text:
    WESTERN DISTRICT.
    Pennsylvania Railroad Company versus McCloskey’s Administrator.
    _. In an action by an administrator to recover damages for the loss of the life of his intestate, through the defendant’s negligence, the Court instructed the jury that they might compute the damages by the prqbable accumulations of a man of the age, habits, health, and pursuits of the deceased, during what would have probably been his lifetime; and added, that if the jury could find a better rule, they were at liberty to adopt it. Held, that there was no error-in this direction.
    2. The jury must, in such case, place a money value on the life of an individual, in the same manner that in other oases they estimate the value of health and reputation. The law can furnish no definite measure for damages that are essentially indefinite.
    3. A railroad company carrying passengers cannot shield themselves from tho consequences of their negligence, by showing that a person injured obeyed specific instructions of the conductor, instead of general directions of which he had been informed.
    4. Assuming that a public company of carriers may contract for other exemptions from liability than, those allowed by law, still a contract will not exempt from liability for gross negligence.
    5. A regulation by which a passenger with live stock, on the freight train, is required to remain on the cars which contain his stock, is not so transgressed by his being in another part of the train, when it is at rest, as to make him a contributor to his own injury by that train being run into by another.
    Error to the District Court of Allegheny county.

    Action on the case against the railroad company for the loss of the life of William McCloskey by the negligence of the agents or servants of the company. The action was brought by the administrator of the estate of the deceased.
    William McCloskey, on the 1st March, 1853, put on board the company’s cars at Pittsburgh a drove of horses destined for Philadelphia. It appeared in evidence that the regulations of the company required that, before any undertaking to carry live stock should he made, the owner of the stock should sign an agreement to travel on the cars containing his stock, and give his care and attention to it, act under the orders of the conductor, and release the company from all liability for personal injury, however incurred ; and there was some evidence, hut strongly contradicted, that such an agreement had been signed by him, and that he knew of the regulation.
    When the train was on its way, on the 3d March, about 11 o’clock at night, near Newton Hamilton, it was stopped by the bursting of a flue of the engine. Arrangements were immediately made to warn approaching trains of the accident; but, for reasons not necessary to mention, the warning failed to reach the train from the west, and a collision followed, which caused such injury to McCloskey that he died in a short time. The jury found that the collision arose from the gross negligence of the company’s agents.
    i When it happened McCloskey was not in the cars containing his stock, and those cars sustained no injury; but he was in the emigrant car, which was crushed by the collision, and the jury found that he was there by the direction of the conductor.
    ' McCloskey, at the time of his death, was childless and unmarried, and he left two sisters as his next of kin, and it did not appear that they had suffered any pecuniary loss by his death. It was therefore contended that no more than nominal damages could be recovered; but Williams, J., thought otherwise, and instructed the jury as appears in the opinion of this Court.
    He further instructed them that the direction of the conductor entitled McCloskey to be in the emigrant car, and that the release from liability, if signed by McCloskey, did not protect the company from damages occasioned by the gross negligence of its agents. These instructions were the principal matters complained of as error. The plaintiff had a verdict and judgment for $4500.
    By the Act of 1st April, 1836, it is provided, that if any person shall become injured, either in person or property, through or by reason of the gross negligence or wilful misconduct of the driver of any public stage, &c., carriage, or car, employed in the conveyance of passengers, or through or by reason of the gross negligence or wilful misconduct of any engineer or conductor of any locomotive, engine, &c., “such driver, engineer, or conductor shall be deemed guilty of a misdemeanorand ón conviction shall be punished by a fine not exceeding $50, and by imprisonment not exceeding twelve months, “provided that the provisions of this Act shall not interfere with the civil remedies against the proprietors or others to which the party injured may by law be now entitled.”
    By the 18th section of the Act of 15th April, 1851 (Acts, p. 674), it is enacted, that no action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff, but the personal representatives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction.
    Section 19. That whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned.

      J. H. Hampton and Stokes, for plaintiff in error.
    Carriers may limit the extent of their common law liability by contract or by notice: 4 Harris 68; 5 Rawle 189; 6 W. & Ser. 500 ; 8 Barr 484; Angell on Carriers, § 247; 4 Bing. 218; 2 Stark. 53; 19 Wend. 251, 234; 9 Watts 87; 8 W. & Ser. 373; 11 Eng. L. & E. 506; 7 Id. 395. A corporation may make such regulations as are proper for the conduct of its business: Angell on Corp. § 325; 1 L. Raym. 496; 2 Jones 321.
    The Act of 15th April, 1851, s. 19, on which this action is founded, was not intended to punish for negligence. The Act of 1st April, 1836, s. 1, makes gross negligence punishable. Com. pensation alone can be claimed in this case — compensation to the party suing, for the damage which he, or those whose pecuniary interests he represents, have sustained. No person has suffered any pecuniary damage: 10 Eng. L. & E. 437. The learned judge has furnished the jury with no measure of damages. He has left the amount entirely to their discretion.

      Shaler and Stanton, for defendant in error.

    No limitation of responsibility can excuse gross negligence: Doct. and Student 224; Angell on Carriers, § 267, 268, 275; 4 Scott 509; 4 Harris 77; 19 Wend. 251; 31 Maine 228; 2 Richardson 286. The law allows the plaintiff to recover “ damages for the death.” On a very similar British statute, 9 & 10 Vict. c. 93, the jury were instructed very much as in this case: 10 Eng. E. & L. 437; 11 Jurist 758.
   The opinion of the Court was delivered by

Lowrie, J.

The learned judge of the Court below allowed the jury to find the damages according to the value of the life lost, and suggested that, in estimating them, they might compute them by the probable accumulations of a man of such age, habits, health, and pursuits, as the deceased, during what would probably have been his lifetime; and then added: “ I think this would be a fair measure of damages in this case; but if the jury can find a better rule than the one suggested, they are at liberty to adopt it.”

To this it is objected, that it gives to the representatives of the deceased more than compensation; that is, more damages than they have suffered by the death, and that this judgment acquires a punitive character, which, it is said, could not have been intended, since the law has manifested its punitive will in a different form, by providing for the punishment of the really guilty persons, the servants of the company, in the Act of 1st April, 1836.

The latter part of this argument is answered by saying that there are many cases in which vindictive damages are given, though the act is also subject to punishment; and this is a denial of the unexpressed premises of the ai’gument, and therefore the conclusion is left without support, and we are saved the necessity of showing that it is a mere assumption to call such damages punitive.

The main purpose of the argument, however, is to show that the representatives appointed by the law in such a case, are entitled to no more damages than they have individually sustained, and it requires a more extended consideration.

Heretofore no action has been allowed among us for the death of a freeman, and the novelty of the- case contributes to the difficulty of determining it, and warns us to proceed with appropriate caution. But strange as the case is in our jurisprudence, we are not without analogies here and elsewhere which may furnish us some light.

The principle that requires compensation for the death of a freeman, is not at all new in históry. It was long an institution among our Anglo-Saxon ancestors; and perhaps it was never positively abolished, but rather died out under the influence of the Norman conquest, and the centralizing powers of the king’s Courts, which treated all such wrongs as wrongs done to the king — and hence as criminal offences. It seems to have been an institution common to all Germanic nations, and perhaps to every people that rose one degree above the savage life, and were still striving to rise. With them it was intended as a compensation to surviving kindred, and as a means of preventing the disorders that follow in the train of private revenge.

There are indications of its existence among the Romans (Dig. 9, 2, 7, 4, also 9, 2, 9, and 31), though Pasquier (Inst. de Just. 4, 3) expresses doubts about it. Voet (Pandects 9, 2, 11) and Pacius (Analysis Institutionum 4, 3, 1) refer to it as existing there, and also in Holland, the Netherlands, and perhaps in some other parts of modern Europe, and we have evidence of its existence in Scotland: Erskine’s Inst. 592, n. 13; Bell’s Principles of Law 749; 10 Eng. L. & Eq. R. 437. As it existed - among the Romans, the damages recovered by the kindred were not by way of hereditary succession ; for damages for wrongs done to the body of a freeman were not allowed to pass in that way: Dig. 9, 3, 5, 5; Pothier’s Pand. 9, 3, 12.

A recent English statute, 9 and 10 Vict. c. 93, seems to have revived the principle of the' old Saxon law, and to allow the relations of the deceased to recover damages to be apportioned among them according to the injury resulting to them respectively. In form therefore the action is for their own loss, and not a survival of the right of action for the injury to the deceased. Yet the English Courts have not known how to estimate the damages, except according to the value of the life lost: 10 Eng. L. & Eq. Rep. 437; Armsworth v. S. E. Railway Co., 11 Jurist 758; 6 Harr. Dig. 273; and this statute seems to leave other injuries to the person just as they were before, and consequently, a death from another cause, before compensation recovered, is not provided for.

But it is asked, how can one that is dead be compensated by a civil procedure, for injuries done to him in his life, and especially for the loss of his life ? This directs us to another aspect of the present claim that is not as new as the one already noticed.

In the early stages of our law all rights of action for wrongs done, not breaches of contract, died with the injured person. This, however, was altered by statute 4 Ed. 3, c. 7, and this alteration has been very largely extended by construction; and by our statute, 24th February, 1834, s. 28, nothing was excepted but slander, libel, and wrongs to the person. Many of the cases, thus declared to survive, involve questions of compensation, and exemplary damages for wrong and insult, fraud and malice, which are to be decided upon, and executed after the injured party is beyond the reach of civil compensation, and yet the injury is measured just as if he were still living.

There are abundant indications of the same law of survivorship in the Roman law in regard to such injuries; Inst. 4, 12, 1; Dig. 44, 7, 26, and 58; Dig. 50, 17, 139, and 164; Heineccius Elementa Juris. ss. 1193, 1194; Pacius Analysis Inst. 4, 12; and these embrace a wider range of injuries than have been heretofore saved from death by our law; for they include all cases actually commenced in the lifetime of the injured party, and prevent their abatement by his death.

Our Act of 15th April, 1851, seems to express its purpose better than the English one heretofore referred to; for in one section it simply provides that the action commenced for injuries to the person shall not abate by the plaintiff’s death, but shall survive by substitution of his personal representatives; and in another, that if no suit for damages be brought during life by the party mortally injured, by negligence or violence, then the widow, and if there be no widow, the personal representatives, may maintain an action for damages for the death.

The first of these sections is very plain, and it provides that the personal representatives may continue the action commenced, that is, may proceed and recover the very damages to which the deceased would have been entitled, had he survived until verdict and judgment.

The other section is somewhat less definite in regard to the damages intended; but this very indefiniteness is proof that no other thought was in the mind of the legislature than the wrong and damage done to the decedent: else it would have been made to appear. If one section related to damages done to the deceased, and the other to damages done to his relatives, these contrasted thoughts could hardly have failed to come out clearly in the expression.

But even if this were otherwise, we do not perceive how it could influence the damages; for they must necessarily be measured by the absolute value of the life lost, and not by the pecuniary loss which the designated representatives shall have thereby sustained. The precept involved in the law is, “ Thou shalt not by negligence or violence take away the life of anotherand the sanction of the law lies in the duty of compensation for the life destroyed, measured according to its own merits and not according to the necessities and circumstances of his kindred. It is very hard to value; but not for that, more uncertain than the speculations in relation to damages, which are proposed in its stead.

This thought is involved in the whole course of the legislation and jurisprudence already referred to, and it is a rejection of the idea that the negligence which destroys life is irresponsible, and an assertion of the principle that all negligence must answer for its result, however serious. We have not heretofore been startled at the absurdity of giving a pecuniary compensation for broken limbs, or ruined health, or shattered intellect, or tarnished reputation.

If the body be all crushed, we have regarded its sufferings as a subject of civil compensation so long as life smoulders beneath the ruins; even though there he no capacity to appreciate or enjoy compensation. We'ought not tó be startled that the duty of compensation is continued, when such life is smothered out.

We call it compensation, while we admit that money is a very insufficient and uncertain measure of all such injuries. But it is the best standard we have, and in practice it is not found to be absurd. The duty of the wrongdoer to make compensation is very plain, and such as he has, which the law can reach, it compels him to give: though it may never reach the consciousness of the person injured. It is an. act of distributive justice in vindication of invaded right, and it adopts the best approximation to compensation, which the authority of the law can enforce. And in these times, when criminal justice presents so many symptoms of going out of repute, and police officers are so often held up to public indignation for their performance of duty, it is found to operate well. Call it punitive; yet it is only indirectly so, as all compensation is, and does not wipe out any offence that is involved against the state. From our present experience and observation, therefore, we are unable to discover any substantial error in the instructions complained of. It would be wrong to limit the value of a man’s life by his probable accumulations, for many men make none in a lifetime, and many have arrived at an age when they no longer attempt to make any, and many women never make any; and yet every one is entitled to his life, and we have as yet discovered no standard for its valuation. It is not human possessions that are destroyed, hut humanity itself; and as this has no market value, it must necessarily be very much a matter of human feeling.

Hard, then, as the task may be, and however uncertain its results, it is to be performed by the jury, aided by the cautions and counsels of the judge, who has been trained in the consideration of juridical questions. Looking, on the one hand, to the dignity of human nature, as it has been assailed, and on the other to the position and rights of the defendant, and considering the dignity of their positions as judges of most sacred right, and their own dignity and responsibility as individuals, and loving mercy even while doing justice, the jury must place a money value upon the life of a fellow being, very much as they would upon his health or reputation. The law can furnish no definite measure for damages that are essentially indefinite.

The other points in this cause we feel compelled to dispose of in a few brief propositions:

A railroad company carrying passengers, cannot allege that a passenger is in fault in obeying specific instructions of the'conductor, instead of the general directions of which he has been informed.

Assuming that a public company of carriers may contract for other exemptions from liability than those allowed by law, still such a contract will not exempt from liability for gross negligence.

A regulation by which a passenger with live stock on the freight train is required to remain on the cars which contain his stock, is not so transgressed by his being in another part of the train, when it is at rest, as to make him a contributor to his own injury by that train being run into by another.

Judgment affirmed.

Black, C. J., and Woodward, J., dissented.


source: Caselaw Access Project

author: Mr. Justice Moschzisker,

license: Public Domain

text:
    Joyce v. Baltimore & Ohio Railroad Company, Appellant.

      Negligence — Railroads—Standing near tracks — Contributory negligence — Evidence—Province of court and jury.

    1. In an action against a railroad company to recover damages for personal injuries alleged to have been caused by an engine striking the plaintiff, the court must find as a matter of law that the plaintiff was guilty of contributory negligence, where it appears from her own testimony that in company with her sister she crossed the defendant’s tracks at a public crossing, at a point where she could have seen the engine for two hundred and fifty feet, that she took her stand in a space less than seven feet wide between the farthest track of the railroad and nearest track of a street railway, and that while waiting for a street car and when she was not confused she was struck by the engine, although her sister escaped without being touched.
    2. In order to justify the court in treating the question of contributory negligence as one of law, not only the facts but the inferences to be drawn from them must be free from doubt. On the other hand, when it is inconceivable that any two minds could rationally draw more than one conclusion from the established facts, then a decision contrary to such conclusion is merely capricious and cannot be sustained.
    Argued Oct. 19, 1910.
    Appeal, No. 44, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Second Term, 1908, No. 40, on verdict for plaintiff in case of Anna M. Joyce v. The Baltimore & Ohio Railroad Company.
    January 3, 1911:
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Carnahan, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $9,000. Defendant appealed.

      Error 'assigned was in refusing binding instructions for defendant.

      Owen S. Cecil, with him Johns McCleave, for appellant.
    Plaintiff was negligent in assuming a position of open and obvious danger and such negligence was the proximate cause of her injury: Moore v. R. R. Co., 108 Pa. 349; McGeehan v. R. R. Co., 149 Pa. 188; Davidson v. Ry. Co., 171 Pa. 522; Loughrey v. R. R. Co., 201 Pa. 297; Schmidt v. R. R. Co., 149 Pa. 357; Penman v. Mc-Keesport, etc., Ry. Co., 201 Pa. 247; Gilmartin v. Transit Co., 186 Pa. 193; Warner v. Ry. Co., 141 Pa. 615.

      Thomas M. Marshall, Jr., with him William H. Leahy, for appellee.
    The case was for the jury: Bard v. Ry. Co., 199 Pa. 94; Bickel v. R. R. Co., 217 Pa. 456; Muckin-haupt v. Erie R. R. Co., 196 Pa. 213; Newman v. R. R. Co., 203 Pa. 530; Holt v. R. R. Co., 206 Pa. 356.
   Opinion by

Mr. Justice Moschzisker,

By resolving all doubts and drawing all inferences in favor of the plaintiff, the jury could have found the following material facts: The accident happened in the city of Pittsburg on April 11, 1907 at about 7: 45 a. m. The morning was dark and foggy. The plaintiff and her sister walked down Berwick street to its intersection with the defendant’s railroad on Second avenue. They desired to reach a trolley line which was on the opposite side of Second avenue and which approximately paralleled the railroad and ran nearly at right angles to Berwick street. Before crossing the railroad they stopped, looked and listened, and not seeing or hearing any train they started across the tracks for the purpose of boarding a trolley car which they saw approaching Berwick street. In crossing they kept a lookout for trains and arrived on the opposite side in safety. They then stood in the space between the last rail of the defendant’s road and the first rail of the trolley tracks, which space at this point was about 6.90 feet wide. After a few seconds they observed a train only twenty feet away moving towards them, the trolley car then being about equally distant and approaching from the other direction. The plaintiff was struck by the train and injured. Her sister was not touched or harmed in any way. The train and the trolley car passed the women at about the same moment, the trolley having a trailer on behind which stopped opposite where they were standing. The train ran beyond about 200 feet to the station, but when it stopped its rear end was opposite the trolley trailer, and the plaintiff was picked up between the two. At the time of the accident the plaintiff could see down the railroad in the direction from which the train was coming as far as the next street, which distance she fixed in an uncertain way at 250 feet, while one of her witnesses put it at approximately 300 feet. (The only witnesses who actually measured the distance appeared for the defendant and testified to 500 feet.) No whistle was sounded or bell rung to warn the plaintiff of the approach of the train. The only definite testimony in the plaintiff’s case on the subject of speed was an estimate that the train was moving at about fifteen miles an hour.

The plaintiff testified that after crossing the railroad she looked carefully to see that no train was approaching, and saw none; that she did not then consider the place in which she was standing a dangerous one; and that when she realized the train was coming she was not confused. In describing the accident, the plaintiff said: “I was hit by the train on the back, and I was thrown .... but it was the train that hit me, and my skirt was caught in the train; and it was all torn and filled with grease.” The sister testified: “The engine hit her and knocked her against the car. . . . The skirt caught, because there is a hole in it and there was grease on it.” Catherine Smith, the only other witness for the plaintiff who saw the accident, said: “The engine of the railroad train struck her, .... and knocked her against the car.” The plaintiff established by a number of witnesses that Ber-wick street was a public crossing over the railroad; that it was usual for people to wait for and board the trolley cars at the place where she was hurt, and that this had been the general custom for at least twenty years. The plaintiff was about twenty-eight years of age at the time of the injury and her sister was then about nineteen. They lived in the neighborhood and were familiar with the locality where the accident occurred.

The statement avers: “Plaintiff alleges that she was standing at the place aforesaid, in readiness to board the said street car, she was suddenly confronted by the engine of the defendant company which was running at a high and negligent rate of speed, which sounded no bell and gave no warning of its approach. Which engine was negligently or carelessly operated by the defendant or its agents; and plaintiff did not realize that said engine was coming until it was almost upon her and within a short distance of where plaintiff was standing looking for the approaching street car . . . ., when she was suddenly struck by said engine. . . .” The statement also avers that the place where she stopped was the “regular stopping place for persons intending to board street cars,” afid the place where she crossed the tracks was “a regular railroad crossing, and has been used as such for twenty-five years or more by the citizens of that community, which fact was well known to the plaintiff company, and it was a place requiring special care and caution on the part of defendant’s employees. ...” And further, “At the time the plaintiff was struck she was standing on Second avenue, a public highway, and the engine was running so fast that the suction or current of air caused by the swiftly moving train was so great that the plaintiff’s dress was drawn in and caught by said engine, and she was partly drawn under the same and struck. . . .”

Defendant produced witnesses to show that the plaintiff was struck by the trolley car and not by the train; that it had given due warning by bells and whistles in approaching the crossing; that the plaintiff could have seen the train in ample time to avoid it had she been looking; and that the train was not running at more then six miles an hour. It proved a statement of the plaintiff, the making of which was not denied by her, to the effect that she saw the railroad train coming before she started to cross the tracks. The defendant contended that it was not guilty of any negligence and that the plaintiff was guilty of contributory negligence. The issues were submitted to the jury and they found against the defendant.

There are 'several specifications of error, but it is only necessary to pass upon the second to the effect that the court erred in not directing a verdict for the defendant. Under this assignment we will consider the question of the contributory negligence of the plaintiff.

In order to justify the court in treating the question of contributory negligence as one of law, not only the facts but the inferences to be drawn from them must be free from doubt. On the other hand, when it is inconceivable that any two minds could rationally draw more than one conclusion from the established facts, then a decision contrary to such conclusion is merely capricious and cannot be sustained. In this case the plaintiff succeeded in crossing the railroad without injury, and after reaching what she claimed to be a place of apparent safety was struck by a train. This space between the tracks, less than seven feet in width, may have been a usual and customary place in which to wait for trolley cars; but any one occupying it was bound to act with the care required in such a situation and not to stand too near the railroad tracks. According to the plaintiff’s testimony she could have seen the train at least 250 feet away, and probably farther, and yet she did not see it until it was within twenty feet of her. She testified in positive terms that she was not confused. Her sister who was standing beside her was not affected or injured in any manner. Neither the plaintiff nor any of her witnesses gave evidence from which the inference could be drawn “that the suction or current of air” created by the passing train caused her dress to be caught and thus led to her injuries; on the contrary they state that she was hit directly by the train. If the story told by the plaintiff and her witnesses is to be accepted, it is apparent that she came to grief by standing too close to the railroad tracks; and it is likewise clear that had she acted with due care she would have escaped injury, as did her sister. A nonsuit could have been entered; that having been refused, binding instructions should' have been given for the defendant.

The second assignment of error is sustained; the judgment is reversed and is here entered for the defendant.


author: Per Curiam,

text:
    Weller, Appellant, v. Potts.

      Vendor and vendee — Parol sale — Possession—Performance—Statute of frauds.

    To take a parol sale of land out of the operation of the statute of frauds, it is essential that possession should be taken in pursuance of the contract at or immediately after it was made, that the change in possession be continuous, exclusive and maintained, and that there should have been such performance of the contract by the vendee as would malee rescission inequitable.
    Argued Oct. 19, 1910.
    Appeal, No. 46, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., May T., 1906, No. 175, on verdict for defendant in case of William Weller v. John Potts.
    January 3, 1911:
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart and Mosch-zisker, JJ.
    Affirmed.
    Issue under rule to bring ejectment. Before Kennedy, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned (1 — 3) are fully stated in the opinion of the Supreme Court.

      Horace J. Thomas and John A. Metz, with them Samuel M. Meals a,nd Walter G. Crawford, for appellant.

      Nelson McVicar, for appellee.
   Per Curiam,

The title to the land in question has been in dispute for over twenty years. In 1889 it was decided by this court that the deed of John Dibel to his sons, William J. and David M. Dibel, under which the plaintiff in this action claims, did not include after acquired property and that no title to the land passed to them by the conveyance: Uhlinger v. Kennedy, 1 Monaghan, 56. In 1897 the plaintiff brought ejectment and at the trial took a voluntary nonsuit because of the failure of his proofs. In 1906, the defendant in this action who was in possession, instituted proceedings under the act of 1903, and an issue was framed to determine the rights of the parties.

In his abstract of title the plaintiff averred a parol sale by H. M. Brackenridge to John Dibel in 1857, an assignment by John Dibel to his two sons in September, 1859, and conveyances from them. Also possession by John Dibel in September, 1859, when he conveyed to his sons and a conveyance by deed by Brackenridge to him, in September, 1861. It was essential to the plaintiff's case that he should show title in John Dibel in September, 1859. He attempted to do this by offers of proof of payment on account and possession taken in pursuance of the purchase, which were objected to because such proof was not in support of any averment in the pleadings. He then sought to amend his abstract of title by adding thereto “that in pursuance of said purchase John Dibel took possession of the lots and continued in possession thereof until the assignment to Vm. J. Dibel and David M. Dibel.” The overruling of the offers of testimony and the refusal to allow an amendment are the subjects of the assignments of error.

The testimony was inadmissible under the pleadings and if the amendment had been allowed no proof admissible under it would have made out a case for the plaintiff. To take a parol sale of land out of the operation of the statute of frauds, it is essential that possession should be taken in pursuance of the contract at or immediately after it was made, that the change in possession be continuous, exclusive and maintained, and that there should have been such performance of the contract by the ven-dee as would make rescission inequitable: Wright v. Nulton, 219 Pa. 253. Since the allowance of the amendment would, have been of no avail to the plaintiff, it is unnecessary to consider the assignments further.

The judgment is affirmed.


text:
    Hodder, Appellant, v. Hogg.
    January 3, 1911:

      Equity — Findings of fact — Corporations—Officers—Salaries—Stockholder’s hill.

    Where on a bill in equity to restrain a corporation from paying salaries to its officers alleged to be unauthorized and excessive, the court finds as a fact that the salaries were authorized by the unanimous action of the directors at a regular meeting at which plaintiff was present, that the plaintiff as an officer accepted the increased salary, and that the salaries were not unusual or excessive, such findings will not be reversed by the Supreme Court where there is ample evidence to sustain them.
    Argued Oct. 19, 1910.
    Appeal, No. 48, Oct. T., 1910, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1909, No. 416, dismissing bill in equity in case of William Titus Hodder v. George Hogg et al.
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Shafer, J.

      Error assigned was decree dismissing the bill.

      James Balph, with him R. A. Balph and Robert M. Ewing, for appellant.

      W. B. Rodgers, with him Joseph F. Mayhugh, for ap-pellees.
   Per Curiam,

This bill was by a stockholder to restrain the directors of a corporation from paying certain increased salaries to the officers on the ground that the increase was not made by any proper action of the board of directors, that the salaries fixed were grossly excessive and out of all proportion to the value of the services and a fraud upon the plaintiff. The findings of fact are that the increase was made by the unanimous action of the directors at a regular meeting of the board at which the plaintiff, who was a director, was present; that as vice president of the company he received the increased salary until his connection with the company as an officer thereof ended; that it was not shown that the salaries paid were unusual or excessive or more than the services rendered were worth. There was ample evidence to sustain these findings and they are conclusive of the controversy.

The decree dismissing the bill is affirmed at the cost of the appellant.


text:
    Byers, Appellant, v. Youghiogheny & Ohio Coal Company.

      Negligence — Master and servant — Unguarded 'platform, and stairway— Risk of employment — Nonsuit.
    In an action by an employee of a coal company against Ms employer to recover damages for personal injuries.caused by a fall from an unguarded platform and stairway, a nonsuit is properly entered where the evidence shows that the dangerous condition of the platform and stairway was open and obvious to every one, that the plaintiff and the other employees of the defendant had used them for months, and that the plaintiff had continued to use them after Ms request that a guard rail should be installed had been refused.
    Argued Oct. 19, 1910.
    Appeal, No. 49, Oct. T., 1910, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T., 1906, No. 147, refusing to take off nonsuit in case of Kramer Byers v. Youghiogheny & Ohio Coal Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Kennedy, P. J., filing the following opinion:
    It is perfectly plain that the plaintiff in this case assumed the risk of his employment. Several other reasons were given in support of a motion to grant the nonsuit, but it seems necessary to consider only this one mentioned.
    The plaintiff, before the accident, had been for sometime in the employ of the defendant company as a carpenter, as well as to do other work, and, at the time of the accident, was engaged about a tipple, which he had helped to build, at what was called the Howe mine of the defendant. From the top of this tipple down to the railroad track below were pairs of steps, used by the plaintiff and other employees in ascending and descending. Between two pairs of these steps was a platform, used in going from one pair of steps to the next, and the negligence complained of by the plaintiff is the defendant’s failure to supply and put in place a hand rail or guard rail along the side of the steps and the platform. These steps and this platform were built by carpenters of the defendant while the plaintiff was there, and had been in use by the plaintiff and other employees of the defendant company, to the number of hundreds, for many months before the accident. The absence of the guard rail was plain to the notice of all, and the danger, if any, therefrom, was obvious. Not only this, but the plaintiff himself, not considering it safe, as he states, requested the head carpenter of defendant to put up a guard rail: the answer was that the company declined to do it. On the morning of the accident, the plaintiff was called by the mine foreman up to the . top of the tipple, to answer some questions or receive some information, after which he started to go down to the railroad track below, going by way of these steps and platform, and upon reaching the platform mentioned and passing over it to the head of the next pair of steps, he stepped upon a loose lump of coal, which turned under his foot, and he slipped or fell down the next pair of steps and was injured. Notwithstanding the fact that the absence of the railing, and danger, if any, were obvious, and although the plaintiff considered it unsafe, as shown by his request for a railing, which was refused, he continued, along, with many others, to use the steps and platform from August of 1905 until March, 1906, when the accident occurred. No argument is needed to show that he assumed the risk of his employment.
    January 3, 1911:
    The motion to take off the nonsuit is refused.

      Error assigned was refusal to take off nonsuit.

      W. T. Tredway, for appellant, cited:
    Bennett v. Glass Co., 158 Pa. 120; Patterson v. It. It. Co., 76 Pa. 389; Reese v. Clark, 198 Pa. 312; Williams v. Clark, 204 Pa. 416; Ely v. R. R. Co., 158 Pa. 233; Van Steuben v. R. R. Co., 178 Pa. 367; Brownfield v. Hughes, 128 Pa. 194; Valjago Y. Steel Co., 226 Pa. 514; Stehle v. Machine Co., 220 Pa. 617; Jones v. Caramel Co., 225 Pa. 644; Güila v. Coal Co., 28 Pa. Superior Ct. 11.

      B. J. Jarrett, with him Willis F. McCook, for appellee, cited:
    Wilson v. R. R. Co., 222 Pa. 341.
   Per Curiam,

The judgment is affirmed on the opinion of Judge Kennedy.


author: Mr. Justice Mestrezat,

text:
    Brackston v. Montooth Coal Company, Appellant.

      Deeds — Reservation “Coal rights and privileges” — Mines and mining.

    A deed granted to a coal company all the coal lying on the south side of a designated creek with certain designated surface rights on the lands on the south side of the creek. By a later clause in the same deed there was granted certain surface and other rights on the lands of the grantor on the north side of the creek for the purpose of operating the coal of the lands on the south side of the creek. The grantor subsequently died devising his lands to his son. The son subsequently executed a deed conveying to his grantee the land on the north side of the creek. In this deed the son reserved “the coal and coal rights and privileges in said described premises recited in deed” executed by his father, and duly recorded. Held, that the deed from the father did not include coal under the land north of the creek, and that the reservation in the deed of the son did not reserve the coal under the land lying north of the creek, but only the coal rights and privileges on the lands on the north side as specified in the father’s deed.
    January 3, 1911:
    Argued Oct. 19, 1910.
    Appeal, No. 52, Oct. T., 1910, by defendant, from decree of C. P. No. 1, Allegheny Co., June T., 1909, No. 92, on bill in equity in case of W. J. Brackston et al. v. Montooth Coal Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Brown, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree awarding injunction.

      Arthur E. Young, of Young, McClintock & Painter, for appellant.
    The intent to except coal and reserve coal rights is clear and the contents of Deed Book 151, p. 276, should not be allowed to defeat this intent: Baker v. McDowell, 3 W. & S. 358; Hads v. Tiernan, 25 Pa. Superior Ct. 14; Wager v. Wager, 1 S. & R. 374.
    When the intention of the parties is ascertained, the rule that deeds should be construed most strongly against the grantor is subservient to the intention: Altman v. McBride, 4 Starb. 208 (S. C.); Wiley v. Sidons, 41 Iowa, 224; Biddle v. Yandeventer, 26 Mo. 500; Baker v. McDowell, 3 W. & S. 358.

      Edward H. Flood, with him Edward J. I. Gannon, for appellees.
   Opinion by

Mr. Justice Mestrezat,

The learned court below has correctly found and stated the facts of the case, and we think its conclusion is right.

The clause in the plaintiffs’ deeds out of which the question in dispute arises follows the habendum clause, and is as follows: “Subject, however, to the coal rights and privileges in said described premises, recited in deed recorded in Deed Book, vol. 151, p. 276, recorder’s office of Allegheny county, which coal and coal rights and privileges are hereby expressly reserved and excepted from this grant and conveyance.” The deed referred to in the clause is an agreement between William Boggs and the Pittsburg Coal Company, dated September 16, 1861, by which Boggs granted to the company all the bituminous coal in the vein of coal then opened which was contained in and under his lands, lying on the south side of Saw Mill Run with certain designated surface rights on said lands. There was also granted the right to take stone and water, and the right of way for railroads with necessary switches, turn-outs, tunnels, an engine house, a well, a cistern, inclined planes, platform, room for a dwelling near the engine house and all necessary and convenient privileges for the complete equipment and working of said railroads and inclined planes on the lands of the said Boggs on the north side of Saw Mill Run, for the purpose of operating the coal on the lands on the south side of the run.

The plaintiffs claim title to their lands through deeds from S. L. Boggs who derived title as devisee under the will of William Boggs, deceased, probated December 21, 1867. The defendant company is mining the coal under an operating agreement with S. L. Boggs, dated January 2, 1909, which grants to the company the exclusive right and privilege of mining and taking away the Pittsburg vein of coal underlying a tract of land north of Saw Mill Run of which the plaintiffs’ lots are a part.

The right of the defendant company to mine and remove the coal depends, as we have said, upon the interpretation of the clause in the plaintiffs’ deeds immediately following the habendum clause, and quoted above. It is contended by the defendant that the clause in question excepted and reserved from the conveyances the coal under the lands granted, by S. L. Boggs to the plaintiffs. This contention was not sustained by the court below, and it held, and we think correctly so, that the clause does not refer to or include the coal under the plaintiffs’ lands which lie north of Saw Mill Run, but only such coal rights and privileges on and over the land north of the run as were granted by the agreement of William Boggs to the Pittsburg Coal Company. This agreement, as we have seen, was executed in 1861, when William Boggs, the father of S. L. Boggs, owned land on both sides of the run. S. L. Boggs acquired his title six or seven years after the grant by his father, William Boggs, to the Pitts-burg Coal Company. He, therefore, took the land north of Saw Mill Run, subject to his father’s grant to the coal company. It was then encumbered by the mining or surface rights, which were owned by the coal company. The agreement between William Boggs and the company was of record, and a grantee of S. L. Boggs of any part of the land devised to him would take it subject to the rights of the company therein.

Read in the light of these facts and circumstances, the clause in question, inserted in the habendum clauses in the plaintiffs’ deeds, is readily understood and easily construed. The “coal rights and privileges” to which the lands of the plaintiffs are subject are those recited in the deed to the Pittsburg Coal Company, and which are in and upon the “said described premises,” conveyed to the plaintiff's. These are “the coal and coal rights and privileges” which are “expressly reserved and excepted” from the conveyances. By no fair interpretation of the language used in the clause can it bo extended so as to include the coal under the land north of Saw Mill Run. If S. L. Boggs had conveyed the land to the plaintiffs without the “subject” clause, he would have been liable on his warranty, if the Pittsburg Coal Company had asserted its rights and privileges on the land north of the run which it obtained by the agreement with William Boggs.

We are all of the opinion that the clause in question did not except and reserve from the grant to the plaintiffs, the coal under the lands lying north of Saw Mill Run, and that the injunction against the defendant company was properly granted.

The decree is affirmed.


author: Mr. Justice Potter,

text:
    Ancient Order of United Workmen, Appellant, v. Mooney

      Beneficial associations — Presumption of death — Payment of benefits— Bond — Beneficiaries.
    1. Where a member of a beneficial association disappears from his home, and after he has been away and unheard of for seven years the association on the presumption of his death pays the death benefits to his wife, the beneficiary entitled under the by-laws, but takes from her a bond, conditioned upon the repayment of the money if the member should return alive, and subsequently and after the death of his wife the member returns, but shortly thereafter dies, the association in a suit on the bond against the executrix of the wife is entitled to recover the full amount of the death benefits paid, with interest from the date of the payment.
    2. Where parties treat upon the basis that the fact which is the subject of the agreement is doubtful, and the consequent risk each is to encounter is taken into consideration in the stipulations assented to, the contract will be valid notwithstanding any mistake of one of the parties, provided there be no concealment or unfair dealing by the opposite party that would affect any other contract.
    3. Where the by-laws of a beneficial association provide that death benefits shall go to the widow of the member, or in the case of her death before the member, to the children, and the wife receives the benefits on the presumption of her husband’s death after an absence for seven years, giving a bond to repay them if he returns alive, and after the death of the wife the member returns, and shortly afterwards dies, the wife’s executrix will not be entitled to retain any portion of the benefits, since the wife’s rights to the fund ceased upon her death, and became vested in the children. In an action upon the bond against the wife’s executrix the rights of the children cannot be adjudicated, inasmuch as they are not parties to the suit.
    Argued Oct. 20, 1910.
    Appeal, Nos. 65 and 120, by plaintiff and defendant, from judgments of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 583, on verdict for plaintiff in case of The Grand Lodge of the Jurisdiction of Pennsylvania, Ancient Order of United Workmen v. Anna Mooney, Executrix of Ellen Mooney, deceased.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit on a bond. Before Swearingen, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,011.81. Both plaintiff and defendant appealed.

      Errors assigned were the instructions of the court.

      Ward Bonsall, with him Charles A. Poth, for Anna Mooney, appellant.
    After an absence of seven years, unheard of, the insured will be presumed to be dead, and if premiums have been paid during that time, the insurance company must pay the policy: Hancock v. American Life Ins. Co., 62 Mo. 26; John Hancock Mutual Life Ins. Co. v. Moore, 34 Mich. 41; Mutual Benefit Life Ins. Co. v. Martin, 108 Ky. 11; Esterly’s App., 109 Pa. 222.
    Doing what one is legally bound to do cannot be a consideration to support a promise: Swaggard v. Hancock, 25 Mo. App. 596; Wimer v. Worth Township Poor Overseers, 104 Pa. 317; Robb v. Mann, 11 Pa. 300; Cleaver v. Lenhart, 182 Pa. 285; Mays v. Patterson, 20 Pa. Superior Ct. 92.
    In this suit or in any suit by the plaintiff association against the defendant for the purpose of recovering the money paid to Ellen Mooney, whether a suit on the bond or not, the defendant has the right to interpose any equitable rights which she may possess in the matter, because equitable defenses are allowed in Pennsylvania: Light v. Stoever, 12 S. & R. 431; Price v. Lewis, 17 Pa. 51; Wain v. Smith, 1 Phila. 362; Blessing v. Miller, 102. Pa. 45; Murray v. Williamson, 3 Binney, 135; Heclc v. Shener, 4 S. & R. 249; Gaw v. Wolcott, 10 Pa, 43; Patterson v. Hulings, 10 Pa. 506; Eckel v. Murphey, 15 Pa. 488; Weimer v. Clement, 37 Pa. 147; Pownall v. Bair, 78 Pa. 403; Kerr v. Culver, 209 Pa. 14.
    January 3, 1911:
    When Ellen Mooney accepted the money, surrendered the benefit certificate to the plaintiff association, and signed the bond sued upon in this case, the whole transaction was done under a mistake of fact mutual to both parties, namely, that John Mooney was dead.
    A mutual mistake of fact is grounds for the rescission of an agreement in a court of equity, and for a reinstatement of the policy: Riegel v. American Life Ins. Co., 140 Pa. 193; Riegel v. American Life Ins. Co., 153 Pa. 134.

      R. A. Balph, with him James Balph, for Ancient Order of United Workmen.
    The bond had a valid and sufficient consideration: Presbyterian Board of Foreign Missions v. Smith, 209 Pa. 361; Young v. Snyder, 3 Grant, 151.
    The mistake of fact on which a contract is founded necessary to render it void, must be a mutual mistake: Fink v. Smith, 170 Pa. 124; Perkins v. Gay, 3 S. & R. 327; Kowalke v. Ry., etc., Co., 103 Wis. 472 (79 N. W. Repr. 762); Krumrine v. Grenoble, 165 Pa. 98.
   Opinion by

Mr. Justice Potter,

John Mooney was a member of the Ancient Order of United Workmen, a beneficial society, and as such he held a benefit certificate in the sum of $2,000 payable at his death to his wife, Ellen Mooney. He disappeared and was not heard from for more than seven years, and the presumption of his death therefore arose. The wife demanded payment of the benefit certificate, and the plaintiff society made payment, but at the same time took from Ellen Mooney a bond to insure the return of the $2,000 so paid, in case it should be found that the said John Mooney was alive; and to indemnify and save harmless the plaintiff by reason of the said payment. Ellen Mooney received the payment and gave the bond in 1902, and died in 1905. In April, 1906, his children learned that John Mooney was alive, and in the following month he returned to Pittsburg, where he died soon afterwards. The beneficial society then brought this suit to recover upon the bond given by Ellen Mooney. Upon the trial the court below refused to charge as requested by counsel for defendant, that the bond was without consideration. He also refused the instruction requested in behalf of plaintiff, that it was entitled to the full amount of the money paid to Mrs. Mooney, with interest thereon. The jury were then instructed that the right of plaintiff to recover was limited to the amount of the assessments on the benefit certificate up to the time of John Mooney’s death, with interest thereon; to interest upon the sum of $2,000 paid to Ellen Mooney, from the time of such payment to the date of John Mooney’s death; and to interest on those sums from the date of John Mooney’s death to the date of the trial. In accordance with these instructions, the jury rendered a verdict in favor of plaintiff for $1,011.81. From the judgment entered thereon, both parties have appealed, and the appeals have been argued together. The questions raised are, whether any recovery can be had upon the bond, and if so, what amount. We cannot agree with the conclusions of the trial judge that the bond was given under a mistake of fact. It is evident that when the bond was given, both parties acted upon the theory that John Mooney might be alive, and to provide against the consequences of that contingency, the bond was required, and was given. We think this case comes within the principle announced by Mr. Justice Gibson, in Perkins v. Gay, 3 S. & R. 327, when he said (p. 331): “Where the parties treat upon the basis that the fact which is the subject of the agreement is doubtful, and the consequent risk each is to encounter is taken into consideration in the stipulations assented to, the contract will be valid notwithstanding any mistake of one of the parties, provided there be no concealment or unfair dealing by the opposite party, that would affect any other contract. Every wager, as well as every policy of insurance, and every compromise of a doubtful right, depends on this principle. ... If there be no intention of fraud, no unfair dealing, and neither party has more knowledge of the fact misconceived, than the other had, the contract will bind.” And in Ashcom v. Smith, 2 P. & W. 211, it was said (p. 218): “Equity will indeed relieve against a plain mistake, as well as against misrepresentation and fraud. But can mistake be alleged in a matter which was considered as doubtful, and treated accordingly? Where each of the parties is content to take the risk of its turning out in a particular way, chancery will certainly not relieve against the. event.” In Logan v. Mathews, 6 Pa. 417, Mr. Justice Coulter makes the statement (p. 421) that, “The compromise of a doubtful right or liability has always been held to be a good consideration for a promise.” And in Bispham on Equity (8th ed.), 1909, sec. 191, it is said, “Still less can a chancellor grant redress in a case where a party finds that his motives for entering into a contract were mistaken, or his expectations unfounded. This is especially the case where the means of information are equally open to both parties; or the subject matter of the agreement is of a doubtful character.”

In the case at bar, the fact that John Mooney had been absent and not heard from for more than seven years raised a presumption of his death. But it was a rebut-table presumption. “The presumption of death arising from absence, etc., stands as competent proof of death only until it is successfully rebutted by competent and satisfactory evidence:” Thomas v. Thomas, 124 Pa. 655. On the theory, therefore, that the actual death of John Mooney was a doubtful matter, the agreement in question was based, and the contract was entered into by which the amount of the insurance was paid to Ellen Mooney, and the bond to indemnify in case John Mooney should prove to be alive, was given by her. We cannot regard this as a settlement based on a mistake of fact. It certainly was not, in so far as Ellen Mooney was concerned. We think that the transaction is fairly to be regarded as a payment by the society in compromise of what at the time was a claim not free from doubt, and\ that such payment under the circumstances was a suffi-S cient consideration for the bond. As it turned out, the very thing which was regarded by both parties as a possibility, came to pass; for John Mooney was found to be alive, and under the condition of the bond it then became, the duty of Ellen Mooney to refund to plaintiff the amount of the benefit certificate, being the sum of $2,000. Nothing else than this would relieve her from the plain obligation of the bond.

Another matter appears upon the record, which shows that the view taken by the court below was wrong. Ellen Mooney, the wife of the insured, was the original beneficiary, and the money due upon the benefit certificate was paid to her as such, and she gave the bond of indemnity upon which this suit is based. But it appears that she died in the year 1905, while the insured was still living. He died in the following year, 1906. Under a by-law of the society, the interest of the wife as beneficiary ceased with her own death; and as the insured designated no other beneficiary, under the rule of the society, the benefit certificate became payable to the children of John Mooney. It therefore follows that if the certificate was in force at the time of the death of John Mooney, neither the wife, Ellen Mooney, nor her estate, was entitled to receive any part of the death benefit. Whatever sum was due thereon would have been payable, under the by-law, to other beneficiaries, the children of the insured. The judgment of the court below would leave a sum in the hands of the executrix of the wife, who apparently has no right to it. The rights of the children as beneficiaries cannot be determined in this proceeding. They are not parties to the present suit, and their claims are not here involved. We are of opinion that, under the terms of the bond, the defendant as executrix, is bound to refund to the plaintiff, with interest thereon, the full amount paid to Ellen Mooney, under the erroneous presumption of her husband’s death.

The judgment of the court below is therefore reversed, and it is ordered that judgment be entered in favor of the plaintiff in the sum of $2,000 with interest thereon from July 8, 1902.


text:
    Supreme Council of the Royal Arcanum v. Mooney, Appellant.

      Beneficial association — Presumption of death — Payment of benefits— Bond — Beneficiaries.
    Where a member of a beneficial association disappears from his home, and after he has been away and unheard of for seven years the association on the presumption of his death pays the death benefits to his wife, the beneficiary entitled under the by-laws, but takes from her a bond, conditioned upon the repayment of the money if the member should return alive, and subsequently and after the death of his wife the member returns, but shortly thereafter dies, the association in a suit on the bond against the executrix of the wife is entitled to recover the full amount of the death benefits paid, with interest from the date of the payment.
    Argued Oct. 20, 1910.
    Appeal, No. 202, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 338, on verdict for plaintiff in case of Supreme Council of the Royal Arcanum v. Anna Mooney, Executrix of the Last Will and Testament of Ellen Mooney, deceased.
    Before Fell, C. J., Mestre-zat, Potter, Elein and Stewart, JJ.
    Affirmed.
    Assumpsit on a bond. Before Kennedy, P. J.

      January 3, 1911:
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $3,500. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Ward Bonsall, with him Charles A. Poth, for appellant.

      Joseph A. Langfitt, with him H. W. McIntosh, for ap-pellee.
   Opinion by

Mr. Justice Potter,

The question here involved is precisely the same as that in the case of Grand Lodge Ancient Order of United Workmen against this defendant, in which an opinion has just been filed. The indemnity bond upon which this suit is based, is larger, and the conditions of the bond are somewhat broader than in the other case; but the principle involved is the same. The facts with regard to the disappearance of John Mooney for more than seven years, the payment of his benefit certificate on the presumption of his death, the taking of an indemnity bond conditioned for the repayment of the amount of the benefit in case the said John Mooney should prove to be alive, and his subsequent return and death, all appear in that case, and need not be here repeated.

Upon the trial of the present case, it being admitted that the amount paid by the plaintiff to Ellen Mooney, together with interest and costs and expenses, exceeded the amount of the bond, the jury were instructed to return a verdict in favor of the plaintiff for the full amount of the bond upon which suit was brought. As this case is not to be distinguished in principle from the preceding one, and as the ruling of the court below was in full accord with the principles set forth in the opinion just handed down, in Grand Lodge, etc., against this same defendant, the judgment is affirmed.


text:
    Breining, Appellant, v. Born.

      Will — Probate—Issue devisavit vel non — Undue influence.

    On an issue devisavit vel non the case should not be submitted to the j ury where no evidence is offered of any direct influence upon the testator by any one, or of any solicitation in regard to the will, and the only evidence offered to support the charge of undue influence is that some of the beneficiaries who resided with the testator drove one of the contestants, a son, from the testator’s house on account of drunkenness, and talked against the father of another of the contestants, a grandson, because he had treated with disrespect his wife, who was testator’s daughter, and that two of the daughters who kept house for the testator had great influence over him.
    Argued Oct. 20, 1910.
    Appeal, No. 66, Oct. T., 1910, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., July T., 1909, No. 423, for defendants non obstante vere-dicto in case of Christian F. Breining and Walter E. Sulzer v. Louisa Born et al.
    Before Fell, C. J., Mes-trezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Issue devisavit vel non.
    At the trial the jury returned a verdict for the plaintiffs. Subsequently on motion the court entered judgment for defendant non obstante veredicto, Shaper, J., filing the following opinion:
    The trial was on a precept from the orphans’ court directing the trial of the question whether a certain paper dated November 7, 1908, and admitted to probate by the register as the last will of Christian Breining, deceased, was procured by undue influence, fraud or duress, upon which a verdict was rendered against the will.
    The motion for a new trial, filed by the defendants, we understand to be withdrawn, but it is claimed by them that the evidence for the plaintiff was not sufficient to authorize a verdict against the will, and they have therefore moved for judgment non obstante veredicto.
    The evidence shows that Christian Breining had been for many years in business as a butcher in the Allegheny market, with a shop at his house on Chestnut street in the city of Allegheny, and that he had acquired property, real and personal, which amounted to something like $140,000 at the time of his death. He had reared a family of three sons and five or more daughters, all of the daughters but one being married and all living away from his house except one, some of them being in other states. His wife, who took a large part in the conduct of the business, died several years before him, and his eldest daughter, Mrs. Sulzer, died about a year before his death, leaving her husband and one son about twenty-five years of age, who is one of the contestants of the will. None of his sons were married and all of them lived at home and worked with him until after his wife died, when the family living at his house consisted of his daughter, Mrs. Landis, and her husband, his unmarried daughter Sophia and his three sons. His two sons, Christian and Edward, were much addicted to drink, and the sisters living at home drove Chris away from the house for that reason some years before the father’s death, the old man appearing to take no part one way or the other in the matter. Edward, a considerable time afterwards, left the house under similar circumstances, so that at the death of the testator the family consisted of Mrs. Landis and her husband, his daughter Sophia, and his son Henry who carried on the business for some three years before his father’s death, the old man having retired from business. The testator was about seventy-six years of age at the time of his death, and appears to have been in the full possession of his faculties, although he was gradually declining in health after the death of his wife and his retirement from business. He was very much attached to his daughter, Mrs. Sulzer, who lived in the neighborhood, where her husband had a gents’ furnishing store, and was accustomed to visit her nearly every day after the death of his wife up to her own death, which took place on Thanksgiving Day, 1907. He was also quite friendly to her son, Walter Sulzer, but does not seem to have been particularly friendly with his daughter’s husband, who from the evidence appears not to have been in his house for twenty years before that time. When Mrs. Sulzer fell ill of the disease of which she died there was complaint by Mrs. Landis and Sophia and Henry that they had not been informed of her sickness, but found it out accidentally, and they had complained to the old man about this neglect, and when Mrs. Sulzer died and the funeral was held on Saturday morning, the second day after her death, they complained that Sulzer had not acted with due respect to his wife in starting the funeral very early in the morning, and as they said, before the clergyman arrived at the house, and especially of the fact that he opened up his store for business at one o’clock on the same afternoon, immediately after the funeral, having the day before directed his clerks to be present for duty at that time. They complained bitterly to the old man of this as especially disrespectful to their sister, and the old man appears to have agreed with them and to have spoken of this frequently, and as a matter of fact he never returned to Sulzer’s place of business, which was near his house, after the afternoon of the day on which his daughter was buried, nor does it appear that he ever spoke to either Walter Sulzer or the father thereafter.
    About a year before his death he caused a will to be drawn up, which was offered in evidence by the contestants, in which he gave to Walter Sulzer $1,000, to Henry and Sophia, one of his houses; to Mrs. Landis, another; to his daughter Louisa, the slaughterhouse and ground, and the rest to be shared equally between seven of his children, including Christian and Edward, the shares of Christian and Edward to be held in trust by Henry and Sophia for ten years, or as much longer as they should think proper, or until they should prove themselves fit and capable to take care of themselves, and in the meantime they were to receive the revenue. This will was never executed by him, but he declared that he lost it. Some days before his death he sent his son Henry to the Dollar Savings & Trust Company to have Mr. Baldinger, an officer of that company, whom he had known all his life, come to write a will for him. Mr. Baldinger thereupon went to the testator’s house, taking with him the trust officer of the company, Mr. Cunningham, who was a member of the bar and not acquainted with the testator. He there in the presence of these two gentlemen only, having previously closed the doors, told them that he wanted a will made and how he wanted it made, and Mr. Cunningham took notes of the items of the will, and Mr. Baldinger made one or two suggestions as to the manner of arriving at the division he wished to make and as to the appointment of executors. The testator was not able to remember the names of his married daughters, that is the names of their husbands, at least not sufficiently to tell Mr. Cunningham how to put them in the will, and said he would have Henry tell them the names, which Henry afterwards came to the bank and did. The will was thereupon drawn up and brought by Mr. Baldinger to the house, where it was executed and witnessed by Mr. Baldinger and a neighbor who was called in. This will reduced the share of Walter Suker from $1,000 to $5.00, and gave Christian $1,000 subject to a trust as before, and gave Edward $5,000, in the same manner.
    There was no evidence of any direct influence upon the testator by any one, or of any solicitation in regard to the will. It is claimed, however, that undue influence exercised by Mrs. Landis and Sophia and Henry, or some of them, is to be inferred from their talking to the old man against the Sulzers as above stated, from their driving Chris and afterwards Edward away from the common home without apparently consulting the testator, and that from the evidence that Mrs. Landis and Sophia had great influence over the man a.nd managed the house, and that he sometimes referred to his daughter, Mrs. Landis, as the “gendarme,” and other similar matters, and that this undue influence caused the discrimination to be made between the children, 'as shown by the will.

      We are clearly of opinion that the evidence was not sufficient to show any undue influence exercised on the testator, but that the provisions of the will are fully explained by the conduct of the sons and his ceasing to associate with the Sulzers for the reasons above stated, or other reasons. There was some evidence that the testator drank to some extent, but it does not appear that it had affected his mind in any way, or that he drank more than, or as much as, the average of his neighbors in the quarter in which he lived. The fact that he could not tell the scrivener the full names of his married daughters, although he remembered their Christian names, does not indicate any great lack of memory, as they did not live near him and their names, except one, are English and not German. There is nothing to show that the will was not the free and voluntary act of the testator, although it may be that he was influenced by the talk of the children with whom he lived, against the two sons who did not live at home and Walter Sulzer, but there is nothing to show that these criticisms were not honest or that they were unfounded, and the influence exercised on the testator by them was in no sense “undue” influence.
    Being of opinion, therefore, that the evidence was not sufficient to go to the jury to show that the will in question was procured by undue influence, fraud or duress, inducing and compelling the testator to execute it, it is ordered that judgment be entered for' the defendants non obstante veredicto.
    Plaintiffs appealed.

      Error assigned was in entering judgment for defendants non obstante veredicto.

      R. B. Petty, with him Wm. F. Petty and Robert B. Petty, Jr., for appellants.

      John D. Brown, with hipa Lawrence P. Monahan, for appellees.

      January 3, 1911:
   Per Curiam,

Our examination of the testimony taken at the trial has not led us to doubt the correctness of the conclusion reached by the learned trial judge and we affirm the judgment on his opinion entering judgment for the defendants non obstante veredicto.


author: Mr. Justice Stewart,

text:
    McLane v. Pittsburg Railways Company, Appellant.

      Negligence — Damages—Compensation—Pain—Loss of earning power • — Charge—Inadequacy of charge.

    1. In instructing a jury as to the measure of damages for pain and suffering in an accident case, the court should not suggest the idea of price or a sum of money as a pecuniary equivalent, but should charge that their verdict should be limited to compensation and compensation alone. An instruction that the jury may allow “the present worth of pain if any is likely to be suffered in the future” is erroneous, unless the words “present worth” are fully and accurately explained as meaning compensation.
    2. An instruction that the jury may allow the “present worth” upon a future loss of earning power is inadequate and misleading, if it is not accompanied by further instructions that compensation must be the measure of the damages.
    3. In determining damages for the loss of earning power from personal injuries, profits derived from the management of business may properly be considered as measuring the earning power.
    4. It is the duty of the court in an accident case to fully instruct the jury upon the measure of damages, without a request for specific instructions; and where the instructions are manifestly erroneous the judgment will be reversed, although no request has been made for specific instructions.
    Argued Oct. 20, 1910.
    Appeal, No. 86, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1903, No. 584, on verdict for plaintiff in case of George McLane v. Pittsburg Railways Company.
    Before Fell, C. J.,. Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      Trespass to recover damages for personal injuries. Before Brown, P. J.
    The opinion of the Supreme Court states the case.
    At the trial when the mother of the plaintiff was on the stand, the following offer was made:
    Mr. Marshall: For the sole .purpose of giving evidence in regard to the plaintiff’s earnings prior to the time that he was injured, I offer to prove by the witness that he supported and maintained his mother for several years before he was hurt, and paid her during all that time from $50.00 to $60.00.
    The Court: If you show that he had no other source of income.
    Mr. Marshall: “Q. Did your son have any other source of income than what he made out of the peddling business? A. No.”
    Mr. Marshall: It will be followed by testimony on his part that he had no other income.
    Objected to as incompetent and irrelevant, and as not properly showing the earning power of the plaintiff.
    Objection overruled and bill sealed for defendant.
    George McLane, the plaintiff, recalled on his own behalf.
    Direct examination by Mr. Marshall: “Q. Had you any other income of any kind before you were hurt other than what you made in your peddling business? A. No.”
    Mrs. Adelaide McLane recalled on behalf of plaintiff.
    Direct' examination by Mr. Marshall: “Q. For two years or more before your son was injured state whether or not he gave you any sum of money monthly, and if so, how. much? A. Yes, sir; every month he supported me. Q. ITow much did he give you? A. From $50.00 to $60.00 sometimes.”
    The court charged as follows:
    It is undisputed that by the negligent collision of defendant’s cars the plaintiff as a passenger was injured and the resulting damages are disputed issues that you have to pass upon and settle by the weight of the testimony. And the weight of testimony is measured by the interest, bias, knowledge and experience of the witnesses on the stand, and by their manner and appearance and other surrounding circumstances which give it an impress weak or strong, true or false. Some of the testimony may be as good as gold, some as worthless as a counterfeit.
    In personal injury cases like the present one the measure of damages includes compensation for pain and suffering, medical expenses and loss of earnings and of earning power. While compensation for pain and suffering cannot be measured by any fixed standard such as we apply to things bought and sold in the markets, the law allows a reasonable sum, the amount to be fixed by the wise and fair discretion of the jury.
    [As a result of the injury you will allow Mr. McLane compensation for the pain and suffering he has undergone from June, 1903, to the present time; and also the present worth of pain, if any, likely to be suffered by him in the future.
    Earning power, which is an element of damage claimed in this case, depends upon the age of the person, his station in life, condition of health and habits of industry. Earning power results from the ability to work; and ability to work may be slight, or more, or much, and the earning reward in like proportion. In earning power what has the plaintiff lost from June, 1903, to the present time? Allow bim for that. And if the evidence satisfies you that his earning power for the future has been impaired by the injuries he received, to what extent has it been impaired and how long will it last? Is the impairment of ability to work total or partial? Will it last for the rest of his life, or a portion only of the remainder of his days? If for life, how long will that probably be? That is largely a guess, for no one can fathom the mystery or length of human life. He may die tp-day, to-morrow, next week or next year, or live for many years, but based upon his age, health and habits of life, how long will he probably live — how many years or a less period of time? Whatever you determine as to the probable duration of his life and as to the impairment of his power to work, to earn, the compensation to be allowed for any future loss of earnings and for pain and suffering must be its present worth, for whatever is allowed for such future loss is payable now.] [4]
    Briefly to repeat: The elements of damage are pain and suffering, medical expenses, and loss of earning power.
    The clear, forcible and able arguments of counsel will be very helpful to you in weighing the testimony and reaching a correct measure of injury and the resulting damage.
    We may say to counsel that if we have overlooked any matter to which they would have us draw the attention of the jury, we would be pleased to have them mention it.
    Mr. Marshall: Will you explain as to the future earnings and the present worth?
    The Court: [I said that the plaintiff is entitled to the loss of earnings from the time of the injury to the present time, and he would be entitled to recover the loss of future earnings, based upon his impaired earning power for a future time, whatever it might be, whether for life or for a shorter time, whether for a short time or for years or many years. Whatever that might be is to be expressed in the present worth of that sum, whether it be hundreds of dollars or thousands, as the case may be. Whatever that sum may be it is the present worth of that sum, for it is payable now:] [5]
    Verdict and judgment for plaintiff for $6,000. Defendant appealed.

      Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (4-5) above instructions, quoting them.

      Walter M. Lindsay, with him Clarence Burleigh and William A. Challener, for appellant.
    Evidence of the profits of a business, in which a person is engaged, is inadmissible, as a measure of his earning power: Goodhart v. R. R. Co., 177 Pa. 1; McCracken v. Traction Co., 201 Pa. 384.
    January 3, 1911:
    The charge of the" court below, upon the measure of damages, was insufficient and inadequate: Wilkinson v. North East Boro., 215 Pa. 486; Plerstine v. Lehigh Valley R. R. Co., 151 Pa. 244; Holden v. Penna. R. R. Co., 169 Pa. 1; Tietz v. Phila. Traction Co., 169 Pa. 516; Richards v. Willard, 176 Pa. 181; Fineburg v. Pass. Ry. Co., 182 Pa. 97; Cooley v. Traction Co., 189 Pa. 563; Clark v. Union Traction Go., 210 Pa. 636; Plodder v. Rapid Transit Co., 217 Pa. 110; Davies v. Rapid Transit Co., 228 Pa. 176.

      Thos. M. Marshall, Jr., for appellee.
    Profits may be ^he measure of earnings: Wallace v. Penna. R. R. Co., 195 Pa. 127; Hanover Branch R. R. Co. v. Coyle, 55 Pa. 396; Penna. R. R. Co. v. Dale, 76 Pa. 47; Simpson v. R. R. Co., 210 Pa. 101; Buckman v. Ry. Co., 227 Pa. 277; McCracken v. Traction Co., 201 Pa. 384.
    The charge was adequate: Wilkinson v. North East Boro., 215 Pa. 486; Baker v. Irish, 172 Pa. 528; Lewis v. Springfield Water Co., 176 Pa. 237; Com. v. Caraffa, 222 Pa. 297; Johnson v. Fire Ins. Co., 218 Pa. 421; Irwin v. R. R. Co., 226 Pa. 156.
   Opinion by

Mr. Justice Stewart,

The action was for damages for personal injury sustained by the plaintiff while a passenger on one of defendant’s cars. It resulted in a very substantial verdict for the plaintiff. The appeal brings before us for review so much of the charge of the court as relates to the measure of damages, and a single question of evidence. The elements of damage considered in the case were the pain and suffering endured and likely yet to be endured, and the loss of earning power. It is complained that the instruction with respect to the admeasurement of these was inadequate and misleading. The charge was so brief that it will not unduly lengthen this opinion to give in full all that it contains on these several points. With respect to the first — pain and suffering — the instruction was as follows:

“In personal injury cases like the present one the measure of damages includes compensation for pain and suffering, medical expenses and loss of earnings and earning power. While compensation for pain and suffering cannot be measured by any fixed standard such as we apply to things bought and sold in the markets, the law allows a reasonable sum, the amount to be fixed by the wise and fair discretion of the jury. As a result of the injury you will allow Mr. McLane compensation for the pain and suffering he has undergone from June, 1903, to the present time, and also the present worth of pain, if any likely to be suffered by him in the future.” We only remark on the brevity of this instruction to emphasize the importance, when the effort is to be brief and concise in the charge, of being strictly exact in the use of terms. A little elaboration by way of explanation would have made clear to the jury what is here left obscure, and what may have been, for all we know, misleading. It will be noticed that two standards of measurement are set up. With respect to past pain and suffering, the jury are directed to allow compensation; with respect to that yet likely to result, they are to allow present worth. The professional mind would not, of course, understand from the language used that different standards were intended. The charge however was not addressed to the professional mind, but to a jury composed of laymen, and was for their instruction and guidance. What meaning would they derive from the words, “present worth”? Compensation expresses a thought easily grasped, however difficult it may be to work it out in practical result. Worth is the quality of a thing which gives it value, and is as easily comprehended. The two words are not equivalent, and we have no right to suppose that the jury would so regard them. Except as otherwise instructed, the average juror’s understanding of worth would associate it with the idea of cost or price. Such misapprehension of the court’s meaning would either lead to the adoption of a mistaken standard, or leave the jury in uncertainty as to which of the two was to be their guide. The importance of setting before the jury with exactness the one and only standard the law has for the measure of damages in cases of this kind, has often been made the subject of judicial comment; while charges not explicit enough to exclude from the minds of the jury the idea of price in connection with pain and suffering, have not infrequently led to reversal of judgment. In Baker v. Penna. Co., 142 Pa. 503, it is said, “There is no market in which the price of a voluntary subjection of one’s self to pain and suffering can be fixed. There is no market standard of value to be applied; and to suggest the idea of price to be paid to a volunteer as an approximation in the money value of suffering, is to give loose rein to sympathy and caprice.” This was said in a case where there was no such confusion of terms as here, and where the word compensation alone was used to indicate a measure; and yet, because the idea of price, in connection with pain and suffering claimed for, might be derived from the remarks of the court, the judgment was reversed. Again, in Goodhart v. Penna. R. R. Co., 177 Pa. 1, it is said: “An instruction that leaves the jury to regard pain and suffering as an independent item of damage to be compensated by a sum of money that may be regarded as pecuniary equivalent, is not only inexact, but it is erroneous.” The only thing the law aims at in such cases as this is compensation; and the importance of confining the attention of the jury to this one consideration, is thus emphasized in Collins v. Leafey, 124 Pa. 203. Mr. Justice Mitchell there says, referring to the charge in that case: “This language cannot be said to convey to the unlearned mind the proper rule for the estimation of damages. The law cannot fix amounts, but it has a rule by which they are to be fixed; and in cases of this kind, when the inherent difficulties of measuring pain and suffering by a money standard are already so great, and the tendency of juries to suppose that they may be generous rather than just, is so strong, it is error not to lay down for the guidance of the jury in the most explicit terms, the limitations of their verdict to compensation and compensation alone.” The charge here condemned fell no further short of these requirements than the one we are considering; indeed it approached more closely. Nowhere in this charge is there anything more than an implied limitation on the verdict, discoverable only as it is sought for. This is but a feeble and insufficient substitute for the explicit terms required by the rule above stated.

If we turn to the instruction as to the other element of damage, loss of earning power, the inadequacy is quite as apparent. The charge proceeds, “Earning power, which is an element of damage claimed in this case, depends upon the age of the person, his station in life, condition of health and habits of industry. Earning power results from the ability to work, and ability to work may be slight or more, or much, and the earning reward in like proportion. In earning power what has the plaintiff lost from June, 1903, to the present time? Allow him for that. And if the evidence satisfies you that his earning power for the future has been impaired by the injury he received, to what extent has it been impaired and how long will it last? Is the impairment of ability to work total or partial? .... Whatever you determine as to probable duration of his life and as to the impairment of his power to work, to earn, the compensation to be allowed for any future loss of earning and for pain and suffering must be its present worth, for whatever is allowed for such future loss is payable now.” While there may be no positive error in this instruction as to measure of damages, it is far from being such a presentation of the law governing this question as was required for the proper guidance of the jury in their investigation of the case. The word “compensation” occurs but once in the charge instructing as to the loss of earning power, and, in the connection there employed, it would only be the most attentive mind that would observe it; and more than simple attention would be required to understand its proper significance. Where the sole purpose of the law, compensation, is so obscured or feebly expressed in a charge as here, we can have no reasonable assurance that the verdict rendered under it is not quite as much an expression of sympathy as of considerate judgment. Again, with respect to the quantum of loss of earning power, the jury were entitled to receive fuller instruction than was given. They were told correctly enough on what earning power depended, but they were not given any basis on which the comparison which would determine the result was to be made. Their attention was not called in any way to the evidence which went to show what the earning capacity of the plaintiff was before he was injured, nor to the evidence with regard to the future probability, notwithstanding the fact that there was diversity in the former, and most positive and decided disagreement as to the latter. Indeed they were not even made acquainted with the purpose of this evidence by the court; but were left to derive it for themselves and apply it by their own unaided skill. So too the instruction that the compensation to be allowed for any future loss of earnings and for pain and suffering, must be its present worth. The rule is correctly enough stated, but without full instructions as to the method of its application, it would in the case of the ordinary jury, be assuming a good deal to conclude that the law had been intelligently and correctly applied. Because of the foregoing considerations we are constrained to sustain the third and fourth assignments of error, and hold that the charge is inadequate. No fuller instructions, it is true, were asked for by the defendant’s counsel; but as we said in Wilkinson v. North East Boro., 215 Pa. 486, it is the duty of the court of its own motion to instruct the jury as to the proper measure of damages. Besides, counsel for defendant may well be excused for having omitted to ask for fuller instructions, in view of the fact that counsel for plaintiff promptly made such demand with respect "to the future earnings and the present worth,” and the response was simply a repetition of what had been already said.

Since another trial of the case must result, an expression on the question of evidence raised by the first and second assignments is required. At the time plaintiff’s injuries were received he was .engaged in the huckstering business which he conducted unaided, giving to it his personal attention, and devoting to it all his time. When on the stand he was asked with respect to the profits derived from the business. Upon objection the question was disallowed. Subsequently the plaintiff’s mother was called, and was permitted, under objection, to testify that plaintiff had no other source of income than his huckstering, and that out of said income he had paid her from $50.00 to $60.00 each month for a period of a year or more prior to his injury. However questionable this evidence, it is evident that it was resorted to in order to supply, as far as possible, so much of the plaintiff’s own testimony as had been rejected, the profits of his business. The rejection of that testimony was error. We need only refer to the case of Wallace v. Penna. R. R. Co., 195 Pa. 127, where it is held, the present Chief Justice delivering the opinion, that "profits derived from capital invested in business cannot be considered as earnings, but in many cases profits derived from the management of business may properly be considered as measuring the earning power. This is especially true when the business is one which requires and receives the personal attention and labor of the owner.” We need not express ourselves further on this branch of the case. The judgment is reversed, and a venire de novo awarded.


text:
    Crooks v. McMichael, Appellant.

      Real estate — Adverse possession — Deeds—Estoppel.
    Where a person has fenced in a triangular strip of land adjoining his own land, and has acquired title thereto by adverse possession for the statutory period, he will not be estopped from asserting such title because in a deed for coal executed after he had acquired title by adverse possession, he had not included the coal under the triangular strip, but had inadvertently followed lines in old deeds.
    Argued Oct. 20, 1910.
    Appeal, No. 87, Oct. T., 1910, by defendant, from judgment of C. P. No. 2, Allegheny County, Jan. T., 1907, No. 1004, on verdict for plaintiff
    in case of Andrew W. Crooks v. John McMichael.
    Before Fell,, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in North Fayette township. Before Frazer, P. J.
    At the trial the jury returned a verdict in favor of the plaintiff.
    On a motion for a new trial and for judgment non ob-stante veredicto, Frazer, P. J., filed the following opinion:
    From the testimony it appeared that plaintiff and defendant are the owners of farms in North Fayette township, adjoining the Steubenville pike. According to old deeds the division line between the two farms crossed the pike at an angle, leaving a small triangular piece of land at each end of the farms, one of which triangles is on the north side of the pike and originally was a part of the McMichael farm. The other triangle is on the south side of the pike and was originally part of the Crooks farm. The piece on the north side has been fenced in and used by plaintiff and his predecessors in title for at least forty-seven years, and the piece on the south side of the road has been fenced in and used by defendant and his predecessors in title for an equally long time. Whether the use of each piece was permissive, under an agreement or understanding between the. parties, or adverse was submitted to the jury and determined in plaintiff’s favor.
    At the trial it appeared that in 1894 plaintiff sold the coal underlying his farm, and in the deed therefor described the same by following old farm lines, by which he excluded the coal underlying the triangle lying on the north side of the pike, that being the land now in dispute, and included in his deed the triangular piece on the south side, which is the piece used by defendant. In 1898 defendant sold the coal underlying his farm and in his deed therefor followed old farm lines and excluded the triangular piece on the south side of the road and included the piece in dispute on the north side. Subsequently each party leased his farm for oil and gas purposes, and in describing the same followed old farm lines as they had done when making deeds for the coal.
    Defendant’s motion for judgment non obstante vere-dicto is based upon our refusal to charge the jury that plaintiff, by reason of the description contained in his deed for the coal, is estopped from maintaining this action. The verdict of the jury confirms plaintiff’s title to the land in dispute by adverse possession, unless his deed for the coal operates to the contrary. In view of the verdict of the jury it seems to us plaintiff acquired title by adverse possession to the land in dispute long before he made the deed for the coal in 1894, and the fact that he omitted the triangular piece from the deed in no way affects his title to that land. If his title was good he could either sell the coal or retain it, and if he had no title to the other triangular piece and made a deed for it he is liable to the purchaser on his warranty. Under the circumstances of this case we do not think plaintiff is estopped by his deed for his coal from claiming the disputed land, especially as the evidence does not show that defendant was misled by the conveyance. The descriptions in the deeds of both plaintiff and defendant for the coal underlying their respective farms were copied by the convey-ancers from old title papers, and in our opinion without intention upon the part of either party to assert title to the triangular piece in the possession of the other. The road was the recognized division line between the farms for at least forty-seven years, which fact gave each party a good title to the triangular piece of the other long before the sale of the coal, unless the use of the tracts was permissive, and that fact having been determined against defendant by the jury these motions for a new trial and judgment non obstante veredicto must be overruled.
    January 3, 1911:
    And now, to wit, February 7, 1910, the motions for a new trial and judgment for defendant non obstante vere-dicto refused.
    Defendant appealed.

      Error assigned was in overruling motion for judgment non obstante veredicto.

      E. E. Fulmer, for appellant.

      J. McF. Carpenter, with him Walter M. Lindsay, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the learned president judge of the common pleas.