Volume 275 — Pennsylvania State Reports

<p>Taxation — Corporations—Debts — Interest — Return to State-Acts of June 17,1918, P. L. 507, and July 15,1919, P. L. 955.</p> <p>1. Under section 17 of the Act of June 17, 1913, P. L. 507, as amended by the Act of July 15, 1919, P. L. 955, a domestic corporation must make return to the State of its outstanding bonds, notes, certificates and evidences of indebtedness, which are held by residents of the Commonwealth, whether those obligations were issued by the corporation, or it assumed liability for them, or paid interest on them.</p> <p>2. Under such circumstances, the designated interest on such securities should not be paid in full to the owners thereof; the four mills tax should be deducted therefrom and only the balance paid to the owners.</p> <p>3. Since the passage of the amendatory Act of July 15, 1919, P. L. 955, the owners of such securities are not required, by section 1 of the Act of June 17, 1913, P. L. 507, to make return of them or pay to the county the four mills tax on them.</p> <p>4. Commonwealth v. DuPont Land Co., 254 Pa. 446; Com. v. Eoxford Knitting Co., 268 Pa. 266, and Com. v. Lehigh & New England E. R. Co., 268 Pa. 271, considered, and shown to be inapplicable to taxes accruing after the date of the Act of 1919.</p> <p>Practice — Case-stated—What facts may be considered.</p> <p>5. In determining what judgment should be entered on an agreed statement of facts, only such facts can be considered as the parties have expressly agreed to or as are necessarily to be implied from them; for the purposes of the case all others must be treated as if not existing.</p> <p>Statutes — Construction—Surplusage—Maxims.</p> <p>6. Whenever reasonably possible, all the words in a statute are to be given an appropriate meaning and none are to be treated as surplusage.</p> <p>7. The maxim “cessante ratione cessat et ipsa lex” applied.</p>

<p>Taxation — Corporations — Debt — Mortgage bonds — Return to State — Acts of June 17, 1918, P. L. 507, and July 15, 1919, P. D. 955.</p> <p>Under section 17 of the Act of June 17, 1913, P. L. 507, as amended by the Act of July 15,1919, P. L. 955, a domestic corporation must make return of and pay to the State, the four mills tax on its outstanding bonds, if they are held by residents of the Commonwealth, even though secured by mortgages on the .corporate property; the holders of such bonds are not required to make return of, and pay to the county, the tax on them.</p>

<p>Appeal, No. 21, May T., 1922, by defendant, from judgment' of C. P. Dauphin Co., No. 80, Commonwealth Docket, 1920, for Commonwealth on case tried by the court without a jury, in suit of Commonwealth v. Jacob Beed’s Sons, Inc.</p> <p>Appeal from tax settlement. Before Hargest, P. J., without a jury.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Judgment for Commonwealth, for $599.37. Defendant appealed.</p> <p>Error assigned, inter alia, was judgment, quoting it.</p>

<p>Appeal, No. 82, Jan. T., 1922, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1916, No. 2678, on verdict for plaintiff, in case of Robert E. Chitwood v. Philadelphia & Reading Railway Co.</p> <p>Trespass for personal injuries. Before Barratt, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $9,500. Defendant appealed.</p> <p>Errors assigned were (1, 2) portions of the charge quoted in the opinion of the Supreme Court, quoting them.</p>

<p>Negligence — Railroads—Passenger—Alighting at station — Moving locomotive — Contradiction of testimony — Number of witnesses.</p> <p>1. In accident cases, the trial judge should give careful instructions on the testimony, and in doing so should deal with the number of witnesses on each side, their respective interests, opportunities for observation, and such other matters as affect the weight of the evidence.</p> <p>2. The status of a passenger alighting on a platform at a station continues as such until he has left the platform, or had a reasonable opportunity to do so; ánd as such he is not required to. exercise, with reference to the tracks, as high a degree of care as a pedestrian at a grade crossing.</p> <p>3. Where a passenger alighting from a train and walking along a platform is struck by the overhang of a moving train, he cannot be charged with negligence as a matter of law where the evidence shows that the platform was congested by the traffic, and that he was jostled or crowded toward the track</p> <p>4. There is no rule requiring a railroad company to detain its passenger trains at a station the same length of time on every occasion, and the mere failure to do so is not evidence of negligence.</p> <p>Negligence — Damages—Present worth of future damages — Interest.</p> <p>5. A jury must compute damages according to law, not merely to their own satisfaction.</p> <p>6. When passing upon the question of future damages, the jury can allow, as the present worth, such sum only as put at simple interest will, with the accumulations of interest, amount to such damages at the time or times in the future when the jury find from the evidence they will be sustained.</p> <p>7. In such case the interest must be computed at the legal rate of six per cent.</p> <p>Negligence — Parties—Mother of minor — Widow married again— Act of May 5, 1911, P. L. 177.</p> <p>8. In an action by a minor for personal injuries, the widowed mother who has remarried may be joined as a party plaintiff in her own right under the Act of May 5, 1911, P. L. 177, and this is the case whether she has or has not contributed to the minor’s support.</p> <p>9. A widowed mother is, equally with a deserted mother, entitled to recover under the Act of 1911.</p>

<p>Appeal, No. 402, Jan. T., 1922, by Lillian S. Miller, Executrix of Theodosia Miller, deceased, from decree of O. C. Lancaster Co., April T., 1902, No. 75, dismissing exceptions to adjudication, in estate of Samuel Miller, deceased.</p> <p>Exceptions to adjudication. Before Smith, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Exceptions dismissed. Lillian S. Miller, executrix of Theodosia Miller, deceased, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it1.</p>

Appeal, No. 285, Jan. T., 1922, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T. 1917, No. 2857, on verdict for plaintiff, in case of Frank P. Miller Paper Co. v. Keystone Coal & Coke Co. Motion to quash appeal. Issue to determine validity of service of writ of summons on defendant. Before Stern, J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff. Defendant appealed.

<p>Appeal, No. 313, Jan. T., 1922, by defendant, from judgment of C. P. Northumberland Co., Sept. T. 1920, No. 449, on verdict for plaintiff, in case of George Chamberlain and Ida Chamberlain, his wife, v. John Barton Payne, Director Gen. of Railroads, operating the Philadelphia & Reading Railway Co.</p> <p>Trespass for death of plaintiff’s son. Before Moser, J.</p> <p>The opinion of the Supreme Court' states the facts.</p> <p>Verdict and judgment for plaintiffs for $5,000. Defendant appealed.</p> <p>Error assigned, inter alia, was refusal of judgment for defendant n. o. v., quoting record.</p>

<p>Appeal, No. 333, Jan. T., 1922, by defendant, from judgment of C. P. Northumberland Co., Dec. T., 1919, No. 296, on yerdict for plaintiff, in ease of Daisy Schankweiler y. Pennsylvania Lighting Company.</p> <p>Trespass for death of plaintiff’s husband. Before Moser, J.</p> <p>The opinion of the Supreme Court1 states the facts.</p> <p>Verdict and judgment for plaintiff for $17,250. Defendant appealed.</p> <p>Error assigned, inter alia, was refusal to withdraw a juror, quoting the record.</p>

<p>Appeal, No. 45, Oct. T., 1922, by defendant, from judgment of C. P. Butler Co., Sept. T., 1920, No. 48, on verdict for plaintiff, in case of E. H. Pyle v. M. B. Finnessy.</p> <p>Ejectment for land in Muddy Creek Township. Before Reiber, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned, inter alia, were various rulings and instructions, appearing by the opinion of the Supreme Court, quoting the record.</p>

<p>Appeals, Nos. 403 and 404, Jan. T., 1922, by defendants, from judgment of O. & T. Erie Go., May T., 1921, No. 39, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Edward Williams and Fred Maxwell.</p> <p>Indictment for mnrder. Before Hirt, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict of guilty of murder of the first degree on which sentence was passed. Defendants appealed.</p> <p>Error assigned, inter alia, was (6) instructions, appearing by the opinion of the Supreme Court, quoting them.</p>

<p>Criminal law — Murder—Interference with witnesses — New trial —Appeal.</p> <p>1. On an appeal in a murder case, the appellate court cannot consider a complaint as to the Commonwealth’s interference with defendant’s witnesses where such question was passed upon by the court below on a motion for a new trial, and there is nothing in the record which would enable the appellate court to review the merits of such collateral proceeding.</p> <p>Criminal law — Murder—Evidence—Intoxication—Self-defense.</p> <p>2. Where defendant in a murder case relies solely upon self-defense, he cannot complain that the trial judge failed to instruct the jury as to the effect of intoxication on his mind.</p> <p>Criminal law — Murder—Evidence—Friendly relation between prisoner and deceased — Cross-examination—Discretion—Abuse.</p> <p>3. It is not reversible error for the court to refuse to admit on cross-examination evidence of a friendly relation between the prisoner and deceased, where the materiality of the evidence does not appear, and no abuse of discretion is shown.</p> <p>4. If such evidence was deemed material, it might have been offered as part of defendant’s case.</p> <p>Criminal law — Murder—Bloodstains—Res gestee — Evidence.</p> <p>5. It is proper in a murder ease to permit the mother of the deceased to testify that marks on her apron, which she produced, were bloodstains, where it appears that such evidence tended to corroborate the testimony of the witness, and was part of the res gestas.</p> <p>Criminal law — Murder—Evidence—Stenographer’s notes.</p> <p>6. On a murder trial it is proper to permit a stenographer to refresh her memory from the transcribed copy of her notes of statements made by a witness in an interview in the county jail, where it appears that she personally transcribed the notes, and that no attempt was made to offer them in evidence.</p> <p>Criminal law — Murder—Witnesses without knowledge of English — Cross-examination—Evidence.</p> <p>1. On a murder trial where it is claimed that witnesses for the Oommonwealth have so little knowledge of English as not to be able fully to understand the questions put to them, it is for defendant to show this on cross-examination, and the weight to be given to such testimony under the circumstances is for the jury.</p> <p>8. Declarations made to police officers prior to the trial by defendant’s witnesses when they were in custody on a charge of conspiracy, are admissible to contradict their testimony at the trial, where it appears that the declarations were not offered as in the nature of a confession, and further that the witnesses were informed that any statement, made by them, would be used against them.</p> <p>Criminal law — Murder—Reasonable doubt — Charge.</p> <p>9. On a murder trial there is no error in charging that it is the duty of the jury to give defendant the benefit of any reasonable doubt arising out of the evidence which would prevent them from coming to a satisfactory conclusion, but that this doubt must fairly arise out of the evidence and must not be fancied or conjured up in their minds to escape an unpleasant duty; that it must be an honest doubt such as fairly strikes a conscientious mind and clouds the judgment; that if the mind be fairly satisfied of the fact on the evidence as much so as would induce a man of reasonable firmness and judgment to take the fact as true, and act upon it in a matter of importance to himself, it would be sufficient to rest a verdict on.</p>

<p>Appeal, No. 307, Jan. T., 1922, by trustees of the A. Herr Smith Memorial Library, from decree of O. C. Lancaster Co., May T., 1920, No. 90, dismissing exceptions to adjudication, in estate of James Shand, deceased.</p> <p>Exceptions to adjudication. Before Smith, P. J.</p> <p>Exceptions dismissed. Trustees of A. Herr Smith Memorial Library appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Appeal, No. 138, Jan. T., 1922, by plaintiff, from judgment of C. P. Lycoming Co., Sept. T., 1920, No. 290, on verdict for defendant, in case of Charles L. Welker v. New York Central Railroad and Stephen R. Campbell.</p> <p>Trespass for malicious prosecution. Before Quigley, P. J., specially presiding.</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 rulings and instruction, sufficiently appearing by the opinion of the Supreme Court, quoting record.</p>

Appeal, No. 267, Jan. T., 1922, by plaintiff, from judgment1 of C. P. Warren Co., March T., 1921, No. 13, for defendant, on demurring affidavit of defense, in case of Alfred E. Edgcomb v. L. S. Clough. Assumpsit for breach of contract. Before Lindsey, P. J. The opinion of the Supreme Court states the facts. Judgment for defendant on demurring affidavit of defense. Plaintiff appealed. Error assigned, inter alia, was judgment, quoting it.

<p>Appeal, No. 3, May T., 1922, by defendant, from judgment of C. P. Dauphin Co., March T., 1918, No. 18, on verdict for plaintiff, in case of Commercial Car Company, E. J. Cavander, for use of Mercantile Trust Co. v. W. H. Murpby & Sons.</p> <p>Replevin for motor truck. Before Hargest, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff by direction and judgment thereon. Defendant appealed.</p> <p>Errors assigned were ruling and instructions, appearing by the opinion of the Supreme Court, quoting record.</p>

<p>Promissory notes — Negotiable instruments — Consideration—< Value — Antecedent debt — Extension of time — Accommodation endorser — Act of May 16, 1901, P. L. 19k — Affidavit of defense— Banlcruptcy — Preference—Fraud.</p> <p>1. Under the Negotiable Instruments Act of May 16, 1901, an antecedent or a preexisting debt constitutes value, whether the instrument is payable on demand or at a future time.</p> <p>2. Under the act, an accommodation endorser is liable to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.</p> <p>3. In an action by the payee of a promissory note against an endorser, the defendant is liable where there is no fraud, and it appeárs that defendant endorsed the note at the request of and for the accommodation of the maker, that the note was given in lieu of a cash payment of a preexisting debt, that the entire transaction was known to both plaintiff and defendant, and that it was in fact carried out at defendant’s suggestion as an alternative to the immediate payment of the debt.</p> <p>4. In such case, it is immaterial that the maker of the note was at the time insolvent, and that this was known to plaintiff.</p> <p>5. The question of distribution of assets among the various creditors in bankruptcy proceedings has no bearing on the issue raised in such case.</p> <p>6. A man may prefer one creditor to another if he sees fit to do so, and the mere fact of such preference will not invalidate the transaction, in the absence of an allegation and proof of fraud.</p>

Appeals, Nos. 70 and 71, Oct. T., 1922, by defendant, from judgments of O. P. Beaver Co., Sept. T., 1920, Nos. 135 and 136, on verdicts for plaintiffs, in cases of John Sebring v. Bell Telephone Co. and William Flesber et ux. v. Bell Telephone Co. Trespass for death of minor children. Before Baldwin, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for John Sebring for $7,000 and for William Flesber et ux., $6,080. Defendant appealed.

<p>Appeal, No. 82, Oct. T., 1922, by defendant, from judgment of O. & T. Allegheny Co., Feb. T., 1921, No. 176, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Joseph Thomas.</p> <p>Indictment for murder. Before Stone, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict of guilty of murder of the first degree on which sentence was passed.</p> <p>Errors assigned, inter alia, were ruling and instructions, appearing by the opinion of the Supreme Court, quoting them.</p>

<p>Decedents’ estates — Sale of real estate — Payment of debts — Divesting lien of mortgage — Orphans’ court sale — Mortgage—Personal property — Acts of May 19,1898, P. L. 110, and June 7,1,917, P. L. W.</p> <p>1. The personal estate is the primary fund for payment of the debts of a decedent, and of those secured by bond and mortgage as well as others.</p> <p>2. The fact that a debt secured by a bond and mortgage is not due, does not preclude it from sharing either in the distribution of the personal estate or of the proceeds of the real estate, when so sold as to divest the mortgage lien.</p> <p>3. The fact that a mortgage lien will be discharged by a sale, necessarily implies the right to include the debt secured thereby as one for the payment of which the sale is ordered.</p> <p>4. Where the personal property of a decedent is insufficient to pay debts, including a mortgage debt, and the mortgagee, under the Acts of May 19, 1893, P. L. 110, and June 7, 1917, P. L. 447, files a stipulation that the sale shall be made divested of the lien of the mortgage, the orphans’ court will direct a sale of the decedent’s real estate for payment of debts.</p>

<p>Appeal, No. 341, Jan. T., 1922, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1921, No. 2719, sustaining decision of Workmen’s Compensation Board, in case of Antonio Lente v. Frank Luci.</p> <p>Appeal from decision of Workmen’s Compensation Board, sustaining referee’s findings. Before Batter-son, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Decision affirmed. Plaintiff appealed.</p> <p>Error assigned, inter alia, was order, quoting it.</p>

<p>Malicious prosecution — Malice—Probable cause — Reasonable belief — Mistake—Province of court and fury — Failure to deny charge before arrest.</p> <p>1. Prosecutions for crime are presumed to have been properly instituted, and, to sustain an action for malicious prosecution, malice and want of probable cause must be proved by plaintiff.</p> <p>2. Probable cause is a reasonable belief in known or reported circumstances, sufficiently inculpatory, and adequate to justify a prudent man in acting as prosecutor of a crime against the accused. It does not depend on guilt or the actual existence of the reported facts, but is based on an honest and reasonable belief in their existence.</p> <p>3. Representation of others may be sufficient foundation for it, especially if made by those who have had opportunities for knowledge. He who has reasonable ground for belief of guilt stands acquitted of liability, although he subsequently learns his mistake.</p> <p>4. It is exclusively for the jury to pass on the testimony, but the court must say, as a matter of law, whether the facts proven show probable cause.</p> <p>5. Generally it is a mixed question of law and fact, and, where the facts are in dispute, they must be submitted to the jury, who should be instructed as to what facts constitute probable cause.</p> <p>6. If all the admitted facts, and the reasonable inferences therefrom, amount to probable cause, the court should so declare it, and direct a verdict for defendant.</p> <p>1. Where a person is charged with a crime and makes no denial before arrest, and does not assert that the charge is a mistake, such conduct on his part is, in a subsequent action for malicious prosecution, material evidence as-to the honesty of belief and good faith of defendant in instituting the prosecution, where the prosecutor has knowledge of this fact before beginning the suit.</p>

Appeal, No. 393, Jan. T., 1922, by defendant, from judgment of O. & T. Schuylkill Co., Sept. T., 1921, No. 1921, on verdict of guilty of murder of the first degree, in case of Com. v. Stiney Daynarowicz. Indictment for murder. Before Berger, J. The opinion of the Supreme Court states the facts. Verdict of guilty of murder of the first degree upon which sentence was passed. Defendant appealed.

<p>Negligence — Street railways — Pedestrian crossing behind automobile bus between intersections — Contributory negligence — Case for jury.</p> <p>1. Under the peculiar circumstances of this case, it was held that a pedestrian struck by a street railway car at night after having passed behind an automobile bus between intersecting streets, was entitled to have his case go to the jury: Gavin v. P. R. T. Co., 271 Pa. 73, distinguished.</p> <p>2. Drivers of automobiles, street cars and other vehicles are not required to exercise a higher degree of care in passing auto or jitney busses loading or unloading passengers between regular crossings on the thoroughfares, than in passing pedestrians. The same degree of care is required of them as that taken against mishaps or pedestrians intending to cross a highway between or at crossings.</p>

<p>Negligence — Automobiles—Partners as defendants — Use of car in partnership business — Declarations—Evidence—O ase in chief— Rebuttal.</p> <p>1. In order to fix liability for an accident resulting from an automobile collision, it is necessary for plaintiff to show, not only that tbe car belonged to defendant, but that it was engaged in and about Ms business at the time the injury occurred.</p> <p>2. A partnership is liable for an injury caused by negligence of a partner in operating an automobile owned by the firm, where it appears that he was acting in the ordinary course of the firm’s business.</p> <p>3. That he was so acting, may be shown by his declarations made shortly after the accident.</p> <p>4. The fact that the car was used in plaintiff’s business may be shown either in plaintiff’s case in chief, or in rebuttal after defendant produced proof that the car was used individually by one of the partners on his own affairs. In either way the case is for the jury.</p>

Appeal, No. 405, Jan. T., 1922, by plaintiff, from judgment of C. P. York Co., Aug. T., 1921, No. 38, on verdict for defendant, in case of Alvin R. Nissly, Trustee of Pius W. Rudisill, bankrupt, v. Martin Wildasin. Assumpsit by trustee in bankruptcy to recover amount of a preference. Before Ross, J. The opinion of the Supreme Court states the facts. Verdict1 and judgment for defendant. Plaintiff appealed.

<p>Wills — Devise—Restriction on alienation — Particular religion— Conditions — Limitations—Freedom of conscience — Constitutional law.</p> <p>1. The policy of the law is to keep the alienation of land free from embarrassing impediments, and it endeavors to strip devises and grants of restrictive conditions.</p> <p>2. If the language of the condition is not clear, or is hostile to a state policy in any form, it is not given effect.</p> <p>3. Conditions subsequent are always strictly construed when the happening of the event closes on otherwise absolute fee estates.</p> <p>4. Where there is no limitation over or reverter mentioned, leaving succession to doubtful claimants, the grant or devise is absolute; and this is especially true where the land is devised to, and held by, lineal descendants, whose right under the will, will be defeated by a contrary construction.</p> <p>5. The law invokes the aid of laches against an attempted enforcement of forfeiture for condition broken, and permits none but heirs of the donor or original grantor to exercise a right of entry.</p> <p>6. It is the law of Pennsylvania through the Constitution of the United States and the Bill of Rights, section III of the Constitution of the State, that no human authority can in any case whatever control or interfere with the rights of conscience.</p> <p>7. A provision in a will devising a life estate in land to testator’s son and after his death to his son’s children provided they remained faithful to a particular religion, violates the settled policy of the State against restrictions on rights of conscience, and is void.</p> <p>8. In such case where it appears that testator further directs that if any of the son’s children forsook the religion named, the remaining children who remained true to it should take and it appears that all of the children sometime after their father’s death, and twenty years after the testator’s death abandoned the religion, the devise is not forfeited because (1) the condition, if a condition precedent, was performed; (2) if a condition subsequent, it was invalid to create a forfeiture; (3) laches barred enforcement of forfeiture; and (4) the provision violated the policy of the State.</p>

<p>Taxation — Transfer inheritance tax — Nature of tax — Deduction of federal inheritance tax — Act of June 20, 1919, P. L. 521 — Uniformity.</p> <p>1. The inheritance transfer tax of June 20,1919, P. L. 521, does not impose a tax on property, but requires payment from the estate of a decedent for the right of succession or the privilege of receiving at death the property possessed by decedent.</p> <p>2. In computing a transfer inheritance tax under the Act of June 20, 1919, on the estate of a Pennsylvania decedent, the sum paid to the federal government as an estate tax cannot be deducted, inasmuch as the legislature intended this tax should be based on the clear value of the estate before deducting the federal tax.</p> <p>3. The requirement that the federal tax shall not be deducted from the value of the estate in determining the state tax, does not involve lack of uniformity, for all estates are classed exactly alike.</p> <p>4. The Act of June 20,1919, is not to be declared unworkable, because there is no provision as to how the charge may be worked out among the several legatees, distributees and residuary claimants.</p> <p>5. The right of the state to create a right to inherit, and the right to demand an excise for such right of inheritance, cannot be legislated out of existence or interfered with simply because the federal government sees fit to levy a graduated tax on the same subject of taxation — a state-created right.</p> <p>6. The subject of the tax imposed by the Act of June 20, 1919, is not a matter of concurrent legislation, and may be taken away by the State, leaving the federal government without this subject to tax.</p> <p>Mr. Justice Frazer dissented.</p>

<p>Negligence — Parties—Amendment of names — Statute of limitations — Federal rule.</p> <p>1. Ordinarily under the Pennsylvania cases, a change in the party plaintiff from an individual to a representative capacity is a change in the cause of action, and will not be allowed after the statute of limitations has become a bar; but this is not the law in the federal courts.</p> <p>2. Where a wife issues a writ in her own name in trespass for the death of her husband, and three years thereafter files a statement showing a cause of action under the Federal Employers’ Act of April 22, 1908, and on the same day by motion amends the record so as to sue as administratrix of her husband, and defendant pleads three years thereafter without objection or exception to the amendment, defendant at the trial cannot plead the statute of limitations as a bar to the admission of plaintiff’s testimony.</p> <p>Appeals — Amendment—Objection—Exception—Statute of limitations — Record—Request to transcribe testimony, charge, etc.</p> <p>3. Where there is complaint to an amendment of pleadings, the record must show an objection to its allowance, or an exception to the order permitting it, otherwise the complaint will not be considered on appeal.</p> <p>4. Assignments of error to rulings on evidence which raise the question of the statute of limitations, will not be considered, where there has been no request to transcribe the testimony and file of record the charge and points and answers.</p> <p>Negligence — Railroads—Master and servant — Engineer — Projecting rode in cut — Rislc of employment — 0ontributory negligence —Case for jury.</p> <p>5. An engineer who is killed, while leaning out of the cab window in the course of his duty, by his head coming in contact with a projecting rock in a cut, cannot be charged, as a matter of law, with assuming the risk of such an accident.</p> <p>6. It was negligence for the defendant to have its roadbed thus constructed.</p> <p>7. It is only in a clear case that the question of assumption of risk is one of law for the court.</p>

<p>Appeals, Nos. 61 and 62, Jan. T., 1922, by defendant, from judgment of C. P. Luzerne Co., March T., 1918, No. 328, on verdict for plaintiff, Ethel Shaw, in case of Ethel Shaw, by her father and next friend, Martin Shaw, and Martin Shaw, in his own right, v. Plains Township.</p> <p>Trespass for personal injuries. Before Garman, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff, Ethel Shaw, for $2,250, and for Martin Shaw, $969. Defendant appealed.</p> <p>Error assigned, inter alia, was refusal of motion for judgment for defendant n. o. v., quoting record.</p>

<p>Appeal, No. 87, Oct. T., 1922, by defendants, from decree of O. P. Forest Go., Sept. T., 1920, No. 1, on bill in equity, in case of Morris W. Tucker v. Samuel O. Fertig et' al., .copartners doing business under the firm name of National Oil Co.</p> <p>Bill in equity for injunction and accounting. Before Lindsey, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decree for plaintiff. Defendant appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Appeal, No. 114, Oct. T., 1922, by defendant, from judgment of O. P. Butler Co., June T., 1922, No. 106, on verdict for plaintiff, in case of I. N. Pollock v. Pittsburgh, Bessemer & Lake Erie Railroad Oo.</p> <p>Trespass for personal injuries. Before Reiber, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $3,347.25. Defendant appealed.</p> <p>Error assigned, inter alia, was refusal of judgment n. o. v. for defendant, quoting record.</p>