author: Mr. Justice Stewart,

text:
    Interstate Securities Company v. Third National Bank, Appellant.

      Principal and agent — Authority of agent — Corporations—Directors.
    1. Where a bank dealing with a person in possession of bonds knows that such person is not acting on his own behalf, but as the agent and representative of the owner of the bonds, it is bound to inquire into the authority of the agent, and if it accepts the bonds in pledge, and it turns out that the agent had no authority to pledge them, the bank cannot complain if the owner repudiates the transaction; and in such a case it is immaterial that the agent was a director and manager of the bond department of the corporation which owned the bonds, if it appears iu fact that the agent had no authority to pledge them as collateral to a promise to pay the debt of another.
    2. ■ In an action of replevin by the owner of the bonds against the bank to recover the bonds, it is proper to admit in evidence the written instructions of the agent showing that he had no authority, where the fact of the agency, and the defendant’s knowledge of such fact at the time of the transaction, had been made to appear.
    3. In such a case there is no error in excluding an offer made by the defendant to show by the agent, that when acting for the plaintiff under written instructions, he sometimes acted upon his own discretion, not strictly in line with the instructions; and that when he did so, his acts were accepted by the company; and this is especially so where the offer does not suggest any discretion extending to the binding of the company by a promise to pay the debt of another, and the pledge of securities of the company therefor.
    Argued Jan. 12, 1911.
    Appeal, No. 208, Jan. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1904, No. 1365, on verdict for plaintiff in case of Interstate Securities Company v. Third National Bank.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Replevin for bonds. Before Brégy, J.
    The facts are stated in the opinion of the Supreme Court.
    The defendant presented the following points:
    3. The bonds in suit being negotiable, they would pass by delivery and the defendant was in no default in accepting them as security for the payment of the $1,011.80 and was not obliged to make inquiry as to the right of Mr. Ely to pledge them. Answer: Refused. [10]
    4. The bonds in suit being negotiable, the defendant was not bound to know or to inquire as to any limitations of the authority of Mr. Ely to dispose of them, and hence if the jury should find that Mr. Ely did exceed his authority in pledging the bonds, yet as they were negotiable, if the defendant did not know of any limitation of his authority, and there is no evidence that any officer of the defendant did so know, the defendant had a right to accept the bonds and hold them as security for the payment of the said sum of $1,011.80, upon the withdrawal of the sale of the $10,000 of the bonds of the West Chester, Kennett and Wilmington Electric Railway Company. Answer: Refused. [11]
    5. What was the object of the plaintiff or of Mr. Ely in preventing the sale of the $10,000 of the bonds of the West Chester, Kennett and Wilmington Electric Railway Company on April 20, 1904, or whether the plaintiff, or Mr. Ely, or any other person received any benefit or advantage by the withdrawal of said bonds from sale on that day, is not a matter of consideration in this case. Answer: Refused. [12]
    If the jury find that the bonds in suit were handed by Mr. Ely, on April 20, 1904, to Mr. Wood on behalf of the Third National Bank, as security for the payment of the sum of $1,011.80, under a promise by Mr. Ely that the said sum would be paid the next day if the Third National Bank would withdraw from sale the $10,000 of the bonds of the West Chester, Kennett and Wilmington Electric Railway Company advertised to be sold that day, for the defendant, by Messrs. Barnes and Lofland, and that relying upon that promise the sale of the said $10,000 of bonds was withdrawn, the jury should find for the defendant and that the defendant is entitled to hold the bonds in suit till the said sum of $1,011.80, together with interest from April 20, 1904, is paid to the defendant, subject to the deduction of such sums as the defendant has received for interest on the bonds in suit. Answer: Refused. [13]
    Under binding instructions the verdict was: “We, the jury, find that the title to the bonds in suit was at the time of suit brought, and now is, in the plaintiff, and we find for the plaintiff, and that the value of the two bonds in suit is $1,900, and that the plaintiff has sustained damages by the detention of said bonds in the sum of $603.34, and costs.” Judgment was entered on the verdict.

      Errors assigned were various rulings on evidence and instructions as above, and in directing the jury to find a verdict as quoted above.

      Theodore F. Jenkins, with him Humbert B. Powell, for appellant.
    The presumption being that the defendant was a bona fide holder for value the burden was upon the plaintiff to rebut that presumption. It was therefore a question for the jury as to whether such presumption had been overcome: Penn. Bank v. Frankish, 91 Pa. 339; Phelan v. Moss, 67 Pa. 59.
    There was a presumption of Mr. Ely’s authority, from his being a director and officer of the plaintiff: Singer Mfg. Co. v. Christian, 211 Pa. 534; American Car & Foundry Co. v. Water Co., 218 Pa. 542; Adams Express Co. v. Schlessinger, 75 Pa. 246.
    An agreement by an agent of a corporation made in the course of the business intrusted to him is binding on the corporation although in excess of his instructions: Adams Express Co. v. Schlessinger, 75 Pa. 246; Hill v. Trust Co., 108 Pa. 1.

      Wm. Hepburn Russell, with him Wayne P. Rambo and Ormond Rambo, for appellee.
    The plaintiff’s agent, Ely, was a special agent: Ryman v. Gerlach, 153 Pa. 197; Westinghouse v. German Nat. Bank, 188 Pa. 630; Lance v. Deacon, 15 Phila. 318; Rafferty v. Haldron, 81* Pa. 438; Reading R. R. Co. v. Johnson, 7 W. & S. 317; Thompson v. Sproul, 179 Pa. 266; Campbell v. Home Assn., 163 Pa. 609.
    The defendant bank knew the bonds belonged to plaintiff company: Buffalo Loan, Trust & Safe Dep. Co. v. Medina Gas & Elec. Lt. Co., 162 N. Y. 67 (56 N. E. Repr. 505).
    The defendant received and holds bonds as collateral for interest on the debts of a third person: Sloan v. Brown, 228 Pa. 495; Kern’s Estate, 176 Pa. 373; Garrard v. R. R. Co., 29 Pa. 154; Fisher v. Brown, 104 Mass. 259; Germania Safety-Vault & Trust Co. v. Boynton, 71 Fed. Repr. 797; Bank of New York National Banking Association v. American Dock and Trust Co., 143 N. Y. 559 (38 N. E. Repr. 713); Hanover National Bank v. American Dock & Trust Co., 75 Hun, 55 (26 N. Y. Supp. 1055).
    Persons dealing with a corporation in Pennsylvania have notice that the power of its officers is limited by by-laws or resolutions: Merchants’ Bank v. Livingston, 74 N. Y. 223.
    The fact that the bonds were negotiable does not alter the case, as the bank knew that the plaintiff corporation owned the bonds: Wilson v. Wilson-Rogers, 181 Pa. 80; Buffalo Loan, Trust & Safe Dep. Co. v. Medina Gas & Elec. Lt. Co., 162 N. Y. 67 (56 N. E. Repr. 505); Garrard v. R. R. Co., 29 Pa. 154; Fisher v. Brown, 104 Mass. 259.
    The defendant bank having actual notice of the agency of Ely and taking the bonds from him on his express declaration of his agency for the Interstate Securities Company was bound to inquire whether his agency was general or special, and his agency being special and shown by a writing in his possession, the bank took the bonds charged with notice of the special agent’s lack of authority to pledge them as collateral for an existing debt of a third party to the bank. Hence the bank is not an innocent holder for value and without notice: Loudon Savings Fund Soc. v. Bank, 36 Pa. 498; Edwards v. Dooley, 120 N. Y. 540 (24 N. E. Repr. 827); Moore v. Skyles, 33 Mont. 135 (82 Pac. Repr. 799, 114 Am. St. Repr. 801); Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 Ill. 151 (65 N. E. Repr. 136; 93 Am. St. Repr. 113); Rossiter v. Rossiter, 8 Wend. (N. Y.) 494; Towle v. Leavitt, 23 N. H. 360 (55 Am. Dec. 195); Brown v. Johnson, 20 Miss. 398 (51 Am. Dec. 118); Cobb v. Glenn Boom & Lumber Co., 57 W. Va. 49 (49 S. E. Repr. 1005; 110 Am. St. Repr. 734).
    April 24, 1911:
   Opinion by

Mr. Justice Stewart,

The Vandegrift Construction Company had contracted with the West Chester, Kennett and Wilmington Electric Railway Company to build and equip the latter’s line of road. In some way, not explained in the evidence, but presumably under the terms of the contract, the construction company had acquired large holdings in the bonds and stock of the railway company. Its necessities required the borrowing of considerable sums of money in connection with the building of the road, and for this indebtedness, owing to banks and trust companies, including among others the Third National Bank, here the appellant, it had pledged these securities. Encountering financial embarrassment, the construction company applied to the plaintiff company, doing business in the city of New York, for assistance in procuring an extension of this indebtedness, and obtaining a loan of $100,000 to insure the completion of the road. The latter company devised a scheme which met with the approval of the Integrity Trust Company, holder of much of the Vandegrift company’s indebtedness. The co-operation of these two companies was essential to the success of the scheme, and the basis and terms of their joint action had been agreed upon. The scheme contemplated the employment for collateral purposes, of some $47,500 in the bonds of the Mobile, Jackson and Kansas City Railroad Company belonging to the plaintiff company, in substitution for a larger amount of the securities of the West Chester, Ken-nett and Wilmington Railway Company, held by the Integrity Trust Company as collateral for the indebtedness of the Vandegrift company; which latter, being released, were to be used in connection with the remaining bonds of the Mobile, Jackson and Kansas City Railroad Company in securing the new loan of $100,000 necessary to complete the line of railway. On April 12, 1904, the president of the plaintiff company was in Philadelphia consulting about the arrangement; and while here, in company with the president of the construction company, called upon the cashier of the defendant bank, and advised him as to the scheme and the agreement his company had with the Integrity Trust Company to accomplish it, depending, however, on the ability of the Vandegrift company to get an extension on their existing indebtedness. He testified that he told him that all of the $100,000 which it was contemplated raising would be required for the completion of the road, and that none of it could be applied to the indebtedness of the Vandegrift company. For the purpose of carrying out the proposed plan, the plaintiff company, a week later, on April 19, intrusted $47,500 in the bonds of the Mobile, Jackson and Kansas City Railroad Company to. Mr. Ely, a director of the company, and the chief officer of its bond department, with instructions to take them to Philadelphia and upon certain conditions being complied with to deliver them to the Integrity Trust Company. Upon arriving in Philadelphia Mr. Ely learned that some of the indebtedness of the Vandegrift company was pressing for immediate payment, and that $7,000 would be required to meet these claims to prevent a sale of the bonds held in pledge therefor. Included among these was the overdue debt to the defendant bank, and for the default on which the bank had advertised at public sale the following day the bonds of the West Chester, Kennett and Wilmington Railway Company it held in pledge. Mr. Ely at once communicated by phone this fact to the plaintiff company, and asked permission, to meet this unexpected condition, to borrow $7,000 of the Integrity Trust Company by pledging ten of the Mobile bonds intrusted to him. On the following morning he received authority from the plaintiff to pledge ten of these bonds for this purpose, only, however, on certain expressed conditions, and with explicit instructions in regard thereto. Instead of observing these instructions to borrow on certain conditions the $7,000 from the Integrity Trust Company on a pledge of the bonds, wherewith to meet all the pressing liabilities of the Yandegrift company, he pledged to the Third National Bank two of the bonds to secure the sum of $1,011.80 interest on the indebtedness to that company, and three other bonds to another bank for a similar purpose. The Third National Bank would consent to a withdrawal of the bonds from sale on no other terms. 'Ely represented to the bank that the securities company would pay the interest in a few days, but the bank requiring security, Ely gave to it the two Mobile Bonds as collateral to his promise. After this had been done, the Integrity Trust Company declined to release the securities it held except on payment of $7,120 interest on the Vandegrift loan held by it. The plaintiff company being advised of this demand’ by the Integrity Trust Company, refused to comply, and the whole transaction failed, with no other result than that the defendant bank had as security for the interest due it on the Vandegrift indebtedness two of the plaintiff’s bonds. The plaintiff company as soon as advised of the action of Mr. Ely in pledging these Mobile bonds, repudiated it and demanded a return of the bonds. This being declined an action of replevin was brought for their recovery, resulting in a verdict for the plaintiff.

The questions raised on the appeal are free from difficulty. The fact that the bonds pledged were payable to bearer and. therefore negotiable is without significance. The defendant bank fully understood in dealing with Ely that the latter was not acting on his own behalf, but as the agent and representative of the plaintiff, and that the bonds he offered in pledge were not his bonds but belonged to the plaintiff. So much clearly appears from the receipt given Ely by the bank for the bonds. He had promised that the plaintiff company would pay the arrearages of interest on the Vandegrift loan in a day or two if the bank would withdraw the West Chester, Kennett and Wilmington Railway bonds from sale, and the Mobile bonds were accepted by the bank as collateral to this promise. However much another who had obtained the bonds innocently from Ely, might have relied on the presumption of his ownership of them, all such presumption in the present case was wholly overcome by the facts. Nor is there anything in the fact that Ely was a director of the plaintiff company and its chief officer in charge of its bond department that can avail the defendant company. In neither capacity had he authority to pledge or otherwise dispose of the securities or other property of the company. It is too obvious for discussion that neither as director nor as manager of the bond department, could he bind the company by an unauthorized promise to pay the debt of another, even if it were to obtain special advantage to the company. No more could he give title to property belonging to the company which he pledged as collateral to such promise. No presumption of authority arises in such case. The fact appearing, as it unquestionably did, that the bank knew it was dealing with an agent, the burden was upon it to show the authority of the agent to do what he did. It is a universally recognized doctrine that when one deals with an agent .he is bound to ascertain the nature and extent of the agent’s authority. He may not trust to a mere presumption of authority, or to any mere assumption of authority by the agent; but must trace the authority to its source if he would be protected. Had the bank done so in this instance — and clearly it was put upon inquiry — even had it inspected the written instructions which Ely had with him at the time of the transaction, it would have discovered that the pledging of the bonds for the Vandegrift debt was not only unauthorized, but in direct violation of the instructions which he had received. These instructions were admitted in evidence only after the fact of Ely’s agency, and defendant’s knowledge of such fact, at the time of the transaction, had been made to appear. There was no error in admitting the evidence. Nor was there error in excluding the offers made on part of the defendant, to show by Ely, that when acting for the plaintiff under written instructions, he sometimes acted upon his own discretion, not strictly in line with the instructions; and that when he did so his acts were accepted by the company. One sufficient objection to these offers, to say nothing of others quite as conclusive, is that they did not even suggest a discretion extending to the binding of the company by a promise to pay the debt of another, and the pledge of securities of the company therefor.

Upon a review of the case, and a careful study of the evidence, we find nothing that called for a submission of the case to the jury. There was no issue of fact. Ely, called by the defendant, admitted that he was without authority to make or pledge these bonds to the bank to secure the interest on the Yandegrift loan. When asked the question whether he had such authority, his reply was: “No, sir, that was on my own initiative;” and again, when the question was repeated, he replied: “No, sir, I was only authorized to put the bonds with the Integrity Company in order to get the money.” Had he observed his instructions and delivered the bonds to the Integrity Company upon failure of the scheme, the plaintiff would have received back all its bonds. As it is $2,000 of its bonds, by the unauthorized act of its agent, are held in pledge by the-defendant to answer for a debt for which the plaintiff was never liable. The only consideration passing from the defendant for the pledge was the delay for a few days at most in selling its original securities. In what we have said we have sufficiently answered the assignments of error. They are overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Reed v. American Dyewood Company, Appellant.

      Negligence — Master and servant — Safe place to work — Tools and appliances — “General use” rule — Dust explosion — Defective appliance— Electric motor — Notice of danger — Proximate cause — Question for jury.

    1. The duty of a master does not require that he protect his servant against all dangers or casualties. He is bound to furnish a reasonably safe place to work and reasonably safe tools or appliances with which to work. The standard or measure of safety depends upon the kind and character of work done. Some kinds of work are more dangerous than others and some tools and machinery are more complicated and necessarily involve more risk than other kinds. These varying conditions must always be taken into account in determining the measure of safety required in such cases. As a general rule a manufacturer meets the requirements of the law when he furnishes the kind of tools or appliances in general use in the particular line of manufacture in which he is engaged.
    2. In an action by an employee against his employer for damages for injuries received in a dust explosion in defendant’s logwood mill the question of the defendant’s negligence is for the jury and a verdict for the plaintiff will not be disturbed where there is evidence to show that an electric motor, necessary to the manufacturing process, was placed in the fustic room, several feet above the floor and near the wall of the mill; that the motor was neither covered nor guarded; that for several weeks prior to the accident it had been emitting sparks at frequent intervals and of various sizes, many having the appearance of a flame two or three inches long; that the fustic room was filled with dense clouds of wood dust, which settled thickly over the entire interior of the room; that the motor was defective and that this defective condition caused the emission of the sparks or “flame,” and a witness who was in the fustic room at the time testified that about a minute before the explosion he “heard a racket and the motor slow up, she went right off in my face;” that the motor exploded and “flames of fire shot in my face and knocked me out,” and that immediately after he saw the flash from the motor, one of the walls in the fustic room blew out into the room adjoining.
    3. Under such conditions, even if an explosion had not been anticipated, the danger from fire was sufficiently apparent to the average man to put the employer on notice, and steps should have been taken to protect the employees against that danger.

      Court and jury — Instructions—Use of figures — Practice, C. P.

    4. It is not reversible error for a judge in charging the jury in a negligence case to use figures by way of illustration, if he instructs the jury that he is only using the figures by way of illustration, and with no intention of indicating what he thinks the verdict should be.
    Argued Feb. 6, 1911.
    Appeal, No. 148, Jan. T., 1910, by defendant, from judgment of C. P. Del. Co., Dee. T., 1908, No. 282, on verdict for plaintiff in case of George H. Reed v. American Dyewood Company.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Broomall, J.
    The American Dyewood Company, of Chester, was engaged in the manufacture of logwood and fustic extracts and dyes, in which process the wood was chipped and ground into dust, clouds of which permeated to a greater or lesser extent the fourth and fifth floors of the building.
    The plaintiff, George H. Reed, was employed at a chipping machine which was located on the ground outside the wall of the main building, but which was connected with the upper floors where the fire started by a spout or tube. On April 28,1908, the plaintiff was severely burned by a tongue of flame which shot out of the “splint spout” leading to the chipper at which he was working.
    In the course of the manufacturing process, the finely divided wood was stored, preparatory to extracting, in three rooms on the fifth floor of the mill, among them the fustic room, to which the dust was carried by an overhead conveyor and dropped on the floor in piles, to be later dumped through trapdoors arranged for that purpose into cars on the floor beneath.
    Further facts appear in the opinion of the Supreme Court.
    At the trial the court instructed the jury as follows:
    Now, he has introduced by the evidence the fact that his earning power at the time of this injury was $12.00 per week. He is a man about fifty years of age. Twelve dollars per week of constant work, unremitting work, day in and day out, week in and week out, and month in and month out, produces in the course of a year about $600. All men do not work all the time. Men lose time through various causes, lose time through sickness, lose time sometimes because they don’t want to work, lose time because of diversion, entertainment, and lose time sometimes because there is no work to be had, so that you would consider whether it would be right or proper to start off with $600 a year. Would it or would it not be? If you conclude that it would not, then you would reduce the $600 per year down to a figure that you would conclude would be a fair figure, say, for whatever span of life you may conclude he probably will live — would have lived if he had not been injured. I am only suggesting now a system, you understand. You are not bound at all by any system that I suggest. You adopt your- own system, but it is proper that you should get at a result, if you come to this question, in a systematic way.
    Now, if you reduce the sum of $600 considering that you are looking forward to a term of twenty years — a man does not work as much when he gets toward seventy as he does about fifty — when you come to reduce the $600, by how much would you reduce it to say what this earning power of this man was if he should live twenty years, per annum? Would you or would you not be safe in reducing it one-third? Adopt your own figures, but would you or would you not be safe in reducing it one-third? If so, then you would count on his earning power at about $400 a year, $300 or $400 a year, — $300 if you reduce it half, or $400 a year.
    Now, you would have gotten, if you pursue that line — you would have gotten to a point where you would conclude in this man’s favor that during twenty years he would make, he would have acquired $8,000 by his labor. Twenty times $400 is $8,000. Now the proposition would be: What amount of money, taken now, and put at interest, will pay him $400 a year, and run out at nothing at the end of twenty years? Whatever verdict is awarded to him, of course, it is his duty — it would be his duty to put it to income bearing, and if five per cent per annum is a fair figure to calculate, the question would be then: What amount taken now and put out at interest at five per cent will produce a fund which would pay him $400 per annum, if you adopt that figure — $400 per annum, and run out to nothing twenty years hence, if you fix twenty years as the period of life? Now, you will find, if you apply arithmetic to it, that $5,333 put out at interest at five per cent, and kept at interest — first starting with $5,333, and reducing it to $400 per year, kept at interest for twenty years would produce a fund of $8,000, which would pay him $400 a year for twenty years.
    Now, that is only an illustration of getting at it in some systematic way. And, as I repeat again, in order that I may not be misunderstood, because I do not assume to control you in the adoption of your system, but I only suggest the advisability, propriety of adopting some system, if you come to this question, and render a verdict which is the result of some mental application to it, and I repeat, that if you will try arithmetic, a sum of $5,333 placed at five per cent and reduced $400 per annum will produce a fund which will pay this man $400 per annum for twenty years. Now, that is all the light that I can give you upon the subject.
    Verdict for plaintiff for $6,000 and judgment thereon. Defendant appealed.

      Errors assigned were (1, 2) in refusing binding instructions for defendant; (3) in charging as above.

      John Hampton Barnes and William I. Schaffer, for appellant.
    The causal connection between the sparking of the motor and the ignition of the substance which first took fire was not proven and, therefore, no negligence was shown; Reese v. Clark, 146 Pa. 465; Alexander v. Penna. Water Co., 201 Pa. 252; Wojciechowski v. Spreckles’ Sugar Refining Co., 177 Pa. 57; Zahniser v. Penna. Torpedo Co., 190 Pa. 350; Snodgrass v. Carnegie Steel Co., 173 Pa. 228; Lawson v. American Steel & Wire Co., 204 Pa. 604.
    April 24, 1911:
    Notice to a master that an appliance is out of order is not enough. He must know of the danger to the employee to be liable: Corcoran v. Wanamaker, 185 Pa. 496; Wall v. Lit, 195 Pa. 375; Allison Manufacturing Co. v. McCormick, 118 Pa. 519; Gundelsweiler v. Jayne Chemical Co., 161 Pa. 23; Kilbride v. Carbon Dioxide & Magnesia Co., 201 Pa. 552; Dalton v. Towanda Borough, 215 Pa. 402.
    Plaintiff’s proofs did not point to any negligence of the defendant as the cause of plaintiff’s injury with such a degree of certainty as to justify the jury in finding it to have been the proximate cause: Ott v. Boggs, 219 Pa. 614.

      Joseph H. Hinkson, with him J. DeHaven Ledward, for appellee.
    An employer who has had ample opportunity to discover a defective appliance and does not repair it within a reasonable time, is liable in damages to an employee who is injured by reason of the defective appliance while in the performance of his duties: Bennett v. Glass Co., 158 Pa. 120; Gudfelder v. Railway Co., 207 Pa. 629; Wiedeman v. Everard, 56 N. Y. App. Div. 358 (67 N. Y. Supp. 738; 166 N. Y. 598; 59 N. E. Repr. 1132).
    Defendant knew or ought to have known that under the condition a fire was likely to occur at any time and that would be followed by an explosion: Butterman v. McClintic Marshall Const. Co., 206 Pa. 82; Hine v. Cushing, 53 Hun, 519 (6 N. Y. Supp. 850); Tissue v. R. R. Co., 112 Pa. 91; Hope v. Fall Brook Coal Co., 3 N. Y. App. Div. 70 (38 N. Y. Supp. 1040); Stoltenberg v. R. R. Co., 165 Pa. 377; Gudfelder v. Railway Co., 207 Pa. 629.
   Opinion by

Mr. Justice Elkin,

If the combustion, or explosion, or whatever it was that caused the accident, resulted from sparks emitted from the defective and unguarded motor in the fustic room, this case was for the jury on the question of negligence. This was the theory upon which the case was tried and as we understand the contention of appellant it is not denied that if the explosion was occasioned by the emission of sparks from the motor, the jury might infer negligence for which appellant would be answerable in damages. The contention is earnestly made that the evidence is not sufficient to warrant an inference that the explosion was occasioned by the emission of sparks from the motor in the fustic room, and that the probable cause of the accident was left to mere conjecture. It is suggested that the unfortunate occurrence was the result of dnforeseen conditions which could not have been anticipated and for which no one is responsible. If the injuries for which damages are sought to be recovered resulted from causes beyond the control of appellant, or if the explosion was accidental and without fault on the part of anyone, or if latent and dangerous agencies, unknown to appellant and so unusual as not to be anticipated in the exercise of ordinary business judgment, caused the injuries complained of, there could be no recovery on the ground of negligence. The duty of a master does not require that he protect his servant against all dangers or casualties. He is bound to furnish a reasonably safe place to work and reasonably safe tools or appliances with which to work. The standard or measure of safety depends upon the kind and character of work done. Some kinds of work are more dangerous than others and some tools and machinery are more complicated and necessarily involve more risk than other kinds. These varying conditions must always be taken into account in determining the measure of safety required in such cases. As a general rule a manufacturer meets the requirements of the law when he furnishes the kind of tools or appliances in general use in the particular line of manufacture in which he is engaged. If these were the only questions involved in the present case we would unhesitatingly say that the place as well as the tools and appliances in general use in the manufacturing establishment were reasonably safe within the meaning of the law. But these are not the only questions, and it becomes our duty to give further consideration to the facts in order to determine the legal rights of the parties. The evidence shows that a motor, necessary to the manufacturing process, was placed in the fustic room several feet above the floor and near the wall of the building. This motor was neither covered nor guarded. For several weeks prior to the accident it had been emitting sparks at frequent intervals and of varying sizes. Some of the witnesses testified that these sparks frequently had the appearance of a flame two or three inches long. The fustic room in which the motor was located was filled with wood dust while the plant was in operation. This wood dust settled on the floor two or three inches deep and covered the walls, ceiling and entire interior of the room. Employees working there tied handkerchiefs over their mouths and noses in order to protect themselves against this cloud of wood dust, which at times was so dense as to limit the range of vision to a few feet. These were the conditions in the room in which the motor was constantly emitting sparks, or as some of the witnesses called them, flames of fire. The motor had been emitting these sparks for several weeks before the accident occurred. There was some evidence tending to show that the motor was defective and that this defective condition caused the emission of the sparks, especially those described by the witnesses as flames. It is contended for appellant that a motor in first-class condition will emit sparks and that there was nothing so unusual in the present case as to put it on notice of anticipated danger from this cause, certainly not that an explosion might result therefrom. It may be conceded that appellant was not bound to anticipate what did actually occur. If such an occurrence had been anticipated, the instincts of humanity and self-interest would have suggested that steps be taken to guard against consequences so appalling. The case in our opinion does not turn upon what knowledge the appellant had, or did not have, as to the explosive character of wood dust. It does not require expert knowledge to inform a person with ordinary intelligence that a spark or flame two or three inches long may and sometimes will ignite wood dust. This is within the common knowledge of every person. As an illustration take the conditions in the fustic room as shown by the evidence, the average man, master or servant, would say at once that it was dangerous to have sparks or flames frequently thrown out into such an atmosphere. The danger from fire at least would seem to be apparent even if an explosion had not been anticipated. We think the danger was sufficiently apparent to put the employer on notice and that steps should have been taken to protect the employees against that danger. A little care and very slight expense would have averted the danger and saved an innocent employee in another part of the building and whose duties did not require him to have any knowledge of the conditions in the fustic room, from the grievous injuries suffered. It is true, as is contended for appellant, that a servant is not entitled to have his case submitted to the jury, unless he introduces, in addition to the fact of the happening of the accident, testimony which fairly tends to show negligence on the part of the employer. In the absence of such additional testimony, save in those exceptional cases in which the doctrine of res ipsa loquitur applies, an action for damages is not maintainable: Labatt on Master and Servant, sec. 835. It is perhaps unnecessary to remark that the doctrine of res ipsa loquitur has no application under the facts of the present case. In this case the burden was on appellee to prove substantive facts from which the inference of negligence might be fairly drawn, and in our opinion the proofs submitted were sufficient for this purpose. The testimony of the eyewitness, Moore, who was standing in the fustic room at the time of the accident, and who saw and heard what occurred in connection with the motor, if believed by the jury, as it evidently was, fully warranted the inference that the trouble originated in and around the motor. He describes where he was and what he saw and did at the time of the accident. He testified among other things, that, “I was up there [meaning in the fustic room] about a minute before the explosion. Time enough to stoop down and open up the hole in the floor. I heard a racket and the motor slow up, she went right off in my face.” He accounted for the accident by saying that the motor exploded, and when asked what he meant by saying the motor exploded, he replied, “Flames of fire shot in my face, and knocked me out.”

He also testified that immediately after seeing the flash of fire from the motor, “the brick wall partition between the redwood department and the fustic department blew out.” He further testified that the brick wall partition between the two rooms was blown away from the fustic room and toward the redwood room. The only inference to be drawn from these facts is that the explosion occurred in the fustic room, and that the trouble originated in and about the motor. The emission of sparks, or flames of fire, would account for all that happened. We cannot agree that the testimony of the witness, DeShields, who was also on the fifth floor of the building but in another department, contradicts Moore. Indeed, as we read the testimony of these witnesses, one corroborates the other in all essential particulars. Certainly there is no greater variance as to the details of the accident than would be expected in the testimony of two witnesses subsequently relating what took place at the time of this most unusual occurrence. But even if different inferences might be drawn from their testimony it was the duty of the jury to draw them. DeShields testified, among other things, “I heard this noise, and I whirls around and goes toward the steps [meaning the stairway leading from the fifth down to the fourth floor] and I heard the noise again, and when I heard the noise I seen something like electricity and in the meantime the whole thing just lit up and I started to run down the stairs; and I got down about halfway of the steps and so I don’t remember getting down on the floor, but I soon recovered; when I found myself I was on the floor, and I gets up from there then and made a dash toward the big door and was going to jump out the fourth story window.” These were the only witnesses on the fifth floor at the time of the accident. The one was in the fustic room and saw and heard what occurred there, the other was in another department separated by a wall, but it was possible for DeShields to see all he says he saw through the open stairway which in a way connected the two departments. Their testimony warranted the jury in finding that the explosion occurred on the fifth floor in the fustic room, and the only reasonable inference from all the facts is that the sparks, or flames so called, emitted from the motor, were the proximate cause of the explosion. Under these circumstances it would have been error to have withdrawn the case from the jury.

The third assignment raises a different question. It is contended that the learned court below committed reversible error in using figures by way of illustration in the computation of damages. Benson v. Railway Company, 228 Pa. 290, is relied on to sustain this contention of appellant. That case is not authority for the position taken here. It was there pointed out that the use of figures by way of illustration in charging a jury as to a method of ascertaining the present value of loss of future earnings is a dangerous practice, but such use of figures is not ground for reversal, if the judge instructs the jury that he is only using the figures by way of illustration, and that he did not intend to indicate what he thought the verdict should be. The judgment in that case was affirmed although practically the same question was raised there as here. As we review this record no harm was done appellant by use, of the illustration about which complaint is now made. Indeed, the effort of the trial judge was to impress upon the jury the important fact in the consideration of such cases, that the present worth of future earnings should be their guiding -thought in arriving at a proper verdict. All of which tended to protect appellant and was not in disregard of its rights. The learned counsel for appellant must have been impressed with this view of the situation at the time of the trial because no points were submitted nor requests made for more definite instructions on this branch of the case. We are not convinced that any harm was done appellant by the instruction complained of and do not feel warranted under all the circumstances in reversing the judgment on this ground.

Assignments of error overruled and judgment affirmed.


text:
    Corcoran v. Huey, Appellant.

      Evidence — Variance—Allegata and probata — Statute of frauds — Original undertaking — Guaranty—“We will see to it that you are paid.”

    1. In an action for work and labor done, the ease is for the jury, and a verdict and judgment for the plaintiff will be sustained, where the proofs show that the plaintiffs were subcontractors for certain work, and after they had completed about a third of it they refused to go on because of their distrust of the financial ability of the contractor, and that the defendants who were interested in the enterprise said to them that they should proceed with the work, and that the defendants would pay for the work already done as well as what remained to be completed. In such a case there is no variance in the allegata and the probata where the promise set out in the statement of claim was that if the plaintiffs would proceed with the work the defendants would see to it that the plaintiffs were paid, not only for the work done prior to the promise, but for such work as should be done thereafter.
    2. The words “We will see to it that you are paid” have no fixed legal meaning which so limits their force that only a secondary or collateral liability can be derived from them. Much depends on the connection in which they occur, and the circumstances attending their use. It is for the jury to say under all the evidence what they mean.
    Argued Feb. 7, 1911.
    Appeal, No. 211, Jan. T., 1910, by defendants, from judgment of C. P. Chester Co., Aug. T., 1909, No. 35, on verdict for plaintiffs in case of P. H. Corcoran and W. J. Corcoran, trading as Corcoran Bros., v. John E. Huey and C. W. Talbot.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for work and labor done. Before Hemp-hill, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,896.36. Defendant appealed.

      Errors assigned were in refusing to strike out the testimony referred to in the opinion of the Supreme Court, and refusal of binding instructions for defendant.

      Alfred P. Reid, with him Thomas W. Pierce, for appellants.
    It is not enough that the evidence show the cause óf action, it must show the cause alleged: Kough v. R. R. Co., 222 Pa. 175; Stewart v. DeNoon, 220 Pa. 154; Wilkinson Mfg. Co. v. Welde, 196 Pa. 508; Shaw v. Fleming, 174 Pa. 52; Watkins v. Moore, 192 Pa. 211.
    The language, “Keep on with your work, and I will see you paid,” without more, constitutes a promise to see that the principal performed his obligation, and not being in writing, falls within the statute of frauds: Gable v. Graybill, 1 Pa. Superior Ct. 29; Haverly v. Mercur, 78 Pa. 257; Dougherty & Co. v. Bash, 167 Pa. 429; Speers v. Knarr, 4 Pa. Superior Ct. 80; Eshleman v. Harnish, 76 Pa. 97; Rancil v. Krohne, 31 Pa. Superior Ct. 130; Lewis v. Lewis Lumber Mgf Co., 156 Pa. 217.

      A. M. Holding, with him Joseph H. Baldwin, for appellees.
    There was no variance between the allegata and the probata: Greene v. Burton, 59 Vt. 423 (10 Atl. Repr. 575); Speers v. Knarr, 4 Pa. Superior Ct. 80; Kaufman v. Abeles, 11 Pa. Superior Ct. 616.
    The promise of the appellants was not within the statute of frauds, because the leading purpose thereof, and indeed the only purpose thereof, was to subserve their own interests: Thomas v. Wiltbank, 6 W. N. C. 477; Elkin v. Timlin, 151 Pa. 491; Bailey v. Marshall, 174 Pa. 602; Kelly v. Baun, 6 Pa. Superior Ct. 327; Baxter v. Hurlburt, 15 Pa. Superior Ct. 541; Klein v. Rand, 35 Pa. Superior Ct. 263; Beard v. Heck, 13 Pa. Superior Ct. 390; May v. Walker, 20 Pa. Superior Ct. 581; Pizzi v. Nardello, 209 Pa. 1; Craft v. Kendrick, 39 Florida, 90 (21 So. Repr. 803); Sinkovitz v. Applebaum, 107 N. Y. Supp. 122; Schultz v. Cohen, 34 N. Y. Supp. 927; Boeff v. Rosenthal, 78 N. Y. Supp. 1108; Warnick v. Grosholz, 3 Grant (Pa.), 234; Duncan v. Shaw, 17 Pa. Superior Ct. 225.
    April 24, 1911:
   Opinion by

Mr. Justice Stewart,

A company chartered and organized to supply with gas two towns, and the intervening territory, all in Chester county, entered into an agreement with the Philadelphia Engineering Company for the construction of its system. The latter company contracted with the plaintiffs in the present action for the digging of the trenches for the pipes between the towns. The evidence introduced on behalf of plaintiffs was to the effect that they entered upon their work, and had proceeded with it until about one-third was completed, when, having received no pay for the work already done, they became distrustful of the financial ability of the engineering company to meet its contract obligations with them; that they then decided to abandon their contract, and communicated this fact to these defendants who were financially interested in having the work completed; that the defendants then promised that if they (the plaintiffs) would go on with the work, they (the defendants) would pay for the work done and for the work to be done; and that relying upon this promise plaintiffs resumed operations and completed the work. The action was brought to recover from the defendants on the alleged promise, and a verdict for the full amount of the plaintiff’s claim resulted.

Except as it was error to refuse the motion to strike out the testimony of the three witnesses called on behalf of the plaintiffs to the effect that in the conversation which they said occurred between the plaintiffs and defendants, and at which they were present, the latter said to the former that they should proceed with the work, and that they (the defendants) would pay for the work already done as well what remained to be completed, this record is unimpeachable. This testimony, if admissible under the pleadings, unquestionably required a submission of the case to the jury. The motion to strike it out was made when plaintiffs were about to rest, on the ground that it was at variance with the cause of action as set out in the plaintiff’s statement; that it implied an original undertaking on part of defendants, whereas what was declared on, viz., that defendants promised to see to it that plaintiffs were paid, was but a promise of guaranty, falling within the provisions of the statute of frauds, and not being in writing was unenforceable. The court refused the motion, without assigning any reason for the ruling. The promise as set out in the statement is that if they (the plaintiffs) would proceed with the work provided for in the above-quoted contract with the Philadelphia Gas Engineering Company, they (the defendants) would see to it that the plaintiffs were paid, not only for the work done prior to the date of said promise, but for such work as should be done thereafter in connection with the completion of the trenches and pipe line of said company. If the words “we will see to it that you are paid” have a fixed legal meaning, which so limits their force that only a secondary or collateral liability can be derived therefrom, then, inasmuch as the evidence which was asked to be stricken out, if believed, establishes a primary obligation, the motion to strike out should have prevailed; for the variance between the allegata and probata would in such case be obvious. But this cannot be affirmed. These words have no such certain, fixed meaning that the court could say as matter of law that they necessarily import the one kind of obligation rather than the other. Much depends on the connection in which they occur, and the circumstances attending their use. Cases are not wanting where the words “will see you paid” have been held to imply a collateral undertaking to pay if the original promisor did not, and counsel for appellant have cited some in support of their contention; but neither are cases wanting where recovery has been allowed as on an original undertaking where the same words, or words equivalent, have been used. A single citation from our own reports will be sufficient. In Greenough v. Eicholtz, 1 Monaghan (Pa.), 433, the action was to recover a balance due for printing. Plaintiffs offered evidence to show that after the printing had been proceeded with under contract with another party, plaintiffs, because of failure to get their money, refused to proceed further with the work, and that the defendants induced the plaintiffs to finish the contract by promising they “would see it paid.” Recovery was had, and this court upon review of the case said: “In the face of the testimony of Eicholtz (as above) it is folly to urge that there was not^an original undertaking on part of the defendant to pay for the paper-book. If his testimony was believed, as it seems to have been, the work was furnished on the credit of the defendants; and the undertaking was not to pay the debt of another, for, without their promise, the work would never have been performed.” It is impossible to distinguish this case from the present one. The words of the promise are essentially the same, and the conditions which led to their employment are precisely the same. If then the words set out in the statement of claim on which the present action was based, were consistent with an original undertaking, no departure in the evidence from the exact language set out in the statement, so long as it introduced no different cause of action, could be held a variance. No error therefore was committed in refusing the motion. There is no other feature of the case that calls for consideration. The case was properly submitted. The assignments of error are overruled, and judgment is affirmed.


author: Mr. Justice Potter,

text:
    Fegley v. Lycoming Rubber Company, Appellant.

      Negligence — Master and servant — Unguarded machinery — Proximate cause — Bisk of employment.

    1. In an action by an employee against Ms employer to recover damages for personal injuries alleged to have been caused by the failure of the defendant to cover the cogwheels of a machine as required by the statute, the case is for the jury and a verdict and judgment for the plaintiff will be sustained, where the evidence shows that at the time of the accident the plaintiff was standing upon a small platform at the side of the machine attending to his duties, when another workman accidentally pushed a loaded wheelbarrow against the platform with such force as to cause plaintiff to lose his balance and fall on the exposed wheels.
    2. To hold that a prior slip or an accidental movement wMch brings a workman into contact with uncovered cogwheels, is to be considered as the proximate cause of the resulting injury, would be to practically nullify the provisions of the law made to protect him against such risks.
    3. An employer cannot invoke the defense of assumption of risk by the employee, in the face of a statute requiring safeguards to be supplied for dangerous machinery. •
    Argued Feb. 13, 1911.
    Appeal, No. 304, Jan. T., 1910, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1909, No. 269, on verdict for plaintiff in case of Samuel Fegley v. Lycoming Rubber Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal' injuries. Before Hart, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,500. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      Edgar Munson, of Candor & Munson, for appellant.—
    The unguarded condition of the cogwheel was not the proximate cause of the accident: Herr v. Lebanon, 149 Pa. 222; Nichols v. Pittsfield Twp., 209 Pa. 240; Willis v. Armstrong County, 183 Pa. 184; Heister v. Fawn Twp., 189 Pa. 253; P. H. & F. M. Roots Co. v. Meeker, 165 Ind. 132 (73 N. E. Repr. 253; 17 Am. Neg. Repr. 484); Crawford & McCrimmon Co. v. Gose, 43 Ind. App. 373 (87 N. E. Repr. 709); Brown v. Steel & Wire Co., 43 Ind. App. 560 (88 N. E. Repr. 80); Fulwider v. Trenton Gas Light & Power Co., 216 Mo. 582 (116 S. W. Repr. 508); Elliott v. Allegheny County L. Co., 204 Pa. 568.
    April 24, 1911:
    Plaintiff assumed the risk: Stehle v. Jaeger Automatic Machine Co., 220 Pa. 617; Jones v. American Caramel Co., 225 Pa. 644; Valjago v. Carnegie Steel Co., 226 Pa. 514.

      N. M. Edwards, with him W. H. Spencer, for appellee,
    cited as to the assumption of the risk: Jones v. Caramel Co., 225 Pa. 644; Valjago v. Steel Co., 226 Pa. 514; Narramore v. Ry. Co., 96 Fed. Repr. 298; Marino v. Lehmaier, 173 N. Y. 530 (66 N. E. Repr. 572); Stewart v. Ferguson, 164 N. Y. 553 (58 N. E. Repr. 662); Am. Car & Foundry Co. v. Armentraut, 214 Ill. 509 (73 N. E. Repr. 766); Newlin Twp. v. Davis, 77 Pa. 317; Hey v. Philadelphia, 81 Pa. 44; Yoders v. Amwell Twp., 172 Pa. 447; Boone v. East Norwegian Twp., 192 Pa. 206; Burrell Township v. Uncapher, 117 Pa. 353; Plymouth Township v. Graver, 125 Pa. 24; Closser v. Washington Twp., 11 Pa. Superior Ct. 112; Curry v. Luzerne Borough, 24 Pa. Superior Ct. 514; Bitting v. Maxatawny Twp., 180 Pa. 357; Heister v. Fawn Twp., 189 Pa. 253; Nichols v. Pittsfield Twp., 209 Pa. 240; Menner v. Canal Co., 7 Pa. Superior Ct. 135; Confer v. R. R. Co., 146 Pa. 31; Ewing v. North Versailles Twp., 146 Pa. 309.
   Opinion by

Mr. Justice Potter,

That the defendant in this case was negligent in failing to cover certain cogwheels, as required by the statute; that this negligence caused the injury to plaintiff, and that the latter was free from contributory negligence, are matters of fact which have all been established by the verdict of the jury. Counsel for appellant make no complaint of the manner in which the case was submitted to the jury, but they contend that the act of defendant in maintaining the open cogwheels, was not the proximate cause of the injury to the plaintiff. It seems that at the time of the accident, the plaintiff was standing upon a small platform at the side of the machine attending to his duties, when another workman accidentally pushed a loaded wheelbarrow against the platform with such force as to cause plaintiff to lose his balance. In the effort to recover, one hand was thrown out, and went into the uncovered cogs, and was crushed. Counsel seek to approximate the facts of this case, and the principle as to liability involved, to those in Elliott v. Light Co., 204 Pa. 568. But their argument is not convincing. In that case it was held that the slipping of a ladder was the originating cause of the plaintiff’s fall, and that the fact that he fell against an electric light wire was a mere incident to that fall. It was shown that the light wire was fastened high upon the side of the house, and was so situated that no injurious consequences were reasonably to have been anticipated from anyone falling against it. And as a person is not expected to anticipate and guard against that which no reasonable man would expect to occur, it might for that reason, equally with that which was emphasized in the opinion, have been held in that case that there was no liability upon the part of the defendant. But it is equally true that a person is properly expected to anticipate and guard against the reasonable consequences of his action. In the present case the open cogwheels were so situated that an accidental slip might bring a workman or an attendant of the machine into dangerous contact with them. The common experience of mankind has shown the danger to be apprehended from unguarded machinery, and especially that from uncovered, revolving cogwheels, and has made clear the duty of protecting from that danger, those whose duties bring them in proximity to such machinery. The statute has merely crystallized the demands of ordinary prudence, in requiring that cogs, gearing and other machinery shall be covered. An injury from machinery, open and uncovered, is not liable to occur, without the concurrence of some accident or unexpected event, such as a slip or a miscalculated move. And it is for the very reason that such things may in numberless unexpected ways, plunge a workman into danger, without fault of his own, that prudence requires proper safeguards to be supplied to prevent accidental contact with moving machinery. To hold that a prior slip or an accidental movement which brings an unfortunate workman into contact with uncovered cogwheels, is to be considered as the proximate cause of the resulting injury, would be to practically nullify the provisions of the law made to protect him against such risks. Nor is there any merit in the further suggestion of counsel, that the risk of injury from the uncovered cogs, was assumed by the plaintiff. We have pointed out in Jones v. Caramel Co., 225 Pa. 644, and in Valjago v. Steel Co., 226 Pa. 514, that in Pennsylvania an employer cannot invoke the defense of assumption of risk by the employee, in the face of a statute requiring safeguards to be supplied for dangerous machinery. This is no longer an open question with us.

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


text:
    Miller, Appellant, v. Cockins.

      Equity — Equity practice — Failure of trial court to find facts — Remanding case.

    It is not the duty of the Supreme Court originally to find the facts in an equity case. If the trial judge fails to find the facts from conflicting testimony when it is possible for him to do so, the case will be remanded that the facts may be found in accordance with the equity rules. The Supreme Court will not consider a mere summary of the statements of the several witnesses as proper findings of fact.

      Argued Feb. 27, 1911.
    April 24, 1911:
    Appeal, No. 15, Oct. T., 1911, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1909, No. 1,139, dismissing bill in equity in case of Adelaide Miller Blick and Horace J. Miller v. James M. Cockins et al.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Case remanded.
    Bill in equity to declare a trust ex maleficio. Before Shaper, J. ■
    The opinion of the Supreme Court states the.case.

      Error assigned was decree dismissing the bill.

      Joseph N. Ulman and John S. Ferguson, for appellant.

      Samuel S. Mehard, with him Harvey A. Miller and Louis J. Burger, for appellees.
   Opinion by

Mr. Justice Stewart,

The bill in this case was to have the defendant declared a trustee ex maleficio with respect to certain property devised and bequeathed to him by his wife upon an alleged parol agreement made by him with his wife, and for an injunction restraining the defendant from disposing of the property. The answer specifically denied that any such agreement had been made, and traversed every material allegation in the bill. The plaintiffs were accordingly put to their proofs. The evidence they adduced related wholly and exclusively to admissions alleged to have been made by the defendant immediately after his wife’s death, some before her final interment, and some within a day or two thereafter. The testimony relied on to establish these came from the plaintiffs themselves, the husband of one of them, and one witness not identified in interest. The defendant alone testified in. contradiction. It is not open to question that the admissions testified to by Mrs. Blick and her husband as having been made by the defendant, were so many clear, distinct and unqualified acknowledgments that the will, though on its face an absolute devise and bequest to the defendant, was so made with the understanding and agreement between testatrix and defendant, that defendant was to have but a life estate therein, and that upon his death the property was to go to these appellants as next of kin. The testimony of Horace J. Miller, who was present at some of the conversations, while not so explicit and circumstantial as that of Blick and his wife, is corroborative in its .main features, and if believed makes largely for plaintiff’s contention. As much is to be said of the testimony of Samuel J. Harman, Esq., an attorney, who testified to a certain conversation with the defendant in his office in Baltimore, There was nothing material in the testimony of any of these witnesses that was not as distinctly and unqualifiedly denied by the defendant. The case resolved itself into a question as to which side was to be believed. Had the learned chancellor met and decided this issue, however much we might have been inclined to a contrary view, we would have given his conclusions the effect of a verdict, except as clear error appeared, because of his better opportunity, from having the witnesses before him, of judging of their credibility. But this he has not done. What are apparently intended as the findings of fact in the case, until we reach the seventh, are but so many concise statements of what the several witnesses testified to. The seventh is the only finding, and even that is rather an evasion than a finding. It is as follows: “We have thus stated the substance of the testimony, for the reason that the nature and character of the evidence in a case of this kind appears to be a substantive fact. We are somewhat at a loss to determine from the evidence thus given precisely what did happen as to the declarations and writings relied on by the plaintiffs. We have no difficulty, however, in finding as a fact and we do find, that Mr. Cockins when he told the plaintiffs of his wife making a will of all her property in his favor, said to them substantially that his wife had reposed great confidence in him; that she had expressed to him the wish that he would see that her next of kin got the property after his death, and that he had told her that he would see to it that they got it; but he did not say or mean to say that the will was made by Her upon any such promise or condition, but merely that after the will was made and she had told him of it, the request and promise had been made as stated.” Precisely what did happen with respect to the declaration and writings relied upon by the plaintiffs, was just what it was the duty of the chancellor to find. We fail to understand why he was at a loss to determine it. The evidence was ample, and it was simply a question of preponderance of proof. If the case presented any unusual or difficult features, we have not discovered them. If a finding of fact by a chancellor is to be allowed the conclusiveness of a verdict, it must have the characteristics of a verdict; it must speak the truth where the truth has been hidden or concealed by conflicting testimony. Here the truth with respect to this controversy was with one side or the other; not partly with one and partly with the other. The alleged admissions were either made or they were not made. There is no middle ground; for mistake or misunderstanding was not pretended. The failure to find with respect to these admissions is not relieved by what follows in this finding. What precedes cannot be regarded as the finding of any fact; it is at best an epitome in paragraphs of testimony on one side and the other, and too brief for a correct understanding of the case. As there given, it shows a single, sharp and clearly defined issue of fact with regard to which one side must be speaking the truth and the other falsehood. There is no possible escape from this, and yet we have a conclusion by the chancellor in the latter part of this seventh paragraph which the testimony on neither side, so far as he cites it, will support. For all that there appears, this finding could well be regarded as a purely arbitrary conclusion. It may be that there can be found somewhere in the record that which fully justified it; but it is not for us to search through the testimony to find upon what it rests. Findings by a chancellor should vindicate themselves to the extent at least of showing a sufficient basis of fact. If there is any evidence in this case warranting a finding that if defendant did make the admissions testified against him, he did not mean what he said, it should appear and be made the subject of a special finding. If the four witnesses who testified for the plaintiffs are to be wholly discredited, with respect to the one vital point, and credited with respect to everything leading up to it, and the defendant himself, the only witness per contra, is to be credited with respect to the vital point, but discredited as to everything else, all of which is necessarily involved in this finding, we are entitled to know what considerations influenced the mind of the chancellor in reaching such result; otherwise, the burden of original inquiry is imposed on this court. We express no opinion whatever as to the merits of the controversy, and in so far as we have recited any of the details of it, our only purpose has been to make clear the necessity for fuller and more specific findings, with the considerations on which they are rested. The clear admission of the chancellor that he was at a loss to find precisely what happened in the conversation between the parties, renders his conclusions on the merits of the case of little value; besides, it imposes on us a duty which in the first instance is not ours, but which must be performed by some one before just conclusions can be reached. For the reasons stated, we have concluded to remand this record for fuller and more specific findings in accordance with the rules of equity practice, either side to have the right to file exceptions thereto sec. reg. It is accordingly so ordered.


author: Mr. Justice Mestrezat,

text:
    Bethlehem City Water Company v. Bethlehem Borough, Appellant.

      Corporations — Water companies — Boroughs—Implied contract — Water supply-. — “For use of inhabitants.”

    1. Where a water company erects its plant and proceeds to supply water to a particular territory in accordance with its chartered right, ánd thereafter, when a borough is erected out of a portion of the territory, continues to supply the inhabitants thereof with water and supplies the borough with water for fire protection at fixed rates, and, with the increase of the borough extends its mains and builds additional fire hydrants at the request of the borough, the water company cannot claim that by' virtue of any one of these acts, or all of them together, there was an implied contract between the water company and the borough to supply water to the borough, and that such contract had exhausted the power of the borough to supply water to its citizens by its own plant.
    2. It is only for the purpose of supplying water “for the use of the inhabitants” of a borough, and not for supplying water for municipal purposes, that a borough may adopt one of two methods which exhausts its municipal power and prevents it resorting to the other for a supply of water.
    . 3. It is settled doctrine that a municipal corporation, when exercising its function for the .general good, is not to be shorn of its power by mere implication and that the intention to restrict the exercise of its public powers must be manifest by words so clear as not to admit of two different or inconsistent meanings.
    Argued March 7, 1911.
    Appeal, No. 163, Jan. T.,.1910, by defendant, from decree of C: P-. Northampton Co., June T., 1909, No. 2, on bill in equity in case of Bethlehem City Water Company v. Bethlehem Borough et al.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Bill in equity to enjoin the defendant from issuing bonds and from laying mains and doing other things for the supply of water in a portion of the borough of Bethlehem formerly constituting the borough of West Bethlehem. Before Stewart, J.

      April 24, 1911:
    The facts appear by the opinion of the Supreme Court.

      Error assigned was decree awarding injunction.

      George R. Booth and John G. Johnson, for appellant.—
    The mere fact that a contractual relation was established between the municipality and the company was not the test of exhaustion of municipal power: Centre Hall Water Co. v. Centre Hall Boro., 186 Pa. 74; Boyertown Water Co. v. Boytertown Boro., 200 Pa. 394; Dorrance v. Bristol Boro., 224 Pa. 464.
    A municipal corporation, when exerting its functions for the general good, is not to be shorn of its powers by mere implication: Knoxville Water Co. v. Knoxville, 200 U. S. 22 (26 Sup. Ct. Repr. 224).

      J. Davis Brodhead, with him Herbert J. Hartzog, for appellee.
    Upon the incorporation of the borough of West Bethlehem it was optional with the municipality to provide water in one of two ways, either by constructing a water system of its own, or through an independent agency; it could not employ both methods at the same time, and when it had provided a water supply by contract with an independent agent it was without power to employ the alternative method, so long as the right of the independent agent to supply the water continued and was being rightfully exercised: Penna. Water Co. v. Pittsburg, 226 Pa. 624; White v. Meadville, 177 Pa. 643.
   Opinion by

Mr. Justice Mestrezat,

The borough of Bethlehem, Northampton county, was incorporated in 1845, and in 1854 became subject to the general borough Act of April 3, 1851, P. L. 320. The borough of West Bethlehem was incorporated under the same act in 1886 out of territory in Hanover township, Lehigh county. A small stream — the county line — lay between the two boroughs, which were consolidated in 1904 and constitute the present borough of Bethlehem, the defendant.

The Bethlehem South Gas and Water Company was incorporated by a special act of assembly, approved April 13, 1864, and was empowered to introduce into “the village of Bethlehem South, and the villages adjoining, in Saucon, Salisbury, and Hanover townships, in the counties of Northampton and Lehigh, a sufficient supply of gas and pure water.” The company was organized in 1867 and immediately thereafter began to supply Bethlehem South with water. In 1884, the company extended its mains and pipes into the village of Hanover township, which, in September, 1886, was incorporated as the borough of West Bethlehem. The company, on July 17, 1885, accepted the constitution of 1874; and on November 20, 1899, filed in the office of the secretary of the commonwealth its acceptance of the constitution and of the corporation Act of April 29, 1874, P. L. 68, and its supplements. The Mountain Water Company was incorporated in July, 1893, and the Bethlehem Consolidated Water Company in January, 1902. The three companies were, on April 19, 1902, merged into the Bethlehem Consolidated Water Company which, on December 3, 1903, sold and conveyed to the plaintiff, the Bethlehem City Water Company, all its franchises and property.

Prior to the incorporation of West Bethlehem borough the water company laid its mains and pipes through the principal streets of the former village, then in Hanover township, and, at the instance of the inhabitants, supplied them with water for domestic purposes and fire protection. At that time, there were eight fire plugs in the village. The company has, since the incorporation of the borough, continued to supply water for municipal and domestic purposes, and has enlarged and extended its plant to meet the increased demand of the growing population of West Bethlehem borough. The number of fire plugs at present is thirty-nine.

In December, 1908, the town council of the defendant borough passed an ordinance which was approved by the burgess providing for an election to determine upon an increase of the borough’s indebtedness for the purpose of erecting a water plant to supply water to the borough of Bethlehem, including the territory embraced in the former borough of West Bethlehem. The election was held and resulted in favor of the proposed increase of indebtedness. This bill was filed by the plaintiff company to enjoin the defendant borough and its officers from increasing the municipal indebtedness and from issuing any bonds for the purpose of raising funds for the construction of waterworks, and from laying mains in and supplying water to the territory formerly comprising the borough of West Bethlehem, now a part of the present borough. A perpetual injunction was issued as prayed for, and the defendant borough has appealed.

The plaintiff contends that the borough of West Bethlehem by its action and relations with the plaintiff company and its predecessors, resulting in an implied contract with the water company to furnish a supply of water to the borough, has exhausted its power to supply water to its citizens and is estopped from erecting and maintaining its own plant for that purpose. The question for decision in the case is, therefore, whether under the facts and the law the borough has a right to construct its own water plant.

It was found that “no express contract was ever entered into between the plaintiff or its predecessors and the borough of West Bethlehem, defining the relation existing between the said parties, either as to the amount which the borough was to pay for water supplied, or as to the term in which it was to be supplied; and no ordinance granting permission to occupy the streets was ever asked for or received by the plaintiff or its predecessors from the borough of West Bethlehem or the defendant borough.” This finding would ordinarily, under our cases, be a sufficient reply to the contention of the plaintiff company that the borough had selected another agency to supply water to its inhabitants and was therefore estopped from constructing its own plant for the purpose. It is argued, however, and upon this the company relies to sustain its position and the decree in its favor, that there is and has been since 1887 by reason of the act and conduct of the parties an implied contract whereby the boroughs, in consideration of the furnishing of water by the plaintiff and its predecessors, agreed not to supply the inhabitants of West Bethlehem borough with water through its own municipal agency. We find nothing in the record to sustain this contention. The company had erected its plant and was supplying water to the territory of West Bethlehem for domestic and fire purposes before the existence of the borough. This was done by virtue of its charter powers. Subsequent to the creation of the borough, it continued to perform the same service, not by reason of any contract with the borough, but in exercise of the same powers. It is said, however, and it may be conceded that after the incorporation of the borough in 1886 the water company enlarged its plant, extended its mains, that additional fire plugs were installed at different points in the borough at the request of the municipality and for which the borough paid an annual rent, that the council agreed to pay for fire plugs at certain locations if the company would extend its mains to those points, and that the borough published statements showing expenditures to the plaintiff company and its predecessors for water received for municipal purposes. How do either of these facts or all of them together establish an implied contract that the “borough agreed not to supply the inhabitants of West Bethlehém with water through its own municipal agency”? The general borough act of 1851 confers upon every borough incorporated under the act the “power to provide a supply of water for the use of .the inhabitants.” It is this power, when once exercised, that is exhausted and estops the borough from adopting another method to supply water.

Keeping in view the settled doctrine that a municipal corporation,- when exerting its function for the general good, is not to be shorn of its power by mere implication and that the intention to restrict the exercise of its public powers must be manifested by words so clear as not to admit of two different or inconsistent meanings, it is apparent that none of the acts of the municipality, suggested by the plaintiff, discloses an intention to contract with the water company to provide water “for the use of the inhabitants” of the borough or to make the company the municipal agent for such purpose. The water system of the plaintiff company, as we have seen, was constructed before the incorporation of the borough, and the inhabitants of that territory were being supplied with water by the company. It entered the territory and laid its mains and pipes without permission, invitation or request of the municipality and solely by virtue of the authority conferred by its charter. There was no express contract to supply water to the township or to the borough. The company, therefore, in furnishing water for fire protection occupied the same relation to the borough that it did to any other consumer. The borough paid the company fixed rates for the service as other consumers did. The extension of the mains and the erection of additional fire hydrants did not change the relation of the parties whether it was done at the request or command of the borough. There was no contractual relation between the parties by which the borough could enforce its demands. These facilities became a necessity as the borough grew and the consequent demand for water increased and were added in compliance with the company’s corporate duty and as a matter of business expediency to increase the revenues of the water company. The money expended by the company for these purposes was repaid by the increase in its revenues resulting from the greater number of consumers. Facilities for supplying water to additional private consumers became necessary and were furnished. Without the extension of its mains and the additional fire hydrants, the company could not exercise its charter power “to supply water to the public” within the territory for which it was incorporated, and the failure to do so would have endangered the charter and subjected the company to statutory proceedings to compel it to perform its corporate duties. It is equally true that without the additional facilities, the company could not have increased its revenues and its profits. Its action in acceding to the borough’s request to furnish additional facilities for supplying water for municipal purposes cannot, therefore, be regarded as evidence of an implied contract to supply water “for the use of the inhabitants” of the borough. It is for that purpose and not for supplying water for municipal purposes that a borough may adopt one of two methods which exhausts its municipal power and prevents it resorting to the other for a supply of water. There is not a single act by the borough disclosed by the record that shows an intention to divest itself of its power to construct its own system to provide a water supply for use of the inhabitants of the municipality. On the contrary, the intention not to do so distinctly appeared when, in 1904, the borough declined the company’s proposition that the parties should enter into a ten-year contract for water for fire protection and that the borough should take ten additional fire hydrants. The extent of its .relations with the water company was the purchase, at fixed rates, of water for fire protection and other municipal purposes and it, therefore, occupied the same relation to the company as any other consumer. It is idle to say that such conduct on the part of the borough was the adoption of another method for supplying water, and estopped the municipality from constructing its own plant in the exercise of its statutory power to furnish water to its citizens.

Our conclusion is in accord with our cases on the subject, as a careful consideration and a correct apprehension of the decisions will disclose. The most recent case is Tarentum Water Company v. Tarentum Borough, 230 Pa. 148. There, the water company laid its mains without authority of the borough, and after supplying water to the public for some time council authorized a contract which was subsequently executed by the proper officers of the borough and water company by which the latter was to furnish water to the borough for a certain number of fire hydrants at a fixed rate, and to consumers at the rate the company was then charging. The fire hydrants were then installed and the company extended its lines. We held that the borough was not precluded from furnishing its own supply of water for its inhabitants.

We are all of the opinion that there is nothing in this record that warrants a decree prohibiting the borough from constructing its own water plant.

This bill was not filed by the plaintiff company as a taxpayer, and it is not attempting to assert its rights as such. The validity of the election to ascertain whether the municipal indebtedness should be increased cannot, therefore, be determined in this proceeding. The question was properly .raised and was decided on a taxpayer’s bill filed in another case against the defendants in this case, and we file an opinion herewith in an appeal in that case, Stem v. Bethlehem Boro., infra, sustaining a decree holding the election to be invalid.

The decree of the court below is reversed, and the bill is dismissed at the cost of the appellee.


text:
    Stem v. Bethlehem Borough, Appellant.

      Election law — Ballots—Municipalities—Increase of debt — Constitutional law — Act of April 29,1903, P. L. 338.

    The ballots to be used at an election under the Act of April 29, 1903, P. L. 338, to ascertain whether the indebtedness of a borough shall be increased must be in the form prescribed by the act, and if the question submitted is printed on the ballot, but is not followed by the words “yes” and “no,” the election will be invalid.
    Argued March 7, 1911.
    Appeal, No. 164, Jan. T., 1910, by defendant, from decree of C. P. Northampton Co., June T., 1909, No. 3, on bill in equity in case of Leo A. Stem et al. v. Bethlehem Borough.
    April 24, 1911:
    Before Pell, C. J., Brown, Mestbezat, Potter and Stewart, J J.
    Affirmed,
    Bill in equity for an injunction to restrain the issue of borough bonds, and to declare void an election to increase borough indebtedness. Before Stewart, J.
    The only question involved was the validity of an election to increase the indebtedness of the borough of Bethlehem.

      Error assigned was decree declaring the election void and enjoining the issue of the bonds.

      George R. Booth and John G. Johnson, for appellant.

      Harry C. Cope, for appellees.
   Opinion by

Mr. Justice Mestrezat,

This is a taxpayer’s bill, and the appeal to this court raises the question of the validity of the municipal election held to determine whether the indebtedness of the borough should be increased for the purpose of constructing a water system to supply the defendant borough with water. The appeal, as we understood at the argument, is abandoned. The form of the ballot used at the election did not comply with the requirements of sec. 2 of the Act of April 29,1903, P. L. 338, 2 Purd. 1350, and for this reason the election was vitiated. We have quite recently held in McLaughlin v. Summit Hill Borough, 224 Pa. 425, this act to be constitutional, and that the ballots to be used at an election to ascertain whether the indebtedness of a borough shall be increased must be in the form prescribed by the act. This is decisive of the present case. The question submitted was printed on the ballot, but it was not followed by the words “yes” and “no,” as required by the statute. Section 4 of the act provides that “no ballot without the official endorsement shall be allowed to be deposited in the ballot box and none but ballots provided in accordance with the provisions of this act shall be counted.”

The decree is affirmed. -


author: Per Curiam,

text:
    Feighan, Appellant, v. Sobers.

      Judgment — Opening judgment — Partnership—Evidence.
    A judgment against a father and son as partners will be opened as to the father, where the latter testifies that he never signed the note on which the judgment was entered, nor authorized anyone to sign it on his behalf; that he had never been a partner with his son; that he had no knowledge of the plaintiff, nor had any business transactions with her, and that he was never indebted to her in any sum of money.
    Argued March 22, 1911.
    Appeal, No. 37, Jan. T., 1911, by plaintiff, from order of C. P. No. 4, Phila. Co., Dee. T., 1909, No. 1,803, making absolute rule to open judgment as to Jacob Sobers in case of A. L. Feighan v. Jacob Sobers and Aaron Sobers, trading as Jacob Sobers & Son.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment.
    From the record it appeared that the judgment in question was entered on a judgment note dated October 14, 1909, and signed as follows: “Jacob Sobers, Aaron Sobers, trading as Jacob Sobers & Son.” The judgment was entered on December 22, 1909. On June 22, 1910, Jacob Sobers, the father of Aaron Sobers, obtained a rule to open the judgment on an affidavit in which he averred as follows:
    This deponent avers that he has examined the original judgment note as filed in the office of the prothonotary, and says that he never signed the same, nor authorized anyone to sign the same in his behalf; that he knew nothing of the existence of this note until a few weeks ago.
    That he is not now, nor ever has been a member of the firm of Jacob Sobers & Son; that he is not now nor ever has been a partner of his son, Aaron Sobers.
    That he does not know A. L. Feighan, the plaintiff above named, and never had any business transactions whatever with her, and that he is not indebted to her in any sum whatever.
    April 24, 1911:
    The defendant supported his affidavit by depositions to the same effect.

      Error assigned was order making absolute rule to open judgment.

      J. H. Brinton, for appellant.

      Thomas F. Gross, for appellee.
   Per Curiam,

The averments by the appellee in his affidavit on which he obtained a rule to open the judgment entered against him, taken in connection with his deposition in support of the rule, justified the court in opening the judgment and letting him into a defense. The appellant has shown nothing that requires us to say there was an abuse of the court’s discretion.

Appeal dismissed.


text:
    Pentony v. Pennsylvania Railroad Company, Appellant.

      Equity — Buildings—Extensions over boundary line — Cornices—Contract.

    On a bill in equity the court will compel the removal of cornices, window sills, decorative ornaments and foundation walls extending beyond the defendant’s line and protruding over the adjoining property, if the protruding portions of the defendant’s building are parts of a permanent structure built up to the division line, and if it appears that by a recorded agreement between the defendant and plaintiffs’ predecessors in title the defendant agreed to remove on thirty days’ notice all projections of the property extending beyond its line, and that such notice was given.
    Argued March 23, 1911.
    Appeal, No. 64, Jan. T., 1911, by defendant, from decree of C. P. No. 1, Phila. Co., Sept. Term, 1907, No. 703, on bill in equity in case of Joseph Pentony and Patrick McCabe v. The Pennsylvania Railroad Company.
    April 24, 1911:
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction to compel the removal of cornices, window sills, ornamental terra cotta and granite bands, foundation walls, etc., on defendant’s building projecting over the plaintiff’s property. Before Ma-gill, J.
    From the record it appeared that the extension complained of were parts of a permanent structure built up to the division line. It also appeared that on March 28, 1904, the defendant and the plaintiff’s predecessors in title entered into an agreement, which was recorded, by which the defendant agreed to remove on thirty days’ notice all projections of its property extending beyond its line, and that such notice had been given. The court awarded the injunction.

      Error assigned was decree awarding an injunction.

      E. J. Sellers, of Sellers & Rhoads, for appellant.

      Daniel C. Donoghue, with him M. Hampton Todd, for appellees.
   Per Curiam,

The finding of the court below that the defendant has encroached upon the lots belonging to the appellees has not been assigned as error, and they are, therefore, entitled to the order requiring the appellant to abate and remove from their property so much of the foundation or retaining walls as extend beyond the dividing or property line of the premises. The decree requiring the defendant to abate and remove all parts of its building protruding or projecting upon or overhanging the appellees’ premises, is but an enforcement of the agreement of March 28,1904, between the appellant and the appellees’ predecessors in title.

Decree affirmed at appellant’s costs.