119 Pa.

Volume 119 — Pennsylvania State Reports

68 opinions

119 Pa. 1Allen v. Krips (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY. No. 103 July Term 1887, Sup. Ct.; No. 2258 December Term 1872, O. D. C., now C. P. No. 1. On January 28, 1873, a summons in case was issued by Elwood Allen and Franklin Knight, trading as Allen & Knight, to use of Ernst Sopp v. Sarah A. W. Krips, administratrix of Henry Krips, deceased. The writ which was returnable to the first Monday of February, 1873, was returned nihil habet. An alias summons was issued on July 23, 1877, returnable to the first Monday of August following, which writ was returned, served. The cause was put at issue in 1878-9, and on May 1,1879, a jury being called there was a verdict for the plaintiffs for $4,312.29. On March 23, 1886, the jury fee was paid and judgment entered on the verdict. On March 29, 1886, the plaintiffs issued a writ of scire facias directed to Sarah A. W. Krips, Michael Barrett and Annie Barrett, his wife, formerly Annie Krips, and Harry Krips, widow and heirs of Henry Krips, deceased, commanding them to show cause, etc., why the said judgment should not be levied and paid out of the real estate of which the said Harry Krips died seized. The writ being duly served, on April 26, 1886, there was judgment against the defendants for want of appearance and the sum due liquidated at $6,123.45, which judgment on May 26, 1886 was marked to the use of J. W. Supplee. The next step in the cause was the following order: And now, April 9, 1887, on motion of Z. K. Loucks, Jr., and George Junkin, attorneys, for Sarah A. W. Krips, widow, Michael Barrett and Annie, his wife, in right of the said Annie, and Harry Krips, children and heirs at law of Henry Krips, deceased, the court grant a rule to show cause why the judgment entered against them on April 26, 1886, should not be stricken off. Returnable next Saturday at 10 o’clock A. m. On April 30,1887, the court in banc, Allison, P. J., without opinion filed, made the said rule absolute (see 19 W. N. 511), to which order the plaintiffs on May 17, 1887, excepted, and then took this writ specifying that the court erred: 1. In granting the rule of April 9, 1887, on motion unsupported by affidavit. 2. In making the order of April 30, 1887, directing that the said rule be made absolute.
119 Pa. 6Royal Ins. v. Beatty (1888)
ERROR to THE COURT OF COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY. No. 407 January Term 1887, Sup. Ct.; No. 667 March Term 1886, C. P. No. 2. An action of covenant, afterward changed to assumpsit, was brought (when, not shown), by William Beatty against the Royal Insurance Company of Liverpool, to recover upon two policies of insurance, each for $3,000 and for the term of one year expiring at the same time on January 6, 1886. At the trial on June 11, 1887, the evidence, more fully appearing in the opinion of this court, was to the effect that on the day before the term of the policies expired, the clerk of an insurance broker who had charge of them was sent to the defendant company’s office to' “ bind ” them, that is, to have it agreed upon that they should be deemed in force till it was ascertained whether there would be a change in the rates, and then the insured would determine whether to drop the policies or renew them. The clerk had a memorandum of other policies for other people with him, to which it was desired that the night clause — the privilege of running at night — be extended, and asked the renewal clerk of the insurance company to “ bind ” the policies in suit and to have the night clause extended to the others. The insurance clerk discussed with the broker’s clerk the subject of the night clause in the other policies, but said nothing and did nothing with reference to “ binding ” the policies in suit. The broker’s clerk assumed or believed he had assented and so reported to his own office, where memoranda were made upon the broker’s books indicating that the policies were renewed. The loss occurred on January 10th, following. ■ The defendant company’s renewal clerk testified that he did no't hear the request to “ bind ” the policies in suit, and the policies had not been renewed. At the close of the testimony, the defendant requested the court to charge the jury: 1. That there was no evidence of an acceptance by the defendant of the offer to renew the plaintiff’s policies, and the verdict of the jury must be for the defendant.1 The court, Hare, P. J., refused to affirm this point, and submitted the cause upon the evidence, the charge not appearing upon the paper books. The verdict of the jury was for the plaintiff, amount not shown, and, judgment being entered thereon, the defendant took this writ, assigning as error, inter alia,, the refusal to affirm the point submitted by the defendant.1
119 Pa. 12Rushton v. Lippincott (1888)
ERROR TO THE COURT OE COMMON PLEAS NO. 2 OE PHILADELPHIA COUNTY. No. 159 July Term 1887, Sup. Ct.; court below, No. 45 September Term 1880, C. P. No. 2. On August 20, 1880, Willie Rushton brought an action of ejectment against William A. Lippincott, to recover a house and lot on the west side of Eighth street above Fairmount avenue. The cause was put at issue by rule to plead on May 21, 1886, under a disclaimer by the defendant of part of the land in dispute and a plea of not guilty as to the residue. At the trial on October 28, 1886, the facts appeared: On October 9,1846, one Steimnetz conveyed the property in dispute, reserving a ground-rent of $90.25, to John Ketch-am, who on April 26, 1856, executed a mortgage thereon to Sophia W. Plitt, for $3,000, payable in one year with interest ; recorded. In 1878, Mr. Ketcham died leaving a widow and five children, one of whom was the wife of William A. Lippincott, the defendant, letters of administration being issued to his son Hewlings C. Ketcham. In 1879, the mortgage was assigned to Willie Rushton, the plaintiff. Upon the premises there was a three-story brick dwelling, but unoccupied by the widow and heirs after the death of John Ketcham. The ground-rent was left unpaid and, on January 29, 1880, Steinmetz’s executors, to No. 801 December Term 1879, C. P. No. 1, brought an action of covenant against Hew-lings C. Ketcham, administrator of John Ketcham, to recover three half-yearly payments of the ground-rent then in arrear. In this action, on February 17, 1880, judgment was obtained for want of an appearance after due service, and the sum due liquidated at $142.47, to be levied of the land described in the ground-rent deed. The property was then condemned upon a fieri facias and, upon writ of venditioni exponas issued on March 4, 1880, sold at sheriff’s sale to William A. Lippincott, and the sheriff’s deed delivered. The plaintiff proved his title as mortgagee, and rested. The defendant then offered in evidence the deed from Steinmetz to Ketcham, reserving’ the ground-rent, the record of No. 801 December Term 1879, C. P. No. 1, the writs of execution process and the sheriff’s deed to William A. Lippincott, before referred to. The plaintiff objected to the offer of said record and deed, because it did not appear that any scire facias had been issued to the widow and heirs of John Ketcham, deceased, against whose administrator the suit was brought under which the sheriff’s sale was had, in accordance with the provisions of § 34, act of February 24,1834, P. L. 80. The objection was overruled and offers admitted.1 It was then agreed that John Ketcham died intestate, holding the property in fee subject to the ground-rent and the plaintiff’s mortgage, and leaving a widow and children, one of whom was the wife of the defendant; that the decedent died insolvent, heavily indebted to William A. Lippincott, and that his real estate was incumbered to more than its value, which was $14,000 or $15,000. Under the foregoing facts the court directed a verdict for the plaintiff subject to the decision of the following questions reserved. 1. Whether the proceedings in the case of Spencer et al., executors of Steinmetz, against Ketcham, administrator, the record of which was offered by the defendant, passed title to the purchaser.8 2. Whether the purchaser being the husband of one of the heirs, took as trustee for them and subject to their ancestor’s mortgage under which plaintiff claimed.3 On June 1, 1887, the court in banc ordered judgment for the defendant upon the points reserved, Mitchell, J., delivering an opinion, which, after showing how the questions arose, proceeded: 1. When it was laid down in Quain’s Appeal, 22 Pa. 510, that an executor is not liable for ground-rent accruing after the death of his testator, a serious question arose as to the proper remedy to enforce payment. By the usual terms of the deed, the lessee covenanted for himself, his heirs, executors, etc., to pay the rent. A failure to pay was a breach for which his executor was expressly stipulated to be liable. He seemed, therefore, the proper party to sue, as he unquestionably was, for the rent accruing in the testator’s lifetime. This question came before the District Court in Gardiner v. Painter, 8 Phila. 365, and was elaborately considered in an opinion by Stboud, J., holding that the executor was the proper party defendant, but that the judgment should be restricted to the land charged. The same question was before the Supreme Court in Williams’s Appeal, 47 Pa. 283, and after argument by the most eminent counsel at the bar, the decision in Gardiner v. Painter was expressly approved, and, referring to the remark of Judge Stboud, that the records of the District Court would show hundreds of judgments of a similar kind, Thompson, J., says, “ the local practice thus shown indicates the proper rule.” It was argued by the plaintiff in the present ease that while the judgment might be good, under the authority of Gardiner v. Painter, yet that execution was void unless the heirs were brought in by scire facias under § 34 of the act of February 24, 1834. But it is plain that this section was meant to protect land in the hands of heirs and devisees from being charged without notice to them with the payment of general debts of the ancestor for which the land is not primarily liable, and does not apply to cases where the land is already charged as by mortgage: Chambers v. Carson, 2 Wh. 365; or by judgment against the ancestor in his lifetime, McMillan v. Red, 4 W. & S. 237; McMurray v. Hopper, 43 Pa. 468. All the reasons of these decisions apply with equal force to the case of ground-rents. I have examined the record of Gardiner v. Painter, D. C., No. 1859 December Term 1857, and find that a fieri facias and venditioni exponas were issued in due course and the land sold, without any scire facias to the heirs. This would seem to be conclusive that the District Court in giving judgment against the executor meant that execution de terris should follow; and I am informed by two of the most experienced and eminent conveyancing counsel at this bar that such has been the uniform practice. That this practice is not merely local is shown by the language of Judge Rogers in McMillan v. Red, 4 W. & S. 238, where, as long ago as 1842, he says, in reference to a scire facias to revive a judgment obtained during the lifetime of the ancestor, that the act of 1834 does not apply, and “ such has been the construction of the act in perhaps a majority of the judicial districts.” These established decisions in perfectly analogous cases, and the express approval of Gardiner v. Painter by the Supreme Court in Williams’s Appeal, are conclusive of the validity of the judgment and execution in the present case to pass the title to the purchaser. 2. Upon the second question reserved we are saved the necessity of further discussion by the decision of the Supreme Court in Rauch v. Dech, 116 Pa. 157, announced since the argument of the present case. It was there held that the lien of a discharged mortgage is not revived by the mortgagor’s re-acquirement of the title to the mortgaged property, unless he has been guilty of fraud. The principles of that case apply á fortiori to this. The mortgage was discharged by a sale under a prior incumbrance with which tho defendant was in no wise concerned. There is no imputation of fraud on his part, nor is it claimed that he did not buy the land in good faith with his own money. His only connection with the land prior to his purchase, was as husband of one of the tenants in common of a barren legal title, cast upon them by descent, and not reduced to possession or recognized by them in any way. In the face of these facts, to hold, in an action, not by the other co-tenants, but by an adverse incumbrancer, that the defendant must be conclusively presumed to have bought as trustee for his wife, and therefore that he is remitted to her prior title, that her title enures to the benefit of all the co-tenants, and is therefore the title of the ancestor, and subject to the incumbrances due by him, would be directly .contrary to the principle of Rauch v. Dech. Judgment is therefore entered for defendant upon the points reserved, notwithstanding the verdict. Judgment being entered and a bill of exceptions sealed, the plaintiff then took this writ specifying that the court erred: 1. In admitting the defendant’s offer.1 2. In ordering judgment for the defendant non obstante veredicto on the first point reserved.8 3. In ordering judgment for the defendant non obstante veredicto on the second point reserved.3 4. In deciding that the defendant could set up against the plaintiff’s mortgage the title acquired by him at the sheriff’s sale, it having been admitted that the mortgagor died intestate prior to the sheriff’s sale, leaving a widow and five children, one of whom was the wife of the defendant. 5. In not entering judgment for the plaintiff on the verdict.
119 Pa. 24Pennsylvania R. Co. v. Stern & Spiegel (1888)
ERROR, TO THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY. No. 190 July Term 1887, Sup. Ct.; court below, No. 48 December Term 1884, C. P. No. 4. On November 18, 1884, Raphael Stern and Rosa Spiegel, trading as Stern & Spiegel, brought suit against the Pennsylvania R. Co., to recover the value of a car-load of bones shipped by the plaintiffs from Cincinnati consigned to themselves at Landenburg, Chester county. At tbe trial on May 9,1887, tbe facts appeared: The shipment was made on September 20,1888, over railroads connecting with the defendant company and by the latter carried to Landenburg. The plaintiffs attached to the bill of t lading a draft at forty-five days upon Thomas Whann, Jr., Landenburg, for $310.45, and sent it to the Oxford National Bank, of Chester county, for collection. On September 23d, the plaintiffs wrote to Mr. Whann inclosing an invoice and W. C. for the car-load of bones, stating that the freight was prepaid, and that they had drawn upon him “as per arrangements,” requesting that the draft be protected. The invoice was as follows : Cincinnati, Sep. 22, 1883. Mr. Thos. Whann, Jr., Landenburg, Pa. Bought of Stern & Spiegel, Exporters and Dealers in Horns, Hoofs, Bones, Glue, etc., 595, 597 and 599 West 5th St. Terms: 45 dys acceptance to BL 1 Car Bones, P. F. W. & C., No. 4212. Net 23285 at $28.00 pt. $325 99 Less difference Freight Car 456, Invoice July 30, 15 84 $310 15 Freight prepaid. Shipped from Bay City, Mich., Flint & Pere Marquette R. R. via. F. & P. M. R. R. Loss and Damage, ■ to , No. 705. BL with Draft» Claim. The letter and invoice were received by Mr. Whann on September 25th. The car arrived at Landenburg on the next day, and on that day the company’s agent, to whom was exhibited the letter and invoice from the shippers, delivered the consignment to Mr. Whann. On September 29, 1883, the National Bank of West Grove, a place near Landenburg, notified Mr. Whann that it held the draft upon him from the Oxford National Bank, with bill of lading attached, for collection. Mr. Whann entered into a correspondence with the drawers of the draft, which was finally returned unaccepted on October 2d, and subsequently he failed and did not pay for the bones. There was evidence that Mr. Whann had been receiving such shipments from the plaintiffs for a number of years, delivered to him upon his siding, upon the production of such letters and invoices, without the production or surrender of bills of lading, and without knowledge on the part of the defendant company whether or not the drafts attached to the bills of lading had or had not been accepted. It was claimed, moreover, that this manner of dealing was known to the plaintiffs. The evidence on this subject was as follows: Thomas Whann testified: They (the plaintiffs) would write and notify me a certain car was on the way, for me to take care of it, and accept the draft. Then the car would come; sometimes the draft would come before the car, sometimes the car would come before the draft, just according to how many banks the draft would come through. I would accept the draft if it came first; if it came afterwards, I accepted it until this one. Q. Then you would get the bill of lading? A. No, sir; I never got the bill of lading; sometimes I might when I got my bank-book fixed up. The'bill of lading and draft all came together. Q. That is, after the draft became due ? A. Yes, sir. The agent of the railroad company, Samuel Martin, testified : Q. Did the bank give you any notice at any time when drafts had been accepted? A. No, sir; I do not know that I ever received any notice from the bank. Q. Did you receive any notice hr this case that the draft had not been accepted ? A. No, sir. The court, Willson, J., charged the jury: Gentlemen of the jury: It is sufficient for me to say to you that, this having been a consignment to the order of the plaintiffs, which was brought home to the notice of defendant by the manifest received by its agent and production to him of the invoice showing that the delivery of the bones in question was to be made upon the production of the bill of lading, there is, in my judgment, nothing in the evidence thus far which excuses the defendant for failure to make delivery according to these terms. In other words, that they could only properly deliver upon the production of the bill of lading, or upon the consent of the plaintiffs, or permission of the plaintiffs given to them in some other way than any which has appeared in evide'nce in this case. That being my view, the proper verdict for you to render in the case is a verdict for the plaintiffs for the amount of $310.15, with interest from the time when the delivery was made. The verdict of the jury was in favor of the plaintiffs for $370.82, and judgment being entered thereon, the defendant took this writ, assigning that the court erred in charging as stated and in directing the jury to find for the plaintiffs.
119 Pa. 30Kilpatrick v. Home B. & L. Ass'n (1888)
1. Though, in the absence of an agreement to the contrary, the acceptance on a debt of the check or note either of the debtor or of a third person is but a conditional payment, yet such acceptance implies an undertaking of due diligence in presenting for payment, etc., and, in case of loss from want of such diligence, it will be held to operate as payment. 2. A mortgage debtor to a building and loan association caused the check of his agent for which he had supplied the funds to be passed, under the direction of the association’s secretary, to its solicitor, as on account of the debt, which check became worthless by reason of the delay of the solicitor in presenting it for payment: Held, that as between the debtor and the association the latter should bear the loss thus occasioned.
119 Pa. 37Philad. Traction Co. v. Orbann (1888)
3 OF PHILADELPHIA CO. No. 85 July Term 1887, Sup. Ct.; court below, No. 384 June Term 1886, C. P. No. 3. On August 5,1886, Charles T. Orbann, by his next friend Harry McKnight, brought an action against The Philadelphia Traction Company, to recover damages for personal injuries.
119 Pa. 48Aubert's Appeal (1888)Petition dismissed
APPEAL FROM THE DECREE OF THE ORPHANS’ COURT OF PHILADELPHIA COUNTY. No. 117 July Term 1887, Sup. Ct.; court below, No. 13 July Term 1880, C. P. On October 19, 1886, was filed the account of the Pennsylvania Company for Insurance on Lives and Granting’ Annuities, as trustee for Caroline G. Getz and Thomas H. DeSilver, under the will of George P. DeSilver, deceased, one paragraph of which will was as follows: 7. I give, bequeath and devise the other and remaining one half part of all the rest, residue and remainder of my estate and property, both real and personal, and wheresoever situated,;of which I may die seized, possessed, or be entitled to, to my executors and to the survivors or survivor of them, in trust, to take and hold the real estate and the rents, issues and profits thereof, and to receive and invest the personal property, or the proceeds thereof, and to pay the said rents, issues and profits of the realty and the income from the personalty to my brother Thomas H. DeSilver, and my sister Caroline E. Getz, during their respective lives, share and share alike; and upon the death of either, the children of the deceased to receive and share with, the survivor one half part of such rents, issues and profits of the realty and income from the personalty; and upon the death of both my said brother and sister, in trust, to divide and distribute the said one half part of all the rest, residue and remainder of my real and personal estate to and among the children of my said brother and sister in the following manner: The children of my brother Thomas H. DeSilver to take and receive one half of the said half part, or one fourth of my residuary estate, and the children of Caroline E. Getz to take and receive the other one half of the said half part, or one fourth of my residuary estate; and if any of the children of said brother and sister should be deceased at the time of my. death or at the time of such division and distribution, leaving issue, such issue shall take and receive the same share or portion his, her, or their parent would receive, if he or she were living at the time of such division and distribution. On November 4, 1886, the said account having been called for audit, Hanna, P. J., filed the following adjudication : The only question arising is what disposition is to be made of the income and principal of the estate, held in trust during the lifetime of Thomas H. DeSilver, the deceased cestui que trust. The trust arises under the will of George P. DeSilver, who died about May, 1873. He left his wife surviving, who after-wards married again, and died about August 2, 1883. She was provided for by a cash legacy, together with all his furniture and personal effects absolutely, and a certain fund to be held in trust for her use during life. The fund now being accounted for, is one half part of the residuary estate, held in trust under the seventh clause of said will. The said Thomas H. DeSilver died September 16, 1886, without leaving any issue him surviving. The bequest made it will be observed is one half of the residuary estate, and this is to be held, in trust equally, for the benefit of the brother and sister of testator for life. Testator contemplated each would leave children surviving, for he provides that upon the death of either, his or her children should share with the survivor in one half part of the income. His intention is also clear that the trust should continue until the death of the survivor of his brother, for she is entitled to the one half share of its income and profits, not to the income and profits of one half of the fund. Therefore, no distribution can be made of the trust fund. But one half of the income must go somewhere. And, as before remarked, it is undisposed of by testator during the life of Mrs. Getz. It is not bequeathed to her, nor to her children. There is, therefore, no alternative but to hold, as to this one half of the income, the testator died intestate, and it must hereafter be paid to his heirs at law. And as it appears he died without issue,.one half is payable to Ms widow or her executor, she being now deceased, and one half to testator’s heirs and next of kin, according to our intestate law. This will continue during the lifetime of Mrs. Getz, when the corpus of the trust fund will be accounted for and finally distributed. That the widow is entitled, notwithstanding the provision made for her by the will, is well settled: Reed’s Appeal, 82 Pa. 428; Carman’s Appeal, 2 Penny. 332. The auditing judge is also of the opinion that the costs of filing and settlement of the account, including counsel fee, should be borne by the income of the trust estate: Butterbaugh’s Appeal, 98 Pa. 351. The adjudication became absolute on December 11,1886, but on February 12,1887, Jean Ernest Aubert, husband of the late Claire Elizabeth, formerly wife of George P. DeSilver, deceased, showing excuse for delay, prayed for leave to file exceptions to the adjudication, nunc pro tunc: 1. That the court erred in not making distribution of one half of the residuary trust fund under the seventh paragraph of said will. 2. That the court erred in not awarding one half of the principal of said fund to the exceptant. A citation having been awarded requiring the trustee to show cause, etc., upon the hearing on April 2, 1887, the court, Penbose, J., filed the following opinion: Because there is a present intestacy as to one half of the income arising from the fund embraced in the account, and because there will be an intestacy as to one half of the principal, it does not follow that distribution to this extent can now be made of the principal. The testator has in express terms deferred the time -for such distribution until the death of the survivor of the two persons to whom he gave the income for life ; at the death of either, one half the income going to the survivor and the other half to the children and issue of the one so dying. The survivor is entitled to the benefit of the investment of the whole fund in order that she may be secure in the receipt of half of the income. The gift is not of the income of one half, but of one half of the whole, and the case falls within the principle of Wilen’s Appeal, 105 Pa. 121. This right on the part of the survivor is not affected by the fact that the death of her co-tenant for life without issue has left one half the income to pass under the intestate laws. The persons claiming by reason of the intestacy have no more right to demand distribution before the time fixed by the testator than the children of the deceased cestui que trust would have had. The will of the testator cannot be disregarded so long as it violates no rule of law, and the trust which it creates has a manifest and legitimate purpose. The petitioner thereupon took this appeal, specifying that the court erred in not making a distribution of the one half of the residuary trust finid as desired in said exceptions.
119 Pa. 53Barnes v. Sowden (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY. I No. 192 July Term 1887, Sup. Ct.; court below, No. 871 December Term 1886. • On December 31, 1886, an action for negligence was begun-by Richard Sowden and Lillie, his wife, in right of said wife, against Samuel W. Barnes. At the trial on May 6, 1887, under the plea of not guilty, it appeared that on November 80,1886, Samuel W. Barnes by his employees, was engaged in opening a trench for a drainpipe from the street across the pavement to the front of Lyon’s store, at No. 2226 on the west side of North Front street. About 10:30 A. M. the trench was dug from the car-track to the curb, and from the curb to within 3 ft. 7 in. of the store. At that hour Mrs. Sowden with her sister, Mrs. Burns, were walking southwards on the west side of Front street, and stopped at the north bulk window of the store. Mrs. Burns after a moment passed on to the south window and calling Mrs. Sowden’s attention, the latter stepped rather backwards, continuing to look in at the window she left, and fell into the end of the trench and was injured. The facts, with the condition of the trench, fully appear in the opinion of this court. At the close of the plaintiff’s case, the defendant moved for a compulsory nonsuit, which was refused. When the testimony was closed on both sides, the defendant requested the court to charge the jury: That, under all the evidence, the verdict should be for the defendant. The court, Willson, J., refused the defendant’s point and charged the jury as follows: It is undoubtedly the right of all persons who use the highways of the city to walk along those highways. They have a right there, and it is their right to expect to find those highways in a proper condition for travel, and if any work is going on, either done under public supervision or private order and direction, it is their right to presume that, if there be such work going on, there shall be something in the way of a warning to indicate to them that they must be careful at that particular point; and it is the duty of any person, whether he be a public officer or private citizen, when he makes an excavation in the highway, to do whatever is reasonably proper for the purpose of guarding those who use the highways against receiving injury from the existence of such an excavation; but it is not the duty of any person who is making such an excavation to do what will absolutely prevent any injury. It is not the duty of such a person, either public or private in his relations to the work, to build a wall around the excavation so that it would be impossible for a person to stumble or fall into it or to climb over it. All that any person engaged in such 'work is bound to do under such circumstances, is to do that which in view of the ordinary uses of the highway would be sufficient, that is, provide a sufficient warning to those who are using the highway. Now it was a perfectly lawful thing which the defendant was engaged in doing. It seems, according to the evidence, ' that he was engaged in the excavation of a trench under the orders of one of the public departments of this city. That does not make his case either better or worse. But he had a right to do what he did in the excavation of that trench, and he is to be protected in that right. He has just as good a ground to appeal to you, in case you believe upon the whole case that the evidence shows he was not negligent, or shows that the plaintiff was negligent, and ask you to find a verdict in his favor as the plaintiff has, if the facts are otherwise upon the evidence, to ask you to find a verdict in her favor..... The question, therefore, upon this branch of the defendant’s negligence comes down to this: Did he do all that he ought to have done, with a reasonable regard for the rights of people that were using that highway? Did he do all that he was bound to anticipate or to think he ought to do, in order to afford a sufficient warning to those who were using the highway ? If he did, that is an end of the case, and your verdict must be for the defendant. What more ought he to have done? ■ It is said here that he should have put up a rail alongside of that trench. Now, if you are of the opinion or belief, upon the evidence, that he put a pile of dirt there in the neighborhood of three feet high, of what use would a rail have been? If you believe that he did that, that he put along the whole length of the north side of that trench, practically, or very near to the end of it, by reason of the excavation and throwing out of the dirt from the pit, a pile of dirt in the neighborhood of three feet high, what more ought he to have done? Was not that all that was reasonably requisite to warn any person who was using the highway in a proper manner? Was he bound to consider that any other obligation than that was resting upon him? Was there any disregard of the rights of the public, of persons using the highway, if he did so much? . . . Now, a person, occupying the position which the defendant did at that time, was not bound to put any warning or barrier which would afford a protection to people who were reckless and careless in the use of the street or highway. Persons who walk along the footways or cross the streets of our city are bound to use their own faculties. They are bound to use their eyes and their hearing. You and I would have no right to walk along the footways of the city with our eyes closed, and then, if we stumbled into a trench, attempt to hold the city, or any person who might be doing such work, responsible for a broken leg. That would be simply absurd..... Now this plaintiff, according to her own testimony and the testimony of her sister, who was with her, was out upon what the ladies would call a shopping expedition, and they were looking into the windows as they went along. That they had a perfect right to do. When they got to this store, Lyon’s store, they looked into it at some goods which they saw there and walked along past it. The plaintiff says she stepped off from the cellar door, which was elevated only slightly above the level of the pavement, two or three inches, according to the testimony, took one step, and then stepped off the end of this trench into it, and received the injury which followed. She says she did not see the trench, and did not see the pile of dirt, if there was any pile there; that she saw nothing of the kind, and the first she knew of the trench was when she slipped off and fell down into it. Now, was she taking due and proper care of herself? Upon the plaintiff’s case alone, and you heard what I said to the counsel arguing the motion for a nonsuit, I should undoubtedly have taken a very different view of the liability of the defendant in this case from what, upon all the evidence, if I were sitting where you are sitting, I should probably take. I regard the evidence which has been produced here on the part of the defendant as altering very much the way in which I as a man and you as jurors ought to look upon this case, if that evidence is to be believed. The plaintiff was bound, when she was walking along there, no matter what her purpose in going was, while she had a right to use the highways, to use her faculties in an ordinary way. She was bound to do what an ordinarily prudent and careful person would do for her own protection; she was bound to use her' eyes. Not that she was to keep her eyes constantly and at every moment upon the pavement upon which she was walking, but she was bound to do what people walking along the streets ought to do as they ordinarily walk and use the streets in order to use them at that time safely. Now, do you think that a woman walking along the street where there was a barrier consisting of a pile of earth several feet in height, if there was such a barrier there before her, in broad daylight, for some distance, was doing what was prudent and careful; do you believe that she could have been, in failing to see that, and then stumbling into the end of the trench and thereby getting hurt ? The evidence of some of the defendant’s witnesses is that when she was first taken out she said with an exclamation as to the nature of her injury, “ Oh! it was all my own fault; I was not looking where I was. going.” She says she does not remember saying that, and her sister says she does not remember that she said it, but there is the evidence of several witnesses who were and are apparently disinterested to the effect that she did say that. But it is argued on the part of the plaintiff that this was a remark which was made when she was in a condition of confusion, and perhaps hysteria or great excitement. She probably was in such a state of excitement, but if she made the remark, would the state of excitement account for such a remark, if that was not the conviction of her own mind at the time ? It has been argued to you if she had come here and said upon the stand, “ That was my own fault; I did not look where I was going, and I met my injury in consequence,” that would be and ought to be the end of the case, and the court would dispose of the case very quickly on such testimony ; but it is my duty in this trial to leave the evidence to you, and I do it with full confidence that you will apply the principles of law which I have stated, and which you ought and are bound to do under your oaths. If she was careless and received the injury in consequence of her carelessness, the law says she cannot recover, and it is your duty to apply that law where the facts justify it...... The jury returned a verdict in favor of the plaintiff for 1300; a rule for a new trial was discharged, and judgment entered on the verdict. Thereupon the defendant took this writ assigning as error the refusal to charge that under all the evidence the verdict should be for the defendant.
119 Pa. 61Spear v. P. W. & B. R. (1888)Rule discharged
ERNÓN TO THE COUNT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY. No. 12 January Term 1888, Sup. Ct.; court below, No. 52 March Term 1886, C. P. No. 3. On February 10, 1886, Mrs. Flora O. Spear brought an action against the Phil. W. &. B. R. Co. and the Penn. R. Co., Robert Craven and H. F. Kenney, to recover damages for injuries resulting in the death of Adrian Spear, her husband. At the trial on October 7, 1886, before Finletter, P. J., ' there was a verdict fox the plaintiff for $6,000. A rule for a new trial having been made absolute, the case came to a second trial on April 25,1887, before Reed, J., when it was made to appear that on August 17, 1885, Adrian Spear was a passenger on board the steamboat, “ Samuel M. Felton.” The boat left 'Chestnut street wharf and had scarcely reached the foot of Walnut, when an explosion occurred blowing its forward part to pieces. A fragment of flying timber struck Mr. Spear, inflicting injuries from which he died after five days of severe suffering. The boat was owned and operated by the P. W. & B. R. Co. There was no evidence adduced establishing the cause of the explosion. It was not gunpowder, nor steam, nor a piece of freight; but there was testimony on the part of the defendants introduced to support the theory that it was dynamite. The court, Reed, J., answered the points presented and charged the jury as follows: In my opinion the evidence in this case does not rpaterially differ from that which was offered when this case was tried • before. The matter of the weight of the evidence has been a subject of consideration by the court in banc, and in giving you the direction I shall give you, I am expressing the opinion of the court at large. I will first, however, pass upon the points of the plaintiff, after which I will give you a single direction. The plaintiff’s counsel has asked me to charge you: 1. The mere fact that the deceased was killed by an explosion on the defendants’ boat whilst he was a passenger, entitles him to your verdict, if he was himself using due care, unless you are satisfied that the defendants could not have prevented the injuries had they used the highest degree of care and foresight that could be reasonably expected from a common carrier of passengers. Answer: I affirm that point. 2. The happening of the accident being, on its face, proof of negligence, it is not sufficient as a defence merely to show that the accident might have happened without negligence in the defendants. It is, on the contrary, necessary for them to satisfy you by proof that it did not happen through any failure of theirs to use the highest degree of care to be expected of a human being intrusted with human life. Answer: I affirm that point also. 3. When a carrier receives a passenger to be carried for its profit, it places itself under the obligation of carrying safely, if it can by the use of the greatest degree of care and foresight of which a human being is reasonably capable, and the defendants are liable if the injury to the deceased resulted from a failure to use such care, while he was himself in the exercise of due care. Answer: I affirm that also. 4. Whether the. evidence of the defendants’ employees, who were in charge of the boat at the time of the accident, is to be believed, is a question for the jury; but where such an accident happens, it is a presumption of fact that the plaintiff has been ordinarily careful, and that the defendant has failed in its duty, until the contrary is shown by evidence. Answer: I affirm that point. Of course, everything of that kind is for the jury, and they are to determine what evidence is to be believed; but I will direct you in this case that it is your duty, under the evidence, to find a verdict for the defendants, in the absence of any proof of negligence on their part. The jury having reported a failure to agree, the court instructed them further: I do not think that you understood me clearly in what I said to you. It is my right and duty to say that what has been found to be the law by the court in banc shall be obeyed in this case. If this court has made any mistake, it can be corrected by the Supreme Court and a new trial ordered. If, for any reason, this jury should be discharged, the effect to the plaintiff would be injurious, inasmuch as it would prevent this case being reviewed by the Supreme Court at as early a day as it can be reviewed if you find a verdict for the defendants now. Therefore, while I have no power to compel you, as men, to do any particular act, yet I have the power, which I shall certainly exercise, of directing a verdict in this case to be entered for the defendants. However, it would be better for the plaintiff that you should render a verdict in accordance with the instructions of the court, because if that is not done it will cause a year or two of delay in having this case reviewed by the Supreme Court...... ■Therefore, I hope you will obey the instructions of the court and render a verdict for the defendants. The verdict returned was for the defendants. On July 14, 188T, a rule for a new trial was discharged, Finletter, P. J., filing the following opinion: The plaintiff proved that her husband was a passenger on the steamboat of the defendants, upon which an explosion, accompanied by a black smoke, occurred; that he was injured thereby and died a few days subsequently. The defendants satisfactorily established that the explosion did not arise from the boiler, or from anything connected with the boat or its management. They also gave evidence to show that it might have occurred from dynamite, which might have been placed there by a person mentioned by one of the witnesses, and that they had no knowledge of these facts, and could not have had. Neither the plaintiff nor the defendants gave any testimony which established the cause of the explosion. There was no testimony from which the jury could infer that it arose from any defect in the boat or its management, or from any cause over which the defendant could have had control. The court directed the jury to find a verdict for the defendants. It may not be questioned that a prima facie case established by a presumption of law must be submitted to the jury. Until successfully rebutted, it should have all the effect of a judgment. If therefore the presumption of negligence did arise from the injury to the passenger, the case should have been determined by the jury, although the evidence produced by the defendants against the presumption was conclusive. It then becomes important to ascertain under what circumstances a presumption of negligence arises against a carrier when a passenger is injured. In Laing v. Colder, 8 Pa. 481, the passenger’s arm was broken by reason of the closeness of the car to the walls of a bridge. That is, the construction of the road made it dangerous. It was held to be the duty of the company to give timely warning. In Sullivan v. Railroad Co., 30 Pa. 234, the car came in collision with a cow, and was overthrown. It was held that the company should guard against such accidents. In P. & C. R. Co. v. Pillow, 76 Pa. 513, the passenger was injured by fighting passengers. It was held that the ears should be kept free from disorderly persons. In Del., L. etc. R. Co. v. Napheys, 90 Pa. 141, Mrs. Napheys was injured in stepping from the car. Sterrett, J., said: “ The general rule is that a party who alleges negligence as the basis of a claim for damages is bound to prove the fact alleged. If a passenger is injured in a collision, or by the overthrow of the ear, or by the breaking of any part of the machinery, he-is not required to do more than prove the fact and his injury: a prima facie case is made out.” In P. & R. R. Co. v. Anderson, 94 Pa. 357, the accident occurred from the washing away of the embankment of the road arising from insufficient drainage. Gordon, J., considered all the previous cases, and deduced the principle, that where, for a consideration, a railroad undertakes to transport a passenger, there arises an implied contract upon the part of the company that it has for that purpose provided a sufficient' road, machinery, and cars; that where a passenger is injured by any accident arising from a collision or a defect in the road or equipment, he is required in the first place to prove no more than the fact of the accident and the extent of the injury. In this case the plaintiff contended that whenever a passenger is injured a presumption of negligence arises against the carrier, which he must rebut by evidence. The authorities cited do not seem to carry the doctrine so far. In all of them it will be observed that the accidents arose from causes affecting the road, or its equipment, or which might have been guarded against by proper care, and therefore negligence was reasonably presumed. In Naplrey’s case it was alleged that the company had not provided a sufficient exit from the car, which was the cause of the injury. There was evidence that the step was from twenty-five to twenty-nine inches from the ground. The jury might have inferred, as was doubtless the fact, that the height of the step caused the injury. Certainly the passenger is under the protection of the company from the time he enters the car until he leaves it. And yet Justipe Sterrett said: “ Taking the uncontradicted facts of this case as they were presented, there existed no reason for relaxing the general rule, that he who alleges negligence as the basis of a claim for damages is bound to prove it affirmatively.” In Anderson’s case, Justice Gordon said: “The carrier’s contract is to provide sufficient means for transportation and to guard against external causes of danger, and that when a passenger is injured by a collision, or a defect in the road or its equipment, the presumption of negligence arises.” It follows from these authorities that when the accident arises from none of these causes, or where the cause is unascertainable, the fact of the accident is not sufficient to warrant the presumption of negligence. In such cases the general rule applies, “ that where negligence is alleged it must be proved.” There was no evidence to show that Mr. Spear was injured by any accident arising out of or connected with the boat, its equipment, or management, or from any cause over which the defendants had control, or could have guarded against, and therefore the presumption of negligence did not arise. Judgment having been entered on the verdict, the plaintiff took this writ, assigning as error the instruction to the jury to find a verdict for the defendants.
119 Pa. 70Stager v. Ridge Ave. Pass. Ry. Co. (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY. No. 121 January Term 1888, Sup. Ct.; court below, No. 952 December Term, 1883, C. P. No. 4. On February 2, 1884, an action was begun by Harry W. Stager, by his father and next friend, Theodore H. Stager, against the Ridge Avenue Passenger Ry. Co., to recover damages for personal injuries. On January 29, 1885, the death of Harry W. Stager was suggested and Theodore H. Stager, his administrator, was substituted as plaintiff. At the trial on March 1,1887, before Arnold, J., the case of the plaintiff was made out by the testimony of several witnesses corroborating the testimony of Harry W. Stager taken by deposition before Ms death occurring in April, from the injuries received eleven weeks before.' He testifies that on the morning of January 7, 1884, he was on his way to his work and hailed the defendant company’s car: I was standing on the east side of Fifteenth street, and on the south side of Ridge avenue, about quarter of eight in the morning, and I signaled to the driver of a car on the Ridge Avenue line to stop, and he slackened up almost to a stop so that any one could get on handy. I got my right foot on and got a hold of both handles, and was going to throw the other one on, and the horses started up as if they had been struck with a whip, with a sudden jerk; I don’t know whether they were struck with the wlfip or not. The jar was so'sudden that it threw my leg off, and I lost the grip of my right hand wMch was on the guard of the dasher, which was towards the front of the car going down town. This was the front platform. I thought it was not so full as the back platform. The sudden jerk threw my foot off and caused me to lose the grip of my right hand; that threw me under the car and I held on with my left hand as long as I could, and then I had to let go and I went down flat on my back, and the wheels of the car passed over both legs. Before I got in I saw people on the back platform. I saw them from a distance before I crossed Fifteenth street, and there seemed to be people there, and it looked as if it was crowded. I did not notice the number of people in the inside of the car. There were some people on the front platform, but there was room for more. There were no guards or gates on the front platform. Passengers were accustomed to get on and off the cars of this line by the front platform as well as by the rear platform. It appeared that the boy’s father had brought an action in his own right, for the same injuries. At the close of the plaintiff’s case, on motion, the court ordered a compulsory nonsuit. Subsequently a rule to show cause why the judgment of nonsuit should not be taken off, was discharged, Arnold, J., delivering the opinion, ruling that the evidence of the plaintiff showed "that the injury which resulted in the death of Harry W. Stager was caused by his own negligence in attempting to get upon a moving car by way of the front platform; he had signaled the driver to stop, and the car’s speed was slackened nearly to a full stop, when, without waiting, he jumped on the front platform of the car, lost his hold, fell off, and was run over; the accident occurred at a point from three to five feet below the street crossing; had he waited a second or two, the car would have been completely stopped, and he could have entered it by the rear platform,' and if he had fallen off he would not have been run over; citing: Penn. R. Co. v. Aspell, 23 Pa. 147; Whart., Neg., § 369; Johnson v. Railroad Co., 70 Pa. 357; Phillips v. Railroad Co., 49 N. Y. 177; Little Schuylkill Nav. Co. v. Norton, 24 Pa. 465; Catawissa R. Co. v. Armstrong, 49 Pa. 186. Thereupon the plaintiff took this writ, assigning for error the refusal to take off the judgment of nonsuit.
119 Pa. 76Adams v. Kuehn (1888)
ERROR, TO THE COURT OF COMMON FLEAS OF LEHIGH COUNTY. No. 228 January Term 1887, Sup. Ct.; court below, No. 40 January Term 1886, C. P. On December 14, 1885, David Kuebn brought assumpsit against Samuel Adams, declaring in the amended narr. substantially that, Jacob and Milton Weaver, trading as Weaver Brothers, tobacconists, being indebted to the plaintiff in two several notes, dated on June 28, 1884, each for 1158.50, and payable at sixty and ninety days, respectively, on August 12, 1884, a discourse was had between Weaver Brothers and Samuel Adams, the defendant, wherein it was agreed that in consideration of a judgment obligation for 125,500 confessed by Weaver Brothers to said Adams, the latter would pay and satisfy the debt due and to come due from Weaver Brothers to the plaintiff; nevertheless the defendant had not paid the said indebtedness, etc. The plea was non assumpsit. At the trial on May 8, 1886, it was made to appear that on August 12,1884, Weaver Brothers, then insolvent, executed to Samuel Adams, the defendant, a judgment note for $25,500, on winch judgment was entered the next day, execution issued and the stock of Weaver Brothers sold at sheriff’s sale to Adams. The plaintiff proved the indebtedness of Weaver Brothers to himself, and called Jacob and Milton Weaver, who testified to the effect that the judgment note was given at the office of Mr. Adams in the presence of Mr. F. M. Trexler, a member of the bar, and the firm book accounts transferred the same day; that an assignment for the benefit of creditors was suggested, but Adams urged the firm to give him a judgment, suggesting the sum of $37,000, upon which to sell their stock at sheriff’s sale, when Mr. Trexler called his attention to the fact that he already held a judgment for $11,500 and he then said to make it $25,500; that the note for that amount was executed and delivered and the book accounts assigned upon the agreement of Adams that he would give the obligors $4,000 he had previously promised them, convey to them certain real estate and pay the claims of all their creditors so as to give them a “ free name ; ” that the terms of Adams’s contract were put in writing at his direction by Mr. Trexler, but that when Adams received the. note he went away promising to sign the contract the next day, but did not sign it at all; that after the sheriff’s sale the stock was put into the management of Mr. Trexler and certain claims against the firm were paid out of it. It was admitted that Mr. Adams was an indorser for the firm to a large amount. To meet the plaintiff’s case, both the defendant and Mr. Trexler testified in substance that the judgment obligation was given without any undertaking for the payment of Weaver Brothers’ creditors; that no engagement thereto was put in writing or so directed; that the liabilities of the firm to the defendant not including those covered by the prior note or judgment for $11,500, were ascertained at $29,000, and a credit considered reducing the amount for which the note was given to the sum of $25,500, and that certain of the other creditors who were subsequently paid by the defendant were paid after the sheriff’s sale in pursuance of a promise to Weaver Brothers made after the note was given, but not as legal obligations. The court, Albright, P. J. charged the jury and answered the defendant’s points, inter alia, as follows: The defendant. Samuel Adams, is not a party to the promissory notes for which the plaintiff seeks to recover. He did not sign them as maker, nor as indorser, and before the plaintiff can recover against Samuel Adams, he must prove a liability in law on Samuel Adams’s part to pay. The allegation is that Samuel Adams became liable to pay the claim of the plaintiff by reason of the promise, which it is alleged he made to the Weaver Brothers at the time they confessed a judgment to him, and that the promise was the inducing cause of giving the judgment...... Assuming that Adams was a creditor of the Weaver Brothers at the time, and that David Kuehn also was a creditor, the confession of the judgment due one day after date was an advantage to Samuel Adams. It enabled him at once, and without suit to obtain a judgment, which became a lien on the real estate of the Weaver Brothers, and it enabled him the day afterwards to issue execution and to seize all the goods and chattels, which they owned. It was an advantage which he obtained to the detriment of other creditors of the Weaver Brothers. If it is proved, gentlemen, that the promise to pay all the creditors, was the inducing cause of the confession of that judgment by the Weaver Brothers, and if Kuehn was at that time a creditor, he is entitled to recover. The promise bound Samuel Adams. It would not matter that the promise was not made directly to David Kuehn. If that promise was made, and he was a creditor, he could avail himself of that promise and enforce it by a suit; and if the promise set up by the plaintiff was not made, then the plaintiff cannot recover, no matter what the indebtedness of the Weaver Brothers to Adams may have been, whether it was the amount of the judgment, more or less. If that promise was made, and it was the consideration of confessing the judgment, then, as I said to you, Adams is bound by it, even although the judgment was given to him for no more than the Weaver Brothers owed him, and if he did not make the promise, David Kuehn cannot recover, although the judgment was for more than was owing. We cannot in this issue determine whether the judgment was for the amount Adams was liable for, and what the Weaver Brothers owed him, or for more or less. That cannot affect this issue. The main question in the case is whether the promise set up by. the plaintiff was made or not. . [Upon this question of the indebtedness of the Weavers to Adams considerable evidence has been introduced and has been commented upon extensively. On the part of Adams it was shown to rebut the idea that the promise was made and to show possibly the improbability of its being made, that the Weaver Brothers were indebted to him for the amount of this judgment and the amount of a judgment which had previously been given of $11,500, and much more; and on the part of the plaintiff, to meet that theory of the defendant, it has been attempted to be shown that the indebtedness to Adams was not that much, nothing like it. If that is true it helps you to determine as to whether this promise was made or not. You can use it as a circumstance for that purpose; excepting its bearing upon that question it has nothing to do with the case.]5 The Weaver Brothers (Jacob Weaver and Milton Weaver) have testified in substance that the promise was made. Jacob Weaver said that when they met at the office a judgment was spoken of; that it was said in substance that Adams wanted a judgment from them, and that there was some hesitancy on their part, or on the part of one of the brothers to confess the judgment. One of them spoke of an assignment for the benefit of creditors, and said he preferred that course, and Jacob says that he said under no consideration would they sign a judgment, because they did not owe him anything; that Mr. Trexler then said that the Weaver Brothers had a proposition to make, and that then he (Jacob) said “ that all the creditors must be paid,” and that it was then said by Mr. Adams that Mr. Trexler, who was sitting there and writing, should write it down, and I believe it was testified, and it is for you to remember what the testimony was, that Adams said “all right,” and then it was said the Weaver Brothers, or one of them, said that four certain creditors of theirs should be paid first: Wertman, Stevens, Rebecca Weaver and certain money which one of the Weavers had in hand of certain minor children. Milton Weaver testifying, said that the judgment was Spoken of, and that Mr. Adams wanted a judgment rather than an assignment for the benefit of creditors, and that his brother (meaning Jacob) then said that all the creditors must be paid; that Wertman, Stevens, Rebecca Weaver and the minor children’s money should be paid first, but that all the creditors had to be paid before they confessed a judgment; that when the judgment had been written he (Milton) said to his brother Jacob: “Shall I sign this death warrant?” and that then it was said: “ Yes, under those conditions you can sign,” and he signed it. This is denied by Mr. Adams totally. He says that there was no agreement to pay all the creditors ; that that was not demanded by the Weaver Brothers: that nothing was said. Mr. Trexler testified that nothing was said to that effect; that there was no understanding or promise to pay all the creditors, and that the Weaver Brothers did not ask it. Then it is alleged that you can find from the subsequent conduct of the parties interested, possibly from what they said, something which bears upon the question as to whether the promise was made or not. It is said that Mr. Adams’s subsequent conduct showed that he recognized the existence of a promise such as the plaintiff sets up. On the part of the defendant it is insisted that you can find from the conduct and possibly the declarations of the Weaver Brothers afterwards made, that there was no such promise; that they knew there was none. If there is any conduct of either of the parties or a subsequent declaration, which tends to throw light upon the question as to whether the contract was made before the judgment was signed, you will receive it and give it its due weight. But in order to be binding, the promise to pay the other creditors must have been made at the time that judgment was given, or immediately before, and it must appear that it was one of the conditions understood between the parties, that the other creditors should be paid; because if Mr. Adams had made a promise of that kind after he had the judgment, whether before or after the sheriff’s sale, then it could not be enforced. These instructions cover all the legal questions arising in the case. To repeat: We say to you that the confession of the judgment to Mr. Adams was an advantage to him, and if at the’same time there were other creditors of the Weaver Brothers, it was a detriment to them, and if the inducing cause to give the judgment, to confess it, was the promise of Adams, a demand made by the Weaver Brothers that the other creditors should be paid, and assented to by him, then if David Kuehn was at that time a creditor, he can recover; and if that promise was not a consideration moving the Weaver Brothers to confess the judgment, then the plaintiff cannot recover...... Defendant’s points: 1. There is no proof in the cause that the debt of the plaintiff was included in the judgment given by Weaver Brothers to Adams, and consequently, it was not burdened with any trust to pay the same amount out of the proceeds. Answer: Negatived. The plaintiff does not seek to recover on the theory set forth in this point. 2. The plaintiff having declared upon a contract specially, it is incumbent on him to support their averments by proof consistent therewith; proof of a contract to pay all the debts of Weaver Brothers will not support the averment contained in the declaration, and for that reason the verdict must be for the defendant. Answer; Negatived.4 3. There is no evidence in the cause that Adams agreed to assume and pay the debt of the plaintiff as the consideration for the giving of the judgment of August 12, 1884. Answer: Negatived.3 4. No privity of contract between the plaintiff and the defendant has been shown and consequently the plaintiff cannot recover. Answer:' Negatived.8 5. Under all of the evidence the verdict must be for the defendant. Answer: Negatived.1 The verdict of the jury was for the plaintiff for $348.31. A rule for a new trial was subsequently discharged, and judgment entered on the verdict. Thereupon the defendant took this writ, assigning for error, inter alia: 1-4. The answers to the defendant’s points.1 to 4 5. The part of the charge embraced in [ ]5
119 Pa. 87Appeal of Williams (1888)
FROM THE DECREE OE THE ORPHANS’ COURT OE MONTGOMERY COUNTY. No. 17 July Term 1887, Sup. Ct. On January 4, 1886, Joseph. T. Williams filed his account as guardian of seven minor children of Charles Williams, charging himself with receipts of cash from the executors of the will of Joseph Williams, Sr., deceased, aggregating $70,430.32, and taking credit inter alia with “commissions due accountant, $3,521.52.”- To this account exceptions were filed. Before Mr. Jacob V. G-otwalts, appointed auditor to hear and determine the exceptions and report distribution, it was made to appear that the minor children of Charles Williams were the residuary legatees in the will of Joseph Williams, Sr., deceased, and that at the instance of their father, who was an executor of said will, his nephew, Joseph T. Williams, was appointed their guardian, with whom the father then made the following agreement: This is to certify and declare, that Charles Williams has assumed and will assume the collection and receipt of all moneys that have accrued or which may accrue to his children under and by virtue of the last will and testament of their grandfather, Joseph Williams, deceased, and the investment of the same ; also the collection of the interest thereon; and that Joseph Williams, guardian of his said children, has deposited in his hands the securities in which the moneys of his said wards have been invested; and Charles is to keep him, the said guardian, clear of all liability or responsibility in relation to the trust funds belonging to the said children; and the said Joseph has also agreed that his executors or administrators shall not charge any commissions, except in the event of the decease of the said Charles, and the actual performance of the trust devolves on him or his representatives, then to be allowed to charge commissions on the funds which may at the time be in their trust; it is further agreed and distinctly understood that said representatives shall not charge under any plea or circumstances more than two per cent, commissions. Witness our hands and seals this 1st day of 4th month, 1864. Charles Williams, [l. s.] Joseph Williams, [l. s.] The residuary estate had been paid over in money except a , balance of $14,430.32, which was the purchase money for a farm conveyed by the executors to Joseph T. Williams, guardian. All the estate, including the item of $14,430.32, as cash, was charged to the guardian in his account; and although all the cash receipts had been managed and invested by Charles Williams, the guardian had rendered personal services to the estates of his wards, their character appearing hereafter in the opinion of this court. The children having arrived at full age, the father, representing that he had fully paid all the wards, desired that the farm should be conveyed to them by the guardian, which the latter refused until he had received compensation for his services as guardian and releases from his wards. The auditor, inter alia, reduced the commissions to be allowed to the accountant to $1,050, and recommended a decree that the guardian convey the farm held in his name on receipt of the proper releases from his late wards. Various exceptions were filed to the auditor’s report on the part of the guardian, and others by his wards. On hearing, the court, Boyer, P. J., sustained the exceptions on the part of the wards, disallowing all commissions or compensation to the accountant, and entered a decree ordering that the guardian, on payment or tender to him of certain costs and expenses he had paid, should execute and deliver a conveyance of the real estate held in his name for his late wards’ benefit, etc. The accountant then took this appeal, specifying that the court erred: 1. In not ruling that the agreement of April 1, 1864, was against public policy and void. 2, 3. In ruling that the said agreement debarred the accountant from the commissions claimed in the account. 4. In disallowing the sum of $1,050 recommended by the auditor as compensation to the accountant. 5. In decreeing in this proceeding a conveyance of the real estate held in the name of the accountant as guardian.
119 Pa. 91Croman v. Stull (1888)
EBBOR TO THE COUNT OE COMMON PLEAS OE BUCKS COUNTY,; No. 280 January Term 1887, Sup. Ct.; court below, No. 28 September Term 1886, C. P. About June 20,1886, Reuben S. Stull, administrator d. b. n. c. t. a. of David D. Diehl deceased, brought assumpsit against Henry R. Croman, John Croman and David T. Breisch, to recover upon a promissory note made by the defendants, dated April 5, 1877, at one year, for $500, to order of David D. Diehl.. The defendants severally pleaded, payment with leave, etc., and subsequently John Croman and David T. Breisch pleaded non assumpsit infra sex annos. At the trial on December 17, 1886, before Yerkes, P. J., the note was admitted in evidence with various credits on account of principal and interest appearing by indorsements and on a detached paper, running in dates from April 1, 1883, to April 1, 1885. These payments were made by Henry R. Croman. It then appeared that David D. Diehl had died in 1881, leaving a widow Sophia Diehl, to whom by his will duly probated he had bequeathed his entire estate. Mrs. Diehl took out letters testamentary, but did nothing further towards the settlement of her husband’s estate than to file an inventory thereof, when on June 9, 1885, she herself died, appointing Reuben S. Stull the executor of her will, which was duly probated. David T. Breisch, one of the defendants, was one of the appraisers in making the inventory of her estate. On June 19, 1886, Reuben S. Stull took out letters d. b. n. c. t. a., upon the estate of David D. Diehl, and then brought suit upon the note in question. So far as affecting the plaintiff in error in this court, the further proceedings were as follows: Reuben S. Stull, the plaintiff administrator, called on his own behalf, testified that the note in suit was found among the papers of Mrs. Diehl when her estate was appraised:— Mr. Watson: We will show that there was a promise to pay, followed by a subsequent grant of letters to the witness. Mr. Ross: We object to the admission of any evidence of a conversation on the part of Mr. Breisch relating to this note, for the purpose of showing an acknowledgment in the nature of a promise to pay, until it has appeared that the person to whom the remark was made was the representative of the estate of David D. Diehl, clothed with authority to collect the note, and that the promise was made to the person in that capacity. By the court: Objection overruled.1 - Q. When you found that note amongst the papers of Sophia Diehl what did you do with it? A. I took it.along; all the papers along, I think. Q. Was it appraised? A. It was appraised, yes. I thought it was all right. Q. And made a part of her inventory? A. Yes, sir. Q. Now you took the inventory to Mr. Breisch’s store ? A. Yes, sir. Q. And there you had a conversation with him about that note ? A. Yes, after the inventory was signed by him. Then he said, “I think that note must be paid now,” and I told him, “ Yes, I had to collect it.” By the court: Q. What were his words? A. That is as near as I can give it in English. We were talking in German. He said, “ I think that note must be paid now;” I told him, “ I had to collect it and I wanted the money.” Mr. Shellenberger: Q. What did he say in reply to that ? A. He asked, “ Must it be paid right away ? ” and I told him, “ Oh! no, I would give him time;” then he said, “ Henry Croman ought to pay that note,” and I said, “ Yes, if they do,” and then he wanted me, said that I should get the money from them fellows; “Well,” he said, “if I must, pay it, it is very hard for me;” he said, “In case they don’t pay it, let me know it, then I will pay it; I don’t want to have any trouble any further.” That was all that was said about that note that day. The will of David D. Diehl was then put in evidence, dated July 17,1865, admitted to probate May 2,1882, and letters thereon to Mrs. Sophia Diehl. The inventory in the estate of Sophia Diehl, deceased, dated July 30, 1885, was also put in evidence, embracing the note in suit as a part of her estate. David T. Breisch, a defendant, called in his own behalf, denied that he had promised Mr. Stull that he would pay the note, as testified to by the latter. The court, in the charge, submitted the facts to the jury and answered the points presented on the part of David T. Breisch, as follows: 1. Assuming that Breish stated to the plaintiff as follows: “If I must pay it, it is very hard for me; in case they (the Cromans) do not pay the money, let me know and then I will pay it; I don’t want to have any trouble; ” such language does not constitute a sufficient promise to take the case out of the statute of limitations. Answer: Refused. I refer you to the general charge as to whether these and the other facts in the case constitute such a promise as the law requires.* 2. A promise which is sufficient to toll the operation of the statute of limitations must be clear, distinct, and unequivocal, leaving no uncertainty as to the particular debt and without restrictions or conditions. Answer: This is true. 3. A promise to pay, in order to toll the statute of limitations, must be made to the creditor or his authorized representative. Answer : This is true. 4. In this case, the facts being admitted that when the conversation between the plaintiff and Breisch, one of the defendants named, occurred, the plaintiff was not the administrator d. b. n. c. t. a. of said David D. Diehl, the payee in the note, but was acting as the executor of Sophia Diehl, and represented her estate, no promise or acknowledgment made to him would constitute a waiver of the bar of the statute of limitations. Answer: With this point you will have nothing to do. The above facts are undisputed, and the court reserves the question of law arising thereon.3 5. The verdict of the jury, under the evidence and testimony in this case, must be in favor of the defendant, David T. Breisch. Answer: Refused. That is the question for you to determine.4 The jury returned a verdict in favor of the plaintiff and against defendants Henry R. Croman and David T. Breisch for $496.12, and the same day a rule was granted to show cause why judgment should not be entered in favor of defendant, David T. Breisch, non obstante veredicto. On January 24,1887, after argument of the foregoing motion, the court, Ybrkes, P. J., filed the following opinion: The fourth point submitted by counsel for David T. Breisch, one of the defendants named, and which the court was requested to answer in writing, is as follows, viz: “ In this case, the facts being admitted that when the conversation between the plaintiff and Breisch, one of the defendants named, occurred, the plaintiff was not the administrator d. b. n. c. t. a. of said David D. Diehl, the payee in the note, but was acting as the executor of Sophia Diehl, and represented her estate, no promise or acknowledgment made to him would constitute a waiver of the bar of the statute of limitations.” The point was not answered, but the question of law was reserved. The same question, (as to the effect of the conversation of the defendant, Breisch, with the executor of Sophia Diehl, deceased,) which the point was intended to raise, arose and was discussed upon objections to the admission of the evidence of Mr. Stull. The point was equivalent to a motion to withdraw from the jury the evidence of Mr. Stull, relating to the conversation with Mr. Breisch, and, if answered in the affirmative without qualification, would have been decisive of the case, there not being other evidence, standing alone, sufficient to sustain a verdict for plaintiff. In that case, the facts being undisputed, the point would be properly reserved, and, if true, judgment can now be entered for the defendant non obstante veredicto : Wilde v. Trainor, 59 Pa. 442; Koons v. W. U. Tel. Co., 102 Pa. 169; Ferguson v. Wright, 61 Pa. 258. By reserving the point and submitting the evidence, the court left the case go to the jury in all respects as if the point had been refused, and consequently the verdict for the plaintiff must stand, unless the point should have been affirmed and a verdict directed in favor of the defendant, Breisch. The point is defective, however, in that it omits to recite a material fact, on the subject of the competency of the evidence of Mr. Stull, and tending to show that, in his character of executor of Sophia Diehl, he was such a person as could receive a promise, or acknowledgment amounting to a promise to pay, from Mr. Breisch, such as would toll the running. of the statute. Therefore a refusal to affirm the point would not have been error: City of Altoona v. Lotz, 114 Pa. 238. Neither could the point have been answered without a reference to this fact and a consequent qualification. This material fact, inadvertently omitted from the point reserved, and which it was necessary to include in it, in order to require a direct answer and to make the question of law decisive of the case, is the bequest in the will of David D. Diehl, deceased. The will is as follows : “ I give and bequeath unto my beloved wife, Sophia, all my real and personal estate, &c.,....... together with all my outstanding money or claims of every kind, forever.” This bequest included the note in suit. The point admits that Mr. Stull was the executor of Sophia Diehl, and represented her estate when the conversation with Mr. Breisch occurred. When the evidence of Mr. Stull was admitted, the will of David D. Diehl had not been formally offered and received in evidence, but it was put in evidence before the close of plaintiff’s case. It appears to us, its effect was to attach to the evidence of Mr. Stull a greater scope than it before possessed. It showed that when the admissions were made to him by Mr. Breisch, he was not such a stranger that an acknowledgment or promise to him, otherwise sufficient to toll the running of the statute, would not be binding upon the debtor. By the will, the note in suit belonged to the estate of Sophia Diehl, of which Mr. Stull was then the executor, and although he might not sue upon it in that capacity, he was such an owner of the note that a promise to him would be binding upon Mr. Breisch, the debtor. Where, in a suit upon a note, commenced more than six years after the maturity of the note, it appeared that within the six years, and after the death of the wife, but before her husband had taken out letters of administration, the maker had acknowledged the debt to the husband, and had promised to pay the note, the Supreme Court held that the husband was not a stranger, but was the owner of the note in question, as part of his wife’s estate. He could therefore receive a promise to pay, or an acknowledgment consistent with such a promise. When he took out letters, he was competent to sue upon the claim thus acknowledged: Keely v. Wright, 5 W. N. 241. The principle involved is the same in both cases. Mr. Briesch, by making an inventory of the note in Sophia Diehl’s estate, while serving as a sworn appraiser, acknowledged her ownership of the note, and is estopped from now denying it. It is immaterial whether the point recites all the facts, applicable to the question sought. to be raised by it, because, taking all the facts upon the question, there is nothing in the evidence on which a point could have been reserved that would have warranted a judgment for the defendant non obstante veredicto. And the verdict, being in favor of the plaintiff, must stand: Clark v. Wilder, 25 Pa. 314. All the facts were submitted to the jury, under instructions which we deemed sufficient and correct, and we have nothing to do with them in this opinion. And now, January 24, 1887, it is ordered that judgment be entered on the verdict in favor of plaintiff, upon payment of . the verdict fee.5 Judgment having been entered upon the verdict, the defendant David T. Breisch took this writ, assigning as error: 1. The admission of plaintiff’s offer.1 2. The answer to the defendant’s first point.8 3. The answer to the defendant’s fourth point. 3 4. The answer to the defendant’s fifth point.4 5. The order directing judgment for the plaintiff.5
119 Pa. 100Appeal of Rawle (1888)
FROM THE DECREE OF THE ORPHANS’ COURT OF DELAWARE COUNTY. No. 133 January Term 1888, Sup. Ct. Held: James Rawle, in behalf of himself and his co-executors, applied to the court to stay the proceedings, upon the grounds that the right to divide the premises was vested in the executors and trustees under the will of Dr. Peace, and the petitioners had no interest or estate upon which they were entitled to a partition in the Orphans’…
119 Pa. 105Appeal of Biles (1888)
FROM THE DECREE OF THE ORPHANS’ COURT OF CHESTER COUNTY. No. 175 January Term 1888, Sup. Ct. On August 8,1887, upon the petition of Pamela J. Biles, Sarah F. Spencer, Amos T. Biles, Charles C. Biles and Annie M. Biles, children and heirs at law of Samuel Biles, deceased, of New London township, an inquest was awarded for the partition of the real estate of said deceased, a return thereof filed, and on October 31, 1887, the three purparts were severally decreed to the heirs interested accepting the same. In the decree allotting the purparts was the following: And the court do further tax the costs of this proceeding as follows, to wit: Sheriff’s fee for jury of inquest, $ 41.87. Fees of Clerk of Orphans’ Court, 16.15. George B. Johnson, attorney for petitioners, fees, 100,00. R. S. Waddell, attorney for John P. Biles, 75.00. And the court orders and decrees that the said costs shall be paid out of the valuation or purchase money of tract No. 3 of said real estate, as part of the purchase money thereof, and shall be borne equally by all the heirs, and their respective proportions of said costs shall be deducted from the amount of the bonds to them respectively and the costs paid in cash.1 By the Court. From this decree the petitioners took this appeal* specifying that the court erred in awarding to Mr. R. S. Waddell, attorney for John P. Biles, $75, and in ordering that the said sum should be paid out of the valuation or purchase money of tract No. 3, as in the foregoing order.1
119 Pa. 108Reinoehl v. Shirk (1888)
ERROR TO THE COURT OE COMMON PLEAS OF LEBANON COUNTY. No. 240 January Term 1888, Sup. Ct.; court below, No. 25 September Term 1887, C. P. On June 25, 1887, William S. Shirk and Mary S. Bodenhorn with her husband J. J. Bodenhorn, brought assumpsit against John Reinoehl. A case stated for the opinion of the court in the nature of a special verdict, was subsequently agreed upon by the parties, -which was as follows: That William Shirk, late of the city of Lebanon, county of Lebanon, Penna., died on or about April 24,1876, seized in his demesne as of fee of and in a certain house and lot of ground situate in the said city of Lebanon aforesaid, bounded and described as follows, to wit:.....having first made his last will and testament in writing, which said will was duly probated after the decease of the said William Shirk, to wit: on May 30,1876, and remains on record, in the office of the register of wills, etc., wherein and whereby, he did bequeath and devise the same unto the said William H. Shirk and Mary" Shirk, (now intermarried to Jerome Bodenhorn,) the plaint- ( iffs above named; said last will and testament, being hereby made a part of the case stated as if it were fully and entirely set out herein. That on April 5, 1887, the said William H. Shirk and Mary Shirk, intermarried with Jerome Bodenhorn,' (the said Jerome joining therein) entered into articles of agreement with John Reinoehl, the said defendant, for the sale of said house and lot of ground in said will mentioned, and above fully described, stipulating to grant, convey and assure unto the said defendant, said house and lot of ground, on or before April 9, 1887, which said agreement is also hereby made part of this case stated, and to be considered as though fully set out herein. That on April 9, 1887, the said plaintiffs, executed a deed for said premises and tendered the same to the said defendant, who refused to accept the same, and refused and still does refuse to pay the amount of the purchase money agreed upon in said articles of agreement, to wit: $5,000, alleging that the said plaintiffs could not convey a title in fee simple, for the said house and lot of ground. Tl^at Susan Shirk, who is mentioned in said last will and testament, died on May 30,1879, and that the divorced wife of Lorenzo Shirk is living. If the court be of the opinion that the said plaintiffs can convey and assure unto the said defendant, a title to said premises in fee simple, then judgment to be entered for the said plaintiff in the sum of $2,800 dollars, being the amount of said purchase money less incumbrances on said premises, but if the court be not of that opinion then judgment to be entered for the defendant, costs to follow judgment; either party reserving the right to sue out a writ of error therein. The provisions of the will of William Shirk, deceased, most frequently adverted to by the contending parties, are the following : Item. (1) I give and bequeath and devise unto William H. Shirk and' Mary Shirk, the children of my deceased son Lorenzo, and their lawful issue, all that certain [the premises described in said contract], subject, however, to the following uses, terms, conditions and limitations. The said premises shall be leased away by hereinafter named executors for the best and highest rent that can be obtained therefor during the lifetime of my daughter Susan. The rent to be derived therefrom, after paying taxes and the expenses incident to keeping up repairs, shall be paid annually to my said daughter Susan and during her lifetime and after her decease, and then and then only shall possession thereof be taken by my said two grandchildren, the children of my deceased son Lorenzo or their lawful issue, subject however to the limitations and restrictions hereinafter mentioned, they to take and hold the same as tenants in common, and for which, in the distribution of my estate, I order and direct that they be charged the sum of four thousand dollars. Item. (7) I further order and direct that in case either of my grandchildren, the children of my son Lorenzo, dec’d, shall die without leaving lawful issue, then and in that case, the share of the said child shall go to the survivor; and in case both of the said children should die without leaving lawful issue then it is my will and I order and direct that the real estate, hereinbefore devised to them as tenants in common, as well as the one fifth part of my residuary estate shall go and I hereby devise and bequeath the same to my four remaining children. The respective shares so acquired shall be held under and subject to the same uses, conditions, limitations and restrictions as the estates which I have hereinbefore devised and bequeathed to them respectively; it being my express will and I hereby order and direct that under no circumstances shall the late divorced wife of my deceased son Lorenzo have any part or portion of my estate and effects, whether real, personal or mixed. Other illustrative portions of this will are quoted in the opinion. On argument, the court, McPherson, J., filed the following opinion and decree: ■ This question seems to be ruled by Eichelberger v. Barnitz, 9 W. 447, and Lawrence v. Lawrence, 105 Pa. 335. We direct judgment to be entered in favor of the plaintiffs for twenty-eight hundred dollars. Judgment being entered, the defendant took this writ, assigning the said order as error.
119 Pa. 115Meurer v. Meurer (1888)
APPEALS FROM THE DECREES OF THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY. Nos. 396 January Term 1887 and 89 January Term 1888, Sup Ct.; No. 605 December Term 1883, C. P. No. 3. On January 11,1884, Charles Meurer filed a bill in equity against Edward F. I. Meurer, in which it was in substance averred: That the plaintiff was born on or about May 30, 1843, and was the son of Marie Henrietta Schmidt and Charles F. Meurer, who were married at the Hotel de Ville de Strasbourg on August 27,1844; and that the defendant was a son of said Marie H. Schmidt, but not of the said Charles F. Meurer, and was born on or about July 31,1839; that the said Charles F. Meurer, after his marriage, maintained and educated the defendant and treated him as one of his own family, and the plaintiff was brought up with the defendant and constantly regarded and believed him to be his elder brother, confiding in him as such; that the plaintiff was of weak mind, illiterate, unable to read and write anything except his name. That said Charles F. Meurer after his marriage removed with his family to Philadelphia, where he died intestate on March 20, 1875, seized of the premises at No. 1025 Walnut street, which were subject to a yearly ground-rent of $36, reserved by deed, and a certain mortgage debt of $2,000; that on March 22,1875, letters of administration upon the estate of the deceased were issued to the defendant, who in about a fortnight thereafter moved into said premises with his family; and that, though the defendant had filed his account as administrator, confirmed October 27, 1876, charging himself therein with the rents of said premises from the death of the deceased to May 1, 1876, the plaintiff, of the personal estate of said decedent, had received no portion whatever. That on August 12,1876, the defendant procured the signature of the plaintiff to a joint deed conveying said premises to one Gustav Vogt, the defendant’s brother-in-law, for an alleged consideration of $2,000 and subject to the said incumbrances, which deed recited inter alia the death of said Charles F. Meurer, intestate, leaving to survive him as sole heirs at law the plaintiff and defendant, to and in whom the said premises descended and vested; that on August 14,1876, a deed was executed by said Gustav Vogt conveying the said premises to the defendant for a like consideration of $2,000 and subject to said incumbrances ; and that said conveyances to and from said Gustav Vogt were wholly without consideration. That, when his said conveyance was executed, the plaintiff was without counsel and had no person to represeht him in the transaction; but the defendant was well aware of the confidence reposed in him by the plaintiff, and, fraudulently representing himself as a co-heir with the plaintiff, although on attaining Ms majority he had been informed that he was not a son of said Charles F. Meurer, and fraudulently representing, also, that the premises were worth but $6,000 though as the plaintiff was informed and believed they were worth more than $12,000, and taking advantage of the plaintiff’s incapacity, persuaded, induced and influenced him to execute said conveyance, without any consideration therefor except a mortgage upon the premises executed by the defendant to the plaintiff for the sum of $1,000, which mortgage, though recorded, had never been in the plaintiff’s possession, nor had he ever received any interest in money upon it. That for three years after his father’s death, the plaintiff had made his home with the defendant, during which time he had assisted him in Ms business of laying carpets, part of the time merely occupying a room in said premises, obtaining his meals elsewhere ; that, in September or October, 1881, the defendant alleging to the plaintiff that his board for the time he resided with him amounted to within $2 of the sum he was to receive on his mortgage, the plaintiff, relying upon the statements of the defendant, was induced by him to sign a receipt in satisfaction of said mortgage, in consideration that defendant would execute a receipt for the due-bill and a paper entitling the plaintiff to the amount of his mortgage on the defendant’s death, and that the defendant at the filing of the bill was and had been since the said transfer in possession of said premises, receiving the rents, income and profits thereof. The prayers of the bill were: (1) For a decree declaring that the deeds of convéyance referred to were void and that the defendant be required to deliver them to the plaintiff to be canceled: (2) That the plaintiff be decreed to be the sole and only heir at law of the said Charles F. Meurer; (8) for discovery, and (4) for an account. The defendant’s answer, in so far as the allegations of the bill were not admitted, averred: That the defendant was the son, not only of the said Marie H. Schmidt, but also of the said Charles F. Meurer, and he was not informed on attaining his majority that he was not the son of said deceased, and the plaintiff was not of such weak mind and intellect and so illiterate as to render him incompetent to transact business. That at the time of the death of said Charles F. Meurer it was believed he had died intestate, but since the settlement of his estate, by which settlement the estate was indebted to the defendant, a last will and testament of said deceased had been discovered and had been duly admitted to probate: ■ That the conveyances of the property on Walnut street were for good and valuable consideration ; the defendant was the owner of the same in fee, and, since he had purchased, he had made valuable improvements of which the plaintiff had knowledge, and had reduced the mortgage incumbrance there on from $4,000 to $2,000; that the confidence of the plaintiff in the defendant had never been violated, and defendant had made no fraudulent misrepresentations of any kind whatever, and the plaintiff at the time of the transaction Avas represented by an experienced and reputable conveyancer. That the mortgage executed to the plaintiff in consideration of his conveyance, was for $1,000, as the one half of $2,000, the plaintiff’s interest in the premises, and the bond and mortgage were to remain as an investment for the use and benefit of the plaintiff during his lifetime; that defendant had paid interest on said mortgage for which he held plaintiff’s receipts, and at the settlement between the plaintiff and defendant, the plaintiff gave the defendant his due bill for $1,248, and defendant signed a paper to the effect that said due-bill should not be used as a set-off against the mortgage during the lifetime of the plaintiff, and that at said settlement, which was in the presence of the conveyancer, everything was fully and carefully explained to the plaintiff, who was not induced by the defendant by any manner of solicitation, representation or influence to sign the due-bill, and the papers were put in the possession of the defendant at the special request of the defendant. The answer urged that inasmuch as a decree was sought declaring the deeds to and from the said Gustav Vogt to be void and canceled, without offering to place the defendant in statu quo before the execution thereof, the bill should be dismissed, etc. From the testimony per testes and taken upon commissions to Kehl and Ulm, Germany, reported by Mr. John II. Campbell, the examiner appointed, it appeared that Charles F. Meurer, the deceased, had first gone to Strasbourg in 1840 and there for the first time met Marie H. Schmidt, who was then an unmarried woman, but the mother of the defendant and one other child that afterwards died; that the plaintiff was another son by the said Charles F. Meurer, born in 1843, and the parents were married in 1844; that by official proceedings under the Act of Marriage, in accordance with the provisions of the Code Napoleon, Charles Meurer, the plaintiff was legitimated, but no mention was made in the records of Edward F. I. Schmidt, now called Meurer, the defendant. - That the parents of the plaintiff came to Philadelphia in 1852, the defendant remaining and continuing a member of the family, and in 1865, Mr. Meurer purchased the premises in dispute, at sheriff’s sale, for §6,000 subject to the ground-rent of §36; that both husband and wife died in 1875; that the defendant took out letters of administration, though having a will of Charles F. Meurer in his possession, and subsequently filed an account showing a balance due from the estate to himself; that a substituted account was afterwards filed, showing a balance due the estate, which had not been distributed; that the plaintiff was unable to read and write except his name, and was wholly ignorant of business, his sight and hearing were impaired and he was weak of mind; that, taking advantage of the plaintiff’s weakness and confidence, the defendant, by fraudulent representations, shown in detail, had procured the deed referred to for the plaintiff’s interest in the real estate in the manner alleged in the bill, for a mortgage on it for §1,000, afterwards obtaining from the plaintiff a due bill for §1,248, purporting to be for board and lodging, agreeing, however, that the due-bill should not be used as a set-off against the mortgage in the lifetime of the plaintiff. 1 On December 16,1885, upon hearing on bill, answer and testimony, the court, Ludlow, P. J., made a decree : 1. That the deeds from Charles Meurer, and Edward F. I. Meurer and wife, dated August 12,1876, to Gustav Vogt, and the deed fromVogt, dated August 14,1876, to Edward F. I. Meurer, conveying the premises No. 1025 Walnut, were null and void. 2. That Charles Meurer was the sole heir at law of Charles F. Meurer, deceased, and as such entitled to his estate, real and personal. 3. That Edward F. I. Meurer should forthwith vacate the premises, No. 1025 Walnut, and deliver possession thereof to Charles Meurer. 4. That the cause be referred to Mr. Campbell, as master, to state an account of the rents, income and profits received by the defendant and to report the facts relating thereto and the form of a decree.3 The next step in the cause was the presentation of a petition by Caroline E. Feigle, setting out that she was the sister of Charles F. Meurer, deceased, and the aunt of Charles Meurer, the plaintiff, who was ignorant, of weak intellect, defective sight and hearing and wholly unable to transact or conduct the ordin ary affairs of fife, facts already found in the cause, the foregoing proceedings being recited; that, whilst the hearing before the master in the stating of the account was proceeding, to wit, on February 25,1886, the said Edward F. I. Meurer, taking advantage of said Charles Meurer and preventing him from consulting his counsel or other advisers, procured from him a conveyance direct to himself of the Walnut street premises in consideration of a' mortgage thereon for $1,000, which deed and mortgage had been lodged for record in the office of the recorder of deeds; wherefore the said defendant was in contempt of the decree of the court, praying for an attachment of the defendant, and that the petitioner be permitted to join with the plaintiff in the proceedings as Ms next friend, and for further relief. Upon this petition a rule was granted upon the defendant to show cause why an attachment for contempt should not issue, to which rule the defendant made answer, in substance denying any and every allegation in the petition alleging that the defendant had committed any fraud upon the rights or interest of the plamtiff, but admitting that on February 25, 1886, he had obtained from the plaintiff a conveyance of the premises in dispute in consideration of $500 in cash and a mortgage for $1,000, and had also obtained from him a release from any and all cause or causes of action, etc., claims and demands etc., and of and from all rents, income, and profits that had arisen or might arise from the said premises and from any and all decree or decrees that had been or might be entered in the foregoing proceeding, etc., etc.; averring further that said settlement had been brought about at the solicitation of the plaintiff who was of sound mind, memory and discretion, of full age and wholly competent to transact business, a copy of said release being attached to the answer. On March 13, 1886, upon the foregoing petition and answer and the testimony submitted by the parties on the hearing thereof, the court, Gordon, J., ordered and decreed that the defendant, Edward F. I. Meurer, be enjoined from dealing or negotiating with the plaintiff, Charles Meurer, or any other person, respecting the title or possession of the premises No. 1025 Walnut street: “And it appearing to the court from the said petition and answer, and from the testimony submitted by the parties, and from the oral examination of the complainant upon the hearing had upon the said petition and answer, that the complainant, Charles Meurer, is, by reason- of mental weakness, incompetent to have the care and control of his property and estate, and unable to protect his rights and interests involved in the present proceeding,” the court appointed Leonard R. Fletcher, Esq., trustee, to take and hold possession of the said premises until the further order of the court, and ordered that the name of Caroline E. Feigle be entered upon the record a party complainant as the next friend of Charles Meurer. It was further ordered that the agreement, deed and mortgage relating to said premises, executed on February 25 and 26, 1886, be delivered up by the recorder into the custody of the court, and that an attachment forthwith issue against the defendant, who was thereby placed in custody, until he should surrender the premises in dispute to the said trustee appointed.1 On September 10, 1886, the master filed his report stating an account of the rents, issues and profits of the premises in dispute, finding that there was due from the defendant to the plaintiff the sum of $2,334.91, and recommending a decree for the payment thereof. To this report numerous exceptions were filed by the defendant. On the hearing on December 21,1886, the exceptions to the master’s report were dismissed, the report confirmed, and it was ordered, etc., Gobdon, J., that the defendant, Edward F. I. Meurer, pay to Caroline E. Feigle, next friend of the complainant Charles Meurer, the sum of $2,334.91.4 As a final movement in the court below, on December 28, 1886, Charles Meurer, the plaintiff, presented his petition reciting in substance all the foregoing proceedings and orders, and, representing that he was not consulted as to the filing of said petition by Caroline E. Feigle, and never authorized or directed that it should be presented; that he never requested, authorized or desired said petitioner to act as his next friend in said proceedings, but, on the contrary, he believed her to be unfriendly to himself and hostile to his wishes and interests; that it did not appear that either said petitioner or Leonard R. Fletcher, Esq., were ordered to give security for their faithful accounting for all property that might come into their hands; that he was not then and never was, by reason of mental weakness, incompetent to have the care and control of his property and estate, nor had he ever been found to be so by any inquisition issued to inquire into his lunacy, prayed the court to vacate and set aside the appointment of said trustee and of the said next friend, as in said decree of March 13,1886, set forth, and that an order be made restraining the defendant, Edward F. I. Meurer, from paying the said $2,334.91 to any other person than to himself. On J anuary 3,1887, the prayer of this petition was refused, and the petition dismissed.2 Then Charles Meurer took the appeal to No. 396 January Term 1887, assigning that the court erred: 1-6. In the several orders of the decree entered on March 13, 1886.1 7. In the order dismissing his petition of December 28, 1886, entered on J anuary 3, 1887.2 8. In proceeding further with the cause after the settlement made between the plaintiff and defendant on February 25, and 26, 1886. And Edward F. I. Meurer took the appeal to No. 89 January Term 1888, assigning that the court erred: 1-4. In the several orders of the decree entered on December 16,1885.3 5-6. In the several orders of the decree entered on March 18,1886.1 7. In dismissing the defendant’s exceptions to the master’s report, stating an account, and in confirming said report; and in the order that the defendant pay to the said Caroline E. Feigle as the next friend of the plaintiff the sum of IS,334.91, the amount found by the master, as in the decree entered December 21, 1886.4
119 Pa. 133McCay v. Clayton (1888)
ERROR. TO THE COURT OF COMMON PLEAS OF DELAWARE COUNTY. No. 65 January Term 1888, Sup. Ct.; court below, No. 94 June Term 188T, C. P. On May 11, 1887, an action of ejectment was brought by Thomas J. Clayton, and Sarah J., his wife, in right of said wife, William McCay and George L. McCay, against John B. McCay, Jr., and Emma McCay, to recover the undivided three fifths of certain lands late of the estate of John B. McCay, deceased. At the trial on June 28, 1887, before Futhey, P. J., of the 15th district, holding special term : It was admitted that both parties claimed title from John B. McCay, deceased, who. died seized of the lands in dispute on February 23, 1885, leaving as his heirs at law the several parties plaintiffs and defendants; that the plaintiffs claim as three of said heirs at law and the defendants held the entire possession of said lands. The defendants then put in evidence the will of John B. McCay, deceased, dated February 7, 1885, in which will the testator devised to his daughter, Emma McCay, a tract of 131 acres, more or less, part of the land in dispute, during her natural life,.....“ and at the decease of my said daughter, Emma McCay, I give and bequeath the said premises, bequeathed to her for life,' to her children that she may then have, share and share alike, and if any of her children should die before their mother, leaving issue, such issue to take the share that his, her or their parent would take if living.” The said will contained a devise for life of other lands, also forming part of the lands in dispute, to the testator’s son, John B. McCay, with a devise over at his death in provisions like to those in the foregoing devise. John B. and Emma McCay were unmarried and without issue. The plaintiffs then showed that upon the death of John B. McCay, deceased, William and George L., two of his sons, had filed with the register a caveat against the probate of said testamentary paper; that after hearing before the register, the paper was admitted to probate, and on appeal by the contestants to the Orphans’ Court, an issue devisavit vel non was directed to the Court of Common Pleas, in which issue all the parties in interest and in being were made parties; that, this issue coming on to be tried, there was a verdict in favor of the contestants, whereupon, return having been made to the precept, to the Court of Common Pleas, the Orphans’ Court, on June 7,1887, entered an order directing that the said appeal be sustained and that the admission to probate of the said testamentary paper by the register be annulled, set aside and reversed, and that the order be certified to the register and be entered upon his record of the proceedings. After evidence of the foregoing facts, the plaintiff presented certain points which with their answers were as follows: 1. The probate of the will by the register was a judicial act, and the reversal of his decree by the Orphans’ Court, after appeal and proceedings on an issue devisavit vel non, is as conclusive as to the validity of said will as said decree would have been if the said contest had resulted in favor of the validity of said will. Answer: That point is affirmed. 2. The will of John B. McCay having been set aside by a verdict in a proceeding devisavit vel non and judgment entered thereon, it is conclusive, so far as this action is concerned. Answer: That point is affirmed.1 3. Under the evidence the verdict should be for the plaintiffs for three undivided fifths of the lands in controversy. ,, Answer: That point is affirmed.3 So answering the plaintiffs’ points, the court instructed the jury that the plaintiffs were entitled to recover and that the verdict would be in favor of the plaintiffs for three fifths of the lands in controversy. The jury returned a verdict for the plaintiffs. A rule for a new trial having been discharged, judgment was entered upon the verdict, when the defendants toot this writ, assigning that the court erred: 1. In affirming the plaintiffs’ second point.1 2. In affirming the plaintiffs’, third point.3 3. In not moulding the verdict so as to protect the contingent interests of any unborn children of the defendant.
119 Pa. 139Trego v. Pierce (1888)
EBBOB. TO THE COUBT OE COMMON PLEAS OE CHESTEB COUNTY. No. 248 January Term 1887, Sup. Ct.; court below, No. 124 January Term 1886, C. P. The cause in the court below was an appeal by the plaintiff from the judgment of a justice of the peace in an action by Hannah 'M. Trego against Joshua N. Pierce, to recover contribution to the cost of a division fence between the lots of the respective parties. The facts sufficiently appear from the charge of the court, Futhey, P. J., at the trial on November 10, 1886, which was as follows: The parties to this action, Hannah M. Trego and Joshua N. Pierce, are the owners of adjoining properties, separated by a fence, in the borough of West Chester, fronting on High street and running back two hundred feet to an alley. The plaintiff recently improved her property, by tearing down the old houses and building new houses. She also erected a new fence between the properties, extending about half the distance back to the alley, and called upon the fence viewers, the auditors of the borough of West Chester, to view the half of the fence extending to the alley from where the fence thus erected terminated..... The notice to the auditors was given in accordance with an act of assembly passed in 1842, P. L. 62, which provides that the fence viewers may be called upon to view any line fence between adjoining owners and make report thereon. The act of assembly originally made this the duty of township auditors, but by a supplemental act of March 8, 1847, P. L. 200, it was extended to borough auditors..... In pursuance of the request of the plaintiff, the fence viewers examined the fence in controversy, the defendant having been notified to be present, and made the following report:— The undersigned auditors and fence viewers of the borough of West Chester, having viewed the fence between the adjoining properties of Hannah M. Trego and Joshua N. Pierce, situate on South High street, in said borough, find that about one half of the boundary fence, in the neighborhood of 100 feet, has recently been erected by Hannah M. Trego of new material; that the remaining portion of the fence, which is likewise about 100 feet in length, is insufficient in their judgment as a yard inclosure; and that they agree that it is the place of Joshua N. Pierce to erect in its stead a suitable fence, upon which they estimate the cost of $85. The fence viewers thus found insufficient the portion of the fence in controversy, and that it was the duty of the defendant to build a suitable fence..... It was therefore the duty of Mr. Pierce, under the report of the viewers, to repair the fence and put it in proper condition. Mjr. Pierce alleges that, upon the report of the viewers, he proceeded to put the fence in proper condition; that he made it a good, substantial fence, and suitable to the purpose for which it was required. [If the fence, as repaired by the defendant, was a good and substantial fence, that is all the fence law requires. The law does not require that a tight board fence shall be erected. If the party who calls out the fence viewers desires a fence erected by his neighbor upon a portion of the line better or different from that which it occupies, and of a different character, he must erect it at his own expense. He can only require his neighbor, whose duty it is to repair and keep in order part of a line fence, to build or maintain a good, substantial fence. It may be built of rails, boards, slats, boards running lengthwise, or palings. It is immaterial how it is built, so that it is a good and substantial fence between the parties.] 10 If the defendant, upon the report of the viewers, put the fence in proper condition, and made it a good, substantial fence, then he complied with the law, and the plaintiff who owned the other half of the fence and called out the fence viewers, could have no further remedy. Even though the fence may not have been as fanciful as the plaintiff desired, the defendant would have performed his duty, and the plaintiff would not be at liberty to charge him with the cost of a fence of a different character than that which he erected..... This brings you to the consideration of another point which has been raised in this case. The character of fence referred to by the act of assembly is the boundary fence between owners ; that is, where two parties own improved lands adjacent to each other, and the boundary fence between them is a common fence. If this fence in controversy had been put where the old fence was, this question would not have arisen. There would then have been simply the two questions, whether the fence as repaired by Mr. Pierce was sufficient; and, if not, the right of the plaintiff to put it in proper condition with reasonable cost. It appears, however, that the new fence was not erected by the plaintiff where the old fence stood. The testimony upon this point, which seems to be undisputed, is that at the alley where the fence terminated, the fence was some distance from the old fence. The witnesses do not agree precisely as to the distance, but it seems probable that it was from six inches, half way along the boundary between High street and the alley, to eighteen inches at the alley, further north than where the old fence was. The witnesses speak of the old post holes being on the south side of where the new fence was, and that they were visible there after the new fence was erected, thus showing that the new fence had been erected by the plaintiff, on that part of the lot at least, north of where the old fence was. If the new fence was erected upon the boundary line between the parties, even although it was not on the site of the old fence, the plaintiff would be entitled to recover. She had a right to erect the fence upon what was the actual or legal line between herself and the defendant. The question is whether she erected it upon the boundary line. [What is the evidence that the new fence was erected on the boundary between these parties? There is testimony that a surveyor, engaged presumably by the plaintiff in this case, examined the ground and made a mark to which the fence was built; but he was not called as a witness, and there is no evidence as to whether the mark made by him was the line between the parties.]14 In tbe absence of any evidence showing that the new * fence was erected on the actual line, you must examine the evidence as to the monuments and boundaries, for the purpose of ascertaining where the line was. It is in testimony thqt the old fence and its predecessors had remained on that site for a very long series of years. In the absence of anything to the contrary, the law presumes that a fence of long standing between parties marks the line between their properties, and is to be taken as the line whether called for in their deeds or not. If the parties have lived up to and recognized a fence upon the ground as the boundary fence between their respective properties, in the absence of anything showing the contrary, that fence must be taken as the boundary fence between the parties. If you find, as the testimony seems to indicate, that this old fence had been there for a long series of years, twenty-one years and upwards, each living up to that fence uninterruptedly, each having adverse possession of his or her own side of that fence, then the fence, so far as this case is concerned, would mark the.line between these parties; and if the plaintiff built her fence on other ground than on the boundary thus marked, she built it where she had no right to build it. In a case of this kind the line between the parties is not determined, as that question is settled in another proceeding,; but where the fence has been erected on different ground than where the old fence was built, it is necessary to determine whether there is any evidence showing that the party had a right to erect the fence upon different ground. [I see no evidence in this case to warrant the jury in coming to the conclusion that the boundary between these parties was other than that which was marked by the fence that stood there for a long period of time],16 certainly, according to the testimony, exceeding twenty-one years. It is contended by the plaintiff, however; that the defendant recognized the ground on which the fence was erected as the line between their properties. Even although a fence may have stood at one place for a long • series of years, there is nothing to prevent parties from agreeing that the line is in a different place, or that it shall be established at a different place from that indicated by the monuments on the ground. It is said that the plaintiff erected the first half of the fence next to High street, that Mr. Pierce was there at least part of * the time, when the surveyor was there, and made no objection to it. But is that fact sufficient to hold Mr. Pierce to such a new line, or to a line different from that which was upon the ground as the line between the parties? If a surveyor is called, and it is agreed that the line, he surveys shall be the line between the parties, then they are bound by his survey. [Is it the fact in this case, that a surveyor came there, at the instance of Miss Trego, and that Mr. Pierce happened to be there a part of the time, without making any measurements, examining deeds, or lines, and without having the time necessary to consent to a line different from that which would seem to be indicated by the marks upon the ground, and thus become bound by the establishment of the line. That is the question for your determination, but I submit that the facts in the case hardly warrant the conclusion that Mr. Pierce deliberately agreed that the place where this fence was subsequently erected by Miss Trego should be considered as the boundary line between the parties.]15..... I do not refer to the little mistakes that are likely to be made in erecting a fence, a trifling variance one way or the other. In this case, there is a marked difference between where the fence is erected and where it formerly stood, and it is so marked as to leave no room for any question but that it was a departure from where it had been. Indeed, there is no dispute that it was erected upon this ground in pursuance of some information which had been given, it is said, by Mr. Lightfoot, who has not been, however, called as a witness in the case. [If the defendant did not agree upon the ground where the new fence was erected as the boundary line between the parties, then the old fence marked the boundary between the properties, and the plaintiff, cannot recover in this action, even although the fence might not have been properly repaired by the defendant, and she might have had a right to erect it and charge the defendant with its cost, if she chose to vary the fence and not put it where it had been formerly erected.] 11 She would not only be a trespasser, but would be seeking to make the defendant pay for putting a fence upon his ground. These are the points this case presents, and which I have endeavored to explain to you. Cases of this character are very rare in courts of justice, and therefore the subject is not familiar to juries, nor probably to lawyers. I have therefore endeavored to explain the matter more at length than I would have otherwise deemed necessary. [The points that arise in the case, are, first, whether the defendant repaired his fence, and put it in such condition as I have described. If he did, the plaintiff cannot recover. If, however, the defendant neglected to put it in proper condition after the report of the viewers, the plaintiff had a right to repair or' rebuild the fence, as the jury may find necessary, and charge the defendant with the cost of it, provided she built the fence where it was before. As a matter of fact, she built the' fence on a different site, and her right to build it there depends upon whether that was the line between the parties.] 13 [I instruct you that there is no evidence showing the new site was the actual line between the parties, so far as any survey or any marks upon the ground are concerned. The presumption would be that where the fence stood before for a long series of years, was the boundary line between the parties. The plaintiff had no right to erect the fence somewhere else, unless the defendant agreed that that should be the line between them. If the jury find it was not thus agreed, that, although the defendant may have been there a part of the time the surveyor was there, and may have seen this fence at the other end, yet did not agree that the line was different from where it was marked by the monuments upon the ground, the line would be where the old fence ran, and the fence not being erected on that line, the plaintiff cannot recover.] 13 I have been requested by the plaintiff to instruct you upon the following points: 1. If the plaintiff endeavored to put the fence in question on what she had reason to believe was the boundary line, the fence was put at the proper place for the purpose of this trial. The question as to where the line actually is, is not for the jury to determine. Answer: I have already answered this point in the charge, and do not think I can make the law any clearer.7 2. If the jury believe the evidence, that the east, half of the fence, beginning on High street, erected by the plaintiff as her part of the fence, was erected to a division line without objection by the defendant, the plaintiff was justified in using that as the division line by which, when extended, to erect the other half of the division fence. 3. If the jury believe that the surveyor marked the division line without objection by the defendant to which the fence was erected, it was proper for the plaintiff to use that as the division line. Answer: I have answered these points by what I have said in reference to the testimony as to any agreement between the parties, and do not think it necessary to give you further instructions.8 The verdict of the jury was for the defendant. Judgment being entered, the plaintiff took tins writ, assigning for error inter alia: 7-8. The answers to the plaintiff’s points.7 8 10-16. The parts of the charge embraced in [ ]101010
119 Pa. 149Iron-Ship Building Works v. Nuttall (1888)
ERROR TO THE COURT OF COMMON PLEAS OF DELAWARE COUNTY. No. 169 January Term 1887, Sup. Ct.; court below, No. 72 .June Term, 1885, C. P. On April 24, 1885, David T. Nuttall brought an action in case for negligence against the Delaware River Iron-Ship Building & Engine Works, to recover damages for personal injuries received. At the trial on September 27, 1886, the facts appeared, in substance, that the plaintiff, who for some time had been employed as a carpenter or bench hand in the.defendant company’s shop, in order to expedite the getting out of a lot of berth-fronts, the material for which was to be cut up with a circular saw, was instructed to assist in the work by removing the material from the left side to the right of the machine, so as to be within easy reach of the sawyer, and, while passing behind the saw in this occupation, a loose piece of wood was caught in the teeth and, thrown backwards, struck the plaintiff in the eye, causing a total loss thereof. Evidence was introduced on the part of the plaintiff from which it was contended that the great danger connected with the circular saw in use, was its liability to catch loose pieces of wood and to hurl them with great velocity; that a “ guard,” as it was called in the testimony, materially lessened this danger by spreading and holding apart wood that is being sawed, and preventing loose strips from getting against the teeth on the back side; and that there was negligence on the part of the defendant company in not using such a “guard” with its saw and in giving the plaintiff no warning of the danger. The court, Clayton, J., charged the jury in part as follows: It is a proposition of law that the owner or employer must furnish tools and machinery reasonably safe and adequate for the purpose of performing the work required of them. He is not required to adopt every new idea of safety; he is not even required to adopt the very best and safest machinery, for that would break up almost every establishment in the country. Everywhere new improvements are constantly being made; new safeguards invented. When they become generally used, when they are generally adopted, then it is the duty of the employer to use them; but until the adoption of the machine becomes common, until the new safeguards become general, until they are in general use to a certain extent, so general as to convey notice to the man using such a machine, they are not required to adopt every new safeguard. Now, you will apply the evidence in the case to these principles of law. Remember, that while the law requires an employer to furnish machinery reasonably safe and adequate for the work to be performed, the law does not require him to adopt every supposed safeguard; it does not require him to employ the safest machinery or the best. If the law were so unreasonable as to require that, one half of the mills would shut up, because the old machinery has not the improvements that are upon the new. I therefore say to you, that if you find from the evidence that this saw was reasonably safe and adequate for the work it had to do, considering the work it had to do; that is, if it was the kind of saw that was generally used in large establishments in this country, then the plaintiff cannot recover. He took the risk of his employment when he went into that establishment; his right to recover depends upon a very narrow and delicate point, which I will presently state to you, which, if you find it in his favor, will entitle him to recover..... But now we come, perhaps, to the point on which he may recover. He tells you he is a carpenter; that he went to this yard to find employment; that he was asked what he could do, and that he told the foreman what he could do. He says he was asked if he could work at the bench, and that he said he was not a first-class bench hand, but that he could work at the bench. He was then told to bring his chest and tools the next day and go to work. Nothing was said about sawing. Sawing appears to be a specialty in itself. He says that his understanding was that work at the bench was what he was to do; and, that if he had been asked if he could saw, he would have said, at once, that he had never done any work of that kind. He says that he worked around the shop at the bench for a considerable time, and that he never particularly noticed the saw; that he was directed, upon a certain occasion, to report to Mr. Mattis; he did so, and Mr. Mattis told him the work he had to do was around the saw, and he went and did the work. Now, while he was engaged in performing that work according to orders, he was injured. If you find that he had not yet noticed the saw, and that he reasonably thought it had a guard on it; then, if you also find that the employment he was engaged in doing was not his original employment, then still, undertaking to do the work around the saw, after he had seen it, was a new employment, so far as it went; and, having undertaken to do that work, without objection, he took upon himself all the risks of the work, unless there was some defect in the saw, or unless it was not adequately protected for the work he had to do. But, if he noticed and examined the saw and perceived the danger, and still undertook to do the work, then he could not-recover. But if he did not have an opportunity to see the saw, or if he did notice it and saw that it had no guard on it and then refused to go on, he could recover. Do you understand? [I say, if, when the plaintiff went to work around that'saw, he had reason to suppose it had the guard on it, and that he was incurring no danger in working behind it, then, if the machine was not properly , protected so as to guard him against that kind of injury, then, perhaps, he may recover; but, if you find that he knew the kind of machine that it was, if you find that he saw it and understood the danger before he undertook the work, and that he was not employed generally, to do work in the shop, but that he was employed as a bench hand, and that this was a new order which he obeyed under the mistaken notion that there was no danger in it, he can, perhaps, recover. And that is the only possible ground upon which he can recover. There is no other theory that can be adopted in the case that will entitle him to recover in this case, than the one I have stated. In order that you may not misunderstand me, let me repeat it again. It will be necessary for you to find that he was not employed as a general hand, but that he was employed to only work at the bench; you must find that, first, before you can bring in a verdict in his favor. He cannot recover, unless you find that. If you find that in his favor, you must then find that this was a special employment to work around the saw; and, if you find that he did not have an opportunity to notice the saw so as to know the danger he was in, and that he was not aware that it had no guard upon it, then, I say, he may possibly recover. But, if he had an opportunity to see the danger, to know that when he was passing by the saw he was liable to be struck, or if he ought to have known that, he cannot recover; and it is only upon the principle that the employer did not furnish a. reasonably safe machine for him to work around that he has any case.]1 It was reasonably safe for the employer, and it was reasonably safe for the man that was working upon it, but the question is, was it reasonably safe for a man who was not employed to work on it but around it; and, if you find from the testimony, that this man was not employed to do general work in the shop, but only to work at tbe bench, and that this was a special employment, and he was not properly informed of the danger he was incurring, that is some evidence of wrongful conduct upon the part of the defendants, the employers..... You will remember the notion upon the part of the plaintiff, that he was employed as a bench hand, and not to do general work around the shop; that he was specially directed to do the work around the saw, of which he knew nothing. He was not informed of the danger of the implement. He alleges that the saw had not upon it the guards necessary to protect him. I have said all I care to say upon that subject; I do ’not think there is much in it. While that guard is, undoubtedly, a protection, I cannot see that the law requires them to use it; unless it is used generally in the business they were not bound to use it. There may be something in it, but it is, undoubtedly, not entitled to as much weight as the plaintiff seems to think. There are a great many inconveniences connected with that guard. According to the testimony, you cannot make curves as easy with it as without. You have to adjust it and readjust it whenever you change the saws. The saws are of different thicknesses and grades; and, according to the evidence, it is not usual to use guards in large sawing establishments, that they are not in general use. Now, if notice had been brought home to the defendants here, if this plaintiff had refused to work around that machine without the guard on it, then he would be in condition to recover had they insisted upon his working there. But there is no evidence that the establishment had any notice, at all, of this little invention, because it does not appear to be generally used, and in some shops where it has been tried its use has been abandoned. I say to you, therefore, that while you may consider the absence of the guard, it is not as important as the plaintiff seems to think it is..... Circular saws are known to be dangerous, particularly by men who work around them; and you have the fact that this ,■ is the second accident that has ever happened..... The plaintiff’s points [inter alia] : 3. If the jury believe that a circular saw operated as this one is, is a dangerous machine, ifc was the duty of the defendant to adopt such precautions as might reasonably prevent damage or injury to his employees; and, if the jury find that the defendant did' not adopt and maintain such precautions, the defendant was negligent, and the plaintiff is entitled to recover. Answer: “Dangerous machine,” — There is no doubt about that. I affirm that. I have given you the illustration of the man who sends a professional blaster to dig his well, and the one who sends an unskilled farm hand or a boy to do it. If he sends an unskilled farm boy to do it, he must look out. He must inform him of the danger and have guards to protect him. If he is a skilful man, he is not bound to do it. So, as to the defendants here. If their men were employed to do general work in the shop, here, and it is hardly necessary for me to repeat that again, and this man did not know the dangerous position in which he was placed, then he ought to have been informed. That is the only point, as I have stated several times before, upon which he can recover.4 4. If the jury find that the defendant did not keep and maintain this saw in such condition as to be reasonably and sufficiently safe, even if the carelessness of a co-employee contributed to the injury, yet, the defendant being negligent, the plaintiff is entitled to recover. Answer: As a proposition of law that is affirmed.5 6. If the jury believe that the plaintiff was employed as a bench hand and that the work at this saw was out of the usual course of his duties, and that upon the morning of the injury he was under the orders and control of Ross and Mattis, and the injury was the result of the negligence of Ross or Mattis in ordering him to work at this place, the plaintiff is entitled to recover. Answer: “Course of his duties.” That is the point upon which I have already expressed my opinion. This is rather a complicated point and requires a very careful answer. If you find that the plaintiff was employed to do general work in the shop and understood that, then this point is not applicable to the case. If you find that he was not, then, as I before stated, if he was directed to do some work with which he was not acquainted, and undertook to do it, he was entitled to be fully informed of tbe danger. It is just what I have stated to you several times; and if he was not informed of the danger, and did not undertake to do that kind of work, then he can recover. I cannot see that the negligence of Mr. Ross or Mattis has anything to do with the ease if you find he was not employed to do that work, because it was Mr. Ross who employed him; he was the foreman, and, virtually, if he was not employed to do general work, then, when he was directed to do this work, as I said before, that would be a new employment, and if lie undertook to do it without objection, the presumption is that he knew the work he was undertaking to do and the danger he incurred. If he objected, then he would be in a good condition — still he was entitled to have reasonable information of the work he was to do, if you find he was not acquainted with the work and did not know what the danger was.6 The defendant’s points [inter alia]: 11. If the jury believe that the plaintiff in his work in and about the machine, failed to act with due prudence and care in approaching or passing back of the said machine, then he was guilty of contributory negligence and cannot recover. Answer: There is no evidence that he did show a want of care that I remember. He did what he was asked to do. He carried the wood where he was asked to carry it. Of course he must keep his eyes open in working around a dangerous machine. He ought to be on his guard; and if you find he was not, he cannot recover, no matter how negligent the other side was. I see no evidence of it in this case, but that is for you. If you find it, I leave it for you to say. I do not think the question of contributory negligence arises in the case, and I do not remember any evidence of contributory negligence in the plaintiff. He carried the wood just where he was told to go; he had to go just where he went; and it is not to be supposed he knew just where the stick was going to fly, so that he could dodge it.8 18. On the whole case, the verdict should be for the defendant. Answer: I decline to so charge you. I leave that to you. It is for you to say under the law as laid down by the. court, whether he is entitled to recover or what he is entitled to recover. That is entirely for you; I leave it entirely to your good judgment and good common sense.3 The verdict of the jury was in favor of the plaintiff for $1,800, and judgment being entered thereon, the defendant took this writ, assigning for error: 1. The part of the charge embraced in [ ]4 2-3. The answers to the defendant’s points.83 4-6. The answers to the plaintiff’s points.4 40 6
119 Pa. 159Appeal of County of Delaware (1888)
No. 31 July Term 1887, Sup. Ct.; court below, No. 1 De-cember Term 1884, C. P. in equity.
119 Pa. 171Barrett v. Nealon (1888)
ERROR TO THE COURT OF COMMON PLEAS OE LACKAWANNA COUNTY. No. 39 January Term 1888,. Sup. Ct.; court below, No. 14 April Term 1885, C. P. The cause below was an action of ejectment brought on June 15,1885, by Mary Barrett against Stephen Nealon and Michael Loftus, to recover a lot of land in Carbondale, known as the Brewery lot. At the trial on April 14,1887, it was admitted that John Nealon had title to the land in dispute on and prior to October 28, 1878. The plaintiff showed title in herself by sheriff’s deed to her for all the right, title and interest of John Nealon in and to the land described- in the writ, dated April 10,1884, acknowledged same day and recorded. The sale by the sheriff had been made on April 5,1884, by virtue of a writ of fieri' facias issued upon a judgment at No. 417 October Term 1880, entered on July 30, 1880, in favor of Thomas F. Walsh, upon a note with warrant of attorney dated July 26,1880, for $475. The defendants claimed title by a sheriff’s deed to them, for all the right, title and interest of John Nealon in the land in dispute, dated January 17, 1883, acknowledged January 18, 1883, and recorded. This sale by the sheriff had been made on December 23, 1882, by virtue of a writ of fieri facias issued upon a judgment at No. 486 January Term 1883, entered in favor of Stephen Nealon and Michael Loftus upon a bond with warrant of attorney given by John Nealon to Stephen Nealon and Michael Loftus in $20,000, conditioned for the payment of $10,000, dated October 29,1878, and payable November 1,1878. Said bond was secured by two mortgages, one embracing all the real estate of the mortgagor in Lackawanna county, and the other all his real estate in Luzerne county. As evidence affecting the title of the defendants upon the ground of fraud in the confession of the judgment upon which the sheriff’s sale had been made to them, it was made to appear that on October 29, 1878, the date of the bond and mortgages, John Nealon was indebted between $11,000 and $13,000. For between $6,000 to $7,000 of this indebtedness he was liable as an indorser to L. G. Turner and Samuel Raynor. To Stephen Nealon he owed $2,000, evidenced by a due bill dated July 3, 1877, and to Michael Loftus $1,000, evidenced by a due bill dated December 26, 1876. He was also indebted to Thomas F. Walsh, in $475 merged in the judgment upon which the sheriff’s sale to the plaintiff was made, which indebtedness was for the wages of labor. When the said bond and mortgages were executed to Stephen Nealon and Michael Loftus, John Nealon desired to obtain from them the further sum of $4,000, with which to improve his brewery and other property. Of this sum he afterwards received $3,500 from them. Other testimony was adduced by the plaintiff in substance as follows : John Nealon testified that a few days before the bond and mortgages were given he talked upon the subject with Stephen Nealon, stating that he wanted protection from the two indorsements : “ I had not any money from the parties and I didn’t feel like paying it and I went and give him or give Loftus and Stephen Nealon a bond and mortgage for $10,000 to protect me from those creditors. He said he would go and get the mortgage, and had it written; he brought it to me in shape and T signed it......There was a sale to come off; they were to protect me, by taking enough of the property, disposing of enough of it to pay themselves, and the balance convey it to some person, my friends or myself, for my benefit.” On cross-examination by the defendants, the witness said the obligations were not given to defraud his “honest” creditors,and that Walsh was one of lfis “honest” creditors. P. M. Moffitt testified, inter alia, as to a conversation with Michael Loftus about the time the bond and mortgages were given, in which Loftus related to witness the details of Neal-on’s indebtedness, and that when he gave them the bond and mortgages, Nealon said, “ Now, Sam Raynor can go whistle for his.” Mr. John T. Lenahan, the attorney for John Nealon when the fieri facias was issued upon the judgment of Nealon and Loftus, was about to apply to the court to stay the writ on the ground that it was for more money than was justly due upon the judgment, when Loftus assured his client that they understood the agreement with John Nealon and would adhere to it. There were other facts and circumstances put in evidence, tending to show that the bond and mortgages executed by John Nealon to Stephen Nealon and Michael Loftus were given to hinder, delay and defraud the two creditors who held John Nealon’s indorsements. At the close of the testimony the plaintiff submitted twelve points for instructions, certain of which were as follows : 1. That if the jury find from the evidence that the two mortgages given by John Nealon to the defendants were for a larger amount than was due from him, and that they were given and received for the purpose of delaying or hindering the creditors of John Nealon, then no sale made of the property of Nealon upon any judgment on such mortgages or the bond accompanying them would give no title to the defendants which would be good against the creditors of John Nealon who were thus hindered or delayed.3 4. That if the jury find from the evidence that the mortgages were given and received partly to secure a just indebtedness then due and money to be advanced and partly to cover and protect the property of John Nealon from the claims of Samuel Raynor and Mr. Turner upon notes which Nealon had indorsed to the amount of about $6,000, then such mortgages become equally void as to any other creditor of said Nealon who might be hindered or delayed thereby.3 7. That it is a fraudulent act for a debtor to give to one creditor a mortgage largely in excess of his indebtedness, under any arrangement with such creditor that in the event of a sale the debtor is to be protected or in any way benefited thereby at the expense of his other creditors.3 8. That if the jury find from the evidence that the mortgages mentioned were given and received partly to cover the property of John Nealon and protect it from any claims of Mr. Raynor and Mr. Turner against him, and that Thomas F. Walsh was at the time a bona fide creditor of said Nealon, then Mr. Walsh or his assignee Mr. Tierney had a right' to take advantage of this fraud and sell the property a second time on his judgment, and a sale on such judgment to Mrs. Barrett the plaintiff would give her a good title, as against the defendants, and she is entitled to recover.3 The defendants requested the court to charge that the verdict should be in favor of the defendants.8 The court, Archbald, J., charged the jury as follows : [I think I must take upon myself the responsibility of the ease, and decide that there is not sufficient evidence to submit to the jury on the question of fraud. The mortgage itself is not fraudulent, and the only thing to make it so is the alleged corrupt agreement testified to by John Nealon as made with Stephen Nealon and that only discloses the purpose of defeating the indorsement. I will affirm the defendants’ point and refuse the plaintiff’s points, which will take the case from the jury.] 1 A verdict was then returned in favor of the defendants. Subsequently, the court discharged a rule for a new trial, holding inter alia: The express statement of John Nealon, upon whose testimony the plaintiff necessarily depends, is that there was no intention of defrauding Thomas Walsh. The sole alleged fraudulent purpose was to defeat the indorsements held by Turner and Raynor. The plaintiff, claiming under Walsh, cannot avail herself of this. It is only as to the person intended to be defrauded that the statute of 13 Elizabeth operates. This is clearly pointed out by our Supreme Court in a number of recent cases: Monroe v. Smith, 79 Pa. 459; Harlan v. Maglaughlin, 90 Pa. 293; Kimble v. Smith, 95 Pa. 69; Haak’s Appeal, 100 Pa. 61; Armington v. Rau, 100 Pa. 165; Bonesteel v. Sullivan, 104 Pa. 9; Zuver v. Clark, 104 Pa. 222. It is confederated fraud which avoids the conveyance or security given, and as to all parties other than the creditor intended to be defrauded it stands good..... Judgment having been entered upon the verdict, the plaintiff took this writ, assigning for error: 1. The charge of the court embraced in [ ] 1 2. The affirmance of defendants’ point.3 3. The refusal of the plaintiff’s points.3
119 Pa. 178Appeal of Rogers (1888)
APPEAL.FROM THE DECREE OE THE COURT OE COMMON PLEAS OE MONTGOMERY COUNTY. No. 123 July Term 1887, Sup. Ct. In November, 1886, Charles Streeper was committed to prison upon a charge of assault and battery upon his wife, and at the same time proceedings were instituted to have him declared a lunatic. At the suggestion of one of his friends, Mr. J. R. Hunsicker filed a petition for his discharge upon a writ of habeas corpus, and at the attorney’s instance, Drs. A. W. Biddle and Charles K. Mills, of Philadelphia, attended upon the petitioner, made an examination as to his sanity and also attended at court to testify. On hearing upon the writ of habeas corpus the petitioner was remanded to custody and removed to Ercildowne, a hospital for the insane. The proceedings de lunático inquirendo resulted in the confirmation of a finding of lunacy, and the appointment of Geo. W. Rogers and H. B. Dickinson as a committee of the lunatic’s person and estate. On February 7, 1887, Dr. Biddle presented his petition to the Court of Common Pleas setting out the services rendered by Dr. Mills and himself, with their bill of $50 each, for their examination of Mr. Streeper and $25 to the petitioner for the petitioner’s attendance at court. An answer was filed by said committee to a rule granted upon this petition, the respondents disputing that the services were rendered to Mr. Streeper, and denying the jurisdiction of the court to grant the rule and to make a decree in the case. Depositions taken, disclosed, inter alia, that the lunatic’s estate was made up of nineteen parcels of real estate in the vicinity of Chestnut Hill, and of personalty aggregating $24,595. On May 16, 1887, the court, Swartz, filed the following opinion and decree: This is an application for an order on the ■committee in lunacy of the estate of Charles Streeper, .to pay $125 for the professional services of Drs. A. W. Biddle .and Charles K. Mills. Charles Streeper was charged -with assault and battery and committed to the Montgomery county jail". He was violent, abusive, and threatened his family with bodily harm. Bail was refused on the ground of his violence and .alleged insanity. A writ of habeas corpus was taken out 'and an effort made to obtain his release. Counsel for the relator attempted to show the sanity of the prisoner, and at relator’s suggestion employed Dr. A. W. Biddle to make an examination of his mental condition. Dr. Biddle called upon Dr. Mills,-an expert on insanity, and together they made an examination of Mr. Streeper in Philadelphia, at an insane asylum where he was then confined. They made a report-in writing, and Dr. Biddle presented it to the court at the hearing upon the habeas corpus. Dr. Biddle .was also present at a subsequent hearing of the case. These proceedings were prior to the inquisition in lunacy, and the claimant did not appear before tbe commission. The inquest found Mr. Streeper insane. If the services of the claimant formed part of the process by which the lunatic and his estate were put in the custody of the law, it would be the duty of the court to supervise the claim and decree its allowance if manfestly just and moderate. No action would lie against the committee for any of the expenses of the inquisition; this is a matter for the court under a careful supervision: Wier v. Myers, 84 Pa. 377. In the case at bar however, they cannot say that the services of the claimant were rendered in the lunacy proceedings, although it may be argued that the result of the investigation in the habeas corpus proceedings enabled counsel for the alleged lunatic to forego the aid of such medical skill as would otherwise have been necessary. The claimant should be paid a just and reasonable compensation for his services where proper. It would be a lamentable state of affairs if an alleged lunatic were not allowed to have counsel and witnesses to establish his sanity in the initial proceedings to declare him insane or to commit him to jail. His estate must pay all such expenses incurred on behalf of the petitioner in his efforts to show insanity, and why not in his efforts to show sanity ? After a man was once duly adjudged a lunatic it might be otherwise. How should the claimant proceed to collect his bill ? Section 45 of the act of June 13, 1836, P. L. 601, provides: “ Every writ for the commencement of an action against a person found to be a lunatic shall be served on the committee, and proceedings may thereupon be had in like manner as if service had been made upon the defendant being of sound mind.” The claimant can therefore bring his suit against the committee and prosecute it to judgment. Here however he must stop; he is not entitled to execution. He cannot levy upon any of the property real or personal of the lunatic estate; this is in the custody of the court, and to allow such execution would be taking the estate out of the care and guardianship of the court: Eckstein’s Est., 1 Clark 224; Wright’s App., 8 Pa. 57. The object of § 45 of the act of 1836 is to secure to creditors the right 'of trial by jury; by it their claims can be liquidated, the amount of their debts established. But the creditor can waive this privilege and proceed direct to the court, if for any reason the committee refuses to pay or declines to take the responsibility of payment. The proceeding is then by citation, and the court will require the committee to file an account for the settlement of claims whenever good cause is shown: Wright’s App., 8 Pa. 62. We shall treat the application as a petition for a citation to show cause why the claim should not be paid. It does not appear that there are other claims pending against the estate and the court is reluctant to order an account. The court, as the custodian of the lunatic’s estate, has the authority to direct the committee to pay the claim. The committee is but the agent of the court: Eckstein’s Estate, supra. The charge is excessive, and we consider sixty dollars a fair compensation for the entire services. And now, May 16, 1887, it is ordered and decreed that the committee in lunacy of Charles Streeper pay out of the income of the lunatic’s estate to Dr. A. W. Biddle the sum of sixty dollars for professional services rendered by said A. W. Biddle and Charles K. Mills. By the court. Exception having been taken to the decree, the respondents took this appeal, assigning as error: 1. The court had no jurisdiction to make the decree they did in this case. 2. The court erred in making the decree directing the committee to pay the claim of A. W. Biddle, it being no part of the costs. 3. The court erred in deciding that they could in this proceeding direct the payment of a claim against the estate of the lunatic.
119 Pa. 184O'Brien v. P. S. V. R. (1888)
No. 125 January Term 1888, Sup. Ct.; court below, No. 108 March Term 1886. On February 18, 1886, Jobanna O’Brien, executrix of the last will and testament of Jeremiah O’Brien, deceased, brought an action in case against the Pennsylvania Schuylkill Valley Railroad Company to recover damages for injuries caused to real estate of said deceased in the borough of Conshohocken, by the construction of the roadway of the company through said borough.
119 Pa. 192Allen v. Carter (1888)
APPEAL FROM THE DECREE OF THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY, IN EQUITY. No. 164 January Term 1887, Sup. Ct.; court below, No. 7 July Term 1886, O. P. in equity. On June 24,1886, Thomas H. Carter filed a bill in equity against Lucien H. Allen, Charles F. Allen and Charles F. Lloyd, averring inter alia: That on or about July 23,1880, the plaintiff entered into partnership with Lucien H. Allen, under the firm name of Carter, Allen & Co., in the general foundry, machinery and boiler manufacturing business in Tamaqua, in which partnership the plaintiff’s interest was two-thirds and said Allen’s interest was one-third; that said firm continued up to June 19, 1886, when said Allen transferred all his interest in the firm to Charles F. Allen and Charles F. Lloyd; praying for a decree that the partnership should be decreed to be dissolved, and that the plaintiff was entitled as continuing partner to the custody, control and management of the assets of said partnership for the purpose of winding up its business, etc., and for a special injunction till hearing and thereafter a perpetual injunction, restraining the defendants from interfering with the rights of the plaintiff as liquidating partner, etc. A special injunction was awarded on the filing of the bill. On the hearing, subsequently, of a motion to continue the special injunction granted, the question passed upon in this court was raised, among others, by an affidavit of Lucien H. Allen, that from the organization of said partnership till the present, the plaintiff, being the cashier of the First National Bank of Tamaqua, was prohibited by statutes from engaging in any business other than as cashier, and being so prohibited could not enforce any contract of copartnership made in violation of said statutes. O'n December 20,1886, the court, Pershing, P. J., filed the following opinion and decree: A partnership was entered into between the complainant and L. H.' Allen, one of the defendants, on or about July 23, 1880, under the firm style of Carter, Allen & Co. By a letter dated June 22,1886, L. H. Allen informed his partner that he had, on June 19, 1886, sold all his right, title and interest in the personal property belonging to Carter, Allen & Co., to C. F. Lloyd and C. F. Allen, and had also made a lease to them .of the shops for three years. The bill of sale made by L. H. Allen to Lloyd and C. F. Allen, of June 19,1886, sets forth that he and Thomas H. Carter “compose the firm of Carter, Allen & Co., founders and machinists, of Tamaqua,” and is for the undivided one half part of the property mentioned particularly therein. There is a dispute as to the amount of interest the partners respectively had in the business of the firm, but that a partnership existed is shown by the evidence on both sides, and that the sale of what L. H. Allen claimed was his interest was without the knowledge or consent of his partner, Carter, is not denied. Claiming to be the continuing partner, upon whom devolved the right to wind up the business of the said firm, the complainant filed the above stated bill, and thereupon obtained an injunction from .Judge Bechtel at Chambers, restraining the defendants till hearing, from in any manner interfering with complainant’s right of control of the partnership property. It appears from the evidence submitted, that subsequently, viz.: on October 20, 1886, all the right, title, &c., of L. H. Allen, in all the personal property in and about the said works, was sold at sheriff’s sale and purchased by the said C. F. Allen and C. F. Lloyd, for the sum of $1,250. That the sale by Lucien H. Allen of his interest in the partnership worked, a dissolution of the firm of Carter, Alien & Co., is distinctly decided in Horton’s App., 13 Pa. 67. It is there held that, after a dissolution thus effected, the assignee, or incoming partner, cannot withdraw the effects or his share of them. The remaining partner is entitled to hold possession for the purpose of paying off the debts, and winding up the assets of the firm. This is not only his right but his duty. It is not necessary to cite the many other cases to the same point. The defendant, L. H. Allen, now strenuously asserts that the contract of partnership entered into between himself aud the complainant was a nullity, and that no rights as the continuing partner can be claimed by the complainant under it. The ground of this is, that the complainant at the time the partnership was formed, was, and still is, the cashier of a national bank. To support this position, the act of April 16, 1850, and its supplements, regulating banks deriving their power from the state, is relied upon. The statute provides that it shall not be lawful for the cashier of any bank to engage in any other profession, occupation or calling, either directly or indirectly, than that appertaining to his office of cashier. A violation of this provision subjects the cashier of any bank, on conviction in any court of criminal jurisdiction, to the payment of a fine not exceeding five hundred dollars. The exceptions to this legislation do not concern the case in hand. The 64th section of the penal code of 1860, enacts, that if “ any cashier of any bank of the commonwealth shall engage, directly or indirectly, in the purchase or sale of stock, or in any other profession, occupation or calling, other than that of his duty as cashier, he shall he guilty of a misdemean- or, and being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dollars.” The earliest decision under this provision in the act of 1850, is that of Young v. Robertson, 6 Phila. 184, made by Judge Shakswood, in the District Court of Philadelphia, in which he ruled that the fact that one member of a partnership plaintiff was a cashier of a bank, was a sufficient bar to an action for goods sold and delivered by the firm of which he was a member. The same judge afterwards delivered the opinion of the Supreme Court in the case of Burkholder v. Beetem, 65 Pa., 496. It was an action brought to recover back money-paid for the purchase of stock in a coal company to the cashier of a bank. The court says: “ It may be that the purchase of stock in a coal company for investment only or subsequent sale, would not be within the prohibition, but when there is evidence, as there was in this case, that the cashier was engaged in speculating in stocks, the case is clearly within the letter and spirit of the act. It is true that when a contract so prohibited by statute has been executed, both parties being in pari delicto, an action cannot be maintained by either party to rescind the contract: Addison on Contracts, 149.” We must remember in disposing of the present controversy, that we are dealing with the case of a cashier of a national bank and not of a state bank. Our state enactments, which are much older, can have no reference to the act of congress creating national banks. The National Banking Act, § 5209, specifies the offences of which cashiers and other officers may be convicted., For none of these can they be indicted in a state court, nor is their being concerned in other occupations made a crime. The affairs of these banks are exclusively under the control of congress: Commonwealth ex rel. Torrey v. Ketner, 92 Pa. 372. “We must presume,” said Mr. Justice Paxson in that case, “ that when the legislature used the words ‘ any bank,’ it referred to banks created under and by virtue of the laws of Pennsylvania. The national banks are creatures of another sovereignty. They were created, and are now regulated by the acts of congress.” Penal statutes cannot be extended by implication to such institutions: Idem. The right of exclusive legislation carries Avith it the right of exclusive jurisdiction: United States v. Cornell, 2 Mass. 60. We cannot, therefore, with the light before -us, assent to the claim made, that the purchase at the sheriff’s sale of L. H. Allen’s interest, vested in C. F. Allen and Lloyd the exclusive right to the possession and control of all the assets and partnership property of the firm of Carter, Allen & Co. Supposing, however, that the law of the state can be extended to a cashier of a national bank, and thus punish him for doing what is not declared to be an offence under the act of congress relating to national banks, surely he must first be judicially convicted of the crime before his rights of property can be taken away from him and handed over to, others. The familiar rule of the law is, that conviction and sentence alone establish the guilt of the accused, and fasten upon him the legal consequences. And now, December 20, 1886, the injunction is continued until final hearing, or further order of the- court. By the Court. Thereupon the defendants took this appeal specifying that the court erred: 1. In granting a preliminary injunction. 2. In granting an injunction and in not deciding and decreeing that the said Thomas H. Carter was prohibited by the several acts of assembly from carrying on the machine, foundry and boiler manufacturing business, while he was cashier of the First National Bank of Tamaqua, and his contracts in this respect were void and could not be enforced.
119 Pa. 200Salsbury v. Black (1888)
ERROR TO THE COURT OE COMMON PLEAS OE LACKAWANNA COUNTY. No. 146 January Term 1888, Sup. Ct.; court below, No. 171 January Term 1884, C. P. On November 9, 1883, an action of ejectment was brought by Helen C. Salsbury against R. T. Black, to recover a house, and lot in Scranton. At the trial on December 1, 1887, it appeared that in December 1874, the plaintiff had acquired the property in dispute subject to the lien of a mortgage, held by E. B. Sherwood, for $2,000 ; a judgment, held by R. T. Black, for $2,120; another judgment in the name of Thomas Moore, for $1,249.54. Of this last lien she was not aware, when she purchased. R. T. Black was tenant upon the property. On December 21, 1878, under process issued upon Mr. Black’s judgment, the property was sold at sheriff’s sale and purchased by him, under an arrangement, as was claimed upon the evidence, that he would bid the property off and hold it for Mrs. Salisbury, to be re-conveyed upon payment by her of an amount sufficient to liquidate the then existing liens and costs. The facts fully appear in the opinion. The court, Knapp, J., charged the jury and answered the points presented as follows: The case which you have been occupied in listening to for two days has now reached its close. Under all the testimony that has been offered by the parties, I shall instruct you, as a matter of law, that the plaintiff cannot recover. If we have made a mistake in this it can be corrected by a higher court. The responsibility is not upon you but upon the court. The plaintiff and defendant have presented certain points upon which they ask the court to charge you. I will read these points and answer them. The defendant’s points are as follows: 1. That the act of April 22, 1856, P. L. 533, requires that all trusts in real estate shall be in writing, signed by the party holding the title therefor,,and the plaintiff having failed to prove the existence of any written agreement, your verdict must be for the defendant. Answer: Under the evidence in this case this point is affirmed.1 2. That resulting trusts can be created only by the payment of a part of the purchase money by the party claiming to be cestui que trust, or by fraud at the time of the purchase on the part of the purchaser at a sheriff’s sale, and both these requirements being entirely wanting in this case, your verdict must be for the defendant. Answer: This point is affirmed.8 3. That the plaintiff having failed to prove that Black used any fraudulent means in obtaining the title at sheriff’s sale, and also having failed to show payment by her of any portion of the purchase money, she has failed to establish a trust ex maleficio, and your verdict 'must be for the defendant. Answer: This point is affirmed.3 4. That to establish any trust in favor of plaintiff in this case, she must show what the agreement creating the same was by testimony that is clear, explicit and unequivocal, and having failed to show either the amount to be paid, time of payment or any other clear and definite arrangement, your verdict must be for the defendant. Answer: This point is affirmed.4 5. That in any event, by her laches in neglecting for more than three years to notify the defendant of her intention to claim the property, during which time the defendant had expended large sums of money in repairs and other expenses, she has lost any equity to which she might have been entitled, and cannot recover. Answer: Upon this point we say, that under our answers to the previous points, it becomes unnecessary to either affirm or refuse this point.5 6. That under the facts as proven in this case, and the law, plaintiff must reimburse the defendant for whatever reasonable outlays he has made in the maintenance, repair and improvement of the property described in the writ. Answer: It becomes unnecessary also to answer this point. 7. That under the law and evidence, your verdict in this case must be for the defendant. Answer; This point is affirmed.6 The plaintiff has presented the following' points, which are refused: 1. If the jury find from the evidence that the plaintiff, Helen C. Salsbury, has a deed for the land in question, and was the owner of the house and lot before and at the time the land was sold by the sheriff on execution issued by R. T. Black upon his judgment versus John L. Hull, a former owner of the real estate, and that Mrs. Salsbury was induced to confide in the verbal promise and agreement of R. T. Black that he would attend the sheriff’s sale for her and bid off the land for her, and in consequence of said verbal promise and agreement made by Black he obtained the title to the same, by the sheriff’s deed, a denial by Black of his promise and agreement, and refusal to let Mrs. Salsbury have the property is such a fraud as will raise a constructive trust and make Black a trustee ex maleficio, and the verdict should be for the plaintiff.7 2. That if the jury find that Mrs. Salsbury had a deed from George Coray for the land in question, and that she was induced to confide in the verbal promise and agreement of R. T. Black that he would attend the sheriff’s sale and bid off the land for her, and that in consequence he was allowed to obtain a legal title to the same, his denial of the confidence is such a fraud as will make him a trustee ex maleficio, and the verdict should be for the plaintiff.8 8. That if the jury find from the evidence that Mrs. Salsbury was the owner of the land in question before and at the time of the sheriff’s sale, and that she paid the interest on the Sherwood mortgage at Black’s request to stop the foreclosure of that mortgage, upon the verbal promise and agreement by Black that if she would pay said interest he would sell the land upon his lien at sheriff’s sale and buy the land for her, and after the sheriff’s sale told her he had done as he had before told her, and in consequence of the confidence and trust she reposed in him by reason of said promise and agreement, Black became the holder of the legal title obtained at said sheriff’s sale, his refusal thereafter to reconvey the title to her is such fraud as would make him a trustee ex maleficio and the verdict should be for the plaintiff.9 4. That if the jury find from the evidence that R. T. Black, the defendant, is a trustee ex maleficio, and that the plaintiff is entitled to the verdict, the defendant is not to be allowed for any improvements he may have put upon the property.10 5. That in case of an ejectment to enforce a constructive trust when the legal title has been fraudulently obtained, a previous tender of reimbursement is not necessary. All the defendant would be entitled to is the money actually paid out by him to obtain the title; and as this defendant since he thus obtained the title has enjoyed the rents and profits of the property in question he will not be entitled to interest on the money so expended by him; and the jury, in case the verdict be for the plaintiff, should fix a reasonable time for the payment of the same.11 6. That a trust arising from the fraud of the holder of the title is one by operation of law; and where one procures a title which he could not have obtained except by a confidence reposed in him and abuses the confidence, he becomes a trustee ex maleficio. Such trust arises by implication and construction of law, and is within the proviso of the 4th section of act of April 22, 1856.13 7. That if under all the facts in evidence in this case the jury shall find in favor of the plaintiff, the verdict should be for the plaintiff for the land described in the writ, upon condition that she pay into court for the use of the defendant within three months after the rendition of the verdict the sum of $4,765, the amount expended by Black to obtain the legal title; otherwise the verdict to be set aside by the court, and judgment entered for defendant. Gentlemen of the jury, you will render your verdict in favor of the defendant. A verdict for the defendant having been returned and judgment entered thereon, the plaintiff took this writ assigning for error: 1. The direction to find a verdict for the defendant. 2-6. The answers to the defendant’s points.310 6 7-12. The refusal of the plaintiff’s points.7 *°13
119 Pa. 208Lyon v. Goff (1888)
APPEAL EROM THE DECREE OE THE COURT OE COMMON PLEAS OE MONTOUR COUNTY. No. 98 July Term 1887, Sup. Ct.; court below, No. 60 May Term 1887, C. P. On April 1, 1887, upon an agreement signed by Mr. Wm. J. Baldy, for the plaintiff, and Mr. James Scarlet, for the defendants, an amicable action of ejectment was entered by W. A. Lyon against John Goff and C. E. Swartz, for the recovery of premises in the Third ward of Danville, “being the same property leased to John Goff as a dwelling-house; and [agreeing] that judgment be entered in said action against the said John Goff and the said C. E. Swartz, without stay of execution or appeal; that W. A. Lyon, the plaintiff, do recover possession of the premises above mentioned and described, with the appurtenances, with costs of suit,” etc. With this agreement there was filed a statement of the plaintiff setting forth that the action was founded upon a written lease of said premises, dated March 29, 1886, by the plaintiff to John Goff, one of the defendants, for the term of one year then next ensuing, which lease was made a part of the statement and contained the following provisions : And the second party doth covenant with the first party in manner following, that is to say: The rent hereinbefore reserved shall be paid on the several days appointed therefor, without demand hy the first party. No part of said term, or of any renewal shall be assigned, nor any portion of the demised premises underlet without the written consent of the first party. No waste shall be committed; and at the end, of said term, or of any renewal, the demised premises shall be delivered up without further notice in as good condition as at the commencement thereof, ordinary wear and tear and unavoidable damage by fire, tempest and lightning excepted. This demise is upon condition that the covenants of the second party shall be fully kept and performed; and on any breach thereof the estate demised shall at the election.of the first party cease and determine, and the first party may re-enter the demised premises without previous notice or demand. And upon the expiration or other determination of said term, or any renewal, any attorney may appear for the second party in an amicable action of ejectment for the demised premises, in any court having jurisdiction, and confess judgment therein, with costs, in favor of the first party, or those claiming under said first party, and against the second party, and those claiming under said second party. But such re-entry or judgment shall not bar the recovery of rent or damages for breach of covenant ; nor shall the receipt of rent after condition broken be deemed a waiver of forfeiture. The second party confesses judgment for the rent reserved for said term, and for each renewal, with stay of execution until the several days of payment; such judgment to be entered successively as renewals shall take place. And judgment in ejectment, as hereinbefore provided, may be entered concurrently therewith. The notice to quit required by any act of assembly previous to proceedings to recover possession of the demised premises, and the benefit of all laws granting stay of execution, appeal, inquisition, or exemption of property from sale on execution or distress for rent, are waived by the second party. This indenture shall bind all persons claiming under the parties hereto, in whatever character, as fully as if they were in every instance herein named. The statement then proceeded to allege breaches of the covenants of said lease, in that John Goff, the lessee, had committed waste, had neglected to repair, had sublet to C. E. Swartz without the lessor’s consent, and had refused to surrender, etc. With the statement was the following: “ By virtue of the power of attorney in the said lease contained. I appear for the defendants in said action and confess judgment against them, according to the tenor and effect of said lease hereinbefore set forth. [Signed] James Scarlet, attorney for defendants.” Judgment for the plaintiff having been entered, a writ of habere facias possessionem was issued the same day, when C. E. Swartz presented his petition averring, inter alia, that he had never signed said lease, was in possession of the premises under a parol lease from the plaintiff himself, made in January, 1887, and he had never authorized James Scarlet nor any other attorney to appear for him and confess judgment against him, praying for a rule to show cause why said judgment should not be stricken off or opened, etc. The writ was stayed, rule granted, answer filed and testimony taken. At the hearing on May 9, 1887, the court, Green, J., 21st district, holding special term, finding that, though a disputed question of fact was raised, whether the plaintiff had made the alleged parol lease to C. E. Swartz, yet it was evident from the testimony of the defendant alone, that the contract was but an agreement to execute a lease, which lease in fact the plaintiff afterwards refused to execute ,* that the defendant thus acquired no legal interest in the property, and, determining that the confession of the judgment was within the authority contained in the lease, discharged the rule granted, whereupon C. E. Swartz, the petitioner, took this appeal, assigning the decree as error.
119 Pa. 212Harvey v. Girard National Bank (1888)
4 OF PHILADELPHIA COUNTY. No. 180 July Term 1886, Sup. Ct.; court below, No. 606 June Term 1885, C. P. No. 4. On June 3, 1885, Thomas Harvey brought an action in case against the Girard National Bank, to recover damages sustained by the alleged negligence of the defendant bank to present for payment a draft upon the plaintiff at the place where payable and where funds had been deposited to meet it. The plea was not guilty.
119 Pa. 223Webber v. Commonwealth (1888)
4, OF PHILADELPHIA COUNTY. No. 115 January Term 1888, Sup. Ct.; court below, No. 210 December Term 1886, O. & T. On December 20, 1886, a bill of indictment charging Oscar Hugo Webber with the murder of William H. Martin was found a true bill. On January 5,1887, the prisoner was arraigned and not answering directly, the court, Mitchell, J., ordered the clerk to enter a plea of not guilty, which was done.
119 Pa. 254Commonwealth v. Eichelberger (1888)
ERROR TO THE COURT OF QUARTER SESSIONS OF LEHIGH COUNTY. Nos. 245 and 246 January Term 1887, Sup. Ct.; court below, No. 61 January Term 1886. On November 8,1886, an indictment was found charging Samuel K. Eichelberger with the larceny of a promissory note, the property of the Coopersburg Savings Bank, dated April 19, 1886, for $1,600, payable at ninety days to the order of John Eichelberger and indorsed by John Eichelberger. At the trial on November 10,1886, after the case was closed on the evidence, the court, Albright, P. J., charged the jury: In a criminal case the jury are the judges of the law and the facts. The court can say to the jury that if they find certain facts, then under the law they can convict, but the jury has the right in any case to acquit the defendant. You have a right to acquit the defendant notwithstanding what the court may say to you respecting this case. I propose to recommend that you find a special verdict; that is, that you find the facts in the case; that you state upon record by your verdict what the facts are, then the court will hereafter determine whether what you find constitutes the crime of larceny. In the opinion of the court it is a grave question whether what the defendant did according to the prosecutor’s statement and the testimony of Mr. Blank, constitutes larceny. It may be a criminal offence, it may come under some other head of the criminal law, but whether it is larceny, whether it is the felonious taking of the property of another, is a serious, question. The court, if called upon at this moment to decide the question, would say to you that under the evidence before you, you could rightfully convict the defendant.. If the court were not of that opinion, it would be its duty to instruct you to return a verdict of not guilty. But the court is willing to look further into the question of law and see whether what is alleged constitutes larceny. If you believe what has been testified to in behalf of the prosecution, you may render a special verdict. At the same time you have a right to find a verdict of not guilty. When the court says to you that the evidence in this case is such that it warrants conviction, that statement is based upon the opinion that where a person intending to deprive another of a piece of personal property by artifice, trick or contrivance, gets possession of the property intending at the time when he gets possession of it, to retain it against the owner’s consent and that he will appropriate it to his own use, then larceny is committed...... The ■ court will send out with you a statement of certain facts. You need not be guided by this writing at all; it is only for the purpose of calling attention to what you are to pass upon and make answer to, when you return to the jury box to give your verdict. When you have agreed we will ask you what facts you have found. You can read over what is here written, so that when you are asked as to the facts you can answer. The defendant excepted to the charge of the court, and objected also “to the paper called a form of a special verdict,” and asked that a bill of exceptions be sealed because the same was sent to the jury without his consent. The jury, in pursuance of the foregoing instructions, returned the following: We, the jurors impaneled in this case, find the following facts :■ On July 21, 1886, the Coopersburg Savings Bank was the holder and owner of a promissory note, made by the defendant and indorsed by John Eichelberger, of which the following^ a copy: $1,600. Coopersburg, April 19,1886. Ninety days after date, I promise to pay to the order of John Eichelberger, at the Coopersburg Savings Bank, sixteen hundred dollars, without defalcation for value received. Credit the drawer. S. K. Eichelberger. Johannes Eichelberger. Endorsed — Johannes Eichelberger. Said note was the last of a number of like notes, given during a period of three years, each being a renewal of the one immediately preceding it, which had been discounted by said bank, the defendant having received the proceeds thereof. On July 21, 1886, defendant called at said bank’s place of business, found there George Blank, Esq., the cashier of the bank, and had a certain business transaction with him respecting said note of April 19, 1886, and the renewal thereof. Defendant then paid to the cashier the discount for a renewal of the last-mentioned note — the discount, which would have been due on a similar note, for another period of ninety days, that is $25.07, and gave to said cashier another note of which the following is a copy: $16.00. Coopersburg, Pa., July 21,1886. Ninety days after date, I promise to pay to the order of John Eichelberger, at the Coopersburg Savings Bank, sixteen dollars, without defalcation for value received. Credit the drawer. S. K. Eichelberger. Johannes Eichelberger. Endorsed — Johannes Eichelberger. Thereupon said Blank delivered to the defendant said note, of date of April 19, 1886, and then defendant left the bank, taking with him the said note so given to him. Said Blank, when he accepted said note for sixteen dollars, believed that it was for sixteen hundred dollars, and, because he so believed and for no other reason, he was willing to surrender and did surrender to the defendant said note of April 19, 1886. He did not discover until about an hour after defendant had left the bank that it was for sixteen dollars only. The bank afterwards requested the defendant to pay sixteen hundred dollars; that is, after it would have been due if said note for sixteen had been written for sixteen hundred dollars. Defendant never paid said sum of sixteen hundred dollars, nor any part thereof. The bank never again received said note of April 19, 1886. The bank still holds said note for sixteen dollars. Defendant said nothing to the cashier as to what amount the note of July 21, 1886, was written for. When defendant delivered to the cashier the note for sixteen dollars, he knew that it was for sixteen and not for sixteen hundred dollars; that the cashier, in giving up the note for sixteen hundred dollars, was mistaken in that he had overlooked the fact that it was for sixteen dollars only; defendant knew when the note for sixteen hundred dollars was surrendered to him, that the cashier believed he had received another note for sixteen hundred dollars, and that if the cashier had not so believed he would not have given up the note. The defendant made and presented the note for sixteen dollars with the deliberate design and intention to defraud said bank by obtaining from it said note for sixteen hundred dollars by giving in its place one for sixteen dollars only, and with the design and intention that the officers of the bank should overlook the fact the note offered was for sixteen dollars only, and that by reason of such oversight and mistake, should give up the note for sixteen hundred dollars. If the facts stated and the acts of the defendant above set forth are sufficient in the opinion of the court to warrant a conviction of the defendant, of the crime of larceny, then the jury do say that he, the defendant, is guilty of larceny in manner and form as he stands indicted. If not sufficient, then the jury find the defendant not guilty. On December 24,1886, the district attorney moved the court to adjudge the defendant guilty in manner and form, etc., and to pass-sentence. On the same day the defendant’s attorneys moved the court to enter judgment upon the verdict in favor of the defendant, and also moved the court in arrest of judgment, alleging for cause: 1. There is no authority in law for the form of the verdict rendered by the jury. 2. The jury never passed upon the guilt or innocence of the accused. 3. The jury never considered the law of the case. 4. A question of law cannot be reserved in a criminal case, and the court in the charge practically reserved a question of law; therefore the judgment must be arrested. On January 3, 1887, these several motions were disposed of by the following opinion and order, Albright, P. J.: By the court: In the case of Lewer v. Commonwealth, 15 S. & R. 93, the indictment was for larceny. The jury found the facts specially, submitting to the court the question whether under the facts the defendant, Lewer, was guilty of larceny. The jury found that the defendant, by various false and fraudulent pretences set forth in the finding, did procure from the prosecutors sundry dry goods and money; that he acted with the premeditated design and intent wilfully to defraud and cheat them of their property and without any intention of ever returning the same to the rightful owners. The Court of Quarter Sessions held that the facts found constituted larceny. That judgment was reversed by the Supreme Court. In the opinion, Tilghman, C. J., after reviewing certain English cases, points out the distinction in the cases where the property, alleged to have been stolen, was obtained by trick or artifice, between the intent of the owner to part with the property and the intent only to part with the possession for a particular purpose. He declared the law to be that where the owner delivered the possession absolutely, where the intent was that the possession should never return to lfim, it was a case of cheating and not of felony; but that where the owner intended to part with the property the case was different, then there might be a conviction of larceny. The chief justice said that thus there was a line distinctly marked and that he would stop there. Applying said principle to the case, the court concluded that, while Lewer had deceived the prosecutors most shamefully, he was not guilty of larceny, because the prosecutors intended to pass the property when they delivered the possession. There has been no decision of the Supreme Court since, changing or qualifying the rule thus laid down. In the case now before the court, the cashier of the bank surrendered and delivered to the defendant the promissory note alleged in the indictment to have been stolen, not with the intent that the defendant should have the possession thereof only for some purpose and that it should again be returned to the bank, but with the ihtent that he should keep it and do with it what he pleased; the property itself was delivered. The casMer believed that he had received a new note for $1,600, and for that reason was willing to give up, and actually did give up absolutely, the old note. Therefore, according to the case cited, it cannot be adjudged that defendant is guilty of larceny, however dishonest and outrageous his conduct may have been. Upon the trial, and again upon the argument of these motions, many English and American cases were referred to by counsel for the commonwealth and for defendant; but, as said case of Lewer v. The Commonwealth is now deemed to be decisive of this case, it is unnecessary to dwell on said other cases. • There is no need to discuss the other question presented, that is whether the rule of law, which declares that in a criminal case the jury are the judges of the law and the facts, forbids the finding of the facts specially and the application of the law by the court. In Commonwealth v. Chathams, 50 Pa. 181, which was also a prosecution for larceny where there was a special verdict, it was decided that such proceeding was proper, that the jury have a right in all cases whatever, whether capital or otherwise, to find a special verdict by which the facts of the case are put on record and the law is submitted to the judges. I can see nothing in Kane v. Commonwealth, 89 Pa. 522, as explained in Nicholson v. Commonwealth, 91 Pa. 390, to lead me to believe that the law is no longer as laid down in Commonwealth v. Chathams. Of course the jury have a right to render a general verdict of acquittal, and, I think, where they are invited to find the facts specially, they ought to be plainly told that they have a right to acquit. In this case the jury were told that distinctly, and that they were the judges of the law and the facts..... Judgment on the special verdict was then entered for the defendant and the motion for judgment for the commonwealth overruled, the court directing that the defendant should not be discharged from his recognizance, but that if within two weeks the district attorney gave notice of his intention to take a writ of error, the defendant’s recognizance should then be renewed. The commonwealth thereupon took this writ, assigning as error: 1. The entering of judgment on the special verdict for the defendant. 2. The overruling of the motion for judgment for the commonwealth.
119 Pa. 278Potts v. Penn. S. V. R. (1888)
ERROR TO THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY. No. 117 January Term 1888, Sup. Ct.; court below, No. 88 March Term 1886, C. P. The contention below was on an appeal from an award of viewers appointed to assess damages in a proceeding wherein E. Channing Potts, E. Channing Potts and W. W. Potts, trading as E. Channing Potts & Bro., and E. Channing Potts and W. W. Potts, tenants in common, were plaintiffs, and the Pennsylvania Schuylkill Valley li. Co., defendants. At the trial on October 17, 1887, it appeared that on June 18,1883, the date of the location of defendant company’s road, E. Channing Potts and W. W. Potts were the owners as tenants in common of a tract of about 100 acres of land in Whitemarsh township, operated chiefly as a marble quarry; E. Channing Potts was the owner of a lot, containing from 4 to 6 acres, at Spring Mill, about one half an acre of which was appropriated by the defendant’s location; E. Channing Potts was also the owner of a sales-yard at Ninth and Thompson streets, Philadelphia. The three properties were held under a parol lease by E. C. Potts and W. W. Potts, trading as E. Channing Potts & Bro. in the business of mining, shipping and selling marble and flux, the Spring Mill lot being the shipping point and the property at Ninth and Thompson streets a place of storage and sale. The other material facts appear in the opinion. E. Channing Potts, called for plaintiffs: Q. Where was this marble quarry ? A. The marble was quarried in Whitemarsh about one mile from Spring Mill, on the property belonging to my brother and myself. Defendant objects. Counsel for plaintiffs state that they propose to show in the course of this trial that this is one business and that the three properties were connected together in such a way as that the destruction of any one of them involved the destruction of the other two; that this piece of property which was in Mr. Channing Potts’s own name, was an essential link to join the two properties together and that the moment that that was destroyed it destroyed the usefulness of the other two; and that the damages that resulted to E. C. Potts & Bro. in the prosecution of their business involved a large loss to them in the carrying of their traffic and depreciated the market value of their properties which were thus cut. By the court: As I view this case, there are only two parties who are entitled to recover here: first, E. Channing Potts & Bro., if they can show that they have a leasehold interest in this property, and that this leasehold interest has been injured or destroyed, must be paid for the amount of the injury, or for the destruction; and in order that the jury may ascertain what the Value of that leasehold interest is, they are entitled to have a full description of the business conducted there; and in order that the jury may find what that business was, they are entitled to know just how the business was conducted. Then the only other party that can recover, as I view it, is E. Channing Potts, who is the owner of this particular railroad lot. He is to recover for the injury or destruction of this particular lot, and that the jury may ascertain what the loss is, they can take into consideration its location, its adaptability as a shipping point, and if by reason of its location and connection with other properties, it has a particular value, and the market value of the property has been destroyed, he can recover for that. But I do not see how E. Channing Potts and William W. Potts, as tenants in common, can recover anything for the marble quarry property. I therefore will allow you to prove just exactly what the nature and character of the business was, that was conducted here by the tenants, so that the jury may know what the value of that leasehold was, if they find it was destroyed or injured; and I will allow you to show how this lot is located, its adaptability as a shipping point, and what its value was before the railroad was located, and what its value was immediately after the railroad was located, in order to ascertain the damage to that lot.1 Several other like offers were made on the part of the plaintiffs and excluded on like grounds.1 The court, Swaktz, J., so far as relating to the question decided here, charged the jury in accordance with the foregoing ruling and answered the plaintiffs’ points as follows : 1. That the jury are to allow E. Channing Potts, as owner of the Spring Mill lot such damages as they may find he has sustained by reason of the injury to his shipping place there caused by the construction of the road. Answer: This is true, but in estimating these damages the jury must not consider this Spring Mill lot or shipping place as part of the quarry property; and the sole measure of damage is the depreciation of the market value of this lot as affected by the location of the railroad of the defendants.9 2. That the jury are to allow Potts & Bro. as a firm such damages as they may find they have sustained by reason of their being deprived of the shipping place upon the Spring Mill lot. Answer: This is true if the jury find that Potts & Bro. as lessees of the Spring Mill lot, were deprived of their shipping place by the location of the railroad of the defendants; and the measure of damages for the loss or injury to their shipping place is the depreciation in the market value of the balance of the term of their leasehold estate as affected by the location of the railroad of the defendants.10 3. That if the jury believe the evidence, which is not contradicted, that the firm of Potts & Bro. were lessees of the marble quarries in connection with the Spring Mill lot as a shipping point and with the yard in Philadelphia, the jury are to allow them as lessees, such damages as they may find they, as such lessees, have sustained, occasioned by the construction of the defendant’s railroad. Answer: I cannot affirm this point as it stands. There is no testimony that the court remembers, that Potts & Bro. were the lessees of the marble quarry. If the jury believe the evidence that Potts & Bro. were lessees of the Spring Mill property and the yard in Philadelphia, then the damages sustained by Potts & Bro. in their leasehold interest must be allowed, and the damages are to be measured as explained in the answer to the second point'just given.11 4. That in considering the question whether the plaintiffs have derived any advantage by reason of the construction of this railroad, they are not to consider any advantages which are common to the whole neighborhood. Answer: This is true, and yet the advantages that the plaintiffs enjoy in common with others may also be special to the plaintiffs. For example, a railroad company may be entitled to the benefit of an advantage accruing to claimants from the proximity of a railroad station, although the same advantage would necessarily be enjoyed by the neighboring farmers.18 5. That .the jury are to allow all damages sustained by either and each of said parties, both direct and consequential. Answer: This is true, but the damages must be determined by the tests already given to you.13 6. That in assessing the damages, the jury are also to allow such damages as Potts & Bro., as lessees, sustained, and all damages that E. Channing Potts has sustained by reason of the defendants not having put in a railroad crossing. Answer: This is true, but damages could not be included for making the crossing itself, for that is to be made by the company defendant, but for the damages already sustained by reason of its not having been constructed.14 The jury returned a verdict in favor of E. Channing Potts and E. Channing Potts & Bro. for the sum of $8,374.06, divided as follows: To E. Channing Potts & Bro., $2,112.78, and to E. Channing Potts, $1,261.33. As to E. Channing Potts and W. W. Potts, the verdict was for the defendants. Judgment being entered, the plaintiffs took tins writ, assigning for error: 1. The refusal of the plaintiffs’ offers.1 9-14. The answers to the plaintiffs’ points.9 to 14
119 Pa. 287Damon v. Balt. & Phil. R. (1888)
APPEAL FROM DECREE OF THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, IN EQUITY. No. 156 January Term 1887, Sup. Ct.; court below, No. 1 March Term 1885, C. P. in equity. On December 15, 1884, a bill in equity was filed by Albert F. Damon against the Baltimore and Philadelphia R. Co., averring the ownership by the plaintiff of a country-seat in Darby township, the threatened invasion of the same by the defendant company, with irreparable injury to the plaintiff, praying for a preliminary injunction until hearing and perpetual injunction thereafter. The preliminary injunction moved for was refused, and on appeal by the plaintiff to this court, the justices sitting being equally divided in opinion, on March 2, 1885, the appeal was dismissed. The hearing then proceeded before Mr. John T. Reynolds, appointed master and examiner, who on October 2, 1886, filed a report of his findings of fact and of law, which was as follows : From the evidence presented as aforesaid the master and examiner finds: That Albert F. Damon, the plaintiff, is the owner and occupant of a dwelling-house and country-seat situate in Darby township, Delaware county. The premises comprise about forty acres of land, and have been owned by the plaintiff for twenty-six years last past. The dwelling is mainly of brick. To the original building, which is perhaps a century old, additions have been made and improvements therein effected, from time to time, until the structure, while in no sense elegant, is yet commodious and convenient, and altogether a very desirable country home. There is also a large stone and frame barn and two-story spring-house, good buildings, in keeping with the general character of the place. The spring-house is in front of the dwelling, at the foot of the knoll upon which the latter is situated, and about two hundred and twenty feet distant, with a board walk between. From the spring, water is supplied to the dwelling by means of a hydraulic ram. The only approach to the dwelling is by a private lane or carriage-way leading in from the Darby road, which carriage-way from a distance of perhaps four hundred feet from the dwelling-house rises at a moderate grade to the house, where it turns and continues to the barn, about sixty feet away. The pipes from the hydraulic ram to the dwelling run parallel with this carriage-way, and near to it. Upon the one side of this carriage-way is the spring-house before mentioned, and a somalí inclosure, part of which is used as a tennis ground and the remainder filled with fruit trees, the two being separated by merely a terrace. Upon the other side, and also inclosed, is a garden of considerable extent, from which the families of the plaintiff and his son have been supplied with vegetables and fruit. From the barnyard a small lane led to a trough below the spring-house, supplied with water from the spring. To this trough the cattle came by the lane aforesaid for water. The defendant, a corporation created under the general railroad acts of 1849 and 1868 has constructed a railroad across ancl upon the lands of the plaintiff aforesaid, the light of way-claimed therefor being seventy feet in width. The said railroad is in front of the plaintiff’s dwelling, and is located upon an embankment which crosses about the center of the garden aforesaid, destroys a small corner of the terrace at the end of the lawn tennis ground, and occupies a greater part of the remainder of the same inclosure containing fruit trees. It separates the spring-house from the dwelling and the barn, passing very close to the latter. It is one hundred and ten feet from the dwelling to the nearest line of this embankment and one hundred and thirty-eight feet to the track. The carriage-way is spanned by a bridge about ten feet in height and with a width between walls of twenty feet. This carriage-way has not been changed, but it is proposed by the defendant to lower its grade by excavation at the bridge, so as to give at that point a clear height of eleven or twelve feet. This change of grade will not, in the opinion of the master, materially affect or render more difficult the approach to the dwelling. The route through the property of the plaintiff was chosen from several surveys made as being the most practicable because of its doing the least damage not only to the property of the plaintiff, but also to other properties for several miles on either side thereof; also because of favorable topographical features. Section 10, act of February 19, 1849, is as follows: “The president and directors of such company shall have power by themselves, their engineers, superintendents, agents, artisans, and workmen, to survey, ascertain, locate, fix, mark and determine such route for a railroad as they may deem expedient, not, however, passing through any burying ground or place of worship, or any dwelling-house in the occupancy of the owner or owners thereof, without his, her, or their consent.” Has the construction of the railroad as aforesaid been in violation of the provisions of the act just cited? This is the only question in the cause. Its proper determination rests upon a proper interpretation of the words of the act. This interpretation, the plaintiff contends, should be fullest in favor of the land owner, and that anything short of this would but defeat the manifest purpose of the legislature in imposing such a restriction. He submits, therefore, that the word “house” as used in the act should be taken to mean not merely the inclosure of the four walls of a dwelling, but “such amount of land surrounding it as would afford a reasonable enjoyment and occupation of the house, together with the necessary and convenient access to the same from the public highway — in short that the curtilage is part of the house.” In support of this he cites a number of cases determined in both the English and American courts, involving the Land Clauses Consolidation Act, 8 & 9 Victoria, the Mechanics’ Lien Laws, and the criminal law, wherein the word “ house ” has received the construction thus contended for; claiming that under these decisions, the defendant having constructed its railroad through the curtilage of the plaintiff, has taken for its purposes that which is exempt by act of assembly. To this the defendant makes answer that the gardens and other lands of the plaintiff occupied by its railroad are in no wise a part of the house, that they lack even the essential feature of a curtilage appurtenant to a dwelling, viz., that it should be in the same inclosure with the house, and that in construing the term “ house ” it is no aid to inquire as to what passes by implication in the conveyance or devise of a dwelling-house, nor as to the width of significance of the word as it appears in the Mechanics’ Lien Laws; since in the one case the extent of the conveyance or devise depends upon the intention of the parties, and, in the other, the ground adjacent to the building and necessary for its reasonable enjoyment is expressly included within the application of the lien. The defendant also cites the acts of incorporation of various railroad companies, .wherein the terms “ dwelling-house ” and “ out-buildings ” are used distinctively and in no wise synonymously. In the determination of this cause, however, we are happily relieved from dependence upon any of the authorities cited, which at best have but an indirect application. The Supreme Court has very recently, in Swift and Given’s Appeal, 111 Pa. 516, interpreted for us that portion of the act of 1849 before cited, as follows: “ It certainly does not mean that the prohibition extends only to the preventing the railroad from actually passing ‘ through ’ the dwelling-house. When the latter is occupied by the owner thereof, the statute gives it all the protection necessary for its reasonable enjoyment as a dwelling for the OAvner and his family. , This necessarily includes some curtilage connected therewith. The exact extent of that curtilage cannot be defined by any arbitrary rule as to distance. As each case arises, the right of the owner and occupier of the dwelling-house, against the hostile location, of a railroad, must be determined by a consideration of what is necessary for a reasonable and proper enjoyment of the house as a residence in view of its location and surroundings.” Judged by this rule we do not think the construction of the railroad as aforesaid is in violation of the statutory provision. The facts of the case under consideration are, to be sure, very much more in favor of a different conclusion than were the circumstances of Swift and Given’s appeal. The location of the railroad in question is in front of the dwelling and near to it. It occupies a large part of the vegetable garden in cultivation. It crosses the carriage-way leading to the dwelling, separates the latter from the spring-house, crosses some ground planted with fruit trees, which are thereby destroyed, occupies a cattle lane leading from the barn to the spring-house, and passes within a few feet of the corner of the barn. That great damage has been done to the plaintiff’s property there is no doubt, and yet does the situation come within the prohibition of the act ? The railroad is at the nearest point more than one hundred feet from the dwelling, and in the opinion of the master does not materially interfere with the access thereto. The route of the carriage-way is unchanged, and when the grade is altered as proposed, the approach to the dwelling will practically be as good as heretofore. The distance to the spring-house, passing down the carriage-way, and under the railroad bridge, has not been materially increased, nor the way thereto made more difficult, nor has the use of the spring-house been otherwise interfered with. The foot of the embankment slope is within five feet of the barn wall. The track of the railroad is at the nearest point fifty feet distant from the barn. Further than this the use of the latter is not interfered with. The risk of fire from passing engines, or the possibility of horses being frightened thereby, is not, we think, such an interference with use as is prohibited by the act. The latter, in the master’s opinion, must be such an interference as amounts to almost absolute destruction. The obstruction of the cattle lane will necessitate, either the expenditure of more labor in raising water in tbe barnyard for the use of the stock, or the employment possibly of additional help to bring the. stock by the carriage-way to the trough at the spring. The use of the latter has been made inconvenient, but it is inconvenience only, and not deprivation. The vegetable garden and ground occupied by fruit trees are, as to the dwelling, separate and distinct inclosures. They are, therefore, not a part of the curtilage which Bouvier defines as “the inclosed space immediately surrounding a dwelling-house, contained within the same inclosure,” and hence, even in view of the contention of the plaintiff, are no more exempt-from occupation by a railroad than any other portion of the plaintiff’s grounds more remote from the dwelling. For the property in question, the plaintiff, by reason of the quiet and comfort afforded, as also the fact that children and grandchildren have there grown up, and are growing up about him, has very naturally formed a strong attachment, and money would therefore afford but very inadequate compensation for the very great injury sustained by the construction of the railroad as aforesaid. But, unfortunately, this is the only medium of compensation known to law. Even the violation of the most tender and sacred relations is measured by the same standard. To prevent the construction of a railroad as located upon the ground of the plaintiff, would be to exclude such public improvements practically from all populous districts. We do not think the prohibition of the act is so far-reaching as contended for by the plaintiff. For all expenses, inconvenience, and damage sustained by him he is entitled of course to compensation under the act. Exceptions having been filed before the master, he made a supplementary report finding the following facts in addition: 1. That the spring-house of the plaintiff is used by him for the storage of milk, butter, and fruit used by the family, and that the pipes through which the water from the spring is shipped to the dwelling are covered by the railroad embankment. 2. That the occupation of the premises of the plaintiff is without plaintiff’s consent. There is in evidence no declaration of this fact, but the inference from the whole proceeding is, in the opinion of the master, sufficiently strong to warrant his finding, as such. Further than the foregoing the master sees no reason to add to or otherwise change his report. The report as modified, with the exceptions, then came on for final hearing, and on December 6, 1886, the court, Clayton, P. J., confirmed the report and entered a decree dismissing the bill. Thereupon the plaintiff took this appeal, specifying many closely related errors, the most important of which were the following: 2. The learned court erred in affirming the report of the master, because said report is based upon the finding of the master that the only medium of compensation known to the law is damages for the interference with the quiet and comfort of the plaintiff’s home and dwelling-house, the master using this language: “For the property in question the plaintiff, by reason of the quiet and comfort afforded, as also the fact that children and grandchildren have there grown up, and are growing up about him, has very naturally formed a strong attachment, and money would therefore afford but very inadequate compensation for the very great injury sustained by the construction of the railroad as aforesaid. But unfortunately this is the only medium of compensation known to the law.” 6. The learned court erred in affirming the report of the master, as one of the elements thereof was his opinion that the term “curtilage” was restricted to “the enclosed space immediately surrounding a dwelling-house contained within the same enclosure,” and that as the plaintiff’s vegetable garden and ground occupied by fruit trees, were as to the dwelling separate and distinct inclosures, they were therefore not a part of the curtilage.
119 Pa. 297Appeal of Taylor (1888)
Appeal from the decree oe the orphans’ court oe delaware COUNTY. No. 183 July Term 1887, Sup. Ct. On December 6, 1886, upon the petition of Ann Dickinson, a daughter and devisee of Rebecca Fawkes, proceedings were begun for the partition of certain lands, the real estate of said Rebecca Fawkes, who had died on or about March 20,1855, leaving a will, by which she had devised the lands in question to her daughter Sarah. Fawkes for life, remainder to her other daughters and the children of such as might have died. John F. Taylor and James Lewis were constituted the executors, of said will. Mr. Lewis had been dead for several years. The proceedings for partition had so advanced that on the return of the usual rule upon heirs and parties interested, on June 20, 1887, all declined to accept or bid upon any part of the real estate, when the petitioner’s counsel moved that an order of sale be issued to John F. Taylor, the surviving executor. Thereupon L. Morris Lewis and others, distributees representing more than one half of said estate, filed a petition protesting against the issuance of the order of sale to Mr. Taylor, upon the grounds, that, as shown by the records of the office of the register of wills, the said Taylor in the matter of certain trusts committed to his care, and which were specified, had not rendered his accounts in reasonable and proper times; that said Taylor was quite an old man and was not one of the distributees of the partitioned estate; praying the court to appoint James L. Williamson trustee, to make sale of said lands. On June 22, 1887, John F. Taylor filed an answer to the foregoing petition, admitting that the averments thereof were true in words, but showing that in all the estates specified and which had been committed to his care, he was the sole distributee, and he alone was interested in having the accounts thereof filed; at the same time presenting his petition that the order of sale be directed to himself as trustee, tendering sufficient bond for the approval of the court. The same day, on hearing, the court, Clayton, P. J., made a decree appointing Milton Lewis trustee to make sale, and entered the necessary formal decree to that effect. Thereupon, John F. Taylor took this appeal, assigning said decree as error:
119 Pa. 301Phil. & Read. R. v. Hughes (1888)
EUROS. TO THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY. No. 390 January Term 1886, Sup. Ct.; court below, No. 182 December Term 1872, C. P. On September 28, 1872, Jeremiah A. Hughes brought an action in case against the Philadelphia and Reading Railroad Company, to recover damages for personal injuries received. The declaration, filed on June 8,1885, averred that on September 29,1871, the plaintiff was a brakeman in the employ of the defendant company operating the Mine Hill Branch railroad; that while engaged in the discharge of his duty upon a coal train of defendant company, “ by reason of a bad or defective brake, which became either broken or detached by the removal or breaking of a lever pin whereby the same became disjointed underneath the car,” the plaintiff was thrown from the car upon the roadbed, caught beneath the wheels of the moving cars, and received such injuries as to require the amputation of his left leg and four of the toes of his right foot. The plea was not guilty, filed August 12, 1885. At the trial on February 1, 1886, the facts, more fully noted and discussed in the opinion of this court, appeared to be in substance as follows: On the night of September 29,1871, the plaintiff, who for three years had been employed as a brakeman on the Mine Hill Branch road, was upon a loaded coal train consisting of 70 or 80 cars, descending a light grade near Cressona. The night was dark and misty. The train was approaching a signal station and it became necessary to get it under control. Two kinds of brakes were in use on this road and on this train, illustrated on the trial by models No. 1 and No. 2. Both kinds were operated by levers attached to the side of the car: No. 1 without any guard inclosing the lever bar, No. 2 with such an inclosing guard. No. 1 was the style first in use upon the road; while No. 2 was being gradually introduced, as a form of lever brake safer by reason of the fact that, if the lever became disconnected from the brake underneath, it would not drop to the ground with the brakeman on it. On the occasion of the injury, the form of brake on the car from which the plaintiff was thrown was that of model No. 1, and as the plaintiff stepped upon the lever, with his hands upon the rail of the car, the usual way of checking the motion of the train, the lever in some way, whether by the breaking or the dropping of a connecting pin was not known or shown, became disconnected from the brake, the lever-bar dropped and the plaintiff was thrown to the ground, falling partly under the car the wheels of which passed over his left leg and right foot. The cars were all full of coal. The cars of the defendant company were inspected regularly, but it was claimed on the part of the plaintiff that the inspection was superficial and inefficient. The court, Bechtel, J., in his charge to the jury fully and clearly reviewed all the testimony and proceeded : A servant by entering into his master’s service assumes all the risks of that service which the master cannot control, including those arising from negligence of his fellow-servants. In case of an injury to one servant by the negligence of another, it is immaterial whether he who causes and he who sustains the injury are or are not engaged in the same or similar labor, or in positions of equal grade or authority. If they are acting together under one master in carrying out a common object, they are fellow-servants. The master, indeed, is bound to use ordinary care in providing suitable structures, engines, tools and apparatus, and in selecting proper servants, and is liable to other servants in the same employment if they are injured by his own neglect of duty. But it makes no difference whether the master is an individual or a corporation; in either case he is responsible to his servants for his own negligence, but not for that of their fellow-servants. An employer is not bound to indemnify the employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee. It has been long and well settled by our decisions, that a servant assumes all the ordinary risks of his employment. He cannot hold the master responsible for an injury which cannot be traced directly to his negligence. If it has resulted from the negligence of a fellow-servant in the same employment, he must look to him, and not to the master, for redress. The master does’ not warrant him against such negligence. The duty which the master owes to his servants is to provide them with reasonably safe tools and machinery, where that is necessary. When he does this, he does not, however, engage that they will always continue in the same condition. Any defect which may become apparent in their use, it is the duty of the servant to observe and report to his employer. The servant has the means of discovering any such defect which the master does not possess. It is not negligence in the master, if the tool or machine break, whether from an internal, original fault, not apparent when the tool or machine'was at first provided, or from an external, apparent one, produced by time and use, not brought to the master’s knowledge. These are the ordinary risks of the employment which the servant takes upon himself. The master does not warrant his servant’s safely; the servant will be deemed to have assumed all risks naturally and reasonably incident to his employment. The master, however, is under an implied contract to exercise reasonable care to adopt and maintain suitable instruments and means to carry on the business in which his servants are employed, and to select proper servants or co-employees. Having thus explained to you the relations of master and servant, employee and co-employee, we now say to you that, if after a careful and impartial examination of all the testimony, and our instructions as to the law, you come to the conclusion that the defendant performed its duty in providing the plaintiff, its servant, with safe tools and machinery, of such character as was necessary to enable him to perform his duty, or that the plaintiff’s injuries were occasioned by the carelessness or negligence of competent co-employees engaged in the same general business, or that his own negligence contributed to his injuries, then, in either such case or findings, it would be your duty to render a verdict in favor of the defendant. Upon the other hand, if, after such careful and impartial examination, you find that the plaintiff’s injuries were not contributed to by his own negligence, and were not occasioned by the carelessness or negligence of his co-employee, engaged in the same general business, but that the defendant was negligent in not providing him with reasonably safe tools and machinery, and that his injuries were directly and solely due to such negligence of the defendant, then the plaintiff would be entitled to your verdict..... The following are the points submitted by the defendant: 1. The burden of proving negligence is on the plaintiff. Answer: We affirm this. 2. That the rule of law as to a passenger and an employee of a railroad company is different. In a suit by an employee against the company for injuries, or by his representatives, in case of loss of life, negligence cannot be inferred, but must be affirmatively proven by the plaintiff; and in the case of a passenger the presumptions are against the company, but the presumptions are against the employee, if he is hired by the ■company, and in his regular employment at the time of the accident or injury. Answer: We affirm this. 4. That where the same railroad company hire the men to inspect the cars, and hire men to move trains, as brakemen and others, then the inspectors and brakemen are fellow-servants, and if one be injured or killed through the fault or negligence of the other, there can be no recovery against the company, unless the master has employed unfit fellow-servants, or has retained them in his employ after knowing them to be unfit, or after he should have known them to be unfit. Answer: To constitute-one employee a co-employee or fellow-servant with another it is. not necessary that they should both at the time be engaged in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purpose. As it was a part of the duties of the car inspectors to inspect the cars upon which the plaintiff engaged to act as brakeman, we think they sustained the relation of fellow-servants to each other, and we, therefore, affirm this point. 5. That there is no evidence in the case to show that the iron in the pin in the brake was bad, or that it was bad when it was furnished to the railroad company. The law presumes that the railroad company defendant, has furnished suitable appliances and safe tools and machinery for its employees, and has employed competent inspectors to inspect their cars and appliances ; and the burden is on the plaintiff, Hughes, to prove that the defendant did not furnish safe tools, machinery and appliances for its railroad, and did not employ competent men to inspect the cars, machinery and appliances. Answer: We affirm this point, except that part which requests us to say that there is no evidence to show that the iron in the pin was bad; we leave you to ascertain what the evidence in this case shows and proves without any opinion from us, and from all the testimony before you.1 6. That there is no evidence in this case to show'that the company knew of any defect in the pin, if there was any defect ; and there is no evidence that the plaintiff in this case ever notified the railroad company of any defect in the pin, or that he ever made any request to be provided with different or other appliances; nor did he make complaint that any of his fellow-servants were incompetent. It should, therefore, be held that the plaintiff, by entering the service of the defendant, and continuing in it for a considerable time prior to the accident, assumed the risks of negligence of his fellow-servants and the risks incident to the kind of appliances furnished him for the performance of his duties, and the plaintiff cannot recover. Answer: No witness testified that the defendant company knew of any defect in the pin, and there is no evidence that the plaintiff ever notified the railroad company of any defect of any kind, or requested that he be furnishéd with any other or different appliances, or made complaint of any incompetency in any of his fellow-servants. In entering the employment of the defendant, the plaintiff assumed all risks naturally and reasonably incident to his employment, and cannot recover for any injuries received by reason of the negligence of any competent fellow-servant. 7. An employee who undertakes the performance of hazardous duties assumes such risks as are incident to their discharge ; and if he thinks proper to accept an employment on machinery and appliances, defective from their construction, or from the want of proper repair, and, with knowledge of the fact, continues in the service, the master cannot be held liable for injury to the servant, within the scope of the danger which both of the contracting parties contemplated as incidental to the employment. Answer: We affirm this. 9. That there is no evidence in this case to show whether, if there was a defect in the pin, it was a latent or a patent defect, and it is, therefore, impossible for the jury to determine the responsibility of the company for the injury to Hughes. If there was a defect in the pin, it may be that it was such a defect as could have been seen by Hughes, the plaintiff, as well as by the defendant; and unless the plaintiff had then informed himself of its condition, he could not recover, unless it be shown that the defendant did actually know of the defect, and that the plaintiff did not. If it was a latent defect, one that could not be seen bj' examination by the eye, then, unless the plaintiff has shown that the defendant was negligent in the furnishing of appliances on the railroad, the plaintiff cannot recover; and, inasmuch as there is no sufficient evidence to show whether the pin broke or fell out, and the pin not being produced, it is impossible to determine from the evidence whether the defect, if there was one, was a latent or a patent one, and the verdict should be for the railroad company. Answer: What the testimony in this case proves, we leave you to ascertain from all the evidence before you. Where the defect from which the accident arises was known, or might, by the exercise of reasonable diligence, have been known to the servant, and he fails to make known the same to his master, or where machinery breaks from an internal, original fault, not apparent when the machine was at first provided, or from an external, apparent one, produced by time and use, not brought to the master’s knowledge, the servant cannot recover. 10. If the jury believe that the pin in the brake was defective, the evidence being that the cars of the company are inspected daily, if the defect was one that could have been discovered by the inspectors and they did not, the defectiveness was because of the neglect of the inspectors ; and these being fellow-servants with the plaintiff, and there being no evidence that the defendant did not exercise ordinary care in furnishing suitable material for the construction and repairs of cars, or in the selection of inspectors, the plaintiff cannot recover. Answer: If you find that the brake pin was defective, and that the defect could have been discovered by the inspectors, but that they were careless and negligent in their inspection, although competent and fit to fill the position of inspectors, then the plaintiff cannot recover from the defendant for any injuries due to such negligence, as it would be the negligence of competent fellow-servants. What the evidence in the case shows, touching the matters mentioned in this point, you must ascertain. 11. There is no evidence in this case that the railroad company did not furnish suitable tools and appliances for the use of their employees, of whom Jeremiah A. Hughes, the plaintiff, was one, at the time of the accident, and the plaintiff cannot recover. Answer: Refused.8 Arguments. 12. That under all the evidence in this case, Hughes, the plaintiff, cannot recover. Answer: Refused.3 The jury returned a verdict in favor of the plaintiff for $2,500, and judgment was entered thereon. Thereupon the defendant company took this writ assigning for error: 1. The answer to defendant’s fifth point.1 2. The answer to defendant’s eleventh point.8 . 3. The answer to defendant’s twelfth point.3
119 Pa. 316Deihm v. Snell (1888)
ERROR TO THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY. No. 232 January Term 1887, Sup. Ct.; court below, No. 204 March Term 1884, C. P. On February 13,1884, there was filed by the defendant an appeal from the judgment of a justice of the peace in favor of John R. Deihm against Jasper Snell, for $56.87, being the balance on a due bill given by the defendant to the plaintiff. At the trial in the Court of Common Pleas on September 21, 1886, the case of the plaintiff having been closed, the defendant offered proofs under his plea of set-off, of the facts following: That on April 9,1875, a sealed agreement was executed between John R. Diehm and Jasper Snell which provided: “ Whereas the said Jasper Snell has this day granted and conveyed unto the said John R. Deihm a part of lot of ground situate in the borough of Pottsville, fronting on Railroad street, as described in the deed of conveyance, for the sum of twelve hundred and fifty dollars. And there being a bond and mortgage due and remaining unpaid on said lot of ground, for the sum of nine hundred dollars and interest thereon, in favor of Doctor A. H. Halberstadt, the said John R. Deihm hereby assumes, covenants and agrees to pay the said bond and mortgage mentioned, in part payment of the consideration money named in the deed of conveyance to the holder of said bond and mortgage, as receipted for by the said Jasper Snell in the deed of conveyance, for the part of lot 80 by 16-| feet fronting on said railroad as described and conveyed to the said John R. Deihm subject to the hen of mortgage and bond of Halberstadt, by deed dated April 9, a. d. 1875.” That, of the $1,250 purchase money for the portion of the lot subject to the mortgage which was sold to Deihm, Snell received in cash $350; that on March 12, 1883, Deihm having failed to perform his covenants contained in the agreement, the mortgage covering the entire iot was foreclosed for $1,167.30, the debt and interest due thereon, and on May 5, 1888, the lot was exposed to sheriff’s- sale and sold to Snell for $2,000, of which sum fl,214.09 was paid to the sheriff in discharge of the debt, interest and costs, Snell himself receipting for the balance ; that, by the failure of the plaintiff to pay the mortgage referred to, the defendant had lost the sum of $267.80, as of the date of the sheriff’s sale on May 5, 1883, being the amount of interest then accrued and unpaid upon the mortgage. The plaintiff objected to the offers proposing this evidence: 1. That, as the cause originated before a justice of the peace, the agreement was not competent evidence, because it involved a transaction in real estate not within the jurisdiction of a justice. 2. That, as this was an appeal by the defendant, the court was limited by the jurisdiction of the justice, and the setoff being over $300 was inadmissible. The objections were overruled, the evidence admitted, and under the instructions of the court, the jury found a verdict in favor of the defendant for the sum of $254.83. A motion for a new trial having been entertained and subsequently argued, on December 20, 1886 the court, Bechtel, J., disposed of the same by the following opinion : The defendant’s claim of setoff arises out of a contract concerning the sale of real estate, and the plaintiff claims that the justice has no jurisdiction of the claim, and as a consequence it could not be offered in evidence in the Common Pleas. Snell sold Deihm a half lot for $1,250, and received $350, and for the balance Deihm assumed the payment of a mortgage of $900, which mortgage covered the property Deihm bought and the remaining half lot of Snell. Deihm received a deed and entered into possession of the lot, and continued in possession for some years, when it was sold by the owner of the mortgage together with the other half of the lot, owned by Snell. Deihm received everything that Snell sold him or agreed to sell him, and consequently never disputed his liability to pay the mortgage, but upon the contrary paid a portion of the interest due thereon. The 1st section of the- act of March 20, 1810, 5 Sm. L. 161, is in this language: “ The justices of the peace of the several counties of the commonwealth shall have jurisdiction of all causes of action arising from contract, either express or implied, in all cases where the sum demanded is not above one hundred dollars ; except in cases of real contracts, 'where the title to lands or tenements may come in question, or action upon promise of marriage.” Our attention has been directed to numerous authorities, in which this section has been considered. These decisions show that the exception to this section excludes from the jurisdiction of justices, every suit on a contract concerning or in any way connected with realty, whether it be to enforce payment of purchase money, or to recover back what has been paid by the vendee after rescission of the agreement, or though it be on a note given in consideration of an easement: Lauchner v. Rex, 20 Pa. 468. Whether or not Snell’s claim of set-off comes within the exception of this section of the act of 1810, or any of the decisions under it, does not seem entirety clear, for Snell had conveyed to Deihm the property he sold to him, and receipted for all the purchase money, and actually received 'all over the amount of the mortgage. The mortgage was a lien on the lot and Deihm’s purchase was subject to it, and Snell had no claim whatever upon Deihm, until after he had been compelled to pay the mortgage, by reason of Deihm’s default. Snell’s claim exists only by virtue of Deihm’s covenant under the agreement of April 9,1875. The case in this respect is to some extent like that of Helfenstein v. Hurst, 15 Pa. 358. Helfenstein held a mortgage on the property of Hauss, and Hurst held a judgment of $200 after it; Hauss’ property was sold and bought by Hurst’s administrator, and it was agreed that Helfenstein should have it at $1,500 and pay $100 on Hurst’s judgment which was not reached by the fund; Helfenstein was substituted as the purchaser at the sheriff’s sale in place of Hurst. Hurst subsequently sued Helfenstein before a justice,-and it was claimed that the justice had no jurisdiction under the act of 1810. Though this judgment was a lien on the real estate at the time of the sale and entered into the transaction by which Helfenstein was made the purchaser and acquired the title, yet the jurisdiction was sustained, and it was treated as a contract to buy and sell a judgment, without regard to title. But if Snell’s set-off be regarded as a claim arising out of a real contract, does it follow, that he cannot avail himself of it in the Common Pleas, because it is excepted from the jurisdiction of the justices ? This really is the important question in this case. What is it that determines whether or not a justice has jurisdiction under act of 1810 ? Surely the character of set-off that a defendant may present, cannot decide whether or not the justice may take jurisdiction. It is the plaintiff’s demand that must be considered in determining this question, and it is his demand that is set forth upon the record of a justice to show the jurisdiction. In this case the justice had jurisdiction of the plaintiff’s claim, and the appeal to this court brought up a proceeding in which the justice had jurisdiction both of the person and the subject matter. We may here remark that the claim of set-off exceeds in amount the jurisdiction of the justice, being beyond three hundred dollars. Hence if free from the other difficulty, it could not have been presented to the justice on tiffs account, unless it had been divided. Dividing a defendant’s setoff, and submitting a part thereof to defeat the plaintiff and then suing for the balance, not only tends to confusion, but to multiply actions and is not favored. That a plaintiff cannot relinquish a portion of his claim, and thereby confer jurisdiction upon the justice, has been repeatedly decided. But none of our cases hold that when the justice has jurisdiction of the plaintiff’s demand, and the defendant’s set-off is beyond his jurisdiction, that such set-off may not be offered in the Common Pleas. The very reverse was held in Boone v. Boone, 17 S. & R. 386. In that case the plaintiff brought suit before a justice and the defendant’s set-off exceeded the jurisdiction of the justice. In the Common Pleas the defendant offered his set-off, and not only defeated the plaintiff, but in addition obtained a judgment against the plaintiff for $115. This case then determines two propositions, first that the defendant may offer a Sehoff in the Common Pleas that was beyond the jurisdiction of the justice; and second, that he may recover a judgment for an amount greater than that of which a justice could take jurisdiction under the act of 1810. If this may be dpne when the want of jurisdiction is due to the amount of defendant’s set-off, why may it not be done when the set-off arises from a real contract? The Common Pleas is as competent to try the question before a jury called in this case, as it would be, before a jury called in a suit in which this defendant had become the plaintiff. The plaintiff was accorded the same right in this trial that he would be entitled to, as the defendant in another action. Why should the court be required to try two issues when the same result can be produced by the trial of one, and without injury to either of the parties ? We can discover nothing in the act of 1810, or our decisions, that makes this necessary. When this case was called for trial, the plaintiff’s counsel exhibited an assignment of the claim or any moneys that might be recovered, to Jonathan Wright, Esq. This assignment cannot affect the defendant’s right of set-off, nor will the amount certified in favor of the defendant, affect the assignee. In Armstrong v. Lancaster City, 5 W. 68, C. J. Gibson says, “ The court will undoubtedly search out the actual plaintiff where it is necessary, and fix on him the responsibility of a party, by subjecting him to costs, a plea of set-off, or any other liability that may be necessary to protect the defendant;” see also Berks County v. Levan, 86 Pa. 362. We believe, therefore, that the defendant’s certificate will be good as against the legal plaintiff only. And now, December 20, 1886, for the reasons given, motion for a new trial is overruled and new trial refused. Judgment having been entered upon the verdict, the plaintiff took this writ assigning as error the admission of the evidence establishing the defendant’s set-off and the submission of the same to the consideration of the jury.
119 Pa. 324N. Y., L. E. & W. R. v. Lyons (1888)
ERROR TO THE COURT OF COMMON PLEAS OF WAYNE COUNTY. No. 111 July Term 1887, Sup. Ct.; court below, No. 267 May Term 1885. On August 5, 1885, a summons in case was issued by Henry Lyons against the New York, Lake Erie and Western R. Co., to recover damages for personal injuries. The declaration set out the employment of the plaintiff ás a brakeman on the defendant’s road, and his attempt to get upon an engine in motion after flagging the train drawn by it and charged: “ That owing to the unsafe and improper steps, appurtenances and appliances of and on said engine No. 337, and for want of steps of reasonable height, by means of which plaintiff and others so situated and required might get on board, the plaintiff was thrown under the wheels of the car and injured,” etc. At the trial on October 13, 1886, testimony was introduced from which it appeared that the plaintiff had been employed as brakeman and flagman by the defendant company for over two years, when on the night of October 16, 1883, being on a coal train which was laboring he was sent back by his conductor to flag another coal train, drawn by engine No. 337, and have it run slow. After flagging the pursuing train, he boarded the engine and rode on it to Millville, where it stopped for water. He then got off the engine and went ahead after his own train. When he could see beyond a curve, he saw his own train, as he stated, still laboring and started back to warn the pursuing train again. He signaled the engineer of No. 337, but his signal was not seen; and, as the train came up at the rate of four to six miles an hour, he attempted to board the engine again. He caught the tank handle with his left hand, having two lanterns, a red and a blue, in Ms right hand or on Ms right arm, and stepped with his left foot upon the truck about twenty inches high. As he reached his right foot for the tank step, higher, he claimed, than .usual and than it ought to have been, he slipped from the truck so that his right foot was caught under the wheel of the car and so crushed that a necessary amputation followed the next day. It was admitted by the plaintiff that he knew he had the right to bring the signaled train to a full stop, but there was a contention whether he had been instructed by his conductor that it was his duty in flagging trains to get aboard and give the engineer the proper warning as soon as the train was running slow enough, as he testified, which instructions were denied by the conductor. There was also a dispute whether the plaintiff had ever been on board engine No. 387 before that night. The only charge of negligence was in the construction of the steps. The plaintiff, testifying in Ms own behalf, was asked whether he had received any instructions from his conductor, in reference to flagging trains, and if so, what they were. The question being objected to, the answer was excluded, unless some authority on the part of the conductor was shown. The plaintiff then testifying that he never received any instructions as to his duties as flagman, except such as he received from the conductors of the trains on wMch he was employed, the offer was then renewed and again objected to. By the court: In view of the testimony that this witness had no other means of being informed as to his duties, but was under the direct control of the conductor, we think this is evidence. Objection overruled.1 ■ Under this offer the plaintiff testified that Ms conductor had instructed him : “ If they happen to run slow, and they wanted them to run slow, I should flag them and get on and tell them. And if I wanted to bring them to a dead stop, I had the power to do it. Sometimes there is a wreck ahead and we have got to stop them dead; and other times we run them slow.” The court, Seely, P. J., in the charge to the jury, answered certain of the points presented as follows : Plaintiff’s points, inter alia: 3. If the step on the engine tank was so high as to render its use dangerous, and notice of its condition had been brought home to the company defendant, they would be responsible for any injuries arising from its use thereafter, unless the party using it were also negligent or at fault in the matter. Answer: That we affirm. That proposition, we think, recognizes the principle which we have already laid down to you, that the use should be such as the company have a right to expect their employees to make of the appliances. Because we think that if the employees were using the appliances in a way contrary to the known orders of the company, that would be negligence, and such “ fault ” as is mentioned in the latter part of this point.58 5. " If the plaintiff was not at fault, and the negligence of the defendant was the direct and proximate cause of the injury to him, they are responsible for it, no matter how hazardous may have been the nature of the employment. Answer: That we affirm. That assumes that the injury occurred solely from the fault of the defendant, and without any negligence on the part of the plaintiff. If that be true, it is immaterial how hazardous the employment.3 6. If, when the plaintiff attempted to board the engine, he was acting in the discharge of his duties in accordance with instructions received from his conductors, and in accordance with the general custom of flagmen on the road, he cannot be affected, nor his right prejudiced in so doing, by any printed order or rule of the company in contravention of such instructions and general custom, which had never been shown him and to which his attention had never been called. Answer: We affirm this proposition. And yet, we desire you to understand it. It assumes that the plaintiff had no knowledge, or that the rules of the company had never been shown to him, and that his attention had never been called to them. And we say that he would not be concluded by a printed order or rule of the company which had never been shown to him, and to which his attention had' never been called. And we say to you, further, that if you believe that this plaintiff never had his attention called to any rules of the company, and had no knowledge of any place where he might reasonably have access to the rules of the company in order to inform himself of his duty, then he had a right to take instructions from the conductors as to what his duty was. If the company furnished him no other means of informing himself, we think they should be held responsible for the instructions given to him by the conductors.4 7. If the jury believe from the evidence that the plaintiff acted in good faith, believing it to be his duty to get on board the engine No. 337, at the time and in the manner stated by him, and at the time he did so the engine was moving at a rate of speed so moderate that a man of ordinary prudence, acting in the same capacity and under the same circumstances, would not have hesitated to make the attempt, he cannot be charged with negligence in so doing. Answer: We cannot affirm this point without qualification. Good faith is not enough. If you believe that the rules were placed where he had access to them, and his attention was called to them, and he was requested to inform himself as to these rules, his failure to do so might be negligence. He might refuse to inform himself of the rules of the company, and then in entire good faith, act in violation of those rules. If he did his duty with reference to informing himself of the rules of the company, and what was required of him, and then acted-in good faith and in the belief that he was doing what the company required of him, then we think tins point should be affirmed. But we think that the point cannot be affirmed without this qualification, as to his having performed his own duty in regard to informing himself as to the rules.5 Defendant’s points, inter alia: 3. An employer is entitled to assume that his employee will not needlessly expose himself to manifest dangers in the performance of his duties, and if, being a person of ordinary intelligence, he does so, the employer is not responsible for the consequences, and if the jury believe the plaintiff did so expose himself, he cannot recover. Answer: That is correct. No person has a right to expose himself, needlessly, to dangers that are manifest, and then call upon some other person to compensate him for his injuries so received. 4. That the plaintiff having admitted that he knew the step in controversy was so high as to render it difficult to get on to the train, and having continued to. use it in such condition, without giving notice to his employer of its unsafe and improper condition, and asking him to repair it, he voluntarily accepted the risk, and in case of injury from such cause cannot recover damages therefor. Answer: This matter is for you. You have the plaintiff’s own statement as to his getting upon the train on the trip down to Port Jervis, near Stairway. A person who is employed about a matter which is attended with danger, who discovers some imperfection in the machinery or appliances which he is required to use, should report the defect to those whose duty it would be to repair it. It might be necessary for the employee to still use that machinery before it could be repaired. If he did so use it, and the condition of the machinery indicated extraordinary danger, the duty would rest upon him to use extraordinary care to protect himself. In other words, a man who is required to be employed about machinery, the condition of which is unusual, and such as to occasion unusual danger, is bound, on his part, in using it, to exercise unusual care, and if, neglecting the unusual care, he should be injured by such machine or appliance, then he would be guilty of contributory negligence, and could not recover. Now you have the evidence as to his getting upon this train at Stairway, and you have the evidence as to his getting upon this train before it reached the water tank at Millville. Did he, from his experience with this engine, know, at the time he attempted to get upon it when he was injured, that the step was so arranged as to require unusual caution upon his part, in getting upon it? Did he know it at the time ? If he did, he ought to have used unusual caution. Did he use such caution, and such care, as you think a man of ordinary prudence and judgment should have been required to use, under the circumstances ? If he did not, he would be guilty of contributory negligence, and cannot recover.6 5. The plaintiff having testified that he knew the condition of the step, and the difficulty of getting on to it, and having attempted to get on the train by means of that unsafe and inconvenient step, in the dark, while the train was under way, when he admits he had the power and right to stop it, is guilty of contributory negligence, and cannot recover, and therefore the verdict must be for the defendant. Answer: We refuse that point, because it requires us to take this case away from you, and to determine the question of contributory negligence ourselves. We think that, under the evidence, that question must go to you for determination, as a question of fact.7 6. The plaintiff having shown that he attempted to board a moving train to which he did not belong, and in the dark, while he admits that he had the right to compel it to stop until he got on, and having shown nothing in the rules and regulations of the company defendant, requiring him to do so, voluntarily placed himself in danger, and if thereby injured he is guilty of contributory negligence, and cannot recover, and the verdict must be for the defendant. Answer: We decline to affirm this point. It requires us to give you positive instructions as to what your verdict must be, which we decline to do in this case.8 8. Any instructions by a conductor, in opposition to the general rules of the company, unless special authority is shown to give such instructions, cannot bind the company. Answer: We say as to that point that the employees of the company have a right to be informed of their duties, afid the manner in which they shall be discharged. If the corporation provides the reasonable and necessary means of communicating to employees the rules regulating their conduct, they should be governed by those rules of the corporation. If the corporation does not use such means as are reasonable and necessary to communicate their rules to their employees, then the employees may take their instructions from such officer as the company choose to put in immediate control over them. And we think, under such circumstances, if you believe the company did not provide the reasonable means of communicating their rules to this plaintiff, then he might take his instructions from the conductors, and he would be protected by those instructions.9 10. That the company defendant, were not bound to so construct their steps as to make it safe for persons to get on and off a moving train, but are only held to make it reasonably safe to get on and off when the train is not in motion, and it being admitted by tbe plaintiff and proved that there was no danger with the step as it was, when the train was stopped, there was no negligence on the part of the defendant, and the plaintiff cannot recover. Answer: In an absolute sense, taking into consideration the printed rules of the company, this proposition is correct and sound. It needs to be qualified by saying to you that if the company did not provide the means whereby the plaintiff could have knowledge of their rules, and he was instructed by the conductor that he should board moving trains, as soon as he could, when they slowed up, then we think that the company should be held to the measure of responsibility which would follow those instructions. But if, on the other hand, the company communicated to their employees their rules, or did what they could reasonably be asked to do with reference to communicating them, then the emyloyee should be held by those rules, and the company was only bound to so construct the step that it would be reasonably safe when used in accordance with their rules regarding the running of trains and the employment of flagmen.10 11. The plaintiff being an employee in a responsible position, was bound to make himself acquainted with the rules and regulations, and if he failed to do so, he cannot set up his ignorance of them as an excuse for not obeying them. Answer: We affirm that proposition, if you find as a fact, that the company did their duty in placing the rules where he had reasonable access to them, and could inform himself. If the company did not place the rules within his reach, then we cannot hold that he was bound to inform himself of them, but if they placed them where he had access to them, and he was requested to inform himself, then it was his duty to examine those rules, and ascertain what they were.11 The jury returned a verdict in favor of the plaintiff for $6,000. On the hearing of a motion for a new trial, an order was entered that the rule be made absolute unless the plaintiff filed an abatement of $1,000, which was done and judgment entered. Thereupon the defendant took this writ assigning for error: 1. The admission of the plaintiff’s offer.1 Arguments. 2-5. The answers to the plaintiff’s points.** to 5 6. The answer to the defendant’s fourth point.6 7. The answer to the defendant’s fifth point.7 8-11. The answers to defendant’s points.8 *°11 12. The submission of any question to the jury.
119 Pa. 337Appeal of Schwartz (1888)
APPEAL FROM THE DECREE OF THE ORPHANS’ COURT OF BERKS COUNTY. No. 362 January Term 1887, Sup. Ct.; court below, No. 19 Argument L. 1885, O. C. At tbe adjudication, on June 4, 1886, of tbe accounts of Adam H. Scbwartz, executor and trustee, a contention arose upon certain provisions of tbe will of Jacob L. Moyer, deceased, dated August 15,1881. Tbe testator died February 2, 1882; tbe will was duly admitted to probate and tbe provisions thereof material to this cause were as follows: 9. Item. [I give and devise unto Adam H. Scbwartz all that certain forunstory brick store stand, dwelling bouse, and lot or piece of ground, 725 Penn street, in tbe city of Reading, containing in front twenty feet and in depth two hundred and seventy feet; and also all that certain three-story brick store stand and lot of ground, No. 818 Penn street, containing in front twenty feet and in depth one hundred and sixty feet, to have and to hold said properties in trust in manner following, to wit: a. The said Adam H. Schwartz, or his successor, shall rent the same (if not leased at the time of my decease) upon such terms and conditions as may be advantageous to my widow and children; and out of the rents he shall keep it in good repair, pay taxes, and insurance. 5. The said Adam H. Schwartz, or his successor, shall pay unto my dear wife as long as she remains my widow, for the support of herself and such of my children as may be living with her, the sum of one hundred dollars monthly, and if any balance of said rents is remaining, he shall invest the same for the use of my children as is hereafter directed. c. Upon the decease of my wife the rents aforesaid, after payment of repairs, taxes, and insurance, shall be divided quarterly among all of my said children, in equal shares, or their heirs, until the year of our Lord one thousand nine hundred and one, at which time my youngest son will be twenty-three years old. My desire is then, if a majority of my said children, or their heirs, deem it advantageous, that said two properties be sold, that thereupon the said Adam H. Schwartz, or his successor, shall sell the same, and the proceeds of said sales shall be invested upon real estate securities for the benefit of all my children during their natural life; they to receive interest semi-annually, and upon their decease the principal to their children absolutely.]3 11. Item. [I order and direct that in case my son John should continue in the leather business, and he need additional capital to carry on the same, my said executor shall advance him such sums as he may require, not exceeding, with what sums I may advance him in my lifetime, eight thousand dollars, he to pay interest on said sum advanced, semi-annually, and after the third year he shall pay unto my said executor on said principal sum, annually, at least one thousand dollars. My hereinafter-named executor, as long as my son John shall be indebted to my estate, shall have the privilege of making any examination of his business affairs, and if he finds that he is neglecting his business and is not progressing, that thereupon my said executor is authorized and directed to sell out his interest, and any loss which may be sustained shall be deducted from John’s share. Should it be the case that John would be unsuccessful in business by reason of neglect and bad habits, and the moneys due my estate would have to be collected, then he shall only receive the interest upon his share in my whole estate during life.] 4 14. Item. [All the rest and residue of my estate shall be invested upon real estate security by my said trustee and executor, and shall be held and disposed of by him as follows: a. He shall pay unto my daughter Ellen, when she attains the age of twenty-one years, the sum of five thousand dollars. b. He shall pay unto my son Charles, when he attains the age of twenty-three years, the sum of five thousand dollars. e. He shall pay unto my daughter Anna, when she attains the age of twenty-one years, the sum of five thousand dollars. d. He shall pay unto my son Jacob L., when he attains the age of twenty-three years, the sum of five thousand dollars.] 4 15. Item. [I hereby order and direct, that as soon as my son John can satisfy my said executor that he is worth clear of debts the sum of eight thousand dollars, that thereupon he shall pay him the sum of five thousand dollars. I make this provision for my son John, because he has an opportunity in an established business, which I cannot give my other children.] 4 16. Item. [All moneys remaining not herein otherwise disposed of when my youngest child attains the age of twenty-three years shall be equally divided among all my children.] 4 18. Item. In case any of my sons before attaining the age of twenty-three years, or my daughters before attaining the age of twenty-one years, my wife and executor should be of opinion that by bad habits and profligacy any one of said children were unfit to have the principal sum of their legacies, then I order and direct such child’s share shall be invested upon real estate security, the interest whereof shall be paid unto them during life, and after their decease to their heirs. 19. Item. In case any of my children should die under the age of twenty-one years without issue, such child’s share shall go to the surviving children or their heirs. Testimony was taken from which it appeared that on June 1, 1881, the testator’s son John had received from his father $6,000, with which he had gone into the leather business with Mathias Moyer, his uncle. The testator held John’s notes for this $6,000 at the time of his death on February 2,1882. In February, 1883, John sold his interest in the leather business to his partner, who lifted said notes and paid to John $1,500 in cash. No advancements or payments were ever made to John by his father’s executor, and soon after going out of the leather business he became insolvent and so continued. The adjudication found a balance in the hands of the accountant as executor of $11,286.86, and in his hands, consisting of accumulations from the rents of premises Nos. 725 and 818 Penn street, the sum of $1,250. In determining the distribution of these funds, the court, Schwartz, P. J., ruled: Under the terms of the will, Adam H. Schwartz is to rent the trust estate, keep it in good repair, pay taxes and insurances out of the rents, and to pay the widow, as long as she remained his widow, for the support of herself and such children as may be living with her, one hundred dollars monthly; and if any balance of said rents remain, he shall invest the same for the use of his children, as in the will aftenvards directed. The balance thus accumulated is not disposed of by express words in the will. It may, however, be inferred that the intention of the testator was that the children should enjoy the use and benefit of the investment of the balance or balances for and during their natural lives, and that their children should have the principal or corpus absolutely. Upon the decease of the widow, the rents, after payment of taxes, insurance, and repairs, are to be divided quarter yearly among the children in equal shares until the year 1901, when the youngest child shall be twenty-three years of age. In 1901 the trust estate, if the majority of the children agree, shall be sold, and the proceeds invested for their benefit during their natural lives, and the interest paid them semi-annually, and after their death the principal to their children. And in case of the marriage of the widow she shall receive only fifty dollars per month during her natural life, and the remaining fifty dollars shall be used and expended for the support of such children of the testator as then remain with her and are under the age of twenty-one years. By these provisions of the will there will be accumulations of the income during the lifetime or widowhood of the widow, or until the year 1901, when the youngest child will arrive at the age of twenty-three years; and in either event the accumulation will be for a period longer than that at which the child or the children attained their majority, or a period of twenty-one years. The extreme time allowed for accumulations by the act of April 18, 1858, P. L. 503, is twenty-one years, with the additional allowance for the ordinary period for gestation. In this case it is indefinite, depending on the one hand upon the life or widowhood of the widow. It may be for a longer or shorter period than twenty-one years. The possibility of its being for a longer period renders the provisions in the will void and of no effect: McKee’s Appeal, 96 Pa. 277. So also, on the other hand, these accumulations are for a period longer and other than during the minority of the children. Indeed, John was twenty-three years old at the time of the decease of the testator. This is also prohibited by statute: Washington’s Estate, 75 Pa. 102; Carson’s Appeal, 99 Pa. 325. The accumulations at this time, as per statement attached, amount to $1,250.26. The same are to be disposed of as if the decedent had died intestate: Grim’s Appeal, 109 Pa. 391. The act of 1853, relating to matters of this kind, says: “And in every case, where an accumulation shall be divided otherwise than as aforesaid, such direction shall be' null and void in so far as it shall exceed the limits of this act, and the rents, issues, interests, and profits so directed to be accumulated, contrary to the provisions of this act, shall go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed.” This obviously means that the accumulations in this case, should pass to the widow and heirs, as in case of intestacy. Upon proceeding to the examination of the statement on the trust account, the same appears to be correct. The balance in accountant’s hands as found by the adjudication on his administration account being $11,286.86, the accountant asked for a credit of $5,000 for legacy paid to Ellen Lewis. This cannot be done or allowed at this time. It is, however, true that the will directs such payments to his children, to his boys when they attain the age of twenty-three years, and to his girls at the age of twenty-one years. At this time the testator’s son John and daughter Ellen have attained said ages respectively. The said John’s legacies are clogged by other conditions and limitations, and the fund must remain in the hands of Adam H. Schwartz, as trustee during the lifetime of said John, and interest be paid to him. The said trustee is, however, allowed credit for payment to said Ellen for one fifth of said balance, viz., $2,257.37. He is also ordered and directed to invest for the special benefit as trustee of said John the like sum of $2,257.37, and that he invest the balance of said fund, viz., the sum of $6,772.11, for the three children now continuing in their minority, and in accordance with the intent of the will as construed by us. It is ordered and decreed that this opinion be made a portion of the former adjudication on this estate.— Under the foregoing ruling the court ordered a distribution: (1) Of the balance by the administration account; to Ellen Lewis, $2,257.37; to Adam H. Schwartz, as trustee of John Moyer, $2,257.37, and to Adam H. Schwartz, as trustee for the three minor children, $6,772.11. (2) Of the accumulation fund, one third was awarded to the widow, and the remaining two thirds equally divided among the five children, including John. To this adjudication and distribution various exceptions were filed by the accountant, which, so far as material to the questions here decided, sufficiently appear in the opinion filed February 1, 1887, Schwautz, P. J., which was in part as follows : During the pendency of these exceptions, Ellen M. Lewis presented her petition to court praying to have the report opened for the purpose of offering evidence showing the value of all property available for the payment of the $5,000 to each of testator’s children. The applications were granted. At the time fixed for the further hearing it was shown that, in addition to the assets in the account, the following described property was available to satisfy said legacies, viz.: An undivided one third interest in certain real estate, located near High Bridge, in the state of New Jersey, estimated to be worth $2,000; a two-story brick dwelling house, situated at Reading, Pa., worth about $1,500; two adjoining lots of ground, also at Reading, Pa., of the probable value of $500, and a stock interest in the Phcenix Plumbago Company of the appraised value of $4,000; altogether amounting to $8,000. The real property will probably bring, if sold, the values put upon it by the witness, but no testimony was offered showing the actual or real value of the Plumbago stock. In the distribution towards said $5,000 legacies, the court should not take said stock into account. The only other question of importance for consideration under the exceptions, depends upon the construction of the will in so far as the same relates to John Moyer, a son and beneficiary under it. The testator’s intent on this point can only be gathered from the four corners of his will. The testator in item 11 provided among other things that his executor should loan his son John out of the funds of the estate, if deemed necessary to successfully carry on his shoe and leather business, a sum not exceeding $8,000, with that advanced by himself in his lifetime, and fixed the payment of interest thereon and the repayment of the principal; and further directed as follows: “ Should it be the case that John would be unsuccessful in business by reason of neglect or bad habits, and the moneys due my estate would have to be collected, then he shall only receive the interest upon his share of my estate during life.” In item 14 he directs his executor to invest Ms estate not otherwise disposed of on good real estate security, and directs him to pay out of said fund to Ms four other children, two sons and two daughters, each the sum of $5,000, to his sons at the age of twenty-three years, and to his daughters at the age of twenty-one years. In item 15 he orders his executor, as soon as he is satisfied that his son John is worth $8,000 “ clear of all debts,” to pay to him the sum of $5,000, and explains that he added this condition to the legacy for the reason that he had given Mm “ an opportunity in an established business which I cannot give my other children.” By the 16th item he bequeaths in equal shares to all of his children, any residue that may remain undisposed of after his youngest son, Jacob L., shall have attained the age of twenty-three years. By the 18th item of his will it is made and provided as follows: “In case any of my sons before attaining the age of twenty-tMree years, or my daughters attaimng the age of twenty-one years, my wife and executor should be of the opinion that by bad habits and profligacy any of said children were unfit to have the principal sum of their legacies, then I order and direct such child’s share shall be invested upon real estate security, the interest whereof shall be paid unto them during life, and after their decease to their heirs.” There does not appear to be any other item or clause in the will bearing upon the $5,000 legacies to each of the children. It is evident that it was the testator’s intent that his widow and executor should, previously to the payment of said legacies of $5,000 to any of his four younger children, pass upon his or her fitness to receive it. On finding the one under consideration to be of good habits, economical and frugal, that then the corpus pass to him or her. But if, on the contrary, they should find him or her to be of bad habits and profligate, that then the executor should invest it, secured on real estate, and pay the interest to him or her during life, and after death the principal to the heirs at law. It is equally evident that he did not intend that any of his children, including John, should receive the corpus of the legacies, except upon the showing of good habits and of frugal character. John’s legacy is, however, further clogged by the additional condition that he be possessed of an estate in his own right, clear of all “debts,” of the value of $8,000, preceding the right to receive this legacy. The testator clearly.intended that all his children should participate equally in his estate. The only distinction he made was that John should not be entitled to the possession of the $5,000 legacy until he could show an estate of his own of the clear value of $8,000. It appears to have been the testator’s intent that wherever and whenever his children, or any of them, failed to meet the conditions of his will, the shares of those thus failing should remain in his executor’s hands, be safely invested by him on real estate, and the interest thereof paid to the party so failing, during life, and after his death the principal to be paid to his next of kin and heirs at law. In my opinion, and I so decide, that the said legacy to John Moyer of $5,000 is not forfeited by his inability to show an estate of $8,000; but that on such failure it becomes the duty of the executor to invest the same securely, and pay the interest to him as often as he receives the same, for and during his life, and after his death the principal to his heirs. It should, however, be remarked that the fund to meet said legacies of $5,000 to each of decedent’s five children appears to be insufficient at this time to pay said legacies in full. The distribution on this part of the will, will be such as to protect the executor. It should be further found, and I so find, that the legacy of said John Moyer is due and payable under the provisions of decedent’s will, but that the legatee is unable to show an estate as required by the will. Hence it becomes the duty of the executor to make the investment contemplated by the will for the use of said John Moyer. . . . . [The accountant is now allowed a credit of $3,000 for the payment of the legacy of $5,000 to Ellen M. Lewis.]8 [And is ordered and directed to set apart the sum of three thousand dollars, and invest the same safely on good real estate security,1 and pay the interest thereof as often as he receives it to said John Moyer until he shall demonstrate to him and Mrs. Mary Moyer, widow of the decedent, that he is worth $8,000 clear of all liabilities or debts, when he may, if the said John shows that his habits are good, and that he is frugal and not prodigal, pay the principal to him.]1 ... . With these modifications the adjudication of the trust estate is confirmed. Thereupon the accountant took this appeal, assigning as error: 1. The order directing the investment of $3,000, for the benefit of John Moyer.1 2. The refusal to allow to the accountant a credit of $5,000, the amount of the legacy paid to Ellen M. Lewis.8 3. The distribution of the income fund, $1,250.26, said fund being an accumulation under item 9 of the will.3 4. The construction of items 11, 14, 15,16, of the will.4 5. The construction of the will as a whole.
119 Pa. 350Miller v. Imhoff (1888)
APPEAL EROM THE DECREE OE THE COURT OE COMMON PLEAS OE NORTHAMPTON COUNTY. No. 89 July Term 1887, Sup. Ct.; court below, Vend. Ex. No. 13 August Term 1886, C. P. On August 9, 1886, certain real estate of John Imhoff having been sold at sheriff’s sale under a venditioni exponas issued from a judgment against him in favor of Wm. E. Miller, upon the petition of the latter, setting forth that he was a lien creditor and had purchased the property sold and that the defendant claimed out of the proceeds the sum of $285.15 on account of his right under the exemption law; that personal effects belonging to the defendant out of which the exemption might have been obtained had been fraudulently concealed and then removed from the state by him to hinder a levy upon them under a fieri facias issued, $400 of the purchase money was ordered into court and an auditor appointed to distribute the fund according to law. On February 21, 1887, the auditor, Mr. J. Gt. Diefenderfer, made a report finding as matters of fact, in substance, that upon a fieri facias first issued upon the judgment an appraisement had been held under a claim by the defendant for the benefit of'the exemption law, and personal goods to the value of $14.85 set apart to Mm on account thereof, all the other goods levied upon being claimed by the defendant’s wife as her own property; that subsequently an alias fieri facias was issued, and when the sheriff was about to levy upon the goods not previously set apart, the object of the writ being to test the title of the wife to them by an interpleader applied for the day the writ issued, the defendant falsely informed the sheriff that the goods had been shipped to New York; that a levy having been made upon the real estate of the defendant, appraisers appointed under his demand for the residue of his exemption reported that the property levied upon could not be divided so as to give the defendant his claim in land; that before the sheriff’s sale the defendant had assigned a part of his exemption claim, to wit, the sum of $107, to Geo. W. Rhoad, not a judgment creditor, to give Mm priority over lien creditors. As matter of law, the auditor, citing Gilleland v. Rhoads, 34 Pa. 190; Strouse v. Becker, 38 Pa. 192; Freeman v. Smith, 30 Pa. 264; Emerson v. Smith, 51 Pa. 90; McCarthy’s Appeal, 68 Pa. 217, and Bowyer’s App., 21 Pa. 214, under his findings of fact more fully appearing in the opinion of this court, denied the right of the defendant to receive the sum of $285.15, claimed as the balance due him under Ms exemption, and reported a distribution awarding the fund in court to the lien creditors. On April 11,1887, exceptions by the defendant in the judgment to tMs report were dismissed by the court, Schuykeb, P. J., the report confirmed and a decree made in accordance therewith. Thereupon the defendant took tMs appeal, assigning the decree as error.
119 Pa. 356Jackson v. Emmens (1888)
No. 120 July Term 1887, Sup. Ct.; court below, No. 28 July Term 1885, C. P. On April 29,1885, Thomas F. Emmens brought assumpsit against John S. Jackson, declaring in the common counts.
119 Pa. 365Vocht v. Kuklence (1888)
ERROR TO THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY. No. 257 January Term 1888, Sup. Ct.; court below, No. 1 October Term 1887, C. P. The declaration in an action of trespass by Frederick Kuklence and Augusta Kuklence, his wife, in right of the wife, against Jacob Vocht and Anna Vocht, instituted on August 8, 1887, averring, that the defendants were at the time, etc., and still were, husband and wife, charged against Anna Vocht the speaking of certain slanderous words to said Jacob Vocht in the presence of Sophia Gerlach and others of and concerning said Augusta Kuklence, laying damages at $5,000. On October 8, 1887, an award of arbitrators had under a rule of reference was filed, “ in favor of the plaintiffs for $15 with costs of suit.” Judgment having been entered, on October 26, 1887, a fieri facias and a capias ad satisfaciendum were issued, whereupon the defendants filed a petition upon which a rule was granted to show cause why the judgment entered' on the award should not be vacated as to Jacob Vocht, and the capias set aside as to both defendants. On December 12, 1887, the court, Schuyler, P. J., filed the following opinion and decree: In an opinion just filed we have set aside the judgment, upon which the present execution is based, as to Jacob Vocht, and it follows that the execution as to him is a nullity. The somewhat troublesome question remains whether a wife may be arrested in satisfaction of a judgment for defamatory words spoken by her during coverture in which her husband is not implicated. The Married Person’s Property Act of June 3, 1887, P. L. 332, provides that damages recovered for a wife’s torts “ shall be payable out of her separate property and not otherwise.” This provision is the natural sequence of the other provisions of the act, whose manifest purpose is to make the wife with a few exceptions, independent of her husband as respects her separate property, thus abrogating the common law rule on the subject. At common law, by marriage the wife’s personal property becomes her husband’s absolutely, and he acquires a life estate in her real property. The wife being thus deprived of all means to respond in damages, it was but the dictate of the merest justice that the husband should be responsible for his wife’s torts. But, by the Married Person’s Property Act the wife is invested with the privileges and powers of a feme sole, and it would seem but reasonable that the husband’s responsibilities should decrease in the same proportion as his rights. When, therefore, the legislature say that damages for a wife’s torts shall be payable out of her separate property “ and not otherwise,” I understand them to mean that the husband shall not be liable for such damages, and nothing more. At common law, husband and wife are jointly liable in damages for the torts of his wife : Wheeler v. Heil, 115 Pa. 487. But the wife’s liability is not joint merely. She is personally liable for a tort committed .by her, unless her husband was both personally present and directed the doing of it at the time: Franklin’s Appeal, 115 Pa. 534. And both may be taken in execution: 3 Bl. Com. 414, Mr. Chitty’s note. I do not discover in the Married Person’s Property Act the slightest disposition on the part of the legislature to abate a jot or tittle of the wife’s common law liabilities. On the contrary, the act furnishes the most pregnant reasons why wives should be held to these liabilities with a firm .hand. As has just been seen the act relieves husbands of all responsibility for their wives’ torts. If, therefore, the act should be construed to exempt wives with no property from liability for their torts, it will be seen that we have here a favored class with a carte blanche to commit torts ad libitum. If an unmarried woman utters a slander against her neighbor, the law compels her to answer in damages to the uttermost farthing, under the penalty of having her body taken in execution, although she may be without a friend in the world; and shall a married woman, with a husband to protect and defend her, be permitted to utter the same slander with impunity ? Is the sting of the lying word, which sometimes kills, any more endurable because the woman, who sends the word forth on its cruel mission, happens, to be able to produce a marriage certificate ? I am unwilling to believe that the legislature intended by the Married Person’s Property Act to confer upon married women the privilege of sanctuary for their torts, and to abandon their less fortunate unmarried sisters to what we are accustomed to call, ironically, the tender mercies of the law. Such a discrimination would be not only without sense or rea-' son to support it, but out of harmony with the genius of our institutions. Nor, in my opinion, does the act furnish the slightest warrant for such a discrimination. It expressly provides that a married woman shall be capable of “ being sued ” for her torts “ in all respects as if she were a feme sole.” Now “to sue ” according to Webster, “is to seek justice or right from, by legal process.” This definition is broad enough to include final process, and that the legislature used the word “sued ” in its broadest sense is manifest from the expression “ in all respects as if she were a feme sole ” with which it is connected. Indeed, since the act relieves the husband of all liability for his wife’s torts, if the wife is exempted from arrest and she has no property, the provision as to the wife’s capability of being sued would be an absurdity, if the right to sue is limited to the service of a summons and obtaining judgment. Under such circumstances the wife and husband both could well afford to laugh at such mummery. The right to arrest irresponsible persons on civil process for slander, although often inadequate and quite as often abused, is still a most valuable one, and all the more valuable, because it furnishes the only remedy that the injured party has. The doors of our criminal courts are closed against all such parties. Unless the power to arrest and punish wrongs of this nature is vested somewhere, no man’s reputation will be safe. By the law thas power is vested in the several courts of common pleas, and it should be exerted with an even hand against all offenders alike, until at least we have a clearer expression of legislative intent to create a privileged class, than that furnished by the Married Person’s Property Act. The conclusion I reach is not in necessary conflict with Whalen v. Gabell, 4 Pa. C. C. R. 187; all that is decided in that case being that a married woman cannot be taken on a capias ad respondendum in an action of slander; for there are many cases in which a defendant may be taken in execution after judgment, though he could not be arrested at the commencement of the suit: 8 Bl. Com., 414. The same reasoning however which induced Judge Thayer in Whalen v. Gabell to quash the capias, would no doubt lead to the quashing of the present capias, and to this extent the decisions in the two cases are in conflict. I regret this exceedingly, but the question upon which we differ is an important one, and, as I understand the duties of my position, I do not feel at liberty to surrender my conviction even to so eminent and able a judge as Judge Thayer is universally admitted to be. It is to be hoped that the question may be set at rest by an early decision of the Supreme Court. Rule discharged. The defendant Anna Vocht then took this writ assigning as error: 1. The discharge of the rule to show cause why the capias should not be set aside. 2. The ruling that under the Married Person’s Property Act of 1887, a married woman might be taken in execution under a capias for a tort committed by her during coverture.
119 Pa. 373County of Northampton v. Herman (1888)
ERROR TO THE COURT OF COMMON PLEAS OF NORTHAMPTON! COUNTY. No. 358 January Term 1888, Sup. Ct.; court below, No. 15 February Term 1888, C. P. As of September 12, 1887, in an action of assumpsit by George F. Herman against the county of Northampton the following case stated was filed: The plaintiff, George F. Herman, was sheriff of Northampton county from January 1,1881, to January 1,1884. That the exhibit A, herewith attached, and made part of this case stated, represents the number of criminal cases in the courts of Quarter Sessions and Oyer and Terminer from February Term 1881, to December Term 1884, both inclusive. That exhibit B, hereto annexed and made part of this case stated, represents the number of jurymen summoned by the sheriff aforesaid, in the Quarter Sessions and Oyer and Terminer, from February Term 1881, to December Term 1884, both inclusive, to wit, 1308. That exhibit C, hereto annexed and made part of the case stated, represents the number of jurymen summoned by the plaintiff, as sheriff aforesaid, from April Term 1881, to January Term 1884, both inclusive, in the Court of Common Pleas of Northampton county. That under sheriff’s fee bill, April 2,1868, P. L. 3, the sheriff of Northampton county was entitled to charge the county for services as follows: Fee on every other (than capital) criminal case, . $1.25 Fee on commitment for any criminal matter, . . 50 For each juror summoned, etc.,.......30 That under sheriff’s fee bill, June 12, 1878, P. L. 187, he was entitled to charge the county as follows : Fee on every other (than capital) criminal case, . $1.00 Fee on commitment for any criminal matter, ... 40 For each juror summoned, etc.,....... 25 That the statement in exhibit A, under “Amount Received,” represents the amount received by the plaintiff during his term of office, from the county of Northampton for criminal cases therein named, upon bills presented by him, and paid by the county in full as -presented. That the said act of June 12, 1878, was on April 12, 1886, declared to be unconstitutional by the Supreme Court of Pennsylvania. If, upon the above stated facts, the court shall be of the ' opinion that the plaintiff is entitled to charge for his services under the act of April 2, 1868, as aforesaid, then judgment to be entered for the plaintiff for §288.15, being the balance of fees unpaid, and costs, for all not barred by statute of limitations. But, if the court should be of the opinion that the plaintiff was not entitled to be paid under the fee bill of April 2, 1868, aforesaid, then judgment to be entered for the defendant with costs. Either party reserving the right to sue out a writ of error. On February 6,1888, the court, Schuyler, P. J., filed the opinion and decree: The facts are as follows: We need not discuss the question here raised, as identically the same question, on a similar state of facts, has been passed upon by an exceedingly competent judge in the comparatively recent case of Skinner v. Franklin Co., 3 Pa. C. C. R. 424. In that case Judge Rowe, in a well considered opinion, reaches a conclusion adverse to the present defendant. We adopt that conclusion and the reasoning on which it was based, with great satisfaction. The case in hand, however, differs from Skinner v. Franklin Co., in a collateral particular which it is but proper should be noticed as bearing upon a question of practice. In neither case does it appear as one of the admitted facts that the county auditors had audited the plaintiff’s accounts from year to year, and the fact not appearing, it must be taken as not existing: Canonsburg v. Union N. B., 4 Cent. R. 258. But in the case in hand, when it was called for argument, the present learned solicitor for defendant, the case stated having been signed by his predecessor in office, moved to amend by inserting the omitted fact just mentioned. We cannot, of course, force an amendment, for that would be varying the contract of the parties, but we can withhold judgment except upon terms. “ A statement of the case is, itself, not conclusively binding on the parties. Whenever it can be shown that there is a defect in it, no judgment should be given:" Cook v. Shrauder, 25 Pa. 314. There can be no doubt that the fact is as claimed by the learned solicitor for the defendant. Judge Rowe thinks it would not change the defendant’s liability, even if the facts were admitted, and I am strongly of the same opinion; but the Supreme Court may think differently, and it is but fair to the defendant that the fact should appear upon the record. To meet this aspect of the case, a qualified judgment will be entered. And now, February 6,1888, it is ordered that judgment be entered in favor of the plaintiff for 1283.15, provided that the plaintiff, within five days from this date, consents in writing, to be filed in the cause, that the case stated be amended as above indicated; failing in which, it is ordered-that the case stated be quashed. Upon the filing of this order, the plaintiff put upon record an admission that his accounts as sheriff “ were for each year audited by the county auditors upon the bills presented to the commissioners, as recited in the case stated to which tins is supplementary, and which reports were unappealed from.” The court then ordered judgment absolute for the plaintiff, whereupon the defendant took this appeal, assigning as error the entry of said judgment. There was no argument in behalf of the defendant in error.
119 Pa. 380North Manheim Tp. v. Arnold (1888)
No. 143 January Term 1887, Sup. Ct.; court below, No. 162 May Term 1885, C. P. On March 26,1885, -Charles Arnold and Clara Arnold, in right of said Clara Arnold, brought ease against the township of North Manheim, to recover damages for the loss of a horse, broken sleigh and harness.
119 Pa. 390Zell v. Universalist Society (1888)
No. 278 January Term 1887, Sup. Ct.; court below, No. 28 August Term 1884. On June 17,1884, a summons in case was issued by the First Universalist Society of Berks county against Thomas Zell, charging the obstruction of an easement of way claimed over a strip of ground five feet wide owned by the defendant, the obstruction complained of being the projection by the defendant in 1888 of a terra-cotta drain-pipe from the rear of his lot 15 inches into the locus of the easement.
119 Pa. 403S. Long & Son v. Regen (1888)
No. 274 January Term 1888, Sup. Ct.; court below, No. 5 March Term 1886, C. P. On February 1,1886, an action in assumpsit was brought by Michael Regen against Samuel Long and Nicholas Long, trading as S. Long & Son. The declaration was in the common counts.
119 Pa. 413Barbey v. Beaver (1888)
No. 287 January Term 1888, Sup. Ct.;-court below, No. 442 Equity D. 1887.
119 Pa. 417Ætna Fire Ins. v. City of Reading (1888)
1. The provisions of § 17, act of April 4, 1873, P. L. 20, do not constitute such a contract with a foreign insurance company, becoming authorized under said act to transact business in this state, as will prevent the taxation of such companies in the future. 2. Section 17, of said act of 1873, prohibiting cities, counties and municipalities from imposing any license fee or tax upon insurance companies or their agents, is repealed as to cities of the fourth, fifth, sixth and seventh classes, by pi. iv., § 2, article VII., act of May 24, 1887, P. L. 204.
119 Pa. 425Chilson v. Thall (1888)
No. 323 January Term 1887, Sup. Ct.; court below, No. 1 February Term 1887, C. P. in equity.
119 Pa. 432McCullough v. Staver (1888)
ERROR TO THE COURT OF COMMON PLEAS OF CLINTON COUNTY. Nos. 118 January Term 1887, and 184 January Term 1888, Sup. Ct.; court below, No. 254 September Term 1886, C. P. On September 22,1886, a summons in ejectment was issued by James M. Staver against Robert McCullough, to recover lands in Gallagher township. The plea was not guilty. At the trial on May 19,1887, it was shown on the part of the plaintiff: That on April 3, 1883, Robert McCullough made a contract in writing to sell to James M. Staver three adjoining tracts of unseated land in Gallagher township, reserving the hemlock and oak tan-bark thereon, with the right at all times to enter, cut down and peel trees and haul off the bark from 500 cords up, each season, for $3,000 with interest from date of contract, “ provided said James M. Staver, his heirs or assigns shall and do pay the. same within six months from the date hereof”; that on September 1, 1883, Staver made a contract in writing to sell the lands to A. D. and M. S. Squires for $8,000, payable, $500 on October 1, 1883, $1,500 on December 13,1883, $200 on November 1, 1884, $3,000 on December 1, 1884, $2,800 on December 1, 1885, with annual interest from October 3,1883, on the balance unpaid at that date, reserving the hemlock and oak tan-bark, as in the foregoing contract. That, on September 14,1883, McCullough, Staver and A. D. and M. S. Squires entered into a contract together wherein the foregoing contracts were briefly recited and McCullough agreed to vary the terms of payment to him to correspond with the terms of payments to be made by the Squireses to Staver, to wit: $2,000 on December 10, 1883, and $3,000 on December 1, 1884, out of which last payment McCullough was to receive from A. D. and M. S. Squires the balance of .purchase money and interest due him-; and that when A. D. and M. S. Squires should have paid all the purchase money they had agreed to pay to Staver, McCullough would make the title to said lands to A. D. and M. S. Squires as provided in his said agreement with Staver, reserving the tan-bark, etc. That on June 19, 1886, the plaintiff had tendered to the defendant $1,293.18 as the balance due upon the contract of April 3, 1883, with interest, after a payment of $2,000 by A. D. and M. S. Squires on December 8,1883. To keep up the tender, the plaintiff offered to pay $1,300 into court. . It was then offered to be shown on the part of the defendant, that on February 8,1886, to No. 57 November Term 1886, . McCullough had brought an ejectment against A. D. and M. S. Squires for the same lands described in the writ in this case ; that on March 15, 1886, judgment was entered on an award of arbitrators in favor of the plaintiff for the land in dispute, to be released upon the payment by the defendants of $1,287.65 ■within 30 days from the date of the award, and that under a writ of habere facias possession had been delivered to the plaintiff in that ejectment, the defendant in this, on May 17, 1886. The offer was objected to as irrelevant and incompetent, for the reason that the plaintiff herein, not having been made a party to that proceeding and, so far as shown, not in any way notified of it, could not be affected in his rights under his agreement of purchase from the defendant. The offer was admitted for the present, when the defendant rested. The court, Mayer, P. J., directed the jury to find for the plaintiff. A verdict for the plaintiff generally having been returned, the plaintiff paid into court $1,300 in accordance with his tender, and on May 21, 1887, judgment was entered on the verdict as returned. On May 26, 1887, a writ of habere facias was issued and the plaintiff put into possession. On June 2,1887, the defendant purchased the writ of error to No. 118 January Term 1887. On June 13, 1887, on petition of the defendant filed, a rule was granted to show cause why a writ of restitution should not issue. Answer of the plaintiff being filed, on August 24, 1887, the rule was made absolute and a writ of restitution was awarded; the writ issued on the same day and possession was restored Jo Jhe defendant. On October 8,1887, tbe petition of the plaintiff was presented praying the court to amend and mould the verdict, and rule granted. This rule was afterwards made absolute, amending the verdict and judgment thereon by adding a reservation in favor of the defendant of the hemlock and oak bark in accordance with the agreement of April 3, 1883. The defendant excepted to the foregoing order allowing said amendment, and subsequently took the writ of error to No. 134 January Term 1888, specifying that the court erred: 1. In the instruction directing the jury to find a verdict for the defendant. 2. In allowing the amendment of the verdict returned May 19, 1887, upon which judgment had been entered May 21, 1887.
119 Pa. 439Little v. Wilcox (1888)
No. 332 January Term 1888, Sup. Ct.; court below, No. 406 December Term 1887, C. P. On May 9,1887, in an amicable action of ejectment by William Little, committee of - Harriet Wilcox, a lunatic, against P. D. Wilcox, H. D. Wilcox and F. L. Wilcox, to recover an undivided one fourth interest in a tract of 240 acres, more or less, in Albany township, the following were the facts admitted by an agreement in the nature of a case stated : Rollin Wilcox was the son, an only child,…
119 Pa. 449Penn. Mut. Fire Ins. v. Schmidt (1888)
. No. 22 January Term 1888, Sup. Ct.; court below, No. 312 July Term 1884; O. P. On J une 25, 1884, an action of covenant was brought by Frank Schmidt against the Pennsylvania Mutual Fire Insurance… Held: Conditions of this character are not to be construed against the assured, but rather in his favor.
119 Pa. 462Appeal of Heffner (1888)
APPEAL FROM THE DECREE OF THE ORPHANS’ COURT OF BERKS COUNTY. No. 334 January Term 1888, Sup. Ct. On January 5,1885, in the court below, the following petition was presented, verified by the affidavit of the petitioner: The petition of Martin Heffner respectfully represents: That he is a son and devisee and heir of Henry Heffner, late of Richmond township, Berks county, Pennsylvania, deceased. That said Martin Heffner is interested therefore in the estate of decedent. That said decedent died testate, his last will and testament having been duly proven in the register’s office, July 7, 1883, the decedent having died June 21, 1883, at 8 o’clock A. m. In his last will is contained inter alia, the following : “ I do further order that my real estate, situate partly in Rockland township and partly in Richmond township, bounded by lands of Jane Hottenstein, David Kemp and J ames Schlegel, containing twenty-four acres more or less, shall remain in the hands of my executor until the youngest child has attained the age of twenty-one years, then it shall be sold by my executor for the best price that can be gotten for the same. And I do hereby authorize and empower my executor or survivor of Mm to sign, seal, execute and acknowledge all suck deed or deeds of conveyance as may be requisite and necessary for tbe granting and assuring tbe above devised premises unto my said sons, also to the purchaser or purchasers of the last named premises in fee simple.” Said decedent left surviving him a widow, Emma Heffner, who declined to take under the will, and the following children : Sarah, wife of Daniel Angstadt, Benjamin Heffner, Martin Heffner, Henry Heffner, Elizabeth, wife of Jared Hoch, David Heffner, Thama, wife of Bloch, Salome, wife of Owen, of whom Jonathan Bielil is guardian, John Heffner, of whom Franklin Breidegam is guardian, Kate Heffner, of whom Franklin Breidegam is guardian. The said Salome is under age; said Jolm Heffner is about 17 years of age, and said Kate Heffner is about 8 years of age. That inasmuch as by the terms of the will the time for sale is postponed till the youngest child becomes of age, there is great danger that the property may depreciate in value, become out of repair, and decrease in productiveness; that if sold and the sum put upon interest it will yield more to those interested, because the farm, which consists of both woodland and cleared land, will not pay as well farmed as the money put upon interest would. It would certainly be to the advantage of all the parties in interest to have it sold. That your petitioner believes that the parties in interest desire it to be sold. Your petitioner, therefore, asks your honorable court to award an order of sale in accordance with the act of assembly in such case made and provided. And he will ever pray, etc. Martin Heffner. The widow and certain of the other children and heirs of Henry Heffner, deceased, joined in the foregoing petition and prayed that, the land therein described be ordered to be sold. Subsequently, a rule to show cause having been served, Benjamin Y. Heffner filed this answer: Benjamin Heffner, a son and legatee named in the last will and testament of Henry Heffner, deceased, in answer to the above mentioned citation, says: That he has no desire to interfere with directions contained in the last will and testament of his father, Henry Heffner, deceased; that the tract of land, for the sale of which an order of the court is prayed for, is iron ore land and that iron ore was heretofore taken from said premises in considerable quantity, and that Henry Heffner, the testator, directed in his will that said tract of twenty-four acres of land should not be sold until the youngest of his children arrived at the age of twenty-one years, because it was his wish and will that the same might remain as part of his estate for that length of time, as he believed that in the time intervening further examinations and explorations for the discovery of iron ore might be made, and in case of finding a body of ore, believed to be on said premises, that the benefit thereof might accrue to his estate. That said tract of land at this time brings a reasonable annual rental. For these reasons the said Benjamin Heffner has declined to append his name to the petition praying for an order of sale for said property. Benjamin Y. Heffner. Afterward, David H. Heffner and Emma Heffner, widow, who had joined in the prayer of the petition filed by Martin Heffner, on application were permitted to withdraw from the petition presented and to object to granting of the order. Testimony was taken and filed, and. after argument, the court, Schwartz, P. J., filed the following opinion: The real estate asked to be sold is a messuage, tenement and tract of land, situate partly in Rockland and partly in Richmond townships, said county, adjoining lands of Jane Hottenstein, David Kemp and James Schlegel and containing twenty-four acres. The testator directed Benjamin Rhoad, his executor, to sell said premises after his youngest child, at his death seven years of age, should have attained her majority. The testimony relating to the propriety of selling this property shows, that the same is a small farm; that its buildings and fences are not in good state of repair; that it requires considerable outlay of money and labor to restore them; that the same might be sold for about sixteen hundred dollars, and that it was rented for seventy dollars a year at the time this application for citation was awarded. A number of intelligent witnesses, well acquainted with the premises and the section of country in which the same is located, testified at the hearing of this cause that it would be to the advantage and benefit of the heirs if the same were sold now. The court, upon due consideration, and in accordance with the views of said witnesses, make the above mentioned citation absolute. In view of the foregoing, Benjamin Rhoad, executor, as aforesaid, is ordered and directed to make application to me for an order of sale to sell the said premises. Thereupon Benjamin Y. Heffner and Franklin Breidegam, guardian of John and Kate Heffner, took this appeal, assigning the said order as error, for the reasons that it did not appear: 1. That Martin Heffner or those joining with him had any interest in the land or the proceeds thereof, or who the parties interested were. 2. Or, that the said lands were acquired by descent or last will. 3. Or, that the court found it for the interest and advantage of those interested in the lands that they should be sold.
119 Pa. 468Appeal of Rhoad (1888)
APPEAL EROM THE DECREE OE THE ORPHANS’ COURT OE BERKS COUNTY. No. 335 January Term 1888, Sup. Ct. Henry Heffner, of Richmond township, died in June, 1883, leaving a will, afterwards duly admitted to probate, Benjamin Rhoad becoming the executor thereof, the material portions of which will were as follows: Item (1). I give and bequeath unto my beloved wife Emma Heffner [certain property].
119 Pa. 472Reading & Pottsville R. v. Balthaser (1888)
ERROR TO THE COURT OF COMMON PLEAS OF BERKS COUNTY. No. 110 January Term 1888, Sup. Ct.; court below, No. 47 November Term 1885, C. P. On February 27, 1886, in an appeal from a report of viewers in a proceeding to assess damages to land instituted in the court below by Mary Baltbaser, widow, Frank Baltbaser, and others, children and devisees of William Balthaser, deceased, against the Beading & Potts ville Bailroad Company, now the Pennsylvania Schuylkill Valley Bailroad Company, an issue was directed under the form of an action in assumpsit, to be tried under the plea of non assumpsit, without further pleadings, the land-owners as plaintiffs and the railroad company as defendant therein. At the trial on April 18,1887, the plaintiffs showed title to a tract of about 37 acres, upon which was a deposit of soft limestone'. Quarries had been operated for several years, and the stone removed to a depth of 40 or 50 feet. About 4 acres of the stone were left. It was claimed that the chief value of the tract was in those four acres, and that the location and construction of the defendant’s road in May, 1885, had occupied about 1.8 acres thereof, the road running in a cut of 11 feet through the deposit. After testimony on the part of the plaintiff as to the character of the land and the purposes for which it was used, the increased difficulties of mining and the delivery of stone and lime, Walter W. Balthaser testified that he made the difference in the market value of the tract immediately before and immediately after the railroad was located to be about $12,000: By Mr. Buhl, for plaintiffs: Q. If you can, you may state how you make up the items ? A. They are made up by the stone which they take— By Mr. Derr, for defendant: Q. What do you mean by “the stone which they take?” A. The land which it occupies has stone underneath, and it is occupied by the railroad, taken by this railroad. Mr. Derr: Objected to. Defendant moves to strike out this testimony with regard to the deposit of stone, for the reason that there is no reasonable way in. which a value can be placed upon it; it would have to be known, in the first place, when the plaintiffs proposed to take it out; what they were going to use it for, whether for burning lime, for furnace use, or any other use; moreover, the market price at the time of mining, the cost of labor, and of transportation, and other elements of computation, would have to be known. The court declined to strike out the testimony, noting that the objection was to be taken as having been .made in time and of the same effect as if made before the question was answered.1 The witness on cross-examination testified that in his estimate of 112,000 he had taken into account how many tons of stone were under the railroad appropriation and put a value on them at so much per ton. Other witnesses, on the part of the land-owners, embraced in their estimates the value of the stone beneath the defendant’s appropriation, as an element of damages. Joseph W. Day, a freight agent of the Penn. R. Co., called for ,the defendant, testified as to the connections of tlie defendant’s road, and that it connected the Pennsylvania system with the Lehigh Valley system. Q. Can you tell us what is the freight on lime between Leesport and Hamburg? Objected to as immaterial and irrelevant. Mr. Hiester: The witness Balthaser has given us freight rates from this property, from Leesport to Hamburg at 56 cents a ton; he has also stated that our railroad is of no benefit to his property and likely to prove of no benefit to his property, because the freight on lime was greater between Leesport and Hamburg on our road than the freight on the Philadelphia & Reading Railroad; the purpose of this question is to contradict that witness, in the first place, on material points in the case ; and in the second place, to show a probable advantage accruing to this property from a decreased rate of freight for the product of the property. Objected to. Mr. Derr: It is now proposed by the defendants to show that at and prior to the time of the opening of their railroad between the plaintiffs’ property and Hamburg the rates of freight over the Philadelphia & Reading Railroad for the carriage of lime from the plaintiffs’ property to Hamburg were as follows: Fifteen cents per ton from the plaintiffs’ property to Leesport and 56 cents per ton from Leesport to Hamburg; that at the time of the opening of defendants’ railroad their rates from the plaintiffs’ property to Hamburg were only 60 cents a ton, or 11 cents less than the rate from the Philadelphia & Reading Railroad; and that since the opening of the defendants’ railroad the freight rates have been lowered to 48 cents a ton; and that the lowering of the freight rates was a consequence of the construction and opening of the defendants’ competing line of railroad. The purpose of the offer is to show the benefits that have already accrued to the plaintiffs’ property, illustrating the effect of the opening of the competing line of railroad between the two points and showing to the jury what benefits and advantages are likely to be derived by the plaintiffs’ property and owners thereof in the future; and also for the purpose of contradicting Mr. Balthaser, who in his testimony declared that he had inquired, and that the-freight rates from Leesport to Hamburg were higher on the defendants’ railroad than on the Philadelphia & Reading Railroad. Mr. Ruhl: Objected to by the plaintiffs; first, as to the contradiction of Mr. Balthaser, they did not ask him as to any particular time, nor is it now proposed to prove at what time the rates were different from those testified to by him, as from information received, as he testified. It is further objected to, because there is no testimony in the cause which shows or tends to show that the plaintiffs at any time shipped lime to Hamburg either by the Philadelphia & Reading Company’s line or any other. And still further, because it is not proposed to show that these rates will continue, or will be a permanent advantage, or that the advantage which is claimed in the offer would be special to this property. It is irrelevant, immaterial and incompetent testimony. The court: As to the time when the witness referred to stated that the rates were higher on this road than on the Philadelphia & Reading Railroad, the defendants may recall Mr. Balthaser. Walter W. Balthaser was then recalled for further cross-examination and testified that in the spring of 1886 he had inquired of the Pennsylvania station agent at Leesport as to the rates of freight from Leesport to Hamburg over the defendant company’s road and found them to be higher than they were over the Philadelphia & Reading road. Then the plaintiffs objected further to the offer that it was not proposed to show the cost of conveying lime from the plaintiffs’ tract.to Leesport, which would be the nearest point they would have for shipping on the new road. The offer was then overruled.3 The court, Hag-bnman, P. J., charged the jury and answered the points presented as follows: This action is brought by Mary Balthaser, the widow of William Balthaser, deceased, and the children of William Balthaser, deceased, against the Reading and Pottsville Railroad Company, now the Pennsylvania Schuylkill Yalley Railroad Company, for the purpose of recovering damages which they allege this property has sustained by reason of the construction of a railroad over it. It seems that on May 28,1885, this railroad company went upon this property for the purpose of constructing their railroad, and that they have constructed a railroad over it; and that in the construction of the railroad have taken 1,807 acres of land. The plaintiffs’ claim is for damages for the construction of this railroad over their property. You have been upon the property; you have seen how the railroad runs through it; and your duties are the same as those of a jury of view, and the same law that governs a jury of • view for the assessment of damages will govern you in finding a verdict..... In order to estimate the damages which may be sustained, the Supreme Court has settled by numerous decisions that the true measure of damages for lands taken for railroad purposes is the difference between the market value of the land before the railroad was constructed over it and after the railroad is constructed..... It is claimed upon the part of the plaintiff that this property is valuable, not simply for farm land, but in consequence of the limestone that is on it. The Supreme Court have also said that if the property by reason of its location or otherwise is especially adapted to any particular use to which it is applied; if it is more valuable for that particular use than for any other, its market value will be measured accordingly. Several points have been submitted by the plaintiffs, to which I will refer before I refer to the evidence. The plaintiffs have asked us to say: 1. In estimating the benefits to be set off against damages, the jury should allow only for special advantages, if any, peculiar to this tract caused by the construction of the road, and should not allow for any benefits which this property may share in common with all others in the neighborhood resulting from the road. Answer: This point is affirmed. 2. In assessing damages to plaintiffs in this case, the risk of fire following the proper and lawful use of the road must be taken into consideration by the jury, and also the increased burden imposed upon the land by reason of increased fencing which may be required. Answer: This point is also affirmed. 3. The jury should consider, in estimating the value of the property, the use which was made of it by plaintiffs before the railroad was located across it. Answer: This point is also affirmed. The defendant has also submitted three points, two of which I will answer at this point, and reserve the first until after I shall have adverted to the evidence, because it has more special reference to a particular part of the evidence which was submitted by the plaintiffs. That point relates to the limestone, or stone occupied by the road-bed. The other points are as follows : 2. The jury will have to allow defendant credit for all advantages which may have resulted, or which may seem likely to result, to the plaintiffs from the location and construction of said railroad. Answer: This point is affirmed; but the advantages must be such as are special and peculiar to this property.4 3. If the jury believe that by reason of the reduction in freight rates, facilities for shipment, or the extension of the plaintiffs’ market for the sale of the product of their quarries and lime kilns, the plaintiffs’ property taken as a whole was and is in consequence worth as much in the market since the construction of the defendant’s railroad as it was before, then the verdict must be for the defendant. Answer: This point is affirmed. The jury will understand the rule of law better if I give it to them in different words from that which is given in the law books. The jury will consider from the evidence what this property was worth in the market immediately before the railroad was located over it; then also what was the value of this property in the market after the railroad was located and constructed over it. If it was not worth as much afterwards as it was before, then that difference is the proper measure of damages. But if the property was worth as much after the railroad was constructed over it as it was before, that is, if the advantages by the construction of the railroad are such as will make this property as valuable in the market as it was before, the plaintiffs have sustained no damage...... What do the witnesses say ? Walter W. Balthaser, who was the first witness called, and is one of the plaintiffs, says that the damages are $12,000. And there was something said about the stone under the railroad. Isaac H. Rahn was called, and he fixes the damages at $9,000. I have used the word damages, but that is the amount which the witnesses gave as the difference in the value of the land before and after the construction of the road. Mr. Rahn says that in making up that estimate of $9,000, he values the stone under the railroad at $4,000. [The court then referred to the estimates of damage testified to by other witnesses on the part of the plaintiffs, embracing as an element the value of the stone under the railroad appropriation and proceeded:] You see from this that in these various sums named as damages, there is a very great difference between the witnesses, ranging from $12,000 to $5,000 and $6,000. The counsel for the defendant have asked the court to say that the jury cannot take into account this estimate of damages which the witnesses have put upon the stone under the road, and they have submitted a point, thus: 1. The jury cannot place a value on the stone existing and being under the railroad, and which in consequence of the construction of the railroad cannot be removed, and allow the plaintiffs for such damages ; such portions of the estimates of the plaintiffs’ witnesses as are based on that theory must therefore be disregarded by the jury. The court answer this point thus : The jury will disregard the estimates made by the witnesses of the specific value of the limestone covered and being under the railroad, but the jury will consider that evidence so far as it affects the market value of the whole tract.8 So much, then, for the plaintiffs’ witnesses. I may hero state that all the witnesses that were examined upon the part of the plaintiffs, I believe, with the exception of Dr. Epler, the jury will know whether I am correct or not, have stated they could not see that the railroad was of any advantage to this property. Dr. Epler speaks somewhat differently in regard to that, and does regard the railroad as being of advantage to this property. You have heard in what manner he has testified in regard to it. [The testimony of others of the defendant’s witnesses was then reviewed.] These, gentlemen, are the witnesses which have been called on both sides as I have named them to you. [You have been upon the property; and it is for you to say what is the difference in the market value of this property.] 5 Whatever that difference is, if any, would be the proper measure of damages which the plaintiffs are entitled to recover; and, on whatever sum you find, the plaintiffs are entitled to interest from May 23, 1885. Whatever sum you find due the plaintiffs you will add interest to and return your verdict for that amount. This is all it is necessary for the court to say to the jury. The verdict of the jury was in favor of the plaintiffs for $8,040.64. Judgment having been entered, the defendant company took this writ, assigning for error; 1. The refusal to strike out the testimony of Walter W. Balthaser.1 2. The answer to the defendant’s first point.8 3. The refusal to admit defendant’s offer.3 4. The answer to the defendant’s second point.4 5. The part of the charge embraced in [ ] 5
119 Pa. 484Whitehall Mfg. Co. v. Wise Brothers (1888)
No. 144 July Term 1887, Sup. Ct.; court below, No. 38 April Term 1885, C. P. On March 16, 1885, an action in assumpsit was brought by the Whitehall Manufacturing Company of Whitehall, Mich., against L. R. Wise et al., trading as Wise Brothers, at Bangor, Pa., to recover for lumber sold and delivered.
119 Pa. 495Buckwalter v. Russell (1888)
No. 40 January Term 1888, Sup. Ct.; court below, No 15 January Term 1887, C. P. On May 15,1886, differences existing between Allen Russell, on the one part, and John R. and J. P. Buckwalter, on tbe other, they made a submission in writing of all matters in controversy to the award of three arbitrators on that day selected, their submission to such award to be made a rule of the Court of Common Pleas, under the provisions of § 1, act of June 16, 1836, P. L. 717, and the…
119 Pa. 503Gaughan v. City of Philadelphia (1888)
ERROR TO the COURT OE COMMON PLEAS NO. 3 OE PHILADELPHIA COUNTY. No. 151 July Term 1887, Sup. Ct.; court below, No. 108 June Term 1886, C. P. No. 3. On May 12,1886, Catharine Gaughan brought an action in case against the city of Philadelphia to recover damages for the death of John Gaughan, her son, charged to the alleged negligence of the city. At the trial on May 2,1887, before Gordon, J., testimony was introduced on the part of the plaintiff from which the following facts appeared: The plaintiff with her deceased son, about seven years of age, three other children and their grandmother, lived at 3504 Market street. Patrick Kelley kept a beer saloon in the adjoining building, and at the curbstone, on the line between the buildings, was a post with an awning rod extending to the wall of the houses. A lot of barrels, eight or ten in number, were kept' by Kelley at his curb line placed on end one barrel on another, the rows being two or three barrels high. These barrels had been so piled for several weeks continuously. On May 26, 1885, John 'Gaughan, who with his brother and other boys were playing about the barrels, got upon the top of one and was reaching for the awning rod in some manner when the barrel moved away and he fell into the water table with the barrel upon him, receiving such injuries that he died the next morning. At the time of the injury his mother was absent at her work, his grandmother washing a younger child, and the deceased had been out of her sight but a few moments. It further appeared that on September 23,1864, a city ordinance had been enacted declaring it to be a nuisance “ to place or pile empty boxes, barrels, hogsheads or crates on any footway or highway in the city.” At the close of the plaintiff’s case the defendant’s counsel moved the court to order a compulsory nonsuit, which was so ordered. A motion to take off the judgment of nonsuit was afterwards refused, when the plaintiff took this writ assigning said order as error.
119 Pa. 507McFadden v. Rausch (1888)
No. 99 January Term 1887, Sup. Ct.; court below, No. 22 October Term, 1885, C. P. On September 19,1885, a summons in case was issued by Julia Rausch, against Charles McFadden, to recover damages for injuries to a dwelling house owned by the plaintiff and in the occupancy of a tenant, caused by alleged negligent blasting.
119 Pa. 517Appeal of Leibert (1888)
No. 176 July Term 1887, Sup. Ct.; court below, Lev. Fa. No. 10 April Term 1886, C. P. On April 9, 1886, real estate in Betblebem was sold at sheriff’s sale as the property of Maria E. Leibert, wife of R. W. Leibert, for $7,500.
119 Pa. 525Appeal of Leibert (1888)
FROM THE DECREE OF THE ORPHANS’ COURT OF NORTHAMPTON COUNTY. No. 177 July Term 1887, Sup. Ct. On January 3,1887, Maria E. Leibert, wife of R. W. Leibert, presented her petition to the Orphans’ Court setting forth, in substance : That Charles L. Knauss, of Bethlehem, died August 13, 1859, intestate, leaving a widow, Matilda L. Knauss, and three children, Cornelius M., Charles Henry and Maria E., the petitioner, and that letters of administration issued to said Cornelius M. and Charles Henry Knauss and R. W. Leibert; that Charles Henry died intestate October 3,1886, leaving a widow, Helena, and a daughter, Matilda Mary; and the widow of Charles L. Knauss died on March 3, 1871, and afterward, by proceedings in partition in said court, a house and lot in Bethlehem of the estate of said Charles L. Knauss was awarded to the petitioner at the valuation of $11,860, and petitioner had entered into a recognizance and executed bonds to the other heirs for their respective interests; that the share of Cornelius M. Knauss, who had received a bond for $3,953.33, had been paid in full by set-offs and mutual accounts; that the personal estate of the decedent was afterwards settled by the surviving administrators, when it appeared that Charles Henry Knauss was indebted to the estate in the sum of $1,147.92, the whole amount of which was due and owing to your petitioner, and the petitioner believes and expects to show that there is nothing due on the recognizance and bond for $3,953.33 given to the guardian of Matilda Mary Knauss, the heir at law of Charles Henry Knauss: Further, that at the time of said partition proceedings, January 26, 1872, the real estate awarded to the petitioner was bound by a mortgage of the decedent to Philip H. Goepp, for $2,500, which mortgage was to have been paid by the administrators out of the personal property of the intestate ; that the petitioner paid the interest on said mortgage from the time she was awarded said real estate until April 1, 1885 ; that on February 22, 1886, the assignee of said Philip H. Goepp foreclosed the said mortgage and sold the real estate of the petitioner to Joseph M. Leibert, for $7,500, out of which the sheriff paid the said mortgage and interest, to wit, $2,650, and costs, $290, leaving a balance of $4,560 for distribution, and that, by reason of the failure of said administrators to pay said mortgage, the petitioner lost her title and ownership of the real estate so adjudged to her: Praying the court as follows: 1. To order and decree that all the said proceedings in partition, by which the said real estate or purpart of the said C. L. Knauss, deceased, was adjudged to her, be void and of no effect, and that your petitioner be remitted to her original rights the same as if no partition had been made. 2. That the sheriff be ordered and decreed to pay the said balance in his hands into the Court of Common Pleas, to be transferred into the Orphans’ Court for distribution, and 3. That the sheriff be enjoined-from paying out the said balance to any person without the order of the court. Upon the filing of this petition, service of a rule granted was accepted, and the proceeding was referred to Mr. P, O. Evans, already appointed commissioner by the Court of Common Pleas to make distribution of the fund in the sheriff’s hands under the writ from that court, with directions to report a decree to the Orphans’ Court: See preceding case. 'Mr. Evans, the commissioner, subsequently filed a report finding the facts appearing in the statement of the facts of the preceding case, ante 518, and, discussing Peck v. Jones, 70 Pa. 85; Dresher v. Water Co., 52 Pa. 225; Horner v. Hasbrouck, 41 Pa. 169; Commonwealth, to use, v. Hantz, 2 P. & W. 333, and Groff v. Groff, 14 S. & R. 181, ruled that by the sale on the mortgage in the Common Pleas, there was no sale of the title of the ancestor, but a sale of the title of the heirs obtained by Mrs. Leibert under the partition proceedings, and found that the petitioner had not been evicted by a paramount title; that, therefore, the proceedings in partition were not avoided, that the petitioner’s defence was to the action on the bond, and that she took the real estate subject to the decedent’s mortgage, recommending a decree that the petition be dismissed. On March 7, 1887, exceptions filed by the petitioner to the report of the commissioner were dismissed by the court, Reedeb, J., in an opinion, which after a recital of the facts stated ante 518, was as follows: The claim of Mrs. Leibert rests upon the decisions of the Supreme Court to the effect that, where land is taken at the appraisement in proceedings in partition in the Orphans’ Court, and the heir taking it enters into a recognizance to the other heirs, and takes possession and holds the same, receives the rents and profits, and afterwards the land is sold on a judgment obtained for the debts of the ancestor, the heir who took is thereby discharged from paying the appraised value, and is accountable to the other heirs only for their proportion of the rents and profits; citing Cox v. Henry, 32 Pa. 18; Commonwealth v. Hantz, 2 P. & W. 333; Groff v. Groff, 14 S. & R. 181; Seaton v. Barry, 4 W. & S. 183; Custer v. Detterer, 3 W. & S. 28; Com. v. McIntire, 8 Pa. 295; Horner v. Hasbrouck, 41 Pa. 169. That this is the law of Pennsylvania cannot be successfully controverted. It rests solely upon the claim of equity. Where there has been an eviction because of an incumbrance upon the inheritance created by the ancestor, it would be inequitable to make the heir to whom the land was allotted pay the whole debt. It should be paid out of the entire estate, and the other heirs should be made to pay their proportion of such debt. The decisions relied upon by the defendant emanate solely from the determination of our courts of equity to preserve the equities of all the parties in interest. But as the Orphans’ Court has equity jurisdiction, we must consider all the equities of the parties in interest, and where the equities of others rise superior to the equity of the one taking the inheritance, her equity must give way to -the superior equities of the others. In this case Richard W. Leibert, the husband of the petitioner, was one of the administrators of the estate. He filed an account, in which, among the credits, appears the following item: “Assumed S. Wolle mortgage, $2,500. ” Assumed by whom? Maria E. Leibert had already been awarded this property in the proceedings in partition. The mortgage rested upon her property. She paid the interest on that mortgage from the date of her acceptance (with the exception of $150) until the writ of levari facias was issued, more than fourteen years. The mortgage could be “paid” to Sylvester Wolle, trustee, etc. It could be “ assumed ” by no one but Maria E. Leibert. Richard W. Leibert ostensibly takes that $2,500 to pay somebody. The heirs are deprived of it. The mortgagee does not get it. Either he paid it to his wife and she assumed the mortgage, or he wrongfully withheld and appropriated it from the funds of the estate of which he was the administrator. I do not think it necessary to decide which it was, for the purposes of this decree. Concede that he never transferred this $2,500, that he takes credit for, to his wife, and who has the superior equity? She knew either actually or constructively, that her husband had accredited himself in the settlement of his account with the payment of this money. She knew of the manner in which it was accredited. She knew whether it was assumed by her or not. She knew it was not paid, for she paid the interest on the mortgage for thirteen years after the account was filed. She knew these facts, and she was the only one who could have known them. Yet for fourteen years she kept silent. She knew that the mortgage was not paid, that she had not assumed it, and that her husband. had taken credit for it, and yet she said nothing. She knew a fraud had been committed, and yet she did nothing to protect the interests of herself and the other heirs. The others knew nothing. They could not know that she had not “ assumed ” the mortgage and been paid the $2,500, or that the mortgage had not been paid. They knew that the amount to pay it had been withheld from them. But that is all they knew. The facts were all within her knowledge, and yet she stood by, silent, a witness to her husband’s fraud for thirteen years, a fraud that was only possible because of her silence. Now she asks for protection from this very debt; that this court, in the exercise of its equity powers, avoid the proceedings in partition to give her relief from the injury which this act of her husband will entail upon her, who alone made the fraud possible. The motion must be denied, because the equities of the others rise to a towering height over hers. The petition of Maria E. Leibert is dismissed. Thereupon, the petitioner took this appeal (argued with the preceding cause), and specified that the court erred: 1. In dismissing the petition of Maria E. Leibert, the appellant. 2. In not setting aside the proceedings in partition in the estate of C. L. Knauss, deceased, so far as the same related to the acceptance by the appellant of the mansion house and lot of land of said decedent, as prayed for in the petition. 3. In not reducing the amount of the recognizance of the appellant to the appellee by one third of the amount of the mortgage of the decedent, and interest paid by the appellant.
119 Pa. 533English v. Hager (1888)
APPEAL EROM THE COURT OE COMMON PLEAS OE LYCOMING COUNTY. No. 209 [and 208] July Term 1887, Sup. Ct.; court below, No. 18 December Term 1886, C. P. On September 9,1886, a judgment for $106.96 was entered in tbe court below in favor of Amzi H. English against Jacob Hager, by statement and confession upon a note under seal with warrant of attorney, made and delivered by Hager to English on January 24, 1885, for $102.03. A fieri facias having been issued, on September 17, 1886, the defendant Hager presented his petition setting forth in substance: That he had been dealing at the store of the plaintiff, and in 1879, on a settlement of his account he had given the plaintiff his note for $97.39; that in 1879 and afterwards at various times he had made payments on said note in cash and produce, for which he held receipts given by plaintiff; that in January, 1885, the note on which judgment had since been entered was presented to him to sign as a renewal of the former note, and he refused to sign it, “ stating that he had receipts for its payment and a large amount over, but that he could not find his 1879 receipts; that English, the plaintiff, then said, you sign this note, and then if you can find those receipts, I will give you credit on the note for the amount they represent: Further, that the defendant did not find said 1879 receipts till June or July, 1886, and he then went to plaintiff to settle and lift his note, when the latter claimed that the payments evidenced by the receipts produced were applicable to an open account existing, and refused to appropriate the credits as desired: Praying that a rule be granted to show cause why the judgment should not be opened and the defendant let into a defence, etc. Depositions were taken under the rule granted. The defendant deposed in substance that after giving the note for §97.89 in 1879, neither he nor any member of his family ever bought anything of the plaintiff on credit; that he had made various payments in cash to the plaintiff and had delivered to him hay and other produce, showing receipts therefor; that the plaintiff’s son having come to him with a new note to sign, “I went up to Jersey Shore; Mr. English was there in the store, sitting by the stove. Isays to Mr. English: We can’t settle, for I lost my 1879 receipts. Then we got up and went around to his desk, on this lower side, then he, Mr. English, says: You can sign this note then, he says, that will keep it open until you find your receipts. Then I signed the note. When I found the receipts I was to come up, then we would settle off the note......Then I left and went home. I did not find them 1879 receipts until the last of June, 1886. Sometime in July, 1886, Mr. English came down to my house, saying that he had bought some property of Staver, and he had borrowed money to pay for it, out the bank, and he had to meet it. Then I says to him: Mr. English, I have no money for you; I have found my 1879 receipts and now I am ready for settlement, as I don’t owe you a dollar, as you owe me. He says then: Oh! no, you run a book account with me right along. I says: Never did I. He said: Yes, you did. I says: If there is a book account against me it has certainly been forged; if there is I demand an itemized bill. Never before that did he say I had a book account since 1879.” The plaintiff deposed in substance that in addition to the note for §97.89, he had an account with the defendant; that on January 24,1885, the date when the note in controversy was signed, the account was looked over and there was a balance of §6.07 due defendant thereon; the plaintiff then produced the note he had previously sent to the defendant and the latter claimed he had an account for eighteen sacks of buckwheat flour delivered; that after some objection by plaintiff, a credit was allowed for the flour and the balance on the account, and a new note drawn for $102.08 and signed by the defendant, upon which note the judgment was afterwards entered; that this note was given on a final settlement of all accounts between the parties and the plaintiff had squared his books: “When Hager signed the note on January 24, 1885, there was no dispute between us about receipts, except about this buckwheat flour, which I allowed him credit for in order to have a settlement. There was no other conditions on which this note was signed, he promising to fetch the book up and show me the charges.” Margery English, the plaintiff’s daughter, testified that she wrote the note signed by the defendant on J anuary 24,1885, and saw Mr. Hager sign it; she did not hear any conversation between her father and defendant. The testimony of other witnesses related to the accounts of the parties against each other. On October 15, 1886, the rule granted to show cause why the judgment should not be opened, etc., was made absolute. On March 14, 1887, the issue framed came on for trial before a jury, when upon the testimony then adduced, not differing essentially from that taken on the rule referred to, the court, Cummin, P. J., in substance submitted whether on January 24, 1885, there was a final settlement between the parties, resulting in the making and delivery of the note, and, if not, whether anything was due from the defendant to the plaintiff, and if so, how much. The jury returned a verdict for the defendant. On July 22, 1887, a motion for a new trial, previously entertained, was heard and refused. On the same day, the plaintiff by his attorneys “ excepts to the action of the court in opening the judgment which was entered in this case, and prays that the same may be allowed and noted on the record.” On July 29th, the court filed the following: After hearing, the judgment in this case,, which had been entered on a judgment note, was opened and defendant let into a defence. The plaintiff did not except to the order opening the judgment. Issue was joined and the cause tried on its merits, resulting in a verdict for the defendant. A motion for a new trial was afterwards overruled, and thereupon without consent of, or notice to, defendant or Ms counsel, the plaintiff asks leave to file exceptions to the order of court opening the judgment. It seems to me this application comes too late, and it is therefore refused. Thereupon the plaintiff took an appeal to No. 209, and a writ of error to No. 208, specifying that the court erred: 1. In opening the judgment by the order of October 15, 1886. 2. In submitting the cause to the jury on the trial of the issue on March 14, 1887.
119 Pa. 541Pennsylvania R. v. Marchant (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY. No. 142 July Term 1887, Sup. Ct.; court below, No. 183 September Term 1884, C. P. No. 3. On October 25, 1884, an action in case was brought by Edward D. Marchant against the Pennsylvania Railroad Company to recover damages for consequential injuries .to his property, No. 1711 Filbert street, arising from the construction and operation of the Filbert street extension of the defendant company’s roadway. The plaintiff’s declaration averred the ownership and possession by the plaintiff, on June 1, 1881, and subsequently, of a four-story brick messuage or tenement, partly of brown stone front, upon a lot of ground on the north side of Filbert street at No. 1711; that Filbert street was a public street or highway of Philadelphia, duly laid out, graded, curbed and paved, of twenty-four feet in width from curb to curb, and that the defendant was and still is a corporation, etc., invested with the privilege of taking private property for public use. That the defendant at the date aforesaid, in the construction and enlargement of its works, highways and improvements, did erect, build and construct along and upon the south side of said street and in front of the plaintiff’s property abutting thereon on the north side, an elevated railroad placed on piers or abutments set on or about the line of the south side of said street, at intervals longitudinally of fifty feet more or less and at an elevation of twenty feet above the established grade of said street, which said elevated railroad, further westward, built upon piers or pillars, extended across said street to the north curb line thereof, making a part of a continuous line of railway, which was and had been from said date operated and used by the defendant company for the purposes of the transportation of goods and passengers in cars driven and drawn by steam locomotives. Further, “that the erection, building and construction by the said defendant of the elevated railroad aforesaid, and the erection and construction of the abutments, piers and pillars as aforesaid for the support of the superstructure aforesaid, and the operation and use of the said elevated railroad for the transportation of freight and passengers in railway cars driven by steam locomotives, and the noise, burning cinders, smoke, dirt, dust and jarring, incident to the operation and use of an elevated railroad constructed as aforesaid for the purposes aforesaid, injured the said plaintiff in the possession, use and enjoyment of his premises and property aforesaid, and rendered the same incommodious, unfit and of little or no use and value to the said plaintiff; darkened the premises of said plaintiff, and hindered the light and air from coming and entering into and through the windows of said dwelling, so that the same was rendered uncomfortable, unwholesome and unfit for a habitation, and injured and incommoded the plaintiff in the enjoyment thereof and in the conduct of his business as a painter, and depreciated the value of said premises, and deprived him of the free use along and upon Filbert street as a highway as aforesaid, and greatly depreciated the value of said premises while he was so possessed of the same, to wit, from the day and year first aforesaid till, to wit, October 7, 1882, all of which resulted in a sale of said premises far below their value before the erection and operation of said elevated railroad and far below what the said premises were at that time worth and would have brought had the said premises not have been injured as aforesaid by the construction of said railroad and operation of the same.” An amendment of the narr. alleged, as additional injuries, the cracking of the walls of the plaintiff’s house from the jarring caused by passing trains; the disturbance of the rest of the plaintiff and his family by night and their peace by day; the breaking up of the plaintiff’s business as an artist; the destruction of the use of the premises as a resting and boarding place for sick persons carried on therein, by reason whereof, etc., etc. At the trial on November 5, 1886, it was admitted in the plaintiff’s case in chief, (1) that Filbert street, between Seventeenth and Eighteenth, opposite the plaintiff’s property, was fifty-one feet wide from the north side of the works of the railroad company, the entire width intervening between plaintiff’s house and said works; (2) that the construction of the Filbert street extension was begun in October, 1879, and completed and the road put in operation thereon on December 5,1881; (8) and, inter alia, that the train movements in twenty-four hours at Seventeenth and Filbert streets were about 1440 in number. After evidence of title, testimony was introduced on the part of the plaintiff that gradually, after the railroad was in operation, the walls of the plaintiff’s house began to crack in many places; the house shook continuously as trains were moving; mantel-pieces were affected and one of them shaken from the wall; that there was a turn-table opposite, and the rest and comfort of the plaintiff and of his family were disturbed by the noise, soot and smoke; that the property was sold from the plaintiff in October, 1882, and he left it in 1884, when it was afterwards used as a seed store. Evidence was also given as to the depreciation in value of the property arising from the construction and operation of the railroad. On the part of the defendant company, after evidence showing title authorizing the Filbert street extension and erection of the elevated roadway opposite the plaintiff’s premises, testimony was introduced upon the subject of the depreciation in value of the property to meet that introduced by the plaintiff, when the case was closed upon the evidence and the defendant submitted the following points for instructions: 1. The defendant, under its charter and supplements in evidence, had full lawful authority to erect and operate the Filbert street extension or branch described in the declaration, without incurring any liability by reason thereof for consequential damages to the property of the plaintiff; the uncontradicted evidence being that none of the said property was taken by the defendant, but that the entire width of Filbert street intervenes between the railroad of the defendant and the nearest point thereto of the property of the plaintiff.1 2. The defendant, as purchaser of the main line of the public works of this state, under the act of assembly and deed in evidence, had full lawful authority to erect and operate the said Filbert street extension or branch, without incurring any liability to the plaintiff for alleged consequential damages to his property; the uncontradicted evidence being that none of the said property was taken by the defendant, but that the entire width of Filbert street intervenes between the railroad of the defendant and the nearest point thereto of the property of the plaintiff.8 3. The contracts contained in the charter of the defendant and the supplements thereto., in evidence, as well as the contract contained in the act of assembly and deed for the main line, already mentioned, authorized the defendant to construct said extension or branch, with liability for property taken only; and no subsequent legislation by this state can impair the obligations of those contracts, or either of them, by increasing the price of the exercise of the franchises granted by imposing an obligation to pay for property alleged to be injured, but not alleged to have been taken.3 4. The property of the plaintiff being separated from the railroad of the defendant by the entire width of Filbert street, a public highway of the city of Philadelphia of the width of fifty-one feet, there is no liability on the part of the defendant for alleged consequential damages to said property.4 5. The uncontradicted evidence being that the property of the plaintiff is situated on the north side of Filbert street, a public highway of the city of Philadelphia, on the opposite side from the railroad of the defendant, which does not occupy any part of said street opposite the property of the plaintiff, and is erected wholly on its own property, being a distance of fifty-one feet therefrom, and there being no evidence that any of the property of the plaintiff was taken, injured or destroyed by the construction of the said Filbert street extension or branch, the' verdict must be for the defendant.5 6. The plaintiff’s property being situated in a thickly built portion of the city of Philadelphia, and upon the opposite side of a frequented public highway, the defendant is not responsible for the consequences to the plaintiff’s property of the proper and careful operation of its road.6 . 7. Under all the evidence the verdict should be for the defendant.7 The foregoing points were all refused by the court, Finletteb, P. J., who instructed the jury that there was but one question for them to determine, and that was, what had been the depreciation in the value of the property; that the fair rule, as the law said, was to consider the value of the property immediately before and its value immediately after the injury was inflicted, and the difference between those two values would be the amount of damages suffered; that upon whatever amount the damages at the timé of the sale of 'the property in October, 1882, might be estimated, interest should be allowed to the date of the trial, four years and one month. The jury returned a verdict for the plaintiff for f4,980. On June 9, 1887, judgment was entered upon the verdict, when the defendant company took this writ assigning for error: 1-7. The refusal to affirm the defendant’s points.140 7
119 Pa. 577Pennsylvania R. v. Raiordon (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY. No. 147 January Term 1887, Sup. Ct.; court below, No. 76 ■ June Term 1885, C. P. No. 1. On June 16,1885, Cornelius Raiordon brought an action in case against the Pennsylvania Railroad' Company to recover for the loss of a horse shipped upon the defendant’s road. The declaration averred that the defendant company was a common carrier, and charged that on March 31, 1885, the plaintiff delivered and the defendant received a horse, alive and in good condition, to be conveyed from Walkersville, Frederick county, Maryland, and delivered at Philadelphia, Pa., in the same good condition; yet, not regarding its duty, etc., etc., the defendant did not safely and securely deliver, etc., but on the contrary, being such common carrier, so carelessly and negligently conducted itself in the premises that by and through the carelessness, negligence and default of the defendant the horse became and was injured and killed, whereby, etc. The defendant company pleaded not guilty and further that the plaintiff delivered said horse to the defendant upon an agreement in a certain bill of lading hereafter presented. At the trial on October 31, 1887, before Biddle, J., the only witness called upon the plaintiff’s case was the plaintiff himself, who testified that on March 31, 1885, he shipped eighteen horses from Walkersville, Md., to Philadelphia upon the defendant company’s road and that when he got to Philadelphia, one of the horses worth $125 was dead. On cross-examination, the plaintiff admitted his signature to a bill of lading produced and said that he came from Walkersville to Philadelphia in the same train with the horses ; the horses were in a car next the engine; the next car had cows in it and then came the caboose in which plaintiff rode; the train started about ten, and reached Philadelphia about daylight; as it would stop on the way, the plaintiff looked into the car, but noticed nothing specially. The plaintiff’s case was then rested. The defendant put in evidence the bill of lading identified by the plaintiff; parts of which were as follows: No. Frederick Station, P. R. R., March 31st, 1885. C. Raiordon delivered into safe and suitable cars of the Pennsylvania Railroad Company, numbered 3516, for transportation from Frederick to Philadelphia, Live Stock of the kind and value, per head, as follows:. 18 Horses, value $130 per head. ************ and which have been received by said company for themselves and on behalf of connecting carriers for transportation, upon the following terms and conditions, which are admitted and accepted by me as just and reasonable :— First. — To pay freight thereon to said company at the rate of $30 per car and all back freight and charges paid by them, hereby agreeing to send a proper person or persons in charge of said stock, and hereby assuming all the risks of damage and injury to, delay, depreciation, and escape of said stock while in transit, and releasing the said company and other carriers from all claims or demands therefor, except when proved to have occurred through gross negligence. ************ Third. — When necessary to transport said stock to point of destination over the line of any other carrier or carriers, delivery of the same to such other carrier or carriers may be made, and, in receiving the same for transportation, all the terms and conditions hereof shall inure to and be binding on such carrier as if originally made with them; and one carrier shall not be liable for the gross negligence of the other. ************ Witness my hand and seal this 31st day of March, 1885. Cornelius Raiordon, [l. s.] Shipper. Attest. A. S. McDaniel, Company’s Agent. The defendant then rested and requested the court to charge that under the terms of the bill of lading the verdict should be for the defendant. The court refused this instruction and without charge filed instructed the jury to find a verdict for the plaintiff for the value of the horse. The jury found a verdict for the plaintiff for $144.37 and, judgment being entered, the defendant thereupon took this writ assigning for error the refusal of the court to instruct as requested.
119 Pa. 584Press Co. v. Stewart (1888)
ERROR TO THE COURT OF COMMON PLEAS NO. 1 OR PHILADELPHIA COUNTY. No. 415 January Term 1887, Sup. Ct.; court below, No. 736 June Term 1883, C. P; No. 1. On July 31,1883, Sylvester N. Stewart brought an action in case against The Press Company, Limited, to recover damages for the publication of an alleged libel. The declaration averred that the occupation and business of the plaintiff at the time of the publication was that of a teacher of the arts of short-hand writing, type-writing and phonoscribing ; that he had pursued said business with credit and reputation, and had opened a school for the purpose thereof in a building on the corner of Thirteenth and Market streets, and had put up in a conspicuous, place outside said building a sign as follows : “ School of Clerks, Secretaries and Reporters ; ” had then and there obtained divers pupils, and he had always conducted himself in his said business with skill, etc., etc.; charging that the defendant without the knowledge of plaintiff had caused a reporter engaged on a newspaper called The Press, published by the defendant company, to Visit the plaintiff on July 12,1883, and that the defendant on July 13, 1883, had caused to be published in said newspaper of and concerning the plaintiff the following libelous publication: A School for Reporters. How Col. Stewart Proposes to Manufacture City Editors. On the northeast corner of Thirteenth and Market streets, there is a building. On the third story of the building there is located the office of the “ School of Clerks, Salesmen and Reporters.” A green and innocent Press reporter with a bucketful of trade dollars (in his mind’s eye) climbed up three flights of stairs yesterday afternoon to have a talk with the proprietor of the “ school.” Colonel Stewart, the principal, was seated in a 6x8 anteroom, north of the “ school.” He was not particularly enthusiastic over the prospect of the “ school’s ” prosperity, or the visitor’s chances of becoming a bloated millionaire. “ Are you a short-hand writer ? ” was the first question he asked. “ No, sir,” replied the visitor. “ Do you wish to become a salesman ? ” “ No, sir.” “ Are you after a position as amanuensis in a mercantile house ? ” “ No — I would like to be a reporter.” “Well,” said Col. Stewart, as he tugged at his beard, “the school is intended as a place where persons can learn shorthand, type-writing and phono-scribing.” “ But,” ventured the visitor, “ cannot a man become a reporter without understanding short-hand? Is that a requisite ? ” “ For sermons and speeches it is,” was the reply. “ The class of reporters you refer to are known as city editors; they are all gentlemen of high education, and are generally graduates of colleges. Newspapers are besieged constantly by applicants for such positions. These men are not reporters ; they are city editors; there are about three dozen of them in the city.” “ Oh! ” said the reporter. “Yes,” continued Colonel Stewart, “it requires a vast amount of experience to become a city editor — you must be wéll educated, and have a general knowledge of — ” “ Suppose,” interrupted the green reporter, “ that a reporter is sent to a fire in a large pretzel establishment, must he — ” “ Certainly,” responded Colonel Stewart, “ of course he must. It requires mén of classical education. We do not pretend to instruct applicants for such positions. The school teaches short-hand and type-writing and phono-scribing, but a change is to be made here shortly. I would advise you to consult with Mr. Kerr, who will take charge in a few days. Mr. Kerr has an office on Walnut street. He is twenty-four years of age. He will tell — ” “ Ta-ta,” said the applicant. “So-long,” responded Colonel Stewart. “If you want to learn any of the branches — $20 a quarter — good-by ! ” The cause came on for trial under the plea of not guilty on November 10,1885, when the following special pleas were filed by leave of court: 1. The defendant, for a further plea in this behalf, comes and says: That the plaintiff ought not to further have or maintain his aforesaid action thereof against it, because it says that it is true as stated in the article complained of in the plaintiff’s declaration, that in the third story of a building on the N. E. corner of Thirteenth and Market streets there was located the office of the “ School of Clerks, Salesmen and Reporters:” that Colonel Stewart was the principal of the school, and that he was not particularly enthusiastic over the prospects of the school’s prosperity, and this the defendant is ready to verify; wherefore it prays judgment whether the said plaintiff ought to further have or maintain his aforesaid action against it. 2. And for a further plea in this behalf, the defendant comes and says: That the plaintiff ought not to further have or maintain his aforesaid action thereof against it, because it says that it is true, as stated in the article complained of in the plaintiff’s declaration, that Colonel Stewart, the principal of said “ School of Clerks, Salesmen and Reporters,” had an interview with Vincent S. Cooke, wherein the following conversation occurred: [here follows the conversation reported in substantially the same form as in the alleged libelous publication, a few of the embellishments being omitted.] And this the defendant is ready to verify; wherefore it prays judgment whether the said plaintiff ought to further have or maintain his aforesaid action against it. 8. The defendant by leave of court first had and obtained, for a further plea in this behalf comes and says, that the plaintiff ought not to further have or maintain his aforesaid action against it, because it says that the said article contained in the plaintiff’s declaration, is a just and true account of an interview had between the said plaintiff, Sylvester N. Stewart, and Vincent S. Cooke, who was a reporter upon The Press, a newspaper published by the defendant, and this the defendant is ready to verify; wherefore it prays judgment whether the said plaintiff ought to further have or maintain his aforesaid action against it. To the first special plea the plaintiff demurred, as insufficient in law, and assigned as ground that it proposed a false and frivolous issue and averred facts which if found by the jury to be true would not establish a defence. To the other special pleas the plaintiff replied their untruth in point of fact. In the testimony taken, requiring three hundred printed pages to contain it, not including the exhibits of circulars, letters, etc., in evidence, it appeared that in 1883 the plaintiff was conducting a school at the place designated in the deciar ration, advertised extensively by conspicuous signs upon the building and by circulars distributed by mail and otherwise, worded in such a way as to attract attention, and describing the school as, “ The National School of Clerks, Salesmen and Reporters. Teach Phono-scribing, Brief Long-Hand, Writing Machines and Phono-scribing. Our Schools Teach All that Can be Taught in Other Short-Hand Schools, and Phonoscribing in Addition, which No Other Schools are Permitted to Teach.” About the time the article appeared in the defendant’s newspaper, the plaintiff sold out his business to G. H. Kerr and J. W. R. Collins, reserving a royalty for each pupil under the new management. The school was kept open by the vendees until the fall afterwards. During the trial many exceptions were taken to the admission or rejection of offers of testimony, not material for consideration as the case was decided. There was no evidence showing actual malice on the part of the defendant. The court, Peirce, J., charged the jury and answered the defendant’s points as follows: This is an action brought by Mr. S. N. Stewart against The Press Company, Limited, for an alleged libel which he says they published July 13,1883, respecting him and his school. [Any malicious printed slander which tends to expose a man to ridicule, contempt, hatred or degradation of character is a libel. Mr. Stewart alleges that this publication is of that character, and not only affects him in his good name and reputation and character, but also affected his business, and the profits and income which he claims he was entitled to receive by reason of his royalty in the business which he sold to the purchasers. Malice, gentlemen, is said to be malus animus, that is, a bad mind. It may not be a bad-mind directed against a particular individual; if it were, and if the object were revenge, injury and wrong to a particular individual it would be special malice; but a man may have the malus animus, the bad mind existing, and exercising it in a general way, and then it is sometimes referred to as general malice.]1 As, for instance, if a man should fire promiscuously into a crowd, not knowing a solitary individual, he has the bad mind, he has malice, and wantonly inflicts injury without even knowledge of the particular persons against whom the malice is exhibited. [Now the question that is submitted to you is whether this article is a malicious publication, tending to expose the plaintiff to injury, contempt, hatred, or degradation of character, or tending to injury and hurt of his business. In determining that question you will look at it carefully; you will take the article, and read it for yourselves. The principal complaint made against it is, that it holds him up to scorn and contempt; that it ridicules Mm. It speaks lightly and indifferently, to use a very mild term, of his school.] 8 When I say, to use a mild term, I do not mean to designate, even by implication,' the character in which reference is made to the school, but that is the allegation wMch is made respecting tMs particular libel. [Now, a part of the defence, here, rests upon the fact that this was a publication by a public newspaper in the interest of society and of the people, and that therefore it is not to be regarded as wanton and malicious, for the end and purpose of it was to protect society against a wrong, and that the article was a fair criticism of what the reporter learned respecting Mr. Stewart and Ms school. It has been well said in respect to the liberty of the press that it should at all times be justly guarded and protected-; but so should the reputation of ah individual against calumny — the right of each is too valuable to be encroached on by the other. The law, gentlemen, is the humane protector of us all. The man of power needs the protection of the law, and the weak; we all need its protection, and the law is so universal, like the air which encircles us, which we breathe, that its beneficent control and care and supervision is about us all. It should be the high ambition of those who are strong and powerful not to encroach upon the weak, but to do that which the law does, throw around the weak their protecting care. Therefore the law does not encourage any wanton assault of any one, great or small, strong or weak; least of all, will it encourage an assault by the strong upon those who are weak. But all men are equal before the law which makes no distinction in its protecting care, and you, gentlemen, are just as absolutely bound in tMs case to protect the rights of the defendant here, as you are the rights of the plaintiff. Some allusion has been made, and some terms have been used here, ' in reference to Mr. Stewart’s peculiarities. He has been referred to as a crank. The law protects cranks and punishes them, too; for if a man who is a crank commits a crime, the law visits him with the effect of his crime, even to public execution and death, unless his mind is so perverted that it was impossible for him to know what the crime was that he had committed. And so the law jealously and carefully throws around him its protecting arms, so that neither private persons, associations, individual writers, or writers for the press, have any more right to assault a man who has Ms peculiarities and is brought within what is referred to as “a crank,” than it has to assault the highest and best citizen.] 3 These are general remarks. I do not apply this term to anybody, and I only refer to it because it has been adverted to here, and some evidence has been given respecting the particularities and peculiarities of Mr. Stewart. [You have heard the evidence. A part of the evidence refers to attempts said to have been made by Mr. Stewart to influence and induce certain witnesses who were examined here to commit perjury. If you are satisfied from the evidence that he did endeavor to induce these persons to commit perjury in this case, then of course, gentlemen, it must affect and ought to affect your estimate of his testimony, so far as it refers to any doubtful matter.] 4 His answer to that is — and a witness has been submitted to you here for the purpose of showing that the principal conversations in which it is alleged that he endeavored to persuade these parties to commit perjury — that the object was not for that purpose, but to induce them to tell the truth respecting the extent of his interests in the alleged royalty. You have heard all that testimony. It is for you to pass upon it. You have heard the charge made against him and you have heard the explanation of it. [Relative to the measure of damages in such a case as this, if the plaintiff has been libeled, your verdict should determine that question in his favor. Then you will take into consideration not only the injury, if any, that was done to his business, and to what extent that was affected, but you will also take into consideration the personal wrong done to him, the vexation, harassing and annoying to his personal feelings, if he was so affected by this libel. Relative to the injury done to his business, there is no allegation that he did not get the full value of the sale that he made to Messrs. Kerr and Collins. That was sold just as it was agreed to them before the publication of this article ; but his allegation is that it affected the public mind as against his system, and his opportunity and right to teach it, and also affected the possible or probable income from a royalty which he had sold to Messrs. Kerr and Collins; and if you find those facts to be so, these are proper considerations for you in estimating the damage.]5 We all know the value of the public press; we all know, rightly conducted, it is our protector, and the protector and preserver of our institutions ; we also know that it is an instrument of great power, and wisely and well wielded cannot be too highly commended; [but we also know that by reason of its power, of its influence, and the extent of its power, its far-reaching power, it is going where private individuals cannot .go, meeting thousands where the individual can meet but few. So also is its responsibility great, and it is your duty to protect the press in all its rights, just as it is your duty to protect the individual in his rights of self-respect, of self-preservation, of guardianship and protection from calumny and wrong and slander and malice.]6 The duty is equal. Both are entitled to protection at your hands, and the law gives them equal protection, and I am sure, gentlemen, after the patience and attention which you have given to this cause, and after the able arguments of counsel on both sides, you will not be disposed to disregard the right of either. I do not know that it is necessary for me to say anything more, except to pass upon certain points which have been submitted to me by counsel for the defendant: The following are the points presented by the defendant and the answers thereto: 1. Want of proof on the part of the defendant that the supposed libel was true, is not enough to prove malice; and before the plaintiff can ask the jury to find that the publication was malicious, they must first show that the charge was false and that the defendant knew at the time of publication that it was false, or that the defendant was actuated by mischievous or malicious motives. . Answer: The first point I decline.7 2. Although falsehood may be evidence of malice, the mere falsity of a publication, without its being shown that the defendant knew it to be false, is not of itself evidence of malice. • Answer: The second I decline.8 3. If the jury believe that the defendant published the alleged libel, not for the purpose of gratifying personal malice against the plaintiff and to do him mischief and injury, but from an honest and fair purpose for public information, your verdict should be for the defendant. Answer: I affirm that point, with this qualification: when the. information is such as the public have an interest in knowing, it then amounts to a privileged communication.9 4. If the jury believe that the matters complained of in the said alleged libel were true or substantially true, they are bound to find, in the absence of any evidence showing malice on the part of the defendant, a verdict for the defendant. Answer: The fourth I decline.10 5. Inasmuch as a pecuniary loss is the gist of the action for libel, if the language contained in the alleged libel has not occasioned the plaintiff any pecuniary loss, actual or implied, no action can be maintained and your verdict should be for the defendant. Answer: The fifth I decline.11 6. The onus of proving malice lies on the plaintiff; the defendant cannot be called upon to prove that he did not act maliciously, until some evidence of malice, more than a scintilla, has been adduced by the plaintiff. Answer: I affirm that, with this qualification: but malice may be inferred from the publication itself.18 7. Even if the words contained in the libel are proved or admitted to be false, it is no evidence of malice unless evidence be also given by the plaintiff, to show that the defendant knew they were false at the time of publication. Answer: The seventh I decline.13 8. The requisites of a libel are three; the language complained of must be defamatory, false and maliciously made. When the necessary consequences of the language must be pecuniary loss, then it is defamatory, per se ; but, if the language is such as may result in pecuniary loss, then it is not defamatory per se, and in such a case the law will not infer malice. But it must be proved as a fact by the plaintiff that the defendant, in making the publication, was actuated by malice, and in addition that he has suffered pecuniary loss, which was the necessary result of the publication. Answer: The eighth I decline.14 9. Where language is alleged to be concerning the person and also concerning the affairs of that person, then the allegation of falsity is material, and the plaintiff must show that the language complained of is false, that it was maliciously published and that the publication as a necessary consequence occasioned pecuniary loss to him. Answer: The ninth I decline.15 10. The language complained of in this case is of the plaintiff in his business or trade, and in such a case it is not sufficient that this language disparages him generally, or that his general reputation may be thereby affected. It must be such as would disqualify him or render him unfit properly to fulfil the duties incident to his special business, and before language published of one in his trade or business can be considered actionable per se, it must impute to him fraud, want of integrity, misconduct in the line of his business, or such ignorance or other incapacity as unfits him for its proper exercise. Answer: The tenth I decline.16 11. If the jury believe that the plaintiff requested either Mr. Kerr or Mr. Collins to swear upon the trial in this case to any facts or fact which were not true, then he is entirely unworthy of belief and the jury should disregard his testimony. Answer: I affirm that with this qualification: which were untrue and which he knew were not true; it is not enough for the thing to be untrue, but in order to make the crime perjury or false swearing, it must be wanton and wilful.17 12. If the jury believe that the publication complained of is a fair and true account of an interview had between the plaintiff and Mr. Cooke, your verdict must be for the defendant. Answer: The twelfth I decline.18 18. The plaintiff in this case having advertised a public school, inviting the public to patronize it, the school thereby became a matter of public interest, and if The Press honestly and with fair intention of exercising its vocation,' fairly and with reasonable moderation and judgment published the article complained of, your verdict should be for the defendant, even if the writer fell into slight errors as to facts and went beyond the limits of strict truth. There is no limit to such comments, except malice in fact. Answer: I affirm that, simply re-uttering the statement that it is not necessary that express malice should be proved. Malice may be inferred from the publication itself.19 15. If this publication was a matter in which the public was concerned and was proper for public information, the occasion prevents the inference of malice, and if there was no actual malice the publication is protected, and this protection is not restricted within narrow limits. Answer : I affirm this, with the former qualification that it is not necessary it should be express malice. Malice may be inferred from the publication itself.80 The jury returned 'a verdict in favor of the plaintiff for $1,200. A motion for a new trial was entertained, which motion on January 16, 1886, was overruled by the court in banc, Biddle, J., filing an opinion, which in part was as folfows: The rule of law as laid down in the text books will be found in Townsend on Slander, §§ 399 and 244 b. where all the authorities, English and American, are collected. In § 399, he says: “ The language itself, whether oral or written, may be evidence of malice, and when the occasion renders the publication prima facie privileged the jury may take the language into consideration, to determine the intent with which the publication was made. Any expression in excess of what the occasion warrants may be evidence of malice.” And again, in § 244 b.: “ Expressions in excess of what the occasion warrants do not per se take away the privilege, but such excess may be evidence of malice.” Our own decisions, see Pittock v. O’Niell, 63 Pa. 253, are in entire accord with this view of the subject. The Supreme Court of Massachusetts, in Miller v. Butler, 6 Cush. 71, held “ that in judging of the malicious character of an alleged libel the jury may take into consideration the whole publication; and if it contains statements concerning other persons which are malicious, the jury may infer therefrom that what is said of the plaintiff is also malicious.” These familiar principles have been reiterated in the case of Neeb v. Hope, 111 Pa. 145, recently decided by our Supreme Court and just reported. Says Mr. Justice Tkttnkey : “ It is a matter of law for the court to determine whether the occasion of writing or speaking criminatory language, which would otherwise be actionable, repels the inference of malice, constituting what is called a privileged communication; and if there is no intrinsic or extrinsic evidence of malice, it is the duty of the court to direct a nonsuit or verdict for defendant. If the communication contains expressions which exceed the limits of privilege, such expressions are .evidence of malice, and the case shall be given to the jury.” The present case belongs to that class where the character of the publication must be the main evidence to determine the intent. The plaintiff’s complaint was that the article was intended to hold him up to public ridicule, and was in no sense intended to be an honest or fair notice of his school. In a case of that sort the truth of the accusation is best determined by reading the article. As in the case of an alleged caricature, the exhibition of the picture best determines the intent, and it is for the jury to say, after inspection, whether it is want of skill simply or design that makes it ridiculous. And there is no better test. The question is how the publication would strike the ordinary observer. So in this case, the publication was not of a serious character, and the judge, expressing no opinion on it, left it for the jury to say what inference should properly be' drawn from it; whether it was intended to expose the citizen to ridicule, or to criticise fairly his school. Assuming the law to be as we have stated it, were the instructions of the judge in accordance with it ? We have in Pennsylvania a statute which requires a judge to answer, on the spur of the moment, any points of law submitted to him before the close of the argument to the jury. They are sometimes presented to procure accuracy of ruling; more often, perhaps, to procure inaccuracy, for subsequent use on a motion for a new trial. These points are drawn with great adroitness before the trial, and a lawyer has very hard luck if, out of fifteen or twenty of them, he cannot get some expression in one, which subsequent investigation may enable him to make use of. In considering them they must in fairness be considered together and as a part of the charge, and if in that connection they are believed not to have misled the jury, but to have substantially given proper instructions, the verdict is maintained. The 6th point was in these words: “ The onus of malice lies on the plaintiff; the defendant cannot be called to prove that he did not act maliciously until some evidence of malice, more that a scintilla, has been adduced by the plaintiff.” To tins the judge replied: “ I affirm this, with the qualification, that malice may be inferred from the publication itself.” This is said to be inaccurate, and it is contended that the judge should have said “not from the publication itself,” but “from the contents of the publication itself; ” that it might have been inferred by the jury that the judge meant that they could infer malice from the mere fact of publication without regard to the contents of it. Perhaps if the judge had been discussing the law of libel with a lawyer, he might have so said, as the distinction undoubtedly can be taken. It must, however, be remembered, that while these points are drawn by lawyers, the answer is not addressed to them, but to the jury, and the question is whether they would ever think of such a distinction. If a person should say that he inferred from the publications of Mr. Thackeray that he designed to hold up to ridicule many classes of persons, it would surely never enter the mind of any one to suppose that he inferred it from the fact of his having published books, without reference to their contents. The 14th point was read twice and affirmed, once without the word “ outrageous,” subsequently with it, and, at the request of a juror, read a third time and affirmed. It was in these words: “ If you find that the subject matter of this article was a matter in which the public was concerned, then the communication was privileged, and your verdict should be for the defendant unless that you find that the report was so unreasonable and outrageous that no person could honestly have made it upon .the materials before him, and was the result of actual malice.” This, in his own words, gave to the jury the very fullest instruction on this point that the defendant had any possible right to ask for. It is further contended by the defendant, “ But even if the publication amounted to a libel, if it were a correct report of the words and language used by the plaintiff, the verdict should not stand.” We do not think, however, that in all cases “ a correct report of the words and language used by the plaintiff ” absolves the defendant from liability. A publication may very accurately state the words and language used by the plaintiff, and yet by punctuation, marks of exclamation, marks of admiration or quotation marks, throw them into ridicule. A ridiculous heading, interjection of slang words or phrases and ideas suggested as passing through the mind of the reporter, would have the same effect. And it is complained in this case that wherever the plaintiff is spoken of as the proprietor of “ a school,” it is always between inverted commas, intended to convey the idea that the designation is misapplied and absurd. The question is not alone, therefore, whether the language used by the plaintiff is accurately reported, but whether the interview has not been discolored and garbled by the comments incorporated in it, in a way to make the plaintiff ridiculous. This we think should properly be left to the jury to decide. Judgment having been entered upon the verdict the plaintiff took this writ assigning as error, inter alia: 1-6. The parts of the charge embraced in [ ] 110 6 7-20. The answers to the defendant’s points.7 to 80
119 Pa. 604Avery v. Layton (1888)
ERROR TO THE COURT OE COMMON PLEAS OE WYOMING COUNTY. No. 139 January Term 1888, Sup. Ct.; court below, No. 183 April Term 1878, O. P. On February 23,1878, judgment bad been entered in tbe Court of Common Pleas of Wyoming county in favor of C. L. Lafferty, Tbe First National Bank of Towanda, Samuel Howard, Charles Hawley and A. J. Layton, tbe latter being the sheriff of Bradford county, Pa., against E. F. Avery, upon a penal bond executed by said Avery in the sum of $1,500, dated February 22,1878, reciting that upon certain executions issued out of the Court of Common Pleas of Bradford county the said sheriff had levied upon certain personal property alleged to be the property of Cyrus Avery and sold the same, on being indemnified by the other obligees, and that one A. R. Brown and said E. F. Avery claimed said property at the said sale thereof, and conditioned that the said E. F. Avery would well and truly indemnify and save harmless the obligees, etc., from every and all manner of suits, actions, costs, charges, claims and demands of said A. R. Brown and E. F. Avery or either of them for or by reason of said levy and sale. On August 18,1883, a scire facias having issued to revive the foregoing judgment, proceedings were begun to open it to enable a defence to be made, which resulted in the awarding of an issue on August 14,1884, the bond to stand for a declaration, the defendant to plead the general issue and payment with leave, etc. At the trial on November 16, 1885, before Elwell, P. J., 26th district, holding special term, the testimony showed that in March, 1877, one J. P. Kirby issued execution upon a judgment he held against Cyrus Avery, a merchant in Bradford county, father of E. F. Avery, a dentist of Wyoming county. This judgment and execution were assigned by the plaintiff therein to E. F. Avery and his uncle, A. R. Brown. There was another execution in the sheriff’s hands, and also two writs of testatum fieri facias from the Court of Common Pleas of Wyoming county, in favor of E. F. Avery against Cyrus Avery. The personal property of Cyrus Avery was all sold upon these writs, purchased by E. F. Avery and A. R. Brown, and the proceeds applied to the said executions. Subsequently, C. S. Lafferty, The First National Bank of Tamaqua, Samuel Howard and Charles Hawley issued executions upon judgments in their favor against Cyrus Avery, levied upon and sold the same property previously sold to E. F. Avery and A. R. Brown, who attended the sale and gave notice of their claim of ownership. ' On August 7, 1877, after the foregoing sales, proceedings were begun in Bradford county against Cyrus Avery by warrant of arrest under the act of 1842, eventually resulting in his discharge by the court upon his giving bond to proceed to apply for the benefit of the insolvent laws. While these proceedings under the act of 1842 were pending against Cyrus Avery, both Cyrus Avery and E. F. Avery were arrested and jointly indicted in the Quarter Sessions of Bradford county, charged with a conspiracy to defraud the creditors of Cyrus Avery. On February 9, 1878, the defendants were tried and found guilty upon said indictment, but sentence was postponed till February 23, 1878. On the morning of said date the bond in controversy, dated the day before, was executed by E. F. Avery. The defendant in the issue introduced evidence claimed to establish, that after said conviction the plaintiffs agreed with him that upon payment by the latter of the plaintiffs’ unsecured claims against Cyrus Avery and the giving of a release to plaintiffs of all damages they might be liable to by reason of the second sheriff’s sale of said personal property, the plaintiffs wrould appear in court and secure a nominal sentence upon the indictment; that the release was drawn up, but Brown refused to sign it; that the defendant, however, paid or secured all the unsecured claims of the plaintiffs against Cyrus Avery, took assignments of a portion of them, and paid $200 to the plaintiff’s counsel for services rendered in the prosecution of the indictment; that, on the' morning of February 23, 1878, the day of sentence, the plaintiffs presented to defendant the bond in controversy, dated and drawn the day before, and said that A. R. Brown might cause them trouble and they would not make any statement to secure a nominal sentence unless the defendant would sign the bond; that when the defendant refused, the plaintiffs said the law would then have to take its course, and when the defendant asked what that was, the plaintiffs replied that it was a penitentiary offence; that immediately thereafter the defendant under excitement and duress signed the bond, and went into court with his father Charles Avery when they were sentenced upon the indictment, each to a fine of $5 and costs; wherefore it was claimed that said bond was void. On the part of the plaintiffs it was claimed from the testimony that the negotiations resulting in the giving of the bond were first suggested by the defendant, that the release referred to was to be the basis of a recommendation to clemency, and that when Brown refused to sign the release, the bond of indemnity was given in lieu thereof. E. F. Avery, the defendant, having testified, as before stated, in his own behalf, on his cross-examination the plaintiffs offered: The plaintiffs’ counsel now propose to ash the witness whether he has not brought a suit against the sheriff of Bradford county for the sale of the property. . The defendant’s counsel object: (1) that in chief they only examined the witness as to wdrat took place at-the time the bond was signed and the question proposed is not an inquiry about anything to which the attention of the witness was called in chief and therefore is not cross-examination; (2) the defence to the bond in suit is that the. consideration was illegal and it makes no difference whether the witness had brought a. suit against the sheriff of Bradford county or whether he has not; the proposed evidence is therefore immaterial and irrelevant. By the court: I do not think this would be evidenpe in any other respect than as showing the situation of the witness, that he has brought suit against one of the plaintiffs or is in litigation with him. He is making a claim, has a suit, he is witness and you may ask him his relation to the parties. The evidence is admitted.1 Under this admission the defendant testified that suit had been brought in the Court of Common Pleas in Bradford county against Sheriff Layton in the name of Brown and Avery, and that the suit was pending untried. In the plaintiffs’ rebuttal case : The plaintiffs’ counsel offer in evidence judgment in Wyoming Common Pleas, No. 408 April term, 1877, E. F. Avery against Cyrus Avery, together with the testatum fieri facias and the return. Also, judgment No. 409, with the note, testatum fieri facias from Wyoming county, and the return of the sheriff upon it showing most óf the goods were sold to E. F. Avery and A. R. Brown: For the purpose of showing that these are the two notes and judgments alleged in the indictment as being fraudulent and made in conspiracy between Cyrus Avery and Edward F. Avery for the purpose of defrauding the creditors of Cyrus Avery; to identify these judgments and notes as the ones named in the indictment. The defendant’s counsel object to the evidence offered: (1) that it is immaterial and irrelevant; (2) that it is not rebutting to any testimony given by the defendant to the defence to this bond. By the court: We will admit this evidence. It is not for the purpose of going back and showing a conspiracy, but relating to matter cited in the indictment and in the bond also. I think it is admissible for the purpose of showing that there was something to indemnify against, and whether the indemnity was a valid one or not is' another question. The evidence is admitted.8 The court, Eiavell, P. J., instructed the jury and answered ■the points presented as follows : As the case stands to-day the only object is to ascertain whether the bond when given was a valid obligation, and the verdict which this jury is to render is upon that point. You have nothing to say in regard to any amount which may be recovered upon the bond, if the plaintiffs are entitled to recover, but to pass upon the subject simply whether these plaintiffs have a right to hold that bond in order to be indemnified against, any suit which may be brought against them in trespass. Therefore, the verdict will simply be in favor of the plaintiffs if the jury find it was a valid one, and in favor of the defendant if they find it was invalid. The history of the case, as we learn from the evidence, is that at April term, 1877, E. F. Avery entered two judgments against Ms father, Cyrus Avery, for the amounts which you have heard mentioned here ; one judgment for fifteen hundred dollars, and one for two thousand dollars with some payments indorsed upon it. On the judgments entered upon those notes, writs were issued from this court to Bradford county and placed in the hands of the sheriff to levy upon the property, a list of which has been read in your hearing, and which was sold some time in the spring of 1877. [These plaintiffs, being creditors of Cyrus Avery, alleged that those judgments were given for a fraudulent purpose ; that they were not bona fide; that it was a transaction between father and son; and that the father having become embarrassed in his business transactions, in order to make a feather bed to rest himself upon, got his son to agree to cover up the property so that the creditors could not reach it.]3 Under that allegation these plaintiffs issued an execution against Cyrus Avery, alleging that because the judgments of the son were fraudulent they were therefore worthless and did not stand in the way of creditors levying upon the property which had been bought in on those fraudulent judgments. The purchasers at that sale were E. F. Avery and A. R. Brown. Mr. Brown was a relative, and whether he would be affected by the fraud of the father and son is not very important here, because he is not a party to this suit. [These plaintiffs issued their execution, levied upon that property and sold it to different parties at sheriff’s sale; other persons became purchasers and the moneys received from that sale were appropriated by the sheriff upon other claims, so that a portion only, I believe, of the executions were paid by those sales.]4 Now, that left the sheriff who made that sale, and the plaintiffs who procured him to make it, liable to A. R. Brown and E. F. Avery in an action of trespass, if that was a bona fide sale to them of the property of Cyrus Avery. It was fair to presume that Brown and E. F. Avery were making a claim, for the property was sold on the judgments of E. F. Avery and they had become the purchasers. Matters were in that situation when these creditors instituted a proceeding against Cyrus Avery under the act of 1842. The title of that act is “ An act to abolish imprisonment for debt and punish fraudulent debtors.” Such proceedings were had that a warrant of arrest was issued by his Honor, Judge Morrow, of Bradford county, and Cyrus Avery was arrested and brought before him on the charge that he, Avery, was assigning, transferring and making way with his property fraudulently and to cheat his creditors. The judge heard that matter, according to what appears here, at consider-, able length, occupying several days, and a final adjudication was made by him, if I have the dates right, on August 17th, holding Cyrus Avery to bail as provided by that law..... Subsequent to that order a complaint was made against Cyrus Avery and E. F. Avery which culminated in the indictment, which, has been read in your hearing, against them in the Quarter Sessions of Bradford county. And, without following it particularly by date, it came on for trial on the 6th day of February, 1878. The trial occupied some two or three days and a verdict was rendered on the 9th day of that month finding the defendants guilty in manner and form as they stood indicted, to wit: that they had conspired together by agreement, to cover up the property of Cyrus Avery and otherwise conceal it for the purpose of defrauding his creditors, for that is what is meant by conspiracy..... Of course, the adjudication of that court is conclusive upon the fact that these parties conspired together. It has not been contradicted collaterally nor has it been attempted to be controverted in this action. Thus far there is no contradiction in the case. We come now in the regular order of events to consider what next occurred after they were convicted. [You will perceive that there was a lapse of time from the 9th to the 28d of February, within which it is testified by some of the witnesses there was some talk in regard to the settlement of the claims against Cyrus Avery, and that there was a release to be signed by E. F. Avery and Brown prepared, whether upon the Thursday of the week of the sentence or some other day in that week is not definitely fixed by the evidence, nor is it very material, further than this, that before anything was said, so far as the evidence shows, about what was to be done with the criminal prosecution, there came up this question of getting a release from Avery and Brown.]6 Mr. Avery says he recollects very little about the release business and it will be for you to say whether he did not take that release, go to Brown and endeavor to get it signed by him, and whether it was not understood, at the time the release was prepared, that the signature to that would be a settlement of the matters, upon his paying the claims of persons which had not been satisfied by this sheriff’s sale. There were some of these creditors that were not execution creditors and they received nothing upon those sales, so that the release did not affect them or take them into consideration at all. Mr. Brown declined to sign the release. The plaintiffs allege that it was then suggested that Mr. Avery should give a bond of indemnity to those plaintiffs who sold the property the second time, and they also allege that this bond was given in lieu of the release which Avery had supposed he could procure but did not. The defendant alleges that the bond was procured from him under these circumstances: He had been convicted and not yet sentenced. There was some talk about adjusting the debts, and. he says the first he heard in regard to the bond was on Saturday, the day when they were to be sentenced. The bond was then produced and he objected to signing it, and he testifies that he was- told in substance that as the release was not procured the proceedings must go on and the law take its course, unless he would sign the bond; that if he did execute the bond the sentence would be light, “nominal,” as it was called; and, upon inquiring what “nominal” meant, he was told that five or ten dollars and the costs would be all, and that he was then told unless he did sign it the sentence might be a penitentiary offence. On the strength of that he signed the bond, and on the way to the court house he met Mr. Foyle, who also held a claim; that Foyle stated that some of the counsel said his claim must come in; that he then gave liis note for that and also for the other claims of the plaintiffs not embraced in those executions that had been satisfied by the sale..... Under Mr. Avery’s testimony it is argued that advantage was taken of his situation, that his counsel was not present and that he was led on to signing the bond by wrongful representations or by that which amounted to a threat. On the other side there is evidence, all of wMch. you will no doubt distinctly remember, that Mr. Elsbree, who seemed to be rather the protecting counsel of Mr. Avery, said, when the propositions for settlement by giving a bond and paying the debt, etc., were made, “if the debts are satisfied we will run our risk as to the sentence,”..... Now, in regard to the consideration of the bond aside from the matter of getting the sentence reduced. The man who conspires with another to defraud a third person is liable in a twofold manner. The offence of conspiring is a public one; it is against the commonwealth; it is detrimental to the interests of society, and persons who put their heads together to do a wrong the law punishes criminally. But if a private individual is injured in any manner by the conspiracy he has his remedy by a civil action. Although the commonwealth may have asserted her claim upon the party for punishment because of the offence, the private right remains still to be redressed. It would be intolerable that because a man was indicted and punished the individual whose property is taken and whose interest is jeopardized should go without compensation. Therefore, the law allows private injuries to be compensated for by the party who has caused them to be committed. So that, if by the conspiracy between Cyrus Avery and his father the plaintiffs in this case were induced to make costs in endeavoring to get their pay, and were misled by the appearance of fraud, it would be competent for E. F. Avery to secure them against any loss that might happen because of any attempt of his to defraud them. He would be doing nothing more than what was his right and his duty to the other party. [So that if this bond was given for the purpose of making good any loss which these parties might sustain because of the conspiracy, so far as that is concerned, it would be a good consideration.] 6 But, gentlemen, even such a bond as that, for such a purpose, could not be obtained and held to be valid if the party receiving it as part of the consideration entered into an arrangement to thwart the law and the commonwealth in its operations against the man. So, where there is a criminal prosecution and the party injured agrees to stop that prosecution, not to appear or in any way affect it, for a compensation or for the purpose of getting what he claims to be his due, the law holds an instrument, obtained under such circumstances, invalid. If the object and purpose in taking an instrument in writing, bond, obligation, note or anything else, be to thwart the cause of justice, and turn it aside from its proper channel, it would be invalid because illegal, and the object and purpose would be contrary to the policy of the law. Nothing should transpire to prevent justice being administered. [I can very well understand that there would be a difference between that case, where parties stopped a prosecution where it had been commenced, dropped it on receiving compensation, or on receiving an obligation that was still executory, and where he has followed it through to the end of the law and obtained a conviction. There he has so far performed Ms duty to the public. If a public wrong is committed it should be prosecuted not only for the punishment of the offender, but for the protection of the community against others in like cases offending. And where a party has prosecuted a case to the end, I don’t think it would be sufficient of itself to defeat an obligation that he might take by his saying to the court, the party has satisfied me.] 7 If a man obtain money from another by false pretences, is prosecuted for it and convicted and returns and pays the party for it, no law forbids the statement of such fact to the court. In cases of assault and battery and many other cases of that nature where a private wrong is connected with it, the prosecutor may say to the court, the party has satisfied me M the case, and let the court dispose of the matter as it may think justice to the public requires. If that is wrong it is often done in courts and, so far as I know, has never been considered a violation of law on the part of the court or as wrong on the part of the prosecutor. What I consider to be wrong, would be, if a party was compelled to do an act which he would not otherwise have done except for a threat on the one hand and an implied promise on the other; a threat that sentence should be severe if he did not settle with Mm, and a promise it should be light if he did settle with him. When the thumb-screw of a prosecution is made use of for the. purpose of wringing money from a man or wringing an obligation from Mm, and thus imposing what is called duress upon Ms mind and causing him to act through fear, such an obligation as that might be, and probably would be, void, while a voluntary one given by a party would be good, although he had been prosecuted and convicted..... Then the notes that were .taken by Mr, Kinney were brought here and sold to Mr. Bunnell and the defendant said to Mr. Bunnell, according to Mr. Bunnell’s testimony, that they were all right. This was on the same day when these obligations were given. If the bond was void, obtained by duress or by improper statements, it could not be confirmed, no matter what defendant may.have said to Mr. Bunnell about it or to anybody else. If it was fraudulent when it was made, it was always fraudulent and remains so still, no matter what he might say. [If, however, it was given, not for the purpose of affecting the legal proceedings against the defendant, but for the purpose of squaring things up and compensating the plaintiffs for the conspiracy, then this evidence can be made use of for the purpose of corroborating the claim on the part of the plaintiffs; ] 8 that after the business was done the defendant had said as to this part it was all right. If the bond was invalid and void because of the principle I have stated, then this evidence would not amount to any confirmation.of the bond. The counsel on both sides have presented points which the law requires me to answer, and in doing so I will necessarily repeat a part of what I have already said. But the law requires me to charge upon points, and I will do so. The counsel for the plaintiffs ask me to charge : 1. That where a private injury arises from a conspiracy of two or more persons, any such person or persons or conspirators are liable jointly and respectively in a civil action for all damages that such person or persons have sustained by reason of such conspiracy, and the same may be collected by law. Answer: This point is affirmed. It is substantially what I have charged you, and I again say that E. F. Avery and Cyrus Avery were jointly and separately liable to these plaintiffs for all damages that they sustained as well as damages that other persons may have sustained by reason of'the conspiracy, and without any criminal prosecution they could have maintained an action to recover their damages for the conspiracy.9 4. If the defendant, E. F. Avery, voluntarily gave the bond in suit to the plaintiffs in attempting to make restitution for the injuries they, the plaintiffs, had sustained or might sustain by reason of the conspiracy of the defendant and Cyrus Avery, and in consideration of the dismissal of the proceedings against Cyrus Avery under the act of 1842, as well as the assignment by the creditors of Cyrus Avery of their claims to E. F. Avery, defendant, and in settlement of any claims for damages by reason of such conspiracy, or for any of these purposes, then the bond is valid and is given upon a sufficient consideration and can be enforced. Answer: If the matters recited in this point shall be found by the jury to be the only considerations of the bond, the law is as therein stated.10 The counsel for defendant asks me to charge: 1. That the employment of criminal process to obtain civil redress is a misuse of the process and a fraud upon the law, and securities procured under the pressure of such a proceeding by the party promoting it cannot be enforced. Answer: This point is correct as a general statement of law and is applicable to this case, only providing the jury shall find a misuse of criminal process to obtain the bond in question. 2. It is an elementary principle that an agreement founded on a false conception is a nullity in respect to the party who misconceived, because he assented to it, not absolutely but on a condition not verified by the event; and that if the jury believe from the evidence that the defendant, from what took place at the giving of the bond and immediately prior thereto, believed that his sentence would be merely nominal and was induced, by reason of that belief, to sign the bond, the verdict must be for the defendant. Answer: I say to you that the first part of this point is correct as an abstract statement of law. I decline to affirm the latter part of the point, unless the jury believe that the counsel for the plaintiffs in the conspiracy case induced the defendant to execute the bond in question by stating to him that the sentence would be merely nominal if the bond were signed, but might be a term in the penitentiary if the bond was-not signed. The mere fact that the settlement was made shortly before the sentence was to be pronounced, would not of itself be sufficient to vitiate the bond. Upon another point, part of what is embraced in this will be explained.11 4. If the jurors believe that the defendant was induced to believe by the words, acts or conduct of the plaintiffs, or those representing them, that if he signed the bond his sentence would be a nominal one, and that upon inquiry he was told “nominal” meant a fine of five or ten dollars and costs, and that if he did not sign the bond the law would have to take its course and that the offence for which he'was convicted was a penitentiary offence, he under such circumstances was under duress and the bond would be void. Answer: This point is affirmed, provided the jury shall find that the words of the plaintiffs, or their agents, were to the effect that the sentence would be nominal if he signed the bond, but if he did not that the law must take its course and that the punishment might be a penitentiary punishment. If the jury find all that upon the testimony that has been given here, then I affirm that position, otherwise the point is not affirmed. If, when the defendant was refusing to sign the bond, he was induced to do it by a statement that he would go to the penitentiary if he did not sign it and the sentence of the court would be merely a nominal one if he did, and upon the strength of that he was induced to sign the bond, the bond would be void by the policy of the law. I have already charged you upon the question as to what did occur at that time and referred to the testimony that has been given in reference to it. Of that you are to be the judges.13 The verdict of the jury was in favor of the plaintiffs. A motion for a new trial having been refused, on June 17,1886, judgment was entered upon the verdict, when the defendant took tins writ, assigning as error: I, 2. The admission of plaintiffs’ offers.1 3 3-8. The parts of the charge embraced in [ ] 310 8 9, 10. The answers to the plaintiffs’ points.9 10 II, 12. The answers to the defendant’s points.1113
119 Pa. 620Miller v. Miller (1888)
APPEAL FROM THE DECREE OF THE COURT OF COMMON PLEAS OF BERKS COUNTY. No. 119 January Term 1887, Sup. Ct. On December 16, 1876, a bill in equity was filed in which Charles H. Miller and Elvira, his wife, in right of said Elvira, were plaintiffs and Henry H. Miller, defendant, which in substance averred: That Henry Miller died May 9,1864, devising to his two sons, Henry H. and Charles H., 188 acres of land charged with legacies amounting to $10,000, bequeathing to these sons the residue of his estate and appointing them his executors. That letters testamentary were granted to Henry H. Miller alone, who proceeded to administer the estate and filed a partial account on May 14, 1869, showing a balance in his favor as accountant of $5,126.32, the legacies, charged as aforesaid, being included among the credits of the account; and that subsequently this account was modified by the report of an auditor, filed February 26, 1870, and afterwards confirmed absolutely, finding a balance due the accountant of $5,424.12. That on March 23, 1872, one Reuben Klopp obtained a judgment against Charles H. and Henry H. Miller on a bond for $1,500, in which Charles H. was principal debtor and Henry H. his surety, the latter agreeing that he would see it paid out of the former’s interest in the estate; that execution was issued upon said judgment and, the debt having been paid by Henry H., he was subrogated to the judgment plaintiff’s rights and afterwards issued execution agains't Charles H. and levied upon the latter’s interest in the farm devised as aforesaid. That if a true account were stated between said Charles H. . and Henry H., including the amount of the Klopp judgment, a considerable balance would be found due to Charles H.; that, notwithstanding that fact, it was the obvious design of the defendant to get possession of the interest of Charles H. in the land by means of execution process and thereby sweep away the entire inheritance from him; that the defendant being the sole executor of the estate had had the entire control and management of the same since the testator’s death, and it would be unconscionable and inequitable to allow him to sell the interest of Charles H. .in said lands before a final settlement of the estate. That in the spring of 1871, Charles was found to be indebted to an amount exceeding $4,000, of’ which over $2,000 was owing to his wife Elvira, for debts paid and money advanced to him and about $2,000 to other persons; that, to prevent said Charles H. from wasting his estate by contracting additional debts and to secure the same for the benefit of himself and family, it was arranged that his entire interest in his father’s estate should be transferred to Ms wife, and, in consideration of the premises, the same was conveyed to said Elvira through Charles L. Bechtel, as trustee. That, if the property devised to Charles H. and levied on should be sold, under the uncertainty existing in reference to liens of judgments, as also the testamentary liens claimed by the defendant still to exist and to which he claimed to be subrogated, as well as the right of Elvira under said deeds, it was believed the property would be sacrificed. The prayers were: “ (1) That an account may be stated, under the direction of the court, between the said Henry H. and Charles H., of all matters growing out of the real estate devised to them jointly by the will of their father, Henry Miller, deceased. (2) That a proper decree may be entered for the balance which may be found due to the said Charles H., after deducting the Klopp judgment. (8) That the writ of venditioni exponas' be stayed and set aside or the said Henry H. Miller be enjoined to stay the same and that he be restrained by injunction from further proceeding on said writ.” (4) For further relief. A preliminary injunction was awarded and thereafter the defendant filed an answer denying all the material averments of the bill, and, issue being joined, the cause was referred to Mr. John Ralston, as examiner and master. During the contention before the master, on June 14, 1878, by agreement of the parties, the master, was appointed by the Orphans’ Court to review a second or supplementary account of Henry H. Miller, as executor of Henry Miller deceased, and, having considered the matters therein brought before him, found a balance due the accountant of $5,613.65, which included the •balance found due by the. report of the former auditor, but did not embrace the Reuben Klopp judgment. This report was modified by the court on exceptions filed and was confirmed, showing a balance due the accountant of $5,604.55. The master then proceeded to pass upon tlie controversies in the equity cause and, by a report filed December 30, 1878, and modified August 16,1880, upon a re-reference to him, found that Charles H. Miller was liable for one half of the testamentary charges upon the land devised, and, stating an account, found also that there was a balance due Henry H. Miller of $2,782.41; “hence Charles H. will owe Henry H. one half of this balance, to wit: $1,391.20.” On February 2, 1881, the court, Sassaman, J., dismissed all the exceptions filed, and ordered: “ The said master’s report is now approved and the account stated therein is confirmed absolutely.” No further proceedings were then taken in the cause for some time; but on the filing of the first report of the master on December 30, 1878, on motion the preliminary injunction was dissolved and it seems that thereupon Henry H. Miller pursued his execution on the Klopp judgment to a sheriff’s sale and became the purchaser of Charles H.’s interest in the land devised and by a summary process after three months notice ejected the plaintiffs in the bill from possession of the moiety sold and purchased. On January 21, 1886, Henry H. Miller, by his counsel moved that the following final decree be made: This cause came on to be heard and on the second day of February, 1881, the court dismissed the exceptions to the master’s report, and decreed that the said master’s report is now approved and the amount stated therein is confirmed absolutely. And now in consideration thereof, it is ordered, adjudged and decreed that the plaintiffs in this cause pay to the said defendant, Henry H. Miller, the sum of $1,391,20 with interest from the second day of February, 1881, and that the plaintiffs pay all the costs. Thereupon, to the form of this decree, Elvira L. Miller, as one of the plaintiffs in the bill, filed exceptions: 1. No decree can be entered against Elvira L. Miller, the wife of Charles H. Miller, in this proceeding, as a suit in equity by husband and wife, even for the benefit of the wife, is to be considered only as the suit of the husband. 2. The amount found due Henry H. Miller by the master’s report is only the debt of Charles H. Miller and not the debt of the wife, and therefore there can be no judgment or decree entered jointly against the husband and wife. 3. That under the allegations of the bill, and the purpose for which it was filed, viz.: To stay the execution by which Henry H. Miller, the above defendant, intended to sell the interest of his brother Charles in the real estate of his father, the defendant is not entitled to a decree against the plaintiffs jointly or against Charles H. Miller alone, for the sum of $1,391.20, and that the only decree that can properly be entered, is a decree for costs, so far as the costs may be unpaid, against the said Charles H. Miller. On the argument of the foregoing motion and exceptions, the court, Eementeout, J., filed the following opinion and decree: On March 23, 1872, Reuben Klopp obtained judgment against Charles H. Miller and Henry H. Miller for seventeen hundred and sixty-eight dollars ($1,768). Tins judgment passed into the hands of Henry H. Miller who issued execution, levying upon the interest of Charles H. Miller in a farm of one hundred and eighty-three acres. Condemnation of the land was had, and subsequently a pluries venditioni exponas was issued to 56 December Term, 1876. Thereupon Charles H. Miller and Elvira L., his wife, in right of Elvira, presented the present bill in equity, asking for an injunction to prevent the sale of the real estate so levied upon. The bill alleged that in 1871 Elvira Miller became the owner of the right, title and interest of Charles Miller in the land levied upon. Although the bill is neither very clear nor logical, her claim to title is set forth. The proceeding is evidently founded upon the authority of Hunter’s Appeal, 40 Pa. 195, and kindred cases, where it is held that a levy and sale of a wife’s real estate by a creditor of her- husband, on execution, is contrary to law and may be restrained by injunction; that wherever a clear case of title is properly made under the acts of 1848 and 1850, a court of equity will interfere; otherwise not, and the parties are left to their remedy at law. True, an additional prayer was made “that an account should be stated under the directions of the court between the said Henry H. Miller and Charles H. Miller of all matters growing out of the real estate devised to them jointly by the will of their father, Henry Miller, deceased, and a proper decree be entered for the balance which may be found due to the said Charles H. Miller after deducting the Klopp judgment.” But the account could only be incidental to and as furnishing facts in aid of the prayer for an injunction. The bill alleged as an equitable reason for not permitting execution to issue, the circumstances under which the Klopp bond or judgment had been given; that Henry Miller had given his brother Charles the assurance that he would see the amount of the Klopp indebtedness paid out of the share of Charles in his father’s estate; that Henry having been in possession of the entire estate of the father should be obliged to settle and account, and that as a result of such account, it would appear that Henry had in his hands a sum of money belonging to Charles which would more than pay the judgment upon which the execution issued. The master found otherwise; that Henry had $2,782.41 more of credits than Charles, and that each owning an equal share in the estate, found that Charles owed Henry one half, or $1,391.20. This brings us to the point in controversy as to the form of decree asked for. We are not asked to review the master’s conclusions or the actions of the judge in confirming the master’s report. The injunction was granted and afterwards dissolved. We are not at all clear as to the right of Elvira, the wife, to ask a statement of an account between Charles and Henry, nor that such account could affect her rights or the merits of her bill. Its only purpose so far as she was concerned, was to show an alleged equitable payment of the Klopp judgment, as one of the reasons for the equitable interference by injunction to restrain the process of execution and sale. The master finds no indebtedness upon her part. The finding of an indebtedness against the husband cannot fix a liability upon the wife. She does not present this bill in equity as the trustee of her husband, but it is upon its face distinctly asserted to be “in right of the said Elvira L., the wife.” We therefore decline to make the decree in form as requested.. And now to wit: Nov. 8, 1886, it is ordered, adjudged and decreed that defendant’s draft of the decree, be disapproved, that the exceptions filed by Elvira L. Miller, to the said decree be sustained and that plaintiffs pay all the costs, and that the prothonotary shall enter this decree in his equity docket as the final decree of the court in this case. Thereupon the defendant took this appeal assigning the said decree as error.
119 Pa. 632Rothermel v. Dumn (1888)
ERROR TO THE COURT OF COMMON PLEAS OF BERKS COUNTY. No. 332 January Term 1887, Sup. Ct.; court below, No. 36 February Term 1883, C. P. On January 24, 1883, an appeal by the defendant was entered in the Court of Common Pleas from the judgment of an alderman in favor of James F. Dumn against Samuel H. Rqthermel, in a proceeding by the plaintiff, as landlord, to recover from the defendant as tenant, the possession of premises demised, said proceeding being under the act of December 14, 1868, P. L. (1864) 1126. The plea was not guilty. At a former trial in the Court of Common Pleas on April 28,1884, the defendant, claiming to hold under a parol lease for the term of ten years from Mrs. Maria Stichter, a former owner, had a verdict and judgment in his favor for the sum of $106.50 as damages by reason of his removal from the premises under a writ of possession issued upon the judgment of the alderman. On a writ of error to this court, however, it was decided that upon the facts presented the defendant had but a tenancy at will from Mrs. Stichter, converted by his payment of an annual rent into a lease from year to year; the judgment was reversed and a venire de novo awarded: Dumn v. Rothermel, 17 W. N. 292, 112 Pa. 272. At the second trial on November 24, 1886, it was shown in substance: That on December 4,1880, Rothermel, the defendant, leased by parol from Mrs. Maria Stichter, the then owner, a parcel of ground and iron-ore wharf in Fleetwood, for the term of ten years, at an annual rental of $60; that on December 22,1881, Mrs. Stichter conveyed the premises to Amos H. Madeira, and on January 13,1882, Madeira conveyed the same premises to Dumn, the plaintiff, Rothermel being still in possession without any notice to quit, or any proceedings at that time to obtain possession; that after Dumn obtained title he proposed to make a new lease to Rothermel Tor one year; Rothermel declined, claiming that he had already had a valid and subsisting lease from Mrs. Stichter for ten years, and offered to pay Dumn $60, the rent for one year under that lease, which was refused by Dumn; that finally, on January 15th or 16th, 1882, in the presence of Esq. Bernhard, $60 was paid by Rothermel for which Dumn gave a receipt with terms or provisions which became the principal matter of contention on the trial. Mr. Dumn testified, in substance, that the term agreed upon was to be one year from the date of the deed from Mrs. Stichter ; that at the time when the agreement was made and the $60 paid he did not know the date of that deed, but he left a receipt with Esq. Bernhard signed by him but with a blank for the date from which the terpi was to begin, went home and got his deed, returned with it the same evening or the next morning and the date was then inserted by Esq. Bernhard in the receipt to be delivered to Rothermel. He further testified that on September 20,1882, a written notice was served by him upon Rothermel to quit the premises on December 22, 1882. The defendant testified, in substance: That at the meeting at Esq. Bernhard’s office, Dumn “wanted to receive the rent some way, and after we had been talking quite a while, we got Esq. Bernhard’s attention to the matter positively to this effect, that this, our doings there, should not interfere with my rights and it should not interfere with his rights, merely that I paid the rent and he received the rent, and leave this matter as I proposed to have and his rights just as it is.....I didn’t care about the receipt at all after we had Bernhard’s attention to the matter; ” that no agreement was made between him and Dumn; he could not say whether the receipt fixed the time when the year was to begin or not, perhaps it did; he did not know enough about the receipt to make any statement about it; he believed it was true that Bernhard kept the receipt, when it was signed, in order to insert the date on which the deed from Mrs. Stichter to Madeira was executed. The testimony of Wm. Bernhard, Esq., deceased, taken on the former trial, was read on behalf of the defendant, the wit-mess testifying as to the interview at his office when the receipt was given: “ Rothermel looked over the receipt and declined to accept it. The exact words I cannot repeat, but Rothermel claimed to have a lease with Mrs. Stichter, and he was afraid if he would accept the receipt it would interfere with the lease he claimed to have. They finally called my attention to the fact that the receipt was given and taken in this way; that it should neither create a new lease nor interfere with the lease that Rothermel claimed to have.” The court, Hagenman, P. J., charged the jury and answered the points presented as follows: The case narrows itself down to what took place when the parties met at ’Squire Bernhard’s on the 15th or 16th of January, 1882, and from the evidence as it has been submitted to the jury, you will have to ascertain what was the agreement entered into at that time between the parties. Certain points have been submitted on the part of the plaintiff which I will now answer. 1. If the jury believe that at the time Samuel H. Rothermel paid James F. Dumn his $60 rent, a receipt was given by Dumn specifying that the year was to commence on the 22d day of December, 1881, and that Dumn gave the three months’ notice to quit, as testified to by him, the verdict of the jury should be for the plaintiff; James F. Dumn. Answer: This point is affirmed.1 2. Samuel H. Rothermel not having denied thalt the receipt specified the date of the commencement of the lease as the 22d of December, 1881, and the evidence of the plaintiff upon that subject being uncontradicted, if the jury believe the testimony of James F. Dumn, and J. G. L. Brownwell, Esq., as to the time fixed in the receipt as the commencement of the term, the plaintiff is entitled to recover, and the verdict should be in favor of James F. Dumn. Answer: This point is affirmed.8 3. Under all the evidence in this ease, the plaintiff, James F. Dumn, is entitled to a verdict. Answer: The court declines to so instruct the jury. The defendant submitted points to the court. 1. If from all the evidence in the case the jury do not believe that a lease was made before ’Squire Bernhard, as the plaintiff has testified, then the verdict must be for the defendant. Answer: This point is affirmed. 2. If from all the evidence the jury believe that Dumn agreed to take the $60, which Rothermel left with ’Squire Bernhard, that the agreement should not affect the right which each party claimed to the property, and that no agreement was made by Rothermel to lease the same from Dumn, the verdict must be for the defendant. Answer: This point is affirmed. 3. If the jury should find for the defendant, it will be their duty under the act of 1863, to give such damages as under the evidence he should have sustained by reason of his removal from the premises. Answer: This point is affirmed, and I will give the jury-further instructions in the general charge. . The first inquiry for you to make is what took place at ’Squire Bernhard’s office on the 15th or 16th of January, 1882. There is no dispute that the money was paid on that day. The simple question for the jury is to ascertain what was agreed between the parties on that day. It seems to be established in the case, as a proof, that on that day there was a receipt given for $60. It is claimed on the part of the plaintiff that that receipt contained what would be the terms of the agreement; in other words, that it specified when the lease began and when it ended. If the lease stated the terms, the payment being for one year, the lease would end at the expiration of that year. That receipt was not put in evidence, but the contents have been proved by the plaintiff, and I will also refer to the testimony of the defendant to see how far that contradicts it. I now refer to the testimony of Mr. Dumn. . . If this testimony is believed by the jury, then it was stipulated and agreed at that time that this lease was to begin on the 22d day of December, 1881. By the payment of the $60, there was a lease for one year. Rothermel had no nine years more to stay on the premises. The law gives him no such right, but by the payment of these $60 he had another year’s lease of these premises. It is for the jury to ascertain when that lease began. The defendant’s first year ended on December 4,1881. He held over on December 4,1881, and the most that he can claim is that he was there for another year from the 4th of December, 1881. And that is the claim on the part of the defendant, that his lease began on the 4 th of December, 1881, for the second year. If it began on the 4th of December, then the notice to quit given him by the defendant on the 20th of December, 1882, was too short, and the proceeding that was begun before the alderman could not be sustained. If the lease expired as claimed by the plaintiff, the notice was sufficient, the proceedings are regular, and the plaintiff is entitled to recover ; for then the lease expired as stated in the receipt (as alleged by the plaintiff), on the 22d of December, 1882, three months after the giving of the notice. The defendant, into whose possession this receipt passed, does not produce the receipt in court. It is shown by evidence, with which the jury will probably be satisfied, that it passed into the hands of his then counsel, Mr. Green, some two years or so ago, and that he never received it back. That receipt is not in the possession of the present counsel for the defendant, and it is assumed that Mr. Green mislaid it or lost it. At all events it is not produced. You have the testimony of Mr. Rothermel as to what he understood was the agreement at the time. .... [From this testimony the jury is to ascertain whether, as contended for by the plaintiff, this receipt specified that the lease was to begin on the 22d of December, 1881. If you find that fact, and the other fact that notice was given on about the 21st or 22d of September, 1882, these proceedings were regular and the plaintiff is entitled to your verdict.] 3 But if the receipt did not give the date of the commencement of the lease, and if it is, as contended for by the defendant, that the rights of the parties were to be as they were under this Stichter lease, the plaintiff is not entitled to recover, for the reason that then the lease terminated on the 4th of December, 1882, and not on the 22d, and the notice was too short, and the proceedings before Alderman Brownwell were irregular. If you find that the proceedings before Alderman Brownwell were irregular, you will have to ascertain what damages, if any, were suffered by the defendant..... [Now, when you have a positive statement of a witness that the receipt contained what was the terms of the lease, and that receipt passed into the hands of the other party, and that receipt is not produced, and the other party says he does not know whether that was in the receipt or not, it is for the jury to say whether or not they should give the greater weight to the testimony which recites the contents of that receipt. And if the contents of that receipt were such and the money was paid and received, that the term was to begin on the 22d of December, 1881, the plaintiff is entitled to recover. If it was not so your verdict will be in favor of the defendant for such damages as you may find him entitled to.] 4 The verdict of the jury was in favor of the plaintiff. A motion for a new trial having been entertained, argued and refused, and judgment entered on the verdict, the defendant took this writ assigning for error: 1, 2. The affirmance of plaintiff’s points.1 8 8, 4. The parts of the charge embraced in [ ] 3 4
119 Pa. 640Appeal of Schaeffer (1888)
APPEAL EROM THE DECREE OE THE ORPHANS’ COURT OE BERKS COUNTY. No. 353 January Term 1887, Sup. Ct. On October 10,1881, Sallie E. Guldin, afterwards Sallie E. Schaeffer, administratrix of the estate of Simon P. Guldin, of Oley township, deceased, filed her third partial account showing a balance of $257.80 due tbe estate. This account was confirmed nisi by the Orphans’ Court on November 26, 1881, and on December 24, 1881, the confirmation was made absolute. Among the credits taken was an item of interest paid on a note held by Wm. L. Rhoads, and another, of interest paid on certain notes held by Adam Rhoads. On September 14, 1882, the accountant filed a fourth account, showing, after credits claimed for register’s, clerk’s and attorney’s fees, and compensation to accountant, a balance due the estate of $1,065.42. This account was confirmed nisi by the Orphans’ Court on October 21,1882. On November 25,1882, the confirmation was made absolute, and on November 27, 1882, the court, Hagenman, P. J., decreed the payment of the fees and allowance referred to and on January 20, 1883, made a further decree distributing said balance of $1,065.42 to the heirs of the decedent, directing the distributees to file refunding bonds according to law. The distributees having filed refunding bonds which were approved by the court, in accordance with § 41, act of February 24,1834, P. L. 81, they were paid by the administratrix their several portions of said balance. • The proceedings recited were under the old law. On September 7, 1885, a separate Orphans’ Court having been established, on motion of Adam Rhoads and William L. Rhoads, as creditors, said third and fourth accounts were called for audit, and the adjudication adjourned from time to time until October 10,1885. In the final adjudication on that date the Orphans’ Court, Schwartz, P. J., found as a balance due to Adam Rhoads, $562.47, and as a balance due to William Rhoads, $286.90, and, taxing the costs of adjudication, proceeded: It was contended at the hearing of this case by accountant, that the balance due the estate as shown hy the fourth account was decreed by the court to the heirs. It is true Judge Hagenman signed an ex parte decree making such a distribution. This decree, however, has no validity or binding effect upon the rights of creditors. The court have no power to make distribution of the fund without notice to the creditors, who are first entitled before distribution can be made to heirs and legatees. In this case no such notice was given and the creditors never had their day in court. They are therefore not concluded by the decree above referred to. It was further contended however that the decree of the court making distribution to the heirs was made with the knowledge and assent of the attorney representing the creditors. This allegation was not sustained by proof. It was the duty of the attorney who represented the creditors to take care of their interests. Why should he then consent to the distribution of the funds to the heirs, before the claims of the creditors, his own clients, were satisfied ? If this fact had been established by testimony it would have been a fraud upon the creditors, and it would have been the duty of the court to set aside the decree distributirig the funds to the heirs. Upon neither of the grounds relied on by the accountant should this decree be sustained. The fund is therefore distributed to the creditors as appears by the schedule of distribution hereto annexed. To Adam Rhoads...........$562.47 To Williams Rhoads.......... 286.90 The balance in accountant’s hands will not be distributed at this time. Accounts, statements, and notes of proceedings are hereto attached. It is ordered and decreed that Sallíe E. Schaeffer, administratrix as. aforesaid, do pay said fees, costs, and distribution made, to the parties respectively entitled thereto. It is further ordered and decreed that the foregoing adjudication and distribution be confirmed nisi. To this entire adjudication, as erroneous, Sallie E. Schaeffer as administratrix and heir at law, filed exceptions, which exceptions were overruled by the court on February 8,1886, and the adjudication confirmed. Thereupon the exceptant took this appeal assigning by specific assignments the adjudication and confirmation as error.
119 Pa. 645Brotzman v. Riehl (1888)
APPEAL EROM THE COURT OE COMMON PLEAS OE NORTHAMPTON COUNTY, IN EQUITY. No. 175 July Term 1887, Sup. Ct.; court below, No. 1 February Term 1881, C. P. in equity. On January 24, 1881, a bill in equity was filed by Catherine Brotzman, as plaintiff, against Rachel Riehl, the wife of Thomas Riehl and surviving executrix of the will of Joseph Brotzman, deceased, Hannah Brotzman, widow, and U. Y. Brotzman, Ephraim Brotzman, and others, heirs of John P. Brotzman, son of Joseph Brotzman, deceased, and the Glendon Iron Co., assignee of Charles Jackson, Jr., lessee. The bill averred in substance:. That the plaintiff was a daughter of Joseph Brotzman, who died testate on. September 17, 1852, by whose will provisions were made for the plaintiff as in the paragraph therefrom hereinafter quoted. That the plaintiff had remained single and unmarried, and her mother, the testator’s widow, died on August 18, 1875, since which time she had been deprived of the necessary privileges in the kitchen, cellar, yard, garden and outhouses and the provision of which she was reasonably in want, as well as of the annual payment of $100 out of the proceeds of the rent of the ore-bed, though said ore-bed had been continuously rented during the whole time since said date for a rental largely in excess of said sum. That Rachel Riehl, executrix, survived Abraham Brotzman, executor, who died July 8, 18 ; the present occupant of the homestead was Ephraim Brotzman, and the present lessee of the ore-bed was the Glendon Iron Co., assignee of Charles Jackson, Jr., and the premises containing the ore-beds were in the occupancy of Hannah Brotzman, U. V. Brotzman and others of the defendants. That the plaintiff was dependent for her support upon the provisions in said will made for her and had made frequent requests and demands to have and enjoy the same, with all of which requests and demands the defendants had refused to comply, etc.: Wherefore your oratrix prays your honor: 1. That your oratrix be accorded and reinstated in the rights, liberties and privileges provided for her and directed in said will. 2. That defendants be ordered to pay over to your oratrix said annual payments of one hundred dollars as directed in said will, with all arrearages of interest due thereon. 3. That your oratrix may have such other and further relief as the circumstances of the case may require and to your honor may seem proper. The will, a copy of which was exhibited with the bill, provided, inter alia, as follows: I give and bequeath unto my beloved wife Elizabeth, during her widowhood, in lieu of her dower or thirds out of my estate, the frame house (being the homestead), and garden attached thereto, together with all my household goods and kitchen furniture, with the necessary privilege in the barn, stable and outhouses, and two cows to be fed, stabled and pastured, and as much firewood and coal as she may reasonably want, to be delivered wherever she may direct on the premises, together with one third part of the wheat, rye, corn, potatoes and hay that shall be raised and made on the premises hereinafter devised unto my three sons, Abraham Brotzman, John Philip Brotzman and Josiah Brotzman. The grain to be divided in the bushel and to be taken and carried to the mill and to be ground or sold as she shall or may from time to time order and direct, and the flour and bran made therefrom, or so much thereof as she shall or may from time to time require, be brought and delivered to her up-stairs in the house free from any cost or charge whatever; under and subject however that my daughter Catherine Brotzman shall, as long as she shall remain single and unmarried, have the free and undisturbed use, liberty and privilege of the room up-stairs that she has now in her possession, together with the necessary privilege in the kitchen, cellar, yard, garden and outhouses, and free egress, regress and ingress to and from said room, and to be furnished by my beloved wife during said term with as much provision as she may reasonably want without any cost or charge whatever. It is further my will and I hereby order and direct that in case that the said devise should, in the opinion of my son Abraham and my daughter Rachel and the survivor, be insufficient for the comfortable support and maintenance of my said wife and daughter Catherine during said term, then I order and direct that the sum of one hundred dollars shall be paid annually during said term to my said wife and daughter and the survivor out of the proceeds of the rent for the ore-bed. To this bill the defendants, other than Rachel Riehl, executrix surviving, appeared and demurred, for cause alleging want of jurisdiction, adequate remedy at law and no relief grantable in equity. Rachel Riehl, the executrix surviving, then appeared, and on March 14,1881, for answer to the bill said: 1. That the statements of fact made in the several sections of the bill of said plaintiff are true, and that the extracts from said will are correctly made, and a true and correct copy of said will is appended to said bill.' 2. And further, that this defendant denies and disclaims having authorized any defence to the bill of said plaintiff by demurrer or otherwise, but avers that the prayer of said plaintiff is just and equitable, and that in the opinion of this defendant the devise mentioned in said will is insufficient for the comfortable support and maintenance of said plaintiff, and that the annual payments of one hundred dollars each, with arrearages of interest, are necessary therefor and should be promptly made. Wherefore defendant respectfully prays your- honorable court to make such construction of said will and decree as may carry out the intention of testator, and that she be dismissed hence with her reasonable cost in this behalf sustained. The demurrer filed by the other defendants was overruled and they were assigned to answer. Their answer, filed February 27, 1882, substantially admitted the averments of the bill, but denied the alleged deprivation of rights and privileges and the liability of defendants for the annual payments, admitting one annual payment and alleging want of equity. Issue having been joined, the cause was referred to Mr. Wm. O. Shipman, as examiner and master, who filed a report, overruling certain exceptions thereto, on January 17, 1887, in which he found, in respect of the rights and privileges in the room, garden, cellar, yard and outhouses provided for the plaintiff by the testator’s will, that it was the intention of the testator to give them to her so long as she remained single; that the devise in question was not a mere legacy charged upon the land, but an interest or estate; that the plaintiff had been deprived of these privileges, but that no specific relief in equity by way of reinstatement could be decreed, and the plaintiff’s remedy was an action for damages. He further found that the provision for the payment of $100 annually to the plaintiff continued to her after the death of her mother; that the legacy was demonstrative payable out of the rent of the ore-bed and was to follow the rent of the ore-bed generally, without restraint or confinement to the then existing lease; that, though it was contended that the legacy could not be recovered by means of a bill in equity, but resort must be had to a common law action, and that it did not appear by proper averments in the bill that it was the opinion of the testator’s daughter Rachel that the devise of the household and other privileges previously given to the plaintiff was insufficient for her support and maintenance, yet it was the opinion of the master that the omission from the bill of such averments was not fatal, but amendable: City v. Railroad Co., 15 W. N. 364; Commonwealth v. Coit, 15 W. N. 270; Commonwealth v. Reeves, 13 W. N. 45; and that if, on the one hand, the amount of the rent was payable by the lessee to the legatee, then the acceptance and receipt thereof by the devisees would make them trustees for the legatee and they would be obliged to refund to her: Story, Eq. J., §§ 1041,1196; 4 Kent’s Com., 307; McCoy v. Scott, 2 R. 222; Robb’s App., 41 Pa. 45; Landis v. Scott, 32 Pa. 495; but, if the devisees of the realty were to be custodians of the fund and were authorized to receive and pay over the determinate and fixed portion of the rent as an annuity, then they were vested with the property for the benefit of another, were trustees under the will and the bequest was a testamentary trust; that he inclined to the latter alternative, and, citing Story’s Eq. J., § 1041; Landis v. Scott, 32 Pa. 495; Anderson v. Henzey, 7 W. N. 39; Brown’s App., 12 Pa. 337; Seibert’s App., 19 Pa. 49, concluded that the court sitting in equity had jurisdiction, and, finding that the rental of the ore-bed per annum had all along exceeded $100, reported a decree that the bill be dismissed as to Rachel Riehl, executrix, and the Glendon Iron Co., and that the other defendants pay to the plaintiff the sum of $1,370, the amount of her unpaid annuity, with interest from January 1, 1876, to January 1, 1887. Exceptions to this report on the part of the plaintiff, overruled by the master and renewed on the filing of his report, were: 1. The master erred in not recommending a decree that the oratrix be accorded, and reinstated in, the rights, liberties and privileges provided for her and directed in said will, as prayed for.1 2. The master, after finding the fact- that plaintiff has been deprived of said rights, liberties and privileges by defendants, erred in his conclusions of law that she cannot be accorded them and reinstated therein, and that she cannot be compensated in damages for such time as she may have been deprived of them.3 Various-exceptions were filed by the defendants. On June 6,1887, the court Schuyler, P. J., disposed of the exceptions to said report in the following opinion and decree: The last will of Joseph Brotzman, deceased, after making certain provisions for the testator’s widow and his daughter, Catherine, proceeds as follows: “ It is further my will, and I hereby order and direct that in case the said devise should, in the opinion of my son Abraham and my daughter Rachel and the survivor, be insufficient for the comfortable support and-' maintenance of my said wife and daughter Catherine, then I order and direct that the sum of one hundred dollars shall be paid annually to my said wife and daughter and the survivor out of the proceeds of the rent for the ore-bed.” In a subsequent part of his will the testator devises to his three sons, John, Abraham and Josiah, three contiguous tracts of land which they held in common, down to the death of the widow, thé latter event occurring in 1875. Upon the death of the widow partition was made of these three tracts, and the tract containing the ore-bed above mentioned fell to the lot of John. John subsequently died leaving a widow and three children, who succeeded to his title to the ore-bed, and are the real defendants in the present bill. The purpose of the bill is to obtain a decree that the defendants pay to the plaintiff, who is the “ daughter Catherine ” mentioned in the will, $1,100, with interest, the $1,100 representing eleven years of alleged arrearages from 1876 to 1886 inclusive, in the payment of the $100, which the testator directs to be “ paid annually ” out of the proceeds of the rent of the ore-bed. The learned master has recommended such a decree, and in so doing, we think, has committed error. It will be noticed that the direction as to the payment of the $100 is not absolute, nor is the payment made to depend upon whether, in point of fact, the previous provision for the testator’s widow and daughter was or was not sufficient, but the payment is made contingent upon the previous provision proving to be insufficient “ in the opinion ” of testator’s son Abraham and his daughter Rachel. It is not for us to question the wisdom of such a bequest as this, nor does it lie in the mouth of the plaintiff to complain of its terms. True, both Abraham and Rachel might die,' as Abraham did die, without forming any opinion on the subject; or they might, if living, arbitrarily refuse to form an opinion, and in either case the bequest would fall. But the testator’s bounty was his own and he could annex his own conditions to it. He might have withheld it altogether and plaintiff would have had no just ground of complaint, and she has just as little ground to complain that the bequest was given on a condition that might never happen. There is no dispute as to the testator’s meaning. That is as plain as words can make it. The bequest is to vest only in case the previous devise should, in the opinion of testator’s son Abraham and testator’s daughter Rachel, be insufficient. Such being the condition on which the bequest is given, it is somewhat remarkable that the present bill, whose sole purpose is to enforce payment of the bequest, contains no averment that the condition has happened. The learned master passes over this serious omission very lightly, simply saying that it is amendable, and in so doing has adopted an opinion quite prevalent in the profession, that in equity amendments of the pleadings are of right at any stage in the proceedings. This is a mistake. The rule as to bills is, that “ after witnesses have been examined the court will not, unless under very special circumstances, or in consequence of some subsequent event, allow the bill to be altered or amendedStory’s Eq. PL, § 887. We do not understand that this rule has been changed by the act of May 4,1864, § 2, P. L. 775. The rule is a proper one and should be enforced. An opposite rule would but foster carelessness and tend to confusion and delay, without any corresponding good. We cheerfully concede that it is human to err. We also concede that even under our greatly simplified system of equity pleadings, mistakes may occur, even with the most careful pleaders, but when they do occur application to amend should be made at the earliest opportunity. But, even if bills were amendable as a matter of course at any stage in the proceedings, it would not help the plaintiff, for in the case in hand there is nothing to amend by. There is no evidence to indicate that either Rachel or Abraham ever in fact formed an opinion as to the insufficiency of the devise. The only evidence on the subject is to be found in the testimony of Rachel herself, delivered four years after bill brought, and all that she says is, that she “knew that Catherine needs the $100 named in the will.” Upon this testimony alone, although Rachel does not say when she acquired her knowledge, and although there is no pretence that it was ever communicated to defendants, the learned master recommends the decree referred to above. Very little reflection will show that the decree recommended by the master is a hard decree; so hard that we should hesitate to adopt it for that reason alone. Piad a demand in legal form been made on the defendants in 1876, it is fair to presume that they could have easily paid the $100, as the will directs, that is “annually;” whilst, if we adopt the decree recommended by the master, it might result in sweeping away their entire inheritance, and this through no fault of theirs. In the face of such a result, it is idle to talk about the plaintiff’s legal rights, if she has any, as we think she has not. But concede, for the sake of the argument, that the plaintiff was under no legal duty to make a prior demand. It is enough, for our present purpose that she was under a moral duty so to do, and not having done so we think she has no standing in court. Plaintiff must remember that" she is in a court of equity seeking equitable relief, and that whoever comes into a court of equity must come with clean hands. “ It is not alone fraud or illegality which will prevent a suitor from entering a court of equity; any really unconscientious conduct, connected with thfe controversy to which he is a party, will repel him from the forum whose very foundation is good conscience : ” 1 Pomeroy’s Eq. Jur. § 404. She must also remember, that although equity follows the law, “ a court of equity will in no case allow itself to be made the instrument of injustice : ” Kerr on Injunctions, 6. In its purely legal aspect the present case presents two questions of considerable difficulty. The first has already been hinted at, whether even at law a prior demand is not necessary. The second is, whether from a fair interpretation of the whole will, it was not the intention of the testator that the $100 bequest should cease at the death of the widow. In the view taken above, it becomes unnecessary to decide these questions. I will say, however, that as to both of them the inclination of my mind is in favor of the theory of the defendants. I also agree with the learned counsel for the defendants that the $100 bequest is made a charge on lands, but I cannot agree with him that this court, sitting as a court of equity, has no jurisdiction to enforce payment of such legacies. The original jurisdiction of courts of equity over legacies charged on land is undoubted. Indeed, until the rule was changed by legislation, the jurisdiction was exclusive: Story’s Eq. Jur., § 602. By our own act, February 24, 1834, § 59, P. L. 84, similar jurisdiction is conferred on the Orphans’ Courts, and a mode is provided for enforcing the payment of such legacies. By operation of act March 21, 1806, § 13, 4 Sm. L. 332, this mode must be pursued to the exclusion of all common law remedies. The latter act, however, has no application to equitable remedies, and an examination of the cases relied on to prove that the jurisdiction of the Orphans’ Court to enforce legacies charged upon land is exclusive, will show that they are all cases where an attempt has heen made to enforce payment of such legacies by a common law action. Every lawyer knows how tenacious courts of equity are of a jurisdiction that has once attached. Nothing short of a positive act of assembly can take away such jurisdiction, and there is no such act in reference to legacies charged upon land. 1887, June 6, bill dismissed at the costs of the plaintiff. Upon the filing of the foregoing opinion and decree, the plaintiff took this, writ specifying that the court erred; I, 2. In not considering and sustaining the plaintiff’s exceptions.1 8 II. In the final decree dismissing the bill.