text:
    Rauch v. Island Park Association.

      Mortgage — Corporation mortgage — Mechanic’s lien — Priority Act of_ June 4, 1901, P. L. 431.
    Where a corporation mortgage is made for the security of all the bonds issued under it, and the bonds are issued, as far as anything appears to the contrary, to raise money for the general purposes of the association, and are sold in the ordinary course of business without knowledge by or notice to the purchasers of any particular use to which the money is to be applied, the bondholders are entitled to priority, in the distribution of the proceeds of the sale of the property of the company, over mechanics' liens filed for work begun after the mortgage was recorded; and all of the bonds are entitled to such priority although some of them were sold after the improvements, for which the liens were filed, were begun.
    Argued Oct. 7, 1909.
    Appeal, No. 182, Oct. T., 1909, by Ella R. Owens, from decree of O. P. Somerset Co., Equity Docket, 1906, No. 12, overruling report of auditor in case of John O. Rauch et al. v. Island Park Association.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for the appointment of a receiver.

      Exceptions to report of J. G. Ogle, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned amongst others was in overruling the auditor’s report.

      Wm. L. Pasco, with him A. A. Stevens, W. H. Ruppel, C. W. Walker, A. C. Holbert and W. L. Hicks, for appellant.
    The holders of negotiable bonds, secured by a corporation deed of trust, are protected from mechanics’ liens, by the exception in the second section of the act of assembly, approved June 4, 1901, P. L. 431: Fenner v. Real Est. Trust Co. of Phila., 29 Pa. C. C. Rep. 329.
    There was nothing on the face of the mortgage to indicate that it was given as an advance money mortgage: Eckels v. Stuart, 212 Pa. 161.
    The whole issue of such bonds must be treated as of the date of the mortgage, without regard to the time when they were actually put out, unless the contrary is clearly expressed: Claflin v. R. R. Co., 4 Hughes, 12; Nelson v. R. R. Co., 8 Amer. Ry. Rep. 82; Reed’s App., 122 Pa. 565; Fidelity Ins., etc., Co. v. R. R. Co., 138 Pa. 494; Com. v. R. R. Co., 122 Pa. 306.

      Charles C. Greer and Valentine Hay, with them A.L.G. Hay, Ernest O. Kooser, Edmund E. Kiernan, J. A. Berkey, C. L. Shaver, William Williams and H. S. Endsley, for appellees.—
    The record of the mortgage itself, containing as it did so clearly the purposes of the proposed indebtedness, put each searcher on inquiry as to an explanation of why it had been given and was notice of everything which inquiry would have shown him: Coleman v. Reynolds, 181 Pa. 317; Kreusler v. Glukoff Co., 223 Pa. 174; Mullison’s Est., 68 Pa. 212.
    When bonds are issued as were these the presumption is that they are issued to raise money for contemplated improvements: Mason v. Frick, 105 Pa. 162; Eichelberger v. Gitt, 104 Pa. 64; Becker v. Kehr, 49 Pa. 223.
    Priority is now given over all liens, charges and incumbrances, even though the mortgages are executed and recorded before the building itself is commenced and the liens are paid out of the proceeds of any sale of the property, except as to the value of the lot itself: Fallon on Conveyancing, sec. 313; Rice v. Southern Penna. Iron R. R. Co., 32 Legal Int. 431; Roy’s App., 169 Pa. 626; Reynolds v. Reynolds Lumber Co., 175 Pa. 437; Ashhurst v. Montour Iron Co., 35 Pa. 30; TerHoven v. Kerns, 2 Pa. 96.
    January 3, 1910:
   Opinion by

Mr. Justice Fell,

The fund for distribution by the auditor arose from a receiver’s sale of the real estate of an insolvent corporation, and the contest was between bondholders and mechanics’ lien claimants for priority. The Island Park Association was incorporated under the Act of April 29, 1874, P. L. 73, for the purpose of “conducting mechanical, musical and theatrical performances and exhibitions of art and other lawful amusements.” It became the owner by purchase of two pieces of land, one of which was described in the deed of conveyance as “known as the Valley Park Hotel, having thereon erected a two-story frame hotel building, stable, dancing pavillion, electric light plant and outbuildings” for a consideration of $21,400, about $20,000 of which was made up by the assumption of the payment of liens against one of the pieces of land.

On February 1, 1906, the association executed a mortgage of all its property, rights, privileges and franchises to the Johnstown Trust Company, as trustee to secure the payment of an issue of $100,000 of negotiable bonds of like date and tenor, all being equally secured by the mortgage, “without preference or priority as to any of said bonds by reason of priority in the time of the issue thereof, or negotiations or otherwise.” The mortgage was recorded February 10; and the entire issue of bonds was certified by the trust company and delivered by it to the association on February 16, on which day bonds to the amount of $6,000 were sold. Other bonds to the amount of $49,500 were sold after that date and before any mechanics’ liens were filed. ■ On February 19, 1906, the association entered into an agreement for the building of walls and piers for a hotel, and on the same day the first work on the ground was begun.

The mortgage contained a recital of the authority given at a stockholders’ meeting to issue bonds to the amount of $100,000 “to be sold and disposed of from time to time as the necessities of the company demand, and at a price to be determined by the board of directors,” and a provision that the Park Association should from time to time pay all taxes, charges, etc., the lien whereof might or could be held to be prior to the lion of the mortgage, and that it should not “ create or suffer any mechanics or laborers’ or other lien or liens whatsoever to be created upon any part of the mortgaged property whereby the lien of the mortgage might or could be impaired in whole or in part,” etc.

The contention on behalf of the mechanics’ lien claimants was that the mortgage was given to secure advances of money knowingly furnished for the purpose of making improvements, and that they were entitled to the priority in distribution provided for by sec. 13 of the Act of June 4,1901, P. L. 431. This contention was not sustained by the auditor, who reported that there was no evidence that the money was knowingly furnished for the purpose of making improvements, and that he could not assume that it was from anything that appeared in the testimony. He found that the mortgage was a corporation mortgage, duly authorized and given to secure a unit of indebtedness, recorded prior to the beginning of the work, and that the bonds secured by it were entitled to preference in distribution over the mechanics’ liens.

Exceptions to this findings by the auditor were sustained by the learned judge of the common pleas for the reasons, as stated by him, that the purchasers of bonds knew that they were issued to provide money for improvements, “ and that besides having actual knowledge and constructive notice, the circumstances made inquiry obligatory upon them.” Of actual knowledge there was no evidence whatever. The treasurer of the association testified that the purpose of the bond issue was to raise money to improve the property by building a hotel and dance hall, and that he had stated this purpose to some persons to whom he had offered bonds, but there was no proof that he had sold any bonds or had made this statement to anyone who became a purchaser of bonds. The matters relied upon to show constructive notice were the description of the property in the deed as “the Valley Park Hotel/’ etc-., the recital in the mortgage that the bonds were “to be sold from time to time as the necessities of the company demanded,” and the agreement not to allow the lien of the mortgage to be impaired by the filing of mechanics’ or other liens; the fact that improvements were necessary to fit the property for the use intended and that the bond issue was larger than was necessary to provide for the operating expenses.

We do not see that any or all of these things warrant the conclusion reached. The description in the deed of the buildings already on the ground would indicate that the. property was fitted for its intended use, rather than that new buildings were required; the sale of bonds as the necessities of the company demanded was not notice of an intention to erect new buildings, as the money might as well be required to purchase more land or to repair and improve existing buildings; no significance amounting to notice can be given to the agreement not to permit the filing of mechanics’ lien or liens of any kind that might impair the security of the mortgage; the necessity for improvements and the character and cost thereof were matters wholly within the discretion of the directors of the association, and a purchaser of bonds could not be charged with knowledge of their undisclosed intentions.

Section 13 of the act of 1901 gives effect to mechanics’ liens for alterations and repairs as of the date of filing; in all other cases as of the date of the visible commencement of the work on the'ground; and it provides that “An estate, charge or lien of which the claimant had actual or constructive notice before the date of such visible commencement on the ground, if given to secure advances of money, knowingly to be furnished for the purpose of making the improvement in whole or in part, shall have with prior liens and incumbrances, a preferential claim upon the funds raised by a judicial sale of said property, to the extent only of the actual value of the property immediately prior to such visible commencement of the work; but the proceeds of such sale above such value shall be applied to the payment of the mechanics’ claims in preference to such estate, charge or lien.” The prior Act of June 8, 1881, P. L. 56, limited to the value of the ground before buildings were erected the liens of mortgages that were intended to secure advances of money to be made for building. The later act includes not mortgages only but “An estate, charge or lien,” given to secure advances of money made for the purpose of making improvements generally. The provision that the money shall be furnished knowingly for the specific purpose is the same.

Outside of the act of 1901 the mechanics’ hen claimants had no standing whatever to claim priority, and under it they have none. The mortgage was of record, and the bonds had been issued and were in the course of negotiation when 'they made their contracts. The mortgage was the security for all the bonds, and the whole issue must be treated as of its date: Reed’s App., 122 Pa. 565. It is the knowledge of the lender, not the unexpressed intention of the borrower, that must govern. The bonds were issued, as far as anything appears in the record, to raise money for the general purposes of the association, and were sold in the ordinary course of business without knowledge by or notice to the purchasers of any particular use to which the money was to be applied. A purchaser was under no duty to inquire what use was to be’made of the money. The record was his guide, and beyond that he was not bound to look.

The decree is reversed at the cost of the appellee, and it is directed that distribution be made in accordance with the report of the auditor.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Greenhalgh Company v. Farmers’ National Bank, Appellant.

      Banks and banking — Depositor—Cashier—Balance in pass book — Estoppel.

    1. In an action by a depositor against a bank to recover a balance of deposit, the case is for the jury where the plaintiff claims that three items of deposit were made in the course of banking business, while the defendant claims that the three items were not deposited, but were in fact private loans to the cashier of the bank, and the evidence as to the respective claims is conflicting.
    2. In such a case the trial judge commits no error in refusing a point to the effect' that if the jury found that the general manager of the plaintiff company and the cashier of the bank made an arrangement by which the amount of money represented by the three disputed checks was intended as an individual loan to the cashier and was received by him as such, there could be no recovery. The rights of the plaintiff and the liability of the bank did not necessarily depend upon what the respective officers did, or attempted to do, because they may have acted outside of the scope of their authority by undertaking to do what they had no right or power to do.
    3. A balance struck in a pass book is in effect an account stated between a bank and its depositor, which may be impeached for fraud or error, but unless so impeached the bank is estopped from denying its liability as shown by the account so stated by it.
    4. Whether a bank is or is not estopped from denying its liability for a balance stated by reason of fraud or error depends upon the facts, which are for the jury. In such a case the burden is on the bank attempting to evade responsibility because the presumption is that the balance stated by its own officers is correct and truly represents the account between the parties.
    Argued Oct. 7, 1909.
    Appeal, No. 195, Oct. T., 1909, by defendant, from judgment of C. P. Venango Co., Jan. T., 1909, No. 17, on verdict for plaintiff in case of Greenhalgh Company v. The Farmers’ National Bank.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover a balance alleged to be due plaintiff as a depositor. Before Criswell, P. J.
    At the trial it appeared that the plaintiff deposited on June 6, 1906, and October 5, 1906, two checks for $3,000 each to the order of W. C. McKee, cashier, and on November 23, 1906, one for $1,500 to the order of W. O. McKee, individually. The plaintiff contended that these checks were payments to the bank in the nature of deposits. The defendant claimed that they were individual loans by the plaintiff to the cashier of the bank. The evidence on the subject was conflicting.
    Other facts appear by the opinion of the Supreme Court.
    Defendant presented the following points:
    1. Under the pleadings and evidence, the plaintiff is not entitled to recover. Answer: Refused. [8]
    2. If the learned court refuses to affirm the foregoing point, then further instructions on behalf of the defendant is asked as follows: The plaintiff has failed to produce sufficient evidence to warrant the jury in finding that W. C. McKee, in virtue of his office as cashier of defendant bank, had authority to make the alleged contract herein sued upon. Answer: Refused as applicable to the pleadings and evidence. [9]
    3. Plaintiff has failed to produce sufficient evidence to warrant the jury in finding that the proper officers of the defendant bank legally ratified the alleged actions of W. C. McKee, in making the alleged special contract as set forth in the plaintiff’s statement of claim. Answer: Refused as applicable to the pleadings and evidence. [10]
    9. If the jury finds that pursuant to an arrangement made between W. C. McKee and Ella M. Greenhalgh, general manager and treasurer of plaintiff company, the three checks of June 26, October 5, and November 23, 1906, aggregating $7,500, were intended to be loans to, and as such received by W. C. McKee, individually, the plaintiff is not entitled to recover. Answer: Refused. [11]
    Verdict and judgment for plaintiff for $5,594.40. Defendant appealed.

      Errors assigned among others were (8-11) above instructions, quoting them.

      J. S. Carmichael, with him W. J. Breene, for appellant. — ■
    The rule that knowledge or notice of a fraud to an agent in the -course of Ms employment is notice to the principal does not apply where the agent, through notice to whom knowledge is to be imputed the plaintiff, is Mmself the author of the fraud: Gunster v. Scranton Illuminating Heat & Power Co., 181 Pa. 327; United Security Life Ins. & Trust Co. v. Central Nat. Bank, 185 Pa. 586.
    January 3, 1910:
    The knowledge of an agent, even in the absence of fraud, is not the knowledge of the principal if the former is acting beyond the scope of his authority: Weisser v. Denison, 10 N. Y. 68; Welsh v. German-American Bank, 73 N. Y. 424; Frank v. Chemical Nat. Bank, 84 N. Y. 209; Phila. Bank v. Officer, 12 S. & R. 49.
    The contract being special and not implying authority of the casMer or bank in due course of business, the burden rested under the pleadings upon the plaintiff to show authority for such contract and in this it entirely failed.

      Geo. E. Reynolds, with him F. A. Sayers, for appellee.
    A balance struck in a pass book is in effect an account stated between a bank and its depositor, which may be impeached for fraud or error, unless an estoppel exists: Leather Manufacturers’ Nat. Bank v. Morgan, 117 U. S. 96 (6 Sup. Ct. Repr. 657).
    It is submitted the making of entries being in the line of the casMer’s general authority and the money having actually been received by the defendant bank, his excess of authority in particular instances is binding upon the bank unless the plaintiff had knowledge of the excess of authority: Hill v. Trust Co., 108 Pa. 1; Brooke v. N. Y., L. E. & W. R. R. Co., 108 Pa. 529; Nat. Bank of Boyertown v. Fridenberg, 206 Pa. 243.
    It is the established doctrine of tMs state that knowledge of an agent acting in Ms own antagomstic interest cannot be imputed to the principal: Gunster v. Scranton Illuminating Heat & Power Co., 181 Pa. 327; United Security Life Ins. & Trust Co. v. Bank, 185 Pa. 586; Myers v. Bank, 193 Pa. 1; McNeely Co. v. Bank, 221 Pa. 588.
   Opinion by

Mr. Justice Elkin,

This was a case for the jury, and after a careful consideration of the record here presented, including the charge of the court and the questions raised by the assignments, we have not been convinced that any reversible error was committed in its submission. The appellee is a trading corporation and the appellant is a national bank with authority to receive moneys on deposit and do a general banking business. The appellee opened an account with the appellant bank and made deposits from time to time in the ordinary course of banking — at least such is the contention of appellee. The first three items of credit claimed by the plaintiff company are denied by the defendant bank as a liability against it. The defense is that these items were not received by the bank as deposits, but were intended as private loans to the cashier of the bank and in fact were so used. The case proceeded to trial upon the controverted questions of fact material to this issue. A large amount of evidence was introduced bearing directly or incidentally upon the question at issue, with the result that a verdict was returned in favor of the plaintiff.

The appellant contends that the judgment should be reversed for several reasons, the most important of which may be set forth as follows: First, under the pleadings and evidence the contract sued on was special, not made in the ordinary course of banking business nor within the scope of the cashier’s authority, and that by reason thereof judgment should have been directed for defendant. This position is clearly not tenable. Whether the controverted items were deposited in the usual and ordinary course of banking and intended as a credit to the account of the plaintiff company or were private loans to the cashier were the important questions involved in the issue and they were for the jury. It would have been clear error for the court under the evidence to have held as a matter of law that no liability attached to defendant. Second, that the court erred in refusing to affirm defendant’s ninth point, which requested the trial judge to instruct the jury if they found that the general manager and treasurer of the plaintiff company and the cashier of the defendant bank made an arrangement by which the amount of money represented by the three disputed checks was intended as an individual loan to the cashier and was received by him as such there could be no recovery. The learned court was clearly right in refusing to affirm this point as submitted. All of the facts set forth in the point might be true without affecting either the rights of the plaintiff company or the liability of the defendant bank. The rights of the one company and the liability of the other did not necessarily depend upon what the respective officers did, or attempted to do, because they may have acted outside of the scope of their authority by undertaking to do what they had no right or power to do. The jury either did not believe, any such arrangement had been made or found that these officers had no authority to make it if attempted. To have affirmed the point as submitted would have been misleading and would not have correctly stated the law applicable to the facts of the case. Third, that the court erred in introducing the doctrine of estoppel based upon the entry by the cashier of the items of credit claimed in the bank book of the appellee and upon the balances thérein stated. We do not agree with this position under the facts of the present case. A balance struck in a pass book is in effect an account stated between a bank and its depositor, which it is true may be impeached for fraud or error, but unless so impeached the bank is estopped from denying its liability as shown by the account so stated by it. This doctrine is of universal application. Whether a bank is or is not estopped from denying its liability for a balance stated by reason of fraud or error depends upon the facts, which are for the jury. In such a case the burden is on the bank attempting to evade i*esponsibility, because the presumption is that the balance stated by its own officers is correct and truly represents the account between the parties. The learned court below very carefully explained the doctrine of estoppel as.applied to the facts of the case, and we find no error in the charge in this respect. Fourth, it is complained that the charge was confusing and contained extraneous matters, and that there was not an adequate and judicial presentation of the defendant’s case in its submission to the jury. Before passing upon the merits of the assignments which raise these questions we have carefully examined the testimony as well as the charge of the trial judge for the purpose of ascertaining whether any injustice was done appellant by the alleged errors complained of, and as a result have concluded not only that these assignments are without merit but that the learned court fully, fairly and intelligently explained the law applicable to the case and that the manner of its submission is free from just criticism.

Assignments of error overruled and judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Commonwealth v. Fisher, Appellant.

      Criminal law — Murder—Misconduct of juror — “Two term rule.”

    1. A judgment on a verdict of guilty on a murder trial will be set aside where it appears that the jury slept in a hotel, where they walked and lounged and mingled with the other guests, that they went separately with tipstaves to drinking saloons, to drug stores and to barber shops, that some of them drank in the saloons, and that they were furnished with beer and whisky which they drank in their room in the hotel.
    2. It is the duty of the court to see that the jury, after they are charged with the prisoner, are not exposed to contact or do not communicate with outsiders either during the progress of the trial or after they have returned to their room to deliberate and make up their verdict; and it is also the duty of the court not to permit the jury to receive and use intoxicating liquors while they have the prisoner in charge.
    3. It seems that the right of a prisoner to be discharged under the “two term rule,” is essentially a habeas corpus proceeding under sec. 54 of the Act of March 31,1860, P. L. 427, which is a re-enactment of the Act of February 18, 1785, 2 Sm. L. 275, sec. 3. This proceeding is separate and distinct from the trial of the cause and is not reviewable on an appeal from a conviction at the trial.
    Argued Oct. 11, 1909.
    Appeal, No. 198, Jan. T., 1909, by plaintiff, from judgment of O. & T. Northumberland Co.,‘ Feb. T., 1907, No. 2, on verdict of guilty of murder of the first degree in case of Commonwealth v. Henry Fisher.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Steavart, JJ.
    Reversed.

      January 3, 1910:
    Indictment for murder. Before Savidge, P. J.
    At the trial the jury returned a verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.
    The prisoner moved for a new trial, alleging among other grounds the gross misconduct of the jurors during the progress of the trial. The court overruled the motion.

      Error assigned amongst others was the refusal of the court to set aside the verdict on the ground of the misconduct of the jurors.

      J. A. Welsh, with him John I. Welsh and C. K. Morganroth, for appellant.
    From the time when the right of a trial by jury was established by the English people, down to the present day, the unbroken rule of courts has been that juries in trials involving human life should be kept aloof, and free from all outside influences. This court has reiterated this basic principle in a long line of cases: Kramer v. Kister, 187 Pa. 227; Moss v. Com., 107 Pa. 267; Com. v. Eisenhower, 181 Pa. 470; Com. v. Manfredi, 162 Pa. 144; Peiffer v. Com., 15 Pa. 468; Hilands v. Com., 111 Pa. 1.

      D. W. Shipman, with him A. K. Deibler, district attorney, and H. W. Cummings, for appellee,
    cited as to the conduct of the jury: Com. v. Thompson, 4 Phila. 215.
   Opinion by

Mr. Justice Mestrezat,

More than half a century ago Chief Justice Gibson, speaking for this court in Peiffer v. Com., 15 Pa. 468, said (p. 470): “Even the forms and usages of the law conduce to justice; but the common law, which forbids the separation of a jury in a capital case before they have been discharged of the prisoner, touches not matter of form, but matter of substance. It is not too much to say that if it were abolished, few influential culprits would be convicted, and that few friendless ones, pursued by powerful prosecutors, would escape conviction. Jurors áre as open to prejudice from persuasion as other men, and neither convenience nor economy ought to be consulted, in order to guard them against it. Let them have every comfort compatible with their duties; but let them not be exposed to the converse of those who might pervert their judgment.”

In Com. v. Roby, 29 Mass. 496, the learned Chief Justice Shaw speaking for the supreme judicial court of Massachusetts on the same subject said (p. 519): “The rule of the authorities is, that where there is an irregularity which may affect the impartiality of the proceedings, as where meat and drink or other refreshment has been furnished by a party, or where the jury have been exposed to the effect of such influence, as where they have improperly separated themselves, or have had communications not authorized, there, inasmuch as there can be no certainty that the verdict has not been improperly influenced, the proper and appropriate mode of correction or relief is by undoing what is thus improperly, and may have been corruptly done; or where the irregularity consists in doing that which may disqualify the jurors for proper deliberation and exercise of their reason and judgment, as where ardent spirits are introduced, there it would be proper to set aside the verdict, because no reliance can be placed upon its purity and correctness.”

These cardinal rules should control courts in dealing with the conduct of jurors, and especially in cases where a defendant is on trial for his life. He has the right to be tried by a jury of his countrymen who are free from bias and prejudice and who are permitted to hear and deliberate upon his case from the evidence whieh is produced on the trial, without any communication or interference by outside parties. It is upon such evidence that the guilt or the innocence of the defendant should be determined, and he has the right to demand of the court that no other evidence shall be heard or considered by the jury. It is also the duty of the court to see that the jury, after they are charged with the prisoner, are not exposed to contact or do not communicate with outsiders either during the progress of the trial, or after they have returned to their room to deliberate and make up their verdict. In other words, from the time the jury is sworn until they have returned their verdict to the court, they must be kept entirely aloof and free from contact or communication with other parties than the bailiffs who have them in keeping during the trial. This is absolutely necessary if the case is to be tried by an impartial and unbiased jury, and the constitutional rights of the defendant are to be protected.

While the jury are to be kept free from outside influences during the trial, it is equally important that the jurors be what the law requires them to be, “ sober, intelligent and judicious persons,” and that they continue to be such until the verdict has been rendered and the guilt or innocence of the defendant has been determined. It is for this reason that courts of justice will not permit a jury, charged with passing upon the life of a prisoner, to receive and use intoxicating liquors while they have the prisoner in charge. The twelve men who have been summoned and sworn to pass upon his guilt or innocence should be free from the effects of intoxicants which, in the language of Chief Justice Shaw, disqualify them for a “proper deliberation and exercise of .their reason and judgment.”

Henry Fisher, the defendant, was indicted in the court of oyer and terminer óf Northumberland county and was convicted of murder of the first degree. Upon appeal to this court, the judgment was reversed and a new trial was ordered. Fisher was again tried, convicted of murder of the first degree, and has taken this appeal-. Among his other complaints, he alleges serious and grave misconduct on the part of the jury which, he contends, has deprived him of his constitutional rights. We agree with him, and are compelled to reverse the judgment on that ground.

The learned court below was asked to correct the misconduct of the jury by granting a new trial, and we think it evident from the opinion of the learned judge refusing the new trial, as well as the concessions made by the counsel for the commonwealth in his argument to this court, that a new trial should have been granted. We will not go over in detail the testimony disclosing the misconduct of the jurors during the trial and after they had retired to deliberate upon the verdict; we will refer to it briefly.

It is apparent that Northumberland county does not have proper and suitable accommodations for jurors empaneled in homicide cases. This is conceded by counsel on both sides of the case, and is made further apparent by the fact that this court has reviewed two capital cases from the county and in both cases we were required to pass upon the misconduct of the jurors. In the present case the jury was sworn at 7:30 p. m. on Wednesday and returned a verdict the following Saturday about 2:30 P. m. The jury were put in charge of two tipstaves, one of whom, it is manifest, is a man whose many years unfit him for the position. The usual oath was administered to these tipstaves in which they swore that they would not permit any person to speak to the jurors, nor speak to them themselves, nor would they speak to them in relation to the trial except to ask if they had agreed upon their verdict or to return to the court room, or concerning their health, comfort and necessities while in their custody. During the trial while the jury was not in court, they were kept at a hotel in the busiest part of the town which, for the reasons shown by the depositions, was an improper and unfit place. When they left the jury box they were required to pass through the crowd in the court room and in a hall; and they entered the hotel through the corridor where they came in contact with the guests of the house. It seems that the sessions of the court were extended into the night. A short time after the jury had been sworn, one of the jurors left his fellows and went with a tipstaff to a saloon and there both he and the tipstaff obtained beer and cigars. The juror testified that while he was in the saloon he did not use the telephone, but in this he was positively contradicted by the tipstaff who testified that the juror did talk on the telephone with some unknown person. Of course what was said to him over the telephone could be known only by himself and the person with whom he conversed. The tipstaff in the first part of his examination testified that he heard the conversation, but finally admitted that he did not know what was said by the party talking with the juror. It appears from the testimony that this juror was absent from the other jurors without their knowledge.

On Thursday night, about midnight, after the jurors had returned to their room in the hotel, two of their number left the room and the hotel with a tipstaff, and went across the street to a saloon, some distance away. There were other persons in the saloon who were discussing the topics of the day. It may well be assumed that one of the topics under discussion was the Fisher homicide trial which then seemed to be exciting much attention in that community. While in the saloon, one of the jurors and the tipstaff drank at the bar, the other juror during the time was some distance apart from them, near the wall. The latter was questioned in regard to the Fisher case until the tipstaff interfered. The extent of this conversation does not clearly appear from the testimony. While the tipstaff testified that there was no conversation with the juror, yet his recollection is clearly at fault if other testimony on the subject is credible.

The jurors were frequently in the corridor of the hotel where the other guests assembled and conversed. They were thereby thrown in close contact with outsiders and could hear their conversation. It was testified by a disinterested witness that on one of these occasions, one of the jurors was spoken to. This the tipstaff denied. During the time the jurors were walking or lounging in the lobby they were necessarily separated, and what they heard and with whom they conversed cannot positively be known. It is apparent, however, that there was an opportunity for them to be approached upon the subject of the trial. On one occasion it appears that three of the jurors were in a toilet room with another party and with the tipstaff on the outside and not in a position to know what was taking place between the jurors and the other party. On another occasion, while the court was in session, certain jurors left the box, passed through the audience in the court room and the crowd in the hall to the toilet room unaccompanied by any officer. On another occasion a tipstaff took two or three of the jurors to a barber shop. Again, one of the jurors left his colleagues and went to a drug store so frequently that the tipstaff who accompanied him complained of it. On these occasions, the juror got “stomach medicine” and cigarettes.

In addition to this conduct of some of the members of the jury in separating themselves from their colleagues, and going to a drug store, to a saloon outside of the hotel where they were stopping, and to barber shops, it appears from the testimony and it is conceded that on several occasions they had both beer and whisky in their room at the hotel. The quantity of each is not known; nor is it known who furnished the greater part of it. On some occasions the tipstaves would bring it to the jury, on others it would be brought by the bell boys at the hotel. One juror said he had a pint of whisky, another said that he ordered whatever whisky he needed and got it, and another spoke of the quantity of beer used. The beer was taken to the room in bottles and a lard can. One juror testified that he told the tipstaff what liquor he wanted and he got it, and another, that the jurors themselves brought liquor to the room. During the drinking.it appears that the tipstaves and the jurors “were talking backwards and forwards.” It seems from the testimony that the tipstaves also participated in the drinking. One of the tipstaves testified that the bell boys brought the whisky to them, but he did not know who ordered it.

We will not go further into the testimony showing the misconduct of the jurors who were impaneled to determine the guilt or innocence of the defendant. What has been stated was amply sufficient to require and compel the learned judge below to set aside the verdict and grant the defendant a new trial. In the recent civil case of Mix v. North American Co., 209 Pa. 636, where the trial judge with a knowledge of the misconduct of the jury declined to set aside the verdict, our Brother Brown, in speaking for the court and reversing the judgment against the defendant for such misconduct, said (p. 645): “Here the deviation was gross; officers were utterly regardless of their oath in allowing the jury to separate, and' the jurors themselves were heedless of their duty in doing so; and taking their separation into consideration in connection with their communication with outside parties after they had retired to their room and with the gambling that was continued only after money had been sent for and received from the outside, their misconduct cannot escape judicial condemnation.” This language may well be applied to the case in hand. There was apparently no effort to seclude this jury from contact with the public. They were permitted to pass through the crowds in the court room, in the hall, and in the corridor of the hotel. They were permitted to go to saloons, a drug store, and barber shops, where they came in contact with outsiders. They spoke with other parties, and if the tipstaff is to be believed, one of the jurors who did communicate with an outsider testified falsely to the fact. In a recent appeal from this same court, we declared it to be a reprehensible practice to permit jurors during a murder trial to separate so far as to go to a barber shop although under the charge of an officer; and we further emphatically said: “To permit them to separate and some of them to go to a public room where they might be brought in contact and communication with others was a palpable violation of an unbroken practice of the courts of oyer and terminer, especially in capital cases, and meets with our condemnation:” Com. v. Gearhardt, 205 Pa. 387, 393. In the same case we also said (p. 393): “ We unhesitatingly condemn such indifference to their oath on the part of the officers and such heedlessness of duty on the part of the jurors, for they doubtless heard the oath administered to the tipstaves.” If we add to the separation of the jury and its attending circumstances, the fact that both whisky and beer in unknown quantities were taken to the jury room at the hotel and were consumed by the jurors in the manner shown by the evidence, there can be no question that the learned trial judge abused his discretion when he refused to set aside the verdict. It is seldom, we are pleased to say, that this court is called upon to review a case where the trial court has permitted a verdict of murder of the first degree to stand which was obtained under such circumstances. Verdicts obtained under circumstances of this character cannot receive the approval of a judge or court which has proper respect for and enforces the constitutional rights of the citizen. The defendant had a right to be tried by a jury, who were free from the contamination and influence of outsiders and were above suspicion of being intoxicated while in the discharge of their duties. For such gross misconduct of the jury as appears from the evidence in this case, we are compelled to sustain the assignment of error and set the verdict aside.

We do not deem it necessary to consider the other assignments of error. We may suggest, however, that the right of the defendant to be discharged under the “two term rule” is essentially a habeas corpus proceeding under sec. 54 of the Act of March 31, 1860, P. L. 427, which is a re-enactment of the Act of February 18, 1785, 2 Sm. L. 275, sec. 3. This proceeding is separate and distinct from the trial of the cause and is not reviewable on tins appeal: Clark v. Com., 29 Pa. 129. If, however, the assignment is considered it must be overruled, because the continuance was caused by the condition or conduct of the defendant himself. He is therefore not in a position to take advantage of the statute.

While it is unnecessary to pass upon the assignments alleging error in overruling the defendant’s challenge for cause to certain jurors, we may suggest, as the case must be retried, that the rule which the court should observe is well stated in Staup v. Com., 74 Pa. 458; O’Mara v. Com., 75 Pa. 424; and Allison v. Com., 99 Pa. 17. The next will be at least the third trial of the defendant for this offense, and as the people of Northumberland county generally are familiar with the case, the learned trial court may have occasion to apply the rule applicable to challenges of jurors who have heard or read the testimony given on a former trial.

The judgment is reversed, and a venire facias de novo is awarded.


author: Mr. Justice Potter,

text:
    Gibson v. Bessemer & Lake Erie Railroad Company, Appellant.

      Appeals — Assignments of error — Improper assignments — Superior Court.

    1. On an appeal from a judgment of the Superior Court, assignments of error are improper which merely allege error upon the part of the trial court, and not by the Superior Court.
    2. On such an ■ appeal an assignment of error is improper which specifies error by the Superior Court in not sustaining the assignments of error filed in that tribunal, but includes eight assignments under the one head, instead of assigning the overruling of each assignment separately.

      Bailment — Contract—Livery stable keeper.

    3. The relation between a livery stable keeper and one who hires from him a horse and carriage, is that of bailor and bailee, and the contract between them for the hire and use of the chattels constitutes a bailment.

      Negligence — Joint tort feasors — Bailment—Horse—Railroads.
    4. Where the owner of a livery stable lets out a horse and buggy and the horse is killed at a grade crossing by the joint negligence of the bailee and the railroad company, the negligence of the bailee is not to be imputed to the owner of the horse, so as to prevent him from recovering from the railroad company

      Negligence — Railroads—Grade crossings — Case for jury.

      5. In an action against a railroad company to recover damages for the killing of a horse at .a grade crossing of a busy street of a town, the case is for the jury where the evidence shows that the engine was going at the rate of from fifteen to twenty miles an hour, that it ran 300 or 400 feet after it hit the horse before it could be stopped, and three witnesses testify that no signal was given by the engine or otherwise, and that they were in a position to hear, and were listening, and would have heard, had any signal been given.
    Argued Oct. 11, 1909.
    Appeal, No. 9, Oct. T., 1909, by defendant, from judgment of the Superior Court, April T., 1908, No. 38, affirming judgment of C. P. Butler Co., Sept. T., 1907, No. 26, on verdict for plaintiff in case of Martin L. Gibson v. Bessemer & Lake Erie Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from judgment of the Superior Court.

      Errors assigned appear from the opinion of the Supreme Court.

      Lev. McQuistion, with him C. L. McQuistion, for appellant.
    The pinch in this case is that Lantz was not driving a vehicle owned by a common carrier, but a private vehicle in which he had a special ownership and in violation of a fixed rule of law. The rule that the negligence of the driver is not imputable to the passenger or guest has no application to cases where the injured party’s conveyance is private: Carlisle Borough v. Brisbane, 113 Pa. 544; Winner v. Oakland Twp., 158 Pa. 405; Billet v. R. R. Co., 11 York Leg. Rec. 173.
    No testimony was adduced showing negligence on part of defendant, and the court’s charge to the jury was inadequate: Holden v. Penna. R. R. Co., 169 Pa. 1; Knox v. Ry. Co., 202 Pa. 504; Hess v. R. R. Co., 181 Pa. 492; Urias v. Penna. R. R. Co., 152 Pa. 326; Newhard v. Penna. R. R. Co., 153 Pa. 417; Childs v. Penna. R. R. Co., 150 Pa. 73; Dryden v. Penna. R. R. Co., 211 Pa. 620.

      John B. Henninger, for appellee.
    That the negligence of a bailee is not the negligence of the bailor is declared by many decisions of the federal courts, this court and the courts of adjoining states: Connor v. Penna. R. R. Co., 24 Pa. Superior Ct. 241; Colligan v. Penna. R. R. Co., 214 Pa. 229; Little v. Hackett, 116 U. S. 366 (6 Sup. Ct. Repr. 391); N. Y., etc., R. R. Co. v. N. J. Elec. Ry. Co., 60 N. J. L. 338 (38 Atl. Repr. 828); N. Y., etc., R. R. Co. v. Steinbrenner, 47 N. J. L. 161.
    The testimony of witnesses listening for trains at a crossing and hearing none, is of a higher grade than mere negative testimony, and is sufficient to require the submission of the evidence to the jury: Longenecker v. Penna. R. R. Co., 105 Pa. 328; Crane v. R. R. Co., 218 Pa. 560; Corcoran v. R. R. Co., 203 Pa. 380; Winterbottom v. R. R. Co., 217 Pa. 574.

      January 3, 1910:
   Opinion by

Mr. Justice Potter,

This was an action of trespass brought in the court of common pleas of Butler county by Martin L. Gibson against the Bessemer & Lake Erie Railroad Company, to recover damages for the killing of plaintiff’s horse and for injuries to his buggy and harness alleged to have been caused by the negligence of defendant’s servants. Upon appeal to the Superior Court the judgment was affirmed, and from this judgment of the Superior Court the present appeal was taken.

It appears that the plaintiff was the owner of a livery stable in the borough of Butler. On June 25, 1906, he let for hire a horse and buggy to one Lantz, who with a companion named Nicholas, drove through the town. In crossing the tracks of the defendant company where they intersect at grade with Main street, a public street of the borough, the horse and buggy were struck by a tender attached to one of the defendant’s engines which was running backward at the time. The horse was killed and the buggy and harness badly damaged. Both Lantz and Nicholas admitted on. cross-examination that they did not stop before driving upon the railroad track. They both testified that they were struck by the tender of an engine, running backward at a speed of fifteen or twenty miles an hour; that there was no bell rung nor whistle sounded, nor warning of any ldnd given them of the approach of the engine, and that there was no flagman or electric bell at the crossing. Another witness, George Howard, who was on the opposite side of the crossing and saw the locomotive approaching, testified that he did not hear any whistle blown or bell rung, and saw no flagman.

Both the trial court and the Superior Court held that the driver of the buggy was by his own admission guilty of contributory negligence, but that such negligence was not imputable to the plaintiff and did not affect his right to recover for injuries to his property caused by defendant’s negligence.

We must again call the attention of counsel to the proper form of assignments of error in an appeal from the judgment of the Superior Court, as recommended in Mellick v. Penna. R. R. Co., 203 Pa. 457. In the present case, the first, second and third assignments merely allege 'error upon the part of the trial court, and not by the Superior Court. The fourth assignment does specify error by the Superior Court in not sustaining the assignments of error filed in that tribunal, but it includes eight assignments under the one head, instead of assigning the overruling of each assignment separately. This is not in accordance with the practice recommended in Mellick v. Penna. R. R. Co., 203 Pa. 457, and is a violation of rule 29, which requires each error relied on to be specified particularly and by itself. The last two assignments do allege error, in the affirmance by the Superior Court of the judgment of the court of common pleas.

As to the main question raised, — the relation between a livery stable keeper and one who hires from him a horse and carriage, we have no doubt but that it is that of bailor and bailee, and that the contract between them for the hire and use of the chattels constitutes a bailment. In 1 Bouvier’s Law Diet. (Rawle’s ed., 1897) 213, bailment is defined as “ a delivery of something of a personal nature by one party to another, to be held according to the purpose or object of the delivery, and to be returned or delivered over when that purpose is accomplished.” In Schouler on Bailments (3d ed., 1897), sec. 130, it is said: “In the bailment for hired use, the bailor, technically styled the ‘letter/ shifts over into the party entitled to recompense, while the hirer, in turn becomes bailee. This bailment .... contemplates the temporary beneficial use of a chattel which the bailee must eventually return. . . . Our reports furnish few cases of consequence under this head, save in the instance of hiring a horse or carriage.” In sec. 137 the author still discussing bailments for hire, further says: “Let us take, for example, a case by far the most familiar under this head to English and American courts, namely, that of a horse hired for use.”

In the text-books treating of the law of bailments, constant reference is made to contracts for the hiring of horses and vehicles, as illustrating the contract of bailment. See, for example, Edwards on Bailments (3ded., 1893), sec. 373, and Van Zile on Bailments (2d ed., 1908), sec. 119.

The weight of authority also seems to sustain the proposition that the negligence of a bailee for hire is not to be imputed to the bailor. In the work just quoted (Van Zile), one of the latest on the subject, in sec. 128, it is said: “The bailee does not stand in the place of the bailor; he does not represent him in such a relation as would render the bailor liable for his negligent acts, or for the negligent acts of his servants or agents; and so, while in an action brought by the bailee against third parties for injuries to the property, the third party may defend in the action upon the ground of contributory negligence upon the part of the bailee, his servants or agents; in an action by the bailor, who is the owner of the property, against a third party for injury to the bailment, the negligence of the bailee, or his servants or agents, would be no defense and would not prevent a recovery, for the reason that such negligence is not imputable to the bailor.”

And in Edwards on Bailments (3d ed., 1893), sec. 392, it is said: “The hirer of wagons, or carriages and horses, receiving them into his custody to be used by him at his pleasure, becomes a bailee, and is in no sense a servant of the owner. He is responsible to the owner for the reasonable care of them, and to third persons for any negligence of his servants in the use of them. He is liable to third persons to the same extent as if he were the actual owner of the vehicles and teams used by him.” And again, in 1 Thompson on Negligence (1901), sec. 512, it is said: “Unless the principles upon which the courts have at last settled have been grossly misconceived, the negligence of a bailee or his servants is not imputable to his bailor.” As far back as the case of Bard v. Yohn, 26 Pa. 482, Justice Knox stated the law as follows (p. 489): “If one lets or hires to another a horse to be used exclusively for the purposes of the latter, the owner of the horse is in nowise responsible for the negligent manner in which the horse may be used.”

There is a difference where the owner sends a driver to manage and control the team and vehicle, for in so doing the owner retains the control, and may well be held accountable for the action of the driver, his servant and agent. But in the present case no driver was furnished and the hirer assumed the care and control of the horse. There was no relation of master and servant, or of principal and agent between the hirer and the liveryman, and the latter cannot be held responsible for the negligence of the former. Each must recover in his own right, if at all, and each must stand upon his own ground. Had Lantz, the hirer, brought suit and shown negligence by the defendant, and no negligence upon his own part, he could have recovered for damage to himself, but not for damage to the horse or vehicle. His right of action depended in no way upon that of the present plaintiff, nor does the right of recovery in the present action depend upon the right of the bailee to recover.

Counsel for appellant further contend that the plaintiff did not present sufficient evidence of negligence to justify the submission of the case to the jury. The record shows that plaintiff relied upon three witnesses to establish negligence. One testified in substance, that the horse was struck by the tender of an engine backing up towards the yard. The engineer gave no signal, did not ring the bell and did not blow a whistle. There was no watchman at the crossing nor any electric bell. There is considerable travel at the crossing. It is one of the busiest streets in town. The engine was traveling, in witness’s judgment, fifteen or twenty miles an hour. It was going so fast that it ran 300 or 400 feet after they hit the rig before they could get it stopped.

Another witness said that he was in the buggy with Lantz; that there was no warning given of the approach of the engine to the crossing, either by blowing the whistle or ringing the bell, and that there was no flagman nor electric bell at the crossing. The crossing was on the extension of Main street in the borough of Butler at a point where there is a great deal of travel. The engine was traveling fast and it went on after it struck the horse, 300 or 400 feet before it came to a stop. Another witness testified that he was on the opposite side of the crossing watching the locomotive as it approached, and heard no whistle or bell. It thus appears that the evidence for the plaintiff was not merely negative. It was positive, and was given by witnesses who alleged that they were in a position to hear, and were listening and would have heard, had the signals been given. This in connection with the testimony as to the speed of the locomotive, was sufficient to take the case to the jury, on the question of defendant's negligence. The credibility of the witnesses was for the jury.

The assignments of error are all dismissed, and the judgment of the Superior Court is affirmed.


text:
    Wolcutt v. Erie Coal & Coke Company, Appellant.

      Negligence — Master and servant — Mines and mining — Mine foreman —Mine superintendent — Fellow servant — Act of May 15, 1893, P. L. 52.
    While a mine foreman is a fellow servant of the miners employed in the mine, yet if the company which employs him makes him also the superintendent of the mine, and through his negligence the roof of an entry falls and injures a miner, the company will be liable in damages for his negligence to the person injured.
    Argued Oct. 11, 1909.
    Appeal, No. 80, Oct. T., 1909, by defendant, from judgment of C. P. Butler Co., June T., 1906, No. 10, on verdict for plaintiff in case of William W. Wolcutt v. Erie Coal & Coke Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ormerod, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,500. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      T. C. Campbell, with him A. M. Christley, for appellant.—
    The courts have held that the legislation requiring a mine foreman is in the interest and for the protection of the miners; that the mine foreman is a creature of the legislature, selected in obedience to law, and the act requires the owner of the mine, nolens volens, to employ him; and that he is a fellow servant of the miners, and if accidents occur which can be traced to the negligence of the mine foreman, the owner is not liable: Redstone Coke Co. v. Roby, 115 Pa. 364; Haley v. Keim, 151 Pa. 117; Hall v. Simpson, 203 Pa. 146; Del., etc., Canal Co. v. Carroll, 89 Pa. 374; Reese v. Biddle, 112 Pa. 72; Lineoski v. Coal Co., 157 Pa. 153; Gulla v. Lehigh Valley Coal Co., 28 Pa. Superior Ct. 11; Brick v. Rochester etc., R. R. Co., 98 N. Y. 211; Ross v. Walker, 139 Pa. 42; Ricks v. Flynn, 196 Pa. 263.
    January 3, 1910:
    Where an employee occupies a dual character he is a fellow servant and the employer is not liable to his coworkers for his negligence, unless the negligence related to a duty imposed upon the employer: Casey v. Paving Co., 198 Pa. 348.

      Thomas H. Greer, with him John M. Greer and John B. Greer, for appellee.
    The act is evaded when the operator divides the time of the person employed, compelling him to act in two capacities — that of inside overseer, or mine foreman, and superintendent.
    Whether or not a person occupying a given position in the performance of certain work is a fellow servant, or a vice principal of the defendant, is a question for the jury: Mapes v. Packing Co., 31 Pa. Superior Ct. 453.
   Opinion by

Mr. Justice Mestrezat,

This is an action of trespass brought by the plaintiff to recover damages for injuries which he sustained on September 21, 1904, while employed in the defendant’s coal mine in Butler county. The defendant company is the owner and operates a coal mine in that county employing from 120 to 125 men. The plaintiff was employed as a trip rider, and when riding into the mine in the main entry a portion of the roof of the mine fell on him, breaking his leg. The plaintiff alleges that the defendant was negligent in not removing the loose rock which fell or in not supporting it by timbers so that it would be safe. The case was submitted to the jury which rendered a verdict in favor of the plaintiff, and judgment having been entered thereon, the defendant has taken this appeal.

The defendant sets up as a defense that it had employed a mine foreman in the mine as required by the Act of May 15, 1893, P. L. 52; that it was the duty of the mine foreman under the act to keep the roof of the entry in safe condition; that the mine foreman was a fellow servant of the plaintiff and if there was negligence resulting in injury to the plaintiff, it was the negligence of a fellow servant for which the defendant was not responsible. It appears from the evidence that prior to May 1, 1904, the defendant had in its employ a mine foreman and a superintendent, and on or about that date the superintendent left the service of the company. The defendant alleges that in April, 1904, one George Mitchell was appointed by the board of directors as mine foreman and was so employed from the date of his appointment until the time the plaintiff was injured in September, 1904. The defendant’s superintendent remained in the employ of the company until June 11, 1904, when he left, and thereafter it is alleged that Mitchell, the mine foreman, performed the duties of superintendent in addition to those of mine foreman. On the trial of the case the plaintiff offered testimony to show that Mitchell was the superintendent of the mine and performed the duties incident to the position; while the defendant company contended and produced testimony tending to show that Mitchell was a duly certified mine foreman and was employed as such in its mine at the time the plaintiff received his injuries. The learned trial judge charged the jury that if they found that Mitchell was employed as mine foreman alone there could be no recovery, as the law imposed upon the mine foreman the responsibility for negligence in providing for the safety of the miners; but that if they found that Mitchell was employed in the dual capacity of superintendent and mine foreman they were to determine whether the negligence which resulted in the injuries to the plaintiff was that of Mitchell as mine foreman or as superintendent. The testimony was ample to justify the jury in finding that Mitchell was the superintendent of the mine, and also that he performed some of the duties of a mine foreman and possibly that he was a duly certified mine foreman and was employed as such in the defendant’s mine at the time of the accident to the plaintiff.

The Act of May 15, 1893, P. L. 52, is entitled, “An act relating to bituminous coal mines, and providing for the lives, health, safety and welfare of persons employed therein.” It is very comprehensive and is intended, so far as legislation can do so, to protect the men who are employed in the bituminous coal mines of the state. For this purpose, it imposes specific duties upon the owner and upon certain employees engaged in the mining operations. The paramount purpose is to protect the miner while he is engaged in the mines, and to that end provides in detail the duties to be performed by the employees and those engaged in the mine who have control of its operations. To carry out the purpose of the act, art. 6, sec. 1, requires the operator or superintendent to employ “ a competent and practical inside overseer .... to be called mine foreman,” who “shall devote the whole of his time to his duties at the mine when in operation,” and defines his duties, some of which are to keep a careful watch over the ventilating apparatus, the airways, and traveling ways, to remove dangerous coal, overhead slate and rock on the traveling and hauling ways, and to see that sufficient props, caps and timbers are sent to the mine as required. Section 8 of the article requires a record book to be kept at all mines which is to be provided at the expense of the commonwealth and in which the mine foreman is required to enter a report of the condition of the mine, signed by himself, “which shall clearly state any danger that may have come under his observation during the day, and shall also state whether he has a proper supply of material on hand for the safe working of the mine, and whether all requirements of the law are strictly complied with.” There are other duties which he is required to perform by the act but which are immaterial in this case except to show generally the duties required to be performed by him.

The act also enjoins certain specific duties on the fire boss, the miners, the drivers, the trip riders, the engineer, the fireman, and others engaged in operating the mine.

Article 22, sec. 1, of the act, declares that the term “superintendent” means the person who shall have, on behalf of the operator, immediate supervision of one or more mines. Section 1 of art. 7 prohibits the superintendent from obstructing the mine foreman or other officials in the fulfillment of any of their duties required by the act. The same section requires the superintendent, on behalf and at the expense of the operator, to keep on hand in the mine at all times a supply of materials and supplies required to preserve the health and safety of the employees as ordered by the mine foreman and required by the act; he is also required at least once a week to examine and countersign all reports entered in the mine record book “and if he finds that the law is violated in any particular, he shall order the mine foreman to comply with its provisions forthwith.” Some other duties as to the internal workings of the mine are imposed upon the superintendent, his general duties, however, being to supervise the mine on behalf of the operator or owner.

By this reference to the statute, it will be observed that the legislature has attempted to protect the health and safety of the miners, in so far as it can be done, by defining the duties of the parties engaged in operating the mine. These duties are obligatory, and a neglect or refusal to perform them is made a misdemeanor by art. 21 of the act punishable by fine or imprisonment, and a right of action against the owner or operator is given to any party who is injured by a failure to comply with the provisions of the act by the owner, operator or superintendent.

The mine foreman is required to be “a competent and practical inside overseer,” and his duties, as defined by the act, are to be performed on the inside, and not on the outside of the mine. The internal workings of the mine are in his control and subject to his direction and management. His duty, in a word, is to see that the interior of the mine is kept in a proper and safe condition so as not to endanger the health, safety or lives of the miners. In this position he is supreme, and the superintendent, who is the representative of the owner, cannot interfere with him in the discharge of Ms duties. WMle his powers are extensive and ample in regulating and controlling the internal operations of the mine so as to protect those employed therein, yet he is in no sense the agent or representative of the owner of the mine. He is, like others working in the mine, an employee of the owner but with specific, statutory duties to perform. His position is thus defined by Mr. Justice Paxson delivering the opinion of this court in Delaware & Hudson Canal Co. v. Carroll, 89 Pa. 374, when speaking of a mining boss under the mine ventilation act of 1870, similar in tMs respect to the act of 1893 (p. 382): “There is no room for the allegation that a mining boss (mine foreman) under the mine ventilation act of 1870 is an agent of the mine owner or a co-employer. He is clothed with no powers of engaging and discharging miners and laborers at pleasure. He is merely a fellow servant with the miner. He is nowhere in the act designated as the agent of the owner of the mines. His duties are specified in the same manner that the duties of the engineer are specified in the eleventh section, and as the duties of other employees are defined in various other sections. He has no general power of control. His duties are confined to special matters.” We have uniformly held that a mine foreman is a fellow servant of the other employees engaged in the mine, and in none of our cases has it been suggested that he is a representative or agent of the owners. Being a fellow servant of the other laborers in the mine, the owner is not liable for injuries resulting to them by neglect of the foreman to perform Ms statutory duties. It may therefore be admitted that if Mitchell was a duly certified mine foreman and was engaged only as such in tMs mine at the time the plaintiff was injured, and the plaintiff’s injuries resulted from the foreman’s negligence, the defendant company would not be liable.

But the jury has found that Mitchell was, at the time the plaintiff was injured, acting as superintendent as well as mine foreman. The defendant contends, however, that conceding he was acting in such dual capacity, it was Ms duty as mine foreman and not as superintendent to have removed the overhead rock in the haulage way or protected it by props; and that his negligence or refusal to perform this duty being in his capacity as mine foreman the defendant company is not responsible for his negligence. With this contention we do not agree. The duties imposed by the act on the mine foreman do not relieve the superintendent from the duties which he owes to the employees of the mine. When the owner employs a certified mine foreman and puts him in charge of the internal workings of the mine, he has done all that the law requires him to do and he is not required through his superintendent to inspect and look after the interior of the mine. The law presumes that the certified foreman is fully competent, more so even than the superintendent or the owner, to keep the mine in proper and safe condition, and hence it does not impose the further and additional duty on the owner of requiring the superintendent to look after the interior of the mine, and hold him responsible for the negligence of the superintendent in failing to perform such duty. If, therefore, the owner had placed Mitchell, a certified mine foreman, in charge of the mine, and if he, as the act enjoined, had devoted “the whole of his time to his duties at the mine when in operation,” the defendant company would be relieved from liability for the injuries sustained by the plaintiff. But here we have a different state of affairs. Assuming that the defect in the roof arose from the negligence of Mitchell, and that it was his duty to remove it, the existence of the defect was within the knowledge not only of the mine foreman but that of the superintendent, the representative of the owner. Suppose the positions of mine foreman and superintendent had been filled by different parties, and the knowledge of the defect had come not only to the foreman but also to the superintendent, and the latter had knowledge that the former had not performed his duty and removed it, would it not have been the duty of the superintendent to have taken the necessary steps to have remedied the defect? In other words, when the superintendent knows that the mine foreman has, for any reason, become unfit to perform his duties, or is negligent in the performance of them and permits the mine to become dangerous and unsafe, is it not the superintendent’s duty to take the necessary steps to remove the danger and place the mine in a safe condition? This question is answered and the duty is imposed by art. 7, sec. 6, of the act of 1893 in which, as we have seen, it is provided that the superintendent shall examine and countersign all reports entered in the mine record book, “and if he finds that the law is being violated in any particular, he shall order the mine foreman to comply with its provisions forthwith.”

The act does not relieve the owner from liability for an unsafe mine except when he complies strictly with it, and then it does not relieve him if he has knowledge through his superintendent that the mine foreman is incompetent and that the mine is unsafe. The statute provides the remedy, and it is incumbent upon the owner when, through his superintendent, he finds the existence of unsafe conditions in the mine to proceed to have these conditions removed in the manner pointed out in the statute. If the roof in the haulage way was defective and Mitchell had knowledge of it, as the evidence justified the jury in finding, the superintendent, representing the owner, had knowledge of the defect and of the neglect of the foreman to remove it. If Mitchell as mine foreman neglected his duty in removing the defect, it is clear that if another party had been superintendent and had had this knowledge, it would have been his duty to have taken immediate steps to remove it and thereby protect the employees in the mine. Mitchell, acting in a dual capacity, his knowledge of the defect in the roof of the haulage way was not only as mine foreman but as superintendent, and in the latter capacity, the defendant is liable for his failure to remedy the defect which caused the injury to the plaintiff.

The conclusion we have reached places no hardship upon the owners of mines. The act protects them by imposing duties upon the mine foreman whom we hold to be a fellow servant with the other laborers in the mine, and for whose negligence the owner is not responsible. If instead of placing the internal operations of the mine under the supervision and control of an employee whose duties are prescribed by statute and the performance of which fully protects the miners and relieves the owner from liability for injuries to the other employees, the owner puts his superintendent in charge of the interior of the mine, he must assume responsibility for the latter’s negligence if it results in injury to another employee. By placing his superintendent in charge of the mine, the owner is at once notified of its unsafe condition, and. if the mine foreman, although the same person as the superintendent, permits the continuance of such condition, the owner must be treated as failing in his duty to remove the defect, and is thereby liable for the injury which it occasions.

The judgment is affirmed.


text:
    Smathers v. Pittsburg & Butler Street Railway Company, Appellant.

      Negligence — Street railways — Collision between car and wagon — Duty to “ stop, look and listen ” — Crossing.
    1. It is the absolute duty of a traveler or the driver of a team at the intersection of two city streets upon which is laid a line of street railway to look immediately before going upon the tracks, and failure to do so is negligence per se. If when he looks he sees an approaching car so near as to make an attempt to cross dangerous, it is his duty to stop; or, if when he looks at the edge of the tracks his view is obstructed so that he cannot see it then becomes his duty to listen, and under some circumstances it may be his duty to stop as if when he looks and listens he still is in doubt about the location and movement of the car. If in any of these situations he fails in the performance of the duty required he is guilty of contributory negligence and cannot recover.
    2. In such a case no question can arise as to the proper place to look or whether there is a better place as in steam railroad grade crossing cases, because the settled rule is that the place to look is immediately before going upon the tracks. What the driver of a team is required to do after looking depends upon what he sees when he looks. Whether he failed to perform his duty under the circumstances is sometimes a question of law for the court and sometimes of fact for the jury. If when he looks he sees a car so near as to make the attempt to cross dangerous and notwithstanding he attempts the crossing and a collision results he is so clearly guilty of contributory negligence that the court should say so as a matter of law. He can take no close chance except at his peril. If, however, when he looks he sees a car so far distant that in the exercise of ordinary prudent judgment he is justified in concluding that he can safely make the crossing and attempts to do so, it is for the jury to determine whether under the circumstances he should have stopped before attempting to drive over the tracks.
    3. In an action by a wife against a street railway company to recover damages for the death of her husband, it appeared that at the time of the accident plaintiff and her husband were driving in a buggy approaching a crossing, the husband keeping a lookout in one direct tion and the wife in another. Both continued to look until the head of the horse was at the edge of the tracks. As the husband looked, he then saw for the first time a car rapidly approaching over an elevation in the street which obstructed a further view from the crossing. The car was running at an excessive rate of speed. The deceased immediately turned the head of the horse and attempted to drive along side of the track. Neither the horse nor the buggy were actually on the track, but the front wheel of the buggy was close enough to be caught by the overhang of the car. Held, that the question of the deceased’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Oct. 11, 1909.
    Appeal, No. 119, Oct. T., 1909, by defendant, from judgment of C. P. Butler Co., Sept. T., 1908, No. 31, on verdict for plaintiff in case of Araminta Smathers v. Pittsburg & Butler Street Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Taylor, J., specially presiding.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      January 3, 1910:

      T. C. Campbell, with him A. E. Beiber, for appellant.
    The deceased was guilty of contributory negligence: McCracken v. Traction Co., 201 Pa. 378; Dryden v. R. R. Co., 211 Pa. 620; Ehrisman v. Ry. Co., 150 Pa. 180; Wheelahan v. Traction Co., 150 Pa. 187; McPhillips v. Traction Co., 19 Pa. Superior Ct. 223; Gilmore v. Traction Co., 26 Pa. Superior Ct. 97; McCartney v. Traction Co., 27 Pa. Superior Ct. 222; Omslaer v. Traction Co., 168 Pa. 519; Kinter v. R. R. Co., 204 Pa. 497; Keller v. Ry. Co., 35 Pa. Superior Ct. 488; Lohrey v. Penna. R. R. Co., 36 Pa. Superior Ct. 287; Burke v. Traction Co., 198 Pa. 497; Moser v. Traction Co., 205 Pa. 481; Houston v. Traction Co., 28 Pa. Superior Ct. 374.

      John M. Greer, with him Thomas H. Greer and John B, Greer, for appellee.
    -The rule to stop, look and listen is not to be inflexibly applied to foot passengers or others crossing a street railway, as enunciated in the following cases: Ehrisman v. Railway Co., 150 Pa. 180; Carson v. Fed. St., etc., Ry. Co., 147 Pa. 219; Gilmore v. Pass. Railway Co., 153 Pa. 31; Kestner v. Pittsburg & Birmingham Traction Co., 158 Pa, 422; Jackson v. Pittsburg, etc., Traction Co., 159 Pa. 399.
   Opinion by

Mr. Justice Elkin,

In the presentation of this case there has been a confusion of the stop, look and listen rule and the rule which imperatively requires the driver of a team to look for an approaching car immediately before driving upon the tracks of a street railway at a right-angled crossing of intersecting streets. The first rule applies to public crossings over what are commonly known as steam railroads, while the second relates to the dut3>of a traveler as he approaches the tracks of a street railway laid upon a public street. The degree of care required is not the same in both instances, and our cases have never held that it was. The syllabi in some of the earlier eases do state that it is the duty of a traveler, about to drive across a street railway, to stop, look and listen at the edge of the tracks and his neglect to do so is negligence pér se. This appears in Ehrisman v. Passenger Railway Company, 150 Pa. 180, and in Wheelahan v. Traction Co., 150 Pa. 187. The most casual reading of the opinions in these cases will show that the syllabi did not accurately state what the court decided as to the application of the stop, look and listen rule to street railway crossings. These cases only held that the rule is applicable in part to street railways, but the distinction as to the duty of the traveler in each class of cases was clearly pointed out. In Omslaer v. Traction Co., 168 Pa. 519, it was said that so much of the rule as requires the traveler to look and listen for an approaching car before going upon the tracks is applicable to street railways, but that there is no settled rule which requires him to stop before attempting the crossing. The rule as applicable to the facts of that case was properly stated, but the duty to listen is not always imperative and depends upon circumstances. If when he looks bis view is obstructed so that he cannot see, it then becomes his duty to listen. What was really decided in these cases and in the long line of cases which follows was that it is the absolute duty of a traveler or the driver of a team at the intersection of two city streets upon which is laid a line of street railway to look immediately before going upon the tracks, and failure to do so is negligence per se. If when he looks he sees an approaching car so near as to make an attempt to cross dangerous, it is his duty to stop; or, if when he looks at the edge of the tracks his view is obstructed so that he cannot see it then becomes his duty to listen, and under some circumstances it may be his duty to stop as if when he looks and listens he still is in doubt about the location and movement of the car. If in any of these situations he fails in the performance of the duty required he is guilty of contributory negligence and cannot recover. The one positive and imperative duty always required under such circumstances is to look when the tracks are reached and immediately before attempting the crossing. Failure to perform this absolute duty will defeat a recovery under the authority of all our cases. In such a case no question can arise as to the proper ¡place to look or whether there is a better place as in steam railroad grade crossing cases, because the settled rule is that the place to look is immediately before going upon the tracks. What the driver of a team is required to do after looking depends upon what he sees when he looks. Whether he failed to perform his duty under the circumstances is sometimes a question of law for the court and sometimes of fact for the jury. If when he looks he sees a car so near as to make the attempt to cross dangerous and notwithstanding he attempts the crossing and a collision results he is so clearly guilty of contributory negligence that the court should say so as.a matter of law. He can take no close chance except at his peril. If, however, when he looks he sees a. car so far distant that in the exercise of ordinary prudent judgment he is justified in concluding that he can safely make the crossing and attempts to do so, it is for the jury to determine whether under the circumstances he should have stopped before attempting to drive over the tracks. In the present case we have concluded after a careful examination of the record that whether the deceased husband performed the duties required of him by law was a question of fact for the jury. There was testimony to show that as the horse and buggy approached the crossing the husband kept a lookout for an approaching car in one direction and the wife in the other. Both continued to look until the head of the horse was at the edge of the tracks. Up to this point they did all they were required to do. The contention that the driver should have stopped at some place along the intersecting street where he could have seen the approaching car, or if there was no such place along the street that it was his duty to get out of the buggy and walk ahead of his horse to a point where he could see, is without merit as applied to the case at bar. No such duty is required of the driver of a team at a street railway crossing as has been hereinbefore pointed out. The testimony shows that both husband and wife continued to look until the head of the horse had reached the tracks. As he looked he then saw for the first time the car rapidly approaching over an elevation in the street which obstructed a further view from the crossing. The car was running at an excessive rate of speed through the borough and seeing his danger he immediately turned the head of the horse and attempted to drive alongside of the track so as to avoid the collision. He was too late, and received the injuries from which death resulted. Neither the horse nor the buggy was on the track at the time of the accident, but the front wheel was close enough to be caught by the overhang of the car. Certainly under these circumstances it was at least for the jury to say whether he was guilty of contributory negligence. The learned court below submitted the questions of negligence and of contributory negligence to the jury in a charge as favorable to appellant as the facts warrant and the law requires. We find no reversible error in the submission.

Judgment affirmed.