.  Lackawanna  Co., 
Oct.  Sessions,  1916,  No.  1,  on  verdict  of  guilty  of  murder 
of  the  first  degree  in  case  of  Commonwealth  of  Pennsyl- 
vania V.  Dominick  Delfino.  Before  Mbstbbzat,  Stew- 
art, MosGHZiSKEE,  Fbazbr  and  Walling,  JJ.    AflBrmed. 

Indictment  for  murder.  Before  Moser,  P.  J.,  spe- 
cially presiding. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

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

Errors  assigned,  among  others,  were  various  rulings 
on  evidence,  alleged  improper  remarks  by  the  district  at- 
torney and  the  charge  of  the  court. 


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COMMONWEALTH  v.  DELFINO,  AppeUant.  275 
1918.]  Arguments. 

Clarence  Bdlentine^yfiih  him  E,  T.  Philbin  and  H.  L. 
Taylor,  for  appellant. — The  district  attorney  should  not 
have  been  permitted  to  cross-examine  one  of  the  Com- 
monwealth's witnesses. 

The  court  improperly  charged  on  the  question  of  alibi : 
Commonwealth  v.  Andrews,  234  Pa.  597;  Turner  v. 
Commonwealth,  86  Pa.  54. 

The  court  erred  in  quoting  the  defendant  as  having 
testified  to  facts  he  did  not  testify  to, 

Oeorge  W.  Maxey,  District  Attorney,  for  appellee. — 
The  district  attorney  is  entitled  to  ask  leading  questions 
if  the  Commonwealth's  witnesses  should  appear  to  be  ad- 
verse: Commonwealth  v.  Wickett,  20  Pa.  Superior  Ct. 
350;  Gantt  v.  Cox  &  Sons  Co.,  199  Pa.  208. 

Evidence  that  defendant  withdrew  his  entire  bank  de- 
posits on  the  day  of  the  shooting  is  admissible :  Brad- 
shaw  V.  The  State  of  Nebraska,  17  Neb.  147 ;  Marion  v. 
The  State  of  Nebraska,  16  Neb.  349;  Rudy  v.  Common- 
wealth,  128  Pa.  500 ;  State  of  Iowa  v.  Hossack,  116  Iowa 
194;  The  People  v.  Willett,  105  Mich.  110;  Gaines  v. 
The  Commonwealth,  50  Pa.  319;  Boyle  v.  The  State, 
105  Ind.  469;  The  People  of  the  State  of  N.  Y.  v.  Mul- 
len, 163  N.  Y.  312 ;  Disque  v.  The  State,  49  N.  J.  L.  249 ; 
United  States  v.  MuUaney,  32  Fed.  370. 

The  court  properly  charged  on  the  question  of  alibi : 
Commonwealth  v.  Andrews,  234  Pa.  597;  Briceland  v. 
The  Commonwealth,  74  Pa.  463. 

The  fact  that  the  court  charged  that  the  Common- 
wealth had  "shown"  that  the  cartridge  box  had  been 
found  in  defendant's  room  did  not  treat  the  fact  as  being 
established  and  was  not  error :  Commonwealth  v.  Raz- 
mus,  210  Pa.  609. 

The  verdict  of  guilty  of  murder  of  the  first  degree  was 
amply  supported  by  the  evidence:  Grant  v.  The  Com- 
monwealth, 71  Pa.  495 ;  Commonwealth  v.  Morrison,  193 
Pa.  613;  Commo^wealth  v.  Danz,  211  Pa.  507. 


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276      COMMONWEALTH  v.  DELPINO,  Appellant. 

Opinion  of  the  Court.  [259  P«. 

Opinion  bt  Mr.  Justicb  Walling,  January  7,  1918 : 

This  is  an  appeal  by  defendant  from  the  judgment  on 
conviction  of  murder  of  the  first  degree. 

On  the  evening  of  April  25,  1916,  Dalmetro  Morobito 
was  shot  and  killed  at  the  subway  where  Wayne  street 
passes  under  the  tracks  of  the  Delaware  and  Hudson 
Railroad,  in  Archbald,  Lackawann^l  County.  The  as- 
sassin apparently  stepped  from  behind  an  abutment  and 
fired  two  shots,  one  taking  eflfect  in  Morobito's  breast 
and  the  other  in  his  neck.  He  made  an  outcry  and  ran 
back  along  the  street  a  short  distance  where  he  fell  and 
was  carried  into  a  barber  shop,  and  later  to  a  hospital 
where  he  died  early  the  next  morning.  The  shooting  oc- 
curred at  8 :  15  p.  m.,  and  the  defendant  was  arrested 
about  one-half  hour  thereafter  on  statements  of  Morobito 
charging  him  with  the  crime.  The  arrest  was  made  in 
Pitea's  store  about  950  feet  from  the  subway. 

We  have  carefully  examined  each  of  the  thirteen  as- 
signments of  error  and  in  our  opinion  none  of  them  can 
be  sustained.  On  the  allegation  that  one  of  the  Com- 
monwealth's witnesses  testified  at  variance  to  his  previ- 
ous statement  to  the  district  attorney,  that  officer  w^as 
permitted  to  cross-examine  the  witness  as  to  such  state- 
ments. This  was  a  matter  largely  in  the  discretion  of 
the  trial  judge  and  his  allowance  of  such  examination 
was  not  error :  Gantt  v.  Cox  &  Sons  Co.,  199  Pa.  208 ; 
Commonwealth  v.  Deitrick,  221  Pa.  7.  That  the  defend- 
ant, on  the  afternoon  of  the  day  of  the  homicide,  with- 
drew from  the  local  bank  his  entire  deposit  amounting 
to  f  200,  which  with  other  money  he  had  on  his  person 
when  arrested,  was  a  circumstance  tending  to  show  prep- 
aration for  flight  and  as  such  was  properly  admitted.  It 
was  competent  for  the  Commonwealth  to  show  that  de- 
fendant had  formerly  boarded  with  the  deceased  at 
when  there  had  been  trouble  between  them,  by  rea- 
son of  which  the  deceased  had  ordered  the  defendant 
from  his  home,  although  such  occurrence  was  two  and  a 
half  years  previous  to  the  homicide.    The  remoteness 


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COMMONWEALTH  v.  DELFINO,  Appellant.      277 
1918.]  Opinion  of  the  Court. 

goes  to  the  weight  rather  than  the  eompetencj  of  such 
evidence;  Sayres  v.  Common  wealth,  88  Pa.  291;  Com- 
monwealth V.  Salyards,  158  Pa.  501.  The  remoteness  of 
threats  may  greatly  impair  their  probative  force,  but  as 
a  rule  it  (Joes  not  affect  their  admissibility  in  evidence : 
21  Cyc.  892;  13  Ruling  Case  Law,  page  925.  Besides, 
here  there  was  some  evidence  tending  to  show  ill  feeling 
between  the  parties  at  a  more  recent  period. 

Mr.  Mellow,  a  witness  called  by  the  Commonwealth, 
testified  that  the  two  men  were  at  his  hotel  early  that 
evening  and  that  Morobito  left  first.  The  district  at- 
torney alleged  surprise  at  this  answer,  and  to  neutralize 
the  same  was  permitted  to  offer  testimony  to  the  effect 
that  Mr.  Mellow  had  previously  stated  that  he  thought 
the  defendant  left  first.  This  was  within  the  trial 
court's  discretion:  Commonwealth  v.  Wickett,  20  Pa. 
Superior  Ct  350.  And  see  Roscoe^s  Criminal  Evidence 
(8th  Ed.),  page  162.  In  any  event,  it  became  unim- 
portant for  defendant  expressly  testified  that  he  left 
Mellow's  place  before  Morobito  did.  Defendant  having 
testified  in  chief  that  he  had  no  motive  or  reason  to  kill 
Morobito,  it  was  competent  for  the  district  attorney  to 
ask  him  such  questions  as  might  tend  to  prove  motive, 
and  in  that  connection  to  try  to  show  that  he  blamed  the 
deceased  for  a  wound  which  had  been  inflicted  upon  de- 
fendant by  a  third  party  a  short  time  before  the  homi- 
cide. The  cross-examination  failed  of  its  purpose,  but 
it  does  not  appear  that  the  district  attorney  asked  the 
questions  in  bad  faith  or  that  defendant  was  prejudiced 
thereby.  Great  latitude  is  permissible  in  the  cross-ex- 
amination of  a  defendant :  Commonwealth  v.  Racco,  225 
Pa.  113;  Commonwealth  v.  Bubnis,  197  Pa.  542;  Com^ 
monwealth  v.  Fitzpatrick,  1  Pa.  Superior  Ct.  518 ;  Com- 
monwealth V.  Williams,  41  Pa.  Superior  Ct.  326.  Dur- 
ing this  examination  the  district  attorney  stated  that 
*We  believe  now  if  this  man  [the  defendant}  would  an^^ 
swer  the  questions  truthfully,  we  could  show  that  that 
wa0  the  motive  for  this  homicide.''    This  was  an  lin- 


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278      COMMONWEALTH  v,  DELPIXO,  Appellant. 

Opinion  of  tho  Court.  [259  Pa. 

proper  remark,  but,  as  there  was  no  objection  or  excep- 
tion taken  thereto,  it  cannot  be  made  the  basis  of  an  as- 
signment of  error:  Commonwealth  v.  Polichinus,  229 
Pa.  311.  True,  objections  were  made  and  exceptions 
taken  to  certain  questions  asked  upon  that  branch  of  the 
cross-examination,  but  nothing  was  said  as  to  the  re- 
mark of  the  district  attorney. 

The  sixth  and  seventh  assignments  of  error  are  based 
upon  certain  statements  in  the  charge  of  the  court, 
wherein  reference  is  made  to  the  contention  and  theory 
of  the  Commonwealth.  But  that  was  not  error,  as  such 
contention  and  theory  found  some  support  in  the  evi- 
dence. The  fact  that  the  defendant  saw  the  deceased 
shortly  before  the  latter  started  down  Wayne  street  in 
the  direction  of  his  home,  to  reach  which  he  would  pass 
the  subway,  and  where  according  to  his  declarations  the 
defendant  stepped  from  behind  the  abutment  and  shot 
him,  tends  to  support  the  contention  that  the  murder 
was  perpetrated  by  lying  in  wait.  And  the  evidence 
that  defendant  was  seen  shortly  before  the  homicide  near 
the  west  end  <rf  the  foot  bridge  at  Salem  street,  above 
Wayne  street,  and  said  he  was  going  home,  which  would 
take  him  over  that  bridge,  tends  to  support  the  theory 
that  he  crossed  the  river  there,  and,  in  connection  with 
the  evidence  that  he  was  at  the  subway,  tends  to  support 
the  theory  that  he  came  there  by  walking  down  the  rail- 
road track. 

In  addition  to  his  general  denial,  defendant  set 
up  an  alibi  and  submitted  his  own  evidence  and 
that  of  four  other  witnesses  to  the  effect  that  he  had  been 
continuously  in  the  store  where  arrested  since  before 
seven  o^clock,  except  at  one  time  not  exceeding  five  min- 
utes when  he  was  called  to  the  door  by  the  chief  of  police. 
To  go  and  commit  the  crime  and  return  in  the  manner 
the  Commonwealth  contends  he  did  would  take  under 
ordinary  circumstances  about  fifteen  minutes,  as  he 
would  travel  some  four-fifths  of  a  mile.  However,  the 
witnesses  to  jthe  alibi  were  busy  waiting  upon  customers 


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COMMONWEALTH  v.  DELFINO,  Appellant.      273 
1918.]  Opinion  of  the  Court 

in  the  store  and  had  no  way  of  fixing  the  length  of  time 
the  defendant  was  absent  therefrom,  except  as  an  esti- 
mate from  recollection.  And  estimates  made  by  some 
of  those  witnesses  while  testifying  indicate  that 
what  to  them  seemed  four  or  five  minutes  was  in  reality 
from  twelve  to  twenty  minutes.  On  the  question  of  alibi 
the  court  charged,  inter  alia:  "If  you  find  from  the 
weight  of  the  testimony,  from  the  preponderance  of  the 
evidence,  that  he  was  not  at  the  scene  of  the  crime  at  the 
time  of  the  killing,  you  must  find  a  verdict  of  not  guilty." 
This  was  a  correct  statement  of  the  law :  Rudy  v.  The 
Commonwealth,  128  Pa.  500;  Commonwealth  v.  An- 
drews, 234  Pa.  597.  The  court  further  said  in  sub- 
stance that  if  the  defendant  was  gone  from  the  store  long 
enough  to  perpetrate  the  crime  and  return,  referring  to 
such  time  as  fifteen  to  twenty  minutes,  then  they  might 
find  him  guilty.  This  was  a  proper  explanation  and 
called  the  attention  of  the  jury  to  the  true  test  of  the 
alibi. 

On  the  next  morning  after  the  shooting,  a  revolver, 
containing  three  38-calibre  cartridges  and  two  empty 
shells,  was  found  on  a  box  over  the  wheel  of  a  car  stand- 
ing on  a  switch  about  sixty  rods  up  the  track  from  the 
subway.  And  two  days  after  the  crime  was  committed 
an  empty  cartridge  box  was  found  in  the  def^idant^s 
room  in  his  boarding  house,  with  name  and  number  cor- 
responding to  that  on  the  cartridge  found  in  the  revolver. 
The  court  in  commenting  upon  this  circumstance  said 
that  "The  Commonwealth  has  shown  that  this  cartridge 
box  was  found  in  the  room  of  the  defendant."  Several 
witnesses  had  so  testified ;  but  it  is  urged  for  defendant 
that  the  use  of  the  word  "shown"  treated  the  fact  as  es- 
tablished, while  the  credibility  of  the  testimony  was  for 
the  jury.  We  see  no  merit  in  such  contention.  A 
proper  definition  of  *^hown"  as  used  in  the  charge  would 
be  "pointed  out  or  made  known  by  evidence,"  and  that 
accords  with  the  dictionaries.  The  court  did  not  say  it 
had  been  conclusively  shown,  and  the  jury  knew  that 


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280      COMMONWEALTH  v.  DELFINO,  AppeUant. 

Opiuion  of  tho  Court.  [259  Pa. 

such  fact  rested  upon  oral  testimony,  and  were  in- 
structed that,  ^^The  facts  are  to  be  found  from  the  testi- 
mony as  you  recollect  it."  The  court  inadvertently 
stated  that  the  doctor  had  testified  to  certain  declara- 
tions as  made  by  Morobito  shortly  after  the  shooting, 
when  substantially  such  testimony  had  been  given  by 
other  witnesses,  but  not  by  the  doctor.  The  court's  at- 
tention was  not  called  to  this  mistake  at  the  time  and, 
therefore,  it  constitutes  no  ground  for  reversing  the 
judgment:  Commonwealth  v.  Bazmus,  210  Pa.  609; 
Commonwealth  v.  Wasson,  42  Pa.  Superior  Ct.  38. 

The  so-called  after-discovered  evidence,  as  exhibited 
in  the  depositions,  was  largely  cumulative,  and  with  due 
diligence  might  have  been  discovered  before  the  trial. 
There  was  no  abuse  of  discretion  in  refusing  to  grant  a 
new  trial  on  that  ground.  Such  refusal  was  so  clearly 
a  matter  within  the  discretion  of  the  court  below  that 
its  action  in  this  respect  will  not  be  reviewed  in  the  ab- 
sence of  clear  error :  Knickerbocker  Ice  Co.  v.  Pa.  R.  R. 
Co.,  253  Pa.  54,  66.  And  see  Commonwealth  v.  Garrito, 
222  Pa.  304.  That  the  trial  judge  in  passing  upon  the 
motion  for  a  new  trial  considered  the  affidavit  of  a  wit- 
ness in  explanation  of  his  deposition  affords  no  ground 
for  reversing  the  judgment.  The  case  depended  to  a 
considerable  extent  upon  dying  declarations,  the  weight 
of  which  was  for  the  jury.  "All  the  authorities  agree 
that  after  the  declarations  have  been  admitted  as  dying 
declarations  their  weight  and  credibility  are  purely  for 
the  determination  of  the  jury":  1  Ruling  Case  Law, 
page  547.  Where  such  declarations  are  contradictory 
to  each  other,  it  is  the  duty  of  the  jury  to  weigh  them 
and  to  determine  which  if  either  is  to  be  believed :  Whar- 
ton's Criminal  Evidence  (10th  Ed.),  page  585.  The 
question  of  guilt  or  innocence  was  for  the  jury  to  decide, 
subject  to  the  approval  of  the  trial  judge.  If  guilty  the 
case  presents  all  the  elements  of  first  degree  murder. 
Having  considered  and  passed  upon  the  alleged  errors, 
our  duty  is  performed. 


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COMMONWEALTH  v.  DELPINO,  Appellant.      281 
1918.]  Opinion  of  the  Court 

The  assignments  of  error  are  all  overruled,  the  judg- 
ment is  affirmed  and  the  record  is  remitted  for  the  pur- 
pose of  execution. 


McMullin  et  aL,  Appellants,  v.  Westinghouse 
Estate  et  al. 

Corporations — Management  hy  creditors — Sale  of  assets — Pur- 
chase hy  sole  stockholder  and  president — Alleged  fraud — Trusts  and 
trustees — Bill  in  equity — Dismissal, 

A  bill  in  equity  brought  by  certain  creditors  of  a  corporation 
sought  to  impose  liability  on  a  decedent's  estate  on  the  ground  that 
the  decedent's  acquisition  of  the  assets  of  the  corporation  was  a 
breach  of  the  relationship  of  trust  and  confidence  in  which  he  stood 
to  complainants,  and  fraudulent.  It  appears  that  deceased  had 
been  president  of  the  corporation  and  owner  of  all  its  stock.  The 
corporation  was  placed  in  the  hands  of  a  receiver  and  thereafter 
the  creditors  perfected  a  plan,  in  which  complainants  joined,  under 
which  the  receiver  was  discharged  and  the  creditors  controlled  the 
company,  naming  six  of  its  nine  directors,  and  managed  its  af- 
fairs by  an  executive  committee  composed  of  three  of  the  six  di- 
rectors they  had  appointed.  The  company  was  unable  to  meet  its 
obligations  and  its  securities  were  sold  at  public  auction,  and  were 
purchased  by  deceased  as  the  highest  bidder.  The  court  found  on 
amply  sufficient  evidence  that  after  the  creditors  assumed  control 
deceased  took  no  part  in  the  affairs  of  the  company  and  had 
no  control  over  them,  and  that  deceased  did  not  procure  the  sale 
to  be  made  and  possessed  no  means  to  prevent  its  taking  place. 
Held,  (1)  the  mere  fact  that  deceased  was  the  sole  stockholder  did 
not  render  the  transaction  a  fraud,  (2)  no  relationship  of  trust 
and  confidence  existed  between  deceased  and  complainants  at  the 
time  of  the  sale,  and  (3)  the  bill  was  properly  dismissed. 

Argued  Oct,  15,  1917.  Appeal,  No.  145,  Oct.  T.,  1917, 
by  plaintiffs,  from  decree  of  C.  P.  Allegheny  Co.,  Jan.  T., 
1917,  No.  1228,  in  equity,  dismissing  bill  in  equity  to 
have  defendants  declared  trustees,  in  case  of  M.  K.  Mc- 
Mullin  and  Prank  H.  Clark,  Partners,  Doing  Business 
as  M.  K.  McMullin  &  Co.,  for  Themselves  and  Such  Other 
Creditors  of  the  Security  Investment  Compa^y  (Other 


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282       McMULLIN,  Appellant,  v.  WESTINGHOUSE. 

Statemeut  of  Facta — Opinion  of  Court  below.  [259  Pa. 
Than  the  Defendants)  Who  May  Desire  to  Intervene  and 
Become  Parties  Plaintiflf,  The  Allegheny  Trust  Company 
V.  H.  H.  Westinghouse,  Walter  D.  Uptegraff  and  Charles 
A.  Terry,  Executors  of  the  Estate  of  George  Westing- 
house,  Deceased;  the  Security  Investment  Company,  a 
Corporation  of  Pennsylvania;  George  Westinghouse, 
Jr.,  and  H.  H.  Westinghouse,  Residuary  Legatees  Under 
the  Last  Will  and  Testament  of  George  Westinghouse, 
Deceased.  Before  Brown,  C.  J.,  Potter,  Moschziskbr, 
Prazbr  and  Walung,  JJ.    Affirmed. 

Bill  in  equity  to  have  defendants  declared  trustees  of 
assets  purchased  from  Security  Investment  Con^pany. 

The  facts  appear  from  the  following  opinion  by 
Shafer,  p.  J. : 

The  bill  is  by  creditors  of  the  Security  Investment 
Company  for  themselves  and  other  creditors  who  may 
desire  to  join,  to  have  the  executors  of  the  decedent  de- 
creed to  be  trustees  of  the  assets  of  the  Security  Invest- 
ment Company  for  the  plaintiffs  and  certain  other  credi- 
tors of  the  same  class,  and  require  them  to  pay  to  the 
Security  Investment  Company  such  sums  as  may  bie 
necessary  to  discharge  the  indebtedness  owing  to  the 
plaintiffs  and  others. 

FINDINGS  OF  FACT. 

First.  In  the  year  1907,  George  Westinghouse  was  the 
owner  of  a  large  number  of  shares  of  stock  in  the  West- 
inghouse Airbrake  Company,  Westinghouse  Switch  & 
Signal  Company,  Westinghouse  Electric  &  Manufactur- 
ing Company,  Westinghouse  Machine  Company,  and 
other  subsidiary  companies,  he  being  the  president  and 
director  of  most  of  these  companies. 

Second.  At  the  same  time  Mr.  George  Westinghouse 
was  the  legal  owner  of  all  the  stock  of  the  Security  In- 
veisrtttient  Company  and  was  the  equitable  owner  of  all 
the  shares  of  stock  held  by  the  directors  of  the  company, 


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McMULLIN,  Appellant,  v.  WESTINGHOUSE.       283 
1918.]  Opinion  of  Court  below. 

such  shares  haying  been  transferred  to  them  by  Mr. 
Westinghouse  for  the  purpose  of  qualifying  them  to  act 
as  such  directors.  This  company  was  incorporated  by 
special  act  of  the  legislature  of  Pennsylvania,  approved 
May  29,  1871,  by  the  name  of  the  Southwest  Pennsyl- 
vania Improvement  Company.  It  was  given  extensive 
powers  by  its  charter  and  its  capital  stock  had  at  this 
time  been  increased  to  three  million  dollars,  one  million 
of  which  was  preferred  stock  and  the  balance  common 
stock,  all  of  which  was  fully  paid. 

Third.  The  Security  Investment  Company  did  not  en- 
gage in  any  business,  except  the  holding  of  securities  of 
the  various  Westinghouse  enterprises  above  mentioned, 
and  in  the  year  1907  and  for  a  long  time  before  was 
solvent,  having  a  considerable  surplus. 

Fourth.  In  October,  1907,  there  occurred  a  severe 
financial  panic  by  which  the  market  price  of  various 
securities  of  the  Westinghouse  companies  was  greatly 
reduced,  and  the  stocks  of  these  companies  owned  by  the 
Security  Investment  Company,  and  pledged  by  it  in 
various  banks,  were  likely  to  be  sacrificed.  On  the  23d 
of  October  receivei-s  were  appointed  for  the  Security  In- 
vestment Company,  as  well  as  for  others  of  the  Westing- 
house companies  above  mentioned,  by  the  United  States 
District  Court  for  the  Western  District  of  Pennsylvania. 

Fifth.  In  February,  1908,  the  receiver,  being  the  Fi- 
delity Title  &  Trust  Company  of  Pittsburgh,  advised  all 
the  creditors  of  the  Security  Investment  Conapany  that 
after  consultation  with  the  principal  creditors  they  had 
nominated  a  Creditors^  Committee  consisting  of  officers 
of  the  various  banks  in  Pittsburgh  and  in  other  cities 
where  Westinghouse  securities  were  held  by  banks  and 
others.  The  purpose  of  this  committee  was  to  have  the 
creditors  join  together  in  protecting  the  assets  of  the 
Security  Investment  Company  and  to  aid  the  receivers 
in  the  management  of  its  affairs. 

Sixth.  Almost  half  of  the  assets  of  the  Security  In- 
vestment Company  consisted  in  stocks  and  bonds  of  the 


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284       McMULLIX,  Appellant,  v.  WESTINGHOUSE. 

Opinion  of  Court  below.  [259  Pa. 

Westinghouse  Electric  &  Manufacturing  Company 
whicli  was  also  in  tlie  hands  of  a  receiver.  It  was 
deemed  necessary  for  tlie  rehabilitation  of  the  Westing- 
house  Electric  &  Manufacturing  Company  that  new 
capital  should  be  brought  into  it  by  issuing  additional 
shares  of  its  capital  stock  at  par,  which  were  to  be  taken 
by  the  owners  of  stock  in  proportion  to  their  shares.  In 
order  that  the  Security  Investment  Company  might  do 
its  part  in  this  raising  of  additional  capital  for  the  West- 
inghouse Electric  &  Manufacturing  Company,  a  plan 
and  agreement  for  the  extension  of  its  debt  and  the  pro- 
tection of  its  interest  in  the  Westinghouse  Electric  & 
Manufacturing  Company  was  prepared  by  the  Creditors' 
Committee,  a  copy  of  it  being  printed  as  Exhibit  A  of  the 
bill. 

Seventh.  This  plan  provided  for  the  issue  of  new  notes 
to  be  taken  by  the  creditors  of  the  Security  Investment 
Company  who  held  the  electric  stock  as  collateral,  tp  an 
amount  equal  to  twenty-five  per  cent  of  the  face  value 
of  the  stock  so  held  by  them,  the  stock  procured  by  the 
proceeds  of  these  notes  to  be  pledged  as  security  for  the 
notes.  The  plan  also  provided  as  to  the  notes  already 
held  by  the  creditors  of  the  company  that  new  notes 
should  be  given  by  the  Security  Investment  Company 
in  exchange  for  the  notes  already  held  by  the  creditors, 
payable  in  three  years  after  May  1,  1908,  in  the  case  of 
creditors  who  had  collateral  aggregating  or  exceeding 
the  face  amount  of  the  notes,  and  in  the  case  of  other 
creditors,  whether  secured  in  part  or  unsecured,  notes 
maturing  in  five  years  from  May  1,  1908,  were  to  be 
given. 

Eighth.  It  was  further  provided  that  all  the  stock  of 
the  Westinghouse  Electric  &  Manufacturing  Company 
which  was  held  as  security  for  any  notes  then  outstand- 
ing, as  well  as  the  new  stock  to  be  purchase,  should  be 
deposited  with  the  Fidelity  Title  and  Trust  Company  but 
should  continue  to  be  security  for  the  notes  for  which  it 


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McMllLLIN,  Appellant,  v.  WESTINGflOUSE.       285 
1918.]  Opinion  of  Court  below, 

was  originally  pledged;   and  that  the  company  should 
have  the  right  to  vote  all  the  stock  so  deposited. 

Ninth.  It  was  further  provided  that  the  board  of  di- 
rectors should  be  increased  to  nine  members  and  pro- 
visions satisfactory  to  the  Creditors'  Committee  should 
be  made  so  that^  as  long  as  any  of  the  notes  remained 
unpaid,  six  of  the  members  of  the  board  of  directors 
should  be  persons  approved  in  writing  by  the  committee. 

Tenth.  This  plan,  dated  March  6,  1908^  but  not  ac- 
tually executed  until  December,  1908,  was  submitted  by 
the  creditors'  committee  to  all  creditors  of  the  Security 
Investment  Company,  with  the  recommendation  that  it 
be  signed,  and  it  was  signed  by  almost  all  the  creditors, 
and  among  others  by  the  plaintiffs. 

Eleventh.  Upon  the  presentation  of  this  plan  and 
agreement  to  the  United  States  Court  the  company  was 
taken  out  of  the  hands  of  the  receiver  and  the  change  in 
the  number  of  directors  agreed  upon  was  made,  and  six 
directors  were  elected  who  were  nominated  by  the  Cred- 
itors' Committee,  the  stock  of  the  company  being  voted 
by  the  Safe  Deposit  &  Trust  Company,  to  whom  it  had 
been  transferred  by  Mr.  Westinghouse  as  trustee,  to  in- 
sure the  carrying  out  of  the  agreement  with  the  creditors 
as  to  control  of  the  company. 

Twelfth.  After  this  plan  of  extension  had  been  put  in 
operation,  the  Security  Investment  Company  entered 
upon  no  new  business  but  its  sole  business  consisted  in 
attempting  to  liquidate  its  indebtedness  by  sale  of  securi- 
ties and  to  procuring  reductions  from  its  creditors.  In 
the  meantime,  before  the  maturity  of  the  notes  which 
ran  for  five  years,  Mr.  Westinghouse  purchased  a  large 
number  of  claims  of  creditors,  for  most  of  which  he  paid 
less  than  face  value  and  for  some  very  much  less. 

Thirteenth.  At  the  1st  of  May,  1913,  when  all  the  notes 
were  due  and  the  company  had  failed,  owing  to  the  con- 
tinued depression  in  the  value  of  the  securities,  to  raise 
sufficient  money  to  pay  the  debts,  although  a  large  num 
ber  of  the  shares  pledged  had  been  sold  and  a  large  num- 


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286       McMULLIN,  AppeUant,  v,  WESTINGHOUSE. 

Opinion  of  Court  below.  [250  Pa. 

ber  of  notes  secured  by  them  had  been  paid,  and  all  of 
the  new  notes  which  all  fell  due  on  that  day  were  still  out- 
standing,  the  Fidelity  Title  &  Trust  Company,  Trustee, 
which  held  these  notes  and  securities,  took  up  the  matter 
of  selling  out  the  securities.  It  appears  to  have  been 
agreed  by  the  parties  concerned  that  it  was  not  wise  to 
attempt  to  sell  these  securities  at  that  time  on  account 
of  the  state  of  the  market.  At  this  time  there  were  in 
various  Pittsburgh  banks  notes  of  Mr.  Westinghouse  to 
the  amount  of  f  666,000,  which  he  had  given  for  the  pur- 
pose of  supplying  the  deficit  left  by  the  failure  of  all  the 
creditors  to  pay  25%  of  new  money  into  the  affair  for  the 
purpose  of  rehabilitating  the  Westinghouse  Electric  & 
Manufacturing  Company,  and  there  were  other  notes  be- 
longing to  other  persons  outstanding,  so  that  the  whole 
amount  of  money  which  was  necessary  to  pay  the  secured 
notes,  with  interest  and  expenses,  was  |1,614,700.  Mr. 
Westinghouse,  in  the  summer  of  1913,  made  efforts  to 
provide  for  the  money  necessary  to  bid  this  amount  when 
the  stock  should  be  sold  and  among  others  he  attempted 
to  procure  the  same  from  plaintiffs.  He  afterwards  ob- 
tained the  money  by  an  arrangement  with  the  Westing- 
house Airbrake  Company. 

Fourteenth.  The  securities  were  thereupon  advertised 
for  sale  in  accordance  with  the  provisions  of  the  trust  in- 
denture at  auction  on  October  7, 1913.  When  they  were 
sold  Mr.  Westinghouse  bid  for  them  |1,614,700,  and  they 
were  sold  to  hun  at  that  price.  He  paid  for  them  by  hav- 
ing the  notes  surrendered  to  the  trustee  and  cancelled 
and  issued  his  own  notes  to  the  holders  of  the  securities 
so  cancelled  for  one-half  thereof,  pledging  Westinghouse 
Electric  stock  purchased  by  him  at  the  sale,  and  paying 
the  other  half  in  cash. 

Fifteenth.  Shortly  thereafter  Mr.  Westinghouse  pro- 
ceeded to  sell  the  Westinghouse  Electric  stock  so  acquired 
by  him,  the  plaintiffs  acting  as  his  brokers  for  the  sale 
of  the  whole  of  it,  and  the  proceeds  were  used  to  take  up 
the  notes. 


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McMULLIN,  AppeUant,  v.  WESTINGHOUSE.  287 
1918.]  Opinion  of  Court  below. 

Sixteenth.  Mr.  Westinghoisse  died  Marcli  12,  1915, 
and  the  defendants  were  appointed  executorB  and  his 
estate  has  been  distributed  in  the  Orphans'  Court. 

Seyenteenth.  After  the  change  in  the  directorate  of  the 
Security  Investment  Company  provided  for  by  the  plan 
of  extension  the  affairs  of  the  company  were  managed 
by  an  executive  committee  appointed  by  the  board,  com- 
posed of  three  of  the  directors  who  were  designated  by 
the  Creditors'  Committee;  and  Mr.  Westinghouse  as 
president  and  director  took  no  active  part  in  the  affairs 
of  the  company  and  had  no  control  of  them.  The  sale 
made  in  October,  1913,  was  not  procured  by  Mr.  West- 
inghouse to  be  made,  nor  did  he  have  any  control  or  other 
means  by  which  it  could  have  been  prevented. 

Eighteenth.  The  claim  of  the  plaintiffs  against  the 
Security  Investment  Company  is  f  130,253.05,  with  inter- 
est, and  is  an  entirely  unsecured  claim,  being  the  balance 
of  an  account  with  the  company  as  brokers,  for  which 
the  plaintiffs  received  in  December,  1908,  a  new  note  made 
by  the  Security  Investment  Company  under  the  plan  of 
extension. 

CONCLUSIONS  OP  LAW. 

First.  The  plaintiffs  contend,  first,  that  under  the 
facts  of  this  case  the  Security  Investment  Company  in 
incurring  the  debt  to  the  plaintiff  was  in  equity  the  agent 
of  George  Westinghouse,  and  that  its  debt  was  his ;  and 
secondly,  that  under  the  facts  of  the  case,  when  George 
Westinghouse  purchased,  at  the  sale  made  by  the  Fi- 
delity Title  &  Trust  Company,  on  October  7,  1913,  he 
took  the  shares  purchased  by  him  subject  to  a  trust  for 
the  general  creditors  of  the  Security  Investment  Com- 
pany, as  to  any  excess  of  value  or  proceeds  over  the 
amount  paid  by  him. 

Second.  As  to  the  first  contention  of  the  plaintiffs, 
that  Mr.  Westinghouse  is  liable  for  the  debts  of  the  Se- 
curity Investment  Company  because  it  was  his  agent,  we 
are  unable  to  see  anything  in  the  facts  of  the  case  which 


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288       MoMULLIN,  AppeUant,  v.  WESTINGHOUSE. 

Opinion  of  Court  below.  [259  Pa. 

would  indicate  any  such  agency,  unless  it  is  contended 
that  the  fact  that  Mr.  Westinghouse  owned  all  the  stock 
of  that  company  made  it  his  agent.  We  do  not  conceive 
that  this  is  really  the  plaintiffs'  contention,  but  ruther 
that  the  claim  is  that  as  Mr.  Westinghouse  owned  all 
the  stock  of  the  Security  Investment  Company  all  its 
debts  were  his  personal  debts  as  being  contracted  by  him 
although  under  another  name.  In  other  words,  that  the 
Security  Investment  Company  was  a  mere  alias  for 
George  Westinghouse.  That  courts  will  in  proper  cases 
look  behind  the  act  of  incorporation  and  deal  with  the 
real  owners  to  discover  and  control  fraud  there  is  no 
doubt,  but  the  mere  fact  that  one  person  is  the  sole  stock- 
holder in  a  corporation  does  not  make  him  the  same  per- 
son with  the  corporation:  Monongahela  Bridge  Com- 
pany V.  Pittsburgh  &  Birmingham  Traction  Company, 
196  Pa..  25.  We  are  therefore  of  opinion  that  Mr.  West- 
inghouse is  not  liable  for  the  note  of  the  plaintiff  upon 
this  theory. 

Third.  Even  if  he  were  so  liable,  the  plaintiff  could 
not  recover  in  this  proceeding  but  must  proceed  by  an 
action  at  law  or,  as  Mr.  Westinghouse  is  dead,  against 
his  estate  in  the  Orphans'  Court.  No  ground  of  equitable 
relief  is  presented  by  such  a  case,  and  the  want  of  equity 
jurisdiction  has  been  pleaded. 

Fourth.  The  other,  and  as  we  apprehend  the  main 
ground  upon  which  plaintiff  prays  for  relief  in  this  case, 
is  the  contention  that  under  the  circumstances  Mr.  West- 
inghouse was  incapable  of  buying  the  shares  from  the 
Fidelity  Title  &  Trust  Company,  Trustee,  except  as  a 
trustee  for  the  creditors  of  the  Security  Investment 
Company,  because  he  was  president  of  the  company  and 
a  director  of  it,  and  the  owner  of  its  stock.  It  does  not 
appear  that,  so  far  as  the  ownership  of  the  stock  is  con- 
cerned, there  is  any  difference  in  the  relation  to  the  com- 
pany or  its  creditors,  between  the  stockholder  who  owns 
part  of  the  stock  and  one  who  owns  all  of  it.  Unless 
there  is  actual  fraud  in  the  case  he  is  to  be  treated  in 


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McMULLIN,  Appellant,  v.  WESTINGHOUSE.  289 
1918.]  Opinion  of  Court  below — Opinion  of  the  Court. 
each  case  as. a  mere  stockholder.  As  a  stockholder  he 
may,  of  course,  deal  at  arm's  length  with  the  company. 
As  president  and  director  of  the  company  his  relation  is 
different,  and  if  it  appeared  that  acting  in  either  ca- 
pacity he  had  control  of  the  sale  it  might  be  that  he  could 
not  purchase  for  himself.  In  this  case,  however,  it  ap- 
pears that  the  majority  of  the  directors  were  named  by 
the  Creditors'  Committee,  and  all  of  the  executive  com- 
mittee were  named  by  them,  and  that  Mr.  Westinghouse 
had  no  real  control  of  the  company  and  no  means  of  con- 
trolling the  sale,  and  further,  that  he  had  no  funds  nor 
were  any  funds  available  for  the  payment  of  the  debt  on 
which  the  sale  was  made.  We  are  therefore  of  opinion 
that  the  purchase  by  Mr.  Westinghouse  of  the  shares  in 
question,  under  the  circumstances  in  this  case,  was  not 
a  purchase  in  trust  for  the  Security  Investment  Com- 
pany or  its  creditors. 

The  bill  must,  therefore,  be  dismissed,  with  costs  to  be 
paid  by  the  plaintiffs. 

The  lower  court  dismissed  the  bill.     Plaintiffs  ap- 
pealed. 

Error  assigned,  among  others,  was  in  dismissing  the 
bill. 

Samuel  McClay,  with  him  David  A.  Reed,  of  Reed, 
Smith,  Shaw  &  Beat,  for  appellants. 

Oeorge  B.  Gordon,  of  Gordon  &  Smith,  with  him  John 
G.  Buchanan,  for  appellees. 

Per  Curiam,  January  7, 1918: 

The  complaint  of  the  appellants  in  seeking  to  impose 
liability  upon  the  estate  of  George  Westinghouse,  de- 
ceased, is  that  his  acquisition  of  the  assets  of  the  Security 
Investment  Company  constituted  and  was  a  breach  of 
the  relationship  of  trust  and  confidence  in  which  he  stood 
to  them,  and  was  a  fraud  in  law  and  equity  upon  their 
Vol.  cclix — 19 


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290       McMULLIN,  Appellant,  v.  WESTINGHOUSE. 

Opinion  of  the  Court  [259  Pa. 

rights.  The  thirty-fifth  fact  found  by  the  learned  chan- 
cellor below,  at  the  request  of  the  appellees,  is:  "Mr. 
Westinghouse  did  not  at  the  time  of  any  of  the  purchases 
made  by  him  from  the  Security  Investment  Company 
occupy  any  relation  of  trust  or  confidence  to  the  company 
with  reference  to  said  -sales,  or  any  of  them,  nor  did  he 
have  any  voice  or  exercise  any  influence  as  to  the  amount 
of  money  which  the  Security  Investment  Company  was 
willing  to  take  for  said  property  or  any  of  it."  This  fact, 
justified  by  the  evidence,  put  an  end  to  complainants' 
case.  The  material  facts  appear  in  the  opinion  of  the 
court  below  dismissing  the  bill,  and,  on  that  opinion, 
subsequently  immaterially  modified  as  to  the  third  find- 
ing of  fact,  the  decree  is  affirmed  at  the  costs  of  the  ap- 
pellants. 


Pittsburgh  Block  Coal  Company  v.  Oliver  Coal 
Company  et  al.,  Appellants. 

Contracts — Suretyship — Coal  lands — Receipts  —  Explanation  — 
Evidence — Legal  effect  of  receipt — Admission  in  pleadings — Exces- 
sive verdict — Motion  for  new  trial — Charge  of  court — Failure  to 
request. 

1.  In  an  action  by  a  lessor  of  coal  lands  on  a  joint  bond  given  by 
the  lessee  as  principal,  and  a  surety,  one  of  the  conditions  being 
for  the  payment  of  royalty  upon  coal  actually  mined,  tbe  control- 
ling question  was  the  effect  to  be  given  a  certain  receipt  and  the 
evidence  relating  thereto.  The  receipt  was  given  by  the  plaintiff 
company  to  the  defendants'  president  as  trustee  of  insurance  money 
and  was  in  the  following  form :  **Keceived  of  [plaintiff's  president, 
naming  him]  Trustee,  One  thousand  seventy-five  Dollars  in  pay- 
ment as  follows :  By  direction  of  Oliver  Coal  Co.  for  its  account : 
$376.27  Bal.  Nov.  1912  royalty;  $344.30  on  1912.  Minimum  under 
lease,  $279.53  for  Jany.  1913  royalty;  $76  for  boiler  tube  cleaner." 
A  fire  had  occurred  on  the  leased  premises  and  the  insurance  com- 
pany paid  the  amount  of  the  loss  by  check  to  the  joint  order  of  the 
lessor  and  lessee,  but  before  the  latter  would  endorse  the  check  it 
required  a  trusteeship  to  be  established  with  the  plaintiff's  presi- 
dent as  trustee.  The  receipt  in  question  represented  the  dispo- 
sition of  a  part  of  the  insurance  money  by  the  trustee.    Plaintiff's 


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PITTSBURGH  B.  C.  CO.  v.  OLIVER  C.  CO.,  AppeL  291 
1918.]  Syllabus— Statement  of  Facts, 

president  testified  that  the  receipt  was  given  in  the  office  of  the 
president  of  the  defendant  company  and  was  drawn  up  in  accord- 
ance with  the  direction  of  defendant's  president,  treasurer  and  gen- 
eral manager,  and  1iiat  the  receipt  was  not  intended  as  a  receipt 
in  full,  but  that  at  the  time  it  was  given  there  was  overdue  from 
the  defendant  company  to  the  plaintiff  $2,600  for  coal  actually 
mined.  Under  defendant's  objection  the  court  admitted  in  evidence 
a  paragraph  of  plaintiff's  statement  setting  forth  that  such  amount 
was  due  for  royalties  on  coal  mined,  on  the  ground  that  the  aver- 
ments of  such  paragraph  were  not  sufficiently  or  specifically  denied 
in  the  affidavit  of  defense.  Held,  (1)  such  evidence  was  properly 
admitted,  and  (2)  the  receipt  was  not  conclusive  against  the  right 
of  the  plaintiff  to  recover,  and  the  case  was  for  the  jury  and  a  ver- 
dict for  the  plaintiff  will  be  sustained. 

2.  In  such  case  it  could  not  be  successfully  contended  on  motion 
for  judgment  non  obstante  veredicto  that  the  receipt  was,  at  any 
rate,  in  full  for  all  coal  mined  during  the  month  of  November, 
1912,  and  that  the  verdict  of  the  jury  included  $500  for  royalty  on 
coal  mined  during  that  month,  and  was  erroneous  to  that  extent, 
where  it  was  not  clear  from  the  record  that  the  jury  included  such 
item  in  their  verdict ;  if  the  jury  had  included  such  item  the  proper 
method  for  correction  thereof  was  by  a  motion  for  a  new  trial. 

d.  In  such  case  the  complaint  cannot  be  made  that  the  trial 
judge  did  not  sufficiently  instruct  the  jury  as  to  the  proper  effect 
to  be  given  to  the  receipt  where  the  question  of  the  effect  of  the 
receipt  did  not  appear  to  have  been  raised  upon  trial,  and  it  did 
appear  that  plaintiff's  counsel  presented  thirteen  points  for  charge 
but  none  of  them  related  to  the  receipt. 

4.  Assignments  of  error  covering  questions  not  included  in  the 
statement  of  questions  involved  will  not  be  considered  on  appeal. 

Argued  Oct  16,  1917.  Appeal,  No.  160,  Oct.  T.,  1917, 
by  defendants,  from  judgment  of  C.  P.  Allegheny  Co., 
Oct.  T.,  1915,  No.  630,  on  verdict  for  plaintiff  in  case  of 
Pittsburgh  Block  Coal  Company,  a  Corporation,  v.  Oli- 
ver Coal  Company,  a  Corporation,  and  Maryland  Casu- 
alty Company,  a  Corporation.  Before  Brown,  C.  J., 
PoTTBB,  MoscHZiSKBB,  Frazbb  and  Walung,  JJ.  Af- 
firmed. 

Assumpsit  on  bond.    Before  Rbid,  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 


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292  PITTSBURGH  B.  C.  CO.  v.  OLIVER  C.  CO.,  Appel. 

Verdict— Cpinijn  of  the  Court.  [259  Pa. 

Verdict  for  plaintiff  for  |2,350.67  and  judgment  there- 
on.   Defendants  appealed. 

Errors  assigned,  among  others,  were  charge  of  court 
and  in  refusing  defendants'  motion  for  judgment  non 
obstante  veredicto. 

'Arthur  E.  Youngs  with  him  Johnston  d  Rose,  for  ap- 
pellants.— To  recover,  plaintiff  is  bound  to  overcome  the 
receipt  by  precise  and  convincing  or  satisfactory  evi- 
dence: Harris  v.  Hay,  111  Pa.  562;  Rhoads's  Est,  189 
Pa.  460;  MacDonald  v.  Piper,  193  Pa.  312;  Chapman 
V.  Railroad  Company,  7  Philadelphia  204;  Hopkins  v. 
Wise,  33  Pa.  Superior  Ct.  544 ;  Paige  v.  Paige,  53  Pa. 
Superior  Ct.  311;  Daly  v.  Dallmeyer,  20  Pa.  Superior 
Ct.  366;  Cooper  v.  Cooper,  60  Pa.  Superior  Ct.  390; 
Guhl  V.  Frank,  23  Pa.  Superior  Ct.  531;  Estate  of 
Young,  16  Philadelphia  215;  Elliott  v.  Curry,  1  Phila- 
delphia 281 ;  Saving  Fund  v.  Marks,  3  Philadelphia  278. 

The  only  evidence  adduced  by  plaintiff  to  overcome  the 
receipt  in  full  was  the  uncorroborated  testimony  of  its 
president,  who  signed  the  receipt.  His  testimony  was 
not  clear  or  precise,  convincing  or  satisfactory. 

The  court  erred  in  failing  to  instruct  the  jury  as  to 
the  legal  effect  of  the  plaintiff's  receipt. 

It  was  impossible  for  counsel  for  defendant  at  the 
close  of  the  court's  charge,  even  at  the  court's  suggestion, 
to  have  cured  the  many  and  manifest  errors  in  the  same 
by  requesting  further  instructions:  Reber  v.  Schitler, 
141  Pa.  640;  Peirson  v.  Duncan,  162  Pa.  187;  Pennsyl- 
vania Canal  Co.  v.  Harris,  101  Pa.  80 ;  Garrett  v.  Gonter, 
42  Pa.  143 ;  Washington  Mutual  Fire  Insurance  Co.  v. 
Rosenberger,  3  W.  N.  C.  16. 

W.  A.  Griffith,  of  Griffith  d  Kennedy,  with  him  Ralph 
Strawhridge,  for  appellee. 

Opinion  by  Mb.  Justice  Potted,  January  7, 1918 : 
This  was  an  action  of  assumpsit  brought  by  the  Pitta- 


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PITTSBURGH  B.  C.  CO.  v.  OLIVER  C.  CO.,  Appel.  293 
1918.]  Opinion  of  the  Court. 

burgh  Block  Coal  CompaBy  against  Oliver  Coal  Com- 
pany and  Maryland  Casualty  Company  to  recover  upon 
a  bond  given  by  defendants,  as  principal  and  surety  re- 
spectively, to  plaintiff.  The  condition  of  the  bond  re- 
quired faithful  performance,  by  the  Oliver  Coal  Com- 
pany, of  the  terms  of  a  lease  for  certain  coal  property, 
and  the  payment  of  the  royalty  upon  the  coal  actually 
mined  therefrom.  In  its  amended  statement,  plain- 
tiff claimed  a  balance  of  |2,416.10  for  unpaid  royalties 
on  coal  actually  mined  under  the  lease  by  defendant. 
Liability  was  denied  upon  the  ground  that  all  royalty 
upon  coal  actually  mined  had  beai  paid,  and  certain 
other  defenses  were  set  up,  with  which  we  are  not  here 
ccmcemed,  as  they  are  not  included  in  the  statement  of 
questions  involved.  Upon  the  trial,  requests  for  binding 
instructions  for  defendants  generally,  and  for  the  surety 
company  separately,  were  refused,  and  the  case  was 
submitted  to  the  jury,  who  found  a  verdict  for  the  full 
amount  of  the  txmd  with  interest.  Defendants  have  ap- 
pealed, and  their  counsel  have  confined  their  argument 
to  the  effect  to  be  given  to  a  certain  receipt,  and  to  the 
evidence  relating  to  it.  The  receipt  was  given  by  the 
plaintiff  company  to  Mr.  Ewing  as  trustee  of  certain  in- 
surance money.  It  was  offered  in  evidence  and  is  as 
follows : 

"Pittsburgh,  Pa.,  2/18, 1913. 
"Received  of  John  K.  Ewing,  Jr.,  Trustee,  One  Thou- 
sand seventy-five  Dollars  in  payment  as  follows:  By 
direction  of  Oliver  Coal  Co.  for  its  account :  f  376.27  Bal. 
Nov.  1912  royalty;  f344.30  on  1912.  Minimum  under 
lease,  |279.53  for  Jany.  1913  royalty;  |75  for  boiler 
tube  cleaner. 

"11,075.00.  "PiTTSBDEGH  BLOCK  COAL  CO., 

"Jno.  K.  Ewing,  Jb." 

Mr.  Ewing  was  presidait  and  treasurer  of  the  plaintiff 
company.  On  December  1,  1912,  a  fire  occurred  on  the 
leased  premises,  and  the  insurance  company  paid  the 
amount  of  the  loss  by  check  to  the  joint  order  of  lessor 


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294  PITTSBURGH  B.  C.  CO.  v.  OLIVER  C.  CO.,  Appel. 

Opinion  of  the  Court.  L^^^  1*»- 

and  lessee.  Before  the  latter  would  endorse  the  check 
it  required  a  trusteeship  to  be  established  with  Ewing 
as  trustee.  The  receipt  in  question  represented  the  dis- 
position of  a  part  of  the  insurance  money  by  the  trustee. 
Ewing  testified  that  it  was  given  in  the  office  of  Dr. 
Johnston,  president  of  the  Oliver  Coal  Company,  in  the 
presence  of  Johnston  and  of  Dr.  Mclntyre,  its  treasurer 
and  general  manager,  and  that  it  was  written  out  in  ac- 
cordance with  their  directions.  Ewing  further  testified 
that  the  receipt  was  not  intended  as  a  receipt  in  full,  but 
that,  at  the  time  it  was  given,  there  was  overdue  from  the 
Oliver  Coal  Company  to  the  plaintiff  company  some  f 2,- 
600  for  coal  actually  mined.  It  will  be  noted  that  the 
receipt  was  not  given  to  the  Oliver  Coal  Company,  but 
was  given  by  plaintiff  to  Ewing,  as  trustee  of  the  insur- 
ance money,  and  by  way  of  accounting  for  the  distribu- 
tion by  the  trustee  of  that  much  of  the  fund.  Nor  does 
the  receipt  purport  to  be  in  full  for  all  royalties  for  coal 
mined  at  the  time  it  was  written,  but  only  for  the  balance 
of  November,  1912,  royalty.  Counsel  for  plaintiff  offered 
in  evidence  the  fifth  paragraph  of  its  amended  statement 
of  claim,  which  is  as  follows :  "5.  That  beginning  with 
the  month  of  May,  1912,  and  ending  with  the  month  of 
January,  1914,  both  inclusive,  the  said  Oliver  Coal  Com- 
pany mined  and  removed  from  the  said  premises  a  total 
of  105,702.31  tons  of  coal,  wherein  and  whereby  it  became 
indebted  to  the  plaintiff  in  the  total  sum  of  |10,570.23, 
at  the  rate  of  ten  cents  per  ton ;  that  during  the  same 
period  said  Oliver  Coal  Company  paid  to  the  plaintiff 
on  account  thereof  the  sum  of  f8,154.13,  leaving  a  bal- 
ance due  of  12,416.10  for  coal  actually  mined."  Objec- 
tion by  counsel  for  defendant  to  this  offer  was  overruled 
upon  the  ground^  that  this  paragraph  of  the  statement 
was  not  specifically  or  sufficiently  denied  in  the  affidavit 
of  defense,  and  the  overruling  of  the  objection  is 
not  assigned  as  error.  In  view,  therefore,  xA  what 
must  be  regarded  as  an  admission  in  the  pleadings, 
that  12,416.10  was  due  for  royalties  for  coal  actual- 


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PITTSBURGH  B.  C.  CO.  v.  OLIVERjC.  CO.,  AppeL  295 
1918.]  Opinion  of  the  Court 

]j  mined,  and  the  fact  that  the  receipt  by  its  terms  re- 
lates only  to  the  balance  of  November,  1912,  royalty,  the 
trial  judge  could  not  properly  have  ruled  that  the  receipt 
was  conclusive  of  the  right  of  plaintiff  to  recover,  nor 
could  he  have  taken  the  case  from  the  jury. 

Counsel  for  appellants  argue  that  the  receipt  was,  at 
any  rate,  in  full  for  all  coal  mined  during  the  month  of 
November,  1912,  and  that,  as  the  verdict  of  the  jury  in- 
cluded f500  for  royalty  on  coal  mined  during  that 
month,  it  was  erroneous  to  that  extent.  But  it  is  not 
clear  from  the  record  that  the  jury  included  in  their 
verdict  fSOO  of  unpaid  royalty  for  coal  mined  in  the 
month  of  November,  and,  even  if  they  did,  that  would  be 
a  matter  for  correction  upon  a  motion  for  a  new  trial, 
and  would  be  no  reason  for  binding  instructions  in  favor 
of  defendants,  which  would  prevent  the  recovery  of  any 
amount  by  plaintiff.  Counsel  further  contend  that,  if 
the  receipt  be  construed  as  being  in  full  for  November, 
it  would  also  be  prima  facie  evidence  that  all  amounts 
due  for  prior  royalties  had  been  paid  Conceding  this, 
there  was  ample  evidence,  as  noted  above,  to  rebut  any 
such  presumption. 

In  several  of  the  assignments  of  error  complaint  is 
made  that  the  trial  judge  did  not  in  his  instructions  to 
the  jury  give  sufficient  consideration  to  the  proper  effect 
to  be  given  to  the  receipt.  Whether  he  did  or  not,  it  ap- 
pears that  counsel  for  defendants  presented  thirteen 
points  requesting  instructions  to  the  jury,  and  in  none  of 
them  was  any  instruction  requested  in  regard  to  the  re- 
ceipt, its  legal  effect,  or  the  evidence  necessary  to  over- 
come it.  And  when  at  the  close  of  the  charge  the  trial 
judge  asked  counsel  if  they  wished  any  further  instruc- 
tions to  be  given  to  the  jury,  they  said,  "no.*' 

The  question  of  the  effect  of  the  receipt  does  not  seem 
to  have  been  raised  upon  the  trial,  nor  in  defendants' 
motion  and  reasons  for  a  new  trial,  which  were  filed  Feb- 
ruary 8,  1917,  but  it  was  first  raised  in  their  additional 
reasons  in  support  of  the  motion  for  a  new  trial  filed  on 


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296  PITTSBURGH  B.  C.  CO.  v.  OLIVER  C.  CO.,  Appel. 

Opinion  of  the  Court.  [259  Pt. 

June  21,  1917,  more  than  five  months  afterward.  This 
matter  seems  to  have  been  entirely  an  afterthought, 
which  came  too  late.  In  Moyer  v.  Penna.  R.  R.  Co., 
247  Pa.  210,  we  said  (p.  217) :  *^The  remaining  assign- 
ment alleges  error  in  the  instruction  given  as  to  the  meas- 
ure of  damages.  No  special  instructions  on  this  branch 
of  the  case  wei'e  asked  for,  and  those  given  were  not  com- 
plained of  at  the  time,  though  full  opportunity  was  given 
counsel  to  indicate  wherein  in  their  judgment  they  came 
short,  or  were  for  any  reason  unsatisfactory.  We  are 
not  convinced  that  any  error  was  committed;  the  in- 
structions were  perhaps  open  to  the  criticism  that  a 
fuller  discussion  of  the  subject  by  the  court  migtft  have 
been  helpful  to  the  jury,  but  this  either  side  could  have 
had  upon  request.  It  is  too  late  now  to  make  complaint." 
And  again  in  Fern  v.  Penna.  R.  R.  Co.,  250  Pa.  487,  we 
said  (p.  495) :  "The  criticism  by  the  appellant  as  to  the 
insufficiency  of  the  charge  on  the  question  of  damages 
cannot  be  sustained.  What  was  said  by  the  court  may 
not  have  been  entirely  adequate  but  it  was  not  erroneous. 
The  inadequacy  of  the  charge  cannot  be  regarded  as  re- 
versible error,  in  view  of  the  fact  that  in  reply  to  the 
court's  inquiry  whether  any  further  instructions  were 
required  counsel  expressed  themselves  as  fully  satisfied 
with  the  charge." 

Several  other  assignments  of  error,  which  are  to  por- 
tions of  the  charge,  seek  to  raise  questions  not  included 
in  the  statement  of  questions  involved.  They  were  not 
argued  by  counsel  for  appellants,  and  they  call  for  no 
consideration  here.  A  careful  examination  of  the  record 
and  of  all  the  testimony,  has  satisfied  us  that  the  case 
was  properly  submitted  to  the  jury,  in  a  correct  and  ade- 
quate charge,  and  that  the  verdict  was  justified  by  the 
evidence. 

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


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ROHRER,  Appel.,  v.  TRAPPORD  REAL  ESTATE  CO.  297 
1918.]  Syllabus— Statement  of  FaeU. 


Kohrer,  Appellant,  v.  Traflford  Real  Estate 
Company. 

Eeal  estate  —  Deeds  —  Building  restrictions  —  "Single  dwelling 
house"  on  each  lot — Erection  of  duplex  building  or  apartment  house 
— Bill  in  equity — Dismissal. 

1.  Covenants  restraining  a  man  in  the  free  enjoyment  of  his 
property  are  not  to  be  extended  by  implication. 

2.  The  building  of  a  duplex  building  or  apartment  house  is  not  a 
violation  of  a  restriction  limiting  the  owner  to  one  dwelling  house 
upon  a  lot,  the  test  being  whether  the  building  is  a  single  structure 
intended  for  dwelling  purposes  and  not  whether  it  was  intended  to 
house  more  than  one  family. 

3.  Where  the  conveyance  of  a  lot  of  ground  from  defendant  to 
plaintiff  contained  a  building  restriction  that  but  "a  single  dwelling 
house"  should  be  erected  on  the  lot,  and  also  a  covenant  that  like 
restrictions  should  be  imposed  in  any  other  conveyance  of  property 
made  by  the  defendant  in  the  district  mentioned,  and  thereafter 
conveyances  of  other  lots  were  made  by  defendant  with  the  pro- 
vision that  the  restriction  should  not  be  construed  to  prohibit  the 
erection  of  a  duplex  dwelling  or  apartment  house,  plaintiff's  bill 
in  equity  for  the  enforcement  of  the  building  restriction,  on  the 
ground  that  a  duplex  dwelling  or  apartment  house  was  not  *^a 
single  dwelling  house*'  within  the  meaning  of  the  covenant  of  his 
deed,  was  properly  dismissed. 

Argued  Oct.  18,  1917.  Appeal,  No.  183,  Oct.  T.,  1917, 
by  plaintiff,  from  decree  of  C.  P.  Allegheny  Co.,  Jan.  T., 
1916,  No.  836,  in  equity,  refusing  relief  on  bill  in  equity 
to  enforce  building  restrictions  in  case  of  Frederick  F. 
Rohrer  v.  Trafford  Real  Estate  Company,  a  Corporation. 
Before  Bhown,  C.  J.,  Potter,  Moschzisker,  Frazer  and 
Waluno,  JJ.    Affirmed. 

Bill  in  equity  to  secure  enforcement  of  building  re- 
strictions.   Before  Evans,  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 
The  lower  court  dismissed  the  bill.    Plaintiff  appealed. 


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298  ROHREtt,  Appel.,  v,  TRaFB^ORD  REAL  ESTATE  CO. . 
Assigiimeut  of  Error — Opiuiou  of  the  Court.  [259  Pa. 
Error  assigned,  among  others^  was  iu  dismissing  the 
bill. 

U.  O.  Vogan,  for  appellant. — The  words  "single  dwell- 
ing house"  as  applied  to  a  building  restriction  do  not 
include  an  apartment  house:  Harris  v.  Roarback,  100 
N.  W.  391;  Bagnall  v.  Young,  114  N.  W.  674;  Schadt  v. 
Brill,  173  Mich.  647;  Powers  v.  Radding,  113  N.  E.  782; 
Brigham  v.  H.  J.  Mulock  Co.,  .74  N.  J.  E.  287;  Gillis  v. 
Bailey,  21  N.  H.  149;  Hutchinson  v.  Ulrich,  145  111.  330. 

John  O,  Buchanan,  with  him  Gordon  d  Smith,  for  ap- 
pellees.— ^An  apartment  house  or  duplex  dwelling  is  "a 
single  dwelling  house''  within  the  meaning  of  a  building 
restriction:  St  Andrew's  Lutheran  Church's  App.,  67 
Pa.  512;  Johnson  v.  Jones,  244  Pa.  386;  Hamnett  v. 
Born,  247  Pa.  418;  McMurtry  v.  Phillips  Investment 
Co.,  103  Ky.  308;  Bonn  v.  Heilberg,  38  N.  Y.  App.  Div. 
515;  Kimber  v.  Adams,  1  Ch.  1900,  412. 

Opinion  by  Me.  Justice  Potter,  January  7, 1918 : 
The  plaintiff  purchased  from  the  defendant  a  lot  of 
ground,  and,  in  the  conveyance  to  him,  a  building  re- 
striction was  inserted,  which  provided  that  but  "a  single 
dwelling  house"  should  be  erected  on  the  lot.  There  was 
also  a  covenant  in  the  deed  that  like  restrictions  should 
be  imposed  in  any  other  conveyance  of  property  made 
by  defendant  within  the  district  mentioned.  Convey- 
ances of  such  lots  were  made  by  defendant,  however, 
with  a  provision  that  the  restriction  should  not  be  con- 
strued to  prohibit  the  erection  of  a  duplex  dwelling  or 
apartment  house  upon  the  lots  conveyed.  Claiming  that 
a  duplex  dwelling,  or  an  apartment  house,  was  not  "a 
single  dwelling  house,"  and  that  the  covenant  in  his  deed 
had,  therefore,  been  violated,  plaintiff  filed  this  bill  to 
secure  the  enforcement  of  the  building  restriction  in  ac- 
cordance with  his  contention.  The  court  below  dis- 
missed the  bill,  holding  that  the  question  is  ruled  by  the 


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BOHRER,  Appel.,  v.  TRAFPORD  REAL  ESTATE  CO.  299 
1D18.J  Opinion  of  the  Court. 

decision  of  this  court  in  Johnson  v.  Jones,  244  Pa.  386, 
in  which  it  was  held  that  an  apartment  house  was  prop- 
erly to  be  classified  as  a  dwelling  house,  and  by  the  de- 
cision in  Hamnett  v.  Born,  247  Pa.  418,  where  it  was  held 
that  a  "duplex  house"  could  fairly  be  regarded  as  "one 
dwelling  house."  We  can  see  no  distinction  in  principle 
between  the  question  determined  in  those  cases,  and  that 
which  is  here  involved.  The  building  here  proposed  is 
preciselj^  like  that  to  which  objection  was  made  in  Ham- 
nett V.  Born,  supra,  where  it  was  held  that  the  building 
of  a  duplex  dwelling  house  was  not  a  violation  of  a  re- 
striction limiting  the  owner  to  "one  dwelling  house'^ 
upon  the  lot.  The  fact  that  the  building  was  intended 
to  house  more  than  one  family  was  not  regarded  as  con- 
trolling in  the  determination  of  the  question,  for  as  the 
court  there  said :  "The  covenant  is  directed  against  the 
building  alone,  and  not  its  subsequent  use,  and  when  a 
building  is  lawfully  erected  on  either  of  the  lots,  so  far 
as  the  building  is  concerned,  the  covenant  is  at  an  end. 
The  fact  that  the  building  proposed  is  a  single  structure 
intended  for  dwelling  purposes  brings  it  within  what  is 
permitted  under  the  restriction ;  the  fact  that  it  is  in- 
tended to  accommodate  a  number  of  families,  does  not 
bring  it  within  what  is  forbidden." 

We  agree  with  the  court  below  that  the  stipulation 
was  for  a  single  house  or  structure,  and  not  for  a  house 
for  a  single  family ;  and  that,  if  the  latter  had  been  in- 
tended, it  would  have  been  easy  to  say  so.  "Covenants 
of  this  nature,  which  restrain  a  man  in  the  free  enjoy- 
ment of  his  property  are  not  to  be  extended  by  impli- 
cation" :  St.  Andrew's  Lutheran  Church's  App.,  67  Pa. 
512. 

The  assignments  of  error  are  overruled,  the  decree  of 
the  court  below  is  affirmed,  and  this  appeal  is  dismissed 
at  the  cost  of  appellant. 


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300  VAN  v.  RICHMOND  et  al.,  Appellants. 

Syllabus— Statement  of  Facts.  [259  Pa. 

Van  V.  Bichmond  et  al.,  Appellants. 

Muster  and  servant — BricJclayer — Fall  of  hrich  arch  on  workman 
— Assumption  of  risk — Contributory  negligence — Conflicting  evi- 
dence— Preponderance  of  evidence  with  defendant — Case  for  jury, 

1.  The  credibility  of  oral  testimony  is  for  the  jury. 

2.  Where  the  testimony  offered  by  the  plaintiff  makes  out  a 
prima  facie  case  by  showing  the  existence  of  facts  from  which  an 
inference  of  negligence  arises,  the  case  is  necessarily  for  the  jury, 
notwithstanding  that  the  great  preponderance  of  the  testimony  is 
with  the  defendant.  An  inference  of  negligence  having  once  arisen 
remains  until  overcome  by  countervailing  proof,  and  whether  it  is 
so  overcome  is  a  quest  ion.  for  the  jury. 

3.  In  an  action  against  building  contractors  to  recover  for  in- 
juries sustained  by  the  falling  of  a  brick  arch  on  a  workman,  where 
it  appeared  that  during  the  construction  of  the  building  plaintiff 
was  assigned  by  the  defendants  to  build  such  arch  on  a  supporting 
wooden  form  erected  by  defendants'  carpenters,  that  after  the  com- 
pletion of  the  arch  it  fell  on  the  plaintiff  causing  the  injuries  com- 
plained of,  and  the  evidence  was  conflicting  as  to  how  the  fall  of 
the  arch  was  occasioned,  plaintiff's  version  being  that  the  form 
had  been  removed  at  the  direction  of.  defendants'  foreman,  that 
plaintiff  had  complained  to  him  of  its  removal  but  that  the  fore- 
man had  assured  him  that  it  was  safe,  that  relying  upon  the  fore- 
man's forty  years'  exi>erience  plaintiff  continued  at  his  work  and 
three  quarters  of  an  hour  later  the  arch  fell,  while  defendants'  ver- 
sion was  that  the  form  had  not  been  removed  but  that  the  arch 
fell  by  reason  of  plaintiff's  placing  his  body  or  leg  over  it,  causing 
it  to  buckle,  and  that  plaintiff  had  admitted  thereafter  that  the  oc* 
currence  was  his  own  fault,  the  court  did  not  err  in  refusing  to 
charge  that  as  a  matter  of  law  plaintiff  had  assumed  the  risk. 

4.  In  such  case  the  court  did  not  err  in  refusing  to  charge  that 
the  duty  rested  on  the  plaintiff  to  establish  by  the  weight  of  evi- 
dence that  there  was  no  act  or  omission  on  his  part,  as  an  experi- 
enced bricklayer,  amounting  to  want  of  ordinary  care,  which  con- 
curred with  the  alleged  neglig^ice  of  the  defendants  in  causing 
the  injuiy. 

Argued  Oct.  18,  1917.  Appeal,  No.  79,  Oct.  T.,  1917, 
by  defendants,  from  judgment  of  C.  P.  Allegheny  Co., 
Jan.  T.,  1916,  No.  1848,  upon  verdict  for  plaintiff  in  case 


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VAN  V.  RICHMOND  et  al.,  Appellants.  301 

1918.]  Statement  of  Facts — Opinion  of  the  Court  below. 
of  J.  Wesley  Van  v.  Andrew  Richmond  and  John  L.  Rich- 
mond, Copartners,  trading  and  doing  business  as  A. 
Richmond  &  Son,  with  notice  to  W.  J.  Morrison,  Admin- 
istrators of  Andrew  Richmond,  deceased.  Before 
Brown,  C.  J.,  Pottbe,  Moschziskeb,  Fbazbb  and  Wal- 
UNG,  JJ.    Affirmed. 

Trespass  for  personal  injuries. 

The  facts  appear  from  the  following  opinion  by 
Brown,  J.,  sur  defendants'  motions  for  a  new  trial  and 
for  judgment  non  obstante  veredicto : 

Plaintiff,  a  bricklayer  employed  by  defendants  in 
building  a  residence,  brought  this  action  to  recover  dam- 
ages for  personal-  injuries  received  on  the  7th  of  August, 
1915 — injuries  to  his  arm,  back,  head  and  sight  and  hear- 
ing, causing  pain  and  suffering  and  loss  of  earnings  and 
impaired  power  to  work  and  to  earn. 

Plaintiff's  story,  as  told  by  himself  and  witnesses,  was : 
that  on  August  6,  1915,  carpenters — at  direction  of  de- 
fendants' foreman — having  put  in  place  a  supporting 
wooden  form,  he  built  thereon  a  brick  arch,  using  mortar 
furnished  by  defendants.  The  brick  arch  was  completed 
that  day — leaving  for  the  next  day  the  laying  of  brick 
on  the  sides  next  the  arch.  When  plaintiff  came  to  work 
on  the  morning  of  the  7th,  discovering  the  supporting 
wooden  form  had  been  taken  out,  at  the  direction  of  de- 
fendants' foreman,  he  complained  to  the  foreman  about 
the  question  of  safety ;  and  the  foreman  told  him  it  was 
safe — to  go  ahead  with  the  work ;  and  resting  upon  the 
superior  knowledge  of  the  foreman  of  forty  years'  ex- 
perience he  went  on  with  the  brick  work — at  the  sides 
next  the  arch ;  and  three-quarters  of  an  hour  later  the 
arch  buckled  and  fell,  striking  and  carrying  him,  and  the 
platform  on  which  he  was,  down  some  nine  or  ten  feet. 

Touching  this  question  of  safety — ^at  the  time  plaintiff 
went  to  work  the  morning  of  June  7th — ^we  quote  a  por- 
tion of  his  testimony: 


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302  VAN  V.  RICHMOND  et  al.,  Appellants. 

Opinion  of  Court  below.  [269  Pa. 

Q. — Before  you  went  to  work  did  you  say  anything  to 
Mr.  Briggs  (foreman)  about  the  safety  of  this  thing? 

A.— I  did. 

Q. — What  did  you  say  to  him? 

A. — I  told  him  it  was  not  safe,  and  he  promised  to  get 
a  prop  and  put  it  up  there  to  save  it  from  falling. 

Q. — Save  what  from  falling? 

A. — The  arch  from  buckling.  It  didn't  look  safe  to 
me,  and  I  mentioned  it  to  him. 

Q. — Did  he  think  it  was  safe? 

A. — Yes,  sir ;  he  told  me  it  was  safe  and  I  relied  on  his 
word  for  it  to  be  safe. 

Q. — Then  did  he  tell  you  to  go  to  work? 

A. — Yes,  sir. 

Q. — Instructed  you  to  go  to  work  did  he? 

A. — Yes,  sir. 

Q. — ^And  told  you  it  was  safe? 

A. — Yes,  sir. 

Q. — Was  there  anything  about  it  that  locAed  as  though 
the  thing  would  fall  immediately? 

A. — ^Well,  it  didn't  look  just  right. 

9. — It  wasn't  cracked,  was  it? 

A. — No,  sir. 

Q. — And  didn't  look  as  though  it  was  going  to  fall  that 
instant? 

A. — No,  sir. 

Q. — Looked  as  though  it  might  hold  itself  for  awhile? 

A. — ^Yes,  sir. 

Q.— How  long  did  it  hold  itself? 

A. — ^About  three-quarters  of  an  hour. 

Q. — ^After  you  started  to  work? 

A. — ^Yes,  sir. 

Q. — What  caused  that  thing  to  break? 

A.— It  buckled. 

It  will  be  observed  by  this  testimony  that  plaintiff — 
awaiting  fulfillment  of  the  foreman's  promise  to  put  up 
props,  to  support  the  arch — ^was  not  working  under  nor 
in  front  of  the  arch,  but  at  the  side,  laying  and  building 


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VAN  V.  RICHMOND  et  al.,  AppeUants.  303 

1918.]  Opinion  of  Court  below. 

up  the  brick  work;  and  therefore  not  exposing  himself 
under  nor  in  front  of  the  arch. 

Defendant's  story,  as  told  by  their  witnesses,  was: 
that  the  supporting  wooden  arch  had  not  been  taken  out 
by  the  carpenters,  nor  directed  to  be  taken  out,  as  al- 
leged by  plaintiff;  that  plaintiff  was  not  working  on 
brick  construction  at  the  sides  of  the  arch — at  the  time 
of  the  accident,  but  just  preceding  the  accident,  had 
placed  his  body  or  leg  over  the  arch,  causing  it  instantly 
to  buckle  and  fall. 

Plaintiff  denied  placing  his  body  or  leg  over  the  arch. 

Some  of  the  defendant's  witnesses  testified  to  plain- 
tiff's admission,  on  several  occasions,  that  the  injury  was 
all  his  own  fault,  and  nobody  to  blame  but  himself. 
Plaintiff  alleged  the  admissions  were  due  to  fear  that  he 
might  not  be  employed  or  able  to  get  work. 

The  credibility  of  the  testimony — ^all  oral — was  for  the 
jury:  Lindemann  v.  Pittsburgh  Railways  Co.,  251  Pa. 
489 ;  Anderson  v.  Railways  Co.,  251  Pa.  517.  Credibility 
is  the  touchstone  of  testimony  in  the  measure  of  its 
weight.  As  said  by  Mr.  Justice  Fell,  in  Ranch  v.  Smed- 
ley,  208  Pa.  175,  176,  and  by  Mr.  Justice  Stewart  in 
Simons  v.  Philadelphia  &  Reading  Ry.  Co.,  254  Pa.  507- 
509: 

"Where  the  testimony  offered  by  the  plaintiff  makes 
out  a  prima  facie  case  by  showing  the  existence  <rf  facts 
from  which  an  inference  of  negligence  arises,  the  case  is 
necessarily  for  the  jury,  notwithstanding  that  the  great 
preponderance  of  the  testimony  is  with  the  defend- 
ant. An  inference  of  negligence  having  once  arisen  re- 
mains until  overcome  by  countervailing  proof,  and 
whether  it  is  so  overcome  is  a  question  for  the  jury.^' 

The  charge  presented  to  the  jury :  The  issues  of  fact 
to  be  passed  on  by  it ;  the  method  of  weighing  and  meas- 
uring testimony — lay  and  expert ;  the  duty  of  determin- 
ing the  nature  and  extent  of  plaintiff's  injuries — ^nervous 
and  physical ;  and  the  measure  of  damages.  And  its  at- 
tention was  drawn  to  the  duty  resting  upon  an  employer 


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304  VAN  v.  RICHMOND  et  al.,  Appellants. 

Opinion  of  Court  below.  [259  Pa. 

to  furnish  his  employee  with  a  reasonably  safe  place  to 
work  and  proper  tools  and  appliances ;  and  upon  an  em- 
ployee not  to  be  careless  of  himself  in  the  line  of  his  work. 
Its  attention  was  also  drawn  to  the  question  of  plaintifTs 
equal  or  unequal  knowledge  of  the  danger — and  whether 
he  acted  and  had  the  right  to  act  upon  the  superior 
knowledge  of  the  foreman  of  forty  years'  experience : 
Molesky  v.  South  Fork  Coal  Mining  Co.,  247  Pa.  434. 

The  reasons  assigned  by  defendants  for  a  new  trial 
are: 

1.  The  verdict,  in  said  case  is  contrary  to  the  evidence. 

2.  The  verdict  in  said  case  is  contrary  to  the  weight 
of  the  evidence. 

3.  The  verdict  in  said  case  is  contrary  to  law. 

4.  The  court  erred  in  refusing  defendants'  second, 
sixth,  twelfth,  thirteenth,  fourteenth  and  fifteenth  points 
submitted. 

Defendants'  second,  sixth,  twelfth,  thirteenth,  four- 
teenth and  fifteenth  points — with  the  answers  of  the 
court  thereto — are  as  follows : 

"Second :  If  the  jury  believe  that  plaintiff  was  direct- 
ed by  defendants'  foreman  to  continue  his  work  at  the 
arch  after  the  form  was  removed  before  sufficient  sup- 
port had  been  placed  under  the  arch,  and  plaintiff  con- 
tinued his  work  as  a  brick  mason,  notwithstanding,  he 
assumed  the  risk  involved  and  therefore  cannot  recover. 

By  the  Court:  As  a  whole,  this  point  is  refused  be- 
cause it  involves  an  issue  of  fact  to  be  passed  on  by  the 
jury — an  issue  of  fact  covered  by  the  general  charge. 

Sixth :  Plaintiff  must  establish  by  the  weight  of  evi- 
dence that  there  was  no  act  or  omission  on  his  part  as 
an  experienced  bricklayer,  amounting  to  a  want  of  ordi- 
nary care,  which  in  concurrence  or  cooperation  with  the 
alleged  negligence  of  defendants  was  the  proximate 
cause  or  occasion  of  the  injury. 

By  the  Court:  This  point  is  refused,  because  the  bur- 
den of  establishing  plaintiflPs  acts  of  omission — want  of 
care — is  on  the  defendant. 


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VAN  V.  RICHMOND  et  al.,  AppeUants.  305 

1918.]  Opinion  of  CJourt  below. 

Twelfth:  If  the  jury  believe  that  plaintifiF  just  before 
the  accident  could  have  proceeded  with  his  work  of  lay- 
ing up  brick  in  against  the  wall  without  first  building  the 
•temporary  or  foot  staging^  the  breaking  of  which  by  the 
fall  of  brick  from  the  arch  caused  him  to  fall,  he  was 
guilty  of  contributory  negligence  and  cannot  recover. 

By  the  Court:  Refused. 

Thirteenth :  It  appearing  by  a  preponderance  of  testi- 
mony that  plaintiff  admitted  on  numerous  occasions 
afterwards  that  the  accident  was  caused  by  his  own  care- 
lessnesSy  as  testified  to  by  Addison  Brieges  or  Briggs, 
John  Cornyn,  Sr.,  John  Comyn,  Jr.,  Solomon  Wensel 
and  John  L.  Richmond,  the  jury  should  be  instructed  to 
find  for  the  defendants. 

By  the  Court:  Refused. 

Fourteenth:  It  appearing  from  uncontradicted  evi- 
dence that  plaintiff  could  have  proceeded  to  point  up  the 
courses  of  the  pier  by  standing  upon  a  ladder,  placed 
upon  the  outside  of  the  pier,  his  failure  to  do  so  consti- 
tutes contributory  negligence  and  is  a  bar  to  his  recov- 
ery. 

By  the  Court:  Refused. 

Fifteenth :  That  under  all  the  evidence  in  the  case  the 
court  should  direct  that  the  jury  render  its  verdict  in 
favor  of  the  defendants. 

By  the  Court:  Refused. 

We  cannot  say  that  the  verdict  is  contrary  to  the  evi- 
dence, the  weight  of  the  evidence,  and  the  law. 

In  the  light  of  (a)  the  disputed  issues  of  fact  and  (b) 
the  law — ^as  outlined  in  the  charge — we  think  no  substan- 
tial error  was  committed  by  the  court  in  its  answers  to 
defendants'  points. 

Close  as  the  case  was  upon  its  conflicting  testimony  it 
raised  issues  of  fact  upon  which  the  jury  alone  had  power 
to  pass  and  decide. 

Believing  that  a  fair  trial  was  had  the  motions  for 
judgment  non  obstante  veredicto  and  for  a  new  trial  are 
refused. 

Vol.  cclix — 20 


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306  VAN. v.  RICHMOND  et  al.,  Appellants. 

Opinion  of  the  Court.  [259  Fa. 

J.  Boyd  Duff,  of  J.  Boyd  Duff  d  San,  with  him  Packer 
d  Sherrard,  for  appellants. 

Stephen  Stone,  of  Stone  d  Stone,  with  him  J.  Thomas 
Hoffman,  for  appellee. 

Pbb  Curiam,  January  7, 1918 : 

The  judgment  in  this  case  is  affirmed  on  the  opinion  of 
the  learned  court  below  denying  the  motions  for  a  new 
trial  and  for  judgment  non  obstante  veredicto. 


Kennedy  et  al.,  Appellants,  v.  Meyer  et  al. 

Constitutional  law  —  Constitution  of  Pennsylvania,  Art.  Ill, 
Sees.  7  and  11,  Art.  IX,  Sec.  7,  and  Art.  I,  Sec.  1 — Declaration  of 
Rights — Local  and  special  laws  —  Gratuities  —  Contractors  —  En- 
croachment on  judicial  prerogatives — Counties — Contracts — Work 
done  under  wiconstitutional  act — Curative  act—rConstitutionality — 
Acts  of  May  11, 1909,  P.  L.  506,  and  April  20, 1917,  P.  L.  90-^tat' 
utes — Construction — Bill  in  equity — Injunction — Dismissal. 

1.  All  presumptions  roust  be  drawn  in  favor  of  the  validity  of  an 
act  and  the  propriety  of  the  legislative  intention. 

2.  The  courts  ore  loath  to  hold  curative  acts  to  be  special  or 
local  legislation  when  they  are  drawn  to  apply  to  all  persons,  things 
or  subjects  affected  by  the  conditions  to  be  remedied. 

3.  Where  an  act  relating  to  counties  in  terms  applies  to  all 
counties  in  the  State,  it  is  presumptively  a  general  statute. 

4.  Where  the  legislature  has  power  to  enact  the  substance  of  the 
matter  covered  by  a  statute  which  has  been  declared  void  because 
unconstitutional  in  form,  it  may  subsequently  ratify  and  make 
legal  anything  done  under  the  prior  void  legislation  which  it  might 
previously  have  authorized  in  due  form.  The  authority  of  the  leg- 
islature to  ratify  whatever  it  might  have  authorized  is  beyond  ques- 
tion. 

5.  The  Act  of  April  20,  1917,  P.  L.  90,  providing  that  whenever 
any  county  has  entered  into  a  contract  for  the  construction  of  a 
public  highway  bridge  or  tunnel  and  the  same  has  been  completed 
in  whole  or  in  part,  but  (the  county)  was  without  power  to  pay 
for  th^  woi^  whjch  had  been  actually  done  (because  the  iict  under 


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KENNEDY  et  al.,  Appellants,  v.  SIEYER  et  al.      307 
1918.]  Syllabus. 

which  such  work  was  done  bad  been  declared  unconstitutional), 
Bucb  contract  is  valid  and  binding  on  the  county  to  the  extent  only 
that  such  work  and  construction  was  done  or  made  prior  to  the 
date  on  which  said  act  was  declared  unconstitutional,  and  provid- 
ing for  the  payment  of  such  work  from  the  county  treasury,  is  not 
a  local  or  special  law  in  violation  of  Article  III,  Section  7,  of  the 
Constitution  and  is  valid. 
Sample  v.  Pittsburgh,  212  Pa.  533,  distinguished. 

6.  The  Act  of  1917  does  not  ofFend  against  Article  m.  Section 
11,  of  the  Constitution,  prohibiting  legislation  giving  extra  com- 
pensation to  any  public  officer  or  contractor  after  services  shall 
have  been  rendered  or  contract  made  or  providing  for  the  payment 
of  any  claim  against  the  Commonwealth  without  previous  au- 
thority of  law,  since  such  act  applies  to  counties  and  not  to  claims 
against  the  Commonwealth,  and  makes  no  provision  for  extra  com- 
pensation but  merely  for  compensation  for  work  not  paid  for, 

7.  The  Act  of  1917  does  not  treat  the  obligations  with  which  it 
deals  as  gratuities,  such  as  contemplated  by  the  constitutional  in- 
hibition in  Article  IX,  Section  7,  of  the  Constitution,  but  as  moral 
obligations  that  have  ceased  to  be  legal  ones  merely  because  of  de- 
fects in  the  statute  which  authorized  them. 

8.  The  legislature  may  impose  a  tax  to  pay  the  expense  of  a 
public  improvement  which  had  been  made  under  invalid  authority, 
and  an  assessment  for  that  purpose,  or  payment  for  such  improve- 
ment from  the  moneys  of  the  public  treasury  raised  by  general 
taxation  or  otherwise,  is  not  a  taking  or  deprivation  of  property, 
and  the  Act  of  1917  is  not  therefore  violative  of  Article  I,  Section 
1,  of  the  Constitution. 

9.  The  Act  of  1917  is  a  curative  act  and  does  no  more  than  to 
effectively  authorize  (within  the  restrictions  of  the  statute)  what 
had  previously  been  defectively  authorized  by  the  Act  of  May  11, 
1909,  P.  L.  606,  and  does  not  attempt  to  decide  any  judicial  ques- 
tion, and  is  not  an  assimiption  by  the  legislature  of  judicial  powers. 

10.  County  commissioners  entered  into  a  contract  under  au- 
thority of  the  Act  of  May  11,  1909,  P.  L.  506,  for  the  construction 
of  a  public  highway  tunnel.  Before  the  completion  of  the  work 
the  Act  of  1909  was  declared  unconstitutional  by  the  Supreme 
Court  by  reason  of  insufficiency  of  its  title.  After  the  passage  of 
the  curative  Act  of  April  20,  1917,  P.  L.  91,  a  taxpayer's  bill  was 
filed  to  enjoin  payment  to  the  contractor  for  work  done  on  such 
tunnel  prior  to  the  date  on  which  the  Act  of  1909  was  declared  un- 
constitutional, on  the  ground  that  the  Act  of  1917  was  unconstitu- 
tional.   Held,  the  bill  was  properly  dismissed. 


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308      KENNEDY  et  al.,  Appellants,  v,  MEYER  et  al. 

Statement  of  Facts — ^Arguments.  [259  Pa. 

Argued  Oct.  15, 1917.  Appeal,  No.  144,  Oct.  T.,  1917, 
by  plaintiffs,  from  decree  of  C.  P.  Allegheny -Co.,  July  T., 
1917,  No.  838,  in  equity,  dismissing  bill  in  equity  for  in- 
junction in  case  of  Julian  Kennedy,  Oliver  McClintock 
and  Harry  H.  Willock,  Citizens  and  Taxpayers  of  Alle- 
gheny County,  V.  Gilbert  F.  Meyer,  Addison  C.  Gumbert, 
and  Frank  J.  Harris,  Commissioners  of  Allegheny  Coun- 
ty ;  John  P.  Moore,  Comptroller  of  Allegheny  County ; 
Iklward  D.  Friebertshauser,  Treasurer  of  Allegheny 
County,  and  Booth  &  Flinn,  Ltd.  Before  Brown,  C.  J., 
PoTTBU,  MoscuziSKBR,  Frazbb  and  Walung,  JJ.  Af- 
firmed. 

Bill  in  equity  against  county  commissioners  and  coun- 
ty treasurer  to  restrain  payment  to  contractor  on  claim 
founded  on  the  Act  of  April  20,  1917,  P.  L.  90.     Before 

SWEARINQEN,  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 
The  lower  court  sustained  defendants'  demurrer  and 
dismissed  the  bill.     Plaintiffs  appealed. 

Error  aaaigned,  among  others,  was  in  dismissing  the 
bill. 

Ernest  C  Irwin,  with  him  Watson  A  Freeman,  for  ap- 
pellants.— The  Act  of  1917  is  void  as  being  an  assump- 
tion of  judicial  powers  by  the  legislature :  Swartz  v. 
Carlisle  Borough,  237  Pa.  473;  Marshall  Avenue,  213 
Pa.  516;  Hewitts'  App.,  88  Pa.  55;  Donley  v.  City  of 
Pittsburgh,  147  Pa.  348;  Wyoming  Street,  139  Pa.  494; 
People  V.  Board  of  Supervisors,  26  Mich.  22 ;  Felix  v. 
County  Commissioners,  62  Kansas  832;  The  Mayor  & 
City  Council  of  Bait.  v.  Horn,  26  Md.  194;  Forster  v. 
Forster,  129  Mass.  559;  DeChastellux  v.  Fairchild,  15 
Pa.  18;  Lambertson  &  McClelland  v.  Hogan,  2  Pa.  22; 
Greenough  v.  Greenough,  11  Pa.  489 ;  Reiser  v.  The  Wil- 
liam Tell  Saving  Fund  Association,  39  Pa.  137. 


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KENNEDY  et  al.,  Appellants,  v.  MEYER  et  al.  309 
1918.]  Arguments. 

The  Act  of  1917  violates  Article  III,  Section  11,  of  the 
Constitution. 

The  Act  of  1917  is  violative  of  Article  IX,  Section  7, 
of  the  Constitution :  Kreusler  v.  McKees  Rocks  School 
District,  256  Pa.  281. 

The  Act  of  1917  is  local  and  special  legislation  and  is 
void:  Sample  v.  Pittsburgh,  212  Pa.  533. 

'  John  0.  Wicks,  with  him  Lee  C.  Beatty,  John  8.  Weh 
ler  and  Simon  T.  Patterson,  for  appellees. — The  Act  of 
1917  is  not  a  local  or  special  law  since  by  its  terms  it  ap- 
plies to  all  contracts  entered  into  by  any  county  of  the 
Commonwealth  under  the  Act  of  May  11, 1909,  P.  L.  506 : 
Sample  v.  Pittsburgh,  212  Pa.  533;  Carlstadt  National 
Bank  v.  Borough  of  Hasbrouck  Heights,  83  N.  J.  L.  383 ; 
State  ex  rel.  Board  of  Education  v.  Brown,  106  N.  W. 
477. 

The  act  does  not  conflict  with  Article  III,  Section  11, 
of  the  Constitution,  prohibiting  the  giving  of  extra  com- 
pensation to  contractors  nor  does  it  authorize  a  provi- 
sion in  contravention  of  Article  IX,  Section  7,  of  the 
Constitution.  The  Act  of  1917  is  not  an  assumption  by 
the  legislature  of  judicial  powers :  County  Commission- 
ers' Petition,  255  Pa.  88;  Devers  v.  York  City,  150  Pa. 
208;  Melick  v.  Williamsport,  162  Pa.  408;  Creighton 
V.  San  Francisco,  42  Cal.  446 ;  O'Brian  &  Co.  v.  County 
Commissioners  of  Baltimore  County,  51  Md.  15 ;  Thom- 
son V.  Lee  County,  3  Wal.  327. 

Where  there  is  a  moral  obligation  existing  against  a 
city,  county  or  other  municipal  division  of  the  State, 
which  cannot  be  enforced  at  law  or  in  equity,  it  never- 
theless constitutes  good  consideration  for  the  payment 
of  public  money  and  there  is  no  constitutional  limitation 
placed  upon  the  legislature  preventing  it  from  legalizing 
such  obligations:  Bailey  v.  Philadelphia,  167  Pa.  569; 
Commonwealth  v.  Walton,  236  Pa.  220 ;  Vare  v.  Walton, 
236  Pa.  467 ;  Cunningham  v.  Dunlap,  242  Pa.  341 ;  Long- 
streth  V.  City  of  Philadelphia,  245  Pa.  233;    Bellevue 


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310      KENNEDY  et  al.,  Appellants,  v.  METER  et  al. 

Arguments — Opinion  of  tho  Court.  [259  Pa. 

Borough  V.  Gibson,  43  Pa.  Superior  Ct.  561 ;  Justice  v. 
Philadelphia,  37  Pa.  Superior  Ct.  267;  Cleveland  v. 
Board  of  Jersey  City,  38  N.  J.  L.  259;  Chester  City  v. 
Black,  132  Pa.  568. 

Opinion  by  Mb.  Justice  Moschziskee,  January  7, 
1918: 

In  this  case  a  bill  in  equity  was  dismissed,  and  the 
complainants  have  appealed.  The  learned  court  below 
has  dealt  with  the  issues  involved  so  satisfactorily  that, 
after  examining  and  considering  all  the  authorities  cited, 
we  have  concluded  to  dispose  of  the  appeal  on  the 
following  excerpts  from  its  opinion,  with  a  few  relevant 
additions  at  several  points,  and  some  discussion  of  com- 
plainants' chief  contentions,  which  we  shall  add  at  the 
end. 

The  court  below  states :  "Pursuant  to  the  Act  of  May 
11,  1909,  P.  L.  506,  the  commissioners  of  Allegheny 
County,  on  November  18,  1914,  presented  their  petition 
to  the  Court  of  Quarter  Sessions for  the  construc- 
tion of  a  public  highway  tunnel.  In  due  course,  the  case 
came  before  the  grand  jury  [as  required  by  the  Act  of 
1909,  supra],  which,  on  December  31, 1914,  approved  the 
project.  Exceptions  were  filed  wherein,  inter  alia,  the 
constitutionality  of  the  act  [under  which  the  proceed- 
ings were  had]  was  denied.  After  argument,  the  court, 
on  March  13, 1915,  dismissed  the  exceptions  and  ordered 
the  tunnel  to  be  constructed.  Thereupon,  the  commis- 
sioners entered  into  a  contract  with  Booth  &  Flinn,  Ltd., 

and   the  contractor  proceeded  with   the   work. 

June  18, 1915,  an  appeal  was  taken  to  the  Superior  Court. 

November  29,  1915,  the  Superior  Court  affirmed 

the  judgment:  Allegheny  County  Commissioners'  Case, 
61  Pa.  Superior  Ct.  591.  February  25,  1916,  an  appeal 
was  allowed  by  the  Supreme  Court.  July  1,  1916,  that 
court  reversed  the  judgment  of  the  Superior  Court  upon 
the  single  ground  that  the  Act  of  May  11,  1909,  was 
unconstitutional  because  its  title  failed  to  indicate  the 


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KENNEDY  et  al.,  AppeUants,  v.  MEYER  et  aL  311 
1918.]  Opinion  of  the  Court 
l^islative  purpose :  County  Commissioners'  Pe- 
tition, 255  Pa.  88.  Prior  to  the  decision  of  the  Supreme 
Court  the  contractor  had  done  work  to  the  value  of  about 
153,000. 

"By  an  act  approved  April  20, 1917,  P.  L.  90,  the  leg- 
islature enacted  that,  whenever  any  county  had  [there- 
tofore] entered  into  a  contract  or  contracts  for  the  con- 
struction of  a  public  highway,  bridge  or  tunnel  and  the 
same  had  been  completed  in  whole  or  in  part,  but  [the 
county]  was  without  power  to  pay  for  the  work  which 
had  been  actually  done  [because  the  act  under  which 
such  work  was  done  had  been  declared  unconstitutional], 
^now  by  this  act  such  contract  is  made  valid  and  binding 
on  such  county,  to  the  extent  only  that  such  work  and 
construction  was  done  or  made  prior  to  the  date  on 
which  said  act  was  declared  unconstitutional ;  and  such 
county  is  hereby  authorized  and  directed  to  ascertain 
and  pay  for  all  work  d(me  and  materials  furnie^ed, 
under  the  terms  of  said  contract,  to  the  party  or  parties 
who  performed  the  same.  [The  act  continues:  ^Such 
work,  or  such  part  thereof  as  was  actually  done  at  the 
date  on  which  said  act  was  declared  unconstitutional, 
shall  be  paid  for  from  county  funds  out  of  the  county 
treasury,  at  the  prices  fixed  for  the  payment  of  the  same 
under  the  terms  of  the  contract  so  entered  into,  in  pur- 
suance to  the  terms  of  said  act.  Nothing  in  this  act 
shall  be  so  construed  as  to  make  valid  any  resolution  or 
contract  except  to  the  extent  that  work  was  actually 
done  and  performed  prior  to  the  date  on  which  said  act 
of  assembly  was  declared  unconstitutional.'] 

^'The  commissioners have  approved  the  claim  of 

Booth  &  Plinn,  Ltd.,  for  the  value  of  the  work  done;  the 
county  controller  is  about  to  draw  a  warrant  for  its  pay- 
ment ;  and  the  county  treasurer  is  about  to  pay  the  same 

out  of  county  funds The  complainants,  on  their 

own  behalf  and  on  behalf  of  all  other  taxpayers  who 
may  intervene,  filed  this  bill,  wherein  they  aver  that  the 
Act  of  April  20,  1917,  P.  L.  91,  is  unconstitutional  and 


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312      KENNEDY  et  al.,  Appellants,  v.  METER  et  al. 

Opinion  of  the  Court  [259  Pa* 

pray  that  an  injunction  be  issued  forbidding  payment 
of  the  claim The  defendants  demurred  to  the  bill. 

"The  complainants  aver  that  the  Act  of  April  20, 1917, 
is  unconstitutional  because  it  is  local  and  special  legis- 
lation, contrary  to  Article  III,  Section  7,  of  the  Consti- 
tution ;  and  because  it  is  in  violation  of  Article  III,  Sec- 
tion 11,  and  Article  IX,  Section  7,  of  the  Constitution. 
They  further  aver  that  [the  act  under  attack  is  an  as- 
sumption of  judicial  power,  and  that] payment  of 

this  claim  will  result  in  depriving  them  of  their  property 
in  violation  of  Article  I,  Section  1,  [of]  the  Declaration 
of  Bights;  finally,  that  such  payment  will  be  in  the 
nature  of  a  gratuity  to  Booth  &  Flinn,  Ltd." 

The  opinion  sustaining  the  demurrer  then  proceeds  as 
follows:  "Article  III,  Section  7,  of  the  Constitution, 
prohibits  the  enactment  of  *any  local  or  special  law 

regulating  the  affairs  of  counties ' 

The  Act  of  1917  [supra]  in  terms  applies  to  all  counties 
in  the  State,  and,  therefore,  it  is  presumptively  a  general 
statute.     That  but  one  county  happens  to  be  affected  by 
its  provisions,  even  if  such  be  the  fact,  is  of  no  moment. 
Every  county  might  have  availed  itself  of  the  provisions 
of  the  Act  of  1909,  and  that  but  one  did  so  is  a  mere  cir- 
cumstance in  no  way  affecting  the  generality  of  the  Act 
of  1917... ..  ..The  act  does  not  authorize  a  county  to 

pay  any  one  a  specified  amount;  it  gives  authority  to 
pay  for  [work]  actually  done  [in  any  and  all  instances 
falling  within  the  remedial  provisions  of  the  l^isla- 
tion].  The  amount  [in  each  case]  must  be  ascertained 
by  the  courts  in  the  same  manner  as  they  dispose  of  any 
other  controversy.  There  happens  to  be  no  dispute  as 
to  the  amount  [in  the  present  case],  because  there  is  no 
averment  in  the  bill  which  raises  a  t]uestion  of  that  kind. 
In  our  opinion  this  is  not  a  local  or  special  law*' :  Swartz 
V.  Carlisle  Boro.,  237  Pa.  473,  477;  Carlstadt  National 
Bank  v.  Borough  of  Hasbrouck  Heights,  83  N.  J.  L.  383, 
386;  State  ex  rel.  Board  of  Education  v.  Brown,  97 
Minn.  402,  404,  408,  416,  422. 


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KENNEDY  et  al.,  Appellants,  v.  I^IEYER  et  al.  313 
1918.]  Opinion  of  the  Court. 

We  may  add  to  the  views  just  quoted  from  the  opin- 
ion of  the  court  below  that  Sample  v.  Pittsburgh, 
212  Pa.  533,  543,  544,  cited  by  appellants,  is  not 
a  case  in  point.  There  it  was  perfectly  apparent  that 
the  act  assailed  was  intended  to  apply  only  to  a  particu- 
lar locality,  for^  as  said  in  that  case,  it  is  a  mat- 
ter of  general  knowledge,  of  which  the  courts  will  take 
judicial  notice,  that  only  one  county  in  the  State  con- 
tains two  contiguous  cities  "separated  by  a  stream"; 
hence  it  is  to  be  presumed  that  the  legislature  acted  upon 
such  knowledge  and  intended  the  statute  in  question  to 
apply  to  that  one  county  alone.  In  the  present  instance, 
we  do  not  know  in  how  many  parts  of  the  st&te  the  Act  of 
1917,  supra,  may  apply,  and  it  cannot  be  presumed  that 
the  lawmakers  had  any  greater  knowledge  upon  the  sub- 
ject than  we  possess  or  that  they  enacted  the  law  to  fit 
any  special  case.  Indeed,  all  presumptions  must  be  drawn 
in  favor  of  the  validity  of  the  act  and  the  propriety  of  the 
legislative  intention :  Sugar  Notch  Boro.,  192  Pa.  349, 
355;  Penna.  R.  R.  Co.  v.  Riblet,  66  Pa.  164,  169; 
Likins^s  Petition  (No.  1),  223  Pa.  456,  459-60;  Com.  v. 
Hyneman,  242  Pa.  244,  246-7.  The  numerous  cases  cited 
in  State  ex  rel.  Board  of  Education  v.  Brown,  supra, 
from  other  jurisdictions,  show  how  loath  the  courts  are 
to  hold  curative  acts  to  be  special  or  local  legislation 
when  they  are  drawn  to  "apply  to  all  persons,  things  or 
subjects  affected  by  the  conditions  to  be  remedied,"  as  is 
the  statute  now  under  consideration. 

The  court  below  goes  on  to  say :  "Art.  Ill,  Sec.  11,  of 
the  Constitution,  prohibits  legislation  giving  extra  com- 
pensation *to  any  public  officer or  contractor  after 

services  shall  have  been  rendered  or  contract  made,*  or 
^providing  for  the  payment  of  any  claim  against  the  Com- 
monwealth without  previous  authority  of  law.*  As  this 
claim  is  not  against  the  Commonwealth,  the  latter  part 
of  the  section  has  no  application.  No  extra  compen- 
sation is  given  to  any  one  by  the  terms  of  the  Act  of 
1917 ,  and  the  claim  [at  bar]  is  not  within  the 


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314      KENNEDY  et  al.,  Appellants,  v.  MEYER  et  al. 

Opinion  of  the  Court  [259  Pa. 

niifichief  against  .which  the  above  provision  is  a  protec- 
tion." The  correctness  of  these  views  will  be  made  plain 
hereinafter,  when  we  consider  the  character  of  the  claims 
provided  for  and  the  nature  of  the  remedy  afforded  by 
the  Act  of  1917,  supra. 

Further  on  the  opinion  states :  ^^Art.  IX,  Sec.  7,  of  the 
Constitution  prohibits  the  legislature  from  authorizing 
the  appropriation  of  money  or  the  loaning  of  credit  by  a 
county  [city,  etc.] to  any  corporation  or  individual;  the 
payment  of  the  present  claim  does  not  violate  that  sec- 
tion in  any  sense."  We  may  add  to  this  brief  quotation 
that  the  Act  of  1917,  supra,  does  not  treat  the  obligations 
with  which  it  deals  as  gratuities,  such  as  contemplated 
by  this  constitutional  inhibition,  but  as  moral  obliga- 
tions that  have  ceased  to  be  legal  ones  merely  because  of 
defects  in  the  statute  which  authorized  them.  If  the 
authority  for  payment  contained  in  the  act  before  us  is 
a  violation  of  this  section  of  the  Constitution,  then  all 
curative  acts  and  ordinances  which  direct  or  authorize 
payments  by  municipalities  for  work  done  without  pre- 
vious authority  of  law,  would  be  void ;  which  every  one 
knows  not  to  be  the  case.  We  mention  ordinances,  for, 
of  course,  municipalities  cannot  lawfully  do  those  things 
which  the  legislature  is  prohibited  by  the  organic  law 
from  authorizing  them  to  do ;  and  Section  5  of  the  Act 
of  May  23, 1874,  P.  L.  230,  which  empowers  the  cities  of 
the  Commonwealth,  by  a  two-thirds  vote  of  their  coun- 
cils, to  pass  ordinances  providing  for  payment  of  honest 
claims  against  them  incurred  "without  previous  author- 
ity of  law"  but  supportable  as  moral  obligations,  has 
more  than  once  been  upheld  in  practical  application  by 
this  court:  see  Vare  v.  Walton,  236  Pa.  467,  469-70; 
Com.  V.  Walton,  236  Pa.  220;  Cunningham  v.  Dunlap, 
242  Pa.  341,  345. 

The  next  matter  enumerated  for  consideration  is 
briefly  but  correctly  disposed  of  in  these  words:  "The 
payment  of  [the  present]  claim  will  not  be  in  violation 
of   Sec.    1   of  the   Declaration   of   Bights;    this   pro- 


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KENNEDY  et  al,  Appellants,  v.  METER  et  al.      315 
1918.]  Opiuiou  of  the  Court. 

vision  relates  to  the  acquisition,  possession,  and  protec- 
tion of  property.  None  of  the  property  of  the  complain- 
ants will  be  taken  by  anything  proposed  to  be  done. 
They  have  no  [special]  title  to  any  moneys  in  the  county 
treasury;  therefore,  the  payment  of  this  claim  cannot 
in  any  event  deprive  them  of  private  property."  We  have 
held  frequently  that  the  legislature  may  lawfully  im- 
pose a  tax  to  pay  the  expense  of  a  public  improvement 
which  had  been  made  under  invalid  authority,  and  that 
an  assessment  for  that  purpose  is  not  a  taking  or  de- 
privation of  property  within  the  meaning  of  the  Consti- 
tution. If  power  to  make  such  an  assessment  exists,  it 
follows  that  there  is  an  equal  right  to  pay  for  the  im- 
provement from  moneys  in  the  public  treasury  raised  by 
general  taxation  or  otherwise:  Schenley  v.  Com.,  36  Pa. 
29,  57;  Donley  v.  Pittsburgh,  147  Pa.  348;  New  Brigh- 
ton Boro.  V.  Bidden,  14  Pa.  Superior  Ct.  207,  211. 

The  opinion  of  the  court  below  deals  as  follows  with 
the  last  point  in  controversy:  "Neither  is  this  Act  of 
1917  an  assumption  by  the  legislature  of  judicial  powers, 
as  is  argued  by  the  complainants.  The  contract  to  which 
they  are  now  objecting  was  not  before  the  court  in  the 
previous  litigation,  except  incidentally.  The  actual 
controversy  was  as  to  the  constitutionality  of  the  Act  of 
1909,  without  regard  to  anything  that  had  been  done 
thereunder ;  hence,  there  was  no  decision  upon  the  con- 
tract at  all.  Nothing  could  have  been  decided  except  a 
constitutional  question.  The  Act  of  1917  does  no  more 
than  any  other  curative  act;  it  effectively  authorizes 
[within  the  restrictions  of  the  statute]  what  had  pre- 
viously been  defectively  authorized,  and  there  is  no  at- 
tempt to  decide  any  judicial  question The  act 

is  undoubtedly  curative  legislation;  but  the  legislature 
is  not  prohibited  from  passing  such  acts,  if  the  power  to 
enact  the  [substance  of  the  prior]  defective  legislation 
existed.  If  there  was  such  authority,  that  which  was  de- 
clared invalid  may  be  validated  by  a  subsequent  statute: 
Donley  v.   Pittsburgh,   147  Pa.  348.     *The  authority 


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316      KENNEDY  et  al,  Appellants,  v.  MEYER  et  aL 

Opinion  of  the  Court  [259  Pa. 

of  the  legislature  to  ratify  wliatever  it  might  have  au- 
thorized is  beyond  question' :  Devers  v.  York  City,  150 
Pa.  208.    That  there  was  power  to  authorize  counties  to 

construct  highway  tunnels  within  cities, cannot 

he  denied.  Indeed,  in  the  decision  declaring  the  Act  [of 
1909,  supra]  unconstitutional,  the  Supreme  Court  says 
[p.  92],  ^It  is  not  contended  that  the  general  assembly 
lacked  authority  to  make  these  radical  changes,  but  that 
the  title  here  in  controversy  is  not  sufficiently  clear  to 
give  notice  of  an  intention  so  to  do' :  County  Commis- 
sioners' Petition,  255  Pa.  88.  Thus  the  [curative]  Act 
of  1917,  supra,  is  within  the  principle  above  enunciated." 
The  complainants  attack  practically  all  of  the  above 
quoted  views  and  conclusions  of  the  court  below;  but 
their  chief  contentions  center  around  the  thought  that, 
when  the  Act  of  1909,  supra,  was  before  us  cm  the  former 
appeal  (255  Pa.  88),  we  then  adjudged  the  present  con- 
tract invalid,  and,  therefore,  the  legislature  could  not 
subsequently  enact  a  law  declaring  to  the  contrary,  with- 
out unduly  encroaching  upon  judicial  prerogatives;  and 
they  argue  that  the  Act  of  1917,  supra,  is  such  an  en- 
croachment. This  position  is  faulty  for  two  reasons.  In 
the  first  place,  while  the  result  of  our  former  adjudica- 
tion was  to  render  ineffectual  the  tunnel  contract  here 
involved,  yet  that  matter  was  not  then  in  litigation  and 
we  passed  no  direct  judgment  thereon.  Next,  the  Act 
of  1917,  supra,  does  not  attempt  or  even  pretend  to  vali- 
date the  contracts  therein  referred  to,  in  the  sense  of 
making  them  effective,  or  establishing  them  as  subsist^ 
ing  binding  obligations,  according  to  their  tenor,  nor  does 
the  act  undertake  to  declare  the  proceedings  underlying 
such  contracts  legal,  after  we  had  ruled  otherwise.  On 
the  contrary,  the  legislation  in  question  is  based  upon  a 
recognition  of  the  non-enforcibility  of  these  contracts, 
and  they  are  treated  therein  as  mere  moral  obliga- 
tions. The  whole  statute  is  drawn  upon  the  theory 
that  the  relief  thereby  afforded  Is  made  necessary  by  the 
illegality  of  the  before-mentioned  prior  legislation  and 


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KENNEDY  et  al,  Appellants,  v.  MEYER  et  al.      317 
1918.]  Opinion  of  the  Oourt. 

all  proceedings  thereunder.  True,  at  one  point,  it  does 
state  that  the  contracts  are  made  "valid  and  binding,"but 
this  language  is  immediately  qualified  by  the  remedial 
or  curative  part  of  the  statute,  which  provides  that  re- 
covery thereunder  can  be  had  only  for  work  done  before 
the  unconstitutionality  of  the  former  legislation,  upon 
which  these  contracts  rest,  was  established,  and  that  (as 
quoted  hereinbefore)  "nothing  in  this  act  shall  be  so 

construed  as  to  make  valid  any contract  except  to 

the  extent  that  work  was  actually  done  and  performed 
prior  to  the  date  on  which  said  [legislation]  was  declared 
unconstitutional."  In  other  words,  the  essence  of 
the  law  under  attack  is  simply  a  legidative  recognition 
that,  when  in  any  instance  public  work  of  the  character 
described  in  the  statute  shall  have  been  done  under  a  con- 
tract having  the  color  of  validity,  by  reason  of  its  author- 
ization by  act  of  assembly,  and  such  act  shall  subse- 
quently be  declared  unconstitutional,  these  circum- 
stances shall  give  rise  to  a  moral  obligation,  by  virtue  of 
which  the  statute  requires  the  county  which  ordered  the 
work  in  question  to  fulfil  its  promise  of  payment  to  the 
extent  of  any  actual  performance  of  the  contract,  up  to 
the  time  that  operations  thereunder  were  brought  to  a 
stop  by  the  adjudication  of  the  invalidity  of  the  prior 
authoritative  legislation.  Briefly  stated,  the  Act  of 
1917,  supra,  merely  turns  into  enforceable  demands  what 
the  legislature  in  its  wisdom  saw  fit  to  consider  moral 
obligations.  This  course  has  been  countenanced  repeat- 
edly as  curative  legislation ;  and,  in  the  present  instance, 
it  is  far  from  declaring  the  class  of  contracts  referred  to 
in  the  act  before  us  to  be  valid,  subsisting,  legal  obli- 
gations, to  be  enforced  according  to  their  tenor,  which, 
of  course,  the  legislature  could  not  do  without  eflPec- 
tually  remedying  the  faulty  foundation  upon  which  they 
rest. 

The  complainants  contend,  however,  that  to  make  the 
Act  of  1917,  supra,  curative  legislation,  in  the  proper 
legal  sense  of  that  term,  the  present  statute  would  have 


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318      KENNEDY  et  al.,  Appellants,  f.  MEYER  et  al. 

Opinion  of  the  Court.  [259  Pa. 

to  correct  the  errors  of  the  prior  authorizing  act,  which 
was  declared  unconstitutional;  and,  as  a  prerequisite 
to  any  recovery,  even  of  money  earned  before  the  decla- 
ration of  the  invalidity  of  the  other  statute,  the  con- 
tractors would  have  to  proceed  with  their  work  on  a  new 
and  valid  authorization  under  a  curative  act  so  drawn. 
Notwithstanding  the  able  argument  of  counsel  for  ap- 
pellants, as  already  indicated,  we  do  not  sustain  these 
contentions.  No  matter  how  much  support  therefor  may 
be  found  in  other  jurisdictions,  they  are  not  in  accord 
with  the  trend  of  authority,  particularly  in  Pennsyl- 
vania; for,  in  several  instances,  we  have  upheld  the 
validity  of  curative  legislation  practically  like  that  now 
under  attack. 

Donley  v.  Pittsburgh,  147  Pa.  349,  is  cited  by  appel- 
lants as  an  adjudication  upon  curative  legislation  cor- 
rect in  form ;  but  it  might  better  have  been  relied  upon 
by  the  appellees,  for  an  examination  shows  that  the  act 
in  that  case  (May  16, 1891,  P.  L.  71)  expressly  validates 
and  gives  a  right  of  recovery  for  improvements  already 
made  under  old  and  void  legislation ;  and,  as  a  matter 
of  fact,  the  proceedings  there  were  to  collect  under  the 
curative  act  for  work  which  had  been  completed  under 
a  void  statute.  There,  as  noted  in  the  opinion  of  this 
court,  certain  public  improvements  were  made  under 
legislation  which  was  subsequently  declared  unconsti- 
tutional;   "this  left  the  city  without  power  to  collect 

the  cost  of  the improvements  completed  and 

in  course  of  construction,"  and  the  statute  attacked  was 
passed  to  remedy  this  difficulty.  The  opinion  in  that 
case  then  states :  "It  was  urged  that  this  [curative]  act 
does  not  apply,  because  the  improvements  in  question 
were  made  under  void  acts  of  assembly,  and  without  any 
authority  whatever.  If  they  had  been  made  under  com- 
petent authority,  or  a  valid  act  of  assembly,  there  would 
have  been  no  need  of  curative  legislation.  The  work 
having  been  done  under  void  authority,  and  the  property 
owners  having  received  the  benefits  of  the  street  improve- 


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KENNEDY  et  al,  Appellants,  v.  MEYER  et  al.      319 
1918.]  Opinion  of  the  Court. 

ments,  the  legislature  had  the  clear  right  to  legalize 
what  it  might  previously  have  ordered;  that  the  legis- 
lature has  the  power  to  pass  such  remedial  legislation  is 
settled  by  abundant  authority."  If  the  law-making  body 
has  the  right  to  enforce  payment  by  property  owners  of 
claims  such  as  the  one  involved  in  thid  Donley  case,  and 
we  there  decide  it  has  such  right,  it  has  equal  power  to 
authorize  payment  by  the  counties  of  claims  for  work 
done  in  and  about  attempted  public  improvements,  as 
ordained  by  the  statute  before  us  in  the  present  case. 

Another  and  perhaps  even  stronger  authority  for  the 
appellee  than  the  Donley  case  is  Chester  City  v.  Black, 
132  Pa.  568.  There  a  public  improvement  had  been  made 
under  and  by  virtue  of  legislation  which  was  subse- 
quently declared  to  violate  the  Constitution.  An  act 
(May  23, 1889,  P.  L.  272)  "was  passed  to  meet  this  diffi- 
culty"; it  provides  for  the  assessment  of  the  cost  of 
work  done  under  prior  void  statutes,  and  is  expressly 
entitled,  "An  act  authorizing  assessments  and  reassess- 
ments for  the  costs  of  local  improvements  already  made 

or  in  process  of  completion . . "     No  provision  is 

therein  made  for  continuing  or  completing  work  already 
started  under  void  acts,  the  curative  statute  being  con- 
cerned entirely  with  the  method  of  paying  and  recover- 
ing for  work  already  done.  The  defendant  was  assessed, 
under  the  curative  act,  for  part  of  the  cost  of  an  im- 
provement which  had  been  authorized  and  completed 
under  the  void  act.  He  resisted  payment  on  the  ground 
that  the  curative  act  was  unconstitutional.  We  held 
that,  the  original  authorization  and  proceedings  for  the 
collection  of  the  assessment  being  abortive,  since  the 
legislature  had  power  to  authorize  the  work  and  assess- 
ment, the  curative  act  was  valid  and  recovery  could  be 
had  thereunder.  Thus  it  may  be  seen  that,  in  the  case 
just  cited,  the  defects  in  the  void  statutes  were  not  at- 
tempted to  be  cured  by  the  remedial  act,  but  work  done 
under  the  prior  legislation  was  ratified  and  provision 


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320      KENNEDY  et  al,  Appellants,  f.  MEYER  et  al. 

Opinion  of  the  Court.  [269  Pa. 

made  for  the  assessment  and  collection  of  the  cost  there- 
of. 

The  theory  upon  which  curative  acts  of  the  nature  of 
the  one  now  before  us  have  been  sustained  is  briefly 
this :  where  the  legislature  has  power  to  enact  the  sub- 
stance of  the  matter  covered  by  a  statute  which  has  been 
declared  void  because  unconstitutional  in  form  (as  in 
the  case  at  bar)^  it  may  subsequently  ratify  and  make 
legal  anything  done  under  the  prior  void  legislation 
which  it  might  previously  have  authorized  in  due  form : 
Devers  v.  ITork,  150  Pa.  208,  213. 

In  our  previous  case  (255  Pa.  88)  we  decided  the  Act 
of  1909,  supra,  unconstitutional  because  of  defects  in 
title;  then  the  Act  of  1917,  supra^  was  passed,  saying 
that,  where  improvements  had  been  made  under  the  void 
act  in  question,  the  county  aflFected  shall  pay  the  price 
of  such  portion  thereof  as  was  completed  at  the  time 
the  work  was  brought  to  a  stop  by  the  declaration  of  the 
invalidity  of  the  prior  legislation.  It  being  within  the 
power  of  the  law-making  body,  in  due  and  proper  form, 
originally  to  have  authorized  the  work  in  question,  there 
can  be  no  doubt  of  the  legislature's  right  subsequently 
to  ratify  what  it  might  have  previously  authorized,  and 
this  it  does  by  the  act  now  before  us. 

In  addition  to  the  authorities  already  cited,  see  also 
on  the  general  subject  in  hand,  Marshall  Avenue,  213 
Pa.  516;  Mellick  v.  Williamsport,  162  Pa.  408;  Bailey 
V.  Philadelphia,  167  Pa.  569,  573;  Rader  v.  Union 
Township,  39  N.  J.  L.  509,  519,  520.  As  to  Kreusler  v. 
McKees  Rocks  School  District,  256  Pa.  281,  it  is  suf- 
ficient to  say  the  facts  there  are  essentially  different 
from  those  at  bar  and  our  decision  in  that  case  rests 
upon  rules  of  law  not  here  involved ;  the  two  cases  in  no 
sense  conflict  with  each  other.  The  other  Pennsylvania 
cases  cited  by  appellants  do  not  rule  the  present  one. 

The  assignment  of  error  is  overruled  and  the  decree  af- 
firmed, at  the' cost  of  appellants. 


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VICKROT  et  al.  v.  FERXDALE  BOROUGH.       321, 
1918.]  Syllabus. 

Vickroy  et  al.  v.  Ferndale  Borough* 

Boroughs — Eminent  domain — Parka-^Appropriation  of  land—' 
A  ct  of  May  14, 1916,  P,  L,  812-412^ — Indebtedness  in  excess  of  statu- 
tory limit — Failure  to  submit  to  vote  of  people — Failure  to  pay — 
Mandamus — Courts — Power  over  process. 

1.  Any  court  having  jurisdiction  to  hear  and  determine  civil 
cases  has  control  over  its  own  processes  of  execution,  but  such 
power  may  not  be  exercised  arbitrarily  but  only  when  *  sufficient 
legal  reason  is  shown  for  the  court's  interference. 

2.  The  right  of  boroughs  to  appropriate  land  for  park  purposes 
is  purely  statutory  and  can  be  exercised  only  as  the  terms  and  con- 
ditions of  the  statutes  have  been  complied  with. 

3.  Under  Section  3  and  4  of  the  Act  of  May  14,  1916,  P.  L.  312- 
412,  giving  boroughs  the  right  to  appropriate  land  for  public  park 
purposes,  a  borough  will  not  be  liable  for  the  value  of  land  appro- 
priated where  the  value  of  such  land  exceeds  one  and  one-half  mill 3 
on  the  dollar  of  valuation  of  all  property  offices,  professions,  and 
persons  in  the  borough  upon  which  county  taxes  are  rated  and 
levied,  except  as  the  appropriation  is  approved  by  a  majority  vote 
of  the  borough.  ^ 

4.  Land  appropriated  by  a  borough  ordinance  for  park  purposes 
exceeded  in  value  one  and  one-half  mills  on  the  dollar  of  the  valua- 
tion of  all  property,  offices,  professions  and  persons  in  the  borough, 
and  such  appropriation  was  not  approved  by  a  majority  of  the  bor- 
ough electors.  The  borough  was  without  funds  to  pay  the  amount 
of  the  award,  from  which  no  appeal  had  been  taken  and  upon  which 
judgment  had  been  entered.  The  persons  whose  land  had  been 
taken  issued  a  mandamus  execution  against  the  borough.  At  tho 
instance  of  the  borough  the  court  made  an  order  directing  the  bor- 
ough to  pay  on  account  of  the  award  "annually  such  an  amount  as 
will  not  exceed  a  total  of  one  and  one-half  mills  on  the  dollar,  in 
three  years,  calculated  on  the  basis  of  the  valuation  of  property  in 
said  borough  at  the  rate  as  may  from  time  to  time  be  assessed  for 
county  purposes,"  the  apparent  purpose  of  such  order  being  to 
make  the  writ  effective  for  only  so  much  in  any  one  term  of  three 
years  as  the  defendant  borough  could  have  been  compelled  to  pay 
had  the  indebtedness  incurred  not  been  in  excess  of  one  and  one- 
half  mills  on  the  dollar  of  the  assessed  valuation  of  the  borough. 
Held,  (1)  the  question  of  the  appropriation  of  the  property  not 
having  been  submitted  to  the  electors  of  the  borough,  the  ordinance 
making  the  appropriation  imposed  no  liability  upon  th«  borough^ 

Vol.  ccltx— 21 


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322       VICKROY  et  al.  v.  FERNDALE  BOROUGH. 

Syllabus— Opinion  of  the  Court  [259  Pa. 

and  the  judgment  was  not  ripe  for  final  process  to  enforce  its  pay- 
ment, (2)  while  it  would  not  be  in  the  power  of  the  court  to  strike 
such  judgment  from  the  record  the  court  has  power  to  open  such 
judgment  for  purposes  of  defense  and  in  the  present  case  it  would 
be  a  clear  abuse  of  discretion  not  to  do  so,  and  (3)  the  execution 
should  be  vacated  and  set  aside. 

Submitted  Sept.  25,  1917.  Appeal,  No.  120,  Oct.  T., 
1917,  by  plaintiflFs,  from  order  of  C.  P.  Cambria  Co., 
March  T.,  1916,  No.  75,  modifying  judgment  and  man- 
damus execution,  in  case  of  Sarah  A.  Vickroy  and  John 
S.  Kenney,  Attorney  in  fact  for  Helen  V.  Austin,  Emma 
Vickroy  Suter,  Laura  H.  Vickroy,  Mary  H.  West,  Ed- 
ward A.  Crueger  and  Ida  Crueger  v.  Borough  of  Fern- 
dale.  Before  Brown,  C.  J.,  Mestrbzat,  Potter,  Stew- 
art, MosGHZiSKER,  Frazer  and  Walung,  JJ.  Be- 
versed. 

Petition  for  modification  of  judgment  and  mandamus 
execution.    Before  Stephens,  P.  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  entered  the  order  set  forth  in  the  opinion  of 
the  Supreme  Court.     PlaintiflFs  appealed. 

Error  assigned  was  the  order  of  the  court. 

Frank  P.  Barnhart  and  A,  Lloyd  Adams,  submitted 
for  appellants. 

D.  P.  Weimer,  submitted  for  appellee. 

Opinion  by  Mr.  Justice  Stewart,  January  7, 1918 : 
By  ordinance  enacted  September  8,  1915,  the  munici- 
pal authorities  of  the  Borough  of  Ferndale,  Cambria 
County,  under  the  provisions  of  the  Act  of  May  14, 1915, 
P.  L.  Sl2,  appropriated  certain  real  estate  belonging  to 
the  appellants  for  park  purposes.  On  the  13th  of  De- 
rcember  following  appellants  filed  a  petition  prajing  the 
court  to  appoint  viewers  to  assess  damages  for  the  land 


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VICKROY  et  al.  v.  FERNDALE  BOROUGH.       323 
1018.]  Opinion  of  the  Court. 

SO  appropriated.  On  March  6,  1916,  the  viewers  so  ap- 
pointed filed  their  report  in  which  there  was  awarded  the 
appellants  the  sum  of  $3,700  for  damages.  No  excep- 
tions were  filed  to  this  report,  nor  was  any  appeal  taken 
therefrom,  and  on  April  6th  following  the  report  was 
confirmed  absolutely.  On  April  21st  following  judg- 
ment was  entered  on  the  report  in  favor  of  the  appellants 
for  the  sum  awarded.  In  default  of  payment  of  this 
judgment  appellants  caused  to  be  issued  a  mandamus 
execution  against  the  borough  requiring  the  payment  of 
said  judgment  out  of  any  unappropriated  moneys,  or  if 
no  such  money,  then  out  of  the  first  moneys  that  should 
be  received  by  the  borough.  Thereupon  the  borough,  by 
its  municipal  authorities,  filed  its  petition  setting  forth 
the  f^cts  we  have  above  stated,  with  these  additional 
facts:  (1),  that  the  general  borough  law  under  which 
the  appropriation  of  appellants'  land  was  made  for  park 
purposes— Act  of  May  14,  1915,  P.  L.  312,  Chapter  IX, 
p.  412,  Article  I,  Sections  3  and  4 — restricts  the  amount 
of  indebtedness  a  borough  may  incur  to  a  sum  within 
one  and  one-half  mills  on  the  dollar  of  the  assessed  valua- 
tion of  the  property,  offices,  professions  and  persons  in 
the  borough  upon  which  county  taxes  are  rated  and 
levied,  except  with  the  consent  of  a  majority  of  electors 
obtained  in  the  manner  provided  for  in  Section  4 ;  that 
is  to  say,  when  an  expenditure  is  contemplated  which 
will  exceed  such  limitation,  "the  council  shall  cause  the 
question  of  such  appropriation,  purchase  or  leasing  to 
be  submitted  to  the  electors  of  the  borough  at  the  munici- 
pal or  general  election  next  occurring  after  the  expira- 
tion of  forty  days  from  the  date  of  such  ordinance"; 
(2),  that  the  amount  of  damages  awarded  by  the  viewers 
for  appropriation  of  appellants'  land,  namely,  $3,700, 
exceeds  one  and  one-half  mills  on  the  dollar  of  the  as- 
.  sessed  valuation ;  (3 ) ,  that  at  the  time  the  whole  amount 
of  money  unappropriated  belonging  to  the  borough  was 
130.08,  and  concluded  with  asking  that  the  court  mould 
the  judgment  entered  and  execution  so  as  to  permit  the 


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324       VICKROT  et  al.  v.  FERNDALE  BOROUGH. 

Opinion  of  the  Court.  [259  Pa, 

borough  to  pay  the  judgment  out  of  the  moneys  unap- 
propriated or  that  might  come  into  the  hands  of  the 
treasurer  which  may  not  have  been  previously  appro- 
priated, not  to  exceed,  however,  one  and  one-half  mills 
on  tlie  assessed  valuation  of  the  borough  in  any  period 
of  three  years.  To  this  petition  plaintiff  answered,  not 
traversing  any  of  the  material  facts  alleged  in  the  peti- 
tion, but  simply  denying  the  power  or  jurisdiction  of  the 
court  to  make  such  order.  On  January  1, 1917,  without 
filing  any  opinion,  the  court  made  the  following  order : 
**Xow,  January  1,  1917,  upon  due  consideration  the  rule 
heretofore  issued  is  discharged  and  the  order  in  the 
above  writ  of  mandamus  execution  entered  to  No.  5, 
September  Term,  1916,  is  modified  as  follows:  The  de- 
fendant, the  Borough  of  Ferndale,  is  directed  to  pay  on 
account  of  the  sum  of  |3,700  and  interest  thereon  as 
awarded  to  the  plaintiff,  Sarah  A.  Vickroy,  on  account 
of  appropriation  of  land  for  park  purposes  by  the  Bor- 
ough of  Ferndale,  annually  such  an  amount  as  will  not 
exceed  a  total  of  one  and  one-half  mills  on  the  dollar,  in 
three  years,  calculated  on  the  basis  of  the  valuation  of 
property  in  said  borough  at  the  rate  as  may  from  time  to 
time  be  assessed  for  county  purposes."  The  appeal  is 
from  this  order. 

We  take  the  case  simply  as  it  is  presented  on  the 
record  before  us.  It  may  well  be  that  there  are  more 
serious  questions  underlying  than  any  upon  which  issue 
has  been  joined  in  this  appeal,  but  if  so  they  must  await 
determination  until  such  time  as  they  come  properly 
before  us.  At  this  time  we  have  nothing  to  decide  except 
the  right  and  power  of  the  lower  court  out  of  which  the 
mandamus  issued  to  modify  it  in  the  way  it  did.  The 
pleadings  raise  no  question  as  to  the  regularity  of  the 
judgment  on  which  the  mandamus  execution  issued ;  nor 
was  the  order  of  the  court  based  on  any  supposed  in- 
firmity of  the  judgment,  but  rather,  on  the  contrary,  it 
assumes  the  validity  of  the  judgment  and  goes  no  further 
than  to  control  the  execution  process  issued  thereon. 


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VICKROY  et  al.  v.  PERNDALE  BOROUGH.       325 
1^180  Opinion  of  the  Court. 

The  questions  thus  avoided  are  not  subjects  of  inquiry  in 
the  present  controversy,  however  much  upon  their  de- 
termination the  merits  of  this  case  may  largely  depend 
in  the  final  adjustment 

It  is  unquestionable  that  any  court  having  jurisdiction 
to  hear  and  determine  civil  causes  has  control  over  its 
own  processes  of  execution.  This  power,  however,  may 
not  be  exercised  arbitrarily,  but  only  when  sufficient 
legal  reason  is  shown  for  the  court's  interference.  The 
t)rder  made  in  this  case  is  what  it  plainly  imports — an 
amendment  of  the  writ  of  execution  that  had  been  issued, 
— and  the  court  has  not  left  us  in  doubt  as  to  its  pur- 
pose, which  was  to  make  the  writ  eflfective  for  only  so 
much  in  any  one  term  of  three  years  as  the  defendant 
borough  could  have  been  compelled  to  pay  had  the  in- 
debtedness incurred  not  been  in  excess  of  one  and  one- 
half  mills  on  the  dollar  of  the  assessed  valuation  of  the 
borough. 

It  is  a  conceded  fact  that  the  value  of  appellants'  land 
or  rental  thereof  exceeded  one  and  one-half  mills  on  the 
dollar  of  the  assessed  valuation  of  all  property,  offices,  . 
professions  and  persons  in  the  borough  upon  which 
county  taxes  are  rated  and  levied.  Another  fact  of 
which  the  same  may  be  said  is  that  such  valuation  or  as- 
sessment having  been  ascertained,  the  question  of  the 
appropriation  of  property  was  not  submitted  to  the  elec- 
tors of  the  borough  as  required  by  the  act  of  assembly. 
Prom  the  latter  it  results  that  the  judgment  on  which 
this  execution  issued,  though  taken  secundera  legem,  is 
not  a  judgment  ripe  for  final  process  to  enforce  its  pay- 
ment. The  right  of  boroughs  to  appropriate  land  for 
park  purposes  is  purely  statutory,  and  it  follows  that 
said  right  can  be  exercised  only  as  the  terms  and  condi- 
tions of  the  statute  have  been  complied  with.  The  act 
under  which  the  appropriation  in  this  case  was  made — 
Act  of  May  14, 1915,  P.  L.  312— after  giving  to  boroughs 
the  right  to  appropriate  land  for  public  park  puri)ose8, 
provides,  in  Chapter  IX,  p.  412,  Article  I,  Section  4,  that 


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326        VICEROY  et  al.  v.  FERNDALE  BOROUGH. 

Opinion  of  the  Court.  [259  Pa. 

"whenever  any  borough  shall  by  ordinance  provide  for 
the  appropriation,  purchase  or  leasing  of  private  prop- 
erty for  the  purposes  aforesaid  and  the  value  of  such 
property  or  rental  thereof  shall  alone,  or  when  added  to 
the  amount  of  liability  incuri*ed  for  any  of  the  purposes 
aforesaid  within  the  preceding  three  years,  exceed  one 
and  one-half  mills  on  the  dollar  of  valuation  as  provided 
in  preceiling  section,  the  council  shall  cause  the  question 
of  such  appropriation^^  purchase  or  leasing  to  be  sub- 
mitted to  the  electors  of  the  borough  at  the  municipal  or 
general  election  next  occurring  after  the  expiration  of 
forty  days  from  the  date  of-  such  ordinance."  The  four 
following  sections  of  the  act  provide  for  public  notice  to 
the  electors  of  the  proposed  submission  and  the  form  of 
the  question  to  be  submitted;  the  one  next  following 
provides  that  "no  such  question  determined  negatively 
by  the  voters  shall  be  again  submitted  until  one  munici- 
pal or  general  election  shall  intervene."  It  requires  no 
argument  to  show  that  no  liability  on  the  part  of  the 
borough  for  this  appropriation  by  ordinance  of  appel- 
lants' land  could  result,  except  as  the  appropriation  was 
subsequently  approved  by  a  majority  vote  of  the  bor- 
ough electors  in  the  manner  provided  for  by  the  act.  It 
was  the  right  of  eminent  domain  that  was  here  attempted 
to  be  exercised.  This  is  not  a  question  of  enforcing  a 
strict  construction  of  the  act  of  assembly ;  in  plain,  un- 
ambiguous language,  admitting  of  no  two  constructions, 
the  act  makes  it  a  condition  of  final  appropriation  when 
its  value  exceeds  the  one  and  one-half  mills  on  the  dollar 
of  the  assessed  valuation  of  the  borough,  that  the  taking 
be  approved  by  a  majority  of  the  electors  at  a  vote  taken 
in  the  way  prescribed.  It  is  admitted  in  the  pleadings 
that  no  such  vote  was  taken.  How,  then,  could  liability 
result  to  the  borough?  But  here  we  have  a  judgment, 
regular  on  its  face  ^;id  entered  in  accordance  with  the 
terms  of  the  act  as  provided  by  Section  4  of  Chapter  IX, 
412,  which  reads  as  follows:  "The  final  confirmation 
of  the  report  (of  viewers)  shall  operate  as  a  judgment 


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VICKROT  et  al.  v.  FERNDALE  BOROUGH.       327 
1918.]  Opinion  of  the  Court. 

against  the  borough  in  favor  of  the  party  to  whom  dam- 
ages have  been  awarded  by  the  report,  or  by  so  much  of 
the  report  as  is  confirmed.  Interest  is  allowed  on  such 
judgment  from  the  date  of  filing  the  report."  While  it 
would  not  be  in  the  power  of  the  court  to  strike  such 
judgment  from  the  record,  yet  it  would  unquestionably 
be  in  the  power  of  the  court  to  open  such  judgment  for 
purposes  of  defense,  and  upon  the  allegation  of  such 
facts  as  are  here  admitted,  properly  supported,  it  would 
be  a  clear  abuse  of  discretion  not  to  do  so.  For  present 
purposes  no  further  reference  to  the  judgment  is  re- 
quired, our  only  object  in  referring  to  it  was  to  show 
that  it  is  at  least  assailable,  and  does  not  in  itself  show 
such  clear  legal  right  to  money  claimed  and  a  corre- 
sponding duty  on  the  part  of  the  borough  as  would  war- 
rant a  mandamus  execution  for  its  collection.  Certainly 
an  application  made  to  the  court  for  a  mandamus  execu- 
tion under  the  facts  exhibited  here  would  be  refused. 
With  the  power  of  the  court  to  control  its  processes  of 
execution,  why  should  it  be  denied  the  power  of  vacating 
a  process  which  it  would  have  been  compelled  to  deny 
had  it  been  asked  for?  And  this  is  what  should  have 
been  done  in  this  case,  in  order  to  prevent  the  process  of 
the  court  from  being  abused. 

The  appeal  is  sustained ;  the  order  of  the  court  is  re- 
versed and  the  mandamus  execution  is  vacated  and  set 
aside,  at  the  cost  of  appellants. 


Bowman,  Appellant,  t\  Berkey  et  al. 

Judgments — Judgment  notes — Alleged  alteration — Addition  of 
seal — Evidence — Burden  of  proof —  Presumption —  Opening  judg- 
ments— Discretion  of  court — Rule  to  strike  off  judgment — Laches — 
Res  adjudicata, 

1.  Although  the  addition  of  a  seal  after  the  signature  of  the 
maker  of  a  note  is  such  a  material  alteration  as  will  avoid  the  in- 
strument, an  alteration  hy  a  third  person,  without  the  knowledge 


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328  BOWMAN,  Appellant,  v.  BERKEY  et  al. 

Syllabus.  [250  Pa. 

of  consent  of  the  party  to  the  writing,  cannot  in  any  way  affect  the 
holder's  right  or  impair  the  validity  o^  the  instrument  in  its  origi- 
nal form. 

2.  In  proceedings  to  open  a  judgment,  entered  upon  a  judgment 
note,  evidence  showing  alterations  subsequent  to  the  execution  of 
the  instrument,  upon  which  the  judgment  is  based,  is  ample  to  meet 
the  burden  imposed  upou  the  defendant  by  law  to  make  a  good  de- 
fense by  evidence  sufficient  to  justify  submission  to  the  juiy  and 
to  sustain  a  verdict  for  defendant  if  believed  by  the  jury. 

3.  The  uncontradicted  testimony  of  plaintiff  and  her  witnesses 
to  the  effect  that  the  addition  of  the  seal  was  not  made  by  her  or 
by  any  one  for  her,  at  her  request,  does  not  shift  to  defendant  the 
burden  of  showing  who  was  responsible  for  its  presence  on  the 
note. 

4.  When  an  erasure,  alteration  or  interlineation  appears  on  the 
face  of  an  instrument,  there  is  primarily  a  presumption  that  the 
change  was  made  before  execution.  If  the  alteration  does  not  ap- 
pear to  be  beneficial  to  the  party  offering  the  writing  or  if  it  is 
opposed  to  his  interest,  or  if  made  with  the  same  pen  and  ink  and 
in  the  same  handwriting  as  the  body  of  the  writing,  this  presump- 
tion remains  unchanged.  Where,  however,  the  alteration  is  ma- 
terial, is  beneficial  to  the  party  offering  the  writing,  or  if  there  be 
a  change  on  the  face  of  the  instrument  which  app^rs  suspicious, 
the  presumption  disappears  and  the  burden  is  on  the  party  offering 
the  writing  to  explain  the  alteration  to  the  satisfaction  of  the  jury. 

5.  In  proceedings  to  open  a  judgment  entered  upon  a  judgment 
note,  on  the  ground  that,  after  the  execution  of  the  note,  a  seal  had 
been  added  thereto,  where  the  plaintiff  neither  admits  nor  directly 
denies  the  subsequent  alteration  but  states  that  no  alteration  was 
made  by  her  or  for  her  with  her  authority,  such  testimony  is 
wholly  insufficient  to  enable  the  court  to  say  as  a  matter  of  law 
that  she  has  met  the  burden  and  satisfactorily  accounted  for  the 
altered  condition  of  the  writing,  and,  as  in  such  case  the  real  dis- 
pute is  not  so  much  as  to  the  fact  of  adding  the  seal  as  by  whom 
added,  such  question  is  one  of  fact  for  the  jury,  and  the  court  did 
not  err  in  opening  the  judgment. 

6.  In  such  case  the  fact  that  a  motion  to  strike  the  judgment 
from  the  record  had  been  dismissed,  was  not  res  adjudicata  of  tho 
question  involved  as  the  mere  fact  that  the  seal  was  in  a  different 
handwriting  from  that  of  the  maker  of  the  note,  was  not  such  an 
irregularity  as  would  warrant  the  striking  off  of  the  judgment. 

7.  In  such  else  the  defendant  was  not  guilty  of  laches  in  taking 
the  rule  to  open  the  judgment  where  it  appeared  that  the  judgment 
was  entered  on  November  5, 1014,  that  a  rule  to  strike  off  the  judg- 


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BOWMAN,  Appellant,  r.  BERKET  et  al.  329 

1918.]  Syllabus — Opinion  of  the  Court. 

ment  was  taken  on  November  28th  following,  and  was  dis- 
charged on  September  1,  1916,  and  on  September  14,  1916,  a  peti- 
tion to  open  the  judgment  was  filed. 

Argued  Sept.  25, 1917.  Appeal,  No.  125,  Oct.  T.,  1917, 
by  plaintiff,  from  order  of  C.  P.  Cambria  Co.,  Dec.  T., 
1914,  No.  397,  opening  a  judgment,  in  case  of  Polly  A. 
Bowman  v.  Jerry  Berkey  and  W.  S.  Krise.  Before 
Brown,  C.  J.,  Mbstrbzat,  Potter,  Stewart,  AIoschzis- 
KER,  Frazbr  and  Walling,  JJ.    Affirmed. 

Petition  for  rule  to  open  judgment.  Before  O'Con- 
nor, J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 
The  court  opened  the  judgment.    Plaintiff  appealed. 

Errar  assigned  was  the  order  of  the  court. 

Frank  P.  Barnhart,  with  him  Morgan  W.  Evans,  for 
apx>ellant. 

Ea/i^ry  Doerr,  with  him  Tillman  K.  Saylor,  for  appel- 
lees. 

Opinion  by  Mr.  Justice  Frazer,  January  7, 1918 : 
The  court  below  made  absolute  a  rule  to  show  cause 
why  judgment  entered  against  defendant  under  a  war- 
rant of  attorney  contained  in  a  note  should  not  be 
opened.  Plaintiff  appealed.  The  question  for  our  de- 
termination is  whether  or  not  the  action  of  the  court  was 
a  proper  exercise  of  its  discretion  under  the  evidence 
produced :  Kelber  v.  Pittsburgh  National  Plow  Co.,  146 
Pa.  485 ;  Wright  v.  Linhart,  243  Pa.  221. 

Under  date  of  April  1,  1908,  Franklin  B.  Ott,  Jerry 
Berkey  and  W.  S.  Krise,  executed  a  note  to  plaintiff  for 
|2,500,  payable  to  the  order  of  plaintiff  and  containing 
a  warrant  of  attorney  to  confess  judgment  ending  with 
the  words  "Witness  our  hand  and  seal"  and  followed  by 
the  signatures  of  the  above  named  persons.     The  petition 


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330  BOWMAN,  Appellant,  r.  BERKEY  et  al. 

Opinion  of  the  Court.  [259  Pa. 

to  open  the  judgment  alleged  a  material  alteration  to 
the  note  since  its  execution  by  the  addition  of  the  word 
"seal"  after  the  name  of  Krise.  This  was  denied  in  the 
answer^  and,  in  the  depositions  taken  under  the  rule 
Krise  testified  the  word  "seal"  was  not  on  the  paper  op- 
posite his  name  at  the  time  of  affixing  his  signature  and 
had  been  added  since  without  his  knowleilge  or  consent 
The  testimony  of  other  witnesses,  tending  to  corroborate 
Krise,  was  in  effect  that  an  inspection  of  the  writing  and^ 
the  condition  of  the  ink  indicated  the  addition  of  the 
word  "seal"  subsequent  to  the  signing  of  the  note  and 
about  the  time  of  entering  judgment,  and,  further,  that 
the  word  "seal"  was  not  in  the  handwriting  of  Krise. 

Plaintiff  denied  the  seal  was  placed  on  the  note  subse- 
quent to  its  execution  by  her  or  by  any  person  at  her  re- 
quest or  on  her  behalf,  stating  however  her  inability  to 
say  whether  the  seal  was  there  at  the  time  Krise  attached 
his  signature.  Plaintiff's  husband,  who  transacted  busi- 
ness for  her  and  saw  the  note  executed,  also  admitted 
not  knowing  whether  a  seal  appeared  opposite  the  name 
of  Krise  at  the  time  he  signed  or  whether  the  latter 
added  it,  but  testified  the  note  with  the  seal  appeared  to 
be  in  the  same  condition  as  when  signed  by  the  parties 
and  he  knew  nothing  of  the  alleged  alteration  and  did 
not  authorize  any  one  to  make  or  change  the  obligation 
in  any  respect. 

Although  the  addition  of  a  seal  after  the  signature  of 
the  maker  of  a  note  is  such  a  material  alteration  as  will 
avoid  the  instrument  (Biery  v.  Haines,  5  Whar.  563)  it 
is,  however,  a  familiar  rule  of  law  that  an  alteration  by  a 
third  person,  without  the  knowledge  or  consent  of  the 
parties  to  the  writing,  cannot  in  any  way  affect  the  hold- 
er's right,  nor  impair  the  effect  of  the  instrument  in  its 
original  form :  Kountz  v.  Kennedy,  63  Pa.  187 ;  Robert- 
son V.  Hay,  91  Pa.  242. 

While  in  a  proceeding  to  open  a  judgment  evidence 
given  by  defendant  showing  alteration  subsequent  to 
execution  of  the  instrument  upon  which  the  judgment  is 


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BOWMAN,  Appellant,  v,  BERKEY  et  at.  331 

1918.]  Opinion  of  the  Court. 

basedy  is  ample  to  meet  the  burden  imposed  by  law  upon 
him  to  make  a  good  defense  by  evidence  sufficient  to  jus- 
tify submission  to  the  jury  and  to  sustain  a  verdict  for 
defendant,  if  so  found  by  the  jury,  it  is  contended  here 
that  the  uncontradicted  testimony  of  plaintiff  and  her 
witnesses  to  the  effect  that  the  addition  of  the  seal  was 
not  made  by  her  or  by  any  one  for  her,  at  her  request, 
shifted  to  defendant  the  burden  of  showing  who  was  re- 
sponsible for  its  presence  on  the  note. 

The  rule  in  this  class  of  cases  is  that  when  an  erasure, 
alteration  or  interlineation  appears  on  the  face  of  an  in- 
strument, there  is  primarily  a  presumption  in  favor  of 
innocence  and  that  the  change  was  made  before  execu- 
tion: Simpson  v.  Stackhouse,  9  Pa.  186;  Robinson  v. 
Myers,  67  Pa.  9.  If  the  alteration  does  not  appear  to  be 
beneficial  to  the  party  offering  the  writing,  or  if  it  is 
opposed  to  his  interest,  or  if  made  with  the  same  pen  and 
ink  and  in  the  same  handwriting  as  the  body  of  the  writ- 
ing, this  presumption  remains  unchanged.  If,  however, 
the  alteration  is  of  a  material  part  and  is  beneficial  to 
the  party  offering  the  writing,  or  if  there  is  a  change  on 
the  face  of  the  instrument  which  appears  suspicious,  the 
presumption  disappears  and  the  burden  is  on  the  party 
offering  the  writing  to  explain  the  alteration  to  the  sat- 
isfaction of  the  jury:  Henry's  Penna.  Trial  Ev.,  page 
184,  Section  197,  and  cases  cited.  In  the  present  case 
the  alleged  alteration  is  material  and  beneficial  to  the 
party  offering  it,  as  the  seal  prevents  the  running  of  the 
statute  of  limitations  as  applicable  to  an  unsealed  note. 
According  to  the  testimony  of  defendant,  the  addition  is 
in  a  different  handwriting,  and  was  made  at  a  time  sub- 
sequent to  the  signing  of  the  paper.  While  plaintiff 
does  not  admit  the  subsequent  alteration,  defendant's 
testimony  is  not  directly  denied,  plaintiff  merely  dis- 
claiming all  knowledge  of  the  matter,  contenting  herself 
with  the  statement  that  no  alteration  was  made  by  her 
or  for  her  with  her  authority.  Such  testimony  is  wholly 
insufficient  to  enable  the  court  to  say  as  matter  of  law 


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332  BOWMAN,  Appellant,  v.  BERKET  et  al. 

Opinion  of  the  Court.  [259  Pa. 

that  she  has  met  the  burden  and  satisfactorily  account- 
ing for  the  altered  condition  of  the  writing.  As  the  evi- 
dence at  present  stands,  the  real  dispute  in  the  case  is 
not  so  much  as  to  the  fact  of  adding  the  seal  as  by  whom 
added,  that  is,  by  Krise  or  by  some  other  person,  either 
with  or  without  his  authority,  and  this  question  is  one 
of  fact  for  the  jury:  Martin  v.  Kline,  157  Pa.  47S. 
Under  these  circumstances,  the  court  did  not  abuse  its 
discretion  in  opening  the  judgment. 

There  is  no  merit  in  the  contention  that  the  petition  to 
open  was  res  adjudicata  of  the  question  involved  because 
of  the  dismissal  of  a  previous  rule  taken  to  strike  off  the 
judgment.  A  judgment  can  be  stricken  off  only  for  ir- 
regularities appearing  on  the  face  of  the  record.  In  the 
present. case,  assuming  the  seal  is  in  a  different  hand- 
writing, and  appeared  on  its  face  to  have  been  written 
subsequent  to  the  other  signatures,  this  is  not  an  irregu- 
larity warranting  the  striking  off  of  the  judgment.  The 
seal  may  have  been  written  by  a  third  person  before  the 
note  was  signed  or  subsequently  added  with  the  consent 
of  all  the  parties.  Therefore,  no  adequate  reason  exists 
for  making  absolute  that  rule.  While  it  is  true  the  court 
might  have  treated  the  rule  as  one  to  open  judgment  and 
proceeded  accordingly  (Williams  v.  Notopolos,  247  Pa. 
554)  it  was  not  bound  to  do  so,  and,  in  absence  of  a  mo- 
tion to  amend  made  by  defendant,  the  rule  was  properly 
discharged,  and  such  order  is  not  in  any  sense  a  decision 
'  on  the  merits  pleadable  in  bar  of  the  present  proceedings. 

Nor  can  we  agree  with  the  contention  that  defendant 
was  guilty  of  laches  in  taking  the  present  rule.  Judg- 
ment was  entered  November  5,  1914,  and,  on  November 
28th  following,  a  rule  was  granted  to  show  cause  why 
the  judgment  should  not  be  stricken  from  the  record, 
which  rule  was  discharged  September  6,  1916,  and  Sep- 
tember 14, 1916,  a  petition  to  open  judgment  was  entered 
and  rule  granted  thereon.  This  state  of  the  record  does 
not  indicate  laches  on  the  part  of  defendant. 

The  judgment  of  the  court  below  is  affirmed. 


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PITTSBURGH  RYS.  CO^  Appel.,  v,  CARRICK  BORO.  333 

1918.]  Syllabus. 


Pittsburgh  Railways  Company  et  al.,  Appellants, 
V.  Borough  of  Carrick  et  al. 

Boroughs — Street  railways — Townships — Orant  of  right  to  oper- 
ate road — Resolution — Minu^^es  of  meeting — Right  to  construct  sid- 
ings and  switches — "Switches" — Subsequent  incorporation  of  bor- 
ough— Construction  of  tracks  into  new  car  bam — Interference  by 
borough — Laches — Acquiescence — Ratification — BUI  in  equUy — In- 
junction^ 

1.  Laches  may  be  imputed  to  the  Commonwealth  or  to  a  munici- 
pality as  well  as  to  an  individual. 

2.  Where  the  tracks  of  a  street  railway  company  have  occupied 
a  township  road  pursuant  to  authority  of  the  township^supervisors 
for  a  period  of  fourteen  years,  at  the  end  of  which  time  a  borough 
was  erected  embracing  the  road  in  question,  the  fact  that  the  rail- 
way's right  to  occupy  the  road  was  not  challenged  until  twelve 
years  thereafter,  is  strong  evidence  of  acquiescence  on  the  part  of 
the  borough  authorities. 

8.  The  manner  in  which  the  consent  of  so  elementary  an  organi- 
zation as  a  township,  where  it  is  requisite,  is  given,  is  not  so  im- 
portant as  that  the  fact  of  its  being  given  should  clearly  appear. 
Although  action  should  be  taken  by  means  of  a  formal  resolution, 
duly  recorded  in  the  minutes  of  the  meeting,  nevertheless,  where 
the  consent  of  the  supervisors  is  evidenced  by  a  written  instrument 
duly  signed  and  acknowledged  by  them,  their  failure  to  have  a 
minute  of  the  transaction  entered  upon  their  records  cannot  operate 
to  invalidate  the  consent. 

4.  Though  the  obtaining  of  a  municipality's  consent  to  occupy 
any  of  its  streets  be  a  condition  precedent  to  the  lawful  exercise 
of  the  power  to  do  so  by  a  railway  company,  nevertheless  where  the 
consent  has  not  been  obtained  in  advance,  there  may  be  a  subse- 
quent ratification. 

5.  While  strictly  speaking  a  switch  is  a  mechanical  arrangement 
of  movable  parts  of  rails  for  transferring  cars  from  one  track  to 
another,  the  word  is  commonly  used  as  a  synonym  for  siding  and 
turnout 

6.  The  rule  that,  even  where  not  expressly  given,  the  right  to 
build  switches  and  sidings  is  included  as  a  necessary  incident  to 
the  grant  of  the  right  to  biiild  a  railroad,  is  applicable  to  street 
railways  as  well  as  to  ste^m  railroads. 

7.  Borough  authorities  may  exercise  reasonable  control  over  the 
manner  in  which  switches  are  laid  or  sidings  constructed. 

8.  Switches  and  sidings  should  be  laid  so  as  to  cause  the  least 


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334  PITTSBURGH  RTS.  CO.,  Appel.,  v.  CARRICK  BORO. 
Syllabus— Statement  of  Facts.  [259  Pa. 

possible  inconvenience  to  traffic,  and  if  there  be  any  irreconcilable 
controversy  upon  this  subject,  a  court  of  equity  will  have  jurisdic- 
tion to  determine  what  b  a  reasonable  occupancy  of  the  street 
under  the  circumstances. 

9.  On  the  hearing  of  a  bill  in  equity  brought  by  a  street  railway 
company  to  enjoin  a  borough  from  interfering  with  the  laying  of 
switches  connecting  complainant^s  tracks  in  the  highway  with  its 
car  bam,  it  appeared  that  a  township  in  1890  granted  authority  to 
complainant  to  lay  "a  single  or  double  track  railway  with  the  nec- 
essary sidings,  turnouts  and  switches,"  and  to  maintain,  operate 
and  use  such  railway  on  a  certain  road  within  its  limits.  In  1904 
a  borough  was  created  including  such  road  within  its  limits.  In 
1905  the  company  paved  part  of  the  street  on  either  side  of  its 
tracks  at  considerable  cost.  In  1916  the  railway  attempted  to  lay 
switches,  wholly  on  the  cartway  of  the  street  and  on  its  own  side- 
walk, from  its  main  tracks  to  an  abutting  lot  on  which  it  had  erected 
a  car  barn.  The  borough  authorities  denied  the  right  to  construct 
such  switches  and  threatened  to  prevent  its  exercise.  Held,  (1) 
the  complainant  company  had  the  right  and  authority  to  lay  sidings 
and  switches,  and  (2)  the  decree  of  the  lower  court  dismissing  the 
bill  was  reversed,  the  bill  reinstated  and  the  record  remanded  with 
directions  that  an  injunction  be  issued. 

10.  In  such  case  the  fact  that  after  the  borough  was  incorpo- 
rated it  widened  the  road  by  adding  five  feet  upon  either  side  is 
immaterial. 

Breen  v.  Pittsburgh,  Harmony,  Butler  &  New  Castle  Ry.  Co., 
220  Pa.  612,  distinguished  by  the  fact  that  there  the  rights  of  an 
abutting  owner  were  aflFected. 

Supreme  Court,  Practice — Statement  of  questions  involved, 

11.  The  only  questions  that  will  be  considered  on  appeal  are 
those  presented  by  the  statement  of  the  questions  involved. 

Argued  Oct.  15, 1917.  Appeal,  No.  146,  Oct.  T.,  1917, 
by  plaintiflfs,  from  decree  of  C.  P.  Allegheny  Co.,  Oct.  T., 
1916,  No.  2056,  in  equity,  dismissing  bill  in  equity  for 
injunction  in  case  of  Pittsburgh  Railways  Company, 
Consolidated  Traction  Company  and  The  Suburban 
Rapid  Transit  Street  Railway  Company,  Corporations 
of  Pennsylvania,  v.  The  Borough  of  Carrick,  a  Munici- 
pal Corporation,  and  Charles  F.  White,  J.  A.  Haupt, 
John  McCarthy,  Harry  Beardshaw  and  John  Seiferth, 
Members  of  the  Council  of  the  Borough  of  Carrick.     Be- 


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PITTSBURGH  RYS.  CO.,  Appel.,  v.  CARRICK  BORO.  335 
1918.]  Statement  of  Facts — Arguments, 

fore  Bkown,  C.  J.  Poitbb,  Moschziskbb,  Frazer  and 
Walung,  J  J.    Reversed. 

Bill  in  equity  for  injunction  to  restrain  a  borough 
from  interfering  with  operations  of  comJ)lainant  com- 
pany in  laying  switches  connecting  its  tracks  in  the  high- 
way with  its  car  barn.     Before  Shafbr,  P.  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

The  lower  court  dismissed  the  bill.  Plaintiffs  ap- 
pealed. 

Error  assigned,  among  others,  was  in  dismissing  the 
bill. 

E.  W.  Smithy  of  Reed,  Smithy  Shaw  d  Bealy  with  him 
A.  W.  RohertsoUy  for  appellants. — The  grant  of  the  right 
to  operate  a  railway  carries  with  it  the  right  to  construct 
necessary  sidings,  turnouts  and  switches :  Vernon  Town- 
ship V.  United  Natural  Gas  Co.,  256  Pa.  435 ;  Meixell  v. 
Northampton  Central  Street  Ry.  Co.,  7  Northampton 
County  Reports  274 ;  Jefferson  County  v.  Slagle,  66  Pa. 
202 ;  Pennsylvania  Railroad  v.  Montgomery  County  Pas- 
senger Railway,  167  Pa.  62;  Scranton  Traction  Com- 
pany V.  Delaware  &  Hudson  Canal  Company,  1  Superior 
Ct.  409 ;  Beaver  Borough  v.  Beaver  Valley  Railroad  Co., 
217  Pa.  280;  The  Cleveland  &  Pittsburgh  Railroad  Co. 
V.  Speer,  56  Pa.  325 ;  Borough  of  Pottsville  v.  People's 
Railway  Company,  148  Pa.  175;  Black  v.  The  Philadel- 
phia &  Reading  Railroad  Co.,  58  Pa.  249. 

The  rule  as  to  the  construction  of  switches,  turnouts 
and  sidings  by  railroads  is  applicable  to  street  railways : 
Rafferty  v.  Central  Traction  Co.,  147  Pa.  579. 

John  C.  Bane,  with  him  William  M.  Ewing,  for  appel- 
lees.— The  power  of  the  borough  to  give  or  refuse  consent 
to  the  occupation  of  its  streets  is  unqualified :  Miners- 
ville  Borough  v.  Schuylkill  Electric  Railway  Company, 
205  Pa.  394;  West  Chester  Borough  v.  Postal  Telegraph- 


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336  PITTSBURGH  RYS.  CO.,  Appel.,  v.  CARRICK  BORO. 
Arguments — Opinion  of  the  Court.  [269  Pa. 

Cable  Company,  227  Pa.  381 ;  Carlisle  &  Mechanicsburg 
Street  By.  Company's  App.,  245  Pa.  561;  City  of  Mc- 
Keiesport  v.  McKeesport  and  Reynoldton  Passenger  Ry. 
Company,  252  Pa.  142. 

The  written  consent  given  by  the  township  supervi- 
sors to  complainants  to  operate  its  railway  on  the  road 
in  question,  no  minute  or  record  thereof  having  been 
made  in  the  proper  books  of  the  township,  was  not  an 
oflScial  act  and  is  a  nullity:  Pennsylvania  Railroad  v. 
Montgomery  County  Passenger  Ry.,  167  Pa.  62;  Ta- 
maqua  and  Lansford  Street  Ry.  Company  v.  Inter-Coun- 
ty  Sti-eet  fiy.  Company,  167  Pa.  91 ;  Union  Street  Ry. 
Company  v.  Hazleton  and  North  Side  Electric  Ry.  Com- 
pany, 3  D.  R.  785. 

The  term  "sidings,  turnouts  and  switches"  in  the  al- 
leged township  grant  must  be  construed  to  mean  such 
sidings,  turnouts  and  switches  as  were  necessary  to  the 
operation  of  the  railway  within  the  limits  of  the  road : 
Breen  v.  Pittsburgh,  Harmony,  Butler  and  New  Castle 
Ry.  Company,  220  Pa.  612. 

Opinion  by  Mr.  Justice  Pottbe,  January  7, 1918 : 
This  was  a  bill  in  equity  filed  by  the  Pittsburgh  Rail- 
ways Company,  the  Consolidated  Traction  Company, 
and  the  Suburban  Rapid  Transit  Street  Railway  Com- 
pany, against  the  borough  of  Carrick  and  five  individ- 
uals, members  of  the  council  of  that  borough,  for  the  pur. 
pose  of  preventing  the  defendants  from  interfering  with 
the  operations  of  the  railways  company  in  laying 
switches  connecting  its  tracks  in  the  highway  with  its 
car  barn.  A  preliminary  injunction  was  granted,  which^ 
upon  final  hearing  in  the  court  below,  was  dissolved,  and 
the  bill  dismissed.    Plaintiffs  have  appealed. 

The  facts,  practically  undisputed,  appear  in  the  find- 
ings of  the  trial  judge,  substantially  as  follows:  The 
Suburban  Rapid  Transit  Street  Railway  Company  was 
incorporated  on  September  28,  1886,  and  by  various 
mergers  and  leases  has  become  part  of  the  system  of  the 


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PITTSBURGH  RYS.  CO.,  AppeL,  v.  CARRICK  BORO.  337 
1918.]  Opinion  of  the  Court. 

Pittsburgh  Railways  Company,  and  is  operated  by  it. 
By  an  agreement  in  1889,  and  a  deed  in  1893,  the  Bir- 
mingham and  Brownsville  Macadamized  Turnpike  Boad 
Company  granted  to  the  Suburban  Rapid  Transit  Com- 
pany a  right  of  way  for  a  street  railway,  with  necessary 
turnouts  and  switches,  on  its  turnpike  road,  which  it 
operated  as  a  toll  road  in  Baldwin  Township,  the  road 
being  of  the  i^ridth  of  fifty  feet.  On  June  17,  1890,  the 
two  supervisors  of  Baldwin  Township  granted  to  the 
street  railway  company  the  right  to  lay  a  single  or  dou- 
ble track  railway  with  the  necessary  sidings,  turnouts 
and  switches,  and  to  use  electricity  as  its  motive  power, 
and  to  put  up  such  poles  and  wires  as  were  necessary 
for  its  overhead  system,  along  a  number  of  roads  in  the 
township,  including  the  Brownsville  turnpike.  The  Sub- 
urban Rapid  Transit  Railway  Company  constructed  and 
operated  a  single  track  street  railway  on  the  Brownsville 
road  before  1890,  which  it  or  its  successors  afterwards 
converted  into  a  double  track  railway.  The  borough  of 
Carrick  was  incorporated  in  1904  from  territory  in  that 
part  of  the  township  of  Baldwin  through  which  the 
Brownsville  road  ran,  and  this  road  thereupon  became  a 
street  of  the  borough. 

In  1905  the  borough  of  Carrick  widened  the  Browns- 
ville road  to  a  width  of  sixty  feet  by  adding  five  feet  to 
each  side,  and,  as  part  of  this  improvement  and  the  pav- 
ing of  the  street,  the  plaintiflp  paid  for  the  paving  of  the 
tracks  and  three  and  a  half  feet  on  each  side,  at  a  cost 
of  some  thirty  thousand  dollars  or  more.  When  the 
borough  was  incorporated  the  railways  company  had  a 
car  barn  in  the  borough,  which  was  connected  by 
switches  with  its  tracks  on  the  street. 

Until  a  short  time  ago,  the  plaintiflf  company  has  been 
running  single  truck  cars  upon  the  road  in  question,  and 
these  have  been  stored  in  its  car  barn.  The  management 
lately  reached  the  conclusion  that  it  would  be  wise  to  use 
larger  cars,  with  double  trucks,  and,  therefore,  purchased 
a  number  of  such  cars,  they  being  more  economical  and 
Vol.  ccux— 23 


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338  PITTSBURGH  RTS.  CO.,  AppcL,  v.  CARRICK  BORO, 
Opinion  of  the  Court.  [259  Pa. 

convenient  in  operation  than  the  old  cars,  and  they  also 
afford  better  accommodations  to  the  public.  The  car 
barn  now  in  use  is  not  adapted  for  storing  cars  of  this 
size^  and  the  building  and  plot  of  ground  upon  which  it 
is  erected  does  not  afford  suflScient  space  to  store  as 
many  cars  of  the  large  type  as  the  company  wishes  to 
store  in  that  neighborhood.  The  plaintiff  company^ 
therefore,  recently  purchased  additional  ground  at  the 
southeast  comer  of  Woodlawn  avenue  and  Brownsville 
road  for  the  purpose  of  building  a  new  car  bam  thereon. 
Thereafter  it  applied  to  the  council  of  the  borough  of 
Carrick  for  permission  to  lay  switches  from  the  tracks 
on  the  Brownsville  road,  across  the  pavement  into  this 
lot  so  purchased,  in  order  that  it  might  take  its  cars  in 
and  out  of  the  barn  which  it  proposed  to  build ;  but  this 
permission  was  refused.  Sometime  thereafter  applica- 
tion was  made  by  the  street  railway  company  to  the 
burgess  of  the  borough,  for  a  permit  to  lay  such  tracks, 
and  the  desired  permit  was  issued  by  the  burgess.  There- 
after, on  September  26,  1916,  the  Pittsburgh  Railways 
Company  attempted  to  lay  switches  from  its  tracks  to 
the  lot  in  question,  but  it  was  prevented  from  doing  so 
by  members  of  the  council,  and  by  the  police  of  the  bor- 
ough. 

It  clearly  appears  from  the  record  that,  in  1890,  the 
supervisors  of  Baldwin  Township  gave  to  the  street  rail- 
way company  their  written  consent  to  construct  or  lay 
down  on  the  road  ^^a  single  or  double  track  railway  with 
the  necessary  sidings,  turnouts  and  switches,  and  to 
maintain,  operate  and  use  such  railway,'^  during  the 
term  of  the  company's  charter,  and  it  further  appears 
that,  acting  under  the  consent  so  given,  the  street  rail- 
way company  constructed  its  line  of  railway  and  oper-^ 
ated  it  on  the  highway  then  in  the  township  of  Baldwin, 
for  some  fourteen  years  prior  to  the  incorporation  of  the 
borough ;  and  that  its  right  to  so  build  and  operate  was 
not  questioned  by  the  authorities  of  the  borough  for  scwne 
twelve  years  therefif ter,  making  in  all  a  period  of  some 


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PITTSBURGH  RTS.  CO.,  Appel.,  v.  CARBICK  BORO.  339 
1918.]  Opinion  of  the  Ceurt. 

twenty-six  years  of  unquestioned  use  of  the  highway  by 
the  street  railway  company.    If,  during  the  fourteen 
years  that  the  territory  in  question  remained  in  the 
township,  the  right  of  the  street  railway  to  occupy  the 
highway  remained  unchallenged,  it  is,  to  say  the  least, 
doubtful  whether  the  authorities  of  the  borough,  which 
was  created  after  that  time,  had  any  standing  which 
would  properly  enable  them  to  raise  the  question.     The 
fact  that  they  made  no  eflPort  to  do  so  for  twelve  years 
afterward  is  strong  evidence  of  acquiescence,  upon  the 
part  of  the  borough  authorities,  in  the  claim  of  the  street 
railway  to  rightful  occupation  of  the  highway.    Laches   \ 
may  be  imputed  to  the  Commonwealth  as  well  as  to  an     I 
individual:  Com.  v.  Bala  &  Bryn  Mawr  Turnpike  Co.,     I 
153  Pa.  47,  53;   Bailey's  Est.,  241  Pa.  230,  232.    And,    I 
if  the  Commonwealth  may  be  charged  with  laches,  clear- _/ 
ly  a  municipality  is  not  immune. 

In  the  present  case,  when  tlie  street  railway  was  pro- 
jected the  highway  in  question  was  in  the  possession, 
and  under  the  control,  of  a  turnpike  company,  and,  ac- 
cording to  the  testimony  of  the  attorney  for  the  town- 
ship supervisois,  it  was  an  open  question  whether,  under 
the  circumstances,  the  consent  of  the  supervisors  was 
necessary.  But  it  was  considered  wiser  to  obtain  their 
consent,  if  possible,  and  accordingly  the  supervisors  met, 
and  discussed  the  question,  and  signed  a  paper  giving 
their  consent  to  the  construction  of  the  railway  upon  the 
turnpike.  They  also  acknowledged  this  paper  in  due 
form  before  a  notary  public.  There  was  no  township 
clerk,  and  no  minute  of  the  transaction  was  entered  upon 
any  township  record.  It  is  this  feature  which  affords 
the  only  ground  for  objection  to  the  validity  of  the  grant 
of  authority  by  the  supervisors.  The  manner  in  which 
the  consent  of  so  elementary  an  organization  as  a  town- 
ship is  given,  where  it  is  requisite,  is  not  so  important 
as  that  the  fact  of  its  being  given  should  clearly  appear. 
In  such  cases  action  should  be  taken  by  means  of  a 
formal  resolution,  duly  recorded  in  the  minutes  of  the 


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840  PITTSBURGH  RYS.  CO.,  Appel.,  v.  CARRICK  BORO. 
Opinion  of  the  Court.  [259  Pa. 

meeting.  But  where,  as  here,  the  consent  of  the  town- 
ship superyisors  was  evidenced  by  a  written  instrument 
duly  signed  and  acknowledged  by  them,  the  failure  of  the 
supervisors  to  have  a  minute  of  the  transaction  entei*ed 
upon  their  own  records,  cannot  operate  to  invalidate  the 
consent,  which  in  fact  was  granted.  Even  in  cases 
where  consent  has  not  been  obtained  in  advance,  as  it 
should  have  been,  there  may  be  subsequent  ratification. 
As  was  said  by  Enduch,  J.,  in  Penna.  Schuylkill  Val- 
ley R.  R.  V.  Philadelphia  &  Reading  R.  R.,  160  Pa.  277, 
in  an  opinion  approved  by  this  court  (p.  298) :  "Though 
the  obtaining  of  the  city's  consent  to  occupy  any  of  its 
streets  be  a  condition  precedent  to  the  lawful  exercise 
of  the  power  to  do  so  by  a  railroad  company,  it  cannot 
be  pretended  that,  where  the  power  has  been  exercised 
without  previous  consent,  the  act  cannot  be  subsequently 
ratified  and  legalized  by  the  city.  Nor  is  there  any 
method  prescribed  by  which  alone  consent  can  be  given 
by  the  city,  antecedently  or  subsequently.  I  agr^  with 
the  master  entirely  that  the  facts  of  this  case  establish, 
in  equity,  a  subsequent  ratification  by  the  city  of  plain- 
tiff's entry  upon  its  streets  for  the  purpose  of  construct- 
ing the  track  here  in  question,  by  virtue  of  which,  under 
the  principle  of  Com.  v.  Bala  &  Bryn  Mawr  Turnp.  Co., 
153  Pa.  47,  and  a  multitude  of  other  decisions,  it  has  di« 
vested  itself  of  the  right  to  raise  the  objection  of  want  of 
antecedent  municipal  authority." 

In  the  case  at  bar,  the  court  below  passed  over  the 
question  of  the  validity  of  the  grant  of  authority  by  the 
supervisors,  upon  the  ground  that  the  subsequent  action 
of  the  borough  of  Carrick  in  agreeing  with  the  street 
railway  company  as  to  the  shape  it  would  assume  in  pav- 
ing the  street,  was  ample  evidence  of  the  consent  of  the 
local  authorities  to  the  maintenance  of  the  street  rail- 
way as  it  then  was.  The  trial  judge  was,  however,  of  the 
opinion  that  the  plaintiff  company  was  not  authorized  to 
lay  tracks  outside  of  the  cartway  in  the  street,  and  that 
it  had  no  implied  right  to  do  so.    We  cannot  agree  with 


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PITTSBURGH  RTS.  CO.,  Appel.,  v.  CARRICK  BORO.  341 
1918.]  Opinion  of  the  Court. 

the  limitation  thus  placed  upon  the  rights  of  the  street 
railway  company.  The  grant  of  authority  from  the  su- 
pervisors, which  we  regard  as  valid,  is  broad  in  its  terms. 
It  authorizes  the  construction  of  "a  single  or  double 
track  railway  with  the  necessary  sidings,  turnouts  and 
switches."  Strictly  speaking,  a  switch  is  a  mechanical 
arrangement  of  movable  parts  of  rails  for  transferring 
cars  from  one  track  to  another.  But,  in  common  speech, 
the  word  "switch"  is  often  used  as  a  synonym  for  both 
siding  and  turnout.  In  Philadelphia  v.  River  Front  R. 
R.,  133  Pa.  134,  Mr.  Justice  Mitchell  said  (p.  139) 
that  the  three  words,  "not  only  in  popular  use,  but  in 
the  dictionaries,  are  treated  as  to  some  extent  inter- 
changeable.'- In  the  present  case  it  is  apparent  that  a 
switch  or  turnout  is  necessary  to  connect  the  car  bam 
with  the  lines  of  tracks  in  the  street.  In  the  opinion  of 
Judge  Evans  in  the  court  below,  granting  the  prelimi- 
nary injunction,  it  was  well  said,  "That  the  street  rail- 
way when  constructed  and  put  into  operation  would  re- 
quire some  place  to  store  its  cars  when  they  were  not  in 
use,^  other  than  the  tracks  on  the  street  traversed  by  the 
street  railway  company,  is  too  self-evident  a  proposition 
to  be  discussed.  It  would  not  always  be  using  all  its 
cars,  and  it  could  not  store  those  cars  on  tracks  on  the 
surface  of  the  street  that  it  traversed.  It  must  have 
some  place,  either  a  building  or  a  yard  oflP  the  line  of  the 
street,  in  which  to  store  its  cars,  and,  to  store  its  cars 
there,  it  must  have  a  track  connecting  that  point  with  its 
main  line,  and,  with  that  necessary  situation  present  to 
the  ones  who  granted  the  franchise  to  the  railway  com- 
pany to  occupy  the  streets,  they  must  have  intended  that 
the  switches  which  they  provided  for  should  include  a 
switch  running  to  the  car  barn."  In  the  same  opinion 
the  case  of  the  Cleveland  &  Pittsburgh  Tlailroad  Com- 
pany V.  Speer,  56  Pa.  325,  is  cited,  in  which  the  question 
arose  whether  the  railroad  company,  which  had  the  right 
to  occupy  the  street  with  its  main  track,  had  also  the 
right  to  connect,  by  means  of  a  switch,  its  main  line  with 


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342  PITTSBURGH  RYS.  CO.,  Appel.,  v,  CARRICK  BORO. 
Opiniou  of  the  Court.  \2b%  Pa. 

its  abutting  property  on  which  was  erected  its  engine 
house  and  shop.  Mr.  Justice  Agnbw  there  said  (p.  335) : 
"The  power  of  the  company  to  run  its  road  to  Pittsburgh, 
and  to  locate  and  construct  it  on  Preble  street,  being 
established,  it  carries  with  it  the  authority  to  make  and 
maintain  the  switches  which  are  the  direct  subject  of 
this  action.  By  the  express  words  of  this  charter,  the 
power  is  conferred  of  making  as  many  sets  of  tracks  as 
are  deemed  necessary.  But  if  this  were  not  expressed, 
it  is  clearly  to  be  inferred  from  the  general  powers  con- 
ferred and  the  essential  purposes  of  the  grant. '^  And  in 
Beaver  Boro.  v.  Beaver  Valley  Railroad  Co.,  217  Pa.  280, 
where  the  borough  authorities  had  authorized  the  con- 
struction of  the  main  tracks,  but  attempted  to  enjoin 
the  construction  of  the  siding,  alleging  that  the  company 
had  no  authority  to  construct  it,  our  Brother,  Stewart, 
after  pointing  out  that  the  use  of  the  switch  and  siding 
would  be  consistent  with  the  continued  use  of  the  street 
as  a  public  thoroughfare,  said  (p.  286) :  "Under  such 
circumstances  the  right  of  the  company  in  the  premises 
is  not  open  to  question.  The  right  to  build  the  switch 
and  siding  is  included  as  a  necessary  incident  in  the 
right  to  build  a  railroad.  So  much  we  have  repeatedly 
asserted." 

It  is  suggested  that  as  these  rulings  were  made  in 
steam  railroad  cases,  they  are  not  applicable  to  street 
railways.  But,  in  so  far  as  the  principle  under  discus- 
sion is  concerned,  there  is  room  for  no  such  distinction 
in  its  application.  In  Boro.  of  Pottsville  v.  People's 
By.  Company,  148  Pa.  175,  the  principle  was  directly  ap- 
plied to  a  street  railway. 

In  dissolving  the  injunction  in  the  present  case,  the 
trial  judge  cited  and  relied  upon  the  decision  in  Breen 
V.  Railway  Co.,  220  Pa.  612.  But  the  question  there  de- 
cided was  essentially  different.  The  railway  company 
there  proposed  to  lay  a  track  on  the  sidewalk,  between 
the  curb  line  and  the  property  line  of  complainants,  the 
adjoining  property  Owners;   and  it  was  held  that  this 


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PITTSBURGH  RYS.  CO.,  Appel.,  v.  CARRICK  BORO.  343 
1918.J  Opinion  of  the  Court 

would  be  an  unauthorized  inyasion  of  their  rights  as 
abutting  property  owners.  No  such  question  arises  in 
this  ease,  as  the  complainant  here  is  the  abutting  prop- 
erty owner,  and  is  seeking  to  connect  its  tracks  in  the 
street  with  its  own  abutting  property.  It  intends  to 
construct  its  switches  and  sidings  only  on  the  cartway 
of  the  street  and  across  its  own  sidewalk.  There  is  no 
allegation  that  it  proposes  to  touch  the  sidewalk  in  front 
of  any  premises  other  than  its  own. 

The  fact  that,  after  the  borough  was  incorporated,  it 
widened  the  Brownsville  road  by  adding  Ave  feet  upon 
each  side,  has  no  bearing  whatever  upon  the  question 
under  consideration.  When  the  additional  ground  be- 
came part  of  the  highway  it  was  subject  to  the  same  uses 
and  purposes  as  the  ground  which  had  been  previously 
occupied  as  a  highway.  It  added  to  the  desirability  of 
the  street,  and  to  the  convenience  of  the  public,  which 
made  use  of  it,  and  the  plaintiff  company  recognized  this 
fact  by  agreeing  to  increase  the  proportionate  amount 
of  paving  which  .it  should  do.  But  its  rights  upon  the 
highway,  under  its  original  grant  of  authority,  were  not 
limited  to  the  width  of  the  road  as  it  then  stood.  It 
was  entitled  to  share  with  the  rest  of  the  public  in  the 
advantages  of  a  widened  street.  The  borough  authori- 
ties may  without  doubt  exercise  reasonable  control  over 
the  manner  in  which  switches  are  laid  or  sidings  con- 
structed. The  original  grant  of  authority  provided  that 
the  work  of  construction,  with  reference  to  leaving  the 
highway  in  good  repair,  should  be  done  under  the  direc- 
tion of  the  supervisors,  who  at  that  time  constituted  the 
local  authorities  in  that  respect.  As  was  said  in  the 
opinion  granting  the  preliminary  injunction,  the  tracks 
should  be  laid  so  as  to  cause  the  least  possible  incon- 
venience to  travel.  And,  if  there  be  any  Irreconcilable 
controversy  upon  this  subject,  a  court  of  equity  will  have 
jurisdiction  to  determine  what  is  a  reasonable  occupancy 
of  the  street  under  the  circumstances. 

It  is  not  necessary  to  consider  the  sufficiency  of  the 


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344  PITTSBURGH  RYS.  CO.,  Appel.,  v.  CARRICK  BORO. 
Opiuiou  of  tlie  Court.  [250  Pa. 

i*easoiis  of  the  borough  couucil  for  refusing  its  consent 
to  the  laying  of  the  switches^  as  those  reasons  are  not  in- 
volved in  this  appeal.  The  real  question  considered  by 
the  court  below,  and  the  only  one  presented  here  by  the 
statement  of  the  question  involved,  is  the  legal  right  of 
the  railway  company,  under  its  grant  of  authority  from 
the  township,  to  lay  switches  connecting  its  main  tracks 
in  the  street  with  its  car  barn  upon  its  own  abutting 
property,  without  the  consent  of  the  borough  of  Carrick, 
incorporated  years  afterwards,  and  within  whose  limits 
lie  a  part  of  the  road  covered  by  the  township  grant. 
Upon  this  question  our  conclusion  is,  that  the  plaintiff 
company  clearly  has  the  right  and  authority  to  lay  such 
switches. 

Of  the  assignments  of  error,  the  third  to  the  fifth  in- 
clusive, the  seventh  to  the  twelfth  inclusive,  the  fifteenth 
and  sixteenth,  and  the  twenty-first  to  the  thirty-third  in- 
clusive, are  sustained.  The  decree  of  the  court  below  is 
reversed,  and  the  bill  is  reinstated,  and  the  record  is 
remitted,  with  directions  that  an  injunction  be  issued, 
restraining  the  borough  of  Carrick  and  the  other  de- 
fendants, and  their  agents  and,  employees,  from  inter- 
fering with,  preventing  or  obstructing  the  plaintiffs,  in 
the  construction,  maintenance  and  operation  of  the  nec- 
essary street  railway  switches  or  turnouts,  connecting 
their  double  tracks  on  Brownsville  road  with  their  prop- 
erty at  the  southeast  corner  of  Woodlawn  avenue  and 
Brownsville  road  in  the  borough  of  Carrick.  The  costs 
of  this  appeal,  and  in  the  court  below,  to  be  borne  by  the 
appellees. 


Fulginiti  v.  Diamond  Coal  &  Coke  Company, 
Appellant. 

Practice,  C,  P. — New  trial — Order  granting  new  trial — Judicial 
discretion. 

1.  Whenever  a  trial  court  is  convinced  that  a  verdict  baa  been 
obtained  through  improper  influence  exerted  upon  witnesses,  it  is 


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FULGIXITI  V.  DIAMOND  C.  &  C.  CO.,  Appellant.  345 
1^18.]  Syllabus — Arguincuts. 

not  only  the  right,  but  it  is  the  duty,  of  the  court  in  the  interest  of 
jiublic  justice  to  order  a  retrial  of  the  case. 

2.  A  motion  for  a  new  trial  is  always  an  appeal  to  the  discretion 
of  the  trial  courts  and  the  action  of  the  lower  court  thereon  is  re- 
viewable by  the  Supreme  Court  only  as  it  can  be  made  to  appear 
that  the  court's  action  was  a  clear  abuse  of  that  discretion. 

3.  The  action  of  a  court  in  conditioning  its  grant  of  a  motion 
for  a  new  trial  on  the  refusal  by  the  defendant  to  pay  a  certain 
sum  into  court  to  the  use  of  the  plainti£P,  in  satisfaction  of  all  his 
claims  and  demands,  is  not  free  from  criticism. 

Argued  Oct.  3, 1917.  Appeal,  No.  68,  Oct.  T.,  1917,  by 
defendant,  from  order  of  C.  P.  Washington  Co.,  Nov.  T., 
1916,  No.  51,  granting  a  new  trial,  in  case  of  George  Pul- 
giniti  V.  Diamond  Coal  &  Coke  Company.  Before 
Beown,  C.  J.,  Mbstbbzat,  Stewart,  Frazer  and  Wal- 
ling, JJ.    Affirmed. 

Trespass  to  recover  damages  for  personal  injuries. 
Motion  for  a  new  trial.    Before  McIlvainb,  J. 
The  opinion  of  the  Supreme  Court  states  the  facts. 
Verdict  for  defendant.    The  court  subsequently  grant- 
ed a  new  trial.    Defendant  appealed. 

Error  assigned  was  the  order  of  the  court. 

W.  8.  Dalzelly  of  Dalzell,  Fisher  &  Hawkins,  with  him 
n,  A.  Jones,  for  appellant,  cited:  First  Nat.  Bank  of 
Birmingham  v.  Fidelity  Title  &  Trust  Co.,  Admr.,  251 
Pa.  536 ;  McBride  v.  Daniels,  92  Pa.  332 ;  Bradwell  v. 
Pittsburgh,  Etc.,  Pass.  Railway  Co.,  139  Pa.  404 ;  Lehr 
V.  Brodbeck,  192  Pa.  535;  Stauflfer  v.  Reading,  206  Pa. 
479. 

Rufus  S,  Marriner,  with  him  James  A.  Wiley,  for  ap- 
pellee.— The  lower  court  did  not  abuse  its  discretion  in 
granting  a  new  trial :  First  Nat.  Bank  of  Birmingham  v. 
Fidelity  Title  &  Trust  Co.,  251  Pa.  536;  Wirsing  v. 
Smith,  222  Pa.  8. 


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346  PULGINITI  v.  DIAMOND  C.  &  C.  CO.,  Appellant 

Opinion  of  the  Court.  [269  Pa. 

Opinion  by  Mr,  Justice  Stewart,  January  7, 1918: 
The  action  of  the  trial  court  in  conditioning  its  grant 
of  a  new  trial  on  refusal  by  defendant  to  pay  into  court 
the  sum  of  one  thousand  dollars  to  use  of  plaintiff,  in  sat- 
isfaction of  all  his  claims  and  demands,  the  costs  to  be 
first  deducted  thereout,  is  not  free  from  criticism;  but 
that  is  now  all  passed  and  calls  for  no  further  reference, 
since  the  defendant  declined  to  accept  the  terms,  and  con- 
sequently no  injury  has  resulted  to  it  in  consequence  of 
the  action  taken.  The  trial  court  expressly  and  distinct- 
ly, in  the  opinion  filed  refusing  a  bill  of  exceptions  to  the 
preliminary  decree  complained  of,  bases  its  action  in 
granting  a  new  trial  on  the  ground  that  one  of  the  plain- 
tiflPs  witnesses  had  been  "improperly  influenced  to  testi- 
fy as  he  did  at  the  trial,"  and  states  further  that  the  in- 
terlocutory decree  was  intended  merely  as  a  condition 
on  which  the  defendant  could  avoid  the  new  trial  which 
the  court  had  determined  the  plaintiff  was  entitled  to 
for  the  reason  above  stated,  thus  making  it  plainly  evi- 
dent that  it  was  upon  the  one  consideration  above  men- 
tioned that  the  new  trial  was  ordered,  and  that  alone. 
We  see  no  error  in  this.  A  motion  for  a  new  trial  is  al- 
ways an  appeal  to  the  discretion  of  the  trial  court,  and 
the  action  thereon  is  reviewable  by  us  only  as  it  can  be 
made  to  appear  that  the  court's  action  was  a  clear  abuse 
of  that  discretion.  Here  the  court  asserts  as  a  fact  that 
a  witness  for  the  plaintiflP  had  been  improperly  influ- 
enced to  testify  as  he  did.  The  testimony  in  the  case  is 
not  before  us,  and  we  have  no  way  of  determining  to 
what  extent  the  testimony  of  the  witness  was  a  departure 
from  his  previous  declarations;  nor  is  it  material  that 
we  should  be  further  informed.  It  is  enoiigh  to  know 
that  to  the  mind  of  the  court  the  witness  had  been  im- 
properly influenced.  We  have  no  hesitancy  in  saying 
that  whenever  a  trial  court  is  convinced  that  a  verdict 
has  been  obtained  through  improper  influence  exerted 
upon  witnesses,  it  is  not  only  the  right,  but  it  is  the  duty 
of  the  court,  in  the  interest  of  public  justice,  to  order  a 


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FULGIXITI  V.  DIAMOND  C.  &  C.  CO-,  Appellant.  347 
1918.J  OpiDion  of  the  Court 

retrial  of  the  case.    And  that  was  the  case  here,  as  the 
record  before  us  shows. 

The  order  granting  a  new  trial  is  aflSrmed  and  the  ap- 
peal dismissed. 


Hunter^  Receiver,  Appellant,  v.  Henning. 

Set-off — Suit  agiUnst  defendant  individually — Set-off  of  claim 
diie  defenda/nl  in  representative  capacity — Refusal, 

1.  A  cardinal  rule  in  the  interpretation  of  statutes  of  jset-off, 
requires  that  there  be  mutuality  of  demand,  both  as  regards  the 
quality  of  the  right  and  identity  of  the  party;  by  mutuality  in 
quality  of  right  is  to  be  understood  mutuality  of  right  with  re- 
spect to  the  legal  remedy  provided  for  the  enforcement  of  the 
several  demands. 

2.  In  an  action  by  the  receiver  of  a  bank  brought  against  the 
maker  of  promissory  notes  held  by  the  bank,  the  defendant  cannot 
set-off  against  the  plaintiff's  demand,  bank  deposits  made  by  him 
in  a  fiduciary  capacity,  prior  to  the  insolvency  of  the  bank,  since  to 
permit  such  a  set-off  would  allow  the  defendant  to  pay  his  own 
debts  with  money  belonging  to  others. 

Argued  Oct.  8, 1917.  Appeal,  No.  11,  Oct.  T.,  1917,  by 
plaintiff,  from  judgment  of  Superior  Court,  April  T., 
1916,  No.  129,  reversing  judgment  of  C.  P.  Allegheny 
Co.,  Oct.  T.,  1914,  No.  1410,  for  plaintiff,  for  want  of  a 
suflScient  affidavit  of  defense,  in  case  of  David  Hunter, 
Jr.,  Receiver  of  the  Land  Trust  Company,  v.  J.  F.  Hen- 
ning.  Before  Brown,  C.  J.,  Mbstbbzat,  Pottbe,  Stew- 
art, MoscHZiSKBR,  Frazer  and  Walung,  JJ.    Reversed. 

Appeal  from  Superior  Court. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  Court  of  Common  Pleas  entered  judgment  in  favor 
of  plaintiflf.  The  Superior  Court  reversed  the  judgment 
of  the  Court  of  Common  Pleas.    Plaintiff  appealed. 

Ertor  assigned  was  the  judgment  of  the  Superior 
Court. 


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348       UUxXTER,  Receiver,  Appellant,  v.  llENxNING. 

Arguinents.  [259  Pa. 

Alexander  J.  Barron,  of  McKee,  Mitchell  &  Alter,  for 
appellant. — Demands  which  may  be  set  off  under  the 
statutes  of  set-off  must  be  due  between  the  same  parties 
and  in  the  same  right :  Darrochs'  Executors  v.  The  Ad- 
ministrator of  Hay,  2  Yeates  208;  Potter  v.  Burd,  4 
Watts  15;  Stuart  v.  Commonwealth,  8  Watts  74;  Mur- 
ray V.  Williamson,  3  Binney  135;  Wolf  v.  Bealee,  6  S.  & 
B.  241;  Henderson  v.  Lewis,  9  S.  &  R.  379;  Stuart  v. 
The  Commonwealth,  8  Watts  74. 

If  the  decision  of  the  Superior  Court  is  the  law,  the 
distinction  between  trust  funds  and  personal  funds  be- 
comes obliterated,  so  far  as  the  doctrine  of  set-off  is  con- 
cerned. 

A  set-off  will  not  be  permitted  where  to  allow  the  same 
would  be  inequitable  and  prejudice  the  rights  of  third 
persons  not  parties  to  the  suit :  Wolfersberger  v.  Bucher, 
10  S.  &  R.  10 ;  Executors  of  Henry  Darroch  v.  Adminis- 
trator of  Michael  Hay,  2  Yeates,  208;  Wilmarth  v. 
Mountford,  8  S.  &  R.  124;  Potter  v.  Burd,  4  Watts  15; 
Arnold  v.  The  Macungie  Savings  Bank,  71  Pa.  287;  Bur- 
ger V.  Burger,  135  Pa.  499;  First  Natl.  Bank  of  Lock 
Haven  v.  Mason,  95  Pa.  113 ;  Citizens  N.  Bank  v.  Alex- 
ander, 120  Pa.  476;  Patterson  v.  Marine  N.  Bank,  130 
Pa.  419-431. 

Samuel  L.  Dille,  for  appellee. — ^A  depositor  of  an  in- 
solvent bank  has  the  right  to  set  off  his  deposit  against  a 
note  due  by  him :  Jordan  v.  Sharlock,  84  Pa.  366 ;  Skiles 
V.  Houston,  110  Pa.  254;  Jack  v.  Klepser,  196  Pa.  187. 

Set-off  is  not  confined  to  the  statute.  It  is  an  equitable 
defense  and  the  courts  in  the  exercise  of  their  chancery 
powers  will  allow  it  whenever  there  is  a  special  equity 
to  be  subserved,  and  no  superior  equity  of  third  person.; 
to  be  injured :  Frantz  v.  Brown,  1  P.  &  W.  257 ;  Hibert  ^ . 
Lang,  165  Pa.  439. 

As  a  legal  defense  it  is  held  that  the  set-off  must  be  be- 
tween the  same  persons  and  in  the  same  right.  Th<^ 
rights  are  the  same  in  quality  or  mutuality  when  tli<» 


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HUNTER,  Receiver,  Appellant,  v.  HENNING.      349 
1918.]  Arguments — Opinion  of  the  Court, 

party  claiming  to  defalk  has  a  right  of  action  to  recover 
and  a  right  to  receive  the  fund  when  recovered  because 
the  legal  title  is  in  him ;  or  because  he  has  an  equitable 
right  in  the  property  itself :  Hugg  v.  Brown,  6  Wharton 
468. 

An  administrator  or  executor  deals  with  the  goods  of 
his  intestate  personally,  hence  he  may  set  off  a  claim  due 
him  as  administrator  against  his  personal  debt. 

A  trustee  having  the  right  of  action  because  the  legal 
title  is  in  him,  and  the  legal  right  to  the  property  when 
recovered,  can  use  the  same  as  a  set-off  in  an  action 
against  him  for  a  personal  debt :  Wolf  v.  Beales,  6  S.  & 
E.  241. 

Courts  in  the  exercise  of  their  equity  powers  favor  set- 
off to  prevent  circuity  of  action ;  they  have  not  limited 
their  jurisdiction  to  the  statute  but  have  frequently  gone 
beyond  it.  A  set-off  will  be  allowed  if  there  is  a  special 
equity  to  be  subserved  and  no  superior  equity  of  third 
persons  to  be  injured :  Montz  v.  Morris,  89  Pa.  392;  Hi- 
bert  V.  Lang,  165  Pa.  439. 

Opinion  by  Mr.  Justice  Stewart,  January  7, 1918: 
This  is  an  appeal  from  the  judgment  of  the  Superior 
Court,  reversing  a  judgment  of  the  Common  Pleas  Court 
of  Allegheny  County.  The  case  will  be  found  reported  in 
64th  Superior  Court  Reports,  page  36&,  The  original 
action  was  brought  by  a  receiver  of  an  insolvent  bank  to 
recover  from  the  defendant,  here  the  appellee,  the 
amount  due  on  a  note  for  f 950,  of  which  he  was  maker. 
The  liability  of  the  defendant  on  the  note  was  not  in  dis- 
pute, nor  was  the  amount  due,  namely,  |400.  The  only 
question  in  the  case  arose  with  the  attempt  on  the  part 
of  the  defendant  to  set  off  against  the  plaintiff's  demand 
two  several  deposits  that  had  been  made  by  the  defend- 
ant in  the  bank  prior  to  its  declared  insolvency,  one  to 
the  credit  of  himself  as  "executor  of  E.  O.  Anderson"  in 
1150.64,  and  one  to  the  credit  of  himself  as  "trustee  of  J. 
Dorothy  Henning,  a  minor,"  in  |205.41.    The  trial  court 


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350      HUNTER,  Receiver,  Appellant,  v.  HENNING. 

Opinion  of  the  Court  [269  Pa. 

refused  the  set-oflf  and  judgment  was  accordingly  ren- 
dered in  favor  of  the  receiver  for  the  full  amount  of  the 
claim  sued  on.  Appeal  was  taken  from  the  judgment  so 
entered  to  the  Superior  Court,  with  the  result  that  the 
judgment  of  the  lower  court  was  there  reversed,  the  ap- 
pellate court  holding  that  the  set-off  should  have  been 
allowed.  This  states  the  whole  case  on  its  facts,  and 
these  give  rise  to  a  single  question  of  law. 

Were  these  several  demands,  that  is  to  say,  the  note  on 
whicfr  suit  was  brought  and  the  several  deposits  in  bank 
offered  as  set-offs,  due  in  the  same  right?  In  other  words, 
the  right  of  action  for  the  recovery  of  the  note  being  cou- 
cededly  in  the  plaintiff,  did  the  defendant  have  a  cor- 
responding right  of  action  to  recover  from  the  bank  the 
several  deposits  above  specified?  If  he  had  such  right, 
the  cases  cited  in  support  of  the  conclusion  on  which  the 
judgment  of  the  Superior  Court  is  rested  are  not  only 
apposite,  but  fully  vindicate  the  judgment;  otherwise, 
they  come  short  of  the  purpose  for  which  they  are 
cited.  It  was  no  part  of  the  judicial  purpose  in  any 
of  these  cases  to  abate  anything  from  or  qualify  in  any 
degree  what  Gibson,  C.  J.,  in  Stuart,  v.  The  Com.,  8 
Watts  74,  calls  "a  cardinal  rule  in  the  interpretation  of 
statutes  of  set-off,"  and  which  he  says  "requires  that 
there  be  mutuality  of  demand  both  as  regai'ds  the  quality 
of  the  right  and  identity  of  parties."  By  mutuality  in 
quality  of  right  is  to  be  understood  mutuality  of  right 
with  respect  to  the  legal  remedy  provided  for  the  enforce- 
ment of  the  several  demands.  The  plaintiff  here  sues  the 
defendant  in  the  latter's  own  right,  on  his  individual 
indebtedness.  Except  as  it  is  available  for  the  defencl- 
ant  to  sue  the  bank  in  his  own  right  to  recover  the  bank 
deposits,  there  is  no  mutuality  in  quality  of  right.  This 
becomes  apparent  when  the  purpose  of  the  statute  is 
considered.  This,  as  repeatedly  declared,  is  the  avoid- 
ance of  circuity  of  action.  "The  foundation  of  set-(^,^' 
says  Mitchell,  J.,  in  Hibert  v.  Lang,  165  Pa.  439,  "is 
the  prevention  of  circuity  of  action.    It  is  therefore  the 


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HUNTER,  Receiver,  Appellant,  v.  HENNING.      351 
1918.]  Opinion  of  the  Court. 

general  rule  that  cross-demands  must  be  held  in  the 
same  persons  and  in  the  saifae  rights  so  that  actions  may 
be  maintained  thereon  each  against  the  other.^'  To  be 
mutual  the  cross-demand  here  set  up  must  be  shown  to 
belong  individually  to  the  defendant  with  corresponding 
right  to  sue  for  the  same  in  his  individual  name,  other- 
wise the  debts  cannot  be  said  to  be  due  in  the  same 
rights.  The  case  of  Wolfersberger  v.  Bucher,  10  S.  &  R. 
10,  relied  upon  as  sustaining  the  right  of  set-oflf  here 
claimed  is  not  in  any  way  inconsistent  with  what  we  have 
said,  but  supporting  rather.  There  the  action  was 
brought  on  a  note  given  by  the  defendant  for  the  price 
of  goods  purchased  at  a  sale  of  an  intestate's  effects.  The 
plaintiff  in  the  action  was  the  administrator,  but  the 
action  was  brought  in  his  individual  name,  which  the 
court,  for  reasons  unimportant  here,  held  to  be  proper, 
and  that  he  had  a  right  of  action  within  himself.  The 
debt  offered  to  be  set  off  was  due  by  the  intestate  in  his 
lifetime.  It  was  disallowed  in  the  court  below,  and  on 
appeal  the  disallowance  was  aflBrmed  by  this  court  in 
the  following  explicit  language :  "This,  then,  is  an  action 
brought  by  a  man  in  his  owoi  right  in  which  there  was  an 
offer  to  set  off  a  demand  due  by  him  as  administrator ; 
and  it  is  well  settled  that  such  set-off  cannot  be  allowed. 

In  this  case  the  plaintiff  would  be  at  liberty  to 

join  with  the  present  cause  of  action  any  demand  proper 
in  other  respects,  although  without  the  slightest  cast 
(sic)  of  being  due  to  him  in  a  representative  character; 
which  shows  he  was  the  owner  of  the  debt  and  not  mere- 
ly entitled  to  the  remedy ;  and  the  establishing  of  that 
point,  independent  of  any  other  ground,  is  decisive  of  the 
question." 

In  the  present  case,  the  action  was  brought  not  by  the- 
bank,  but  by  the  receiver  in  his  representative  capacity. 
The  oSer  of  set-off  was  a  demand  due  from  the  bank,  if 
in  any  event  to  the  defendant,  due  him  only  in  his 
representative  character  as  executor  and  as  trustee.  In 
the   case  cited,  the  decision  rested  distinctly  on  the 


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352      HUNTER,  Receiver,  Appellant,  v.  HENNING. 

Opinion  of  the  Court  [259  Pa. 
ground  of  want  of  mutuality — ^that  the  debts  due  were 
not  due  in  the  same  right.  In  the  case  in  hand^  the  de- 
mands offered  as  set-off  are  not  due  the  defendant,  J.  F. 
Henning.  If  it  be  assumed  that  the  legal  title  to  the  funds 
that  are  the  basis  of  these  demands  was  once  in  him  as 
administrator  and  trustee,  under  the  doctrine  of  Wolf- 
ersberger  v.  Bucher,  supra,  he  had  divested  himself  of 
that  legal  title  when  he  segregated  them  from  his  own 
funds  in  the  manner  he  did ;  depositing  neither  in  the 
bank  as  his  own,  but  designating  each  in  a  way  showing 
unmistakably  to  whom  it  belonged.  In  doing  so  he  put 
it  beyond  his  legal  right  to  exercise  any  control  whatever 
over  either  deposit,  unless  in  his  representative  capacity. 
His  individual  check  upon  either  deposit  the  bank  could 
have  safely  dishonored;  it  could  have  honored  such 
check  only  at  its  peril,  for  in  his  individual  capacity  it 
owed  him  nothing.  Each  deposit  was  a  special  appropri- 
ation by  the  defendant  of  trust  funds  in  his  hands ;  he 
had  no  property  right  in  either ;  neither  could  have  been 
attached  by  his  individual  creditors,  and  in  case  of  fail- 
ure of  the  bank  he  would  have  been  exempt  from  loss. 
German  National  Bank  v.  Foreman,  138  Pa.  474.  These 
deposits,  made  in  the  way  they  were,  can  only  be  regard- 
ed as  an  equitable  assignment  for  the  uses  designated. 
Nor  does  the  case  of  Wolf  v.  Beales,  6  S.  &  B.  241,  also 
cited  and  relied  on,  conflict.  There  the  defendant  was 
sued  to  recover  a  debt  he  individually  owed ;  the  cross- 
demand  he  set  up  was  plaintiff's  indebtedness  on  a  bond 
given  to  one  Pearson,  and  by  Pearson  transferred  to  the 
defendant  From  the  condition  in  the  bond  it  appears 
that  the  money  due  was  payable  to  the  obligee  named,  in 
trust  for  another.  On  this  bond  plaintiff  could  have  sued 
only  as  trustee,  not  having  the  right  of  action  thereon  in 
himself.  It  was  so  held  and  the  set-off  was  refused 
solely  on  this  ground,  the  court  by  Gibson,  J.,  saying: 
^*It  may  be  stated  as  a  general  rule,  that  the  person  hav- 
ing the  right  of  action  may  set  off  a  debt  due  to  him  as 
trustee  against  a  debt  due  by  him  in  his  own  right, ♦ 


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HUNTER,  Receiver,  Appellant,  v.  HENNING.      353 
1918.]  Opinion  of  the  Court. 

bat  it  is  extremely  clear  that  the  right  to  set-off  must 
depend  on  either  the  right  of  action  or  the  right  of  prop- 
erty, and  here  the  defendant  had  neither.  The  bond  was 
not  assignable  under  the  act  of  assembly,  being  payable 
only  to  the  obligee  himself,  who  was,  therefore,  not 
authorized  to  transfer  the  right  to  sue  on  it  at  law,  and 
the  property  in  the  money  it  was  given  t6  secure  being 
another's,  he  could  not  transfer  an  equitable  right  of  ac- 
tion, which  can  pass  only  as  an  incident  of  the  right  of 
property.  On  what  ground,  then,  could  the  defendant 
below  have  sustained  a  suit?  Only,  if  at  all,  as  trustee 
having  a  remedy — as  therefore  the  defendant  could  not 
have  sustained  the  suit  on  the  bond,  the  court  was  right 
in  refusing  to  permit  him  to  set  it  off.''  If  we  are  cor- 
rect in  saying  that  in  the  present  case  the  plaintiff  could 
not  have  maintained  an  action  against  the  bank  for  the 
recovery  of  these  deposits,  except  in  representative  ca- 
pacity, then,  instead  of  supporting  the  contention  of  the 
appellee,  the  case  goes  directly  to  the  contrary.  The 
case  of  Solliday  v.  Bissey,  12  Pa.  347,  is  readily  distin- 
guished from  the  present  one.  There  it  was  a  fact,  ex- 
pressly so  stated  by  the  court,  that  the  debt  set  off  was  a 
debt  owing  the  executors  on  their  own  contract  and  in 
their  own  right,  the  court  adding:  ^^In  all  cases  of  prom- 
ises, express  or  implied,  made  to  or  by  an  administrator 
after  the  death  of  the  intestate,  and  the  same  holds  as  to 
executors,  the  action  lies  by  and  against  the  administra- 
tor personally."  It  was  upon  this  legal  right  that  the 
set-off  was  allowed.  Solliday  v.  Bissey,  12  Pa.  347,  a  case 
cited  in  the  opinion  of  the  court  in  Jack  v.  Klepser,  196 
Pa.  187,  calls  for  no  present  consideration,  for  however 
applicable  there,  it  is  without  relation  to  the  question 
here  being  considered. 

The  case  turns  upon  the  question  of  mutuality  in  qual- 
ity of  right  with  respect  to  these  counterclaims.  The 
action  was  against  the  defendant  in  the  latter's  own 
right,  that  is  to  say,  for  his  individual  debt;  what  he 
claimed  to  set  off  was  a  demand  against  his  creditor  in 
Vol.  ccux— 23 


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354      HUNTER,  Receiver,  Appellant,  v.  HENNING. 

Opinion  of  the  Court  [259  Pa. 

which  he  had  no  property  right  himself^  not  even  the 
right  of  possession^  and  for  the  recovery  of  which  h« 
could  sue  only,  if  at  all,  in  a  representative  character. 
The  manifest  effect  of  allowing  such  a  set-off  would  be 
to  enable  a  debtor  to  pay  a  debt  of  his  own  with  money 
belonging  to  other  people.  This  cannot  receive  judicial 
sanction. 

Our  effort  has  been  to  show  the  absence  of  the  mutual- 
ity the  law  requires  in  such  cases.  If  we  have  succeeded, 
and  we  think  the  authorities  cited  support  this  view, 
then  it  must  follow  that  the  lower  court  was  correct  in 
refusing  to  allow  the  set-off  urged. 

The  judgment  of  the  Superior  Ck>urt  is  reversed. 


Herron,  for  Use  of  Murray,  Receiver,  v.  Stevenson 
et  aL,  Appellants. 

Mortgage^^Death  of  mortgagor— Decedents  estate — Scire  facias 
ckgainet  heirt — Failure  to  join  administrator — Affidavits  of  defense 
— InsuffifCiency, 

1,  While  lands  are  assets  for  the  payment  of  debts,  they  are  not 
assets  in  the  hands  of  an  administrator  and  without  an  order  of 
the  Orphans'  Court  he  has  nothing  to  do  with  them.  In  case  of  in- 
testacy they  descend  to  the  heirs,  and  if  needed  for  the  payment 
of  debts  they  must  be  converted  in  the  manner  provided  by  the 
statutes. 

2.  In  an  action  of  scire  facias  sur  mortgage,  where  it  appeared 
that  the  mortgagor  had  died  intestate,  the  heirs  were  properly  made 
parties  defendant  and  it  was  not  necessary  that  the  administrator 
of  the  decedent  be  joined,  in  the  absence  of  anything  to  show  that 
the  decedent's  real  estate  was  needed  for  the  payments  of  debts, 
and  the  court  properly  held  insufficient  an  affidavit  of  defense  which 
merely  set  up  that  the  action  could  not  be  maintained  because  the 
administrator  has  not  been  joined  as  party  defendant. 

8.  In  such  case  where  the  note  was  under  seal  there  is  no  merit 
in  the  contention  that  the  mortgagor  was  not  a  party  to  the  note 
and  it  was  therefore  without  consideration,  where  no  failure  or 
illegalily  of  consideration  is  alleged. 

4.  The  doctrine  that  interest  as  against  the  surety  does  not  be- 
gin with  the  default  by  the  principal,  but  from  the  time  when  de- 
mand was  made,  applies  only  to  cases  arising  on  official  bonds. 


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HEBRON  V.  STEVENSON  et  al.,  Appellants.       355 
1918.]  Statement  of  Faotfr- Opinion  of  the  Court 

Argued  Oct.  8, 1917.  Appeal,  No.  24,  Oct.  T.,  1917,  by 
defendants,  from  judgment  of  C.  P.  Allegheny  Ck).,  Oct. 
T.,  1916,  No.  1350,  for  want  of  a  sufficient  affidavit  of 
d^ense,  in  case  of  Andrew  W.  Herron,  for  use  of  C.  C. 
Murray,  Receiver  of  the  Fort  Pitt  National  Bank  of 
Pittsburgh,  now  for  use  of  Henry  Terheyden,  v.  Joseph 
S.  Stevenson,  Robert  A.  Stevenson,  William  T.  Steven- 
son, and  Mary  I.  Stevenson  Waugh,  Sole  Heirs  of  Mary 
I.  Stevenson,  Deceased.  Before  Mbstrbzat,  Stbwabt, 
MosGHziSKER,  Frazbr  and  Walung,  JJ.    Affirmed. 

Scire  facias  sur  mortgage. 

Rule  for  judgment  for  want  of  a  sufficient  affidavit  of 
defense.    Before  Shafbb,  P.  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  made  absolute  plaintiffs'  rule  for  judgment 
for  want  of  a  sufficient  affidavit  of  defense.  Defendants 
appealed. 

Error  assigned  was  in  making  absolute  plaintiffs'  rule 
for  judgment  for  want  of  a  sufficient  affidavit  of  defense. 

Paul  A.  Stuart,  for  appellants. — This  action  could  not 
be  maintained  because  no  administrator  had  been  ap- 
pointed for  the  intestate  mortgagor:  Brown  v.  Wagner, 
1  Monoghan  102. 

Charles  A.  Woods,  for  api)ellee. — The  heirs  were  prop- 
erly made  parties  defendant. 

Opinion  bt  Mr.  Justice  Stbwabt,  January  7, 1918 : 
The  appeal  is  from  a  judgment  entered  for  want  of  a 
sufficient  affidavit  of  defense  in  an  action  of  scire  facias 
sur  mortgage.  The  mortgage  was  given  March  14, 1901, 
by  Mary  J.  Stevenson,  to  secure  a  note  for  |3,100.00  on 
which  her  three  sons  were  endorsers,  and  for  all  renewals 
of  the  same.  The  indebtedness  on  the  note  had  been  re- 
duced from  time  to  time  until  at  the  time  of  the  last  re* 


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356       HERRON  v.  STEVENSON  et  al.,  Appellants. 

Opinion  of  the  Court.  [259  Pa. 

newal,  November  18, 1907,  it  amounted  to  but  |1,300.00, 
and  for  this  amount  a  new  note  was  then  given,  payable 
at  four  months.  This  note  has  never  been  paid  and  the 
present  demand  is  for  the  amount  due  thereon,  debt  and 
interest.  Mary  J.  Stevenson,  the  mortgagor,  died  De- 
cember 23, 1907.  No  legal  steps  have  been  taken  for  the 
settlement  of  her  estate,  and  she  is  therefore  without 
legal  representative.  The  scire  facias  was  directed 
against  the  defendants  named  as  her  heirs  at  law.  It  is 
urged  that  the  action  cannot  be  sustained  because  of 
want  of  proper  parties  defendant.  The  affidavit  of  de- 
fense alleges  nothing  with  respect  to  the  condition  of  the 
mortgagor's  estate  that  would  require  the  intervention 
of  a  personal  representative;  it  is  not  averred  that  the 
mortgaged  premises  are  required  for  the  payment  of 
debts;  except  as  it  is  so  required  the  personal  represen- 
tative would  have  nothing  to  do  with  it ;  it  descends  di- 
rectly to  the  heirs  at  law.  In  Morrison's  Est.,  196  Pa. 
80,  it  is  said:  ^^While  in  this  State  lands  are  assets  for 
the  payment  of  debts,  they  are  not  assets  in  the  hands  of 
an  administrator,  and  without  an  order  of  the  Orphans' 
Court  he  has  nothing  to  do  with  them.  In  case  of  in- 
testacy they  descend  to  the  heirs,  and  if  needed  for  the 
payment  of  debts  there  is  a  mode  pointed  out  by  the  act 
of  assembly  which  the  administrator  is  bound  to  pursue, 
'or  the  real  fund  is  not  absolutely,  but  sub  modo,  assets 
in  his  hands':  McCoy  v.  Scott,  2  Eawle  222;  Bakes  v. 
Beese,  150  Pa.  44.  'Although  the  administrator  may  as- 
sume to  act  in  his  representative  capacity  in  the  manage- 
ment of  the  real  estate  and  the  collection  of  the  income 
thereof,  he  is  merely  the  agent  of  the  heir' :  Appeals  of 
Fross  and  Loomis,  105  Pa.  258;  Walker's  App.,  116  Pa. 
419.  This  rule  has  been  strictly  adhered  to."  "The  un- 
doubted weight  <rf  authority,  when  the  question  is  not 
affected  by  statute,  is  to  the  effect  that  in  suits  of  the 
diaracter  under  consideration  the  personal  representa- 
tive is  not  a  necessary  party  in  that  if  the  heir  desires  the 
benefit  of  having  the  personal  estate  applied  in  exonera- 


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HERBON  V,  STEVENSON  et  al.,  Appellants.       357 
1918.]  Opinion  of  the  Court. 

tion  of  the  real,  he  must  enforce  the  right  by  filing  a  bill 
for  such  relief^' :  Cyc.  18,  page  549.  It  follows  that  the 
sci.  fa.  in  this  case  was  properly  directed  against  the 
heirs  of  the  mortgagor. 

Of  quite  as  little  weight  is  the  objection  urged  of  want 
of  consideration.  It  makes  not  a  particle  of  difference 
if  the  mortgagor  was  not  a  party  to  the  note  secured  by 
the  mortgage.  None  the  less  does  the  mortgage,  being 
under  seal,  import  a  consideration ;  it  expressly  recites 
that  it  is  given  as  collateral  security.  What  difference 
can  it  make  who  or  what  party  was  to  be  advantaged 
thereby?  Neither  failure  nor  illegality  of  consideration 
is  allied,  and  nothing  short  of  these  could  be  inquired 
into  with  respect  to  the  consideration. 

A  point  is  raised  that  because  no  demand  was  made  of 
payment  of  interest  between  the  default  of  the  principal 
debtor  and  the  bringing  of  the  action  against  the  defend- 
ants, standing  as  they  do  in  the  relation  of  surety  to  the 
principal  debtor,  interest  is  not  now  demandable,  on  the 
principle  that  interest  as  against  a  surety  begins  not 
with  the  default  by  the  principal,  but  from  the  time  when 
demand  was  made.  It  is  only  necessary  to  observe  in 
reply  that  the  cases  cited  in  support  are  cases  which 
arose  on  ofScial  bonds:  Foltz  v.  Tradesmen's  Trust  & 
Savings  Fund  Co.,  201  Pa.  583,  and  Pennsylvania  Co.  v. 
Swain,  189  Pa.  626,  and  the  doctrine  does  not  extend  be- 
yond  these.  The  plaintiff's  statement  showed  a  suffi- 
cient legal  cause  of  action;  nothing  is  averred  in  the 
affidavit  of  defense  that,  if  proved,  could  defeat  it. 

The  judgment  is  affirmed. 


Byrne  v.  The  Pittsburgh  Brewing  Company  et  al.. 
Appellants. 

Negligence — Master  and  servant — Calling  another  to  assist  serv- 
ant— Injuries  to  the  person  called— Judgment  for  defendant  n.  o,  v. 
1.  While  the  relation  of  master  and  servant  cannot  be  imposed 


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358  BYRNE  v.  PITTSBURGH  BRWG.  CO.  et  al.,  Appel. 

Syllabu&--A8signxu6iit  of  Errors.  [269  Pa. 

opon  a  person  without  his  consent,  express  or  implied,  a  serrant 
may  engage  an  assistant,  in  case  of  an  emergency,  when  he  is  un- 
able to  perform  the  work  alone,  and  such  assistant  becomes,  for 
the  time  being  a  servant  of  the  master  whose  employee  engaged 
him. 

2.  Where  in  such  an  emergency  such  temporaiy  empk^ee  is  in- 
jured in  consequence  oi  defects  in  the  premises  upon  which  he  is 
requested  to  work  he  may  hold  the  master  of  the  servant  who  called 
him  to  assist  liable  for  such  injury  but  in  such  case  he  must  es- 
tablish that  an  emergency  existed  sufficiently  great  to  warrant  the 
calling  upon  him  for  aid. 

8.  Where  the  driver  of  a  motor  truck,  owned  and  operated  by  a 
brewing  company,  lost  his  way  and  requested  a  friend  to  ride  with 
him  to  point  out  the  direction  in  which  he  should  go,  and  the  friend 
of  such  driver  complied  with  such  request  and  rode  for  a  distance 
in  the  motor  truck  and  was  injured  in  consequence  of  defects 
therein,  he  could  not  hold  the  owner  of  the  motor  truck  liable  for 
such  injuries  in  the  absence  of  anything  to  show  that  his  presence 
on  the  truck  was  necessary  to  guide,  the  driver  to  the  proper  road, 
particularly  where  it  further  appeared  that  the  way  was  easy  to 
find  and  that  a  description  thereof  would  have  been  sufficient. 

Argued  Oct.  9,  1917.  Appeal,  No.  48,  Oct.  T.,  1917, 
by  defendants,  from  judgment  of  C.  P.  Allegheny  Co., 
April  T.,  1915,  No.  1485,  on  yerdict  for  plaintiff,  in  case 
of  Christopher  C.  Byrne  v.  The  Pittsburgh  Brewing 
Company,  a  Corporation  Operating  the  Iron  City  Brew- 
ing Company  and  The  Pittsburgh  Brewing  Company. 
Before  Mestrbzat,  Stbwart,  Mosghziskbr,  Frazbb  and 
Walling,  JJ.    Reversed. 

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

The  opinion  of  the  Supreme  Court  states  the  facts. 

Verdict  for  plaintiff »for  f3,983  and  judgment  thereon. 
Defendants  appealed. 

Errors  assigned,  among  others,  were  in  refusing  to  di- 
rect a  verdict  for  defendant  and  in  refusing  to  enter 
judgment  for  defendant  n.  o.  v. 


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BYRNE  V.  PITTSBURGH  BftWG.  CO.  et  al.,  AppeL  359 
1918.]  Arguments — Opinion  of  the  Court. 

Arthur  E.  Young,  with  Um  Qrant  Owry,  for  appel- 
lant— ^PlaintijS  was  a  yolimteer  and  may  not  recover 
even  though  his  injuries  were  caused  by  a  defective  con- 
dition of  the  brakes :  Flower  v.  P.  B.  B.  Co.,  69  Pa.  210; 
Wischam  v.  Bickards,  136  Pa.  109;  Towanda  Coal  Co. 
V.  Heeman,  86  Pa.  418;  Missouri,  K  &  T.  By.  Co.  of 
Texas  v.  Moore,  169  S.  W.  916;  W.  B.  Conkey  Co.  v. 
Bueherer,  84  IlL  App.  633;  Langan  v.  Tyler,  U4  Fed. 
716. 

Thomas  L.  Morris,  with  him  L.  K.  d  8.  G.  Porter,  for 
appellee. — Plaintiff  was  not  a  volunteer:  Wischam  v. 
Rickards,  136  Pa.  109;  Abraham  v.  Reynolds,  5  H.  &  N. 
Exch.  142 ;  Wright  v.  The  London  &  North  Western  Ry. 
Co.,  L.  R.,  1  Q.  B.  Div.  252;  McConnell  v.  P.  R.  R.  Co., 
223  Pa.  442. 

Opinion  by  Mb.  Justice  Stewart,  January  7, 1918: 
The  accident  out  of  which  this  action  arose  occurred 
in  this  way.  The  defendant  company,  in  the  conduct  of 
its  business,  maintains  and  operates  several  gasolene 
motor  trucks  which  it  employs  in  the  delivery  of  its 
brewery  products  to  its  customers  in  the  surrounding 
country.  One  of  these  customers  was  the  proprietor  of 
what  is  known  as  the  Byrne  Hotel,  located  on  the  Butler 
plank  road  about  ten  miles  from  the  City  of  Pittsburgh. 
To  fill  an  order  for  beer  and  ice  it  had  received  from  this 
hotel,  it  loaded  one  of  these  trucks  with  the  goods  re- 
quired, placed  it  in  charge  of  a  driver  who  had  been  in 
its  employ  for  about  seven  or  eight  years  and  had  fre- 
quently driven  over  the  route,  with  directions  to  make 
the  delivery.  This  employee  drove  out  the  Butler  pike, 
a  road  running  parallel  with  the  plank  road  and  with 
which  he  was  familiar,  until  he  reached  a  point  nearly 
opposite  the  Byrne  hotel  on  the  plank  road.  At  this 
point  there  is  a  cross  road  about  a  half  mile  in  length 
leading  directly  across  to  the  plank  road,  connecting  at 
or  near  the  hotel,  and  which  he  was  accustomed  to  take 


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360  BTBNE  v.  PITTSBURGH  BRWQ.  CO.  et  al.,  Appel. 

Opinion  of  the  Court  [259  Pa* 

in  making  his  deliveries.  He  found  this  short  piece  of 
road  impassable  in  consequence  of  repairs  that  were  be- 
ing made  to  it.  Leaving  his  motor  truck  wiUi  its  load  in 
charge  of  a  man  who^  for  unexplained  reason^  had  been 
riding  with  him,  he  walked  over  to  the  hotel  and  there 
met  this  plaintiff,  a  son  of  the  proprietor,  whom  he  well 
knew,  told  him  of  the  fact  that  he  had  the  goods  for  de- 
livery on  his  truck,  where  the  truck  was,  but  that  the 
condition  of  the  road  over  from  the  pike  prevented  his 
reaching  the  hotel  by  that  way,  and  asked  to  be  informed 
how  to  get  across  by  another  way.  The  plaintiff  told 
him  that  by  continuing  on  the  pike  for  about  a  mile  he 
would  come  to  another  cross-road  leading  directly  from 
the  pike  across  to  the  plank  road  to  a  point  about  a  mile 
beyond  the  hotel.  The  driver  asked  him  to  walk  back 
with  him  to  the  motor  truck  and  ride  with  him  from  that 
point  over  the  route  he  had  suggested,  as  he  was  afraid 
of  getting  lost  if  he  attempted  it  alone.  The  plaintiff 
declined,  giving  as  his  reason  that  he  was  needed  about 
the  hotel,  it  being  near  the  dinner  hour,  but  on  being 
again  requested,  he  consented.  Together  they  walked  to 
the  motor  truck,  the  plaintiff  there  taking  a  seat  with  the 
driver  on  the  truck,  as  did  also  the  man  whom  the  driver 
had  left  in  charge  of  the  truck  and  its  load  and  who  was 
an  entire  stranger  to  the  plaintiff.  Together  the  three 
proceeded  on  their  way  up  the  pike  until  they  reached  the 
crossroad,  where  they  turned  to  the  right  into  the  cross- 
road. They  had  nearly  reached  the  end  of  this  road,  were 
very  close  to  the  plank  road,  when  towards  the  foot  of  a 
declivity,  the  truck  having  then  got  beyond  the  control  of 
the  driver,  it  ran  into  a  gulley,  with  the  result  that  the 
truck  was  thrown  over  an  embankment  and  the  plaintiff 
met  with  the  injury  for  which  he  brought  his  action. 
He  based  his  right  to  recover  on  the  ground  that  the 
proximate  cause  of  the  accident  was  defective  brakes  on 
the  motor  truck,  because  of  which  the  driver  was  unable 
to  control  the  speed  of  the  truck  on  the  declivity.  The 
verdict  of  the  jury  awarding  the  plaintiff  damages  in 


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BYRNE  V,  PITTSBURGH  BRWG.  CO.  et  al.,  Appel.  361 
lt)18.]  Opinion  of  the  Court. 

13,983.00  implies  a  finding  of  negligence  on  the  part  of 
the  defendant  in  the  respect  indicated.  At  the  conclu- 
sion of  the  testimony  defendant's  counsel  asked  for  bind- 
ing instructions  in  favor  of  the  defendant.  This  was 
refused.  A  motion  for  judgment  non  obstante  followed, 
which  was  also  refused,  and  judgment  was  accordingly 
entered  on  the  verdict.  Of  the  errors  assigned  on  the 
appeal,  one  only  need  be  considered. 

If  the  plaintiff  is  entitled  to  recover  at  all  against  this 
defendant,  it  must  be  because  he  stood  in  the  relation  of 
servant  or  employee  of  the  defendant  and  was  in  the 
course  of  his  employment  when  he  sustained  his  injury. 
It  may  be  technically  inexact  to  speak  of  plaintiff  as  a 
volunteer,  since  it  is  not  disputed  that  he  accompanied 
the  driver  on  the  truck  at  the  latter's  request;  but  that 
is  an  immaterial  matter,  since  it  is  clear  that  he  had  no 
other  right  to  be  upon  the  truck  except  such  as  he  ac- 
quired from  the  driver.  Except  as  the  driver  could  con- 
fer sui^h  rights  the  plaintiff  stood  in  no  relation  with  the 
defendant  whatever  and  the  latter  owed  him  no  duty  of 
protection.  It  is  a  rule  universally  recognized  that  the 
relation  of  master  and  servant  cannot  be  imposed  on  a 
person  without  his  consent,  express  or  implied.  It  is 
upon  the  exception  to  this  general  rule,  which  is  quite  as 
well  settled  as  the  general  rule  itself,  that  the  plaintiff 
relies  to  establish  the  relation  of  master  and  servant  in 
this  case.  The  exception  is  that  a  servant  may  engage 
an  assistant  in  the  case  of  an  emergency  where  he  is  una- 
ble to  perform  the  work  alone.  Both  rule  and  exception 
have  been  repeatedly  recognized  and  enforced  in  our  own 
cases,  notably  in  the  case  of  Flower  v.  Penna.  R.  R.  Co., 
69  Pa.  210,  and  of  Wischam  v.  Rickards,  136  Pa.  109, 
and  neither  calls  for  discussion  further  than  to  ascertain 
whether,  from  the  evidence  adduced  on  behalf  of  the 
plaintiff,  it  can  be  rightfully  determined,  (1),  that  the 
conditions  existing  when  the  driver  requested  the  plain- 
tiff to  accompany  him  were  such  that  the  driver  would  be 
in  danger  of  becoming  lost  and  long  delayed  in  reaching 


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362  BYRNE  v.  PITTSBURGH  BRWG.  CO.  et  al.,  Appel. 

Opinion  of  the  Court.  [258  Pa. 

the  place  of  deliyery  if  he  attempted  the  road  he  was  ad- 
vised to  take^  unaccompanied  by  someone  familiar  with 
it;  and;  (2)^  whether  if  the  evidence  warrants  an  affirma- 
tive answer,  the  conditions  testified  to  constitute  such  an 
emergency  as  would  warrant  the  driver  in  employing  the 
plaintiff  in  such  way  as  to  make  him  a  servant  of  the  de- 
fendanty  entitled  to  a  servant's  rights  of  protection. 
These  were  the  questions  in  the  case,  and  the  burden  of 
establishing  both  affirmatively  was  upon  the  plaintiff. 
They  may  be  considered  together.  No  one  knew  better 
than  the  plaintiff,  because  of  his  admitted  knowledge  of 
and  familiarity  with  the  road  which  he  had  advised  the 
plaintiff  to  adopt,  what  if  any  risk  or  danger  the  driver 
would  run  of  missing  the  road,  or  losing  himself  if  he 
chose  it.  All  that  was  required  was  that  he  should  con- 
tinue on  the  road  which  he  had  traveled,  the  Butler  pike, 
for  a  distance  of  about  one  mile,  when  he  would  reach  a 
short  cross  road  about  a  half  or  three-quarters  of  a  mile  in 
length  and  the  only  cross  road  he  would  encounter,  one 
that  led  over  to  the  plank  road  on  which  was  located  the 
hotel  at  which  the  delivery  was  to  be  made,  this  cross 
road  being,  as  plaintiff  himself  testified,  in  excellent  con- 
dition and  in  no  way  confusing,  since  no  other  roads  led 
from  it  When  the  plaintiff  was  asked  whether,  on  the 
road  he  described,  it  would  be  possible  for  the  driver  to 
get  lost,  his  only  reply  was  that  he  '^did  not  suppose  any- 
body would  get  lost  as  long  as  they  had  a  tongue.^'  No- 
where in  his  testimony  does  he  pretend  that  in  acceding  to 
the  request  of  the  driver  to  accompany  him  he  did  so  in 
order  to  save  him  from  mistaking  the  road ;  but,  on  the 
contrary,  he  repeatedly  asserted  that  his  only  purpose  in 
accompanying  him  was  to  save  time.  How  this  was  to  re^ 
suit  he  nowhere  says.  Nor  does  a  single  witness  testify 
that  the  situation  in  which  the  driver  found  himself 
called  for  any  guidance  whatever.  On  the  case  as  pre- 
sented by  the  plaintiff  and  his  witnesses,  it  is  simply  in- 
credible that,  in  the  conditions  there  present,  traveling 
from  one  thoroughfare  over  an  established  side  or  cross 


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BYENE  v.  PITTSBURGH  BEWG.  CO.  et  al.,  AppeL  363 
1.9ia]  Opinion  of  the  Court. 

road  for  a  half  or  three-quarters  of  a  mile  to  another 
main  thoroughfare  which  he  wished  to  reach,  a  full 
grown  man  and  an  experienced  driver^  in  such  a  country 
as  that  is,  would  be  in  danger  of  losing  himself.  It  is 
none  the  less  incredible  that  under  the  conditions  shown 
to  have  existed  such  an  one  could  be  left  in  uncertainty 
as  to  the  particular  road  he  was  advised  to  take.  -  This 
is  the  turning  point  in  the  case.  Did  there  exist  a  neces- 
sity for  the  plaintiff's  assistance?  Did  an  emergency 
actually  exist?  The  law  in  such  cases  is  thus  stated  in 
Fiesel  v.  The  New  York  Edison  Co.,  123  App.  Div.  676, 
108  N.  Y.  Supp.  130:  "An  emergency  employee  called 
on  by  another  employee  to  assist  him,  for  however  short 
a  time,  becomes  a  fellow  servant  and  subject  to  the  rules 
of  law  applicable  to  the  injury  of  a  servant  by  his  fel- 
low, but  he  must  be  so  called  as  of  necessity  in  order  to 
make  him  an  employee,  for  a  servant  has  no  authority 
to  call  on  another  to  help  him  in  his  master's  business 
as  of  necessity,  unless  the  necessity  exists.  If  he  can  do 
the  work  himself,  there  is  no  occasion  of  necessity  to 
imply  power  in  him  to  employ  assistance."  This  is  sim- 
ply the  common  law  rule.  At  the  furthest,  the  assist- 
ance rendered  by  the  plaintiff  in  this  case  may  be  con- 
strued as  serving  the  convenience  or  pleasure  of  the 
driver;  but  this  comes  far  short  of  a  necessity  calling 
for  assistance.  The  emergency,  as  used  in  the  rule,  im- 
plies necessity  for  assistance.  Manifestly  here  was  no 
emergency.  There  is  absolutely  nothing  in  the  evidence 
which  brings  the  defendant  into  any  relation  with  the 
plaintiff  out  of  which  a  duty  of  protection  could  possibly 
arise.  The  case  called  for  judgment  non  obstante,  and 
it  was  error  to  refuse  it. 

The  judgment  entered  is  accordingly  reversed,  and 
judgment  is  here  entered  for  the  defendant. 


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364  ALAhfD,  Appellant,  v.  CLUETT,  PEABODY  &  CO. 

Syllabus— Statement  of  Facta.  [259  Pa. 

Aland^  Appellant,  v.  Cluett,  Peabody  &  (Company. 

Contracts  —  Bailment  —  Written  contracts  —  Purchase-price  — 
Agreement  as  to  purchase-price — Insufficiency — Plaintiff's  stale^ 
ment — Quantum  meruit. 

A  manufacturer  of  shirts  sent  a  circular  to  various  persons,  en- 
gSLged  in  the  business  of  trimming  windows,  offering  prizes  for  de- 
signs, and  requesting  photographs  thereof.  The  owner  of  certain 
designs  mailed  photographs  of  them  to  plaintiff,  with  a  formula 
for  making  the  substance  out  of  which  the  designs  were  to  be  con- 
structed and  a  notice  on  the  backs  of  the  photographs  Hhat  the  de- 
signs were  valuable,  and  that  the  photographs  were  to  be  returned. 
On  the  back  of  one  of  the  photographs  was  an  endorsement  that  the 
value  of  the  original  design  was  $2,000,  and  on  the  other  photo- 
graph that  it  was  worth  $3,000,  and  that  the  formula  was  worth 
$5,000.  The  owner  of  the  photographs  wrote  plaintiff  that  if  the 
conditions  on  the  backs  of  the  photographs  were  acceptable  they 
could  use  them  in  their  exhibits,  otherwise  they  should  return 
them.  The  manufacturer  replied  merely  stating  that  the  photo- 
graphs and  letter  had  been  received.  The  photographs  were  used 
in  the  exhibition,  were  not  returned  to  the  owner  and  were  subse- 
quently lost.  In  an  action  on  an  expres^  contract  to  recover  the 
amount  endorsed  on  the  reverse  side  of  the  photographs  as  their 
value  and  that  of  the  formula,  there  was  no  evidence  that  defend- 
ant's attention  was  ever  drawn  to  the  endorsement  or  that  he  ever 
agreed  to  pay  the  amounts  therein  stipulated.  Held,  (1)  the  warn- 
ing contained  in  plaintiff's  letter  to  defendant  was  sufficient  to  in- 
dicate that  the  photographs  and  formula  were  valuable  and  merely 
bailed  to  defendant,  and  defendants  are  liable  for  their  reasonable 
worth,  if  properly  declared  for,  (2)  the  writing  on  the  back  of  the 
photographs  and  the  acceptance  and  use  thereof  did  not  constitute 
a  contract  to  pay  the  amount  expressed  in  such  writing,  and  (8) 
a  compulsory  nonsuit  was  properly  entered. 

Argued  Oct.  10, 1917.  Appeal,  No.  96,  Oct.  T.,  1917, 
by  plaintiflf,  from  order  of  C.  P.  Allegheny  Co.,  Sept.  T., 
1910,  No.  782,  refusing  to  take  oflf  nonsuit,  in  case  of  0. 
W.  Aland  v.  Cluett,  Peabody  &  Company,  a  Corporation 
of  the  State  of  New  York,  Registered  and  Doing  Busi- 
ness Under  the  Laws  of  Pennsylvania.  Before  Mbstrb- 
ZAT,  PoTTBE,  Stbwabt,  Mosghziskbb  and  Frazbr,  JJ. 
Affirmed. 


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ALAND,  Appellant,  v,  CLUETT,  PEABODY  &  CO.  365 
1918.]  Opinion  of  Court  below. 

Assumpsit  on  a  contract  of  sale. 

Shafbb,  p.  J.,  filed  the  following  opinion,  sur  plain- 
tiff's motion  to  take  off  nonsuit : 

The  action  is  assumpsit  upon  what  is  claimed  to  be  a 
written  contract  formed  by  letters  between  the  plaintiff 
and  defendant. 

The  defendant  is  a  manufacturer  of  shirts,  and  in  the 
year  1909  sent  a  circular  to  various  persons  throughout 
the  country  who  were  engaged  in  the  business  of  trim- 
ming windows  and  making  window  displays,  offering 
prizes  for  designs,  and  directing  that  photographs  of  the 
designs  should  be  sent  to  them. 

The  plaintiff,  in  response  to  this  circular,  sent  to  the 
defendant  two  photographs  of  two  separate  designs,  and 
a  formula  for  making  the  substance  out  of  which  the  de- 
signs were  to  be  constructed. 

He  fastened  to  each  of  the  photographs  a  notice,  or 
rather,  two  notices  signed  by  himself.  The  substance  of 
each  was  that  these  designs  wei*e  valuable,  and  that  the 
defendant  should  take  great  care  to  return  them  to  him, 
as  the  negatives  of  the  photographs  had  been  destroyed, 
and  it  would  be  difficult  to  replace  them.  He  also  wrote 
on  the  back  of  one  photograph  that  the  ^^value  of  this 
original  design  is  two  thousand  dollars'' ;  on  the  other 
phot(^aph  the  statement  that  it  was  worth  three  thou- 
sand dollars,  and  on  the  formula  that  it  was  worth  five 
thousand  dollars.  And  he  sent  a  letter  also,  in  which 
he  said  to  the  defendants  that,  if  the  conditions  on  the 
back  of  the  photographs  were  acceptable,  they  should 
go  on  and  use  the  photographs  in  their  exhibit;  that 
otherwise  they  should  return  to  him. 

He  received  a  reply  which  merely  stated  that  the 
photographs  and  letter  had  been  received.  The  photo- 
graphs were  then  used  in  the  exhibition  carried  on  by  the 
defendant.  The  defendant  claims  to  have  lost  the  photo- 
graphs and  WEE  unable  to  return  them. 

When  the  case  was  first  brought  no  mention  was  made 
in  the  pleadings  of  the  prices  alleged  to  be  affixed  to  each 


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366  ALAND,  Appellant,  v.  CLUETT,  PBABODY  &  CO- 

Opinion  of  Oonrt  below.  [359  Pa. 

of  these  photographs  and  the  fonnula,  but  some  five 
years  afterwards  an  amended  statement  of  claim  was 
filed,  in  which  these  inscriptions  on  the  back  of  each  of 
the  photographs  and  the  formula  were  alleged,  and  the 
case  was  put  upon  the  contract  alleged  to  be  made  by 
these  writings  to  pay  these  several  sums  if  the  photo* 
graphs  and  formula  were  not  returned. 

The  plaintiff  expressly  stated  on  the  trial  that  he  was 
not  claiming  on  a  quantam  meruit  or  a  quantum  valebat, 
but  on  a  contract  made  by  the  writing  for  these  sums  of 
money. 

While  the  circular  says  nothing  whatever  about  the 
return  of  the  photographs  and  in  the  absence  of  any 
further  agreement  or  statement  as  to  their  return,  the 
sending  of  the  photographs  in  reply  to  the  circular  would 
not  seem  to  bind  the  defendant  to  return  them,  yet  the 
warning  contained  in  the  letter  referred  to  the  notice  on 
the  back  of  the  photographs  that  they  were  valuable,  and 
that  he  desired  to  have  them  returned,  was  sufficient  to 
indicate  that  the  photographs  and  formula  were  merely 
bailed  to  the  defendant;  that  they  were  to  return  them, 
and  this  would,  in  our  opinion,  be  sufficient  to  make  out 
a  case  against  the  defendants,  for  whatever  the  photo- 
graphs were  reasonably  worth,  if  that  had  been  declared 
for  and  evidence  given  upon  it.  But  we  are  clearly  of 
the  opinion  that  the  mere  writing  of  an  alleged  schedule 
upon  the  back  of  the  photographs  and  the  acceptance 
and  use  of  the  photographs  containing  such  writing,  did 
not  amount  to  a  contract  to  pay  those  sums  in  case  the 
photographs  or  formula  were  not  returned. 

As  the  case  stands  the  plaintiff  is  entitled  to  recover 
either  ten  thousand  dollars  or  nothing.  In  the  absence 
of  any  evidence  that  the  defendant's  attention  was  ever 
called  to  the  alleged  inscriptions  on  the  back  of  the  photo- 
graphs and  formula  stating  their  value,  we  are  unable 
to  see  how  the  writingB  could  be  consbmed  as  an  agree- 
ment to  pay  those  amounts. 


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ALAND,  Appellant,  v.  OLUETT,  PEABODY  &  CO.  367 
1918.]        Assignment  of  Error — Opinion  of  the  Court. 

The  court  entered  a  compulsory  nonsuit  which  it  sub- 
sequently refused  to  take  off.    Plaintiff  appealed. 

Error  assigned  was  in  refusing  to  take  off  the  nonsuit. 

Harry  B.  Bunton,  with  him  ThoB.  Z/.  Ka/ne,  for  appel- 
lant. 

A.  W.  Forsyth  and  George  J.  Kamhach,  for  appellee, 
were  not  heard. 

Per  Curiam,  January  7, 1918 : 

The  judgment  is  affirmed  on  the  opinion  of  the  learned 
president  judge  of  the  court  below  refusing  the  motion 
to  take  off  the  nonsuit. 


Smith  v.  Young,  Appellant 

Statutes — A  mendatory  acts — Construction — Intention. 

1.  A  statute,  amendatory  of  another,  declaring  that  the  former 
shall  read  in  a  particular  way,  must,  in  general,  he  held  to  repeal 
all  provisions  not  retained  in  the  altered  form.  All  matters  not  in- 
corporated into  the  amendment,  the  latter  must  he  held  to  have 
repealed. 

Real  property — Deeds — Recording  of  deeds — Priority — Acts  of 
March  18,  1116,  1  BnUth's  Laws  W,  See.  1;  Mcuy  19,  189S,  P.  L. 
108 — Construction. 

2.  The  Act  of  May  19,  1893,  P.  L.  108,  amending  the  Act  of 
March  18,  1775,  1  Smith's  Laws  422,  carefully  and  deliberately 
changed  the  law  relating  to  the  recording  of  deeds  and  convey- 
ances, and  now  all  deeds  and  conveyances  made  and  executed 
within  this  Commonwealth  are  required  to  be  recorded  within 
ninety  days  after  execution,  and  every  deed  or  conveyance  not 
recorded  within  that  time  is  fraudulent  and  void  as  to  subsequent 
purchasers  or  mortgagees. 

8.  The  owners  of  certain  real  estate  delivered  an  agreeoMnt  for 
the  sale  tliereof  on  December  11,  1916.    The  agreement  wa§  w 


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368  SMITH  V.  YOUNG,  Appellant. 

Syllabus— Opinion  of  the  Court.  [269  Pa. 

corded  on  March  26,  1917,  one  hundred  and  five  days  after  its  de- 
livery. On  February  26, 1917,  the  owner  of  the  said  land  delivered 
a  deed  therefor  to  another  party,  for  a  valuable  consideration,  in 
pursuance  of  an  agreement  made  by  them  on  January  15,  1917. 
Said  deed  was  recorded  on  April  23,  1917,  56  days  after  the  date 
of  its  delivery.  On  a  case  stated,  brought  by  the  grantee  in  said 
deed  to  determine  the  validity  thereof,  the  lower  court  held  that 
the  failure  of  the  first  purchaser  to  place  his  agreement  on  record 
within  ninety  days  after  its  execution,  as  required  by  the  Act  of 
1893,  rendered  his  title  void  as  against  the  plaintiff,  and  entered 
judgment  for  the  plaintiff.  Held,  no  error. 
Davey  v.  Buffell,  162  Pa.  443,  criticised  as  to  dicta  in  the  opinion. 

Argued  Oct.  18,  1917.  Appeal,  No.  181,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Allegheny  Co., 
Oct.  T.,  1917,  No.  1008,  for  plaintiff,  on  case  stated,  in 
case  of  Teany  Smith  v.  J.  George  Young.  Before  Brown, 
C.  J.,  Potter,  Moschziskbr,  Frazbr  and  Walling,  JJ. 
Affirmed. 

Case  stated  to  determine  plaintiff's  interest  in  certain 
real  estate.    Before  Evans,  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  entered  judgment  for  plaintiff  on  the  case 
stated.    Defendant  appealed. 

Error  assigned  was  the  judgment  of  the  court. 

Wm.  M.  Hall,  for  appellant,  cited :  Davey  v.  Buffell, 
162  Pa.  443;  Pries  v.  Null,  154  Pa.  573. 

George  E.  Alter,  of  McKee,  Mitchell  &  Alter,  for  ap- 
I)ellee. 

Opinion  by  Mr.  Justice  Potter,  January  7, 1918 : 
This  was  a  case  stated  to  determine  the  title  to  certain 
real  estate.  On  December  7,  1916,  the  owner  of  the 
property,  McCuUough,  his  wife  joining,  entered  into 
articles  of  agreement  for  the  sale  of  the  property  to  one 
Fogarty,  and  on  December  11,  1916,  Pogarty  executed 


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SMITH  V.  YOUNG,  Appellant.  869 

1918.]  Opinion  of  the  Court. 

and  delivered  an  agi*eement  for  the  sale  of  the  premises 
to  J.  lieorge  Young,  the  defendant.  On  March  26, 1917, 
these  agreements  were  recorded  in  the  recorder's  office 
of  All^heny  County,  where  the  property  in  question  was 
situated.  On  January  15, 1917,  McCullough  and  his  wife 
entered  into  an  agreement  with  Charles  F.  Smith,  acting 
for  his  wife,  the  plaintiflf,  for  the  sale  of  the  same  proper- 
ty, and  on  February  26,  1917,  McCullough  and  wife,  in 
pursuance  of  the  agreement,  executed  a  deed  to  the  plain- 
tiflf. This  deed  was  recorded  on  April  23,  1917,  fifty-six 
days  after  the  date  of  its  delivery,  while  the  defendant, 
Young,  did  not  place  the  evidence  of  his  title  upon  the 
record  until  one  hundred  and  five  days  from  the  date  of 
its  delivery.  The  court  below  held  that  by  his  failure  to 
record  his  agreement  within  ninety  days  of  its  execution, 
as  required  by  the  provisions  of  the  Act  of  May  19, 1893, 
defendant  lost  his  title  as  against  the  plaintiflT,  a  subse- 
quent purchaser. 

By  the  Act  of  March  18, 1775, 1  Sm.  L.  422,  Sec.  1,  it 
was  provided  that  all  deeds  and  conveyances  executed 
within  the  province  of  Pennsylvania  for  lands,  tene- 
ments and  hereditaments  in  the  province  should  ^^  re- 
corded in  the  office  for  recording  of  deeds,  in  the  county 
where  such  lands  or  hereditaments  are  lying  and  being, 
within  six  months  after  the  execution  of  such  deeds  and 
conveyances."  The  section  further  provided  that  every 
deed  and  conveyance  not  so  recorded  should  **be  ad- 
judged fraudulent  and  void  against  any  subsequent  pur- 
chaser or  mortgagee  for  a  valuable  consideration,  un- 
less such  deed  or  conveyance  be  recorded  as  aforesaid 
before  the  proving  and  recording  of  the  deed  or  convey- 
ance under  which  subsequent  purchaser  or  mortgagee 
shall  claim.''  By  the  Act  of  May  19, 1893,  P.  L.  108,  Sec. 
1,  this  section  was  amended  by  changing  the  period  of 
six  months  to  ninety  days,  and  by  making  deeds  and  can- 
veyances  made  and  executed  within  this  Commonwealth 
and  not  recorded  withili  that  time  after  execution  fraud- 
ulent and  void  against  any  subsequent  purchaser  or 
Vol.  cclix— 24 


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870  SMITH  V.  YOUNG,  Appelant. 

Opinion  of  the  Oonit.  [260  Pa. 

mortgagee  for  a  valid  consideration,  or  any  creditor  of 
the  grantor  or  bargainor,  in  said  deed  or  conveyance. 
And  in  the  amending  act,  the  clause  '^unless  such  deed  or 
conveyance  be  recorded  as  aforesaid,  before  the  proving 
and  recording  of  the  deed  or  conveyance  under  which 
subsequent  purchaser  or  mortgagee  shall  claim,''  was 
entirely  omitted. 

In  Fries  v.  Null,  154  Pa.  573,  a  case  which  arose  and 
was  decided  before  the  passage  of  the  Act  of  1893,  an 
owner  of  real  estate  had  executed  and  delivered  a  mort- 
gage, which  was  not  recorded  until  six  months  and  two 
days  after  its  execution.  Four  days  after  the  execution 
of  the  mortgage,  the  mortgagor  executed  and  delivered 
to  a  person  other  than  the  mortgagee  a  deed  for  the  m<H*t- 
gaged  premises.  This  deed  was  put  on  record  within 
six  months  after  its  execution,  but  not  until  the  day  after 
the  mortgage  had  been  recorded.  The  question  therefore 
arose  whether  a  mortgage  recorded  more  than  six  months 
after  its  execution  had  priority  over  a  subsequent  deed 
recorded  within  six  months,  but  not  until  after  the  mort- 
gage was  on  record.  It  was  held  that  the  mortgage  had 
priority.  Mr.  Justice  Mitchell  filed  a  dissenting  opin- 
ion (p.  581),  in  which  Mr.  Justice  Williams  concurred, 
in  which  he  characterized  the  decision  as  "revolutionary 
in  its  effect  on  title  to  land  under  the  recording  acts.'* 
In  his  view  the  intention  of  the  act  was,  that  a  deed  or 
conveyance  recorded  within  six  months  should  have  pri- 
ority over  one  not  recorded  until  after  the  expiration  of 
that  period,  and  that  (p.  582)  "it  is  only  when  by  the 
delay  of  both  parties,  two  deeds  are  both  outside  of  the 
term,  that  it  becomes  a  race  between  them  which  shall 
get  on  record  first.*' 

In  the  present  case,  the  court  below  calls  attention  to 
the  fact  that  the  decision  in  Fries  v.  Null  was  rendered 
May  8,  1893,  and  the  act  amending  the  Act  of  1775  was 
approved  on  May  19,  1893,  eleven  days  later,  and  the 
court  says,  "I  take  it  that  the  omission  by  the  legislature 
[of  the  clause  quoted  above]  was  for  the  reason  that  it 


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SBOTH  V.  YOUNG,  Appellant  371 

1918.]  Opinion  of  the  Oonrt. 

decided  to  change  the  law  as  set  forth  in  the  case  of 
Fries  t.  Null."  No  other  conclusion  can  be  drawn  fr(Hn 
the  Act  of  1893.  It  clearly  operates  as  a  repeal  of  the 
final  clause  of  the  first  section  of  the  Act  of  1775.  In 
Beid  v.  Smoulter,  128  Pa,  324,  Mr.  Justice  Clark  said 
(p.  333) :  "A  statute  amendatory  of  another,  declaring 
that  the  former  shall  read  in  a  particular  way,  must,  in 
general,  be  held  to  repeal  all  provisions  not  retained  in 
the  altered  form.  All  matters  not  incorporated  into  the 
amendment,  the  latter  must  be  held  to  have  repealed." 
To  the  same  effect,  see  Luzerne  Water  Co.  v.  Toby  Creek 
Water  Co.,  148  Pa.  568,  570;  Sener  v.  Ephrata  Boro., 
176  Pa.  80 ;  In  re  Martin,  209  Pa.  266,  268. 

In  construing  the  Act  of  1893,  in  the  case  of  Davey  v. 
Buffell,  162  Pa.  443,  the  opinion  concludes  as  follows 
(p.  451) :  "It  results  from  this  examination  of  the  Act 
of  1893  that  it  is  effective  to  change  the  law  as  it  stood 
before,  in  only  one  particular,  viz :  it  reduces  the  time 
within  which  a  purchaser  must  record  his  deed  from  six 
months  to  ninety  days.  In  all  other  respects  the  law  re- 
mains as  it  was  before."  This  was  clearly  an  inadvertent 
statement.  The  question  of  the  effect  of  the  omission 
from  the  Act  of  1893  of  the  final  and  qualifying  clause 
of  Section  1  of  the  Act  of  1775  was  not  involved  in  Davey 
V.  Buflfell  and  was  not  considered  in  the  opinion  of  this 
court  in  that  case.  The  law  was  carefully  and  deliber- 
ately changed  by  the  Act  of  1893,  and,  as  it  now  stands, 
deeds  and  conveyances  made  and  executed  within  this 
Commonwealth,  are  required  to  be  recorded  within 
ninety  days  after  execution,  and  every  such  deed  or  con- 
veyance not  recorded  within  that  time  is  fraudulent  and 
void  as  to  subsequent  purchasers  or  mortgagees. 

The  agreement  of  sale  under  which  defendant  claims 
title  was  not  recorded  within  ninety  days  after  its  execu- 
tion. Therefore,  by  the  terms  of  the  statute,  it  is  void  as 
against  plaintiflPs  deed,  which  was  executed  subsequent- 
ly and  for  a  valid  consideration,  and  was  recorded  with- 
ip  ninety  days  from  the  date  of  \t^  ejcecutioij.    It  is  e^- 


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372  SMITH  V,  YOUNG,  Appellant. 

Opinion  of  the  Court  [259  PL 

prewly  set  forth  in  the  case  stated  that^  at  the  time  when 
plaintiff  agreed  to  purchase^  she  had  no  actual  knowledge 
of  any  prior  agreement  for  the  sale  of  the  property.  De- 
fendant's agreement  was  not  then  on  record  and  it  was 
not  recorded  until  after  the  expiration  of  the  ninety-day 
limit. 

It  would  seem  to  be  desirable  that  no  extension  of  time 
should  be  allowed  for  the  i*ecording  of  deeds  or  convey- 
ances^ and  that  priority  should  be  given  to  the  instru- 
ment first  placed  upon  the  record.  But  that  is,  of  course, 
a  matter  entirely  for  the  legislature. 

The  judgment  is  affirmed. 


Waltosh,  Appellant,  v.  Penna.  R.  R.  Co. 

Negligence — RuUroad  crossings — "Stop,  look  and  listen" — Pre- 
sumption—contributory  negligence — Burden  of  proof — Nonsuit — 
Evidence — Leading  question. 

1.  While  the  plaintiff  is  bound  to  prove  negligence  on  the  part 
of  defendant  in  an  action  for  personal  injuries  and  that  this  negli- 
gence WAS  the  cause  of  the  injury,  he  is  not  bound  to  go  further 
and  prove  that  he  did  not  contribute  to  the  result  by  his  own  negli- 
gence. That  burden  is  on  defendant  unless  the  evidence  produced 
diflcloses  contributory  negligence. 

2.  The  rule  of  Carroll  v.  Penna.  R.  R.  Co.,  12  W.  N.  C.  848, 
applies  only  where  a  person  enters  upon  a  railroad  track,  and  is 
struck  by  a  moving  train  so  instantaneously  as  to  raise  a  legal  .pre- 
sumption that  he  did  not  stop,  look  and  listen,  and  to  rebut  any 
pr^umption  that  he  had  done  so.  Where  there  is  a  doubt  as  to 
the  negligence  upon  the  part  of  the  plaintiff,  the  case  is  for  the 
jury. 

3.  In  an  action  against  a  railroad  company  to  recover  damages 
for  personal  injuries  sustained  in  a  grade  crossin^^*  collision,  where 
it  appeared  that  at  the  place  where  the  accident  occurred  the  de- 
fendant maintained  six  tracks,  and  that  approaching  the  tracks 
from  the  direction  from  which  the  plaintiff  came  there  were  two 
side  tracks,  an  open  space  twenty-four  feet  in  width,  and  then  four 
main  tracks ;  that  as  plaintiff  approached  the  side  tracks  he  stopped 
and  looked  up  and  down  the  tracks  and  waited  for  a  freight  train 
to  pass;   that  he  then  crossed  the  side  tracks,  and  while  in  the 


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WALTOSH,  Appellant,  v.  PENNA.  E.  E.  CO.        373 
1918,]  Syllabus— Statement  of  Facts, 

space  between  the  side  tracks  and  main  tracks  looked  up  and  down 
and  heard  no  train  coming  but  did  not  stop,  although  there  was 
sufficient  space  for  him  to  do  so;  that  the  rear  of  plaintiff's  sled 
was  struck  just  as  it  was  about, to  cross  the  far  rail  of  the  last 
main  track,  the  question  of  plaintiff's  contributory  negligence,  in- 
cluding the  question  whether  he  should  have  stopped  again  after 
entering  upon  the  side  tracks,  is  for  the  jury. 

4.  The  common  law  rule  is  that  a  question  is  leading  where  it 
embodies  the  material  facts,  and  admits  of  an  answer  by  a  simple 
affirmative  or  negative;  but  in  modem  times  this  rule  has  been 
somewhat  departed  from  by  a  number  of  decisions  which  hold  that 
such  a  categorical  question  is  not  necessarily  leading,  providing  of 
course  that  it  is  not  so  framed  as  to  give  an  intimation  as  to  which 
answer  is  desired. 

5.  Where  in  an  action  for  injuries  sustained  at  a  railroad  grade 
crossing  plaintiff's  counsel  asked  *T)id  you  hear  any  train  coming 
down  ?''  and  plaintiff  answered,  "No."  and  thereupon  plaintiff  was 
asked  "Did  you  listen. for  a  train  coming  down?"  the  contention 
that  the  question  was  leading  was  without  merit,  and  the  court 
erred  in  sustaining*  an  objection  thereto. 

6.  In  such  case  the  question  "Were  you  in  a  position  where  you 
could  have  heard  the  whistle  of  that  train  if  it  had  been  blown," 
put  to  one  of  plaintiff's  witnesses  on  direct-examination,  does  not 
indicate  the  answer  desired  and  therefore  is  not  leading  and  was 
erroneously  excluded  by  the  trial  judge. 

Argued  Sept.  25, 1917.  Appeal,  No.  149,  Oct  T.,  1917, 
by  plaintiff,  from  order  of  C.  P.  Cambria  Co.,  Sept.  T., 
1913,  No.  248,  refusing  to  take  off  a  nonsuit,  in  case  of 
William  Waltosh  v.  Pennsylvania  Railroad  Company,  a 
corporation.  Before  Brown,  C.  J.,  Mbstebzat,  Potter, 
Stewart,  Moschzisker,  Frazbr  and  Walling,  JJ.  Re- 
versed. 

Trespass  to  recover  damages  for  personal  injuries.  Be- 
fore  Stephens, -P.  J. 

The  tracks  referred  to  by  number  in  the  opinion  of  the 
Supreme  Court  are  the  main  tracks.  Track  No.  4  is  the 
last  main  track  in  the  direction  in  which  plaintiff  was 
proceeding.  Further  facts  appear  by  the  opinion  of  the 
Supreme  Court. 

The  trial  jndge  entered  a  compulsory  nonsuit,  which 


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374       WALTOSH,  Appellant,  v.  PENNA.  R.  R.  CO. 

Assignment  of  Errors — Opinion  of  the  Court.  [259  Pa. 

the  court  in  banc  subsequently  refused  to  take  off.   Plain- 
tiff appealed. 

Errors  assigned  were  rulings  on  evidence  and  the  re- 
fusal of  the  court  to  take  off  the  nonsuit. 

Walter  E.  Glass,  specially  admitted  pro  hac  vice,  for 
appellant. 

F.  J.  Hartmann,  for  appellee. 

Opinion  by  Mb.  Justice  Pottbb,  January  7, 1918 : 

Counsel  for  appellant  complains  of  the  refusal  of 
the  court  below  to  take  off  a  judgment  of  compulsory 
nonsuit,  which  was  entered  upon  the  ground  that  plain- 
tiff did  not  ^^stop,  look  and  listen"  before  entering  upon 
a  grade  crossing  of  defendant's  railroad,  and  was,  there- 
fore, guilty  of  contributory  negligence. 

It  appears  from  the  evidence  that,  at  the  place  where 
the  accident  occurred,  the  defendant  company  maintains 
six  tracks.  Approaching  the  railroad  from  the  south,  at 
that  point,  as  did  plaintiff,  one  would  find  two  side 
tracks,  then  an  open  space  some  twenty-four  feet  in 
width,  and  then  four  main  tracks. 

Plaintiff  testified  on  his  own  behalf  that,  on  the  night 
of  the  accident,  as  he  came  down  the  street  to  the  rail- 
road, and  approached  the  side  tracks,  he  stopped  on  the 
south  side,  and  looked  up  and  down  the  track.  He 
waited  until  a  freight  train  had  passed  and  then  crossed 
the  side  tracks.  Between  the  side  tracks  and  the  main 
tracks  there  was  sufficient  space  for  a  wagon  to  stand. 
Plaintiff  said  that  when  he  passed  over  the  side  tracks, 
he  looked  up  and  down  the  tracks,  and  heard  no  train 
coining  down.  When  asked  by  his  counsel  if  he  listened 
for  a  train  coming  down,  the  question  was  excluded,  as 
being  leading.  Plaintiff  testified  further  that,  while  he 
was  passing  over  the  crossing,  he  listened  and  looked  up. 
The  weather  was  thick,  snowing  and  sleeting  and  driving 


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WALTOSH,  Appellant,  v.  PENNA.  R.  R.  CO.       375 
1918.]  Opinion  of  the  Court, 

in  his  eyes.  While  plaintiff  was  on  the  crossing,  he  heard 
no  train  coming^  nor  did  he  see  one.  When  his  horse 
was  on  track  No.  4,  a  man,  who  was  crossing  before  him, 
called  to  him  that  a  train  was  approaching.  The  sled 
was  still  on  track  No.  3.  He  struck  the  horse  and  it 
jumped  across,  but  the  train  caught  the  sled  in  the  rear 
and  dashed  it  against  the  telephone  pole,  and  threw 
him  against  the  pole  hard  enough  to  inflict  severe  in- 
juries. He  did  not  see  the  train  until  he  was  caught 
by  it  No  bell  was  rung  as  the  train  approached  the 
crossing,  nor  signal  given  by  whistle.  No  witness,  except 
plaintiff  himself,  testified  as  to  whether  he  stopped, 
looked  and  listened.  He  spoke  English  imperfectly,  and 
the  testimony  above  cited  was  given  through  an  inter- 
preter. 

In  the  opinion  refusing  to  take  off  the  nonsuit,  the 
court  below  said :  '^The  plaintiff  in  the  present  case  had 
within  his  own  knowledge  all  the  facts  and  circum- 
stances upon  which  he  relied,  am(mg  which  was  that 
of  whether  or  not  he  stopped,  looked  and  listened  at  the 
proper  time  and  place.  We  hold  that  the  burden  of  es- 
tablishing these  facts  was  upon  the  plaintiff,  and  having 
failed  to  disclose  the  fact  that  he  listened  for  approach- 
ing trains  immediately  before  entering  upon  the  grade 
crossing  over  the  main  line  track  the  conclusion  is  that 
he  did  not  perform  the  duty  upon  him,  that  is  to  stop, 
look  and  listen,  and  therefore  he  could  not,  under  the 
law,  recover  from  the  defendant  company  for  the  injuries 
sustained,  r^ardless  of  the  negligence  of  said  company, 
and  it  was  the  duty  of  the  court  to  so  inform  the  jury  or 
to  sustain  a  motion  for  a  compulsory  nonsuit"  This 
view  of  the  law  placed  upcm  the  plaintiff  the  burden  of 
showing  as  part  of  his  case,  that  he  was  not  guilty  of 
contributory  negligence.  The  law  does  not  go  that  far. 
In  Ely  V.  Pittsburgh,  Cincinnati,  Chicago  &  St.  Louis 
By.,  158  Pa.  233,  a  grade  crossing  cas^  where  the  defense 
was  that  plaintiff  had  failed  to  observe  the  rule  requiring 
him  to  stop,  look  and  listen,  it  was  said  (p.  238) :  ^'In 


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876       WALTOSH,  Appellant,  t'.  PENNA.  R.  R.  CO. 

Opiniou  of  the  Court.  [369  Pa. 

cases  like  the  present,  the  plaintiff  is  not  required  to  dis- 
prove contributory  n^ligence,  but  only  to  make  out  a 
case  clear  of  it.  Unless,  therefore,  his  negligence  appears 
affirmatively,  he  is  entitled  to  go  to  the  jury  on  the  gen- 
eral presumption  against  it." 

In  Coolbroth  v.  Penna.  R.  R.  Co.,  209  Pa.  433,  Mr. 
Justice  Dban  said  (p.  439) :  '^She  [plaintiff]  is  bound  to 
prove  negligence  on  the  part  of  defendant  and  that  this 
negligence  caused  her  injury;  she  is  not  bound  to  go 
further  and  pi*ove  that  she  did  not  contribute  to  the  re- 
sult by  her  own  negligence.  That  burden  is  on  defend- 
ant, unless  the  evidence  adduced  by  her  discloses  con- 
tributory negligence." 

In  the  present  case,  it  will  be  noted  plaintiff  tes- 
tified that,  before  going  upon  the  tracks,  he  stopped  and 
looked,  but  did  not  expressly  say  that  he  listened.  The 
act  of  stopping  and  looking  up  and  down  the  tracks  to 
see  whether  a  train  was  approaching,  would  naturally 
involve  listening  for  the  train.  As  was  said  by  Mr.  Jus- 
tice Stbbbbtt  in  Penna.  R.  R.  Co.  v.  Werner,  89  Pa.  59, 
66,  '^To  conclude  that  he  did  not  listen  while  standing 
there,  would  require  a  strained  and  unnatural  inference. 
The  presumption  would  rather  be  that  he  did  listen  as 
well  as  lo(*."  While  the  testimony  of  plaintiff  did  not 
show  affirmatively  that  he  listened,  yet  it  did  not  show 
that  he  had  not  listened.  As  the  case  stood  at  the  close 
of  the  testimony,  it  was  for  the  jury. 

It  may  very  well  be  that,  in  the  exercise  of  reasonable 
prudence,  plaintiff  should  have  stopped,  looked  and 
listened  again,  pfter  crossing  the  side  tracks  and  before 
going  upon  the  main  tracks.  He  said  there  was 
sufficient  space  between  the  tracks  for  him  to  do  so. 
He  testified  that,  before  going  on  the  main  tracks, 
he  again  looked  up  and  down  the  tracks,  but  did  not  say 
he  stopped  while  doing  so.  He  also  said  that  he 
listened  and  looked  up  ^Vhile  passing  over  the  crosping,^ 
without  stating  at  what  point.  Whether  or  not  plaintiff 
should  have  stopped  again  after  entering  upon  the 


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WALTOSH,  Appellant,  i*.  PENNA.  R.  R.  CO.       377 
1918.]  Opinion  of  the  Court, 

tracks,  was,  under  all  the  circumstances,  a  question  for 
the  jury:  Moore  v.  P^na.  R.  R.  Co.,  242  Pa.  541;  Wit- 
mer  v.  Bessemer  &  Lake  Erie  R.  R.  Co.,  241  Pa.  112. 

Counsel  for  appellee  cites  and  relies  on  the  well-known 
case  of  Carroll  v.  Penna.  R.  R.  Co.,  12  W.  N.  C.  348,  but 
the  facts  of  the  present  case  do  not  bring  it  within  the 
doctrine  there  laid  down,  for  the  reason  that  plaintiff's 
horse  had  safely  passed  over  the  track  when  the  accident 
occurred,  and  his  sled  was  struck  at  the  rear  end.  In . 
Howard  v.  B.  &  O.  R.  R.  Co.,  219  Pa.  358,  360,  we  state 
that,  "We  have  said  many  times  that  the  rule  set  forth 
in  Carroll  v.  Penna.  R.  R.  Co.,  12  W.  N.  C.  348,  is  in  its 
nature  only  applicable  to  clear  cases.  It  applies  only 
where  a  person  enters  upon  a  railroad  track,  and  is 
struck  by  a  moving  train  so  instantaneously  as  to  raise 
a  legal  presumption  that  he  did  not  stop,  look  and  listen, 
and  to  rebut  any  presumption  that  ^e  had  done  so. 
Where  there  is  doubt  as  to  negligence  upon  the  part  of 
the  plaintiff,  the  case  is  for  the  jury.  In  the  present  case, 
it  appears  from. the  evidence  that  the  horses  of  the  plain- 
tiff, instead  of  being  struck  immediately  upon  going  upon 
the  track,  were  not  struck  at  all,  but  his  wagon  was 
struck  at  the  rear  end,  just  as  it  was  leaving  the  track." 
The  rule  in  the  Carroll  case  was,  therefore,  held  not  to 
be  applicable,  and  it  is  manifest  that,  for  the  same  rea- 
son, it  does  not  apply  to  the  case  at  bar. 

In  the  seventh  assignment  of  error  it  is  alleged  that 
the  court  below  erred  in  sustaining  an  objection  to  a 
question  put  to  plaintiff  by  his  counsel.  He  had  testified 
that,  when  he  came  to  the  main  tracks,  he  looked  both  up 
and  down  the  track  to  see  whether  he  could  cross.  Then 
his  counsel  asked:  "Did  you  hear  any  train  coming 
down?"  He  answered,  "No,"  Counsel  then  asked: 
"Did  you  listen  for  a  train  coming  down?"  This  ques- 
tion was  objected  to  as  leading  and  was  excluded.  A 
leading  question  is  one  which  suggests  to  the  witness  the 
answer  desired.  There  is  nothing  in  the  form  of  this 
question  to  indicate  the  desire  of  the  examiner.    That  it 


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378       WALTOSH,  Appellant,  v.  PENNA.  R.  R.  CO. 

Opinioa  of  the  Court  [269  Pa. 

is  cat^;oricaly  and  may  be  answered  either  ^^Yes"  or 
^^No/'  does  not  necessarily  make  it  leading.  In  40  Cyc. 
L.  &  Pr.  2423,  it  is  said :  ^^The  common-law  rule  is  that  a 
question  is  leading  where  it  embodies  a  material  fact  and 
admits  of  an  answer  by  a  simple  affirmative  or  negative; 
but  in  modern  times  this  rule  has  been  somewhat  de- 
parted from  by  a  number  of  decisions  which  hold  that 
such  a  categorical  question  is  not  necessarily  leading, 
provided  of  course  that  it  is  not  so  framed  as  to  give  an 
indication  as  to  which  answer  is  desired." 

Complaint  is  also  made  of  the  exclusion  of  a  question 
pul  to  plaintiff's  witness  McHally,  as  follows:  "Were 
you  in  a  position  where  you  could  have  heard  the  whistle 
of  that  train  if  it  had  blown?"  This  question  does  not 
indicate  the  answer  desired,  and,  therefore,  was  not  lead- 
ing. The  inquiry  was  proper  and  should  have  been  per- 
mitted. 

The  second,  fourth,  fifth,  seventh  and  eleventh  assign- 
ments of  error  are  sustained,  and  the  judgment  is  re- 
versed with  a  procedendo. 


Pennsylvania  Engineering  Works  et  al.  v.  New 

Castle  Stamping  Company. 

I 

Corpitrationd— Receivers — Payments  —  Losses  —  Issue  of  littau- 
thorized  certificates — Surcharge — Payments  directed  hy  order  of 
court — Subsequent  order — Priority, 

1.  Whene  a  business  is  being  conducted  at  a  loss  a  receiver  can- 
not take  advantage  of  his  position  and  pay  himself  in  full  at  the 
expense  of  other  creditors,  as  his  equity  is  not  superior  to  theirs. 

2.  A  receiver  may  properly  be  surcharged  for  the  amount  paid  by 
him  on  unauthorized  certificates  and  for  the  amount  expended  by 
him  in  repayment  of  money  borrowed  without  authority. 

8.  Where  the  proceeds  of  unauthorized  certificates  and  notes  went 
into  the  business,  a  receiver  surcharged  therefor  has  an  equitaUe 
claim  equal  to  that  of  other  creditors,  but  is  not  entitled  to  priority. 

4.  An  order  of  court  directing  a  receiver  to  continue  the  busi- 
ness, implies  the  authority  to  purchase  supplies  necessary  for  that 
purpose. 


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PENNA.  E.  WORKS  v.  NEW  CASTLE  STAMPING  CO.  379 
1918.]  Syllabue— Statement  of  Facts. 

5.  A  reoeiver  is  not  personally  liable  merely  because  the  business 
may  have  been  conducted  temporarily  at  a  loss,  especially  where  he 
acted  in  good  faith  and  the  loss  did  not  result  from  his  miscon- 
duct or  negligence. 

6.  While  a  receiver  will  be  held  to  a  rigid  accountability,  nothing 
more  is  required  of  him  than  that  he  act  in  good  faith  and  exercise 
the  discretion  and  prudence  of  ordinarily  careful  men  in  pursuits  of 
flimilar  character. 

7.  Where  an  order  of  court  expressly  charges  the  funds  in  the 
receiver's  hands  with  the  payment  of  authorized  certificates,  the 
payment  thereof  should  be  made  to  the  holders  prior  to  the  receiv- 
er's commission  fixed  by  a  subsequent  order  of  court 

8.  IJi>on  exceptions  to  the  report  of  an  auditor  to  pass  upon  the 
account  of  a  receiver,  it  appeared  that  the  receiver  had  continued 
the  business  under  an  order  of  court,  that  in  some  months  there 
were  losses  and  in  others  profits,  but  that  there  was  a  total  loss  in 
the  conduct  of  the  business  during  the  receivership,  the  auditor 
found  that  some  of  the  expense  incurred  in  closing  out  the  busi- 
ness might  have  been  eliminated  by  winding  up  the  business  at  an 
earlier  date,  but  there  was  no  finding  as  to  the  amount  of  loss  there- 
in sustained,  and  no  sufBicient  evidence  upon  which  such  a  finding 
could  have  been  based.  There  was  no  sufficient  evidence  to  indi- 
cate want  of  proi>er  care  and  attention  to  the  business  on  the  part 
of  the  receiver.  Held,  the  receiver  was  improperly  surcharged  for 
Ae  amount  of  the  loss  under  the  receivership. 

9.  In  such  case  where  the  fund  for  distribution  was  not  sufficient 
to  pay  in  full  all  the  preferred  claims,  an  order  was  made  directing 
payment  in  full  of  local  taxes,  expenses  of  the  audit,  costs  of  ap- 
peal, counsel  fees,  payment  of  certificates  authorized  by  the  court, 
and  after  the  payment  of  such  special  claims  directing  the  balance 
to  be  distributed  to  the  receiver  to  apply  upon  his  claim  for  com- 
pentetion  and  for  the  amount  paid  a  watchman  whose  appointment 
had  been  authorizecl  by  the  court. 

Argued  Oct.  2, 1917.  Appeal,  Na  7,  Oct  T.,  1917,  by 
George  W.  Johnscm,  Receiver,  from  decree  of  C.  P.  Law- 
rence Co.,  March  T.,  1908,  No.  1,  in  equity,  dismiBsing 
exceptions  to  auditor's  report,  in  case  of  Pennsylyania 
Engineering  Works  and  R.  C.  Patterson  t.  New  Castle 
Stamping  Company.  Before  Brown,  C.  J,,  Mbsstbhzat, 
StiWABT,  Frazhb  and  Walunq,  JJ.    Beyersed. 

Bill  in  equity  for  the  appointment  of  a  receiver. 

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380  PENNA.  E.  WORKS  v.  NEW  CASTLE  STAMPING  CO. 
Statement  of  Facts.  [25^  Pa- 

Exceptions  to  report  of  Charles  B.  Davis^  Esq.^  Audi- 
tor.    Before  Embey,  P.  J. 

From  the  record  it  appeared  that  the  New  Castle 
Stamping  Company  was  a  Pennsylvania  corporation 
chartered  in  1901,  and  engaged  in  the  manufacture  of 
enamel  ware  in  New  Castle,  Pennsylvania.  It  became 
so  financially  embarrassed  that  on  December  7, 1907,  on 
the  petition  of  certain  stockholders  and  creditors,  George 
W.  Johnson  was  appointed  receiver.  Its  indebtedness 
was  about  four  hundred  thousand  dollars,  which  in- 
cluded one  hundred  and  fifty  thousand  dollars  of  first 
mortgage  bonds  issued  in  1905.  During  the  six  years  of 
its  operation,  prior  to  the  appointment  of  the  receiver, 
the  corporation  had  lost  on  an  average  about  sixty  thou- 
sand dollars  a  year.  The  order  appointing  the  receiver 
directed  the  completion  of  unfinished  work.  At  that 
time  the  assets,  aside  from  the  real  estate,  were  inven- 
toried at  142,531.02.  The  plant  employed  about  two 
hundred  men  and  it  was  desired  by  the  parties  in  inter- 
est that  it  be  kept  a  going  concern.  On  December  20, 
1907,  on  the  receiver's  petition,  the  court  below  entered 
a  decree,  "that  it  is  for  the  best  interest  and  advantage 
of  the  creditors  and  stockholders  of  the  New  Castle 
Stamping  Company  that  the  said  company's  plant  be 
operated  by  George  W.  Johnson,  Receiver,  under  the  di- 
rection of  the  court  and  to  enable  him  to  operate  the 
same  that  he  purchase  such  supplies  and  materials  as  are 
necessary,  and  to  that  end  the  court  do  adjudge  and  de- 
cree that  the  said  receiver  be  and  he  hereby  is  authorized, 
empowered  and  directed  to  issue  receiver's  certificates  to 

an  amount  not  exceeding  thirty  thousand  dollars 

Said  certificates  shall  be  a  lien  prior  to  all  other  liens, 
except  to  the  lien  of  the  first  mortgage  now  upon  the 
properties  of  said  New  Castle  Stamping  Company,  which 
lien  shall  not  be  prejudiced  hereby,  upon  all  the  goods, 
properties,  assets,  lands  and  tenements  of  New  Castle 
Stamping  Company  and  shall  bo  paid  first  before  uny 
other  claim  against  the  New  Castle  Stamping  Company, 


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PENNA.  E.  WORKS  v.  NEW  CASTLE  STAMPING  CO.  381 
1918.]  Statement  of  Facts, 

out  of  the  moneys  realized  from  the  sale  of  the  goods^ 
chattels,  land  and  tenements  of  the  said  New  Castle 
Stamping  Company,  which  said  goods  and  chattels, 
lands  and  tenements,  subject  to  the  li«i  of  the  said  first 
mortgage,  are  hereby  placed  and  directed  to  be  held  by 
the  receiver  as  security  for  the  payment  of  the  certificates 
of  indebtedness  issued  in  pursuance  of  this  decree. 

"The  court  further  adjudge  and  decree  that  it  is  for 
the  best  interest  of  the  said  company  that  the  plant  be 
continued  as  a  going  concern  and  to  that  end  the  receiver 
is  authorized,  empowered  and  directed  to  purchase,  from 
time  to  time,  such  materials  and  supplies  as  are  neces- 
sary for  the  operation  of  said  plant  and  to  complete  the 
manufacture  of  the  goods  now  on  hand  and  to  continue 
the  operation  of  the  plant  until  further  order  of  the 
court,  and  to  place  the  goods  so  manufactured  on  the 
market,  keeping  an  account  of  all  moneys  by  him  re- 
ceived and  keeping  the  same  deposited  to  his  account  as 
receiver,  using  the  same  from  time  to  time  only  under 
the  authority  of  the  court. 

'*It  is  further  ordered  that  the  said  receiver  on  or  be- 
fore the  second  Monday  of  each  month  during  the  re- 
ceivership, and  until  further  order  of  the  court,  shall  file 
in  this  case  a  written  statement  under  oath  showing  the 
amount  of  purchases  made  by  him,  the  amount  of  moneys 
expended  by  him,  the  amount  of  goods  sold  and  the 
amount  of  moneys  by  him  so  received." 

The  receiver  issued  certificates  for  the  thirty  thousand 
dollars,  and  also  issued  additional  certificates  amount- 
ing to  five  thousand  nine  hundred  dollars  without  au- 
thority; the  proceeds  of  all  of  which  were  used  in  the 
business.  He  expended  over  nine  thousand  dollars  in 
necessary  repairs  and  improvements,  paid  bills,  current 
when  he  took  the  plant,  and  continued  its  operation. 
The  receiver  kept  full  and  accurate  accounts  but  not  so 
as  to  show  at  a  glance  the  status  of  the  business,  there 
being  no  separate  record  of  trial  balances  or  of  profit  and 
loss.    He  failed  to  file  the  monthly  statements  as  re- 


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382  PENNA.  B.  WORKS  v.  NEW  0 ASTLE  STAMPING  CO. 
Statement  of  Facts.  [359  Pa. 

quired  by  the  order  of  court,  being  advised  by  his  counsel 
that  only  an  annual  statement  was  necessary.  In  Feb- 
ruary, 1909,  he  filed  a  statement  of  the  business  up  to 
December  31, 1908.  For  that  period  the  books  showed  a 
gain  of  18,496.18,  and  for  the  year  1909  a  loss  of  fV 
012.65.  The  year  1910  proved  disastrous  to  the  enter- 
prise. As  early  as  February  of  that  year  the  receipts  of 
the  plant  were  not  sufficient  to  defray  its  expenses  and 
the  receiver  began  borrowing  money  on  his  own  notes  to 
enable  him  to  keep  the  plant  going.  This  he  continued 
from  month  to  month  until  he  had  so  borrowed  and  ex- 
pended 116,000.00;  and  the  accounts  of  the  receiver 
showed  a  loss  for  each  month  of  that  year,  except  Febru- 
ary and  March.  The  entire  business  of  the  receiver  to 
May  31,  1910,  showed  a  net  gain  of  |1,588.27;  but  the 
succeeding  months  proved  more  unfavorable  until  the 
plant  was  practically  closed  on  October  15,  1910. 
Gteorge  L.  Patterson  of  New  Castle  was  a  large  stock- 
holder of  the  corporation  and  president  thereof  during 
its  entire  existence  and  took  a  great  interest  in  its  af- 
fairs. It  was  at  his  instance  that  Johnson  accepted  the 
receivership;  and  thereafter  they  frequently  conferred 
together  with  reference  thereto.  During  the  summer  of 
1910  the  receiver  was  in  ill  health  and  sought  to  be  re- 
lieved of  the  receivership;  and  on  that  subject  had  re- 
peated interviews  and  some  correspondence  with  Patter- 
son, who  tried  to  find  some  suitable  person  who  would 
relieve  Johnson ;  and  gave  the  latter  assurance  that  he 
would  be  relieved  on  the  return  of  the  judge,  who  was 
temporarily  absent  from  the  district  Patterson  and 
other  stockholders  and  creditors  earnestly  urged  that  in 
the  meantime  the  receiver  should  keep  the  plant  a  going 
concern,  which  was  done  until  October  15th,  but  no  other 
receiver  was  appointed.  Prior  to  closing  the  plant,  and 
largely  during  the  year  1910,  the  receiver  became  in- 
debted to  various  parties  for  material  and  supplies  fur- 
nished the  plant  amounting  in  all  to  |30,440.00,  whidi 
indebtedneiss  has  never  been  paid, 


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PBNNA.  E.  WORKS  v.  NEW  CASTLE  STAMPING  CO.  383 
1918.]  Statement  of  Facts. 

During  the  peceivership  the  plant  did  business  with 
other  concerns  in  which  the  receiver  was  more  or  less 
interested^  but  those  transactions  appear  to  have  been 
fair  and  without  prejudice  to  the  New  Castle  Stamping 
Company.  After  the  plant  closed  it  did  some  work  on 
brass  shells  for  another  company,  but  the  receiver  was 
paid  therefor,  and,  as  it  was  necessary  to  keep  the  plant 
open  in  winding  up  its  other  business,  this  does  not 
seem  to  have  been  prejudicial  to  the  receiver's  trust. 
After  the  plant  was  closed,  the  receiver  made  disposition 
of  the  personal  estate  from  time  to  time  at  private  sale, 
and  collected  the  accounts,  and  later  by  order  of  court 
made  public  sale  of  the  plant  for  a  nominal  sum,  subject 
to  the  mortgage.  In  winding  up  the  business  after  the 
plant  was  closed,  there  was  apparently  a  loss  of  940,- 
041.18;  some  of  which  the  auditor  found  might  have 
been  avoided  had  the  receiver  sought  an  order  of  court 
and  made  prompt  sale  of  the  remaining  assets.  The  evi- 
dence indicated  that  a  considerable  loss  would  be  the 
natural  result  of  closing  the  plant  and  disposing  of  its 
property. 

During  the  summer  and  fall  of  1910,  while  the  plant 
was  losing  money,  and  when  it  was  doubtful  whether  the 
assets  were  sufficient  to  pay  the  expenses  of  the  receiver- 
ship and  the  debts  incurred  by  the  receiver,  he  used  the 
receipts  of  the  business  to  pay  in  full  the  certificates  he 
had  issued  without  authority  and  also  to  repay  the 
amounts  he  had  borrowed  and  put  in  the  business  earlier  • 
in  the  year,  and  left  unpaid  the  claims  of  other  creditors 
as  above  mentioned  and  also  six  thousand  dollars  due  the 
National  Bank  of  Lawrence  County  on  certificates  prop- 
erly issued  by  him.  The  receiver  testified  that  he  did 
not  know  until  January,  1911,  that  the  assets  were  not 
sufficient  to  pay  all  of  the  debts  and  expenses  of  the  re- 
ceivership. In  1913,  the  court  which  appointed  the  re- 
ceiver, after  an  exhaustive  investigation,  not  only  found 
that  he  acted  in  good  faith  but  that  he  was  diligent  in  the 
care  and  preservation  of  the  property,  and  fixed  his  corn- 


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384  PENNA.  E.  WORKS  v.  NEW  CASTLE  STAMPING  CO. 
Statement  of  Facts— Arguments.  [259  Pa. 

pensation  at  fifteen  tl^ousand  dollars,  and  decreed  the 
same  to  be  a  first  lien  upon  the  plant.  The  receiver  filed 
his  final  account  in  1913  showing  receipts  and  disburse- 
ments of  approximately  six  hundred  thousand  dollars 
and  a  balance  due  him  of  |16,420.16.  To  this  account 
numerous  exceptions  were  filed  by  creditors  and  other 
interested  parties.  Charles  R.  Davis,  Esq.,  was  duly  ap- 
pointed auditor  to  pass  on  the  exceptions,  and,  after 
taking  testimony  and  full  consideration,  filed  an  elabor- 
ate report  covering  one  hundred  and  seventy-seven  pages. 
This  appeal  was  taken  by  the  receiver  from  the  decree  of 
the  court  dismissing  exceptions  filed  to  and  confirming 
that  report. 

The  opinion  of  the  Supreme  Court  further  states  the 
facts. 

The  court  dismissed  the  exceptions.  George  W.  John- 
son, Receiver,  appealed. 

Errors  assigned  were  in  dismissing  the  exceptions. 

Robert  K.  Aiken,  with  him  James  A.  Gardner,  for  ap- 
pellant.— The  receiver  was  wrongfully  surcharged  with 
the  amount  of  the  losses  incurred  by  him  in  operating 
the  plant,  there  being  no  evidence  that  the  receiver  acted 
in  bad  faith  or  that  he  failed  to  exercise  the  discretion  or 
prudence  of  ordinarily  careful  men:  McDowelPs  App., 
4  Penny.  384;  Chapman  v.  Atlantic  Trust  Co.,  119  Fed. 
R.  257. 

The  i-eceiver  was  entitled  to  be  reimbursed  for  the 
money  advanced  by  him  in  operating  the  business :  Wal- 
ter V.  W.  Branch  Table  &  Furniture  Co.,  12  Dist.  Rep. 
529;  Cake  v.  Mohun,  164  U.  S.  311;  Mustin^s  Est.,  188 
Pa.  544;  Bentley's  Est.,  196  Pa.  497;  Donnelly's  Est., 
246  Pa.  308;  Re  British  Power,  Traction  &  Light  Co.,  1 
Chan.  Div.  Law.  Rep.  497,  1906;  Burt  et  al.  v.  Bull,  1 
Q.  B.  276,  1895;  Strapp  v.  Bull  et  al.,  2  Chan^  Div.  1, 
1895. 


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PENNA,  E,  WORKS  v.  NEW  CASTLE  STAMPING  CO.  385 
1918.]  Arguments — Opinion  of  the  Court. 

Wylie  McCaslin,  with  him  Leonard  M.  Uber,  James  A. 
Chambers,  W.  D.  Wallace,  Homer  C.  Drake,  Martin  d 
Martin^  E.  M.  Underwood  and  H.  K.  Gregory,  for  appel- 
lees,— The  receiver  was  careless  in  the  management  of 
his  trust  and  was  properly  surcharged:  Qutterson  & 
Gould  T.  Lebanon  Iron  &  Steel  Co.,  151  Fed.  Rep.  72; 
Decker  v.  Berners  Bay  Mining  Co.,  2  Alaska  504 ;  Flem- 
ing V.  Hotel  Co.,  70  N.  J.  Eq.  509 ;  Matter  of  Punnet 
Cycle  Mfg.  Co.,  24  N.  Y.  Misc.  310;  Gillespie  et  al.  v. 
The  Blair  Glass  Co.,  189  Pa.  50;  First  Natl.  Bank  v. 
Bamum  Wire  &  Iron  Works,  27  N.  W.  657;  Continental 
Trust  Co.  of  New  York  v.  Toledo,  Etc.,  R.  R.  Co.,  59  Fed. 
Rep.  514. 

The  receiver  had  no  right  to  prefer  himself  in  the  re- 
payment of  notes  for  money  advanced  by  him :  Johnson 
V.  Gunter,  69  Ky.  534 ;  Union  Trust  Co.  v.  Illinois,  Mid- 
land Ry.  Co.  et  al.,  117  U.  S.  434;  Chicago  Vault  Co.  v. 
McNulta,  153  U.  S.  554;  Peoria  Steam  Marble  Works 
V.  Hickey,  110  la.  276;  Morgan  &  Co.  v.  Texas,  Etc., 
Railway  Co.,  137  U.  S.  171 ;  Farmers  L.  &  T.  Co.  v.  B.  & 
M.  Tel.  Co.,  148  N.  Y.  315;  Lewis  v.  Linden  Steel  Co., 
183  Pa.  248. 

Opinion  by  Mb.  Justice  Walung,  January  7,  1918 : 
The  auditor  surcharged  the  receiver,  inter  alia,  with 
the  amount  paid  by  him  on  the  unauthorized  certificates 
and  also  with  the  amount  expended  by  him  in  repayment 
of  the  money  borrowed  in  1910 ;  those  items  making  a 
surcharge  of  |22,287.16,  including  interest  paid;  and  as 
to  that  amount  allowed  the  receiver  to  pro  rate  with  his 
general  creditors.  As  to  this  we  fully  agree  with  the 
auditor,  for  where  the  business  is  being  conducted  at  a 
loss  a  receiver  cannot  take  advantage  of  his  position  and 
pay  himself  in  full  at  the  expense  of  other  creditors,  as 
his  equity  is  not  superior  to  theirs.  In  such  case  the 
debts  can  only  be  paid  pro  rata,  and,  if  paid  in  full,  the 
receiver  will  be  personally  liable :  4  Cook  on  Corpora- 
tions, Sec.  878 ;  Gutterson  and  Gould  V.  Lebanon  Iron  ft 
Vol.  cclix— 25 


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386  PBNNA.  E.  WORKS  v,  NEW  CASTLE  STAilPING  CO. 
Opinion  of  the  Court  [359  Pa. 

Steel  Co.,  151  Fed.  Eep.  72 ;  Alderson  on  Receivers,  Sec. 
239.  The  receiver  was  personally  liable  on  the  certifi- 
cates and  notes  which  he  had  given  without  authority ; 
and,  as  the  proceeds  thereof  went  into  the  business,  he 
had  an  equitable  claim  equal  to  that  of  other  creditors, 
but  is  not  entitled  to  priority :  Union  Trust  Co.  v.  Illi- 
nois Midland  Ry.  Co.,  117  U.  S.  434;  Nessler  v.  Indus- 
trial Land  Development  Co.,  65  N.  J.  Eq.  491;  Peoria 
Steam  Marble  Works  v.  Hickey,  110  la.  276.  And  see 
Oluck  and  Becker  on  Receivers,  Sec.  96 ;  also  Pangburn 
V.  American  Vault,  Safe  &  Lock  Co.  (No.  1),  205  Pa.  83. 

The  auditor  also  made  the  further  surcharge:  ^^To 
amount  of  loss  in  operating  plant $53,651.50.'^ 

This  amount  is  less  than  the  actual  loss  sustained  after 
February  1, 1910,  in  the  conduct  of  the  business  and  the 
winding  up  thereof,  and  is  fixed  at  that  sum  seemingly 
to  create  a  fund  sufficient  to  meet  the  deficiency  and  en- 
able the  receiver  to  pay  all  the  outstanding  debts  and  ex- 
penses of  the  receivership.  In  effect  it  makes  him  per- 
sonally liable  for  such  debts  and  expenses.  In  our  opin- 
ion the  facts  found  by  the  auditor  do  not  justify  such 
conclusion. 

The  order  to  continue  the  business  implied  the  author- 
ity to  purchase  supplies  necessary  for  that  purpose: 
Alderson  on  Receivers,  Sec.  245.  As  a  general  rule  a 
receiver  is  not  personally  liable  for  debts  ccmtracted  by 
him  in  the  conduct  of  the  business,  except  in  case  of  per- 
sonal misconduct  or  negligence:  3  Cook  on  Corpora- 
tions, Sec.  878;  High  on  Receivers,  Sec.  272;  34  Cyc. 
294 ;  23  Am.  &  Eng.  Enc.  of  Law  (2d  Ed.)  1096. 

True,  he  conducted  the  business  several  months  at  a 
loss,  but  he  had  had  good  months  and  bad  months  previ- 
ously and  it  probably  could  not  be  determined  at  the  end 
of  one  or  two  unfavorable  months  that  the  business 
would  prove  disastrous.  The  owners  of  the  plant  had 
operated  it  for  six  years  at  a  loss  and  were  not  discour- 
aged, and  at  this  time  were  strenuously  urging  the  re- 
ceiver to  keep  it  a  going  concern.    He  was  then  doing 


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PENNA,  E.  WORKS  v.  NEW  CASTLE  STAMPING  CO.  387 
1918.]  Opinion  of  ihe  Court. 

an  average  amount  of  busmess^  even  in  unfavorable 
times ;  and,  while  it  may  have  been  unwise  to  keep  the 
plant  going  so  long,  yet  under  all  the  circumstances  we 
cannot  say  that  the  receiver  thereby  made  himself  per- 
sonally liable  for  all  the*  unpaid  debts  of  the  receiver* 
ship,  most  of  which  were  contracted  in  the  year*1910. 
There  is  no  other  ground  on  which  to  base  such  a  lia- 
bility. 

A  receiver  is  not  personally  liable  merely  because  the 
business  may  have  been  conducted  temporarily  at  a  loss, 
especially  where  he  acted  in  good  faith,  and  the  loss  did 
not  result  from  his  misconduct  or  negligence :  See  Mc- 
Dowell's App.,  4  Penny.  384.  While  the  receiver  will 
be  held  to  a  rigid  accountability,  nothing  more  is  re- 
quired of  him  than  that  he  act  in  good  faith,  and  exer- 
cise the  discretion  and  prudence  of  ordinarily  careful 
men  in  pursuits  of  similar  character :  34  Cyc.  253.  The 
auditor  fails  to  find  how  much  earlier,  or  wh«i,  the  plant 
should  have  been  closed,  and  we  are  unable  to  do  so  from 
the  evidence.  To  say  arbitrarily  that  the  plant  must 
close  because  its  operation  for  one  or  two  months  indi- 
cates a  loss,  might  stop  the  business  before  it  got  fairly 
started,  or  at  any  period  of  depression.  We  agree  with 
the  auditor  that  the  receiver  was  chargeable  with  knowl- 
edge of  the  actual  condition  of  the  business  as  shown  by 
the  books,  and  also  that  he  should  be  surcharged  with  so 
much  of  the  loss  as  might  have  been  prevented  by  proper 
care  and  attention  to  the  business,  but  there  is  no  finding 
as  to  how  much  of  the  loss  if  any  could  have  been  so  pre- 
vented, and  nothing  to  indicate  want  of  proper  care  and 
attention,  except  that  the  business  was  for  a  time  con- 
ducted at  a  loss. 

On  the  question  of  closing  out  the  business,  the  auditor 
finds  that  "some  of  the  expense  thus  incurred  might  have 
been  eliminated  by  winding  up  the  business  at  once  in- 
stead of  continuing  for  so  long  a  period,''  but  makes  no 
finding  as  to  the  amount  of  loss  thereby  sustained,  and 
there  is  no  sufficient  evidence  upon  which  such  finding 


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dSS  PENi^A.  E.  WORKS  v.  NEW  CASTLE  STAMPING  CO. 
Opinion  of  the  Court.  [269  Pa. 

can  be  made;  and  hence  no  basis  for  a  surcharge. 
Neither  is  there  proof  or  finding  that  any  loss  resulted 
from  the  receiver's  failure  to  file  the  monthly  statements 
as  required  by  the  order  of  December  20, 1907.  To  war- 
rant a  surcharge  there  must  be  loss  resulting  from  mis* 
conduct.  He  is  relieved  of  any  charge  of  bad  faith  in 
that  matter  by  the  advice  of  his  counsd.  Taking  as  a 
whole  the  order  of  the  court  made  December  20, 1907,  we 
believe  it  authorized  the  receiver  to  pay  current  ex- 
penses, such  as  pay  rolls,  etc.,  without  requiring  in  each 
instance  a  special  order  of  court.  It  is  of  course  a  hard- 
ship for  those  who  furnished  supplies  to  the  receiver  in 
good  faith  to  lose  their  claims ;  but  it  is  also  a  hardship 
for  the  receiver,  who  in  any  event  will  sustain  a  con- 
siderable financial  loss  in  addition  to  his  time  and  effort, 
to  pay  such  claims  out  of  his  own  pocket  The  auditor's 
fee  was  approved  by  the  court  below  and  we  see  no  rea- 
son to  change  it.  By  striking  out  the  surcharge  for  loss 
in  operating  the  plant  the  fund  for  distribution  will  not 
be  sufficient  to  pay  in  full  all  the  claims  allowed  by  the 
auditor  as  preferred.  His  allowance  of  the  local  taxes 
levied  during  the  receivership  as  such  is  supported  by 
Gehr  v.  Iron  Co.,  174  Pa.  430.  The  expense  of  the  audit, 
costs  of  this  appeal,  and  also  amount  allowed  as  counsel 
fees  should  be  paid  in  full  as  part  of  the  costs.  As  the 
order  of  court  expressly  charges  the  funds  in  the  re- 
ceiver's hands  with  payment  of  the  authorized  certifi- 
cates, the  claim  of  the  National  Bank  of  Lawrence  Coun- 
ty thereon  should  be  paid  in  full  out  of  this  fund ;  and  it 
cannot  be  turned  aside  to  pay  receiver's  commissions 
fixed  by  a  subsequent  order  of  court :  See  Moore  v.  Lin- 
coln Park,  Etc.,  Co.,  196  Pa.  519 ;  and  this  is  especially 
true  because  the  receiver  disbursed  the  funds  in  such 
manner  as  to  render  himself  personally  liable  for  the 
payment  of  the  bank's  claim,  and  cannot  share  in  this 
fund  until  that  is  paid :  See  Gillespie  v.  The  Blair  Glass 
Co.,  189  Pa.  50.  No  objection  seems  to  be  here  made  to 
the  preference  given  the  claims  of  Chas,  H.  Johnson  and 


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PENNA.  E.  WORKS  v,  NEW  CASTLE  STAMPING  CO.  389 
1918.]  Opinion  of  the  Court. 

H.  W.  McAteer  for  balance  of  salaries.  After  payment 
of  the  special  claims  above  mentioned,  the  balance  of  the 
fund  in  our  opinion  should  be.  distributed  to  the  receiver 
to  apply  upon  his  claim  for  compensation  and  amount 
paid  watchman ;  as  the  court's  order  charges  such  claims 
upon  the  property,  any  right  the  receiver  may  have  to 
look  to  the  plant  for  the  balance  thereof  should  not  be 
prejudiced.  We  have  referred  only  to  such  of  the  nu- 
merous questions  presented  by  the  record  as  seem  here 
important  and  deem  it  unnecessary  to  separately  con- 
sider the  assignments  of  error. 

The  decree  of  the  court  below  confirming  the  auditor's 
report,  is  reversed,  the  surcharge  of  the  receiver,  "To 
amount  of  loss  in  operating  plant,  $53,651.50,"  is  set 
aside,  and  the  record  is  remitted  that  redistribution  may 
be  made  in  accordance  with  this  opinion,  without  prej- 
udice to  any  right  the  receiver  may  have  against  the 
plant  for  the  balance  of  his  claim  under  the  order  of 
court  making  it  a  charge  thereon.  The  costs  of  this  ap- 
peal to  be  paid  out  of  the  fund  for  distribution. 


Faulk  et  ux,  v.  Duquesne  Light  Company, 
Appellant. 

Negligence — Master  and  servant — Electric  company  —  Wires  — 
Defective  transformers-^Notice — Death  of  lineman — Presumption 
of  care — Contributory  negligence — Conflicting  facts  —  Case  for 
jury. 

1,  Where  a  lineman  employed  by  an  electric  company  is  killed 
while  working:  around  live  wires  on  a  telegrraph  pole  he  is  presumed 
to  have  used  care. 

2.  Where  the  facts  or  inferences  upon  which  the  question  of  con- 
tributory negligence  depends  are  in  doubt,  that  question,  if  con- 
trolling, must  be  submitted  to  the  jury. 

8.  In  an  action  against  an  electric  company  to  recover  for  the 
death  of  plaintiff's  son,  who  was  employed  by  defendant  as  a  line- 
man, the  question  of  defendant's  negligence  and  the  contributory 
negligence  of  the  decedent  are  for  the  jury  where  it  appears  that 


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SdO   FAULK  et  ux.  r.  DUQUBSNE  LIGHT  CO.,  Appcl. 

Syllabus— Ari^monto.  li$9  Pt« 

defendant's  foreman,  a  vice-principal,  directed  decedent  to  connect 
certain  wires  at  or  near  a  transformer,  which  had  been  out  of  re- 
pair and  in  a  leaky  condition  for  some  time  and  to  such  an  extent 
as  to  electrify  the  metal  case,  of  which  fact  defendant  had  notice; 
that  decedent  climbed  the  pole  pursuant  to  such  direction  and  im- 
mediately came  in  contact  with  the  transformer,  apparently  by  his 
arm  touching  the  lire  case  as  he  put  it  in  the  four-inch  space  be- 
tween the  case  and  the  buck-arm  while  fastening  his  safety  belt 
around  the  pole ;  that  decedent  had  been  employed  ai  a  lineman  for 
from  ten  to  twelve  months  and  was  ranked  in  the  lowest  of  three 
classes  of  workmen  as  to  experience  and  efficiency;  and  although 
he  had  been  instructed  as  to  the  dangers  of  the  business  and  warned 
not  to  touch  a  transformer  case,  he  had  not  been  warned  of  the  de- 
fective condition  of  the  transformer  in  question. 

Argued  Oct.  11,  1917.  Appeal,  No.  93,  Oct.  T,,  1917, 
by  defendant,  from  judgment  of  C.  P.  Allegheny  Co., 
April  T.,  1915,  No.  2074,  on  verdict  for  plaintiff,  in  case 
of  Louis  P.  Faulk  and  Elizabeth  A.  Faulk,  his  wife,  v. 
Duquesne  Light  Company.  Before  Mbstbbzat,  Pottbe, 
Stewart,  Moschziskbe  and  Walung,  J  J.    AfBrmed. 

Trespass  to  recover  damages  for  the  death  of  plain- 
tiffs* son.    Before  Evans,  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

Verdict  for  plaintiffs  for  f6,500,  subsequently  re- 
duced to  f3,500,  and  judgment  thereon.  Defendant  ap- 
pealed. 

Errors  assigned  were  in  refusing  to  direct  a  verdict  for 
defendant,  and  in  refusing  to  enter  judgment  for  defend- 
ant n.  o.  V. 

John  G.  Frazer,  with  him  Reed,  Smith,  Shaw  d  Seal, 
for  appellant. — The  deceased  was  guilty  of  contributory 
negligence  as  a  matter  of  law,  and  the  court  should  have 
so  instructed  the  jury:  McMellen  v.  Union  News  Co., 
144  Pa.  332;  Lehigh  Valley  R.  R.  Co.  v.  Greiner,  113  Pa. 
600;  Weir  v.  Haverford  Electric  Light  Co.,  221  Pa.  611; 
Lonzer  v.  Lehigh  Valley  R.  R.  Co.,  196  Pa.  610 ;  Holland 
V.  Kindregan,  155  Pa.  156;  Walters  v.  American  Bridge 


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FAULK  et  ux.  v.  DUQUESNE  LIGHT  CO.,  Appel.    391 
1918.]  Arguments — Opinion  of  the  Court. 

Co.,  234  Pa.  7 ;  Hamilton  v.  Central  E.  B.  of  New  Jersey, 
227  Pa.  137;  Schley  v.  S.  &  N.  Y.  R.  R.  Co.,  227  Pa.  494; 
Cromley  v.  P-  R.  R.  Co.,  211  Pa.  429;  Lerch  t.  Hershey 
Transit  Co.,  246  Pa.  473;  Keiser  v.  Lehigh  Valley  R.  R. 
Co.,  212  Pa.  409. 

Rody  P.  Marshall,  for  appellee. — The  case  was  for  the 
jury. 

Opinion  by  Mb.  Justice  Walling,  January  7, 1918 : 
This  is  an  action  by  parents  to  recover  damages  for 
the  death  of  an  adult  son.  There  is  a  line  of  poles  in  th^ 
Butler  Pike  in  Allegheny  County,  used  jointly  by  de- 
fendant and  the  Bell  Telephone  Company.  One  of  said 
poles  is  located  opposite  the  residence  of  a  Mr.  DeHaven 
and  has  three  cross-arms;  the  lowest  is  used  by  the 
telephone  company,  the  top  by  defendant  for  its  high 
tension  wires,  and  the  middle,  known  as  the  buck-arm, 
is  used  by  defendant  for  house  wires.  The  transformer 
is  contained  in  a  metal  case  suspended  from  the  upper 
cross-arm  by  iron  hooks  and  comes  down  to  within  about 
four  inches  of  the  buck-arm.  Its  purpose  is  to  reduce 
the  current  from  2,200  to  110  volts.  The  telephone  com- 
pany's messenger  wire  extends  from  the  pole  and  is  at- 
tached to  it  near  the  lowest  cross-arm.  It  is  considered 
a  grounded  wire,  as  is  also  an  uninsulated  guy  wire  fas- 
tened to  the  pole  below  the  transformer.  PlaintiflTs  son, 
Louis  P.  Faulk,  was  in  defendant's  employ  as  a  lineman, 
and,  on  October  5,  1914,  was  directed  by  the  foreman, 
who  was  in  reality  a  vice-principal,  to  permanently  con- 
nect some  wires  at  or  near  the  transformer.  Young 
Faulk  climbed  the  pole  for  that  purpose  and  was  imme- 
diately killed  by  an  electric  shock.  No  one  saw  the  ac- 
cident. Mr.  Ford,  a  fellow  lineman,  was  about  fifty  feet 
away,  and,  attracted  by  the  noise,  turned  and  saw  Faulk 
in  an  upright  position  on  the  pole,  and  called  twice  to 
him  but  received  no  response.  Ford  then  climbed  the 
pole  and  found  the  deceased  with  his  arms  and  safety 


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392   P^AULK  et  ux.  v.  DUQUESNE  LIGHT  CO.,  Appel. 

Opinion  of  the  Court.  [269  Pa. 

belt  resting  on  the  buck-arm,  one  foot  fastened  to  the 
pole  by  a  climber  and  the  other  resting  on  the  messenger 
'  wire.  The  outside  of  Faulk's  arm,  below  the  elbow,  and 
his  feet  were  burned.  The  plaintiff's  evidence  tended  to 
show  that  this  transformer  had  been  out  of  repair  and  in 
a  leaky  condition  for  some  time,  to  such  an  extent  as  to 
electrify  the  metal  case,  of  which  the  defendant  had  no- 
tice. It  is  reasonably  certain  that  Faulk's  death  re- 
sulted from  his  arm  touching  the  transformer  case  when 
his  foot  or  feet  were  in  contact  with  a  grounded  wire  or 
some  other  conductor  of  electricity.  Linemen  are  placed 
in  three  classes  according  to  experience  and  efficiency. 
Faulk,  who  had  from  ten  to  twelve  months'  experience, 
was  in  the  lowest  class. 

Defendant  concedes  that  the  question  of  its  n^ligence 
was  for  the  jury,  but  urges  that  the  trial  court  erred  in 
failing  to  hold  that  the  deceased  was  guilty  of  contribu- 
tory negligence.  Defendant  offered  oral  evidence,  not 
controverted,  to  the  effect  that  Faulk  had  been  instructed 
as  to  the  dangers  of  the  business  and  warned  not  to  touch 
a  transformer  case  or  messenger  wire.  However,  he  had 
not  been  warned  of  the  defective  condition  of  this  trans- 
former. He  was  sent  to  work  in  immediate  proximity  to 
high  tension  wires  and  a  live  metal  case,  with  grounded 
Avires  near  where  he  was  required  to  stand,  which  made 
the  place  one  of  great  danger.  Under  such  circum- 
stances the  happening  of  the  accident  itself  does  not  con- 
vict him  of  negligence.  Careful  and  competent  men  are 
killed  while  working  around  live  wires.  No  one  knows 
just  how  the  accident  happened.  The  deceased  is  pre- 
sumed to  have  used  care.  True,  he  was  found  with  his 
foot  on  the  messenger  wire  and  it  would  seem  that  his 
arm  had  touched  the  transformer  case;  but  it  does  not 
clearly  appear  that  either  act  was  done  intentionally  or 
negligently.  A  slight  slip  or  misstep  might  easily  have 
caused  the  accident.  Both  feet  were  burned  while  only 
one  was  found  on  the  messenger  wire,  and  this  may  have 
been  by  an  involuntary  movement  after  the  shock.     The 


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f^AULK  et  ux.  v.  DUQUESNE  LIGHT  CO.,  Appel.    393 
1918.]  Opinion  of  the  Court. 

transformer  could  be  cut  out  by  pulling  the  fuse  plugs, 
but  defendant's  foreman  testified  that  Faulk's  first  duty 
was  to  fasten  his  safety  belt  around  the  pole ;  and  seem- 
ingly he  was  killed  while  attempting  to  do  so.  As  there 
was  a  space  of  only  four  inches  bet\^een  the  transformer 
case  and  the  buck-arm,  it  is  not  remarkable  that  in  push- 
ing his  belt  around  the  pole  his  arm  in  some  unexplained 
manner  touched  the  live  case.  According  to  the  evidence 
Faulk  was  sent  to  do  work  more  dangerous  than  his  ex- 
perience justified,  and  his  own  negligence  was  not  shown 
so  clearly  that  it  could  be  declared  as  matter  of  law. 
Where  the  facts  or  inferences  upon  which  the  question  of 
contributory  negligence  depends  are  in  doubt,  that  ques- 
tion if  controlling  must  be  submitted  to  the  jury. 

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


Puhlman  et  al.,  Appellants,  v.  Excelsior  Express 
and  Standard  Cab  Company. 

Negligence — Master  and  servant — Cab  company — Hire  of  team 
and  driver — Driver  assisting  in  hirer's  work — Special  and  general 
employment — Negligence  of  driver — Injury  to  hirer's  employee — 
Action  against  cab  company  —  Respondeat  superior  —  "Carriage 
cases"  distinguished, 

1.  There  can  be  no  recovery  against  one  charged  with  negligence 
upon  the  principle  of  respondeat  superior  unless  it  be  made  to  ap- 
pear that  the  relation  of  master  and  servant  in  fact  existed,  and 
that  the  servant  was  within  the  scope  ©f  his  employment. 

2.  Where  one  person  lends  his  servant  to  another  for  a  particular 
employment,  the  servant,  for  anything  done  in  that  particular  em- 
ployment, must  be  dealt  with  as  a  servant  of  the  man  to  whom  ho 
is  lent,  although  he  remains  the  general  servant  of  the  person  who 
lent  him.  The  test  is  whether,  in  the  particular  service  which  he 
is  engaged  to  perform,  he  continues  subject  to  the  direction  and 
control  of  his  master,  or  becomes  subject  to  that  of  the  party  to 
whom  he  is  lent  or  hired. 

3.  In  an  action  against  an  express  company  brought  by  an  em- 
ployee of  an  electric  company  to  recover  for  personal  injuries,  it 
appeared  that  the  electric  company  had  hired  from  the  defendant 


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m:  PUHIiMAN  et  al.,  Appel.,  v.  EXCELSIOE  E,  &  S.  C.  CO. 
Syllabus— Arguments.  [259  Pa. 

the  Beirioes  of  a  bone,  wagon  and  driver  to  assist  in  the  erection 
of  poles  and  wires;  that  the  defendant  sent  each  morning  to  the 
electric  company  a  man  and  wagon  to  remain  in  their  service  dur- 
ing the  day;  that  the  employees  of  the  electric  company  rode  in 
the  wagon,  and  that  the  material  to  be  used  in  putting  up  wires  and 
poles  was  carried  in  it  wherever  occasion  required;  that  the  duties 
of  the  driver  were  to  drive  wherever  he  was  directed  by  the  dectric 
company's  foreman,  to  assist  with  the  team  in  pulling  down  and 
putting  up  poles  pursuant  to  the  direction  of  the  foreman;  that 
the  driver,  in  response  to  plaintiff's  request  to  hand  him  a  chisel, 
threw  it  to  him  in  such  a  manner  as  to  strike  him  on  the  knee, 
causing  the  injuries  complained  of.  Held,  the  driver  was  under 
the  direction  and  control  of  the  foreman  of  the  electric  company 
and,  therefore,  in  the  latter's  8i)ecial  employ  at  the  time,  and  a  com- 
pulsoiy  nonsmt  was  properly  entered. 

4.  Plaintiff  failed  to  show  afltenatively  that  handing  tools  from 
the  wagon  was  a  duty  which  defendant  company  engaged  to  per- 
form, or  that  defendant  employed  the  driver  to  discharge  that  duty. 

5.  The  '^carriage  cases"  are  distinguished  from  this  case  by  the 
fact  that  in  those  cases  the  driver  is  only  under  the  control  of  the 
hirer  to  the  extent  of  indicating  the  destination  to  which  the  latter 
wishes  to  be  driven. 

Argued  Oct.  11,  1917.  Appeal,  No.  94,  Oct.  T.,  1917, 
by  plaintiffs,  from  judgment  of  C.  P.  Allegheny  Co.,  July 
T.,  1914,  No.  2196,  refusing  to  take  off  ccwnpulsory  non- 
suit in  case  of  Edmund  E.  Puhlman,  a  Minor,  by  His 
Next  Friend  and  Father,  Carl  H.  Puhlman,  and  Carl  H. 
Puhlman  in  His  Own  Right,  v.  Excelsior  Express  and 
Standard  Cab  Company.  Before  Mbsteezat,  Potter, 
Stewart,  Mosghzisker  and  Walling,  JJ.    Affirmed. 

Trespass  for  personal  injuries.     Before  Shafer,  P.  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

The  lower  court  entered  a  compulsory  nonsuit  which 

it  subsequently  refused  to  take  off.    Plaintiffs  appealed. 

Error  assigned  was  in  the  refusal  to  take  off  the  non- 
suit. 

Body  P.  Ma/rshall,  of  Rody  P.  d  Meredith  R.  Marshall, 
with  him  Oliver  K.  Eaton,  for  appellants. — The  driver 


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FUHLMAN  et  aJ.,  Appcl.,  v,  EXCELSIOR  E.  &  S.  C.  CO.  39S 

was  an  employee  of  the  defendant  at  the  time  of  the  nog* 
ligent  act:  Caldwell  v.  Brown,  53  Pa.  453;  Lehigh  Val- 
ley Coal  Co.  V.  Jones,  86  Pa.  432;  Lewis  v.  Seifert,  116 
Pa.  628;  Mullan  v.  Philadelphia  &  Southern  Mail  Steam- 
ship Co.,  78  Pa.  25 ;  Bentley,  Shriver  &  Co.  v.  Edwards, 
100  Md.  652 ;  Laugher  v.  Pointer,  English  Common  Law 
Rep.  Vol.  II,  579 ;  Quarman  v.  Burnett,  Meeson  &  Wels- 
by's  Rep.  (Exchequer)  Vol.  6,  499;  Wallace  v.  Keystone 
Automobile  Co.,  239  Pa.  110. 

The  fellow  servant  rule  is  not  applicable  in  the  pres- 
ent case:  Murray  v.  Dwight,  161  N.  Y.  301;  Winona 
Technical  Institute  at  Indianapolis  v.  Stolte,  173  Ind. 
39;  Otis  Steel  Co.  v.  Wingle,  152  Fed.  Rep.  914;  Coates 
V.  Chapman,  195  Pa.  109. 

The  driver  was  within  the  scope  of  his  duty  as  an  ^n- 
ployee  of  the  defendant:  Fuhrmeister  v.  Wilson  et  al., 
163  Pa.  314;  Philadelphia,  Wilmington  &  Baltimore  R. 
R.  Co.  V.  Brannen,  17  W.  N.  C.  227;  Guinney  v.  Hand, 
153  Pa.  404. 

Where  a  question  is  a  mixed  question  of  fact  and  law 
it  is  for  the  jury:  Elmer  v.  Pittsburgh  Railways  Co., 
251  Pa.  505 ;  Ooehrlng  v.  Beaver  Y alley  Traction  Com- 
pany, 222  Pa.  600. 

A.  M.  Thompson,  of  Qraj/,  Thompson  d  Rose,  for  ap- 
pellee.— ^The  burden  is  upon  the  plaintiff  to  show  that 
the  negligent  act  upon  which  the  complaint  is  based  was 
performed  by  one  who  bore  such  relation  to  the  defend- 
ant that  the  defendant  is  responsible  for  his  negligent 
act  under  the  doctrine  of  respondeat  superior :  Rourke 
V.  The  White  Moss  Colliery  Co.,  2  L.  R,  C.  P.  D.  205; 
Donovan  v.  Laing  et  al.  Construction  Co.,  1  Q.  B.  (C. 
A.)  629. 

The  rule  of  the  "carriage  cases"  does  not  apply  to  the 
present  facts :  Byrne  v.  Kansas  City,  Etc.,  Co.,  61  Fed. 
Rep.  605;  Powell  v.  Construction  Co.,  88  Tenn.  692; 
Atwood  V.  Chicago,  R.  I.  &  P.  Ry.  Co.  et  al.,  72  Fed.  Rep. 


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396  PUHLMAN  et  al.,  Appel.,  v.  EXCELSIOR  B.  &  S.  C.  CO. 
Arguments — Opinion  of  the  Court.  [269  P«. 

447 ;  Johnson  v.  Western  New  York  &  Penna.  Ry.  CJo., 
200  Pa.  314. 

The  driver  was  not  acting  within  the  scope  of  his  au- 
thority at  the  time  of  the  injury. 

Opinion  by  Mr.  Justice  Potter,  January  7, 1918: 
Edmund  E.  Puhlman,  an  employee  of  the  Duquesne 
Light  Company,  was  injured  through  the  negligence  of 
one  Joseph  Elkman.  Contending  that  the  latter  was  at 
the  time  of  the  accident  employed  by  the  Excelsior  Ex- 
press and  Standard  Cab  Company,  and  was  acting  with- 
in the  scope  of  his  employment,  the  plaintiff  brought  this 
suit  against  the  cab  company,  to  recover  from  it  dam- 
ages for  the  injury  which  he  sustained.  The  facts  were 
not  in  dispute,  and,  as  stated  by  the  court  below,  were 
as  follows :  "The  Duquesne  Light  Company  hired  from 
the  defendant  the  services  of  a  horse,  wagon  and  driver 
to  assist  in  its  erection  of  poles  and  wires.  The  method 
of  procedure  was  for  the  defendant  to  send  each  morning 
to  the  place  of  business  of  the  Duquesne  Light  Company, 
a  man  and  wagon,  which  was  to  remain  in  their  service 
during  the  day.  The  employees  of  the  Duquesne  Light 
Company  rode  in  the  wagon,  and  the  material  to  be  used 
in  putting  up  wires  and  poles  was  carried  in  the  wagon 
to  wherever  the  Duquesne  Light  Company  had  occasion 
to  work,  and  there  the  driver  of  the  wagon  did  whatever 
he  was  directed  to  do  in  the  use  of  the  horse,  unhitching 
it  from  the  wagon  so  as  to  help  arrange  the  poles,  and 
going  from  place  to  place  with  the  wagon  as  directed  by 
the  foreman  of  the  Duquesne  Light  Company.  The 
plaintiff  having  occasion  to  get  a  chisel,  which  had  been 
brought  out  in  the  wagon,  went  to  the  wagon  on  which 
the  driver  was,  and  asked  for  the  chisel.  The  driver 
thereupon  picked  it  up  and  threw  it  to  the  plaintiff  in 
such  a  manner  that  it  struck  him  on  the  knee  and  caused 
a  severe  injury." 

At  the  trial,  a  compulsory  nonsuit  was  entered,  upon 
the  ground  that  the  evidence  showed  that,  when  the  acci- 


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P0HLMAN  et  al.,  Appel.,  t;.  EXCELSIOR  E.  &  S.  C.  CO.  397 
19180  Opinion  of  the  Court. 

dent  occurred,  Elkman  was,  for  the  time  being,  in  the 
employ  of  the  Duquesne  Light  Company,  and  not  in  that 
of  defendant.    From  the  refusal  to  take  oflf  the  nonsuit, 
plaintiff  has  appealed.     While  Elkman  was  in  the  gen- 
eral service  of  the  express  and  cab  company,  yet,  in  the 
opinion  of  the  trial  judge,  it  clearly  appeared  from  the 
evidence  that  he  was  at  the  time  in  the  particular  serv- 
ice of  the  light  company,  and  was  under  its  direction  and 
control.     The  trial  judge,  therefore,  followed  the  general 
rule  of  law  stated  in  26  Cyc.  L.  &  Pr.  1285,  as  follows : 
*^Where  one  person  lends  his  servant  to  another  for  a 
particular  employment,  the  servant,  for  anything  done 
in  that  particular  employment,  must  be  dealt  with  as  a 
servant  of  the  man  to  whom  he  is  lent,  although  he  re- 
mains the  general  servant  of  the  person  who  lent  him. 
......The  test  is  whether,  in  the  particular  service 

which  he  is  engaged  to  perform,  he  continues  liable  to  the 
direction  and  control  of  his  master,  or  becomes  subject 
to  that  of  the  party  to  whom  he  is  lent  or  hired."  The 
same  rule  is  formulated  in  the  opinion  in  Standard  Oil 
Co.  V.  Anderson,  212  U.  S.  215,  as  follows  (p.  220) : 
^*One  may  be  in  the  general  service  of  another,  and,  never- 
theless,  with  respect  to  particular  work,  may  be  trans- 
ferred, with  his  own  consent  or  acquiescence,  to  the  serv- 
ice of  a  third  person,  so  that  he  becomes  the  servant  of 
that  person  with  all  the  legal  consequences  of  the  new 
relation." 

In  the  present  case,  if  plaintiff  is  to  recover  dam- 
ages, it  is  incumbent  upon  him  to  show,  by  affirmative 
proof,  that  the  person  whose  negligence  caused  the  in- 
jury was  the  servant  of  defendant,  and  that  the  injury 
was  inflicted  while  be  was  acting  within  the  scope  of  his 
employment  as  such  servant  Thus  in  Patton  v.  Mc- 
Donald, 204  Pa.  517,  we  said  (p.  523) :  "There  can  be  no 
recovery  against  one  charged  with  negligence  upon  the 
principle  6f  ri^pondeat  superior,  unless  it  be  made  to 
appear  that  the  relation  of  master  and  servant  in  fact 
existod,  whereby  the  negligent  act  of  the  servant  was 


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398  POHLMAN  et  al.,  Appel,  v.  EXOBLSIOE  E.  &  S.  C.  CO. 
Opinion  of  the  Court  [259  Pa. 

legally  imputable  to  the  master."  And  in  7  Labatt  on 
Master  &  Servant  (1913),  Sec.  2513,  stating  the  princi- 
ple, it  is  said :  ^^The  rule  respondeat  superior  operates 
only  in  respect  of  cases  in  which  it  is  established  by  af- 
firmative testimony  that,  at  the  time  when  the  given  tort 
was  committed,  the  relationship  of  master  and  servant, 
or  of  principle  and  agent,  existed  between  the  party 
whom  it  is  sought  to  affect  with  liability  and  the  actual 
tort-feasor.  Accordingly,  a  plaintiff  whose  claim  is 
founded  upon  the  rule  cannot  succeed  if  the  evidence  is 
insufficient  to  prove  that  the  tort-feasor  was  a  servant  of 

the  defendant,  or   requires   the  inference  that 

though  regularly  in  the  employ  of  the  defendant,  he  was 
temporarily  under  the  control  of  another  person  on  the 
occasion  when  the  injury  complained  of  was  inflicted," 

tn  the  case  at  bar,  plaintiff  depended  for  proof  of  the 
duties  which  Elkman  had  been  employed  to  perform  en- 
tirely on  testimony  as  to  what  he  actually  did,  with  the 
exception  of  defendant's  admission  that  he  was  in  charge 
of  the  horse  and  wagon  when  the  accid^it  occurred.  The 
evidence  showed  that  Elkman  did  three  things:  (1)  he 
drove  the  team  wherever  he  was  directed  to  go  by  the 
foreman  of  the  Duquesne  Light  Company;  (2)  he  as- 
sisted with  the  team  in  pulling  down  and  putting  up 
poles  following  the  directions  of  the  foreman  in  so  doing; 
and  (3)  he  handed  out  the  tools  to  the  workmen,  when 
neither  the  foreman  nor  any  other  of  the  men  was  on  the 
wagon. 

The  operation  in  which  Elkman  was  c(mcemed  was 
conducted  solely  by  the  light  company,  and  he  was  bound 
to  obey  the  orders  of  its  foreman  in  the  work  which  he 
did.  The  defendant  company  gave  up  the  right  to  con- 
trol his  movements  during  the  course  of  the  particular 
work  in  which  he  was  engaged,  and  that  right  of  control 
was  in  the  light  company. 

Counsel  for  appellant  have  cited  a  number  of  decisions 
known  as  the  ^'carriage  cases,"  in  which  v^eles  in  care 
of  a  driver  have  been  loaned  or  let  by  the  owner  to  an- 


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PUHLMAN  et  al.,  Appel.,  v.  EXCELSIOR  E.  &  S.  C^  CO.  399 
1918.]  Opinion  of  the  Court, 

other  person.  Jn  such  cases  the  general  master  is  held 
to  continue  liable  for  his  servant's  negligence  in  driving, 
loading  or  unloading,  though  the  latter  takes  his  orders 
as  to  driving,  or  as  t6  loading  or  unloading,  from  the 
party  to  whom  the  conveyance  has  been  loaned  or  hired. 
An  examination  of  all  the  cases  cited  to  this  effect  shows 
that  they  were  either  instances  where  the  accident  was 
caused  by  negligent  driving,  or  management  of  the  ve- 
hicle driven,  or  in  the  loading  or  delivery  of  merchandise 
which  the  master  had  been  employed  to  carry,  and  in 
none  of  them  had  the  master  parted  with  his  control  over 
his  servant.  Wallace  v.  Automobile  Co.,  239  Pa.  110,  is 
an  example.  Mr.  Justice  Mestrezat  there  said  (p. 
117) :  "The  rule  of  respondeat  superior  applies.  The 
chauffeur  and  the  car  were  furnished  by  the  defendant 
company,  and  he  had  control  of  and  operated  the  car  for 
the  company.  The  n^ligence  of  the  chauflfeur  is  the 
negligence  of  his  employer,  and  for  injuries  resulting 
therefrom  the  latter  is  responsible." 

In  the  case  at  bar  the  accident  did  not  result  from  any 
negligence  in  driving  or  in  the  management  of  the  horse 
and  wagon.  Nor  can  it  be  said  that  it  resulted  from  neg- 
ligence in  unloading  anything  which  defendant  was  em- 
ployed to  deliver.  Elkman  may  at  times  have  handed 
down  tools  from  the  wagon,  but  there  is  no  evidence  that 
the  defendant  company  was  under  contract  to  carry  or 
deliver  any  such  tools.  They  were  incidental  to  the 
work  of  the  employees  of  the  light  company,  and  were 
evidently  placed  upon  the  wagon  by  the  servants  of  that 
company,  and,  if  the  driver  handed  them  out,  it  was 
merely  as  a  convenience  to  the  light  company's  foreman, 
when  the  latter  was  not  himself  there  to  perform  that 
duty. 

In  Donovan  v.  Laing  et  al.,  L.  B.  (1893),  1  Q.  B.  629, 
cited  by  counsel  for  appellee,  the  distinction  between  the 
carriage  cases  and  one  like  the  present  is  pointed  out  by 
the  Master  of  the  Bolls,  Lord  Esher.  A^  he  says,  the 
coachman  is  only  under  the  control  of  the  hirer  to  the  ex- 


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400  PUHLMAN  ct  al.,  Appel.,  v.  EXCELSIOR  E.  &  S.  C.  CO. 
Opinion  of  the  Court.  [259  Pa. 

tent  of  indicating  the  destination  to  which  he  wishes  to 
be  driven ;  and,  in  distinguishing  the  control  of  the  owner 
in  such  a  case  from  that  in  the  instance  before  him,  he 
said :  "In  the  present  case  the  defendants  parted  for  a 
time  with  control  over  the  work  of  the  man  in  charge  of 
the  crane,  and  their  responsibility  for  his  acts  ceased  for 
the  time." 

In  Byrne  v.  Kansas  City,  Etc.,  R.  R.,  61  Fed.  Rep.  605, 
cited  by  the  court  below,  and  referred  to  more  fully  in 
the  argument  for  appellee,  the  carriage  cases  are  distin- 
guished, with  the  final  comment  that  "It  is  manifest, 
therefore,  that  they  have  no  application  whenever  it  ap- 
peal's that  the  master  has  parted  to  another,  for  a  time, 
with  control  over  his  servant,  to  be  used  in  the  work  of 
that  other." 

Counsel  for  appellants  contend  that  the  question 
whether  the  negligent  act  of  Elkman  was  within  the 
scope  of  his  employment  by  the  defendant,  was  for  the 
jury.  But  they  ofiFered  no  evidence  sufficient  to  sustain 
a  finding  by  the  jury  in  their  favor  upon  that  question. 
They  showed  merely  that  defendant  put  Elkman  in 
charge  of  the  horse  and  wagon,  and  then  placed  him 
under  the  control  and  direction  of  the  light  company. 
They  failed  to  show  affirmatively  that  handing  tools  from 
the  wagon  was  a  duty  which  the  defendant  company  en- 
gaged to  perform,  or  that  defendant  employed  Elkman 
to  discharge  that  duty.  The  tools  all  belonged  to  the 
light  company,  and  were  manifestly  under  the  control  of 
its  foreman.  The  case  is  essentially  different  from  one 
in  which  a  master  contracts  to  haul  and  deliver  goods, 
and  sends  his  servant  to  perform  that  work  for  him.  We 
think  the  evidence  clearly  justifies  the  conclusion  that 
Elkman,  while  in  charge  of  the  horse  and  wagon,  and 
while  assisting  the  workmen  of  the  electric  light  com- 
pany, was  under  the  direction  and  control  of  the  fore- 
man of  that  company,  and  that  the  defendant  company 
^id  not  retain  control  over  him  in  the  work  hB  was  doing 
at  that  time. 


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PUHLMAN  et  al,  Appel.,  v.  EXCELSIOR  E.  &  S.  C.  CO.  401 
1918.]  Opinion  of  the  Court. 

The  assignment  of  error  is  overruled,  and  the  judg- 
ment is  afSrmed. 


Barclay's  Estate. 

Jurisdiction,  0.  C, — Decedents'  estates — Domicile  of  decedent — 
Change  of  don^icile — Evidence — Presumption  against  change — Pro- 
hate  of  wUl, 

1.  A  domicile  once  acquired  is  presumed  to  continue  until  it  is 
shown  to  have  been  changed,  and  where  a  change  of  domicile  is  al- 
leged the  burden  of  proving  it  rests  upon  the  person  making  the 
allegation.  To  constitute  the  new  domicile  two  things  are  indis- 
pensable, first,  residence  in  the  new  locality,  and,  second,  the  inten- 
tion to  remain  there.  Mere  absence  from  a  fixed  home,  however 
long  continued,  cannot  work  the  change;  until  the  new  one  is  ac- 
quired the  old  one  remains. 

2.  On  an  appeal  from  the  probate  of  a  will  on  the  ground  that 
deceased  was  not  a  resident  of  the  State  at  the  time  of  her  death, 
it  appeared  that  deceased  died  in  Canton,  Ohio,  on  November  18, 
1915,  leaving  the  testamentary  paper  in  question  dated  December 
13, 1915,  with  the  addenda  in  her  handwriting,  "July  1, 1915,  Pitts- 
burgh, Pa.,  1615  Buena  Vista  St.,  N.  S."  The  will  named  a  resi- 
dent of  Pittsburgh  as  the  executor.  It  further  appeared  that  de- 
ceased was  bom  in  Ohio,  came  to  Pittsburgh  in  1871,  and  lived 
there  with  her  husband  from  that  time  until  his  death  in  1878; 
that  her  husband's  will  was  probated  and  his  estate  administered  in 
Allegheny  County;  that  decedent  went  to  Paris  in  1880  and  lived 
there  until  1904,  when  she  went  to  New  York  City  and  lived  until 
February,  1913;  that  she  then  furnished  two  rooms  in  a  house 
owned  by  her  in  Canton,  Ohio,  and  occupied  by  her  cousin,  and 
boarded  with  him  until  her  death;  that  when  she  purchased  the 
house  in  question  in  Canton  it  was  her  intention  to  have  the  deed 
made  to  her  cousin  but  she  was  advised  by  counsel  that  she  could 
as  well  give  it  to  him  by  her  will;  that  she  was  a  member  of  a 
church  in  Pittsburgh ;  that  her  husband  and  one  child  and  herself 
were  buried  in  a  cemetery  near  Pittsburgh ;  that  in  previous  wills 
prepared  for  her  in  1908  and  1911  the  introductory  clauses  re- 
ferred to  Pittsburgh  as  her  residence;  that  her  bank  account  and 
investments  were  in  Pittsburgh ;  and  that  while  living  in  New  Yoric, 
Paris  and  Canton  she  had  declared  to  a  number  of  witnesses  that 
she  regarded  Pittsburgh  as  her  home  and  her  stay  in  Canton  as  an 
experiment,  and  temporary;   and  that  she  made  frequent  visits  to 

Vol.  coltx — 26 


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402  BARCLAY'S  ESTATE: 

Syllabus — Opinion  of  Court  below.  [269  Pa. 

Pittsburgh  while  living  at  the  other  places  named ;  while  the  only 
facts  offered  to  show  a  change  of  residence  were  the  purchase  of 
the  house  in  Canton  and  her  living  there  in  furnished  rooms  until 
her  death,  that  she  had  registered  on  several  occasions  at  the  Y.  W. 
C.  A.  building  as  residing  in  Canton,  and  her  name  appeared  in 
the  Canton  directory  as  a  resident  Held,  the  court  did  not  err 
in  finding  that  decedent  was  a  resident  of  Pittsburgh  at  the  time  of 
her  death,  and  the  will  was  properly  admitted  to  probate. 

Argued  Oct.  12,  1917.  Appeal,  No.  99,  Oct.  T.,  1917, 
by  T.  E.  Morrisey  and  her  Co-Heirs  at  Law,  from  decree 
of  Allegheny  Co.,  June  T.,  1916,  No.  508,  dismissing  ap- 
peal from  decision  of  Register  admitting  will  to  pro- 
bate in  the  Estate  of  Violet  Irwin  Barclay.  Before 
Mbstrbzat,  Potter,  Stewart,  Moschzisker  and  Wal- 
ling, JJ.    Affirmed. 

Appeal  from  decree  of  register  admitting  will  to  pro- 
bate. 

The  facts  appear  from  the  following  opinion  by  Over, 
P.  J.: 

This  is  an  appeal  from  the  decision  of  the  register  of 
wills  of  this  county  admitting  to  probate  on  December  13, 
1915,  as  the.  last  will  of  Violet  Irwin  Barclay,  deceased, 
a  testamentary  paper  written  and  signed  by  her,  hav- 
ing this  addenda  also  in  her  handwriting:  "July  1, 1915, 
Pittsburgh,  Pa.,  1615  Buena  Vista  St.,  N.  S.,  Pittsburgh, 
Pa."  She  died  at  Canton,  Ohio,  on  the  18th  of  Novem- 
ber, 1915.  The  appellant  alleges  that  Canton  was  her 
domicile,  that  the  register  of  wills  of  this  county  had  no 
jurisdiction  to  admit  the  will  to  probate,  and  under  the 
pleadings  this  question  of  fact  is  submitted  to  this  court 
for  adjudication. 

The  decedent  was  bom  and  raised  near  Dalton,  Wayne 
County,  Ohio,  married  Dr.  George  Barclay,  a  dentist, 
and  lived  with  him  at  Dalton  for  some  years.  They  came 
to  Pittsburgh  in  1871,  where  they  kept  house,  and  the 
doctor  opened  offices  and  practiced  dentistry  until  his 
death  in  1878.    His  will  was  probated  and  his  estate  ad- 


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BARCLAYS  ESTATE.  :403 

1918.]  Opinion  of  Court  below% 

ministered  in  this  county.  Mrs.  Barclay  went  to  Paris 
about  1880  and  lived  there  until  1904^  when  she  went' to 
New  York  City  and  lived  there  until  February,  1913.  She 
then  furnished  two  rooms  in  a  house  owned  by  her  in 
Canton,  Ohio,  occupied  by  her  cousin,  Gteorge  B.  Scott> 
and  boarded  with  him  until  her  death.  Her  intention 
when  she  purchased  this  house  was  to  have  the  deed  made 
to  her  cousin,  but  being  advised  by  her  counsel,  Geoi^e 
C.  Wilson,  Esq.,  of  Pittsburgh,  to  take  the  title  in  her 
own  name  and  that  she  could  give  the  property  to  him  tn 
her  will,  she  was  named  as  grantee  in  the  deed.  In  her 
will  she  made  the  following  disposition  of  this  properly: 
"The  home  in  Canton,  Ohio,  800  Fourteenth  St.,  N.  W.,  I 
leave  to  my  cousin,  George  B.  Scott,  and  his  wife,  Martha 
P.  Scott,  my  cousin.  I  wish  my  cousin,  Mrs.  Lois  E. 
Glover,  of  Akron,  to  go  there  at  any  time  feeling  per- 
fectly at  home.^'  Her  name  api>ears  in  the  directory  of 
the  inhabitants  of  Canton  for  the  years  1913,  1914  and 
1915  as  residing  at  No.  800  Fourteenth  street,  N.  W.  She 
was  a  member  of  a  church  in  Pittsburgh  and  took  a  letter 
to  Paris,  joined  a  church  there;  also  in  New  York  City, 
and  Canton,  being  a  member  of  the  latter  church  when 
she  died.  Her  husband,  one  child  and  herself  were  bur- 
ied in  a  cemetery  at  Beaver,  Pa. 

There  can  be  no  question  that  when  Dr.  Barclay  died 
his  wife's  domicile  was  in  this  county,  and  the  appellants 
offered  no  evidence  as  to  declarations  made  by  her  show- 
ing an  intention  to  change  this  domicile.  The  appellee, 
however,  showed  conclusively,  both  by  her  written  and 
oral  declarations,  that  she  did  not  intend  to  change  it. 
In  1908  when  she  resided  in  New  York  City,  her  counsel, 
Mr.  Wilson,  prepared  a  will  for  her,  the  introductory 
part  being  as  follows :  "I,  Violet  I.  Barclay,  of  Pitts- 
burgh, Pennsylvania."  In  1909  he  prepared  another  for 
her  from  instructions  received  from  her  in  New  York 
City,  having  the  same  introductory  clause,  which  he  sent 
her.  In  1911  he  prepared  another  for  her  in  New  York 
City,  having  the  same  introductory  clause,  she  writing 


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404  BARCLAY'S  ESTATE. 

Opinion  of  Court  below.  [259  Pa. 

his  name  in  it  as  executor.  When  living  in  New  York 
she  had  written  Mr.  Wilson  a  letter  in  which  she  stated 
she  wanted  him  to  act  as  her  executor  and  he  testified : 
"I  had  a  talk  with  Mrs.  Barclay  and  I  said  to  Mrs.  Bar- 
clay, *Mrs.  Barclay,  you  are  in  New  York  now.  I  live 
in  Pittsburgh,  Pennsylvania.  Of  course  I  can't  act  as 
your  executor  if  your  home  is  in  New  I'^ork,'  and  she 
said,  ^Oh,  my  home  is  in  Pittsburgh,'  and  then  in  that 
conversation  and  in  later  conversations  she  oftentimes 
told  me  why  she  said  her  home  was  in  Pittsburgh. 
Among  the  reasons  given  by  Mrs.  Barclay  were  these: 
She  said  to  me  on  many  occasions  that  they  lived  here  in 
Allegheny  County  and  kept  house  here  in  Allegheny 
County  and  really  had  no  home  after  they  left  Allegheny 
County;  that  her  husband  was  in  business  here;  that 
their  burial  lot  was  near  Pittsburgh  in  Beaver.  She  told 
me  that  her  husband  was  buried  there  and  that  her  only 
child  was  buried  there  and  of  course  she  would  be  buried 
there.  She  said,  *A11  the  moneys  and  securities  that  I 
have  are  in  Pittsburgh,  most  of  my  investments  are  local  , 
to  Pittsburgh.'  She  said,  ^My  bank  account  or  bank 
accounts' — she  had  two  accounts — ^my  bank  accounts  are 
in  Pittsburgh,'  and  she  said  to  me  several  times  that  her 
closest  friends  were  in  Pittsburgh."  He  also  testified 
that  she  talked  with  him  about  going  to  Canton,  saying 
^^she  would  go  out  and  try  it  but  it  was  an  experiment." 
She  later  said  her  stay  there  was  very  unsatisfactory. 
A  number  of  other  witnesses  also  testified  to  declarations 
made  by  her  whilst  living  in  New  York  City,  Paris  and 
Canton  "that  Pittsburgh  was  her  home"  and  that  her 
living  in  Canton  was  an  experiment  and  temporary.  She 
came  to  Pittsburgh  frequentlj  whilst  living  in  New 
York,  Paris  and  Canton  and  usually  stopped  at  the  Y. 
W.  C.  A.  building. 

In  discussing  the  question  of  domicile  in  Mitchell  v. 
United  States,  21  Wall.  360,  it  was  said:  "A  domicile 
once  acquired  is  presumed  to  continue  until  it  is  shown 
to  have  been  changed.    Where  a  change  of  domicile  is  al- 


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BARCLAY'S  ESTATE.  405 

1918.]  Opinion  of  Court  below, 

leged  the  burden  of  proving  it  rests  upon  the  person  mak- 
ing the  allegation.  To  constitute  the  new  domicile  two 
things  are  indispensable;  First,  residence  in  the  new 
locality,  and,  second,  the  intention  to  remain  there.  The 
change  cannot  be  made  except  facto  et  animo.  Both  are 
alike  necessary.  Either  without  the  other  is  insuflBicient. 
Mere  absence  from  a  fixed  home,  however  long  continued, 
cannot  work  the  change:  There  must  be  the  animus  to 
change  the  prior  domicile  for  another.  Until  the  new  one 
is  acquired  the  old  one  remains."  In  Price  v.  Price,  156 
Pa.  617,  the  decedent  was  a  native  of  West  Chester, 
Chester  County,  Pennsylvania:  It  was  conceded  that  he 
acquired  a  domicile  of  choice  in  Philadelphia  and  later 
acquired  a  domicile  of  choice  in  New  York  City.  It  was 
alleged  that  he  abandoned  his  New  York  domicile  and 
resumed  his  domicile  of  origin.  It  appeared  that  he 
actually  returned  to  West  Chester  and  resided  there 
until  he  died,  leaving  a  will  good  in  Pennsylvania  and 
not  in  New  York.  The  jury  found  that  the  decedent  did 
not  abandon  his  New  York  domicile  and  did  not  come  to 
West  Chester  with  the  intention  of  making  his  permar 
nent  home  in  Pennsylvania,  and  Mr.  Chief  Justice  Ster- 
BBTT,  in  affirming  the  lower  court,  said  that  the  prior 
domicile  must  be  presumed  to  continue  "until  another 
sole  domicile  has  been  acquired  by  actual  residence  cou- 
pled with  the  intention  of  abandoning  the  domicile  of 
origin.  This  change  must  be  animo  et  facto,  and  the 
burden  of  proof  is  on  the  party  who  asserts  the  change." 
In  Jacobs  on  the  Law  of  Domicile,  Sec.  125,  it  is  said : 
"All  jurists  agree  that  a  change  of  domicile  of  whatever 
grade  is  a  question  of  act  or  fact  and  intention  and  can- 
not be  accomplished  without  the  concurrence  of  both," 
and  sec.  122,  "A  change  of  domicile  is  always  presumed 
against." 

Then,  as  here  the  evidence  shows  conclusively  that 
Mrs.  Barclay's  domicile  was  in  this  county  when  her  hus- 
band died,  under  the  authority  of  these  and  other  cases, 


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i66  feAftCLAY'S  EStAtB. 

Opinion  of  Court  below — Argumeut*.  [369  ]^ 

it  seems  the  burden  of  proof  is  on  the  appellant  to  show 
that  her  domicile  was  changed  to  Canton^  Ohio. 

The  only  facts  tending  to  show  such  a  change  are  that 
she  purchased  a  house  in  Canton^  lived  there  as  a  boarder 
in  rooms  furnished  by  her  from  February,  1913,  until 
her  death,  had  her  household  effects  there,  was  registered 
on  several  occasions  at  the  Y.  W.  C.  A.  building  as  resid- 
ing in  Canton,  and  her  name  appears  in  the  Canton  di- 
rectory as  a  resident. 

Any  inference  as  to  an  Intention  to  change  her  domi- 
cile by  the  purchase  of  the  house  is  rebutted  by  the  testi- 
mony showing  she  did  not  buy  it  as  a  home  for  herself 
but  for  her  relatives.  The  other  facts  only  show  her  resi- 
dence in  Canton  and  are  immaterial,  as  it  appears  from 
the  evidence  adduced  by  the  appellees  that  she  never  had 
any  intention  to  change  her  Pittsburgh  domicile. 

The  trial  judge  finds  as  a  fact  that  Mrs.  Barclay's 
domicile  when  she  died  was  in  the  City  of  Pittsburgh, 
Allegheny  County,  Pennsylvania,  and  the  appeal  is 
therefore  dismissed  at  the  costs  of  appellant  and  the  de- 
cision of  the  register  of  wills  affirmed. 

The  lower  court  dismissed  the  appeal  from  the  decision 
of  the  register.  T.  E,  Morrisey  and  her  coheirs  at  law 
appealed. 

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

J.  A.  Wakefield,  with  him  J.  F.  MoNaul,  for  appel- 
lants.— The  decedent  was  a  resident  of  Canton,  Ohio,  at 
the  time  of  her  death :  Hampton  v.  McConnell,  16  U.  S* 
234;  Chew  v.  Brumagen,  80  U.  S.  497;  Hancock  Na- 
tional Bank  v.  Pamum,  176  U.  S.  640;  Carey's  App.,  75 
Pa.  201;  Price  V.Price,  156  Pa.  617;  Whitney  v.  Inhabit- 
ants, Etc.,  94  Mass.  Ill;  Barton  v.  Irasburgh,  33  VL 
195;  Raymond  v.  Leishman,  243  Pa*  64. 

M.  W.  Ackesofiy  Jr.,  of  Sterrett  <€  Acheaoii,  with  him 


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BARCLAY'S  ESTATE.  407 

1918.]  Arguments — Opinion  of  the  Oourt. 

Wilson  d  Evans,  for  appellees. — ^The  burden  was  on  ap- 
pellants to  show  a  change  of  domicile^  animo  et  facto: 
Price  V.  Price,  156  Pa.  617;  Mitchell  v.  United  States,  21 
Wallace  350. 

Domicile  being  a  matter  of  intention,  decedent's  decla- 
rations are  of  great  evidential  yalue:  Chambers  y. 
Prince,  75  Fed.  Repr.  176;  Eisele  v.  Oddie,  128  Fed. 
Repr.  941;  Chase  v.  Chase,  66  N.  H.  S88;  Harberger's 
Est.,  13  Philadelphia  368. 

Domicile  is  not  to  be  inferred  from  the  fact  of  resi- 
dence: Bell  T.  Kennedy,  Law  Report,  1  H.  L.  Sc.  307; 
Barton  v.  Irasburgh,  33  Vt  159;  Givernaud  v.  Variel, 
97  Atl.  Repr.  49. 

Where  residence  away  from  original  home  is  tempo- 
rary there  is  no  change  of  domicile :  Malone  t.  Lindl^, 
1  Philadelphia  192. 

Pbb  Curiam,  January  7,  1918 : 

The  decree  of  the  Orphans'  Court  is  affirmed  on  the 
opinion  of  the  learned  judge,  filed  January  12, 1917,  dis- 
missing the  api>eal  from  the  decision  of  the  register  of 
wills  admitting  to  probate  the  last  will  and  testament  of 
the  testatrix. 


Oelrich  v.  Kent,  Appellant 

Negligence — AutoriiohUee — Standing  trolley  car — Alighting  jhm- 
8enger  passing  around  front  of  car — Collision  with  automobile  le- 
tween  opposite  hound  tracks — Speed — Failure  to  hlow  horn — Cut- 
ting in  front  of  street  car — Contributory  negligence — Case  for  jury. 

1.  No  one  can  complain  of  want  of  care  in  another  where  care 
is  rendered  necessary  only  by  his  own  wrongful  act. 

2.  In  an  action  against  the  owner  of  an  automobile  to  recover 
for  personal  injuries  the  question  of  defendant's  negligence  and 
the  contributory  negligence  of  the  plaintiff  were  for  the  jury  and  a 
verdict  and  judgment  for  the  plaintiff  will  be  sustained,  where  it 
ai^>eared  that  plaintiff,  after  alighting  from  the  front  of  a  street 
car,  which  had  stopped  at  a  crossing,  passed  around  in  ^nt  of  the 


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408  OELRICH  v.  KENT,  Appellant. 

Syllabus— Opinion  of  Court  below.  [269  Pa. 

car  ahd  had  taken  about  two  steps  beyond  it  when  he  was  strudi^ 
in  the  space  between  the  east  and  west  bound  tracks  by  defendant's 
automobile  heading  in  the  same  direction  as  the  car;  that  the 
automobile  approached  at  a  greater  than  usual  rate  of  speed  at  that 
place  without  sounding  its  horn  and  just  before  striking  plaintiff 
changed  its  course,  running  in  close  to  the  front  end  of  lie  car  in 
an  effort  to  pass  in  front  of  it. 

Argued  Oct.  12,  1917.  Appeal,  No.  124,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Allegheny  County, 
July  T.,  1916,  No.  2029,  on  verdict  for  plaintiff  in  case  of 
Garl  Oelrich  v.  Edward  J.  Kent.  Before  Mbstbbzat, 
PoTTBR,  Stewart,  Mosghzisker  and  Walung,  JJ.  Af- 
firmed. 

Trespass  for  personal  injuries. 

On  the  trial  three  witnesses  testified  that  just  before 
striking  the  plaintiff,  defendant's  automobile  changed  its 
course,  and  swerved  in  toward  the  front  of  the  standing 
car  in  an  effort  to  pass  in  front  of  it. 

Further  facts  appear  in  the  following  opinion  by 
Magfarlanb,  J.,  sur  defendant's  motion  for  judgment 
non  obstante  veredicto : 

Upon  the  motion  for  judgment  n.  o.  v.  the  only  ques- 
tion is  the  contributory  negligence  of  the  plaintiff.  It 
is  true  defendant  testified  that  his  automobile  did  not 
run  at  a  rate  of  more  than  ten  miles  an  hour  and  that  it 
stopped  in  five  feet,  and  there  was  no  opposing  testimony 
fixing  the  higher  rate,  but  there  was  testimony  that  the 
automobile  ran  twenty-five  feet  after  it  struck  the  plain- 
tiff and  that  the  speed  was  greater  than  the  usual  rate  of 
automobiles  at  that  place.  The  defendant's  testimony  is 
not  conclui^ive  for  the  additional  reason  that  he  is  an  in- 
terested witness  and  his  son  and  another  man  who  were 
said  to  have  been  in  the  automobile  were  not  called.  It 
further  appeared  without  contradiction  that  a  horn  was 
not  blown. 

The  plaintiff  walked  across  the  street  in  front  of  the 
standing  street  car  from  which  he  had  alighted  and,  ac- 


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OELRICH  V.  KENT,  Appellant.  409 

1918.]  Opinion  of  Court  below. 

cording  to  the  testimony  of  Mrs.  Bernhardy,  was  struck 
on  the  space  between  the  two  tracks.  She  said  he  had 
passed  the  street  car. 

Q.  About  how  far  did  he  pass  it? 

A.  Well,  he  had  just  started  across  the  street. 

Q.  Where  was  he  in  respect  to  the  front  end  of  the 
street  car? 

A.  He  was  in  the  front  end.    That  is  the  way  he  got  off. 

Q.  How  many  feet  away  from  the  front  end  was  he? 

A.  I  guess  about  two  or  three  feet. 

Q.  How  would  you  fix  the  point  in  relation  to  the 
other  track,  the  westbound  track? 

A.  Well,  I  guess  he  was  about  between  the  middle,  you 
know  that  middle  part  between  the  two  tracks.  He  was 
about  there. 

The  plaintiff  testified : 

Q.  How  far  had  you  proceeded  past  the  front  of  the 
street  car  when  you  first  saw  the  automobile? 

A.  Maybe  one  or  two  steps.  I  can't  just  exactly  tell, 
it  happened  so  quick 

Q.  After  you  had  passed  the  front  end  of  the  car  and 
taken  a  step  or  two  as  you  said,  were  you  or  were  you  not 
looking  in  any  particular  direction? 

A.  Why,  I  looked  up  first  and  when  I  looked  down  I 
was  so  close  to  the  automobile  there  was  no  way  getting 
out  of  the  way  at  all. 

In  another  place  he  said : 

Then  after  I  passed  the  street  car,  maybe  a  couple  of 
steps,  I  observed  the  car  coming  and  I  couldn't  get  out 
of  the  way  and  I  got  struck. 

The  space  between  the  two  tracks,  called  the  "dummy," 
fixes  the  limit  of  the  distance  to  which  the  plaintiff  had 
advanced.  The  width  of  this  space  was  not  given,  but  it 
was  well  known  to  the  jury.  Fifth  avenue  runs  by  the 
court  house  where  the  trial  was  being  held  and  is  the 
most  prominent  street  in  this  city.  The  overhang  of  a 
street  car  occupied  a  portion,  and  two  ordinary  steps 
would  carry  a  man  over  the  entire  space.    The  only  wit- 


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410  OELRICH  V.  KENT,  AppeUant. 

Opinion  of  Court  below— Verdict.  [259  Pa. 

neflses  who  located  the  automobile  with  reference  to  the 
side  of  the  street  car  were  Miss  Meyers  and  Mr.  Kent, 
who  both  said  that  it  ran  on  the  street  car  track.  Had  it 
proceeded  without  deviation,  it  would  be  plain  that  the 
plaintiff  had  stepped  past  the  dummy  onto  the  westbound 
track.  The  testimony  that  the  automobile  turned  to  the 
right,  towards  the  right-hand  of  the  street  so  close  that 
the  witnesses  thought  it  would  hit  the  fender,  with  Mrs. 
Bernhardy's  testimony,  was  sufBcient  to  support  the  find- 
ing of  the  jury  that  the  plaintiff  was  struck  on  the  space 
between  the  two  tracks. 

He  was  not  bound  to  guard  against  the  negligence  of 
the  defendant.  He  had  a  right  to  presume  that  ordinary 
care  would  be  used  to  protect  him  from  injury.  "No  one 
can  complain  of  want  of  care  in  another  where  care  is 
only  rendered  necessary  by  his  own  wrongful  act": 
Wagner  v.  Philadelphia  Rapid  Transit  Co.,  252  Pa.  354. 
The  plaintiff's  negligence  was  not  a  clear  and  unavoid- 
able inference  from  the  undisputed  facts.  In  Kurtz  v. 
Tourison,  241  Pa.  425,  the  plaintiff  was  struck  by  an 
automobile  as  she  stepped  from  in  front  of  a  pair  of 
standing  horses,  and  the  case  was  for  the  jury.  In  Miller 
V.  Tiedemann,  249  Pa.  234,  an  automobile  passed  a  wagon 
proceeding  in  front  of  it  and,  after  clearing  it,  swung  to 
regain  the  track,  running  20  to  25  miles  an  hour,  and  no 
warning  was  given  and  after  striking  the  man  ran  about 
20  feet.  It  was  argued  that  he  was  guilty  of  contributory 
negligence  in  stepping  in  front  of  a  moving  automobile, 
but  the  testimony  that  the  driver  could  not  see  the  man 
he  struck  until  he  was  actually  upon  him  and  the  latter 
could  not  see  the  driver  until  approximately  the  same 
time  carried  the  case  to  the  jury. 

The  oral  argument  and  the  briefs  were  confined  to  the 
motion  for  judgment,  but  we  have  considered  the  reasons 
assigned  upon  the  motion  for  a  new  trial  and  find  them 
without  merit. 

Verdict  for  plaintiff  for  |8,500  and  judgment  thereon. 
Defendant  appealed. 


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OELRICH  V,  KENT,  Appellant.  4H 

1918.]  Assigument  of  Error — Arguments. 

Error  assigned,  among  others^  was  in  refusing  defend- 
ant's motion  for  judgment  non  obstante  veredicto. 

W.  8.  Ddlzell,  of  Dalzell,  Fisher  d  Hawkins,  for  ap- 
pellant.— Binding  instructious  should  have  been  given 
for  the  defendant :  Cunningham  v.  P.  R.  T.  Co.,  240  Pa. 
194;  Crooks  v.  Pittsburgh  Railways  Co.,  216  Pa.  590; 
Wolf  V.  P.  R..  T.  Co.,  252  Pa.  448;  Moss  v.  Philadelphia 
Traction  Co.,  180  Pa.  389. 

Francis  A.  Wolf,  with  him  Francis  B.  Cohan,  for  ap- 
pellee.— Reciprocal  rights  and  duties  are  imposed  upon 
I)ede8trians  and  drivers  of  vehicles  in  a  public  highway. 
Each  must  exercise  reasonable  and  ordinary  care: 
Schmidt  V.  McGill,  120  Pa.  405. 

There  was  no  such  positive  evidence  tending  to  show 
negligence  on  the  part  of  the  plaintiff  as  would  have 
justified  the  trial  court  in  holding  that  as  a  matter  of  law 
plaintiff  was  guilty  of  contributory  negligence :  McGov- 
ern  v.  Union  Traction  Co.,  192  Pa.  344. 

Where  it  is  not  clearly  and  plainly  evidenced  that 
plaintiff  could  have  seen  the  danger,  the  question  of  his 
contributory  negligence  is  for  the  jury :  Miller  v.  Tiede- 
mann,  249  Pa.  234;  Kurtz  v.  Tourison,  241  Pa.  425; 
Lorah  v.  Rinehart,  243  Pa.  231;  Bodge  v.  Philadelphia, 
167  Pa.  492;  Christian  v.  Commercial  Ice  Co.,  3  Pa,  Su- 
perior Ct  320;  Streitfeld  v.  Shoemaker,  185  Pa.  265; 
McGovern  v.  Union  Traction  Co.,  192  Pa.  344. 

The  fact  that  plaintiff  crossed  the  street  in  front  of  a 
standing  street  car  does  not  convict  him  of  contributory 
negligence  as  a  matter  of  law :  Wagner  v.  Philadelphia 
Rapid  Transit  Co.,  252  Pa.  354. 

Plaintiff  was  not  bound  to  anticipate  defendant's  neg- 
ligence :  Lewis  v.  Wood,  247  Pa.  545 ;  Wagner  v.  Phila- 
delphia Rapid  Transit  Co.,  252  Pa.  354. 

The  cases  cited  in  appellant's  argument,  especially  to 
show  contributory  n^ligence  on  the  part  of  the  plain- 
tiff, are  distinguishable  on  the  ground  that  they  dealt 


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412  OELRICH  v.  KENT,  Appellant. 

ArgumeiitsJ — Opinion  of  the  Court.  [259  Pa. 

with  pedestrians  being  hit  by  street  cars  running  at  right 
angles  to  the  paths  pedestrians  were  traversing  and  with 
no  obstacles  in  the  way  to  obstruct  the  pedestrians' 
view. 

Per  Curiam,  January  7,  1918 : 

The  judgment  is  affirmed  on  the  opinion  of  the  learned 
court  below  overruling  the  motions  for  a  new  trial  and 
judgment  for  the  defendant  non  obstante  veredicto. 


Montgomery's  Estate. 

Statute  of  limitations — Bar  of  claim — Tolling  of  statute — Svh- 
sequent  promise  to  pay — Evidence — Insufficiency — Indebtedness  on 
several  obligations — Payment — Application  to  barred  claim  without 
debtor's  consent. 

1.  To  remove  the  bar  of  the  statute  of  limitations,  the  promise 
to  pay  must  refer  distinctly  and  specifically  to  the  original  debt. 

2.  Where  a  person  is  indebted  to  another  on  several  distinct 
obligations,  one  of  which  is  barred  by  the  statute  of  limitations, 
and  thereafter  the  debtor  makes  a  payment,  the  application  of  the 
whole  or  a  part  of  such  payment  to  the  barred  claim,  without  the 
knowledge  or  consent  of  the  debtor,  cannot  operate  to  toll  the 
statute  as  to  such  claim. 

3.  A  claim  against  a  decedent's  estate  was  properly  disallowed 
where  it  was  based  on  an  oral  promise  by  decedent  in  1904,  since 
which  time  a  greatsr  period  than  the  statutory  limitation  of  six  years 
had  elapsed  without  decedent  having  renewed  bis  promise  to  pay,  or 
having  paid  any  interest  thereon,  and,  although  it  was  contended 
that  decedent  had  made  a  payment  on  account  after  the  claim  had 
been  barred,  it  appeared  that  decedent  was  indebted  to  claimant  on 
several  other  obligations,  not  barred  by  the  statute,  and  made  a 
payment  to  claimant,  part  of  which  claimant  applied  to  the  barred 
claim  without  the  knowledge  or  consent  of  deceased. 

Argued  Oct.  12, 1917.  Appeal,  No.  133,  Oct.  T.,  1917, 
by  Robert  Thompson,  from  decree  of  O.  C.  Allegheny  Co., 
Feb.  T.,  1917,  No.  100,  dismissing  exceptions  to  adjudi- 
cation in  Estate  of  Samuel  Montgomery,  Deceased.    Be- 


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MONTGOMERY 'S  ESTATE.  413 

1918.]  Opinion  of  Court  below. 

fore  Mbstrbzat,  Potter,  Stbwart,  Moschziskbb  and 
Walung,  JJ.    Aflarmed. 

Exceptions  to  report  of  auditing  judge. 

The  facts  appear. from  the  following  opinion  by  Mil- 
ler, J. : 

Two  claims  are  presented  by  Robert  Thompson;  one 
a  note  of  |3,000.00  dated  October  1, 1903,  on  which  there 
is  a  credit  allowed  of  |1,000.00,  leaving  a  Twilance  due 
with  interest  of  |2,169.00;  the  other,  a  general  claim 
not  evidenced  by  any  writing,  in  the  sum  of  f5,896.00, 
with  interest  from  January  1, 1904,  on  which  two  credits 
have  been  recently  allowed;  the  two  claims  thus  pre- 
sented are  with  interest  in  the  sum  of  |11,066.86. 

In  addition,  although  not  presented  for  payment,  it 
appears  that  the  claimant  holds  two  notes  of  the  de- 
cedent, one  in  the  sum  of  a  thousand  dollars,  dated  June 
18,  1902,  and  the  other  in  the  sum  of  five  hundred  dol- 
lars, dated  October  16, 1905.  They  are  not  presented,  it 
being  stated  that  they  had  been  adjusted  by  various 
credits ;  they  were  explained  at  the  audit,  but  still  seem 
to  be  in  the  possession  of  the  claimant. 

There  was  also  a  second  note  of  the  three  parties  to 
the  Oakland  Trust  Company  of  f3,000.00,  made  Feb- 
ruary 1,  1913,  which  later  Moore  and  Montgomery  car- 
ried, paying  Thompson's  share  thereon;  on  settlement 
Thompson  owed  to  Montgomery  |629.37  for  this  trans- 
action, which  he  credited  on  the  large  claim  after  Mont- 
gomery's death. 

It  is  conceded  that  the  |3,000.00  note  of  October  1, 
1903,  by  reason  of  the  proof  of  the  payment  of  interest 
thereon  before  decedent's  death  and  certain  other  ac- 
knowledgments in  connection  therewith,  is  a  valid  sub- 
sisting claim. 

The  claim  in  the  sum  of  f5,896  presents  serious  diffi- 
culties. The  history  of  this  claim,  as  testified  to  by  Mr. 
Moore,  in  substance,  is  as  follows : 

Some  time  previous  to  1904  Montgomery,  Thompson 


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414  M0NT<3OMCERT  'S  ESTATE. 

Opinion  of  Court  bdow.  [869  Pa. 

and  Moate,  with  others,  were  interested  in  a  gold  mining 
proposition;  Moore  and  Montgomery  each  had  the  same 
interest  therein  and  each  borrowed  from  ThcHnpson  three 
thousand  dollars  to  pay  for  their  respective  original  in- 
vestments; as  an  evidence  of  this  the  note  from  Mont- 
gomery to  ThcHnpson  was  given. 

Evidently,  the  gold  mining  venture  was  not  a  success, 
and  in  the  fall  of  1903  a  reorganization  was  effected  in- 
cluding the  three  parties  named  and  other  stockholders 
who  got  stock  of  the  new  company  to  the  amount  repre- 
sented by  their  original  investments.  This  reorganiza- 
ti<m  involved  the  payment  of  the  debts  by  the  stockhold- 
ers who  continued.  Thompson  paid  the  shares  of  Moore 
and  MontgCHnery,  and  in  the  fall  of  1903  it  was  agreed 
between  them  that  Moore  and  Montgomery  each  owed 
Thompson  f5,896.00  for  their  shares  of  the  debts  that  he 
had  paid  for  them.  Montgomery  seemed  to  have  been 
the  secretary  or  party  who  kept  record  of  the  calcula- 
tions in  arriving  at  the  foregoing  amounts  and  to  have 
thereafter  continued  in  that  capacity,  but  no  written 
evidences  are  found  among  his  papers.  Moore  recog- 
nized, and  still  recognizes,  his  individual  debt  in  the  fore- 
going amount  to  Thompson,  and  has  been  reducing  it. 
What  the  amount  may  be  that  he  still  owes,  is  not  before 
this  court,  nor  is  it  material.  He  says  that  his  under- 
standing is  that  Montgomery,  continued  to  recognize  the 
debt;  that  he  and  Thompson  had  other  transactions 
which  were  adjusted  in  his,  Moore^s,  office,  and  that  vari- 
ous checks  and  receipts  passed  between  them ;  he  says 
that  shortly  before  Montgomery  died  he  stated  that  he 
would  like  to  sell  some  real  estate  and  settle  with  Thomp- 
son ;  but  he  is  not  able  to  state,  nor  does  it  appear  in 
evidence,  that  the  settlement  he  contemplated  was  on  the 
other  transactions  between  them  or  on  the  three  thou- 
sand dollar  note,  which  he  then  still  clearly  owed  to 
Thompson,  or  to  the  adjustment  of  the  other  note  in  the 
same  amount  that  the  parties  had  carried  between  them- 
selves in  the  Oakland  Savings  &  Trust  Company,  or 


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MONTGOMERY 'S  ESTATE.  415 

1918.]  Opinion  of  Court  below, 

whether  the  settlement  Included,  and  was  intended  to 
be,  a  recc^nition  of  the  open,  general  claim  of  f5,896.00. 

It  appears  that  in  October,  1915,  Montgomery,  the 
decedent,  gave  Thompson  a  check  for  two  thousand  dol- 
lars; neither  the  check  nor  the  stub  showed  for  what  it 
was  given;  Thompson  has  given  credit  for  one-half  of 
this  payment  on  account  of  said  note,  crediting  the  bal- 
ance on  his  general  claim  of  f5,896.00 ;  there  is  no  evi- 
dence that  he  told  Montgomery  how  he  would  apply 
this  credit  or  that  Montgomery  gave  the  check  or  any 
part  thereof  in  recognition  of  the  other  debt,  or  knew 
that  it  was  so  applied ;  so  far  as  the  evidence  indicates 
it  was  the  self-serving  voluntary  application  by  the 
creditor  of  this  check  upon  what  he  held  to  be  two  obli- 
gations to  be  due  to  him  from  Thomps(m. 

After  Montgomery's  death,  as  stated  before,  the  ad- 
ministrator and  Moore  paid  the  balance  of  the  Oakland 
Trust  Company  note;  of  the  whole  payment  to  the  ex- 
tent of  1629.37,  Thompson  on  May  5,  1916,  allowed  as  a 
credit  toward  his  claim  of  f5,896.00.  There  is  no  evi- 
dence of  any  agreement  between  the  administrator  or 
Thompson  as  to  what  indebtedness  was  to  be  credited 
with  this  amount. 

Evidently  no  interest  was  ever  paid  on  the  alleged  in- 
debtedness of  15,896.00,  for  Thompson  claims  interest 
on  the  full  amount  from  1904. 

All  the  other  indebtedness  involving  business  transac- 
tions between  Thompson  and  Montgomery  whereby 
Montgomery  was  indebted  to  Thompson  are  evidenced 
by  notes.  The  large  claim  in  question  depends  wholly 
upon  the  alleged  adjustment  between  the  parties  fixing 
a  debt  in  1904,  and  Mr.  Moore's  testimony  is  that  these 
parties  met  continuously,  discussed  their  mining  trans- 
actions and  other  transactions,  adjusted  differences  be- 
tween themselves,  and  while  he  says  Montgomery  paid 
interest  on  this  claim,  it  appears,  if  it  was  paid,  that 
Thompson  allows  no  credit  therefor,  and  thus  repudiates 
the  payment  of  Interest  thereon. 


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416  MONTGOMERY 'S  ESTATE^ 

Opinion  of  Court  below.  [259  Pa. 

The  defense  to  the  claim  is,  first,  lack  of  sufficient  evi- 
dence to  establish  it  clearly,  and,  second,  the  bar  of  the 
statute,  even  if  it  did  exist  in  1904.  As  indicated  be- 
fore, tl^e  evidence  is  sufficient  to  establish  the  fact  of  a 
recognized  indebtedness  by  Montgomery  to  Thompson 
in  January,  1904,  or  the  latter  part  of  December,  1903, 
of  15,896.00.  From  that  time  on,  there  is  no  clear  proof 
of  the  recognition  of  this  particular  claim  by  Mont- 
gomery, of  his  promise  to  pay  it,  or  any  interest  paid 
thereon,  or  any  credits  allowed  for  a  period  far  exceed- 
ing the  statutory  limitation  of  six  years,  other  than  the 
voluntary  credit  made  by  Thompson  in  1915,  and  this 
without  any  evidence  of  notice  to,  or  agreement  by,  Mont- 
gomery that  it  should  be  applied  as  a  credit  on  the  origi- 
nal debt  and  involving  an  acknowledgment  of  the  debt 
There  is  no  evidence  of  a  direct,  clear  and  unequivocal 
promise,  express  or  implied,  from  Montgomery  to 
Thompson,  or  to  Thompson's  duly  accredited  agent,  of 
his  liability  for  or  indebtedness  to,  Thompson,  coupled 
with  a  promise  to  pay  made  at  any  time.  The  fact  that 
Moore  recognized  his  original  indebtedness  to  Thomp- 
son and  acknowledges  he  still  owes  Thompson  on  ac- 
count thereof,  and  that  he  believes  that  Montgomery  is 
indebted  to  Thompson  on  a  like  claim,  is  not  sufficient  to 
bring  this  testimony  within  the  strict  standard  of  testi- 
mony which  must  be  clearly  established  to  avoid  the  bar 
of  the  statute.  In  view  of  the  fact  that  Moore  testifies 
that  these  men  had  many  other  dealings,  some  of  which 
have  been  brought  into  this  case,  and  others  of  an  out- 
side character,  involving  monetary  transactions  between 
them,  the  evidence  is  of  a  very  doubtful  character  upon 
which  to  find  as  a  fact  that  these  transactions  were  in 
connection  with,  an  acknowledgment  of,  and  promise  to 
pay,  this  distinct  old  debt  dating  from  1904. 

On  the  whole,  the  evidence  offered  in  support  of  this 
particular  claim  is  too  vague  and  indefinite  to  establish 


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MONTGOMERY 'S  ESTATE.  417 

1918.]  Opinion  of  Court  belov. 

the  fact  of  a  recognition  and  promise  to  pay  this  debt  by 
the  decedent  to  the  claimant  or  to  his  agent. 

Granted  that  a  creditor  has  the  right  to  appropriate 
payments  made  by  his  debtor  as  he  sees  fit  in  the  absence 
of  a  stipulation  by  his  debtor  as  to  which  of  several  debts, 
OP  to  what  amount,  credits  shall  be  allowed :  Chestnut 
St.  Trust  &  Saving  Fund  Co.  v.  Hart,  217  Pa.  506;  even 
to  a  debt  barred  by  the  statute  of  limitations :  Bamsey 
V.  Warner,  97  Mass.  8,  p.  13,  where  it  is  said :  "If  the 
creditor  makes  the  appropriation,  he  may  do  it  to  a  debt 
barred  by  the  statute  of  limitations ;  but  such  an  appro- 
priation will  not  have  the  effect  to  take  the  debt  out  of 
the  operation  of  the  statute.  It  seems  to  be  regarded  as 
a  mere  permission  of  law  to  the  creditor  thus  to  apply  it, 
and  not  an  intentional  payment  on  that  account,  which 
is  necessary  to  involve  the  admission  of  the  whole  debt, 
and  the  implied  renewal  of  the  promise  to  pay  it.  The 
debtor  is  not  presumed  to  have  intended  to  renew  a 
promise  which  is  no  longer  legally  binding  upon  him,  al- 
though he  has  put  it  in  his  creditor's  power  to  satisfy 
pro  tanto  a  claim  upon  which  he  had  lost  his  legal 
remedy.^' 

To  remove  the  bar  of  the  statute,  the  promise  must 
refer  distinctly  and  specifically  to  the  original  debt: 
Burr  V.  Burr,  26  Pa.  284 ;  it  must  be  unequivocal  and 
absolute,  made  to  the  owner  or  in  his  behalf:  Hostetter 
V.  HoUinger,  117  Pa.  606.  Declarations  of  a  debtor  to 
strangers  to  the  transaction  that  he  had  acknowledged 
the  indebtedness  to  his  creditor  and  promised  him  to 
pay  it,  will  not  bar  the  statute :  Spangler  v.  Spangler, 
122  Pa.  358;  the  promise  to  pay  must  not  be  vague, 
shadowy  or  uncertain;  it  must  be  express  and  unam- 
biguous :  Kensington  Bank  v.  Patton,  14  Pa.  479.  The 
decisions  of  the  Supreme  Court  apply  very  strict  rules 
to  acknowledgments  to  take  a  case  out  of  the  statute  of 
limitations  and  are  adhered  to  in  letter  and  spirit: 
Schaeflfer  v.  Hoffman,  113  Pa.  1.  Here,  as  in  Shaffer's 
Est.,  228  Pa.  36,  a  mere  general  statement  by  the  debtor 
Vol.  cclix— 27 


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418  MONTGOMERY 'S  ESTATE. 

Opinion  of  Court  below — Opinion  of  the  Court  [369  Pa. 
that  he  will  settle,  without  more,  is  not  an  acknowledg- 
ment of  a  debt  and  a  promise  to  pay-  Here,  as  there, 
Thompson  had  abundant  opportunity  to  enforce  his  de- 
mand against  Montgomery,  who  evidently  had  become  a 
man  of  means,  with  whom  he  was  in  constant  communi- 
cation and  had  many  business  transactions,  and  from 
whom  he  took  an  acknowledgment  in  writing  of  a  debt 
in  every  other  case.  It  was  easy,  prudent  and  vitally 
essential  that  the  claimant  in  this  case  should  have  bet- 
ter evidences  of  the  alleged  indebtedness  whiph  he  should 
have  acquired  with  diligence  while  the  alleged  debtor 
was  living,  and  not  wait  until  his  lips  are  sealed  in  death. 

This  claim  must  be  disallowed  for  want  of  the  clear, 
explicit  and  unambiguous  testimony  indicating  an  ac- 
knowledgment, of,  and  promise  to  pay,  this  particular 
debt.  The  credits  allowed  without  authority  on  the 
claim  in  1915  and  since  the  death  of  Montgomery  in  1916 
in  the  absence  of  an  agreement  that  it  should  be  applied 
thereto,  are  not  sufficient  to  toll  the  statute. 

The  three  thousand  dollar  note,  to  the  extent  of  two 
thousand  dollars  and  interest,  is  allowed. 

The  lower  court  dismissed  the  exceptions  to  the  adjudi- 
cation.   Robert  Thompson  appealed. 

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

Thomas  8.  Brown,  of  Brown,  Stewart  d  Bostwiek,  for 
appellant. 

Joseph  N.  Houston,  with  him  Edward  C.  Ohdlfant,  for 
appellee. 

Per  Curiam,  January  7, 1918 : 
The  decree  of  the  court  below  is  affirmed  on  the  opin- 
ion of  the  learned  auditing  ^udge. 


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CAMPBELL  V.  VINCENT  et  si.,  AppelUnts.        419 
1918.]  SyUabus—ArgumentB. 

Campbell  v.  Vincent  et  aL,  Appellants. 

Negligence — Defective  eidewalk  —  Flagstone  —  Roots  of  trees — 
Liability  of  property  owner — Case  for  jury. 

In  an  action  by  a  pedestrian  to  recover  for  personal  injuries  re- 
sulting from  a  defect  in  a  sidewalk  causing  her  to  trip  and  fall, 
the  case  is  for  the  jury  and  a  verdict  and  judgment  for  the  plain- 
tiff will  be  sustained  where  it  appeared  that  at  the  point  of  the  ac- 
cident the  outer  edge  of  the  flagstone  pavement  had  been  raised  to 
a  height  of  from  four  to  six  inches  at  the  surface  by  the  growth 
of  the  roots  of  a  tree;  that  at  the  time  of  the  accident  it  was  almost 
dark,  snow  was  falling  and  nearly  two  inches  of  snow  covered  the 
ground ;  that  plaintiff  was  looking  in  front  of  her  for  a  distance  of 
from  four  to  six  feet  and  did  not  see  the  defect  in  the  sidewalk  until 
she  had  fallen,  and  while  still  on  the  ground  discovered  the  cause 
of  her  accident. 

Argued  Oct.  15, 1917.  Appeal,  No.  137,  Oct.  T.,  1917, 
by  defendants,  from  judgment  of  C.  P.  Allegheny  Co., 
April  T.,  1915,  No.  1561,  on  verdict  for  plaintiff  in  case 
of  Araminta  M.  Campbell  v.  Fannie  B.  Vincent,  Samuel 
O.  McLean,  Frank  McLean,  Ida  J.  Haymaker,  Clyde  J. 
McLean  and  Minnie  M.  Kammerer  impleaded  with 
Sarah  B.  Patterson.  Before  Beown,  C.  J.,  Potter, 
MoscHZiSKBR,  Frazbr  and  Walung,  J  J.    Affirmed. 

Trespass  for  personal  injuries.     Before  Evans,  J. 
The  facts  appear  by  the  opinion  of  the  Supreme  Court. 
Verdict  for  plaintiff  for  |2,500  and  judgment  thereon. 
Defendants  appealed. 

Error  assigned,  among  others,  was  in  refusing  defend- 
ants' motion  for  judgment  non  obstante  veredicto. 

Oeorge  C.  Bradshaw,  with  him  if.  L.  Thompson  and 
L.  B.  D\  Reese,  for  appellants. — Plaintiff  was  guilty  of 
contributory  negligence  as  a  matter  of  law :  Kennedy  v. 
Pittsburgh,  230  Pa.  244 ;  Kennedy  v.  Philadelphia,  220 
Pa.  273;    Sickles  v.  Philadelphia,  209  Pa.  114;    Shall- 


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420       CAMPBELL  v.  VINCENT  dt  al.,  AppeUa^ts. 

ATgument8--Opinion  of  the  Court.  [269  :Fa. 

cross  V.  City  of  Philadelphia,  187  Pa.  143;   Lerner  v. 
City  of  Philadelphia,  221  Pa-  294. 

Meredith  R.  Marshall,  with  him  Rodp  P.  Marshall,  for 
appellees,  cited:  Llewellyn  v.  Wilkes-Barre,  254  Pa. 
196;  Levine  v.  City  of  Pittsburgh,  252  Pa.  181;  Kellow 
V.  City  of  Scranton,  195  Pa.  134;  Allegheny  v.  Gilliam, 
30  P.  L.  J.  461. 

Opinion  by  Mb.  Justicb  Fbazeb,  January  7, 1918: 
Plaintiff  sued  defendants,  property  owners  on  South 
avenue  in  the  Borough  of  Wilkinsburg,  to  recover  dam- 
ages for  personal  injuries  sustained  by  reason  of  a  de- 
fect in  the  sidewalk  in  front  of  defendants'  premises. 
The  case  was  submitted  to  the  jury  in  a  fair  and  ade- 
quate charge,  of  which  no  complaint  is  made,  and  a  ver- 
dict rendered  for  plaintiff.  Defendants  appealed.  The 
single  question  raised  is  whether  the  court  erred  in  not 
holding,  as  matter  of  law,  that  plaintiff  was  guilty  of 
contributory  negligence. 

In  front  of  defendants'  property  between  the  paved 
portion  of  the  sidewalk  and  the  curb  stands  a  shade  tree, 
the  roots  of  which  had  by  gradual  growth  raised  the 
outer  edge  of  the  flagstone  pavement  to  a  height  of  from 
four  to  six  inches  above  the  surface,  causing  the  flag- 
stone to  break  near  the  middle  of  the  pavement  and 
produce  a  depression  due  to  the  elevation  of  the  outer 
edge  of  the  stone.  On  the  evening  of  March  2, 1914,  be- 
tween 5  and  5 :  30  o'clock,  plaintiff,  in  passing  along  the 
sidewalk  at  this  point,  struck  her  foot  against  the  raised 
end  of  the  flagstone,  so  that  she  tripped  and  fell,  with  the 
result  that  she  sustained  the  injuries  for  which 
this  action  was  brought  to  recover  compensation.  At 
the  time  of  the  accident  "it  was  almost  dark,"  snow  was 
falling  and  nearly  two  inches  of  newly  fallen  snow  cov- 
ered the  ground.  Plaintiff  testified  she  was  looking  in 
front  of  herior  a  distance  of  frcnn  four  to  six  feet,  walk- 
ing with  ordinary  care  and  did  not  see  the  defect  in  the 


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CAMPBELL  V.  VINCENT  et  al,,  App^Uwis.        421 
19ia]  Opinioa  of  tha  Court. 

sidewalk  until  she  had  fallen^  and^  while  still  on  the 
ground^  discovered  the  cause  of  her  accident. 

In  view  of  this  testimony  plaintiff  fully  met  the  bur- 
den resting  upon  her  to  show  conditions  outside  of  her- 
self which  prevented  her  from  noticing  the  defect,  or  ex- 
cused her  failure  to  observe  it,  within  the  rule  laid  down 
in  Lerner  v.  Philadelphia,  221  Pa.  294;  the  question  of 
her  contributory  negligence  consequently  was  for  the 
jury. 

The  uncertain  light,  the  falling  snow,  and  the  snow  at 
the  time  covering  the  ground,  all  tended  to  serve  as  a 
reasonable  excuse  for  plaintiff's  failure  to  observe  the 
condition  of  the  walk,  and  whether  she  was  exercising 
such  care  and  caution  as  the  law  requires  of  her  was  for 
the  jury:  Bruch  v.  Philadelphia,  181  Pa.  588 ;  Llewellyn 
V.  Wilkes-Barre,  254  Pa.  196. 

The  judgment  is  affirmed. 


Swartz  V.  BergendahM^ight  Company, 
Appellant. 

Negligence — Master  and  servant  —  Defective  scaffold  —  Fall  of 
workman — Safe  pUice  to  work — Employ et^s  duty  to  inspect  and  re" 
pair — Delegation  of  duty  —  Foreman  —  Y ice-principal  —  Obvious 
danger — Assumption  of  risk — Contributory  negligence — Case  for 
jury. 

1.  A  scaffold  is  a  place  to  work  and  in  the  erection  thereof  the 
employer  is  providing  a  place  to  work,  and  if,  through  failure  of 
duty  to  make  it  reasonably  safe,  an  injury  results  to  another,  he  is 
responsible. 

2.  It  is  the  duty  of  the  employer  not  only  to  famish  safe  timbers 
for  a  scaffold  and  to  have  it  properly  constructed,  but  also  to  main- 
tain it  in  reasonably  safe  condition  by  inspection  and  repair. 

8.  An  employee  must  know  the  circumstances  and  appreciate  the 
risk  before  he  will  be  held  to  have  assumed  it.  He  is  not  equally 
bound  with  his  employer  to  know  whether  appliances  are  reasonably 
safe  and  in  ordinary  use  and  does  not  assume  the  risk  upon  the 
employer's  failure  to  provide  such  as  are  proper. 

4.  In  an  action  against  a  construction  company  to  recover  for 


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422  SWAETZ  t;.  BEEGBNDAHL-KNIGHT  CO.,  Appel. 

Syllabus— Aigumeuts.  [259  Pa. 

the  death  of  plaintiff^s  husband  occasioned  fay  the  breaking  of  a 
scaffold  upon  which  he  was  working  while  in  defendant's  empby, 
the  case  was  for  the  jury  and  a  verdict  and  judgment  for  plaintiff 
will  be  sustained  where  it  appeared  that  the  scaffold  had  been 
erected  by  other  men  in  defendant's  employ  about  two  or  three 
weeks  prior  to  the  accident,  which  occurred  on  the  first  day  de- 
ceased worked  on  the  building  and  about  an  hour  after  he  began 
work;  that  the  timber  used  in  the  broken  beam  was  defective 
in  not  being  sufficiently  large  for  the  purpose  of  carrying  the 
weight  for  which  it  was  intended,  that  it  contained  wind-shakes  or 
cracks  and  numerous  knots,  many  of  which  extended  entirely 
through  the  timber  and  could  be  seen  externally  before  and  after 
the  accident,  and  that  they  weakened  the  beam  and  thereby  dimin- 
ished its  canying  capacity ;  and  that  no  inspection  of  the  scaffold 
had  been  made  subsequent  to  its  construction  and  prior  to  the  acci- 
dent by  which  the  defects  could  and  should  have  been  discovered 
and  remedied. 

5.  In  such  case  the  duty  to  provide  a  safe  place  to  work  was  a 
nondelegable  duty  and  there  is  no  merit  in  defendant's  contention 
that  although  the  foreman  who  made  the  selection  of  the  timber 
was  a  vice-principal  there  waa  no  evidence  of  his  incompetency 
and  his  mistake  therefore  did  not  amount  to  negligence. 

Argued  Oct.  10, 1917.  Appeal,  No.  100,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Allegheny  Co.,  Oct. 
T.,  1915,  No.  62,  on  verdict  for  plalntiflf  in  case  of  Ella 
J.  Swartz  V.  Bergendahl-Enight  Company,  an  Illinoifi 
corporation.  Before  Mestrbzat,  Potter,  Stewart, 
MosGHZiSKER  and  Walung,  JJ.    Affirmed. 

Trespass  for  personal  injuries.     Before  Carnahan,  J. 
Verdict  for  plaintiff  for  |5,400  and  judgment  thereon. 
Defendant  appealed. 

Error  assigned,  among  others,  was  in  refusing  defend- 
ant's motioia  for  judgment  non  obstante  veredicto. 

William  8.  Dalzell,  of  Dalzell,  Fisher  d  Hawkins,  for 
appellant. — If  there  were  defects  in  the  beam  they  were 
apparent  to  deceased,  and  he  therefore  assumed  the  risk : 
Brosman  v.  Lehigh  Valley  R.  R.  Co.,  113  Pa.  490;  Bern- 


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SWABTZ  V.  BBRGElSfDAHL-KNIGHT  CO.,  Appel.  423 
1918.]  Argumoits. 

isch  V.  Roberts,  143  Pa.  1;   Cunningham  v.  Port  Pitt 
Bridge  Company,  197  Pa.  625. 

In  order  that  an  employer  could  be  held  liable  to  an 
employee  for  n^ligenee  arising  from  some  defect  in  the 
machinery  or  appliances  at  the  time  of  the  accident,  it  is 
not  enough  to  show  that  the  defect  existed  at  the  moment 
of  the  accident :  Mixter  v.  Imperial  Coal  Company,  152 
Pa.  395;  Baker  v.  Allegheny  Valley  R.  R.  Co.,  95  Pa. 
211 ;  Sandt  v.  North  Wales  Foundry  Company,  214  Pa. 
215. 

The  danger  resulting  in  the  injury  to  the  plaintiff  was 
transitory  and  due  to  deterioration  in  the  condition  of 
the  beam  during  the  progress  of  the  work,  and  it  is  not 
the  duty  of  the  master  in  such  case  to  follow  up  the  serv- 
ant every  moment  to  see  that  the  implement  with  which 
he  is  working  is  safe :  Coleman  v.  Keenan,  223  Pa.  29 ; 
Wilson  V.  Brown,  222  Pa.  364;  Miller  v.  American 
Bridge  Company,  216  Pa.  559;  lams  v.  Hazel-Atlas 
Glass  Company,  251  Pa.  439. 

A.  C.  Stein,  with  him  A.  C.  Teplitz  and  Fred  E.  Geiser, 
for  appellees. — It  was  the  duty  of  the  foreman  to  inspect 
the  beams  from  time  to  time :  Barry  v.  Jones  &  Laugh 
lin  Steel  Co.,  234  Pa.  367;  O'Donnell  v.  The  Bell  Tele- 
phone Co.  of  Penna.,  250  Pa.  440 ;  Wilkinson  v.  Evans, 
34  Pa.  Superior  Ct.  473;  Bondo  v.  American  Iron  & 
Steel  Mfg.  Co.,  66  Pa.  Superior  Ct.  479. 

Even  though  the  danger  may  have  been  apparent  to  de- 
fendant's employees  constructing  the  scaffold,  such  fact 
could  not  relieve  the  employer  of  liability,  where  de- 
ceased did  not  enter  its  employ  until  after  the  construc- 
tion of  the  scaffold :  Whitely  v.  Evans,  30  Pa.  Superior 
Ct.  41;  Kaiserv.  Flaccus,  138Pa.  332;  Wallace  v.  Hen- 
derson, 211  Pa.  142;  Bondo  v.  American  Iron  &  Steel 
Mfg.  Co.,  66  Pa.  Superior  Ct.  479. 

Defendant  is  liable  for  its  foreman's  negligence  in 
designating  the  defective  beam  in  question  for  use  in  the 
isicaffold:  Banner  v.  Wells,  248  Pa.  106;  Groves  v.  Mc- 


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424  SWABTZ  v.  BEBGENDAHL-KNIGHT  CO.,  App^l. 

Arguments — Opinion  of  the  Court.  [259  Pa, 

Neil,  226  Pa.  345;  Studebaker  v.  Shelby  Steel  Tabe  Ck>., 
226  Pa.  239 ;  Carr  v.  General  Fire  Extinguisher  Co.,  224 
Pa.  346;  Mayers  v.  The  Atlantic  Refining  Co.,  254  Pa. 
544;  Elenzing  y.  Greenfield  Lumber  Co.,  255  Pa.  616. 

Opinion  by  Ma.  Justigb  Mbstbbzat,  January  7, 1918: 
This  is  an  action  of  trespass  brought  by  Ella  E.  Swartz 
to  recover  damages  for  the  death  of  her  husband  who  was 
killed  by  the  breaking  of  a  scaffold  upon  which  he  was 
working  while  in  the  employ  of  the  defendant  company. 
The  plaintiff's  husband  was  a  structural  steel  worker 
and  riveter,  and,  on  March  16,  1915,  while  he  was  en- 
gaged in  assisting  in  the  erection  of  the  structural  iron 
and  steel  frame  of  the  William  Penn  Hotel  in  the  City 
of  Pittsburgh,  one  of  the  two  needle  beams  in  the  scaf- 
folding on  which  he  and  other  employees  were  working 
broke,  causing  the  plank  resting  on  the  beams  to  fall, 
and  throwing  the  deceased  through  an  open  space  di- 
rectly beneath  the  scaffold  a  distance  of  about  eighty 
feet  to  the  street  floor,  as  a  result  of  which  he  died.  The 
scaffold  was  constructed  by  laying  planks  across  parallel 
timbers  about  seven  feet  apart,  known  as  needle  beams, 
which  were  suspended  by  ropes  from  the  steel  girders 
immediately  above.  The  negligence  alleged  was  the  fail- 
ure to  furnish  the  deceased  a  reasonably  safe  place 
whereon  to  work,  negligent  and  improper  construction 
of  the  scaffold  by  using  therein  a  defective  needle  beam, 
failure  to  properly  inspect  the  beam,  failure  to  provide 
and  furnish  suitable  beams  for  the  construction  of  the 
scaffold,  and,  in  violation  of  the  laws  of  Pennsylvania, 
failure  to  have  the  joists  or  girders  on  the  fourth  and 
fifth  floors,  beneath  the  place  where  the  deceased  was 
working,  covered  with  rough  boards  or  other  suitable 
material  so  as  to  protect  the  workmen  on  the  scaffold 
from  falling  through  said  joists  or  girders.  The  plea 
was  not  guilty.  The  trial  resulted  in  a  verdict  for  the 
plaintiff.  The  defendant  offered  no  evidence,  but  re- 
quested the  court  to  give  binding  instructions  for  the  de- 


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SWABTZ  V.  BERaENDAHL-KNIGHT  CO.,  Appel.  425 
1918.]  Opinion  of  the  Court. 

fendanty  which  was  refused.  The  errors  assigned  are 
the  refusal  to  give  such  instructions  and  in  overruling 
the  defendant's  motion  for  judgment  non  obstante  vere- 
dicto. 

The  only  question  involved  in  this  appeal^  therefore,  is 
whether  there  was  sufficient  evidence  of  n^ligence  to 
justify  the  court  in  submitting  the  case  to  the  jury.  It 
is  contended  by  the  defendant  that  there  was  no  evidence 
of  any  defect  in  the  scaffold  at  the  time  of  the  accident; 
that,  if  there  was  a  defect,  it  was  open  and  obvious  and 
one  which  the  deceased  was  bound  to  take  notice  of ;  and 
that  as  the  evidence  shows  there  was  no  standard  for 
selecting  the  materials  for  constructing  the  scaffold,  and 
such  selection  was  dependent  upon  the  good  judgment 
of  the  foreman,  ^Vho  was  when  making  the  selection  a 
vice-priucipal,"  and,  there  being  no  evidence  of  incompe- 
tency of  the  foreman,  his  mistake,  if  any  there  was,  did 
not  amqunt  to  negligence  for  which  the  employer  was 
Uable. 

We  have  carefully  examined  all  the  testimony  and  are 
of  the  opinion  that  the  learned  judge  was  right  in  hold- 
ing the  evidence  sufficient  to  warrant  its  submission  to 
the  jury  on  the  question  of  defendant's  negligence.  We 
think  it  not  necessary  to  give  an  excerpt  of  the  testi- 
mony, or  to  state  in  detail  what  each  witness  testi- 
fied. The  only  evidence  in  the  case  is  that  intro- 
duced by  the  plaintiff.  Swartz  was  a  riveter,  and  was 
engaged  in  that  work  at  the  time  of  the  accident.  The 
scaffold  was  erected  by  other  men  in  the  riveting  gang 
about  two  or  three  weeks  before  the  accident  which  oc- 
curred on  the  first  day  Swartz  worked  on  the  building 
and  an  hour  or  so  after  he  began  work.  The  needle 
beams  were  some  eighteen  feet  in  length.  The  brok- 
en beam  was  in  evidence  and  inspected  by  the  jury. 
These  beams  were  three  and  one-half  by  five  inches,  and 
expert  witnesses  testified  that  they  should  have  been 
four  by  six  inches,  or  larger.  A  witness  testified  that 
the  wood  in  the  broken  beam  was  brash  or  brittle  and  too 


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426  SWARTZ  r.  BEEGENDAHL^KNIGHT  CO.,  AppeL 

Opinion  of  the  Court.  [259  Pa. 

light  for  the  use^  and  practically  worthless  for  a  needle 
beam.  As  a  reason  for  his  opinion,  he  said  that  the  tim- 
ber was  not  the  right  size  nor  the  right  grade.  It  ap- 
peared from  other  testimony  that  the  timber  used  in  the 
broken  needle  beam  showed  a  number  of  wind-shakes 
which  would  be  perfectly  evident  before  as  well  as  after 
the  beam  broke  and  regardless  of  whether  the  beam  had 
been  painted  or  not.  Wind-shakes  are  cracks  in  the  tim- 
ber that  are  due  to  the  wind  while  the  timber  stands  or  to 
drying  in  the  center  after  the  timber  is  cut.  There  were 
five  visible  wind-shakes  on  one  side  of  the  broken  beam, 
not  including  those  on  the  top  or  bottom.  Wind-shakes 
split  the  beam  and  prevent  it  from  acting  as  a  whole. 
They  split  the  interior  section  of  the  beam  and  reduce  its 
strength  as  a  carrying  timber.  There  were  a  great  num- 
ber of  knots  in  the  side  of  the  beam  which  were  very  pro- 
nounced and  which  impaired  its  strength.  Some 
of  the  knots  extended  entirely  through  the  beam^  and 
it  broke  at  this  point.  It,  therefore,  appears  from 
the  testimony  that  the  timber  used  in  the  broken 
beam  was  defective  in  not  being  sufficiently  large  for  the 
purpose  of  carrying  the  weight  for  which  it  was  intended, 
that  it  contained  wind-shakes  or  cracks  and  numerous 
knots,  many  of  which  extended  entirely  through  the  tim- 
ber and  could  be  seen  externally  before  and  after  the  ac- 
cident, and  that  they  weakened  the  beam  and  thereby 
diminished  its  carrying  capacity.  It  was  further  shown 
that  no  inspection  of  the  scaffold  had  been  made  subse- 
quent to  its  construction  and  prior  to  the  accident,  by 
which  the  defects,  disclosed  by  the  evidence,  could  and 
should  have  been  discovered  and  remedied.  By  their 
verdict,  and  there  was  sufficient  evidence  to  support  it, 
the  jury  found  that  the  needle  beam  was  defective  and 
from  external  appearances  the  defects  could  and  should 
have  been  discovered  at  the  time  the  beam  was  selected 
for  the  scaffold,  and  also  thereafter  by  proper  inspec- 
tion. It  is  the  duty  of  the  employer  not  only  to  furnish 
safe  timbers  for  the  scaffold  and  to  have  it  properly  con- 


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SWARTZ  V.  BEBGENDAHL-KNIGHT  CO.,  Appel.  427 
1018.]  Opinion  of  the  Court. 

Btructedy  but  also  to  maintaiu  it  in  a  reasonably  safe  con- 
dition by  inspection  and  repair :  Finnerty  v.  Bnmham^ 
205  Pa«  305;  Barry  v.  Jones  &  Laughlin  Steel  Co.,  234 
Pa.  367. 

There  is  no  ground  for  the  contention  that  the  defects 
were  obvious  to  the  deceased  before  the  accident.  The 
evidence  showed  the  scaffold  had  been  erected  two  or 
three  weeks  before  he  saw  and  went  upon  it  on  the  morning 
he  received  his  injuries,  and  he  had  been  working  there 
only  about  an  hour  before  the  beam  broke  and  precipitated 
the  workmen  to  the  ground  below.  It  was  his  first  day 
on  the  job.  The  needle  beams  were  necessarily  covered 
by  the  planks  laid  upon  them,  and  any  defects  in  them 
would  be  hidden  from  his  view.  The  testimony,  there- 
fore, did  not  disclose  negligence  or  assumption  of  risk 
on  the  part  of  the  deceased.  An  employee  must  know 
the  circumstances  and  appreciate  the  risk  before  he  will 
be  held  to  have  assumed  it:  Schall  v.  Cole,  107  Pa.  1. 
He  is  not  equally  bound  with  his  employer  to  know 
whether  appliances  are  reasonably  safe  and  in  ordinary 
use,  and  he  does  not  assume  the  risk  upon  the  employer's 
failure  to  provide  such  as  are  proper :  Bannon  v.  Lutz, 
158  Pa.  166.  It  may  be  suggested,  however,  that 
whether  the  danger  was  obvious  and  should  have  been 
seen  and  recognized  by  the  deceased  was  for  the  jury  and 
not  for  the  court 

The  appellant  admits  that  the  foreman  was  a  vice- 
principal  when  making  the  selection  of  the  timber  for 
the  scaffold,  but  claims  that,  as  there  was  no  evidence  of 
his  incompetency,  his  mistake  did  not  amount  to  n^li- 
gence.  It  appears  from  the  evidence  and  the  jury  were 
justified  in  finding  that  there  was  not  an  ample  supply 
of  materials  for  the  construction  of  this  scaffold  and  also 
that  defendant's  foreman  selected  the  particular  beams 
and  boards  which  the  employees  were  to  use  in  the  scaf- 
fold and  that  there  were  no  other  beams  available  for  use 
in  its  construction.  The  act  of  the  foreman,  therefore, 
in  designating  the  material  to  be  used  in  this  particular 


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428  SWABTZ  v.  BERGENDAHL-KNIGHT  CO.,  Appel. 

Opinion  of  the  Court.  [259  Pa. 

scaffold,  was  the  act  of  his  employer.  It  was  unques- 
tionably the  duty  of  the  defendant  to  furnish  the  de- 
ceased with  a  reasonably  safe  place  to  work,  and  it  was 
immaterial  whether  that  duty  was  performed  by  the 
company's  general  superintendent  or  an  ordinary  em- 
ployee, as  either  would  be  i)erforming  a  nondelegable 
duty  imposed  upon  the  employer.  He  would  be  a  vice- 
principal  for  whose  act,  resulting  in  an  injury  to  an- 
other, his  employer  was  responsible.  A  scaffold  is  a 
place  to  work,  and  in  the  erection  of  that  scaffold  the 
employer  is  providing  a  place  to  work,  and,  if  through 
failure  of  duty  to  make  it  reasonably  safe  an  injury  re- 
sults to  another,  he  is  responsible.  It  is  immaterial 
whether  the  scaffold  is  insufficient  and  defective  by  rea- 
son of  the  use  of  faulty  and  unsuitable  material  or  in  its 
construction,  the  responsibility  rests  upon  the  employer. 
He  fails  to  perform  a  duty  which  the  law  imposes  upon 
him,  and,  hence,  his  liability  results  for  the  injurious 
consequences.  There  are  numerous  decisions  in  this 
state  sustaining  these  legal  conclusions  on  facts  similar 
to  those  present  in  this  case.  We  may  cite  the  follow- 
ing: Geist  V.  Rapp,  206  Pa.  411;  Carr  v.  General  Fire 
Extinguisher  Co.,  224  Pa.  346;  Studebaker  v.  Shelby 
Steel  Tube  Co.,  226  Pa.  239;  Groves  v.  McNeil,  226  Pa. 
345;  Danner  v.  Wells,  248  Pa.  105;  Garrison  v.  Arm- 
strong &  Co.,  248  Pa.  402;  Mayers  v.  Atlantic  Ee- 
fining  Co.,  254  Pa.  544.  The  facts  of  this  case  cleariy 
distinguish  it  from  the  cases  cited  and  relied  on  by  ap- 
pellant where  the  workmen  themselves  selected  the  tim- 
ber and  erected  the  scaffold  from  an  ample  supply  of 
proper  materials  furnished  by  the  employer.  Here,  as 
already  observed,  the  foreman,  acting  for  the  employer, 
selected  the  defective  beam  and  planks  to  be  used  in  the 
scaffold,  from  the  only  timber  available  for  the  purpose. 
The  judgment  is  affirmed. 


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EDMUNDSON'S  ESTATE.  429 

1018.]  SyUabus. 

Edmundson's  Estate. 

Contracts — Contracts  for  benefit  of  third  person — Beneficiary's 
right  to  sue — Evidence — Deeds — Consideration — Parol  evidence  of 
different  considerationr-^Witnesses  —  Competency  —  Testimony  of 
surviving  party— Act  of  May  2S,  1887,  P.  L.  168,  Sec.  6,  Clause  e. 

1.  To  the  rule  that  at  common  law  no  one  could  maintain  an 
action  upon  a  contract  to  which  he  was  not  a  party,  there  are  ex- 
ceptions where  the  promise  to  pay  the  debt  of  a  third  person  rests 
upon  the  fact  that  money  or  property  is  placed  in  the  hands  of  the 
promisor  for  that  particular  purpose,  and  where  one  buys  out  the 
stock  of  a  tradesman  and  undertakes  to  take  the  place,  fill  the  con- 
tracts and  pay  the  debts  of  his  vendor. 

3.  Parol  evidence  is  competent  for  the  purpose  of  showing:  that 
the  consideration  for  the  conveyance  of  real  estate  is  other  than  that 
expressed  in  the  deed. 

8.  To  disqualify  a  surviving  party  to  a  contract  from  testifying, 
he  must  not  only  be  a  surviving  and  remaining  party  but  must  have 
an  interest  adverse  to  the  right  of  the  deceased  party,  under  the 
Act  of  May  23,  1887,  P.  L.  158,  Section  5,  Clause  e.  It  is  the 
adverse  interest,  not  the  adverse  testimony,  that  disqualifies  a 
witnees. 

4.  Where  a  x>erson  conveys  real  estate^  on  the  grantee's  express 
oral  promise  to  pay,  to  a  third  person,  the  amount  received  from  the 
subsequent  sale  of  the  property,  and  thereafter  the  grantee  dies 
without  having  fulfilled  the  promise,  thj  grantor  is  a  competent 
witnees  to  testify  in  behalf  of  the  beneficiaiy's  claim  against  the 
grantee's  estate. 

6.  A  claimant  against  a  decedent's  estate  presented  evidence  that 
a  conveyance  of  an  interest  in  certain  real  estate  had  been  made 
by  claimant's  mother  to  decedent  in  her  lifetime  on  decedent's  oral 
promise  that  in  case  she  should  sell  it  during  her  lifetime  she  would 
pay  the  claimant  the  full  amount  invested  therein  by  plaintiff's 
father,  and  if  she  did  not  sell  same  would  bequeath  said  amount  to 
claimant.  The  deed  recited  a  valuable  consideration,  but  there  was 
evidence  that  no  actual  consideration  had  been  paid.  Decedent 
did  not  sell  the  real  estate  and  at  her  death  bequeathed  $1,000  to 
claimant.  Claimant's  mother  testified  as  to  such  oral  contract,  al- 
though the  existence  thereof  was  denied  by  decedent's  children, 
who  claimed  that  at  the  time  of  the  delivery  of  the  deed  there  inras 
a  default  in  payment  of  the  money  due  on  a  mortgage  *and  that 
the  property  was  comveyed  to  prevent  foreclosure  proceedings.  Tho 


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430  BDMUNDSON'S  ESTATE. 

Syllabuft— Arguments.  [850  Pt. 

auditing  judge  allowed  the  claim  less  the  amount  of  the  legacj  of 
$1,000.  Held,  (1)  claimant  was  entitled  to  recover  on  the  con- 
tract, being  the  only  person  beneficially  interested  in  the  payment 
of  the  money,  (2)  claimant's  mother  was  a  competent  witness  to 
prove  the  oral  contract  as  she  was  not  an  adverse  party,  and  (3) 
there  was  sufficient  evidence  to  sustain  the  finding  of  the  auditing 
judge  in  claimant's  favor  and  the  finding  will  be  sustained. 
Hoffa  V.  Hoffa,  88  Pa.  Superior  Ct.  856,  approved. 

Practice,  Supreme  Court — Appeals — Auditing  judge — Findingu 
of  fact — Conclusiveness, 

6.  In  the  absence  of  a  clear  and  manifest  error  the  findings  of 
fact  of  an  auditing  judge  on  conflicting  evidence  will  be  sustained. 

Argued  Oct  11,  1917.  Appeal,  No.  119,  Oct  T.,  1917, 
by  E.  R.  Edmundson  and  Ira  II.  Edmundson,  from  de- 
cree of  O.  C.  Allegheny  Co.,  March  T.,  1917,  No.  53,  dis- 
missing exceptions  to  adjudication  in  Estate  of  Phebe 
Edmundson,  deceased.  Before  Mbstrbzat,  Potter, 
Stewart,  Moschzisker  and  Walling,  JJ.    Affirmed. 

Exceptions  to  adjudication.    Before  Trimble,  J. 
The  facts  appear  by  the  opinion  of  the  Supreme  Court 
The  court  in  banc  entered  a  decree  sustaining  the  find- 
ings of  the  auditing  judge.    E.  R.  Edmundson  and  Ira  H. 
Edmundson  appealed. 

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

E.  R.  Edmundson,  with  him  Owen  8.  Cecil,  for  appel- 
lant.— The  facts  of  the  case  at  bar  do  not  bring  it  within 
the  exceptions  to  the  rule  that  no  one  can  recover  on  a 
contract  to  which  he  is  not  a  party,  since  the  money  to 
be  paid  was  not  to  be  derived  from  or  out  of  the  property 
conveyed,  the  deed  acknowledging  full  consideration  for 
the  conveyance:  Hawn  v.  Stoler,  208  Pa.  610;  Fross's 
App.,  105  Pa.  268 ;  Walsh's  App.,  122  Pa.  177. 

Claimant's  mother,  >a  surviving  party  to  the  contract, 


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EDMUNDSON'S  ESTATE.  431 

1918.]  Arguments — Opinion  of  the  Oourt 

was  not  a  competent  witness :  Act  of  May  23^  1887^  P.  L. 
158,  Sec.  5,  Clause  e. 

The  evidence  was  insufficient  to  support  claimant's 
claim:  Bergner  v.  Bergner, 219  Pa.  113 ;  WorralPs  App., 
110  Pa.  349;  Walker  v.  Walker,  254  Pa.  320;  OUver  v. 
OUver,  251  Pa.  574. 

John  E.  Winner,  with  him  John  D.  Brown,  for  ap- 
pellee.— Where  money  or  property  is  placed  by  one  in  the 
hands  or  possession  of  another  to  be  paid  or  delivered  to 
a  third  person,  an  equitable  title  to  the  money  or  thing 
which  is  the  consideration  of  the  promise  passes  to  the 
beneficiary  and  he  may  release  or  compel  performance  in 
his  own  name :  Adams  v.  Kuehn,  119  Pa.  76 ;  HolBfa  v. 
Hoffa,  38  Pa.  Superior  Ct.  356;  Delp  v.  Brewing  Com- 
pany, 123  Pa.  42;  First  M.  E.  Church  v.  Isenberg,  246 
Pa.  221;  Sweeney  v.  Houston,  243  Pa.  542;  Howes  v. 
Scott,  224  Pa.  7;  Hostetter  v.  Hollinger,  117  Pa.  606; 
Sargeant  v.  Nat'l  Life  Insurance  Co.  of  Vermont,  189  Pa. 
341 ;  Norristown  Trust  Co.  v.  Lentz,  30  Pa.  Superior  Ct. 
408;  Lancaster  County  Nat'l  Bank  v.  Henning,  171  Pa. 
399. 

It  is  the  adverse  interest  of  a  surviving  party  to  a  con- 
tract and  not  his  adverse  testimony  that  disqualifies  him : 
First  National  Bank  of  Bloomsburg  v.  Gerli,  225  Pa. 
256;  Joseph  Home  &  Co.  v.  Petty,  192  Pa.  32;  Dickson 
V.  McGraw  Bros.,  151  Pa.  98;  Allen's  Est.,  207  Pa.  325. 

Opinion  by  Mb.  Justice  Mbstbbzat,  January  7, 1918 : 
This  is  an  appeal  from  the  decree  of  distribution  made 
by  the  Orphans'  Court  of  Allegheny  County,  allowing  a 
claim  against  the  estate  of  Mrs.  Phebe  Edmundson,  de- 
ceased. In  1892  J.  A.  Herron  purchased  a  house  and  lot 
in  the  City  of  Pittsburgh  for  the  consideration  of  five 
thousand  five  hundred  dollars,  and,  at  his  suggestion, 
the  title  to  the  property  was  taken  in  the  name  of  his 
wife,  Carrie  E.  Herron,  who  was  a  daughter  of  Mrs. 
Edmnndson,  the  decedent.    Three  thousand  six  hundred 


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432  EDMUNDSON'S  ESTATE. 

Opinion  of  the  Court.  [250  Pa. 

dollars  of  the  purchase-money  was  borrowed  on  a  build- 
ing and  loan  association  mortgage  for  that  amount  on 
which  payments  of  principal  and  interest  were  made  at 
various  times  by  Mr.  Herron  until  July^  1894.  In  that 
year  Mr.  and  Mrs.  Herron  were  divorced,  and  in  the 
autumn  of  1895  Mrs.  Herron  was  married  to  Joseph 
Stadtfeld.  By  a  deed,  dated  November  16, 1895,  Mr.  and 
Mrs.  Stadtfeld  conveyed  the  house  and  lot  in  question  to 
Mrs.  Edmundson,  the  consideration  stated  being  f6,500, 
subject  to  liens  and  encumbrances. 

At  the  audit  of  the  account  filed  by  the  executor  of 
Mrs.  Edmundson,  Carrie  Herron,  now  Mrs.  Carrie  Cot- 
ton, daughter  of  Mrs.  Carrie  E.  Herron,  presented  for 
allowance  a  claim  for  |3,333.01  alleged  to  be  due  her  on 
an  oral  contract  made  by  the  decedent  in  1895  with  Mrs. 
Carrie  E.  Herron,  the  mother  of  the  claimant  It  is  al- 
leged that  in  the  autumn  of  1895  Mrs.  Edmundson 
agreed  to  take  title  to  the  property  in  question  under  an 
express  agreement  made  with  Mrs.  Herron  that  Carrie 
Herron,  then  her  infant  daughter,  should  receive  all  that 
the  latter's  father,  J.  A.  Herron,  had  put  into  the  property 
in  case  of  a  sale  by  Mrs.  Edmundson  during  her  lifetime, 
or  if  the  property  was  not  sold  by  Mrs.  Edmundson  she 
would  leave  to  Carrie  Herron  the  full  amount  invested 
therein  by  Mr.  Herron  at  her  death.  With  this  under- 
standing and  agreement,  it  is  claimed  that  Mrs.  Stadtfeld 
and  her  husband  executed  and  delivered  the  deed  for  the 
property,  subject  to  the  unpaid  balance  of  the  mortgage, 
to  Mrs.  Edmundson.  While  this  deed  recites  a  consider- 
ation of  f6,500,  it  is  contended,  and  the  evidence  shows, 
that  Mrs.  Edmundson  paid  nothing  to  the  grantors  or  to 
Mr.  Herron  for  the  property.  Mrs.  Edmundson  did  not 
sell  the  real  estate,  and  at  her  death  bequeathed  |1,000 
to  Mrs.  Cotton. 

The  childl*en  of  Mrs.  Edmundson  deny  that  she  ever 
iBntered  into  a  contract  to  pay  or  give  Mrs.  Cotton  any 
sum  whatever  during  her  life  or  at  her  death,  or  that 
she  ever  made  any  arrangement  or  agreement  with  the 


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EDMUNDSON'S  ESTATE.  433 

1918.]  Opinion  of  the  Court 

Btadtfelds  as  to  the  disposition  of  the  property  or  its 
proceeds.  On  the  contrary,  they  claim  that  at  the  time 
of  the  execution  and  delivery  of  the  deed  there  was  a  de- 
fault in  payment  of  the  money  due  on  the  mortgage,  and 
the  property  was  conveyed  to  Mrs.  Edmundson  by  the 
grantors  to  prevent  foreclosure  proceedings. 

The  claim  was  allowed  by  the  auditing  judge,  less  the 
amount  of  the  legacy  of  f  1,000  to  Mrs.  Cotton.  Excep- 
tions filed  by  parties  interested  under  Mrs.  Edmundson's 
will  were  dismissed,  and  exceptants  have  appealed  as- 
signing as  error  the  overruling  of  the  exceptions,  the  de- 
cree of  distribution  and  the  allowance  of  the  claim,  and 
the  admission  of  the  testimony  of  Mrs.  Stadtfeld. 

The  questions  raised  by  the  assignments  of  error  are : 
(a)  The  right  of  the  claimant  to  recover  on  the  contract, 
she  not  being  a  party  thereto  or  to  the  consideration, 
and  having  no  beneficial  interest  in  the  property  trans- 
ferred; (b)  the  competency  of  the  mother  of  the  claim- 
ant as  a  witness  to  prove  the  oral  contract;  and  (c)  the 
sufficiency  of  the  evidence  to  sustain  the  claim. 

We  think  Carrie  Herron,  now  Mrs.  Cotton,  can  enforce, 
by  an  action  or  proceeding  instituted  in  her  own  name, 
the  contract  made  by  her  mother  with  the  decedent  for 
the  benefit  of  the  claimant.  In  Howes  v.  Scott,  224  Pa.  7, 
10,  it  is  said :  ^^At  common  law  no  one  could  maintain 
an  action  upon  a  contract  to  which  he  was  not  a  party. 
This  rule  is  well  established  in  this  country,  and  it  is 
recognized  by  both  state  and  federal  courts.  There  are, 
however,  exceptions  to  the  rule  which,  in  this  State,  are 
as  well  settled  as  the  rule  itself.  For  nearly  three-quar- 
ters of  a  century,  since  the  decision  in  Blymire  v.  Boistle, 
6  Watts  182,  the  decisions  of  this  court  have  uniformly 
recognized  and  enforced  the  exceptions  whenever  the 
facts  of  a  case  required  it.''  In  Adams  v.  Kuehn,  119 
Pa.  76,  85,  Mr.  Justice  Wdxiams,  delivering  the  opinion, 
says :  ^'Where  one  person  enters  into  a  contract  with  an- 
other to  pay  money  to  a  third,  or  to  deliver  some  valuable 
thing,  and  such  third  party  is  the  only  party  intereste4 
Vol.  cclix— 28 


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434  EDMUNDSON'S  ESTATE. 

Opinion  of  the  Court.  [259  Pa. 

im  the  payment  or  the  delivery,  he  can  release  the  prom- 
isor from  performance  or  compel  performance  by  suit.*' 
He  then  notes  some  of  the  exceptions  to  the  general  rule 
at  common  law  that  a  person  could  not  maintain  an 
action  upon  a  contract  to  which  he  was  not  a  party,  as 
follows:  **Among  the  exceptions,  are  cases  where  the 
promise  to  pay  the  debt  of  a  third  person  rests  upon  the 
fact  that  money  or  property  is  placed  in  the  hands  of  the 
promisor  for  that  particular  purpose.  Also  where  one 
buys  out  the  stock  of  a  tradesman  and  undertakes  to  take 
the  place,  fill  the  contracts,  and  pay  the  debts  of  his  ven- 
dor. These  cases  as  well  as  the  case  of  one  who  receives 
money  or  property  on  the  promise  to  pay  or  deliver  to  a 
third  person,  are  cases  in  which  the  third  person,  al- 
though not  a  party  to  the  contract,  may  be  fairly  said  to 
be  a  party  to  the  consideration  on  which  it  rests.  In 
good  conscience  the  title  to  the  money  or  thing  which  is 
the  consideration  of  the  promise  passes  to  the  beneficiary, 
and  the  promisor  is  turned  in  eflfect  into  a  trustee.  But 
when  the  promise  is  made  to,  and  in  relief  of  one  to  whom 
the  promise  is  made,  upon  a  consideration  moving  from 
him,  no  particular  fund  or  means  of  payment  being 
placed  in  the  hands  of  the  promisor  out  of  which  the  pay- 
ment is  to  be  made,  there  is  no  trust  arising  in  the  prom- 
isor and  no  title  passing  to  the  third  person.  The  bene- 
ficiary is  not  the  original  creditor  who  is  a  stranger  to 
the  contract  and  the  consideration,  but  the  original 
debtor  who  is  a  party  to  both,  and  the  right  of  action  is 
in  him  alone." 

Mrs.  Edmundson  took  title  to  the  land,  as  the  court 
found,  under  an  oral  agreement  to  give  Mrs.  Cotton,  the 
claimant,  the  amount  of  money  invested  in  the  land  by 
the  claimant's  father  when  the  premises  might  be  sold 
or  at  the  grantee's  death.  The  premises  were  not  sold 
by  the  grantee,  nor  did  she  make  provision  by  her  will 
for  payment  of  this  claim.  It  is  clear,  therefore,  that 
she  failed  to  comply  with  the  contract  on  her  part.  The 
claimant  was  not  a  party  to  the  contract,  and  had  no 


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EDMDNDSON  'S  ESTATE.  435 

1918.]  Opinion  of  tlie  Court 

beneficial  intereBt  in  the  property  conveyed  by  her  moth- 
er to  the  decedent^  but  she  is  the  only  party  beneficially 
interested  in  enforcing  the  claim  secured  by  it.  Mrs. 
Herron^  the  grantor^  has  no  interest  in  the  claim.  The 
deed  is  absolute  and  conveys  the  property  to  the  decedent 
without  any  conditions  imposed  for  the  payment  of  any 
sum  whatever  to  her.  The  promise  contained  in  the 
agreement  was  not  in  consideration  of  the  payment  of 
an  existing  indebtedness  due  Mrs.  Herron^  the  promisee, 
and,  therefore,  could  not  be  released  or  enforced  by  her. 
This  proceeding  is  on  the  oral  contract  to  compel  pay- 
ment to  the  party  beneficially  interested  by  its  terms,  and 
not  to  enforce  any  covenant  or  condition  in  the  deed  in 
favor  of  the  grantors  or  promisees  therein.  Being  the 
only  person  beneficially  interested  in  the  payment  of  the 
money  secured  thereby,  the  claimant  can  release  the 
promisor's  estate  from  performance,  or  compel  perform- 
ance of  the  terms  of  the  contract  by  suit.  While  the  deed 
showed  the  payment  of  a  consideration  of  |5,500,  there 
was,  in  fact,  nothing  whatever  paid  or  agreed  to  be  paid 
by  the  decedent  to  the  grantors  for  the  transfer  of  the 
property.  This  was  shown  by  parol  evidence  which  was 
competent  for  the  purpose :  Sargeant  v.  Nat'l  Life  Insur- 
ance Co.  of  Vermont,  189  Pa.  341,  346.  We  think  the 
facts  of  this  case  bring  it  within  the  doctrine  of  our 
decisions,  and  that  the  claimant  can  recover  in  an  action 
or  proceeding  instituted  by  her  against  the  estate  of  the 
decedent. 

In  Hoflfa  V.  Hoflfa,  38  Pa.  Superior  Ct.  356,  the  learned 
Superior  Court  applied  the  same  doctrine  and  held  that 
the  person  beneficially  interested  could  maintain  an 
action  on  the  contract.  There,  one  brother  conveyed  a 
farm  to  another  for  the  consideration  of  |1  named  in  the 
deed,  and  the  grantee  agreed  to  pay  another  brother  and 
sister  |1,000  each.  The  farm  was  in  fact  worth  |3,000. 
It  was  held  that  the  brother  and  sister  could  maintain  a 
suit  against  the  grantee^s  administrator  for  the  money 
which  the  grantee  had  promised  his  brother  to  pay  them, 


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436  EDMITNDSON'S  ESTATE, 

Opinion  of  the  Court.  [259  Pa, 

and  that  the  declarations  of  the  grantee  were  admissible 
in  evidence  and  constituted  sufficient  proof  of  the  con- 
tract. The  learned  counsel  for  the  appellants  concede 
that  the  present  case  seeius  to  be  on  all  fours  with  the 
Hoffa  case,  but  claim  that  the  latter  case  is  distinguisheil 
by  the  fact  that  the  deed  showed  a  nouiinal  consider- 
ation. As  already  pointed  out,  it  was  shown,  and  in  fact 
was  not  denied,  that,  while  a  substantial  consideration 
was  named  in  the  deed  eouveying  the  property  to  the  de- 
cedent, no  consideration  passed  to  Mr.  Herron  or  to  the 
grantors  from  the  grantee. 

The  claimant  called  as  witnesses,  in  support  of  her 
claim,  her  father,  J.  A.  Herron,  her  mother,  and  her 
mother's  second  husband,  Mr.  Stadtfeld.  The  appel- 
lants objected  to  the  competency  of  Mr.  and  Mrs.  Stadt- 
feld,  but  error  is  assigned  to  the  admission  of  the  testi- 
mony of  Mrs.  Stadtfeld  only.  They  contend  that  the 
witness  was  incompetent  on  the  ground  that  she  is  the 
surviving  and  remaining  party  to  the  contract,  and, 
therefore,  directly  within  the  words  of  clause  "e,"  sec« 
tion  5  of  the  Act  of  May  23, 1887,  P.  L.  158.  This  fact  in 
itself  is  not  sufficient  to  disqualify  a  witness.  He  must 
be  not  only  a  ^'remaining  party"  to  the  contract  but  must 
also  have  an  interest  adverse  to  the  party  against  whom 
he  is  called  to  testify.  This  clause  provides  that  where 
any  party  to  a  thing  or  contract  in  action  is  dead  and  his 
right  thereto  or  therein  has  passed,  either  by  his  own  act 
or  by  the  act  of  the  law,  to  a  party  on  the  record  who  rep- 
resents his  interest  in  the  subject  in  controversy,  no  sur- 
viving or  remaining  party  to  such  thing  or  contract,  or 
any  other  person  whose  interest  shall  be  adverse  to  the 
said  right  of  such  deceased,  shall  be  a  competent  witness 
to  anything  occurring  before  the  death  of  said  party.  It 
will  be  observed  that  to  disqualify  a  witness  under  this 
clause  he  must  not  only  be  a  surviving  and  remaining 
party  to  the  thing  or  contract  in  action,  but  he  must  have 
an  interest  adverse  to  the  right  of  the  deceased  party. 
This  is  clearly  the  correct  interpretation  of  the  clause, 


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EDMUNDSOX^S  ESTATE.  437 

1918J  Opiiiiou  of  the  Court. 

and  we  have  so  held :  Dicksou  v,  McGraw  Bros.,  151  Pa. 
98;  First  National  Bank  of  Bloomsburg  v.  Gerli,  225 
Pa.  256.  The  disqualification  is  made  to  depend  not  only 
on  the  fact  of  being  a  remaining  party  but  also  of  having 
an  adverse  interest:  Dickson  v.  McGraw,  supra;  and 
it  is  the  adverse  interest  and  not  the  adverse  testimony 
that  disqualifies  a  witness :  Home  &  Co.  v.  Petty,  192 
P^.  32.  This  claim  is  based  on  the  parol  contract  and  is 
made  by  Mrs.  Cotton  against  the  decedent's  estate,  and 
Mrs.  Stadtfeld  can  have  no  interest  in  having  it  sus- 
tained. She  is  not  a  party  to  the  litigation  nor  inter- 
ested in  sustaining  the  claim.  Her  interest  is,  therefore, 
not  adverse  to  the  estate.  On  the  contrary,  her  inter- 
est is  adverse  to  the  claim  if  she  be  a  residuary  leg- 
atee, and  if  it  be  allowed  and  paid  it  cannot  increase  but 
will  reduce  her  share  in  her  mother's  estate.  It  being 
apparent,  therefore,  that  Mrs.  Stadtfeld  had  no  interest 
in  the  claim  and,  hence,  no  interest  adverse  to  the  estate 
of  the  decedent,  we  think  she  was  a  competent  witness 
for  the  claimant. 

The  evidence  is  amply  sufficient,  if  believed,  to  es- 
tablish the  oral  contract  and  sustain  the  claim.  Mrs. 
Stadtfeld's  testimony  is  clear  and  explicit  as  to  the 
terms  of  the  agreement  by  which  the  decedent  agreed  to 
give  Mrs.  Cotton  the  sum  paid  by  Mr.  Herron  on  the 
purchase-price  of  the  property.  She  says  that  the  con- 
veyance was  made  without  any  consideration  passing  to 
the  grantors,  and  because  Mr.  Stadtfeld  objected  to  her 
retaining  any  property  acquired  from  her  former  hus- 
band. The  purpose,  therefore,  of  divesting  herself  of  the 
title  to  the  premises  was  to  secure  to  her  daughter  the 
amount  of  money  which  Mr.  Herron  paid  on  the  purchase- 
price.  She  further  testified  that  her  mother  had  fre- 
quently assured  her  that  she  would  stand  by  the  promise 
she  made  when  the  property  was  conveyed  to  her.  Mr. 
Stadtfeld  corroborated  his  wife's  testimony  as  to  the 
purpose  of  disposing  of  the  property  and  as  to  the  re- 
peated assurance  of  the  decedent  to  abide  by  her  promise. 


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438  EDMUNDSON'S  ESTATE. 

Opiniou  of  the  Court.  [259' Pa. 

Mr.  Herron  testifies  that  in  the  summer  or  fall  of  1895 
the  decedent  discussed  with  him  the  taking  over  of  this 
property  by  her,  and  she  repeatedly  assured  him  that  if 
she  did  take  it  over  her  granddaughter,  Mrs.  Cotton, 
should  have  everything  that  Mr.  Herron  put  into  it,  and 
that  in  case  of  her  death  she  would  leave  the  house  to 
the  child  or  leave  her  the  equivalent  of  the  amount  he 
had  put  into  it. 

Three  sons  and  a  daughter  of  the  decedent  were  called 
to  testify  against  the  claim,  but  their  testimony  is 
simply  to  the  effect  that  they  did  not  hear  their  mother 
make  the  promise  or  reaffirm  it,  and  did  not  hear  of  the 
claim  until  shortly  before  their  molher^s  death.  There 
was  no  substantial  contradiction  of  the  testimony  intro- 
duced by  the  claimant,  and,  hence,  the  learned  auditing 
judge  very  properly  found  that  "the  evidence  by  which 
the  claim  is  established  is  uncontradicted.'' 

It  is  claimed  by  the  appellant  that  the  decree  is  exces- 
sive in  amount  The  auditing  judge,  however,  found  that 
the  amount  invested  in  the  property  in  cash  by  the  claim- 
ant's father  was  f3,333.01,  and,  on  an  exception  filed,  this 
finding  was  sustained  by  the  court  in  banc.  Such  clear 
and  manifest  error  in  the  court's  conclusion  has  not  been 
pointed  out  as  would  justify  us  in  reversing  the  decree 
on  this  ground. 

The  other  questions  ai^ed  by  the  appellant  are  not 
in  the  case  and  do  not  require  consideration. 

The  decree  is  affirmed. 


Beyer  v.  Pennsylvania  Bailroad  Company, 
Appellant. 

Negligence — Railroads — Locomotive  whistle — Deafening  of  fire- 
fnan  on  locomotive  on  next  irach— -Interstate  commerce — Federal 
JSmphuef^s  Ltahility  Act — FeUoW'Servant  rule—Failure  to  warn  of 
blowing  of  whistle — Comm>on  "knowledge — Evidence — Custom  4o 
vwm — Admissibility^. 


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ROYER  V.  PBNNA.  B.  B.  CO.,  Appellant.  439 

1918.]  Syllabus—Statement  of  Facts. 

1.  When  a  locomotive  fireman,  employed  by  a  railroad  con^umy 
on  an  engine  engaged  in  drawing  a  train  in  interstate  commerce, 
is  injured,  the  Federal  law  governs  and  the  fellow-servant  rule  is 
not  applicable. 

2.  Where  in  an  action  by  a  locomotive  fireman  against  a  railroad 
company,  engaged  in  interstate  commerce,  by  which  plaintiff  had 
been  employed,  to  recover  for  injuries  to  his  hearing  caused  by 
the  blowing  of  the  whistle  of  another  locomotive  standing  upon  an 
adjoining  track  and  within  ten  feet  of  plaintiff,  it  appeared  that 
suddenly  and  without  warning  two  loud  shrill  blasts  were  emitted 
from  the  whistle,  and  that  plaintiff  immediately  iAi  a  pain  in  his 
ear,  and  thereafter  became  totally  deaf  in  such  ear,  but  where  there 
was  no  evidence  to  justify  a  finding  that  the  experience  or  knowl* 
edge  which  an  engineer  might  be  expected  to  have  should  have 
warned  the  engineer  who  blew  the  whistle  that  he  should  first  give 
notice  to  the  plaintiff,  the  jury  were  not  warranted  in  finding  that 
defendant  or  its  servants  had  reason  to  anticipate  that  the  blowing 
of  the  whistle  was  likely  to  affect  plaintiff  injuriously,  and  a  ver- 
dict for  the  plaintiff  could  not  be  sustained. 

3.  The  effect  upon  bystanders  of  the  blowing  of  a  locomotive 
whistle,  under  such  circumstances,  is  hardly  a  matter  of  common 
knowledge,  and  it  must  therefore  be  shown  by  evidence. 

4.  Where  in  such  case  it  appeared  that  plaintiff  offered  to  prove 
that  it  was  customary  to  give  warning  to  i>ersons  working  within 
a  distance  of  ten  or  fifteen  feet  of  the  whistle  of  an  engine  standing 
in  the  yard,  before  the  whistle  was  blown,  and  that  it  was  the  g^i- 
eral  custom  for  those  in  charge  of  such  an  engine  to  look  about  for 
persons  in  close  proximity  to  the  engine  whistle  and  to  warn  them 
that  the  whistle  was  about  to  be  blown,  the  refusal  of  such  offer  on 
the  part  of  the  trial  judge  wasf  error,  and  on  appeal  by  the  defend- 
ant from  the  judgment  entered  in  favor  of  the  plaintiff,  the  Su- 
preme Court  will  not  enter  judgment  for  defendant  n.  o.  v.  but 
must  grant  a  new  trial. 

Argued  Oct.  12, 1917.  Appeal,  No.  131,  Oct  T.,  1917, 
by  defendant,  from  judgment  of  G.  P.  Allegheny  Co., 
July  T.,  1916,  No.  342,  on  verdict  for  plaintiff  in  case  of 
John  M.  Boyer  v.  PenuBylyania  Railroad  Company.  Be- 
fore Mbstbbzat,  Pottbr,  Stbwast,  Mosghziskbb  and 
Waluno,  JJ.    Beversed. 

Trespaas  for  personal  injuries.    Before  Gabnahan,  J. 
The  opinion  of  the  Supreme  Court  states  the  case. 


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440        ROYER  v.  PENNA.  R.  R.  CO.,  Appellant. 

Verdict — Opinion  of  the  Court.  [259  Pa. 

Verdict  for  plaintiff  for  |5^000  and  judgment  thweon. 
Defendant  appealed. 

Error  assigned,  among  others^  was  in  refusing  defend- 
ant's motion  for  judgment  non  obstante  veredicto. 

J.  R.  Miller,  and  Thomas  Patterson,  of  Patterson, 
Crawford  <€  Miller,  for  appellant. — There  was  not  suf- 
ficient evidence  of  negligence  on  the  part  of  the  defend- 
ant: Snyder  v.  Penna.  R.  R.  Co.,  239  Pa.  127;  Chittick 
V.  P.  R.  T.  Co.,  224  Pa.  13 ;  Fox  v.  Borkey,  126  Pa,  164. 

T.  M.  Oealey  and  A.  J.  Eckles,  for  appellee. — Defend- 
ant  was  guilty  of  negligence  under  the  circumstances 
Chesapeake  &  Ohio  Railway  Co.  v.  DeAtley,  241  U.  S 
Rep.  310;  Valjago  v.  Carnegie  Steel  Co.,  226  Pa.  514 
Hess  V.  American  Pipe  Manufacturing  Co.,  221  Pa.  67 
Ewing  V.  Pittsburgh,  C.  &  St.  L.  Ry.  Co.,  147  Pa.  40; 
Applebaum  v.  P.  R.  T.  Co.,  244  Pa.  82. 

The  testimony  of  plaintiff's  witnesses  show  that  ear 
drums  are  frequently  injured  from  pressure  caused  by 
the  blowing  of  steam  whistles:  McFadden  v.  City  of 
Philadelphia,  248  Pa.  83 ;  Stewart  v.  Central  R.  R.  Co.  of 
New  Jersey,  235  Pa.  311 ;  Snyder  v.  Pennsylvania  R.  R. 
Co.,  239  Pa.  127. 

Opinion  by  Mb.  Justicb  Pottbb,  January  7, 1918 : 
The  plaintiff  brought  this  action  of  trespass  to  recover 
damages  for  injuries  resulting,  as  he  claimed,  from  the 
negligence  of  an  employee  of  defendant  company.  He 
was  employed  as  a  locomotive  fireman,  upon  an  engine 
drawing  a  train  engaged  in  interstate  commerce,  so  that 
the  case  is  governed  by  Federal  law,  and  the  fellow- 
jiervaut  rule  does  not  apply.  The  contention  of  the  plain- 
tiff is  that,  on  April  24, 1914,  his  engine  had  stopped  at  a 
yard,  en  route,  and  was  being  supplied  with  water.  He 
was  at  the  time  standing  upon  the  tender  holding  the 
arm  of  a  water  spout.    Another  locomotive  stood  upon 


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ROYER  r.  PENNA.  R.  R.  CO,  Appellant.  441 

1918.]  Opinion  of  the  Court. 

the  adjoining  track,  the  whistle  being  some  ten  feet  from 
him.  Suddenly  and  without  warning  there  was  emit- 
ted from  the  whistle  of  the  adjacent  locomotive,  two 
loud,  shrill  blasts.  He  says  he  was  shocked  and  startled, 
and  immediately  felt  a  pain  in  his  ear,  and  that,  after 
finishing  the  run  for  the  day,  he  did  not  again  return  to 
the  service  of  defendant,  owing  to  the  condition  of  his 
ear,  and  the  necessity  for  medical  treatment.  He  claims 
that  his  injury  was  due  to  the  loud  blasts  of  the  whistle 
emitted  close  to  his  ear,  without  previous  warning,  and 
that  the  injury  has  resulted  in  complete  loss  of  hearing 
in  one  ear. 

The  trial  judge  left  to  the  determination  of  the  jury 
the  question  whether,  when  the  engineer  blew  the  whis- 
tle, he  should,  as  a  man  of  reasonable  prudence,  have 
anticipated  the  danger  of  injury  to  the  plaintiff,  who  was- 
in  rather  close  proximity  to  the  whistle,  and  should, 
therefore,  have  given  him  warning  before  it  was  blown. 
The  verdict  of  the  jury  must  be  accepted  as  a  finding  that 
under  the  circumstances,  danger  of  injury  to  the  plaintiff 
from  the  blowing  of  the  whistle  was  reasonably  to  have 
been  anticipated,  and  that  the  engineer  was  guilty  of 
negligence  in  failing  to  warn  plaintiff  before  blowing  the 
whistle.  From  the  judgment  entered  upon  the  verdict, 
defendant  has  appealed,  and  the  question  is,  whether  the 
verdict  was  justified  by  the  evidence. 

Admittedly, the  question,  whether  plaintiff  was  injured 
as  claimed,  was  for  the  jury ;  but  counsel  for  appellant 
urge  that  there  was  no  evidence  which  justified  a  find- 
ing that  the  experience  or  knowledge,  which  an  engineer 
might  be  expected  to  have,  should  have  warned  him  not 
to  blow  his  whistle  without  first  giving  notice  to  the 
plaintiff.  As  the  record  stands,  we  think  this  point  is 
well  taken.  In  the  evidence  which  was  admitted,  we  can 
find  nothing  from  which  the  jury  were  warranted  in 
finding  that  defendant  or  its  servants  had  reason  to  an- 
ticipate that  blowing  the  whistle  as  alleged  by  plaintiff, 
at  a  distance  of  ten  feet  from  where  he  was  standing,  was 


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442        ROYER  v.  PENNA.  R  R.  CO.,  AppeUant. 

Opinion  of  the  Court.  [259  Pa. 

likely  to  affect  him  injuriously.  The  effect  upon  bystand- 
ers of  the  blowing  of  a  locomotive  whistle,  under  such 
circumstances,  is  hardly  a  matter  of  common  knowledge, 
and  it  should,  therefore,  have  been  shown  by  evidence. 
The  record  shows,  however,  that  there  was  an  offer  of 
evidence,  upon  the  part  of  plaintiff,  to  prove  that  it  is 
customary  to  give  warning  to  persons  working  within  a 
distance  of  ten  or  fifteen  feet  of  the  whistle  of  an  engine 
standing  in  a  yard,  as  was  this  one,  before  the  whistle  is 
blown,  and  that  it  is  the  general  custom  for  those  in 
charge  of  such  an  engine  to  look  out  for  persons  in  close 
proximity  to  engine  whistles,  and  warn  them  that  the 
whistle  is  about  to  be  blown.  This  offer  of  evidence  was 
excluded,  upon  the  objection  of  counsel  for  defendant. 
If  such  a  custom  exists,  it  may  fairly  be  inferred  that  it 
is  based  upon  experience  which  has  shown  the  danger 
of  injury  to  bystanders  from  the  blast  of  a  whistle.  Had 
the  offer  been  admitted,  and  had  the  testimony  come  up 
to  the  terms  of  the  offer,  it  might  well  have  justified  the 
jury  in  inferring  that  the  engineer  should  have  antici- 
pated danger  to  plaintiff  from  blowing  the  whistle  with- 
out warning,  when  plaintiff  was  in  such  close  proximity 
to  it;  and  that  it  was  unusual  for  a  locomotive  whistle 
to  be  blown  under  such  circumstances  without  warning. 
Counsel  for  defendant  are  not  in  a  position  to  press  an 
advantage  arising  out  of  a  lack  of  evidence  upon  the  part 
of  plaintiff,  when  such  evidence  was  improperly  exclud- 
ed upon  their  own  objection.  If  the  plaintiff  were  here 
upon  appeal,  alleging  error  in  the  exclusion  of  the  testi- 
mony offered  in  this  respect  in  his  behalf,  it  would  be 
necessary  to  sustain  his  appeal. 

Upon  the  record  as  it  stands,  the  judgment  is  reversed 
with  a  venire  facias  de  novo. 


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KRENN,Appel,i;.  PITTSBURGH, a, C.&  ST.L.RY.CO.  443 
1918.]  Syllabus— Statemeut  of  Facts. 


Er^in^  Appellant,  v.  Pittsburgh,  Cincinnati,  Chi- 
cago &  St.  Louis  Railway  Company, 

Negligfinee — Eailroach — Orade  crossing — Pedestrian — Deafness 
^-Degree  of  care — Deaih — Presumption  of  care — Rebuttal  of  pre* 
sumption — Contributory  negligence  —  Evidence  —  Rebuttal  —  Ab» 
sence  of  lights  on  engine — Engine  visible — Harmless  error — Di- 
rected  verdict  for  defendant, 

1.  Where  a  pedestrian  is  deaf  a  higher  degree  of  care  is  imposed 
upon  him  at  a  railroad  grade  crossing. 

2.  When  a  pedestrian  walks  in  front  of  a  moving  train,  in  spite 
of  the  information  afforded  by  his  eyes  and  ears  and  is  immediately 
struck,  he  is  guilty  of  contributory  negligence. 

8.  It  is  a  traveler's  duty  to  keep  a  lookout  while  crossing  railroad 
tracks  as  well  as  to  stop  before  attempting  to  cross. 

4.  In  an  action  against  a  railroad  company  to  recover  damages 
for  death  of  plaintiff's  husband,  occasioned  by  his  being  struck  by 
a  locomotive  at  a  grade  crossing,  a  verdict  was  properly  directed 
for  defendant  where  it  appeared  that  at  the  crossing  in  question 
there  was  a  single  track  line  with  a  switch  on  the  near  side ;  that 
plaintiff  stopped,  apparently  to  lock  and  listen  just  before  crossing 
the  switch  track,  that  no  bell  or  whistle  was  sounded  but  that  the 
evening  was  clear  and  deceased  could  have  seen  the  engine  in  time 
had  he  looked;  and  that  deceased  was  struck  immediately  after 
stepping  upon  the  track. 

6.  In  such  case,  where  defendant's  evidence  was  that, the  head- 
light and  other  lights  on  the  engine  were  burning,  the  court  im- 
properly excluded  evidence  in  rebuttal  to  show  that  there  was  no 
headlight  on  the  engine,  on  the  ground  that  such  evidence  should 
have  been  presented  as  part  of  plaintiff's  case  in  chief;  but  where 
it  appeared  that  the  engine  was  clearly  visible  as  it  approached  the 
crossing,  such  evidence  could  not  have  changed  the  result  and  its 
rejection  was  harmless. 

Argued  Oct.  12, 1917.  Appeal,  No.  136,  Oct.  T.,  1917, 
by  plaintifF,  from  judgment  of  C.  P.  Allegheny  Co.,  Oct. 
T.,  1917,  No.  1527,  on  directed  verdict  in  case  of  Mary 
Erenn  v.  Pittsburgh,  Cincinnati,  Chicago  &  St.  Louis 
Bailway  Company,  a  Corporation.  Before  Mbstbbzat, 
PoTTBB,  Stbwabt,  Mosohziskbb  and  Waluno,  JJ.  Af- 
firmed. 


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Ui  KRENx\,Appel.,r.  PITTSBURGH, C.,C.&  ST.L.RY.CO. 

Statement  of  Facts — Opinion  of  the  Court.      [250  Pa. 

Trespass    for    personal    injuries.    Before    Macfae- 

LANB,  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court 
The  trial  judge  directed  a  verdict  for  defendant  upon 

which  judgment  was  entered.     PlaintiflE  appealed. 

Error  assigned,  among  others,  was  in  directing  verdict 
for  defendant. 

George  P.  Uenning,  for  appellant. — The  case  was  for 
the  jury:  Pennsylvania  R.  R.  Co.  v.  Oarvey,  108  Pa 
369;  Bard  v.  Philadelphia  &  Reading  Ry.  Co.,  199  Pa 
94;  Arnold  v.  Philadelphia  &  Reading  R.  R.,  161  Pa.  1: 
Armstrong  v.  Pennsylvania  R.  R.  Co.,  212  Pa.  228 
Toban  v.  Lehigh  &  Wilkes-Barre  Coal  Co.,  24  Pa.  8u 
perior  Ct.  475 ;  Cromley  v.  Pennsylvania  R.  R.  Co.,  208 
Pa.  445. 

W.  S.  Dalzell,  of  Dalzell,  Fisher  d  Hawkins,  for  ap- 
pellee.— The  doctrine  that  a  person  losing  his  life  must 
be  presumed  to  have  exercised  due  care  has  no  applica- 
tion where  the  evidence  shows  affirmatively  all  the  cir- 
cumstances of  the  accident.  There  can  be  no  presump- 
tion as  against  facts  which  are  proven :  Bernstein  v.  P. 
R.  R.  Co.;  252  Pa.  581. 

Evidence  that  defendant's  locomotive  had  passed  over 
the  crossing  without  lights  should  have  been  presented 
in  plaiutitl's  case  in  chief,  and  not  having  been  so  pre- 
sented was  not  admissible  in  rebuttal :  Crane  v.  P.  R.  R. 
Co.,  218  Pa.  500;  Stetson  v.  Croskey,  52  Pa.  230;  Acklin 
V.  McCalmont  Oil  Co.,  201  Pa.  257. 

Plaintiff  having  been  struck  contemporaneously  with  • 
placing  his  foot  on  the  rail,  he  was  guilty  of  contributory 
negligence  as  a  matter  of  law. 

Opinion  by  Mb.  Justice  Walling,  January  7,  1918: 

This  is  an  action  of  negligence  for  injuries  sustained 

at  a  public  grade  crossing.     The  street  in  question 


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KRENN,App€l.,i'.  PITTSBUBGH,C.,C.&  ST.L.RY.CO.  445 
1918.]  Opinion  of  the  Court, 

crosses  the  railway  a  short  distance  east  of  Traveskyn 
station  in  Allegheny  County.  There  the  railway  ex- 
tends in  an  easterly  and  westerly  direction  and  consists 
of  a  single  main  track,  on  the  south  side  of  which  is  a 
switch.  The  track  is  straight  for  several  hundred  feet 
east  and  then  bends  to  the  north.  One,  at  or  anywhere 
within  forty  feet  south  of  the  track,  can  see  a  train  ap- 
proaching fi*om  the  east  for  nine  hundred  feet.  On  the 
evening  of  August  24,  1916,  as  John  Krenn,  plaintiff's 
husband,  reached  the  first  rail  of  the  main  track,  walking 
north  in  the  street,  he  was  struck  and  killed  by  a  west 
bound  engine  thereon.  Plaintiff's  evidence  tended  to 
show  that  he  stopped,  apparently  to  look  and  listen,  just 
before  crossing  the  switch  track.  The  engine  had  a  ca- 
boose attached  and  there  was  some  evidence  on  behalf 
of  plaintiff  that  it  was  going  at  high  speed  and  that  the 
crossing  whistle  was  not  blown.  Defendant's  evidence 
fixed  the  speed  from  twelve  to  fifteen  miles  an  hour  and 
was  to  the  effect  that  timely  warning  was  given  both  by 
bell  and  whistle,  and  that  the  headlight  and  other  lights 
on  the  engine  were  burning.  In  rebuttal,  plaintiff  made 
an  offer  tending  to  prove  that  there  was  no  headlight  on 
the  engine,  but  this  was  excluded  as  being  part  of  the 
case  in  chief.  It  was  developed  by  witnesses  for  plain- 
tiff that  they  saw  and  heard  the  approaching  engine,  also 
saw  the  deceased  as  he  came  to  the  crossing,  and  some 
saw  the  collision.  The  undisputed  evidence  shows  that, 
while  it  was  in  the  evening,  the  conditions  were 
such  that  the  deceased,  had  he  looked,  could  have  seen 
the  engine  in  ample  time.  It  was  not  storming  and 
there  was  nothing  else  at  or  near  the  crossing  to  dis- 
tract Mr.  Krenn's  attention.  He  had  resided  near  there 
for  seven  years  and  was  entirely  familiar  with  the  situa- 
tion. The  court  below  directed  a  verdict  for  defendant 
on  the  ground  of  contributory  n^ligence,  from  which 
plaintiff  took  this  appeal. 

Deceased  was  struck  just  as  he  peached  the  main  track, 
in  other  words  he  and  the  engine  arrived  at  the  point  of 


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446  KRENN,Appcl.,t;.  PITTSBUBGH,C.,C.&  ST.L.RT.CO. 
Opinion  of  the  Court.  [259  Pa. 

contact  practically  at  the  same  instant.  Others  saw  the 
engine  at  a  considerable  distance^  and  it  is  inconceivable 
that  he  conld  not  had  he  looked  in  that  direction.  He 
was  somewhat  deaf  but  that  imposed  upon  him  a  higher 
degree  of  care:  Plynn  y.  Pittsburgh  Railways  Co.,  234 
Pa.  335.  The  law  is  settled  that  one  who  walks  in  front 
of  a  moving  train,  in  spite  of  the  information  afforded  by 
his  eyes  and  ears,  and  is  immediately  struck,  is  guilty 
of  contributory  negligence.  Mr.  Krenn  was  right  by  the 
track  where  he  had  a  better  opportunity  to  see  the  ap- 
proaching engine  than  plaintiff's  witnesses,  and  what 
they  saw  he  might  have  seen.  It  is  a  traveler's  duty  to 
keep  a  lookout  while  crossing  the  tracks  as  well  as  to 
stop  before  attempting  to  do  so.  A  verdict  for  plaintiff 
in  the  case  at  bar  could  not  be  sustained  on  the  theory 
that  the  deceased  was  unable  to  see  the  engine  in  time 
to  avoid  the  accident.  We  do  not  know  why  Mr.  Krenn 
stepped  in  front  of  the  engine,  but  a  presumption  that 
he  used  care  cannot  arise  under  the  evidence :  Bernstein 
V.  Penna.  R.  R.  CJo.,  252  Pa.  581.  In  our  opinion  on  the 
question  of  contributory  negligence  the  court  below  proi>- 
erly  directed  a  verdict  for  the  defendant. 

The  proposed  rebuttal  evidence  tending  to  show  that 
there  was  no  headlight  on  the  engine  might  properly  have 
been  admitted,  as  it  was  in  contradiction  to  that  sub- 
mitted for  the  defense,  and  was  pertinent  on  the  question 
of  contributory  negligence.  Yet  had  such  evidence  been 
received  it  could  not  have  changed  the  result,  as  under 
all  the  evidence  the  engine  was  clearly  visible  as  it  ap- 
proached the  crossing.  So  the  rejection  of  that  evidence 
did  plaintiff  no  harm. 

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


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JELIC  V.  JAMISON  C.  &  C.  Co.,  Appellant.       447 
1918.]  Syllabu8--Statement  of  Facts. 

Jelic  V.  Jamison  Goal  &  Coke  Company,  Appellant. 

Negligence — Master  and  servant — Mines  and  mining— Inexperi- 
enced minor — Striking  unexploded  charge  with  pick — Employer's 
duty  to  warn  of  danger — Instruction — Delegation — Custom — Fel- 
low servant — Case  for  jury. 

1.  Where  an  employer  delegates  an  older  and  experienced  fellow 
servant  of  an  inexperienced  employee  to  instruct  and  quali^  him 
for  service,  the  employer  is  liable  for  the  negligence  or  omission 
of  the  instructor,  if,  by  reason  of  it,  the  employee  suffers  injury. 
A  servant  delegated  to  instruct  the  employee  stands  for  this  purpose 
in  the  place  of  the  employer. 

2.  In  an  action  against  a  coal  mining  company  to  recover  for 
personal  injuries  sustained  by  a  minor  in  defendant's  employ  due 
to  the  failure  of  the  defendant  to  give  him  proper  instructions  as 
to  the  danger  to  which  he  might  be  subjected  from  unexploded 
charges  having  been  left  in  the  coal  where  he  was  directed  to  work, 
or  as  to  the  proper  method  of  avoiding  injury  from  such  unex- 
ploded shots,  the  case  is  for  the  jury  and  a  verdict  for  plaintiff 
will  be  sustained  where  it  appeared  that  prior  to  the  accident  plain- 
tiff had  been  employed  in  various  coal  mines  for  fourteen  months, 
but  with  a  limited  experience  in  the  use  of  explosives;  that  as  a 
rule  he  had  worked  with  experienced  miners,  but  on  the  morning 
of  the  accident  was  working  alone  digging  coal  when  he  stuck  his 
pick  into  the  coal  at  a  i>oint  five  or  six  inches  from  a  hole  and  an 
explosion  immediately  followed,  causing  the  injuries  complained 
of;  that  plaintiff  was  ignorant  of  the  danger  from  unexploded 
shots  in  the  coal,  and  had  never  been  warned  to  look  out  for  them 
or  instructed  as  to  the  proper  method  of  guarding  against  injury 
from  them,  although  the  testimony  tended  to  show  a  custom  to 
give  such  instruction. 

3.  In  such  case,  although  the  failure  to  report  the  existence  of 
the  unexploded  charges  was  due  to  the  negligence  of  another  miner, 
a  fellow  workman  of  the  plaintiff,  tibe  fellow-servant  rule  is  not 
applicable. 

Argued  Oct.  15, 1917.  Appeal,  No.  142,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Allegheny  Co.,  Oct. 
T.,  1916,  No.  78,  on  verdict  for  plaintiflf  in  case  of  Mike 
Jelic,  a  Minor,  otherwise  known  as  Check  No.  5,  by  his 
Brother  and  next  Friend,  Vincent  Jelic,  v.  Jamison  Coal 


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448        JELIC  V.  JAMISON  C.  &  C.  Co.,  Appellant. 

Verdict— Opinion  of  the  Court.  [369  Pa. 

&  Coke  Company,  a  Corporation.  Before  Brown,  C.  J,, 
PoTTBB,  MoscHZiSKBB,  Fbazbb  and  Walling,  JJ.  Af- 
firmed. 

Trespass  for  personal  injuries.     Before  Shafbr,  P.  J. 
The  facts  appear  by  the  opinion  of  the  Supreme  Court. 
Verdict  for  plaintiff  for  92,000  and  judgment  thereon. 
Defendant  appealed. 

EtTor  assigned f  among  others,  was  in  refusing  defend- 
ant's motion  for  judgment  non  obstante  veredicto. 

Robert  W.  Smith,  of  Moorhead  d  Smith,  with  him 
William  S.  Moorhead,  for  appellant. — A  master  is  not 
answerable,  as  a  rule,  for  an  injury  to  adults  with  ex- 
perience, nor  for  an  injury  to  young  persons  who  have 
had  experience  from  which  a  knowledge  of  danger  may 
reasonably  be  presumed  and  discretion  which  prompts 
one  to  take  care  of  himself.  Under  this  rule  plaintiff's 
fourteen  months'  experience  precludes  him  from  recov- 
ery :  Stitzel  v.  Wilhelm  Co.,  220  Pa.  564. 

The  proximate  cause  of  the  injury  was  the  negligence 
of  a  fellow  servant,  and  defendant  was  not  obliged,  in 
the  absence  of  actual  knowledge  of  the  existence  of  the 
particular  danger,  to  anticipate  that  the  fellow  servant 
of  the  plaintiff  would  be  negligent :  Crown  Cotton  Mills 
V.  McNally,  51  S.  E.  Repr.  13 ;  Klos  v.  Hudson  River  O. 
&  I.  Co.,  77  N.  Y.  App.  Div.  566 ;  Siddall  v.  Pacific  Mills, 
162  Mass.  379;  Fay  v.  Wilmarth  et  al.,  66  N.  E.  Repr. 
410 ;  Melchert  v.  Smith  Brewing  Company,  140  Pa.  448 ; 
Lewis  V.  Wood,  247  Pa.  545. 

The  danger  which  plaintiff  encountered  was  a  transi- 
tory danger  which  arose  during  the  progress  of  the  work 
and  with  respect  to  which  there  is  no  duty  of  instruc- 
tion: Miller  v.  American  Bridge  Co.,  216  Pa-  559;  Ed- 
dleman  v.  Pennsylvania  Co.,  223  Pa.  318. 

The  duty  of  instruction  of  the  particular  danger  in 
this  case,  if  such  duty  existed,  was  the  duty  of  the  mine 


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JELIC  V.  JAMISON  C.  &  C.  Co.,  Appellant.       449 
1918.]  Arguments — Opinion  of  the  Court. 

foreman,  and  for  his  neglect  the  defendant  is  not  liable: 
Bogdanovicz  v.  Susquehanna  Coal  Co.,  240  Pa.  124. 

T.  M.  Oealey,  with  him  A.  J.  Eckles,  for  appellee. — 
Plaintiff  was  about  fifteen  or  sixteen  years  of  age  and 
was  not  an  experienced  miner :  Long  v.  Greenough  Red 
Ash  Coal  Co.,  59  Pa.  Superior  Ct.  235. 

There  is  a  duty  upon  the  defendant  to  warn  plaintiff 
of  the  danger:  Standard  Oil  Co.  v.  Brown,  218  U.  S. 
Kep.  78;  Grace  &  Hyde  v.  Kennedy,  99  Fed.  Rep.  679; 
Blaisdell  v.  Davis  Paper  Co.,  77  Atl.  Repr.  485;  Hols- 
houser  v.  Denver  Gas  &  Electric  Co.,  72  Pac.  Repr.  289. 

The  duty  to  instruct  inexperienced  employees  is  an 
absolute  common  law  duty  resting  upon  the  employer, 
and  when  the  employer  seeks  exemption  from  such  duty 
he  must  point  to  some  express  statute  exempting  him 
from  such,  or  placing  that  duty  on  some  one  else;  the 
duty  to  instruct  was  not  that  of  the  mine  foreman: 
Reeder  v.  Lehigh  Valley  Coal  Co.,  231  Pa.  563 ;  Roszina 
V.  Howard  Gas  Coal  Co.,  251  Pa.  298;  Thorne  v.  Phila- 
delphia Rapid  Transit  Co.,  237  Pa.  20. 

Opinion  by  Me.  Justice  Pottbb,  January  7,  1918: 
In  this  action,  the  plaintiff,  a  coal  miner  formerly  in 
the  employ  of  the  defendant  company,  sought  to  recover 
damages  for  injuries  suffered  by  him,  resulting,  as  he  al< 
leged,  from  the  failure  of  the  defendant  to  give  him 
proper  instructions  as  to  the  danger  to  which  he  might 
be  subjected"  from  unexploded  charges  having  been  left 
in  the  coal  where  he  was  directed  to  work,  or  as  to  the 
proper  method  for  avoiding  injury  from  such  unex- 
ploded shots.  It  was  contended  upon  behalf  of  defend- 
ant, that,  under  the  facts  of  the  case,  it  was  under  no 
duty  to  give  him  such  instructions.  It  appears  from 
the  record  that,  prior  to  the  accident,  the  plaintiff  had 
been  employed  in  various  coal  mines  for  some  fourteen 
months,  but,  with  a  limited  experience  in  the  use  of  ex- 
plosives. He  testified  that  he  had  as  a  rule  worked  with 
experienced  miners,  but  on  the  morning  of  the  accident. 
Vol.  coux — 29 


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450       JBLIC  V.  JAMISON  C.  &  C.  Co.,  Appellant. 

Opinion  of  the  Court  [259  Pu. 

he  was  working  alone  digging  coal^  when  he  saw  a  hole 
in  the  face  of  the  coal,  about  three  feet  above  the  ground. 
He  stuck  his  pick  into  the  coal  at  a  point  some  five  or 
six  inches  f  roin  the  hole,  and  an  explosion  immediately 
followed,  inflicting  upon  him  severe  injury.  Plaintiff 
testified  that  he  was  ignorant  of  the  danger  of  injury 
from  unexploded  shots  in  the  coal,  and  had  never  been 
warned  to  look  out  for  them,  or  instructed  as  to  the 
proper  method  of  guarding  against  injury  from  them. 
Other  witnesses,  experienced  in  coal  mining,  testified  on 
his  behalf  that  an  unexploded  shot  or  charge  might  have 
been  left  in  the  hole  by  a  miner  who  had  previously  been 
working  in  the  same  room  and  that  this  charge  might 
have  been  exploded  by  the  blow  from  plaintiff's  pick. 
The  sufSciency  of  this  explanation,  as  to  the  cause  of  the 
accident,  was  not  seriously  questioned  by  defendant,  nor 
did  it  offer  testimony  which  threw  any  further  light 
upon  the  subject.  In  the  course  of  his  cross-examina- 
tion of  J.  D.  Humphries,  a  witness  for  plaintiff,  counsel 
for  defendant  brought  out,  by  a  leading  question,  the 
fact  that  it  is  the  universal  custom  with  all  mining  'com- 
panies to  instruct  miners,  when  they  charge  a  hole  that 
fails  to  go  off,  (which  rarely  happens),  to  put  up  a 
danger  board,  and  leave  that  working  place  at  once,  and 
report  the  condition  to  the  mine  foreman,  the  assistant 
mine  foreman,  or  the  first  boss.  Admittedly  no  such  in- 
struction was  given  to  plaintiff  by  the  defendant  in  this 
case.  It  is  true  that  the  failure  to  report  the  existence 
of  the  unexploded  charge  was  due  to  the  n^ligence  of 
another  miner,  a  fellow  workman  of  the  plaintiff,  and 
ordinarily  an  employer  is  not  called  upon  to  instruct  an 
employee  with  respect  to  dangers  which  may  result  from 
the  negligence  of  fellow  servants.  But  in  t^iis  instance 
the  employer  was  carrying  on  a  business  involving  some 
danger  to  its  employees,  and  it  appeared  that  defendant 
knew  of  the  possibility  of  special  danger  from  unex- 
ploded shots,  and  that  it  had  adopted  a  special  rule  for 
the  conduct  of  the  miners  to  guard  them  against  injury 


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JELIC  V,  JAMISON  C.  &  C.  Co;,  Appellant.       451 
1918.]  Opinion  of  the  Court. 

from  that  source.  The  defendant  company  was,  there- 
fore,  bound  to  instruct  its  employees  clearly  and  un- 
equivocally  with  i*espect  to  that  danger  and  as  to  the 
means  of  avoiding  it.  The  stringency  of  the  rule 
adopted  for  the  guidance  of  the  miners,  in  dealing  with 
unexploded  charges  when  they  were  discovered,  shows 
that  the  mining  comjianies  fully  appreciated  the  fact  of 
possible  danger  from  that  cause.  It  appears  from  the 
testimony  that  a  charge  of  dynamite  or  other  explosive 
placed  in  the  coal  and  fired  by  the  use  of  an  electric  bat- 
tery seldom  failed  to  explode,  but  when  one  did  miss  fire, 
the  miner  was  not  expected  or  permitted  to  deal  with  the 
situation,  but  was  required  to  report  the  circumstances, 
and  the  matter  was  turned  over  to  one  more  skilled  in  the 
use  of  explosives.  Unless  the  plaintiff  knew  of  the 
danger  to  be  apprehended  from  unexploded  shots,  he 
could  not  protect  himself  therefrom,  and  unless  he 
knew  of  the  rule  of  the  company,  made  for  his  pro- 
tection, he  could  not  be  expected  to  comply  with  what  the 
company  regarded  as  an  important  regulation.  Plaintiff 
testified  that  he  was  not  made  acquainted  with  the  dan- 
ger to  be  incurred  from  an  unexploded  shot,  and  had  no 
knowledge  concerning  it,  and  the  court  below  could  not 
have  said,  as  a  matter  of  law,  that  the  danger  was  obvious 
to  ordinary  inspection.  The  testimony  tends  to  show  that 
it  was  the  custom  of  older  and  experienced  miners  to  in- 
struct the  inexperienced  men  associated  with  them  part- 
ly for  that  purpose,  with  respect  to  the  dangers  of  the 
business,  and  that  this  instruction  should  include  direc- 
tions for  dealing  with  holes  in  the  coal  which,  to  the  eye 
of  an  experienced  miner,  indicated  that  they  might  con- 
tain unexploded  shots.  Whether  or  not  the  defendant 
in  this  case  depended  entirely  upon  this  method  of  in- 
struction does  not  clearly  appear  from  the  testimony, 
but,  if  the  employer  delegated  older  and  experienced  fel- 
low servants  of  the  inexperienced  men,  to  instruct  and 
qualify  them  for  service,  it  was  liable  for  the  negligence 
or  omission  of  tbe  instructor,  if,  by  reason  of  it,  the  em- 


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.462       tJELIC  V.  JAMISON  C.  &  C.  Co.,  Appellant. 

Opinion  of  the  Court.  [259  Pa. 

ployee  suffered  injury.  A  servant  delegated  to  instruct 
the  employee  stands  for  this  purpose  in  the  place  of  the 
employer^  and  the  latter  is  liable  for  his  default.  In 
any  event,  it  is  clear  from  the  evidence  that  it  was  the 
duty  of  the  defendant  to  see  that  the  plaintiff  was  duly 
warned  of  the  danger  of  injury  from  unexploded  shots 
remaining  in  the  coal  which  he  was  directed  to  take  out, 
a  danger  fully  recognized  by  the  defendant,  but,  accord- 
ing to  his  testimony,  unknown  to  the  plaintiff.  Whether 
or  not  the  defendant  discharged  its  duty  in  this  respect 
was  a  question  oif  fact  for  the  jury,  and,  under  the  evi- 
dence, the  trial  court  would  not  have  been  justified  in 
determining  it  as  matter  of  law. 

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


Lafferty  v.  Supreme  Council  Catholic  Mutual 
Benefit  Association,  Appellant 

Beneficial  associations — Insurance  companies — Distinction — By* 
laws  of  society — Death  benefits — Failure  to  include  hy-laws  in  cer- 
iifircate — Evidence — Unauthorized  circular  by  officer — Acts  of  Maiy 
11, 1881,  P.  L.  20,  and  April  6, 1893,  P.  L.  7-— Case  for  jury. 

1.  A  eontroUing  test  as  to  whether  an  organization  is  a  bene- 
ficial association  or  an  insurance  company  is  whether  the  organiza- 
tion comes  within  the  definition  of  the  Act  of  April  6,  1898,  P.  L. 
7,  which  declares  that  a  fraternal  beneficial  association  is  a  cor- 
poration, society  or  voluntary  association  organized  and  carried  on 
for  the  sole  benefit  of  its  members  and  their  beneficiaries  and  not 
for  profit,  "and  in  which  the  payment  of  death  benefits  shall  be  to 
families,  heirs,  blood  relatives,  affianced  husband  or  affianced  wife 
of,  or  to  i>erson8  dependent  upon  the  member.'^ 

2.  A  society  organized  as  a  social  institution  with  a  provision 
for  insurance  not  as  a  means  of  profit  but  in  the  exercise  of  a 
benevolent  and  fraternal  purpose,  and  governed  through  a  branch 
system  with  a  form  of  initiation,  requiring  that  an  applicant  can 
be  admitted  to  membership  only  after  investigation  and  report  by 
the  board  of  trustees  of  the  branch,  anfl  a  favorable  ballot  by  the 
members  present  at  a  regular  paeeting,  and  requiring  thfit  %h^ 


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LAPPERTY  f.  SUPREME  C.C.  MUT.  B.  ASSX.,Appel.  453 

101 8. J  Syllabus— Statement  of  Facts. 

de:jignation  of  beneficiaries  be  limited  to  relatives  or  dependents 
of  tbe  member,  or  to  a  charitable  institution  of  which  he  may  be 
an  inmate,  and  stipulating  that  no  member  may  belong  to  two 
branches  of  the  association  at  the  same  time,  is  a  beneficial  asso- 
ciation and  not  an  insurance  company. 

3.  The  Act  of  May  11,  1881,  P.  L.  20,  providing  that  where  an 
insurance  policy  refers  to  the  constitution  and  by-laws  of  the  in- 
surer as  forming  part  of  the  insurance  contract,  such  constitution 
and  by-laws  shall  not  be  admissible  in  evidence  unless  a  copy  there- 
of be  attached  to  the  policy,  applies  to  insurance  companies  and  not 
to  beneficial  associations. 

4.  In  an  action  against  such  organization  by  the  wife  of  a  mem- 
ber, the  statement  of  claim  averred  that  plaintiff's  husband  had  left 
home  and  had  not  been  heard  of  for  a  period  of  more  than  seven 
years,  arid  that  the  presumption  of  his  death  had  therefore  arisen. 
The  by-laws  of  the  association  provided  that  "no  time  of  absence 
or  disappearance  of  a  member,  without  proof  of  actual  death,  shall 
entitle  his  beneficiary,  family  or  next  of  kin  to  receive  any  part  or 
portion  of  the  said  fund,"  except  only  where  the  disappearance  had 
been  for  a  period  of  twenty  years.  The  trial  judge  excluded  the 
application  for  membership,  the  medical  certificate  and  the  con- 
stitution and  by-laws  of  the  association  on  the  ground  that  these 
papers  were  not  printed  in  or  attached  to  the  certificate  as  required 
by  the  Act  of  ]l£ay  11,  1881,  P.  L.  20,  relating  to  insurance  com- 
panies. Held,  (1)  the  defendant  society  was  a  beneficial  associa- 
tion and  not  an  insurance  company,  (2)  the  evidence  referred  to 
was  improperly  excluded,  and  (3)  the  court  erred  in  giving  bind- 
ing instructions  for  the  plaintiff. 

5.  In  such  case  a  circular  issued  by  the  grand  secretary  of  the 
defendant  without  the  proper  authority  of  the  organization,  may 
be  admissible  as  tending  to  modify  or  contradict  some  of  the  testi- 
mony of  that  official,  but  is  not  admissible  as  affecting  the  purpose 
or  character  of  the  defendant. 

Ogle  V.  Barron,  247  Pa.  19,  followed;  Marcus  v.  Heralds  of 
Liberty,  241  Pa.  429,  distinguished. 

Argued  Oct.  17, 1917.  Appeal,  No.  175,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Allegheny  Co., 
July  T.,  1916,  No.  305,  on  directed  verdict  for  plaintiff 
in  case  of  Katherine  Lafferty  v.  Supreme  Council  Catho- 
lic Mutual  Benefit  Association,  a  Corporation.  Before 
'  Brown,  C.  J.,  Potter,  Moschziskbr,  Frazbr  and  Wal- 
UNO,  JJ.    Reversed. 


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454  LAPPERTY  v,  SUPREME  C.C.  MUT.  B.  ASSN.,Appel. 
Verdict — Arguments.  [259  Pa. 

Assumpsit  on  death  benefit  certificate.    Before  Hay- 

MAKBRy  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

Directed  verdict  for  plaintiff  for  f  2,340  and  judgment 
thereon.    Defendant  appealed. 

EiTor8  assigned,  among  others,  were  in  refusing  de- 
fendant's offer  in  evidence  of  membership  application, 
medical  examiner's  certificate  and  constitution  and  by- 
laws of  the  defendant  association  (1),  and  directing 
verdict  for  plaintiff  (2). 

A.Y.  D.  Wattersariy  for  appellant. — The  defendant  is 
a  beneficial  association  and  not  an  insurance  company : 
Marcus  v.  Heralds  of  Liberty,  241  Pa.  429 ;  Ogle  v.  Bar- 
ron, 247  Pa.  19;  Heasly  v.  Heasly,  191  Pa.  539;  Fischer 
V.  American  Legion  of  Honor,  168  Pa.  279;  Taylor  y. 
Order  of  Sparta,  254  Pa.  556. 

The  presumption  of  death  arising  from  seven  years' 
absence  is  rebuttable :  Keech  v.  Binehart,  10  Pa.  240. 

Oeorge  Y.  Meyer ^  for  appellee. — The  death  benefit  cer- 
tificate in  the  present  case  is  in  terms  an  insurance 
policy :  Helmbold  v.  Independent  Order  Puritans,  61  Pa. 
Superior  Ct.  164. 

The  Act  of  May  11,  1881,  P.  L.  20,  relating  to  life  and 
fire  insurance  policies  is  applicable. 

The  defendant  is  engaged  in  the  carrying  on  of  the 
work  of  a  life  insurance  company  and  is  to  be  classed  as 
such:  Commonwealth  v.  Equitable  Beneficial  Associa- 
tion, 6  Dauphin  Co.  31;  Commonwealth  v.  Keystone 
Benefit  Association,  171  Pa.  465;  Berry  v.  Knights 
Templars'  &  Masons'  Life  Indemnity  Co.,  46  Fed.  Repr. 
439;  National  Union  v.  Marlow,  74  Fed.  Repr.  775; 
Taylor  V.  Order  of  Sparta,  254  Pa.  556;  Miftrcus  v.  Her- 
alds of  Liberty,  241  Pa.  429 ;  Lane  v.  American  Bdief 
Association,  25  Pa.  C.  C.  129. 

Absence  from  home  for  a  period  of  seven  years  without 


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LAPPERTY  V.  SUPREME  C.C.  MUT.  B.  ASSN.,Appel.  455 
1918.]  Arguments — Opinion  of  the  Court. 

being  heard  from  gives  rise  to  a  presumption  of  death : 
Bradley  v.  Bradley,  4  Wharton  173;  Burr  v.  Sim  et  al., 
4  Wharton  150;  Freeman^s  Est.,  227  Pa.  154. 

Opinion  by  Mb.  Justicb  Pottbb,  January  7, 1918: 

In  this  action  of  assumpsit  Katherine  Lafferty  sought 
to  recover  from  the  Supreme  Council  Catholic  Mutual 
Benefit  Association  the  sum  of  |2,000,  with  interest,  be- 
ing the  amount  of  a  certificate  issued  January  6,  1896, 
to  John  M.  Lafferty,  and  payable  upon  his  death  to  his 
wife,  the  plaintiff.  In  her  statement  of  claim  she 
averred  that  Lafferty  left  his  home  in  the  City  of  Pitts- 
burgh on  February  15,  1907,  and  has  not  been  seen  or 
heard  of  since,  though  extensive  search  and  diligent  in- 
quiry has  been  made  for  him,  and,  therefore,  the  pre- 
sumption of  his  death  arose  on  February  15,  1914,  at 
which  time  he  was  a  member  in  good  standing  of  the  as- 
sociation. 

Defendant  admitted  that,  on  February  15,  1914,  Laf- 
ferty was  in  good  standing,  as  a  member  of  the  associa- 
tion, but  averred  that  he  was  subsequently  suspended 
from  membership,  and  later  expelled,  in  accordance  with 
certain  provisions  of  the  constitution  and  by-laws  of  Uie 
association.  It  further  averred  that  proof  of  the  actual 
death  of  Lafferty  had  never  been  filed  with  the  associa- 
tion, and  that  the  certificate  in  question  had  been  issued 
in  express  terms  subject  to  the  laws,  rules  and  regula- 
tions of  the  association,  which  contained,  inter  alia,  a 
provision  as  follows :  "No  time  of  absence  or  disappear- 
ance of  a  member,  without  proof  of  actual  death,  shall 
entitle  his  beneficiary,  family  or  next  of  kin,  to  receive 
any  part  or  portion  of  said  fund,  except  that  when  a 
member  has  disappeared,  and  has  not  been  heard  from 
for  twenty  years,  and  when,  H  living,  it  appears  from 
our  records  that  he  would  be  seventy  years  of  age''  cer- 
tain payments  are  to  be  made  on  specified  conditions. 

On  the  trial  defendant's  counsel  (^ered  in  evidoice 
Lafferty's  application  for  membership,  the  medical  cer- 


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456  LAPPERTT  v.  SUPREME  C.C.  MUT.  B.  ASSN.,Appel. 
Opinion  of  the  Court  [269  Pa. 

tificate,  and  the  constitution  and  by-laws  of  the  assoeia- 
tion.  Objection  was  made  to  the  oflfer,  on  the  ground 
that  these  papers  were  not  printed  in  or  attached  to  the 
certificate,  and  that,  therefore,  under  the  Act  of  May  11, 
1881,  P,  L.  20,  they  formed  no  part  of  the  contract  and 
were  not  admissible  in  evidence.  The  objecti<m  was  sus- 
tained, the  trial  judge  holding  that  the  defendant  asso- 
ciation was  a  life  insurance  company,  and  was  not  a 
beneficial  association,  and  that  its  contract  with  Lafferty 
was  a  policy  of  life  insurance,  and  was  subject  to  the  pro- 
visions of  the  Act  of  1881.  He  refused  a  point  sub- 
mitted on  behalf  of  defendant  requesting  binding  instruc- 
tions in  its  favor,  and  directed  a  verdict  for  plaintiff  for 
the  amount  of  her  claim,  with  interest,  amounting  to 
(2,340,  which  was  duly  rendered,  and,  from  the  judgmwit 
entered  thereon,  defendant  has  appealed. 

The  first  assignment  of  error  raises  the  important 
question  in  this  case,  as  it  complains  of  the  action  of  the 
trial  judge  in  excluding  the  application  and  the  constitu- 
tion on  the  ground  that  defendant  is  substantially  an  in- 
surance  company,  and  not  a  beneficial  association.  The 
Act  of  1881  applies  only  to  insurance  policies,  and  does 
not  aflfect  certificates  of  membership  in  beneficial  asso- 
ciations. Two  of  our  late  cases,  in  which  the  line  of  dis- 
tinction has  been  drawn,  are  Ogle  v.  Barron,  247  Pa.  19, 
and  Marcus  v.  Heralds  of  Liberty,  241  Pa.  429.  In  the 
former  case  the  Royal  Arcanum  was  held  to  be  doing 
business  as  a  beneficial  association  and  not  as  an  insur- 
ance company,  and  in  the  latter  case  it  was  held  that  the 
Heralds  of  Liberty,  while  issuing  a  certificate  purport- 
ing to  be  that  of  a  beneficial  association,  actually  carried 
on  an  insurance  business,  and  that  its  contracts  were 
subject  to  the  Act  of  1881.  In  giving  the  reasons  for 
holding  that  the  Royal  Arcanum  was  a  beneficial  asso- 
ciation as  distinguished  from  a  life  insurance  company, 
we  said,  in  Ogle  v.  Barron,  247  Pa.  19,  22,  *'The  charter 
of  the  garnishee  shows  that  it  is  incorporated  *for  the 
purpose  of  fraternal  union,  aid  to  its  members  and  their 


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LAPPEBTY  V,  SUPREME  C.C.  MUT.  B.  ASSN.,Appel.  457 
1918.]  Opinion  of  the  Court. 

dependents,  the  education,  socially,  morally  and  intel- 
lectually of  its  members,  assisting  the  widows  and  or- 
phans of  deceased  members,  establishing  a  fund  for  the 
relief  of  sick  and  distressed  members,  etc/  The  consti- 
tution sets  forth  that  the  objects  of  the  order  are  *to 
unite  fraternally'  its  members,  'to  give  all  moral  and  ma- 
terial aid  in  its  power  to  its  members  and  those  depend- 
ent upon  them,'  ^o  educate  members  socially,  morally, 
and  intellectually,  and  to  assist  the  widows  and  orphans 
of  deceased  members,  etc/ ''' 

The  act  of  incorporation,  which  constitutes  the  charter 
of  defendant,  the  Catholic  Mutual  Benefit  Association, 
provides :  "Section  5.  The  object  of  this  corporation  shall 
be  to  improve  the  moral,  mental  and  social  condition  of 
its  members,  and  to  educate  them  in  integrity,  sobriety 
and  frugality,  to  endeavor  to  make  them  contented  with 
their  position  in  life,  and  to  aid  and  assist  members  or 
their  families,  in  case  of  death/' 

The  declared  objects  of  the  two  associations  are  prac- 
tically the  same,  except  that  defendant  undertakes  only 
to  aid  members  or  their  families  in  case  of  death,  and  not 
to  establish  a  fund  for  the  relief  of  sick  and  distressed 
members.  In  Ogle  v.  Barron,  we  further  said  (p.  22) : 
"It  was  shown  that  the  garnishee  operates  through  sub- 
ordinate councils,  and  that  defendant's  husband  was  a 
member  of  such  a  subordinate  council.  Before  becom^ 
ing  a  member,  he  was  required  to  undergo  investigation 
as  to  his  qualifications  for  membership.  He  was  also 
required  to  make  certain  pledges  which  related  to  his 
future  conduct  as  a  member  of  the  council.  These  re- 
quirements are  not  consistent  with  the  contention  that 
the  garnishee  conducted  the  business  of  an  insurance 
company,  or  that  it  did  not  maintain  itself  as  a  fraternal 
beneficiary  association." 

These  statements  are  equally  applicable  to  the  present 
defendant.  It  operates  through  subordinate  branches, 
another  name  for  councils.  Before  becoming  a  member 
of  a  branch  (by-laws,  sec.  175)  an  applicant  must  pos- 


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458  LAPPERTY  v.  SUPREME  C.C.  MUT.  B.  ASSN.,Appel. 
Opinion  of  the  Court.  [259  Pa. 

sees  certain  qualiflcationSy  among  which  are  the  follow- 
ing :  He  must  be  of  good  moral  character,  must  be  be- 
tween sixteen  and  fifty  years  of  age,  must  be  competent 
to  earn  a  livelihood  for  himself  and  family,  must  have 
had  the  smallpox  or  have  been  successfully  vaccinated, 
and  (Sec.  34)  must  be  a  practical  Roman  Catholic.  In 
order  to  retain  his  membership  and  participate  in  the 
beneficiary  fund,  he  must  continue  to  be  a  practical 
Catholic  and  perform  his  Easter  duty.  His  spiritual 
.qualifications  are  to  be  subject  to  the  decision  of  his  pas- 
tor, with  the  right  of  appeal  to  the  bishop  of  the  diocese. 
The  section  cited  (34)  expressly  states:  "No  one  whose 
claims  to  be  a  practical  Catholic  such  pastor  and  bishop 
refuse  to  endorse  can  be  admitted  or  retained  in  this  as- 
sociation. This  section  shall  never  be  altered  or 
amended." 

When  an  application  has  been  made,  it  is  required 
(Sec.  179)  to  be  read  at  a  regular  meeting  of  the  branch, 
entered  on  the  record  and  referred  to  the  board  of  trus- 
tees for  investigation.  They  must  inquire  and  report  at 
the  next  regular  meeting  of  the  branches  as  to  the  char- 
acter and  fitness  of  the  applicant  to  become  a  member.  If 
their  report  be  favorable  the  applicant  is  balloted  for 
by  secret  ballot,  and  if  approved  is  admitted.  If  the  re- 
port of  the  trustees  be  unfavorable  he  is  declared  re- 
jected, without  debate.  More  than  two  black  balls  out 
of  the  first  ten  votes  cast  and  more  than  one  black  ball 
out  of  any  subsequent  fen,  are  sufficient  to  prevent  the 
election  of  the  applicant.  If  the  applicant  is  elected 
(Sec.  181)  he  must  present  himself  for  initiation  at  a 
regular  meeting  of  the  branch  within  one  month  of  his 
election,  and  is  not  entitled  to  any  benefit  unless  he  has 
been  duly  initiated.  Immediately  upon  his  initiation, 
(Sec.  4)  the  financial  secretary  of  the  branch  is  required 
to  forward  the  new  member's  application,  with  a  report 
of  his  initiation  to  the  grand  secretary  of  the  association, 
who  must  enter  his  name  upon  the  roll  of  the  branch  in 
his  office.    Members  (Sees.  218,  220,  235)  may  be  sua- 


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LAPPBBTY  V.  SUPREME  C.C.  MUT.  B.  ASSN.,AppeI.  459 
1918.]  Opiniua  of  tho  Court. 

pended  or  expelled^  after  trial,  for  various  causes  other 
than  the  nonpayment  of  monthly  beneficiary  payments 
or  branch  dues.  Every  applicant  (Sec.  177)  must  be 
recommended  by  two  members  in  good  standing  in  the 
branch  to  which  his  application  is  made,  and  have  the 
statement  of  his  pastor  that  he  is  a  practical  Catholic. 
A  person  (Sec.  176)  cannot  hold  membership  in  two 
branches  at  one  and  the  same  time,  nor  can  a  resident  of 
a  city,  town  or  village,  where  there  is  a  branch  of  the  as- 
sociation, be  initiated  into  a  branch  in  any  other  city, 
town  or  village,  without  the  written  consent  of  the  pas- 
tor of  his  own  parish. 

All  these  requirements  are  consistent  with  the  claim 
of  defendant  to  be  a  beneficiary  association,  but  they  are 
not  in  keeping  with  the  manner  in  which  an  insurance 
company  is  managed  or  controlled.  This  is  particularly 
true  with  respect  to  the  avowed  purpose  of  the  associa- 
tion to  improve  the  moral,  mental  and  social  condition 
of  its  members,  and  to  educate  them  in  integrity,  so- 
briety and  frugality,  and  its  endeavor  to  make  them  con- 
tented with  their  positicm  in  life.  There  was  no  evi- 
dence to  show  that  the  affairs  of  the  association  were 
conducted  otherwise  than  in  the  manner  prescribed  by 
the  constitution  and  by-laws,  and  the  testimony  of  the 
officers,  at  the  trial,  indicated  that  the  provisions  of  the 
con8tituti<m  and  by-laws  were  observed  in  practice  by 
the  supreme  council  and  the  subordinate  branches.  This 
was  quite  in  contrast  with  the  methods  and  the  manage- 
ment disclosed  in  Marcus  v.  Heralds  of  Liberty,  241  Pa. 
429,  where  it  was  determined  that  the  defendant  was  do- 
ing  business  as  an  insurance  company.  Mr.  Justice  El- 
kin  there  found  (p.  435) :  "After  a  careful  reading 
of  all  the  evidence  presented  by  this  record  we  discover 
that  but  little  attention  is  paid  to  the  social,  fraternal 
and  benevolent  features  of  the  order;  but,  on  the  other 
hand,  the  plan  of  organisation,  the  method  of  soliciting 
business,  the  emphasizing  of  the  advantage  of  being  in- 
sured, the  minimizing  and  in  large  areas  the  elimination 


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460  LAPPERTY  v.  SUPREME  C.C.  MUT.  B.  ASSN.,Appel. 
Opinion  of  the  Court.  ['-^^  Pa- 

of  the  lodge  system  and  uumerous  other  like  features, 
all  point  to  but  one  end ;  which  is  that,  under  the  guise 
of  a  beneficial  associaticm,  defendant  is  doing  an  insur- 
ance business.  No  matter  by  what  name  called  the  re- 
sult is  the  sante." 

In  the  case  at  bar  the  facts  do  not  justify  any  such 
conclusion.  In  the  opinion  in  Marcus  v.  Heralds  of 
Liberty,  241  Pa.  429,  much  stress  was  also  laid  on 
the  fact  that  the  officials  of  the  order  were  paid  large 
salaries,  and  that  premiums  were  paid  for  bringing  in 
new  business.  In  the  present  case,  it  appears  f  rcwn  the 
evidence  that  four  officers  of  the  defendant  association 
receive  modest  salaries,  from  f 500  to  f3,000  a  year,  and 
that  certain  bonuses  and  expenses  are  paid  for  organiz- 
ing new  branches.  The  association  pays  no  commission 
for  bringing  in  new  members. 

After  careful  consideration  of  all  the  evidence  we  are 
clear  that  the  facts  of  the  present  case  bring  it  within  the 
principle  of  the  decision  in  Ogle  v.  Barron,  supra,  and 
that  the  defendant  is  a  beneficial  association.  In  dis- 
cussing a  similar  question  in  Fischer  v.  American  Legion 
of  Honor,  168  Pa.  279,  Mr.  Justice  Fell  said  (p.  285) : 
**There  is  a  material  and  fundamental  distinction  be- 
tween philanthropic  or  beneficial  associations,  which 
issue  benefit  certificates  to  their  members,  and  life  in- 
surance companies,  which  was  pointed  out  in  Common- 
wealth V.  Equitable  Beneficial  Association,  187  Pa.  412, 
and  has  since  been  recognized  in  Dickinson  v.  A.  O.  TJ. 
W.,  159  Pa.  258,  and  in  Lithgow  v.  Supreme  Tent^  Etc., 
165  Pa.  292.  It  appears  from  the  charter  and  by-laws 
that  the  association  defendant  was  organized  for  social, 
moral  and  intellectual  purposes  and  for  the  relief  of  sick 
and  distressed  members.  Insurance  is  not  its  only  nor 
its  primary  object.  It  limits  the  persons  and  classea^f 
persons  who  may  be  named  as  beneficiaries  to  *the  fam- 
ily, orphans  or  dependents'  and  provides  that  in  the 
event  of  the  failure  of  all  such  persons  or  classes  of  per- 
sons the  sum  due  shall  revert  to  the  order.    The  amount 


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LAPPBBTY  V.  SUPREME  C.C.  MUT.  B.  ASSN.,AppeI.  461 
1918.]  Opinion  of  the  Court. 

secured  by  the  certificate  is  subject  to  deductions  for  re- 
lief benefits  paid  in  case  of  sickness  or  disability  to 'the 
member  and  for  his  funeral  expenses.  Where  the  bene- 
ficiary has  died  the  member  may  name  another.  These 
provisions  are  in  entire  harmony  with  the  object  of  the 
order  as  a  fraternal  and  beneficial  organization^  and 
they  are  entirely  incompatible  with  the  vesting  of  an  in- 
terest in  the  fund  in  the  beneficiary  before  the  death  of 
a  member.  Such  a  construction  would  in  many  cases,  by 
giving  the  fund  to  the  legal  representatives  of  the  bene- 
ficiary, divert  it  entirely  from  the  purpose  intended  by 
the  member  and  for  which  the  organization  was  formed.'^ 
The  decision  in  the  case  just  cited  was  based  largely 
upon  the  limitations  placed  upon  the  persons  who  might 
be  named  as  beneficiaries,  coupled  with  a  provision  that, 
in  the  event  of  the  failure  of  all  such  persons,  the  sum 
due  shall  revert  to  the  order.  Similar  limitations  and 
provisions  appear  in  the  by-laws  of  the  defendant  bere. 
Such  provisions  would,  of  course,  have  no  proper  place 
in  a  contract  of  life  insurance.  It  will  also  be  noted 
that  in  the  Act  of  April  6, 1893,, P.  L.  7,  a  fraternal  bene- 
ficial association  is  defined  as  a  corporation,  society  or 
voluntary  association,  organized  and  carried  on  for  the 
sole  benefit  of  its  members  and  their  beneficiaries  and 
not  for  profit,  "and  in  which  the  payment  of  death  bene- 
fits shall  be  to  families,  heirs,  blood  relatives,  affianced 
husband  or  affianced  wife  of,  or  to  persons  dependent 
upon  the  member."  Here  again  the  application  of  this 
controlling  test  makes  it  clear  that  the  defendant  is 
properly  to  be  classed  as  a  beneficial  association. 

In  the  fifth  assignment  of  error,  complaint  is  made  of 
the  admission  in  evidence,  against  objection,  of  a  circu- 
lar issued  by  J.  W.  Sullivan,  grand  secretary.  The 
only  evidence  in  regard  to  the  circular  was  that  of  Sul- 
livan himself,  who  testified  that  it  was  an  advertisement 
of  his  own,  and  not  of  the  corporation,  and  that  he  did 
pot  have  the  authority  of  the  supreme  council  to  issue 
it.   The  circular  may  be  admissible  ai^  tending  to  modify 


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462  LAPPERTT  v.  SUPREME  C.C.  MUT.  B.  ASSN^  Appel. 
Opinion  of  the  Court.  [259  Pa, 

or  contradict  some  of  the  testimony  of  the  witness,  8alli^ 
Tan,  but  it  is  not  admissible  as  affecting  the  purpose  or 
character  of  the  defendant  corporaticm. 

To  recapitulate,  the  evidence  shows  that  the  defend- 
ant is  organized  as  a  social  institution,  with  the  provi- 
sion for  insurance  not  as  a  means  of  profit,  but  in  the 
exercise  of  a  benevolent  and  fraternal  purpose.  It  shows 
that  the  association  is  governed  through  a  branch  system 
with  a  form  of  initiation.  It  further  shows  that  an  ap- 
plicant can  be  admitted  to  membership  only  after  in- 
vestigation and  report  by  the  board  of  trustees  of  the 
branch,  and  a  favorable  ballot  by  the  members  present 
at  a  regular  meeting,  and  that  the  designation  of  bene- 
ficiaries is  limited  to  relatives  or  dependents  of  the  mem- 
ber, or  to  a  charitable  institution  of  which  he  may  be  an 
inmate.  These  and  other  characteristics  shown  are  dis- 
tinctly those  of  a  beneficial  associaticm,  and  do  not  com- 
port with  the  object,  purpose,  or  methods  of  operation  of 
an  insurance  company. 

The  first  and  second  assignments  of  error  ai*e  sus- 
tained, and  the  judgment  is  reversed,  witii  a  venire  facias 
de  novo. 


St.  Clair  Borough,  Appellant,  v.  Tamaqua  &  Potts- 
ville  Elec.  Ry.  Co.  et  al. 

Jurisdiction,  C.  P. — Public  Service  Commission — Complaint — 
Street  railways — Change  of  rates — Reasonableness — Boroughs — 
Contracts — BiU  in  equity — Dismissal — Findings  of  Public  Service 
Commission — Appeal — Practice,  C,  P. — Act  of  July  26, 191S,  P.  L, 
lS7i — Trial  by  jury. 

1.  Since  the  Act  of  July  26,  1913,  P.  L.  1374,  mattere  within 
the  jurisdiction  of  the  Public  Service  Commission,  including  the 
reasonableness  of  rates  charged  by  public  service  corporations, 
must  first  be  determined  by  it,  in  every  instance,  before  the  courts 
will  adjudge  any  phase  of  the  controversy. 

2.  The  decision  of  the  Public  Service  Commission  on  the  Bub- 
ject  of  rates  is  subject  to  review,  and  the  courts  are  vested  with 


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ST.  CLAIR  BORO.,Appel.,t;.TAMAQUA  &  P.E.RY.CO.  463 

1918.]  Syllabufl— Statement  of  Facts, 

the  right  and  fixed  with  the  duty  of  paseing  ui>on  the  record  brought 
up  on  appeal,  which  record  shall  include  the  testimony,  the  findings 
of  facts,  if  any,  of  the  conmiission  based  upon  such  testimony,  a 
copy  of  all  orders  made  by  the  Commissicn  in  said  proceedings, 
and  a  copy  of  the  opinion,  if  any,  filed  by  the  commission. 

3.  In  cases  where. the  parties  had  a  right  to  trial  by  jury  before 
the  Act  of  1918,  such  right  is  still  preserved  to  them. 

4.  It  is  the  duty  of  the  reviewing  court,  if  it  shall  find  from  the 
record  that  an  order  of  the  Public  Service  Commission  appealed 
from  is  unreasonable,  or  based  upon  incompetent  evidence  ma- 
terially affecting  the  determination  or  order  of  the  commission,  or 
is  otherwise  not  in  conformity  with  law,  to  enter  a  final  decree 
reversing  the  order  of  the  conmiission,  or,  in  its  discretion,  to  re- 
mand the  record  to  the  conunission  with  directions  to  reconsider. 

6.  The  fact  that  no  complaint  is  made  to  the  Public  Service  Com- 
mission when  an  application  for  a  change  of  rate  is  filed  with  that 
body,  does  not  prevent  any  person  affected  thereby  from  subse- 
quently entering  a  complaint 

6.  Where  a  contract  fixing  a  rate  unlimited  in  time  has  been 
entered  into  by  a  public  service  company  with  a  borough  prior  to 
the  Act  of  1913,  the  State  has  the  right,  \mder  authority  of  that 
act,  through  the  Public  Service  Commission,  notwithstanding  the 
contract,  to  inquire  into  and  adjust  the  rate  to  a  reasonable  basis. 

7.  A  bill  in  equity  brought  by  a  borough  against  a  street  rail- 
way company  to  restrain  defendant  either  from  running  its  cars 
over  a  certain  route  or  from  charging  more  than  a  certain  fare,  on 
the  ground  that  the  proposed  increase  of  fare  was  unreasonable 
and  that  a  contract  existed  with  the  borough  under  which  the 
defendant  was  prohibited  from  charging  a  higher  rate,  was  prop- 
erly  dismissed  for  want  of  jurisdiction  where  it  appeared  that 
the  matter  had  not  been  submitted  to  the  Public  Service  Conunis- 
sion. 

8.  In  such  case  the  borough  should  file  its  complaint  with  the 
Public  Service  Commission,  and  if  the  commission  permits  the 
increase,  the  borough  can,  on  appeal,  raise  all  questions  properly 
involved  in  which  it  has  an  interest  and  have  them  passed  upon  by 
the  courts. 

Argued  Oct.  18, 1917.  Appeal,  No.  292,  Jan.  T.,  1917, 
by  plaintiff,  from  decree  of  C.  P.  Schuylkill  Co.,  Nov.  T., 
1917,  No.  2,  in  Equity,  dismissing  bill  in  equity  for  in- 
junction in  case  of  The  Borough  of  Saint  Clair  v.  The 
Tamaqua  and  Pottsville  Electric  Railway  Company,  the 
Pottsville  and  Saint  Clair  Electric  Railway  Company, 


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464  ST.  CLAIR  BORO.,AppeL,t;.TAMAQUA  &  P.B.RY.CO. 
Statement  of  Facta — Opinion  of  the  Court.  [259  Pa. 
the  Pottsville  Union  Traction  Company,  and  the  Eastern 
Pennsylvania  Railways  Company.  Before  Brown,  C. 
J.,  Potter,  Stewart,  Moschzisker,  Frazbr  and  Wal- 
UNO,  JJ.    Affirmed. 

Bill  in  equity  to  restrain  defendant  from  running  cars 
over  a  certain  designated  route  or  to  prohibit  defendant 
from  charging  more  than  a  fiven^ent  fare  thereon.  Be- 
fore Bbciitel,  P.  J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court. 

The  lower  court  dismissed  the  bilL  Plaintiff  ap- 
pealed. 

Errors  assigned,  among  others,  were  refusal  of  injunc- 
tion and  dismissal  of  bill. 

WUliatn  Wilhelm,  with  him  J.  Milton  Boone,  for  ap- 
pellant. 

Otto  E.  Farquhar  and  F.  C.  Newhourg,  Jr.,  with  them 
By  ran  A.  Milner,  M.  M.  Burke  and  Joseph  dcF.  Junkin, 
for  appellees. — The  regulation  of  fares  and  the  construc- 
tion of  contracts  in  relation  thereto,  are  exclusively 
within  the  jurisdiction  of  the  Public  Service  CJommis- 
sion:  Act  of  July  26,  1913,  P.  L.  1374;  Bellevue  Bor- 
ough v.  The  Ohio  Valley  Water  Company,  245  Pa.  114. 

Opinion  by  Mr.  Justice  Moschzisker,  January  7, 
1918: 

The  Borough  of  St.  Clair  filed  a  bill  in  equity  against 
the  Tamaqua  and  Pottsville  Electric  Railway  Company, 
the  Pottsville  and  St.  Clair  Electric  Railway  Company, 
the  Pottsville  Union  Traction  Company,  and  the  East- 
ern Pennsylvania  Railways  Company,  praying  that  they 
either  be  restrained  from  running  their  cars  over  a  cer- 
tain designated  route  or  prohibited  from  charging  more 
than  a  five-cent  fare  thereon ;  September  18,  1917,  the 
(jourt  below  preliminarily  enjoined  the  operation  of  the 


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ST.  CLAIR  BORO.,App€l.,v.TAMAQUA  &  P.B.RT.CO.  465 
1918.]  Opinion  of  the  Court. 

cars;  but,  on  September  25,  1917,  the  following  decree 
was  entered,  "The  court  being  of  opinion  that  it  has  no 
jurisdiction,  and,  therefore,  cannot  maintain  this  injunc- 
tion, under  245  Pa.  114,  it  is  hereby  ordered  that  the  in- 
junction be  dissolved";  October  6,  1917,  an  additional 
decree  was  filed,  as  follows,  "Counsel  for  the  plaintiflE 

having  asked  the  court  to  dispose  of  the 

prayer  for  the  granting  of  a  preliminary  injunction  rela- 
tive to  the  five-cent  fare,  in  which  the  court  is  asked  to 
gi*ant  an  injunction  to  restrain  the  defendant  company 

from  charging  a  six-cent  fare ,  we  decline  to  grant 

any  injunction,  for  the  reasons  heretofore  given , 

to  wit,  that  we  have  no  jurisdiction  in  the  case,  under  the 
decision  heretofore  cited";  plaintiff  has  appealed,  and 
these  two  decrees  are  assigned  as  error. 

It  appears,  inter  alia,  that  in  1894  the  Tamaqua  and 
Pottsville  Company  was  granted  a  municipal  franchise 
to  lay  tracks  in  the  plaintiff  borough ;  that  in  1906  an- 
other ordinance  was  approved,  conferring  the  privilege 
of  making  certain  extensions,  wherein  it  was  stipulated 
that  not  more  than  a  five-cent  fare  should  be  charged ; 
that  later  the  rights  possessed  by  the  first  named  cor- 
poration passed  to  the  other  defendants  and  the  street 
railway  in  question  is  now  operated  by  the  Eastern 
Pennsylvania  Railways  Company. 

Plaintiff  contends  that  the  ordinance  of  1906  is  bind- 
ing upon  the  defendant  companies,  and  therefore  the  lat- 
ter have  no  legal  right  to  raise  their  fares  from  five  to  six 
cents,  while  the  defendants  contend  that  they  never  built 
the  extensions  granted  by  this  ordinance,  and  for  that 
reason  it  has  no  binding  effect;  further,  that  they  have 
complied  in  all  respects  with  the  requirements  of  the 
Public  Service  Company  Law  of  July  26,  1913,  P.  L. 
1374,  and  are  entitled  to  charge. the  increased  rate;  but 
the  court  below  did  not  decide  any  of  these  contentionr, 
hoHing,  a0  stated  in  the  above  quob&i  decreiBs;.that  it 
had  no  jurisdiction,  and  citihg  the  decision  of  thid  court 

Vol.  cclix — 30 

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466  ST.  CLAIR  BORO.,Appel.,t;.TAMAQUA  &  P.E.RT.CO. 
Opinion  of  the  Court.  [269  Pa. 

in  Bellevue  Borough  v.  Ohio  Valley  Water  Co.,  245  Pa. 
114. 

In  the  Bellevue  Borough  ease,  we  decided  two  points 
of  law :  (1)  That  "hereafter,  so  long  as  the  Act  of  1913 
[supra]  remains  in  force,  the  question  of  the  reasonable- 
ness of  rates  established  by  public  service  corporaticms 
must  in  the  first  instance  be  submitted  to  the  Public 
Service  Commission,  when  challenged,"  and  we  there 
said,  "This  is  now  the  declared  statutory  policy  of 
the  law,  and  it  is  binding  not  only  upon  the  interested 
parties,  but  upon  the  courts  as  well"  (p.  116) ;  (2) 
Where  contracts  fixing  a  rate  "unlimited"  in  time  have 
heretofore  been  entered  into  by  public  service  companies, 
the  State  has  the  right,  through  the  Public  Service  Com- 
mission, notwithstanding  the  contract,  to  inquire  into 
and  adjust  the  rate  to  a  reasonable  basis ;  and,  in  this 
connection,  we  said :  "We  decided  in  [Turtle  Creek  Boro. 
V.  Penna.  Water  Co.,  243  Pa.  415]  that  a  contract  of  this 
kind,  unlimited  by  its  terms,  and  hence  indeterminate  as 
to  time,  could  not  be  enforced  indefinitely,  and  must  give 
way  to  the  general  policy  of  the  law  under  which  the  1^- 
islature  created  a  special  tribunal  to  pass  upon  and  de- 
termine questions  relating  to  the  reasonableness  of  rates 
charged  by  public  service  corporations"  (see  also  Mt. 
Union  Boro.  v.  Mt.  Union  W.  Co.,  256  Pa.  516,  520). 

As  before  stated,  the  court  below  did  not  attempt  to 
adjudge  as  to  the  binding  force  of  the  allied  contract 
here  in  question,  i.  e.,  the  ordinance  of  1906,  but  evi- 
dently based  its  decision  upon  our  ruling  in  the  Bellevue 
Borough  case,  to  the  effect  that  questions  of  rates  to  be 
charged  by  public  service  corporations  must  be  passed 
upon  in  the  first  instance  by  the  Public  Service  Commis- 
sion, before  any  aspect  of  the  matter  involved  can  be 
brought  before  the  courts  for  determination ;  and  in  this 
ws  see  no  error. 

The  Aet  of  1913,  snpra^  does  not  deprive  the  coiurts  of 
jany  ultimate  power  theretofore  vested  in  thttn  under  tbe 
laws  of  the  Commonwealth;   it  requires  merely  that^ 


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ST.  CLAIR  BORO.,Appel.,v.TAMAQUA  &  P.E.RY.CO.  467 
1918.]  Opinion  of  the  Court, 

when  a  rate  is  to  be  op  has  been  increased  by  a  public 
service  corporation,  all  complaints  concerning  the 
change  shall  be  first  submitted  to  and  passed  upon  by 
the  Public  Service  Commission.  In  turn,  the  decision  of 
the  commission  is  subject  to  review,  and  the  courts  are 
vested  with  the  right  and  fixed  with  the  duty  of  passing 
upon  the  record  brought  up  on  appeal  (Boro.  of  Mt. 
Union  v.  Mt  Union  W.  Co.,  256  Pa.  516,  518),  "which 
record  shall  include  the  testimony  taken  therein,  the 
findings  of  fact,  if  any,  of  the  commission  based  upon 
such  testimony,  a  copy  of  all  orders  made  by  the  com- 
mission in  said  proceedings,  and  a  copy  of  the  opinion, 
if  any,  filed  by  the  commission"  (Article  VI,  Section  18)  • 
In  cases  where  the  parties  theretofore  had  a  right  of 
trial  by  jury,  it  is  still  preserved  to  them  (Article  VI, 
Section  29,  as  amended  by  the  Act  of  June  3, 1915,  P.  L. 
779,  782 ;  New  Brighton  Boro.  v.  New  Brighton  W.  Co., 
247  Pa.  232,  241;  West  Virginia  P.  &  P.  Co.  v.  Public 
Service  Commission,  61  Pa.  Superior  Ct.  555,  569) ;  and 
in  all  instances  it  is  made  the  duty  of  the  reviewing 
court,  if  it  shall  find  from  the  record  "that  the  order  ap- 
pealed from  is  unreasonable  or  based  upon  incompetent 
evidence  materially  affecting  the  determination  or  order 
of  the  commission,  or  is  otherwise  not  in  conformity  with 
law,'*  to  '^enter  a  final  decree  reversing  the  order  of  the 
commission,  or,  in  its  discretion,  it  may  remand  the  rec- 
ord to  the  commission,  with  directions  to  reconsider  the 
matter  and  make  such  order  as  shall  be  reasonable  and 
in  conformity  with  law'*  (Article  VI,  Section  24).  The 
fact  that  no  complaint  is  made  to  the  commission,  when 
a  change  of  rate  is  filed  with  that  body,  does  not  prevent 
any  person  aflfected  thereby  from  subsequently  entering 
one  (Article  V,  Section  4) :  Baltimore  &  Ohio  R.  E.  Co. 
V.  Public  Service  Commission,  66  Pa.  Superior  Ct.  403, 
406.  The  commission  is  armed  with  ample  facilities  far 
making  investigations,  and  the  provisions  of  the  statute 
afford  it  full  means  of  enforcing  its  orders  when  entered ; 
moreover,  in  change-of-rate  cases,  pending  hearing,  the 


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468  ST.  CLAIE  BOEO.,Appel.,t;.TAMAQUA  &  P.E.RY.CO. 
Opinion  of  the  Court.  [251  Pa. 
commission  is  expressly  empowered  to  require  the  public 
service  company  involved  to  ^'furnish  to  its pa- 
trons a  certificate of  payments  made  by  them  in 

excess  of  the  prior  established  rate"  (Article  V,  Section 
4)/  and  subsequently,  if  an  increase  is  denied,  to  make 
an  order  for  reparation  (Article  V,  Section  5), 

The  plaintiff  borough  in  the  present  case  may  file  its 
coihplaint  and  have  it  passed  upon  by  the  Public  Service 
Commission,  whose  duty  T^ill  be,  not  only  to  decide  as  to 
the  reasonableness  of  the  rate,  but  also  to  find  all  ma- 
terial facts  in  connection  with  the  increase :  B.  &  O.  B. 
B.  Co.  V.  Public  Service  Ck)mmission,  supra,  p.  413. 
Should  the  commission  decide  that  the  change  of  fare  is 
unreasonable,  then,  so  far  as  the  borough  is  concerned, 
that  will  be  the  end  of  the  matter;  but,  on  the  other 
hand,  should  that  tribunal  permit  the  increase,  then,  on 
appeal,  the  borough  can  raise  all  questions  properly  in- 
volved in  which  it  has  an  interest,  and  have  them  passed 
upon  by  the  courts. 

Since  the  Public  Service  Company  Law  has  been  upon 
our  books,  we  have  consistently  adhered  to  the  rule  that 
matters  within  the  jurisdiction  of  the  commission  must 
first  be  determined  by  it,  in  every  instance,  before  the 
courts  will  adjudge  any  phase  of  the  controversy  (Beth- 
lehem City  Water  Co.  v.  Bethlehem  Borough,  No.  2,  253 
Pa.  333, 337-8;  New  Brighton  Borough  v.  New  Brighton 
Water  Co.  et  al.,  247  Pa.  232,  240,  241,  242) ;  and  it  is 
plain  that  orderly  procedure  requires  an  adherence  to 
this  practice,  otherwise  different  phases  of  the  same  case 
might  be  pending  before  the  commission  and  the  courts 
at  one  time,  which  would  cause  endless  confusion. 
Under  the  established  system,  the  commission,  in  the 
first  instance,  passes  upon  all  changes  of  rates  made  by 
public  service  corporations,  subj^t  to  a  proper  and  well 
regulated  review  by  the  courts,  where  and  when  all  qij€«i? 
tiaHs  of  law  may  be  raised  and  determined;  and  ''this  is 
so  not  because  the  courts  have  any  desire  to  avoid  the 
performance  of  duties  cast  upon  them  by  the  law,  but 


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ST.  CLAIR  BORO.,Appel.,t;.TAMAQUA  &  P.E.RY.G0.469 
1918.]  Opinion  of  the  Court. 

because  the  people,  speaking  through  the  legislature, 
have  declared  that  these  duties  shall  be  performed  by  a 
special  tribunal  created  for  the  purpose.  The  disposi- 
tion everywhere  is  to  commit  questions,  relating  to  the 
regulation  and  to  the  rates  of  public  service  corpora- 
tions, to  the  supervisory  powers  of  special  tribunals,  and, 
concededly,  matters  of  this  character  are  within  the  do- 
main of  legislative  action" :  Bellevue  Borough  v.  Ohio 
Valley  Water  Co.,  supra,  p.  118;  see  also  York  Water 
Co.  V.  York,  250  Pa.  115, 118. 

The  assignments  of  error  are  overruled,  and  the  orders 
appealed  from  are  affirmed. 


Williams  et  al.,  for  use  of,  v.  Notopolos,  Appellant. 

Landlord  and  tenant — Leases — Covenant  not  to  alter  without 
lessor^ s  consent — Lessor's  refusal — Oood  faith — Alleged  condition — 
Construction — Forfeiture — Act  of  S2  Henry  VUI,  Ch.  Si,  Rev, 
Stat.  I—Pleadings'-Act  of  May  U,  1916,  P.  L.  k8S,  Sec,  2'-Pracr 
iice,  C,  P, — Judgment  on  warrant — Framing  issue — Evidence -^^ 
Written  instruments — Parol  evidence — Fraud,  accident  and  mis* 
take. 

1.  Under  the  Act  of  32  Henry  VIII,  Ch.  34,  Rev.  Stat  1,  which 
is  in  force  in  Pennsylvania,  aU  the  rights  and  remedies  under  a 
lease,  which  belonged  to  the  lessor,  belong  to  the  lessor's  grantee. 

2.  A  condition,  on  breach  of  which  a  tenant's  interest,  may  be 
terminated,  is  to  be  distinguished  from  a  covenant  the  breach  of 
which  cannot,  in  the  absence  of  a  statutory  provision  to  the  con- 
trary affect  the  tenant's  interest  but  merely  gives  the  landlord  a 
right  of  action  for  damages,  or,  occasionally,  a  right  to  lan  injunc- 
tion, or  a  decree  for  si>ecific  performance.  Mere  words  of  agree- 
ment, not  contemplating  a  termination  of  the  lessee's  interest  upon 
his  default,  create  a  covenant,  and  not  a  condition. 

3.  Conditions  that  work  forfeitures  are  not  favorites  of  the  law, 
and  nothing  less  than  a  clear  expression  of  intention  that  a  pro- 
vision shall  be  such,  will  make  it  a  condition  upon  which  the  con- 
tinuance of  an  estate  granted  depends.  Where  the  language  of  an 
agreement  can  be  resolved  into  a  covenant  the  judicial  inclination 
is  80  to  construe  it. 

4.  To  justify  a  refusal  to  accept  on  the  ground  that  work  or  ma- 


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470      WILLIAMS  et  al.  v.  NOTOPOLOS,  Appellant. 

SyUabus.  [259  Pa. 

terial  must  be  satisfactoiy  to  the  party  acguiring  it,  the  objecticm 
must  be  made  in  good  faith  and  must  not  be  merely  capricious. 

5.  Under  the  rule  that  an  uncertainty  as  to  the  meaning  of  a 
clause  in  a  lease,  is  to  be  determined  in  favor  of  the  lessee,  the  court 
will  not  construe  a  provision  in  a  lease  for  confession  of  judgment 
in  ejectment,  on  the  breach  of  any  of  the  "conditions''  of  the  lease 
to  include  covenants  and  agreements,  although  covenants,  agree- 
ments and  conditions  are  placed  substantially  on  the  same  basis, 
and  a  breach  of  either  gives  the  lessors  the  right  to  declare  a  for- 
feiture. 

6.  A  lease  provided  **lessee agrees  that  all  plans  for  alter** 

ations,  improvements  and  changes  in  said  buildings  shall  be  sub^ 
mitted  to  and  be  approved  in  writing  by  the  said  lessors,  their  duly 
authorized  agents  or  attorneys,  before  any  woi^  is  done  or  changes 
made  in  said  bmldings,"  and  further  provided  "on  the  breach  of  any 
of  the  conditions  of  this  lease"  the  lessor  may  obtain  possession 
by  means  of  an  amicable  action  and  confession  of  judgment  in 
ejectment.  Thereafter  the  lessor  assigned  the  reversion  and  the 
lessee  made  improvements  without  the  consent  of  the  owner.  There 
was  evidence  that  the  lessor's  refusal  was  capricious  and  not  made 
in  good  faith  and  solely  for  the  purpose  of  enabling  him  to  gain 
possession  of  the  demised  premises  by  forfeiture  of  the  unexpired 
term  of  the  lease.  Held,  (1)  under  the  terms  of  the  lease  plaintiff 
is  not  entitled  to  an  amicable  action  and  confession  of  judgment 
in  ejectment  by  reason  of  the  alleged  breach  of  the  agreement  that . 
his  plans  should  be  submitted  to  and  approved  by  the  lessors,  be- 
fore he  began  work  on  the  alterations ;  (2)  the  question  of  plaintiff's 
good  faith  in  his  refusal  to  approve  the  plans  which  defendant  sub- 
mitted to  him  is  one  of  fact  which  should  have  been  submitted  to 
the  jury,  and  (3)  the  trial  judge  erred  in  directing  a  verdict  for 
plaintiff. 

7.  In  such  case  evidence  as  to  a  conversation  between  the  lessor 
and  lessee  in  reference  to  an  insertion  in  the  lease  of  the  clause  as 
to  alterations  and  of  an  alleged  promise  made  by  the  lessor  in  re- 
gard to  the  alterations  that  would  be  permitted  under  such  clause, 
was  properly  excluded  where  such  conversation  took  place  five  days 
prior  to  the  execution  of  the  lease  and  there  was  no  allegation  that 
anything  had  been  omitted  from  the  lease  by  fraud,  accident  or 
mistake.  Such  evidence  could  not  have  been  admissible  even  though 
the  conversation  had  been  contemporaneous  with  the  execution  of 
the  lease. 

8.  In  such  case  where  the  record  consisted  of  a  statement  of 
claim,  an  answer  by  defendant  in  the  form  of  a  petition  to  open 
the  judgment  and  a  reply  thereto  by  plaintiff,  the  pleadings  suffi- 
ciently complied  with  the  Practice  Act  of  1915,  requiring  that  in 


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WILLIAMS  et  al.  v.  NOtOPOLOS,  Appellant.      4!tl 
1918.]  Syllabus — ^Argiiments. 

actions  of  assumpsit  ''the  pleadings  shall  consist  of  the  plaintiff's 
statement  of  claim,  the  def^idant's  afMavit  of  defense,  and  where 
a  set-off  or  counterclaim  is  pleaded,  the  plaintiff's  reply  thereto/' 
and  plaintiff  cannot  complain  in  such  case  that  the  court  erred  in 
proceeding  to  trial  without  a  formal  issue  having  been  framed.  The 
better  practice  is  to  formally  state  the  issue  and  to  incorporate 
the  questions  to  be  decided  by  the  jury  into  the  order  so  that  they 
can  be  answered  specifically. 

Argued  Sept.  25, 1917.  Appeal,  No.  165,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Cambria  Co.,  Dec. 
T.,  1913,  No.  18,  E.  D.,  on  verdict  for  plaintiflf,  in  case  of 
Homer  D.  Williams  and  John  F.  Williams,  for  use  of 
George  Panagotacos,  now  George  Panagotacos,  v.  A.  No- 
topolos.  Before  Brown,  C.  J.,  Mbstbbzat,  Potter, 
Stewart,  Mosghzisker,  Frazbr  and  Walung,  JJ.  Re- 
versed. 

Rule  to  open  a  confessed  judgment  entered  by  virtue 
of  warrant  in  a  lease.    Before  Stephens,  P.  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  opened  the  judgment. 

Verdict  for  plaintiff  and  judgment  thereon.  Defend- 
ant appealed. 

Errors  assigned  were,  rulings  on  evidence,  and  in  re- 
fusing to  enter  judgment  for  defendant  n.  o.  v. 

J.  Earl  Ogle,  Jr,,  and  John  M.  Freeman,  for  appellant. 
— No  forfeiture  of  the  lease  can  be  declared  for  breach 
merely  of  a  covenant  of  the  lease  where  the  lease  only 
provides  for  forfeiture  in  case  of  breach  of  the  conditions 
thereof :  McClintock  et  al.,  Assignees,  v.  Loveless,  5  Dist 
Rep.  417 ;  McKnight  v.  Kreutz,  51  Pa.  232 ;  Doe  v.  Jones, 
2  C.  &  K.  743 ;  Paschall  v.  Passmore,  15  Pa.  295. 

P.  N.  Shettig,  of  Kittell  d  Shettig,  with  him  L.  Verde 
Rhue,  for  appellee. 


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472      WILLIAMS  et  al.  v.  NOTOPOLOS,  AppeUant. 

Opinion  of  the  Court.  [259  Pa, 

Opinion  by  Mb.  Justice  Pottbb,  January  7, 1918: 

From  the  record  in  this  case,  it  appears  that  on  June 
17,  1913,  the  owners  of  a  three-story  brick  building  and 
lot  of  ground  on  Main  street,  Johnstown,  leased  the  prop- 
erty to  the  defendant  for  a  term  of  five  years,  with  the 
right  of  renewal  for  five  years  more.  It  was  contem- 
plate^  that  the  lessee  should  make  alterations  and  im- 
provements to  the  building  at  his  own  expense,  and  the 
lease  contained  the  following  provision:  "Lessee  also 
agrees  that  all  plans  for  alterations,  improvements  and 
changes  to  said  buildings  shall  be  submitted  to,  and  be 
approved  in  writing  by  the  said  lessors,  their  duly  author- 
ized agents  or  attorneys,  before  any  work  is  done  or 
changes  made  in  said  buildings." 

The  lease  also  contained  a  clause  authorizing,  on  the 
breach  of  any  of  its  conditions  by  the  lessee,  the  entry 
of  judgment  in  ejectment  against  him,  and  the  issuance 
of  a  writ  of  habere  facias.  There  was  also  the  following 
clause :  "All  rights  and  liabilities  given  to  or  imposed 
upon  either  or  any  of  the  parties  hereto  shall  extend  to 
and  be  binding  upon  and  inure  to  the  benefit  of  the  heirs, 
executors,  administrators  and  assigns  of  such  parties.'' 

Notopolos,  the  defendant,  entered  into  possession,  and 
shortly  thereafter,  on  August  20,  1913,  the  lessors  sold 
the  leased  premises  to  George  Panagotacos.  The  grantee 
took  the  property  subject  to  the  lease,  but  it  does  not  ap- 
pear that  it  was  ever  assigned  to  him. 

In  August  and  September,  1913,  Notopolos  submitted 
to  Panagotacos  plans  for  proposed  alterations  of  the 
building  on  the  leased  premises,  but  the  latter  declined  to 
approve  them,  and,  without  his  approval,  the  lessee  pro- 
ceeded to  make  the  alterations  shown  by  the  plans. 
Thereupon  Panagotacos  caused  judgment  in  ejectment  to 
be  entered  against  the  lessee,  alleging  a  violation  of  the 
condition  quoted  above,  and  issued  a  writ  of  habere 
facias,  which  was  executed  by  the  sheriff.  Upon  petition 
of  the  lessee,  the  court  struck  oflf  the  judgment,  and  set 
aside  the  execution,  and  the  property  was  restored  to  his 


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WILLIAMS  et  al.  v.  NOTOPOLOS,  AppeUant.      473 
1918.]*  Opiuion  of  the  Court. 

possession.  On  appeal  this  court  reversed  the  order 
striking  oflf  the  judgment,  but  opened  it,  and  awarded  a 
procedendo,  with  a  stay  of  proceedings  on  the  execution : 
Williams  v.  Notopolos,  247  Pa.  554. 

No  formal  pleadings  were  filed,  and  no  issue  was 
framed  by  the  court  below.  The  trial  resulted  in  a  ver- 
dict for  plaintiff  by  direction  of  the  court. 

In  the  first  and  second  assignments  of  error,  complaint 
is  made  of  the  court  below  for  proceeding  with  the  trial 
of  the  case,  against  the  objection  of  counsel  for  plaintiff, 
without  a  formal  issue  having  been  framed.  The  Prac- 
tice Act  of  May  14, 1915,  P.  L.  483,  Sec.  2,  provides  that 
in  actions  of  assumpsit  ^^the  pleadings  shall  consist  of 
the  plaintiff's  statement  of  claim,  the  defendant's  affi- 
davit of  defense,  and,  where  a  set-off  or  counterclaim  is 
pleaded,  the  plaintiff's  reply  thereto."  The  record  in  the 
present  case  contains  a  statement  of  claim,  an  answer  by 
defendant  in  the  form  of  a  petition  to  open  the  judgment, 
and  a  reply  thereto  by  plaintiff.  This,  in  substance,  meets 
the  requirements  of  the  act  of  assembly,  although  it  is 
undoubtedly  better  practice,  and  aids  the  intelligent  de- 
termination of  the  matter,  to  have  the  issue  formally 
stated,  and  to  incorporate  the  questions  to  be  decided  by 
the  jury  into  the  order,  so  that  they  may  be  answered 
specifically  by  the  jury,  in  accordance  with  the  practice 
commended  in  Martin  v.  Kline,  157  Pa.  473. 

The  third,  fourth  and  fifth  assignments  of  error,  are  to 
the  action  of  the  trial  judge  in  sustaining  objections  to 
certain  questions  put  by  plaintiff's  counsel  upon  cross- 
examination.  These  questions  were  rightfully  excluded, 
as  they  were  not  properly  cross-examination,  and  were 
irrelevant. 

In  the  sixth,  seventh,  ninth  and  tenth  assignments,  it  is 
alleged  that  the  trial  judge  erred  in  excluding  evidence  of 
a  conversation  between  the  lessor  and  lessee,  in  reference 
to  the  insertion  in  the  lease  of  the  clause  as  to  alter- 
ati(ms,  and  of  an  alleged  promise  made  by  the  lessor  in 
regard  to  the  alterations  that  would  be  permitted  under 


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474      WILLIAMS  et  al.  v.  NOTOPOLOS,  AppeUant. 

Opinion  of  the  Court.  [259  Pa. 

such  clause.  As  this  conversation  took  place  on  June  12, 
1913,  and  the  lease  was  not  executed  until  June  17th,  five 
days  later,  the  alleged  promise  or  agreement  was  not 
contemporaneous  with  the  execution  of  the  lease,  and  the 
evidence  was  properly  excluded.  There  was  no  alle- 
gation that  anything  was  left  out  of  the  lease  by  fraud, 
accident  or  mistake,  and  in  the  absence  of  such  an  aver- 
ment, the  terms  of  a  written  instrument  are  not  to  be 
varied  by  setting  up  a  parol  agreement,  even  though  it 
was  contemporaneous  with  the  execution  of  the  written 
document:  CJeneral  Motors  Truck  Co.  v.  Philadelphia 
Paving  Co.,  248  Pa.  499;  First  Nat'l  Bank  of  Shick- 
shinny  v.  Tustin,  246  Pa.  151 ;  Crelier  v.  Mackey,  243 
Pa.  363. 

The  real  question  in  this  case,  raised  by  several  assign- 
ments of  error,  is  whether  the  plaintiff  had  the  right  to 
enforce  forfeiture  of  the  lease  for  the  reason  assigned 
in  his  statement,  and,  if  so,  whether  his  good  faith  in  so 
doing  is  a  question  for  the  jury. 

The  plaintiff,  as  owner  of  the  reversion,  is  entitled 
under  the  Act  of  32  Henry  VIII,  ch.  34,  which  is  in  force 
in  Pennsylvania,  to  all  the  rights  and  remedies  under  the 
lease  which  belonged  to  his  grantors,  the  original  lessors. 
'^After  reciting,  inter  alia,  *that  by  the  common  law  no 
stranger  to  any  covenant  could  take  advantage  thereof 
but  only  such  as  were  parties  or  privies  thereunto,'  the 
statute  enacts  that  grantees  or  assignees  of  the  reversion, 
or  assignees  of  lessors,  shall  enjoy  the  same  benefits  and 
remedies  which  the  lessors  or  grantors  themselves  had  or 
enjoyed  for  the  breach  of  any  condition,  covenant  or 
agreement  contained  or  expressed  in  leases  or  grants" : 
Jackson  &  Gross  on  Landlord  &  Tenant  in  Pennsylvania, 
p.  526,  Sec.  984.  If  the  plaintiff  is  entitled  to  claim  the 
benefits  of  the  provisions  of  the  lease,  then  the  next  ques- 
tion is,  whether  the  agreement,  on  the  part  of  the  lessee, 
that  his  plans  for  alterations  to  the  building  shall  be  sub- 
mitted to  and  approved  by  the  lessor,  before  any  work 
shall  be  done  or  changes  made  in  the  buildings,  amounts 


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WILLIAMS  et  al  v.  NOTOPOLOS,  AppeUant.      475 
1918.]  Opinion  of  the  Court 

to  a  condition  or  is  merely  a  coyenant?  Conditions  are 
^^qualifications  annexed  by  the  lessor^  whereby  the  estate 
granted  may  be  enlarged,  diminished^  created  or  defeat- 
ed, upon  the  happening  of  some  contingent  event" :  Jack- 
son &  Gross  on  Landlord  &  Tenant  in  Pennsylvania,  Sec. 
37,  p.  33. 

"The  underlying  principle  of  all  conditions  subsequent 
in  grants  of  land  is  that  they  prescribe  terms  upon  which 
the  land  shall  revert  to  the  grantor.  The  condition  may 
be  that  subsequent  to  receiving  the  land  the  grantee  must 
not  do  some  particular  thing  or  it  may  be  that  he  must 
do  some  required  thing.  But,  in  either  case,  if  the  grantee 
fails  to  perform  the  condition,  his  right  to  the  land 
ceases,  and  the  estate  reverts  to  the  ^antor  as  a  matter 
of  right ;  and  he  may  enter  or  bring  ejectment" :  Sims  on 
Covenants  which  Bun  with  Land,  p.  20. 

"A  condition,  on  breach  of  which  the  tenant's  interest 
may  be  terminated,  is  to  be  distinguished  from  a  cove- 
nant, a  breach  of  which  cannot,  in  the  absence  of  a  statu- 
tory provision  to  the  contrary,  affect  the  tenant's  interest, 
but  merely  gives  the  landlord  a  right  of  action  for  dam- 
ages, or  occasionally,  a  right  to  an  injunction,  or,  a  decree 

for  specific  performance Mere  words  of  agreement, 

not  contemplating  a  termination  of  the  lessee's  interest 
upon  his  default,  create  a  covenant,  and  not  a  con- 
dition": 2  Tiffany  on  Landlord  &  Tenant,  Sec.  194  (b), 
p.  1364. 

In  Paschall  v.  Passmore,  15  Pa.  295,  cited  by  appellant, 
Mr.  Justice  Bbll  said  (p.  307) :  ** Where  the  language 
of  an  agreement  can  be  resolved  into  a  covenant,  the  ju- 
dicial inclination  is  so  to  construe  it ;  and  hence  it  has 
resulted  that  certain  features  have  ever  been  held  essen- 
tial to  the  constitution  of  a  condition.  In  the  absence  of 
any  of  these,  it  is  not  permitted  to  work  the  destructive 
effect  the  law  otherwise  attributes  to  it.  As  proper  to 
frame  a  condition,  certain  words  are  recognized,  which, 
of  their  own  nature  and  eflBcacy,  without  the  addition 
of  other  words,  are  sufficient.    Among  these,  three  are 


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476      WILLIAMS  et  al.  v.  NOTOPOLOS,  AppeUant. 

Opinion  of'  the  Court.  [259  Pa, 

said  to  be  most  appropriate  to  make  an  estate  condi- 
tional ;  namely,  proviso,  ita  quod,  and  sub  conditione.'^ 

In  the  present  case,  the  wording  of  the  clause  in  ques- 
tion is,  "Lessee  also  agrees,"  etc.,  and  it  contains  none  of 
the  expressions  especially  appropriate  in  f  railing  a  con- 
dition. It  may  fairly  be  regarded  as  merely  a  covenant. 
In  the  lease,  however,  covenants,  agreements  and  con- 
ditions are  placed  substantially  upon  the  same  basis,  and 
a  breach  of  either  gives  the  lessors  the  right  to  declare  a 
forfeiture.  But  the  "additional  remedy"  of  obtaining 
possession  by  means  of  an  amicable  action  and  confes- 
sion of  judgment  in  ejectment,  which  is  the  remedy  to 
which  plaintiff  has  resorted,  is  given  only  "on  the  breach 
of  any  of  the  conditions  of  this  lease."  It  would  be  pos- 
sible to  so  construe  this  as  to  include  covenants  and 
agreements,  but  we  see  no  necessity  for  such  construction 
under  the  settled  rule  that  any  uncertainty  as  to  the 
meaning  of  a  clause  in  a  lease  is  to  be  determined  in  favor 
of  the  lessee. 

In  McKnight  v.  Kreutz,  51  Pa.  232,  cited  by  appellant 
as  similar  in  practice  to  the  case  at  bar>  Mr.  Justice 
Stim)NG  said  (p.  237) :  "Conditions  that  work  forfei- 
tures are  not  favorites  of  the  law,  and  nothing  less  than 
a  clear  expression  of  intention  that  a  provision  shall  be 
such,  will  make  it  a  condition  upon  which  the  continu- 
ance of  an  estate  granted  depends."  We  hold,  therefore, 
that,  under  the  terms  of  the  lease,  plaintiff  is  not  entitled 
to  an  amicable  action  and  confession  of  judgment  in  eject- 
ment, by  reason  of  the  alleged  breach  of  the  agreement 
that  his  plans  should  be  submitted  to  and  approved  by  the 
lessors,  before  he  began  work  on  the  alterations. 

The  question  of  plaintiff's  good  faith  in  his  refusal  to 
approve  the  plans  which  defendant  submitted  to  him  was 
a  question  of  fact  which  should  have  been  submitted  to 
the  jury.  The  rule  of  law,  where  work  or  material  must 
be  satisfactory  to  the  party  acquiring  it,  is  stated  inThay* 
ler  Bros.  v.  Greisser  Construction  Co.,  229  Pa.  512,  by 
our  Brother  Mosghziskee  as  follows  (p.  518) :   "The 


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WILLIAMS  et  al.  v.  NOTOPOLOS,  Appellant.  477 
1918.]  Opinion  of  the  Court. 
question  for  determination  is  not  as  to  whether  or  not 
the  one  complaining  ought  to  be  satisfied^  but  solely  as 
to  the  good  faith  of  the  dissatisfaction  alleged.  ^To  justi- 
fy a  refusal  to  accept on  the  ground  that  it  is  not 

satisfactory,  the  objection  should  be  made  in  good  faith. 
JX  must  not  be  merely  capricious' :  Singerly  v.  Thayer, 
108  Pa.  291."  Citing  also  numerous  later  cases  to  the 
same  effect. 

The  same  testimony  of  defendant  as  to  the  actions  of 
plaintiff  when  the  plans  were  submitted  to  him,  and  the 
testimony  of  the  witness,  Bose,  as  well  as  plaintiff's  own 
testimony  as  to  his  reasons  for  refusing  to  approve  the 
plans,  were  sufficient  to  warrant  the  jury  in  finding  as  a 
fact  that  his  refusal  was  capricious  and  not  made  in  good 
faith,  and  was  solely  for  the  purpose  of  enabling  him 
to  gain  possession  of  the  demised  premises  by  a  forfeiture 
of  the  unexpired  term  of  the  lease.  Whether  or  not  there 
was  an  actual  breach  of  the  lease,  depends  upon  the  fact 
as  to  plaintiff's  good  faith  in  refusing  to  approve  the 
plans. 

The  sixteenth  and  eighteenth  assignments  of  error  are 
sustained,  and  the  judgment  is  revenged,  with  a  venire 
facias  de  novo. 


Mintz  V.  Tri-Coimty  Natural  Gas  Company, 
Appellant. 

Contracts — Action  on  several  contract — Presumption^Set-off — 
Joint  debt — Affidavit  qf  defense — Insufficient  averments — Corpo' 
ration  defendant — Affidavit  by  person  not  officer — Insufficiency — 
Act  of  May  U,  1916,  P.  L,  Jf83— -Practice,  C.  P. 

1.  A  claim  due  from  plaintiff  and  others,  jointly,  cannot  be  set 
off  in  an  action  of  as9\mip8it  brought  by  plaintiff  aloi^e,  because  to 
allow  such  a  set-off  would  compel  the  latter  to  pay  indiyidually  ^ 
debt  for  which  he  is'  liable  only  when  called  upon  jointly  witlj 
others. 

2.  Two  or  more  persons  sued  jointly  may  set  off  a  debt  due  by  the 
plaintiff  to  any  one  of  them,  and  one  of  two  joint  obligees,  with  the 


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478  MINTZ  V.  TRI-COUNTY  NAT.  GAS  CO.,  AppeUant. 

SyUabuft— Sutement  of  Facts.  [259  Pa. 

consent  of  the  other,  may  use  the  obligation  as  an  equitable  de- 
fense in  an  action  by  the  obligor  against  one  of  them  alone. 

3.  At  common  law  there  are  three  distinct  forms  of  obligations 
ex  contractu :  (1)  joint,  (2)  several,  and  (3)  joint  and  several.  In 
an  action  on  the  first,  it  was  necessary  to  sue  all  the  obligors  to- 
gether, or  the  survivors  of  them;  on  the  second,  the  obligors  had  to 
be  sued  separately;  but  on  the  third,  the  plaintiff  could  elect  to 
sue  separately  or  jointly. 

4.  The  question  whether  a  contractual  promise,  made  by  two  or 
more  persons,  is  joint,  several,  or  joint  and  several,  depends  upon 
the  intention  of  the  parties  as  evidenced  by  the  language  employed 
in  the  agreement  under  consideration,  the  general  rule  being  that> 
in  the  absence  of  an  apparent  intent  to  the  contrary,  such  promises 
are  presumed  to  be  joint,  and  not  several  or  joint  and  several. 

6.  The  Practice  Act  of  May  14,  1915,  P.  L.  483,  providing  that 
affidavits  of  defense  shall  be  sworn  to  by  the  defendant  or  some  per- 
son having  knowledge  of  the  facts,  does  not  change  the  require- 
ments theretofore  existing  for  such  affidavits  when  made  by  agents 
of  corporations,  who  are  not  regular  officers  acting  within  the  scope 
of  their  authority. 

6.  An  affidavit  of  defense  filed  on  behalf  of  a  corporation  is  in- 
sufficient where  it  is  not  made  by  an  officer  of  the  corporation  but 
by  a  person  styling  himself  as  "chief  accountant,"  where  there  is 
nothing  to  show  why  it  is  not  made  by  an  officer  of  the  corporation, 
and  there  is  no  averment  that  the  affiant  had  personal  knowledge 
of  the  facts  averred. 

7.  In  an  action  on  a  written  contract  to  recover  for  natural  gas 
sold  defendant  company,  defendant  filed  an  affidavit  of  defense,  and 
a  supplemental  affidavit,  averring  by  way  of  set-off  that  prior  to 
the  contract  in  suit  the  plaintiff  and  five  other  persons  entered 
into  a  written  contract  with  defendant  whereby  the  former  sold 
the  latter  all  the  gas  from  a  certain  other  tract  of  land,  but  there- 
after diverted  such  gas  belonging  to  defendant  to  an  amount  in 
value  exceeding  plaintiff's  present  claim.  The  affidavit  of  defense 
was  made  by  the  chief  accountant  of  the  defendant  but  did  not  state 
that  he  w»i8  an  officer  of  the  corporation.  Held,  judgment  was 
properly  entered  for  plaintiff  for  want  of  a  sufficient  affidavit  of 
defense. 

Argued  Sept.  25, 1917.  Appeal,  No.  38,  Oct  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Clarion  Co.,  Aug: 
T.,  1916,  No.  109,  for  want  of  a  sufficient  affidavit  of  de- 
fense, in  case  of  David  Mintz  v.  The  Tri-County  Natural 
Gas  Company,  a  corporation.    Before  Brown,  C,  J., 


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MINTZ  V.  TRI-COUNTY  NAT,  GAS  CO.,  AppeUant.  479 
1918.]  Statement  of  Facts — Opinion  of  the  Court. 

Mestrbzat,  Potter,  Stbwabt,  Mobghziskbb,  FRAZEsand 
Walling,JJ.   Affirmed. 

Assompfiit  for  gas  sold  under  a  written  contract. 

Rule  for  judgment  for  want  of  a  sufficient  affidavit  of 
defense.    Before  Sloan,  P.  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  entered  judgment  for  plaintiff  for  want  of  a 
sufficient  affidavit  of  defense.   Defendant  appealed. 

Error  assigned  was  the  order  of  the  court. 

George  t\  Whitmer,  for  appellant. 

A.  A.  Geary,  with  him  F.  J.  Maffett,  H.  M.  Rimer  and 
W.  W.  Hindman,  for  appellee. — The  defendant  cannot 
set  off  in  this  action,  a  claim  for  damages  for  breach  of  an 
agreement  made  by  plaintiff  and  other  parties :  Schal- 
Cher  V.  BergdoU,  41  Pa.  Superior  Ct.  547;  Jackson  v. 
Clymer,  43  Pa.  79;  Milliken  &  Co.  v.  Gardner,  37  Pa. 
456 ;  M'Dowell  v.  Tyson,  14  S.  &  R.  300. 

Opinion  by  Me.  Justice  Mosghzisker,  January  7, 
1918: 

David  Mintz,  the  plaintiff,  sued  in  assumpsit  to  recover 
13,786.07  for  natural  gas  sold  to  the  Tri-County  Natural 
Gas  Company,  the  defendant,  under  a  written  contract. 
Defendant  filed  an.  affidavit  of  defense,  followed  by  a 
supplemental  affidavit,  wherein  it  averred  a  set-off,  in 
effect,  as  follows:  That,  prior  to  the  contract  in  suit, 
plaintiff  and  five  other  persolis,  naming  them,  entered 
into  another  written  contract  with  defendant,  whereby 
the  former  sold  to  the  latter  all  the  gas  under  and  from  a 
certain  other  tract  of  land ;  that,  notwithstanding  this 
contract  of  sale,  plaintiff,  before  the  accruing  of  the 
claim  in  suit,  "without  the  consent  of  defendant"  and 
"without  right  or  warrant  in  law  or  equity,"  entered 
upon  the  land  covered  by  the  lease  just  mentioned  and 


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480  MINTZ  V.  TBI-COUNTY  NAT.  GAS  CO.,  AppeUant. 

Opinion  of  the  Court  [269  Pa. 

disconnected  defendant's  gathering  lines,  connecting 
them  with  those  of  another  gas  company,  thus  "wrong- 
fully" diverting  gas  belonging  to  defendant  to  an  amount 
in  value  exceeding  plaintiff's  present  claim ;  that  defend- 
ant had  a  contract  of  sale  with  another  gas  company, 
under  which  the  fluid  wrongfully  taken  by  plaintiff  had 
been  disposed  of  at  a  price,  as  stated  in  the  affidavits  of 
defense,  exceeding  the  purchase  price  defendant  was  to 
pay  therefor;  that  the  act  of  plaintiff  in  wrongfully  con- 
verting and  appropriating  defendant's  gas,  and  the  for- 
'  mer's  "failure  to  deliver  or  permit  the  said  gas  to  be  de- 
livered to  defendant,"  had  prevented  and  was  preventing 
the  latter  from  making  delivery  thereof  to  its  vendee,  and 
that  this  had  caused  a  loss  to  defendant  of  the  difference 
between  the  price  it  was  to  pay  for  the  fluid  in  question 
and  the  price  at  which  it  had  sold  the  same,  stating 
quantity  and  prices ;  hence,  that  there  was  "now  due  and 
owing  from  plaintiff  to  defendant,  on  account  of  gas  ab- 
stracted and  diverted  by  plaintiff  as  aforesaid,  after  de- 
ducting plaintiff's  claim  [in  suit],  the  sum  of  |598.27," 
for  which  defendant  asked  a  certificate.  Judgment  was 
entered  in  favor  of  plaintiff  for  want  of  a  sufficient  affi- 
davit of  defense,  and  defendant  has  appealed. 

In  a  written  opinion  accompanying  the  order  for  judg- 
ment, the  court  below  states  the  view  that,  since  the 
cause  of  action  averred  by  defendant  against  plaintiff, 
by  way  of  set-off,  is  "a  tortious  taking  of  the  property  of 
defendant  by  plaintiff,"  and,  since  the  affidavits  of  de- 
fense contain  no  sufficient  averment  that  the  tort-feasor 
had  sold  the  converted  property,  defendant's  claim  is  in 
trespass  and,  therefore,  cannot  be  allowed  as  a  set-off  in 
the  present  action  of  assumpsit ;  furthermore,  that,  since 
the  affidavits  are  not  made  by  an  officer  of  the  defendant 
company,  but  by  one  styling  himself  "chief  accountant," 
in  that  particular  they  are  insufficient  for  want  of  essen- 
tial averments. 

The  defendant  contends  that  it  has  a  right  to  waive  the 
tort  and  treat  its  counterclaim  against  plaintiff  as  a 


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MINTZ  V.  TRI-COUNTY  NAT.  GAS  CO.,  Appellant.  481 
1918.]  Opinion  of  the  Court. 

breach  of  contract;  and  that,  from  this  point  of  view, 
such  claim  is  available  as  a  set-off.  The  difficulty  with 
this  contention  is  that  the  contract  alleged  to  be  breached 
is  not  simply  between  the  present  plaintiff  and  defend- 
ant, but  it  is  a  written  agreement,  or  gas  lease,  executed 
by  plaintiff  and  five  other  persons,  as  lessors,  and  de- 
fendant, as  lessee;  if,  therefore,  plaintiff's  alleged  tor- 
tious  act,  in  diverting  the  gas  thus  sold  to  defendant,  is 
to  be  treated  merely  as  a  failure  to  deliver  in  accordance 
with  the  contract,  then  all  six  lessors  are  jointly  liable 
for  this  breach  of  their  covenant,  and  defendant  cannot 
of  his  own  volition  single  out  any  one  of  them  as  the  ob- 
ject of  a  suit  based  upon  such  default,  which  is  the  effect 
of  the  set-off  averred  in  the  affidavits  of  defense. 

The  question  whether  a  contractual  promise,  made  by 
two  or  more  persons,  is  joint,  several,  or  joint  and  sev- 
eral, depends  upon  the  intention  of  the  parties  as  evi- 
denced by  the  language  employed  in  the  agreement  under 
consideration,  the  general  rule  being  that,  in  the  absence 
of  an  apparent  intent  to  the  contrary,  such  promises  are 
presumed  to  be  joint,  and  not  several  or  joint  and  sev- 
eral: Philadelphia  v.  Reeves  &  Cabot,  48  Pa.  472;  Pitts- 
ley  V.  King,  206  Pa.  193 ;  Morrison  v.  American  Surety 
Co.,  224  Pa.  41;  Boltz  v.  Muehlhof,  37  Pa.  Superior  Ct. 
375,  380.  As  said  by  our  present  Chief  Justice  in  Pitts- 
ley  V.  King,  supra  (p.  196),  "It  is  a  general  presumption 
of  law,  when  two  or  more  persons  undertake  an  obliga- 
tion, that  they  undertake  jointly,  and  words  of  severance 
are  necessary  to  overcome  this  primary  presumption.'* 
In  the  present  instance,  no  «uch  words  appear ;  hence 
we  say  that  the  plaintiff  and  his  fellow  lessors  are  all 
jointly  liable  for  a  failure  to  deliver  the  oil  sold  to  de- 
fendant, and  the  latter  cannot  maintain  a  suit  against 
plaintiff  alone  for  such  a  breach  of  co&tract.  At  common 
law,  there  are  three  distinct  forms  of  obligations  ex  con- 
tractu, i.  e.,  (1)  joint,  (2)  several,  and  (3)  joint  and 
several  In  an  action  on  the  first,  it  was  necessary  to 
sue  all  the  obligors  together,  or  the  Survivors  of  them; 
VOU  CCLIX— 31 


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482  MINTZ  V.  TRI-COUNTY  NAT.  GAS  CO.,  Appellant. 

Opinion  of  the  Court.  [259  Pa. 

on  the  second^  the  obligors  had  to  be  sued  separately; 
but;  on  the  thirds  the  plaintiff  could  elect  either  to  sue 
separately  or  jointly:  9  Cyc.  651  et  seq.;  30  Cyc.  121. 
Except  where  changed  by  statute,  these  principles  are 
still  applicable :  9  Cyc.  654,  and  n.  35.  Since  the  defend- 
ant cannot  maintain  a  suit  against  the  present  plaintiff 
alone,  for  the  breach  of  contract  which  it  contends  it  has 
a  right  to  take  advantage  of  in  this  action,  it  follows 
that  the  defendant  is  not  in  a  position  to  use  this  al- 
leged  breach  in  defense,  as  a  set-off;  for  the  rule  requir- 
ing mutuality  of  debts,  where  set-off  is  pleaded,  forbids 
the  setting  off  of  a  joint  debt  against  a  separate  one: 
34  Cyc.  712,  727,  730.  ^'Mutuality  of  debts  is  the  essen- 
tial circumstance  in  set-off" :  Cramond  et  al.,  Exrs.,  v. 
Bank  of  U.  S.,  1  Binn.  64,  69 ;  McDowell  v.  Tyson,  14  S. 
&  B.  299 ;  see  also  Milliken  &  Co.  v.  Gardner,  37  Pa.  456; 
Schalcher  v.  BergdoU,  41  Pa.  Superior  Ct.  547,  550-1 ; 
and,  on  the  general  subject  involved,  Hibert  v.  Lang,  165 
Pa.  439.  The  cases  which  hold  that  two  or  more  persons 
sued  jointly  may  set  off  a  debt  due  by  the  plaintiff  to  any 
one  of  them  (Childerston  v.  Hammon,  9  S.  &  B.  68; 
Stewart  v.  Colter,  12  S.  &  B.  252;  Cochran  v.  Cutter,  18 
Pa.  Superior  Ct.  282)  have  no  application  here,  since 
they  rest  upon  the  theory  that  defendants  have  the  right 
to  agree  among  themselves  as  to  the  adjustment  of  the 
proceeds  of  the  set-off,  and  hence  no  harm  is  done  to  any 
one.  This  rule  also  permits  one  of  two  joint  obligees, 
with  the  consent  of  the  other,  to  use  the  obligation  as  an 
equitable  defense  in  an  action  by  the  obligor  against  <me 
of  them  alone  (Smith  &  Co.  v.  Myler  &  Aber,  22  Pa.  36; 
Cochran  v.  Cutter,  supra),  for,  again,  no  harm  is  done; 
but  a  claim  due  from  plaintiff  and  others  jointly  cannot 
be  set  off  in  an  action  by  plaintiff  alone,  because  to  al« 
low  such  a  set-off  would  compel  the  latter  to  pay,  indi- 
vidually, a  debt  for  which  he  is  liable  only  when  called 
upon  jointly  with  others.  None  of  the  cases  above  cited 
is  precisely  like  the  one  at  bar,  but  a  discussion  of  rele- 
vant ruling  principles  will  be  found  therein. 


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inNTZ  V.  TRI-COUNTY  NAT.  GAS  CO.,  AppeUant.  483 
1918.]  Opinion  of  the  Court 

While  we  do  not  adopt  the  views  of  the  learned  court 
below  as  the  basis  of  our  decision  that  the  counterclaim 
was  properly  ref used,  yet,  for  the  reasons  we  have  stated, 
it  is  apparent  that,  when  treated  as  a  breach  of  contract, 
defendant's  claim  against  plaintiflf  is  no  more  available, 
by  way  of  set-off,  than  when  considered  as  an  action 
sounding  in  tort ;  therefore,  no  error  was  committed  in 
declining  so  to  allow  it  in  defense. 

The  propriety  of  the  ruling  on  the  question  of  the  at- 
tempted set-oflf  is  the  sole  point  raised  by  appellant's 
statement  of  the  "question  involved,''  and  we  might  well 
confine  our  consideration  thereto  (Spang  v.  Mattes,  253 
Pa.  101, 1034;  Hopkins  v.  Tate,  255  Pa.  56,  62) ;  but  we 
shall  briefly  pass  upon  the  point  of  practice  referred  to 
in  the  opinion  of  the  court  below.  The  affidavits  in  ques- 
tion not  having  been  made  by  an  officer  of  the  defendant 
corporation,  the  court  rightly  viewed  them  as  insufficient 
for  want  of  essential  averments.  As  President  Judge 
Sloan  says,  *The  affidavits  are  made  by  one  A.  J.  Hamil- 
ton, chief  accountant  of  the  corporation,  but  it  is  not 
stated  that  he  is  an  officer  of  the  corporation,  nor  why 
the  same  was  not  made  by  an  officer  of  the  corporation, 
and  it  is  not  averred  that  he  has  personal  knowledge  of 

the  facts In  the  supplemental  affidavit  he  states 

that  he  has  a  knowledge  of  the  facts,  and  that  ha  is  duly 
authorized  by  the  corporation  to  make  and  file  this  sup- 
plemental affidavit ;  but  there  is  nothing  in  the  supple- 
mental affidavit  of  defense  that  in  any  way  relates  to  the 
original  affidavit  which  would  cure  the  defects  in  it  [the 
original]  ;  and,  as  it  [the  supplemental]  neither  states 
nor  alleges  why  it  is  not  made  by  an  officer  of  the  cor- 
poration, i£  is  open  to  the  same  objection."  In  addition, 
it  may  be  said  that,  although  the  affiant  avers  that  he 
'T)elieves  and  expects  to  be  able  to  prove"  the  facts  there- 
in stated,  in  neither  affidavit  does  he  claim  personal 
knowledge,  or  that  he  makes  the  averments  thereof  after 
investigation  or  upon  information  imparted  to  him  by 
one  possessing  personal  knowledge.   In  short,  he  neither 


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484  MINTZ  V.  TKI-COUNTY  NAT.  GAS  CO.,  Appellant. 

Opinion  of  the  Court.  [259  Pa. 

claims  to  be  an  officer  who  would  naturally  possess  a 
knowledge  of  the  facts  averred  in  the  affidavits,  nor  does 
he  attempt  to  state  the  sources  of  his  information  or  even 
formally  to  allege  that  he  makes  the  averments  contained 
therein  upon  "information  and  belief;  moreover,  he 
fails  to  aver  how  he  is  "duly"  authorieed.  Hence,  the 
affidavits  are  insufficient  to  prevent  judgment. 

True,  the  Practice  Act  of  May  14, 1915,  P.  L.  483,  pro- 
vides that  affidavits  of  defense  "shall  be  sworn  to  by  the 
defendant  or  some  person  having  knowledge  of  the 
facts" ;  but  this  provision  in  no  way  changes  the  require- 
ments laid  down  in  our  prior  cases  for  such  affidavits 
when  made  by  agents  of  corporations  who  are  not  regu- 
lar officers  acting  within  the  scope  of  their  authority. 
For  discussion  of  this  point,  see  the  opinion  written  by 
Mr.  Justice  Mbstrbzat  in  Wakely  v.  Sun  Insurance  of- 
fice of  London,  Eng.,  246  Pa.  268,  271,  274-5;  and,  on 
the  general  subject  involved,  see  Griel  v.  Buckius,  114 
Pa.  187, 190;  see  also  Yeier  v.  Hanover  Fire  Ins.  Co.,  63 
Pa.  {Superior  Ct.  258 ;  Galashevsky  v.  Camden  Fire  Ins. 
Co.,  63  Pa.  Superior  Ct.  511 ;  Yeier  v.  Camden  Fire  Ins. 
Asso.,  66  Pa.  Superior  Ct.  571 ;  and,  for  an  example  of  a 
sufficient  averment,  see  Giordano  v.  St.  Paul  Fire  & 
Marine  Ins.  Co.,  63  Pa.  Superior  Ct.  233,  236. 

The  assignment  of  error  is  overruled  and  the  judg< 
ment  is  affirmed. 


Croyle,  Appellant,  v.  Johnstown  Water  Company. 

Water  companies — Eminent  domain — Territorial  rights — Special 
charter — Power  to  furnish  within  city  limits — Incidental  furnishing 
to  suburhan  districts — Effect  of  Constitution  of  187^ — Acceptance 
of  Act  of  April  29,  187k,  P-  L.  73— Ultra  vires  acts^Right  of 
pri^mte  partie§ — Remedy  \y  CommonnMalth-^Aci  of  June  19, 1871, 
P.  L,  IB&O-^Bitt  in  e^ty-^Injuncttotif^Diamitsal. 

1.  Where  the  takinsr  of  water  by  a  water  company  is  mamly  for 
the  purpose  of  supplying  citizens  within  the  proper  territorial  limits 


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CROYLE,  Appel.,  V.  JOHNSTOWN  WATER  CO.    485 
11)18.]  Syllabus — ^Assignment  of  Errors, 

of  the  company,  the  furnishing  of  a  small  supply  to  persons  outside 
of  the  limits  is  a  mere  incident  of  the  main  purpose  and  the  taking 
will  not  be  enjoined. 

2.  A  water  company  has  the  right  to  condemn  as  much  water  as 
is  reasonably  necessary,  not  only  for  present  purposes,  but  for  future 
needs. 

3.  A  water  company  incorporated  by  a  special  act  for  the  purpose 
of  supplying  water  to  five  boroughs  named  and  the  vicinity  thereof, 
did  not  lose  its  charter  rights,  at  the  adoption  of  the  Constitution 
of  1878,  or  by  its  acceptance  of  the  Corporation  Act  of  April  29, 
1874,  P.  L.  73,  and  where  the  boroughs  were  subsequently  con- 
solidated into  a  city,  the  corporation  did  not  exceed  its  charter 
rights  by  supplying  water  in  the  vicinity  of  such  city,  where  it  did 
so  merely  as  an  incident  to  the  business  of  supplying  water  to  the 
city. 

4.  Where  the  true  purpose  of  condemnation  of  water  by  a  water 
company  is  to  furnish  a  territory  beyond  the  original  charter  limits, 
such  question  can  be  inquired  into  only  by  the  Commonwealth  upon 
an  appropriate  proceeding,  but  not  by  a  bill  in  equity  under  the  Act 
of  June  19,  1871,  P.  L.  1360,  at  the  instance  of  a  private  person; 
and  a  bill  in  equity  alleging  such  purpose  and  seeking  to  enjoin 
such  taking  was  properly  dismissed. 

Practice,  Supreme  Court — Bquitu — FvmlI  decree — Quashing  ap- 
peal. 

6.  Where  on  bill  in  equity  no  final  decree  is  entered  after  over- 
ruling exceptions,  a  motion  to  quash  the  appeal  will  prevail,  but  in 
the  absence  of  such  motion  the  case  will  be  decided  on  the  merits. 

Argued  Sept.  26, 1917.  Appeal,  No.  Ill,  Oct.  T.,  1917, 
by  plaintiff,  from  decree  of  C.  P.  Somerset  Co.,  Equity 
Docket,  1910,  No.  14,  refusing  an  injunction,  in  case  of 
Elsie  Croyle  v.  Johnstown  Water  Company.  Before 
Mbstbbzat,  Pottbb,  Stbwabt  and  Moschziskbr,  JJ. 
Affirmed. 

Bill  in  equity  for  an  injunction.    Before  Bailbt,  P.  J. 
The  opinion  of  the  Supreme  Court  states  the  facts. 
The  court  on  final  hearing  dismissed  the  bill.    Plain- 
tiff appealed. 

Errors  assigned  were  in  dismissing  exceptions  to  vari- 
ous findings  of  fact  and  conclusions  of  law,  and  the  de- 
cree of  the  court. 


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486    CROYLE,  Appel,  v,  JOHNSTOWN  WATER  CO. 

Argumeut — Opinion  of  the  court.  [269  Pa, 

J.  A.  Berkey,  with  him  Norman  T.  Boose,  for  appel- 
lant.— The  Johnstown  Water  Company's  charter  of 
April  11,  1866,  P.  L.  723,  was  limited  by  acceptance  of 
the  CJonstitution  of  1873  and  the  Act  of  April  29,  1874, 
P.  L.  73,  relating  to  corporations,  and  it  has  no  right  to 
supply  water  outside  of  its  district :  Wallace  v.  Lehigh 
Water  Co.,  1  Northampton  Co.  117 ;  West  Easton  Spring 
Water  Co.,  9  D.  R.  546;  Tyrone  Gas  &  Water  Co.  v.  Ty- 
rone Boro.,  195  Pa.  566;  Bly  v.  White  Deer  Mt.  Water 
Co.,  197  Pa.  80. 

J.  C.  Davi€8,  with  him  UM  d  Ealy,  for  appellee. — 
The  right  of  this  company  to  supply  water  in  the  vicinity 
of  Johnstown  was  decided  in  Blanch  v.  Johnstown  Wat- 
er Co.,  247  Pa.  71. 

If  the  defendant  in  the  exercise  of  its  corporate  pow- 
ers, makes  an  improper  use  of  the  water  which  it  takes, 
it  is  answerable  to  the  Commonwealth  alone.  The  plain- 
tiff has  no  standing  to  ask  the  court  to  pass  upon  any 
such  alleged  misbehavior:  Blanch  v.  Johnstown  Water 
Co.,  247  Pa.  71 ;  Mier  v.  Citizens  Water  Co.,  250  Pa.  536. 

Opinion  by  Mb.  Justice  Potter,  January  7, 1918 : 
This  was  a  bill  in  equity,  praying  for  an  injunction  to 
restrain  the  defendant  company  from  appropriating  the 
water  of  the  north  fork  of  Ben's  Creek,  in  Somerset 
County,  and  from  entering  upon  and  laying  pipes  or 
water  mains  upon  or  through  plaintiff's  land.  After 
hearing  upon  bill,  answer  and  proofs,  the  trial  judge 
directed  a  decree  nisi  to  be  entered,  refusing  an  injunc- 
tion and  dismissing  the  bill  at  the  costs  of  plaintiff.  Ex- 
ceptions were  filed  and  overruled,  but  there  was  no  final 
decree.  If,  for  that  reason,  counsel  for  appellee  had 
moved  to  quash  this  appeal,  the  motion  must  have  pre- 
vailed. 

The  first  question  here  involved,  as  stated  by  counsel 
for  appellant,  is  as  follows:  *T)oes  a  water  company 
chartered  by  a  special  act  of  assembly  prior  to  the  Con- 


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CROYLE,  Appel,  v.  JOHNSTOWN  WATER  CO.    48? 
1918.]  Opinion  of  the  Court. 

Btitution  of  1873,  and  the  Corporation  Act  of  April  29, 
1874,  P.  L.  73,  for  the  purpose  of  supplying  water  to  five 
adjacent  boroughs  and  yicinity,  by  accepting  the  Con- 
stitution and  the  provisions  of  said  act  and  supplements 
thereto,  have  power,  after  the  consolidation  of  said  five 
boroughs  together  with  large  additional  territory  into  a 
new  municipality,  to  furnish  water  to  all  the  territory 
embraced  within  said  new  municipality,  and  to  other 
separate  municipalities  in  the  vicinity  thereof?''  In 
Blanch  v.  Johnstown  Water  Co.,  247  Pa.  71,  it  was  held 
that  the  Johnstown  Water  Company,  the  present  ap- 
pellee, has  the  right  to  supply  water  in  the  entire  City  of 
Johnstown,  and  for  that  purpose  to  exercise  the  power  of 
eminent  domain.  It  is,  however,  contended  that  the  de- 
cision in  that  case  does  not  rule  the  question  here  raised, 
because  the  water  company  is  seeking  to  appropriate  the 
water  of  Ben's  Creek  and  a  right  of  way  over  plaintiffs 
land  "for  the  purpose  of  supplying  water  to  a  number  of 
municipalities  outside  of  its  charter  limits,  although  ad- 
jacent to  and  in  the  vicinity  thereof."  It  is  true  that 
defendant  is  supplying  water  to  persons  outside  the 
limits  of  Johnstown,  but  such  supply  is  incidental  to  its 
main  purpose,  which  is  the  supply  of  water  to  the  public 
in  the  City  of  Johnstown,  so  that  the  case  falls  within 
the  principle  of  Mier  v.  Citizens  Water  Co.,  250  Pa.  536, 
in  which  it  was  held  (syllabus),  "where  the  taking  is 
mainly  for  the  purpose  of  supplying  citizens  within  the 
proper  territorial  limits  of  the  company,  the  furnishing 
of  a  small  supply  to  persons  outside  of  the  limits  is  a 
mere  incident  of  the  main  purpose  and  the  taking  will 
not  be  enjoined," 

The  defendant  company  was  originally  incorporated 
by  a  special  act  of  assembly  approved  April  11, 1866,  P. 
L.  723,  for  the  purpose  of  introducing  water  into  tiie  five 
boroughs  named  in  the  act,  "and  the  vicinity."  The  trial 
judge  has  found,  as  a  fact,  that  the  territory  outside  the 
City  of  Johnstown,  which  is  supplied  by  d^endant  com- 


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488    CROTLE,  Appel.,  v,  JOHNSTOWN  WaTER  CO. 

Opinion  of  the  Court.  [259  Fa. 

panj;  is  in  the  vicinity  of  the  boroughs  named  in  its  char- 
ter. 

In  Blanch  v.  Water  Co.  (supra),  it  was  held  "that  the 
water  company  neither  lost  nor  surrendered,  in  accept- 
ing the  provisions  of  the  Act  of  1874,  the  franchise  or 
privilege,  specially  conferred  upon  it  by  the  Act  of  1866, 
to  supply  five  named  boroughs  with  water."  It  natural- 
ly follows  that  the  right  to  supply  the  territory  in  the 
vicinity  of  the  five  boroughs  survived  in  like  manner. 
Counsel  for  appellant  rely  upon  the  case  of  Bly  v.  White 
Deer  Mt.  Water  Co.,  197  Pa.  80.  But  there  the  water 
company  attempted  to  supply  water  directly  to  the  pub- 
lic in  townships  and  municipalities,  to  which  its  charter 
did  not  admit  it.  In  the  present  instance  the  supply  of 
water  to  outside  territory  is  incidental.  The  Bly  case 
has  been  distinguished  in  later  decisions :  Bland  v.  Tip- 
ton Water  Co.,  222  Pa.  285 ;  Blauch  v.  Johnstown  Water 
Co.,  247  Pa.  71,  77;  Mier  v.  Citizens  Water  Co.,  250  Pa. 
536,  540.  But,  aside  from  this,  as  the  court  below  very 
properly  said :  "If  the  true  purpose  of  this  condemna- 
tion was  to  furnish  a  territory  beyond  the  original  char- 
ter limits,  that  is  a  matter  to  be  inquired  into  by  the 
State  upon  an  appropriate  proceeding,  but  not  by  a  bill 
in  equity  under  the  Act  of  June  19,  1871,  P.  L.  1360,  at 
the  instance  of  a  private  person." 
•  Counsel  for  appellant  also  question  the  right  of  de- 
fendant company  to  appropriate  a  water  supply  in  an- 
ticipation of  future  needs.  The  trial  judge,  however, 
found  as  a  fact,  upon  sufficient  evidence,  that  there  was 
^^a  reasonable  necessity''  for  the  appropriation  and  use 
of  the  waters  of  the  north  fork  of  Ben's  Creek,  in  ad- 
dition to  the  sources  of  supply  previously  appropriated. 
The  company  had  the  right  to  condemn  as  much  water 
as  was  reasonably  necessary,  not  only  for  present  pur- 
poses, but  for  future  needs.  See  Boalsburg  Water  Co.  v. 
State  College  Water  Co.,  240  Pa.  198. 

The  assignments  of  error  are  overruled,  the  decree  of 
the  court  below  is  affirmed,  and  this  appeal  is  dismissed 
at  the  cost  of  appellant. 


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SNYDEft  et  al.,  Appellants,  v,  BERKET  et  al.    489 
1918.]  Syllabus — ^Assignment  of  Errors. 

Snyder  et  al.,  Appellants,  v.  Berkey  et  al. 

Municipalities — Official  bonds — Default — County  auditors — Au- 
dit— Failure  to  appeal — Sureties^-LiahUity  for  defalcation  of  prin- 
cipal— Judgment  for  defendant, 

1.  An  action  at  law  will  not  lie  on  an  official  bond  until  there  has 
been  an  accounting  before  the  county  auditors,  who  constitute  a 
special  tribunal,  created  by  statute  for  the  purpose  of  adjusting  the 
accounts  of  such  officers  and  determining  the  amount  due  to  or  from 
them.  This  decision,  unappealed  from,  is  conclusive  and  precludes 
an  action  at  common  law  for  an  unadjudicated  account. 

2.  The  sureties  on  an  official  bond  given  by  the  treasurer  of  the 
directors  of  the  poor,  will  not  be  liable  for  an  embezzlement  com- 
mitted by  the  principal,  where  it  appears  that  the  books,  vouchers 
and  other  documents,  relating  to  the  accounts  of  the  treasurer,  were 
submitted  to  the  county  auditors  and  audited,  and  no  defalcation 
was  found ;  and  it  is  not  material  that  the  attention  of  the  auditors 
was  not  called  to  the  items  for  which  the  action  was  brought. 

Argued  Sept.  26, 1917.  Appeal,  No.  122,  Oct.  T.,  1917, 
by  plaintiffs,  from  judgment  of  C*  P.  Somerset  Co.,  Sept. 
T.,  1913,  No.  70,  for  defendants,  in  case  of  J.  J.  Snyder, 
J.  C.  Miller  and  J.  C.  Deitz,  Directors  of  the  Poor  and 
of  the  House  of  Employment  of  Somerset  County,  Penn- 
sylvania, V.  J.  A.  Berkey,  H.  L.  Sipe  and  H.  F.  Barron. 
Before  Mbstbbzat,  Potter,  Stbwajrt,  Moschziskb^  and 
Fbazbb,  JJ.    Affirmed. 

Assumpsit  on  an  official  bond.    Before  Buppel,  P.  J. 
The  opinion  of  the  Supreme  Court  states  the  facts. 
The  case  was  tried  by  the  court  without  a  jury. 
The  court  entered  judgment  for  defendants.  Plaintiffs 
appealed. 

Errors  assigned  were  in  dismissing  exceptions  to  vari- 
ous findings  of  fact  and  conclusions  of  law  and  the  judg- 
ment of  the  court 


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490    SNYDEE  et  al.,  AppeUants,  v.  BERKET  et  al. 

Arguments — Opinion  of  the  Court  [259  Pa. 

Francis  J.  Kooser,  with  him  P.  O.  Coher  and  Ernest  0. 
Kooser,  for  appellants. — The  defendants  are  liable  on  the 
bond  for  the  several  embezzlements  of  the  principal  and 
their  liability  may  be  determined  in  this  action  as  neither 
item,  nor  any  account^  book,  voucher  or  other  paper  re- 
lating to  the  said  embezzlements  was  ever  submitted  to 
the  county  auditors. 

The  bond  having  been  voluntarily  given  for  a  lawful 
purpose^  may  be  enforced  according  to  its  terms :  Clem- 
ent V.  Courtright,  9  Pa.  Superior  Ct.  45 ;  T7.  S.  v.  Hodson, 
10  Wall  395;  Slutter  v.  Kirkendall,  100  Pa.  307;  Clark 
V.  Morss,  142  Pa.  311;  Sullivan  v.  Middendorf,  7  Pa. 
Superior  Ct.  71;  Castors'  App.,  2  Penny.  337;  Com.  v. 
Clipsham,  16  Pa.  Superior  Ct.  50. 

Norman  T.  Boose,  with  him  J.A.Berkey,  for  appellees. 
— The  court  had  no  jurisdiction,  in  the  absence  of  proof 
that  the  amount  claimed  had  been  found  due  from  the 
principal  on  the  bond  by  the  county  auditors:  North- 
ampton Co.  V.  Yohe,  24  Pa,  305 ;  Blackmore  v.  All^heny 
Co.,  51  Pa.  160;  Siggins  et  al.  v.  The  Com.,  85  Pa.  278; 
Northampton  Co.  v.  Herman,  119  Pa.  373;  Schuylkill 
Co.  V.  Boyer,  125  Pa.  226;  Westmoreland  Co.  v.  Fisher, 
172  Pa.  317. 

Pbb  CURIAM)  January  7,  1918: 

This  is  an  action  of  assumpsit  on  the  official  bond  of 
H.  P.  Barron,  treasurer  of  the  directors  of  the  poor  and 
of  the  House  of  Employment  of  Somerset  County,  Penn- 
sylvania, for  1912,  on  which  Berkey  and  Sipe,  the  other 
two  defendants,  were  sureties.  In  September,  1912,  the 
treasurer,  in  his  official  capacity,  received  |1,100  and  in 
January,  1913,  |2,262,  both  of  which  sums  he  failed  to 
charge  himself  with  in  his  book  as  treasurer  and  which 
he  appropriated  to  his  own  use.  At  the  trial  before  the 
court  below,  under  the  Act  of  1874,  it  appeared  that  the 
books,  vouchers  and  other  documents  relating  to  the  ac- 
counts of  the  treasurer  for  the  year  1912  were  submitted 


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SNYDER  et  al.,  Appellants,  t\  BERKET  et  al.    491 
1918.]  Opinion  of  the  Court. 

to  the  county  auditors  by  the  treasurer^  and  that  the  ac- 
counts were  audited  by  the  auditors^  as  required  by  law, 
in  January  and  February,  1913.  The  report  of  the  audi- 
tors was  filed,  from  which  no  appeal  was  taken,  and  the 
same  became  absolute.  The  attention  of  the  auditors 
was  not  called  to  the  two  items  sued  for  in  this  action 
and  they  were  not  audited,  and  hence  were  omitted  from 
the  auditors'  report.  The  amount  found  by  the  auditors 
to  be  due  from  Barron  was  subsequently  paid  by  him  to 
his  successor  in  office.  The  learned  court  directed  judg- 
ment to  be  entered  for  the  defendants,  Berkey  and  Sipe, 
holding  that  the  |1,100  was  an  item  to  be  passed  on  by 
the  county  auditors  in  their  annual  settlement  in  1913^ 
and  their  report  unappealed  from  was  conclusive  upon 
all  parties,  and  the  item  of  |2,262  not  having  been  sub- 
mitted to  the  county  auditors  for  adjustment  and  there 
being  no  report  thereon  by  the  auditors,  a  common  law 
action  would  not  lie. 

The  learned  court  was  clearly  right  in  entering  judg- 
ment for  the  defendants.  The  decisions  of  this  court^ 
and  they  are  numerous,  are  uniform  in  holding  that  in 
such  cases,  and  under  the  facts  presented  by  this  record, 
an  action  at  law  will  not  lie  on  the  official  bond  until 
there  has  been  an  accounting  before  the  county  auditors. 
This  is  a  special  tribunal  created  by  statute  for  the  pur- 
pose of  adjusting  the  accounts  of  such  officers  and  de- 
termining the  amount  due  to  or  from  them.  Its  decision 
unappealed  from  is  conclusive,  and  precludes  an  action 
at  common  law  on  an  unadjudicated  account. 

The  judgment  is  affirmed. 


Bamage  v.  Producers'  &  Refiners'  Oil  Company, 
Appellant. 

Negligence — OU  companies — Fires — Origin — Engines — Hot  tube 
method — Dangerous  machinery  —  Custom  of  htisiness  —  Proximate 
cause — Case  for  jury. 


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492  RAMAGE  v.  PRODUCERS*  &  R.  OIL  CO.,  AppeUant. 

Syllabus— Opinion  of  Court  below.  [2^9  Pa. 

1.  In  an  action  against  an  oil  company  to  recover  damages  for 
injuries  to  plaintiff's  premises  caused  by  fire  alleged  to  have  been 
colnmunicated  from  defendant's  pumping  station,  the  case  is  for  the 
jury  and  a  verdict  for  the  plaintiff  will  be  sustained  where  it  ap- 
peared that  the  engines  in  such  station  were  equipi)ed  with  the  hot 
tube  method  of  ignition  causing  an  open  flame  to  come  in  contact 
with  escaped  oil,  and  such  method  of  operation  was  more  dangerous 
than  that  custofnarily  in  use. 

2.  In  such  case  plaintiff  was  not  bound  to  exclude  by  her  proofs 
every  possible  theory  as  to  the  fire's  origin  at  variance  with  her  own, 
but  was  required  only  to  exclude  every  other  reasonable  theory. 

Argued  Sept.  26,  1917.  Appeal,  No.  15,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Venango  Co., 
April  T.,  1915,  No.  33,  on  verdict  for  plaintiflf,  in  case  of 
S.  Y.  Ramage  v.  Producers'  &  Refiners'  Oil  Company.  Be- 
fore Mestbbzat,  Potter,  Stewart,  Moschziskbr  and 
Frazbr,  JJ.    Affirmed. 

Trespass  to  recover  damages  for  injury  to*  plaintiflf's 
lands,  caused  by  fire. 

In  the  case  of  Alice  E.  Ritchey  v.  Producers'  &  Refin- 
ers' Oil  Company,  Criswbll,  P.  J.,  filed  the  following 
opinion,  sur  defendant's  motion  for  judgment  n.  o.  v. : 

It  may  be  conceded  as  settled,  as  stated  by  the  learned 
counsel  for  the  defendant,  that  in  order  to  recover  in  this 
action  the  burden  was  on  the  plaintiff  to  prove  by  a  pre- 
ponderance of  the  credible  evidence,  first,  that  the  defend- 
ant was  negligent,  and  second  that  such  negligence 
caused  the  injury  complained  of.  On  behalf  of  the  de- 
fendant it  is  earnestly  contaided  that  the  plaintiflf  has 
not  met  these  requirements.  If  on  these  questions  there 
was  evidence  proper  for  the  consideration  of  the  jury 
the  defendant's  motion  should  not  be  granted. 

It  may  further  be  conceded  as  settled  that  the  ground 
of  liability  is  not  danger  but  negligence,  and  that  the  un- 
bending test  of  negligence  in  methods,  machinery  and  ap- 
pliances is  the  ordinary  usage  of  the  business.  On  the 
question  of  negligence  it  is  not  seen  how  the  conrt  could 
have  properly  controlled  the  event  of  the  suit  by  giving 


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RAMAGE  V.  PRODUCERS'  &  R.  OIL  CO.,  Appellant  493 
1918.]  Opinion  of  Court  below, 

to  the  jury  binding  instructions.  Instead  of  there  being 
no  evidence  to  sustain  the  plaintiff's  contention  in  refer- 
ence to  this  phase  of  the  case^  as  the  same  is  understood^ 
it  strongly  preponderated  over  that  of  the  defendant.  It 
is  true  that  in  some  respects  the  situation  was  peculiar. 
According  to  the  testimony  of  Mr.  Richards  ninety-five 
per  ctot.  of  the  pumping  powers  used  throughout  the  oil 
producing  territory  in  which  the  plaintiff's  property  was 
located  were  owned  by  the  National  Transit  Company, 
and  the  gas  engines  and  powers  used  by  it  were  operated 
by  the  magneto  instead  of  the  hot  tube  method,  by  rea- 
son of  its  greater  safety  and  the  danger  attending  the  use 
of  the  latter  method.  In  the  remaining  five  per  cent,  the 
evidence  indicates  the  very  general  use  of  the  magneto 
method  for  the  like  reason,  and,  because  of  its  attendant 
dangers,  the  occasional  use  only  of  the  hot  tube  method, 
such  occasional  uses  being  limited  to  times  when  the 
power  was  not  being  applied  to  the  propulsion  of  oils 
through  the  lines  or  when  low  pressure  only  was  re- 
quired. 

Neither  on  principle  nor  authority  is  it  understood 
that  the  National  Transit  pumps  should  be  excluded  from 
consideration  in  determining  what  the  general  usage  at 
the  time  of  the  loss  was.  Excluding  these,  however,  and 
regarding  only  the  testimony  relating  to  other  users  of 
such  machinery  the  case  would  still  appear  to  be  for  the 
jury.  The  generally  recognized  and  practically  admit- 
ted dangers  attending  the  use  of  the  hot  tube  method  of 
ignition,  in  powers  used  in  pumping  oils,  in  immediate 
connection  with  the  gaseous  and  dangerous  fluid,  were 
proper  for  consideration,  and  the  evidence  relating  there- 
to, instead  of  establishing  the  general  use  of  such  method, 
tended  to  establish  only  an  occasional  and  exceptional 
use  of  it 

As  to  the  evidence  relating  to  the  origin  of  th^  4re 
there  was  on  the  part  of  all  a  conceded  liability  to  the  es- 
cape  of  oil  and  gas  in  and  around  a  power  such  as  that 
destroyed,  especially  when  the  same  was  under  strain 


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494  EAMAGE  v.  PRODUCERS'  &  R.  OIL  CO.,  Appellant 

Opinion  of  Court  below — ^Assignment  of  Errors.  [269  Pa. 
by  forcing  oil  up  to  or  over  a  considerable  elevation.  That 
such  oil  and  gas  coming  in  contact  with  an  open  flame, 
such  as  is  used  in  the  hot  tube  method  of  ignition,  would 
ordinarily  produce  an  explosion  and  Are  is  so  manifest 
as  not  to  require  proof.  But  notwithstanding  the  pres- 
ence of  these  potential  conditions  favoring  and  account* 
ing  for  the  Are,  it  is  suggested  that  the  escaping  oil  or 
gas  might  have  become  ignited  otherwise  and,  without  any 
proof  of  facts  to  aid  them,  various  theories  are  advanced 
as  to  the  possible  origin  of  the  fire.  The  plaintiff  was  not 
bound  to  exclude  by  her  proofs  every  possible  theory  as 
to  its  origin  at  variance  with  her  own.  She  was  required 
only  to  exclude  every  reasonable  theory.  Her  theory  is 
based  upon  the  favoring  facts  and  conditions  indicated 
and  the  fact  of  the  presence  of  fire  in  the  midst  of  such 
conditions  maintained  by  the  defendant.  The  other  theo- 
ries are  based  upon  the  same  conditions  minus  the  essen- 
tial agency  of  an  existing  fire,  and  to  supply  this  it  was 
suggested  that  someone  when  at  or  near  the  pump  might 
have  thrown  down  a  burning  match,  or  that  the  exhaust 
pipe  of  the  engine  might  have  become  so  heated  as  to  ig- 
nite inflammable  material  in  contact  therewith.  These 
theories  involve  and  require  the  assumption  without 
proof  of  several  facts  not  essential  to  that  relied  on  by  the 
plaintiff  and  a  degree  of  credulity  only  could  attach  to 
them  of  like  importance.  The  conclusion  is  therefore 
reached  that  as  to  the  origin  of  the  fire  the  plaintiff's  evi- 
dence made  out  a  case  for  the  jury  and  the  court  cannot 
summarily  determine  otherwise. 

Verdict  for  plaintiff  for  |1,536.71  and  judgment  thercr 
on.    Defendant  appealed. 

Errors  assigned  were  in  refusing  to  direct  a  verdict  for 
defendant  and  in  refusing  to  enter  judgment  for  defend- 
ant n.  o.  V. 

John  W.  Dv/nkle,  with  him  A.  R.  d  N.  F.  Osmer,  for 
appellant. 


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RAMAGE  V,  PRODUCERS'  &  R.  OIL  CO.,  AppeUant.  496 
1918.]  Opinion  of  the  Court. 

Wm.  M.  Parker,  with  him  W.  J.  Breene,  E.  C.  Breene 
and  J.  D.  Trax,  fop  appellee. 

Pbb  Curiam,  January  7, 1918 : 

This  and  two  other  cases  in  which  the  losses  grew  out 
of  the  same  fire  were  tried  together,  resulting  in  a  verdict 
and  judgment  for  the  plaintiff  in  the  respective  cases. 
One  Alice  E.  Ritchey  also  brought  an  action  and  recov- 
ered a  judgment  against  the  same  defendant  for  losses 
caused  by  the  same  fire  in  which  the  testimony,  in  so  far 
as  the  same  relates  to  the  cause  and  origin  of  the  fire  and 
the  alleged  negligence  of  the  defendant,  was  substantially 
the  same  as  that  produced  in  the  other  cases.  The  legal 
questions  in  all  the  cases  were  the  same. 

The  two  assignments  filed  in  the  present  case  alleged 
the  court  erred  in  not  affirming  the  defendant's  first  point 
that  under  the  law  and  evidence  the  plaintiff  was  not 
entitled  to  recover,  and  in  not  entering  judgment  for  the 
defendant  non  obstante  veredicto. 

The  learned  trial  judge  submitted  the  case  to  the  jury 
in  a  charge  exceptionally  clear  and  entirely  adequate 
both  as  to  the  law  and  the  facts  and  to  which  error  is  not 
assigned.  For  the  reasons  given  in  the  opinion  filed  in 
the  Ritchey  case  refusing  the  motion  for  judgment  for  the 
defendant  non  obstante  veredicto,  the  learned  judge  made 
a  like  order  in  the  present  case,  and  on  that  opinion  this 
judgment  is  affirmed. 


BelFs  Petition. 

Real  property — Ejectment — Rule  to  "bring  ejectment — Party  in 
possession — Jurisdictional  facts — Evidence — Title — WiU  —  Posses- 
sion— Payment  of  rent — Act  of  June  10,  189$,  P.  L.  Jfl6. 

1.  A  proceeding  under  the  Act  of  June  10,  1893,  P.  L.  415,  by  a 
party  in  possession  of  land  to  have  an  issue  framed  to  determine 
title  as  against  other  claimants  must  comply  with  the  provisions  of 
the  statute  before  a  rule  will  be  granted  or  an  issue  allowed.    The 


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496  BELL'S  PETITION. 

Syllabus— Statement  of  Facts.  [259  Pa. 

jurisdictional  facts  required  l^  the  act  must  be  averred  in  the  pe- 
tition, and  relief  will  be  granted  if  'Ht  shall  appear  to  the  court  that 
the  facts  set  forth  in  the  petition  are  true." 

2.  Prior  to  the  Act  of  1893  conferring  jurisdiction  at  law,  a 
suitor  was  required  to  seek  relief  by  a  bill  quia  timet  filed  on  the 
equity  side  of  the  court  and  thereby  invoke  the  aid  of  a  chancellor 
to  remove  a  cloud  resting  upon  his  title  to  the  land.  A  party  may 
now  avail  himsdf  of  either  the  legal  or  equitable  remedy. 

3.  In  proceedings  under  the  Act  of  June  10,  1893,  P.  L.  415,  for 
the  framing  of  an  issue  between  the  petitioner  and  the  respondents 
to  settle  their  respective  rights  in  and  to  a  two-acre  lot  of  ground, 
where  it  appeared  that  petitioner  occupied  a  house  on  a  part  of  the 
premises  and  where  there  was  nothing  to  show  that  there  had  been 
any  division  of  the  lot  or  that  any  other  person  was  in  adverse 
possession  of  the  rest  of  the  lot,  the  petitioner  had  such  poesession 
as  to  entitle  her  to  invoke  the  aid  of  the  act  for  the  ascertainment 
of  her  rights. 

4.  In  such  case  it  was  error  to  admit  in  evidence  a  will  purport- 
ing to  devise  a  part  of  the  land  to  respondents,  as  the  question  for 
determination  was  not  whether  respondents  had  title  to  the  prem- 
ises, but  whether  petitioner  had  possession  thereof,  with  disputed 
claim  of  title,  and  the  fact  that  petitioner  had  offered  some  evi- 
dence of  her  title  did  not  warrant  respondents  in  offering  evidence 
of  their  title. 

5.  The  fact  that  the  tenants  occupying  another  house  on  the  lot 
had  paid  rent  to  one  of  the  respondents,  was  not  admissible  in  evi- 
dence for  the  purpose  of  showing  actual  adverse  possession  in  her, 
as  she  must  first  establish  that  the  rent  was  properly  payable  to 
her  as  owner  of  the  part  of  the  lots  claimed  by  her,  and  this  could 
only  be  done  by  showing  that  she  had  title  to  the  premises,  evidence 
of  which  was  not  admissible. 

Argued  Sept.  26, 1917.  Appeal,  No.  128,  Oct.  T.,  1917, 
by  petitioner,  from  order  of  C.  P.  Venango  Co.,  Aug.  T., 
1916,  No.  55,  dismissing  petition  for  rule  to  show  cause 
why  an  issue  in  ejectment  should  not  be  framed,  in  re 
Petition  of  Mazie  E.  Bell,  for  rule  on  Margaret  Bollo, 
Widow,  and  John  M.  Sykes  and  Robert  F.  Glenn,  Execu- 
tors of  Charles  A.  Bollo,  deceased,  to  show  cause  why  an 
Issue  should  not  be  framed  in  ejectment  Before  Mss- 
TBBZAT,  Potter  Stbwabt,  Mosohziskbr  and  Fkazbi^ 
J  J.    Reversed. 

Petition  for  rule  to  show  cause  why  an  issue  in  eject- 

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BELL'S  PETITION.  497 

1918.]       Assignment  of  Errors — Opinion  of  the  Court, 
ment  should  not  be  framed  to  determine  title  to  land. 
Before  Cmswbll^  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  dismissed  the  petition.  Petitioner  ap- 
pealed. 

Errors  assifffied  were  rulings  on  evid^ice  and  in  dis- 
missing the  petition. 

Quincy  D.  Hastings,  for  appellant. — The  petitioner 
was  in  possession  of  the  real  estate,  and  was  therefore 
entitled  to  the  issue,  and  the  validity  or  invalidity  of  the 
respondent's  alleged  title  was  not  material:  Titus  v. 
Bindley,  210  Pa.  121 ;  Mildren  v.  Nye,  240  Pa.  78. 

John  L.  Neshit,  with  him  Robert  F.  CKenn,  for  appel- 
lees.— Petitioner  was  not  in  actual  possession  of  the  land 
in  dispute. 

Opinion  by  Mb.  Justice  Mestrbzat,  January  7, 1918 : 
This  is  the  petition  of  Mazie  E.  Bell  under  the  Act  of 
June  10, 1893,  P.  L.  415,  praying  for  a  rule  to  show  cause 
why  an  issue  shall  not  be  framed  between  the  petitioner 
and  the  respondents  to  settle  and  determine  their  respec- 
tive rights  and  title  in  and  to  a  lot  of  ground  containing 
about  two  acres  in  the  third  ward  of  the  City  of  Frank- 
lin, Venango  CJounty,  Pennsylvania. 

The  petition  alleges  that  the  petitioner  is  the  child  and 
heir  by  adoption  of  Ella  K.  Bollo,  deceased,  who  died  in- 
testate in  1905  leaving  a  husband,  Charles  A.  Bollo,  and 
no  children  besides  the  petitioner ;  that  Charles  A.  Bollo 
died  May  20, 1916 ;  that  Ella  K.  Bollo  at  the  time  of  her 
death  was  in  possession  as  owner  of  and  had  title  in  fee 
to  said  lot  of  ground ;  that  petitioner  and  Ella  E.  Bollo 
had  been  in  possession  of  said  land  since  1878  and 
petiticmer  has  the  legal  title  by  operation  of  the  law  of 
descents  and  adoption,  and  has  had  the  right  of  posses- 
sion since  the  death  of  Charles  A.  Bollo,  who  was  life 
Vol.  cclix — ^32 


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498  BELL'S  PETITION. 

Opinion  of  the  Court  [259  Pa; 

tenant  by  the  curtesy^  and  since  his  death  petitioner  has 
been  in  possession  of  the  land ;  and  that  the  respondents, 
Margaret  Bollo,  second  wife  and  widow  of  Charles  A. 
BollOy  and  the  executors  of  Charles  A.  Bollo,  deny  peti- 
tioner's title  and  right  of  possession  to  said  land. 

The  answer  denies  that  petitioner  is  the  child  and 
heir  by  adopticm  of  Ella  E.  Bollo,  and  avers  that,  while 
the  legal  title  to  the  land  was  in  Ella  E.  BoUo,  she  held 
it  as  trustee  for  her  husband,  to  whom  the  collateral 
heirs  of  Ella  E.  BoUo,  recognizing  his  rights,  conveyed 
the  title;  denies  that  Ella  E.  Bollo  ever  had  any  posses- 
sion save  that  had  by  her  husband;  denies  that  peti- 
tioner ever  was  in  possession  of  any  part  of  the  premises 
except  a  part  devised  to  her  by  Charles  A.  Bollo,  or  had 
any  right  of  possession  of  any  other  part;  and  alleges 
that  the  respondents  have  had  exclusive  i>ossession  of 
that  part  ever  since  Charles  A.  BoUo's  death. 

It  a);)pears  from  the  testimony  that  there  were  several 
dwelling  houses  and  a  greenhouse  on  the  lot  of  ground 
in  question.  During  the  lifetime  of  Charles  A.  Bollo,  he 
had  control  of  the  property  and  collected  the  rents, 
though  he  did  not  live  on  the  land.  The  petitioner  with 
her  husband  lived  in  one  apartment  of  a  three-apartment 
house  on  the  land  during  the  lifetime  of  Charles  A.  Bollo 
and  has  continued  to  live  there  since  his  death.  Neither 
of  the  respondents  live  or  have  lived  on  the  land.  The 
petitioner  testified  that  on  June  28,  1916,  shortly  after 
Bollo^s  death,  she  notified  the  tenants  in  the  other  houses 
to  pay  rent  to  her.  Since  Mr.  BoUo^s  death,  the  other 
tenants  of  the  apartment  house  have  paid  rent  to  the  pe- 
titioner, but,  notwithstanding  the  notices  given  by  her, 
the  tenants  on  the  other  part  of  the  land  have  paid  rent 
to  Mrs.  Bollo,  the  widow,  and  one  of  the  respondents. 
When  this  proceeding  was  instituted,  about  six  weeks 
after  Mr.  Bollo^s  death,  there  had  been  no  change  in  the 
tenants  and  no  effort  by  any  one  to  oust  any  of  them.  It 
appears  that  the  water  for  all  the  houses  on  tiie  tract 
was  procured  from  wells  thereon,  and  that,  since  Mr. 


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BELL'S  PETITION.  499 

1918.]  Oiunion  of  the  Court. 

Bollo^s  deathy  the  petitioner  has  paid  rent  for  water  for 
the  apartment  house  which  is  supplied  from  tanks  on 
other  property^  although  the  wells  are  on  the  lot  in  ques- 
tion. 

At  the  hearing  respondents  put  in  evidence,  against 
the  objection  of  the  petitioner,  the  will  of  Charles  A. 
Bollo.  It  devises  to  the  petitioner  the  three-apartment 
house  with  a  lot  extending  five  feet  on  each  side  of  the 
house  and  one  hundred  and  fifty  feet  deep,  being  a  part 
of  the  lot  in  controversy.  The  residuary  estate  is  de- 
vised to  the  widow,  Margaret  Kollo,  with  a  devise  over 
in  case  of  her  death  before  that  of  the  testator.  The  lot 
was  not  divided  during  the  lifetime  of  Mr.  Bollo. 

The  Common  Pleas  discharged  the  rule  to  show  cause 
why  an  issue  should  not  be  framed,  and  dismissed  the 
petition  on  the  ground  "that  the  petitioner  has  not  such 
possession  of  the  lands  described  in  the  petition,  concern- 
ing which  there  is  any  dispute  between  her  and  the  re- 
spondents, as  the  statute  contemplates  as  requisite  in 
6rder  to  give  the  court  jurisdiction  under  the  Act  of 
1893."  The  court  below  was  of  opinion  that  the  peti- 
tioner was  in  possession  only  of  that  part  of  the  prem- 
ises known  as  the  three-apartment  house  lot,  as  to  which 
respondents  do  not  deny  her  title  under  the  will  of  Mr. 
Bollo,  and  that  as  to  the  residue  of  the  lot  in  question 
her  remedy  was  by  a  suit  in  ejectment.  The  petitioner 
has  appealed,  assigning  for  error  (a)  the  entire  opinion 
and  judgment  of  the  court,  and  (b)  the  admission  in  evi- 
dence of  the  will  of  Charles  A.  Bollo. 

The  contention  of  the  api>ellant  is  that  she  has  posses- 
sion of  the  entire  lot  including  the  part  claimed  by  Mrs. 
Bollo ;  that  she  lives  on  it  and  the  tenants  in  the  other 
houses  are  her  tenants  by  virtue  of  the  title  set  forth  in 
the  petition ;  that  respondents'  claim  is  to  a  constructive 
possession  based  on  the  theory  that  Mr.  Bollo  owned  the 
land  and  devised  it  to  them,  which  gave  them  possession ; 
that  such  claim  can  be  sustained  only  by  going  into  the 
question  of  respondents'  title,  which  is  not  permissible 


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500  BELL'S  PETITION. 

Opinion  of  the  Court.  [259  Pa. 

in  this  proceeding;  that  it  was,  therefore,  error  to  admit 
the  will  in  evidence,  and  the  fact  that  the  tenants  wrong- 
fully paid  rent  to  Mrs.  Bollo  cannot  give  her  possession 
or  destroy  the  possession  of  the  appellant. 

The  position  of  the  appellees  is  that  the  will  divided 
the  lot,  that  api>ellant  took  possession  only  of  the  part 
devised  to  her  and  does  not  reside  on  the  part  of  the  lot 
which  the  appellees  claim,  that  Mrs.  Rollo  has  had  pos- 
session of  that  part  of  the  lot  since  her  husband's  death, 
and  that  inquiry  into  appellant's  title  cannot  be  made  in 
this  proceeding.  The  appellees  concede  that  appellant 
is  living  on  the  part  of  the  lot  occupied  by  the  apartment 
house  to  which  they  do  not  dispute  her  title,  and  claim 
that,  as  to  the  residue  of  the  lot,  her  remedy,  if  any,  is  by 
an  action  of  trespass  or  ejectment. 

Section  2  of  the  Act  of  1893,  under  which  the  pi^oceed- 
ing  was  instituted,  provides  as  follows :  "When  any  per- 
son or  persons,  natural  or  artificial,  shall  be  in  posses- 
sion of  any  lands  or  tenements  in  this  Commonwealth, 
claiming  to  hold  or  own  possession  of  the  same  by  any 
right  or  title  whatsoever,  which  right  or  title  or  right  of 
possession  shall  be  disputed  or  denied  by  any  person  or 
persons  as  aforesaid,  it  shall  be  lawful  for  any  such  per- 
son to  apply  by  bill  or  petition  to  the  Court  of  Ccwnmon 
Pleas  of  the  county  where  such  land  is  situate,  setting 
forth  the  facts  of  such  claim  of  title  and  the  right  of  pos- 
session and  the  denial  thereof  by  the  person  or  persons 
therein  named,  and  thereupon  the  said  court  shall  grant 
a  rule  upon  such  person  or  persons,  so  denying  such 
right,  title  or  right  of  possession,  to  appear  at  a  time  to 
be  therein  named  and  show  cause  why  an  issue  shall  not 
be  framed  in  said  court,  between  the  parties,  to  settle 
and  determine  their  resi>ective  rights  and  title  in  and  to 
said  lands." 

This  is  not  a  proceeding  recognized  by  the  common 
law,  but  is  authorized  solely  by  legislative  enactment. 
Prior  to  the  legislation  conferring  jurisdiction  at  law,  a 
suitor  was  required  to  seek  relief  by  a  bill  quia  timet 


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BELL'S  PETITION.  501 

1918.]  Opinion  of  the  Court. 

tiled  on  the  equity  side  of  the  court  and  thereby  invoke 
the  aid  of  a  chancellor  to  remove  a  cloud  resting  upon 
his  title  to  the  land.  A  party  may  now  avail  himself  of 
either  the  legal  or  equitable  remedy :  Hutchinson  v.  Den- 
nis, 217  Pa.  290.  The  present  proceeding  being  statu- 
tory, it  follows  that  the  provisions  of  the  statute  must  be 
complied  with  before  the  rule  is  granted  or  an  issue  is 
awarded.  The  jurisdictional  facts,  required  by  the  act, 
must  be  averred  in  the  petition  and  relief  will  then  be 
granted  if  "it  shall  appear  to  the  court  that  the  facts  set 
forth  in  the  petition  are  true." 

A  party  may  invoke  the  aid  of  the  Act  of  1893  if  he  is 
"in  possession  of  any  lands  or  tenements  in  this  Com- 
monwealth, claiming  to  hold  or  own  possession  of  the 
same  by  any  right  or  title  whatsoever  which  right  or  title 
or  right  of  possession  shall  be  disputed  or  denied  by  any 
I>erson  or  persons."  These  facts  are  jurisdictional  and 
must  be  averred  in  the  petition  and  established  to  the 
satisfaction  of  the  court  before  a  party  is  entitled  to  an 
issue  to  determine  the  right  or  title  of  the  parties  to 
the  land  in  dispute.  This  has  been  determined  in  many 
cases,  among  which  may  be  noted  Titus  v.  Bindley,  210 
Pa.  121;  Fearl  v.  Johnstown,  216  Pa.  205;  Heppenstall 
V.  Leng,  217  Pa.  491;  Putt  v.  Africa,  232  Pa,  182;  Ear- 
hart  V.  Marshall,  233  Pa.  365;  McCormick  v.  Berkey, 
238  Pa.  264,  and  Mildren  v.  Nye,  240  Pa.  72. 

The  jurisdictional  fact  at  issue  in  the  present  case  is 
whether  the  petitioner,  the  appellant  here,  is,  within  the 
meaning  of  the  statute,  in  possession  of  the  lot  in  con- 
troversy. The  court  was  of  opinion  that  the  petitioner 
did  not  have  "such  possession as  the  statute  con- 
templates," and  discharged  the  rule  for  the  issue.  With 
this  conclusion  we  do  not  agree.  We  have  stated  sub- 
stantially the  pleadings  and  the  contention  of  the  par- 
ties. The  learned  court  was  in  error,  we  think,  in  ad- 
mitting in  evidence  the  will  of  Charles  A.  BoUo.  As 
has  been  pointed  out,  the  single  issue  for  determination 
in  the  proceeding  was  the  possession  and  not  the  title  or 


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502  BELL 'S  PETITION. 

Opinion  of  the  Court  [25U  Pa. 

ownership  of  the  land  in  controversy.  Whether  Mrs. 
Bell;  the  petitioner^  or  Mr.  BoUo  and  since  his  death  his 
devisee,  Mrs.  Rollo,  has  the  title  to  the  premises  is  en- 
tirely outside  the  issue,  and  evidence  to  establish  the  title 
of  either  of  the  parties  was  immaterial,  and,  when  offered, 
should  not  have  been  admitted.  It  is  true,  both  the  pe- 
tition and  answer  claim  title  in  the  respective  parties, 
which  is  required  by  the  statute,  but  proof  of  title  in 
either  is  not  required  nor  permissible  in  determining  the 
issue  in  this  proceeding.  So  far,  therefore,  as  the 
learned  court  admitted  such  proof  by  either  party,  it  was 
error,  and  the  proof  cannot  be  considered  in  determining 
the  petitioner's  right  to  the  issue. 

The  petitioner  averred  that  she  was  in  possession  and 
owner  in  fee  of  the  entire  lot  of  ground,  and  set  forth 
how  she  acquired  title.  The  answer  averred  that 
Charles  A.  Rollo  owned  in  fee  and  had  possession  of  the 
whole  lot  at  the  time  of  his  death,  that  he  devised  the  lot 
to  his  widow,  except  the  part  occupied  by  the  three- 
apartment  house  ^^of  which  said  part,  the  said  Mazie  E. 
Bell  has  had  sole  and  exclusive  possession  since  the 
death  of  said  Charles  A.  Rollo.^'  It  is  therefore  admitted 
by  the  appellees  that  appellant  has  had  actual  possession 
of  a  part  of  the  lot  in  question  since  May  20, 1916,  when 
CharljBS  A.  Rollo  died.  The  petition  avers,  what  is  not 
and  could  not  well  be  denied  in  the  answer,  that,  as  the 
act  provides,  the  appellant  has  claimed  to  have  not  only 
the  possession  but  the  title  to  the  whole  lot.  It  is  wholly 
immaterial  whether  she  claimed  title  or  right  of  posses- 
sion as  the  adopted  daughter  of  Ella  K.  Rollo  who  had 
the  legal  title  when  she  died  intestate,  or  from  any  other 
source.  The  jurisdictional  fact  required  to  be  averred 
is  that  petitioner  is  ^^claiming  to  hold  or  own  possession 
of  the  same  by  any  right  or  title  whatsoever,"  which  is 
disputed.  The  validity  of  the  title  is  not  involved  in  the  is- 
sue. What,  therefore,  is  the  eflfect  of  the  admission  in  the 
appellees'  answer  that  the  legal  title  to  the  entire  lot  was 
in  Ella  K.  Rollo  when  she  died  in  1906  and  that  appellant 


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BELL'S  PETITION.  503 

1918.]  Opinion  of  the  Court, 

is  and  has  been  since  Charles  A.  BoUo^s  death  in  actual 
I)ossession  of  a  part  of  the  lot  to  which  she  claims  title  and 
right  of  possession  to  the  whole  premises?  The  evidence 
shows  that  no  division  of  the  lot  was  made  in  the  lifetime 
of  Mr.  Bollo.  It  was  held  and  used  by  him  as  one  prop- 
erty^  and  continues  to  be  such  unless  it  was  divided  by 
Mr.  BoUo's  will,  upon  which  the  appellees  rely  to  make 
the  division.  But  obviously  this  cannot  be  the  effect  of 
the  will  if  Bollo  was  simply  tenant  by  the  curtesy,  as  his 
title  died  with  him,  and  he  could  not  devise  the  premises 
or  any  part  of  them.  Whether  he  had  the  equitable  title 
to  the  premises,  as  contended  by  the  api>ellees,  and,  there- 
fore, could  devise  the  lot  involves  the  question  of  title, 
which,  as  already  shown,  cannot  be  inquired  into  or  de- 
termined in  this  proceeding.  The  position  of  the  par- 
ties, so  far  as  affects  the  right  of  the  appellant  to  the  is- 
sue, is  precisely  the  same  as  if  Bollo  had  devised  the 
whole  instead  of  only  a  part  of  the  lot  to  his  widow,  and 
appellant  is,  and  was  prior  to  BoUo's  death,  as  now  con- 
ceded, in  actual  possession  of  a  part  and  claiming  the 
whole  property.  In  other  words,  Bollo's  will  cannot  af- 
fect the  right  to  the  issue  in  either  instance  and  must  be 
eliminated  from  the  case. 

If,  as  we  hold,  the  will  has  no  place  in  the  case  and  the 
properly  remains  undivided,  the  actual  possession  of  a 
part  of  the  premises,  claiming  the  whole,  draws  with  it, 
under  the  pleadings  and  the  circumstances  disclosed  by 
the  competent  evidence,  within  the  purview  of  the  Act 
of  1893,  the  possession  of  the  entire  tract  and  justifies 
the  granting  of  the  issue.  The  statute  does  not  prescribe 
the  kind  or  character  of  possession  that  x>etitioner  must 
have  to  confer  jurisdiction  on  the  court  to  award  an  issue, 
but  provides  simply  that  he  must  be  in  possession  of  the 
premises,  with  disputed  claim  of  title.  It  is  contended, 
however,  that  Mrs.  Bollo  is  in  possession  of  the  part  of 
the  lot  claimed  by  her,  and  that  since  her  husband's  death 
the  tenants  under  Bollo  attorned  to  her  and  have  since 
accounted  to  her  for  the  rents.  It  is  admitted  that  she  does 


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504  BELL'S  PETITION. 

Opinion  of  tho  Court.  [259  Pa. 

not  reside  on  the  premises  in  dispute.  The  conduct  of  the 
tenants  cannot  avail  Mrs.  Bollo  or  the  other  respondents. 
The  only  possession  they  can  have  is  such  as  would  fol- 
low and  be  incident  to  the  ownership  of  the  land  in  dis- 
pute acquired  by  Rollo^s  will^  but,  as  observed  above,  the 
title  to  the  premises  cannot  be  inquired  into  in  this  pro- 
ceeding for  any  purpose^  and  the  will  was  not  admissible 
to  show  title  in  Mrs.  BoUo  for  any  purpose  germane  to 
the  issue  before  the  court.  The  court  was  apparently  of 
this  opinion,  but  admitted  the  will  because  the  petitioner 
had  offered  ^^some  evidence  of  her  title  or  the  basis  of  it" 
The  petitioner  may  show  how  she  claims  title  or  the 
right  of  possession,  but,  as  indicated  above,  evidence  on 
her  part  to  establish  her  title  was  not  admissible  for  that 
purpose,  and,  if  c^ered,  should  have  been  excluded. 
That  it  was  erroneously  admitted  was  no  justification 
for  permitting  the  respondents  to  show  their  title. 

The  payment  of  rent  to  Mrs.  Bollo  by  some  of  the  ten- 
ants was  not  admissible  to  show  actual  adverse  posses- 
sion in  her  as  she  must  first  establish^  that  the  rent  was 
properly  payable  to  her  as  owner  of  the  part  ot  the  lot 
claimed  by  her:  Rankin  v.  Tenbrook,  5  Watts  386; 
Sheaffer  v.  Eakman,  56  Pa.  144 ;  and  this  could  only  be 
done  by  showing  that  she  had  title  to  the  premises.  This 
she  could  not  be  i)ermitted  to  do. 

The  order  of  the  court  below  dismissing  the  petition 
for  an  issue  is  reversed,  and  the  court  is  directed  to  grant 
the  prayer  of  the  petition  and  award  an  issue  as  therein 
prayed  for. 


Ghabot  V.  Pittsburgh  Plate  Glass  Company, 
Appellant. 

Negligence — Master  and  servant — Safe  place  to  work — Proximate 
cause — Minors  under  sixteen^— Employment — Factory  Act  of  AprU 
29,  1909,  P.  L.  28S'--V%olation— Duplicate  lists— Posting  of  lists — 
Burden  of  proof — Exception, 

1.  In  an  action  ag^ainst  a  glass  manufacturing  company  to  re* 
cover  for  personal  injuries  sustained  by  an  employee,  where  it  ap- 


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CHABOT  V.  PITTSBURGH  P.  GLASS  CO.,  Appel.  505 
1018.]  Syllabua—Verdict. 

peared  that' plaintiff  was  engaged  in  hauling  glass  plates  to  the 
cutter  on  a  small  truck  and  placing  the  glass  in  racks  behind  the 
cutter's  table;  that  while  plaintiff  was  removing  a  plate  from  the 
truck  he  collided  with  the  cutter,  a  fellow  workman,  causing  the 
plate  to  fall  and  injure  plaintiff's  foot;  that  there  was  a  space  of 
only  three  and  one-half  feet  between  the  rack  and  the  cutter's 
table;  that  such  space  was  insufficient  for  both  plaintiff  and  the 
cutter  to  work  in,  and  the  insufficiency  of  the  space  was  the  cause 
of  plaintiff's  coUision  with  the  cutter,  there  was  sufficient  evidence 
that  defendant  had  not  provided  plaintiff  with  a  reasonably  safe 
place  in  which  to  work  and  a  verdict  for  the  plaintiff  will  be  sus- 
tained. 

2.  The  provision  of  the  Factory  Act  of  April  29,  1909,  P.  L.  283, 
requiring  the  keeping  and  posting  of  lists  of  minors,  is  mandatory 
and  not  merely  directory.  Where  a  minor  under  the  age  of  six- 
teen years  is  employed  in  a  factory  and  is  injured,  the  burden  is 
upon  the  employer,  in  an  action  for  such  injuries,  to  show  that  in 
employing  su  \  minor  it  brought  itself  within  the  exceptions  to  the 
express  provisions  of  the  statute,  prohibiting  the  employment  of 
minors  of  this  age  in  its  factory,  and  if  it  fails  to  meet  this  burden 
the  law  refers  the  injury  sustained  by  the  onployee  to  the  criminal 
wrong  of  the  employer  as  its  proximate  cause. 

3.  Where  in  such  case  it  appeared  that  plaintiff  was  a  minor 
under  the  age  of  sixteen  years  and  that  defendant  had  violated  the 
Factory  Act  of  April  29, 1909,  P.  L.  283,  in  failing  to  keep  two  lists 
of  minors  under  such  age  employed  in  the  establishment,  and  in 
failing  to  post  one  list  in  the  department  in  which  plaintiff  worked, 
the  defendant  was  guilty  of  negligence  and  such  negligence  was  in 
law  the  proximate  cause  of  the  accident  and  a  verdict  and  judg- 
ment for  plaintiff  were  sustained. 

Argued  Sept.  26, 1917.  Appeals,  Nos.  5  and  6,  Oct.  T., 
1917,  by  defendant,  from  judgment  of  C.  P.  Armstrong 
Co.,  Dec.  T.,  1915,  No.  189,  on  verdicts  for  plaintiffs,  in 
case  of  Frederick  Chabot  and  Paul  Chabot  by  his  father 
and  next  friend,  Frederick  Chabot,  v.  Pittsburgh  Plate 
Glass  Company.  Before  Mestebzat,  Potter,  Stewart, 
MoscHZiSKER  and  Frazer,  JJ.    Affirmed. 

Trespass  to  recover  damages  for  personal  injuries. 
Before  King,  P.  J. 
The  opinion  of  the  Supreme  Court  states  the  facts. 
Verdict  for  plaintiff,  Frederick  Chabot,  tor  f741.51, 


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506  CHABOT  v.  PITTSBURGH  P.  GLASS  CO.,  Appel. 

Assignment  of  Errors — Opinion  of  the  Court.  [269  Pa. 
and  for  plaintiff;  Paul  Chabot^  for  f4,258.49'and  jndg- 
mento  thereon.    Defendant  appealed. 

Errors  assigned  were  in  refusing  to  direct  a  verdict 
for  defendant  and  in  refusing  to  enter  judgment  for  de- 
fendant n.  o.  V. 

Wm.  8.  Dalzell,  of  Dalzell,  Fisher  d  Hauokins,  with 
him  R.  L.  Ralston,  for  appellants. — The  defendant  was 
not  guilty  of  negligence:  Miller  v.  American  Bridge  Ck)., 
216  Pa.  559;  Coleman  v.  Keenan,  223  Pa.  29;  Wilson  v. 
Brown,  222  Pa.  364;  lams  v.  Glass  C5o.,  251  Pa.  439. 

Harry  C.  Oolden,  with  him  E.  0.  Oolden,  for  appellees. 
— No  list  of  minors  in  the  employ  of  the  defendant  was 
kept  on  file,  as  required  by  Section  7  of  the  Act  of  April 
29,  1909,  P.  L.  283.  The  defendant  is,  therefore,  liable 
for  injuries  to  the  minor :  Krutlies  y.  Bulls  Head  Coal 
Co.,  249  Pa.  162. 

When  the  employment  of  a  minor  is  shown  to  be  il- 
l^;al  there  is  evidence  of  negligence,  and  if  the  injury 
complained  of  occur  in  the  course  of  the  minor's  services 
under  such  unlawful  circumstances,  the  law  will  refer 
the  injury  to  the  original  wrong  for  its  proximate  cause : 
Stehle  V.  Jaeger  Automatic  Machine  Co.,  225  Pa.  348; 
Syneszewski  v.  Schmidt,  153  Mich.  438;  Krutlies  v. 
Bulls  Head  Coal  Co.,  249  Pa.  162;  Stehle  v.  Jaeger  Au- 
tomatic Machine  Co.,  220  Pa.  617;  Lenahan  v.  Pittston 
Coal  Mining  Co.,  218  Pa.  311 ;  Sullivan  v.  Hanover  Cord- 
age Co.,  222  Pa.  40 ;  McElhone  v.  Philadelphia  Quartette 
Club,  53  Pa.  Superior  Ct  262. 

Opinion  by  Mb.  Justice  Mbstbbzat,  January  7, 1918 : 
This  judgment  is  so  clearly  right,  as  demonstrated  by 
the  learned  trial  judge  in  his  opinion  refusing  a  new  trial 
and  judgment  non  obstante  veredicto  for  defendant,  that 
no  extended  discussion  of  the  questions  at  issue  is  neces- 
sary.   The  action  was  brought  by  an  employee  against 


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CHABOT  ^^  PITTSBURGH  P.  GLASS  CO.,  Appel.  5C7 
1018.]  Opinion  of  the  Court 

his  employer  to  recover  damages  for  injuries  which  the 
former  alleged  he  sustained  by  reason  of  the  latter's  neg- 
ligence. The  negligence  averred  was  the  failure  to  fur- 
nish the  plaintiff  a  reasonably  safe  place  to  perform  the 
service  for  which  he  was  employed,  and  that  defendant 
engaged  the  plaintiff  to  do  work  for  which  a  boy  of  his 
age,  fourteen  years,  should  not  have  been  employed.  It 
appears  that  the  plaintiff  was  employed  in  defendant 
company's  glass  plant  at  Ford  City,  and  his  work  con- 
sisted in  hauling  plates  of  polished  glass  from  the  wash- 
house  to  the  cutters'  department  on  a  small  truck  and 
placing  the  glass  in  racks  immediately  behind  and  near 
the  cutters'  table.  On  the  day  of  the  accident  and  while 
the  plaintiff  was  removing  a  plate  of  glass  from  the 
truck,  he  collided  with  the  cutter  by  reason  of  an  alleged 
lack  of  space  where  they  had  to  do  their  work,  which 
caused  the  plate  of  glass  in  the  hands  of  the  plaintiff  to 
fall,  striking  the  latter's  foot  and  injuring  it.  The 
learned  counsel  for  appellant  contend  that  there  was 
ample  room  between  the  cutters'  table  and  the  rack  with- 
in which  the  plaintiff  and  the  cutter  could  move  in  per- 
fect safety  and  the  plaintiff  could  perform  the  work  re- 
quired, and  that  the  proximate  cause  of  the  plaintiff's 
injuries  was  a  pure  accident  resulting  from  a  collision 
between  the  two  employees  moving  about  in  the  ordinary 
pursuit  of  their  duties.  The  evidence  was  sufficient  to 
justify  submitting  the  question  to  the  jury,  and  in  doing 
so  the  learned  trial  judge  said :  "Now  the  plaintiffs  con- 
tend that  this  space  of  three  and  a  half  feet  between  the 
rack  and  the  cutters'  table  was  insufficient  in  size  and 
room  for  Paul  Chabot  to  do  his  work,  the  work  that  he 
was  engaged  to  do  and  which  he  was  to  do.  That  be- 
cause it  was  so  narrow,  the  collision  occurred  between 
him  and  Mr.  Mause  while  they  were  both  engaged  in  do- 
ing their  respective  work  there,  and  that  therefore  this 
place,  where  it  was  necessary  for  both  Paul  Chabot  and 
Mr.  Mause  to  work  in  the  performance  of  their  duty,  was 
not  a  reasonably  safe  place  for  Paul  Chabot  to  do  his 


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508  CHABOT  v.  PITTSBURGH  P.  GLASS  CO.,  Appel. 

Opinion  of  the  Court.  [259  Pa. 

work,  and  that  by  i-eason  thereof  an  injury  resulted  to 
him,  and  that  this  failure  of  the  defendant  to  provide 
and  furnish  at  this  place  a  reasonably  safe  place  for  him 
to  do  his  work,  was  negligence  on  the  part  of  the  defend- 
ant company,  and  that  this  negligence  of  the  company 
was  the  sole  and  proximate  cause  of  the  injury.  I  say 
to  you,  gentlemen,  that  that  is  the  claim  and  allegation 
and  contention  of  the  plaintiflFs  in  this  case.  When  we 
speak  of  the  proximate  cause  we  mean  by  that  term  that 
the  injury  must  be  the  natural  and  probable  consequence 
of  the  alleged  negligence — such  a  consequence,  as  under 
the  circumstances  of  the  case,  might  and  ought  to  have 
been  foreseen  as  likely  to  occur,  by  ordinarily  careful 
and  prudent  persons  and  by  ordinarily  careful  companies* 
Therefore,  gentlemen,  this  is  an  important  question  of 
fact  in  this  case  for  you  to  determine  under  the  evidence, 
namely,  did  this  defendant  company  fail  to  provide  a 
reasonably  safe  place  for  its  employee,  Paul  Chabot,  to 
work  and  do  his  work — the  usual  and  ordinary  work  that 
he  was  employed  and  directed  to  do  by  the  company/* 
The  jury  returned  a  special  finding  "that  the  defendant 
company  was  guilty  of  negligence  in  not  providing  Paul 
Chabot  a  reasonably  safe  place  to  work." 

The  second  question  raised  by  the  defendant  company 
is  whether  it  was  guilty  of  such  a  breach  of  the  Act  of 
April  29,  1909,  P.  L.  283,  as  to  convict  it  of  negligence 
as  a  matter  of  law.  The  court  below  so  held  and  in  this 
conclusion  we  concur.  Section  1  of  the  act  prohibits 
the  employment  of  any  minor  under  the  age  of  eighteen 
years  in  any  factory,  except  under  certain  conditions 
specified  in  the  act.  Section  7  forbids  the  employment 
of  a  minor  under  sixteen  unless  the  employer  procures 
and  keeps  on  file,  and  accessible  to  the  deputy  factory  in- 
spectors, an  employment  certificate,  as  therein  provided, 
issued  to  the  minor,  "and  keeps  two  lists  of  all  minors 
under  the  age  of  sixteen  years  employed  in  or  for  his  or 
her  establishment ;  one  of  said  lists  to  be  kept  on  file  in 
the  office  of  the  employer,  and  one  to  be  conspicuously 


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CHABOT  V.  PITTSBURGH  P.  GLASS  CO.,  Appel.  509 
1918.]  Opinion  of  the  Courf. 

posted  in  each  of  the  several  departments  in  or  for  which 
minors  are  employed."  It  is  conceded  that  the  two  lists 
of  minors  employed  in  the  factory  were  not  kept  and  that 
one  list  was  not  posted  in  the  department  in  which  the 
plaintifif  worked.  It  is,  therefore,  clear  that  this  provi- 
sion of  the  Act  of  1909  was  violated  by  the  defendant 
company.  It  is  contended,  however,  that  the  employ- 
ment is  legal  when  the  employment  certificate  has  been 
procured,  and  that  the  filing  of  the  certificate  and  the 
keeping  and  postiag  of  the  lists  of  minors  is  simply  di- 
rectory. There  is  nothing  in  the  act  nor  any  reasonable 
construction  of  it  that  will  support  the  contention.  The 
language  of  this  section  of  the  statute  is  mandatory 
and,  whatever  the  purpose  may  have  been,  it  is  clear  that 
the  legislative  intent  was  that  the  posting  of  the  lists 
of  minors  in  the  several  departments  of  the  work  is  as 
imperative  as  any  other  mandate  of  the  statute.  The 
burden  was  upon  the  defendant  company  to  show  that 
in  employing  the  plaintiff  it  had  brought  itself  with- 
in the  exceptions  to  the  express  provisions  of  the  stat- 
ute prohibiting  the  employment  of  minors  of  this  age  in 
any  factory,  and,  having  failed  to  meet  this  burden,  it 
follows  that  the  plaintiff  was  injured  while  employed  in 
the  defendant's  factory  in  violation  of  the  statute.  This 
was  a  negligent  act  for  which  the  defendant  was  liable, 
and,  as  we  have  uniformly  ruled,  the  causal  connection 
being  shown,  the  law  refers  the  injury  sustained  by  the 
employee  to  the  original  wrong  as  its  proximate  cause. 
The  validity  of  the  employment  certificate  becomes  un- 
important in  the  view  of  the  case  taken  by  the  court  be- 
low and  in  which  we  concur. 
Judgment  afQrmed. 


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510  GLENN  v.  KITTANNING  BRWG.  CO.  et  al.,  Appel. 

Syllabus.  [259  Pa. 


Glenn  v.  Kittanning  Brewing  Company  et  aL, 
Appellants. 

Corporations — Directors — Fight  for  control — Issuance  of  stock — 
Purchase  by  directors  present  at  meeting  —  Right  of  stockholders 
to  participate  in  issue — Setting  aside  of  issue — Trust — Fraud — 
Remedy  at  law — Equity — Jurisdiction — BUI  in  equity  hy  stock- 
holder— Injunction. 

1.  While  the  general  rule  is  that  a  stockholder  is  not  warranted 
in  proceeding  as  an  individual  to  redress  a  wrong  done  to  the  cor- 
poration»  without  a  formal  demand  and  refusal  of  the  corporation 
to  bring  proper  action^  yet  stockholders  are  not  required,  either  in 
law  or  in  equity,  to  do  a  vain  or  foolish  thing,  and  where  the  wrong- 
doers are  the  majority  of  the  board  of  directors,  who  committed 
the  wrong  complained  of,  it  is  not  reasonable  to  suppose  that  a  de- 
mand upon  them  to  bring  corporate  action  would  produce  results, 
and  under  such  circumstances  stockholders  are  justified  in  institut- 
ing proceedings  in  their  own  name,  without  first  demanding  action 
on  the  part  of  the  corporate  officers. 

2.  Where  the  question  of  the  control  of  a  corporation  is  involved, 
the  remedy  at  law  for  damages  for  the  improper  sale  of  stock  is  in- 
adequate, and  where  an  averment  of  fraud  on  the  part  of  those 
having  management  of  the  company  appears,  as  against  the  rights 
or  the  interest  of  the  stockholders,  a  court  of  equity  has  jurisdic- 
tion to  inquire  into  the  transaction  and  make  such  decree  as  the 
circumstances  may  warrant. 

3.  The  directors  of  a  corporation  stand  in  the  position  of  trus- 
tees for  the  entire  body  of  stockholders,  and  while  stock  owned  by 
a  director  is  his  individual  property,  to  be  dealt  with  as  he  sees  fit, 
yet  when  he  acts  in  his  official  position  he  is  acting  not  merely  as 
an  individual  but  as  representative  of  others  and  is  prohibited  from 
taking  advantage  of  his  position  for  his  x>cr8onal  profit  or  benefit 
to  the  detriment  of  the  stockholders  whom  he  represents. 

4.  The  directors  of  a  corporation  are  bound  to  give  stockholders 
notice  of  a  new  issue  of  stock  and  an  opportunity  to  subscribe  for 
the  stock  in  proportion  to  their  present  holdings,  although  such 
issue  may  be  long  after  the  business  of  the  corporation  was  begun ; 
and  where  the  directors  fail  to  give  such  notice,  but  purchase  the 
stock  themselves  for  the  purpose  of  gaining  control  of  the  corpora- 
tion, the  issue  may  be  set  aside  at  the  instance  of  a  stockholder. 

5.  In  a  suit  in  equity  brought  by  a  stockholder  of  a  brewing 
company  on  behalf  of  himself  and  other  stockholders  who  might 


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GLENN  V.  KITTANNING  BRWG.  CO.  et  al.,  Appel.  511 
1918.]  SyUabus — ^Assignment  of  Errors, 

join,  praying  for  a  declaration  that  a  certain  stock  certificate  is- 
sued to  a  director  of  the  company  was  invaUd,  it  appeared  that  the 
stockholders  and  directors  had  been  split  into  two  factions,  and 
that  a  majority  of  the  board  of  directors  owned  and  controlled  only 
a  minority  of  the  stock  while  the  other  directors  owned  or  con- 
trolled the  majority.  At  a  meeting  of  the  board  attended  by  the 
directors  in  sympathy  with  the  minority  interests,  an  issue  of  250 
shares  of  treasuiy  stock  was  authorized,  in  pursuance  of  which  the 
fifty  shares  in  question  were  issued  to  one  of  the  directors  present, 
which  gave  the  directors  voting  for  the  issue  control  of  a  majority 
of  the  stock.  No  opportunity  was  given  the  other  stockholders, 
including  the  plaintiff,  to  take  up  any  part  of  the  new  issue.  De- 
fendants contended  that  the  stock  was  issued  to  put  the  corporation 
in  funds  to  pay  a  note  which  the  company  had  endorsed.  There 
were  other  assets  available  for  payment  of  the  note.  Held,  (1) 
the  finding  that  the  issue  was  for  the  purpose  of  gaihing  control 
of  the  corporation  was  amply  supported  by  the  evidence;  (2)  even 
had  there  been  sufficient  reason  for  the  issuance  of  the  new  stock, 
the  directors  had  no  right  to  subscribe  therefor  without  first  notify- 
ing the  stockholders  and  giving  them  an  opportunity  to  take  up  the 
stock  in  proportion  to  their  present  holdings;  (8)  under  the  cir- 
cumstances, the  fact  that  no  previous  demand  was  made  by  the 
plaintiffs  on  the  corporation  to  take  action  in  the  matter  is  imma- 
terial, and  (4)  the  decree  granting  the  relief  prayed  for  was  prop- 
erly entered. 

Argued  Sept.  26,  1917.  Appeals,  Nos.  28,  29  and  30, 
Oct.  T.,  1917,  by  defendants,  from  decree  of  C.  P.  Arm- 
strong Co.,  Sept.  T.,  1916,  No.  203,  awarding  an  injunc- 
tion, in  case  of  Joseph  W.  Glenn  et  al.  v.  The  Kittanning 
Brewing  Company,  a  corporation  under  the  laws  of 
Pennsylvania,  George  W.  Reese,  F.  B.  Stage  and  Dr.  S. 
A.  S.  Jessop.  Before  Mbstrbzat,  Potter,  Stewart, 
MosGHZiSKBR  and  Frazbr,  JJ.    Affirmed. 

Bill  in  equity  for  an  injunction.     Before  King,  P.  J. 
The  opinion  of  the  Supreme  Court  states  the  facts. 
The  court  on  final  hearing  awarded  an  injunction  as 
prayed  for.    Defendants  appealed. 

Errors  assigned  were  in  dismissing  exceptions  to  vari- 
ous findings  of  fact  and  conclusions  of  law,  and  the  de- 
cree of  the  court. 


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512  GLENN  v.  KITTANNING  BRWG.  CO.  et  al.,  AppeL 

Arguments.  [259  Pa. 

Harry  C.  OoUen,  with  him  John  E.  Malone,  Bernard 
J.  Myers  and  /.  H.  Painter^  for  appellants. — The  plain- 
tiffs have  an  adequate  remedy  at  law.  The  stock  which 
was  issued  was  not  a  new  issue,  but  part  of  the  original 
stock.  If  the  stock  has  been  sold  for  less  than  the  fair 
value,  the  plaintiff's  remedy  is  by  suit  at  law  for  damages 
or  in  equity  for  an  accounting  f<H*  profits  made  cm  the 
stock :  Reese  v.  The  Bank  of  Montgomery  Co.,  31  Pa.  78 ; 
Bank  of  Montgomery  v.  Reese,  26  Pa.  143;  Curry  v. 
Scott,  54  Pa.  270;  Shellenberger  v.  Patterson,  108  Pa. 
30;  Strickler  v.  McElroy,  45  Pa.  Superior  Ct.  165; 
Provident  Trust  Co.  v.  Geyer,  248  Pa.  423;  Hechelman 
V.  Geyer,  248  Pa.  430 ;  Hechelman  v.  Geyer,  252  Pa.  123 ; 
Monongahela  Valley  Brewing  Co.  v.  Beedle  et  al.,  63  P. 
L.  J.  783. 

The  directors  unquestionably  have  a  legal  right  to  sell, 
or  authorize  the  sale  of,  unissued  stock :  Reese  v.  Bank 
of  Montgomery  Co.,  31  Pa.  78;  Curry  v.  Scott,  54  Pa. 
270;  Shellenberger  v.  Patterson,  168  Pa.  30. 

A  desire  or  attempt  to  gain  control  of  the  corporation, 
and  of  the  corporate  election,  is  not,  in  itself,  unlawful: 
Hughes  V.  Citizens'  E.  L.,  H.  &  P.  Co.,  226  Pa.  95;  Gal- 
lagher V.  McAdams,  49  Pa.  Superior  Ct.  81. 

The  plaintiffs  have  no  standing  to  maintain  this  ac- 
tion ;  the  right  if  it  exists  is  in  the  corporation  and  the 
plaintiffs  have  shown  no  demand  upon  the  cori>oration 
or  refusal  upon  the  part  of  the  corporation  to  act :  Law 
V.  Puller,  217  Pa.  439 ;  Pellio  v.  Bulls  Head  Coal  Co., 
231  Pa.  157;  Wolf  v.  Penna.  R.  R.  Company,  195  Pa.  91. 

John  W.  Reed,  with  him  R.  L,  Ralston,  for  appellee. — 
When  the  capital  stock  of  a  corporation  is  increased  by 
the  issue  of  new  shares,  each  holder  of  the  original  stock 
has  the  right  to  offer  to  subscribe  for  and  demand  tvom 
the  corporation  such  a  proportion  of  the  new  stock  as  the 
number  of  shares  already  owned  by  him  bears  to  the 
whole  number  of  shares  before  the  increase :  Strickler  v. 
McElroy,  45  Pa,  Superior  Ct,  165;  Morris  v.  Stevens, 


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GLENN  V.  KITTANNING  BRWG.  CO.  et  al.,  Appel.  513 
1918.]  Arguments — Opinion  of  the  Court 

178  Pa.  563;  Electric  Co.  of  America  v.  Edison  Electric 
Illuminating  Co.,  200  Pa.  516. 

A  dissenting  stockholder  may  cause  to  be  set  aside  a 
sale  of  unissued  stock  to  other  stockholders  at  a  grossly 
inadequate  price  to  enable  them  to  obtain  control :  Essex 
r.  Essex,  141  Mich.  200;  Trask  v.  Chase,  107  Me.  137; 
Luther  v.  Luther  Co.,  118  Wis.  112;  Arkansas  Society 
V.  Eichholtz,  45  Kan.  164;  Hilles  v.  Parrish,  14  N.  J. 
Eq.  380;  Way  v.  American  Grease  Co.,  60  N.  J.  Eq.  263; 
Humboldt  Driving  Park  Assn.  v.  Stevens,  34  Neb,  528 ; 
Whitaker  v.  Kilby,  55  N.  Y.  Misc.  Rep.  337;  Schmidt  v. 
Pritchard,  135  Iowa  240. 

A  court  of  equity  has  jurisdiction  to  control  the  issue 
of  any  stock  in  violation  of  the  pro  rata  rule :  Snelling 
V.  Richard,  166  Fed.  Repr.  635. 

It  was  not  necessary  that  a  demand  for  redress  should 
first  have  been  made  upon  the  defendant:  Common- 
wealth Title  Ins.  &  Trust  Co.  v.  Seltzer,  227  Pa.  410; 
Treat  v.  Penna.  Mutual  Life  Insurance  Co.,  203  Pa.  21. 

Opinion  by  Mb.  Justice  Frazbe,  January  7, 1918 : 
Defendants  have  appealed  from  a  decree  entered  con- 
formably to  a  bill  in  equity  brought  by  Joseph  W.  Glenn 
as  a  stockholder  of  the  Eittanning  Brewing  Company  on 
behalf  of  himself  and  other  stockholders  joining  th^ein 
asking  the  court  to  declare  illegal  and  invalid  a  certifi- 
cate for  fifty  shares  of  the  capital  stock  of  the  corpora- 
tion issued  to  F.  B.  Stage,  one  of  the  defendants,  and  a 
member  of  the  company's  board  of  directors,  and  for  an 
order  that  such  certificate  be  surrendered  to  the  com- 
pany for  cancellation  and  Stage  enjoined  from  voting 
the  stock  or  making  transfer  thereof.  A  preliminary  in- 
junction was  subsequently  made  perpetual  and  a  decree 
entered  in  accordance  with  the  prayers  of  the  bill. 

The  main  facts  upon  which  the  disposition  of  the  cAse 
depends  are  not  in  dispute.    The  board  of  directors  of 
the  brewing  company  was  composed  of  five  members  con- 
sisting of  the  original  plaintiff  Glenn,  Harry  G,  Luker, 
Vol.  cclix— 33 


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514  GLENN  v.  KITTANNING  BRWG.  CO.  et  al,  Appcl. 

Opinion  of  the  Court  [259  Pa. 

who  intervened  with  others  as  plaintiffs,  and  the  three 
defendants.  The  capital  stock  of  the  company  consisted 
of  one  thousand  shares  of  the  par  value  of  f  100  each,  of 
which  seven  hundred  and  fifty  had  been  issued.  The 
company  carried  on  its  biisiness  successfully  for  approxi- 
mately ten  years,  gradually  increasing  its  plant  and 
equipment  and  accumulating  a  surplus  until  July,  1916, 
when  the  book  value  of  its  outstanding  stock  was  ^22.79 
per  share.  In  the  meantime,  by  reason  of  differences 
among  the  stockholders,  two  factions  had  arisen.  Plain- 
tiff Glenn  and  Luker,  two  of  the  board  of  directors,  rep- 
resented one  faction  and  the  defendants  Reese,  Stage  and 
Jessop,  the  remaining  members  and  the  majority  of  the 
board,  the  other.  Plaintiffs  faction  though  a  minority 
of  the  board,  owned  or  controlled  a  majority  of  the  stock, 
consisting  of  381  of  the  750  shares  outstanding;  359 
shares  were  controlled  by  defendant  faction  and  the  re- 
maining ten  shares  were  in  the  hands  of  neutral  parties. 
On  July  7^  1916,  at  a  regular  meeting  of  the  board  of 
directors,  attended  by  the  three  defendants  only,  a  reso- 
lution was  ad(^ted  authorizing  the  manager.  Stage,  ^^to 
sell  any  portion  of  the  250  shares  of  the  treasury  stock 
at  a  price  not  less  than  par,  one  hundred  dollars  per 
share,  for  the  purpose  of  paying  off  the  indebtedness  of 
the  company."  Notice  of  this  meeting  was  not  required 
to  be  given  the  directors,  the  court  however  found  the 
secretary  made  an  honest  effort  to  notify  the  absent  mem- 
bers by  telephone,  and  that  such  notice  was  actually  re- 
ceived by  Glenn. 

Agreeably  to  the  resolution,  and  within  a  week  after 
the  meeting,  fifty  shares  of  the  company's  stock  were  is- 
sued to  Stage  at  par.  These  shares  gave  defendants  the 
control  of  the  company.  Defendants  give  as  reason  for 
the  issuing  of  the  additional  stock,  a  demand  by  the  Safe 
Itej^osit  &  Title  Guaranty  Company  for  payment  of  a 
demand  note  of  the  brewing  company  for  six  thousand 
dollars  held  by  the  guaranty  cmnpany. 

The  findings  of  the  court  below,  and  the  testimony  In 


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GLENN  v.  KITTANNING  BRWG.  CO.  et  al.,  Appel.  515 
1918.]  Opinion  of  the  Court. 
the  case,  show  the  brewing  company  intended  to  become 
endorser  on  the  note  of  one  McGregor  for  six  thousand 
dollars  to  enable  the  latter  to  purchase  a  hotel  property. 
The  McGregor  note  was  to  be  discounted  by  the  guaranty 
company  and  its  president  had  informed  the  brewing 
company  that  before  such  endorsement  would  be  ac- 
cepted the  six  thousand  dollar  demand  note  must  be  paid. 
Na  other  demand  was  made  for  payment  of  the  note. 
As  a  matter  of  fact,  the  trust  company  held,  as  collateral, 
bonds  of  the  brewing  company  to  the  extent  of  eight 
thousand  dollars  and  the  brewing  company  also  held  in 
its  treasury  an  additional  number  of  its  corporate  bonds 
acceptable  as  collateral,  and  available  for  the  purpose  of 
raising  funds  for  any  legitimate  purpose  required  by  the 
company.  The  brewing  company  was  under  no  obliga- 
tion to  become  surety  on  the  proposed  loan,  and  did  so 
merely  as  a  matter  of  business  policy,  with  a  view  to  pro- 
cure a  new  customer  for  itff  products.  No  opportu- 
nity was  given  other  stockholders  to  subscribe  propor- 
tionately for  the  purchase  of  the  fifty  shares  of  the  stock 
issued,  and  they  were  without  knowledge  of  the  transac- 
tion until  more  than  a  month  after  the  issue  had  been 
made.  No  reason  on  account  of  financial  conditions  of 
the  company  was  apparent  for  issuing  the  additional 
stock  and  the  court  found  the  real  purpose  of  the  trans- 
action was  to  place  the  control  of  the  company  in  the 
hands  of  the  faction  represented  by  the  defendants,  and 
in  its  opinion  stated  as  follows :  "While  ostensibly,  the 
purpose  in  selling  the  said  fifty  shares  of  the  unissued 
capital  as  aforesaid  to  Stage,  was,  as  defendants  con- 
tend, to  pay  the  {6,000  note  of  the  company,  then  owing 
to  the  Safe  Deposit  &  Title  Guaranty  Company,  was  that 
in  truth  and  in  fact  the  real  purpose?  The  circum- 
stances, the  surroundings,  the  existing  conditions,  the 
factional  troubles,  the  singleness  of  purpose  pursued,  as 
shown  and  fairly  deducible  from  the  evidence,  clearly 
point  to  the  conclusion  that  the  real,  underlying  pur- 
pose was  to  obtain  control  of  the  corporation We 


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516  GLENN  v.  KITTANNING  BRW6.  CO.  et  al.,  4^pp^. 

Opinion  of  the  Oourt.  £259  Pa. 

are  confirmed  in  this  view,  when  we  see  that  no  obliga- 
tion rested  upon  the  corporation  to  assist  McGr^or  bj 
loaning  its  endorsement  to  him,  and  that  under  all  the 
facts  in  the  case  the  loan  could  not  be  regarded  as  a  de- 
sirable one  from  the  standpoint  of  the  security.  Aside 
from  said  loan,  there  would  have  been  no  call  from  the 
bank — at  least  that  is  a  fair  inference  from  the  evidence, 
for  payment  of  the  |6,000  note.  However,  if  there  had 
been  necessity  to  pay  off  said  loan,  why  should  a  sale  of 
the  unissued  stock  be  resorted  to  when  21,000  dollars' 
worth  of  the  first  mortgage  bonds  lay  in  the  treasury  of 
the  company,  available  for  sale  or  for  collateral  to  obtain 
loans,  and  another  f8,000  worth  then  up  as  collateral 
to  secure  said  f  6,000  note,  which  at  once  would  be  avail- 
able upon  payment  of  the  note?  It  is  not  at  all  appar- 
ent that  the  financial  condition  of  the  company,  at  the 
time,  demanded  the  sale  of  the  said  stock." 

The  findings  of  fact  by  the  court  below  are  amply  sup. 
ported  by  the  testimony  in  the  case  and  will  therefore 
not  be  disturbed :  Myers  v.  Consumers'  Coal  Co.,  228  Pa. 
444;  Hull  v.  Delaware  &  Hudson  Co.,  255  Pa.  233.  Nor 
does  error  appear  in  the  legal  conclusions  on  the  facts 
found.  No  rule  is  better  established  than  that  the  di- 
rectors of  a  corporation  stand  in  the  position  of  trustees 
for  the  entire  body  of  stockholders,  and  while  stock 
owned  by  the  director  is  his  individual  property  to  be 
dealt  with  as  he  sees  fit  in  the  same  manner  and  to  the 
same  extent  as  other  stockholders,  yet,  when  he  acts  in 
his  official  position,  he  is  acting  not  merely  as  an  indi- 
vidual but  as  representative  of  others  and  is  prohibited 
from  taking  advantage  of  his  position  for  his  personal 
profit  or  to  reap  personal  benefit  to  the  detriment  of 
the  stockholders  whom  he  represents.  Whenever  there 
is  an  intimation  that  a  director  has  violated  the  duty 
thus  imposed  upon  him  by  virtue  of  his  office,  or  has 
failed  to  act  fairly  and  honestly  toward  those  whom  he 
represents,  the  lai^  ceases  to  look  at  the  mere  form 
of  the  device  or  means  employed  and  **pierces  through 


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GLENN  i;.  KITTANNING  BRWG.  CO.  et  al,  Appel.  517 
19X8.]  Opiniou  of  tho  Court. 

the  surface  and  seizes  upon  the  evils  which  lie  within" : 
Tenth  National  Bank  of  Philadelphia  v.  Smith  Construc- 
tion Co.,  242  Pa,  269;  Hechelman  v.  Geyer,  248  Pa.  430. 

The  circumstances  under  which  the  stock  in  contro- 
versy was  issued  and  purchased  by  one  of  the  directors 
who  voted  for  the  resolution,  were  adequate  to  raise  a 
doubt  of  the  good  faith  of  the  directors.  Assuming  the 
resolution  was  proper  and  there  was  sufficient  reason  for 
issuing  the  stock,  the  directors  who  were  present  at  the 
meeting  had  no  right  to  subscribe  for  the  new  issue  with- 
out first  notifying  all  stockholders  and  affording  them  an 
opportunity  to  take  up  the  stock  in  proportion  to  the 
amount  of  the  shares  already  held  by  them.  This  is 
especially  true,  in  view  of  the  long  standing  dispute  be- 
tween the  two  factions  and  the  attempt  by  both  to  obtain 
a  controlling  interest.  The  directors,  as  a  board,  had 
knowledge  of  this  fact,  and  there  were  consequently  par- 
ticular  reasons  requiring  them  to  act  impartially  and  in 
the  interest  of  the  stockholders  as  a  whole.  The  former 
were  bound  to  give  notice  and  afford  the  latter  an  oppor- 
tunity to  subscribe  for  the  stock  on  equal  terms  and  it  is 
immaterial  that  such  additional  issue  was  made  long 
after  the  business  of  the  company  was  begun :  Morris  et  al. 
V.  Stevens  et  al.,  178  Pa.  563 ;  Electric  Co.  v.  Electric  Co., 
200  Pa.  516;  Cook  on  Corporations,  Section  286. 

We  cannot  agree  with  the  contention  that  a  court  of 
equity  is  without  jurisdiction  to  set  aside  the  transaction 
complained  of  and  that  plaintiffs'  remedy,  if  any,  is  by 
action  at  law  for  damages.  Where  the  question  of  con- 
trol of.  the  corporation  is  involved,  the  remedy  at  law  for 
damages  for  an  improper  sale  of  stock  may  be  entirely 
inadequate,  and  where  an  averment  of  fraud  on  the  part 
of  those  having  management  of  the  company  appears,  as 
against  the  rights  and  interest  of  the  stockholders,  a 
court  of  equity  has  jurisdiction  to  inquire  into  the  trans- 
action and  make  such  decree  as  the  circumstances  may 
warrant :  Electric  Co.  v.  Electric  Co.,  supra. 

The  fact  that  no  previous  demand  was  made  by  plain- 


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518  GLENN  r.  KITTANNING  BRWG.  CO.  ct  al.^  Appel. 

Opinion  of  the  Court  [2&9  Pa. 

tiffs  on  the  corporation  to  take  action  in  the  matter  is  of 
no  importance  under  the  facts  in  this  case.  Although 
the  general  rule  is  that  a  stockholder  is  not  warranted  in 
proceeding  as  an  individual  without  a  formal  demand 
and  refusal  of  the  corporation  to  bring  proper  action: 
Commonwealth  Title  Insurance  &  Trust  Co.  v.  Selteer, 
227  Pa.  410;  yet  plaintiffs  are  not  required,  either  in 
law  or  equity,  to  do  a  vain  or  useless  thing.  The  wrcmg- 
doers  in  this  case  were  the  majority  of  the  board  of  di- 
rectors and  as  they  committed  the  wrong  complained  of, 
it  is  scarcely  reasonable  to  suppose  a  demand  upcm  them 
to  bring  corporate  action  would  have  produced  results. 
Plaintiffs  were  therefore  justified  in  instituting  proceed- 
ings in  their  own  name  without  first  demanding  action 
on  the  part  of  the  corporate  officers :  Treat  v.  Pennsyl- 
vania Mutual  Life  Insurance  Co.,  203  Pa.  21. 
The  decree  of  the  court  below  is  affirmed. 


Murray,  Appellant,  v.  Smith  et  al. 

Practice,  Supreme  Court — Appeals — Errors  due  to  conduct  of  ap^ 
pellant's  counsel — Assignments  of  error — Defective  assignments. 

In  an  action  of  assumpsit  brought  by  a  physician  to  recover 
compensation  for  professional  services,  where  the  controlling  ques- 
tions of  fact  and  law  were  not  numerous,  intricate  or  confusing, 
but  were  made  so  by  the  conduct  of  counsel  during  the  trial,  and 
upon  a  review  of  the  whole  record,  it  appeared  that,  under  the 
competent  evidence  submitted  to  the  juiy,  there  was  no  merit  in 
the  plaintiff's  claim,  a  verdict  for  the  defendant  will  be  sustained 
although  there  might  have  been  technical  errors,  resulting  from 
the  conduct  of  counsel  at  the  trial,  especially  where  the  rules  re- 
lating to  assignments  of  error  were  violated. 

Argued  Sept.  26, 1917.  Appeal,  No.  34,  Oct.  T.,  1917, 
by  plaintiff,  from  judgment  of  C.  P.  Jefferson  Co.,  Nov. 
T.,  1914,  No.  103,  on  verdict  for  defendants,  in  case  of 
John  H.  Murray  v.  W.  O.  Smith,  E.  C.  McKibben,  E.  W. 
Robinson,  J.  P.  Wilson,  S.  A.  Rinn,  F.  C.  Lang,  W.  A. 


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MURRAY,  AppeUant,  v.  SMITH  et  al.  519 

1918.]  Statement  of  Facts — Opinion  of  the  Court 

Sutter,  H.  G.  Bowers,  Dr.  8.  J.  Hughes,  G.  C.  Brown,  A. 
B.  White  and  Jacob  L.  Fisher,  Executors  of  the  Last 
Will  and  Testament  of  Emma  M.  Weber,  deceased.  Be- 
fore Mbstrbzat,  Potter,  Stbwart,  Mosghziskbb  and 
Frazbr,  JJ.    Affirmed. 

Assumpsit  for  medical  services  rendered  defendants' 
decedent.     Before  Sloan,  P.  J.,  specially  presiding. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

Verdict  for  defendant  and  judgment  thereon.  Plain- 
tiff appealed. 

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

Raymmid  E.  Brawn,  H.  C.  Camphell,  CHllespie  and 
Oitlespie  and  W.  B.  Adams,  for  appellant. 

John  W.  Reed,  with  him  Clark  d  Stewart  and  Jacob 
L.  Fisher,  for  appellee. 

PEtt  Curiam,  January  7, 1918 : 

It  may  well  be  admitted,  as  suggested  in  the  brief  of 
appellant's  counsel,  that  the  trial  of  this  case  was  long, 
involved  many  intricate,  controverted  and  confusing 
questions  of  law  and  fact,  and  was  warmly,  even  bitterly 
contested  by  opposing  counsel,  but  this  admissi<Hi  must 
be  accompanied  by  the  suggestion  that  it  was  entirely 
o\i^ng  to  the  manner  in  which  the  trial  was  conducted 
by  counsel  of  both  parties.  The  case  was  very  simple, 
an  action  of  assumpsit  by  a  physician  to  recover  com- 
pensation for  professional  services,  and  the  controlling 
questions  of  fact  and  law  were  neither  numerous,  intri- 
cate, nor  confusing,  but  were  made  so  solejy  by  the  inex- 
cusable conduct  of  the  leading  counsel  during  the  trial 
of  the  case  which  manifestly  tended  to  mislead  rather 
than  aid  in  the  solution  of  the  questions  involved  in  the 
case.    Of  course,  the  court  should  not  have  i>ermitted 


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520  MURRAY,  Appellant,  v.  SMITH  et  al. 

Opinion  of  the  Court.  [259  Pa. 

sueli  conduct;  but,  if  it  I'csulted  injuriously  to  the  client 
of  either  party,  be  is  not  in  a  position  to  complain. 

We  have  reviewed  this  record  with  care,  and  are  sat- 
isfied that  under  the  competent  evidence  submitted  to 
the  jury  there  is  no  merit  in  the  plaintiff's  claim,  and  the 
jury  and  court  reached  the  correct  conclusion.  We, 
therefore,  should  and  will  not  be  astute  in  searching  for 
technical  errors,  made  possible  by  the  irregular  and  un- 
usual manner  pursued  by  counsel  in  the  conduct  of  the 
trial  resulting  in  substantial  justice  between  the  parties. 
The  greater. number  and  possibly  all  of  the  assignments 
of  error  are  in  violation  of  the  rules  of  this  court,  and, 
for  the  reasons  stated,  we  are  not  inclined  to  overlook 
such  dereliction  and  aid  the  defeated  party  in  continuing 
the  litigation  by  reversing  a  judgment  amply  warranted 
by  the  evidence.  We  find  no  reversible  error  in  the  as- 
signments considered,  and,  therefore,  the  judgment  is  af- 
firmed. 


Cossette,  Appellant,  v.  Paulton  Coal  Mining 
Company. 

Negligence — Master  and  servant  —  Mines  and  mining — Bituml' 
nous  Coal  Mine  Act  of  June  9,  1911,  P,  L.  756— Construction  of 
passageway — Mine  foreman — Negligence  of  mine  foreman — Conr 
structive  notice  of  defect — Contributory  negligence — Nonsuit. 

1.  The  rule  that  under  the  general  provision  of  the  "lining  acts 
placing  the  workings  under  the  mine  foreman's  charge  and  super- 
vision,  and  under  certain  special  provisions  thereof,  the  foreman 
is  responsible  for  all  work  in  the  course  of  the  construction  of  pas- 
sageways, expressed  with  reference  to  prior  statutes,  is  applicable 
to  the  Act  of  June  11, 1911,  P.  L.  766. 

2.  In  an  action  against  a  mining  company  to  recover  for  injuries 
sustained  by  an  employee  in  consequence  of  the  fall  upon  him  of 
slate  from  the  roof  of  a  newly  constructed  passageway,  a  compul- 
sory nonsuit  was  properly  entered  where  it  appeared  that  the 
passageway  was  being  constructed  under  the  supervision  of  the 
mine  foremen ;  that  his  attention  was  called  to  the  dangerous  con- 
dition of  the  roof,  but  that  it  was  not  remedied;  that  no  signal 
was  placed  to  warn  employees  of  the  danger;   that  the  foreman 


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COSSETTE,  Appel,  v.  PAULTON  COAL  MINING  CO.  521 
1018.]  Syllabus — Arguineiitij. 

told  plaintiff  and  other  workmen  that  they  could  use  the  passage- 
way, and  that  the  next  day,  while  plaintiff  was  using  it,  a  portion 
of  the  roof  fell,  causing  the  injuries  complained  of. 

8.  In  such  case  had  the  new  entry  been  completed  let  sufficient 
period  of  time  before  the  accident  to  fix  the  defendant  with  con- 
structive notice  of  the  defect  therein,  or  had  the  latter  received 
express  notice  of  its  faulty  condition,  or  had  the  way  existed  for 
such  a  length  of  time  as  to  become  part  of  the  established  plant, 
or  had  it  been  in  use  as  a  regular,  completed  passage,  the  defend- 
ant might  have  been  held  liable. 

4.  It  seems  plaintiff  was  not  guilty  of  contributory  negligence 
under  the  facts  of  this  case. 

Argued  Sept.  27, 1917.  Appeal,  No.  153,  Oct.  T.,  1917, 
by  plaintiff,  from  final  order  of  C.  P.  Armstrong  Co., 
Sept.  T.,  1915,  No.  99,  refusing  to  take  off  nonsuit,  in 
case  of  Joe  Cossette  v.  Paulton  Coal  Mining  Company. 
Before  Mbstbbzat,  Pottbb,  Stbwaet,  Mosghziskbr  and 
Fbazbr,  JJ.    Affirmed. 

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

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  entered  a  compulsory  nonsuit,  which  it  sub- 
sequently refused  to  takp  off. 

Error  assigned  was  in  refusing  to  take  off  the  nonsuit. 

H.  Fred  Mercer,  with  him  C.  E.  Harrington  wid  Wal- 
ter L.  Dipple,  for  appellant. — The  mine  superintendent 
was  derelict  in  the  performance  of  the  duties  imposed 
upon  him  in  consequence  of  which  the  plaintiff  was  in- 
jured, and  the  defendant  was,  therefore,  liable:  McCol- 
lom  V.  Penna.  Coal  Co.,  250  Pa.  27 ;  Watson  v.  Monon- 
gahela  R.  C.  C.  &  C.  Co.,  247  Pa.  469;  Wolcutt  v.  Erie 
Coal  &  Coke  Co.,  226  Pa.  204;  Cohn  v.  May,  210  Pa.  615. 

To  provide  a  proper  passageway  in  a  bituminous  coal 
mine  for  the  use  of  employees  in  going  to  and  from  work 
is  a  nondelegable  duty  imposed  upon  the  mine  owner: 
Simmons  v.  Lehigh  Valley  Coal  Co.,  240  Pa.  354. 


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522  COSSETTE/Appcl.,  v.  PAULTON  COAL  MINING  CO. 

Arguments — Opinion  of  the  Court.  [259  Pa. 

The  mine  owner  failed  to  warn  the  employee  of  the 

danger  of  the  new  travelingway :  Mish  v.  Lehigh  Valley 

Coal  Co.,  67  Pa.  Superior  Ct.  27. 

H.  A.  Heilman,  with  him  F.  C.  Janes,  for  appellee. — 
The  injuries  sustained  by  plaintiff  resulted  from  the 
negligence  of  the  mine  foreman,  for  which  the  defendant 
is  not  liable :  Durkin  v.  Kingston  Coal  Co.,  171  Pa.  193 ; 
Hall  V.  Simpson,  203  Pa.  146;  Golden  v.  Mt.  Jessup  Coal 
Co.,  225  Pa.  164;  Dempsey  v.  Buck  Run  Coal  Co,,  227 
Pa.  571. 

Opinion  by  Mb.  Justigb  Mosghziskbr,  January  7, 
1918: 

On  December  7,  1914,  the  plaintiff,  Joe  Cossette,  an 
employee  of  defendant  company,  was  severely  injured  in 
the  latter's  coal  mine ;  he  sued  in  trespass,  alleging  n^- 
ligence;  the  court  below  entered  a  nonsuit,  which  it  sub- 
sequently refused  to  remove;  hence  this  appeal. 

The  case  is  so  well  disposed  of  in  the  following  excerpts 
from  the  opinion  of  the  learned  court  below  that  we  need 
add  but  little  thereto:   "A  cross  entry  to  connect  the 

main  haulage  way  with  a  face  entry was  in  process 

of  completion  at  about  this  time  [the  date  of  the  acci- 
dent] • . . ;  from  both  ends  it  had  been  driven  and  con- 
structed by  miners,  who  as  they  advanced  approached 
each  other;  and  so  the  work  continued  until  in  the 
afternoon  of  December  6,  1914,  when  they  met  and 

knocked  or  cut  through  a  small  hole from  two  feet 

to  three  feet  in  size The  plaintiff  had  not  been  en- 
gaged in  working  in  the  new  entry,  but  was  mining  coal 
in  another  part  of  the  mine.  On  the  morning  of  the  day 
of  the  injury  he  went  to  his  work  at  6 :  30  o'clock,  and 
completed  his  day's  work  about  11  o'clock  a.  m.,  when, 
in  company  with  his  fellow  employee,  Ameliori  Buffa,  he 
started  to  go  out  of  the  mine.  In  going  out  they  pro- 
ceeded by  way  of  this  new  entry,  Buffa  being  in  the  lead, 
and  having  passed  through  the  aforesaid  opening  or  hole, 


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COSSETTE,  Appel.,  r.  PAULTON  COAL  MINING  CO.  523 
1918.]  Opinion  of  the  Court. 

cut  through  the  preceding  day,  the  plaintiff^  when  about 
eight  or  ten  feet  beyond  it,  was  caught  by  a  fall  of  slate 
and  rock  from  the  roof  and  severely  injured.  The  evi- 
dence on  the  part  of  plaintiff  showed  that  the  defendant 
company,  at  the  time  of  the  accident  and  prior  thereto, 
had  in  its  employ  a  certified  mine  foreman  (Curt  Snare), 
a  superintendent  (a  Mr.  Lace), and  about  75  to  80  miners 
or  employees.  It  further  appears  that  the  mine  foreman, 
under  whose  supervision  this  new  connecting  entry  was 
being  constructed  and  driven,  was  at  the  point  where  the 
aforesaid  hole  was  cut  through,  just  immediately  or  soon 

thereafter,  and  that  his  attention  was  called,  by one 

of  the  miners  engaged  in  driving  said  entry,  to  the  bad 
condition  of  the  roof  at  or  near  said  hole. ...  .He  said: 
^All  right,  I  will  fix  it  up  later.'  In  this  condition  it  re- 
mained that  day  and  the  next  morning.  When  plaintiff 
and  other  employees  came  to  go  to  work,  they  were  told, 
by  the  foreman,  of  the  cut-through,  and  that  *they  could 
use  that  way  in  going  in  and  out  or  back  and  forward, 
if  they  wished,'  instead  of  the  old  way,  as  it  would  be 
nearer.  The  plaintiff,  however,  in  going  into  the  mine 
that  morning,  used  the  old  way,  and  [later  in  the  day] 
for  the  first  time  attempted  to  go  out  by  using  the  new 
entry  [when  he  was  hurt] Does  the  plaintiff's  evi- 
dence show  negligence  of  the  defendant  company  causing 
the  injury  complained  of?  If  so,  we  were  in  error  in 
directing  a  nonsuit.  The  evidence  shows  that  the  com- 
pany employed  both  a  superintendent  and  a  certified 
mine  foreman;  that  the  entry  wherein  the  injury  oc- 
curred was  in  process  of  construction,  but  as  yet  not 
completed;  that  a  hole  had  been  cut  through,  through 
which  men  could  crawl,  on  the  afternoon  of  December 
6th  [at  about  3  o'clock],  and  that  the  accident  occurred 
about  half  past  11  o'clock  a.  m.  the  next  day.  The  mine 
foreman,  who  under  the  Act  of  1911,  P.  L.  756,  762,  is 
given  full  charge  of  the  inside  workings  and  of  the  men 
working  therein,  knew  of  this  cut  through  and  the  defect- 
ive condition  of  the  roof  thereat;  yet,  notwithstanding, 


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524  COSSETTE,  Appel.,  v,  PAULTON  COAL  MINING  CO. 
Opinion  of  the  Court.  [259  Pa. 
he  posted  no  danger  signals  and  did  noUiing  to  guard  and 
protect  employees  against  or  from  the  danger  existing 
there,  but  permitted  the  employees— even  suggested  to 
plaintiff  and  others — ^that  they  might  pass  through  by 
that  way.  There  is  an  entire  absence  of  evidence  that 
the  superintendent  or  owner  of  the  mine  had  any  knowl- 
edge or  notice  of  the  cut-through  in  the  said  entry  or  of 
the  defective  condition  of  the  roof  near  thereto,  or  of  the 
failure  of  the  mine  foreman  to  safeguard  it;  as  this  con- 
dition had  only  existed  for  about  20  hours,  and  a  night 
having  intervened  before  the  accident  happened,  we  can- 
ned hold  that  constructive  notice  was  brought  home  to 
the  company,  and  the  evidence  would  not  warrant  such 
a  finding  by  a  jury.  Neither  in  our  opinion  was  there 
sufficient  evidence  to  submit  to  the  jury  to  warrant  a 
finding  that  the  mine  foreman  was  acting  in  a  dual  ca- 
pacity. There  is  no  evidence  whatsoever  that  the  defend- 
ant company  had  any  knowledge  of  his  [alleged]  inef- 
ficiency or  neglect  of  duties,  nor  is  there  any  evidence  to 
indicate  that  he  did  not  have  full  and  complete,  exclu- 
sive control,  charge  and  supervision  of  the  underground 
or  inside  workings  of  the  mine  and  the  men  or  em- 
ployees therein  working The  accident  was  due  solely 

to  the  negligence  of  the  mine  foreman,  and  for  his  negli- 
gence, under  the  circumstances,  the  defendant  company 

was  not  answerable The  motion  to  take  off  the  c<Hn- 

pulsory  nonsuit  is  refused." 

We  have  read  all  the  printed  testimony,  and  find  the 
foregoing  summary  substantially  correct.  The  state- 
ment of  claim  alleges  that  defendant  "delegated  the  im- 
mediate supervision  of  said  mine  to  a  superintendent" ; 
but,  as  already  indicated,  plaintiff  contended  at  trial 
that  this  official  was  frequently  absent  and,  as  a  matter 
of  fact,  the  mine  foreman  really  acted  in  the  dual  capacity 
of  foreman  and  superintendent.  We  agree  with  the  court 
below,  however,  that  the  evidence  relied  upon  to  sustain 
this  contention  is  entirely  too  vague,  indefinite  and  in- 
conclusive to  justify  a  jury  in  so  finding. 


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C08SETTE,  Appel,  i;..PAULTON  COAL  MINING  CO.  525 
1918.}  Opinion  of  the  Court. 

One  other  point  calls  for  attention :  The  "old  way," 
which,  up  to  the  time  of  the  accident,  was  regularly  used 
by  plaintiff  and  other  employees  of  defendant's  mine,  had 
been  flooded  by  water  for  a  year  or  more ;  but,  while  this 
state  of  affairs  might  have  put  the  mine  employees  to  a 
considerable  inconvenience,  it  did  not  render  the  way  im- 
passable or  imminently  dangerous.  Plaintiff  contends 
that  "defendant  was  bound  to  take  notice  of  the  danger- 
ous condition  of  its  mine,  and  to  know  that  its  mine  fore- 
man was  violating  the  statute,  and  had  not  provided  its 
employees  with  a  reasonably  safe  traveling  way  to  and 
from  work" ;  but  to  this  it  may  well  be  answered  that 
defendant  was  constructing  the  new  passageway  when 
the  accident  happened.  In  other  words,  defendant  was 
then  apparently  engaged  in  an  effort  to  relieve  the  con- 
dition in  question ;  which,  considering  the  fact  that  the 
old  passage  was  not  in  any  sense  imminently  dangerous, 
did  not  require  the  company  to  close  down  its  mine 
pending  the  completion  of  the  new  way.  Under  such  con- 
ditions, it  would  not  be  contributory  negligence  for 
plaintiff  to  use  the  new,  instead  of  the  old  way  (Reeder 
V.  Lehigh  Valley  Coal  Co.,  231  Pa.  563,  571-2) ;  but  the 
nonsuit  at  bar  was  not  entered  on  the  ground  of  con- 
tributory negligence.  The  trial  judge  declined  to  submit 
the  case  to  the  jury  because  he  believed  there  was  a  lack 
of  negligence  on  the  part  of  defendant  company,  since, 
under  the  evidence,  the  negligence,  if  any,  was  clearly 
and  solely  that  of  the  mine  foreman,  for  which,  under 
the  law  as  it  stood  at  the  time  of  plaintiff's  injury,  his 
employer  was  not  liable. 

Of  course,  had  the  new  entry  been  fully  completed 
a  sufficient  period  of  time  before  the  accident  to 
fix  the  defendant  with  constructive  notice  of  the 
defect  therein,  or  had  defendant  received  express 
notice  of  its  faulty  condition,  or,  again,  had  the  way  ex- 
isted for  such  a  length  of  time  as  to  become  part  of  the 
established  plant,  or,  further,  had  it  been  in  use  as  a 
regular,  completed  passage,  then  a  different  ease  would 


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526  COSSETTE,  Appel.,  v.  PAULTON  COAL  MINING  CO. 
Opinion  of  the  Court.  [369  Pa. 

be  presented;  and  defendant  might  be  held  liable;  but  all 
the  evidence  shows  the  place  where  plaintiff  met  with 
his  injury  was  an  entry  still  in  course  of  construction, 
and,  as  recently  ruled  by  this  court,  in  Wats<m  v.  Mo- 
nongahela  River  Coal  &  Coke  Co.,  247  Pa.  469,  474, 
^'Under  the  general  provision  placing  the  workings  under 
the  mine  foreman's  charge  and  supervision,  and  under 
certain  special  provisions  to  be  found  in  the  [Mining] 
Acts,  he  [the  foreman]  is  responsible  for  all  work  in 
course  of  the  construction  of  passageways."  This  was 
said  with  reference  to  prior  statutes,  but  it  is  applicable 
with  like  force  to  the  Act  of  June  9, 1911,  P.  L.  756. 

Here,  as  properly  ruled  by  the  learned  court  below, 
the  negligence,  if  any,  was  purely  that  of  the  mine  fore- 
man, for  which  the  defendant  is  not  liable  (Durkin  v. 
Kingston  Coal  Co.,  171  Pa.  193,  203;  Hall  v.  Simpson, 
203  Pa.  146,  148;  Golden  v.  Mt.  Jessup  Coal  Co.,  225 
Pa.  164, 166-7;  Dempsey  v.  Buck  Run  Coal  Co.,  227  Pa. 
571,  578,  579 ;  Reeder  v.  Lehigh  Valley  Co.,  supra,  pp. 
575-6;  D'Jorko  v.  Berwind-White  Co.,  231  Pa.  164, 169- 
70).  The  situation  of  this  injured  appellant  commands 
our  sympathy,  but  the  law  must  be  administered  as  es- 
tablished; and,  thereunder,  we  cannot  hold  the  action 
complained  of  to  be  error. 

The  judgment  is  affirmed. 


McWilliams'  Estate. 


WHU — Validity — Alleged  alteration — Handwriting  experts — Ah' 
sence  of  corroboration — Weight — Petition  for  issue  d,  v,  n. — Be- 
fusal, 

1.  After  direct  evidence  has  been  given  on  the  subject  of  hand- 
writing, the  evidence  of  experts  is  admissible  in  corroboration,  but 
the  evidence  of  experts,  without  the  support  of  other  evidence,  is 
insufficient  to  attack  the  validity  of  a  document 

2.  Where  a  petition  for  an  issue  devisavit  vel  non  alleged  that 
the  last  paragraph  of  the  will  had  been  added  thereto  after  the 
execution  thereof  by  testator  and  without  his  knowledge  or  con- 


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McWILLIAMS'  ESTATE.  527 

1918.]  Syllabus — Opinion  of  Court  below, 

sent,  but  where  the  scrivener  of  the  will  testified  that  he  wrote  the 
entire  will  with  the  exception  of  the  signature  of  the  t^tator  and 
the  witnesses,  in  the  presence  of  the  testator  and  the  subscribing 
witnesses,  and  where  the  only  evidence  in  behalf  of  the  contestants 
was  that  of  handwriting  experts,  who  testified  that  the  paragraph 
in  controversy  was  not  in  their  opinion  written  with  the  same  pen 
and  ink  as  the  other  portions  of  the  will,  the  court  made  no  error 
in  dismissing  the  petition. 

Argued  Sept.  27,  1917.  Appeal,  No.  19,  Oct.  T.,  1917, 
by  Homer  McWilliams,  and  S.  S.  Me  Williams  and  Wil- 
liam Me  Williams,  Jr.,  from  decree  of  O.  C.  Westmore- 
land Co.,  May  T.,  1915,  No.  161,  refusing  an  issue  devisa- 
vit  vel  non,  Estate  of  David  McWilliams,  deceased.  Be- 
fore Mestbbzat,  Pottee,  Stewart,  Mosghziskeb  and 
Frazeb,  J  J.    Affirmed. 

Petition  for  issue  devisavit  vel  non. 

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

David  McWilliams,  late  of  Madison  Borough,  West- 
moreland County,  Pennsylvania,  deceased,  died  testate 
on  the  25th  day  of  January,  1914,  first  having  made  his 
last  will  and  testament  in  writing,  dated  the  24th  day 
of  May,  1912.  This  will,  after  his  death,  was  duly  pro- 
bated and  recorded  on  the  30th  day  of  January,  1914,  in 
Will  Book  18,  page  236.  By  this  will,  the  testator  de- 
vised and  bequeathed  as  follows : 

"1st.  I  will  devise  and  bequeath  that  after  my  death 
all  my  just  debts  and  funeral  expenses  be  first  paid  by 
my  executor  out  of  my  estate. 

"2nd.  I  will  devise  and  bequeath  that  my  executors 
shall  have  a  monument  put  to  my  lot  in  the  cemetery  for 
myself  and  wife  to  cost  not  less  than  |150. 

"3rd.  I  will  that  my  executor  shall  put  flOO.OO  on 
interest,  the  interest  of  which  shall  be  used  for  keeping 
my  lot  in  the  cemetery  in  repair. 

"4th.  I  will  devise  and  bequeath  to  my  beloved  wife 
Barbary  McWilliams  all  the  rest  of  my  estate  both  real 
personal  and  mixed  absolutely  as  her  own. 


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528  MoWILLUMS'  ESTATE. 

Opinion  of  the  Court.  [259  Pa. 

"5.  And  lastly  if  my  wife  Barbary  Mc Williams  should 
die  before  me  then  my  express  will  and  meaning  is  that 
the  whole  of  my  estate  both  real,  personal  and  mixed 
wherever  found  shall  go  to  Ida  M.  Ruff  and  Harry  E. 
Buflf." 

On  the  18th  day  of  January,  1915,  H.  C.  McWilUams, 
S.  S.  Mc  Williams,  William  Mc  Williams  and  F.  G.  Coop- 
er, nephews  of  the  decedent,  appealed  to  the  Orphans' 
Court  of  Westmoreland  County  from  the  decision  of  the 
register  of  wills  admitting  to  probate  this  paper  writii^g 
alleged  to  be  the  last  will  and  testament  of  the  decedent, 
and  from  the  granting  of  letters  testamentary  thereon. 
A  bond  in  the  sum  of  five  hundred  (^00)  dollars,  at  the 
same  time,  was  filed  by  the  appellants,  conditioned  that 
they  pay  all  or  any  costs  which  may  be  occasioned  by 
reason  of  such  appeal  and  which  may  be  decreed  by  the 
Orphans'  Court  to  be  paid.  At  the  time  of  filing  this 
appeal  and  bond,  a  motion  was  filed  to  strike  off  the  ap- 
peal from  the  probate  because  it  did  not  appear,  from 
the  appeal  filed,  the  nature  and  character  of  appellants 
interest  in  the  estate.  We  might  say  in  passing — ^for 
it  is  not  clear  to  us  that  this  motion  Avas  disposed  of — 
that  the  appeal  shows  they  were  nephews  of  the  decedent 
and,  of  course,  would  be  entitled  to  inherit  as  collateral 
heirs,  if  the  decedent  died  intestate,  he  being  without 
issue  and  his  wife  dead. 

On  the  28th  day  of  June,  1915,  a  petition  was  present- 
ed to  this  court  by  the  parties  appealing  from  the  de- 
cision of  the  register  of  walls  admitting  this  writing  to 
probate,  setting  forth  the  facts  they  expected  to  be  able 
to  prove  and  praying  that  a  citation  be  awarded  directed 
to  all  parties  interested,  to  wit :  Ida  M.  Ruff  and  Harry 
E.  Ruff,  the  persons  to  whom,  under  the  alleged  will,  the 
entire  estate  of  the  decedent  goes,  to  show  cause  why  the 
appeal  should  not  be  sustained  and  why  an  issue  should 
not  be  awarded  to  try  the  following  questions : 

"First.  WTiether  or  not  the  fifth  paragraph  of  the  said 
last  will  and  testament  devising  the  whole  of  his  estate, 


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McWILLIAMS'  ESTATE.  529 

1918.]  Opinioa  of  Court  below, 

both  real)  personal  and  mixed,  to  the  said  Ida  M.  Buff 
and  Harry  E.  Buff  was  procured  by  undue  influence 
on  the  part  of  the  said  Ida  M.  Buff  and  Harry  E.  Buff 
and  others. 

^^Second.  Whether  or  not  the  said  fifth  paragraph  of 
the  said  last  will  and  testament  of  the  said  David  Mc- 
WilliamSy  deceased^  is  part  of  the  said  last  will  and  testa- 
ment. 

"Third.  Whether  or  not  the  said  writing,  as  probated, 
is  the  last  will  and  testament  of  the  said  David  Mc Wil- 
liams, deceased.'' 

The  same  day  an  order  was  made  that  a  citation  issue, 
dii*ecting  all  the  parties  named  in  the  petition  to  appear 
and  show  cause  why  the  prayer  of  the  petitioners  should 
not  be  granted.  This  citation  was  made  returnable  to 
Saturday,  the  17th  day  of  July,  1915,  at  9  o'clock  a.  m. 

In  response  to  this  citation,  on  the  14th  day  of 
July,  the  parties  named  therein  appeared,  traversed  all 
the  matters  set  forth  in  the  petition,  denied  all  the  alle- 
gations therein  contained,  and  prayed  that  the  petition 
of  the  appellants  be  dismissed  at  their  costs. 

Afterwards,  to  wit:  on  the  11th  day  of  September, 
1915,  a  petition  was  filed  by  S.  S.  34c Williams,  one  of  the 
administrators  of  the  estate  of  Joseph  Mc Williams,  de- 
ceased, a  brother  of  the  decedent  in  this  case,  to  amend 
the  petition  for  citation  and  issue  so  as  to  make  J.  Collins 
Greer  and  S.  8.  Mc  Williams,  administrators  of  the  estate 
of  Joseph  Mc  Williams,  deceased,  parties  to  this  contest. 
This  amendment  was  allowed  by  the  court. 

With  the  issue  framed  by  the  petition  and  answers, 
the  matter  came  on  to  be  heard,  on  the  28th  day  of 
December,  1915,  when  the  testimony  attached  hereto  was 
taken.  It  is  from  this  testimony  we  are  now  to  deter- 
mine whether  we  shall  award  an  issue  to  try  the  ques- 
tions of  fact  prayed  for  in  the  petition  of  the  contestants. 

While  it  is  allied  in  the  petition  for  an  issue  that 
David  McWilliams  was,  at  the  time  of  the  execution  of 
this  alleged  will,  weak  in  mind,  memory  and  under- 
Vol.,  ccLix— 34 


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530  McWILLIAMS'  ESTATE. 

Opinion  of  Court  below.  [269  Pa. 

standing^  from  sickness^  extreme  age,  bodily  weakness, 
infirmities  and  other  cause^  and  that  the  fifth  paragraph 
of  this  writing  alleged  to  be  his  last  will  was  procured 
and  caused  to  be  written  by  artful  contrivances  and  un- 
due influence,  fraud  and  duress  of  Harry  E.  Ruflf,  Ida  M. 
Ruflf  and  others;  yet  this  testimony  fails  to  show — we 
believe  not  a  single  witness  testified — that  the  decedent 
was  of  weak  mind  and  without  testamentary  capacity,  or 
that  undue  infiuence  was  exercised  over  him  by  the  pro- 
ponents. The  only  question  to  which  it  is  necessary  for 
us  to  direct  our  attention  is,  whether  or  not  the  fifth 
paragraph  in  this  will  was  inserted  by  the  scrivener  after 
the  decedent  signed  it.  The  whole  contest  narrows  itself 
•  down  to  the  determination  of  this  question.  To  this,  and 
this  question  alone,  was  testimony  offered  by  the  contest- 
ants of  the  will.  It  is  now  for  us  to  say,  from  this  testi- 
mony, whether  that  testimony  is  of  sufficient  weight  and 
directness  as  would  justify  us  in  sending  an  issue  to  the 
Common  Pleas  Court  for  trial  by  jury. 

Harry  E.  Ruff,  the  scrivener  of  the  will,  says  that  he 
wrote  the  entire  will,  with  the  exceptions  oif  the  signature 
of  the  testator  and  the  witnesses  to  the  will,  just  as  it 
appears  to-day,  before  David  Mc Williams  or  the  sub- 
scribing witnesses  signed  it;  that  the  fifth  paragraph 
was  in  the  will  before  it  was  executed  by  the  decedent 
and  witnessed  by  the  Rogers  boys ;  that  he  used  a  foun- 
tain pen  in  writing  it ;  that  it  was  written  with  one  kind 
of  ink;  and  that  the  testator  and  the  subscribing  wit- 
nesses used  the  same  pen  and  the  same  ink  in  executing 
and  witnessing  it.  This  testimony  of  Mr.  Ruff  was  elicit- 
ed by  the  appellants  as  if  under  cross-examination.  One 
of  the  subscribing  witnesses,  on  cross-examination,  said 
that  this  paper  was  signed  and  executed  by  David  Mc- 
Williams  and  witnessed  by  himself  and  brother  with  the 
same  pen,  and  that  he  saw  no  other  pen  that  day.  Out- 
side of  the  experts,  the  contestants  have  produced  no  wit- 
nesses to  prove  the  contrary  of  what  was  testified  to  by 
Mr.  Ruff  and  the  subscribing  witnesses.    There  is  not  a 


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McWILLIAMS'  ESTATE.  581 

1918.]  Opinion  of  Court  below. 

witneBB  produced  by  the  contestants  who  says  that  this 
fifth  paragraph  was  not  in  the  will  at  the  time  David 
Mc Williams  signed  it  There  is  not  a  witness  produced 
by  the  contestants  who  says  that  this  fifth  paragraph 
was  inserted  by  Harry  E.  Ruflf  after  or  immediately  be- 
fore Barbary  Mc  Williams'  death,  without  the  knowledge 
or  consent  of  David  Mc  Williams,  or  out  of  his  presence; 
and  there  is  not  a  witness  who  says  that  this  fifth  i>ara- 
graph  was  written  with  a  different  pen  and  with  a  dif- 
ferent ink  from  that  used  in  writing  the  balance  of  the 
will. 

The  fact  that  David  McWilliams  signed  the  paper, 
which  is  not  denied  by  the  contestants,  is  evidence  that  he 
knew  the  contents  of  this  paper  at  the  time  of  signing 
and  that  the  fifth  paragraph  was  there  at  that  time.  Of 
course,  this  is  presumptive  evidence  but  still  it  must  be 
overcome.  Then,  again,  the  fact  that  these  contestants, 
in  their  petition  for  a  citation  on  the  framing  of  an  issue, 
averred  undue  influence  on  the  part  of  Harry  E.  Ruff 
and  Ida  M.  Buff  in  procuring  the  execution  of  this  fifth 
paragraph,  is  an  admission  that  it  was  in  the  will  at  the 
time  it  was  executed  by  David  McWilliams.  We  have, 
in  addition  to  all  of  this,  the  testimony  of  Harry  E.  Buff 
that  the  fifth  paragraph  was  written  in  the  will  before  it 
was  signed  by  the  testator,  together  with  his  testimony 
and  that  of  Daniel  Bogers  as  to  the  whereabouts  of  the 
will  and  the  envelope  in  which  it  was  kept.  All  point 
conclusively  that  this  fifth  paragraph  was  never  written 
in  this  will  at  the  time  or  in  the  manner  the  contestants 
now  contend. 

Against  this  positive  testimony  we  have  the  testimony 
of  two  experts  on  handwriting,  namely,  John  H.  Mc- 
Klveen  and  George  W.  Wood  whose  testimony,  when 
boiled  down,  amount  to.  this :  that  there  was  a  different 
pen  and  a  different  ink  used  in  writing  the  fifth  para* 
graph  of  this  will.  They  do  not  pretend  to  say  it  was 
written  at  a  different  time  from  the  writing  and  execu' 
tiou  of  the  balance  of  the  will,  or  that  it  was  not  written 


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532  McAVILLIAMS'  ESTATE. 

Opinion  of  Court  below.  [259  Pa. 

in  the  presence  of  the  testator  and  at  his  direction.  The 
inference  we  are  expected  to  draw  from  their  testimony 
that  it  was  written  with  a  di£ferent  pen  and  ink  is  that 
this  fifth  paragraph  was  placed  in  the  will  after  its  execu- 
tion. This  we  cannot  do  and  we  refuse  to  allow  a  jury  to 
predicate  a  guess  on  that  testiiuony  alone.  It  is  true, 
the  scrivener  said  that  he  used  but  one  pen  and  one  ink 
in  writing  the  entire  will  which  is  in  conflict  with  this 
expert  testimony,  but  if  different  pens  and  ink  had  been 
used^  we  are  unable  to  see  how  it  would  have  hurt  his 
case  to  have  so  testified.  An  examination  of  the  will,  es- 
pecially the  signatures  of  the  testator  and  that  of  the 
witnesses,  show  as  marked  a  difference  as  to  the  color  of 
the  ink  as  there  exists  between  the  fifth  paragi*aph  and 
the  balance  of  the  body  of  the  will.  And  so  an  examina- 
tion and  comparison  of  the  part  complained  of  and  other 
parts  of  the  will  do  not  convince  us  that  it  would  be  safe 
to  draw  the  conclusion  desired  by  the  contestants.  This 
is  our  opinion  of  the  evidence. 

The  evidence  of  these  two  experts  do  not  corroboi*ate 
any  testimony  on  the  part  of  the  contestants  and  is  not 
sufficient  in  itself,  when  taken  alone,  to  prove  that  this 
fifth  paragraph  was  added  to  this  will  by  Harry  E.  Ruff 
after  its  execution  by  the  testator.  Our  notion  of  the  law 
is  that  expert  testimony,  such  as  was  offered  in  this  case, 
cannot  be  received  as  independent  testimony  to  establish 
the  facts  or  conclusions  sought  by  the  contestants  to  be 
established  or  drawn.  Such  testimony  can  only  be  re- 
ceived as  corroborating  other  direct  or  positive  evidence 
as  to  some  fact  in  issue. 

In  Fulton  v.  Hood  et  al.,  34  Pa.  365,  a  question  as  to 
the  alteration  of  the  date  in  the  bond  was  involved.  The 
person  who  wrote  it  testified  positively  that  no  alteration 
was  made  after  the  signature.  On  the  other  hand  the 
sons  of  the  decedent,  on  account  of  whose  indebtedness 
the  bond  was  given,  testified  that  the  date  was  changed. 
The  allegation  of  the  defendant  was  that  the  last  line  of 
the  instrument  had  been  added  after  its  execution  and  de- 


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McWILLIAMS^  ESTATE.  533 

1918.J  Opiuiou  of  Court  below — Asaignroent  of  Error. 
livery,  and  after  it  liad  been  taken  away  by  the  agent  of 
the  plaintiffs.  To  meet  this  allegation,  the  plaintiffs 
were  allowed  to  call  experts,  and  prove  by  them  that, 
in  their  opinion,  the  whole  instrument,  including  the  last 
line,  was  written  by  the  same  hand,  with  the  same  pen 
and  ink,  and  at  the  same  time.  The  admission  of  this  ex- 
pert testimony  was  the  subject  of  an  assignment  of  error. 
Mr.  Justice  Strong  in  delivering  the  opinion  of  the 
court  said  (page  370) : 

^^It  is  to  be  observed,  that  the  evidence  was  offered 
only  after  direct  testimony  had  been  given  to  prove  that 
the  bond  was  genuine,  and  that  it  was  in  the  same  con- 
dition as  when  signed  by  the  defendant.  It  was  admit- 
ted, not  as  independent,  but  as  corroborative  evidence." 

In  the  case  of  Burkholder  v.  Plank,  69  Pa.  225,  we  find 
this  language  at  the  conclusion  of  the  opinion  of  Mr. 
Justice  Shabswood  : 

"It  may  be  considered  as  well  settled  in  this  State  by 
Fulton  V.  Hood,  34  Pa.  365,  and  Travis  v.  Brown,  43  Pa. 
9,  that  after  direct  evidence  has  been  given  on  th^  sub- 
ject of  handwriting,  the  evidence  of  experts  is  admissible 
in  corroboration." 

To  the  same  effect  we  have  the  late  cases  of  Masson's 
Est.,  198  Pa.  636,  and  Puller's  Est,  222  Pa.  182. 

The  evidence  upon  the  part  of  the  contestants  we  think 
is  insufficient  to  justify  our  sending  an  issue  to  the  Court 
of  Common  Pleas  for  trial  to  determine  whether  the  fifth 
paragraph  in  his  will  was  executed,  all  other  questions 
being  abandoned.  We  would,  in  conscience,  be  con- 
strained, if  sitting  as  a  trial  judge,  to  set  aside  a  verdict 
if  found  by  a  jury  against  this  will  and,  therefore,  we  are 
of  the  opinion  that  the  issue  should  be  refused. 

The  court  dismissed  the  petition.  Homer  Mc Williams, 
S.  S.  Mc  Williams  and  WilUam  McWilUams,  Jr.,  ap- 
pealed. 

Error  assigned  was  the  decree  of  the  court. 


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534  McWiLLIAMS'  ESTATE. 

Opinion  of  the  Court.  [269  Pa. 

John  E.  Kunkle,  for  appellants. 

John  P.  Pinkerton^  for  appellees. 

Per  Curiam,  January  7, 1918 : 

The  decree  dismissing  the  petition  for  an  issue  devisa- 
vit  vel  non  and  sustaining  the  decision  of  the  register 
admitting  the  will  of  David  McWilliams,  deceased,  to 
probate  is  affirmed  on  the  opinion  of  the  learned  judge 
of  the  Orphans'  Court. 


Rakie,  Appellant,  v.  Jefferson  &  Clearfield  Coal  & 
Iron  Company. 

Workmen's  compensation  law — Award  hy  Workmen's  Compen- 
sation Board — Appeal  to  Common  Pleas  Court — Order  remanding 
case  to  hoard — Erroneous  order — Practice,  C,  P, —  Practice,  Su- 
preme Court — Interlocutory  order. 

On  appeal  to  the  Conunon  Pleas  from  a  decision  of  the  Work- 
men's Compensation  Board,  afSrming  the  finding  of  a  referee  in 
favor  of  a  claimant,  the  court  should  enter  a  final  judgment 
awarding  to  each  dependent  the  amount  due  him;  and  where  the 
court  remands  the  case  to  the  Workmen's  Compensation  Board 
for  adjustment  in  accordance  with  the  court's  opinion,  the  Su- 
preme Court,  on  appeal,  will  remand  the  record  to  the  Common 
Pleas  with  directions  to  enter  a  final  judgment. 

Argued  Oct.  1,  1917.  Appeal,  No.  166,  Oct.  T.,  1917, 
by  plaintiff,  from  order  of  C.  P.  Indiana  Co.,  June  T., 
1917,  No.  170,  remanding  case  to  Workmen's  Compensa- 
tion Board,  in  case  of  Mrs.  Felix  Bakie  v.  Jefferson  & 
Clearfield  Coal  &  Iron  Company.  Before  Brown,  C.  J., 
Mbstrbzat,  Stewart,  Frazer  and  Walling,  JJ.  Re- 
versed. 

Appeal  from  Workmen's  Compensation  Board.  Be*' 
fore  Langham,  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 


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RAKIE,  AppeL,  v,  JEFFERSON  &  C.  C.  &  1.  CO.    635 
1918.]  Statement  of  Facts — Opinion  of  the  Court. 

The  court  reversed  the  decision  of  the  Workmen's 
Compensation  Board/  affirming  the  decision  of  the  ref- 
eree as  to  the  compensation  to  which  the  dependents  of 
the  deceased  were  entitled,  and  remanded  the  case  to  the 
Workmen's  (Compensation  Board  for  adjustment  in  ac- 
cordance with  the  schedule  decided  upon  by  the  court. 
Plaintiff  appealed. 

Error  assigned  was  the  order  of  the  court 

8.  J.  Telford,  for  appellant. 

Henry  I.  Wilson,  for  appellee. 

Opinion  by  Me.  Justice  Mbstebzat,  January  7, 1918; 

This  proceeding  was  instituted  before  the  Workmen's 
Compensation  Board  by  Mrs.  Felix  Bakie  to  secure  com- 
pensation for  the  death  of  her  husband  who  was  killed 
while  he  was  in  the  service  of  the  defendant  company. 
The  referee  filed  his  findings  of  fact  and  conclusions  of 
law  and  made  an  award  against  the  defendant  company 
from  which  the  latter  appealed  to  the  Workmen's  Com- 
pensation Board.  It  affiirmed  the  award  of  the  referee^ 
and  an  appeal  was  taken  to  the  Court  of  Common  Pleas 
of  Indiana  County.  The  learned  judge  of  the  Court  of 
Common  Pleas  reviewed  the  case  in  an  exhaustive  opin- 
ion and  made  an  order  sustaining  the  appeal^  reversing 
the  decision  of  the  referee  as  affirmed  by  the  board^  and 
''remanded  the  case  to  the  Workmen's  Compensation 
Board  for  adjustment  in  accordance  with  the  following 
award,"  the  terms,  as  fixed  by  him,  then  being  given. 

It  is  apparent  that  the  order  entered  by  the  court  is  not 
a  final  judgment  from  which  only  an  appeal  will  lie 
to  this  court.  Instead  of  remanding  the  caise  to  the  board 
for  further  and  final  action,  which  it  had  already  taken, 
the  court  should  have  entered  a  final  judgment  award- 
ing to  each  dependent  the  amount  due  him  or  her  in  the 
opinion  of  the  court.    There  was  no  occasion  for  any 


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536    RAKIE,  Appel.,  r.  JEFFERSON  &  C.  C.  &  I.  CO. 

Opinion  of  the  Court.  [269  Pa. 

further  adjustment  by  the  board;  it  had  taken  final 
action,  and  the  appeal  which  the  learned  court  had  b^ore 
it  was  from  such  action.  The  appeal  which  we  are 
authorised  to  hear  and  determine  is  not  from  the  award 
of  the  board  but  from  the  judgment  of  the  court. 

The  record  is  remanded  that  the  court  below  may  enter 
a  final  judgment  on  the  appeal  pending  before  it  from 
the  award  of  the  Workmen's  Compensation  Board. 


Lamb  t?.  Pennsylvania  Railroad  Company, 
Appellant 

Negligence — Master  and  servant — Railroad  company — Safe  place 
in  which  to  work — Assumption  of  risk — Case  for  jury. 

Where  in  an  action  against  a  railroad  company  to  recover  for 
personal  injuries  sustained  by  an  employee  standing  on  a  ladder 
on  the  side  of  a  moving  freight  car,  in  the  discharge  of  his  duties, 
being  caught  between  such  car  and  a  car  on  the  next  track,  it  ap- 
peared that  there  was  not  sufficient  clearance  between  the  two 
tracks  to  afford  a  safe  place  for  plaintiff  to  work ;  that  the  plaintiff 
did  not  know  that  the  clearance  between  the  tracks  was  less  than 
the  standard  clearance  and  was  insufficient,  but  had  walked  be- 
tween cars  standing  on  such  tracks  hundreds  of  times  before  in 
safety,  the  clearance  ordinarily  being  eighteen  inches;  and  that 
at  the  time  of  the  accident  he  was  caught  by  reason  of  the  sudden 
lurching  of  the  car  on  the  next  track,  the  question  of  defendant's 
negligence  and  plaintiff's  assumption  of  risk  were  for  the  jury,  and 
a  verdict  for  the  plaintiff  will  be  sustained. 

Argued  Oct.  3,  1917.  Appeal,  No.  42,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  C.  P.  Washington  Co., 
Nov.  T.,  1915,  No.  423,  on  verdict  for  plaintiff,  in  case  of 
J.  W.  Lamb  v.  Pennsylvania  Railroad  Company.  Be- 
fore Brown,  C.  J.,  Mbstebzat,  Stewart,  Prazbb  and 
Walung,  JJ.    Afllrmed. 

Trespass  to  recover  damages  for  personal  injuries. 
lEWiN,  J.,  filed  the  following  opinion,  sur  defendant's 
motion  for  judgment  n.  o.  v. : 


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LAMB  V.  PENNA.  R.  R.  CO.,  Appellant.  537 

1918.]  Opinion  of  Court  below. 

This  is  admittedly  a  close  ease.  Counsel  for  the  plain- 
tiff in  his  brief  speaks  of  it  as  a  border  line  case,  but  after 
mature  deliberation  we  have  come  to  the  conclusion  that 
it  was  a  case  for  the  jury  and  not  the  court  to  decide. 
The  verdict  of  the  jury  establishes  the  following  facts, 
which  are  supported  by  sufBcient  evidence:  The  acci- 
dent occurred  in  the  Pennsylvania  Railroad  yards  at 
Youngwood,  in  Westmoreland  County,  in  what  was 
known  as  the  loaded  classification  yard.  In  that  yard 
there  were  at  least  nineteen  tracks  leading  off  from  what 
is  known  as  the  ladder  track.  The  plaintiff  had  worked 
in  that  yard  and  the  other  yards  adjoining  for  fifteen 
years,  with  the  exception  of  two  years  about  eight  or 
ten  years  before  the  accident  when  he  was  working  on 
the  road.  He  was  thoroughly  familiar  with  all  the  yards 
and  with  all  the  tracks  and  had  worked  over  all  the 
tracks  handling  all  kinds  of  cars. 

On  the  morning  of  the  accident  No.  11  track  was  full  of 
loaded  coal  cars  for  more  than  two  hundred  feet  at  least, 
down  from  the  ladder  track.  The  conductor  of  the  shift- 
ing crew  ordered  them  to  take  a  certain  empty  car  off 
track  No.  10  and  place  it  on  track  No.  19,  and  in  order 
to  get  that  car  they  had  to  hitch  on  and  pull  these  eight 
or  ten  cars  off  No.  10  track,  go  up  the  ladder  track  and 
then  back  down  on  track  No.  19  where  they  left  this  one 
car.  They  then  pulled  back  up  on  to  the  ladder  track 
and  backed  down  to  No.  10  track  and  down  No.  10  track 
for  the  purpose  of  coupling  up  with  the  remaining  cars 
standing  on  that  track. 

The  plaintiff  was  a  brakeman  and  as  the  cars  were  be- 
ing backed  by  the  engine  down  No.  10  track  he  was  stand- 
ing on  the  ladder  on  the  side  of  the  car  next  to  No.  11 
track,  the  ladder  being  close  to  the  front  end  of  the  car. 
He  was  occupying  that  position  so  as  to  be  able  to  see 
that  the  car  properly  coupled  when  backed  against  the 
end  of  the  train  of  cars  standing  on  that  track.  The  car, 
<m  the  side  of  which  he  was  riding,  was  empty.  He  "was 
standing  with  his  foot  or  feet  on  the  stirrup  or  lower  step 


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538  LAMB  v.  PENNA.  R.  R.  CO.,  Appellant. 

Opinion  of  Court  below.  [259  Pa. 

of  the  ladder  and  his  left  arm  thrown  over  the  top  of  the 
car.  There  was  a  flange  on  the  top  of  the  bed  of  the  car^ 
which  extended  out  to  about  even  with  the  edge  of  the 
posts  which  supported  the  side  of  the  car  bed.  It  was 
usual  and  cust(Mnary  for  brakemen  riding  the  cars  in  on 
these  tracks  to  ride  on  the  ladder  on  the  side  of  the  car 
just  as  the  plaintiff  was  doing. 

There  were  some  eight  or  nine  cars  being  shifted  back 
on  to  No.  10  track,  the  same  cars  that  had  been  taken  off 
No.  10  in  order  to  get  the  one  car  that  was  to  be  placed 
on  No.  19  track.  As  the  end  of  the  car  on  which  the  plain- 
tiff was  standing  reached  a  point  about  two  hundred 
feet  from  the  ladder  track  down  on  No.  10  track  the 
plaintiff  was  caught  between  the  side  of  the  car  on  which 
he  was  riding  and  the  side  of  a  loaded  car  on  track  No. 
11  and  was  squeezed  and  rolled  round  once  between  the 
cars  and  then  fell  to  the  ground  between  the  tracks ;  by 
reason  of  which  the  plaintiff  was  very  seriously,  and,  it 
was  claimed,  permanently  injured.  The  plaintiff 
claimed  to  recover  from  the  company  on  the  ground  that 
there  was  not  sufficient  clearance  between  tracks  Nos.  10 
and  11  to  afford  the  plaintiff  a  reasonably  safe  place  in 
which  to  work,  and  the  plaintiff's  right  of  recovery  was 
resisted  on  two  grounds  especially,  first,  that  he  had  been 
guilty  of  contributory  negligence,  and,  second,  that  he 
was  thoroughly  familiar  with  the  location  of  the  tracks, 
had  worked  in  the  yard  for  almost  fifteen  years,  and  over 
these  tracks  Nos.  10  and  11  for  at  least  ten  years,  and 
that  he  must  be  held  to  have  assumed  the  risk. 

The  question  of  the  plaintiff's  contributory  negligence 
was  clearly  a  question  for  the  jury  and  we  may  dismiss 
it  from  any  further  consideration  and  consider  the  ques- 
tion as  to  whether  or  not  the  court  should  enter  judg- 
ment in  favor  of  the  defendant  n.  o.  v.  on  the  ground  that 
the  plaintiff  appreciated  the  danger  and  must  be  con- 
clusively presumed  to  have  assumed  the  risk. 

The  plaintiff  testified  that  when  he  was  lying  down  <m 
the  ground  he  stretched  his  arms  out  and  with  his  hands 


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LAMB  V.  PENNA.  R.  R.  CO.,  Appellant.  .         539 
1918.]  Opiniou  of  Court  below, 

could  toucli  one  rail  of  track  No.  10  and  one  rail  of  track 
No.  11^  and  he  estimated  that  the  tracks  were  6  to  6  feet 

6  inches  apart.  The  engineer  called  by  the  defendant 
testified  that  at  a  point  three  hundred  feet  from  the  lad- 
der track  the  distance  between  track  No.  10  and  track 
No.  11  was  6  feet  7  inches,  and  that  two  hundred  feet 
from  the  ladder  track  the  distance  between  the  two  tracks 
was  6  feet  9  inches.  The  standard  gauge  between  tracks 
is  7  feet  to  7  feet  5  inches.  Louis  Johnson,  a  witness 
called  by  the  plaintiff,  testified  that  he  had  been  track 
foreman  for  the  defendant  company  at  the  Youngwood 
yards  and  that  he  had  helped  to  lay  the  tracks  in  this 
yard.  He  said  they  had  aimed  in  laying  the  tracks  to 
work  to  a  gauge  of  7  feet  between  the  tracks,  but  that 
part  of  the  ground  over  which  they  laid  the  tracks  was  a 
swamp,  which  they  had  to  fill  in,  and  that  in  laying 
tracks  9, 10  and  11  they  did  not  maintain  the  gauge  of  7 
feet,  but  that  they  were  laid  with  a  narrower  space  than 

7  feet  between  them. 

The  cai*  on  which  the  accident  occurred  was  a  Wheel- 
ing &  Lake  Erie  gondola  car  No.  50539.  Mr.  Tarbell,  a 
mechanical  engineer  for  that  road  called  by  the  plaintiff, 
,  testified  that  that  was  one  of  the  widest  of  cars  and  that 
its  width  over  all  was  10  feet  1%  inches ;  that  on  the  top 
of  the  bed  of  the  car  there  were  flare  boards  which  extend- 
ed up  and  out  even  with  the  outside  edge  of  the  posts  and 
that  the  posts  at  the  side  of  the  car  were  about  6  inches 
thick.  The  standard  width  of  a  track  between  the  rails 
is  4  feet  8%  inches,  and  the  average  width  of  the  ball  of 
a  rail,  or  that  part  on  which  the  wheels  run,  is  2^  inches. 
There  was  a  very  slight  bend  in  the  tracks  at  or  near 
where  the  accident  occurred,  but  there  was  no  evidence 
to  show  what  effect  that  would  have  upon  the  space  be- 
tween the  cars  on  No.  10  and  No.  11  tracks.  The  plaintiff 
testified  that  he  had  walked  through  between  the  cars  on 
tracks  Nos.  10  and  11  hundreds  of  times  and  that  in  rid- 
ing a  car  in  on  track  No.  10,  as  he  was  doing  on  the  morn* 
ing  of  the  accident,  he  usually  had  a  space  of  about  eight- 


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540  LAMB  V.  PEXXA.  B.  R.  CO.,  Appellant. 

bpinion  of  Court  below.  [259  Pa. 

een  inches  between  his  car  and  the  car  or  cars  on  track 
No.  11.  He  testified  further  that  just  before  he  was 
caught  between  the  cars  on  the  morning  of  the  accident, 
the  car  on  which  he  was  riding  made  a  lurch  and  sagged 
over  towards  the  cars  on  track  No.  11,  and  that  it  was  be- 
cause of  this  that  he  was  caught  between  the  cars ;  that 
he  did  not  know  that  he  would  have  been  caught  had  the 
car  not  made  that  lurch.  He  testified  further  that  he  did 
not  know  what  caused  the  car  to  make  the  lurch,  and 
there  w^as  no  evidence  to  show  that  either  the  car  on 
which  he  was  riding  or  track  No.  10  was  not  in  good  con- 
dition. The  plaintiff  claimed  that  he  was  riding  the  car 
in  in  the  usual  and  ordinary  way;  that  he  had  never 
heard  of  any  brakeman  being  injured  by  being  caught  be- 
tween cars  at  that  point,  and  that  he  did  not  know  that 
the  place  was  dangerous. 

Mr.  Patterson,  an  assistant  trainmaster  of  the  Pitts- 
burgh Division  of  the  P.  R.  R.  Co.,  with  an  office  at 
Youngwood,  testified  that  he  regarded  the  place  where 
the  accident  occurred  as  reasonably  safe;  the  question 
and  answ^er  of  Mr.  Patters(m  being  as  follows:  "Q.  It 
was  the  aim  of  the  company  that  the  place  where  this  ac- 
cident occurred — it  was  the  aim  of  the  company  at  that 
place  to  provide  a  reasonably  safe  place  for  the  brake- 
men  to  perform  their  duties,  wasn't  it?  A.  Yes,  and  in 
view  of  the  fact  that  they  had  performed  the  duties  there 
for  sixteen  years  without  an  accident  until  this  accident, 
w^as  considered  reasonably  safe." 

Mr.  Cox,  a  witness  called  for  the  defendant,  who  was 
the  general  yardmaster  at  Youngwood,  testified  that  this 
was  not  a  safe  place  for  the  plaintiff  to  ride  on  the  side 
of  the  car  and  that  the  only  safe  place  for  him  to  ride  was 
on  the  inside  of  the  car  near  the  brake. 

It  was  well  said  by  counsel  that  this  was  a  border  line 
case,  because  it  is  a  question  of  a  few  inches  one  way  ov 
another.  'If  the  space  between  these  tracks  had  been  a 
few  inches  less  it  would  have  been  obvious  to  any  one 
working  there  that  it  was  dangerous  and  they  would  be 


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LAMB  V.  PENNA.  R.  R.  CO.,  AppeUant.  541 

1918.]  Opinion  of  Court  below, 

held  to  have  assumed  the  risk,  and  if  the  space  had  been 
a  few  inches  greater  than  it  was  the  place  would  have 
been  perfectly  safe  and  no  accident  would  have  happened. 
But  in  view  of  all  the  circumstances,  considering  that 
the  plaintiff  had  worked  over  those  tracks  and  between 
the  cars  for  years,  that  no  accident  had  ever  happened, 
that  men  in  the  employ  of  the  company,  who  were  his  su- 
periors and  who  had  worked  in  the  yard  for  years,  dif- 
fered in  their  opinions  as  to  whether  it  was  a  safe  place 
to  work  or  not,  and  in  view  of  the  further  fact  that  there 
is  no  evidence  to  show  that  the  plaintiff  actually  knew 
that  the  clearance  between  tracks  Nos.  10  and  11  w^as  less 
than  the  standard  clearance  between  tracks  in  those 
yards,  we  think  the  question  of  the  plaintiff's  assumption 
of  risk  was  a  question  of  fact  for  the  jury  and  could  not 
be  ruled  as  a  question  of  law  by  the  court. 

In  Madden  v.  Lehigh  Valley  R.  R.  Co.,  236  Pa.  104,  it 
is  said :  ^^Before  the  maxim,  volenti  non  fit  injuria,  can 
be  invoked,  it  must  be  shown  that  the  plaintiff  not  only 
knew,  or  had  full  opportunity  to  know  the  circumstances, 
but  that  he  appreciated,  or  should  have  appreciated,  the 
extent  of  the  danger,  and  that  he  voluntarily  exposed 
himself  to  it." 

In  Valjago  v.  Carnegie  Steel  Co.,  226  Pa.  514,  it  is 
said :  "In  a  claim  for  negligence  by  an  employee  against 
his  employer  the  maxim  ^volenti  non  fit  injuria'  cannot 
be  invoked  by  the  defendant  unless  he  shows  that  the 
plaintiff  not  only  knew  the  circumstances,  but  that  he 
also  appreciated^  the  full  extent  of  the  danger  to  which 
he  was  exposed  by  his  employment,  and  that  he  volun- 
tarily exposed  himself  to  it.  This  makes  the  question  of 
the  assumption  of  risk  one  of  fact,  unless  from  the  nature 
of  the  case  it  is  clear  of  dispute  in  this  connection." 

In  Madden  v.  Lehigh  Valley  R.  R.  Co.,  236  Pa.  104,  al- 
ready cited,  it  is  further  said,  in  the  opinion  of  the  court, 
that, — ^**Although  the  decedent  ptissed  the  point  where 
he  was  killed  just  before  the  accident  and  had  been  over  it 
in  the  performance  of  his  duties  at  other  times,  it  is  not 


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542  LAMB  v.  PEXNA.  R.  R.  CO.,  AppeUant. 

Opinion  of  Court  below.  [269  Pa. 

clear  that  he  was  in  a  position  to  see  and  appreciate  the 
danger  presented.  Particularly  is  this  so  when  we  con- 
sider the  testimony  of  the  defendant's  witness  Kane^ — ^its 
supervisor  of  tracks  who  had  charge  of  the  deposit  of 
ashes  in  question^ — to  the  effect  that  so  far  as  he  could 
see  they  presented  no  danger.  This  apparently  was  an 
instance  where  the  risk  was  difficult  to  estimate,  and 
under  such  circumstances  the  case  was  for  the  jury. 
'Where  there  is  any  doubt  whether  the  employed  was 
acquainted  or  should  have  been  acquainted  with  the  risk/ 
the  determination  of  the  question  is  necessarily  for  the 
jury':  Rummell  v.  Dilworth,  111  Pa.  343,  351.'' 

In  Stewart  v.  Central  R.  R.  of  N.  J.,  235  Pa.  311,  it  is 
said :  ''While  an  employee  is  deemed  to  assume  the  risks 
ordinarily  and  reasonably  connected  with  his  employ- 
raent,  and  is  presumed  to  have  notice  of  those  which  are 
obvious,  the  employer  is  fixed  with  the  duty  to  maintain 
instruments,  appliances  and  conditions  which  do  not  ex- 
pose his  employee  to  dangers  not  ordinarily  or  reason- 
ably incident  to  the  employment;  the  latter  has  the 
right  to  presume  that  his  employer  has  performed  this 
duty,  and  he  does  not  assume  risks  growing  out  of  un- 
usually dangerous  conditions  not  to  be  reasonably  an- 
ticipated by  him. 

"Where  the  measure  of  duty  is  a  standard  of  ordinary 
and  reasonable  care,  the  degree  of  which  varies  accord- 
ing to  the  circumstances,  and  where  the  facts  are  dis- 
puted, or  there  is  any  reasonable  doubt  as  to  the  inference 
to  be  drawn  from  them,  the  issues  must  be  submitted  to 
the  jury." 

In  Vorhees  v.  The  Lake  Shore  &  Michigan  Southern 
Ry.  Co.,  193  Pa.  115,  the  plaintiflP  was  injured  while  in 
the  act  of  getting  down  from  the  top  of  a  car,  by  coming 
in  contact  with  a  car  standing  on  a  siding,  by  reason  of 
that  siding  having  been  constructed  without  a  sufficient 
clearance  between  it  and  the  main  track.  In  disposing 
of  the  question  of  the  assumption  of  risk  Mr.  Chief  Jus- 
tice Stbrjibtt  paid;  "Whether,  from  his  experi^cei  or 


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LAMB  v.  PENNA.  R.  R.  CO.,  Appellant.        .    543 
1918.]  Opinion  of  Court  bdow. 

from  opportunities  of  examination  afforded  him  b^ore 
the  time  of  the  accident  or  otherwise,  he  knew,  or  ought 
to  have  known,  the  dangerous  character  of  that  siding, 
whether  or  not  he  was  justified  in  choosing  the  time  and 
manner  of  his  descent  from  the  top  of  the  car,  and  wheth- 
er or  not,  under  the  circumstances,  and  especially  in  view 
of  the  duties  he  was  required  to  perform,  he  was  guilty 
of  any  act  of  negligence  which  contributed  to  his  injury, 
etc.,  were  necessarily  questions  of  fact  for  the  jury,  under 
all  the  evidence  before  them.'' 

In  Fitzgerald  v.  Connecticut  River  Paper  Co.,  155 
Mass.  155,  the  syllabus  correctly  states  the  whole  case  as 
follows :  "A  woman,  in  leaving  the  mill  in  which  she  was 
employed,  by  means  of  steps  covered  with  ice,  fell  and 
was  injured.  In  an  action  against  her  employer  to  re- 
cover for  such  injuries,  there  was  evidence  that  the  ice 
was  due  to  exhaust  steam  from  an  engine,  run  by  the  de- 
fendant, falling  upon  the  steps  and  freezing,  so  as  to 
cause  varying  degrees  of  slipperiness  in  different  states 
of  the  weather ;  that  the  plaintiff  was  fifty-one  years  of 
age  and  had  worked  in  the  mill  for  thirteen  years ;  that 
the  steps  afforded  the  only  means  of  leaving  the  mill,  and 
fifty  women  working  in  the  same  room  with  the  plaintiff 
used  them  daily ;  that  the  plaintiff  knew  the  steps  to  be 
icy  and  more  or  less  slippery  in  the  winter  season ;  and 
that  at  the  time  of  the  accident  she  was  going  down  the 
steps  with  a  dinner  pail  in  one  hand,  and  holding  on  to 
the  railing  with  the  other.  Held,  that  there  was  evidence 
tending  to  show  that  the  defendant  was  negligent  and 
that  the  plaintiff  was  in  the  exercise  of  due  care;  that 
whether  the  plaintiff  assumed  the  risk  was  a  question  of 
fact  for  the  jury ;  and  that  it  could  not  be  said  as  a  mat- 
ter of  law  that  she  appreciated  the  risk  or  that  she  was 
not  acting  under  such  an  exigency  as  would  justify  her 
in  going  down  by  the  steps,  and  deprive  her  act  of  that 
voluntary  character  which  is  referred  to  in  the  maxim, 
volenti  non  fit  injuria." 

In  Johnston  v,  Oregon  S,  L,  &  TJ,  N,  Ry.  Co.^  31  P^c, 


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544  LAMB  v.  PENNA.  B.  R.  CO.,  Appellant. 

Opinion  of  Court  below.  [259  Pa. 

'  Bep.  283,  the  court  said :  ''An  open  and  yisible  risk  is  sach 
as  would  in  an  instant  appeal  to  the  senses  of  an  intelli- 
gent person :  Wood  on  Master  &  Servant,  763.  It  is  one  so 
plain  that  a  person  familiar  with  the  business  would 
instantly  recognize  it.  It  is  a  risk  about  which  tiiere 
could  be  no  difference  of  opinion  in  the  minds  of  intelli- 
gent persons  accustomed  to  the  service.  It  is  not  ex- 
pected that  a  servant  will  make  close  scrutiny  into  all  the 
details  of  the  instrumentalities  with  which  he  deals.  The 
servant  is  expected  to  observe  such  objects  only,  in  the 
absence  of  notice,  as  would  in  an  instant  convince  him 
of  their  danger.  It  is  not  expected  of  a  switchman  that 
he  should  carefully  measure  the  difference  between  a 
switch  target  and  rail.  This  is  the  duty  of  the  master 
and  the  servant  has  the  right  to  assume  that  the  track  or 
other  obstruction  is  at  a  reasonably  safe  distance,  in  the 
absence  of  anything  to  excite  special  apprehension  of 
danger." 

In  Valjago  v.  Carnegie  Steel  Co.,  226  Pa.  514,  519,  the 
court  said:  ''They  urge  the  application  of  the  maxim 
volenti  non  fit  injuria,  but  before  this  maxim  can  be  in- 
voked it  must  be  shown  that  the  plaintiff  not  only  knew 
the  circumstances,  but  that  he  also  appreciated  the  full 
extent  of  the  danger  to  which  he  was  exposed  by  his 
employment,  and  that  he  voluntarily  exposed  himself 
to  it." 

We  think  the  authorities  cited  show  clearly  that  it 
would  have  been  error  for  the  court  to  have  taken  this 
case  from  the  jury  and  to  have  instructed  the  jury  that 
the  plaintiff  must  be  conclusively  presumed  to  have  as- 
sumed the  risk.  The  injury  to  the  plaintiff  by  reason  of 
his  riding  on  the  side  of  the  car  and  being  caught  be- 
tween that  car  and  a  car  on  track  No.  11  by  reason  of  the 
width  of  the  car  upon  which  he  was  riding  and  the  lurch- 
ing of  the  car  at  the  time  of  the  accident,  and  the 
further  fact  that  the  distance  between  the  two  tracks  was 
less  than  the  standard  gauge,  was  not  such  an  injury  as 
was  reasonably  incident  to  the  plaintiff's  employment, 


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LAMB  V.  PENNA.  R.  R.  CO.,  Appellant,  545 

1918.]  Opinion  of  Court  below — Opinion  of  the  Court. 
and  hence  it  could  not  be  said  that  the  plaintiff  had  as- 
sumed the  risk  of  that  injury^  unless  it  was  first  shown 
that  he  knew  that  those  tracks  were  less  than  the  stand- 
ard distance  apart,  and  that  he  knew  and  fully  appreci- 
ated the  danger  to  which  he  was  exposed  in  riding  in  on 
the  side  of  the  car  at  the  time  the  accident  occurred. 
And,  as  we  have  already  pointed  out,  there  being  no  evi- 
dence to  show  that  the  plaintiff  knew  the  exact  distance 
between  the  two  tracks,  or  that  they  had  been  constructed 
and  maintained  with  a  less  distance  between  them  than 
the  standard  gauge  between  tracks  maintained  in  that 
yard,  and  in.  view  of  the  further  fact  that  he  had  passed 
over  those  tracks  on  cars  and  between  the  cars  hundreds 
of  times  for  many  years  and  never  had  heard  of  an  acci- 
dent, the  court  could  not  hold  as  a  matter  of  law  that  he 
had  assumed  the  risk,  but  was  bound  to  submit  it  to  the 
jury  as  a  question  of  fact.  It  follows,  therefore,  that  the 
motion  for  judgment  for  defendant  non  obstante  vere- 
dicto must  be  overruled. 

Verdict  for  plaintiff  for  |7,232.50  and  judgment  there- 
on.   Defendant  appealed. 

Errors  assigned  were  rulings  on  evidence,  answers  to 
points,  in  refusing  to  direct  a  verdict  for  defendant  and 
in  refusing  to  enter  judgment  for  defendant  n.  o.  v. 

Rufus  fif.  Mwrriner,  with  him  James  A.  Wiley,  of  Wiley 
d  Marriner,  for  appellant. 

A.  J.  Eckles,  with  him  Harry  D.  Hamilton,  for  ap- 
pellee. 

Opinion  bt  Mr.  Justice  Mbstrbzat,  January  7, 1918 : 
We  have  carefully  considered  the  testimony  in  this 
case,  and  the  briefs  of  counsel  and  the  authorities  cited 
therein,  and  while,  as  suggested  by  both  court  and  coun- 
sel, the  case  may  be  on  the  border  line,  we  are  not  con- 
VOL.  CCLIX — ^35 


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546  LAMB  v.  PENNA.  B.  R.  CO.,  AppeUant. 

Opinion  of  the  Court.  [259  Pa. 

yinced  that  the  record  discloses  reversible  error.  The 
clear,  impartial  and  entirely  adequate  charge  omitted 
nothing  which  was  necessary  to  enable  the  jury  to  intelli- 
gently consider  the  testimony  and  determine  the  facts 
of  the  case.  The  learned  trial  judge  subsequently  re- 
viewed the  facts  and  law  in  an  exhaustive  opinicm  over- 
ruling the  motion  for  judgment  non  obstante  veredicto 
for  defendant  and  amply  vindicating  the  judgment  which 
he  directed  to  be  entered  on  the  verdict. 

There  was  no  evidence  in  the  case  which  would  war- 
rant a  finding  or  even  an  inference  that  the  plaintiflPs 
injuries  resulted  from  his  own  negligence.  This  is  so 
clearly  correct  that  a  discussion  of  the  question  is  not 
required.  The  serious  question,  and  the  one  to  which 
the  appellant  has  d'evoted  its  extended  argument,  is  that 
the  plaintiff  fully  appreciated  the  danger  and  must  be 
conclusively  presumed  to  have  assumed  the  risk  of  the 
service  he  was  performing  at  the  time  he  was  injured. 
The  plaintiff  was  a  brakeman  employed  by  the  defendant 
company  in  its  loaded  classification  yard  at  Youngwood, 
Westmoreland  County,  Pennsylvania.  He  had  worked 
in  that  and  the  defendant's  adjacent  yard  about  thirteen 
years,  was  familiar  with  the  yards  and  the  numerous 
tracks  and  had  handled  all  kinds  of  cars  on  them.  On 
the  morning  of  the  accident,  the  conductor  of  the  shifting 
crew  ordered  them  to  shift  one  of  eight  or  ten  cars  on 
track  No.  10  to  another  track,  and,  in  order  to  do  this, 
they  had  to  pull  all  the  cars  off  the  track,  place  the  one 
car  on  the  other  track,  and  then  replace  the  remaining 
seven  or  nine  cars  on  track  No.  10.  While  backing  these 
cars  on  track  No.  10,  the  plaintiff  was  standing  in  his 
proper  place  on  the  ladder  on  the  side  of  the  car  next  to 
track  No.  11,  the  ladder  being  close  to  the  front  end  of 
the  car  on  which  he  was  riding.  He  was  standing  with 
his  feet  on  the  ladder  and  his  left  arm  thrown  over  the 
top  of  the  car.  While  in  this  position,  he  was  caught 
between  the  side  of  the  car  on  which  he  was  riding  and 
the  side  of  a  loaded  car  on  track  No.  11  and  seriously 


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LAMB  t;.  PENNA.  B.  R.  CO.,  Appellant.  547 

1918.]  Opinion  af  the  Court, 

injured.  The  plaintiff  alleged  that  the  defendant  was 
negligent  in  not  leaving  sufficient  clearance  between 
tracks  Nos.  10  and  11  to  afford  a  safe  place  in  which  to 
work.  Negligence  and  assumption  of  risk  by  plaintiff 
were  the  gi'ounds  of  defense. 

We  have  already  alluded  to  the  fact  that  the  evidence 
was  insufficient  to  convict  the  plaintiff  of  contributory 
negligence.  The  reasons  for  submitting  to  the  jury  the 
question  of  assumption  of  risk  are  so  clearly  stated  in 
the  opinion  of  the  learned  trial  judge  that  we  deem  it  un- 
necessary to  refer  to  and  discuss  the  testimony  bearing 
on  the  question,  as  the  learned  trial  judge  does  so  at 
length  in  his  opinion,  and  shows  conclusively  that  the 
evidence  would  not  support  a  directed  verdict  for  the 
defendant  on  that  issue.  The  facts,  as  stated  by  the 
court,  will  be  found  in  the  opinion  of  the  court  below.  As 
a  result  of  his  reexamination  of  the  case  on  the  motion 
for  judgment,  the  learned  court  concludes  as  follows: 
"In  view  of  all  the  circumstances,  considering  that  the 
plaintiff  had  worked  over  those  tracks  and  between  the 
cars  for  years,  that  no  accident  had  ever  happened,  that 
men  in  the  employ  of  the  company,  who  were  his  su- 
periors and  who  had  worked  in  the  yard  for  years,  dif- 
fered in  their  opinions  as  to  whether  it  was  a  safe  place 
to  work  or  not,  and  in  view  of  the  further  fact  that  there 
is  no  evidence  to  show  that  the  plaintiff  actually  knew 
that  the  clearance  between  tracks  Nos.  10  and  11  was 
less  than  the  standard  clearance  between  tracks  in  those 
yards,  we  think  the  question  of  the  plaintiff's  assump- 
tion of  risk  was  a  question  of  fact  for  the  jury  and  could 

not  be  ruled  as  a  question  of  law  by  the  court The 

injury  to  the  plaintiff  by  reason  of  his  riding  on  the  side 
of  the  car  and  being  caught  between  that  car  and  a  car 
on  track  No.  11  by  reason  of  the  width  of  the  car  upon 
which  he  was  riding  and  the  lurching  of  the  car  at  the 
time  of  the  accident,  and  the  further  fact  that  the  dis- 
tance between  the  two  tracks  was  less  than  the  standard 
guage,  was  not  such  an  injury  as  was  reasonably  inci- 


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548  LAMB  v.  PENNA.  R.  R.  CO.,  AppeUant. 

Opinion  of  the  Court.  [259  Pa. 

dent  to  the  plaintiff's  employment,  and  hence  it  could 
not  be  said  that  the  plaintiff  had  assumed  the  risk  of 
that  injury,  unless  it  was  first  shown  that  he  knew  that 
those  tracks  were  less  than  the  standard  distance  apart, 
and  that  he  knew  and  fully  appreciated  the  danger  to 
which  he  was  exposed  in  riding  in  on  the  side  of  the  car 
at  the  time  the  accident  occurred It  follows,  there- 
fore, that  the  motion  for  judgment  for  defendant  non 
obstante  veredicto  must  be  overruled." 
Judgment  affirmed. 


Kutz's  Estate. 

Equity — Contract  for  sale  of  real  estate— Specific  performance — 
Laches — Failure  to  make  tender — Refusal, 

1.  Tender  of  performance  on  the  part  of  the  plaintiff  is  pre- 
requisite to  a  decree  for  specific  performance  of  a  contract  for  the 
sale  of  real  estate. 

2.  In  a  suit  for  specific  performance,  the  plaintiff  must  show 
he  has  performed,  or  was  ready  to  perform  his  part  of  the  contract, 
and  that  he  has  not  heen  gruilty  of  laches  or  unreasonable  delay, 
and  where  tlie  proof  leaves  the  case  doubtful  the  plaintiff  is  not 
entitled  to  a  decree. 

3.  The  granting  of  specific  performance  by  a  chancellor  is  a 
matter  of  grace,  not  of  right. 

4.  In  a  proceeding  in  the  Orphans'  Court  to  compel  specific  per- 
formance of  a  contract  for  the  sale  of  real  estate  owned  by  a  de- 
cedent, where  it  appeared  that  the  relief  was  not  sought  for  more 
than  three  years  after  performance  was  due  under  the  contract, 
that  the  petitioner  was  a  corporation  whose  board  had  by  resolu- 
tion previously  granted  decedent  and  others  leave  to  withdraw 
from  the  contract;  that  no  tender  of  the  consideration  was  made 
by  the  petitioner;  that  there  was  no  resolution  of  the  board  author- 
izing the  institution  of  the  proceedings  and  many  stockholders  of 
the  petitioner  were  opposed  thereto,  and  where  if  the  decree  prayed 
for  should  be  granted,  a  purchase-money  mortgage  would  have  to 
be  given  upon  which  foreclosure  proceedings  would  in  all  proba- 
bility have  been  necessary  in  the  near  future  causing  delay  and  in- 
convenience and  expense,  the  court  was  not  in  error  in  refusing: 
the  relief  prayed  for. 


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KUTZ^S  ESTATE.  549 

1018.]        Statemeut  of  Facts — Opinion  of  Court  below. 

Ai-gued  Oct.  4,  1917.  Appeal,  No.  139,  Oct.  T.,  1917, 
by  The  Laurel  Hill  Valley  Coal  &  Coke  Company  and 
Henry  D.  Green,  from  decree  of  O.  C.  Somerset  Co.,  1917, 
No.  9,  refusing  specific  performance  of  a  contract,  in 
Estate  of  Cyrenius  W.  Kutz,  Deceased.  Before  Brown, 
C.  J.,  Mbstbbzat,  Stbwaet,  Frazer  and  Walung,  JJ. 
AflSrmed. 

Petition  for  specific  performance  of  a  contract  for  the 
sale  of  real  estate. 

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

While  there  has  been  considerable  testimony  taken, 
there  is  very  little  dispute  as  to  the  facts,  and  instead  of 
stating  the  facts  separately  in  order  as  requested  by 
counsel  for  respondents,  the  court  deems  it  suflftcient  to 
give  a  narrative  statement  covering  such  facts  as  are  im- 
portant in  the  case. 

Cyrenius  W.  Kutz,  a  resident  of  Somerset  County,  was 
the  owner  of  certain  lands  and  minerals  situate  in  Som- 
erset County  and  on  the  30th  day  of  January,  1911,  he 
executed  two  articles  of  agi'eement  one  relating  to  cer- 
tain lands  owned  by  Mr.  Kutz,  in  fee  simple,  and  the 
other  relating  to  coal  and  other  minerals.  Both  agree- 
ments are  substantially  the  same  in  form  and  are  made 
by  Mr.  Kutz  of  the  first  part,  and  "Henry  D.  Green,  at- 
torney for  a  proposed  corporation  of  Pennsylvania,  with 
$50,000  capital  stock  of  the  second  part."  For  the  sev- 
eral tracts  of  land  owned  in  the  fee  simple  by  Kutz,  the 
consideration  was  fixed  at  f  12,354,  and  for  the  coal  and 
mineral  only,  the  consideration  was  fixed  at  f  12,604,  to 
be  paid  "in  the  following  manner :  One  dollar  down  at 
the  signing  of  the  agreement,  10  per  cent,  in  capital 
stock  in  the  proposed  corporation  above  mentioned,  and 
the  remainder  to  be  secured  by  a  bond  and  mortgage  of 
said  corporation  upon  the  premises  described  below, 
within  three  years  from  the  date  of  said  mortgage,  in- 
terest to  be  paid  at  5  per  cent,  after  possession  is  deliv- 
ered to  mortgagor And  upon  payment  of  said  pur- 


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550  KUTZ'S  ESTATE. 

Opinion  of  Court  below.  [25d  Pa. 

chase-money  provided  above,  the  said  party  of  the  first 
part  will  at  the  proper  charge  of  the  said  party  of  the  sec- 
ond part,  make,  execute  and  deliver  to  the  said  party  of 

the  second  part  a  good  and  sufficient  deed,  etc And  it 

is  further  agreed  by  and  between  the  said  parties  that 
possession  of  the  said  premises  shall  be  delivered  to  the 
party  of  the  second  part,  his  heirs  or  assigns,  on  the  day 
possession  is  requested  in  writing  by  the  said  party  of 
the  second  part,  his  heirs  or  assigns,  until  which  time  the 
said  party  of  the  first  part  shall  be  entitled  to  have  and 

receive  the  rents,  issues  and  profits  thereof It  is 

further  agreed  that  the  said  party  of  the  first  part  will 
execute  and  deliver  the  deed  of  conveyance  as  above  men- 
tioned, to  the  directors  of  the  proposed  corporation  after 
a  charter  has  been  granted  and  that  upon  delivery  of 
such  deed,  said  corporation  will  execute  the  mortgage 
above  referred  to  as  part  of  the  consideration,  and  make 
out  certificates  of  stock  to  the  said  party  of  the  first  part 
for  the  amount  of  the  purchase-money,  which  is  to  be 
payable  in  stock ;  said  mortgage  after  execution  and  said 
stock  after  being  issued,  is  to  be  placed  in  the  hands  of 
the  directors  of  said  corporation  with  the  executed  deeds, 
they  to  hold  the  same  until  the  property  is  sold  and  there- 
by money  is  raised  to  pay  off  the  mortgages  and  the 
amounts  due  on  distribution  among  the  stockholders/' 

On  the  23d  of  October,  1911,  an  application  was  filed 
for  a  charter  for  the  Laurel  Hill  Valley  Coal  &  Coke 
Company;  the  purpose  of  the  corporation  being  stated 
to  be  the  mining,  selling  and  shipping  of  coal  and  other 
minerals  incidentally  developed,  and  the  making  of  coke 
and  its  products  from  such  sale,  and  as  far  as  may  be 
necessary  for  the  purposes  of  said  business,  acquiring, 
holding  and  disposing  of  coal,  coal  lands  and  other  real 
and  personal  property,  and  transacting  such  other  busi- 
ness as  is  incidental  to  said  purposes.  The  amount  of  the 
capital  stock  of  the  corporation  was  fixed  at  $50,000 
divided  into  1,000  shares  of  the  par  value  of  |50  each. 
Among  the  subscribers  to  the  capital  stock  is  the  Laurel 


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KUTZ'S  ESTATE.  Ssl 

1918.]  Opinion  of  Court  below. 

Hill  Lumber  Company,  90  shares;  C.  W.  Kutz,  52 
shares;  Cosmos  D.  Kutz,  2  shares;  Daniel  H.  Schweyer, 
12  shares,  and  Albert  Knabb,  5  shares.  The  last  of  the 
three  above-named  paid  their  subscriptions  to  stock  and 
are  the  only  ones  who  paid  any  money  on  the  stock  sub- 
scriptions. The  oflScers  of  the  corporation  sold  stock  of 
the  company  to  the  amount  of  |5,000  which  was  paid  into 
the  treasury.  This  money  was  the  only  asset  of  the  cor- 
poration. The  charter  was  duly  recorded  in  Berks  Coun- 
ty but  was  not  recorded  in  Somerset  County. 

On  the  11th  of  November,  1911,  at  a  meeting  of  the 
stockholders  of  the  Laurel  Hill  Valley  Coal  &  Coke 
Company,  the  following  resolution  was  unanimously 
adopted :  "Resolved,  That  in  the  mortgages  directed  to 
be  given  to  the  company  according  to  the  agreement  of 
incorporation,  they  be  made  payable  on  or  before  July  1, 
1914,  and  it  be  provided  in  said  mortgages  and  deeds  that 
the  privilege  be  given  to  any  landowner  to  withdraw  his 
land  after  said  date,  upon  cancellation  of  the  mortgage 
and  the  shares  of  stock  issued  to  him  on  account  of  the 
purqhase-money/' 

On  the  23d  of  January,  1912,  a  meeting  of  the  stock- 
holders of  the  Laurel  Hill  Valley  Coal  &  Coke  Com- 
pany, held  at  Confluence,  Pa.,  C.  W.  Kutz,  George  Dum- 
bauld  and  Jacob  Kregar  were  appointed  a  committee  to 
prospect  a  number  of  tracts  of  land  by  examining  the 
present  openings,  drilling  of  coal,  obtaining  surveys, 
engineers'  reports,  analyses  of  the  coal,  etc.,  on  lands 
which  the  corporation  intended  to  purchase;  the  lands 
included  those  of  the  decedent,  C.  W.  Kutz.  This  com- 
mittee expended  f3,644.56.  No  detailed  report  of  the 
doings  of  this  committee  was  made  until  May  5,  1915, 
when  the  committee  submitted  a  report  showing  what 
had  been  done,  the  names  of  the  surveyors  and  engineers 
employed,  the  amount  of  money  expended,  etc.  This  re- 
port in  two  sections,  is  dated  as  follows :  5-5-15  as  of  7- 
1-14/' 

On  June  17,  1915,  Henry  D.  Green  wrote  to  C.  W. 


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552  KUTZ'S  ESTATE. 

Opinion  of  Court  below.  [269  Pa. 

Kutz  stating  that  the  Laurel  llill  Lumber  Ck>mpanyy  a 
corporation  in  some  way  connected  with  the  Laurel  Hill 
Valley  Coal  &  Coke  Company,  had  executed  mortgages 
and  stock  certificates  for  the  latter  company,  which 
were  placed  in  escrow,  and  Mr.  Green  with  his  letter 
enclosed  deeds  for  Mr.  Kutz  and  his  wife  to  execute  in 
accordance  with  the  articles  of  agreement  of  January  30, 
1911;  and  Mr.  Kutz  is  advised  in  this  letter  that  his 
deeds  upon  receipt  will  be  placed  with  the  other  agree- 
ments and  papers  in  escrow;  and  the  letter  proceeds: 
"In  other  words,  when  a  purchaser  is  found  and  the 
money  paid,  it  will  be  paid  to  the  trust  company  for  pay- 
ment to  the  property  owners  according  to  the  terms  of 
the  agreement,  and  no  title  will  pass  to  purchasers  nor 
will  any  deed  be  delivered  except  upon  the  conditions  set 
forth  in  the  agreement.  In  this  way  the  rights  of  all 
parties  will  be  perfectly  safeguarded.  I  am  preparing 
deeds  to  be  signed  by  other  landowners  according  to  the 
terms  of  their  agreements  and  I  will  ask  you  to  assist 
me  in  having  as  much  of  this  land  put  into  shape  for 
sale  as  possible. 

On  the  30th  of  June,  1915,  Mr.  Green  again  wrote  to 
Mr.  Kutz  stating  that  he  was  waiting  for  a  reply  to  his 
letter  of  June  17th. 

On  the  1st  of  July,  1915,  Mr.  Kutz  acknowledges  re- 
ceipt of  these  letters  and  says :  "Will  say  in  reply  that 
so  far  as  your  letter  of  recent  date  is  concerned  and  what 
you  ask  me  to  sign  I  will  not  do  as  I  consider  all  options 
void  since  July  1,  191*4.  Had  you  and  others  of  your 
committee  tried  as  hard  to  effect  a  sale  as  Dumbauld, 
Kregar  and  myself  did  to  get  surveys  made  and  pros- 
pecting done,  we  might  not  now  be  a  company  with- 
out property  to  dispose  of I  will  not  sell  any  of  my 

lands  for  a  worthless  mortgage." 

No  further  steps  were  taken  during  the  lifetime  of  Mr. 
Kutz,  who  died  May  16,  1916,  and  his  daughter,  Mrs. 
Barron,  was  appointed  his  administratrix.  The  agree- 
mcuts  between  Mr.  Kntz  and  Mr.  Green  purport  to  have 


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KUTZ^S  ESTATE.  553 

1918.]  Opinion  of  Court  below. 

been  signed  by  C.  W.  Kutz  and  Susannah  C.  Kutz  liis 
wife,  and  in  that  form  were  handed  to  Mr.  Green  by  Mr. 
Kutz.  D.  H.  Schweyer  signed  as  an  attesting  witness  to 
Mrs.  Kutz.  The  agreements  were  not  acknowledged  be- 
fore a  magistrate^  but  after  the  death  of  Mr.  Kutz,  Mr. 
Green  acknowledged  his  signature  to  the  articles  of 
agreement  and  had  same  placed  upon  record  in  Somerset 
County. 

On  the  15th  of  January,  1917,  the  administrator  of  C. 
W.  Kutz  presented  a  petition  for  an  order  for  the  sale 
of  real  estate  for  the  payment  of  debts.  The  petition  sets 
forth  that  the  debts  of  the  decedent  amount  to  over  f55,- 
000  and  the  personal  property  less  than  f  1,300,  and  asks 
for  the  sale  of  the  real  estate  including  the  lands  and 
minerals  described  in  the  agreement  between  Mr.  Kutz 
and  Mr.  Green.  An  order  of  sale  was  granted  on  the 
16th  of  February,  1917.  The  real  estate  described  in  the 
order  was  sold  to  J.  C.  Barron,  husband  of  the  adminis- 
tratrix for  |8,000.  Mr.  Green  for  himself  and  as  at- 
torney for  the  Laurel  Hill  Valley  Coal  &  Coke  Com- 
pany, filed  exceptions  to  the  sale,  and  also  presented  the 
petition  for  specific  performance  of  contract.  There 
were  gross  irregularities  in  the  conduct  of  the  sale,  and 
if  a  proper  party  in  interest  had  filed  exceptions  they 
would  doubtless  have  been  sustained,  but  as  we  have 
concluded  that  neither  Mr.  Green  nor  the  Laurel  Hill 
Valley  Coal  &  Coke  Company  has  any  interest  in  the 
estate,  we  need  give  the  exceptions  no  further  consider- 
ation. 

The  rule  for  decree  of  specific  performance  of  contract 
was  served  upon  the  administratrix,  the  widow,  and 
each  of  the  eight  children  of  the  decedent,  being  all  the 
legal  heirs  and  representatives  concerned  in  the  estate. 
They  have  all  filed  answers  practically  admitting  the 
facts  as  set  forth  in  the  petition,  but  denying  the  petition- 
ers* right  to  specific  performance,  alleging  specifically 
the  resolution  of  the  Laurel  Hill  Valley  Coal  &  Coke 
Company  fixing  the  maturity  of  the  mortgage  as  in  1914, 


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554  KUTZ'S  ESTATE. 

Opinion  of  Court  below.  [259  Pa. 
and  averring  laches  on  the  part  of  the  petitioner;  and 
also  denying  authority  on  part  of  Mr.  Green  as  a  repre- 
sentative of  the  Laurel  Hill  Valley  Coal  &  Coke  Com- 
pany to  institute  and  conduct  the  litigation.  The  widow, 
Susannah  C.  Eutz,  filed  an  answer  of  similar  import, 
but  also  in  a  manner  denying  her  signature  to  the  articles 
of  agreement.  This  denial  in  her  answer  is  in  the  fol- 
lowing form :  " I  think  it  is  his  genuine  signature, 

but  there  appears  upon  said  agreements  with  the  name 
of  Cyrenius  W.  Kutz,  the  name  of  Susannah  C.  Kutz.  I 
was  the  wife  of  Cyrenius  W.  Kutz  at  the  date  said  agree- 
ments purport  to  have  been  signed  by  him.  My  name 
does  not  appear  on  said  agreements.  The  name  of  the 
widow  of  Cyrenius  W.  Kutz  is  Susan  C.  Kutz,  and  I,  the 
widow  of  said  decedent,  have  at  no  time  written  my  name 
Susannah  C.  Kutz,  and  I  have  no  recollection  of  signing 
said  agreements  and  I  do  not  recognize  the  signature 
purporting  to  have  been  signed  by  Susannah  C.  Kutz  as 
having  been  written  by  me,  though  there  is  some  resem- 
blance in  those  signatures  with  my  own  genuine  signa- 
ture.*^ The  name  of  Daniel  H.  Schweyer  appears  on  the 
agreements  as  an  attesting  witness  to  the  signature  of 
Mrs.  Kutz ;  and  depositions  have  been  taken  to  prove  the 
death  of  Daniel  H.  Schweyer,  and  that  the  signature  on 
the  agreement  is  the  genuine  signature  of  Mr.  Schweyer; 
and  the  agreements  in  that  form,  with  the  name  of  Mrs. 
Kutz  appearing  thereon  after  the  name  of  C.  W.  Kutz, 
were  handed  to  Mr.  Green  by  Mr.  Kutz.  Mr.  Kutz  was  a 
very  reputable  citizen,  and  therefore  for  the  purposes  of 
this  case,  we  find  as  a  fact  that  the  signature  on  the 
agreements  is  the  genuine  signature  of  Mrs.  Kutz. 

Beginning  with  September  8, 1913,  Mr.  Kutz  contract- 
ed indebtedness  amounting  to  f22,472.82,  and  this  in- 
debtedness was  subsequently  increased  until  the  amount 
with  interest  totaled  f36,372.64  as  of  January  1,  1917. 
For  this  indebtedness  Mr.  Kutz  executed  a  mortgage  on 
his  real  estate  including  that  in  controversy  here,  to  his 
son-in-law,  J.  C.  Barron  for  himself  and  as  trustee  for 


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KUTZ'S  ESTATE.  555 

1918.]  Opinion  of  Court  below. 

the  other  creditors.  The  assets  of  the  Laurel  Hill  Valley 
Coal  &  Coke  Company  were  all  expended  in  prospect- 
ing on  lands  of  Mr.  Kutz  and  others,  spoken  of  as  the 
pool,  for  the  purposes  of  ascertaining  the  extent  and 
quality  of  the  coal  and  minerals  thereon.  The  certifi- 
cates of  stock  of  the  Laurel  Hill  Valley  Coal  &  Coke 
Company  for  Mr.  Kutz,  as  referred  to  in  the  optional 
agreements,  were  never  tendered  to  Mr.  Kutz,  in  fact 
were  never  executed  by  the  corporation.  No  formal 
action  has  been  taken  by  the  corporation  authorizing 
Mr.  Green  to  prosecute  these  proceedings.  In  fact  a 
number  of  the  stockholders  were  called  as  witnesses  and 
by  their  testimony  indicated  their  hostility  to  this  pro- 
ceeding. There  is  no  prospect  for  an  immediate  sale  of 
the  coal  by  the  Laurel  Hill  Valley  Coal  &  Coke  Com- 
pany were  it  to  become  the  owner  of  the  premises.  Un- 
der these  circumstances  we  are  decidedly  of  the  opinion 
that  the  relief  sought  for  should  not  be  granted.  Were 
the  parties  reversed  and  the  estate  of  Mr.  Kutz  seeking 
to  enforce  the  contract  there  would  be  little  prospect 
of  success. 

The  agreement  with  the  attending  circumstances  there- 
fore lacks  mutuality,  which  is  fatal  to  the  petitioners' 
case :  Meason  v.  Kane,  63  Pa.  335. 

The  vendee  has  slept  too  long  on  its  rights,  and  under 
all  the  facts  of  the  case  has  been  guilty  of  laches. 

"In  a  suit  for  specific  performance,  the  plaintiff  must 
show  he  has  performed,  or  was  ready  to  perform  his  part 
of  the  contract,  and  that  he  has  not  been  guilty  of  laches 
or  unreasonable  delay,  and  where  the  proof  leaves  the 
case  doubtful,  the  plaintiff  is  not  entitled  to  a  decree" : 
Bouvier's  Law  Dictionary,  page  3106 ;  DuBois  v.  Baum, 
46  Pa.  537;  Nickerson  v.  Nickerson,  127  U.  S.  668  (L. 
Ed.  314) ;  Wesley  v.  Eells,  177  U.  S.  370  (L.  Ed.  810). 

Tender  of  performance  on  part  of  the  petitioner  is  a 
prerequisite  to  a  decree  of  specific  performance  of  con- 
tract :  DuBois  v.  Baum,  supra. 

"When  a  man  has  an  option  upon  property,  and  has 


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556  KUTZ»S  EStATE. 

Opinion  of  Court  below.  [259  Pa. 

laid  by  for  several  years  without  exercising  it,  and  it  has 
greatly  enhanced  in  value,  if  he  claim  a  ccmveyance  of  it, 
he  should  at  least  show  a  tender  of  the  pnrchase-money, 
or  that  his  appointee  has  the  means  to  pay  for  it" :  Kel- 
low  V.  Jory,  141  Pa.  144. 

"It  is  well  settled  that  to  entitle  a  plaintiff  in  ejectment 
— founded  on  an  equity  only — to  recover,  he  must  not 
only  tender  the  money  before  suit  brought,  but  he  must 
show  his  readiness  to  perform  by  having  it  in  conrt  ready 
to  be  paid  in  the  event  of  a  verdict  in  his  favor" :  Dwyer 
V.  Wright,  162  Pa.  405. 

Furthermore,  the  granting  of  relief  by  a  chancellor  is 
a  matter  of  grace  and  not  of  right.  True,  the  court  must 
exercise  a  legal  discretion,  not  rule  the  matter  arbitra- 
rily, but  be  governed  entirely  by  equitable  principles: 
Burk's  App.,  75  Pa.  141 ;  Rigg  et  al.  v.  The  Reading  &  S. 
W.  Street  Ry.  Co.,  191  Pa.  298;  Federal  Oil  Co.  v.  West- 
em  Oil  Co.,  121  Fed.  Rep.  674 ;  Nickerson  t.  Nickerson, 
supra ;  Wesley  v.  Eells,  supra. 

In  this  case  the  article  of  agreement  provided  for  the 
securing  of  the  purchase-money  by  a  mortgage  on  the 
property  to  the  vendor,  and  as  is  shown  by  the  agreement 
and  the  subsequent  correspondence,  it  was  the  purpose 
and  intention  of  the  parties  at  the  time  to  sell  the  prop- 
erty, not  to  operate  it,  and  it  was  expected  that  the  mort- 
gage should  be  paid  out  of  the  proceeds  of  such  sales. 
The  agreement  itself  is  silent  as  to  the  time  <^  the  de- 
livery of  deed  and  security  by  mortgage,  therefore  the 
law  would  fix  a  reasonable  time,  in  the  absence  of  any 
proof;  but  the  parties  themselves  seem  to  have  con- 
sidered that  three  years  was  a  reasonable  time ;  in  fact, 
the  agreement  provides  that  the  mortgage  is  to  be  made 
payable  in  three  years  from  its  date,  and  it  is  fair  to  pre- 
sume that  the  parties  contemplated  an  early  issuing  of 
the  stock  and  exchange  of  papers.  The  charter  was 
promptly  obtained ;  then  the  action  of  the  corporation 
fixing  the  first  of  July,  1914,  as  the  time  for  the  limita- 
tion of  the  mortgages,  is  in  harmony  with  what  appears 
to  have  been  the  understanding  at  the  time  the  papers 


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KUTZ'S  ESTATE.  557 

1918r]  Opinion  of  Court  below — Opinion  of  the  Court. 
were  executed.  Within  that  time  no  demand  was  made 
of  Mr.  Eutz^  and  when  a  demand  was  made  upon  him  a 
year  later  he  promptly  took  advantage  of  the  resolution 
passed  by  the  stockholders  of  the  petitioning  corpora- 
tion. From  the  light  that  we  have  now,  were  We  to  grant 
a  decree  of  specific  performance,  it  would  simply  mean 
that  a  deed  should  be  executed  to  the  Laurel  Hill  Valley 
Coal  &  Coke  Company  and  a  mortgage  given  by  that 
company  for  the  bulk  of  the  purchase-money  with  no  im- 
mediate prospect  of  a  sale  of  the  land  in  view,  and  with 
a  strong  probability  that  resort  would  have  to  be  had  to 
legal  proceedings  to  enforce  the  payment  of  the  mort- 
gage, and  probably  result  in  a  sheriff's  sale  of  the  prop- 
erty, thus  entailing  great  expense,  long  delay  and  un- 
necessary trouble. 

The  court  refused  the  relief  prayed  for.  The  Laurel 
Hill  Valley  Coal  &  Coke  Company  and  Henry  D.  Green 
appealed. 

Errors  assigned  were  as  follows : 

1.  The  court  erred  in  not  decreeing  the  specific  per- 
formance prayed  for  by  the  petitioner. 

2.  The  court  erred  in  admitting  a  great  deal  of  testi- 
mony entirely  immaterial  and  irrelevant  to  the  questions 
involved. 

Henry  D.  Green,  with  him  C.  F.  Uhl  and  H.  F.  Yost, 
for  appellants. 

J.  A.  Berkey,  for  appellee. 

Per  Curiam,  January  7, 1918 : 

The  majority  of  the  court  are  of  opinion  that  this  de- 
cree should  be  affirmed  on  the  opinion  of  the  learned 
court  below  dismissing  the  exceptions  to  the  sale  and  to 
the  petition  for  specific  performance  of  contract.  Even 
if  there  were  any  merit  in  the  appeal  it  could  not  be  sus- 
tained for  the  disregard  of  the  rule  relating  to  assign- 
ments of  error.    Neither  of  the  two  is  in  proper  form. 

Decree  affirmed  at  appellants'  costs. 


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558  PITTSBURGH  v.  PITTSBURGH  EYS.  CO.,  Appel. 

SyUabus— Statement  of  Facts.  [269  Pa. 


City  of  Pittsburgh  v.  Pittsburgh  Railways  Com. 
pany,  Appellant 

Jacoby  v.  Pittsburgh  Railways  Company,  Appel- 
lant 

Strefii  railways — Rates-Change  of  rates — Posting  and  publica- 
tion— Public  Service  Commission — Act  of  July  26, 191S,  P.  L.  1874. 

1.  The  i>08ting  and  publishing  of  a  schedule  changing  the  rates 
of  a  railway  company  are  a  condition  precedent  to  the  taking  effect 
of  the  changed  rate,  and  where  the  schedule  of  change  is  not  prop*- 
crly  posted  the  Public  Service  Conunission  may  restrain  a  railway 
from  putting  the  rate  into  effect. 

2.  An  order  of  the  Public  Service  Commission,  requiring  a  street 
railway  company  to  desist  from  collecting  an  increased  rate  of  fare, 
which  the  company  undertook  to  establish  by  a  schedule  filed  with 
the  Public  Service  Commission,  was  properly  affirmed  by  the  Su- 
perior Court,  where  it  appeared  that  copies  of  the  new  schedule 
were  sent  to  the  agents  of  the  railway  company  at  its  offices  and 
stations  where  the  business  of  the  company  was  transacted,  with 
directions  to  keep  a  copy  of  the  same  on  file  with  the  copy  of  the 
schedule  of  fares  for  street  car  service  on  file  at  such  stations,  but 
where  no  copy  of  the  schedule  was  posted  in  the  rooms  to  which 
the  public  had  access,  as  required  by  Section  1  of  Article  II  of  the 
Public  Service  Company  Law. 

Argued  Oct.  9,  1917.  Appeals,  Nos.  77  and  78,  Oct. 
T.,  1917,  by  defendant,  from  decree  of  Superior  Court, 
April  T.,  1917,  Nos.  97  and  98,  affirming  order  of  Public 
Service  Commission,  Complaint  Docket,  1916,  Nos.  1037 
and  1025,  in  cases  of  City  of  Pittsburgh  v.  Pittsburgh 
Railways  Company  and  W.  M.  Jacoby  v.  Pittsburgh 
Railways  Company.  Before  Mbstrbzat,  Stbwaet, 
MoscHZiSKBR,  Frazbr  and  Walling,  JJ.    Affirmed. 

Appeal  from  Superior  Court. 

Hbndbbson,  J.,  filed  the  following  opinion,  vide  66  Pa. 
Superior  Ct  243 : 


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PITTSBURGH  v.  PITTSBURGH  RYS.  CO.,  Appel.  559 
1918.]  Statement  of  Facts. 

This  is  an  appeal  from  the  decision  of  the  Public  Serv- 
ice Commission  requiring  the  Pittsburgh  Railways  Com- 
pany to  desist  from  collecting  an  increased  rate  of  fares 
which  the  company  undertook  to  establish  by  a  supple- 
mentary schedule  of  fares  filed  with  the  Public  Sel'vice 
Commission  on  May  22,  1916.  The  paper  filed  with  the 
Public  Service  Commission  was  contained  in  a  cover 
bearing  the  following  superscription :  "Supp.  No.  2,  P. 
S.  C.  Pa.  No.  1,"  but  having  no  other  indication  of  the 
contents  of  the  enclosure.  Copies  of  the  schedule  were 
sent  to  agents  of  the  appellant  at  its  offices  and  the  sta- 
tions where  the  business  of  the  company  was  transacted 
and  with  each  copy  so  sent  was  a  letter  containing  the 
following  instruction :  "This  is  to  be  kept  with  the  copy 
of  the  schedule  and  rates  of  fares  for  street  car  service  on 
file  at  your  station."  The  copies  of  the  amended  schedule 
thus  distributed  were  placed  by  the  employees  to  whom 
they  were  sent,  among  the  papers  of  the  company  there 
kept  or  were  hung  on  the  walls  or  placed  on  desks  in 
rooms  occupied  by  employees  of  the  company  but  were 
not  in  rooms  to  which  the  public  resorted.  No  other  in- 
formation was  given  of  the  proposed  increase  to  the  fare 
than  that  arising  from  the  filing  of  the  amendment  to 
the  schedule  with  the  Public  Service  Commission  and 
with  the  agents  of  the  company.  The  questions  in  con- 
troversy are  whether  the  amendment  to  the  schedule  was 
"posted  and  published"  in  accordance  with  the  provi- 
sions of  the  Public  Service  Commission  Act  of  July  26, 
1913,  and  whether  the  amendment  plainly  stated  the  ex- 
act changes  proposed  to  be  made  in  the  tariff  then  in 
force  and  whether  an  increase  or  decrease.  It  is  provid- 
ed in  paragraph  seven  of  Section  1,  of  Article  II  of  the 
statute  that  it  shall  be  the  duty  of  every  public  service 
company  "to  make  no  change  in  any  tariff  or  schedule 
which  shall  have  been  filed  or  published  or  posted  by  any 
public  service  company  in  compliance  with  the  preceding 
sections,  except  after  thirty  days'  notice  to  the  commis- 
sion and  to  the  public,  posted  and  published  in  the  man- 


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560  PITTSBURGH  r.  PITTSBURGH  RYS.  CO.,  Appel. 

Statement  of  Facts.  [259  Pa. 

ner,  form  and  places  required  with  respect  to  the  original 
tariffs  or  schedules  which  shall  plainly  state  the  exact 
changes  proposed  to  be  made  in  the  tariffs  or  schedules 
then  in  force,  and  whether  an  increase  or  decrease,  and 
the  time  when  the  proposed  changes  will  go  into  effect ; 
and  all  such  changes  shall  be  shown  by  filing,  posting  and 
publishing  new  tariffs  or  schedules  or  shall  be  plainly  in- 
dicated upon  the  tariffs  or  schedules  in  force  at  the  time 
and  kept  open  to  the  public  inspection."  The  Public  Serv- 
ice Commission  determined  that  the  supplementary  sched- 
ule was  not  a  legally  filed,  posted  and  published  tariff  and 
that  there  was  nothing  therein  which  plainly  stated  the 
exact  change  proposed  to  be  made  and  that  it  contained 
nothing  which  indicated  whether  or  not  there  was  to  be 
an  increase  or  decrease  in  fares.  The  contention  of  the 
appellant  is  that  the  tariff  was  properly  posted  and  pub- 
lished and  that  it  plainly  shows  a  proposed  increase  in 
fares.  It  is  not  alleged  that  the  company  did  any  other 
thing  with  reference  to  publishing  the  amendment  of  the 
schedule  than  file  a  copy  in  the  oflice  of  the  Public  Serv- 
ice Commission  and  a  photographic  copy  thereof  in  each 
of  its  car  barns  arid  at  stations  where  passengers  are  re- 
ceived and  at  which  station  agents  or  ticket  agents  are 
employed.  It  is  asserted  by  the  appellant  that  the  plac- 
ing of  a  copy  of  the  amended  tariff  in  the  custody  of  its 
employee  or  employees  in  its  stations  and  car  barns  to 
which  access  might  be  had  by  the  public  on  request  is  a 
compliance  with  the  requirements  of  the  law  as  to  post- 
ing and  publishing  and  that,  having  sent  a  copy  of  the 
amendment  to  the  schedule  to  each  station,  ticket  office 
and  car  barn  at  which  street  railway  tickets  are  custom- 
arily sold  or  at  which  they  might  be  purchased  if  appli- 
cation were  made,  it  complied  with  all  the  demands  of  the 
law  as  to  notice  of  a  change  in  its  tariff  increasing  the 
rate  of  fare.  It  is  further  contended  that  the  require- 
ment for  posting  at  stations  is  directory,  not  mandatory; 
by  reason  whereof  a  failure  to  post  and  publish  tariffs 
in  the  company's  station  would  not  have  invalidated  the 


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PITTSBURGH  v.  PITTSBURGH  RYS.  CO.,  Appel.  561 
1918.]  Statement  of  Facts, 

rate.  If  this  position  is  correct  and  the  notice  was  suf- 
ficient in  form  the  change  in  the  tariff  has  taken  effect 
and  the  appellant  has  avoided  the  burden  of  proof  im- 
posed by  the  4th  section  of  Article  V  of  the  statute  which 
provides  that  whenever  the  commission  receives  a  notice 
of  any  change  proposed  in  any  tariff  or  schedule  filed 
or  posted  under  the  provisions  of  the  Act  of  July  26, 
1913,  P.  L.  1374,  it  shall  have  power  to  hold  a  public 
hearing  and  make  investigations  as  to  the  propriety  of 
the  proposed  change  and  make  such  order  in  reference  to 
the  new  rate  as  would  be  proper  in  a  proceeding  initiated 
after  the  same  had  become  effective,  at  which  hearing 
involving  a  proposed  increase  in  rate,  the  burden  of 
proof  to  show  that  such  increase  is  just  and  reasonable 
shall  be  upon  the  public  service  company.  It  will 
be  observed  that  a  prohibition  is  imposed  on  public  serv- 
ice companies  to  change  an  established  tariff,  except 
after  thirty  days'  notice  to  the  commission  and  to  the 
public.  The  object  of  such  a  regulation  is  obvious.  The 
rate  having  once  been  established  it  is  regarded  as  prima 
facie  a  proper  rate.-  The  public  has  an  interest  in  the 
subject;  the  corporation  is  operated  for  the  accommo- 
dation of  the  public  and  is  limited  in  its  charge  to 
amounts  which  are  reasonable.  A  change  of  rate  impos- 
ing an  additional  burden  on  the  public  calls  for  expla- 
nation and  justification  before  the  commissicm.  The 
legislative  intention  was,  therefore,  to  give  those  inter- 
ested a  fair  opportunity  to  appear  at  an  appointed  time 
before  the  commission  to  present  objections  to  the  pro- 
posed increase  in  order  that  the  whole  subject  might  be 
eoi^idered  by  the  commission  before  a  change  of  rate 
took  effect.  Provision  is  not  only  made  for  notice,  but 
for  the  manner  and  substance  of  the  notice.  It  is  to  be 
posted  and  published  in  the  manner,  form  and  places 
required  with  respect  to  the  original  tariffs  or  schedules 
and  shall  plainly  state  the  exact  changes  proposed  to  be 
made  and  whether  an  increase  or  decrease.    Referring  to 

Vol.  cctjx — 36 


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562  PITTSBURGH  v.  PITTSBURGH  RYS.  CO.,  AppeL 

Statement  of  Facts.  [259  Fa. 

the  provisions  of  the  statute  as  to  the  requirements  with 
respect  to  original  tariffs^  it  will  be  seen  that  they  also 
are  to  be  posted  and  published  in  every  office  or  station  of 
the  company  open  to  the  public  where  payments  are  made 
by  patrons  in  such  manner,  form  and  place  in  such  office 
or  station  as  to  be  readily  accessible  and  so  that  said  tar- 
iffs and  schedule  may  be  conveniently  inspected  by  the 
public.  The  duty  to  post  and  publish  exists  in  each  case. 
The  notice  of  a  change  is  a  thing  distinct  from  the  tariff 
itself,  for  the  same  clause  after  providing  for  the  kind  of 
notice,  provides  as  follows :  "And  all  such  changes  shall 
be  shown  by  filing,  posting  and  publishing  new  tariffs  or 
schedules  or  shall  be  plainly  indicated  upon  the  tariffs  or 
schedules  in  force  at  the  time  and  kept  open  to  public 
inspection."  The  purpose  of  the  notice  with  respect  to  a 
change  in  the  rate  is  different  from  that  applicable  to  an 
original  tariff  and  the  language  is  to  be  interpreted  so  as 
to  accomplish  the  object  intended ;  that  is,  to  inform  the 
public  in  advance  of  the  intention  to  collect  an  increased 
fare.  It  is  unnecessary  to  determine  whether  the  notice 
required  is  to  be  given  separate  and  apart  from  the 
amended  schedule  as  contended  for  by  the  appellees  or 
whether  it  may  be  connected  therewith.  In  either  case 
the  information  would  be  given  which  the  law  contem- 
plated.  The  appellant  contends  that  notice  is  imparted 
and  published  by  filing  the  schedule  with  the  Public 
Service  Commission  and  in  the  places  designated  by  the 
law  for  that  purpose.  It  is  not  a  controverted  propo- 
sition, however,  that  notice  must  be  given  of  the  intended 
change.  The  real  question  then  is,  what  is  meant  by  the 
requisition  of  the  law  that  notice  of  the  intended  change 
be  posted  and  published?  If  it  be  conceded  that  filing 
with  the  commission  and  in  the  stations,  etc.,  of  the  com- 
pany be  a  sufficient  promulgation  and  publishing,  ac- 
count must  still  be  taken  of  the  necessity  of  posting  the 
notice.  The  popular  meaning  of  the  word  **post'*  corre- 
sponds with  that  attached  to  it  by  lexicographers.    It 


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PITTSBURGH  v.  PITTSBURGH  RYS.  CO.,  Appel.  563 
1918.]  Statement  of  Facts, 

means  the  bringing  to  the  notice  or  attention  of  the  pub- 
lic by  affixing  to  a  post  or  wall,  or  putting  up  in  some 
public  place;  to  placard.  This  is  a  usual  and  efficient 
method  of  bringing  to  the  notice  of  the  public  matters  in 
which  they  are  interested  and  there  is  nothing  in  the 
statute  which  suggests  that  the  term  "posted"  was  used 
in  any  other  sense  than  that.  It  was  the  means  to  be 
adopted  to  bring  to  the  attention  of  the  public  a  matter 
affecting  their  interests.  The  notice  thus  to  be  given  is 
made  a  condition  precedent  to  the  establishment  of  an 
amended  tariff.  Original  schedules  are  filed  without 
prior  notice.  The  obligation  rests  on  the  company  to 
file  such  schedules  but  no  provision  is  made  for  precedent 
notice  of  their  adoption.  But^  in  the  case  of  changes  in 
the  tariff  or  schedule,  thirty  days^  notice  to  the  commis- 
sion and  the  public  must  be  givcja.  It  is  admitted  that 
there  was  no  posting  of  notice  by  the  appellant  unless 
the  filing  of  the  amended  schedule  is  to  be  regarded  as 
posting.  But  when  we  consider  that  the  words  "posted" 
and  "published"  are  used  in  connection,  with  reference 
to  the  subject,  we  are  unable  to  view  the  language  in  a 
light  which  makes  the  filing  of  a  paper  in  the  general 
office  of  the  company  and  in  its  stations  and  car  bams 
the  equivalent  of  posting.  The  evidence  shows  that  such 
filing  did  not  have  the  effect  of  bringing  notice  home  to 
the  public  in  the  City  of  Pittsburgh  and  as  the  purpose 
was  to  provide  such  notice,  it  is  more  reasonable  to  con- 
clude that  the  legislature  meant  what  is  ordinarily  signi- 
fied by  the  term  used  and  which  was  more  likely  to  pro- 
duce the  desired  result  than  would  be  accomplished  by 
placing  the  document,  which  was  intended  to  inform  the 
public,  in  a  desk  or  in  a  private  office  or  in  some  other 
place  in  which  it  could  only  be  seen  by  the  persons  inter- 
ested when  specially  asked  for.  Attention  is  called  by 
the  learned  counsel  for  the  appellant  to  the  similarity  be- 
tween the  Interstate  Commerce  legislation  and  the  Pub- 
lic Service  Statute  in  regard  to  adopting  and  changing 


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564  PITTSBURGH  r.  PITTSBURGH  RYS.  CO.,  Appd. 

Statement  of  Facts.  [259  Pa. 

TBte&y  fares  and  charges.  It  will  be  observed,  however, 
that  the  Interstate  Commerce  legislation,  with  respect 
to  changes,  requires  thirty  days'  notice  to  the  public 
^'published  as  aforesaid."  The  word  "posted"  is  omitted 
from  the  amendment  of  1910  relating  to  the  subject. 

It  is  true,  as  pointed  out  in  the  appellant's  argument, 
that  the  requirement  of  the  Interstate  Commerce  law 
that  schedules  should  be  posted  in  two  public  and  con- 
spicuous places  in  every  depot,  etc.,  was  not  made  a 
condition  precedent  to  the  establishment  and  putting  in 
force  of  the  tariff  of  rates,  but  was  a  provision  based 
upon  the  existence  of  an  established  rate,  as  was  decided 
in  Tex,  &  Pac.  R.  R.  Co.  v.  Cisco  Oil  Mill,  204  U.  8.  449. 
And  the  same  ruling  was  made  in  Kansas  City  Southern 
Ry.  Co.  V.  C.  H.  Albers  Com.  Co.,  223  U.  S.  573,  and  in 
United  States  v.  Miller,  223  U.  8.  599.  But  these  de- 
cisions  dealt  with  the  establishment  of  the  originid  tar- 
iffs. The  companies  were  compelled  to  adopt  schedules. 
They  were  also  required  to  post  the  same  in  two  public 
and  conspicuous  places  in  every  depot,  but  this  posting 
was  not  made  a  condition  on  which  the  rates  became 
effective.  It  was  a  provision  based  on  the  existence  of 
an  established  rate  and  had  for  its  object  the  affording 
of  facilities  to  the  public  for  ascertaining  the  rates 
actually  in  force.  In  the  case  last  cited  attention  is 
called  to  the  distinction  between  '^publication"  and 
^'posting,"  the  former  consisting  in  promulgating  and 
distributing  the  tariff  in  printed  form  preparatory  to 
putting  it  into  effect,  while  the  posting  is  a  continuing 
act  enjoined  upon  the  carrier,  while  the  tariff  remains 
operative,  as  a  means  of  informing  the  public  what  are 
the  rates  in  force.  This  applies,  as  will  be  observed,  to 
existing  rates.  The  distinction  is  that  the  company  had 
authority  to  fix  its  original  rates  and  file  its  schedules, 
but  in  the  case  of  a  change  of  rate  something  must  be 
done  by  the  company  before  it  could  put  the  change  in 
effect.    That  something,  is  the  giving  of  the  notice  by 


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PITTSBURGH  r.  PITTSBURGH  RYS.  CO.,  Appel.  565 
3018.]  Sttttcmeut  of  Facts. 

posting  and  publication  of  the  proposed  change^  which 
notice  shall  plainly  state  the  exact  change  proposed  to  be 
made  in  the  tariffs  or  schedules  then  in  force  and  whether 
an  increase  or  decrease  and  the  time  when  the  proposed 
change  will  go  into  effect  This  is  clearly  dealing  not 
with  a  fact  accomplished,  but  with  a  proposal  of  the 
company  to  become  an  established  rate  after  thirty  days. 
It  is  urged,  however,  that  the  plan  adopted  was  in  ac- 
cordance with  Tariff  Circular  No.  4  of  the  Public  Service 
Commission.  It  is  unnecessary  to  consider  whether  the 
provisions  of  that  document  are  in  harmony  with  the 
statute  with  respect  to  the  manner  of  posting  and  pub- 
lishing tariffs.  It  is  sufficient  to  say  that  that  circular 
relates  to  established  rates  and  was  apparently  intended 
to  provide  a  means  by  which  the  tariffs  and  schedules 
could  be  conveniently  inspected  by  the  public.  It  does 
not  attempt  to  dispense  with  the  posting  and  publishing 
of  notice  of  the  intention  to  change  a  rate.  It  is  not  to 
be  expected,  nor  is  it  required,  that  the  public  be  alert  to 
inquire  from  day  to  day  at  the  various  places  of  business 
of  the  company  whether  a  change  of  rate  is  in  contem- 
plation. Information  as  to  existing  rates  must  be  sought 
after  at  the  prescribed  places,  but  notice  of  a  changed 
rate  must  be  brought  to  the  attention  of  the  public  by 
posting  and  publishing.  A  notice  in  a  station,  car  barn 
or  other  place  to  which  the  patrons  resort,  informing 
them  that  the  information  as  to  rates  will  be  furnished 
them  on  request  is  not,  we  think,  a  lawful  substitute  for 
the  notice  of  an  intended  change  of  tariff  which  the  law 
requires  to  be  posted  and  published.  It  is  a  fair  infer- 
ence from  the  evidence  that  the  appellant's  officers  did 
not  consider  that  the  standing  notice  to  apply  to  the  com- 
pany's employees  for  information  as  to  tariffs  gave  gen- 
eral information  that  there  was  to  be  a  change  of  rates 
of  fare,  for  when  the  new  rate  was  about  to  be  put  into 
effect  notice  was  given  by  advertisements  in  the  city 
papi^rs  and  by  conspicuous  cards  posted  in  the  street 


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566  PITTSBURGH  v,  PITTSBURGH  RTS.  CO.,  Appcl. 

Statement  of  Facts — Opiuion  of  the  Court.  [259  Pa, 
cars^  calling  attention  to  the  increased  rate  to  be  charged 
within  a  day  or  two. 

The  commission  reached  the  conclusion  that  the 
amended  tariff,  as  filed,  did  not  plainly  state  the  exact 
change  proposed  to  be  made  and  whether  such  change 
was  an  increase  or  decrease.  We  do  not  deem  it  neces- 
sary to  enter  into  a  discussion  of  the  evidence  on  that 
subject  as  the  first  objection  to  the  regularity  of  the  pro- 
cedure to  change  the  rate  is  suflScient  to  support  the  ac- 
tion of  the  commission.  We  hold  that  the  notice  of  a  pro- 
posed change  of  the  tariff  and  schedule  was  not  posted 
and  published  as  required  by  the  statute ;  that  such  post- 
ing and  publishing  was  a  condition  precedent  to  the  tak- 
ing effect  of  the  changed  rate  and  that  the  action  of  the 
commission  in  restraining  the  appellant  from  putting 
the  new  rate  into  operation  was  a  lawful  exercise  of  au- 
thority. 

The  Superior  Court  affirmed  the  order  of  the  Public 
Service  Commission.  The  Pittsburgh  Railways  Com- 
pany appealed. 

Error  assigned  was  the  decree  of  the  court. 

A.  W.  Robertson,  David  A.  Reed,  George  E.  Shato  and 
Reed,  Smith,  Shaw  d  Beat,  for  appellant. 

C.  A.  O'Brien,  City  Solicitor,  C,  K.  Robinson  and  (7. 
Elmer  Bown,  for  appellees. 

Berne  H.  Evans,  for  the  Public  Service  Commission. 

Pee  Curiam,  January  7,  1918 : 

These  judgments  are  affirmed  on  the  opinion  of  the 
learned  Superior  Court  dismissing  the  appeals  from  the 
decisions  of  the  Public  Service  Commission. 


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BEAVER  TR.  CO.  v.  MORGAN  et  al.,  Appellant.    567 
1918.]  SyllabuB— Statement  of  Facts. 


Beaver  Trust  Company  v.  Morgan  et  al., 
Appellant 

Principal  and  suretu — Assignment  of  debt — Transfer  of  coUaieral 
security — Default — Sale  of  coUaieral — Application  of  proceeds  to 
unsecured  debt — Value  of  stoch — Evidence — Discharge  of  surety, 

1.  A  purchase  of  a  debt  is  a  purchase  of  all  securities  for  it» 
whether  named  or  not  named  at  the  time  of  the  assignment^  un- 
less expressly  agreed  at  the  time  that  they  shall  not  pass. 

2.  A  surety  is  entitled  to  every  remedy  which  the  creditor  has 
against  the  principal,  to  enforce  every  security  and  all  means  of 
payment,  and  to  stand  in  the  place  of  the  creditor,  not  only  through 
the  medium  of  the  security  pledged  but  even  of  securities  taken 
without  his  knowledge. 

3.  If  a  creditor  releases  the  principal  from  the  payment  of  the 
debt,  he  thereby  releases  the  surety  entirely,  but  if  he  releascQ  the 
principal  from  a  part  only,  the  surety  is  released  only  pro  tanto. 

4.  While  ordinarily  the  price  obtained  for  an  article  in  the  oi>en 
market  is  the  r>c8t  evidence  of  its  value,  where  a  creditor  sells  a 
pledged  security  on  default  of  the  debtor  and  buys  it  at  its  own  sale 
and  improperly  applies  the  proceeds  to  a  debt  other  than  the  one 
secured,  such  appropriation  casts  sufici^it  discredit  upon  the  bona 
fides  of  the  sale  to  warrant  a  finding  that  the  real  value  of  the  se- 
curity was  greater  than  the  price  obtained. 

6.  Where  collateral  pledged  as  security  for  a  note  upon  which 
there  is  a  surety  is  applied  by  the  holder  of  tLe  note  to  the  pay- 
ment of  another  obligation  of  the  maker,  without  the  consent  of 
the  surety,  the  surety  is  relieved  from  liability  on  the  note  pro 
tanto. 

6.  Where  in  such  case  the  value  of  the  collateral  was  sufficient 
to  discharge  the  note  and  such  collateral  was  sold  and  the  proceeds 
applied  to  the  payment  of  another  obligation  of  the  maker  of  the 
note,  the  debtor  could  not  thereafter  successfully  claim  any  part 
of  the  proceeds  of  a  shenfPs  sale  of  the  real  estate  of  the  surety, 
although  his  judgment  was  prior  to  that  of  other  creditors. 

Argued  Oct.  2, 1917.  Appeal,  No.  31,  Oct.  T.,  1917,  by 
The  Peoples  National  Bank  of  Bochester,  Pa.,  from  order 
of  C.  P.  Beaver  Co.,  June  T.,  1916,  No.  220,  sustaining 
exceptions  to  sheriflPs  return  of  distribution  of  proceeds 
of  a  sheriflPs  sale,  in  case  of  Beaver  Trust  Company  v. 


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568    BEAVER  TR.  CO.  v.  MORGAN  et  al.,  Appellant. 

Statement  of  Facts— Opinion  of  the  Court.  [259  Pa. 
Ouy  H.  Morgan^  The  Peoples  National  Bank  of  Boches* 
ter.  Before  Brown,  C.  J.,  Mbstrbzat,  STBWAirr,  Pra- 
ZER  and  Walling,  J  J.   Affirmed. 

Exceptions  to  return  of  sheriff,  showing  distribution 
of  the  proceeds  of  a  sheriffs  sale.    Before  Baldwin,  P.  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  sustained  the  exceptions.  The  Peoples  Na- 
tional Bank  of  Rochester,  Pa.,  appealed. 

Error  assigned  was  in  sustaining  the  excepticms. 

A.  P.  Marshall,  with  him  Chas.  R.  Eckert,  for  appel- 
lant. 

William  A.  McConnel,  for  appellee. 

Opinion  by  Mr.  Justice  Stewart,  January  7, 1918 : 
This  dispute  arises  out  of  the  distribution  of  the  pro- 
ceeds of  the  sheriff's  sale  of  the  real  estate  of  one  J.  W. 
Jack.  The  original  transaction  out  of  which  the  contro- 
versy arises  presents  no  unusual  feature;  nor  are  the 
facts  relating  to  the  subject  in  dispute.  On  the  7th 
March,  1911,  the  Monaca  National  Bank  loaned  to  M.  L, 
Jack  the  sum  of  |1,450,  taking  as  security  therefor  a 
judgment  note  signed  by  M.  L.  Jack  and  J.  W.  Jack  in 
like  amount,  payable  at  four  months,  and  also  fifteen 
shares  of  the  capital  stock  of  the  Rochester  Trust  Com- 
pany owned  by  M.  L.  Jack,  as  collateral.  The  loan  was 
renewed  at  regular  intervals  until  loth  April,  1913,  on 
which  day  judgment  was  confessed  and  entered  upon  the 
single  bill  given  by  way  of  renewal  in  favor  of  Robert  C. 
Campbell,  cashier,  and  against  M.  L.  Jack  and  J.  W. 
Jack,  reduced  later  in  amount  to  |1,425.  On  4th  Decem- 
ber following  the  obligation  was  again  renewed,  but  in 
somewhat  different  form,  the  change  not  affecting,  how- 
ever, in  any  way  the  legal  status  of  the  parties,  except  to 


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BEAVER  TR.  CO.  t\  MORGAN  et  al.,  Appellant.    569 
1918.]  Opinion  of  the  Court, 

make  J.  W.  Jack  guarantor  instead  of  surety^  leaving 
the  contract  in  all  other  respects  the  same  as  before.  On 
March  4, 1916,  the  Monaca  National  Bank  sold,  assigned 
and  set  over  to  the  Peoples  National  Bank  all  its  right, 
title  and  interest  in  the  renewal  note,  and  as  part  of  the 
transaction  turned  over  to  the  said  bank  the  fifte^i 
shares  of  Rochester  Trust  Company  stock  which  M.  L. 
Jack  had  deposited  with  it  as  collateral  to  the  original 
loan,  and  assigned  to  said  bank  the  judgment  it  had 
entered  on  the  single  bill  of  M.  L.  and  J.  W.  Jack.  Mean- 
while, 18th  February,  1916,  M.  L.  Jack  had  obtained  a 
loan  from  the  Peoples  National  Bank  of  f  1,780  on  his 
own  obligation,  containing  a  power  of  attorney  for  the 
confession  of  judgment  As  collateral  security  for  this 
loan  M.  L.  Jack  pledged  the  fifteen  shares  of  Rochester 
Trust  Company  stock  that  he  had  previously  pledged  to 
the  Monaca  Bank.  These  shares  having  come  into  the 
possession  of  the  Peoples  Bank,  upon  default  of  payment 
by  M.  L.  Jack,  the  Peoples  Bank,  as  it  had  a  right  to  do 
under  its  contract,  on  20th  June,  1916,  sold  the  fifteen 
shares  of  stock  of  the  Rochester  Trust  Company  for  the 
sum  of  f  1,290,  and  applied  the  same  as  a  credit  to  the 
f  1,780  note  of  M.  L.  Jack. 

J.  W.  Jack,  the  surety,  was  the  owner  of  certain  lots 
of  ground  in  the  Borough  of  Rochester,  in  Beaver  Coun- 
ty, on  which  there  Xiras  a  first  lien  of  |3,645.54  in  favor 
of  the  Beaver  Trust  Company ;  next  in  priority  was  the 
lien  of  the  judgment  entered  by  the  Monaca  Bank  to  No. 
215,  June  Term,  1913,  against  M.  L.  and  J.  W.  Jack,  for 
f  1,450,  for  the  loan  to  M.  L.  Jack,  for  which  J.  W.  Jack 
was  surety.  Several  other  liens  followed  in  their  order. 
This  was  the  situation  when  execution  process  was  is- 
sued on  the  first  lien  by  virtue  of  which  the  real  estate  of 
J.  W.  Jack  was,  on  the  3d  June,  1916,  sold  by  the  sheriff 
for  95,200.  The  sheriff  in  his  return  of  sale  applied  out 
of  the  purchase-money  (3,645.54  to  the  judgment  held  by 
the  Beaver  Trust  Company,  and,  without  discoverable 


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570    BEAVER  TR.  CO.  v.  MORGAN  et  al.,  Appellant. 

Opinion  of  the  Court.  [259  Fa. 

reason^  awarded  the  balance  of  the  fund  to  the  party 
from  whom  J.  W.  Jack  had  acquired  title.  Upon  excep- 
tions filed  by  the  subsequent  lien  creditors,  the  court  set 
aside  so  much  of  the  return,  and  proceeded  to  a  hearing 
in  which  the  facts  we  have  heretofore  recited  were  de- 
veloped. Disallowing  entirely  distribution  to  the  judg- 
ment transferred  to  the  Peoples  National  Bank  by  the 
Monaca  Bank,  next  in  order  of  priority,  the  court  award- 
ed the  balance  remaining  to  the  subsequent  lien  creditors 
in  their  order  and  decreed  accordingly.  The  appeal  is  by 
the  Peoples  National  Bank  from  this  decree. 

It  is  quite  clear  that  this  bank  stock,  while  in  the 
hands  of  the  Peoples  National  Bank,  was  as  much  im- 
pressed with  its  collateral  character  as  when  in  the  hands 
of  the  Monaca  Bank.  When  the  Peoples  National  Bank 
purchased  from  the  Monaca  Bank  the  obligation  of  the 
Jacks,  it  acquired  as  well,  by  operation  of  law,  whatever 
was  pledged  for  its  payment,  the  same  to  be  held  and 
used,  however,  for  no  other  purpose  than  that  for  which 
it  had  been  originally  pledged.  A  purchase  of  a  debt  is  a 
purchase  of  all  the  securiti^  for  it,  whether  named  or 
not  at  the  time  of  the  assignment,  unless  expressly  agreed 
at  the  time  they  shall  not  pass.  Poster  v.  Pox,  4  W.  &  S. 
92.  On  payment  of  the  note  by  the  surety,  the  latter 
would  be  entitled  to  the  collateral.  Neither  the  bank  nor 
its  assigns,  nor  the  surety,  could  use  the  collateral  for 
other  purpose  than  that  for  which  it  had  been  expressly 
pledged.  It  made  no  difference  how  many  obligations 
the  Peoples  National  Bank  held  against  J.  W.  Jack,  it 
was  beyond  the  power  of  the  latter  to  subject  the  stock 
to  other  collateral  liability, to  the  prejudice  of  the  surety, 
J.  W.  Jack,  than  that  for  which  it  was  available  for  the 
latter's  protection.  "For  a  surety,"  as  said  in  Hawk  v. 
Geddis,  16  S.  &  R.  23,  "is  entitled  to  every  remedy  which 
the  creditor  has  against  the  principal,  to  enforce  every 
security  and  all  means  of  payment,  to  stand  in  the  place 
of  the  creditor,  not  only  through  the  medium  of  the  se- 


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BEAVER  TR.  CO.  v.  MORGAN  et  al.,  AppeUant.    571 
191S.]  Opinion  of  the  Court. 

curity,  but  even  of  securities  taken  without  his  knowl- 
edge. He  has  the  right  to  have  these  securities  trans- 
ferred to  him,  and  avail  himself  of  them,  though  there 
was  no  stipulation  for  that  purpose."  The  application  of 
the  proceeds  ot  the  sale  of  this  pledged  stock  to  the  indi- 
vidual indebtedness  of  M.  L.  Jack  was  a  palpable  mis- 
apprehension. It  was  applicable  to  the  note  that  the 
bank  had  acquired  from  the  Monaca  Bank  on  which  J. 
W.  Jack  was  surety  and  no  other.  The  legal  effect  of 
this  misapplication  was  to  release  J.  W.  Jack  from  lia- 
bility on  the  note  pro  tanto.  In  NeflPs  App.,  9  W.  &  S. 
36,  the  law  governing  in  such  cases  is  thus  stated  in  the 
opinion  by  Kennedy,  J.:  "So  if  the  creditor  releases 
the  principal  from  the  payment  of  the  debt,  he  thereby 
releases  the  surety  entirely,  but  if  he  release  the  princi- 
pal from  a  part  only  of  it,  he  only  releases  the  surety  pro 
tanto ;  and  there  is  not  even  a  shadow  of  reason  why  it 
should  be  considered  a  release  of  any  more.  So  if  the 
creditor  give  up  to  the  principal,  or  release  a  security 
which  he  has  obtained  from  him  for  the  whole  of  the 
debt,  it  will  operate  as  a  release  or  discharge  of  the 
surety  from  all  liability  as  such ;  but  if  the  sefcurity  re- 
leased be  only  for  part  of  the  debt,  the  surety  will  only  be 
released  pro  tanto.  The  ground  upon  which  the  relin- 
quishment or  negligent  losing  of  a  security  taken  of  the 
principal  debtor  by  the  creditor  for  the  whole  or  part 
only  of  the  debt  is  held  to  be  a  release  of  the  surety 
either  for  the  whole  or  pro  tanto  as  the  case  may  be,  is, 
that  the  surety  upon  payment  of  the  debt  to  the  creditors 
is  entitled  to  the  benefit  of  all  securities  which  the  credi- 
tor has,  that  he  could  have  rendered  available  against  the 
principal  debtor,  and  if  any  of  those  securities  have  be- 
come lost,  or  have  become  lessened  in  value,  in  conse- 
quence of  the  neglect  or  default  of  the  creditor,  the 
surety's  liability  to  the  creditor  will  be  diminished  to 
that  extent."  In  Holt  v.  Bodey,  18  Pa.  207,  there  is  not 
only  a  distinct  and  express  reaflBrmance  of  the  doctrine 


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572    BEAVER  TR.  CO.  v.  MORGAN  et  al,  Appellant. 

Opiuiou  of  tho  Court.  [259  Pa. 

stated  in  the  case  above  cited,  but  express  authority  may 
there  be  found  for  holding  that  the  right  of  the  surety, 
in  such  case  as  we  have  here,  ^^is  transmitted  to  the 
surety's  creditors  where  the  claim  is  used  so  as  to  dis- 
appoint their  liens."  The  facts  of  the  present  case* 
clearly  bring  it  within  these  rulings,  as  the  learned 
judge  of  the  court  below  held.  The  Peoples  National 
Bank  had  a  perfectly  legal  right  to  sell  the  pledged 
stock ;  but  it  had  no  right  in  law  or  equity  to  apply  a« 
a  credit  the  proceeds  of  sale  to  any  other  indebtedness 
than  that  for  which  it  was  originally  pledged,  namely, 
that  which  was  represented  by  the  note  assigned  to  it  by 
the  Monaca  National  Bank  upon  which  M.  L.  Jack  was 
principal  and  J.  W.  Jack  but  surety.  As  a  legal  result  of 
its  misapplication,  J.  W.  Jack  was  thereupon  discharged 
as  surety  to  whatever  extent  he  could  have  made  the 
stock  available  against  the  principal  debtor.  The  court 
finds  as  a  fact  that  the  value  of  this  stock  was  the  full 
equivalent  of  the  note.  This  finding  is  excepted  to, but  we 
see  no  sufficient  ground  on  which  to  disturb  it.  The  Peo- 
ples National  Bank  bought  the  stock  at  its  own  sale.  We 
see  in  the  subsequent  misappropriation  of  the  proceeds, 
as  the  court  below  must  have  done,  quite  enough  to  cast 
discredit  upon  the  bona  fides  of  the  sale.  Ordinarily  the 
price  obtained  for  an  article  in  the  open  market  is  the 
best  evidence  of  its  value,  but  there  are  cases  in  which  it 
is  not  the  best  or  only  evidence,  and  this  is  one  of  them. 
What  the  surety  in  this  case  lost  was  not  to  be  measured 
by  market  value  at  any  particular  time,  but  by  its  value 
to  the  surety  for  his  indemnity.  The  court  below  held 
that  its  real  value  was  sufficient  to  extinguish  the  en- 
tire indebtedness  for  which  the  surety  was  liable,  and 
the  evidence  fully  warranted  the  conclusion. 

It  results,  from  what  we  have  said,  that  with  the  ex- 
tinguishment of  the  debt  the  collateral  judgment  against 
the  surety  fell,  and  distribution  to  it  was  properly  re- 
fused. 

The  decree  is  affirmed. 


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HELEN  FRANCES  YOUNG'S  ADOPTION.        573 
1918.]  Syllabus— Statement  of  Facts. 

Helen  Frances  Young's  Adoption* 

Adoption — Fmlure  of  father  to  support  child — Act  of  May  f^, 
1916,  P,  L.  680 — Decree — Consent  of  mother — Insanity  of  father — 
Death  of  father — 8vhsequent  proceedings  hy. mother  to  set  decree 
aside — Status  of  committee — Appeal — Certiorari, 

1.  By  adoption  a  new  status  is  created  which  cannot  be  stricken 
down  because  of  regret  of  a  parent  who  consented  thereto. 

2.  A  decree  of  adoption  based  upon  a  finding  that  the  father  of 
the  child  had  neglected  and  refused  to  support  said  child  for  up- 
wards of  a  year,  is  presumed  to  be  based  on  evidence,  and  will  not 
be  set  aside  on  the  ground  of  lack  of  jurisdiction  where  the  pro- 
ceedings are  before  a  proper  tribunal,  and  no  appeal  was  taken. 
from  the  decree  of  adoption. 

3.  Whatever  right  a  parent  has  to  the  custody  of  his  child  ter- 
minates at  his  death,  and  the  committee  in  lunacy  of  a  parent 
whose  child  had  been  adopted  has  no  right  after  the  death  of  the 
parent  to  join  in  an  appeal  from  a  decree  refusin^;  to  set  aside  a 
decree  of  adoption. 

4.  A  child  who3e  father  had  failed  to  support  it  owing  to  ill 
health,  and  as  the  court  below  found  within  the  meaning  of  the 
Act  of  May  28,  1915,  P.  L.  580,  was  adopted  by  relatives,  under  a 
decree  of  the  court,  to  which  the  mother  consented.  The  decree 
was  based  upon  evidence  which  was  not  preserved  of  record.  There- 
after the  father  died  and  the  mother  petitioned  for  the  setting  aside 
of  the  decree,  contending  that  she  had  consented  to  the  i)etition  for 
adoption,  in  the  belief  that  she  was  merely  allowing  the  adopting 
parents  to  educate  the  child.  There  was  no  evidence  of  any  fraud 
or  bad  faith  on  the  part  of  the  adopting  parents.  Held,  the  lower 
court  properly  refused  to  set  aside  the  decree  of  adoption. 

5.  An  appeal  from  a  decree  in  an  adoption  proceeding  is  in  effect 
a  certiorari,  and  brings  up  nothing  but  the  lecord.  The  Supreme 
Court  rannot  review  the  merits,  but  is  entitled  to  inspect  the  whole 
record  with  regard  to  the  regularity  and  propriety  of  the  proceed- 
ings, and  to  ascertain  whether  the  court  below  exceeded  its  juris- 
diction or  its  proper  legal  discretion,  and  if  the  proceedings  are 
regular  in  these  respects  the  appeal  will  be  dismissed. 

Argued  Oct.  11, 1917.  Appeal,  No.  103,  Oct.  T.,  1917, 
by  George  W.  Thomi)son,  Committee  of  Nelson  Young 
and  Frances  Thompson  Young,  from  decree  of  C.  P.  Al- 


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574   HELEN  FRANCES  YOUNG'S  ADOPTION. 

Statement  of  Facta-^Opinion  of  the  Court.  [369  Pa. 
legheny  Co.,  July  T.,  1915,  No.  2316,  refusing  to  set  aside 
decree  of  adoption  in  case  of  In  re  Adoption  of  Helen 
Frances  Toung.  Before  Mbstrezat,  Pottbb,  Stbwabt, 
MosGHZiSKBB  and  Walling,  JJ.    Affirmed. 

Petition  to  set  aside  decree  of  adoption.  Before 
Shafer,  p.  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  refused  to  set  aside  the  decree.  George  W. 
Thompson,  Committee  of  Nelson  Toung  and  Frances 
Thompson  Young  appealed. 

Error  assigned  was  the  decree  of  the  court. 

A.  Leo  WeU,  with  him  Oeorge  W.  Johnson,  Charles  M. 
Thorp  and  L.  Pearson  Scott,  for  appellants. 

William  A.  Challener,  with  him  Clarence  Burleigh,  for 
appellees. 

Opinion  by  Me.  Justice  Walling,  January  7, 1918: 
This  is  a  proceeding  to  set  aside  a  decree  of  adoption. 
On  June  21,  1915,  James  B.  Laughlin  and  Clara  Y. 
Laughlin,  his  wife,  residents  of  Pittsburgh,  presented 
their  petition  in  the  usual  form  to  the  Court  of  Common 
Pleas  of  Allegheny  County,  setting  forth,  inter  alia,  their 
desire  of  adopting  as  their  child  one  Helen  Frances 
Young,  the  minor  child  of  Nelson  E.  and  Frances  Thomp- 
son Young;  that  the  mother  had  consented  to  the  adop- 
tion and  that  the  father  had  neglected  and  refused  to 
provide  for  the  child  for  a  period  of  more  than  one  year 
next  preceding  the  presentation  of  the  petition,  etc.  Mrs. 
Young  also  formally  joined  in  the  prayer  of  the  petition 
and  gave  her  written  consent  to  the  adoption.  The 
court,  Hon.  Thomas  D.  Caenahan  presiding,  proceeded 
to  a  hearing  at  which  Mr.  and  Mrs.  Laughlin  and  Mrs. 
Young  were  present  and  examined,  and  the  matter  fully 
considered,  at  the  conclusion  of  which  the  court  made  a 


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HELEN  PRANCES  YOUNG'S  ADOPTION.        575 
1W8.]  Opinion  of  the  Court. 

decree  as  follows :  "And  now,  June  21, 1915,  the  forego- 
ing petition  presented  in  open  court,  and  after  hearing, 
it  appearing  to  the  court  that  Nelson  E.  Young,  the  fa- 
ther of  Helen  Frances  Young,  a  minor  child,  has  neg- 
lected and  refused  to  support  said  child  for  upwards  of 
one  year,  and  that  Prances  Thompson  Young,  the  mother 
of  said  child,  has  not  been  guilty  of  any  neglect  of  said 
child,  and  has  consented  to  its  adoption  by  the  petitioner, 
and  it  further  appearing  to  the  court  that  the  welfare  of 
said  child  will  be  promoted  by  the  adoption  of  her  by  the 
petitioners,  it  is  ordered  and  adjudged  that  said  Helen 
Frances  Young  shall  and  do  assume  the  name  of  Helen 
Young  Laughlin,  and  have  all  the  rights  of  an  heir  and 
child  of  said  James  B.  Laughlin  and  Clara  Y.  Laughlin, 
his  wife,  and  be  subject  to  the  duties  of  such  child,  and 
the  adoption  prayed  for  be  and  is  hereby  allowed  and 
granted."  The  child^s  father  was  then  in  a  sanitarium 
at  Cincinnati,  Ohio,  where  he  had  been  a  patient  from 
October,  1913,  suffering  from  mental  and  physical  ail- 
ments, and  where  he  remained  until  his  death  in  July, 
1916.  Previous  thereto,  in  April,  1916,  George  W. 
Thompson  had  been  appointed  his  committee  by  proceed- 
ings in  lunacy  in  West  Virginia,  where  Mr.  Young  had 
formerly  resided. 

Mr.  Young  was  a  brother  of  Mrs.  Laughlin,  and  during 
his  illness  was  assisted  financially  by  the  Laughlins  who 
had  ample  means.  The  parties  were  on  terms  of  inti- 
macy and  the  child  had  lived  with  the  Laughlins  for 
some  months  before  the  adoption.  In  the  fall  of  1915 
Mrs.  Young  became  dissatisfied  because  her  wishes  as  to 
visiting  and  receiving  visits  from  the  child  were  not 
granted.  The  dissatisfaction  culminated  in  May,  1916, 
when  she  and  Mr.  Young's  committee  filed  a  petition  in 
the  court  below  asking  that  the  decree  of  adoption  be  set 
aside;  to  which  petition  the  Laughlins  filed  answer  and 
testimony  was  taken.  After  careful  consideration,  the 
court,  in  an  opinion  by  President  Judge  Shafbr,  refused 
the  petition.    From  which  order  Mrs.  Young  and  the 


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576        HELEN  PEANCES  YOUNG'S  ADOPTION. 

Opinion  of  the  Court.  [269  Pa. 

committee  took  this  appeal.  The  hearing  on  the  petition 
to  set  aside  the  adoption  was  had  after  the  death  of  Mr. 
Young.  It  was  urged  by  appellants  in  the  court  below 
and  here  that  Mr.  Young's  failure  to  support  his  child 
was  the  result  of  ill  health  and  not  of  drunkenness,  prof- 
ligacy or  other  cause  within  the  meaning  of  the  statute 
of  May  28, 1915,  P.  L.  580 ;  and,  as  he  had  not  consented 
to  the  adoption,  the  court  was  without  jurisdiction. 
There  was  no  record  preserved  of  the  evidence  submitted 
to  the  court  in  the  proceeding  for  adoption,  so  we  have 
no  accurate  knowledge  of  just  what  it  consisted.  The 
court  there  finds  that  the  father  ^'has  neglected  and  re- 
fused to  support  said  child  for  upwards  of  a  year."  The 
presumption  is  that  such  finding  was  based  on  the  evi- 
dence. The  proceedings  are  regular;  it  was  a  matter 
within  jurisdiction  of  the  court ;  and  that  was  the  proper 
tribunal  to  determine  whether  there  had  been  such  a  n^- 
lect  and  refusal  to  support  as  is  contemplated  by  law. 
The  jurisdictional  facts  were  averred  and  found  and  no 
appeal  taken  therefrom.  In  our  opinion  the  record  dis- 
closes nothing  that  would  warrant  setting  aside  the  de- 
cree of  adoption  for  want  of  jurisdiction.  The  father's 
legal  status  as  a  lunatic  was  not  fixed  until  after  the 
adoption,  and  he  died  before  the  order  appealed  from  was 
made.  His  rights  terminated  at  his  death ;  and  in  our 
opinion  his  committee  had  no  authority  thereafter  to 
join  in  the  appeal,  whatever  his  rights  may  have  been 
theretofore.  The  trust  ended  by  the  death  of  the  luna- 
tic: Sec.  41,  Act  of  June  13,  1836,  P.  L.  592  (Purdon's 
Digest,  Vol.  2,  page  2396) ;  and  the  committee's  author- 
ity then  ceased :  Stobert  v.  Smith,  184  Pa.  34. 

Mrs.  Young  is  practically  the  only  appellant,  and  con- 
tends that  while  she  signed  the  adoption  petition  it  was 
done  under  a  misapprehension  and  that  she  never  in  fact 
consented  thereto,  but  thought  it  was  a  proceeding  to  en- 
able the  Laughlins  to  educate  the  daughter,  not  to  have 
her  as  their  own ;  and  also  that  whatever  she  did  was 
the  result  of  their  persuasion  and  undue  influence.    The 


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HELEN  FRANCES  YOUNG'S  ADOPTION.        577 
1918.]  Opinion  of  the  Court, 

evidence  fails  to  sustain  either  contention.  The  petition 
for  the  adoption,  her  consent  thereto  and  the  court's 
decree  are  very  simple  and  the  matter  was  fully  dis- 
cussed in  open  court.  The  weight  of  the  evidence  indi- 
cates that  this  adoption  had  been  well  considered.  There 
is  nothing  to  support  any  claim  of  fraud  or  bad  faith  on 
the  part  of  Mr.  and  Mrs.  Laughlin.  Mrs.  Young  un- 
doubtedly supposed  that  she  would  have  the  privilege  of 
exchanging  visits  with  the  child,  which  was  justified  by 
the  previous  relations  of  the  parties,  although  there  was 
no  agreement  to  that  eflfect  and  that  question  is  not  be- 
fore the  court.  The  adoption  seems  to  have  been  suita- 
ble and  for  the  child's  welfare.  Mrs.  Young's  financial 
condition  has  improved  since  that  time  and  she  now  feels 
able  to  care  for  her  child  and  longs  for  its  companion- 
ship. But  by  adoption  a  new  status  was  created  which 
cannot  be  stricken  down  because  of  regret  of  a  parent 
who  consented  thereto. 

Mrs.  Young  was  present  in  court  and  heard  all  the 
testimony  including  that  as  to  her  husband's  neglect  and 
refusal  to  support  the  child  and  joined  in  the  prayer  for 
the  adoption,  and  we  agree  with  the  court  below  that, 
whatever  Mr.  Young's  rights  might  be  if  alive,  she  can- 
not question  the  validity  of  the  adoption  on  grounds  per- 
sonal to  him.  The  court  acted  upon  the  case  as  pre- 
sented by  Mrs.  Young  and  others  and  she  cannot  now 
be  heard  to  say  that  the  facts  were  not  as  then  stated : 
See  Wolfe  v.  Gordon,  4  Sadler  307,  and  note. 

An  appeal  in  case  of  adoption  is  in  eflfect  a  certiorari 
and  brings  up  nothing  but  the  record:  Lewis'  App. 
(Pa.),  10  Atlantic  Repr.  126;  Vandermis  v.  Gilbert,  10 
Pa.  Superior  Ct.  570.  While  in  such  case  we  can- 
not review  the  merits,  yet  "we  are  entitled  to  inspect  the 
whole  record  with  regard  to  the  regularity  and  propriety 
of  the  proceedings  to  ascertain  whether  the  court  below 
exceeded  its  jurisdiction  or  its  proper  legal  discretion'' : 
Robb's  Nomination  Certificate,  188  Pa.  212;  Independ- 
ence Party  Nomination,  208  Pa.  108;  Franklin  Film 
Vol.  cclix— 37 


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578        HELEN  FRANCES  YOUNG'S  ADOPTION. 

Opinion  of  the  Court.  [269  Pa. 

Mfg.  Corporation,  253  Pa.  422;  see  alao  In  re  Diamond 
St.,  Pittsburgh,  196  Pa.  254,  and  Foy's  ElecUon,  228  Pa. 
li.  In  our  opinion  the  court  below  did  not  exceed  its 
jurisdiction  or  abuse  its  legal  discretion  in  refusing  ap- 
pellants' petition. 
The  appeal  is  dismissed  at  the  costs  of  the  appellants. 


Dzikowska  v.  Superior  Steel  Company  et  aL, 
Appellants. 

Workmen  8  Compensation  Law-^Injury  in  course  of  employment 
— Interval  of  leisure  while  awaiting  material — Lighting  cigarette — 
Clothes  catching  afire — Death — Award — Act  of  June  3, 1916,  P.  L. 
7S6. 

1.  In  order  to  hold  an  employer  liable  under  the  Workmen's 
Compensation  Law  of  1915  it  is  not  necessary  to  show  that  the  in- 
jury arose  out  of  the  employment.  It  is  sufficient  if  it  occurred 
in  the  course  of  employment,  except  for  injuries  intentionally  self- 
inflicted,  or  caused  by  an  act  of  a  third  person  intended  to  injure 
the  workman  for  reasons  personal  to  him. 

2.  An  employer  is  liable  for  compensation  for  an  injury  sustained 
by  a  woricman  during  a  short  interval  in  his  work  while  awaitin^r 
the  arrival  of  material  with  which  to  work. 

3.  Acts  of  ministration  by  a  servant  to  himself,  such  as  quench- 
ing his  thirst,  satisfying  his  hunger,  and  protecting  himself  from 
excessive  cold,  the  performance  of  which  while  at  work  are  rea- 
sonably necessary  to  his  health  and  comfort,  are  incident  to  his 
employment  and  acts  of  service  therein  within  the  workmen's  com- 
pensation acts,  although  they  are  only  indirectly  conducive  to  the 
purpose  of  the  employment. 

4.  An  employment  is  not  broken  by  mere  intervals  of  leisure 
such  as  those  taken  for  a  meal  and  if  an  accident  occurs  to  a  work- 
man during  such  time  the  employer  is  liable  even  though  the  work- 
man is  paid  by  the  hour  for  the  time  he  is  actually  at  work,  espe- 
cially where  the  accident  occurs  on  the  employer's  premises,  or 
about  his  pro^^erty,  unless  the  workman  is  doing  something  that  is 
wholly  foreign  to  his  employment 

6.  It  is  not  unreasonable  for  workmen  to  smoke  out  of  doors, 
during  intervals  in  their  work,  where  it  does  not  interfere  with 
their  duties. 

6.  Where  an  employee,  during  an  intermission  in  hia  work,  while 


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DZIKOWSKA  V.  SUPERIOR  STEEL  CO.,  Appel.  579 
1918.]  Syllabus — ^Arguments, 

waiting  for  material,  struck  a  match  for  the  purpose  of  lighting  a 
cigarette  and  as  a  result  his  clothing,  saturated  with  oil,  by  reason 
of  the  wor6  in  which  he  was  engaged,  caught  on  fire  and  he  was 
fatally  burned,  an  award  of  compensation  to  his  dependents  was 
properly  made. 

Argued  Oct.  11, 1917.  Appeal,  No.  104,  Oct.  T.,  1917, 
by  defendants,  from  judgment  of  C.  P.  Allegheny  Co., 
April  T.,  1917,  No.  1090,  dismissing  exceptions  to  deci- 
sion of  the  Workmen's  Compensation  Board,  in  case  of 
Mary  Dzikowska  v.  Superior  Steel  Company  and  ^tna 
Life  Insurance  Company.  Before  Mbstrezat,  Potter, 
Stewart,  Mosc^hziskbr  and  Walling,  JJ.    Affirmed. 

Exceptions  to  award  of  Workmen's  Compensation 
Board.     Before  Evans,  J. 

The  opinion  of  the  Supreme  Court  states  the  facts. 

The  court  dismissed  the  exceptions.  Defendants  ap- 
pealed. 

Errors  assigned  were  in  dismissing  the  exceptions. 

John  G.  Frazer,  with  him  David  A.  Reed,  and  Reed, 
Smith,  Shaw  d  Beal,  for  appellants. — The  deceased  was 
not  engaged  in  the  furtherance  of  the  business  of  his 
employer  at  the  time  of  the  accident  and  his  dependents 
are  not  entitled  to  recovery :  Tomkoska  v.  Pressed  Steel 
Car  Co.,  2  Dept.  Rep.  (Pa.)  1708;  Peterson  v.  Davis 
Lupton's  Sons  Co.,  2  Dept,  Rep.  (Pa.)  841;  Smith  v. 
Lancashire  &  Yorkshire  Ry.,  1  Queen's  Bench  141 — 1899. 

Allan  Davis,  for  appellee. — The  deceased  was  clearly 
engaged  in  furthering  his  master's  business  at  the  time 
of  his  injury :  Botto  et  al.  v.  Hamilton  et  al.,  Dauphin 
Co.  Rep.,  1917,  VoL  20,  57 ;  Amerzor  v.  Jones  &  Laugh- 
lin  Steel  Co.,  2  Dept.  Rep.  Pa.  2517 ;  McManus  v.  Winter 
Garden  Co.,  2  Dept.  Rep.  Pa.  1980;  Chambers  v.  Wood- 
bury Mfg.  Co.,  106  Md.  496;  Bolden  v.  Greer,  2  Dept. 
Rep.  Pa.  2077. 


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580  DZIKOWSKA  v.  SUPERIOR  STEEL  CO.,  Appel. 

Opinion  of  the  Court.  [259  Pa. 

Opinion  by  Mr.  Justice  Pottbb,  January  7, 1918 : 

This  is  an  appeal  by  the  Superior  Steel  Company,  and 
the  iEtna  Life  Insurance  Company,  as  insurance  carrier, 
from  an  order  of  the  Court  of  Common  Pleas  of  Alle- 
gheny County,  dismissing  exceptions  to  a  decision  by  the 
Workmen's  Compensation  Board,  awarding  compensa- 
tion to  the  widow  and  minor  children  of  Victor  Daikows- 
ka,  deceased. 

There  are  five  assignments  of  error,  all  to  the  dismissal 
of  exceptions  filed  by  appellants.  They  raise  but  one 
question,  which  is  stated  in  substantially  the  same  form 
by  counsel  for  appellants  and  appellee,  the  statement  <rf 
the  latter  being  as  follows :  "During  an  intermission  in 
the  work  of  a  mill,  an  employee  struck  a  match  sup- 
posedly for  the  purpose  of  lighting  a  stogie  or  cigarette, 
and  as  a  result  his  clothing  caught  fire  and  he  was  fa- 
tally burned.  Was  he  injured  by  an  accident  occurring 
in  the  course  of  his  employment,  within  the  meaning  of 
the  Workmen's  Compensation  Act  of  1915?" 

Section  301  of  that  Act,  June  3,  1915,  P.  L.  736,  pro- 
vides that  when  employer  and  employee  shall  by  agree- 
ment, either  express  or  implied,  accept  the  elective  com- 
pensation provisions  of  the  act,  "compensation  for  per- 
sonal injury  to,  or  for  the  death  of,  such  employee,  by  an 
accident,  in  the  course  of  his  employment,  shall  be  made 
in  all  cases  by  the  employer,  without  regard  to  negli- 
gence,  provided   that  no  compensation  shall  be 

made  when  the  injury  or  death  be  intentionally  self-in- 
flicted." In  the  same  section  it  is  further  provided :  "The 
term  ^injury  by  an  accident  in  the  course  of  his  employ- 
ment,' as  used  in  this  article,  shall  not  include  an  injury 
caused  by  the  act  of  a  third  person  intended  to  injure  the 
employee  for  reasons  personal  to  him,  and  not  directed 
against  him  as  an  employee  or  because  of  his  employ- 
ment; but  shall  include  all  other  injuries  sustained 
while  the  employee  is  actually  engaged  in  the  further- 
ance of  the  business  or  affairs  of  the  employer,  whether 
upon  the  employer's  premises  or  elsewhere " 


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DZIKOWSKA  V.  SUPERIOR  STEEL  CO.,.Appel.  581 
1918.]  Opinion  of  the  Court. 

In  the  case  at  bar  Dzikowska^  appellee's  husband,  with 
other  workmen^  was  engaged  in  the  shipping  room  load- 
ing steel  upon  a  railroad  car.  They  had  loaded  all  the 
steel  at  hand,  and  were  waiting  for  the  arrival  of  trucks 
with  more  steel.  Dzikowska  wore  an  apron  of  burlap, 
and  also  had  burlap  wrapped  around  his  arms  for  the 
purpose  of  protecting  him  in  handling  the  steel,  much  of 
which  was  oiled,  so  that  his  clothing  was  more  or  less 
saturated  with  oil.  He  stepped  out  of  the  shipping  room 
and  went  into  a  box  car,  supposedly  in  order  to  smoke,  as 
he  said  afterwards  that,  in  striking  a  match  upon  his 
trousers,  the  burlap  apron  caught  fire.  No  one  saw 
him  at  the  moment,  but  directly  afterward  he  ran  out  of 
the  car  all  aflame,  and  was  so  badly  burned  that  his 
death  resulted  in  a  few  days. 

In  the  compensation  acts  of  some  of  the  states,  com- 
pensation is  allowed  only  for  injuries  "arising  out  of  and 
in  the  course  of  his  employment^'  thus  attaching  two  con- 
ditions to  the  right  to  recover.  In  the  Pennsylvania 
statute,  the  words  "arising  out  of  do  not  appear,  and  we 
are,  therefore,  relieved  from  the  necessity  of  considering 
the  question  whether  in  this  case  the  accident  arose  out 
of,  or  was  due  to  the  character  of  the  employment. 
Under  our  statute  compensation  is  given  for  personal  in- 
jury or  death  of  an  employee  "by  an  accident  in  the 
course  of  his  employment,"  and  it  is  further  provided 
that,  while  the  term  used  shall  not  include  certain  in- 
juries caused  by  acts  of  third  persons,  it  "shall  include 
all  other  injuries  sustained  while  the  employee  is  ac- 
tually engaged  in  the  furtherance  of  the  business  or  af- 
fairs of  the  employer,  whether  upon  the  employer's  prem- 
ises or  elsewhere." 

The  fact  that,  in  the  present  case,  Dzikowska  met  with 
an  accident  during  a  short  interval  of  waiting  for  the 
arrival  of  more  material  to  load,  made  no  diflference. 
His  period  of  employment  was  not  broken  thereby.  He 
was  discharging  precisely  the  duty  laid  upon  him  by  his 
employer,  and  in  the  manner  expected  of  him.    As  the 


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582  DZIKOWSKA  v.  SUPERIOB  STEEL  CO.,  Appel. 

Opinion  of  the  Court.  [25d  Pa. 

court  below  said,  "This  waa  not  a  rest  period.  It  was 
not  a  period  when,  by  the  rules  of  the  employment,  the 
employee  was  free  from  the  duties  of  his  employment. 
It  was  an  indeterminate  period  of  waiting  for  the  occur- 
rence of  an  event  which  would  renew  the  active  opera- 
tions of  the  employment.  That  might  be  a  minute,  or 
it  might  be  very  much  more.  But  the  employee  had  not 
been  called  oflf  from  work,  and,  in  renewing  his  work, 
would  not  be  called  back.  He  was  there  ready  to  work 
as  soon  as  the  material  was  ready  for  his  hand."  What 
we  regard  as  a  sound  statement  of  the  principle  involved, 
appears  in  1  Honnold  on  Workmen's  Compensation,  Sec- 
tion 111,  as  follows:  "It  cannot  be  said  that  the 
employment  is  broken  by  mere  intervals  of  leisure  such 
as  those  taken  for  a  meal.  If  an  accident  happened  at 
such  a  time,  there  would  be  no  break  in  the  employment, 
even  though  the  workman  is  paid  by  the  hour  for  the  time 
he  is  actually  at  work,  especially  where  the  accident  oc- . 
curs  on  the  employer's  premises,  or  about  his  property, 
unless  the  workman  is  doing  something  that  is  wholly 
foreign  to  his  employment.  Acts  of  ministration  by  a 
servant  to  himself,  such  as  quenching  his  thirst,  relieving 
his  hunger,  protecting  himself  from  excessive  cold,  per- 
formance of  which  while  at  work  are  reasonably  neces- 
sary to  his  health  and  comfort,  are  incidents  to  his  em- 
ployment and  acts  of  service  therein  within  the  work- 
men's compensation  acts,  though  they  are  only  indirect- 
ly conducive  to  the  purpose  of  the  employment.  Conse- 
quently no  break  in  the  employment  is  caused  by  the 
mere  fact  that  the  workman  is  ministering  to  his  per- 
sonal comforts  or  necessities,  as  by  warming  himself,  or 
seeking  shelter,  or  by  leaving  his  work  to  relieve  nature, 
or  to  procure  drink,  refreshments,  food,  or  fresh  air,  or 
to  rest  in  the  shade." 

Nor  do  we  regard  the  fact  that  the  accident  resulted 
from  his  striking  a  match  for  the  purpose  of  enabling 
him  to  smoke  at  that  time  and  place,  as  being  sufficient 
to  debar  him  and  his  dependents  from  the  benefits  of  the 


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DZIKOWSKA  V.  SUPERIOR  STEEL  CO.,  AppeL  583 
1918.]  Opinion  of  the  Court 

statute.  It  is  not  unreasonable  for  workmen  to  smoke 
out  of  doors,  during  intervals  of  work,  where  it  does  not 
interfere  with  their  duties.  And  in  this  instance  the  fore- 
man testified  that  he  did  not  interfere  with  the  men  when 
they  were  smoking  outside  of  the  building,  but  he  did  not 
allow  smoking  inside. 

The  evidence  showed  that  the  burlap  apron  worn  by 
Dzikowska  for  the  purpose  of  protecting  his  clothes 
while  he  was  working,  which  was  soaked  with  oil  from 
the  steel,  first  caught  fire  from  the  match  and  the  flames 
communicated  to  the  burlap  wrappings  on  his  arms, 
worn  for  the  same  purpose,  and  also  oil  soaked.  If  he 
had  not  worn  these  wrappings,  or  if  they  had  not  become 
unusually  inflammable  by  reason  of  the  work  in  which 
he  was  engaged  for  his  employer,  the  accident  would 
probably  not  have  occurred.  It  is  not  unusual  for  men 
to  strike  matches  on  their  trousers,  without  thought  of 
danger.  The  peril  in  the  present  case  arose,  or  was  at 
least  greatly  increased,  by  the  use  of  burlap  wrappings 
worn  for  the  purposes  of  the  workman's  employment, 
and  their  inflammable  condition  resulted  directly  from 
that  employment.  Dzikowska  was,  of  course,  negligent 
in  striking  the  match  upon  his  oil  soaked  clothes.  But, 
under  the  Workmen's  Compensation  Act  of  1915,  con- 
tributory negligence  on  the  part  of  the  workman  is  not  a 
defense.  The  employer  is  liable  for  accidents  in  the 
course  of  employment,  except  for  injuries  "intentionally 
self-inflicted,''  or  caused  by  an  act  of  a  third  person  in- 
tended to  injure  the  workman  for  reasons  personal  to 
him. 

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


Kann,  Appellant,  v.  Kann. 

Contract9--Debt  a/nd  interest — Payment  on  account — AppKcO' 
tion  of  payment  to  principal — Case  for  jury. 
1.  Except  where  otherwise  agreed  a  payment  made  on  an  in- 


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584  KANN,  AppeUant,  v.  KAIW. 

Syllabua—SUtement  of  Facts.  [259  Fa. 

debtedness  consisting  of  principal  and  interest,  not  applied  by 
either  the  debtor  or  creditor,  will  be  applied  first  to  interest  due 
and  then  to  principal. 

2.  A  debtor  paying  money  to  his  creditor  has  the  primary  and 
paramount  right  to  direct  the  application  of  his  money  to  such 
items  or  demands  as  he  chooses,  provided  the  payment  is  a  volun- 
tary one. 

3.  While  a  debtor,  after  making  payments,  may  not  demand  their 
application  to  principal  as  against  interest,  yet  he  may  so  stipulate 
in  making  a  payment^  and  if  it  is  accepted  without  inmiediate  pro- 
test such  acceptance  will  be  tantamount  to  an  agreement  to  apply 
the  money  as  directed,  the  creditor  being  bound  accordingly.  After 
an  appropriation  has  been  made  by  the  debtor  and  expressly  or  im- 
pliedly assented  to  by  the  creditor,  the  law  will  not  interfere  on 
behalf  of  the  latter,  upon  equitable  or  other  grounds,  for  such  cir- 
cumstances constitute  a  contractual  situation,  and  courts  will  not 
set  aside  agreements  unless  they  are  without  consideration,  illegal, 
against  public  policy,  made  without  contractual  capacity,  or  in- 
duced by  fraud,  accident  or  mistake  of  fact. 

4.  Not  decided  whether  a  creditor,  when  partial  payment  is  made 
on  a  debt,  coupled  with  a  request  or  direction  to  apply  the  amount 
to  the  principal  rather  than  to  the  accrued  interest,  has  a  right  at 
once  to  refuse  so  to  do. 

5.  Defendant  was  indebted  to  plaintiff  and  made  two  payments, 
one  $4,000  and  the  other  $1,000,  on  account  When  defendant  paid 
plaintiff  the  latter  simi  he  explicitly  directed  in  writing  that  it 
should  be  applied  to  the  principal  and  in  the  same  letter  expressed 
the  wish  that  the  sum  of  $4,000,  previously  paid,  should  be  likewise 
applied.  Plaintiff  acknowledged  receipt  pf  the  $1,000,  noting  that 
it  was  to  be  appropriated  to  the  principal;  but  objected  to  a  like 
application  of  the  $4,000.  The  jury  found  specially  that  the  $4,000 
payment  had  been  properly  applied  by  plaintiff  to  interest,  but  that 
the  $1,000  had  been  correctly  applied  on  the  principal,  and  rendered 
a  general  verdict  on  that  basis  upon  which  judgment  was  Altered. 
Held,  no  error. 

Argued  Oct.  15, 1917.  Appeal,  No.  138,  Oct.  T.,  1917, 
by  plaintiff,  from  judgment  of  C.  P.  Allegheny  Co.,  July 
T.,  1915,  No.  435,  on  verdict  for  plaintiff  in  case  of  W.  L. 
Kann  v.  M.  M.  Kann.  Before  Brown,  C.  J.,  Mbstmzat, 
PoTTBB,  Stewart,  Moschziskbr,  Frazer  and  Walling, 
JJ.    Affirmed. 


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KANN,  AppeUant,  v.  KANN.  585 

1918.]  Verdict — Opinion  of  the  Court. 

Assumpsit  on  account  stated.  Before  Caepbntbb^  J 
The  facts  appear  by  the  opinion  of  the  Supreme  Court 
Verdict  for  plaintiff  generally  for  |1,845.95  with  spe 

cial  findings  that  the  |4,000  payment  was  properly  ap 

plied  on  interest  and  the  |1,000  payment  should  be  ap 

plied  on  principal.    Plaintiff  appealed. 

Errors  assigned  were  rulings  on  evidence,  answers  to 
points,  and  the  charge  of  the  court. 

Edward  Schreiner,  of  Schreiner  &  Loeffler,  for  appel- 
lant, cited :  Roberts'  App.,  92  Pa.  407;  Miller  v.  Leflore, 
32  Miss.  634;  Johnson  v.  Bobbins,  20  La.  Annual  669. 

Leonard  8.  Levin,  for  appellee. — ^A  debtor  may  appro- 
priate his  payments  as  he  sees  fit  at  the  time  he  makes 
them.  If  he  makes  no  appropriation  the  creditor  may 
make  it  on  one  or  more  of  several  obligations ;  if  neither 
the  debtor  nor  creditor  makes  an  appropriation,  then  the 
law  will  make  one  as  to  the  debts  oldest  in  point  of  time : 
Risher  v.  Risher,  194  Pa.  164;  Pardee  v.  Markle,  111  Pa. 
548 ;  Souder  v.  Schechterly,  91  Pa.  83 ;  Harmony  Cream- 
ery Co.  V.  Bickerton,  57  Pa.  Superior  Ct.  651;  Christ- 
man  V.  Martin,  7  Pa.  Superior  Ct.  568;  Logan  v.  Mason, 
6  W.  &  S.  9. 

While  the  cases  above  cited  do  not  involve  the  ques- 
tion of  principle  and  interest,  yet  they  have  to  do  with 
the  right  of  the  debtor  to  appropriate  payments  and  they 
indicate  the  trend  of  the  policy  of  the  law  in  this  State. 

Opinion  by  Mr.  Justice  Moschziskbe,  January  7, 
1918: 

a 

Appellant  states  the  following  "question  involved": 
"Can  a  debtor  in  making  payment  on  account  of  indebt- 
edness specifically  apply  the  payment  to  principal,  when 
the  interest  at  the  date  of  payment  exceeds  the  payment ; 
or  does  the  law  make  the  application  in  such  a  case  to 
interest,  so  as  to  prevent  any  application  by  the  debtor?'' 


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586  KANN,  AppeUant,  v.  KANN. 

Opinion  of  the  Court.  [259  Pa. 

Fully  to  caver  the  question  presented  by  the  record  be- 
fore us,  however,  this  statement  should  include  not  only 
the  fact  that  defendant  debtor  expressly  directed  the 
voluntary  payment  in  controversy  to  be  applied  on  prin- 
cipal, but  also  the  further  fact  that  plaintiff  creditor  ac- 
cepted the  money  on  this  understanding. 

As  a  result  of  the  rulings  of  the  court  below  upon  the 
law  relevant  to  the  point  at  issue,  the  plaintiff  recovered 
somewhat  less  than  his  full  claim,  and,  being  dissatisfied 
with  the  amount  of  the  verdict  and  judgment  entered 
thereon,  he  has  appealed.  Appellant  contends  that  a 
debtor  has  no  legal  right  to  direct  a  payment  made  by 
him  to  be  credited  on  principal,  when  the  interest  then 
due  exceeds  the  amount  of  the  payment;  hence  that, 
under  such  circumstances,  the  creditor  may  retain  the 
sum  paid  and  appropriate  it  to  interest,  notwithstand- 
ing a  different  application  may  have  been  directed  by  the 
former  and  at  the  time  expressly  or  impliedly  agreed  to 
by  the  latter. 

In  disposing  of  a  motion  for  a  new  trial,  the  court  be- 
low states :  "It  is  contended  that  the  law,  not  the  payor, 
makes  the  application,  and  that  defendant's  direction 
was  of  no  force  or  effect.  With  this conten- 
tion I  cannot  agree.     The  parties  were  of  full  age  and 

could  make  any  agreement  they  saw  fit ;   if  the 

payment  was  in  fact  made  on  account  of  the  [principal] 
debt,  and  if  with  that  knowledge  plaintiff  retained  the 
check,  he  cannot  now  apply  the  money  otherwise."  We 
concur  in  this  conclusion. 

Roberts'  Appeal,  92  Pa.  407,  421,  contains  dicta  which 
lends  some  support  to  appellant's  contention,  but  there 
is  no  ruling  in  that  case  which  controls  the  present  one. 
Miller  v.  Leflore,  32  Miss.  634,  635,  644,  and  Johnson  v. 
Bobbins,  20  La.  Annual  569,  570,  are  also  called  to  our 
attention  by  the  appellant ;  but  both  of  them  might  with 
greater  propriety  have  been  cited  by  the  appellee,  for  in 
neither  instance  did  the  debtor  give  any  direction  for 
a  special  appropriation  of  the  payments  there  under  con- 


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KANN,  Appellant,  v.  KANN.  587 

1918.]  Opinion  of  the  Court. 

sideration.  Moreover,  in  the  first  of  these  cases,  where 
one  suit  was  brought  on  several  notes,  upon  all  of  which 
interest  had  accrued,  it  was  held  that  undirected  pay- 
ments, made  by  the  debtor  to  the  creditor,  must  be  ap- 
plied, not  in  liquidation  of  the  accrued  interest  upon  all 
the  notes,  but,  "first  to  the  interest  accrued  on  the  note 
first  falling  due,  and  the  balance  of  such  payment  to  the 
principal  of  said  note,  and  so  on,  in  the  order  in  which 
the  notes  were  payable" ;  which  ruling  certainly  does  not 
help  the  present  appellant.  In  the  next  case  the  court 
states,  "Where  there  is  interest  due,  a  debtor  cannot, 
without  the  consent  of  the  creditor,  impute  to  the  reduc- 
tion of  the  principal  any  payment  he  may  make" ;  the 
plain  implication  being  that,  where  the  creditor  assents, 
the  rule  is  otherwise. 

Pindall  v.  Bank  of  Marietta,  37  Va.  481,  484,  and  Mil- 
ler V.  Trevilian,  2  Robinson's  Reports  (Va.)  1,  27,  cases 
cited  by  appellee,  both  rule  that  "a  debtor  owing  a  debt 
consisting  of  principal  and  interest,  and  making  a  par- 
tial payment,  has  a  right  to  direct  its  application  to  so 
much  of  the  principal,  in  exclusion  of  the  interest ;  and 
the  creditor,  if  he  receives  it,  is  bound  to  apply  it  accord- 
ingly" ;  finally,  the  last  of  these  cases  contains  an  inter- 
esting discussion,  beginning  at  page  28  of  the  report,  as  to 
the  effect  of  this  rule,  to  show  th^t  a  creditor  is  not 
harmed  by  its  application. 

The  following  generalizations  touching  the  question  be- 
fore us  are  furnished  by  30  Cyc.  At  p.  1249 :  "Except 
where  otherwise  agreed,  a  payment  made  on  an  indebted- 
ness consisting  of  principal  and  interest,  not  applied  by 
either  the  debtor  or  creditor,  will  be  applied  first  to  inter- 
est due  and  then  to  principal  [citing,  inter  alia,  Moore  v. 
Kiff,  78  Pa.  96;  Spires  v.  Hamot,  8  W.  &  8.  17;  Bell's 
App.,  4  Sadler  423]."  See  also  Bower  v.  Walker,  220 
Pa.  294,  297;  Buck  v.  Mutual  B.  &  L.  Assn.,  49  Pa.  Su- 
perior Ct.  128 ;  Com.  to  use  of  Bellas  v.  Vanderslice,  8 
S.  &  R.  452-458;  Penrose  v.  Hart,  1  Dallas  378.  At  p. 
1228:   "A  debtor  paying  money  to  his  creditor  has  the 


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588  KANN,  AppeUant,  v,  KANN. 

Opinion  of  the  Court.  [259  Pa. 

primary  and  paramount  right  to  direct  the  application 
of  hiis  money  to  such  items  or  demands  as  he  chooses 
[citing,  inter  alia,  Watt  &  Co.  v.  Hoch,  25  Pa.  411,  413; 
Harker  v.  Conrad,  12  S.  &  R.  301,  304],  provided  the  pay- 
ment is  a  voluntary  one  [see  Pa.  Co.  v.  Clausen  Brewing 
Co.,  3  Sadler  408] ;  for  example,  the  debtor  may  apply 
the  payment  to principal  to  the  exclusion  of  inter- 
est." At  p.  1231 :  "Where  a  debtor  directs  the  manner 
in  which  his  payment  is  to  be  applied,  the  creditor,  if  he 
accepts  the  payment,  must  apply  it  accordingly  [citing, 
inter  alia,  Smuller  v.  Union  Canal  Co.,  37  Pa.  68;  Mar- 
tin V.  Draher,  5  Watts  544,  545 ;  Jamison  v.  Collins,  11 
PhUadelphia  258,  MrrcHBLL,  J.]."  At  p.  1232  (notes)  : 
"If  the  debt  consists  of  both  principal  and  interest  and 
the  debtor  directs  the  payment  to  be  applied  cm  princi- 
pal, or  it  is  mutually  agreed  that  the  payment  shall  be  so 
applied,  the  creditor,  after  receiving  it,  cannot  apply  the 
payment  to  interest  [citing  Tooke  v.  Bonds,  29  Tex.  419, 
427,  428;  Pindall  v.  Marietta  Bank,  10  Leigh  (Va.) 
481]."  Another  note  at  p.  1232  states  that  payment  by 
draft  is  as  good  as  money  to  bind  the  creditor  to  the 
payor's  appropriation  (citing  Moorehead  v.  West 
Branch  Bank,  3  W.  &  S.  550),  and  a  further  note  on  the 
same  page  says  that  "a  refusal  to  return  drafts  after  ex- 
plicit direction  as  to  their  application  will  be  regarded 
as  an  election  to  accept  them  for  the  purpose  for  which 
they  were  offered,"  citing  Christman  v.  Martin,  7  Pa. 
Superior  Ct.  568.  At  p.  1240 :  "Payments  by  the  debtor 
will  be  applied  according  to  the  intention  of  the  parties 
where  that  can  be  determined  with  reasonable  certainty 
[citing,  inter  alia,' Stewart  v.  Keith,  12  Pa.  238;  see  also 
Smith  V.  Mould,  149  N.  Y.  Supp.  552,  553] ;  and  the 
court  will  not  generally  exercise  the  power  of  appropri- 
ating payments  when  an  appropriation  has  already  been 
made  by  either  debtor  or  creditor  [citing,  inter  alia, 
Watt  &  Co.  V.  Hoch,  25  Pa.  411 ;  Selfridge  v.  Northamp- 
ton Bank,  8  W.  &  S.  320]." 
In  general,  the  court  will  make  the  application  only  in 


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KANN,  Appellant,  v.  KANN.  589 

1918.]  Opinion  of  the  Court. 

the  event  that  both  parties  have  failed  to  do  so  (Feldman 
V.  Gamble,  26  N.  J.  Eq.  494;  Seymour  v.  Marvin,  11 
Barb.  80;  Hilton  v.  Sims,  45  Ga.  565) ;  and  an  agree- 
ment as  to  the  appropriation  controls :  Shaw  v.  Pratt, 
39  Mass.  (22  Pick.)  305,  308;  Larkin  v.  Watt,  32  S.  W. 
(Texas)  552,  555;  Genin  v.  IngersoU,  11  W.  Va.  549, 
559,  560.  Where  the  parties,  or  either  of  them,  have 
rightfully  applied  a  payment,  it  is  final,  and  the  law  will 
not  interfere  therewith:  Mercer  v.  Tift,  79  Ga.  174; 
Pond  &  Hasey  Co.  v.  O'Connor,  70  Minn.  266,  270;  Self- 
ridge  V.  Northampton  Bank,  8  W.  &  S.  320.  Ordinarily, 
interest  is  considei*ed  as  incidental  to  or  forming  an  in- 
tegral part  of  the  principal  debt  upon  which  it  accrues, 
and  not  as  a  separate  demand  (22  Cyc.  1570,  1571;  Os- 
terling  v.  Allegheny  Trust  Co.,  decided  at  this  term) ; 
but,  when  a  payment  is  made  on  account  of  the  debt, 
there  is  nothing  to  prevent  the  parties  from  mutually 
treating  interest  as  a  demand  separate  and  apart  from 
the  principal,  so  as  to  appropriate  the  payment  to  the 
latter  rather  than  the  former,  if  they  see  fit.  When  this 
course  is  pursued,  the  rules  laid  down  in  the  authorities 
dealing  with  the  application  of  payments  as  between 
separate  debts,  have  relevancy;  hence  their  notation 
here.  While  it  may  be  that  none  of  the  cases  cited  ac- 
tually governs  this  one,  and  that,  perhaps,  some  of  the 
broad  principles  to  which  we  call  attention  may  have  no 
direct  bearing  on  the  exact  point  now  before  us,  never- 
theless they  all  shed  more  or  less  light  upon  our  present 
inquiry. 

The  question  raised  by  the  record  at  bar  has  not  been 
directly  passed  upon  in  any  Pennsylvania  case  which 
our  research  has  disclosed,  and  there  are  but  few  re- 
ported decisions  upon  the  precise  point  in  other  jurisdic- 
tions. From  an  examination  of  the  cases  already  men- 
tioned it  appears  that,  while  a  debtor,  after  making  pay- 
ments, may  not  demand  their  application  to  principal 
as  against  interest,  yet  he  may  so  stipulate  in  making  a 
payment,  and,  if  it  is  accepted  without  immediate  pro- 


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590  KANN,  Appellant,  v,  KANN. 

Opinion  of  the  Court.  [269  Pa. 

test,  such  acceptance  will  be  tantamount  to  an  agree- 
ment to  apply  the  money  as  directed,  the  creditor  being 
bound  accordingly.  The  principle  that,  after  an  appro- 
priation has  been  made  by  the  debtor  and  expressly  or 
impliedly  assented  to  by  the  creditor,  the  law  will  not 
interfere  on  behalf  of  the  latter,  upon  equitable  or  other 
grounds,  has  been  frequently  announced  (Stewart  v. 
Keith,  12  Pa.  238 ;  Martin  v.  Draher,  5  Watts  544 ;  Pearl 
V.  Clarke,  2  Pa.  350) ;  for  such  circumstances  constitute 
a  contractual  situation,  and  courts  will  not  set  aside 
agreements  unless  they  are  without  consideration,  il- 
legal, against  public  policy,  made  without  contractual 
capacity,  or  induced  by  fraud,  accident  or  mistake  of 
fact.  The  present  case  does  not  fall  under  any  of  these 
classifications,  and  the  alleged  inequity  of  holding  this 
creditor  to  the  application  which,  when  the  payment  in 
question  was  made,  he  at  least  impliedly  agreed  to,  is  not 
so  strong  as  to  move  a  chancellor  to  avoid  the  resulting 
contract  and  release  plaintiff  from  its  effect;  and  the 
learned  court  below  did  not  err  when  it  so  ruled. 

It  may  be  well  here  to  state  that  the  trial  of  this  case 
involved  a  controversy  as  to  the  proper  application  of 
two  different  funds,  one  of  |4,000  and  the  other  of  |1,000. 
When  defendant  paid  plaintiff  the  latter  sum,  he  explic- 
itly directed  in  writing  that  it  should  be  applied  on  prin- 
cipal, and,  in  the  same  letter,  he  expressed  the  wish  that 
the  sum  of  |4,000,  previously  paid,  should  be  likewise 
applied.  Plaintiff  acknowledged  receipt  of  the  |1,000, 
noting  that  it  was  to  be  appropriated  to  principal,  and, 
in  his  letter  so  doing,  he  discussed  defendant's  sugges- 
tion for  a  like  application  of  the  f4,000,  saying  in  that 
connection,  "What  I  can't  see  at  the  present  time,  with- 
out giving  it  much  consideration,  is  how  you  can  apply 
a  payment  on  principal,  as  long  as  the  interest  is  run- 
ning against  the  debt ;  interest  should  be  paid  before  the 
principal."  The  verdict  of  the  jury,  which  is  in  the  na- 
ture of  special  findings,  correctly  determined  that  the 
f4,000  fund  had  been  properly  applied  to  interest,  but 


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KANN,  Appellant,  v.  KANN.  591 

1918.]  Opinion  of  the  Court, 

that,  under  the  circumstances,  the  f  1,000  (being  the  pay- 
ment now  in  controversy)  must  be  applied  on  principal. 
They  also  found  that  the  original  contract  between  the 
parties  required  defendant  to  pay  plaintiff  interest  at 
the  rate  of  five  per  cent.  These  findings  are  justified  by 
the  evidence  at  bar  and  they  breach  no  established  rules 
of  law ;  thereunder,  since  the  original  contract  expressly 
required  the  payment  of  interest,  no  issue  arises  on  the 
question  discussed  in  some  of  the  cases,  upon  the  general 
subject  now  before  us,  concerning  the  right,  in  the  ab- 
sence of  such  an  agreement,  subsequently  to  recover  ac- 
crued interest  on  a  principal  sum  which  had  previously 
been  paid  off  (see  22  Cyc.  1572-4 ;  15  R.  C.  L.  11, 14, 15)  j 
and,  again,  since  the  evidence  shows,  and  the  jury  in 
effect  found,  a  contract  on  the  part  of  plaintiff  to  appro- 
priate the  |1,000  to  principal,  the  abstract  question  of 
the  right  of  a  creditor,  when  partial  payment  is  made  on 
a  debt,  coupled  with  a  request  or  direction  to  apply  the 
amount  to  principal  rather  than  accrued  interest,  at 
once  to  refuse  so  to  do,  is  not  before  us  for  determina- 
tion. On  the  facts  here  disclosed,  what  we  do  determine 
is  that,  at  the  time  of  the  payment  in  question  the  de- 
fendant having  explicitly  directed  its  application  to 
principal,  and  the  plaintiff  having  accepted  the  money 
without  declining  to  abide  by  this  direction,  the  jury 
were  justified  in  finding  it  had  been  complied  with  and 
that  the  appropriation  thus  made  created  a  contractual 
relation  or  situation  which  subsequently  could  not  be 
changed  by  one  of  the  parties  without  the  consent  of  the 
other ;  hence,  as  expressed  in  the  verdict,  the  |1,000  must 
be  applied  on  principal. 

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


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592        COMMONWEALTH  v.  WEBER,  Appellant. 

Syllabus.  [259  Pa. 

Commonwealth  v.  Weber,  Appellant 

Criminal  law — Statute  of  limitations — Misdemeanors — Plight — 
Betum — Concealment  within  State — Act  of  March  SI,  1860,  P.  L, 
W'iSO,  Sec.  77^*'U8ual  residenf^-Words  and  phrases— ToUing 
of  statute — Seduction — Promise  to  marry — Evidence — Sufficiency 
— Charge — Case  for  jury, 

1.  One  who  is  charged  with  a  crime  committed  in  a  rural  dis- 
trict and  flees  from  arrest  to  another  state  but  subsequently  takes 
up  his  residence  in  a  large  city  within  the  State  and  lives  under  his 
proper  name,  may  be  denied  protection  of  the  statute  of  limitations 
by  disavowing  his  identity  at  times  for  the  purpose  of  evading  ar- 
rest 

2.  The  words  "usual  residence"  within  the  meaning  of  the  Act 
of  March  31,  1860,  P.  L.  427-450,  Section  77,  requiring  that  all  in- 
dictments for  misdemeanors  shall  be  brought  within  two  years, 
provided  "that  if  the  person  against  whom  the  indictment  shall  be 
brought  or  exhibited,  shall  not  have  been  an  inhabitant  of  this 
State,  or  usual  resident  therein,  during  the  said  respective  terms 

for  which  he  shall  be  subject  and  liable  to  prosecution such 

indictment  shall  and  may  be  brought against  such  person  at 

any  time  within  a  similar  space  of  time  during  which  he  shall  be 
an  inhabitant  of  or,  usually  resident  within  the  State,"  do  not 
refer  only  to  defendant's  place  of  residence  but  also  to  his  manner 
of  residence;  "usual"  when  used  in  this  sense  means  "customary" 
or  "common";  to  be  a  ^Sisual  resident"  one  must  conduct  himself 
in  accordance  with  his  customary  mode  of  life. 

3.  One  might  commit  an  offense  and  move  to  another  part  of  the 
State  in  an  open  manner,  or  even  go  from  the  State,  if  in  military 
service,  and  not  be  barred  from  claiming  the  benefit  of  the  statute 
of  limitations,  but  this  is  not  so  where  the  offender  flees  from  jus- 
tice and  subsequently  by  fraud  and  concealment,  succeeds  in  avoid- 
ing arrest. 

4.  Where  a  person  indicted  in  1916  for  the  crime  of  seduction 
committed  in  1910,  pleaded  the  statute  of  limitation,  it  api)eared 
that  defendant  left  the  State  on  learning  that  a  warrant  had  been 
issued  for  his  arrest;  that  no  accurate  account  of  his  whereabouts 
thereafter  appeared  until  1913,  when  he  took  up  his  residence  in 
Pittsburgh  where  he  continued  to  reside  until  arrested ;  that  since 
1913  he  worked  at  his  trade  as  carpenter  in  different  parts  of  that 
city,  used  his  proper  name  there  and  received  mail  from  the  gen- 
eral delivery  and  at  his  various  boarding  houses,  and  paid  taxes 


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COMMONWEALTH  v.  WEBER,  Appellant.        593 
1918.]  Syllabus— Statement  of  Facts, 

and  Yoted  in  the  district  where  he  resided;  that  while  a  resident 
of  Pittsburgh  he  frequently  visited  the  rural  district  in  which  the 
crime  was  committed  but  on  such  occasions  he  denied  his  identity 
and  used  an  assumed  name,  and  that  when  arrested  he  denied  his 
identity.  Held,  there  was  sufficient  evidence  to  wrrant  a  finding 
that  defendant  was  not  a  "usual  resident"  of  the  State  and  that  the 
statute  of  limitations  should  therefore  be  tolled,  and  the  case  was 
for  the  jury  and  a  conviction  in  such  case  will  be  sustained. 

5.  If  defendant  had  moved  openly  to  Pittsburgh  immediately 
after  the  commission  of  the  crime  for  the  bona  fide  purpose  of  tak- 
ing up  his  residence  there,  he  would  have  been  a  "usual  resident" 
within  the  meaning  of  the  statute. 

G.  Circimistantial  evidence  of  an  engagement  of  marriage  is  to 
be  found  in  the  proof  of  such  facts  as  usually  accompany  that  re- 
lation; among  them  may  be  mentioned  letters,  presents,  social  at- 
tentions of  various  kinds,  visiting  together  in  company,  prepara- 
tions for  housekeeping,  and  the  like. 

7.  In  a  prosecution  for  seduction,  evidence  that  defendant  had 
been  paying  constant  attention  to  prosecutrix  for  practically  one 
year,  that  they  became  engaged  to  be  married  about  three  months 
after  they  first  met,  at  which  time  he  gave  her  a  ring;  that  de- 
fendant called  on  her  at  least  once  a  week  for  several  months,  ac- 
companied her  in  public,  and  on  one  occasion  repaired  the  engage- 
ment ring,  sufficiently  corroborated  statement  of  prosecutrix  that 
defendant  promised  to  marry  her. 

Argued  Oct.  15,  1917.  Appeal,  No.  143,  Oct.  T.,  1917, 
by  defendant,  from  judgment  of  Superior  Court,  April 
T.,  1917,  No.  151,  affirming  judgment  of  Q.  S.  Allegheny 
Co.,  Sept.  Sessions,  1916,  No.  739,  on  verdict  of  guilty  of 
seduction  in  case  of  Commonwealth  v.  Charles  Weber. 
Before  Brown,  C.  J.,  Mbstrbzat,  Potter,  Stewart, 
MoscHziSKER,  Frazer  and  Walling,  J  J.    Affirmed. 

Appeal  from  Superior  Court.  Opinion  by  Wil- 
liams, J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court 
and  in  Com.  v.  Weber,  67  Pa.  Superior  Ct.  497. 

The  Superior  Court  affirmed  the  judgment  of  the  Quar- 
ter Sessions  Court    Defendant  appealed, 


Vol,  cclix— 38 

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594        COMMONWEALTH  r.  WEBER,  AppeUant. 

Assignment  of  Error — Opinion  of  the  Court    [259  Pa. 
Error  assigned,  among  others,  was  the  judgment  of 
the  Superior  Court. 

George  H.  Quaill,  for  appellant. — The  evidence  was 
not  sufficient  to  sustain  a  conviction  of  seduction :  Bice 
V.  Commonwealth,  102  Pa.  408. 

Defendant  was  an  "inhabitant''  and  "usual  resident" 
within  the  meaning  of  the  Act  of  1860 :  Graham  v.  The 
Commonwealth,  51  Pa.  255;  Blackman  v.  Common- 
wealth, 51  Pa.  255 ;  Blackman  v.  Commcm wealth,  124  Pa. 
578. 

R.  H.  Jackson,  District  Attorney,  with  him  E.  R. 
Jacksofi,  Assistant  District  Attorney,  J.  D.  Hern  and 
Denis  JE.  Behen,  for  appellee. — The  evidence  amply  cor- 
roborated the  promise  of  marriage:  Bice  v.  Common- 
wealth, 100  Pa.  28. 

Defendant  was  not  a  "usual  resident"  of  the  State: 
Commonwealth  v.  Blackburn,  3  Pa.  C.  C.  464;  Black- 
man  V.  Commonwealth,  124  Pa.  578 ;  Commonwealth  v. 
Wilson,  18  Pa.  Dist.  Beports  38;  Commonwealth  v. 
Smith,  19  Pa.  C.  C.  397;  Commonwealth  v.  Bates,  1  Pa. 
Superior  Ct.  223. 

Opinion  by  Mr.  Justice  Frazer,  January  7, 1918 : 
Defendant  appeals  from  a  judgment  of  the  Superior 
Court  (67  Pa.  Superior  Ct.  497)  affirming  the  judgment 
of  the  Court  of  Quarter  Sessions  <rf  Allegheny  County  in 
which  defendant  was  indicted  and  convicted  for  seduc- 
tion and  fornication  and  bastardy.  The  principal  ques- 
tion for  determination  is  whether  or  not  defendant  was 
an  inhabitant  or  usual  resident  of  this  Commonwealth 
for  a  period  of  two  years  previous  to  his  indictment 
within  the  meaning  of  Section  77  of  the  Act  <rf  March  31, 
1860,  P.  L.  427-450,  requiring  all  indictments  for  mis- 
demeanors to  be  brought  within  two  years,  provided 
^'that  if  the  person  against  whom  such  indictment  shall 
be  brought  or  exhibited,  shall  not  have  been  an  inbabit* 


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COMMONWEALTH  v,  WEBER,  AppeUant.        595 
1918.]  Opinion  of  the  Court 

ant  of  this  State,  or  usual  resident  therein,  during  the 
said  respective  terms  for  which  he  shall  be  subject  and 
liable  to  prosecution  as  aforesaid,  then  such  indictment 
shall  and  may  be  brought  or  exhibited  against  such  per- 
son at  any  time  within  a  similar  space  of  time  during 
which  he  shall  be  an  inhabitant  of  or,  usually  resident 
within  this  State/' 

The  offense  was  alleged  to  have  been  committed  in 
West  Deer  Township,  Allegheny  County,  in  July,  1910, 
at  which  time  defendant  was  a  resident  of  that  township. 
An  information  was  sworn  to  April  7,  1911,  and  a  war- 
rant issued,  but  owing  to  defendant's  absence  was  not 
executed.  An  alias  warrant  issued  in  April,  1912,  like- 
wise could  not  be  served,  and  on  July  6, 1916,  defendant 
was  arrested  on  a  pluries  warrant  issued  in  February, 
1913,  and  indicted  September  22,  1916.  As  to  the  main 
facts  there  is  no  controversy.  Defendant  left  home  on 
learning  a  warrant  had  been  issued  for  his  arrest,  going 
to  Youngstown,  Ohio,  and  no  accurate  account  of  his 
whereabouts  thereafter  appears  until  November,  1913, 
when  he  took  up  his  residence  in  Pittsburgh  and  con- 
tinued to  reside  in  that  city  until  arrested.  For  a  time 
he  had  quarters  at  a  small  hotel,  subsequently  removing 
to  a  boarding  house,  and  has  continuously  since  1913 
lived  in  boarding  houses  in  various  parts  of  the  city, 
and  according  to  his  testimony  has  been  outside  the 
County  of  Allegheny  but  twice  in  three  years.  During 
that  period  he  worked  at  his  trade  as  a  carpenter,  being 
employed  in  that  capacity  for  a  time  in  a  department 
store  in  Pittsburgh,  and  at  other  times  in  diflFerent  parts 
of  the  city.  While  so  employed  he  appeared  in  public, 
lived  under  his  proper  name,  received  mail  through  the 
general  delivery  at  the  post  oflBce  and  at  his  various 
boarding  houses,  paid  taxes  and  voted  in  the  district 
where  he  resided.  It  is  in  fact  conceded  he  was  an  in- 
habitant of  the  State  for  a  period  sufficient  to  bring  him 
within  the  protection  of  the  statute  of  limitations.  The 
question  is,  was  he  also  a  "usual  resident"  of  the  State 


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596        COMMONWEALTH  v.  WEBER,  Appellant. 

Opinion  of  the  Court.  [269  Pa. 

within  the  meaning  of  that  expression  as  used  in  the  act, 
or  was  the  statute  tolled  by  reason  of  various  acts  of  con- 
cealment committed  by  defendant  during  the  two-year 
period  preceding  his  indictment. 

While  a  resident  in  Pittsburgh,  defendant  *^oj0f  and  on" 
usually  "over  Sunday''  visited  his  old  home  in  West  Deer 
Township,  where  he  owned  an  interest  in  a  farm.  On 
these  occasions  attempts  were  made  to  arrest  him,  but 
upon  inquiry  his  relatives  stated  they  were  unable  to  give 
information  as  to  where  he  could  be  found.  On  several 
occasions  he  hired  a  horse  and  buggy  at  a  livery  stable 
in  a  borough  adjacent  to  the  City  of  Pittsburgh,  to  drive 
to  West  Deer  Township  and  attempted  to  conceal  his 
identity  by  using  an  assumed  name,  and  denying  he  was 
Charles  Weber  upon  being  recognized  by  the  livery  stable 
keeper.  He  also  denied  his  identity  when  arrested.  The 
trial  judge  charged  that  if  defendant  lived  ill  Pittsburgh 
under  his  proper  name  without  attempting  to  disguise  or 
conceal  his  identity  he  must  be  acquitted ;  if,  however, 
he  endeavored  to  conceal  his  identity  be  was  not  a  usual 
resident  of  the  State  within  the  meaning  of  the  statute. 

It  thus  appears  the  exact  question  raised  is  whether 
one  charged  with  crime  committed  in  a  rural  district 
who  flees  from  arrest,  but  subsequently  takes  up  his  resi- 
dence in  a  large  city  within  the  State,  where  he  lives 
under  his  proper  name,  can  be  denied  the  protection  of 
the  statute  by  disavowing  his  identity  at  times  for  the 
purpose  of  avoiding  arrest. 

In  Graham  v.  Commonwealth,  51  Pa.  255,  it  was 
stated  the  provisb  to  the  section  of  the  act  in  question 
was  meant  for  persons  escaping  and  absenting  them- 
selves to  avoid  punishment  until  the  lapse  of  time  might 
enable  them  to  return  with  impunity.  In  Blackman  v. 
Commonwealth,  124  Pa.  578,  the  trial  judge  charged  that 
if  the  jury  found  defendant  left  the  county  for  the  pur- 
pose of  avoiding  arrest  and  remained  away  under  cir- 
cumstances which  baffled  all  efforts  made  to  find  him,  he 
might  be  convicted  regardless  of  whether  his  place  of 


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COMMONWEALTH  v.  WEBER,  Appellant.        597 
1018.]  Opiuion  of  the  Court 

coucealuieut  was  within  or  without  the  State.  In  that 
case  no  evidence  having  been  offered  on  behalf  of  defend- 
ant it  was  held  the  Commonwealth  made  out  a  prima 
facie  case  by  proving  defendant  had  fled  from  his  usual 
place  of  residence  within  the  State  for  the  purpose  of 
avoiding  arrest  and  could  not  be  found  within  the  State, 
hence  proof  that  defendant  concealed  himself  outside  the 
State  was  unnecessary.  The  court  said  (page  583) :  "If 
the  defendant  was  hiding  within  the  State  instead  of  out- 
side of  it,  it  was  a  fact  peculiarly  within  his  own  knowl- 
edge, and  he  was  a  competent  witness  to  prove  it.  Had 
he  done  so,  he  would  have  been  in  a  position  to  raise  the 
question,  whether  a  fugitive  from  justice  who  effectually 
secretes  himself  within  the  State,  and  thus  bafl9es  all  at- 
tempts to  arrest  him  until  the  statute  has  run,  can  then 
emerge  from  his  hiding  place  and  successfully  plead  the 
statute  of  limitations.  We  will  decide  such  question 
when  it  is  fairly  raised.  The  language  of  the  learned 
judge  below  upon  this  point,  whether  accurate  or  not, 
did  the  defendant  no  harm." 

The  question  here  involved  was  disposed  of  by  the  Su- 
perior Court  in  the  following  language:  "The  words 
'usual  resident'  do  not  refer  to  defendant's  place  of  resi- 
dence, but  to  his  manner  of  residence.  'Usual,'  when 
used  in  this  sense,  means  'customary'  or  'common' :  Gra- 
ham V.  Com.,  supra,  at  page  258.  To  be  an  'usual  resi- 
dent,' therefore,  one  must  conduct  himself  in  accordance 
with  his  customary  mode  of  life.  One  might  commit  an 
offense  and  move  to  another  part  of  the  State  in  an  open 
manner,  or  even  go  from  the  State,  if  in  military  service, 
and  not  be  barred  from  claiming  the  benefit  of  the  stat- 
ute: Graham  v.  Com.,  supra;  but  this  is  not  so  where 
the  offender  flees  from  justice  and,  subsequently,  by 
fraud  and  concealment,  succeeds  in  avoiding  arrest. 
Unless  we  so  construe  the  act  the  words  'usual  resident' 
become  meaningless.  If  the  offender  lives  outside  of  the 
State  he  is  a  nonresident,  and  if  he  remains  in  hiding  or 
concealment  within  the  State  he  is  an  'inhabitant,'  but 


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5Dg        CO:\DIOXWEALTH  v,  WEBER,  Appt4lant. 

Opinion  of  the  Court.  [259  Pa. 

not  an  'usual  resideut.'     The  question  is  primarily  one 
of  fact,  and  was  properly  submitted  to  the  jury." 

While  it  must  be  conceded  the  acts  of  concealment  in 
this  case  were  not  numerous,  they  were  committed  at 
times  and  places  when  danger  of  apprehension  was 
greatest,  which  were  when  defendant  visited  his  former 
residence  in  West  Deer  Township.  Had  he  removed 
openly  to  Pittsburgh  for  the  bona  fide  purpose  of  taking 
up  his  residence  there  a  different  situation  would  be  pre- 
sented. His  original  departure  from  the  State  was  not 
to  take  up  a  bona  fide  residence  elsewhere  but  for  the 
purpose  of  avoiding  arrest.  Such  acts  are  not  consistent 
with  those  of  a  "usual  resident"  of  the  State,  and  one 
who  thus  actively  takes  steps  to  avoid  arrest  has  no  just 
cause  for  complaint  when  the  jury  is  permitted  to  infer 
from  such  circumstances  that  he  was  not  a  "usual  resi- 
dent" within  the  meaning  of  the  statute  of  limitations. 

The  remaining  question  is  the  sufficiency  of  the  evi- 
dence to  corroborate  the  prosecutrix's  testimony  con- 
cerning the  promise  of  marriage,  as  required  by  Section 
41  of  the  Act  of  March  31, 1860,  P.  L.  427-440.  Defend- 
ant had  been  paying  constant  attention  to  prosecutrix 
for  practically  one  year  and  they  became  engaged  to  be 
married  about  three  months  after  they  first  met,  at  which 
time  he  gave  her  a  ring.  The  principal  evidence  relied 
upon  to  corroborate  her  testimony  as  to  the  promise  of  . 
marriage  was  the  fact  that  she  wore  the  ring  given  her 
by  defendant,  that  defendant  called  on  her  at  least  once 
a  week  for  several  months,  took  her  to  church  and  other 
places,  and  on  one  occasion  repaired  the  engagement 
ring.  Defendant  contends  this  was  not  sufficient  evi- 
dence of  corroboration  to  submit  to  the  jury,  and  relies 
upon  the  case  of  Rice  v.  Commonwealth,  100  Pa.  28,  and 
the  same  case  reported  on  retrial  in  102  Pa.  408.  There 
it  appears  from  the  opinion  of  this  court  in  100  Pa.  28, 
page  32,  that  "The  attentions  from  which  the  jury  were 
permitted  to  infer  a  prcmiise  of  marriage  were  of  an 
equivocal  character.    The  plaintiff  in  error  had  been  in 


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COMMONWEALTH  v.  WEBER,  Appellant.        599 
1918.]  Opinion  of  the  Court. 

the  house  of  the  proisecutrix  but  four  times,  according  to 
her  own  statement  and  that  of  her  mother,  and  then  only 
for  a  short  time.  He  met  her  out  in  the  evenings,  some- 
times at  church,  walked  home  with  her,  and  left  her  at 
the  gate.  This*  is  not  the  kind  of  intercourse  that  usu- 
ally takes  place  between  persons  engaged  to  be  married. 
It  may  tend  to  matrimony,  but  is  quite  as  likely  to  lead 
to  something  else.  Circumstantial  evidence  of  an  en- 
gagement of  marriage  is  to  be  found  in  the  proof  of  such 
facts  as  usually  accompany  that  relation.  Among  them 
may  be  mentioned  letters,  presents,  social  attentions  of 
various  kinds,  visiting  together  in  company,  prepara- 
tions for  housekeeping,  and  the  like.  These  and  similar 
circumstances,  especially  when  the  attentions  are  exclu- 
sive and  continue  a  long  time,  may  well  justify  a  jury  in 
finding  a  promise  of  marriage." 

On  the  second  trial  of  the  case  evidence  submitted  by 
the  Commonwealth  was  practically  the  same  as  on  the 
former  trial  and  it  was  h^ld,  reversing  the  judgment  of 
the  court  below,  that  the  evidence  was  not  sufficient  to 
submit  to  the  jury  on  the  question  of  corroboration.  In 
the  present  case  the  proof  was  more  substantial  than  was 
that  in  Rice  v.  Commonwealth,  and  sufficiently  corrobo- 
rated prosecutrix,  within  the  rule  therein  stated,  to  war- 
rant its  submission  to  the  jury. 

The  judgment  is  affirmed. 


Dewar  v.  Carson  et  al.,  Appellants. 

Deeda — Btdlding  restrictions — Building  line — Covenants  —  Con^ 
struction — Intention — Restricted  space  —  Lowering  grade  —  Erec- 
Hon  of  poles — Laying  of  street  railway  trades — Bill  in  equity — In- 
junction. 

1.  While  building  restrictions  are  enforceable,  they  are  not  fav- 
ored by  the  law,  and  covenants  relating  to  them  are  not  to  be  ex- 
tended by  implication. 

2.  Words  contained  in  a  building  restriction  in  a  deed  are  to  be 
interpreted  in  the  light  of  the  manifest  object  or  purpose  of  the 


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600  DEWAR  V.  CARSON  et  al.,  Appellafats. 

Syllabus — ^Arguments.  [259  Pa, 

parties  in  using  them.  The  meaning  and  extent  of  the  building 
restrictions  which  were  within  the  contemplation  of  the  parties  at 
the  time  it  was  imposed  must  prevail. 

8.  Where  the  deeds  to  a  number  of  lots  abutting  on  a  street  in  a 
residential  district  provide  that  ^'no  dwelling  house  or  other  build- 
ing of  any  kind  shall  ever  be  erected  or  placed  on  said  lot  within 
twenty  feet"  of  the  street  and  that  ^*a  space  of  twenty  feet  shaU  al- 
ways be  open  and  clear  of  buildings  or  parts  of  buildings  whatso- 
ever" and  the  owners  by  a  supplemental  agreement  duly  recorded, 
increase  the  space  to  forty  feet  and  covenant  with  each  other  **not 
to  build  or  erect  or  suffer  to  be  built  or  erected  a  building  of  any 
character  whatever"  in  such  space,  a  street  railway  company  which 
has  purchased  two  of  the  lots  will  be  enjoined  from  lowering  the 
grade  of  its  lots  within  the  restricted  space  and  erecting  poles  and 
laying  tracks  thereon  for  a  loop,  on  which  street  cars  of  large  di- 
mensions would  pass  or  stand  during  any  hour  of  the  day  or  night. 

Argued  Oct  16, 1917.  Appeal,  No.  147,  Oct.  T.,  1917, 
by  defendants,  from  judgment  of  Superior  Court,  April 
T.,  1917,  No.  195,  reversing  decree  of  C,  P.  Allegheny 
Co.,  Oct.  T.,  1916,  No.  1733,  dismissing  bill  in  equity  for 
injunction  in  case  of  John  Dewar  v.  W.  B.  Carson, 
Pittsbui*gli  Railways  Company,  The  Federal  Street  & 
Pleasant  Valley  Passenger  Railway  Company,  and 
George  R.  Bothwell  and  John  Carson,  Partners,  trading 
as  Bothwell  &  Carson.  Before  Bbown,  C.  J.,  Potter, 
MoscHZiSKBR,  Prazbb  and  Walling,  JJ.    Affirmed. 

Appeal  from  the  Superior  Court.  Before  Oblady, 
P.J. 

The  facts  appear  by  the  opinion  of  the  Supreme  Court 
and  in  67  Pa.  Superior  Ct.  527. 

The  Superior  Court  reversed  the  decree  of  the  lower 
court  dismissing  the  bill.     Defendants  appealed. 

Error  assigned,  among  others,  was  the  decree  of  the 
Superior  Court. 

Edwin  W.  Smith,  with  him  Reed,  Smith,  Shaw  d  Beai, 
for  appellant. — Building  restrictions  should  not  be  ex- 
tended by  implication :  Crofton  v.  St.  Clement's  Church, 


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DEWAR  V.  CARSON  et  al.,  Appellants.  601 

1918.]  Arguments — Opinion  of  the  Court. 

208  Pa.  209;  McCloskey  v.  Kirk,  243  Pa.  319;  St,  An- 
drew's Lutheran  Church's  App.,  67  Pa.  512 ;  Gilmore  v. 
Times  Publishing  Co.,  18  Pa.  Superior  Ct.  363;  Landell 
V.  Hamilton,  175  Pa.  327 ;  Asbury  v.  Carroll,  54  Pa.  Su- 
perior Ct.  97;  Nowell  v.  Boston  Academy,  130  Mass. 
209;  Van  Banman  v.  Gallagher,  182  Pa.  277;  Appeal  of 
State  Society  of  Cincinnati,  154  Pa.  621. 

M.  W.  Achesorty  Jr.,  of  Sterrett  <&  Acheson,  for  appel- 
lee.— The  purpose  of  the  building  restriction  in  question 
was  to  preserve  the  residential  district  of  the  parties 
from  the  intrusion  of  business:  Landell  v.  Hamilton, 
175  Pa.  327;  Prendergast  v.  Walls,  257  Pa.  547. 

The  permanent  putting  together  of  materials  on  the 
land  for  any  use  creates  a  "building" :  The  Long  Eaton 
Recreation  Grounds  Co.  v.  Midland  Ry.  Co.,  2  Law  Re- 
ports K.  B.  Div.  574 ;  Luhman  v.  New  York  W.  &  B.  Ry., 
142  N.  Y.  S.  860;  Clement's  Administrator  v.  Putnam, 
35  Atl.  Repr.  181;  McGillick  v.  Hasley,  16  Pa.  Dist.  Re- 
ports 44 ;  Mecca  Realty  Co.  v.  Kellogg  Co.,  85  Misc.  ( N. 
Y.)  598;  Wright  v.  Evans,  2  Abbotts  Practice  Reports 
N.  S.308;  Swaseyv.  Shasta  County,  141  Cal.  392;  Penn- 
sylvania Steel  Co.  V.  Potts  Salt  &  Lumber  Co.  et  al.,  63 
Fed.  IL 

Opinion  by  Mr.  Chief  Justice  Brown,  January  7, 
1918: 

John  Dewar  and  the  Pittsburgh  Railways  Company 
are  the  owners  of  adjoining  lots  situated  on  the  north 
side  of  California  avenue,  in  the  City  of  Pittsburgh.  The 
frontage  of  the  Dewar  ground  is  one  hundred  and  fifty 
feet  and  that  of  the  railways  company  one  hundred  feet. 
The  properties  extend  one  hundred  and  forty  feet  north- 
ward to  an  alley.  They  form  part  of  a  duly  recorded 
plan  of  lots,  and  the  title  to  each  of  them  is  subject  to  the 
following  covenant  and  condition  running  with  the  land, 
as  part  of  the  consideration  therefor:  "The  above  de- 
scribed lots  of  ground  are  conveyed  by  the  party  of  the 


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602  DEWAR  v.  CARSON  et  al.,  Appellants. 

Opinion  of  the  Court.  [259  Pa. 

first  part,  and  purchased  and  accepted  by  the  party  of 
the  second  part,  for  himself,  his  heirs  and  assigns,  sub- 
ject to  the  covenant  and  condition  running  with  the  land, 
and  part  of  the  consideration  hereof,  that  no  dwelling 
house  or  other  building  of  any  kind,  shall  ever  be  erected 
or  placed  on  said  lot  within  twenty  feet  of  the  line  of 
California  avenue,  but  that  a  space  of  twenty  feet,  as 
aforesaid,  shall  always  be  left  open  and  clear  of  all  build- 
ings, or  parts  of  buildings  whatsoever";  and  then  fol- 
lows a  provision  authorizing  any  owner  or  owners  of 
property  located  on  the  plan  to  proceed  in  any  court  of 
law  or  equity,  by  injunction  or  otherwise,  to  enforce  the 
performance  of  the  covenant  or  restrain  its  violation. 
On  October  16,  1894,  before  the  railways  company  ac- 
quired title,  its  grantor  and  other  owners  of  lots  in  the 
same  square  entered  into  an  agreement,  which  was  duly 
recorded,  changing  the  building  line  from  twenty  feet  to 
a  uniform  distance  of  forty  feet  from  the  north  line  of 
California  avenue.  The  bill  filed  by  the  complainant 
was  for  an  injunction  to  restrain  the  railways  company 
from  violating  the  building  restriction  imposed  upon  its 
lots.  Its  declared  purpose,  as  found  by  the  court  below 
at  the  time  this  proceeding  was  instituted,  was  "to  grade 
said  lots  39  and  40  to  the  approximate  level  of  California 
avenue  and  Wynhurst  street,  and  to  place  thereon,  in  the 
form  of  a  loop,  tracks  over  and  along  which  cars  may  be 
operated  and  allowed  to  stand ;  said  tracks  to  be  laid  on 
ties  supported  by  ballast,  and  said  cars  to  be  operated  in 
the  usual  manner,  by  the  use  of  poles,  wires  and  elec- 
tricity." The  grade  to  which  the  railways  company  pro- 
posed to  reduce  its  lots  is  approximately  eight  feet  be- 
low the  natural  elevation  of  them  and  the  adjoining  lots. 
The  bill  was  dismissed  on  the  ground  that  what  the  rail- 
ways company  proposed  to  do  was  not  in  violation  of  the 
building  restriction.  On  appeal  to  the  Superior  Court 
this  was  reversed,  and  the  bill  was  reinstated  with  a  pro- 
cedendo, that  court  having  been  of  opinion  that  the  pro- 
posed action  of  the  railways  company  would  be  in  viola- 


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DEWAR  r.  CARSON  et  al.,  Appellants.  603 

1918.]  Opinion  of  the  Court. 

tion  of  the  restriction :  Dewar  v.  Carson  et  al.,  67  Pa. 
Superior  Ct.  527.  From  this  the  railways  company  has 
appealed. 

While  building  restrictions  are  enforceable,  they  are 
not  favored  by  the  law,  and  covenants  relating  to  them 
are  not  to  be  extended  by  implication :  St.  Andrew's  Lu- 
theran Church's  App.,  67  Pa.  512 ;  Crofton  v.  St.  Clem- 
ent's Church,  208  Pa.  209;  McCloskey  v.  Kirk,  243  Pa. 
319.  The  error  into  which  the  learned  court  below  fell 
was  in  holding  that  the  covenant  in  the  railways  com- 
pany's deed  would  be  extended  by  implication  if  it 
should  be  restrained  from  erecting  or  placing  railroad 
tracks,  rails,  poles  and  ties  on  its  lots.  Under  the  plead- 
ings and  proofs,  the  question  was  not  one  of  extending  a 
covenant  by  implication,  but  was  as  to  the  meaning  to 
be  given  to  its  express  terms.  The  covenant  in  the  rail- 
ways company's  deed,  read  in  connection  with  the  agree- 
ment of  October  16,  1894,  is  that  the  space  of  forty  feet 
north  from  the  line  of  California  avenue  "shall  always 
be  left  open."  These  words  are  to  be  interpreted  in  the 
light  of  the  manifest  object  or  purpose  of  the  parties  in 
using  them :  Meigs  v.  Lewis,  164  Pa.  597 ;  Landell  et  al. 
V.  Hamilton  et  al.,  175  Pa.  327;  Murphy  v.  Ahlberg 
et  al.,  252  Pa.  267 ;  and  the  meaning  and  extent  of  the 
building  restriction  which  were  within  the  contempla- 
tion of  the  parties  at  the  time  it  was  imposed  must  pre- 
vail. 

In  view  of  three  findings  of  the  court  below,  which 
were  not  excepted  to  there,  and  cannot,  therefore,  be  dis- 
turbed here,  clear  error  was  committed  in  dismissing 
plaintifiTs  bill.  After  describing  his  lots  and  those  of 
the  defendant,  the  court  proceeded  to  find  as  follows: 
"Both  of  said  properties  are  in  a  residence  district." 
"In  said  forty-foot  strip  upon  said  lot  next  the  plaintiff's 
said  property  and  commencing  about  seven  or  eight  feet 
westwardly  therefrom,  the  defendant,  Pittsburgh  Rail- 
ways Company,  proposes  to  install  tracks  (consisting  of 
rails,  ties  and  ballast),  poles  about  twenty  feet  high 


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604  DEW  All  V.  CARSON  et  al,  Appellants. 

Opiuioii  of  tho  Court.  [259  Pa. 

above  ground,  and  a  system  of  wii-ee  for  electric  traction, 
together  with  street  cars  eleven  to  twelve  feet  high  and 
forty-five  feet  long,  which,  with  and  without  passengers, 
are  to  be  hauled  by  said  railways  company  over  said 
tracks  day  and  night  and  also  stored  thereon."  "By 
means  of  the  requirement  that  all  buildings  or  parts  of 
buildings  shall  be  forty  feet  back  from  the  street,  the 
parties  to  said  restriction,  for  themselves,  their  heirs  and 
assigns,  sought  to  protect  and  preserve  the  lots  in  said 
plan  (including  those  now  belonging  to  the  parties  to 
this  suit),  for  residential  purposes."  The  situation  is 
thus  concisely  and  aptly  summed  up  by  the  learned  presi- 
dent judge  of  the  Superior  Court:  "The  improvement 
contemplated  by  the  defendants  involves  a  material 
change  of  the  surface  grade,  a  permanent  erection  of 
solid  materials,  poles  and  wires,  netted  together  to  be 
used  as  a  part  of  a  general  street  system,  and  the  occu- 
pancy of  the  surface  tracks  by  cars  in  motion  or  at  rest 
according  to  the  will  of  the  owner,  and  with  such  fre- 
quency as  their  business  requires."  To  permit  the  rail- 
ways company  to  install  on  the  front  of  its  lots  "tracks 
(consisting  of  rails,  ties  and  ballast),  poles  about  twenty 
feet  high  above  ground,  and  a  system  of  wires  for  elec- 
tric traction,  together  with  street  cars  eleven  to  twelve 
feet  high  and  forty-five  feet  long,  which,  with  and  with- 
out passengers,  are  to  be  hauled  by  said  railways  com- 
pany over  said  tracks  day  and  night  and  also  stored 
thereon,"  would  defeat  the  very  purpose  of  the  building 
restriction,  which,  as  found  by  the  court  below,  was  "to 
protect  and  preserve  the  lots  for  residential  purposes." 
This  is  too  plain  for  further  comment,  and  that  portion 
of  the  lot  shall,  in  the  words  of  the  covenant,  "always  be 
left  open,"  in  the  sense  in  which  the  parties  to  the  cove- 
nant used  them,  "to  protect  and  preserve  the  lots  for 
residential  purposes." 

The  assignments  of  error  on  this  appeal  are  overruled, 
and  the  decree  of  the  Superior  Court  is  affirmed,  at  the 
cost  of  the  appellants. 


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GRIFFITH  et  al.,  AppeUauts,  t'.  McKEEVER.      605 
1918.]  Syllabus — Opinion  of  Court  below. 


Griffith,  for  use  of  Crownover,  et  al.,  Appellants,  v. 

McKeever. 

Real  property — Merger — Dower  interest  —  Assignment  of  dower 
interest  to  owner  in  fee — Mortgages — Assumpsit  for  dower, 

1.  Whenever  a  greater  estate  and  a  less  meet  in  the  same  person, 
the  less  is  merged  or  drowned  in  the  greater. 

2.  Merger  is  a  question  of  intent  and  will  not  take  place  against 
the  wishes  of  the  party  to  be  affected  by  it,  and  where  it  is  against 
the  interest  of  the  person  holding  the  respective  titles,  the  law  will 
not  presume  an  intent  to  merge. 

3.  Where  the  owner  of  land,  subject  to  dower  and  also  to  a  mort- 
gage to  secure  the  payment  of  the  dower  interest,  subsequently  ac- 
quired the  dower  interest,  and  thereafter  conveyed  the  premises 
subject  to  the  mortgage  as  part  of  the  consideration  money,  a 
merger  of  the  dower  and  the  fee  took  place,  and  the  personal  repre- 
sentative of  such  grantor  could  not  maintain  an  action  of  as- 
sumpsit for  the  dower  against  the  grantee  of  the  land,  although  the 
amount  due  was  not  in  dispute;  in  such  case  the  plaintiff's  remedy 
was  upon  the  mortgage. 

Argued  Sept.  27, 1917.  Appeal,  No.  22,  Oct.  T.,  1917, 
by  plaintiflfs,  from  judgment  of  C.  P.  Westmoreland  Co., 
Nov.  T.,  1915,  No.  254,  for  defendant  n.  o.  v.,  in  case  of 
Ida  M.  Griffith,  who  was  assignee  of  Mary  E.  Brinker, 
now  deceased,  now  for  use  of  M.  W.  Crownover  and  A. 
W.  Crownover,  administrators  of  the  Estate  of  J.  C. 
Crownover,  deceased,  v.  J.  L.  McKeever.  Before  Mbs- 
TBBZAT,  Potter,  Stbwaet,  Mosghziskbb  and  Fbazbb, 
JJ.    Affirmed. 

Assumpsit  for  dower. 

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

McKeever,  the  defendant,  is  the  owner  of  a  tract  of 
land  in  Penn  Township,  by  virtue  of  a  deed  dated  No- 
vember 22,  1905,  and  duly  recorded  in  deed  book  400, 
page  17.  This  deed  contains  the  following  clause ;  "This 
conveyance  is  made  subject  to  a  certain  mortgage  upon 
said  premises  in  favor  of  Mary  E.  Brinker,  widow  of 


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606      GRIFFITH  et  al.,  Appellants,  v.  McKEEVER. 

Opinion  of  Court  below.  [259  Pa. 

Josiah  Brinker,  deceased^  and  Sarah  M.  B.  Miller,  re- 
corded in  the  Recorder's  Office  of  Westmoreland  CJounty 
in  Mortgage  Book  45  page  315."  Prior  to  the  convey- 
ance to  McKeever,  the  said  tract  of  land  had  been  made 
subject  to  the  payment  of  a  dower  interest  to  Mary  E. 
Brinker.  One  J.  C.  Crownover  by  deed  December  6, 
1898,  became  the  owner  in  fee  of  the  said  tract  of  land, 
and  by  deed  dated  December  12,  1898,  he  likewise  ac- 
quired title  to  the  dower  estate.  Both  estates  were  thus 
vested  in  Crownover  until  February  15,  1900,  when  he 
made  a  conveyance  of  the  fee.  The  deed  to  Crownover 
and  the  one  to  his  grantee  were  made  subject  to  the  pay- 
ment of  a  certain  mortgage  conditioned  for  the  payment 
of  interest  on  the  sum  of  |3,295.84  annually  to  Mary  E. 
Brinker,  widow  of  Josiah  Brinker,  deceased,  during  her 
natural  life  and  at  her  death  to  pay  the  said  principal 
sum,  to  wit,  13,295.84  to  the  said  Sarah  M.  B.  Miller, 
which  mortgage  is  included  in  the  consideration  money 
aforesaid. 

The  suit  is  in  assumpsit  to  recover  installments  of 
dower  interest  which  were  due  and  unpaid  up  until  tho 
death  of  Mary  E.  Brinker.  The  suit  is  brought  for  tho 
use  of  the  administrators  of  J.  C.  Crownover  in  which, 
as  we  have  seen,  were  vested  at  the  same  time  both  the 
dower  interest  and  the  fee  simple.  The  amounts  are  not 
disputed,  but  the  defendant  contends  that  in  this  action 
he  is  not  liable  to  pay  the  installments  of  dower  now  due. 
It  is  clear  that  the  action  of  assumpsit  would  not  lie  on 
the  mortgage  which  has  been  referred  to.  There  is  no 
express  covenant  to  pay.  The  use  of  the  words  "under 
and  subject  to  the  payment  of  such  mortgage"  would  not 
alone  impose  a  personal  liability  upon  the  defendant,  and 
there  is  nothing  else  in  the  case  to  show  a  covenant  on  his 
part  to  pay. 

The  real  question  in  dispute  Is :  Whether  there  was  a 
merger  of  the  dower  estate  in  the  fee  simple?  The  facts 
are  not  contested.  Crownover,  for  the  use  of  whose  es- 
tate this  action  is  brought,  had  title  to  both  dower  inter- 


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GRIFFITH  et  al.,  AppeUants,  v,  McKEEVER.      607 
1918.}  Opinion  of  Court  below. 

est  and  the  fee  simple  from  December  12, 1898,  until  Feb- 
ruary 1900,  when  the  fee  was  conveyed  subject  to  the 
mortgage  already  mentioned.  The  dower  interest  of  the 
widow  was  a  life  estate  in  the  land..  Crownover  acquired 
this  estate  and  at  the  same  time  was  seized  of  the  fee 
simple.  The  textbooks  lay  down  the  doctrine  that  when- 
ever a  greater  estate  and  a  less  meet  in  the  same  person 
the  less  is  merged  or  drowned  in  the  greater.  And  this 
doctrine  has  been  consistently  applied  in  the  courts  of 
this  State :  Kreamer  v.  Fleming,  191  Pa.  534. 

In  Estate  of  Fred'k  Danhouse,  130  Pa.  256,  it  is  indi- 
cated that  there  is  an  exception  to  the  general  rule  as  to 
merger,  the  court  declaring  in  the  opinion,  p.  260,  that : 
"Merger  is  a  question  of  intent  and  will  not  take  place 
against  the  wishes  of  the  party  to  be  aflfected  by  it :  and, 
where  it  is  against  the  interest  of  the  person  holding  the 
respective  titles,  the  law  will  not  presume  an  intent  to 
merge."  In  the  case  in  hand  we  can  conceive  of  no  in- 
terest in  Crownover  that  would  be  adversely  aflfected  by 
a  merger.  There  is  nothing  on  the  record  to  show  that 
it  was  against  his  wish  or  consent,  but  the  fact  that  he 
conveyed  subject  to  the  mortgage  securing  to  the  same 
persons  the  same  amounts  of  money  to  be  paid  under  pro- 
ceedings in  partition,  seems  to  show  that  it  was  recog- 
nized that  the  estates  were  merged  and  that  the  assignee 
of  the  widow^s  interest  and  the  distributee  were  to  be 
protected  by  the  new  security. 

It  is  conceded  that  there  is  only  one  indebtedness.  The 
mortgage  and  the  recognizance  in  partition  are  intended 
to  secure  the  identical  amounts  to  the  same  persons. 
This  debt  has  never  been  paid.  It  was  made  part  of  the 
consideration  in  the  conveyance  to  McKeever  the  defend- 
ant herein,  the  deed  to  him  containing  the  provisions 
that:  "This  conveyance  is  made  subject  to  a  certain 
mortgage  upon  said  premises  in  favor  of  Mary  E.  Brink- 
er,  widow  of  Josiah  Brinker,  deceased,  and  Mrs.  Sarah 
M.  B.  Miller,  recorded  in  the  recorder's  ofllce  of  West- 
moreland County  in  mortgage  book  45,  page  315,"  etc, 


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608      GRIFFITH  et  al.,  Appellants,  v.  McKEEVER. 

Opinion  of  Court  below — Opinion  of  the  Court.  [269  Pa. 
The  suit  here  is  not  on  this  mortgage  and  an  action  of 
assumpsit  would  not  lie  thereon  against  the  terre-tenant, 
if  we  are  to  be  guided  by  Hollenberger  v.  Yankey,  145 
Pa.  179.  But  the  law  affords  a  remedy  for  the  collection 
of  the  unpaid  balance  of  the  purchase-money.  The 
whole  dispute  here  seems  to  be  about  the  remedy,  as  it  is 
admitted  that  the  original  debt  is  unpaid  and  that  the 
present  holder  of  the  title  has  not  paid  in  full  the  con- 
sideration provided  in  his  deed.  But  the  question  that 
confronts  the  court  is  not  whether  defendant  is  bound 
to  pay  but  whether  he  is  liable  in  this  suit.  As  it  seems 
clear  that  the  two  estates  were  merged  as  already  ex- 
plained, it  follows  that  an  action  of  assumpsit  cannot  be 
maintained  against  the  present  holder  of  the  title,  and  as 
there  are  no  facts  in  dispute  it  also  follows  that  defend- 
ant is  entitled  to  judgment  non  obstante  veredicto. 

Verdict  for  plaintiffs  for  }1,658.44. 
The  court  subsequently  entered  judgment  for  defend- 
ant n.  o.  V.    Plaintiffs  appealed. 

Error  assigned  was  the  judgment  of  the  court. 

John  E.  Kunkle,  for  appellants. 

George  W.  Flowers,  for  appellee. 

Pee  Curiam,  January  7,  1918 : 

The  judgment  is  affirmed  on  the  opinion  of  the  learned 
court  below  entering  judgment  for  defendant  non  ob- 
stante veredicto. 


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INDEX. 


ACCUMULATIONS. 

1.  Bule  against  perpetuities — WUh — C7afw^nic<toi>— iict  cf 
April  18,  185S,  P.  L.  SOS^Iniention.    MeKeawm*s  Estate,  216. 

ACTIONS, 

1.  Action  on  several  contract — Presumption — Set-off'^ 
Joint  debt — Affidavit  of  defense — Insufficient  averments — Cor- 
poration defendant — Affidavit  by  person  not  officer— ^Insuf- 
ficiency^ Act  of  May  U,  1915,  P.  L,  J^SS— Practice,  0.  P. 
Xlmts  T.  Tri-Oonstj  Hat.  Gas  Oo^  477* 

ADOPTION. 

1.  Failure  of  father  to  support  child^Act  of  May  28, 1915, 
P.  L,  580 — Decree — Consent  of  mother — Insanity  of  father — 
Death  of  father — Subsequent  proceedings  by  mother  to  set 
decree  aside — Status  of  committee — Appeal — Certiorari, 

By  adoption  a  new  status  is  created  which  cannot  he  stricken 
down  because  of  regret  of  a  parent  who  consented  thereto. 

A  decree  of  adoption  based  upon  a  finding  that  the  father  of 
the  child  had  neglected  and  refused  to  support  said  child  for 
upwards  of  a  year,  is  presumed  to  be  based  on  evidence,  and 
win  not  be  set  aside  on  the  ground  of  lack  of  jurisdiction  where 
the  proceedings  are  before  a  proper  tribunal,  and  no  appeal 
was  taken  from  the  decree  of  adoption. 

Whatever  right  a  parent  has  to  the  cutsody  of  his  child  ter^ 
minatee  at  his  death,  and  the  committee  in  lunacy  of  a  parent 
whose  child  had  been  adopted  has  no  right  after  the  death  of 
the  parent  to  join  in  an  appeal  from  a  decree  refusing  to  set 
aside  a  decree  of  adoption. 

A  child  whose  father  had  failed  to  support  it  owing  to  ill 
health,  and  as  the  court  below  found  within  the  meaning  of  the 
Act  of  May  28, 1915,  P.  L.  580,  was  adopted  by  relatives,  under 
a  decree  of  the  court,  to  which  the  mother  consented.  The  de- 
cree was  based  upon  evidence  which  was  not  preserved  of 
record.  Thereafter  the  father  died  and  the  mother  pe- 
titioned for  the  setting  aside  of  the  decree,  contending  that 
she  had  consented  to  the  petition  for  adoption,  in.  the  belief 
that  she  was  merely  allowing  the  adopting  parents  to  educate 

Vol.  ccux— 39  (609) 


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610  INDEX 

ADOPTION— continued. 

the  child.  There  was  no  evidence  of  any  fraud  or  bad  faith 
on  the  part  of  the  adopting  parents.  Held,  the  lower  court 
properly  refused  to  set  aside  the  decree  of  adoption. 

An  appeal  from  a  decree  in  an  adoption  proceedings  is  in 
effect  a  certiorari,  and  brings  up  nothing  but  the  record.  The 
Supreme  Court  cannot  review  the  merits,  but  is  entitled  to 
inq^eet  the  whole  record  with  regard  to  the  regularity  and 
prcH[>ri0ty  of  the  proceedings,  and  to  ascertain  whether  the 
court  below  exceeded  its  jurisdiction  or  its  proper  legal  dis- 
cretion, and  if  the  proceedings  are  regular  in  these  respects 
the  api>eal  will  be  dismissed.  Helen  FrAiioes  Tevmc'a  Adop* 
tion,  573. 

AFFIDAVIT  OF  DEFENSE,  see  Practice,  C.  P. 

APPEALS. 

1.  Certiorari — Adoption — Failure  of  father  to  support  child 
—Act  of  May  28, 1915,  P.  L.  580— Decree-— Consent  of  mother 
— Insanity  of  father — Deaih  of  father — Subsequent  proceed- 
ings  hy  mother  to  set  decree  aside — Status  of  committee, 
Helen  Franeea  Tonng's  Adeptien*  573. 

2.  Equity  practice — Adjudications — Exceptions-Chancellor 
and  other  judges — Opinion,    Kioinko  t«  Petrnskn,  L 

8.  Jurisdiction,  C,  P. — Public  Service  Commission — Com- 
phint — Street  railwaffs — Change  of  rates — Reasonableness — 
Boroughs — Contracts — Bill  in  equity — Dismissal — Findings 
of  Public  Service  Commission — Practice,  C.  P, — Act  of  July 
26, 191S,  P.  L.  137i,  ^^  Clair  Boro.  t.  T.  *  P.  Elee.  By.  Co., 
462. 

4.  Practice,  Supreme  Court — Auditing  judge — Findings  of 
faet'Concilusiveness.    Edmnndsen'a  Bstnte,  429. 

5.  Practice,  Supreme  Court — Errors  due  to  coi%duct  of  ap- 
pelhni^s  counsel — Assignments  of  error  —  Defective  assign^ 
ments,     Mmstrmj  t.  Smltk,  518. 

6.  Questions  considered  on  appeal — Negligence  —  Railroads 
— Evidence — Res  gestcs  —  Gowvoroation  —  Rulings  hy  trial 
judge.    Iieenard  t.  B.  Jfc  O.  B.  B.  €k».,  51. 

ASSIGNMENTS  OF  ERROR. 

1.  Assignments  of  error  to  exceptions  to  adjudication — FaiU 
ure  to  quote  decree — Practice,  Supreme  Court.  HoIIIncer*s 
Estate,  75. 

2.  Defective  assignments — Probities,  Supreme  Court — Ap" 
peals — Errors  due  to  conduct  of  appeUoinifs  counsel.  Mnrrar 
T.  Smitb,  518. 


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INDEX.  611 

ATTOKNET  AND  CLIENT. 

1.  Privileged  communication — Banks  and  hanking  —  Bank 
deposits — Transactions  outside  of  usual  bt^nking  hours — Lic^ 
hility  of  hank — Evidence — Entry  in  hank's  hooks.  Goador  t. 
Fmrmen  Nat.  Brnnk,  197. 

ATTOKNEYS-AT-LAW. 

1.  Errors  due  to  conduct  of  appellant's  counsel — Assign* 
ments  of  error — Defective  assignments  —  Practice,  Supreme 
Court — Appeals,    Miurray  t,  Sndtk,  518. 

2.  Improper  conduct — Breach  of  fidelity  to  court — Mishc' 
havior  in  office — Charge  of  prejudice  against  judges — Remarks 
in  argument  in  Federal  Court  for  removal  of  cause  from  Com-' 
mon  Pleas  Court — Privilege — Constitution  of  United  States, 
Sec.  2,  Art.  III^Act  of  Congress  of  March  3, 1911. 

A  court  has  power  to  slirike  the  name  of  a  member  of  the  bar 
from  the  roll  for  official  misconduct  in  or  out  of  court,  irre- 
spective of  where  the  misconduct  occurs.  A  state  court  may 
disbar  one  of  its  attorneys  for  misconduct  committed  in  a 
Federal  Court  or  in  any  other  State  court 

The  purpose  of  Art.  Ill,  Sec.  2,  of  the  Constitution  of  the 
United  States  extending  to  the  Federal  courts  jurisdiction  in 
controversies  between  citizens  of  different  states,  was  to  secure 
for  controversies  between  citizens  of  different  states  a  tri- 
bunal independent  of  local  influences  and  surroundings, 
whether  the  question  for  determination  are  of  fact  or  law,  and 
it  was  in  pursuance  of  such  purpose  that  the  Act  of  Congress 
of  March  3,  1911,  36  Stat.  1094,  was  passed,  providing  that  a 
.  defendant  in  a  suit  in  a  state  court  may  remove  it  to  the  prop- 
er Federal  court  at  any  time  before  the  trial  thereof,  if  it 
shall  appear  to  said  court  that  he  will  not,  from  prejudice  and 
local  influence,  be  able  to  obtain  justice  in  the  State  court. 

The  right  of  removal  from  a  State  court,  on  the  groimd  of 
local  prejudice,  is  not  confined  to  prejudices  which  may  affect  a 
juiy  but  extends  to  those  which  may  influence  a  judge. 

The  test  as  to  whether  remarks  made  by  an  attorney  in 
derogation  of  the  judges  of  a  Common  Pleas  Court  during  the 
course  of  an  argument  for  the  removal  of  a  cause  to  the  Fed- 
eral courts  on  the  ground  of  local  prejudice,  constitute  misbe- 
havior in  his  office  as  attorney  is  not  whether  the  words  spoken 
are  true,  but  whether  they  were  spoken  in  the  course  of  a  ju- 
dicial proceeding  and  were  relevant  or  pertinent  to  the  sub- 
ject or  cause  of  inquiry. 

A  statement  made  by  a  member  of  the  Luzerne  County  Bar 
in  the  Fnited  States  District  Court  during  the  course  of  an 


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612.  INDEX. 

ATTORNEYS-AT-LAW— con«nti«J. 

argument  in  support  o£  a  rule  to  remand  to  the  former  court 
a  cause  which  had  been  removed  to  the  district  courts  to  the 
effect  that  ^'the  five  judges  of  the  Luzerne  court  are  so  prej- 
udiced that  (the  defendant)  could  not  get  a  fair  trial  in  our 
courts/'  was  privileged,  since  the  act  of  congress  required  his 
client  to  show  that  prejudice  existed  in  order  that  the  cause  be 
removed,  and  what  was  said  was  relevant  and  pertinent  to  the 
subject  of  the  inquiiy  and  was  supported  by  a£B4&vits;  and  an 
order  suspending  such  attorney  from  office  for  aix  montha  was 
reversed.    Sherwood's  ImTostlsatlom,  254. 

AUTOMOBILES- 

1.  Negligence — Ratlroack-^ontribtUory  negligene&^-Chiest 
— Testing  danger.    Vooea  t.  Pemiuk  R.  R.  Co.*  42. 

2.  Negligence — Standing  trolley  ear — Alighting  passenger 
passing  around  front  of  car — Collision  with  automohUe  he* 
tween  opposite  hound  tracks — Speed — Failure  to  blow  horn — 
Cutting  in  front  of  street  car — Contributory  negligence — Case 
for  jury. 

No  one  can  complain  of  want  of  care  in  another  where  care 
is  rendered  necessary  only  by  his  own  wrongful  act. 

In  an  action  against  the  owner  of  an  automobile  to  recover 
for  personal  injuries  the  question  of  defendant's  negligence 
and  the  contributory  negligence  of  the  plaintiff  were  for  the 
jury  and  a  verdict  and  judgment  for  the  plaintiff  will  be  sus- 
tained, where  it  appeared  that  plaintiff,  after  alighting  from 
the  front  of  a  street  car,  which  had  stopped  at  a  crossing, 
passed  around  in  front  of  the  car  and  had  taken  about  two 
steps  beyond  it  when  he  was  struck  in  the  space  between  the 
east  and  west  bound  tracks  by  defendant's  automobile  heading 
in  the  same  direction  as  the  car;  that  the  automobile  ap- 
proached at  a  greater  than  usual  rate  of  speed  at  that  place 
without  sounding  its  horn  and  just  before  striking  plaintiff 
changed  its  course,  running  in  close  to  the  front  end  of  the 
car  in  an  effort  to  pass  in  front  of  it.    Oelrioh  t.  Komt»  407. 

BANKS  AND  BANKING. 

1.  Bank  deposits — Transactions  outside  of  usual  hanking 
hours — Liahility  of  hank — Evidence — Entry  in  bank's  books — 
Attorney  and  client — Privileged  communication. 

At  the  request  of  a  depositor  in  a  bank,  who  desired  to 
transfer  certain  funds  on  deposit  in  the  savings  department  of 
the  bank  to  her  husband,  die  cashier  of  the  bank  went  to  the 
home  of  the  depositor  to  arrange  the  transfer.  He  prepared  a 
receipt  for  $701.20,  which  the  depositor  signed.    The  cashier 


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INDEX.  613 

BANKS  AND  BANKLH^Q— continued. 

entered  credit  in  the  pass  book  of  the  depositor's  husband  for 
$701.20,  and  on  the  books  of  the  bank  entered  a  withdrawal  of 
$701.20  from  the  account  of  the  depositor.  No  money  was 
paid  to  the  cashier  at  the  home  of  the  depositor.  He  with* 
drew  from  the  bank  the  amount  of  the  receipt  and  misap* 
propriated  it.  In  an  action  by  the  husband  of  the  depositor 
against  the  bank  for  the  amount  misappropriated,  the  lower 
court  decided  that  the  bank*  was  liable.    Held,  no  error. 

In  such  case  it  was  not  error  to  refuse  to  permit  the  bank 
to  offer  in  evidence  its  loose-leaf  ledger  sheet  showing  the 
omission  of  the  item,  as  the  bank  could  not  relieve  itself  from 
paying  money  because  its  officers  failed  to  make  a  proper  entiy 
on  its  books. 

Where  an  item  of  $1,500  was  withdrawn  from  plaintiff's 
account  by  the  cashier  without  any  evidence  that  he  was 
authorized  to  make  such  withdrawal,  the  jury  was  properly  in- 
structed to  allow  the  plaintiff  to  recover  the  amount  thereof. 

Where  another  item  of  $3,000  was  withdrawn  by  the  cashier 
from  the  plaintiff's  account,  the  fact  that  he  deposited  with 
the  papers  in  the  bank  a  receipt  signed  by  himself,  for  the 
plaintiffs  did  not  establish  the  agency  of  the  cashier  for  the 
withdrawal  of  the  fund  or  justify  the  submission  of  the  ques- 
tion of  the  agency  of  the  cashier  to  the  juiy. 

In  such  case  the  exclusion  of  the  bank's  ledger  sheet  showing 
the  withdrawal  of  such  items  of  $1,500  and  $3,000  was  not 
error,  as  the  bank  could  not  escape  the  payment  of  the  money 
by  showing  that  it  had  charged  the  plaintiff  with  such  with- 
drawals in  the  absence  of  evidence  of  authority  for  such 
charge. 

It  was  not  error  to  refuse  to  permit  an  attorney  who  had  had 
a  conversation  with  plaintiff  in  the  presence  of  the  cashier 
after  his  relation  with  the  bank  had  terminated,  to  relate  such 
conversation  where  it  appeared  that  the  witness  was  counsel  for 
the  plaintiff  and  that  the  conversation  was  privileged.  Goa- 
der  T*  Farmem  Hat.  Bank,  197. 

2.  Deposits — Failure  to  demand  deposit  toithin  thirty  years 
— Payment  to  State — Depositor's  right  against  State — Con- 
tract subject  to  statute — Acts  of  April  17,  1872,  P.  L,  6S,  and 
May  11,  1909,  P.  L.  6 19^Validity^ Affidavits  of  defense— In- 
sufficient averments — Const,  of  U,  S.  Hth  Amendment — Const, 
of  Penna.,  Art.  I,  Sec.  10,  and  Art.  Ill,  Sees.  16  and  21 — 
Property  rights — Payment  of  money  hy  State  without  appro- 
priation — Limitation  of  action  against  corporation.  Com.  t. 
DoUar  SaTincs  Bank,  138. 


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614  INDEX. 

BENEFICIAL  ASSOCIATIONS. 

1.  Insurance  companies — Dietinctiwiy^By4aws  of  society-^ 
Death  benefits — Failure  to  include  by-laws  in  certificate — Evi^ 
dence — Unauthorized  circular  hy  officer — Acts  of  May  11, 1881, 
P.  L.  20,  and  April  6,  189S,  P.  L.  7— Ccwe  for  jury. 

A  controlling  test  as  to  whether  an  organization  is  a  bene- 
ficial association  or  an  insurance  company  is  whether  the 
organization  comes  within  the  definition  of  the  Act  of  April 
6,  1893,  P.  L.  7,  which  declares  that  a  fraternal  ben^cial  aa* 
sedation  is  a  corporation,  society  or  voluntaiy  association 
organized  and  carried  on  for  the  sole  benefit  of  its  members 
and  their  beneficiaries  and  not  for  profit,  "and  in  which  the 
payment  of  death  benefits  shall  be  to  families,  heirs,  blood 
relatives,  affianced  husband  or  affianced  wife  of,  or  to  persons 
dependent  upon  the  member." 

A  society  organized  as  a  social  institution  with  a  provision 
for  insurance  not  as  a  means  of  profit  but  in  the  exercise  of  a  be- 
nevolent and  fraternal  purpose,  and  governed  through  a  branch 
system  with  a  form  of  initiation,  requiring  that  an  applicant 
can  be  admitted  to  membership  only  after  investigation  and 
report  by  the  board  of  trustees  of  the  branch,  and  a  favorable 
ballot  by  the  members  present  at  a  regular  meeting,  and  re- 
quiring that  the  designation  of  beneficiaries  be  limited  to  rela- 
tives or  dependents  of  the  member,  or  to  a  charitable  institu- 
tion of  which  he  may  be  an  inmate,  and  stipulating  that  no 
member  may  belong  to  two  branches  of  the  association  at  the 
same  time,  is  a  beneficial  association  and  not  an  insurance 
company. 

The  Act  of  May  11, 1881,  P.  L.  20,  providing  that  where  an 
insurance  policy  refers  to  the  constitution  and  by-laws  of  the 
insurer  as  forming  part  of  the  insurance  contract,  such  con- 
stitution and  by-laws  shall  not  be  admissible  in  evidence  un- 
less a  copy  thereof  be  attached  to  the  policy,  applies  to  in- 
surance companies  and  not  to  boieficial  associations. 

In  an  action  against  such  organization  by  the  wife  of  a 
member,  the  statement  of  claim  averred  that  plaintiff's  hus- 
band had  left  home  and  had  not  been  heard  of  for  a  period  of 
more  than  seven  years,  and  that  the  presumption  of  his  death 
had  therefore  arisen.  The  by-laws  of  the  association  provided 
that  '^o  time  of  absence  or  disappearance  of  a  member,  with- 
out proof  of  actual  death,  shall  entitle  his  beneficiary,  family 
or  next  of  kin  to  receive  any  part  or  portion  of  the  said  fund," 
except  only  where  the  disappearance  had  been  for  a  period  of 
twenty  years.  The  trial  judge  excluded  the  application  for 
membership,  the  medical  certificate  and  the  constitution  and 


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BENEFICIAL  A880CIAT10 I^S—conttnued. 

by-laws  of  the  association  on  the  ground  that  these  papers 
were  not  printed  in  or  attached  to  the  certificate  as  required 
by  the  Act  of  May  11,  1881,  P.  L.  20,  relating  to  insurance 
companies.  Held,  (1)  the  defendant  society  was  a  beneficial 
association  and  not  an  insurance  company,  (2)  the  evidence 
referred  to  was  improperly  excluded,  and  (8)  the  court  erred 
in  giving  binding  instructions  for  the  plaintiff. 

In  such  case  a  circular  issued  by  the  grand  secretary  of  the 
defendant  without  the  proper  authority  of  the  organization, 
may  be  admissible  as  tending  to  modify  or  contradict  some  of 
the  testimony  of  that  official,  but  is  not  admissible  as  affecting 
the  purpose  or  character  of  the  defendant. 

Ogle  V.  Barron,  247  Pa.  19,  followed;  Marcus  v.  Heralds  of 
Liberty,  241  Pa.  429,  distinguished.  IsmS^rtj  t.  MmpvmmQ 
ConaeU  Catlu  Mnt.  Bes*  Amiu,  452. 

BONDS. 

1.  Injunction — Receivers — Affidavit — Protection  of  proper- 
ty^Acis  of  March  SI,  1806,  i  8m.  L,  826;  May  6, 18U,  P.  L. 
66J^,  Sec.  1,  and  June  16,  18S6,  P.  L,  ISU—Equity  Rules  81 
and  82.    Bamr  t.  Wilkes-Bam  Ligkt  €)••,  115. 

2.  Official  hands — Municipalities — Default — County  audi- 
tors— Audit — Failure  to  appeal — Sureties — Liability  for  de- 
falcation of  principal — Judgment  for  defendant,  Sayder  t. 
Berkey,  489. 

3.  Production  of  bond — Defenses — Evidence — Practice,  Su- 
preme Court — Question  not  raised  below — Mortgages — Fore- 
closure— Assignment,    Anderson  t.  Xemt  81. 

4.  Return  of  bonds — Sale  of  guardians'  bonds  registered  in 
ward^s  name — Failure  of  purchaser  to  make  inquiry — Liahility 
of  purchaser  to  ward — Equity — Decree — Accounting — Trusts 
and  trustees — Guardian  and  ward — Embezzlement.  Hamil- 
ton T.  Peoples  Hat.  Bank,  220. 

BOROUGHS. 

1.  Contracts — B^l  in  equity — Dismissal — Findings  of  Pub- 
lic Service  Commission — Appeal — Practice,  C.  P, — Act  of  July 
26,  WIS,  P.  L,  lS7Jh^urisdiction,  C.  P.^Public  Service  Com- 
mission— Complaint — Street  railways — Change  of  rates — Rea- 
sonableness.   St.  Clair  Bore  t.  T.  Jfc  P.  Eloe.  By.  Co.,  462. 

2,  Eminent  domain — Parks — Appropriation  of  land  —  Act 
of  May  U,  1916,  P.  L.  S12-^12-^Indebtedness  in  excess  of 
statutory  UnUt — Failure  to  submit  to  vote  of  people — Failure 
to  pay — Mandamus — Courts — Power  over  process. 


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616  INDEX 

BOROUGHS— continued 

Any  court  having  jurisdiction  to  hear  and  determine  civil 
cases  has  control  over  its  own  processes  of  execution,  but  such 
power  may  not  be  exercised  arbitrarily  but  only  when  suf-. 
ficient  legal  reason  is  shown  for  the  court's  interference. 

The  right  of  boroughs  to  appropriate  land  for  park  purposes 
is  purely  statutory  and  can  be  exercised  only  as  the  terms  and 
conditions  of  the  statutes  have  been  complied  with. 

Under  Sections  3  and  4  of  the  Act  of  May  14,  1915,  P,  L. 
812-412,  giving  boroughs  the  right  to  appropriate  land  for 
public  park  purposes,  a  borough  will  not  be  liable  for  the  value 
of  land  appropriated  where  the  value  of  such  land  exceeds  one 
and  one-half  mills  on  the  dollar  of  valuation  of  all  property, 
offices,  professions,  and  persons  in  the  borough  upon  which 
county  taxes  are  rated  and  levied,  except  as  the  appropriation 
is  approved  by  a  majority  vcite  of  the  borough. 

Land  appropriated  by  a  borough  ordinance  for  park  pur- 
poses exceeded  in  value  one  and  one-half  mills  on  the  dollar 
of  the  valuation  of  all  property,  offices,  professions,  and  per- 
sons in  the  borough,  and  such  appropriation  was  not  approved 
by  a  majority  of  the  borough  electors.  The  borough  was  with- 
out funds  to  pay  the  amount  of  the  award,  from  'vdiich  no 
appeal  had  been  taken  and  upon  which  judgment  had  been 
entered.  The  persons  whose  land  had  been  taken  issued  a  man- 
damus execution  against  the  borough.  At  the  instance  of  the 
borough  the  court  made  an  order  directing  the  borough  to  pay 
on  account  of  the  award  ^annually  such  an  amount  as  will 
not  exceed  a  total  of  one  and  one-half  mills  on  the  dollar,  in 
three  years,  calculated  on  the  basis  of  the  valuation  of  property 
in  said  borough  at  the  rate  as  may  from  time  to  time  be 
assessed  for  county  purposes,"  the  apparent  purpose  of  such 
order  being  to  make  the  writ  effective  for  only  so  much  in  any 
one  term  of  three  years  as  the  defendant  borough  could  have 
been  compelled  to  pay  had  the  indebtedness  incurred  not  been 
in  excess  of  one  and  one-half  mills  on  the  dollar  of  the  assessed 
valuation  of  the  borough.  Held,  (1)  the  question  of  the  ap- 
propriation of  the  property  not  having  been  submitted  to  the 
electors  of  the  borough,  the  ordinance  making  the  appropri- 
ation imposed  no  liability  upon  the  borough,  and  the  judg- 
ment was  not  ripe  for  final  process  to  enforce  its  payment, 
(2)  while  it  would  not  be  in  the  power  of  the  court  to  strike 
such  judgment  from  the  record  the  court  has  power  to  open 
such  judgment  for  purposes  of  defense  and  in  the  present 
case  it  would  be  a  clear  abuse  of  discretion  not  to  do  so,  and 


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INDEX.  617 

BOROUGHS— c<m^nt*c(i. 

(8)  the  execution  should  be  vacated  and  set  aside.    Viokroy 
T«  FermdAle  Boro*,  321. 

3.  Street  railways — Townships — Orant  of  right  to  operate 
road — Resolution — Minutes  of  meeting  —  Right  to  construct 
sidings  and  switches — "Switches'* — Subsequent  incorporation 
of  borough — Construction  of  tracks  into  new  car  ham — Inter- 
ference by  borough — Laches  —  Acquiescence — Ratification — 
BiU  in  equity — Injunction. 

Laches  may  be  imputed  to  the  Commonwealth  or  to  a  munici- 
pality as  well  as  to  an  individual. 

Where  the  tracks  of  a  street  railway  company  have  occupied 
a  township  road  pursuant  to  authority  of  the  township  super- 
visors for  a  period  of  fourteen  years,  at  the  end  of  which  time 
a  borough  was  erected  embracing  the  road  in  question,  the 
fact  that  the  railway's  right  to  occupy  the  road  was  not  chal- 
lenged until  twelve  years  thereafter,  is  strong  evidence  of 
acquiescence  on  the  part  of  the  borough  authorities. 

Tlie  manner  in  which  the  consent  of  so  elementary  an  organi- 
zation as  a  township,  where  it  is  requisite,  is  given,  is  not  so 
important  as  that  the  fact  of  its  being  given  should  clearly 
appear.  Although  action  should  be  taken  by  means  of  a  formal 
resolution,  duly  recorded  in  the  minutes  of  the  meeting,  never- 
theless, where  the  consent  of  the  supervisors  is  evidenced  by 
a  written  instrument  duly  signed  and  acknowledged  by  them, 
their  failure  to  have  a  minute  of  the  transaction  entered  upon 
their  records  cannot  operate  to  invalidate  the  consent. 

Though  the  obtaining  of  a  municipality's  consent  to  occupy 
any  of  its  streets  be  a  condition  precedent  to  the  lawful  exer- 
cise of  the  power  to  do  so  by  a  railway  company,  nevertheless 
where  the  consent  has  not  been  obtained  in  advance,  there 
may  be  a  subsequent  ratification. 

While  strictly  speaking  a  switch  is  a  mechanical  arrange- 
ment of  movable  parts  of  rails  for  transferring  cars  from  one 
track  to  another,  the  word  is  commonly  used  as  a  synonym  for 
siding  and  turnout. 

The  rule  that,  even  were  not  expressly  given,  the  right  to 
build  switches  and  sidings  is  included  as  a  necessary  incident 
to  the  grant  of  the  right  to  build  a  railroad,  is  applicable  to 
street  railways  as  well  as  to  steam  railroads. 

Borough  authorities  may  exercise  reasonable  control  over 
the  manner  in  which  switches  are  laid  or  sidings  constructed. 

Switches  and  sidings  should  be  laid  so  as  to  cause  the  least 
possible  inconvMiience  to  traffic,  and  if  there  be  any  irreconcil- 
able controversy  upon  this  ^bjecit,  a  court  of  equity  will  have 


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618  INDEX. 

130R0UGHS— conWnuei 

jimsdiction  to  determiiie  what  is  a  leaaonaUe  oooupaiu^  of 
the  street  under  the  circumstances. 

On  the  hearing  of  a  bill  in  equity  brought  by  a  street  rail- 
way company  to  enjoin  a  borough  from  interfering  with  the 
laying  of  switches  connecting  complainant's  tracks  in  the  high- 
way with  its  car  bam,  it  appeared  that  a  township  in  1890  grrant- 
ed  authority  to  complainant  to  lay  **a  single  or  double  track 
railway  with  the  necessary  sidings,  turnouts  and  switches/' 
and  to  maintain,  operate  and  use  such  railway  on  a  certain 
road  within  its  limits.  In  1904  a  borough  was  created  includ- 
ing such  road  within  its  limits.  In  1905  the  company  paved 
part  of  the  street  on  either  side  of  its  tracks  at  considerable 
cost.  In  1916  the  railway  attempted  to  lay  switches,  wholly 
on  the  cartway  of  the  street  and  on  its  own  sidewalk,  from  its 
main  tracks  to  an  abutting  lot  on  which  it  had  erected  a  car 
bam.  The  borough  authorities  denied  the  right  to  construct 
such  switches  and  threatened  to  prevent  its  exercise.  Held, 
(1)  the  complainant  company  had  the  right  and  authority  to 
lay  sidings  and  switches,  and  (2)  the  decree  of  the  lower  court 
dismissing  the  bill  was  reversed,  the  bill  reinstated  and  the 
record  remanded  with  directions  that  an  injunction  be  issued. 

In  such  case  the  fact  that  after  the  borough  was  incorpo- 
rated it  widened  the  road  by  adding  five  feet  upon  either  side 
is  immaterial. 

Breen  v.  Pittsburgh,  Harmony,  Butler  &  New  Castle  By. 
Co.,  220  Pa.  612,  distinguished  by  the  fact  that  there  the  rights 
of  an  abutting  owner  were  affected.  Plttalbmrsli  Bjs.  Co.  ▼• 
Carriok  Bore  333. 

BUBDEN  OF  PBOOF. 

1.  Noneuii — Evidence — Leading  question  —  Negligence  — 
RaUroad  croesinga — "Stop,  look  and  listen" — Presumption — 
Oontributory  negligence,    Waltosh  t.  Peama.  R.  R.  €k»*,  372. 

2.  Presumption — Opening  judgments  —  Discretion  bf  court 
— Rule  to  strike  off  judgment  —  Laches  —  Res  adjttdicata  — 
Judgments — Judgment  notes — Alleged  alteration — Addition  of 
seal — Evidence.    Bowman  t.  Borkey,  327. 

BY-LAWS. 

1.  Of  heneficidl  societu — Failure  to  include  hp4aws  in  cer- 
tificate-'Acts  of  May  11, 1881,  P.  L.  eo,  and  April  6, 189S,  F. 
L.  7 — Case  for  jury — Beneficial  association — Insurance  com^ 
ponies — Distinction — Death  henefits,  Lafforty  ▼ 
CovaoU  Catli.  Mat.  Boa.  Amwm^  462. 


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CHAEGE  OF  COURT. 

1.  Failure  io  request — CowtracU — Suretyship-^ oaL  land^--' 
Receipts — Explanation — Evidence  —  Legal  effect  of  receipt — 
Admission  in  pleadings — Excessive  verdict — Motion  for  new 
trial    Pittsburgh  Bloek  Coal  Co.  ▼•  Oliver  Coal  Co.,  290. 

CHURCH  LAW. 

1.  Church  property — Dedication  to  certain  purposes — Diver* 
sion — Equity — Injunction — Judgment  in  prior  suit — Bes  ad" 
judicata — Estoppel, 

The  estoppel  of  a  judgment  extends  only  to  a  question  di- 
rectly involved  in  the  issue  and  not  to  any  incidental  or  col- 
lateral matter  however  it  may  have  arisen  and  been  passed 
upon. 

A  decree  in  equity  determining  the  right  of  a  congregation 
to  discharge  a  rector,  under  a  contract  which  he  had  violated, 
does  not  bar  a  subsequent  suit  between  members  of  the  same 
congregation  relating  to  the  control  of  the  church  property, 
and  it  is  not  material  that  certain  findings  in  the  prior  suit 
are  not  consistent  with  certain  findings  in  the  second  suit, 
where  the  questions  involved  in  such  findings  were  merely  inci- 
dental to  the  main  questions  at  issue. 

A  congregation  was  incorporated  in  1901  for  the  purpose  of 
maintaining  a  place  of  worship  according  to  the  faith,  doctrine, 
discipline,  government  and  forms  of  the  United  Greek  Catholic 
Church.  Until  1914  the  congregation  adhered  to  the  faith  and 
practiced  the  ritual  of  the  United  Greek  Catholic  Church.  In 
1914  the  congregation  employed  a  priest  who  belonged  to  the 
Orthodox  Greek  Catholic  Church  and  who  began  to  preach  the 
dogmas  and  perform  the  ceremonies  of  such  denomination,  so 
that  a  large  number  of  the  members  forsook  the  charter  pur- 
poses of  the  congregation,  and  practiced  in  the  church  the  wor- 
ship and  forms  of  the  Orthodox  Greek  Catholic  Church,  ex- 
cluding from  the  church  premises  tfiose  who  adhered  to  the 
United  Greek  Catholic  Church.  A  suit  had  been  brought 
against  this  Greek  Catholic  Church  and  prosecuted  to  judg- 
ment, involving  the  right  of  the  congregation  to  discharge  its 
priest  for  violation  of  contract.  In  a  suit  in  equity  brought 
by  the  members  of  the  congregation  who  adhered  to  the  United 
Greek  Catholic  Church  to  enjoin  the  members  in  control  from 
using  the  church  property  for  the  practice  of  the  worship  and 
forms  of  the  Orthodox  Greek  Catholic  Church,  the  lower  court 
decided  that  the  property  had  been  acquired  for  the  purpose 
of  practicing  the  worship  and  forms  of  the  Unilid  Greek 
Catholic  Church  and  that  it  was  impressed  with  a  trust  for 


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620  INDEX. 

CHURCH  LAW— continued. 

that  purpose;  that  the  prior  suit  was  not  res  adjudicata;  and 
awarded  the  relief  prayed  for.  Held,  no  error.  Xioiako  ▼• 
Petnsluh  1. 

CITIES. 

1.  Councilmen — Disclosure  of  interest — Quo  warranto — Act 
of  June  ^,  IdlS,  P.  L,  668. 

A  writ  of  quo  warranto  issued  under  the  provisions  of  Sec- 
tion 9,  Article  IV,  of  the  Act  of  June  27, 1913,  P.  L.  668,  Sec 
9,  providing  for  the  ousting  of  councilman  who  should  vote 
without  disclosing  any  i)er3onal  or  private  interest  in  the  meas- 
ure voted  upon,  was  held  properly  quashed,  where  all  that  ap- 
peared was  that  the  councilmen  in  question  had  voted  for  a 
tenant  as  janitor  of  a  municipal  building  afid  that  the  tenant 
was  at  the  time  of  the  election  indebted  to  him  for  rent.  Ooau 
▼*  Strtokler,  60. 

COAL. 

1.  Coal  lands — Receipts — Explanation — Bvidenco^^Legal  ef- 
fect of  receipt — Excessive  verdict — Motion  for  new  trial-^ 
Charge  of  court — Failure  to  request — Contracts — Suretyship. 
Pittsbursh  Blooli  Coal  Go.  ▼.  OUver  Goal  Co^  290. 

COAL  LEASES,  §ee  Leases. 

coionssioNS. 

1.  Executors  and  administrators — Joint  will — Surcharge-^ 
Failure  to  file  account.    Spiiacer'a  Estate,  46. 

CONSTITUTIONAL  LAW. 

1.  Constitution  of  United  States,  Fourteenth  Amendment — 
Constitution  of  Pennsylvania,  Article  I,  Section  10;  Article 
III,  Sections  16  and  21 — Property  rights — Payment  of  money 
by  State  without  appropriation — Limitation  of  action  againsi 
corporation — Banks  and  hanhing  —  Deposits  —  Failure  to  de* 
mand  money  within  thirty  years— Payment  to  State — Deposi- 
toi^s  right  against  State — Contract  subject  to  statute — Act  of 
April  17, 1872,  P.  L.  62^-7 alidity-^ Act  of  May  11, 1909,  P.  L. 
519 — Affidavit  of  defense — Insufficient  averments. 

Every  sovereign  state  has  jurisdiction  to  take  charge  of  ap- 
parently abandoned  or  unclaimed  property. 

The  Act  of  April  17,  1872,  P.  L.  62,  providing  that  'Svhere 
any  depositor  with  any  savings  fund,  savings  institution  or 
savings  bank  whatsoever,  or  his  legal  representatives,  shall 


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CONSTITUTIONAL  LAW^continued. 

omit  to  make  any  demand  for  the  amount  deposited  by  him, 
or  for  any  part  thereof,  for  the  space  of  thirty  years  after  the 

last  deposit  or  payment  was  made  by  or  to  him" such 

funds  shall  be  paid  by  the  bank  to  the  State  and  thereafter 
the  depositor  may  recover  same  from  the  State,  does  not  vio- 
late the  Fourteenth  Amendment  of  the  Constitution  of  the 
United  States,  or  the  10th  Section  of  Article  I  of  the  Con- 
gitution  of  Pennsylvania  in  that  it  deprives  a  person  of  prop- 
erty without  due  process  of  law,  the  rights  of  the  depositor 
being  amply  protected  by  giving  him  a  cause  of  action  against 
the  Commonwealth,  which,  because  of  its  power  of  taxation,  is 
always  solvent  and  the  best  of  security. 

A  court  will  never  heed  objections  to  the  constitutionality  of 
an  act  of  assembly  unless  the  complainants  are  affected  by  the 
particular  feature  alleged  to  be  in  conflict  with  the  Constitu- 
tion. 

In  an  action  by  the  Commonwealth  against  a  banking  insti- 
tution to  recover  deposits  in  its  hands  after  thirty  years  have 
elapsed  from  the  last  addition  to  or  payment  therefrom  it  will 
be  presumed,  in  the  absence  of  an  averment  to  the  contrary  in 
the  affidavits  of  defense,  that  all  the  deposits  in  controversy 
were  made  subsequent  to  the  passage  of  the  Act  of  1872,  and 
that  the  respective  depositors  acted  with  full  knowledge  of  the 
provisions  of  said  act,  and  in  view  of  such  presumption  there 
is  no  merit  in  the  contention  that  the  act  is  defective  in  fail- 
ing to  provide,  as  in  the  case  of  an  escheat,  for  notice  by  pub- 
lication or  otherwise  to  the  owner. 

In  such  case  the  contract  of  a  depositor  must  be  treated  as 
subject  to  the  terms  of  the  Act  of  1872,  and  the  proceeding  is 
therefore  not  an  impairment  of  the  obligations  of  the  contract. 

The  question  whether  the  failure  of  the  Act  of  1872  to  per- 
mit a  depositor  to  claim  interest  from  the  State  renders  the 
act  invalid,  can  be  raised  only  by  the  depositor  and  not  by  the 
bank  in  an  action  against  it  by  the  Commonwealth. 

The  Act  of  1872  is  not  contrary  to  Article  III,  Section  16,  of 
the  Constitution  of  Pennsylvania  in  that  it  attempts  to  author- 
ize the  payment  of  money  by  the  State  treasurer  without  spe- 
cial appropriation.  Such  provision  of  the  Constitution  simply 
means  that  the  public  funds  are  not  to  be  expended  in  any 
way  except  as  directed  by  the  law-making  power,  and  does  not 
intend  to  prevent  the  legislature  from  providing  a  special 
fund  to  be  paid  out  in  a  designated  manner,  or  to  prevent  the 
law-making  power  from  pledging  unappropriated  funds  for  the 
.  return  of  moneys  taken  into  the  custody  of  the  State  under 


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CONSTITUTIONAL  JAW-^cotUinued. 

such  act,  concerning  which  the  Commonwealth  asserts  no  right 
or  title  paramount  to  that  of  the  original  owner. 

The  Act  of  May  11,  1W9,  P.  L.  619,  does  not  impliedly  re- 
peal the  provisions  for  repayment  contained  in  the  Act  of 
1872. 

The  Act  of  1872  applies  to  all  hanking  institutions,  whether 
incorporated  or  otherwise,  and  is  not  a  statute  of  limitations 
hut  rather  an  enactment  for  the  protection  of  a  sarings  bank 
against  liability  after  it  has  paid  over  a  deposit  to  the  State 
treasurer,  and  such  act  is  not  therefor  violative  of  Article  HE, 
Section  21  of  the  Constitution  of  Pennsylvania  in  that  it  pre- 
scribes a  limitation  of  time  within  whitjh  an  action  may  be 
brought  against  a  corporation  different  from  the  general  laws 
regulating  actions  against  natural  persons.  Ovmu  ▼•  Dollar 
SavtagB  Bank,  138. 

2.  Constitution  of  Pennsylvania,  Art.  Ill,  Sees.  7  and  11, 
Art.  IX,  Sec.  7,  and  Art.  I,  Sec.  1 — DeclaraHon  of  Rights — 
Local  and  special  laws — Gratuities — Contractors  —  Encroach- 
ment on  judicial  prerogatives — Counties  —  Contracts  —  Work 
done  under  unconstitutional  act — Curative  act — Constitution- 
ality^Acts  of  May  11, 1909,  P.  L.  606,  and  April  iO,  1917,  P. 
L.  91 — Statutes — Construction — BiU  in  equity — Injunction — 
Dismissal. 

All  presumptions  must  be  drawn  in  favor  of  the  validity  of 
an  act  and  the  propriety  of  the  legislative  intention. 

The  courts  are  loath  to  hold  curative  acts  to  be  special  or 
local  legislation  when  they  are  drawn  to  apply  to  all  persons, 
things  or  subjects  affected  by  the  conditions  to  be  remedied. 

Where  an  act  relating  to  counties  in  terms  applies  to  all 
counties  in  the  State,  it  is  presumptively  a  general  statute. 

Where  the  legislature  has  power  to  enact  the  substance  of  the 
matter  covered  by  a  statute  which  has  been  declared  void  be- 
cause unconstitutional  in  form,  it  may  subsequently  ratify 
and  make  legal  anything  done  under  the  prior  void  legislation 
which  it  might  previously  have  authorized  in  due  form.  The 
authority  of  the  legislature  to  ratify  whatever  it  might  have 
authorized  is  beyond  question. 

The  Act  of  April  20, 1917,  P.  L.  91,  providing  that  whenever 
any  county  has  entered  into  a  contract  for  the  construction  of 
a  public  highway  bridge  or  tunnel  and  the  same  has  been  com- 
pleted in  whole  or  in  part,  but  (the  county)  was  without 
power  to  pay  for  the  work  which  had  been  actually  done  (be- 
cause the  act  under  which  such  work  was  done  had  been  de* 
dared  unconstitutional),  such  contract  is  valid  and  binding 


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INDEX.  623 

CONSTITUTIONAL  LAW--con««i«6A 

on  the  counlgr  to  the  extent  only  that  such  work  and  construc- 
tion was  done  or  made  prior  to  the  date  on  which  gaid  act  was 
declared  unconstitutional,  and  providing  for  the  payment  of 
such  work  from  the  county  treasury,  is  not  a  local  or  special 
law  in  violation  of  Article  III,  Section  7,  of  the  Constitution 
and  is  valid. 

Sample  v.  Pittsburgh,  212  Pa.  583,  distinguished. 

The  Act  of  1917  does  not  offend  against  Article  III,  Section 
11,  of  the  Constitution,  prohibiting  legislation  giving  extra 
compensation  to  any  public  officer  or  contractor  after  services 
shall  have  been  rendered  or  contract  made  or  providing  for 
the  payment  of  any  claim  against  the  Commonwealth  without 
previous  authority  of  law,  since  such  act  applies  to  counties 
and  not  to  claims  against  the  Commonwealth,  and  makes  no 
provision  for  extra  compensation  but  merely  for  compensation 
for  work  not  paid  for. 

The  Act  of  1917  does  not  treat  the  obligations  with  which  it 
deals  as  gratuities,  such  as  contemplated  by  the  constitutional 
inhibition  in  Article  IX,  Section  7,  of  the  Constitution,  but 
as  moral  obligations  that  have  ceased  to  bo  legal  ones  merely 
because  of  defects  in  the  statute  which  authorized  them. 

The  legislature  may  impose  a  tax  to  pay  the  expense  of  a 
public  improvement  which  had  been  made  under  invalid  au- 
thority>  and  an  assessment  for  that  purpose,  or  payment  for 
such  improvement  from  the  moneys  of  the  public  treasury 
raised  by  general  taxation  or  otherwise,  is  not  a  taking  or 
derivation  of  property,  and  the  Act  of  1917  is  not  therefore 
violative  of  Article  I,  Section  1,  of  the  Constitution. 

The  Act  of  1917  is  a  curative  act  and  does  no  more  than  to 
effectively  authorize  (within  the  restrictions  of  the  statute) 
what  had  previously  been  defectively  authorized  by  the  Act  of 
May  11,  1909,  P.  L.  506,  and  does  not  attempt  to  decide  any 
judicial  question,  and  is  not  an  assumption  by  the  legislature 
of  judicial  powers. 

County  commissioners  entered  into  a  contract  under  au- 
thority of  the  Act  of  May  11, 1909,  P.  L.  506,  for  the  construc- 
tion of  a  public  highway  tunnel.  Before  the  completion  of  the 
work  the  Act  of  1909  was  declared  unconstitutional  by  the 
Supreme  Court  by  reason  of  insufficiency  of  its  title.  After 
the  passage  of  the  curative  Act  of  April  20,  1917,  P.  L.  91>  a 
taxpayer's  bill  was  filed  to  enjoin  payment  to  the  contractor 
for  work  done  on  such  tunnel  prior  to  the  date  on  which  the 
Act  of  1909  was  declared  unconstitutional,  on  the  ground  that 


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624  INDEX. 

CONSTITUTIONAL  LAW— continued. 

the  Act  of  1917  was  unconstitutional.    Held,  the  bill  was  proi^ 
erly  dismissed.    KeiuMdj  ▼•  Mejr«r,  306. 

3.  Constitution  of  Pennsylvania — Schedule  to  the  Constitu- 
tion, Sec,  H — Judicial  districts — Designation — Act  of  April 
fSi,  1917,  P.  L.  95— Validity. 

Section  14  of  the  Schedule  to  the  Constitution  of  Pennayl- 
vania,  providing:  that  the  general  assembly  shall  at  the  next 
succeeding  session  after  each  decennial  census  and  not  oftener^ 
designate  the  several  judicial  districts  as  required  by  this  Con- 
stitution, is  mandatory  in  form,  and  indicates  a  clear  intention 
on  the  part  of  the  framers  of  the  Constitution,  and  of  the  peo- 
ple who  adopted  it,  that  judicial  apportionment  acts  are  to  be 
passed  at  definitely  designated  sessions  of  the  legislature. 

What  the  Constitution  specifically  requires  to  be  done  by 
the  legislature  at  a  definitely  designated  session  cannot  be  done 
at  any  other. 

It  is  always  to  be  presumed  that  the  legislature  performs 
the  duties  enjoined  upon  it  by  the  Constitution,  and  when  a 
session  immediately  succeeding  a  decennial  census  is  allowed 
to  pass  without  the  enactment  of  a  judicial  apportionment  act, 
a  fair  presumption  is  that  the  legislature  intended  to  readopt 
the  existing  judicial  apportionment  for  the  succeeding  ten 
years.  In  such  case  the  judicial  districts  of  the  State  as  then 
constituted  must  continue  until  the  session  next  succeeding 
the  next  decennial  census. 

The  Act  of  April  24,  1917,  P.  L.  95,  designating  the  several 
judicial  districts  of  the  Commonwealth  and  providing  for  the 
election  and  commission  of  judges  learned  in  the  law  therefor, 
violates  Section  14  of  the  Schedule  to  the  Constitution,  in  that 
it  was  not  passed  at  the  next  session  of  the  legislature  suc- 
ceeding a  decennial  census  and  is  void.  lfo«eker  ▼•  ^MToods, 
160. 

4.  Elections — Judges  —  Orphans'  Court  judges  —  Const,  of 
Penna,,  Art,  7,  Sec,  25,  and  Art.  VIII,  Sec.  2--Constitutional 
amendments  of  1909,  P,  L.  9It8—Time  of  election.  Buckley  t. 
Holmes,  176. 

CONTRACTS. 

1.  AcUon  on  several  contract — Presumption'^Set'Off — Joint 
deht — Affidavit  of  defense — Insufficient  averments — Corpora- 
tion defendant — Affidavit  hy  person  not  offifCer — Insufficiency 
—Act  of  May  U,  1915,  P.  L.  JtSB—PfUctice,  C.P, 

A  claim  due  from  plaintiff  and  others,  jbintly,  cannot  bo 
set  off  in  an  action  of  assumpsit  brought  by  plaintiff  alone, 


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INDEX.  625 

CONTRACTS— con^mtiecf. 

be«attse  to  allow  such  a  setoff  would  compel  the  latter  to  pi^ 
indiyidually  a  debt  for  which  he  is  liable  only  when  called 
upon  jointly  with  others. 

Two  or  more  persons  sued  jointly  may  set  off  a  debt  due  by 
the  plaintiff  to  any  one  of  them,  and  one  of  two  joint  obligees, 
with  the  consent  of  the  other^  may  use  the  obligation  as  an 
equitable  defense  in  an  action  by  the  obligor  against  one  of 
diem  alone. 

At  common  law  there  are  three  distinct  forms  of  obligations 
ex  contractu:  (1)  joint,  (2)  several,  and  (3)  joint  and  several. 
In  an  action  on  the  first,  it  was  necessary  to  sue  all  the  obligors 
together,  or  the  survivors  of  them ;  on  the  second,  the  obligors 
had  to  be  sued  separately ;  but  on  the  third,  the  plaintiff  could 
elect  to  sue  separately  or  jointly. 

The  question  whether  a  contractual  promise,  made  by  two 
or  more  persons,  is  joint,  several,  or  joint  and  several,  depends 
upon  the  intention  of  the  parties  as  evidenced  by  the  language 
employed  in  the  agreement  under  consideration,  the  general 
rule  being  that,  in  the  absence  of  an  apparent  intent  to  the 
contrary,  such  promises  are  presumed  to  be  joint,  and  not 
several,  or  joint  and  several. 

The  Practice  Act  of  May  14, 1915,  P.  L.  483,  providing  that 
affidavits  of  defense  shall  be  sworn  to  by  tlie  defendant  or  some 
person  having  knowledge  of  tlie  facts,  does  not  change  the  re- 
quirements theretofore  existing  for  such  affidavits  when  made 
by  agents  of  corporations,  who  are  not  regular  officers  acting 
within  the  scope  of  their  authority. 

An  affidavit  of  defense  filed  on  behalf  of  a  corporation  is  in- 
sufficient where  it  is  not  made  by  an  officer  of  the  corporation 
but  by  a  person  styling  himself  as  "chief  accountant,"  where 
there  is  notiiing  to  show  why  it  is  not  made  by  an  officer  of 
the  corporation,  and  there  is  no  averment  that  the  affiant  had 
personal  knowledge  of  the  facts  averred. 

In  an  action  on  a  written  contract  to  recover  for  natural 
gas  sold  defendant  company,  defendant  filed  an  affidavit  of  de- 
fense, and  a  supplemental  affidavit,  averring  by  way  of  set-off 
that  prior  to  the  contract  in  suit  the  plaintiff  and  five  other 
persons  entered  into  a  written  contract  with  defendant  whereby 
the  former  sold  the  latter  all  the  gas  from  a  certain  other  tract 
of  land,  but  thereafter  diverted  such  gas  belonging  to  defend- 
ant to  an  amount  in  value  exceeding  plaintiff's  present  claim. 
The  affidavit  of  defense  was  made  by  the  chief  accountant  of 
the  defendant  but  did  not  state  that  he  was  an  officer  of  the 
corporation.    Held,  judgment  was  properly  entered  for  plain- 

VoL.  rrr.TX — 10 


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626  INDEX, 

(X)NTRAOTS— con^tmied. 

tiff  for  want  of  a  sufficient  affidavit  of  defense.    Mimts  ▼•  Tii- 
Covntj  Hat.  Chui  Co^  477. 

2.  Bailment — WrUten  contracts  —  Purchaee-i^rice  —  Agree- 
ment as  to  purckase'price — Insufficiency — Plaintiff's  statement 
— Quantum  meruit, 

A  manufacturer  of  shirts  sent  a  circular  to  yarious  persons, 
engaged  in  the  business  of  trimming  windows,  offering  prizes 
for  designs,  and  requesting  photographs  thereof.  The  owner 
of  certain  designs  mailed  photographs  of  them  to  plaintiff, 
with  a  formula  for  making  tlie  substance  out  of  which  the 
designs  were  to  be  constructed  and  a  notice  on  the  backs  of  the 
photographs  that  the  designs  were  valuable,  and  that  the  photo- 
graphs were  to  be  returned.  On  the  back  of  one  of  the  photo- 
graphs was  an  endorsement  that  the  value  of  the  original  de- 
sign was  $2,000,  and  on  the  other  photograph  that  it  was  worth 
$3,000,  and  that  the  formula  was  worth  $5,000.  The  owner  of 
the  photographs  wrote  plaintiff  that  if  the  conditions  on  the 
backs  of  the  photographs  were  acceptable  they  could  use  them 
in  their  exhibits,  otherwise  they  should  return  them.  The 
manufacturer  replied  merely  stating  that  the  photographs  and 
letter  had  been  received.  The  photographs  were  used  in  the 
exhibition  were  not  returned  to  the  owner  and  were  subse- 
quently lost  In  an  action  on  an  express  contract  to  recover 
the  amount  endorsed  on  the  reverse  side  of  the  photographs 
as  their  value  and  that  of  the  formula,  there  was  no  evidence 
that  defendant's  attention  was  ever  drawn  to  the  endorsement 
or  that  he  ever  agreed  to  pay  the  amounts  therein  stipulated. 
Held,  (1)  the  warning  contained  in  plaintiffs  letter  to  defend- 
ant was  sufficient  to  indicate  that  the  photographs  and  formula 
were  valuable  and  merely  bailed  to  defendant,  and  defendants 
are  liable  for  their  reasonable  worth,  if  properly  declared  for, 
(2)  the  writing  on  the  back  of  the  photographs  and  the  accept- 
ance and  use  thereof  did  not  constitute  a  contract  to  pay  the 
amount  expressed  in  such  writing,  and  (3)  a  compulsory  non- 
suit was  pr(^)erly  entered.  Aland  ▼•  Oluett,  Peabody  Jt  Co^ 
364. 

3.  BUI  in  equity — Dismissal — Findings  of  Puhlic  Service 
Commission — Appeal — Practice,  C,  P. — Act  of  July  26,  191S, 
P.  L  1S7U — Jurisdiction,  C.  P, — Puhlic  Service  Commission-^- 
Complaint — Street  railways  —  Change  of  rates — Reasonable' 
ness — Boroughs,    8t*  Clair  Boro.  ▼•  T.  SiJP.  Eleo.  By.  Co.,  462. 

4.  Contracts  for  benefit  of  third  person — Beneficiary's  right 
to  sue — Evidence — Deeds — Consideration — Parol  evidence  of 
different  consideration — Witnesses — Competency  —  Testimony 


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001ilTIiACTS--conttnued. 

of  surviving  party— Act  of  May  23,  1887,  P.  L.  168,  Sec.  6, 
Clause  e. 

To  the  rule  that  at  common  law  no  one  oould  maintain  an 
action  upon  a  contract  to  which  he  was  not  a  party,  there  are 
exceptions  where  the  promise  to  pay  the  debt  of  a  third  person 
rests  upon  the  fact  that  money  or  proi)erty  is  placed  in  the 
hands  of  the  promisor  for  that  particular  purpose,  and  where 
one  buys  out  the  stock  of  a  tradesman  and  undertakes  to  take 
the  place,  fill  the  contracts  and  pay  the  debts  of  his  vendor. 

Parol  evidence  is  comx)etent  for  the  purpose  of  showing  that 
the  consideration  for  the  conveyance  of  real  estate  is  other  than 
that  expressed  in  the  deed. 

To  disqualify  a  surviving  party  to  a  contract  from  testify- 
ing, he  must  not  only  be  a  surviving  and  remaining  party  but 
must  have  an  interest  adverse  to  the  right  of  the  deceased 
party,  under  the  Act  of  May  23,  1887,  P.  L.  158,  section  6, 
clause  e.  It  is  the  adverse  interest,  not  the  adverse  testimony 
that  disqualifies  a  witness. 

Where  a  person  conveys  real  estate  on  the  grantee's  express 
oral  promise  to  pay,  to  a  third  person,  the  amount  received 
from  the  subsequent  sale  of  the  property,  and  thereafter  the 
grantee  dies  without  having  fulfilled  the  promise,  the  grantor 
is  a  competent  witness  to  testify  in  behalf  of  the  beneficiary's 
claim  against  the  grantee's  estate. 

A  claimant  against  a  decedent's  estate  presented  evidence 
that  a  conveyance  of  an  interest  in  certain  real  estate  had  been 
made  by  claimant's  mother  to  decedent  in  her  lifetime  on  de- 
cedent's oral  promise  that  in  case  she  should  ^ell  it  during  her 
lifetime  she  would  pay  the  claimant  the  full  amount  invested 
therein  by  plaintiffs  father,  and  if  she  did  not  sell  same  would 
bequeath  said  amount  to  claimant.  The  deed  recited  a  valua- 
ble consideration,  but  there  was  evidence  that  no  actual  con- 
sideration had  been  paid.  Decedent  did  not  sell  the  real  estate 
and  at  her  death  bequeathed  $1,000  to  claimant.  Claimant's 
mother  testified  as  to  such  oral  contract,  although  the  existence 
thereof  was  denied  by  decedent's  children,  who  claimed  that 
at  the  time  of  the  delivery  of  the  deed  there  was  a  default  in 
payment  of  the  money  due  on  a  mortgage  and  that  the  prop- 
erty was  conveyed  to  prevent  foreclosure  proceedings.  The 
auditing  judge  allowed  the  claim  less  the  amount  of  the  legacy 
of  $1,000.  Held,  (1)  claimant  was  entitled  to  recover  on  the 
contract,  being  the  only  person  beneficially  interested  in  the 
payment  of  the  money,  (2)  claimant's  mother  was  a  competent 
witness  to  prove  the  oral  contract  as  she  was  not  an  adverse 


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CONTRACTS— conhnuec?. 

party,  and  (8)  there  was  sufficient  evidence  to  sustain  the 
finding  of  the  auditing  judge  in  claimant's  favor  and  the  find- 
ing will  be  sustained. 

Hoffa  V.  Hoffa,  38  Pa.  Superior  Ct.  356,  approved.  Bd- 
BiiimcUoii'a  Estate,  429. 

5.  Contract  subject  to  statute — Acts  of  April  17, 1872,  P.  L. 
62,  and  May  11,  1909,  P.  L.  519^Validity— Affidavits  of  de- 
fense—  Insufficient  a/verments  —  Const,  of  U,  8.  Fourteenth 
Amendment — Const,  of  Penna,,  Art.  I,  Sec.  10,  Art.  Ill,  Sees. 
16  a/nd  21 — Constitutional  law — Property  rights — Payment  of 
money  by  State  without  appropriation — Limitation  of  action 
against  corporation — Banks  and  banking — Deposits — Failure 
to  demand  money  within  thirty  years — Payment  to  State — 
Depositor's  right  against  State.  Com.  ▼•  Dollar  SaTtags 
Bank,  138. 

6.  Counties — Work  done  under  unconstitutional  act — Cura* 
tive  act— Constitutionality— Ads  of  May  11,  1909,  P.  L.  506, 
and  April  20, 1917,  P.  L.  91.    Kenmedj  ▼.  Mejer,  306. 

7.  Debt  and  interest — Payment  on  account — Application  of 
payment  to  principal — Case  for  jury. 

Except  where  otherwise  agreed  a  payment  made  on  an  in- 
debtedness consisting  of  principal  and  interest,  not  applied  by 
either  the  debtor  or  creditor,  will  be  applied  first  to  interest 
due  and  then  to  principal. 

A  debtor  paying  money  to  his  creditor  has  the  primary  and 
paramount  right  to  direct  the  application  of  his  money  to  such 
items  or  demands  as  he  chooses,  provided  the  payment  is  a 
voluntaiy  one. 

While  a  debtor,  after  making  payments,  may  not  demand 
their  application  to  principal  as  against  interest,  yet  he  may  so 
stipulate  in  making  a  payment,  and  if  it  is  accepted  without 
immediate  protest  such  acceptance  will  be  tantanaount  to  an 
agreement  to  apply  the  money  as  directed,  the  creditor  being 
bound  accordingly.  After  an  appropriation  has  been  made  by 
the  debtor  and  expressly  or  impliedly  assented  to  by  the  credi- 
tor, the  law  will  not  interfere  on  behalf  of  the  latter,  upon 
equitable  or  other  grounds,  for  such  circumstances  constitute 
a  contractual  situation,  and  courts  will  not  set  aside  agree- 
ments unless  they  are  without  consideration,  illegal,  against 
public  policy,  made  without  contractual  capacity>  or  induced 
by  fraud,  accident  or  mistake  of  fact. 

Not  decided  whether  a  creditor,  when  partial  payment  is 
made  on  a  debt,  coupled  with  a  request  or  direction  to  apply 


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CONTRACTS— con^tnwed 

the  amount  to  the  principal  rather  than  to  the  accrued  inter- 
est, has  a  right  at  once  to  refuse  so  to  do. 

Defendant  was  indebted  to  plaintiff  and  made  two  payments, 
one  $4,000  and  the  other  $1,000,  on  account.  When  defendant 
paid  plaintiff  the  latter  sum  he  explicitly  directed  in  writing 
that  it  should  be  applied  to  the  principal  and  in  the  same  letter 
esqpressed  the  wish  that  the  sum  of  $4,000,  previously  paid, 
should  be  likewise  applied.  Plaintiff  acknowledged  receipt  of 
the  $1,000,  noting  that  it  was  to  be  appropriated  to  the  princi- 
pal; but  objected  to  a  like  application  of  the  $4,000.  The 
jury  found  specially  that  the  $4,000  payment  had  been  prop- 
erly applied  by  plaintiff  to  interest,  but  that  the  $1,000  had 
been  correctly  applied  on  the  principal,  and  rendered  a  gen- 
eral verdict  on  that  basis  upon  which  judgment  was  entered. 
Held,  no  error.    Kama  ▼•  Kaaa,  583. 

8.  Municipal  contracts — Township  of  second  class — Water 
supply — Acts  ultra  vires — Estoppel — Act  of  May  25,  1907,  P, 
L.  2SL 

Townships  of  the  second  class  are  not  properly  to  be  re- 
garded as  municipal  corporations,  nor  do  they  possess  the  im- 
plied powers  of  such  corporations.  They  are  only  involuntary 
quasi  corporations  standing  low  in  the  scale  of  corporate  ex- 
istence and  they  can  exercise  only  such  powers  as  are  expressly 
conferred  upon  them  by  statute. 

One  who  contracts  with  the  representatives  of  a  municipal- 
ity, especially  with  those  having  the  very  limited  powers  of  a 
quasi  corporation  such  as  a  township,  is  bound  to  know  the 
limitations  of  the  powers  of  those  ofiScials  in  executing  the 
contract. 

In  an  action  brought  by  a  water  supply  company  against  a 
township  of  the  second  class  to  recover  for  the  rental  of  water 
hydrants,  installed  under  a  contract  entered  into  between  the 
water  company  and  the  supervisors  of  the  township,  in  pur- 
suance of  the  Act  of  May  25,  1907,  P.  L.  231,  providing  that, 
upon  the  petition  of  the  owners  of  a  majority  of  the  lineal 
feet  frontage  along  a  highway,  the  supervisors  may  contract 
with  water  companies  for  the  placing  of  hydrants  along  said 
highway,  evidence  to  show  that  the  petition  for  the  installa- 
tion of  the  hydrants  was  not  signed  by  a  majority  of  the  owners 
abutting  upon  the  highway  was  erroneously  excluded  as  im- 
material, and  the  trial  judge  erred  in  directing  a  verdict  for 
plaintiff. 

In  such  case  the  supervisors  had  no  authority  to  provide 
water  supply  for  fire  protection,  except  upon  the  teraos  and 


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CO^THACTS— continued. 

conditions  set  forili  iu  the  statute;  the  plaintiff  was  honnd  to 
know  and  recognize  the  limitations  upon  the  powers  of  the 
supervisors  and  could  not  invoke  the  principle  of  estoppel 
after  the  work  had  heen  done  so  as  to  charge  the  township 
with  liability  therefor,  where  it  appeared  that  the  township  as 
an  organic  unit  received  no  benefit  from  the  work,  but  certain 
individuals  only,  were  benefited. 

It  seems  that,  in  such  case,  if  the  suit  had  been  brought 
against  the  abutting  owners  who  received  the  benefits,  they 
would  be  estopped  from  asserting  the  invalidity  of  the  con- 
tract, it  having  been  performed  in  so  far  as  they  were  con- 
cerned.    TreTorton  Water  Svppljr  Go.  ▼•  Zerbe  Twp.,  31. 

9.  Suretyship — Coal  lands — Receipts  —  Explanation  —  Evi- 
dence— Legal  effect  of  receipt — Admission  in  pleadings — Ex- 
cessive verdict — Motion  for  new  trial — Charge  of  court — Fail- 
ure to  request. 

In  an  action  by  a  lessor  of  coal  lands  on  a  joint  bond  given 
by  the  lessee  as  principal,  and  a  surety,  one  of  the  conditions 
being  for  the  payment  of  royalty  upon  coal  actually  mined,  the 
controlling  question  was  the  effect  to  be  given  a  certain  receipt 
and  the  evidence  relating  thereto.  The  receipt  was  given  by 
the  plaintiff  company  to  the  defendant's  president  as  trustee 
of  insurance  money  and  was  in  the  following  form :  '^Received 
of  [plaintiff's  president,  naming  him]  Trustee,  One  thousand 
seventy-five  Dollars  in  payment  as  follows:  By  direction  of 
Oliver  Coal  Co.  for  its  account:  $376.27  BaL  Nov.  1912  royal- 
ty; $344.30  on  1912.  Minimum  under  lease,  $279.53  for  Jany. 
1913  royalty;  $75  for  boiler  tube  cleaner."  A  fire  had  oc- 
curred on  the  leased  premises  and  the  insurance  company  paid 
the  amount  of  the  loss  by  check  to  the  joint  order  of  the  lessor 
and  lessee,  but  before  the  latter  would  endorse  the  check  it  re- 
quired a  trusteeship  to  be  established  with  the  plaintiff's  presi- 
dent as  trustee.  The  receipt  in  question  represented  the  dis- 
position of  a  part  of  the  insurance  money  by  the  trustee. 
Plaintiff's  president  testified  that  the  receipt  was  given  in  the 
office  of  the  president  of  the  defendant  company  and  was 
drawn  up  in  accordance  with  the  direction  of  defendant's  presi- 
dent^  treasurer  and  general  manager,  and  that  the  receipt  was 
not  intended  as  a  receipt  in  full,  but  that  at  the  time  it  was 
given  there  was  overdue  from  the  defendant  company  to  the 
plaintiff  $2,600  for  coal  actually  mined.  Under  defendant's 
objection  the  court  admitted  in  evidence  a  paragraph  of  plain- 
tiff's statement  setting  forth  that  such  amount  was  due  for 
royalties  on  coal  mined,  on  the  ground  that  the  averments  of 


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CONTRACTS— coiUin«6rf. 

such  paragraph  were  not  sufficiently  or  specifically  denied  in. 
the  affidavit  of  defense.  Held,  (1)  such  evidence  was  properly 
admitted,  and  (2)  the  receipt  was  not  conclusive  against  the 
right  of  the  plaintiff  to  recover^  and  the  case  was  for  the  jury 
and  a  verdict  for  the  plaintiff  will  be  sustained. 

In  such  case  it  could  not  be  successfully  contended  on  mo« 
tion  for  judgment  non  obstante  veredicto  that  the  receipt  was, 
at  any  rate,  in  full  for  all  coal  mined  during  the  month  of 
November,  1912,  and  that  the  verdict  of  the  jury  included  $500 
for  royalty  on  coal  mined  during  that  month,  and  was  er- 
roneous to  that  extent,  where  it  was  not  clear  from  the  record 
that  the  jury  included  such  item  in  their  verdict;  if  the  jury 
had  included  such  item  the  proper  method  for  correction 
thereof  was  by  a  motion  for  a  new  trial. 

In  such  case  the  complaint  cannot  be  made  that  the  trial 
judge  did  not  sufficiently  instruct  the  jury  as  to  the  proper 
effect  to  be  given  to  the  receipt  where  the  question  of  the  effect 
of  the  receipt  did  not  appear  to  have  been  raised  upon  trial, 
and  it  did  appear  that  plaintiff's  counsel  presented  thirteen 
points  for  charge  but  none  of  them  related  to  the  receipt. 

Assignments  of  error  covering  questions  not  included  in  the 
statement  of  questions  involved  will  not  be  considered  on  ap- 
peal.    Pittsbvrsk  Block  Coal  Go.  ▼•  Oliver  Coal  Co^  290. 

10.  Written  contract — Subsequent  and  parol  agreement  — 
Advancing  time  for  completing  work — Absence  of  provision  as 
to  increased  compensation — Quantum  meruit  for  increased  cost 
— Practice,  C,  P, — Statement  of  claim — Insufficiencu — Affi- 
davit of  defense  in  nature  of  demurrer — Practice  Act  of  May 

u,  1915,  P.  L.  m. 

The  effect  of  an  affidavit  of  defense  in  the  nature  of  a  de- 
murrer filed  under  the  Practice  Act  of  May  14,  1915,  P.  L. 
483,  is  to  test  the  sufficiency  of  the  plaintiff's  statement,  which 
must  be  self-sustaining  and  set  out  a  good  cause  of  action. 

The  legal  effect  of  writings  attached  to  the  pleadings  is  for 
the  court  and  cannot  be  controlled  by  averments  of  the  parties. 

Letters  exchanged  in  confirmation  of  a  verbal  agreement 
will  be  presumed  to  correctly  state  it,  especially  where  they  are 
retained  without  objection. 

A  new  agreement  will  supersede  an  old  one  so  far  as  they 
cannot  be  executed  together. 

Where  a  parol  agreement  entered  into  subsequent  to  the 
execution  of  a  written  contract,  modifies  the  latter  only  in  the 
respect  that  the  work  shall  be  completed  at  an  earlier  date,  a 
recovery  cannot  be  had  on  a  quantum  meruit  for  all  work 


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CONTRACTS— con/tnuerf. 

thereafter  done  on  the  theory  that  the  oriiruud  oontraet  baa 
been  abrogated. 

In  an  action  by  a  construction  company  against  a  lailzoad 
company,  it  was  alleged  that  plaintiff  entered  into  two  written 
contracts  with  the  defendant  to  construct*  two  seotiona  of  a 
railroad  bed  for  defendant  by  December  Ist  All  ci  the  work 
was  completed  on  time,  accepted  and  paid  for.  Plaintiff  fmb- 
sequently  brought  suit  on  an  alleged  verbal  agreement^  made 
during  the  progress  of  the  work,  and  confirmed  by  letters,  con- 
tending that  such  agreement  superseded  the  ^original  contracts. 
The  alleged-  change  was  for  the  completioQ  of  the  work  at 
earlier  dates.  November  7th  as  to  one  contract^  and  October 
7th  as  to  the  other,  thereby  greatly  increasing  the  cost  of  con- 
struction. The  work  wad  not  completed  on  the  eaiiier  dates, 
but  on  December  1st  as  to  the  one  contract,  and  a  week  earlier 
as  to  the  other,  due  to  defendant's  alleged  diktoriness  in  fur- 
nishing rails  required  under  an  independent  verbal  agreement 
made  subsequent  to  the  main  contracts.  The  alleged  new  ar- 
rangement made  no  change  in  the  work  to  be  done  or  the  price 
to  be  paid,  nor  did  it  abrogate  a  provision  for  award  by  de- 
fendant's chief  engineer,  and  plaintiff  sued  on  a  quantum 
meruit.  From  the  time  of  the  commencement  of  the  work 
under  the  new  agreement  plaintiff  gave  notice  from  time  to 
time  that  it  would  expect  additional  compensation.  Held, 
plaintiff's  statement  was  insufficient  and  judgment  was  prop- 
erty entered  for  the  defendant. 

Malone  &  Son  v.  Philadelphia  &  Reading  R.  R.,  157  Pa. 
430,  distinguished.  Bolbart  Oraee  Comt.  Go.  ▼•  ir«  *  W.  By. 
Co.,  241. 

CORPORATIONS. 

1.  Dirfctors— Fight  for  control — lisuanee  of  stock  —  Pur- 
chase hp  directors  present  at  meeting — Right  of  stockholders 
to  participate  in  issue — Setting  aside  of  issue — Trust — Fraud 
^-Remedy  at  Jaw — Eqwity — Jurisdiction — Bill  in  equity  hp 
stockholder — Injunction, 

While  the  general  rule  is  that  a  stockholder  is  not  warranted 
in  proceeding  as  an  individual  to  redress  a  wrong  done  to  the 
corporation,  without  a  formal  demand  and  refusal  of  the  cor- 
poration to  bring  proper  action,  yet  stockholderfe  are  not  re- 
quivBd,  either  in  law  or  in  equity,  to  do  a  vain  or  foolish  thing, 
and  where  the  wrongdoers  are  the  majority  of  the  hotai  of  di- 
rectors, who  committed  the  wrong  complained  of,  it  is  not 
reasonable  to  suppose  that  a  demand  upon  them  to  bring  cor- 


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COEPORATIONS— conftVmed. 

porate  action  would  produce  results,  and  under  such  circum- 
stances stockholders  are  justified  in  instituting  proceedings  in 
their  own  name,  without  first  demanding  action  on  the  part  of 
the  cor|k>rate  officers. 

Where  the  question  of  the  control  of  a  corporation  is  in- 
volved, the  remedy  at  law  for  damages  for  the  improper  sale 
of  stock  is  inadequate,  and  where  an  averment  of  fraud  on  the 
part  of  those  having  management  of  the  company  appears,  as 
against  the  rights  or  the  interest  of  the  stockholders,  a  court 
of  equity  has  jurisdiction  to  inquire  into  the  transaction  and 
make  such  decree  as  the  circumstances  may  warrant. 

The  directors  of  a  corporation  stand  in  the  position  of  trus- 
tees for  the  entire  hody  of  stockholders,  and  while  stock  owned 
hy  a  director  is  his  individual  property,  to  he  dealt  with  as  he 
sees  fit,  yet  when  he  acts  in  his  official  position  he  is  acting 
not  merely  as  an  individual  but  as  representative  of  others 
and  is  prohibited  from  taking  advantage  of  his  position  for 
his  personal  profit  or  benefit  to  the  detriment  of  the  stock- 
holders whom  he  represents. 

The  directors  of  a  corporation  are  bound  to  give  stockholders 
notice  of  a  new  issue  of  stock  and  an  opportunity  to  subscribe 
for  the  stock  in  proportion  to  their  present  holdings,  although 
such  issue  may  be  long  after  the  business  of  the  corporation 
was  begun;  and  where  the  directors  fail  to  give  such  notice, 
but  purchase  the  stock  themselves  for  the  purpose  of  gaining 
control  of  the  corporation,  the  issue  may  be  set  aside  at  the 
instance  of  a  stockholder. 

In  a  suit  in  equity  brought  by  a  stockholder  of  a  brewing 
company  on  behalf  of  himself  and  other  stockholders  who 
might  join,  praying  for  a  declaration  that  a  certain  stock  cer- 
tificate issued  to  a  director  of  the  company  was  invalid,  it  ap- 
peared that  the  stockholders  and  directors  had  been  split  into 
two  factions,  and  that  a  majority  of  the  board  of  directors 
owned  and  controlled  only  a  minority  of  the  stock  while  the 
other  directors  owned  or  controlled  the  majority.  At  a  meet- 
ing of  the  board  attended  by  the  directors  in  sympathy  with 
the  minority  interests,  an  issue  of  250  shares  of  treasury  stock 
was  authorized,  in  pursuance  of  which  the  fifty  shares  in  ques- 
tion were  issued  to  one  of  the  directors  present,  which  gave 
the  directors  voting  for  the  issue  control  of  a  majority  of  the 
itoek.  No  opportunity  was  given  the  other  stockholders,  in- 
cluding the  plaintiff,  to  take  up  any  part  of  the  new  issue. 
DsCnidants  contended  that  the  stock  was  issued  to  put  the  cor- 
poration in  funds  to  pay  a  note  which  tha  company  had  en- 


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634  INDEX. 

CORPORATIONS— con«nue<^ 

dorsed.  There  were  other  assets  available  for  payment  of  the 
note.  Held,  (1)  the  finding  that  the  issue  was  for  the  purpose 
of  gaining  control  of  the  corporation  was  amply  supported  by 
the  evidence;  (2)  even  had  there  been  sufficient  reason  for  the 
issuance  of  the  new  stock,  the  directors  had  no  right  to  sub- 
scribe therefor  without  first  notifying  the  stockholders  and 
giving  them  an  opportunity  to  take  up  the  stock  in  proportion 
to  their  present  holdings;  (3)  under  the  circumstances,  the 
fact  that  no  previous  demand  was  made  by  the  plaintiffs  on 
the  corporation  to  take  action  in  the  matter  is  immaterial,  and 
(4)  the  decree  granting  the  relief  prayed  for  was  properly  en- 
tered.    Oleaa  ▼•  Xittanaimc  Brew.  Oo^  510. 

2.  Foreign  corporations — Capital  —  Bonus  —  Act  of  May  8, 
1901,  P.  L.  150— Taxation.     Com.  ▼•  SohwArsMhlld,  130. 

3.  Management  by  creditors — Sale  of  assets — Purchase  by 
sole  stockholder  and  president — Alleged  fraud — Trusts  a^d 
trustees — BUI  in  equity — Dismissal. 

A  bill  in  equity  brought  by  certain  creditors  of  a  cotpotsl- 
tion  sought  to  impose  liability  on  a  decedent's  estate  on  the 
ground  that  the  decedent's  acquisition  of  the  assets  of  the  cor- 
poration was  a  breach  of  the  relationship  of  trust  and  con- 
fidence in  which  he  stood  to  complainants,  and  fraudulent.  It 
appears  that  deceased  had  been  president  of  the  corporation 
and  owner  of  all  its  stock.  The  corporation  was  placed  in  the 
hands  of  a  receiver  and  thereafter  the  creditors  i>erfected  a 
plan,  in  which  complainants  joined,  under  which  the  receiver 
was  discharged  and  the  creditors  controlled  the  company,  nam- 
ing six  of  its  nine  directors,  and  managed  its  affairs  by  an 
executive  committee  composed  of  three  of  the  six  directors 
they  had  appointed.  The  company  was  imable  to  meet  its 
obligations  and  its  securities  were  sold  at  public  auction,  and 
were  purchased  by  deceased  as  the  highest  bidder.  The  court 
found  on  amply  sufficient  evidence  that  after  the  creditors  as- 
sumed control  deceased  took  no  part  in  the  affairs  of  the  com- 
pany and  had  no  control  over  them,  and  that  deceased  did  not 
procure  the  sale  to  be  made  and  possessed  no  means  to  pre- 
vent its  taking  place.  Held,  (1)  the  mere  fact  that  deceased 
was  the  sole  stockholder  did  not  render  the  transaction  a 
fraud,  (2)  no  relationship  of  trust  and  confidence  existed  be- 
tween deceased  and  complainants  at  the  time  of  the  sale,  and 
(8)  the  bill  was  properly  dismissed.  MeMullin  ▼•  Wastiss- 
koiue  Bstato,  381. 

4.  Names  —  Confusion  of  names  ^-^  Equity.  Pm^ftlmm  Traat 
Co.  ▼•  Safe  D.  *  T.  Co.,  62. 


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CORPORATIONS— con^inticd 

5.  Receivers — Appointment  —  Hostile  interest — BemovaiL 
Com.  ▼•  Kortk  Shore  R.  R.  Co.,  155. 

6.  Receivers — Payments — Losses — Issue  of  unauthorized  cer- 
tificates— Surcliarge — Payments  directed  hy  order  of  court — 
Subsequent  order — Priority, 

Where  a  business  is  being  conducted  at  a  loss  a  receiver  can- 
not take  advantage  of  his  position  and  pay  himself  in  full  at 
the  expense  of  other  creditors,  as  his  equity  is  not  superior  to 
theirs. 

A  receiver  may  properly  be  surcharged  for  the  amount  paid 
by  him  on  unauthorized  certificates  and  for  the  amount  ex- 
pended by  him  in  repayment  of  money  borrowed  without  au- 
thority. 

Where  the  proceeds  of  unauthorized  certificates  and  notes 
went  into  the  business,  a  receiver  surcharged  therefor  has  an 
equitable  claim  equal  to  that  of  other  creditors,  but  is  not  en- 
titled to  priority. 

An  order  of  court  directing  a  receiver  to  continue  the  busi- 
ness, implies  the  authority  to  purchase  supplies  necessary  for 
that  purpose. 

A  receiver  is  not  personally  liable  merely  because  the  busi- 
ness may  have  been  conducted  temporarily  at  a  loss,  especially 
where  he  acted  in  good  faith  and  the  loss  did  not  result  from 
his  misconduct  or  negligence. 

While  a  receiver  will  be  held  to  a  rigid  accountability,  noth- 
ing more  is  required  of  him  than  that  he  act  in  good  faith  and 
exercise  the  discretion  and  prudence  of  ordinarily  careful  men 
in  pursuits  of  similar  character. 

Where  an  order  of  court  expressly  charges  the  funds  in  the 
receiver's  hands  with  the  payment  of  authorized  certificates, 
the  payment  thereof  should  be  made  to  the  holders  prior  to  the 
receiver's  commission  fixed  by  a  subsequent  order  of  court 

Upon  exceptions  to  the  report  of  an  auditor  to  pass  upon  the 
account  of  a  receiver,  it  appeared  that  the  receiver  had  con- 
tinued the  business  under  an  order  of  court,  that  in  some 
months  there  were  losses  and  in  others  profits,  but  that  there 
was  a  total  loss  in  the  conduct  of  the  business  during  the  re- 
ceivership, the  auditor  found  that  some  of  the  expense  in- 
curred in  closing  out  the  business  might  have  been  eliminated 
by  winding  up  the  business  at  an  earlier  date,  but  there  was 
no  finding  as  to  the  amount  of  loss  thereby  sustained,  and  no 
sufficient  evidence  upon  which  such  a  finding  could  have  been 
based.  There  was  no  sufficient  evidence  to  indicate  want  of 
proper  care  and  attention  to  the  business  on  the  part  of  the 


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CORPORATIONS— con^tnuc^. 

receiver.    Held,  the  receiver  was  improperly  surcharged  for 
the  amount  of  the  loss  under  the  receivership. 

In  such  case  where  the  fund  for  distribution  was  not  suffi- 
cient to  pay  in  full  all  the  preferred  claims,  an  order  was  made 
directing  payment  in  full  of  local  taxes,  expenses  of  the  audit, 
costs  of  appeal,  counsel  fees,  payment  of  certificates  authorized 
by  the  court,  and  after  the  payment  of  such  special  claims  di- 
recting the  balance  to  be  distributed  to  the  receiver  to  apply 
upon  his  claim  for  compensation  and  for  the  amount  paid  a 
watchman  whose  appointment  had  been  authorized  by  the 
court    Peuuu  Ems*  Wka.  ▼•  Kew  Cftstle  Stamp  Oo^  ^B. 

COUNCILMEN,  see  Public  Officers. 

COUNTIES. 

1.  Contracts — Work  done  under  unconstUutiondl  aci^^urar 
five  act — Constitutionality — Acts  of  May  11,  1909,  P.  L*  506, 
and  April  20, 1917,  P.  L,  91— Const,  of  Penna.,  Art.  Ill,  Sees. 
7  and  11,  Art.  IX,  Sec.  7,  and  Art.  I,  Sec.  1 — Dedaraiion  of 
rights  —  Local  and  special  laws — Oratuities.  Mmmmn^  ▼• 
Meyer,  306. 

COUNTY  AUDITORS,  see  Public  Officers. 

COURTS. 

1.  Power  over  process — Boroughs — Eminent  dofnain — Parks 
^Appropriation  of  land— Act  of  May  H,  1915,  P.  L.  812'Jfl2 
— Indebtedness  in  excess  of  statutory  limit — Failure  to  submit 
to  vote  of  people — Failure  to  pay — Mandamus.  TiAroy  ▼. 
Fen&dale  Bore.,  321. 

CRIMINAL  LAW. 

1.  Murder — First  degree — Lying  in  wait — Evidence  ^^  Ad- 
verse witness — Cross-examination — Evidence  of  witness's  previ- 
ous statement — Threats — III  feeling  —  Remoteness  —  Admissi- 
bUiiy — Motive — Scope  of  cross-examination  of  defendant — /m- 
proper  remarks  of  difftrict  attorney — Failure  to  object — Dying 
declaration — Conflicting  declarations — Defenses — A  libi  —  New 
trial — After-discovered  evidence — Cumulative  evidence. 

Where  on  the  trial  of  a  homicide  case  one  of  the  Common- 
wealth's witnesses  testifies  at  variance  to  his  previous  state- 
ment, it  is  not  error  to  permit  the  district  attorney  to  cross- 
examine  the  witness  as  to  sueh  statement,  or  to  offer  testimony 
as  to  what  his  previous  statement  was,  for  t^  purpose  of  neu- 


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CRIMINAL  LAW'-continued. 

trahzing  the  effect  of  his  testimony.    The  allowance  of  such 
permission  is  largely  discretionary  with  the  trial  judge. 

The  remoteness  of  threats  may  greatly  impair  their  probative 
force,  but  as  a  rule  it  does  not  affect  their  admissibility. 

On  the  trial  of  an  indictment  for  murder  it  is  competent  for 
the  Commonwealth  to  show  that  the  defendant  had  formerly 
boarded  with  deceased  and  during  such  time  there  had  been 
trouble  between  them  because  of  which  the  deceased  had  or- 
dered the  defendant  from  his  home,  although  such  occurrence 
was  two  and  a  half  years  previous  to  the  homicide.  The  re- 
moteness  goes  to  the  weight  rather  than  the  competency  of  such 
evidence. 

Great  latitude  is  permissible  in  the  cross-examination  of  a 
defendant. 

Where  a  defendant  on  trial  for  murder  testifies  that  he  had 
Jio  motive  or  reason  for  killing  the  deceased,  the  district  attor^ 
ney  may  ask  him  questions  tending  to  prove  motive,  and  in 
that  connection  to  attempt  to  show  that  defendant  blamed  de- 
ceased for  a  wound  inflicted  upon  defendant  by  a  third  party, 
and  defendant  cannot  complain  because  such  examination 
failed  in  its  purpose,  where  it  does  not  appear  that  the  district 
attorney  asked  the  questions  in  bad  faith  or  that  defendant 
was  prejudiced  thereby. 

It  was  improper  for  the  district  attorney  to  remark  during 
such  examination,  ^We  believe  now  if  this  man  (the  defend- 
ant) would  answer  the  questions  truthfully  we  could  show  that 
that  was  the  motive  for  this  homicide,"  but  where  no  objection 
or  exertion  was  taken  to  such  remark  at  the  time,  it  cannot 
be  made  the  basis  of  an  assignment  of  error. 

The  fact  that  the  court  in  its  charge  inadvertently  stated 
that  a  certain  witness  testified  to  certain  declarations  of  the 
victim,  where  substantially  such  testimony  had  been  given  by 
other  witnesses  but  not  by  the  witnesses  referred  to,  is  not  re- 
versible error  where  the  court's  attention  was  not  called  to  the 
mistake  at  the  time. 

The  allowance  or  refusal  of  a  new  trial  in  a  homicide  case  is 
so  clearly  a  matter  within  the  discretion  of  the  trial  court  that 
its  action  will  not  be  reviewed  in  the  absence  of  clear  error. 

A  motion  for  a  new  trial  in  a  homicide  case,  on  the  ground 
of  after-discovered  evidence,  was  properly  refused  where  such 
evidence  was  largely  cumulative  and  with  due  diligence  might 
have  been  discovered  before  the  trial. 

The  fact  that  the  trial  judge,  in  passing  upon  the  motion 
for  a  new  trial,  considered  the  affidavit  of  a  witness  in  ex- 


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638  INDEX. 

CRIMINAL  LAW'-continued. 

planation  of  his  deposition,  affords  no  ground  for  reversing  the 
judgment 

After  declarations  have  been  admitted  as  during  declarations 
their  weight  and  credibility  are  for  the  jury,  and  where  such 
declarations  are  contradictory  with  each  x>ther  it  is  the  duty 
of  the  jury  to  weigh  them  and  determine  which,  if  any,  are  to 
be  believed. 

On  the  trial  of  an  indictment  for  murder  the  evidence  tended 
to  show  that  defendant  stepped  from  behind  an  abutment  of  a 
railroad  bridge  and  fired  two  shots  at  deceased,  that  deceased 
ran  a  short  distance  and  made  statements  charging  defendant 
with  the  crime  for  which  he  was  arrested  half  an  hour  there- 
after near  the  scene  of  the  shooting.  There  was  evidence  that 
defendant  saw  deceased  shortly  before  the  latter  started  toward 
his  home,  to  reach  which  he  would  pass  under  the  bridge,  and 
there  was  further  evidence  that  defendant  was  seen  going  to- 
ward the  bridge  shortly  before  the  shooting.  On  the  morning 
after  the  shooting  a  revolver  containing  three  38-calibre  car- 
tridges and  two  empty  shells  was  found  near  the  railroad 
tracks  sixty  rods  from  the  bridge,  and  on  the  following  day  an 
empty  cartridge  case  was  found  in  the  defendant's  room  with 
name  and  number  corresponding  to  that  on  the  cartridges 
found  in  the  revolver.  There  was  evidence  that  ill-feeling  ex- 
isted between  defendant  and  deceased  prior  to  the  shooting. 
Held,  there  was  sufficient  evidence  that  the  murder  was  com- 
mitted by  lying  in  wait,  and  a  verdict  of  guilty  of  murder  of 
the  first  degree  will  be  sustained. 

In  such  case  the  court  did  not  err  in  charging  that  ^tho 
Commonwealth  has  shown  that  this  cartridge  box  was  found 
in  the  room  of  the  defendant,"  the  word  "shown"  used  in  such 
connection  meaning  **pointed  out  or  made  known  by  evidence," 
and  not  necessarily  that  the  facts  referred  to  had  been  estab- 
lished. 

In  a  homicide  case  the  fact  that  defendant  on  the  afternoon 
of  the  day  of  the  homicide  withdrew  from  the  local  bank  his 
entire  deposit  amounting  to  $200,  was  a  circumstance  tending 
to  show  preparation  for  flight  and  was  properly  admitted. 

Where  the  defense  was  an  alibi  attempted  to  be  established 
by  four  persons  in  a  store,  who  stated  that  defendant  was  in 
the  store  all  evening  (with  the  exception  of  a  period  of  five 
minutes)  until  arrested,  and  it  appeared  that  it  would  have 
taken  from  fifteen  to  twenty-five  minutes  to  go  to  the  scene 
of  the  shooting  and  return,  but  such  witnesses  were  busy  at- 
tending store  and  ^timat^s  made  by  some  of  them  indicated 


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INDEX.  639 

CRIMINAL  LAW-^ontinued. 

that  what  seemed  like  four  or  five  minutes  was  in  realily  twelve 
to  twenty,  the  court  properly  charged  that  if  the  defendant  was 
gone  long  enough  from  the  store  to  have  perpetrated  the  crime 
and  returned,  referring  to  such  time  as  fifteen  to  twenty  min- 
utes, the  jury  might  find  him  guilty,  and  further  that  "if  you 
find  from  the  weight  of  the  testimony,  from  the  preponderance 
of  the  evidence,  that  he  (defendant)  was  not.  at  the  scene  of 
the  crime  at  the  time  of  the  killing,  you  must  find  a  verdict 
of  not  guilty."     Com.  ▼•  Belfinot  272. 

2.  Murder — First  degree — Robbery — Motive — III  will — Iden- 
tification  of  defendant — Voice — Evidence — Res  gestm — Charge 
— Sufficiency — Avoiding  arrest — Rebutting  inference — Convic- 
tion of  accomplices — Admissibility — Jurors  of  same  name — 
Error  in  summoning — Waiver — Act  of  March  SI,  1860,  Sec.  5S, 
P.  L.  W. 

In  the  trial  of  an  indictment  for  murder  it  appeared  that  the 
defendant  and  two  confederates,  all  armed  with  revolvers  and 
with  their  faces  partly  concealed  with  handkerchiefs,  went  to 
a  shanty  where  deceased  was  visiting.  The  defendant  entered, 
placed  his  revolver  against  deceased's  head  and  shot  and  killed 
him  instantly.  Defendant  and  his  confederates  compelled  the 
other  occupants  of  the  shanty  to  hold  up  their  hands  and  took 
from  the  only  one  possessing  any  money  all  that  he  had.  De- 
fendant was  positively  identified  by  one  of  the  occupants  of  the 
shanty  by  his  size,  unusually  light  hair,  and  by  the  features 
of  the  upper  part  of  his  face  which  was  exposed,  and  was 
identified  by  another  by  his  voice,  although  less  positively. 
There  was  evidence  that  at  about  one  o'clock  on  the  day  of 
the  shooting  defendant  and  his  two  confederates  were  together 
at  a  camp  in  the  vicinity  and  were  overheard  talking  about  the 
money  at  the  shanty  and  planning  to  get  it,  that  later  in  the 
afternoon  th^  were  again  overheard  talking  on  the  same  sub- 
ject, and  that  they  left  the  camp  together  half  an  hour  before 
the  commission  of  the  crime.  Shortly  after  the  shooting  de- 
fendant appeared  in  the  neighborhood  acting  in  a  nervous,  ex- 
cited and  hurried  manner  and  stated  to  two  acquaintances, 
Sire  had  some  shooting  up  there  and  the  neighbors  are  tele- 
phoning the  police."  There  was  evidence  that  three  or  four 
days  before  the  murder  deceased  had  said  in  the  defendant's 
presence  that  defendant  had  taken  money  from  him  and  had 
attempted  to  commit  an  unnatural  offense  upon  him.  Defend- 
ant fled  and  was  apprehended  seven  months  later  in  another 
state  where  he  wad  working  under  an  assumed  name.    Held, 


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640  INDEX. 

CRIMINAL  LAW'-continued. 

a  verdict  of  guilty  of  murder  of  the  first  degree  was  justified 
by  the  evidence. 

lu  a  homicide  caae  the  statement  by  one  of  the  witnesses  to 
the  shooting,  just  as  the  robbers  were  leaving  the  shanty,  that 
the  defendant  was  the  one  who  had  done  it,  was  properly  ad- 
mitted as  part  of  the  res  gestse. 

In  such  case  the  fact  that  deceased  had  accused  defendant  of 
criminal  offenses  was  admissible  as  tending  to  show  ill  feeling 
between  defendant  and  deceased,  but  not  for  the  purpose  of 
showing  defendants  guilt  of  an  independent  crime.  In  a 
homicide  case  it  is  proper  for  the  Commonwealth  to  prove  any 
facts  naturally  tending  to  show  defendant's  hostility  toward 
deceased. 

In  such  case,  conceding  that  the  defendant  returned  to  the 
town  where  the  crime  was  committed  for  a  short  time  on  the 
night  of  the  homicide,  and  later  gave  his  correct  name  in  an 
adjoining  county,  the  court  could  not  charge  as  a  matter  of 
law  that  such  facts  rebutted  any  inference  that  the  defendant 
fied  for  the  purpose  of  avoiding  arrest. 

In  such  case  in  view  of  the  evidence  tending  to  establish  a 
conspiracy  betwemi  the  defendants,  and  also  of  that  tending  to 
show  that  three  men  actually  committed  the  robbery,  evidence 
of  the  conviction  and  sentence  of  the  other  defendants  was 
properly  admitted. 

The  court  is  not  required  in  a  homicide  case  to  call  the  jury's 
attention  to  every  item  of  evidence,  and  it  is  no  objection  to  a 
charge  that  something  more  might  have  been  added.  The 
charge  is  sufficient  if  it  embraces  the  important  features  for 
and  against  the  defendant. 

In  a  homicide  case  it  is  not  error  for  the  court  to  charge  ^1t 
would  be  a  disgrace  to  the  administration  of  the  law  if  any- 
considerable  number  of  innocent  men  were  ever  convicted  and 
it  would  bo  equally  a  disgrace  if  any  large  number  of  guilty 
men  escaped." 

Where  a  summons  mailed  to  a  juror  in  a  borough  was  er- 
roneously delivered  to  a  person  of  the  same  name  residing  in 
an  adjoining  township  and  using  the  same  post  office,  and  the 
latter  appeared  and  on  his  voir  dire  gave  his  correct  name  and 
residence,  and  was  accepted  and  served  as  a  juror,  such  ir- 
regularity was  cured  and  affords  no  ground  for  setting  aside 
a  verdict  in  a  homicide  case.     Com.  ▼•  T^mmmmTjf  238. 

3.  Murder — Murder  of  the  first  degree — Charge — Evidence 
— Crose-examination. 

A  verdict  of  murder  of  the  first  degree  was  sustained  where 


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CRIMINAL  LAW— continued 

there  wae  evidence  to  show  that  while  the  deceased  and  a  th^rd 
party  were  engaged  in  a  fight  the  defendant  heard  the  quar- 
reling, came  from  a  house  some  distance  away,  removed  his 
coat>  picked  up  a  shovel,  lifted  the  shovel  wiUi  both  hands  and 
approaching  the  deceased  from  the  back  struck  him  a  severe 
blow  on  the  side  of  the  head,  from  which  blow  deceased  died. 

In  such  ease  the  court  committed  no  error  in  refusing  a  point 
charging  that  there  was  no  evidence  to  establish  an  intent  to 
take  life. 

In  such  case  the  court  committed  no  error  in  refusing  to 
permit  the  attorney  for  the  defendant  to  further  cross-examine 
a  witness  produced  by  the  Commonwealth  in  rebuttal  to  prove 
that  the  deceased  had  been  seen  at  a  specified  time  where  such 
further  cross-examination  related  to  the  location  of  other  par- 
ties subsequent  to  the  time  testified  to  by  the  witness.  Com.  ▼• 
Aathomy,  65. 

4,  Murder — Voluntary  manslaughter — Involuntary  man- 
slaughter— Charge  —  Conflicting  instructions  —  Erroneous  in- 
structions— Pointing  pistol  to  frighten — Evidence  —  Self-de- 
fense— Scope  of  direct  examination  of  defendant — New  trial. 

Where  the  plea  to  an  indictment  for  murder  is  that  defend- 
ant was  acting  in  self-defense,  it  is  reversible  error  to  refuse 
to  permit  the  defendant,  while  being  examined  as  a  witness  in 
his  own  behalf,  to  be  asked  whether  at  the  time  he  fired  the 
shot  he  thought  he  was  in  peril  of  his  life  or  of  great  bodily 
harm.  The  weight  to  be  accorded  such  testimony  is  for  the 
jury. 

In  such  case  the  trial  judge  erred  in  refusing  to  correct  such 
error  on  the  ground  that,  in  his  judgment,  there  had  been  de- 
veloped on  the  cross-examination  of  the  defendant  what  would 
have  been  an  affirmative  answer  to  the  disallowed  question, 
where  it  appeared  that  in  no  one  of  defendant's  answers  to 
the  questions  put  to  him  by  the  district  attorney  did  he  say 
that,  when  he  shot  deceased,  he  thought  he  was  in  peril  of  his 
life  or  of  great  bodily  harm.  His  mere  admission  that  he  was 
in  fear  is  not  the  equivalent  of  his  unqualified  declaration  that 
lie  had  acted  in  self-defense  because  he  thought  that  he  was 
in  peril  of  his  life  or  of  great  bodily  harm. 

Where  correct  and  erroneous  instructions  arc  given  in  a 
charge  it  is  not  to  be  conjectuxcd,  especially  in  a  capital  case, 
which  the  jury  followed. 

On  the  trial  of  an  indictment  for  murder  where  dtfendant 
testified  that  when  he  took  the  gun  into  his  hands  he  was 
under  the  impression  that  it  was  unloaded  and  that  hie  iliteu- 

Vol.  ccux — 41 


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642  .  INDEX 

CRIMINAL  luhM— continued. 

tion  was  to  use  it  to  frighten  the  deceased  away,  the  error 
committed  in  charging  that  if  such  were  the  honest  belief  and 
purpose  of  the  defendant  he  would  be  guilty  of  volimtaiy 
manslaughter,  the  trial  judge  inadvertently  using  the  word 
'Voluntary"  instead  of  **involuntary/'  is  not  cured  by  the  fact 
that  the  court  had  in  a  previous  part  of  the  charge  carefully 
distinguished  between  the  two  grades ;  and  where  in  such  case 
a  conviction  of  voluntary  manslaughter  followed,  a  new  trial 
was  awarded.     Com.  ▼•  Wooley,  249. 

6.  Seduction  —  Statute  of  limitations  —  Misdemeanors  — 
Flight — Return — Concealment  within  State — Act  of  March 
$1, 1860,  P.  L,  W'iSO,  Sec.  Jl—'^Usual  residenf '--Words  and 
phrases — Tolling  of  statute — Promise  to  marru — Evidence — 
Sufficiency — Charge — Case  for  jury. 

1.  One  who  is  charged  with  a  crime  committed  in  a  rural 
district  and  flees  from  arrest  to  another  state  but  subsequently 
takes  up  his  residence  in  a  large  city  within  the  State  and  lives 
under  his  proper  name,  may  be  denied  protection  of  the  statute 
of  limitations  by  disavowing  his  identity  at  times  for  the  pur- 
pose of  evading  arrest 

The  words  ''usual  residence"  within  the  meaning  of  the  Act 
of  March  81, 1860,  P.  L.  427-450,  Section  77,  requiring  that  all 
indictments  for  misdemeanors  shall  be  brought  within  two 
years,  provided  "that  if  the  person  against  whom  the  indict- 
ment shall  be  brought  or  exhibited,  shall  not  have  been  an  in- 
habitant of  this  State,  or  usual  resident  therein,  during  the 
said  respective  teijns  for  which  he  shall  be  subject  and  liable 

to  prosecution such  indictment  shall  and  may  be  brought 

against  such  person  at  any  time  within  a  similar  space 

of  time  during  which  he  shall  be  an  inhabitant  of  or,  usually 
resident  within  the  State,"  do  not  refer  only  to  defendant's 
place  of  residence  but  also  to  his  manner  of  residence;  "usual" 
when  used  in  this  sense  means  "customary"  or  "common";  to 
be  a  "usual  resident"  one  must  conduct  himself  in  accordance 
with  his  customary  mode  of  life. 

One  might  commit  an  offense  and  move  to  another  part  of 
the  State  in  an  open  manner,  or  even  go  from  the  State,  if  in 
military  service,  and  not  be  barred  from  claiming  the  benefit 
of  the  statute  of  limitations,  but  this  is  not  so  where  the  of- 
fender flees  from  justice  and  subsequently  by  fraud  and  con- 
cealment, succeeds  in  avoiding  arrest. 

Where  a  person  indicted  in  1916  for  the  crime  of  seduction 
committed  in  1910,  pleaded  Ae  statute  of  limitation,  it  ap- 
peared that  defendant  left  the  State  on  learning  that  a  warrant 


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OKIMINAL  LAW-^ofUirvued. 

had  been  issued  for  his  arrest;  that  no  accurate  account  of 
his  whereabouts  thereafter  appeared  until  1913,  when  he  took 
up  his  residence  in  Pittsburgh  where  he  continued  to  reside 
until  arrested ;  that  since  1913  he  worked  at  his  trade  as  car- 
penter in  different  parts  of  that  city,  used  his  proper  name 
there  and  received  mail  from  the  general  delivery  and  at  his 
various  boarding  houses,  and  paid  taxes  and  voted  in  the  dis- 
trict where  he  resided;  that  while  a  resident  of  Pittsburgh  he 
frequently  visited  the  rural  district  in  which  the  crime  was 
committed  but  on  such  occasions  he  denied  his  identity  and 
used  an  assumed  name,  and  that  when  arrested  he  denied  his 
identity.  Held,  there  was  sufficient  evidence  to  warrant  a 
finding  that  defendant  was  not  a  **usual  resident"  of  the  State 
and  that  the  statute  of  limitations  should  therefore  be  tolled, 
and  the  case  was  for  the  jury  and  a  conviction  in  such  case 
will  be  sustained. 

If  defendant  had  moved  openly  to  Pittsburgh  immediately 
after  the  commission  of  the  crime  for  the  bona  fide  purpose  of 
taking  up  his  residence  there,  he  would  have  been  a  ^Sisual 
resident"  within  the  meaning  of  the  statute. 

Circumstantial  evidence  of  an  engagement  of  marriage  is  to 
be  found  in  the  proof  of  such  facts  as  usually  accompany  that 
relation;  among  them  may  be  mentioned  letters,  presents, 
social  attentions  of  various  kinds,  visiting  together  in  com- 
pany, preparations  for  housekeeping,  and  the  like. 

In  a  prosecution  for  seduc^tion,  evidence  that  defendant  had 
been  paying  constant  attention  to  prosecutrix  for  practically 
one  year,  that  they  became  engaged  to  be  married  about  three 
months  after  they  first  met,  at  which  time  he  gave  her  a  ring; 
that  defendant  called  on  her  at  least  once  a  week  for  several 
months,  accompanied  her  in  public,  and  one  occasion  repaired 
the  engagement  ring,  sufficiently  corroborated  statement  of 
prosecutrix  that  defendant  promised  to  marry  her.  Com.  ▼• 
Weber,  592. 


CUSTOM. 

1.  Fellow  servant — Case  for  jury — Negligence — Master  and 
servant — Mines  and  mining — Inexperienced  minor — Striking 
unexploided  charge  with  pick — Employer's  duty  to  warn  of 
danger — Instruction — Delegation,    Jello  ▼•  Jamisom  C.  Jb  C. 


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644  INDEX. 

DAMAGES. 

1.  Compensatory  and  exemplary  damages — Measure  of  dam- 
ages— Pleadings — Statement  of  claim — Amendment — Depart 
lure — Present  worth — Instructions — Failure  to  request  more 
specific  instructions — Negligence  —  Railroads  —  Ejectment  of 
passenger  at  dangerous  place,  Leoaard  ▼•  B*  Ik  O.  &.  &.  Co.* 
51. 

2.  Measure  of  damages — Evidence — Character  of  treatment 
for  injuries  —  Cross-examination  of  plaintiff  —  Negligence  — 
Master  and  servant — Mines  and  mining,  Clark  ▼•  Bmtler 
Jmaetion  Coal  Co^  262. 

DAMS. 

1.  Construction  of  dam — Dam  partly  in  another  county — 
Relief  affecting  entire  dam — Overflowing  of  waters — Relief  in 
personam — Equity  jurisdiction — Injury  to  real  estate  within 
county — Foreign  defendant — Leave  to  serve  outside  of  county 
^Acts  of  June  13, 1836,  P,  L,  668;  March  17, 1856,  P.  L,  388; 
April  6, 1869,  P.  L.  S89;  April  3,  1903,  P,  L,  189,  and  June  J, 
1916,  P,  L,  8Jf7 — Equity  Rule  10 — BUI  hy  riparian  owner. 
Vandenloot  ▼•  Poaiuu  W.  4b  P.  Co^  99. 

DEATH. 

1.  Clothes  catching  fire  —  Lighting  cigarette  —  Interval  of 
leisure  while  awaiting  material — AiVard — Act  of  June  3,  1915, 
P,  L.  736 — Workmen's  Compensation  Law — Injury  in  course 
of  employment.     Dsikowska  ▼•  Superior  Steel  Co.*  578. 

2.  Presumption  of  care  —  Rebuttal  of  presumption  —  Con- 
tributory negligence — Evidence — Rebuttal — Absence  of  lights 
on  engine — Engine  visible — Harmless  error — Directed  verdict 
for  defendant — Negligence — Railroads — Grade  crossing — Ped- 
estrian— Deafness — Degree  of'care,  Krena  ▼•  Pittsbarsl^  C^ 
C.  A  St.  L.  By.  Co.,  443. 

DECEDENTS'  ESTATES. 

1.  Claim  for  domestic  services — Nonsuit, 

In  an  action  against  the  executor  of  a  decedent's  estate  for 
domestic  services  rendered  testatrix,  judgment  of  nonsuit  'was 
properly  entered  where  there  was  no  proof  of  an  express  prom- 
ise, and  the  testimony  and  i>resumption  rebutted  an  implied 
promise  to  pay  for  the  sendees  rendered  and  where  the  pr^ 
sumption  that  the  plaintiff  was  paid  at  stated  intervals  was  not 
overcome.    Parlow  ▼.  Bolaad,  70. 


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DECEDENTS'  ESTATES— coniinuccf. 

2.  Domicile  of  decedent — Jurisdiction,  0.  C — Change  of 
domicile^-Evidenee'-'Presumption  againat  change — Probate  of 
wUl    Bmr^Uya  Bitate,  401. 

3.  Election  to  take  against  will — Exemption — Acts  of  April 
1,  1909,  P.  L.  87,  and  July  21,  1913,  P.  L.  87 5^ Appraisement 
— Exemption  in  cash. 

Wbeie  a  husband  elects  to  take  his  $5,000  exemption  under 
the  Acts  of  April  1,  1009,  P.  L.  87,  and  July  21,  1913,  P.  L. 
875,  in  cash,  an  appraisement  is  not  necessary. 

The  husband  of  a  testatrix  elected  to  take  against  his  wife's 
will  and  in  the  written  election  recited  that  the  estate  in  ques- 
tion consisted  of  i>er8onal  property,  and  particularly  declared 
his  desire  to  have  $5,000  allotted  to  him  therefrom  as  allowed 
by  the  Act  of  April  1,  1909,  P.  L.  87.  It  appeared  that  the 
entire  property  for  distribution  consisted  of  cash  or  its  equiva- 
lent. The  auditing  judge  awarded  decedent's  husband  the  re- 
quested allowanee,  in  addition  to  one-half  of  the  remaining 
portion  of  her  estate.  Exceptions  were  filed  to  the  $5,000 
award  because  there  was  no  appraisement  as  provided  by  the 
Act  of  1909.  Held,  the  exceptions  were  properly  dismissed. 
HolllmK«r»fl  Estate,  72. 

4.  Election  to  take  against  will — Share  of  husband — Lapsed 
legacies. 

Testatrix  left  no  children  and  all  the  legacies  provided  for 
in  her  will  save  one  had  lapsed  by  reason  of  the  deaths  of  the 
respective  legatees  prior  to  that  of  testatrix.  The  husband  of 
testatrix  elected  to  take  against  her  will.  He  was  awarded 
the  $5,000  exemption  allowed  by  the  act  of  assembly.  The 
balasce  for  distribution,  consisting  of  personalty,  was  awarded 
one-half  to  appellant  and  the  remainder  after  deducting  the 
one  unlapsed  legacy  to  decedent's  next  of  kin  according  to  the 
intestate  law.  The  husband  filed  exceptions  contending  that 
he  was  entitled  to  the  entire  personal  estate  represented  by  the 
lapsed  legacies*  The  auditing  judge  dismissed  the  exceptions. 
Held,  no  error.    lUlllmser's  Bitate,  75. 

6.  Executors  and  administrators — Wills — Joint  will — Sur- 
charge— Failure  to  file  account — Commissions, 

Three  unmarried  and  childless  sisters  made  a  will  providing 
in  part  as  follows:  "We  hereby  order  and  direct  that  at  the 
death  of  the  one  of  us  who  shall  first  depart  this  Hfe,  all  the 
property  of  every  kind  whatsoever  of  which  she  shall  die  seized, 
or  to  which  she  shall  be  entitled  at  the  time  of  her  decease, 
real,  personal  or  mixed,  and  whether  owned  by  her  individually 
or  jointly  or  as  tenant  in  common  with  the  other  two  of  us, 


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646  INDEX. 

DECEDENTS'  ESTATES— conhnii«A 

shall  pass  to  and  become  vested  absolutely  in  the  sumvon  of 
us,  and  the  two  survivors  shall  pay  all  her  just  debts  and  fu- 
neral expenses.  At  the  decease  of  the  one  who  shall  next  de- 
part this  life,  all  her  estate  of  every  kind  whatsoever  of  which 
she  shall  die  seized,  or  to  which  she  shall  be  entitled  at  the 
time  of  her  decease,  whether  owned  by  her,  individually,  or 
jointly,  or  as  tenant  in  common  with  the  other  survivor,  and 
including^  what  she  shall  acquire  under  this  will  as  her  share 
of  the  estate  of  the  one  of  us  who  first  died,  shall  pass  to  and 
become  vested,  absolutely,  in  the  last  survivor,  and  the  last 
survivor  shall  pay  all  debts  and  funeral  expenses  then  unpaid 
of  the  two  who  have  previously  died.  We  further  order  and 
direct  that  this  will  shall  not  be  probated,  unless  necessaiy  to 
determine  the  title  of  property  herein  disposed  of,  nor  shall 
any  appraisement,  whatever,  except  for  collateral  inheritance 
tax,  be  made  of  any  or  either  of  our  estates,  until  after  the 
decease  of  the  last  survivor  of  the  three  of  us,  but  that  all  our 
respective  estates  shall  pass  to  and  become  vested  in  the  sur- 
vivors in  kind  as  they  shall  be  at  the  time  of  our  respective 
deaths."  After  the  death  of  the  last  surviving  sister  the 
executor  under  the  will  filed  an  account  for  her  estate*  Cer- 
tain of  the  residuary  legatees  filed  exceptions  asking  that  the 
executor  be  surcharged  for  failure  to  convert  assets  and  pe- 
curities  belonging  to  the  estates  of  the  two  sisters  who  first 
died  and  to  account  for  the  same,  that  he  be  surcharged  for 
failure  to  include  certain  notes  belonging  to  the  said  estates, 
and  that  the  executor's  commissions  be  disallowed.  The  Or- 
phans' Court  refused  to  surcharge  the  executor  and  allowed 
the  commissions.    Held,  no  error.     Springer's  Estate,  46. 

6.  Death  of  mortgagor — Scire  facias  against  heirs — Failure 
to  join  administrator — Affidavits  of  defense — Insufficiency, 

While  lands  are  assets  for  the  payment  of  debts,  they  are 
not  assets  in  the  hands  of  an  administrator  and  without  an 
order  of  the  Orphans'  Court  he  has  nothing  to  do  with  them. 
In  case  of  intestacy  they  descend  to  the  heirs,  and  if  needed 
for  the  payment  of  debts  they  must  be  converted  in  the  manner 
provided  by  the  statutes. 

In  an  action  of  scire  facias  sur  mortgage,  where  it  appeared 
that  the  mortgagor  had  died  intestate,  the  heirs  were  properly 
made  parties  defendant  and  it  was  not  necessary  that  the  ad- 
ministrator of  the  decedent  be  joined,  in  the  absence  of  any- 
thing to  show  that  the  decedent's  real  estate  was  needed  for 
the  payments  of  debts,  and  the  court  properly  held  insu£Scient 
an  affidavit  of  defense  which  merely  set  up  that  the  action 


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DECEDENTS*  ESTATES— con^ni^eA 

could  not  be  maintained  because  the  administrator  has  not 
been  joined  as  party  defendant. 

In  such  case  where  the  note  was  under  seal  there  is  no  merit 
in  the  contention  that  the  mortgagor  was  not  a  party  to  the 
note  and  it  was  therefore  without  consideration,  where  no  fail- 
ure or  illegality  of  consideration  is  alleged. 

The  doctrine  that  interest  as  against  .the  surety  does  not  be- 
gin with  the  default  by  the  principal,  but  from  the  time  when 
demand  was  made,  applies  only  to  cases  arising  on  official 
bonds.    Herroa  t.  St«f  ensoa,  354. 

DEEDS. 

1.  Building  restrictions — Building  line — Covenants  —  Otmr 
struction — Intention  —  Restricted  space  —  Lowering  grade  — 
Erection  of  poles — Laying  of  street  railway  tracks — BiU  w 
equity — Injunction. 

While  building  restrictions  are  enforceable,  they  are  not 
favored  by  the  law,  and  covenants  relating  to  them  are  not  to 
be  extended  by  implication. 

Words  contained  in  a  building  restriction  in  a  deed  are  to 
be  interpreted  in  the  light  of  the  manifest  object  or  purpose 
of  the  parties  in  using  them.  The  meaning  and  eictent  of  the 
building  restrictions  which  were  within  the  contemplation  of 
the  parties  at  the  time  it  was  imposed  must  prevail. 

Where  the  deeds  to  a  number  of  lots  abutting  on  a  street  in 
a  residential  district  provide  that  ^^no  dwelling  house  or  other 
building  of  any  kind  shall  ever  be  erected  or  placed  on  aaid 
lot  within  twenty  feet"  of  the  street  and  that  "a  space  of 
twenty  feet  shall  always  be  open  and  clear  of  buildings  or 
parts  of  buildings  whatsoever'*  and  the  owners  of  a  supple- 
mental agreement  duly  recorded,  increase  the  space  to  forty 
feet  and  covenant  with  each  other  **not  to  build  or  erect  or 
suffer  to  be  built  or  erected  a  building  of  any  character  what- 
ever** in  such  space,  a  street  railway  company  which  has  pur- 
chased two  of  the  lots  will  be  enjoined  from  lowering  the  grade 
of  its  lots  within  the  restricted  space  and  erecting  poles  and 
laying  tracks  thereon  for  a  loop,  on  which  street  cars  of  large 
dimensions  would  pass  or  stand  during  any  hour  of  the  day  or 
night    Bewar  ▼•  Carson,  599. 

2.  Consideration — Parol  evidende  of  different  consideration 
— Witnesses — Competency — Testimony  of  surviving  party — 
Act  of  May  28,  1887,  P.  I.  158,  Sec,  5,  Clause  e— Contracts-^ 
Contracts  for  henefit  of  third  person^Beneficiarf^s  right  io 
sue — Evidence.    Edmandaoa^s  Bitate,  429. 


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648  INDEX. 

BEEDS-^ontinued, 

3^  Meal  Mtate  —  BuUdmg  reatricHans  —  "Single  dweUing 
house**  on  each  lot — Erection  of  duplex  building  or  apartment 
house — Bill  in  equity — Dismissal,  Rohr«r  ▼•  TrmM^wd  Real 
lEmtmtm  0<ft.,  297. 

4.  Recording  of  deeds — PrioAty — Acts  of  March  18,  1775, 
1  8m.  L.  ii^.  Sec.  1,  and  May  19,  1898,  P.  L.  108--ConsiruC' 
turn — Real  property,    Satitk  ▼•  T«mm8»  367. 

DEMURRERS. 

1.  Affidavit  of  defense  in  nature  of  demurrer'-'PraeHce  Act 
of  May  U,  1916,  P.  L.  J^83— Contracts—  Written  contract  — 
Subsequent  parol  agreement — Advancing  time  for  completing 
work — Absence  of  provision  as  to  increased  compensation — 
Quanhbm  mermt  for  increased  cost — Practice,  C.  P. — State- 
ment of  claim — Insufficiency,  Bo1b«vt  Or»e«  Coat.  €••  ▼•  K* 
A  W.  Ry.  Co.,  241. 

DEVISES. 

1.  Wills — Construction — Oift  in  fee — Defeasible  gift — In- 
tention,     Navsl^  ▼•  Irvin*  214. 

DISCRETION  OF  COURT, 

1.  Rule  to  strike  off  judgment — Laches — Res  adjudicata — 
Judgment  notes — Alleged  alteration — Addition  of  seal — Evi- 
dence— Burden  of  proof — Pres^imption — Opening  judgments. 
Bowman  ▼•  Berkey,  327. 

DISTRICT  ATTORNEYS,  see  Public  Officers. 

DRY  TRUSTS,  see  Trusts. 

EJECTMENT. 

1.  Real  property — Rule  to  bring  ejectment — Party  in  posses- 
sion — Jurisdictional  facts — Evidence — Title —  Will — Posses- 
sion— Payment  of  rent — Act  of  June  10, 1898,  P.  L.  klS, 

A  proceeding  under  the  Act  of  June  10,  189^^  P.  L,  415,  by 
a  party  in  posaessiim  of  land  to  haye  an  issue  framed  to  do- 
termine  title  as  against  other  claimants  must  comply  ivith  the 
provisions  of  the  statute  before  a  rule  will  be  granted  or  an 
issue  allowed.  The  jurisdictional  facte  required  by  the  act 
must  be  averred  in  the  petition,  and  relief  will  be  granted  if 
''it  shall  appear  to  the  court  that  the  facts  set  forth  in  the 
petition  are  true." 


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EJEOTUEUfT— continued. 

Prior  to  the  Act  of  18^3  conferring  juriediction  at  law,  a 
suitor  was  required  to  seek  relief  by  a  bill  quia  timet  filed  on 
the  equity  side  of  the  court  aud  thereby  inyoke  the  aid  of  a 
chancellor  to  remove  a  cloud  resting  upon  his  title  to  the  land. 
A  party  may  now  avail  himself  of  either  the  legal  or  equitable 
remedy. 

In  proceedings  under  the  Act  of  June  10,  1898,  P.  L.  415, 
for  the  framing  of  an  issue  between  the  petitioner  and  the 
respondents  to  settle  their  respective  rights  in  and  to  a  two- 
acre  lot  of  ground,  where  it  appeared  that  petitioner  occu- 
.pied  a  house  on  a  part  of  the  premises  and  where  there  was 
nothing  to  show  that  there  had  been  any  division  of  the  lot 
or  that  any  other  person  was  in  adverse  possession  of  the 
rest  of  the  lot,  the  petitioner  had  such  possession  as  to  entitle 
her  to  invoke  the  aid  of  the  act  for  the  ascertainment  of  her 
rights. 

In  such  case  it  was  error  to  admit  in  evidence  a  will  pur- 
porting to  devise  a  part  of  the  land  to  respondents,  as  the 
question  for  determination  was  not  whether  respondents  had 
title  to  the  premises,  but  whether  petitioner  had  possession 
thereof,  with  disputed  claim  of  title,  and  the  fact  that  petition- 
er had  offered  some  evidence  of  her  title  did  not  warrant  re- 
spondents in  offering  evidence  of  their  title. 

The  fact  that  the  tenants  occupying  another  house  on  the 
lot  had  paid  rent  to  one  of  the  respondents,  was  not  admissible 
in  evidence  for  the  purpose  of  showing  actual  adverse  pos- 
session in  her,  she  must  first  establish  that  the  rent  was  prop- 
erly payable  to  her  as  owner  of  the  part  of  the  lots  claimed 
by  her,  and  this  could  only  be  done  by  showing  that  she  had 
title  to  the  premises,  evidence  of  which  was  not  admissible. 
BeU*s  Petltlom,  495. 

ELECTION  LAW. 

1,  Judges  —  Orphan^  Court  judges  —  OonstUuiional  law  — 
Constitution  of  Pennsylvania,  Art,  V,  Sec,  26;  Art,  VIII, 
Sec.  iS— Constitutional  Amendments  of  1909,  P.  L.  9i8—Time 
of  election. 

An  Orphans'  Court  judge  is  not  a  judge  of  a  designated 
judicial  district  of  a  state,  but  of  the  court  of  the  county  in 
which  he  resides.  If  ^re  be  one  of  two,  three  or  four  counties, 
constituting  a  single  judicial  district,  such  judge  is  not  a 
judge  of  that  district  with  jurisdiction  extending  all  over  it, 
as  in  the  case  of  each  of  the  Common  Pleas  judges  within  it. 


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650  INDEX. 

ELECTION  LAW'-conttnued. 

His  jurisdiction  is  limited  to  the  county  in  which  his  court 
exists. 

The  intent  of  the  sixth  constitutional  amendment  of  1909, 
(P.  L.  948),  was  to  eliminate  the  spring  election  and  to  con- 
tinue the  constitutional  proTisions  for  the  election  of  local  or 
municipal  officers  on  a  day  different  from  that  on  which  gen- 
eral State  officers  are  elected;  judges  of  the  several  judicial 
districts  are  State  officers  but  the  duties  which  they  perform 
are  local  and  under  the  sixth  amendment  of  1909  they  are  in 
the  class  of  officers  to  be  elected  at  the  municipal  elections. 

It  is  the  intent  of  such  amendment  that  Orphans'  Court 
judges  of  the  State  are  to  be  elected  at  the  same  time  that 
elections  are  held  for  judges  of  the  courts  for  the  several  ju- 
dicial districts  and  for  county,  city,  ward,  borough  and  town- 
ship officers  for  regular  terms  of  service,  and  it  is  not  material 
that  they  are  not  judges  of  the  courts  for  the  several  judicial 
districts  or  that  there  are  no  other  provisions  in  the  Constitu- 
tion, other  than  the  sixth  amendment  of  1909  (P.  L.  948), 
under  which  they  can  be  elected. 

Under  Section  25  of  Article  V,  and  Section  8  of  Article  IV 
of  the  Constitution,  where  a  vacancy  happens  by  reason  of 
death  in  a  court  of  record  within  three  months  prior  to  the 
next  election  for  judges,  the  vacancy  is  to  be  filled  by  appoint- 
ment by  the  governor  until  the  first  Monday  of  January  next 
succeeding  the  second  election  for  judges  after  the  occur- 
rence of  such  vacancy,  and  this  provision  has  not  heen  made 
inoperative  by  the  sixth  amendment  of  1909,  amending  Sec- 
tion 8  of  Article  IV,  and  providing  that  iu  the  case  of  a  va- 
cancy in  an  elective  office,  the  person  appointed  by  the  gover- 
nor to  fill  it  shall  be  succeeded  by  someone  chosen  on  the  next 
election  day  appropriate  for  such  office,  unless  the  vacancy 
shall  happen  within  two  calendar  months  immediately  pre- 
ceding such  election,  in  which  case  the  election  for  said  office 
shall  be  held  on  the  second  succeeding  election  day  appropri- 
ate for  such  office. 

A  judge  of  the  Orphans'  Court  died  within  three  months  and 
more  than  two  months  prior  to  the  next  election  for  judges. 
Nomination  petitions  were  prepared  nominating  certain  per- 
sons as  candidates  for  the  vacancy  caused  by  the  death  of  such 
judge.  In  a  suit  in  equily  brought  by  a  taxpayer  to  enjoin 
the  county  commissioners  from  printing  the  names  of  the 
nominees  mentioned  in  such  petition  upon  the  ballots,  the 
lower  court  dismissed  the  bill.  Helcl,  that  the  vacancy  caused 
by  the  death  of  such  judge  could  not  be  filled  at  the  next 


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ELECTION  LAW--cantinued. 

election  for  judges,  but  must  be  filled  by  the  govemor,  the  in- 
cumbent holding  office  until  the  first  Monday  of  January  fol- 
lowing the  second  election  for  judges  held  after  the  occurrence 
of  such  Tacancy,  and  the  decree  was  reversed  with  directions 
to  grant  the  relief  prayed  for.    Buokley  t.  Holmea,  lYG. 

2.  Nominations — Candidates — Official  ballot — Party  nomir 
nees. 

Under  the  Act  of  April  29,  1903,  P.  L.  338,  relating  to  elec- 
tions, a  person  who  has  been  nominated  for  public  office  by  a 
political  party  at  a  primary  election,  may  also  be  nominated 
by  a  political  party  subsequently  formed,  by  means  of  nomi- 
nation papers,  and  is  entitled  to  have  his  name  printed  in  the 
party  column  of  each  party  which  nominates  him.  Towm 
MMtlmc  Part7  Momiaatiom  Papem,  231. 

EMBEZZLEMENT,  see  Criminal  Law. 

EMINENT  DOMAIN. 

1.  Parks — Appropriation  of  land — Act  of  May  H,  1916,  P.  L. 
S12'ili^ — Indebtedness  in  excess  of  statutory  limit — Failure  to 
submit  to  vote  of  people — Failure  to  pay — Mandamus — Courts 
-^Power  over  process — Boroughs.  Viokroy  t.  FemdAle  Boro., 
321. 

2.  Water  companies — Territorial  rights — Special  charter — 
Power  to  furnish  within  city  limits — Incidental  furnishing  to 
suburban  districts — Effect  of  Constitution  of  187S — Accept- 
ance of  Act  of  April  20,  187^,  P.  L.  TS^-Ultra  vires  acts-- 
Right  of  private  parties — Remedy  by  Commonwealth — Act  of 
June  19,  1871,  P,  L.  1S60 — BUI  in  equity — Injunction — Dis- 
missal.    Croyle  t.  JoliBstowB  Water  Co.,  484. 

EQUITY. 

1.  Contract  for  sale  of  real  estate — Specific  performance — 
Laches — Failure  to  make  tender — Refusal. 

Tender  of  performance  on  the  part  of  the  plaintiff  is  pre- 
requisite to  a  decree  for  specific  performance  of  a  contract  for 
the  sale  of  real  estate. 

In  a  suit  for  specific  performance,  the  plaintiff  must  show  he 
has  performed,  or  was  ready  to  perform,  his  part  of  the  con- 
tract, and  that  he  has  not  been  guilty  of  laches  or  unreasonable 
delay,  and  where  the  proof  leaves  the  case  doubtful  the  plain- 
tiff is  not  entitled  to  a  decree. 

The  granting  of  specific  performance  hy  a  chancellor  is  a 
matter  of  grace,  not  of  right. 


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652  INDEX. 

EQUITY— conhnned. 

lu  a  proceeding  in  the  Orphans*  Court  to  compel  ^ecifio 
performauce  of  a  contract  for  the  sale  of  real  estate  owned  by 
a  decedent)  where  it  appeared  that  the  relief  was  not  sought 
for  more  than  three  years  after  performance  was  due  under 
the  contract,  that  the  petitioner  was  a  coxporation  whose  board 
had  by  resolution  previously  granted  decedent  and  others 
leave  to  withdraw  from  the  contract;  that  no  tender  of  the 
consideration  was  made  by  the  petitioner;  that  ^here  was  no 
resolution  of  the  board  authorizing  the  institution  of  the  pro- 
ceedings and  many  stockholders  of  the  petitioner  were  op- 
posed thereto,  and  where  if  the  decree  prayed  for  should  be 
granted,  a  purchase-money  mortgage  would  have  to  be  given 
upon  which  foreclosure  proceedings  would  in  all  probability 
have  been  necessary  in  the  near  future  causing  delay  and  in- 
convenience and  expense,  the  court  was  not  in  error  in  refusing 
the  relief  prayed  for.    K«ti  a  Estate,  548. 

2.  Corporations — Names — Confusion  of  names, 

A  bill  in  equity  to  restrain  a  corporation  from  filing  in  the 
office  of  the  secretary  of  the  Commonwealth  a  certificate  show- 
ing its  change  of  name  was  properly  dismissed  where  the  evi- 
dence offered  by  the  plaintiff  did  not  sustain  the  conclusion 
averred  in  the  bill,  namely,  that  the  change  of  name  against 
which  it  protested  would  result  in  confusion  in  the  business 
of  the  plaintiff  and  defendant.  People*  Tnut  Co.  ▼•  Safe 
D.  *  T.  Co^  02. 

8.  Decree  —  Return  of  bonds  —  AccounUng  —  Trusts  and 
trustees — Guardian  and  ward — Embezzlement — Sale  of  bonds 
registered  in  ward's  name — Failure  of  purchaser  to  make  in- 
quiry— Liability  of  purchaser  to  ward.  Haoilltom-T.  Pe<^le*s 
Traet  Co.,  220. 

4.  Injunction — Judgment  in  prior  suit — Res  adjudicata — 
Estoppel — Church  law — Church  property — Dedication  to  cer^ 
tain  purposes — Diversion,    Xlelnko  t.  Fetrvaka,  1. 

EQUITY  JURISDICTION. 

1.  Injury  to  real  estate  within  county — Foreign  defendant 
— Leave  to  serve  outside  of  county  —  Acts  of  June  S,  18S6, 
P.  L.  668;  March  17,  1856,  P.  L.  S88;  April  6,  1869,  P.  i. 
S89;  ApHl  IS,  1908,  P.  L.  189,  and  June  6,  1916,  P.  L.  «47— 
Equity  Rule  10 — Construction  of  dam — Overflowing  of  waters 
— Dam  partly  in  another  county — Bill  by  riparian  owner-^Re* 
lief  affecting  entire  dam — Relief  in  personam. 

It  is  against  the  policy  of  the  jurisprudence  of  this  State  to 
bring  nonresidents  within  the  jurisdiction  of  our  courts  unless 


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EQUITY  JUEISDICTION— conrtmiwi 

in  yery  special  cases,  and  the  Act  of  April  6,  1859,  P.  L.  389, 
proyiding  that  any  court  haying  equity  jurisdiction  may  upon 
due   application   authorize   service   outside   the   jurisdiction 

of  the  court  in  any  suit  ''concerning lands,  tenements 

and  hereditaments situated  or  being  within  the  juris- 
diction of  such  court,''  is  to  be  construed  in  harmony  with 
such  policy. 

Service  of  a  bill  in  equity  outside  of  the  jurisdiction  of  the 
court  in  which  it  is  filed  cannot  pr6perly  be  allowed  under  the 
authority  of  the  Act  of  1859,  where  the  prayers  for  relief  are 
not  confined  entirely  to  property  alleged  to  be  within  the  juris- 
diction of  the  court,  and  where  the  relief,  if  granted,  would 
require  a  decree  against  the  defendant  personally. 

A  bill  in  equity  brought  in  York  County  against  a  Pennsyl- 
vania corporation  to  compel  the  removal  of  a  dam  which  was 
partly  in  York  County  and  partly  in  Lancaster  County,  and 
which  was  alleged  to  cause  waters  to  overflow  complainant's 
land  in  York  County,  was,  by  leave  of  the  York  County  court, 
served  on  officers  of  the  defendant  in  New  York,  where  the 
company's  principal  office  was  located,  and  in  Lancaster 
County,  where  its  mills  were  situated.  The  prayers  of  the 
bill  comprehended  relief  affecting  the  entire  dam  of  the  de- 
fendant, and  also  relief  requiring  a  decree  against  the  de- 
fendant personally.  Held,  the  service  was  not  within  the 
authority  of  the  Act  of  1859,  or  other  statutory  authority,  and 
a  rule  to  set  it  aside  should  have  been  made  absolute. 

In  such  case  there  was  no  merit  in  the  contention  that  the 
service  was  authorized  under  Equity  Bule  10,  which  merely 
provides  that  ''service  of  the  bill  and  notice  to  appear  and 
answer  on  a  corporation  shall  be  affected  in  the  mode  pre- 
scribed by  law  for  the  service  of  a  v^rit  of  summons  upon  such 
oerporation.''  The  Acts  of  June  13,  1836,  P.  L.  568;  March 
17,  1866,  P.  L.  388;  April  3,  1908,  P.  L.  139,  and  June  6, 
1915,  P.  L.  847,  do  not  apply.  Vaadsraloot  ▼.  Peiuuk  W.  * 
P.  Co.,  99. 

EQUITY  PKACTICE. 

1.  Adjudicaiioiu — Exceptions — Chcmcetlor  and  other  judges 
— Opinion — A  ppeah. 

Where  a  court  consists  of  more  than  one  judge,  exceptions 
to  an  adjudication  must  be  heard  by  the  other  members  of  the 
tribimal  in  addition  to  the  chancellor  who  tried  the  case,  un- 
less this  course  is  made  Impossible  by  their  physical  disability 
or  equally  potent  reasons,  and  the  final  disposition  of  the  ex- 


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654  INDEX. 

BQUITT  PRACTICE-H:on«»i46rf. 

oeptions  should  be  aooompanied  bgr  a  written  opinion  from  tiie 
court  in  banc  whenever  the  circumstances  so  require;  and  in 
the  absence  of  such  opinion  the  record  will  be  returned  l^  the 
appellate  court  for  a  written  opinion  by  the  court  below. 
Xielmko  t.  PetmakA,  1. 

2.  BiU  in  eqtdty — Injunction — Bandr— Affidavit  —  Receivers 
— Protection  of  property — Acts  of  March  21,  1806,  i  8m,  L, 
826;  June  16,  1836,  P,  L.  78i,  and  May  6,  18U,  P.  L.  m. 
Section  1 — Equity  Rules  81  and  82 — Jurisdiction  of  court, 

A  court  of  equity  is  without  jurisdiction  to  award  an  in- 
junction where  no  bond  has  been  filed  as  required  by  the  Act 
of  May  6,  1844,  P.  L.  564,  Section  1,  and  made  mandatoiy  by 
the  Act  of  March  21,  1806,  4  Sm.  L.  826. 

Equity  rules,  promulgrated  by  the  Supreme  Court  in  pursu- 
ance of  the  Act  of  June  16,  1836,  P.  L.  784,  have  the  force  of 
statutory  enactments  and  must  be  strictly  complied  with. 

The  Act  of  1844  and  Equity  Rules  81  and  82  requiring  a 
bond  and  injunction  affidavits  apply  where  a  receiver  invokes 
the  aid  of  equity  to  protect  property  in  his  possession  from 
interference  or  invasion.  The  act  is  mandatoiy  and  applies  to 
all  cases. 

A  light  company  was  declared  insolvent  and  a  receiver  ap- 
pointed by  the  Court  of  Common  Pleas.  Thereafter  creditors 
filed  a  petition  in  bankruptcy,  receivers  in  bankruptcy  were  ap- 
pointed and  the  property  turned  over  to  them.  Subsequently 
the  petition  hi  bankruptcy  was  dismissed  and  the  receivers  in 
bankruptcy  filed  their  account,  but  were  not  discharged.  The 
receiver  previously  appointed  by  the  Common  Pleas  Court 
took  possession  of  the  property  and  filed  a  bill  in  equity  for  an 
injunction  to  restrain  the  receivers  in  bankruptcy  from  in- 
terfering with  his  management  of  the  property;  but  failed  to 
file  a  bond  or  injunction  affidavits.  The  lower  court  granted 
a  preliminary  injunction  which  it  subsequently  refused  to  dis- 
solve. Held,  that  the  court  was  without  jurisdiction  to  enter 
such  decree  and  the  injunction  was  dissolved.  Bamr  t. 
WilkM-Barre  Licbt  Co^  117. 

ESTATES  TAIL. 

1.  WtOs  and  devises-^Real  estate— Act  of  April  £7, 1855,  P. 
L,  S68-^Con8truction^-rIniention,    Cross  ▼.  Dj*,  207. 

ESTOPPEL. 

1.  Church  law  —  Church  property  —  DedicaHon  to  certain 
purposes — Diversion — Equity — Injunction — Judgment  in  prior 
suit — Rp^  ad  judicata.    Kioi»ko  t.  Petrmska,  1. 


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HIDEX.  655 

ESTOPPEL— con«nu6d. 

2.  Contracts — Municipdl  contrckcts  —  Township  of  second 
class — Water  swpply — Acts  uUra  viares^Act  of  Map  25,  1907, 
P.  L.  2SL    Trevorton  Water  Supply  Go.  ▼•  Zerbe  Twp^  31. 

3.  Judgment  for  defendant  n.  o.  v. — Fire  insurance — Appli- 
ca^iion — Answers  to  questions — Misrepresentations — Flov/r  mill 
— Character  of  power  used — Inspection — Breach  of  wtprranty, 
Oorbia  ▼.  MUleTC  Mvt.  Fire  Ins.  Oo^  106. 

EVIDENCE. 

L  AdmissihUUy — Negligence — Railroads — Locomotive  whis- 
tle— Deafening  fireman  on  locom4>tive  on  next  track — Inter- 
state  commerce — Federal  Employer's  Liability  Act  —  Fellow 
servant  rale — Failure  to  warn  of  blowing  of  whistle — Common 
knowledge — Custom  to  warn.    Boyer  t.  Peana.  B.  B.  Co.,  438. 

2.  Admission  of  evidence — Inadequate  objection — Supreme 
Court  practice.  Brown  t.  Kittanning  Clay  Prodaots  Oo.» 
267. 

3.  Burden  of  proof — Presumption — Opening  judgment — Dis- 
cretion of  court — Rule  to  strike  off  judgment — Laches — Res 
adjudicata — Judgments — Judgment  notes — Alleged  alteration 
Addition  of  seal.    Bowman  t.  Borkoy,  327. 

4.  Sufficiency — Charge  —  Case  for  jury  —  Criminal  law  — 
Statute  of  limitations — Misdemeanors — Flight — Return — Con- 
cealment ivithin  State — Seduction — Promise  to  marry.  Com* 
T.  Weber,  592. 

5.  Contracts — Suretyship — Coal  lands — Receipts — Explana- 
tion— Legal  effect  of  receipt — Excessive  verdict — Motion  for 
new  trial — Charge  of  court — Failure  to  reqv>est.  Pittsbursk 
Bloek  Coal  Co.  t.  OliTor  Coal  Co.,  290. 

6.  Criminal  law — Murder — First  degree — Robbery — Motive 
— lU  will — Identification  of  defendant — Voice — Res  gestm — 
Charge — Sufficiency — Avoiding  arrest — Rebutting  inference — 
Conviction  of  accomplices  —  Admissibility — Jurors  of  same 
name — Error  in  summoning — Waiver — Act  of  March  SI,  1860, 
Sec.  63,  P.  L.  W.     Com.  t.  Demaery,  223. 

7.  Deeds — Consideration — Parol  evidence  of  different  con- 
sideration— Witnesses — Competency — Testimony  of  surviving 
party—Act  of  May  »S,  1887,  P.  L.  158,  Sec.  5,  Clause  e— Con- 
tracts— Contracts  for  benefit  of  third  person — Beneficiary's 
right  to  sue^    EdmamdaDm'e  Eetatot  429. 

8.  Discharge  of  surety — Principal  and  surety^—Assignment 
of  debt — Transfer  of  collateral  security — Default — Sale  of  coU 
lateral — Application  of  proceeds  to  unsecured  debt — Value  of 
^tock.    BeaTor  Trust  Co.  t.  Morgan,  567. 


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656  INDEX. 

EVIDENCE— conh*nti«<f. 

9.  Entry  in  bank's  books — Attorney  und  cUeni — Privileged 
commtmication — Banks  and  banking — Bank  deposits — Trans- 
actions outside  of  usual  banking  howrs^-'Liability  of  bank. 
Oond«r  t.  Fanners  Mat.  Ba»k,  197. 

10.  Evidence  of  witness's  previous  statement — After^iscov- 
ered  evidence — Cumulative  evidence — Murder — First  degree — 
Lying  in  wait — Adverse  witness — Cross-examinaiion — Threats 
— Ill  feeling — Remoteness — Admissibility — Motive — 8cope  of 
cross-examination  of  defendant — Improper  remarks  of  district 
attorney — FaUure  to  object — Dying  declaration — Gonfliciing 
declarations — Defenses — AUbi — New  trial.  Coin*  ▼•  Delflao, 
272. 

11.  Hearsay — Evidence  of  declaration  of  agent  Br«»wm  ▼• 
KtttamslBS  Clay  Prodaets  O^^  267. 

12.  Judgments — Presumption  of  payment.  Xisamp  t.  Jokm, 
38. 

13.  Leading  question  —  Negligence  —  RaUroad  crossings  — 
"Slop,  look  and  listen*' — Presumption  —  Contributory  negli- 
gence— Burden  of  proof — Nonsuit.  Waltosk  t.  Peama.  B.  lU 
0^372. 

14.  Mortgages — Foreclosure — Produttion  of  bond*  Amder- 
•am  T.  Kora,  81. 

16.  Murder — Murder  of  the  first  degree — Charge — Criminal 
law — Cross-examination.    Com.  t.  Aatkomy,  05. 

16.  Partnerships — Existence  of  insufficiency — Going  busi- 
ness— Trustees — Tena/nts  in  common — Sharing  of  profits — As- 
signment for  creditors  —  Accounting  —  Commissions.  First 
Mat.  Bank  t.  Oitt  aad  Dalone,  84. 

17.  Preponderance  of  evidence  with  defendant — Conflicting 
evidence — Case  for  jury — Master  and  servant — Bricklayer — 
FaU  of  brick  arch  on  workman — Assumption  of  risk — Con- 
tributory negligence.    Vaa  t.  Biekmoad*  300. 

18.  Presumption  against  change — Probate  of  wUl — Juris- 
diction, 0.  C. — Decedents'  estates — Domicile  of  decedent — 
Change  of  domicile.    Barclay's  Estate,  401. 

19.  Rebuttal — Absence  of  lights  on  engine — Sngine  visible 
— Harmless  error — Directed  verdict  for  defendant — Negligence 
— Railroads — Orade  crossing — Pedestrian — Deafness — Degree 
of  care — Death — Presumption  of  care — Rebuttal  of  presump- 
tion— Contributory  negligence.  Brtti  v.  Pltti%«Ygk>  C, 
C.  *  St.  L.  By.  Co.,  448. 

20.  Res  gestcB  —  Conversation  —  Rulings  by  trial  fudge  ^^ 
Questions  considered  on  appeal  —  NegUgenee — Railroads, 
Leonard  ▼.  B.  4t  O.  B.  B.  Co.,  51. 


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INDEX.  657 

BVTDENOE— conitntiei. 

21.  Self  defense — Scope  of  direet  examination  of  defendant 
— New  trial — Criminal  law — Murder — Voluntary  fnandaugh' 
ter — Involuntary  manslaughter — Charge — Conflicting  vMtruc* 
tions  —  Erroneous  instructions  —  Pointing  pistol  to  frighten. 
Com.  T«  Wooley,  249. 

22.  Jurisdictional  facts — Title— Will — Poesesaionr^Payment 
of  rent^^Act  of  June  10, 189S,  P,  L.  416-^Beal  property — Bute 
to  bring  ejectment — Party  in  possession,    B«U  •  PetltioB»  495. 

23.  To  toll  statute  of  limitations — Insufficiency — Indebted- 
ne8$  on  several  obligations — Payment — Application  to  barred 
claim  mtJu)ut  debtor's  consent — Subsequent  promise  to  pay. 
Montconery^fl  Estate,  412. 

24.  Unauthorized  circular  by  officer — Beneficial  associations 
— Failwre  to  include  by-laws  in  certificate — Acts  of  May  11, 
1881,  P.  L.  20,  and  April  6,  189S,  P.  L.  7.  laJtewtj  ▼.  Sn- 
preme  CounoU  Catlu  Mut.  Ben.  Assn.,  452. 

25.  Written  instruments — Parol  evidenced—Fraud,  accident 
and  mistake — Landlord  and  tenant — Leases — Covenant  not  to 
alter  without  lessor's  consent — Lessor's  refusal — Oood  faith — 
AUeged  condition  —  Construction  —  Forfeiture  —  Act  of  S2 
Henry  VIII,  Ch.  Si,  Bev.  Stat,  l—PUadings-^Act  of  May  U, 
1915,  P.  L.  483,  Sec.  Z— Practice,  C,  P.—Judgment  on  warrant 
— Framing  issue.    WUIUuna  t«  Motepolost  469. 

EXCEPTIONS. 

1.  Equity  practice  —  Adjudications  —  Chancellor  and  other 
judges — Opinion — Appeals.    Klelrto  t.  PetYmsk*,  1. 

EXEOUTOKS  AND  ADMINISTRATORS. 

1.  Wills — Joint  Will — Surcharge — Failure  to  fHo  account — 
Commissions.    SpHmcer's  Estate,  46. 

FINDINGS  OF  FACT. 

1.  Practice,  Supreme  Court — Appeals  —  Auditing  judge  — 
Conclusiveness.    Sdm«mcUo»*fl  Estate,  429. 

FIRE  INSURANCE,  see  Insurance. 

FOREIGN  CORPORATIONS,  see  Corporations. 

GAS  AND  ELECTRIC  COMPANIES. 

1.  Wires-^Defectice  iransformers-^Doath  of  Ummmn^Pre- 
sumption  of  care -^  Contributory  negligence  —  Negligence  — 
Master  and  servant — Notice — Conflicting  facts — Case  for  jury, 
Fa«lk  T.  Duqaerae  Li^kt  Co.,  389.    ' 

Vol.  cclix — 42 


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GDABDIAN  AND  WARD. 

1.  Embezzlement — 8(de  of  bonds  tegittered  in  warcPs  name 
— Failure  of  purchaser  to  make  inquiru — Liability  of  purcJiaser 
to  ward. 

Where  a  guardian  sold  to  a  bank  certain  coxporate  bonds 
registered  in  the  name  of  his  ward,  such  bonds  providing  that 
after  registration  no  transfer  thereof  would  be  valid  unless 
made  on  the  books  of  the  company,  it  was  the  duty  of  the 
officer  of  the  bank  with  whom  the  guardian  dealt  to  make  in- 
quiry as  to  the  authority  of  the  guardian  to  make  the  sale,  al- 
though such  officer  did  not  know  that  he  was  dealing  with  a 
guardian,  and  where  no  such  inquiry  was  made  the  bank  was 
not  in  the  position  of  a  purchaser  without  notice,  and  a  decree 
in  equity  to  compel  a  surrender  of  such  bonds  to  the  ward  and 
for  an  accounting,  was  proper.  Hamiltom  ▼•  Peopls's  Mat. 
BaMk,220. 

INJUNCTIONS. 

1.  Boroughs — Street  railways — Townships — Grant  of  right 
to  operate  road — Resolution — Minutes  of  meeting — Bight  to 
construct  sidings  and  switches — "Switches" — Subsequent  in- 
corporation of  borough — Construction  of  tracks  into  new  car 
bam  —  Interference  by  borough  —  Laches  —  BUI  in  equity. 
Pittsbmrsb  Bys.  Co.  t.  Oarrlek  Boro.,  883. 

2.  Corporations — Directors — Fight  for  control — Issuance  of 
stock — Purchase  by  directors  present  at  meeting — Right  of 
stockholders  to  participate  in  issue— Setting  aside  of  issue — 
Trusi-^Fraud — Bemedy  at  law — Equity — Jurisdiction — Bill  in 
equity  by  stockholder.    Glean  t.  Kittanntng  Brew.  Con  510. 

3.  Deeds — Building  restrictions — Building  line — Covenants 
— Construction — Intention — Bestricted  space — Lowering  grade 
— Erection  of  poles — Laying  of  street  railway  tracks — Bill  in 
equity.    Dewar  t.  Carsom,  599. 

4.  Dismissal — Constitutional  law — Const  of  Penna.,  Art. 
Ill,  Sees.  7  and  11,  AH.  IX,  Sec.  7,  and  AH.  I,  Sec.  l^Dec- 
laration  of  rights — Local  and  special  laws — GratuUies — Con- 
tractors— Encroachment  on  judicial  prerogatives — Counties — 
Contracts — Work  done  under  constitutional  act — Curative  act 
—Constitutionality— 'Acts  of  May  11,  1009,  P.  L.  506,  and 
April  20,  1917,  P.  L.  91.    Kenody  t.  Meyer,  306. 

5.  Dismissal — Water  companies — Eminent  domain — Terri- 
torial rights — Special  charier— Powor  to  furnish  within  city 
Umits — Incidental  furnishing  io  suburban  districts— Effect  of 
Constitution  of  1873— Acceptance  of  Act  of  April  29, 187k,  P. 
L.  73 — Ultra  vires  acts — Right  of  private  pt^rties — Remedy  by 


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INJUNCTIONS— conitntietf. 

Commonwealth— Act  of  June  19,  1871,  P.  L.  lS60—BiU  in 
equity.    Crojle  t.  Jolmstowa  Water  Co.,  484. 

6.  Equity  practice — Bond — Affidavit — Beceivers  —  Protec- 
tion of  property— Acta  of  March  21, 1806,  4  8m.  L.  S26;  May 
6, 18U,  P'  L.  664,  Sec.  1,  and  June  16, 18S6,  P.  L.  78Jh-Equity 
Rules  81  and  82 — Bill  in  equity.  Baur  t.  Wilkes-Barre 
Idsht  Co^  115. 

7.  Judgment  in  prior  suit — Res  adjudicata  —  Estoppel  — 
Church  law — Church  property — Dedication  to  certain  purposes 
— Diversion — Equity.    Xioinko  t.  Petr«ska»  1» 

INSURANCE. 

1.  Beneficial  associations  distinguished  from  insurance  com^ 
panics — By-laws  of  society — Death  benefits — Failure  to  include 
by-laws  in  certificate — Evidence — Unauthorized  circular  by  of- 
ficer—Acts of  May  11, 1881,  P.  L.  20,  and  April  6, 1898,  P.  L. 
7 — Case  for  jury.  Laffertj  t.  Supreme  Co«noll  Catlu  Mut. 
Ben.  Assn.,  452. 

2.  Fire  insurance  —  Application  —  Answers  to  questions  — 
Misrepresentations — Flour  mill — Character  of  power  used — 
Inspection — Breach  of  warranty — Estoppel — Judgment  for  de- 
fendant n.  0.  V. 

In  an  action  on  a  fire  insurance  policy  covering  a  flour  mill 
operated  by  water  power  with  a  gasoline  engine  as  auxiliary 
power  a  verdict  should  have  been  directed  for  the  defendant 
where  it  appeared  that  to  specific  questions  in  the  application 
plaintiff  answered  that  only  water  power  was  used ;  that  while 
defendant's  secretary  actually  inspected  the  premises  and  s(iw 
the  gasoline  engine  the  application  was  not  received  by  him 
until  several  months  thereafter,  and  that  before  the  policy  was 
issued  he  communicated  with  the  plaintiff  stating  that  an  ad- 
ditional rate  was  chargeable  if  gasoline  power  was  also  em- 
ployed, and  that  with  full  knowledge  of  the  difference  in  the 
rates  plaintiff  remitted  the  premium  chargeable  if  water  power 
only  was  used. 

In  such  case  the  company  was  justified  in  inferring  from 
applicant's  written  declaration  and  from  the  payment  of  the 
lower  premium  that  only  water  power  was  used,  that  plaintiff 
intended  to  represent  that  the  use  of  the  gasoline  engine  in 
operation  at  the  time  of  the  inspection  by  defendant's  secre- 
tary had  been  abandoned,  and  defendant  was  not  estopped  by 
reason  of  such  inspection  from  setting  up  the  breach  of  war- 
ranty of  ♦he  truth  of  plaintiff's  answers  to  the  questions  in  the 
application.     Corliin  t,  Mil|er«  Mvt*  F^re  Ins.  Qq.,  106, 


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INTERSTATE  COMAtERCE. 

1.  Negligence — Railroads — Locomotive  whiatte  —  Deafening 
of  fireman  on  locomotive  on  next  track — Federal  Employer's 
lAobUiiy  Act — Fellow  servant  rule — Failure  to  warn  of  blow- 
ing of  whistle — Common  knowledge — Evidence  —  Custom  to 
warn — Admissibility.    Boyer  t.  Pemns.  B.  lU  Co.>  438« 

JUDGMENT  N.  O.  V. 

1.  Judgment  for  defendant  n,  o,  v. — Fire  insurance — Appli- 
cation — Answers  to  qv^estions — Misrepresentations — Flour  nUU 
— Character  of  power  used — Inspection — Breach  of  warranty 
—Estoppel.     OorMm  t.  Millers  M«t.  Fire  Ins.  Co.»  106. 

2.  Judgment  for  defendant  n.  o.  v. — Negligence — Master  and 
servant — Calling  another  to  assist  servant — Injuries  to  person 
caUed.    Byrne  t.  FittsliurKli  Brewing  Co.,  357. 

8.  Judgment  for  defendant  n.  o.  t;. — Negligence — Munici- 
polities — Accumulation  of  filth  on  street  and  sidewalk — Woman 
sweeping  off  sidewalk — Pushing  of  wire  in  mud  with  broom — 
Splashing  of  mud — Injury  to  eye — Proximate  cause — Court 
and  jury.    BmsK«inmn  t.  York,  94. 

JUDGMENTS. 

1.  Judgment  in  prior  suit — Res  adjudicata — Estoppel  — 
Church  law — Church  property — Dedication  to  certain  pur- 
poses—  Diversion  —  Equity  —  Injunction,  ifleinlio  t.  Pe- 
tmskn,  1. 

2.  Judgment  notes — Alleged  alteration — Addition  of  seal — 
Evidence — Burden  of  proof  —  Presumption  —  Opemng  judg- 
ments— Discretion  of  court — Rule  to  strike  off  judgment — 
Laches — Res  adjudicata. 

Although  the  addition  of  a  seal  after  the  signature  of  the 
maker  of  a  note  is  such  a  material  alteration  as  will  avoid 
the  instrument,  an  alteration  by  a  third  person,  without  the 
knowledge  or  consent  of  the  party  to  the  writing,  cannot  in 
any  way  affect  the  holder's  right  or  impair  the  validity  of  the 
instrument  in  its  original  form. 

In  proceedings  to  open  a  judgment,  entered  upon  a  judg- 
ment note,  evidence  showing  alterations  subsequent  to  the  ex- 
ecution of  the  instrument,  upon  which  the  judgment  is  based, 
is  ample  to  meet  the  burden  imposed  upon  the  defendant  by 
law  to  make  a  good  defense  by  evidence  sufficient  to  justi^ 
submission  to  the  jury  and  to  sustain  a  verdict  for  defendant 
if  bdieved  by  the  jury. 

The  uncontradicted  testimony  of  plaintiff  and  her  witnesses 
to  the  effect  that  the  addition  of  the  seal  was  not  made  by  her 
or  by  any  one  for  her,  at  her  request,  does  not  shift  to  de- 


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JUDGMENTS— conhViu6d 

fendant  the  burden  of  showing  who  was  responsible  for  its 
presence  on  the  note. 

When  an  erasure,  alteration  or  interlineation  appears  on  the 
face  of  an  instrument,  there  is  primarily  a  presumption  that 
the  change  was  made  before  execution.  If  the  alteration  does 
not  appear  to  be  beneficial  to  the  party  offering  the  writing  or 
if  it  i^  opposed  to  his  interest,  or  if  made  with  the  same  pen 
and  ink  and  in  the  same  handwriting  as  the  body  of  the  writ- 
ing, this  presumption  remains  unchanged.  Where,  however, 
the  alteration  is  material,  is  beneficial  to  the  party  offering  the 
writing,  or  if  there  be  a  change  on  the  face  of  the  instrument 
which  appears  suspicious,  the  presumption  disappears  and  the 
burden  is  on  the  party  offering  the  writing  to  epqplain  the  al- 
teration to  the  satisxaction  of  the  jury. 

In  proceedings  to  open  a  judgment  entered  upon  a  judgment 
note,  on  the  ground  that,  after  the  execution  of  the  note, «  seal 
had  been  added  thereto,  where  the  plaintiff  neither  admits  nor 
directly  denies  the  subsequent  alteration  but  states  that  no 
alteration  was  made  by  her  or  for  her  with  her  authority,  such 
testimony  is  wholly  insufficient  to  enable  the  court  to  say  as  a 
matter  of  law  that  she  has  met  the  burden  and  satisfactorily 
accounted  for  the  altered  condition  of  the  writing,  and,  as  in 
such  case  the  real  dispute  is  not  so  much  as  to  the  fact  of 
adding  the  seal  as  by  whom  added,  such  question  is  one  of  fact 
for  the  jury,  and  the  court  did  not  err  in  opening  the  judg- 
ment. 

In  such  case  the  fact  that  a  motion  to  strike  the  judgment 
from  the  record  had  been  dismissed,  was  not  res  adjudicata  of 
the  question  involved  as  the  mere  fact  that  the  seal  was  in  a 
different  handwriting  from  that  of  the  maker  of  the  note,  was 
not  such  an  irregularity  as  would  warrant  the  striking  off  of 
the  judgment. 

In  such  case  the  defendant  was  not  guilty  of  laches  in  taking 
the  rule  to  open  the  judgment  where  it  appeared  that  the  judg- 
ment was  entered  on  November  5,  1914,  that  a  rule  to  strike 
off  the  judgment  was  taken  on  November  28th  following,  and 
was  discharged  on  September  1,  1916,  and  on  September  14, 
1916,  a  petition  to  open  the  judgment  was  filed.  Bowaan  t. 
Berkej,  327. 

3.  Presumption  of  payment — Evidence, 

After  the  expiration  of  twenty  years  from  maturity,  judg- 
ments, mortgages  and  all  like  obligations  are  presumed  paid 
and  it  requires  satisfactory  and  convincing  evidence  to  over- 
come that  presumption. 


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J  UDGMENTS— con<tnu«A 

On  a  sci.  fa.  brought  by  a  use-plaintiff  on  a  judgm^it  en* 
tered  on  an  indemnity  bond  given  by  a  collector  of  taxes  where 
it  appeared  that  the  judgment  had  been  entered  more  than 
twenty  years  prior  to  the  issuance  of  the  writ  where  there  was 
no  satisfactory  evidence  to  overcome  the  presumption  of  pay- 
ment by  lapse  of  time,  a  judgment  was  properly  directed  for 
the  defendant    Cma&p  t.  Jo^a,  38. 

JURISDICTION,  C.  P. 

1.  Public  Service  Commission — Complaint — Street  raUuxiys 
— Change  of  rates — Reasonableness — Boroughs  —  Contracts  — 
BUI  in  equity — Dismissal — Findings  of  Public  Service  Com- 
mission — Appeal— Practice,  C.  P,—Act  of  July  26, 191S,  P.  L. 
ISlJr— Trial  by  jury. 

Since  the  Act  of  July  26,  1913,  P.  L.  1374,  matters  within 
the  jurisdiction  of  the  Public  Service  Commission,  including 
the  reasonableness  of  rates  charged  by  public  service  corpora- 
tions, must  first  be  determined  by  it,  in  every  instance,  before 
the  courts  will  adjudge  any  phase  of  the  controversy. 

The  decision  of  the  Public  Service  Commission  on  the  sub- 
ject of  rates  is  subject  to  review,  and  the  courts  are  vested 
with  the  right  and  fixed  with  the  duty  of  passing  upon  the 
record  brought  up  on  appeal,  which  record  shall  include  the 
testimony,  the  findings  of  facts,  if  any,  of  the  commission 
hased  upon  such  testimony,  a  copy  of  all  orders  made  by  the 
Commission  m  said  proceedings,  and  a  copy  of  the  opinion,  if 
any,  filed  by  the  commission. 

In  cases  where  the  parties  had  a  right  to  trial  by  jury  before 
the  Act  of  1913,-  such  right  is  still  preserved  to  them. 

It  is  the  duty  of  the  reviewing  court,  if  it  shall  find  from 
the  record  that  an  order  of  the  Public  Service  Commission  ap- 
pealed from  is  unreasonable,  or  based  upon  incompetent  evi- 
dence materially  affecting  the  determination  or  order  of  the 
commission,  or  is  otherwise  not  in  conformity  with  law,  to 
enter  a  final  decree  reversing  the  order  of  the  Commission,  or, 
in  its  discretion,  to  remand  the  record  to  the  commi^ion  with 
directions  to  reconsider. 

The  fact  that  no  complaint  is  made  to  the  Public  Service 
Commission  when  an  application  for  a  change  of  rate  is  filed 
with  that  body,  does  not  prevent  any  person  affected  thereby 
from  subsequently  entering  a  complaint. 

Where  a  contract  fixing  a  rate  unlimited  in  time  has  been 
entered  into  by  a  public  service  company  with  a  horough  ^rior 
to  the  Act  of  1913,  the  State  has  the  right,  under  authority  of 


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JDBISDICTION,  0.  Y.— continued. 

that  act,  through  the  Public  Service  OommiBsion,  notwith- 
standing the  contract,  to  inquire  into  and  adjust  the  rate  to 
a  reasonable  basis. 

A  bill  in  equity  brought  by  a  borough  against  a  street  rail- 
way company  to  restrain  defendatit  either  from  running  its 
cars  over  a  certain  route  or  from  charging  more  than  a  certain 
fare,  on  the  ground  that  the  proposed  increase  of  fare  was  un- 
reasonable and  that  a  contract  existed  with  the  borough  under 
which  the  defendant  was  prohibited  from  charging  a  higher 
rate,  was  properly  dismissed  for  want  of  jurisdiction  where  it 
appeared  that  the  matter  had  not  been  submitted  to  the  Public 
Service  Commission. 

In  such  case  the  borough  should  file  its  complaint  with  the 
^  Public  Service  Commission,  and  if  the  commission  permits 
the  increase,  the  borough  can,  on  appeal,  raise  all  questions 
properly  involved  in  which  it  has  an  interest  and  have  them 
I>assed  upon  by  the  courts.  St.  Olalr  Boro.  ▼•  T.  Jt  F.  Bl«o* 
By.  Oon  462. 

2.  Quo  warranto — Justices  of  the  peace— County  officers-^ 
.  District  attorney.    Com.  t.  Oaaterom,  209. 

JUEISDICTION,  EQUITY. 

1.  Bill  in  equity  hy  stockholder — Injunction — Corporations 
— Directors— Fight  for  control — Issuance  of  stock — Purchase 
hy  directors  present  at  meeting — Right  of  stockholders  to  par- 
ticipate in  issue — Setting  aside  of  issue—Trust — Fraud — 
Remedy  at  law.    Oloam  t.  Xittaamisc  Brew*  Co.,  510. 

JUEISDICTION,  J.  P. 

1.  Residence  of  justice — Act  of  February  )RP,  18019,  S  Smith's 
Laws,  490.    Coat.  t.  Cma&orom,  209. 

JURISDICTION,  O.  0. 

1.  Decedents'  estates  —  Domicile  of  decedent  —  Change  of 
domicile — Evidence — Presumption  against  change — Probate  of 
win. 

A  domicile  once  acquired  is  presumed  to  continue  imtil  it  is 
shown  to  have  been  changed,  and  where  a  change  of  domicile 
is  alleged  the  burden  of  proving  it  rests  upon  the  person  mak- 
ing the  allegation.  To  constitute  the  new  domicile  two  things 
are  indispensable,  first,  residence  in  the  new  locality,  and  sec- 
ond, the  intention  to  remain  there.  Mere  absence  from  a 
fixed  home,  however  long  continued,  cannot  work  the  change; 
until  the  new  one  is  acquired  the  old  one  remains. 


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JURISDICTION,  O.  C.—cofUinued. 

On  an  appeal  from  tbe  probate  of  a  will  on  Ae  ground  that 
deceased  was  not  a  resident  of  the  State  at  the  time  of  her 
death,  it  appeared  that  deceased  died  in  Canton,  Ohio,  on 
November  18,  1915,  leaving  the  teirtam6ntAty  pa^^  in  ques- 
tion dated  December  18,  1916,  with  the  addenda  in  her  hand- 
writiiig,  "July  1,  1915,  Pittsburgh,  Pa.,  1615  Buena  Viita  St., 
N.  S."  The  will  named  a  resident  of  Pittsburgh  as  the  ex- 
ecutor. It  further  appeared  that  deceased  was  bom  in  Ohio, 
came  to  Pittsburgh  in  1871,  and  lived  there  with  her  husband 
from  that  time  until  his  death  in  1878;  that  her  husband's 
will  was  probated  and  his  estate  administered  in  Allegheny 
County;  that  decedent  went  to  Paris  in  1880  and  lived  there 
until  1904,  when  she  went  to  New  York  City  and  lived  until 
February,  1913 ;  that  she  then  furnished  two  rooms  in  a  house 
oWned  by  her  in  Canton,  Ohio,  and  occupied  by  her  cousin,  and 
boarded  with  him  until  her  death;  ijiat  when  she  purchased 
the  house  in  question  in  Canton  it  was  her  intention  to  have 
the  deed  made  to  her  cousin  but  she  was  advised  by  counsel 
that  she  could  as  well  give  it  to  him  by  her  will ;  that  she  was 
a  member  of  a  church  in  Pittsburgh;  that  her  husband  and 
one  child  and  herself  were  buried  in  a  cemetery  near  Pitts- 
burgh; that  in  previous  wills  prepared  for  her  in  1968  and 
1911  the  introductory  clauses  referred  to  Pittsburgh  as  her 
residence;  that  her  bank  account  and  investments  were  in 
Pittsburgh;  and  that  while  living  in  New  York,  Paris  and 
Canton  she  had  declared  to  a  number  of  witnesses  that  she  re- 
garded Pittsburgh  as  her  home  and  her  stay  in  Canton  as  an 
experiment,  and  temporary ;  and  that  she  made  frequent  visits 
to  Pittsburgh  while  living  at  the  other  places  named;  while 
the  only  facts  offered  to  show  a  change  of -residence  were  the 
purchase  of  the  house  in  Canton  arid  her  living  there  in  fur- 
nished rooms  until  her  death,  that  she  had  registered  on  sev- 
eral occasions  at  the  Y.  W.  C.  A.  building  as  residing  in  Can- 
ton, «nd  her  name  appeared  in  the  Canton  directory  as  a  resi- 
dent. Held,  the  court  did  not  err  in  finding  that  decedent 
was  a  resident  of  Pittsburgh  at  the  time  of  her  death,  and  the 
will  was  properly  admitted  to  pfrobate.    Bmatcl^^m  [Bitate,  401 . 

JURY  AND  JURORS. 

1.  Jurors  of  setme  name — Error  in  swnmotUng — IF«wer — 
Act  of  March  SI,  1860,  Sec,  68,  P.  L.  +87— OrwmnoZ  iaw^-Mur- 
der-^Firsi  degree — Rohhery — Motive— III  will — Identification 
of  defendant — Voice — Evidence-^Res  gestm —r  Charge — Suffi- 
ciency — Avoiding  arresf — Rebutting  inference — Conviction  of 
accomplices — Admissibility.    Gem.  ▼.  Deaaerj,  2^3. 


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JUSTICES  OF  THE  PEACE,  see  Public  Officers. 

LACHES. 

1.  Bill  in  equity — Injunction — Boroughs — Street  railways — 
Townships — Grant  of  right  to  operate  road — ResoltUion — Min- 
utes of  meeting — Right  to  construct  sidings  and  switches — 
"Switches" — Subsequent  incorporation  of  borough — Construc- 
tion of  tracks  into  new  car  bam — Interference  by  borough. 
Pittsbnrsli  Bys.  Co.  ▼•  Carriok  Boro.,  333. 

2.  Equity — Contract  for  sale  of  real  estate — Specific  per- 
formance— Failure  to  make  tender — Refusal,  Knti's  Eatate, 
548. 

3.  Res  adjudicata — Judgments — Judgment  notes  —  Alleged 
alteration — Addition  of  seal — Evidence — Burden  of  proof — 
Presumption  —  Opening  judgments  —  Discretion  of  court  — 
Rule  to  strike  off  judgment.    Bowman  ▼.  Borkey,  327. 

LANDLORD  AND  TENANT. 

1.  Leases-^Covenant  not  to  alter  without  lessor's  consent — 
Lessor^ s  refusal — Good  faith — Alleged  condition  —  Construc- 
tian^F&rfeiture'-Act  of  S2  Henry  VIII,  Ch.  Si,  Rev,  Stat, 
1-^Pleadings—Act  of  May  U,  1915,  P.  L.  483,  Sec,  2—Prac- 
tice,  C,  P. — Judgment  on  warrant — Framing  issue — Evidence 
— Written  instruments — Parol  evidence — Fraud,  accident  and 
mistake. 

Under  the  Act  of  32  Henry  VIII,  Ch.  34,  Rev.  Stat.  1, 
whi(^  is  in  force  in  Pennsylvania,  all  the  rights  and  remedies 
under  a  lease,  which  belonged  to  the  lessor,  belong  to  the 
lessor's  grantee. 

A  condition,  on  breach  of  which  a  tenant's  interest  may  be 
terminated,  is  to  be  distinguished  from  a  covenant  the  breach 
of  which  cannot  in  the  absence  of  a  statutory  provision  to  the 
contrary  afFect  the  tenant's  interest  but  merely  gives  the  land- 
lord a  right  of  action  for  damages,  or,  occasionally,  a  right  to 
an  injunction,  or  a  decree  for  specific  performance.  Mere 
words  of  agreement,'  not  contemplating  a  termination  of  the 
lessee's  interest  upon  his  default,  create  a  covenant,  and  not  a 
condition. 

Conditions  that  work  forfeitures  are  not  favorites  of  tho 
law,  and  nothing  less  than  a  clear  expression  of  intention  that 
a  provision  shall  be  such,  will  make  it  a  condition  upon  which 
the  continuance  of  an  estate  granted  depends.  Where  the  lan- 
guage of  an  agreement  can  be  resolved  into  a  covenant  the 
judicial  inclination  is  so  to  construe  it. 


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666  INDEX. 

LANDLORD  AND  TEH^AJHT-^-^ontinued. 

To  justify  a  refusal  to  accept  on  the  ground  that  work  or 
material  must  be  satisfactory  to  the  party  acquiring  it»  the  ob- 
jection must  be  made  in  good  faith  and  must  not  be  merely 
capricious. 

Under  the  rule  that  an  uncertainty  as  to  the  meaning  of  a 
clause  in  a  lease  is  to  be  determined  in  favor  of  the  lessee,  the 
court  will  not  construe  a  provision  in  a  lease  for  confession  of 
judgment  in  ejectment  on  the  breach  of  any  of  the  "condi- 
tions" of  the  lease  to  include  covenants  and  agreements,  al- 
though covenants)  agreements  and  conditions  are  placed  sub- 
stantially on  the  same  basis,  and  a  breach  of  either  gives  the 
lessors  the  right  to  declare  a  forfeiture. 

A  kase  provided  'lessee agrees  that  all  plans  for  al- 
terations, improvements  and  changes  in  said  buildings  shall 
be  submitted  to  and  be  approved  in  writing  by  the  said  lessors, 
their  duly  authorized  agents  or  attorneys,  before  any  woric  is 
done  or  changes  made  in  said  buildings,"  and  further  provided 
"on  the  breach  of  any  of  the  conditions  of  this  leas^"  the  lessor 
may  obtain  possession  by  means  of  an  amicable  action  and  con- 
fession of  judgment  in  ejectment.  Thereafter  the  lessor  as- 
signed the  reversion  and  the  lessee  made  improvements  with- 
out the  consent  of  the  owner.  There  was  evidence  that  the 
lessor's  refusal  was  capricious  and  not  made  in  good  faith  and 
solely  for  the  purpose  of  enabling  him  to  gain  possession  of 
the  demised  premises  by  forfeiture  of  the  unexpired  term  of 
the  lease.  Held,  (1)  under  the  terms  of  ihe  lease  plaintiff  is 
not  entitled  to  an  amicable  action  and  confession  of  judgment 
in  ejectment  by  reason  of  the  alleged  breach  of  the  agreement 
that  his  plans  should  be  submitted  to  and  approved  by  the 
lessors,  before  he  began  work  on  the  alterations ;  (2)  the  ques- 
tions of  plaintiff's  good  faith  in  his  refusal  to  approve  the 
plans  which  defendant  submitted  to  him  is  one  of  fact  which 
should  have  been  submitted  to  the  jury,  and  (3)  the  trial 
judge  erred  in  directing  a  verdict  for  plaintiff. 

In  such  case  evidence  as  to  a  conversation  between  the  lessor 
and  lessee  in  reference  to  an  insertion  in  the  lease  of  the 
clause  as  to  alterations  and  of  an  alleged  promise  made  by  the 
lessor  in  regard  to  the  alterations  that  would  be  permitted 
under  such  clause,  was  properly  excluded  where  such  conver- 
sation took  place  five  dajo  prior  to  the  execution  of  the  lease 
and  there  was  no  allegation  that  anything  had  been  omitted 
from  the  lease  by  fraud,  accident  or  mistake.  Such  evidence 
could  not  have  been  admissible  even  though  the  conversation 
had  been  contemporaneous  with  the  execution  of  the  lease. 


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LANDLORD  AND  TENANT— con^nwecf. 

Li  such  case  where  the  record  consisted  of  a  statement  of 
claim^  an  answer  by  defendant  in  the  form  of  a  petition  to 
open  the  judgment  and  a  reply  thereto  by  plaintiff,  the  plead- 
ings sufficiently  complied  with  the  Practice  Act  of  1915,  re- 
quiring that  in  actions  of  assumpsit  *^e  pleadings  shall  con- 
sist of  the  plaintiff's  statement  of  claim,  the  defendant's 
affidavit  of  defense,  and  where  a  set-off  or  counterclaim  is 
pleaded,  the  plaintiff's  reply  thereto,"  and  plaintiff  cannot 
complain  in  such  case  that  the  court  erred  in  proceeding  to 
trial  without  a  formal  issue  having  been  framed.  The  better 
practice  is  to  formally  state  the  issue  and  to  incorporate  the 
questions  to  be  decided  by  the  jury  into  the  order  so  that  they 
can  be  answered  specifically.    WiUlaaw  ▼•  Hotopoloa,  469. 

LEASES. 

1.  Coal  leases — Accounting  —  CanstrucHon  —  Forfeiture  — 
Mines  and  mining.    Drake  ▼•  Berry,  8. 

2.  Covenant  not  to  alter  without  lessor's  consent — Lessor's 
refusal — Oood  faith — Alleged  condition — Construction — For- 
feiture— Act  of  S2  Henry  VIII,  Ch.  Si,  Rev.  Stat.  1 — Pleadings 
--Act  of  May  U,  1915,  P.  L.  J^SS,  Sec.  2^Practice,  C.  P.— 
Judgment  on  warrant — Framing  issue — Evidence  —  Written 
instruments — Parol  evidence — Fraud,  accident  and  mistake — 
Landlord  and  tenant.    Williams  ▼•  If  otopolos,  469. 

LIFE  ESTATE. 

1.  Remainders — "Lawful  heirs" — Ejectment — Act  of  April 
.  27,  1865,  P.  L.  SeS—Wills^Construction—Definite  failure  of 

issue.    MeCnintie  ▼•  MoCTlintie,  112. 

2.  Revocation  of  bequest  for  life — Effect  on  interest  in  re- 
mainder— Wills — Construction — Remainders.  May's  Eatate, 
115. 

LOCAL  AND  SPECIAL  LEGISLATION,  see  Constitutional 
Law. 

MANDAMUS. 

1.  Courts — Power  over  process  —  Boroughs  —  Eminent  do- 
main—Parks— Appropriation  of  land — Act  of  May  IJf,  1915, 
P.  L.  S12-Jtl2 — Indebtedness  in  excess  of  statutory  limit — 
Failure  to  submit  to  vote  of  people — Failure  to  pay.  Viekroy 
▼•  Femdale  Boro^  321. 


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668  INDEX. 

MASTER  AND  SERVANT. 

1.  Brewing  company — Moving  machinery— Change  in  op- 
eration— Increased  clanger — Failure  iff  notify  employee — Con- 
tributory negligence — Instructions  to  jury — Failure  to  request 
— Negligence — Earning  power — Charge  of  court — Pleading — 
Variance.    Teaser  ▼•  Amtkr«eit«  Brewias  Cki^  123. 

2.  Bricklayer — Fall  of  brick  arch  on  workman — Assumption 
of  risk — Contributory  negligence — Conflicting  evidence — Pre- 
ponderance of  evidence  with  defendant — Case  for  jury. 

The  credibility  of  oral  testimony  is  for  the  jury. 

Where  the  testimony  offered  by  the  plaintiff  makes  out  a 
prima  facie  case  by  showing  the  existence  of  facts  from  which 
an  inference  of  negligence  arises,  the  case  is  necessarily  for 
the  jury,  notwithstanding  that  the  great  preponderance  of  the 
testimony  is  with  the  defendant.  An  inference  of  negligence 
having  once  arisen  remains  until  overcome  by  countervailing 
proof,  and  whether  it  is  so  overcome  is  a  question  for  the  jury. 

In  an  action  against  building  contractors  to  recover  for  in- 
juries sustained  by  the  falling  of  a  brick  arch  on  a  workman, 
where  it  appeared  that  during  the  construction  of  the  building 
plaintiff  was  assigned  by  the  defendants  to  build  such  arch  on 
a  supporting  wooden  form  erected  by  defendant's  carpenters, 
that  after  the  completion  of  the  arch  it  fell  on  the  plaii^tiff 
causing  the  injuries  complained  of,  and  the  evidence  was  con- 
flicting as  to  how  the  fall  of  the  arch  was  occasioned,  plain- 
tiff's version  being  that  the  form  had  been  removed  at  the  di- 
rection of  defendant's  foreman,  that  plaintiff  had  oomplained 
to  him  of  its  removal  but  that  the  foreman  had  assured  him 
that  it  was  safe,  that  relying  upon  the  foreman's  forty  years' 
experience  plaintiff  continued  at  his  work  and  three  quarters 
of  an  hour  later  the  arch  fell,  while  defendants'  version  was 
that  the  form  had  not  been  removed  but  that  the  arch  fell  by 
reason  of  plaintiff's  placing  his  body  or  leg  over  it,  causing  it 
to  buckle,  and  that  plaintiff  had  admitted  thereafter  that  the 
occurrence  was  his  own  fault,  the  court  did  not  err  in  refus- 
ing to  charge  that  as  a  matter  of  law  plaintiff  had  assumed  the 
risk. 

In  such  case  the  court  did  not  err  in  refusing  to  charge  that 
the  duty  rested  on  the  plaintiff  to  establish  by  the  weight  of 
evidence  that  there  was  no  act  or  omission  on  his  part,  as  an 
experienced  bricklayer,  amounting  to  want  of  ordinary  care, 
which  concurred  With  the  alleged  negligence  of  the  defendants 
in  causing  the  injury.    Tan  ▼•  RtelunoiKd,  BOO. 

3.  Cab  company — BAre  of  team  and  driver — Driver  ossfBiing 
in  hirer^s  work — Special  and  general  employment — Negligence 


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MASTER  AND  SERVANT—con^tnuerf. 

«/  driver — Injury  ia  hirer's  emplepee — Action  against  cab 
company — Respondeat  superior — ''Carriage  cases'*  distinguished 
— Negligence.  Pnhlman  ▼.  EzcoLiior  Ezprem  and  Standard 
Cab  Co.,  393. 

4.  Deaih  of  workman — Parties  defendant — Corporations — 
Identity  of  master — Evidence — Hearsay — DedarcUion  of  agent 
— Charge  of  court — Negligence.  Brown  t.  BLHtaamimc  Clay 
Prodvots  Co.,  267. 

6.  Defective  scaffold — Fall  of  workman — Safe  place  to  work 
— Employers  duty  to  inspect  and  repair — Delegation  of  duty 
— Foreman — Vice-principal — Obvious  danger — Assumption  of 
risk — Contributory  negligence — Case  for  jury  —  Negligence. 
Bwmrtm  t.  BorsomdaU-Kmickt  Co.,  421. 

6.  Negligence — Calling  another  to  assist  servcmt — Injuries 
to  the  person  called — Judgment  for  defendant  n.  o.  v.  Bjme 
▼•  Pittelravck  Browinc  Co.,  357. 

7.  Negligence — Electric  company — Wires — Defective  trans- 
formers— Notice — Death  of  lineman — Presumption  of  care — 
Contributory  negligence  —  Conflicting  facts  —  Case  for  jury. 
Fanlh  t.  DiMmosao  Lisht  Co.,  389. 

8.  Negligence — Mines  and  mining — Bituminous  Coal  Mine 
Act  of  June  9, 1911,  P.  L.  7o& — Construction  of  passageway— 
Mine  foreman — Negligence  of  mine  foreman — Constructive 
notice  of  defect  —  Contributory  negligence  —  Nonsuit.  Co«- 
sotto  T.  Panltoa  Coal  Mia.  Co.,  520. 

9.  Negligence — Mines  and  mining — Inexperienced  minor — 
Striking  unexploded  charge  with  pick — Employers  duly  io 
mam  of  danger — Instruction — Delegation — Custom  —  Fellow 
servant — Case  for  jury.    Jelio  ▼•  Jamison  C  *  C.  Co.,  447. 

10.  Negligence — Mines  and  mining — Damages — Measure  of 
damages — Evidence  —  Character  of  treatment  for  injuries  — 
Cross-examination  of  plaintiff.  Clark  ▼•  Bntler  Jnnotion 
Coal  Co.,  262. 

11.  Negligence — RaUroad  company — Safe  place  in  which  to 
work — Assumption  of  risk — Case  for  jury.  I«amb  ▼.  Ponna. 
R.  R.  Com  536. 

12.  Negligence — Safe  place  io  work — Fall — Subcontractors 
— Injuries  to  workman — Liability.  Moran  ▼.  Oen.  Piro  Ex- 
tlngnUhor  Co.,  168. 

13.  Safe  place  to  work — Minors  under  sixteen — Employment 
—Factory  Act  of  April  29, 1909,  P.  L.  SSS—Violationr—Dupli' 
cate  lists — Posting  of  lists — Negligence — Proximate  cause — 
Burden  of  proof—Exception*  ClMbot  ▼•  PIttslmrcli  Plato 
OlaM  Co.,  504, 


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670  INDEX. 

MINERALS. 

1.  Beal  estate — Owner  of  lafid  otdu — Fairtition.  T^was's 
Efltate»  206. 

MINES  AND  MINING. 

1.  Coal  leasee — Accounting — Coneiruction — Forfeiture. 

'^Miners'  weight"  as  used  in  a  coal  lease  is  not  a  fixed,  un- 
varying quantity  of  mine  run  material,  but  is  such  quantity 
of  the  same  as  operators  and  miners  may  from  time  to  time 
agree  as  being  necessary  or  sufficient  to  produce  a  ton  of  pre- 
pared coaL 

Where  a  coal  lease  provided  **miners'  weight  to  be  the  stand- 
ard" of  each  ton  of  coal  mined,  and  thereafter  the  successors 
in  title  of  the  lessors  brought  a  bill  in  equity  against  the  lessees 
for  an  accounting  for  coal  mined,  the  court  properly  decided 
that  the  accounting  should  be  on  the  basis  of  the  miners' 
weight  fixed  upon  by  the  operators  and  miners  during  the  ac- 
counting period,  not  upon  the  basis  of  the  miners'  weight  as  it 
existed  at  the  time  of  the  execution  of  the  lease. 

Drake  et  al.  v.  Lacoe  et  al.,  157  Pa.  17,  followed. 

In  such  case,  a  provision  in  the  lease  '^hat  sufficient  pillars 
of  coal  shall  be  left  to  support  the  roof  over  the  gangways  and 
the  usual  protection  of  the  mines  generally,"  was  for  the  pro- 
tection of  the  colliery,  not  of  the  surface,  and  the  successors 
of  the  lessors,  though  owning  the  surface,  were  not  entitled  to 
an  injunction  to  restrain  the  removal  of  coal  from  the  pillars, 
especially  after  all  reason  to  apprehend  surface  disturbance  by 
the  removal  of  such  coal  had  ceased  to  exist. 

In  such  case  a  usage  that  the  owner  of  the  surface  was  en- 
titled to  one-third  of  all  tiie  pillar  coal,  could  not  be  set  up 
to  defeat  a  grant  of  all  the  coal  in  the  mine,  and  the  successor 
of  the  lessor  was  not  entitled  to  restrain  the  removal  of  such 
coal  or  to  have  a  forfeiture  of  the  lease  declared  because  of 
such  removal.    Drake  t.  Berry,  8. 

2.  Negligence — Master  and  servant — Bituminous  Coal  Mine 
Act  of  June  9,  1911,  P.  L,  75& — Construction  of  passageway — 
Mine  foreman  —  Negligence  of  mine  foreman  —  Constructive 
notice  of  defect  —  Contributory  negligence  —  Nonsuii,  Coe- 
sette  T.  PAvlton  Goal  Min.  Co^  520. 

3.  Negligence — Master  and  servant — Damages — Measure  of 
damages — Evidence  —  Character  of  treatment  for  injuries  — 
Cross-examination  of  plaintiff,  Clark  ▼•  Bailer  JaaetloA 
Goal  Co^  262. 

4.  Negligence — Master  and  servant — Inexperienced  minor — 
Striking  unexploded  charge  with  pick — Employer's  duty  to 


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MINES  AND  MINING— ccme»nu6d 

warn  of  danger — Instruction — Delegation — Custom — Fellow 
servant — Case  for  jury,    Jelie  ▼•  Jamison  €•  St  O.  Co.,  447. 

MOETQAQES. 

1.  Decedents'  estates  —  Death  of  mortgagor  —  Scire  facias 
against  heirs — Failure  to  join  administrator — Affidavit  of  de- 
fense— Insufficiency.    Herron  ▼•  Stevenson,  354. 

2.  Foreclosure  —  Assignment  —  Production  of  bond — De- 
fenses— Evidence  —  Pra^itice,  Supreme  Court  —  Qv^tion  not 
raised  below. 

Tho  production  of  a  bond  secured  by  a  mortgage  is  not  es- 
sential to  recovery  in  an  action  on  the  mortgage. 

The  question  whether  the  assignment  of  a  mortgage  abso- 
lute on  its  face  was  in  point  of  fact  subject  to  the  right  of 
redemption  by  the  assignor  upon  payment  by  him  of  a  debt 
owed  the  assignee  will  not  be  considered  by  the  Supreme  Court 
where  it  has  not  been  raised  in  the  court  below. 

Where  in  an  action  of  scire  facias  sur  mortgage  the  defense 
was  that  the  use-plaintifF's  title  was  defective,  that  the  mort- 
gage was  not  the  absolute  property  of  the  party  who  had  as- 
signed it  to  the  use-plaintiff,  but  was  held  as  collateral  for  a 
debt,  but  where  the  assignor  of  the  use-plaintiff  testifying  for 
defendant  stated  that  he  had  received  the  mortgage  by  assign- 
ment absolute  on  its  face  as  security  for  the  payment  of  $3,000, 
one-half  of  which  was  to  be  paid  in  cash  and  the  balance  by  a 
transfer  to  the  witness  of  a  promissory  note,  that  all  was  to  be 
paid  at  the  maturity  of  the  note,  and  that  if  not  so  paid  the 
assignment  of  the  mortgage  was  to  be  absolute,  that  upon  ma- 
turity the  note  remained  unpaid,  so  that  the  assignment  I^ 
the  terms  of  the  agreement  testified  to  by  defendant's  witness 
became  absolute,  the  evidence  presented  did  not  constitute  a 
defense  to  the  action  and  the  trial  judge  made  no  error  in  di- 
recting a  verdict  for  plaintiff.    Anderson  t.  Kem,  81. 

8.  Real  property — Merger — Dower  interest — Assignment  of 
dower  interest  to  owner  in  fee — Assumpsit  for  dower.  CMf- 
fitli  ▼•  MeKeever,  605. 

MOTIONS  AND  HULES. 

1.  Equity  Rule  10 — Construction  of  dam — Overflowing  of 
waters — Dam  partly  in  another  county — BUI  by  riparian  owner 
— Relief  affecting  entire  dam — Relief  in  personam — Equity 
jurisdictionr-Injury  to  reaLestate  within  county — Foreign  de- 
fendant— Leave  to  serve  outside  of  county — Acts  of  June  IS, 
18Se,  P.  I.  568;  March  17,  1856,  P.  L  888;  April  6,  1859, 


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672  INDEX. 

MOTIONS  AND  RULES— con^niieA 

P.  L.  389;  April  3,  1903,  P.  L.  139,  and  June  5,  191^,  P.  L. 
847.    VMul#itaMt  ▼•  PiniAcu  W.  *  p.  €#H  99. 

2.  Equity  Rules  81  and  82 — Injunction — Bond-^Affidavii — 
Receivers — Protection  of  property — Acts  of  March  21,  1806,  i 
Sm.  L.  326;  May  6,  ISU,  P.  L.  oGJ^,  Sec.  1,  and  June  16, 1836, 
P.  L.  784.    Brar  ▼•  Willia«  Mmrw  Xde^t  Go^  115. 

8.  Motion  for  new  trial-^Juirge  of  court — Failure  to  re- 
quest— Contracts — Suretyship  -^  Coal  lands  —  Receipte — Ex- 
planation— Evidence — Legal  effect  of  receipt — Excessive  ver- 
dict.   Pittsbvrsli  Block  Coal  Co.  t.  OUver  Coal  Co^  290. 

4.  Rule  to  strike  off  judgment — Laches — Res  adjudicata — 
Judgment  notes — Alleged  alteration — Addition  of  seal — Evi- 
dence— Burden  of  proof — Presumption — Opening  judgments — 
Discretion  of  court.    BowaMua  ▼•  Bovkoy»  827. 

MUNICIPAL  LAW. 

1.  Municipalities — Negligence  —  Accumulation  of  filth  an 
street  and  sidewalk — Woman  sweeping  off  sidewalk — Pushing 
of  wire  in  mud  with  broom — Splashing  of  mud — Injury  to  eye 
Proximate  cause — Court  and  jury — Judgment  for  defendant 
n.  0.  V,     Brusseaiaa  ▼•  Tork,  94. 

2.  Official  bonds — Default — County  auditors — Audit — Fail- 
ure to  appeal — Sureties — Liability  for  defalcation  of  principal 
— Judgment  for  defendant. 

An  action  at  law  will  not  lie  on  an  official  bond  until  there 
has  been  an  accounting  before  the  county  auditors,  who  con- 
stitute a  special  tribunal,  created  by  statute  for  the  purpose 
of  adjusting  the  accounts  of  such  officers  and  determining  the 
amount  due  to  or  from  them.  This  decision,  unappealed  from, 
is  conclusive  and  precludes  an  action  at  common  law  for  an 
unadjudicated  account. 

The  sureties  on  an  official  bond  given  by  the  treasurer  of 
the  directors  of  the  poor,  will  not  be  liable  for  an  embezzlement 
conmiitted  by  the  principal,  where  it  appears  that  the  books, 
vouchers  and  other  documents,  relating  to  the  accounts  of  the 
treasurer,  were  submitted  to  the  county  auditors  and  audited, 
and  no  defalcation  was  found ;  and  it  is  not  material  that  the 
attention  of  the  auditors  was  not  called  to  the  items  for  which 
the  action  was  brought.     Snjdor  ▼.  Borkey,  489. 

MURDER,  see  Criminal  Law. 

NAMES. 

1.  Confusion  of  names  —  Corporations  —  Equity.  Pooploo 
Tmwt  Co.  T.  Safe  D.  ft  T.  Co.,  62. 


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NEGLIGENCE. 

1.  Automobiles — Railroads -^Contributory  negligence  — 
Quest — Testing  danger. 

It  cannot  be  said  as  a  matter  of  law  that  a  ^est  or  passeB^ 
ger  in  a  vehicle  is  guilty  of  negligence  because  he  has  done 
nothing.  In  many  such  cases  the  right  degree  of  caution  may 
consist  of  inaction.  In  situations  of  great  and  sudden  peril, 
meddlesome  interference  with  those  having  control,  either  by 
physical  act  or  by  disturbing  suggestions  and  needless  warn- 
ingSy  may  be  exceedingly  disastrous  in  results. 

In  an  action  to  recover  damages  for  personal  injuries  sus- 
tained by  the  plaintiff  in  a  collision  between  plaintiff's  auto- 
mobile and  a  railroad  train,  it  appeared  that  plaintiff,  a  clergy- 
man, was  riding  in  the  automobile  as  a  guest  of  one  of  his 
parishioners  who  had  sent  the  automobile  for  him.  The  auto- 
mobile was  driven  by  the  chauffeur  of  the  parishioner.  The 
collision  was  the  result  of  joint  negligence  in  the  operation  of 
the  train  and  the  automobile.  Both  the  plaintiff  and  the 
chauffeur  were  familiar  with  the  streets  over  which  they  were 
to  pass  and  both  knew  of  the  railroad  crossing  where  the  acci- 
dent occurred.  There  was  evidence  that  plaintiff  when  about 
100  feet  from  the  railroad  track  heard  a  noise  which  seemed  to 
him  the  noise  of  an  approaching  train;  that  the  driver  was 
then  going  about  fifteen  or  twenty  miles  an  hour;  that  plain- 
tiff called  to  him  to  stop — which  call  the  driver  said  he  did  not 
hear — and  the  next  thing  plaintiff  knew  the  automobile  was 
in  collision  with  the  car.  The  lower  court  entered  a  compul- 
sory nonsuit.  Held,  error,  and  that  the  case  was  properly  for 
the  jury.    Tooca  ▼•  Pabaa*  R.  R.  Co.*  42. 

2.  Contributory  negligence — Fall  of  brick  arch  on  workman 
—Assumption  of  risk — Conflicting  evidence — Preponderance 
of  evidence  with  defendant — Case  for  jury — Master  and  serv' 
ant — Bricklayer,    Tan  ▼•  Rlelimond,  800. 

3.  defective  sidewalk — Flagstone — Roots  of  trees — Liability 
of  property  owner — Case  for  jury. 

In  an  action  by  a  i>edestrian  to  recover  for  personal  injuries 
resulting  from  a  defect  in  a  sidewalk  causing  her  to  trip  and 
fall,  the  case  is  for  the  jury  and  a  verdict  and  judgment  for 
the  plaintiff  will  be  sustained  where  it  appeared  that  at  the 
point  of  the  accident  th^  outer  edge  of  the  flagstone  pavement 
had  been  raised  to  a  height  of  from  four  to  six  inchfts  at  the 
surface  by  the  growth  of  the  roots  of  a  tree;  that  at  the  time 
of  the  accident  it  was  almost  dark,  snow  was  falling  and  nearly 
two  inches  of  snow  covered  the  ground ;  that^laintiff  was  look- 
ing in  front  of  her  for  a  distance  of  from  four  to  six  feet  and 

Vol.  ccxax — 43 


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NEOLIOENOE— coneuiueJ. 

did  not  see  the  defect  in  the  sidewalk  iintil  she  had  fallen, 
and  while  still  on  the  ground  discovered  the  cause  of  her  acci- 
dent   Campbell  ▼•  Vineeat,  419. 

4.  Maaier  and  servant — Brewing  company — Moving  machin- 
ery— Change  in  operation — Increased  danger — Failure  to  noti- 
fy employee — Contributory  negligence — Instructions  to  jury-^ 
Failure  to  request — Earning  power — Charge  of  court — Plead- 
ing— Variance, 

If  the  operation  of  a  machine  prior  to  changes  is  not  attend- 
ed with  danger  and  changes,  involving  danger,  are  made  with- 
out notice  to  or  knowledge  of  an  employee  and  in  the  exercise 
of  ordinary  prudence  he  would  not  observe  such  changes,  it  is 
the  duty  of  the  employer  to  notify  him  thereof,  and  failure  to 
do  so  is  negligence. 

In  an  action  by  an  employee  against  a  brewing  company  to 
recover  damages  for  personal  injuries  resulting  from  his  arm 
being  caught  in  the  revolving  cogs  of  a  machine,  the  questions 
of  defendant's  negligence  and  the  contributory  negligence  of 
the  plaintiff  were  for  the  jury  and  a  verdict  and  judgment  for 
the  plaintiff  will  be  sustained  where  it  appeared  that  it  was 
the  duty  of  the  plaintiff,  Who  was  on  night  turn,  to  remove 
from  time  to  time  the  malt  which  accumulated  in  the  gear 
boxes  of  the  malt  dryer,  a  cylindrical  drum  revolving  by  means 
of  cog  wheels  connected  with  the  driving  shaft;  that  in  the 
performance  of  such  services  plaintiff  was  required  to  go  to 
the  rear  of  a  chute  which  fed  the  dryer  and  to  stand  within  a 
narrow  space  between  the  chute  and  reach  over  the  gear,  which 
had  for  many  years  been  revolving  outward  and  was  therefore 
not  dangerous ;  that  nine  days  prior  to  the  accident  defendant 
changed  the  operation  of  the  cog  wheels  so  that  they  revolved 
inward  instead  of  outward ;  that  defendant  did  not  notify  plain- 
tiff of  such  change  and  plaintiff  was  not  aware  thereof  and  could 
not  observe  same  on  account  of  the  darkness  of  the  place  and 
the  rapidity  with  which  the  cogs  revolved;  and  while  in  the 
act  of  removing  the  malt  his  arm  was  caught  in  the  cogs  and 
he  sustained  the  injuries  complained  of. 

In  such  case  the  plaintiff  was  justified  in  assuming  that  the 
wheels  were  still  revolving  outward. 

Where  it  appeared  that  the  weekly  wage  of  the  plaintiff  was 
the  same  after  as  before  the  accident,  the  court  did  not  err, 
after  referring  to  such  fact,  in  charging  that  "it  is  for  loss  of 
earning  power  hi  the  future  that  you  are  to  compensate  him, 
if  anything.  i|^  other  words,  what  would  he  continue  to  earn 
in  the  futur^ad  this  accident  not  Baye  happened,  and  that 


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NEGLIGENCE— conKnuerf. 

for  a  period  of  the  balance  of  his  life?  The  test  is  whether  the 
power  or  capacity  ta  earn  has  been  diminished  as  a  result  of 
the  injury  and  the  earnings  of  the  plaintiff  subsequent  to  the 
injury,  as  compared  with  his  earnings  prior  to  the  injury,  are 
evidence,  but  not  conclusive,  as  to  whether  his  earning  power 
has  been  diminished  by  reason  of  the  injury.  Teaser  ▼.  An- 
tkraoit«  Br«wiac  Co.,  128. 

5.  Master  and  servant — Cab  company — Hire  of  team  and 
driver — Driver  assisting  in  hirer's  work — Special  and  general 
employment — Negligence  of  driver — Injury  to  hirer's  employee 
— Action  against  cah  companies — Respondeat  superior —  "Car- 
riage cases"  distinguished. 

There  can  be  no  recovery  against  one  charged  with  negli- 
gence upon  the  principle  of  respondeat  superior  unless  it  be 
made  to  appear  that  the  relation  of  master  and  servant  in  fact 
existed,  and  that  the  servant  was  within  the  scope  of  his  em- 
ployment. 

Where  one  person  lends  his  servant  to  another  for  a  particu- 
lar employment,  the  servant,  for  anything  done  in  that  par- 
ticular employment,  must  be  dealt  with  as  a  servant  of  the  man 
to  whom  he  is  lent,  although  he  remains  the  general  servant  of 
the  person  who  lent  him.  The  test  is  whether,  in  the  particu- 
lar service  which  he  is  engaged  to  perform,  he  continues  to  sub- 
ject to  the  direction  and  control  of  his  master,  or  becomes  sub- 
ject to  that  of  the  party  to  whom  he  is  lent  or  hired. 

In  an  action  against  an  express  company  brought  by  an  em- 
ployee of  an  electric  company  to  recover  for  personal  injuries, 
it  appeared  that  the  electric  company  had  hired  from  the  de- 
fendant the  services  of  a  horse,  wagon  and  driver  to  assist  in 
the  erection  of  poles  and  wires;  that  the  defendant  sent  each 
morning  to  the  electric  company  a  man  and  wagon  to  remain 
.in  their  service  during  the  day;  that  the  employees  of  the 
electric  company  rode  in  the  wagon,  and  that  the  material  to 
be  used  in  putting  up  wires  and  poles  was  carried  in  it  wher- 
ever occasion  required;  that  the  duties  of  the  driver  were  to 
drive  wherever  he  was  directed  by  the  electric  company's  fore- 
man, to  assist  with  the  team  in  pulling  down  and  putting  up 
poles  pursuant  to  the  direction  of  the  foreman ;  that  the  driver, 
in  response  to  plaintiff's  request  to  hand  him  a  chisel  threw  it 
to  him  in  such  a  manner  as  to  strike  him  on  the  knee,  causing 
Hke  injuyie«r  complained  of.  Held,  the  driver  was  under  the 
direction  and  control  of  the  foreman  of  the  electric  company 
and,  therefore,  in  the  latter's  special  employ  at  the  time,  and  a 
compulsory  nonsuit  was  properly  entered. 


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NEGLIGENCE— conftnwcrf. 

Plaintiff  failed  to  show  affirmatively  that  handing  tools  from 
the  wagon  was  a  duty  which  defendant  company  engaged  to 
perform,  or  that  defendant  employed  the  driver  to  disdiarge 
that  duty. 

The  '^carriage  cases"  are  distinguished  from  this  case  l^  the 
fact  that  in  those  cases  the  driver  is  only  under  the  control  of 
the  hire  to  the  extent  of  indicating  the  destination  to  which 
the  latter  wishes  to  be  driven.  PwUHaan  ▼•  Ihriilrior  SjcprMs 
tmd  Stiu&dard  0«b  Oo^  393. 

6.  Master  and  servant — Calling  another  to  assist  servant — 
Injuries  to  the  person  called-^ udgment  for  defendant  n.  o.  v. 

While  the  relation  of  master  and  servant  cannot  be  imposed 
upon  a  person  without  his  consent,  express  or  implied,  a  serv- 
ant may  engage  an  assistant,  in  case  of  an  emergency,  when 
he  is  unable  to  perfonn  the  work  alone,  and  such  assistant  be- 
comes, for  the  time  being  a  servant  of  the  master  whose  em- 
ployee engaged  him. 

Where  in  such  an  emergency  such  temporary  employee  is  in- 
jured in  consequence  of  defects  in  the  premises  upon  which  he 
is  requested  to  work  he  may  hold  the  master  of  the  servant 
who  called  him  to  assist  liable  for  such  injury  but  in  such  case 
he  must  establish  that  an  emergency  existed  sufficiently  great 
to  warrant  the  calling  upon  him  for  aid. 

Where  the  driver  of  a  motor  truck,  owned  and  operated  by  a 
brewing  company,  lost  his  way  and  requested  a  friend  to  ride 
with  him  to  point  out  the  direction  in  which  he  should  go,  and 
the  friend  of  such  driver  complied  with  such  request  and  rode 
for  a  distance  in  the  motor  truck  and  was  injured  in  conse- 
quence of  defects  therein,  he  could  not  hold  the  owner  of  the 
motor  truck  liable  for  such  injuries  in  the  absence  of  any- 
thing to  show  that  his  presence  on  the  truck  was  necessary  to 
guide  the  driver  to  the  proper  road,  particularly  where  it 
further  appeared  that  the  way  was  easy  to  find  and  that  a  de- 
scription thereof  would  have  been  sufficient.  Byrme  ▼.  Fit^- 
Imvck  Brewing  Co.,  357. 

7.  Master  and  servant — Death  of  workman — Parties  defend- 
ant— Corporations — Identity  of  master — Evidence  —  Hearsay 
— Declaration  of  agent — Charge  of  court. 

In  an  action  to  recover  damages  for  the  death  of  plaintiff's 
husband,  where  it  appeared  that  deceased  #as  in  the  employ  of 
a  day  products  company  and  that  he  was  killed  while  at  work, 
by  the  fall  of  a  derrick  constructed  for  the  purpose  of  cleaning 
out  a  gas  well  owned  by  and  located  upon  the  property  of  an 
oil  company,  that  the  two  companies  had  certain  officers  in 


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NEGLIGENCE— con«nw6A 

oommoa  and  that  tbo  oil  oompany  furnished  natural  gas  used 
hy  the  products  company  in  the  operation  of  its  plant,  it  was 
rereraible  error  for  the  court  to  charge  that  the  defendant 
would  be  liable  if  the  jury  found  that  the  two  corporations  were 
in  fact  one  and  the  same,  where  there  was  no  evidence  to  sup- 
port the  charge. 

Hearsay  evidence  of  a  declaration  on  admission  by  an  agent 
made  after  the  accident  is  inadmissible. 

Where  it  appeared  that  the  superintendent  of  a  defendant 
corporation  was  dead  at  the  time  of  trial,  it  was  not  proper  to 
permit  witnesses  to  testify  as  to  declarations  made  to  them  by 
such  superintendent  after  the  accident,  to  the  effect  that  he  did 
not  want  plaintiff's  husband  to  go  to  a  weU,  but  he  finally  let 
him  go  and  that  in  the  end  he  had  plainly  told  deceased  to  go 
to  the  well. 

Had  there  been  express  testimony  by  some  one  who  had  ac- 
tually heard  the  order  alleged  to  have  been  given  by  the  super- 
intendent to  the  deceased  to  report  at  the  well,  and  had  the 
defendant  denied  the  giving  of  such  order,  the  alleged  decla- 
ration might  have  been  admitted  in  rebuttal. 

Where  it  appeared  that,  on  the  day  of  the  accident,  defend- 
ant's superintendent,  with  the  knowledge  and  consent  of  de- 
fendant, permitted  deceased  and  other  workmen  under  his  con- 
trol to  work  ahout  the  wells  of  the  oil  company  it  was  for  the 
jury  to  determine  whether,  in  view  of  the  close  relations  exist- 
ing between  the  two  companies,  the  deceased  was  working  for 
the  products  company  at  the  time  of  the  injury,  or  whether,  as 
contended  by  defendant,  he  was  working  for  the  oil  company, 
or  whether  he  was  a  mere  volunteer.  Brown  ▼•  Xittannlns 
Clay  Prodveta  Go.,  267. 

8.  Master  and  aervapt — Defective  scaffold — Fall  of  workman 
— Safe  place  to  work — Employer's  duty  to  inspect  and  repair—^ 
Delegation  of  duty — Foreman — Vice-principal — Obvious  dan- 
ger — Assumption  of  risk — Contributory  negligence — Case  for 
jury. 

A  scaffold  is  a  place  to  work  and  in  the  erection  thereof  tho 
employer  is  providing  a  place  to  work,  and,  if  through  failure 
of  duty  to  make  it  reasonably  safe  an  injury  results  to  another, 
he  is  responsible. 

It  is  the  duty  of  the  employer  i»>t  only  to  furnish  safe  tim- 
bers for  a  scaffold  and  to  have  it  properly  constructed,  but  also 
to  maintain  it  in  reasonably  safe  condition  by  inspection  and 
repair. 


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NEOIIGENOE— conitnuetf. 

An  employee  must  know  the  circnmstances  and  appreciate 
the  risk  before  he  will  be  held  to  have  aflsumed  it.  He  is  not 
equally  boimd  with  his  employer  to  know  whether  appliances 
are  reasonably  safe  and  in  ordinary  use  and  does  not  assume 
the  risk  upon  the  employer's  failure  to  provide  sudi  as  are 
proper. 

In  an  action  against  a  construction  company  to  recover  for 
the  death  of  plaintiff's  husband  occasioned  by  the  breaking  of  a 
scaffold  upon  which  he  was  working  while  in  defendant's  em- 
ploy, the  case  was  for  the  jury  and  a  verdict  and  judgment  for 
plaintiff  will  be  sustained  where  it  appeared  that  the  scaffold 
had  been  erected  by  other  men  in  defendant's  employ  about 
two  or  three  weeks  prior  to  the  accident,  which  occurred  on  the 
first  day  deceased  worked  on  the  building  and  about  an  hour 
after  he  began  work;  that  the  timber  used  in  the  broken  beam 
was  defective  in  not  being  sufficiently  large  for  the  purpose  of 
carrying  the  weight  for  which  it  was  intended,  that  it  con- 
tained wind-shakes  or  cracks  and  numerous  knots,  many  of 
which  extended  entirely  through  the  timber  and  could  be  seen 
externally  before  and  after  the  accident,  and  that  th^  weak- 
eaed  the  beam  and  thereby  diminished  its  carrying  capacity; 
and  that  no  inspection  of  the  scaffold  had  been  made  subse- 
quent to  its  construction  and  prior  to  the  accident  by  which 
the  defects  could  and  should  have  been  discovered  and  reme- 
died. 

In  such  case  the  duty  to  provide  a  safe  place  to  work  was  a 
nondelegable  duty  and  there  is  no  merit  in  defendant's  con- 
tention that  although  the  foreman  who  made  the  selection  of 
the  timber  was  a  vice-principal  there  was  no  evidence  of  his 
incompetency  and  his  mistake  therefore  did  not  amount  to 
negligence.     Swmrti  ▼•  Bersendalil-Kiasht  Co.,  421. 

9.  Master  and  servant — Electric  company — Wires — Defect- 
ive transformers — Notice — Death  of  lineman — Presumption  of 
care — Contributory  negligence  —  Conflicting  facts  —  Case  for 
jury. 

Where  a  lineman  employed  by  an  electric  company  is  killed 
while  working  around  live  wires  on  a  telegraph  pole  he  is  pre- 
sumed to  have  used  care. 

Where  the  facts  or  inferences  upon  which  the  question  of 
contributory  negligence  depends  are  in  doubt  that  question,  if 
controlling,  must  be  submitted  to  the  jury. 

In  an  action  against  an  electric  company  to  recover  for  the 
death  of  plaintiff's  son,  who  was  employed  by  defendant  as  a 
lineman,  the  question  of  defendant's  negligence  and  the  con- 


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tributory  negligence  of  the  decedent  are  for  the  jury  where  it 
appears  that  defendant's  foreman,  a  yice-prinoipal,  directed 
decedent  to  connect  certain  wires  at  or  near  a  transformer, 
which  had  been  out  of  repair  and  in  a  leaky  condition  for  some 
time  and  to  such  an  extent  as  to  electrify  the  metal  case,  of 
which  fact  defendant  had  notice;  that  decedent  climbed  the  pole 
pursuant  to  such  direction  and  immediately  came  in  contact 
with  the  transformer,  apparently  by  his  arm  touching  the  live 
case  as  he  put  it  in  the  four-inch  space  between  the  case  and 
the  buck-arm  while  fastening  his  safety  belt  around  the  pole; 
that  decedent  had  been  employed  as  a  lineman  for  from  ten  to 
twelve  months  and  was  ranked  in  the  lowest  of  three  classes 
of  workmen  as  to  experience  and  efficiency;  and  altliough  he 
had  been  instructed  as  to  the  dangers  of  the  business  and 
warned  not  to  touch  a  transformer  case,  he  had  not  been 
warned  of  the  defective  condition  of  the  transformer  in  ques- 
tion.   Faulk  T.  Dvgvesne  Idckt  Co.,  389. 

10.  Master  and  servant — Mines  and  mining  —  Bituminous 
Coal  Mine  Act  of  June  9,  1911,  P.  L.  756 — Construction  of 
passageway — Mine  foreman — Negligence  of  mine  foreman — 
Constructive  notice  of  defect — Contributory  negligence — Non- 
suit, 

The  rule  that  under  the  general  provision  of  the  mining 
acts  placing  the  workings  under  the  mine  foreman's  charge 
and  supervision,  and  under  certain  special  provisions  thereof, 
the  foreman  is  responsible  for  all  work  \a  the  course  of  the 
construction  of  passageways,  expressed  with  reference  to  prior 
statutes,  is  applicable  to  the  Act  of  June  9,  1911,  P.  L.  766. 

In  an  action  against  a  mining  company  to  recover  for  in- 
juries sustained  by  an  employee  in  consequence  of  the  fall  upon 
him  of  slate  from  the  roof  of  a  newly  constructed  passageway, 
a  compulsoiy  nonsuit  was  properly  entered  where  it  appeared 
that  the  passageway  was  being  constructed  under  the  super- 
vision of  the  mine  foreman;  that  his  attention  was  called 
to  the  dangerous  condition  of  the  roof,  but  that  it  was  not 
remedied ;  that  no  signal  was  placed  to  warn  employees  of  the 
danger;  that  the  foreman  told  plaintiff  and  other  workmen 
that  they  could  use  the  passageway,  and  that  the  next  day, 
while  plaintiff  was  using  it,  a  portion  of  the  roof  fell,  causing 
the  injuries  complained  of. 

In  such  case  had  the  new  entry  been  completed  a  sufficient 
period  of  time  before  the  accident  to  fix  the  defendant  with 
constructive  notice  of  the  defect  therein,  or  had  the  latter  re- 
ceived express  notice  of  its  faulty  condition,  or  had  the  way 


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NEGLIGENCE— con^tniicJ. 

existed  for  such  a  length  of  time  as  to  become  part  of  the 
established  plant,  or  bad  it  been  in  use  as  a  regular,  completed 
passage,  the  defendant  might  have  been  held  liable. 

It  seems  plaintiff  was  not  guilty  of  contributory  negligence 
under  the  facts  of  this  case.  CoMett*  t.  Pamltoa  Coal  Min. 
Go^  520. 

11.  Master  and  servant  —  Mines  and  mining  —  Damages  — 
Measure  of  damages — Evidence  —  Character  of  treatment  for 
injuries — Cross-examination  of  plaintiff. 

In  an  action  for  personal  injuries,  where  it  appears  that  at 
the  time  of  the  accident,  plaintiff  was  engaged  in  an  occupation 
yielding  him  a  low  wage,  it  is  nevertheless  competent  for  him 
to  prove  that  he  is  skilled  at  other  occupations  paying  a  higher 
wage,  especially  where  it  appears  that  his  inability  to  pursue  a 
more  profitable  occupation  at  the  time  of  the  injury  was  due  to 
a  temporary  condition  in  the  financial  and  industrial  world. 

In  such  case,  however,  it  was  error  to  permit  the  plaintiff  to 
express  a  guess  as  to  what  wages  he  could  earn  at  the  more 
profitable  occupation,  in  the  absence  of  evidence  as  to  the  gen- 
eral wage  scale  for  such  labor  or  that  the  witness  was  dis- 
tinguished by  superior  capacity  over  others  in  his  class  of  em- 
ployment. 

Where  in  an  action  for  personal  injuries  the  plaintiff  testi- 
fies as  to  the  extent  and  character  of  his  injuries  and  the  pain 
and  suffering  he  endured,  the  defendant  is  entitled  to  cross- 
examine  him  as  to  what  he  did  or  failed  to  do  in  order  to  ob- 
tain relief  and  improvement^  and  it  is  error  for  the  court  to 
refuse  to  allow  plaintiff  to  be  cross-examined  with  respect  to 
the  medical  and  surgical  treatment  he  received,  if  any,  im- 
mediately following  the  injury. 

Where  in  an  action  against  a  coal  mining  conipany  the  negli- 
gence charged  was  in  allowing  an  uncovered  hole  to  be  in  the 
path  of  an  employee  whose  daily  task  was  to  push  loaded  cars 
over  the  hole,  it  was  no  part  of  the  plaintiff's  case  to  show 
that  the  maintenance  of  such  bole  was  exceptional*  and  out 
of  the  usual  custom  of  the  operation  of  coal  mines,  and  an 
objection  to  the  admission  of  such  evidence,  should  have  been 
sustained.    Clark  t.  Bailer  JamotloB  Caal  Co^  262. 

12.  Master  and  servant — Mines  and  mining — Inexperienced 
minor — Striking  unexploded  charge  wUh  pick — Employ ei^s 
duty  to  warn  of  danger — Instruction — DelegaHon — Custom — 
Fellow  servant — Case  for  jury.  ^ 

Where  an  employer  delegates  an  older  and  experienced  fel- 
low servant  of  an  inexperienced  employee  to  instruct  and  quali- 


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NEGLIGENCE— con  hWei. 

fy  him  for  service,  the  employer  is  liable  for  the  negligence  or 
omission  of  the  instructor^  if,  by  reason  of  it,  the  employee 
suffers  injury.  A  servant  delegated  to  instruct  the  employee 
stands  for  this  purpose  in  the  place  of  the  employer. 

In  an  action  against  a  coal  mining  company  to  recover  for 
personal  injuries  sustained  by  a  minor  in  defendant's  employ 
due  to  the  failure  of  the  defendant  to  give  him  proper  instruc- 
tions as  to  the  danger  to  which  he  might  be  subjected  from  un- 
exploded  charges  having  been  left  in  the  coal  where  he  was 
directed  to  work  or  as  to  the  proper  method  of  avoiding  injury 
from  such  unexploded  shots  the  case  is  for  the  jury  and  a  ver- 
dict for  plaintiff  will  be  sustained  where  it  appeared  that  prior 
to  the  accident  plaintiff  had  been  employed  in  various  coal 
mines  for  fourteen  months  but  with  a  limited  experience  in  the 
use  of  explosives;  that  as  a  rule  he  had  worked  with  experi- 
enced miners  but  on  the  morning  of  the  accident  was  working 
alone  digging  coal  when  he  stuck  his  pick  into  the  coal  at  a 
point  five  or  six  inches  from  a  hole  and  an  explosion  immedi- 
ately followed,  causing  the  injuries  complained  of;  that  plain- 
tiff was  ignorant  of  the  danger  from  unexploded  shots  in  the 
coal,  and  had  never  been  warned  to  look  out  for  them  or  in- 
structed as  to  the  proper  method  of  guarding  against  injury 
from  them,  although  the  testimony  tended  to  show  a  custom 
to  give  such  instruction. 

In  such  case,  although  the  failure  to  report  the  existence  of 
the  unexploded  charges  was  due  to  the  negligence  of  another 
miner,  a  fellow  workman  of  the  plaintiff,  the  fellow-servant 
rule  is  not  applicable.    Jelio  t*  Jamison  C  A  C.  Co.,  447. 

13.  Master  and  servant — Railroad  company — Safe  place  in 
which'To  work — Assumption  of  risk — Case  for  jury. 

Where  in  an  action  against  a  railroad  company  to  recover 
for  personal  injuries  sustained  by  an  employee  standing  on  a 
ladder  on  the  side  of  a  moving  freight  car,  in  the  discharge  of 
his  duties,  being  caught  between  such  car  and  a  car  on  the 
n&si  track,  it  appeared  that  there  was  not  sufficient  clearance 
between  the  two  tracks  to  afford  a  safe  place  for  i^aintiff  to 
work;  that  the  plaintiff  did  not  know  that  the  clearance  be- 
tween the  tracks  was  less  than  the  standard  clearance  and  was 
insufficient,  but  had  walked  between  cars  standing  on  such 
tracks  hundreds  of  times  before  in  safety,  the  clearance  ordi- 
narily being  eighteen  inches;  and  that  at  the  time  of  the 
accident  he  was  cauight  by  reason  of  the  sudden  lurching  of 
the  car  on  the  next  track,  the  question  of  defendant's  negli- 
gence and  plaintiff's  assumption  of  risk  were  for  the  juiy,  and 


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a  verdict  for  the  plaintiff  will  be  sustained. 
B.  B.  Co.,  536. 

14.  Master  and  servant — Bafe  place  to  work — Fail — Suhcon^ 
tractors — Injuries  to  workmen — Liahilitp. 

Where  an  employer,  in  disregard  of  actual  or  constructiye 
notice  of  a  defect  in  the  supports  on  which  his  work  is  de- 
signed to  rest,  proceeds  without  correcting  the  same  and  injury 
results  to  his  employee  in  consequence  of  this  disregard,  the 
law  will  hold  him  guilty  of  culpable  negligence,  but  no  legal 
presumption  of  negligence  arises  in  the  first  instance  from 
the  accident  itself,  to  take  the  place  of  proof  of  negligence  or 
to  shift  the  burden  of  proof. 

A  master  is  not  liable  for  the  injury  to  his  servant  caused  by 
hidden  defects  or  dangers  in  the  machinery,  appliances  or 
premises  furnished  to  a  servant,  when  such  defects  or  dangers 
were  unknown  to  the  master  and  were  not  discoverable  by  the 
exercise  of  reasonable  care  and  skill  in  inspecting  them  and 
when  there  is  nothing  in  external  appearances  to  create  a  sus- 
picion of  their  presence. 

A  manufacturing  company  was  enlarging  its  plant  under  a 
contract  with  an  experienced  builder,  in  accordance  with  plans 
and  specifications  prepared  by  competent  architects.  It  made 
a  separate  contract  with  a  fire  extinguishing  company  for  the 
erection  of  a  fire  extinguishing  apparatus,  which  included  the 
construction  of  a  tank  upoh  foundations  and  supports  to  be 
provided  by  the  manufacturing  company.  The  contract  for 
the  tank  was  sublet  by  the  fire  extinguishing  company  and  a 
suitable  tank  was  erected  upon  the  supports.  The  tank  was 
filled  with  water  and  while  a  workman  in  the  employ  of  the 
fire  extinguishing  company  was  at  work  beneath  the  tank,  the 
supports  gave  way,  and  the  tank  fell  causing  serious  injury 
to  such  workman.  The  fire  extinguishing  company  had  no 
notice  that  the  supports  were  insufficient.  In  an  action  against 
the  fire  extinguishing  company  brought  by  such  workman 
plaintiff  contended  that  defendant  had  failed  to  furnish  him 
with  a  safe  place  to  work.  The  court  decided  that  the  defend- 
ant was  not  liable  for  defects  in  the  supports,  of  which  it  wa9 
not  aware  and  over  which  it  had  no  control,  and  directed  a  ver- 
dict for  defendant  upon  which  judgment  was  entered.  Held, 
no  error.    Moram  t.  Oen.  Fire  EztiBsmlAer  Co.,  168. 

15.  Master  and  servant  —  Safe  place  to  work  —  Proximaie 
cause — Minors  under  sixteen — Employment — Factory  Act  of 
AprU  a,  1909,  P.  L,  ^S^Violationr^Duplicate  lists^PosKng 
of  lists — Burden  of  proof — Exception, 


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NEGLIGENCE— cone»*M4«d. 

In  an  action  against  a  glass  manufacturing  company  to  re- 
cover for  personal  injuries  sustained  by  an  employee,  where  it 
appeared  that  plaintiff  was  engaged  in  hauling  glass  plates  to 
the  cutter  on  a  small  truck  and  placing  the  glass  in  racks  be- 
hind the  cutter's  table;  that  while  plaintiff  was  removing  a 
plate  from  the  truck  he  collided  with  the  cutter,  a  fellow  work- 
man, causing  the  plate  to  fall  and  injure  plaintiff ^s  foot;  that 
there  was  a  space  of  only  three  and  one-half  feet  between  the 
rack  and  the  cutter's  table;  that  such  space  was  insufficient 
for  both  plaintiff  and  the  cutter  to  work  in,  and  the  insuf- 
ficiency of  the  space  was  the  cause  of  plaintiff's  collision  with 
the  cutter,  there  was  sufficient  evidence  that  defendant  had  not 
provided  plaintiff  with  a  reasonably  safe  place  in  which  to  woiic 
and  a  verdict  for  the  plaintiff  will  be  sustained. 

The  provision  of  the  Factory  Act  of  April  29,  1909,  P.  L, 
283,  requiring  the  keeping  and  posting  of  lists  of  minors,  is 
mandatory  and  not  merely  directory.  Where  a  minor  imder 
the  age  ot  sixteen  years  is  employed  in  a  factory  and  is  in- 
jured, the  burden  is  upon  the  employer,  in  an  action  for  such 
injuries,  to  show  that  in  employing  such  minor  it  brought  itself 
within  the  exceptions  to  the  express  provisions  of  the  statute, 
prohibiting  the  employment  of  minors  of  this  age  in  its  fac- 
tory, and  if  it  fails  to  meet  this  burden  the  law  refers  the  in- 
jury sustained  by  the  employee  to  the  criminal  wrong  of  the 
employer  as  its  proximate  cause. 

Where  in  such  case  it  appeared  that  plaintiff  was  a  minor 
under  the  age  of  sixteen  years  and  that  defendant  had  violated 
the  Factory  Act  of  April  29, 1909,  P.  L.  283,  in  failing  to  keep 
two  lists  of  minors  under  such  age  employed  in  the  establish- 
ment, and  in  failing  to  post  one  list  in  the  department  in 
which  plaintiff  worked,  the  defendant  was  guilty  of  negligence 
and  such  negligence  was  in  law  the  proximate  cause  of  the 
accident  and  a  verdict  and  judgment  for  plaintiff  were  sus- 
tained.   Cbabot  T.  Pittsburgli  Plate  Glass  Co.,  504. 

16.  Municipalities — Accumulation  of  filth  on  street  and  side- 
walk — Woman  sweeping  off  sidewalk — Pushing  of  wire  in  mud 
with  hroom — Splashing  of  mud  —  Injury  to  eye  —  Proximate 
cause — Court  and  jury — Judgment  for  defendant  n,  o.  v. 

A  proximate  cause  is  one  which,  in  actual  sequence,  undis- 
turbed by  any  independent  cause,  produces  the  result  com- 
plained of.  A  prior  and  remote  cause  cannot  be  made  the 
basis  of  an  action  if  such  remote  cause  did  nothing  more  than 
furnish  the  condition  or  give  rise  to  the  occasion  by  which  the 
injury  was  made  possible  if  there  intervened  between  such 


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684  INDEX. 

NEGLIGENCE— conWnucJ. 

prior  or  remote  cause  and  the  injury  a  distinct*  ^uooessive,  un- 
related and  efficient  cause  of  the  injury. 

The  injury  must  be  4he  natural  and  probable  consequence  of 
the  negligence;  such  a  consequence  as  under  the  circum- 
stances might  and  ought  to  be  foreseen  by  the  wrongdoer  as 
likely  to  flow  from  his  acts. 

The  facts  being  undisputed  the  qu^tion  of  proximate  cause 
is  for  the  court. 

In  an  action  against  a  municipality  to  recover  damages  for 
personal  injuries  it  appeared  that  the  defendant  had  raised  the 
grade  of  a  lot  causing  water  and  mud  to  overflow  plaintiffs 
sidewalk;  that  plaintiff*  while  sweeping  off  the  sidewalk*  in  an 
effort  to  remove  a  coil  of  wire  which  had  become  lodged  in  the 
pavement  or  gutter  pushed  it  with  her  broom  so  that  it  sprang 
back  and  sent  a  splash  of  the  street  mud  into  her  eye*  causing 
the  loss  of  the  sight  thereof.  Held,  the  pushing  of  the  coiled 
wire  and  not  the  presence  of  the  mud  was  the  proximate  cause 
of  the  accident  and  judgment  was  entered  for  the  defendant 
non  obstante  veredicto.    Br«cceaum  t.  Tovk,  94. 

17.  Oil  companies — Fires  —  Origin  —  Engines  —  Hot  tube 
method — Dangerous  machinerp — Custom  of  business — Proxi- 
m(Ue  cause — Case  for  jury. 

In  an  action  against  an  oil  company  to  recover  damages  for 
injuries  to  plaintiff's  premises  caused  by  Are  alleged  to  have 
been  communicated  from  defendant's  pumping  station*  the 
case  is  for  the  jury  and  a  verdict  fot  the  plaintiff  will  be  sus- 
tained where  it  appeared  that  the  engines  in  such  station  were 
equipped  with  the  hot  tube  method  of  ignition  causing  an 
open  flame  to  come  in  contact  with  escaped  oil*  and  such 
method  of  operation  was  more  dangerous  than  that  customarily 
in  use. 

In  such  case  plaintiff  was  not  bound  to  exclude  by  her  proofs 
every  possible  theory  as  to  the  fire's  origin  at  variance  with 
her  own,  but  was  required  only  to  exclude  every  other  reason- 
able theory.    Ruu«e  t.  P.  *  B.  OU  0«.*  491. 

18.  Railroad  crossings — "Stop,  look  and  listen'* — Presump- 
tion— Contributory  negligence — Burden  of  proof — Nonsuit — 
Evidence — Leading  question. 

While  the  plaintiff  is  bound  to  prove  negligence  on  the  part 
of  defendant  in  an  action  for  personal  injuries  and  that  this 
negligence  was  the  cause  of  the  injury,  he  is  not  bound  to  go 
further  and  prove  that  he  did  not  contribute  to  the  result  by 
his  own  negligence.  That  burden  is  on  defendant  unless  the 
evidence  produced  discloses  contributory  negligence. 


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INDEX.  685 

NEGLIGENCE— conttnued. 

The  rule  of  Carroll  v.  Penna.  R.  R.  Co.,  12  W.  N.  C.  348, 
applies  only  where  a  person  enters  upon  a  railroad  track,  and 
is  struck  by  a  moving  train  so  instantaneously  as  to  raise  a 
legal  presumption  that  he  did  not  stop,  look  and  listen,  and  to 
rebut  any  presumption  that  he  had  done  so.  Where  there  is  a 
doubt  as  to  the  negligence  upon  the  part  of  the  plaintiff  the 
case  is  for  the  jury. 

In  an  action  against  a  railroad  company  to  recover  damages 
for  personal  injuries  sustained  in  a  grade  crossing  collision, 
where  it  appeared  that  at  the  place  where  the  accident  occurred 
the  defendant  maintained  six  tracks,  and  that  approaching 
the  tracks  from  the  direction  from  which  the  plaintiff  came 
there  were  two  side  tracks,  an  open  space  twenty-four  feet  in 
width,  and  then  four  main  tracks ;  tliat  as  plaintiff  approached 
the  side  tracks  he  stopped  and  looked  up  and  down  the  tracks 
and  waited  for  a  freight  train  to  pass;  that  he  then  crossed  the 
Bide  tracks,  and  while  in  the  space  between  the  side  tracks  and 
main  tracks  looked  up  and  down  and  heard  no  train  coming 
but  did  not  stop,  although  there  was  sufficient  space  for  him 
to  do  so;  that  the  rear  of  plaintiff's  sled  was  struck  just  as  it 
was  about  to  cross  the  far  rail  of  the  last  main  track,  the 
question  of  plaintiff's  contributory  negligence,  including  the 
question  whether  he  should  hav6  stopped  again  after  entering 
upon  the  side  tracks,  is  for  the  jury. 

The  common  law  rule  is  that  a  question  is  leading  where  it 
embodies  the  material  facts,  and  admits  of  an  answer  by  a 
simple  affirmative  or  negative;  but  in  modern  times  this  rule 
has  been  somewhat  departed  from  by  a  number  of  decisions 
which  hold  that  such  a  categorical  question  is  not  necessarily 
leading,  providing  of  course  that  it  is  not  so  framed  as  to  give 
an  intimation  as  to  which  answer  is  desired. 

Where  in  an  atition  for  injuries  sustained  at  a  railroad  grade 
crossing  plaintiff's  counsel  asked  ''Did  you  hear  any  train  com- 
ing down  ?"  and  plaintiff  answered,  "No,"  and  thereupon  plain- 
tiff was  asked  **Did  you  listen  for  a  train  coming  down?"  the 
contention  that  the  question  was  leading  was  without  merit, 
and  the  court  erred  in  sustaining  an  objection  thereto. 

In  such  case  the  question  '^Were  you  in  a  position  where  you 
could  have  heard  the  whistle  of  that  train  if  it  had  been  blown  f 
put  to  one  of  plaintiff's  witnesses  on  direct-examination,  does  not 
indicate  the  answer  desired  and  therefore  is  not  leading  and 
was  erroneously  excluded  by  the  trial  judge.  Waltosfc  t. 
Penma.  R.  R.  Co.,  372. 


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686i  INDEX. 

NEQUQENCE— continued. 

19.  Bailroads — Ejection  of  passenger  at  dangerous  place — 
Damages — Compensatory  and  exemplary  damages — Pleadings 
— Statement  of  claim — Amendment — Departure — Measure  of 
damages — Present  worth  —  Instructions  —  Failure  to  request 
more  specific  instructions. 

In  an  action  of  tort,  damages  necessarily  following  as  a  nat- 
wtsl  and  probable  result  of  the  injury  may  be  proved  without 
special  averment  as  defendant  will  be  presumed  to  be  aware 
of  such  consequences  of  his  conduct^  and  hence  cannot  plead 
surprise  when  proof  of  such  injury  is  made.  Damages  of  a 
special  nature  and  not  the  usual  consequences  of  the  wrong 
complained  of,  however,  must  be  specially  averred  that  defend- 
ant may  be  informed  of  the  claim  and  given  an  opportunity  to 
prepare  his  defense;  but  where  the  action  is  for  injuries  to  the 
person  the  jury  may  consider,  without  special  averment,  pain 
and  suffering,  expense  incurred  for  medical  treatment  and  loss 
of  time  caused  by  inability  to  work  at  the  usual  occupation  of 
the  injured  person,  inasmuch  as  these  are  the  natural  and  usual 
results  of  an  injury. 

In  an  action  to  recover  damages  for  death  of  plaintiff's  hus- 
band due  to  the  alleged  negligence  of  the  employees  of  defend- 
ant railroad  company  in  ejecting  deceased  from  its  car  at  a 
dangerous  place,  in  consequence  of  which  he  was  killed  by  a 
passing  train,  defendant  complained  of  the  admission  in  evi- 
dence of  matters  tending  to  show  loss  of  earnings  and  profits 
of  deceased  as  a  farmer  as  a  basis  for  compensatory  damages, 
where  plaintiff's  statement  claimed  exemplary  and  punitive 
damages  only.  The  statement  first  contained  an  averment 
that  plaintiff  claimed  damages  "in  the  sum  of  twenty-five  thou- 
sand dollars  ($25,000)  and  in  addition  to  the  above  sum  claims 
punitive  damages  from  said  defendant  company,  upon  a  cause 
of  action  whereof  the  following  is  a  statement.''  Succeeding 
paragraphs  set  forth  the  manner  in  which  deceased  met  his 
death,  and  that  his  loss  of  life  was  due  to  defendant's  em- 
ployees **wilfully,  wantonly,  knowingly  and  unlawfully*'  eject- 
ing him  from  its  train  at  a  dangerous  place.  Plaintiff  also 
averred  deceased's  occupation  was  that  of  a  farmer  and  that  he 
"derived  great  gains  and  emoluments  from  tilling  the  soil  and 
kindred  industries,  a  large  portion  of  which  went  to  the  main- 
tenance and  support  of  her  and  her  family^"  of  which  she  had 
been  deprived  through  the  negligence  of  defendant  Plaintiff 
also  claimed  to  recover  for  funeral  expenses,  and  for  the  loss 
of  the  companionship  of  her  liusband.  The  concluding  para- 
graph stated :   ''Whereiore,  and  by  reason  of  which,  she  claims 


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INDEX  687 

NEGLIGENCE— conttnueA 

damages  in  the  sum  of  twenty-five  thousand  dollars  as  ex- 
emplary damages,  and  in  addition  thereto  she  claims  punitive 
damages  for  the  wilful,  wanton,  reckless,  careless  and  unlaw- 
ful conduct''  of  defendant's  employees.  Plaintiff  admitted  the 
terms  ^'exemplary  damages"  and  'punitive  damages"  were 
synonymous  in  practice,  and  claimed  the  word  ^'exemplary" 
was  inserted  in  the  statement  by  mistake  for  the  word  '^com- 
pensatory."  No  offer  to  amend  in  this  respect  appears  to  have 
been  made  but,  in  dismissing  defendant's  motion  for  a  new 
trial,  the  court  below  held  the  testimony  offered  as  to  loss  of 
earnings  was  fully  covered  by  the  paragraph  of  the  claim  re- 
lating to  the  occupation  of  deceased  and  that  the  limitation  in 
the  concluding  paragraph  did  not  necessarily  prevent  the  in- 
troduction of  evidence  to  show  compensatory  damages.  De- 
fendant did  not  plead  surprise  and  case  was  tried  on  above 
theory.    Held,  no  error. 

The  error  in  the  statement  might  have  been  amended  at  any 
time  since  it  would  not  set  up  a  new  cause  of  action  barred  by 
the  statute  of  limitations.  The  cause  of  action  being  the 
wrongful  act  of  negligence  resulting  in  the  injury  to  the  plain- 
tiff, an  amendment  merely  adding  an  additional  item  of  claim 
for  damages  issuing  out  of  the  same  wrongful  act  is  not  a  de- 
parture. 

In  such  case,  in  charging  on  the  measure  of  damages  based 
on  the  earnings  of  the  deceased,  the  court  said  that  in  fixing 
the  amount  of  earnings  the  jury  should  consider  the  age, 
health,  ability  and  disposition  to  labor  and  the  habits  of  living 
of  deceased  and  referred  to  the  testimony  touching  the  extent 
of  his  farming  occupation.  Held,  that  although  the  instruc- 
.tion  in  this  respect  was  brief  it  was  not  erroneous  and  in  the 
absence  of  a  request  from  defendant  for  further  specific  in- 
structions, did  not  constitute  reversible  error. 

In  such  case,  in  instructing  the  jury  on  the  question  of  the 
present  worth  of  future  earnings,  the  court  charged:  **So  far 
as  compensation  depends  or  is  estimated  upon  future  earnings 
or  accumulations,  such  earnings  or  accumulations  are  to  be 
anticipated  and  capitalized  and  their  present  worth  deter- 
mined. That  is,  what  lump  sum  paid  now  would  be  their 
equivalent?"  Held,  that  the  instruction,  although  brief,  was  a 
correct  statement  of  the  law  and  that  in  the  absence  of  a  re- 
quest for  more  extended  charge,  did  not  constitute  reversible 
error.  Leonard  t.  B.  A  O*  B.  B.  Co.,  61. 
I  20.  Railroads — Evidence — Res  gestas — Conversation'-^ Rulr 
ings  hp  trial  judge — Questions  considered  on  appeal. 


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ess  INDEX. 

NEGLIGENCE— conftnuerf. 

In  negligence  cases  where  the  actual  occurrence  is  confined 
to  a  brief  space  of  time,  the  res  gestn  of  the  transaction  is  ac* 
cordingly  limited,  and  the  period  when  declarations  become 
merely  a  narrative  of  a  past  occurrence  ordinarily  begins  im- 
mediately after  the  accident.  If  the  transaction  is  complete 
and  ended,  its  ending  marks  the  limitation  of  the  res  gests 
of  the  event  and  declarations  subsequent  thereto  become 
merely  narrative  of  past  matters. 

In  an  action  against  a  railroad  company  to  recover  dam- 
ages for  death  of  plaintiff's  husband  through  alleged  negli- 
gence of  defendant's  employees  in  ejecting  him  from  its  car 
at  a  dangerous  place,  the  admission  of  evidence  over  defend- 
ant's objection  of  a  conversation  between  the  conductor  of  the 
train  and  the  witness  shortly  after  deceased  had  been  ejected 
and  after  tlie  train  had  departed  from  the  next  station  after 
receiving  and  discharging  passengers  at  that  stop,  was  re- 
versible error. 

Where  plaintiff's  evidence  as  to  a  conversation  after  l^e  ac- 
cident was  objected  to  as  not  being  pertinent  and  plaintiff's 
counsel  urged  its  competency  because  of  "its  happening  so 
close  to  the  time"  and  immediately  afterwards  the  trial  judge 
overruled  defendant's  objection,  it  cannot  be  urged  on  appeal 
that  the  question  of  res  gestsB  was  not  considered  or  ruled  in 
the  court  below*    I^eoaArd  ▼.  B.  *  O.  R.  R.  Co^  51. 

21.  Railroads — Grade  crossing — Pedestrians — Deafness — De-- 
gree  of  care — Deaih — Presumption  of  care — Behuital  of  pre- 
sumption — Contributory  negligence — Evidence  —  Rebuttal  — i 
Absence  of  lights  on  engine — Engine  visible — Harmless  error 
— Directed  verdict  for  defendant. 

Where  a  pedestrian  is  deaf  a  higher  degree  of  care  is  im- 
posed upon  him  at  a  railroad  grade  crossing. 

When  a  pedestrian  walks  in  front  of  a  moving  train,  in  spite 
of  the  information  afforded  by  his  eyes  and  ears  and  is  im- 
mediately struck,  he  is  guilty  of  contributory  negligence. 

It  is  a  traveler's  duty  to  keep  a  lookout  while  crossing  rail- 
road tracks  as  well  as  to  stop  before  attempting  to  cross. 

In  an  action  against  a  railroad  company  to  recover  dam- 
ages for  death  of  plaintiff's  husband,  occasioned  by  his  being 
struck  by  a  locomotive  at  a  grade  crossing,  a  verdict  was  prop- 
erly directed  for  defendant  where  it  appeared  that  at  the 
crossing  in  question  there  was  a  single  track  line  with  a  switch 
on  the  near  side;  that  plaintiff  stopped,  apparently  to  look  and 
listen  just  before  crossing  the  switch  track,  that  no  bell  or 
whistle  was  sounded  but  that  the  evening  was  clear  ahd  de- 


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INDEX.  689 

NEGLIGENCE— conhntied. 

ceased  could  have  seen  the  engine  in  time  bad  he  looked ;  and 
that  deceased  was  struck  immediately  after  stepping  upon  the 
track. 

In  such  case,  where  defendant's  evidence  was  that  the  head- 
light and  other  lights  on  the  engine  were  burning,  the  court  im- 
properly excluded  evidence  in  rebuttal  to  show  that  there  was 
no  headlight  on  the  engine,  on  the  ground  that  such  evidence 
shoiild  have  been  presented  as  part  of  plaintiff's  case  in  chief; 
but  where  it  appeared  that  the  engine  was  clearly  visible  as  it 
approached  the  crossing,  such  evidence  could  not  have  changed 
the  result  and  its  rejection  was  harmless.  Kreiia  t.  Pitts- 
Imrsh,  C  C.  *  St.  Ii.  By.  C,  443. 

22.  Railroads — Locomotive  whistle — Deafening  of  fireman  on 
locomotive  on  next  track — Interstate  commerce — Federal  Em- 
ployers  Liability  Act — Fellow-servant  rule — Failure  to  warn 
of  blowing  of  whistle-common  knowledge — Evidence — Cua- 
tom  to  warn — Admissibility. 

When  a  locomotive  fireman,  employed  by  a  railroad  company 
on  an  engine  engaged  in  drawing  a  train  in  interstate  com- 
merce, is  injured,  the  Federal  law  governs  and  the  fellow- 
servant  rule  is  not  applicable. 

Where  in  an  action  by  a  locomotive  fireman  against  a  rail- 
road company,  engaged  in  interstate  commerce,  by  which 
plaintiff  had  been  employed,  to  recover  for  injuries  to  his  hear- 
ing caused  by  the  blowing  of  the  whistle  of  another  locomotive 
standing  upon  an  adjoining  track  and  within  ten  feet  of  plain- 
tiff, it  appeared  that  suddenly  and  without  warning  two  loud 
shrill  blasts  were  emitted  from  the  whistle,  and  that  plaintiff 
immediately  felt  a  pain  in  his  ear,  and  thereafter  became 
totally  deaf  in  such  ear,  but  where  there  was  no  evidence  to 
justify  a  finding  that  the  experience  or  knowledge  which  an 
engineer  might  be  expected  to  have  should  have  warned  the 
engineer  who  blew  the  whistle  that  he  should  first  give  notice 
to  the  plaintiff,  the  jury  were  not  warranted  in  finding  that 
defendant  or  its  servants  had  reason  to  anticipate  that  the 
blowing  of  the  whistle  was  likely  to  affect  plaintiff  injuriously, 
and  a  verdict  for  the  plaintiff  could  not  be  sustained. 

The  effect  upon  bystanders  of  the  blowing  of  a  locomotive 
whistle,  under  such  circumstances,  is  hardly  a  matter  of  com- 
mon knowledge,  and  it  must  therefore  be  shown  by  evidence. 

Where  in  such  case  it  appeared  that  plaintiff  offered  to 
prove  that  it  was  customary  to  give  warning  to  persons  work- 
ing within  a  distance  of  ten  or  fifteen  feet  of  the  whistle 
of  an  engine  standing  in  the  yard  before  the  whistle  was  blown, 

.Vol.  cclix— 44 


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690  INDEX. 

NEQLIGENOE-<on«nuerf. 

and  that  it  was  the  general  custom  for  those  in  charge  of  such 
an  engine  to  look  about  for  persons  in  close  proximity  to  the 
engine  whistle  and  to  warn  them  that  the  whistle  was  about 
to  be  blown,  the  refusal  of  such  offer  on  the  part  of  the  trial 
judge  was  error,  and  on  appeal  by  the  defendant  from  the 
judgment  entered  in  favor  of  the  plaintiff,  the  Supreme  Court 
will  not  enter  judgment  for  defendant  n.  o.  y.  but  must  grant 
a  new  trial    VLojmv  ▼•  PaBma.  B.  B.  Co.»  438. 

NEW  TRIAL. 

1.  After-discovered  evidence — Cumulative  evidence  —  Mur- 
der— First  degree — Lying  in  wait — Evidence — Adverse  wit- 
ness—  Cross-examination  —  Evidence  of  witnesses  previous 
statement — Threats — III  feeling — Remoteness  —  Admissibility 
— Motive — Scope  of  cross-examination  of  defendant — Improp- 
er remarks  of  district  attorney — Failure  to  object — Dying  dec- 
laration— Conflicting  declarations — Defenses-^ Alibi.    Cooi.  t. 

2.  Criminal  law — Murder  —  Voluntary  manslaughter  —  In- 
voluntary manslaughter—Charge — Conflicting  instructions — 
Erroneous  instructions — Pointing  gun  to  frighten  —  Evi- 
dence— Self-defense — Scope  of  direct  examination  of  defend- 
ant,   CmwBu  T.  WooUy,  249. 

3.  Order  granting  new  trial — Judicial  discretion — Practice, 
C.  P.    Fulglmiti  ▼.  DUmond  C.  *  C.  Co.,  344. 

NONSUIT. 

1.  Decedents'  estates — Claim  for  domestic  services.  Fmr- 
low  T.  BolABd,  70. 

2.  Evidence  —  Leading  question  —  Negligence  —  Railroad 
crossings — "Stop,  hole  and  listen" — Presumption — Contribu- 
tory negligence — Burden  of  proof.  Wftlioah  t.  P«bjuu  B.  B. 
Co.,  372. 

3.  Negligence — Master  and  servant — Mines  and  mining — 
Bituminous  Coal  Mine  Act  of  June  9,  1911,  P.  L.  766 — Con- 
struction of  passageway — Mine  foreman — Negligence  of  mine 
foreman — Constructive  notice  of  defect.  Gossette  t.  Pavltoa 
Coal  Min.  Co.,  520. 

4.  Partnerships — Existence  of  partnership  —  Evidence — In- 
sufficiency— Going  business  —  Assignment  to  alleged  partners 
— Status  of  Assignees — Trustees — Tenants  in  common — Shar- 
ing of  profits — Promissory  notes — Assignment  for  creditors — 
Accounting — Commissions.  First  If  at.  Paak  ▼•  Gitt  and 
DeloM,  84. 


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INDEX.  691 

NOTICE. 

1.  Negligence — Master  and  servani  —  Electric  company  — 
Wires — Defective  transformers — Death  of  lineman — Presump- 
tion of  care — Contributory  negligence — Conflicting  facts — 
Case  for  jury,    Faulk  t.  Dvgvesne  Ught  Oo»,  889. 

PAKENT  AND  CHILD. 

1.  Failure  of  father  to  support  child — Insanity  of  father — 
Death  of  fathers—Act  of  May  28,  1915,  P.  L.  680— Decree  of 
adoption  —  Consent  of  mother  —  Subsequent  proceedings  by 
mother  to  set  decree  aside — Status  of  committee — Appeal — 
Certiorari,    Helea  Frances  Tovas's  Adoption,  573. 

PAEKS. 

1.  Appropriation  of  land — Boroughs  —  Eminent  domain  — 
Act  of  May  U,  1915,  P.  L.  S12'U2^Indebtedness  in  excess  of 
statutory  limit — Failure  to  submit  to  vote  of  people — Failure 
to  pay — Mandamus  —  Courts — Power  over  process,  Viokroy 
T*  Femdmle  Boro.*  321. 

PAETITION. 

1.  Real  estate — Minerals — Owner  of  land  only.  Tonns's 
Eatato,  206. 

PARTNERSHIPS. 

1.  Existence  of  partnership — Evidence — Insufficiency — Oo- 
ing  business — Assignment  to  alleged  partners — Status  of  as- 
signees— Trustees — Assignment  for  creditors- — Accounting — 
Commissiotis  —  Tenants  in  common  —  Sharing  of  profits  — 
Promissory  notes — Nonsuit, 

A  division  of  the  product  of  property  between  tenants  in 
common  does  not  make  them  partners,  although  they  may  have 
contributed  labor  or  money  to  raise  it. 

In  an  action  on  promissory  notes  against  two  defendants  as 
copartners  it  appeared  that  the  owner  of  a  going  business 
entered  into  a  written  agreement  with  the  defendants  under 
which  he  turned  over  his  entire  estate  to  them  for  the  purpose 
of  administration;  that  they  were  to  convert  the  property 
into  cash  and  apply  the  proceeds  first  to  the  payment  of  the 
claims  of  creditors,  then  to  the  payment  of  an  annuity  to  the 
assignor,  then  to  other  purposes  specified;  and  that  defend- 
ants were  to  retain  for  themselves  the  residue  which  might 
be  left  after  such  payments  had  been  made.  It  did  not  appear 
that  any  profits  were  made,  or  that  the  business  was  carried 
on  for  that  purpose  or  that  there  was  any  understanding  be- 


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692  INDEX, 

PAKTNERSHIPB— con^intiecf. 

tween  the  defendants  as  to  the  sharing  of  profits,  or  that  they 
held  themselves  out  as  partners  to  the  plaintiff.  The  notes  in 
question  were  givei  hy  one  defendant  and  represented  an  old 
indebtedness  of  the  assignor's  business,  such  def^dant  endors- 
ing the  notes  in  tne  business  name  and  individually.  The 
other  defendant  had  nothing  to  do  with  the  negotiation  of  the 
notes.  Held,  the  defendants  were  not  partners  but  trustees, 
and  a  compulsory  nonsuit  was  properly  entered  as  to  the  de- 
fendant who  did  not  endorse  the  note. 

The  transaction  was  in  the  nature  of  an  assignment  for 
benefit  of  creditors,  involving  an  accounting;  the  residue  rep- 
resenting commissions  of  the  assignees.  First  Jfat.  B«ak  t. 
Oltt  and  Deloae,  84. 

PEDESTRIANS. 

1.  Deafness — Degree  of  care — Death — Presumption  of  care 
— Rebuttal  of  presumption  —  Contributory  negligence  —  j&vt- 
dence — Rebuttal — Absence  of  lights  on  engine — Engine  visible 
— Harmless  error — Directed  verdict  for  defendant — Negligence 
— Railroads — Grade  crossing,  Kreaa  ▼•  Pittsbvrsli,  C,  C. 
*  St.  L.  B7.  Co.,  443. 

PERPETUITIES,  see  Rule  against 

PLEADING. 

1.  Brewing  company — Moving  machinery — Change  in  oper- 
ation — Increased  danger — Failure  to  notify  employee — Con- 
tributory negligence — Instructions  to  jury — Failure  to  request 
— Negligence — Earning  power — Charge  of  court  —  Variance, 
Teacer  t.  Aathraoite  Brewimc  Co.,  123. 

2.  Landlord  and  tenant  —  Leases  —  Covenant  not  to  alter 
without  lessor^ s  consent  —  Lessor's  refusal — Good  faith — Al- 
leged condition — Construction — Forfeiture — Act  of  S2  Henry 
VIII,  Ch.  S4,  Rev.  Stat.  l-^Act  of  May  U,  1916,  P.  L.  iSS, 
Sec.  ^ — Practice,  C.  P. — Judgment  on  warrant — Framing  is- 
sue —  Evidence  —  Written  instruments — Parol  evidence  — 
Fraud,  accident  and  mistake.    Williama  ▼.  Jfotopolos,  469. 

8.  Negligence — Railroads — Ejectment  of  passenger  at  dan- 
gerous place — Damages — Compensatory  and  exemplary  dam,- 
ages — Statement  of  claim — Amendment — Departure — Measure 
of  damages — Present  worth — Instructions — Failure  to  request 
more  specific  instructions.    Iioomard  ▼,  B.  4k?  O,  R.  B.  Con  51. 


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INDEX.  693 

PRACTICE,  C.  P. 

1.  Affidavit  of  defense — Corporation  defendani-^Affidavit  hy 
person  not  officer — Insufficiency — Act  of  May  H,  1916,  F.  L. 
iSS.    Bfiats  ▼•  Tri-Coimt7  Nat.  Om  Co.,  477. 

2.  Affidavit  of  defense — Insufficiency — Mortgages — Death  of 
mortgagor — Scire  facias  against  heirs — Failure  to  join  admin- 
istrator.    Herron  ▼•  SteTenson,  354. 

3.  Conditional  appearance  to  set  aside  service — Waiver  hy 
defense  on  merits,    Vaadenloot  t.  Peiuta.  W.  A  P.  Co..  99. 

4.  Constitutional  law — Const,  of  U.  8.,  Art.  I,  Sec,  10,  and 
Art.  Ill,  Sees.  16  and  21 — Property  rights — Payment  of  money 
hy  State  without  appropriation — Limitation  of  action  against 
corporation — Banks  and  hanking — Deposits — Failure  to  de- 
mand money  within  thirty  years — Payment  to  State — Deposi- 
tors right  against  State — Contract  subject  to  statute — Acts 
of  April  17,  1872,  P.  L.  62,  and  May  11,  1909,  P.  L.  619^Var 
lidity — Affidavits  of  defense — Insufficient  averments.  Com. 
▼•  Dollar  SaTincs  Baak»  138. 

6.  Judgment  on  warrant — Framing  issue — Evidence — Writ' 
ten  instruments — Parol  evidence  —  Fraud,  accident  and  mis' 
take — Landlord  and  tenant — Leases — Covenant  not  to  alter 
without  lessor's  consent — Lessor's  refusal — Oood  faith — Al- 
leged condition — Construction — Forfeiture — Act  of  32  Henry 
VIII,  Ch.  Sk,  Rev.  Stat.  1-— Pleadings— Act  of  May  U,  1915, 
P.  L.  A8S,  Sec.  2.    WiUiams  ▼.  Hotopoloa,  469. 

6.  Jurisdiction,  C.  P. — Public  Service  Commission — Com- 
plaint— Street  railways — Change  of  rates> — Reasonableness — 
Boroughs — Contracts — Bill  in  equity — Dismissal — Findings  of 
Public  Service  Commission — Appeal — Act  of  July  26,  1913, 
P.  L.  137 Jf.    St.  Clair  Boro.  ▼.  T.  *  P.  Eleo.  Kj.  Co.,  462. 

7.  New  trial — Order  granting  new  trial  —  Judicial  discre- 
tion. 

Whenever  a  trial  court, is  convinced  that  a  verdict  has  been 
obtained  through  improper  influence  exerted  upon  witnesses,  it 
is  not  only  the  right,  but  it  is  the  duty  of  the  court  in  the  in- 
terest of  public  justice  to  order  a  retrial  of  the  case. 

A  motion  for  a  new  trial  is  always  an  appeal  to  the  dis- 
cretion of  the  trial  court,  and  the  action  of  the  lower  court 
thereon  is  reviewable  by  the  Supreme  Court  only  as  it  can  be 
made  to  appear  that  the  court's  action  was  a  clear  abuse  of 
that  discretion. 

The  action  of  a  court  in  conditioning  its  grant  of  a  motion 
for  a  new  trial  on  the  refusal  by  the  defendant  to  pay  a  cer- 
tain sum  into  court  to  the  use  of  the  plaintiff,  in  satisfaction 


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694  INDEX. 

PRACTICE,  C.  F. -continued. 

of  all  his  claims  and  demands,  is  not  free  from  criticism. 
FulsimiU  T.  Diamomd  C.  *  C  Co^  344. 

8.  Railroads — Belief  fund— Death  henefUs  —  Suit  at  law — 
Recovery — Satisfaction — Subsequent  claim  against  relief  fund 
— Affidavits  of  defense — Sufficiency — Act  of  Congress  of  April 
22,  1908.    Oetkin  t.  Pemm*.  R.  R.  Co.,  150. 

9.  Statement  of  claim — Amendment — Departure — Measure 
of  damages — Present  worth — Instructions — Failure  to  request 
m^re  specific  instructions  —  Negligence  —  Railroads  —  Eject- 
ment of  passenger  at  dangerous  place — Damages— Compensor 
tory  and  exemplary  damages — Pleadings,  L«om*rd  t.  B*  4^ 
O.  B.  B.  Co.,  51. 

10.  Statement  of  claim — Insufficiency — Affidavit  of  defense 
in  nature  of  demurrer — Practice  Act  of  May  H,  1916,  P.  L. 
483 — Contracts  —  Written  contracts  —  Subsequent  and  parol 
agreement — Advancing  time  for  completing  work — Absence  of 
provision  as  to  increased  compensation — Quantum  meruit  for 
increased  cost.  Bo1i«rt  Qrm^  Coat.  €^  t.  N.  *  W.  By.  Oo^ 
241. 

11.  Workmen's  compensation  law  —  Award  by  Workmen's 
Compensation  Board  —  Appeal  to  Common  Pleas  Court — Or- 
der remanding  case  to  board — Erroneous  order — Interlocutory 
order.    Bakie  t.  Jefferaoa  St  GleaHleld  0*  *  I.  Co.*  534. 

PRACTICE,  SUPREME  COURT. 

1.  Appeals — Auditing  judge — Findings  of  fact — Conclusive- 
ness. 

In  the  absence  of  a  clear  and  manifest  error  the  findings  of 
fact  of  an  auditing  judge  on  conflicting  evidence  will  be  sus- 
tained.   Edmundson'fl  Estate,  429. 

2.  Appeals — Errors  due  to  conduct  of  appellant's  counsel — 
Defective  assignments. 

In  an  action  of  assumpsit  brought  by  a  physician  to  recover 
compensation  for  professional  serrices,  where  the  controlling 
questions  of  fact  and  law  were  not  numerous,  intricate  or  con- 
fusing, but  were  made  so  by  the  conduct  of  counsel  during  the 
trial,  and  upon  a  review  of  the  whole  record,  it  appeared  that, 
under  the  competent  evidence  submitted  to  the  jury,  there  was 
no  merit  in  the  plaintiff's  claim,  a  verdict  for  the  defendant 
will  be  sustained  although  there  might  have  been  tecfatiical 
errors,  resulting  from  the  conduct  of  counsel  at  the  trial,  es- 
pecially where  the  rules  relating  to  assignments  of  error  were 
violated.    Vmrrmj  t.  Imitk,  518. 


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PEACTICE,  SUPREME  OOlTRT—contmued. 

3.  Appeal  from  order  refusing  to  set  aside  service--^ on^ 
ditional  appearance — Waiver  hy  defense  on  merits. 

Defendant  may  appeal  from  an  order  refusing  to  set  aside 
service  Tvftiere  lie  has  entered  a  conditional  appearance  for  the 
purpose  of  taking  such  rule,  or  may  defend  the  action  on  its 
merits.  He  is  required  to  elect  one  of  the  two  courses,  and  is 
bound  by  the  legal  consequences  of  the  course  elected.  Van- 
denloot  T.  Pemm*.  ^«  St  P.  Co^  99. 

4.  Assignments  of  error  —  Admission  of  evidence  —  Inade* 
quote  objection. 

Where  evidence  is  objected  to  on  inadequate  grounds  and  ad- 
mitted, the  Supreme  Court  cannot  reverse  on  adequate  grounds 
urged  on  appeal  but  not  suggested  below.  Browa  t.  Kitt«a« 
alas  GUjr  Produots  Go^  267. 

5.  Assignments  of  error  to  exceptions  to  adjudication — FaiU 
ure  io  quote  decree. 

Assignments  of  error  to  exceptions  to  adjudicate  in  the  Or- 
I>hans'  Court  are  not  in  proper  form  which  quote  the  excep- 
tiotis  but  not  the  ruling  of  the  court  thereon.  HoUlaser's  Es- 
tate, 75. 

6.  Equity — Final  decree — Quashing  appeal. 

Where  on  bill  in  equity  no  final  decree  is  entered  after  over- 
ruling  exceptions,  a  motion  to  quash  the  appeal  will  prevail, 
but  in  the  absence  of  such  motion  the  case  will  be  decided  on 
the  merits.    Groyle  t.  Johnstowa  Water  Co.,  484. 

7.  Question  not  raised  below — Mortgages — Foreclosure — As* 
signment,    Aaderaoa  t*  Kera,  81. 

8.  Statement  of  questions  involved. 

The  only  questions  that  will  be  considered  on  appeal  are  those 
presented  by  the  statement  of  the  questions  involved.  Pitt»- 
liarirliL  Byi*  Co*  t*  Caniok  Boro^  333. 

9.  Workmen's  compensation  law  —  Award  by  Workmen's 
Compensation  Board — Order  remanding  case  to  board — Er- 
roneous  order — Interlocutory  order,  Bakie  t*  Jeffersoa  4^ 
Clearfleld  C.  *  I.  Co^  584. 

PRESUMPTIONS. 

1.  Negligence — Railroad  crossings—" Stop,  look  and  listen" 
— Contributory  negligence — Burden  of  proof — Nonsuit  — -  Evi- 
dence— Leading  question,    Woltoeh  ▼•  Peaaa.  B.  B*  Co.,  372. 

2.  Opening  judgments — Discretion  of  court — Rule  to  strike 
off  judgment — Laches  —  Res  adjudicaia  —  Judgment  notes — 
Alleged  alteration — Addition  of  seal — Evidence — Burden  of 
proof.    Bowaiaa  t.  Berkey,  327. 


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696  INDEX. 

PRESUMPTIONS-<on<uii*«<f, 

S.  Presumption  against  change^-^Prohate  of  mUr^urisdic- 
tion,  0.  C, — Decedents'  estates— Domicile  of  decedent — Change 
of  domicile — Evidence.    Barelmy**  Estate,  401. 

4.  Presumption  of  care — Conirilmtory  nsgligonce—Conflici- 
ing  facts — Case  for  jury — Negligence — Master  and  servant — 
Electric  company — Wires — Defective  transformers — Notice — 
Death  of  lineman.    FmOM  t.  DimmMme  lAght  Oo^  389. 

5.  Presumption  of  care -^  Rebuttal  of  presumption  —  Bail' 
roads — Contributory  negligence — Absence  of  lights  on  engine 
— Engine  visible — Directed  verdict  for  defendant — Negligence 
— Grade  crossing — Pedestrian — Deafness — Degree  of  care  — 
Death.    Xrmm  t.  PittsVmrsk,  0.,  C.  *  St.  I..  By.  Co.*  443. 

6.  Presumption  of  payment — Evidence — Judgments.  Camp 
^.  Jobs,  38. 

7.  Set'Off—Joint  debt — Affidavit  of  defense  —  Insufficient 
averments — Corporation  defendant — Affidavit  by  person  not 
officer^^Insufficiency — Act  of  May  H,  1915,  P.  L.  tSS — Prac- 
tice, C.  P. — Contract — Action  on  severed  contract.  Mtrnti  -r* 
Tri-Oo«mt]r  Hat.  Oas  Co.,  477. 

PRINCIPAL  AND  SURETY. 

1.  Assignment  of  debt — Transfer  of  collateral  security — De- 
faults—Sale of  collateral — Application  of  proceeds  to  unsecured 
debt — Value  of  stock — Evidence — Discharge  of  surety, 

A  purchase  of  a  debt  is  a  purchase  of  all  securities  for  it, 
whether  named  or  not  named  at  the  time  of  the  assignment, 
unless  expressly  agreed  at  the  time  that  they  shall  not  pass. 

A  surety  is  entitled  to  every  remedy  which  the  creditor  has 
ag^ainst  the  principal,  to  enforce  every  security  and  all  means 
of  payment,  and  to  stand  in  the  place  of  the  creditor,  not  only 
through  the  medium  of  the  security  pledged  but  even  of  securi- 
ties taken  without  his  knowledge. 

If  a  creditor  releases  the  principal  from  the  payment  of  the 
debty  he  thereby  releases  the  surety  entirely,  but  if  he  releases 
the  principal  from  a  part  only,  the  surety  is  released  only  pro 
tanto. 

While  ordinarily  the  price  obtained  for  an  article  in  the 
open  market  is  the  beat  evidence  of  its  value,  where  a  creditor 
sells  a  pledged  security  on  default  of  the  debtor  and  buys  it  at 
its  own  sale  and  improperly  applies  the  proceeds  to  a  debt  other 
than  the  one  secured,  such  appropriation  casts  sufficient  dis- 
credit upon  the  bona  fides  of  the  sale  to  warrant  a  findin^r 
that  the  real  value  of  the  security  was  greater  than  the  prioe 
obtained. 


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PRINCIPAL  AND  SURETY— conhntie^f. 

Where  collateral  pledged  as  security  for  a  note  upon  which 
there  is  a  surety  is  applied  by  the  holder  of  the  note  to  the 
payment  of  another  obligation  of  the  maker,  without  the  con- 
sent of  the  surely,  the  surety  is  relieved  from  liability  on  the 
note  pro  tanto. 

Where  in  such  case  the  value  of  the  collateral  was  sufficient 
to  discharge  the  note  and  such  collateral  was  sold  and  the  pro- 
ceeds applied  to  the  payment  of  another  obligation  of  the 
maker  of  the  note,  the  debtor  could  not  thereafter  successfully 
claim  any  part  of  the  proceeds  of  a  sheriff's  sale  of  the  real 
estate  of  the  surety,  although  his  judgment  was  prior  to  that 
of  other  creditors.    BeaTer  Trnst  Co.  ▼•  Morgan,  567. 

PROMISSORY  NOTES. 

1.  Nonsuit — Partnerships — Existence  of  partnership— Evi- 
dence— Insufficiency— ^Going  business — Assignment  to  alleged 
partners — Status  of  assignees  —  Trustees  —  Tenants  in  com- 
mon— Sharing  of  profits — Assignment  for  creditors — Account- 
ing-— Commissions,    First  Hat.  Bank  ▼.  <Htt  and  Delono,  84. 

PROVINCE  OF  COURT  AND  JURY. 

1.  Case  for  jury —  Beneficial  associations — Insurance  com- 
panies— Distinction  —  By-laws  of  society ' — Death  benefits  — 
Failure  to  include  by-laws  in  certificate — Evidence — Unodi- 
thorized  circular  by  officer — Acts  of  May  11, 1881,  P,  L.  20,  and 
April  6,  1893,  P.  L.  7.  Lafforty  t.  Supremo  Counoil  Catli. 
Mnt.  Ben.  AMn«,  452, 

2.  Case  for  jury — Contracts — Debt  and  interest — Payment  on 
account  —  Application  of  payment  to  principal,  Kann  ▼. 
Kann,  583. 

3.  Case  for  jury — Criminal  law — Statute  of  limitations — 
Misdemeanors — Flight — Return — Concealment  within  State — 
Act  of  March  SI,  1860,  P.  L.  Jk27-J^0,  Sec.  77— 'Usual  resi- 
dent"— Words  and  phrases — Tolling  of  statute — Seduction — 
Promise  to  marry — Evidence — Sufficiency — Charge,  Com.  ▼. 
Weber,  592. 

4.  Case  for  jury — Master  and  servant — Bricklayer — Fall  of 
brick  arch  on  workman — Assumption  of  risk  —  Contributory 
negligence — Conflicting  evidence — Preponderance  of  evidence 
with  defendant.    Van  t.  Riohmond,  300. 

5.  Case  for  jury — Negligence — Automobiles — Standing  trol- 
ley car — Alighting  passenger  passing  around  front  of  car — Col- 
lision with  automobile  between  opposite  bound  tracks — Speed 
— Failure  to  blow  horn — Cutting  in  front  of  styeet  car — Con- 


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698  INDEX. 

PROVINCE  OF  COURT  AND  JTJBY—canHnued, 
iributory  negligence,    0«lHck  t.  X«mt»  407. 

6.  Caee  for  jury — Negligence — Defective  sidewalk — Flag- 
stone— Boots  of  trees — Liability  of  property  owner,  Camp- 
bell T.  Vinoeiit.  419. 

7.  Case  for  jury — Negligence  —  Master  and  servant  —  As- 
sumption of  risk,    l^mmh  t.  Fenaa.  R.  R.  Om^  536. 

8.  Case  for  jury  —  Negligence  —  Master  and  servant  —  De- 
fective scaffold — FaU  of  workman — Safe  place  to  work — Em- 
ployer's duty  to  inspect  and  repair — Delegation  of  duty — Fore- 
man— Vice-principal — Obvious  danger — Assumption  of  risk — 
Contributory  negligence,  Swarts  ▼•  BerK«BdalU-Kml^t  Co^ 
421. 

9.  Case  for  jury — Negligence — Master  and  servant  —  Elec- 
tric company  —  Wires  —  Defective  transformers  —  Notice  -^ 
Death  of  lineman — Presumption  of  care-contributory  negli- 
gence— Conflicting  facts,    Fa«lk  t.  Drnqaesae  Llcht  Go.,  389. 

10.  Case  for  jury — Negligence — Master  and  servant — Mines 
and  mining  —  Inexperienced  minor  —  Striking  unexploded 
charge  with  pick — Employer's  duty  to  warn  of  danger — In- 
struction—  Delegation  —  Custom — Fellow  servant,  Jelio  ▼. 
Jaat^on  C.  A  C.  Co.,  447. 

11.  Case  for  jury — Negligence — Oil  companies — Fires — Ori- 
gin—  Engines  —  Hot  tube  method  —  Dangerous  machinery — 
Custom  of  business.    Raw  ago  ▼.  P.  A  R.  Oil  Co.,  491. 

12.  Judgment  for  defendant  n,  o,  v. — Negligence — Munici- 
palities— Accumulation  of  filth  on  street  and  sidewalk — Wom- 
an sweeping  off  sidewalk — Ptuhing  of  wire  in  mud  with  broom 
—Splashing  of  mud — Injury  to  eye — Proximate  cause,  Br«s- 
soiaaa  ▼•  York,  94. 

13.  Railroads — Orade  crossing — Negligence  —  Pedestrian  — 
Deafness — Degree  of  care — Death — Presumption  of  care — Re- 
buttal of  presumption — Contributory  negligence — Evidence — 
Rebuttal — Absence  of  light  on  engine — Engine  visible — Harm- 
less error — Directed  verdict  for  defendant,  Xromm  ▼.  Pitta- 
barch,  C,  C.  *  St.  I..  By.  Co.,  443. 

PROXIMATE  CAUSE. 

1.  Minors  under  sixteen  —  Employment  —  Factory  Act  of 
April  29,  1909,  P,  L,  288— Violation— Duplicate  lists— Pjosting 
of  lists — Burden  of  proof — Exception  —  Negligence  —  Master 
and  servant — Safe  place  to  work,  Ckabot  t.  Pittobmrsk 
PUto  OlaM  Con  504. 

2.  Negligence  —  Municipalities  —  Accumulation  of  filth  on 
street  and  sidewalk — Woman  sweeping  off  sidewalk — Pushing 


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PROXIMATE  CAUSE— continued, 

of  wire  in  mtut  with  broom — Splashing  of  mud — Injury  to  eye 
— Court  and  jury — Judgment  for  defendant  n.  o.  v,  Brass«* 
man  t.  York,  94. 

3.  Negligence — Oil  companies — Fires — Origin  —  Engines — 
Hot  tube  method — Dangerous  machinery — Custom  of  business 
— Case  for  jury,    Baaias«  ▼.  P.  *  R.  Oil  Oo„  491. 

PUBLIC  OFFICERS. 

1.  Councilmen-^Disclosure  of  interest — Act  of  June  21, 
IdlS,  P.  L.  668— Cities.    Com.  ▼.  Striokler.  60. 

2.  County  auditors — Audit — Failure  to  appeal — Sureties — 
Liability  for  defalcation  of  principal — Judgment  for  defend- 
ant—  Municipalities  —  Official  bonds  —  Default.  Imyder  t. 
Barker,  489. 

3.  Justices  of  the  peace — County  officers — Jurisdiction,  C.  P. 
— Quo  warranto — District  attorney. 

Although  a  justice  of  the  peace  receives  a  commission  from 
the  governor,  he  is  not  a  State,  hut  a  county  officer;  and  his 
right  to  hold  office  may,  therefore,  be  questioned  in  quo  war- 
ranto proceedings  by  the  district  attorney  of  the  county  in 
which  he  claims  the  right  to  hold  office.  Com.  ▼•  OAmeron, 
209. 

4.  Justices  of  the  peace — Jurisdiction — Place  of  residence — 
Act  of  February  22, 1802,  S  Smith's  Laws  U90. 

Under  the  Act  of  February  22,  1802,  3  Smith's  Laws  490, 
providing  that  no  justice  of  the  peace  shall  act  as  such,  unless 
he  shall  reside  within  the  limits  of  the  district  for  which  he 
Was  commissioned,  a  justice  of  the  peace  residing  in  that  part 
of  a  township,  which,  after  the  justice  was  commissioned  for 
the  entire  township,  was  annexed  to  a  borough,  ceases  to  have 
any  legal  right  to  exercise  the  office  of  justice  of  the  peace. 
Com.  ▼•  Caaieroi^  209. 

6.  Public  Service  Commission — Act  of  July  26,  19 IS,  P.  L. 
ISH — Street  railways — Rates — Change  of  rates — Posting  and 
publication.  'Pitkmbmxm^  ▼.  Fittslmrirk  By««  Cc  Jaooby  t. 
PIttsVmrsk  Byn.  Co.,  558. 

6.  Public  Service  Commission — Complaint — Street  railways 
— Change  of  rates — Reasonableness — Boroughs — Contracts — 
Bin  in  equity^—Dismissdl — Findings  of  commission — Appeal — 
Practice  and  Jurisdiction,  C.  P.— Act  of  July  26,  191S,  P.  L. 
ISH.    St.  Clair  Boro.  t.  T.  *  P.  Elee.  By.  Co.,  462. 

Y.  Supervisors — Contracts  —  Municipal  contracts  —  Town* 
ships  of  second  class — Water  supply — Estoppel — Act  of  May 


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700  INDEX. 

PUBLIC  OFFICERS— cowWnueti. 

25,  1901,  F.  L.  231.    TreTortom  Watt^r  Snpply  Co.  t.  Zerbo 
Twp.,  31. 

8.  Warhrr^n'a  Compensation  Board  —  Appeal  to  Common 
Pleas  Court — Order  remanding  case  to  hoard — Erroneous  order 
— Practice,  C.  P, -^Practice,  Supreme  Court.  Bakle  t.  Jeffer- 
•om  *  Clearfield  C.  *  I.  Co.,  534. 

PUBLIC  SERVICE  COMMISSION,  see  Public  Officers. 

QUO  WARRANTO. 

1.  Cities — Councilmen — Disclosure  of  interest — Act  of  June 
27, 1913,  P.  L.  668.    Com.  ▼.  Striokler,  60. 

2.  Justices  of  the  peace — County  officers — Jurisdiction,  C.  P. 
— District  attorney.    Com*  ▼•  Cameroi^  209. 

RAILROADS. 

1.  Grade  crossing — Absence  of  lights  on  engine — Engine  vis- 
tble — Negligence — Pedestrian — Deafness  —  Degree  of  care  — 
Death — Presumption  of  care — Rebuttal  of  presumption — Con* 
tributory  negligence — Evidence — Rebuttal — Harmless  error  — 
Directed  verdict  for  defendant.  Krenn  ▼•  Fitt«b«rcli,  C,  C. 
*  St.  L.  By.  Co.,  443. 

2.  Laying  of  street  railway  tracks — Bill  in  equity — Injunc- 
tion — Deeds — Building  restrictions — Building  line — Covenants 
— Construction — Intention — Restricted  space — Lowering  grade 
— Erection  of  poles.    Dewar  ▼.  Caraoa,  599. 

3.  Locomotive  whistle — Deafening  of  fireman  on  locomotive 
on  next  track — Negligence  —  Interstate  commerce  — Federal 
Employer's  Liability  Act  —  Fellow-servant  rule  —  Failure  to 
warn  of  blowing  of  whistle — Common  knowledge — Evidence — 
Custom  to  warn — Admissibility.  Royer  ▼.  Peaaa.  R.  R.  Co., 
438. 

4.  Negligence  —  Automobiles  —  Contributory  negligence  — 
Quest — Testing  danger.    Voeoa  ▼.  Peniuu  R.  R.  Co.,  42. 

5.  Negligence — Ejectment  of  passenger  at  dangerous  place — 
Damages — Compensatory  and  exemplary  damages — Pleadings 
— Statement  of  claim — Amendment — Departure  —  Measure  of 
damages — Present  worth  —  Instructions  —  Failure  to .  request 
more  specific  instructions — Evidence — Res  gestce — Conversa- 
tion— Rulings  by  trial  judge — Questions  considered  on  appeal. 
Leonard  t.  B.  4^  O.  R.  R.  Co.,  51. 

6.  Railroad  company — Assumption  of  risk-^Pase  for  jury — 
Negligence — Master  and  servant.  Lamli  t.  Peama.  R.  R.  Co»» 
636. 


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INDEX.  701 

BAILBOADS — continued. 

7,  Railroad  crossings — Negligence — ^^Stop,  looh  and  listen'* 
— Presumption — Contributory  negligence — Burden  of  proof — 
Nonsuit — Evidence — Leading  question.  Waltosli  ▼.  Pemuu 
B.  B.  Co^  372. 

8.  Relief  fund — Death  benefits — Suit  at  law  —  Recovery  — 
Satisfaction — Subsequent  claim  against  relief  fund — Affidavits 
of  defense — Sufficiency — Act  of  Congress  of  April  22, 1908. 

A  regulation  of  a  relief  association  of  a  railroad  company 
providing  that  the  recovery  of  a  judgment  in  a  suit  for  dam- 
ages on  account  of  injury  or  death  of  a  member  shall  preclude 
any  claim  upon  the  relief  fund  for  benefits  on  account  of  such 
injury  or  death,  is  valid;  and  where  a  widow  has  recovered  a 
judgment  against  the  railroad  company  for  the  death  of  her 
husband  she  cannot  thereafter  assert  a  claim  against  the  rail- 
road relief  fund,  and  an  affidavit  of  defense  setting  up  such 
regulation  as  a  bar  to  such  action  is  sufficient. 

In  such  case  the  Act  of  Congress  of  April  22, 1908,  35  Stat- 
utes-at-large  65,  c.  149,  No.  5,  providing  that  any  "contract, 
rule,  regulation  or  device  whatsoever,  the  purpose  or  intent 
of  which  shall  be  to  enable  any  common  carrier  to  exempt  itself 
from  any  liability  created  by  this  act,  shall,  to  that  extent,  be 
void,"  is  not  applicable,  such  act  not  intending  that  there 
should  be  both  a  payment  of  benefits  and  a  recovery  of  damages 
for  the  injury,  at  least  in  so  far  as  payments  for  both  are  to 
be  made  by  the  same  defendant. 

In  such  case,  had  plaintiff  received  payment  of  the  benefit 
certificate  prior  to  bringing  suit  for  damages,  the  stipulation 
in  the  contract  of  membership  in  the  relief  fund  could  not 
have  been  permitted  to  defeat  the  right  to  recover  damages, 
but  defendant  would  have  been  entitled  to  set  off  the  sum  it 
had  so  paid  the  plaintiff.    Oetkin  ▼•  Peniuu  R.  R.  Co.,  150. 

9,  Street  railways — Boroughs — Townships — Grant  of  right 
to  operate  road — Resolution — Minutes  of  meeting — Right  to 
construct  sidings  and  switches — "Switches" — Subsequent  incor- 
poration of  borough — Construction  of  tracks  into  new  car  barn 
— Interference  by  borough — Laches — Acquiescence  —  Ratifica- 
tion— Bill  in  equity — Injunction.  Fittsbursli  Ry«.  Co.  v. 
Carriok  Boro.,  333. 

10.  Street  railways — Change  of  rates — Reasonableness — Bor- 
oughs—Contracts—  BUI  in  equity  —  Dismissal  —  Findings  of 
Public  Service  Commission — Appeal — Practice,  C.  P. — Act  of 
July  26, 191S,  P.  L.  ISJJ^—Jurisdiction,  C.  P.—Public  Service 
Commission — Complaint.  St.  Clair  Boro.  ▼•  T.  4k  P*  Eleo. 
By.  Co.,  462. 


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702  INDEX. 

RAILROADS— con«nu6d 

11.  Street  railways — Bates — Change  of  rates — Posting  and 
publication — Public  Service  Commission — Act  of  July  B6, 
191S,  P.  L.  1374. 

The  posting  and  publishing  of  a  schedule  changing  the  rates 
of  a  railway  company  are  a  condition  precedent  to  the  taking 
effect  of  the  changed  rate,  and  where  the  schedule  of  change 
is  not  properly  posted  the  Public  Service  Commission  may  re- 
strain a  railway  from  putting  the  rate  into  effect. 

An  order  of  the  Public  Service  Commission,  requiring  a 
stieet  railway  company  to  desist  from  collecting  an  increased 
rate  of  fare,  which  the  company  undertook  to  establish  by  a 
schedule  filed  with  the  Public  Service  Commission,  was  prop- 
erly affirmed  by  the  Superior  Court,  where  it  appeared  that 
copies  of  the  new  schedule  were  sent  to  the  agents  of  the  rail- 
way company  at  its  offices  and  stations  where  the  business  of 
the  company  was  transacted,  with  directions  to  keep  a  copy 
of  the  same  on  file  with  the  copy  of  the  schedule  of  fares  for 
street  car  service  on  file  at  such  stations,  but  where  no  copy  of 
the  schedule  was  posted  in  the  rooms  to  which  the  public  had 
access,  as  required  by  Section  1  of  Article  II  of  the  Publie 
Service  Company  Law.  FittabnrsliL  ▼•  PittaVmrgk  Bya*  C^ 
Jaooby  ▼•  Pittalbargk  Bys.  Co.,  568. 

REAL  ESTATE. 

1.  Appropriation  of  land — Parks  —  Eminent  domain — jBor- 
oughs—Act  of  May  U,  1916,  P.  L.  S12'41IS— Indebtedness  in 
excess  of  statutory  limit — Failure  to  submit  to  vote  of  people 
— Failure  to  pay — Mandamus — Courts  —  Power  over  process. 
Viokroy  t.  Femdale  Boro.,  321. 

2.  Contract  for  sale  of  real  estate — Specific  performance — 
Laches — Failure  to  make  tender — Refusal — Equity.  Xvts's 
EstAte,  548. 

8.  Deeds  —  Building  restrictions  —  "Single  dwelling  house*' 
on  each  lot — Erection  of  duplex  building  or  apartment  house — 
BiU  in  equity — Dismissal. 

Covenants  restraining  a  man  in  the  free  enjoyment  of  his 
property  are  not  to  be  extended  by  implication. 

The  building  of  a  duplex  building  or  apartment  house  is  not 
a  violation  of  a  restriction  limiting  the  owner  to  one  dwell- 
ing house  upon  a  lot,  the  test  being  whether  the  building  is  a 
single  structure  intended  for  dwelling  purposes  and  not  wheth- 
er it  was  intended  to  house  more  than  one  family. 

Where  the  conveyance  of  a  lot  of  ground  from  defendant 
to  plaintiff  contained  a  buildings  restriction  that  but  "a  singly 


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INDEX.  703 

REAL  ESTATE-^oniinued. 

dwelling  house''  should  be  erected  on  the  lot,  and  also  a 
covenant  that  like  restrictions  should  be  imposed  in  any  other 
conveyance  of  property  made  hy  the  defendant  in  the  district 
mentioned,  and  thereafter  conveyances  of  other  lots  were 
made  by  defendant  with  the  provision  that  the  restriction 
should  not  be  construed  to  prohibit  the  erection  of  a  duplex 
dwelling  or  apartment  house,  plaintiff's  bill  in  equity  for  the  exi- 
forcement  of  the  building  restrictions,  on  the  ground  that  a 
duplex  dwelling  or  apartment  house  was  not  "a  single  dwelling 
house"  within  the  meaning  oi  the  covenant  of  his  deed,  was 
properly  dismissed.  Rohrer  ▼•  Trafford  Beal  Estate  Co^ 
297. 

4.  Deeds — Recording  of — Priority — Acts  of  March  18, 1775, 
1  Smith's  Laws  UB,  Sec.  1;  May  19,  1893,  P.  L.  108'-^on- 
struction. 

The  Act  of  May  19,  1898,  P.  L.  108,  amending  the  Act  of 
March  18, 1775, 1  Smith's  Laws  422,  carefully  and  deliberately 
changed  the  law  relating  to  the  recording  of  deeds  and  con- 
veyances, and  now  all  deeds  and  conveyances  made  and  exe- 
cuted within  this  Commonwealth  are  required  to  be  recorded 
within  ninety  days  after  execution,  and  every  deed  or  convey- 
ance not  recorded  within  that  time  is  fraudulently  and  void  as 
to  subsequent  purchasers  or  mortgagees. 

The  owners  of  certain  real  estate  delivered  an  agreement  for 
the  sale  thereof  on  December  11, 1916.  The  agreement  was  re- 
corded on  March  26,  1917,  one  hundred  and  five  days  after  its 
delivery.  On  February  26,  1917,  the  owner  of  the  said  land 
delivered  a  deed  therefor  to  another  party,  for  a  valuable  con- 
sideration, in  pursuance  of  an  agreement  made  by  them  on 
January  15,  1917.  Said  deed  was  recorded  on  April  28,  1917, 
56  days  after  the  date  of  its  delivery.  On  a  case  stated,  brought 
by  the  grantee  in  said  deed  to  determine  the  validity  thereof, 
the  lower  court  held  that  the  failure  of  the  first  purchaser  to 
place  his  agreement  on  record  within  ninety  days  after  its 
execution,  as  required  by  the  Act  of  1898,  rendered  his  title 
void  as  against  the  plaintiff,  and  entered  judgment  for  the 
plaintiff.    Held,  no  error. 

Davey  v.  Buff  ell,  162  Pa.  443,  criticised  as  to  dicta  in  the 
opinion.    Saiitli  ▼•  Toung,  367. 

5.  Estates  tail— Act  of  April  27, 1866,  P.  L,  868— Construe- 
tion — Intention— Wills  and  devises.    Cross  t.  Dye,  207. 

6.  Injury  to  real  estate  within  county — Foreign  defendant — 
Leave  to  serve  outside  of  county — Acts  of  June  IS,  1886,  P.  L. 
568;  March  17,  1856,  P.  L,  388;  April  6,  1869,  P.  i,  389; 


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704  INDEX 

EEAL  ESTATE— con^inuerf. 

April  3,  190$,  P.  L,  139,  and  June  5, 1915,  P.  L.  8Vl—Sq%Aty 
BtUe  10 — Construction  of  dam — Overflowing  of  waters — Dam 
partly  in  another  county — Bill  hy  riparian  owner — Belief  af- 
fecting entire  dam — Belief  in  personam,  Vamdmreloot  ▼• 
Pemna.  W.  *  P.  Co.,  99. 

7.  Merger — Dower  interest — Assignment  of  dower  interest 
to  owner  in  fee — Mortgages — Assumpsit  for  dower. 

When  ever  a  greater  estate  and  a  leas  meet  in  the  same  per- 
son, the  less  is  merged  or  drowned  on  the  greater^ 

Merger  is  a  question  of  intent  and  will  not  take  place  against 
the  wishes  of  the  party  to  he  affected  hy  it,  and  where  it  is 
against  the  interest  of  the  person  holding  the  respective  titles, 
the  law  will  not  presume  an  intent  to  merge. 

Where  the  owner  of  a  land,  subject  to  dower  and  also  to  a 
mortgage  to  secure  the  payment  of  the  dower  interest^  subse- 
quently acquired  the  dower  interest,  and  thereafter  conv^ed 
the  premises  subject  to  the  mortgage  as  part  of  the  consider- 
ation money,  a  merger  of  the  dower  and  the  fee  took  place, 
and  the  personal  representative  of  such  grantor  could  not  main- 
tain an  action  of  assumpsit  for  the  dower  against  the  grantee 
of  the  land,  although  the  amount  due  was  not  in  dispute;  in 
such  case  the  plaintiff's  remedy  was  upon  the  mortgage.  Orif- 
nth  ▼•  MoKeever,  605. 

8.  Minerals — Owner  of  land  only — Partition, 

One  who  has  parted  with  all  his  right*  title  and  interest  in  a 
vein  of  coal  underlying  land  in  which  he  still  has  an  interest 
has  no  standing  to  maintain  a  partition  proceeding  instituted 
for  the  partition  of  the  entire  tract  including  the  coal. 
Towas'a  Estate,  206. 

9.  Bule  to  bring  ejectment — Party  in  possession — Evidence 
— Jurisdictional  facts — Title — Will — Possession — Payment  of 
rent^—Act  of  June  10,  1893,  P.  L.  416—Beal  property.  BeUs 
Petitiom  495. 

10.  Wills— Bule  in  SheUey's  Case-'Act  of  April  ^.  1836,  P. 
L.  368— Trusts— Dry  trusts.    Mylln  ▼.  Hmnt,  77, 

RECEIPTS. 

1.  Legal  effect  of — Explanation  —  Admission  in  pleadings. 
Ptttaburffli  Block  Coal  Co.  ▼•  OUtot  Coal  Co.,  290. 

RECEIVERS. 

1.  Corporations — Appointment-^Hostile  interest — Bemoval. 

The  receiver  of  a  railroad  company  was  properly  removed  on 

petition  of  creditors  of  the  company  where  it  appeared  that  he 


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INDEX.  705 

HECETVEHS— continued. 

was  interested  in  another  railroad  with  which  the  former  com- 
pany was  engaged  in  litigation.  Com*  t.  Nortk  Shore  R.  It. 
Co.>  155. 

2.  Corporations — Payments — Losses — Issue  of  unauthorized 
certificates — Surcharge — Payments  directed  hy  order  of  court 
— Subsequent  order — Priority.  Penma.  Ens*  Works  t.  New 
CMtle  Itamp.  Co^  378. 

3.  Equity  practice — Injunction — Bond — Affidavit  —  Protec- 
tion of  property-— Ads  of  March  21,  1806,  4  Sm.  L.  326;  May 
6, 18U,  P.  L.  664,  Sec.  1,  and  June  16, 18S6,  P.  L.  784—Equity 
Rules  81  and  82.    Banr  ▼.  Wilkes-Barre  lAght  Co.,  115. 

RES  ADJUDICATA. 

1.  County  auditors — Finality  of  report — Failure  to  appeal — 
Sureties — Liability  for  defalcation  of  principal.  Snyder  t. 
Berkey,  489. 

2.  Estoppel — Church  law — Church  property — Dedication  to 
certain  purposes — Diversion — Equity — Injunction — Judgmen t 
in  prior  suit.    Kioinko  ▼.  Petnuik«»  1. 

3.  Judgments — Judgment  notes  —  Alleged  alteration  —  Ad- 
dition of  seal — Evidence  —  Burden  of  proof  —  Presumption — 
Opening  judgments — Discretion  of  court — Rule  to  strike  off 
judgment — Laches.    Bowman  t.  Berkey,  327. 

RES  GESTAE. 

1.  Criminal  law — Murder — First  degree — Robbery — Motive 
— Ill  will — Identification  of  defendant  ^-  Voice  —  Evidence  — 
Charge — Sufficiency — Avoiding  arrest — Rebutting  inference — 
Conviction  of  accomplices — Admissibility  —  Jurors  of  same 
name — Error  in  summoning — Waiver — Act  of  March  SI,  1860, 
Sec.  63,  P.  L.  427.    Com.  v.  Dennery,  223. 

2.  Negligence — Railroads — Evidence — Conversation  —  Rul- 
ings by  trial  judge — Questions  considered  on  appeal.  I«eonard 
T.  B.  A  O.  B.  Rr  Co.,  51. 

laPARIAN  RIGHTS. 

1.  Bill  by  riparian  owner — Relief  affecting  entire  dam — 
Relief  in  personam — Equity  jurisdiction — Injury  to  real  estate 
within  county — Foreign  defendant — Leave  to  serve  outside  of 
county-^-Acts  of  June  13,  1836,  P.  L.  568;  March  17,  1856,  P. 
L.  388:  April  6,  1869,  P.  L.  389;  April  3, 1903  P..L.  ISO,  and 
Juiie  5,  1015,  P.  L.  847— Equity  Rule  10-^Construction  of  dam 
. — Overflowing  of  waters  —  Dam  partlff  in  another  county,' 
Vandersloot  ▼.  Penna.  W.  A  P.  Co.,  99. 

Vol.  cclix — 45 


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706  INDEX. 

ROBBERY,  see  Criminal  Law. 

RULES  AGAINST  PERPETUITIES. 

1.  WilU — Construction — Accumulations — Act  of  April  18, 
1853,  P,  L,  dOS—Intention.    MeXeowm**  IBmtmtm,  216. 

RULE  IN  SHELLEY^S  CASE. 

1.  Wilh-^Real  estate—Act  of  ApHl  27,  1856,  P.  L.  868— 
Trusts— Dry  trusts.    Mylln  t.  H«rst,  77. 

SALES. 

1.  Contracts  in  tpriHng — Purchase-price — Agreement  as  to 
purchase-price — Insufficiencu — Plaintiff's  statement — Quantum 
meruit,     Aland  t.  Clvett,  Peabody  A  Oo^  364. 

2.  Siile  of  corporate  HMsets — Purchase  by  sole  stockholder 
and  president — Alleged  fraud—Bill  in  equity.  McM^IHb  ▼• 
WMtlachovse  Estate,  281. 

SEDUCTION,  see  Criminal  Law. 

SET-OFF. 

1.  Action  on  several  contract — Joint  debt  not  to  he  set  off — 
Affidavit  of  defense — Insufficient  averments — Corporation  de- 
fendant— Affidavit  by  person  not  officer — Act  of  May  H,  1915, 
P.  L.  483— Practice,  C.  P.  Mints  t.  TH-Oommty  Nat.  Oas 
Co.,  477. 

2.  Suit  against  defendant  individually — Set-off  of  claim  due 
defendant  in  representative  capacity — Refusal, 

A  cardinal  rule  in  the  interpretation  of  statutes  of  set-off, 
requires  that  there  be  mutuality  of  demand;  both  as  regards  the 
quality  of  the  right  and  identity  of  the  party ;  by  mutuality  in 
quality  of  right  is  to  be  understood  mutuality  of  right  with  re- 
spect to  the  legal  remedy  provided  for  the  enforcement  of  the 
several  demands. 

In  an  action  by  the  receiver  of  a  bank  brought  against  the 
maker  of  promissory  notes  held  by  the  bank,  the  defendant  can- 
not set-off  against  the  plaintiff's  demand,  bank  deposits  made 
by  him  in  a  fiduciary  capacity,  prior  to  the  insolvency  of  the 
bank,  since  to  permit  such  a  set-off  would  allow  the  defendant 
to  pay  his  own  debts  with  money  belonging  to  others.  Hmmtar 
▼•  He&niac*  347. 

SIDEWALKS. 

1.  Defective  MewoXh^Flagsiom-Soots  of  frees— LiabiUiiy 
of  property  owner — Case  for  jury-^Negligenee.  OampMll  ▼. 
yimooat,  419. 


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INDEX.  707 

SPECIFIC  PERFORMANCE. 

1.  Equitv — Contract  for  tale  of  real  e$iale — Laches — Failure 
to  make  tender — Refusal.    Xnts'a  B«t«t*,  648. 

STATEMENT  OF  CLAIM,  see  Practice,  C.  P. 

STATUTE  OF  LIMITATIONS. 

1.  Bar  of  claim — Tolling  of  statute — Subsequent  promise  to 
pay — Evidence — Insufficiency — Indebtedness  on  several  obliga- 
tions— Payment — Application  to  barred  claim  without  debtor's 
consent. 

To  remove  the  bar  of  the  statute  of  limitations,  the  promise 
to  pay  must  refer  distinctly  and  specifically  to  the  original 
debt. 

Where  a  person  is  indebted  to  another  on  several  distinct  i 
obligations,  one  of  which  is  barred  by  the  statute  of  limita-  ] 
tions,  and  thereafter  the  debtor  makes  a  payment,  the  applica- 
tion of  the  whole  or  a  part  of  such  payment  to  the  barred  claim, 
without  the  knowledge  or  consent  of  the  debtor,  cannot  operate 
to  toll  the  statute  as  to  such  claim. 

A  daini  against  a  decedent's  estate  was  properly  disallowed 
where  it  was  based  on  an  oral  promise  by  decedent  in  1904, 
since  which  time  a  greater  period  than  the  statutory  limita- 
tion of  six  years  had  elapsed  without  decedent  having  renewed 
his  promise  to  pay,  or  having  paid  any  interest  thereon,  and, 
although  it  was  contended  that  decedent  had  made  a  payment 
on  account  after  the  claim  had  been  barred,  it  appeared  that 
decedent  was  indebted  to  claimant  on  several  other  obligations, 
not  barred  by  the  statute,  and  made  a  payment  to  claimant, 
part  of  which  claimant  applied  to  the  barred  claim  without  the 
knowledge  or  consent  of  deceased.  Momtsomerj**  EctAte* 
412. 

2.  Criminal  laiv — Misdemeanors — Flight — Return — Conceal- 
ment within  state— Act  of  March  81,  1860,  P.  L.  427-450,  Sec, 
77 — "Usual  resident" — Words  and  phrases — Tolling  of  statute 
— Seduction  —  Promise  to  marry  —  Evidence  —  Sufficiency  — 
Charge — Case  for  jury.    Com.  t.  Weber,  592. 

STATUTES. 

1.  Acteptance  of  Act  of  April  29, 1874,  P.  L,  7S^Ultra  vires 
acts — Right  of  private  parties — Remedy  by  Commonwealth — 
Act  of  June  19,  1871,  P.  L.  ISeO^BUl  in  equity-'Injunction 
— DismissaTr-^Water  companies — Eminent  domain-^Territorial . 
rights — Special  charter — Power  to  furnish  within  city  limits — 


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708  INDEX. 

STATUTES— conhnwed 

Incidental  furnishing  to  suburban  districts — Effect  of  Consti- 
tution of  1673,     Croyle  t.  Johnstown  Water  Oo^  484. 

2.  Adoption — Failure  of  father  to  support  child — Act  of  May 
28,  1915,  P.  L,  dSO — Decree — Consent  of  mother — Insanity  of 
father — Death  of  father — Subsequent  proceedings  by  mother  to 
set  decree  aside — Status  of  committee — Appeal  —  Certiorari, 
Holoa  Franoos  Touns's  Adoptioi^  573. 

3.  Amendatory  acts — Construction — Intention. 

A  statute,  amendatory  of  another,  declaring  that  the  former 
shall  read  in  a  particular  way,  must,  in  general,  be  held  to  re- 
peal all  provisions  not  retained  in  the  altered  form.  All  mat- 
ters not  incorporated  into  the  amendment,  the  latter  must  be 
held  to  have  repealed.    Smltli  ▼•  Touas,  367. 

4.  Beneficial  associations — Insurance  companies  —  DisHnc- 
tion — By-laws  of  society — Failure  to  include  by-laws  in  cer- 
tificate'-Acts  of  May  11,  1881,  P.  L.  20,  and  April  6, 1893,  P. 
L,  7.  Lafforty  t.  Supreme  Council  Catlu  Mut.  Ben.  Aeen., 
462. 

6.  Boroughs — Eminent  domain — Parks — Appropriation  of 
land^Act  of  May  U,  1915,  P.  L.  312-^12— Indebtedness  in  ex- 
cess of  statutory  limit — Failure  to  submit  to  voie  of  people — 
Failure  to  pay — Mandamus  —  Courts — Powers  over  process, 
Viekroy  t*  Femdale  Boro^  321. 

6.  Cities — Councilmen — Disclosure  of  interest — Act  of  June 
27, 1913,  P,  L,  568,    Com.  t.  Strtekler,  60. 

7.  Constitutional  law — Const,  of  Penna,,  Art.  Ill,  Sees,  7 
and  11,  Art,  IX,  Sec,  7  and  Art,  I,  Sec,  1 — Declaration  of 
rights — Local  and  special  laws — Gratuities — Contractors — En- 
croachment  on  judicial  prerogatives — Counties  —  Contracts  — 

'  Work  done  under  constitutional  act — Curative  act — ConsHtu- 
tionality—Act  of  May  11,  1909,  P.  L,  506,  and  April  20, 1917, 
P,  L.  91.     Kennedy  ▼.  Meyer,  306. 

8.  Constitutional  law — Const,  of  U,  S,,  Art,,  I,  Sec.  10,  Art. 
Ill,  Sees.  16  and  21 — Property  rights — Payment  of  money  by 
State  without  appropriation — Limitation  of  action  against  cor- 
poration— Banks  and  banking — Deposits — Failure  to  demand 
money  within  thirty  years — Payment  to  State  —  Depositor's 
right  against  State — Contract  subject  to  statute — Acts  of  April 
17, 1872,  P.  L,  62,  and  May  11,  1909,  P,  L,  62'-Vdlidity'- Affi- 
davits of  defense— ^Insufficient  averments.  Com.  t.  Dollar 
SaTincs  Bank,  138. 

9.  Criminal  law — Murder^First  degree — Robbery^MoHve 
-^III  will^Identification  of  defendant —  Voice  —  Evidence  — 
Res  gesiw — Charge — Sufficiency — Avoiding  arrest — Rebutting 


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INDEX.  709 

STATUTES— con^inttcff. 

inference — Gonviciion  of  accomplices — Admissibility  —  Jurors 
of  same  name — Error  in  summoning — Waiver — Act  of  March 
SI,  1860,  Sec.  53,  P.  L.  427     Com.  t.  Deanery,  223. 

10.  Decedents'  estates — Election  to  take  against  will — Act  of 
April' 1,  1909,  P.  L,  87 — Appraisement — Exemption  in  cash, 
HoUinser's  Estate,  72. 

11.  Ejectment — Rule  to  bring — Party  in  possession  —  Evi- 
dence— Title — Possession — Payment  of  rent — Act  of  June  10, 
1893,  P,  L.  415,     BeU's  Petition,  495. 

12.  Elections — Nominations — Candidates  —  Official  ballot — 
Party  nominees--Act  of  April  29,  1903,  P,  L.  338.  Town 
Meeting  Party  NonUnatlon  Papers,  231. 

13.  Equity  jurisdiction — Injury  to  real  estate  within  county 
— Foreign  defendant — Leave  to  serve  outside  of  county — Acts 
of  June  13,  1836,  P.  L.  568;  March  17, 1856,  P.  L.  388;  April 
6, 1859,  P.  L.  389;  April  3,  1903,  P.  L.  139,  and  June  5, 1915, 
P.  L.  8If7 — Equity  Rule  10 — Construction  of  dam — Overflow- 
ing of  waters — Dam  partly  in  another  county — Bill  by  riparian 
owner  —  Relief  affecting  entire  dam — Relief  in  personam, 
Vanderaloot  t.  Penna.  W.  A  P.  Co.,  99. 

14.  Equity  practice — Injunction — Bond — Affidavit — Receiv- 
ers— Protection  of  property — Acts  of  March  fSl,  1806,  4  8m.  L, 
326;  May  6,  1844,  P-  L,  564,  Sec,  1,  and  June  16,  1836,  P.  L. 
784— Equity  Rules  81  and  82.  Banr  t.  Wilkee-Barre  Lifflit 
Co.,  115. 

15.  Factory  Act  of  April  29,  1909,  P.  L.  283-'Violation— 
Minors  under  sixteen — Duplicate  lists — Posting  lists.  Cl&abot 
▼.  Plttsbnreli  Plate  Glass  Co.,  504. 

16.  Judicial  districts — Designation — Act  of  April  24,  1917, 
P.  L,  95 — Constitutionality,     Hoeoker  t.  Woods,  160. 

IT.  Landlord  and  tenant  —  Leases  —  Covenant  not  to  alter 
without  lessors  consent — Lessor's  refusal — Oood  faith  —  Al- 
leged condition — Construction — Forfeiture — Act  of  32  Henry 
VIII,  Ch.  34,  Rev.  Stat.  1 — Pleadings — Judgment  on  warrant 
— Framing  issue — Evidence — Written  instruments — Parol  evi- 
dence— Fraud,  accident  and  mistake.  Williams  t.  Notopolos, 
469. 

18.  Negligence — Master  and  servant — Mines  and  mining — 
Bituminous  Coal  Mine  Act  of  June  9,  1911,  P.  L.  756 — Con- 
struction of  passageway — Mine  foreman — Negligence  of  mine 
foreman — Constructive  notice  of  defect — Contributory  negli- 
gence— Nonsuit.     Cossette  t.  Panlton  Coal  Min.  Co.,  520. 

19  Practice  Act,  1915 — Corporation  defendant — Affidavit  by 


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710    •  INDEX. 

STATUTES— con/int/c(f. 

person  not  oBicer^Acb  of  May  U,  1916,  P.  L.  JfSS. 
Tri-Covatj  Kat.  Gas  Co^  477. 

20.  Practice  Act  of  191& — Rule  to  open  confessed  judgment 
— Pleadings,    Williams  t.  KotopoUw,  469. 

21.  Practice  Act  of  May  U,  1915,  P.  L.  J^S— Statement  of 
claim  —  Insufficiency  —  Affidavit  of  defense  in  nature  of  de- 
murrer.   Robert  Grace  Coat.  Co*  t*  K.  A  W.  By.  Co.*  241. 

22.  Public  officer — Justices  of  the  peace — Jurisdiction  — 
Place  of  residence  -Act  of  February  22, 1802,  3  Smith's  Laws, 
490.     Com.  T.  CameroAt  209. 

23.  Public  Service  Commission  —  Complaint  —  Street  rail- 
ways— Change  of  grade — Reasonableness  —  Boroughs  —  Con- 
tracts— Bill  in  equity — Dismissal — Findings  of  Public  Service 
Commission — Appeal — Practice  and  jurisdiction,  C.  P. — Act  of 
July  26, 191S,  P.  L.  1S74.  St.  Clair  Boro.  t.  T.  *  P.  Sloe.  By. 
Co.,  462. 

24.  Railroads — Relief  fund — Death  benefits — Suit  at  law — 
Recovery — Satisfaction — Subsequent  claim  against  relief  fund 
— Affidavits  of  defense — Sufficiency — Act  of  Congress  of  April 
22,  1908.    Oetkim  ▼.  Peana.  B.  B.  Co.,  150. 

25.  Real  estate— Estate  tail—Act  of  April  27, 1855,  P.  L.  368 
— Construction  of  will.    Cross  t.  Dye,  207. 

26.  Recording  of  deeds — Priority—Acts  of  March  18,  1775, 
1  Sm.  L.  U2,  Sec.  1,  and  May  19, 1893,  P.  L.  108— Construction 
— Real  property.    Smitli  t.  TottAs»  367. 

27.  Rule  against  perpetuities — Accumulations — Act  of  April 
18,  1853,  P.  L.  503.    MeKeown*s  Estate,  216. 

28.  Street  railways — Rates — Change  of  rates — Posting  and 
publication  —  Public  Service  Commission  —  Act  of  July  26, 
1913,  P.  L.  1374.  Pittsburcli  t.  Pittslmrsli  Bys.  Co.,  Jaeoby 
T.  Pittsbvrcb  Bys.  Co.,  558. 

29.  Taxation — Foreign  corporations — Capital — Bonus — Act 
of  May  S,  1901,  P.  L.  150.    Com.  t.  SobwarssebUd,  130. 

30.  Tolling  of  statute — Seduction — Promise  to  marry — Evi- 
dence— Sufficiency — Charge — Case  for  jury — Criminal  law — 
Statute  of  limitations — Misdemeanors — Flight — Return — Con- 
cealment within  state— Act  of  March  31,  1860,  P.  L.  Jf27'450. 
Sec.  77— 'Usual  resident."    Com.  t.  Weber,  592. 

31.  Townships  of  second  class — Water  supply — Contracts  for 
—Acts  ultra  vires— Estoppel— Act  of  May  25,  1907,  P.  L.  231. 
TroTorton  Water  Supply  Co.  t.  Zerbe  Twp^  31. 

32.  Witts — Construction — Definite  failure  of  issue — Life  es- 
tate— Remainders — "Lawful  heirs" — Ejectment — Act  of  April 
27,  1855,  P.  L.  368.    MeClintio  t.  MoCliatie,  112. 


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INDEX.  711 

STATUTES— continued. 

88.  Wills —  Real  estate  —  Rule  in  SheUey's  Case  — Act  of 
April  27,  1855,  P.  L.  S68  —  Trusts  —  Dry  trusU.  Mylia  ▼. 
Hmnt»  77. 

84,  Witnesses — Competency — Testimony  of  surviving  party 
—Act  of  May  23,  1887,  P,  L.  158,  Sec.  5,  Clause  e.  Edaimd- 
■o&'0  Estate,  429. 

36.  WorJcvMn's  Compensation  Law — Award  by  Workmen's 
Compensation  Board — Appeal  to  Common  Pleas  Court — Order 
remanding  case  to  hoard — Erroneous  error — Act  of  June  2, 
1915,  P.  L.  758.  Bakie  t.  Jefferson  A  Olearfleld  C.  A  I.  Co., 
534. 

36.  Workmen's  Compensation  Law — Injury  in  course  of  em- 
ployment— Interval  of  leisure  while  awaiting  material — Light- 
ing cigarette — Clothes  catching  fire — Death — Award — Act  of 
June  S,  1915,  P.  L.  736.  Dsikowslui  t.  Superior  Steel  Co., 
678. 

STOCK. 

1.  Issuance  of  stock — Purchase  by  directors  present  at  meet- 
ing— Right  of  stockholders  to  participate  in  issue — Setting 
aside  of  issue — Trust — Fraud — Remedy  at  law — Equity — Ju- . 
risdiction  —  Bill  hy  stockholders  —  Injunction  —  Directors  — 
Fight  for  control.     Olean  t.  Kittaaniag  Brew.  Co.,  510. 

2.  ^alue  of  stock-^Principal  and  surety — Assignment  of  debt 
— Transfer  of  collateral  security — Default — Sale  of  collateral 
— Application  of  proceeds  to  unsecured  debt — Evidence — Dis- 
charge of  surety.    BeaTor  Trust  Co.  ▼•  Morsaa,  567. 

STREET  RAILWAYS,  see  Railroads. 

SUPERVISORS,  8ee  Public  Officers. 

SURCHARGE. 

1.  Failure  to  fUe  account — Commissions — Executors  and  ad- 
ministrators— Joint  wUl.    Springer's  Estate,  46. 

SURETIES. 

1.  Official  bonds  —  County  auditor's  report  —  Liability  of 
surety  for  defalcation  of  principal.     Snyder  t.  Berkey,  489. 

TAXATION. 

1.  Foreign  corporations — Capital — Bonus — Act  of  May  8, 
1901,  P.  L.  150. 


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712  INDEX. 

TAXATION— con<inue(i. 

The  bonus  imposed  ok  the  capital  of  a  foreign  corporation 
by  the  Act  of  May  8,  1901,  P.  L.  150,  is  upon  its  capital  or 
property  actually  employed  within  this  State  and  not  upon  the 
proportionate  value  of  the  company's  stock  here  employed. 
Com.  T.  Sohwarssoliild,  130. 

TENANTS  IN  COMMON. 

1.  Sharing  of  profits — Existence  of  partnership — Evidence — 
Insufficiency  —  Ooing  business  —  Trustees  —  Assignment  for 
creditors  —  Accounting  —  Commissions,  First  Nat.  Baak  t. 
Oitt  M&d  Delone,  84. 

TITLE. 

1.  Possession — Payment  of  rent — Act  of  June  10,  1898,  P. 
L,  416 — Real  property — Rule  to  bring  ejectment — Party  in  pos- 
session— JurisdictioTMl  facts — Evidence — Will,  Bell's  Peti- 
tion, 495. 

TOWNSHIPS. 

1.  Street  railways — Orant  of  right  to  operate  road — Resolu- 
tion—  Minutes  of  meeting  —  Right  to  construct  sidings  and 
switches — "Switches" — Subsequent  incorporation  of  borough — 
Laches — Construction  of  tracks  into  new  car  bam — Interfer- 
ence by  borough  —  Bill  in  equity  —  Injunction^  Pittafmrsli 
Bya*  Co.  t.  Carriok  Boro.,  333. 

2.  Townships  of  second  class —  Water  supply  —  Acts  ultra 
vires— Estoppel^Act  of  May  25,  1907,  P.  L.^l-^ontracts— 
Municipal  contracts,  Trerortom  Water  Smpply  Co.  t.  Zerbo 
Twp.,31. 

trusts' 

1.  Dry  trusts — WUls — Real  estate—Rule  in  Shelley's  Case 
—Act  of  April  27,  1855,  P.  L.  868,    Myli»  ▼.  Hurst,  77. 

TRUSTS  AND  TRUSTEES, 

1.  Sale  of  corporate  assets-— Purchase  by  sole  stockholder  and 
president — Alleged  fraud,  MoMhIUa  ▼•  Westinslionso  Es- 
tate, 281. 

VARIANCE. 

1.  Brewing  company — Moving  machinery — Change  in  opera- 
tion— Increased  danger  —  Failure  to  notify  employee  —  Con- 
tributory negligence — Instructions  to  jury — Failure  to  request 
— Negligence — Earning  power — Charge  of  court  —  Pleading, 
Teaser  t.  Aathraoite  Brewinic  Co.,  123. 


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VESTED  AND  CONTINGENT  REMAINDERS. 

1.  WUls — Construction — Oift  to  class — *' Surviving" — ** Sur- 
vivors"— Time  for  determination  of  class — Equality  of  distri- 
hution — Avoiding  intestacy.    Fetrow's  Estate,  89. 

WAIVERS. 

1.  Criminal  law — Murder — First  degree — Robbery — Motive 
— Ill  will — Identification  of  defendant — Voice  —  Evidence  — 
;  Res  gestcB — Charge — Sufficiency — Avoiding  arrest — Rebutting 
inference — Conviction  of  accomplices — Admissibility — Jurors 
of  same  name — Error  in  summoning — Act  of  March  31,  1860, 
Sec.  63,  P.  L,  427.     Com.  t.  Dennery,  223. 

:  WARRANTY. 

j  1.  Breach  of  warranty — Estoppel — Judgment  for  defendant 

J  n.  0,  V. — Fire  insurance — Application — Answers  to  questions — 
Misrepresentations — Flour  mill — Character  of  power  used — In- 
spection.   Oorbim  t.  Millen  Hut.  Fire  las.  Oo.,  106. 

WATER  AND  WATER  COMPANIES. 

1.  Water  Supply — Municipal  contracts — Townships  of  sec- 
ond clcLss — Acts  ultra  vires — Estoppel — Act  of  May  25, 1907,  P. 
L.  231.     TreTorton  Water  Supply  Co.  t.  Zerhe  Twp.*  31. 

t  2.  Eminent  domain — Territorial  rights — Special  charter  — 

i  Power  to  furnish  within  city  limits — Incidental  furnishing  to 
suburban  districts — Effect  of  Constitution  of  1873 — Accept- 
ance of  Act  of  April  29, 187Jf.  P.  L.  73--Ultra  vires  acts-— Right 
of  private  parties — Remedy  by  Commonwealth — Act  of  June 

t         19, 1871,  P.  L,  1360 — Bill  in  equity — Injunction — Dismissal. 
Where  the  taking  of  water  by  a  water  company  is  mainly  for 
the  purpose  of  supplying  citizens  within  the  proper  territorial 

'  limits  of  the  company,  the  furnishing  of  a  small  supply  to  per- 
sons outside  of  the  limits  is  a  mere  incident  of  the  main  pur- 
I)08e  and  the  taking  will  not  be  enjoined. 

;  A  water  company  has  the  right  to  condenm  as  much  water 

as  is  reasonably  necessary,  not  only  for  present  purposes,  but 
for  future  needs. 

A  water  company  incorporated  by  a  special  act  for  the  pur- 
pose of  supplying  water  to  five  boroughs  named  and  the  vi- 
cinity thereof,  did  not  lose  it  charter  rights,  at  the  adoption  of 
the  Constitution  of  1878,  or  by  its  acceptance  of  the  Corpora- 
tion Act  of  April  29,  1874,  P.  L.  73,  and  where  the  boroughs 
were  subsequently  consolidated  into  a  city,  the  corporation  did 
not  exceed  its  charter  rights  by  supplying  water  in  the  vicinity 
of  such  city,  where  it  did  so  merely  as  an  incident  to  the  busi- 
ness of  supplying  water  to  the  city. 


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VVATEB  AND  WATER  COMPANIE8--con«nueJ. 

Where  the  true  purpose  of  condemnation  of  water  by  a  water 
company  is  to  furnish  a  territory  boyond  the  original  charter 
limits^  such  question  can  be  inquired  into  only  by  the  Com- 
monwealth upon  an  appropriate  proceeding,  but  not  by  a  bill 
in  equity  under  the  Act  of  June  19, 1871,  P.  L.  1360,  at  the  in- 
stance of  a  private  person ;  and  a  bill  in  equity  alleging  such 
purpose  and  seeking  to  enjoin  such  taking  was  properly  dis- 
missed.    Oroyle  t.  Jokmstowm  Water  Go.,  484. 

WILLS. 

1.  Construction — Definite  failure  of  issue — Life  estate — Be- 
mainders — "Lawful  heirs" — Ejectment — Act  of  April  27, 1855, 
F.  L.  368. 

A  limitation  over  by  will  to  persons  in  being,  after  the  death 
of  the  first  taker  without  issue,  raises  a  strong  presumption 
that  the  testator  did  not  contemplate  an  indefinite  failure  of 
issue. 

Testator,  by  will,  provided,  "I  give  to  my  son the  farm 

on  which  I  now  live and  if  he  should  not  have  any  lawful 

heirs,  then  after  his  death,  the  farm  to  be  sold  and  divided 
equally  between"  six  of  testator's  grandchildren.  The  sou  had 
two  children  both  of  whom  predeceased  him.  He  devised  tlie 
farm  to  his  widow  in  fee,  and  after  his  death  testator  s  ad- 
ministrator d.  b.  n.  c.  t.  a.  brought  an  action  of  ejectment 
therefore.  Held,  (1)  the  first  taker  took  only  a  life  estate,  and 
(2)  the  gift  over  to  the  grandchildren  was  good,  and  a  verdict 
was  properly  directed  for  the  plaintiff. 

In  such  case  there  was  no  merit  in  the  contention  that  the 
first  taker  took  an  estate  tail,  enlarged  by  Act  of  April  27, 
1855,  P.  L.  868,  into  a  fee  simple.  KoCliatio  t.  MeOli&tio, 
112. 

2.  Construction — Devises — Oift  in  fee — Defeasible  gift — In- 
tention, 

Testator  devised  his  residuary  estate,  including  certain 
realty,  to  ^'my  two  children  (naming  them)  their  heirs  and  as- 
signs, share  and  share  alike,  or  each  to  have  one-half. In 

case  of  the  death  of  either  child  during  minority,  without  is- 
sue, then  the  share  of  such  child  dying  without  issue  shall  go 
to  and  be  vested  in  such  surviving  child."  The  will  then  pro- 
vided for  a  gift  over  to  certain  named  devisees  in  case  of  the 
death  of  botli  children  without  issue.  Held,  that  each  of  the 
testator's  two  children  took  a  fee  simply  estate  in  one-half  of 
said  real  estate,  defeasible  only  by  deaA  without  issue  during 


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WILLS — continued, 

minority  and  indefeasible  on  arrival  at  the  age  of  twenty-one. 
Kanele  ▼•  IrHa,  214. 

3.  Construction — Oift  to  class — Vested  and  contingent  re- 
mainders — "Surviving" — "Survivors" — Time  for  determination 
of  class — Equality  of  distribution — Avoiding  intestacy. 

It  is  a  general  rule  of  constniction  that  the  word  "survivor'' 
or  "surviving*'  following  a  prior  gift  is  understood  as  referring 
to  the  death  of  the  testator,  unless  a  contrary  intention  is  ap- 
parent 

Where  a  testator  directed  that  the  proceeds  of  his  real  es- 
tate, in  which  he  devised  a  life  interest  to  a  named  devisee, 
should  "be  equally  divided  among  the  surviving  devise^  named 
in  this  will  or  their  legal  representatives,"  he  intended  that  the 
recipients  of  his  bounty  should  be  the  devisees  who  were  living 
at  the  time  of  his  own  death,  and  did  not  restrict  the  class  to 
those  who  should  survive  the  life  tenant. 

In  such  case,  the  reasonable  interpretation  of  the  words  "sur- 
viving devisees  or  their  legal  representatives,"  is  to  refer  the 
word  "surviving"  to  testator's  death  and  to  construe  "or  their 
legal  representatives"  (whether  meaning  executors  and  admin- 
istrators, heirs  or  next  of  kin)  as  intended  to  prevent  the  lapse 
of  the  share  of  any  legatee  who  might  die  before  the  time  for 
distribution  should  arise. 

This  interpretation  avoids  intestacy  and  secures  equality  of 
distribution  among  the  legatees.    Fetrow'a  Estate,  89. 

4.  Construction — Legacies — Charitable  bequests — Identiftca- 
Hon  of  legatee. 

A  testatrix  made  her  will  in  1909,  whereby  she  bequeathed 
one-fourth  of  the  residue  of  her  estate  to  the  "Allegheny 
County  Children's  Aid  Society,  of  Allegheny  County,  Penn- 
sylvania." The  testatrix  died  in  March,  1915.  At  the  time  of 
the  making  of  the  will  there  was  in  Allegheny  County  an  unin- 
corporated body  known  as  the  Children's  Aid  Society  of  Alle- 
gheny County.  In  May,  1913,  the  majority  of  the  members 
of  such  society  voted  to  incorporate  the  society,  and  in  Jun^, 
1913,  such  society  was  incorporated  by  the  Common  Pleas 
Court.  Thereafter  certain  persons  who  had  been  members  of 
the  unincorporated  body,  not  approving  of  the  incorporation, 
formed  an  organization  known  as  the  Children's  Aid  Society 
of  Western  Pennsylvania,  Allegheny  County  Auxiliary.  Each 
of  such  organizations  claimed  tlie  legacy.  Held,  the  court 
properly  awarded  the  legacy  to  the  incorporated  body.  Keel's 
Estate.  190. 


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WILI^S — continued. 

5.  Construction — Life  estates — Remainders  —  Revocation  of 
bequest  for  life — Effect  on  interest  in  remainder. 

Testatrix  bequeathed  her  residuary  estate  in  trust  to  pay  the 
income  equally  to  three  legatees  for  life,  and  provided  that 
upon  their  respective  deaths  the  principal  represented  by  their 
respective  shares  of  income  should  be  paid  to  the  child  or  chil- 
dren of  such  deceased  legatee.  By  codicil  testatrix  revoked  the 
bequest  to  one  of  the  three  persons  named.  Held,  such  revoca- 
tion did  not  affect  the  gift  in  remainder  to  the  children  of 
such  legatee,  but  created  an  intestacy  as  to  the  income  which 
such  legatee  would  have  received  for  life  had  the  bequest  not 
been  revoked.    May's  Eatata^  115. 

6.  Construction — Rule  against  perpetuities — Accumulations 
—Act  of  April  18, 185S,  P.  L.  603— Intention, 

Testatrix  devised  three-fourths  of  her  residuaiy  estate  in 
trust,  directing  that  the  income  be  given  to  her  three  sons  for 
life,  and  providing  that  upon  the  death  of  any  of  such  sons  the 
one-third  part  theretofore  paid  to  such  deceased  son  should 
be  equally  divided  among  his  children  and  that  the  principal 
of  such  third  should  be  divided  among  such  children  upon  their 
arriving  at  the  age  of  twenty-five  years.  The  will  then  pro- 
vided, "upon  any  of  my  sons  dying  without  children  or  the 
issue  thereof  living,  then  I  direct  my  said  trustee  to  pay  such 
interest  as  they  would  have  received  hereunder,  to  the  children 
of  my  other  sons  per  capita^  upon  their  arriving  at  the  age  of 
twenty-five  years."  The  eldest  son  of  the  testatrix  died  after  the 
testatrix  without  issue;  and  a  daughter  of  the  testatrix  claimed 
that  the  gift  over  to  the  children  of  surviving  sons  of  the  tes- 
tatrix was  void  as  an  accumulation  and  was  violative  of  the 
rule  against  perpetuities.  Held,  (1)  the  testatrix  intended  that 
the  one-third  of  the  trust  estate,  the  income  of  which  was  paid 
to  the  deceased  son  of  the  testatrix  during  his  life,  should  on 
the  death  of  such  son  vest  in  the  children  of  her  surviving  sons 
as  a  class  immediately  upon  the  death  of  such  deceased  son, 
and  (2)  that  the  will  did  not  violate  the  rule  against  perpetui- 
ties or  the  statute  against  accumulations.  MeKeowa*s  Estate^ 
216. 

7.  Devises — Real  estate — Estates  tail — Act  of  April  27, 1855, 
P.  L,  368 — Construction — Intention, 

A  testatrix  having  given  her  husband  an  interest  for  life  in 
certain  real  estate,  gave  the  remainder  to  "my  daughter,  Mari- 
etta R.  Cross,  and  my  son,  Walter  L.  Cross,  and  the  survivors 
of  them  and  their  heirs  in  fee,  but  should  they  both  die  without 
lawful  issue,  then  the  same  shall  go  to  my  sons,  Jesse  and  Wil- 


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WILLS — continued, . 

bur,  and  their  heirs.'^  Walter  L.  Cross  died  unmarried  and 
without  issue  prior  to  testatrix,  but  Marietta  E.  Cross  sur- 
vived the  testatrix  and  the  life  tenant  and  alieued  the  property. 
In  an  action  by  Jesse  and  Wilbur  against  the  grantee  of  Mari- 
etta R.  Cross,  brought  after  the  death  of  Marietta,  the  court 
held  that  Marietta  had  received  an  estate  tail  which  became 
a  fee  simple  estate  under  the  Act  of  April  27,  1855,  P.  L.  368, 
and  directed  a  verdict  for  defendant.  Held,  no  error.  Oro«i 
T.  Bye,  207. 

8.  Election  to  tahe  against  will — Exemption — Act  of  April 
1,  1909,  P.  L,  87 — Appraisement — Exemption  in  cash.  Hol- 
limser'a  Estate,  72. 

9.  Election  to  take  against  will — tihare  of  husband — Lapsed 
legacies,    Hollinser's  Estate,  75. 

10.  Joint  will — Surcharge — Failure  to  file  account — Commis- 
sions— Executors  and  administrators.     Spriaeer*s  Estate,  40. 

11.  Real  estate — Rule  in  Shelley's  Case'-:-Act  of  April  27, 
1856,  P.  L.  368— Trusts— Pry  trusts,  . 

Testator  devised  to  his  grandson  a  farm  and  wood  lot  "for 
and  during  the  term  of  his  natural  life  and  after  his  death 
unto  his  lawful  issue  and  in  case  he  has  no  lawful  issue,  then 
unto  his  next  of  kin,  in  fee.''  He  further  named  a  trustee  for 
the  estate  given  to  his  grandson  and  directed  the  trustee  "to 
keep  properly  insured  and  in  good  order  and  repair  all  build- 
ings" on  the  property.  Ko  funds  were  provided  for  insurance 
or  repairs.  Held,  that  the  trust  was  dry  and  passive  and  not 
sufficient  to  prevent  the  operation  of  the  rule  in  Shelley's  Case, 
and  that  the  grandson  took  an  estate  tail,  which  was  enlarged 
by  the  Act  of  April  27,  1855,  P.  L.  368,  into  a  fee.  Mylin  v. 
Hvrst,  77. 

12.  Validitf/ — Alleged  alteration — Handwriting  experts — Ab- 
sence of  corroboration — Weight — Petition  for  issue  d.  v.  n. — 
Refusal, 

After  direct  evidence  has  been  given  on  tlie  subject  of  hand- 
writing, the  evidence  of  experts  is  admissible  in  corroboration, 
but  the  evidence  of  experts,  without  the  support  of  other  evi- 
dence, is  insufficient  to  attack  the  validity  of  a  document. 

Where  a  petition  for  an  issue  dcvisavit  vel  non  alleged  that 
the  last  paragraph  of  the  will  had  been  added  thereto  after  the 
execution  thereof  by  testator  and  without  his  knowledge  or 
consent,  but  where  the  scrivener  of  the  will  testified  that  he 
wrote  the  entire  will  wiih  the  exception  of  the  signature  of  the 
testator  and  the  tvitnessies,  in  the  presence  of  the  testator  and 
the  subscribing  witnesses,  and  whore  the  only  evidence  in  he- 


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.718  INDEX. 

WILLS — continued. 

half  of  the  contestants  was  that  of  handwriting  experts,  .who 
testified  that  the  paragraph  in  controversy  was  not  in  their 
opinion  written  with  the  same  pen  and  ink  as  the  other  portions  ( 
of  the  will,  the  court  made  no  error  in  dismissing  the  petition. 
MoWilliMiB'  Estate,  626. 

WOKDS  AND  PHRASES. 

1.  "Carriage  cases"  distinguished-^Negligence — Master  and 
servant — Cah  company — Hire  of  team  and  driver  —  Driver  as- 
sisting  hirer's  work — Special  and  general  employment — Negli-  ' 
gence  of  driver — Injury  to  hirer's  employee — Action  against 
cah  company — Respondeat  superior,    PuUmaa  ▼•  ExoeUior  . 
Express  amd  Standard  Cab  Oo.»  393. 

2.  "Lawful  heirs" — Wills — Construction — Definite  failure  of  ' 
issue —  Life  estate — Remainders.     MoCUatlo  ▼•  MoCUmtio, 
112. 

3.  "Single  dwelling  house"  on  each  lot — Real  estate — Deeds 
— Building  restrictions — Erection  of  duplex  building  or  apart- 
ment house — Bill  in  equity — Dismissal,    Rolirer  t»  TralFord  ' 
Real  Estate  Co.,  297. 

4.  "Stop,  look  and  listen" — Negligence — Railroad  crossings 
— Presumption — Contributory  negligence — Burden  of  proof — 
Nonsuit — Evidence — Leading  question.  Waltosli  t.  Pemaa* 
R.  R.  Co.,  372. 

5.  "Surviving"  and  "survivors"  in  wills.    Fetrow*s  Estate, 

89.  ; 

6.  "Switches" — Subsequent  incorporation  of  borough — Con- 
struction of  tracks  into  new  car  bam — Interference  by  borough 
— Laches — Bill  in  equity — Injunction — Boroughs — Street  raH-  • 
ways — Townships — Orant  of  right  to  operate  road — Resolution 
— Minutes  of  meeting— rRight  to  construct  sidings  and  switches. 
Pittsbvrgli  Rjrs.  Co.  t.  Carriek  Boro.,  333. 

7.  "Usual  resident" — Criminal  law — Statute  of  limitations 
— Misdemeanors — Flight — Return — Concealment  within  State 
—Act  of  March  31,  1860,  P.  L,  427-450,  Sec.  77-'Tolling  of 
statute — Seduction — Promise  to  marry — Evidence — Sufficiency 
—Charge — Case  for  jury.    Com.  t.  Weber,  592. 

WORKMEN'S  COMPENSATION  BOARD,  see  Public  Officers. 

WORKMEN'S  COMPENSATION  LAW. 

1.  Award  by  Workmen's  Compensation  Board-^Appeal  to  ; 
Common  Pleas  Court — Order  remanding  case  to  hoard — Er- 


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INDEX.  719 

WORKMEN'S  COMPENSATION  LAW-^conUnued. 

Toneous  orders-Practice,  (7.  P. — Practice,  Supreme  Court — Ir^ 
terlocutory  order. 

On  appeal  to  the  Common  Pleas  from  a  decision  of  the 
Workmen's  Compensation  Board,  affirming  the  finding  of  a 
referee  in  favor  of  a  claimant,  the  court  should  enter  a  final 
judgment  awarding  to  each  dependent  the  amount  due  him; 
and  where  the  court  remands  the  case  to  the  Workmen's  Com- 
pensation Board  for  adjustment  in  accordance  with  the  court's 
opinion,  the  Supreme  Court,  on  appeal,  will  remand  the  record 
to  the  Common  Pleas  with  directions  to  enter  a  final  judg- 
ment.   Bakie  t.  Jeffenon  *  Clearfield  C.  A  I.  Oo^  534. 

2.  Injury  in  course  of  employment — Interval  of  leisure  while 
awaiting  material — Lighting  cigaret — Clothes  catching  afire — 
Death — Award— Act  of  June  3, 1915,  P.  L.  786, 

In  order  to  hold  an  employer  liable  under  the  Workmen's 
Compensation  Law  of  1915  it  is  not  necessary  to  show  that  the 
injury  arose  out  of  the  employment.  It  is  sufficient  if  it  oc- 
curred in  the  course  of  employment,  except  for  injuries  inten- 
tionally self-inflicted,  or  caused  by  an  act  of  a  third  person  in- 
tended to  injure  the  workman  for  reasons  personal  to  him. 

An  employer  is  liable  for  compensation  for  an  injury  sus- 
tained by  a  workman  during  a  short  interval  in  his  work  while 
awaiting  the  arrival  of  material  with  which  to  work. 

Acts  of  ministration  by  a  servant  to  himself,  such  as  quench- 
ing his  thirst,  satisfying  his  hunger,  and  protecting  himself 
from  excessive  cold,  the  performance  of  which  while  at  work 
are  reasonably  necessary  to  his  health  and  comfort,  are  inci- 
dent to  his  employment  and  acts  of  8er\'ice  therein  within  the 
workmen's  compensation  acts,  although  they  are  only  indirect- 
ly conducive  to  the  purpose  of  the  employment. 

An  employment  is  not  broken  by  mere  intervals  of  leisure 
Buch  as  those  taken  for  a  meal  and  if  an  accident  occurs  to  a 
workman  during  such  time  the  employer  is  liable  even  though 
the  workman  is  paid  by  the  hour  for  the  time  he  is  actually  at 
work,  especially  where  the  accident  occurs  on  the  employer's 
premises,  or  about  his  property,  unless  the  workman  is  doing 
something  that  is  wholly  foreign  to  his  employment. 

It  is  not  unreasonable  for  workmen  to  smoke  out  of  doors, 
during  intervals  in  their  work,  where  it  does  not  interfere  with 
their  duties. 

Where  an  employee,  during  an  intermission  in  his  work, 
while  waiting  for  material,  struck  a  match  for  the  purpose  of 
lighting  a  cigaret  and  as  a  result  his  clothing,  saturated  with 
oil,  by  reason  of  the  work  in  which  ho  was  engaged,  caught  on 


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720  INDEX. 

WORKMEN'S  COMPENSATION  lAW—cofdinued. 

fire  and  he  waa  fatally  burned,  an  award  of  compensation  to 
his  dependents  was  properly  made.  Dslkowak*  r.  S«p«riev 
StMl  Co^  578. 

WRITTEN  CONTRACTS,  see  dontracta. 


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