text:
    Hoffman v. Pittsburg.

      Mimicipalities — Increase of indebtedness — Expression of desire by municipal authorities — Acts of April 20, 1874, P■ P- 65, June 9, 1891, P. L. 252, and May 1,1909, P. L. 817.

    1. Before the authorities of a municipality can authorize an election to pass upon an increase in municipal indebtedness to an amount exceeding two per centum upon the assessed valuation of taxable property they must first act by giving expression, by “ordinance or vote,” of their desire for the increase, in compliance with the Act of April 20, 1874, P. L. 65, and its amendments.

      Jurisdiction — Supreme Court — Municipal loan.

      2. Whether the Supreme Court will assume original jurisdiction when the validity of a proposed municipal loan is questioned will in every instance depend upon the exigencies of the case.'

      Argued May 5, 1910.
    July 1, 1910:
    Bill for Injunction, Miscellaneous Docket, Supreme Court, No. 143, 1910, between Adam Hoffman for himself and other taxpayers v. The City of Pittsburg, William A. Magee, Jr., Mayor, and Eustace S. Morrow, Controller.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Injunction granted.
    Bill for an injunction to prevent increase of the indebtedness of the city of Pittsburg and that all proceedings and ordinances, etc., under the ordinance of September 24, 1909, be declared null and void.
    The facts appear in the opinion of the Supreme Court.

      Samuel McClay, with him Reed, Smith, Shaw & Beal, David A. Reed, Wm. M. Robinson and A. E. Anderson, for plaintiff.
    The proceedings to increase the indebtedness were irregular: Barr v. Phila., 191 Pa. 438; Major v. Aldan Boro., 209 Pa. 247; Wolff Chemical Co. v. Phila., 217 Pa. 215.

      A. M. Irnbrie for David G. Gregg, intervening plaintiff.

      C. A. O’Brien and Lee C. Beatty, for defendants.
    The proceedings to increase the indebtedness were substantially complied with: Major v. Aldan Boro., 209 Pa. 247; Barr v. Phila., 191 Pa. 438; Millvale Boro., 162 Pa. 374; Morrellville Borough’s Annexation, 7 Pa. Superior Ct. 532.
   Opinion by

Mr. Justice Brown,

Our assumption of original jurisdiction in this case is not to be regarded as a precedent whenever the validity of a proposed municipal loan is questioned. Whether such jurisdiction is to be assumed will in every instance depend upon the exigencies of the case.

The constitutional provision as to the indebtedness of a municipality is that it shall never exceed seven per centum upon the assessed valué of the taxable property therein, and there shall be no increase of its indebtedness to an amount exceeding two per centum upon such assessed valuation of property “without the assent of the electors thereof at a public election in such manner as shall be provided by law.” The first statutory provision regulating the proceedings to be taken by a municipality when undertaking to increase its indebtedness to an amount exceeding two per centum, and not exceeding seven per centum, upon the assessed valuation of taxable property is in the Act of April 20, 1874, P. L. 65. It is, that whenever the corporate authorities of any city, “by their ordinance or vote, shall have signified a desire to make such increase of indebtedness,” they shall proceed to give the notice required by the act that the question of the increase of the indebtedness will be submitted to the electors on the day of the municipal or general election, unless more than ninety days elapse between the date of “the ordinance or vote desiring such increase and the day of holding the said municipal or general election.” This provision reappears, totidem verbis, in the amending Act of June 9, 1891, P. L. 252, and is so repeated in the Act of May 1, 1909, P. L. 317. In view of this foregoing clear statutory provision, twice repeated, the first step to be taken by a municipality in undertaking to increase its indebtedness is action by its corporate authorities, by ordinance or vote, expressive of their desire that the increase shall be made. With the wisdom of this legislation courts have nothing to do. In Hoyt v. City of East Saginaw et al., 19 Mich. 39, in holding that the failure of the common council of the city to take certain preliminary action required by the statute had vitiated all that it did, it was said by Cooley, C. J., “We have no authority to treat any part of a legislative enactment which is not ambiguous in itself and is capable of reasonable application, as so far unimportant that it is a matter of indifference whether it is complied with or not. We must suppose the legislature saw sufficient reason for its adoption, and meant it to have effect; and whether the reason is apparent to our minds or not, we have no discretion to dispense with a compliance with the statute. . . . The declaration of the necessity for the improvement is a distinct act from and precedes the order that the improvement shall be made. It is the commencement of the proceeding, and is as indispensable to give the Council jurisdiction as is process or the voluntary appearance of parties in civil actions to give jurisdiction to a court. It is the first of several steps, which if duly and regularly taken, may result in fixing a lien upon the property of the citizen, and even in depriving him of it against his will. This step having never been taken, the whole proceeding is a nullity.”

The constitutional requirement is that municipal indebtedness is to be increased to an amount exceeding two per centum upon the assessed valuation of taxable property only with the assent of the electors at a public election in such manner as shall be provided by law, and the statutory provision is that before such election can be authorized by the municipal authorities they must first act by giving expression, by “ordinance or vote,” of their desire for the increase. If it were our province to pass upon the wisdom of this provision, we would commend it. To the select and common councils of a city, as their representatives, its electors commit the direct supervision of the municipal affairs and what ought to be done or not done by the city should always, in the first instance, be passed upon by those whose special duties are to inform themselves as to the municipal needs and who are presumed to be able to act with more intelligence than the ordinary elector upon whatever affects the welfare of the municipality. Councils are deliberative bodies, possessing means not possessed by the electors generally of obtaining knowledge upon every subject relating to the welfare of the city, and the statutory requirement that they first signify their desire for an increase of indebtedness gives to the electors whom they represent the benefit of their deliberate judgment, after duly considering the necessity of making improvements and the cost thereof, that the increase ought to be made. All this was denied the electors of the city of Pittsburg in the present case. Councils utterly ignored their duty of expressing to the electors their desire that the indebtedness should be increased and plunged in medias res by passing an ordinance authorizing a submission of the question of the proposed increase to the electors at the general election held on November 2, 1909. From one end of this ordinance to the other there is to be found no expression of the wish or desire of councils as to the proposed increase. Purposely or otherwise, they avoided the responsibility placed upon them by the law. What it required them to do before they could submit the question of increase to the electors, they failed to do, and the ordinance of September 24, 1909, must fall. The foundation necessary for it had not been laid. It is not to be taken as evidence of an expression of the desire of councils. That must have been expressed by a separate and independent action: Hoyt v. City of East Saginaw et al., supra.

The various other questions raised by the complainants need not be now considered. The authorities of the city of Pittsburg may or may not, by ordinance or vote, signify their desire to increase the city’s indebtedness, and, if they should, it is not for us now to act as an advisory board to them, telling them what they must subsequently do. They know what objections have been raised by these complainants, which may be renewed by them or other taxpayers, if subsequent municipal action on the same subject should be open to the same objections.

And now, July 1, 1910, upon due consideration of complainants’ bill as amended and the answers of the defendants thereto, it is ordered, adjudged and decreed that the ordinance purporting to have been adopted by the councils of the city of Pittsburg on September 24, 1909, and approved by the mayor of the said city on September 25, 1909, is null and void, and the said city of Pittsburg, William A. Magee, Jr., its mayor, and Eustace S. Morrow, controller thereof, and all other officers or agents of the said city are perpetually enjoined from creating, or attempting to create, any increase of indebtedness of the said city pursuant to the said ordinance or the election held thereunder, and from executing, issuing, advertising or selling any bonds of the said city pursuant to the said ordinance or election, the costs to be paid by the defendants.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Nieman’s Estate.

      Wills — Decedents’ estates — Construction—Absolute power of disposal— Unconsumed portion.

    Whore a testator by a clause in his will declares that the condition annexed to a gift and devise to his wife is that after her death all the estate, real, personal and mixed, of which she may die seized is to be disposed of by his executors in a certain manner and in a codicil declares “it is my will and intention that my said wife shall have full power and authority to apply such portion or portions of my said estate, the principal as well as the income thereof, to her own use during her life; and after her death such property of which she shall die seized, shall be applied as in my said will directed,” giving her also authority to sell and convey his real estate in fee simple, the widow takes an absolute estate to the extent that she consumes the property, but what remains unconsumed at the time of her death continues to be part of her husband’s estate, to be disposed of as such by his executors, and not by the personal representative of her estate.
    Argued May 5, 1910.
    Appeal, No. 100, Oct. T., 1910, by Renwick S. Martin, Administrator of the Estate of Johanna M. Nieman, deceased, from decree of O. C. Allegheny Co., March T., 1909, No. 306, in Estate of Gerhardt E. Nieman.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for the conveyance of real estate and personalty. Before Miller, J.

      The facts of the case were stated by Miller, J., to be as follows:
    Gerhardt. E. Nieman died December 9, 1888, testate.
    The provisions of his will were many and intricate.
    In the second clause he devises his entire residuary estate “to my beloved wife, Johanna M. Nieman, her heirs or assigns, to have and to hold the same as her own undisputed property, on the condition that she, my beloved wife, Johanna M. Nieman and August H. Lauman, as executrix and executor which I hereby appoint and constitute them to pay the following legacies, at the time named hereafter, to the following persons, to wit:” then follows (3d) a bequest to a nephew of $3,000, (4th) a bequest to the first-born child of a relative living in Germany, with certain limitations thereon.
    The fifth clause of the will read as follows:
    “Condition on which I, Gerhardt E. Nieman, give, devise and bequeath all my property to my beloved wife, Johanna M. Nieman, to wit: That after her natural life has ceased, all of the estate, real, personal and mixed of which she is seized at the time of her death shall be disposed of in the following described manner, by the executors named hereafter, to wit: That after her legal debts are paid and her funeral expenses defrayed including a tombstone just in shape and quality as my own shall be, $2000 shall be given to the German Evangelical Lutheran Mathias Church on North Avenue, Allegheny City, Pa.,” with certain detailed conditions therein.
    “6th. That all the remainder of her estate, be it real, personal or mixed of which she may die seized of shall be given and bequeathed to erect or support an Orphan Asylum of the Evangelical Lutheran Church confessing and practicing the doctrines of the unaltered Ausburg confession and the other symbols of said church contained in the Book of Concord of a. d. 1580,” with further directions and conditions annexed to said gift fully set forth in said will.
    He appointed John F. Bruggeman and August H. Lauman, executors of the whole and every part of his will which relates to the church and orphan asylum.
    In 1885, three years after executing the foregoing will, he executed a codicil, the important provisions of which are as follows:
    “1st. It is my will and intention that my said wife, Johanna M. Nieman, shall have full power and authority to apply such portion or portions of my said estate, the principal as well as the income thereof, to her own use during her life, and after her death such property of which she shall die seized shall be applied as in my said will directed.”
    By the second clause of the codicil he empowered his wife to sell and convey in as full manner as he could have done, all his real estate at such prices and at such times as she might deem best, with full power to deliver deeds for the same.
    By the fourth clause of the codicil he directed his executors in his will to pay out of his estate all collateral inheritance tax that might be assessed upon any legacies in said will without any deduction therefor.
    At No. 49, February Term, 1890, his wife, Johanna, and A. H. Lauman, executors appointed as to every part of his will excepting the directions as to the Lutheran Church and the proposed orphan asylum, filed their account. In the decree of distribution there made there was awarded “To Johanna M. Nieman, balance of said securities as per account filed as per terms of will of decedent, $85,707.29.”
    Johanna M. Nieman, the wife, died February 16, 1909, intestate, and letters of administration were granted to Renwick S. Martin.
    The entire amount of the balance, consisting of securities as decreed to her, were duly delivered; these consisted of stock in various insurance companies and banks, amounting to $33,225; school bonds $10,000, with the exception of $95.75 of cash, the remainder, $42,386.54, in bonds secured by first mortgages.

      Under the powers in the will she having possession and control of said decreed balance occupied the real estate situate in the twenty-second ward of Pittsburg until her death; purchased other real estate as shown in the petition, and at the time of her death having in her possession and control personal estate consisting of mortgages about $36,000; 647 shares of the capital stock in various banks, insurance and trust companies; bonds amounting to $20,000; collateral and other notes amounting to $28,362.32, and cash in bank $935.38, showing a large increase in the appraised value of the estate which was decreed to her at No. 49, February Term, 1890, aforesaid.
    She had no estate of her own at the time of her husband’s death, and .never had any other estate than that devised to her under his will.
    August H. Lauman, the surviving executor of the estate of Gerhardt E. Nieman, presented his petitions to the orphans’ court of Allegheny county at No. 306, March Term, 1909, setting forth that under the terms of the will of Gerhardt E. Nieman, all the estate Johanna M. Nieman died seized of should be distributed as part and parcel of the estate of Gerhardt E. Nieman, averring that the said Johanna M. Nieman took a life estate in the estate distributed to her and that she had no separate estate, other than "that so distributed to her under the will of Gerhardt E. Nieman, and praying for an order directing the administrator of Johanna M. Nieman to transfer, assign and make conveyance of all the estate of which Johanna M. Nieman died seized, to the petitioner, August H. Lauman, executor of the last will and testament of Gerhardt E. Nieman.
    The answer filed admitted the facts generally but denied that Johanna M. Nieman took a life estate and averred that her administrator was the proper party to administer the estate.
    On argument the court below, Judge Miller, dismissed the petition and filed an opinion, and on exceptions filed and argument of same, he reinstated the petitions and made a decree as prayed for, to which decree exceptions were filed by respondent and dismissed.
    July 1, 1910:

      Error assigned was the decree of the court granting the petition.

      Frank W, Hughey, for appellant.
    -The widow by the will took a fee simple: Good v. Fichthorn, 144 Pa. 287; Levy’s Est., 153 Pa. 174; Huber v. Hamilton, 211 Pa. 289.”
    At all events the widow was entitled to the income during her life: Levy’s Est., 153 Pa. 174; Walters’s Est., 223 Pa. 598; Connolly’s Est., 198 Pa. 137.

      Lyon & Hunter, for appellee.
    The widow did not take an absolute estate: Dickinson’s Est., 209 Pa. 59; Tyson’s Est., 191 Pa. 218; Taylor v. Martin, 20 W. N. C. 27; Henninger v. Henninger, 202 Pa. 207.
    The widow had no right to the income: Earp’s App., 28 Pa. 368; Moss’s App., 83 Pa. 264; Kemble’s Est., 201 Pa. 523.
    The bequest over after the widow’s death is not an accumulation: Washington’s Est., 75 Pa. 102; Hibbs’ Est., 143 Pa. 217; Young v. Lutheran Church, 200 Pa. 332.
   Opinion by

The claim of the appellant that his decedent took an absolute estate from her husband is based upon the second clause of the latter’s will. It contains a condition that certain legacies are to be paid, and these in turn have annexed to them conditions which require an examination of the whole will and codicil to discover the real intention of the testator in disposing of his estate. By the fifth clause of his will he declares that the condition annexed to the gift and devise to his wife is that after her death all the estate, real, personal and mixed, of which she may die seized is to be disposed of by his executors in the manner which he proceeds to describe. His wife had no estate of her own at the time of his death and never acquired any subsequently. . What she died “seized of,” in the language of his will, was his estate increased by unexpended income. The ten lots which she purchased and to which she took title were paid for out of the funds belonging to his estate. Passing from the will to the codicil, there is found a repetition of the testator’s intention . that his wife should not take his estate absolutely. He declares in the first clause, “It is my will and intention that my said wife, Johanna M. Nieman, shall have full power and authority to apply such portion or portions of my said estate, the principal as well as the income thereof, to her own use during her life; and after her death such'property of which she shall die seized, shall be applied as in my said will directed.” That she might be in the complete enjoyment of his real estate, with power to consume it, he gave her authority to sell and convey it in fee'simple. There is no direction to accumulate income, but a blending of it with the principal, with power to consume a part or the whole of either or both, and, to the extent that she might consume, an absolute estate was given to her. It did not extend to what was not consumed. What remained unconsumed at the time of her death continued to be part of her husband’s estate, to be disposed of as such by his executors, and not by her personal representative as her estate. The learned judge below tersely, but clearly, states the situation as follows: “The estate in her was absolute to the extent that she saw fit to consume or use it: Nieman’s Est., 131 Pa. 346. There was no limitation upon her power to appropriate, during her life for her own use. What she used was hers absolutely, and the remainder belonged to his estate: Gross v. Strominger, 178 Pa. 64; Trout v. Rominger, 198 Pa. 91. While the estate, principal and income, was in her for her own use, coupled with the power of sale and conversion, what she did not expend, consume or use he disposed of otherwise, and it must pass by his will: Dickinson’s Est., 209 Pa. 59.”

There is no dispute about the facts in the case, and, in view of the clearly expressed intention of the testator, that what his widow should not consume should continue to be his estate, which he disposed of by his will, the proceeding instituted by the appellee to get control of it was a proper one: Tyson’s Est., 191 Pa. 218. The assignments of error are overruled and the decree is affirmed at appellant’s costs.


author: Ms. Justice Stewart,

text:
    Mazaika v. Krauczunas et al., Trustees, Appellant.

      Church law — Trusts and trustees — Beal estate — Church property — Congregational elections — Practice—Equity—Issues of fact.

    1. It is the proper function of a chancellor to resolve doubtful questions of fact in the light of the evidence, not to avoid them by reaching a solution of the controversy through methods for which there is no legal warrant.
    2. In a proceeding to determine which of two contesting parties were elected trustees by a majority of the male members of a church congregation, of lawful age, at a meeting called to determine by whom the legal title to the church property should be held, the issues of fact presented must be determined by the chancellor upon the evidence produced and the court has no jurisdiction to direct and conduct an election, in court, to determine the real intent of the members of the congregation.

      Church law — Trusts and trustees — Bolder of legal title.

    3. A trustee, whether he be prelate or layman, who simply holds the legal title to church property is trustee for no other purpose and has nothing whatever to do with any of the affairs of the congregation or with the property itself, by reason of the fact that he holds the legal title.
    Argued May 9, 1910.
    Appeal, No. 8, Jan. T., 1910, by defendants, from decree of C. P. Lackawanna Co., Nov. T., 1908, No. 1, in case of Alex. Mazaika et al. v. Andrew Krauczunas et al., Trustees.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      July 1, 1910:
    Bill in equity to compel conveyance of church, property. The facts appear in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      William Jessup Hand, with him A. A. Vosburg, for appellants.

      John O. Johnson, with him Thomas P. Hoban and John P. Kelly, for appellees:................
   Opinion by

Ms. Justice Stewart,

This case is a sequel to the case of Kf auczunas v. Hoban, reported in 221 Pa. 213. Under the decree in the latter case Rt. Rev. M. J. Hoban, holder of the legal title to the land belonging to St. Joseph’s Lithuanian Catholic Congregation of the city of Scranton, was required to convey said legal- title to the defendants in the present proceeding, for the reason that a majority of the male members of the congregation, of lawful age, at a meeting called to determine by whom the legal title to the church property should be held, had selected these defendants for this special purpose. This decree was submitted to and the conveyance was made accordingly. Soon thereafter a counter movement was begun to restore the legal title to Bishop Hoban, as trustee. To this end a special meeting of the congregation was called, and held June 8, 1908, at which it was resolved “That Rt. Rev. Michael J. Hoban, Bishop of Scranton, be and is hereby chosen and designated trustee for said St. Joseph’s Lithuanian Catholic Congregation of the city of Scranton, Pennsylvania, to hold as such trustee all the property of said congregation, and the title thereto, in- accordance with the laws, rules, and usages of the Catholic Church in the diocese of Scranton and State of Pennsylvania.” Further, it was resolved, that the trustees then holding the title — these defendants —be requested, authorized and required to execute and deliver to the Rt. Rev. Michael J. Hoban, bishop of Scranton, trustee, a deed for all of said property. At the same meeting the plaintiffs were appointed to take such action in court, law or equity, as might be necessary to compel such reconveyance. The defendants having declined to reconvey in accordance with this action, the plaintiffs, acting under the authority given them at the meeting, filed this present bill to compel a conveyance. The defendants made answer averring, among other things, that the meeting of June 8, 1908, at which the above action had been taken, had not been regularly called; that it was not called by a committee duly elected by the congregation; that it was not held either at the time or place indicated in the call; that a great many members of the congregation had been forcibly and illegally excluded from the meeting; that others who were not members of the congregation were admitted, while certain of the respondents were excluded, and that members of the congregation opposed to any change of trustee who attempted to express their opposition were forcibly ejected from the meeting. It was further averred in the answer, that on the second day following the meeting of June 8, another meeting of the congregation was held pursuant to a call, at which a great majority of the male members were present; that 1,583 out of 1,586 present voted to retain the defendants as trustees, and expressed opposition to any change. To this answer replication was made and issue joined. As will be seen, the pleadings raised several questions of fact as well as of law. Without attempting to indicate all, these are among them: Was the meeting of June 8, 1908, at which action was taken favorable to the selection of Bishop Hoban, called by competent authority? Was it held at the appointed time and place? Was there present at that meeting a majority of the male members of the congregation, of lawful age, and did such majority unite in the action taken? Are the allegations true that members of the congregation in the minority party were forcibly excluded from the meeting, and that intolerance was exercised by the majority and freedom of discussion denied? Several of these questions apply as well to the meeting of June 10, at which action favorable to the defendants was taken. We have no findings of fact by the chancellor with respect to them, if we except this which appears in the tenth finding, "Neither side knew or had any adequate means of ascertaining the number of male members qualified to vote.” Instead of meeting the issues raised by the pleadings, pursuant to an agreement entered into between the parties, the chancellor proceeded to hold a new election, to determine whom the majority preferred to have act as trustee of the title. The reason for this action is thus stated by the chancellor, "This (the present proceeding) it is averred, is to enforce the action of the congregation in the exercise of its right of choice in the matter. Such action is alleged to have been taken June 8, 1908, by a majority of its adult male members at a meeting regularly convened for that purpose. The truth of this averment was challenged by the answer and the validity of the election denied. This appears to raise the only essential fact in dispute. Issue was formally joined and the parties went to trial March 9, of this year. In the course of two or three days it became apparent that if the question was to be determined by a review of the action taken at that meeting, the result would be unsatisfactory and doubtful. That led to a new election at bar by agreement of parties; but for that purpose continuance was had to a later date. In the meantime, the parties did what they could to ascertain who was entitled to vote. The voting began July 9 and continued several days.” Here was a clear abdication of judicial function and authority. The learned chancellor correctly enough states an essential question of fact to be determined; but he avoids determining it because, "by a review of the action taken at the meeting [of June 8, 1908] the result would be unsatisfactory and doubtful.” It is the proper function of a chancellor to resolve such doubtful questions in the light of the evidence, not to avoid them by reaching a solution of the controversy through methods for which there is no legal warrant. The inquiry as to the facts had proceeded no further than the taking of the testimony of two witnesses, when the judicial inquiry ceased, and the new election was entered upon, presided over by the chancellor, in open court, continuing uninterruptedly for ten days. The purpose of the election had no relation whatever to the action of the meeting on June 8, but was intended as a substitute, to determine whether in point of fact a majority of the male members of the congregation favored the election of Bishop Hoban as trustee of the title. We are not specially concerned about the manner in which this election was conducted, though it is open to much criticism, nor its results. These appear in the more than 600 pages of the appendix. It is enough to know that the election was extra judicial and conclusive of nothing. The parties to the controversy who consented to the election were without authority to bind the members of the congregation. The appellants were simply the holders of the naked legal title, destitute of any and all authority to act for the congregation. The appellees had no authority except that derived from the meeting that appointed them, and that was to secure the conveyance of a legal title to the church property to Bishop Hoban,' by virtue of the action there taken. They were without authority to submit the matter to the hazard of another election. Whether the election concluded those who participated in it, is not a question to be considered. It is conceded that all the members did not participate. It is a matter of no consequence that none of these are here protesting, if such be the fact, for in this proceeding the rights of the individual membership are not to be determined. The objection to the procedure that was observed, is that it offends against public law and policy. What the act of assembly contemplates as the means or method of determining whether a majority of the male members of lawful age favored the election of one not a layman, is a congregational meeting regularly called for that purpose, where the members can act unitedly in their associate capacity. Any other mode, of proceeding, as was said in Shortz v. Unangst, 3 W. & S. 45, would be subversive of the first principles of justice, and leave no safety for the members. Not only so, it was a violent departure from the usages of the congregation, to which neither agreement of the parties, nor sanction of the court itself can give validity. In the absence of any ordained rule or bylaw of the congregation governing such proceeding, the congregation’s own usages must govern. Twice before had this congregation been called upon to take similar action, and in both instances action was taken at a congregational meeting duly called. The decree entered in the case rests exclusively upon the result derived by the chancellor from the election held before him. Not only had the election no relation to the congregational meeting, but it was not ordered by the congregation, and was participated in by persons who had not been present at the meeting, and whose qualifications were determined by an authority outside of the congregation itself. The case must go back, to be proceeded with sec. reg.; the contending parties to be allowed to introduce such testimony as they can touching the issues raised under the pleadings. From that testiniony let the facts be found, and then, should an appeal to this court follow, we will be in a position to make final ruling, but not until then.

Without any disposition to prejudge this case in any of its legal aspects, and certainly not intending so to do, this much may be said which, if it prejudice at all, prejudices equally. If this litigation involves any possible result worth a moment’s controversy, it is concealed from our view. This may be a matter which concerns only the parties themselves; but we remark upon it for the reason that the case discloses sufficient to warrant an inference that neither side appreciates the insignificance of the stake for which they are contending. It is difficult to conceive of anyone bearing any relation whatever to a religious body, quite so incapable of intermeddling with the affairs of the congregation, as a trustee who simply holds the legal title to the church property^ Such an one is trustee for no other purpose, and has nothing whatever, by reason of the fact that he holds the legal title, to do with any of the affairs of the congregation, or with the property itself, no matter whether he be prelate or layman. Whoever he be, he holds the title not under or because of any rules or regulation of any ecclesiastical body to which the congregation is affiliated or connected, but under the law of the land which allows the membership to indicate him as trustee. Absolutely without power and without function, he is as far removed from active interference with the property or business of the congregation, as he could possibly be. The ownership of the church property is in the congregation to do with as it pleases, except that it may not divert it from the uses with which it is impressed. Here the uses of this church property have long since been declared, and no matter who may be trustee the property cannot be otherwise appropriated. Were the present decree to stand, and Bishop Hoban to receive a conveyance thereunder, such conveyance would invest him with no right of control over the property whatever. This much needs to be understood, for it is the law. This being so, it is apparent that a victory for either side would be utterly barren of any substantial results. It is a mistake to suppose that a trustee or trustees appointed simply to hold the legal title to church property correspond in any way to trustees elected or appointed to exercise active duty in controlling the affairs of the congregation; and we cannot avoid the conclusion that this unfortunate and expensive litigation has been entered upon because of this clear misconception. If the parties choose to prolong the controversy, it is their right so to do, which will not be questioned. The appeal is sustained; the decree is set aside, and the record is remitted to the court below to be proceeded with in due course. The costs on this appeal proper to be paid by appellees.


author: Per Curiam,

text:
    Mullen v. Wilkes-Barre Gas & Electric Company, Appellant.

      Negligence — Electric light company — Defectively insulated wire — Infant — Climbing tree.

    1. A boy of tender years who while at play climbs a chestnut tree standing on the sidewalk of a street, and is injured by coming in contact with a defectively insulated electric wire, is entitled to recover damages for his injuries from the electric light company maintaining the wire, where it appears that the tree stood on premises not belonging to the company; that the defective insulation of the wire in the branches of the tree had continued for a period of from four to six months before the accident; that during this period sparks had been emitted by the contact of wire and branches; and that in pleasant weather the children of the neighborhood were accustomed to assemble about the tree to play, to climb into it in the progress of their sports and games, and, in proper season, to .secure the nuts it bore.
    2. A company which uses such a dangerous agent, as a wire charged with an electric current, is bound not only to know the extent of the danger, but to use the very highest degree of care practicable, to avoid injury to every one who may be lawfully in' proximity to its wires, and liable to come accidentally or otherwise in contact with them.
    Argued May 9, 1910.
    Appeal, No. 209, Jan. T., 1909, by defendant, from judgment of the Superior Court, No. 52, March T., 1908, affirming judgment of C. P. Luzerne Co., Oct. T., 1905, No. 530, on verdict for plaintiff in case of Edmund Mullen, by his father and next friend, Festus Mullen, and said Festus Mullen, each in his own right, v. Wilkes-Barre Gas & Electric Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.;'see 38 Pa. Superior Ct. 3.
    The facts appear in the opinion of the Superior Court, by Head, J., as follows:
    The defendant corporation was engaged in furnishing electric light to the borough of Ashley. Its high tension current was carried through the streets by overhead wires strung on poles, which, on Main street, were located in or near to the sidewalk. At some little distance from the curb, in the sidewalk along that street, there stood a horse-chestnut tree. It seems to be conceded that the defendant had no property right of any kind in the tree or the premises on which it stood. Two of its wires, however, passed through the upper branches of the tree. The testimony practically established that the insulation of at least one of these wires had become worn away and that for a period of from four to six months before the accident, sparks were emitted by the contact of wire and branches, especially during wet or snowy weather. It also established that, in pleasant weather, the children of the neighborhood were accustomed to assemble about this tree to play, to climb into it in the progress of their sports and games, and, in proper season, to secure the nuts it bore.
    On a summer afternoon the plaintiff, a boy of tender years, was playing, with some companions, about the tree and climbed up among the branches. Whether any part of his body came into actual contact with the live wire is not made clear, but there is no room to doubt that he received an electric shock of such intensity as to render him unconscious. His body being supported by the forks of the tree, he did not fall, and, aid coming quickly, he was lifted down to the sidewalk where an examination disclosed marks, as of burns, at several places on his body.
    The record, as the case comes to us, does not require any discussion as to the extent of his injuries; it is sufficient to say that after his recovery this suit was brought and the trial resulted in a verdict and judgment- in his favor.
    It was not contended in the court below, nor is it here, that the doctrine of contributory negligence has any application to the case on account of the tender years of-the plaintiff. It was not denied there, nor is it here, that, under the evidence, the defendant would be visited with at least constructive knowledge' of the dangerous condition of its wire, and that, had an injury resulted therefrom to one, towards whom, at the time and place of the injury* the defendant owed any legal duty in respect to the condition of its wires, its responsibility would be made out. The single proposition urged upon us in the able printed brief of the appellant is that, conceding the obligation of the defendant to keep its wires safe as to those lawfully using the streets and sidewalks in the ordinary and usual way, as well as to those who, in the performance of some duty or the exercise of some right, might be required to approach them; no such obligation existed as to those, although children of immature age, who in the pursuit of pleasure or adventure, voluntarily placed themselves in dangerous proximity to its wires stretched twenty feet,above the ground. Many cases are cited as supporting this position, among them Thompson v. R. R. Co., 218 Pa. 444, and those therein reviewed. But all of these may be broadly distinguished from the case at bar because they dealt with situations where the plaintiffs were trespassers, or at most mere licensees upon the property of the defendants. Here, as we have already observed, the tree was the private property of the owner of the premises on which it grew and the children seem to have enjoyed, at least the permissive right from that owner, to play in its branches and gather the nuts they bore.
    The plaintiff, therefore, in climbing the tree, was in no sense committing any trespass or infringement upon any right of the defendant; nor did his act need the aid of any invitation, permission or license from the latter to keep it in the category of wholly innocent acts. Had the tree been an apple tree bearing luscious fruit and, had the owner, whilst picking that fruit, received the same injury as did the plaintiff here, could the defendant successfully contend it owed him no duty in respect to the condition of its wires? If the owner, instead of gathering his fruit himself, had expressly invited and authorized the plaintiff to take it for his own use or for distribution among his fellows, would the situation be materially different? Or can it be that the yoke of responsibility would be lifted from the shoulders of the defendant if the permission of the owner was general, to the boys of the neighborhood, rather than particular to one of them; was implied from his conduct rather than expressed in words?
    Is it true in such cases, or in the case at bar — if the supposed ones are not ejusdem generis — the defendant owed no duty whatever, in respect to the condition of its wires, to this plaintiff or to other children who were accustomed to use the tree as he did? In Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540, Mr. Justice Mitchell, defining the obligations of those who introduce into a community that dangerous agent known as electricity, said: “The company, however, which uses such a dangerous agent (a wire charged with an electric current) is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them.”
    In this carefully chosen language, quoted and adopted in Daltry v. Media Electric Light, etc., Co., 208 Pa. 403, our highest judicial tribunal has plainly defined the measure of the defendant’s obligation and described the class, to every member of which the law extends the protection that would be secured by the faithful discharge of that obligation. Why was not the plaintiff in that class? Upon what theory can the defendant successfully contend that he was not “lawfully in proximity to its wires”? Upon what principle of law or reason may it rest the claim that this boy was bound to repress the natural and wholly innocent impulse to climb up among the shady branches of the tree on a summer afternoon, to the end that it should be relieved of its obligation to remove or repair its dangerous wire? We can discover none.
    In Daltry v. Media Electric Light, etc., Co., 208 Pa. 403, it appeared that the plaintiff, a young’ boy, and his companions, were accustomed to play on a lawn owned by a gentleman who occupied the residence only during portions of the year. At the time of the accident the house was closed. When occupied it was lighted by electricity furnished by the defendant. The current was carried from the pole line in the street by a wire across and above the lawn to the building. Before it was vacated the company was requested to cut off its current so it would not pass into the empty house. “This was done by taking out the fuses at the transformer which rested against the side, and just beneath the eaves, of the house. The electric current was thus prevented from entering the house but not from passing through the wire extending from the house to the feed line at the street. After the current had been cut out the wire broke between the house and a tree on the lawn through which it passed and was tied to the branches of the tree. At the time of the accident it hung from the tree within twelve or eighteen inches of the ground.” The plaintiff, whilst playing on the lawn, accidentally came in contact with this live wire and was seriously injured.
    One of the grounds of defense taken by the company at the trial of the action which followed the injury was that the plaintiff was a trespasser on the lawn and therefore- it owed him n® duty at that place. In an elaborate opinion Mr. Justice Mestrezat shows the unsoundness of such a defense and again declares the existence of the obligation of a defendant under conditions closely resembling those presented by the case at bar. “If it be conceded that the boy was technically a trespasser as against Mr. Darlington who owned the premises, he was not a trespasser as against the defendant company who had neither the possession nor right of possession of the property. . . . Assuming then, as we must assume, that the defendant company was in possession of, and using, the wire for the purpose of transmitting its electric current, and that as against it the boy was not a trespasser, its duty to the children at the place and time of the accident was to exercise such care over the wire as was demanded by the great danger to which they were exposed. Having constructed the line across the lawn to the house in proximity to the carriageway, it knew that children as well as adults might frequent the way and, hence, the necessity for keeping the wires in proper condition and repair to avoid danger. It must be presumed that the company also knew what the evidence disclosed as a fact that children used the lawn of the premises near the gateway and in the vicinity of the wire as well as the street in front of the premises as a playground. Such conditions existed for a sufficient length of time to warrant the inference of notice to the company.” So similar in principle and fact is that case to this that the language quoted might have, with equal propriety, been written of the case at bar.
    Again in Kreiner v. Straubmüller, 30 Pa. Superior Ct. 609, this court had occasion to consider the rights of children playing in the street and the obligations towards them of those who placed in the streets such things as would likely become dangerous to little ones thus engaged. There the defendant, for his own convenience and without objection from the municipal authorities, was accustomed to keep a number of barrels piled on the sidewalk in front of his premises. The plaintiff, a small boy, playing with his companions in the street, climbed upon the pile which was insecure and was injured by the fall of the barrels. In speaking for this court Judge Henderson uses the following: “It is a well-established rule that those controlling property on, or immediately adjacent to, a public highway must have regard to the reckless and thoughtless tastes and traits of childhood. . . . Children, wherever they go, must be expected to act upon childish instincts and impulses; others, who are chargeable with a duty of care and caution toward them, must calculate upon this and take precautions accordingly. ... It was not unlawful for the children to play upon the street, and it cannot be said that they had no business there. The owner of the premises owed them a duty to provide against the consequences of their inexperience and youthful inclination to play upon his property placed on the sidewalk in a position which might attract them.”
    No one of the cases cited by the learned counsel for appellant is in conflict with the principles and rules enunciated in the cases from which we have quoted, or with the conclusion which must follow from their application to the case at bar. Of Guilmartin v. Phila., 201 Pa. 518,> the one nearest in principle to this one, Judge Henderson observed: “In the latter case the child was injured by a falling gate on which he had climbed. The city was not required to anticipate dangers resulting from the improper use of objects safe in themselves, and •for the use for which they are designed. In the same case, however, it is said: 'If an object was in itself dangerous, or might become dangerous if a child chanced to set it in motion while playing with it, or by running against it, there was a duty on the city to take such precaution as was reasonable, under the- circumstances, to prevent injury by it.’ ”
    We are therefore led to the conclusion that the plaintiff was lawfully playing in the public street. That whilst so doing he was entitled to such protection, as against the wires of the defendant and the current they carried, as would be afforded by its performance of the obligation defined by Mr. Justice Mitchell, in the opinion we have quoted. That the learned trial court could not have declared, as matter of law, that this protection had-been forfeited because he climbed into the tree, and that, in submitting the case to the jury in a charge of which there is no complaint, no error was committed.
    Judgment affirmed.

      July 1, 1910:

      Error assigned was in not giving binding instructions for defendant.

      John T. Lenahan, with him Richard B. Sheridan, for appellant.

      M. J. Mulhall, for appellee.
   Per Curiam,

On the main question presented by this appeal, whether danger to anyone was reasonably to be apprehended because of the condition of the defendant’s wire the case is admittedly close, but in the opinion of a majority of the court the judgment should be affirmed for the reasons stated in the opinion of Judge Head of the Superior Court.

The judgment is affirmed.


author: Mr. Justice Pottee, Mr. Justice Stewart,

text:
    Hillsdale Coal & Coke Company v. Pennsylvania Railroad Company, Appellant.

      Railroads — Common carriers — Illegal discrimination — Furnishing cars —Measure of damages — Instruction,
    1. In an action by a coal company against a railroad to recover damages for alleged illegal discrimination in furnishing transportation facilities, an instruction to the jury stating that “the only known method to get at data from which to estimate what a man is damaged by reason of discrimination in not furnishing cars or other facilities of transportation is to give the shipper discriminated against what would have been a reasonably fair profit on whatever is shown to be the fairly probable output of the mine discriminated against, less what was actually shipped from such mine,” presents a reasonable and proper measure of damages.
    2. The fact that the coal was left in the ground and might be available for future shipment, is immaterial, in the absence of any proof offered by the defendant that the plaintiff would realize for its coal, when shipped in the future, as much as it would have realized if shipped during the period of the action.

      3. In an action of tort a greater latitude is allowed by the court to the jury in the assessment of damages than is allowed in actions of contract. All damages which ordinarily, and in the natural course of things, have resulted from the commission of the wrongful act are recoverable.

      Railroads — Discrimination — Furnishing cars — Actions — Interstate Commerce Commission — Lis pendens.

    4. An action by a coal company against a railroad to recover damages for alleged illegal discrimination in furnishing transportation facilities in which plaintiff only claims to recover for profits on coal which it was prevented from shipping “to points and places within the state of Pennsylvania” is not barred by the pendency of a discrimination suit between the same parties before the Interstate Commerce Commission.
    Stewáet and Brown, JJ., dissent as to the measure of damages.
    Argued May 9, 1910.
    Appeal, No. 396, Jan. T., 1909, from judgment of C. P. Clearfield Co., May T., 1908, No. 223, on verdict for plaintiff in case of Hillsdale Coal & Coke Company v. Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Action to recover damages resulting from discrimination in furnishing transportation facilities.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $17,500.
    The court charged in part as follows:
    [The principal defense as we understand it, relied upon by the defendant company, is one of law or at least a mixed question of law and fact. This suit is brought to recover only that portion of the damages claimed to have accrued to the plaintiff company by reason of discrimination which relates to Pennsylvania business. It seems that in May, 1907, the plaintiff company began an action before the. Interstate Commerce Commission, a tribunal created by an act of congress, which proceeding was prosecuted before said commission and included a claim for money damages for alleged discrimination. . In the claim made before the Interstate Commerce Commission the same testimony was offered as was offered in this case, or at least practically the same data was furnished, and a claim there made for a very large sum of money by the plaintiff company. The plaintiff here contends that the sum there claimed for was the damages which they attempted to show accrued to the plaintiff company by reason of the coal trade outside the state, which would be properly interstate commerce business and to which the Interstate Commerce Commission probably had jurisdiction. Mr. J. O. Clark, on behalf of the plaintiff company, testified that the business of the plaintiff company outside the state, for which claim was made before the Interstate Commerce Commission was seventy-five and three-quarters per cent of their entire business, while their intrastate or Pennsylvania business amounted to only twenty-four and one-quarter per cent of the total, and that their claim as made up in the statement presented for action before the Interstate Commerce Commission, amounting to something over $127,000, was based entirely upon their foreign or interstate business, while the claim here is for twenty-four and one-quarter per cent of Pennsylvania business. The defendant, however, claims that because the plaintiff company claimed for such a large amount, covering the items and for more claim than its output capacity could possibly have been, that it is barred as a matter of law from claiming anything in this suit. For the present purpose of this case we overrule this contention as a matter of law and say to you, that if the plaintiff company has satisfied you that it has sustained damages by reason of the alleged discriminatory acts of the defendant company, it is entitled to recover at your hands against the defendant company in some amount. This amount is entirely for the jury. It may be only nominal or it may be for whát it has shown to you is its damage in dollars and cents based upon the data furnished you.] [4]
    [The question as to the measure of damages for such injuries as are alleged in this case is one for which we do not have any guide in former decisions. It is claimed, for instance, by the defendant, that a plaintiff, if discriminated against, still has his coal and therefore should not be allowed to estimate his profits. This contention, it seems to us, would logically lead to considerable difficulty, because it can be logically shown that if a man were discriminated against wholly and prevented from shipping coal at all, there could be no damages estimated on any kind of figures given or to be given. As we look at it, the only known method to get at data from which to estimate what a man is damaged by reason of discrimination in not furnishing cars or other facilities of transportation, is to give the shipper discriminated against what would have been a reasonably fair profit on whatever is shown to be the fairly probable output of the mine discriminated against, less what was actually shipped from such mine, and it is on this theory that the plaintiffs have presented the data which we have gone over here.] [8]

      Errors assigned were instructions of court and answers to points.

      John G. Johnson, Francis I. Gowen and Thomas H. Murray, with them James P. O’Laughlin and Hazard Alez. Murray, for appellant.
    Damages are not to.be measured by the possible, or even probable, profits which might have enured to the plaintiff on coal which it would have mined had it received cars: Watterson v. Allegheny Valley R. R. Co., 74 Pa. 208; Witherbee v. Meyer, 155 N. Y. 446 (50 N. E. Repr. 58); Allis v. McLean, 48 Mich. 428 (12 N. W. Repr. 640); Abbott v. Gatch, 13 Md. 314.
    The best rule seems to be that of Pittsburg Coal Co. v. Foster, 59 Pa. 365.

      David L. Krebs, with him A. M. Liveright, for appellee,
    cited: Hazleton Coal Co. v. Buck Mountain Coal Co., 57 Pa. 301; Wright v. B. & O. R. R. Co., 32 Pa. Superior Ct. 5; Imperial Coal Co. v. Port Royal Coal Co., 138 Pa. 45; Puritan Coke Co. v. Clark, 204 Pa. 556; Hitchcock v. Supreme Tent, 43 Am. St. Repr. 423; Wilson v. Wernwag, 217 Pa. 82; Workman v. R. R. Co., L. R. 32 Q. B. 79; Gulf, etc., Ry. Co. v. Martin, 28 S. W. Repr. 576; Houston E. & W. Texas Ry. Co. v. Campbell, 91 Tex. 551 (45 S. W. Repr. 2); Central, etc., R. R. Co. v. Morris, 68 Tex. 49 (3 S. W. Repr. 467).
    July 1, 1910:
   Opinion by

Mr. Justice Pottee,

In this action, the plaintiff, a mining corporation, sought to recover damages from the defendant company, for injuries resulting from the discrimination exercised against it by the defendant, in the refusal to furnish proper transportation facilities. The plaintiff alleged discrimination particularly in favor of certain competitive mines situated upon the same branch of defendant’s railroad, which were operated and controlled by David E. Williams & Company. In the statement of claim it was averred that plaintiff’s mines in Indiana county, known as Hillsdale No. 2 and No. 3, were fully equipped for mining coal, and had an actual output capacity of 800 tons per day from the two mines, if given the same pro rata distribution of cars as was awarded by defendant to the competing mines of Williams & Company. It was alleged that the actual output capacity of the latter mines did not greatly, if at all, exceed that of plaintiff. But that the defendant company, in violation of its duty under the law, did for the purposes of distributing cars to the several mines, rate the mines operated and controlled by Williams & Company with an output capacity of 2,300 tons per diem during the years 1904 and 1905, and in the early part of 1906, increased the same to 2,550 tons per diem, while it rated plaintiff’s mines with an output capacity of only 475 tons per diem during the same period of time. That the said rating, upon which was based the number of cars to be awarded, was an undue and unreasonable discrimination in favor of the mines of Williams & Company to the prejudice and disadvantage of plaintiff, and was a violation of defendant’s duty as a common carrier, to render fair and proportionate service to shippers on its lines, in furnishing facilities for transportation. That between October 1, 1903, and May 1, 1907, the plaintiff at its two mines received from defendant but 3,134 cars of thirty-five tons capacity each, while during the same period of time the defendants furnished the mines of Williams & Company with 26,691 cars of the same capacity. That plaintiff at its mine, Hillsdale No. 2, constructed at its own expense, a side track connecting with the track over and from which coal from Hillsdale No. 3 mine had for a long time prior thereto been handled by defendant to its Cush creek branch; but that defendant, by its servants and agents, spiked down the switches of the said side track leading to the tipple of mine No. 2, so that the same could not be used for a period of about eighteen months, entirely prohibiting plaintiff from shipping any coal from the said mine during that time.

The question of discrimination was submitted to the jury as one of fact, and the uncontradicted evidence was ample to warrant them in finding that the defendant subjected the plaintiff to unjust and unreasonable discrimination, both in the rating of the mines as to capacity, and in the allotment of the cars; and that this discrimination prevented it from making sale of a portion of its coal. As to the general policy of discrimination against the plaintiff, no evidence was offered with reference thereto, by defendant. No excuse was made for spiking down the switch to one of plaintiff’s mines, nor for its refusal to furnish cars to plaintiff on many days when they were furnished by it, to the competing mines. The trial in the court below resulted in a verdict in favor of plaintiff for $17,500; and from the judgment entered thereon, defendant has appealed. We see nothing in the record of which defendant can fairly complain, as to the manner in which the case was submitted to the jury on the questions of fact, as to the various acts of discrimination. In his charge, the trial Judge carefully reviewed the evidence as to the rating of plaintiff’s mines, and that of the competing mines of Williams & Company, and as to the failure of defendant to furnish cars, and their irregular distribution; as to the amount of coal shipped by the plaintiff, and the amount it could have shipped had its quota of cars been furnished, and the prices at which the coal could have been sold, and as to the cost of production and transportation. Nor is there any merit in the suggestion that the pendency of a suit between these same parties before the Interstate Commerce Commission, should be a bar to the present action. Plaintiff only claimed to recover in this action for profits on coal which it was prevented from shipping “to points and places within the state of Pennsylvania.” The evidence on the trial was restricted to such business only. The Interstate Commerce Commission would have no jurisdiction over a claim for damages sustained in connection with commerce wholly within the state, and therefore the suit pending before that body could not affect the plaintiff’s right to recover for the damages here claimed.

Plaintiff’s claim for damages was based upon the Act of June 4, 1883, P. L. 72, which forbids discrimination in the furnishing of facilities for transportation, and makes the offending common carrier liable for treble damages to the party injured. The claim in this case was, however, not pressed to the full extent, but was for single damages only. Counsel for appellant complain that in instructing the jury as to the mea'sure of damages to be applied, the trial judge said, “As we look at it, the only known method to get at data from which to estimate what a man is damaged by reason of discrimination in not furnishing cars or other facilities of transportation, is to give the shipper discriminated against what would have been a reasonably fair profit on whatever is shown to be the fairly probable output of the mine discriminated against, less what was actually shipped from such mine.” And it was upon that basis that the data of plaintiff was presented. We think the measure thus applied was reasonable and "proper. If the defendant, a common carrier, wrongfully refused to transport the coal of the plaintiff, it ought to place the plaintiff in the same situation it would have been in had the carrier performed its duty. The actual loss suffered by the plaintiff by reason of the defendant’s failure to discharge its duty, is a fair measure of the damage. Loss of profits in such a case must of course be clearly shown, and the proof should not present merely a speculative basis for the claim. In that respect we think the evidence was satisfactory here. In Wilson v. Wernwag, 217 Pa. 82, the principle is referred to with approval, as set forth in Hitchcock v. Supreme Tent, 43 Am. State Rep. 423, that “the profits lost con-, stitute the legitimate, measure of damages. The law is not so blind to justice as not to require the defendant to respond in damages, if there is any reasonable basis for their ascertainment.” The Interstate Commerce Commission seems to have adopted the rule that where discrimination is found to have been made by the carrier in the distribution of coal cars, damages are to be awarded in the amount of the profits that the shipper, would have gained by the sale of his coal at the place to which he desired to ship it, had he not been discriminated against, less the cost of transportation: Eaton v. C. H. & D. Ry. Co., 11 Interstate Com. Rep. 619; Paxton Tie Co. v. Detroit Southern R. R. Co., 10 Interstate Com. Rep. 422; Glade Coal Co. v. B. & O. R. R. Co., 10 Interstate Com. Rep. 226. Counsel for appellant argue that because, as a result of defendant’s discrimination, the coal of the plaintiff was left in the ground, and might be available for future shipment, and as there was no evidence that the prices which prevailed throughout the period of the action were abnormal, or in excess of those reasonably ruling, there was no room for the inference that the plaintiff would realize for its coal when it might be shipped in the future, less than it would have realized if shipped during the period of the action. But the burden was upon defendant, to show anything of this kind by way of mitigation of damages, if it could do so, and it offered no evidence for any such purpose. Counsel for appellant admit in their argument that plaintiff “showed the profit which would have been secured if it had not been prevented from making the sale;” but they suggest that the loss of this profit may not have been permanent, as it may be that the coal will be sold at some subsequent time, at equally as great a profit. But if such possible future profits could properly be set up in mitigation of the ascertained damages, which we doubt, it would be the duty of the defendant to show in its defense the probability and the amount of such profits. It attempted no such proof. It should be remembered, too, that “in the action of tort, a greater latitude is allowed by the court to the jury in the assessment of damages than is allowed in actions of contract.” And that “All damages which ordinarily and in the natural course of things have resulted from the commission of the wrongful act are recoverable:” 1 Addison on Torts (6th ed., Am. note), secs. 64 65. Many elements enter into the successful prosecution of a mining business beside the fact of the existence of the raw coal itself. That is only the material upon which those engaged in preparing it for market expend their time, energy and capital. The fact that plaintiff may be able profitably to expend time, energy and capital in the future in connection with the mining of the coal which it was prevented from using during the period of which complaint is made, by the discrimination of defendant against it, is no good reason why it should not now be compensated for loss shown to have been incurred by it in the past, through the wrongful acts of the defendant.

Plaintiff suffered more than a mere detention of its product, as it was kept from the market by the discrimination of defendant. It was put to the expense of care and maintenance of the mines and machinery and mules. Its working force was subject to disorganization, and many other items of expense were necessarily incurred. No other rule than the allowance of the reasonable profits it would have made, can fairly cover these items, and make good to plaintiff the loss resulting from the interruption of its business.

The assignments of error are overruled, and the judgment is affirmed.

Mr. Justice Stewart,

dissenting:

I cannot agree that the measure of damages here applied was correct. Punitive damages were not claimed, but single, and compensatory for the loss sustained by the plaintiff by reason of the defendant’s failure, for a definite period, to furnish it with as many cars for the transportation of its coal as it was entitled to under a fair and equitable allotment. In other words, the plaintiff complains that it was denied the privilege of a market for so much of its coal as represents the difference between what it did ship and what it would have shipped, had its quota of cars been furnished covering the period of the defendant’s default. This coal remained unmined and in place. The time came when the defendant lifted its embargo and the way was opened for the plaintiff to mine and ship its coal. Mining operations were continued. Presumably, this very coal which was left unmined because of defendant’s default was thereupon mined and shipped. If the prices then ruling for coal were lower than during the period of the embargo, the difference would accurately measure the plaintiff’s loss. If other incidents increased the loss, it was for the plaintiff to establish such additional loss. If the prices were so much in excess of the prices ruling during the embargo as to more than compensate for the delay, while such circumstances would not excuse the defendant for its default, it would follow that the plaintiff was without injury. The case assimilates itself to an action against a carrier for detention of goods, and the same measure of damages should apply. The measure adopted permitted recovery for damages purely speculative.

Brown, J., concurs in this dissent.


author: Mr. Justice Moschzisker,

text:
    McNitt’s Estate.

      Wilis — Probate—Issue devisavit vel non — Testamentary capacity— Evidence — Scrivener.
    1. An issue devisavit vel non is properly refused when the evidence to establish testamentary incapacity is not of a very positive character as to testator’s physical and mental weakness while the evidence to sustain the will is by the scrivener and the two subscribing witnesses who testify positively to the fact that the testator knew what he was doing at the time he signed the paper, that he had knowledge of his personal and real estate, that he possessed sufficient understanding and reason, and expressed his desire as to where he wished his property to go.

      Wills — Probate—Issue devisavit vel non — Undue influence — Evidence.
    2. An issue devisavit vel non on the ground of undue influence will be refused where the most that can be found from the testimony is that there was an opportunity for the exercise of influence.
    Argued May 9, 1910.
    Appeal, No. 271, Jan. T., 1909, by George A. Betzer et al., from decree of O. C. Mifflin Co., May T., 1908, No. 1, refusing issue devisavit vel non in Estate of John L. McNitt, deceased.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was decree refusing issue devisavit vel non.

      J. W. Gillespie and J. C. Houser, with them J. Mai. Gillespie, for appellants,
    cited as to the burden of proof: Robinson v. Robinson, 203 Pa. 400; Logan’s Est., 195 Pa. 282; Harrison’s App., 100 Pa. 458; Caldwell v. Anderson, 104 Pa. 199; Cuthbertson’s App., 97 Pa. 163; Boyd v. Boyd, 66 Pa. 283; Herster v. Herster, 116 Pa. 612; Reichenbach v. Ruddach, 127 Pa. 564.
    July 1, 1910:
    Cited as to mental incapacity: McTaggart v. Thompson, 14 Pa. 149; Swails v. White, 149 Pa. 261; Nonnemacher v. Nonnemacher, 159 Pa. 634; Irish v. Smith, 8 S. & R. 573; Pidcock v. Potter, 68 Pa. 342; Shaver v. McCarthy, 110 Pa. 339; Caven v. Agnew, 186 Pa. 314; Burke v. Maxwell, 81 Pa. 139; Reichenbach v. Ruddach, 127 Pa. 564; Knauss’s App., 114 Pa. 10; Rambler v. Tryon, 7 S. & R. 90; Yardley v. Cuthbertson, 108 Pa. 395.

      A. Reed Hayes, with him L. J. Durbin, for appellee, cited
    as to testamentary capacity: Landis v. Landis, 1 Grant, 248; Palmer’s Est., 219 Pa. 303; Grubbs v. McDonald, 91 Pa. 236; Caldwell v. Anderson, 104 Pa. 109; Boyd v. Boyd, 66 Pa. 283; Mulholland’s Est., 217 Pa. 65; Cauffman v. Long, 82 Pa. 72.
    Cited as to undue influence: Yorke’s Est., 185 Pa. 61; Wainwright’s App., 89 Pa. 220; Caughey v. Bridenbaugh, 208 Pa. 414; Englert v. Englert, 198 Pa. 326; Logan’s Est., 195 Pa. 282; Hook’s Est., 207 Pa. 203.
   Opinion by

Mr. Justice Moschzisker,

The register of wills refused an issue devisavit vel non to try the validity of the will of John L. McNitt, deceased, and the orphans’ court sustained the decision. The appellants contend that the court below erred in refusing to submit to a jury (1) the question of the testamentary capacity of the testator; (2) the question of the alleged undue influence over the testator of one J. H. Taylor, the husband of the appellee, the sole devisee under the will. '

Lizzie Taylor, to whom the testator left his estate amounting to $11,334.87, is the daughter of one of his deceased brothers, and the appellants are four children of a deceased sister. When the grandfather of these parties died he left him surviving four children in whom, his estate vested, the testator, the mother of the appellants, the father of the appellee, and one other son, James. After some litigation the mother of the appellants secured her share of the property amounting to $3,600, which was paid to her in 1865 by the testator and his brother James. This left the property vested one-fourth in the father of Lizzie Taylor and the balance in the testator and his brother James. Upon the death of James the three-fourths became vested in the testator, and upon death of her father the one-fourth became vested in Lizzie Taylor as his only heir, but she permitted the testator the sole use and enjoyment of the homestead property until his decease.

Considering all the circumstances the will in question was a natural one; but the point is, Was there error in not submitting the questions involved to a jury? We have gone over the record with care, and we cannot say that the court below was wrong in refusing an issue. The testimony all shows that the testator was in a physically enfeebled state at the time of the making of the will, and there is certain evidence which standing alone would justify a finding that his mind was in a consequent enfeebl ? condition at times during the day of the execution of the will; but taking the testimony as a whole we cannot say that the weight of the evidence was sufficient to sustain the contention of the appellants as to the lack of testamentary capacity when the will was signed. “Testamentary capacity is the normal condition of one of full age, and the affirmative is with him who undertakes to call it in question, and this affirmative must be established not in a doubtful but in a positive manner:” Grubbs v. McDonald, 91 Pa. 236. “The test of capacity is, that the testator’s mind and memory were sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed his will. Weakness alone will not invalidate a will, if there be mind and memory enough to understand the subject in hand and to direct the disposition of the property intelligently:” Thompson v. Kyner, 65 Pa. 368. Even though the testator may have had sinking spells before and after the making of his will, the uncontradicted testimony of the scrivener who drew the document shows that at the time the will was executed the testator had an intelligent knowledge of the act he was engaged in, of the property he possessed, of his relatives, and of the disposition that he desired to make of his estate; and this is all that is necessary. The rule is that where the trial judge feels on a review of the evidence that he would be obliged to set aside a verdict against the will, it is his duty to refuse to submit the issues to the jury. In this case the trial judge states: “The evidence to establish the reasons alleged is confined to the housekeeper and three or four witnesses whose evidence is not of a very positive character. While the evidence to sustain the will is by the scrivener and the two subscribing witnesses who testify positively to the fact that the testator knew what he was doing and that he had knowledge of his personal and real estate and that he possessed sufficient understanding and reason, and expressed his desire as to where he wished his property to go. In short the evidence establishes the essentials necessary for one to possess in order to make a valid will. If the evidence, which is before us, and which we have perused, was before a jury we would be compelled to direct a verdict in favor of the will, and we are, therefore, bound to sustain the finding of the register and refuse an issue.”

Undue influence to avoid a will must be of a kind that subjugates the mind of the testator to that of the person seeking to control it, so as to destroy the free agency of the testator at the time the will is made: Wilson v. Mitchell, 101 Pa. 495; Herster v. Herster, 122 Pa. 239; Caughey v. Bridenbaugh, 208 Pa. 414. On this branch of the case, it is enough to say that the testimony is wholly insufficient to support a finding that J. H. Taylor exercised any influence over the mind of the testator at the time of the making of the will. The most that can be found from the testimony is that there was an opportunity for the exercise of influence, and this we held insufficient to submit to a jury in Tyson’s Est., 223 Pa. 596.

The assignments of error are overruled, and the order of the orphans’ court refusing an issue is affirmed at the cost of the appellants.