author: Mb. Justice Bbown, Mr. Justice Mestrezat, Mb. Justice Potter,

text:
    Commonwealth v. Spence, Appellant.
    March 20, 1911:

      Liquor laws — Retail liquor license — Eating house license — Sale of spirituous liquors — Sale without license — A ct of May IS, 1887, P. L. 108.

    Where a person petitions the court of quarter sessions for a license “to sell vinous, malt and brewed liquors by retail,” and indorses his petition as one for “an eating house license” and the court makes an order “license as prayed for is granted,” the Supreme Court will Construe the license granted as a retail liquor license under the Act of May 13, 1887, P. L. 108, which gives the licensee authority to sell not only vinous, malt and brewed liquors, but also spirituous liquors; and if the licensee sells spirituous liquors, he cannot be convicted of selling liquor without a license.
    Mestbezat, Potteh and Stjswabt, JJ., dissent.
    Argued Oct. 17, 1910.
    Appeal, No. 183, Jan. T., 1911, by defendant, from judgment of Superior Court, Oct. T., 1910, No. 3, affirming judgment of Q. S. Chester Co., on verdict of guilty in case of Commonwealth v. James Spence.
    Before Fell, C. J., Bbown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Indictment for selling liquor without a license.
    Appeal from judgment of the Superior Court.

      Error assigned was the judgment of the Superior Court.

      A. M. Holding, for appellant,
    cited: Mercersburg Licenses, 5 Pa. Dist. Rep. 171; Franklin County Liquor Licenses, 12 Pa. Dist. Rep. 212; Jefferson County Licenses, 15 Pa. Dist. Rep. 563; Donoghue’s License, 5 Pa. Superior Ct. 1; In re Breslin, 45 Hun (N. Y.), 210.

      Robert S. Oawthrop, district attorney, for appellee,
    cited: Com. v. Hayes, 149 Mass. 32 (20 N. E. Repr. 456); Com. v. Markoe, 34 Mass. 465; Com. v. McCormick, 150 Mass. 270 (22 N. E. Repr. 911).
   Opinion by

Mb. Justice Bbown,

The appellant applied to the court of quarter sessions of Chester county for a license to sell liquors. His petition was for a license “to sell vinous, malt and brewed liquors by retail,” and it was granted as prayed for. During the year for which it was issued he sold spirituous liquors, and, having been indicted for selling without a license in violation of the Act of May 13, 1887, P. L. 108, was convicted and sentenced to pay a fine and undergo imprisonment. On appeal to the Superior Court, his conviction was sustained: Com. v. Spence, 43 Pa. Superior Ct. 7.

At the time the appellant sold spirituous liquors he held in his hands a license to sell liquors, granted to him by the same court of quarter sessions that directed the jury to convict him of selling without a license. “But,” says that court, speaking of itself in its opinion sustaining the verdict-against him, “it certainly did not grant, and was not understood by the defendant to have granted, the Brooks license authorizing the sale of spirituous liquors.” It did, however, direct a license to issue to him to sell intoxicating liquors, and such license was issued to him by its clerk in pursuance of its decree, after he had paid to the commonwealth the fee fixed by the Brooks act for the privilege of selling vinous, spirituous, malt and brewed liquors. The authority of a court of quarter sessions to grant a liquor license rests solely upon legislative enactment, and, in the absence of statutory authority to grant it, no court can direct it to issue. The only act of assembly in existence authorizing the granting of a license at the time the court below granted one to the appellant was that of May 13, 1887, popularly known as the Brooks law. This is made too plain for discussion by the first section of the act, which provides “that it shall be unlawful to keep or maintain any house, room or place, hotel, inn or tavern, where any vinous, spirituous, malt or brewed liquors, or any admixture thereof, are sold by retail, except a license therefor shall have been previously obtained as hereinafter provided.” These last three words make it unlawful to conduct any retail liquor establishment unless a license is first obtained under the act of 1887, thereby excluding and virtually repealing all prior methods of granting licenses. The eighth section provides that all persons licensed to sell at retail any vinous, spirituous, malt or brewed liquors, or any admixture thereof, in any house, room or place, hotel, inn or tavern, shall be classified for the purpose of fixing the license fee to be paid by a retailer, whose privilege, no matter in which class he may be, is to sell spirituous as well as vinous, malt and brewed liquors. This change in the law was at once generally recognized by the judges of the courts of quarter sessions throughout the state, and, so far as we are informed, the attempt to grant licenses other than as authorized by the act of 1887 has long since ceased, except in one or two counties. The county of Chester is one of these, and the judges of its court of quarter sessions seem to recognize the absence of any power under the present statute to grant eating house licenses, but make excuse for granting them that they but followed a custom established by a former member of the court. But where did he get any authority to grant such a license? It was not his province, but a purely legislative function, to determine what kind of a license may be issued for the sale of liquors.

In view of the unambiguous declaration of the legislature that a license to sell intoxicating liquors must be obtained in accordance with the provisions of the act of 1887, we are constrained to say that we are utterly at a loss to understand how the learned trial judge below could have held that the license issued to the appellant had not been issued under that act. And yet that is what he held in his language quoted from the opinion denying a new trial and arrest of judgment. If the license was not issued under that act, it was not issued under any, and the court undertook to give to the appellant a privilege to sell liquors without the semblance of authority to do so; the license issued to him was utterly void and he was as guilty of a violation of the statute when he sold malt or brewed liquors under it as he was when he sold whisky. The court surely never could have intended this, but it is the position into which the commonwealth is driven in asking that the judgment be affirmed. The appellant either had or had not a license. If he had one, it could have been issued to him only under the act of 1887. This certainly ought not to be questioned, and the court below concedes that if it was issued under that act, his right under it was to •sell spirituous liquors. This unavoidable concession is found in the following words in the opinion of the court •refusing a new trial: “We agree with counsel for defendant that if this court had granted the Brooks license, it could not have imposed restrictions and conditions of its own making, could not have denied the right given by it, to sell spirituous liquors. We also acquiesce in the proposition that if it appeared that the court had intended to grant the Brooks license, the fact that its decree or order, following the petition as it does, omits the word 'spirituous’ would not prejudice the defendant, for the extent of ■privilege granted would be controlled by the law under which the decree was made,' and with which it would, in such case, have been intended to accord.” A direct authority in support of this manifestly correct view is Bres-lin’s Case, 32 N. Y. 210. In issuing a license in that case the board of excise undertook to prohibit the licensee from -selling to his guests intoxicating liquors to be used with their meals on Sunday. The statute gave him the right to so sell, and,- in deciding that the restriction which the board undertook to place upon the license issued by it was void, the court said: “A critical examination, assisted by the deliberate and mature consideration and comparison of the act of 1857 (chap. 628) and the several amendments thereof, suggested by the argument at the General Term, demonstrated that the power of the board of excise is limited to the granting or refusing of licenses. If the license be granted, the statutes regulate the rights acquired by it, the restrictions to be observed and the punishment for each violation of its provisions: It cannot, therefore, either enlarge or diminish, these rights and obligations, or interfere with them in any way. The officers composing it cannot insert in the license a limitation, restriction or condition which is repugnant to the statute; but if they do so, it is void, and hence the clause in the relators’ license absolutely prohibiting the sale of liquor upon certain days named in it, is, as the result of our construction and interpretation of the statute, unauthorized and nugatory.” And so here, the power of the court below was limited to granting or refusing the license, and, having granted it, the restriction placed upon the holder of it as to the kinds of liquors he could sell under it was “unauthorized and nugatory.”

We are not concerned on this appeal, involving grave consequences to the appellant, with what the court below intended to do, or with what it thought it had done. Our concern must be only as to what it actually did from the standpoint of the law. If it misunderstood the statute, and did what it now says it did not intend to do, the consequences of its misunderstanding are not to fall upon the head of the appellant. If it did not intend that he should have a license to sell spirituous liquors, its only course, as guided by the law, was to refuse him a license altogether, but, authorized by the law to grant him a license to sell liquors, it gave him one which, for the reasons stated, it is idle to say was not issued under the act of 1887, and, if issued under that act, the court below concedes that the appellant had a right to sell spirituous liquors.

The first nine clauses of the fifth section of the act of 1887 set out in detail just what must appear on the face of a petition for a license to sell liquors at retail. The appellant’s petition complied literally with these requirements, and what he set forth as to the kinds of liquors he proposed to sell had no proper place in it, for the statute did not call for this. It was, therefore, mere surplusage. As the act declares what shall be sold under a license, if the court shall grant it, the petition of the appellant ought not to have been considered as anything else than one for a retail license under the act of assembly, to be refused or granted by the court with such restrictions only upon the right to sell as are fixed by the act. Every jurisdictional averment required by it appeared upon the face of the petition. In this connection it may be proper to note that the court below seems to attach some importance to the fact that the petition was indorsed as one for “an eating house license.” This indorsement was no part of the petition, for a rule governing all pleadings and court proceedings is that captions and indorsements are no parts of the paper: Jackson et al. v. Ashton, 8 Peters, 148; In re Gor-man, 15 Am. Bank. Rep. 587.

It may be that the appellant did not keep faith with the court, but he was not on trial for that; and it may be that his word was broken, but it was on a promise which the court had no power to exact from him, and for this he is not to go to prison as a convict. The offense charged is selling liquor without a license, and this in the face of a decree of a competent court granting him a license to sell, under which he sold what the statute authorized him to sell as the holder of a retail license. The record, reviewed from a judicial and logical standpoint, discloses a judgment radically wrong. The judgment of the Superior Court is reversed, as is that of the court below, and the defendant is discharged from his recognizance.

Mr. Justice Mestrezat,

dissenting:

I cannot agree with the conclusion of the majority of the court that either the court of quarter sessions or the Superior Court erred in its disposition of this case. The opinions of these courts clearly vindicate the correctness of the judgment which they entered. The majority opinion, I submit, finds no support in any decision in this or any other jurisdiction; on the other hand, it is at variance with well-established legal principles universally recognized in the courts of this country and England.

James Spence, the defendant below and appellant here, was indicted in the court of quarter sessions of Chester county for selling vinous, spirituous, malt or brewed liquors without having a license authorizing him so to do. On the trial of tho cause, it appeared that he had sold spirituous liquors within the jurisdiction of the trial court. As a defense he offered in evidence a license issued by the quarter sessions of Chester county authorizing him in terms to sell vinous, malt or brewed liquors. This was his only defense, and it would have been sufficient and adequate to protect him and to prevent a conviction if the license had authorized him to sell spirituous liquors. The learned court, however, held and so instructed the jury that the license did not authorize the defendant to sell spirituous liquors, and that, therefore, if the jury believed the evidence the defendant was guilty of selling spirituous liquor in manner and form as indicted. The jury rendered a verdict of guilty, and the defendant was duly sentenced. An appeal was taken to the Superior Court, and the unanimous judgment of that court affirmed the conviction and sentence of the defendant by the court of quarter sessions. This appeal was taken by the defendant from the judgment of the Superior Court.

It is conceded by the majority of the court that the appellant was properly convicted and sentenced, unless the license produced by him on the trial authorized him to make sale of spirituous liquors. He contends, and the majority of this court sustains the contention, that the license offered in evidence conferred upon him such authority. I agree that if the license authorized the sale of such liquors, the appellant was not guilty and the sentence or judgment of the quarter sessions was erroneous. The single question, therefore, upon which this case turns, is whether at the time the appellant sold the spirituous liquor he had a license issued by the court of quarter sessions of Chester county authorizing him to make the sale.

The facts of the case are not in dispute, and are clearly and comprehensively stated in the opinion of the learned trial judges dismissing the rule for a new trial and the motion in arrest of judgment. They may be briefly summarized: The appellant presented his petition to the court of quarter sessions of Chester county “for a license to sell vinous, malt and brewed liquors, by retail, in quantities not exceeding one quart” at a place in West Chester “known as 'Spence’s Restaurant;’” and prayed that a license might be granted him for one year from April 1, 1909, “for the sale of vinous, malt and brewedliquors . . . . at the place above described.” The petition was indorsed: Eating House License. Accompanying the petition was a certificate signed by thirteen electors of the borough of West Chester certifying to the temperate habits and good moral character of the petitioner and praying “that the prayer of the petitioner be granted and the license prayed for issued.” Filed with the petition was the bond of the petitioner and two sureties reciting that application was about to be made to the court of quarter sessions of the county of .Chester “by the said James Spence, for a license to sell vinous, malt and brewed liquors by retail for one year,” and which was conditioned that he observe “all the laws of this commonwealth relating to the selling or furnishing of vinous, malt and brewed liquors, and any admixture thereof” and would pay any damages recovered against him for violating any act of assembly relating to “selling or furnishing liquors as aforesaid.” The license was granted by the following order: “Now, March 1, 1909, after hearing the license as prayed for is granted.” On the same day the sureties on the bond were approved by the court. This is the license which the appellant offered as a defense to the indictment charging him with the illegal sale of spirituous liquors. It appears that after the enactment of the Brooks High License Law, May 13, 1887, P. L. 108, the court of quarter sessions of Chester county continued to grant what were known as eating house licenses which were authorized by prior legislation. The reason for granting such licenses and the practice in license applications in the quarter sessions of Chester county are clearly and fully stated in the opinion of the learned court refusing the appellant a new trial.

It will be observed from the statement of the undisputed facts that the appellant applied for and received a license authorizing him to sell vinous, malt and brewed liquors, an eating house license under the Acts of March 31, 1856, P. L. 200, and April 20,1858, P. L. 365; that he filed a bond conditioned only for the observance of the law in selling vinous, malt or brewed liquors; that he did not apply for and was not granted a license authorizing him to sell spirituous liquors, and did not file the bond which the act of 1887 requires to be filed before a license is issued authorizing the sale of spirituous liquors.

The position of the appellant, as stated in the printed argument of his counsel, is as follows: “An examination of the petition and of the court’s order thereon shows, however, that the court undertook to limit or restrict the license to the sale of vinous, malt and brewed liquors. Not the license, but this restriction, it is respectfully submitted, was void, and the licensee had the right to sell spirituous as well as malt and brewed liquors.” This contention of the appellant is sustained by the opinion of the majority of the court and is the reason for the judgment about to be entered reversing the Superior and trial courts.

The appellant was indicted and convicted under the Act of May 13, 1887, P. L. 108, which makes it unlawful to keep or maintain any house, etc., where vinous, spirituous, malt or brewed liquors or any admixture thereof are sold without a license therefor shall have been obtained from the court of quarter sessions, and imposes a penalty for selling without such license. It logically follows that when a person is indicted for selling vinous, spirituous, malt or brewed liquors in this state and it is shown on the trial that he has made sale of such liquors, his only justification and defense is a license issued to him by the court of quarter sessions of the county in which the liquors were sold. In such case it is sufficient to warrant a conviction that the commonwealth prove the defendant made sale of the liquors; and it need not go further and prove a negative by showing that he had no license authorizing him to make the sale. The burden is then shifted to the defendant and he must produce a license issued by the proper court authorizing him to sell, within its jurisdiction, the liquors which the indictment charges were illegally sold. This is undoubtedly the law in Pennsylvania and has been so held whenever the question was raised: Com. v. Clymer, 217 Pa. 302; Com. v. Dilbo, 29 Leg. Int. 150, per Paxson, J.; Com. v. Rosenberg, 52 Pitts. Leg. J. 68, per McIlvaine, P. J.; Com. v. Wenzel, 24 Pa. Superior Ct. 467. In the latter case a point raising the question was put to the court of quarter sessions and was there ruled against the defendant and the ruling was subsequently affirmed by the Superior Court. The same principle has been recognized in other states where it is held that if the defendant relies on a license as a defense, the burden is on him to produce a license which authorizes him to make sale of the liquors which he is indicted for selling: State v. Foster, 23 N. H. 348, 55 Am. Dec. 191; Jefferson v. People, 101 N. Y. 19; Taylor v. State, 49 Ind. 555; State v. Ahern, 54 Minn. 195; Plainfield's Treasurer v. Watson, 57 N. J. L. 525; Com. v. Curran, 119 Mass. 206; Lambie v. State, 151 Ala. 86; Josey v. State, 88 Ark. 269.

The effect of the license offered by the appellant as a defense to the prosecution and which he claims authorized him to make sale of spirituous liquors may be considered from three view points: (a) the license was valid as granted, authorizing the licensee to sell vinous, malt or brewed liquors, but not spirituous liquors; (b) the license was wholly invalid and did not authorize the licensee to make sale of any liquors; (c) the license was valid and authorized the defendant to sell not only vinous, malt and brewed liquors, but also spirituous liquors. The last view is the one taken by the majority of the court', and on which it reverses the conviction of the appellant.

Was the license authorizing in terms the defendant to sell vinous, malt or brewed liquors valid? If so, it would not avail the defendant in this prosecution. It did not authorize him to sell spirituous liquors and hence could be no defense to the prosecution in this case in which it was alleged and proven that he had sold spirituous liquors. It is, therefore, unnecessary to determine whether the court of quarter sessions is now empowered to grant what was known prior to the act of 1887 as an eating house license which authorized the licensee to sell vinous, malt and brewed liquors. The question is not raised or necessary to a decision in this case. I wish to suggest, however, that no court within the state has held in any reported case that the legislation authorizing the granting of eating house licenses is not now in force, while the quarter sessions in several counties have ruled that it has not been repealed and have continued to grant such licenses since the enactment of the Brooks High License Law. The act of 1887 contains no general repealing clause, and conflicts with the legislation authorizing the granting of eating house licenses only as to the licensee fee. In view of the settled rules of statutory construction that implied repeals are not favored, and that it will not be presumed that the legislature intended a repeal by implication unless there is such a manifest repugnance and inconsistency between the statutes that they cannot stand together, it is not apparent why it should be held that the act of 1887 repeals the eating house legislation which is in pari materia with it. Judge Ftjthey of the court of quarter sessions of Chester county granted such licenses. His able and distinguished successors have continued to grant eating house licenses authorizing the licensee to sell vinous, malt and brewed liquors. The court of quarter sessions of Lebanon county in an opinion filed by Judge McPherson, now of the United States district court for the eastern district of Pennsylvania, and concurred in by Simonton, P. J., in Behny v. Bassler, 4 Pa. C. C. Rep. 496, reviews all the legislation on the subject in this state, and points out that the legislation prior to the passage of the act of 1887, authorizing the granting of eating house licenses, with the exception noted by him is still in force and not repealed by the latter act. In the opinion the learned judge says: “If we continue to apply these rules (of construction) to the act of 1887, it seems to us that the position stated above is sound. The act (of 1887) is only one of many on the same subject; it does not take the place of all other acts and stand alone, á complete system in itself. Upon this point, it is enough to say that there are no words of express repeal (except as to certain local laws), and that secs. 7, 10, 12, 15 and 18 distinctly recognize that some other laws are still in force. . . . This is all entirely consistent with the earlier laws, which divided retail licenses into two classes, and therefore the rules of construction above stated seem to require us to say, that tavern and restaurant licenses are still distinct classes, that the act of 1887 applies to both, and that in this county a restaurant license continues to authorize the sale of domestic wines, malt, and brewed liquors only.” The court held that there is a clear repugnancy between the price to be paid for a restaurant license, under prior legislation and the fee fixed by the act of 1887, and that the licensee must pay the fee fixed by the latter act. After quoting the words of the act of 1887 on the subject of the license fee, Judge McPherson says: “These words are plain and sweeping, applying to tavern and restaurant licenses alike, and requiring as much to be paid for one as for the other, although their privileges are not equally extensive. This is purely a matter of legislative policy, with which the courts have nothing to do except to s.ee that it is carried out.” The act of 1887 received a like construction by the quarter sessions of Lackawanna county in Lackawanna County Licenses, 5 Pá. C. C. Rep. 462. The opinion was written by Hand, P. J., who shortly thereafter became a justice of this court. The learned judge says: “It (act of 1887) is entitled 'An Act to restrain and regulate/ and it makes no general repeal of former laws. It must, therefore, be construed in the light of its title, and as a part of the whole system of law upon this subject. No distinction is made in the character of ,the license granted from what existed before. The license must be either for restaurant, or hotel, or wholesale. The former cannot allow the sale of distilled liquors.” In view of the decisions of these and other eminent judges in other counties of the state holding that since the act of 1887 the quarter sessions may grant eating house licenses authorizing the sale of vinous, malt and brewed liquors, I submit that it is not wise for this court to announce a contrary doctrine when the question is not raised and should not have been argued in the present case.

Was the license void and therefore conferred no authority upon the licensee to sell any liquors whatever? If this view should be entertained, it is obvious that it would not aid the appellant and prevent his conviction. To declare his license void is to sustain the appellant’s conviction of the crime charged against him in the indictment.

Was the license held by the appellant authorizing him to sell vinous, malt and brewed liquors valid and sufficient to authorize him to sell spirituous liquors? This question is answered in the affirmative by the majority of the court, but I submit that such a proposition is anomalous and has neither reason nor precedent to support it. It will be observed that the application of the appellant was for an eating house license, authorizing him to sell only vinous, malt and brewed liquors; that he was certified as a proper person to have an eating house license; that he filed a bond which was not conditioned as required by law to entitle him to receive a retail liquor license under the act of 1887; and that the license granted by the court was an eating house license and did not in terms authorize the sale of spirituous liquors. The learned judges of the quarter sessions did not intend to grant a liquor license under the Brooks High License Law or Act of May 13, 1887, P. L. 108. This is an uncontroverted fact as appears by the opinion of the quarter sessions wherein it is said: “We agree with counsel for the defendant that if this court had granted the Brooks license, it could not have imposed restrictions and conditions of its own making, and could not have denied the right given by it, to sell spirituous liquors. We also acquiesce in the proposition that if it appeared that the court had intended to grant the Brooks License, the fact that its decree or order, following the petition as it does, omits the word 'spirituous/ would not prejudice the defendant, for the extent of privilege granted would be controlled by the law under which the decree was made, and with which it would, in such cases, have been intended to accord. This is foreign to the case being considered, however, for there was no appearance even, of a purpose to grant the defendant the Brooks license. •The application on which his present license issued, states on the outside or back that it is a petition for an eating house license and inside reads that it is a petition for a license to sell vinous, malt and brewed liquors, and it is such a license, and none other, that the court undertook to grant. It may have granted no license, but it certainly did not grant, and was not understood by the defendant to have granted the Brooks license authorizing the sale of spirituous liquors.” It is, therefore, manifest that the appellant asked for and received only an eating house license, that it was the intention of both the applicant and the court that he should receive such a license, and that only such a license was granted him.

Let us assume, however, that the court had no authority •to grant the license which the appellant received and which did not authorize him to sell spirituous liquors, and that the license was granted under the act of 1887 authorizing the licensee to sell vinous, spirituous, malt and brewed liquors, and that the court imposed a limitation or restriction thereon by omitting the word “spirituous” from the license. Of course there is and can be no question that in terms the license issued to the appellant authorized him simply to sell vinous, malt and brewed liquors, and •that the word “spirituous” was not in the application for, nor in the decree granting, the license. Could such a license avail the appellant on an indictment for selling spirituous liquors without a license? Suppose the statute, as it might have done, had authorized the court of common pleas or the orphans’ court, instead of the court of quarter sessions, to hear applications and grant licenses to sell liquors, and this license had been granted to the appellant in the same form by the common pleas or orphans’ court, could it even be pretended that the license would be a defense to a prosecution in a court of quarter sessions for selling spirituous liquors? In other words, when the license was offered as a defense to the prosecution of the appellant in this case in the quarter sessions, could that court reverse the decree of the court of common pleas or orphans’ court which had granted the license, and hold that as the license court had no authority to grant the limited license the appellant had a full retail liquor license? It is immaterial that the statute confers jurisdiction upon the court of quarter sessions to grant licenses as well as to try criminal cases. The jurisdiction to grant licenses, although exercised by the same tribunal, is separate and distinct and the decrees or judgments entered in the two branches of the court are as separate and distinct and of the same validity as if entered in different courts. I take it that this proposition is not, as it cannot successfully be, disputed. It follows, therefore, that to sustain the position of the majority of the court reversing the conviction of the appellant it must be held that an attack may be made on the decree or judgment granting the license in a collateral proceeding in which the licensee is indicted in the criminal branch of the court for a violation of the liquor laws. Concede, as I have said, that the quarter sessions court was required to grant a full license, the decree or judgment granting the limited or restricted license cannot be attacked on the trial of the licensee for having violated the laws of the commonwealth in selling spirituous liquors. To so hold is in direct conflict with our own authorities as well as with the well-established doctrine in all jurisdictions on the subject of collateral attack. The court is compelled to insert and read into the license granted by the decree of the quarter sessions the word “spirituous” which would manifestly be an attack upon the integrity of the decree. It is settled law in Pennsylvania that even though erroneous a judgment or decree obtained without fraud or collusion in a court of competent jurisdiction is conclusive until set aside by an appropriate and a direct proceeding in due course of law. The appellant could have applied for a license under the act of 1887 authorizing him to sell spirituous as well as vinous, malt or brewed liquors, and if the court had arbitrarily or illegally refused to grant it, he had a full and ample remedy by an appeal to the proper appellate court; but so long as the decree, granting him the limited license was in force, it could not be attacked in any other court or in any collateral proceeding in the same court. That is hornbook law. A decree or judgment may be erroneous, but it binds the parties until it is reversed or set aside in an appropriate proceeding instituted for the purpose.

It has been distinctly ruled that on an indictment for selling liquor without a license it is no defense that the proper court had refused to grant a license, whether the refusal was rightful or wrongful: State v. Jamison, 23 Mo. 330; Com. v. Blackington, 41 Mass. 352; State v. Downer, 21 Wis. 274; East St. Louis v. Wider, 46 Ill. 351. That one executes the bond and tenders the fee does not give him the right to sell unless he secures a license: State v. Bach, 36 Minn. 234. That a defendant presents a proper petition, tenders a bond and possesses all the qualifications of a dramshop keeper is no defense to a prosecution for selling without a license, if the court fails to grant a license: State v. Huntley, 29 Mo. App. 278; and it is unlawful for a dealer to sell any other kinds of liquors than those mentioned in the license: Gersteman v. State, 35 Tex. Crim. R. 318; Lucio v. State, 35 Tex. Crim. R. 320.

But the allegation that the license court granted to the appellant a retail license under the act of 1887 and attempted to limit or restrict his sales to vinous, malt or brewed liquors is wholly without any foundation in fact or in law. A license to sell liquors is a mere privilege and the licensee must take it as it is granted him or not at all. This court has decided that no person in this state has any property in the right to sell liquors: Raudenbusch’s Petition, 120 Pa. 328. It does not lie with appellant after having asked for and received an eating house license to allege that the court should not have granted his application, but should have issued to him another and different license authorizing him to sell a different liquor: Pantall v. Rochester & P. Coal & Iron Co., 204 Pa. 158. He is estopped from making such contention, and it will not avail him when indicted for selling liquor without a license : Com. v. Rourke, 141 Mass. 321; State v. Stone, 6 Vt. 295; Williams v. Louis, 14 Kans. 605.

There is another and an absolutely controlling reason why it cannot legally be held that the appellant had a license to sell spirituous liquors, and that is that he had not complied with sec. 2 of the Act of April 24, 1901, P. L. 102, which requires that before any license for the sale of liquors is issued the applicant shall give a bond conditioned for the faithful observance of the laws relating to the selling and furnishing of vinous, spirituous, malt or brewed liquors and any admixture thereof. The word “spirituous” is omitted not only from the application and the license but also from the bond of the appellant. Even if the position of the majority of the court be correct that this court has the right by construction to insert the word “spirituous” in the license granted the appellant, it has no authority to change the condition of the bond by inserting the word therein so as to make it obligatory upon the sureties. The obligation of the surety in a bond of this or any other character is contractual, and the terms of the bond or contract cannot be changed even by an order of court without the consent of the surety. It, therefore, necessarily follows that if it be conceded the court granted and issued to the appellant a license to- sell spirituous as well as vinous, malt or brewed liquors and imposed a limitation or restriction thereon, the license was absolutely void and did not authorize him to sell spirituous liquors because he had not complied with the section of the act of 1901 above referred to which specifically provides as a prerequisite to issuing the license that the applicant shall give the bond required by the act before the license is issued. The right to sell intoxicating liquors, as conceded by the majority opinion, depends upon a license granted in accordance with the provisions of the statute regulating the subject, and when a defendant interposes a license as a defense in a prosecution for the sale of such liquors, it must appear that he had a valid and legal license granted in entire conformity with the statute. Every condition imposed by the statute under which the license is granted must be strictly complied with: 17 Am. & Eng. Ency. of Law (2d ed.), 331. The bond must be given before the license is issued: Houser v. State, 18 Ind. 106; State v. Shaw, 32 Me. 570; State v. Fisher, 33 Wis. 154. Without giving the bond as required by the statute, therefore, the license is absolutely void and affords no protection to a defendant charged with the illegal sale of liquor. By the judgment to be entered in this case, all the eating house licensees in the state are at once converted into retail liquor dealers authorized to sell spirituous liquors without having filed a bond to protect the public against illegal sales of spirituous liquors, in plain violation of sec. 2 of the Act of April 24, 1901, P. L. 102, which provides that “the license shall not be issued to any person .... until he ... . shall have executed a bond to the commonwealth .... with two sufficient sureties .... conditioned for the faithful observance of all the laws of this commonwealth relating to selling or furnishing .... spirituous .... liquors,” etc.

I would affirm the judgment of the Superior Court.

Mb. Justice Potter,

dissenting:

I am not able to agree with the conclusion reached by the majority of my brethren, that the court of quarter sessions granted to this appellant a license to sell liquor under the Brooks law. As the judge of the court of quarter sessions says, in his opinion filed in dismissing the motion for a new trial, “There was no appearance even, of a purpose to grant the defendant the Brooks license. The application on which his present license issued, states on the outside or back, that it is a petition for an eating house license, and inside reads that it is a petition for a license to sell vinous, malt and brewed liquors, and it is such a license and none other, that the court undertook to grant.”

The opinion of the court of quarter sessions shows the existence in Chester county of a local practice by which licenses have been granted to eating houses, which did not authorize the sale of spirituous liquors, but authorized only the sale of vinous, malt or brewed liquors. It is stated that “the defendant, who has for many years conducted an eating house in West Chester, after the passage of the Act of May 13, 1887, P. L. 108, annually applied for and received a license of the character above described, to sell vinous, malt and brewed liquors, as sanctioned by the old eating house license, until a few years ago, when having greatly improved his building, he asked for the retail liquor license of the act of 1887. Feeling as did Judge Futhey, that this license should be confined to the necessary hotels of the county and concluding that his house was not needed as a hotel, because of its proximity to existing hotels, and the absence of occasion for more, the court refused to grant this license, but under another and appropriate application granted him the other form of license. Such a license he continued to apply for and receive, and such a license he held, authorizing the sale only of vinous, malt and brewed liquors, at the time he was convicted. On the trial the proof was conclusive and unquestioned, that he sold spirituous liquor, what was substantially a low grade of whisky, very much richer in alcohol than any vinous, malt or brewed liquor, such a percentage as could not be produced by fermentation, but only by distillation. The jury were instructed that the defendant had no license to sell spirituous liquor, and that if he had done so, it was their duty to convict him.” Under these instructions, appellant was convicted.

Both in the court of quarter sessions and in the Superior Court the conviction was sustained upon the theory that if the so-called eating house license issued to appellant was valid, it did not pretend to give him any authority to sell spirituous liquors. If the license was invalid, then appellant had no license at all, and of course had no right to sell alcoholic liquors. It seems to me that this theory is more reasonable and logical, than that appearing in the majority opinion, which holds that because some kind of a license was issued to appellant, it must necessarily have been a license to sell liquors under the Brooks law. This theory cannot be sound. To quote again from the trial judge, "Surely, if one should ask for, and receive a written authorization from the court to sell cider and should pay the license fee prescribed for a Brooks retail license, it would not be contended that he had been granted the latter license.”

The court of quarter sessions erred in attempting to grant the so-called eating house license, but I cannot see that its mistake in that respect affords any basis for the conclusion that its action was equivalent to the grant, under the Brooks law, of a license to an applicant it deemed entirely unfit to receive such a license. The eating house license was simply void, as the present law confers no right to issue a license permitting the sale merely of vinous, malt or brewed liquor. There was in the Act of March 31, 1856, P. L. 200, and in the Act of April 20, 1858, P. L. 365, provision for the granting of licenses for the keeping of eating houses; but these licenses were to authorize the sale of no intoxicating liquors, except" domestic wines, malt and brewed liquors. Under these acts, it seems to have been the practice of various courts of quarter sessions to grant eating house licenses up to the time of the passage óf the Act of May 13, 1887, P. L. 108, known as the Brooks high license law. As instances of such licenses, see Gilbert's License, 2 Chest. Co. Rep. 269; King’s Application, 2 Pa. C. C. Rep. 17; Morris’s License, 2 Pa. C. C. Rep. 79. But the act of May 13, 1887, put an end to any authority to issue such eating house licenses, by the sweeping character of the prohibition in the first section, which provides “that it shall be unlawful to keep or maintain any house, room or place, hotel, inn or tavern, where any vinous, spirituous, malt or brewed liquors, or any admixture thereof, are sold by retail, except a license therefor shall have been previously obtained as hereinafter provided.”

There is nothing in the law to authorize the issue of the so-called eating house licenses, and the attempt to issue such an one in this case was therefore void. But why should that ineffective action be vitalized by this court, by construing it to be the grant of a license under the Brooks law, thus giving to appellant something for which he did not apply, and which the court of quarter sessions considered him unfit to receive, and which, in the exercise of its proper discretion, it said it would not grant?

I would affirm the judgment of the Superior Court.

Stewart, J., concurs in this dissent.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Lockard v. Vare, Appellants.

      Negligence — Defective pavement on sidewalk — Evidence—Question for jury.

    1. In an action by a wqman against a firm of paving contractors to recover damages for personal injuries sustained by a brick in a sidewalk sinking under the plaintiff’s weight, at a point in a sidewalk which the defendants were under contract to maintain in good condition, the case is for the jury where the plaintiff’s-testimony as to the cause of the accident is corroborated by that of a woman who lived in the house in front of which plaintiff fell, • to the effect that she saw bricks being relaid a day or two before the accident, and that the work had not been properly done, although defendant’s foreman testified that he had relaid the pavement in a proper manner six days before the accident.

      2. In such a case' it is not error to admit in evidence the testimony of the corroborating witness, that she saw a large hole in the pavement an hour after the accident.

      Evidence — Witness—Competency of witness — Party dead — Action in tort — Act of May S3, 1887, P. L. 158.

    3. In an action of trespass against a partnership to recover damages for personal injuries, where one of the defendants dies after issue is joined, and the jury are sworn as to the surviving partners, the plaintiff is incompetent to testify as to the circumstances of the accident which happened in the lifetime of the deceased partner, although she may testify as to matters that occurred between her and the surviving partners.
    4. The Act of May 23, 1887, P. L. 158, relating to the competency of witnesess, makes no distinction between actions sounding in tort and those arising from contract.
    Argued Jan. 4, 1911.
    Appeal, No. 133, Jan. T., 1910, by defendants, from judgment of C. P. No. 1, Phila. Co., June T., 1907, No. 946, on verdict for plaintiff in case of Alida S. Lockard v. George A. Vare et al., trading as Vare Brothers.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Brégy, P. J.
    At the trial the court admitted under objections and exceptions the testimony of the plaintiff. [1]
    The court also admitted the evidence of Iola E. Wright as to the condition of the sidewalk an hour after the accident. [2]
    The facts of the case appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,000. Defendants appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3) in refusing binding instructions for defendants.

      Francis Skunk Brown, of Simpson & Brown, with him Arthur S. Minster, for appellants.
    The plaintiff, in an. action against a partnership, to recover damages for personal injuries, alleged to be due to the negligence of the copartners and their agents, is not a competent witness when one of the partners has died since the accident and before the time of trial: Brady v. Reed, 87 Pa. Ill; La-cock v. Com., 99 Pa. 207; Irwin v. Nolde, 164 Pa. 205; Kyte v. Foran, 167 Pa. 252; Robbins v. Farwell, 193 Pa. 37.
    March 20, 1911:
    The learned trial judge should have given binding instructions for the defendants as the accident which caused the injury to the plaintiff was not shown to have been caused by the negligence of the defendants: Sandt v. North Wales Fdy. Co., 214 Pa. 215; Laven v. Moore, 211 Pa. 245; Wall v. Lit, 195 Pa. 375; Lerner v. Philadelphia, 221 Pa. 294.

      Frederick J. Knaus, for appellee.
    Plaintiff was a competent witness: Ash v. Guie, 97 Pa. 493; Githers v. Clarke, 158 Pa. 616; Strause v. Braunreuter, 4 Pa. Superior Ct. 263; Lancaster County National Bank v. Henning, 171 Pa. 399.
    The case was for the jury: Reel v. Elder, 62 Pa. 308; Lehigh Coal & Nav. Co. v. Evans, 176 Pa. 28; Snyder v. Bougher, 214 Pa. 453; Dalmas v. Kemble, 215 Pa. 410; Perkiomen R. R. Co. v. Kremer, 218 Pa. 641.
   Opinion bt

Mr. Justice Brown,

The firm of Vare Brothers had a contract with the Bell Telephone Company in connection with the construction of a conduit system in the city of Philadelphia. In performing this contract they made an excavation at a certain point in the sidewalk on Fifty-second street. They subsequently filled this in and relaid the pavement. By the terms of their contract they were required to keep it in good condition, to the satisfaction of the board of highway supervisors of the city, for a period of not less than three years. On February 14, 1906, as the plaintiff was walking over that part of the street which had been repaved by the contractors, a brick sank under her weight and she was thrown forward, sustaining the injuries for which she seeks compensation in this action. The court was asked to direct a verdict for the defendants, because one of their foremen, who had charge of the work, testified that the pavement had been relaid in a proper and workmanlike manner by February 8 — six days before the accident. Whether it had been so relaid and the work completed by February 8, depended upon the testimony of a witness, whose credibility was for the jury, and it was by no means clear from his testimony that the work had been completed on the day. stated, for, on cross-examination, he admitted that he was testifying from a record and was unable to recall from memory the exact date when the work was finished. .Against his testimony there was that of a woman in front of whose house the plaintiff fell. She testified that she saw the bricks being relaid a day or two before the accident, and her testimony tended to show that the work had not been properly done. As it was the duty of the defendants to relay the pavement and to keep it in good condition for a period of not less than three years, the question of their negligence as the proximate cause of plaintiff’s injury was for the jury, and in his charge, no portion of which has been assigned as error, the trial judge carefully and correctly submitted that question to them, as well as the contributory negligence of the plaintiff.

The second assignment complains of the court’s admission of the testimony of Iola E. Wright as to the great hole which she testified she saw in the pavement. It is urged that this testimony ought not to have been received without proof that the condition of the pavement when the witness saw the hole in it was the same as at the time of the accident. She lived, as already stated, in the house in front of which the sidewalk gave way as the plaintiff walked over it, and she saw the hole an hour afterwards. In view of the very brief interval which elapsed from the time she saw the accident until she went out on the pavement, a fair inference to be drawn by the jury was that its condition had not changed, and her testimony was, therefore, properly received.

While there is no merit in the second or third assignments of error, the first calls for a reversal of the judgment. The action was brought against George A. Vare, AVilliam S. Vare and Edwin H. Vare, trading as Vare Brothers. After issue was joined, one of the defendants, George A. Vare, died, and when the case was called for trial, counsel for plaintiff asked “that the jury be sworn as to William S. Vare and Edwin H. Vare only, surviving partners of George A. Vare, William S. Vare and Edwin H. Vare, late trading as Vare Brothers, George A. Yare having died.” This was done, and the plaintiff was called as a witness in her own behalf to what had happened to her in the lifetime of the deceased partner, for the consequences of which she was seeking to hold liable the partnership of which he had been a member. He was dead, and his death dissolved the partnership; but his interest in it, upon his death, became an asset of his estate. The duty of the surviving partners was to look after this interest, as well as their own, in the partnership, for the title to all the partnership property had passed to them upon his death, and they were the parties defendant upon the record.

The Act of May 23, 1887, P. L. 158, relating to the competency of witnesses, makes no distinction between actions sounding in tort and those arising from contract; and it was so ruled in Irwin v. Nolde, 164 Pa. 205. This is an action in tort against surviving partners, in which the plaintiff seeks to obtain a judgment that will bind the interest of a deceased partner in the partnership, and, by the express words of clause e, sec. 5, of the act of 1887, she is not a competent witness, unless the matters to which she would testify occurred between her and the surviving partners. She was called for no such purpose. Her testimony was as to matters occurring in the lifetime of the deceased partner, and he, if living, might have contradicted her. His lips having been closed by death, evenhanded justice requires that her mouth be sealed: Karns et al. v. Tanner, 66 Pa. 297; but as to matters that occurred between her and the surviving partners, both may testify and there will be no inequality between them. Neither can have a vantage ground over the other under the right given them by the statute to testify to matters which occurred between them during the lifetime of the deceased partner. Two cases are cited in support of the competency of the plaintiff, but neither of them sustains it, and each seems to be misunderstood by counsel for appellee. In the first — Strause v. Braunreuter, 4 Pa. Superior Ct. 263 — the issue was made up and tried between two living parties — a plaintiff suing in his own right and a defendant defending in hers — and the testimony which she proposed to give related to matters occurring between her and the agent of the living plaintiff, concerning which he had testified fully at the instance of the plaintiff. In the other — Lancaster County National Bank v. Henning, 171 Pa. 399 — the suit was against an alleged surviving partner of a firm known as Rhodes & Henning. The existence of the partnership was denied in the affidavit of defense, while here, under the rule of court, it was admitted. Henning was held not to be within the disqualification' in clause e, sec. 5, of the act of 1887, because, as was clearly pointed out by Mr. Justice Mitchell, he was not testifying against the interest of any deceased party. A very different situation is presented here. The plaintiff was permitted to testify generally as to matters that had occurred during the lifetime of the deceased partner, and, her interest being adverse to his right in the partnership at the time of his death, she was within the clear disqualification of the act, which, in this action against the surviving partners, permits her to testify only as to matters that occurred between them and her.

The first assignment of error is sustained and the judgment reversed with a venire facias de novo.


author: Mb. Justice Mestkezat,

text:
    Rocap v. Bell Telephone Company, Appellant.

      Negligence — Telephone company — Bes ipsa loquitur — Act of God— Lightning.

    1. In an action against a telephone company to recover damages for personal injuries sustained by plaintiff from an electric current while he was using a telephone, it is error to submit the case to the jury where the only inference that can be drawn from plaintiff’s own testimony is that the shock received by the plaintiff if communicated by the telephone was produced by atmospheric electricity, and not by an electric current within the control of man.
    2. Where a person in using a telephone during a violent thunderstorm is shocked and injured by an electric current, and there is nothing to show any negligence upon the part of the company, the rule res ipsa loquitur cannot be applied.
    3. Where it appears by the plaintiff’s own testimony that he was shocked by using the telephone during a violent thunderstorm and the uncontradicted evidence shows that the best known device in general use for protecting persons against injury by abnormal or atmos-pherical electricity had been placed on the telephone in question, the court should give binding instructions for defendant.
    4. In such a case the failure of the telephone company to place a warning on the telephone against its use during electrical storms is not evidence to submit to the jury of the defendant’s negligence in the management and operation of the telephone, where there is no evidence that such a warning was ever placed by the defendant company or any other telephone company on telephone instruments.
    Argued Jan. 4, 1911.
    Appeal, No. 139, Jan. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 3,692, on verdict for plaintiff in case of William II. Rocap v. Bell Telephone Company of Philadelphia.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Móschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for $5,000, on which judgment was entered for $2,500, all above that sum having been remitted. Defendant appealed.

      March 20, 1911:

      Error assigned was in refusing defendant’s motion for judgment non obstante veredicto.

      Frank P. Prichard, with him James Wilson Bayard, for appellant.
    The rule res ipsa loquitur does not control the present case: Stearns v. Ontario Spinning Co., 184 Pa. 519; East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Spees v. Boggs, 198 Pa. 112; Baran v. Beading Iron Co., 202 Pa. 274; Johns v. Penna. B. B. Co., 226 Pa. 319; Cavanaugh v. Allegheny County Light Co., 226 Pa. 86; Stark v. Telephone Co., 225 Pa. 390.
    Under the undisputed evidence the appellant performed its full duty relative to appliances on its telephones to guard against dangerous electrical currents.

      Francis Shunk Brown, of Simpson & Brown, for appel-lee.
    The maxim res ipsa loquitur clearly applies to this case: Barnowski v. Helson, 15 L. B. A. 33; Alexander v. Nanticoke Light Co., 209 Pa. 571; East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Whitehouse v. Bys. Co., 36 Pa. Superior Ct. 581; Delahunt v. United Tel. & Tel. Co., 215 Pa. 241; Sowers v. McManus, 214 Pa. 244; Brod v. St. Louis Transit Co., 115 Mo. App. 202 (91 S. W. Bepr. 993); Olsen v. By. Co., 152 Mo. 426 (54 S. W. Bepr. 470); Clark v. B. B. Co., 127 Mo. 197 (29 S. W. Bepr. 1013); Poulsen v. B. B. Co., 18 N. Y. App. Div. 221 (7. Am. Elec. 675); Leonard v. B. B. Co., 57 N. Y. App. Div. 125 (7 Am. Elec. 683); Buckbee v. B. B. Co., 64 N. Y. App. Div. 360 (7 Am. Elec. 692).
    Appellee made out a prima facie case, and the appellant failed to offer any evidence which shifted the burden of proof: Jackson v. Telephone Co., 88 Wis. 243.
    Appellant’s failure to place a warning on the telephone against its use during electrical storms tends to establish appellant’s negligence: Kibele v. Phila., 105 Pa. 41.
   Opinion by

Mb. Justice Mestkezat,

The plaintiff is a newspaper reporter, and on the afternoon of June 21, 1906, went to the Philadelphia Country Club to report a polo match and remained to dinner that evening. About half past eight o’.clock he left the dining room and went to the telephone booth in the building to communicate with his paper. The telephone was installed at the clubhouse by the defendant company. As the plaintiff took the receiver from the hook and asked for the desired number, he received a shock and was severely injured. Alleging that his injuries were caused by the defendant’s negligence, he brought this action to recover damages. The trial of the cause resulted in a verdict and judgment for the plaintiff. The defendant has appealed, and assigns for error the refusal of its motion for judgment non obstante veredicto.

It is averred in the statement, as the cause of action, that it was the duty of the defendant as the owner and operator of the telephone pay station at the Country Club to have the same properly equipped and protected so as to prevent injury to persons using it, and that “the defendant neglected to properly equip and operate its pay-station at the said Philadelphia Country Club, and so negligently maintained and operated the same, that on the twenty-first day of June, 1906, the plaintiff while using the telephone at the public pay-station above referred to, ... . received a severe electrical shock rendering him unconscious,” etc.

There were two witnesses called by the plaintiff, himself and Dr. Francis D. Patterson. In describing the accident the plaintiff testified that he went to the telephone booth, took the receiver off the hook and asked for his number, “and instantly there was a heavy shock. I saw a flash of electricity and bolt of fire in front of my face, and the next thing I remembered is the next afternoon my daughter sitting by my bedside in the Howard Hospital. . . . That was the first time I had regained my consciousness.” As to the condition of the weather on the day of the accident, the witness says it looked threatening that afternoon and there was rumbling of thunder all the latter part of the afternoon, that he was inside the clubhouse, “was not paying much attention to the surrounding elements,” and did not know until the next day that a thunderstorm was going on at the time he went to the telephone.

Dr. Patterson testified that he was at the clubhouse that afternoon, and that it started to rain very hard early in the afternoon and there were distant flashes of lightning and thunder between half past five and six o’clock. He says that later he was sitting at dinner on a covered' veranda when a heavy storm came up, “I judge it was-about quarter after or twenty minutes after eight, suddenly there was a frightful, blinding flash of lightning— so much so that the people sitting at the same table with me all jumped up under the impression that the clubhouse had been struck, and just as we started to go indoors, somebody came running out and said a man had been struck by lightning, and I went in right away and found Mr. Rocap lying on the floor and I then examined him and found that his condition was apparently very serious. . . . He was exactly like a man who had suffered concussion of the brain. . . . He was lying some twenty or twenty-five, feet from the telephone booth just where he had fallen. . . . There was a blinding flash of-light and the people at the tables, everybody on this veranda, forty or fifty people, jumped up and thought the clubhouse was struck. Q. And that was followed by a clap of thunder? A. Followed instantly — there didn’t seem to be an appreciable space between the light and the thunder. Q. Were these such marks as would indicate that any of the current passed through him? A. The one on the front of the forehead was undoubtedly a bruise where he fell. What the one back of the ear was I am not prepared to state. It might have been an electric burn. It was due to a suffusion of blood. It might have come from a very severe bruise when he fell; I am not prepared to say that.”

The testimony of the plaintiff, it will be observed, was confined to showing the accident, the condition of the weather at the time he received his injuries, and, in rebuttal, that there was no sign on the telephone warning persons against using it during thunderstorms. The defendant company claimed that it had placed an instrument or device on the telephone at the clubhouse to prevent the discharge of electric currents during an electric storm into the telephone, and produced several witnesses having experience and technical knowledge who described the device and testified that it was a standard protection device and was at the time of the accident the best in general use and the most efficient known to the scientific world for protecting a telephone from outside or abnormal electrical disturbances, such as are due to lightning or to the telephone wire coming in contact with high voltage circuits. The witnesses, however, concurred in saying that there was no known device which would absolutely prevent lightning discharges into a telephone. It also appeared by uncontradicted evidence that the protection device on the telephone at the clubhouse was in proper working condition and had actually operated at the time of the accident.

The official records of the weather bureau at Philadelphia and the testimony of the observer in charge of the bureau show that there was a thunderstorm at Philadelphia during the evening of June 21, 1906, from 8:10 to 10:15 o’clock; and other testimony disclosed the fact that the storm was very severe and had put many telephones out of service.

This, like any other case, must be considered and decided on the facts admitted or proved in the trial court. We have referred to the material evidence produced by both parties. The credibility of the witnesses was not impugned and the evidence was entirely uncontroverted. The facts, therefore, are not in dispute. We are all of opinion that the learned trial judge erred in not giving binding instructions in favor of the defendant, and subsequently in not entering judgment for the defendant not" withstanding the verdict.

The basis of the plaintiff’s, action is negligence, and, as disclosed by the statement, it consists in the failure of the defendant company to properly equip, operate, maintain and protect its pay station at the clubhouse resulting in the plaintiff’s injuries. It was incumbent on the plaintiff on the trial of the cause to establish the negligence averred in the statement before he was entitled to recover. His counsel now contend in support of the judgment entered in his favor by the court below that the maxim res ipsa loquitur applies, that the plaintiff made out a prima facie, case and the defendant failed to offer any evidence which shifted the burden of proof, and that the defendant company’s failure to .place a warning on the telephone against its use during electrical storms was evidence tending to establish the company’s negligence.

The maxim res ipsa loquitur does "not apply to the facts of the case as disclosed by the. plaintiff’s evidence. We are not required to determine whether the maxim would have applied had the plaintiff’s evidence concluded by showing simply the accident, that he had approached the telephone, took the receiver and instantly received the electric shock which caused his injuries. It might be that as the telephone line and the electric current used in operating it were in the exclusive control and management of the defendant company and the result was so unusual and out of the ordinary in operating telephones that a fair inference might be drawn that the shock communicated to the plaintiff was caused by the defendant’s negligent operation or management of its line. It possibly could have been inferred under these circumstances, though we do not decide, that the telephonic wire had come in contact with a highly charged wire by reason of the negligent construction or maintenance of the former wire and thereby produced the electrical discharge that shocked the plaintiff. The proof of the accident and the consequent injury without more might have made out a prima facie case and sent it to a jury. But the plaintiff went beyond the mere proof of the accident, and showed the cause of it. His evidence left no reasonable ground for an inference that the accident resulted from the defendant’s negligence or improper operation or management of its line. It pointed conclusively to one cause, if the telephone had any connection with his injuries, and that was the act of God. The testimony of Dr. Patterson, the plaintiff’s witness, leaves no rational doubt that the shock received by the plaintiff, if communicated by the telephone, was produced by atmospheric electricity and not by an electric current within the control of man. Such being the only reasonable inference to be drawn from the evidence, and that, therefore, there was another cause than the defendant’s negligence which, at least, may have produced the plaintiff’s injuries, the rule res ipsa loquitur cannot be applied: East End Oil Co. v. Pennsylvania Torpedo Co., 190 Pa. 350; Allen v. Kingston Coal Co., 212 Pa. 54.

It appearing by the plaintiff’s testimony that his injuries resulted from the act of God, the maxim has no application, and a presumption of negligence does not arise. Actus Dei nemini facit injuriam. The burden was, therefore, on the plaintiff to produce affirmative proof of negligence which concurred with the act and effectively contributed to the accident. To create a liability on the part of the defendant it must have required the combined effect of the act of God and the concurring negligence to produce the injury: Baltimore & Ohio Railroad Co. v. School District, 96 Pa. 65; and if the act was so overwhelming as of its own force to produce the injury independently of the negligence shown, the defendant cannot be held responsible: Helbling v. Allegheny Cemetery Co., 201 Pa. 171.

We have discussed the evidence introduced by the plaintiff and its effect on the liability of the defendant. There was no attempt by the plaintiff to show that there was any defect whatever in the telephone, and he relied solely on the proof of the accident and his injuries to show that the telephone was not properly constructed, equipped or protected. He, therefore, failed to meet the burden imposed upon him by showing that any negligent act of omission or commission on the part of the defendant company produced or contributed in any way to his injuries. On the other hand, the defendant proved by witnesses, experienced and skilled in the use of electricity and electrical apparatus, that the telephone at the clubhouse was not defective but was in good condition, and that the best known device in general use for protecting persons against injury by abnormal or atmospheric electricity was placed on this telephone. This evidence was not contradicted or impugned in any way. The plaintiff made no attempt to meet or discredit it. It, therefore, appears not only that the plaintiff wholly failed to support the allegations of negligence contained in his statement, but that the defendant company clearly established that at the time of the accident the telephone was properly equipped, operated and protected. This fully met the duty imposed by law on the defendant in the operation of its telephone line.

It is contended by the plaintiff that the failure of the defendant company to place a warning on the telephone against its use during electrical storms was evidence to submit to the jury of the defendant’s negligence in the management and operation of the telephone. We do not regard this contention as tenable. It overlooks the well-settled and oft-repeated rule in this state that the test of negligence in methods, machinery and appliances is the ordinary usage of the business. One cannot be convicted of negligence if he employ in his business the methods and appliances in general use by those engaged in a like business; on the other hand, if he fail to use such methods and appliances and an injury results therefrom, he may be required to convince a jury that his methods and appliances were of equal or superior merit to those in general use. If a notice or warning not to use the telephone during a thunderstorm can be regarded as an appliance or equipment, it does not appear, and the plaintiff does not attempt to show, that such a notice has ever been placed by the defendant or any other company on its telephones. It may be common knowledge, possessed alike by the plaintiff and the public, that it is dangerous to use or be near a telephone or any other good conductor of electricity during a thunderstorm, but it is equally well known and the contrary is not disclosed by the evidence in this case that telephone companies do not ordinarily place signs on their telephones containing such information. If, however, a danger warning had been placed on this telephone, it would not have afforded the plaintiff any protection. He testified that he was inside the clubhouse during the evening, that the weather was not of any concern to him, and that he did not know a thunderstorm was in progress at the time of the accident. It is manifest, therefore, that such a notice would not have deterred the plaintiff from using the telephone, and thereby protected him against the electric shock which he received.

The doctrine of the electric light and power cases cited by the plaintiff is not applicable to the facts of the present case. In those cases it appeared the injury was caused by an electric current which was or should have been under the control of the defendant, and the exercise of proper care by him would have prevented the accident. Here, the undisputed testimony shows that the plaintiff was injured by a current of atmospheric electricity or lightning against which there is no absolute protection but against which the defendant company tried to protect the plaintiff and others using the telephone by placing on it the best and most efficient protection device then known. The distinction between the two classes of cases is, we think, apparent, and certainly very important. The defendant company neglected no duty which the law imposed, and, hence, it is not responsible for the injury which befell the plaintiff.

The facts of this case are not in dispute and they fail to show any negligence on the part of the defendant company which caused the plaintiff’s injuries. The learned trial judge should, therefore, have directed a verdict for the defendant, or subsequently entered judgment for the defendant notwithstanding the verdict.

The assignment of error is sustained and the judgment is reversed, and judgment is now entered for the defendant non obstante veredicto.


author: Mil. Justice Brown,

text:
    Kenworthy’s Estate.

      Wills — Legacies—Accumulations—Charity.
    Testator by his will gave the residue of his estate to trustees in trust to pay his widow out of income, and principal if necessary, an annuity in an amount named. He further directed that after the widow’s death such trustees should hold a sum named to pay the income therefrom to his granddaughter for life, and upon her death the principal to her children. Testator further gave by successive clauses in his will a number of legacies. He directed that in case of a deficiency these legacies should not abate pro rata, but should be paid in full in their order until the fund should be exhausted. At the death of the widow there was a balance of principal above the trust for the granddaughter sufficient to pay two of the legacies, and a dividend upon the third,, but not sufficient to reach the fourth which was a charity. There was also a balance of accumulated income as to the disposition of which there was no direction in the will. The accumulations, even if the testator had so directed, could not have been paid to the three legatees preceding the charity, inasmuch as this was forbidden by the Act of April 18, 1853, P. L. 503. The charity claimed the accumulations. Held, that the testator died intestate as to the accumulations, and that they were payable to his widow’s representative, and his next of kin.
    Argued Jan. 6, 1911.
    Appeal, No. 204, Jan. T., 1910, by The Methodist Episcopal Home for the Aged of Philadelphia, from decree of O. C. Phila. Co., April T., 1908, No. 192, dismissing exceptions to adjudication in Estate of Ben Kenworthy, deceased.
    Before Pell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication. Before Lamorelle, J.

      March 20, 1911:
    The auditing judge awarded the fund to the testator’s next of kin.
    Exceptions to the adjudication were dismissed in an opinion by Penrose, J.

      Errors assigned were in dismissing exceptions to adjudication.

      Albert Smith Faught, with him Avery D. Harrington, for appellant.

      G. Von Phul Jones, with him Francis S. Cantrell, Jr., and Francis S. Cantrell, for appellees.
   Opinion by

Mil. Justice Brown,

After devising his mansion house with its contents to his wife, the testator gave the residue of his estate to his executors, in trust, to be held by them during the lifetime of his widow, under a direction that they pay to her out of the income, and principal if necessary, an annuity of $10,000. By the next clause in his will, as amended by a codicil, he directed that, upon her death, the executors should hold the sum of $250,000 and pay the annual income therefrom to his granddaughter, Florence Gertrude Kenworthy, during life, and, upon her death, the principal to her children then living, and, in default of such children, to a charity named. After giving $2,000 to his executors to keep his burial lot and that of a deceased son in good repair, he made six bequests by the seventh, eighth, ninth, tenth, eleventh and twelfth clauses of his will. By the thirteenth he directed that none of these should vest or be payable until after the death of his wife, and, by the fourteenth, provided as follows: “In case the portion of my estate applicable to the payment of the above mentioned legacies be insufficient to pay all the above legacies, then such portions of my estate shall not be divided pro rata among the several legacies, but beginning at the first in the order set forth above, the first legacy shall be paid in full, then the second, then the third, and so on until the fund be exhausted, it being my intention to revoke any legacies or legacy which the fund is not sufficient to reach. If after paying those in full so far as my estate as aforesaid is sufficient there is a balance left but not enough to pay the next succeeding legacy in full, then that balance shall be paid to such.”

The widow of the testator died in 1909, and the account of the executors showed a balance of principal in their hands of $266,573.45, and unexpended income of $4,819.37. The balance of the principal in excess of the $250,000, to be held for the benefit of the granddaughter, was sufficient to pay in full the bequests given by the seventh and eighth clauses of the will and a dividend upon those given by the ninth. By the tenth the sum of $5,000 was given to the appellant, the Methodist Episcopal Home for the Aged, of Philadelphia, and the single question raised on this appeal is whether the accumulation of income, which the learned court below treated as a fund passing under the intestate laws to his widow and next of kin, should.have been awarded to it and not to them.

The testator clearly did not contemplate any accumulation of income. On the contrary, he was apprehensive that the income from his estate during the lifetime of his widow might be insufficient to pay her the annuity of $10,000, and, that it might not be reduced, he directed that, if necessary, the principal should be used to secure the full payment of the annual allowance to her. It is more than likely that his reason for making no direction as to accumulated income in excess of the $10,000 was his belief that there would be no surplus; but the law is not concerned as to this. It is sufficient to know that he gave no direction as to accumulations, and this is what the appellant seems to forget. If he had directed that the accumulations should be paid to the legatees named in the three clauses preceding the tenth — which gives a legacy to the appellant — such direction would be void under the act of April 18, 1853; but, on the other hand, a direction to pay them to the appellant — a charity — would be valid, and, if the testator had so directed, it would now be entitled to receive them. As he gave no direction of any kind as to what should be done with them, there is, of course, nothing in his will to indicate where they are to go, and they, therefore, of necessity, passed under the intestate laws to his widow and next of kin: Howell’s Est., 180 Pa. 515; Martin’s Est., 185 Pa. 51. But, apart from this, the claim of the appellant is made in the face of the clearly expressed intention of the testator that the legacy given to it is not to be paid, in view of the insufficiency of his estate to pay all of the legacies given by the preceding clauses of the will. If the accumulations should be awarded to it on account of its legacy, to the exclusion of the preceding legatees, that would be done which, in the words of the learned judge below overruling the exceptions to the adjudication, the testator “could not have intended.”

Decree affirmed and appeal dismissed at appellant’s costs.