Volume 80 — Pennsylvania Superior Court Reports

<p>Orphans’ court — Administrators—Sales of personal property— Jewelry — Private sale — Duties of administrator — Surcharge.</p> <p>The general rule for the administration of the estate requires the administrator to convert the assets in order that distribution may be made, unless the parties desire that the division of the assets be made in specie.</p> <p>Where the distribution cannot be made in kind, it is the duty of the administrator to sell, and not risk the depreciation in the value of the assets of the estate. Such a sale should normally be a public sale after notice to the parties interested, and adequate advertisement, according to the circumstances, in order that the highest price may be realized.</p> <p>If an administrator sells at public sale, the burden is upon any one who seeks to surcharge him with a loss; but if he sells at private sale, which he has a legal right to do, the burden is upon him to show that the prices obtained were the market values of the articles sold.</p> <p>Where an administrator, after a long delay, sells jewelry at private sale for less than the appraised value and no sufficient testimony is produced to explain the reason for such sale, or that it realized market prices, he will be surcharged with the difference between the appraised value of the jewelry and the amount it actually brought at private sale.</p>

<p>Public Service Company Law — Public Service Commission — Approval of charter — Electric companies — Exclusive territory.</p> <p>The action of the Public Service Commission in approving a charter of an electric light and power company operated by steam power will not be reversed, where it appeared that the company was chartered for the purpose of supplementing the capacity of a hydro-electric power company already engaged in supplying a particular territory.</p> <p>Under such circumstances, the protest of a third company, which was not furnishing electricity to the proposed territory, on the ground that the incorporation of the new company was an infringement of the exclusive franchise of the protestant company, was properly dismissed.</p>

<p>Equity — Building restrictions — Garage—Residential district— Decree.</p> <p>In a suit in equity to enjoin the defendant from converting the space under her front porch into a garage, the bill will be dismissed where such use of the defendant’s property does not constitute a nuisance in itself, or violate any building restrictions.</p> <p>Where the defendant seeks to change the space under a front porch, which had formerly been used for storing coal, into a place for keeping her automobile, and in so doing does not encroach on a prohibitive building line, she cannot be held to he violating the terms of her deed, and an injunction will be dismissed.</p> <p>Building restrictions should be narrowly construed as being in derogation of the full rights of ownership of the person holding title to the property.</p>

Appeal, No. 272, Oet. T., 1922, by respondent, from judgment of C. P. Lancaster Co., Aug. T., 1921, No. 58, on verdict for libellant on a feigned issue in an action of divorce in the case of Clara E. Elsesser v. Charles M. Elsesser. Libel in divorce. Before Landis, P. J. Issue awarded to ascertain by verdict of a jury if the defendant, who is the respondent in a divorce suit upon a charge of desertion, was guilty thereof. The jury rendered a verdict in favor of the libellant.

Appeal, No. 241, Oct.. T., 1922, by defendant, from judgment of C. P. Montgomery County, Nov. T., 1921, No. 11, in favor of the plaintiff, in case of J. Howard Johnson and Myra Johnson v. William Warren Shrawder. Equitable action in ejectment for the recovery of lands situated in North Wales, Montgomery County, Pa. Before Swartz, P. J. Rule for judgment in favor of the plaintiffs on the pleadings pursuant to the Act of June 7,1915, P. L. 887.

Appeal, No. 157, Oct. T., 1922, by defendant, from'order of O. P. No. 8, Pbila. Co., June T., 1921, No. 979, refusing to grant a new trial in the case of M. H. McCloskey v. Petersen Motors Inc. . Trespass for conversion of an automobile. Before Davis, J. From the record it appeared that the plaintiff claimed damages for the unlawful detention of an automobile, the property of the plaintiff, which had been taken to the establishment of the defendant for repairs.

Appeal, No. 226, Oct. T., 1922, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1919, No. 950, for claimant on feigned issue, in the case of Cecelia Gallner v. Adjustment, Inspection & Appraisal Company. Feigned issue to determine ownership of automobile truck upon sheriff’s interpleader. Before Patterson, J. The appellant sued to recover insurance premiums, and obtained judgments against the husband of the appellee.

Appeal, No. 2, April T., 1923, by defendant, from judgment of Q. S. Beaver County, Sept. Sessions, 1921, No. 114, on verdict of guilty in tbe case of Commonwealth of Pennsylvania v. Steve Sapk. Indictment for selling liquors without a license. Before Baldwin, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.

<p>Negligence — Personal injuries — Suit by husband and wife — Separate verdicts — Appeals—Act of May 8, 1895, P. L. 5Jj.</p> <p>Under the provisions of the Act of May 8, 1895, P. L. 54, where a personal injury not resulting in death was wrongfully inflicted on a married woman the rights of action accruing to her and her husband respectively by reason thereof shall be redressed in only one action brought in the names of both. The act further provides that separate verdicts shall be rendered in such action in favor of the wife and husband respectively, and separate judgments shall be entered thereon with the right to separate executions. It follows that separate appeals must be taken from the judgments so entered.</p> <p>Where the plaintiff, a married woman, sustained injuries in a moving picture theatre by falling on a broken step while descending a stairway, which was improperly lighted, the case was for the jury and a verdict for the plaintiffs will be sustained, where the evidence established that the defect had existed for six days prior to the accident and sufficient time had elapsed for the defendant to have constructive ^notice of such conditions.</p> <p>In such action, separate judgments should be entered for the husband and wife and, where this has not been done, the record will be remitted to the court below with instructions to enter separate judgments for the plaintiffs in accordance with the verdict, and as directed by the act of assembly.</p>

<p>Criminal law — Veterinary surgeons — Practice without registration — Act of May 5,1915, P. L. 2k8.</p> <p>Veterinary dentistry is a branch of veterinary medicine and is comprehended within the provisions of the Act of May 5, 1915, P. L. 248, regulating the registration of veterinary surgeons.</p> <p>This act is a valid exercise of the police power and is not in conflict with any constitutional provision, state or federal. The act forbids the practice of veterinary medicine without a license, and one who uses the title of doctor and operates on horses’ teeth without registering and obtaining such a license is guilty of a violation of the act.</p> <p>The offense is a continuing one and does not gain the offender perpetual immunity and establish his right to violate the law after two years of unlawful practice; where there was a violation of the act within two years of the finding of the indictment, it was not barred by the statute of limitations because the unlawful practice began many years prior thereto.</p>

Appeal, No. 220, Oct. T., 1922, by defendant, from judgment of C. P. Bucks County, Oct. T., 1919, No. 17, dismissing rule to strike off judgment in the case of J. Hibbs Buckman v. Margaret E. Somers. Petition for rule to show cause why judgment and assessment of damages should not be stricken off; why the return of service of the writ of foreign-attachment should not be set aside; and why the writ of attachment should not be quashed.

<p>Appeal, No. 99, Oct. T., 1922, by defendant, from judgment and sentence of Q. S. Bradford County, Dec. Sessions, 1921, No. 17, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Leon Finch.</p> <p>Indictment for selling liquor without a license and having unlawful possession of intoxicating liquors for beverage purposes. Before Maxwell, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Yerdict of guilty on which judgment of sentence was ' passed. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, the charge of the court and refusal to grant a new trial.</p>

<p>Appeal, No. 13, March T., 1923, by respondent, from decree of C. P. Luzerne Co., May T., 1920, No. 580, allowing a divorce in the case of George Swantkowski v. Clara Swantkowski.</p> <p>Libel in divorce. Before Woodward, J.</p> <p>The facts are stated in the opinion af the Superior Court.</p> <p>The case was tried before Woodward, J., without a jury, who granted a divorce. Respondent appealed.</p> <p>■ Errors assigned were the refusal to affirm various requests for findings of fact and of law and refusal to admit certain evidence offered by respondent.</p>

<p>Wills — Construction—"Issue" — Life estate — Buie in Shelley's Case.</p> <p>Where the actual intention of the testator, gathered from the language of a will, is to give only a life estate with remainder to tbe “issue” of the devisee, tbe word “issue” is not equivalent to tbe words “heirs of tbe body,” and tbe rule in Shelley’s Oase does not operate to vest tbe fee in tbe devisee.</p>

<p>Practice, C. P. — Pleading—Statement of claim — Evidence—Allegata and probata — Variance.</p> <p>In an action of assumpsit for breach of contract for failure to deliver certain consignments of grapes it was error to admit evidence as to the quality of the. grapes and their condition when they were received, where the plaintiff’s statement raised the single question of delivery. Breach of warranty not having been alleged, he will not be permitted to introduce evidence of such breach.</p>

<p>Divorce — Desertion—Evidence—Insufficiency.</p> <p>A decree of divorce, on the ground of desertion was properly refused, where the evidence established that the libellant acquiesced in the departure of the respondent and never requested her return or indicated any desire to that end.</p>

<p>Appeal, No. 206, Oct. T., 1922, by defendants, from decree of C. P. Franklin Co., In Equity, Equity Docket, vol. 4, page 220, in tbe case between Grover Shaffer, plaintiff, and John W. Hoke, executor of the will of Samuel Stinger, deceased, and Chambersburg Trust Company, defendants.</p> <p>Bill for an injunction restraining one of the defendants from collecting, and the other from paying, a certificate of deposit or any moneys due thereon, and also praying for a decree adjudging the plaintiff to be the legal owner of the certificate. Before Gillan, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court made the order as prayed for by the plaintiff. Defendants appealed.</p> <p>Error assigned, inter alia, was the decree of the court.</p>

Appeal, No. 237, Oct. T., 1922, by defendant, from judgment of Q. S. Lancaster Co., April Sessions, 1922, No. 22, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Louis E. Ryder. Indictment for fraudulent conversion. Before Hassler, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty upon which judgment of sentence was passed.

<p>Contracts — Automobiles—Repairs — Lien — Sufficiency of contract to support lien — Essentials—Proof—Failure to agree upon price.</p> <p>In order to give the party doing repair work upon an automobile a lien for his proper charges, it is sufficient for him to prove that the assent of the owner was given in response to his request for authority to proceed with the work. If no reference was made to the price it will be implied that the work and materials were to be paid for at their value. The owner cannot knowingly receive the benefit in the enhancement of the value of his property and then decline to pay for it.</p> <p>A contract to pay for repairs to ail automobile is sufficiently established by proof that the owner when asked if it was all right to do the work, replied “All right go ahead with it.”</p> <p>Names — Fictitious names — Registration-—Replevin — Intervening defendant — Claim for lien — Act of May 10,1921, P. L. J/-65.</p> <p>An intervening defendant, in replevin, who sets up a claim for repairs, as a lien, against the automobile replevied is not, in the usual acceptation of the term, bringing a suit. The fact that such defendant had not registered the fictitious name, under which he was doing business, at the time the contract for repairs was made does not deprive him of his right to maintain his lien, nor does his neglect to register, before filing his claim, debar him. The Act of May 10, 1921, P. L. 465, amending the Act of June 28, 1911, P. L. 645, was not intended to apply to such situations.</p>

<p>Charities — Public charities — Taxes—Exemption.</p> <p>A home for aged persons, the charter of which declares its object to be to provide “a home for aged and infirm Friends and Friendly people of limited means” is not a “purely public charity” which under the Constitution of Pennsylvania and the statutes can be relieved from taxation.</p> <p>The fact that the charter provisions have been disregarded in the actual management of the home does not affect or alter the scope of its charities nor affect its liability for taxation.</p>

Appeal, No. 1, April T., 1923, by defendant, from judgment and sentence of Q. S. Butler Co., March Sessions, 1922, No. 24, on verdict of guilty in the case of Commonwealth of. Pennsylvania v. M. R. Hay. Indictment for keeping a bawdyhouse. Before Briber, P. J. The facts are stated in the opinion af the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

Appeal, No. 207, Oct. T., 1922, by plaintiff, from judgment of C. P. Lancaster Co., Jan. T., 1919, No. 78, on verdict for defendant in the case of Jobn E. Sprout v. Howard Kirk. Trespass to recover damages for injuries to an automobile. Before Hassler, J. The facts are stated in the opinion af the Superior Court. The court directed a verdict in favor of the defendant and judgment was entered thereon. Plaintiff appealed.

Appeal, No. 33, March T., 1922, by libellant, from order of C. P. Luzerne County, July T., 1921, No. 228, discharging rule to show cause why respondent should not pay alimony and counsel fees pendente lite in tbe case of Mary R. Murray v. Michael J. Murray. Rule for alimony and counsel fees pendente lite. Before Woodward, J. Tbe facts are stated in tbe opinion of tbe Superior Court and in tbe former decision upon tbe same case, 78 Pa. Superior Ct. M3.

<p>Appeal, No. 25, March T., 1923, by defendant, from judgment of C. P. York Co., August T., 1921, No. 115, on verdict for plaintiff in the case of James R. Haldeman v. Read Machinery Company.</p> <p>Assumpsit for salary due under contract of employment. Before Wanner, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff in the sum of $526.25 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was refusal of defendant’s motion for judgment non obstante veredicto.</p>

Appeal, No. 27, March T., 1923, by W. F. Dusman, from order of Q. S. York Co., Oct. Sessions, 1920, No. 1, extending the time for filing the report of viewers in the case of Road in Manheim Township, York County. ■ Exceptions to report of viewers. Before Wanner, P, J. The opinion of the Superior Court states the case. Error assigned, among others, was in continuing the time for filing the report of viewers.

Appeal, No. 94, Oct. T., 1923, by defendant, from decree of O. P. Berks County, Aug. T., 1921, No. 47, discharging rule to show cause why defendant should not be discharged from arrest on capias ad satisfaciendum in the case of Cecilia W. Matz v. Ella Haug, appellant. Rule to show cause why one arrested on a civil process should not be discharged. Before Wagner, J. The facts are stated in the opinion of the Superior Court. The court discharged the rule. Defendant appealed.

Appeal, No. 6, March T., 1923, by Estate of W. L. Powell, from judgment of C. P. Cumberland Co., Dec. T., 1920, No. 66, dismissing exceptions to Auditor’s Report in the Matter of the Harrisburg Trust Company, substituted trustee for Prank R. Leib, trustee, deceased. Exceptions to auditor’s report. Before Maust, P. J. The opinion of the Superior Court states the case. The court dismissed the exceptions and confirmed the report of the auditor.