Volume 83 — Pennsylvania Superior Court Reports

Appeal, No. 294, Oct. T., 1923, by respondent, from decree of O. P. Berks Co., Nov. T., 1921, No. 2, granting a divorce, in the case of Lewis K. Walter v. Lillie E. Walter. Libel in divorce. Before Biddle, P. J., Ninth Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court. The case was referred to Ira G. Kutz, Esq., as master, who recommended that a divorce be granted.

Appeal, No. 184, Oct. T., 1923,, by plaintiff, from judgment of the Municipal Court of Phila. Co., Domestic Relations Division, No. 33684, dismissing petition for writ of habeas corpus in the case of Commonwealth, ex rel. Elizabeth Kelley, v. Michael J. Kelley. Petition for writ of habeas corpus. Before Brown, P. J. and Gorman, J. The facts are stated in the opinion of the Superior Court. The court dismissed the petition. Plaintiff appealed.

Appeal, No. 318, Oct. T., 1923, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1922, No. 7193, directing a verdict in favor of defendants, in the case of Ella A. Kinsley v. Joseph T. Kinsley; F. King Wainwright, Clement R. Wainright and Laura L. Wainright, executors of the Estate of Joseph R. Wainright, deceased. Sheriff’s interpleader to determine the title to household goods. Before Finletter, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 261, Oct. T., 1923, by John H. McMullen, from decree of O. O. Phila. Co., April T., 1923, No. 1137, dismissing exceptions to adjudication, in the Estate of Catherine Collins deceased. Exceptions to adjudication. Before Thompson, J. The facts are stated in the opinion of the Superior Court. The court dismissed the exceptions. Claimant appealed. Error assigned, was, among others, decree of court.

Appeal, No. 172, Oct. T., 1923, by defendant, from judgment of C. P. No. 5, Phila. Go., June T., 1922, No. 1113, making absolute rule for judgment in the amount admitted to be due in the defendant’s affidavit of defense, in the case of Philip Katz and First Peoples Trust Company to the use of Philip Katz v. Boyal Insurance Company, Limited. Assumpsit on policy of insurance.

<p>Criminal law — Seduction — Conviction of fornication growing out of same act — Trials—Pleas of autrefois convict.</p> <p>On the trial of an indictment for seduction, a plea of autrefois convict on a charge of fornication growing out of the same act of the parties is sufficient to prevent a conviction.</p> <p>While the plea is sufficient to prevent a conviction on the charge of seduction, where the parties have been guilty of various acts of illicit sexual intercourse, the defendant cannot be discharged, because the jury could find him guilty of fornication, and under such circumstances, a new trial will be granted.</p>

Appeals, Nos. 335, 336, 337 and 338, Oct. T., 1923, from decree of the Orphans’ Court of Phila. Co., Jan. T., 1917, No. 513, sustaining exceptions to adjudication in the Estate of Francesco Colucci, deceased. Exceptions to adjudication. Before Gest, J. The facts are stated in the opinion of the Superior Court. The auditing judge allowed the claim of the County of Philadelphia and awarded to it the sum of $927.79, as shown by the account of the guardian.

<p>cited: Reid v. Durboraw, 272 Federal Reporter 99; O’Donnell v. Metropolitan Life Insurance Company et al., 102 Atlantic Reporter 163; Beatty’s Appeal, 122 Pa. 428, 434.</p>

Appeal, No. 53, April T., 1924, by plaintiffs, from judgment of C. P. Westmoreland Co., Feb. T., 1922, No. 725, refusing to strike off judgment of nonsuit in the case of G. F. Kelly and J. S. Cook, partners doing business as Kelly & Cook v. West Penn Railways Company. Trespass to recover damages for personal injuries. Before Copeland, P. J. The facts are stated in the opinion of the Superior Court.

Appeals, Nos. 153, 154 and 155, April T., 1924, from decree of O. C. Allegheny Co., June T., Í916, No. 176, dismissing exceptions to adjudication in the Estate of James T. Arnold, deceased. Exceptions to adjudication. Before Miller, P. J. The facts are stated in the following opinion of the court below: The question is, whether the estate of the decedent is liable for collateral inheritance tax.

Appeal, No. 97, April T., 1924, by protestant, from order of the Public Service Commission, Application Docket No. 7758, 1923, in re Application of C. John Henry, for the approval of the exercise of the right to operate motor vehicles as a common carrier. Application by C. John Henry for a certificate of public convenience to operate motor vehicles on call and demand.

Appeal, No. 130, April T., 1924, by plaintiff, from order of C. P. Allegheny Co., July T., 1923, No. 85, making absolute rule to open judgment in the case of I. F. Bates v. F. Kick and Adele E. Kick. Rule to open judgment. Before Carnahan, J. The facts are stated in the opinion of the Superior Court. The court made absolute the rule. Plaintiff appealed. Error assigned was the order of the court.

Appeal, No. 126, April T., 1924, by defendant, from judgment of C. P. Cambria Co., Sept. T., 1922, No. 916, on verdict for plaintiff in tbe case of Evans-Morrow Motor Company, a Corporation, v. Charles J. Samuels. Replevin for automobile. Before Reed, P. J. of O. C., specially presiding. The facts are stated in the opinion of the Superior Court, Verdict for plaintiff in the sum of $1,774.48 and judgment thereon. Defendant appealed.

Appeal, No. 165, April T., 1924, by plaintiff, from judgment of C. P. Allegheny Co., Jan. T., 1921, No. 1892, on verdict for defendant in the case of .Wilbijr F; Douglass v. Universal Auto Sales Corporation. Assumpsit for breach of contract. Before Carpenter, J.' 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. 89, Oct. T., 1924, by defendant, from judgment of Q. S. Pliila. Co., Oct. T., 1922, No. 361, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Harry Gittelman. Indictment for false pretense. Before Gordon, J. The facts are stated in the opinion of the Superior Court. Verdict of guilty on which judgment of sentence was passed. Defendant appealed. Errors assigned were various rulings on evidence and the charge of the court.

<p>Appeal, No. 90, Oct. T., 1924, by defendant, from judgment of Q. S. Phila. Co., Oct. T., 1922, No. 361, on verdict of guilty in the case of Commonwealth of Pennsylvania v. Harry Gittelman.</p>

Appeal, No. 115, April T., 1924, by defendant, from judgment of O. P. Allegheny Co. sitting in Equity, April T., 1923, No. 1430, in the case of John F. Haggerty v. Liberty Ledger Publishing Company, C. T. Pauli and Edward S. Gessner. Bill in equity to compel the transfer of certain stock. Before Macfarlane, J. The facts are stated in the opinion of the Superior Court. The court granted an injunction requiring the defendant to deliver one share of stock to the plaintiff.

Appeal, No. 134, April T., 1924, by defendant, from judgment of C. P. Allegheny Co., July T., 1921, No. 886, on verdict for plaintiff, in the case of John C. Kaiser v. Nordhem Service Company. Trespass to recover damages for painting advertising sign on plaintiff’s premises. Before Ford, J. The facts are, stated in the opinion of the Superior Court. The jury rendered a verdict in favor of the plaintiff in the sum of $200, and judgment was entered thereon. Defendant appealed.

Appeal, No. 54, April T., 1924, by plaintiff, from decree of C. P. Erie Co., Nov. T., 1920, No. 5, sitting in equity, dismissing bill for an accounting in the case of John W. Storke v. Wayne Brewing Company and Walter W. Ginrich. Bill in equity to compel an accounting. Before Hirt, J. The facts are stated in the opinion of the Superior Court. The court dismissed the bill. Plaintiff appealed. Error assigned was, among others, the decree of the court.

Appeal, No. 6, April T., 1924, by plaintiff, from judgment of C. P. Fayette Co., Sept. T., 1920, No. 156, in favor of defendant non obstante veredicto, in the case of William R. J ones v. East Fayette Coal Company, Inc. Assumpsit for wages. Before Reppert, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $780. Defendant moved for judgment non obstante veredicto which was granted by the court below. Plaintiff appealed.

Appeal, No. 69, April T., 1924, by plaintiff, from judgment of C. P. Beaver Co., Dec. T., 1921, No. 303, in favor of defendant on affidavit of defense raising questions of law in the case of C. L. Householder v. Borough of Beaver Falls. Assumpsit for services rendered. Before Reader, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 135, April T., 1924, by defendant, from judgment of C. P. Butler Co., Sept. T., 1922, No. 87, on verdict in favor of plaintiff in the case of George Knaell v. Pittsburgh, Mars & Butler Railway Company. Trespass to recover damages for personal injuries. Before Reiber, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $2,000 and judgment thereon. Defendant appealed.

Appeal, No. 98, April T., 1924, by defendant, from judgment of C. P. Allegheny Co., April T., 1915, No. 2366, on verdict for plaintiff in the case of Mollie Kline, Edward Kline and Martin D. Kline v. City of McKeesport. Appeal from award of Board of Viewers. Before Drew, J. The facts are stated in the opinion of the Superior Court. At the trial it appeared that the plaintiffs claimed damages for a change of grade on Ash Street in the City of McKeesport.

Appeal, No. 49, April T., 1924, by defendant, from judgment of C. P. Allegheny Co., April T., 1922, No. 1404, directing a verdict for the plaintiff in the ease of W. W. Jenkins, Trustee in Bankruptcy of the Estate of James Jefferson McClain, v. North Pole Ice Company. Assumpsit to recover amount paid on attachment execution. Before Reid, J. The facts are stated in the opinion of the Superior Court.

<p>Sales — Sales Act — Acceptance—Memorandum in writing — Evidence.</p> <p>In an action of assumpsit for goods sold and delivered, the case is for the jury and a verdict for the plaintiff will be sustained, where evidence was produced which, if believed, established that the goods had been received by the defendant, accepted by it, and never returned.</p> <p>A seed list, which consisted of four numbered pages and which totaled to a correct aggregate sum, is a sufficient memorandum within the provision of the 4th section of the Act of May 19, 1915, P. L. 543 (Sales Act).</p>

<p>Appeal, No. 62, April T., 1924, by defendant, from judgment of C. P. Cambria Co., Sept. T., 1918, No. 313, on verdict for plaintiff in tbe case of Hallet & Davis Piano Company v. George Fisher.</p> <p>Feigned issue to determine title to personal property. Before McCann, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court directed a verdict in favor of the plaintiff and entered judgment thereon. Defendant appealed.</p> <p>Error assigned was, among others, the refusal of defendant’s motion for judgment non obstante veredicto.</p>

Appeal, No. 45, April T., 1924, by defendant, from judgment of C. P. Beaver Co., March T., 1922, No. 353, on verdict for plaintiff in the case of R. Munroe & Sons v. Frank Mason and Louis E. Zaharides. Ejectment to recover possession of one and one-third acres of land situate at Wolf Run in Beaver County. Before Baldwin, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff and judgment thereon. Defend ant appealed.

Appeal, No. 75, April T., 1924, by plaintiff, from judgment of C. P. Allegheny Co., Oct. T., 1921, No. 2508, in favor of defendant non obstante veredicto, in the case of Louis Sehloss v. Importers and Exporters Insurance Company. Assumpsit on policy of insurance. Before Ford, J. The facts are stated in the opinion of the Superior .Court. Verdict for plaintiff in the sum of $1,648.13.

Appeal, No. 104, April T., 1924, by defendant, from judgment of C. P. Cambria Co., Sept. T., 1920, No. 124, on verdict for plaintiff in the case of Maryland Casualty Company v. C. E. Specbt. Assumpsit to recover certain premiums on a bond, together with attorney fee. Before Reed, P. J. of O. C., ' specially presiding. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $692.75 and judgment thereon. Defendant appealed.

Appeal, No. 9, April T., 1924, by plaintiff, from judgment of C. P. Allegheny Co., Oct. T., 1921, No. 2, in favor of defendant non obstante veredicto in the case of Bank of Secured Savings, a Corporation, v. O. F. Rudolph et al. Interpleader to determine title to automobile. Before Ford, J. The facts are stated in the opinion of the Superior Court. Yerdict for plaintiff. Subsequently, on motion, the court entered judgment in favor of the defendant non obstante veredicto.

Appeal, No. 119, April T., 1924, by Samuel Y. Free, from judgment of C. P. Allegheny Co., Oct. T., 1922, No. 2295, making absolute rule for judgment for want of an affidavit of defense in the case of F. M. Taylor v. Frank H. Tudor et al. Rule for judgment for want of a sufficient affidavit of defense. . Before Row and, J. The facts are stated in the opinion of the Superior Court and in the report of a former appeal at 81 Pa. Superior Ct. 306. The court made absolute the rule.

<p>Appeal, No. 175, April T., 1924, by use-plaintiff, from judgment of C. P. Allegheny Co., April T., 1921, No. 1094, striking off order in the case of William Zinsser, for the use of M. L. Thompson, v. Herman Zinsser.</p> <p>Buie to show cause why order filed with the prothonotary, making to plaintiff’s use part of a judgment should not be stricken from the record. Before MacEARLANE, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court made absolute the rule. Use-plaintiff, M. L. Thompson, appealed.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 98, Oct. T., 1924, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1923, No. 724, on verdict for plaintiff in the case of George M. Strohlein, trading as Maerky Machine Works, v. J. Turner & Co., a corporation. Assumpsit for breach of contract. Before Martin, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $1,845, and judgment thereon. Defendant appealed.

Appeal, No. 114, April T., 1924, by plaintiff, from judgment of O. P. Allegheny Co., July T., 1922, No. 942, in favor of defendant non obstante veredicto, in the case of William J. Wright v. A. & S. Wilson Company. Trespass to recover damages for personal injuries. Before Ford, J. Tlie facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $1,500.

Appeal, No. 73, April T., 1924, by defendant, from judgment of C. P. Somerset Co., May T., 1923, No. 295, discharging rule to open judgment in the case of Johnstown and Somerset Railway Company v. N. A. Mostollar. Rule to open judgment. Before Sloan, P. J., 18th Judicial District, specially presiding. The facts are stated in the opinion of the Superior Court. The court discharged the rule. Defendant appealed. Error assigned was, among others, the decree of the court.

<p>Appeal, No. 167, April T., 1924, by plaintiff, from judgment of C. P. Somerset Co., Sept. T., 1922, No. 1908, in favor of defendant non obstante veredicto in the case of W. Arthur Humbert, Administrator of the Estate of Sarah J. Humbert, Deceased, v. William P. Meyers.</p> <p>Trespass for deceit. Before Reed, P. J., O. C. of the 47th Judicial District, specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict for plaintiff in the sum of $1,000.</p> <p>Subsequently, on motion, the court entered judgment in favor of the defendant non obstante veredicto. Plaintiff appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 148, April T., 1924, by protestants, heirs of Henry Reiber, George L. Reiber, Ida F. Reiber, Anna M. Reiber, Edw. Reiber, Nora D. Reiber, William K. Miller, Edith P. Miller, Cora A. Aland, Jos. W. Aland, Bertha M. Miller, Analene M. Colbert, W. H. Colbert, Loretta C. Lee, W. H. Lee, Augusta B. Meiser, Fred H. Meiser, Dorothy C. Meiser, Paul J. Meiser and Dorothy B. Meiser, from order of the Public Service Commission of the Commonwealth of Pennsylvania, In re application of the West Penn Power Company, for approval of the exercise of the right of eminent domain.</p> <p>Application to the Public Service Commission for a certificate of public convenience approving the exercise of the right of eminent domain.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The Public Service Commission granted a certificate of public convenience. Protestants appealed.</p> <p>Error assigned was the order of the Public Service Commission.</p>

Appeal, No. 33, Feb. T., 1924, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1920, No. 859, on verdict for plaintiff, in the case of Fannie E. Martin v. Prudential Insurance Company of America. Assumpsit on policy of life insurance. Before Fuller, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $1,172.50 and judgment thereon. Defendant appealed.

Appeal, No. 109, April T., 1924, by defendant, from judgment of C. P. Lawrence Co., March T., 1921, No. 57, on verdict for plaintiff in the case of John H. Gross, Jr., v. Mifflin S. Kincaid. Assumpsit to recover commissions alleged to have been earned in the sale of real estate. Before Embry, P. J. The facts are stated in the opinion of the Superior Court. The jury rendered a verdict in favor of the plaintiff in the amount of $1,760.75, and judgment entered thereon.

Appeal, No. 125, April T., 1924, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1921, No. 2636, on verdict for the plaintiff in the case of Ljubica Cavlovic v. Mike Nikolish. Trespass for slander. Before Drew, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $350 and judgment thereon. Defendant appealed. Error assigned was the charge of the court;

<p>Taxation — Real estate taxed for county purposes — Act of April £9,18klf., P. L. I¡86 — Assessment of coal mine — Appeal from assessment.</p> <p>When an appeal is taken from the decision of the board of revision and appeal to the court of common pleas, the question before the latter tribunal is not whether the value placed upon certain constituent elements properly entering into the value of the subject of taxation is just and equitable, but whether the assessment of the subject as a whole is just and equitable.</p> <p>In levying an assessment on a coal mine for real estate tax purposes, the assessers may place a separate valuation upon each of the component parts of the mine, and this practice will not affect the integrity of the assessment.</p> <p>Machinery which is not stationary and not indispensable to the operation of the coal mine as such should not be taxed as real estate.</p> <p>Tax laws must be construed strictly, and the doctrine of constructive annexation of personalty to the real estate, thereby making the personalty subject to a real estate tax, cannot be applied.</p>

Appeal, No. 64, April T., 1924, by defendant, from judgment of O. P. Erie Go., Sept. T., 1921, No. 289, on verdict for plaintiff, in the pase of G. Edgar Betts and Catherine Betts v. Young Men’s Christian Association of Erie. Trespass to recover damages for personal injuries. ■Before Rossiter, P. J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 58, Oct. T., 1923, by respondent, from order of C. P. Delaware Co., Sept. T., 1920, No. 464, discharging rule to vacate decree of divorce, in the case of John H. Fleming v. Oda Booth Fleming. Eule to vacate decree of divorce. Before Broom all, J. The facts are stated in the opinion of the Superior Court. The court discharged the rule. Eespondent appealed.

Appeal, No. 95, April T., 1924, by Pennsylvania Gas Company, from order of the Public Service Commission of the Commonwealth of Pennsylvania, in re Complaints of L. W. Mathias et al. v. Pennsylvania… Held: in the interest of the public welfare, not to be an unjust discrimination.

Appeal, No. 78, April T., 1924, by defendant, from judgment of C. P. Butler Co., Dec. T., 1923, No. 21, on verdict for plaintiff in the case of Theodore L. Kradel v. O. C. Steele. Assumpsit to recover commissions earned in the sale of real estate. Before Reiber, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $127.88 and judgment thereon. Defendant appealed.

<p>Vendor — Vendee—Sales of stock — Agency—Failure to establish.</p> <p>In an action of assumpsit to recover money paid for alleged worthless stock sold under misrepresentations of the vendor, a judgment of nonsuit will be sustained, where the plaintiff has failed to establish that the persons who sold him the stock were the agents of the defendant company.</p>

<p>Taxation — School tax — Road tax — Levy — Valuation — Act of May 16,1921, P. L. 575 — Act of May 11,1921, P. L. 508, section 8.</p> <p>A levy for both school and road tax must be made on the last adjusted valuation for county purposes. The levy must be based upon the assessed valuation as revised and equalized by the county commissioners, and not upon the return of the assessors to the commissioners.</p> <p>As long as the valuation returned by the assessor is open to correction by the board of revision, the valuation has not been adjusted within the -contemplation of the statute. The valuation for purposes of taxation is the assessment corrected by the county commissioners after they, as a board of revision, have disposed of all appeals.</p> <p>If, at the time the tax must be levied for the particular year, it is impossible to secure the adjusted valuation, which is based upon the assessor’s return for that year, the levy must be on the adjusted valuation of the last year in which there was an adjusted valuation. • Taxes which were not assessed on the last adjusted valuation for county purposes are improperly levied, and the collection of the same will be restrained.</p> <p>Equity — Taxation—Illegal assessment — Restraint.</p> <p>Equity has jurisdiction to restrain the collection of school and road taxes illegally assessed.</p>

Appeal, No. 138, April T., 1924, by defendant, from judgment of C. P. Allegheny Co., April T., 1922, No. 240, on verdict for plaintiff in the case of Operators Fuel Agency v. Eastern Fuel Company. Assumpsit for goods sold and delivered. Before Carpenter, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $1,756.13 and judgment thereon. Defendant appealed.