text:
    Toye v. Exeter Borough School District, Appellant.

      School law — Teachers—Election of principal — Act of June 25, 1885, P. L. 175.
    -1, Under the Act of June 25, 1885, P. L. 175, the board of directors of public schools have the power to elect a principal or teaching superintendent for a term of three ears.
    2. In an action by a principal of a public school against a school district to recover his salary after an alleged improper discharge, a written contract of employment of the plaintiff executed in the name of the directors by the president and secretary of'the board, is properly admissible in evidence, where the minutes of the board show that the plaintiff was elected principal by the affirmative votes of a majority of the whole number of electors, the names of the members both for and against him being duly entered, and that his term and salary were fixed by a unanimous vo‘te.
    3. Where a teacher is dismissed for ineompetency and neglect of duty, and the minutes of the board of directors show that the dismissal- for these causes was by a unanimous vote, the minutes are conclusive as to the propriety of the dismissal in the absence of any charge or evidence of bad faith, or abuse of power upon the part of the board. In such a case it is error for the court to admit evidence to contradict the minutes.
    Argued April 13, 1909.
    Appeal, No. 90, Jan. T., 1909, by defendant, from judgment of C. P. Luzerne Co., March T., 1905, No. 232, on verdict for plaintiff in case of Peter F. Toye v. The Exeter Borough School District.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Assumpsit to recover salary as a superintendent principal of schools. Before Lynch, P. J.
    At the trial the plaintiff made the following offer:
    Plaintiff’s counsel: I offer this contract in evidence, dated first day of September, 1903, between Peter F. Toye and the board of directors of Exeter Borough School District, signed H. Krumelbine,- president of the board of directors, countersigned Charles I. Berger, secretary of the board, and also Peter F. Toye, teacher; and I desire to read it to the jury.
    Defendant’s counsel: We object to it being offered in evidence until it is known that the paper was executed by Henry Krumelbine as president of the school board and countersigned by Charles I. Berger, and until it is further shown that Krumelbine as president and Berger as secretary had the authority to enter into the contract.
    The Court: Objection overruled, paper admitted in evidence, exception noted, bill sealed for defendant. [1]
    Bessie Nealon, a witness for the defendant, was on the stand, when the following offer was made:
    Defendant’s counsel: We propose to-prove by the witness on the stand that in the school term of 1903 and 1904, she was an assistant teacher in Mr. Toye’s room in Exeter borough'; that she taught Mr. Toye’s class for about six straight weeks at the beginning of the term, and he was out of the room most of the time.
    The Court: This is following up your opening to the jury, to show incompetency and neglect?
    Defendant’s counsel: Yes, sir.
    Plaintiff’s counsel: We object to the offer by this witness of anything in support of the charges upon which this board acted in discharging this teacher, and cite 145 Pa., p. 418.
    The Court: Objection sustained, exception noted, bill sealed for defendant. [2]
    Frank Touhill, recalled for plaintiff in rebuttal.
    Defendant’s counsel: What do you propose to prove?
    Counsel for plaintiff state privately to defendant’s counsel what he proposes to prove by the witness.
    Defendant’s counsel: Objected to, because it is an effort to go back of the minutes of this board and retry the ease, which the courts have ruled time and again cannot be done unless they declare that through corruption and fraud the man was discharged. There is no allegation in thé declaration of that kind.
    The Court: The pleadings would be better if it had been set out that it was corruptly done, but we will take it. Exception noted, bill sealed for defendant. [4]
    “Q. Now, Mr'.'Touhill, go on and state what this conversation was with Mr. McCawley, the director at that time, concerning the dismissal of Toye. A. Mr. McCawley and I were working together and Mr. Toye and I were friendly, and Mr. McCawley told me in the afternoon of the meeting of the board that there was to be a meeting of the board that evening and Toye was to be dismissed, and asked me if I could let him know; that they were going to fire him; that was the words he used. And I told him I didn’t know that I could see Toye, I didn’t think that night, and I didn’t get word to him until the next day after the board had had their meeting. Mr. Mc-Cawley told me the next day that the board had met and that they had discharged Toye; and I asked him why they had discharged Toye, what was the matter with him; ' Why,’ he said, ‘ that there wasn’t anything the matter with him; ’ I says, ‘Why did they discharge him,’ and he says, ‘On account of politics.’ ‘Well,’ I says, ‘did you vote for him to be discharged,’ and he said, ‘Yes.’ I says, ‘How can you vote against a man when there was nothing the matter with him, if he was incompetent or if they had no charge against him why did you vote against him.’ He says, ‘Well, it was politics.’ I said, ‘I couldn’t understand politics that way.’ Well, he said, ‘Mr. Hughes had a brother-in-law, Mr. Sullivan, that was to be elected and that in order to make room for Sullivan why Toye had to be discharged, and that he had to vote for Sullivan because Sullivan, if he didn’t vote for Sullivan, Sullivan would not vote for him when he wanted to get his sister in.’ Q. You mean Sullivan? A. He had to vote for Hughes’ candidate, because if he did not vote for Hughes’ candidate Hughes would not vote for his candidate who he says was a relative of his and wanted a position as teacher, and he said that that is why that they voted on the thing, that they had no particular charge against Toye, but everybody had their friends and they had to get them in. And I asked him was it on account of Toye being off half a day playing ball, and he said that did not enter into it at all, that it was a case of politics.”
    CROSS-EXAMINATION.
    “Q. You knew Mr. Toye played ball with the Pittston Brothers on the team as catcher? A. Yes, sir. Q. You also knew that during the school term he stayed away from school and played ball? A. No, sir; he didn’t. Q. Why did you ask Mr. McCawley if that was not the reason? A. That was the reason he remained away for one-half day was the only day he was absent. Q. He was absent half a day from school playing ball with the Pittston Brothers? A. Yes, sir. Q. You played on that team? A. Yes, sir. Q. What relation áre you to Toye? A. Pretty hard to go back; I don’t know. Q. You are related though? A. No, sir. Q. Very close friends, and you were during 1903 when you played on the team? 'A. Not any closer than Mr. McCawley and I are. Q. That was during the school term that Mr. Toye stayed away from school to play ball, wasn’t it? A. It was the last game of the year. Q. That was during the school term? A. Yes, sir.” [5]
    Verdict and judgment for plaintiff for 12,000. Defendant appealed.

      Errors assigned among others were (1, 2, 4, 5) rulings on evidence, quoting the bill of exceptions.

      Abram Salsburg, with him W. Alfred Valentine, for appellant.
    The minutes failing to show that the act of April 11, 1862, was complied with, the action of the board as well as of the president and secretary in entering into the contract with the plaintiff for three years, was illegal and void, and should not have been admitted in evidence: Dennison Twp. School District v. Padden, 89 Pa. 395; Dyberry School District v. Mercer, 115 Pa. 559.
    Where a board of directors, without acting in bad faith, dismiss a teacher for incompetency, and such action is regularly entered on the minutes of the board, the teacher cannot recover salary for the balance of the term: McCrea v. Pine Twp. School District, 145 Pa. 550; Custer v. School Dist., 12 Pa. Superior Ct. 102; Kell v. Rudy, 1 Pa. Superior Ct. 507.

      John J. O’Donnell, with him George F. O’Brien, for appellee.
    The motion that the principal be elected for the term of three years was carried unanimously. This minute, coupled with the minute that all the members were present, constitutes a substantial compliance with the Act of April 11, 1862, P. L. 471; Burke v. School District, 28 Pa. Superior Ct. 16; Genesee Twp. School Dist. v. McDonald, 98 Pa. 444; Tobin v. Morgan, 70 Pa. 229.
    June 22, 1909:
    Plaintiff’s objection to Miss Nealon’s testimony was properly sustained: Whitehead v. School District, 145 Pa. 418.
    The testimony offered in rebuttal went to the good faith of the dismissal, as proved by the defendant. It tended to overthrow the weight and conclusiveness of the minutes of the meeting: Brown v. Finney, 67 Pa. 214; Finn v. Providence Gas & Water Co., 99 Pa. 631; Amrhein v. Clausen, 155 Pa. 93.
   Opinion by

Mr. Justice Potter,

It appears from the record in this case, that on July 10,1903, at a special meeting of the school board of Exeter borough, Luzerne county, a motion was made and carried to elect a principal for the incoming year or term of school. An election being held, P. F. Toye received a majority of the votes for principal and was declared elected.

Motions were then made and carried unanimously that the principal be elected for the term of three years and that he should receive $100 per month.,

On September 1, 1903, the president and secretary of the board, acting in the name of the board entered into a contract with Peter F. Toye by which he was employed as teaching superintendent of the borough schools for three years (twenty-seven months) at a compensation of $100 a month; the right of dismissal being reserved to the board “for any of the causes' specified in the twenty-third section of the Act of May 8, 1854, P. L. 617, which causes are incompetency and neglect of duty.” Toye was dismissed by the board at the end of the first year of his employment, upon these grounds. He alleged, however, that his dismissal was without cause, and brought suit against the school district to recover the stipulated amount of his salary for the balance of the term for which he had been engaged.

In his declaration, however, or statement of claim, he merely set forth the contract, and averred that in pursuance thereof, he performed the duties of teacher for one year, and was prevented from continuing as such during the second year, by reason of another teacher being in control of the school as a teacher. He made no allegation in his declaration, of bad faith, or abuse of power on the part of the board of directors. The trial of the cause in the court below resulted in a verdict for the plaintiff for the full amount of his claim with interest. A motion for judgment for the defendant non obstante veredicto, was refused, and judgment was entered on the verdict. Defendant has appealed, and in the first assignment, alleges error in the admission in evidence of the contract of employment, claiming that there was no evidence of authority on the part of the president and secretary to execute any such contract. There is no merit in this assignment. The board of directors had power under the Act of June 25, 1885, P. L. 175, to elect the plaintiff for a term of three years: Burke v. School District, 28 Pa. Superior Ct. 16.

The minutes of the board meeting show that the plaintiff was elected by the affirmative votes of a majority of the whole number of directors, and the names of the members voting for and against him are duly entered on the minutes as required by the Act of April 11, 1862, P. L. 471, sec. 4. It also appears that resolutions fixing his term at three years and his salary at $100 per month were unanimously adopted. The contract executed in the name of the board by the president and secretary was in strict accord with the action of the board. While the plaintiff sues upon the written contract, his right to recover really depends upon the action of the board, of which the minutes are the best evidence. Having accepted the election and entered upon his duties, the contract was complete on both sides. The admission in evidence of the written instrument did the defendant no harm. As we have said, the plaintiff does not in his statement, allege that the board of directors acted corruptly or in bad faith, in dismissing him as superintendent. The action of the board was regularly entered upon the minutes, and in the absence of any charge by the plaintiff in his statement, of bad faith, or abuse of power upon the part of the board, the minutes were conclusive, as to the propriety of his dismissal. This court said, in Whitehead v. School District, 145 Pa. 418, speaking through Mr. Justice Clark (p. 429), “The Board of School Directors had the power to dismiss this teacher for incompetency, 'cruelty, negligence, or immorality. This power is expressly given in paragraph V, sec. 23, Act of May 8, 1854, P. L. 622, and was reserved in the contract. As a deliberative body, a board of school directors is intrusted with the government of the schools, and by the statute is empowered both to employ teachers, and for the causes stated, to dismiss them. The board, therefore, had jurisdiction under the statute to pass upon any charge of this character’, and in its determination was held merely to the exercise of good faith, and was answerable only for an abuse of its powers.” The rule thus laid down was repeated, and followed in McCrea v. School District, 145 Pa. 550, when it was said (557), “It would greatly impair the government and efficiency of the common schools, if the honest judgment and discretion of the board, exercised in good faith, could be reviewed and reversed by a jury. Such a policy would place the practical management and control of the schools on very precarious and uncertain ground.” The present case was badly tried throughout. The only thing charged against the district was violation of the contract, without any allegation of bad faith, and in the evidence in chief of plaintiff, it was shown that he was dismissed upon the avowed ground of incompetency and neglect of duty, by the unanimous vote of the board. Under this showing, the minutes of the board were under the authorities above cited conclusive, and it was error in the trial court to permit evidence to be introduced to contradict the minutes. As Mr. Justice Clark said in McCrea v. School District, 145 Pa. 550, “ A teacher wronged in this respect, that is to say, through fraud or oppression, may seek redress by suit against the members of the board for damages. But the control and government of the schools is given to the board of directors, who have peculiar opportunities of judging, and their action, if taken in good faith, is final.” The trial judge seems to have misconceived the entire situation. In the face of the evidence introduced by plaintiff showing his dismissal upon the ground of incompetency and neglect of duty, he placed the burden of justifying its action upon the board of directors, and when the board attempted to assume this burden, improperly placed upon it, the trial judge sustained the objection of counsel for plaintiff and excluded the testimony of the witnesses for the defendant, called to prove the incompetency of the plaintiff, and his neglect of duty. The theory upon which the case seems to have been tried was entirely wrong, and the judgment is reversed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Keystone Coal Company’s Trustee.

      Trusts and trustees — Trustee in corporate mortgage — Appointment— Equity — Acts of June 14, 1836, P. L. 628, and June 16, 1836, P. L. 784.
    1. Where a vacancy occurs in the trusteeship of a corporate mortgage, and the mortgage provides no method of filling the vacancy, the proper proceeding to secure the appointment of a successor to the former trustee is by bill in equity under the Act of June 16, 1836, P. L. 784, which gives to the several courts of common pleas the jurisdiction and powers of courts of chancery, and specifically confers upon them power to control, remove, discharge and appoint trustees generally.
    2. A trustee in a corporate mortgage being the mere repository of the title to the mortgaged property is not such •& trustee as is contemplated by the Act of June 14, 1836, P. L. 628, which relates solely to assignees for the benefit of creditors and other trustees performing active duties under the immediate control and direction of the court of common pleas.
    Argued April 13, 1909.
    Appeal, No. 43, Jan. T., 1909, by Victoria Schmitt, executrix, from decree of C. P. Luzerne Co., Feb. T., 1908, No. 58, appointing trustee in the Matter of the Appointment.of a Trustee of the Mortgage of the Keystone Coal Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Petition for the appointment of a trustee. Before Lynch, P. J., and Fuller, J.
    The opinion of the Supreme Court states the case.

      June 22, 1909:

      Error assigned was the decree of the court.

      Edmund G. Butler, with him John McGahren, for appellant,
    cited: Canole v. Allen, 222 Pa. 156; Naglee’s Est., 52 Pa. 154.

      William S. McLean, Jr., with him William S. McLean and George R. McLean, for appellees.
   Opinion by

Mr. Justice Brown,

The Keystone Coal Company, on April 15, 1891, executed a. mortgage to Thomas Ford, trustee, to secure the issue of 124 bonds of $1,000 each. He died November 25, 1901, and on December 5, 1907, a petition, based on the Act of June 14, 1836, P. L. 628, and addressed to the court of common pleas of Luzerne' county was presented to one of the judges at chambers, who granted a rule to show cause why the prayer should not be granted, returnable to the next argument court. The appellant promptly raised the question of the court’s jurisdiction, averring in her answer to the rule to show cause that under the Act of June 16, 1836, P. L. 784, and its supplements, exclusive jurisdiction of the subject-matter in the petition was vested in the court sitting as a court of chancery. In the opinion of the court sustaining the petition the learned judge, speaking for it, said: “We are of the opinion that the proper procedure in this case would have been by bill according to the practice in equity. The act of June 16, 1836, which became law after the act of June 14,1836, aforesaid, vests in the court of common pleas the powers of a court of chancery, among other things, so far as relates to the appointment of trustees, and the practice provided for the exercise of this chancery jurisdiction is distinctly different from that pursued in the present proceeding. Inasmuch, however, as the judge to whom the petition was presented assumed jurisdiction and the case has been fully heard in the proper court although not on the right side of that court, and no harm can possibly result to any person concerned by a determination in this proceeding, we have concluded to hold jurisdiction as assumed at the beginning and make a disposition of the case upon the merits, which have been fully presented.” This we can neither understand nor approve. Jurisdiction is denied and assumed in the same breath. If the proceeding for the appointment of a new trustee ought to have been under the act of June 16,1836, and the court had no jurisdiction under the act of June 14, 1836, the appointment of the trustee is void. From the most cursory reading of the act of June 14, 1836, it is clear that the appointment of a successor to Ford as trustee in the mortgage is not within its provisions. That act relates solely to assignees for the’ benefit of creditors and other trustees performing active' duties under the immediate control and direction of the court of common pleas, and when such an assignee or trustee shall die, the court, by the twenty-third section, has the power to appoint a successor. Ford was not such a trustee. No active duties of any kind had devolved upon him so far as can be gathered from the petition, and he was but the repository of the title to the mortgaged property, in trust for the whole creditor class secured by it: Commonwealth v. Susq. & Del. R. R. Co., 122 Pa. 306. The petition for the appointment of a successor to him should have beerndismissed. The filling of the vacancy occasioned by his death is not, as the court below properly held, provided for in the mortgage, and it will, therefore, become the duty of the court, in a proper proceeding, to make an appointment. This, however, must be under the act of June 16, 1836, which, in giving to the several courts of common pleas of the commonwealth the jurisdiction and powers of courts of chancery, specifically confers upon them the power to control, remove, discharge and appoint trustees generally. The decree is reversed and the appointment of the trustee vacated and set aside, the costs below and on this appeal to be paid by the appellees.


author: Mr. Justice Elkin,

text:
    Wickham, Appellant, v. Taylor.

      Appeals — Assignments of error — Exceptions—Equity practice.

    1. Assignments of error to findings of fact and conclusions of law by the court below sitting as a court of equity will not be considered where no 'exceptions have been filed to such findings and conclusions.

      Equity — Equity jurisdiction — Title to land — Ejectment bill — Remedy at law.

    2. A bill in equity praying for the cancellation of a deed on the ground of fraud in certain partition proceedings in which the defendant secured the deed, will be dismissed as an ejectment bill involving merely a question of title to land.
    3. It may be that such a title may not be good because of irregularities in the proceedings or because the court did not have jurisdiction, or because the parties to the partition proceeding did not have title, but all of these questions must be determined in an action at law when the question of title is properly raised between the parties asserting adverse title to the land in dispute.
    Argued April 14, 1909.
    Appeal, No. 131, Jan. T., 1909, by plaintiffs, from decree of C. P. Luzerne Co., Oct. T., 1908, No. 19, dismissing bill in equity in case of Charles L. Wickham and Hiram L. Hess v. Weston B. Taylor et al.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Demurrer to bill in equity. Before Halsey, J.
    The opinion of the Supreme Court states the case. ,

      Error assigned was decree dismissing the bill.

      A. Ricketts, for appellants.
    It certainly needs no citation of authorities to show that equity has concurrent jurisdiction in matters of fraud. And our acts of assembly conferring jurisdiction in equity confer such jurisdiction in all cases of fraud: Dull’s App., 113 Pa. 510; Slegel v. Lauer, 148 Pa. 236; Yonkers v. Warden, 8 Pa. Superior Ct. 395; Fellows v. Fellows, 4 Cowen, 682.

      R. Laura Cannon, for appellees.
    Equity has no jurisdiction of a case, the principal question in which is^the determination of adverse legal titles to property: Booher v. Browning, 169 Pa. 18; Barclay’s Appeal, 93 Pa. 50; Washburn’s Appeal, 105 Pa. 480; Grubb’s Appeal, 90 Pa. 228.
    June 22, 1909:
   Opinion bt

Mr. Justice Elkin,

The first four assignments of error will not be considered because in violation of the equity rules. No finding of fact, or conclusion of law by the learned court below sitting as a chancellor has been excepted to, and no part of the opinion filed has been specified as error in these assignments. We may, therefore, dismiss them without further consideration. The fifth assignment raises the question as to the order of the court sustaining the demurrer and in entering a decree dismissing the bill. The principal contention relied on by the learned counsel for appellants is that fraud had been practiced upon the plaintiffs and the court by the defendants in the partition proceedings referred to in the bill, and that the sale of the lands in question by the master in partition was intended to manufacture an appearance of title through the guise of a judicial sale and that no valid title did pass to the purchasers as a result of that judicial sale. It is admitted that the purchasers at the sale by the master in partition took a deed for the land in dispute and that this deed is outstanding and of record in the office of the recorder of deeds in Luzerne county. The prayer of the bill asks that the partition proceedings and the sale made thereunder may be declared fraudulent and void and that the purchasers at the sale by the master in partition be compelled to deliver up their deed for cancellation. All of this is asked upon the ground that the partition proceedings and the deed made thereunder are a cloud upon the title of plaintiffs. The defendants demurred to the bill on several grounds, namely, that it is multifarious; that it is an ejectment bill concerning title to real estate; that the averments do not make out a case for equitable relief; that the bill does not show title in either plaintiff for either piece of land; that no common right by plaintiffs against defendants is averred; and that the plaintiffs do not disclose in their bill any right to intervene on the question of title to the lands in dispute as between the defendants, the Taylor heirs on one side and Sutton and Freeman, the purchasers at the sale in partition on the other.

The learned court below after very careful consideration sustained the demurrer in an opinion which shows intelligent consideration of the complicated questions involved. We fully agree with the conclusion reached by the learned court below. The question involved between the contending parties is the title to the land in dispute and the remedy, if there be any, is by ejectment in an action at law. Sutton and Freeman hold a deed from the master in partition for the lands in question, and are asserting their title under the same. We must assume that the partition proceedings were regular and that the petitioner made out such a case as to warrant the court in decreeing the partition and authorizing the sale. Certainly, under these circumstances, the purchasers cannot be said to hold a deed which is only in the nature of a cloud upon the title set up by appellants. It is not a cloud upon the title, but a regular title conveyed under the forms of law required in a proceeding in partition. It may be that even such a title may not be good because of irregularities in the proceedings or because the court did not have jurisdiction, or because the parties to the partition proceeding did not have title, but all of these questions must be determined in an action at law when the question of title is properly raised between the parties asserting adverse title to the land in dispute. There is not a case in the books in our state where a disputed question of title was tried in a court of equity. There are other questions raised by the demurrer upon which it might be properly sustained, but no useful purpose can be served by prolonging the discussion.

Decree affirmed at the cost of appellants.


text:
    Sturtz v. Delaware, Lackawanna & Western Railroad Company, Appellant.

      Negligence — Court and jury — Master and servant-^Dangerous machinery — Failure to instruct — Question for jury.

    1. It is only in clear cases where the facts and inferences to be drawn from the testimony are free from doubt and but one conclusion is dedueible that the court may not permit a jury to reach a different one.
    2. In an action by a boy sixteen years old against his employer, a coal mining company, to recover damages for personal injuries sustained while greasing machinery, a verdict and judgment for the plaintiff will be sustained, where the evidence warrants a finding that the plaintiff was instructed by the boss who had authority to act, to grease a particular wheel; that the place and the job were dangerous; that no warning nor instruction was given; that plaintiff was inexperienced in the particular work, not having knowledge of its danger; and that the danger itself was not so obvious as to affect him with knowledge, and thus dispense with warning or instructions.
    Argued April 14, 1909.
    Appeal, No. 47, Jan. T., 1909, by defendant, from judgment of C. P. Luzerne Co., March T., 1907, No. 22, on verdict for plaintiff in case of Bernard Sturtz, by his next friend and father, Anthony Sturtz, and said Anthony Sturtz in his own right v. Delaware, Lackawanna & Western Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Fuller, J.
    At the trial the jury returned a verdict for $2,400 for Bernard Sturtz and $600 for Anthony Sturtz.
    On a motion for a new trial and for judgment n. o. v., Fuller, J., filed the following opinion:
    The boy plaintiff, sixteen years of age, received his injury at the defendant’s coal breaker, while engaged in the act of applying grease upon a certain belt wheel, in pursuance of an alleged direction given by the breaker boss, without warning or instruction respecting the danger.

      The question of liability under the evidence is exceedingly close; so close, indeed, that upon a motion for a new trial we should have been tempted to allow opportunity for an opposite conclusion from another jury, and even on this motion for judgment non obstante veredicto we have great hesitancy in sustaining the verdict.
    In order to sustain the verdict there should appear in the record of the trial competent evidence, more than a scintilla, which if believed by the jury would warrant these findings of fact, viz.: (1) That McGraw, the boss, directed Sturtz, the employee, to grease the wheel; (2) that McGraw had authority to give such a direction; (3) that by the direction McGraw intended, and Sturtz understood, the upper one of two wheels over which the belt ran; (4) that the place and the job were dangerous; (5) that no warning or instruction was given; (6) that Sturtz was inexperienced in the particular job, not having knowledge of its danger; (7) that the danger itself was not so obvious as to affect him with knowledge and thus dispense with warning or instruction.
    Furthermore, in order to sustain the verdict it should not appear in the record of trial that the act of Sturtz himself constituted negligence per se, or that the act of McGraw constituted negligence by a fellow servant.
    If the record is barren of proof on any one of the material points enumerated, or if it establishes the fact of plaintiff's negligence per se, or the negligence of a fellow servant, the present motion should prevail, but not otherwise.
    On point (3) the proof is certainly meager, and respecting point (7) we have much doubt, but we are not convinced, after a careful consideration, that the record is barren upon any one of the essentials above enumerated. In other words, there was competent evidence, more than a scintilla, upon which to predicate findings of fact.
    It was the plain province of the jury to find, and not of the court to declare, whether the risk of being drawn against the wheel must have been so palpable, even to a lad without experience, that warning or instruction would have been superfluous in fact and therefore unrequired in law.

      We put this point to the jury in a manner which we think furnishes no just ground of complaint, thus:
    “Next, and very important indeed, you must find that the danger was not so apparent as to give its own warning to a person of ordinary intelligence in his senses, and be cognizant to this boy without warning in spite of his inexperience in the particular job.
    “Was the danger so plain that a warning would have been superfluous? In that case, of course, failure to warn would not have been a breach of the employer’s duty, and you could not find negligence. A boy of that age, sixteen and one-half years old, is presumed to have ordinary adult intelligence and ability to apprehend obvious results, to perceive obvious dangers without being warned. In this case the presumption would be fortified by the proved experience of the boy in and about coal mines and breakers.
    “Was the danger so obvious that he should have perceived and avoided it in the exercise of ordinary powers of perception and of observation? Should he without being warned, have recognized the risk of placing the paddle against that wheel, in motion, in that narrow space between the upper and the lower belt and have recognized the risk of being jerked in as he was?
    “If so he cannot complain, and your verdict must be for the defendant.”
    The claim of contributory negligence is based upon two propositions, viz.: (a) that the act of greasing the wheel was against the spirit, if not the letter, of the statutory prohibition that “no person shall oil dangerous parts of such machinery while it is in motion,” (b) that the imprudence of such an act, even independent of the statutory prohibition, ought to be declared negligence per se.
    An affirmative of the first proposition would involve judicial assumption of the fact that oil and grease are identical and we are not prepared to make such an assumption.
    Of course they possess similar properties, but they are certainly not identical in substance, in function, or in language, taken either in a technical or a popular sense.

      The question why the statute should have specified oil only, without mention of grease, must be referred to the inscrutable wisdom of the legislator upon whose province we cannot encroach in order to supply the omission.
    An affirmance of the second proposition would involve judicial assumption that the risk of being drawn against the wheel must have been so palpable even to a lad without experience that a warning or instruction would have been superfluous, which would be an encroachment upon the province of the jury as we have already declared.
    We presented this subject to the jury, properly, as we think, thus:
    “The plaintiffs cannot recover if the boy’s own carelessness helped to bring about the accident. He was bound to exercise ordinary prudence on his part, to take reasonable care of himself, and if, exercising such care he would not have been hurt, he cannot complain but must suffer without redress the penalty of his own contributory negligence.
    “ Now ask yourselves in all seriousness whether a person exercising common care under the circumstances, as you find them to have been, would have inserted a paddle one foot long in the narrow space between the belt above and below, against a moving wheel? Was that an act of ordinary prudence, of reasonable caution under the circumstances, or was it a careless thing to do, for which he ought to suffer the penalty without compensation exacted even from a negligent defendant?
    “ It is a question for you to determine under the evidence. If that grease had been oil, and if he had undertaken to oil that wheel while in motion, he would perhaps be barred by .the statute of Pennsylvania, which positively prohibits the act of oiling dangerous machinery in motion. The boy did put the grease on the wheel while in motion, but I cannot say, as I am requested to say, that the evidence establishes a violation of the statute. I do say, however, that regardless of the statute it is within your province to find contributory negligence from all the circumstances. It is purely a question for you.”
    The claim’ of negligence by a fellow servant falls with the jury’s finding of fact above enumerated (2), that McGraw had authority to give the direction. If he had such authority his failure to give warning or instruction must be imputed to the employer and cannot be deemed the negligence of a fellow servant, as we understand the law upon this subject, and as we laid down to the jury, thus:
    “It is undoubtedly a duty of the employer who puts an inexperienced employee to work upon a dangerous machine or in a dangerous place, to warn him of the danger and instruct him how to avoid it, unless the danger is so apparent that any person of ordinary intelligence, in his senses, must be presumed to be cognizant of it, and a warning would be superfluous. This duty of the employer is a direct personal and absolute obligation resting upon him from which nothing relieves but performance. It cannot be delegated by the superior to an inferior, however he may be designated, so that the latter’s omission to give the warning becomes the act of a fellow servant, for which the superior would not be responsible; but the employer, of course, is not liable on this principle unless he or an authorized inferior puts the employee upon the dangerous job.

      “ You must find that McGraw had authority to give such a direction. If not, then it was the act of a fellow servant, for which defendant was not responsible. There is no express evidence of his authority, but if you believe from the evidence that McGraw, although inferior in authority to Wallace and Powell, the head bosses, nevertheless assigned the boys to their various jobs in that section of the breaker, setting them to pick slate or to watch the belt, or to oil machinery, as he deemed fit, you might legitimately infer therefrom his authority to give such a direction, particularly in view of the circumstances that the job was not so very remote from the line of the boy’s regular duty to keep the belt clear. In that case, if you find that authority, he would be in that respect what the law designates a vice principal. If, however, you do not find this fact of McGraw’s authority, you must conclude that in giving the direction he acted not as a vice principal representing the defendant and making the defendant responsible, but as a fellow servant for whose failure to warn or instruct the defendant would certainly not be responsible.”
    June 22, 1909:
    Being unable to conclude that the submission of this case to the jury upon any of the propositions involved was erroneous, we are constrained to deny the motion for judgment non obstante veredicto.

      Error assigned was in refusing binding instructions for defendant.

      B. R. Jones, with him D. R. Reese, for appellant, cited:
    Fletcher v. Traction Co., 190 Pa. 117; O’Keefe v. Thorn, 24 W. N. C. 379; McEwen v. Hoopes & Townsend, 175 Pa. 237; Cracraft v. Limestone Co., 210 Pa. 15; Baldwin v. Urner, 206 Pa. 459; Voshefskey v. Coal & Iron Co., 21 App. Div. (N. Y.) 168.

      Thomas F. Farrell, with him John McGahren, for appellees,
    cited: Sheetram v. Trexler Stave & Lumber Co., 13 Pa. Superior Ct. 219; Doyle v. Pittsburg Waste Company, 204 Pa. 618; Rummell v. Dilworth, 111 Pa. 343; s. c., 131 Pa. 509; Tagg v. McGeorge et al., 155 Pa. 368; Neilson v. Hillside Coal & Iron Co., 168 Pa. 256; Staddon v. Chapman Mineral Co., 33 Pa. Superior Ct. 475.
   Opinion by

Mr. Justice Brown,

On the argument of this appeal we all felt that the recovery by the appellees could not be sustained because the dangerous situation in which Bernard Sturtz had placed himself at the time he was injured was so obvious that warning of it and instructions as to it were not required from the appellant. This was due to certain statements appearing in the printed argument of counsel for appellant, said to be supported by the testimony in the case, and by this we understood that the supporting testimony was undisputed. The averments of counsel for appellant, said to be supported by the testimony in the case, are that Sturtz proceeded to the upper wheel and by climbing over the belt line and crawling on his stomach succeeded in getting the most of his body within the box incasing the upper wheel; that the upper belt wheel was in-cased, fenced in and closed up in a box, and to reach it it was necessary for the plaintiff to leave his place of employment, walk a distance of fifty feet, crawl over the belt line, then crawl on a beam and, lying flat, reach his arm into the box where the wheel was located, and, in the small space of a few inches, attempt to apply grease by the paddle or sheet iron; and that it was only with the greatest difficulty that he was able to crawl into the place where the injury happened. On the ease as presented to the jury upon the testimony of the injured appellee and his witnesses, the situation was by no means that appearing in the foregoing statements of counsel for appellant. The belief of the jury, fully justified by the testimony — the recital of which will serve no useful purpose — was that a few minutes before the young man was injured the belt was sticking on the wheel; that his boss, McGraw, authorized to direct him, ordered him to grease it; that he understood McGraw to mean that the upper belt wheel should be greased; that instead of crawling on his stomach to the point where he greased the wheel, he proceeded up a walk alongside of the belt for a distance of twenty-five or thirty feet, got on a log and from it, at a point about two feet away from the wheel, greased the same; that the place where he was working and the work itself were dangerous; that no warning or instruction had been given him ; that he was inexperienced in the work he was directed to do and knew nothing of its danger, which was not so obvious as to affect him with knowledge, relieving the employer from warning or instruction.

The learned trial judge had some doubt as to the sufficiency of the proof of the direction by McGraw that the upper belt wheel should be greased and as to the obviousness of the danger, but because he had doubt as to what inferences might be drawn from the testimony on these two questions, he was bound to submit them to the jury. It is only in clear cases where the facts and inferences to be drawn from the testimony are free from doubt, and but one conclusion is deducible that the court may not permit a jury to reach a different one: Iseminger v. York Haven Water & Power Co., 206 Pa. 591. The court below fully vindicated the propriety of the submission of the case to the jury in the opinion denying a motion for judgment for the defendant n. o. y., and on that opinion the judgments for the appellees are affirmed.


text:
    First National Bank of Bloomsburg v. Gerli, Appellant.

      Evidence — Competency of witness — Party dead — Promissory note.

    1. In an action by a bank on a promissory note against the administrator of the indorser who was also the payee, the maker of the note who while cashier of the plaintiff had discounted the note and passed the proceeds to his own credit, although on the face of the note they should have been passed to the payee’s credit, will not be permitted to give testimony, the effect of which would be to relieve himself from liability to the payee’s estate.
    2. Under clause e, sec. 5, of the Act of May 23, 1887, P. L. 158, it is the adverse interest of a witness and not his adverse testimony that disqualifies him.
    3. Clause e, sec. 5, of the act does not render one incompetent who may be a surviving or remaining party to a thing or contract unless his interest is adverse to the right of a deceased party. Adverse interest existing at the time a witness is called to testify is the test of his competency.
    Argued April 14, 1909.
    Appeal, No. 83, Jan. T., 1909, by defendant, from judgment of C. P. Columbia Co., Doc. T., 1908, No. 34, on verdict for plaintiff in case of The First National Bank of Bloomsburg v. Emanuel Gerli, Administrator C. T. A. of the Estate of Guiseppe Ratti, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Assumpsit on a promissory note. Before Evans, P. J.
    The note was as follows:
    “Bloomsburg, Pa., Aug. 7, 1906.
    “No. 7,531.
    “Four months after date I promise to pay to the order of Joseph Ratti, $5,000, five thousand dollars, at the First National Bank of Bloomsburg, Pa. Due December 7, 1906. Without defalcation, for value received.
    Credit the drawer.
    “ (Signed) E. F. Carpenter.
    “ (Endorsed)
    “Joseph Ratti.”
    At the trial the plaintiff made the following offer:
    Mr. Ikeler: I will make a general offer so as to get this matter upon the record. Counsel for plaintiff propose to prove by the witness upon the stand that he is the maker of the note marked exhibit “A” and that Joseph Ratti indorsed the same in his own proper handwriting before maturity some time in the spring of 1906, at his residence in the town of Bloomsburg at the request of Mr. Carpenter, the witness; that Mr. Ratti was an Italian by birth; a man of large means, whose family and relatives resided in the kingdom of Italy; that he was accustomed to making frequent trips abroad, sometimes staying for a period of six months; that the note in suit was indorsed by Joseph Ratti on the day of his departure to New York city for the purpose of sailing to Italy to be gone a considerable time; that the witness did not at that time know the exact date when he might wish to use the note, which Mr. Ratti had indorsed, and for that reason at the time of this indorsement, the date of the note was left in blank with the full understanding of both Mr. Ratti and the witness that it should be dated whenever used and discounted for the benefit of Mr. Carpenter; that at the same time of the indorsement of the note Mr. Ratti agreed with and instructed Mr. Carpenter as cashier of the First National Bank that the note in question should not be protested, and that he thereupon instructed Mr. Carpenter to attach to the note, whenever he might present it for discount, a typewritten slip containing a waiver of protest and duly signed by Mr. Ratti. We offer further to show that the witness and Mr. Ratti had had a large number of business transactions together and that at the times when Mr. Ratti was in Italy it was his custom to leave his various notes in the different banking institutions upon which he was maker or indorser in the hands of Mr. Carpenter, and to leave with him at the same time waivers of protest so that any and all notes upon which his name appeared, either as maker or indorser, might not be protested at maturity; that on August 7, 1906, the witness had the- notes discounted at the First National Bank of Bloomsburg in- the town of Bloomsburg, the plaintiff in this case, filling in the date at that time according to the understanding and agreement of Mr. Ratti, and at the same time that the note was discounted Mr. Carpenter as cashier attached thereto with brass clips the waiver of protest which had been signed by Mr. Ratti; that Mr. Ratti died in Italy October 26,1906, before maturity of the note; and also to show that the note had not been paid by the witness, the maker. All of which evidence is offered for the purpose of explaining the postdating of the note in suit, and also to identify the slip of paper attached to the note as having been intended by Joseph Ratti to apply and refer to this identical paper; to show generally before the maturity of the note Joseph Ratti waived notice of nonpayment and protest thereon. All generally for the purpose of establishing the liability of the defendant in this case upon the note in suit.
    Mr. Ikeler: It is conceded that the proceeds of this note were discounted by the plaintiff bank, and were placed to the credit of Mr. Carpenter on the books of the bank.
    defendant’s objection.
    Mr. Harman: Counsel for the defendant object to the competency of the witness to testify to the acts or declarations of the decedent, Joseph Ratti, wherein witness acted for and represented the First National Bank, plaintiff, in this case. The incompetency being based upon the inability in the law of the witness to testify for the surviving or remaining party to the thing or contract in action, the other party to the same being dead. Further object to the competency of the witness to testify to the acts, matters and things as related in the offer, for the reason that the witness is disqualified and incompetent under clause “E” of sec. 5 of the witness act of 1887, on the ground of having an adverse interest to the estate of the deceased indorser of the note.
    June 22, 1909:
    Mr. Ikeler: I desire to make an addition to the offer, to further show by the witness on the stand that although Mr. Ratti did not sign the note under the words “credit the drawer,” the note was drawn by Mr. Carpenter and that he requested Mr. Ratti to indorse the same, and Mr. Ratti did indorse it with the full understanding and knowledge and agreement that the proceeds of this note, when discounted, should go to the credit of E. F. Carpenter.
    Mr. Harman: Counsel for the defendant further objects to the competency of the witness, E. F. Carpenter, to testify to any matter or thing in relation to the character of the paper in question, upon the well-known rule of law that parol testimony cannot ordinarily be attempted to vary or contradict the terms of the written instrument, especially as in this case. The payee and the indorser of the note in question is dead, and the witness cannot possibly be answered by the only other party to the paper.
    The Court: We will overrule this objection, note an exception and seal a bill for the defendant. [1]
    Verdict and judgment for plaintiff for $5,381.66. Defendant appealed.

      Error assigned was (1) ruling on evidence, quoting the bill of exceptions.

      John G. Harman, with him Richard E. Dwight, for appellant.
    Carpenter was an incompetent witness: Foster v. Collner, 107 Pa. 305; Griffith v. Reford, 1 Rawle, 196.

      Fred Ikeler, with him Clinton Herring and Wm. C. Johnston, for appellee,
    cited: Dickson v. McGraw, 151 Pa. 98; Pattison v. Cobb, 212 Pa. 572; Horne v. Petty, 192 Pa. 32; Steiner v. Erie Dime Savings & Loan Co., 98 Pa. 591: Lacock v. Com., 99 Pa. 207.
   Opinion by

Mr. Justice Brown,

Plaintiff’s right to recover depends upon the testimony of E. F. Carpenter, and on this appeal the controlling question is his competency to testify to the facts about to be stated. He and Ratti, for some time prior to the latter’s death in-. October, 1906, had been friends and associates in business. In the spring of that year, as Ratti was about to start on a trip to Italy, he endorsed the note in suit for the benefit of Carpenter, the maker, who was then the cashier of the bank. When Ratti delivered the note to Carpenter the date in it was left blank, to be inserted whenever Carpenter might need the money. On August 7, 1906, the note, with that date inserted, was discounted by the bank and the proceeds credited to Carpenter. When Ratti indorsed the note he authorized Carpenter to attach to it a waiver of protest, as it might fall due before his return from Italy. This waiver was identical in form with others which Ratti had left with Carpenter for the purpose of avoiding protest of notes upon which he was indorser, if they should mature during his absence. When the note was discounted Carpenter fastened the waiver of protest to it.

At the time of the trial — February 8, 1909 — Carpenter had no connection with the bank. A year before he had resigned as cashier and disposed of all his stock in the institution. He was, therefore, not incompetent as a witness on the ground of having any interest in the judgment that the bank might recover against Ratti’s estate; but was he competent under clause e, sec. 5, of the Act of May 23, 1887, P. L. 158, which provides that where any party to a thing or contract in action is dead and his right thereto or therein has passed either by his own act or by the act of the law to a party on the record who represents his interest in the subject in controversy, no surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased, shall be a competent witness to anything occurring before the death of said party? This clause does not render one incompetent who may be a surviving or remaining party to a thing or contract unless his interest is adverse to the right of the deceased. “The disqualification is made to depend not only on the fact of being a ‘remaining party/ but having an ‘adverse interest:’ ” Dickson v. McGraw Bros., 151 Pa. 98. Adverse interest existing at the time a witness is called to testify is the test of his competency, for by sec. 6 of the act one incompetent under clause e of sec. 5 may become competent by a release or extinguishment in good faith of his interest. It is the adverse interest of the witness, and not his adverse testimony, that disqualifies him: Horne & Co. v. Petty, 192 Pa. 32.

From the note itself it is clear that Ratti’s indorsement was not for the accommodation of Carpenter. Under the words “credit the drawer,” appearing on its face, the indorser’s signature is omitted, and the instrument, without parol testimony to vary it, is an absolute promise of Carpenter to pay Ratti $5,000 for value received. At the time he says Ratti delivered the note to him Carpenter was the cashier of the bank, and the presumption would be that when the note was discounted it was for the benefit of Ratti, and that the proceeds ought to have gone to his credit. The effect of Carpenter’s testimony is to wipe out his obligation to pay Ratti and turn it into a paper bearing the accommodation indorsement of the payee for his benefit. If the judgment on this verdict, procured on his testimony, is to stand, he will be permitted to retain the proceeds of the note, which, from the face of it, he ought not to have received, and, though Ratti’s estate may recover from him the amount of the judgment against it in this suit it will still sustain a loss of $5,000, if the indorsement was not for the accommodation of Carpenter, for it will not be able to recover the proceeds of the note either from the bank or him. As his testimony made the indorsement one for his accommodation and relieved him from liability to pay Ratti’s estate $5,000, which he promised to pay, for value received, he was, at the time of the trial, a witness having an interest adverse to the right of the deceased. If it were conceded by the appellant that Ratti’s indorsement was for Carpenter’s accommodation, or that the proceeds of the note had been credited or paid to Ratti, Carpenter would not be a witness having an interest adverse to a right of the deceased, for, though fixing the liability of his indorser’s estate by his testimony, he would at the same time admit his own to the estate, if it should be compelled to pay the note.

The first assignment of error is sustained and the judgment reversed with a venire facias de novo.


author: Me. Justice Elkin,

text:
    Catlin v. Northern Coal & Iron Company, Appellant.

      Railroads — Eminent domain — Damage—Evidence—Witness—Expert —Exception—Assignment of errors — Appeals.
    1. Witnesses in condemnation proceedings should not be permitted to express ah opinion as to values until they show by a preliminary examination that they have knowledge of the land, its area, improvements, the uses for which adapted, and the general selling price in the neighborhood.
    2. An exception taken to the action of a trial judge in permitting witnesses'to express an opinion as experts after their preliminary examination, will not cover subsequent rulings on offers and questions to which no separate exceptions are taken.
    3. A single assignment of error to the refusal of the court below to strike out the testimony of a large number of witnesses violates rule 29. Each error relied on must be made the subject of a separate assignment.
    4. In a proceeding to assess damages for land condemned by a railroad company, the jury may consider the availability of the land for sale as building lots, if it appears that lots, streets and alleys were actually laid and marked on the ground; that the lots were located in a section of a city desirable for building purposes, and that they were available and on the market for sale as building lots at the time the railroad company entered; and this is the case although no lot had been actually sold because of the high price at which they were held.
    Argued April 15, 1909.
    Appeal, No. 109, Jan. T., 1909, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1905, No. 69, on verdict for plaintiff in case of Sterling R. Catlin v. Northern Coal & Iron Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Appeal from report of jury of view. Before Lynch, P. J.
    The opinion of the Supreme Court states the facts of the case.

      June 22, 1909:

      Errors assigned were (1-13) various rulings on evidence and various instructions.

      George R. Bedford, with him Paul Bedford and Andrew H. McClintock, for appellant,
    cited: Penna. Schuylkill Valley R. R. Co. v. Cleary, 125 Pa. 442; Schuylkill River, etc., R. R. Co. v. Stocker, 128 Pa. 233; Philadelphia Ball Club v. Philadelphia, 192 Pa. 632; Hamory v. R. R. Co., 222 Pa. 631; Cox v. R. R. Co., 215 Pa. 506; Gorgas v. R. R. Co., 215 Pa. 501.

      John T. Lenahan, with him Charles F. McHugh, for appellee, cited:
    Ardesco Oil Co. v. Gilson, 63 Pa. 146; Schuylkill River, etc., R. R. Co. v. Stocker, 128 Pa. 233; McGroarty v. Coal Co., 212 Pa. 53; Wilson v. Equitable Gas Co., 152 Pa. 566; O’Brien v. Ry. Co., 194 Pa. 336.
   Opinion by

Me. Justice Elkin,

The appellee for many years had been the owner of a rectangular tract of land located within the municipal limits of the city of Wilkes-Barre containing nearly thirty acres, eighteen acres of which were high ground available for building lots and the remainder was low ground suitable for agricultural purposes. As the city grew in population the land in question became available as a residential section. Several tracts near the land of appellee were purchased, divided into lots and sold as building sites. Appellee, evidently considering that his property was adapted to the same purpose, laid out the eighteen acres of high ground into building lots, plotted streets and alleys, all of which were marked on the ground, and offered the lots for sale. It is true that at the time of the appropriation no actual sales had been made, but this is explained by the fact that the asking price óf the pwner was $1,500 per lot, while the best price offered was only $1,000. He would not accept the price offered, and so the lots remained unsold. The testimony, however, clearly shows that the lots, streets and alleys were laid out and marked on the ground; that they were located in a section of the city desirable for building purposes; and that they were available and on the market for sale as building lots at the time the defendant entered and took possession under proceedings to condemn. The appellant constructed a wye through and over the lands of appellee, dividing one part thereof from the other, and appropriated all the lots laid out between the two legs of the wye. The land actually appropriated was a little over four acres. The legs of the wye were elevated several feet above the surface of the ground by reason of which access from one part of the tract to the other was made difficult and the value of the whole tract either for building or agricultural purposes was seriously affected. The main contention of appellant is that witnesses at the trial in the court below were permitted to estimate the value of the tract at the time of the entry upon the basis of a building lot proposition. In order to determine the question raised it will be necessary to consider the assignments of error in some detail. The first four specifications relate to the qualification of four different witnesses produced by the plaintiff to testify as to market value before and after the taking. The rule is that the possession and sufficiency of knowledge of the land, its area, improvements, the uses for which adapted, and general selling price in the neighborhood, are preliminary questions to be determined by the court before the witness should be permitted to express an opinion. This method was pursued at the trial and each of the four witnesses complained of were subjected to this preliminary test. The learned trial judge ruled that the witnesses were qualified to express an opinion as to market value, to which ruling an exception was taken and bill sealed. After the question of competency had been determined many questions relating to market value were asked these witnesses on direct and cross-examination, but no exception was taken nor bill sealed to any question asked nor answer given. As the record stands the only question before this court is that raised by the exception taken at the conclusion of the preliminary examination as to the qualification of the witnesses objected to. We have no doubt as to the competency of these witnesses. In such cases a witness must have such knowledge of the subject-matter as can reasonably be expected in view of the circumstances, the frequency or infrequency of sales, the location, adaptability of the land for any available purpose, and such other things as enter into a proper estimate of market value: Smith v. Railroad Co., 205 Pa. 645; Hope v. Railroad Co., 211 Pa. 401; Lally v. Railroad Co., 215 Pa. 436. The witnesses complained of in the present case fully meet the requirements of this rule and were competent to testify. After they were accepted as witnesses, if any question asked or answer given was improper, or in violation of the rules of law governing such cases, an exception should have been taken and bill sealed in order that each distinct question could be raised by a separate assignment. The matters complained of relate more particularly to the testimony of the witnesses given after the preliminary test of qualification had been passed upon, but this testimony was not excepted to and is not properly before us.

The fifth and sixth assignments relate to the refusal of the court below to strike out the testimony of a large number of witnesses because it is alleged that it was based upon their estimate of what said lands would ultimately bring if laid out in building lots and so sold, and not upon the market value of the land before and after the entry. These assignments are in plain violation of rule 29 of this court. Each error relied on must be specified particularly and by itself. Each distinct question must be made the subject of a separate assignment. Embodying in one assignment the alleged error of the trial court in refusing to strike out the testimony of four or more different witnesses is in violation of the rule: Brown v. Forest Water Co., 213 Pa. 440.

The seventh assignment also relates to the basis of estimating market value. At the trial a point was submitted asking the court to instruct the jury to disregard all the testimony of the plaintiff and his witnesses as to the value of the land based on their estimates of what might ultimately be realized from a sale of building lots because such valuation is speculative and too remote. The court answered, this point is correct if there be any testimony showing that the estimates were based on future sales. The appellant has nothing to complain of in this instruction. The point submitted was indefinite both as to the witnesses and their testimony and the court answered in the same general terms.

The first seven assignments go to the question of whether it is proper in estimating the value of land taken in condemnation proceedings to consider its availability for sale as building lots. Some of our recent cases are relied on to sustain the contention that it is not. Gorgas v. Railroad Co., 215 Pa. 501; Hamory v. Railroad Co., 222 Pa. 631, are cited for this purpose. What was said in these cases if not considered in connection with their facts might appear to give support to the view now earnestly pressed upon us. These cases, however, must be read and understood in view of the situation at the time of the entry. The entry in these cases was made on farm lands in rural districts and they were not immediately available for sale as building lots. The effort was made to add a fictitious value to the lands entered upon by undertaking to show that they could be divided into lots and might be sold for building purposes. It was apparent, however, that this was all speculative and had no real basis in fact. The lands appropriated were farm lands, and in determining their value it was necessary to limit the inquiry to those intrinsic elements of value existing at the time of the appropriation. In the case last cited a witness was asked on preliminary cross-examination if his estimate of what the property was worth at the time of the entry was based upon what it would bring if it had been laid out in building lots and all the lots had been sold at what he considered them worth, to which an affirmative answer was given. This court held that the method of estimating market value indicated by the answer of the witness was improper. This case was clearly right on its facts. The tract of land had not been laid out in lots. It was farm land. There was no immediate prospect of its being available for sale as building lots and hence such a method of estimating value would be purely speculative.

The test in every such case is, what was the market value of the land, at the time of the appropriation, for any available purpose. If it was then available for sale as building lots and had a market value for such purpose at the time of the entry it is proper to consider this element of value in determining what the property was then worth. All of our cases recognize that the use to which the land is best adapted may always be considered in estimating market value. If it has immediate value for sale as building lots it would be a very harsh rule which would deny the owner the benefit accruing to him by reason of having his property so favorably located. As we view the case at bar there is no doubt that a considerable portion of the land of appellee was available for sale as building lots and that it had a market value as such at the time of the entry. Under these circumstances it was proper to consider the present value of the land for this use at the time of the appropriation. Of course, future and speculative value as a lot proposition could not be considered, and as we read the testimony this rule was not violated. The remaining assignments of error are without substantial merit and do not constitute reversible error.

Assignments of error overruled and judgment affirmed.


text:
    Lehigh & Wilkes-Barre Coal Company, Appellant, v. Luzerne County.

      Taxation — Uniformity—Actual value of real estate — Assessed value— Average ratio — Coal land.

    1. In determining the proper valuation of a particular tract of land for taxable purposes, due regard must be had for the valuation of other real estate in the same district.
    2. In ascertaining the valuation of a particular tract of coal land for the purpose of taxation, if it appears as a fact that other real estate in the county had been assessed below its actual value the court must determine the average ratio of assessed to actual value as the basis for the valuation of the coal lands in question.
    3. The principle of uniformity is the guide post pointing the way for the local assessor who makes the assessment in the first instance; for the county commissioners when the returns are made and considered; for the board of revision when at the triennial assessment valúations are revised, corrected and equalized; and for the courts in making such orders and decrees as may seem equitable and just on appeal.
    Argued April 15, 1909.
    Appeal, No. 123, Jan. T., 1909, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1907, No. 614, on appeal from tax settlement in case of Lehigh & Wilkes-Barre Coal Company v. Luzerne County.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Appeal from tax settlement. Before Fuller, J.
    The case turned on whether the court had applied á proper rule in ascertaining the valuation of the coal lands in question.

      Errors assigned were in the following form:
    I. The court erred in overruling appellant’s first exception to the court’s conclusions of law'and fact, which exception and the ruling of the court thereon are as follows:
    1. The court having found in the sixth conclusion of law that, “If general custom or practice in a county has established as the basis of taxation not the full selling price but only a certain percentage thereof, this custom or practice, although bad and unlawful, must fix the standard for all, and any particular property, even though it be assessed at no more than real selling value, must enjoy the privilege of reduction to the established percentage;” the appellants respectfully except to the further finding in said sixth conclusion, “but no such fractional percentage can be considered a standard for use in the production of uniformity unless it is general, definite, and fixed by central authority.
    “ It must apply to the whole county, and not alone to certain muncipalities therein.
    “It must be an invariable factor applied throughout, and not merely an average obtained by addition and division of sundry different factors.
    “ It must be fixed by the commissioners sitting as a board of revision and acting upon returns made by assessors in the manner prescribed by law, and not fixed by each separate assessor according to his individual foolishness in fifty different districts.
    “It is not enough to show a general practice of assessment below value.” Answer: “After further reflection and consideration of able briefs, pro and con, we stand by our former conclusion that the valuation of $2,400 per acre was a just and equitable result, regardless of any possible flaws in the reasoning by which that result was obtained; and we adhere thereto as our finding of fact in the case under all the evidence, hereby overruling all exceptions.
    II. The court erred in overruling appellant’s second exception to the court’s conclusion of law and fact, which exception and the ruling of the court thereon are as follows:
    2. The court having found in its statement of facts, “4. The general practice of assessors throughout the county has been and is, and in this particular triennial assessment was, to assess below value,” the appellants respectfully except to the refusal of the court to ascertain and find the average rate of assessed value for county purposes. Answer: After further reflection and consideration of able briefs, pro and con, we stand by our former conclusion that the valuation of $2,400 per acre was a just and equitable result, regardless of any possible flaws in the reasoning by which that result was obtained; and we adhere thereto as our finding of fact in the case under all the evidence, hereby overruling all exceptions.”

      A. H. McClintock and F. W. Wheaton, with them G. R. Bedford and A. L. Williams, for appellant.
    If it is the custom to assess other properties below actual value, then some fair, just and equitable ratio must be fixed by the court which can be applied to the appellant’s coal lands.
    What is said by this court in the only case we can discover, which has arisen under these acts, allowing appeals, Rockhill Iron & Coal Co. v. Pulton Co., 204 Pa. 44, is most apt and most trenchantly expressed.
    Since the foregoing argument was in print, the case In re Assessment of D., L. & W. R. R. Co., appeal from Lackawanna county, was decided on March 29, 1909.

      June 22, 1909:
    What is there said by Mr. Justice Elkin is applicable to the position we have maintained that the court should have fixed the valuation of appellant’s coal land at the same percentage of actual or market value as was generally the rate of valuation for other properties.

      S. J. Strauss, with him Wm. C. Price and Edmund E. Jones, for appellee.
   Opinion by

Mr. Justice Elkin,

The two assignments of error in this case raise the question of whether the learned court below, having found as a fact that other real estate in the county had been assessed below its actual value, should have ascertained the average ratio of assessed to actual value as the basis for ascertaining the valuation of the coal lands in question for the purpose of taxation. In a recent case from Lackawanna county, not yet reported, and not decided when the case at bar was heard in the court below, it was held that in determining the proper valuation of a particular tract of land for taxable purposes, due regard must be had for the valuation of other real estate in the same district. We think that case rules this one on the question of uniformity here raised. The constitution provides that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. Real estate is the taxable subject with which we have to deal in the present case and the county of Luzerne is the district within the territorial limits of which the authorities levying the tax are prescribed. The mandate of the constitution speaks to all authorities having to deal with the subject of taxation. The principle of uniformity is the guide post pointing the way for the local assessor who makes the assessment in the first instance; for the county commissioners when the returns are made and considered; for the board of revision when at the triennial assessment valuations are revised, corrected and equalized; and for the courts in making such orders and decrees as may seem equitable and just on appeal. It is within the power of the local authorities to correct many of the evils complained of by requiring all real estate to be assessed at its full market value, and if this be done, no taxpayer could then justly complain that he is required to bear more than his proportionate share of the public burdens. Most of the controversies arise in this class of cases, because this simple and effective remedy has not been applied. When the attempt is made, as it too frequently is made, to assess one kind of real estate at full value, another at half value and another at third value, or even less in some instances, the cry of unjust discrimination is raised and resistance or protest surely follows. Such a method of valuation is repugnant to the constitutional provision requiring uniformity. A uniform standard of valuation must be adopted and a uniform tax rate must be applied. This is what the framers of the constitution meant, and in aid of this principle the legislature in 1889 provided that the courts on appeal shall have due regard for the valuation of other real estate in the same district. Actual market value is the proper standard to ascertain assessable value, and the acts of 1834 and 1842 fixed the standard of valuation for real estate at the price it would bring at a bona fide sale after public notice. In other words, market value, at public sale is the proper basis of valuation for the purpose of taxation. This is still the law, but in practical application it is scarcely ever enforced. The framers of the constitution no doubt had this thought in mind when the principle of uniformity was written into the fundamental law. All real estate should be assessed at its actual market value, but it must be assessed at a uniform standard of valuation throughout the district, even if that valuation is below market value.

It is the duty of the courts acting under the authority of the act of 1889 to enforce a uniform valuation of all real estate in the district when this question is properly raised on appeal. We therefore agree with the contention made by the learned counsel for appellant in this case. The difficulty of determining the ratio of actual to assessed value was adverted to by the learned court below, but it is not a sufficient reason for denying appellant the right to have its land assessed upon the same basis of valuation as other lands in the same district are assessed. These are difficulties with which courtb are frequently confronted and must be met and solved with an eye single to the legal rights of the parties. When the record is remitted, the court below must determine whether the evidence already offered is sufficient for the purpose of ascertaining this ratio. If it is, and this is largely and primarily a question to be determined there, the average ratio can be ascertained from the facts already established. If, however, the court below shall be of opinion that the evidence is not sufficient for this purpose, the case can be opened up and more evidence introduced.

Decree reversed and record remitted with instructions to hear and determine the question raised by this appeal in accordance with the views expressed in this opinion. Costs of this appeal to be paid by appellee.


text:
    Lehigh & Wilkes-Barre Coal Company’s Assessment.

      Taxation — Assessment of coal lands — Practice, C. P. — Method of assessment — Superficial acreage — Foot acre.

    1. When an appeal from a tax assessment fixed by the board of revision is perfected in the court of common pleas, it is the duty of that court to hear and determine all of the questions raised just as if it were litigation between.private parties. The court sits as a court, and is clothed with all the power of a court to hear and determine the issues involved, subject to the rules of practice and of law applicable to any other hearing of an analogous character.
    2. In a county having more than one judge whether the hearing shall be before a single judge, or before two or more judges, is a matter of convenience and practice. It is customary for a single judge to hear the case in the first instance, state his findings of fact and conclusions of law, and make such decree as he may deem proper. When exceptions are filed it is the duty of the court in banc to sit in review, hear the arguments and enter such final decree as said court may deem equitable and just upon the record presented and evidence produced at the hearing.
    3. A landowner cannot be deprived of his right under the act of 1889, to appeal from a tax assessment, of his lands because the assessment and records in the office of the county commissioner may have been indifferently kept and irregular.

      4. When an appeal is perfected in the common pleas the proceeding as to methods of procedure, proofs offered and admitted, findings of fact and conclusions of law is de novo.
    5. The orderly method of procedure is to offer in evidence the assessment of record in the office of the county commissioners, as approved by the board of revision, together with such other books and data as may be on file relating to the valuation of the tracts of land in question. This makes out a prima facie case showing the validity of the assessment. The complaining real estate owner then has the laboring oar to show by the weight of the evidence that he has been aggrieved by the valuation so fixed.
    6. The law requires that the valuation of a tract of land for the purpose of taxation shall be ascertained and determined upon the basis of market value, which means selling price at a bona fide sale after public notice. The practice is universal to use the acre as the unit of value in ascertaining the valuation of the whole tract, but this is the superficial, and not the foot acre. The conditions may be such that the foot acre method of ascertaining the value of the superficial acre may be properly adopted; but this method is exceptional and not of general application, and when applied to coal lands, the local conditions must be such as to give the whole coal area a present market value which can be ascertained upon some definite fixed basis.
    7. Where an order of the court of common pleas on appeal from a tax settlement is reversed by the appellate court, it will be the duty of the court below, when the record is remitted, to determine whether the testimony already taken is sufficient to warrant such findings as may be necessary to make a just valuation in accordance with the opinion of the appellate court. If it be deemed sufficient, the court may make proper findings of fact and conclusions of law from it. If, however, it is not deemed sufficient, the case may be opened up and new testimony introduced, from which proper findings of fact and conclusions of law may be made.
    Argued April 15, 1909.
    Appeal, No. 128, Jan. T., 1909, by Luzerne County, from order of C. P. Luzerne Co., Oct. T., 1907, No. 614, on appeal from tax assessment in reassessments of land of the Lehigh & Wilkes-Barre Coal Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Appeal from tax assessment.
    From the record it appeared that on June 29, 1909, Fuller, J., began the hearing of testimony, and on January 28, 1909, filed various findings of fact and conclusions of law, and a form of decree fixing the valuation of the lands in question at $2,400 per superficial acre. Subsequently the county commissioners with leave of the trial judge, filed exceptions to the opinion and decree of the judge, and requested that the same be heard by the judges sitting in banc. On February 23,1909, Lynch, P. J., filed an opinion concurred in by Halsey, J., refusing to consider the exceptions substantially on the ground that there had been no valid trial or proceeding by the board of revision, and that therefore there could be no valid appeal, and also that the trial had been held before one judge only, and was not in accordance with the proceeding authorized by the statute. Subsequently Ferris, J., and Fuller, J., filed opinions refusing to concur in the opinion filed by the president judge. On March 18, 1909, Fuller, J., filed the following order as the order of the court:
    After further reflection and consideration of able briefs, pro and con, we stand by our former conclusion that the valuation of $2,400 per acre was a just and equitable result, re- ' gardless of any possible flaws in the reasoning by which that result was obtained; and we adhere thereto as our finding of fact in the case under all the evidence, hereby overruling all exceptions.
    If there be any injustice, it falls not upon the county but upon the company, which, on legal ground, has been denied the benefit of any reduction below actual value, although most properties in the county enjoy some reduction, and if the general average ratio or reduction through the county could be legally applied to this particular property, the valuation of $2,400 would represent a mined value of $4,000, equivalent to a virgin value of $5,000. Bill sealed.
    Other facts appear by the opinion of the Supreme Court.

      Errors assigned were in overruling various exceptions to the adjudication and the decree of the court.

      S. J. Strauss, with him Wm. C. Price and Edmund E. Jones, for appellant,
    cited: Stevenson v. Coal Co., 203 Pa. 316; Steam Towboat Co. v. Starrs, 69 Pa. 36.

      June 22, 1909:

      A. H. McClintock and F. W. Wheaton, with them G. B. Bedford and A. L. Williams, for appellee,
    cited: Searle v. R. R. Co., 33 Pa. 57.
   Opinion by

Mr. Justice Elkin,

After full consultation it has been determined that the record in this case shall be remitted to the court below for further consideration. When the appeal from the assessment fixed by the board of revision was perfected in the court of common pleas, it was the duty of that court to hear and determine all of the questions raised just as if it were litigation between private parties. The suggestion made that in a proceeding under the act of 1889 on appeal the judge, or judges, sit as county commissioners, or as a board of revision, is without merit. The court sits as a court and is clothed with all the powers of a court to hear and determine the issues involved, subject to the rules of practice and of law applicable to any other hearing of an analogous character. In a coqnty having more than one judge whether the hearing shall be before a single judge, or before two or more judges, is a matter of convenience and practice. It is customary for a single judge to hear the case in the first instance, state his findings of fact and conclusions of law, and make such decree as he may deem proper. When exceptions are filed it is the duty of the court in banc to sit in review, hear the arguments and enter such final decree as said court may deem equitable and just upon the record presented and evidence produced at the hearing. This was not done in the present proceeding, and the learned court below committed clear error in refusing to do so. In some of our recent cases it has been pointed out that a record such as is here presented will be remitted in order that the court below may do its full duty in the consideration of the case. The position taken by the learned court below, sitting in banc, that the assessment and records in the office of the county commissioners are so irregular that an appeal would not lie is not tenable. Whatever the records may be, if no appeal had been taken, they would have been the basis for the tax levy, and the coal lands in question would have been assessed upon the valuation thus fixed. The act of 1889 gave to an owner of real estate who may feel aggrieved by the valuation of his property, the right to appeal from the decision of the county commissioners, or board of revision, to the court of common pleas of the proper county. The taxpayer must of necessity accept the record as he finds it, but his right of appeal under the law, cannot be denied him, because perchance the records of his assessment may have been indifferently kept. We therefore hold that the appeal in this proceeding was properly taken and that it was the duty of the court below to hear and determine the questions raised. The learned judge who did sit acted clearly within the line of his judicial duty in every step taken, and while we cannot concur in all of his rulings, and in some of his conclusions, the record shows that he gave intelligent and exhaustive consideration to the many vexatious questions presented for his determination.

Appellant invokes the presumption that public officers do their duty in aid of the contention that the proofs produced at the hearing are insufficient to warrant the court in finding as a fact that the valuation was too high and to sustain a decree reducing the same. The point is technical, and under the established facts without substantial merit. When the appeal was perfected in the court of common pleas as required by the statute, the proceeding as to methods of procedure, proofs offered and admitted, findings of fact and conclusions of law, was de novo. The orderly method of procedure is to offer in evidence the assessment of record in the office of the county commissioners, as approved by the board of revision, together with such other books and data as may be on file relating to the valuation of the tract or tracts of land in question. This makes out a prima facie case showing the validity of the assessment. The complaining real estate owner then has the laboring oar to show by the weight of the evidence that he has been aggrieved by the valuation so fixed. In the present proceeding it is not a question of the sufficiency of the evidence, but of the weight of it, about which there is but little if any doubt. It was sufficient to overcome the prima facie case in favor of the assessment made by the taxing authorities.

Appellant also complains that the judge who heard the case refused to adopt what is called the foot acre method of ascertaining the assessable value of these coal lands. The law requires that the valuation of a tract of land for the purpose of taxation shall be ascertained and determined upon the basis of market value, which means selling price at a bona fide sale after public notice. The practice is universal to use the acre as the unit of value in ascertaining the valuation of the whole tract, but this is the superficial and not the foot acre. The value of the superficial acre is the fact to be ascertained and determined, and any just basis of arriving at a correct' valuation of the superficial acre may be considered. The conditions may be such that the foot acre method of ascertaining the value of the superficial acre may very properly be adopted. In a similar case which came into this court on appeal from Lackawanna county, not yet reported, the foot acre basis was used with the consent and approval of counsel on both sides as well as of the court. It was apparent in that case that all of the interested parties considered the foot acre an equitable basis for ascertaining the value of the superficial acre. On appeal this court held that inasmuch as the parties had agreed upon this basis of valuation and the hearing had been conducted upon this theory, the method adopted should have been followed. It was treated as a means to an end, the end being to ascertain the proper valuation of a superficial acre as the unit of value to be applied to each separate tract or to the several tracts under consideration. This court did not say it was the only basis, or the best basis, or in every case even a fair basis, for ascertaining a just valuation for taxable purposes. Indeed, it is apparent, that in many instances such a basis -would work hardship and do injustice. This would be. especially true, if applied to the bituminous coal fields, where in the lower productive measures there are five different veins of coal. Some of these veins have great commercial value, others very little, arid others are practically worthless for any present use. In most instances one vein only is being worked, and it scarcely ever happens that more than two of these veins are considered available for mining purposes. The coal in some veins is of good quality, in others of inferior grade, and in others so full of impurities as to have no market value. Some of this coal is now accessible for commercial purposes, but vast areas will not be accessible for many years to come and some of it never will be available for any use. Under such conditions the foot acre basis of ascertaining value would be inequitable, unjust and unwarranted by practical business experience. It may be stated as a general rule that the foot acre basis of ascertaining assessable value is exceptional, not of general application, and when applied to coal lands, the local conditions must be such as to give the whole coal area a present market value which can be ascertained upon some definite fixed basis. We cannot agree with the position of appellant that it was the duty of the court below to adopt the foot acre method of ascertaining the value of coal lands for taxable purposes. While this basis might be used if the conditions warranted its adoption, it was within the power of the court to determine the value upon other bases and from testimony of a different character. The fact to be determined is the assessable value of the lands under consideration, and the courts must determine this question from the best testimony available.

When the record is remitted, it will be for the learned judge who heard the case to determine whether the testimony already taken' is sufficient to warrant such findings as may be necessary to make a just valuation of the coal lands in question in accordance with the views expressed in this opinion.

If it be deemed sufficient, his findings of fact and conclusions of law may be adopted, modified or changed in accordance with the views herein expressed. If the testimony already taken be deemed insufficient for this purpose, the case can be opened up and new testimony introduced. When this is done, exceptions can be filed and it will then be the duty of the court in banc to pass upon the exceptions and make such order or decree as may seem equitable and just.

Decree reversed and record remitted with instructions to proceed as hereinbefore indicated. Costs of appeal to this court to be paid by appellee.