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Full text of "Pennsylvania state reports"

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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, 

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 p l aintifl F a 
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 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