text:
    Radcliffe v. Hollyfield, Appellant.

      Malicious prosecution — Charge—Cuilt or innocence of plaintiff.

    On the trial of an action for malicious prosecution, it is reversible error for the court to charge in such a way that the jury may be led. to believe that the crucial test of the plaintiff’s right to recover was his guilt or innocence; and this is the case although the court may have correctly stated the law in other parts of the charge, and the language, complained of was an inadvertence.

      Malicious prosecution — Advice of counsel.

    The advice of counsel operates as a defense in an action for malicious prosecution only when sought in good faith and founded on a complete and accurate statement of all the facts within the knowledge of the prosecutor.
    Argued Oct. 18, 1906.
    Appeal, No. 132, Oct. T., 1906, by defendant, from judgment of C. P. Washington Co., Feb. T., 1905, No. 256, on verdict for plaintiff in case of Fred Radcliffe v. C. C. Hollyfield and the Singer Sewing Machine Company.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Pot-tee, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for malicious prosecution. Before McIlvaine, P. J.
    The court charged in part as follows:
    [Now, the question arising here is — did Mr. Radcliffe embezzle or fraudulently appropriate any part of these items that have been enumerated to his own use? Now, gentlemen, the plaintiff sets up one theory and the defendant another. The plaintiff claims that he had been in the employ of the Singer Manufacturing Company for quite a while. He has narrated to you the manner in which the business is done, the goods shipped to the local office at Charleroi; how the company keeps track of the business and how the returns are made by the agent, and he claims that in this settlement where this $98.60 is claimed to be due, that it was a disputed claim. I believe the plaintiff on the stand, the last day that he was called back, denied that he owed the company anything, said that if there was a proper settlement and he was given credit for all the commissions that were due him, that they still owed him something yet. Now, his theory is — his contention is that if you would find that that was true — that the manner the business was run there was such that these claims were fairly disputed as to whether he was accountable for them or not, would negative the idea entirely, and conclusively rebut it that he fraudulently appropriated any of this property to his own use. And that would be true, gentlemen; a man who occupies a trust relation such as Mr. Radcliffe did there, that is, if the accounts of a man, that was managing property to be sold and to account for the proceeds, get into such shape that there is fairly disputed question between them as to what is due or whether he owes anything at all or not, that raises such a condition of affairs as to rebut the idea that the property in dispute was fraudulently appropriated. If there was a fair claim that he should retain that property in order to meet the claim that he had against the company, why that would not be a fraudulent appropriation. It is just the same question exactly as that involved in larceny. If a perfect stranger break into your barn at night and take away a horse and sell it and put the money ill his pocket, there cannot be very much doubt about his intent being felonious. But if he happen to be a neighbor of yours and you had bought that horse from him a day or so before and had made misrepresentations and cheated him so that he claimed that the title did not pass to you and he went over to jour stable and took it back to his place and sent you word that he rescinded the contract and had taken the horse, why j'ou would not have a very good show to sustain a charge of larceny, because the criminal intent would be negatived by the circumstances that surrounded the taking, although the physical act of taking might be just exactly the same in one case as the other. And the same way in a case where there is a settlement between two parties. If the facts in the case show that the property that is alleged to be still in the hands of the agent is retained by him and he refuses to account for it on what is a fair showing of the case that he does not owe the other party anything, why it would negative the idea that he fraudulently intended to appropriate it.
    Now, that is the claim here, as I understand it, of the plaintiff; he claims that the circumstances surrounding the conduct of the business and the liability to mistakes and things of that kind account for these different things here that are named by the company as being in the possession of the plaintiff, and that if there was an honest settlement that he would not owe them anything. If he does not owe them anything, of course he has not fraudulently appropriated anything that was committed to his hands.
    Now, gentlemen, as to the parts of the machines — needles, etc., he has accounted for some of these by showing that another party had taken them, and perhaps the same may be said in regard to the collections and these overpaid commissions ; so that the contest narrows itself down very largelyto the two machines — whether or not he has embezzled the two machines that are missing.
    It is admitted here, or at least claimed by the defendant, that it has been sufficiently proven and not seriously contested, that there were two machines placed in the hands of the plaintiff Radcliffe and for which he receipted, that have not been returned and that they are missing. Now, did he fraudulently appropriate those machines, either the machines themselves or the money that they may have been sold for, if they were sold, to his own use ?] [1]
    [We have a well-established principle, gentlemen, that where a man who is a layman, and not supposed to know the law, goes to one learned in the law, and especially would that be true where he went to the district attorney who is under oath to represent fairly and honestly both the commonwealth and the defendant in criminal prosecutions — where he goes to the district attorney-and honestly lays all the facts bearing upon the question before him, and the district attorney tells him that those facts make out a case of probable cause, for him to go ahead and make an information; it is a complete protection. Because that very act of going before a district attorney and telling him all the facts and following his advice conclusively negatives the idea of malice, and it always ought to be conclusive on the question of probable cause, at least until the district attorney would be in some way shown as being in collusion with him — and of course there is nothing of that kind here in this case. Now, you see that this is another condition of affairs which may exist in cases of this kind that must also have the consideration of a jury. You will notice that I said that where a man went before the district attorney and gave him all the facts bearing on the question and the district attorney adyised him and he followed his advice, it is a complete protection. Now, it very frequently happens that the claim is set up by a plaintiff in cases of this kind where that defense is injected that the defendant when acting as the prosecutor had not told all the facts that he should have told the district attorney; lawyers all know how frequently they give advice that does not bring good results and sometimes the client may justly blame the lawyer, but in nine cases out of ten it is not the lawyer’s fault; it is the client’s fault because he told him a great many things that he could not establish; when he advised him to proceed in a certain case it was on condition that the client that was getting the advice was telling the whole truth. Now, it is very important here in a case of this kind to know that the -whole truth was told by Mr, Hollyfield to the district attorney because the district attorney’s advice is a perfect protection if he revealed what was substantially the whole truth. It was not necessary, of course, to take as much time in telling the district attorney as we have in trying the case, but did he honestly in good faith substantially lay all these material facts before the district attorney that are involved in this case ? If he did and the district attorney advised the prosecution, that is a protection. Now, that is controverted here and it will be for you to say, gentlemen, whether or not Mr. Hollyfield, taking the district attorney’s testimony and his own testimony, whether or not he failed to give the plaintiff’s theory here of this case to the district attorney when in good faith he ought to have done that. Now, that is the claim of the plaintiff, that is that if he wanted to be honest about the matter he ought to have given to the district attorney what he knew was the claim of the plaintiff. As I said before, of course, it would lead again (if that was not done) to the question»whether or not the claim of the plaintiff in regard to the lost machines was a reasonable claim to be made in view of the other facts found.
    Now, gentlemen, there is something said here by the district attorney that requires me to say a word further.. The district attorney says that at a certain stage in his interview with Mr. Hollyfield he said to him : “ I don’t think you need to say anything further about the matter; what you have said already is enough to show probable cause here and you are justified in making an information on what you have already stated.” Well, now, whether or not that relieved Mr. Hollyfield is also a question for the jury. In case Mr. Hollyfield had stated what he thought was substantially and what was substantially all the matters involved, why stopping him there by the district attorney and saying that was enough would be a protection. But if he had only told half his story and it was the incriminating part of his story and there was another part of it back that explained away those incriminating circumstances — it would have been Mr. Hollyfield’s duty to have said to the district attorney: “ Well, you had better hear the other half of this story because it is a little different — other than that I have told — and it may modify your opinion.” The district attorney had a right to say that because he meant by saying that, that if that is- the condition of this case and there is nothing to qualify it there is probable cause there and go ahead, and if Mr. Hollyfield knew something that would explain away that, then it would be his duty to say to the district attorney, “ I have other matters that may modify your opinion,” and he should have told him the whole thing, and if he purposely refrained from doing that and allowed the district attorney to be substantially misled in that way by not having the whole story, then it would not be a protection, because that would not be an honest narration of all the facts that he ought in law to lay before the attorney in order to get the advice that would be a protection.] [2]
    January 7, 1907:
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Errors assigned were (1, 2) above instructions, quoting-them.

      Norman E. Clark, with him W. S. Parker and Winfield McIlvaine,

    for appellant, cited: Seibert v. Price, 5 W. & S. 438; Smith v. Ege, 52 Pa. 419; Gilliford v. Windel, 108 Pa. 142; Cooper v. Hart, 147 Pa. 594; Fisher v. Forrester, 33 Pa. 501 ; Sutton v. Anderson, 103 Pa. 151; Bankell v. Weinacht, 99 App. Div. 316 (91 N Y. Supp. 107); Bruff v. Kendrick, 21 Pa. Superior Ct. 468; Scott v. Dewey, 23 Pa. Superior Ct. 396; Ruffner v. Hooks, 2 Pa. Superior Ct. 278; Mitchell v. Logan, 172 Pa. 349; Laughlin v. Clawson, 27 Pa. 328.

      R. W. Irwin, of Irwin, Wiley & Morgan,

    for appellee, cited: Smith v. Walter, 125 Pa. 453; Barhight v. Tammany, 158 Pa. 545; Bell v. R. R. Co., 202 Pa. 178; Smith v. Ege, 52 Pa. 419; Bernar v. Dunlap, 94 Pa. 329 ; MacDonald v. Schroeder, 214 Pa. 411; Mitchell v. Logan, 172 Pa. 349; McCarthy v. DeArmit, 99 Pa. 63; Mahaffey v. Byers, 151 Pa. 92; Leahey v. March, 155 Pa. 458.
   Opinion by

The part of the charge covered by the first assignment of error is open to the objection that it submitted to the jury a question not involved in the issue and made the liability of the defendant depend upon the guilt or innocence of the plaintiff. The plaintiff had been arrested and prosecuted at the instance of the defendant on the charge of embezzlement as agent or bailee of sewing machines and supplies, consigned to him for sale or lease. In submitting the case it was said: “Now, the question arising is — did Air. Radcliffe embezzle or fraudulently appropriate any of those items that have been enumerated to his own use?” Following a review.of the testimony this question was repeated in substantially the same words. The real issue, whether the prosecution was brought in good faith and on probable cause, was very clearly stated in other parts of the charge, and the instruction was given that probable cause does not depend on what may appear at the trial but upon the knowledge and reasonable belief of the prosecutor when the prosecution was begun. The error complained of did not result from a misunderstanding by the learned judge of the law governing the action. It was inadvertently made in presenting to the jury the contentions of the parties, that of the plaintiff being that there was an honest dispute whether there was anything due by him on a settlement of his accounts, and that of the defendant that there had been an actual embezzlement. It is evident from the whole charge that it was the intention of the court to submit to the jury only the question whether at the time of the examination of the plaintiff’s accounts, before the prosecution was begun, there were reasonable grounds to suppose that he was guilty of embezzlement. But notwithstanding the clear and correct statements of the law in other parts of the charge, the jury may have been led to believe that the crucial test of the plaintiff’s right to recover was his guilt or innocence. We are therefore constrained to reverse the judgment.

The remaining assignments of error are without merit. The advice of counsel operates as a defense only when sought in good faith and founded on a complete and accurate statement of all the facts within the knowledge of the prosecutor. Whether the defendant had sought the advice of the district attorney and made to him a full disclosure of all the facts within his knowledge, or had applied to him for assistance in bringing a prosecution already determined upon were matters of dispute and were properly submitted to the jury.

The judgment is reversed with a venire facias de novo.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Roney, Appellant, v. Westlake.
    Bes judicata — Promissory notes — Revenue stamps.

    A verdict and judgment in favor of the defendant in an action on a promissory note which was not stamped with an internal revenue stamp, is' res judicata as to a subsequent action between the same parties on the same note after a revenue stamp had been placed thereon.
    Argued Oct. 18, 1906.
    Appeal, No. 167, Oct. T., 1906, by plaintiff, from order of C. P. Washington Co., Feb. T., 1906, No. 204, entering judgment for defendant non obstante veredicto in case of John L. Roney v. John S. Westlake, Executor of Jane R. Herron, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for- plaintiff for $4,241. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      R. W. Irwin, of Irwin, Wiley & Morgan, with him J. M. Dickson, for appellant.
    There was no trial on the merits in the. first suit, and the dispute between the parties has, therefore, not been adjudicated : Weigley v. Coffman, 144 Pa. 489; Carmony v. Hoober, 5 Pa. 305; Detrick v. Sharrar, 95 Pa. 521; Birch v. Funk, 2 Met. (Ky.) 544; Loudenback v. Collins, 4 Ohio St. 251; Buchanan v. Banks, 203 Pa. 599 ; Tracy v. Merrill, 103 Mass. 280; Maxwell v. Clarke, 139 Mass. 112 (29 N. E. Repr. 224) ; New England Bank v. Lewis, 25 Mass. 113 ; Crosby v. Baker, 88 Mass. 295 ; Moloney v. Nelson, 158 N. Y. 351 (53 N. E. Repr. 31) ; Peck v. Easton, 74 Conn. 456 (51 Atl. Repr. 134).

      R. H. Meloy, with him C. L. V. Acheson, for appellee.
    The judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar; or, as evidence, conclusive between the same parties upon the same matter directly in question in another court: Duchess of Kingston’s Case, 2 Smith’s Leading Cases, *784 ; Marsh v. Pier, 4 Rawle, 273.
    January 7, 1907 :
    No one can object to a judgment which he has permitted to be rendered through his own carelessness, neglect or ignorance: Pray v. Hegeman, 98 N. Y. 351; Davies v. Mayor, etc., of New York, 93 N. Y. 250 ; Smith v. Smith, 79 N. Y. 634; 21 Amer. & Eng. Ency. of Law, page 217, note 1: Bassett v. Conn. River R. R. Co., 150 Mass. 178 (22 N. E, Repr. 890) ; Smith v. Whiting, 11 Mass. 445 ; Ewing v. McNairy, 20 Ohio St. 315. '
    It is the issue that is concluded, not the evidence, and any fact attempted to be established by evidence and controverted by the adverse party may be 'said to be in issue : King v. Chase, 15 N. H. 9 ; Agate v. Richards, 18 N. Y. Super. Ct. 456; Kilheffer v. Herr, 17 S. & R. 319 ; Rauwolf v. Glass, 184 Pa. 237; Long v. Bank, 211 Pa. 165 ; Hamner v. Griffith, 1 Grant’s Cases, 193 ; Rockwell v. Langley, 19 Pa. 502; Raisig v. Graf, 17 Pa. Superior Ct. 509 ; Bell v. Allegheny County, 184 Pa. 296 ; Schwan v. Kelly, 173 Pa. 65; Larkins v. Lindsay, 205 Pa. 534; Fayerweather v. Ritch, 195 U. S. 276 (25 Sup. Ct. Repr. 58) ; Kay v. Gray, 30 Pa. Superior Ct. 450; Logan v. Caffrey, 30 Pa. 196; Miller v. Manice, 6 Hill (N. Y.), 114; Zimmerman v. Zimmerman, 15 Ill. 84.
   Opinion by

Mr. Justice Mestrezat,

On April 15, 1905, John L. Roney, the plaintiff in the present suit, brought an action of assumpsit at No. 177, May Term, 1905, of the common pleas of Washington county, against Jane R. Herron, the present defendant’s testatrix, to recover on a promissory note of which the following is a copy :

“ $3,000.
August 18, 1899.
“ One day after date I promise to pay to the order of John L. Roney three thousand dollars without defalcation for value received.
[Seal] “Jane R. Hebbon.
Witness :
[Seal] John Andebson.”

The defendant appeared and pleaded non assumpsit. The case was tried before a jury, and a verdict was rendered for the defendant. A motion for a new trial was heard and overruled, and, on January 20,1906, judgment was entered on the verdict.

On February 8,1906, John L. Roney brought the present action of assumpsit in the common pleas of Washington county against John S. Westlake, executor of Jane R. Herron, deceased, and the statement claimed to recover the debt and interest due on the note on which the former action was brought. The defendant pleaded non assumpsit, payment, set-off, statute of limitations, and “ that all matters set forth in the plaintiff’s statement had been adjudicated as will appear by the record at No. 177, May Term, 1905, of this court.” On the trial of the cause, the defendant put this record in evidence to sustain his plea of res judicata. The court directed a verdict for the plaintiff on the evidence submitted, and reserved the question whether the plaintiff’s claim had been adjudicated in the former action. Subsequently, in an elaborate and satisfactory opinion, the court entered judgment for the defendant on the question reserved. The plaintiff has appealed. An examination of the record of the first case shows that on th§ trial the plaintiff proved the execution of the note by the attesting witness. The note was then offered in evidence and, upon objection by defendant’s counsel, was excluded on the ground that it was not stamped as required by the war revenue act of congress. The plaintiff offering no additional testimony, the jury under the instructions of the court rendered a verdict for the defendant on which judgment was subsequently entered.

A month prior to bringing the present suit, the plaintiff had the collector of customs place the proper revenue stamp on the note. On the trial of this cause, the plaintiff having proved the maker’s signature put the note in evidence and rested. The defendant then put in evidence the record of the former action, and the case was closed. Subsequently judgment non obstante veredicto was entered for the defendant. The only question on this appeal is whether this record is, as held by the court below, a bar to the present suit. It is difficult to see how this question can be answered in the negative. In the two actions, there is identity of the note sued on, of the cause of action, and of the parties, and both actions were heard and determined by the same court which was of competent jurisdiction. The issue in both actions was the same. At the time of bringing the first suit, the note was due, and, if genuine and not paid, the plaintiff had the right to recover, but the pleadings required him to sustain his action by competent evidence. He proceeded on the trial to meet this requirement in the case. He proved the maker’s signature by the attesting witness, sufficiently so at least to admit the note in evidence, if there was no other legal ground for excluding it. The next step in the progress of the trial, and one absolutely necessary to be taken to entitle him to recover, was to put the note in evidence. He offered the note, but it was excluded by the court on the ground that no United States revenue stamp had been placed upon it. So far as the evidence in the case discloses, the note was genuine and unpaid, and the only reason urged or assigned for excluding it was the failure to stamp it. Of course, the note upon which the suit was brought not being in evidence, the court was compelled by the insufficiency of the testimony submitted by the plaintiff to direct a verdict for the defendant. The judgment entered upon the verdict was not appealed from nor reversed, and is therefore conclusive upon the parties as .to the issue therein adjudicated.

There is and can be no doubt as to the issue raised by the pleadings, and determined by the trial and judgment in the first action, and that is, whether Jane H. Herron signed, sealed and delivered to the plaintiff the note, and whether she or her estate still owed the claim at the time the suit was brought. The record conclusively shows this to have' been the issue tried and determined in the first suit. The issue was tried before the court and a jury in the usual, ordinary way in such cases, and the trial resulted in a verdict in favor of defendant, not on a technicality, but on the merits of the case, and because the evidence of the plaintiff was not sufficient to sustain the issue directly raised by the pleadings. The plaintiff was required to support the issue formed by the pleadings by sufficient evidence, and if he withheld the evidence or any part of it and the verdict and judgment for that reason went against him, he is concluded. This is equally true if the verdict was adverse to him because the court, though erroneously, excluded evidence which, if admitted, would have produced a different result. In 1 Freeman'on Judgments, sec. 272, the learned author discusses the question of a judgment as an estoppel in a subsequent action and, citing numerous American and English authorities to support the text, says : “ That he (the plaintiff) will not be allowed to bring another action, because in the first he gave no evidence of his demand; that he will not be permitted to reserve, or from any cause not to produce, part of his evidence; and that the judgment will be conclusive as to every matter which he could have proved in the first suit, and which was not proved nor withdrawn. ... If the claim is specifically embraced in the pleadings, the presumption is, that it was presented at the trial, and considered in the rendition of the judgment. If a court erroneously rejects evidence, offered to prove a claim or defense, on the ground that it is inadmissible, such claim, nevertheless, on rendition of the judgment, becomes res judicata, and so remains until the judgment is vacated or reversed by some appropriate proceeding. ... A judgment of a court possessing Competent jurisdiction is final, not only in reference to the matters actually or formally litigated, but as to all other matters which the parties might have litigated and had decided in the cause. A party cannot try his action in parts. The judgment is conclusive, not only of the matters contested, but as to every other thing within the knowledge of the complainant which might have been set up as a ground for relief in the first suit.”

In -the present suit, the record discloses that it is between the same parties and was brought on the same note or for the samé cause of action as the former suit. It is obvious that it would require the same evidence to sustain both actions, which, it is said in numerous cases and approved by Judge Fbeeman in his work on judgments, is the test as to whether a judgment is a bar to a subsequent action: 1 Freeman on Judgments, § 259 and cases cited in note including Marsh v. Pier, 4 Rawle, 273. It is contended, however, and it is the ground on which the plaintiff seeks a reversal on this appeal, that the former judgment was not upon the-merits of the case but because “ the plaintiff could not call upon the estate of Jane R. Herron to pay the note until he had it properly stamped.” In other words, the plaintiff contends that the only question decided in the prior action was “ whether or not the plaintiff could collect the amount of that note from the estate of Jane R. Herron without having the proper revenue stamps upon the note.” This view fails to discriminate between a ruling by the court on the competency of testimony offered to prove an issue, and a decision of the issue itself raised by the pleadings and to be decided by the court and jury. The ruling by the court on the competency of the note as evidence is entirely different from a decision of the issue, which was whether the note was executed by the defendant and whether she still owed the money. Competent evidénce was required to establish the plaintiff’s claim on the note and if the evidence offered was inadmissible for any reason and the verdict and judgment were for the defendant, the question decided and which becomes res judicata is, not the court’s ruling on the evidence, but whether Jane R. Herron executed the note and she or her estate owes the plaintiff the amount of it. Assume that instead of the note having been excluded because of the absence of a stamp, the plaintiff had failed to prove the maker’s signature, the court would have been compelled to reject the note as evidence. Or suppose the note when offered was mutilated to such an extent as to render it incompetent and the court had excluded it. In these and similar cases, it will not be pretended that a verdict and judgment for the defendant because of the exclusion of the note would not be res judicata as to the right of the plaintiff to maintain a second action on the note. These cases are not distinguishable in principle from the case at bar. In all such cases, the note is disqualified as evidence, and being material and absolutely necessary to sustain the issue on the part of the plaintiff, his right to recover on the note, the matter in issue, is resolved against him and the adjudication is final. If in the instances suggested, or if as here the note is not stamped and the defendant objects to its competency as evidence and it is excluded, the plaintiff can readily protect himself by taking a nonsuit which leaves the merits of the case undetermined, and gives him an opportunity to secure proper testimony and have the case adjudicated on its merits. If, however, as in this case, the plaintiff under such circumstances permits a verdict and judgment to go against him, the finality of the judgment will not be destroyed or affected because the verdict was the result of the failure of the plaintiff to sustain his claim by competent evidence.

We are of opinion that the trial and judgment in the former case conclude the plaintiff as to the liability of Jane R. Herron or her estate on the note in suit, and is a complete bar to any subsequent suit involving the same issue and for the same cause of action.

The ease in hand must be distinguished from that class of eases where the judgment set up in bar of the second action is 'not upon the merits of the question involved in litigation. Those cases are where the judgment is founded upon a lack of jurisdiction, a nonjoinder or misjoinder of parties, plaintiff or defendant, a misconception of the form of pleading, a formal or technical defect in the pleadings, or the like: 24 Am. & Eng. Ency. of Law, 2d ed., 794; or where the suit is discontinued, the plaintiff becomes non suit, the debt is not yet due, or there is a temporary disability of the plaintiff to sue: 1 Greenleaf on Evidence, secs. 529, 530; Weigley v. Coffman, 144 Pa. 489. Judgments in those cases are not obtained upon the merits, and hence are not a bar to another action. But here, no reasons of this character existed in the first action to prevent a trial and determination of the cause upon the merits, and therefore the judgment is conclusive on the parties as to the right of the plaintiff to recover on the note.

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


author: Mr. Justice Fell,

text:
    Commonwealth v. Curcio, Appellant.

      Criminal law — Manslaughter—Charge—Province of jury. -,
    The power and duty of the jury to ascertain the degree of murder is fixed by law in this state, and a peremptory instruction that takes from it the power to do this is erroneous.
    While it is not the duty of the court to submit the question of manslaughter where there is nothing in the testimony to reduce the grade of the crime below murder, instruction on this subject should be refused only in very clear cases.

      Where a homicide is committed without malice and under the influence of sudden passion due to an adequate cause the law mitigates the offense and reduces it from murder to manslaughter.
    Argued Oct. 22, 1906.
    Appeal, No. 245, Jan. T., 1907, by defendant, from judgment of O. & T. Lackawanna Co., Feb. T., 1906, No. 8, on guilty of murder in the first degree in case of Commonwealth v. Saverio Curcio.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.
    Reversed.
    Indictment for murder.
    The circumstances of the killing are stated in the opinion of the Supreme Court.
    Defendant presented these points:
    13. Manslaughter is defined to be the unlawful killing of another without malice, expressed or implied. And if the jury believe that this killing was done with sufficient cause of provocation, and the defendant was in a state of rage and passion, without time to cool, placing the defendant beyond the control of his reason and suddenly impelling to the deed, then he cannot be convicted of any higher crime'than manslaughter. Answer : The thirteenth point asks us to give you a definition of the crime of manslaughter, and it is refused as inapplicable in this ease, because under the evidence there can be no conviction of manslaughter. [4]
    The court charged, inter alia, as follows:
    [Under the view which I take of the law and the evidence in this case there can be no conviction in any event upon the count for manslaughter and you may disregard that count. If the defendant is guilty he may be convicted of murder but not of manslaughter, and if found guilty it would be your duty to determine whether he is guilty of murder in the first degree or in the second degree.] [9]
    [Having admitted that he shot this man to death, the defendant is guilty of murder unless he did it in self-defense. To show that it was done in self-defense the burden is upon him of showing some necessity, either real or apparent, for firing the shots; or else show that he was in danger, either real or apparent, of being robbed by the assailant, the deceased, with threats of violence by which he was put in fear.] [10]
    January 7, 1907 :
    Verdict of guilty of murder in the first degree. Defendant appealed.

      Errors assigned were (4, 9, 10) above instructions, quoting them.

      David J. Reedy, with him Herbert L. Taylor, for appellant.
    In the great caution exercised in the trial of homicide, the instruction as to manslaughter should usually be given. It is only in clear cases that it can be properly omitted, whether specially requested or not. In some cases the reasons given for affirmance is that instructions were not asked and the prisoner therefore had no ground of complaint. In others instructions were asked for and the decisions are put upon the ground that the prisoner was not entitled to instructions not legitimately raised by the testimony: Com. v. Sutton, 205 Pa. 605.
    If there is any evidence whatever as to manslaughter, no matter how weak or insufficient it may appear to the court, the defendant is entitled to have the law of manslaughter given to the jury: Sparf v. U. S., 156 U. S. 51 (15 Sup. Ct. Repr. 273); McLaurin v. State, 64 Miss. 529 (1 So. Repr. 747); Potter v. State, 85 Tenn. 88 (1 S. W. Repr. 614) ; Liskosski v. State, 23 Tex. App. 165 (3 S. W. Repr. 696) ; Kelly v. State, 68 Miss. 343 (8 So. Repr. 745) ; State v. Blunt, 91 Mo. 503 (4 S. W. Repr. 394); McGuffie v. State, 17 Ga. 497; Holly v. State, 29 Tenn. 141.

      Wm. R. Lewis, district attorney, for appellee.
    Where there is no evidence on an indictment for murder which points in the remotest degree to the offense of manslaughter, the court commits no error in failing to define manslaughter: Com. v. Buecieri, 153 Pa. 535; Com. v. Crossmire, 156 Pa. 304; Com. v. Brown, 76 Pa. 319; McMeen v. Com., 114 Pa. 300; Clark v. Com., 123 Pa. 555; Com. v. Sutton, 205 Pa. 605.
   Opinion by

Mr. Justice Fell,

The assignments of error to be considered are those that relate to the refusal of the court, on request, to define the crime of manslaughter, and to the instruction that there could not be a conviction of manslaughter, and that the count charging it should he disregarded by the jury. The power and duty of the jury to ascertain the degree of murder is fixed by law in this state, and a peremptory instruction that takes from it the power to do this is erroneous : Commonwealth v. Sheets, 197 Pa. 69 ; Commonwealth v. Kovovic, 209 Pa. 465. While it is not the duty of the court to submit the question of manslaughter where there is nothing in the testimony to reduce the grade of the crime below murder, instruction on this subject should be refused only in very clear cases: Commonwealth v. Sutton, 205 Pa. 605. The cases in which the omission or refusal of, the court to instruct as to manslaughter has been sustained were cases free from possible doubt. Examples of these are Brown v. Commonwealth, 76 Pa. 319, and Clark v. Commonwealth, 123 Pa. 555, where homicides were committed for the purpose of robbery, and where instructions were not asked for; Commonwealth v. Buccieri, 153 Pa. 535; Commonwealth v. Crossmire, 156 Pa. 304; Commonwealth v. Eckerd, 174 Pa. 137, and Commonwealth v. Sutton, 205 Pa. 605, where there was not the slightest evidence to reduce the grade of the crime to manslaughter. If there is any evidence that would reduce the crime to manslaughter, the defendant is entitled to have the jury instructed upon the subject.

The defendant testified, in substance, that Ferrio, the deceased, with a companion, Rocco, with both of whom he was slightly acquainted, came to his boarding house on Saturday night; that on Sunday morning he went with them to a store in the vicinity and that on their way back to the boarding house, about noon, Ferrio called him behind a large billboard, demanded money of him, drew a stiletto and threatened to kill him if he did not give him money ; that -before they reached the house he was told by Rocco that he had better give the money demanded because Ferrio was a member of the Black Hand, and that he was afterwards given the same advice by the proprietor of the house; that he believed that the Black Hand or Mafia was an oath-bound society whose members levied blackmail on Italians and committed robbery and murder; that he promised to give the money when he reached the boarding house ,* that when at the house Ferrio again repeated his demand and threat, got up from his place at a table, took hold of the lapel of the defendant’s coat, and asked him to go out; that he.went out on the porch following Ferrio, who seized his coat at the breast and demanded money ; that he offered to give the money, and that Ferrio drew a stiletto and said that he did not want money now; .that as lie drew his revolver Ferrio let go his hold and stepped back; that he, in fear and panic because of the threats that had been made and his knowledge of Ferrio’s reputation for evil-doing, fired one shot and turned and ran away, firing his revolver aimlessly behind him.

What occurred immediately before the shooting, and the effect it was likely to have on the mind of the defendant, who was eighteen years old, is best shown by his own account of it. He testified: “ While he was sitting there and talking about the money, finally he came there and took hold of me by the coat and he said, ‘ Come on outside ; I want to talk to you.’ "When we got out on the front porch, he grabbed me by the breast and he said, ‘ Well, are. you going to give me the money or not ? ’ And he placed his hand in his pocket on the inside of his coat and I saw that stiletto, and he said, ‘ Didn’t I tell you that this stiletto is going to kill you to-day?’ When he had hold of his stiletto that way and said he was about to kill me then, I said, ‘ I am going to give you the money.’ He says, ‘ No, I don’t want the money now,’ and he pulled out his stiletto to strike me.”

If the jurors believed the defendant’s statement they might have found that the shooting was done without malice and under the influence of sudden anger, caused by the assault, or of terror caused by the threat to be carried into immediate execution. It was, therefore, error to refuse an instruction as to manslaughter and to instruct the jury that the defendant, having admitted the shooting, was guilty of murder unless he did it in self-defense. This testimony was not limited to the plea of self-defense ; it went directly to the mitigation of the crime. Where a homicide is committed without malice, and under the influence of sudden passion due to an adequate cause, the law mitigates the offense and reduces it from murder to manslaughter.

The fourth, ninth and tenth assignments are sustained, and the judgment is reversed and a venire facias de novo awarded.


author: Mr. Justice Stewart,

text:
    Kuhns, Appellant, v. H. C. Frick Coke Company.

      Negligence — Mines and mining — Contributory negligence — Nonsuit.
    In an action by an employee against his employer, a coal mining company, to recover damages for personal injuries, it appeared that the plaintiff had had an experience of two years in driving mules in a coal mine. At the time of the accident he was engaged in moving coal from the room in which it had been mined to the open shaft, by means of cars drawn by. mules. When the cars reached a certain point on the track, they entered upon a descending grade,' and it then became necessary to apply the brakes' to control the speed. There was a brake at the rear end of each car. On this particular occasion plaintiff had in charge three cars loaded with coal. When the incline was reached, he applied the brake on the first car; he was somewhat delayed in applying that on the second, but accomplished it, and then stepped down to be in position to apply the brake on the third car as it passed: He stepped down on the right hand side, where there was a rapidly diminishing clearance, as the cars progressed, between the cars and the rib or wall of the entry, with the result that he was carried or pressed into a clearance of only about twelve inches, and seriously injured in consequence. On the opposite side of the track there was a clear space of á width of three feet. Plaintiff testified that he had not gone over this particular track before. He carried a lamp at the time, and could have seen the danger if he had looked ahead. Held, that the plaintiff was guilty of contributory negligence, and that the court committed no error in entering a nonsuit.
    Argued Oct. 22, 1906.
    Appeal, No. 106, Oct. T., 1905, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T., 1903, No. 32, refusing, to take off nonsuit in case of Lorenzo Kuhns v. H. C. Frick Coke Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.'
    Affirmed.
    Trespass to recover damages for personal injuries. Before McClung, J.
    The facts relating to the accident are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off,
    ' Error assigned was refusal to take off nonsuit.

      Rody P. Marshall and James G. Montgomery,
    for appellant, cited as to lack of contributory negligence : Woodward v. Shumpp, 120 Pa. 458 ; Lee v, Woolsey, 109 Pa. 124.

      January 7, 1907 :

      Willis F. McCook,
    for appellee, cited as to the contributory-negligence on the part of the plaintiff: Haven v. Bridge Co., 151 Pa. 620.
   Opinion by

Mr. Justice Stewart,

The plaintiff was injured while at work in the coal mine of the defendant company, under the following circumstances. He was engaged in moving coal from the room in which it had been mined to the open shaft, by "means of cars drawn by mules. When the cars reached a certain point on the track, they entered upon a descending grade, and it then became necessary to apply the brakes to control the speed. There was a brake at the rear end of each car. On this particular occasion plaintiff had in charge three cars loaded with coal. When the incline was reached, he applied the brake on the first car ; he was somewhat delayed in applying that on the second, but accomplished it, and then stepped down to be in position to apply the brake on the third car as it passed. He stepped down on the right-hand side, where there was a rapidly dimishing clearance, as the cars progressed, between the cars and the rib or wall of the entry, with the result that he was carried or pressed into a clearance of only about twelve inches, and seriously injured in consequence. On the opposite side of the track there was a clear space of a width of three feet.

The plaintiff sought to'charge defendant with negligence, first, in that the clearance on the side he stepped down did not conform to the requirements of the act of May 15, 1893, relating to bituminous coal mines, providing .for the .lives, health, safety and welfare of persons employed therein, and, second, in that defendant failed to acquaint plaintiff with the danger of alighting on the right-hand side of the car at that point. The questions here suggested were argued at length, but do not call for present consideration, since whatever defendant’s negligence may have been, — and we make no expression on this subject, — it so clearly appears from the evidence that plaintiff would not have been injured by such negligence but for his own' want of care, that no recovery could have been allowed. It is admitted that on the left-hand- side of the track, immediately opposite the place where the accident occurred, there was a clearance of three feet; that this was provided as a place of safety, and that it was adequate for the purpose. Had plaintiff stepped from the car on that side, he would not have received injury. Why did he attempt the right side when the danger there must have been apparent and obvious ? Certainly not because he was called on so suddenly to act that he had not time to think or choose. His work may have required promptness, but no such instant action as precluded deliberation and circumspection. No unusual danger confronted him. He does not pretend that he was in a state of embarrassment, nor does he say that he could not have seen the danger had he looked. His repeated statement was that he had no occasion to look. At one place in his testimony he said he could not say whether he had looked or not; that he was attending to the brakes. Such admissions, in any event, must have proved fatal to the plaintiff’s case. Had he looked before he stepped down he must have seen the insufficiency of the clearance on the right. True, he says that he had not gone over this particular track before ; but this fact made it all the more necessary for him to be observant. Although it was his first trip over this route, yet he had had an experience of two years in driving in coal mines, and on this occasion carried in his hand at the time a lamp with which to guide his steps. A man may not heedlessly and recklessly encounter a danger which would have been obvious to him had he exercised his senses, even though the danger was occasioned by the neglect of another. The law expects people to exercise their senses in avoiding danger at all times. If they do not, and are injured in consequence of heedless and unnecessary exposure, the law imputes the blame to themselves, notwithstanding the negligence of another may have concurred in producing the injury. The only conclusion that a careful reading of the evidence admits of is that the plaintiff’s injuries resulted directly from his own want of care, and that the nonsuit was properly directed.

Judgment affirmed.


author: Per Curiam,

text:
    Howard, Appellant, v. Swissvale Borough.

      Appeals — Assignments of erorr — Statement of errors.

    An appeal in an equity case will be quashed where the appellant fails to comply with Rule 11 relating to assignments of error in connection with Equity Rule 92, relating to the filing in the court below of a brief statement of errors.
    Argued Oct. 22, 1906.
    January 7, 1907:
    Appeal, No. 18, Oct. T., 1906, by plaintiff, from decree of C. P. No. 2, Allegheny Ob., Oct. T., 1904, No. 1,762, dismissing bill in equity in case of Frank A. Howard v. Swissvale Borough.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elicin and Stewart, JJ.
    Appeal quashed.
    Bill in equity for an injunction.
    From the record it appeared that the appellant had not filed in the court below as required by Rule 92, a brief statement of errors, and that the assignments of error filed in the Supreme Court were not based upon any errors stated of record in the court below.

      John P. Hunter, for appellant.

      Alex. A. Patterson, of Lyon, MeKee & Mitchell, with him Joseph F. Mayhugh and William Findlay Brown, for appellee.
   Per Curiam,

The appellant’s failure to comply with Rule 11 and equity rule 92 of this court compels us to quash this appeal.

Appeal quashed.


text:
    Industrial Saving & Loan Company v. Hare, Appellant.

      Interest — Usury—Mortgage—Affidavit of defense.

    On a scire facias on a mortgage given to secure the unpaid balance of the purchase price of real estate, an affidavit of defense is insufficient to prevent judgment which avers that the amount of the mortgage included both purchase money and interest thereon covering a period of sixteen years, without disclosing what part of the amount was the purchase price of the real estate, and what part of that sum was interest, and without disclosing what was the rate of interest.

      Mortgage — Contract—Anticipation of payment.

    Where a contract for the purchase of real estate provides for the giving of a mortgage for the unpaid balance of the purchase money, with the privilege of anticipating the payment with an allowance to the mortgagor of one per cent per annum discount on the amount paid, such provision when incorporated into the mortgage contemplates an allowance for a voluntary anticipation, and not when the balance becomes due and payment is enforced by reason of a default under the terms of the contract and mortgage.

      Interest — Usury—Who may set up the defense of usury.

    In. the absence of fraud the defense of usury is personal to the debtor, or his privies in blood or estate, and if they do not choose to make it, no other person can.
    Where a party gives an obligation in payment of usury agreed to be paid by another, he cannot defend on the ground of usury.
    Where a person enters into a contract in writing to give a mortgage for an unpaid balance of purchase money, and usurious interest is included in the principal of such mortgage, and thereafter such contract is assigned to another, who executes the mortgage as contemplated by the contract, the assignee cannot set up the defense of usury.
    Argued Oct. 22; 1906.
    Appeal, No. 33, Oct. T., 1906, by defendant, from judgment of C. P. No. 2, Allegheny Co., July Term, 1905, No. 432, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Industrial Savings & Loan Company v. Samuel W. Hare and Hannah J. Hare, his wife.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage.
    Rule for judgment for want of a sufficient affidavit of defense.
    The averments of the affidavit and the supplemental affidavit of defense are set forth in the opinion of the Supreme Court.
    January 7, 1907:
    In addition to the facts set forth in the opinion of the Supreme Court it appeared that the provision in the contract relating to the anticipation of payment was incorporated into the mortgage.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      W. H. Lemon, for appellant.
    It is wholly immaterial under what form or pretense usury is concealed; if it can by any means be discovered our courts will not enforce the payment: Hartranft v. Uhlinger, 115 Pa. 270; Wyhte v. Cramer, 4 Pa. Superior Ct. 436 ; Moore v. Cameron, 93 N. C. 51; Kunkel v. Wherry, 189 Pa. 198.

      Richard A. Kennedy, with him Nelson McVicar, for appellee.
    The appellant argues that, although the word interest does not appear anywhere in the contract or mortgage, yet it is manifest because of the long period of time given the defendant to pay the mortgage debt, that it must necessarily have included interest on the deferred payments.
    This is directly in the teeth of the law as decided in Robinson v. Loomis, 51 Pa. 78.
    The authorities are clear and explicit that to constitute usury there must be a loan directly or indirectly, and that a real sale, without any intent to loan, though it may be oppressive, cannot be usurious: Beete v. Bidgood, 7 Barn. & Cress. 453.
    The right to set up usury as a defense is a personal one: Stayton v. Riddle, 114 Pa. 464.
   Opinion by

Mr. Justice Mestrezat,

By an article of agreement dated March 10, 1897, the plaintiff company sold to one Amos Steck two lots of ground in the city of Pittsburg on which was erected a brick building. The consideration named in the agreement was $7,500, payable in monthly installments of $25.00 each, beginning on April 1, 1897. Upon the payment of $750 a deed was to be executed and delivered, and the balance of the purchase money was to be secured by a mortgage on the premises, containing the same terms of payment as stipulated in the agreement, and with the privilege of anticipating the payment at any time of the amount remaining due the mortgagee, with an allowance to the mortgagor of one per cent per annum discount on the amount paid. The agreement provides that the mortgage shall contain a default clause making the balance of the debt and interest due and payable on failure to pay any sum of principal or interest for sixty days after the same becomes due and payable, and authorizing any attorney of any court of record in Pennsylvania to appear for the mortgagor and confess judgment against him for the whole principal sum and interest remaining unpaid, with an attorney’s commission of five per cent.

On December 5, 1898, Steck assigned and transferred his interest in the contract to Samuel W. Hare, and the Savings and Loan Company, by deed dated December 27, 1900, conveyed the property to Hare and his wife, who executed and delivered to the grantor their bond and mortgage to secure the payment of $6,375, the balance of the unpaid purchase money, in monthly installments of $25.00 each, commencing on February 1, 1901. The mortgage contained the default clause stipulated for in the agreement. The mortgagors continued to make the monthly payments up to and including September, 1904, but thereafter defaulted. On May 16, 1905, a scire facias was issued on the mortgage, and on November 18, 1905, judgment was entered for want of a sufficient affidavit of defense for $5,543.65. Of this sum $5,270 was the balance of the debt, and the residue was the monthly installments accruing since September 1,1904, with interest thereon, and an attorney’s commission of five per cent.

In their affidavit of defense filed June 10, 1905, the defendants allege that $7,500, mentioned as the consideration in the agreement, was not the true purchase money or'value of the property, but that it included both purchase money and interest thereon, covering a period of sixteen years, the rate of interest being unknown to them ; that defendants offered to pay the plaintiff association the balance due on the jnortgage, provided they were allowed a proper discount on account of the mortgage having included accumulated interest, and on account of the legal discount the defendants were entitled to ; that the true balance due on the mortgage does not exceed $2,635, and that the collection of a larger sum would be illegal and usurious. The defendants further claim in their affidavit of defense that by the terms of the mortgage they were entitled to a discount of one per cent per annum for prepayment, amounting to about $500, which the plaintiff refused .to allow.

After the plaintiff had moved the court for judgment for want of a sufficient affidavit of defense, the defendants were permitted, on September 21, 1905, to file a supplemental affidavit of defense in which they aver, inter alia, as follows: That on or about March 10, 1897, at which time Amos Steck entered into his aforesaid contract with the Industrial Savings & Loan Company, the mortgaged premises were worth somewhere between $5,000 and $6,000, and not over the sum of $6,000, as the house cost at that time about $4,000, and the value of the lots did not exceed $40.00 per foot front. And that the said purchase money of $7,500 agreed upon included interest at a rate unknown to your affiant, but not less than six per cent.”

The original affidavit of defense is entirely too vague, uncertain and indefinite to prevent judgment. It does not disclose what part of the $7,500 was the purchase price of the real estate, and what part of that sum was interest, nor what the rate of interest was, so that the court could determine whether the contract was usurious, or, if judgment was entered against defendants, it would contain any unearned interest as alleged. These facts are certainly within the knowledge of Mr. Steck, the defendant’s assignor, and the affiant does not aver Mr. Steck’s ignorance of them nor his refusal to furnish them to the defendants. In the absence of such facts, averred in the affidavit, the court cannot determine the legality of the contract, and it is not sufficient for the affiant to aver its illegality without setting out facts which warrant the conclusion. It was doubtless with the view of giving the defendants an opportunity to comply with this established rule governing affidavits of defense that the court granted leave to file a supplemental affidavit. It is almost as barren of the necessary facts as the original affidavit, and hence is entirely insufficient to justify the court in sending the case to a jury. When, however, the supplemental affidavit is examined, it clearly appears that the judgment is not tainted with usury, but is really for a less sum than if the consideration named in the agreement of the parties had been for the value of the real estate with legal interest from the date of sale. The supplemental affidavit fixes the value of the real estate at from 15,000 to $6,000. As the affidavit must be taken most strongly against the defendants who made it, we must assume that the value of the property was at least $6,000 at the time the plaintiff company sold it to Steck in March, 1897. If that sum had been named in the agreement as the consideration for the real estate sold, there would have been due the plaintiff on May 16, 1905, when this scire facias was issued on the mortgage, the debt with legal interest for more than eight years, amounting in all to at least $8,920. Reducing this sum by the amount of the installments paid by the defendants and their assignor, to wit: $2,230, there would yet remain due, when the writ issued, the sum of $6,690, which is largely in excess of what the plaintiff is now claiming on the mortgage.

Again, if we assume that the $7,500 was debt and interest, as alleged in the original affidavit of defense, there is no ground for the assumption that the sum contains usurious interest. The defendants have, as we have seen, fixed the value of the property at $6,000 when it was purchased in 1897. This leaves as interest $1,500 of the $7,500 named in the contract as the consideration for the premises. The defendants and. their assigner had had possession of the property for more than eight years when the scire facias was issued, and hence, conceding $1,500 of the sum named as the selling price to be interest, the rate was less than four per cent for the time the purchaser and his assignees held the property. This is a complete refutation of the allegation in the original affidavit of defense that the mortgage includes the selling price and sixteen years’ interest, if we assume that the selling price was the value of the property fixed by the defendant and the interest was at the legal rate of six per cent. In the absence of any positive and direct averment to the contrary in the affidavit of defense, we must assume that the selling price was the value of the property.

We thinlc that neither the original nor the supplemental affidavit of defense contains any sufficient averment of facts which show that the sum claimed by the plaintiff is tainted with usury or contains any unearned interest.

The defendant was not entitled to an allowance of one per cent per annum on the balance due at the issuing of the writ. This provision of the contract was clearly intended to be an allowance for a voluntary anticipation of any installments of the principal, and not when, as here, the balance became due and payment was enforced by reason of a default under the terms of the contract and mortgage.

But aside from the above reasons for holding that the affidavit of defense does not present any sufficient grounds why the plaintiff should not have judgment for the amount of his claim, there is another and unanswerable reason why the affidavit sets up no defense which will avail the defendant against the scire facias issued on the mortgage. The plaintiff company sold the real estate in question to Mr. Steck by a contract in writing, and Steck sold and assigned his interest in the contract to the defendants. The latter were not parties to the agreement between the plaintiff and Steck, and hence are not interested in the consideration that passed between those parties for the real estate. It is true the defendants have assumed to pay part of that consideration to the plaintiff company instead of paying it to Mr. Steck, but that does not make them parties to the original contract, nor interested in the legality of its consideration more than any other strangers. The money they agreed to pay the plaintiff is part of the consideration they agreed to pay Steck for his interest in the contract. It is not alleged, and if it were, it could' not be set up as a defense in this action, that the consideration passing from the defendants to Steck is tainted with usury, but the averment is that the consideration agreed to be paid by Steck to the plaintiff is usurious. With that, the defendants can have no concern, because if true, they are not affected by it. This is not a suit on the contract between Steck and the plaintiff company, but on the mortgage given to the plaintiff by the defendants to secure the payment of money which the defendant agreed with Steck to pay the plaintiff as part of the consideration which the defendants owed Steck. It is therefore clear that the defendants are strangers to the contract between the plaintiff company and Steck, and hence have no right to interpose as a defense in this action any usurious taint that might exist in the consideration which Steck agreed to pay the plaintiff for the land in question.

It is well settled in this state that in the absence of fraud, the defense of usury is personal to the debtor or his privies in blood or estate, and if they do not choose to make it, no other person can. “ Those who allege that usury is a fraud upon them,” says Sterrett, J., in Stayton v. Riddle, 114 Pa. 464, “ must do more than show the payment of interest in excess of the legal rate. That is a matter of which the debtor alone can complain.” In Bonnell’s Appeal, 4 Sadler’s Rep. 7, this court, speaking hy Green, J., said: “ In the present state of the law, that defense (usury) is personal, and if the debtor does not choose to make it, one who is a stranger to the contract cannot.” And it has been held by this court that where a party gives an obligation in payment of usury agreed to be paid by another, he cannot defend on the ground of usury: Gump v. Hamaker, 4 Walker, 157.

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


text:
    Walker v. Black, Appellant.

      Contract — Negligence in performance of contract — Insurance broker.

    In an action against insurance brokers to recover damages for loss occasioned" by their alleged negligence, it appeared that by some oversight either of the defendants, or of their agents, in New York, the policies contained a warranty not in accordance with the facts. When the policies were received they were not examined immediately by defendants, and in the interim a fire took place. The compames paid only half the amount of the loss. The defense was that in previous years plaintiffs’ plant had been insured under joint policies with other property of a firm closely connected with plaintiffs as to which property the warranty would have been good, and the list of policies furnished for the New York brokers did not clearly distinguish the properties on which it was now desired to have separate insurance. Secondly, defendants claimed that even if they had examined the policies and observed the error at once on receipt, it would have been unavailing as the fire occurred before the mistake could have been corrected. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued Oct. 23, 1906.
    January 7, 1907 :
    Appeal, No. 28, Oct. T., 1906, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1901, No. 799, on verdict for plaintiff in case of Walker, Stratman & Co. v. David P. Black, surviving partner of the firm of Black & Gloninger.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for the negligent performance of a contract to place fire insurance. Before Frazer, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $5,916.91. Defendant appealed.

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

      A. B. Reid, with him A. V. D. Watterson, for appellant.

      W. B. Rodgers, for appellee.
   Per Curiam,

Plaintiffs employed defendants as brokers to procure insurance upon plaintiffs’ plant. Defendants finding ft difficult to procure the amount in Pittsburg employed a firm of brokers in New York who obtained policies in foreign companies. By some oversight, either of defendants or the Ne w York agents, the policies contained a warranty not in accordance with the facts, and when called upon to pay the companies refused on this-ground. When the policies were received they were not examined immediately by defendants, and in the interim the fire took place.

The defense was that in previous years plaintiffs’ plant had been insured under joint policies with other property of a firm closely connected with plaintiffs as to which property the warranty would have been good, and the list of policies furnished for the New York brokers did not clearly distinguish the properties on which it was now desired to have separate insurance. Secondly, defendants claimed that even if they had examined the policies and observed tbe error at once on receipt, it would have been unavailing as the fire occurred before tbe mistake could have been corrected.

The issue thus raised was clearly one of fact, to wit: the negligence of defendants, and was for tbe jury.

Judgment affirmed.


text:
    Higgins, Appellant, v. Higgins.

      Partnership — Purchase of real estate by partner — Partnership accounting.

    Where a partnership is indebted to one of the partners, and the latter purchases real estate and pays for the same with money or assets withdrawn from the partnership by him on account of the firm’s indebtedness to himself, and no objection is made at the time to such withdrawal, the other partners cannot subsequently claim that the partnership had an interest in the real estate thus bought.
    Argued Oct. 23, 1906.
    Appeal, No. 47, Oct. T., 1906, by plaintiff, from decree of O. P. No. 2, Allegheny Co., April T., 1905, No. 199, dismissing bill in equity in case of Oatberine Higgins, Administratrix of tbe Estate of Michael Higgins, v. Lawrence J. Higgins, Executor of the Estate of John P. Higgins, deceased, who survived Michael Higgins, late copartners under tbe firm name of Higgins & Son, and Lawrence J. Higgins, in bis own right.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for a partnership accounting.
    Over, J., specially presiding, filed tbe following opinion:
    Tbe prayers of this bill are for an accounting between tbe estates of Michael Higgins, deceased, and John P. Higgins, deceased, of the partnership which existed between them ; that certain real estate, tbe title to ivhich was in tbe name of John P. Higgins, deceased, and is now in Lawrence Higgins, be included in tbe accounting, as partnership property, and that Lawrence tie restrained from disposing of tbe same.

      Michael Higgins and his son, John P. Higgins, carried, on the scrap iron business as equal partners in Allegheny City for some time prior to April, 1893, when they moved to and occupied premises in Pittsburg, purchased from J. P. Kohler for $8,000, the title being taken in the name of John P. Higgins. Kohler then owed the firm $5,000 which was credited on the purchase money, and the partnership- business was continued on these premises until the death of Michael Higgins, February 9, 1901. °On the 6th day of May following John P. Higgins made a settlement of the partnership business with Catherine Higgins, but the land purchased from Kohler was not included as part of the firm assets. John P. Higgins subsequently conveyed this land to Lawrence Higgins for a nominal consideration and also devised the same to him and appointed him executor, and having died on April 21,1903, the will was duly probated and letters issued to Lawrence Higgins.
    The material questions in dispute here are as to the averments in the seventh paragraph of the bill, that the purchase from Kohler was made with the firm assets for the benefit of the firm, and that John P. Higgins held the title in trust for it. The defendant denies these averments, and alleges that the first payment was made by John P. Higgins with money or assets withdrawn by him on account of the firm’s indebtedness to him. He then proceeds to state in detail the amount invested by each of the partners, the amounts drawn by each; that John P. Higgins claimed the land as his own, and that Michael Higgins never made objections thereto, nor disputed his right; that the plaintiff and his heirs had full knowledge of the facts for many years prior to Michael Higgins’ death.
    It is contended that Lawrence Higgins could not have personal knowledge of the facts alleged in the answer; that it is not responsive for this reason, and also because the facts alleged are not responsive to the averments of the bill. The affidavit to the answer is made by Lawrence Higgins, acting in his own right and as executor of John P. Higgins, and in it he avers that he has personal knowledge of all the facts set forth in said answer, and “ that all of said facts are true.” Notwithstanding these averments, however, if it appears that the facts asserted by the defendant are such that he could not have had personal knowledge of them, the answer is not responsive: Ttiegel v. American Life Insurance Company, 153 Pa. 134. Could Lawrence J. Higgins, then, not have personal knowledge of the facts alleged by him in his answer ? He was the son of one of the members of the firm and the brother of the other, and it is highly probable that he would have information from both as to the condition of their accounts and the facts as to the purchase from Kohler, and his affidavit that he had personal knowledge, seems to be sufficient to make the answer responsive if the facts alleged are : Kane v. Fire Insurance Co., 199 Pa. 198.
    In Eaton’s Appeal, 66 Pa. 483, Mr. Justice Sharswood says:
    “ .... If a plaintiff state an act, transaction or contract as the foundation of his equity, the defendant has a right to state the whole of such act, transaction or contract as in truth it was. Otherwise a plaintiff by giving only part of a contract, if the defendant must admit that part, and cannot go on to describe truly all the parts of it, the grossest injustice might be done. The defendant must answer every material allegation in the bill whether specially interrogated thereto or not, and unless he states the act or contract fully, as it truly was, how can he conscientiously swear that the facts in his answer are true? Half a fact or half a contract is not the truth. Neither is it true if in truth the terms of a contract are different.”
    Tested by this rule, we think the averments in the seventh paragraph of the answer, denying the allegations of the seventh paragraph of the bill and alleging that the first payment in the purchase of the land in dispute was made by John P. Higgins with money or assets withdrawn by him on account of the firm’s indebtedness to him, are responsive to the bill.
    The plaintiff states a transaction as the foundation of his equity, and the defendant avers that the whole of the transaction was not stated ; that whilst it was true that the firm assets were used in making the purchase, they were withdrawn by John P. Higgins on account of the indebtedness of the firm to him, and, if so, they thereby became his individual property, and, as alleged by the respondent, no part of the consideration for the purchase of the property was paid out of the assets of the firm.
    The next question'for consideration is whether the evidence in the case overcomes the answer. The only witnesses called by the plaintiff are Jacob P. Kohler and Mrs. "Weaver. The former testified that when John P. Higgins purchased the property in dispute he said, “ I want this deed made out in my name, and I don’t want you to say anything about it.” The latter, who is the niece of Mrs. Higgins, testified in regard to the property that “ John and his 'father always spoke it that they bought it together in partnership.” She also testified in regard to the deed that she heard John say to his father, “ Father, I will make that all right. I did not do it to rob the girls or you, but I don’t want Jim or Tom to get anything, because they are of.no account,” and that the father said “ John, you make that right, or I will put you in the penitentiary.” She does not fix the time that this conversation occurred accurately, but it seems to have been in 1897, four years prior to the death of Michael Higgins.
    John P. Higgins may have requested Kohler not to say anything about the deed being made to him, to conceal the fact from the other members of the family, or from his father as well as them. If the latter were his purpose, and the conversation between him and his father related by Mrs. Weaver indicates it was, the inference is that his father did not know at the time of the purchase that John had withdrawn any of the assets of the firm on account of its indebtedness to him. But as he lived four years after he had obtained knowledge that the title was in John’s name, as shown by Mrs. Weaver’s testimony, without requiring John to make title to the firm, the presumption is that he was satisfied that his son should retain the land, and this circumstance corroborates the answer, as does also the fact that though the administratrix of Michael Higgins, and his next of kin, who are all sui juris, must have known that the title to the property was in John P. Higgins’ name, and that the firm had used it in conducting its business, yet, in 1901, she, acting under advice of her counsel, settled the partnership affairs with John P. Higgins, without any assertion on her or their part that the land was part of the firm’s assets, and they receipted in full for their distributive shares in their father’s estate. Our conclusion, therefore, is that the evidence does not overcome the answer.
    There is room for serious doubts as to whether the cohclusions reached in this case are correct, but the plaintiff’s case must be clear to entitle her to relief, and if injustice be done it is due to the laches of Michael Higgins and his next of kin.
    ¡FINDINGS OK KACT.
    1. For several years prior to February 9, 1901, the said Michael Higgins, and his son, the said John P. Higgins, were associated as copartners under the firm name of Higgins & Son, in the business of dealers in metal and scrap iron, in the cities of Allegheny and Pittsburg in said county, under a parol agreement whereby each of said copartners was to have an equal interest in the said business and to share equally in the losses and profits thereof.
    2. Said copartnership continued from its inception until February 9, 1901, when it was dissolved by the death of said Michael Higgins, which occurred upon said last mentioned date.
    3. That John P. Higgins, about April 3, 1893, purchased from Jacob P. Kohler the land mentioned in paragraph seventh of the plaintiff’s bill, taking the title in his own name.
    4. That Kohler was then indebted to the firm of Higgins & Son in the sum of $5,000, and John P. Higgins paid $5,000 of the purchase money for said laud by canceling Kohler’s indebtedness to the firm and by assuming the payment of a mortgage on the land for $3,000, which he paid after the death of Michael Higgins, and that said $5,000 was withdrawn from the firm’s assets by John P. Higgins on account of the firm’s indebtedness to him.
    5. That an inventory and appraisement of all the assets of Higgins & Son was made on February 23, 1901, and a full settlement of the partnership affairs was made between John P. Higgins, surviving partner, and Catherine Higgins, administratrix of Michael Higgins, deceased, and she received for the interest of the decedent therein, $8,614.74. That she then knew the title to the land described in the seventh paragraph of the bill was in John P. Higgins, and that the firm had used it in conducting its business, but no assertion ivas then made that it was partnership assets, and it was not included in said settlement.
    6. That John P. Higgins was the active partner of the firm, and no regular books of account were kept.

      January J, 190J:
    CONCLUSION'S OF LAW.
    The answer, wherein it denies that any part of the consideration paid for the real estate in dispute was paid out of the assets of the firm, and avers that the first payment was made by John P. Higgins with money or assets withdrawn by him on account of the firm’s indebtedness to him, is responsive to the bill, and is not overcome by the evidence. The withdrawal by John P. Higgins of firm assets on account of the firm’s indebtedness to him made them his individual property, and although the assets so'withdrawn were applied by him to the purchase of the land in dispute, yet, as they belonged to him, no part of the purchase money was paid by the firm, and it had no interest in the purchase. The bill must therefore be dismissed. Let a decree be drawn accordingly.

      Error assigned was decree dismissing the bill.

      A. B. Reid, with him H. E. McGrady and A. V. D. Waiterson, for appellant.

      Thomas Herriott, with him John L. Ralph and O. P. Robertson, for appellee.
   Per Curiam,

Decree affirmed on the findings of fact, conclusions of law and opinion of the court below.


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

      Constitutional law — Treaties— Construction of treaties.

    When rights conferred by a treaty are of such a nature as to be enforced in a court of justice, the court resorts to the treaty for the rule of decision as it would to a legislative enactment.
    In construing a treaty the general rule obtains that the court is to be guided by the intention of the parties, and if the words clearly express the meaning and intention, no other means of interpretation can be employed. •
    The provision in the treaty between the United States and the Kingdom of Italy which stipulates that the citizens of Italy in the states and territories of the United States shall enjoy, in the protection and security of their persons and property, the same rights which the citizens of the United States enjoy, applies only to such citizens of Italy, who either with respect to their persons or property, are within the jurisdiction of the United States.

      Negligence — Death—Act of April 26, 1855, P. L. 309 — Nonresident aliens — Treaty between the United States and Italy — Constitutional law— Nonsuit.

    A nonresident alien, who is citizen of the Kingdom of Italy, has no standing under the treaty between the United States and Italy to maintain an action under the Pennsylvania act of April 26, 1855, for the recovery of damages for injuries to another causing death. .
    Argued Oct. 23, 1906.
    Appeal, No. 48, Oct. T., 1906, by plaintiff, from order of O. P. No. 3, Allegheny Go., Aug. T., 1904, No. 418, refusing to take off nonsuit in case of Maria Guiseppa Raffaelo Maiorano v. Baltimore & Ohio Railroad Co.
    Before Mitchell, O. J., Pell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before McOlung, J.
    Prom the record it appeared that plaintiff’s husband was killed on the railroad of the defendant on December 23, 1903, near Conn ells ville, in the state of Pennsylvania. The plaintiff alleged in her statement that she was a resident of the Kingdom of Italy, and a subject of the King of Italy. The court followed the case of Deni v. Pennsylvania Railroad Co., 181 Pa. 525, and entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      G. C. Bradshaw, with him Frank Thompson and W. H. S. Thompson, for appellant.
    The action in this case is not founded on any attempt to dispute, nor ask the court to overrule the case of Deni v. Pennsylvania Railroad Company, 181 Pa. 525. It is founded on an entirely different matter and raises an entirely different question.
    Still it is well to say, that in England, the latest decisions are to the effect that Lord Campbell’s act was intended for the benefit of foreigners, and the ruling of the court of King’s Benchlin Ike case of Davidson v. Hill, L. R. 1901, K. B., vol. 2, page 606, has been to the effect that the earlier English decisions were wrong.
    The following cases in the United States show that the weight of authority has been that the earlier English and Pennsylvania decisions should be overruled. Cleveland, etc., Ry. Co. v. Osgood, 73 N. E. Repr. 285 ; Mulhall v. Fallon, 176 Mass. 266 (57 N. E. Repr. 386); Tanas v. Municipal Gas Co., 88 App. Div. 251 (84 N. Y. Supp. 1053); Romano v. Capital City Brick, etc., Co., 125 Iowa, 591 (101 N. W. Repr. 437); Kellyville Coal Co. v. Petraytis, 195 Ill. 215 (63 N. E. Repr. 94); Yetaloro v. Perkins, 101 Fed. Repr. 393; Augusta Ry. Co. v. Glover, 92 Ga. 132 (18 S. E. Repr. 406).
    Treaties are supreme law of the land : Hauenstein v. Lynham, 100 U. S. 483; Ware v. Hylton, 3 U. S. 199; Baker v. Portland, 2 Fed. Cases, 777; Doehrel v. Hillmer, 102 Iowa, 169-(71 N. W. Repr. 204).
    The treaty has been construed by two of the courts of the United States and has been held in both instances to grant to Italians equal rights with Americans to bring an action for death: New Orleans v. Abbagnato, 23 U. S. App. 533; Naylor v. P., C., C. & St. Louis R. R. Co., 26 Ohio Cir. Ct. 277.

      John S. Wendt, with him Johns McCleave, for appellee.
    It is settled in Pennsylvania that a nonresident alien widow, resident in the kingdom of Italy, has no standing to maintain an action against a resident of Pennsylvania, to recover damages for the death of her husband: Deni v. Penna. R. R. Co., 181 Pa. 525.
    The exemption acts in favor of widows and children and laborers are uniformly held to be grounded in public policy, looking to the protection of families in Pennsylvania and to prevent them from becoming charges on the public: Sweeny v. Hunter, 145 Pa. 363; Strain’s Estate, 32 Pitts. Leg. Jour. 369; Troxell’s Estate, 13 Montg. Co. 68; O’Neill’s Estate, 1 Pa. Dist. Rep. 392; Brannigan v. Union Gold Mining Co., 93 Fed. Repr. 164.
    General statutory language providing indemnity to the next of kin of a person negligently killed, does not apply in favor of nonresident aliens: McMillan v. Lumber Co., 60 L. R. A. 589; Dennick v. R, R. Co., 103 U. S. 11.

      January 7, 1907:
    "Where the federal courts apply state statutes allowing suits to recover damages for death, the limitations and conditions annexed to the right of recovery by the state statute govern: The Harrisburg, 119 U. S. 199 (7 Sup. Ct. Repr. 140); The Edith, 94 U. S. 518; The A. W. Thompson, 39 Fed. Repr. 115 ; Green v. Neal, 31 U. S. 291; State Bank v. Knoop, 57 U. S. 369 ; Rowan v. Runnels, 46 U. S. 134; Rundle v. Delaware, etc., Canal Co., 55 U. S. 80; Bolles v. Brimfield, 120 U. S. 759 (7 Sup. Ct. Repr. 736); Gormley v. Clark, 134 U. S. 338 (10 Sup. Ct. Repr. 554); Bucher v. Railroad Co., 125 U. S. 555 (8 Sup. Ct. Repr. 974).
    The provisions of the treaty between the United States and Italy do not secure to the plaintiff the same right to recover damages for the death of her husband as though she was a resident of Pennsylvania, or even of the United States. The plaintiff never was a resident of the United States, and, at the time of her husband’s death, was a resident in Italy and subject of the King of Italy. An examination of the articles of the treaty, invoked by the plaintiff, shows that its provisions, fairly construed, do not confer upon a widow residing in Italy the same right of action, growing out of the negligent killing of her husband, as if she were a resident of or domiciled in the state of Pennsylvania or the United States: The Neck, 138 Fed. Repr. 144; Slaughter House Cases, 83 U. S. 36; Frederickson v. State of Louisiana, 64 U. S. 445.
   Opinion by

Mr. Justice Stewart,

A single fact not appearing, and of course not considered, in the case of Deni v. Penna. R. R. Co., 181 Pa. 525, is relied upon to distinguish this case from that, and exempt it from the operation of the rule there declared. That case expressly decides that a nonresident alien has no standing to maintain an action under the Act of April 26, 1855, P. L. 309, for the recovery of damages for injury to another causing death. There, as here, the party claiming the right of action was a nonresident alien, the citizenship in both cases being in the kingdom of Italy. The fact not disclosed in that case and appearing in this is, the existence of a treaty between the United States and the kingdom of Italy, whereby certain reciprocal rights in the citizens of the several countries are agreed upon and establisted. Article III of this treaty provides as follows : “ The citizens of each of the high contracting parties shall receive in the states and territories of the other the most constant protection, and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives on their submitting to the conditions imposed upon the natives.” It is unnecessary for present purposes to recite other parts of the treaty, since whatever appears elsewhere upon this particular question is mere matter of detail or amplification. If the plaintiff has the right here contended for. it must be derived from the article above recited.

By express constitutional provision a treaty entered into between the United States and any foreign power is supreme hrw. The constitution further declares with respect to it, “ The judges in every state shall be bound thereby, anything in the constitution of any state to the contrary nothwithstanding.” When by such treaty rights are conferred of a nature to be enforced in a court of justice, the court resorts to the treaty for the rule of decision as it would to a legislative enactment: Head Money Oases, 112 U. S. 580. It is frequently necessary in cases of this kind for courts, to- ascertain by construction the meaning intended to be conveyed by the terms used, and the application of the stipulations of the treaty to particular cases: U. S. v. Rauscher, 119 U. S. 407; Scharpf v. Schmidt, 172 Ill. 255. In construing a treaty the general rule obtains that the court is to be guided by the intention of the parties, and if the words clearly express the meaning and intention no other means of interpretation can be employed : Ware v. Hylton, 3 U. S. 199.

These principles are to be observed in determining the question before us — does the stipulation on the part of the United States, that the citizens of Italy in our states and territories shall enjoy, in the protection and security of their persons and property, the same rights which our own citizens enjoy, confer upon the plaintiff the right to recover in an action, at law under the provisions of the statute of April 26, 1855, for the death of her husband ? While the treaty stipulates for reciprocal rights, we may for convenience here consider it as a covenant engagement by the United States alone. The rights granted have regard solely to the protection and security of persons and property, and are such as our own citizens enjoy in connection therewith. These rights are ordinarily incident to but do not constitute citizenship. While the treaty by its terms includes the entire citizenship of Italy, it is obvious that its provisions can avail those only who, either with respect to their persons or property, are within the jurisdiction of the United States. With respect to the particular rights conferred, the treaty places those citizens of Italy who bring their persons or property within the covenant relation, upon an exact equality with our own citizens for the time being. Upon withdrawal of persons or property from the jurisdiction of the United States the rights cease, for in that case they have nothing to operate upon. The plaintiff is a resident of Italy, and, so far as appears, has never been within the limits of the United States, nor has she at any time had property subject to its laws. • Her husband, for whose death she claims to recover, was not a citizen of the United States, but had brought himself into the covenant relation with the United States by coming here. While here he met his death in a collision on the defendant’s railroad. There can be no question as to the extent of his rights. Had he survived the accident, he could have maintained an action against the railroad company for the recovery of compensatory damages. His subsequent death would not have abated the action; it would have survived to his personal representatives to the use of the beneficiaries indicated in the act. The foundation for such action would be the injury and loss the party himself had suffered, and the action would be in his own right. This is the full measure of the right which under similar circumstances would belong to one of our own citizens. At common law the death of a human being could not be complained of as an injury in a civil court, and, therefore, could not be made the ground of an action for damages. While the statute allows such action at the suit of husband, widow, children or parents, the action is not for the enforcement of any right which was in the party killed, but for a wholly distinct cause not affecting in any way the estate or rights of such party ; it is exclusively for such damages as the parties plaintiff in the action have sustained by reason of the death. As was said in Penna. R. R. Co. v. Zebe, 33 Pa. 318, this latter is a new and independent right given by positive law — not cast upon the parties to whom the statute gives it by survivorship as for injury done the decedent, but is for the wrong done to them, as individuals. The measure of damages allowed in such cases is but another expression of the same truth; the damages are limited to the pecuniary value of the life lost to those who sue, indicating clearly that the right to sue is not as though it came by succession as the right to recover what belonged to the party killed, but an independent cause of action for damages sustained by those who are allowed to bring the action.

What we have said sufficiently indicates the difference between the rights of the plaintiff and those of her husband, and the ground upon which the distinction is based. The injury for which plaintiff sues is her own peculiar injury resulting from the death of her husband, a-nd not for injuries he received. A statute right is given our citizens in such case, but plaintiff, as we have seen, with respect to any such claim is not within any treaty privileges, but is simply an alien. This being the case the doctrine of Deni v. Penna. R. R. Co., 181 Pa. 525, applies, and it results that the nonsuit was properly ordered.

The judgment is affirmed.


author: Me. Justice Brown,

text:
    Canon, Appellant, v. Sharon & Wheatland Street Railway Company.

      Malicious prosecution — Liability of corporation for act of superintendent.

    A corporation cannot be held liable in an action for malicious prosecution instituted by its superintendent for the sole purpose of vindicating the law through the punishment of an alleged offender, unless express precedent authority of the agent, or subsequent ratification and adoption of his act by the corporation, is shown.
    Argued Oct. 23, 1906.
    Appeal, No. 96, Oct. T., 1906, by plaintiff, from order of C. P. Mercer Co., Oct. T., 1903, No. 2, refusing to take off nonsuit in case of R. A. Canon v. The Sharon & Wheatland Street Railway Company.
    January 7, 1907 :
    Before Mitchell, C. J., Fell, Brown, Mesteezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for malicious prosecution. Before Millee, P. J.
    From'the record it appeared that the plaintiff was employed as a conductor by the defendant company, and that on September 16,1902, an information was made against him by Godfrey Morgan, general superintendent of the railway company, charging him with embezzlement and larceny of the defendant company’s money. At a subsequent trial plaintiff was acquitted.
    The court entered a nonsuit, saying: There being no evidence in this case defining the duties of Mr. Morgan, who was the superintendent or general superintendent of this railway company, the defendant, and there being no evidence that the making of the information against Mr. Canon was within the scope of any authority conferred upon him by the defendant company; and there further being no evidence that the defendant company had any knowledge of this suit, of the prosecution against Mr. Canon, at the time it was commenced or after it was commenced, and while being prosecuted, the motion for a compulsory nonsuit on the part of the defendant is granted with leave to plaintiff to move to take the same off within four days.
    The court subsequently refused to take off nonsuit.
    . Error assigned was the order of the court refusing to take off nonsuit.

      J. G. White, with him J. A. McLaughry, for appellant.

      S. H. Miller, with him Norris, Jackson & Rose,

    for appellee, cited: Markley v. Snow, 207 Pa. 447; Carter v. Howe Machine Co., 51 Md. 290.
   Opinion by

Me. Justice Brown,

The prosecution of the appellant for alleged embezzlement was instituted by Godfrey Morgan, the superintendent of the Sharon and Wheatland Street Railway Company. He was acquitted and brought this action against the company for malicious prosecution. Its responsibility for the prosecution depended upon the authority of Morgan, as its superintendent, to institute the, same as its act. Under his general powers as superintendent there was no implied authority to commit the company to the prosecution. It was for an offense alleged to have been already committed. For the protection of the property of the company that might have been in danger he might have had implied authority to invoke criminal process for the prosecution of the offender; but in seeking to hold this appellee for the alleged wrongful and malicious act of its superintendent, or agent, in instituting a criminal prosecution, not for the recovery or protection of any of its property, but for the sole purpose of vindicating the law through the punishment of an alleged offender, either express precedent authority of the agent or subsequent ratification and adoption of his act by the corporation must be shown. In the recent case of Markley v. Snow, 207 Pa. 447, this is fully discussed and the authorities cited in support of the rule announced. Among other well-considered cases in which this rule is recognized, is Carter v. Howe Machine Co., 51 Md. 290, where it is said: “ It is quite clear, that in a case like the present, where the corporation is sought to be held liable for the wrongful and malicious act of its agent or servant in putting the criminal law in operation against a party upon a charge of having fraudulently embezzled the money and goods of the company, in order to sustain the right to recover, it should be made to appear that the agent was expressly authorized to act as he did by the corporation. The doing of such an act could not, in the nature of things, be in the exercise of the ordinary duties of the agent or servant entrusted with the custody of the company’s money or goods; and before the corporation can be made liable for such an act, it must be shown either that there was express precedent authority for doing the act, or that the act has been ratified and adopted by the corporation.”

There was no evidence as to the scope of the authority of the appellee’s superintendent. It was not within his implied power to prosecute the appellant in the name' of his company. There was no evidence that it had an}’- knowledge of the prosecution, either at the time it was brought or afterwards. There was, it is true, an offer to prove that it had ratified the prosecution by paying the attorneys retained by Morgan. On objection this offer was disallowed, but its disallowance is not assigned as error. The question before us is whether, on the evidence submitted by the appellant, any express authority was shown in tbe superintendent to bring the prosecution, or any ratification of it afterwards by the company. No such authority or ratification can be found, and the judgment of nonsuit could not have been withheld.

Judgment affirmed.