Volume 243 — Pennsylvania State Reports

<p>Negligence — Contributory negligence — "Stop, loolc and listen”— Questions for jury — Charge—Evidence—Negative testimony.</p> <p>1. In an action against a railroad company to recover damages for personal injuries, sustained by the plaintiff by being struck by a passenger train while he was crossing the defendant’s railroad in a buggy, the question whether he stopped at the proper place between the tracks of the defendant company and those of another railroad company which he had to cross before reaching the tracks of another company or whether he stopped before reaching the tracks of the other company and therefore at an improper place was for the jury.</p> <p>2. Where in such a case, the plaintiff and another witness testify that they had reason for listening for signals by the approaching train and that there was no headlight on the engine and that no warning was given, and the plaintiff’s reason given was that he intended to cross the track and had stopped, looked and listened for a train, and the witness testified that he was driving a skittish colt and knowing the crossing to be dangerous, desired to know whether a train was approaching or not before he attempted to pass the crossing, such testimony, together with negative testimony that no signals were heard and no headlight seen, is sufficient to go to the jury on the question of whether the engine had a headlight and gave a signal of its approach to the crossing.</p>

<p>Appeal, No. 200, Oct. T., 1913, by defendant, from judgment of C. P. Lawrence Co., Sept. T., 1909, No. 42, on verdict for plaintiffs in case of William J. Irwin, Viola B. Comstock, John P. Irwin, Edna R. Morrison, and Jessie Irwin, Minnie R. Irwin by William J. Irwin, next friend, v. Pittsburgh and Lake Erie Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Porter, P. J.</p> <p>The facts appear by the opinion of the Supreme Court, and in Masso v. P. & L. E. R. R. Co., 243 Pa. 1.</p> <p>Verdict for plaintiffs for $3,200 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were (3) portion of charge; (7, 8) the refusal of the court to direct a verdict for defendant, and (1) to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 234, Oct. T., 1913, by plaintiffs, from order of O. P. Lawrence County, June T., 1908, No. 5, refusing to take off nonsuit, in case of Silas Lodge and Lucy Lodge, his wife, parents of Silas Dale Lodge, deceased, v. The Pittsburgh & Lake Erie Railroad Company.</p> <p>Trespass to recover damages for death. Before Porter, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entered a judgment of compulsory nonsuit which it subsequently refused to take off. Plaintiffs appealed.</p> <p>Error assigned was in refusing to take off compulsory nonsuit.</p>

<p>Negligence — Street railways — Passengers—Intoxicated passenger —Degree of care.</p> <p>1. If a passenger is known to be in any way affected by disability, physical or mental, whereby the hazards of travel are increased, a degree of attention should be bestowed upon his safety beyond that of an ordinary passenger, in proportion to liability to injury from want of it. It is the duty of carriers’ servants, When aware of the intoxication of a passenger, to give him that degree of attention which consideration for his safety demands beyond that ordinarily bestowed on passengers.</p> <p>2. In an action against a street railway company to recover for the death of the plaintiff’s husband, the case is for the jury 'where it appears that decedent became a passenger on one of the defendant’s cars to go to his home several miles distant in the country; that he paid his fare, took a seat in the front of the car and at that time showed little if any indication of intoxication; that later when asked for the second fare he was in a drunken 'stupor and when aroused refused to pay; that several"minutes later a second demand for fare was made and he refused or was unable to name his destination; that the conductor then ordered him to leave the car and in obedience to this order or because of force used by the motorman he arose from his seat and walked to the back platform and stepped down to the roadway; that while on the platform or immediately after stepping from it he was asked by thé motorman to pay his fare and re-enter the car; that he refused to pay the conductor but handed a dollar to the motorman, who gave it to the. conductor who offered the decedent the change due him, which he refused to take; that he was then very much intoxicated, unable to talk coherently or to walk without staggering and was stupid and sullen; that he was left standing on a road of a clear width of only thirteen feet and on one side of which was the 'defendant’s track; that'across the track from this place there was a way station with a small platform and storm shed but with no one in attendance; that he lingered around the station for over an hour and then attempted to walk along the road in the direction of his home; and that when several hundred feet from the station he staggered diagonally across the road and fell in front of an approaching car.</p>

<p>Criminal law — Homicide—Self defense — Evidence — Cross-examination — Reputation—Charge to jury — Inadequate charge.</p> <p>1. On the triallof aniindictment for murder where the defendant admitted the killing but contended that the act was done in self defense, and it appeared that defendant had been the host at a party at which deceased was present; that deceased had acted in an outrageous and violent manner, using vile language and assaulting other members of the party; that when deceased had gone outside the house, several shots were heard; that after being induced by defendant to leave the house he had come back and approached defendant, who was seated by the fire, threatening to kill him, whereupon defendant raised his shotgun and shot deceased dead, the court erred in limiting the cross-examination of the witnesses for the Commonwealth to what took place at the particular instant when the' shots were fired. It was the right of the. defendant to have all the facts connected with the shooting, fully and fairly disclosed by the prosecution, as well as by any witness which he might call in his behalf.</p> <p>2. Where in such case defendant offered evidence of good character the court erred in permitting the defendant to be cross-examined as to whether or not he had made statements years before to the; effect that he had shot a woman; and in allowing the Commonwealth to offer evidence in rebuttal of defendant’s denial that he had made such a statement, without any offer to prove that he had actually done such a thing. The evidence was not competent as affecting his reputation for good character at the time of the commission of the homicide or for years preceding it.</p> <p>3. The charge to the jury in such case was inadequate where the jury were merely told that defendant in his own house had rights that would not attach to one outside with means of fleeing or, escaping but were given no adequate explanation of the rights of one who, without fault of his own; is assaulted in his own dwelling House by one who has no right to be there at the time, and a judgment upon a verdict of guilty of murder of the first degree was reversed.</p>

<p>Appeal, No. 233, Oct. T., 1913, by defendant, from judgment of C. P. Cambria Co., September T., 19.11, No. 170, in case of Duroth Manufacturing Company v. Joseph Cauffiel.</p> <p>Replevin for the recovery of stocks and bonds. Before Stephens, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for the property in suit and for $2,600 damages for detention, and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were various rulings on evidence, various instructions to the jury and answers to points.</p> <p>The plaintiff being an unregistered foreign corporation is not entitled to maintain an action of replevin in the courts of this Commonwealth: Del. River Quarry & Construction Co. v. R. R. Co., 204 Pa. 22; Chicago Bldg. & Mfg. Co. v. Myton, 24 Pa. Superior Ct. 16; Kilgore v. Smith, 122 Pa. 48; Wolff Dryer Co. v. Bigler, 192 Pa. 466; West Jersey Ice Machine Co. v. Armour, 12 Pa. Superior Ct. 443; Milsom Rendering, Etc., Co. v. Kelly, 10 Pa. Superior Ct. 565; Mearshon v. Lumber Co., 187 Pa. 12; Pavilion Co. v. Hamilton, 15 Pa. Superior Ct. 389; Bennett v. Bldg. & Loan Assn., 177 Pa. 233; People’s Bldg., Loan & Savings Assn. v. Berlin, 201 Pa. 1; Phoenix Silk Mfg. Co. v. Reilly, 187 Pa. 526.</p> <p>The measure of damages in replevin is the value of the goods at the time the writ issued and the evidence of the value at a time long subsequent, although accom-i> panied by an offer to show the intermediate deterioration is inadmissable; Brindle v. Adams, 3 W. N. C. 5; Phillips v. Stroup, 1 Mona. 517; Herdic v. Young, 55 Pa. 176; Morrison v. Robinson, 31 Pa. 456. There was no evidence in the case to justify a verdict for exemplary damages: North v. Phillips, 89 Pa. 250; Huntingdon & Broad Top R. R. & Coal Co. v. English, 86 Pa. 247; Neiler v. Kelley, 69 Pa. 403.</p> <p>It is not necessary that a foreign corporation register to maintain an action in replevin: Wolff Dryer Co. v. Bigler, 192 Pa. 466; Berry Hill Mineral Spring Co. v. Pile, 35 Pa. C. C. R. 354; National Cash Register Co. v. Shurber, 41 Pa. Superior Ct. 187; United States Circle Swing Co. v. Reynolds, 224 Pa. 577; King Optical Co. v. Royal Insurance Co., 24 Pa. Superior Ct. 527. The general rule that in replevin the measure of damages is the value of the goods at the time the writ was issued, admits of many exceptions: Brindle v. Adams, 3 W. N. C. 5; Phillips v. Stroup, 1 Mona. 517. The measure of damages where the property is retained by the defendant is ordinarily the value of the property and damages for the detention, which is usually the interest on the value from the time of taking; but when the taking or detention or both are attended with circumstances of aggravation, the party is entitled to his full measure of redress in the action of replevin: Cox v. Burdette, 23 Pa. Superior Ct. 346.</p>

<p>Appeal, No. 24, Oct. T., 1913, by Lizzie Pershing Anderson, Executrix of William O. Anderson, deceased, from decree of O. O. Westmoreland Co., Aug. T., 1911, No. 87, dismissing exceptions to adjudication in Estate of William Anderson, late of Latrobe Borough, deceased.</p> <p>Exceptions to adjudication. Before Copeland, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions.</p> <p>Errors assigned, among others, were in dismissing the exceptions.</p> <p>Where a will and codicil are to be construed, they must be regarded as parts of one and the same instrument : Sigel’s Est., 213 Pa. 14.</p> <p>When a gift to survivors upon the death of the testator is made the words will be referred to that period, otherwise to some later time: Johnson v. Morton, 10 Pa. 245; Black v. Woods, 213 Pa. 583; Passmore’s App., 23 Pa. 381; Cripps v. Wolcott, 4 Mad. 11; Morrison v. Truby, 145 Pa. 540.</p> <p>' A gift of an absolute estate will not be held, to be cut down to a trust, a life estate or other estate less than was first given, by language used in a later part of the will or in a subsequent codicil, unless the terms in which such subsequent disposition is expressed clearly and unequivocally show that the testator intended to so reduce the estate: Lewis’ App., 108 Pa. 133; Sheetz’s App., 82 Pa. 213; Sigel’s Est (No. 1), 213 Pa. 14; Burt v. Herron, 66 Pa. 400; Gillmer v. Daix, 141 Pa. 505; Good v. Fichthorn, 144 Pa. 287; Bellas’ Est., 176 Pa. 122; Smith’s Est., 144 Pa. 428; Worth’s Est., 39 Pa. Superior Ct. 565; Woods’s Est., 209 Pa. 16.</p> <p>The intention of the testator gathered from the whole instrument must prevail: Johnson v. Morton, 10 Pa. 245; Reck’s App., 78 Pa. 432; Fox’s App., 99 Pa. 382; Woelpper’s App., 126 Pa. 562.</p> <p>The words of survivorship refer not to the date of testator’s death but to that of the life tenant: Lewis’s Est., 203 Pa. 211; Mulliken v. Earnshaw, 209 Pa. 226; Wood v. Sphoen, 216 Pa. 425; Fox’s Est., 22 Pa. 108.</p> <p>The fund known as “George’s share” is part of the residue: Gray’s Est., 147 Pa. 67.</p>

<p>Appeal, No. 99, Oct. T., 1913, by defendant, from judgment of C. P. Allegheny Co., May Term, 1911, No. 225, on verdict for plaintiff in the case of Rosie Stephanik v. Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover damages for the death of plaintiff’s minor child. Before Brown, J.</p> <p>Verdict and judgment for plaintiff for $3,000.00. Defendant appealed.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in refusing binding instructions for the defendant and in refusing to enter judgment n. o. v.</p>

<p>Negligence — Street railways — Pedestrians crossing track — Contributory negligence — Charge—Damages.</p> <p>1. If the court assume .the existence of certain facts to be shown by the evidence, it should instruct the jury clearly and. distinctly as to the law applicable to those facts.</p> <p>2. In an action against a street railway company to recover damages-for personal injuries sustained by the plaintiff through being hit by a car while crossing defendant company’s tracks at the-intersection of two city streets, where the testimony of the plaintiff himself is sufficient to carry the case to the jury, and the defendant produces witnesses from whose testimony the jury is warranted in finding that the defendant company was without negligence, and .that the plaintiff, who admittedly had a view of fifty'feet in the direction from which the car came, started to cross the track when the car was within about six or seven feet of him, the court commits error in charging that, if the jury should believe the testimony of the defense, the question as to whether or not plaintiff was guilty of contributory negligence would then be for them to decide, as such conduct on the part of the plaintiff would have been negligence and the court should have so instructed the jury.</p> <p>3. In such a case, the court committed error in instructing, “If the bell did ring and the lights were lit and the headlight shining, did this man, within six feet of the approach of a car, in that dangerous weather, did he cross then and there under that condition? If he did he ought not to recover, and the verdict ought to •be' for the defendant,” as this left it to the discretion of the jury to determine, if they found such facts to exist, whether the plaintiff was. guilty of negligence or not. The court should have instructed the jury that, if they found from the evidence the facts 'to be as stated, the plaintiff was guilty of negligence and there icould be no recovery.</p> <p>' 4. It is the duty of the court in cases of this character to see by the charge that the jury keeps within its province- in finding the facts from the evidence and not permit it to find facts which are not established by any evidence in the case.</p> <p>5. It is the duty of the plaintiff in negligence cases to establish by proper testimony the damages which he claims to have sustained, and if he fails to do so, the question cannot be-submitted’to the jury;</p>

<p>Appeal, No. 48, Oct. T., 1913, by plaintiff, from decree of O. P. Westmoreland Co., 1912, No. 824, in equity, dismissing bill in equity for fin: injunction in case of The Borough of Monessen v. Monessen Water Company.</p> <p>Bill in equity for an injunction. Before Copeland, P. J., specially presiding'. ' -...........</p> <p>The facts appear by the opinion of tha Supreme Court. ; The court on final hearing dissolved a preliminary injunction and’ dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was the decree of the court.</p> <p>The Pittsburgh Steel Company is not a party to the record and the 'court cannot make a-decree with respect to theAánd occüpféd by the pumping station in which; it had an equitable interest at the time of the filing' of the bill : Alexander’s App., 20 W. N. C. 283; Philadelphia v. River Front Railroad Company, 133 Pa. 134; Maguire v. Heraty, 163 Pa. 381; Gilkeson v. Thompson, 210 Pa. 355.</p> <p>The right of the borough to purchase at the expiration of twenty years, does not give it the right to control the property of the water company during that period: Johnson Company v. Miller, 174 Pa. 605; Second National Bank v. Gibbs & Sterrett Manufacturing Company, 13 W. N. C. 174.</p>

<p>Negligence — Mines and mining — Master and servant — Driver—■ Assumption of rish — Contributory negligence — Act of May 15, 1893, Article XX, Section 1, Bule 3; Article XXII, Section 1, P. L. 52 — Case for jury.</p> <p>1. Where the failure of a mine operator to comply with the Act of May 15, 1893, Article XX, Section 1, P. L. 52, Rule 3, which provides that all entries at “such places where road grades, necessitate sprags or brakes to be applied or removed shall have a clear level width of two and one-half feet between the side of car and the rib, to allow the driver to pass his trip safely and to keep clear of the cars,” results in injuries to an employee, such operator is guilty of actionable negligence, and the doctrine of assumption of risk is not applicable.</p> <p>2. A mine is not excepted from the provision of such act by Article XXII, Section 1 thereof, providing “provisions of this a.ct shall not apply to any mine employing less than ten persons in any one period of twenty-four hours,” where it appears from the evidence that when the entry was constructed twelve or thirteen men in each twenty-four hours were working in the mine, although there was no evidence as to how many men were employed when the accident occurred. After a mine has once been brought within the act, it is presumed to remain there until something appears to the contrary.</p> <p>3. In an action to recover damages for the death of plaintiff’s husband, a driver in a coal mine operated by defendant without a certified mine foreman, the case is for the jury and a verdict and judgment for the plaintiff will be sustained where it appears that the plaintiff at the time of the accident was working in an entry which had been cut under the personal supervision of the defendant; that the track had been laid therein by defendant’s servants, and that no room was provided on the right hand side of the track going out, and only a space of about three feet on the left hand side, which narrowed to six or eight inches between the cars and the wall of the entry; that at such a narrow part a post protruded from the wall near the point where it was necessary to sprag the wheels on one side of a loaded car in taking out a trip, the spragging being done on the left hand side; that such entry was dark, the only light furnished being that from the miner’s lamps; that while spragging seven moving cars plaintiff’s husband was caught between the wall and the cars, sustaining injuries resulting in his death; and that deceased declared to persons who found him lying on the ground, in intense pain, that while running' alongside of his trip he had stumbled and had caught hold of the post in an effort to save himself, but that the trip carried him through and that he was caught between the rib and the cars.</p> <p>. Evidence — Declarations—Bes gestee.</p> <p>4. Evidence- of the declarations of an employee killed in a miné accident, describing the manner in which the accident occurred, are admissible as part of the res gestee where such- declarations were made- within half an hour after the accident and to the first persons who appeared upon the scene, while the declarant, who had been suffering intense pain from the time he was injured,.was lying upon the spot where he was hurt.</p> <p>Appeals — Review of conflicting testimony — Verdict-for plaintiff.</p> <p>.5. Where a verdict has been rendered in favor of a plaintiff the evidence oh appeal must be looked upon in the light most favorable to the plaintiff, and wherever there is a conflict in the testimony the point involved must be determined in his favor.</p>

<p>Foreign attachment — Residence—Domicil—Ambassador to foreign country — Act of June IS, 1886, P. L. 568 — Act of March SO, 1905, P. L. 76.</p> <p>1. The words “residence” and “domicil” are not convertible terms and the latter is of more extensive signification. Domicil is the place where a man has his true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning. It is acquired by residence with the intention of remaining in the locality. A person may have his domicil in one state and be engaged in business in another and thereby acquire a temporary residence in the latter. A man can have but one domicil for one and the same purpose at any one time, though he may have numerous places of residence.</p> <p>2. The word “residence” is a word whose statutory meaning depends upon the context and the purpose of the statute, which may as used in one statute be fulfilled by mere business residence, and in another require domicil in the strictest and most technical sense. In ascertaining the meaning of the word “residence” in a particular statute the legislative purpose as well as the context must be kept in view.</p> <p>3. Foreign attachment is the equivalent of a summons for commencement of a personal action. It is a process by which to commence a personal action and to compel an appearance. The foundation for the writ is that the defendant is beyond the reach of process and his property within it. The pmq>ose of the statute is to compel the constructive presence in court of the defendant who by reason of his absence from its jurisdiction without a dwelling place therein cannot be served with the summons.. In construing the statute authorizing the issuance of the writ, its object should be kept in view so as to accomplish its intended purpose.</p> <p>4. The words “not residing within the Commonwealth” as used in the Act of June 13, 1836, P. L. 568, as amended by the Act of March 30, 1905, P. 1. 76, providing for the issuance of writs of foreign attachment are not the equivalent of and do not mean “not domiciled within the Commonwealth.”</p> <p>5. Jurisdiction conferred by the foreign attachment statute does not compel the debtor to. acquire a domicil or residence in another state. Nonresidence in this State, and not residence in another state, is the test of the jurisdiction of the court to issue the writ. Actual and not constructive or legal residence or domicil defeats the writ. A casual or temporary sojourn or transient journey beyond the State will not confer jurisdiction, but if the debtor’s absence is so protracted that he cannot be reached by the ordinary process of the court he is “not residing within the Commonwealth” within the meaning of the statute and the creditor is entitled to the writ.</p> <p>6. The rule that foreign attachment lies against a nonresident whose domicil is within the State applies to an ambassador residing at a foreign court.</p>

<p>Appeal, No. 210, Oct. T., 1913, by W. L. Kann, from decree of C. P. Allegheny Co., Oct. T., 1912, No. 1457, Docket “A,” on bill in equity in case of A. Guckenheimer & Brothers Company, a corporation, and Isaac Guckenheimer, Trustee, v. W. L. Kann and Penn-American Plate Glass Company, a corporation.</p> <p>Bill in equity to compel contribution. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing found for the plaintiff and granted the relief prayed for in the bill. Exceptions to the finding of fact and law of the trial judge were dismissed by the court, and a decree was entered for the plaintiff, carrying three-quarters of the costs. Defendant Kann appealed.</p> <p>Errors assigned were various rulings and findings of fact and law of the trial judge and the decree of the court.</p>

<p>Appeal, No. 229, Oct. T., 1913, by plaintiff, from decree of C. P. Westmoreland Co., No. 800, in Equity, dismissing bill in case of Rosa Bell v. The Pittsburgh Steel Co.</p> <p>Bill in equity to restrain the obstruction of certain streets and alleys. Before Copeland, P. J.</p> <p>Prom the record it appeared that on February 16, 1898, a plan of lots, showing certain streets and alleys located thereon, was duly acknowledged and was recorded in the County of Westmoreland on February 24, 1898, by a land company owning the property plotted.On September 3, 1898, the Borough of Monessen-was' duly incorporated. The ground covered by the plan aforesaid was included within the limits of the borough. The plan of the borough attached to the decree of incorporation and duly recorded showed the same streets and alleys that were located upon the plan of lots aforesaid.</p> <p>On October 31, 1901, the land company conveyed one of its said lots shown on said plan to William Wolf, who on February 3, 1902, conveyed the same to plaintiff.</p> <p>Upon petition of the owners of all the property abutting on the lines of certain streets and alleys shown upon the original plan of lots aforesaid, and upon the plan attached to the decree incorporating the borough as aforesaid, said streets and alleys were duly vacated by the Borough of Monessen, and the same were subsequently occupied by the defendant, the Pittsburgh Steel Company, and used in connection with its steel plant. Plaintiff’s lot did not abut upon any of the streets or alleys vacated. She filed her bill in equity to restrain the obstruction of the streets and alleys aforesaid. No evidence was offered at the trial to show that she had sustained any damage by reason of such changes, or that her means of ingress or egress to and from her property were affected in any way. The court dismissed the bill. Plaintiff appealed.</p> <p>■Errors assigned were in dismissing plaintiff’s exceptions to various findings of fact and law, and the decree.</p> <p>The act of incorporation could amount to no more than an informal acceptance of the streets and alleys as laid out in. the recorded plan, nor could the act of the. borough in granting a public service corporation the right to use the streets amount to anything more: Philadelphia v. Thomas, 152 Pa. 494.</p> <p>The court below, in assuming that the only way by which the rights of third parties might intervene, where the owner has laid out his property in streets and alleys, would be by the sale of a lot, lost sight of the fact that there are other ways by which the rights of third parties may intervene, to wit, by the sale of a lot, by the use of the streets by the public, or by their acceptance by the municipality: Pittsburgh v. Epping-Carpenter Company, 194 Pa. 328; O’Donnell v. Pittsburgh, 234 Pa. 401.</p> <p>• The' right of the plaintiff to enjoy the streets as laid out by the original grantor became fixed by the acceptance of such streets by the borough, and when the latter subsequently vacated the streets it left them subject to the private contract rights of the land company.</p> <p>The rights of the public first vested in these streets when they became public highways by municipal action, and those who purchased lots later bought them with streets and alleys with the status of public highways already conferred, not by the owner of the land, but by the action of the borough authorities: Fitzell v. Philadelphia, 211 Pa. 1; Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318; Philadelphia v. Thomas Heirs, 152 Pa. 494; Tesson v. Porter Company, 238 Pa. 504.</p>

<p>Appeal, No. 230, Oct. T., 1913, by plaintiffs, from decree of C. P. Westmoreland Co., No. 804, in Equity, dismissing bill in case of Marriano Sorrino and Bessie Arrigo v. The Pittsburgh Steel Co.</p> <p>Bill in equity to restrain obstruction of certain streets and alleys. Before Copeland, P. J.</p>

<p>Statutes — Construction—Reasonable and absurd results — Literal or natural meaning — Legislative intent.</p> <p>1. It is a settled rule of construction that the legislature "will be presumed to have intended what is reasonable and effectual and not what is productive of absurd or anomalous consequences, or what is impossible or incapable of execution. If in giving to the words of an act their literal or natural meaning the conclusion reached would be unreasonable or absurd, some other meaning within the reasonable scope of the words may be adopted to avoid that result, if it appears that such other meaning may probably have been the one intended.</p> <p>Real property — Rule to bring ejectment — Answer to rule — Final judgment — Acts of March 8, 1889, P. L. 10, and April 16, 1908, p. l. m.</p> <p>2. The Act of March 8, 1889, P. L. 10, as amended by the Act of April 16, 1903, P. L. 212, providing that “whenever any person, not being in possession thereof, shall claim or have an apparent interest in or title to real estate, it shall be lawful for any person in possession thereof, claiming title to the same, ‘to take a rule on such person’ to bring his or her action of ejectment within six months from the service of such rule or show cause why the same cannot be brought, ‘and that in default of appearance’ it shall be the duty of the court to enter judgment against the person served and make the rule absolute, which judgment shall be final and conclusive between the parties, their heirs and assigns,” was not intended to provide that where a respondent to the rule has appeared and filed an answer denying the jurisdiction of the court, which answer is subsequently adjudged insufficient and the rule is made absolute, that final judgment should be entered forthwith against the respondent in case the action of ejectment has not been brought within six months from the service of the rule.</p> <p>3. Where in Such a proceeding there is an appearance entered and an answer filed on the return of the rule, the court is required to hear and determine the sufficiency of the answer and if the answer is adjudged insufficient and the court orders the rule made absolute, the respondent has six months from the date of the order making the rule absolute within which to bring his action of ejectment before judgment can be entered against him.</p>

<p>Contracts — Municipalities— Water companies — Appeals — Assignments of error.</p> <p>1. An assignment of error to a decree of a court of equity will be dismissed where the decree necessarily follows from the legal conclusions of the' chancellor which have not been assigned as error.</p> <p>2. An assignment of error to the admission of evidence supporting a finding of fact will be dismissed where the finding of fact is not assigned as error.</p> <p>3. A municipality made a contract with a water company by which the latter, for a specified annual sum, was to furnish water to the city for sprinkling and washing its streets. The city, not owning a sprinkling car, made arrangements with a street railway company by which the latter was designated and appointed as its agent to receive' water from the water company, and use it in sprinkling the streets during the summer season. The water company filed a bill in equity against the Street railway company to restrain it from taking water and for an accounting. The court dismissed the bill. Held, no error.</p>

<p>Contracts — Stakeholders—Ownership of fund — Case for fury.</p> <p>In an action to recover a sum of money alleged to have been received by defendant to the use of plaintiff, it appeared that defendant had been plaintiff’s surety on a bond, and that plaintiff had mortgaged certain lands to defendant to indemnify it against loss. In order to facilitate the sale of certain bonds secured by a mortgage on the same land, plaintiff desired defendant to release said land from the first mortgage held by it, which defendant did upon payment to it of the sum of money in controversy. There was evidence that the money had been realized from the sale of bonds belonging to plaintiff. The defendant claimed the fund by assignment from a third person, who claimed to be the owner thereof. The court admitted evidence to show that the fund was the property of the plaintiff, and submitted the question of the ownership thereof to the jury who found a verdict for plaintiff, upon which judgment was subsequently entered. Held, no error.</p>

<p>Appeal, No. 225, Oct. T., 1913, by defendant, from judgment of C. P. Butler Co., Sept. T., 1912, No. 63, on verdict for plaintiff in case of William Killmeyer v. The Forged Steel Wheel Company, a corporation.</p> <p>Trespass to recover damages for personal injuries. Before Prather, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,180, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were answers to points, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

Appeal, No. 206, Oct. T., 1913, by George S. Hunter, from decree of O. C. Beaver Co., March T., 1913, No. 7, dismissing exceptions to report of auditor in Estate of Jennie H. Bradshaw, deceased. Exceptions to report of J. B. McGown, Esq., Auditor. Before Holt, P. J. The facts appear by the opinion of the Supreme Court. The court dismissed the exceptions. Error assigned, among others, was in dismissing thé exceptions.

<p>Appeal, No. 92, Oct. T., 1913, by plaintiff, from judgment of C. P. Washington Co., Nov. T., 1912, No. 96, for defendants in case of Joseph Edgar Carlisle v. Ella J. Carlisle, and J. M. Dickson.</p> <p>Amicable ejectment to determine title to lands in Washington County. Before McIlvaine, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for defendants on a statement of facts agreed upon by tie parties. Plaintiff appealed.</p> <p>Error assigned, airiong others; Was tie judgment of the court.</p>

<p>Criminal law — Murder—Rape—Statutory rape — Act of March 81,1860, Secs. 74, 91, P. L. 882 — Act of May 19, 1887, P. L. 128.. ■</p> <p>. 1. It is only by the common law that murder is defined; the statute law attempts no definition of this crime but only prescribes a punishment for its commission and the definition of murder under the several statutes is to be taken in the common law sense..</p> <p>2. The Act of March 31, 1860, Sec. 91, P. L. 382, defining rape and providing the penalty for its commission involved no depar-, ture from the common law meaning of rape, which always and everywhere made want of consent on the part of the female the criterion and not only the criterion, but the essential element without which there could be no such crime. No conviction for felonious rape upon a child over the age of ten years could be had under the act, except as the evidence showed want of consent.</p> <p>3. The Act of May 19, 1887, P. L. 128, denouncing sexual intercourse with a female above the age of ten years and under sixteen years with or without her consent as felonious rape, makes that a felonious rape which before was not rape.</p> <p>4. The Act of March 31, 1860, Sec. 74, defining a homicide when committed in the perpetration of or attempt to perpetrate a rape as murder of the first degree did not create a new offense but merely prescribed the penalty for an' offense already existing.</p> <p>Statutes — Penal statutes — Statutory rape — Act of May 19, 1887, P. L. 128 — Construction—Constructive crime — Murder.</p> <p>5. When a criminal statute calls for construction, it is not the construction that is supported by the greater reason that is to prevail, but that one which, if reasonable, operates in favor of life and liberty. All doubts concerning the interpretation, of a penal statute are to be resolved in favor of the accused.</p> <p>6. When an offense is created by statute and the same statute provides a penalty or mode of punishment, only that which the statute provides can be followed. While remedial laws may extend to new things not in esse at the time of the making of the statute, penal laws will not, nor will they extend to an offense, created and defined by subsequent statutes.</p> <p>7. The legislature in creating by the Act of May 19, 1887, the new offense which it called felonious rape, although the new offense lacked the one and only element which at common law distinguished rape from ordinary unlawful intercourse, did not intend to attach to the word a meaning which theretofore attached to common law rape only, so that an unintentional homicide occurring in its commission became murder of the first degree.</p> <p>8. Where on the trial of one accused of murder it appeared that the prisoner, a man of twenty-five years of age, had attempted to have sexual intercourse with deceased, a girl of twelve and' a half years; that injuries had thereby been inflicted upon her person, and that death had resulted from the shock and exposure which she had experienced, but lack of consent was not shown, a conviction of murder of the first degree, and sentence of death was erroneous,’ the Word rape as used in the Act of March 31; 1860, Sec. 74, P. L. 382, could not be extended to include within its scope the offense denounced by the Act of May 19, 1887, P. L. 128.</p> <p>Mit. Justice Moschzisker dissents.</p>

<p>Appeal, No. 180, Oct. T., 1912, by plaintiff, from decree of O. P. No. 2, Allegheny Co., July T., 1910, No. 1022, dismissing bill in equity for the dissolution of a partnership, in case of Samuel Cruzan v. Elmer E. Cruzan, Lou Stiltz, Mary B. Stewart and Haven Y. Wolf, Guardian Ad Litem of Lindle Olive Cruzan and Jean Cruzan, heirs at law of Gertrude M. Cruzan.</p> <p>Bill in equity for the dissolution of a partnership, for the appointment of a receiver and for an accounting. Before Pbazeb, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Exceptions to the findings of fact and law of the trial judge were dismissed by tbe court and a decree was entered dismissing the bill. Plaintiff appealed.</p> <p>Errors assigned, among others, was the decree of the court.</p>

<p>Negligence — Street rilways — Trolley cars — Duty to avoid frightening horses — Case for jury.</p> <p>1. While it is unquestionably the duty of a motorman to ring his gong with emphasis upon proper occasions, it may be negligence to ring it violently and unnecessarily, in proximity to a frightened horse whose condition is manifest.</p> <p>2. In an action against a street railway company to recover damages for personal injuries sustained by plaintiff in consequence of being thrown from a wagon by the frightening of his horse, plaintiff’s evidence tended to show that he was driving across a bridge over which defendant’s cars ran; that his horse was frightened by an approaching passenger car, the gong of which was being violently rung as it neared the bridge; .and that the motorman continued to ring the gong though he could have seen that plaintiff’s horse was shying and excited, and though plaintiff warned him to stop by throwing up his hand. Defendant offered evidence to the effect that the horse frightened at an ash car, which was standing still in front of the passenger car; that the passenger car had also stopped and was started again in the usual quiet way, with perhaps a single tap of the gong; and that the mere sight of the car proceeding in the ordinary way caused the horse to shy and become unmanageable. The trial judge left the question of defendant’s negligence' to the jury, who found a verdict for the plaintiff upon which judgment was entered. Seld, no error.</p>

<p>Appeal, No. 221, Jan. T., 1913, by defendant, from judgment of O. & T. Lackawanna Co., April Sessions, 1913, No. 11, on verdict of guilty of murder of the first degree, in case of Commonwealth of Pennsylvania v. John Chiemilewski.</p> <p>Indictment for murder. Before Edwards, P. J.</p> <p>Prom the record it appeared that the deceased McAndrew, who was a patrolman, had gone to the house of defendant on the night of the killing in company with two other officers, for the purpose of arresting two companions of defendant for robberies in which defendant had participated.</p> <p>The court charged the jury, inter alia, as follows:</p> <p>“I need not comment on the dying declaration of the deceased. You heard the statement and you are in duty bound to give it the weight it deserves. The theory of the law is that a person is apt to tell the truth in such a solemn moment, but the fact that a man is dying when he makes a declaration of any kind must be considered by the jury in the light of all the conditions and all the circumstances surrounding the dying man.” (31)</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Verdict of guilty of murder of the first degree upon which sentence of death was passed. Defendant appealed.</p> <p>Errors assigned, among others; were the first, complaining of the refusal of the court to quash the array of jurors; the second and tenth, referred to in the opinion of the Supreme Court, and (31) above instruction.</p> <p>The writ of venire was fatally defective: Com. v. Smith, 2 S. & R. 300; Com. v. Chauncey, 2 Ashmead 90; Dyott v. Com., 5 Whart. 67. The opening, unlocking and ufisealing of the jury wheel in the absence of one jury commissioner was illegal: Brown v. Com., 73 Pa. 321; Com. v. Baranowski, 5 Pa. C. C. R. 642; Kittanning Ins. Co. v. Adams, 110 Pa. 553; Com. v. Sloan, 15 Pa. D. R. 865; Curley v. Com., 84 Pa. 151; Com. v. Shew, 8 Pa. D. R. 484. The evidence of the commission of other crimes was inadmissible: Shaffner v. Com., 72 Pa. 60; People v. Shea, 147 N. Y. 78; Com. v. Jackson, 132 Mass. 16; Hope v. People, 83 N. Y. 418; Com. v. Grether, 204 Pa. 203; Com. v. Major, 198 Pa. 290.</p> <p>The charge to the jury was erroneous: Com. v. Curcio, 216 Pa. 380; Com. v. Colandro, 231 Pa. 343; Com. v. Silcox, 161 Pa. 484; Com. v. Cooseboom, 155 Mass. 298; People v. Clarke, 105 Mich. 169.</p> <p>The defect in the writ of venire was amendable and did not affect the merits of the case: Bailey v. Musgrave, 2 S. & R. 219; Com. v. Smith, 2 S. & R. 300; Benjamin v. Armstrong, 2 S. & R. 392; Com. v. Chauncey, 2 Ashmead 90; Dyott v. Com., 5 Wharton 67; Rolland v. Com., 82 Pa. 306; Com. v. Miller, 4 Phila. 210; Com. v. Van Horn, 188 Pa. 143; Com. v. Rusic, 229 Pa. 587; Johnson v. Com., 115 Pa. 369; Maloney v. Simpson, 226 Pa. 479; Baker v. Smith, 4 Yeates 185; Berthon v. Keeley, 4 Yeates 205; Peddle v. Hollinshead, 9 S. &. R. 277; Brown v. Com., 73 Pa. 321; Com. v. Manfredi, 162 Pa. 144; Curley v. Com., 84 Pa. 151.</p> <p>The evidence of the Commission of the other crimes was properly admitted: Com. v. Colandro, 231 Pa. 343; Com. v. Birriolo, 197 Pa. 371; Goersen v. Com., 106 Pa. 477; Goersen v. Com., 99 Pa. 388; McManus v. Coin., 91 Pa. 57; Hester v. Com., 85 Pa. 139; Carroll v. Com., 84 Pa. 107; Campbell v. Com., 84 Pa. 187; Com. v. Spencer, 6 Pa. Superior Ct. 256; Com. v. Major; 198 Pa. 290; Com. v. Grether, 204 Pa. 203.</p>

<p>Appeal, No. 21, Oct. T., 1913, by defendants, from judgment of O. P. Allegheny Co., Jan. T., 1910, No.. 827, on verdict for plaintiff in. case of The William M. Roylance Company, a corporation, v. Eugene Descalzi, John B. Descalzi, L. J. Descalzi, Peter, L. Descalzi and Angelo Descalzi, partners trading as. Descalzi Fruit Company.</p> <p>. Assumpsit to recover damages for breach of contract for the purchase of fruit. Before Davis, J.</p> <p>. The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,543.85 and judgment thereon. Defendants appealed.</p> <p>Errors assigned were various rulings of the trial judge, various instructions to the jury and answers to points.</p>

<p>Appeal, No. 40, Oct. T., 1913, by William M. Craig, terre tenant, from order of C. P.. Allegheny Co., Oct. T., 1912, D. S. B. No. 794, refusing to .open or strike off a judgment in case of R. M. Fritz, now for use of Ella McK. Fritz, v. Joseph Horten and Gertrude Horten.</p> <p>Petition for rule to open or strike off a confessed judgment. Before Macfaelane, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused the petition. Petitioner appealed.'</p> <p>. Error assigned was in refusing the petition.</p>

<p>Appeal, No. 30, Oct. T., 1913, by defendants, from judgment of O. P. Allegheny Co., Third T., 1909, No. 41, on verdict for plaintiff in case of Ohio Valley Trust Company, Receiver of Farmers Co-Operative Supply Company, a corporation, v. Russell M. Allison and John V. Hooper, late partners, doing business as Allison & Hooper.</p> <p>Assumpsit to recover a sum paid on account of the purchase price of land. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiffs for $1,763.31 and judgment thereon. Defendants appealed.</p> <p>Errors assigned, among others, were various rulings of the trial judge, and various instructions to the jury referred to in the opinion of the Supreme Court.</p>

<p>Appeals, Nos. 41 and 42, Oct. T., 1913, by defendant, from judgment of C. P. Alle-</p> <p>gheny Co., Aug. T., 1910, No. 393, on verdict for plaintiffs in case of W. D. McBride and Margaret E. McBride, his wife, v. William McNally.</p> <p>Trespass to recover damages for personal injuries. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for W. D. McBride for $1,500 and for Margaret E. McBride for $2,500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various instructions to the jury., the refusal of the court to direct a verdict for defendant and to enter judgment for defendant, n. o. v.</p>

<p>Contracts — Construction—Assignments—Equitable assignments —Decedents’ estates — Distribution.</p> <p>1. While no particular words or form of instrument are necessary to constitute a valid assignment, appropriate words which in themselves are unequivocally expressive of an intention to transfer property are of such common usage, that when these are not employed in a transaction alleged to be an assignment, the inference may be drawn that they were not employed because not expressive of the intention of the parties.</p> <p>2. The idea of assignment is essentially that of the transfer of property in which the assignee parts with the whole property in the thing assigned. An agreement under which the supposed assignor retains any control over the fund, authority to collect, or power of revocation, does not constitute an equitable assignment. The transfer must be of such a character that the holder of the fund can safely pay and is compellable to do so, though forbidden by the assignor.</p> <p>3. The distributees under a will empowered and directed the executors and trustees thereunder to pay out of the income of the estate belonging to the distributees an .annual sum of $3,000 to an uncle, deducting the same in equal proportions from the income of their respective shares, and reserved the right of revocation by unanimous agreement of said distributees and without the consent of the uncle. Upon the filing of the account the Orphans’ Court decreed that distribution be suspended until after the death of the uncle, on the ground that the direction to the executors and trustees amounted to an equitable assignment to the uncle. Held, error.</p>

<p>Appeal, No. 47, Oct. T., 1913, by defendant, from judgment of O. P. Allegheny Co., Sept. T., 1910, No. 498, on verdict for plaintiff in case of Emma B. Glancy v. The Borough of McKees Bocks.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict for plaintiff for $2,250 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 54, Oct. T., 1913, by defendant, from order of C. P. Allegheny Co., Oct. T., 1912, No. 71, discharging a rule to open a confessed judgment in case of R. B. Wright v. Annie M. Linhart.</p> <p>Rule to open judgment upon a single bill confessed by warrant of attorney. Before Shaper, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged the rule. Defendant appealed.</p> <p>Error assigned, among others, was in discharging the rule.</p>

<p>Judgments — Warrants of attorney to confess judgments — Correction of errors and mistakes — Amendments—Practice, C. P.</p> <p>1. After a judgment has been confessed by virtue of a power of attorney the warrant becomes functus officio. Neither the court, the prothonotary, nor the attorney who confessed the judgment has power to do any act which would have the effect of giving vitality to the exhausted power.</p> <p>2. For errors in the entry of such a judgment or for the correction of clerical mistakes, application should be made to the court to correct the original judgment so as to make it conform to the facts, not to enter a new judgment.</p> <p>3. Where a judgment was confessed by virtue of a warrant of attorney hut, through a clerical error, for a smaller sum than the note and warrant of attorney authorized, and the court allowed the plaintiff to amend his declaration, and confession of judgment, and entered an amended judgment for the proper sum, the first Judgment was merged in the second which was irregular and voidable, but as it appeared that the amended declaration was sufficient to sustain an action on the note, an order was entered directing the court below to open the judgment so as to let the defendant into a defense.</p>

<p>Appeal, No. 59, Oct. T., 1913, by E. E. Fulmer, Executor, from the decree of O. C. Allegheny Co., Sept. T., 1912, No. 57, surcharging the executor in Estate of George S. Fulmer, deceased.</p> <p>Exceptions to adjudication. Before Miller, J.</p> <p>The opinion bf the Supreme Court states the facts.</p> <p>The court dismissed the exceptions.</p> <p>Errors assigned were in overruling various exceptions to the findings of the auditing judge.</p>

<p>Negligence — Master and servant — Defective tools — Case for jury.</p> <p>1. While a specific act of negligence causing injury must be shown to enable an employee to recover from his employer, and the jury cannot be permitted to guess the cause, the employee meets the burden of proof by showing a cause for which defendant was responsible, sufficient to produce the injury complained of, and that other causes which might have produced the injury did not exist.</p> <p>2. In an action of trespass to recover damages for personal injuries sustained by plaintiff, a pattern maker, apparently in consequence of defects in a lever and screw attached to the guard of a circular saw in the operation of which plaintiff was injured, a verdict and judgment for plaintiff was sustained, where it appeared that there was no other cause which could have produced the injury, and that defendant’s foreman had been repeatedly notified of the defects, of which plaintiff was ignorant.</p>

<p>Negligence — Automobiles — Pedestrians — Contributory negligence — Care in crossing street — Death.</p> <p>1. In a crowded city street the dictates of common prudence require that a heavy vehicle, such as an automobile, shall be kept under control so as to avoid, or at least minimize, the dangers of a collision.</p> <p>2. It is not the duty of one crossing a public roadway to stop, but he must look and listen to ascertain if vehicles are coming, and must be on his guard after he starts on to the street, and must continue on the alert while crossing the entire roadway.</p> <p>3. In an action of trespass to recover damages for death caused by a collision with an automobile, it was proper to permit the jury to take into consideration the distance which the machine traveled before it came to a stop after the deceased was struck, in estimating the speed of the car.</p> <p>4. In an action of trespass to recover damages for the death of plaintiff’s husband killed in a congested street by an automobile driven by defendant’s chauffeur in the course of his employment, where plaintiff’s testimony tended to show that the' automobile was moving at from twelve to fifteen miles an hour; that deceased was struck by the front of the car near its center and that the car moved forty or fifty feet after the collision before it was stopped, while defendant’s testimony tended to show that the automobile was running slowly when deceased stepped from behind a wagon directly into the side of the mud guard on the car, the front of which did not strike him, the case was for the jury, and a verdict and judgment for plaintiff will be sustained.</p>

<p>Corporations — Receivers — Receiver’s sale — Resale — Bonds — Breach of condition — Recovery.</p> <p>In an action of assumpsit on a bond conditioned that defendants would bid $11,000 for the property of an amusement company in the hands of a receiver and pay the same if the property should be knocked down to them, it appeared that the receiver had sold the property for $8,000 at a public sale previously held; on exception by one of the defendants to the return the sale was set aside under order of court requiring the exceptant to file a bond in pursuance of which the defendants filed the bond in suit; that thereafter the receiver held a second sale on terms requiring that 15 per cent, of the purchase money be paid at the time of sale, and the balance upon the confirmation thereof. The property was sold for $11,250 to a third person, who gave the receiver a cheek for 15 per cent', of the purchase money, which was subsequently dishonored; and at a resale ordered by the court the property was sold for $4,000. The receiver claimed $7,000, being the loss sustained on the resale. Defendants offered evidence that the receiver and his counsel were notified before the second sale to secure from the purchaser 15 per cent, of the purchase price but that the receiver replied that he would take a chance of getting the money; and that the creditors were then present and willing to pay $11,000 for the property. It appeared that defendants had bid $11,000 at the resale but there was evidence that they had induced a third person, who was financially irresponsible, to bid $11,250 so as to evade responsibility for their bid and that defendants had agreed to pay such third person the difference between $11,000 and the amount of his bid. The court charged the jury that the burden of proof was upon the receiver to show that he had conducted the sale in good faith under the order of the court and that he had exercised the proper care in carrying out this order and that the sale was consummated in so far as could be done; that if there was no fault upon his part or if the defendants through their own fault caused the property to be knocked down to an irresponsible bidder and a cheek to be given for which there were no funds in bank, they had no defense, as they were bound to appear at any future sale and make good their bid of $11,000. The jury found a verdict for plaintiff upon which judgment was entered. Held, that the judgment should be affirmed.</p>

<p>Appeal, No. 149, Oct. T., 1913, by plaintiff, from judgment of C. P. Allegheny Co., Aug. T., 1910, No. 394, of compulsory nonsuit in case, of Henry Peters v. Vesta Coal Company.</p> <p>Trespass to recover damages for personal injuries. Before Carnahan,- J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge entered judgment of compulsory non-suit which the court in bane subsequently refused to take off! Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 133, Oct. T., 1913, by defendant, from judgment of O. P. Allegheny Co., Nov. T., 1910, No. 205, on verdict for plaintiff in case of Edward Curran v. Louis Lorch.</p> <p>Trespass to recover damages for personal injuries. Before Frazer, P. J.</p> <p>The opinion of the Supreme Court states the facts. Verdict for plaintiff for $4,250 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was the first which was as follows: The court erred in refusing the defendant’s motion to withdraw a juror and continue the case which motion occurred in the course of taking testimony as follows:</p> <p>By Mr. Marshall: “Q. You built a garage up at your house, didn’t you? A. I think so.”</p> <p>“Q. And when did you build that garage, in August? A. I don’t know.”</p> <p>“Q. And you brought him up there and kept him up there for two weeks after the garage was finished in August? A. I don’t know.”</p> <p>“Q. And you did send him to Mr. Dickie’s office with Mr. Dowler? A. Yes, sir.”</p> <p>“Q. And you said, ‘I don’t care; I am insured. Take him down to the insurance company?’ ”</p> <p>By Mr. Dickie: “Objected to.”</p> <p>By the Court: “I do not think it makes any difference whether he was insured or not.”</p> <p>By Mr. Marshall: “Well, if your honor does not think so, I will not press it.”</p> <p>By Mr. Dickie: “I move that a juror be withdrawn and the case continued.”</p> <p>“Motion refused.”</p> <p>“To which ruling pf the court counsel for defendant requests an exception.”</p> <p>“Exception allowed and bill sealed.”</p>

<p>Negligence — Street railways — Infants—Damages—Pain and sufi fering — Charge—Case for jury.</p> <p>1. In an action of trespass to recover damages for personal injuries sustained by a boy through being struck by a trolley car upon a city street, the case was properly submitted to the jury where there was evidence that as the car approached the boy the bell was not rung and no other signal was,given; that, had the motorman been attending to his duties he could have seen' the child approaching the track when the car was eighty or’ ninety feet from the place of the accident but that he did not apply the brakes •until the car struck the boy.</p> <p>2. In such a case it was held no error for the court to charge: “Suffering has not any market price but it is left to the good judgment and common sense of the jury to say to what amount the plaintiff should be compensated or what amount should be allowed for the pain and suffering he has endured, or may probably endure in the future. He is entitled to be compensated for whatever you would think would be fair under the circumstances.”</p>

<p>Appeal, No. 73, Oct. T., 1913, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1912, No. 1119, Docket C., for plaintiff on rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit on a promissory note.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Macearlane, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made the rule absolute. Defendant appealed.</p> <p>Error assigned was in making absolute the rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Negligence — Master and servant — Defective machinery — Foreman — Vice-principal—Assumption of rislc — Contributory negligence — Case for jury.</p> <p>1. A foreman of a steel company who gives all orders to persons employed in and about certain cranes, who has full charge of both employees and machinery and whose acts, in employing and discharging men though reported to the superintendent, always receive the superintendent’s approval, is a vice-principal to the extent that he is the proper person to be notified of defects in said cranes and in the appliances connected therewith.</p> <p>2. It is not an assumption of risk to continue work in and about machinery having certain defects and made dangerous by the accumulation of grease, where the foreman who has been notified of the conditions of the machinery, has told the workman to continue his work, and that the condition would be remedied in a few days.</p> <p>3. In an action of trespass to recover damages for personal injuries, it appeared that plaintiff, a crane operator, was operating a crane traveling on a run attached to parallel steel girders at a height of twenty-five or thirty feet above the ground; that while so engaged a part of the machinery broke, requiring plaintiff to walk along the steel girder to a drum, also a part of the machinery, and remove a broken strap; that while so engaged plaintiff’s foot slipped in consequence of an accumulation of grease on the girder, and he fell to the ground sustaining the injuries complained of. It further appeared that defendant’s foreman, who was a vice-principal, had been notified by plaintiff of the condition of the drum causing leakage of grease in large quantities onto the girder, and had told plaintiff to continue his work, and that the defects would be remedied. Held, that the doctrine of assumption of risk did not apply, and that the questions of defendant’s negligence and plaintiffs contributory negligence were for the jury.-</p>

<p>Appeal, No. 4, Oct. 7, 1913, from judgment of O. P. Allegheny Co., April T., 1912, No. 263, for plaintiffs, on rule for judgment for want of a sufficient affidavit of defense in case of D. P. Carpenter v. Alvin E. Hutchison, H. J. McAvoy and Edward G. Steinert.</p> <p>Assumpsit to recover from sureties the amount of a bond given by a corporation to secure debt, interest and costs on appeal from award of arbitrators.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Brown, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made the rule absolute. Defendants appealed.</p> <p>Error assigned was in making absolute the rule for judgment for want of a sufficient affidavit of defense.</p>

Appeals, Nos. 146 and 162, Oct. T., 1913, by plaintiff and cross plaintiff, from decree of C. P. Allegheny Co., Jan. T., 1911, No. 360, in equity, dismissing bill and cross-bill in equity in case of The Colonial Trust Company, a corporation, Receiver of John A. Wood, Jr., bankrupt, v. The Central Trust Company, a corporation, and Clara J. Kirkland.

<p>Appeal, No. 147, Oct. T., 1913, by defendant, from judgment of O. P. No. 4, Allegheny Co., Third T., 1910, No. 540, on verdict for plaintiff in case of Fanny Jenkner v. Supreme Tent of the Knights of the Maccabees of the World, Bessemer Tent No. 9f2, Knights of Maccabees of the World.</p> <p>Assumpsit on a policy of life insurance. Before CabNAHAN, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>. Verdict for plaintiff for $1,899.78 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various instructions to the jury, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 68, Oct. T., 1913, by defendant, from judgment of O. P. Allegheny Co., July T., 1912, No. 2966, Docket B, discharging rule for judgment for want of a sufficient affidavit of defense, in case of the Borough of Carrick v. Rt. Rev. Regis Canevin, Trustee of St. Joseph’s Congregation.</p> <p>■ )Scire facias sur municipal claim for grading, curbing and paving.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Caknahan, J.</p> <p>The opinion of the Supreme Court states the facts. The court discharged the rule. Plaintiff appealed.</p> <p>Error assigned was in discharging the rule.</p> <p>The allegations of want of service are insufficient.</p> <p>The viewers’ report cannot he attacked in a collateral proceeding: Tarentum Borough v. Presbyterian Church of Tarentum, 57 Pitts. Leg. J. 303; Sheraden v. Methodist Church, 58 Pitts. Leg. J. 396; Western Penna. R. R. Co. v. Allegheny, 2 W. N. C. 229; Hershberger v. Pittsburgh, 115 Pa. 78; Myers v. So. Bethlehem Borough, 149 Pa. 85; Second Avenue, 7 Pa. Superior Ct. 55.</p> <p>Section 5 of the Act of June 4, 1901, P. L. 364, as amended by the Act of March 19, 1903, P. L. 41, is unconstitutional as containing subject matter not expressed in the title: Juniata Twp. Bridge, 31 Pa. C. C. R. 277; Com. v. Braymer, 33 Pa. C. C. R. 209; Com. v. Ramuno, 16 Pa. D. R. 449; Com. v. Strail, 16 Pa. D. R. 891; Kaufman’s Petition, 36 Pa. C. C. R. 1; Marysville Water Co. v. Ry. Co., 13 Pa. D. R. 365; Comm’rs. of Twp. v. Rys. Co., 56 Pitts. Leg. J. 415; Sugar Notch Boro., 192 Pa. 349; Road In Phoenixville, 109 Pa. 44; Pittsburgh v. Calvary Cemetery Ass’n, 44 Pa. Superior Ct. 289; Sewickley Boro. v. Sholes, 118 Pa. 165; Philadelphia v. Barber, 160 Pa. 123; Otto Township Road, 2 Pa. Superior Ct. 20; Dorsey’s App., 72 Pa. 192; Pierie v. Philadelphia, 139 Pa. 573; Gackenbach v. Lehigh County, 166 Pa. 448; Com. v. Samuels, 163 Pa. 283; Mansfield’s Case, 22 Pa. Superior Ct. 224; Com. v. Luckey, 31 Pa. Superior Ct. 441; Stegmaier v. Jones, 203 Pa. 47; Dailey v. Potter Co., 203 Pa, 593; Quinn v. Cumberland Co., 162 Pa. 55; Bennett v. Sullivan County, 29 Pa. Superior Ct. 120; Weiss v. Swift & Co., 36 Pa. Superior Ct. 376; Com. v. Kebort, 212 Pa. 289.</p> <p>The requirements of the act of assembly as to notice were not complied with: Krauczunas v. Hoban, 221 Pa. 213; Sheraden v. Methodist Church, 58 Pitts. Leg. J. 396; Corry v. Corry Chair Co., 18 Pa. Superior Ct. 271; Breed v. Allegheny, 85 Pa. 214; Hershberger v. Pittsburgh, 115 Pa. 78.</p> <p>Section 5 of the Act of June 4, 1901, P. L. 364, as amended by the Act of March 19,1903, P. L. 41, is not unconstitutional : Com. v. Immel, 33 Pa. Superior Ct. 388; Com. v. Herr, 229 Pa. 132; Bridgewater Boro. v. Bridge Co., 210 Pa. 105; State Line & Juniata R. R. Co.’s App., 77 Pa. 429; Carothers v. Philadelphia Co., 118 Pa. 468; Dailey v. Potter Co., 203 Pa. 593; Com. v. Kebort, 26 Pa. Superior Ct. 524; Pittsburgh v. Calvary Cemetery Ass’n, 44 Pa. Superior Ct. 289; Sugar Notch Boro., 192 Pa. 349; Stegmaier v. Jones, 203 Pa. 47; Com. v. Darmska, 35 Pa. Superior Ct. 580; Weiss v. Swift & Co., 36 Pa. Superior Ct. 376; Gilbert’s Est., 227 Pa. 648; Road in Phoenixville Boro., 109 Pa. 44; Com. v. Johns, 4 Pa. Superior Ct. 362; Com. v. Kenney, 32 Pa. Superior Ct. 544.</p>

<p>Wills — Precept to Common Pleas — Issue—Verdict—Questions of law — Jurisdiction, O. C. — Appeal.</p> <p>1. Where on the trial of a feigned issue to determine the validity of a will the jury answered the questions submitted in favor of the proponents, and the evidence, though conflicting, was sufficient to warrant the verdict, a judgment thereon will be affirmed.</p> <p>2. On appeal from a judgment of the Common Pleas on a verdict for plaintiff, rendered at the trial of an issue awarded to determine certain questions of fact relating to the execution of a will, the question whether the facts as found showed a proper execution under the Act’ of 1833 is one of law, which was for the Orphans’ Court, not for the Common Pleas, in the first instance, to decide, and which therefore could not be passed upon in the Supreme Court until the findings of fact had been certified to the Orphans’ Court, and the question had been decided there.</p>

<p>Appeal, No. 66, Oct. T., 1913, by defendant, from judgment of O. P. Allegheny Co., Nov. T., 1910, No. 355, on verdict for plaintiff in case of F. C. Sauer v. The School District of the Borough of McKees Rocks.</p> <p>Assumpsit on a written contract for services rendered by an architect. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $6,830.14 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings of the trial judge, various instructions to the jury, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p> <p>There can be no recovery of any amount in this case. The agreement is an entire contract and discloses no intention of the parties to apportion the compensation among the various items of service to be rendered by the plaintiff: Lucesco Oil Co. v. Brewer, 66 Pa. 351; Rugg v. Moore, 110, Pa. 236; Gill v. Lumber Co., 151 Pa. 534; Filsons v. Himes, 5 Pa. 452; Alcott v. Hugus, 105 Pa. 350; Fullmer v. Poust, 155 Pa. 275; Easton v. Jones, 193 Pa. 147; O’Malley v. Olyphant Boro., 198 Pa. 525; Millerstown Boro. v. Frederick, 114 Pa. 435; Chase v. Burkholder, 18 Pa. 48; Nester v. Brewing Co., 161 Pa. 473.</p> <p>The defendant had no power to engage an architect to sketch, plan, make drawings for and superintend the erection of a building which it had no power to erect. The contract is collateral to an illegal act and is connected with a breach of the supreme law of the State: Badgley v. Beale, 3 Watts 263; Biddis v. James, 6 Binney 321; Spurgeon v. McElwain, 6 Ohio Reps. 442.</p> <p>The contract between the plaintiff and the school district was valid when entered into: Dowley v. Schiffer, 13 N. Y. Supp. 552; Lord Howden v. Simpson, 10 Ad. & El. 793.</p> <p>If lawful when made the contract could not become unlawful thereafter: Barry v. Capen, 151 Mass. 99; Lord Howden v. Simpson, 10 Adolphus & Ellis 793; Harlow v. Beaver Falls Boro., 188 Pa. 263.</p> <p>Where the entire contract is legal at its inception and partly performed and subsequently cannot be completed through no fault of the plaintiff, the plaintiff can recover to the extent of his actual performance: Harlow v. Beaver Falls Boro., 188 Pa. 263.</p> <p>The measure of damages for the breach is the contract price less the cost to plaintiff of the part to be performed : Imperial Coal Co. v. Port Royal Coal Co., 138 Pa. 45.</p>

<p>Mortgages — Scire facias sur mortgage — Affidavits of defense — . Sufficient averments.</p> <p>In an action of scire facias to recover the principal of a mortgage for default in the payment of interest, where the affidavit and supplemental affidavit of defense set up the failure of consideration and the violation of a contemporaneous parol agreement which had induced the execution of the mortgage, alleging that it was made for the accommodation of the mortgagee at a time when there were unsettled accounts between the parties, the adjustment of which was necessary to determine what, if any, indebtedness existed, but that no adjustment had been made, and that when made, it would be found that the mortgagee was indebted to the mortgagor in a large amount the items of which were fully stated, and that interest was not to be paid on the mortgage, the court was not in error in discharging a rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Contracts — Divisible and entire contracts — Construction—Part performance — Affidavit of defense — Buie for judgment.</p> <p>1. Whether a contract is divisible or entire depends upon the intention of parties, to be collected primarily from the words employed. Although the terms of the contract may afford a rule for an apportionment of the consideration, yet if there be a special agreement to take the whole or nothing, or if the evidence shows that such was the purpose of the parties, the contract will be construed to be entire. A stipulation that the price shall be paid by instalments as the goods are delivered or the work proceeds, will not render a contract for an entire thing divisible, and if the contractor fails to do all he will be precluded from recovering what remains unpaid.</p> <p>2. In an action of assumpsit to recover for coke sold and delivered, defendant filed an affidavit of defense, alleging that by a written contract previously entered into between the parties, plaintiff had agreed to deliver to defendants all the coke to be produced by them during a period of six months; that shortly after the beginning of this period, at plaintiff’s request, defendants had released them from the contract upon a further agreement by plaintiff to furnish defendants such coke as was necessary for them to have to fill contracts entered into by them during the period in question, which was then and there specified as 3,680 tons during the month of July, and 2,124 tons for the months of August, September, October, November and December, at prices specified; that plaintiff had delivered during July 844% tons less than the amount called for, and had failed to deliver any coke whatever during the month of September. It appeared that suit was brought September 19th, to recover for coke delivered during July. Held, that the contract if as set forth in the affidavit, was entire; and that there could be no recovery by plaintiff for partial performance. The judgment of the court below for want of a sufficient affidavit of defense was reversed.</p>

<p>Appeal, No. 168, Oct. T., 1913, by Woman’s Hospital of Pittsburgh, from decree of O. O. Allegheny Co., March T., 1913, No. 101, dismissing exceptions to adjudication in Estate of Thomas N. Miller, deceased.</p> <p>Exceptions to adjudication. Before Miller, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Appeal, No. 170, Oct. T., 1913, by defendant, from judgment of C. P. Allegheny Co., June T., 1910, No. 249, on verdict for plaintiff in case of John J. Gordon v. The Great Atlantic & Pacific Tea Company.</p> <p>Trespass to recover damages for personal injuries. Before Reid, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,750 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Roads and streets — Change of grade — Boroughs—Injury to leasehold — Damages—Amendment to statement — Agreement of counsel —Chose in action — Assignment—Verdict—Remittitur—Witnesses —Competency—Evidence.</p> <p>1. In a proceeding to recover damages for injuries resulting to a leasehold interest from a change of grade of a street, evidence of the necessity for and the proper costs of raising buildings to conform to the new grade is admissible, not as a separate item of damage or as an independent fact for the jury, but as an element bearing on and affecting the market value.</p> <p>2. In such case, the fact that a witness testified that he paid a certain amount for raising the buildings instead of stating the reasonable cost thereof does the defendant no substantial harm, where later in the trial the defendant shows on direct examination-by the man to whom the money was paid that the amount was a reasonable charge and that the work was worth what he received for it.</p> <p>3. Where in such case it appears from the record that the lessee assigned his lease and claim for damages, and that the assignee thereof did and subsequently her executor assigned such lease and claim to the use plaintiff, and that by agreement of counsel a stipulation that the case should be proceeded with and tried on its merits was filed of record, it was not error for the court to admit in evidence the assignment of the claim for damages to the testatrix and the will of such testatrix, which were offered as part of the line of proof to explain the title of the use plaintiff.</p> <p>4. The competency of a witness to express an opinion regarding the value of a leasehold has been sufficiently shown where the witness testifies that he was the former owner of the leasehold and had a general familiarity with values in the neighborhood, and the admission of his testimony was not reversible error, especially where, subsequent to his examination, evidence consistent with his testimony and sufficient to sustain the verdict was given by several real estate men who knew the value of land and leases in the locality, and the competency of whose testimony was not attacked in any assignment of error.</p> <p>5. The court did not err in such case in permitting an amendment increasing the amount of damages claimed in the statement of claim, where the amendment represented no departure from the original cause of action, particularly where a stipulation had been filed by agreement of counsel permitting the use plaintiff to perfect the record so that he might be in position to prove such damages as he conceived the leasehold had suffered.</p> <p>6. A claim for damages for injuries to property caused by a change of grade of an adjacent street is assignable.</p> <p>7. It is within the power of the Court of Common Pleas to permit a verdict to stand upon condition that a remittitur for part of the verdict be filed of record.</p> <p>Practice, Supreme Court — Appeals—Assignments of error — Testimony misquoted — Defective assignment.</p> <p>8. An assignment of error complaining of admission of testimony is defective when it misquotes such testimony.</p>

<p>Equity — Equity jurisdiction — Boroughs—Gas companies — Contracts — Bights of strangers — Remedy at law.</p> <p>1. Whether the repeal of an earlier ordinance granting a franchise to a gas company on condition that it furnish churches with free gas, by a later ordinance granting the same franchise without the condition, puts an end to the gas company’s obligation to furnish free gas, is a pure question of law and is not á subject to be inquired into in equity.</p> <p>2. Where a borough granted a gas company a franchise in its streets under an ordinance stipulating that free gas should be furnished to the churches of the borough, and upon the refusal of the company to furnish free gas a mandatory injunction was awarded the churches compelling the company to furnish free gas, and thereafter the ordinance was repealed with the consent of the gas company and a new ordinance adopted conferring the same privileges as those which were conferred by the former ordinance, but imposing no obligation to supply free gas to the churches, and the gas company petitioned for a dissolution of the injunction, the court erred in refusing the petition as it appeared that the churches were not parties to the contract between the borough and the gas company, were strangers to the consideration, and had incurred no expense in reliance upon the ordinance, and whatever rights they had could be easily and accurately ascertained at law.</p>

<p>Negligence — Street railways — Infants—Case for jury.</p> <p>In an action against a street railway company to recover damages for personal injuries sustained by a girl six years old in consequence of being struck by one of defendant’s ears, the case is for the jury, and a verdict for the plaintiff will be sustained, where the disputed question of fact at the trial was whether the plaintiff had suddenly run from the sidewalk in front of the car and was not in view of the motorman until the moment she was struck, or whether she and other children were standing in the narrow space between the tracks and in full view when the car was started.</p>

Appeal, No. 187, Oct. T., 1913, by defendant, from judgment of C. P. Allegheny Co., May T., 1911, No. 252, on verdict for plaintiff in case of James Adams Clark, a minor, by his next friend and mother, Sadie Belle Clark, v. Best Manufacturing Company. Trespass to recover damages for personal injuries. Before Reid, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $20,375.14 and judgment thereon. Defendant appealed.

Appeal, No. 240, Oct. T., 1913, by defendant, from judgment of C. P. Allegheny Co., Nov. T., 1911, No. 149, on verdict for plaintiffs in case of Eleanor Mulligan, a minor, by her father and next friend, Thomas F. Mulligan, and Thomas F. Mulligan v. Borough of Homestead. Trespass to recover damages for personal injuries. Before Shafer, J. The facts appear by the opinion of the Supreme Court. Verdict for Eleanor Mulligan for $9,600 and for Thomas F. Mulligan for $400.

<p>Contracts — Construction—Evidence—Parol evidence rule — Binding instructions.</p> <p>1. The plain terms of a written contract cannot be varied by oral evidence, where there is no offer to prove that there has been any fraud, accident or mistake in the execution of the agreement. The meaning of the parties to the agreement is conclusively presumed to have been set forth in its written words, and, in the absence of ambiguity, it is for the court to construe it.</p> <p>2. Where plaintiff and defendant signed an agreement on the letter head of .a corporation and there is nothing on the face of such agreement to indicate that the defendant did not intend to be personally bound, the court does not err in refusing an offer to show that the defendant had executed the contract as the representative of the corporation and that this fact was known to the plaintiff . at the time the contract was executed.</p>

Appeal, No. 36, Oct. T., 1913, by plaintiff, from order of O. P. No. 4, Allegheny Co., Third T., 1909, No. 352, refusing to take off a compulsory nonsuit in case of Albert Balewski, plaintiff, after-wards substituted to Mary A. Balewski, Administratrix of Albert Balewski, deceased, v. Carnegie Steel Company, a corporation. Trespass to recover damages for personal injuries. Before Carnahan, J. The opinion of the Supreme Court states the facts.

<p>Practice, Supreme Court — Appeals—Assignments of error — Defective assignments.</p> <p>1. Assignments of error constitute an essential part of the pleadings before the Supreme Court and as such must be so complete in themselves as not to require reference to other parts of the record; an assignment charging error in the order of the court below over-, ruling exceptions to a bond filed in condemnation proceedings is in. palpable disregard of rule 26, where it fails to show the character of the bond filed or what exceptions were taken thereto.</p> <p>Water companies — Eminent domain — Bond to secure damages— Evidence — Witnesses—Experts.</p> <p>2. On appeal from an award of a jury of view in proceedings to condemn property for the use of a water company, exceptions to the bond filed to secure the payment of damages, which complained that no effort was made to agree with the owners of the property as to the amount of damages sustained are properly dismissed, as the filing of the bond is evidence of the inability of the parties to agree on the damages. ■</p> <p>3. The court makes no error in such case in refusing to allow an expert witness called by the plaintiffs to give his opinion as to the value of land taken where the witness on cross-examination and in reply to a question by the court, stated that he did not have and did not pretend to have any knowledge of the market value of the land taken or of the value of the land in its vicinity.</p>

<p>Practice, G. P. — Judgment n. o. v. — Point for binding instructions — Act of April 22, 1905, P. L. 286 — -Motion for new trial.</p> <p>1. The right to move for judgment non obstante veredicto upon the whole record is given by the Act of April 22, 1905, P. L. 286, only to a party who has presented a written request for binding instructions which has been reserved or refused; an oral request does not meet the requirements of the act.</p> <p>2. Where at a trial of an action of assumpsit defendant files no written request for binding instructions' in his favor, and upon verdict being rendered for the plaintiff by direction, does not move for a new trial, but contents himself with a motion for judgment non obstante veredicto upon the whole record, which is granted, such judgment will he reversed on appeal, and leave to file a motion for a new trial will not be granted, no such motion having been made or filed in the court below. The Supreme Court must accept the record of a case on appeal as it finds it and cannot read into it what it does not contain.</p>

<p>Appeal, No. 207, Oct. T., 1913, by defendant, from judgment of O. P. No. 2, Allegheny Co., Oct T., 1910, No. 735, on verdict for plaintiff in case of Hannah Francis v. The Prudential Insurance Company of America.</p> <p>Assumpsit on a life insurance policy.</p> <p>The facts appear by the following opinion of Reid, J., sur defendant’s motion for a new trial and for judgment n. o. v.</p> <p>Plaintiff, the widow of Joseph M. Francis, sues to recover upon a policy of insurance issued by defendant on the life of her husband. The form of policy was ( known as the “Annual Dividend Whole Life.” It bears date January 27, 1899, and provides for the payment of the sum of $1,500 to the plaintiff, in the event of death of the assured. The premium thereon was to be paid in quarterly installments of $13.01.</p> <p>Assured died May 20, 1909, and due proofs of death-were prepared and tendered, but defendant, disclaiming liability, for the reasons hereinafter stated, declines to receive them.</p> <p>The policy in evidence, the original of which is annexed to plaintiff’s declaration, contained (inter alia) the following provisions:</p> <p>PRIVILEGES.</p> <p>CASH LOANS.</p> <p>(Here follows provision for loans to be based upon the table which is appended.)</p> <p> “Paid-up Life Policy or Extended Insurance. </p> <p>“If this Policy, after being in force full three years, shall lapse or become forfeited for the nonpayment of any premium or any note given for a premium or loan made in cash on such Policy as security, or of any interest on such note or loan, it may be surrendered for a nonparticipating Paid-up Life Policy as specified in the following, table; provided the policy is legally surrendered to the Company within three months after such lapse or forfeiture. If this Policy having lapsed or become forfeited as above, is not surrendered for a Paid-up Life Policy, the Company will write, in lieu of this Policy, and without any action on the part of the Insured, a nonparticipating Paid-up Term Policy, for the full amount insured by this Policy and to continue in force for the term indicated by the following table of Extended Insurance. The Paid-up Term Policy shall provide, however, that in case of the death of the insured within three years from the date of such lapse or forfeiture, there shall be deducted from the amount payable by the Company the sum of all premiums that would have become due on this Policy, up to the time of the death of the insured if the Policy had continued in force, and any indebtedness due the Company on this Policy at the date of such lapse or forfeiture.</p> <p> “Table Above Referred To. </p> <p>“The benefits stated in the following table apply to the original sum insured only. If the sum insured is increased by dividends or otherwise, the benefits will be increased, but any indebtedness placed on the Policy will operate to reduce the benefits.</p> <p>Cash</p> <p>At End Cash Paid-up of Loan Policy Life Extended Surrender Ins. Yalue</p> <p>3 years■ $ 57 $142 3 years 86 days $42</p> <p>4 years 84 187 4 years 100 days 57</p> <p>5 years 107 232 5 years 78 days 84</p> <p>Assured paid no premiums after January 27, 1904. His quarterly premium for April 27, 1904, became due, and remaining unpaid, the policy not being surrendered, the foregoing provision as to automatic extension of insurance became effective, and, so far as the face of the policy is concerned, assured became entitled to the protection of the policy for five years and seventy-eight days thereafter, or, to a period beyond the date of his death (May 20,1909).</p> <p>But, defendant contends, that, by reason of the fact that on April 27, 1904, the assured was indebted to the company for loans advanced him on the policy, aggregating, less dividends, the sum of $86.27, the period of extended insurance was, “by actuarial computation,” reduced to 308 days, and terminated March 1, 1905, or almost four years before the date of death.</p> <p>The basis of this defense is thus stated in the affidavit of defense, and is an excellent resume of the proposition:</p> <p>“By actuarial computation the said Joseph M. Francis, on the 27th day of April, 1904, became entitled to extended insurance under the terms of said policy for a period of 308 days......or until March 1, 1905, that being the term of extended insurance allowed under said policy by actuarial computation of the amount of the surrender value of the said policy, at the date of its lapse, and the debt and accumulated interest, that being the amount of extended insurance that could be purchased by the legal reserve for the policy.”</p> <p>Another defense is, that demand having been made by letter, for repayment of the loan, the payment not having been made, the policy became forfeited and void under the following provisions in the loan certificate signed by assured when he became a borrower:</p> <p>“That if the said loan with the accumulated interest shall become equal to the legal reserve for the said policy, the Company may demand immediate payment of said loan, or any part thereof, with all interest accumulated and accrued thereon, and if the same be not paid to the Company within 30 days after due notice by mail, or otherwise, the said policy shall become forfeited and void.”</p> <p>It is contended by defendant that this language is also to be read into the terms, of the policy as to extended insurance, and the latter to be interpreted by the foregoing expressions as to the period “when said loan, with accumulated interest shall become equal to the legal reserve for said policy.”</p> <p>It was strenuously contended at the trial, and as strenuously now urged here that the only rational interpretation of the clauses referred to is to the effect that it was the purpose and intention of the parties that only such amount of extended insurance should be allowed as the legal reserve would purchase — and that the five year and 78-day period, specified in the table, must be disregarded accordingly.</p> <p>The court refused to allow the testimony of the actuáry of the company as to the method of computation, and the result thus obtained, in contradiction to the written language of the parties, to reduce the period of extended insurance to the point required by defendant’s theory, and held that no part of the language of the policy or of the loan certificate was susceptible of such interpretation.</p> <p>The defense was accordingly limited to the question of the receipt, or nonreceipt, by assured of the letter notifying him of the demand for repayment of the loans, in default of which the policy would be forfeited.</p> <p>The jury found a verdict for plaintiff, allowing defendant credit for the amount of the loans, with interest, that being in accordance with the court’s interpretation of the contract as to reduction of benefits by reason of indebtedness.</p> <p>Defendant moved for a new trial, and for judgment non obstante veredicto.</p> <p>We are now to consider these motions.</p> <p>It may be that the method proposed by the company to determine the value of extended insurance is an equitable one, and that it will be well, in future, to so write its policies as to provide for it; but we cannot read into a contract an elaborate system of scientific actuarial computations unless it be so “nominated in the bond.” No such contract can be found. Under the head-line, “Paid-up Life Policy or Extended Insurance,” the only limitation upon the right of the assured to have a policy “to continue in force for the term indicated by the following Table of Extended Insurance” is, that, in the event of any existing indebtedness, it shall be deducted before the payment of the amount of the policy.</p> <p>The clause following the line, “Table Above Referred To,” which reads, “if the sum insured be increased by dividends or otherwise, the benefits will be increased, but any indebtedness placed on the policy will operate to reduce the benefits,” must be read in connection with the language quoted above, wbicb applies to payment of debts at time of any policy falling due; and such deduction, by which the amount of the payment or “benefit” is reduced, is the logical and natural result of me use of the terms.</p> <p>In the first place, the policy expressly and emphatically says that such extended insurance will be issued to continue in force for the term indicated, i. e., five years and seventy-eight days — not for such fractional part of five years and seventy-eight days as computation by actuary might show the reserve fund value, set apart for this particular policy, would purchase.</p> <p>Can the phrase, “reduction of benefits” be read to mean that the parties must submit the question of the extended term to an actuary and delve into the financial policy and accounting system of defendant before it can be known to what extended insurance the assured shall be entitled — notwithstanding the printed language carefully chosen by the company itself?</p> <p>The language of the loan certificates, instead of supporting the defendant’s contention, is, if anything, a complete answer to its position. It is said that the terms of these documents must be read into the policy. So they must, to determine the rights of the parties as to loans and the penalties for noncompliance with the terms of these loans — but not to affect the portions of the policy not otherwise involved. Thus, the language that “if the loan with accumulated interest shall become equal to the legal reserve for said policy, the company may demand immediate payment,” surely cannot mean that the applicant thereby agrees that the previous positive period fixed as that of extended insurance, shall by such a collateral agreement, be entirely changed, and a new system agreed upon to determine his rights as to such extended insurance. True, this provision may be the beginning of a process of entirely terminating all of the rights of the assured, but it is not the beginning of a new; contract to thereafter govern the policy and the parties — save as a measure in terrorem. It provides a penalty, is in itself a complete remedy in case of default — but that very fact, and tbe careful preparation of such means of action, outside tbe terms of the policy, clearly indicate the purpose that it shall have no further effect.</p> <p>If there be an ambiguity in the terms of this policy, it must be construed most favorably to the beneficiary, the language of Smith v. Life Insurance Co., 103 Pa. 177, being: •</p> <p>“A condition in a policy of insurance, being in the language of the company, must, if there be any ambiguity in it, be taken most strongly against it; if reasonably susceptible of two interpretations, it is to be construed in favor of the assured, so as not to defeat, without plain necessity, his claim to indemnity which it was his object to secure.”</p> <p>We have not overlooked the able brief of defendant’s' counsel. We are not convinced, however, by any of the authorities of other jurisdictions, that we have committed error. Taylor v. N. Y. Life Ins. Co., 197 N. Y. 324, and Perry v. Prudential Ins. Co., 129 N. Y. Supp. 751, are clearly distinguishable from the case before us.</p> <p>In the Taylor case, a note was given, and this, in connection with the Insurance Law of the State of New York, was read into the policy. In the Perry case, there was a specific agreement in the loan certificate that the amount of the loan should operate to reduce the term of extended insurance......in accordance with the rules of the company.”</p> <p>In the case at bar, so far from embodying any such provsions, there is no reference whatever to the rules of the company as to computing extended insurance, and only a clause already quoted and considered, authorizing forfeiture if, when the loan and accumulated interest shall become equal to the legal reserve, the assured fails to pay up at once, on demand.</p> <p>As to the second branch of the defense, the question of whether the notice of demand which would warrant the forfeiture under the fifth clause of the loan certificate, was received by defendant, was fully and fairly submitted to the jury. It was a question of fact. The credibility of the witnesses and the inferences to be drawn from facts were for them. It is not every close case that is to be ruled by the court as against the determination of the jury. There must have been no evidence, or in any event, not more than a scintilla, to warrant the court in interfering. We cannot say that such was the fact here. Forfeitures are not favorites of the law. This notice was intended to work a forfeiture. If it reached its destination and was delivered, plaintiff's rights were at an end. The jury found it did not reach the assured, and he therefore had no notice of forfeiture. We cannot interfere.</p> <p>The motion for new trial is refused, and the rule for judgment non obstante veredicto must be discharged.</p> <p>Errors assigned were answers to points, various instructions to the jury, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 223, Oct. T., 1913, by City Improvement Company, from judgment of C. P. Allegheny Co., April T., 1913, No. 763, dismissing exceptions to report of auditor in the matter of petition of the City of Pittsburgh for appointment of viewers to ascertain the costs, damages and expenses and assess the benefits arising from the extending and opening of Hamilton avenue from Fifth avenue to Penn avenue in the 11th and 12th wards of the City of Pittsburgh.</p> <p>- Petition by the City of Pittsburgh for the appointment of an auditor to ascertain costs and expenses incurred by property owners in proceedings before a jury of view which had been discontinued.</p> <p>' The case was referred to W. S. Miller, Esq., as auditor.</p> <p>The auditor allowed certain claims and disallowed others as appear by the opinion of the Supreme Court.</p> <p>- Excéptions to the findings of fact and conclusions of law- of the auditor were dismissed by the court in’ an opinion of Frazer, P. J., and the report of the auditor was confirmed. The City Improvement Company appealed.</p> <p>Errors assigned were in refusing to quash the appointment of the auditor and in dismissing the exceptions.</p>

<p>Practice, Supreme Court — Equity practice — Findings of fact.</p> <p>1. It is not ground for reversal on findings of fact of a court of first instance that a different conclusion might have been warranted from the evidence or that the appellate court might have arrived at a different result if called upon to determine the facta as a court of first instance. The duty of the appellate court in reviewing findings of fact is to ascertain whether there was tesi* inony, which, if believed, would sustain the findings. • ■</p> <p>■ Corporations — Water companies — Water rates — Act of April 29, 1874, P- L. 78, Sec. 84 — Valuation of plant — Reasonable rates.</p> <p>■2. In a suit in equity to restrain a water company from shutting off a supply of water to consumers who refused to sign contracts to pay increased rates and to have the court inquire into the reasonableness of the proposed increase of rates, under the Act of April 29, 1874, P. L. 73, Section 34, where the valuation by the court of the plant of the water company as a basis for ascertaining reasonable rates, was complained of, where it appeared that such valuation had been determined after considering all the evidence presented and there was testimony to support the conclusions of fact reached by the court below, the Supreme Court will not on appeal reverse the findings of fact of the chancellor.</p> <p>3. The lower court made no error in such case in not setting out in its findings each separate item of value and taking the sum total of such separate items as the value of the plant, where in its opinion it stated that all items had been considered in fixing the value of the plant.</p> <p>4. Water rates established by a court of equity under the Act of April 29, 1874, P. L. 73, Section 34, must not be confiscatory and must be such as to yield a fair return upon a just valuation of the plant. Where there is evidence to support a finding that the rates as established will yield a fair return upon the capital invested, a decree fixing such rates will be affirmed.</p> <p>5. Where in such case it appeared that a proposed increase in water rates would have yielded a profit to defendant water company of 7.72 per cent, on the valuation of the plant as alleged by the defendant, the court made no error in establishing a rate sufficient to yield a return of not less than six per cent, upon the valuation of the plant as fixed by the court</p> <p>Equity practice — Taxpayers’ hills — Parties entitled to relief — Refund of water rates paid.</p> <p>6. Where the bills were filed in such case by various boroughs and by two citizens and taxpayers of each borough on their own behalf and on behalf of other citizens who were consumers of water, the court made no error in assuming jurisdiction with respect to the general subject under consideration and in decreeing that the water company should refund what it had collected in excess of a reasonable rate to persons who were not named as parties plaintiff in the bills, but who were in like situation with the individual plaintiffs.</p>

<p>Corporations — Water companies — Contracts with boroughs — Water rates — Reasonable rates — Equity—Act . of April 29, 1874, P. L. 78, Sec. 84-</p> <p>1. A borough ordinance granting a franchise to a water company and providing that “the rates charged by said company for water furnished for domestic purposes by contract or by meter measurement shall not exceed the rates now charged by the City of Pittsburgh,” but containing no definite schedule of rates and not limited as to time, is revocable on notice, under changed conditions.</p> <p>2. Where in a suit in equity under the Act of April 29, 1874, P. L. 73, Section 34, to enjoin defendant water company from shutting off a supply of water to consumers and from charging increased rates alleged to be unreasonable, it appeared that plaintiff borough had granted franchises to defendant water company by ordinance providing that the rates should not exceed the rates then charged for said service by the City of'Pittsburgh, the plaintiff could not be heard to say after the court below had fixed rates Which it deemed reasonable under the evidence that the court had no power to fix the rate because the question of rates was finally settled by the ordinances which constituted valid contracts binding upon the defendant and upon the courts.</p> <p>3. Where in such proceeding it appeared that there were no provisions in the ordinance of the City of Pittsburgh as to meter rates to be charged for domestic consumption so that it could not be said that the borough ordinances fixed any definite rates for water consumed through meters, the question of the reasonableness of meter rates was left open by the borough ordinance, and the court below had the power to hear the parties and determine under the evidence what was a reasonable charge for water so furnished.</p> <p>4. Whether a contract between a borough and a water company could be enforced if its provisions would oust the courts of their jurisdiction to determine the reasonableness of water rates not decided.</p> <p>5. Where in such case it was contended that the court below should have considered, industrial rates for 'water furnished manufacturing establishments as sidelights for its guidance in passing on the reasonableness of the rates charged for domestic consumption, but where no allegations as to the relation which industrial rates bore to domestic rates were contained in the bill, the Supreme Court could not say that the court below erred in not giving- due consideration to the subject of industrial rates.</p> <p>6. Where in such case plaintiffs complained of the valuation of defendant’s property by the court below as a basis for ascertaining a reasonable rate but where it appeared that there was testimony which, if believed, would support the findings of fact, the decree was affirmed.</p>

<p>Negligence — Evidence—Proof of loss of earning power.</p> <p>1. Loss of earning power is only one of the elements- of damage in cases of personal injuries but it is an element which must be fairly proved before an allowance can he made therefor.</p> <p>2. In an action to recover damages for personal injuries, in which the case was for the jury, it appeared that plaintiff for thirteen years prior to the time of the accident had been employed by the City of Pittsburgh as a foreman and as a special officer at a salary of $75.00 per month. Plaintiff lost no wages by reason of the accident as the city paid him at the regular rate while he was disabled and continued him in his position afterwards at the same wages. The injuries sustained by the plaintiff resulted in the loss of the greater part of one hand and a finger from the other. Plaintiff offered evidence, which was admitted against objection, to show that some thirteen years before plaintiff had been employed as a stationary engineer. It was not shown what his earning capacity was at that time nor did it appear that he earned then more than he was afterwards paid while in the employ of the city. Evidence offered by the plaintiff was also admitted against objection to show the average rate of wages paid to stationary engineers at the time of the trial, which average was considerably higher than the wages which plaintiff was actually earning. Upon appeal it was held that this evidence was improperly admitted.</p>

<p>Appeal, No. 134, Oct. T., 1913, by plaintiff, from judgment of O. P. Washington Co., Feb. T., 1910, No. 20, for defendant non obstante veredicto in case of Robert M. Bane v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before McIlvaine, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The jury found a verdict for plaintiff for $8,053.03. The court subsequently directed that judgment be entered for the defendant n. o. v.</p> <p>Error assigned was in entering judgment for the defendant n. o. v.</p>

<p>Appeal, No. 218, Oct. T., 1913, by plaintiff, from judgment of O. P. Allegheny Co., Nov. T.; 1910, No. 40, on directed verdict for defendant in case of Richard Coffee v. Monongahela Connecting Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Reid, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for the defendant by direction of the court, and judgment thereon. Plaintiff appealed.</p> <p>Error assigned, among others, was in giving binding instructions for the defendant.</p>

<p>Negligence — Master and servant — Railroads—Vice-principal— Conductor — Braheman—Scope of duties — Contributory negligence —Case for jury.</p> <p>1. A conductor, having entire control and management of a railway train, occupies a very different position from the brakemen, the porters, and other subordinates employed. He is in fact, and should be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants. The latter are fellow servants in the running of the train under his direction and as to them and the train he stands in the place of and represents the corporation.</p> <p>2. Under the rules of a railroad company 'providing that the conductor is “responsible for the movement, safety and proper care of a train, and for the vigilance and conduct of the men employed thereon” and that a brakeman while on duty was “under the direction of the conductor” the conductor comes within the plain words of the Act of June 10, 1907, P. L. 523, as a person to whose orders the brakeman is “bound to conform.”</p> <p>3. A brakeman subject to a rule of the company making it his duty to attend to the brakes “and also subject to the orders of the conductor” is within the scope of his prescribed duties when at the direction of the latter he attempts to make an inspection of a defective brake by getting on the lower step of the platform of a car while the train is in motion.</p> <p>4. In an action against a railroad company to recover damages for personal injuries sustained by the plaintiff while he was in the employ of the defendant company as a brakeman on a passenger train, the case is for the jury and a verdict for the plaintiff will be sustained where it appears that while the train was in motion it was discovered that something was wrong with one of the brakes; that the conductor of the train ordered the plaintiff to open the trap door on the platform and go down on the lower step for the purpose of locating the brake which failed to work; that when he was so ordered he expressed an unwillingness to comply while the train was in motion and the conductor replied, “That is all right, there is no danger here. You do as I tell you”; that in pursuance of this order the plaintiff got on the lower step, leaned out to look for the source of the trouble and while doing so was injured by coming in contact with a fence erected between the tracks, of the existence of which he had no knowledge, although the conductor admitted that he himself knew of it.</p> <p>Practice, O: P. — Witness—Irrelevant remarles — Withdrawal of a juror.</p> <p>5. The court made no error in such case in refusing to withdraw a juror and continue the case, where after plaintiff had repeated certain irrelevant remarks which he had made to the conductor, the trial judge said to the jury, ‘You will pay no attention to that remark at all; none whatever. It has nothing to do with the case.”</p>

<p>Appeal, No. 225, Oct. T., 1913, by Nellie Coombs and Sophia Ingles, from decree of O. C. Allegheny Co., June T., 1909, No. 267, dismissing appeal from decree of Register of Wills in Estate of George Wittmer, Sr., deceased.</p> <p>Appeal from decree of register of wills admitting to probate the will of George Wittmer, Sr., deceased.</p> <p>Over, P. J., filed the following opinion:</p> <p>This is an appeal by two children of George Wittmer, Sr., deceased, from the decision of the register admitting to probate as his will, a paper executed by him November 5, 1903, and two codicils thereto, executed on the 16th day of May, 1905, and September 11, 1906. Testamentary incapacity and undue influence being alleged.</p> <p>He died' September 12, 1908, aged seventy-four years, leaving to survive him ten children and six grandchildren, the children of a deceased daughter. There is no evidence as to testamentary incapacity, and the single question is whether an issue should be granted as to undue influence, alleged to have been exercised by Albert Wittmer over his father in procuring the will to be made.</p> <p>The will was prepared by C. J. Weitershausen* a notary public and real estate agent, now deceased, who attended to business for the decedent; was signed by him in the notary’s private office, witnessed by the notary and two other persons, they being the only persons in the room when it was executed.</p> <p>The first codicil to his will was prepared by his counsel, Mr. Trimble, in his office, no other person being present in the consultation in regard to it, nor when it was executed in the presence of George H. Calvert and Mr. Trimble, who signed as witnesses After the execution of this codicil Mr. Wittmer’s wife instituted proceedings in the Common Pleas Court to have him declared an habitual drunkard, which was bitterly contested, and resulted in a verdict by the jury in his favor June 9,1906.</p> <p>On September 10, 1906, he executed a codicil not attached to the will, in which he changed the method of determining the legacy given to his daughter Lena Thomas. This codicil was in her possession, and never offered for probate. It seems, however, that under the original will and last codicil, executed September 11, 1906, her legacy is substantially the same as by the codicil of September 10, 1906.</p> <p>The last codicil was prepared by Mr. Trimble, and witnessed by him and his stenographer.</p> <p>For the purpose of connecting Albert Wittmer with the execution of the original will, the contestants called witnesses whose testimony is to the effect that Albert met his father at Hunt’s Hotel, Allegheny City, November 4,1903; had him supplied with liquor, and he remained there all night, consuming vast quantities of whiskey; one witness George Wittmer, Jr., testified, that Mr. Weitershausen and Albert Wittmer visited his father at the hotel; that on the morning of the 5th of November, 1903, at 9 a. m., Albert Wittmer took his father up town, returned with him at 5 p. m. The recollection of these witnesses as to dates and matters occurring more than nine years prior to the time they testified seems remarkable, and the trial judge was not impressed favorably by them, nor their testimony. There was also testimony that the decedent drank excessively, and of declarations of Albert Wittmer as to his influence over his father, and that he would control him in making his will. There was also other testimony as to business transactions between them, and other matters, having so little bearing on the question at issue, that it is not necessary to discuss it.</p> <p>As against this testimony there is that of Albert Wittmer denying that he influenced the testator; the fact that all the family except Albert and another son were arrayed against their father in the habitual drunkard proceedings; the fact that Albert was not present when the will or codicils were prepared or executed; the fact that they were witnessed by credible and disinterested witnesses, all of whom testified that the decedent was of sound mind and sober when they were executed.</p> <p>Although Albert Wittmer is the largest individual beneficiary under the will and codicil, in view of the facts of this case it was natural and reasonable that he should be.</p> <p>It is clear under all the evidence in this case that a verdict against this will could not be sustained. The appeal must therefore be dismissed, and the decision of the register affirmed.</p> <p>Error assigned was in refusing an issue.</p>

<p>Contracts — Defenses—Set-off—Evidence—Bes adjudicata.</p> <p>1. The true test for ascertaining whether a final determination in a former action is a bar, or not, to a subsequent action, is whether the evidence to support both is the same.</p> <p>2. The rule that what has once been judicially determined shall not again be made the subject of litigation, extends to every question in the proceeding that was legally cognizable.</p> <p>3. In an action of assumpsit to recover on a book account for goods sold and delivered,'the defendant will not be permitted to set up by way of set-off a claim for certain discounts alleged to have accrued under a prior contract between the parties, where it appears that the subject matter of the claim advanced by way of set-off had been passed upon adversely to the defendants’ contention by arbitrators, to whom the same question had been submitted, in a previous proceeding brought by the present defendants against the plaintiff, under an agreement that such award should be final.</p>

<p>Appeal, No. 108, October T., 1913, by plaintiff, from judgment of C. P. Allegheny Co., June T., 1911, No. 136, for defendant non obstante veredicto in case of James A. Craig v. Pennsylvania Railroad Company, a corporation.</p> <p>Trespass to recover damages for personal injuries. Before Shafer, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $1,800. The court subsequently entered judgment for the defendant non- obstante veredicto. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for the defendant non obstante veredicto.</p>

<p>Appeal, No. 131, Oct. T., 1913, by The Borough of Carriek, from decree of C. P. Allegheny Co., Dec. T., 1890, No. 998, in equity modifying a former decree in case of The Manufacturers Natural Gas Company v. The Birmingham & Brownsville Macadamized Turnpike Road Company.</p> <p>Petition to compel plaintiff to comply with the terms of a former decree. Before Carnahan, J.</p> <p>Prom the record it appeared that in 1886 a gas company, later merged into the plaintiff gas company, had contracted with a turnpike company to furnish forty lamps for the illumination of the turnpike and to supply such lamps with gas in consideration of the grant of a right of way over the turnpike. Thereafter plaintiff company brought a bill against the defendant to compel the defendant to introduce burners of an improved type in the lighting of the road, in which proceeding a decree was entered on October 8, 1892, wherein the rights and duties of the plaintiff and defendant were more fully and accurately defined.</p> <p>The county commissioners of Allegheny County subsequently purchased a portion of the turnpike including so much thereof as traversed the Borough of Carriek. The Borough of Carriek under the borough acts was charged with the duty of keeping open, taking care of and protecting so much of the turnpike as passed through the borough. From the time of the entry of the decree in 1892 until the time of the filing of the bill the plaintiff company continued to keep its pipes in the roadway and furnished gas for the lights provided for in the decree, twenty-three of which were located within the limits of the borough.</p> <p>On December 16, 1912, the gas company took down and discontinued the lamps in use under the decree without any arrangement or substitution having been agreed upon, after repeated unsuccessful attempts on its part to reach some satisfactory agreement with the borough relating to the installation of Welsbach burners on the lamps in use. The Borough of Garrick thereupon petitioned for an order on the gas company to compel it to light the turnpike in accordance with the decree then in force. The Borough of Garrick for other lights used by it had a contract with the plaintiff company, by which one Welsbach light was furnished with gas at the rate of $3.50 a year and the cost of maintaining the lamp amounted to $16.50. The cost to the borough of maintaining the lights theretofore in use amounted to $2.74 a year, so that the Welsbach burners, if maintained by the borough, would cost the borough $13.76 per light more than the lamps in use prior to December 16,1912. It appeared that a Welsbach burner consumes approximately one-twentieth of the gas required for the lamps previously in use and all of this gas would be saved by the plaintiff company.</p> <p>The trial judge on final hearing entered a decree which was in part as follows:</p> <p>1. That Welsbach burners, such as are in common use for street lighting, be installed in place of the burners and devices described in the decree entered in this case on October 8,1892.</p> <p>2. That instead of twenty-three lights, the Manufacturers Light and Heat Company shall furnish free gas to thirty-three (33) lights upon that portion of the Birmingham and Brownsville road which is in Carfick Borough, to be Used through Welsbach burners, the additional ten lights to be at such points as the borough shall select and designate; and that the borough shall, at its own cost and expense, maintain and care for said thirty-three lights, including the lamp posts, lamps and burners, and the lighting and extinguishing of the same, said lights to be lighted and extinguished at the time other similar lights in said borough are lighted and extinguished.</p> <p>3. That the location of said thirty-three (33) lights on said Brownsville road within said borough may be changed from time to time by the borough, but at its own expense.</p> <p>4. That said decree entered on October 8, 1892, is hereby amended so as to correspond herewith and conform hereto.</p> <p>5. That each of the parties shall pay its own witnesses, and all other costs shall be equally divided between the parties.</p> <p>Exceptions to various findings of fact and law and to the decree of the trial judge were dismissed by the court. The Borough of Carrick appealed.</p> <p>Errors assigned were in dismissing various findings of fact and conclusions of law and in modifying the decree.</p>

<p>Appeal, No. 215, Oct. T., 1913, by Catherine White, from judgment of C. P. Allegheny Co., July T., 1911, No. 642, on verdict for plaintiff in case of Rochester Trust Company v. Catherine White, Lessor, and A. H. Edwards, Lessee.</p> <p>Ejectment for the recovery of lands in Allegheny County. Before Frazer, P. J.</p> <p>The opinion of the Supreme Court' states the facts;</p> <p>Verdict for plaintiff by direction of the court for the lands described in the writ and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were answers to points, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 243, Oct. T., 1913, by defendant, from decree of O. P. Allegheny Co., July T., 1912, No. 1233, In Equity, for plaintiff on bill 'in Equity for discovery and for an accounting in case of Willis S. Johnson, trading as Joseph S. Finch and Company v. David G. Stewart and J. A. A. Geidel, Co-partners trading as D. G. Stewart and Geidel.</p> <p>Bill in equity for discovery and for an accounting. On final hearing, Swearingen, J., filed the following opinion:</p> <p>This bill was filed to compel an accounting by the defendants for the proceeds of insurance collected by them for a fire in their elevator, in which a quantity of malt belonging to the complainant was destroyed. He was not named as a party in the contract of insurance, but he claimed that he was intended to be protected thereby.</p> <p>From the evidence, we find the following:</p> <p>FINDINGS of fact.</p> <p>1. David G. Stewart and J. A. A. Geidel, the defendants, are and were, at the times the matters and things occurred, of which complaint is herein made,......co-partners, trading under the firm name of D. G-. Stewart and Geidel, and engaged in the business of receivers and shippers of grain, mill feed and hay, in connection with which business they were the owners and operators of a grain elevator, situated on West Carson street, in the City of Pittsburgh, and known as the “Iron City Elevator,” where they customarily held on storage grain and other merchandise, as bailee and in trust for various owners.</p> <p>2. October 18, 1911, the complainant purchased from George Bullen and Company, of Chicago, 111., a carload of malt, and ordered the same consigned and shipped to said Iron City Elevator, Pittsburgh, Pennsylvania. The car was delivered by the Pittsburgh, Cincinnati and St. Louis Railroad to the defendants, at the Iron City Elevator, on October 25,1911. Said malt remained in said elevator until November 8, 1911. At the time of said delivery of the malt, the defendants did not know that the complainant was the owner thereof, and they never were informed that he claimed to be the owner until November 14, 1911. The defendants did know that the malt did not belong to them.</p> <p>3. On November 8, 1911, the said Iron City Elevator, together with its contents, and including the said malt which belonged to the complainant, was destroyed by fire. Immediately before the fire, the complainant’s malt was of the reasonable market value of $1.29 per bushel, or of a total value of $1,560190.</p> <p>4. At the time of said fire, there were outstanding and in force, in favor of the defendants, policies of insurance, in the total sum of at least $24,000, issued by various companies in various amounts. Each of said policies contained the following clause, descriptive of the subject matter of the insurance:</p> <p>“On merchandise of every description incidental to the business of the assured, consisting chiefly of grain, grain products, country produce, baled hay and straw, sacks, bags and supplies, tbeir own or held by them in trust or on commission or consignment or sold but not removed, all while contained in the iron-clad building occupied as elevator, situate on West Carson street, Nineteenth Ward, Pittsburgh, Pa. Other insurance permitted. Privilege to use natural gas and electricity and to operate at night.”</p> <p>5. November 14, 1911, prior to the expiration of the period for filing proofs of loss by the defendants, under the policies of insurance aforesaid, and prior to the adjustment of the loss, and before any amounts had been agreed upon or paid to the defendants by any of said insurance companies, the complainant addressed the following letter to the defendants:</p> <p>“Gentlemen:</p> <p>“We represent Joseph S. Finch and Company and Schomaker and Company, both of this city, who had certain property in the Iron City Elevator at the time it, together with its contents, was partially destroyed by fire on last Wednesday morning. The following is a description of the property so owned by our respective clients:</p> <p>“Joseph S. Finch and Company, one car malt,</p> <p>approximately valued at $1,500.00</p> <p>“Schomaker and Company, one car rye in</p> <p>sacks, approximately valued at $1,000.00</p> <p>“We are informed that the policies of insurance covering the grain and other merchandise in the elevator at the time of fire were so worded as to cover said property, whether owned by you, or held by you in trust, or on commission or on consignment. The property of our clients above mentioned was, at the time and place aforesaid, held by you in trust or on consignment, and our clients are entitled to the protection of those policies, and hereby adopt the same, and claim the right to a proportionate part of the proceeds, measured by the amount and value of their property. We therefore beg to notify you to include such property in your proofs of loss, and to hold the aforesaid proportionate part of the proceeds of the insurance in trust for and to the use of our clients. If you neglect to do this and loss results to our clients, we shall hold you therefor.</p> <p>“Yours very truly,</p> <p>“Blakeley & Calvert,</p> <p>“By Donald Thompson.”</p> <p>November 22, 1911, the following reply was sent by the defendants:</p> <p>“Messrs. Blakeley & Calvert,</p> <p>“Pittsburgh, Penna.</p> <p>“Gentlemen:</p> <p>“We acknowledge receipt of your favor of the 14th, relative to grain of Joseph S. Pinch & Co. and Schomaker & Co., stored in the Iron City Elevator. In reply will state that neither of these parties had any arrangements with us, whereby their grain was covered against loss by fire under cur policies.</p> <p>. “Very truly yours,</p> <p>“D. G. Stewart & Geidel.” Prior to the aforesaid correspondence, a letter was delivered to the Pittsburgh agent of each of the insurance companies mentioned in Findings of Fact 4, of which the following is a copy of one of them:</p> <p>“November 11, 1911.</p> <p>“German-American Insurance Co. of Penna.,</p> <p>“316 Fourth Ave.,</p> <p>“City.</p> <p>“Gentlemen:</p> <p>“On behalf of Joseph S. "Finch and Company and Schomaker and Company, we hereby notify you that our clients are the owners of the following property contained in the iron-clad building occupied as a grain elevator by D. G. Stewart and Geidel, situate on West Carson street in the City of Pittsburgh, Pennsylvania: “Joseph S. Finch & Co., one car of malt, approximate value, $1,500.00</p> <p>Opinion of Court below. [243 Pa.</p> <p>“Schomaker & Co., one car of rye in sacks,</p> <p>approximate value, $1,000.00</p> <p>“Being informed that it is the intention of the insurance companies interested to make sale of the undestroyed property on the premises aforesaid, we desire to notify you that you will sell or otherwise dispose of the malt and rye above mentioned, or the undestroyed portion thereof, at your peril and that if the same is disposed of that we shall look to you to reimburse our clients for the reasonable value thereof.</p> <p>“We also take this opportunity to notify you that our clients claim the right to receive, and hereby make demand for, the proceeds of whatever insurance was placed on the property contained in the elevator by the owners thereof.</p> <p>“Our clients stand ready to prove to your satisfaction their title to the property mentioned, at any time and place you may require.</p> <p>“Yours very truly,</p> <p>“Blakeley & Calvert.”</p> <p>6. The defendants settled with all of said insurance companies, and the amount of said insurance has been paid. But the defendants did hot claim payment from said insurance companies for the complainant’s carload of malt, and the same was not considered in the adjustment of insurance which was finally made.</p> <p>7. The defendants received and stored the complainant’s carload of malt, in like manner as they received and stored other merchandise under similar circumstances, and there was no express contract between them, relative thereto. He did not notify, the defendants that he was the owner thereof until after the loss occurred, nor did he at any time notify them to insure his property; neither did he effect any insurance thereon himself.</p> <p>8. The defendants have refused to disclose to the complainant the exact amount or value of the grain and other merchandise contained in the Iron City Elevator at the time of the fire, the exact amount of the insurance thereon, and the amount paid by the insurance companies to the defendants in adjustment of the loss.</p> <p>When the defendants accepted and stored the complainant’s malt, in the manner described in the Findings of Fact, an implied contract resulted, whereby they became his bailees, although they were not aware that he was the real owner. This malt was a “grain product” and was therefore merchandise “incidental to their business,” which was that of conducting an elevator, “where they customarily held on storage grain and other merchandise, as bailee and in trust for various owners.” Undoubtedly, the complainant’s malt was merchandise of the kind that was to be covered by the clause in the policies, set out in Findings of Fact 4. The question then is whether or not such merchandise, received and stored as was the complainant’s malt, was intended, at the time the aforesaid policies were issued, to be covered thereby. That intention must have existed at that time; otherwise a party situated as is the complainant cannot avail himself of the insurance: Steele v. Insurance Co., 17 Pa. 290.</p> <p>It is clear that the defendants could have made a contract of insurance, whereby merchandise of an owner, which was subsequently received and stored, would be covered: Siter v. Morrs, 13 Pa. 218; Home Ins. Co. v. Balto. Warehouse Co., 93 U. S. 527.</p> <p>“It was lawful for the plaintiff to insure in its own name goods held in trust by it, and it can recover for their entire value, holding the excess over its own interest in them for the benefit of those who have intrusted the goods to it”: California Ins. Co. v. Union Express Co., 133 U. S. 387.</p> <p>The bailor may lawfully adopt the benefit of the insurance, previously effected by the bailee, if he notify the latter before proof of loss is made: Johnston v. Abresch Co., 123 Wis. 130.</p> <p>If, therefore, the defendants intended, when the policies of insurance were issued, that merchandise, subsequently received as was complainant’s malt, should be covered thereby, he can avail himself thereof; and the question of intention is one of evidence. In this case, the defendants and the insurance companies have reduced their contract to writing. They have particularly described the merchandise, against the loss of which the insurance was effected, see Findings of Fact 3. This writing is in no wise ambiguous. Accordingly we ruled at the trial that parol testimony was not admissible to alter, explain or vary the written contract. We can perceive no reason for holding that ruling erroneous. In other words, the intention of the parties* at the time the insurance was effected, must be ascertained from the writing itself.</p> <p>The defendants were engaged in a quasi public business. A large part of it was to receive and store the grain, grain products, etc., of various owners, for compensation. Hence the complainant’s malt, received and stored in the manner stated, was merchandise “incidental to the business” of the defendants. They were not the owners, but they held it as bailees for him, in the capacity of trustees. Thus their relation to the complainant was within the very letter of the policies — the malt was “held by them in trust” for him. In addition, this malt was consigned to the defendants, and they received and stored it as the consignees thereof. It was held by them “on consignment,” a well-understood commercial expression, and one also used in these policies. Thus again the relation of the defendants to the complainant is brought within the letter of the contract. The intention, as disclosed by the language of this writing, is therefore plain. It needs neither interpretation nor construction, and the meaning of the words used is not contrary to the spirit of the contract. The obvious purpose was to cover a stock of merchandise which, from the nature of the defendant’s business, was a shifting one. It was a stock which might be greater at one time and less at another. The contract of insurance shows this. We cannot, therefore, sustain the contention of the defendants, that only those shippers were to be protected, who might make arrangements with them relative to insurance. No such distinction is made in the written instrument. To sustain that contention we would be obliged to resort to testimony contradictory of the writing. This we cannot do. It is not what the parties might have actually meant that must guide us. The inquiry is, what is the legal meaning of the language used in the writing? This is the rule which controls us in the construction of this contract.</p> <p>We therefore conclude that the only meaning, which can be ascribed to the clause of the policies under consideration, is that a party situated as the complainant, was intended to be protected thereby. If we are correct in this conclusion, then the defendants owed the complainant the duty of including his property in their proofs of loss, or at least of giving him the opportunity of making his claim. Having refused to recognize his rights at all and having settled with the insurance companies without regard to him, the defendants, as his bailees, must account to him.</p> <p>CONCLUSIONS OF LAW.</p> <p>From the foregoing, we reach the following conclusions of law:</p> <p>1. The only contract which existed between the complainant and the defendants was that which is implied from the circumstances of the receipt and storage of said malt. They thereby became bailees of the malt for him, the true owner, even though they were not aware that he was the real owner.</p> <p>2. The descriptive clause in the insurance policies, set out in Findings of Fact 4, embraced grain and grain products held by the defendants as bailees, and operated to extend the protection of the policies to the complainant’s malt. The defendants had an insurable interest in this malt and the policies were valid and enforceable by them against the insurance companies.</p> <p>3. The complainant, by his written notice to the defendants after the fire, became entitled to his proportionate share of the proceeds of the policies mentioned in Findings of Fact 4; and the defendants, in adjusting their loss with the insurance companies without including and making claim for the complainant’s malt, committed a breach of the contract, which makes them responsible to him for the amount which he ought to have received.</p> <p>4. The complainant should have received from the proceeds of the said policies of insurance such proportion of the total amount, that would have been paid to the defendants had the complainant’s malt and all other merchandise in like situation been included in the adjustment, as the value of complainant’s malt, at the time of the fire, bore to the value of all other merchandise covered by the insurance. In arriving at the total value of the merchandise covered by the insurance, there should be taken into consideration, in addition to the merchandise which was included in the proofs of loss and considered in the adjustment, only such other merchandise as was in like situation with the complainant’s, that is, whose owners adopted the benefit of the insurance and claimed their share thereof.</p> <p>5. The defendants should discover and disclose to the complainant:</p> <p>(1) The amount and value of the merchandise contained in the Iron City Elevator at the time of the fire, mentioned in Findings of Fact 3, and by whom and how the same was held or owned.</p> <p>(2) The number and total amount of the policies of insurance covering such merchandise at the time of said fire.</p> <p>(3) The amounts and values of the various lots of merchandise included in the proofs of loss and considered in the adjustment.</p> <p>(4) The amounts paid or agreed to be paid to the defendants by the several insurance companies in adjustment and settlement of the loss.</p> <p>6. The defendants should account to the complainant for his proportionate share of the proceeds of the insurance, computed upon the basis outlined in the Fourth Conclusion of Law.</p> <p>The costs should be paid by the defendants.</p> <p>The trial judge entered a decree in accordance with the prayers of the bill.</p> <p>Exceptions to various findings of fact and law and the decree of the court were dismissed. Defendant appealed.</p> <p>Errors assigned were in dismissing the exceptions. _|</p> <p>The defendants did not intend to insure interests subsequently arising at the time of the taking out of the insurance : Steele v. Insurance Co., 17 Pa. 290.</p> <p>The policy does not include all of the merchandise in the warehouse and therefore proof must be had outside of the policy itself to show that the plaintiff’s goods were intended to be insured at the time of the taking out of the policies: Richardson v. Home Insurance Co., 47 N. Y. Superior Ct. 138; Lee v. Adsit, 37 N. Y. 78; DeForest v. Fulton Fire Ins. Co., 1 Hall (N. Y.) 94 at 151; Catlett v. Pacific Ins. Co., 1 Wendell (N. Y.) 561; DeBolle v. Pa. Ins. Co., 4 Whart. 68; Reitenbach v. Johnson, 129 Mass. 316; Pittman v. Harris, 24 Tex. Civil Appeal Reports 503.</p> <p>The terms of the written contract in this case are not conclusive of the meaning and intention of the parties to the policies of insurance in this proceeding: Hankinson v. Vantine, 152 N. Y. 30, at 31; Folinsbee v. Sawyer, 157 N. Y. 196; Krider v. Lafferty, 1 Wharton 303; Com. v. Contner, 21 Pa. 266; Selser Est., 141 Pa. 529; Galbraith v. Bridges, 168 Pa. 325; Reynolds v. Mazner, 2 Iredell (Law) 30; Strader v. Lambeth, 47 Ky. (7 B. Monroe) 589; McMaster v. Ins. Co. of N. A., 55 N. Y. 222.</p> <p>The wording of the policy is unambiguous and necessarily includes plaintiff’s property: Siter v. Morris, 13 Pa. 218; Thomas v. Cummiskey, 108 Pa. 354; Roberts v. Fireman’s Insurance Co., 165 Pa. 55; Pittsburgh Storage Co. v. Insurance Co., 168 Pa. 522; Lumberman’s Exchange v. Insurance Co., 183 Pa. 366; McDonald v. Williams, 18 Pa. D. R. 561; Home Insurance Co. v. Baltimore Warehouse Co., 93 U. S. 527; California Insurance Co. v. Union Compress Co., 133 U. S. 387; Johnson, et al., v. Campbell, 120 Mass. 449; Reitenbach v. Johnson, et al., 129 Mass. 316; Fish v. Seeberger, 154 Ill. 30; Firemen’s Fund Insurance Co. v. Western Refrigerating Co., 55 Ill. Appeals 329; Boyd v. McKee, 99 Va. 72; Hough v. People’s Fire Insurance Co., 36 Md. 398; Stillwell v. Staples, 19 N. Y. 401; Waring v. The Indemnity Fire Ins. Co., 45 N. Y. 606; Lowell Mfg. Co. v. Safeguard Fire Insurance Co., 88 N. Y. 591; Utica Canning Co. v. Home Insurance Co., 132 N. Y. Appellate Div. 420; Symmers v. Carroll, 134 N. Y. Supp. 170; Hagan v. Insurance Co., 186 U. S. 423; Johnston v. Abresch Company, 123 Wisconsin 130; Lucas v. Insurance Company, 23 West Virginia 258; Ferguson v. Pekin Plow Company, 141 Missouri 161; Bradley v. Brown, 78 Nebraska 836.</p> <p>Extrinsic evidence was inadmissible for the purpose of showing that plaintiff’s property was not included: Hough v. People’s Fire Insurance Co., 36 Md. 398; Lucas v. Insurance Co., 23 West Va. 258; Wodock v. Robinson, 148 Pa. 503; Minneapolis, St. P. & S. S. M. Ry. Co. v. Home Insurance Co., 55 Minn. 236; Current v. Muir, 99 Min. 1; Johnston v. Abresch Co., 123 Wis. 130; Ferguson v. Pekin Plow Co., 141 Mo. 161; Lancaster Mills v. Merchants Cotton Press Co., 89 Tenn. 1,</p> <p>With or without the application of the parol evidence rule the record contains nothing that would justify the court in setting aside the written policies: Zook v. Penna. R. R. Co., 206 Pa. 603; Miller v. Piatt, 33 Pa. Superior Ct. 547; Lancaster v. Flowers, 208 Pa. 199; Mulholland’s Est., 224 Pa. 536; Pottsville Mutual Fire Insurance Company v. Minnequa Springs Improvement Company, 100 Pa. 137; Freedman v. Insurance Company, 182 Pa. 64; Clymer Opera Company v. Insurance Company, 50 Pa. Superior Ct. 645; Beatty v. Safe Deposit & Title Guaranty Co., 226 Pa. 430; Cochran v. Pew, 159 Pa. 184; Fry v. National Glass Co., 207 Pa. 505.</p>

<p>Appeal, No. 245, Oct. T., 1913, by plaintiff, from judgment of C. P. Allegheny Co., Fourth Term, 1907, No. 195, on verdict for defendant in case of John A. Martin v. Borough of West Liberty.</p> <p>Trespass to recover damages for injury to real property. Before Evans, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The jury found a verdict for defendant upon which judgment was entered. Plaintiff appealed.</p>

<p>Contracts — Building contracts — Defect in soil — Reconstruction —Plans and specifications — Architects—Responsibility of architects — Construction of contract — Intention.</p> <p>1. Where the soil upon which a structure is being erected under a building contract is insufficient to support the building, and it is impossible to erect a substantial building there on the foundation supported by the footings provided in the drawings, the rule of impossibility of completion, for which the contractor is not responsible, is applicable.</p> <p>Murphy v. National Bank, 184 Pa. 208, followed.</p> <p>2. Where the agreement between the parties to a building contract does not provide simply that the contractor shall furnish certain materials and do certain work in the construction of the building upon a certain lot of ground, in accordance with definite plans of construction, but gives to the architect employed by the owner to prepare the plans and specifications and to supervise the construction plenary power and control over the contractor, the architect’s judgment being final as to the quality and quantity of the material and work authorized, the meaning of the plans and specifications and their sufficiency for the erection of the building and his authority complete to make any changes in the work he deemed desirable and to change the plans and specifications at his pleasure, the contractor being compelled to submit and erect the building accordingly, with the provision that the owner could discharge the contractor if he failed to comply with the architect’s orders, the rule of absolute liability of the contractor for defective plans and specifications and insufficiency of the soil to support the building is not applicable.</p> <p>3. Where in such a ease the specifications clearly contemplate that the soil tests should be made by the architect and for the purpose to enable him to determine the sufficiency of the soil to sustain the building on the foundations with the footings required by the specifications and drawings, and the contractor was without authority to make such tests, or to make changes in the width or depth of the footings to insure a proper foundation, it is the duty of the architect to make the proper soil tests, and the responsibility for failure for the performance of this duty is chargeable to him and not to the contractor.</p> <p>4. In such case a provision in the specifications that the eon-tractor should examine the plans and specifications before signing the contract, and that anything to which he should not object, he would guarantee as being - approved by him, is not to be construed as an approval of the character of the soil upon which the building was to be constructed.</p> <p>5. In an action by a contractor to recover the cost of tearing down and rebuilding a wall which was part of a hospital building in the course of construction by the contractor, a verdict for the plaintiff was sustained where it appeared that the wall fell because the soil on the defendant’s lot when excavated to the width and depth required by the contract was not sufficient to sustain the building to be placed upon it; that by the terms of the contract the work and materials were to be furnished under the supervision of the architect, who would change the plans and specifications at his discretion and require the contractor to make whatever alterations should be necessary to conform to such changes; that the soil tests were to be made by the architect and that the contractor had no authority to make them or to make any change in the construction without the express direction of the architect; that the architect after making certain soil tests had considered the soil sufficient to support the wall and had refused to allow any changes to be made while it was being erected, although notified by the contractor that the footing course should be widened.</p>

<p>Appeal, No. 247, Oct, T., 1913, by plaintiff, from judgment of C. P. Allegheny Co., May T., 1911, No. 572, for defendant non obstante veredicto in the case of Michael Ford v. Hubbard & Company, a corporation.</p> <p>Trespass to recover damages for personal injuries. Before Macfarlane, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,000. Judgment was subsequently entered for the defendant non obstante veredicto. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for the-defendant non obstante veredicto.</p>

<p>Negligence — Municipalities—Bridges—Evidence—Barmless error — Infant—Parent—Contributory negligence.</p> <p>1. In an action of trespass brought by a mother, and her infant daughter, to recover damages for personal injuries sustained by the infant in consequence of a fall caused by defects in the railing of a foot bridge against which the child had leaned, where it appeared that the bridge was within the city limits and connected two city streets; that it had been used by the public for more than twelve years and that it had been rebuilt by the city shortly after the accident, the admission of testimony that certain work upon and about the bridge had been done by workmen in white .uniforms, who were described by the witness as “white wings,” in order to show control of the bridge by the city was, not ground for reversal where there was other evidence to establish a prima facia case for the plaintiff and this evidence was not contradicted by the defendant.</p> <p>2. The court made no error in such case in refusing to instruct the jury that the mother was guilty of contributory negligence in permitting the child to cross the bridge, where it appeared that the child had been sent on an errand by the mother in the performance of which the accident happened; that the mother stated that though she had known that the floor of the bridge was in need of repair, she had observed nothing with respect to the railing and where there was nothing in the case to bring home to the knowledge of the mother the defect which caused the accident.</p> <p>Damages — Items of damage — Parent and child — Loss of companionship — Charge to fury. '</p> <p>3. The right to recover for loss of companionship is confined to cases where a husband sues for injuries to his wife; the law does not recognize loss of companionship as an element of damage in any other relation.</p>

<p>Appeal, No. 252, Oct. T., 1913, by defendant, from judgment of C. P. Allegheny Co., May T., 1911, No. 264, for plaintiff in case of Emma Gross v. City of Pittsburgh.</p> <p>Trespass to recover damages for personal injuries. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,500, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing binding instructions for the defendant and in refusing to enter judgment for the defendant non obstante veredicto.</p>

<p>Contracts — Building contracts — Arbitration clause — Architect as arbitrator — Matters affecting architects themselves — Questions for the jury — Evidence.</p> <p>1. The parties to- a building or construction contract may legally provide therein that disputes arising out of the contract shall be submitted for decision to the architect or engineer and that his-conclusion or judgment shall be a final adjudication of the questions submitted.</p> <p>2. Arbitration clauses in building contracts, however, refer to questions arising between the contractors and owners and not to' questions that concern the performance of duties by the architects' themselves. If questions arise between the contracting parties not included in the arbitration clauses, or if the questions raised relate to failure or dereliction in the performance of duties by the architects themselves, the right to have these matters passed upon by a jury cannot be denied upon the ground of failure to arbitrate:</p> <p>3. In an action by a contractor against an owner upon a building contract, it appeared that the contract contained an embracing arbitration clause whereby practically all disputes were to bé re-ferred to the architects. The plaintiff made out a prima«facie case for recovery which was met in part by the defendant’s introducing an award of the architects under the arbitration clause charging the plaintiff with delay in completion of the work in the sum of $12,000. The court below admitted the award, of the architects in evidence and excluded an offer by plaintiff to show that the delay in completing the building was chargeable chiefly to the delay of the architects in furnishing certain necessary detailed drawings.. Held, (1) that the award of the architects was properly admitted in evidence, and (2) that the court committed error in excluding the plaintiff’s offer to show that the delay was the fault of the architects.</p>

<p>Appeal, No. 75, Oct. T:; 1913, by defendants, from decree of O. P. Allegheny Co., July T., 1912, No. 122, for plaintiffs on bill in equity in case of Lucy S. DeWitt, Administratrix, etc., of the Estate of Ira DeWitt, deceased, v. The Keystone National Bank of Pittsburgh, Penna., and A. M. Stevenson, Administrator of the Estate of William S. Stevenson, deceased.</p> <p>Bill in equity for an accounting. Before Macfar-LANÉ, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court, on final hearing, awarded the amount of the deposit in question to the complainant, with interest, and refused to allow counsel fees to the defendant bank. Defendant appealed.</p> <p>Errors assigned, among others, were in awarding interest on the deposit and in refusing to allow counsel fees.</p>

<p>Negligence — Damages—Suit by husband and wife for injuries to wife — Items of recovery — Expense of employing servant for wife— Evidence.</p> <p>1. In an action by husband and wife to recover damages resulting from an injury to the latter through being struck by defendant’s taxicab, in which a clear case of negligence was made out, the plaintiff set out in the statement of claim that the wife had been knocked down and severely wounded and bruised in her limbs, body and face, and that her nervous system had received a severe shock, and that she had been permanently injured. Held that, under this statement, the wife was properly permitted by the trial judge to answer a question in relation to the suffering and inconvenience caused by her injury, followed by proof that her condition was the direct result of the injury to her nervous system which was alleged in the statement of claim.</p> <p>2. In such an action, the expense of employing a servant for household work which the wife cannot perform because of her injury, is an item of loss for which the husband can recover.</p> <p>Negligence — Excessive damages — Seduction by Supreme Court —Act of May 20,1891, P. L. 101.</p> <p>3. The exceptional power conferred on the Supreme Court to grant a new trial because a verdict is excessive will not be exercised except in extreme cases, where the injustice of allowing an excessive verdict to stand is so manifest as to clearly show a failure of the court in which the case was tried to properly exercise its discretion.</p>

<p>Appeal, No. 248, Oct. T., 1913, by plaintiff, from judgment of C: P. Allegheny Co., July T., 1912, No. 2827, for defendants on demurrer to statement in case, of Marcella C. Sweeney v. Samuel M. Houston and Andrew C. Houston.</p> <p>Assumpsit on a contract.</p> <p>Plaintiff’s statement was as follows:</p> <p>Marcella C. Sweeney, of the City of Pittsburgh, plaintiff in the above-entitled case, brings this her action of assumpsit against Samuel M. Houston and Andrew C. Houston, defendants herein, upon a cause of action whereof the following is a statement:</p> <p>That on or about the first day of July, 1906, the estate of Ross P. Houston, deceased, Thomas Sweeney and Frank George were indebted and liable, individually and as*, a ■ partnership known as “Thomas Sweeney & Co.,” to plaintiff on a note in the sum of Four Thousand ($4,000.00) Dollars, a true and correct copy of which note is attached hereto and made part hereof, marked “Exhibit A,” the same being given for money lent to said partnership.</p> <p>That on or about said date, defendants herein purchased and took over the interest of said Eoss P. Houston Estate in said partnership, and promised and agreed in consideration of the transfer of said interest to them, that they would assume and pay all indebtedness or liability of said Eoss P. Houston or his estate on account of or arising from the partnership transactions of said “Thomas Sweeney & Co.”</p> <p>That defendants paid the interest on said indebtedness to July 1, 1910, but have failed and refused to pay any part of the principal debt or any interest thereon since said date.</p> <p>Wherefore plaintiff brings this action to recover the said sum of Four Thousand ($4,000.00) Dollars with interest as aforesaid.</p> <p>Attached to the statement was the following note: “$4,000.00 Pittsburg, Pa., Jan. 2,1905.</p> <p>“On demand after date we promise to pay to the order of Marcella C. Sweeney Four Thousand ($4,000.00) Dollars at 4906 Cypress St., without defalcation, for value received.</p> <p>“Thos. Sweeney & Co.”</p> <p>“No. 1 Due”</p> <p>Upon a demurrer to the statement the court entered a judgment sustaining the demurrer. Plaintiff appealed.</p> <p>Error assigned was in sustaining the demurrer.</p>

<p>Appeal, No. 258, Oct. T., 1913, by the Chiropractors’ Association of Pennsylvania, from order of C. P. Allegheny Co., Jan. T., 1913, No. 2247, refusing application for a charter.</p> <p>Application for a charter. Before Davis, J.</p> <p>The petition for the charter contained the following paragraphs:</p> <p>1. The name of the proposed corporation is “Chiropractors’ Association of Pennsylvania.”</p> <p>2, The purpose for which the corporation is formed is to foster and encourage the study of the science of chiropractic and to popularize the same in the State of Pennsylvania, through provisions for public lectures, conferences and the distribution of books and literature treating upon said subject, to maintain a central organization that will keep those interested in said science in Pennsylvania abreast of all research work and of the development of said science in the various states and countries, and to encourage co-operation among those learned in chiropractic for its good as well as for the good of all those concerned or interested therein.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court refused to approve the charter.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 257, Oct. T., 1913, by defendants, from decree of C. P. Allegheny Co., June T., 1913, No. 617, in case of Robert H. Hartley v. Herman H. Langkamp and John H. Elder.</p> <p>Bill in equity to annul a deed and to enforce reconveyance. Before Shaper, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entered a decree in accordance with prayer of the plaintiff’s bill. Defendants appealed.</p> <p>The only real party in interest is absent from the case and the court is therefore without jurisdiction: Williams v. Hankhead, 86 U. S. 563; Barney v. Baltimore, 73 U. S. 280; Mallow v. Hinde, 25 U. S. 193; Elmendorf v. Taylor, 23 U. S. 152; Gloninger v. Hazard, 42 Pa. 389.</p> <p>It was not necessary to make defendant’s grantee party to the bill: Sedgwick v. Cleveland, 7 Paige Ch. 287; Sweet v. Parker, 22 N. J. Eq. 453; Vetterlein v. Barnes, 124 U. S. 169; McArthur v. Scott, 113 U. S. 340; Irwin v. Keene, 3 Whart. 347,</p>

<p>Appeal, No. 264, Oct. T., 1913, by plaintiff, from judgment of C. P. Allegheny Co., Jan. T., 1911, No. 795, for defendant non obstante veredicto in case of Western Savings and Deposit Bank of Pittsburgh v. John Sauers.</p> <p>Assumpsit on promissory note. Before Cohen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The jury found a verdict for plaintiff for $6,825.61. The court subsequently entered judgment for defendant non obstante veredicto. Plaintiff appealed.</p> <p>Error assigned, among others, was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 201, Oct. T., 1913, by defendant, from judgment of C. P. Allegheny Co., Second T., 1911, No. 528, on verdict for plaintiff in case of Walter Reed v. Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Brown, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff of $3,500, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

Appeal, No. 266, Oct. T., 1913, by defendant, from judgment of C. P. Allegheny Co., May T., 1910, No. 75, on verdict for plaintiff in case of Harvey S. Posey v. National Bank of Western Pennsylvania. Trespass to recover damages for personal injuries. Before Ford, .J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $2,334.35 and judgment thereon. Defendant appealed.

<p>Appeal, No. 12, Oct. T., 1913, by defendant, -from judgment of C. P. Allegheny Co., July T., 1912, No. 3099, for plaintiff for want of a sufficient affidavit of defense in case of Gilbert N. McMillan v. Harry Davis.</p> <p>Assumpsit on promissory note. Buie for judgment for want of sufficient affidavit of defense. Before Davis, J.</p> <p>The plaintiff was the payee of a promissory note for $7,500, and brought this action against the defendant as endorser, to recover the amount of the note.</p> <p>The defendant alleged as matter of defense the total failure of consideration in the note between the maker and payee. The affidavit of defense alleged that the note in suit was endorsed by the defendant and another and delivered to the plaintiff under the terms of certain agreements, from which it appeared that the note was given by the Star Starter Company as part of the purchase money for a patent, and that the assignment of the letters patent was delivered to the White Mountain National Bank of Gorham, N. H., in escrow, and that the escrow agreement contained the following stipulation:</p> <p>“In the event that there shall be a default in the payment of any of the said promissory notes when the same shall become due, the said assignment shall be returned by the said White Mountain National Bank to Gilbert N. McMillan.”</p> <p>The defendant construed the agreements as an option which, as a matter of course, terminated on the default in the payment of the note in question. The defendant also alleged that the Star Starter Company, party to the agreement, had exercised the right (if an option) to end the agreement.</p> <p>After the appeal in this case was taken, the judgment of the lower court in McMillan v. Davis, No. 341, Feb. T., 1913, was affirmed by the Superior Court in 54 Pa. Superior Ct. 154, from which judgment the Supreme Court refused to allow an appeal.</p> <p>The present action was on a note given in the same transaction and under the same circumstances, and the same questions of law were involved.</p> <p>In McMillan v. Davis, 54 Pa. Superior Ct. 154, the opinion of the Superior Court, by Head, J., was as follows :</p> <p>“The agreement into which the parties entered was in no sense an option. It was a valid binding contract of purchase and sale from which neither party was at liberty to withdraw at his own pleasure. The defendant, having paid a substantial part of the purchase money in cash, and having given negotiable notes for the remainder of it, found in the fact of the delivery of the assignment to the escrow agent his security that when he paid the notes he would be in possession of the property he had purchased. The vendor could in no way have escaped the claim of the defendant to the ownership of the patent as soon as the conditions were complied with: Baum’s App., 113 Pa. 58; Booth v. Williams, 2 W. N. C. 504.</p> <p>“The vendor in turn needed some security that the notes which were to run for a considerable time afterward would be paid, and he found such protection in that portion of the agreement which gave him the privilege of withdrawing the assignment in escrow and reclaiming the possession of it on and after a default on the part of the defendant in his obligation to pay. When the defendant failed to pay the note sued on at maturity, he exercised no right reserved to him in his contract. He simply defaulted in the performance of an obligation enforceable at law. We think it plain that under the agreement he could not predicate of his own default his escape from the stress of an obligation which he had agreed to perform: Galey v. Kellerman, 123 Pa. 491; Wills v. Manufacturers’ Gas Co., 130 Pa. 222; Cape May Real Estate Co. v. Henderson, 42 Pa. Superior Ct. 1.</p> <p>“We are all of the opinion the affidavit filed by the defendant discloses no sound legal defense to the plaintiff’s claim and that the learned court below was therefore right in entering a judgment for the plaintiff.</p> <p>“Judgment affirmed.”</p> <p>The court made absolute plaintiff’s rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 269, Oct. T., 1913, by plaintiff, from judgment of C. P. Allegheny Co., Fourth T., 1908, No. 754, for defendant n. o. v., in case of John Flaherty v. McClintic-Marshall Construction Company.</p> <p>Trespass to recover damages for personal injuries. Before Cohen, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for |6,500.</p> <p>The court subsequently directed judgmeiit to be entered for the defendant non obstante veredicto. Plaintiff appealed.</p> <p>Error assigned was the order of the court..</p>

<p>Telegraph and telephone companies — Corporations—Contracts— Bight of telephone company to terminate — Mandamus—Answer—; Demurrer.</p> <p>1. In a proceeding against a telephone company for a mandamus to compel the defendant company to furnish its service to the relator under the terms of a contract, the petition averred and pet out a written contract, under which defendant rendered service for nine years when it terminated the contract and disconnected the line, in alleged violation of the contract and in unreasonable discrimination against relator. The answer filed admitted the contract, denied any discrimination, and averred that respondent had not for six years furnished service to any other customer under the particular form of contract or at the rate therein provided, and that “after due notice” respondent had terminated relator’s contract, and also that the contract “was never intended by the parties to be perpetual in its operation at the option of the relator.” The relator demurred to the answer. The contract itself provided for certain contingencies upon which it could be terminated at the option of the respondent, none of which were averred in the answer as the reason for discontinuing the service; provided for a certain rate to be paid during the term of one year, making no provision for an extension beyond that period, but showing an intention that should the line remain connected after the year, the service would continue until another contract was substituted. It provided also that “the subscriber may terminate the contract at any time after the first year by giving thirty days’ notice,” but contained no provision as to how the company might terminate the contract after the first year. The court below overruled the demurrer and entered judgment against relator. Held, no error.</p> <p>2. Such a contract will be construed to mean that after the first year the contract became one without time limit, which either party could terminate, the subscriber by giving thirty days’ notice and the company by giving “reasonable notice.”</p> <p>3. In such a case a construction which tends to perpetuate a. discrimination against the company’s other subscribers will be avoided, unless required by the language.</p>

<p>Brokers — Stock brokers — Purchase of stock on margin — Hypothecation by broker — Conversion.</p> <p>In an action by a stock broker to recover the balance due upon the purchase price of certain stocks purchased for the defendant, it appeared that, the defendant had given an order to the plaintiffs for the purchase of 500 shares of stock, which was accordingly done; that he Had paid part of the purchase price to the plaintiffs and they carried the shares as security for the remainder of the purchase price; that within a few days after the stock was purchased the plaintiffs hypothecated the shares along with other collateral. belonging to them as security for loans in excess of the amount due from the defendant; that later the plaintiffs received telegrams demanding the production of the shares in question and that the stock was redeemed and the plaintiff- presented it to defendant’s agent, demanding the remainder of the purchase price, and this not being forthcoming the stock was retained; that later the shares of stock pledged with the plaintiff were sold for a large loss. Reid, that the plaintiff was not entitled to recover.</p>

<p>Appeal, No. 55, Oct. T., 1913, by defendant, from judgment of C. P. Allegheny Co., Dec. T., 1910, No. 867, on verdict for plaintiffs in case of William M. Ebberts, Lula A. Ebberts and Adam R. Hays v. The Borough of Edgewood.</p> <p>Appeal from award of. viewers. Before Evans, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiffs of $1,860, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence, as referred to in the opinion of the Supreme Court, and in discharging defendant’s motion for a new trial.</p>

<p>Will — Devise—Partition—Owelty—Devisee’s indebtedness to estate — Charge against share — Amount of devisee’s indebtedness— Testator’s error as. to amount — Equity—Correction of error in will — Evidence.</p> <p>1. Where a testator directs the indebtedness of a son to be charged against his share of the estate, such direction may be carried out through the process of partition by charging the indebtedness on the share of the son as owelty.</p> <p>2. Where a testator directs the indebtedness of a son to be charged against his share of the estate, and designates in his will the amount of such indebtedness, a court of equity cannot inquire into the transactions and business dealings between the father and son prior to the making of the will and codicils for the purpose of showing that the father made a mistake in fixing the exact indebtedness to him at the date of the execution of such will and codicils. A different case would be presented if the indebtedness of the son was charged against his share of the estate in general terms, or if the amount of the indebtedness charged in the will was subsequently reduced by payments, or if the amount of the indebtedness be left open for future determination.</p> <p>3. In such a ease on the hearing of a bill in equity for partition the son is not a competent witness to matters which occurred in the lifetime of the father and which affect the distribution of his estate.</p>

Appeal, No. 376, Jan. T., 1914, by plaintiff, from decree of C. P. No. 4, Philadelphia Co., Sept. T., 1913, No. 4754, sustaining demurrer and dismissing bill in equity in case of Henry Gerlach v. Robert J. Moore, John T. Powers and Frank J. Gorman, County Commissioners for the City of Philadelphia, Defendants, and the Commonwealth of Pennsylvania, Intervening Defendant.

<p>Wills — Construction—Legacies—Residuary bequest — Intention— Determination of legacies.</p> <p>1. A will must be considered with a thought to the conditions under which it was written.</p> <p>2. Where a testator by a will executed during his last illness provided that “Whomsoever takes care of me and nurses and looks after my comfort during my last sickness or sees to it that I am properly nursed and cared for and given proper medical attention during my last sickness and a decent Christian burial after my decease,” should take the residuary estate, and it appeared that at the time of the execution of the will testator had no immediate family, that he was not on cordial terms with his sister, his nearest relative, and that he knew he was ill; that claimants had rented a room to deceased for three years previous to his death, during which period one of claimants had nursed him at various times when he was ill, as well as in his last illness, until testator was taken to a hospital by advice of a physician procured by claimants; that after his death claimants arranged for his burial according to instructions given them; and that claimants answered in all particulars to the description of the residuary legatees, the Orphans’ Court should have awarded the residuary estate to the claimants and not to the next of kin.</p>

<p>Appeal, No. 95, Oct. T., 1913, by Jeannette M. Thompson, from decree of O. C. Allegheny Co., May T., 1912, No. 220, sustaining exceptions to adjudication in Estate of John B. Glasgow, deceased.</p>

<p>Appeal, No. 111, Oct. T., 1913, by defendant, from judgment of C. P. Allegheny Co., Feb. T., 1911, No. 578, on verdict for plaintiff in case of Barney Craven v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Ford, J.</p> <p>The opinion of the Supreme Court states the facts. Verdict for plaintiff for $2,500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>