Volume 244 — Pennsylvania State Reports

<p>Building associations — Members—-Indebtedness of member — Payments on stock — Mortgages—Payment—Attachment sur judgment.</p> <p>1. While a building association may appropriate in reduction of the mortgage indebtedness of a member the value of such member’s stock which has been pledged as collateral security for the mortgage debt, payments which such member has made upon the stock are not ipso facto payments upon the mortgage.</p> <p>2. Where judgment has been entered on the bond accompanying a mortgage for the full amount of the mortgage with interest and the mortgaged premises have been sold for the satisfaction of the claim as entered and money has come into the hands of the sheriff to pay the full amount which the mortgagee alleged was'due when judgment was entered on the bond, the mortgage has been fully paid in the eye of the law and the mortgagee cannot thereafter credit the mortgagor with sums received in another capacity in relief of a second mortgagee.</p> <p>3. In garnishment proceedings it appeared that the garnishee, a building association, had loaned money to the defendant upon a mortgage and had taken as further collateral shares of stock in the association upon which payments had been made; that there-, after the mortgagor defaulted in payments of interest, and judgment was entered on the bond accompanying the mortgage for the full amount thereof with interest. The mortgaged premises were sold and the sheriff received an amount more than sufficient to satisfy the mortgage. Subsequently the plaintiff, a judgment creditor, attached the stock in the hands of the building association, and the association, apparently for the purpose of relieving the second mortgagee, then attempted to appropriate the defendant’s stock for the payment of the mortgage debt and gave credit on the judgment for the value of the stock pledged. Held, the court did not err in directing a verdict for the plaintiff and entering judgment, thereon. . •</p>

Appeal, No. 196, Jan. T., 1913, by plaintiff, from order of Superior Court, Oct. T., 1912, No. 268, reversing order of C. P. No. 1, Dec. T., 1911, No. 5918, M. L. D., dicharging a rule to strike out an item in a mechanics’ lien claim in case of Harry H. Burrows v. David R. Carson, owner or reputed owner, and Calvin ,W. Rogers, contractor. Appeal from the Superior Court.

<p>Negligence — Municipalities — Sidewalks — Contributory negligence^-Question for jury — Court and jury — Duty to instruct.</p> <p>Where in an action against a municipality to recover damages for personal injuries sustained by the plaintiff in consequence of stepping into a hole which had existed in the sidewalk close to plaintiff’s’ home for several months, the defendant relied solely for immunity from the consequences of its admitted negligence upon the contributory negligence of the plaintiff, and in presenting her case to' the jury as one free from contributory negligence the plaintiff testified that she did not know of the existence of the holei that she had passed over the pavement but once or twice in her life, that the last time she passed over it was three or four months before the accident; that at the time of the accident she was looking carefully down on the pavement and did not see the hole, and there was other testimony which would have justified a finding that she did have knowledge of its existence, the question of plaintiff’s contributory negligence was for the jury, and it was the duty of the trial judge to distinctly and definitely charge them as to the law' relating to it.</p>

<p>Negligence — Street railway — Master and servant — Employee off duty — Motorman—Shooting in strike — Nonsuit.</p> <p>In an action against a street railway company to recover damages for personal injuries sustained by plaintiff in consequence of his being shot by a motorman who fired from the rear platform of defendant’s trolley car, the court does not err in entering a nonsuit where it appears that during the progress of a strike the motorman was riding upon the trolley car as a passenger and was not operating the car or doing any other act on behalf of the company, and ..it further appeared that he had not been furnished with the revolver by the company or by any one on its behalf, and there was no evidence to show that in firing the shot he was acting on behalf, or for the protection of, the company.</p>

Appeal, No. 148, Oct. T., 1913, by plaintiffs, from decree of O. P. Westmoreland Co., No. 776, in Equity, sustaining demurrer to bill in case of D. L. Dillinger and W. A. Huff y. Anna W. Ogden, Trustee. Bill in equity for specific performance. Before McConnell, J. The opinion of the Supreme Court states the facts. The defendant demurred to the bill. The court sustained the demurrer and dismissed the bill. Plaintiff appealed. Error assigned was the decree of the court.

<p>Appeal, No. 262, Oct. T., 1913, by defendant, from judgment of C. P. Allegheny Co., June T., 1909, No. 963, on verdict for plaintiff by direction in case of State Bank of Chicago, a corporation chartered and doing business under the laws of the State of Illinois, at Chicago, in said State of Illinois, v. Edward D. King.</p> <p>Foreign attachment in assumpsit on a contract of guaranty. Before Cohen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge directed a verdict for plaintiff for $3,037.37, the amount of the claim with interest. Defendant appealed.</p> <p>Error assigned, among others, was the charge to the jury.</p>

<p>Appeal, No. 244, Oct. T., 1913, by Albert A. Hill, Mary H. Kyle, Jerome F. Hill, Aurelia L. Eckman, Annie N. Hill, Bella Shidler, Marie Richards, Rebecca A. Barnard, G. H. Shidler, Eli Jami-son, Henry Jamison, Julia Jamison, Isaac Hill, John Shidler, and Alpha H. Frye, from decree of O. C. Washington Go., May T., 1911, No. 85, refusing issue devisavit vel non, in Estate of Elizabeth Phillips, deceased.</p> <p>Appeal from decree of. register of wills admitting to probate the will of Elizabeth Phillips, deceased.</p> <p>Petition for an issue devisavit vel non. Before Mc-Ilvaine, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the appeal and refused, the issue.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 141, Oct. T., 1913, by plaintiff, from judgment of O. P. No. 2, Allegheny Co., Jan. T., 1910, No. 566, on verdict for defendant in case of Sarah Johns, now Edward A. Johns, Executor, v. Henry Johns, Jr.</p> <p>Ejectment for land in the City of Pittsburgh. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned, among others, were the refusal of the court to direct a verdict for plaintiff and to enter judgment for plaintiff n. o. v.</p> <p>There was no sufficient evidence of a parol gift followed by adverse possession to submit to the jury: Graham v. Craig, 81* Pa. 459; Ewing v. Ewing, 96 Pa. 381; Campbell v. Braden, 96 Pa. 388; Moreland v. Moreland, 121 Pa. 573; Truman v. Raybuck, 207 Pa. 357.</p>

<p>Appeal, No. 208, Oct. T., 1913, by plaintiff, from decree of C. P. Allegheny Co., April T., 1912, No. 2033, in Equity, dismissing 'bill in case of The Borough of Mt. Oliver, a Municipal Corporation, v. Mary Goldbach, Salome Goldbach, Anna Goldbach and George Goldbach.</p> <p>Bill in equity to restrain an encroachment on a highway. Before Sweaeingen, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were various rulings on fact and law and the decree of the court.</p>

<p>Appeal, No. 267, Oct. T.,. 1913, by plaintiff, from judgment of C. P. Allegheny. Co., Fourth T., 1909, No. 183, for defendant, in case of Mary A. Gosser v. Ohio Valley Water Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Carnahan, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court directed a verdict for defendant upon which judgment was entered. Plaintiff appealed.</p> <p>Errors assigned were in giving binding instructions for defendant and in excluding evidence referred to in the opinion of the Supreme Court.</p> <p>W. H. S. Thomson, with him Frank Thomson and R. E. Anderson, for appellant.</p> <p>A water company must furnish ordinarily pure and wholesome water, reasonably free from infectious and contaminating substances, and is liable for injury resulting from its failure so to do: Brymer v. Butler Water Co., 172 Pa. 489; Peffer v. Pennsylvania Water Co., 221 Pa. 578; Green v. Ashland Water Co., 101 Wis. 258.</p> <p>It was competent to prove the statements of the deceased to his attending physician to show that he drank the water: Omberg v. United States Mutual Accident Association, 101 Ky. 303; West Chicago Street Ry. Co. v. Kennelly, 48 N. E. Repr. 996; Lichtenwallner v. Laubach, 105 Pa. 366; Lake Shore & Michigan Southern Ry. Co. v. Rosenzweig, 113 Pa. 519.</p> <p>The court properly directed a verdict for defendant: Wharton v. Bradford, 209 Pa. 319; Friend v. Kramer, 236 Pa. 618; Peffer v. Pennsylvania Water Co., 221 Pa. 578; Buckingham v. Plymouth Water Co., 142 Pa. 221.</p> <p>The evidence of the statements of the deceased was properly excluded: Roosa v. Boston Loan Co., 132 Mass. 439; 3 Wigmore on Ev. Sec. 1722.</p>

<p>Appeal, No. 274, Oct. Term, 1913, by plaintiffs and defendants, from decree of 0. P. No. 2, Allegheny Co., July T., 1911, No. 598, in Equity, awarding an injunction and an accounting in case of Mary M. Findley (nee Warren), wife of James T. Findley, Ida A. Findley (nee Warren) wife of Robert E. Findley, and Maggie E. Wolford (nee Warren) wife of Frank Wolford, children of John Warren y. John Warren, William Munhall, The Forest Oil Company, a corporation and the South Penn Oil Company, a corporation.</p> <p>Bill in equity for an injunction and accounting. Be-' fore Reid, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court awarded an injunction restraining defendants from, taking oil from premises of which, plaintiffs were remaindermen and decreed discovery and an accounting for oil previously removed. Subsequently sur hearing for statement of account the court made certain findings of fact and law, and decreed damages to the plaintiffs in the sum of $10,949.70. Among the findings of fact was the thirty-first which, as modified, was as follows: “That the sons of John Warren, W. J. Warren and Bert Warren, coremaindermen with the plaintiffs, recognized the existence of the lease made by their father, John Warren, by working for the lessees in various capacities from time to time during the production of oil by the defendants and assisting in said production. They are not parties to the litigation and made no claim during the progress of the cause to any interest with the plaintiffs to any damages or compensation.” (31)</p> <p>Plaintiffs and defendants, appealed.</p> <p>Errors assigned in each appeal were, among others, dismissing the exceptions to the thirty-first finding of fact and the final decree.</p>

<p>Negligence — Street railways — Infants—Charge.</p> <p>In an action of trespass to recover damages for personal injuries sustained by plaintiff, an infant of seven years, in consequence of being run over by a trolley car at the intersection of two city streets, there was evidence that plaintiff, after leaving school in company with other children, was crossing the street upon which defendant’s tracks lay; that a trolley car which had stopped on the north side of the intersecting street started after the children began to cross and struck plaintiff on the south side of the intersecting street; that the motorman was not looking straight ahead but toward the side, immediately before the accident occurred, although he could have seen numbers of children crossing the street when the car started at the north side, had he been looking at that time. Held, the case was for the jury, and a verdict and judgment for plaintiff was sustained.</p>

<p>Appeal, No. 145, Jan. T., 1913, by defendant, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1911, No. 409, on verdict for plaintiff in case of Vulcanite Paving Company v. City of Philadelphia.</p> <p>Assumpsit by a contractor to recover the amount of certain uncollectible assessment bills received under a paving contract with defendant city. Before Audenried, J.</p> <p>The facts appear in the opinion of the Supreme Court and in Vulcanite Paving Co. v. Philadelphia, 239 Pa. 524. At the trial a verdict was rendered for plaintiff for |2,242.53. Subsequently the court entered judgment for defendant n. o. v., which judgment on appeal to the Supreme Court was reversed with a direction to the court below to enter judgment on the verdict. From the judgment so entered defendant appealed.</p> <p>Errors assigned were in the admission of certain evidence and in refusing to enter judgment for defendant.</p>

<p>Appeals, No. 155 and 156, Jan. T., 1913, by defendant, from judgments of C. P. No. 4, Philadelphia Co., March T., 1911, No. 858, on separate verdicts for plaintiffs in case of Lizzie Applebaum and Frank Applebaum, her husband, v. Philadelphia Rapid Transit Co.</p> <p>Trespass to recover damages for personal injuries. Before Willson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff Lizzie Applebaum for $1,545.00, and for Frank Applebaum for $955.00 and judgment thereon. Defendant appealed.</p> <p>Error assigned was in refusing to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 194, Jan. T., 1913, by cross plaintiff, from decree of C. P. No. 1, Philadelphia Co., Dec. T., 1911, No. 5304, in Equity, dismissing cross bill in case of Lee Henry Robertson v. Charles J. Hatfield and James Spear, Jr.</p> <p>Bill and cross bill in equity to enforce an agreement for the support of appellant’s daughter. Before Bregy, P. J.</p> <p>From the recoru ix appeared that James Spear, Jr., and Lee Henry Robertson, formerly husband and wife, entered into a written agreement, to which also the trustee under the agreement was a party, providing for the support of their child, Louise Henry Spear, the material part of which agreement was as follows:</p> <p>2. That the said James Spear, Jr., will on the day of the execution of this agreement, pay to Mrs. Louise S. Hatfield, the sum of two thousand dollars, and will give to her at the same time a check for the further sum of two thousand five hundred dollars payable July 5,1908; and thereafter within ten days from the first day of January of each and every year, so long as his daughter Louise Henry Spear, shall live, will pay to the said Mrs. Louise S. Hatfield the sum of five thousand dollars, if his income from his father’s estate, payable in January exceeds the sum of ten thousand dollars, but if it is less than that sum he shall pay to her one-half of the income then receivable, and the balance, so as to amount to five thousand dollars per year, on the first day of April of that year, all said sums to be used by her, in her discretion, for and towards the care, support, maintenance and education of the said Louise Henry Spear, without any liability to account to the said James Spear, Jr., for the manner in which said money, or any part thereof, is expended; the intention hereof being that that sum shall be spent each and every year during said child’s life for the purposes stated, in the sole and absolute-discretion of the party receiving the same.</p> <p>Mrs. Hatfield, the original trustee, died and her husband succeeded her as trustee, under the terms of the agreement. He declined to expend more than $2,40.0 a year for the purposes of the agreement, on the ground that this was enough for the support of the daughter. Lee Henry Robertson filed a bill in equity against the trustee and James Spear, Jr., to require the trustee to expend the entire amount received by him ($5,000) for the maintenance and education of the daughter, Louise Henry Spear, or if any surplus remained to pay it over to plaintiff. James Spear, Jr., was allowed to intervene and filed a cross bill against the trustee and Lee Henry Robertson, praying that the balance remaining in the hands of the trustee, after providing for the support of the daughter, should be returned to him.</p> <p>In dismissing the bill and cross bill the following were the facts found and the legal conclusions reached by the court below:</p> <p>1. On April 20, 1908, Lee Henry Robertson (at that time Lee Henry Spear), the plaintiff in the original bill in equity; James Spear, Jr., the plaintiff in the cross bill, and Louise S. Hatfield, entered into the agreement .set forth as Exhibit A to both bill and cross bill.</p> <p>2. By the will of the father of the said James Spear, Jr., mentioned in said agreement, the latter receives the income of the sum of $669,551.16 for life, with the right to dispose of $50,000 thereof by will, and with remainder, as to the balance, to the children of said James Spear, Jr.</p> <p>3. Louise Henry Spear, named in said agreement, is the only child of the said James Spear, Jr. She was born February 7, 1904, and has always resided with her mother, Lee Henry Robertson. Their present residence is and for some time has been at Ruxton, Baltimore County, Maryland.</p> <p>4. On August 22, 1909, said Louise S. Hatfield, the trustee named in said agreement, died, and Charles J. Hatfield, the substituted trustee named therein, and a defendant in both bill and cross bill, accepted the trust under said agreement, and is still acting as such trustee.</p> <p>5. On May 11, 1910, the said Lee Henry Spear intermarried with Charles E. Robertson.</p> <p>6. On February 1, 1912, the said Lee Henry Robertson was duly appointed guardian of the person and estate of the said Louise Henry Spear by the Orphans’ Court of said Baltimore County, Maryland.</p> <p>7. During the year 1911, the said James Spear, Jr., paid to the said Charles J. Hatfield in accordance with said agreement, the said sum of $5,000 for that year, and thereof the latter, against the protests of plaintiff, expended only the sum of $2,400 “for and towards the care, support, maintenance and education of the. said Louise Henry Spear,” claiming that that sum was a sufficient expenditure for those purposes. That claim was and is disputed by the said Lee Henry Robertson, individually and as guardian as aforesaid, but it was agreed between counsel that all questions relating to the amount which should have been expended shall be left open until the questions arising out of the construction of said agreement shall have been finally determined.</p> <p>8. Upon said unexpended balance of $2,600 interest has accumulated in the sum of $118.62.</p> <p>9. On February 3, 1912, the said James Spear, Jr., paid to the said Charles J. Hatfield, the said sum of $5,000 for that year, and thereout the said Charles J. Hatfield has expended each month the sum of $200, and has made an additional payment of $224 to cover the summer vacation of said Louise Henry Spear, and a bill for expenses growing out of the illness of her nurse.</p> <p>10. James Spear, Jr., was divorced from Lee Henry Robertson (then Spear) on May 3, 1910.</p> <p>11. The trustee is allowing $200 per month for the care, support, maintenance and education of the child, and states that he considers that to be the proper amount to expend for such purposes.</p> <p>12. No evidence was offered to show that the child requires a greater allowance or more money than the trustee has allowed.</p> <p>13. James Spear, Jr., paid under said agreement to the trustee on February 3,1912, the sum of $5,000 under protest that the unexpended balance should be credited on that amount.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. The fundamental purpose of the agreement of April 22, 1908, is to create a fund for the care, support, maintenance and education of Louise Henry Spear by imposing upon James Spear, Jr., an obligation to pay to the trustee under said agreement the sum of $5,000 per year.</p> <p>2. The agreement of April 22, 1908, confers upon the trustee an absolute discretion as to how much of the fund under his control shall be expended in any year for the purposes for which the fund is created.</p> <p>3. The agreement of April 22, 1908, confers upon the trustee an absolute discretion as to when the money under his control shall be expended for the purposes therein set forth.</p> <p>4. Under the agreement of April 22, 1908, the unexpended balance of the fund created under the said agreement remaining in the hands of the trustee is subject to use at any time during the lifetime of Louise Henry Spear for the purposes set forth in the said agreement.</p> <p>5. At this time, Louise Henry Spear being still alive, Lee Henry Eobertson, the plaintiff in the bill filed in this cause, has no right to the unexpended balance in the hands of the trustee under the agreement of April 22, 1908.</p> <p>6. At this time, Louise Henry Spear being still alive, James Spear, Jr., the.plaintiff in the cross bill filed in this cause, has no right to the unexpended balance in the hands of the trustee under the agreement of April 22, Í908.</p> <p>7. It is not necessary at this time to determine the rights that may exist under the agreement of April 22, 1908, as to any unexpended balance in the hands of the trustee at the time of the death of Louise Henry Spear.</p> <p>8. The bill and cross bill should be dismissed.</p> <p>ROBERTSON v. HATFIELD, Appellant. 1914.] Statement of Facts — Opinion of the Court.</p> <p>The costs in each case to be paid by the party filing the bill, to wit: Lee Henry Robertson the costs in the original bill and James Spear. Jr., the costs in the cross bill.</p> <p>The appeal of the complainant in the bill was dismissed: Robertson v. Hatfield, et al., 240 Pa. 476; and this appeal is from the decree dismissing the cross bill.</p> <p>Error assigned, among others, was in dismissing the cross bill.</p>

<p>Contract — Builder’s contract — Defenses—Case for jury.</p> <p>In an action of assumpsit to recover a balance due on a written contract for the erection of a building in accordance with certain plans and specifications where the defense is that plaintiff had failed substantially to perform his contract and that one of defendants had been released from his obligations by the plaintiff, but where it appears that the question of substantial performance was submitted to the jury with full and accurate instructions and that the allegation that one of the defendants had been released from his obligations is not sustained by the evidence, a verdict and judgment for plaintiff will be sustained.</p>

<p>Appeal, No. 116, Jan. T., 1913, by defendant, from judgment of Superior Court, Oct. T., 1912, No. 195, affirming order of C. P. No. 2, Philadelphia Co., Sept. T., 1910, No. 4058, refusing judgment for defendant non obstante veredicto in case of Morris Tamarin v. Pennsylvania Railroad Company.</p> <p>Appeal from Superior Court.</p> <p>The case is reported in 53 Pa. Superior Ct. 83.</p> <p>The opinion of the Superior Court, by Head, J., is as follows:</p> <p>A clear statement of the material facts established in this case will aid in making plain the precise question with which we have to deal. The plaintiff, a traveling salesman, bought from the defendant company a ticket entitling him to transportation from Wellsville, Ohio, over the line and branch line of the defendant, to New Castle, Pa. At the same time he tendered to the baggage agent of the defendant, for transportation between the same points, two trunks and a telescope. The agent made no request for any information as to the nature or value of the contents of the trunks; the plaintiff volunteered none. The agent, after demanding and receiving a small sum of money on account of the weight of the trunks, accepted them and issued to the plaintiff the company’s baggage checks for them. The plaintiff and his trunks arrived safely at New Castle Junction, at which point it became necessary to take another train on a branch line of the defendant to complete his journey. The trunks were safely unloaded at that point by the defendant’s servants and placed on one of its ordinary trucks to be removed to another platform from which they could be loaded on the branch line train. The truck, loaded with the trunks of the plaintiff and other passengers, was wheeled across the intervening space to the proper platform and there deposited by the defendant’s servant so close to the edge of the platform next to the track, that a freight train of the company, passing almost immediately thereafter, struck it, scattered its contents and caused the injury to the plaintiff’s property of which he complains in this action. It later appeared that the property injured and here sued for consisted of samples of the goods which the plaintiff was engaged in selling and not of his own wearing apparel or what may be strictly called personal baggage. All of the facts above stated are affirmatively proven by the testimony of the plaintiff. No one of them is controverted or denied. They must, therefore, be taken in the light of the verdict, as admitted or established. Do they exhibit a cause of action against the defendant? The latter offered no testimony but contented itself with a motion for binding instructions. This being refused, as well as a later motion for judgment non obstante veredicto, the defendant appeals.</p> <p>As we view the case, we need not concern ourselves with several propositions urged upon us in the able brief of the appellant. We need not stop to inquire whether or not the defendant, as a common carrier, would have been obliged to receive and transport the plaintiff’s property by reason of the fact merely that he had purchased a ticket for himself and was about to become a passenger. It raised no such question and actually did receive the property and undertook to transport it. Nor need we trouble ourselves with the difficulties which the plaintiff would have encountered had his trunks simply been lost without any affirmative proof that such loss was caused by the negligent act of the defendant. In such case he would have been compelled to rely upon certain legal presumptions which attach only to a common carrier and arise from its obligation as an insurer. We have here affirmative and uncontradicted evidence that the loss complained of was the direct result of the negligent act of the defendant’s servants. Nor is it of vital importance that the sum of money which the defendant demanded and received from the plaintiff, in addition to the price of his own ticket, was small and fixed with reference to the weight of the trunks rather than to the value of their contents. If, indeed, the trunks and their contents were of such character that the defendant was not legally obliged to transport them, it could have declined to accept them. Or, if it chose to accept them, it could fix its own resonable terms upon which it would carry them. Nor are we confronted with the situation that might have arisen had the plaintiff, by any fraud or misrepresentation induced the defendant to accept the trunks when otherwise it would have declined to do so. The evidence is wholly barren of any foundation to support any such consideration.</p> <p>What, then, is the plain question we are called upon to answer? The defendant received the property of the plaintiff and undertook to transport it to New Castle. It received compensation for such undertaking, the measure of the compensation being fixed by itself. The property was safely carried until the junction point referred to was reached. There it was injured or destroyed by the negligent act of the defendant. Under these facts, that the defendant become a bailee for hire seems to us to be undeniable. In such case its liability would certainly be at least that of an individual bailee or private carrier. It is no new proposition of law to assert that such bailee is answerable for a loss to the bailed property caused by his own negligence. This seems to us to be the controlling question in the case.</p> <p>But it is strenuously urged upon us that our own case of Merritt v. Lehigh Valley Railroad Co., 49 Pa. Superior Ct. 219, conclusively establishes that under the present state of facts the defendant is absolutely relieved of liability, even for loss resulting from its own proven negligence, because the contents of the trunks were in legal phrase “merchandise” and not baggage. To this we cannot assent. An examination of the record in the case referred to will clearly show that the controlling question, not only in the court below but in this court, was whether the railroad company, at the time of the loss of the trunks, was liable as a common carrier or only as a warehouseman. There the contract of carriage, if there were one, had been completed. The trunks had safely reached their destination. The owner, for his own convenience, had stopped en route and was not at the point of destination to receive his trunks when they arrived. The company was consequently compelled to store them in its warehouse to await his demand for them. While so stored the warehouse, with its contents including the trunks mentioned, was destroyed by fire. There was no evidence whatever that the fire was caused by any negligent act of the railroad company. Manifestly, then, the plaintiff had to rely on the proposition that the company remained an insurer of his property and had not become a warehouseman. His contention in this respect was not supported by the evidence and the learned trial judge felt compelled to declare at the time the property was destroyed the company was but a warehouseman, and, as no act of negligence on its part had been established, the plaintiff was without remedy.</p> <p>When the case came into this court on .appeal, the able counsel for the appellee himself thus stated in his paper book the single question involved, to wit, “At the time of the destruction of the appellant’s property, was the liability of the appellee that of an insurer or that of a warehouseman? The answer of this court was that the learned trial judge was correct in holding, under the evidence, that the company was but a warehouseman, and the judgment was affirmed. In the opinion filed by our Brother Morrison that phase of the case was first taken up and considered, and it was clearly pointed out that the opinion of the learned trial judge, which dealt solely with the question we have stated, exhibited sufficient reasons and authorities, to sustain the judgment he had entered. Judge Morrison then proceeds to discuss briefly some considerations which, under the facts of that case, would further strengthen the conclusion reached by the court below and this court. He introduces his remarks on this subject with these significant words: “But in addition to what is said in that opinion we suggest that there was no obligation on the part of the appellee to carry merchandise as baggage.” After the statement of some legal propositions which are undeniably correct when properly applied, he concludes his remarks on that subject with the repetition of the same thought with which he began it, to wit: “But, evert if the appellee had received the trunks as merchandise to be carried as such between the points of shipment and destination, the appellee’s responsibility as a carrier ended when the trunks arrived at Laceyville and were deposited in the baggage room.”</p> <p>It cannot, therefore, be successfully urged that the case cited is in its material aspects in the same category with the present one. The all-important question of fact which distinguishes this case from the Merritt case and others cited is that here we have affirmative proof that the bailed property, whilst in the hands of the bailee, was injured or destroyed by its own negligent act. We have been pointed to no case and our own research has failed to develop one where, under such circumstances, a railroad company has been relieved from liability for its own negligence because the property destroyed was merchandise rather than baggage, when its undertaking to carry was not induced by any fraud or misrepresentation of the owner.</p> <p>In Camden & Amboy Railroad Co. v. Baldauf, 16 Pa. 67, a plaintiff was permitted to recover the value of the contents of his trunk which included a quantity of silver coin, although he was not able to prove affirmatively that the loss occurred by the negligent act of the defendant. It is true, some propositions were advanced in that case as to the nature of a notice which the company was obliged to give to a traveler in attempting to restrict its own liability, and in this respect perhaps the case has been somewhat criticized in the later decisions. But in no case has it been asserted that a railroad company may not undertake to carry as baggage what might be strictly termed merchandise, and if it does so undertake, that it will be excused from liability for loss where such loss is shown to have resulted from its own negligence. In one of the later cases, Brown v. Camden & Atlantic Railroad Co., 83 Pa. 316, Mr. Justice Shabswood quotes the earlier case among others as authority for the proposition that “the party who sends goods by a common carrier is not bound to declare their value unless required to do so.” In Farnham v. Camden & Amboy Eailroad Co., 55 Pa. 53, Mr. Justice Thompson says: “By the common law the carrier is an insurer of the goods intrusted to him, excepting so far as they are damaged by the act of God or public enemies. By a contract limiting liability he is an insurer by agreement, and according to its terms. If there be a loss, the agreement furnishes the extent of liability and is confined to that, unless he can show that the loss occurred from the wilfulness or negligence of the carrier. His liability is as a private carrier or bailee, a consequence of the limitation.”</p> <p>Whilst the exact question now before us did not arise either in Jacobs v. Eailroad Co., 19 Pa. Superior Ct. 13, or Bullard v. Eailroad Co., 21 Pa. Superior Ct. 583, the principle here stated is recognized in those cases, as clearly indicated by the following extract from the opinion of our Brother Orlady in the case last cited: “The rule is well settled that the liability of a carrier for a passenger’s baggage, which has been intrusted to its care, is that of an insurer, the price paid for the ticket, or for transportation embracing compensation for the carriage of the baggage, and is limited to such articles as are necessary for the comfort of the passenger, and for all in addition to this class the carrier is not an insurer, but a bailee, and cannot be compelled to carry them unless an additional compensation is paid.”</p> <p>We are therefore of opinion that the learned court below could not have granted the motion for judgment for the defendant non obstante veredicto, and as the refusal of this motion constitutes the sole assignment of error, the assignment must be overruled.</p> <p>Judgment affirmed.</p> <p>Error assigned was in overruling motion for judgment non obstante veredicto.</p>

<p>Negligence — Street railway — Switch—Absence of switch bar — ■ Car jumping track — Pedestrian on sidewalk — Presumption of negligence — Case for jury.</p> <p>In an action against a street railway company to recover ¿images for personal injuries, the case is for the jury and a verdict and judgment for plaintiff will be sustained where it appeared that after the front truck of one of defendant’s cars had passed a switch at a point where the tracks of the company intersected, the rear truck turned on the switch, thereby throwing one end of the car onto the sidewalk and striking the plaintiff who was standing near the curb, where there was testimony on behalf of plaintiff tending to show that an iron bar was used to keep the tongue of such switch in place, that a bar or similar appliance was necessary for that purpose and was out of place at the time of the accident. The bar being under the exclusive management of defendant its absence gave rise to a presumption of negligence sufficient to take the case to the jury.</p>

<p>Appeal, No. 232, Jan. T., 1913, by plaintiff, from decree of C. P. No. 4, Philadelphia Co., Dec. T., 1910, No. 908, in Equity, refusing to order reassignment of insurance policy in case of Andrew J. Cohen v. Joseph S. Keller.</p> <p>Bill in equity to compel reassignment of insurance policy given as collateral security. Before Carr, J.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 234, Jan. T., 1913, by defendants, from judgment of C. P. No. 5, Philadelphia Co., March T., 1910, No. 3286, on verdict for plaintiff in case of Michael McVey v. William J. Hughes and Morris Boney, Jr., trading as Morris Boney and Son.</p> <p>Trespass to recover damages for personal injuries. Before Ralston, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>At the trial defendant’s counsel presented points for instructions which with the court’s answers thereto were as follows:</p> <p>“4. There is no evidence which would justify a recovery by plaintiff on the ground that defendants negligently employed an incompetent winchman.</p> <p>“Answer. That point is declined. I have already cautioned you, that the evidence which would justify such a finding is extremely slight. (1)</p> <p>“6. The evidence would not justify a finding against the defendants for negligence in using a winch which had no brake.</p> <p>‘.‘Answer. The sixth point is declined.” (2)</p> <p>Verdict for plaintiff for $7,500, and judgment thereon! Defendant appealed.</p> <p>Errors assigned were (1, 2) answers to above points.</p>

<p>Negligence — Master and servant — Safe means of access — Knowledge of danger — Instructions of superior — Minor.</p> <p>1. It is the duty of the employer to furnish his employees with reasonably safe means to perform the service required of them, and if no means or unsafe means are furnished for the purpose, the employer fails in the performance of a legal duty which he owes the employee.</p> <p>2. An employer fails in its duty to its employees in furnishing a proper means of access to and descent from a place of employment upon a raised platform, where the only means of getting up and down was by the projecting ends of iron bars piled in racks under the platform and the top of other bars driven perpendicularly into the ground to hold the iron in place, such iron not having been placed there specifically for such a purpose, and for which it was insufficient and unsafe.</p> <p>3. Under such circumstances, and after plaintiff has shown that the means of access were not only unusual but much more dangerous than ordinary, it is competent for the plaintiff to show the customary method of access to platforms used in similar establishments.</p> <p>4. In an action against his employer to recover damages for injuries to a minor the question of defendant’s negligence is for the jury where it appears that plaintiff, a boy of fourteen, was employed by defendant and put under orders of a foreman; that the latter directed him to climb up upon an elevated platform by means of the projecting ends of a pile of iron bars, which was the only means of access provided, and was used by the other employees; that while descending his feet slipped and he was injured; that the means of access were unusual and dangerous, and that the plaintiff had no knowledge of the danger by experience or instruction.</p> <p>5. In such a case the plaintiff had a right to rely upon the representations and instructions of the foreman and cannot be held to have assumed the risk.</p>

<p>Appeal, No. 198, Jan. T., 1913, by defendant, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1911, No. 4176, on verdict for plaintiff in case of William F. Hazzard v. Mary W. Carstairs.</p> <p>Trespass to recover damages for personal injuries. Before Willson, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The jury found a verdict for plaintiff for $8,000. Defendant appealed.</p> <p>Error assigned, inter alia, was in refusing defendant’s motion for judgment non obstante veredicto.</p> <p>There was no proof of negligence on the part of the chauffeur: Downey v. Pittsburgh Rys. Co., 219 Pa. 592; Gallagher v. Snellenburg, 210 Pa. 642.</p> <p>The case is wholly barren of any fact from which the jury might have found or properly inferred that the chauffeur was acting under the direction or with the knowledge, consent or subsequent ratification of this appellant: Fire Insurance Patrol v. Boyd, 120 Pa. 624; Lotz v. Hanlon, 217 Pa. 339.</p> <p>This case comes under the rule laid down in the case of Davidson v. Traction Co., 4 Pa. Superior Ct. 86.</p> <p>The doctrine of respondeat superior applies: Marcus v. Gimbel, 231 Pa. 200; Lotz v. Hanlon, 217 Pa. 339; Moon v. Matthews, 227 Pa. 488.</p>

<p>Appeal, No. 298, Jan. T., 1913, by plaintiff, from judgment of C. P. No.- 3, Philadelphia Co., Sept. T., 1909, No. 432, for defendant non obstante veredicto in case of Morris Rohrback v. Pennsylvania Railroad Company.</p> <p>Trespass for a personal injury. Before Davis, J.</p> <p>The jury found a verdict for plaintiff. Upon motion of defendant the court entered ’judgment for defendant non obstante veredicto.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned, among others, was in entering judgment for defendant non obstante veredicto.</p> <p>The case was for the jury: Kelly v. R. R. Co., 236 Pa. 110; Penna. Co. v. Roy, 105 U. S. 451; Nelson v. Ill. Cent. R. R. Co., 53 Southern Rep. 619; Valentine v. R. R. Co., 126 Pa. 99; Hayne v. Union St. Ry., 189 Mass. 551; Haver v. R. R. Co. of N. J., 62 N. J. L. 282 ; Greb v. Pa. R. R. Co., 41 Pa. Superior Ct. 61; Atherholt v. P. R. R. Co., 199 Pa. 408; Brennan v. Merchant & Co., 205 Pa. 258; Chicago Eastern R. R. Co. v. Stratton, 111 Ill. App. Ct. 142.</p> <p>In committing this assault, the porter acted outside the line of his duty, and to gratify his personal feelings, and therefore the defendant is not liable: Ware v. Barataria, 15 La. 169; Vanderbilt v. Richmond Turnpike Co., 2 N. Y. 479; Brokaw v. R. R. Co., 32 N. J. L. 328; R. R. Co., v. Wetmore, 19 Ohio St. 110; Cassidy v. Pullman Palace Car Co., 17 So. R. 373; Goodloe v. R. R. Co., 107 Ala. 233; Walton v. New York Central Sleeping Car Co., 139 Mass. 556.</p>

<p>Trial — Court and jury — Binding instructions for plaintiff — Oral testimony — Evidence.</p> <p>A request for peremptory directions to a jury to find in favor of a plaintiff is properly refused where such request depends entirely upon oral testimony presented by the plaintiff.</p>

Appeal, No. 321,. Jan. T., 1913, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1912, No. 904, upon verdict for defendant in feigned issue in case of Jénnie Goldsmith v. Arch Building and Loan Association. Feigned issue between the claimant of certain goods levied upon under a fi. fa. as plaintiff and the plaintiff in the execution as defendant. Before Heydt, P. J., specially presiding. The opinion of the Supreme Court states the case.

<p>Wills — Undue influence — Issue devisavit vel non — Instructions.</p> <p>Upon an issue devisavit vel non, the case was submitted to the jury which found that tbe paper which had been admitted to ■ probate by tbe register as the last will of tbe decedent had been procured by fraud and undue influence. The will gave to the proponent decedent’s entire estate, amounting to ¡about $8,000/ less $360 given to others. At tbe time tbe decedent signed the paper, she was sixty-three years old, 'and according to the testimony, was feeble and infirm. She lived in tbe same house with the proponent. She went there to be treated by him as a masseur, after her attending physician found he could do nothing to relieve her from rheumatism and heart and kidney troubles from which she was suffering. Decedent could not read and could’write nothing. but her name. When she wrote her- name at the end of what proponent claimed to be her last will, proponent was, according to his own testimony, sustaining confidential relations with, her. Held, that the case was for the jury and that the court did not abuse its discretion in refusing to set aside the verdict and award a new trial.</p>

<p>Appeal, No. 142, Jan. T., Í913, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., June Term, 1910, No. 754, entered for the defendant upon whole record in case of Patrick C. O’Gara, by his father and next friend, Patrick G. O’Gara, and Patrick G. O’Gara v. Philadelphia Electric Company.</p> <p>Trespass for personal injuries. Before Stewart, J.</p> <p>The facts appear by the opinion of the Supreme Court,</p> <p>Upon the trial the defendant presented a request for binding instructions in its favor. This was refused, and the jury having disagreed, the court subsequently entered judgment for defendant upon the whole record, under authority of the Act of April 20,1911, P. L. 70.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Wills — Construction—Contingent and vested remai/nders — Postponement of distribution — Powers.</p> <p>1. The rule of construction that the law favors a vested rather than a contingent estate is not applicable where the intention of the testator is manifest.</p> <p>2. Where a testator devises his estate in trust to pay the income to his eight children for their respective lives and on their deaths to certain persons, and provides that on the death of the surviving child the corpus is to he divided among the devisees of each child, or, if dying intestate, to his or her lineal heirs, or if dying without such heirs, then to the legal heirs of the other children of the testator, the “share” of each child in the corpus vests on big death, in his devisees or lineal heirs, or in the heirs of the other children of the testator, as the case may he, and the vesting of such interests is not contingent upon such beneficiaries surviving the period of distribution.</p> <p>3. A testator devised his residuary estate in trust to pay the income in equal parts to his eight children for and during their natural lives and further provided, “In the event of the death of any of my said children leaving a last will and testament, then in trust to pay his or their portion or portions of my. said estate to such person or persons and for such use and uses as he, she or they may thereby direct and appoint. And in the event of the death of any of my said children without leaving a will, or leaving a will whereby the same may not he legally bequeathed, then in trust to pay the same to his, her or their child or children, and if there be no issue, then to his, her or their brothers and sisters and the issue of such of them as may then be deceased.” As to the distribution of the corpus testator provided, “And from and after the decease of the survivor of my said children then in trust to convert all my said estate, real and personal, into money and divide the same amongst the devisees, if any, and the lineal heirs of such as may not leave a will of my aforesaid children to take only part and proportion of which such child had received the income, and if there be neither will nor lineal heirs of any of my said children the share of such child shall be divided amongst the legal heirs of any other children.” On the audit of the trustee’s account, an ex-ceptant thereto was a granddaughter and only surviving lineal heir of a daughter of the testator, who had died intestate before the period of distribution of -the corpus, and who had left a son and daughter, both of whom also died before the period of distribution, the former leaving the exceptant as sole surviving heir and the latter devising her share in the corpus to her husband, who died before the period of distribution, naming his four sisters as devisees of such interest. Exceptant contended that the interest passing under the will of the original testator was contingent upon the heirs or devisees of the testator’s children surviving the period of distribution, and claimed one-eighth of the estate as the only surviving lineal heir of her grandmother to the exclusion of any interest passing under the will of her aunt above mentioned, and also claimed to the exclusion of such aunt an interest in the estate devised by two children of the original testator to said grandmother of the exceptant. The auditing judge confirmed the account of the trustee and awarded the shares derived from exceptant’s grandmother in equal shares to exceptant and the executor of the deceased husband of exceptant’s aunt. The court in banc dismissed exceptions to the adjudication of, the auditing judge. Held, no error.</p>

<p>Negligence — Automobiles — Collision — Master and servant — Scope of employment — Case for jury.</p> <p>In an action to recover damages for the death of plaintiff’s husband, caused by a collision of the wagon in which decedent was driving and an automobile owned by defendant company and in charge of defendant’s servants, the case is for the jury and a verdict for the plaintiff will be sustained where the plaintiff has established a prima facie case by showing that the accident had been caused by the negligence of defendant’s servants while returning from a trip which they had been ordered to make by defendant, and where defendant offered no evidence, but contended that the plaintiff could not recover on the ground that it might be inferred from the facts that defendant’s servants were not acting within the scope of their employment, but at the time of the accident had gone a few blocks out of their way for purposes of their own.</p>

<p>Appeal, No. 230, Jan. T., 1913, by defendant, from judgment of O. P. No. 2, Philadelphia Co., June Term, 1908, Nos. 4150 and 4151, consolidated on verdict for plaintiff in case of Miles E. Dunn v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries, sustained by plaintiff and for the death of plaintiff’s wife. Before Sulzberger, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,024.48, 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>Negligence — Street railways — Crowded car — Passengers—Passenger on running board — Unavoidable accident — Judgment for defendant on the record.</p> <p>1. Where a passenger standing on the running board of a crowded summer trolley car is killed through collision with the shafts of a passing vehicle, owing to the sudden and unexpected shying of the horse, no presumption of negligence on the part of the railway company arises and the burden is on the plaintiff to prove actual negligence.</p> <p>2. In an action against a street railway company to recover ■ damages for déath of plaintiff’s husband, it is error to submit the case to the jury, where it appeared that decedent was a passenger on a summer trolley car of defendant company and owing to the crowded condition of the car was standing on the running board; that as the car was passing a horse and wagon, the horse suddenly shied, causing the shaft of the wagon to strike the plaintiff; and the uncontradicted evidence showed that the horse did not shy until the front of the car had passed his head, and there was no evidence that the motorman saw the hoTse shy in time to avoid the accident, or that the car was being negligently operated.</p>

<p>Negligence — Street railways — Passengers—Open cars — Contributory negligence — Case for jury.</p> <p>1. A passenger on a street railway ear who rides on a side step when it is reasonably practicable for him to go inside the car, assumes all the risks of his position. But when the passenger by invitation of the conductor or with his knowledge and assent, and from necessity, because of the want of sitting or standing room inside the car, rides on the side step, he is entitled to the same degree of diligence to protect him from dangers which are known and may readily be guarded against as are other passengers.</p> <p>2. In an action against a street railway company to recover damages for the death of plaintiff’s husband, a passenger on one of defendant’s open cars, the case is for the jury and a verdict for the plaintiff will be sustained, where there was evidence that the car was so crowded that deceased was compelled to ride on the running board; and that as the car passed a wagon in plain view of the motorman as the car approached, the hub of the wheel protruded over the running board of the car, in consequence of which deceased was thrown off and killed.</p> <p>Bumbear v. Traction Co., 198 Pa. 198, followed.</p>

<p>Contracts — Substantial performance — Question for jury — Building contracts — Imperfections—Set-off — Damages — Measure of damages — Evidence—Instructions to jury,</p> <p>1. Where there has been substantial and bona fide performance of an entire contract, but failure in.some particulars, not essential to the enjoyment of the part performed, there may be a recovery of the contract price subject to the right of defendant to set-off damages resulting from the breach.</p> <p>2. Whether an article furnished under a contract is so far perfected as to answer the intended purpose, and is taken possession of and turned to that purpose by the party for whom it is constructed, is a question of fact for the jury.</p> <p>3. To sustain an averment of substantial performance it is competent for the plaintiff to show not only what kind of a thing was constructed and how it complied in construction and materials with the specifications, but in addition it may be shown that it was accepted by the defendant and was used for and answered the purpose intended.</p> <p>4. The acceptance of the article by the defendant, if it was not completed in compliance with the terms of the contract, does not preclude a claim for damages by way of set-off as a deduction from the contract price for imperfections and deficiencies in the work.</p> <p>5. No hard and fast rule as to the measure of damages can be laid down in this class of cases. It must depend upon the facts and circumstances of each particular case, and as applied to machinery, the character and use to which it was intended to be adopted.</p> <p>6. In an action to recover the contract price of an elevator erected by the plaintiff in the defendant’s building, where it appeared that the elevator was constructed substantially as the contract required, was accepted and used by the defendant for several years, and continues to be so used, and answers the purpose for which it was intended, and further that it could not be tom down and taken away without damage to the defendant and great cost to the plaintiff, and it might eost a great deal more to reconstruct or adjust it to agree with the contract than would be warranted by any benefit to be derived from making the alterations, the correct measure of the defendant’s damages, to be set off against the plaintiff’s claim, is the difference between the value of the elevator as accepted and its value if the contract had been complied with, to wit, the contract price.</p> <p>7. In such case if the elevator when accepted was substantially completed according to the specifications, but deficient in the sense that it failed to meet all the requirements of the contract in details of construction, the reasonable inference is that the plaintiff accepted it for what it was actually worth at that time.</p> <p>8. If, after the acceptance of the elevator, the contractor remedied the defects about which complaint was made, there could be no claim by defendant for the defects thus remedied; and if damages are claimed under a covenant of warranty for a stated period, they must relate to faulty construction or material in the elevator as constructed and accepted.</p> <p>9. In such case failure to definitely instruct as to what would be the true measure of damages is reversible error.</p>

<p>Practice, O. P. — Statements of claim — Amendments to statements — New cause of action — Statute of limitations.</p> <p>1. In an action of trespass to recover damages for personal injuries an amendment to the statement of claim averring the date of the accident to be April 26, 1907, instead of April 22, 1907, does not set up a new cause of action and may be made after the Statute of limitations has run and the plaintiff in such case is not required to file a new declaration and rule the defendant to file a new plea.</p> <p>Negligence — Master and servant — Dangerous tools — Harmless error.</p> <p>2. In such case the admission of the testimony of a fellow workman of plaintiff, describing defects in the machine at which plaintiff was working and which caused the injury was not reversible error although it appeared that the witness did not make his examination until more than an hour after the accident, where testimony to the same effect was given by two other witnesses without objection, and where a witness who was in a position to know testified that the machine remained in the same condition after the accident as before for a whole day.</p> <p>, 3. Evidence in such case to the effect that the plunger of the machine was out of order six weeks before the accident, and that the defects were called to the attention of the defendant’s foreman by the witness, a fellow workman, was not harmful where plaintiff, had testified that the machine showed the defects when he operated it and where experts stated that the defects would have a tendency to cause the condition which resulted in the accident.</p> <p>4. Where in such action it appeared that plaintiff’s eye was destroyed by a splinter of steel thrown from the machine which he was operating in defendant’s plant and which he used for cutting elliptical pieces of German silver, that the machine was equipped with a knife elliptically shaped which fitted over a die and which was fastened to a plunger with a round shank and because the knife was out of alignment with the die a splinter of steel was chipped from the edge of the knife causing the injury complained of, it was not error to admit the testimony of expert mechanics as to their opinion whether the machine was a dangerous or safe one, where the questions were objected to, on the ground that they suggested or admitted of answers that contemplated absolute safety, where the witnesses were not misled by the form of the questions, and ¡answered that the machine was not such as was in common use and was not reasonably safe for use in punching elliptical shapes where a slight turning of the die on the round shank would be likely to cause the knife to break.</p> <p>5. The court in such case made no error in refusing to affirm a point submitted by defendant to the effect that if the jury should find from the evidence that the plaintiff’s eye was destroyed on account of the negligent manner in which the die or punch was adjusted by a fellow servant the verdict must be for the defendant, where no testimony was offered in support of any such defense and where it appeared that the adjusting of the machine was done under the supervision of the foreman.</p>

<p>Negligence — Collision of teams — Skidding—Contributory negligence — Nonsuit.</p> <p>1. In an action to recover damages for injuries sustained by a collision between defendant’s team and plaintiffs team, the fact that defendant’s wagon was on the left hand side of the street instead of on the right hand side is not sufficient evidence of negligence to take the case to the jury, where it appears that defendant’s team was being driven upon the left hand side of the street in order to avoid a street ear and for the purpose of making a turn toward the right into an intersecting street.</p> <p>'2. In an action to recover damages for .personal injuries to plaintiff’s husband, resulting in his death after action brought, it appeared that decedent was driving north upon the eastern track of a double line of tracks laid upon a street with an ascending grade; that defendant’s team was going south on the same track, having turned into the same to avoid a car, and for the purpose of turning to the right into an intersecting street; that defendant’s wagon weighed 4,500 pounds, carried a load approximating 4,000 pounds, and was driven by a three horse team,; that as it approached the intersecting street the driver pulled his horses to the west with the intention of clearing the track and turning into the intersecting street; that at the time he had his horses under control and tbe team was moving at a slow walk; that he succeeded in getting his wagon off the track except the rear wheels, which skidded a distance of about thirty feet, colliding with the wagon driven by decedent, causing his death. There was no evidence of the failure of the brakes to properly perform their function. There was evidence that plaintiff’s husband was familiar with the neighborhood ¡and had a clear view ahead, and that under the circumstances he might reasonably have expected that the defendant’s wagon would skid. Held, the court did not err in entering a nonsuit.</p>

<p>Appeal, No. 299, Jan. T., 1913, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., March T., 1910, No. 2294, upon directed verdict for defendant in case of Kathleen Schmidt v. Philadelphia and Reading Railway Company, a Corporation.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court directed a verdict for the defendant, upon which judgment was entered. Plaintiff appealed.</p> <p>Error assigned was in directing a verdict for defendant.</p>

<p>Appeal, No. 218, Jan. T., 1913, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., June T., 1909, No. 2655, refusing to take off nonsuit in case of John Collins v. Philadelphia and Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Caer, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The lower court entered a nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 269, Jan. T., 1913, by plaintiffs, from judgment of C. P. No. 3, Philadelphia. Co., March T., 1909, No. 4060, entering nonsuit in case of William G. Stewart and Bertha L. Stewart v. Jacob L. Manasses.</p> <p>Trespass for personal injuries. Before Davis, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in refusing to set aside judgment of nonsuit.</p>

<p>Appeals, Nos. 329 and 330, Jan. T., 1913, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1908, No. 132, and 133, M. L. D., discharging rule for judgment for want of sufficient affidavit of defense in case of City of Philadelphia to use of- Mack Paving Company v. City of Philadelphia, Trustee of Estate of Stephen Girard.</p> <p>Sci. fa. on lien for paving. Willson, P. J., filed the following opinion:</p> <p>The claims filed in these two cases by the city to the use of the Mack Paving Company are for the price of the paving on the north side of Porter street, between Seventeenth and Eighteenth streets, in front of the premises belonging to the defendant.</p> <p>The claims are resisted upon the ground that, by virtue of the obligations assumed by the Union Passenger Railway Company in its charter obtained in 1864, and in the supplement thereto of the year 1873, that company was bound to pay the expense of paving the streets on which its tracks were laid, and remained so liable until, in pursuance of a contract made between the city and the Philadelphia Rapid Transit Company in 1907, the two companies referred to were relieved of all duty to meet such expense, for a consideration of $500,000 to be paid annually to the City of Philadelphia.</p> <p>By the original charter of the Union Passenger Railway Company, which was granted April 8, 1861, P. L. 297, it was expressly subjected to the obligation to pave streets occupied by its tracks. Porter street, however, at that time, was not included among the streets upon which the company was authorized to lay its tracks; but, by the supplement of February 19, 1873, P. L. 135, “in addition to the powers heretofore granted” that company, they were authorized “to extend and lay tracks ......on such other street or streets south of Christian street, west of Twentieth street, north of Columbia avenue and east of Third street as the Councils of the Cily of Philadelphia may from time to time permit or authorize to be used by said company, with single or double tracks.” In the second section of this supplement this provision is also found: “said company to be subject to all the restrictions and to have all the privileges and immunities in reference to said new routes and tracks as provided in the charter of said company and the several supplements thereto.” By an ordinance of March 30, 1895, councils of the. cily authorized the Union Passenger Railway Company, in accordance with its charter, to lay a single track on Porter street from Severn teenth to Eighteenth street. That street was probably not within the limits designated, as before stated, in the Act of 1873. . .</p> <p>It seems to us, however, from what has been said, to follow as a necessary conclusion that the Union Passenger Railway Company, by virtue of the acts of assembly and of the ordinance of 1895 before mentioned, became subject to the obligation, when it laid its track as it did in.; Porter street, either to pave the said street, or to.pay the cost of paying it. It seems to us also that it is a proper conclusion to reach that, when the legislature imposed such a duty upon the passenger railway company, it thereby relieved the property owner from what would otherwise be its duty with reference to paying the cost of paving.</p> <p>The state of affairs that has already been described continued until the year 1907. On April 15, 1907, the Act of Assembly (P. L. 80) was approved, which enacted “that it shall and may be lawful for any city...... of the one part, and any street passenger railway...... of the other part, to enter into contracts with each other, affecting, fixing and regulating the franchises, powers, duties and liabilities of such companies......Such contracts may in law provide for payments by the companies to the local authorities in lieu of the performance of certain duties, or the payment of licenses, fees, or charges imposed in favor of such city, borough or township by the charters of the respective companies, or by any general law or ordinance......” In pursuance of that act of assembly, councils of the city passed an ordinance, which was duly approved, providing for the making of a contract between the city and the Philadelphia Rapid Transit Company, and section 10 of that ordinance reads as follows: “The company shall, in addition to the other payments hereinbefore provided...... pay into the city treasury each year the sum of $500,-000 in cash......which payments, when made, shall be in lieu and satisfaction of all obligations and liabilities on the part of the company and its subsidiary companies for the paving, repaving and repair of all the streets occupied by their surface lines.......”</p> <p>The contract thus authorized was executed, and the obligation originally assumed by the Union Passenger Railway Company was thereby extinguished.</p> <p>In our opinion, it is a reasonable and proper construction to give to the contract thus made, that, for reasons satisfactory to the municipal authorities and for the consideration of the large sum which it was stipulated the city should receive each year, it, the City of Philadelphia, assumed, in the place of the passenger railway companies, the duty of meeting such expenses connected with the paving of streets as the passenger railway companies were orginally bound to discharge. It thereby seems to us that, by implication, the city thus relieved the property owner from a burden which, otherwise, he or it would have been obliged to carry. We do not think that the mere fact that nothing was contained in the ordinance expressly exempting the property owner from such a burden constituted a shifting of the burden from the passenger railway company to the property owner. In other words, it seems to us that the city must be regarded as having fixed, as the amount which would represent the cost of paving the streets, the large lumping sum which, under the contract, it was to receive yearly, and the city cannot, with propriety, be allowed to collect this sum both from the railway company and from the property owner.</p> <p>The position of the use-plaintiff in these cases is, of course, no better than that of the city, for it is, after all, the city which files the claims, or in whosé right thése claims are filed. The use plaintiff stands upon no higher ground than the city itself.</p> <p>If it shall appear that, in the treatment of these cases, we have referred to matters which are not strictly upon the record, we have this to say, that all the matters referred to are set forth either in the affidavit of defense or in the briefs which have been submitted to ús by the counsel, and about these matters there was no contention at the argument of the case.</p> <p>It follows from what has been said, that, in our opinion, the rules for judgment, which have already been discharged, were properly so treated.</p> <p>The court discharged plaintiff’s rule for judgment for want of a sufficient affidavit of defense. Plaintiff appealed.</p> <p>The City of Philadelphia was granted leave to file a, paper book as an appellant on the ground that if the defendant was not liable for the claims for paving in question the city would be compelled to pay.</p> <p>Error assigned was in discharging plaintiff’s rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 312, Jan. T., 1913, by defendant, from judgment of C. P. No. 3, Philadelphia Co., March T., 1900, No. 712, on verdict for plaintiff in case of Mark C. Higbee v. Atlantic City Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The jury found a verdict for the plaintiff in the sum of $7,500. The defendant moved for a new trial and for judgment non obstante veredicto. The court refused the motion for judgment and directed a remittitur of all above the sum of $2,000, which was filed and judgment entered for the plaintiff in the sum of $2,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for the defendant and in overruling motion for judgment non obstante veredicto.</p>

<p>Judgment — Judgment by confession — Opening judgments — Bonds — Mortgages—Sufficiency of evidence upon rule to open judgment.</p> <p>1. An insurance company loaned $70,000 to a power company, secured by bond and mortgage. When the loan was made alterations were in progress on the mortgaged property. To secure the insurance company against mechanics’ liens a bond in the sum of $70,000 was executed, in which the power company was principal and a bonding company was surety. The bond recited the execution of the bond and mortgage and the fact that the building erected on the property was not fully completed and contained /a condition that if mechanics’ liens filed after the recording of the mortgage were discharged the obligation was to be void, and a further stipulation that the surety, if compelled to make payment on account of the bond, should be entitled to an assignment of the bond and mortgage upon the payment to the insurance company of all money due thereunder, together with costs, fees, etc. The bond contained a confession of judgment. After the completion of the building liens were filed for material and labor. Default was made in payment of interest on the mortgage and thereupon the principal became due and the mortgage was sued out. The mortgaged property was purchased by the insurance company at the sheriff’s sale for $16,000. Upon distribution of the proceeds by an auditor there was awarded in payment of mechanics’ liens, together with costs, etc., the sum of $11,000. The insurance company then entered judgment against the power company as principal and the bonding company as surety upon the bond given as security against mechanics’ liens and damages were assessed in the sum of $11,000. Upon a petition by the bonding company to open the judgment it appeared that tender had been made by the surety company to the insurance company of the debt, interest, costs, and amount of the mechanics’ liens and a demand made for the transfer of the title under the stipulation in the bond, but that this tender was not made until after the sheriff’s sale of the property. Held, that the petition to open was properly dismissed.</p> <p>2. In such case held further that there was no error committed in refusing to open the judgment upon the ground that there had been an understanding between counsel for the insurance company and counsel for the bonding company whereby the latter refrained from bidding at the sale under the belief that the property was to be purchased for the benefit of the bonding company where the testimony upon this point was confined to that of counsel for the bonding company on the one hand and contradicting testimony by counsel for the insurance company on the other.</p>

<p>Appeal, No. 231, Jan. T., 1913, by Carlotta H. Browne, from decree of O. C., Philadelphia Co., Jan. T., 1883, No. 143, sustaining exceptions to adjudication in Estate of Ann Eudman, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court sustained exceptions in an opinion filed by Lamorelle, J.</p> <p>Errors assigned were in sustaining the exceptions.</p>

<p>Wills — Personal properly — Life estates — Construction—Intention.</p> <p>T.'The court .is bound to give effect to every word in a will without change or rejection, if any effect can be given not inconsistent with the general effect of the whole instrument.</p> <p>2. Where a testatrix left her residuary estate in trust to “divide and pay over the same......subject to my directions as hereinafter mentioned......and to pay unto my several heirs the interest and income, according to their respective shares as follows, viz: To a daughter two thousand dollars, the interest'or income to be paid to her, during her natural life and immediately after her decease the principal sum or income thereof to be paid to my niece......during her lifetime, in the event of her death to be equally divided between my nieces (naming them),” the gift of the principal gum or the income thereof to the first niece during her lifetime is properly construed to be a gift of a life estate in the fund.</p>

<p>Negligence — Actions for death — Conflict of laws — Act of April 15, 1851, Sec. 19, P. L. 669 — Railroads—Grade crossings — Duty to warn of approaching train — Sudden emergency — Case for fury.</p> <p>1. Section 19 of the Act of April 15, 1851, P. L. 669, providing that when “death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased......</p> <p>may maintain an action for and recover damages for the death thus occasioned,” creates a new cause of action unknown to the common law and the cause of action contemplated by the statute is the tort which produces death and not the death caused by the tort.</p> <p>2. A suit for damages for the death of a person is transitory and may be maintained in any jurisdiction where the writ can be served but it must he brought under the statute of the state where the cause of action arose.</p> <p>3. In such case where the acts of negligence occur in Pennsylvania and the death occurs in New Jersey the action is properly brought by the widow under the Pennsylvania statute.</p> <p>4. "Where one in a place of peril attempts to escape the danger to which he is exposed by the negligence of another no want of eare can be imputed to him if he acts in good faith and as a person of ordinary prudence would act under similar circumstances and he is not hound to pursue the safest and wisest course in attempting to avoid the danger; whether he acts as a prudent man should is for the jury.</p> <p>5. In an action brought by a widow to recover damages for the death of her husband, which occurred in New Jersey, the case is for the jury and a verdict for the plaintiff will "be sustained where it appears that the plaintiff, together with several fellow-employees, was riding in a wagon which his employer was driving in the State of Pennsylvania; that as they approached defendant’s four track railroad the driver stopped, looked in both directions, and listened for an approaching train, and not seeing or hearing any started across the track; that no signal of an approaching train was given; that after passing the first two tracks and while the horse was on the third a train was seen on the fourth track at a distance of six hundred feet and moving at the rate of seventy-five miles an hour; that the driver whipped the horse so that it crossed the fourth track at an increased speed and avoided a collision; and that thereafter the deceased was found lying injured on the track where it was admitted he had been struck by. the train; but there was no evidence to show whether he had jumped from the wagon or had been thrown therefrom.</p>

<p>Appeal, No. 273, Jan. T., 1913, by defendant, from decree of C. P. No. 5, Philadelphia Co., March T., 1912, No. 2733, in Equity, directing the sale of real estate in partition proceedings in case of John D. Kennedy v. Edward F. Condran, and Grace M. Condran.</p> <p>Bill in equity for the partition of reai estate. Exceptions to the report of Thos. Ridgway, Esq., master. Before Ralston, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Edward F. Condran appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Judgments — Opening judgments — Assignee—Collateral security —Promissory notes — Assignment of judgment as collateral security — Bona fide holder for value — Fraudulent transaction— Duty to inquire — Evidence—Forgery—Unconscionable bargain.</p> <p>1. Where a judgment note is taken as collateral security for a promissory note, and the promissory note together with the judgment entered upon the judgment note is assigned to another, the assignee as a general rule takes the judgment free from all defenses except those which might be set-up against the promissory note. There is an exception to this rule, however, where there is a dispute as to the fact of the judgment being collateral to tha note, or whether the assignee was an innocent holder for value before maturity, or that no duty rested on the assignee to make inquiry by reason of the undisputed character of the transaction. If the facts are disputed or the transaction is of such a character as to require a prudent man to make inquiry before taking an assignment, the assignee may be chargeable with notice of such defenses as could have been set up between the original parties, which inquiry would have brought to his attention.</p> <p>2. Upon an application to open a judgment, where the defendant alleges that the note, by virtue of which the judgment was entered, was a forgery, the writing is hot of weight in determining the issue, and raises no presumption to .be overcome. In such case the burden of establishing the genuineness of the note is on the plaintiff in the judgment, and where there is clear evidence to sustain the averment that the note was a forgery, the judgment (should be opened, notwithstanding such testimony may be contradicted.</p> <p>3. A judgment entered upon a warrant of attorney contained in a judgment note was opened where it appeared that the judgment note had been given as security for a promissory note executed and delivered by defendant in the judgment to the legal plaintiff, in payment for the lease, furniture and furnishings of a so-called hotel property, in reality a disorderly house; that the total value of everything transferred did not exceed $500.00, although the amount of the promissory note was $6,000.00; that the judgment note was assigned on the following date to a woman who had no money to purchase such a security; that judgment was entered on the note and the record was subsequently marked to the use of the use-plaintiff, who made no inquiry about the character of the transaction, the good faith of the parties or the nature of any defenses which might be interposed, although the circumstances under which the notes were negotiated to him were sufficient to put him upon inquiry as to the nature of the original transaction; that the defendant in the judgment testified that the note was a forgery, and she was corroborated by other witnesses who knew her signature, and by the circumstances of the transaction.</p>

<p>Appeal, No. 213, Jan. T., 1913, by defendant, from judgment of C. P. No. 4, Philadelphia Co., June T., 1912, No. 142, on verdict for plaintiff in case of Myles Higgins and Frederick C. Simons, Trading as Higgins, Higgins & Simons, to the Use of •Myles Higgins, v. W. M. Ostrander, Incorporated, defendant, and Franklin Trust Company, garnishee.</p> <p>Assumpsit for legal services. Before Audenried, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $3,263.77, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were certain portions of the charge, and in overruling defendant’s motion for a new trial.</p>

<p>Appeal, No. 338, Jan. T., 1913, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., Sept. T., 1910, No. 3066, sustaining demurrer to plaintiff’s statement of claim in case of Barzillai Ridgway v. Philadelphia and Reading Railway Company.</p> <p>Trespass to recover damages suffered by plaintiff for depreciation in value of his property caused by the elevation of tracks of defendant company. Before Staake, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Defendant demurred* to the statement of claim. The court sustained the demurrer. Plaintiff appealed.</p> <p>Error assigned was in sustaining the demurrer.</p>

<p>Contracts — Indemnity contract — Casualty insurance — Duty of insurer — Accident claim — Control of defense — Bight of insured to settle.</p> <p>In an action against an insurance company upon a policy indemnifying tbe plaintiff against loss by reason of liability imposed by law upon it for damages on account of bodily injuries accidently suffered by any person by the maintenance and use of certain automobiles, to recover as damages an amount which the assured was compelled to pay upon a judgment, in excess of the amount it would have had to pay if a settlement had been effected, a judgment entered for the defendant upon demurrer is proper, where it appeared by the statement of claim that the policy provided that “the assured shall not voluntarily assume any liability or settle any claim except at his own cost,” that the insurer “will at its own cost defend against” all suits, and that the insurer “shall not be liable hereunder on account of one person or one accident in excess of the limits of liability applicable thereto as expressed in said declarations, except for the expense incurred by the company in defending suits brought against the assured;” that while the policy was in force an action was brought against the plaintiff company to recover for an injury caused by one of its automobiles; that the plaintiff company requested the insurer to make a settlement of the claim for an amount in excess of the insured’s limit of liability and offered to contribute the difference; that the insurance company refused to make the settlement and went to trial, which resulted in a judgment in a larger amount against the plaintiff, which it paid; and that the refusal of the insurance company to settle caused a loss to the plaintiff of the difference between the judgment it paid and the insurance money it received less the sum which it was willing to contribute to the settlement proposed.</p>

<p>Negligence — Railroads—Shippers—Proper appliances— Freight station — Unusual use — Negligent use — Nonsuit.</p> <p>1. A defendant who furnishes proper appliances is under no duty to take precaution against an unusual and negligent use of such appliances by others.</p> <p>2. In an action against a railroad company to recover damages for personal injuries sustained by being struck by defendant’s train, the court did not err in entering a compulsory nonsuit where it appeared that at the station where the plaintiff was injured there was a small frame building into which shippers of milk placed their cans; that the building had three doors, a wide door on the south side from which the cans were received from the wagons, a similar door on the north side from which they were loaded on the trains, and a small door on the west side which the shippers used as a means of access to the building; that when the weather was cold or stormy the shippers closed the door on the west side and fastened it from the inside, so that it became necessary to enter by using the steps on the west side, the only steps to the building, and walking along a narrow ledge some six or eight inches in depth and about three feet in length, to either the north o'r south platform; that there was no fault in the construction or maintenance of said building, and it was safe when used in the way it was intended to be used; that no agent was kept at the station and delivery of the cans to the car door was in entire charge of the shippers; that on the morning of the accident plaintiff placed his cans in the building knowing that the door was fastened from the inside and that when he returned he would not be able to enter the building through it; and that when he heard the train coming he went up the steps and from-the top of them attempted to reach the north platform by stepping on a narrow ledge, and around the corner of the building, and in so doing fell and was struck by the train.</p>

Appeal, No. 216, Oct. T., 1913, by defendant, from judgment of O. P. Allegheny Co., Jan. T., 1912, No. 186, on.verdict for plaintiff in case of Frank Wagner v. Standard Sanitary Manufacturing Company. Trespass to recover damages for personal injuries. Before Frazer, P. J. The opinion of the Supreme Court states the case. Verdict for plaintiff for $5,625.00, and judgment thereon. Defendant appealed.

<p>Appeal, No. 184, Jan. T., 1914, by defendant, from judgment of C. P. No. 2, Pbiladelphia. Co., March T., 1912, No. 254, on verdict for plaintiff in case of Edward P. Flannery v. Charles M. Wessels.</p> <p>Assumpsit for breach of contract for the purchase of stock from plaintiff. Before Barratt, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,538.33 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, were various rulings on evidence, 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>Negligence — Master and servant — Guarding dangerous machinery — Act of May 2, 1905, P. L. 852 — Contributory negligence— Nonsuit.</p> <p>1. The owner or proprietor of an industrial establishment has performed his full duty to guard dangerous machinery as required by the Act of May 2, 1905, P. L. 352, where he has furnished a suitable guard for such machinery, and where an employee is injured during the temporary absence of such guard, the master is not responsible where it does not appear that he had either actual or constructive notice of the absence of the guard in question.</p> <p>2. Plaintiff, a man thirty-four years of age, who. had had fifteen years’ experience in manufacturing establishments, using machinery of the same general character as that in defendant’s plant, and who had been employed by defendant for about five months and had acted as foreman in the department in which he was injured for at least three weeks, suffered injury in consequence of catching his hand in unguarded cogs while he was standing in a narrow space and endeavoring to oil running machinery. The defendant had supplied a proper guard for the cog wheels hut it was not in place at the time of the accident. It did not appear how the guard had been removed, but the room in which it was, was under the general control of the plaintiff and it was his duty to see that it was in place. There was an experienced oiler supplied by defendant to oil the machinery. The plaintiff testified that he did not particularly notice whether the guard was on or not when he stepped into a narrow dark space behind machinery running at full speed, and endeavored to oil it. Held, that a compulsory non-suit was proper.</p>

<p>Sheriff's sale — Setting aside sale — Notice—Inadequacy of price —Discretion of Court.</p> <p>1. The setting aside or refusing to set aside a sheriff’s sale is in the sound discretion of the court below and unless there is gross and manifest abuse of that discretion its decree will not be disturbed on appeal.</p> <p>2. A refusal to set aside a sheriff’s sale upon petition of the executor of a deceased part-owner of the property was sustained where the only grounds properly pleaded for setting aside the sale were lack of notice and inadequacy of price, and it appeared that the petitioner had not set up lack of actual notice in the court below, which court had found that the proceedings were regular and that the returns were sufficient; and it further appeared that the mortgage under which the property was sold was an old one upon which the petitioner’s decedent had no personal responsibility, that the accompanying bond had no value; that the real cost to the purchaser was substantial; and that the petitioner neither tendered a price above the purchaser’s bid at the sheriff’s sale nor offered to secure a purchaser at a higher figure, nor did he provide a bond in the usual form to guarantee a better bid.</p>

<p>Appeals — Assignment of error — Practice—Record.</p> <p>1. The assignments of error filed in the Supreme Court are an essential part of the pleadings and disclose the issues upon which the court must pass and to which it is confined. Questions not raised by the assignments, which might have been raised upon the record, will not be passed upon.</p> <p>2. An appeal in which the errors assigned are the refusal of the court to grant a new trial or to enter judgment for plaintiff non obstante veredicto in a proceeding under the Act of April 20, 1905, P. L. 239, to obtain possession of real estate purchased at sheriff’s sale, cannot be sustained where it appears that upon the trial of the issue and at the close of the plaintiff’s case the court, on motion of the defendant and under plaintiff’s exception, struck out all of the plaintiff’s testimony and directed the jury to find a verdict for the defendants, which action was not assigned as error upon the appeal.</p>

<p>Negligence — Master and servant — Contributory negligence— Contradiction of plaintiff’s testimony by Ms witnesses — Case for jury.</p> <p>1. If on the whole evidence in behalf of a plaintiff, his own testimony is overthrown by that of his own witnesses, in such number and weight that the court could not support a verdict in his favor, then it would become the duty of the court to direct a nonsuit or a verdict. But such case should be clear and without doubt. If there is a doubt it must go to the jury.</p> <p>2. In an action to recover damages for personal injuries, where it appeared that plaintiff was employed by the defendant company for outside work at its colliery and on the morning of the accident he was directed by the foreman to leave the work at which he was engaged and follow him to another part of the works, and where plaintiff testified that in following the foreman along a well defined path used by workmen that led over a culm bank, he was seriously injured by stepping into a large open barrel of -hot water, which was sunk to within two inches of the surface of the bank and was located in or close to the edge of the path; that he had not before been over the path and did not know of the location of the barrel and at the time did not see it because he was blinded by the sudden escape of'steam from it or from pipes that led to it, the case was held to be for the jury, although two of plaintiff’s witnesses gave testimony in harmony with the theory of the defendant’s and contradictory of the plaintiff’s statements.</p>

Appeal, No. 349, Jan. T., 1913, by defendant, from decree of C. P. Schuylkill Co., September T., 1911, No. 6, upon bill in equity in tbe case of Milton H. Master v. Samuel G. Roberts. Bill in equity for specific performance of contract for tbe sale of real estate.

<p>Negligence — Master and servant — Act of May 2, 1905, P. L. 352 —Guarding machinery — Practicability of guard — Charge to jury.</p> <p>1. Tbe words “properly guarded” in tbe Act of May 2, 1905, P. L. 352, mean suitably guarded, and the requirements of the act do not apply where it is impracticable to guard the machine artificially without rendering it useless for the service it usually performs.</p> <p>2. In an action to recover damages for personal injuries due to the alleged failure to properly guard a dangerous machine, a verdict for the defendant will be sustained where there is evidence that at the time the accident to the plaintiff occurred it was not practicable for the employer to safeguard the machine against such accidents without seriously impairing the efficiency of the machine; and that no device was then known by the use of which the one operating such machine could be protected against the danger to which the operator was exposed and from which the plaintiff suffered his injury.</p> <p>3. In such case it is not material whether the machine causing the accident was one of those specifically enumerated by the Act of May 2, 1905, P. L. 352, in view of the fact that machinery of every description must be properly guarded under the terms of that act.</p>

<p>Wills — Codicils—Lost will — Probate of early will — Codicil to lost will.</p> <p>1. A codicil shown to have been made to a will, the contents of which are unknown, and which is neither produced nor accounted for, may not be engrafted on an earlier will, and probated as part thereof, in the absence of evidence from which an inference can be drawn that such codicil was intended by the testatrix to be associated with the earlier will.</p> <p>2. A testatrix executed two wills on different dates, and thereafter a codicil to the later will. The later will could not be found after testatrix’s death, and the earlier will and the codicil to the later will were admitted to probate. So much of the decree of the register of wills as admitted to probate the earlier will was not appealed from, but the validity of the codicil was questioned. Held, that the codicil to the later will, though disposing of the entire estate, could not be probated as testatrix’s will, the existence of another testamentary paper as the will of the testatrix having been established by a decree which was not appealed from, and the codicil could not be probated as a codicil to the earlier will, in the absence of evidence that the testatrix intended the instruments to be associated as her will.</p>

<p>Appeal, No. 174, Jan. T., 1913, by defendant, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1909, No. 3998, on verdict for plaintiffs in case of Thomas Ollis and Emma Ollis v. Philadelphia Eapid Transit Company.</p> <p>Trespass to recover damages for the death of plaintiffs’ minor child. Before McMichael, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The jury found a verdict for plaintiff for $3,018.25, which the court in banc subsequently reduced to $2,250 upon which judgment was entered.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for defendant, and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 119, Jan. T,, 1913, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1912, No. 6060, for want of a sufficient affidavit of defense in case of Moving Picture Company of America v. Scottish Union and National Insurance Company of Edinburg.</p> <p>Assumpsit on a policy of fire insurance.</p> <p>Rule for judgment for $2,500, as to which sum the affidavit of defense was alleged to be insufficient. Before Willson, P. J.</p> <p>From the record it appeared that the action was on an insurance policy in the sum of $5,000, issued 21st February, 1911, by the defendant company, insuring the plaintiff company “against all direct loss or damage by fire......to the following described property while located and contained as described herein, and not elsewhere, to wit, On the Rents of the Brick Buildings and Additions, including additions and extensions, situate 926-928 Market Street, Philadelphia, Pennsylvania, rear of Nob. 920-22-24 Market Street.” The statement of claim averred that at the time of the execution and delivery of the policy of insurance, prior thereto, and at the time of said fire (13th January, 1912) the plaintiff company leased the first floor of said described premises, which consisted of three floors, under an agreement dated 19th January, 1909, the lease containing the following provision: “Lubin further agrees to and hereby does sublet to the company the first floor of premises Nos. 926-928 Market Street, Philadelphia, for the remainder of the term during which Lubin is in possession of the sáid premises, as tenant under lease with Felix Isman, agent, dated April 4, 1907, for the yearly rent or sum of $14,000, payable monthly in advance, in sums of $1,166.66, on the first day of each month, during the said term; rent to begin from July 20th, 1909.” The statement further averred that at the time of the execution and delivery of the insurance' policy, and prior thereto and from thence during all the years thereinafter set forth, the plaintiff leased the first floor of said premises to the Royal Amusement Company, a corporation, &e., at a rental of $1,166.67 per month, or $14,000 per year, which rental was during all of said times the fair rental value of the said demised premises; that said lease was dated 23d day of July, 1909, and was for a period of ten months, that a provision that either party might determine the same by giving to the other party three months’ notice prior to the expiration of the term, but in default of such notice, the lease should continue from year to year; that said lease was so continued at the end of each current term thereof by failure of either party to give notice to determine the same during the times hereinafter set forth; that this lease contained the provision that in the event of the total destruction of the demised premises by fire the rents should cease from the date of such fire and possession of the demised premises should be surrendered by the lessee to the lessor. It was averred further, that in July, 1910, the said premises 926-928 Market street, were purchased by Max and Adolph Berg; that on the 13th January, 1912, the leased premises and the entire building were totally destroyed by fire, and that the rent therein ceased in accordance with the terms of the lease; that while the time necessary to restore the premises to the same tenantable condition as before the fire would have been six months, yet the building laws of the State prevented the restoration of the premises to the same condition as they were in before the fire, and, finally, that since the date of the fire the said Royal Amusement Company, plaintiff’s lessee, had not paid any rent whatever to plaintiff; that plaintiff had not received since the fire any rent from, the defendant, or any other person for the said premises. The action was to recover a full loss under the policy, to wit, the sum of $5,000 with interest. To the cause of action as thus stated the defendant company filed an affidavit of defense in which it was averred, 1st, that the premises destroyed could have been restored within six months from the date of the fire to the same condition they were in before, notwithstanding any building laws of the State; 2d, that by reason of the fire the plaintiff did not sustain any loss by reason of any conditions or provisions contained in the insurance policy, but that the Royal Amusement Company made no payments of rent for any time after the fire solely because of the condition in its lease releasing it from all liability for payment of rent in the event of the total destruction of the demised premises; 3d, that said Sigmund Lubin (plaintiff’s léssor) was a tenant under Felix Isman, agent for the owner under a. lease dated April 4, 1907, which demised to Isman the entire premises 924-928 Market street, and which contained the following provision: “In the event of the total destruction by fire, or total destruction by other casualty, the rent shall cease from the date of such fire, or other casualty, and possession of the premises shall be surrendered by the lessee to the lessor”; 4th, that about 19th January, 1912, Max Berg and Adolph Berg, the then owners of the above premises, notified Lubin in writing that under the terms of his lease they had taken possession of the premises, said lease having expired by reason of the fire, and at the same time returned to Lubin the sum of $1,280.83 unearned rent paid by Lubin for a period subsequent to said fire, and that a copy of this notice had at the same time been served upon this plaintiff, and that thereafter the Bergs had exclusive possession of the premises. The affidavit concluded with the statement, that since the time of the fire no liability has existed on part of plaintiff to pay rent to Lubin, and no liability has existed on the part of the Royal Amusement Company to make payment of rent to the plaintiff. A rule was taken by the plaintiff for judgment in the sum of $2,500, as to which amount the affidavit was averred to be insufficient, with leave to the plaintiff to proceed for the balance. This rule was made absolute, the court adjudging the affidavit insufficient except so much of it as averred that the burned premises could have been restored within six months, and ordered judgment for so much as represented the alleged loss of rent for a period of six months, with leave to plaintiff to proceed for the balance of its claim. Defendant appealed.</p> <p>Error assigned was the order of the court,</p>

<p>Appeal, No. 236, Jan. T., 1913, by defendants, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1911, No. 5052, on verdict for plaintiff in case of J. Howard James v. Nathan Snellenburg, Simon L. Block, Samuel Snellenburg, Joseph Snellenburg, Abraham Snellenburg, Harry Snellenburg, Morton E. Snellenburg, Harry M. Nathanson, Bernard Block, co-partners, trading as N. Snellenburg & Company.</p> <p>Trespass to recover damages for personal injuries. Before Bregy, P. J.</p> <p>The opinion of the Supreme Court states the facts. .</p> <p>Verdict for plaintiff for $2,500 and judgment thereon. Defendants appealed.</p> <p>Errors assigned were in refusing to direct á verdict for defendants and to enter judgment for defendants n. o. v.</p>

<p>Appeal, No. 233, Jan. T., 1912, by Emma V. Litle, from decree of O. C. Philadelphia Co., Oct. T., 1912, No. 159, dismissing exceptions to adjudication in Estate of Thomas J. Litle, Deceased.</p> <p>Exceptions to adjudication. Before Gummey, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Equity — Equity practice — Averments of actual fraud — Evidence of constructive fraud — Allegata and probata.</p> <p>1. The failure of a complainant in a bill in equity to sustain by evidence a positive averment of actual fraud, will not entitle the defendant to a dismissal of the bill when there is proof of constructive fraud.</p> <p>Corporations — Directors—Fraud—Actual and constructive fraud —Rights of minority stockholders — Equity—Injunction—Voidable contracts — Ratification by stockholders.</p> <p>2. The directors of a corporation are bound to administer its affairs with strict impartiality, in the interest of all the shareholders alike; and the inability of minority stockholders by their own efforts to protect themselves against unauthorized acts performed with the connivance of the majority, renders their right to the protection of the courts the more clear.</p> <p>8, A lease of the entire property of a corporation to another corporation in which the directors of the lessor who vote for the lease are financially interested, when another equally responsible party stands ready, and offers to pay a much greatér rental for the same property, and the directors of the lessor have knowledge of such offer, is, except as otherwise explained, an actual fraud; and if the directors -who vote for such lease are not financially interested in the lessee, the law would condemn the transaction, unexplained, as a constructive fraud upon dissenting stockholders.</p> <p>4. While a corporation may ratify voidable contracts made by its directors, ratification is not proved by showing that the majority stockholders of a corporation in subservience to whose interests the directors made a voidable contract, subsequently voted to approve the action of the directors, against the protest of the minority.</p> <p>5. On the hearing of a bill in equity brought by the minority stockholders of a theatre company to enjoin the renewal of a lease of all the corporate assets of such company to an amusement company, it appeared that one of the directors of the plaintiff’s corporation owned a large majority of the stock in the amusement company; that the.three directors who voted to authorize the making of the lease at a meeting at which, five directors voted, were the sons of two stockholders who owned the majority of the stock in the amusement company, and had received their stock in the theatre company which qualified them to act as directors as a gift from their respective fathers; and that such directors, with their fathers, owned a majority of the stock of the theatre company. The lease complained of provided for the payment of an annual rental of $22,500, while a third party, equally responsible, had offered and was ready to pay an annual rental of $30,000 for a lease on the same terms in other respects. The two directors who voted against the¡ lease owned a minority of the stock of the theatre company and owned no stock in the amusement company. At' a meeting of the stockholders of the theatre company the stock owned or represented by the three directors who voted for the lease was voted to ratify the action of the board, and the stock owned by the directors who voted against the making of the lease was voted to disaffirm the action of the board. The controlling stockholder of the amusement company was its president and manager and if the lease were executed he would have had charge of the management of the theatre, which had been conducted along successful lines, but by its terms the lease was assignable with the consent of the lessor. Held, that the lower court erred in dismissing the bill.</p>

<p>Appeal, No. 226, Jan. T., 1913, by plaintiff, from decree of C. P. No. 3, Philadelphia Co., March T., 1913, No. 1931, dismissing bill in equity for an injunction in case of W. Percival Johnson v. Lewis Jones and Daniel Crawford, Jr.</p> <p>Bill in equity to enforce a building restriction. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on hearing on bill and answer dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was. the decree of the court.</p>

<p>Appeal, No. 245, Jan. T., 1913, by plaintiffs, from judgment of C. P. No. 4, Philadelphia Co., June T., 1910, No. 1682, of nonsuit in case of James Christian, Jr., by His Next Friend and Father, James Christian, and James Christian v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Willson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge entered judgment of nonsuit, which the court in banc subsequently refused to take off. Plaintiffs appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 274, Jan. T., 1913, by plaintiff, from decree of C. P. No. 3, Philadelphia Co., March T., 1911, No. 4216, dismissing bill in equity in case of Wistar P. Brown and Wistar P. Brown, Administrator of Emma H. Brown, Deceased, v. Smith E. Hughes, Edward M. Hughes, and Julia A. Hughes and Edward M. Hughes, Executors of Smith E. Hughes, Deceased, Substituted Defendants.</p> <p>Bill in equity for specific performance of contract to devise real estate. Before McMichael, P. J,</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were various findings of fact and law of the trial judge.</p>

<p>Wills — Execution of will — Charitable devise — Attesting witnesses — Interest of witnesses — Employees' of corporation beneficiary — Act of April 26, 1855, P. L. 828.</p> <p>1. A witness is not incompetent on the score of interest unless be has a certain and not a possible benefit in the event of the suit or in the matter in controversy, and an agent, servant or employee is a competent witness for as well as against his employer. A disinterested witness is one who has no legal interest and a credible witness is one not disqualified to testify.</p> <p>2. If a testator’s signature at the end of a will subject to the provisions of the Act of April 26, 1855, P. L. 328, was duly attested by two credible and at the time disinterested witnesses, it matters not who drew the instrument or under what circumstances it was drawn.</p> <p>3. Where a testator’s signature at the end of a will containing a devise to a charity is attested by four witnesses, two of whom are credible and disinterested, within the meaning of the statute, the testator has complied with its requirements, and it is immaterial whether or not the other two witnesses were disinterested.</p> <p>4. A testamentary devise to charity is not invalidated under the provisions of the Act of April 26, 1855, P. L. 328, by the fact that the two necessary attesting witnesses were salaried employees of a corporation which was made trustee for a charity under the will at a stated compensation.</p>

<p>Decedent’s estate — Wills—Husband’s election to take against will — $5,000 preferential claim — Real estate — Election to take read estate — Read property subject to specific devise.</p> <p>1. When a surviving wife or husband elects to take against the other’s will, there are as to her or him no legatees or devisees to be considered. The estate is to be distributed as that of an intestate under the intestate laws of the State, of which the Act of April 1, 1909, P. L. 87, is a constituent part.</p> <p>2. Where a testatrix leaves surviving her a husband but no issue and the husband elects to take against her will and claims the sum of $5,000 out of her estate under the provisions of the Act of April 1, 1909, P. L. 87, a devisee of a particular tract of land belonging to the decedent cannot complain because he chose to take a portion of that sum in real estate and there was set apart to him the land specifically devised to her, even though the pecuniary legacies and the residuary estate of the deceased exceeded the sum of $5,000.</p> <p>3. In such case when a husband elects to take a portion of his preferential claim in land, his right is to select any piece of his wife’s real estate that he chooses, for the procedure for selecting and setting apart to him $5,000, in value of the property of his wife is the same as is provided by the Act of April 14, 1851, P. L. 612, relating to widow’s exemptions.</p>

<p>Trusts and trustees — Death of trustee — Appointment of successor — Church property — Act of April 14, 1828, P. L. '458 — Qualification of petitioner — Pleading—Conclusion of law — Sufficiency of answer.</p> <p>1. An answer to a petition must not only be responsive but must also aver facts and not conclusions of law. The respondent must meet by his answer all the material facts averred in the petition, and it is for the court and not for the respondent to determine the law upon the facts averred.</p> <p>2. The Act of April 14, 1828, P. L. 453, authorizing and empowering the court to appoint trustees in all cases of vacancies in consequence of the death of a trustee, on application of the cestui que trust, “or other person or persons interested in the execution thereof,” is still in full force and effect, and applicable in cases of vacancies caused by death of the trustee of church property as well as other property in cases within the language of the act.</p> <p>3. A petition by two members of the congregation of a church praying for the appointment of trustees in the place of a former trustee who has died, avers sufficient facts to give the court jurisdiction under the Act of April 14, 1828, P. L. 453, for the appointment of trustees as successors to the deceased trustee, where such petition substantially alleges that a number of tracts of land were purchased by the congregation of the church and the title was taken in the name of a certain designated trustee in trust for the uses and purposes of the.said congregation; that such trustee has died; and that the congregation authorized petitioners to file a petition in its name to have trustees appointed in the place and stead of the deceased trustee.</p> <p>4. In such case the answer of the respondent is insufficient where it avers that the resolution set forth in the petition does not show that the meeting of the congregation authorizing the appointment of trustees was such a meeting as is required by law to be held for the purpose of effecting the object sought to be effected by such resolution, where there is no averment of facts setting forth in what respect the meeting did not comply with the law.</p> <p>5. Two members of the congregation of a church are such “persons interested in the execution of the trust” as may, under the Act of April 14, 1828, P. L. 453, petition the court for the appointment of a trustee of the church property where the trusteeship is vacant on account of the death of the former trustee, and it is immaterial whether or not there had been a congregational meeting authorizing such petition.</p>

<p>Negligence — Railroads—Infant trespasser — Duty of trainmen— Case for jury.</p> <p>1. There is no obligation resting on the employees of a railroad company in charge of a train to search for infant trespassers before starting the train from a station, but they are under a duty not to start a train when they actually see that an infant trespasser is in a place of danger.</p> <p>2. In an action against a railroad company to recover damages for personal injuries the case is for the jury and a verdict for the plaintiff will be sustained where it appears that the plaintiff, a child five years of age, was sitting on the steps of one of the cars of defendant’s train just before it left the station, and was injured by falling under the wheels as the train started. The testimony of one witness was sufficient to sustain the finding that before putting the train in motion the conductor saw the plaintiff sitting on the steps of the car.</p>

<p>Corporations — Failure to record certificate — Liability of subscribers — Liability as partners — Act of April 29, 187If, P. L. 78— Fraud — Estoppel—Judgment against corporation — Individual liability — Practice, C. P. — Service—Execution—Amendments—Statute of limitations — Bill in equity.</p> <p>1. The recording of the certificate of incorporation “in the office for the recording of deeds, in and for the county where the chief operations are to be carried on” is made a condition precedent to corporate existence by the Act of April 29, 1874, P. L. 73, and when the business is conducted without the certificate having been recorded the subscribers conducting the business are liable as partners, and until the certificate of incorporation is filed such subscribers are not estopped from denying the existence of the corporation in a suit upon the subscription.</p> <p>2. The doctrine of equitable estoppel by matter in pais requires that where the conduct of the party has been such as to induce action, by another, he shall be precluded from afterwards asserting to the prejudice of that other the contrary of that in which his conduct has induced belief. The element of fraud is essential, either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up. If the truth be known to both parties, or if they have equal means of knowledge, there can be no estoppel.</p> <p>3. A bill in equity filed by the judgment creditors of an alleged corporation against certain subscribers and against the legal representatives of certain other subscribers to the capital stock of such alleged corporation, seeking to enforce the payment of stock subscriptions, should be dismissed where it appears that no organization of the proposed corporation was ever actually effected under the charter, that 'all the subscriptions were canceled and that the charter was never recorded in the office of the county where the business was to have been carried on.</p> <p>4. While a suit against a partnership in the firm name only, without naming the individual partners, will support a verdict, and judgment, and execution against partnership property, such a judgment will not bind individually a partner not served with process in the action against the firm, nor can execution be issued against him.</p> <p>5. Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action, or bring in a new party, or change the capacity in which he is sued.</p> <p>6. An amendment which would change a judgment which had been entered against a corporation, to a judgment against individuals trading under a firm name, cannot be allowed before verdict and judgment, and the same result cannot be reached after judgment, by amending a creditor’s bill, so as to convert it into a bill to subject individual property to execution under a judgment against the corporation.</p>

<p>Appeal, No. 100, Jan. T., 1913, by defendants, from decree of C. P. Montgomery Co., June T., 1911, No. 9, in equity, for plaintiffs on bill in equity for an accounting in case of J. Elmer Porter, Samuel H. Porter, Ida K. B. Hetric and John Royer v. J. Allen Healy, John W. Healy, Jacob C. Sotter, and George N. Malsberger.</p> <p>Bill in equity for discovery and accounting. Before Swartz, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing, awarded the relief as prayed for in the bill. Defendant appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 336, Jan. T., 1913, by plaintiff, from order of C. P. Bucks Co., March T., 1913, No. 12, refusing to take off nonsuit in case of Owen Haring v. L. M. and C. A. Connell.</p> <p>Trespass to recover damages for personal injuries. Before Henry, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>At the close of the plaintiff’s case the court entered a nonsuit, which it subsequently refused to take off.</p> <p>Error assigned was the refusal to take off nonsuit</p>

<p>Negligence — Railroads—Fires—Spark from locomotive — Contributory negligence — Failure to extinguish fire — Question for fury.</p> <p>1. If minds can reasonably differ as to whether an imperative duty arises under given conditions, the question becomes one of fact for the Jury and not of law for the court. Whenever there is a substantial doubt as to the reasonable and natural inference to be drawn from undisputed facts the inference is for a jury.</p> <p>2. In an action against a railroad company to recover damages' for the destruction of timber by a fire alleged to have been caused by the defendant’s negligent operation of one of its locomotives, the questions of defendant’s negligence and plaintiff’s contributory negligence are for the jury where it appears that the locomotive passed by the timber land of plaintiff at a very rapid rate of speed, laboring heavily and emitting sparks or cinders, and that immediately after it passed fire was discovered not only on the plaintiff’s land, but on either side of it along the railroad track; that there was no other apparent cause for the fire; and that at the time the fire started plaintiff was sitting on the porch of his house about a mile an I a quarter away and saw the smoke but did not go to the woods for the purpose of trying to extinguish the fire, giving as his reason that when he first saw the smoke he was not sure there was a fire; and that when he discovered it was not mere smoke the fire had then spread and it would have been useless for him to go there and try to put it out; where it further appeared that several railroad hands went to the fire immediately after it started and tried to put it out, hut, with their number subsequently increased to over a hundred were unable to stay the burning.</p> <p>8. In such a case it cannot be said that the only inference to be drawn from the plaintiff’s failure to act is that he had failed to perform a duty which the law imposed upon him.</p>

<p>Appeal, No. 78, Jan. T., 1914, by plaintiffs, from decree of C. P. No. 1, Philadelphia Co., Dec. T., 1913, No. 4856, entering judgment for defendants on case stated in case of John C. Winston, Richard L. Austin, John Hampton Barnes, Russell Duane, Samuel S. Pels, Charles L. McKeehan, J. Henry Scattergood, John Walton and George Woodward v. Robert J. Moore, John J. Powers, and Frank J. Gorman, County Commissioners for the City of Philadelphia, and the Commonwealth of Pennsylvania, Intervening Defendant.</p> <p>Case stated to determine the constitutionality of the Nonpartisan Ballot Act of July 24, 1913, P. L. 1001. Before Bregy, J.</p> <p>The case stated was as follows:</p> <p>The parties- to this litigation agree as follows:</p> <p>1. This case shall be decided as if the facts herein stated had been duly averred in a bill in equity and an answer thereto had been filed, admitting said facts, and submitting the questions of law involved to the court for decision.</p> <p>2. Plaintiffs are citizens, residents and taxpayers of the State of Pennsylvania, City and County of Philadelphia.</p> <p>3. Defendants are county commissioners of the County of Philadelphia.</p> <p>4. Defendants are about to, and unless restrained by the court will, spend money of the county in the printing of official nonpartisan ballots and other election material, under the provisions of the Act of July 24,1913, P. L. 1001, for use at the forthcoming primary election to be held within the State of Pennsylvania, on the third Tuesday of May, 1914, and in preparation for the nonpartisan nomination of judges at such primary under the terms of the said act.</p> <p>5. It is agreed that if the Act of July 24, 1913, P. L. 1001, entitled, “An act to regulate nominations and elections for all elective offices of cities of the second class and all offices of judge of a court of record; providing for nonpartisan nominations and elections for said offices.: abolishing certain existing methods of nomination in such cases and the use of party or political names or appellations at elections with respect to said offices; imposing certain duties upon the Secretary of the Commonwealth, county commissioners, and election officers and clerks; and providing penalties for the violation of the provisions thereof, and the punishment of certain offenses,” is constitutional, judgment shall be enteréd for the defendants; if the said act is unconstitutional, an injunction shall issue to restrain defendants from printing any nonpartisan ballots or spending any money of the county under the provisions of the said act, either party to have the right to appeal as in other cases.</p> <p>The court below entered judgment for defendants. Plaintiffs appealed.</p> <p>Error assigned was the judgment of the court.</p> <p>The Act of July 24, 1913, P. L. 1001, commonly known as the Nonpartisan Ballot Law, is unconstitutional and void for two reasons: First, because it interferes with the freedom and equality of elections; second, because, relating exclusively to the office of judge, it is special legislation.</p> <p>The law is a denial, qualification or restriction of the elector’s right, and is discriminatory in its operation: Independence Party Nomination, 208 Pa. 108; Oughton v. Black, 212 Pa. 1.</p> <p>The provision of the law which limits the names to be printed upon the official ballot to two candidates for each office is invalid: State v. Junkin, 85 Neb. 1; People v. Chicago Board of Election Commissioners, 221 Ill. 9.</p> <p>Requiring each candidate to file an affidavit, stating that he is a candidate, is in violation of the Constitution: Dapper v. Smith, 138 Mich. 104; State v. Blaisdell, 18 N. D. 55.</p> <p>The abolition of party nominations is invalid: State v. Junkin, 85 Neb. 1; Murphy v. Curry, 137 Cal. 479; Hopper v. Britt, 204 N. Y. 524 (S. C. 203 N. Y. 144); State v. Phelps, 144 Wis. 1.</p> <p>The act is special legislation.</p> <p>The Nonpartisan Ballot Act is not an election law with the purview of the constitutional provisions invoked by the appellants, i. e., is not a law regulating the holding of elections by the citizens, nor . a law for the opening and conducting of elections; but, on the contrary, is merely an act providing a method for making nominations to the office of judge of any court of record; and hence the aforesaid constitutional provisions have no application to it: Leonard v. Commonwealth, 112 Pa. 607; Com. v. Young, 16 Pa. Superior Ct. 317; Com. v. Tucker, 23 Pa. Superior Ct. 632.</p> <p>Even if this court should be of opinion that the Nonpartisan Ballot Law is an election law to which the said constitutional provisions are ápplicable, it does not interfere with the freedom and equality guaranteed in all elections, nor is it destructive of the uniformity required in all laws regulating the holding of elections by the citizens: Woods’s App., 75 Pa. 59; DeWalt v. Bartley, 146 Pa. 529; Gilbert’s Est., 227 Pa. 648; In re Greenfield Ave., 191 Pa. 290; James Smith Woolen Machinery Co. v. Browne, 206 Pa. 543; Searight’s Est., 163 Pa. 210.</p> <p>Even if this court should be of opinion that the Nonpartisan Ballot Law is an election law to which the constitutional provisions in question are applicable, and that the act in its operation will be destructive of uniformity in election laws, yet it is not a prohibited local or special law for opening or conducting elections, because it is based upon proper classification: Ayars’ App., 122 Pa. 266; Com. v. Mathues, 210 Pa. 372.</p>

<p>Negligence — Railroads — Proof of negligence — Sparks — Fire— Proximate cause — Evidence—Allegata and probata — Averment as to time — Gase for jury.</p> <p>1. In an action against a railroad company to recover damages for the destruction of property by fire, alleged to have been caused by the negligent emission of sparks from defendant’s engines, it is not error to admit evidence to show that within two or three weeks before and after the fire as the engines of defendant company passed by the premises of the plaintiff, sparks nearly an inch in diameter and burning coals as large as a man’s fist weré frequently discharged from defendant’s engines and fell into plaintiff’s yard, in some instances starting fires thereon.</p> <p>2. In such case it was error to admit evidence as to other fires in the neighborhood, where the witnesses were not able to testify that such fires had been caused by sparks or cinders from defendant’s engines.</p> <p>3. In such case it was not error to permit plaintiff to show the direction and velocity of the wind at the time of the fire, as bearing upon the probability that everything in the air above defendant’s tracks would be carried upon plaintiff’s premises.</p> <p>4. Where in such case the fire started along the retaining wall in plaintiff’s yard and from this was communicated to sheds, stables, and the main building, in such a way that the burning was a continuous succession of events, so linked together that it became one natural whole, and constituted in fact one continuous conflagration, the spark which started the first fire was the proximate cause of the damage.</p> <p>5. In an action against a railroad company to recover damages for the destruction of plaintiff’s property by fire alleged to have been caused by tbe negligent emission of sparks from defendant’s engines, the case is for the jury where it appeared that on the day of the fire between the hours of 2:30 and 3:15 p. m., nine locomotives and two shifting engines passed over defendant’s tracks in close proximity to plaintiff’s yard; that the nine locomotives were identified and the two shifting engines partially so; that within the hours mentioned a fire started along the retaining wall in plaintiff’s yard, whence it was communicated directly to certain sheds, stables and the main building; that at the time of the fire the wind was blowing in the direction of the plaintiff’s yard from defendant’s tracks; but there was no testimony that between the hours mentioned, or any other time that day, any engine operated by defendant was seen to emit sparks, cinderg or burning coals at any point in the vicinity of plaintiff’s premises, nor was there proof that any one of the nine identified engines was not properly equipped with an approved spark arrester, in good condition, or was operated in a negligent manner, and nothing was shown in connection with the operation of any of such engines on the day of the fire from which an inference of negligence could have been drawn; but the testimony showed that on other days, for a period of two or three weeks both before and after the fire, sparks as large as a hen’s egg, and burning coals as large as a man’s fist were seen to pass from defendant’s engines upon the plaintiff’s premises, in some instances causing fires.</p> <p>6. Where in such case plaintiff’s statement alleged that the negligent throwing of sparks causing the fire occurred between the hours of 2:30 and 3:15 p. m., it was reversible error for the court to instruct the jury that they were at liberty to find that the spark which caused the fire might have fallen on the premises at any time prior to 2 o’clock.</p>

<p>Negligence — Street railways — Safe entrance to cars — Duty to provide — .Evidence.</p> <p>1. It is the duty of a street railway company to provide a reasonably safe entrance to its ears, and where it appears that there is an obstruction to such entrance, of the company’s own creation, which has been allowed to remain for ten or more days at a point where intending passengers are invited to board the cars, when its removal would have required but a few minutes’ work, the question of defendant’s negligence is for the jury.</p> <p>2. In an action against a street railway company to recover damages for personal injuries, it appeared that plaintiff in endeavoring to board the rear platform of a ear was obliged to stand upon a mound of dirt, which had been thrown up by' the defendant in making certain repairs to its tracks, and had been left in that position for ten days or more; that while plaintiff was standing on the mound, preparing to board the car, the dirt suddenly gave way, with the result that her foot was thrown upon the track ■in front of the rear truck, and crushed. Defendant contended that the mounds of dirt were necessary incidents to the repair of the track; that they were distributed in the ordinary manner, and that they had not obstructed the street for an excessive period. Held, the question of defendant’s negligence was for the jury, and judgment on a verdict for plaintiff was sustained.</p>

<p>Negligence — Joint tori feasors — Covenant not to sue one — Building operation — Subcontractors—Safe place to work — Master and servant — Judgment n. o. v.</p> <p>1. In an action to recover damages for personal injuries inflicted upon plaintiff through the negligence of a contractor or one or the other of two subcontractors, under circumstances not making it clear whose was the negligence which caused the injury, judgment is properly entered for defendant n. o. v., where it appeared that plaintiff had released the subcontractors from liability for his injury, in consideration of the payment of a sum of money, and at the trial did-not offer any evidence to show that the subcontractors and the defendant contractor were not joint tort feasors. The burden of proving such fact rests upon the plaintiff in such case, and if not discharged there can be no recovery.</p> <p>2. In an action by an employee against his employer to recover damages for personal injuries sustained by plaintiff in consequence of the fall of a brick from one of the upper floors of the building in which he was working, where the circumstances were such- that the fall might have been caused by the negligence either of the general contractor of the building, or one of two subcontractors, it appeared at the trial that plaintiff had accepted $2,500 from the two subcontractors, giving to them an agreement to save them harmless “from any and all loss growing out of the said accident and injury to me.” Plaintiff offered no evidence to show that the negligence was not. the joint act of the defendant contractor and the subcontractors, who had been released from liability. Held, the burden was on the plaintiff to prove this fact, and in the absence of evidence to show it, judgment was properly entered for defendant n. o. v.</p>

<p>Negotiable instruments — ChecTcs—Forged endorsement — Other forgeries — Practice, Supreme Court — Assignments of error — Evidence — Witnesses—Cross-examination.</p> <p>1. Questions not raised by the assignments of error will not be considered by the Supreme Court.</p> <p>2. While the range of cross-examination rests largely in the discretion of the trial judge, too much latitude is allowed where a witness asked on direct examination the single question as to whether his endorsement on a check,was genuine is allowed to be asked on cross-examination as to other irregularities by the forger and as to the forged endorsement of other checks which had passed through his hands, the irregularities and forgeries not being in any way connected with the forgery in question.</p>

<p>Wills — Residuary bequests — Absolute gifts — Precatory words— Trusts — Case stated.</p> <p>1. After an absolute bequest or devise has been made, no precatory words of the testator to his legatee or devisee can defeat the estate previously granted, nor can a clearly expressed purpose of a testator be overborne-by modifying directions. that are ambiguous and equivocal.</p> <p>2. Where, on a case stated to determine the character of a wife’s interest in certain real estate devised to her by her deceased husband it appeared that the property had passed under an absolute bequest of testator’s residuary estate “to my beloved wife...... desiring that she shall use such portion of my estate as may seem best to her in the support of my beloved son Robert......and my beloved daughter, Edith, and in case of her re-marriage pay ten thousand dolars to each of them then living,” the lower court correctly decided that the wife took the estate absolutely, free of any trust in favor of the children named, particularly as, from another clause in the will creating a trust in unequivocal language, the inference was to be drawn that had the testator intended to create a trust in their favor, he would have used words as unequivocal for the purpose.</p>

<p>Husband and wife — Right of wife to sue her husband — Wife’s real estate — Right to sole possession — Equity—Pleading—Mandatory injunction — Allegata and probata — Variance.</p> <p>1. A married woman may sue ber husband in equity to restrain him from unlawfully depriving her of the use and enjoyment of her separate estate, notwithstanding the provisions of section 3 of the Act of June 8, 1893, P. L. 344.</p> <p>2. Where a bill in equity brought by a wife against her husband to compel him to surrender possession of a house alleged to be the sole and separate property of the wife, avers that the plaintiff was obliged to leave the property in controversy, “Owing to the cruel and barbarous treatment of her husband,” and the chancellor finds that there is no proof of cruel and barbarous treatment, but that plaintiff was compelled to withdraw from the house for causes which justified her in so doing, the findings are in accord with, and sustain the important part of the averment to which they relate, and there is no such variance or departure from the pleadings, as to require a dismissal of the bill.</p> <p>3. Where in such case it appeared that the husband had conveyed the property to his wife, in consideration of the fact that she had paid a large portion of the original cost thereof, and in pursuance of an agreement that she should satisfy certain mortgages thereon out of her separate estate; that plaintiff had lived and resided in sole and separate ownership of the house, the defendant residing therein as her husband; that no fraud was practiced by plaintiff upon defendant in obtaining the conveyance, and that nothing transpired at the time of the conveyance in derogation of the absolute fee-simple grant to her; and that plaintiff had been compelled to withdraw from the property and remain out of possession thereof, for causes which justified her in so doing, the court correctly awarded the relief prayed for.</p>

<p>Husband and wife — Beal estate — Conveyance by husband to ■ wife — Valid conveyance — Equity—Bill to declare a trust.</p> <p>Where in. a suit in equity to have a wife declared trustee of a house and lot for her husband, from whom she was separated, and for a conveyance to him of the legal title, the court found as a fact, upon competent evidence, that plaintiff had voluntarily deeded the property to his wife while they were living together, principally because most of the money represented in the investment had come from her separate estate, and also in order to secure it against his possible future creditors, that no fraud was perpetrated upon the husband at the time of the transfer of the title, and that the conduct of the husband compelled and fully justified the wife’s withdrawal from the premises, no error was committed in dismissing the bill.</p>

<p>Mines and mining — Boundary pillars — Width of pillars — Act of June 2, 1891, P. L. 176, Art. Ill, Sec. 10 — Awards—Validity— Equity — Bill in equity — Demurrer.</p> <p>1. The legislature has the power to provide a method of determining the width of the barrier pillar between two adjacent mines.</p> <p>2. The authority conferred on the tribunal created, by Sec. l'O, Art. Ill, of the Act of June 2, 1891, P. L. 176, to fix the width of the barrier pillar between two adjacent mines, necessarily includes the authority to determine whether the safety of the employees in the mine requires a pillar of any width, and when the width of a pillar has been fixed, it will be presumed that the necessity for a pillar has been considered.</p> <p>3. A majority of the members of the tribunal created by the Act of June 2, 1891, P. L. 176, may render a valid decision, provided that all the members have an opportunity to participate in determining the question for decision.</p> <p>4. The Act of June 2, 1891, P. L. 176, does, not require that the board which fixes the width of the barrier pillar shall report its findings to the department of mines, or that all the members of the board shall sign the report; and the refusal.of one member to sign the report of the board does not affect its validity.</p> <p>5. Where a bill in equity to have declared invalid an award fixing the width of a barrier pillar of coal between two adjacent mines, and made in pursuance of the Act of June 2, 1891, Art. Ill, Sec. 10, complained that the award was defective because the necessity for a pillar was not considered, that no pillar was in fact necessary, that one of the members of the board did not participate in its deliberation or decision, and that the report of the hoard was not signed by all its members, the court made no error in sustaining a demurrer to the bill where it appeared from the proceedings of the board, which were made a part of the bill, that the width of the pillar had been determined by a majority vote in a regular proceeding at a meeting at which all the'members Were present.</p>

<p>Appeal, No. 369, Jan. T., 1913, by plaintiffs, from decree of' C. P. Schuylkill Co., July T., 1912, No. 1, in Equity, dismissing bill in equity for an injunction in case of John M. Ebling, Augusta dwell, and Edward E. Weiser v. The Borough of Schuylkill Haven.</p> <p>Bill in equity for an injunction. Before Bechtel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing dismissed the bill.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 256, Jan. T., 1913, by plaintiff, from order of C. P. Lackawanna Co., November Term, 1912, No. 741, discharging rule for judgment for want of sufficient affidavit of defense in case of J. S. "Wentz v. The Pennsylvania Casualty Company.</p> <p>Rule for judgment for want of sufficient affidavit of defense. Before Newcomb, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court discharged the rule for judgment. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 317, Jan. T„ 1913, by defendant, from judgment of C. P. Lackawanna Co., Oct. T., 1910, No. 900, on verdict for plaintiff, in case of Olga Schwarz v. George A. Glenn, doing business as George A. Glenn & Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband.</p> <p>Newcomb, J., filed the following opinion, sur defendant’s motion for judgment for defendant n. o. v.:</p> <p>There was a verdict for plaintiff who sued for damages because of the death of her husband by accident while at work in a building for the erection of which defendant was the contractor. The latter moves for judgment non obstante on the certified record as provided by the Act of April 22, 1905, P. L. 286.</p> <p>While defendant’s liability was charged on several grounds, the only averment attempted to be sustained is that alleging failure to keep certain machinery out of operation for a limited time, as defendant, by its proper representative, had promised to do.</p> <p>Some of the material facts were not in dispute, viz:</p> <p>1. Defendant, doing business in Philadelphia, was the general contractor for the erection of a building on Spruce street, in this city. He was represented on the ground by Mr. Rowland in the capacity of superintendent of construction.</p> <p>2. Branches of the work had been underlet to different subcontractors, inter alia, the iron and steel to the Scranton Iron Works; and the plaster masonry to Brady and Company, of Philadelphia.</p> <p>3. As a working appliance defendant had installed a temporary elevator with motive power supplied by means of an engine stationed in the court or alley alongside the building.</p> <p>4. • Brady and Company were represented on the ground by Mr. Gilbert, their foreman. By virtue of their contract they had the exclusive use of the elevator and the engine for the time being. It was in operation for their purposes, at their expense, and by hand of their engineer, Mr. Trice, who was subject to Gilbert’s orders.</p> <p>6. Deceased was on the ground as a structural iron-worker in the employ of the Scranton Iron Works. In that employment he was then at work on the stair construction. The stairway was contiguous to the elevator shaft. In the prosecution of this work he was struck and fatally hurt by the descending carriage by reason of having his head inside the shaft.</p> <p>7. No attempt had been made by Rowland to have the use of the elevator discontinued temporarily while deceased was so engaged.</p> <p>Other facts, though in dispute, must be taken to have been established by the verdict, to wit:</p> <p>a. The omission to give any direction either to Gilbert or Trice, as last above noted, was a breach by Rowland of his promise made to the deceased about half an hour before the accident.</p> <p>b. As between the different trades, Rowland had the apparent authority to regulate and control the operation of the elevator according as the exigencies of the work might from time to time require.</p> <p>c. .His promise had been to stop the elevator for the period Of an hour; the occasion of giving it was a request by deceased; and the latter exposed himself to the fatal risk on the faith of that assurance.</p> <p>The law applying to such group of facts is believed to be free from difficulty. One can see no escape from the conclusion that they support the verdict. Whether, so far as in dispute — and these were the crucial facts — they could have been fairly so found was quite another question, and wholly for the jury. Such finding depended upon the degree of credit, if any, to be given to the only witness who so testified. His testimony was not only directly contradicted by Rowland, but in itself was open to suspicion because of its radical alteration during the trial under circumstances not well calculated to give it the appearance of good faith. On its face his conduct was not unlike that of a witness who, discovering that he had unintentionally sworn his party out of court in the morning, comes back in the afternoon prepared to go any length to repair the damages. He had first identified Mr. Gilbert as the man to whom the alleged request was made. If made at all, that would have been entirely consistent in view of Mr. Gilbert’s functions there. He was the personal representative of the firm then using the elevator. There could be no question as to his authority to control its use, as the engineer was subject to his orders; but, as against this defendant, it would have been fatal to plaintiffs case. She would have been face to face with the barrier against liability for the act of an independent contractor.</p> <p>It may be conceded that the witness was laboring under some confusion of mind and memory, thus acquitting him of either corrupt or reckless swearing. But that in no way serves to strengthen his ultimate claim. It still leaves his final assertion so doubtful in value that, as against a positive denial on the other side, it is not apparent how it could be given any preponderating weight. It certainly could have none in mind of those having any knowledge of the nature of evidence. But that doesn’t out-law the testimony. So long as it can be referred to for present purposes only in terms either of weight or credibility, just so long it stands labeled as a question exclusively for the jury. True, the court is in duty bound in such case to call attention to those things, whether inherent or extrinsic, which tend to discredit the evidence; and it was so done in this instance. The limited review, however, to which the determination of the jury is subject, can be had only on motion for new trial; and not, as in this case, on a rule for judgment.</p> <p>On the subject of “independent contractor,” counsel have submitted well prepared briefs. But on the facts above stated, the question of defendant’s liability is one of true agency, having nothing to do with any wrongful act of a subcontractor, whether independent or otherwise. That Mr. Rowland was defendant’s agent is agreed. The actionable negligence, if any, was the disregard of his promise upon which deceased had relied for security. It follows that the only other question would be as to the scope of the agency, either express or implied.</p> <p>As submitted to the jury, the inquiry was limited to that of apparent authority on the theory that the evidence did not go beyond that.</p> <p>This may have been error; though not now material.</p> <p>Upon review of the testimony — especially that of defendant himself — it appears that in cases of temporary and local conflict in the work, as between different trades, it devolved upon the superintendent to see that one should give way for the time being so that the fixtures and interior finish should go in place in due order. True, it did not distinctly appear that deceased could not proceed without access to the elevator shaft; therefore, it wasn’t clear that a case of conflict within the meaning of the terms of the agency had arisen. But that, in any instance, might be a debatable question, in the nature of which it would not be incumbent on the deceased, at his peril, to know the precise conditions under which the superintendent was authorized to act. Deceased would have the right to expect to be so advised if, for any reason, his request could not be acted upon. Hence, on the face of the facts found, the case presented is that of defendant’s personal representative clothed with actual authority not unlike that which he was asked to exercise. In that situation, if he so promised 'to act, the promise in itself would be evidence of his apparent authority in the premises.</p> <p>No fault having been found with the manner of trial except as to the refusal of binding instructions, the only thing that can be considered is whether there was any question to go to the jury. For the reason stated it is believed the case on that point is with plaintiff, and therefore, whether the verdict was right or wrong, the present motion must fail.</p> <p>The rulé to show cause is discharged.</p> <p>The court overruled the motion.</p> <p>Verdict for plaintiff for $3,500. Defendant appealed.</p> <p>Error assigned was in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 243, Jan. Ter.m, 1913, by plaintiff, from judgment of C. P. Berks Co., August Term, 1912, No. 8, on verdict for plaintiff, in case of Boceo A. Frasso v. City of Beading.</p> <p>Appeal from award of viewers. Before Endlich, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $1,254. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s request to have the jury view the premises in question.</p>

<p>Appeal, No. 258, Jan. T., 1914, by Carl F. W. Bergner, from decree of O. C. Berks Có., March T., 1912, No. 3, dismissing exceptions in Estate of Carl F. ■ G. Bergner, deceased.</p> <p>Exceptions to inventory. Before Bland, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court dismissed the exceptions.</p> <p>Carl F. W. Bergner, a residuary legatee, appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Wills — Vested and contingent remainders — Intention.</p> <p>1. A well recognized exception to the rule that where time or other condition is annexed to the spbstance of the gifts and not merely to the payment, the legacy is contingent, is that where interest, whether by way of maintenance, or otherwise, is given to the legatee in the meantime, the legacy, notwithstanding the gift itself appears to be postponed, vests immediately on the death of the testator. This circumstance indicates an intention that the beneficial enjoyment shall begin at once and payment only of the capital or principal be postponed.</p> <p>Trusts — Termination of trust — Conveyance of trust property to cestui que trust — Trustees—Discretion—Control—Wills — Construction.</p> <p>2. Although a trust may not have ceased by expiration of time, and although all its purposes may not have been accomplished, yet if all’ the parties who are, or who may be, interested in the trust property are in existence and are sui juris, and if they all consent and agree thereto, courts of equity may decree the determination of the trust and the distribution of the trust fund among those entitled thereto; a trust estate continues in equity no longer than the thing sought to be secured by the trust demands.</p> <p>3. While ordinarily there will be no interference with the discretion placed in executors or trustees, yet whenever the law determines that the discretion of a trustee should have been exercised in a particular way, he will be constrained to act in accordance therewith.</p> <p>4. Where a testator gave his residuary estate real and personal in trust, and directed that the net income, after the payment of certain annuities, should be divided quarterly among all his grandchildren who should be living at the expiration of the respective quarterly periods, and the lineal descendants of any who should have died, leaving lineal descendants then living; that when all the real and personal property should have been sold, the proceeds should be paid over and divided to and among all of testator’s grandchildren who should be then living, and the lineal descendants of any deceased grandchild; and that distribution should be made only when the property should be sold at a time when and at prices which in the absolute judgment and‘discretion of the trustees would be for the best interest of the estate, the grandchildren, being sui juris and all of the persons interested in the real estate, have a right to elect to take it, instead of the proceeds; and the trustees are bound to convey the balance of it to them, after making provision to pay the annuities.</p> <p>5. In such a case the fact that a continuation of the trust would be of benefit to the trustees has no weight.</p>

<p>Appeal, No. 283, Jan. T., 1913, by defendant, from, decree of C. P. Schuylkill Co., May T., 1912, No. 1, in Equity, for plaintiff, on bill in equity for the cancellation of a deed, in case of Margaret A. Thomas v. Sarah Ann Herring.</p> <p>Bill in equity for the cancellation of a deed. Before Brtjmm, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court, on final hearing, granted the relief prayed for. Defendants appealed.</p> <p>Errors assigned were in dismissing exceptions to various rulings on evidence, to various findings of fact and law, and the decree of the court.</p>

<p>Trespass — Conspiracy—Conspiracy to secure discharge of fellow employee — Charge of court.</p> <p>1. A conspiracy is the combination of two or more persons by some concerted action to accomplish an unlawful purpose.</p> <p>2. The combination to deprive a mechanic or workman of work by force, threats or intimidation of any kind, is a conspiracy, and the fact that such conspiracy is no longer criminal does not render it lawful.</p> <p>3. Where workmen combine and threaten to strike unless a fellow workman, whom they dislike, is discharged, they are liable in damages to the workman whose discharge they have so procured.</p> <p>4. In án action to recover damages from plaintiff’s fellow workmen for injuries sustained in consequence of plaintiff’s discharge from employment, where there was evidence that plaintiff had reported to his employer’s manager a theft perpetrated by a night watchman, that thereafter defendants had given the manager a paper signed by them which stated that they would refuse to work after the expiration of twenty-four hours as long as plaintiff was employed in the same plant, and where there was no evidence to show that plaintiff had made himself obnoxious or distasteful towards his fellow workmen, or that they signed the paper for any other reason than that alleged by the plaintiff, which was that he had reported the theft, an instruction to the jury that “If you find ......that these men were justified in requesting the dismissal of this man,......on account of his making himself so unpleasant to them that they did not care to work with him... .your verdict should be in favor of the defendants,” was inadequate and erroneous in failing to distinguish between what a single individual may lawfully do and what a combination of individuals may do.</p> <p>5. In such case an instruction that if plaintiff’s habits, or his character, or his conduct while at work towards his fellow workman, was such as to render him an unfit associate of ordinary workman of good character, it would have been sufficient reason for interference by his fellow workmen with his employment, would have been proper.</p> <p>Evidence — Res gestee — Admissibility of letter.</p> <p>6. Where declarations or acts accompany a fact in controversy and tend to illustrate or explain it, they are admissible as part of the res geste.</p> <p>Y. Where in an action against plaintiff’s fellow employees to recover damages for loss of employment resulting from a conspiracy on the part of the defendants caused by their dislike of the plaintiff, a letter was admitted in evidence which had been given the plaintiff by the manager on the day of his discharge and which stated that plaintiff had been discharged through no fault of his own, but at the demand of employees, because he had reported the dishonesty of one of them, the letter tended to illustrate the transaction and was part of the res geste, and it was error for the court to strike it from the testimony and direct the jury to disregard it.</p> <p>Mr. Justice Moschzisker dissents in part.</p>

<p>Appeal, No. 372, Jan. T., 1913, by Harriet T. Turner, from decree of O. C. Schuylkill Go., March T., 1912, No. 23, dismissing exceptions to decree of distribution in Estate of Jesse Turner, Deceased.</p> <p>Exceptions to decree of distribution. Before Wilhelm, P. J.</p> <p>Tbe opinion of tbe Supreme Court states tbe case.</p> <p>The court dismissed the exceptions to the decree of distribution. Harriet T. Turner appealed.</p> <p>Errors assigned were in overruling exceptions.</p>

<p>Wills — Execution—Signature at end thereof — Act of April 8, 1888, P. L. 249.</p> <p>1. The Act of April 8, 1833, P. L. 249, requiring that, “Every will shall be in writing and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof or by some person in his presence and by his express direction,” was intended to remedy the mischief that arose from attempting to probate memoranda, letters, and notes which were inchoate expressions of intentions. One of its purposes was to attain certainty as to the testator’s completed testamentary purpose by the placing of his signature at the end of the instrument, and while a signature by initials or by a part only of the name may be a valid execution of a will, the present, actual and completed intent to execute must be apparent.</p> <p>2. The act of assembly, in providing that the testator’s intent should be manifested by signing at the end thereof, used the word “signing” in the usual acceptation of the word, and the sense in which presumably it is used in the act is the writing of a name or the affixing of what is meant as the signature.</p> <p>3. The decedent died leaving a paper in his own handwriting, which was found in a drawer in his house, in a sealed envelope. Prior to his death he had told his daughter where the paper was and that if anything should happen to him she should get it and give it to her brother. The paper was testamentary in character, but was unsigned except with the words, “Tour miserable father,” which appeared in the handwriting of the decedent. Held, that probate of the paper was properly refused.</p>

<p>Appeal, No. 200, Jan. T., 1913, by plaintiff, from judgment of C. P. Lackawanna Co., Oct. T., 1910, No. 505, on verdict for defendant in case of Jacob Suravitz v. The Prudential Insurance Company of America.</p> <p>Assumpsit on a life insurance policy. Before O’Neil, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were answers to points and various instructions to the jury.</p>

<p>Appeal, No. 56, Jan. T., 1914, by plaintiff, from decree of C. P. Lackawanna Co., Oct. T., 1913, No. 5, in equity, dismissing bill in equity for an injunction in case of The Graff Furnace Company v. Scranton Coal Company.</p> <p>Bill in equity for an injunction. Before Edwards, P. J,</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were in dismissing various exceptions to the findings of fact and law of the trial judge and the decree of the court.</p> <p>If the destruction of surface support is not necessarily incident to the business of mining, then a conveyance by the owner of real estate of the coal therein and of its rights to mine and remove the same by any subterranean process incident to the business of mining, does not grant the right to destroy the surface: Coleman v. Chadwick, 80 Pa. 81; Weaver v. Berwind-White Coal Co., 216 Pa, 195; Dignan v. Altoona Coal & Coke Co., 222 Pa. 390; Berkey v. Berwind-White Coal Mining Co., 229 Pa. 417; Noonan v. Pardee, 200 Pa. 474; Stilley v. Pittsburgh-Buffalo Co., 234 Pa. 492.</p> <p>While the principle that the under or mineral estate owes a servitude of sufficient support to the upper or superincumbent estate has no application where the same person is the owner of both estates, still upon the severance of the two estates, in the absence of a waiver of surface support in the grant, the law imposes upon the underlying mineral estate the servitude of surface support.</p> <p>An exception or reservation of the right of surface support in a grant of land, if the grantor has the right, is void and of no effect: Horner v. Watson, 79 Pa. 242; Touchstone, page 78; Dorel v. Collins, Cor., Eliz. 6; Little v. Greek, 233 Pa. 534; Shoenberger v. Lyon, 7 W. & S. 184; Stokely’s Est., 19 Pa. 476; Siebert v. Levan, 8 Pa. 382; Kieffer v. Imhoff, 26 Pa. 438; Grace Methodist Episcopal Church v. Dobbin, 153 Pa. 294; Huff v. McCauley, 53 Pa. 206; Everhart v. Dolph, 133 Pa. 628; Erb v. Brown, 69 Pa. 216; Yeakle v. Jacob, 33 Pa. 376.</p> <p>The plaintiff waived its right to surface support: Williams v. Hay, 120 Pa. 485; Madden v. Lehigh Valley Coal Co., 212 Pa. 63; Robertson v. Youghiogheny River Coal Co., 172 Pa. 566; Miles v. Penna. Coal Co., 217 Pa. 449; Kellert v. Rochester & Pittsburgh Coal & Iron Co., 226 Pa. 27.</p>

<p>Decedents' estate — Widow’s election — Election attached for fraud — Evidence.</p> <p>1. Where a widow has elected to take under her husband’s will and has complied with the formalities required by the Act of April 21, 1911, P. L. 79, under circumstances which show that no undue advantage was taken of her, and that she was fairly informed of her legal rights, and of the facts necessary to an intelligent choice, her acceptance of the will, duly executed and made of record, should not be lightly set aside.</p> <p>2. A widow who had elected to take under her husband’s will petitioned the Orphans’ Court for leave to withdraw her election, alleging that the attorney for the executor had persuaded her to accept the will, that she was in a nervous condition when she signed the election, that she had not had sufficient knowledge of the value of her husband’s estate to enable her to make an intelligent choice, and that she was in ignorance of her rights, and was not informed of the effect of the paper which she signed, all of which was denied by the executor. There was evidence sufficient to support the findings of the court below that petitioner h'ad a normal mind, when she signed the election, that no influence was brought to bear on her when she accepted the will, that she was informed of her rights under the law and of the value of the estate, which was about one and a half million dollars; and that she was told if she should take under the will she would receive $25,000 per year and nothing else, but that if she should claim under the intestate law she would be entitled to one-half of the personal property absolutely, and that nearly the whole estate was personal property. The court entered a decree denying the relief prayed. Held, no error.</p>

Appeal, No. 50, Jan. T., 1913, by defendant, from judgment of C. P. Berks Co., Jan. T., J. D. No. 60, on verdict for plaintiff, in case of Herman Folkman v. Frank D. Lauer. Trespass to recover damages for personal injuries. Before Wagner, J. Tbe opinion of tbe Superior Court, by Henderson, J., in Kane v. Lauer, 52 Pa. Superior Ct. 467, was as follows: Tbe plaintiff was injured by tbe collapse of a grandstand at a baseball park owned by tbe defendant.

<p>Partnership — Articles of partnership — Construction—Equity— Dissolution of partnership — Profits.</p> <p>At the hearing of a suit in equity for the dissolution of a partnership and for the payment of profits claimed by plaintiff; it appeared that plaintiff and defendants had entered into partnership under articles which provided that capital should be borrowed on the endorsements of each partner, that each partner should furnish capital “to the extent of his ability,” that plaintiff should “see that the necessary funds shall be procured at six per cent, interest,” that after paying all the debts and interest .due, the profits of the firm should be divided equally to the extent of $36,000, each member receiving $12,000, and that profits in excess of $36,000 should be divided as therein provided for. It further appeared that the profits exceeded $36,000, that plaintiff had contributed $10,000, and with the other partners had raised Various additional sums. Defendants contended that plaintiff had agreed to raise $100,000, which he had failed to do, that he had not individually procured any necessary funds for the partnership, that his failure so to do constituted a breach of the partnership agreement and resulted in a loss of $8,000, which defendants sought to set-off against plaintiff’s possible claim. It appeared that plaintiff had failed to procure certain funds when requested, but there was no evidence of a wilful refusal on his part to supply any money, or of his culpable neglect to procure funds for the firm. The evidence relied upon by defendants was vague and general and consisted rather of conclusions and inference of fact, than of statements of actual events and occurrences. The lower court found upon competent evidence that plaintiff was not in default as to cash contributions, that the evidence did not show how much he was in default as to the money to be procured by endorsements, that there was no breach of contract on plaintiff’s part such as defendants understood worked a dissolution of the partnership agreement, and granted the relief prayed for. Held, no error.</p>

<p>Appeal, No. 339, Jan. T., 1913, by defendant, from judgment of C. P. Northampton Co., Nov. T., 1912, No. 67, on verdict for plaintiff in case of Frank H. Clement v. Didier-March Company.</p> <p>Foreign attachment in assumpsit. Before Scott, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,843.26, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and various instructions to the jury.</p>

<p>Appeal, No. 14, Oct. T., 1914, by defendants, from judgment of C. P. Somerset Co., Dec. T., 1913, No. 29, for plaintiff on demurrer to return to petition for writ of alternative mandamus in case of Levi Deal v. Erie .Coal & Coke Company, Fred Rowe, President; H. L. Miller, Secretary and Treasurer.</p> <p>Petition for mandamus. Before Ruppel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The plaintiff demurred to defendants’ return; the court sustained the demurrer and entered judgment for plaintiff. Defendants appealed.</p> <p>Error assigned was the judgment of the court.</p>