text:
    Staake, Appellant, v. Pennsylvania Railroad Company.

      Contract — Sale—Iron ore — Delivery—Separation from, bulk.

    1. Where an owner of 6,000 tons of iron ore stored on a railroad dock gives an order to the railroad Gompany to deliver 3,500 tons to a furnace company, and the latter company does not take possession of the 3,500 tons, and does not separate it from the other ore, and the seller hearing of the financial embarrassment of the furnace company gives orders to the railroad company to deliver the iron ore to other parties, and these orders are honored, the furnace company cannot maintain an action of trover and conversion against the railroad company, inasmuch as the furnace company never had in it any title to the ore.
    2. If, iñ such a case, it appeared that the order was given to the railroad company merely as an accommodation to the furnace company without any consideration to the owner of the ore, such order could be revoked at any time before the furnace company took possession of the ore.
    Argued March 24, 1911.
    Appeal, No. 30, Jan. T., 1911, by plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1908, No. 4,688, for defendant non obstante veredicto in case of William H. Staake, trustee of the estate of Saxton Furnace Company, in Bankruptcy, v. The Pennsylvania Railroad Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit changed by agreement of counsel to trover and conversion. Before McMichael, P. J.
    From the record it appeared that the plaintiff claimed damages for the conversion of 3,500 tons of Hiawatha iron ore which had been stored on the docks of the defendant at Erie, Pennsylvania.

      At the trial it appeared that on August 8,1903, Drake, Bartow & Co. had on the docks of the defendant company at Erie, Pa., about 6,000 tons of Hiawatha iron ore, and on that day they sent to the Saxton Furnace Company a letter and an order for 3,500 tons as follows:
    “Cleveland, August 8th, 1903. “The Saxton Furnace Co., Phila., Pa.
    “Gentlemen: — We hand you herewith order on P. & E. Dock Co. Erie, Pa. for 3500 tons of Hiawatha ore.
    “Kindly give us credit for this amount, and oblige,
    “ Yours truly,
    “Erie. Drake, Bartow & Co.”
    “Cleveland, August 8th, 1903.
    “Davis Rees, Agent, Erie, Pa.
    “Please transfer for our account, as below from amount now on dock, in our name 3500 tons Hiawatha Ore to Saxton Furnace Co., Saxton, Pa.
    “Yours truly,
    “Drake, Bartow & Co.,
    “By L.”
    The Saxton Furnace Company took no steps to separate the 3,500 tons from the other ore, but pledged the order with L. & R. Wister Co. for advances. The amount of ore was depleted from time to time by shipments on various orders until on February 29,1904, there was only 847 tons on hand. Subsequently the Saxton Furnace Company was adjudicated a bankrupt and William H. Staake was appointed trustee in bankruptcy. Subsequently he made demand on the railroad company for the iron ore, which demand was refused. There was evidence that the order for 3,500 tons was merely for the accommodation of the furnace company, and was without consideration.
    At the trial the jury returned a verdict for plaintiff for $12,967.50. Subsequently the court entered judgment for defendant n. o. v., Ferguson, J., filing the following opinion:

      I concur with the trial judge in his view that the order of August 8, 1902, which is the basis of the action, was given for the accommodation of the Saxton Furnace Company, and as between it and Drake, Bartow & Co., it was without consideration, and up to the time of delivery, it was subject to revocation. There is nothing in the evidence which would justify a finding contrary to this view on the facts, and for that reason, judgment should be entered for the defendant non obstante verdicto. T am of opinion, however, that for another reason such a judgment may be sustained.
    The action is in trover and conversion, and in such case the plaintiff must show both property in himself and the right to possession at the time of the conversion or commencement of the action: Farmers’ Bank v. McKee, 2 Pa. 318; Pennsylvania Railroad Co. v. Hughes, 39 Pa. 521; Duffield v. Miller, 92 Pa. 286. The evidence clearly shows that at the time the order was delivered, Drake, Bartow & Co. had 5,912 tons of ore upon the docks of the Pennsylvania Railroad Company, at Erie. The order of August 8 was for 3,500 tons. In my view, it is of little importance whether or not the order was presented to the railroad company and filed with it in accordance with its rule. There was no attempt made by the Saxton Furnace Company, or by L. & R. Wister & Co., to separate the 3,500 tons represented by the order from the bulk of the ore upon the dock, and for this reason, under the authorities, the title never passed. Wister & Co. accepted the order as a basis of credit, and so long as they left the ore in the mass upon the dock, their security was in jeopardy and liable at any time to be destroyed by shipments. We are not concerned, however, with the position of Wister & Co.; they appear to have been satisfied, and to have surrendered the order to the Saxton Company, or its representative. The rule which would defeat Wister & Co. must necessarily defeat the Saxton Company. The law on the subject is thus stated by Rogers, J., in Hutchinson v. Hunter, 7 Pa. 140 (page 141): “The fundamental rule .... is, that the parties must be agreed as to the specific goods on which the contract is to attach before there can be a bargain and sale. This, as Mr. Blackburn, in his treatise on the Contract of Sale, page 120, very correctly observes, is founded in the very nature of things. Till the parties are agreed as to the specific identical goods, the contract can be no more than a contract to supply goods answering a particular description, and since the vendor would fulfill his part of the contract by furnishing any parcel of goods answering that description, and the purchaser could not object to them if they did answer that description, it is clear that there can be no intention to transfer the property in any particular lot of goods more than another till it is ascertained which are the very goods sold (page 142). It makes no difference, although the goods are so far ascertained, that the parties have agreed that they shall be taken from a specified larger stock. In such a case, the reason still applies; the parties did not intend to transfer the property in one portion of the stock more than another, and the law which only gives effect to their intention does not transfer the property in any individual portion (page 145). The rule, I take it, is now too firmly settled to be shaken, that the goods sold must be ascertained, designated, and separated from the stock or quantity with which they are mixed before the property can pass. Until this is done, it remains the property of the vendor, and if destroyed by fire or otherwise, it is the loss of the vendor, and not the loss of the vendee.” See also Pennsylvania Railroad Company v. Hughes, 39 Pa. 521. In Haldeman v. Duncan, 51 Pa. 66, Duncan bought of Haldeman 300 barrels of oil and paid the purchase money. The oil was pointed out to Duncan as being included in a larger quantity of oil at the place of delivery, and request made to select his 300 barrels. Nothing was done by way of separating or selecting the amount purchased. It was held there was no delivery, the sale was not completed and no title passed to Duncan. A flood having swept away all of Haldeman’s oil at the place of delivery, Duncan afterwards demanded delivery of the 300 barrels of oil, which was refused by Haldeman, held that Duncan was entitled to recover the price paid by him. In that case Read, J., repeated the rule as stated by Mr. Justice Rogers in Hutchinson v. Hunter, 7 Pa. 140.
    It is contended, however, that the ancient rule upon the subject has been changed by the more recent decisions in Hutchison v. Commonwealth, 82 Pa. 472, and Brownfield v. Johnson, 128 Pa. 254. In the former case, "the Supreme Court recognized an exception to the rule stated because of the necessities of a certain particular trade and the customs of that trade. That case was one in which the distinction is drawn between a sale by a vendor of a portion of a quantity of goods not separated from the mass and all belonging to the vendor, and the sale of oil belonging to the vendor and represented by receipts, the oil being mixed with that of other parties in a pipe line. It will be observed by the opinion of Paxson, J., that he states the rule which runs through the cases above quoted thus (page 480): “It is a fundamental principle pervading everywhere the doctrine of sales, that if goods be sold by number, weight or measure, the sale is incomplete, and the risk continues with the seller until the specific property be separated and identified. This principle runs through all the cases upon this subject and is too firmly established to be shaken. Nor are we disposed to question its soundness.” The learned justice then proceeds to call attention to the peculiar facts of the case before him (page 482): “The oil which is the subject of this contention was not mixed with any other oil of the prosecutor. It required no separation from any other portion of his property. It was not even in his actual custody or possession. He had the constructive possession by virtue of his accepted orders; when, therefore, he delivered the orders to the defendants, there was nothing remaining for him to do to complete the transaction. He had done all in his power to render the delivery complete. The oil was in the pipes of the Pipe Line Company. For the sake of convenience, it was poured in and mixed with the oil of other producers, and by the usage of trade, each one was entitled to draw out, not the identical oil put in, but oil which is its precise equivalent. In the consideration of the question involved in this case, we cannot close our eyes to the total revolution in the manner of doing business which has been brought about by the discovery of petroleum in this state.”
    It, therefore, seems to me that the fact that the oil in the pipe line, and represented by the orders, was mixed with the oil of other producers .made it impossible, in the nature of things, that there could be any separation in order to complete the title. Aside from this, the court seems to have laid considerable stress upon the fact that by the usage of the trade the transfer of orders was considered as a delivery of oil. No such usage has been shown to exist in the case at bar.
    The other case which is cited as showing a departure from the rule is Brownfield v. Johnson, 128 Pa. 254. In my opinion this case cannot be relied upon for that purpose, for it seems to have been decided largely upon principles affecting the relations of agent and principal.
    The action in this case cannot lie unless the title to the ore was in the plaintiff. Under the authorities quoted, by reason of the fact that the order of August 8 was for a less number of tons than the amount of ore on the dock and in the possession of the defendant company, but belonging to Drake, Bartow & Co., and that no separation was ever had, there never was a delivery, actual or constructive, and the title could not pass. Neither in my judgment was there an automatic shifting of title by the reduction of the quantity of ore to the amount represented by the order, or to a less amount, unless, at the time the contract was made, there was a transfer of title. I fail to see how the subsequent acts of the owner in reducing the mass to a certain quantity could effect such a transfer. As there was no title in the plaintiff, it was well within the power of Drake, Bartow & Co., when they learned that the Saxton Furnace Company was in failing circumstances, to stop delivery of the ore in the possession of the defendant, and for the consequences of this stoppage there can be no recovery against the defendant.

      D. Stuart Robinson and Arthur G. Dickson, for appellant.
    It is submitted that a brief review of the decisions of this court will show that the court below is in error: Winslow, Lanier & Co. v. Leonard, 24 Pa. 14; Hutchinson v. Com., 82 Pa. 472; Gonser v. Smith, 115 Pa. 452; Brownfield v. Johnson, 128 Pa. 254

      C. J. Hepburn and John Hampton Barnes, for appellee.
    The order of August 8, 1903, was given by Drake, Bartow & Co. solely for the accommodation of the Saxton Furnace Company, and for hypothecation by that company for its own benefit. Upon the determination of the pledgee’s rights therein the order lost all potency, and no right or title to it or the ores referred to in it, did or could then revert to the Saxton Furnace Company: Moore v. Baird, 30 Pa. 138; Bower v. Hastings, 36 Pa. 285; Gunnis v. Weigley, 114 Pa. 191; Peale v. Addicks, 174 Pa. 543; Tasker’s Estate, 182 Pa. 122; Hood v. Robbins, 98 Ala. 484 (13 So. Repr. 574); Coghlin v. May, 17 California, 515; Moore v. Maddock, 33 Mo. 575; Messmore v. Meyer, 56 N. J. Law, 31 (27 Atl. Repr. 938); Second Nat. Bank v. Howe, 40 Minn. 390 (42 N. W. Repr. 200); Tufts v. Shepherd, 49 Maine, 312; Berkeley v. Tinsley, 88 Va. 1001 (14 S. E. Repr. 842).
    It is settled beyond all controversy that, in order to maintain an action in trover and conversion, the plaintiff must show both property in himself and the right of possession at the time of the conversion, or of the commencement of the action: Farmers’ Bank v. McKee, 2 Pa. 318, Penna. R. R. Co. v. Hughes, 39 Pa. 521; Wenger v. Barnhart, 55 Pa. 300; Duffield v. Miller, 92 Pa. 286.
    The goods sold must be ascertained, designated and separated from the stock or quantity with which they are mixed before the property can pass: Hutchinson v. Hunter, 7 Pa. 140; Golder v. Ogden, 15 Pa. 528; Penna. R. R. Co. v. Hughes, 39 Pa. 521; Haldeman v. Duncan, 51 Pa. 66; Pringle v. Pringle, 59 Pa. 281; Brock v. McCaffrey, 3 Pa. Superior Ct. 431; Conard v. Penna. R. R. Co., 214 Pa. 98.
    April 24, 1911:
    This rule has been recently approved and applied in other states: Pabst Brewing Co. v. Commonwealth, 32 Ky. Law Repr. 1010 (107 S. W. Repr. 728); Lighthouse v. Third Nat. Bank, 162 N. Y. 336 (56 N. É. Repr. 738); Carpenter v. Glass, 67 Ark. 135 (53 S. W. Repr. 678); Lawry v. Ellis, 85 Maine, 500 (27 Atl. Repr. 518); Wood v. Roach, 52 Ill. App. 388; New England Dressed Meat & Wool Co. v. Standard Worsted Co., 165 Mass. 328 (43 N. E. Repr. 112).
   Per Curiam,

This judgment non obstante veredicto is affirmed for the reasons given by Judge Ferguson in his opinion concurring in its entry.


source: Caselaw Access Project

author: Mr Justice Elkin,

license: Public Domain

text:
    Schmitt’s Appeal.

      Evidence — Production of papers — Practice, C. P. — Mortgage.
    On a scire facias sur mortgage the petition of the plaintiff that one of the defendants should be required to produce for his inspection the bond accompanying the mortgage in suit, and the minute book of a corporation, which was another of the defendants, should be granted, but the order made should be limited to the bond and minute book, and not enlarged so as to include “all papers, bonds, and books involved in the case, or desired by counsel for plaintiff.”
    Argued April 10, 1911.
    Appeal, No. 205, Jan. T., 1911, by Victoria Schmitt, from order of C. P. Luzerne Co., Oct. T., 1907, No. 1,047, directing the production of papers in case of D. L. Rhone, Trustee, v. The Keystone Coal Company, Defendant, Victoria Schmitt, the Traders’ Coal Company and The Hillside Coal and Iron Company, Terre-tenants.
    April 24, 1911:
    ' Before Fell, C. J., Brown, Mestbezat, Potteb, Elkin, Stewabt and Moschziskee, JJ.
    Order modified and affirmed.
    Scire facias sur mortgage.
    Petition for an order to compel the production of papers. Before Gobman, J.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.
    ' Edmund G. Butler, with him John McGahren, for appellant,
    cited: McKenny v. Fawcett, 138 Pa. 344; Reed v. Stevenson, 6 W. N. C. 173; Sollers v. Dunbar, 1 W. N. C. 313; Prestien v. Sarmiento, 4 W. N. C. 89; Simpler’s Petition, 10 Pa. Dist. Rep. 141; Graham v. Cummings, 11 Pa. Dist. Rep. 68; Cottrell v. Warren, 18 Pa. 487.

      J. Q. Creveling, with him D. L. Creveling and Wm. S. McLean, Sr., for appellee,
    cited: Gilpin v. Howell, 5 Pa. 41; Wright v. Crane, 13 S. & R. 447; Arrott v. Pratt, 2 Whart. (Pa.) 566.
   Opinion by

Mr Justice Elkin,

If the order appealed from was interlocutory this would be ground for quashing the appeal. But waiving this question which we do not now pass on, we think the petitioner in the court below was entitled to an inspection of the bond and the minute book of the corporation under the circumstances and the court had the power to order their production. The court and the parties had the right to know the facts shown by these instruments. If they were in possession of appellant she could have produced them and this would have been an end of the matter as far as she was concerned; if they were not in her possession, she could have so answered. The order of the court only required their production if in the possession or custody of the defendants. This order did not work a hardship upon anyone and we can see no reason why it should not be enforced, except that it is too broad in its terms. The petitioner only asked for an inspection of the bond and minute book, while the order includes “all papers, bonds and books involved in the case or desired by counsel for plaintiff.” Clearly the petitioner was not entitled to more than he asked for and the appellant was justified in complaining about the sweeping provisions of the order to produce all papers, bonds and bo,oks desired by counsel. In this respect the order should be modified but when so modified it should be affirmed. The decree of the court below is modified so as to require only the production of the bond and minute book asked for by the petitioner, and when so modified the order making the rule absolute is affirmed. Costs of this appeal to be paid by appellant and in the court below as there ordered.


author: Mr. Justice Elkin,

text:
    Hughes’s Estate.

      Will — Executors and administrators — Annuity.
    1. Where a testator directs his executors to provide out of his estate support for a half-witted stepson, to provide him a home during his life, and at his death a decent burial, and it appears that there is nothing in the will making the executors the arbiters of all matters pertaining to the welfare of the stepson, the orphans’ court may direct that the beneficiary shall be permitted to live with his own brother “so long as he receives the same treatment he did while the testator was living, and no greater expenses incurred than the amount allowed by the court.”
    2. In such a case a decree directing the executors to disburse for the support of the beneficiary $20.00 per month, together with such additional sums as may be necessary to provide him with clothing and medical attendance, is proper, where the estate is ample to take care of all the beneficiaries, including the weak-minded stepson.
    Argued April 11, 1911.
    Appeal, No. 332, Jan. T., 1910, by George H. Hughes and Caroline H. Sponsler, Executors, and Elm a and Bessie Bishop, from decree of O. C. Luzerne Co., No. 288, of 1896, awarding allowance in Estate of James Hughes, deceased.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Petition for allowance.
    Freas, P. J., filed the following .opinion:
    The petitioner, William Houghton, asks that the executors of the estate of James Hughes, deceased, be compelled to carry out the provisions made in his behalf in testator’s will, which in part read as follows:
    “I desire, however, that my executors shall provide out of my estate support for William Houghton. He shall be provided with a home during his fife, and at his death that he shall be decently buried.”
    James Hughes died August 15, 1896, leaving to survive him two children, Caroline A. Hughes (now Sponsler), and George H. Hughes, whom he named as executors of his estate, and two grandchildren, Bessie and Elma Bishop, children of a deceased daughter. There also survived him Cyrus Houghton, William Houghton, Mrs. Jane Houghton Smith and Mrs. Sarah Houghton Eastwood, children of his wife by a former husband.
    The petitioner is now seventy-two years of age. He has always been as he is now, half-witted and unable to shift for himself. He is capable of doing chores around the house, possesses very little will power, and when the opportunity offers, he gets drunk. He is incapable of handling any money. After his mother’s marriage to testator, he made his home with them and was treated as a member of the family. After testator’s death he continued to reside at the homestead with Miss Caroline Hughes for about four years and was treated as he had been while the testator was living. Petitioner lived for about a year with his half-brother, George H. Hughes, at Mount Pocono and sincé then he has lived with his brother, Cyrus Houghton, at Harvey’s Lake, except for short intervals when visiting Mrs. Sponsler or George Hughes. While living at the homes of these executors, all the witnesses unite in saying that he was well treated; he ate at the same table with the family and while at Mrs. Sponsler’s house he occupied her best room. The cost of clothing purchased for him was small but ample for his needs, and the executors made arrangements to supply him with what might be necessary. It is clear that these executors provided for petitioner, while he was with them, support of as good quality as the testator did while .living.
    Some nine years ago the petitioner left the homes of these executors and went to live with .his brother, Cyrus Houghton, where the treatment accorded him was not as good or as considerate as that he had received. No compensation .has been asked by Cyrus during this time until the present petition was presented, when the claim is made for from $40.00 to $50.00 per month for past and future support.
    The executors have stood ready at all times to support the petitioner in their own homes, but he had expressed a preference to reside with his brother Cyrus. His mental condition is such that he is incapable of intelligently deciding for himself and he is susceptible to the influence of those surrounding him.
    The testator designated no definite fund from which the money for petitioner’s support was to be obtained, in fact, he disposes in his will of all his estate to his children and grandchildren (who are given life estates with remainders to their respective children) and then adds the clause of the will above quoted.
    It is held in Steele’s Appeal, 47 Pa. 437, that a comfortable maintenance, measured by the station, habits and tastes of the testator and the beneficiary, was intended; no more and no less; without extravagance either as to place or material, and that the beneficiary was entitled to reside wherever he might reasonably select. Applying this case to our own, we hold that it is the duty of these executors to provide the petitioner with a home of like quality as was furnished him by the testator when living, including clothing suitable to his station, and medical care when necessary, and at his death a decent burial. This trust testator imposed upon his executors and until the trust is abused, no one has the right to relieve them of it, whatever the motive.
    The executors should permit petitioner to reside where he chooses, so long as he receives the same treatment he did while the testator was living and no greater expense is incurred than the amount allowed by the court. We are of the opinion from the testimony, that an allowance of $20.00 per month for his board is sufficient to carry out the intention of the testator, together with such sums as have been heretofore or may hereafter be reasonably necessary for clothing and medical care. This allowance for support ordinarily would be made to the petitioner, but he is incapable of caring for it. He has no committee and none is necessary under the circumstances.
    The executors will, therefore, pay to the persons entitled thereto such sums as are due and owing by the petitioner for his support, clothing and medical care, in accordance with this opinion.
    And now, October 19, 1910, after due consideration, the court order, adjudge and decree as follows:
    1. That there is now due William Houghton, by virtue of the bequest to him contained in the last will and testament of James Hughes, deceased, for his support, the sum of $20.00 per month from the date of testator’s death to the time of filing his petition, to wit, from August 15,1896, to July 14, 1910; and from July 14, 1910, and for his future support he is entitled to the sum of $20.00 monthly, together with all expense heretofore or hereafter to be reasonably incurred for his necessary clothing and medical attendance.
    2. That by reason of the mental infirmity of the said William Houghton, said sums shall be disbursed by the executors of said testator.

      April 24, 1911:

      Error assigned was the decree of the court.

      D. O. Coughlin, with him Clarence D. Coughlin, for appellants.

      John T. Lenahan, with him Edward A. Lynch, for appellee.
   Opinion by

Mr. Justice Elkin,

The facts are stated in the opinion of the learned judge of the orphans’ court and need not be recited here. The only question for this court to consider is whether that court exceeded its authority in entering a decree requiring the executors to pay for the maintenance and support of William Houghton the sum of $20.00 per month, together with such additional sums as may be necessary to provide him with clothing and medical attendance. It is expressly provided in the will of James Hughes, deceased, that: “I desire, however, that my executors shall provide out of my estate support for William Houghton. He shall be provided with a home during his life, and at his death that he shall be decently buried.” The testator left an estate ample to take care of all the beneficiaries named in his will, including the weak-minded petitioner in this case. There is, therefore, no question as to the amount of the monthly allowance being larger than the income from the trust estate would justify. The amount of the monthly allowance is reasonable and we think fully warranted by the terms of the will. It is not entirely clear what position the appellants take, but as we understand the argument of their learned counsel it is contended that the testator committed the care and control of William Houghton to his executors who are to be the arbiters of all matters pertaining to his welfare. We find no such power conferred by the will and think that the jurisdiction and power of the orphans’ court to hear and determine such matters cannot be seriously questioned. The testator imposed upon his executors the duty of providing out of his estate support for this weak-minded person. “He shall be provided with a home during his life” is the language of the will. The will does not say that this home shall be with the executors, or with any particular member of the family, but it must be provided somewhere. William has expressed a desire to make his home with his brother Cyrus where he has resided for several years, and we can see no reason for saying that the orphans’ court committed error in directing that: “The executors should permit petitioner to reside where he chooses, so long as he receives the same treatment he did while the testator was living and no greater expense is incurred than the amount allowed by the court.” All of which was within the reasonable discretion of the court and under the circumstances there was no abuse in its exercise. The court directed the disbursement of the allowance and other expenses to remain in the hands of the executors so that there can be no just complaint on this account. If William becomes dissatisfied with the homes thus provided for him, or if he is not properly treated, these matters can be brought to the attention of the court at any time for correction or for further consideration. What we now decide is that all the matters complained of on this appeal were properly before the orphans’ court for determination and that court acting within its discretionary powers entered a proper. decree. There is no sufficient reason why it should be disturbed here.

Decree affirmed at the cost of appellants.


text:
    Lehigh & Wilkes-Barre Coal Company, Appellant, v. Luzerne County.

      Taxation — Coal lands — Foot-acre rule — Assessment—County taxes.

    Where, in a proceeding to assess the value of coal lands for county taxes, the trial judge finds as facts (a) that the fair market value of an acre of virgin coal in place is $3,000; (b) that the unmined available coal remaining in the properties in question represents eighty per cent of the virgin acreage; and (c) that the average ratio of assessed to fair market value prevailing in the district is eighty per cent, the trial judge commits no error in valuing the lands in question at $1,920 per acre. In such a case the court in banc commits error in disregarding the valuation of the trial judge and adopting the foot-acre rule as a basis of valuation, there being no finding that the conclusions of the trial judge were incorrect or not sustained by the evidence.
    Argued April 11, 1911.
    April 24, 1911:
    Appeal, No. 333, Jan. T., 1910, by plaintiff, from decree of C. P. Luzerne Co., Oct. T., 1907, No. 614, sustaining exceptions to adjudication in case of the Assessment of Lands of Lehigh & Wilkes-Barre Coal Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, J J.
    Reversed.
    Appeal from tax settlement.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree sustaining exceptions to adjudication of Fuller, J.

      A. H. McClintock and G. B. Bedford, with them F. W. Wheaton and A. L. Williams, for appellant.

      S. J. Strauss and W. C. Price, county solicitor, with them E. E. Jones, for appellee.
   Opinion by

Mr. Justice Elkin,

When this case was here before on an appeal by the county, under one of the assignments, it was contended that the learned trial judge erred in refusing to adopt the foot acre rule as the proper method of ascertaining and determining the valuation of the lands in question for the purpose of taxation. This court pointed out in that case that the learned trial judge had committed no error in this respect and suggested several reasons why such a rule in many instances would not be a fair standard of valuation and in most cases would result in disregarding the statutory rule requiring lands to be assessed upon the basis of present market value. We there held that the trial judge who acted for the court was fully justified in refusing to adopt the foot acre rule upon the record then presented. The decree was reversed on other grounds and the record remitted for the purpose of having the ■ case reconsidered along the lines indicated in that opinion. The case has been reconsidered; in the first instance by the trial judge who heard it before, and subsequently by the court in banc. The trial judge, following what he believed to be the proper rule, found as facts: first, what was the fair market value of a virgin acre of coal in place; second, what percentage of unmined and available coal remained in place; and third, the ratio of assessed to market value prevailing in the district. All of which was clearly within the rules applicable to such cases as laid down by this court. He found as facts: (a) that the fair market value of an acre of virgin coal in place was $3,000; (b) that the unmined available coal remaining in the properties in question represented 80 per cent of the virgin acreage; and (c) that the average ratio of assessed to fair market value prevailing in the district was 80 per cent. Upon this basis the valuation of the lands under consideration was fixed at $1,920 per acre. Exceptions were then filed by both sides and finally argued before the court in banc. The court in banc refused to adopt the valuation fixed by the trial judge, saying: “We believe that the value of $125 per foot acre is a fair assessment as the actual •selling value of the appellant’s coal covered by this appeal, and that the value fixed by the county commissioners of $67.00 per foot acre or $2,793 per superficial acre of this land is a conservative valuation, bearing no greater ratio to the true value of this coal in open mines than the ratio maintained between the assessment of the remaining property in the county and its true value.” In other words, the court in banc adopted the foot acre rule as the proper legal basis of determining the assessable value of these lands and held that the valuation for assessment purposes fixed by the county commissioners should be sustained. To sustain this conclusion we must close our eyes to much that has appeared in the record of these cases. The trial judge refused to adopt the foot acre rule in the first instance and when the case was here before this court said in substance that he was justified in so doing and there is nothing in the record here presented to warrant a different conclusion now. The trial judge was fully justified in acting upon the belief that he was not required at the second hearing to reverse his former ruling as to the foot acre rule and proceed to make a valuation upon a basis which had been rejected by the court below and here at the first hearing. Under these circumstances it was error for the court in banc to fix a valuation upon the foot acre basis. The trial judge followed correct legal rules in his final disposition of this case. If he erred in judgment in fixing the valuation of a virgin acre of coal in place, or in determining the percentage of unmined and available coal still remaining, or in ascertaining the ratio of assessed to actual value of other lands in the district, it was within the power of the court in banc to review all of these findings and to fix different amounts and percentages. Nothing of this kind was done and there is no distinct finding that the conclusions of the trial judge in these respects were incorrect or not sustained by the evidence. As we view the record there is nothing therein contained to warrant the conclusion that each superficial acre of coal land belonging to appellant should be valued at $2,730 for the purpose of taxation. Even if the foot acre rule were applied it is difficult to see how such a result could be obtained. The testimony introduced upon the basis of value estimated by foot acres would require a much higher valuation. Indeed a valuation upon this basis would be so high that even ‘the taxing authorities would hesitate to insist upon it. We are forced to the conclusion that the valuation fixed by the county commissioners in the first instance and subsequently approved by the court in banc was arbitrary and made without reference to any basis of determining the fair market value of the lands in question. It should not be overlooked that assessors and all other taxing authorities, including the courts, when on appeal it becomes their duty to hear and determine questions of this character, are required to assess, rate and value every subject of taxation for local purposes according to the actual value thereof and at such rates and prices as the. same would bring at a bona fide sale after due notice. It is so provided in the Acts of May 15,1841, P. L. 393, and July 27,1842, P. L. 441, under the authority of which statutes lands are assessed. In this connection it is important to keep in mind that coal lands are real estate and are assessed under the same law as farms, houses and other real property. The same law governs all valuations and assessments of real estate. There is not one kind of valuation for coal lands, another for farms, and still another for dwellings and business houses. All real estate is valued and assessed under the same general laws. The fact to be determined in each case is the fair value of the tract of land returned for assessment. The statutes require that this valuation shall be fixed at the price the same would bring at a bona fide sale after due notice. We cannot escape the conclusion that the court in banc ignored or disregarded this method as a basis of determining the assessable value of the coal lands covered by this appeal. It may or may not be that the valuation fixed by the court in banc represents the fair assessable value of these coal lands, but we fail to discover the evidence to warrant such a conclusion. There was no new. or additional testimony offered at the second hearing. As to the testimony the record is just the same now as it was when the case was here before. The proven elements of value are the same now as they were then. Under these circumstances we feel constrained to sustain the trial judge who has given much time and attention in taldng testimony and in considering with painstaking care every question raised in this voluminous record. No one has pointed out wherein he committed error, except in refusing to adopt the foot acre rule, and this we decided in the former case he was not required to do. The questions raised by this appeal relate to the triennial assessment of 1907 and it would seem to be in the interest of all parties to have the matters in dispute finally and definitely settled in order that the taxes for the three years covered by that assessment period may be determined and collected. We, therefore, have concluded to affirm the findings and conclusions of the trial judge upon the record here presented.

Decree of the court in banc reversed and the record remitted with instructions to the court below to enter a decree fixing the valuation of the lands in question at the amount found by the trial judge to be their assessable value according to the evidence relied on by him to sustain his findings. Costs of this appeal to be paid by appellee and in the court below as there directed.


author: Mr. Justice Brown,

text:
    Hoopes, Appellant, v. Bradshaw.

      Constitutional law — Judicial and legislative powers — Attorneys at law ■ — Act of May 8,1909, P. L. 47S.

    1. The Act of May 8, 1909, P. L. 475, which provides that admission “to practice as an attorney at law in the Supreme Court of this commonwealth shall of itself, without more, operate as an admission of such attorney as an attorney at law in every other court of this commonwealth, without any other or further action by such other courts or by such attorney,” is not unconstitutional as a legislative interference with judicial power in violation of art. Y, sec. 1, of the constitution.
    2. All that the act of 1909 does is to declare what effect is to be given to a purely judicial act of the Supreme Court in directing the admission of an attorney at law to practice before it.
    Argued Oct. 12, 1910.
    May 1, 1911:
    Appeal, No. 201, Oct. T., 1910, by plaintiff, from judgment of C. P. Beaver Co., June T., 1910, No. 192, for defendant on case tried by the court without a jury in suit of Charles Hoopes.v. Charles W. Bradshaw, Prothonotary of Beaver County.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Petition for mandamus. Before Holt, P. J.
    The case was tried by the court without a jury under the Act of April 22, 1874, P. L. 109.
    The 'Case turned upon the constitutionality of the Act of May 8, 1909, P. L. 475.

      Error assigned was in entering judgment for defendant and refusing mandamus.

      William B. Cuthbertson, with him Agnew Hice, Robert Ritchie, Frank E. Reader and George A. Baldwin, for appellant.

      Frank H. Laird for appellee.
    The admission of an attorney is a judicial act: Com. ex rel. v. Judges of Common Pleas of Cumberland County, 1 S. & R. 187; Com. ex rel. v. Judges of the District Court for the City and County of Phila., 5 W. & S. 272; Greenough v. Greenough, 11 Pa. 489; Ervine’s App., 16 Pa. 256; Com. v. Aul, 18 Pa. Dist. Rep. 1040.
   Opinion by

Mr. Justice Brown,

The appellant, a member of the bar of the Allegheny county courts and of this court, in good standing, presented his praecipe to the prothonotary of the court of common pleas of the court below for his appearance for the defendant in a certain proceeding therein pending. With his praecipe he exhibited a certificate of his admission on October 5, 1905, as a practitioner before this court. The prothonotary having refused to accept the praecipe and to recognize the appellant as a member of the bar of Beaver county, he applied to the court below for a mandamus directing that officer to do so. He based his application for the writ upon the Act of May 8,1909, P. L. 475, which provides that admission “to practice as an attorney at law in the Supreme Court of this commonwealth shall of itself, without more, operate as an admission of such attorney as an attorney at law in every other court of this commonwealth, without any other or further action by such other courts or by such attorney.” The writ was denied because in the judgment of the court below the act of 1909 was an unconstitutional interference by the legislature with a purely judicial function.

Nothing is clearer in the consitution than the separation of the legislative and judicial branches of our state government. Neither possesses the powers of the other, and any power inherent in the one cannot be exercised by the other. Judicial powers and functions are to be exercised by the judiciary alone, and a century ago in Commonwealth ex rel. Brackenridge v. Judges of Common Pleas, 1 S. & R. 187, it was held that the admission of an attorney to practice before a court is a judicial act. This has never been doubted or questioned since, and, if the act of 1909 is an encroachment upon the judiciary, it must be regarded as a vain attempt by the legislature to exercise a power which it does not possess. The learned court below, being of opinion from what was said in Splane’s Petition, 123 Pa. 527, that the act was such an encroachment, pronounced it null and void.

What this court had before it in Splane’s Petition was the Act of May 19, 1887, P. L. 131, which provided that any attorney at law duly admitted to practice in any court of common pleas and in the Supreme Court of this commonwealth should be admitted to practice in any other court of the commonwealth upon motion simply, by exhibiting to the court a certificate of admission to the Supreme Court and filing a certificate of the presiding judge of the county or district from which he came, setting forth that he was of reputable professional standing and of unobjectionable character. The question of the constitutionality of the act was not raised, and the mandamus for which Splane applied was refused because he had not complied with its provisions. The question before the court, as stated in the opinion denying the writ, was: “Whether the petitioner, after having twice presented himself before the duly constituted board of examiners, and having been twice rejected by them as not properly qualified to practice law, can, by procuring his admission in another county, aided by the act of assembly, compel his admission in the court where he has been rejected for incompetency.” Upon two occasions Splane had been before the board of examiners of the county, and in each instance had been rejected as not being properly qualified to practice as an attorney. Subsequently he was admitted to practice in the court of common pleas of Cambria county, but it did not appear that he had ever resided or practiced in that county, or that he was even a citizen of the state. It was further discovered that the order admitting him to practice in this court had been improvidently made. The reason for denying him the writ is thus given in the opinion of the court: “He has not complied with it (act of 1887), for the reason that it requires a certificate of the 'presiding judge’ of the county from whence he came, setting forth that he is of reputable professional standing, etc. This plainly means the certificate of the judge of the county where he has lived and practiced law, who is presumed to know his qualifications in that regard, and who can truly and intelligently certify to his good character. A lawyer may chance to be a member of the bar of half the counties in the state; he may be admitted in a county other than the one in which he resides, for the mere purpose of trying a single ease. It is the merest evasion of the act to present the certificate of the judge of a district where the petitioner has not last lived and practiced, and an admission to the bar obtained by such means might well be vacated by the judge who should inadvertently grant it, as a fraud upon the court.” After refusing the writ, for the reason stated, Chief Justice Paxson, in digressing, said in characteristically vigorous language, that the act of 1887 was an encroachment upon the judiciary department of the government; but as that question had not been raised and counsel had not been heard upon it, what was said of the unconstitutionality of the act is to be regarded as obiter dictum, and we now pass upon the question of the constitutionality of the act of 1909 as a new one.

Is the act of 1909 an attempt by the legislature to usurp judicial power, or does it in any manner interfere with the exercise of judicial functions? In its first words it recognizes the admission of an attorney to practice in the highest court of the commonwealth as a judicial act, and does not attempt to interfere with that court’s power in the performance of that act. The question then resolves itself into this, May the legislature say what effect is to be given to an order or decree of this court in the matter of admitting attorneys to practice before it?

By sec. 3, art. Y, of the constitution, the jurisdiction of this court extends over the entire commonwealth, and, by appeal or certiorari the proceedings of every district court of record, as well as those of the Superior Court, can be here reviewed. By the act of May 22, 1722, its powers are those possessed by "the court of King’s Bench” — the supreme court of common law in England, — "common pleas and exchequer, at Westminster, or any of them.” It was not, therefore, an unwarranted assumption on the part of the legislature that qualifications which fit an attorney at law to practice before the supreme court of the state ought to fit him to do so in every other court within it; but what may have induced the legislature to act is not important. The sole question is, Did it have the power to act as it did? Having first distinctly recognized the performance of a judicial act by this court, what follows is but a legislative enactment as to the force and effect to be given to it by the lower courts. For nearly seventy-five years similar legislation has been recognized, without a suggestion from anyone of its being an encroachment upon the powers and functions of the judiciary. The adoption of rules of court regulating practice therein is certainly as much a judicial function, with which the legislature may not interfere as is the admission of attorneys, and yet, from the time of the passage of the act of June 16, 1836, requiring all the courts of common pleas in the commonwealth, sitting as courts of equity, to be bound by the rules of practice as adopted by this court, no one has ever heard that such legislation was an encroachment upon the judiciary. And it was not, for it merely declared what effect shall be given to the rules or orders of this court, which it has the inherent power to make independently of the legislative branch of the government. This is practically the situation before us. All that the act of 1909 does is to declare what effect is to be given to a purely judicial act of this court in directing the admission of an attorney at law to practice before it. The act neither encroaches upon nor interferes with a power exercisable by the judiciary alone, but declares that when such power has been exercised by the highest judiciary of the state, in passing upon the qualifications of an applicant to practice as an attorney before it, its act in admitting him to its bar is to be duly recognized by all the other courts over whose proceedings it has constant supervision. But while this is so, there are certain functions of the lower courts with which the act of 1909 does not interfere. The honest disposition and good moral character possessed by one at the time of his admission to the bar of this court, may be subsequently lost, and, if so, the certificate of his admission here will not be a voucher for his integrity to any court before which he may seek to practice under the act of 1909. The loss of his integrity may not have been inquired into here, but, if lost, he has no more right under the act of 1909 to seek membership in a county bar than he has to ask that his name shall continue upon the roll of practicing attorneys before this court; and any court may, therefore, refuse to permit him to practice before it upon being duly informed that he no longer possesses “an honest disposition,” declared by the act of April 14, 1834, to be one of the two requisites for admission to the bar of every court of record. Another function of the court below, not interfered with by the act, and which it may be well to notice, is its power to adopt rules relating to the service of notices or papers upon nonresident practitioners. When the act of 1909 is invoked by one who does not intend to reside or establish an office in the county to whose courts he would be admitted, he is not to expect practitioners residing in the county, or having established offices within it, to be subjected to annoyance and inconvenience in the service of rules or notices upon him, and the adoption of a rule as to this continues to be within the power of the court. For the reasons stated we cannot regard the act of 1909 as an unconstitutional interference with the exercise of a judicial function.

The judgment is, therefore, reversed and the record remitted with direction that the mandamus issue as prayed for.


author: Mr. Justice Moschzisker,

text:
    Atlantic Refining Company, Appellant, v. Sylvester.

      Vendor and vendee — Sale of land — Incumbrances—Unopened streets— Contract — Alterations.
    1. An ordained street, although unopened, which the city authorities have declined to remove from the municipal plan, is an incumbrance within the meaning of an agreement to sell land clear of incumbrances.
    2. Articles for the sale of land provided that the title should be clear of incumbrances. The agreement was signed by an agent of an undisclosed purchaser “under and subject to the approval of his action by his principal.” After the agent had signed the .seller inserted the words “except as to open or unopened streets.” The agent in an action against himself by the seller to recover the purchase price of the land was called by the plaintiff as a witness and testified that he had never agreed to the exception in regard to the streets; that his principal had always said that the property would be worthless to him with the threat of the streets hanging over it, and had insisted that it must be delivered free of such incumbrances; and that the plaintiff had been so informed. Held, that the trial court was not in error in directing a verdict for the defendant.
    Argued Jan. 18, 1911.
    Appeal, No. 155, Jan. T., 1910, by plaintiff from judgment of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 2,018, on verdict for defendant in case of The Atlantic Refining Company v. Frederick Sylvester.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Assumpsit on written contract to recover price of real estate.
    The contract sued on is outlined in the opinion of the Supreme Court; after the signature of the defendant appears the word "agent,” but the name of his principal is not disclosed therein. The defendant was the only witness called by the plaintiff. In addition to his testimony referred to in the .opinion, at the request of the plaintiff, he produced the correspondence concerning the transaction at issue, consisting of a series of letters and telegrams between the witness, the plaintiff, and its attorneys; also between the witness and John Baker, Jr., the man whom he represented, and Dongel Stoney, an attorney in fact for Baker. The witness testified that he had drawn and signed the contract and sent it to the plaintiff, that when returned to him it contained the interlineations referred to in the opinion; that he then told the plaintiff, "I will have to notify my principal of those changes.” The correspondence shows that on October 8 the defendant telegraphed the plaintiff that the purchase had been approved by his principal, but that on October 10 he notified the plaintiff by letter that on the eighth he had received a telegram from his principal to the effect that the title must be “clear and unrestricted,” and that he had written to his principal “at large on the subject advising him of the details of the transaction.” There was no evidence to show any change of position to the prejudice of the plaintiff between the time of the first and second notification from the defendant. On October 21, the defendant received a letter from Mr. Stoney, inclosing an approval of the agreement signed by him as attorney in fact for Mr. Baker, stating that Mr. Baker was absent and that he, Stoney, had signed the formal approval so that it might be returned to Philadelphia within the fourteen days but, “Should Mr. Baker have any objection to the document, as I have executed it, he will wire you, in which case you will, of course, follow his instructions.” On October 17, Baker did wire to the defendant: “Purchase agreement subject to opened or unopened streets. Cannot use the property with streets through it. Satisfy yourself no streets before delivering approval.” The defendant, “thereupon took up with counsel for the- (plaintiff) company .... the question of trying to have those streets removed by applying to council in Chester for an ordinance to that effect;” but the efforts to have the streets removed were unsuccessful and the approval of the agreement was never delivered to the plaintiff. The correspondence shows that, pending the efforts to have the property relieved from the proposed streets, the defendant asked for and secured from the attorneys for the plaintiff the necessary papers and information to prepare for a settlement, and that he sent to such attorneys drafts of proposed resolutions to be passed by the plaintiff corporation, saying that he had no reason to doubt the intention of his principal to deliver his written approval of the agreement. The witness subsequently testified that he, had written this because he had great confidence in his ability to convince Mr. Baker that, “the possibility of the actual opening of the plotted streets was very remote and not probable.”

      May 1, 1911:

      Errors assigned were (1) in instructing the jury to find for the defendant; (2-4) in refusing to admit in evidence certain letters and telegrams from Baker to the defendant, instructing the latter to make a deposit on the purchase when proper resolutions were passed and delivered by the plaintiff company, which communications contained no reference to the objection on account of the proposed streets; (5, 6) in refusing to allow certain questions put to the defendant concerning the compensation which he was to receive, or had received, from his principal for services rendered in the transaction.

      Reynold D. Brown, with him Malcolm Lloyd, Jr., for appellant.

      John G. Johnson, with him James Wilson Bayard, for appellee.
   Opinion by

Mr. Justice Moschzisker,

The Atlantic Refining Company brought this action against Frederick Sylvester to recover the purchase price of a piece of real estate. The contract sued upon is dated October 7, 1908; it is provided therein that the plaintiff agrees to sell and the defendant to purchase a certain tract of land in the borough of South Chester; the title to be “clear of encumbrance (except as to opened or unopened streets), and free from restrictions;” the deed to be executed “to the said Frederick Sylvester, agent, or to his principal,” and “settlement to be made within sixty days.” It is further provided: “This agreement is made and entered into by the said Frederick Sylvester, agent, under and subject to the approval of his action by his principal (within fourteen days from this date) signified by his written indorsement hereon, and the said Frederick Sylvester shall not be held responsible under this agreement in case of the refusal of his principal to affirm his action.”

The words within the parentheses did not appear in the contract as originally drawn and signed by the defendant; they were inserted by the plaintiff. This was not denied; but the plaintiff contended that the contract as altered was afterwards impliedly affirmed by the defendant and expressly approved within the fourteen days by his principal, Mr. Baker, acting through an attorney in fact, Mr. Stoney; or, at the least, that the actions of the defendant and his principal in relation to the contract were sufficient from which to find a waiver of the provision as to the incumbrances, so far as the streets were concerned. The defendant denied both of these contentions and asserted that he had never agreed to the exception in regard to the streets; that his principal had always said that the property would be worthless to him with the threat of the streets hanging over it, and had insisted that it must be delivered free of such incumbrance; and that the plaintiff had been so informed. The defendant likewise denied any individual liability under the contract. The learned trial judge gave binding instructions in his favor, which were sustained by the court below, and the plaintiff has appealed.

The suit was upon a written contract in which the plaintiff had made material alterations after its execution by the defendant. The latter never expressly assented to the changes or affirmed the contract as modified; and the question of such modifications does not appear to have gone beyond the negotiation stage. Taking the document as drawn before the interlineations, we have a written contract containing an express provision that the property must be clear of incumbrance, together with the fact that there were then four duly ordained streets liable to be opened over the tract of land in question, and the further fact that the authorities, on November 19, 1908, had “absolutely declined” to remove these streets from the municipal plan. Under these circumstances there could be no recovery on the contract. “The ordained street, though unopened, was an encumbrance upon the lot relieving the appellee from his agreement to purchase: ” Graybill v. Ruhl, 225 Pa. 417; Evans v. Taylor, 177 Pa. 286.

But the question remains, Was there error in refusing the additional evidence proffered by the plaintiff? Had it all been admitted, yet in view of the positive assertion by the defendant, a witness for the plaintiff, that he had never assented to the interlineations, and the absolute orders by Mr. Baker that the title must be “clear and unrestricted” and that the defendant before delivering his principal’s approval was to satisfy himself of the land’s being clear of the proposed streets, there would not have been sufficient proofs to justify the.inference, or to sustain a finding, that the defendant or his principal had either waived any part of the requirement in respect to incumbrances or affirmed the contract as modified. Particularly is this so, when we consider that the approval of Mr. Baker was never delivered, and that the so-called approval by his attorney in fact was an especially restricted one, not to be delivered to the plaintiff unless assented to by Mr. Baker, which assent appears to have been withheld because of the presence of the streets. All of the correspondence admitted and offered was consistent with the fact that the defendant’s principal always insisted upon the property’s being free of the incumbrance of these streets; for, after Mr. Baker’s prompt and repeated orders to that effect, and their communication to the plaintiff, it was not necessary to reiterate his stand in each subsequent letter.

Since it is impossible to deliver a title clear of the plotted streets, the plaintiff is out of court; hence it would serve no useful purpose to discuss or determine the other questions so ably presented by counsel.

We find no reversible error upon the record; the assignments are all dismissed, and the judgment is affirmed.


text:
    Gehringer v. Lehigh County, Appellant.

      Negligence — Bridges—County bridge — Change in character of travel— Repairs — Inspection—Latent defects.

    1. A county is liable for damages suffered through a failure on the part of the floor system of one of its bridges, while there was being taken across it a load which, in respect of weight and otherwise, was different in character from the ordinary and usual travel over the highway in the locality of the bridge at the time it was built, but not different from such travel at the time of the accident, if the county commissioners, although properly maintaining the bridge in accordance with its original design and plan, made no effort to strengthen it for some length of time after much heavier vehicles had come into common use.
    2. It is not reversible error for the court to affirm a point to the effect that it is the duty of the commissioners, upon being informed that a county bridge is out of repair, to examine thoroughly and to make such repairs, as would render it perfectly safe for ordinary travel, or to close it up to prevent the public from using it. The use of the phrase “perfectly safe” states the law somewhat strongly against the county, but it is not without authority.
    3. In an action against a county to recover damages for injuries sustained by the breaking of the floor of a county bridge where there is evidence that the county commissioners had inspected the bridge, the question of the sufficiency of the inspection is for the jury to decide upon the evidence, guided by the impression which the witnesses made upon them as to the sincerity and thoroughness of the tests described.
    4. Where the evidence shows that the inspection of the commissioners was most casual, there is no error in charging that, “the omission to search for and discover latent defects resulting from the decay of material used in the bridge is evidence of negligence properly chargeable to those whose duty it is to repair, ” and “when a bridge has served for the time timbers are expected to last, and it may reasonably be expected that decay has set in, it is negligence to omit all proper precautions to ascertain its condition. ”

      5. The rule that a county acting as a public agency is not liable for the negligence of its officers does not apply to the obligation of county commissioners to repair and properly maintain county bridges, inasmuch as such obligation is a positive statutory duty upon the commissioners, the fulfillment of which the public have a right to demand.
    Argued Jan. 31, 1911.
    Appeal, No. 252, Jan T., 1910, by defendant, from judgment of C. P. Lehigb Co., Sept. T., 1909, No. 34, on verdict for plaintiff in case of Annie E. Gehringer v. Lehigh County.
    Before Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass .to recover damages for death of plaintiff's husband. Before Trexler, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Errors assigned were various instructions set forth in the opinion of the Supreme Court.

      Reuben J. Butz, with him Claude T. Reno, county solicitor, for appellant.-
    There is no liability for wrongful exercise of discretionary powers: Lehigh County v. Hoffort, 116 Pa. 119; Trescott v. Waterloo, 26 Fed. Repr. 592; Carr v. Northern Liberties, 35 Pa. 324; Fair v. Philadelphia, 88 Pa. 309; Bear v. Allentown, 148 Pa. 80; Cooper v. Scranton, 21 Pa. Superior Ct. 17; Fairlawn Coal Co. v. Scranton, 148 Pa. 231; Collins v. Philadelphia, 93 Pa. 272; Mills v. Brooklyn, 32 N. Y. 489; Wilson v. The Mayor, etc., of New York, 1 Denio, 595; Urquhart v. Ogdensburg, 91 N. Y. 67; Lansing v. Toolan, 37 Mich. 152; Hines v. Lockport, 50 N. Y. 236.
    In Pennsylvania there is no common-law duty of counties to repair highways, or bridges or sidewalks; such duty and consequent liability must be imposed by statute, or be held not to exist: Williamsport v. Lycoming County, 34 Pa. Superior Ct. 221.
    The identical question under consideration has been before the courts of last resort of the states of Indiana and Michigan, and their decisions are at least of persuasive force: Board of Com’rs of Vermillion County v. Chipps, 131 Ind. 56 (29 N. E. Repr. 1066); Fulton Iron & Engine Works v. Kimball Twp., 52 Mich. 146; Stebbins v. Keene Twp., 60 Mich. 214; Woodbury v. Owosso, 64 Mich. 239.
    May 1, 1911:
    The measure of care and prudence demanded of county commissioners in the care and supervision of county bridges is the care and prudence exercised by ordinarily prudent men in their own affairs, and where the defect in a lawful structure is latent the officers must have actual notice: Childs v. Crawford County, 176 Pa. 139; Ford v. Roulet Twp. 9 Pa. Superior Ct. 643; Whitmire v. Muncy Creek Twp., 17 Pa. Superior Ct. 399; Hardin County Commissioners v. Coffman, 48 L. R. A. 455.

      Thos. F. Diefenderfer, with him Francis G. Lewis, for appellee.
    The bridge was not properly maintained: Smith v. Muncy Creek Twp., 206 Pa. 7; Clulow v. McClelland, 151 Pa. 583; Berks County v. Reading City Pass. Ry. Co., 167 Pa. 102; Rapho v. Moore, 68 Pa. 404; Rigon v. Schuylkill County, 103 Pa. 182; Humphreys v. Armstrong County, 56 Pa. 204.
   Opinion by

Mr. Justice Moschzisker,

The verdict was for the plaintiff and the defendant has appealed. The principal question involved is stated by appellant as follows: “Is a county liable for damages suffered through a failure of the part of the floor system of one of its bridges while there was being taken across it a load which, in respect of weight and otherwise, was different in character from the ordinary and usual travel over the highway in the locality of the bridge at the time it was built, but not different from such travel at the time of the accident, if the county commissioners properly maintained the bridge in accordance with its original design and plan of construction?”

The county bridge in question was erected prior to the year 1840 where a public road, which has since become a main throughfare, crossed a stream, about a mile and a half beyond what is now the city of Allentown. At that time Allentown was a mere village with rural surroundings; it had gradually grown and extended, however, until at the time of the accident its built up portions were within three blocks of the southern end of the bridge, with a scattering of houses and a number of industries still nearer. The territory on the other side of the bridge had likewise seen a large increase in population; towns and villages had come into existence; car wheel, cement, hardware and other manufactories had been erected and actively operated for some years prior to the accident. The bridge was 118 feet long by 19 feet wide and consisted of a wooden superstructure resting on stone pillars and abutments. It contained ten spans, each 11 feet in length, and 5x7 hemlock stringers, 11 feet in length laid 33 inches apart, supported the planks of the floor. The structure had not been rebuilt since its erection, the floor system remained of the original type, and the stringers in the immediate part of the bridge which broke down and caused the accident had never been replaced or repaired.

On January 26, 1909, Chester Gehringer, the husband of the plaintiff, and two other men, were riding across the bridge on a motor truck containing a load of flour, the truck and load together weighing about 14,000 pounds; when they reached the third panel from the northern end that part of the structure suddenly gave way and precipitated the truck into the stream below, causing the plaintiff’s husband and one of his companions to be drowned. The accident was due to the giving way of the stringers. Upon investigation it was found that one of the broken stringers in the panel through which the motor truck fell contained dry rot, which was not visible from the outside.

The defendant’s testimony was to the effect that early in August, 1906, workmen employed in making repairs to the bridge had removed certain of the planks and tested the stringers, by pounding or jabbing them with a crowbar, a hatchet, or with an eight pound iron hammer, and that the commissioners had then substituted new stringers for all those which they deemed unsound; that in 1908, about five months before the accident, repairs were made by a carpenter and his three sons, who removed all of the planks upon the bridge excepting those in the two panels on the southern end, tested the stringers in a like manner, and replaced those which seemed to be unsound.

The defendant contended that, if at the time the bridge was built it was sufficiently strong to care for the then ordinary and usual travel over the highways in that locality, and if the county had maintained the structure in good condition according to its original carrying capacity and construction, the commissioners had performed their full duty; further, that, if the weight of the motor truck and its contents was greater than the load usually and ordinarily transported over the highways in the vicinity at the time the bridge was built, though not greater than the usual and ordinary loads at the time of the accident, the failure of the commissioners to strengthen the bridge in order to take care of such greater loads would not be negligence. But the trial judge refused so to charge. On the contrary he instructed the jury that the legislature had recognized the right to operate motor vehicles on the roads of the state, and that when such vehicles, of the description and weight in ordinary use in a section of the country, have been running for several years, it becomes the duty of the county authorities to strengthen the bridges so as to withstand the increased strain and provide against injuries from such ordinary use of the highways. It was left to the jury to say what was the ordinary use of the roads in the vicinity of the bridge in this case, the court adding: “Had the carrying of such loads as this auto had on that day become ordinary and usual? If it had then the duty of the commissioners was to provide a bridge sufficient to carry it. When I say provide a bridge, I do not mean a new bridge. The commissioners are not charged with the rebuilding of bridges . . . .; all that they are charged with is the maintenance of the bridge and all that they could be charged with here is that if the use of the auto trucks carrying the weight this one did, and with the formation of the body this one had, I mean in regard to the amount of the pressure exerted in any particular place, become common, then it would be their duty to strengthen the bridge to meet the changed condition of travel, not to reconstruct the bridge, but merely to strengthen it so as to accommodate that travel.” And, “If you find these'auto trucks of the size that this auto .truck was were common and ordinary means of conveyance in the neighborhood of this bridge and over the roads leading to and from it, then your verdict should be in favor of the plaintiff. If you find they were not so, then you should find in favor of the defendant.” These instructions and the refusal to charge as requested by the defendant constitute the specifications of error 1-3 and 9-13 inclusive, and raise the question involved stated at the head of this opinion. We shall dispose of all of these assignments in considering the points covered in that question.

In the opinion refusing a new trial the learned president judge of the court below says: “The trial . . . . established the fact that auto trucks of the weight and general character of the one in which the decedent was at the time of the accident were in general use in the locality of the bridge .... An open bridge .... bears the imperative duty on the authorities charged with its maintenance to keep it in such a condition that the public may safely use it. If this involves a strengthening of the floor, then it becomes the duty .... to strengthen it. They (the commissioners) may not build a substantially new bridge, but .... they may make repairs and strengthen an old structure so long as the general character of the bridge remains the same. In some states the courts have held that the authorities are only required to maintain bridges of the same style and character of the original bridge,. and adequate for the traffic then existing. To this view I cannot agree. To hold that the county commissioners may, upon an inspection of a bridge .... remove the floor timbers which were suitable for the demands of travel sixty years ago, but totally inadequate for present public demands, and replace them with timbers of the same size, and then invite an unsuspecting public to use it, seems to be entirely wrong. When the commissioners in the present case repaired the floor structure of the bridge, they might have guarded against the happening of this regrettable accident .... by inserting additional stringers and thus strengthening the bridge so as to admit of its supporting loads of the weight of the loaded auto truck.” The excerpt just quoted and the instructions before summarized contain a substantially correct statement of the law governing the question under consideration.

“In this state the duty (to repair) is statutory, and therefore we must look to the statute for its nature and extent: ” Rapho v. Moore, 68 Pa. 404. The Act of June 13, 1836, P. L. 551, required public roads, including bridges, to be “constantly kept in repair.” The Act of April 13, 1843, P. L. 221, provides: “It shall be the duty of the county commissioners .... to repair all bridges erected by the county, and to pay the expenses of such repairs out of the county treasury.” The Act of March 30, 1905, P. L. 81, makes a precisely similar provision as to “All county bridges heretofore erected or to be hereafter erected.” Although -counties are not by these statutes expressly made liable for injuries resulting from neglect properly to maintain their bridges, yet we have uniformly and long held that a mandate to repair carries with it a responsibility, which, if neglected, may give rise to such a liability; and the thought running through our cases is that these statutes fix an imperative duty upon the counties properly to repair a bridge, which includes the obligation to maintain it, “so as to protect against injuries by a reasonable, proper and probable use thereof in view of the surrounding circumstances, such as the extent, kind and nature of the travel, and business on the road of which it forms a part:” McCormick v. Washington Township, 112 Pa. 185.

In Shadier v. Blair County, 136 Pa. 488, where a heavy traction engine broke through a county bridge, in entering judgment for the plaintiff, we said, per Mercur, C. J., “The duty of the commissioners was .... performed ■if the bridge was in a reasonably safe condition for travel, in the ordinary mode used in the neighborhood. . . . One of the duties of the county commissioners . . . . was to keep the county bridges in good repair. . . . For more than forty years they recognized that duty and undertook to perform it. It was not until after Shadier was killed in consequense of their neglect .... that they attempted to deny the existence of the obligation.” In Clulow v. McClelland, 151 Pa. 583, a traction steam threshing engine went through a township bridge; we affirmed a nonsuit entered because of the contributory negligence of the plaintiff, but restated the law as ruled in McCormick v. Washington Township, supra, and further said, per Paxson, C. J.: “The legislature has recognized the right to take steam machinery over the public highways .... When the use of steam engines for threshing or other lawful purposes becomes so general that their transportation over the roads amounts to an ordinary use of them, it may be necessary to strengthen the bridges so as to withstand the increased strain.” In Coulter v. Pine Township, 164 Pa. 543, in an action to recover damages for death caused by a traction engine’s breaking through a bridge, we held, per Mitchell, J., that it was proper to leave to the jury the question whether or not such engines had become a usual and ordinary mode of travel when the bridge was reconstructed about five years before the accident; and we there referred to the warning contained in the case last cited, adding, “How far, and under what circumstances it may becojne the duty to strengthen .... bridges which are otherwise safe and in good repair, we need not discuss until the question is really before us.” In Berks County v. Reading City Pass. Ry. Co., 167 Pa. 102, p. 118, we said, per Williams, J., in referring to a county bridge: “The county thus becomes liable for its proper construction and its safety as a part of the highways. ... If the structure is insufficient to support the increased and lawfully authorized use of the highway of which it is a part, it is the duty of the county commissioners to say so, and to determine what ought to be done to strengthen and prepare the structure to meet the demands that will be made upon it. They may also within reasonable limits regulate the manner of its use, and provide for its repair.” Finally, in Smith v. Muncy Creek Township, 206 Pa. 7, a man was injured by a bridge’s giving way while riding across it on a traction engine, and the appellant contended that the authorities were “not bound to keep a county bridge in repair for the safe passage of heavy traction engines.” In sustaining a judgment for the plaintiff, we said, per Fell, J.: “They (the commissioners) had knowledge that the use of traction engines .... had become general and that their transportation had been for many years an ordinary use of the roads of‘the township. They should have provided against dangers from this ordinary and reasonable use of the bridge.” And in another case growing out of the same accident, Whitmire v. Muncy Creek Township, 17 Pa. Superior Ct. 399, Rice, P. J., said: “According to the testimony, steam threshers of the same description were in common use in that part of the country and had been so for several years .... The court could not have declared as a matter of law that the moving of traction engines for steam threshing and other purposes was at that time and in that neighborhood an extraordinary or unlawful use of the highway. Whether, in view of this ccpmon use of the highways and bridges; the supervisors were negligent in not replacing the decayed timbers” was a question “which the plaintiff was entitled 'to have submitted to the jury.” While it is true, as contended by the appellant, that each of these cases may in some degree be distinguished on its facts from the one at bar, and that none of them can be said to be a ruling authority in the present case, yet the law as laid down in this long line of decisions fully vindicates the ruling of the court below to the effect that the obligation to repair included the duty to maintain the bridge at a sufficient strength to accommodate the ordinary travel in the neighborhood at the time of the accident.

Lehigh County v. Hoffort, 116 Pa. 119, relied upon by the appellant, does not in any sense rule the present case. There it was “not pretended that the injuries complained of resulted from any want of care or defect in the bridge;” and in reading the opinion it must be kept in mind that the neglect alleged in that case was not the failure to perform an absolute duty, but simply the non-exercise of a discretionary power. The appellant recognizes the existence of such a distinction, yet strongly urges that the principle of that case should be applied here, contending that the failure properly to strengthen the bridge should not be viewed as more than an omission on the part of the commissioners to exercise judgment, or, at the most, the exercise of bad judgment. It argues that the question of the time for, and the manner of, strengthening the structure would, of necessity, be discretionary with the county officials, and that a jury cannot be permitted to substitute their judgment for that of the properly constituted authorities. In matters of this kind there is always a transition period. But here the evidence was sufficient to satisfy the mind of the trial judge that such period had passed some time before the date of the accident, and it was adequate to sustain the conclusion that the use of the roads by vehicles of the character of the motor truck in question had become so usual in the vicinity that the commissioners must have had knowledge of that fact for a sufficient length of time to have acted thereon and made the necessary repairs properly to strengthen the bridge. Under these circumstances the case was for the jury.

In a sense, exercise of judgment is required in making any repairs, but it is generally held that the duty of maintaining a public structure so as to prevent danger, is ministerial in its nature, and that neglect properly to perform such an obligation will give rise to an action for damages. How far this rule will apply in a case where county commissioners have made honest and substantial efforts to keep a bridge up to a degree of strength adequate to the ordinary demands thereon, but where their efforts have not led to satisfactory results, is a question we are not now called upon to decide; for in the present instance there were no such efforts or exercise of judgment in that regard, the commissioners standing squarely upon the legal ground that there was no obligation on them to increase the carrying capacity of the bridge beyond the strength contemplated in its original construction. Though this position apparently finds support in several jurisdictions, it is not in accord with the Pennsylvania doctrine upon the subject. We conclude that the learned trial judge fell into no error in following the trend of our cases, and the assignments before enumerated are all overruled.

The seventh specification of error relates to the affirmance of a point to the effect that it was the duty of the commissioners, upon being informed that a county bridge was out of repair, to examine it thoroughly, and to make such repairs as would render it perfectly safe for ordinary travel, or to close it up to prevent the public from using it. The use of the phrase "perfectly safe” states the law somewhat strongly for the plaintiff, but we cannot say that it was without authority. In Humphreys v. Armstrong County, 56 Pa. 204, we said: "It was the duty of the commissioners to have examined the bridge thoroughly .... and to make a thorough repair so as to render the bridge perfectly safe, or to close it up so as to prevent the public using a dangerous part of the highway.” It is to be observed that the instruction complained of relates to the duty of the commissioners upon "being informed” that a bridge is out of repair. We cannot conceive, as contended by the appellant, that the jury could have understood the point to mean that it was the imperative duty of the commissioners to find every existing defect, latent or otherwise, that might possibly detract from the perfect safety of the bridge; particularly, when we consider that the trial judge repeatedly told the jury that the duties of the commissioners were to be measured by the “standard of duty or caution of the ordinarily prudent man,” and that the commissioners were only required to keep the bridge in condition for common and ordinary travel. The phrase “reasonably safe” would have been more appropriate; but, as we before said, there was authority for the expression used, and we are satisfied that the defendant could have suffered no harm therefrom. The assignment is overruled.

The fourth specification complains of the refusal of a long point for charge requested by the defendant covering the duty of inspection and repairs to the bridge, and ending with the direction that if the facts therein set forth were believed, there could be no recovery in the case “even if dry rot existed in one or more of the stringers which were in the panel through which the auto broke.” The answer was: ‘ Refused. As to whether the inspection was sufficient. Not read to jury.” In this we see no error. The question of the sufficiency of the inspections was for the jury to decide upon the evidence, guided by the impression which the witnesses made upon them as to the sincerity and thoroughness of the tests described. The real question was whether the tests used were such as the ordinarily prudent man would have adopted, and the point as drawn practically took that matter from the jury; ” whereas in the case cited by the appellant, McCormick v. Washington Township, 112 Pa. 185, it was submitted. The assignment is overrruled.

The sixth and eighth specifications complained of the affirmance of two requests for charge to the effect that “the omission to search for and discover latent defects resulting from the decay of material used in the bridge is evidence of negligence properly chargeable to those whose duty it is to repair,” and “when a bridge has served for the time timbers are expected to last, and it may be reasonably expected that decay has set in, it is negligence to omit all proper precautions to ascertain its condition.” These assignments should be considered in connection with the testimony concerning the personal inspections made by the commissioners, which appear to have been most casual. In speaking upon the subject in hand, in Rapho v. Moore, supra, we said: “The defect here was the inward rottenness of the timbers which constitute the main strength and principal support of the bridge. It was not outwardly visible, one of the supervisors having inspected the timbers outwardly just a short time before it fell. But the evidence shows that the bridge had been erected and stood the time it is usual that such timbers will last, .... and that the state of the timbers can be ascertained by persons having ordinary skill upon such a subject. It was testified that the internal condition of the timbers can be readily determined by boring into them at proper points. The question of liability for this latent defect was determined by the jury on these facts, the court having instructed them that constant watchfulness, on the part of supervisors, was a duty to the public, and having left it to them to determine whether the supervisors had used ordinary care in performing this duty, and in applying the proper test to ascertain the soundness of the timbers of the bridge. . . . When a bridge is old, having stood for the length of time that the timbers composing it are accustomed to last, and when it may reasonably be expected that decay has set in, it is negligence to omit all proper precautions to ascertain its true condition.” Again, in Rigony v. Schuylkill County, 103 Pa. 382, another bridge case, we said: “Latent defects resulting from the decay of the material used, after long use, come within a different category (from Tatent defects for which there is no liability’) and the omission to search for and discover them is evidence of negligence properly chargeable .... to those whose duty it is to repair.” The excerpts quoted could be properly applied in this case, even including the reference to the propriety of boring the timbers, for evidence to that effect was produced by the plaintiff; the instructions complained of are couched in language to be found therein, and, no doubt, they were taken therefrom. The rule laid down in the cases last cited is reiterated in the cases of McCormick v. Washington Township, supra; Coulter v. Pine Township, supra; Whitmire v. Muncy Creek Township, supra, and in Smith v. Muncy Creek Township, supra. In this latter case, affirming a judgment for the plaintiff, we said: “The bridge that broke under the weight of the traction engine on which the plaintiff was riding was built .... in 1844, and from that time to, the time of the accident in 1899, the floor timbers had not been renewed nor inspected by boring .... The strength of the bridge was ample until the timbers were weakened by decay and were subjected to a severer strain by the use of traffic engines. As there was the duty of inspection, the deterioration of the timbers should have been known to the supervisors.” These cases support the instructions, and the assignments are overruled.

. The error assigned in the fifth and last specification was the refusal to give binding instructions for the defendant. ■ The appellant contends that the rule that a county acting as a public agency is not liable for the negligence of its officers, should have been applied to the facts in this case. The authorities already cited show that the obligation to repair and properly maintain county bridges is a positive statutory duty imposed upon the commissioners, the fulfillment of which the public have a right to demand; in such instances the rule invoked by the appellant does not apply. Therefore, since the evidence was sufficient to justify the submission of the issues involved, the case could not have been taken from the jury. This assignment is likewise overruled.

The judgment is affirmed.


text:
    Desch v. Lehigh County, Appellant.

      Negligence — Bridges—Counties—Change of character of travel — Harmless error.

    1. A county is bound to strengthen and maintain its bridges in order to support automobiles of the ordinary and usual weight of vehicles traveling over the highways in the locality.
    2. Where a county is sued for a death resulting from the breaking of the floor of a county bridge under an automobile, a verdict against the county will not be reversed because the trial judge inadvertently used the word “unusual” in connection with an automobile when he intended to use the word “usual,” if it is plain from other parts of the charge that the jury could not have been misled by the mistake.
    Argued Jan. 31, 1911.
    May 1, 1911:
    Appeal, No. 253, Jan. T., 1910, by defendant from judgment of C. P. Lehigh Co., Sept. T., 1909, No. 35, on verdict for plaintiff in case of Katie S. Desch v. Lehigh County.
    Before Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Trexler, P. J.
    The facts are the same as in Gehringer v. Lehigh County, ante, p. 497.
    Verdict and judgment for plaintiff for $7,000. Defendant appealed.

      Errors assigned were various instructions.

      Reuben J. Butz, with him Claude T. Reno, county solicitor, for appellant.

      Thos. F. Diefenderfer, with him Francis G. Lewis, for appellee.
   Opinion by

Mr. Justice Moschzisker,

This is another appeal growing out of the accident described in the opinion this day filed in the case of Gehringer v. Lehigh County, ante, p. 497. We there determined the controlling principles of law, and it would serve no useful purpose to enlarge upon them here. It is sufficient to say that we have looked into and considered all of the defendant’s fifteen specifications and find no reversible error upon the record. The only assignment to which it is necessary to refer particularly is the thirteenth, containing this excerpt from the charge: ‘' The question is whether on this day this truck was such an automobile as was usual considering its weight and character, or whether it was unusual, and then if you find it was unusual you can consider the case in the further aspects as I have presented them to you.” The last use of the word “unusual,” was probably intended for “usual.” However, it is plain that the appellant did not suffer any harm therefrom, for, both before and after, the trial judge repeatedly told the jury that the county could not be held liable unless “this auto was usual and ordinary,” unless “the load that was carried .... was a common and ordinary load,” and, finally, “if you find that the auto was not of an extraordinary character but was of the ordinary and usual character .... then you say was the bridge insufficient.”

The assignments are all overruled and the judgment is affirmed.