Volume 279 — Pennsylvania State Reports

<p>Appeal, No. 127, Oct. T., 1923, by defendants, from judgment of C. P. Allegheny Co., Jan. T., 1923, No. 1596, on verdict for plaintiff, in case of Clark Wright v. John France et al.</p> <p>Petition for mandamus.</p> <p>Trial by jury on return denying facts. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Judgment on directed verdict for plaintiff. Defendants appealed.</p> <p>Error assigned was, inter alia, direction for plaintiff, quoting record.</p>

<p>Negligence — Infant—Proximate or efficient cause — Intervening cause — Unexpected cause — Unguarded machinery — Notice.</p> <p>1. A defendant is not liable for an accident which results from an unexpected intervening cause over which he has no control.</p> <p>2. A minor, under 14 years of age, who was trespassing on defendant’s property near to unguarded idle machinery, cannot recover damages for an injury received by coming in contact with the machinery after it was started, even if defendant knew he was there when it was started, if the direct and proximate cause of the injury was his slipping when he attempted to go, and there is no evidence that defendant knew or should have known this was likely to occur.</p> <p>Appeals — Review—Judgment n. o. v. — Evidence.</p> <p>3. In determining whether or not judgment n. o. v. should have been entered by the court below, the appellate court, when the case does not depend on written evidence, considers, as if set forth in a special verdict, only the facts and inferences which tend to support the finding of the jury and ignores all the testimony which the jury might properly have disbelieved.</p>

<p>Appeal, No. 121, Oct. T., 1923, by Mary Snyder Drew, decedent’s daughter, from decree of O. C. Allegheny Co., June T., 1921, No. 415, dismissing exceptions to findings of fact and conclusions of law on appeal from register of wills admitting to probate papers purporting to be will and codicil in estate of William Penn Snyder.</p> <p>Exceptions to findings of fact and conclusions of law of Trimble, J., on appeal from register of wills.</p> <p>Exceptions dismissed by Work, P. J., specially presiding, Miller, P. J., and Trimble, J. Mary Snyder Drew, decedent’s daughter, appealed.</p> <p>Error assigned was, inter alia, decree, quoting record.</p>

<p>Appeal, No. 136, Oct. T., 1923, by Edward A. Murdoch and David V. Murdoch, two of defendants, from decree of C. P. Allegheny Co., Jan. T., 1922, No. 2653, on bill in equity, in case of Inez Leslie Murdoch, Administratrix of estate of Henry Murdoch, deceased, v. Edward A. Murdoch, David V. Murdoch and John T. Murdoch.</p> <p>Bill for injunction, receiver and accounting. Before Ford, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decree for plaintiff. Edward A. Murdoch and David V. Murdoch appealed.</p> <p>Errors assigned were, inter alia, various rulings on evidence and decree, quoting record.</p>

<p>Appeal, No. 178, Oct. T., 1923, by defendant, from judgment of C. P. Allegheny Co., April T., 1921, No. 392, on verdict for plaintiff, in case of Amelia O. Crittenden v. Henry H. Hoffman, Receiver of Hoey & Co.</p> <p>Replevin for coupon bonds. Before Shafer, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was, inter alia, refusal of judgment n. o. v., quoting record.</p>

<p>Appeal, No. 165, Oct. T., 1923, by plaintiff, from order of C. P. Allegheny Co., Jan. T., 1923, No. 2074, sustaining statutory demurrer to statement of claim, in suit of Mary E. Lawman v. Peoples Savings and Trust Co. of Pittsburgh and Moorhead B. Holland, Trust Officer.</p> <p>Trespass for alleged fraudulent destruction of codicil to will. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Demurrer sustained. Plaintiff appealed.</p> <p>Error assigned was, inter alia, order, quoting record.</p>

<p>Appeals, Nos. 169 and 176, Oct. T., 1923, by defendant and plaintiff, from decree of C. P. Allegheny Co., Jan. T., 1921, No. 12, on bill in equity, in case of the B. V. D. Company v. Kaufmann & Baer Co.</p> <p>Bill for injunction and accounting. Before Stone, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decree for an injunction, but not for accounting or for penalties under statute, in opinion by Macfarlane and Reid, JJ., to which Stone, J., dissented. Both defendant and plaintiff appealed.</p> <p>Error assigned by defendant was decree, granting injunction, quoting record.</p> <p>Error assigned, by plaintiff was refusal of accounting and allowance of penalties, quoting decree and exception.</p>

Appeal, No. 97, Oct. T., 1923, by defendant, from decree of C. P. Allegheny Co., July T., 1921, No. 3805, on bill in equity in case of H. O. Perry and Fred Newcomb v. H. R. Sims. Bill for accounting. Before Carpenter, J. The opinion of the Supreme Court states the facts. Decree for plaintiffs. Defendant appealed. Error assigned was, inter alia, decree, quoting record.

Appeal, No. 162, Oct. T., 1923, by plaintiff, from judgment of C. P. Venango Co., Aug. T., 1921, No. 47, on verdict directed for defendant, in case of Charles Horewitz v. Franklin Foundry Co. Assumpsit for breach of contract. Before Criswell, P. J. The opinion of the Supreme Court states the facts. Judgment on directed verdict for defendant. Plaintiff appealed. Error assigned was portion of charge directing verdict for defendant, quoting it.

<p>Appeal, No. 12, Oct. T., 1923, by defendants, from judgment of C. P. Allegheny Co., Oct. T., 1922, No. 548, affirming decision of Workmen’s Compensation Board, in case of Alfred Meucci v. Gallatin Coal Company et al.</p> <p>Appeal from decision of Workmen’s Compensation Board which confirmed award of referee. Before Stone, J.</p> <p>Decision affirmed. Defendant appealed.</p> <p>Errors assigned were dismissal of exceptions ¡to decision of board.</p>

Appeal, No. 71, Oct. T., 1923, by plaintiff, from judgment of C. P. Cambria Co., March T., 1921, No. 32, for defendant n. o. v., on verdict for plaintiffs, in case of Steve Mardo et ux. v. Valley Smokeless Coal Co. Trespass for death of plaintiff’s son. Before Reed, P. J., of O. C., specially presiding. The opinion of the Supreme Court states the facts. Verdict for plaintiffs for $3,506. Judgment n. o. v., for defendant. Error assigned was judgment n. o. v., quoting record.

Appeal, No. 126, Oct. T., 1923, by plaintiffs, from decree of. C. P. Allegheny Co., April T., 1912, No. 2652, dismissing bill in equity, in case of Baltimore & Ohio Railroad Co. et al. v. Wilson Snyder Mfg. Co., and Denny Brereton et al., surviving Trustees under will of Mary E. Schenley, deceased, and John Moerlein et al., and Bovaird v. Seyfang Mfg.

<p>Trusts and trustees — Promissory notes — Proceeds of notes — Deposits of hank — Identification of trust funds — Negotiable instruments — Act of May 16, 1901, P. L. 194.</p> <p>1. Where renewal notes are sent by the maker to the payee to be discounted and the proceeds used to lift the old notes, and, between the day of discount and time for payment, the payee dies, these funds identified are fixed with a trust in the maker’s favor.</p> <p>2. The Negotiable Instruments Act of May 16, 1901, P. L. 194, permits the conditional delivery of such notes for a special purpose.</p> <p>3. Every person who receives money to be paid to another or to be applied to a particular purpose is a trustee, if so applied, as well as when not so applied.</p> <p>4. If he deposits such moneys with his own moneys, and after-wards takes sums from the common mass for his own use, it will be presumed, so long as the mass is as large as the original trust funds, that the sums so taken are his own and not the trust funds.</p>

<p>Appeal, No. 312, Jan. T., 1924, by plaintiff, from judgment of Superior Court, Oct. T., 1923, No. 292, reversing judgment of C. P. No. 1, Phila. Co., June T., 1921, No. 449, on verdict for plaintiff in case of Guiseppe Scibilia v. City of Philadelphia.</p> <p>Appeal from judgment of Superior Court: 82 Pa. Superior Ct. 328.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Judgment of common pleas reversed. Plaintiff appealed.</p> <p>Error assigned was, inter alia, judgment, quoting it.</p>

<p>Public officers — Discharge—Notice—Municipalities—Mandamus —Act of June 25, 1919, article XIX, section 18, P. L. 620.</p> <p>1. A notice of discharge to a member of the classified civil service of Philadelphia need not be made with the certainty of a bill of indictment, nor contain a rescript of the facts on which the discharging officer’s knowledge is based.</p> <p>2. Such notice is sufficient if it points to some specific law that has been violated, without going into details.</p> <p>3. In mandamus proceedings, brought by an employee discharged on such notice, the court is not concerned with the truth or falsity of the charge.</p> <p>4. In discharging an employee, it would be better practice for the head of the department to give the accused definite and specific information as a matter of justice and right, but the Act of June 25, 1919, article XIX, section 18, P. L. 620, relating to such discharge, does not require it.</p> <p>5. Efficiency is maintained through strict discipline; if the power to discipline is taken away, efficiency for most purposes is lost.</p>

<p>Appeal, No. 226, Jan. T., 1924, by the Commonwealth, from decree of O. C. Phila. Co., April T., 1921, No. 471, dismissing exceptions to adjudication, in estate of Sarah. Brooke Dolan.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that on May 22, 1908, Sarah Brooke Dolan executed a deed of trust to the Fidelity Trust Company, assigning and transferring certain designated securities “and all the assets which may be hereafter assigned and delivered to said trustee, its successors and assigns, by the said Sarah Brooke Dolan, upon a written direction to hold upon the trusts herein contained and set forth. In trust, nevertheless, from and after the date hereof and until the end of the period of twenty-one (21) years from and immediately after the death of her last surviving lineal descendant living at the time of her death, for the following uses and purposes, and under and subject to the several provisions, restrictions and limitations, viz:</p> <p>“1. To divide the net income and profit-derived therefrom into three equal parts and pay over the same as follows:</p> <p>“(a) One equal third part thereof to her son, Thomas J. Dolan, for and during the term of his natural life; one other equal third part thereof to her son, Clarence W. Dolan, for and during the term of his natural life; and the remaining one equal third part thereof to her son, H. Yale Dolan, for and during the term of his natural life.</p> <p>“(b) If any of the said sons of the said Sarah Brooké Dolan shall die leaving him surviving a wife and lineal descendant, or any or all such survivors, to divide the share of income theretofore payable to such deceased son and pay the same to such survivors as follows” viz:</p> <p>To such widow during widowhood, or, if there are lineal descendants, in equal shares with them, or, if no descendants, over in cross remainders.</p> <p>“2. No part of the principal composing said trust shall be divided or paid over by the said trustee until the end of the period of twenty-one (21) years from and immediately after the death of the last surviving lineal descendant of the said Sarah Brooke Dolan living at the time of her death, and thereupon, at the end of said period, the trust hereby created shall terminate and the whole corpus of the estate shall go and be transferred and set over by the trustee in equal shares to all the issue of the said three sons of the said Sarah Brooke Dolan then living, their heirs, executors, administrators and assigns, absolutely and forever, such issue to take per stirpes and not per capita.</p> <p>“The distribution of principal shall be made by the said trustee, if it elects so to do, by the division of the estate at the time in kind, such division to be made by it using its best discretion, or said trustee may at its election sell all or any part of the assets at the date of distribution in the same manner as is herein authorized for the sale for other purposes of any property, real or personal, and divide the proceeds so realized and applicable.</p> <p>“3. That said trustee is hereby authorized to grant, sell and convey any and all of the estate hereby vested in it or which shall at any time hereafter come into its possession as trustee hereunder, at such time or times, at public or private sale, for such price and upon such terms as to cash or upon credit as it may think best, and to make, execute and deliver to the purchaser or purchasers contracts, deeds, bills of sale and all other instruments in writing necessary or proper to carry this provision into effect, without liability on the part of the purchaser or purchasers for the application of the purchase money, free and discharged from all the trusts hereunder, and these provisions shall apply as fully to all property which the said trustee may acquire or purchase for the estate or which may hereafter be added to it, as to that which is hereby transferred to it. Upon any snch sales being made, the said trustee is further authorized and empowered to invest and reinvest the proceeds thereof in such property, real and personal, shares, bonds and other securities whatsoever, as to it shall seem proper, and to subscribe to any shares, bonds or securities, whether the same are or are not such investments as are by law defined or construed to be proper investments for trust funds, and in no event shall it be limited to the class of investments known as legal securities. During the lifetime of the said Thomas Dolan no securities hereby transferred shall be sold or any reinvestments of the fund hereby created be made without his approval and consent.</p> <p>“6. In the event of the resignation, refusal or inability to act of the said Fidelity Trust Company prior to the termination of the trust hereby created, a majority of the persons then in interest shall have the right to petition the court of competent jurisdiction for the appointment of its successor, and the person or corporation or both named by said beneficiaries in said petition shall, with the approval of the court and the entry of proper security, be thereupon appointed.</p> <p>“The said Sarah Brooke Dolan at any time during her life, and after her death a majority in interest of the beneficiaries hereunder may, either with or without cause assigned, cause the removal of the said Fidelity Trust Company, or any succeeding company subsequently appointed, by presenting a petition to the proper court, requesting the removal of such company as trustee and the appointment of another trust company or person or both to fill the vacancy caused by such removal. Upon the appointment of any new trustee or trustees, whether individual or corporation, the same duties shall devolve upon [and] the same rights inure to it or them as though originally appointed hereunder. The appointment of a trustee to fill any vacancy as provided for above shall be made by deed which shall also declare that such vacancy exists.</p> <p>“The trustee herein named, or any trustee appointed as its successor, shall not be liable for any errors in judgment in the exercise of the powers conferred upon it or them in this deed of trust.</p> <p>“The said Sarah Brooke Dolan at any time during her life hereby expressly reserves to herself the right to revoke this trust in its entirety or from time to time add to, alter or amend the same as to her shall seem fit.”</p> <p>Sarah Brooke Dolan died August 17, 1920. At the date of her death the personal estate so transferred was valued at $216,087.63, and on May 1, 1922, the Begister of Wills of Philadelphia, acting on behalf of the Commonwealth, assessed tax on the interest of H. Yale Dolan at 2% in the sum of $675.17, with interest thereon from August 17, 1921, to April 17, 1922. The auditing judge, Lamobelle, P. J., disallowed the claim of the Commonwealth. Exceptions to the adjudication were disallowed in an opinion by Thompson, J. See 3 D. & C. B. 264. The Commonwealth appealed.</p> <p>Error assigned was decree, quoting it.</p>