text:
    Harbison-Walker Refractories Company v. Stanton, Appellant.

      Contracts — Restraint of trade — Sale of business — Monopoly—Interstate commerce.

    1. A covenant in a contract for the sale of a brick manufacturing plant, which provides that the seller shall not engage in manufacturing brick of the land made by the plant, in five different states for a period of fifteen years, without the consent of the purchaser, is not illegal, as being broader than is necessary to protect the business sold; nor does it create a monopoly void as against public policy and not enforceable in equity; nor is it void as in violation of the Sherman antitrust law.
    2. The presumption is that contracts are legal, not illegal, and the burden is on him who sets up illegality as a defense in a suit to enforce a contract to show how and why it is unlawful.
    3. The anti-trust statute was not intended to affect contracts which have a remote and indirect bearing upon commerce between the states.
    4. The Sherman anti-trust act has no application where the contract sought to be declared illegal concerns a legitimate business transaction and the unlawful restraint complained of is only incidental or collateral.
    Argued Nov. 4, 1909.
    Appeal, No. 160,
    Oct. T., 1909, by defendant, from decree of C. P. Allegheny Co., April T., 1908, No. 1,067, on bill in equity in case of Harbison-Walker Refractories Company v. William A. Stanton.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Miller, J., specially presiding found the facts to be as follows :
    The bill is for an injunction to restrain the defendant from the business of manufacturing or buying, selling or dealing in silica or clay fire brick in the states of Pennsylvania, Kentucky, New Jersey, Maryland and Ohio for a period of fifteen years from July 1, 1902, alleging he so contracted when with others he sold to the plaintiff the works of the Basic Brick Company for a consideration of $300,000, and that he is vioJating the contract by engaging in the sales of brick for other manufacturers.
    FINDINGS OF FACT.
    1. Prior to May 1, 1902, the defendant was the president and majority shareholder of the capital stock of the Basic Brick Company, a corporation under the laws of Pennsylvania, engaged in the manufacture of silica brick at Johnstown, Pa, The brick so manufactured were sold through the Fayette Brick Company in Pennsylvania, Kentucky, New Jersey, Maryland, Ohio and other states.
    2. On May 1, 1902, the defendant, as president and shareholder in said Basic Brick Company, entered into a written optional contract, later duly accepted, with Thomas L. Chadbourne, Jr., as is shown by exhibit “A,” attached to plaintiff's bill and made part hereof. This contract, inter alia, recites: “Services performed in the promotion of a consolidation of the fire brick manufacturers of the state of Pennsylvania," and then provides that in consideration of 1300,000 the company and its shareholders will convey all the property, shares of stock, interests and assets, as generally shown in the schedule thereto attached, with the following distinct provision:
    “Article 5. In consideration of the execution of this agreement by the consolidation purchaser, and by the vendors severally and in the event of the purchase of, and payment for, said property upon the terms of this agreement, and in further consideration of such purchase and payment, the vendors severally and expressly covenant, and agree with the consolidation purchaser, his heirs, executors, administrators, survivors or assigns, that they will not, directly or indirectly, individually or as officers, directors or agents of any corporation, firm or individual, engage or be interested in the business of manufacturing, buying, selling or dealing in silica or clay fire brick in the states of Pennsylvania, Kentucky, New Jersey, Maryland or Ohio for a period of fifteen years from and after the date of such purchase and payment, except with the consent, or in the employment of the said Brick Company or the parties to whom this contract may be assigned by the consolidation purchaser, it being understood and agreed that the vendors’ good will is one of the essential considerations for the execution of this contract by the consolidation purchaser. They are, however, in no way restricted in the manufacture of Magnesite brick, or dealing in Magnesite brick or any article made in whole or in part from Magnesite.”
    In June of the same year the defendant with other shareholders made a similar contract for the sale of the Fayette Manufacturing Company, a corporation dealing in the manufacture and sale of magnesite brick, for the consideration of $750,000, with the same provision, art. 5, as above set forth.
    3. In said contract Chadbourno reserved the right to make the proposed purchase for a corporation to be designated as the brick company; this corporation, known as the HarbisonWalker Refractories Company, the plaintiff, by assignment from Chadbourne, became the assignee and performed the said contract; it paid the entire consideration through Chadbourne, took deed direct for all the real estate of the Basic Brick Company, took possession of all its personal estate, performed all its outstanding contracts, and for a time operated the Basic Brick Works at Johnstown.
    Later, some four or five years ago, it ceased operations at Johnstown, dismantled the plant there, and from that time has done no business under the name of the Basic Brick Company, and has manufactured no brick there or elsewhere by virtue of the title acquired from the Basic Brick Company.
    4. In July, 1902, after the plaintiff company had acquired the plant and stock of the Fayette Manufacturing Company it employed the defendant as its sales agent at a salary of $12,000 per annum. He resigned this office in September, 1902, and engaged in other business, continuing, however, as a director in the plaintiff company. From July, 1903, to January, 1905, he was carried on the pay roll of the plaintiff company at a salary of $4,800 per year, payable monthly, with no assigned duties; during that time he made two trips to Europe for the plaintiff company, for which he was paid $10,000 and expenses.
    Beginning with January, 1905, he was re-employed as sales agent and assistant to the president of the plaintiff company at the former salary of $12,000 per year; this was afterwards increased to $16,000 per year, and so continued to January, 1908, when his resignation was requested, tendered and accepted.
    5. Since his dismissal he has been engaged in soliciting orders and making sales as an agent for a number of existing independent manufacturers of fire clay and silica brick, most of which are in Pennsylvania; sales made by him amount to about 20,000,000 brick of all kinds, aggregating in value about $360,000, and are made principally to Pennsylvania consumers, among whom are some of plaintiff’s customers.
    6. While the purpose of the purchase of the basic brick plant was the promotion of the consolidation of the fire brick manufacturers of Pennsylvania, as a result of which it did acquire three of the six largest manufacturing concerns engaged in the manufacture of silica brick, and subsequently acquired other concerns engaged in other lines of manufacture, so that it controls from sixty to seventy per cent of this class of brick manufactured and sold in Pennsylvania and elsewhere, and did increase the price about ten per cent after its acquisition of the various plants, the weight of the testimony does not justify finding as a fact that the plaintiff constitutes a monopoly and controls prices and products in restraint of trade.
    DECREE.
    And now, to wit, July 13, 1909, this cause came on to be heard at the above term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows: That the defendant, William A. Stanton, his agents, servants and employees, be and are hereby enjoined and restrained from engaging or being interested in, either directly or indirectly, individually or as officer, director or agent of any corporation, firm or individual, the business of manufacturing, buying, selling or dealing in silica or clay fire brick in the states of Pennsylvania, Kentucky, New Jersey, Maryland and Ohio until after June 30, 1917.
    Also that defendant pay the costs thus far incurred in this proceeding.

      Error assigned was the decree of the court.

      Willis F. McCook, with him B. J. Jarrett, for appellant.—
    The covenant is to abstain from manufacturing, buying, selling and dealing in silica and fire clay brick in five states named. The business sold was that of manufacturing silica brick only. The covenant exceeds the business sold. It is unnecessary and unreasonable for its protection and is therefore void: Henry Leetham & Sons, Limited, v. Johnstone-White, L. R. (1907), 1 Ch. Div. 322; Lufkin Rule Company v. Fringeli, 57 Ohio, 596 (49 N. E. Repr. 1030); Fleckenstein Brothers Company v. Fleckenstein, 71 Atl. Repr. 265; Nester v. Brewing Company, 161 Pa. 473; Mandeville v. Harman, 7 Atl. Repr. 37; United States v. Addyston Pipe & Steel Co., 85 Fed. Repr. 271; Townsend v. Jarman, L. R. (1900), 2 Ch. Div. 698.
    The contract sued on is a part of a plan or scheme to buy out and consolidate into the plaintiff substantially all of the manufacturers of silica brick in America. At that time all of the materials out of which silica brick were made were found in Pennsylvania and all of the works making them were located in that state. The scheme also included covenants from all of the persons interested in and having acquaintance with that business not to engage in it thereafter except in the service of the plaintiff. Therefore the contract sued on is in general restraint of trade and is part of a plan to create a substantial monopoly in the business: Monongahela River Consol. Coal, etc., Co. v. Jutte, 210 Pa. 288; Harding v. American Glucose Co., 182 Ill. 551 (55 N. E. Repr. 577); Cummings v. Union Blue Stone Co., 164 N. Y. 401 (58 N. E. Repr. 525); Cohen v. Berlin & Jones Envelope Co., 56 N. Y. Supp. 588; Craft v. McConoughy, 79 Ill. 346; People v. Chicago Gas Trust Co., 130 Ill. 268 (22 N. E. Repr. 798); Richardson v. Buhl, 77 Mich. 632 (43 N. W. Repr. 1102); United States v. E. C. Knight Co., 156 U. S. 1 (15 Sup. Ct. Repr. 249).
    The covenant involved in this case is a violation of the Sherman anti-trust act: Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 (20 Sup. Ct. Repr. 96); Swift & Co. v. United States, 196 U. S. 375 (25 Sup. Ct. Repr. 276); Montague & Co. v. Lowry, 193 U. S. 38 (24 Sup. Ct. Repr. 307); Wheeler Stenzel Co. v. National Window Glass Jobbers Asso., 152 Fed. Repr. 864.

      John M. Freeman, with him James E. MacCloskey and D. T. Watson, for appellee.
    — Clay fire brick and silica fire brick are used for the same purposes, are sold to the same customers, and compete with each other; and the covenant of appellant not to engage in either the silica or clay fire brick business is not broader than is necessary to protect the purchaser in the enjoyment of the thing sold: Anchor Electric Co. v. Hawkes, 171 Mass. 101 (50 N. E. Repr. 509); Harris v. Theus, 149 Ala. 133 (43 So. Repr. 131); United Shoe Machinery Co. v. Kimball, 193 Mass. 351 (79 N. E. Repr. 790); Oakdale Manufacturing Co. v. Garst, 18 R. I. 484 (28 Atl. Repr. 973); Thermometer Co. v. Pool, 51 Hun, 157; Nordenfelt v. Maxim, etc., Co., L. R. (1894), A. C. 535; Fisheries Co. v. Lennen, 116 Fed. Repr. 217; Pittsburg Stove & Range Co. v. Pennsylvania Stove Co., 208 Pa. 37; McClurg’s App., 58 Pa. 51; Monongahela River Consol. Coal, etc., Co. v. Jutte, 210 Pa. 288; Kradwell v. Thiesen, 131 Wis. 97 (111 N. W. Repr. 233);. Magnolia Metal Co. v. Price, 65 N. Y. App. Div. 276.
    The plaintiff company is not a monopoly at common law, nor does it in any way unlawfully restrain trade or competition: Pettibone v. United States, 148 U. S. 197 (13 Sup. Ct. Repr. 542); United States v. Trans-Missouri Freight Assn., 58 Fed. Repr. 58; Herriman v. Menzies, 115 Cal. 16 (44 Pac. Repr. 660); United States v. Patterson, 55 Fed. Repr. 605; United States v. American Tobacco Co., 164 Fed. Repr. 700; West Virginia Transportation Co. v. Standard Oil Co., 50 W. Va. 611 (40 S. E. Repr. 591); Fonotipia, Limited, v. Bradley, 171 Fed. Repr. 951.
    It seems quite clear that the Sherman anti-trust act, was not designed or intended to affect a contract by which a party in the sale of a business covenanted not to enter into that or similar business within certain specified localities: Cincinnati, etc., Packet Co. v. Bay, 200 U. S. 179 (26 Sup. Ct. Repr. 208); Anderson v. United States, 171 U. S. 604 (19 Sup. Ct. Repr. 50); Hopkins v. United States, 171. U. S. 578 (19 Sup. Ct. Repr. 40); United States v. Joint-Traffic Assn., 171 U. S. 505 (19 Sup. Ct. Repr. 25); Field v. Barber Asphalt Paving Co., 194 U. S. 618 (24 Sup. Ct. Repr. 784).
   Opinion by

Mr. Justice Elkin,

January 3, 1910:

The final decree entered by the court below is in the precise terms of the covenant to enforce which this bill was filed. It necessarily follows that if the parties were competent to make the covenant in the first instance and the subject-matter thereof is lawful, and no policy of the law or statutory requirement is violated, the court committed no error in enjoining the defendant from doing those things which he had covenanted not to do during the period fixed by the contract. The learned counsel for appellant ask if a contract to refrain from business is valid and enforceable in equity, where the scope of the covenant is broader than is necessary to protect the business sold. As an abstract proposition of law this inquiry may be answered in the negative, but it does not follow that the rule invoked should be applied under the facts of a particular case. In the case at bar there does not seem to be any valid ground to sustain the rule relied on. The learned judge who heard the case in the first instance and who considered all of these questions with painstaking care has clearly pointed out that the scope of the covenant was not broader than was reasonably necessary to protect the business sold, and in this conclusion we all concur. We have examined the cases relied on by appellant which hold that contracts in partial restraint of trade to be valid must be no more extensive than is necessary for the protection of the purchaser in the enjoyment of the business purchased, but find nothing therein stated or decided which would deny to the appellee company the benefit of the covenant for which it gave an ample consideration, and which appellant in good conscience as well as legal right should observe. It is further contended for appellant that the contract of which the covenant sought to be enforced is a part ivas intended to and in point of fact does create a monopoly in the business affected and is therefore void as against public policy and not enforceable in equity. The answer to this position by the court below was that neither in contemplation of law nor as a matter of fact did the contract in question create a monopoly in the sense of being an unlawful combination in restraint of trade. In this conclusion we also concur. Under the facts found by the chancellor and fully sustained by the evidence there was no monopoly of the business affected by the absolute purchase of the properties which passed to the consolidated company either in the etymological or legal sense. On this question the present case is absolutely ruled, as we view the facts, by Monongahela River Consol. Coal & Coke Company v. Jutte, 210 Pa. 288. That case was ably presented by counsel and fully considered by this court, with the result that the contention of the appellant there on the question of monopoly was not sustained. The rule there announced is sound, and we have not been convinced that there is any sufficient reason for disturbing it. An attempt is made to distinguish that case from the one at bar on the question of monopoly, but it is a distinction without a difference in the application of the principles involved and does not carry conviction to the mind of the court.

The last position taken by the learned counsel for appellant is that the covenant involved in the present case is in violation of the anti-trust law known as the Sherman act, and this defense is strongly and ably pressed upon us. The statute relied on was passed for the purpose of protecting trade and commerce among the several states or with foreign nations from unlawful restraints and monopolies, and has been the subject of such a wide range of judicial construction in so many cases in recent years that for the purposes of the present case nothing will be gained by elaborating the discussion. The writer of this opinion, speaking for himself, cannot understand why in any proper legal sense it should be considered an unlawful restraint of trade and commerce among the several states for the owner of a brick plant who sells its products and the products of other plants, in sections of two or three different states, to sell his plant, property and business to a proper purchaser for a large sum of money and at the same time and as part of the contract between the parties make a covenant with the purchaser not to engage in the same kind of business in the same territory during a fixed period. The rule of common honesty should require the seller with his large profits in his pocket to keep his covenant, and it seems to me courts should not be astute to raise up broad questions of public policy in aid of one whose sole purpose is to avoid the obligations of his contract. The trend of decisions in recent cases is in this direction, and it is a wholesome tendency in the interest of fair and honest dealings among men. There should be and is a distinction between a consolidation of properties by purchase for legitimate business reasons in order to increase production and reduce cost, and a combination of owners and properties under one management which in many instances stifles competition and arbitrarily increases prices. As we read the cases construing the anti-trust statute the rule established seems to be that it has no application where the contract sought to be declared illegal concerns a legitimate business transaction and the unlawful restraint complained of is only incidental or collateral. In the present case the contract concerns a legitimate business transaction, and nothing on the face of it imposes any restraints upon trade and commerce among the states unless the covenant of appellant not to engage in buying or selling in the states named should be so construed. This at most is only incidental to the general purpose of the contract and should not, in the opinion of this court, be permitted to defeat the rights of the contracting parties. The presumption is that contracts are legal, not illegal, and the burden is on him who sets up illegality a's a defense on a suit to enforce a contract, to show how and why it is unlawful. The contract may in terms or by necessary implication be violative of a declared public policy of the law or of a positive statutory requirement, or the established facts may show that such results follow its enforcement. In the case at bar the covenant sued on does not necessarily impose any restraints on interstate commerce because the product of each plant may be sold in the state of its domicile, and the established facts are not sufficient to show an unlawful interference with commerce among the states. As was said by Mr. Justice Holmes in Cincinnati, etc., Packet Company v. Bay, 200 U. S. 179, “A contract is not assumed to contemplate unlawful results unless a fair construction requires it upon established facts.” This case holds in substance that a covenant made, by the seller upon sufficient consideration not to engage in the business sold for a limited period within reasonable territorial limits as a part of the contract of sale and not as a device to control commerce does not fall within the operation of the anti-trust act of July 2,1890. This doctrine is recognized in United States v. Trans-Missouri Freight Assn., 166 U. S. 290; United States v. Joint-Traffic Assn., 171 U. S. 505; Robinson v. Suburban Brick Co., 127 Fed. Repr. 804; Metcalf v. American School Furniture Co., 122 Fed. Repr. 115. It has been frequently held by the federal courts that the anti-trust statute was hot intended to affect contracts which have a remote and indirect bearing upon commerce between the states: Field v. Barber Asphalt Paving Co., 192 U. S. 618; Hopkins v. United States, 171 U. S. 578; Addyston Pipe & Steel Company v. United States, 175 U. S. 211. The case at bar is within the spirit of the rule of this class of cases. The enforcement of the covenant against the covenantor, if in any proper legal sense it can be said to place a restraint upon interstate commerce at all, can only affect trade and commerce among the states in a remote, indirect and incidental manner. After careful consideration we have concluded that there is no rule of public policy, or of law, and no statutory restraint, the effect of which will be to deny appellee company the benefit of the covenant in question, and that the learned court below committed no- error in entering a decree enjoining appellant from doing those things which he hád agreed not to do. Assignments of error overruled and decree affirmed at the cost of appellant.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Riemann v. Ben Franklin Insurance Company, Appellant.

      Insurance — Fire, insurance — Conflict of evidence — Case for jury.

    In an action on a fire insurance policy where the loss is entire and where all the matters of fact alleged as a defense are directly contradicted by the testimony of the plaintiff, the case is for the jury.
    Submitted Nov. 4, 1909.
    Appeal, No. 29,
    Oct. T., 1909, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 630, on verdict for plaintiff in case of Augusta Riemann v. The Ben Franklin Insurance Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Evans, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $2,061. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      T. C. Pitcairn and J. 8. Ferguson, for appellant.

      Albert H. Moeser, for appellee.
   Per Curiam,

January 3, 1910:

This was an action on a fire insurance policy. The assignments relate to the refusal of the court to direct a verdict for the defendant and to enter judgment for it non obstante veredicto. The building insured was a dwelling house and the loss was total. The grounds of defense at the trial were that the house had been unoccupied for a period of over ten days immediately prior to the fire; that the plaintiff had not furnished proper proofs of loss within sixty days and that she had not furnished a magistrate’s certificate when required, as provided by the policy. It appeared from the plaintiff’s testimony that she had lived in the house until the evening of the day the fire occurred; that notice of the fire was given the company’s agent the same or the next day; that on the day following the company’s adjuster visited the premises and took her statement as to the character of the building and the cause of the fire, and that she had complied with all the requirements made and all the conditions of the policy. The issue was one of fact, which was necessarily for the jury.

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Tucker, Appellant, v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.

      Negligence — Railroads — Passenger — Station — Contributory negligence — Case for jury — Death.
    1. Where death results from an occurrence of which no one was a witness, the fact that the death was unwitnessed does not operate to protect one whose negligence can be shown from the general situation and circumstances to have been the operative cause. When these are such as to satisfy reasonable and well-balanced minds that the accident resulted from the negligence of the party charged, liability attaches.
    2. Where a passenger after alighting from a train on a dark night proceeds along a narrow unlighted walk, elevated above and close to the track, while the train from which he alighted was moving, and in some way falls between the wheels of one of the passing cars and is instantly killed, without anyone actually seeing the occurrence, the questions of negligence on the part of the railroad company and the deceased’s contributory negligence are for the jury.
    Argued Oct. 25, 1909.
    Appeal, No. 148,
    Oct. T., 1909, by plaintiff, from order of C. P. No. 4, Allegheny Co., First Term, 1908, No. 105, refusing to take off nonsuit in case of Fannie Tucker v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Carnahan, J.

      The facts are stated in the opinion of the Supreme Court.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      L. K. Porter, with him S. G. Porter and Frank H. Kennedy, for appellant.
    — Under the evidence in this case, we contend that the defendant was guilty of negligence: Hall v. R. R. Co., 36 Pa. Superior Ct. 556; Fox v. New York, 5 N. Y. App. Div. 349.
    The question whether or not plaintiff was guilty of contributory .negligence was a question of fact for the jury and not a question of law for the court: Penna. Tel. Co. v. Varnau, 5 Lane. L. R. 401; Schum v. R. R. Co., 107 Pa. 8; Menner v. Canal Co., 7 Pa. Superior Ct. 135; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408 (12 Sup. Ct. Repr. 679); Kane v. Ry. Co., 128 U. S. 91 (9 Sup. Ct. Repr. 16); Ry. Co. v. Cox, 145 U. S. 593 (12 Sup. Ct. Repr. 905).

      Wm. S. Dalzell, of Dalzell, Fisher & Hawkins, for appellee. — ■
    The burden of proving negligence is upon him who alleges it, except in a few cases where the doctrine of res ipsa loquitur applies, and this is not one of those cases: P. & R. R. R. Co. v. Hummell, 44 Pa. 375; Rotsell v. Warren Boro., 10 Pa. Superior Ct. 283; P. & R. R. R. Co. v. Schertle, 97 Pa. 450; Reese v. Clark, 146 Pa. 465; Welsh v. Erie, etc., R. R. Co., 181 Pa. 461; Alexander v. Water Co., 201 Pa. 252.
   Opinion by

Mr. Justice Stewart,

January 3, 1910:

Plaintiff’s husband had been a passenger on a train that arrived at Gregg station at 10 o’clock on the night of August 10, 1907, coming from the east. Upon the arrival of the train he alighted from the rear end of the first car. To reach the public crossing that led to his home, he would have to face eastward and follow the platform or walk which the defendant had provided for the accommodation of passengers arriving or departing. This he evidently did, with a most urn fortunate result; for while he was thus walking along the track, the train started westward and somehow or other he fell between the wheels of one of the passing cars and was instantly-killed. This walk or path is spoken of by the witnesses as a platform. In fact it was a walk covered with crushed limestone, extending along the railroad tracks for several hundred feet from the station eastward to the public road or crossing which was the approach to the station. Its level is thirteen inches above the ties of the track, and its side next the track is supported and kept in place by a plank wall, leaving a space between the edge of the walk and the nearest rail of the track of. the width of two and one-half feet. The distance from the edge of the walk to the body of a car occupying the track would be from eight inches to a foot. The night was dark, and the walk was unlighted. Plaintiff’s husband while moving eastward to the crossing was in advance of passengers who had alighted from the front of the same car. Two of these testified that while they could observe people moving in front of them in the path alongside the train, it was so dark that they could not recognize them; that an unusual sound attracting their attention one of them lighted a match, and by the light thus supplied they discovered upon the track the remains of plaintiff’s husband. As we understand the evidence this occurred when they had passed about half the length of the second car. Both say that it was so dark that although they were within a foot of the dead man, they could see nothing of him until the match was lighted. The negligence charged was failure to provide a safe and adequate platform or walk for passengers alighting and departing at nighttime. The questions suggested by the case were: (1) does the evidence show negligence on the part of the defendant? (2) does it show that such negligence, if any, caused or contributed to the accident? and (3) does it show contributory negligence on the part of the person who was killed? We pass the first without remarking upon it further than to say that the question was for the jury. The second was just as certainly for the jury, but a word of explanation is here required. No one witnessed the occurrence, and, therefore, no one can testify how it did actually happen. The case is not very peculiar in this respect. Accidents in which life is lost not infrequently occur unwitnessed. Such fact in itself does not operate to protect one whose negligence can be shown from the general situation and circumstances to have been the operative cause. When these are such as to satisfy reasonable and well-balanced minds that the accident resulted from the negligence of the party charged, liability attaches. Such is the doctrine distinctly laid down in Allen v. Willard, 57 Pa. 374, a case which in its general facts bears close resemblance to this. So too was the third question for the jury. It was not negligence per se for plaintiff’s husband to walk back along the platform when the train was moving, hie was doing nothing unusual, but just what all the alighted passengers were doing and what, so far as the evidence disclosed, was customary. Whether it was negligence under all the circumstances shown in the case, the jury alone could decide. The case calls for no further discussion here. The motion to take off the nonsuit should have prevailed. The assignment of error is sustained, and judgment reversed with a procedendo.


author: Mr. Justice Potter,

text:
    Wright’s Estate.

      Wills — Trusts and trustees — Accumulations—Illegal accumulations— Act of April 18, 1853, sec. 9, P. L. 503.
    A fund accumulated under testamentary directions, which are void by reason of the provisions of sec. 9 of the Act of April 18, 1853, P. L. 503, goes into the general residuary gift, if there is such a gift in the will, or in case of intestacy to the heir at law. The accumulations never go to the minor as such, but only to the minor when it appears that he is the person who would have been entitled thereto, either as residuary legatee or heir at law, if such accumulation had not been directed: Washington’s Estate, 75 Pa. 102; Stille’s Appeal, 4 W. N. C. 42, and Farnum’s Estate, 191 Pa. 75, overruled; and Weinmann’s Estate, 223 Pa. 508, followed.
    Argued March 25, 1909.
    Appeal, No. 54,
    Jan. T., 1909, by S. Megargee Wright, from decree of O. C. Phila. Co., July T., 1895, No. 104, dismissing exceptions to adjudication in Estate of John Wright, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Exceptions to adjudication.
    From the record it appeared that John Wright died January 23, 1895. By clause seven of his will he provided:
    “ Seventh: — I give and bequeath to my Executor hereinafter named, one hundred shares of the capital stock of the Philadelphia Trust Safe Deposit and Insurance Company and twenty-five shares of the capital stock of the Girard Life Insurance Annuity and Trust Company of Philadelphia, its successors and assigns forever, in trust, to collect and receive the dividends that may from time to time be declared and paid thereon and immediately thereafter to invest the same first in the purchase of additional stock of the said companies or either of them, or if for any reason my said Executor shall deem it best not so to do then secondly, in the purchase of shares of the capital stock of any other Company or Companies organized and incorporated for the same general purposes or, thirdly, in such other securities as are authorized and directed by law. And the income, dividends and interest arising from such investments to similarly invest as received and so to continue to accumulate the same until my granddaughter Margaret Megargee Wright shall attain the full age of twenty-one years and thereafter to pay her, my said grand' daughter, all the dividends that may from time to time be declared and paid upon the said shares of the said Capital Stocks bequeathed in trust as aforesaid, and all the interest, income and dividends upon said accumulations until the youngest living child of my said granddaughter (if issue she hath) shall attain the full age of twenty-one years and no longer. And upon the youngest living child of miy said granddaughter attaining the age of twenty-one years, then in trust to pay and divide the whole corpus or body of the trust estate, being the capital stocks as aforesaid given in trust and the accumulations of the dividends thereof, to and among the then living child or children of my said granddaughter who may then be living, if but one, then wholly to him or her, and if more than one, in equal parts and shares, transferring the same to him, her or them absolutely. And if my said granddaughter shall depart this life before her youngest living child shall attain the age of twenty-one years, then in trust, to pay the interest, income and dividends of the corpus or body of the trust estate unto all the child or children of my said granddaughter then living; if but one, then to him or her wholly, and if more than one, then in equal parts and shares until the youngest living child shall attain the age of twenty-one years. And if my said granddaughter, Margaret Megargee Wright shall depart this life without child or children her surviving, then from and immediately after her decease to hold the said capital stocks and all accumulations of dividends thereof in trust for the same purposes as are set forth in the next succeeding Item of this my last will, with respect to the stocks therein given in trust.”
    There was a similar trust as to Witney Wright, a grandson.
    By the tenth clause he provided:
    “Tenth: — Should both my grandchildren above named depart this life without lawful issue, then I declare all the said stocks and accumulations held in trust under the seventh and eighth items of this my Will, to be a part of my residuary estate.”
    There was also a residuary clause under which S. Megargee Wright, the only child of testator, and the father of Margaret Megargee Wright and of Witney Wright, became residuary legatee for life.
    Margaret Megargee Wright is a minor about eighteen years of age, and unmarried. Witney Wright is also a minor.
    The Girard Trust Company filed its account. It was audited on June 12, 1908, and the net amount of accumulations of income from the beginning of the trust to the date of the adjudication was found to be $32,729.48. The appellant claimed the accumulations of income to date, and those which would accrue until Miss Wright became twenty-one years of age, on the ground that the accumulations were undisposed of property, and that as to them, the testator died intestate. The auditing judge rejected the claim on the broad ground that accumulations during a minority have always been held to be the property of the minor and should be paid to him when he reaches twenty-one years of age.
    Exceptions were filed to the adjudication, and upon argument, in the court in banc, were dismissed. The court filed a short opinion in which it was stated that the case could not be distinguished from Stille’s App., 4 W. N. C. 42,-and it was a binding authority until reversed.

      Error assigned was in dismissing exceptions to adjudication.

      John G. Johnson, with him Henry K. Fox, for appellant.—
    It is submitted that in no reported case have accumulations been awarded to a minor during whose minority the income was accumulated, qua minor, but in each case the distributee of the accumulations has been a person who was, in fact, either next of kin, heir in intestacy or a residuary legatee. These only are the “persons entitled thereto, if such accumulations had not been directed.’’ Washington’s Est., 75 Pa. 102; Farnum’s Est., 191 Pa. 75; Stille’s App., 4 W. N. C. 42; Grim’s App., 109 Pa. 391; Howell’s Est., 180 Pa. 515; Martin’s Est., 185 Pa. 51, was where the persons who were to take the accumulated income could not be ascertained until the time of distribution designated by the testator. In such ease the gifts were contingent and the void accumulations went to the next of kin under the intestate law. Edwards’s Est., 190 Pa. 177, was where there was a direction to accumulate and to pay a portion of the income during the life of the child, and after the death of the child to pay all of the estate in the hands of the trustees at that time to the child or children of such child. It was held that the entire income went to the testator’s child absolutely as his next of kin.

      A. H. Wintersteen, for appellee. —
    The accumulations belong to the minor: Stille’s App., 4 W. N. C. 42; Carson’s App., 99 Pa. 325; Grim’s App., 109 Pa. 391; Howell’s Est., 180 Pa. 515; Farnum’s Est., 191 Pa. 75.
   Opinion by

Mr. Justice Potter,

January 3,1910:

This proceeding was the adjudication of the account of the trustee for Margaret Megargee Wright, under the will of John Wright, deceased. The question to be determined is the proper distribution of a fund accumulated under directions in the will, which were void, by reason of the provisions of sec. 9 of the Act of April 18, 1853, P. L. 503, ordinarily known as the statute against accumulations.

Counsel for both sides in this case admit the directions in the will were unlawful; but the appellant contends that the accumulated fund was to be regarded as undisposed of property, and as such should have gone to the next of kin. The auditing judge rejected this view upon the ground that accumulations during a minority have been held to be the property of the minor, and should go to him or her at maturity. In the opinion of the court in banc it is said that this case cannot be distinguished from Stille’s App., 4 W. N. C. 42, and feeling bound by that decision, it dismissed the exceptions in this case, and confirmed the adjudication. This has made it necessary for us to examine carefully the decision in Stille’s Appeal, to ascertain whether the grounds upon which it was based are tenable, and we are satisfied that they are not. The opinion in that case is very short, and simply affirms the decree of the court below, without any extended discussion of the principles involved. The court below there held that under the will, the income did not belong to the minor, and the direction to accumulate was therefore void; but in considering the question of the distribution of the fund unlawfully accumulated, he said that it was decided in Washington’s Est., 75 Pa. 102, “that if a will directed unlawful accumulations to be made during the minority of an infant to be capitalized, and the interest of the capitalized accumulations to be paid to the person, formerly an infant, during life, from and after the attainment of majority, the unlawful accumulations are the property of the minor.” And he then decided in conformity with this view of the decision, that the accumulations which had been unlawfully made should be the property of the minors. But in Washington’s Estate, the reason for declaring that the direction to accumulate was an excess, and therefore void under the act, was that the fund to be accumulated during the existing minority was not given to the minor. If she lived to be twenty-one years of age, she was to have the interest only which might thereafter accrue upon the accumulations, but no part of the accumulations themselves. The fund released from the accumulations unlawfully directed in that case, went to Annie Dorsey Washington, not because she was the minor in question, but because she was the person who would have been entitled thereto if such accumulation had not been directed. ' So that it would seem that the result in Stille’s Appeal was reached through a misapprehension of the real ground upon which the fund in Washington’s Estate was awarded to the minor. It was the residuary estate itself in that case which was the subject of the void provision. The report of the auditor shows that the whole estate was regarded, after the payment of debts and subject to annuities, as substantially a residue, and therefore, if there was an intestacy as to any part of the property, it must have gone to the next of kin. And it was as heir and next of kin that the minor in that case took the fund. As the decision in Stille’s Appeal was thus based upon a misapprehension of one of the points decided in Washington’s Estate, it cannot be regarded as authority upon the particular point in question. The same may be said of Farnum’s Est., 191 Pa. 75, in which by similar inadvertence, in supposed conformity with Washington’s Estate, it was announced that accumulations unlawfully made during a minority, are to go to the minor absolutely upon arriving at maturity. Under the act of 1853, such accumulations are to “go to and be received by such person or persons as would have been entitled thereto if such accumulation had not been directed.” As was said by Judge Penrose in Martin’s Est., 185 Pa. 51, “The inquiry, therefore, must in the first instance, always be, who, under the provisions of the will, as fairly interpreted, such persons are.” In Washington’s Estate it happened that under such inquiry the minor was found to be such a person. In the present case the minor is evidently not the person who would have been entitled, if the accumulation had not been directed; she is neither residuary legatee nor next of kin; nor is there a gift to her of any present vested interest in the principal of the estate which would carry with it the income as it accrues, but for the direction to accumulate it for capitalization. The statute permits of accumulations only during an existing minority, and for the benefit of the minor. If income is to be lawfully accumulated it must be that of the minor, and the fund must be paid to the minor upon arriving at the age of twenty-one. As the directions to accumulate in the present case do not meet these conditions, they are void, and the gift of the accumulations falls, as does the gift of the income. It does appear, however, that there is in the will a present, residuary gift, which carries with it everything which has not been otherwise disposed of in a valid way.

We think the present case is not to be distinguished in principle from Weinmann’s Estate, 223 Pa. 508, and that the doctrine therein elaborately discussed in the opinion of the court below, and affirmed by this court, is conclusive as to the question of the distribution of the fund unlawfully accumulated in this case.

The decree of the orphans’ court is reversed, and the record is remitted for further proceedings.


text:
    Nice’s Estate.

      Wills — Construction—Issue meaning children — Definite failure of issue.

    Testator gave the residue of his estate to his daughter “during her natural life and to her issue but should she die without issue then I direct that the said bequeathed estate of which she shall die possessed shall be equally divided among the children of my son share and share alike, and should any of them die leaving issue then I direct that said issue shall take said deceased parents share and if any of said children shall die without issue then I direct that the survivors of said children shall take such deceased child’s share.” Held, (1) that the word “issue” meant “ children”; (2) that a definite failure of issue was contemplated; and (3) that the daughter of the testator took only a life estate in the residuary estate.

      Argued March 2, 1909.
    Appeal, No. 53,
    Jan. T., 1909, by Lizzie N. Neff, from decree of O. C. Berks Co., May T., 1908, Ño. 22, overruling exceptions to adjudication in Estate of F. B. Nice.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of distribution.

      Thos. F. Snyder, of Snyder & Zieiber, with him C. H. Ruhl, for appellant.
    — Although the fund in court for distribution consists of personalty exclusively and no question as to the title to the real estate embraced in the residue is before this court in this appeal, it is the contention of the appellant that, inasmuch as the testator has disposed of his personalty along with the realty, without distinction, the paragraph of the will under discussion should be treated agreeably to the rules concerning the disposal and distribution of real estate: Robinson’s Est., 149 Pa. 418; Smith’s App., 23 Pa. 9; Paxson v. Lefferts, 3 Rawle, 59; Kleppner v. Laverty, 70 Pa. 70; Grimes v. Shirk, 169 Pa. 74; Pifer v. Locke, 205 Pa. 616; Carroll v. Burns, 108 Pa. 386.
    We contend that the proper construction of the words of the limitation over in our case is that they'import an indefinite failure of issue, that is, that upon the extinction of the whole line of Lizzie’s issue, whenever it may take place, the property shall go over: Eichelberger v. Barnitz, 9 Watts, 447; Train v. Fisher, 15 S. & R. 145; Potts’s App., 30 Pa. 168; Mengel’s App., 61 Pa. 248; Biddle’s App., 69 Pa. 190; Hoff’s Est., 147 Pa. 636.

      Cyrus G. Derr, with him Oliver M. Wolff, for appellee, cited:
    Hill v. Hill, 74 Pa. 173; Hoff’s Est., 147 Pa. 636; Lawrence v. Lawrence, 105 Pa. 335.
   Opinion by

Mr. Justice Potter,

January 17,1910:

The question presented by this appeal is the proper construction of the residuary clause of the will of Dr. F. B. Nice, which is as follows: “Paragraph 5. Item. As to the rest or residue of my Estates I give devise and bequeath to my Daughter Lizzie during her Natural life and to her Isue but should she die without Isue then I direct that said bequeathed Estates of which she shall die posesed shall be equally divided among the Children of my son Benjamin Nice, M. D. share and share alike and should any of them die leaving Isue then I direct that said Isue shall take said Deceased parents share and if any of said Children shall die without Isue then I direct that the Survivors of said Children shall take such deceased Childs share.”

The court below held that in the use of the word “isue,” the testator meant children, and that he also intended a definite failure of issue; and the conclusion reached was that Lizzie N. Neff, the daughter of the testator, took but a life estate in the residuary estate.

In the opinion of the learned judge of the court below, upon the adjudication, and upon the exceptions to the final decree, he bases his conclusion upon two grounds: first, that where as in this case, it appears that a testator uses the words “parent” and “issue” as correlatives, “issue” must be interpreted “children.” And second, that the words “dying without issue,” when applied to personal property, mean issue living at the death of the person to whom it is given in the first instance. The illustrations taken by the court from the body of the will, to demonstrate the sense in which the testator in the present case used the word issue, make it fairly apparent that he used it in the restricted sense of children. This construction is fully authorized by the authorities cited: Taylor v. Taylor, 63 Pa. 481; Sibley v. Perry, 7 Vesey, 522; Pruen v. Osborne, 11 Sim. 132; 2 Jarman on Wills, 109.

In Beckley v. Riegert, 212 Pa. 9.1, our Brother Fell said (p. 93): “ In a will ‘issue ’ prima facie means ‘heirs of the body’ and will be construed as a word of limitation, and ‘ dying without issue’ standing alone means an indefinite failure of issue. But this construction will always yield to an apparent intent on the face of the will that the words were to have a more restricted meaning and to be applied to descendants of a particular class or at a particular time and not to all the descendants of every generation.” We agree with the court below that such an intent is apparent in this case. The learned judge has set forth in his opinion a number of the decisions of this court, in which it has been held that in gifts of personalty, the words “die without issue” mean, die without issue at the death of the person, the failure of whose issue is spoken of: Clark v. Baker, 3 S. & R. 470; Eachus’s App., 91 Pa. 105; Snyder’s App., 95 Pa. 174; Moorhead’s Est., 180 Pa. 119. It will be noted also that in the case at bar, the gift is to the legatee during her natural life, and “to her issue.” There is, therefore, here a particular bequest to the issue, which distinguishes this case from those of Train v. Fisher, 15 S. & R. 145; Smith’s App., 23 Pa. 9; Mengel’s App., 61 Pa. 248, and Biddle’s App., 69 Pa. 190, cited and relied upon by counsel for appellant.

The assignments of error are dismissed and the decree of the court below is affirmed.


author: Mr. Justice Brown,

text:
    Weiser v. Freeman, Appellant.

      Deed — Condition—Building restrictions — Forfeiture—Light and air.

    Where an owner of unimproved land lying contiguous to his residence conveys the land “under condition” that a portion of the land immediately contiguous to the grantor’s residence shall never be built upon back of a certain line from the street and of a certain width, and it appears that this provision was inserted in the deed to protect the grantor in the enjoyment of light and air, and thereafter the grantee improves the land granted to him by erecting two buildings thereon, strictly in accordance with the condition in the deed, and conveys the same to different parties, a subsequent owner of the lot burdened with the building restriction cannot be enjoined from building thereon in violation of the condition, by the owner of the other portion of the originally unimproved land, on the theory that the original owner might forfeit the title to both lots as for condition broken, where there is nothing whatever in the pleadings to raise the question of forfeiture, or to justify the application of such theory.

      Argued Jan. 8, 1909.
    Reargued Jan. 20, 1910.
    Appeal, No. 243,
    Jan. T., 1908, by defendant, from decree of C. P. No. 4, Phila. Co., March T., 1907, No. 2,771, on bill in equity in case of Henry S. Weiser and Henry Hendricks v. George C. Freeman.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ., on reargument.
    Reversed.
    Bill in equity for an injunction. Before Attdenried, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree awarding injunction.

      Preston K. Erdman and Charles B. Joy, with them Paul Freeman, for appellant.
    — The clause mentioned by the trial judge created a building restriction in the nature of a covenant and not a condition. The grantor and his heirs have no right of entry for condition broken, and cannot enforce a forfeiture: King v. Ry. Co., 99 Va. 625 (39 S. E. Repr. 701); City Mission v. Appleton, 117 Mass. 326; Paschall v. Passmore, 15 Pa. 295; Bradley v. Trust Co., 7 Pa. Superior Ct. 419; Fidelity Ins., etc., Co. v. Fridenberg, 175 Pa. 500; Clark v. Martin, 49 Pa. 289; Crofton v. St. Clement’s Church, 208 Pa. 209; Orne v. Fridenberg, 143 Pa. 487; Cassidy v. Mason, 171 Mass. 507 (50 N. E. Repr. 1027); Post v. Weil, 115 N. Y. 361 (22 N. E. Repr. 145); Meigs v. Lewis, 164 Pa. 597; Landell v. Hamilton, 175 Pa. 327; Ayling v. Kramer, 133 Mass. 12; Watrous v. Allen, 57 Mich. 362 (24 N. W. Repr. 104).
    In Pennsylvania, where a building restriction is created by words apt at common law to create a condition, all rights, including any right of re-entry, pass with the conveyance of the dominant tenement, and do not remain in the original grantor and his heirs after they have conveyed away all their interest in the dominant tenement. The right to enter for condition broken passes as an appurtenance to the dominant tenement: McKissick v. Pickle, 16 Pa. 140; Fidelity Ins., etc., Co. v. Fridenberg, 175 Pa. 500; Siegel v. Lauer, 148 Pa. 236.
    Therefore, we submit that Mifflin and his heirs have no right to re-enter even if this were held to be a condition, but that all rights are now vested in the dominant tenement, viz., No. 1208 Walnut street. The owners of that property, viz., the dominant tenement, have not complained of the breach of the restriction and consequently the plaintiffs cannot do so.
    As examples of conditions enforced by the owner for the time being, where the restriction was in the form of a condition, see also: Hansell v. Downing, 17 Pa. Superior Ct. 235; Clark v. Martin, 49 Pa. 289; Crofton v. St. Clement’s Church, 208 Pa. 209.
    Considered as a condition, the condition was broken in 1894 and 1904 by the erection of buildings which violated its terms. That neither the plaintiffs, nor the defendant, were the owners of their respective properties, when this condition was first broken: and considered as a common-law condition, when once broken it is gone forever: Dumpor’s Case, 4 Coke’s Reports, 119; Sharon Iron Co. v. Erie, 41 Pa. 341.
    The plaintiffs’ lot and defendazzt’s lot have belonged to separate owners for over fifty years. The plaintiffs’ lot could not be held responsible for violation of the restriction on the defendazit’s lot, the plaintiffs’ lot having no part therein and not aiding it in any way.
    In England this clause would be void as offending against the rule against perpetuities: Dunn v. Flood, L. R. 25 Ch. Div. 629.
    There being no suggestion or intimation in this case that the heirs of the original grantor have taken any action upon the breach of this restriction, the plaintiffs have not the right to an injunction. The possibility of danger is too remote: Crofton v. St. Clement’s Church, 208 Pa. 209.

      John G. Johnson, with him Randolph Sailer, for appellees.—
    The condition in the Mifflin deed of 1828 is a technical common-law condition, for bz-each of which the grantor and his heirs may enter and enfoz-ce a forfeiture: Gray v. Blanchard, 25 Mass. 284; Clapp v. Wilder, 176 Mass. 332 (57 N. E. Repr. 692); Smith v. Barrie, 56 Mich. 314 (22 N. W. Repr. 816); Pabst v. Hamilton, 133 Cal. 631 (66 Pac. Repr. 10); Hamilton v. Elliott, 5 S. & R. 375; Sheaffer v. Sheaffer, 37 Pa. 525; Lehigh Coal & Navigation Co. v. Early, 162 Pa. 338; Fritz v. Menges, 179 Pa. 122; Sharon Iron Co. v. Erie, 41 Pa. 341; Post v. Weil, 115 N. Y. 361 (22 N. E. Repr. 145); Westenberger v. Reist, 13 Pa. 594; Watrous v. Allen, 57 Mich. 302 (24 N. W. Repr. 104).
    The condition has not been destroyed nor the right of reentry lost by the- heirs of Samuel Mifflin, by reason of any violation of its terms, nor is there any evidence in this case that the condition was ever broken. If such evidence did exist, it would not avail the defendant: Lehigh Coal & Nav. Co. v. Early, 162 Pa. 338; Lynch v. Gas Co., 105 Pa. 518.
    Forfeiture for breach of condition would involve the land of the plaintiffs, and they are entitled to equitable protection by injunction to prevent this result.
    In the United States common-law conditions do not offend against the rule against perpetuities, whatever may be the rule in England: Hopkins v. Grimshaw, 165 U. S. 342 (17 Sup. Ct. Repr. 401).
    The danger to appellees of the loss of their entire estate by breach of condition is constant and imminent, and entitles them to an injunction: Hood v. Penna. Society, 221 Pa. 447; Campbell v. Shrum, 3 Watts, 60; Blank v. Kline, 155 Pa. 613; Kelly v. Ry. Co., 200 Pa. 229; Whitney v. Union Ry. Co., 77 Mass. 359; Parker v. Nightingale, 88 Mass. 341; Linzee v. Mixer, 101 Mass. 512.
    The words of the deed of 1829 from James Cooper to Sarah K. Carpentier, read in the light of the surroundings of the parties and subject to the grant, disclose a clear intent to create a restriction over No. 1210 Walnut street in the nature of a covenant running with the land of plaintiffs, which equity will enforce by injunction: Landell v. Hamilton, 175 Pa. 327; Muzzarelli v. Hulshizer, 163 Pa. 643.
   Opinion by

Mr. Justice Brown,

January 31, 1910:

In 1825, Samuel Mifflin purchased at sheriff’s sale a lot of unimproved land situated on the southeast comer of Dean (now Camac) and Walnut streets, in the city of Philadelphia, containing in front on Walnut street sixty-four feet and extending in depth southward 110 feet to Chancellor street. When he made this purchase he resided with his wife in a house which formed part of her separate equitable estate. It stood on the lot now known as No. 1208 Walnut street, east of and immediately adjoining the vacant land which Mifflin had purchased at sheriff’s sale. In 1827 he conveyed to John Bonsall the western portion of this land, containing in front on Walnut street twenty-two feet and extending southward of that width, along the east side of Dean street, 110 feet to Chancellor street. That lot, however, is not involved in this controversy. In 1828, Mifflin sold to James Cooper the remaining portion of the land which he had purchased at sheriff’s sale. The lot sold to Cooper contained in front on Walnut street forty-two feet and extended of that width southward 110 feet to Chancellor street. In the conveyance to him the following appears in the habendum clause: “Under the condition that no building.or part of a building, other than steps, cellar doors, eaves, cornices, etc. (as specified in a certain indenture recorded in deed book, M. R. No. 13, p. 491), shall be erected on said lot within three feet of the line of the said Walnut street and under the condition also that no building or part of a building or other obstruction (except a bath house and privy and walls or fences not exceeding eight feet in height from the level 'of the ground) shall be built or erected on the easternmost, twenty-one feet of the said hereby granted lot further south than fifty-nine feet from the original line of the said Walnut street.” Upon the land purchased from Mifflin, Cooper erected two contiguous dwellings, one of them known as No. 1210 and the other as No. 1212 Walnut street. ‘ The house No. 1210 stands upon the eastern half of the ground and No. 1212 upon the western half. The house No. 1210 is twenty-one feet wide, is built without back buildings and lies wholly north of the line parallel with and fifty-nine feet south of the original line of Walnut street. The land between the south end of the house and Chancellor street was left open, except for privy and walls less than eight feet high, in accordance with the restriction in the deed from Mifflin to Cooper. The main building of the house No. 1212 as constructed by Cooper was twenty-one feet wide and forty-four feet deep. It had back buildings which extended southward about fifty-one feet and were in part eight feet wide and in part fourteen feet six inches wide. The western wall of this house contained no openings for windows. The back buildings were lighted by windows in their east wall. In 1829, Cooper and wife conveyed to Sarah K. Carpentier the lot of ground on which the house now known as No. 1210 has been erected. The deed to Mrs. Carpentier recited the conveyance to Cooper by Mifflin of the forty-two feet wide lot under the condition which has been quoted above, and granted the eastern half of the lot to Mrs. Carpentier, to have and to hold “under the conditions aforesaid.” The defendant is now seized in fee of the house and lot known as No. 1210 Walnut street, his title thereto relating back to that of Mrs. Carpentier. Each deed in his chain of title recites that the property is subject to the condition as set forth in the deed from Mifflin to Cooper, and the habendum in each deed is “to have and to hold under the conditions aforesaid.” Cooper died seized of the house and lot No. 1212, and that property is now owned in fee by the plaintiffs, whose title goes back to Cooper. The defendant began to erect, in the rear of lot No. 1210 south of the line fifty-nine feet south of the original line of Walnut street, a building covering that entire area and exceeding eight 1'eet in height from the level of the ground. This bill was filed to enjoin the erection of that building and, upon final bearing, the perpetual injunction prayed for was awarded.

The averment in the bill upon which the complainants based their right to an injunction is, that by virtue of the condition set forth in the deeds from Mifflin to Cooper, from Cooper to Carpentier, and the succeeding conveyances, culminating in the deed to the defendant, there was created an easement to light and air over the area named in said condition in favor of the premises No. 1212 Walnut street, which the owners of No. 1210 were restricted from diminishing or affecting, and that the said easement has at all times enhanced the value of No. 1212 and reduced that of No. 1210. The manifest purpose of the bill was the protection of this alleged easement, and the court below so understood its purpose, for the opening sentence of the adjudication is “The plaintiffs, aver that they are the owners of a certain lot of ground with respect to which the defendant’s adjoining lot is subject.to the servitude of a building restriction that the defendant is violating, and they pray that their easement over the restricted property may be enforced by injunction.”

Unequivocal findings of the court below are that, in inserting the condition in the habendum clause in his deed to Cooper, it was the intention of Mifflin to benefit the premises No. 1208, occupied by himself and family; that the condition was not intended in any way to benefit the premises No. 1212, now owned by the appellees, and that the insertion of the recital of the condition in the deed from Cooper to Carpentier was not intended to renew or create the condition in any way, but was a mere recital thereof for the convenience of the grantee and her successors in title. Equally unequivocal legal conclusions are that the condition relating to buildings on the easternmost twenty-one feet of the lot conveyed by Mifflin to Cooper created the restriction over premises No. 1210 in favor of the premises on the east — 1208—occupied by Mifflin and his wife, and that, as this condition as to the easternmost twenty-one feet was. not intended to benefit the property on the west — No. 1212 Walnut street — the benefit thereof cannot be claimed by the appellees, the present owners of that property. These findings and conclusions were manifestly correct, for when Mifflin conveyed the forty-two feet to Cooper there was no reason why he should have reserved any easement in favor of lot No. 1212, the westernmost portion of the property, but there was reason for continuing the enjoyment of light and air from the easternmost portion of the lot by the home occupied by himself and family. We are not called upon to say anything in vindication of the correctness of the findings of fact and conclusions of law referred to, for neither of them was excepted to by the appellees in the court below, and they are, therefore, conclusive upon them. Under those findings and conclusions the bill clearly ought to have been dismissed, for the appellees had no easement to be protected, but, upon a theory of its own, apparently not advanced by the appellees on the hearing, so far as we can gather from the record, the court directed the injunction to go out. That theory was that in the deed from Mifflin to Cooper a common-law condition had been imposed, the breach of which would give Mifflin and his heirs a right of re-entry upon the whole forty-two feet wide lot conveyed to Cooper, and that, to protect the lot of the appellees from forfeiture to Mifflin’s heirs, they were entitled to an injunction to prevent a breach of the condition by the appellant, the owner of the other lot.

The injunction did not go out to preserve to the appellees the enjoyment of an easement of light and air which they possessed, and yet the only issue raised by the pleadings was the right to such an easement and interference with it. There is no averment in the bill that the property of the appellees will be in any danger of forfeiture to Mifflin if the condition in his deed to Cooper should be broken, and yet that is the sole ground upon which the decree was made. The view of the learned chancellor through all his answers to the requests of the appellant for findings of fact and conclusions of law was that the condition in Mifflin’s deed to Cooper did not operate as a condition in favor of lot No. 1212, but gave to Cooper and his successors in title to lot No. 1212 the right to be protected from forfeiture which might result from a breach of the condition in the deed by the owner of lot No. 1210. With no averment of any danger of such a forfeiture of their property likely to result from the breach of what the court below has found to be a condition upon which the land was conveyed by Mifflin, there was error in awarding the injunction to prevent forfeiture. That question was not before the court, and, if it had been, there ought to have been some evidence of such danger, if the condition was enforcible by forfeiture. A mere remote possibility of such danger would be insufficient to entitle complainants to an injunction: Jewell v. Lee, 96 Mass. 145. The bill was not filed through fear of forfeiture, as clearly appears from its face, but to protect an alleged easement which the court below has found the appellees do not possess, and that was the end of their case as presented by the pleadings.

However clear it may be that Mifflin’s intention was merely to create an easement of light and air for the benefit of his wife’s adjoining property on the east, which was occupied by them as a residence, that he did not intend to create a personal right to enter for condition broken at the personal whim of himself or his heirs, without regard to their ownership of the adjoining property to be benefited by the restriction, and that certain land, and not a certain line of persons, was to be benefited, we do not now so decide, for two reasons: First, that question is not raised by the pleadings; and, second, if we should so now decide, our decision would not be conclusive upon the heirs of Mifflin, as they are not parties to this proceeding.

The decree of the court below is reversed and the bill is dismissed at the costs of the appellees.


text:
    Commonwealth v. Greene, Appellant.

      Criminal law — Murder—Erroneous charge — Presumption—Evidence.
    1. Although a verdict of murder of the first degree may be fully warranted by the evidence, it cannot be sustained if the court substantially charges the jury that,- if they find the prisoner shot the deceased, the burden is upon him to relieve himself from the law’s presumption that his offense is murder of the first degree.
    2. Whenever the commonwealth asks for conviction of murder of the first degree, it must overcome the presumption of second degree after having established a felonious homicide, even if committed by the use of a deadly weapon upon a vital part of the body of the deceased.
    3. Upon a trial for murder, where the prisoner offers no evidence, it is reversible error for the court to charge as follows: “The law holds that if a man uses a deadly weapon upon the vital part of another person, it is a presumption that he intended the consequences that would follow from, as, for illustration, from his pulling the trigger and sending a bullet crashing into the brain of some human being; that is, that he intended to kill, and if he so does, it is on him to answer to the jury aught that he may have in extenuation or qualification to relieve himself from that presumption of murder of the first degree.” ■

      Argued Oct. 4, 1909.
    Appeal, No. 261,
    Jan. T., 1909, by defendant, from judgment of O. & T. Phila. Co., March T., 1908, No. 68, on verdict of guilty of murder of the first degree in case of Commonwealth v. George A. Greene.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Indictment for murder. Before Kinsey, J.
    The opinion of the Supreme Court states the case.
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Error assigned among others, was (27) the portion of the charge quoted in the opinion of the Supreme Court.

      Edwin M. Abbott, with him Samuel W. Salus, for appellant,
    cited: Com. v. Mika, 171 Pa. 273; Murray v. Com., 79 Pa. 311; Com. v. Drum, 58 Pa. 9; Com. v. Deitrick, 218 Pa. 36; Com. v. Onofri, 18 Phila. 436.

      Joseph P. Rogers, assistant district attorney, with him Samuel P. Rotan, district attorney, for appellee, cited:
    Com. v. Green, 1 Ashmead, 289; Com. v. Drum, 58 Pa. 9; Com. v. Dietrick, 218 Pa. 36; Com. v. Sutton, 205 Pa. 605; Com. v. Kovovic, 209 Pa. 465; Penna. R. R. Co. v. Coon, 111 Pa. 430.
   Opinion by

Mr. Justice Brown,

February 14, 1910:

The appellant, George A. Greene, was charged in the court below with the murder of Edith Wonderly. From the case as presented by the commonwealth it appeared that about midnight on December 24, 1907, a man and woman were heard quarreling on the sidewalk at the corner of Carlisle and Brown streets, in the city of Philadelphia; that pistol shots were heard; that a man was seen pointing a revolver and shooting at an object under the awning at a store on the comer of the streets named; that he then walked up the street a short distance and, pointing the revolver at his own head, shot himself. The woman found upon the pavement under the awning was Edith Wonderly, who had been shot twice in the head. She and the prisoner were conveyed to a hospital, where she died from her injuries on February 18, 1908. He recovered and, upon an indictment found against him, was convicted of murder of the first degree.

No evidence was offered on behalf of the prisoner, and the only questions for the jury’s determination were whether the commonwealth had shown that he had shot the deceased, and, if so, whether his offense was willful, deliberate and premeditated murder. There could have been no doubt in the minds of the jury that he had slain the woman, and that his crime was a premeditated one appeared from a statement made by him, from his purchase of a revolver and cartridges shortly before the shooting and from letters written by him to the mother of the deceased and to other persons before the crime was committed. Though the verdict was fully warranted by the evidence, it cannot be sustained here if the trial judge committed substantial error in his instructions to the jury as to the law which was to be their guide. When a man’s life is at stake it is not to be adjudged forfeited by the law except under strict observance by court and jury of the right of the accused, however revolting his offense may appear to be, to be tried in accordance with long-settled and well-known principles. It is difficult to understand the failure of a trial court to follow these in a capital case. Such failure is almost certain to result in the delay of justice, often and not unnaturally misunderstood as a denial of it to the commonwealth, when a retrial must be ordered, that the accused may be tried according to the law of the land.

'Twenty-seven assignments of error are before us. All have been given the careful consideration required by the gravity of the case. The first twenty-six are dismissed with the simple comment that by no one of them has error been pointed out, and but for the twenty-seventh the judgment would be affirmed. The subject of that assignment is the following portion of the charge: “The law holds that if a man uses a deadly . weapon upon the vital part of another person, it is a presumption that he intended the consequences that would follow from, as, for illustration, from his pulling the trigger and sending a bullet crashing into the brain of some human being; that is, that he intended to kill, and if he so does, it is on him to answer to the jury aught that he may have in extenuation or qualification to relieve himself from that presumption of murder of the first degree.” The only inference to be drawn by the jury from this construction was that if they found the prisoner had shot the deceased, the burden was upon him to relieve himself from the law’s presumption that his offense was murder of the first degree. He offered no testimony and was not required to offer any to rebut a presumption that, if guilty, his guilt was murder of the first degree. The law’s humane presumption was that his offense rose no higher than murder of the second degree, and he was safe from conviction of the first degree until the commonwealth had overcome the presumption of second degree by affirmatively showing the existence of every ingredient and element of the first degree. From this burden the commonwealth is never relieved. Whenever it asks for conviction of murder of the first degree it must overcome the presumption of second degree after having established a felonious homicide, even if committed by the use of a deadly weapon upon a vital part of the body of the deceased: Com. v. Drum, 58 Pa. 9; Murray v. Com., 79 Pa. 311; Com. v. Mika, 171 Pa. 273.

In the present case it was the statutory duty of the jury, upon finding that the prisoner was guilty of felonious homicide, to fix the degree of his guilt. Indeed, it may be fairly said that, under the evidence, the real question for their determination was the degree. The law presumed that it rose no higher than the second, but by the court’s instruction, complained of in the twenty-seventh assignment, the jury were unmistakably told that the law’s presumption was that he was guilty of murder of the first degree and that it was for him to answer aught that he might have to say to relieve himself from that presumption. He answered naught and w'as not called upon to say anything to rebut such a presumption, for it did not arise from the mere killing of his victim, even though he killed her with a deadly weapon directed at a vital part of her body. In other portions of the charge the court correctly instructed the jury not only as to the law’s presumption of the degree of the prisoner's offense, but as to what was required of the commonwealth before it could ask for conviction of murder of the first degree, and it is insisted that the objectionable language ought not to be regarded as erroneous when read in connection with the rest of the instructions. There can be but one answer to this. Standing alone, it is palpably erroneous in a case involving a human life. Whether the jury followed or disregarded the erroneous instruction no one can tell. Instead of following correct instructions in other portions of the charge, they may have understood that there was a presumption of the prisoner’s guilt of murder of the first degree, that it was upon him to relieve himself from that presumption, and that, having said naught “in extenuation or qualification to relieve himself from that presumption,” it was their duty to convict him of murder of the first degree. Nothing is to be left to conjecture as to what instructions may have been followed by a jury, especially in a capital case. It is enough to know that they may have been misled by erroneous ones on a vital point: Com. v. Gerade, 145 Pa. 289; Com. v. Deitrick, 221 Pa. 7.

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