author: Mr. Justice Elkin,

text:
    Dalton v. Towanda Borough, Appellant.

      Municipalities — Boroughs—Sewers—Natural water course — Waters—Explosion of gas — Notice—Negligence.
    A municipality may connect its sewers and drainage with any natural channel for the flow of water without incurring liability to keep that channel open to its mouth, and the right or liability is not changed though the state, or the owners of the lots through which it passes, have made an artificial and covered substitute in place of a natural channel.
    The owners of property in a borough for their own convenience and at their own expense, built a stone culvert along and over a creek which was a natural waterway flowing through the borough. Subsequently the owners of a furniture factory laid an iron pipe from the factory to the culvert, and blew what was called sand dust through the pipe into the culvert. This dust was explosive in character, but this fact was not known to the borough authorities, nor was their permission asked or given to lay the pipe. Some years afterwards the borough council passed an ordinance providing for the construction of a public sewer along or near’ the creek. In pursuance of the ordinance a sewer pipe eight inches in diameter was laid for a short distance in the stone culvert. Some years after the pipe was laid, an employee of the borough went into the stone culvert with an open torch to look for leaks in the sewer, and while engaged in this work he was injured by an explosion of the sand dust. Held, that there was nothing to show negligence on the part of the borough, and that it was not liable for the injuries sustained by its employee.
    Argued March 12, 1906.
    Appeal, No. 284, Jan. T., 1905, by defendant, from judgment of O. P. Bradford Co., Sept. T., 1898, No. 468, on verdict for plaintiff in case of James Dalton v. Towanda Borough.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Cameron, P. J., specially presiding.
    The circumstances of the accident are set forth in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      Error assigned was in entering judgment for the plaintiff on the verdict.

      Rodney A. Merour, with him W. E. Lane and William Maxwell, for appellant.
    The borough had the right to lay the sewer pipe in tlie channe
    May 24, 1906 :

      I. McPherson and I). O. Pe Witt, for appellee.
    Cash Creek was a borough sewer and the defendant was bound to look after it as such. The borough was certainly exercising dominion over it, and Morris, its street commissioner, was authorized to send the plaintiff through the culvert to do the work ordered: Blizzard v. Danville Borough, 175 Pa. 479; Owens v. Lancaster, 182 Pa. 257.
   Opinion by

Mr. Justice Elkin,

In order to sustain a recovery in this case the burden was on the plaintiff to affirmatively establish two things: First, that the defendant borough exercised control and dominion over Cash Creek culvert, and second, that it knew or ought to have known the dangerous and inflammable character of the sand dust accumulated therein and should have given notice thereof. No testimony was introduced to show that Cash Creek culvert belonged to the borough, or that any portion of it was built or maintained for municipal purposes. Cash Creek is a natural waterway flowing through the borough of Towanda, and emptying into the Susquehanna river. Many years ago, the exact date not appearing in the evidence, private property owners along said creek, at their own expense built a stone culvert along the line of the waterway and confined the flow of the water therein. This was done as a convenience to the property owners, and in no way changed its character as a natural waterway. The rights and privileges of the public and of the borough were in no way changed, modified or affected by the construction of the stone culvert. It was a natural waterway before the construction of the culvert, and it remained the same thereafter. In 1882 a company organized for the purpose of manufacturing furniture in order to get rid of dust accumulations, connected its factory by means of an iron pipe with the culvert. This pipe laid on private property was constructed and maintained by the furniture company. The borough had nothing to do with it. What is called sand dust was blown through this pipe into the culvert. The borough not having any supervision' or control of the culvert, was not consulted about the use made of it, did not give permission to so use it, and so far as the testimony discloses, never has been in a position to either grant or deny the furniture company the right to blow sand dust into it. It is conceded by all concerned that this was the status of the parties for a long period of years. It is contended, however, that the original situation was changed by reason of the borough making use of a portion of the culvert in which to lay a sewer pipe in 1897. The whole case in this respect depends upon the ordinance of January 12, 1897. It provides, inter alia, as follows : “ that the borough accept the.proposition of the petitioners and construct a public sewer along or near Cash Creek in said borough from the Susquehanna river to Third street, according to the plans and specifications of George Y. Meyer, borough engineer, attached to said petition, and that the cost of the same when completed be justly and equitably assessed upon said petitioners as prayed for in said petition.” This ordinance was followed by the borough constructing a sewer from the Susquehanna river to Third street as prayed for. In the construction of this sewer an eight inch pipe was laid for a short distance in the stone culvert entering same in an alley on the Decker property, a considerable distance west of the place where the accident occurred. There is nothing in the evidence to show what rights, if any, the borough obtained in the use of the culvert. The accident did not occur in that portion of the culvert in which the sewer pipe was located. It occurred near the point where the dust pipe leading from the furniture factory entered the culvert, which was upwards of 100 feet east of the point where the sewer pipe entered. It is not contended that the borough either constructed or maintained the stone culvert at any point, or that it made use of it in any way except in laying its pipe in that portion of thé culvert hereinbefore referred to west of the place of accident and entirely removed from it, Did the ordinance of 1897 appropriate to public use the culvert in question? We think not. The ordinance itself only provides for the construction of “ a public sewer along or near Cash Creek.” Certainly it cannot be said that an ordinance which provides for the construction of a sewer along or near Cash Creek can be construed to mean that it was intended to appropriate the stone culvert to a public use. The only use made of the culvert was the location in part of it of an eight-inch sewer pipe, and this at a point many feet distant from the place of accident. This court has held that a municipality may connect its sewers and drainage with any natural channel for the flow of water, without incurring liability to keep that channel open to its mouth, and the right or liability is not changed, though the state or the owners of the lot through which it passes have made an artificial and covered substitute in place of the natural channel: Munn v. Pittsburg, 40 Pa. 864.

The rule of that case applies with convincing force to the facts of the case at bar. Before the stone culvert was built the borough of Towanda had a right to drain into the stream, and it necessarily follows that it had the right to lay its sewer pipe for drainage purposes in the natural channel if it chose so to do. The fact that the private lot owners had made an artificial stone culvert to confine the flow of the water in no way interfered with the right of the borough to make use of the natural channel for drainage purposes. Nor does the fact that the borough used the stone culvert for the purpose of laying the sewer pipe for a short distance change the situation. We must conclude, therefore, that there was no evidence offered in the case to show that the defendant borough at any time dedicated the stone culvert to public use, or maintained it or exercised any supervision or control over it. It therefore cannot be made liable in damages for alleged negligence in permitting the sand dust to be blown into it.

The other point is equally fatal to the appellee’s case. If the testimony had shown that the borough of Towanda had exercised supervision and control over the culvert, it still would not be liable in damages under the facts of this case. This is not a case for the application of the maxim res ipsa loquitur. This maxim is limited to the cases of an absolute duty, or an obligation practically amounting to that of an insurer: Oil Company v. Penna. Torpedo Company, 190 Pa. 850 ; Stearns v. Ontario Spinning Company, 184 Pa. 519. In order to entitle the plaintiff to recover it was necessary to show some specific act of negligence on the part of defendant, or the existence of conditions so obviously dangerous as to amount to evidence from which an inference of negligence could arise: Diver v. Singer Manufacturing Company, 205 Pa. 170; Spees v. Boggs, 198 Pa. 112; see also to the same effect P. & R. R. R. Co. v. Hughes, 119 Pa. 301; Pawling v. Hoskins, 132 Pa. 617; Mixter v. Imperial Coal Co., 152 Pa. 395. We have always held in such cases that the happening of the accident is not in itself enough to establish negligence. The primary duty resting upon the plaintiff in this, as in every other such case, is to affirmatively show the negligence complained of. How did the plaintiff meet this burden ? He offered evidence to show that he went into the stone culvert with an open torch to look for leaks in the sewer and while engaged in this work an explosion occurred and an injury resulted. It is contended by the learned counsel for appellee that the sand dust was explosive and dangerous, and that it was the duty of the borough to give notice of its dangerous character to the plaintiff before he went into the culvert. The answer to this position is that there is no evidence in the case to show that the borough or any of its officials knew or ought to have known that sand dust was explosive or inflammable or dangerous. Indeed, to the ordinary mind it is difficult to understand how dust composed of small particles of wood and sand and nothing else, is explosive or dangerous. This branch of the case comes within the suggestion of our Brother Brown in Kilbride v. Carbon Dioxide, etc., Company, 201 Pa. 552, wherein he said: “ After almost every one (accident) theories are advanced as to how it could have been avoided; but a defendant’s liability for negligence is not to be so determined. What would have been wise, simply in view of what is learned after an occurrence like this, is no criterion of care. Failure to do some particular thing which might have prevented an accident, and which is brought to the attention of the party charged with carelessness for the first time only after the accident has happened, is not the test of negligence.”

In the case at bar, the borough did not know of the dangerous character of the sand dust, and there was nothing in the surroundings and the situation so far as shown by the testimony to give notice of its dangerous or inflammable character, or to convict it of negligence in failing to notify plaintiff of conditions unknown to its own officials.

J udgment reversed, and it is ordered that judgment be entered for defendant in the court below non obstante veredicto.


source: Caselaw Access Project

author: Mr. Chief Justice Mitchell,

license: Public Domain

text:
    O’Brien v. Philadelphia, Appellant.

      Negligence — Parent and child — Injury to minor — Rights of mother — Act of June 26, 1895, P. L. 316.
    Where a mother, who has been deserted by her husband, supports entirely through her own exertions, a minor child, she may maintain an action in her own name to recover for loss of services of the child resulting from personal injuries to the child caused by the negligence of another person. Kelly v. Pittsburg, etc., Traction Co., 204 Pa. 623, distinguished.
    Argued March 19, 1906.
    Appeal, No. 372, Jan. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., June Term, 1904, No. 5,239, on verdict for plaintiff in case of Mattie O’Brien by her mother and next friend, Louisa O’Brien, and Louisa O’Brien v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Audenried, J.
    At the trial it appeared that the plaintiff, Mattie O’Brien, was injured on the evening of June 18, 1904, by falling into a hole in the street on the north side of Vine street east of Nineteenth street in the city of Philadelphia. The evidence showed that her father, William O’Brien, had deserted her mother, Louisa O’Brien, about ten years before the accident. During these ten years Mrs. O’Brien, who was a dressmaker, supported Mattie and another daughter by her earnings.
    Defendant presented the following point:
    1. A mother has no right of action for injury to a minor child caused by the negligence of another, and not resulting in death. Answer: The third point is refused as inapplicable to the facts of the case as they have been developed by the uncontradicted evidence which has been produced. [1]
    May 24, 1906:
    Yerdict for Mattie O’Brien for $3,500, and for Louisa O’Brien for $500.

      Error assigned was (1) refusal of point as above; (2) in refusing binding instructions for defendant.

      W. O. Wilson, assistant city solicitor, with him Charles E. Bartlett and John L. Kinsey, city solicitor, for appellant.
    A mother has no right of action for an injury to a minor child caused by the negligence of another and not resulting in death: Kelly v. Traction Co., 204 Pa. 623 ; Passenger Railway Co. v. Stutler, 54 Pa. 375; Pennsylvania R. R. Co. v. Bantom, 54 Pa. 495.

      Walter Thomas Eahy, with him Thomas A. Eahy, for appellees.
   Opinion by

Mr. Chief Justice Mitchell,

The right of action of a father for injury to a child was based on his duty of support and his consequent right to the services of the child. The common law which paid no heed to merely sentimental considerations or matters of feeling put the action on the basis of master and servant. Even the most serious of all, the seduction of a daughter, was redressed as an injury to the father as master, per quod servitium amisit.

The mother being under no obligation to support had no corresponding right to service.

This was the state of the law when the Act of June 26, 1895, P. L. 316, was passed. By its provisions “ a married woman, who is the mother of a minor child and who contributes by the fruits of her own labor or otherwise towards the support, maintenance and education of her said minor child, shall have the same and equal power, control and authority over her said minor child and shall have the same equal right to its custody and services as is now by law possessed by her husband who is the father of such minor child.” It is true as argued by appellant that- the primary purpose of this statute was to enlarge the rights of the mother in cases of dispute between the parents of a minor child. This is apparent from the second section which subjects all such dispute to the discretionary authority of the courts. But unless we totally disregard the clear meaning in the language used we must give the act a wider application. The mother who without compulsion voluntarily does what the father is under legal obligation to do, i. e., supports the child “ shall have the same equal right to its custody and services, as is now by law possessed by” the father. In the present case if the father were now supporting the child, his right of action could not be questioned. As he is not doing so but the mother is, her right to the services is by the statute the same as his would be, and her right to sue for their loss must necessarily be the same. What would be the result if both parents had been supporting the child and were now disputing the right to sue for loss of services we need not now consider.

Appellant relies on Kelly v. Traction Co., 204 Pa. 623, as giving a different construction to the act of 1895, but, examined on its facts, it is an entirely different case. There the father was alive when the injury to the child occurred, and he brought an action in his own right as father and in the son’s right as next friend. Before the trial the father died and the mother was substituted as next friend but by some oversight the jury were allowed to give a verdict to the mother in her own right. This was reversed on the ground that the right of action at the time of the injury having been in the father it was not split by the statute upon his death, and there was no evidence in the case to show a right of action in the mother under the statute.

Judgment affirmed.


text:
    Dalmas, Appellant, v. Kemble.

      .Practice, C. P. — Judgment non obstante veredicto — Conflict of evidence— Act of April 22, 1905, P. L. 286.
    Under the Act of April 22, 1905, P. L. 286, which gives the court authority to enter judgment non obstante veredicto where, a request for binding instructions has been declined at the trial, the court cannot enter judgment against the verdict, where there was a conflict of evidence on a material fact, or any reason why there could not have been a binding direction.
    Argued March 22, 1906.
    May 24, 1906:
    Appeal, No. 379, Jan. T., 1905, by-plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1901, No. 1,339, for defendant non obstante veredicto in case of Louis Dalrnas v. Clay Kemble.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Reversed.
    Assumpsit for commissions. Before McMichael, J.
    At the trial the jury returned a verdict for plaintiff for $5,000. On a motion for judgment non obstante veredicto under the Act of April 22, 1905, P. L. 286, the court entered judgment for the defendant non obstante veredicto.

      Error assigned was the judgment of the court.

      V. Gilpin Robinson, with him John Greth Marsh, for appellant.

      Bernard Gilpin, for appellee.
   Opinion by

Mr. Chief Justice Mitchell,

The defendant being desirous of procuring a loan applied to several brokers, among whom were plaintiff and one MacDonald, to get it for him. Both brokers negotiated with the United Security Company which finally made the loan, and the issue in the present case was who was the first and efficient procurer. The security company acted on a formal application filed by MacDonald, but plaintiff testified that the MacDonald negotiations were merely part of plaintiff’s and there was other evidence to this effect, among which was the very significant fact that the trust company which paid a commission (with the borrower’s consent as the jury have found), desiring to keep out of the contest, divided it, giving $700 to plaintiff and $300 to MacDonald. On the other hand, MacDonald testified that his negotiations were not only the successful ones, but were first in time and were independent. There was therefore a distinct conflict of oral testimony on the pivotal point in the case, and it was properly submitted to the jury in the following terms : “ You will consider all those facts and make up your mind as to who brought these two parties together, as to who first started the negotiations; whether Mr. MacDonald started the negotiations before Mr. Dalmas took up the matter or not, as that is the important point.” The jury found for the plaintiff.

Defendant moved for a new trial but during or after the argument of the rule, with leave and apparently at the suggestion of the court, moved for judgment non obstante veredicto under the Act of April 22, 1905, P. L. 286, which was subsequently entered by the court.

The act being so recent it is important that it should be examined closely, and its proper construction settled. Its terms are: “ Whenever upon the trial of any issue, a point requesting binding instructions has been reserved or declined, the party presenting the point may .... move the court to have all the evidence taken upon the trial duly certified and filed, so as to become part of the record and for judgment non obstante veredicto upon the whole record; whereupon it shall be the duty of the court .... to enter such judgment as should have been entered upon that evidence.”

This statute makes no radical innovation on the settled line of distinction between the powers of the court and the jury. It shows no intention to infringe, even if it could constitutionally do so, the province of the jury to pass upon the credibility of witnesses and the weight of oral testimony. The court has long had authority to direct a verdict for defendant when it was of opinion that the plaintiff, even if all his evidence be believed, has failed to make out his case. But this had to be done offhand at the trial and a mistake of the judge either way resulted in delay and expense. If he directed for defendant but on more deliberate examination or consideration came to the view that there was some evidence for the jury to pass upon, a new trial was the only remedy, while on the other hand if he refused a binding direction but later found that it should have been given, the same result followed, for after a question has been submitted to a jury and the fact found by them the power of the court to enter a contrary judgment on the ground that the evidence was insufficient is gone : North American Oil Co. v. Forsyth, 48 Pa. 291; Butts v. Armor, 164 Pa. 73 (81).

No doubt when time was not urgent and trials were conducted leisurely, with full argument on every point as it arose, the system worked fairly well. But with the growing complexity of issues, the constantly increasing pressure upon the trial lists, the taking of testimony in shorthand, and the consequent hurry of trials, the inconveniences became burdensome. In practical reforms for facilitating business without impairing settled legal principles Pennsylvania has always been in the front. The authority to reserve questions of law for the consideration of the court in bane was first conferred by the Act of March 1, 1825, P. L. 41, upon the judges of the district court of Philadelphia; continued in the same court by the Act of March 28, 1835, P. L. 88, and extended to the courts of the commonwealth generally by the Act of April 22, 1863, P. L. 554, together with the power also first conferred on the district court of Philadelphia by the Act of March 11, 1836, P. L. 76, to enter a compulsory nonsuit if the plaintiff’s évidence is not sufficient to maintain his action.

The act of 1905 is another step in the same direction. It broadens the power of the judge in this respect, that whereas heretofore the verdict was required to be for the plaintiff and the reservation to be of leave to enter judgment for the defendant non obstante, now what is reserved is a request for binding direction to the jury and may be for either plaintiff or defendant. But though thus enlarged so as to include both parties, the power of the judge is the same as it was before. He is “to enter such judgment as should have been entered upon that evidence,” or in other words to treat the motion for judgment as if it was a motion for binding directions at the trial, and to enter judgment as if such direction had been given and a verdict rendered in accordance. What the judge may do is still the same in substance, but the time when he may do it is enlarged so as to allow deliberate review and consideration of the facts and the law upon the whole evidence. If upon such consideration it shall appear that a binding direction for either party would have been proper at the close of the trial the court may enter judgment later with the same effect. But, on the other hand, if it should appear that there was conflict of evidence on a material fact, or any reason why there could not have been a binding direction then there can be no judgment against the verdict now. As already said there is no intent in the act to disturb the settled line of distinction between the provinces of the court and the jury. The act is capable of usefulness in allowing time for mature consideration, but it should not be carried beyond its legitimate intent.

In the present case the learned court below gave the act too broad an application. As already said the issue was whether the plaintiff or MacDonald was the effective agent in procuring the loan for defendant. There was conflicting oral testimony on this point, and it could not therefore be taken from the jury either at the trial or later. “ However indisputable may be the proof, when it depends on oral testimony it is nevertheless the province of the jury to decide : ” Reel v. Elder, 62 Pa. 308.

The defendant’s motion for a new trial appears to be undisposed of, having naturally been considered as superseded by the entry of judgment for him against the verdict. It will be proper therefore for the court below to reinstate and dispose of that rule.

Judgment reversed and procedendo awarded.


author: Mr. Justice Potter,

text:
    Smith, Appellant, v. Equitable Trust Company
    (No. 1).

      Factors — Commission merchants — Counsel fees.

    Where a commission merchant starts litigation to maintain his rights as a pledgee of goods consigned to him, and this litigation is not against the consignor, but against other persons claiming goods as their own, and the litigation results successfully in favor of the commission merchant, the latter is not entitled to take from the balance in his hands after his debt has been paid counsel fees and expenses incurred by him in the litigation.
    There can be no recovery for counsel fees from the adverse party to a cause in the absence of express statutory allowance of the same.

      Argued March 26, 1906.
    Appeal, No. 51, Jan. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1899, No. 792, dismissing exceptions to supplemental report of referee in case of C. Shillard Smith and Clarence L. Mellhenney, trading with Philip Jagode, now deceased, as Philip Jagode & Company, v. The Equitable Trust Company, Assignee and Receiver of the Keen-Sutterle Co., the Tradesmen’s National Bank of the City of New York, Joseph B. Moors and Arthur W. Moors, trading as J. B. Moors & Company, and Robert H. Foerderer.
    Before Mitchell, C. J., Fell, Pottek, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of H. Gordon McCouch Esq., referee.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to referee’s report.
    N. Dubois Miller, with him Biddle Ward, for Jagode & Company, appellants.
    When a factor makes advances on property pledged to him to repay the advances, he is entitled to charge against the fund realized by the sale of the collateral all reasonable expenses to which he has been put in realizing upon or defending his title to such collateral, when they are due to the inherent character of the collateral, or to facts and circumstances created or brought about by the pledgor himself: Knox v. Moatz, 15 Pa. 74; Blake v. Paul, 29 Legal Int. 366; Ballingall v. Hunsberger, 16 Pa. Superior Ct. 117; Reynolds v. Cridge, 131 Pa. 189; Gregory v. Pike, 67 Fed. Repr. 837; Gregory v. Van Ee, 164 U. S. 703 (17 Sup. Ct. Repr. 994); Hurst v. Coley, 22 Fed. Repr. 183; Furness v. Union Nat. Bank, 147 Ill. 570 (35 N. E. Repr. 624); Duplex Printing Press Co. v. Clipper Pub. Co., 213 Pa. 207.

      Joseph De E. Junhin, for J. B. Moors & Company, appellees.

      V. Gilpin Robinson, for Tradesmen’s National Bank, appellee,
    cited: Hanna v. Holton, 78 Pa. 334; Mairs v. Taylor, 40 Pa. 446; Groff’s App., 3 Penny. 245; Hain v. Martin, 5 Watts, 179 ; DeCoursey v. Johnston, 134 Pa. 328 ; Willard v. White, 56 Hun, 581 (10 N. Y. Supp. 170) ; Work v. Tibbits, 87 Hun, 352 (34 N. Y. Supp. 308).

      May 24, 1906:
   Opinion by

Mr. Justice Potter,

The single question presented for decision by this appeal is ■whether under all the circumstances of the case Jagode & Company are entitled to charge against the fund in their hands the counsel fees and expenses incurred by them in maintaining their rights as pledgees of wool consigned to them by the KeenSutterle Company as against the attacks of other claimants. The referee held that they were so entitled, while the learned judge of the court of common pleas held that they were not. The general doctrine is not disputed that as between the consignor and the factor, where the former is put to expense in defending the title to the collateral, for the benefit of the consignor, he is entitled to be reimbursed out of the proceeds of the collateral; this principle applies when the services rendered, and the expenditures incurred are for the protection or enhancement of a common fund, or for the general benefit of all the parties to the controversy. Where, however, the services are rendered or expenses incurred for the benefit of the individual party conducting the litigation, it is not proper that an allowance to cover them should be made out of the general estate. In the present case the Keen-Sutterle Company, which was the consignor, had failed and made a voluntary assignment for the benefit of its creditors, and the assignee was also appointed as receiver. The litigation which thereafter arose was between the various creditors, as to which was entitled to the collateral. In the part which Jagode & Company took in this litigation they were, we think, protecting themselves only. As the court below concisely puts it, “ Jagode & Company were adversaries of the bank and of J. B. Moors & Company and pushed their contest to its uttermost end, a judgment for their money and expenses, and this judgment was paid to Jagode & Company out of moneys which otherwise would have belonged to the defeated parties. That there are sound reasons in legal policy for permitting Jagode & Company to win, is unquestionable, but this victory gained under special and exceptional circumstances, cannot overturn the true relation of things. Jagode & Company began as adversaries to the others, and so continued to the end. Instead of raising a fund for the bank or for the Moors, they rather procured judgment out of the latter’s goods.” We are unable to see that the consignor had any interest whatever in the result of the litigation. It had divested itself of all interest in the goods, and their disposition was left to the creditors to determine among themselves. We cannot find that Jagode & Company expressed at any time a willingness to share the fund arising from the sale of the wool, with any of the other claimants. On the contrary, they took out of it every dollar of the amount of their advances, together with interest and the usual factors’ commissions and charges for caring for, and making sale of the wool. If they had allowed the proceeds to be treated as a common fund, for the benefit of all the claimants, and to be shared proportionately among them, then there would have been equity in the suggestion that the expense of the litigation should be shared bjr all those who benefited by it. But no one was benefited by this litigation except Jagode & Company. In the fight which they made they contended for their own rights, and for them alone, and this too not as against the consignor, Keen-Sutterle Company, but against the claims of the bank, and of Moors & Company.

The right of a secured creditor to charge the fund with costs and expenses, does not, we think, go to the extent of including the expense of establishing the fact of his right to a preference as against other creditors.

This point is ruled in Work v. Tibbits, 87 Hun, 352, as cited by the referee in his report in this case. The contention is there stated, as follows: “ But the plaintiffs claim that in this case they can take out of the proceeds arising from the sale of the stock .... not only the amount loaned by them and the taxable costs, .... but all counsel fees incurred by them in establishing the priority of their equity. They have no precedent directly in .point for it, but claim to be within the rule which permits a pledgee to charge to the pledgor, and deduct from the fund realized by the sale of the thing pledged all necessary expenses incurred in clearing and defending the pledg- or’s title. A distinction between such a case and this at once forces itself upon the 'attention, and that is that these plaintiffs have been allowed to deduct over $4,000 for expenses incurred not in defending the pledgor’s title, for he had none, but in defending the validity of the transfer to themselves. The plaintiff’s pledgor did not have any title, and therefore they did not receive any from him. Nevertheless, they defeated Tibbetts because he so acted as to put it in the power of his brokers to induce them to make a loan on the faith of the pledgor’s ownership of the stock. Such a defeat ordinarily carries against the defeated party, and in favor of the successful one, taxable costs, with perhaps an allowance. There seems to be no good reason why these plaintiffs should be more favored then the average suitor, nor why this defendant should be more severely punished for his neglect than the many who are called upon to respond to others in some manner for their carelessness.”

So in the present case we can see no reason why Jagode & Company should be favored beyond any litigant who is sued, and forced to defend against what may turn out to be an unfounded claim.

All that they did was to defend an attack upon their title. They were successful, and the result of the litigation established their right to be repaid the advances which they had made. But this did not give them the right to recover counsel fees, and the expenses of the litigation. “ There is no law in Pennsylvania to warrant the payment as * costs in the cause ’ of the fees of counsel for professional services, or of the value of the time bestowed, or the amount of expenses incurred by a party in its preparation and trial; without an act of assembly empowering it, the courts cannot create a fee-bill, and it would be a usurpation of legislative functions to allow as between party and party charges to which no statute has ever given the character of costs. Since Wilt v. Vickers, 8 Watts, 227, and Rogers v. Fales, 5 Pa. 154, were overruled, compensation has never been recoverable for trouble and expenses in conducting a suit and establishing a right: ” Winton’s Appeal, 87 Pa. 77 (84).

Over and over again we have decided there can be no recovery for counsel fees from the adverse party to a cause, in the absence of express statutory allowance of the same: Com. v. Meyer, 170 Pa. 880.

The assignments of error are all overruled, and the decree of the court below is affirmed, and this appeal is dismissed at the cost of appellant.


text:
    Smith v. Equitable Trust Company, Appellant
    (No. 2).

      Bailment — Lien—Pledge of goods.

    Where an owner of goods agrees in consideration of advances, to give to a bank a lien on the goods which at the time are in the hands of a factor or agent of the owner, such a lien is valid and enforceable as against the general creditors of the owner, or his assignee for the benefit of creditors.
    A voluntary assignee for creditors is not a bona fide purchaser for value; he is the mere representative of the debtor, enjoying his rights only, and is bound where he would be bound; nor are the creditors for whom he holds the property in trust, purchasers for value.
    Argued March 26, 1906.
    May 24, 1906 :
    Appeal, No. 107, Jan. T., 1906, by the Equitable Trust Company, Assignee and Receiver of the Keen-Sutterle Company, from order of C. P. No. 2, Phila. Co., Sept. T., 1899, No. 792, dismissing exceptions to report of referee in case of C. Shillard Smith et al., trading as Phillip Jagode & Company v. The Equitable Trust Company et al.
    Before Mitchell, C. J., Fell, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of H. Gordon McCouch, Esq., referee.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to report of referee.

      N. Dubois Miller and George L. Crawford, for appellant.
    F. Gilpin Robinson, for appellee.
   Opinion by

Mr. Justice Potter,

The Equitable Trust Company as assignee and receiver of Keen-Sutterle Company claimed that the balance of the fund in the hands of Jagode & Company should be awarded to it. The referee disallowed the claim, and exceptions were dismissed by the court below. The trust company has taken this appeal, claiming that the Tradesmen’s National Bank had nothing more than a secret lien in the way of a pledge or mortgage, and that its title could not prevail against the receiver.

Counsel for appellant seems to concede that Moors & Company are entitled to be paid out of the fund, and the argument is directed only against the claim of the Tradesmen’s National Bank. But as the claim of Moors & Company is sufficient to absorb the entire fund, if the claim of the bank be excluded, it is not apparent how the trust company as receiver can participate in any event.

The findings of fact by the referee and his conclusions of law, as to the point in question, are as follows :

3. The four “ Turtle Receipts,” Nos. 2,792, 2,794, 2,795 and 2,796, given the bank by Keen-Sutterle Company, taken in connection with entries on books of Keen-Sutterle Company and the memorandum accompanying the collateral note, sufficiently described certain wool then in possession of Keen-Sutterle Company (being the 312 bales described in Invoice No. 3,392, covering shipment of wool per steamship Maryland from Suffert VonLaer & Company, of London) to sustain an equitable lien thereon as against Keen-Sutterle Company.

4. The Turtle Receipts were not warehouse receipts (Tradesmen’s Nat. Bank v. Jagode, 186 Pa. 556) but taken in connection with promissory note given by Keen-Sutterle Company to the bank, the memorandum accompanying the same and the entries on the books of Keen-Sutterle Company, they sufficiently evidence an intent on the part of Keen-Sutterle Company to give the bank an equitable lien on the goods therein described as security for the payment of said note.

5. Subject to the factor’s lien of Jagode & Company the bank is entitled to the proceeds of the 183 bales claimed by it.

We have found no reason to question the correctness of these findings. When the bank made the loan, it had title to the wool, as against Keen-Sutterle Company, and the right of possession. Under the authorities cited by the learned referee, we think the right of the bank was good as against general creditors, and against the assignee. The wool was turned over to Jagode & Company prior to the time of the insolvency of the Keen-Sutterle Company, and was not in the physical possession of the latter when the receiver took charge. The referee cites from the opinion of this court in Wright v. Wigton, 84 Pa. 163, as follows:

“ It is well settled in this state, by numerous decisions, that a voluntary assignee is not a bona fide purchaser for value. He is the mere representative of the debtor, enjojfing his rights only, and is bound where he would be bound: Twelves v. Williams, 3 Whart. 485 ; Vandyke v. Christ, 7 W. & S. 373; Ludwig v. Highley, 5 Pa. 132; In re Fulton’s Estate, 51 Pa. 204; Spackman v. Ott, 65 Pa. 131. Nor are the creditors for whom he holds the property in trust, purchasers for value. They are not parties to the deed. They have relinquished nothing in compensation of the benefits of the trust. They have not agreed to look to it for satisfaction of their claims. They have no title to the property assigned. They acquire a right to enforce the duty undertaken by the assignees.”

The referee goes on to show that in our state under the doctrine of Collins’s Appeal, 107 Pa. 590, an agreement by a debtor to give his creditors an equitable lien upon personal property retained in the possession of the debtor, is good as between themselves and will be enforced in equity. We agree with his application of the law to the facts of this case as expressed in the following statement; “ While the goods were then in the possession of Jagode and Company, they were in their hands as factors or agents of the Keen-Sutterle Company, and it was entirely competent for the Keen-Sutterle Company to have agreed with the bank at that time that it should have a lien, subject to the factor’s lien of Jagode and Company, upon these goods as security for its debt, and as shown by the cases already cited such an agreement would be valid and enforceable as against the general creditors of Keen-Sutterle Company or the assignee for the benefit of such creditors.”

The rigor of the rule requiring the purchaser to take and keep possession of personal property in order to hold title has been somewhat relaxed. “ The law does not have or set’ up an unbending test to be applied to all cases: ” White v. Gunn, 205 Pa. 229; Riggs v. Bair, 213 Pa. 402.

In the present case, we agree entirely with the conclusions of the referee which have been approved by the court below, as to the questions raised by this appeal.

None of the assignments are sustained, and the appeal is dismissed.


text:
    Smith v. J. B. Moors & Company, Appellant.

      Equity — Equitable assets — Distribution among creditors — Equality is equity — Mingling of goods.

    It is a general rule that equitable assets shall be distributed equally and pari passu among all the creditors without any reference to the priority or dignity of the debt; for the courts of equity regard all debts in conscience as equal jure naturali, and equally entitled to be paid; and here they follow their own favorite maxim that equality is equity. And if the fund falls short, all the creditors are required to abate in proportion.
    Where a pledgee of goods belonging to different persons, or upon which different persons have liens, mixes the proceeds of the sale of the goods so that it is impossible to identify any specific part of the money as having been derived from any specific goods, a court of equity will not prefer one claimant over another, but if there is a deficiency all will be required to abate in proportion.
    Argued March 26, 1906.
    May 24, 1906 :
    Appeal, No. 104, Jan. T., 1906, by J. B. Moors & Company, from order of C. P. No. 2, Phila. Co., Sept. T., 1899, No. 792, dismissing exceptions to referee’s report in case of C. Shillard Smith etal., trading as Philip Jagode & Company, v. Joseph B. Moors and Arthur W. Moors, trading as J. B. Moors & Company et al.
    Before Mitchell, C. J., Fell, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of H. Gordon McCoueh, Esq., referee.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to report of referee.

      Joseph de F. Junkin, for appellant,
    cited: Duplex Printing Press Co. v. Clipper Pub. Co., 213 Pa. 207.

      V. Gilpin Robinson, for appellee,
    cited : Parshall v. Eggert, 54. N. Y. 18.
   Opinion by

Mr. Justice Potter,

In the table of distribution prepared by the referee in this case he divided the balance of the fund remaining in the hands of Jagode & Company, after payment of their advances and factor’s costs, between the Tradesmen’s National Bank and J. B. Moors & Company in proportion to their respective claims. To this distribution Moors & Company excepted, claiming that they were entitled to payment in full before anything should be paid to the bank. These exceptions were overruled by the court, and the final decree was entered in accordance with the report of the referee, from which Moors & Company have taken this appeal. The claim of Moors & Company is that as they were the actual owners of the 127 bales of wool wrongfully pledged by the Keen-Sutterle Company, and sold by the pledgee, their equity to be reimbursed out of the fund is higher than that of the bank, which at the most had only an equitable lien upon the 188 bales represented by the supposed warehouse receipts. It is further contended that the bank had no title or interest in the wool, the papers given it not being warehouse receipts, and the wool never having been in its possession. The referee finds as a fact that the 127 bales of wool belonged to Moors & Company, and 183 bales of those claimed by the bank by virtue of the alleged warehouse receipts, were among the wool pledged to and sold by Jagode & Company, and the proceeds of their sale was part of the fund from which the present balance arises. There was no separate account of the sales. In considering the facts of the transaction we are not able to recognize any superior equity in favor of these appellants. They were bankers, and as such made advances to KeenSutterle Company for the purchase of wool. They took as security trust certificates, but it seems that Keen-Sutterle Company were authorized to sell the wool for the account of Moors & Company, and were to turn over the proceeds in payment of the advances. Keen-Sutterle Company committed a fraud upon Moors & Company by pledging the wool to Jagode & Company for borrowed money. The Tradesmen’s National Bank likewise loaned its money to Keen-Sutterle Company upon the credit of what it supposed to be genuine warehouse certificates, and this wool was also pledged by Keen-Sutterle Company to Jagode & Company. Without going further into the details of the transaction as they are fully set forth in Tradesmen’s Nat. Bank v. Jagode, 186 Pa. 556, and in Moors v. Jagode, 195 Pa. 163, it is sufficient to say that we find no substantial reason for holding that these appellants are entitled to be preferred as against the bank, in the distribution of the fund in the hands of Jagode & Company. We think that sufficient authority for this conclusion is to be found in the principles set forth in Thompson’s Appeal, 22 Pa. 16, and the line of cases which have followed it. A general statement of the same principle is found in 1 Story’s Eq. Jur. (13th ed.) sec. 554, where in treating of administration it is said : “ It is a general rule that equitable assets shall be distributed equally and pari passu among all the creditors without any reference to the priority or dignity of the debt; for the courts of equity regard all debts in conscience as equal jure naturalli, and equally entitled to be paid; and here they follow their own favorite maxim that equality is equity. And if the fund falls short, all the creditors are required to abate in proportion.”

It appears in the present case that the pledgees mixed the proceeds of the wool of the Keen-Sutterle Company, that of Moors & Company, a.nd that upon which the Tradesmen’s National Bank had a claim, so that it is impossible to identify any specific part of the money in their hands as having been derived from the goods of Moors & Company. Under this state of facts, as the fund resulting from these mingled assets is insufficient to pay both claimants in full, it seems to us that they were very properly required to abate in proportion to the amounts of their respective claims.

The assignments of error are not sustained, and the appeal is dismissed.


text:
    Lappe’s Estate.

      Wills — Probate—Issue—Bes adjudicóla.

    Where a jury certifies that a decedent died possessed of a last will and testament, and that the last will and testament was mislaid or destroyed after his death, and there is nothing in the proceeding to indicate that the jury had in mind any particular will although there were apparently two wills in existence at the time, the proceeding is not res adjudicata of an issue to determine whether one of the wills, particularly specified and described, had not been destroyed animo revocandi by the testator himself.
    Argued March 27, 1906.
    Appeal, No. 54, Oct. T., 1906, by C. O. Lappe et al., from decree of O. C. Allegheny Go., Oct. T., 1905, No. 218, refusing an appeal from register of wills in Estate of John Christian Lappe, deceased.
    Before Mitchell, C. J., Fell, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from register of wills.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the appeal.

      Hampton L. Carson, with him Jackson Lang and White, Childs Scott, for appellants.
    It is well settled that the jurisdiction of the common pleas in an issue devisavit vel non is limited to the specific questions of fact set out in the register’s precept: Jackson v. Tozer, 154 Pa. 223; Bitner v. Bitner, 65 Pa. 347; Hoxworth v. Miller, 7 Pa. 458.
    There is nothing res judicata in an issue devisavit vel non except what the statute makes so: Cavanaugh v. Buehler, 120 Pa. 441.
    If the common pleas court did not have jurisdiction to try the question of the validity of the “ Woodward ” will, it is respectfully submitted that appellants are not barred by reason of anything done in that court or in the Supreme Court on appeal, nor by lapse of time, from attacking that jurisdiction now: Gordon’s App., 93 Pa. 361.

      May 24, 1906 :

      J. M. Stoner and D. F. Patterson, for appellees.
    The court below very properly dismissed the appeal on the ground of res adjudicata: Kiern v. Ainsworth, 95 Pa. 310; Garber v. Doersom, 117 Pa. 162; Kelly v. Eichman, 3 Whart. 419; Egbert v. Darr, 3 W. & S. 517; Campbell v. Stephens, 66 Pa. 314; Weidner v. Matthews, 11 Pa. 336; Zimmerman v. Wengert, 31 Pa. 401; Huckestein v. Kaufman, 173 Pa. 199; Benson v. Maxwell, 105 Pa. 274; Ritter v. Sieger, 105 Pa. 400.
   Opinion by

Mr. Chief Justice Mitchell,

This litigation has had the misfortune to be presented piecemeal, with the result that after four years of time, two jury trials, two appeals to this court, and the various proceedings in the orphans’ court the substantial question at the basis is still the subject of doubt and difference of opinion in the court below. A careful statement of the facts is therefore necessary for a clear understanding of the present contention.

Lappe, the decedent, died in 1901, apparently intestate, and letters of administration were granted to a trust company.

In May, 1902, Anna M. Gfeller, a stepdaughter, presented a petition to the register averring that decedent had made a will in 1900, in which she was a beneficiary, and praying that it should be produced, or if lost its contents should be proved and a copy be admitted to probate. The parties cited having denied the facts alleged or disclaimed knowledge of them, the register issued his precept to the court of common pleas No. 2 and a trial was had with a result which was apparently treated as establishing the will set up in the petition, termed for convenience the Woodward will. On appeal the judgment was affirmed: Gfeller v. Lappe, 208 Pa. 48. A copy was then admitted to probate, as of a lost will.

Shortly after this probate, on petition of a granddaughter and others alleging that decedent had made a later will, the orphans’ court opened the probate of the Woodward will, and the register issued a new precept to common pleas No. 1. On this a trial was had and a verdict rendered against the alleged later will, known for convenience as the Morgenroth will. On appeal the judgment on this issue was affirmed : Lappe v. Gfeller, 211 Pa. 462.

This result having been certified to the register, the orphans’ court held that the probate of the Woodward will was closed again and no further steps in that regard were required.

In October, 1905, the opponents of the Woodward will petitioned the orphans ’ court for allowance of an appeal from the probate of that will, on the ground that it had been destroyed animo revocandi by the testator himself. On hearing before Ovek, J., and testimony taken, the petition was dismissed, and subsequently exceptions were dismissed by the majority of the court, the president judge dissenting. The question on which the judges differed was whether the validity of the Woodward will was res adjudicata by the previous proceedings. That is the question now before us on this appeal from that decree.

The first matter for our consideration is whether this court has passed upon the question, or on anything relevant and material to it. An examination of the two decisions makes it clear that we have not. Gfeller v. Lappe, 208 Pa. 48 was an appeal from the judgment in C. P. No. 2 on the verdict under the first precept from the register. That precept and what it involved will be considered later on. What was before this court was solely a question of evidence. The only error assigned was the refusal of binding instructions for defendant, and the only question before us was indicated in the opinion of our Brother Fell, “Since this will was last seen in his (testator’s) possession, and was not found after his death, the presumption was that he had destroyed it. To overcome this presumption and establish the existence of the will at his death testimony was presented,” etc., which the opinion goes on to show was sufficient to go to the jury in rebuttal of the presumption. On the other hand, was urged the direct testimony that the testator had destroyed the will in his lifetime, but as was said in the opinion the veracity of the witness and the completeness of the identification of the paper he saw the testator destroy were for the jury. The validity of the will was apparently assumed by all parties after the verdict, and no opinion was expressed by this court upon it.

The second case, Lappe v. Gfeller, 211 Pa. 462, was an appeal from the judgment of C. P. No. 1, on the issue as to the Morgenroth will. As in the prior case the only questions raised were as to the evidence, and did not involve the Woodward will at all. So far therefore as the present question is concerned it is here for the first time.

Recurring now to the outline of the facts, supra, it is manifest that the hinge of the case is the first issue directed by the register to the court of common pleas No. 2. The form in which this was sent to the court was “ to try the following issues of fact, to wit:

“ 1. Whether John Christian Lappe, deceased, died possessed of a last will and testament, and if so, was the same mislaid or destroyed after his death.

“ 2. If the said John Christian Lappe, made his last will and testament, was the same destroyed on the — day of May, 1901, and was he at that time of sound mind so as to be able to revoke such will?” The verdict certified back by the court was that Lappe “ died possessed of a last will and testament, and, secondly, that the last will and testament of John Christian Lappe was mislaid or destroyed after his death.”

This was the source of all the subsequent trouble. Unfortunately, the precept was for a futile and inconclusive inquiry. It raised no issue which was authorized by the statute, and neither it nor the verdict determined any fact material to the real controversy. What the law contemplates is not a general inquiry whether the decedent left a will, but whether he left as a will the particular writing propounded for probate, attached to the precept, and submitted to the jury to find its execution and, in cases like the present of alleged loss, its continued existence and its terms. The language of the Act of March 15, 1832, P. L. 135, is that the precept shall set forth the presentation for probate of “ a certain writing hereto annexed ” and the jury are “ to try the validity of the said writing.” It is strongly urged that this will was in contemplation of the parties to the trial and evidence regarding it was submitted to the jury and therefore that the failure to attach a copy to the precept was “ an immaterial variation” from the prescribed form which under sec. 43 of the statute shotild not vitiate the proceedings. The bearing of the evidence will be considered later, but the omission of the writing itself cannot be considered an immaterial variance, it was the omission of the substantial basis of the whole proceeding. To show the materiality of having the paper itself before the jury it is only necessary to refer to the possibility of a conflict of testimony over the terms of the alleged will or the correctness of the copy put forward.

It is urged that at the trial the Woodward will .was in the contemplation of all the parties, that the evidence in regard to it was fully put before the jury and therefore its validity, continuance, and contents, must be treated as the real issue and as having been decided by the verdict. But the conclusion does not follow. Even if it could be conceded that the jury might decide a matter not within the issue on the record before them, they have not done so. It is settled, of course, that in deciding any fact a' jury must be assumed to have decided any other or collateral fact necessarily involved in the main finding. But this verdict was only that Lappe left a will, not this will, nor any other particular will, identified by date, contents, witnesses or otherwise. So far as appears there were at the time of the trial, in existence or at least as subjects of proof, two wills, the Woodward and the Morgenroth. Either would satisfy the terms of this verdict. No doubt the evidence before the jury related mainly if not entirely to the Woodward will, and was sufficient to satisfy them that Lappe left a will. But whether it would have satisfied them that this particular will was the one which he left, and that the terms of it were correctly set forth, we have no means of knowing. They did not so find in express terms, or by necessary implication, and the evidence on which they might have so found was not put before their minds as involving that question. It is certainly not desirable that the results of a verdict on a genuine.trial should be lost for formal or technical defects. But it is still less so to have a verdict stretched beyond its express terms to cover a result which is not clearly within the intent of the jury even if it be conceded to be within their power. The establishment of the execution and contents of a lost will, especially in the face of the presumption arising from the fact that it was last known to be in the possession of the testator, is a matter requiring careful administration at all times and one in which loose practice may be peculiarly dangerous. On the whole case it is clear that the so-called Woodward will has not been passed upon directly by a jury or by anyone but the register. As it involves not only the proof of the execution and contents of a paper not produced, but also the veracity of witnesses and the sufficiency of evidence to overcome a legal presumption, it is a matter justifying submission to a jury.

Decree reversed and appeal directed to be allowed.


author: Mr. Justice Potteb,

text:
    House of Refuge, Appellant, v. Luzerne County.

      Constitutional law — Title of act — House of Refuge — Act of May 11, 1901, P. L. 158.
    The Act of May 11, 1901, P. L. 158, entitled “ An Act to provide for the maintenance and instruction of children committed to houses of refuge which are not exclusively under state control,” which provides that one-half of the expense of maintenance and instruction shall be borne by the county from which a child is received is constitutional. The fact that there is no reference in the title to the provision that the counties are to bear such expense, is immaterial, inasmuch as the counties already bore the expense under the Act of March 2, 1827, P. L. 76, which was not repealed by the unconstitutional Act of January 10, 1867, P. L. 1371.
    Argued April 9, 1906.
    Appeal, No. 317, Jan. T., 1904, by plaintiff, from order of C. P. Luzerne Co., June T., 1902, No. 165, dismissing exceptions to report of referee in case of House of Refuge v. County of Luzerne.
    Before Mitchell, C. J., Mestrbzat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to report of Joseph D. Coons, Esq., referee.
    The opinion of the Supreme Court states the case.

      Error assigned was order dismissing exceptions to report of referee.

      John Gf. Johnson, with him N. Dubois Miller and II. A. Fuller, for appellant.
    The provisions of the Act of May 11,1901, P. L. 158, follow naturally and inevitably from its avowed purpose as stated in the title, which clearly expresses its purpose. The title is therefore not misleading and the act is constitutional: Com. v. Curren, 9 Phila. 623; Commissioners v. Hall, 7 Watts, 290; McCalmont v. Allegheny County, 29 Pa. 417; Venango County v. Durban, 8 Grant, 66; Allegheny County v. Watt, 3 Pa. 462; Lancaster County v. Mishler, 100 Pa. 624; Com. v. Green, 58 Pa. 226; Allegheny County Home’s Case, 77 Pa. 77; Hays v. Cumberland County, 186 Pa. 109; Road in Phœnixville, 109 Pa. 44; Quinn v. Cumberland County, 162 Pa. 55; Dailey v. Potter County, 203 Pa. 593; Stegmaier v. Jones, 203 Pa. 47.
    May 24, 1906 :

      William 8. McLean, for appellee.
   Opinion by

Mr. Justice Potteb,

The House of Refuge brought suit against Luzerne county to recover the sum of $4,396.32 with interest, being one-half the expense of maintaining and instructing certain children received from that county, who were committed to the House of Refuge, and became inmates thereof.

The action was based upon the Act of May 11, 1901, P. L. 158, entitled, “ An act to provide for the maintenance and instruction of children committed to Houses of Refuge which are not exclusively under state control.” And it provides that whenever a child shall be committed to a house of refuge which is not exclusively under state control and becomes an inmate thereof, one-half of the expense of maintaining and instructing such child shall be borne by the county from which the child shall have been received, and the remaining half shall be paid out of appropriations made from time to time by the state. The act further provides a method of presenting the bills and collecting the amount due by the several counties. The case was referred to a referee, who found as a fact that if the plaintiff is entitled to recover at all, the judgment should be for $4,339.33, with interest. But he reached the conclusion of law that the Act of May 11, 1901, P. L. 158, was unconstitutional because the subject of the act, or at least so much of it as was supposed to place an additional burden on counties, was not clearly expressed in its title, and therefore the plaintiff was held not to be entitled to recover. Exceptions to the referee’s report were overruled by the court, and judgment entered for defendant, from which judgment plaintiff has appealed.

The sole question raised by this appeal and assignments of error is the constitutionality of the act of 1901. The House of Refuge, as originally incorporated by Act of March 23,1826, P. L. 133, entitled “ An act to incorporate the subscribers to the articles of association for the purpose of establishing and conducting an institution for the confinement and reformation of youthful delinquents, under the title of the house of refuge,” was an association of citizens, as stated in the preamble, “ formed in the city and county of Philadelphia for the humane and laudable purpose of reforming juvenile delinquents and separating them from the society and intercourse of old and experienced offenders, with whom, within the prisons of said city, they have been heretofore associated, and thereby exposed to the contamination of every species of vice and crime.”

The act of 1826, sec. 6, empowered the managers at their discretion to receive into the House of Refuge “ such children who shall be taken up or committed as vagrants, or upon any criminal charge, or duly convicted of criminal offenses, as may be, in the judgment of the court of oyer and terminer, or of the court of quarter sessions of the peace, of the county, or of the Mayor’s court of the city of Philadelphia, or of any alderman or justice of the peace, or of the managers of the almshouse and house of employment, be deemed proper objects.”

This act was limited to Philadelphia, and no provision was made for the maintenance of inmates, as no buildings had yet been erected for their reception.

By the Act of March 2,1827, P. L. 76, entitled “ an act to endow the ‘House of Refuge’ and for other purposes therein mentioned,” an appropriation of $10,000 was made from the state treasury and the county of Philadelphia was also required to make appropriations to the extent of $35,000 for the purposes of the institution. The act further provided, by sec. 4, that the managers should receive “ such children who shall be convicted in the court of oyer and terminer or quarter sessions of any county, except the county of Philadelphia, or Mayor’s court of any city except the city of Philadelphia, of any offense which under the existing laws would be punished by imprisonment in the penitentiary, as may be in the judgment of said courts deemed proper objects for the House of Refuge; and the children so received shall be clothed, maintained and instructed by the said managers at the proper expense of the proper county, and the accounts of the said children shall be kept by the said managers in the same manner that the accounts of convicts in the penitentiary are now directed to be kept by the inspectors thereof.”

The Act of April 10, 1835, P. L. 133, broadened the class very considerably, so as to include: “1. Infants committed by an alderman or justice of the peace, on the complaint and due proof made to him by the parent, guardian or next friend of such infant, that, by reason of incorrigible or vicious conduct such infant has rendered his or her control beyond the power of such parent, guardian or next friend, and made it manifestly requisite that, from regard for the morals and future welfare of such infant, he or she should be placed under the guardianship of the managers of the House of Refuge. 2. Infants committed by the authority aforesaid, where complaint and due proof have been made that such infant is a proper subject for the guardianship of the managers of the House of Refuge, in consequence of vagrancy, or of incorrigible or vicious conduct, and that from the moral depravity, or otherwise, of the parent or next friend in whose custody such infant may be, such parent or next friend is incapable or unwilling to exercise the proper care and discipline over such incorrigible or vicious infants. 3. Infants committed by the courts of this commonwealth in the mode provided in the act to which this is a supplement.”

It will be noticed that by the 4th section of the act of March 2d, 1827, the cost of maintenance of the children was placed upon the county from which they were sent. No change was attempted in this respect until the passage of the Act of January 10, 1867, P. L. 1371, which is entitled “A further supplement to an act entitled ‘ An act to incorporate the subscribers to the articles of association for the purpose of establishing and conducting an institution for the confinement and reformation of youthful delinquents under the title of the House of Refuge,’ passed March 23, 1826.” Turning to section 3 of this act of 1867, we find that it provides “ That the fourth section of a further supplement to an act, entitled (giving title of act of 1826 as above) passed the 2d day of March, 1827, be and the same is hereby repealed.” But in fact the Act of March 2, 1827, P. L. 76, is not, by its title, a supplement to the Act of March 23, 1826, P. L. 133, but is entitled “ An act to endow the ‘ House of Refuge ’ and for other purposes therein mentioned.” The reference to it, therefore, in the act of 1867, as “ a further supplement,” etc., would seem to be clearly erroneous.

The section which it was sought to repeal by the act of 1867, was not contained in the act mentioned in the title to the repealing bill. It is contained in another and later act. The amendment to the constitution, forbidding the passage of any bill containing more than one subject, which should be clearly expressed in the title, was adopted in 1864, and was in force at the time of the passage of the act of 1867. The title of this act gives no notice whatever of any intention to repeal the 4th section of the act of 1827. The situation is analogous to that in Ruth’s App., 10 W. N. C. 498, and the principle there set forth is applicable here. It was there held by the court below, and affirmed by this court, that the Act of April 7, 1877, P. L. 83, entitled, “ A further supplement to an act to incorporate the city of Scranton,” which provided for the repeal of a clause in that act relating to the collection of taxes, was unconstitutional and void, because it did not clearly express the subject thereof in the title.

The court below there said (p. 500) : “ If the title clearly expressed the subject of the bill, it should be read in this manner : ‘ A further supplement to an act to incorporate the city of Scranton and to repeal the 42d section of the act approved the 23d day of April, 1866, exempting the said city from the payment of county tax.” In that case the provision sought to be repealed was contained in the act to which the repealing bill was a supplement, and even then the title was held defective. Much more, then, does it fall short, when as here the provision to be repealed is not found in the act of 1826, to which the act of 1867 refers, but is found in another statute, that of March 2, 1827. We are brought then to the conclusion that the repealing act of 1867, is unconstitutional and void, by reason of the failure to give any notice in its title of an intention to repeal the 4th section of the act of 1827.

That section, therefore, stands unrepealed, and, if so, then counties from which children were committed to the House of Refuge were already liable for their maintenance when the act of 1901 was passed. That act, therefore, did not .impose any additional liability upon the counties, but on the contrary relieved them of one-half of the burden to which they had been subject before that time.

We are therefore of opinion that the learned court below erred in holding that the act of May 11, 1901, is unconstitutional. The judgment is reversed, and is ordered to be entered for the plaintiff in the amount found to be due by the referee.


author: Me Justice Potter,

text:
    Slota, Appellant, v. The Albert Lewis Lumber & Manufacturing Company.

      Negligence — Master and servant — -Crossing railroad track — Falling under train — Contributory negligence.

    In an action against a lumber company to recover damages for personal injuries a nonsuit is properly entered, where it appears that the plaintiff was ordered by the defendant’s foreman to cross a railroad track in order to load cars, that on a part of the track in question there was standing a train of cars with a locomotive attached, not under the control of defendant; that the plaintiff instead of going over the cars or around them, stooped down and crawled under the cars, and while in this position was injured by the starting of the train.
    Argued April 9, 1906.
    Appeal, No. 271, Jan. T., 1905, by plaintiff, from order of ■ C. P. Luzerne Co., Oct. T.,' 1895, No. 247, refusing to take off nonsuit in case of John Slota v. The Albert Lewis Lumber & Manufacturing Co., and the Lehigh Valley Railroad Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      8. S. Herring, with him E. A. Lynch, for appellant.
    The case was for the jury : Lee v. Woolsey, 109 Pa. 124; Woodward v. Shumpp, 120 Pa. 458; Patterson v. R. R. Co., 76 Pa. 389; Reese v. Clark, 198 Pa. 312; Dallemand v. Saalfeldt, 48 L. R. A. 753; Stephens v. Hannibal, etc., R. R. Co., 96 Mo. 207 (9 S. W. Repr. 589); Moline Plow Co. v. Anderson, 19 Ill. App. 417; Shortel v. St. Joseph City, 104 Mo. 114 (16 S. W. Repr. 397) ; Keegan v. Kavanangh, 62 Mo. 230; Lofrano v. New York, etc. Water Co., 55 Hun, 452 (8 N. Y. Supp. 717) ; Newbury v. Lumber, etc., Co., 100 Iowa, 441 (69 N. W. Repr. 743); Ill. Steel Co. v. Schymanowski, 162 Ill. 447 (44 N. E. Repr. 876); Hawkins v. Johnson, 105 Ind. 29 (4 N. E. Repr. 172) ; Haley v. Case, 142 Mass. 316 (7 N. E. Repr. 877) ; Stackman v. Ry. Co., 80 Wis. 428 (50 N. W. Repr. 404); Offutt v. World’s Columbian Exposition, 175 Ill. 472 (51 N. E. Repr. 651) ; Norfolk, etc., R. R. Co. v. Ward, 90 Va. 687 (19 S. E. Repr. 849).
    May 24, 1906 :

      Henry A. Fuller, with him Paul Bedford, for appellee.
   Opinion by

Me Justice Potter,

The plaintiff in this case was injured while attempting to cross under the bumpers of two adjacent railroad cars. The evidence does not show that he was ordered to go under the bumpers. It does show that in order to complete the work in which they were engaged, he, in common with his fellow laborers, was ordered to go across the track upon which a train of cars was standing, attached to an engine.

Some of the men went around the end of the train, some went between the cars, climbing over the bumpers, while the plaintiff, actuated no doubt by a desire to make haste, stooped down and attempted to crawl under. During this attempt the train started, and plaintiff was injured.

Nothing is more commonly recognized as dangerous than such an attempt as this to go under a train which is liable to start or be moved at any time. It does not appear from the evidence who started the train, but it is averred in the declaration that the engineer of the railroad company quickly moved the train, and thus caused the injury to the plaintiff.

The employer of the plaintiff was the lumber company, and neither it nor its employees were shown to have had any control over the movement of the cars. The accident was not the direct result of the order given to the plaintiff to go across the track, but it came by reason of the negligent way in which he attempted to perform the act of crossing. Of course he assumed that he would have time to pass under before the train started, but this assumption involved an altogether needless risk. The man directly in front of him climbed over the bumpers, and no reason is shown why the plaintiff could not have crossed in the same way, with considerably less risk to himself.

This case is not to be classed with those in which a servant is ordered by the master to perform some particular act, and is injured while doing the specific thing he was ordered to do, and in the manner directed. The thing which the plaintiff was here ordered to do, was to cross over the tracks and load lumber upon the cars from the opposite side. The main purpose which he was to accomplish, and the work which he was to perform, was the loading of the lumber upon the cars. The manner in which he crossed the track to do the work was necessarily, to some extent at least, in his own control. We cannot regard the order of the foreman as a direction to him to crawl under the bumpers, and thus place himself in a peculiarly dangerous and helpless condition, in case the train should be started. Under the evidence as a whole, we see no error in the refusal to take off the nonsuit.

The judgment is affirmed.


author: Per Curiam,

text:
    Lally v. Central Valley Railroad Company, Appellant.

      Railroads — Eminent domain — Witness—Competency of witness.

    Where land is taken by a railroad in a neighborhood where sales of real estate are few and at long intervals, a witness called to testify as to values is not required to have as full and detailed knowledge on the subject as in other localities where sales are frequent and of public interest,and attention. In all questions of competency on such a subject there must be a sliding scale, the only standard of which is that the witness shall have such knowledge of the subject-matter as can be reasonably expected in view of the circumstances of the particular case.

      Argued April 9, 1906.
    May 24, 1906:
    Appeal, No. 281, Jan. T., 1905, by defendant, from judgment, of C. P. Luzerne Co., May T., 1902, No. 738, on verdict for plaintiff in case of Thomas Lally v. Central Valley Railroad Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Lynch, P. J.
    At the trial several witnesses were called on behalf of the plaintiff to testify as to land values. They all testified that they were familiar with the land in question and the value of land in the neighborhood, and prices at which properties were held. Only one of the witnesses, however, testified as to an actual sale in the particular neighborhood.
    The court under objection and exception permitted the witnesses to testify as to values.
    Verdict and judgment for plaintiff for $1,800. Defendant appealed.

      Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions.

      Cormae Eraneis Bohan, with him John T. Lenahan, for appellant.

      M. IT. Donnelly and P. A. O’Boyle, for appellee.
   Per Curiam,

The market value of land even in cities is not capable of exact proof, like that of stock or the staple commodities of trade, such as flour, or sugar, or pig iron. At best it is matter of opinion not strictly of experts, but of those who are shown to be familiar with the neighborhood, the situation and availability of the particular tract, the buying and selling value as shown by such sales or transactions as have occurred under circumstances to make them fair bases for inference as to the particular matter in issue. In neighborhoods where sales are few and at long intervals it would be unfair and impracticable to require as full and detailed knowledge on the part of witnesses as in other localities where sales are frequent and of public interest and attention. Opinion of any kind is a poor quality of evidence, and where admissible at all is only so because it is the best that is available. In all questions of competency on that subject there must be a sliding scale, the only standard of which is that the witness shall have such knowledge of the subject-matter as can be reasonably expected in view of the circumstances of the particular case. The witnesses in the present case appear to have come fairly up to that requirement: Leiby v. Clear Spring Water Co., 205 Pa. 634 (644) ; Smith v. Penna. R. R. Co., 205 Pa. 645; Hope v. Phila., etc., R. R. Co., 211 Pa. 401.

Judgment affirmed.


author: Per Curiam:,

text:
    Trescott, Appellant, v. Co-operative Building Bank of New York.

      Judgment — Opening judgment — Pleading—Insufficient statement of claim.

    A judgment entered for want of an affidavit of defense will be opened where it appears (1) that it is doubtful whether at the date of the judgment, fifteen days’ notice of the filing of plaintiff’s statement had been given, (2) that the defendant moved promptly to have the default taken off, setting forth a meritorious defense explaining the delay, and (3) that the plaintiff’s statement was not sufficient to call for an affidavit of defense.
    Argued April 9, 1906.
    Appeal, No. 287, Jan. T., 1905, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1902, No. 17, making absolute rule to open judgment in case of Rush Trescott v. The Co-operative Building Bank of New York.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment.
    Ferris, J., filed the following opinion:
    This action was begun and summons issued June 3, 1902.
    On April 21, 1903, the plaintiff filed a statement claiming $3,971.78 as compensation for alleged services rendered.
    On May 7,1903, judgment was entered in favor of the plaintiff on his own praecipe for want of an affidavit of defense.

      On the following day, May 8, counsel for defendant filed an affidavit of defense made by himself alleging in general terms the existence of a full and complete defense to the whole of the plaintiff’s claim, explaining why it was not then set forth in detail and praying for a rule to open the judgment with permission to file an additional affidavit of defense.
    On next day, May 9, a rule was granted to show cause why the judgment should not be opened. This rule was made “returnable to argument court.”
    On May 19, an additional affidavit of defense was filed. This affidavit was made by the general manager of the defendant and contained a detailed statement of the matters relied on as a defense.
    At an argument court held on May 27, the case being on the argument docket, and no one appearing in support of the rule, it was discharged upon application of the plaintiff.
    On February 20, 1904, an execution was issued on this judgment, whereupon defendant’s counsel presented to the court a petition praying for a reinstatement of the rule to open. Argument was heard on this petition and in view of the plaintiff’s allegation that a material witness had died and others had removed from the state during the nine months’ delay by defendant in making its application, the court was of opinion that the defendant was guilty of laches and the prayer of the petition was, for that reason, denied.
    On March 14, 1904, upon presentation of a petition alleging that the plaintiff’s statement was insufficient to warrant a summary judgment for want of an affidavit of defense, a rule was granted to show cause why the judgment should not be stricken off. This rule was discharged on July 2, 1904, not because the statement was deemed sufficient, but because of laches and waiver of irregularities by defendant’s recognition of the judgment in making application to present a defense on the merits.
    An appeal was taken, and in dismissing it Mr. Chief Justice Mitchell, speaking for the Supreme Court, said:
    “ The only questions raised by the assignments of error relate to the interpretation and administration by the court below of its own rules. In such cases we have often said that the judgment will not be disturbed except for clear error, to the substantial injury of the party complaining. No such error has been shown here.” After commenting upon the discreditable condition of the record the chief justice goes on to say: “ The confusion and uncertainty in regard to the date of notice and other matters may also well suggest to the court whether a rehearing of the case on the regularity of the whole proceeding in regard to the judgment may not be advisable. Such rehearing is for that court, not for us.”
    Acting upon this intimation, and in the light of all the facts and circumstances of the case, the judges of this court were unanimously of opinion that such rehearing should be had, and that, in the former refusal to reinstate the original rule to open, too little weight had been given to the allegations of the defendant’s counsel (since verified by the depositions) (1) of conduct on the part of plaintiff tending to mislead the court into the belief that on May 27, 1903, the rule to open was, as it appeared to be, regularly on the list and ripe for disposition, by withholding information that he had ordered the case oh the list after the latter was made up and without giving notice to opposite counsel as required by our court rule on the subject ; and (2) subsequent conduct of the plaintiff tending to mislead defendant’s counsel into the belief that the rule still remained undisposed of, and to induce, and perhaps in a measure excuse, what the court deemed a negligent failure to examine the record when (early in August) the September argument list was published with this case omitted from it. The present rule to open the judgment was, therefore, granted. Depositions have been taken and argument heard by the court in banc, and, with the concurrence of all the judges, the rule has been made absolute. No opinion was filed at the time, but, inasmuch as an appeal has been taken we deem it our duty to the Supreme Court to give our reasons for this action.
    The question of waiver and of estoppel by laches being eliminated, the case may be considered as though the original rule to open were still pending and to be disposed of under the facts and circumstances disclosed by the evidence. It seems to be undisputed that the plaintiff filed a statement on April 21, 1903, which bore date April 23. He says this was a mistake, and that he put the date April 23 on the paper on the 21st because-he had just written that date on a promissory note. He further states that on April 21, after filing his statement, he gave to the defendant’s counsel a written notice that he had done so, and that unless an affidavit of defense were filed within fifteen days he would ask for judgment; that upon this notice he had written the words “ service accepted ” (without any date) under which defendant’s counsel wrote his name; that he (plaintiff) afterwards wrote in the date April 28, 1903, above the signature of defendant’s counsel, which act, by the way, he terms an indiscretion and then, noticing that this was a mistake, changed it to April 21, 1903, at the same time placing the date, April 21, 1903, under his own signature to the notice; that he then took the paper to the prothonotary’s office and made and subscribed an affidavit that he had served the notice on April 21; that this affidavit was either made on May 6 (when it is marked as filed) and the jurat dated May 7 by his own mistake, or it was made and filed on May 7 and marked by a mistake of the prothonotary’s deputy as filed on the 6th.
    The defendant’s counsel denies on oath that the notice was served on him on the 21st of April, but says that he accepted service of it on the 23d, at which time a copy was handed to him by the plaintiff, on the back of which he (defendant’s counsel) indorsed the date of service, to-wit: April 23,1903, in pencil.
    Whatever may be the truth in this respect, it is undisputed that judgment for want of an affidavit was taken on May 7, and an affidavit claiming a full defense was filed on May 8, and a rule to open the judgment was obtained on May 9. Assuming the defendant’s version of the date of notice to be the true one, the affidavit was filed in time and the judgment prematurely taken. Assuming the plaintiff’s version to be true the defendant’s counsel moved promptly to have the default excused, and his client afforded an opportunity to establish its claim of a just defense to the action. In his affidavit he avers the existence of a meritorious defense, and explains the delay in filing it by saying that for upwards of fourteen days the defendant had three clerks engaged in compiling the items essential to a complete detailed affidavit of defense. Taking this explanation in connection with the belief of the counsel, as appears from his testimony, that he had fifteen days from April 23 in which to file the affidavit (even though it were assumed that he was mistaken in that belief), we are of opinion that this judgment should be opened and his client given an opportunity to be heard on the merits of the case.
    An additional reason for opening the judgment is presented by the plaintiff’s failure, in his statement as filed, to set forth his cause of action with that clearness and precision which the law requires.
    1. When the services were rendered for which compensation is claimed is not stated.
    2. The first item of charge, viz : “ Commission in collection of J. W. Ruch mortgage $50.00,” is vague and indefinite, there being no statement as to when the collection was made, what amount was realized or what percentage of commission claimed.
    3. There is no averment that the sums claimed as commission, or any of them, were agreed upon between the plaintiff and the defendant, nor that the percentage of computation (where that is given), was so agreed upon, nor when the services were rendered, nor that the several amounts claimed were a reasonable and just compensation therefor. Nor is the number and term of the case and names of the parties specified in what is termed “ si. fa. sur. mort. in case of Bank vs. Cook,” so that the same would be readily found by reference to the indices kept by the prothonotary, in an attempt to verify the claim for costs paid, nor is it stated when said costs were paid. Nor, in the claim “ For recording two deeds $5.00,” are we told when the fees were paid, to whom, or what deeds the claim refers to.
    4. Neither are we informed when the alleged services were performed in supervising repairs on the W. G. Custer and Mr. Preligo houses, nor why the defendant should be charged $100 therefor; nor in what case of what “ Bank ” against N. G. Cook, nor when an attorney fee of $50.00 was earned; nor during what period of five years the services were performed which are vaguely referred to in clauses (a) (b) (c) (d) and (e) of paragraph (4) of the statement.
    5. Neither is there any statement of the period during which interest to the amount of $531.02 is claimed.
    For these reasons, therefore, eliminating as already stated the questions of waiver and laches, the rule to open the judgment has been made absolute (1) that, to say the least, it is doubtful whether at the date of the judgment fifteen days’ notice of the filing of the plaintiff’s statement had been given; (2) that even if it had been the defendant moved promptly to have the default taken off, setting forth a meritorious defense explaining the delay; and (3) that the plaintiff’s statement was not sufficient to call for an affidavit of defense, and the filing of one is no waiver of the defendant’s right to object to it upon that ground: Hutchinson v. Woodwell, 107 Pa. 509 ; Bartoe v. Guckert, 158 Pa. 124, 126.
    May 24, 1906 :

      Error assigned was the order of the court.

      T. II Martin and James L. Lenahan, with them Rush Trescott, for appellant.

      John McQ-ahren, with him M. II. McAniff, for appellee.
   Per Curiam:,

Judgment affirmed on the opinion of the court below.