Volume 274 — Pennsylvania State Reports

Appeal, No. 211, Jan. T., 1922, by H. Frances Cragin, from decree of O. C. Pbila. Co., Oct. T., 1918, No. 76, dismissing exceptions to adjudication, in estate of Charles I. Cragin. Exceptions to adjudication of Thompson, J. The opinion of the Supreme Court states the facts. Exceptions dismissed in opinion by Gest, J. H. Frances Cragin, widow, appealed. Error assigned, among others, was decree, quoting it.

<p>Appeals, Nos. 41 and 199, by Estelle Alburger Derr, posthumous grandchild, from decree of O. C., Phila. Co., June T., 1900, No. 250, dismissing exceptions to adjudication, in estate of Philip H. Alburger, deceased.</p> <p>Exceptions to adjudication of Gest, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Exceptions dismissed in opinion by Lamorblle, P. J. See 30 Pa. Dist. R. 301.</p> <p>Estelle Alburger Derr, posthumous grandchild, appealed.</p> <p>Error assigned, inter alia, was above decree, quoting it.</p>

Appeals, Nos. 188 and 237, Jan. T., 1922, by John Metzger, assignee of deceased heir, from decree of O. C. Phila. Co., Jan. T., 1900, No. 250, dismissing exceptions to adjudication, in estate of Philip H. Alburger, deceased. Affirmed. Exceptions to adjudication of Gest, J. The opinion of the Supreme Court states the facts. Exceptions dismissed in opinion by Lamorelle, P. J. See 30 Pa. Dist. R. 301. John Metzger, assignee of deceased heir, appealed.

<p>Appeal, No. 141, Jan. T., 1922, by plaintiffs, from judgment of C. P. Delaware Co., June T., 1919, No. 699, on verdict for defendants, in case of Margaret L. Leedom et al. v. Alfred W. Palmer and E. Mary Palmer, Ms wife.</p> <p>Ejectment. Before Broomalíl, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for defendants: see 15 Delaware Co. R. 522. Plaintiff appealed.</p> <p>Errors assigned were various instructions, sufficiently appearing by tbe opinion of the Supreme Court, quoting record.</p>

<p>Appeal, No. 257, Jan. T., 1922, by plaintiffs, from judgment of C. P. Lebanon Co., June T., 1918, No. 102, on verdict for defendant, in case of Francis Lengle et al., by their guardian and next friend, the Lebanon County Trust Co., v. North Lebanon Township.</p> <p>Trespass for death, of plaintiffs’ father. Before Henry, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors 'assigned were various instructions and rulings appearing by the opinion of the Supreme Court, quoting record.</p>

<p>Contempt — Money judgment — Act of May 19, 1897, P. L. 67-Bond — Appeals.</p> <p>1. Under section 15 of the Act of May 19,1897, P. L. 67, where, in contempt proceedings, a money judgment has been entered against a private corporation, an appeal therefrom will be quashed unless bail is entered in double the amount of the judgment and all costs accrued and likely to accrue.</p> <p>2. In contempt proceedings, the supervisory power of the appellate courts is limited to determining whether the court below has transcended its jurisdiction, and whether each essential fact, the finding of which was excepted to and is assigned for error, has any substantial evidence to support it, or can be fairly deduced from other proved facts.</p> <p>Equity — Injunction—Contempt.</p> <p>3. The parties affected by an injunction cannot escape all punishment upon the ground that it is uncertain in scope or meaning; this is a matter for the consideration of the court below in determining the extent and character of the punishment, and cannot generally be the basis of an appeal.</p> <p>4. A decree should be interpreted in the light of the purpose intended to be accomplished by it.</p> <p>Constitutional law — Excessive bail — Contempt proceedings.</p> <p>5. Article I, section 13, of the Constitution of this State, which provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel punishment inflicted,” relates only to criminal proceedings; but the principles embodied therein are applicable in all suits, civil as well as criminal.</p> <p>Attachment — Contempt.</p> <p>6. An attachment partakes of the nature of a civil remedy to enforce obedience to a decree of the court, and not merely to punish for a contempt.</p> <p>Corporation — Officers in contempt — Municipalities—Contempt— Order of court — Service—Notice—Punitive order — Order to make good.</p> <p>7. An order in a contempt proceeding is not punitive in its nature, and hence is not excessive, where it only requires the party, against whom it is made, to make good the expense which the other will necessarily have to incur because of the violation of the injunction.</p> <p>8. The officers of a corporation will be held liable for contempt, if they knowingly breach an injunction decree against the corporation.</p> <p>9. Where the parties against whom the proceedings for contempt are taken had actual notice of the scope of a decree of the court, they may be punished though the injunction was not formally served upon them.</p> <p>10. A municipality will not be deprived of its right to punish one who has violated a decree in its favor, merely by reason of the fact that its mayor has endeavored to enforce a right given by the decree without applying to the court for assistance, and this is particularly so where all the matters, of which complaint is made, occurred prior to the action taken by the mayor.</p> <p>11. A municipality, as the state’s agent in charge of her streets, can enforce an injunction in regard thereto, although its mayor erred in the course he pursued in relation to the matter.</p> <p>12. Not determined whether the officers of a corporation may be held liable for contempt if they fail to exercise due diligence to prevent the subordinate employees from violating a decree of the court.</p>

Appeal, No. 340, Jan. T., 1922, by plaintiff, from decree of C. P. No. 1, Phila. Co., Dec. T., 1920, No. 5688, dismissing bill in equity, in case of Mary T. Warrington v. Brooklyn Trust Co., Trustee for Mary E. Young et al., under will of Mary E. Brown, deceased. Bill in equity to quiet title. Before Patterson, J. The opinion of the Supreme Court states the facts. Bill dismissed. Plaintiff appealed. Error assigned, inter alia, was decree, quoting it.

<p>Negligence — Automobiles—Collision with wagon — Evidence-Case for jury.</p> <p>1. Where an autotruck, driven at a rate of fifteen to twenty miles an hour, approaches a switch of an electric railway, alongside of which is a small depression caused hy the sinking of a Belgian block, and the chauffeur applies the brakes, and in swinging to one side runs twenty feet and crashes into the rear of a standing wagon, twenty feet from the switch, with such force as to drive the wagon against a telegraph pole, and injures the driver thereof, the question of the chauffeur’s negligence is for the jury.</p> <p>Appeals — Statement of questions involved — Printed argument— Assignments of error.</p> <p>2. A question raised in an assignment of error, will not be considered, where it is not referred to either in the printed argument, or in the statement of questions involved.</p>

Appeal, No. 85, Jan. T., 1922, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1919, No. 3728, on verdict for plaintiff, in case of Howard Fish v. Joseph R. Stulb. Trespass for personal injuries. Before Shoemaker, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $3,000. Defendant appealed. Error assigned, inter alia, was in overruling defendant’s motion for judgment n. o. v., quoting record.

Appeal, No. 33, Oct. T., 1922, by defendant, from judgment of O. & T. Butler Co., June T., 1921, No. 3, on verdict of murder of the first degree, in case of Commonwealth v. H. A. Blakeley. Indictment for murder. Before Reiber, P. J. The opinion of the Supreme Court states the facts. Verdict of guilty of murder of the first degree on which judgment of sentence was passed. Defendant appealed.

<p>Appeal, No. 317, Jan. T., 1922, by defendants, from judgment of C. P. No. 1, Pbila. Co., Sept. T., 1921, No. 3742, affirming order of Workmen’s Compensation Board, affirming award of referee, in case of Francis Roach v. Oswald Lever Co., defendant, and American Mutual Liability Insurance Co., Insurance Carrier.</p> <p>Appeal from award of Workmen’s Compensation Board affirming award of referee. Before Shoemaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Order affirmed. Defendant appealed.</p> <p>Error assigned, inter alia, was order, quoting it.</p>

<p>Marriage — Contract—Breach of promise — Form of action — Assumpsit — Defense—Practice, C. P. — Act of May Ik, 1915, P. L. 1¡SS —Motion to strilce out evidence — General objection.</p> <p>1. The appropriate action in which to recover damages for breach of promise of marriage is assumpsit.</p> <p>2. If the action is brought in trespass, defendant may file an affidavit of defense, and proceed as if the suit were in assumpsit.</p> <p>3. In an action for breach of promise of marriage, where defendant does not, in his affidavit of defense, set up a prior marriage, and a consequent disability of plaintiff to contract a marriage with him, he cannot, under the Act of May 14, 1915, P. L. 483, set up such a defense at the trial.</p> <p>4. If at the trial it is elicited that plaintiff had at one time been married, and subsequently she testified she had been divorced, and defendant moves to strike out such testimony, without stating a ground therefor, the court commits no error in refusing to strike it out.</p> <p>5. Where a general objection is made to the admission of evidence or a general motion to strike out, no reason being assigned, if the proof offered is at all admissible, it will be received.</p>

<p>Evidence — Witness—Interest—Moral interest — Charge of court.</p> <p>1. In an action -where the issue is as to the terms of a contract, and the plaintiff, his wife, and daughter swear to one version, and the four defendants to another, it is not reversible error for the court to say in the charge that the parties so far as the witnesses were concerned were pretty evenly balanced “three on the part of the plaintiff, all interested to a certain extent; legally, the plaintiff; morally, his wife and daughter.”</p> <p>2. The use of the word “morally,” did not improperly characterize the likely bias or favor of the wife and daughter in plaintiff’s behalf, and the difference between their interest and that of the defendants.</p> <p>Evidence — Burden of proof — Shifting of burden.</p> <p>8. The burden is on the party who asserts a fact to prove it.</p> <p>4. Where plaintiff gives competent proof of a fact and defendant, instead of negativing it directly, proposes to show another and distinct proposition which avoids the effect of it, the burden of proof shifts, and rests on defendant.</p> <p>Practice, C. P. — Charge—Reference to charge to jury in another case — Exception—Failure to object at trial — Waiver.</p> <p>5. Where a trial judge in his charge says, “the burden of proof, as I told you yesterday, rests upon the party who asserts a thing,” defendant cannot object on appeal to such an instruction on the ground that the reference was to an address to a jury in another case, where the counsel did not call the attention of the judge to his words at the time, and require him to amplify his remarks.</p> <p>6. Where a party desires explicit directions as to the burden of proof, in the light of his own theory of the case, he should present a point to the court, embracing his view.</p>

<p>Criminal law — Murder—Evidence—Declarations of a child five years old — Silence of defendant — Res gestae.</p> <p>1. The incompeteney of a child less than five years old to testify in a murder trial, does not preclude evidence as to her declarations made after the homicide, where they were heard by defendant and not denied by him, and this is the case although the declarations were not a part of the res gestee.</p> <p>Criminal law — Murder—Evidence as to previous offense — Act of March 15, 1911, P. L. 20.</p> <p>2. Where defendant in a murder trial produces evidence that he was a peaceable and law abiding citizen, and in his own evidence denies the commission of any previous offense of like character, the Commonwealth may show that he had previously been convicted of assault and battery.</p> <p>Criminal law — Murder—Evidence—Killing by assault with fists and feet — Charge—Reference to use of deadly weapon.</p> <p>3. On a murder trial where the evidence shows that defendant killed his wife by assault with fists and feet, a reference in the charge as to the effect of the use of a deadly weapon, is not ground for reversal, where it appears such reference had no application, and that it benefited rather than harmed defendant.</p> <p>Criminal law — Murder—Motive—Evidence.</p> <p>4. The proof of any motive for the taking of a life of another is not requisite to convict, where the actual intentional killing appears beyond any reasonable doubt.</p> <p>Appeals — Assignment of error — Criminal law — Murder — Sentence.</p> <p>5. On an appeal in a murder case, the sentence, which constitutes the final judgment of the court, is. an essential assignment of error.</p>

<p>Appeal, No. 13, Oct. T., 1922, by Eugenie K. R. Baum, from decree of O. C. Allegheny Co., March T., 1916, No. 283, dismissing exceptions to adjudication, in estate of Richard R. Baum, a minor.</p> <p>Exceptions to adjudication. Before Trimble, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Exceptions dismissed. Eugenie K. R. Baum appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

Appeal, No. 389, Jan. T., 1922, by plaintiff, from decree of C. P. Luzerne Co., Dec. T., 1921, No. 5, dissolving preliminary injunction, in case of Eugenia G. Ayars v. Wyoming Valley Homeopathic Hospital and John Curtis & Co. Bill in equity for injunction. Motion to dissolve preliminary injunction. The opinion of the Supreme Court states the facts. Preliminary injunction dissolved in opinion by Woodward, J.; Garman, J., dissenting. Plaintiff appealed.

<p>Decedents’ estates — Gift—Gift inter vivos — Delivery—Presumption — Evidence—Witness—Party dead — Act of May £8, 1887, P. L. 158.</p> <p>1. To constitute a valid gift inter vivos there must be a purpose to give, and the gift must be executed by actual delivery to the donee or to some one for his use.</p> <p>2. Where a decedent shortly before his death draws a check in favor of his brother for the exact amount of his deposit in a savings bank and declares to the person who witnessed the cheek that he wanted his brother to have the money, and directs that the check and bank book shall be put in an envelope addressed to his brother at the latter’s post office, and placed in his (decedent’s) satchel, and the brother presents the check for payment the day after decedent’s death, the check will be considered a gift inter vivos, if the evidence shows that there was no possibility that the brother obtained the cheek after the decedent’s death.</p> <p>3. Where the relation of the parties is such as here appears, mere possession of personal property shown to have formerly belonged to another is not of itself sufficient to raise a presumption that title was transferred.</p> <p>4. In such case, where the money is paid to decedent’s executor, the brother may assert a claim for the amount at the audit of the executor’s account.</p> <p>5. Not decided whether the brother was a competent witness under the Act of May 23, 1887, P. L. 158, to testify that he visited his brother before his death, and received from him the check in question.</p>