Volume 82 — Pennsylvania Superior Court Reports

Appeals, Nos. 207,208,209, 210, Oct. T., 1923, by defendants, from judgment of sentence of Q. S. Phila. Co., Nov. Sessions, 1922, Nos. 209, 210, 211, 212, on verdict of guilty in tbe case of Commonwealth of Pennsylvania v. Oreste Retaceo and Attelio Retaceo. Indictment for tbe unlawful possession and sale of drugs. Before Bartlett, J. The facts are stated in tbe opinion of tbe Superior Court. Verdict of guilty on wbicb judgment of sentence was passed. Defendants appealed.

Appeal, No. 228, Oct. T., 1923, by defendant, from judgment of Q. S. Chester County, Jan. Sessions, 1923, No. 35, on verdict of guilty in the ease of Commonwealth of Pennsylvania v. William V. Brown. Indictment for operating a motor vehicle while under the influence of intoxicating liquor. Before Butler, P. J. The opinion of the Superior Court states the case. Yerdict of guilty upon which judgment of sentence was passed.

Appeal, No. 50, Oct. T., 1923, by defendants, from order of C. P. No. 3, Phila. Co., Sept. T., 1920, No. 6486, discharging rule to open judgment in the case of Charles Gaus v. Louis Bleiman and Yetta Bleiman. Rule to open judgment entered on a bond and warrant accompanying a mortgage. Before Ferguson, J. The facts are stated in the opinion of the Superior Court. The court discharged the rule. Defendants appealed.

Appeal, No. 248, Oct. T., 1923, by defendant, from judgment and sentence of O. and T., Phila. Co., Oct. T., 1922, No. 517, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Samuel Levine. Indictment for arson. Before Terry, P. J., 44th Judicial District, specially presiding. The opinion of the Superior Court states the case. Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

Appeal, No. 137, Oct. T., 1923, by defendants, from the decree of O. P. No. 1, Phila. Co., Dec. T., 1873, No. 309, sustaining plaintiff’s appeal from taxation of costs by Prothonotary in the ■case ®f City of Philadelphia, to Use of Jacob M. Peters v. J. Kelly, George D. B. Kelly, Samuel M. McDowed, Harriet T. Wright and Thomas B. Gibb, Executor of J. McGregor Gibb, Deceased. Appeal from taxation of costs by Prothonotary.

<p>Appeal, No. 213, Oct. T., 1923, by defendants, from judgment of O. P. No. 1, Phila. Co., Dec. T., 1921, No. 70, on verdict for plaintiff in the case of Louis Rothschild, trading as Twinlock Company v. The Trexler Company, and Gaul Derr and Shearer Company, Union National Bank, Guarantee Trust and Safe Deposit Company and Franklin National Bank, Garnishees.</p> <p>Foreign attachment in assumpsit. Before McDevitt, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff in the sum of $1,103.50 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was refusal of defendants motion for judgment non obstante veredicto.</p>

Appeal, No. 151, Oct. T., 1923, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1921, No; 372, discharging rule for judgment for want of a sufficient affidavit of defense in the case of Joseph Bianchi, substituted plaintiff in the place and stead of Germain J. Bianchi and Peter Cabrelli v. Elizabeth. Raynor. Ejectment for possession of property at the corner of Juniper and McKean Streets in the City of Philadelphia.

Appeal, No. 264, Oct. T., 1923, by plaintiff, from judgment of O. P. No. 1, Pbila. Co., June T., 1921, No. 2924, on verdict for garnishee in attachment execution in the case of Isaac Sokoloff v. Abraham Weisberg and Lena, his wife, defendants, and Morris Feldman, garnishee. Attachment execution. Before Shoemaker, P. J. The facts are stated in the opinion of the Superior Court. The court directed a verdict in favor of the garnishee and judgment was entered thereon.

<p>Workmen’s Compensation Law — Injury not on premises of employer — Injury not in course of employment.</p> <p>An employee, who was injured in an accident, on his way to work and on premises not owned or controlled by his employer, is not entitled to compensation under the Workmen’s Compensation Law. Shickley v. P. & K. O. & I. Co., 2U Pa. 360, followed.</p>

Appeal, No. 174, Oct. T., 1923, by defendant, from judgment of O. P. No. 4, Pkila. Co., June T., 1922, No. 4146, ‘on verdict for plaintiff in the case of Helen Stroman, by her father and next friend, Jacob Marion Stroman, and Jacob Marion Stroman in his own right v. Penn Motors Corporations. Trespass to recover damages for personal injuries. Before Finletter, J. The facts are stated in the opinion of the Superior Court.

Appeals, Nos. 241 and 242, Oct. T., 1923, by defendant, from judgments of O. P. No-. 2, Phila. Co., Dec. T., 1920, No. 6356, on verdict for plaintiffs in the case of Margaret Gorman and Thomas Gorman v. The City of Philadelphia. Trespass to recover damages for personal injuries. Before Gordon, J. The facts are stated in the opinion of the Superior •Court.

<p>Appeal, No. 56, Oct. T., 1923, by defendants, from judgment of O. P. No. 1, Pbila. Co., June T., 1921, No. 2823, on verdict for tbe plaintiff in tbe case of Daniel Dever v. Alex. Kathrins and Harry Golen, trading as Kathrins and Golen.</p> <p>Assumpsit to recover rent due on a lease. Before Shoemaker, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff in the sum of $723.52 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was refusal to allow defendants to file a supplemental affidavit of defense.</p>

Appeal, No. 13, April T., 1923, by defendant, from judgment and sentence of Q. S. Venango Co., No. 24, April T., 1923, on verdict of guilty in the ease of Commonwealth of Pennsylvania v. James Amato. Indictment under the Act of March 27, 1923, P. L. 34, charging the unlawful possession and transportation of intoxicating liquor. Before Criswell, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment and sentence was passed.

<p>Appeals, Nos. 84 and 85, Oct. T., 1923, by defendants, from judgment of O. & T. Northampton Co., June T., 1922, No. 91, on verdict of guilty, in the case of Commonwealth of Pennsylvania v. Dementous V. Anagustov and Efratios Kalapaxis.</p> <p>Indictment for robbery. Before Stotz, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty of aggravated assault and battery, on which judgment of sentence was passed. Defendants appealed,</p> <p>Error assigned-was refusal of defendants’ motion in arrest of judgment.</p>

Commonwealth of Pennsylvania ex rel. James Fraley v. Samuel P. Rotan. Petition for Habeas Corpus, No. 3, Miscellaneous Docket.

<p>Appeal, No. 130, Oct. T., 1923, by defendant, from judgment of Municipal Court of Philadelphia, May T., 1922, No. 84, on verdict for plaintiff in the case of John Fay v. Robert E. Deady.</p> <p>Assumpsit for breach of contract. Before Knowles, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff in the sum of $1,591.40, 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. 162, Oct. T., 1923, by defendant, from judgment of Municipal Court of Philadelphia, March T., 1922, No. 734, on verdict for plaintiff in the case of James A. Hamilton v. American Indemnity Company. ' Assumpsit on policy of insurance. Before Walsh, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $1,048.09 and judgment thereon. Defendant appealed.

Appeal, No. 28, Oct. T., 1923, by defendant, from judgment of the Municipal Court of Philadelphia, Feb. T., 1922, No. 532, on verdict for plaintiffs, in the case of Philip Gordesky and Sidney Gordesky, copartners, trading as The Franklin Tobacco Company, v. Rose Ginsburg. Assumpsit to recover for merchandise sold and delivered. Before Walsh, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiffs in the sum of ’$773.71 and judgment thereon.

Appeal, No. 219, Oct. T., 1923, by plaintiff, from judgment of O. P. No. 5, Phila. Co., June T., 1920, No. 5624, on verdict for defendant, in the case of Charles L. Smyth v. Nathan Besnick. Assumpsit to recover money paid on account of the sale of real estate. Before Henry, P. J., 52d Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court. The court directed a verdict in favor of the defendant. Plaintiff appealed.

Appeal, No. 178, Oct. T., 1923, by plaintiff, from judgment of Municipal Court of Philadelphia, Oct. T., 1922, No. 574, in case tried by the court without a jury, in the suit of Substantial Building & Loan Association v. The Industrial Trust, Title & Savings Company. Assumpsit on a negotiable instrument. Before Cassiday, J., without a jury. The facts are stated in the opinion of .the Superior Court.

<p>Appeal, No. 64, Oct. T., 1923, by defendant, from judgment of the Municipal Court of Philadelphia, Oct. T., 1921, No. 94, in favor of the plaintiff in case tried by the court without a jury in suit of Harold Williams v. J. Gibson Mcllvaine Company.</p> <p>Trespass to recover for damage to an automobile. Before Walsh, J.</p> <p>The facts are stated- in the opinion of the Superior Court.</p> <p>The court entered judgment in favor of plaintiff for $275.91. Defendant appealed.</p> <p>Error assigned, among others, was refusal of defendant’s motion for judgment non obstante veredicto.</p>

Appeal, No. 34, April T., 1924, by plaintiff, from judgment of C. P. Allegheny Go., April T., 1923, No. 1244, affirming judgment of county court in the case of George Sapper, Trustee for the Creditors of Elias Jacob, v. J. Sherman Campbell, Prank C. Sturtevant and John J. McGovern, Adjusters. Appeal from judgment of county court. Before Swearingen, Reid and Kline, JJ. The facts are stated in the opinion of the Superior Court.

Appeal, No. 169, Oct. T., 1923, by defendant, from judgment of Municipal Court of Philadelphia, Dec. T., 1922, No. 282, in favor of plaintiff in case, tried by the court without a jury, in suit of Harry Kattelman v. Leah Goldenberg. Assumpsit to recover commissions earned in the sale of real estate. Before Cassidy, J., without a jury. The facts are stated in the opinion of the Superior Court.

<p>Bales — Warranty—Breach of warranty — Case for Jury.</p> <p>In an action for breach of contract in the sale of a knitting machine, the case is for the jury and a verdict will be sustained, where the issue is one of fact as to whether, or not the machine would work if properly operated.</p> <p>Appeals — Assignments of error — Questions not raised in court "below.</p> <p>The Superior Court will not review a case on a theory different from that on which it was tried in the court below, nor will questions not raised in the court below be considered on an appeal from the refusal of judgment non obstante veredicto.</p>

<p>Assumpsit — Fire insurance — Damage to personal property owned by third party — Construction of policy — Liability of assured to third party.</p> <p>In a fire insurance policy covering property of others temporarily in possession of assured, the meaning of the words “in trust or on consignment” may be limited and controlled by the use of other words or clauses.</p> <p>Where a fire insurance policy covered “property of the assured, held in trust or on consignment or sold but not removed, or belonging to others for which the assured is liable,” and third party had placed goods in the custody of assured without any agreement as to insurance, the liability of the insurance company is limited to the liability of the assured, and in case of loss occasioned by fire, the third party cannot share in the proceeds of insurance collected from the insurance carrier by the assured.</p>

Appeal, No. 28, April T., 1924, by defendant, from judgment of Q. S. Armstrong Co., June Sessions, 1923, No. 53, committing defendant to the Pennsylvania Training School, in the case of Commonwealth of Pennsylvania v. Clarence Carnes. Indictment for manslaughter. Before King, P. J. From the record it appeared that the defendant, a boy of thirteen years old, was arrested on a charge of involuntary manslaughter.

<p>The evidence secured by the illegal search could not be used against the defendant: Weeks v. United States, 323 U. S. 383; 34 Superior Ct. Rep. 341; Com. v. Vigliotti, 75 Pa. Superior Ct. 378; Boyd v. United States, 116 U. S. 616; Silverthorne Lumber Co. v. United States, 251 U. S. 385; Youman v. Com., 224 S. W. 860.</p>

Medical testimony was competent to prove under the facts that it was impossible for the defendant to have committed the offense charged: People v. Clark, 33 Michigan 112,1 Am. Crim.

Appeal, No. 299, Oct. T., 1923, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1922, No. 9584, discharging rule for judgment for want of a sufficient affidavit of defense in the case of Automobile Finance Company v. P. H. Markman, Jr., I. Hanstein; Justus Hanstein and Thomas Rodgers, trading as S. C. Rodgers Carriage Company. Replevin to recover possession of automobile. Before Gordon, J. Rule for judgment for want of a sufficient affidavit of defense.

<p>Alien enemies — Suspension of litigation — Statute of limitations —17orkmen’s c omp ensation.</p> <p>A foreign or international war suspends the operation of rights of action between tbe citizens of tbe countries participating in tbe conflict, as long as tbe war continues, and on tbe restoration of peace all rights suspended during hostilities, or which remain dormant, are revived.</p> <p>A war is not terminated until tbe ratification of tbe treaty of peace by tbe United States Senate. Prior to that time a state of war technically exists between tbe belligerent country and the United States. "When tbe treaties are ratified tbe rights and remedies suspended by tbe declaration of war are revived, and from that time tbe statute of limitations in tbe Workmen’s Compensation Act becomes operative again.</p> <p>A citizen of Ozeebo-Slovakia may recover in a claim under tbe Workmen’s Compensation Act, brought within one year after tbe ratification of tbe treaty of peace, although more than two years after tbe date of tbe accident.</p> <p>Siplyak v. Davis, Director General, 276 Pa. 49, followed.</p>

Appeal, No. 281, Oct. T., 1923, by defendant, from judgment of O. P. Franklin Co., Oct. T., 1921, No. 252, on verdict for plaintiff in the case of Charles W. Sollenberger and Charles E. Branthaver, partners, trading and doing business as 'Sollenberger and Branthaver, v. Samuel F. Scattergood, John K. Scattergood and William B. Scattergood, partners, trading and doing business as S. F. Scattergood and Company. Assumpsit for breach of contract.

Appeal, No. 43, Oct. T., 1923, by defendants, from judgment of Municipal Court of Philadelphia, June T., 1922, No. 635, on verdict for plaintiff, in the case of Richard M. Clegg and Harry Clegg, trading as Eichard M. Clegg & Co;, v. Warren H. Lees and Eussell C. Lees, trading as William H. Lees’ Sons. Assumpsit for goods sold and delivered. Before Knowles, J. The facts are stated in the opinion of the Superior Court.