author: Mr. Justice Brown,

text:
    Commonwealth v. Racco, Appellant.

      Criminal law — Murder—Cross-examination of prisoner — Credibility.
    1. Where a prisoner indicted for murder takes the stand on his own behalf, he may be asked on cross-examination, in order to test his credibility, whether he had not been convicted and sentenced to prison for larceny, assault and battery and wounding, and for obtaining money under false pretenses; and if he answers no, it may be shown by other witnesses, for the purpose of contradicting him and impeaching his credibility, that he had made declarations to the effect that he had been convicted and sentenced for such crimes.

      2. As the Pennsylvania statuté permitting a prisoner to testify imposes no limit upon the scope of his cross-examination, the subject is largely within the discretion of the trial judge, and unless such discretion is so abused that substantial injury results to the prisoner, it will not be reviewed by the appellate court.
    3. Although the record is the best, and sometimes the only competent evidence of a conviction, yet when it is merely collateral to the main issue, and arises only as affecting the credibility of the witness, he may testify to it, especially when of all others he knows the exact truth, without regard to the record. Buck v. Com., 107 Pa. 486, overruled.
    4. Testimony of a witness that the prisoner had confessed to him the commission of other crimes, is not admissible to establish the prisoner’s guilt under the indictment on which he is being tried; but if he takes the stand on his own behalf, and denies on cross-examination that he had committed such other crimes, the testimony as to his confession of such crimes is admissible to impeach his credibility.
    Argued April 26, 1909.
    Appeal, No. 82, Oct. T., 1909, by defendant, from judgment of O. & T. Lawrence Co., June T., 1908, No. 1, on verdict of guilty in case of Commonwealth v. Rocco Racco.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Indictment for murder. Before William E. Porter, J., specially presiding.
    At the trial and from the record it appeared that the prisoner was indicted for the murder of Seeley Houk, a game warden in Lawrence county. The prisoner took the stand on his own behalf and on cross-examination was asked whether he had not been convicted and sentenced for larceny, assault and battery, wounding, and obtaining money under false pretenses. To all of which he answered, no. [6-16]
    F. P. Dimaio, a detective, was permitted under objection and exception to testify that the prisoner had confessed to him the commission of the crimes as to which he had been cross-examined. [17]
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Errors assigned were (6-17) rulings on evidence, quoting the bill of exceptions.

      May 24, 1909:

      H. K. Gregory, of Gregory & Dickey, and A. W. Gardner, for appellant.
    The defendant on offering himself as a witness may not on cross-examination be inquired of former convictions: People v. Crapo, 76 N. Y. 288; Com. v. Craig, 19 Pa. Superior Ct. 81; Buck v. Com., 107 Pa. 486; Com. v. House, 6 Pa. Superior Ct. 92; Elliott v. Boyles, 31 Pa. 65; Com. v. Pioso, 19 Lanc. L. R. 145.
    The testimony of detective Dimaio was clearly not competent : Com. v. Wilson, 186 Pa. 1.

      Charles H. Young, district attorney, and S. L. McCracken, for appellee.
    The cross-examination of the prisoner was proper: Hanoff v. State, 37 Ohio, 178; Brandon v. People, 42 N. Y. 265; LaBeau v. People, 34 N. Y. 223; Turnpike-Road Co. v. Loomis, 32 N. Y. 127; Ryan v. People, 79 N. Y. 593; People v. Clark, 102 N. Y. 735 (8 N. E. Repr. 38); People v. Casey, 72 N. Y. 393; People v. Noelke, 94 N. Y. 137; People v. Hooghkerk, 96 N. Y. 149; Com. v. Reece, 28 Pa. C. C. Rep. 652; Wilbur v. Flood, 16 Mich. 40; Hannah v. McKellip, 49 Barb. 342; Com. v. Barry, 8 Pa. C. C. Rep. 216; United States v. Craig, 4 Wash. C. C. 729.
    The credit of a witness may be impeached by proof that he has made statements out of court contrary to what he has testified at the trial: Schlater v. Winpenny, 75 Pa. 321; Wilson v. Wilson, 137 Pa. 269; Zebley v. Storey, 117 Pa. 478.

      H. K. Gregory, of Gregory & Dickey, and A. W. Gardner, for appellant, in reply.
    The general rule in jurisdictions where there is no statutory limitation is that an accused person testifying in his own behalf is to be cross-examined like any other witness: People v. Tice, 15 L. R. A. 669, 671; Com. v. Bell, 20 Pa. C. C. Rep. 223; Smith v. Hine, 177 Pa. 203.
   Opinion by

Mr. Justice Brown,

We have discovered no reversible error in this record, and but two of the seven questions raised by the nineteen assignments call for any discussion. One of these is as to the right of the commonwealth to ask the prisoner on cross-examination whether he had not been previously convicted of various crimes. He was asked, under objection, whether he had not been convicted and sentenced to prison for larceny, assault and battery and wounding and for obtaining money under false pretenses. When he offered to testify in his own behalf his credibility as an intensely interested witness became at once a question for the jury. It was proper that they should learn whatever might aid them in determining what credit should be given to his testimony, and no one was so able to enlighten them as himself. Under our statute permitting him to testify no restriction was placed upon the limit of his cross-examination. It was, therefore, largely within the discretion of the trial judge, and, unless that discretion was so abused that substantial injury has resulted to the prisoner, the judgment will not be reversed. If he had been formerly convicted of the offenses stated, no one knew so better than himself, and it is not to be pretended that his affirmative answers would not have affected his credibility. If he had answered untruthfully in the negative, the way would have been open to the commonwealth to impeach his testimony by competent evidence of his convictions. Though courts in other jurisdictions and text-writers differ as to the right to ask a witness whether he had been convicted of a crime for the purpose of affecting his credibility, the rule as followed by the lower courts in our state since defendants in criminal cases have been made competent witnesses, has been, according to the observation and experience of every member of this court, to allow such questions to be put to a defendant as were asked this prisoner on his cross-examination. The only exception now to be recalled is Com. v. Pioso, 19 Lane. L. R. 145, in which the court of quarter sessions of Lancaster county, following an expression of Paxson, J., in Buck v. Com., 107 Pa. 486, held that it was improper to ask the defendant whether he had not, a short time before, been convicted of a crime. In Buck v. Com. the question asked the witness was held to have been improper because if he had been convicted of embezzlement the proper evidence of that fact was the record. We do not now approve what was there said, and, if it is to be regarded as an expression of the law, it is overruled. If the matter in issue is a conviction, as it is on a plea of autrefois convict, the best and only-competent evidence is of course to be produced, but when the matter about which a witness is asked, though one of record, is merely collateral to the main issue, and arises in it only as affecting the credibility of the witness, he may testify to it, especially when of all others he knows the exact truth, without regard to the record. The proper rule, followed by the court below, is laid down in Underhill on Criminal Evidence, secs. 60 and 61: “The accused, when testifying in his own behalf, waives many of the peculiar constitutional privileges which belong to him as one accused of crime. It is usually provided by statute that he may be examined and cross-examined ‘as any other witness/ and where such is the case, he will not be permitted to claim any privilege while he is a witness that is not enjoyed by other witnesses. In other words, the rule then is that he cannot claim as a witness the privileges which belong to him solely as the accused. He cannot complain if considerable latitude is allowed on his cross-examination, and, generally, he may be asked on his cross-examination the same questions as any witness. In states where the cross-examination of the accused is not by statute expressly limited to matters brought out on his direct examination, he may be cross-examined, not only upon matters strictly relevant to the issue, but upon those which are collateral and apparently irrelevant, and which are calculated only to test the credibility and weight of his testimony. ... He may be questioned as to specific facts calculated to discredit him. Thus his previous arrest, or indictment, his conviction of a felony, a previous imprisonment in a penitentiary, or house of correction, his prior contradictory statements, disorderly actions, or the commission of offenses similar to that charged, attempts to bribe witnesses, or simulation of insanity, may all be brought out by questions put to him on his cross-examination, to show what credit his evidence should receive.” If the record of the conviction of a crime by a witness is the only evidence to be received of that fact to affect his credibility, in many cases, of which the present is an illustration, his credibility could not be impeached, though it ought to be, for the record may be in a foreign state or country, and not obtainable in time to be used when found to be needed at the trial.

The second question raised by the appellant which needs brief notice is as to the admissibility of the testimony of the detective Dimaio, that the prisoner had confessed to him the commission of other crimes. Such testimony, if offered for the purpose of establishing his guilt under the indictment on which he was being tried, would clearly have been inadmissible: Com. v. Wilson, 186 Pa. 1; but the offer was for no such purpose. It was to impeach the credibility of the appellant. He had been asked whether he had not been convicted of certain offenses, and, having denied that he had been, Dimaio was called to contradict him by showing his admissions to the contrary. The ruling of the court was, in permitting Dimaio to testify, that the witness would have to testify to other convictions than those admitted by the accused on the trial. He admitted but three and denied the rest.

The assignments of error are all overruled, the judgment is affirmed and the record remitted to the court below for the purpose of execution.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    McCullough v. Railway Mail Association, Appellant.

      Practice, C. P. — Appearance—Appearance de bene esse.

    1. An appearance by the defendant cures any defect or irregularity in the service of the writ. The appearance may be either in person or by counsel, but the defendant will also be regarded as having appeared if he give bail to the action, if he file an affidavit of defense, if he make defense before arbitrators or appeal from an award, or if he agree that an amicable action may be entered.
    2. If a defendant wishes to attack the regularity or'sufficiency of the writ, or question the jurisdiction of the court without submitting to the jurisdiction for the trial of the cause on its merits, he may do so by entering an appearance de bene esse for that specific purpose. If the court sustains his contention he is not in court, or subject to the court’s jurisdiction, and the merits of the case cannot be inquired into. If, on the other hand, the court rules against the defendant, he either may take an appeal, or he may consider himself in court, and defend the action on its merits. If he chooses the latter course and files an affidavit of defense and a plea, such action will be regarded as an appearance by him, and he cannot thereafter raise any question as to any irregularity or insufficiency in the service of the writ.

      Insurance — Accident insurance — External bodily injuries.

    3. In an action on a policy of accident insurance to recover damages for the death of a railroad postal clerk, alleged to have been caused by external bodily injuries, the ease is for the jury where the evidence on behalf of the plaintiff was in effect that the deceased was found in a semi-conscious condition in his car after an eighteen miles run alone; that on the following day swellings on his head were discovered by the attending physician, that seven days thereafter the deceased died; that an autopsy by two physicians disclosed a blood clot in the skull in the neighborhood of the swelling; and that in the judgment of the physicians this was produced by external violence, and not by disease.

      Practice, C. P. — Evidence—Motion to strike out.

    4. Where evidence is admitted without objection and no motion is made to strike out the same until after the plaintiff's case in chief is closed, a motion then is made too late.
    Argued April 27, 1909.
    Appeal, No. 359, Jan. T., 1908, by defendant, from judgment of C. P. Crawford Co., Sept. T., 1906, No. 53, on verdict for plaintiff in case of Elizabeth McCullough v. The Railway Mail Association, doing business as National Association of Railway Postal Clerks.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Assumpsit on a policy of accident insurance. Before Holt, P. J., specially presiding.
    From the record it appeared that the court was moved to set aside service of summons on the ground that the defendant was a foreign corporation not doing business in Pennsylvania, and not registered in this state. The court discharged the rule. [1]
    The facts relating to the accident are stated in the opinion of the Supreme Court.
    At the trial after plaintiff had rested, and the defendant had offered testimony, defendant’s counsel made the following motion:
    Defendant’s counsel: I wish to make a motion to strike out the testimony on-the part of the plaintiff. This book I have in my hands, is a copy of the constitution and by-laws, which were offered in evidence yesterday by the plaintiff. By examination of the same I find that sec. 15 of the constitution provides as follows:
    “And in case of any post mortem examination by or on behalf of persons, representatives or beneficiaries, the association shall be given reasonable opportunity to attend and participate.”
    It appearing by the evidence of the plaintiff’s witnesses that an autopsy was held some four hours after the death of Mr. McCullough, and it appearing by the evidence of the plaintiff that she didn’t furnish any notice to the defendant company, and the evidence of a requirement on the part of the company that they did not have notice of the holding of the autopsy not having appeared in the case until after the evidence of the physicians who held the autopsy has been given in court before the court and jury, I now move the court to- strike out that evidence for the reason that the autopsy was held and the evidence furnished in violation of the constitution of the company.
    Plaintiff’s counsel object because it is too late to make such a motion.
    The Court: The evidence relating to the autopsy and the physicians as revealed thereby having been admitted without objection, and no motion to strike out the same made until after the plaintiff’s case in chief was closed, we think the motion comes too late at this time, and the motion is overruled and bill of exceptions sealed for the defendant. [4]
    Defendant presented these points:
    2. That there is not sufficient evidence in this case to justify the- jury in finding that F. A. McCullough’s death was the result of injuries received by or inflicted upon him on December 9, 1905, through external, violent and accidental means. Answer: Refused. [2]

      3. That there is not sufficient evidence to justify the jury in finding that F. A. McCullough received the injuries alleged by plaintiff on December 9,1905, after Dr. Taggert first called upon and visited him on the afternoon of said day at the post office in Salamanca. And if the jury believe the evidence of Dr. Taggert that said McCullough told him at their first meeting on the afternoon of said day, that he, McCullough, had not been injured, and the jury shall further find that said McCullough was at the time of sound mind and memory, then they must under the pleadings in this case find for the defendant. Answer: So much of this point as reads as follows is affirmed: “That there is not sufficient evidence to justify the jury in finding that F. A. McCullough received the injuries alleged by the plaintiff on December 9, 1905, after Dr. Taggart first called upon and visited him on the afternoon of said day at the post office in Salamanca.”
    So much of this point as reads as follows: “And if the jury believe the evidence of Dr. Taggert that said McCullough told him at their first meeting on the afternoon of said day, that he, McCullough, had not been injured, and the jury shall further find that said McCullough was at the time of sound mind and memory, then they must find under the pleadings in this case for the defendant;” is also affirmed with this qualification, that if the jury further find that such statement was the fact. [3]
    4. That under the law and the evidence the verdict must be for the defendant. Answer: This point is reserved. [6]
    Verdict and judgment for plaintiff for $3,340. Defendant appealed.

      Errors assigned among others were (1) discharging rule to set aside service; (2, 3, 6) above instructions, quoting them; (4) ruling on evidence, quoting the bill of exceptions.

      Geo. F. Davenport, with him Otto Kohler, for appellant.
    The service upon the commissioner of insurance was not a valid service upon the defendant association and such service did not bring it within the jurisdiction of the court: Fulton v. Accident Assn., 172 Pa. 117; Bailey v. Williamsport, etc., R. R. Co., 174 Pa. 114.
    May 25, 1909:
    It is respectfully submitted that when the plaintiff seeks to avail herself of the certificate issued by the association, and herself offers in evidence the constitution and by-laws, she ought to be bound by the provisions thereof; and when it is discovered that she has used evidence which was procured in violation of those provisions, it is not too late to strike out said testimony, even though the motion is not made until the next morning. That the plaintiff’s case had closed is no excuse whatever for refusing the motion.
    It is respectfully submitted, that there is not a scintilla of evidence in this case showing that the decedent was injured by any external violence on Saturday, December 9.

      Frank J. Thomas, of Thomas & Thomas, with him Manley O. Brown, for appellee.
    Defendant, by proceeding to trial on the merits of the case, waived its objection to jurisdiction and submitted itself to the jurisdiction of the court, notwithstanding its apparent effort to save an exception to the ruling of the court therein; Lycoming Fire Ins. Co. v. Storrs, 97 Pa. 354; New York & Brooklyn Mining Co. v. Gill, 7 Colo. 100 (2 Pac. Repr. 5); Kronski v. Ry. Co., 77 Mo. 362; Manhard v. Schott, 37 Mich. 234; C. & O. Ry. Co. v. Wright, 50 W. Va. 653 (41 S. E. Repr. 147); Franklin Life Ins. Co. v. Hickson, 197 Ill. 117 (64 N. E. Repr. 248); Kauter v. Fritz, 5 Kan. App. 756 (47 Pac. Repr. 187); Morris v. Miller, 4 Idaho, 454 (40 Pac. Repr. 60); Stephens v. Bradley, 24 Fla. 201 (3 So. Repr. 415); Dailey v. Kennedy, 64 Mich. 208 (31 N. W. Repr. 125); Ruby Chief Mining, etc., Co. v. Gurley, 17 Colo. 199 (29 Pac. Repr. 668).
    The question as to the cause of McCullough’s death, and as to when he received the injury causing the same, was for the jury under the evidence.
   Opinion by

Mr. Justice Mestrezat,

It is a familiar rule of practice in this state that an appearance by the defendant cures any defect or irregularity in the service of the writ. A defendant may appear in person or by counsel. If he appear by counsel, the latter causes his name to be entered on the record. It is not necessary, however, that the defendant should formally appear personally or by counsel to give the court jurisdiction, and to make him amenable to its order, decree or judgment. He will be regarded as having appeared if he give bail to the action, if he file an affidavit of defense to the merits of the cause, if he make defense before arbitrators or appeal from an award, or if he agree that an amicable action may be entered. By taking either of these steps in an action brought against him, the defendant submits himself to the jurisdiction of the court for the trial of the cause on its merits, and is bound by the judgment.

If a defendant wishes to attack the regularity or sufficiency of the service of the writ or question the jurisdiction of the court without submitting to the jurisdiction for the trial of the cause on its merits, he may do so by entering an appearance de bene esse for the specific purpose. This is not such an appearance as will authorize the court to take any steps affecting the merits of the cause. The appearance is for the single purpose of attacking the regularity of the proceeding and the authority of the court to exercise jurisdiction in the cause. The question thus raised is a preliminary one and should be decided before any further steps are taken in the cause. If the decision of the court is favorable to the defendant, he is not in court or subject to its jurisdiction and the merits of the case cannot be inquired into. If, on the other hand, the court rules the preliminary question against the defendant, he has one of two courses to pursue. He may rely upon the position he has taken and attempt to sustain it by an appeal to the proper appellate court; or he may consider himself in court and defend the action on its merits. He is required to select one of the two courses, and having done so he must accept the legal consequences of his action. He cannot deny the jurisdiction of the court, and at the same time take such action to defeat the plaintiff’s claim as will amount to an appearance. By taking the latter course he admits himself in court and must abide by its judgment. He cannot deny the jurisdiction of the court and at the same time defend the cause upon its merits which implies a submission to its jurisdiction. This has long been the settled practice in the state: Lycoming Fire Insurance Co. v. Storrs, 97 Pa. 354; Jeannette Borough v. Roehme, 9 Pa. Superior Ct. 33.

From what has been said it follows that we need not determine the correctness of the trial court’s conclusion in refusing to set aside the service of the writ. The defendant association' entered a conditional appearance for the purpose of moving to set aside the service of the summons and to quash the writ. After the court had refused the motion, the association filed an affidavit of defense and entered a plea in the case. This action must be regarded as an appearance by the defendant and a waiver of any irregularity or insufficiency in the service of the writ.

This was an action' on a beneficiary certificate issued by the association in favor of the plaintiff to recover $3,000, the amount named in the certificate, for the death of the plaintiff’s husband which, as alleged by the plaintiff, was caused by bodily injuries through external, violent and accidental means while he was engaged in the railway postal service of the government. The affidavit of defense denies that McCullough’s death resulted from bodily injuries through external, violent and accidental means, and avers that it was occasioned by cerebral hemorrhage resulting from illness from which he had previously been suffering. This was the issue raised on the trial and submitted for the decision of the jury. The defendant contends that there was no evidence which would warrant the jury in finding that McCullough received bodily injuries on December 9, 1905, the date laid in the statement, which caused his death. This contention was not sustained by the court which held that the evidence, if believed by the jury, was sufficient to show that McCullough did receive bodily injuries on that day. It appears that McCullough complained of a severe headache during the night of December 7 and also on December 8. His services as postal agent were performed on the railway between Youngstown, Ohio, and Salamanca, New York. He went from Youngstown to Salamanca in the forenoon of the day and returned in the afternoon. He made the usual trip on December 7 and 8. On Saturday morning, December 9, he left Youngstown in the mail car for Salamanca. He was accompanied as far as Randolph, New York, by an assistant. From that point to Salamanca, eighteen miles farther east, he traveled alone. At the latter place he was found in the car in a semi-conscious condition. He was taken to a hospital in Salamanca, and on Sunday morning was taken to his home at Meaclville. An examination at his home by the attending physician disclosed a swelling and redness on his head above the right temple, and afterwards two other external marks or swellings were discovered by the nurse or physician. On the following Sunday, December 17, McCullough died. An autopsy was held by two physicians who testified that they found a blood clot in the skull on the side where the swelling had appeared and that the.clot was, in their judgment, produced by external violence and not by disease. The physicians testified that the pains in the head complained of by the deceased were not the usual manifestations of cerebral hemorrhage due to disease and that the symptoms manifested by him were characteristic of brain concussion rather than of apoplexy.

There is no evidence to show that the deceased had received any bodily injury prior to Saturday morning, when he started for Salamanca. He had headache, but it appeared by the evidence that that was accompanied by sickness of the stomach which, it was claimed, produced the pain in the head. The marks of external violence were first discovered on Sunday morning, and if the testimony of the physicians is believed the jury were justified in finding that they produced McCullough’s death. We also think that the jury was justified in its conclusion that the injury to the body took place on December 9 while he was in the postal car. There is no evidence whatever to warrant the finding that McCullough received any external injuries on December 7 or 8. It is true there is no direct testimony that he received his injuries on the mail car from Randolph to Salamanca. It is also true that a witness testified that McCullough told him on Sunday morning that he had not been injured and was not sick, but at that very time he was in a semiconscious condition which discredited his own alleged declarations. He might have received the injuries on Sunday morning which were after-wards discovered on his head and which resulted in his death, but there is no evidence to show that he did receive them at that time. On the other hand, the condition in which he was found in his car at Salamanca would warrant the conclusion that the injuries on his head were caused by some violence in the postal car after he had left Randolph where he separated from his assistant. The physician testified that the swelling resulting from a blow on the head might not be noticeable for some hours after the blow, and that it was possible for paralysis which took place on December 16 to be the result of a blow on December 9. We do not think the court would have been justified in holding that the evidence produced on the trial was not sufficient to warrant the jury in finding that the deceased received the external injuries resulting in his death on December 9, and in directing a verdict for the defendant.

We cannot convict the court of error in refusing to strike out the evidence relating to the autopsy. The reason assigned by the court for the ruling shows that it did not abuse its discretion in declining the defendant’s motion.

The assignments of error are overruled, and the judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Ogontz Avenue.

      Road law — Municipalities — Eminent domain — Opening street — Damages — Non-abutting owner.

    1. An owner of land which does not abut on a newly opened street is not entitled to damages under the constitutional provision requiring compensation to be made for property taken, injured or destroyed, before there has been any physical change of grade on the ground or any actual injury to the property for which damages are claimed.

      2. Where damages are claimed for the opening, widening or change of grade of a street by an owner of land not abutting thereon the injury complained of must be proximate, immediate and substantial; and some right of property, or easement or privilege enjoyed by the owner, or access to his property must be interfered with.
    Argued Jan 12, 1900.
    Appeal, No. 303, Jan. T., 1908, by city of Philadelphia, from order of C. P. No. 5, Phila. Co., March T., 1905, No. 4,088, dismissing exceptions to report of referee In re Opening of Ogontz Avenue from Ruscomb Street to Chew Street.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to report of Louis Brégy, Esq., referee.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to report of referee.

      James Alcorn, with him William J. Yorke and J. Howard Gendell, for appellant.
    In road proceedings the law is very explicit that only an owner of land through which the road passes can claim damages: Railroad Co. v. Lippincott, 116 Pa. 472; Railroad Co. v. Marchant, 119 Pa. 541.
    It is contended that where the property does not abut upon the improvement and where no land is taken in the exercise of the right of eminent domain, some right of way or property belonging to the claimant must be interfered with or affected by the construction or enlargement of the works, highways or improvements: Snyder v. Lancaster, 20 W. N. C. 184; Stork v. Philadelphia, 195 Pa. 101; Mellor v. Philadelphia, 160 Pa. 614; Ladd v. Philadelphia, 171 Pa. 485; Walnut Street Bridge, 191 Pa. 153; Chatham Street, 191 Pa. 604; Lewis v. Homestead Borough, 194 Pa. 199; Melon Street, 182 Pa. 397; Robbins v. Scranton, 217 Pa. 577.
    In these change of grade cases recovery was not permitted until after the construction of the street and the doing of the injury. They do not support the claim of the appellee, or the conclusion of the referee in the present case.

      June 22, 1909:
    In the present case the appellee is not deprived of any right by the opening of Ogontz avenue. His access to and from his property is not interfered with or changed. He never had any right in Ogontz avenue. He has no right in it as an owner of property after it is opened, as none of his property abuts upon the street.
    To permit this appellee, who was not affected by the opening, to present a claim in a proceeding to assess damages for the opening, is introducing a new claimant and one who without the act of 1891, has no standing in such a proceeding. That was not the purpose of the act: Pusey v. Allegheny, 98 Pa. 522; Righter v. Philadelphia, 161 Pa. 73; Clark v. Philadelphia, 171 Pa. 30; Greentree Avenue, 21 Pa. Superior Ct. 177.

      Bertram G. Frazier, with him John W. Frazier, Jr., for appellee.
    Since the adoption of the constitution of 1874 there have been numerous cases which have discussed what constitutes a taking, injury or destruction of private property, and they lay down the principle that for a property to come under this section of the constitution, the said property must be near enough to the enlargement or improvement for the damage to be proximate, immediate and substantial. Some of the cases which follow this principle are Mellor v. Philadelphia, 160 Pa. 614; Plumb’s Appeal, 166 Pa. 336; Snyder v. City of Lancaster, 20 W. N. C. 184; Ladd v. Philadelphia, 171 Pa. 485; Melon Street, 182 Pa. 397; Chatham Street, 191 Pa. 604; Walnut Street Bridge, 191 Pa. 153; Lewis v. Borough of Homestead, 194 Pa. 199; Stork v. Philadelphia, 195 Pa. 101; Robbins v. City of Scranton, 217 Pa. 577.
    Under these cases the rule of law can be said to be well fixed, and is to the effect that the property must be near enough for the damage to be proximate, immediate and substantial and easy of calculation. If it is of the above character it comes within the provision of the constitution.
   Opinion by

Mr. Justice Elkin,

The question to be determined on this appeal is whether the owner of land which does not abut on a newly opened street is entitled to damages under the constitutional provision requiring compensation to be made for property taken, injured or destroyed, before there has been any physical change of grade on the ground or any actual injury to the property for which damages are claimed. It must be conceded that the right of a property owner to recover damages in the nature of compensation for land taken, injured or destroyed by the opening or widening of a public street has been sustained in a long line of cases, although the property injured did not abut on the street. While these cases hold that the property need not abut on the street, the principle announced is that the injury complained of must be proximate, immediate and substantial. It is difficult, perhaps impossible, to reconcile all the cases in which a construction of article sixteen, section eight, of the constitution, has been involved. In the railroad cases it was held that the injuries must be actual, positive and visible, and must be of such certain character as to be ascertained when the railroad was constructed. These cases decide that the injury in the constitutional sense must be in the nature of a legal wrong such as would be the subject of an action for damages at common law, and that the right of action only accrues to an abutting owner who complains. Consequential damages to nonabutting owners are not recoverable in this class of cases. This is the rule of Railroad Co. v. Lippincott, 116 Pa. 472; Railroad Co. v. Ziemer, 124 Pa. 560; Jones v. Railroad Co., 151 Pa. 30; Insurance Co. v. Railroad Co., 151 Pa. 334; Hartman v. Incline Plane Co., 159 Pa. 442; and Willock v. Railroad Co., 222 Pa. 590.

As hereinbefore indicated, the rule applicable to street opening cases is different, and while to the writer of this opinion there does not seem to be any solid ground upon which to distinguish one class of cases from the other, yet the cases do make the distinction, and since both parties to the present proceeding recognize the principle of proximate, immediate and substantial injury as applied to street opening cases, regardless of whether the complaining party is'an abutting or nonabutting owner, it will not be necessary to consider broadly the underlying constitutional question. What constitutes a taking of, or injury to, or destruction of, private property by municipalities in opening, widening and grading streets has been considered in numerous cases by this court. See Mellor v. Philadelphia, 160 Pa. 614; Ladd v. Philadelphia, 171 Pa. 485; In re Melon Street, 182 Pa. 397; In re Walnut Street Bridge, 191 Pa. 153; In re Chatham Street, 191 Pa. 604; Lewis v. Homestead, 194 Pa. 199; Stork v. Philadelphia, 195 Pa. 101; Robbins v. Scranton, 217 Pa. 577.

It should be observed that even in the street opening and change of grade cases it was held that the injury to a non-abutting owner must be proximate, immediate and substantial, else there could be no recovery. In every instance where damages were recovered some right of property, or easement or privilege enjoyed by the owner, or access to his property, was interfered with. A careful examination of these cases will show that when a nonabutting owner claimed damages by reason of the street improvement, the burden always rested on him to show immediate and substantial injury occasioned thereby. Our attention has not been called to a single case in which a nonabutting owner was permitted to recover damages on the ground of an alleged injury to his property when in point of fact there had been no change in the surface conditions, or where access, or right of way or drainage, or some other existing right of property had not been disturbed. In this respect there is a valid distinction between abutting and nonabutting owners. As to abutting owners, the act of 1891 clearly contemplates that all damages shall be assessed in a single proceeding and shall accrue to those persons entitled thereto at the time of the assessment, and not to subsequent purchasers: Sedgley Avenue, 217 Pa. 313. In that case the original owner claimed damages for land actually taken and recovered on the basis of the street being opened to the established grade, although it was not graded until he had parted with his title, and the subsequent purchaser was in possession. But this rule does not apply to a nonabutting owner whose claim for damages rests upon a different basis. The constitution requires compensation to be made for property taken, injured or destroyed. As to abutting owners there is an actual taking within the meaning of the law when the street is ordered to be opened and proper notice has been served upon the property owners affected thereby. The act of assembly provides a method of procedure to determine all questions incidental to the taking of such property as may be necessary for the street improvement, including damages that may result by making or changing the street to the established grade. As to nonabutting owners there can be no claim for property actually taken, and the damages, if any, must be such as result from some consequential injury. If there be no injury, no compensation can be demanded. This is why our cases have held that all such consequential injuries must be proximate, immediate and substantial. An injury cannot be said to be immediate and substantial if there be none at all. In the case at bar the ordinance only provides for the opening and not for the grading of Ogontz avenue. The property of appellee does not abut on the avenue, and the opening of the street on the surface of the land belonging to an adjoining owner cannot in a legal sense injuriously affect the property in question, where the surface conditions remain unchanged. Indeed, it is not contended, that the opening of the avenue causes any injury to the property of appellee, but it is alleged that when filled to the established grade, injuries may or will result. This is too remote a possibility to sustain a present claim for consequential damages to a property not actually taken nor disturbed in any way by opening the street. There is no present injury of any kind, either proximate, immediate or substantial, to the property of appellee and hence no present claim for consequential damages. The appellee, therefore, did not meet the burden resting on him to show such actual injury to his property as is necessary to sustain a claim for damages in the present proceeding.

Judgment reversed.


author: Mr. Justice Potter,

text:
    Cunningham, Appellant, v. Rogers.

      Negligence — Landlord and tenant — Liability of landlord — Baseball park — Fall of grand stand.

    1. The landlord of a baseball park is not liable for damages for personal injuries resulting from the fall of the grand stand, where it appears that the stand was owned by the tenant in possession and had been erected by him before the landlord took title, that the tenancy was continued after the change of ownership, that before the original term had expired a new lease was made to the same tenant, and that the latter continued in exclusive possession and management, without the new owner ever having been at any time in actual possession, or ever having the right to possession.

      Appeals — Assignments of error — Evidence.
    2. Assignments of error to the admission of evidence will not be considered where the answers to questions and papers admitted are not set forth in the assignments.
    Argued Jan. 21, 1909.
    Appeal, No. 126, Jan. T., 1908, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1903, No. 1,996, on verdict for defendants in case of George L. Cunningham, by his next friend and mother, Mary E. Cunningham, and Mary E. Cunningham v. John I. Rogers and Alfred J. Reach.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Willson, P. J.
    The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for defendants. Plaintiffs appealed.

      Errors assigned were (1-4) various rulings on evidence but not setting forth in the assignments the answers to questions or copies of papers admitted; (5, 6) in giving binding instructions for defendants.

      Isaac Hassler, for appellants.
    A landlord is responsible for an injury caused by the condition of the structure, whether he originally erected it or whether the tenant erected it and then the landlord relet or renewed the lease to him: Kirchner v. Smith, 207 Pa. 431; Brown v. White, 202 Pa. 297; King v. Pedly, 1 A. & E. 822; Gandy v. Jubber, 5 B. & S. 78; Sandford v. Clarke, L. R. 21 Q. B. D. 398; Fleischner v. Real Estate & Investment Co., 25 Ore. 119 (35 Pac. Repr. 174); Albert v. State, 66 Md. 325 (7 Atl. Repr. 697); Nunnelley v. Southern Iron Co., 94 Tenn. 397 (29 S. W. Repr. 361); Campbell v. Portland Sugar Co., 62 Me. 552; Van Winkle v. American Steam-Boiler Co., 52 N. J. Law, 240 (19 Atl. Repr. 472); Fox v. Buffalo Park, 163 N. Y. 559 (57 N. E. Repr. 1109); Swords v. Edgar, 59 N. Y. 28; Pittsburg v. Grier, 22 Pa. 54; Stewart v. Jermon, 5 Pa. Superior Ct. 609.
    June 22, 1909:

      John G. Johnson, for appellees.
    The grand stands involved in this case were trade fixtures erected by the tenant. That the mere grant of a new lease to a tenant in possession does not affect the title to trade fixtures was expressly decided by this court in the recent case of Radey v. McCurdy, 209 Pa. 306.
    In Schott v. Harvey, 105 Pa. 222, it was held that a tenant in possession of a building is practically the owner. His control is absolute, and he can determine its uses and how the business shall be conducted.
   Opinion by

Mr. Justice Potter,

This was an action of trespass brought to recover damages for personal injuries sustained by plaintiff, on August 8, 1903, by reason of the fall of a portion of the grand stand at the Philadelphia Ball Park. Plaintiff, a minor, was seated beside his father on the upper row of seats at the back of the stand. A balcony or passageway in their rear, which overhung Fifteenth street, gave way under the weight of the crowd and fell into the street, carrying down with it the rear seats and those seated upon them. The father was killed and the son seriously hurt. This suit was brought by the mother and next friend, on behalf of the plaintiff, and also by the mother in her own right, against John I. Rogers and Alfred J. Reach, owners of the premises upon which the grand stand was erected, and it was sought to hold them liable in damages for the negligent construction of the grand stand, and its maintenance in an unsafe condition, to which causes the accident was attributed by plaintiff. Upon the trial the court below directed a verdict for the defendants, upon the ground that the evidence showed that the grand stand belonged to the lessees, and not to the owners of the ground, and also showed that the lessees were in uninterrupted possession of the premises from the date of the erection of the structure that fell, until after it had fallen. Judgment was entered on the verdict, and plaintiff has appealed. There are six assignments of error. The first and second assignments violate rule 31 for the' reason that neither of them contains the answer to the question, admitted after objection. The third and fourth assignments also violate rule 31, for the reason that neither contains copies of the papers offered and admitted in evidence. The fifth assignment is to the action of the trial judge in directing a verdict for the defendants and raises the question of their liability as owners of the premises. It appears from the evidence, that on January 4, 1886, Edward D. O’Kane being the owner of a lot of ground situated between Broad and Fifteenth streets, and Huntingdon street and Lehigh avenue, in the city of Philadelphia, leased the same to the Philadelphia Ball Club, Limited, as a park for the exhibition of games of ball or other athletic sports, for a term of ten years. The ball club went into possession under the lease, and graded the lot, and put up the fixtures necessary to fit it for a ball park. On January 11, 1886, Edward D. O’Kane conveyed the title to the premises to John I. Rogers and Alfred J. Reach, the defendants. The record does not show an assignment of the lease to Rogers and Reach, but the ball club continued as tenants, and, on December 31, 1891j Rogers and Reach indorsed on the lease an agreement to renew for an additional term of ten years from January 1,1896, on the same terms and conditions. On August 4, 1894, all the improvements on the ground were destroyed by fire, and new buildings, including the grand stand where the accident in question occurred, were erected and paid for by the lessees, the Philadelphia Ball Club, Limited. These buildings were insured by the lessees in their own name and subsequently they claimed from the city, damages to the buildings alleged to have been sustained by change of grade. On February 28, 1903, when the original lease had still nearly three years to run under its renewal, Rogers and Reach made a new lease to the Philadelphia Ball Club, Limited, for a term of three years from January 1, 1903, with the privilege of renewal for ten years longer, and under this lease the ball club were in possession at the date of the accident. It appears that Rogers and Reach, the defendants, were never in actual possession of the premises from the time of the original conveyance to them by O’Kane, to the date of the accident. The defense upon which they relied, was that as individuals they had no interest in, or ownership of the grand stand, which broke down, and were in no way responsible for its condition. They were the owners of the ground, but the stands were erected, and maintained, by the Philadelphia Ball Club, Limited. It would seem, therefore, that suit should have been brought against the tenant, and not against the landlord. The general principle is undisputed, that when a landlord lets premises in a dangerous condition, he is liable for the consequences which may result from the condition he permitted to exist. But in the case at bar, the original lease was of a vacant lot, and the tenant erected the structure alleged to be dangerous.

Although a new lease was made in February, 1903, the owners were never in actual possession of the ground, and there is no evidence that the ownership of the improvements passed to them.

When the new lease was made, the original one had nearly three years to run. The landlord therefore had not at that time power, by giving notice, to regain possession of the premises. The new lease was simply substituted for the old one, covering its unexpired term, and there was no time prior to the accident when the lessors were actually in possession, or could lawfully have taken possession.

.This fact, and the additional fact above noted, that the improvements were not the property of the lessors, distinguishes the present case from those cited by the appellant, in which the improvements belonged to the owners of the ground, and where there was a reletting of the premises, after dangerous conditions had arisen. The claim of the plaintiff in this case is based upon the alleged ownership by the defendants of the structure which fell, but no sufficient evidence in support of this claim was offered.

“As regards the liability of landlords to third persons, it may be taken as a general rule that the tenant and not the landlord is liable to third persons for accident or injury occasioned to them by the premises being in a dangerous condition, and the only exceptions to this rule appear to arise where the landlord has either (1) contracted with the tenant to repair, or (2) when he has let the premises in a ruinous condition, or (3) when he has expressly licensed the tenant to do acts amounting to a nuisance:” 2 Woodfall on Landlord and Tenant (1st Am. ed., 1890), *735.

We see nothing in the evidence in this case, to justify the inference that there was any intention to surrender the premises, when the tenant accepted a new lease, during the term of the former lease, and there is an equal lack of testimony to show that the improvements and grand stands, ever became the property of the landlords. Upon the whole record, it is apparent that the responsibility for the condition of the grand stands in this case, rested upon the tenant. The assignments of error are overruled, and the judgment is affirmed.


author: Mr. Justice Mitchell,

text:
    Altdorfer’s Estate.

      Will — Construction—Nearest relatives — Repetition of same words.

    1. While the repetition by a testator of the same words or phrases to which he has previously given a definite meaning will prima facie be presumed to carry the same meaning in the second use, yet this presumption must give way to any indication of a different intent on the part of the testator.

      June 22, 1909:
    2. The testator after leaving his whole estate to his wife, adding “ she has helped to make it, therefore she shall enjoy it,” wrote, “it is my wish .... that my nearest relatives, brother, sister or their children, may they yet live at Kircheim, (if they should be living) .... shall inherit one-half of all the estate my wife may possess at the time of her death .... the other half shall come to the nearest relatives of my wife or if she wants to make a will to any one else she may name she can dispose of one half of all she may leave just as she pleases.” Held, that the words “nearest relatives” as applied to the kin of the wife, were not to be construed in the same sense as the same words as applied to the kin of the testator, but that they should be limited to such as should be properly defined as nearest.
    3. In such a case a sister of the wife takes to the exclusion of nephews and nieces, children of a deceased sister.
    Argued Jan. 13, 1909.
    Appeal, No. 335, Jan. T., 1908, by Anna Katharina Kronmaier, from decree of O. C. Phila. Co., April T., 1908, No. 80, dismissing exceptions to confirmation of inquisition in Estate of Johann Christen Altdorfer, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Petition in partition.
    From the record it appeared that the court decreed that the children of a deceased sister of the half blood of testator’s wife were entitled to share with a sister of the whole blood of the wife in the portion of the estate over which the wife had power of disposition. The wife died intestate after surviving the testator. The terms of the will are set forth in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      Gustavos Remak, Jr., for appellants.

      William Drayton, for appellees.
   Opinion by

Mr. Justice Mitchell,

While the repetition by á testator of the same words or phrases to which he has previously given a definite meaning will prima facie be presumed to carry the same meaning in the second use, yet this presumption must give way to any indication of a different intent on the part of the testator. In the construction of this will, complicated as it is by a want of familiarity with the accurate use of the English language, we cannot ignore a diversity in the circumstances and the apparent intent under which the similar words were used.

After leaving his whole estate to his wife, adding “ she has helped to make it, therefore she shall enjoy it” the testator wrote, “it is my wish .... that my nearest relatives, brother, sister or their children, may they yet live at Kircheim (clearly meaning if they should be living), .... shall inherit one-half of all the estate my wife may possess at the time of her death .... the other half shall come to the nearest relatives of my wife or if she wants to make a will to any one else she may name she can dispose of one-half of all she may leave just as she pleases.” The prominent thought here is that the testator considered the estate as belonging equitably at least to himself and to the wife who had helped him make it and intended that it should finally go equally to the nearest relatives of each. As to his own share he names definitely the relatives, brother and sister, and establishes the right of representation among them by adding “ or their children.” As to these the devise is absolute, and except for what she may have consumed during her life he asserts his wish positively, it is beyond her control by will or otherwise. He defines not only the property he is disposing of but also the persons who are to take it.

As to her share, however, the conditions are different. She has an unlimited power of disposition of it by will, and her relatives get nothing except through her gift or her intestacy. Testator had in mind no special or defined persons who should ultimately take, but only the general idea that they should be such as would represent her. He therefore used-only the general words “nearest relatives” without defining them- as he had in his own case. Under such circumstances the presumption is that he meant such relatives as should properly be defined as nearest. To give effect to this word it was held in White’s Estate, 27 W. N. C. 253, that sisters excluded nephews and nieces, citing and following Locke v. Locke, 45 N. J. Eq. 97, and the decision has been generally acquiesced in.

Decree reversed and partition directed to be made on the principles of this opinion.


text:
    Wilson v. Bryn Mawr Trust Company, Appellant.

      Trusts and trustees — Separate.use trust — Husband and wife.

    1. A gift of real estate to a niece “to and for her own separate use forever ” creates a separate use trust for the benefit of the niece. The fact that the word “sole” is not used in connection with the word “separate” is immaterial.
    2. The most apt word to create such a trust is “separate,” which has a fixed and technical meaning, and which will of itself exclude the marital rights; whereas the same fixed and technical meaning is not attributable to “sole.”
    Argued Feb. 2, 1909.
    Appeal, No. 331, Jan. T., 1908, by defendant, from order of C. P. Montgomery Co., March T., 1908, No. 25, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George B. Wilson v. Bryn Mawr Trust Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Before Swartz, P. J.
    This was an action of assumpsit brought upon a policy of title insurance. In the plaintiff’s statement it was averred that on April 18, 1907, the plaintiff purchased from Charles Henry, Jr., upon terms stated, a tract of land situated in Haverford Township, Delaware county, Pa., containing some thirty-two acres; that on the same date the defendant company, in consideration of a premium paid by him, issued to the plaintiff a policy of title insurance “insuring the said plaintiff from all loss or damage not exceeding the sum of $34,000, which the said plaintiff might sustain by reasons of defects or unmarketability of the title of the plaintiff as owner in fee to “the premises purchased by him; that the title to the said premises was defective and unmarketable and the defect therein was not excepted in the policy; that Charles Henry, Jr., who conveyed to plaintiff, had acquired title from John J. Pinkerton and Sallie, his wife, and that the said John J. and Sallie Pinkerton were not the owners in fee of the land conveyed, with the exception of about a quarter of an acre; that Emily T. Thomas had owned the said tract of land in fee and had devised the same “unto my niece Sallie Pinkerton to and for her own separate use forever;” that no trustee was ever appointed for the said Sallie Pinkerton, who was incapable of ^aliening the same, and that consequently the deed from her and her husband to Charles Henry, Jr., plaintiff’s grantor, passed no title whatever. The statement further averred notice to and demand upon the defendant company and damages alleged to have been sustained by the plaintiff in excess of $34,000.
    In the affidavit of defense the issuing of the policy of title insurance, and the conveyances recited in the statement, were admitted, but the statement that Sallie Pinkerton was not the owner in fee of the entire premises insured was denied, and it was averred that the will of Emily T. Thomas-vested in the said Sallie Pinkerton an absolute estate in fee.
    The court made absolute the rule for judgment for $11,240.99 for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      E. H. Hall and Montgomery Evans, with them Henry M. Brownback, for appellants.
    The creation of a “separate use trust” being one of intention, this case does not present such an intention on the part of the testatrix that the court can as a matter of law so declare: Jamison v. Brady, 6 S. & R. 466; MacConnell v. Wright, 150 Pa. 275; Hood v. Pennsylvania Society, 221 Pa. 474; Murray v. Lowrie, 208 Pa. 1; Stambaugh’s Estate, 135 Pa. 585; Quin’s Estate, 144 Pa. 444.
    While the Married Woman’s Property Act of April 11, 1848, P. L. 536, and others, did not abrogate the equitable separate estate under a separate use trust, and this legislation does not affect the established rules of construction in determining whether a separate use trust is created, and such a trust can be created without naming a trustee since as before those acts were passed, yet the act of 1848 in its terminology describes the title of a married woman in terms that before the act would have been considered apt in declaring a separate use trust.
    June 22, 1909:
    Therefore, it must be borne in mind that words, which, before the act of 1848, could have had no meaning, unless they were intended to create a separate use trust, and which then might have been called an “uncommon expression,” may now amount to no more than a description of the rights of a married woman in her separate legal estate, and, therefore, may have no effect upon the gift which will vest in her as her separate property under the act of 1848, without the restrictions peculiar to the separate estate in equity: Carson v. Fuhs, 131 Pa. 256; Morrison v. Dollar Savings Bank, 36 Leg. Int. 215; Ringe v. Kellner, 99 Pa. 460; Murray v. Lowrie, 208 Pa. 1; Bailey v. Allegheny Nat. Bank, 104 Pa. 425; Rank v. Rank, 120 Pa. 191; McClelland v. Floyd, 52 Pitts. L. J. 163.

      John G. Johnson, with him Maurice Bower Saul and Nicholas H. Larzelere, for appellee.
    The contention of the appellee sustained by the court below is that the will creates a separate use trust for Sallie Pinkerton, and the conveyance by her and her husband conveyed no title to the appellee’s grantor: Jamison v. Brady, 6 S. & R. 466; Snyder v. Snyder, 10 Pa. 423; Scott v. Bryan, 194 Pa. 41; Holliday v. Hively, 198 Pa. 335; Murray v. Lowrie, 208 Pa. 1; Wilbert’s Estate, 166 Pa. 113; Hays v. Leonard, 155 Pa. 474; Iddings v. Iddings, 7 S. & R. 111; Wright v. Brown, 44 Pa. 224.
   Opinion by

Mr. Justice Potter,

The single question raised by this appeal is whether the devise to Mrs. Sallie Pinkerton, in the will of Emily T. Thomas, created a separate use trust. If it did, then the subsequent conveyance by herself and her husband, of the land in question, was obviously void. The clauses of the will to which appellant particularly directs attention are the following:

“Second. I give and bequeath to my sisters Jane Wilson and Susan Downing each the sum of five thousand dollars, unto nephews John A. Wilson, Joseph M. Wilson, Henry Wilson, I. H. Downing and nieces Emily Baldwin, Sallie H. Wilson and Susan D. Wilson each the sum of three thousand dollars, and unto my niece Sallie Pinkerton I give and devise my farm situate in Delaware County to and for her own separate use forever.
“Sixth. I give devise and bequeath all the rest residue and remainder of my estate whatsoever and wheresoever -unto my before named two sisters for their own use forever.
“Seventh and lastly. I nominate constitute and appoint my nephew John J. Pinkerton and friend Samuel Elliott the executors hereof and authorize and empower them or the survivor to dispose of any real estate of which I may die seized either at public or private sale when and as may be deemed expedient and to make execute and deliver all such deeds or assurances in the law as may be required to properly vest the title thereof without any purchaser being liable to see to the application or for the misapplication of the purchase money paid or consideration given therefor.”

It will be noticed that the words here used were, “and unto my niece Sallie Pinkerton I give and devise my farm situate in Delaware County, to and for her own separate use forever.” The words are plain, and upon their face indicate an intention to create a separate use for the benefit of Mrs. Pinkerton. The usual form of expression in such cases is “sole and separate use,” but as set forth in Bispham’s Equity, sec. 100:

“ No particular form of words is necessary to create a trust for the benefit of a feme covert. According to the modem English authorities the most apt word to create such a trust is 'separate/ which has a fixed and technical meaning, and which will of itself, exclude the marital rights; whereas the same fixed and technical meaning is not attributable to 'sole.'”

In Massy v. Bowen, L. R. 4 Eng. & Ir. App. 288, the Lord Chancellor (Lord Hatherly) said (p. 294): “The common form used by all conveyancers with reference to a separate estate is to use the words ‘sole and separate use.’ That is the common form, which appears in all the books of precedent. The word ‘separate’ is sometimes used alone; but if the word ‘sole’ is used it is never used alone, that I can find in any book or precedent.”

The present chief justice, in Scott v. Bryan, 194 Pa. 41, said (p. 46), “The only reasonable interpretation therefore of the testator’s use of the words ‘ her own separate estate,’ is that he intended to create the estate technically known as one in trust to her separate use.”

In the present case, we agree with the learned judge of the court below, that the language of the will clearly indicated an intent to create a separate trust, which is not made doubtful by anything within the four corners of the will. The opinion of the trial judge is a demonstration of the soundness of the conclusions reached. The assignments of error are overruled, and the judgment is affirmed.


text:
    Wilson, Appellant, v. Bryn Mawr Trust Company.

      Practice, C. P. — Affidavit of defense — Order discharging rule — Appeals.

    An order discharging a'rule for judgment for want of a sufficient affidavit of defense will not be reversed by the Supreme Court in doubtful and uncertain eases, but only such as are very clear and free of doubt.
    Argued Feb. 2, 1909.
    Appeal, No. 14, Jan. T., 1909, by plaintiff, from order of C. P. Montgomery Co., March T., 1908, No. 25, entering judgment for part of plaintiff’s claim on rule for judgment for want of a sufficient affidavit of defense in case of George B. Wilson v. Bryn Mawr Trust Company.
    Before Fell, Brown. Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of-defense.

      The facts relating to this appeal were thus stated by Swartz, P. J., who heard the case in the court below.
    The damages claimed are as follows:
    Purchase money paid, less $87.50.......... $11,186.35
    Interest on same from April 18th, 1907.
    Examination of title and recording deeds.... 50.00
    Road tax $55.33, county tax $97.26, interest on mortgage................'........;.. 610.56
    Loss because of increased value of farm..... 23,970.75
    Loss on sale of Hagy farm................. 12,325.40
    The interest of the insured which was covered by the policy was that of owner in fee of the propérty. As the grantee received no title or interest of any value, the basis of his loss is the true value of the property insured: Foehrenbach v. Title & Trust Co., 217 Pa. 331. The plaintiff, however, can recover nothing beyond the face of his policy, and his damages are confined to the actual loss sustained. If he paid $34,000 for the property and the farm had no value beyond the amount so paid, his loss is represented by the consideration paid. Only one-third of the consideration was paid and the balance is represented by a mortgage given by Mr. Henry. Plaintiff claims as part of his loss, this one-third of the consideration which he paid in cash. He had the use of the farm, and we do not see how he can claim as part of his loss, the taxes and interest on his investment, unless he furnishes us with an account of the income of the farm. If the income exceeded the sum paid out for taxes, interest and expenditures, he sustained no loss on this branch of his claim. We cannot assume that the use of the farm has no value.
    The claim for damages for the excess of the market value of the farm over the price paid, is disputed not because the item is not a proper element of damages, but because no such excess in fact it is averred can be shown. The averments of the affidavit of defense are not as specific upon this point as they should be, but an allegation that the sum of $1,050 per acre is a full price for the farm is in effect an averment that such price is its market value. When we say that an owner received a full price for his property, we mean ordinarily that he sold it at its fair market value. When an affidavit of defense discloses facts sufficient to indicate a good defense we are not in the habit of entering judgment without an opportunity to file a supplemental affidavit. This question of market value is eminently one for the jury and not for the court.
    June 22, 1909:
    The defendant denies that it had any knowledge of the alleged agreement between the plaintiff and Joseph J. Baughman for the sale of the Pinkerton farm at the time the policy of insurance was issued. We think the affidavit of defense is sufficient for all the claim of the plaintiff other than the sum of $11,186.36 and the item for conveyancing, $50.00, and on this latter item the plaintiff is entitled to interest from April 18, 1907.
    Judgment is accordingly entered for the plaintiff for the sum of $11,240.99 with leave to proceed to trial before a jury for the balance of his claim.

      Error assigned was the order of the court.

      John G. Johnson, with him Maurice Bower Saul and Nicholas H. Larzelere, for appellant.

      E. H. Hall and Montgomery Evans, with them Henry M. Brownback, for appellee.
   Opinion by

Mr. Justice Potter,

We have here the appeal of the plaintiff, from the same judgment as that from' which we have just considered the appeal of the defendant, the Bryn Mawr Trust Company. Upon the motion of the plaintiff, judgment for want of a sufficient affidavit of defense was entered for the sum of $11,240.99, the amount of the purchase money paid by the plaintiff and his conveyancing expenses, with leave to proceed to trial before a jury for the balance of the claim.

This would involve the determination of questions of fact, and the rule for judgment seems to us to have been properly disposed of, by the court below. We have often said that the ruling of the trial court in a case of this kind, will only be disturbed in cases where the statement of claim and the affidavit of defense, raise a pure question of law, and clear error has been committed.

In Ætna Ins. Co. v. Confer, 158 Pa. 598, Justice Dean said (p. 604): “It must be a very plain case of error in law, if we sustain appeals in such cases as this, from the decree of the common pleas discharging the rule. The decree being interlocutory, no injury can result to the complaining suitor other than delay of final judgment. Besides, it is doubtful, whether the act of assembly authorizing these appeals has not, on the whole, aggravated delay.”

In Paine v. Kindred, 163 Pa. 638, Justice Green, after quoting the above language, said (p. 643): “We do not mean to interfere where rules for judgment have been discharged in the lower courts, in doubtful and uncertain cases, but only in such as are very clear and free of doubt, as we have frequently said.”

In Security S. & L. Assn. v. Anderson, 172 Pa. 305, it was said, per curiam (p. 307): “We are all of opinion that the rule for judgment was rightly discharged. But, assuming for argument sake, that the action of the court was at least doubtful, the result is the same. As was said in Griffith v. Sitgreaves, 81* Pa. 378, the act referred to 'was intended to reach only clear cases of error in law, and thus prevent the delay of a trial.’ Much valuable time is lost and expense incurred in endeavoring to convict the court below of manifest error in cases where at most there is merely a doubt as to the correctness of its decision. In such cases it is useless to insist on a reversal.”

In Kidder Elevator Interlock Co. v. Muckle, 198 Pa. 388, it was said, per curiam (p. 390): “An order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed by the Supreme Court in doubtful and uncertain cases, but only such as are very clear and free of doubt.”

In the present case we cannot say that the right of the plaintiff to recover a larger sum than that for which judgment was entered, is clear, or free from doubt. The assignment of error is therefore overruled, and the judgment is affirmed.


text:
    Olyphant Borough, Appellant, v. Delaware & Hudson Company.

      Railroads — Crossing streets — Boroughs—Right of way — Laying additional tracks.

    1. Where a railroad company incorporated in another state was given the power by the Act of March 24,1870, P. L. 554, to condemn or purchase lands not exceeding sixty feet in width, and to construct and establish a railroad with one or more tracks, and the company acquires land of the width of sixty feet and lays a single track thereon and across township roads in an unincorporated town or village, the subsequent incorporation of the town and the change of the roads into borough streets, do not give the borough a standing to enjoin the railroad company from laying additional tracks within its right of way and across the streets. In such a case the power of the company to construct a railroad was not exhausted when it laid the first track.

      Constitutional law — Title of act — Railroads.
    2. The title of an act of assembly which shows that the purpose of the act was to authorize a company to build a railroad, gives sufficient notice of a provision in the body of the act giving the company the right of eminent domain.
    Argued Feb. 22, 1909.
    Appeal, No. 282, Jan. T., 1908, by plaintiff, from decree of C. P. Lackawanna Co., Nov. T., 1906, No. 1, dissolving preliminary injunction in case of Olyphant Borough v. Delaware & Hudson Company.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Newcomb, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dissolving preliminary injunction.

      I. H. Burns, with him P. L. Walsh, borough solicitor, and A. A. Vosburg, for appellant.
    The complainant is incorporated by the state of New York. It is not a corporation of Pennsylvania, it acts under a license from Pennsylvania to do certain acts: Goodlett v. Railroad Co., 122 U. S. 391; Wilkinson v. L. W. R. Co., 22 Fed. Repr. 353; State v. Railroad Co., 30 N. J. L. 368.
    The defendant company being, then, a foreign corporation before it could lawfully do business in Pennsylvania, it was necessary for it to receive the right so to do from its parent state of New York. This right it has not received either by its charter or any legislative acts subsequent to it: St. Louis & San Francisco Ry. Co. v. James, 161 U. S. 545; Water Co. v. Street Ry. Co., 13 Pa. Dist. Rep. 365.
    The act of 1870 is unconstitutional: Dorsey’s App., 72 Pa. 192; Union Pass. Ry. Co.’s App., 81* Pa. 91; West End Pass. Ry. Co. v. City Pass. Ry. Co., 10 Phila. 75.
    We think the court erred in holding that the construction of the single track from Olyphant to Carbondale did not exhaust the company’s right to another taking: Dryden v. Railway Company, 208 Pa. 317.

      James H. Torrey, with him Joseph O’Brien, for appellee.
    The defendant was not required to secure the consent of the borough authorities before laying additional tracks across the streets: Northern Coal & Iron Co. v. Wilkes-Barre, 218 Pa. 269.
    The defendant company had a clear right to build the additional tracks: Philadelphia, W. & B. R. R. Co. v. Williams, 54 Pa. 103; Zahn v. Railway Co., 184 Pa. 66; Pittsburg v. Epping-Carpenter Co., 194 Pa. 318; Com. v. Railroad Co., 27 Pa. 339; Cleveland & Pittsburg R. R. v. Speer, 56 Pa. 325; Perry County R. R. Co. v. Railroad Co., 150 Pa. 193.
    The principle is too familiar to require the citation of authorities, that though an act of assembly be defective by reason of the omission of some of its provisions from its title, the act will be operative except as to the omitted provisions: Dewhurst v. Allegheny City, 95 Pa. 437; Philadelphia v. Ridge Ave. Ry. Co., 142 Pa. 484.
    Even if, however, the question were properly raised it is perfectly manifest that the right of eminent domain is germane to the purposes of the act as expressed in its title: State Line, etc., R. R. Co.’s App., 77 Pa. 429.

      June 22, 1909:

   Opinion by

Mr. Justice Brown,

The complaint of the borough of Olyphant is that the court below refused to enjoin the appellee from laying additional railroad tracks across Dunmore, Moosic and Bell streets — public highways within the municipal limits. By the Act of March 24, 1870, P. L. 554, the appellee, whose corporate title at that time was “The president, managers and company of the Delaware and Hudson Canal Company,” was authorized to locate and construct a railroad from a point in the town of Olyphant, in Luzerne county, to the city of Carbondale, in the same county. The second section of the act conferred upon the company all the power, authority and privileges given in the tenth section of the railroad Act of February 19, 1849, P. L. 79, and all damages in the location and construction of its railroad for right of way and land or materials taken were to be secured and assessed in the manner provided by the act of 1849 and the several supplements thereto. At that time the borough of Olyphant was not incorporated. As a town or village it formed a part of the township of Blakely in Luzerne county. In 1870 the appellee began the construction of a single track between the terminal points named in the act, and the same was completed in 1871. It traversed the section in controversy in this case. What are now Moosic and Dunmore streets were, in 1871, public roads in Blakely township. By a decree of the court of quarter sessions of Luzerne county the town of Olyphant was incorporated as the borough of Olyphant on December 18, 1876. In 1886 the appellee built an additional track between the same terminal points. This track was laid across the streets in question at grade without objection. In 1906, in pursuance of action by its board of directors, the appellee proceeded to lay two additional tracks for the purpose of making its road one of four tracks, with necessary switches and sidings, from Carbondale south to and through the borough of Olyphant. The third track had been laid across Dunmore street, and the third, fourth and part of a fifth for switching purposes had been laid across Moosic street when the present bill was filed. Before laying these additional tracks across the said streets the company, without conceding anything as to its legal rights in the premises, made an unsuccessful effort to secure the consent of the borough to do so, but the municipal authorities rejected its proposals and refused consent to the further occupation of the streets for grade crossings. The court found as a fact that the action of the borough, under all. the circumstances, was somewhat unreasonable. At the crossings and on each side of them the appellee is in apparent possession, under claim of title, of a strip of land of a width nowhere less than sixty feet, and the proposed tracks will not fall outside of the line defining that width.

If the act of 1870 conferred upon the appellee the power to locate and construct its road from a point in the village of Olyphant to Carbondale, there went with that power the right to cross the township roads, and when such roads subsequently became municipal streets upon the incorporation of the borough of Olyphant, the right of the appellee to continue to cross them remained unimpaired: and if the appellee was empowered to locate and construct its road through and across territory which afterwards became the site of the borough of Olyphant, no streets laid out and opened by that borough can interfere with the rights which were conferred upon the appellee by the act of 1870,- for the site of the borough was selected with all those rights resting upon it, to exercise which municipal consent is not now needed: Northern Coal and Iron Co. v. Wilkes-Barre, 218 Pa. 269.

The right of the appellee with which the appellant would interfere was clearly conferred by the act of 1870. It is authorized to locate and construct a railroad between designated termini, and that it might construct the said road it was expressly given the power of eminent domain as conferred upon railroad companies by sec. 10 of the act of 1849. Under a claim of title, acquired either by purchase or condemnation, it is in possession of a strip of. land nowhere of a less width than sixty feet. Though it was a foreign corporation at the time the act of 1870 was passed, the power conferred upon it by our legislature is to be judged by the same rules as if it had been actually incorporated here, and, so far as its road was originally constructed or is now being improved in this state under powers granted by our legislature, it is a quasi Pennsylvania corporation, whose rights and powers are to receive from the courts no less protection than is accorded to our own corporations: New York and Erie R. R. Co. v. Young, 33 Pa. 175; Com. v. N. Y., L. E. & W. R. R. Co., 129 Pa. 463.

It is urged that the act of 1870 is unconstitutional in that its title fails to give notice of the power of eminent domain conferred upon the appellee or of its right to connect with the Jefferson railroad at Carbondale. Its right to connect with the Jefferson road is not involved in this proceeding, and the same is true of its power of eminent domain, for, as stated, the court has found that it is in possession under a claim of title of all the land it needs for its additional tracks; but if the sufficiency of the title in giving notice that the power of eminent domain is conferred by the act is to be regarded as a question before us, we have no doubt that it meets the constitutional requirement. The purpose of the act, as disclosed in its title, was to authorize the appellee to construct a railroad. Such.a road cannot be constructed without acquiring land for its construction, and it is a matter of common knowledge that, as a rule, railroads are constructed over land acquired under the power of eminent domain, without which they could not be constructed. This power was germane to the construction of. the appellee’s road, and notice of authority to construct it ought reasonably to have led to an inquiry into the body of the bill.

Though the appellee has acquired a right of way sixty feet in width between the terminal points named in the act of 1870, counsel for appellant contend that it cannot now use this right in laying additional tracks, because it exhausted its power to construct a railroad when it laid the first track. Section 10 of the act of 1849 is a quasi part of the charter of the appellee and must be so regarded in passing upon its powers involved in this proceeding. By that section it was empowered “to lay down, erect, construct and establish a railroad, with one or more tracks,” and that it might construct such a railroad it was empowered to acquire, either by condemnation proceedings or purchase, lands not exceeding sixty feet in width. There was no requirement that more than one track should be built by it when it began the exercise of the power conferred upon it, and at that time there was no reason why it should have built more; but it acquired the land needed for more, to be used whenever more might be needed. There was no limitation placed upon its power to construct a railroad of one or more tracks which compelled it to exercise its whole authority in the beginning, when the demands of business may have been few, and it would be a most unreasonable construction of its authority to require that it ought, in 1870, to have made provision for all the unknown wants of the future. When increased facilities are required by the public, growing out of increase of trade and business and changes taking place, the power conferred upon it can again be called into exercise: Philadelphia, Wilmington & Baltimore R. R. Co. v. Williams, 54 Pa. 103. There is nothing in the twenty assignments of error which would justify any disturbance of the decree made, and it is, therefore, affirmed at appellant’s costs.