author: Mr Justice Potter,

text:
    Stilwell v. Smith, Appellant.

      Judgment — Foreign judgment — Suit on foreign judgment — Defense— Death of defendant — Judgment nunc pro tunc.

    A judgment entered against a defendant by a court of record of another state or territory after trial before the court without a jury, decision being reserved, and the entry of judgment being made nunc pro tunc as of the date of the trial, may be enforced against the estate of the defendant in this state, although the defendant himself died after the trial and before the actual entry of the judgment.
    The judgment of a competent court in another state being final and conclusive on the merits, no defense can be heard in an action upon it, which goes to the merits of the original controversy and no defense can be set up which might, with proper diligence, have been interposed in the original action.
    Argued May 21, 1907.
    Appeal, No. 273, Jan. T., 1906, by defendants, from judgment of C. P. York Co., Oct. T., 1903, No. 53, for plaintiff on trial by court without a jury in case of William H. Stilwell v. C. Elmer Smith, S. Fahs Smith, S. Perdon Miller and Susan E. Etnier, Executors of last will and Testament of S. Morgan Smith, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on a foreign judgment.
    Before Wanner, J.
    The case was tried by agreement by the court without a jury under the Act of April 22, 1874, P. L. 108.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned among others was (1) the admission of the record of the judgment of the Arizona court; (20) entry of judgment for plaintiff.

      J. F. Conroy, with him James St. Clair McCall, for appellant.
    If the Arizona case was fully submitted during the lifetime of the defendant, the court had no power to render judgment after his death nunc pro tunc as of a time prior to his death, when the court had previously, upon suggestion of such death of record, ordered of its own motion a postponement of further proceedings in the case “ in order to permit of the substitution in the meantime of the representatives of said deceased party,” such personal representatives not being so substituted.
    Unless the judgment rendered by the Arizona court is a final judgment, no action can be based upon it in this state. The courts of one state do not give effect to the interlocutory judgments or decrees of other states: Board of Public Works v. Columbia College, 84 U. S. 521; Railroad, etc., Co. v. Mercer, 6 W. N. C. 83; McClung v. McClung, 11 W. N. C. 122; Palmer v. Palmer, 2 Miles, 373.

      Charles A. Hawkins, with him J. S. Black, for appellee.
    The right exists in a court to enter judgment or decree nunc pro tunc where the evidence has all been submitted and the court has taken the case under advisement, ripe for decision: Mitchell v. Overman, 103 U. S. 62; Borer v. Chapman, 119 U. S. 587 (7 Sup. Ct. Repr. 312); judgment entered in 1878 nunc pro tunc as of 1871; Sharon v. Terry, 36 Fed. Repr. 337; Coughlin v. District of Columbia, 106 U. S. 7 (1 Sup. Ct. Repr. 37); Bell v. Bell, 181 U. S. 175 (21 Sup. Ct. Repr. 551); Currier v. Lowell, 33 Mass. 170; Wilkins v. Wainwright, 173 Mass. 212 (53 N. E. Repr. 397); Fitzgerald v. Stewart, 53 Pa. 343.
    June 25, 1907:
   Opinion by

Mr Justice Potter,

This was an action of assumpsit brought by the plaintiff against the executors of S. Morgan Smith, deceased, upon the record of a judgment obtained against S. Morgan Smith, in the district court of Maricopa county, territory of Arizona, and duly certified according to the provisions of the act of congress. The case was tried by agreement of the parties before the court of common pleas of York, county, Pennsylvania, without a jury, and resulted in the entry of judgment in favor of plaintiff for the sum of $3,057.55 and costs. Exceptions to the findings of fact and law by the trial judge were dismissed, and from, the final judgment the defendants have taken this appeal.

The record of the case in the Arizona court shows that the defendant,. S. Morgan Smith, appeared and answered the complaint, filed a counterclaim, and by his counsel waived a trial by jury, and appeared at the trial of the case before the court. Both the subject-matter of the suit and the person of the defendant were within the jurisdiction of the court. The case was tried on April 1 and 2, 1903, and the minutes of the court show, under date of April 2, that There being no further testimony offered on either side, and the evidence being closed, argument of the respective counsel followed, and the cause was fully submitted to the court for its consideration and decision ; and the same was by the court taken under advisement, and the decision herein reserved until a future day.” On April 3 defendant’s attorney dismissed the counterclaim which he had filed. On April 12, before any decision had been rendered or judgment entered by the court, S. Morgan Smith died, and on April 17 his death was suggested upon the record. On the same day the court, in order to permit the substitution in the meantime of the representatives of said deceased party,” ordered that further proceedings be postponed until May 18. The record does not show .that any representative of the deceased defendant was substituted; but the appellants state in their history of the case, that a special administrator of the estate was appointed by the probate court in Arizona, and at the hearing on May 18 was present in court by his attorney; and •the court below has found this to be the fact. On May 18 the Arizona court ordered that judgment be entered in favor of plaintiff and against defendant for $3,000 with interest and costs, and “ that said judgment be entered nunc pro tunc as of the date of submission of said cause, April 2, 1903.”

A writ of error was taken from this judgment by Beauchamp H. Smith as an intervening defendant, and was dismissed by the supreme court of Arizona for want of prosecution. The sum of $975 was collected in attachment proceedings in Arizona after entry of the judgment, and the present suit is brought to collect the remainder due thereon.

The first question raised by this appeal, is whether a judgment entered against a defendant by a court of record of another state or territory, after trial before the court without a jury, decision being reserved, and the entry of judgment being made nunc pro tunc as of the date of trial, can be enforced against the estate of the defendant in this state, the defendant himself having died after the trial, and before the actual entry of the judgment. We have no doubt whatever but that it can be so enforced, and we agree with the trial judge that it should be, in this case.

It was contended on behalf of the defendants in the court below that by the death of the defendant, while the cause was being held under advisement, the Arizona court lost its jurisdiction. This contention was most properly overruled. The authorities are strongly against it. Thus in Fitzgerald v. Stewart, 53 Pa. 343, Justice Strong said (p. 346): “ At common law the death of either a sole plaintiff or defendant, in any case, abated the suit; yet if, after verdict, either party died in vacation, judgment could be entered that vacation as of the preceding term, and it would be a good judgment, as of that preceding term. The death of the party did not abate the suit in any such sense as to render the court powerless to enter a judgment to take effect from a day prior to the death. So, if either party died after a special verdict, and pending the time taken for argument or advisement thereon, or on a motion in arrest of judgment or for a new trial, judgment could be entered at common law after his death as of the term in which the postea was returnable, or judgment would otherwise have been given nunc pro tunc, that the delay arising from the act of the court might not turn to the prejudice of the party: Tidd’s Practice, 846, 847. Personal actions now do not die with the person any more completely than all actions did at common law. There is, and there always has been, in the courts, a common-law power to enter judgment nunc pro tunc, at their discretion, regulated, it is true, by certain rules. To this a statutory power has been added. The statute of 17 Charles II, c. 8, enacted that where either party, in any action, personal, real or mixed, dies between verdict and judgment, his death shall not be alleged for error, so as the judgment be entered within two terms after the verdict. This statute is reported to be in force in Pennsylvania: Roberts’ Digest, 369. The language of the act is very general. It applies to all actions, and so it has been construed. It recognizes, but does not attempt a substitute for, the common-law power immemorially asserted by courts, to give judgments to take effect from a date prior to their rendition, and to operate as if they had been given at that time. Sometimes the power is exercised under the statute, and sometimes independently of it. In Murray v. Cooper, 6 S. & R. 126, a judgment was entered nunc pro tunc, as of a date eight years prior to its entry, and Chief Justice Tilghman after referring to the statute of Charles II. said : ' In such a case the plaintiff is entitled to his judgment by virtue of the statute, without calling upon the court to exercise any extraordinary power. But independently of the statute, the court has power, in order to do justice, to enter judgment at their discretion, as of a time when it ought' to have been entered.’ ”

The same principle has been followed in federal courts. Thus in Mitchell v. Overman, 103 U. S. 62, Mr. Justice Harlan said (p. 64): “The adjudged cases are very numerous in which have been considered the circumstances under which courts may properly enter a judgment or decree as of a date anterior to that on which it is, in fact, rendered. -We deem it unnecessary to present an analysis of the authorities, some of which are cited in note to this opinion, but content ourselves with saying that the rule established by the general concurrence of the American and English courts, is that where the delay in rendering judgment or decree arises from the act of the court, that is, where the delay has been for its convenience, or has been caused by the multiplicity or press of business or the intricacy of the questions involved, or for any other cause not .attributable to the laches of the parties, but within the control of the court, the judgment or decree may be entered retrospectively, as of a time when it should or might have been entered up. In such cases, upon the maxim, Actus curiar neminan gravabit, which has been well said to be founded upon justice and good sense and to afford a safe and certain guide for the administration of justice, it is the duty of the court to see that the parties did not suffer by the delay. "Whether a nunc pro tunc order should be made, depends upon the circumstances of the peculiar case. It should be granted or refused, as the justice of the cause may require.” To the same effect is Borer v. Chapman, 119 U. S. 587. In this case the judgment sought to be enforced was entered against a deceased defendant nunc pro tunc, and it was held (p. 596) that the rule of Mitchell v. Overman, supra, applied. Mr. Justice Matthews said (p.602): The date of that entry (nunc pro tunc) is by a fiction of the law made and considered to be the true date of the judgment for one purpose only, and that is to bind the defendant by the obligation of the judgment entered as of a date when he was in full life.”

ISTeither the accuracy of the record nor the conduct of the case in the Arizona court can he inquired into here. Beyond the question of jurisdiction of the court, or of payment of the judgment, we cannot go: Hughes v. Schreiner, 202 Pa. 488. The cases bearing upon the degree of faith and credit to be given in one state, to the records of judicial proceedings in the courts of another state, are collected and clearly discussed by Judge Henderson in Levison v. Blumenthal, 25 Pa. Superior Ct. 55. When it is shown that the court of another state has jurisdiction, its judgment is conclusivo and cannot be inquired into: Guthrie v. Lowry, 84 Pa. 533. The law upon this question is thus summed up in 23 Cyc. 1561-62: “ In an action on a judgment recovered in another state, defendant may plead any matters absolutely impeaching the validity of the judgment, or showing a payment, satisfaction, or release of it, or where equitable defenses are allowed, any matters which would justify the grant of an injunction to restrain the enforcement of the judgment against him, but he cannot set up any defense to the original cause of action which might and should have been interposed in the suit in which the judgment was rendered. The judgment of a competent court in another state being final and conclusive on the merits, no defense could be heard in an action upon it, which goes to the merits of the original controversy, and no defense can he set up which might, wilh proper diligence, have been interposed in the original action.”

That the judgment in this case, entered in the Arizona court, was final, and was so regarded by that court, is shown by the fact that execution was issued and a considerable sum obtained thereunder in Arizona, which has been credited upon the judgment. We see no merit in any of the specifications of error. They are all overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Locher's Estate
    (No. 1).

      Orphans’ court — Jurisdiction—Tort—Decedents’ estates.

    The orphans' court has no jurisdiction to pass upon a claim against the estate of a decedent, based upon the negligence and malfeasance of the decedent as president of a trust company where there is no evidence that any money had been received by the decedent personally as a result of his tortious conduct.
    Argued May 21, 1907.
    Appeal, No. 373, Jan. T., 1906, by J. H. Rathfon, Receiver of the City Saving Fund and Trust Co., from decree of O. C. Lancaster Co., Feb. T., 1905, No. 30, dismissing exceptions to adjudication in Estate of Charles H. Locher, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Supreme Court states the case.

      Error assigned was in refusing exceptions to adjudication.

      William H. Keller, with him John E. Malone and John A. Coyle, for appellant.
    There can be no question that the orphans’ court has jurisdiction to decide the amount of debts of a decedent and to whom they are due: Curcier’s Estate, 28 Pa. 261. Embezzlement is a crime. It is also a tort. If the party wronged, however, chooses to overlook both the crime and the tort, he may, nevertheless, sue the wrongdoer in an action of assumpsit on the implied or constructive contract to pay back to him the money thus wrongfully taken: Hertzog v. Hertzog, 29 Pa. 465; McMurray’s App., 101 Pa. 421; Graham v. Cummings, 208 Pa. 516; McCullough v. Gas Co., 213 Pa. 110; McAvoy v. Trust Co., 27 Pa. Superior Ct. 271; Miller v. Summers, 13 Pa. Superior Ct. 127; Hopkins’s App., 7 Sadler, 143; McCullough v. McCullough, 14 Pa. 295; Pryor v. Morgan, 170 Pa. 568; Michener v. Dale, 23 Pa. 59.

      W. U. Hensel, with him W. R. Brinton and Burr, Brown & Lloyd, for appellee.
    The following cases show that the law in this state does not permit a party at his option to waive a tort and sue in assumpsit, but that he must show clearly that the case is one where such practice is recognized: Satterlee v. Melick, 76 Pa. 62; Boyer v. Bullard, 102 Pa. 555; Wood v. Virginia Hot Springs Co., 202 Pa. 40.
    Actions for torts are ex delicto and are not within the jurisdiction of the orphans’ court: Snyder’s App., 36 Pa. 166; Ake’s App., 74 Pa. 116; Willard’s App., 65 Pa. 265; Robinson’s Estate, 6 W. N. C. 352; Haage’s App., 17 Pa. 181; Bumm’s Est. 8 Pa. Dist. Rep. 191.
    June 25, 1907:
   Opinion by

Mr. Justice Potter,

Charles H. Locher, the decedent, was at the time of his death, October 13, 1904, president of the City Saving Eund and Trust Company of Lancaster. Three months later the trust company was found to be insolvent, its doors were closed, and J. IT. Rathfon, the appellant, was appointed its receiver.

Upon the audit of the account of the administrators of the estate of Charles H. Locher, the receiver presented a claim for $188,819.35, being the amount of loss which it was claimed had been sustained by the trust company on certain loans made by Locher as president, from the funds of the company to a partnership of which he was a member, and to his son, and to two corporations in which he was largely interested. It is claimed that these loans were made without the knowledge or approval of the board of directors ; that the parties to whom the loans were made were all insolvent; that the security taken was insufficient; that the transactions were a fraud upon the trust company; and that the decedent should be held personally liable for the loss upon the loans thus improperly made by him. The receiver also presented a claim for $24,412.50, for loss sustained by the trust company, by reason of the fact, as alleged, that the decedent while president, without the knowledge, consent or approval of the board of directors, sold bonds and securities, owned by him, to the company at prices which were grossly exorbitant and far above their market value.

The orphans’ court held that it had no jurisdiction to pass upon the claims, saying in its opinion : “ The gist of the contention is that the decedent was guilty of malfeasance in office, and ought to be held responsible in damages; which may be correct; but, if so, the wrong forum has been selected in which to thresh it out. The decedent may have been a tort feasor, but he neither made nor indorsed any of these notes, nor have the proceeds of any of them, as in other cases, been traced to his account. If he was guilty of tortious or criminal acts, they must first be investigated by a court of competent jurisdiction before exceptant can appeal to us for help. There is no restriction of the powers of this court within its jurisdiction, but the subjects of its jurisdiction are restricted. Actions ex delicto must be wrestled with in other courts. After damages have been liquidated, when there is a judgment on a verdict, it may be certified to this court and participate in a distribution. The verdict of a jury, however, first is necessary. A tort feasor cannot be deprived of his common-law right of a trial by jury.” Exceptions were filed by the receiver to this action of the orphans’ court, and from the decree dismissing the exceptions, the receiver has taken this appeal. It is urged upon behalf of the appellant, that Locher, by means of the loans in question, misappropriated the money of the trust company, and that a constructive contract therefore arose for the return by him of the money thus taken from the company. But it does not appear from the testimony that the proceeds of the loans in question passed into the possession of the decedent. The loans may have been negligently made; the decedent may have been liable in tort for the negligent performance of his duties as president; but it does not appear from the evidence that he benefited individually by the transaction.

Counsel for appellant contends that the tort of the decedent may be waived, and his estate held liable upon a constructive contract, to make good the funds lost to the trust company through the neglect or misconduct of the decedent. This might be true if the money had been received by the decedent, as a result of the tort. But no authority has been cited which supports the suggestion that recovery may be had upon an implied promise to pay damages caused by the negligence of the defendant. The claim of the appellant to recover in this case is based entirely upon the wrongful acts of the decedent, due proof of which must be made in the appropriate forum. Under the settled practice, actions for torts are not within the jurisdiction of the orphans’ court. The appellant in this case does not stand as a creditor, with the right to require the fulfillment of an obligation or a contract. As Judge Hanna said in Robinson’s Estate, 6 W. N. C. 352, the orphans’ court has simply “ to pass upon the claims of creditors of the decedent and make distribution among the heirs or legatees. If a claimant stands in any other position he must proceed in another forum.”

Even in a proceeding to enforce specific performance of a contract for the sale of land, made by a decedent, the orphans’ court cannot make a decree against the representatives of the vendor for an amount overpaid by the vendee: Ake & Feay’s Appeal, 74 Pa. 116. Nor does it have jurisdiction to settle complicated accounts between a claimant and a decedent; such an account can only be adjudicated in a court of general jurisdiction: Miller v. Fulton, 206 Pa. 595. This court said, by Justice Gordon, in Fuller’s Appeal, 98 Pa. 534, that the orphans’ court exceeded its jurisdiction in attempting to try and dispose of a question involving at most only the breach of a contract made by the appellant with the decedent in his lifetime.” It must be remembered, too, that in the claims which the receiver of the trust company urged upon the court, the liability was of a secondary nature. It was for the payment of notes made by other parties, who were in default, and it was for an amount sufficient to make good only that which the trust company may not be able to realize from the makers of the notes, who are primarily liable.

We agree with the view of the court below, that the orphans’ court was without jurisdiction to determine the liability of the decedent, for the claims as presented, founded upon his alleged tortious acts.

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


text:
    Locher’s Estate
    (No. 2).

      Executors and administrators — Misconduct—Surcharge—Failure to realize on bonds.

    Where the administrators of a decedent's estate have an opportunity to realize cash for bonds owned by the estate, but instead of doing so exchange the bonds for stock of a corporation, which proves to be practically worthless, the administrators are properly surcharged with the loss.
    Where the administrator of an insolvent estate pays out of his own funds a note of the decedent, and redeems stock pledged as collateral for the'note, which stock the administrator knows to be worthless, and thereafter the administrator repays himself from the funds of the estate, he is properly surcharged with the wrongful payment of the note.
    A finding by the auditing judge that an administrator could have sold stock at a particular price, if he had made proper efforts, is a finding of fact, and as such is entitled to as much weight as the verdict of a jury, and will be set aside only for manifest error.

      Executors and administrators — Commissions—Estoppel.
    Where administrators are guilty of gross negligence in dealing with the assets of the estate, sacrifice the securities by sales under disadvantageous circumstances, and fail to deposit large sums of money in bank, they are properly deprived of all commissions or compensation for services.
    Argued May 21, 1907.
    Appeal, No. 372, Jan. T., 1906, by David R. Locher and Lila Reno Locher, from decree of O. C. Lancaster Co., Feb. T., 1905, No. 20, dismissing exceptions to adjudication in Estate of Charles H. Locher, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    Before Smith, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to adjudication.

      Reynolds D. Brown, of Burr, Brown & Lloyd, with him W. U. Hensel and W. R. Brinton, for appellant.
    The administrators or trustees ought not to be surcharged except when they are guilty of either fraud or supine negligence equivalent to fraud: Springer’s Est., 51 Pa. 342; Leslie’s App., 63 Pa. 355; Dundas’s App., 64 Pa. 325; Heineman’s App., 92 Pa. 95; Semple’s Est., 189 Pa. 385; Waddell’s Est., 196 Pa. 294.
    The mere fact of a surcharge is not, in itself, sufficient to justify the forfeiture of commissions: Price’s Est., 81 Pa. 263; Palmer’s Est., 2 Del. County Rep. 180.
    In the absence of fraud or bad faith, commissions will not be forfeited for less than gross negligence: Fross’s App., 105 Pa. 258; McManus’s Est., 14 Pa. C. C. R. 379; Merkel’s Est., 131 Pa. 584; Bechtel’s App., 7 Pa. Superior Ct. 451.

      William H. Keller, with him John E. Malone and John A. Coyle, for appellee.
    The finding of an auditor will not be disturbed on an appeal except for flagrant error: McConnell’s App., 97 Pa. 31; Fahnestock’s App., 104 Pa. 46; Sawtelle’s App., 84 Pa. 306; Lewis’s App., 127 Pa. 127.
    Examples of actions on the part of accountants such as warrant surcharging, under the decisions of this court, are found in: Leslie’s Appeal, 63 Pa. 355; Gilbert’s Appeal, 78 Pa. 266; Chambersburg Saving Fund Assn.’s App., 76 Pa. 303; Semple’s Est., 189 Pa. 385.
    Commissions were properly disallowed: Moore’s App., 10 Pa. 435; Price’s Estate, 81 Pa. 263; Swartswalter’s Account, 4 Watts, 77; Jackson’s Estate, 18 W. N. C. 568; Hoffer’s Estate, 156 Pa. 473.
    June 25, 1907:
   Opinion by

Mr. Justice Potter,

This is an appeal by the administrators of Charles H. Locher, deceased, from the decree of the orphans’ court dismissing exceptions filed by them to the adjudication of their account, in which they were surcharged to the extent of $26,007.15. The first assignment of error complains of a surcharge of $8,145.75, being the amount unaccounted for, of the value of certain bonds of the Eastern Milling and Export Company, which were owned by the decedent in his lifetime, and by him loaned to his son, David R. Locher, one of the administrators. The bonds were of the par value of $25,000, but their actual value at the time of decedent’s death, as fixed by the dividend paid by the receiver of the company, was a little over thirty-two per cent, of their par value, or $8,153.75.

The evidence does not show any definite contract made by decedent with reference to the disposition of these bonds. It does appear that D. R. Locher used these bonds belonging to the estate, in settlement of a purchase which he made of certain of the mill properties formerly belonging to the Eastern Milling and Export Company. These bonds were assets of the estate in the hands of the administrators. It was their plain duty to convert them into cash, and this they could have done by collecting the dividend paid by the receiver. Instead of doing this, and without permission from the court, and without notice to the creditors, they entered into a transaction by which the bonds were exchanged for stock of the Philadephia Elour. Milling Company, which proved to be practically worthless. Under these circumstances, we have no doubt whatever that the administrators are liable for the value of the securities thus misapplied by them. There was nothing to show that the estate was interested in or could in any way have benefited by the transaction of L). R. Locher. The sound principle is stated in Robinett’s Appeal, 36 Pa. 174, where Justice Woodward said (p. 189): “ The general rule of equity as stated by Judge Story in Oliver v. Piatt, 44 U. S. 333, is that the gain made by the trustee by a wrongful application of the trust fund shall go to the cestui que trust, and all the losses shall be borne by the trustee. This principle was substantially recognized and applied in Callaghan v. Hall, 1 S. & R. 241; Wiley’s Appeal, 8 W. & S. 244, and in Emeret’s Estate, 2 Pars. Eq. Cas. 195.” And after discussing the authorities the rule stated is expressly adopted as the law of Pennsylvania. And in Norris’s Appeal, 71 Pa. 106, Judge Paxson said (p. 125) in an opinion approved by this court: “ It is a well-settled rule that where a trustee speculates with the trust funds he may be held to profits or interest, at the option of the cestui que trust. Profits, if the investment has been successful, and interest if it has been disastrous. In no event will the trustee be allowed to make a profit out of the trust fund. The law holds out no inducements to trustees so to misapply the estate. He may lose, but he cannot make by so doing.” The first assignment of error is overruled.

The question raised by the second assignment of error relates to a surcharge of $5,143.90, being the difference between the price of $50.00 a share realized by the administrators on the sale of the stock of the Lancaster Electric Light, Heat and Power Company, and the price of $75.00 a share which it was held by the auditing judge should have been obtained for this stock. The interest of the decedent in the company was ascertained to be twenty-six unincumbered shares and a one-third interest in 685 shares which were pledged to the City Trust Company as collateral for a loan. All of this stock was sold at private sale by the administrators at $50.00 a share, its par value. The auditing judge finds as a matter of fact that if the administrators had made proper efforts, they could have sold the stock for at least $75.00 per share, and he surcharged them with the difference between that figure and the price which they actually obtained.

Under the familiar rule that the finding of an auditing judge, or an auditor, upon a question of fact is entitled to as much weight as the verdict of a jury, and will be set aside only for manifest error, we see no reason whatever for interference with this finding.

The third assignment complains of a surcharge of $9,017.50, being the amount paid to the Union Trust Company of Philadelphia in settlement of a note of the decedent. The note was secured by stock of the City Saving Fund and Trust Company of Lancaster, of which decedent was president at the date of his death, October 13, 1904. His son, David R. Locher, one of the accountants, succeeded him as president of the company. It appears from the evidence that on or about January 6,1905, the state bank examiner, after an examination of the affairs of the company, informed Mr. Locher, that the surplus of the trust company was entirely wiped out, and its capital impaired, if not also wiped out; and that in view of the loans to himself and to other family connections and interests of the deceased president, he would have to protect the bank. Mr. Locher replied that he thought he could raise $100,000 within a week, without disturbing the assets of the institution, and the bank examiner allowed him a week to negotiate along that line. His efforts were unsuccessful, and on J anuary 21, the trust company closed its doors, and a receiver was ap* appointed. Its stock proved to be worthless. Meanwhile, on January 14, D. R. Locher paid to the Union Trust Company the amount of the decedent’s note and interest, and redeemed the stock of the City Saving Fund and Trust Company, which had been pledged as collateral. From the standpoint of the interest of the estate, no reason appears for this action. Payment of this note was made by Mr. Locher not with money of the estate, but with his own funds, which he afterwards replaced by payment to himself at various times from the funds of the estate. The auditing judge 'surcharged the accountants with the full amount of the note thus paid, but allowed them a dividend as creditors of the estate, the dividend so allowed being $805.91.

Where the administrator of an insolvent estate pays a note of the decedent in full, he is properly to be surcharged with the amount of the wrongful payment. If the collateral attached to the note had been worth more than the amount loaned on its security to the decedent, it would have been the duty of the administrators, to redeem the collateral for the purpose of obtaining the surplus value; but in the present case, Mr. Locher, the active accountant, Avas president of the trust company whose stock constituted the collateral, and he must be presumed to have had knowledge of its entire lack of value. Only a few days before the note was paid, he had been informed by the bank examiner that the surplus fund of the trust company was gone, and its capital greatly impaired, and at the time he was vainly endeavoring to raise funds to make good the impairment. A week later, the trust company went into the hands of a receiver. There was certainly no reason apparent why in the interest of the estate, this note should have been paid in full, secured as it was only by the stock of a failing corporation. In addition is the fact that the note was not paid with the money of the estate, but with accountant’s own money, which Avas repaid after the failure of the trust company from the funds of the estate. We think that accountants were properly surcharged in this respect.

In the fourth assignment of error, complaint is made of the refusal of commissions. The accountants claim $3,700 as compensation, and the court surcharges them with the full amount, holding that by reason of mismanagement of the estate all right to compensation had been forfeited. The reasons for so holding are set forth at length in the opinion dismissing the exceptions to the adjudication, and are summed up by the statement that “ The conduct of these administrators does not exhibit that care, prudence and good faith which the law demands.” The facts recited in the opinion are sufficient to justify the action of the court. As Justice Dean said, in Hart’s Estate, 203 Pa. 496 (p. 501): Taking the facts as the court states them, and as the evidence developed them, it may well say, ‘ Enough has been shown to warrant the disallowance of all compensation; ’ in fact, it warranted no other than a dis-allowance of all compensation. The personal regret for the trustee’s conduct should not have moved the court to shrink from the judicial decree which logically followed the finding of facts — one refusing him all compensation. In the real sense of the word, it is not the infliction of a ‘ penalty,’ for there is another court better adapted both in its procedure and judgment to that end; in the orphans’ court, it is simply a refusal to reward him as for doing well that which he has done ill. That he did not intentionally wrong his cestui que trust is immaterial on the question of compensation; if they have suffered by his neglect and mismanagement, he has no claim in law or equity to be paid for that sort of management.”

As far back as Stehman’s Appeal, 5 Pa. 413, this court said: “ Compensation to trustees is allowed in this and our sister states, as the reward of faithful execution of the trust confided. Integrity, industry, intelligence and enlightened activity in the trustee are the qualities which command reward. To compensate sloth, ignorance, reckless confusion and procrastinating delay, by which the interests of the cestui que trust are impaired, instead of being promoted, would be to prevent the very object our system has in view in allowing compensation to trustees, by offering a premium to incapacity or dishonesty.”

Iri the present case the manner in which the securities of the estate were dealt with by the accountants, and the lack of prudence displayed in exposing them to sale under disadvantageous circumstances; the apparent disregard, or the sacrifice in some instances, of the interests of the estate; the careless way in which the cash was kept and the failure to deposit large sums in bank; all these matters taken together as indicating the character of the services rendered, seem to justify the action of the court below in refusing to allow commissions to. the accountants.

The appeal is dismissed at the cost of appellants, and the decree of the orphans’ court is affirmed.


text:
    Kunkle, Appellant, v. Lancaster County.

      Negligence — County bridge — Contributory negligence — Nonsuit.
    Where a woman riding in a wagon permits the driver to drive deliberately into a swollen stream in an attempt to find and cross a low sagging county bridge without guard rails, and hidden from sight by the muddy water, and as a result the woman is precipitated into the water and drowned, no recovery can be had from the county for her death, because of her contributory negligence.
    Argued May 22, 1907.
    Appeal, No. 131, Jan. T., 1907, by plaintiff, from order of C. P. Lancaster Co., Oct. T., 1905, No. 13, refusing to take off nonsuit in case of Francis Kunkle v. Lancaster County.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s wife.
    Before Hassler, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in refusing to take off compulsory non-suit.

      B. F. Davis, for appellant.
    The plaintiff’s wife was an entire stranger to the place, had never driven over the road before, nor never on the bridge before. She was riding in her father-in-law’s team, driven by him, and was returning to her home in Lancaster from a visit to her father-in-law. We contend that it was gross negligence, on the part of the defendant in this case, and no contributory negligence on the part of the plaintiff’s decedent: Francis v. Franklin Twp., 179 Pa. 195; Boone v. East Norwegian Twp., 192 Pa. 206; Yoders v. Amwell Twp., 172 Pa. 447; Newlin Twp. v. Davis, 77 Pa. 317; Burrell Twp. v. Uncapher, 117 Pa. 353; Plymouth Twp. v. Graver, 125 Pa. 24; Finnegan v. Foster Twp., 163 Pa. 135; Little v. Telegraph Co., 213 Pa. 229; Jones v. R. R. Co., 202 Pa. 81; Faust v. Ry. Co., 191 Pa. 420; Humphreys v. Armstrong County, 56 Pa. 204; Sheridan v. Palmyra Twp., 180 Pa. 439; Ryan v. Ardis, 190 Pa. 66; Merriman v. Phillipsburg Borough, 158 Pa. 78; Boro, of Easton v. Neff, 102 Pa. 474; R. R. Co. v. White, 88 Pa. 327; Grambs v. Lynch, 4 Penny. 243; Forks Twp. v. King, 84 Pa. 230.

      John A. Coyle, of Coyle & Keller, with him N. Franklin Hall, for appellee.
    One who knows, or by ordinary care may know of a defect in a highway, and voluntarily undertakes to test it -when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect: Crescent Township v. Anderson, 114 Pa. 643, 647; Winner v. Oakland Twp., 158 Pa. 405; Railway Co. v. Taylor, 104 Pa. 306; Bailey v. Brown Twp., 190 Pa. 530; Boyle v. Boro. of Mahanoy City, 187 Pa. 1; Decker v. East Washington Borough, 21 Pa. Superior Ct. 211.
    Where one has the choice of two ways, one safe and the other dangerous, and chooses the latter, he is responsible for all injuries received thereby: Haven v. Bridge Co., 151 Pa. 620; Hill v. Tionesta Twp., 146 Pa. 11; Erie v. Magill, 101 Pa. 616; Forks Twp. v. King, 84 Pa. 230.
    Though the negligence of her father-in-law cannot be imputed to the plaintiff’s wife, “ she must be held for her own negligence.” The immunity is not absolute to the extent of excusing reasonable caution in the face of patent danger: Crescent Twp. v. Anderson, 114 Pa. 643; Winner v. Oakland Township, 158 Pa. 405; Dean v. R. R. Co., 129 Pa. 514; Dryden v. R. R. Co., 211 Pa. 620, 623.
    The facts were not in dispute. The testimony produced by the plaintiff of itself clearly showed the decedent’s negligence: D., L. & W. R. R. Co. v. Cadow, 120 Pa. 559; Baker v. Gas Co., 157 Pa. 593; Myers v. R. R. Co., 150 Pa. 386.
    June 25, 1907:
   Opinion by

Mr. Justice Potter,

The appellant here complains of the refusal to take off a judgment of compulsory nonsuit. This action was brought to recover damages for the loss of plaintiff’s wife, who was drowned on August 25, 1905, while attempting to cross Beaver Creek, upon a bridge maintained by the county of Lancaster. The structure was a low one, only about three feet above the water at the ordinary stage, and was about forty-one feet long and sixteen feet wide. It was without guard rails at the side, and its construction was such that it sagged under the passage of a horse and wagon. On the day of the accident, Beaver Creek was very high, so that it flowed over the bridge to a depth of from two to eight inches, according to the testimony of different witnesses. The water running over the bridge was muddy and the bridge could not be seen, though its location could be fixed by a small wave, on the upper side of the bridge. The roads and fields on either side of the bridge were covered with water, which, on the south side, extended 250 to 300 feet from the bridge. About ten o’clock in the morning of that day, Benjamin Kunkle, the father of the plaintiff, accompanied by the wife of the plaintiff, was driving to Lancaster from his home. When they reached a point about 350 feet from the bridge, where they could see across the water in which the bridge was supposed to be, they stopped and waited for two teams that were coming across the bridge and through the water between them and the bridge. When one of these teams reached them, Benjamin Kunkle, in the hearing of plaintiff’s wife, asked the driver of it if the bridge was there, and was told it was when he crossed. Upon receiving this information, he, with the plaintiff’s wife, started to drive through the water and over the bridge, and when about the middle of it, a log came down the stream and struck the bridge, causing the horse to shy and step off the bridge, precipitating plaintiff’s wife and the father into the water, where they both were drowned.

The facts being undisputed, the trial judge felt that no other inference than that of contributory negligence could be drawn, and he directed a judgment of compulsory nonsuit. Our examination of the evidence has satisfied us that his conclusion was right. This case is closely ruled by the decision in Crescent Township v. Anderson, 114 Pa. 643. There, as here, the plaintiff was driven by her father into a dangerous place, and it was held that she was not justified in braving a known danger, holding the township for damages; that having willingly-joined with the driver in testing the danger, the plaintiff was guilty of negligence, and must assume the consequences of her act. The same principle is maintained in Winner v. Oakland Township, 158 Pa. 405, and in Dryden v. Penna. R. R. Co., 211 Pa. 620. In the present case, while the negligence of the driver was not to be imputed to the plaintiff’s decedent, yet she was properly hold accountable for her own lack of care. The situation was entirely open to her view. She permitted herself to be driven into the swollen stream and onto a submerged bridge. As the trial judge says, she took the chance of getting over safely, and that chance resulted in her death. In permitting herself to be driven into such a dangerous place, she took all the risk incident to the crossing, not merely that of missing the bridge, or of finding it impassable, but as well that of fright to the horse from such an unusual situation, and the floating debris that might come down the stream. The bridge was not intended to be used as a submerged highway. The flood produced a temporary but most unusual condition of affairs. Driving deliberately into a swollen stream, in an attempt to find and cross a low sagging bridge without guard rails and hidden from sight by muddy water was certainly a reckless procedure. The negligence of the plaintiff’s decedent, and that of the father, who was driving, is emphasized by the fact, as it appears frotn the evidence, that the point at which they stopped just before entering the water was at the junction of another road, into which they might have turned, and gone upon their way, without driving into the obviously dangerous situation which lay in front of them.

The responsibility of deciding this case was properly assumed by the trial judge, and he discharged a plain duty, in drawing from the undisputed facts, the inference of contributory negligence upon the part of the decedent.

The judgment is affirmed.


author: Mr. Chief Justice Mitchell,

text:
    Allen, Appellant, v. Hirlinger.

      Wills — Life estate — Widow—Power of sale — Consumption of estate.

    Where a will gives property by words which primarily import a fee, but adds restrictions inconsistent therewith, the question is whether the intent is to give a lesser estate, or to impose restraints upon the estate given. Cases of conflicting provisions are to be classified on this line of distinction.
    While a devise for life, with an unlimited power to consume, does not necessarily imply a fee, yet it does enable the devisee to convey in fee. The power to consume realty includes the power to convey.
    Testator directed as follows: “All the balance, or whatever may remain then of my estate, real, personal and mixed, I give, devise and bequeath to my beloved wife whom I desire to be the real owner thereof, and for her only proper use, benefit and behoof, during her natural life, or so long as she remains my widow, with, full permission to her to use and live therefrom as her necessities may-require and she to have the full ownership thereof, the same as I now have, and have had during my natural life. When my beloved wife dies, my will is, whatever may then remain of my estate, real, personal or mixed, I desire that the said remaining portion, if any, be given to my beloved daughter.” Held, that while the widow did not take a fee simple, she had a power to consume the real estate, and therefore a power to convey it, and make a good title.
    Argued May 23, 1907.
    Appeal, No. 199, Jan. T., 1907, by plaintiff, from judgment of Superior Ct., Oct. T., 1905, No. 205, affirming judgment of C. P. Lancaster Co., April T., 1906, No. 9, for plaintiff on case stated in suit of Leonora Allen v. J. W. Hirlinger.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Appeal from the Superior Court. See 33 Pa. Superior Ct. 113.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      Wm. R. Brinton, for appellant, Leonora Allen.

      Wm. S. Furst, for appellee, J. W. Hirlinger.

      C. E. Montgomery and J. W. Denlinger, for J. W. Denlinger.
    June 25, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

The testator directed the payment of his debts and a small legacy to his daughter and then devised the residue of his estate to his wife for life or widowhood with permission to use and live therefrom and to have the full ownership, the same as he had himself during his life, and at her death whatever should remain to be given to his daughter.

The class of wills to which this belongs present inherent difficulties in construction by their indication of an intent not accurately defined in the testator’s own mind, if not of double and to some extent conflicting intents. The testator gives to the first taker the estate, or, what is practically the same thing, the power to consume the whole and yet manifests his expectation at least if not his intention, that it shall not all be consumed. These two purposes, manifestly present in his mind, but not accurately defined, and their possible conflict perhaps not perceived at all, at once raise the question, has the will limited the estate given, or has it attempted to deprive the estate given of some of its essential legal properties ? The cases must be classified on this line of distinction. In Good v. Fichthorn, 144 Pa. 287, it was said: “ The true test of the effect of language apparently at variance with other parts of the devise, is whether the intent is to give a smaller estate than the meaning of the words of the gift standing alone would import, or to impose restraints upon the estate given. The former is always lawful and effective, the latter rarely, if ever; the first, because the testator’s intention is the governing consideration in the construction and carrying out of a will; the second, because even a clear intention of the testator cannot be permitted to contravene the settled rules of law by depriving any estate of its essential legal attributes.” While similar language has been differently construed in different wills yet the difference has been in the application not in the guiding principle. The effort has uniformly been to discover the actual principal intent of the testator and where that has been clear there is no case in which it has been departed from. It has been very generally observed that the testator, inops consilii, rarely observes or even appreciates the distinction between the two classes of cases. With the general idea in his mind that he can dispose of his property as he may please, he fails to see that he cannot make a gift and at the same time withhold it or its essential attributes. Hence the numerous cases where the effort is made to give the first taker, especially a widow, the full authority and enjoyment of the property and yet to dictate what shall be done with it in her life or particularly after her death. As the first donee is usually the principal object of the testator’s bounty the presumption in case of conflict is always in his favor. Hence there is a strong trend, notably in the later cases, to construe the first gift as a fee, and the subsequent words, which appear to be repugnant, as either merely precatory, as in Good v. Fichthorn, 144 Pa. 287 and Boyle v. Boyle, 152 Pa. 108, or as expressive of a particular and subordinate intent which must fail as an attempt to deprive the estate given of its legal attributes, as in Jauretche v. Proctor, 48 Pa. 466; Levy’s Estate, 152 Pa. 174; Evans v. Smith, 166 Pa. 625; Gilchrist v. Empfield, 194 Pa. 397 and Huber v. Hamilton, 211 Pa. 289.

A few cases, notably Fox’s Appeal, 99 Pa. 382 and Follweiler’s Appeal, 102 Pa. 581, are frequently cited as sustaining contrary views to those here expressed, but they do not. While there is room for difference of opinion as to the application there is no departure from the guiding principle of endeavoring to ascertain the testator’s primary or main intent. The very first sentence of Chief J ustice Shabswood’s opinion in Fox’s Appeal is that every will is to be construed from its four corners to arrive at the true intention of the testator.” In neither that case nor Follweiler’s Appeal was there any direct or express gift of a power to consume from which a fee simple could be inferred, but the inference was sought to be drawn from a reference to the disposition of “ what remains ” or “ what shall be left ” at the death of the wife, and it was held that the direct gift limited to a life estate was not enlarged by such reference.

In construing the infinite variety of phrases and expressions .which testators have used to express their intentions there is room for difference of opinion as to the application of rules and presumptions, but no case sanctions a departure from the principle that all rules and presumptions are subordinate to the intent of the testator where that is ascertained.

Some few cases in which the good faith of the life tenant has been questionable, such as LaBar’s Estate, 181 Pa. 1, Tyson’s Estate, 191 Pa. 218 and Trout v. Rominger, 198 Pa. 91, must be read in connection with that question.

Taking up the present will in view of the foregoing principles it does not appear to leave any doubt as to the testator’s actual and main intent. The words are “Third. All the balance, or whatever may remain then of my estate, real, personal and mixed, I give, devise and bequeath to my beloved wife Leonora whom I desire to be the real owner thereof, and for her only proper use, benefit and behoof during her natural life, or so long as she remains my widow with full permission to her to use and live therefrom as her necessities may require, and she to have the full ownership thereof, the same as I now have, and have had during my natural life.

“ Fourth. When my beloved wife dies, my will is whatever may then remain of my estate, real, personal or mixed, I desire that the same remaining portion, if any, be given to my beloved daughter Mary.”

The gift to the widow is of the estate, she to be “ the real owner thereof” and “with full permission to her to use and live therefrom as her necessities may require.” And she is to have “ the full ownership thereof the same as I now have, and have had during my natural life.” It is plain that he meant her to have whatever her necessities should require, even to the extent of the entire estate, as he had himself undoubtedly had during his lifetime. And this idea he expressed distinctly three separate ways. And she was the judge of what her necessities should require: Lininger’s Appeal, 110 Pa. 398. The gift is expressly of the estate, real, personal and mixed, blended together, and no distinction made. There was no difference in the testator’s own ownership and control over the real and the personal estate during his life, and there is nothing to indicate an intention to make a difference in hers after his death. There was no limit put on her use. If she needed the whole, she was to have the whole. But it is plain that he did not think she would need the whole, and expected that there would be something left, and this residue, be it much or little, he gave to his daughter. The terms of this latter gift are as explicit as those of the first. When the wife dies “ whatever may then remain of the estate, real, personal or mixed, I desire that the same remaining portion, if any, be given to my daughter.” No distinction is made again between the real and the personal estate, and an equal power to consume is implied in the expressed doubt “ if any ” as to there being any unconsumed residue of either.

The appellant does not have a fee simple, for she could not make a valid devise of what may be left at her death as that would go under the testator’s will to his daughter. But appellant has an unlimited power to consume and as said in the very analogous case of Kennedy v. P. & L. E. R. R. Co., 216 Pa. 575, the power to consume real estate necessarily includes the power to convey. Her deed therefore will convey a good title.

Judgment reversed and judgment directed to be entered for the plaintiff on the case stated.


author: Mr. Justice Stewart,

text:
    Pannebaker v. Tuscarora Valley Railroad Company, Appellant.

      Contract — Railroad—Agreement as to siding — Authority of president— Ratification of contract.

    Where an owner of land abutting on a railroad enters into an agreement with the president of the railroad company to erect a sawmill, for the consideration, among other things, of the company constructing a siding for the use of the mill, and the contract is completely carried out, and both parties enjoy the benefit of it for a period of nine years, it will be presumed that the railroad company ratified the act of the president in making the contract, although he may have had no legal power at the time to make it on behalf of the company.
    A corporation may not avail itself even of ultra vires as a defense, where a contract has been entered into and executed in good faith by the other party, and the corporation has received the benefit of the performance.

      Argued May 27, 1907.
    Appeal, No. 162, Jan. T., 1907, by defendant, from decree of C. P. Juniata Co., Sept. T., 1906, No. 1, on bill inequity in case of S. E. Pannebaker v. Tuscarora Valley Railroad Company.
    Before Mitchell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction, and for damages.
    Shull, P. J., found the facts to be as follows :
    1. The Tuscarora Valley Railroad Company is a corporation duly chartered to construct a line of railroad from Port Royal to Blair’s Mills, that it built, has been, and now is operating said road, and has its principal office in the county of Juniata, and that T. S. Moorehead, from the organization of said company until the time of his death in 1906, was the president.
    2. About the month of July, 1897, T. S. Morehead, president, proposed to plaintiff that in consideration of the plaintiff placing a sawmill and planing mill and other machinery for the manufacture of lumber, and ship the same over defendant company’s railroad and thus augment its traffic, said company would sell and convey a part of a lot of ground adjoining other lands of plaintiff upon which said plant was to be erected, provide other lands of the said company contiguous therewith for the storage and piling of lumber, and would construct a siding for his use and convenience in shipping lumber and would maintain the same as long as plaintiff continued to conduct such business.
    3. It was further agreed and stipulated between the said parties that in case the lands, occupied by the siding then laid or to be laid, were necessary for the company’s railroad purposes, it would construct and maintain a siding for plaintiff on other lands then designated by the parties, which would afford the same facilities for shipment.

      4. The plaintiff acceded to the proposition, and in furtherance of the project, defendant company on July 27,1897, made and executed a deed for a plot of ground adjoining plaintiff’s land, and bounded by other lands of defendant company, the consideration of which is the sum of $50.00.
    5. In pursuance of said contract and agreement defendant company, about 1897, constructed from other side tracks leading to its main line a siding leading to the plaintiff’s lumber yard, which said siding was dedicated by acts of user to plaintiff’s purposes exclusively. The plaintiff about the same time erected a stave mill, sawmill and planing mill upon his premises, engaged in and conducted a large lumber business, transporting said product over the defendant company’s railroad, paying to said company large revenues in freight for his said shipments, in pursuance of the parol contract made and entered into between plaintiff and T. S. Morehead, president, representing defendant company.
    6. T. S. Morehead, the president, was owner of almost the entire capital stock of the corporation, there being outstanding only sufficient to establish a board of directors. He controlled, directed and supervised the construction, maintenance and operations of the road, was not only the president, purchasing agent, general manager, but was the management. '
    7. That on May 7, 1906, defendant company removed the said siding, against the protest of the plaintiff, thereby hindering in the operations of his plant.
    The court entered a decree directing the defendant to restore the siding, and awarding plaintiff $1,025 damages for his loss sustained by the removal of the siding.

      Errors assigned were various findings, rulings on evidence and the decree of the court.

      F. M. M. Pennell, of Atkinson & Pennell, for appellants.
    The president had no power virtue officii to make the contract: Penna. R. R. Co.’s App., 80 Pa. 265; Sitler v. Fire Ins. Co., 18 Pa. Superior Ct. 139; Moore v. Patterson, 28 Pa. 505; Twelfth St. Market Co. v. Jackson, 102 Pa. 269; Susquehanna Coal Co. v. Wright, 9 W. & S. 9; Bedford R. R. Co. v. Bowser, 48 Pa. 29; Bank v. McKee, 2 Pa. 318.
    There was no ratification of the act of the president in making the alleged parol contract: Twelfth St. Market Co. v. Jackson, 102 Pa. 269; Moore’s Exrs. v. Patterson, 28 Pa. 505; Pittsburg, etc., R. R. Co. v. Gazzam, 32 Pa. 340; Zoebisch v. Rauch, 133 Pa. 532.

      J. Mac Barnett, of Barnett & Son, with him J. H. Neely, for appellee.
    The contract being such as the company had power to make, and having been made by the president for and in the name of the company, authority in the president will be presumed and this presumption in the absence of rebutting proof is absolute: 2 Cook on Corporations, 1772; Bank of Penna. v. Reed, 1 W. & S. 101; Oil Creek, etc., R. R. Co. v. Transportation Co., 83 Pa. 160; Wright v. Pipe Line Co., 101 Pa. 204; Boyd v. American Carbon Black Co., 182 Pa. 206; Pittsburg, etc., R. R. Co. v. R. R. Co., 196 Pa. 452; Bangor, etc., Ry. Co. v. Slate Co., 203 Pa. 6.
    June 25, 1907:
   Opinion by

Mr. Justice Stewart,

We do not feel called upon to review specifically each of the thirty-nine assignments of error with which this case is burdened. It is enough to say, with respect to those which challenge the facts found by the learned judge, that upon a careful consideration of the evidence we see no ground for disturbing any of the findings. All have support in evidence that was clearly admissible; those least supported are inconsequential, while those material are amply sustained. We take the facts to be as found.

The plaintiff being the owner of a lot of ground contiguous to the defendant’s railroad, agreed with the president of the railroad company that he would construct and operate upon the lot of ground a sawmill, on condition that the company would for a consideration, of $50.00 convey to him a small adjoining lot, allow him to use still another lot for storing lumber, and would furnish him with siding conveniences for his use in shipping lumber. The contract was a verbal one, made in July, 1897. Every feature of it was complied with by the respective parties. The plaintiff built and operated his mill; the lot was conveyed to him by the company; and a disused siding was reconstructed for the purposes of the plaintiff’s business. Eor nine years after the making of the contract, the parties enjoyed the benefit and advantage that each had expected to derive from the transaction; the plaintiff had the advantage of the conveniences, and the defendant the benefit of the increased tonnage. In May, 1906, the defendant, against the protest and remonstrance of the plaintiff, removed the siding without attempting to substitute other facilities for it, thereby requiring the plaintiff in the conduct of his business to haul by teams his lumber to and from the point of shipment.

The answer of the defendant to the bill filed denies that, the contract as above stated was made; but this fact having been found adversely to defendant’s contention, the company sought to justify its removal of the siding by disavowing the act of its president, and denying his authority to bind the company. It is not pretended that there ever was any formal ratification of the contract by the board of directors of the company. It may be conceded that it was without the usual and authorized duties and powers of the president to make it. But the learned judge who heard the case concluded that, even though ultra vires, actual confirmation was to be presumed from the acquiescence of the company, and its long continued acceptance of the fruits and advantages of the bargain made in its behalf. In this he was abundantly justified by the evidence. ¥e waive all consideration of the fact found by the learned judge, that the president was the virtual owner of the railroad company, having the entire property under his own personal control and management. Assuming that he stood toward it in no other relation than that of a salaried official, it is impossible to believe that those responsible with him in the direction and management of the affairs of the company were without the knowledge of the existence of the contract by and under which the short line of road in their control was receiving such benefit, especially so when the means provided'by the company at its own expense, for the convenient shipment of the plaintiff’s product, were so open and notorious. In Stirling v. Vaughan, 11 East, 619, Lord Ellenborough said: “ The law will presume, if nothing appear to the contrary, that every person accepts that which is for their benefit.” In Bank of U. S. v. Dandridge, 25 U. S. 64, Mr. Justice Story said: “ Grants and proceedings beneficial to a corporation are presumed to be accepted; and slight acts on their part, which can reasonably be accounted for only upon the supposition of such acceptance, are admitted as presumptions of fact.” Our own cases are as explicit. It is only necessary to refer to the most recent on the subject: Presbyterian Board of Relief, etc., v. Gilbee, 212 Pa. 310. It is there said: It is repugnant to every sense of justice and fair dealing that the principal shall avail himself of the benefit of the agent’s act, and at the same time repudiate, his authority. A corporation may not avail itself even of ultra vires as a defense where a contract has been entered into and executed in good faith by the other party and the corporation has received the benefit of the performance. ”

The conclusion of the learned trial judge on the question of ratification does not depend in the slightest degree upon the disputed findings of fact; nor does it rest upon any testimony which was admitted under objection. It is clear upon the undisputed facts of the case.

The effort to justify the removal of the switch on the ground that it was dangerous, followed no attempt on the part of defendant to furnish the plaintiff with another not open to such objection, as it had a right to do under its contract. The company could not take advantage of such circumstance to escape the burden of its contract, except as it discharged the alternative burden it originally assumed in such contingency for the protection of the other contracting party.

We see no merit in any of the assignments of error.

The appeal is dismissed at the cost of the appellant, and the decree is affirmed.


text:
    Commonwealth ex rel., Appellant, v. Heller.

      Municipalities — Cities of the third class — Water commissioners — ■ Statutes — Repeal of statutes — Constitutional law — Local and special legislation — Ads of March 21, 1865, P. L. 455 and May 23, 1889, P. L. 277.
    Section 2 of article XII of the Act of May 23, 1889, P. L. 277, entitled "An Act providing for the incorporation and government of cities of the third class,” is not unconstitutional as special or local legislation, because the city of Erie, which owned an existing waterworks, was excluded by the terms of the section.
    There is no constitutional requirement of uniformity in legislation. Uniformity is only a test of generality in the cases where local or special laws are prohibited.
    While a classification which permanently excludes even one member of the class from its future operation is unconstitutional, the fact that existing exceptions are not immediately abolished does not destroy the constitutionality of the act. The unconstitutionality consists not in the continuance of an existing exception, but in the creation of new ones.

      Section 2 of article XII of the Act of May 23, 1889, P. L. 277, providing for the establishment of a water department in cities of the third class, is not mandatory in character, and does not repeal the local Act of March 21, 1865, P. L. 455, creating a water department for the city of Reading.
    Argued May 23, 1906.
    Reargued June 3, 1907.
    Appeal, No. 7, May T., 1906, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1904, No. 373, for defendants in quo warranto in suit of Commonwealth ex rel. Hampton L. Carson, Attorney General, v. Frederic P. Heller et al., Board of Water Commissioners of the City of Reading.
    Before Mitchell, C. J., Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Quo warranto to determine title to office.
    Before Kunkel, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in entering judgment in favor of the defendants.

      Walter S. Young, with him Hampton L. Carson, attorney general, for appellant.
    The plain intention of the legislature, as expressed in article XII of the act of May 23, 1889, is this : Any city of the third class, subject to the provisions of the act, and owning its waterworks, shall organize a department in accordance with the provisions of the act. Any city of the third class, subject to the provisions of the act, may bring itself within the provisions of article XII by acquiring title to waterworks.
    The provisions of this act and the local act of 1865 are clearly inconsistent, and the legislative intent in enacting the municipal classification acts being to establish a uniform and mandatory system of government for cities of a given class, the presumption must be that the local acts are intended to be repealed. In support of this proposition we cite the following cases: Com. ex rel. v. Macferron, 152 Pa. 244; Quinn v. Cumberland County, 162 Pa. 55; Com. ex rel. v. Weir, 165 Pa. 284; Commonwealth v. Brown, 210 Pa. 29.
    In a statute the word “ may ” means “ must ” or “ shall,” in cases where the public interests and rights are concerned, and when the public or third persons have a claim, de jure, that the power should be exercised: Com. v. Councils of Pittsburg, 34 Pa. 496; Com. v. Gable, 7 S. & R. 423; Mason v. Fearson, 50 U. S. 248; Com. ex rel. v. Marshall et al., 3 W. N. C. 182.

      William J. Rourke, city solicitor, and Cyrus G. Derr, for appellees.
    The provision of section 2, article XII, of the Act relating to cities of the third class, approved May 23, 1889, P. L. 277, which allows any city then having title to any water, gas or electric light works by conveyance to the same in its corporate name, and any city which should thereafter erect or purchase such works, to create a department of water and lighting offends against the constitutional provision forbidding local legislation, in that it excludes cities having at the passage of the act title to any such works by the exercise of the power of eminent domain, or by a title conveyed, not to the municipality itself, but to a department thereof, or to some other trustee for the municipality: Saltsman v. Olds, 215 Pa. 336; Scranton School District’s App., 113 Pa. 176; Davis v. Clark, 15 W. N. C. 209; Lloyd v. Smith, 176 Pa. 213.
    The provision of the Act of May 23, 1889, P. L. 277, empowering any city of the third class then owning by title conveyed to it in its corporate name or thereafter acquiring -waterworks to create a water department is, if constitutional, permissive only.
    June 25, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

It will conduce to the readier understanding of this case to state just how it comes before the court and the questions it raises.

The defendants are the water commissioners of the city of Reading, elected and holding office under a local Act of March 21, 1865, P. L. 455, a supplement to the city charter of April 26, 1864, P. L. 583. Their title to office is challenged by quo warranto at the relation of the attorney general.

In 1874 the city of Reading by ordinance duly accepted the Act of May 23, 1874, P. L. 230, and became a city of the third class. It is now, therefore, governed by the Act of May 23, 1889, P. L. 277, relating to cities’ of the third class. Article XII, sec. 2, of that act provides for the establishment of a water department in such cities, and the claim of the commonwealth is that thereby the act of 1865 was repealed and the defendants have no office left.

Defendants by answer to the information set up their title under the act of 1865, and the commonwealth in reply averred the repeal of the act of 1865 by the act of 1889. To this replication the defendants demurred on two grounds, first, that the act of 1889 does not repeal the act of 1865, and secondly, that sec. 2 of the latter act by its language excluding one of the cities of the third class, namely, the city of Erie, is a local act and unconstitutional.

The learned judge passing on the first question pro forma only, held.that the act of 1889 was mandatory and repealed the act of 1865, but gave judgment in favor of the defendants' on the second ground, holding sect. 2 of article XII unconstitutional. •

A. further question was raised with reference to the Act of June 4, 1901, P. L. 364, relating to liens for taxes and municipal improvements, but so manifestly irrelevant that it need not be further noticed.

We have therefore three questions presented, in the order of their significance in the case, first: Is section 2, article XII of the act of 1889 constitutional; second, if so, is it mandatory; third, does it repeal the act of 1865 ?

The language of section 2, article XII, of the, act of 1889. is : “ Any city which now has the title to any water, gas or electric light works by a conveyance to the same in its corporate name, or which may hereafter erect- or purchase water, gas, or electric light works under the provisions of this act are (is) hereby empowered to create a department to be called the Water and Lighting Department,” etc. This act is “An act providing for the incorporation and government of cities of the third class,” and at the time of its passage the city of Erie, a city of the'third class, by virtue of its- previous acceptance of the provisions of the act of 1874, had waterworks the title to which by conveyance’ was in the name of-its commissioners of waterworks under, the provisions of the special Act of April 4, 1867, P. L. 768. The act of 1889, therefore, did not seem to cover the case of the city of Erie, and as legislation for a class that permanently excludes any one of the class from its operation has been held to be special, the learned court below held this section of the act of 1889 to be in conflict with article III, section 7 of the constitution.

But this principle must not be applied arbitrarily without due reference to the facts of the particular case. While a classification which permanently excludes even one member of the class from its future operation is unconstitutional the fact that existing exceptions are not immediately abolished does not destroy the constitutionality of the act. It must not be forgotten that there is no constitutional requirement of uniformity (except in regard to taxation upon the same class of subjects). The constitution requires only that legislation on certain subjects shall not be local or special, and uniformity is not in itself a substantial requirement, but one of the judicial tests of generality as opposed to localism or specialism: Com. ex rel. v. Middleton, 210 Pa. 582. The unconstitutionality consists not in the continuance of an existing exception, but in the creation of new ones. This was thoroughly reasoned out and after some uncertainty of views, not unnatural in the consideration of so radical a change in legislative powers, finally settled in Evans v. Phillipi, 117 Pa. 226, and City of Reading v. Savage, 124 Pa. 328. In the last case it was said, “ There is no possibility of any exercise of the powers or privileges conferred by the section which can work affirmatively a local or special result. Whatever is done by virtue of the section simply converts that which was or might be local or special, into that which is general.” That expresses accurately the situation here. Both Erie and Reading were cities of the third class under the act of 1874, but each of them had a special ■water system under a local act, and even if section 2 of article XII of the act of 1889 left such systems intact it was not for that reason unconstitutional, for a repeal of the local acts would at any time bring them into full conformity with the general system. The objection to section 2 of article XII of the act of 1889 cannot be sustained.

The other two questions are practically but one, for if the act of 1889 is mandatory to create a water department under section 2 of article XII then the local act of 1865 is necessarily repealed, as the two systems cannot consistently operate together. The question of repeal is one of legislative intent. In this case the presumptions on the subject are divided. The most general presumption is that a local or special act is not repealed by a general one on the same subject, unless there is a very clear intention that it should be. On the other hand, such intention is held to be clear when the later act is to establish a uniform and mandatory system on the same subject, and this presumption has been held to apply to the acts classifying cities: Com. ex rel. v. Brown, 210 Pa. 29. An examination of the details of the enactment leads to a conclusion that the balance inclines to the general rule against the repeal.

The language of section 2 is altogether permissive. It is any city,” whjch primarily refers to cities individually. It may include all, but does not necessarily do so. Then the city is empowered ” which is a grant of authority rather than a command to exercise it. Then the councils are “ authorized and empowered ” to divide the city into three districts, which “ shall ” be numbered, etc., and no member of councils “ shall ” be eligible as a member of the district boards, an accurate change from permissive to imperative language at the point where certain things are intended to be made mandatory. Language permissive in form may of course be mandatory in intent and effect; but is not usually presumed to be so. The learned judge below gave much weight to the language of section 12 of the same article that the “ city councils shall pass such ordinances, rules and regulations as may be necessary for carrying into effect the provisions of this article. ” But this does not seem to mean moré than that when a city has exercised its authority by establishing a water department, it shall provide by ordinances, rules and regulations for its proper organization and government.

But the most significant indication of the legislative intent, and one that is controlling, is that section 2 itself shows that i f is not intended to apply to all cities of the third class. The language is any city which now has the title to any water, gas or electric light works by conveyance to the same in its corporate name,” thus clearly showing that there are, or may be, cities of the class, which will not come under this section, although they have water or gas works. In the mandatory uniform features of the city government no room is left for doubt, “the legislative power of every city of the third class shall be vested in the councils, which shall consist of two branches,” art. IV; “ the powers granted shall be exercised by the mayor and councils in the manner herein provided for,” art. V, etc. But in regard to a water or light department the language is carefully framed so as not peremptorily to include all. The basis of the argument as to constitutionality was that at least one city of the class, Erie, has waterworks so held as to exclude it from the operation of the act, and there may be others in respect of gas and light as well as waterworks. It seems to be clear that the legislature recognized these facts and intentionally framed this section so as not to require a mandatory uniformity.

The authority of the councils is ample at any time to establish a water department under section 2, and when they do the water commissioners under the act of 1865, will be superseded and functus officio, but until that is done the act of 1865 is left in operation and the commissioners under it retain their authority.

Though as will be perceived, for entirely different reasons we think the result reached by the learned court below was right.

Judgment affirmed.


author: Per Curiam,

text:
    Farner v. Massachusetts Mutual Accident Association, Appellant.

      Insurance — Accident insurance — Bite of dog.

    A bite of a dog is an accident, and should be classed under the “ accident provisions,” and not under the “health provisions,” of an accident insurance policy.
    A person who is bitten in the thumb by a dog, and whose hand is bandaged at once, and the use of the hand is interfered with thereby from the moment of the bite, and continues to be more and more so, with increasing pain until death ensues two weeks later, is “immediately disabled,” within the meaning of those words in an accident insurance policy.

      Argued June 3, 1907.
    Appeal, No. 1, May T., 1907, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1905, No. 316, on verdict for plaintiff in case of Mary Farner v. Massachusetts Mutual Accident Association.
    Before Mitchell, C. J., Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of accident insurance.
    Before Kunkel, P. J.
    At the trial the jury returned a verdict for the plaintiff for $2,056.60. On a motion for judgment for defendant non obstante veredicto Kunkel, P. J., filed the following opinion:
    The question which arises under the reservation made at the trial of this case is whether the policy upon which the action is brought covers the death of the insured.
    The circumstances under which the insured’s death occurred are not in dispute and are as follows: On May 15,1904, while he was sitting in front of his hotel holding a little dog on his lap, someone came behind him and pinched the dog’s tail, whereupon the dog snapped and bit the insured on his thumb, from the effects of which, two weeks thereafter, he died.
    The policy under-which his widow, the beneficiary, seeks to recover, contains two kinds of insurance, one against accidents, the other against disease or sickness. The part which relates to accident provides insurance “ for loss through personal bodily injuries caused solely through accidents, unforeseen and unintentional, due wholly to violent means external to the body, and such as shall be evidenced (except in case of drowning or bone fracture) by some sign or mark on the exterior of his body, visible to the eye, and such as shall immediately and continuously disable the insured -from the date of the accident, and such as are not caused or contributed to by any deformity or disease; and in case of such loss will pay, under this policy, one of the following benefits, to wit: Benefit No. 1, $2,000 for loss of life caused solely by an accident herein insured against and occurring within thirty days from the date of such accident,” etc. The verdict of 'the jury has established the fact that the character -of the injury suffered by the insured was such as is described by the provisions of the policy just quoted. The part of the policy which relates to health provides, among other things, as follows: Benefit No. 13, $10.00 weekly indemnity for not exceeding twenty-six consecutive weeks for loss through any of the sicknesses or diseases under this benefit, as follows.” Then follows a list of diseases. Benefit No. 14 provides for “ "Weekly indemnity for loss through any well defined disease or sickness other than those specified in Benefit No. 13 (except as hereinafter excepted) for not exceeding four consecutive weeks.”
    The provision in the policy over which this controversy arises is article eight, which declares “ that all cases of sunstroke, freezing, carbuncles, boils, ulcers, felons, abscesses, contact with poison, or with poisonous or infectious substances, are covered only under the health provisions of this policy.”
    The defendant contends that the death of the insured, being due to inoculation with some poison-generating germ from the dog’s saliva, or from its tooth, or from its mouth, or from the insured’s thumb, presents a case of contact with poison, or with a poisonous or infectious substance, within the meaning' <sf article eight, and, therefore, no recovery can be had under the accident provisions of the policy.
    Even if it be conceded that the death of the insured was caused by some poisonous germ received into his body through the bite of the dog, yet it does not follow that the case falls within the provisions of article eight. The language of the article must be taken in its usual and ordinary sense, and must be given such interpretation as was probably in the contemplation of the parties when the policy was issued. “ A contract of insurance must have a reasonable interpretation such as was probably in the contemplation of the parties when it was made: ” Grandin v. Insurance Co., 107 Pa. 26; Humphreys v. Benefit Association, 139 Pa. 214. In order to defeat a recovery upon it, the meaning of the provision which purports, to effect this object ought to be clear. If the provision be ambiguous, that interpretation should be adopted which will conserve the purpose for which the policy was given: Teutonia Fire Insurance Co. v. Mund, 102 Pa. 89; Burkhard v. Insurance Co., 102 Pa. 262.
    Contact with poison, or with poisonous or infectious substances, in the ordinary sense, means contact with corporeal matter, with that which is substance, as distinguished from that which can neither be seen or handled. Poison, or poisonous or infectious substances also ordinarily mean substances that are in their nature poisonous or infectious, and that are generally recognized and known as such. An infinitesimal poisonous germ, or that which it generates, is not poison as the word is ordinarily understood. Nor is it, or its product, popularly known as a substance. If we were to adopt the scientific or medical meaning of the term, as we are in effect asked to do by the defendant, we would have to hold that everything containing a poisonous generating germ, or an infectious germ, is a poisonous or infectious substance. But in the ordinary use of the language we would not speak of either a liquid or a solid which contains a poisonous or infectious germ as essentially a poisonous or infectious substance. If we did, it would be difficult to mention'any substance which cannot be so characterized. There is nothing in the policy to satisfy us that when it was issued, either the insurer or insured was versed in the germ theory, and that either intended the words of article eight to be taken in any other than their common and usual sense. W e are not prepared to say that they meant that an accidental death, due to the bite of a dog, or of any other animal, should fall without the accident benefits of the policy. Suppose the insured had been accidentally shot and, as a result of the accident, suffered with blood poisoning from the bullet received into his body and died. It would hardly be said to be a case of contact with poison, or with a poisonous or infectious substance, in the ordinary acceptation of the term. We can see no real distinction between such a case and the one at bar. When we come to interpret insurance policies in the light of advanced medical science, then we may agree with the contention of the defendant. Until then, however, we must interpret them as the terms employed in them are commonly used and understood.
    At the trial the defendant offered evidence to show that the insured suffered with septicemia as the result of the dog’s bite, septicemia being one of the diseases mentioned in the list under the health provisions of the policy. ’ The plaintiff offered evidence to contradict this and to show that although the insured suffered with what is ordinarily known as blood poison, he did not suffer with the disease recognized by the medical profession as septicemia, and the jury have found with the plaintiff on this question. However this may be the health provisions of the policy do not provide for any payment in case of death by disease, but only for indemnity during the existence of the disease. The present claim is a claim for the death of the insured, and, if it is covered by the policy, falls within the provisions relating to accidents. The case cannot be excluded from the accident provisions of the policy, if the injury is of the character described therein and is the proximate cause of the death, merely because the injury is accompanied by a disease or sickness mentioned in the health provisions of the policy. If excluded at all, it would be excluded because it is a case of contact with poison, of poisonous or infectious substances within the meaning of article eight. But, as we have seen, it is not such a case. The motion for judgment non obstante veredicto is, therefore, overruled, and judgment is directed to be entered on the verdict upon payment of the jury fee.

      Error assigned amongst others was in overruling defendant’s motion for judgment non obstante veredicto.

      John R. Geyer, with him John E. Fox, for appellant,
    cited: Desilver v. State Mut. Ins. Co., 38 Pa. 130; Ritter v. Preferred Masonic Mut. Accident Assn., 185 Pa. 90; Accident Assn. v. Beidelman, 1 Monaghan, 481; Meehan v. Traders’ & Travelers’ Accident Co., 68 N. Y. Supp. 821; Pollock v. Accident Assn., 102 Pa. 230; McGlother v. Accident Co., 89 Fed. Repr. 685.

      C. H. Backenstoe and Wm. M. Hain, for appellee,
    cited: Ritter v. Preferred Masonic Mut. Accident Assn., 185 Pa. 90; Carpenter v. Ins. Co., 135 N. Y. 298 (31 N. E. Repr. 1015); Young v. Ins. Co., 13 Atl. Repr. 896; Wall v. Continental Casualty Co., 86 S. W. Repr. 491; Cary v. Preferred Accident Ins. Co., 127 Wis. 67 (106 N. W. Repr. 1055).
    June 25, 1907:
   Per Curiam,

The claim of the appellant that the death of the insured should be classed under the “ health provisions ” and not under the “ accident provisions ” of the policy can hardly be made seriously. The policy was prima facie an accident policy, and the insured died from the bite of a dog, certainly an accident, not a disease. The proximate cause of death was the bite, and the way in which it operated to produce death, whether by hemorrhage or lockjaw or blood poisoning was a medical detail which did not affect the material fact of death resulting from the accident.

The other argument, that the insured was not immediately disabled,” is not much better. He was bitten in the thumb, his hand was bandaged at once, and though the gravity of the injury was not at first appreciated, yet the use of his hand was interfered with from the moment and continued to be more and more so, with increasing pain until his death, two weeks later. There was no break in the continuity of the consequences of the injury, and no intervening cause in the resulting disability. Immediately, under such circumstances, does not .mean instantly : Ritter v. Accident Association, 185 Pa. 90.

Judgment affirmed.