Volume 278 — Pennsylvania State Reports

<p>Appeal, No. 82, Oct. T., 1923, by defendant, Angelo Fragassa, from judgment of O. & T., Washington Co., Aug. T., 1922, No. 185, and Nov. T., 1922, No. 2, on verdict of guilty of murder of the first degree, in case of Com. v. Angelo Fragassa et al.</p> <p>Indictment for murder. Before Cummins, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict of guilty upon which sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, instructions and refusal of new trial, quoting record.</p>

Appeal, No. 81, Oct. T., 1923, by Marcantonio Daniele, from judgment of O. & T., Washington Co., Aug. T., 1922, No. 185, and Nov. T., 1922, No. 2, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Angelo Fragassa, Marcantonio Daniele et al. Indictment for mnrder. Before Cummins, J. The opinion of the Supreme Court states the facts. Verdict of guilty of murder of the first degree. Defendant appealed.

<p>Decedents’ estates — Claims for services — Family relationship— Daughter-in-law — Fvidence — Presumption—Contract—Presumption of payments — Periodic payments.</p> <p>1. The mere fact that a claimant against a decedent’s estate is a daughter-in-law of the decedent raises no presumption of gratuitous services; but if the claimant has become a part of the family, the contrary is true.</p> <p>2. A claim of a daughter-in-law, a member of the family, against her deceased mother-in-law’s estate, for domestic services and nursing rendered during a period of fifteen years will not be sustained where there is no evidence of an express contract, and the only testimony was of indefinite declarations of decedent to the effect that claimant was to be well paid by her executors, and should no longer be required to go out to work.</p> <p>3. In such ease a presumption also arises that the compensation, even if any was contemplated, had been paid at stated periods.</p> <p>4. Where no evidence is offered to overcome such presumption, the question is primarily for the court.</p> <p>Appeals — Refusal of judgment n. o. v. — Basic and fundamental errors.</p> <p>5. Where binding instructions were asked at the trial, and a motion for judgment n. o. v. was overruled, the appellate court must consider all basic and fundamental errors, even though no formal objection was made.</p>

<p>Appeals, Nos. 31 and 32, Jan. T., 1924, by the Rapid Transit Co., defendant, from judgments of C. P. No. 3, Pbila. Co., Sept. T., 1921, No. 1450, on verdicts for plaintiffs, in case of William Harkin, by Ms father and next friend, Matthew A. Harkin, and Matthew A. Harkin in his own right, v. Edward J. Toy and the Philadelphia Rapid Transit Co.</p> <p>Trespass for personal injuries. Before McMichael, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff, Wm. Harkin, for $9,000 on which judgment was entered. Verdict for plaintiff, Matthew A. Harkin, for $2,000 on which judgment was entered for $1,000, all aboye that amount having been remitted. The Rapid Transit Co., defendant, appealed.</p> <p>Error assigned, inter alia, was in overruling motion for judgment for defendant n. o. v.</p>

<p>Appeal, No. 322, Jan. T., 1923, by defendants, from decree of C. P. Bedford Co,, April T., 1922, No. 1, for specific performance, in case of Charles W. Allen and John S. Brice v. Yirgie M. Mowry et al.</p> <p>Bill for specific performance. Before Bailey, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decree for plaintiffs. Defendants appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

<p>Practice, G. P. — Assumpsit—Tort—Set-off—Waiver of tort— Act of May lk, 1915, section lk, P. L. k88 — Fraud—Misrepresentation — Accord and satisfaction — Rescission — Restoration—Subrogation.</p> <p>1. "Where money has been obtained by fraud, the injured party may waive the tort and recover the same in assumpsit for money had and received; and, under the Act of May 14, 1915, P. L. 483, such claim can be interposed as a set-off in an action of assumpsit.</p> <p>2. Where an accord and satisfaction is fully executed, the general rule is that there can be no rescission on the ground of fraud without restoring or offering to restore what has been accepted in satisfaction.</p> <p>3. Where contracting parties stand on common ground, and have equal means of knowledge, an exaggerated statement by one, in a matter of opinion, will not entitle the other to relief; and this is especially true in the adjustment of a loss.</p> <p>4. Where an insurance company compromises and pays a loss on an automobile, and subsequently issues a second policy on the same car, and, after the right of action has expired on the first policy, the company is sued for a loss under the second policy, it cannot set up as a defense fraudulent misrepresentations alleged to have been made by the plaintiff in connection with the adjustment under the first policy, where it appears that defendant did not disapprove the adjustment promptly, although it had full opportunity to ascertain the damages, and that it subrogated itself to plaintiff’s rights against the party causing the injury, and also retained the canceled policy.</p>

<p>Appeals, No. 181 and 280, by plaintiffs and defendant, from order of C. P. Northumberland Co., Sept. T., 1921, No. 306, discharging rule to open judgment and from order striking off ejectment, in case of Esther Shapiro and Annie Shapiro v. Edward C. Malarkey.</p> <p>Rules to open judgment, and to strike off ejectment. Before Strouss, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Rule to open judgment for rent discharged.</p> <p>Rule to strike off judgment in ejectment made absolute.</p> <p>Plaintiffs and defendant appealed.</p> <p>Errors assigned, inter alia, were orders, quoting rec-. ord.</p>

<p>Worhmeris compensation — Course of employment — Nature of employment — Violation of Act of June 2, 1891, P. L. 176 — Mines and mining — Coal mine — Explosion of gas — Public policy — Illegal act.</p> <p>1. There can be no legal excuse for failure to comply with an absolute statutory requirement.</p> <p>2. Public policy will not aid a man who grounds his cause on an immoral or illegal act.</p> <p>3. Where services are rendered in a transaction which is itself an immediate and direct breach of the laws, an action for compensation cannot be maintained.</p> <p>4. Where a mine owner has complied with the provisions of the Act of June 2,1891, P. L. 176, by barring off a part of a coal mine that had generated gas, and a workman, with full notice of the situation, enters such part, lights a fuse, and is injured in the ensuing explosion, he cannot recover under the Workmen’s Compensation Act.</p> <p>5. Such a place was unworkable, and the workman in entering it was no longer engaged “in the course of his employment,” and his presence therein was not “required by the nature of his employment.”</p>

Appeal, No. 65, Oct. T., 1923, by Charles L. Maginn et al., next of kin, from decree of O. C. Allegheny Co., Noy. T., 1921, No. 417, dismissing exceptions to decree affirming probate of will, in estate of Daniel Maginn, deceased. Appeal from register of wills. Before Miller, P. J. The opinion of the Supreme Court states the facts. Appeal dismissed. Charles L. Maginn et al., next of kin, appealed. Error assigned was decree, quoting it;

<p>Appeal, No. 7, Jan. T., 1924, by defendants, from decree of C. P. Schuylkill Co., May T., 1922, No. 2, on bill in equity, in case of John Zernosky acting for himself and for the Congregation of St. Joseph’s Lithuanian Roman Catholic Church of Mahanoy City v. Adam Kluchinsky et al. claiming to be Trustees of St. Joseph’s Lithuanian Roman Catholic Church of Mahanoy City.</p> <p>Bill for injunction. Before Bechtel, P. 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>

Appeal, No. 324, Jan. T., 1923, by defendant, from judgment of C. P. Fayette Co., Sept. T., 1918, No. 382, on verdict for plaintiff, in case of Jules J. Quertinmont v. John B. Moore, Trustee under the designation of Fancy Hill Coal Works. Trespass to recover damages for mining coal. Before SWEAEINGEN, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $2,500.22. Defendant appealed.

Appeal, No. 1, Jan. T., 1923, by plaintiff, from order of C. P. Montgomery Co., June T., 1921, No. 1, refusing writ of peremptory mandamus, in case of Margery Barker, a minor, by her mother and next friend Marjory C. Barker, v. Trustees of Bryn Mawr College, a corporation, and M. Carey Thomas, President. Petition for peremptory mandamus. Before Miller, J. The opinion of the Supreme Court states the facts. Petition dismissed. Plaintiff appealed.

Appeal, No. 13, Jan. T., 1924, by plaintiff, from order of C. P. No. 4, Phila. Co., Sept. T., 1922, No. 5020, discharging rule for judgment for want of sufficient affidavit of defense, in case of James Johnson, to use of Leonard Averett et al. v. Harry Potamkin. Rule for judgment for want of sufficient affidavit of defense. Before Audenried, P. J. Rule discharged. Plaintiff appealed. Error assigned was order, quoting record.

<p>Appeal, No. 142, Jan. T., 1923, by plaintiff, from order of C. P. Lancaster Co., Aug. T., 1919, No. 202, making absolute rule to open judgment, in case of Lloyd J. Tressler v. M. L. Emerick.</p> <p>Buie to open judgment. Before Landis, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Buie absolute. Plaintiff appealed.</p> <p>Error assigned, inter alia, was order, quoting record.</p>

<p>Evidence — Suit against decedent’s estate — Loan — Promissory note — Endorsement—Consideration—Declarations of decedent.</p> <p>1. In an action against the estate of a decedent to recover an alleged loan, the mere fact that deceased endorsed a note made by plaintiff, the proceeds of which were paid to a third person, is not sufficient to sustain a recovery, where there is no proof that decedent received any benefit therefrom.</p> <p>2. In such case declarations of decedent not made to plaintiff, and not based upon any apparent consideration, are inadmissible in evidence.</p> <p>3. Bad advice as to an investment creates no legal liability, when such advice is honestly given.</p>

Appeal, No. 328, Jan. T., 1923, by defendant, from judgment of C. P. York Co., Aug. T., 1921, No. 99, on verdict for plaintiff, in case of Wenona B. Barton v. Daniel P. Saylor. Assumpsit for breach of promise of marriage. Before Ross, J. The opinion of the Supreme Court states the facts. Yerdict and judgment for plaintiff for $3,500. Defendant appealed. Errors assigned> among others, were- instructions, recited in opinion of Supreme Court, quoting them.

<p>Promissory notes— Endorsement — Collateral—Subrogation—Release of endorser — Surety—Damage.</p> <p>1. When a creditor has in his hands the means of paying a check, and does not use it, but surrenders, without reason, securities held, a surety will be discharged pro tanto; but if.no damage appears, he is not relieved.</p> <p>2. Where the payee of a promissory note receives from the maker insurance policies as collateral with the right, on default, to apply the cash surrender value of the insurance to the payment of the note, and subsequently the payee receives other notes from the maker with endorsements thereon, and by their terms any equities in the policies were applicable to their payment, the endorser on the subsequent notes cannot claim that he was wholly discharged from liability, because the holder received the cash value of the policies and reassigned them to the maker' of the notes.</p> <p>3. In such case, the endorser was only discharged pro tanto; and he has no ground for complaint, if it appears that he was given an opportunity to pay the indebtedness and take over the policies to which he had a right to be subrogated, and that he did not avail himself of this offer.</p>

<p>Wills — Prolate — Issue devisavit vel non — Grant of issue — Bequest of parties — Trial in common pleas — Final decree — Interlocutory decree — Appeals—Time for talcing appeals — Statutes—Codification of statutes — Acts of March 15,1832, P. L. 133,11$; March 29, 1832, P. L. 190, 208; May 19, 187It, P. L. 206; May 9, 1889, P. L. 158, 159; May 19, 1897, P. L. 67, 68, and June 7, 1917, P. L. ki5, m-</p> <p>1. The rule that when reading codifying legislation, the law as therein written will be deemed to be the same as prior to the revision, unless the statute itself, or its history, shows clear intention to make changes, does not control where, in a so-called codification such as the Wills Act of June 7, 1917, P. L. 415, 424, provisions from several prior statutes, enacted under a somewhat different scheme of tribunals and appeals, are brought together in one section of the revised act for the purpose of application to an altered system, and where the section in question is in pari materia, with other allied, and to a degree interdependent, legislation containing substantial changes from the preexisting law.</p> <p>2. From a consideration of the relevant authorities, the early legislation, and existing acts relating to the trial and disposal of issues of fact in probate of will cases, and appeals therefrom, the Supreme Court has formulated the following rules:</p> <p>Rule 1. The orphans’ court has power of its own volition to send any issue of fact to the common pleas.</p> <p>Rule 2. Where a substantial dispute exists on a material point of fact concerning the status of an alleged will or testamentary writing, and the evidence is of the probative value required by the •decisions, the orphans’ court must send such issue to the common pleas when requested so to do by any party in interest, if that request is made in due season.</p> <p>Rule 3. After judgment entered on the verdict in the common pleas, so long as the judgment stands undisturbed, the findings of fact by the jury of that tribunal are conclusive on the orphans’ court, (a) whenever the issue is of the class mentioned in Rule 2— whether sent to the common pleas on request or otherwise, — or (b) when it involves a decision of a fact upon which depends the jurisdiction of the orphans’ court.</p> <p>Rule 4 When the issue is in neither of the classes mentioned in Rule 3, and merely involves facts as to which the tribunal sending it desires advice, the result in the common pleas is not conclusive in any sense, but, when the judgment on the verdict is not appealed from, if followed by the orphans’ court, the Supreme Court may consider the findings of the jury as acquiesced in by appellant.</p> <p>Rule S. In cases falling within Rule 3, the date of the entry of the judgment in the common pleas marks the time from which the six-months period for taking an appeal runs, while, in cases within Rule 4, the date of the final decree in the orphans’ court marks the date from which the judgment on the issue in the common pleas becomes final for purposes of appeal.</p> <p>Rule 6. In the class of cases covered by Rule 4, where the verdict is not binding, the refusal of an issue will not be reviewed on appeal; but when the issue is granted, and the facts found thereon are adopted as the basis of a final decree by the orphans’ court, the party thus aggrieved may appeal from such decree and at the same time appeal from the judgment of the common pleas on the feigned issue.</p> <p>Rule 7. The refusal of an issue in cases covered by Rule 2, will. be reviewed on appeal when the record shows, by evidence of the probative value required by the decisions, that a substantial dispute on a material question of fact exists, but not otherwise.</p>

<p>Appeal, No. 89, Oct. T., 1923, by Annie M. Davis, life tenant, from decree of O. C. Allegheny Co., March T., 1919, No. 262, dismissing exceptions to adjudication, in estate of Thomas Marshall, deceased.</p> <p>Exceptions to adjudication. Before Miller, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Exceptions dismissed. Annie M. Davis, life tenant, appealed.</p> <p>Error assigned, inter alia, was decree, quoting it.</p>

Appeal, No. 53, Jan. T., 1923, by defendants, from judgment of C. P. Luzerne Co., March T., 1920, No. 55, for plaintiffs, on case tried by court without jury, in suit of Henry Mindlin et al., trading as Mindlin & Rosenman v. Chas. M. O’Boyle et al., trading as. the Pittston Coal Sales Co. Assumpsit for breach of contract. Before Puller, P. J. The opinion of the Supreme Court states the facts. Judgment for plaintiffs. Defendants appealed.

<p>Appeal, No. 5, Jan. T., 1923, by Laura B. Kenney et al., children of testator, from decree of O. C. Schuylkill Co., refusing issue devisavit vel non, in estate of William Buechley, Sr., deceased.</p> <p>Appeal from register of wills. Before Wilhelm, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Appeal dismissed. Laura B. Kenney and Fred Bryson Buechley, children of testator, appealed.</p> <p>Error assigned was decree, quoting it.</p>

<p>Principal and agent — Fraud of agent — Acceptance of benefits of fraud.</p> <p>1. While it is true that one accepting the benefits of fraud, is liable not only where he knew of and consented to the fraud at the time it was perpetrated, but also where he was personally innocent and had neither authorized nor known of the fraud at the time of its commission, yet one cannot be held so liable, where he was ignorant of the fraud at the time he accepted its benefits and merely retained what appeared to be legitimate proceeds of the transaction-involved.</p> <p>2. If an agent obtains possession of the property of another by making a stipulation or condition which he was not authorized to make, the principal must either return the property, or, if he receives it, it must be subject to the condition upon which it was parted with by the former owner.</p> <p>3. A principal cannot repudiate an act of his agent, so far as it is injurious to himself, and adopt it so far as it is beneficial. He must either allow it to stand or set it aside in toto.</p> <p>4. Where, in an equity suit, it appears that defendants agreed with plaintiff’s agent to buy stock of a corporation at a certain price and resell it to plaintiff at a profit, and the agent in fraud of his principal but without the knowledge of defendant arranges the transaction so as secretly to keep the profit for himself by charging plaintiff more than the cost of the stock, the plaintiff is entitled to recover the profit made by his agent, but he must pay the purchase price agreed upon to defendant, inasmuch as he did not offer to rescind the contract and return the stock.</p> <p>Equity — Findings of facts — Verdict of jury — Appeals.</p> <p>5. The findings of fact by a chancellor, which involve the credibility of witnesses and the weight to be given their testimony, will, on appeal, be given the effect of a verdict of a jury, and they will not be disturbed where there is testimony to support them.</p> <p>Appeals — Question raised in lower court, but not assigned as error.</p> <p>6. Where a question raised and decided in the lower court in an equity case is not assigned as error, it cannot be considered on appeal.</p>

Appeal, No. 10, May T., 1923, by plaintiff, from decree of C. P. Daupbin Co., Equity Docket, No. 666, on bill in equity, in case of E. W. Jacobs v. S. Bruce Mingle et al. Bill to cancel lease, to restrain collection of judgment, and for repayment of money paid for rent and goodwill. Before Wickersham, J. The opinion of the Supreme Court states the facts. Decree for plaintiff for satisfaction of judgment on payment of amount stated, but denying other relief.

<p>Appeal, No. 12, May T., 1923, by plaintiff, from decree of C. P. Dauphin Co., Equity Docket No. 486, dismissing bill in equity, in case of Alfred F. Hanna v. Lykens Water Company.</p> <p>Bill for injunction. Before Fox, 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. 17, May T., 1923, by defendant, from judgment of C. P. Dauphin Co., March T., 1919 No. 70, on verdict for plaintiff, in case of Jesse W. Hedrick v. City of Harrisburg. Issue to determine damages alleged to be due for vacation of street. Before Hargest, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $20,967. Defendant appealed. Error assigned, inter alia, was refusal of judgment for defendant n. o. v.

<p>Appeal, No. 3, May T., 1924, by defendant, from order of C. P. Dauphin Co., Commonwealth Docket, 1923, No. 44, awarding peremptory mandamus, in case of Commonwealth ex rel. George W. Woodruff, Attorney General, v. Clyde L. King, Secretary of the Commonwealth.</p> <p>Petition for peremptory mandamus. Before Hargest, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Mandamus awarded. Defendant appealed.</p> <p>Error assigned was order, quoting it.</p>

Appeal, No. 29, 1924, by defendant, from decree in equity C. P. Carbon Co., June T., 1912, No. 1, on bill in equity in case of Palmer Water Co. v. Lehighton Water Supply Co. Bill in equity for injunction. Before Garman, J., specially presiding.

Appeal, No. 15, Oct. T., 1923, by plaintiffs, from decree of C. P. Westmoreland Co., No. 1115, in equity dismissing bill in equity, in case of Hugh F. Farrell and Curt G. Wagner v. Elizabeth Bowker and James Bowker. Bill in equity for specific performance. Demurrer to bill. Before Whitten, J. The opinion of the Supreme Court states the facts. Bill dismissed. Plaintiffs appealed. Error assigned was, inter alia, decree, quoting record.

Appeal, No. 1, May T., 1923, by plaintiffs, from decree of C. P. Dauphin Co., No. 736, Equity Docket, dismissing bill in equity, in case of Samuel Heller et ux. v. Samuel Fishman, Edward I. Fishman and Sarah Rubin. Demurrer to bill in equity to quiet title. Before Wickersham, J., Hargest, P. J., and Fox, J., concurring. The opinion of the Supreme Court states the facts. Bill dismissed: 26 Dauphin Co. R. 46. Plaintiffs appealed.

<p>- Taxation — Anthracite coal — Assessment of tax — MarTcet value— Interstate commerce — Act of May 11, 1921, P. L. 479 — Constitution — Special law — Classification—Uniform taxation.</p> <p>1. The Anthracite Coal Tax Act of May 11, 1921, P. L. 479, is constitutional, and not forbidden classification or special law.</p> <p>2. Anthracite coal is a proper subject for classification under the Constitution, and such coal mined and ready for shipment is taxable so long as it remains in possession of the mine owner.</p> <p>3. Where the number of tons prepared for market each day is approximated as nearly as conditions permit, and this estimate checked up and corrected later, such action substantially complies with the requirements of sections 1 and 2 of the Act of May 11, 1921, P. L. 479, and constitutes an assessment as of the day the coal was mined.</p> <p>4. Such an assessment made at the mines although checked up later is not a tax on transportation, nor a tax on interstate commerce, although the final checking up is made while the coal is in transportation.</p> <p>5. It cannot be alleged that the tax so assessed violated the constitutional provisions requiring taxes to be uniform on the same class of subjects, because the daily price per ton of coal prepared for market was not uniform at the various mines.</p>

<p>Contract — Performance—•Counterclaim — Payments — Renewal notes — Case for jury — Evidence—Declarations of agent — Res gestee —Measure of damages.</p> <p>1. In an action to recover a balance alleged to be due on an ice plant sold and delivered, where defendant offers evidence tending to show that the plant was defective, that plaintiff had not been able to remedy its defects, and that it never conformed to the requirements of the contract, and sets up a counterclaim for breach of contract, the case, on conflicting evidence, is for the jury.</p> <p>2. In such case it is competent for defendant to show what possession plaintiff had of the plant, what work it did thereon, that the machine was generally out of repair, and that it failed to produce the guaranteed amount of ice.</p> <p>3. Declarations and statements by plaintiff’s agent in charge of the work of repairs made in connection with his work are admissible, in such case, as part of the res geste.</p> <p>4. If defendant has retained the plant on its premises, the measure of damages is the difference between the value of the machinery contracted for and as actually furnished.</p> <p>4. The rule that one who gives a renewal note with knowledge of the failure of consideration for the original note, waives such defense, does not apply where the original note was given in part payment for a machine which was defective, when the renewal note was given, and was being repaired by the payee of the note, without any certainty on the part of the maker of the note that the machine would not be brought up to the contract requirements.</p> <p>Appeals — Assignments of error — More than one hill of exceptions —Court Rule 22.</p> <p>6. Exceptions to admission of evidence of two witnesses cannot be joined in one assignment of error. It .violates Court Rule 22.</p>

Appeals, Nos. 4 and 5, May T., 1924, by plaintiffs, from judgments of Superior Court, Nos. 15 and 16, March T., 1923, affirming order of Public Service Commission in cases of White Haven Borough and F. O. Haiges v. White Haven Water Co. Appeals from judgments of Superior Court affirming order of Public Service Commission. See White Haven Boro. v. Public Service Commission, 80 Pa. Superior Ct. 536, for the facts. Order affirmed.

<p>Deed — Consideration—Privilege in other land — Construction of deed — Construction by parties.</p> <p>1. Where, as part consideration for the purchase of a piece of land, the grantor gives to the grantee a privilege on or under another tract, the privilege will determine when the purpose for which it was granted has ended.</p> <p>2. The fact that the words used to express a grant are not those commonly employed when a sale is intended, is a circumstance, although not conclusive, that only some less estate was intended to be conveyed.</p> <p>3. In doubtful cases the words of a grant will ordinarily be so construed as to resolve the.doubt in favor of the grantee.</p> <p>4. Where, however, the parties to a document, before any dispute has arisen between them, consistently interpret the language in one way, this operates to resolve the doubt and is controlling in the construction of the paper.</p> <p>Appeals — Judgment n. o. v. — Disputed facts — Evidence.</p> <p>5. On an appeal from a judgment non obstante veredicto, all disputed facts, depending solely on testimony, must be resolved in favor of appellant.</p>

<p>Appeal, No. 88, Jan. T., 1924, by defendant, from order of C. P. Luzerne Co., March T., 1923, No. 252, awarding peremptory mandamus, in case of Carrere and Hastings and Benjamin H. Davis v. Paul J. Schmidt, Controller of Luzerne County.</p> <p>Petition for mandamus. Before Fullee, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Demurrer to answer sustained and mandamus awarded, 22 Luzerne Leg. Reg. 305. Defendant, controller, appealed.</p> <p>Error assigned was order, quoting record.</p>

<p>Appeal, No. 57, Oct. T., 1923, by defendant, from judgment of O. P. Allegheny Co., July T., 1922, No. 2263, sustaining decision of Workmen’s Compensation Board, in case of Agnes Watkins v. Pittsburgh Coal Co.</p> <p>Appeal from decision of Workmen’s Compensation Board, which sustained award of compensation by referee. Before Ford, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decision sustained. Defendant appealed.</p> <p>Errors assigned were dismissal of exceptions to decision of Workmen’s Compensation Board, quoting record.</p>

<p>Workmen’s compensation — Agreement by minor — Employment forbidden by Child Labor Act — Setting aside agreement — Acts of May IS, 1915, P. L. 286, and June 2, 1915, P. L. 786.</p> <p>1. Although a minor if injured while engaged in employment forbidden by the Child Labor Act of May 13, 1915, P. L. 286, may not be compelled to accept compensation under the provisions of the Workmen’s Compensation Act of June 2,1915, P. L. 736, yet, if he accepts the statute, he is bound by his agreement until it is either modified or set aside by the Workmen’s Compensation Board.</p> <p>2. Where a boy between sixteen and eighteen years of age, enters into such an agreement, with full knowledge of the extent of his injury, in the presence of his father, and accepts and receives payments thereunder for eighteen weeks without complaint or objection, the agreement will not be set aside.</p>

<p>Trial — Binding instructions — Evidence—When facts and inferences from facts must be accepted as true — Practice, G. P.</p> <p>1. In determining whether or not binding instructions should have been given for one of the parties to a suit, all the facts and inferences therefrom, favorable to the other party, must be accepted as true, if depending on testimony only, and must be excluded from consideration if unfavorable.</p> <p>Negligence — Municipalities — Pedestrians — Place of danger in street — Presumption—Contributory negligence.</p> <p>2. While every person must exercise due care, when using the streets of a municipality, he is not bound to presume that other pedestrians will push him into a known place of danger.</p> <p>3. One who i» injured, through no fault of his own, while endeavoring to locate and avoid a known danger, cannot be held guilty of contributory negligence, as matter of law.</p>

Appeal, No. 36, Oct. T., 1923, by defendants, from judgment of O. P. Allegheny Co., Jan. T., 1919, No. 1715, on verdict for plaintiffs, in case of George Gojkovic et ux. v. C. A. Wageley et al., doing business as Wageley Brothers. Trespass for death of plaintiff’s minor daughter. Before Drew, J. The opinion of the Supreme Court states the facts. Judgment on verdict for plaintiffs for $1,790.03. Defendants appealed.

<p>Appeal, No. 49, Oct. T., 1923, by defendant, from judgment of O. P. Allegheny Co., Jan. T., 1922, No. 2794, on verdict for plaintiff, in case of James G. Nolder v. Pennsylvania Railroad Co.</p> <p>Trespass for personal injuries. Before Kline, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $8,750. Defendant appealed.</p> <p>Error assigned was, inter alia, refusal of judgment n. o. v. for defendant, quoting record.</p>

<p>Appeal, No. 23, Oct. T., 1923, by defendant, from judgment of O. P. Lawrence Co., Sept. T., 1919, No. 114, on verdict for plaintiff, in case of Mary Fortunato v. Shenango Limestone Co.</p> <p>Trespass for death of plaintiff’s son. Before Emery, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff, on which judgment was entered for $2,500. Defendant appealed.</p> <p>Error assigned was, inter alia, refusal of judgment n. o. v., quoting record.</p>

<p>Appeal, No. 72, Oct. T., 1923, by plaintiff, from decree of O. P. Allegheny Co., Oct. T., 1921, No. 2147, dismissing bill in equity, in case of Mary Jane Norris v. Pittsburgh, Bessemer & Lake Erie Railroad Co.</p> <p>Bill in equity for injunction. Before Kline, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Bill dismissed. Plaintiff appealed.</p> <p>Error assigned was, inter alia, decree, quoting records</p>

<p>Appeal, No. 156, Oct. T., 1923, by Pennsylvania Bituminous Mutual Association, insurance carrier, from judgment of C. P. Allegheny Co., July T., 1923, No. 890, affirming decision of Workmen’s Compensation Board, in case of Mildred Rydzeski v. Kiskiminetas Valley Coal Co., defendant, and Pennsylvania Bituminous Mutual Association, insurance carrier.</p>