Volume 272 — Pennsylvania State Reports

Appeal, No. 53, Oct. T., 1921, by plaintiff, from order of C. P. Mercer Co., June T., 1916, No. 78, entering judgment for defendant n. o. Y., in case of F. B. Russell v. Farmers Mutual Fire Ins. Co. Assumpsit on fire insurance policy. Before Mc-Laughry, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $2,002. Judgment for defendant n. o. v. Error assigned, among others, was order, quoting it.

<p>Appeal, No. 55, Oct. T., 1921, by Mary Gregg, residuary devisee, from decree of O. O. Washington Co., May T., 1920, No. 89, dismissing exceptions to adjudication, in estate of Elizabeth Wood, deceased.</p> <p>Exceptions to adjudication. Before Hughes, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Exceptions dismissed. Mary Gregg, residuary devisee, appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

<p>Evidence — Contradiction of witness by physical facts — Case for jury — Mines and mining — Unlawful mining of coal — Statement of claim — Damages—Act of May 8, 1878, P. L. 11$.</p> <p>1. Where the apparent weight of the evidence on a disputed fact is overwhelming, still, if there is countervailing evidence of it upon which the jury may make a finding, all the evidence must be for their consideration.</p> <p>2. Exceptions to this rule have been made in cases where testimony stands opposed to physical facts admitted, or the evidence thereof is of such conclusive and unimpeachable nature as to amount to an admission.</p> <p>3. While an appellate court may not be authorized to weigh evidence and pass upon disputed facts, it should use its judicial knowledge to bring about justice, and, where undisputed physical facts are clearly shown and it is demonstrated by the law of nature, by mathematics or the like that a finding is untrue and cannot be true, the appellate court is justified in reversing the trial court.</p> <p>4. In an action to recover damages for the unlawful mining of coal, where the only evidence for plaintiff is that of one witness who testified that he crossed into plaintiff’s land while mining coal for defendant, the ease must go to the jury, although such testimony was in conflict with defendant’s mine map.</p> <p>5. Where, in an action to recover damages for unlawful mining of coal, the statement as a whole claims compensation for the coal taken and damages to the overlying surface, although it specifically claims double and treble damages under the Act of May 8, 1876, P. L. 142, the statement is sufficient upon which to ground the action for compensation.</p>

<p>Mines and mining — Lease—Covenant running with land — Covenant as to assignments — Consent of owner — Personal covenant— Subsequent assignees — Bes adjudicata.</p> <p>1. The assignee of a lease is not bound by stipulations which arise from the contract made by another, but only from the liability arising from privity of estate.</p> <p>2. Where the owner of coal, leases mining rights therein, on royalty for a term of years, and stipulates that the lessee shall not assign the lease without the written consent of the owner, such covenant is a personal one by the lessee, and where he assigns with the written consent of the owner, his assignee is not bound by the covenant, but may assign the lease without the owner’s consent.</p> <p>3. If the lessee so assigns the lease, the assignee becomes liable for the royalty, and the responsibility of the lessee ends.</p> <p>4. Covenants to pay rent or royalty run with the land, and the assignee is bound by their terms, and this is so though the lease binds the original party and his assigns.</p> <p>5. In such case it is immaterial that the assignee is of no financial worth, so long as it appears that the transfer was not merely colorable.</p> <p>6. In a suit against a second assignee for royalty which had become due after the date of a third assignment, and after the third assignee had taken possession, a successful suit against the second assignee for royalties which had accrued in the previous year cannot be set up as res adjudicata. The cause of action was not the same in the two suits.</p>

<p>Appeal, No. 181, Oct. T.,</p> <p>1921, by plaintiff, from decree of O. P. Somerset Co., No. 7, Equity, 1920, dismissing bill in equity, in case of Berlin Smokeless Coal & Clay Mining Co. et al. v. Bertha Rohm, Executrix of M. J. Rohm, deceased, and James C. Long.</p> <p>Bill in equity to declare judgment paid. Before Berkby, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Bill dismissed. Plaintiffs appealed.</p> <p>Error assigned^ among others, was decree, quoting it.</p>

<p>Appeal, No. 112, Oct. T., 1921, by defendant, from judgment of O. P. Washington Co., May T., 1920, No. 268, on verdict for plaintiff, in case of Nora Calligan v. Monongahela City.</p> <p>Trespass for personal injuries. Before Brownson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $1,708. Defendant appealed.</p> <p>Error assigned, inter alia, was refusal of judgment for defendant n. o. v., quoting record.</p>

Appeal, No. 150, Oct. T., 1921, by defendant, from judgment of C. P. Washington Co., May T., 1920, M. L. D., No. 16, on verdict for plaintiff, in case of John Bizet v. William C. Smith. Sci. fa. sur mechanic’s lien. Before McIlvaine, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $1,589.48. Defendant appealed.

Appeal, No. 203, Oct. T., 1921, by plaintiff, from decree of O. P. Greene Co., June T., 1919, No. 13, sustaining exceptions to auditor’s report, in case of John W. Donnan v. James R. Barnes. ■Exceptions to report of A. H. Sayers, Esq., auditor on distribution of proceeds of execution. The opinion of the Supreme Court states the facts. Exceptions sustained. Plaintiff appealed. Error assigned was order, quoting it.

<p>Appeal, No. 162, Oct. T., 1921, by tbe insurance carrier, defendant, from judgment of O. P. Indiana Co., June T., 1921, No. 5, affirming decision of Workmen’s Compensation Board’s award upon a bearing de novo, in case of Carrie S. Kelly v. Watson Coal Co. and 2Etna Life Ins. Co.</p> <p>Appeal from decision of Workmen’s Compensation Board on bearing de novo. Before Langham, P. J.</p> <p>' Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Decision affirmed. ' Tbe insurance carrier appealed.</p> <p>Errors assigned, among others, were tbe judgment, quoting it, and tbe admission of tbe testimony of experts, referred to in tbe opinion of tbe Supreme Court.</p>

<p>Railroads — Eminent domain — Branch—Public or private me— Burden of proof — Equity—Act of June 19, 1871, P. L. 1860 — Bill by private person — Procedural questions — Action of directors— Notice to director general of railroads.</p> <p>1. In order to entitle a complainant in a bill in equity filed under the Act of June 19, 1871, P. L. 1360, to the equitable remedy which the statute provides, defendant, when properly challenged, must have failed to show a charter power to do the act complained of or it must be shown that something essential to the rightful exercise of the power sought to be asserted is lacking, or that some act has been committed which is so closely connected with defendant’s right to exorcise the power in question, as in effect to constitute a charter prohibition against its assertion under the facts in the particular ease.</p> <p>2. The burden of showing that a corporation is exercising franchises which it does not possess is on those alleging that it is attempting to do what it is not authorized to do.</p> <p>3. Where a railroad company has a right to build an extension or a branch, it will be assumed, unless the contrary is plainly shown, that the railroad company’s officials have performed their duty in good faith, when they declare a public necessity for an extension, or when they designate such extension as a branch.</p> <p>4. The mere fact that some selfish interest may have inspired the plan for the construction of such section in no sense prevents that section from being classed as a “branch” road, or public use.</p> <p>5. Wherever it appears from the attending circumstances that a section of road about to be constructed will in some direct way tend to contribute to the general public welfare, or the welfare of a considerable part of the public, such as the mining and marketing of the coal of the State, it cannot be said that it will not serve a public use.</p> <p>6. Where a spur or siding from the main track of a railroad was originally built to serve a particular coal mine, the owners of such mine cannot maintain a bill in equity under the Act of 1871, to restrain the railroad company from condemning some of their land for the purpose of extending the tracks to serve another coal mine some distance beyond.</p> <p>7. As such an extension will serve in part to get the coal supply of the State out of the mines, on its way to the consumer, to the great benefit of the public of Pennsylvania, the extension is one for public use, sufficient to justify the exercise of the right of eminent domain.</p> <p>8. It is a rule that inquiry under the Act of 1871, is not permitted concerning the regularity of a condemnation from a mere procedural standpoint.</p> <p>9. The complaint in a bill filed under the Act of 1871, to restrain the extension of a railroad, cannot allege that the extension was not authorized by the directors of the railroad company, or that the director general of railroads had not joined in the appropriation.</p> <p>10. Such procedural defects must be determined in the condemnation proceedings proper.</p> <p>Equity — Appeals—Findings against appellee.</p> <p>11. On an appeal from a decree in an equity suit, the appellee cannot, in'order to maintain a decree in his favor, rely on facts which the trial court expressly refused to find.</p>

<p>Appeal, No. 189, Oct. T., 1921, by defendant, from judgment of O. P. Butler Co., Sept.'T., 1921, No. 135, sustaining decision of Workmen’s Compensation Board which affirmed award of referee, in case of Ida Callihan v. Noble Montgomery.</p> <p>Appeal from decision of Workmen’s Compensation Board affirming award of referee. Before Reiber, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decision affirmed. Defendant appealed.</p> <p>Error assigned, inter alia, was order, quoting it.</p>

Appeal, No. 95, Oct. T., 1921, by defendants, from judgment of O. P. Allegheny Co., Jan. T., 1921, No. 2660, affirming decision of Workmen’s Compensation Board on bearing de novo, in case of Ella Lawton v. Diamond Coal & Coke Co., and iEtna Life Ins. Co., insurance carrier. Appeal from decision of Workmen’s Compensation Board on bearing de novo. Before Macearlane, J. Tbe opinion of tbe Supreme Court states tbe facts. Decision affirmed. Defendants appealed.

<p>Timber — Unlawful cutting — Trespass—Possession—Adverse possession — Residence—Cultivation, etc.</p> <p>1. Plaintiff, in an action to recover damages for the unlawfnl cutting of trees, must not only show title or ownership of the land, but also possession or right to immediate possession at the time of the trespass.</p> <p>2. While a warrant for unimproved lands gives to the owner sheh constructive possession as will enable him to maintain trespass, it cannot be effective against one who has an actual adverse possession of the land.</p> <p>3. Actual possession may be by residence without cultivation or by inclosure and cultivation without residence.</p> <p>4. Where, in an action for unlawful cutting of timber on unimproved land, plaintiff claims by a record title, but does not aver or show possession and the defendant shows actual possession for more than forty years, plaintiff cannot maintain the action, but must first establish title by an action of ejectment.</p>

<p>Mines and mining — Surface support — Release—Damages—Covenants — Injury to water supply — Drilling well for water — Care of well — Negligence—Evidence—Presumption—Equity maxim — Sic uiere tuo.</p> <p>1. The owner of an entire estate may, in conveying, relieve the owner of the mineral estate from the duty to support the surface and from liability for any injury or damages by mining and removing coal.</p> <p>2. Where in such case the grantee simply removes coal, it is not improper mining; even if such removal is negligently done, there can be no recovery.</p> <p>3. Where a conveyance of coal provides that if the removal of the coal destroys a water supply of a building on the surface, the grantee shall bore a well and ease it to a certain depth, and it appears that the successor in title to the grantee drilled and cased a well, and that thereafter the casings were broken and destroyed in mining operations to 'the destruction of the water supply, the court, in an action against the owner of the coal for damages, commits reversible error if it charges that defendant was required to refrain from all acts which would interfere with, injure or destroy the well.</p> <p>4. In such case, defendant owes the owner of the surface only the duty of refraining from negligent acts, which might injure the well.</p> <p>5. The maxim that one must so use his own property as not to injure another has reference not to the mere infliction of damage but to the violation of a right and means only that one must so use his own as not to violate a legal right of another.</p> <p>6. Where coal is being mined solely by one person from underlying strata owned by him, the presumption is, when the coal is removed, the owner removes it, although done by his employees; and if there is evidence, such as breaking, subsidence and other conditions, to indicate that coal was being removed, there is a sufficient connection between defendant and acts resulting in an injury to the surface from the mining of the coal.</p> <p>Pa. Cent. Brewing Co. v. Lehigh Valley Coal Co., 250 Pa. 300, distinguished and explained.</p> <p>Sanderson v. Coal Co., 86 Pa. 401, 102 Pa. 370, commented on.</p>

<p>Ejectment — Boundaries —■ Uncertainty — Evidence — Case for court — Burden of proof.</p> <p>1. In an action of ejectment the case should not be submitted to the jury where plaintiff’s evidence presents no definite or certain limits to the land in controversy, and it would not be possible for a surveyor to locate the boundary lines, or for the jury to describe the property in a verdict.</p> <p>2. In such case the burden of proof is on plaintiff to show the property lines.</p>

<p>Negligence — Railroads — Crossings — "Biop, looh and listen”— Contributory negligence — Judgment on record — Act of April SO, 1911, P. L. 70.</p> <p>In an action against a railroad company for personal injuries sustained at a grade crossing, it is proper to enter judgment on the whole record under the Act of April 20, 1911, P. L. 70, where the evidence shows that at the crossing there were two tracks, that if plaintiff had looked, at a point five feet away from the first track, he could have seen a train approaching on the second track for a distance of 600 or 700 feet, and that if, after crossing the first track safely, he had looked before entering on the second track, he could have avoided the accident.</p>

<p>Appeal, No. 58, Oct. T., 1921, by plaintiff, from order of O. P. Allegheny Co., July T., 1915, No. 1904, making absolute rule to open judgment, in case of Thermo Water Lift Co. v. Air Tight Steel Tank Co.</p> <p>Rule to open judgment. Before Swearingen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Rule absolute: 68 Pitts. L. J. 710. Plaintiff appealed.</p> <p>Error 'assigned,, inter alia, was order, quoting it.</p>

Appeal, No. 70, Oct. T., 1921, by plaintiff, from decree of O. P. Allegheny Co., July T., 1920, No. 1126, dismissing bill in equity, in case of Emily S. Porter et al. v. Mary Malissa Wolf et al., executors of TJ. M. Morgan, deceased, and James Moody, ancillary administrator c. t. a., of estate of U. M. Morgan, deceased. Bill to enforce alleged trust. Before Shafer, P. J. The opinion of the Supreme Court states the facts. Bill dismissed. Plaintiffs appealed.

<p>Lease — Oil and gas lease — Minerals ferae naturae — Mines and mining — Contracts—Construction—Duty of lessees — Damages— Burden of proof — Mistahe in boring — Injunction—Discretion— Reservation — Royalties—Maxims—Mquitas sequntur legem.</p> <p>1. As between the parties to a grant of oil and gas in place, a conveyance thereof is binding and effective, even though they may escape and be lost before being reduced to absolute possession.</p> <p>2. The fact that water and oil, and still more strongly gas, may be classed as minerals ferse naturae, does not determine they are not capable of ownership when in place and may not be made the subject of a grant.</p> <p>3. Oil and gas are minerals, while in place are part of the land exactly like other minerals, and may be leased separate and apart from the surface of the land and from other minerals beneath it.</p> <p>4?. All written instruments relating to a particular kind of business must be construed with due regard to the known characteristics of the business.</p> <p>5. The fact that there is a distinction, upon questions of interpretation, between an oil and gas lease and other leases, has no relation to the interest or estate conveyed; the dominion of the owner is as absolute over the fluid as over the solid minerals.</p> <p>6. It is the duty of the lessee in a gas lease to promptly locate and drill wells on the leased property, with due regard to similar operations on adjoining lands.</p> <p>7. Where by a trespass one obtains possession of property which is his, damages for the trespass cannot be measured by the value of the property.</p> <p>8. Wben tbe lessee of a property and all tbe gas and oil under it, in good faith and in the belief that be has tbe right so to do, bores a well at a point forbidden by tbe lease and obtains gas therefrom, tbe mistake in boring at that point does not operate to retransfer to tbe lessor tbe title to the gas.</p> <p>9. An injunction will be granted only as a matter of grace in tbe exercise of a sound discretion, where it will not barm defendant more than it will benefit plaintiff; tbe rule is otherwise, however, where defendant acts in bad faith, or in a race with tbe law to accomplish bis purpose before injunctive relief can be obtained, in which events tbe relative benefits and disadvantages ordinarily will not be considered.</p> <p>10. Where a lease covers a tract of land and grants all tbe oil and gas under it, but forbids tbe lessor from boring wells on a part of the tract, this is not a reservation of a right on tbe part of tbe lessors to bore a well within tbe prohibited area. If they attempt to do so an injunction may be granted against them.</p> <p>11. Where a gas well is drilled by defendant within a prohibited area, and plaintiffs, in consideration of receiving a larger royalty than is provided by tbe original lease, agree to tbe drilling therein of a second well, for tbe purpose of protecting tbe flow from tbe first, they cannot retain tbe excess royalty received from tbe second well and compel the abandonment of tbe first.</p> <p>12. Plaintiff has tbe burden of proving tbe amount of damages which be suffers, and these must be measured as of tbe time wben they accrued and not as of a later date wben tbe circumstances are materially altered.</p> <p>13. Kelly v. Phillips Gas & Oil Co., 262 Pa. 412, cited and distinguished.</p>

<p>Negligence — Automobiles — Infant near school house — Grossings — Contributory negligence — Conflicting evidence — Case for jury — Evidence of negligence from accident — Bes ipsa loquitur.</p> <p>1. It is the duty of a driver of an automobile to have his car under such control at street intersections as to be able to stop at the shortest possible notice.</p> <p>2. For a motor vehicle to run down a pedestrian who is in full view and does not suddenly change his course, is evidence of negligence.</p> <p>3. There may be negligence in failing to have a motor vehicle under proper control, without excessive speed.</p> <p>4. The tendency of small children to run across streets, especially at or near school houses, must not be ignored by drivers of motor vehicles.</p> <p>5. As a pedestrian may lawfully cross a street at any point, the fact that he crosses in the middle of the block, will not in itself charge' him with contributory negligence.</p> <p>6. In an action to recover for injuries to a child, six years old, run down by a motor truck near a school house, the case is for the jury where the evidence is conflicting, as to whether or not the child was at a street intersection, and as to whether or not she darted out from behind a trolley car.</p> <p>Negligence — Injuries to minor child — Damages—New triad— Discretion of court — Abuse—Appeal.</p> <p>7. In an action to recover damages for injuries to a minor child six years old, a verdict for $2,500 for the father, is not excessive, where it appears that his expenses, by reason of the accident, amounted to over $900.</p> <p>8. Nor is a verdict for $10,000 for the child necessarily excessive, where it appears that her leg was crushed, that she was confined to the hospital for five months, and that there would be an arrested growth of her leg with permanent deformity and disability.</p> <p>9. The lower court’s refusal of a new trial in such case is not an abuse of discretion so as to call for reversal on appeal.</p>

<p>Appeal, No. 96, Oct. T., 1921, by defendants, from decree of C. P. Allegheny Co., April T., 1920, No. 617, on bill in equity, in case of Jacob Shrut v. M. Láveme Huselton and S. H. Huselton, her husband, and Harry Gillman and Rebecca Gillman, his wife.</p> <p>Bill in equity for specific performance. Before Drew, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decree for specific performance. Defendants appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Negligence — Statement — Evidence — Allegata and probata — Amendment — Surprise—Waiver—Continuance — Appeal — Proximate cause — Fire—Oil on river — Spreading fire by wind — Intervening independent agency — Things to be naturally anticipated— Act of Cod or vis inertia.</p> <p>1. In an action to recover damages for the destruction of plaintiff’s wharf by fire, where the statement of claim charges negligence in permitting a burning board to be placed in a river covered with oil which was “being carried thence down the river and along and past plaintiff’s property,” and that defendant knew or should have known that the current of the river was carrying the oil down and along plaintiff’s property, it is error for the trial judge, after admitting evidence, against objection, that the oil before the fire extended from defendant’s operation to and past plaintiff’s wharf, to instruct the jury to disregard such evidence as not in accordance with the statement of claim.</p> <p>2. The ruling of the judge admitting the evidence was equivalent to an amendment of the statement; and, if defendant was not prepared to meet the issue in that form, it should have pleaded surprise, and asked a continuance; it is too late to raise that objection on appeal.</p> <p>8. In such ease, the fire resulting from the throwing of the burning board on the oil, the result must have been foreseen not only to be possible but probable and natural, to make defendant liable.</p> <p>4. An instruction that no recovery could be had unless the current carried the fire to the plaintiff’s wharf and such a result was naturally to be foreseen, is erroneous in view of evidence that the body of oil was continuous between the point of defendant’s operation and plaintiff’s wharf.</p> <p>5. It was also error to charge, in the absence of testimony of unusual wind conditions, that defendant was not bound to anticipate the action of the air currents, and if the fire was so conveyed, this would constitute an intervening independent agency which would relieve from liability.</p> <p>6. The ordinary danger of wind helping a fire to spread is one of the things to be naturally anticipated.</p> <p>Negligence — Damages—Insurance.</p> <p>7. Ordinarily the amount for which property is insured does not, in an action for its destruction by fire, afford a test of value, of sufficient probative effect to be admissible.</p> <p>Appeals — Evidence—Exception.</p> <p>8. Where no exception was taken to the admission of evidence at the trial, no objection to its admission can be made on appeal.</p>

<p>Workmen’s compensation — Widow—Remarriage of widow — Compensation to children.</p> <p>1. Under the Workmen’s Compensation Act of June 26, 1919, section 307, par. 4, P. L. 642, amending the Act of June 2, 1915, P. L. 736, where a widow remarries after having received compensation for a number of weeks, she is entitled to weekly compensation for one-third of the remaining 300 weeks, but not exceeding 100 weeks.</p> <p>2. The children’s compensation in such case, does not commence at the date of the widow’s remarriage, but is postponed until after she has ceased to receive compensation.</p>

<p>Appeal, No. 111, Oct. T., 1921, by defendants, from judgment of C. P. Allegheny Co., April T., 1921, No. 705, affirming decision of Workmen’s Compensation Board, in case of Mrs. John S. Pobloskie (formerly Mrs. Susanna Yoco) v. Equitable Coke Co., Defendant, and iEtna Life Insurance Co., insurance carrier.</p> <p>Appeal from decision of Workmen’s Compensation Board: 7 Dept. R. 1000. Before Stone, J.</p> <p>Decision affirmed. Defendants appealed.</p>

<p>Appeal, No. 68, Oct. T., 1921, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1920, No. 1742, on verdict for plaintiff, in case of J. Edward Gloekler v. Edward S. Painter, trading as Painter Motor Car Co.</p> <p>Assumpsit for breach of contract. Before Beid, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $1,616.59. Defendant appealed.</p> <p>Errors assigned, inter alia, were (1-3) rulings recited in the opinion of the Supreme Court, quoting record.</p>

<p>Wills — Decedents’ estates — Deficiency of personal assets — Beal estate — Conversion—Payment of insurance — Creditors—Failure to establish lien — Conversion—Necessiiy.</p> <p>1. Where there is a failure of personal assets with which to pay the debts of a decedent, creditors who have failed to establish a lien on the real estate cannot participate in the distribution of the proceeds of a sale thereof, in the absence of conversion by the will, although their claims have been approved at the audit of the executor’s account.</p> <p>2. Where a testatrix by her will gave no positive direction to sell real estate, but leaves personal assets insufficient to pay debts and legacies, and directs that her real estate shall be held for memorial purposes, there is no conversion of the real estate by necessity.</p> <p>3. The necessity must have been contemplated by testatrix, in order that the scheme of the will could be carried out, and not be merely a necessity as a matter of fact arising out of the actual circumstances of the estate after death.</p>

<p>Appeals, Nos. 73-6, Oct. T., 1921, by Casper Reel, John D. Quaill and George H. Quaill, legatees, from decree of O. C. Allegheny Co., Sept. T., 1920, No. 741, dismissing exceptions to adjudication, in estate of Almatia L. Reel, deceased.</p> <p>Exceptions to adjudication. Before Miller, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Exceptions dismissed. Casper Reel, John D. Quaill and George H. Quaill, legatees, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Wills — Perpetuity—Illegal devise — Intention—Trusts cmd trustees.</p> <p>1. A perpetuity is any limitation or condition which may take away or suspend the absolute power of alienation for a period beyond life or lives in being and twenty-one years thereafter. If there is any possibility that a violation of this rule may happen, the devise is void.</p> <p>2. The rule is to be applied after testator’s intentions are discovered ; its object is to defeat a manifest intention which is contrary to a well recognized policy of the law.</p> <p>3. The rule has to do with future estates, which, by possibility, may not become vested within the time prescribed by law; it applies only to future estates which are contingent, and has no application to vested estates.</p> <p>4. If an absolute term of years is specified by the testator, and no anterior term for a life in being is referred to, such absolute term cannot be longer than twenty-one years from testator’s death. The rule applies to both equitable and legal estates.</p> <p>5. Where a testator creates an active trust in two nephews, named as executors, and their successors, to collect, invest, accumulate, conserve and divide the property at the end of ninety-nine years, and provides that no portion of the estate, either principal or income, shall be parted with during that period, and that final distribution shall be made to the heirs of the two nephews living at that time, the gift is contingent, as there can be no vesting until the identity of the persons to take is determined, and the devise violates the rule against perpetuities.</p> <p>6. The prior estate held by the executors falls with the gift, and a resulting trust arises in the heirs at law and next of kin of the testator.</p> <p>7. Where the provisions creating the particular estate in trust are inseparable and dependent parts of the testator’s main scheme to tie up his residuary estate in the ultimate gift, and thereby prevent the vesting until a date too remote under the rule, such provisions, including all the agencies or means designed to accomplish the desired and forbidden end, are void.</p> <p>Wills — Perpetuities—Illegal devise — Trusts and trustees — Mining coal — Royalty agreement — Inseparable illegal purpose — Option — Time for acceptance necessary.</p> <p>8. Where a testator owning a controlling interest in the shares of a coal company and an absolute estate in a large acreage of coal, gives such estate to trustees, with active duties, to hold for ninety-nine years, and the terms of the will show an obvious purpose to violate the rule against perpetuities, a direction in the will 'that the “coal may be opened up and worked on a royalty to suit the company” is null and void.</p> <p>9. As such provision was the chief instrument to accomplish the illegal purpose of the will and was inseparably, connected with such purpose, it fails with the illegal trust created by the will.</p> <p>10. Even if it should be considered as separable from the will, and for the benefit of the corporation, it fails, because (1) it is not a devise upon a condition subsequent; (2) it is not a gift; (3) it could not become effective until the trustees entered into a contract with the company, and they had no power to do so; and (4) it was not an option, as no time for acceptance was stated.</p>

<p>Appeal, No. 65, Oct. T., 1921, by defendants, from judgment of O. P. Indiana Co., Sept. T., 1920, No. 233, approving decision of Workmen’s Compensation Board, affirming award of referee in case of Alice Nupp v. Estep Brothers Coal Mining Co. et al.</p> <p>Appeal from decision of Workmen’s Compensation Board. Before Langham, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decision of Workmen’s Compensation Board affirmed. Defendants appealed.</p> <p>Error assigned, inter alia, was judgment, quoting it.</p>

<p>Appeal, No. 103, Oct. T., 1921, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1921, No.'403, for defendants on question of law raised by affidavit of defense, in case of A. G-. Nesbitt, ancillary administrator of estate of Walter R. Her- ' rod, deceased, v. Charles H. Clark et al.</p> <p>Assumpsit on promissory notes. Before Stone, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Judgment for defendants on question of law raised by affidavit of defense. Plaintiff appealed.</p> <p>Error assigned, inter alia, was judgment, quoting it.</p>

Appeal, No. 56, Oct. T., 1921, by defendant, from order of C. P. Allegheny Co., Jan. T., 1921, No. 216, making absolute rule for judgment for want of a sufficient affidavit of defense, in case of Iron Trade Products Co. v. Wilkoff Co. Assumpsit for breach of contract to deliver steel rails. Rule for judgment for want of a sufficient affidavit of defense. Before Reid, J. The opinion of the Supreme Court states the facts. Rule absolute. Defendant appealed.

Appeal, No. 121, Oct. T., 1921, by plaintiff, from order of O. P. Allegheny Co., Jan. T., 1920, No. 536, refusing to take off nonsuit, in case of William J. Bally v. Pittsburgh Railways Company, a corporation, now in the hands of Charles A. Pagan, W. I). George and S. L. Tone, receivers. Trespass for personal injuries. Before Evans, J. The opinion of the Supreme Court states the facts. Nonsuit entered, which court refused to take off. Plaintiff appealed.

Appeal, No. 129, Oct. T., 1921, by defendant, from judgment of O. P. Allegheny Co., April T., 1920, No. 2054, on verdict for plaintiff, in case of Christian Moerlein Brewing Co. v. Ernest F. Busch. Assumpsit for money had and received. Before Carnahan, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $63,431.64. Defendant appealed. Error assigned, inter alia, was refusal of judgment for defendant, n. o. v.

Appeal, No. 72, Oct. T., 1921, by defendant, from order of C. P. Cambria Co., Dee. T., 1919, No. 6, awarding peremptory mandamus, in case of Commonwealth ex rel. D. P. Weimer, District Attorney, v. Burgess and Town Council of the Borough of Dale. Petition for mandamus. Before Stephens, P. J. The opinion of the Supreme Court states the facts. Mandamus awarded. Defendant appealed. Error assigned, inter alia, was order, quoting it.

Appeal, No. 81, Oct. T., 1921, by plaintiff, from order of O. P. Allegheny Co., July T., 1920, No. 2393, malting absolute rule to dissolve attachment, in case of Ed. Danziger v. Louis Ferber. Rule to dissolve attachment. Before Haymaker and Kline, JJ. The opinion of the Supreme Court states the facts. Rule absolute. Plaintiff appealed. Error assigned was order, quoting it.

Appeal, No. 156, Oct. T., 1921, by defendant, from judgment of C. P. Allegheny Co., July T., 1921, No. 1987, for plaintiffs on case stated, in suit of Caroline Grundler and Mary Fridl v. Mary Chmielinska. Case-stated to determine marketability of real estate. Before Carpenter, J. The opinion of the Supreme Court states the facts. Judgment for plaintiffs. Defendant appealed. Error assigned, inter alia, was judgment, quoting it.

Appeal, No. 119, Oct. T., 1921, by defendants, from judgment of C. P. Allegheny Co., Oct. T., 1920, No. 811, on verdict for plaintiff, in case of Charles E. Abersold v. J. Marcus and B. Marcus, et al. Trespass for libel. Before Evans, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $3,000 on which judgment was entered for $2,000. Defendants appealed.

<p>Appeals, Nos. 123, 124 and 125, Oct. T., 1921, by plaintiff, from judgment of C. P. Allegheny Co., Jan. T., 1919, Nos. 1740, 1777 and 1778, on verdicts for defendants, in cases of J. Stybr v. Peter G. Walter, J. Stybr v. M. N. Greer et al. and J. Stybr v. M. N. Greer et al.</p> <p>Assumpsit on promissory notes. Before Macfarlane, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were various rulings and instructions, sufficiently appearing by the opinion of the Supreme Court, quoting record.</p>

<p>Decedents’ estates — Ownership of personal property — Widow— Review — Executors and administrators — Gifts—Evidence—Estoppel.</p> <p>Where a widow claims household goods and paintings as her own property at the time of the inventory of her husband’s estate, but they are included in the inventory without her knowledge, and the executor’s account is audited and decree of distribution made, the household goods and paintings remaining in the widow’s possession, the widow is entitled, eleven years after the death of her husband, to a bill of review, and, on such review, if the evidence is sufficient to show that the goods were gifts to the claimant from the husband, she will be entitled to have them awarded to her. In such case the widow is not estopped.</p>

Appeal, No. 132, Oct. T., 1921, by plaintiffs, from judgment of C. P. Allegheny Co., July T., 1914, No. 1695, for defendant n. o. v., in case of Gertrude Hastings and Harry Hastings, by their guardian, the Fidelity Title & Trust Co. of Pittsburgh, v. South Shore Railroad Co. Trespass for death of plaintiff’s father. Before Carpenter, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $8,125.

Appeal, No. 133, Oct. T., 1921, by plaintiff, from judgment of O. P. Allegheny Co., July T., 1918, No. 1839, on verdict for defendant, in case of Sarah Nolan v. City of Pittsburgh. Trespass for personal injuries. Before Carpenter, J. The opinion of the Supreme Court states the facts. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was binding instructions for defendant, quoting record.

Appeal, No. 134, Oct. T., 1921, by defendant, from judgment of O. P. Allegheny Co., April T., 1920, No. 1058, on verdict for plaintiff, in case of Harry N. Craig, in his own right, and Harry N. Craig for the use of Hughes-Foulkrod Co., etc., v. RiterConley Manufacturing Co. Trespass for personal injuries. Before Haymaker, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $25,000. Defendant appealed.

Appeal, No. 144, Oct. T., 1921, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1920, No. 475, on verdict for plaintiff, in case of Edward T. Crnmley v. Pennsylvania Railroad Co. Trespass for personal injuries. Before Shafer, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $8,120. Defendant appealed.

Appeal, No. 14, Oct. T., 1921, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1918, No. 1287, on verdict for plaintiff, in case of William Brown v. American Steel Foundries. Trespass for personal injuries. Before Haymaker, J. The opinion of the Supreme Court states the case. Verdict and judgment for plaintiff for $1,750. Defendant appealed.

Appeal, No. 78, Oct. T., 1921, by Mary E. Lawman, claimant as legatee, from decree of O. C. Allegheny Co., June T., 1919, No. 707, dismissing appeal from Register of Wills, in estate of Lenore Lawman, deceased. Appeal from decision of register of wills refusing to admit to probate an alleged codicil. Before Miller, P. J., and Trimble, J. The opinion of the Supreme Court states the facts. Petition dismissed. Mary E. Lawman, claimant as legatee, appealed.

<p>Appeal, No. 159, Oct. T., 1921, by plaintiff, from decree of O. P. Allegheny Co., Jan. T., 1921, No. 12, dismissing bill in equity, on demurrer, in case of B. Y. D. Co. v. Kaufmann & Baer Co.</p> <p>Bill in equity for injunction and accounting. Before Shafer, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Bill dismissed. Plaintiff appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

Appeal, No. 79, Oct. T., 1921, by plaintiff, from judgment of O. P. Allegheny Co., July T., 1917, No. 1723, on verdict for defendant, in case of E. P. Duff, trading as P. Duff & Sons, v. Dwight E. Hamlin. Assumpsit for goods sold and delivered. Before Carnahan, J. The opinion of the Supreme Court states the facts. Verdict and judgment for defendant for $4,000. Plaintiff appealed.

<p>Negligence — Automobiles—Collision—Car driven by minor son without license.</p> <p>1. In an action to recover damages for death of plaintiff’s husband in a collision between two autotrucks, where it appears that the decedent’s truck was driven at the time by his son, an experienced driver under eighteen years of age without a license, the ease is for the jury on the conflicting evidence as to the cause of the accident; and binding instructions for defendant on the ground that the deceased was guilty of contributory negligence in permitting his son to drive the truck, are properly refused.</p> <p>2. In such case, the minority of the son had no causal relation to the accident.</p>

Appeal, No. 151, Oct. T., 1921, by Percy F. Smith et al., constituting the Board of the Assessment and Revision of Taxes, from order of O. P. Allegheny Co., July T., 1921, Docket B., No. 1178, sustaining appeal from tax assessment, in re Appeal of James D. Callery from assessment of personal property for taxation. Appeal from tax assessment. Before Shafer, P. J. The opinion of the Supreme Court states the case. Appeal sustained.

<p>Taxation — Personal property tax — Corporations — Foreign corporation — Tangible property — Registration—Doing business — Acts of June 17,1918, P. L. 507, and July 15,1919, P. L. 9Jf8 — Failure to make return.</p> <p>1. Shares of stock of a foreign corporation owned by a resident of Pennsylvania are subject to the personal property tax for county purposes under the Act of June 17, 1913, P. L. 507, where it appears that, although the corporation is registered to do business in the State, it has no tangible property in the State subject to the capital stock tax under the Act of July 15, 1919, P. L. 948.</p> <p>2. The auditor general’s assessment of a tax on the capital stock of such corporation is not conclusive upon the county authorities.</p> <p>3. Registration and authorization to do business are not sufficient to make a corporation liable to taxation on its capital stock.</p> <p>4. In determining whether a corporation is liable to a capital stock tax, patent rights or assignments thereof, cannot be considered. They are an intangible asset created through federal laws.</p> <p>5. Nor can the taxing authorities consider United States bonds, stock of domestic or foreign corporations, cash in bank, mortgages and other intangible assets that are referable to the domicile of the corporation where such assets have their situs or ownership.</p> <p>6. Where, on an appeal from a personal tax settlement, there is nothing on the record to show that a foreign railroad corporation has tangible property in this State, so as to render it liable to tax on its capital stock, the county authorities may levy the personal property tax on its stock in the hands of a resident taxpayer.</p> <p>1. If such company is doing business in Pennsylvania, it is liable to the State for a tax on its bonds, but if it is not doing business, the county is the proper body to receive the tax.</p> <p>8. Where a citizen acting in good faith fails to make a tax return, and takes an appeal from a personal tax settlement made against him, the board of revision should relieve him from the penalty imposed by the act.</p>

<p>Marriage — Proof of — Cohabitation and reputation — Illicit intercourse — Presumption—Claim of alleged widow of decedent — Husband and wife — Decedents’ estates — Evidence—Findings of fact— Orphans’ court — Appeal.</p> <p>1. A finding by the orphans’ court that a marriage did not in fact exist between decedent and a woman claiming to be his widow, when based upon sufficient and competent evidence, will not be reversed on appeal, in the absence of manifest error or mistake.</p> <p>2. When it is attempted to establish marriage without the usual formalities, the courts will examine with great scrutiny an alleged oral marital contract and the conduct of the parties in relation to each other before and after such contract.</p> <p>3. Where there has been an admitted illicit course of conduct for many years between a decedent and a woman claiming to be his widow, and the woman alleges a marital contract by words spoken by decedent, marriage will not be presumed because of cohabitation and reputation without proof of a changed relation.</p> <p>4. Marriage is a civil contract by which a man and woman agree to take each other for husband and wife during their joint lives, unless it is annulled by law. Each must be capable of assenting, and must in fact consent to form this new relation.</p> <p>5. Where an undoubted marriage in some form exists, the courts will hesitate to strike it down; but when the lips of a man are sealed by death, and he leaves no satisfactory evidence as. to the existence of such contract, they will be slow to establish it in derogation of the undoubted rights of those who follow him.</p>

<p>Appeal, No. 116, Oct. T., 1921, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1920, No. 1376, on verdict for defendant, in case of S. H. Putnam v. Ensign Oil Company.</p> <p>Assumpsit on promissory notes. Before Carnahan, J.</p> <p>From the record it appeared that suit was brought to recover on two promissory notes, one of them dated March 11, 1914, to the order of the High Grade Oil Refining Company of New York, for $2,000, payable at the Dominion Trust Company, Pittsburgh, and signed “Ensign Oil Company, incorporated, William H. Roberts, treasurer, E. E. Arrowsmith, secretary.” The other one is dated April 6,1914, and reads, “One month after date we promise to pay to the order of High Grade Oil Refining Company of New York $3,000 at Dominion Trust Company, Pittsburgh, without defalcation for value received.” Signed “Ensign Oil Company, incorporated, William H. Roberts, treasurer, E. E. Arrowsmith, secretary.”</p> <p>The notes were endorsed to the Dominion Trust Company, which subsequently failed. A receiver was appointed by the Common Pleas Court of Dauphin County. Mr. Adams, as receiver of that company, having endorsed these notes to S. H. Putnam, the latter now sues to recover on the notes against the maker.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned, inter alia, were various rulings and instructions appearing by the opinion of the Supreme Court, quoting record.</p>

<p>Negligence — Railroads—Master and servant — Defective coupler —Safety appliance — Federal acts — Contributory negligence — Federal Employers’ Liability Act of 1908 — Federal Safety Appliance Act.</p> <p>1. A brakeman who is injured while engaged in interstate commerce employment, by the failure of a defective coupler to act, may recover damages from his employer, although he himself may have been guilty of contributory negligence.</p> <p>2. The Federal Safety Appliance Act provides that an employee shall not be held to have assumed the risk of an injury due to the use of a coupling which fails to comply with the law, and the Federal Employers’ Liability Act of 1908 takes away the defense of contributory negligence if a defective coupler contributed to the injury.</p> <p>Appeals — Statement of questions involved — Evidence.</p> <p>3. Questions sought to be raised in the appellate court will not .be considered if they are not included in the appellant’s statement of questions involved.</p>

<p>Appeal, No. 80, Oct. T., 1921, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1919, No. 1992, on verdict for plaintiffs, in case of William Walker and Hay Walker, Jr., partners, trading and doing business as W. & H. Walker, for the use of W. & H. Walker, Inc., v. Charles F. Mason, trading and doing business as the Mason Oil Company.</p> <p>Assumpsit for breach of contract. Before Carpenter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiffs for $2,135.25. Defendant appealed.</p> <p>Error assigned, among others, was refusal of judgment for defendant n. o. v., quoting record.</p>

Appeal, No. 99, Oct. T., 1921, by plaintiff, from decree of C. P. Allegheny Co., July T., 1920, No. 1301, dismissing bill in equity, in case of Mable Louise Colwes v. Frank P. Meyer et al. Bill in equity to cancel deed. Before Ford, J. The opinion of the Supreme Court states the facts. Bill dismissed. Plaintiff appealed. Error assigned, inter alia, was decree, quoting it.

<p>Deed — Parent and child — Conveyance for support — Mental capacity of grantor — Confidential relation — Burden of proof — Evidence — Party dead.</p> <p>1. Where aged parents convey land, under an agreement for support and burial, to an unmarried daughter, who had lived with and eared for her parents during a period of years after her brother and two unmarried sisters had left the common home, and the daughter fulfills her agreement, the burden of proof, in the absence of evidence of fraud, is not on her, after the parents’ death, to show that she did not secure the deed by undue influence, or at a time when the grantors were mentally incapable.</p> <p>2. Where a brother, after the death of his father and mother, files a bill in equity against a sister for the cancellation of a deed given by his parents to the sister in their lifetime, the brother is an incompetent witness, as to matters occurring in the lifetime of the parents.</p>

<p>Decedents’ estates — Intestate laws — Bepresentation among col-laterals — First cousins — Second cousins — Acts of April 8, 1888, P. L. 816; April 87, 1865, P. L. 868; June 80, 1885, P. L. 851; May 85,1887, P. L. 861, and June 7, 1917, P. L. Jf89.</p> <p>1. Under the Act of June 7, 1917, P. L. 429, where an intestate leaves no nearer kindred than first cousins and second cousins, the latter do not share with the former in the distribution of the estate.</p> <p>2. Where there is a complete default of all those in whom the right of distribution is bestowed by the first nine sections of the act, but there are living three first cousins, children of two deceased aunts, and two second cousins, grandchildren of another deceased aunt, all of whom are descendants of one of the deceased grandparents of the intestate, the first cousins take to the exclusion of the second cousins.</p> <p>3. By linking together the 10th, 11th and 19th sections of the Act of 1917, and considering the 12th, the proper construction is reached that, when there is no living grandparent, and first cousins of the intestate survive him, second cousins, also surviving, are not next of kin (nearest blood relations), nor can they take by representation; hence they do not take at all.</p> <p>4. The Act of 1917 was not intended to change existing law and set up representation among collaterals generally.</p> <p>5. Section 10 of the act merely introduces the idea, in a general way, of who, in default of the nearer kindred provided for in the earlier sections, may inherit; it docs not undertake to specify under what conditions the surviving grandparents, or the descendants of dead grandparents, respectively, shall take, or in what proportions; that is left to section 12, which fully covers the ground.</p> <p>6. The legislation from 1833 to 1917 on the subject of representation among collaterals, considered and explained.</p> <p>Statutes — Construction—Views of framers of laws — History of statute — General revision of laws.</p> <p>7. While courts may not resort to views expressed by those who either draft or enact laws, for the purpose of determining the meaning of the words employed therein, yet, in order to get at the old law, the mischief and the remedy, and properly to understand and construe a statute embodying the latter, the history of the enactment may always be considered.</p> <p>8. When a statute under consideration is a general revision, the law, as therein written, will be deemed to be the same as it stood prior to the revision unless the courts find from the statute itself, or its history, a clear intention to change it.</p>

<p>Appeal, No. 120, Oct. T., 1921, by defendants, from judgment of C. P. Allegheny Co., Jan. T., 1921, No. 337, on verdict for plaintiff, in case of Danish Pride Milk Products Co. v. Jacob C. Marcus et al.</p> <p>Assumpsit for goods sold and delivered. Before Swearingen, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $1,914.59. Defendants appealed.</p> <p>Errors assigned, among others, were (1) refusal of defendants’ motion for judgment n. o. v., and (3, 4), rulings on evidence, referred to in the opinion of the Supreme Court, quoting record.</p>

<p>Appeals, Nos. 140, 141, 142 and 163, Oct. T., 1921, by Gertrude G. Fitzgibbon, Eleanor Fitzgibbon and Margaret V. Fitzgibbon, from decree of O. O. Allegheny Co., April T., 1920, No. 126, dismissing exceptions to adjudication, in estate of William Fitzgibbon, deceased.</p> <p>Exceptions to adjudication. Before Miller, P. J.</p> <p>William Fitzgibbon died on September 12, 1916, leaving to survive him Gertrude Fitzgibbon, his wife, and three daughters, Eleanor Fitzgibbon, Frances F. Grote, wife of Ludwig I. Grote and Margaret V. Fitzgibbon. Mrs. Grote died on April 26, 1919, leaving her husband to survive her.</p> <p>Errors assigned, inter alia, were decrees dismissing exceptions to adjudication.</p>

<p>Mortgage — Judgment entered on bond — Opening judgment — Mistake in calculation of amount due — Oontrol of judgment and execution — Payments—Assignment—N otice.</p> <p>1. Where a warrant of attorney to confess judgment, in a bond accompanying a mortgage, contains no limit as to time, judgment may be entered thereon by the mortgagee without waiting for the maturity of the obligation, or default thereon; but such judgment and execution thereon remain within the control of the court.</p> <p>2. The lien of the judgment relates back to that of the mortgage, and, in entering it, the mortgagee is acting within his rights, unless debarred therefrom by his fraudulent conduct, and that is primarily a question for the lower court.</p> <p>3. In liquidating the damages upon such a judgment, any errors which result from miscalculation should be adjusted by the court below without opening the judgment; as should the right to, and extent of, attorney’s commissions for collection.</p> <p>4. Payments made to a mortgagee without notice of an assignment are valid.</p>

Appeal, No. 184, Oct. T., 1921, by plaintiff, from judgment of O. P. Allegheny Co., Oct. T., 1920, No. 797, n. o. v. for defendant, on verdict for plaintiff, in case of A. W. Young v. Robert Thompson et al. Trespass for injuries to surface by subsidence. Before Macfarlane, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $2,250. Judgment for defendants n. o. v. Plaintiff appealed. Error assigned, inter alia, was judgment, quoting it.

<p>Appeal, No. 185,</p> <p>Oct. T., 1921, by defendant, from judgment of O. P. Allegheny Co., July T., 1920, No. 2287, on verdict for plaintiff, in case of A. C. Stevenson v. James C. Davis, Director General of Railroads, agent operating the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Co.</p> <p>Trespass for personal injuries. Before Haymaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff; motion by defendant for new trial refused; and judgment for plaintiff for $7,250. Defendant appealed.</p> <p>Error assigned, inter alia, was refusal of new trial, quoting order.</p>

<p>Appeal, No. 201, Oct. T., 1921, by defendant, from judgment of O. P. Allegheny Co., April T., 1919, No. 2188, on verdict for plaintiff, in case of Dollar Savings Fund & Trust Company, Executor of William H. White, deceased, v. Pennsylvania Co.</p> <p>Trespass under Federal Employers’ Liability Act for death. Before Haymaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $8,000, on which judgment was entered for $6,500. Defendant appealed.</p> <p>Error assigned, inter alia, was refusal of motion for judgment n. o. v., quoting record.</p>

<p>Equity — Accounting for profits — Purchase of coal lands — Joint owners — One party buying out the other — Signature to paper— Modification <of paper — Notice—Trust and trustees — Constructive trust — Trustee ex maleficio.</p> <p>1. Where two persons join together in the purchase of coal lands, and the first sells out his interest to the second, and thereafter the latter sells the whole estate in the lands at a profit to a person who had been previously negotiating for them at a price named, but had postponed acceptance, the second cannot compel his associate to account for half the profits, if it appears that he knew of the pending negotiations, and there is no evidence that, at the time he sold out, an agreement of sale had been made with the final purchaser.</p> <p>2. Where, in an equity suit, it appears that plaintiff and defendant were about to enter into an agreement, and that defendant refused to sign a paper unless a change of a word was made therein, and thereupon caused the word to be changed in plaintiff’s presence, and plaintiff subsequently caused the paper to be written in its original form, and plaintiff then signed it without being aware that a change had been made, plaintiff was bound to call the attention of defendant to the fact that he had presented a redrawn copy of the agreement in its original form, and, failing to do so, he could not ask a court of equity to assist him in taking advantage of defendant’s mistake.</p>

<p>Appeal, No. 34, Oct. T., 1921, by plaintiff, from decree of O. P. Allegheny Co., Oct. T., 1919, No. 462, dismissing bill in equity, in case of Charles W. Schmidt v. William J. Musser and L. C. Wick.</p> <p>Bill in equity to cancel coal lease. Before Swearingen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Bill dismissed. Plaintiff appealed.</p> <p>Error assigned, inter alia, was above decree, quoting it.</p>

<p>Appeal, No. 169, Oct. T., 1921, by defendants, from decree of O. P. Allegheny Co., July T., 1920, No. 535, on bill in equity, in case of Bernard Volk, Jr., v. Charles Volk et al.</p> <p>Bill for specific performance. Before Swearingen, J,</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decree for plaintiff. Defendants appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Gontract — ■Sale—Payments—Inconsistent recoveries — Election of remedy — Principal and surety.</p> <p>1. Where a contract provides that payments for merchandise delivered shall be made from time to time, the title thereto to remain in the payee until a certain amount has been paid, and the latter thereafter retakes possession of the property, his right to receive future payments at once ceases.</p> <p>2. This rule is applicable though suit to recover the payments was begun before the property was taken by the payee.</p> <p>3. A litigant who is entitled to either one of two inconsistent recoveries, cannot by his order of procedure obtain the right to both.</p> <p>4. lie who elects to disaffirm a contract, and acts upon his election, cannot afterwards affirm it to the injury of another; this is particularly true where the latter is a surety.</p>

<p>Appeal, No. 183, Oct. T., 1921, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1919, No. 981, on verdict for plaintiff, in case of William Zoller Co. v. Hartford Fire Insurance Co.</p> <p>Assumpsit on policies of live stock insurance. Before Ford, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $2,290.62. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions sufficiently appearing' by the opinion of the Supreme Court, quoting record.</p>

<p>Negligence — Affidavit of defense — Facts not denied admitted— Practice, G. P. — Act of May 11¡-, 1915, P. L. 1¡SS — Evidence—Damages — Contributory negligence.</p> <p>1. Under sections 6 and 13 of the Practice Act of May 14, 1915, P. L. 483, where no affidavit of defense has been filed to a statement of claim which avers injury or death by the negligent act of the defendant, the plaintiff need not prove whose negligence was the cause thereof, and defendant will not be permitted to contest that question; but the proofs must show that the injury or death resulted from actual negligence of the character averred in the statement of claim, that plaintiff was damnified by reason thereof, and the extent of his damage.</p> <p>2. Since the act does not deal with the subject of contributory negligence, all matters relating thereto, whether substantive or procedural, remain unaffected by its passage.</p>

Appeal, No. 205, Oct. T., 1921, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1921, No. 2630, for defendants on affidavit of defense raising question of law, in case of W. B. Rhodes v. Henry Terheyden and J. M. Fickeisen. Assumpsit on promissory note. Before Swearingen, J. The opinion of the Supreme Court states the facts. Judgment for defendant- on question of law raised by affidavit of defense. Plaintiff appealed.

<p>Appeal, No. 35, Oct. T., 1921, by Alex Kosar et al., from order of O. P. Butler Co., Sept. T., 1920, No. 52, discharging rule to open judgment, in case of John Bungar v. Saint Michael’s Greek Catholic Church.</p> <p>Buie to open judgment. Before Briber, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Buie discharged. Alex Kosar et al., members of St. Michael’s Greek Catholic Church, appealed.</p> <p>Error assigned was order, quoting it.</p>

Appeal, No. 206, Oct. T., 1921, -by defendant, from decree of O. P. Allegheny Co., Jan. T., 1921, No. 1213, for plaintiff:, on bill in equity, in case of John D. Reilly v. Christopher Magee, Jr. Bill in equity for cancellation of agreement for exchange of real estate. Before Reid, J. The opinion of the Supreme Court states the facts. Decree for plaintiff. Defendant appealed. Error assigned^ inter alia, was decree, quoting it.

Appeal, No. 207, Oct. T., 1920, by defendant, from judgment of O. P. Allegheny Co., April T., 1920, No. 826, on verdict for plaintiffs, in case of Geo. S. Orth et al. v. Board of Public Education of the School District of Pittsburgh. Assumpsit for architect’s services. Before Reid, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiffs for $45,000. Defendant appealed.

Appeal, No. 97, Oct. T., 1921, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1917, No. 2059, on verdict for plaintiff, in case of Effie Leslie, a minor, by her father and next friend, Levi Leslie, and Levi Leslie in his own right, v. Samuel Catanzaro. Trespass for personal injuries. Before Shafer, P. J. The opinion of the Supreme Court states the facts.

<p>Building laws — Municipalities—Cities of second class — Officers —Ministerial duties — Permits—Garage—Board of city planning —Acts of June 7, 1895, P. L. 185; March 7,1901, P. L. 20; June 10,1911, P. L. 872; May 18,1915, P. L. 29.7, and June 21, 1919, P. L. 570 — Mandamus—Nuisance.</p> <p>1. The authorities of a City of the second class have no right to refuse a permit for the construction of a garage because of the disapproval of the location by the board of city planning, where it appears that such board had not as yet made its final report as to the areas in which, various trades and business could be carried on, and no hearing thereon was had before the city council as required by the Act of Juno 21,1919, P. L. 570.</p> <p>2. Where an ordinance provides that an official named shall issue a building permit, when the applicant therefor shall have complied with all the requirements of the laws and ordinances, the duty of the official is merely ministerial, and if he refuses to issue the permit, mandamus is the proper remedy to compel him to do so.</p> <p>3. The fact that the proposed garage is to be built in a residential neighborhood, and that its occupation and use will constitute a nuisance, is no ground for refusing a permit.</p> <p>4. The question as to the legality of the alleged intended use must await determination in proper proceedings after such use is attempted to be made of the building.</p> <p>5. The fact that the permit may be useless to the applicant, is no reason for refusing to issue it.</p>

<p>Negligence — Railroads—Interstate commerce — Federal Employers’ Liability Act of April HH, 1908, 85 Stat. 65, eh. 11& — Evidence —Braheman—Defective appliance — Case for jury — Happening of accident — Res ipsa loquitur.</p> <p>1. In an action for personal injuries under the Federal Employers’ Liability Act, plaintiff must show not only that the carrier was engaged in interstate commerce, but also that he himself was so engaged at the time of the injury.</p> <p>2. Where the evidence is clear enough to justify a declaration as to the class of work in which plaintiff was engaged, the court may so declare; but, where the question rests upon facts as to which there may be doubt, the solution is for the jury.</p> <p>3. The fact that intrastate as well as interstate ears were included in the train upon which plaintiff was injured, does not alter the character of the service.</p> <p>4. If plaintiff brings his suit under the Federal Employers’ Liability Act, instead of the Safety Appliance Act, he is bound to present a case free from facts showing the risk was one which had been assumed by him when employment was accepted.</p> <p>5. A railroad company is bound to exercise due care to ascertain whether its appliances remain in a reasonably safe condition, and to remedy any defects which may be discovered.</p> <p>6. In an action by a brakeman against his employer for injuries sustained by the breaking of a defective ladder on a car, the case is for the jury where the only witness as to the defective condition of the ladder was plaintiff himself, and the witnesses for defendant testify that no such defect appeared upon inspection.</p> <p>7. The mere fact of the happening of the accident gave rise to no presumption of negligence.</p> <p>Negligence — Injuries—Evidence—Expert testimony.</p> <p>8. In an accident case, testimony by a physician that a permanent injury complained of could have occurred from the accident, is insufficient, if the finding of the jury is to rest alone on expert testimony. To be effective, such witness must necessarily state at least that the present condition probably resulted from the injury.</p> <p>9. Where one of two or more possible causes may have resulted in an injury, the burden is on plaintiff to show that the one for which defendant was responsible was the proximate cause, and that the harm done followed as the natural and probable result, without the intervention of some intermediate agency not attributable to defendant’s wrongful act.</p> <p>Appeals — Question not presented in court below — Statement of questions involved.</p> <p>10. Where a question is not raised in the court below, it will not be considered on appeal.</p> <p>11. If a question is not included, or plainly suggested, in the statement of questions involved, it will not be considered by the appellate court.</p> <p>Appeals — Excessive verdict — New-trial — Discretion of court— Abuse.</p> <p>12. The exercise of the power to set aside a perverse verdict, when injustice is apparent, is ordinarily for the court below. It is only where there is an abuse of discretion that a verdict will be set aside by the appellate court.</p>

<p>Mortgage — Bond—Judgments—Assignments—Petition to compel assignment.</p> <p>A bank holding a mortgage, bond and two junior judgments against a corporation, will not be compelled to assign them, in payment of the mortgage debt and interest thereon, to certain parties, who deny the validity of the two judgments, where other parties interested in the church offer to pay the entire indebtedness of the church, including the two judgments.</p>

<p>Appeal, No. 193, Oct. T., 1921, by plaintiff, from judgment of O. P. Allegheny Co., Oct. T., 1917, No. 1092, for defendant n. o. v., in case of McNulty Bros. Co. v. Pennsylvania R. R. Co. et al.</p> <p>Scire facias sur mechanic’s lien. Before Stone, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff. Judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was judgment, quoting it.</p>

<p>Appeal, No. 18, Jan. T., 1922; by defendant, from order of C. P. Northampton Co., Feb. T., 1920, No. 84, sustaining demurrer to return to writ of mandamus, in case of Commonwealth ex rel. Owen J. Roberts v. Victor E. Tice, City Controller of the City of Bethlehem.</p> <p>Petition for writ of mandamus. Before McKeen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court sustained a demurrer to return to writ. Defendant appealed.</p> <p>Error assigned, inter alia, was order, quoting it.</p>

Appeal, No. 192, Oct. T., 1921, by O. S. Sanders et al., petitioners, from decree of O. P. Clarion Co., May T., 1921, No. 79, dismissing petition for appointment of trustees, in tbe matter of Mt. Calvary Methodist Protestant Church. Petition for appointment of trustees of a church under Act of June -5, 1913, P. L. 435. Before Sloan, J. The opinion of the Supreme Court states the facts. Petition dismissed. C. S. Sanders et al., petitioners, appealed.

<p>Municipal contracts — County courthouse — Alterations — Commissions — Beduation — Consideration — Architect — Approval of contract by grand jury and quarter sessions — Amendment of statement — Quantum meruit — Statute of limitations — Act of April 15, 188k-, P- L. 589.</p> <p>1. County commissioners have no authority to enter into a contract with an architect to furnish plans and specifications and superintend additions and alterations to an existing courthouse, prior to securing the approval of the grand jury and court of quarter sessions to such additions and alterations, as required by the Act of April 15, 1834, P. L. 537, 539.</p> <p>2. An agreement for drawings, plans, specifications, contracts and general supervision of the work, is for a part of the enlargement of the building as much as any other work or material.</p> <p>3. Where the architect brings an action against the county on such a contract, he cannot amend his statement by adding a claim on a quantum meruit for the preparation of plans and specifications for the information of the grand jury, if it appears that the claim is not brought upon the record until thirteen years after the work was done, as the statute of limitations has then run.</p> <p>4. If the suit involves additions and alterations to a county jail, and they were properly authorized, the architect may recover for his services thus rendered.</p> <p>5. Where it appears that, at the architect’s request, a change of material for the jail was made involving a large increased cost to the county, an agreement by the architect to reduce his commissions from the amount stated in the contract, is based on a sufficient consideration.</p> <p>6. Where the county calls a witness who testifies that the architect agreed to reduce his commission to either two or two and one-half per cent, but that he could not recall which, the architect should be allowed two and one-half per cent instead of two per cent.</p> <p>7. The cost of removal of old buildings and the cost of testing steel, both necessary for the construction work, are properly a part pf the cost of the improvement on which the architect is allowed commissions.</p> <p>Appeals — Modification of judgment — Acts of May 20,1891, P. L. 101, and April 22, 1905, P. L. 286.</p> <p>8. Where the Supreme Court on appeal allows certain items of increase to the amount of the verdict for plaintiff and it appears that the questions involved in the items are purely legal, the judgment will be entered, in accordance with the Acts of May 20, 1891, P. L. 101, and April 22, 190S, P. L. 286, as the court below should have entered it.</p>

<p>Contract — Sale of land — Conditions—Sale of stock of corporation — Costs divided.</p> <p>1. Where a land company enters into an agreement to sell land, and in the agreement covenants that it will assist the purchaser “in obtaining subscriptions to twenty thousand shares of stock” of a company organized to take over the land and build thereon a manufacturing plant, and it appears that the plant could not be established on the land unless the money was raised by the sale of the stock, the condition is not fulfilled if the parties fail to obtain subscriptions for all the twenty thousand shares.</p> <p>2. In such case assistance by the land company in the sale of part of the twenty thousand shares is not a compliance.</p> <p>3. In this ease the costs were divided between the parties.</p>

<p>Foreign attachment — Plaintiff attaching money in his own hands — Quashing writ — Irregularity in record, — Res adjudicaia— Measure of damage for breach of warranty — Acts of April 28, 1917, P. L. 102, and April 18, 1919, P. L. 72 — Appeals—Practice-Questions not raised below.</p> <p>1. The plaintiff in foreign attachment may attach money in his own hands, but, if for any sufficient reason the attachment can he shown to he void in law, it may he quashed.</p> <p>2. As a general rule writs of foreign attachment will not be quashed unless some fundamental irregularity appears in the record itself, and cases where this principle has been departed from will he found to present unusual features, which distinguish them from the rule as stated.</p> <p>3. A motion to dissolve a foreign attachment is the proper practice, where the suit may remain as a pending action notwithstanding defects in the record.</p> <p>4. A motion to quash the writ is proper, where the defects depended on are fundamental in character and such as put plaintiff completely out of court.</p> <p>5. Facts which will support a motion to quash the writ will sustain one to dissolve the attachment, but the reverse is not always true.</p> <p>6. An applicant to quash a writ may not aver simply a defense on the merits, or a good legal answer to the alleged debt itself, he must point to some defect in the record which renders the proceeding fundamentally irregular and void.</p> <p>7. If the most that is averred is a defense on the merits, or simply a good legal answer to the alleged debt itself, such a defense must be developed at the trial, unless an agreement on the facts, or something tantamount thereto, appears, which shows a case so fully developed that, if on trial, it would require binding instructions for defendant.</p> <p>8. Under the Acts of April 20, 1917, P. L. 102, and April 18, 1919, P. L. 72, the appellate court, on appeals from orders on motions to quash or dissolve foreign attachments, will examine the proofs to see if there is any evidence to warrant the findings of the trial court or to sustain the action complained of; but, in making such examination, the prevailing presumption “that everything was done rightly and according to law,” still holds.</p> <p>9. As the Act of 1917 allows an appeal from the refusal to quash a writ, which is an interlocutory order, the usual rule governing such orders applies, and the record must present plainly a clear abuse of discretion, before a reversal can be had.</p> <p>10. Where a writ of foreign attachment is quashed the record showing such action must be self-sustaining.</p> <p>11. On an appeal from an order refusing to quash a writ of foreign attachment, a question not raised in the lower court will not be considered.</p> <p>12. Measure of damages for breach of warranty as to quality of personal property, not decided, because not properly raised.</p> <p>13. On such appeal, where it appears that defendant claimed the ease was res adjudicata by a prior suit between the same parties in another court, the appellate court will not pass on this question if it appears the record of the proceedings in the other court was not made part of the record in the case appealed.</p> <p>14. Not only the pleadings but also the stenographer’s notes of the first trial must be given in evidence in the second before the question of res adjudieata can bo reviewed.</p>

<p>Appeals, Nos. 117 and 118, Oct. T., 1921, by defendant, from order of C. P. Allegheny Co., Jan. T., 1920, Nos. 1212 and 2258, making absolute rule to disbar, in case of Thomas Balogh v. Richard H. Jackson.</p> <p>Rule to pay over money to client.</p> <p>Rule to disbar. Before Swearingen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Rules absolute. Defendant appealed.</p> <p>Errors assigned were, inter alia, above orders, quoting them.</p>

<p>Appeal, No. 180, Oct. T., 1921, by Antonio Mannino, a defendant, from decree of O. P. Allegheny Co., Oct. T., 1919, No. 899, for plaintiff, on bill in equity, in case of Antonio Onorato v. Guglielmo Carlini et al.</p> <p>Bill for reconveyance of real estate, and for cancellation of mortgage.thereon. Before Carpenter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decree for plaintiff. Antonio Mannino, a defendant, appealed.</p> <p>Error assigned, among others, was decree, quoting it.</p>

<p>Workmen’s compensation — Modification of order — Reinstatement of original compensation order.</p> <p>1. "Where, following a compensation agreement based on total disability, an order is made terminating such agreement but directing further compensation to be paid as partial disability, “same to be determined after complainant has returned to work and his loss of earning power has been established,” the workmen’s compensation board has jurisdiction at any time during the period of 500 weeks to reinstate the original compensation agreement for total disability if such disability is established.</p> <p>2. In such case, it is immaterial that after claimant had returned to work the board had refused the petitions filed by him for review and modification, before the final one was filed oh which reinstatement was made.</p> <p>3. A proceeding under the Workmen’s Compensation Act is not “litigation” to which established "rules and principles of common law practice are applicable.</p> <p>4. Those appointed to administer the Compensation Act are vested with authority to act for the State in the capacity of parens patrias.</p>

<p>Negligence — Railroads—Speed—Signals—Warnings — Negative evidence of plaintiff — Positive evidence of defendant — Gase for court.</p> <p>1. Railroads operating their trains in the open country may move them at such rate of speed as the character of their machinery and roadbed may make practicable.</p> <p>2. In operating' trains in the open country, it is not the rate of speed at crossings that is the negligence of the company hut the failure to give proper notice of the approach of the train.</p> <p>3. In an action for death of a passenger on an automobile truck in a collision with a train at a crossing in the open country, the evidence of defendant’s failure to give proper signals and warnings is insufficient to submit to the jury, where the testimony of the witnesses for plaintiff was all negative in character, being, in effect, that they did not hear any signals without showing that they were watchful or attentive for a signal, while numerous witnesses, both employees of defendants and others, testified positively that they heard the whistle blow and the bell ring.</p>

<p>Appeal, No. 204, Oct. T., 1921, by defendants, from decree of O. P. Allegheny Co., Oct. T., 1917, No. 55, on bill in equity, in case of Charles O. P. Rolshouse v. W. C. Wally.</p> <p>Bill in equity for an accounting.</p> <p>Exceptions to report of George J. Kambach, Esq., master. Before Haymaker, J.</p> <p>Decree for plaintiff. Defendants appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

Appeal, No. 195, Oct. T., 1921, by Potter Title & Trust Co., guardian of Lovisa McCullough, from decree of C. C. Allegheny Co., May T., 1921, No. 276, dismissing.petition to revoke order to sell real estate, in estate of John McCullough, deceased. Petition to revoke order to sell real estate. Before Miller, P. J. The opinion of the Supreme Court states the facts. Petition dismissed. Potter Title & Trust Co., guardian of Lovisa McCullough, appealed.

<p>Wills — Construction — Devise — Fee cut down by subsequent words — Bale of real estate — Distribution of proceeds — Limitation of devise — Trust—Precatory and mandatory words — "Desire”— "Wish" — W'Ords and phrases.</p> <p>1. Such words as “desire” or “wish,” generally precatory, when used in connection with an act to be done by some person named by testator, are mandatory when expressive of the intent of testator to be carried out without the intervention of another’s will.</p> <p>2. Where testatrix gives her real estate to her husband, except one parcel, and later in the will directs, “I also desire, should my husband wish to dispose of all the remainder of the real estate, in</p> <p>my name, he may do so with the provision that my daughter......</p> <p>receives two-thirds of the proceeds of said sale,” the daughter is entitled to two-thirds of the proceeds of whatever real estate her father sells.</p>

<p>Negligence — Piling boards in street — Evidence—Case for jury— Infants.</p> <p>In an action for damages for personal injuries to a child ten years old, suffered while playing around a pile of logs placed by defendant in a street, a verdict for defendant will be sustained, where the evidence for plaintiff tended to show that the logs were so carelessly piled that they were liable to roll down and injure children playing about them, while defendant’s evidence showed due care.</p>

<p>Criminal law — Murder—New trial — After-discovered evidence— Discretion of court.</p> <p>1. The Supreme Court will not, in a murder case, reverse the action of the court below in refusing a new trial, except in ease of a manifest abuse of discretion.</p> <p>2. Where the application for a new trial is- based on after-discovered evidence, the refusal of a new trial will be sustained, where it appears that the so-called after-discovered evidence, might have been produced at the trial, that it related to very trivial matters, not vital to the case, and that it should not and probably would not result in a different verdict.</p> <p>Appeals — Assignments of error — Criminal law — Murder—Confession.</p> <p>3. The Supreme Court will not, at the argument of an appeal in a murder case, consider a complaint as to the manner in which a confession was secured, where no error was assigned to the admission of the confession.</p>

<p>Appeal, No. 29, Jan. T., 1922, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1920, No. 644, affirming decision of Workmen’s Compensation Board, in case of Frances M. Mc-Neill v. Director General of Railroads, United States Railroad Administration of Philadelphia and Reading Railroad Co.</p> <p>Appeal from decision of Workmen’s Compensation Board. Before Barratt, P. J.</p> <p>The opinion of the Supreme Court states the facts. - -></p> <p>Appeal dismissed. Plaintiff appealed.</p> <p>Error assigned, inter alia, was judgment, quoting it.</p>

<p>Practice, G. P. — Affidavit of defense — Doubtful averments — Bes adjudícala.</p> <p>1. An evasive affidavit of defense is had.</p> <p>2. If an affidavit of defense leaves in doubt exactly what it means, the doubt must be resolved in favor of the plaintiff.</p> <p>3. An averment in an affidavit of defense that a pending cause of action had been determined in a prior proceeding, must be so exact and full as to remove all doubt on the subject. Hence the facts in regard to the prior ease must be fully set forth in the affidavit, or the proceedings must, by reference, be incorporated in the affidavit.</p> <p>Entireties — Estate by entireties — Husband and wife — Effect of divorce — Deed—Lease—Division of income — Equity.</p> <p>4. A title by deed retains the incidents which pertain to it at its inception. Hence a divorce of the parties does not destroy the incidents of an estate by entireties, either as relates to the final disposition of the property or to its income while both parties are alive.</p> <p>5. The incidents of an estate by entireties are that the income of the property belongs to each in its entirety and not to one exclusively, and the corpus passes to the survivor unaffected by anything which the decedent may have done.</p> <p>6. The right of either spouse to lease a property held by entireties and to collect the rent thereof, is not an incident of such an estate, but only flows from the fact that the parties hold by entireties.</p> <p>7. The acts relating to the property of married women do not alter the incidents of an estate by entireties, but since their passage a purchaser of the title of one acquires no right of possession during the life of the other, neither can sell even the expectancy of survivorship, without the joinder of the other, nor can a valid title to the income or expectancy of survivorship of one be obtained by a sheriff’s sale or under proceedings in bankruptcy.</p> <p>8. After a divorce, unless some other equity has intervened, a court distributing the income of an estate held by entireties, will divide it equally between the parties.</p> <p>9. So too the parties, after a divorce, may agree to the disposition of such income, and the agreement will be binding and enforceable.</p> <p>10. After a divorce, if one of the parties collects more than an equal portion of the income, the law will imply a promise to pay to the other his or her fair share thereof.</p> <p>Case law — Opinions—General expressions — Maxim.</p> <p>11. General expressions in an opinion must always be limited to the facts of the case. If this were not so, every dictum would become a binding precedent.</p> <p>12. Myer’s Estate (No. 2), 232 Pa. 95, distinguished.</p>

<p>Negligence — Damages—Evidence—Experts — Opinion — Disease result of injury — Loss of earning power.</p> <p>1. When expert testimony is relied on to show the connection between an alleged cause and a certain result, it is not enough for the doctors to say simply that the ailment in question might have resulted from the assigned cause, or that the one could have brought about the other; they must go further and. testify at least that, taking into consideration all the attending data, it is their professional opinion the result in question most probably came from the cause alleged.</p> <p>2. Where it is equally probable that the disease resulted from two or more causes, for only one of which defendant is responsible, there can be no recovery.</p> <p>3. The loss of earning power and its amount must appear by proper and satisfactory proof and not be left to conjecture.</p> <p>4. Where a widow has not worked for wages for many years, but resided with her adult children, and kept house for them, it is reversible error for the court, in an action to recover damages for personal injuries to her, to submit to the jury the question of her loss of earning power, where there is no proof as to the value of the services which she did or could perform.</p> <p>5. In such case, evidence that a daughter temporarily left her , own employment to care for the mother and do the housework, and that the latter promised to pay the daughter wages she thereby lost, while proper as showing the mother’s damages during that time, did not tend to establish her earning capacity, as the daughter’s general employment was entirely different.</p> <p>6. The mere fact that plaintiff was not a wage earner, prior to the accident, will not prevent her recovering for loss of earning power.</p>

<p>Negligence — Minors — Employment of minor — Certificate — Charge — Harmless error — Act of May IS, 1915, P. L. !B86 — Evidence inadmissible when offered — Age of minor — Fact of age— Ignorance of age — Appeal.</p> <p>1. In an action by a minor under sixteen years of age brought by his father, and by the father in his own right, against the boy’s employer, where the father admits knowledge of his son’s employment in violation of the Act of May 13, 1915, P. L. 286, the defendant is entitled to binding instructions, so far as the individual claim of the father is concerned.</p> <p>2. The court cannot be convicted of error for refusing a general offer of defendant to show that the minor plaintiff was sixteen when employed, where the record and notes of trial show that, at the time of the offer, the defense relied on was lack of knowledge of the boy’s true age at the date of employment, and not the assertion that he was then'over sixteen.</p> <p>3. Evidence that the minor made a false statement of his age to defendant prior to his employment is inadmissible.</p> <p>4. Where an objection to testimony is based on a reason, in itself good, according to the issues apparently involved, and the objection is sustained, the ruling will be affirmed on appeal though appellant may then call attention to grounds, other than those suggested when the ruling was made, which ordinarily would warrant the admission of the proofs tendered.</p> <p>5. A suggestion made in a charge that a Pennsylvania employer must obtain a certificate under the Act of May 13, 1915, P. L. 286, for all youthful employees, whether under or over sixteen, whereas the obligation extends only to those under that age, is not ground for reversal, where the jury were not told that the absence of the certificate made the defendant liable, and such instruction is therefore harmless error.</p> <p>Practice, G. P. — Trial — Evidence — Demonstration by another person's wounded hand.</p> <p>6. Refusal of the trial judge to permit the injured hand of a third person to be used before the jury, for purposes of demonstration, during the examination of a witness for defendant, is a matter within the control of the court below, and is not ground for reversal, where the appellate court is not convinced of an abuse of discretion.</p>

<p>Criminal law — Murder—Evidence—Duty of appellate court to review the evidence — Act of Feb. 15, 1810, P. L. 15.</p> <p>1. Under the Act of February 15, 1870, P. L. 15, it is the duty of the Supreme Court, on an appeal from a conviction of murder, to review both the law and the evidence, and determine whether the ingredients necessary to constitute first degree murder have been proved to exist.</p> <p>2. If there is competent evidence to support the verdict, the appellate court cannot usurp the functions of the jury and reverse merely because it might be contended they should not have believed the witnesses produced on behalf of the Commonwealth.</p> <p>3. The evidence in this case examined and held to be sufficient to sustain a conviction of murder of the first degree.</p>

<p>Criminal law — Murder—New trial — After-discovered evidence— Credibility of witness — Act of April 22, 190S, P. L. 21¡£.</p> <p>1. Where, after a conviction of murder of the first degree, a motion for a new trial is filed, and defendant is given fifteen days to file affidavits and depositions in support of his motion, which he fails to do, and seven weeks later a new trial is refused, defendant is not entitled to a rehearing in the absence of any explanation of his failure to take advantage of the previous opportunity given him.</p> <p>2. After-discovered evidence having for its purpose only the impeachment of the credibility of witnesses, furnishes no sufficient reason for a new trial.</p> <p>3. Where there is positive evidence that the deceased was shot with a revolver containing shells of a certain size, and that the revolver was wrenched from defendant at the time, after-discovered evidence that defendant also possessed other and larger shells, is insufficient upon which to base an application for a new trial.</p> <p>4. In such case the Supreme Court will not enter an order for additional inquiry by the court below as provided by the Act of April 22, 1903, P. L. 245, even if a petition had been presented to the Supreme Court in the manner provided by the act, which was not done.</p>

Appeal, No. 7, Jan. T., 1922, by plaintiff, from decree of C. P. No. 5, Phila. Co., Dec. T., 1918, No. 5111, on bill in equity, in case of Louis Piacentino v. George W. Young. Bill in equity for specific performance. Exceptions to findings of Martin, P. J. The court in banc, Martin, P. J., participating, sustained the exceptions, and entered a decree for plaintiff, Monaghan, J., filing the opinion. Defendant appealed. Error assigned, among others, was decree, quoting it.

<p>Accord and satisfaction — Performance — Agreement to accept promise in satisfaction — Consideration—Written evidence — Law for court.</p> <p>1. In an accord and satisfaction, the performance generally is the carrying out of an agreement of accord, but it may be expressly agreed, or the circumstances may clearly show, that the promise or agreement of accord itself is to be taken in satisfaction of the original demand, and, when that is the case, the promise or undertaking, if supported by a sufficient consideration, is to be accepted as equivalent to performance or execution.</p> <p>2. An adjustment of unliquidated damages is a sufficient consideration for the promise.</p> <p>3. Where there is no conflict in the facts, and the determination of the intention of. the parties as to the accord, rests solely on the interpretation to be placed on their letters, the question is one of law for the court.</p> <p>Practice, G. P. — Affidavit of defense — Fraud—Insufficient averment.</p> <p>4. An affidavit of defense averring fraud is evasive and insufficient, if it does not aver facts showing the extent of the fraud or misrepresentations averred.</p> <p>Practice, G. P. — Statement—Foreign corporation — Registration —Doing business — Presumption of legality — Affidavit of defense.</p> <p>5. A foreign corporation may ordinarily maintain an action to enforce its contracts, within the State. It is restricted only when “doing business” within the meaning of the Pennsylvania registration law, and it has failed to register.</p> <p>6. No presumption arises that a foreign corporation in bringing a suit in this State, is a wrongdoer, and has failed to perform its legal obligation of registering.</p> <p>7. It need not in its statement of claim negative its violation of a penal statute.</p> <p>8. Where, in such case, the statement of claim shows a Pennsylvania contract, and that the transaction involved interstate commerce, but does not show that the company plaintiff was “doing business” within the meaning of the registration laws, an affidavit of defense is insufficient which makes no proper averments to indicate the necessity of registration.</p> <p>9. The mere averment that the corporation was doing business within the Commonwealth is not enough; facts must be set forth from which such conclusion can be drawn.</p>

<p>Evidence — Origin and history of transaction — Contract.</p> <p>1. Where evidence tends to make the fact in issue more or less probable, or shows the origin and history of the transaction between the parties, and explains its character, it is material.</p> <p>Evidence — Admissibility of — Items claimed established by verdict — Appeals—Contract.</p> <p>2. Objection to the admissibility of evidence as to certain items claimed, is untenable on appeal, where the verdict establishes that the contract, covering such items, was in truth entered into by the parties.</p> <p>Appeals — Improper inclusion of items in verdict — Beduction of judgment.</p> <p>3. Where an item has been improperly included in a verdict, the Supreme Court may, in affirming the judgment, modify it by striking the item therefrom.</p>

Appeal, No. 97, Jan. T., 1922, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1920, No. 3544, on verdict for plaintiff, in case of Carmel Farbo v. Wesley M. Caskey. Trespass for personal injuries. Before Finletter, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $15,000. Defendant appealed. Error assigned, among others, was refusal of defendant’s motion for judgment n. o. v.

<p>Workmen’s compensation — Mi/nors—Agreement.</p> <p>1. A party who has voluntarily agreed to accept from defendant compensation for injuries, calculated in a particular way, and has received and retained the money paid in accordance therewith, cannot thereafter prosecute a suit to recover additional compensation for the same injuries.</p> <p>2. Having agreed to and received compensation in the manner provided by the Workmen’s Compensation Act, an injured party waives all right to recover by any other method.</p> <p>. 3. Though a minor cannot be compelled to accept compensation under the Workmen’s Compensation Act, if he was injured while engaged in work in express violation of a statute, he may nevertheless voluntarily do so, and if he does he cannot afterwards maintain an action of trespass to recover damages for the same injuries.</p> <p>4. A minor who has sustained injuries in the course of his employment, may agree to receive from his employer the compensation provided by the Workmen’s Compensation Act, and if he does so with the approval of the board, he and his parents will be bound thereby, unless the agreement is modified or set aside by a supplemental agreement approved by the board, or because it is proved to the satisfaction of the board that the agreement was procured by fraud, coercion or other improper conduct of the employer.</p> <p>5. Lincoln v. National Tube Co., 268 Pa. 504, distinguished.</p>

Appeal, No. 139, Jan. T., 1922, by plaintiff, from order of C. P. No. 4, Phila. Co., June T., 1921, No. 2, making absolute rule to dissolve foreign attachment, in case of J. A. McLeod, to the use of Palmetta Guano Corporation, v. A. Hyman, otherwise known as Abram Hyman, and Peoples National Fire Ins. Co., garnishee. Buie to dissolve foreign attachment. Errors assigned were (1) reinstating rule to discharge and (2) making rule absolute, quoting record.

Appeal, No. 193, Jan. T., 1992, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1920, No. 5288, on verdict for plaintiff, in case of James Maharius, by his mother Perrepo Maharius and Perrepo Maharius v. Morris & Co. Trespass for personal injuries. Before Baldrige, J., specially presiding. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for James Maharius for $2,000 and for Perrepo Maharius for $500. Defendant appealed.

<p>Appeals, Nos. 76 and 77,</p> <p>Jan. T., 1922, by plaintiffs, from order of C. P. No. 4, Pbila. Co., Sept. T., 1919, No. 4622, refusing to take off nonsuit, in case of Louis Lafferty, Jr., by Ms father and next friend, Louis Lafferty, Sr., and Louis Lafferty, Sr., in his own right, v. Armour & Co.</p> <p>Trespass for personal injuries. Before Finletter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a compulsory nonsuit which it refused to take off. Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit, quoting record.</p>

Appeal, No. 178, Jan. T., 1922, by defendant, from order of C. P. No. 5, Phila. Co., Dec. T., 1920, No. 5395, discharging rule to open judgment, in case of Jacob Simkin, trading as Owners’ Auto Finance Co. v. Owen P. McGovern. Rule to open judgment. The opinion of the Supreme Court states the facts. Rule discharged. Defendant appealed. Error assigned, inter alia, was order, quoting it.