text:
    Lilley, Appellant, v. Pittsburg, Virginia & Charleston Railway Company.

      Railroads — Right of way — Agreement with landowner — Contract—Severable contract.

    Where an agreement between a railroad company and a landowner contains a grant of a right of way “for and in consideration of the benefits and advantages” from the construction of a railroad through the land, and also contains a release of damages, provided that the railroad company should pay a certain sum in money, make cattle guards, and give five wagon roads over its tracks, the contract is severable, and the rights to the wagon roads arc private rights of way owned by the owner, and may be condemned by the railroad company under the Act of March 17, 1869, P. L. 12, in widening its roadway.
    The right of a railroad company to make the necessary improvements contemplated by the Act of March 17, 1869, P. L. 12, was intended in large measure to be exercised for the public good, and it will not be presumed in the absence of clear words that the company intended to barter away that right, and thus disable itself wholly or in part to perform those public functions it had undertaken.
    Argued Oct. 20, 1905.
    Appeal, No. 44, Oct. T., 1905, by plaintiff, from decree of C. P. Washington Co., No. 1437, in Equity, dismissing bill in equity in case of Thomas 'Lilley v. The Pittsburg, Virginia & Charleston Railway Company.
    Before Mitchell, C. J.; Fell, Brown, Mestrezat, Potter,, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    McIlvaine, P. J., filed the following findings of fact and conclusions of law : ■
    FACTS FOUND.
    1. Thomas Lilley, the plaintiff, is the owner of a tract of land in East Pike Run township, in this county, containing 232 acres more or less, over which the Pittsburg, Virginia and Charleston Railway Company, the defendant, in the year 1876 (or near that time) constructed its railroad and has ever since operated the same. The ground occupied by the defendant company as a right of way for the track of its road in 1876 over this farm — for a valuable consideration — was “ granted, bargained, sold and conveyed ” to it by the father of the plaintiff who then owned the farm, and the plaintiff took title to the farm subject to the defendant company’s easement thus conveyed to it. The defendant’s way, as described in said conveyance, was sixty feet “ in width at grade and such additional width as may be required and necessary in the construction of said road at cuttings and embankments to make sixty feet wide at grade and extending in length as far as the said road may pass over ” said farm. In the writing dated April 12, 1876, in which this^ grant is made, the then owner of the farm also released any claim for damages in these words: “ and I hereby for myself, my heirs and assigns release the said Pitts-burg, Virginia and Charleston Railway Company from any and all damages resulting'to me by the location and construction of said railway through my said land provided said railway company pay me before they enter on said land the further sum of $260 (that is in addition to the sum paid for the grant of the right way) and make cattle guards at each end of my line where it is now enclosed and do not damage my springs and give' me at least five wagon roads under their track or at grade through my farm and remove any buildings at their own expense.”
    2. There is no complaint in plaintiff’s bill that the money consideration of the grant to the railway company of the right of way in question, or for the release of damages have not been fully paid, nor is there any claim that the cattle guards were not built nor that any springs have been injured nor that “ the five wagon roads under their track or at grade ” were not given.
    The defendant company in the year 1890 and now again in the year 1904, seeks to condemn more land on each side of the sixty feet right of way; and in the petition for approval of the bond tendered in the year 1904, and now on file to No. 156, August Term, 1904, on the law side of this court and pending for approval it avers that it seeks also to condemn four of these wagon roads and the right to change the other; the language is as follows: “ also all the right, title and interest of said Thomas Lilley in four of the grade crossings as claimed by said Thomas Lilley under the release of Thomas Lilley dated April 12, 1876, which calls for five crossings. For the fifth crossing called for by said release the company are to construct an underground or overhead crossing whichever may be more suitable for a crossing at the point chosen by Mr. Lilley.”
    The land sought to be condemned in 1890, and to secure the damages for the condemnation thereof for which a bond was then filed to No. 216, February Term, 1890, is on and adjoins the east side of the right of way granted in 1876, and contains in all about eleven and one-half acres. This land has not all yet been actually used by the railroad company and a view to assess damages has not been held. The land sought to be condemned in 1904, and to secure the damages caused thereby for which the bond was filed for approval to No. 156, August Term, 1904, is almost entirely on and adjoins the west side of the right of way granted in 1876, and contains about six and one-half acres.
    4. The directors of the defendant company have by proper resolution appropriated these additional strips of land on the east and west side of their old right of way because they believed the land was necessary for the present and future needs of the company and they intend eventually to cover it all with additional tracks and sidings as a place for the storing and distribution, of empty and loaded freight cars and no more land has been taken than the civil engineer of the company believes is necessary.
    5. The plaintiff denies the right of the defendant company to condemn and appropriate the road crossings provided for in contract of April 12, 1876.
    CONCLUSIONS OF LAW.
    1. That the plaintiff is not entitled to equitable relief and the restraining orders prayed for should be refused and plaintiff’s bill dismissed.
    2. That the petition and bond filed to No. 156, August Term, 1904, is not an attempt to rescind any part of the agreement of April 12, 1876, executed by it and Thomas Lilley, deceased.

      Error assigned was decree dismissing the bill.

      W. B. Rodgers, with him >T. W. Kraus, W. S. Pmker, Win-field Mcllvaine and Norman E. Clark, for appellant.
    The crossings were not a reservation out of the grant but are in appellant under grant from the railway company.
    The crossings were vested in appellant as a part of the consideration for the grant and a release of damages arising out of. the location and construction of the railroad thereon and cannot be condemned while the railway company retains the fruits of its contract: Mt. Pleasant Coal Co. v. R. R. Co., 200 Pa. 434; Pittsburg, etc., Ry. Co. v. McCloskey, 110 Pa. 436; Semple v. R. R. Co., 172 Pa. 369.

      A. M. Todd, with him J. A. Wiley, for appellee,
    cited: Semple v. R. R. Co., 172 Pa. 369; Kenny v. Ry. Co., 208 Pa. 30.
    January 2, 1906 :
   Opinion by.

Mr. Justice Mestrezat,

The learned trial judge has found and clearly stated all the material facts of the case and in his opinion has fully vindicated the decree which he directed to be entered.

The only question in this case is the right of the defendant company to condemn the four grade crossings which the plaintiff claims he is entitled to under the contract of April 12,1876. It is clear, we think, that this is a severable and not an entire contract. The clause relating to the damages and the wagon roads across the tracks to be given Mr. Lilley maybe omitted from the contract and still the grant of the right of way will have a valuable consideration to support it and be enforceable against the grantor. The conveyance is complete without this clause, and vests in the railroad company the easement through the farm of Mr. Lilley. The only plausible theory, and the correct interpretation of the contract, therefore, is that suggested by the trial judge that the release of damages was intended to release the railway company from any damages which, by the construction of the railroad, might result to that part of the farm outside the right of way. These damages may have been released by the grant of the easement, as has been held in some jurisdictions, but the parties thought the release necessary to relieve the company from damages and for that reason it was inserted in the conveyance. Following the release is the proviso, the several matters in which clearly constitute the consideration for the execution of the release and not, as claimed by the plaintiff, for the grant of the right of way. The contract did not provide that the $250.00 should be paid, the cattle guards should bo constructed, and the company should give Mr. Lilley the wagon roads over its tracks as a consideration for the conveyance of the right of way, but, on the contrary, it expressly sets forth that the grant of the right of way was made “for and in consideration of the benefits and advantages to me from the construction of its railway through my land.” The money to be paid and the acts to be done, as required in the proviso, must, therefore, bo regarded as the consideration for the release of damages for injuries done the plaintiff’s farm outside the appropriation for the right of way for the construction of the defendant’s road.

The right to the wagon roads over the defendant’s tracks, acquired as the consideration for the release of damages, was the property of Mr. Lilley, and could be appropriated by the defendant company under the Act of March 17, 1869, P. L. 12 : 2 Purd. 1798. The crossings were easements or private rights of way and as such may be taken by the company under the statute. In doing so the defendant is not repudiating or rescinding the contract of April 12, 1876, as contended by tbe learned counsel for the plaintiff, but simply appropriating for its legitimate use the property of the plaintiff in accordance with the laws of the state.

Ia Jones v. Pittsburg, etc., Railroad Company, 11 Pa. Superior Ct. 202, it was held that a railway company could, under • the act of 1869, appropriate a part of a private right of way, which the company had agreed not to interfere with in the contract made with the owner of the land by virtue of which it had acquired its right of- way. In that case it is said by Rice, P. J., delivering the opinion: “ The right of a railroad company to make the necessary improvements contemplated by the act of 1869 was intended in large measure to be exercised for the public good and it will not be presumed in the absence of clear words that the company intended to barter away that right and thus disable itself wholly or in part to perform those public functions it has undertaken.”

We see no error in the record, and, therefore, the decree of the court below is affirmed.


source: Caselaw Access Project

author: Me. Justice Pottee,

license: Public Domain

text:
    Rabe v. Shoenberger Coal Company, Appellant.

      Mines and mining — Surface support — Injuries to surface — Damages for permanent injuries.

    Where there is a permanent injury to real estate the extent of the damage caused thereby is to be measured by the resulting depreciation in the value of the property; and this rule applies not only where the injury to property is for public use, but also where the issue is between private persons.
    In an action of trespass by the owner of the surface of land against a mining company, which in mining the coal has failed to leave sufficient support for the surface, and has destroyed five springs, the measure of damages is the permanent depreciation of the value of the farm caused by the destruction of the springs. The springs cannot be valued as independent pieces of property, but as elements going to make the value of the farm as a whole.
    If, in such a case, it appears that the loss of one spring was supplied by piping water from another, the damage in so far as that particular one is concerned is the cost of piping.

      Argued Oet. 20, 1905.
    Appeal, No. 58, Oct. T., 1905, by defendant, from judgment of C. P. Washington Co., May T., 1903, No. 54, on verdict for plaintiff in ease of William T. Rabe v. Shoenberger Coal Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages ror injuries to land by alleged negligent mining operations. Before Taylor, J.
    The facts are stated in the opinion of the Supreme Court.
    On measure of damages the court charged as follows:
    [The measure of damage, gentlemen of the jury, in a case of this kind, as laid down by the Supreme Court and the one which you are to follow, is: “ For the measure of damages for failure to furnish surface support is the actual loss the owners of the surface have sustained to their land ” — the surface in this case including the building thereon, — ■“ by reason of the cave in.” The actual loss would mean the real loss, if any, that was sustained by the plaintiff by reason of any springs that he may have lost on this portion of the farm, because the farm as yet is not affected as a whole, but the loss here is confined to some forty or sixty acres, or thereabouts, although I believe the defendant’s engineer claimed, — the principal engineer in charge of that mine, — that the coal was only mined out from twenty or twenty-one acres of this plaintiff’s farm.] [4]
    [When you come to the question of loss here, and damage, because it is not denied that there is some for which the defendant is liable, and they have told you what that was, you take the elements of actual loss, the actual loss to the plaintiff here, and the cost that it would be to him to restore his buildings or his farm, if possible, to make him as good as he was before, is the measure of damages you will apply in this case. When you come to consider the loss of the spring — you are not bound by any arbitrary estimate that a witness on the one side or the other may place on a spring or the buildings that may be gone or damaged. You take this farm — this portion of the farm that is in controversy here, and if it would appear to you that there were other springs on this farm that supplied a flow of water that was sufficient to keep úp the supply necessary to carry on the farming, when one of these springs disappeared, it would be for you to say whether the plaintiff would be as much damaged if there was no other water on his place that he could get. And if the spring at the house could be supplied from another spring without diminishing appreciably the supply that was necessary for another part of the farm, the flow through that, would not the actual loss be what it would cost to pipe the water to the house, etc. ? That is what I mean when I say you are not bound by the arbitrary estimate of loss that the defendant puts on this plaintiff’s spring or springs, or that the plaintiff and his witness themselves may put upon them, — but you are to use' your own good judgment, considering all the facts and circumstances in the case, taking that part of the land that is affected by the loss of the springs here for all of the purposes for which it could be used in the shape it was made, for farming purposes and for the laying out of lots. You are to use your own good judgment, gentlemen of the jury, guarded within the lines at least of what the witnesses say on both sides here as to how many cracks there were and how they interfere with the cultivation of the surface, or whether they are of such a nature as would be dangerous for stock running in the field, whether they could be filled up and made as safe as they were before any cracks appeared. What is the extent of damages, by way of actual loss to the surface, if you find his farm left in that condition.] [5]
    Verdict and judgment for plaintiff for $6,500. Defendant appealed.

      Errors assigned among others were (4, 5) above instructions, quoting them.

      W. H. S. Thomson and James I. Brownson, with them J. W. and Alvin Bonnan and B. W. Kuhn, for appellant.
    For an injury to real estate, the effect of which is permanent, the measure of damages is to be one of two things, viz: (a) The cost of remedying it (if remediable) is the measure of damages, provided such cost does not exceed the depreciation in the market value of the property caused by it; but (5) if the injury cannot be remedied without expending a sum in excess of the depreciation in the market value caused by the (unremedied) injury, then such depreciation in value is to be adopted as the measure of damages: Seely v. Alden, 61 Pa. 302; Duffieldv. Rosenzweig, 144 Pa. 620 ; Hoffman v. Coal Co., 16 Pa. Superior Ct. 631; Lentz v. Carnegie, 145 Pa. 612; McClay v. Western Penna. Gas Co., 201 Pa. 197.
    The duty of the court, in charging the jury, to hold them down to the legal standard for measuring the damages, whenever there is one, and not to leave them free to proceed according to their own private ideas upon the subject, has frequently been spoken of by this court: Penna. R. R. Co. v. Kelly, 31 Pa. 372; Phila., etc., R. R. Co. v. Adams, 89 Pa. 81; Penna. R. R. Co. v. Books, 57 Pa. 339 ; B. & O. Employees’ Relief Assn. v. Post, 122 Pa. 579.

      T. F. Birch, with him Mcllvain, Vance Gibson, for appellee.
    If appellant desired to have these damages measured by the rule of difference in market value and thus ignore the ruling of this court in the recent case of Noonan v. Pardee, 200 Pa. 474, it should have said so at the trial of the case in the court below, and the plaintiff would have been willing to have met it on that rule.
    January 2, 1906:
   Opinion by

Me. Justice Pottee,

This was an action of trespass, brought to recover damages for injuries alleged to have been caused to plaintiff’s property, by the defendant company. The plaintiff was the owner of a farm in Washington county, near the town of Donora, and the defendant company owned the underlying coal. During the process of mining, and by reason of its failure to leave proper support for the surface, the defendant company injured a portion of the surface for building purposes, interfered with the use of a private road, damaged the dwelling house, and destroyed certain springs of water.

The assignments of error relate solely to the measure of damages. The principal injury of which complaint was made, was the destruction of five springs of water. This injury was permanent and irremediable, as was also any damage to the surface which might render it less available for building purposes. Other injuries, such as the sinking of the dwelling house and the opening of cracks across the private right of way, were remediable. For the latter, the cost of repair or restoration is obviously the measure of the damage.

The first assignment of error complains of the admission of testimony as to the value of the springs -in themselves. This specification is sustained. The value of the springs was only an element in estimating the value of the realty. If the trespass resulted in permanent injury to the realty, the measure of damages is the diminution in the market value of the land. This principle is laid down in Schuylkill Nav. Co. v. Farr, 4 W. & S. 362, where it was held that the measure of damages is (p. 375), “the difference between what the property would have sold for as affected by the injury, and what it would have brought unaffected by such injury.” And in McKnight v. Ratcliff, 44 Pa. 156, an action for flooding the shaft of a coal mine, the measure of damages was held to be the actual injury sustained in delay, loss of time, damage to machinery, etc., and if the mine was irreclaimable, then the value of the estate and property.

In Hanover Water Co. v. Iron Co., 84 Pa. 279, it was held that the measure of damages for the diversion of a stream whereby a farm with an ore-bank thereon is injured, was the difference in the market value of the property as a farm and ore-bank, immediately before the diversion of the stream and immediately afterwards as affected thereby.

In Vanderslice v. Phila., 103 Pa. 102, an action for injuries through the bursting of a negligently constructed' sewer, Mr. Justice Teunkby said (p. 109) : “ Compensation for the loss is the measure of damages. Permanent injury done to the buildings, cost of repairs and the loss of rent for the time necessary to make the repairs, are elements affecting the market value, and the difference between that value in their injured condition and such value if uninjured, is compensation.”

The sound clear rule is stated in Seely v. Alden, 61 Pa. 302 ; Fulmer v. Williams, 122 Pa. 191; Williams v. Fulmer, 151 Pa. 405, and Thompson v. Traction Co., 181 Pa. 131, and is in substance that when the injury is permanent, the measure of damages is the difference in market value, before and after the injury, or the cost of removing the obstruction, whichever is the lower amount.

In the present case the plaintiff had a dairy farm which was unusually well supplied with water.. It had no less than twelve springs on it with water in every field. Plaintiff claimed that five of the springs were destroyed by the cracks in the land. The question was how much was the farm depreciated in value by the loss of the springs ? Yet the plaintiff was allowed to estimate the value of the springs as such, and placed one of them at a valuation of $10,000, and the aggregate loss of the springs at $20,000. There was evidence showing that the loss of one spring was supplied by piping water from another. If so, then the damage in so far as that one was concerned was the cost of piping. But in so far as the taking of the springs could not be remedied or made good, the springs should have been valued, not as independent pieces of property but as elements going to make up the value of the farm as a whole. The farm was not wholly deprived of water, the number of springs had only been lessened. In just so far as any of them were destroyed, their value would be one of the elements of depreciation to be considered in ascertaining the loss in the selling value of the whole property, caused by the injury inflicted by the defendant company: Kossler v. Pittsburg, etc., Railway Co., 208 Pa. 50. Counsel for appellant admits that the portion of the charge dealing with the measure of damages for the temporary or remediable injuries, was substantially correct. But it is contended that no adequate rule was given to the jury by which they were to arrive at the damages for permanent injury, and that they were merely told to allow the actual loss. Counsel would have been in better position to complain if specific requests for instructions upon the measure of damages had been presented to the court below, at the trial. We feel, however, that the charge was not sufficiently specific upon this point. The jury were told that the plaintiff had the right to recover his “ actual loss,” but were not told how that actual loss was to be estimated in considering the result of the permanent injuries. For all such injuries, the rule should have been given to the jury that the measure of damages is the diminution in the market value of the property. Authority for this statement is ample. “The general principle upon which compensation for injuries to real property is given, is that the plaintiff should be reimbursed to the extent of the injury to the property. The injury caused by the defendant may be of a permanent nature; in such a case the measure of damages is the diminution in the market value of the property. If the injury caused a total or partial loss of the land for a limited time, the diminution in rental value is the measure. One of these two measures is always applicable. If the injury is easily reparable, the cost of repairing may be recovered. ; But it must be shown that the repairs were reasonable; and if the cost of repairing the injury is greater than the diminution in market value of tbe land the latter is always the true measure of damages.” 8 Sedgwick on Damages, sec. 932, quoting Seely v. Alden, 61 Pa. 302. This principle was followed in Fulmer v. Williams, 122 Pa. 191, where a riparian owner, on a navigable river, brought an action against a neighboring riparian owner, for injury to his property, by reason of loss of water power and diversion of the stream from its natural channel in front of his land, by deposit of rubbish and other obstructions. The trial judge permitted the jury to find damages for loss of water power, and diversion of the stream from its natural course. The measure of damages if the injury was permanent, was said to be the difference in the market value before and after the injury, thus applying the rule of Seely v. Alden, 61 Pa. 302. On appeal the case was reversed on the ground that in the absence of a grant from the commonwealth plaintiff had no right to water power; but it was said he could recover as riparian owner for diversion of water. The measure of damages was not discussed in this opinion, but in Williams v. Fulmer, 151 Pa. 405, the same questions came up again. On the measure of damages the trial judge charged that if the injury was permanent, the damages would be the depreciation in value of the property, or the cost of removing the obstructions, whichever was the lower amount. This was assigned for error. Tbe judgment was affirmed, this court saying: “The learned trial judge followed the rule laid down in Fulmer v. Williams, 122 Pa. 191, and tried the cause with discrimination and ability.”

. It is suggested in tbe argument here, that the trial court considered the decisions of this court in Robb v. Carnegie, 145 Pa. 324, and McGettigan v. Potts, 149 Pa. 155, as establishing tbe doctrine, that in no instance, and under no circumstances is depreciation of market value the measure of damages for any injury to real estate in an action between private parties. That these decisions are not to be so miderstood was pointed out in Thompson v. Traction Co., 181 Pa. 131, which was an action of trespass against a street railway company which had constructed its railway on a public road in front of plaintiffs’ property without their consent. Justice McCollum said (p. 136) : “ The right of the plaintiffs to compensation for the injury done to their property by the change of grade of the highway in front of it and the construction thereon of the railway is not disputed. The defendant, however, contends that the court adopted a wrong method of ascertaining the compensation they were entitled to receive for the injury thus inflicted. All the specifications of error relate to this contention, and the cases cited as sustaining it are Lentz v. Carnegie, 145 Pa. 612; McGettigan v. Potts, 149 Pa. 155, and Eshleman v. Martic Township, 152 Pa. 68. The rulings and instructions complained of were to the effect that the depreciation in the value of the property as the result of the change of grade and the construction and maintenance of the railway furnished the measure of compensation. ... No good reason appears for holding that the rulings and instructions in regard to the measure of compensation were erroneous. The mere fact that the defendant was not invested with the power or right of eminent domain is not a sufficient warrant for condemning them. It is true that they were in accord with the settled rule for the ascertainment of compensation in a case where a corporation invested with the privilege of taking private property for public use has in the construction or enlargement of its works, taken, injured, or destroyed the property of another. But this rule is not necessarily limited to such cases. It may be applied in a case of permanent injury to real estate when the issue is between private persons. An illustration of this may be found in Williams v. Fulmer, 151 Pa. 405. In that case the plaintiff sought to recover from the defendant compensation for an injury to his property by reason of the diversion of the water of a navigable river from its natural channel in front of his land, and it was held that ‘ compensatory damages in such case would be the depreciation in value of the property, if the injury were permanent, or the cost of removing the obstruction, whichever was the lower amount.’ ”

We do not think it is necessary to enlarge further upon this point. It is sufficient to say that the sound rule is, that where there is a permanent injury to real estate, the extent of the damage caused thereby is to be measured by the resulting depreciation in the value of the property. Permanency of injury is the proper test for the application of this rule.

In so far as the property of the plaintiff in this ease was permanently injured, the rule should have been applied.

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


author: Mr. Justice Brown,

text:
    Gregg’s Estate.

      Wills — Charitable bequests — Computation of time — Calendar month — Act of April 26, 1855, P. L. 328.
    A will containing a charitable bequest was executed on October 8, 1899, between the hours of 3 and 5 o’clock p. m. Testatrix died on November 8, 1899, between the hours of 7 and 8 o’clock p. m. Held, that the will was executed within one calendar month from the death, and that the charitable bequest failed.
    A calendar month is not one of any given number of days throughout the entire year, but varies in length according to the Gregorian calendar.
    A calendar month beginning in February, except in leap year, is of twenty-eight days duration; one beginning in April, June, September or November is of thirty days, and one beginning in either of the other seven months, of thirty-one days.
    The Act of April 26, 1855, P. L. 328, is for the protection of a testator for the last full calendar month of his life against yielding to any influences during that period which may unduly lead him to devote his estate, or any portion of it, to religious or charitable uses. It must be literally read and strictly construed, if effect is to be given to the legislative intent, and cannot be stretched to save a bequest clearly intended by the act to be void. Charitable or religious institutions claiming bequests or devises must bring themselves within it. As between them and the next of kin of a deceased there are no equities, and the rights of each are such only as are given by the statute.
    Argued Oct. 20, 1905.
    Appeal, No. 96, Oct. T., 1905, by Washington Hospital, from decree of O. O. Washington Co., Nov. T., 1904, No. 9, refusing petition to sell real estate in Estate of Mary A. Gregg, deceased.
    Before Mitchell, C. J., . Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition by Washington Hospital et al. to sell real estate. Before Taylor, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree of the court refusing the petition.

      Andrew M. Birni, with him William A. Wag, for appellant.—
    Where a right exists by law, dependent upon an element of time, the time will be computed by the method most valuable to the existence of such right, being extended to its utmost possibility when the continuance of the right is dependent upon something done or to be done during or within a certain time and contracted to its smallest bounds where the performance is required at or beyond a certain time: Cromelien v. Brink, 29 Pa. 522; Cascade Overseers v. Lewis Overseers, 148 Pa. 388 ; Ex parte Dean, 2 Cowen, 605 ; Cornell v. Moulton, 3 Denio, 12; Lester v. Garland, 15 Vesey Jr. 248 ; Socks’s Est., 15 Pa. Superior Ct. 281.
    The record in this case shows that as an actual physical fact thirty-one full days and at least three hours intervened between the time of the execution of the will and the decedent’s death. The court below proceeded upon the theory that the testatrix must be presumed to have occupied the whole of October 8 in making the will and the whole of November 8 in dying. This presumption is founded upon the ancient and moss-grown maxim that the law does not recognize fractions of a day. As a matter of fact, from the time of Coke and Blaekstone fractions of a day have been recognized and cognizance has been taken of the exact hour of an occurrence whenever the necessities of the case have required in order to prevent injustice : Maynard v. Asher, 17 Pa. 222; Mechanics’ Bank v. Gorman, 8 W. & S. 304; Long’s App., 23 Pa. 297; Small’s App., 24 Pa. 898; Patterson’s App., 96 Pa. 93; Louisville v. Portsmouth Savings Bank, 104 U. S. 469.

      John H. Murdoch, with him Edgar B. Murdoch, for appellee.
    —The language of the section is “ at least one calendar month, before the decease of the testator or alienor.” What is a calendar month ? In different cases this court has decided that a calendar month is a month varying in length from twenty-eight to thirty-one days, according to the common calendar in general use. In the case of Parker’s Estate, 14 W. N. C.566, this question is directly ruled under the section. Therefore, as the will in this case was executed on October 8, and as October is a month having thirty-one days, it would be necessary under the provisions of the act of 1855 that thirty-one days at least must intervene between the execution of the will and the time of the decease of the testator, otherwise the legacies are void: Kane v. Com., 89 Pa. 522.
    In ascertaining the meaning and making application of sec. 11, of the act of 1855 to the case in hand, full regard must be given to the language and all the language used by the lawmakers. It is not such a case as we often find in our laws requiring a certain act to be done “ within ” a fixed and limited period, for in such case if the act be done at any time before the period has actually expired, it is in time. Here, however, the legislature forbids the doing of an act and provides that a certain period of time “ at least ” must intervene between two acts or periods of time, otherwise the will shall be void: Roberts v. Wilcock, 8 W. & S. 464; Carl’s App., 106 Pa. 635; Davis v. Davis, 128 Pa. 100; Scheibner v. Baer, 174 Pa. 482 ; Socks’s Est., 15 Pa. Superior Ct. 281.
    January 2, 1906:
   Opinion by

Mr. Justice Brown,

The will of Mary A. Gregg, under which the Washington Hospital' claims a charitable bequest, was executed on October 8, 1899, between the hours of 3 and 5 o’clock p. m. She died on November 8, of the same year, between the hours of 7 and 8 o’clock p. m., and the single question raised on this. appeal is whether the bequest to the appellant is defeated by the Act of April 26, 1855, P. L. 328.

By the' eleventh section of the act it is declared “ that no estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to any body politic, or to any person in trust for religious or charitable uses, except the same be done by deed or will, attested by two credible, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor; and all dispositions of property contrary hereto, shall be void and go to the residuary legatee or devisee, next of kin, or heirs, according to law.” A calendar month is not one of any given number of days throughout the entire year, but varies in length according to the Gregorian calendar. A calendar month beginning in February, except in leap year, is of twenty-eight days’ duration; one beginning in April, June, September or November is of thirty days, and one beginning in either of the other seven months, of thirty-one days. As the calendar month to elapse between the date of the execution of this will and the death of the testatrix was one of thirty-one days, the bequest made to the appellant is void, unless, after the will was executed in the manner directed by the statute, “ at least ” that number of days intervened before her death.

In the elaborate brief submitted by counsel for the appellant decisions by courts in this country and in England have been cited upon the general principles regulating the computation of time, and, in the light of some of them, we are asked to disturb the decree below and declare the bequest operative. We are not, however, dealing with general principles or rules of construction, but with the express words of a statute, which cannot be overridden, even in the furtherance of what may seem to be justice. The fiction of the law that a day has no fractions yields at times, when equity requires that hours be counted, or that the exact time a thing is done be noted, but never when the duration of time, as fixed by a statute, is free from all doubt. “ At least one calendar month ” must elapse between the execution of a will containing a charitable bequest and the death of the testator, if the bequest is to be valid. The meaning of the words “ at ]east ” is “ in the smallest or lowest degree; at the lowest(estimate, or at the smallest concession or claim; at the smallest number: ” 4 Cyc. of Law & Proc., 366. In declaring that “at least one calendar month” must elapso between the execution of a will containing a charitable bequest and the death of the testator, the manifest meaning of the statute is that such a month must fully elapse between the dates of the two events. A calendar month is made up of days — in this case, of thirty-one days. These are full, clear thirty-one days, not thirty days and fractions of two other days, making in hours another day, and, with the other thirty, thirty-one days, but thirty-one separate and independent days, the first beginning when October 8 ended, at midnight, and the last ending at the close of November 8, at midnight. The computation in hours which the appellant makes, from 5 p. M. October 8, to 8 p. M. November 8, it is true, would make in hours thirty-one and one-eighth days ; but this is not the computation contemplated by the statute. It is “ at least á calendar month,” made up, at certain seasons of the year, of a certain number of full, clear days, and that kind of a month did not intervene between the execution of this will and the death of the testatrix. “ When so many ‘ clear days ’ or so many days ‘ at least ’ are given to do an act, or ‘ not less than ’ so many days must intervene, both the terminal days are excluded : ” Endlich on Interpretation of Statutes, sec. 391.

The act of 1855 is for the protection of a testator for the last full calendar month of his life against yielding to any influences during that period — so often a susceptible one — which may unduly lead him to devote his estate, or any portion of it, to religious or charitable uses. It must be literally read and strictly construed, if effect is to be given to the legislative intent, and cannot be stretched to save a bequest clearly intended by the act to be void. Charitable or religious institutions claiming bequests or devises must bring themselves within it. As between them and the next of kin of a testator there are no equities, and the rights of each are such only as are given by the statute.

As the meaning of the words of the act under consideration is so plain, we do not deem it necessary to apply the rule as to the computation of time, nor refer to the Act of June 20,1883, P. L. 136, declaratory of it, requiring the exclusion of the day on which an act is done. Under that rule, with October 8 excluded, the full calendar month would not have expired until the end of November 8.

Decree affirmed and appeal dismissed at cost of appellant.


author: Mr. J ustice Elkin,

text:
    Weller v. Weller, Appellant.

      Husband and wife — Desertion—Evidence—Burden of proof — Act of May 4, 1855, P. L. 430 — Party dead.

    In an action of ejectment where the question involved is whether a husband had wilfully and maliciously deserted his wife for one year prior to her death so as to deprive him of his curtesy, as provided by the Act of May 4, 1855, P. L. 430, the burden is on the husband to show a reasonable and lawful cause for the desertion. If the husband shows that he had made repeated attempts to effect a reconciliation with his wife, but had been repeatedly repulsed, had been locked from his house, and notified by his wife not to continue his visits, a verdict and judgment in his favor will be sustained.
    In such a case a witness for the plaintiff may be permitted to testify to a conversation not in the presence of the deceased wife, where the purpose of the testimony is to contradict a son of the plaintiff who was one of the parties defendant.
    Argued Oct. 21, 1905.
    Appeal, No. 98, Oct. T., 1905, from judgment of C. P. Washington Co., Aug. T., 1904, No. 58, on verdict for plaintiff in case of Daniel L. Weller v. Ern K. Weller et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Cannonsburg Borougli.
    At the trial Andrew Mackey, a witness for plaintiff, was asked this question :
    Mr. Parker: Q. Now, I asked Lon Weller whether or not he had not in your presence called his father a lying son of a bitch? A. Yes, sir ; he — ■
    Mr. Irwin: What do you propose to prove ?
    Mr. Parker: We propose to contradict Mr. Weller, the witness, as to that fact, as bearing upon his interest and bias and credibility as a witness.
    The Court: Well, he was asked that question.
    Mr. Parker: He was asked it and denied it.
    Mr. Irwin: The evidence is objected to. Just let me ask a question.
    Mr. Irwin: Q. Mr. Mackey, are you about to testify to something that occurred not in the presence of Mrs. Weller? A. In the presence of Mr. Lon Weller, Dan Weller and myself. Q. Mrs. Weller not being present? A. Mrs. Weller not being present.
    The evidence is objected to as incompetent for the reason that no matter what Lon Weller may have said to his father not in the presence of the mother and wife, it afforded no excuse for the husband deserting his wife, and sheds no light upon the issue involved here, and the inquiry made of Lon Weller being, on a collateral matter, his answer is binding upon the plaintiff and cannot be contradicted' in this case.
    The Court: I think we will allow you to ask the question, because it is undisputed here that all the children were standing with the mother and the claim being on the part of the father that they made it so hot for him he had to get out. It bears on the question at issue here, of whether or not the desertion was wilful. We would not allow it if it were independent and unconnected with the family affair. We think this is the kind of a case where the witnesses were members of the same family and evidently taking sides with one parent against the other, and that the whole transaction and manner of living and the feeling and conduct towards them ought to be put before the jury here. We will seal a bill for the defendants and allow the question to be asked. [1]
    Q. Now, I asked Lon Weller whether or not he had not in your presence called his father a lying son of a bitcli. I ask you whether that is true or not? A. Yes, sir. Q. And who heard it ? Who was there ? A. Lon, his father and I. I went down there and Lon was on the wagon; I called him down, and he went back to his father and had a little chewing match, and finally he called him a damned lying son of a bitch. That’s what he said.
    Mr. Irwin: Q. I would like to ask the witness a question preliminary to make an objection on the record.
    Mr. Irwin: Mrs. Patterson, the hearing that you refer to now was the hearing oil the petition of Mrs. Weller to the court of Allegheny county to be declared a femme sole trader on the ground of. her husband’s desertion of her; is that correct ? A. Yes, sir.
    Mr. Irwin: The testimony now offered is objected to for the reason that no matter what Lon Weller called his father at the time of his testimony in the proceeding in Pittsburg, it sheds no light upon the relations between Daniel L. Weller and Mary J. Weller, his wife, and afforded no justification for his desertion of his wife, and his refusal to support her.
    Mr. Parker: No, nor wo don’t claim it does; it goes simply to the credibility of the witness, Mr. Ernest Weller.
    The Court: Well, that being the sole purpose, the objection then is overruled and the offer admitted and on request of defendants, exception allowed and sealed. [2]
    Q. What did he say about his father ? A. It was after Miss Povard had been on the stand and it was concerning her testimony, what she had said, and he said that any man that would go a year or two years without a bath was nothing but a hog.
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.

      Ti. W. Irwin, with him A. T. Morgan and James P. Brown-lee, for appellant.
    A husband who has wilfully and maliciously deserted his wife for one year or upwards, previous to her death, cannot, since the Act of May 4, 1855, P. L. 480, successfully claim an estate as tenant by the curtesy in lands of which she died seized. Where an explicit desertion appears, it is presumed to be wilful and malicious, and it lies on him to show reasonable and lawful cause for it. If he cannot justify his abandonment of her by evidence which would entitle him to a divorce, he cannot have the rights of a husband in her estate: Hahn v. Bealor, 182 Pa. 242 ; Bealor v. Hahn, 117 Pa. 169.

      Norman E. Clark, with him John C. Bane, W. S. Parker and Winfield MeIlvaine, for appellee.
    January 2,1906 :
   Opinion by

Mr. J ustice Elkin,

■ This is an action of ejectment by the surviving husband to recover possession of certain real estate of which his wife died seized. The defendants are the children and heirs at law of the deceased wife. The right of the husband as tenant by the curtesy to enjoy the use and possession of the real estate in question is denied by reason of the following provisions of the Act of May 4, 1855, P. L. 480, to wit: “No husband who shall have as aforesaid, for one year or upwards previous to the death of his wife, wilfully neglected or refused to provide for his wife, or shall have for that period or upwards wilfully and maliciously deserted her, shall have the right to claim any right or title in her real or personal estate after her decease, as tenant by the curtesy . . . .” The question tried in the court below and raised by this appeal is whether there was a wilful and malicious desertion of the wife by the husband from July 4, 1900, to the time of her death July 7, 1903.

Where the facts show a desertion, it is presumed to be willful and malicious, and the burden is on the husband to show reasonable and lawful cause for it: Bealor v. Hahn, 117 Pa. 169; Hahn v. Bealor, 132 Pa. 242.

It is conceded that the husband withdrew from the home of his wife July 4, 1900, under circumstances requiring him to show reasonable and lawful cause for his action. At the trial the learned court instructed the jury that the manner in which the husband left his wife and family on the date mentioned, and the fact that he had remained away for upwards of a year before attempting to return, raised the presumption of a wilful and malicious desertion under the law, and placed upon him the burden of showing that it was not so. The husband met this burden by testimony giving in detail the occurrences which led to his withdrawal from his house, and his repeated attempts to effect a reconciliation with his wife and live with his family. It is in evidence that on several occasions he went back to his home and attempted to see his wife but was unsuccessful. He failed in these efforts because the doors were locked and his wife would not admit him to her presence. The evidence further shows that the wife sent him a letter in which he is notified not to come upon the premises or annoy her further with his visits. The husband is corroborated by other witnesses showing, or tending to show, that he made efforts to return to his home and live with his wife and family. Under these circumstances the learned trial judge very properly submitted the case to the jury to determine whether the presumption of wilful and malicious desertion had been rebutted by the evidence. The jury returned a verdict in favor of the plaintiff. It was clearly a case for the jury, and, unless testimony was improperly admitted, tbeir decision is final.

The first assignment of error raises the question of the admissibility of the testimony of Andrew Mackey, because the conversation referred to was not in the presence of the wife. It is argued that what the son said in the absence of the mother could not be used for the purpose of showing that the husband did not willfully and maliciously desert his wife. The answer to this contention is that the testimony was offered for the purpose of contradicting Lon Weller, the son, and as bearing upon his interest, bias and credibility. It was competent for this purpose. The observations of the learned trial judge, wherein it was stated that this testimony bore generally upon the family relations and the question of the willful and-malicious desertion of the husband, did no harm and do not constitute grounds for reversible error. What has been said about the first assignment of error applies generally to the second.

It was a question for the jury to determine whether the husband had willfully and maliciously deserted his wife for one year or upwards prior to her death, so as to deny himself the right as tenant by the curtesy to the use and possession of the real estate of which she died seized. The jury has found in favor of the plaintiff and we see no reason to disturb that finding.

Judgment affirmed.


author: Mr. Justice Stewart, Mestbezat, J.,

text:
    Matthew’s License.

      Liquor law — Petition—Omission of names of surety — Bond.
    Where a bond in proper form is attached to and filed with a petition for a liquor license which is regular in all respects, except that the space left for the names of the proposed sureties is not filled in, the defect is not substantial, and will not defeat the application.
    In such a case an amendment of the petition by inserting therein the names of the sureties, is not only unnecessary, but improper in view of the fact that it would introduce into the petition other facts than those stated therein when the jurat and certificate were made.
    Mestrezat and Potter, JJ., dissent.

      Argued Oct. 11, 1905.
    Appeal, No. 143, Oct. T., 1905, by-Benjamin H. Matthew, from judgment of Superior Court, April T., 1905, No. 262, reversing order of Q. S. Somerset Co., Feb* T., 1905, refusing a liquor license In re Application for Retail Liquor License of Benjamin H. Matthew.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ,
    Affirmed.
    Appeal from Superior Court.
    The petition, certificate and bond filed in the court of quarter sessions were as follows :
    ■“ This petition respectfully represents that your petitioner is a citizen of the United States; of good moral character and temperate habits, and desires to keep a Hotel, Inn or Tavern, and prays your Honorable Court to grant him a license under the laws of this commonwealth, to sell liquors in quantities not exceeding one quart.
    “ Your petitioner further represents :
    “1. That his name is Benjamin'H. Matthew and that his present residence is Rockwood Boro., Somerset county, Pennsylvania, and that he has resided there for more than one year last past.
    “ 2. The particular place for which license is desired is the * Haines House ’ situate on the south-east corner at the intersection of Main and Market streets, Rockwood Boro., Somerset county, Pennsylvania.

      “3. That your petitioner was born in Hazleton, Preston county, West Virginia, A. D. 1881.
    “ 4. The names of the owners of the premises where said business is to be conducted are Fred W. Biesecker and J. A. Berkey.
    “ 5. That the place to be licensed is necessary for the accommodation of the public, and is suitable as well as necessary for the entertainment of strangers and travelers; that he has for their exclusive use at least twenty-three bed-rooms and twenty-three beds.
    “ 6. That your petitioner is not in any manner interested in the profits of the business conducted at any other place in said county, where any of said liquors are sold or kept for sale.

      “ 7. That your petitioner is the only person in any manner pecuniarily interested in the business so asked to be licensed, and that no other person shall be in any manner pecuniarily interested therein during the continuance of said license.
    “8. Your petitioner has not had a license for the sale of liquor in this Commonwealth revoked during any portion of the year preceding this application.
    “ 9. The names of the persons who will be his sureties on the bond which is by law required are (1) -----(2)--■ who are reputable freeholders of Somerset county, Pennsylvania, where the said liquors are to be sold; and your applicant further sets forth that each of the said sureties is a bona fide owner of real estate in the said county, worth over and above all encumbrances, the sum of |2,000, and that it would sell for that much at public sale, and that neither of said sureties is engaged in the manufacture of vinous, spirituous, malt or brewed liquors.
    “ Benjamin H. Matthew,
    “ Petitioner.
    State oe Pennsylvania, )

    County oe Somerset. \ ss':
    “ Before me, a Justice of the Peace, personally came Benjamin H. Matthew, aforesaid, and being duly --according to law, saith that the statements in the foregoing petition are true.
    Affirmed and subscribed before me, this 16th day of January, A. d. 1905.
    “ B. H. Matthew.
    “ David Gildner, J. P.
    “ My Commission expires First Monday of May, 1905.”
    “ CERTIFICATE IN SUPPORT OF PETITION.
    “We, the undersigned, reputable qualified electors of the Borough of Rockwood, County of Somerset, State of Penn’a, hereby certify that we have been acquainted with the foregoing petitioner for license, viz : Benjamin H. Matthew, that we have good reason to believe that each and all statements in the foregoing petition are true, and therefore pray that the prayer of said petitioner may be granted and that the license prayed- for may issue.”
    (Signed by 21 citizens.)
    “ Bond.
    £‘ KNOW ALL MEN BY THESE PRESENTS,
    “ That we, Benjamin H. Matthew principal, and (1) H. S. S warner, (2) A. C. Sterner, sureties, are held and firmly bound unto, the Commonwealth of Pennsylvania, in the penal sum of Two Thousand Dollars, lawful money of the United States of America, to be paid to the said Commonwealth, her certain attorney or assigns, to which payment well and truly to. be made, we and each of us, do bind ourselves, and each of us, our and each of our heirs, executors and administrators, firmly.by these presents. Sealed with our seals, and dated the 14th day of January in the year of our Lord one thousand nine hundred and five.
    “Now the condition of this obligation is such, that if the' above bounden Benjamin H. Matthew, principal, and (1)-■ (2)-shall faithfully observe all the laws of the Commonwealth of Pennsylvania relating to the selling or furnishing of vinous, spirituous, malt or brewed liquors, or any admixture thereof, and shall pay all damages which may be recovered in any,action which may be instituted against us under the provisions of any Act of Assembly, and shall pay all costs, fines and penalties which may be imposed upon us under any indictment for violating the act of May 13, 1887, and supplements, entitled ‘ An act to restrain and regulate the sale of vinous, and spirituous, malt or brewed liquors, or any admixture thereof,’ or any other Act of Assembly relating to selling or furnishing liquors as aforesaid, then this obligation shall be void and of no effect, or else shall be and remain in full force and virtue.
    “ And further, we do by these presents empower the District Attorney of Somerset County or any other attorney of any Court of Record of the Commonwealth of Pennsylvania, to appear for us therein and confess judgment against us for the said penal sum, with costs of suit and release of all errors, and do hereby waive the right of inquisition on real estate, and all laws exempting real or personal property from levy and sale on execution.
    “ B. H. Matthew, [Seal.]
    “ H. S. Swarner, [Seal.]
    “ A. C.. Sterner, [Seal.]
    “ Sealed and delivered in the presence of
    “ David Gildneb.”
    State of Pennsylvania, ) County of Somerset, j
    “Before me a Justice of the Peace personally came H. S. Swarner one of the sureties on the foregoing Bond, who, being duly qualified according to law, deposes and says that he is the bona fide owner of real estate in the said county, worth over and above all encumbrances the sum of Two Thousand Dollars and that it would sell for that amount at public sale.
    “ H. S. Swarner.
    “ Affirmed and subscribed before me this 14th day of January, 1905.
    “ David Gildneb, J. P.”
    State of Pennsylvania, l County of Somerset. j ss':
    “Before me, a Justice of the Peace personally came A. C. Sterner one of the sureties on the foregoing Bond, who, being duly qualified according to law, deposes and says that he is the bona fide owner of real estate in the said county, worth over and above all encumbrances the sum of Two Thousand Dollars, and that it would sell for that amount at public sale.
    “A. C. Sterner.
    “ Affirmed and subscribed before me, this 14th day of January, 1905.
    “ David Gildneb, J. P.”
    The court of quarter sessions made an order refusing the petition. The Superior Court reversed this order.

      -Error assigned was the judgment of the Superior Court.

      W. II. Rupp el, with him A. II. Coffroth and J. O. Lowry, for appellant.
    The amendment should not have been allowed: Porter’s License, 4 Kulp, 356; Heery’s License, 4 Kulp, 57 ; Grant’s License, 2 Pa. C. C. Rep. 87; Faulkner’s License, 2 Pa. C. G. Rep. 86; Donmoyer’s License, 9 Pa. C. C. Rep. 303; Sherry’s License, 12 Pa. C. C. Rep. 129; Mercersburg Licenses, 5 Pa. Dist. Rep. 171; Bailey’s License, 5 Pa. Dist. Rep. 172; Miller’s License, 13 Pa. Superior Ct. 272; Forst’s License, 23 Pa. Superior Ct. 600; Walsh’s License, 24 Pa. Superior Ct. 87.
    The lower court’s action in granting or refusing a license and permitting or refusing an amendment, in the absence of clear abuse of legal discretion, is not reversible by the appellate court: Reed’s Appeal, 114 Pa. 452 ; Raudenbusch’s Petition, 120 Pa. 328; Nordstrom’s Petition, 127 Pa. 542; Sparrow’s Petition, 138 Pa. 116 ; Gross’s License, 1 Pa. Superior Ct. 640; Kilgore & Co’s. License, 13 Pa. Superior Ct. 543.

      J. A. Berkey, for appellee.
    The petition in itself, as a matter of law, is sufficient. It contains every requirement of the fifth section of the act of May 13, 1887, and its supplements save the formal matter of writing the names of the two sureties within its own lines : Branch’s License, 164 Pa. 427; Miller’s License, 13 Pa. Superior Ct. 272 ; Brewing Co’s. License, 14 Pa. Superior Ct. 188; Beates v. Retallick, 23 Pa. 288; Com. v. Silcox, 161 Pa. 484.
    January 2,1906:
   Opinion by

Mr. Justice Stewart,

In refusing the amendment asked for the court below was entirely right, but for another and quite different reason than that given in the opinion filed by the presiding judge.

Conceding the power of the court to allow a proper and adequate amendment, under the facts presented, the amendment proposed fell short of these conditions. What was asked for was leave to amend by inserting in the original petition the names of the sureties who were expected to join in the - required bond.

The inadequacy of the offer is apparent when it is considered, that being made, the averment that each of the sureties “ is a bona fide owner of real estate in -said county, worth over and above all incumbrances the sum of $2,000 ; that it would sell for that much at public sale, and that the applicant is not engaged in the manufacture of vinous, spiritous, malt or brewed liquors,” would stand unverified by the affidavit of petitioner, since, while this statement appeared in the original petition, the names o£ the sureties not being given, it was without meaning and had no place in the jurat of the applicant. Not only so, but for like reason, the certificate of the twelve reputable, qualified electors, “ that they have reason to believe that each and all the statements contained in the petition are true,” would be lacking as well, no such statement of fact appearing in the petition when they certified thereto.

The effect of the proposed amendment being to introduce in the petition other facts than those stated therein, when the jurat and certificate were made, the impropriety of allowing such change need not be discussed.

The case turns on whether any amendment was necessary, or, in other words, whether the application as made was sufficient. In Lis opinion filed the learned judge says: “We would permit this amendment and grant the license if we believed we had the power to do so.” His conclusion that he had not the power rests entirely upon the omission of the names of the sureties from the petition, notwithstanding the fact that the applicant, in the judgment of the court, had complied with every requirement of the law, with the single exception referred to. The language of the court admits of no other meaning. The applicant then had satisfied the court, and in the way pointed out by the statute, that he was free from all legal disability in this connection; that the place to be licensed was necessary for the accommodation of the public, and that the sureties on his bond were sufficient.

The inquiry here is: Did the omission of the names of the sureties from the petition in any way defeat or interfere with the purpose of the statute ? If it did, such omission would necessarily be fatal to the proceeding.

The purpose of the several requirements as to what shall appear in the petition for a license to sell intoxicating liquors, is not the same as to each. Some are manifestly intended to acquaint the public with certain facts with respect to the pending application in advance of the hearing. The publication of these is required to be made in two newspapers to be designated by the court, The fact that publication of the names of the sureties is not required suggests that the chief, if not the only, purpose in requiring the names of the sureties to appear in the petition was to aid the court in finally passing upon the adequacy of the bond that is necessary in all cases, since it is expressly provided that the license shall not issue until the applicant shall have executed a bond in the penal sum of $2,000, with two sufficient sureties to be approved by the court. With the names of the sureties appearing, and their sufficiency attested by the oath of the applicant, and the certificate of the required number of reputable electors, in the absence of anything to excite doubt or suspicion or contest, the court ordinarily can feel satisfied in approving the bond without inquiring further.

The importance of such requirement, in aid of the court, will be readily understood by those whose duty it is to pass upon such questions. If it be said that the sufficiency of the bond being proper matter for exception, as much as any other fact set out in the petition, the requirement in this particular can be none the less for public information, the answer is, it may be, but, that information was not to be gained by publication, but by inspection of the papers filed. The law must so contemplate, otherwise it would have required publication of the names of the sureties.

Now an inspection of the papers filed in this case could not have failed to disclose the names of the sureties. The bond was filed with the application, perfected by the signatures of the sureties. Under such circumstances how can it be said that any essential requirement of the statute was omitted ?

It .results that the omission of the names of the sureties from the petition, under the peculiar facts in this case, was not a substantial defect and, therefore, ought not to have defeated the application.

The appeal is therefore dismissed, and for the reasons above stated.

The order of the Superior Court is affirmed.

Mestbezat, J.,

dissenting:

It will be observed that the majority of the court agrees with the court of quarter sessions in refusing the application for an amendment of the petition for the license, and thereby reverses the judgment of the Superior Court on that question. This result accords with all the prior decisions of this court, and of the well-considered cases of the quarter sessions throughout the state.

This court, however, affirms the judgment of the Superior Court on the ground that no amendment of the petition was necessary, and that the application in its incomplete form was sufficient to warrant the quarter sessions in granting the license. In other words, the majority of the court holds that a license may be granted on a petition which omits the averment of some of the facts which the statute declares it “ shall contain.” This position of the court, in my judgment, cannot be sustained, either on principle or by precedent. It is at variance with the settled practice of every license court of the state. It also violates that provision of sec. 13 of the act of March 21,1806, 1 Purd. 77, which provides that “ in all cases where .... anything is directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued.”

The Act of May 13, 1887, P. L. 108,1 Purd. 1226, requires the applicant to file a petition and the facts which it shall contain are required by section five to be set out in ten separate and distinct paragraphs. The section provides in its ninth paragraph, inter alia, as follows: “ Said petition shall contain .... Ninth. The names of no less than two reputable freeholders of the county where the liquor is to be sold, who will be his, her or their sureties on the bond which is required, and a statement that each of said sureties is a bona fide owner of real estate in said county worth, over and above all incumbrances, the sum of two thousand dollars, and that it would sell for that much at public sale, and that he is not engaged in the manufacture of spirituous, vinous, malt or brewed liquors.” The petition presented to the quarter sessions to obtain this license omitted to state the names of two reputable freeholders of the county who would become sureties on the bond which the licensee is required to give. The effect of this omission, as correctly held by the majority of the court, was to leave out of the petition all the facts which the ninth paragraph of section five declares it shall contain. Ten days after the day fixed by rule of court for the hearing of the application, the applicant ashed leave to amend his petition “ by writing therein in paragraph nine, the names of his sureties, to wit: H. S. Swarner and A. C. Sterner.” This was refused by the quarter sessions and its action is approved by this court. But this court holds'that the license should have been granted on the petition as it was filed, notwithstanding it failed to set forth the facts required by the ninth paragraph of section five of the act of 1887. It will be observed that it is the positive mandate of the statute that the names of the bondsmen and the other facts stated in paragraph nine shall be set forth in the petition. These are facts which the statute imperatively requires the applicant to include in his petition. They are, therefore, jurisdictional facts and their omission from the petition is fatal to the application. If an applicant may neglect or refuse to include in his petition the facts required by the ninth paragraph of the fifth section of the act, he may omit any other facts which the statute requires he shall state in order to confer authority on the quarter sessions to grant the license. So far as it affects the question here involved, it is wholly immaterial what purpose actuated the legislature in requiring the names of the bondsmen and the other facts mentioned in the paragraph to be inserted in the petition. It would not be difficult to show, if necessary, that it is a wise provision and that there are abundant reasons why they should be included in the petition. But it is sufficient to say that the law which authorizes the court to grant the license — and in the absence of a statutory provision no license can be granted in this state — requires the applicant to file a petition, and positively and unequivocally says that “ said petition shall contain ” the facts set out in paragraph nine of section five of the act of 1887.

I regard this decision of the court as most unfortunate. It strikes down the plain requirements of the statute which the legislature, in obedience to the sentiment of the state, enacted, as its title shows, “ to restrain and regulate the sale ” of intoxicating liquors. Step by step the people of the commonwealth, through their representatives, have imposed greater restrictions upon the sale of liquors, and the settled policy of the state, as shown by the legislative enactments upon the subject, has ever been “ to restrain ” the liquor traffic. The present law is the most stringent legislation enacted since we became a commonwealth. Recognizing the unquestioned evils of intemperance and desiring to abate them, as far as possible, the act provides certain specific and stringent regulations, deemed necessary to carry out the purpose in view, with which the applicant must comply before he can be authorized by the court to engage in the traffic. It also imposes severe penalties upon those who sell or furnish liquors contrary to its provisions. In the face of this legislation and its obvious purpose, this court by its decision annuls the imperative command of the statute and thereby defeats the clearly expressed will of the people of the commonwealth. This is not judicial interpretation; it is the assumption by the court of legislative authority which has been conferred by the constitution solely upon another and co-ordinate branch of the government. It in effect repeals one of the most wholesome provisions of a statute ordained for the purpose of regulating a traffic which, uncontrolled, is subversive of the morals of the people and endangers the peace and good order of the commonwealth.

I would reverse the judgment of the Superior Court, and affirm the order of the court of quarter sessions refusing to grant the license.

I join in this dissent. Potter, J.


author: Mr. Justice Stewart,

text:
    Regan’s License, McIntyre’s License, Tressler’s License, Kyle’s License, Straub’s License, Falknor’s License, Bloom’s License.
    January 2, 1906:
   Opinion by

Mr. Justice Stewart,

In the appeal to the Superior Court, it was argued by counsel that the same judgment should be here entered as in In re Application of Benjamin H. Matthew, entered in that eourt to No. 262, of April Term, 1905. The Superior Court passed upon no questions not presented in the former case; nor do we. For reasons stated in opinion this day filed in appeal of Benjamin H. Matthew, ante, p. 269, the order of" the Superior Court is affirmed.


text:
    Burns v. Pennsylvania Railroad Company, Appellant.

      Evidence — Purpose of offer — Objection—Trial.
    Where the plaintiff in the trial of an action, offers evidence without disclosing the purpose of the offer, and the defendant in objecting to the offer assumes that it is for a purpose which makes the offer inadmissible, and the plaintiff makes no disclaimer of the purpose attributed in the objection, the court has no right to assume that another and legitimate purpose was intended.

      Railroads — Crossings — Negligence — Safety gates — Flagmen — Evidence • — Purpose of offer — Objection.
    Where the plaintiff in an accident case offers to show that no safety gates or watchmen were at a crossing, and objection is made that the offer is incompetent because the defendant was not required to erect safety gates, or place watchmen at the crossing in question, and the plaintiff does not disclaim the purpose attributed in the objection, the court is in error in overruling the objection on the ground that the evidence was admissible to determine the rate of speed which was reasonably consistent with public safety at the crossing.
    Where such evidence is admitted, its admission should always be followed by proper instructions from the court as to how it is to be considered and applied by the jury.

      Negligence — Damages—Charge of court — Unfair treatment of testimony.

    In a case by a wife to recover damages for the death of her husband, where two witnesses for the plaintiff testify as to the wages which the deceased received, while the time officer of the company who employed the deceased called for the defendant, testified that he only received about one-half of the amount stated by plaintiff’s witnesses, it is reversible error for the court in its charge to refer to the testimony of the two witnesses for plaintiff as to the wages of the deceased, without alluding in any way to the testimony of the time officer.

      Negligence — Charge of court — Improper charge — Position of danger.

    It is reversible error in an accident case for the court to instruct the jury as to the law governing cases where one lawfully in a-position of danger, is injured in attempting to escape, where the evidence shows that the accident was the result of a person getting into a position of danger, and hot the result of an effort to get out of it.
    Argued Oct. 9, 1905.
    Appeal, No. 167, Oct. T., 1905, by defendant, from judgment of C. P. Cambria Co., June T., 1904, No. 248, on verdict for plaintiff in case of Catherine Burns v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      Trespass to. recover damages for death of plaintiff’s husband. Before O’Conn on, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial plaintiff was asked this question :
    “ Q. Please state whether there were any gates or watchmen stationed at that crossing. A. No, sir.”
    Objected to as being incompetent and immaterial and improper, because it is not required of the company that it shall erect safety gates or place watchmen at crossings of this character.
    The Court: The objection is overruled, exception noted and bill sealed for the defendant company. We do not hold by this ruling of the court that the company is obliged to station watchmen or to erect gates at the crossings, but we believe it to be a fact which the plaintiff is permitted to prove in the case.
    The court charged in part as follows:
    [Mrs. Burns, his wife, has testified that his check amounted to from $35.00 to $40.00 every two weeks; and the evidence of Mr. Theiss was that his wages averaged from $75.00 to $80.00 per month.] [30]
    [In view of the arguments of counsel in the case and the suggestion of counsel for the plaintiff, without having submitted a special point, we instruct you that where one is lawfully in a position of danger, he is not required to exercise the same cool, deliberate judgment that might be required of him under different circumstances; if, in attempting to evade danger he makes a mistake and does not employ the best means of escape, he is not held responsible. As we suggested, we do not see how this question can be seriously considered in the case, but we may not view it as the counsel do and we will let you pass upon it.] [31]
    Verdict and judgment for plaintiff for $12,537. Defendant appealed.

      Errors assigned among others were (9) ruling on evidence, quoting the bill of exceptions; (30, 31) above instructions, quoting them.

      II. W. Storey, for appellant,
    cited as to the inadequacy of the charge on the subject of the deceased’s wages : Taylor v. Burrell, 7 Pa. Superior Ct. 461; Parker v. Donaldson, 6 W & S. 132; Young v. Merkel, 163 Pa. 513; Peirson v. Duncan, 162 Pa. 187; Lerch v. Bard, 177 Pa. 197.

      JE. T. MoNeelis, for appellee. .
    January 2,1906 :
   Opinion by

Mr. Justice Stewart,

This case was before us in 210 Pa. 90. It is unnecessary to repeat the facts here. Sufficient to say that it is an action brought by a wife to recover damages for the death of her husband, who was killed by a passing train while attempting to pass over the tracks of defendant company, at a public crossing in the suburbs of Johnstown, on the morning of January 9, 1903. .

In this second appeal we have thirty-one assignments of error. The number would not be nearly so great had proper effort been made to avoid unnecessary duplication; it would have been lessened materially had the distinction in function between court and jury been kept in mind ; while several, not otherwise open to criticism, would have been omitted, if what was said by this court in 210 Pa. supra, had been closely observed. It would, without serving any good purpose, extend this opinion to unreasonable limits, were we to discuss each separate assignment. All have been considered; those to. which we make no special reference may be regarded as dismissed, and the reasons may be gathered from the observation above.

We pass directly to the consideration of the ninth, which complains of error in the ruling that permitted plaintiff to show the absence of safety gates and watchmen at the crossing where the accident occurred.

When the witness on the stand was interrogated as to this, nothing was said as to the purpose, nor was any demand made that it be expressed; but an objection was promptly made that indicated very clearly what the objecting counsel supposed the purpose to be; the ground stated in the objection being incompetency and immateriality, “ because it is not required of the company that it shall erect safety gates, or place watchmen at crossings of this character.”

If the purpose was to ascribe negligence from failure to have gates and watchmen at the crossing — and that is what the objection as stated assumes — the objection should have been sustained, both in view of the law and the pleadings in the case, except as another and competent purpose had then been asserted. The plaintiff failing to disclose any purpose, and failing to disclaim that attributed in the objection, the court should, of its own motion have required the purpose to be expressed, or have ruled the matter as though the purpose was what the objection said it was. The court adopted neither course, but overruled the objection, with the observation that, “We do not hold by this ruling that the company is obliged to station watchmen or to erect gates at the crossing, but we believe it to be a fact which the plaintiff is permitted to prove in the case.” This was begging the question. The plaintiff’s right to prove the fact depended on the use it was proposed to make of it; and in the absence of any disclaimer from plaintiff that the purpose was what was expressed in the objection, the court had no right to assume that another and legitimate purpose was intended. The language used by the learned judge, shows clearly that he understood the objection to be directed to a particular purpose, which he admitted would make the evidence inadmissible. It was admissible for one purpose only. That flagmen are not stationed at the crossing, and that gates are not maintained there, are matters proper to be considered in connection with other facts in a given case, in determining the rate of speed which is reasonably consistent with public safety: Lehigh Valley Railroad Co. v. Brandtmaier, 113 Pa. 610. The negligence charged here was the excessive rate of speed, under the condition there existing. Failure to maintain gates or keep watchmen at the crossing was not charged in plaintiff’s statement as negligence, except as connected with disregard of a borough ordinance, which we held when the case was here before, imposed no duty or obligation on the defendant company. The only legitimate purpose for which the evidence could be used, was to exhibit to the jury the situation and conditions where the accident occurred, so that they might the more intelligently pass upon the question in issue, viz., was the speed of the train reasonably consistent with public safety, or was it not ?

We remark further, that while the evidence would have been admissible for the purpose above indicated, yet because of the danger which must always attend the introduction of such a fact, in a case of this character, of its significance being misapprehended, its admission should always be followed by proper instructions from the court as to how it is to be Considered and applied by the jury. Not only was there failure in the court to instrüct the jury as to the effect they were to give the evidence, but the observation of the court, “ that it was a fact which the plaintiff is permitted to prove in the ease,” admitted it into the case with unbridled license, to serve any purpose the jury might ask of it. The preceding remark, that by the ruling “ the court did not hold that the company was obliged to station watchmen or erect gates at the crossing,” did not restrict it, since the inference that the average juror would be likely to derive from the observation, would be, that being a question of fact, and not of law, it was for the jury to decide whether the company was guilty of negligence in this particular. They had the fact before them, to make some use of, and were left to guess in what way it should be applied. Apart from this consideration, however, we are of opinion that as the matter stands on the record, having regard to the question asked, the want of an offer as to purpose, and the objection stated, the objection should have prevailed. In so holding we do not overlook the rule, so repeatedly recognized, that where evidence is pertinent for any purpose, its admission is not error. This rule applies only where the objection made was general. Here it was specific.

The thirtieth assignment complains that the count’s charge ■was inadequate and unfair on the question of damages, in that while reference was made to the testimony of each of the plaintiff’s witnesses, in relation to the earning capacity of plaintiff’s husband, no reference whatever was made to the testimony on this point by the defendant’s witnesses. The examination of the. court’s charge shows this statement to be entirely'Correct. The deceased had been a puddler employed at the Cambria Steel Works, and his employment there had continued 'thirteen or fourteen years. The two witnesses 'called by the plaintiff, neither of whom can be supposed to have any more 'accurate knowledge on the subject than the witness for defendant, testified that he was accustomed to receive from IT0.00 to $80.00 per month in wages. The witness called by the defendant was the time officer of the company that employed the deceased. He testified that for the year 1903, the year immediately preceding the accident, the deceased had received in wages the sum of §640.02, and for the year preceding that, the sum of §663.94. Here was a marked difference, not attempted to be explained, yet no reference whatever to it in the charge, but specific reference to the evidence which fixed the yearly earnings at a sum in excess by §300, or nearly so, of the amount testified to by defendant’s witness. The general effect of the charge on this branch of the case, in wholly ignoring the testimony for the defendant, and calling attention to the testimony for the plaintiff, would most likely be to create the impression in the minds of the jury, that the testimony referred to was conclusive on the subject. Their attention was called to no other. It was not simply an inadequate presentation of the evidence on an important feature of the case, but is fairly open to the criticism, that it was one-sided as well.

We express no opinion on the amount of the verdict; that was exclusively for the jury. What we do say is, that we cannot be made certain that it would have been the same, had the evidence on this point been adequately and fairly commented upon and submitted by the court. This assignment is sustained.

There is nothing in the case that called for the instruction given by the court, as to the law governing cases where one lawfully in position of danger, is injured in attempting to escape. Plaintiff’s husband was killed in consequence of his getting on the tracks, not as a result of an effort to get off.

There were enough questions in the case to engage the serious attention of the jury without importing others that were without relevancy. This of itself might not constitute reversible error; but when followed by an express direction to the jury, as was the case here, to pass upon it, that is, upon a question of fact absolutely without support in the evidence, the error becomes of too serious import to pass by with simply a word of disapproval. The thirty-first assignment is sustained.

For reasons thus stated, the judgment is reversed and a venire de novo awarded.