author: Mr. Justice Gordon

text:
    Owen versus Western Saving Fund.
    1. In an action upon the case against a recorder of deeds, for damages suffered by reason of a false certificate of search given by the recorder toJ the plaintiff, in the absence of fraud, the Statute of Limitations begins to j run from the time when the search was given, and not from the development of the damage.
    2. It is immaterial that the party who received and paid for the search, had no knowledge of its falsity or cause for inquiry until more than six years after it was given. The cause of action, within the meaning of the Statute of Limitations, was the issuing the false certificate. The right of action accrued to the plaintiff as soon as it parted with its money on the faith of it, and from that period the statute began to run.
    3. With reference to the Statute of Limitations, there is no distinction ' between torts arising from contracts and those which arise from official misfeasance.
    January 7th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1880, No. 356.
    Case, by the Western Saving Fund Society of Philadelphia against Joshua T. Owen. The narr. contained four counts, alleging substantially, a breach of duty, in that the defendant, recorder of deeds for the county of Philadelphia, did negligently certify, on November 4th 1867, that there were no unsatisfied mortgages of record in his office, on certain premises on Arch street, in said city, whereas there was a certain unsatisfied mortgage on said premises, of record, dated August 13th 1836, for §6000. That in 1878 the plaintiffs were damnified by reason thereof, and that they then for the first time discovered the falsity of the search. Pleas, not guilty, and actio non accrevit infra sex> annos. Replication and issue.
    Afterwards, on January 7th 1880, the following ease stated was agreed upon for the opinion of the court:
    By indenture of mortgage, dated the 13th day of August 1836, one Jacob S. Rose, being the owner of the property hereinafter mentioned, conveyed to Brittain Cooper in mortgage, to secure the payment of $6000 in one year, with interest, certain premises described as being situated on the south side of Mulberry street, at the distance of 'one hundred and forty feet west of Eleventh street, in the city of Philadelphia, containing in front twenty feet, and extending in depth one hundred and forty-one feet. This mortgage was on the same day duly recorded at Philadelphia, in Mortgage Book S. H. F., No. 2, page 283, &c.; and by four assignments, duly recorded in the same office, the said mortgage subsequently became vested in Caspar W. Pennock.
    By an ordinance of councils of the city of Philadelphia, approved the 8th day of December' 1853, sect. 1, it is enacted, “ That Cedar street, High street, Mulberry street and Sassafras street, shall be hereafter named and called respectively, South street, Market street, Arch street and Race street.”
    ' By deed dated January 2d' 1855, duly recorded in the same office, the said premises became vested in Robert McGrath.
    In the month of November 1867, the plaintiffs, being so requested by McGrath, agreed to loan him the sum of $12,000 on the security of a first mortgage, to be executed by him; of the premises.
    The plaintiffs thereupon applied to the defendant, who was the recorder of deeds of Philadelphia county (and whose term extended from November 29th 1866, to November 29th 1870), to certify any unsatisfied mortgages upon the premises, given by the said Jacob S. Rose, from August 1st 1836, to September 1st 1844, the said premises being described as situate “ on the south side of Arch street, one hundred and forty feet west of Eleventh street; containing in front twenty feet, and extending in depth one hundred and forty-one feet.” Upon receipt of the fee demanded therefor, the defendant’s clerk did, on the 4th of November 1867, certify under the defendant’s seal of office, that there were no' unsatisfied mortgages of the above premises.
    On the faith of this certificate, the said sum of $12,000 was loaned to McGrath on the security of his supposed first mortgage, which was executed to the plaintiffs and duly recorded. The defendant’s certificate was based on a search made from a private working index, compiled for the convenience of a former recorder of deeds, wherein the mortgagor’s name appears as Jacob S. Ross. The official index, however, correctly discloses the mortgage by Jacob S. Rose.
    The interest upon the plaintiffs’ mortgage of $12,000, was regularly paid until the year 1876, when default being made, proceedings were instituted by the plaintiffs on the said mortgage, the premises exposed to sale, and purchased bv them on the 3d of December 1877, for $5000, and a sheriff’s deed therefor duly acknowledged and delivered.
    After the plaintiffs had thus acquired title, they were notified by the holders of the Rose mortgage, that six months’ interest thereon was unpaid. This was the first notice that the plaintiffs had of the existence of this prior mortgage. It subsequently appeared, that up to that time, interest had been regularly paid upon this Rose mortgage, and its existence concealed from the plaintiffs. Proceedings were then instituted on the same, against Jacob S. Rose, defendant, and the present plaintiffs terre-tenants, in which judgment was, on March 19th 1878, obtained for $5003.20, and a levari facias issued, under which the premises were to be sold on the 1st Monday of May 1878, and to avoid such sale, the present plaintiffs, on the 23d day of April 1878, paid to the attorney for the plaintiffs in such suit the sum of $5051.26.
    On May 4th 1878, this writ was issued, and the defendant pleaded, inter alia, the Statute of Limitations.
    If, upon the above facts, the court should be of opinion that the plaintiffs are entitled to recover in this form of action, then judgment to be entered in tlieir favor, and damages assessed at $5051.26. Otherwise, judgment to be entered for the defendant. Either party to be at liberty to take a writ of error to the judgment of the court upon this case stated.
    On March 20th 1880, the court below entered judgment for the plaintiffs, for $5051.26, Ludlow, P. J., delivering the following opinion:
    “ The facts of this cause may be briefly stated as follows: In 1867, the defendant, then recorder of deeds in this county, certified that certain premises were free from encumbrance. On the faith of this certificate, the plaintiff' advanced a large sum of money upon mortgage of the premises specified in the search, and from 1867 to 1878 the owner of the property concealed from the plaintiff a knowledge of the existence of an encumbrance, of course prior in date to that of the plaintiff, and the discovery of this prior encumbrance was, not made until 1878, when the holder of that mortgage foreclosed -it.
    “A loss has occurred, and the question now to be decided is this, can the recorder of deeds now be made liable for this mistake?
    “ This question can be answered, when we discover whether, in an action on the case like this, the Statute of Limitations applies. If it does, the plaintiffs’ cause is gone; if it does not, the defendant is liable.
    “ The language of the statute is very broad, and includes as well actions ■upon the case as actions of trespass, quare clausum, fregit, detinue, trover, replevin, &c., &c.: 2 Purd. 930, 931. In the interpretation which we must place upon this statute, much depends upon the legal nature of the duty which devolves upon the recorder of deeds when he signs, seals and delivers his certificate of search. That duty has been clearly defined by Agnew, J., in Commonwealth v. Harmer, 6 Phila. R. 90, wdrere it was held, that the official responsibility of the officer rests ‘ not simply upon the evidence the certificate affords, but the duty it involves.’ And again, ‘the officer who makes the search stands, in reference to its correctness, in the attitude of an insurer, and his fee represents the premium.’
    “As the recorder is a public official, he is charged with the performance of special duties, and this action is founded, not upon a breach of contract, but upon official misfeasance, and, therefore, upon a breach of official duty. It is unnecessary to encumber this opinion with a multitude of authorities, to prove that if any contractual relation existed between the parties, an action could not be sustained, because it has many times been decided that the statute begins to run from the date of the breach of contract, and if this were an action of assumpsit, and not case, the same rule would apply.
    “ It has, however, been strenuously contended that the statute in terms includes actions on the case, and therefore the plaintiffs .must be defeated. It is admitted that a mere change in the form of the action will not defeat the statute. That was recently decided in Wickersham v. Lee, No. 2, 2 Norris 425, where it was held, ‘ that the cause of action, rather than the form, determines the applicability of the statute.’
    “ If this cause of action did not, as we think, arise from any breach of contract (see McCarahar v. Commonwealth, 5 W. & S. 25), then it arose either at the time the official duty was performed, or when the damage caused' by the falsity of the certificate was developed. When the officer gave his certificate in 1867, it was well argued that no injury had accrued, and non constat that it ever would, for the owner might pay off the first mortgage, or the ■ plaintiffs’ encumbrance, or the present plaintiffs might assign their mortgage, or the property might pay every encumbrance in full. The very object of the certificate was, so to speak, to insure the plaintiff, and it would be manifestly unjust to hold the defendant harmless by reason of the application of a legal principle, which might destroy the very purpose for which the certificate had been given. It must also be remembered that this action is not for giving a false certificate, but for injury happening by reason of its falsity. When did this injury occur ? Clearly when the fraud of the owner of the property was discovered, and not when the certificate was delivered. If we are correct in this view of the case, then the cause of this particular action did not arise until recently, and until the right of action is complete the statute does not begin to run: Wickersham v. Russell, 1 P. F. Smith 71.
    “ While the authorities here and elsewhere are somewhat conflicting, yet the principles announced by our Supreme Court, in Campbell v. Boggs, 12 Wright 524, and Hanna v. Holton, 28 P. F. Smith 334, clearly rule this cause. In Campbell v. Boggs, it was decided that ‘ actions of contract do not wait on consequences, but attach to the breach; but actions on the case, for consequential damages, are not- to be brought until the damages are developed.’ In Hanna v. Holton, the same principle was settled; by the kindness of counsel the paper-hooks, containing the able arguments submitted to the Supreme Court, have been handed to us, and have been attentively considered, and we are unable to distinguish this cause from that.
    “ The real injury in this case was not developed, and therefore was not complete, until within the time specified by the statute, and to plead it in bar of this action is to do a vain thing.
    “ Judgment for plaintiff on case stated, and damages assessed at §5051.26.’
    The defendant took this writ of error, assigning for error the entry of judgment for plaintiff’.

      George Northrop, for plaintiff in error.
    This is not a suit on the official bond of the recorder, but an action on the case, for a merely negligent act. It is admitted that there was no fraud by the recorder. The Statute of Limitations, by its terms, runs from the time when the cause of action was complete, and the vital question here is, when did the cause of action accrue ? Our Statute of Limitations is identical with the English Statute of James ; and the leading case of Howell v. Young, 5 B. & C. 259, which is on all fours with this case, settled the construction that, in the absence of fraud, the statute begins to run from the date of the negligence or other breach of duty, and not merely from the consequences or discovery of it. This case has been followed in the Pennsylvania and United States decisions: Wilcox v. Executors of Plummer, 4 Pet. 172; Miller v. Wilson, 12 Harris 121; Glenn v. Cuttle, 2 Grant 275; Campbell v. Boggs, 12 Wright 524; Barton v. Dickens, Id. 523; Marsteller v. Marsteller, 37 Leg. Int. 414; Moore v. Juvenal, 11 Norris 484. The statute runs from the time of the negligent act. though it was altogether problematical whether the plaintiff would ever sustain any damage: Wilcox v. Executors of Plummer, supra. In Hanna v. Holton, 28 P. F. Smith 334, relied on by the plaintiff and the court below, the decision was based on the fact that the defendant’s duty was a continuing one, the neglect of which was not complete, and therefore the cause of action did not accrue until within six years of suit brought.
    As to the form of action. Actions on the case are divided into two kinds: 1. Where either assumpsit or case would lie, in other words, where the action sounds in contract. 2. Where it sounds in tort, and either trespass or case would lie. In the first class, within which this case falls, there is no distinction in the law as to the running of the statute, except in cases of fraud. It is immaterial whether the action be assumpsit, debt or case, the statute is equally a bar, and begins to run from the same period, viz., the date of the. negligent act. The plaintiff, by choosing a particular form of action, cannot take from the defendant his substantial protection of the statute. It is the cause of action, not the form, which determines the applicability of the statute: Downey v. Gerrard, 12 Harris 53; Wickersham v. Lee, No. 2, 2 Norris 426. The distinction attempted to be drawn between assumpsit and case, in respect to the statute, is without authority. The few dicta apparently in favor of it occur in cases of assumpsit. No precedent can be found that, in the absence of fraud, knowledge on the part of the plaintiff is necessary to set the Statute of Limitations running. To make it so would be to alter the statute.
    The absence or prevention of knowledge on the part of the plaintiffs was caused solely by the fraud of a third party, whose act cannot alter the application of the law as to privies. The plaintiff has his action against the fraudulent third party, the recorder has not. The cause of action against the recorder was complete when the certificate was given.

      Wm. Henry Hawle, for the defendant in error.
    Statutes of limitation are to afford repose by barring stale claims, which the parties have had full opportunity to sue for, but have omitted so to do. Hence, until the cause of the particular action which the defendant sets up the statute to bar has arisen — until the right is complete to institute that action — the statute does not begin to run: Cooley on Constitutional Limitations *336; Wickersham v. Russell, 1 P. F. Smith 71, 74; Marsteller v. Marsteller, 37 Leg. Int. 414.
    This action is for an injury happening in 1878, by reason of a false certificate of search given in 1867 by the defendant in his official capacity. It is not for breach of contract, nor for giving a false certificate. The very object of the certificate was to relieve the party who received and paid for it from the duty of inquiry, hence the plaintiffs, in relying on it, were guilty of no laches. Until 1878, they not only had no knowledge of its falsity, but were in fact not injured. Non constat that they ever would be injured, for (1.) The owner might pay off the first mortgage; (2.) He might pay off our mortgage; (3.) We might assign our mortgage; or, (4.) The property might bring enough at sheriff’s sale to cover both mortgages. Until the injury, the defendant was not liable for damages, and until the knowledge we had no right of action. Hence, the action is not for giving a false certificate, but for the injury caused by its falsity. The recorder’s official duty is to give true searches for a stipulated fee; his bond is, by the Act of 1775, to indemnify parties who shall be damnified ; lie stands, by effect of the statute, in the attitude of insurer, not a mere party to a private contract entered into at his option; and ho is not liable in damages until loss occurs.
    The distinction is marked between torts arising out of breach of contract between private parties, and those arising from official misfeasance. In the former, full prospective damages can be recovered immediately from the breach ; in the latter, the statutory cause of action occurs when the damage is developed, and the official is only liable for actual damages suffered. If a sheriff falsely returns a summons nihil habet, and the defendant voluntarily appears, there is a breach of duty, but no right of action for the false return. The attorney cases, relied on by plaintiff' in error, were in assumpsit, and are not applicable to actions in case against public officials ; moreover, they were decided on the ground of lack of diligence in the client, in not inquiring, &c.: Hanna v. Holton, 28 P. F. Smith 334; Kimball v. Connolly, 3 Keyes 57; Planck v. Anderson, 5 Term Rep. 37; Williams v. Mostyn, 4 Mees. & Wells. 145; Bank v. Waterman, 26 Conn. 324; McCaraher v. Commonwealth, 5 W. & S. 25; Ziegler v. Commonwealth, 2 Jones 227; Commonwealth v. Harmer, 6 Phila. R. 90; Siewers v. Commonwealth, 6 W. N. C. 17; Rhines v. Evans, 16 P. F. Smith 194; Howell v. Young, 5 Barn. & Cres. 259; Lytle v. Mehaffy, 8 Watts 267 ; Angell on Limitations, § 129; Harriman v. Wilkins, 20 Me. 97; Newbert v. Cunningham, 50 Id. 231.
    In actions upon the case for consequential injuries, the Statute of Limitations only commences to run from the time the damage is developed: Hanna v. Holton, 28 P. F.Smith 334; Campbell v. Boggs, 12 Wright 524; Wheatly v. Baugh, 1 Casey 534; Whitehouse v. Fellowes, 10 Com. Bench, N. S., 765; Ludlow v. Hudson River Co., 6 Lansing 133; Hancock v. Wilhoite, 1 Duvall 313; Polly v. McCall, 37 Ala. 20; Thornton v. Turner, 11 Minn. 336; Foster v. Marsh, 25 Iowa 300; Angell on Limitations, § 304.
    The result of a different view being taken by this court will be to require mortgagees to renew their searches every six years, and the profession has never deemed that necessary since the passage of the recording act.
   Mr. Justice Gordon

delivered the opinion of the court, January 31st 1881.

This case may be certainly and readily determined by mere attention to, and following of the language of the Act of March 27th 1713, which prescribes, inter alia, “ That all actions of account and upon the case shall be commenced, and sued within six years next after the cause of such actions and suits, and not after.” The action now in hand is “upon the case,” brought by the plaintiff against the defendant, for the recovery of damages alleged to have resulted from a false certificate of search issued by him, when recorder of deeds of the county of Philadelphia, to the plaintiff.

As fraud is not charged against the defendant, the case is not complicated by that element, and the action is founded on negligence alone. Under the statute then, the question is, "What was the cause of action, and when did it arise ? Undoubtedly the cause was the issuing the false certificate, and the right of action accrued to the plaintiff just as soon as it parted with its money on the faith it, and, as a consequence, from that period, the statute began to run. But, answers the counsel for the plaintiff, non constat, that there was at that time any special damage. This may be true; but special damage is a result, not a cause, and, as was said in Howell v. Young, 5 B. & C. 259, the gist of the action being the misconduct of the defendant, omitting wholly the allegation of special damage, the plaintiff would, nevertheless, be entitled to nominal damages. And, in this same case, it was held, that special damages, resulting from a breach of duty, do not constitute a fresh ground of action, but are merely the measure of the injury resulting from the original cause. This same doctrine was held in Wilcox v. Plummer’s Ex’rs., 4 Pet. 172, which was an action for a loss resulting from the neglect or unskilful conduct of an attorney; also in the Bank of Utica v. Childs, 6 Cowen 245, where the action was founded on the default of a notary, in not giving notice of the non-payment of a promissory note; in Miller v. Adams, 16 Mass. 456, where the suit was against a deputy-sheriff, for a breach of official duty in making a defective return to an original writ. In our own court, we have this very doctrine re-stated by our brother, Mr. Justice Sterrett, only about one year ago, in Moore v. Juvenal, 11 Norris 484, which was a suit brought to recover damages, arising from the negligence of an attorney in prosecuting a claim. To the same purpose are Campbell’s Adm’rs v. Boggs, 12 Wright 524; Downing v. Gerrard, and Miller v. Wilson, 12 Harris 52, 114. All these authorities, and many more which might be cited, only serve to illustrate that which the statute of itself makes plain enough; namely, that the commencement of the limitation is contemporaneous with the origin of the cause of action.

And we see also, from the cases cited, that the distinction which the counsel for the plaintiff has attempted to draw, between torts arising from contracts and those which arise from official misfeasance, cannot be sustained. Such a distinction is not found in the statute, and it is clearly opposed to reason; for why should a duty imposed by the legislature be obligatory, rather than one which is voluntarily assumed ? Nay, a man might the rather be excused from the performance of an obligation forced upon him, than from one which, of his own will, ho took upon himself. Indeed, the two become equal, and all distinction disappears, only, when we consider that the statutory duty is assumed as part of the office which the incumbent undertakes to fulfil. Moreover, the officer having thus assumed the duty, and being paid •therefor by the party who requires its performance, the transaction, to all intents and purposes, becomes a personal contract, as much so as though it were wholly voluntary, and not statutory.

The judgment of the court below is now reversed and set aside, and it is ordered that judgment be entered, on the case stated, for the defendant, with costs.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    The Germantown Passenger Railway Company versus Walling.
    1. It is not contributory negligence per se for a passenger to ride on the step of the front platform of a crowded street railway car, with the assent of the conductor or driver. In such case the measure of duty on the part of the passenger is ordinary and reasonable care, and what that is, in any given case, and whether the passenger complied with it, is a question for the jury.
    2. AVhere the admitted facts, or the proofs adduced by a party clearly show contributory negligence by him, it is the duty of the court to withhold the question from the jury, and determine it as a matter of law ; but when the measure of duty is ordinary and reasonable care, and the standard shifts with the circumstances of the case, negligence is always a question for the jury-
    3. AVhore specific instructions were not requested by a proper point, and no exceptions were taken to such as were given, there is no error raised on the record for correction.
    4. W. hailed a crowded passenger car and the driver stopped. Being unable to get on the rear platform by reason of the crowd, lie went to the front platform, which was also crowded, but succeeded in standing on the step, on which there were already two persons, by bolding on to the handrails at the side. In turning a curve several passengers pushed against W., breaking his hold, when ho fell under the wheel and was killed. In an action by bis widow against the company for damages, Held (affirming the judgment of the court below), that the question whether the deceased was guilty of contributory negligence was properly submitted to the jury,
    January 7th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trtjnkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1880, No. 336.

      Case, by Jane R. Walling and Joshua Clendennon, guardian of Grace M. Walling, against the Germantown Passenger Railway Company, to recover damages for the death of Bernard Walling, 'the husband and father of the plaintiffs, which they alleged to have been caused by the negligence of the defendants’ servants.
    On the trial, before Mitchell, J., the evidence disclosed the following facts : About eight o’clock, on the morning of October 2d 1876, Bernard Walling, a man thirty-three years of age, hailed a car of the defendant company, at Girard avenue and Nineteenth street, for the purpose of going to the Centennial exhibition. The car stopped, but owing to its crowded condition he was unable to get on the rear platform. He went to the front platform, which was also crowded, and took his position on the step, by squeezing in between two men, holding on by one hand to the dasher and by the other to the iron bar under the front window. In passing from Girard avenue into Poplar street — which streets form an angle of about 135 degrees — a curve is formed in the track and the grade descends beyond the curve. In rounding the curve, several passengers were pushed against Walling, either by the jar of turning, or by a tinsmith who was trying to get off, with his box, or by both, breaking his right hand hold, and swinging him round in front of the dasher, in which position he was carried a short distance, when he fell in front of the wheel, which passed over his chest and killed him. Several other passengers fell off' at the time of the accident. Before the car reached the curve, the driver and several passengers called out to hold on. The evidence as to the speed of the car in turning the curve was conflicting. There was some conflicting evidence also as to the condition of the track at the curve, but it was not disputed that it had been relaid a short time previously.
    The only evidence on the question of the measure of damages was that of the plaintiff, Jane Walling, who testified as follows: “My husband was thirty-three years of age at the time of his death. He had been a fruit grower — unfortunate by fire, and afterwards the grasshoppers destroyed crops. Was engaged in restaurant at Centennial. The business was to begin that morning. Had formed a partnership with Mr. Whitney.”
    The defendant submitted the following points:
    1. The jury must find for the defendant on the evidence.
    2. If the jury believe that Bernard Walling, husband of the plaintiff, Jane R. Walling, in violation of a rule of the defendant company, forbidding passengers to get on or ride on the front platform of their cars, and brought to his knowledge by notices posted in conspicuous places on the car on which he was .riding, got on and rode on the front platform of the car, and that his death resulted from the position occupied by him in violation of said rule, the plaintiff cannot recover.

      8. As the plaintiff’s own evidence shows that Bernard Walling, husband of the plaintiff, Jane R. Walling, got on the front platform of the car and stood while the car was in motion, with one foot on the step of the platform, and that the platform was so crowded that it was necessary for him to hold with one hand to the dasher, and the other to the iron bar under the window of the car in order to retain his position on the car, and that his occupancy of this position in this manner was a contributing cause of his death, the plaintiff cannot recover.
    4. If the jury believe that Bernard Walling, husband of the plaintiff, Jane R. Walling, got on the front platform of the car and stood while the car was in motion, with one foot on the step of the platform, and that the platform was so crowded that it was necessary for him to hold with one hand to the dasher and with the other to the iron bar under the window of the car, in order to retain his position on the car, and that his occupancy of this position in this manner was a contributing causo of his death, the plaintiff cannot recover.
    5. The plaintiff’s own evidence showing that the death of Bernard Walling, husband of the plaintiff, Jane R. Walling, resulted from the jolt of the car concurring with the crowded condition of the front platform of the car, and that Bernard Walling contributed to the crowding of the platform, the plaintiff cannot recover.
    6. If the jury believe that the death of Bernard Walling, husband of the plaintiff, Jane R. Walling, resulted from the jolt of the car concurring with the crowded condition of the front platform of the car, and that Bernard Walling contributed to the crowding of the platform, the plaintiff cannot recover.
    7. If Bernard Walling, husband of the plaintiff, Jane R. Walling, lost his balance and fell from the car through the act of the passenger in getting off the car, the plaintiff cannot recover.
    8. If at the time Bernard Walling, husband of the plaintiff, Jane R. Walling, got on the car, and the jury believe there was standing room either on the rear platform or inside the car, and that Bernard Walling, notwithstanding, took a position on the lower step of the front platform, and that the occupancy of such position, even though concurring with the jolting of the car caused his death, the plaintiff cannot recover.
    The court declined to answer these points, except as answered in the general charge, and charged the jury, inter alia, as follows :
    “ The foundation of this action is the negligence of the defendant company, and, therefore, before the plaintiff' is entitled to recover, you must be satisfied that the injury of which she complains resulted from the fault or negligence of the defendant, and not from the joint negligence of the defendant and Mr. Walling himself, still less from the negligence or fault of any third person, such as the tinsmith, of whom you have heard. •
    “ I should, perhaps, give you a still further caution in regard to what is called in law contributory negligence, which means that the accident resulted from the joint fault or negligence of the company and Mr. Walling.
    “Now, it is the duty of the carriers of passengers, such as the horse-car companies, or any other carrying company, such as railroad companies, to take the highest possible care of their passengers which the circumstances permit; and when they allow a passenger to get on at an unusual place, that is an assurance to him that he will be taken care of, and that they will guard him against accident as far as rhe circumstances will permit. On the other hand, it is the duty of the passenger to go into the proper, usual and safe place, if it is possible to do so. When Mr. Walling, therefore, stopped the car at Nineteenth street, it was his duty to get inside the car if he could, and, if not, to take a place on the rear platform as the next best place, and not until he failed to get into the car or on the rear platform would he have been justified in going to the unusual and somewhat dangerous place of the front platform. If, however, as I have said, he could not get in the body of rhe car, or could not get upon the rear platform, and he was permitted to go upon the front platform, then he had a right to take that as an assurance that the company would take all reasonable and proper precautions to avoid injury to him even in that place.
    “As I have said, .the testimony is that at Nineteenth street Mr. Walling stopped the car, and the testimony of some of the witnesses is that he went toward the rear platform, and then came forward and tried to get on the front platform. It is for you to say whether there is sufficient evidence to show that he could not get on the rear platform. If so, then he was justified in getting upon the front. He did not succeed in getting upon the front platform, however, but he only got upon the step upon the left-hand side of the car as it was going out, and he there held on with one hand by the rail under the window in front of the car, and with the other to the iron of the dasher.” * * *
    “ Upon the cause of the accident, it is for you to consider all the evidence on it — the condition of the car, the speed at which it was going, the fact of the turning of the curve, whether or not there was any jolt, and to what extent it influenced the accident, the action of the tinsmith and all the other facts in the cause, to make up your minds according to the best judgment upon all of the facts as to what was the cause of the accident. If you find it was through the negligence or fault of the defendant company, then you will find a verdict here for the plaintiff; but if you find it was not from the defendant’s negligence, or if it was by the joint negligence of defendant and Mr. Walling himself, then no matter how unfortunate the accident may have been in its results to the plaintiff, the defendant cannot honestly and legally be compelled to pay for it.
    “As you find in one or the other way, you will find a verdict either for the plaintiff or defendant. If you find a verdict for the plaintiff upon the grounds that I have stated, you would then have to consider the question of damages. That, as has been said to you by counsel for plaintiff, is allowed by law to be damages simply for pecuniary loss. Injuries to feelings and suffering by the deprival of companionship are not capable of compensation in money. The law does not undertake to place an estimate upon these considerations; but the law does permit, where the loss has resulted from the negligence of defendant, that the plaintiff' shall be put in as reasonable and, as nearly as may be, in the same pecuniary condition that she would have been had no such accident occurred.”
    Verdict and judgment for the plaintiff's for $5000. The defendant took this writ, assigning for error the refusal of the court to affirm the first, third, fourth, fifth and sixth points above set forth.

      C. H. Gross (with him T. J. Barger), for plaintiff in error.
    The undisputed facts, and the evidence adduced by the plaintiff, show that the deceased was guilty of contributory negligence, per se, and the court should have affirmed our points to that effect: City of Harrisburg v. Sayler, 6 Norris 216; McKee v. Bidwell, 24 P. F. Smith 218; Pennsylvania Railroad Co. v. Werner, 6 W. N. C. 520; Passenger Railway Co. v. Boudrou, 11 Norris 475; Pittsburgh & Connellsville Railroad Co. v. McClurg, 6 P. F. Smith 294; West Chester & Philadelphia Railroad Co. v. McElwee, 17 Id. 311; Willis v. Long Island Railroad Co., 32 Barb. 398.
    The evidence of damage was too vague, under the requirements of the Act of April 4th 1868, Pamph. L. 58, to justify the verdict of $5000 for plaintiffs. That act provides, that m actions against railroad corporations for personal injuries or loss of life, the defendant shall only be liable for such damage “ as the evidence shall clearly prove to have been pecuniarily suffered, not exceeding,” &c. The object of the act was to curb the tendency of juries to find large verdicts against railroad companies, upon little or no evidence. There was no evidence here of the pecuniary loss, actual or probable, suffered by the plaintiffs.

      Richard P. White, for defendants in error.
    The negligence of the defendant company is settled by the verdict. The only question is, was the deceased guilty of contributory negligence per se ? When a carrier receives a passenger, the latter is justified in taking such place in the conveyance as may be available. The public cannot be required at their peril, to examine into the sufficiency and safety of the accommodations offered them. During the Centennial exhibition, it was the universal practice of passenger railway companies to over-crowd their cars, and to receive passengers on the platforms and steps. That riding on the front platform of a horse-car is not negligence per se, but is a question for the jury, has been decided in several New York and Massachusetts cases: Ginna v. Second Avenue Railroad Co., 8 Hun 494; Meesel v. Railroad Co., 8 Allen 234; Wilton v. Railroad Co., 107 Mass. 108; Maguire v. Railroad Co., 115 Id. 239; Burns v. Railroad Co., 50 Mo. 140.
    On the question of damage, there was more evidence in this case than was thought sufficient in Railroad Co. v. White, 7 Norris 327. But the portion of the charge relating to this subject was not assigned for error; there was no point submitted and no exception taken.
   Mr. Justice Trunkey

delivered the opinion of the court, January 24th 1881.

At the outset the defendant (plaintiff in error) claims but two questions are presented in the assignments: (1.) Was Bernard Walling guilty of contributory negligence per se, so as to make it the duty of the court below 'to instruct the jury that he could not recover ? And (2.) was the evidence of damage too vague under the requirements of the Act of April 4th 1868, to justify a verdict for the plaintiffs below ?

In fact, the second question is not raised in the record. As a general rule, where specific instructions were not requested by a proper point, and no exception to such as were given, there is no error for correction. Complaint is not now made of the charge respecting damages; the only errors alleged are the refusal of the defendant’s points, and they were upon another branch of the case. Surely if the decedent.’s death, without fault in him, was caused by the defendant’s default, the plaintiffs were entitled to recover. In a charge of marked accuracy and fairness the questions of defendant’s negligence and of the decedent’s concurrent negligence were submitted.to the jury. It is not pretended that the court could have refused to submit to ■ them to decide whether the defendant was negligent, and it is conceded that fact is settled by the verdict. If it was the duty of the court to determine there was contributory negligence by the decedent, all the defendant’s points should have been affirmed. This is the sole question now for consideration — the one first stated by defendant.

The facts, claimed to reveal want of due care in the decedent, are not in dispute. “ He voluntarily got upon a car so crowded that he was obliged to take a position on the step of the front platform of the car, occupied at the time by two other men, between whom he squeezed into a position, where, for the purpose of retaining his place, he was obliged to hold fast with one hand to the dasher and the other to the iron bar, under the window of the car:” so says the defendant. In addition, the car stopped and received him as a passenger. The driver testifies he knew the car was so full a man could not go through to the back platform. Crowded as it was, the conductor says there was room for more, both inside and on the rear platform. But Walling first tried to get on the rear platform, and failing went to the front.

Conductor, driver and passengers acted as if there was room, so long as a man could find a rest for his feet and a place to hold on with his hands. Nor was that action exceptional. Notoriously, it was very common in 1876, and, perhaps, is not infrequent at this day. The companies do not consider such practice dangerous, for they knowingly suffer it, and are parties to it. Their cars stop for passengers when none but experienced conductors could see a footing inside or out. The risk in travelling at the rate of six miles an hour is not that when the rate is sixty, or oven thirty. An act which would strike all minds as gross carelessness in a passenger on a train drawn by steam-power, might be prudent if done on a horse-car. Rules prescribed for observance of passengers on steam railroads, which run their trains at great speed, are very different from those on street railways. In absence of express rules, every passenger knows that what might bo consistent with safety on one would be extremely hazardous on the other.

Street railway companies have all along considered their platforms a place of safety, and so have the public. Shall the court say that riding on a platform is so dangerous, that one who pays for standing there can recover nothing for an injury arising from the company’s default ?

Meesel v. Lynn & Boston Railroad Co., 8 Allen (Mass.) 234, was a case much like this in its facts. The court said: “ It is well known that the highest speed of a horse railroad car is very moderate, and the driver easily controls it, and stops the car by means of his voice, his reins, and his brake. In turning round an angle, from one street to another, passengers are not required to expect that he will drive at a rapid rate, but, on the contrary, might reasonably expect a careful driver to slacken his speed. The seats inside are not the only places where the managers expect passengers to remain; but it is notorious that they stop habitually to receive passengers to stand inside, till the car is full, and then to stand on the platforms till they are full, and continue to stop and receive them, even after there is no place to stand except on the steps of the platforms. Neither the officers of these corporations, nor the managers of the cai-s, nor the travelling public seem to regard this practice as hazardous; nor does experience, thus far, seem to require that it should be restrained on account of its danger. There is, therefore, no basis upon which the court can decide, upon the evidence reported, that the plaintiff did not use ordinary care. It was a proper case to be submitted to the jury upon the special circumstances which appeared in evidence.” These remarks are quite applicable to the case in hand.

Standing on the front platform of a horse-car when there is room inside, is not conclusive evidence that the person injured by the driver’s default was not exercising due care: Maguire v. Middlesex Railroad Co., 115 Mass. 239. A street railway company has the right to carry passengers on the platforms, and, if a passenger be injured while standing there without objection by the company’s agent, whether the injury was with his contributory negligence is for the jury to decide, under all the facts and circumstances detailed in evidence: Burns v. Bellefontaine Railway Co. of St. Louis, 60 Mo. 139.

It also has been decided in other states, that, if a passenger be injured while standing on the platform of a street or horse-car, the question of his contributory negligence is one of fact for the jury.

So little danger exists in riding on the platforms, accidents to passengers while thus riding are so- rare, that this is the first time the question raised has been presented in Pennsylvania, We think the decisions in other states above referred to are sound. They accord with well-settled principles. What is and what is not negligence, in a particular case, is generally a question for the jury, and not for the court. It is a-lways a question for the jury when the measure of duty is ordinary and reasonable care. When the standard shifts with the circumstances of the case, it is, in its very nature, incapable of being determined as a matter of law. When both the duty and the measure of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proven: West Chester & Philadelphia Railroad Co. v. McElwee, 17 P. F. Smith 311.

It is the duty of courts, in cases of clear negligence arising' from an obvious disregard of duty and safety, to determine it as a question of law. This principle was applied in the numerous cases cited by defendant. It should always be when the admitted facts, or the proofs adduced by a party, conclusively show his negligence.

The undisputed facts in this case show, that the measure of duty on the part of the deceased was ordinary and reasonable care, and what that was, and whether he complied with it, could only be determined by the jury.

Judgment affirmed.


text:
    Verrier versus Guillou, Executor, &c.

    1. The receipt of an account by a debtor without objection makes it prima facie evidence of the claim, but it does not, without more, estop the debtor from pleading the Statute of Limitations.
    2. A., on August 6th 1868, agreed in writing to pay B. a sum of money in August 1870; immediately afterwards A. presented to B. an account of moneys previously advanced by him to B., or to B.’s use. On February 2d 1869, A. wrote to B., in answer to a letter received from him, stating that he preferred to give no reply, and that he placed his papers in the hands of counsel; also calling B.’s attention to the fact that he seemed to have forgotten that A. had paid him certain amounts. In August 1870 B.’s counsel wrote to A.’s counsel, demanding payment of the full sum due from A. to B. by the terms of the agreement in writing. A.'s counsel answered that A. would pay the amount, less the sums paid by A. to and for B., as appeared by the account theretofore furnished. B.’s counsel replied, declining the offer. In an action brought on March 6th 1875, by B. against A., to recover the amount due on the instrument in writing : Held, that the rendering of the account by A. to B. had not prevented the Statute of Limitations from running against the same, and that therefore A. could not set up the amount due on the account as a set-off to B.’s claim. Held, further, that there was nothing in A.’s letter to B., or B.’s silence after its reception, which would estop B. from setting up the bar of the Statute of Limitations to A.’s claim of set off. Held, further, that there was nothing in the correspondence between B.’s counsel and A.’s counsel which suspended B.’s right of action, or amounted to a promise by B. to pay the account, or constituted an agreement by him that it should apply as payment on the contract, so as to bar the running of the Statute of Limitations thereon, and enable A. to take advantage of the same as a set off.
    January 10th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1880, No. 250.
    Assumpsit, brought March 6th 1875, by Edmond V. Verrier against Victor Guillou, executor of Florencio J. Verrier, deceased, upon the following instrument (the original of which was in Spanish):
    “This is to certify that Don Florencio J. Verrier and Edmond of the same surname, have agreed upon the following : That according to an instrument of writing legally executed this day, the former binds himself to pay to the latter his lawful patrimony derived from his father and mother, which both parties have mutually fixed at the sum of sixteen thousand dollars, or thirty-two thousand escudos; but inasmuch as a different amount is found in the testamentary settlement of their parents’ estates, they, by special agreement have fixed it at the above-named sum, and Don Edmond agrees to receive the sum of sixteen thousand dollars as follows ; Ten thousand dollars, or twenty thousand escudos, which he admits having received in cash in current money to his entire satisfaction, setting aside all legal forms in the matter. The balanee of six thousand dollars or twelve thousand escudos, Don Edmond is to receive in August 1870. Don Florencio binds himself by this agreement, and promises to pay the above-named sum of six thousand dollars or twelve thousand escudos to his brother Edmond in August 1870, in the city of Philadelphia, and-in conformity herewith they sign two instruments of the same tenor in the city of Matanzas, the sixth day of August 1868. Nota, it is understood that Don Florencio will pay the above-named six thousand dollars in gold or silver or its equivalent in paper money on the date as above. Florencio J. Yerrier.”
    The plaintiff claimed to recover $9168.82, in gold, being the sum of $6000 due by the above contract in August 1870, with interest thereon. .
    The defendant pleaded non assumpsit, payment with leave, set off; and a special plea of set off, averring that the plaintiff was indebted to the defendant’s testator in a large sum (the items of which were set forth in the plea) for moneys paid to the plaintiff’s use at various dates from May 21st 1863, to August 12th 1868.
    ■ The sums, with the exception of the last (August 12th 1868, $537.70), were paid before the date of the contract sued upon, and all were paid more than six years before this suit was brought.
    The plaintiff replied non solvit, no set off and issue; and to the special plea of set off the plaintiff set up the Statute of Limitations.
    On the trial, before Allison, P. J., the plaintiff gave in evidence the instrument sued on, and rested. The defendant gave in evidence an account rendered by decedent to plaintiff August 1st 1868, of which the following is an abstract, giving dates and amounts:
    Edmund Y. Yerrier to F. J. Yerrier, Dr.
    1863. May 21st, Paid,......$12.00
    1864. July— “...... 61.00
    “ “ Use of oxen and carts, . . 52.50
    1867. May 7th, Paid,...... 5.61
    “ Aug. 26th, “......56.00
    “ ■ Sept. 9th, Check No. 5, $600, his one-half, trip to Philadelphia, . . 300.00
    “ Oct.. 23d, Remitted, ..... 180.00
    “ “ 25th, Check No. 8, . . . . 680.00
    “ Nov. 30th, Paid,...... 8.20
    “ Dec. 6th, Check No. 14, $1029.06, testamentary expenses, his one-ninth, . 114.34
    “ “ 14th, Paid, . ... . . . 32.10

      1868. Jan. 20th, Check, . 208.67
    “ Feb. 27th, Check No. 18, §1108.30, testamentary expenses, his ono-ninth, 123.14
    “ July 22d, Paid legal services, his onc-ninth, . 56.66
    “ Aug. 5th, Total of testamentary expenses, §6655.50, F. paid one-half ($3827.75) his one-ninth, . 369.75
    “ “ 8th, Check No. 5, bills paid for his account, as per his account, . . 537.70
    §3,697.67
    The defendant gave in evidence the following letter:
    Philadelphia, February 2d 1869.
    Mr. E. Verrier, Philadelphia.
    Your letter of the 28th ult. is so characteristic that I prefer giving it no reply. I place all the papers in the hands of Mr. Guillou, who will see Mr. Biddle.
    It would seem that you have forgotten that on September 9th 1867, 1 paid you ...... §600.00
    Oct. 28th 1867,'...... 680.00
    Aug. 5th 1868, your share of testamentary expenses, as per receipt of Esunbanio Pomental, 494.00
    And on August 12th 1868, for your various
    bills &c., of Antonia’s ($56), . . . 521.00
    Total,......§2295.00
    Yours, &c.,
    Florencio J. Verrier.
    The defendant also gave in evidence certain correspondence between counsel, of which the following is an abstract:
    1. October 18th 1870. Chapman Biddle, Esq., attorney for Edmond V. Verrier, to C. Guillou, Esq., attorney for F. J. Verrier, demanding payment of the §6000 in gold,"due August 1st 1870, with interest.
    2. October 19th 1870. Mr. Guillou to Mr. Biddle, requesting to be informed of nature and ground of claim.
    3. October 19th 1870. Mr. Biddle to Mr. Guillou. “The claim of Mr. Edmond V. Verrier is for the balance of the purchase-money due him for his share of Sta. Victoria, and for which Mr. F. J. Verrier gave his bond.”
    4. October 20th 1870. Mr. Guillou to Mr. Biddle. Offers on behalf of F. J. Verrier to pay the balance of the purchase-money, §6000, upon “ reduction being made therefrom of the various sums paid by Florencio to and for Edmond at the latter’s request, of which statements have heretofore been furnished him.”
    5. October 21st 1870. Mr. Biddle to Mr. Guillou. Declines offer.
    The judge instructed the jury to find for the plaintiff, reserving the point whether upon the evidence, the defendant was entitled in point of law to the set off claimed by him.
    Verdict for the plaintiff accordingly, for $9163.92, subject to the point reserved. The court, subsequently, in an opinion by Allison, P. J., entered judgment on the point reserved in favor of the plaintiff, for $6018.98. This sum was arrived at on* the following basis: The items in the account pleaded as set off were allowed, so far only as corroborated by the corresponding items in the letter of February 2d 1869, from F. J. Verrier to the plaintiff, together with interest on said items from their respective dates to August 31st 1870, when the sum agreed on in the contract became due. This sum was deducted, as a set off, from the $6000 due by the contract, and interest was allowed on the balance to the date of entering judgment.
    The plaintiff took this writ of error, assigning for error (1, 2, 3), that the court erred in entering judgment on the point reserved, when the record does not show a special verdict finding the facts, or case stated, nor w’hat question of law was reserved; (4 to 7), that the court erred in deciding, that the alleged payments by decedent in his lifetime, to the plaintiff, could be set off; that plaintiff is estopped from setting up the bar of the Statute of Limitations against defendant’s claim of set-off; and in entering judgment for $6013.98.

      J. Percy Keating and John Samuel, for the plaintiff in error.
    The court erred in reserving a question of law, when there was no special verdict, or case stated, finding the facts. Nor does the record show'what the reserved question of law w»as.
    [Sharswood, C. J. — Was any exception taken below to such action of the court ?]
    No; but it has been repeatedly ruled by this court, that this practice presents nothing for adjudication and is erroneous. This court has reversed for this reason alone, although agreeing in opinion with the court below: Ferguson v. Wright, 11 P. F. Smith 258; Miller v. Bedford, 5 Norris 457; Clark v. Wilder, 1 Casey 314; Irwin v. Wickersham, Id. 316; Wilson v. Tuscarora, Id. 317.
    The doctrine of equitable estoppel in pais has no application to this case. The court below held, that the plaintiff’s silence after receiving the account of August 12th 1868, and the letter of February 2d 1869, estopped him from denying the payments on account of the contract sued on. That there was no positive evidence of denial by plaintiff is, because he was not a competent witness to testify to such denial. But the letter of February 2d 1869, contains evidence in itself, that the account had been objected to by the plaintiff Florencio says, in reply to a letter from plaintiff, which evidently did not admit the set off, “ It would seem that you have forgotten that I paid you ” various sums, &c. Moreover the conflicting state of the credits in the letter and in the account, make it impossible to ascertain any definite sum as the “ balance struck ” on an account stated.
    Further, in October 1870, plaintiff’s counsel demanded the full amount of the bond. The plaintiff neither said nor did anything, nor admitted anything, which induced Florencio to act on the supposition that the alleged payments were admitted as credits on the bond; and Florencio did not in any way alter his position by reason thereof.
    But even if the account or letter be treated as an account stated, it was so stated more than six years prior to the bringing of this suit. The plaintiff made no acknowledgment which would give Florencio the right to sue on an implied promise arising out of the account stated, after the expiration of six years. At the expiration of this period he is equally prevented from setting up the payments as a set-off.
    The instrument sued on recites that “ both parties have mutually fixed the plaintiff’s interest at the sum of $16,000, but inasmuch as a different amount is found in the testamentary settlement of their parents’ estates, they by special agreement have fixed it at the above-named sum.” This instrument was therefore in the nature of a compromise, fixing the amount due by Florencio at the date of the agreement, viz., August 6th 1868. Yet all the items of the account, claimed as set off (save one) are prior in date to this agreement, and several of them are for “testamentary expenses” which, it is fair to assume, were included in the “testamentary settlement” referred to in the agreement. They are all more than six years before this suit was brought. No claim of set-off appears to have been made when the agreement was executed and the $10,000 paid. In any aspect of the case, we contend that the Statute of Limitations is a bar to the alleged set-off, and that no silence can create an estoppel which is not strong enough to toll the bar of the statute.
    (No counsel appeared and no paper-book was presented contra.)
   Mr. Justice Trunkey

delivered the opinion of the court, January 24th 1881.

The contract is dated August 6th 1868, recites a transaction on which Edmond J. Verrier had received $10,000, leaving a balance due him of $6000, which sum is agreed to be paid by Florencio to Verrier, in August 1870.

As appears in the bill of' exceptions, in August 1868, Florencio rendered an account to Edmond, containing a number of items amounting to $8797.67. On February 2d 1869, he wrote to Edmond, as follows : “ Your letter of the 28th ult. is so characteristic, that I prefer giving it no reply. I place all the papers in the hands of Mr. Guillou, who will see Mr. Biddle. It would seem that you have forgotten, that on September 9th 1867, I paid you $600, on October 28th 1867, $680, August 5th 1868, your share of testamentary expenses, as per receipt of Esunbanio Pomental, $494; and August 12th 1868 for your various bills, &c., of Antonio’s ($56) $521, total $2295.” In the account, or letter, it is nowhere stated that the money was paid or received to apply on the contract. All the items were anterior to its date, except one, and that was six days posterior; the whole account was two years before the money became due on the contract, and the letter was written a year and a half before. There is no evidence of an agreement that the account should apply as payment. At most, it can only be inferred that the account was correct, because no objections were made within a reasonable time. An account rendered to a party indebted by his creditor, and not objected to in a reasonable time, is prima facie evidence against the party to whom it is rendered. The tone of the letter of February 2d, is not consonant with Florencio’s belief that Edmond had admitted the account correct, by silence, or otherwise! But, for the purposes of this ease, let it be conceded' that he did.

Florencio’s right of action existed at and before the time he rendered the account; it accrued more than six years before he filed the plea of set-off, and more than six years before this suit was commenced. Had he' brought a suit to recover the account, more than six years after the right had accrued, the statute would have been an effectual plea in bar; it is just as effectual when replied to the claim pleaded as set off. Sending the account to Edmond, did not suspend his right to bring suit, or the running of the Statute of Limitations. Mutual demands do not extinguish each other. The letter was written over six years prior to this suit.

Nothing in the correspondence between the counsel for the parties suspended the right of action, or amounted to a promise to pay the account, or constituted an agreement that it should apply as payment on the contract. The mere fact that Mr. Guillou mentioned that statements had been furnished to Edmond, to which Mr. Biddle made no reply, cannot prejudice the client. If it could there would be no safety in placing a claim in the hands of an attorney for collection. There is not a particle of testimony that Mr. Biddle had authority to admit the account, or that he knew anything about it; his business was to collect the money on the contract, and shortly after it became due, he demanded the whole.

The first demand was Mr Biddle’s letter of October 18th 1870. Honce, it is a mistake to say, that when the “ plaintiff first made demand for the payment of the $6000, a detailed statement of the several sums claimed to be of right deducted therefrom, was promptly presented.” There is no proof that the plaintiff demanded the $6000 before it became due. As already observed, the detailed statement was sent immediately after the date of the contract, and not a word therein, nor in the letter of February 2d 1869, shows that the account was claimed as a proper payment in reduction of the principal sum named in the bond. Florencio's last letter was not a request that his claim be applied on an obligation not then due; nor was it a statement that he would so apply it. lie awaited no answer, held the plaintiff at arms’ length, and gave notice that he placed the papers in the hands of his attorney. How could the plaintiff’s silence mislead him ? What word or act did the plaintiff utter or do, tending to induce belief that he would apply the account as payment? As we view the evidence, none whatever. We see no ground for application of the equitable principles of estoppel, so well stated in the opinion of the learned judge of the Common Pleas. We think it very clear, that he did nothing more than receive the account as sent, without returning any objection, and that only made it prima facie evidence against him. It is not pretended, that such an act by a debtor thereafter forever estops him from pleading the statute as a bar. In no sense can it operate as an estoppel. The statute runs from the date the account is rendered, if it be then due, as it would against any other simple contract debt. To avoid the statutory bar, the defendant contends, that the plaintiff’s silence was an admission of the claim of payment ; but no claim of payment on this contract was made; the claim was an account of payments to and for the plaintiff’ only. It is very clear that it is barred, whether the statute runs from the time he made such payments, or from the date he rendered the account.

In this case, there is no difficulty in entering judgment upon the verdict; for there is no evidence to warrant the jury allowing the set off against the bar of the statute. The verdict was subject to the point reserved, whether upon the evidence defendant was entitled in point of law to the set-off claimed by him. Had there been sufficient evidence for submission, this would not be a good reservation of a point: Ferguson v. Wright, 11 P. F. Smith 258; Wilson v. Steamboat Tuscarora, 1 Casey 317.

Judgment reversed, and judgment is now rendered on the verdict in favor of the plaintiff for $9163.92.


author: Mr. Justice Mercur

text:
    Baker versus Fehr et al.
    1. What is negligence and what is ordinary care must be submitted to the jury if there be any dispute or reasonable doubt as to the facts claimed to establish the alleged negligence, or as to the just inferences to be drawn therefrom. If, however, the facts bé admitted or ascertained, it is the province of the court to declare the law thex’eon.
    2. In an action for death or ixxjxxx-y alleged to have been ctxused by the negligence of the defendant’, the burden is upon the plaintiff to- prove that the negligence of the defendant caused the death or injux-y, without contributox-y negligence on the part of the person killed or injured.
    3. Parties lawfully using a public street owe to each other the duty of reasonable and ordinary care, and each is justified in assuming that the other will so act.
    January 12th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trtjnkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1880, No. 360.
    This was an action on the case by the widow and minor children of John Eehr, deceased, against John W. Baker, Jr., to recover damages for the death of the said John Fehr, caused by the alleged negligence ' of one óf defendant’s servants, the driver of an ice-wagon, in running over the said Fehr in a public street of the city of Philadelphia.
    The undisputed facts, as developed on the trial, before Yerkes, J., were as follows: ■
    On the morning of December 2d 1878, about 7 o’clock, the deceased got off the front platform of a passenger car in which he had been riding southward along Sixth street, and which had stopped just south of Walnu-t street. He turned partly round and reached out to take a basket which was on the front platform of the car. At this moment an ice-wagon belonging to the defendant was being driven at a trot along Sixth street in the same direction with the car and nearly abreast with it. As the car stopped, the driver of the wagon was in the act of passing the car, to the imminent danger of the deceased. Several persons called out to warn him of his danger, and the wagon driver instantly shouted “Look out,” an'd endeavored to stop his mules, but without success. The witnesses testified that Fehr appeared not to hear the warning calls, and backed or walked right against one of the mules, when he was caught by the swingle-tree of the ice-wagon, thrown down under the wheels and run over, receiving the injuries which caused his death.
    The testimony of all the material witnesses is referred to in detail in the opinion of this court.
    The defendant presented, inter alia, the following point: “ 8. There is no such evidence of negligence in this case as ought reasonably to satisfy you thereof, and, therefore, I instruct you that upon the whole case your verdict should bo for the defendants.” Refused.
    Verdict for the plaintiffs for $2000 and judgment thereon. The defendant took this writ of error, assigning for error, inter alia, the refusal of the above point.

      Silas W. Pettit (with whom was John R. Read), for the plaintiff in error.
    Where no facts have been shown from which negligence by the defendant causing the accident may reasonably be inferred, the question of negligence should not be submitted to the jury. Whether a given state of facts, admitted or proved, constitutes negligence, is a question of law to be declared by the court: Goshorn v. Smith, 8 W. N. C. 289; Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Railroad Co. v. Stinger, 28 Id. 219; Gerety v. Railroad Co., 31 Id. 274; Hoag v. Railroad Co., 4 Norris 293; Philadelphia & Reading Railroad Co. v. Yerger, 23 P. F. Smith 121; Philadelphia & Reading Railroad Co. v. Heil, 5 W. N. C. 91; Clark v. Philadelphia & Reading Railroad Co., Id. 119; Pennsylvania Railroad Co. v. Fries, Id. 645; Hestonville Passenger Railway Co. v. Connell, 7 Norris 520. In this case the defendant was i-n the lawful use of the highway, driving at a moderate rate of speed, and he had no reason to anticipate that the deceased would suddenly place himself in a position of danger by jumping off the front platform of the car, directly in front of his team. On discovering the danger he hallooed to the deceased and used his utmost endeavors to stop, but the deceased, by his action in stepping against the mules, increased the danger and rendered the accident inevitable. Under the admitted facts, there was no evidence of negligence by the defendant, and the case should not have been submitted to the jury.

      A. S. L. Shields, for the defendant in error, did not appear, and presented no paper-book.
   Mr. Justice Mercur

delivered the opinion of the court, March 28th 1881.

This action was brought by the widow and children of one killed by an unfortunate accident. A right to recover rests on proving that negligence of the plaintiff in error caused the death, without contributory negligence of the person killed. The question now is, whether there w'as sufficient evidence of negligence on the part of the plaintiff in error to justify its submission to the jury.

The burden of proving the negligence is on the defendants in error: McCully v. Clarke & Thaw, 4 Wright 399; Railway Co. v. Hummell, 8 Id. 375; P. & R. Railroad Co. v. Yerger, 23 P. F. Smith 121.

This is not the case of a passenger killed or injured by a common carrier.- Both parties to the accident were in the lawful use of a public street in this city. Each owed substantially the same duty to the other. That duty was to use the street with reasonable and ordinary care. Each was justified in assuming that the other would so use -it. What is negligence and what is ordinary care must generally be submitted to the jury. This is so, if there be any dispute as to the acts claimed to establish the alleged negligence ; but negligence is not to be found without evidence. It is not to be presumed from the mere fact of the occurrence of an accident causing injury or death: Gramlich v. Wurst et al., 5 Norris 74. Negligence is a question for the jury, if there be reasonable doubt as to the facts tending to prove it, or as to the just inferences to be drawn therefrom: McKee v. Bidwell, 24 P. F. Smith 218.

The province of the jury is to find facts. If the facts be admitted or ascertained, it is the duty of the court to declare the law thereon: Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Philada. & Reading Railroad Co. v. Yerger, supra; Goshorn v. Smith, 8 W. N. C. 289.

The main question in this case arises under the seventh assignment. It is whether there was any evidence of negligence on the part of the plaintiff in error to be submitted to the jury ? If there was, no just complaint can be made to the charge of the court.

This leads us to an examination of the evidence. There is no substantial conflict in the testimony of the witnesses. Eehr was a passenger in a street railway car moving down Sixth street; Gerlach was driving an ice-wagon of the plaintiff in error. It was in the rear of the street car, and moving in the same direction, at a rate of from four to six miles an hour. The car stopped just south of Walnut street. The driver of the wagon continued on for the purpose of passing the car. As his mules came opposite the car, Eehr, with a market basket on his arm, got off the front platform. A collision resulted between him and the wagon, causing the injury which resulted in his death.

On the trial, five persons who were eye-witnesses to the transaction testified. Two were called by the defendants in error, and three by the plaintiff in error. The first witness was driving a bread-wagon behind the ice-wagon. He merely heard some one halloo, and saw the man picked up from under the wheels of the wagon. The second witness called was the driver of the railway car. He swore: “ I saw him run over; heard two or three voices cry; deceased walked deliberately against the mules; he paid no attention to cries; called ‘ Go away from those mules;’ swingletree caught him and threw him down, and the wheels went over him. Driver stopped wagon as soon as he could; he was trying his best to stop when he called to him.” He further testified that Fehr was walking at a moderate gait, and “ ran right against the mules.”

The first witness called by plaintiff in error said his attention was first attracted by seeing decedent standing in the street, taking the basket from the car; that he “ was coming north, was opposite and a little south of the car; when Fehr was taking the basket from the car, the ice-wagon was crossing Walnut street. I hallooed ‘Look out.’ The driver of the ice-wagon hallooed after I did, ‘Look out.’ Fehr paid no attention; his back was towards Walnut street, his face south; driver of ice-wagon pulled in when he hallooed; * * the driver pulled in all he could, and also called to deceased.” Witness further testified: “ We both hallooed very loud; the man did not appear to hear. It all occurred in about the time it takes to count five.” The conductor of the car testified he was on the rear platform; did not see man get off; heard driver halloo ; saw man struck by the swingle-tree ; he was standing sideways towards the car, taking basket off; he was looking west (south ?); it took about as long as it takes me to tell it; driver pulled in on mules best he could.”

The driver of the ice-wagon swore the mules were past the front of the back platform when he first saw the man, and that he made an effort to hold up as soon as he saw him; that it was a dark, foggy morning; by his jumping oil' in front, and having dark clothes on, it frightened one of his mules, which was “skittish,” and gave one jump, so he could not hold it in. He also testified that he and the other witness hallooed to Fehr.

Thus it is shown that Fehr left the car in front, which is unusual, and noi likely to have been anticipated by the driver. As soon as the latter saw Fehr, he promptly, by words and by action, endeavored to prevent the collision. He left nothing undone that was practicable for him to do. Fehr first stood in an exposed and dangerous position. He gave no heed to words of warning addressed to him in a loud voice on both sides. When he did move, instead of trying to avoid the danger, he “walked right against the mules.” The driver had no reason to expect such action. He was therefore not required to guard against conduct which no person would have anticipated.

We discover no evidence from which negligence of the driver could reasonably be inferred, and it is settled law that a jury shall not be permitted arbitrarily and without evidence, to infer there was negligence: Phila. & Reading Railroad Co. v. Yerger, supra, and cases there cited ; Goshorn v. Smith, supra. If there was any negligence, it appears to have been by the unfortunate decedent. It follows the learned judge should have affirmed the eighth point submitted by the plaintiff in error.

Judgment reversed.


author: Per Curiam.

text:
    Taney’s Appeal.
    A minor who was domiciled and resident with his parents in Pennsylvania was taken by them to the west, they having formed a design to settle in the state of Kansas. _ While en route a railroad accident occurred, in the state of Michigan, by which the minor was injured and his parents killed. The minor’s aunt, resident and domiciled at Philadelphia, went to him to nurse him, and within a month of her arrival filed a petition in the Probate Court of Michigan, setting forth her intention to remain with the minor permanently in that state, whereupon she was duly appointed guardian of his person and estate. Subsequently she filed a petition in the Orphans’ Court of Pennsylvania, setting forth the above facts, showing that she had entered security in Michigan in double the amount of the minor’s estate, and praying that under the provisions of the Act of April 21st 1856, Pamph. L. 495 (there being an act of similar purport in the state of Michigan), the guardians of the minor already appointed in Pennsylvania should be discharged. Held, that both the minor and his guardian petitioning were “ non-residents” within the meaning of the said act, and that a decree should be made in accordance with the prayers of the petition.
    January 12th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from a decree of the Orphans’ Court of Philadelphia county: Of July Term 1880, No. 118.
    This was an appeal from a decree of the said court discharging Ellen Taney as guardian of the person of William Rice, a minor, between three and four years of age, and discharging the Eidelity Insurance, Trust and Safe Deposit Company as guardian of his estate. The decree was entered upon the petition of one Mary Rogers, guardian of the said minor, appointed by the Probate Court at Jackson, Michigan, to which Ellen Taney filed an answer.
    The facts were as follows: William J. Rice and wife, the parents of said minor, were, prior to October 1879, residents of and domiciled in Philadelphia. Early in that month they left Philadelphia to emigrate to Kansas, with the intention of remaining there. Upon October 10th, while travelling on the Michigan Central Railroad, an accident happened near Jackson City, by which both the minor’s parents were instantly killed, and the minor himself seriously injured. In December 1879, whilst the child was still detained in Jackson by his injuries, Mary C. Rogers, his maternal aunt, a resident of Philadelphia, went to Jackson to take care 'of him. On December 23d she filed a petition in the Probate Court of Jackson county, Michigan, setting forth her intention to remain permanently in Michigan with the child, whereupon the said court appointed her guardian of the person and estate of the said minor.
    In January 1880, Ellen Taney, of the city of Philadelphia, also an aunt of the said minor, was, upon the petition of Michael Rice, Ills uncle, appointed by the Orphans’ Court of Philadelphia county, guardian of the person, and the Fidelity Insurance, Trust and Safe Deposit Company was appointed guardian of the estate of the said minor.
    In May 1880, Mary C. Rogers, the foreign guardian, presented, by her counsel, a petition to the Orphans’ Court of Philadelphia county, setting forth her appointment as guardian in Michigan, and that she had entered security there (a duly authenticated exemplification of the proceedings being annexed to the petition); that she had given thirty days’ notice of her application to the Philadelphia guardians; that an act similar to that under which this application is made, exists in the state of Michigan; and praying the court to make a decree discharging the said Ellen Taney and the Fidelity Company as guardians.
    This petition was presented under the provisions of the Act oi April 21st 1856 (Pamph. L. 495; Purd. Dig. 412), which is as follows:
    “ In all cases where any guardian and his ward may both be non-residents of this state, and such ward may be entitled to property of any description in this state, such guardian, on producing satisfactory proof to the Orphans’ Court of the proper county, by certificates according to the Acts of Congress in such cases, that he has given bond and security in the state in which he and his ward reside, in double the amount of the value of the property, as guardian, and it is found a removal of the property will not conflict with the terms or limitations attending the right by which the ward owns the same, then any such guardian may demand or sue for and remove any such property to the place of residence of himself and ward.”
    The answer of Ellen Taney submitted that the said Mary C. Rogers, guardian, and William Rice, the minor, are not “ nonresidents of this state,” within the purview of the above act, the former having lived in ..Philadelphia as a domestic servant until her recent trip to Jackson, and the latter having lived from birth with his parents in Philadelphia; that the minor’s estate consists almost wholly of his claim against the railroad company for damages, for which the company had offered a large sum in settlement; and that the probate court of Jackson had no jurisdiction over the child, he having only been cast in said place temporarily by the chances of a railroad accident.
    The replication of Mary C. Rogers averred that it was her intention to acquire a domicile in Jackson, Michigan, before her appointment there as guardian, and that she now resides there permanently; that at the time of the accident, the father and mother of the minor had abandoned their residence and domicile here, with the intention of acquiring a new domicile and residence in Kansas, whereby both she and the minor have become legally, as well as actually, residents of the state of Michigan, and nonresidents of Pennsylvania within the meaning of the Act of 1856.
    After argument the court entered the following decree : “ It is ordered and decreed that The Fidelity Trust and Safe Deposit Company be discharged as guardian of the estate of William J. Rice, a minor, and further, that Ellen Taney be discharged as guardian of the person of the said William J. Rice.”
    Ellen Taney thereupon took this appeal, assigning as error the said decree.

      Joseph C. Ferguson, for the appellant.
    The Act of April 21st 1856, by its terms, applies only to cases in which both guardian and ward are non-residents of this state. In this case, neither the guardian nor ward were non-residents within the meaning of the act. They were both domiciled and lived in Philadelphia until, by the chances of a railroad accident, the boy was left in Michigan before his parents had acquired a new domicile, and the said Mary C. Rogers followed him, to look after him, wherever he might be. A minor’s residence or domicile is that of his father, or, if he has no father, that of his birth, and he cannot acquire another until he becomes sui juris. There was no intention by the father to change his domicile from this state to the state of Michigan. A man cannot be without a domicile. A domicile once acquired remains until a new one is acquired actually facto et animo; the fact and intention must concur’. There is one recognised exception to this rule, which is, that the domicile of birth easily reverts, and therefore, if a man has acquired a new domicile, different from that of his birth, and he removes from it with an intention to resume his native domicile, the latter is re-acquired, even while he is on his way, in itinere; for the native domicile reverts the moment the acquired domicile is given up with the intention of resuming the former. In this, as in other cases, exceptio prohat regulam: Reed’s Appeal, 21 P. F. Smith 378, 383, per Sharswood, J.; Story on Conflict of Laws, sect. 47.
    The father, in this case, did not change his residence any more than he did his domicile, because he was prevented from completing such change. In the intendment of the Act of 1856, therefore, the terms domicile and residence are synonymous. The minor, whose residence was that of his father at the time of the latter’s death, was incapable of changing his residence: Cooper v. Galbraith, 3 W. C. C. R. 546; United States v. Penelope, 2 Peters Adm’r. 450; State v. Daniels, 44 N. H. 383; Jennison v. Hapgood, 10 Pick. 77; Allentowm Contested Election Case, 8 Phila. R. 575; 2 Kent Com. 431; Frost v. Brisbin, 19 Wend. 11; Pfoutz v. Comfort, 12 Casey 422; White v. Brown, 1 Wallace, Jr., 264; Guier v. O’Daniel, 1 Binn. 349, note; School Directors v. James, 2 W. & S. 570.

      E. A. Anderson (with whom was John H. Fow), for the appellee.
    There can be no question as to the non-residence of Mary C. Rodgers, who is sui juris, and has acquired both a domicile and residence in Michigan. We contend, that the minor is also a “non-resident” within the meaning of the Act of 1856. The appointment of Mary O. Rogers was prior to the appointment of Mrs. Taney. The former having the control of the orphan minor, had the right and exercised it, of changing his residence to Michigan, even if at the time of the accident his legal residence was here: School Directors v. James, 2 W. & S. 572. The authorities are conflicting whether a guardian may change a ward’s domicile, but the weight of authority is that he may, except, possibly, for purposes of succession: Potinger v. Wightman, 3 Meriv. 67; Lyons v. Andrews, 12 Louisiana Ann. 685; Wells on Jurisdiction of the Courts 288; Holyoke v. Haskins, 5 Pick. 26; Cutts v. Haskins, 9 Mass. 543.
    But we contend that the father was a “non-resident” of Pennsylvania at the time of his death, and therefore the child was also, and so remains. The vice of the appellant’s argument is in confusing the terms domicile and residence, and treating them as synonymous. A man may be a resident of one place while he is domiciled in another; and a man whose domicile is Pennsylvania may be a non-resident of that state, even though he has not acquired a residence elsewhere. A man may become a wanderer, when there will be an end of his residence in his former dwelling place as effectually as if ho were to gain a residence in another place: Exeter v. Brighton, 15 Maine 60; Inhabitants of Jefferson v. Inhabitants of Washington, 19 Id. 302; North Yarmouth v. West Gardiner, 58 Id. 211; Pfoutz v. Comford, 12 Casey 422; Hicks v. Skinner, 72 N. C. Rep. 1; Kilburn v. Bennett, 8 Metc. 199. The distinction between domicile and residence is a clear one, and if adhered to will harmonize many apparently conflicting authorities. Residence, as distinguished from domicile, has been defined to be “ a personal presence, without any present intention to depart:” Warren v. Thomaston, 43 Maine 418; North Yarmouth v. West Gardiner, 58 Id. 210-11; Bruce v. Bruce, 6 Brown’s Par. Cas. 566; Bell v. Kennedy, Law Rep., 1 Scotch and Divorce App. 307, 320, 321; Fuller v. Bryan, 8 Harris 144; Long v. Ryan, 30 Grattan (Va.) 718 ; Dicey on Domicile 76.
   The judgment of the Supreme Court was entered January 24th 1881,

Per Curiam.

We are of opinion with the learned court below, that both the guardian and ward were residents of the state of Michican, and within the meaning and purview of the Act of April 21st 1856, Pamph. L. 495. If the question regarded the law of succession to the ward’s property the rule might be different. A clear distinction exists, as was shown in the able argument of the young gentleman who argued this case for the appellee, between domicile and residence. Every reason of policy and convenience requires the application of the provision of the statute to a case of permanent residence in another state, though in strictness the domicile may remain unchanged.

Decree affirmed, and appeal dismissed at the costs of the appellant.