author: Mr. Justice Brown,

text:
    Bovaird & Seyfang Manufacturing Company v. Ferguson, Appellant.

      Practice, C. P. — Summons—Alias summons — Pluries summons — Statute of limitations.

    Where a summons in assumpsit on promissory notes is issued within six years from the maturity of the note, and returned non est inventus, and an alias summons is issued within six years from the return of the original summons, and is also returned non est inventus, and a pluries summons is issued and returned served after the expiration of six years from the return day of the original process, but within six years from the return of the alias the action is not barred by the statute of limitations.
    In such a case when the alias summons was returned unserved, the original process was continued, but not for a longer period from the return of the alias than the cause of action would have continued if the original summons had not been issued. Neither the issue of the alias summons nor the pluries summons constituted a new suit.
    A creditor is not bound to resort to any particular jurisdiction to sue his debtor. While he must bring his suit within the statutory period, he can sue wherever he pleases, taking, of course, the chance of finding the debtor and having him served with the process.
    Where a suit is brought in the domicile of a cx-editor, and is kept alive by the issue of alias and pluries summonses properly returned, the debtor cannot complain that for ten years prior to the issue of the pluries summons, the creditor knew that he had lived in another county.

      Affidavit of defense — Promissory notes — Practice—Payment.
    In an action upon promissory notes an affidavit of defense is sufficient which avers that the defendant was employed by another person to drill oil and gas wells; that in the pi'osecution of this work defendant needed certain materials and supplies; that the plaintiff refused to sell the defendant such supplies, but did sell them on the faith an'd credit of his employer, who was to pay for them deducting them from defendant’s compensation; that the notes were accepted by the plaintiff with full knowledge of this arrangement, and that defendant believed and understood they had been subsequently paid in accordance with the agreement.
    Argued Oct. 31, 1905.
    Appeal, No. 170, Oct. T., 1905, by-defendant, from order of C. P. No. 3, Allegheny Co., May T., 1898, No. 215, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Bovaird & Seyfang Manufacturing Company v. J. D. Ferguson.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      Assumpsit on a promissory note.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts appear by the opinion of the Supreme Court.

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

      T. S. Brown, of Brown Stewart, and I). B. Taylor, of Jack £ Taylor, for appellant.
    The affidavit of defense shows a course of conduct by the plaintiff in the treatment of its claim against the defendant which should, in justice and equity, bar it, the plaintiff, from any further assistance of any court in the enforcement of this claim against the defendant: Cope v. Humphreys, 14 S. & R. 15 ; Summerville v. Holliday, 1 Watts, 507-515; Gregory v. Commonwealth, 121 Pa. 611; Reed v. Reed, 46 Pa. 239 ; Foulk v. Brown, 2 Watts, 209 ; 1 Wood on Limitations, 50 ; Suter v. Sheeler, 22 Pa. 308.
    In equity jurisprudence it has always been a recognized principle that the welfare of society requires the discouragement of stale claims, and that a suitor who sleeps on his rights shall not have the aid of that court: Smith v. Clay, Ambler, 645 ; Waring v. Penna. R. R. Co., 176 Pa. 172 ; Neel v. McElhenny, 189 Pa. 489 ; Biddle v. Girard Nat. Bank, 109 Pa. 349; VanLoon v. Smith, 103 Pa. 238; Hemphill v. McClimans, 24 Pa. 367 ; Grier v. Northern Assurance Co., 183 Pa. 334; Erie City Iron Works v. Barber, 102 Pa. 156 ; Wright v. Hart, 44 Pa. 454; Johnston v. Standard Mining Co., 148 U. S. 360 (13 Sup. Ct. Repr. 585) ; Willard v. Wood, 164 U. S. 502 (17 Sup. Ct. Repr. 176) ; Moore v. Blake, 1 Ball & Beatty, 62.

      Walter P. Rainbow, with him John B. Chapman, for appellee.
    The statute of limitations is tolled immediately upon the return, by the sheriff, of the original writ, whether it be returned served or non est inventus or nihil habet, and any further delay by plaintiff in the prosecution of his claim is not affected by the statute of limitations, but is a presumption of abandonment of the suit: Biddle v. Girard Nat. Bank, 109 Pa. 349; Hemphill v. McClimans, 24 Pa. 367; Bell’s Appeal, 115 Pa. 88 ; Waring v. Penna. R. R. Co., 176 Pa. 172; Hillside Coal & Iron Co. v. Heermans, 191 Pa. 116.
    May 14, 1906:
   Opinion by

Mr. Justice Brown,

The notes upon which this suit was brought matured in December, 1898, and January, 1894. The summons was issued March 14, 1898, and was returned n. e. i. On March 4, 1904, an alias summons was issued, to which there was the same return. On March 27, 1905, a pluries summons was issued, which was returned served. One of the contentions of the appellant is that, as this last summons was not issued and served within six years from the return day of the original process, the action is barred by the statute of limitations.

When the original summons was issued the statute had not run against the plaintiff’s claim. The institution of the suit tolled it, and the continuance of the suit continued the tolling. If the suit had been abandoned at any time after the expiration of six years from the time the cause of action arose, the statute would have become a bar. The institution of an independent second suit would have been an abandonment of this one, and if such suit had been instituted after six years had expired from the maturity of the notes, the statute would have barred a recovery in it; but no new suit was instituted and the present one was never abandoned. It was continued in the only way it could have been continued to keep on tolling the statute after the sheriff liad failed to find the defendant, and that was by issuing an alias summons. This alias was not the inception of a new suit, but a continuance of the original process, tolling the statute. “ Instead of being the inception of a fresh suit an alias or pluries is, at the common law, but a continuance of the process; and there is no reason why it should not be so here where the capias or summons is the originating writ. It was held to be strictly so in Sehlosser v. Lesher, 1 Dali. 411, where to a plea of the statute of limitations, the plaintiff successfully replied an original summons on a particular day within the six years; which he could not have done, had not the action been commenced by such original, and continued by the further process without break or interval: ” Lynn v. McMillen, 3 P. & W. 170. “ The action begins, not with the date of the prmcipe, but with the issue of the summons or capias. Its commencement is not postponed to the time when service of the writ is effected. Nor is it necessary that the writ whose issuance is the beginning of the action should be served at all. But it must be returned non est inventus or nihil habet, or otherwise; if not so returned it will be considered abandoned. When returned nihil habet or non est inventus, the action may be continued by the issue of an alias, or, after an alias, by a pluries writ. But the alias writ must issue within six years of the issue of the original writ, else it will be considered, so far as the statute of limitations is concerned, as the commencement of the action: ” Trickett’s Penna. Law of Limitations, 227. “ The institution of the alias summons lifted away or tolled the bar of the statute of limitations. The alias suit was instituted within six years of the first, that is to say, about five years after the first summons. The first summons was not served, the second was. The second suit was for the same cause, was entitled an alias, and so marked on the record; and this, as it has been held, is so connected and linked with the first as to be a continuation or reiteration of the original, and so indissolubly connected as to be one; and that, so far as the statute is concerned, it stops running from the institution of the first process. We will not say that the demand might not be barred, if the plaintiff delayed six years before issuing his alias. That will be a question not presented here: ” McClurg v. Fryer & Anderson, 15 Pa. 293.

When the alias summons was returned unserved, the original process was continued, but not for a longer period from the return of the alias than the cause of action would have continued if the original summons had not been issued. Before such a period had expired the plaintiff, on March 27, 1905 — a little more than a year from the date of the return to the alias — procured the pluries summons to be issued. This was but an alias writ and is called pluries simply to distinguish it from the first alias. Each was but a continuance of the original summons, which had preserved the life of plaintiff’s claim from March 14, 1898. At the expiration of six years from that date the claim would have expired, if what had continued its life had not also been continued. Before the claim did so expire it was prolonged by the continued process of the law, and when it was in existence on March 27, 1905, it was still further continued by the pluries writ. That this was the effect of that writ has never before been questioned. In Hudson v. Carey, 11 S. & R. 10, Hudson, the defendant in the court below, when asked to pay his promissory note, which had matured in June, 1812, replied to the plaintiff that he owed him nothing, as he had been discharged as an insolvent under the state’s insolvent act, which this court, in 1817, in Farmers’ & Mechanics’ Bank v. Smith, 3 S. & R. 63, had declared to be constitutional and valid. In 1821, this was reversed by the supreme court of the United States : Farmers’ & Mechanics’ Bank v. Smith, 19 U. S. 131. Carey, the plaintiff, thereupon brought suit on the note held by him and insisted that his cause of action, which had arisen in June, 1812, was not barred, because the supreme court of the United States had not decided until 1821 that Hudson’s discharge was invalid. In answer to this Tixghman, C. J., said: “ The courts were never shut one moment against the plaintiff; it was known that the judgment of this court, in the case of the Farmers’ & Mechanics’ Bank v. Smith, was carried to the supreme court of the United States, by writ of error, so that the constitutionality of the insolvent act was not finally decided; the plaintiff might have pursued the same course, if judgment had been given against him; or, in order to avoid that expense, he might have issued a writ against the defendant, without having it served, and continued the process in that way, from time to time, until the supreme court of the United States had decided.” If process can be continued from time to time by deliberately not having an alias or pluries writ served, a fortiori it ought to be continued when a plaintiff tries to have it served, but cannot because defendant is not to be found.

A creditor is not bound to resort to any particular jurisdiction to sue his debtor. While he must bring his suit within the statutory period, he can sue wherever he pleases, taking, of course, the chance of finding the debtor and having him served with the process. In the present case the appellant complains that, though the plaintiff knew he had lived in Indiana county since 1895, he knew nothing of this suit until he was served with the pluries summons in Allegheny county; but the plaintiff was not required to go to Indiana county to sue for its money. It brought its suit presumably at its own residence, at any rate, where it was its right to sue, and if the defendant was caught by the process, issued within the statutory period and kept alive, he is as much bound by the same as if he had been sued in his own domicile within six years from the maturity of his notes. If he really owes them, it was rather for him to look up his creditor, and he cannot complain that it remained at home and brought its suit there, keeping it alive until he was found by the process server.

But for an utter misapprehension of what was decided in Curcier’s Estate, 28 Pa. 261, due, no doubt, to what appears in the syllabus of that case, which is repeated in Troubat & Haley’s Practice, sec. 1630, the position assumed by the appellant would hardly have been taken. All that was decided in that case was that an alias writ issued in 1851 was too late to keep alive a suit brought in 1836 — fifteen years before — in which the summons had not been served. The language of Black, C. J., is: “ The question is not whether a summons returned non est inventus is to be regarded as the commencement of the action when it is followed in a short time afterwards with an alias which is actually served; but whether the statute is tolled by a writ not executed though there be an interval of fifteen years between it and the alias. If a party can lie by in such a case for fifteen years, he may do so for an indefinite time.” The misunderstanding by the reporter of what the case decides is equaled only by what appears in Troubat & Haley’s Practice, supra, and it is well that now, after fifty years, an opportunity has been given to correct an impression that the syllabus of the case seems to have made.

The question of the appellee’s laches in prosecuting its suit is not in the case. It brought the suit within time, and on March 29, 1905, within two days from the time the pluries summons was served, the defendant was notified that the plaintiff’s statement had been filed. An affidavit of defense was filed on April 11,1905. On the 20th of that month a rule was taken for judgment, and on July 28, following, it was entered for the insufficiency of the affidavit of defense. The case is one of more than usual expedition by the plaintiff after it succeeded in getting the defendant into court.

The affidavit of defense avers that at the time the indebtedness was contracted for which the notes in suit were given, the defendant was engaged in the business of an oil well driller, and was employed in that capacity by P. E. Calhoun, the payee in the notes, to drill oil and gas wells for him; that to enable defendant to prosecute the work it was necessary to purchase certain materials and supplies, which he did, from the plaintiff, then, as now, a dealer in them; that the defendant being without property or credit, the plaintiff refused to sell the goods to him, but agreed to and did sell them upon the faith and credit of said Calhoun, under an agreement that he, the said Calhoun, should pay for the materials and supplies and deduct the amount due for them from the compensation to be paid by him to defendant in the course of his said employment, all of which was known, understood and agreed to by the then general manager of the plaintiff; that the notes in suit were given in pursuance of such arrangement; that the said Calhoun did, from time to time, deduct from the compensation due defendant, the full amount of the said obligations, and defendant believes and understands that Calhoun has settled his indebtedness with the plaintiff. This affidavit was sufficient to prevent judgment. In view of its allegations, which it must be assumed will be supported by proofs, the burden will be upon the plaintiff to show not only that the notes have not been paid, but why they were not paid to it by Calhoun in pursuance of the agreement set forth in the affidavit of defense.

Judgment reversed and procedendo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    Delahunt v. United Telephone & Telegraph Company, Appellant.

      Negligence — Telephone companies — Electric shock — Evidence—Burden of proof — Bes ipsa loquitur.

    In an action to recover damages for the death of a person killed by an electric current from a telephone on his premises, the rule res ipsa loquitur applies, and this notwithstanding the fact that the deadly current was not generated by the telephone company.
    Though the wire which connects with a telephone is intended to conduct only a harmless current of electricity, the telephone company is bound to know, that it can become the conductor of a deadly one, and that such a current will pass over it, if it is not properly insulated and should come in contact with a wire heavily and dangerously charged. It is as much the duty of the telephone company to see that no such current shall thus pass over its wires as it is to send only a harmless one from its own exchange.
    It is the duty of a telephone company to its patrons to exercise at all times the highest degree of care and vigilance to protect them from a dangerous electric current over its wires from any source. This is the implied undertaking of every such company, and in towns and cities threaded with dangerous electric wires the duty of the company is, by constant supervision of its wires, to prevent their becoming conductors of a dangerous current from others. When they do become conductors of it, there is reasonable evidence that there has been a neglect of duty, and the burden is cast upon the telephone company of showing that it has not been negligent. As it is not an insurer of its patrons against the danger of electric currents on its wires, the law will not hold it responsible for what it cannot help; but when there is an accident which in itself affords reasonable evidence of negligence, it must show why it should be relieved from liability.
    In an action against a telephone company to recover damages for death of plaintiffs’ father, it appeared that the deceased had been a patron of the defendant, and that some time prior to his death his telephone had been disconnected. About three weeks prior to the accident the deceased received a letter from the company stating that his ’phone would be “connected at the earliest possible moment.” On the evening of the accident a sound resembling the noise made by a cricket came from the direction of the telephone. The deceased said, “I believe that is the ’phone; I wonder if it is in use.” He then got up, walked over to it, and took the metal transmitter down while standing on a wet carpet and was almost instantly killed by an electric shock. Held, (1) that the case came within the rule res ipsa loquitur, and that plaintiffs were not required in the first instance to prove more than that their father was killed by an electric shock in using the instrument which, with its connections, the defendant had furnished to him, as one of its subscribers; (2) that the evidence was not sufficient to sustain a ruling of the court that the deceased had been guilty of contributory negligence.

      Negligence — Damages—Parent and child.

    Where, in an action by children to recover damages for the death of their father, it appears that one of the plaintiffs is a deaf mute about seven years of age, a judgment for the plaintiffs will not be reversed because of a remark made by the trial judge to the effect that the father might have been liable to contribute more to such child’s support “than he ordinarily would,” where it also appears that the jury were distinctly instructed in language that they could not have misunderstood, that if the appellees were entitled to recover, the amount of the verdict would have to be limited to compensation to them for loss of what they could have expected from their father for their support and education while in their minority, during which period he would have been entitled to their earnings.

      Practice, C. P. — Trial—-Evidence—Testimony taken at former trial. It is within the discretion of the court to permit the testimony of a witness, taken at a former trial of the case, to be offered, upon proof of the effort that had been made to subpoena the witness.
    Argued Feb. 5, 1906.
    Appeal, No. 142, Jan. T., 1905, by-defendant, from judgment of C. P. Delaware Co., March T., 1903, No. 63, on verdict for plaintiffs in case of Edward N. Delahunt and Margaret L. Delahunt by their next friend, Mary G. Lenny, v. United Telephone & Telegraph Company.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s father. Before Ralston, J., specially presiding.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    At the trial Mary G. Lenny was asked this question:
    “ Q. How is Margaret as to being in possession of all her faculties ? ”
    Mr. Geary: That is objected to. It is not a question of the child’s condition.
    The Court: The child’s condition might be such as to make the father liable to contribute more to it than he ordinarily would. The objection is overruled.
    Exceptions noted for defendant. [1]
    The court admitted under objection the letter from defendant’s manager, to Thomas F. Delahunt, quoted in the opinion of the Supreme Court. [2]
    The court also admitted under objection the testimony of James Mullen taken at a former trial of the case. [3, 4]
    The court charged in part as follows :
    [The deceased, it appears, took hold of the telephone, either to use it, or for some purpose, and under the ruling of the court that was a thing he had a perfect right to do. This defendant company having supplied him with a telephone for his use, he had a right to believe that they would supply him with an instrument which would be perfectly safe to use in the ordinary way, and consequently having been injured in taking hold of the telephone the court has held, and instructs you, that that is sufficient evidence, when uncontradicted, of the negligence of the defendant.] [6]

      [It has been urged upon you by the defendant’s counsel that the deceased, the father of the plaintiffs, was guilty of contributory negligence. If he was, if his own negligence contributed in any way to the accident, these children cannot recover. The contributory negligence alleged is that having heard a sound, or clicking, which'one of the witnesses described as resembling the noise of a cricket, he ought not to have touched the telephone. You will consider whether that testimony shows that there was anything which occurred that night to put him on his guard or warn him that it was dangerous for him to touch that telephone. Both of the witnesses said they heard this noise and that he went over and took hold of the speaking transmitter and pulled it down, and the injury happened immediately after. What had occurred to warn him that that was a dangerous thing to do ? In order to use the transmitter it would be necessary for him to pull it down to a height that would enable him to speak into it. The fact that the floor was wet you will consider; you will consider whether there was anything which would cause a reasonable man to suppose that he might not use that telephone in the ordinary way, and if there was nothing to so warn him and put him on his guard he would not be guilty of any contributory negligence.] [7]
    Verdict and judgment for plaintiffs for f>10,175.89. Defendant appealed.

      Errors assigned among others were (1-4) rulings on evidence, quoting the bill of exception; (6, 7) above instructions, quoting them.

      A. B. Greary and Joseph E. EinJcson, for appellant.
    The doctrine of res ipsa loquitur does not apply in this case.
    The appellees having alleged certain negligent acts were bound to prove them.
    The question of negligence is always for the jury and the court should not have given binding instructions against appellant: Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540; Devlin v. Beacon Light Co., 198 Pa. 588; Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Ryder v. Jacobs, 182 Pa. 624 ; Wilkinson Mfg. Co. v. Welde, 196 Pa, 508 ; Wiest v. Electric Traction Co., 200 Pa. 148 ; Noonan v. Pardee, 200 Pa. 474 ; Ubelmann v. American Ice Co., 209 Pa. 398.
    May 14, 1906:
    Decedent was guilty of contributory negligence : Alexander v. Nanticoke Light Co., 209 Pa. 571; Lehigh Valley R. R. v. Greiner, 113 Pa. 600; Oil City Fuel Supply Co. v. Boundy, 122 Pa. 449 ; Mattimore v. Erie, 144 Pa. 14.
    Testimony as to condition of one of the children was not admissible and the rulings of the court that the father might be liable to contribute to the support of the children were erroneous : Mansfield Coal Co. v. McEnery, 91 Pa. 185; Penna. R. R. Co. v. Butler, 57 Pa. 335; McHugh v. Schlosser, 159 Pa. 480.
    The letter of the manager of the appellant written three weeks before the accident should not have been admitted in evidence.

      O. B. Dickinson, with him John B. McDonough, for appellees.
    - — The facts and circumstances or the res may in themselves fairly justify a reasonable inference of negligence, and are therefore ipso facto evidence of negligence sufficiently strong to justify the trier of the fact in finding negligence.
    Of this the cases of the falling of articles upon the highway are illustrations.
    The falling of cinders: Lowery v. Manhattan Ry. Co., 99 N. Y. 158 (1 N. E. Repr. 608).
    The falling of a bolt: Volkmar v. Ry. Co., 134 N. Y. 418 (31 N. E. Repr. 870).
    The dropping of telegraph wires: Thomas v. Western Union Telegraph Co., 100 Mass. 156 ; Penna. Tel. Co. v. Varnau, 15 Atl. Repr. 624.
    Articles falling from windows : Byrne v. Boadle, 2 Hurlst. & C. 722; Scott v. London, etc., Docks Co., 3 Hurlst. & C. 596.
    Falling bricks: Kearney v. Ry. Co. L. R., 5 Q. B. 411; Sheridan v. Foley, 58 N. J. Law, 230 (33 Atl. Repr. 484).
   Opinion by

Mr. Justice Brown,

The father of the appellees was a patron of the appellant. During the month of February, 1902, there was a severe storm, and the connection of his telephone with the exchange was broken. This disconnection continued for some weeks, and, according to the theory of the appellant, which seems to be accepted as correct, the telephone was not connected with the exchange at the time the decedent was shocked to death in taking hold of the transmitter. The allegation of the appellees, as set forth in their statement, is that the appellant, “ by its careless and negligent management of its wire system permitted one of its wires, which was not properly insulated, to come in contact with the wires of another company, heavily charged with electricity, whereby the said electric current was conveyed to the said telephone of said Thomas F. Delahunt when he was making proper and lawful use thereof, whereby by reason of the premises and the negligence of the said defendant company he received a heavy shock of electricity and was thereby then and there killed.”

During the disconnection of decedent’s telephone with the exchange he received a letter from the manager of the company, which was properly admitted in evidence by the court, and of which the following is a copy:

“ United Telephone & Telegraph Company, “Chester, March 18, 1902.

“Me. Thomas F. Delahunt,

“ 21st and Edgmont Avenue,

“ Chester, Pa.

“ Dear Sir:—

“ I regret to hear you have been among the unfortunate subscribers living along Edgmont avenue, and assure you we are making every possible effort to get you back into service, and hope to do so by the last of this week or the first of next. I will gladly make your ’phone one of special importance and get you connected at the earliest possible moment. We are going to renew your service up Walnut street, thus explaining the seeming neglect of that part of the city.

“ Yours very truly,

“W. P. Hull, Manager.”

On the evening of April 9, 1902, a sound resembling the noise made bjr a cricket came from the direction of the telephone, and the deceased said “ I believe that is the ’phone. I wonder if it is in use.” He then got up, walked over to it and took hold of the transmitter with both hands, drawing it down. As he did so there was a flash of flame all around the telephone, and he was almost instantly killed by an electric shock. After the appellees had shown this they were about to prove the specific negligence charged against the appellant, when the learned trial judge, evidently of opinion that the case came within the rule res ipsa loquitur, told them that it was not necessary to do so, and that the testimony which they proposed to offer might be admissible in rebuttal, if the defendant should show it had exercised proper care. It offered no testimony, and on this appeal from the judgment on the verdict against it the important and main question is the correctness of the ruling of the trial judge that the plaintiffs were not required in the first instance, to prove more than that their father was killed by an electric shock in using the instrument which, with its connections, the appellant had furnished to him as one of its subscribers. This ruling was made on the authority of Alexander v. Nanticoke Light Co., 209 Pa. 571.

Electricity is the agent by which telephones become the means of communication from one point to another, and it may be conceded, as the appellant contends, that the current needed for their use is not a dangerous one. In this case it may be still further conceded that the current with which the deceased came in contact did not come from the exchange of the appellant; but at the same time it cannot be questioned that it came over one of its wires leading to the telephone of one of its patrons. Though this wire was intended to conduct only a harmless current the appellant was bound to know that it could become the conductor of a deadly one, and that such a current would pass over it, if it was not properly insulated and should come in contact with a wire heavily and dangerously charged. It was, therefore, as much the duty of the company to see that no such current should thus pass over its wires as it was to send only a harmless one from its own exchange. Its duty to its patrons was to exercise at all times the highest degree of care and vigilance to protect them from a dangerous electric current over its wires from any source. This is the implied undertaking of every telephone company, and in towns and cities threaded with dangerous electric wires the duty of the company is, by constant supervision of its wires, to prevent their becoming conductors of a dangerous current from others. When they do become conductors of it, there is reasonable evidence that there has been a neglect of duty, and the burden is cast upon the telephone company of showing that it had not been negligent. As it is not an insurer of its patrons against the danger of electric currents on its wires, the law will not hold it responsible for what it cannot help and for what may happen in spite of its exercise of the care and vigilance required of it; but when, as here, there is an accident, which in itself affords reasonable.evidence of negligence, it must show why it should be relieved from liability. The rule upon this subject, as laid down in Scott v. London, etc., Docks Co., 3 Hurlst. & C. 596, is “ Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanations by the defendants, that the accident arose from want of care.” This rule, reannounced in Oil Co. v. Penna. Torpedo Co., 190 Pa. 350, is not stretched in applying it to the present case.

By a number of assignments of error we are asked to say that the court erred in not directing a verdict for the defendant on the ground of the contributory negligence of the deceased. Counsel for appellant very properly state that the current of electricity necessary to operate a telephone will injure no one. The deceased knew this, and, of course, felt that his telephone was as harmless as it was useful, and there was no reason why he should have hesitated to take hold of the transmitter. He had been notified by the manager of the company that the connection of his telephone with the exchange would be established “ at the earliest possible moment,” and when he heard the noise coming from it, he evidently thought it had been connected, for he said, “I believe that is the ’phone.” In then getting up, walking over to it and taking hold of the transmitter, he did just about what anybody else would have done under the circumstances; but because he happened to stand on a wet carpet and the transmitter was made of metal, it seems to be seriously contended that he was guilty of negligence, and that the court ought to have so instructed the jury. If the current of electricity needed for telephones were dangerous, consideration might possibly be given to this proposition; but it cannot be so dignified under the facts in the present case. In submitting the question of the contributory negligence of the deceased to the jury, the appellant was given a chance to escape, of which the appellees might fairly have complained, if the finding had been against them. The assignments of the appellant relating to this feature of the case are all overruled.

One of the appellees, a daughter of the deceased, is a deaf mute, who was about seven years of age at the time of her father’s death. In allowing her condition to be made known to the jury, the learned trial judge stated that, in view of it, the father might have been liable to contribute more to her support “ than he ordinarily would.” This remark was true as a matter of fact, and as a legal proposition, did no harm to the appellant, for the jury were distinctly instructed in language that they could not have misunderstood, that if the appellees were entitled to recover, the amount of the verdict would have to be limited to compensation to them for loss of what they could have expected from their father for their support and education while in their minority, during which period he would have been entitled to their earnings.

When the testimony of James Mullen, taken at a former trial of the case, was offered, objection was made that it had not been proven that proper effort had been made to secure the attendance of the absent witness. This was a matter for the court below, with the proof before it of the effort that had been made to subpoena the witness, and no error was committed in admitting the testimony. Of the assignments relating to the charge of the court and the refusal to affirm defendant’s points, nothing need be said, except that they are all overruled.

If the verdict was excessive, it was for the court below to correct it. It is not so manifestly unjust as to call for our interference with it.

Judgment affirmed.


text:
    Reading v. United Traction Company, Appellant.

      Street railways — Municipalities—Duty to pave streets.

    A street railway company is bound to keep the portions of streets occupied by its right of way in good condition, even in the absence of any express contract or statutory direction to that effect.
    In an action by a city against a street railway company to recover the cost of paving a portion of a street with asphalt, the city cannot recover unless the jury find (1) that the repairs made by the city were necessary and proper; (2) that the defendant had been notified by the city to repair the tracks by paving them with asphalt, and (3) that the repairing by asphalting was reasonable, necessary and proper, taking into consideration the condition of the rest of the street, and the condition in which the city was about to place it.
    Argued Feb. 26, 1906.
    Appeal, No. 294, Jan. T., 1905, by defendant, from judgment of O. P. Berks Co., Sept. T., 1902, No. 16, on verdict for plaintiff in case of city of Reading
    v. United Traction Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Assumpsit to recover the cost of paving streets. Before Endlich, J.
    The opinion of the Supreme Court states the case.
    The court charged in part as follows :
    [Were the spaces between the tracks of the traction company upon the streets that have been referred to here or upon any of them out of repair, so that they required repair, that repairs were at the time necessary? That is the first question which you will have to pass upon. I may say that there are a number of these streets, in fact there are nine stretches that are spoken of here as to each of which the plaintiff claims that the condition was such as to require repairs at the time, and asks for a verdict covering the amount that was spent by the city upon those stretches. There is Bingaman street from Canal to Sixth; there is Eighth street from Chestnut to Penn; there is Ninth street from Penn to Washington ; there is Tenth street from Penn to Washington; there is Eighth street from Penn to Washington; there is Washington from Fourth to Sixth; there is Sixth from Penn to Franklin; there is Fifth from Penn to Walnut, and there is Fifth from Pine to Laurel. There is a separate question arising under the evidence as to each of these, and upon each of them you ought to ask yourselves the question and come to a conclusion under the evidence according to the fair preponderance of it as to whether on that portion or on this portion of the various stretches that are here claimed for there was a necessity for repair or not. If there were any of these on which there was no such necessity, then you must negative that question as to those. If there were any of them as to which you find that there was a necessity, you will answer the question in the affirmative as to those.] [11]
    Then you will come to the next question: Was the defendant company, the United Traction Company, notified by the city to repair those tracks by paving them with asphalt ? You will remember, gentlemen, that the city had determined to pave these streets, those portions of them not occupied by the tracks, with asphalt, and as I have said to you, it is the business, the duty of the railway company to keep its portion of the streets in good repair in reasonable correspondence with the rest of the street. Now, was the traction company notified by the city to repair those portions of the streets by paving them with asphalt ? 1 may say to you that whether the wrnrd “ repair” was used in the notice is not a controlling question. The question is, was the traction company required to do something to those portions of the streets which were occupied by its road for the purpose of putting them in better condition ? Whether the word “repair” or the word “repave” was used in the notice is not controlling. Nor is it necessary, of course, that in that notice the company should have been specifically informed by the city that its tracks or the portions between its tracks were out of repair. The railway company had charge of that and of course knew itself what the condition of its tracks was. The point is, was the railway company given notice that the city wanted it to do something there in the way of correcting evils that existed, and did it have a fair opportunity to do it ? [12]
    [As I told you, the city had a right to determine to asphalt the streets, that is to say, its portion of them; and it then became the duty of the railway company, when notified, and if it was a fact that the portions of the street occupied by it were out of repair, to repair them in correspondence with the pavement which the city was putting on these streets. Now was it necessary, under all the circumstances, and was it proper that this repairing should be done by way of asphalting? You have heard what the testimony on that subject is. You have heard the testimony of certain experts as to the feasibility, the possibilitjq the reasonableness of the one kind of repairing or the other, whether it should be asphalt, whether it should be Belgium blocks, or a combination of both, or vitrified brick, or whether it was feasible and proper, according to approved usages and practices, to make a combination, if you may so call it, of cobblestones or hill stones and asphalt. You have heard the testimony on both sides of this question, and it will be for you to determine whether it was a reasonable thing for the city to pave these streets with asphalt, and would have been a reasonable thing to permit a repair of the spaces between the tracks by retaining the kind of pavement that was there before, or whether it was reasonable, necessary and proper to substitute in the place of that a repair by asphalting. It will be for you to say, under all the evidence, whether it was a reasonable and proper requirement for the city to put upon this railway company that in repairing that portion of the street which it occupies it should use sheet asphalt also.] [13]
    Yerdict and judgment for plaintiff for $13,727.85. Defendant appealed.

      jErrors assigned among others were (11-13) above instructions, quoting them.

      Jefferson Snyder and Q. U. Buhl, with them J. Milton Miller and B. L. Jones, for appellant.
    Wherever in any case any duty as to repairs or paving or repaving has come before the court such duty has always been asserted by this court to exist in the charter, the statute or the ordinance: Pittsburg, etc., Ry. Co. v. Birmingham, 51 Pa. 41; Phila. v. Ridge Ave. Pass. Ry., 143 Pa. 444; McKeesport Borough v. Ry. Co., 158 Pa. 447; Norristown v. Norristown Pass. Ry. Co., 148 Pa. 87; Phila. v. Pass. Ry. Co., 169 Pa. 269; Phila. v. Hestonville, etc., Pass. R. R. Co., 177 Pa. 371.
    May 14, 1906:

      Isaac Hiester, with him William I. .Rourke, for appellee.
    It seems to be settled, by an abundance of authority, that a railway company owes the public the duty of keeping in good repair that portion of the highway occupied by its tracks and sills: Pierce on Railroads, 245; Mills on Eminent Domain, sec. 198; Burritt v. City of New Haven, 42 Conn. 174; State v. Ry. Co., 38 Minn. 246 (36 N. W. Repr. 870) ; State v. Hoboken, 41 N. J. L. 71; Worcester v. Forty-second Street and Grand Street Ferry R. R. Co., 50 N. Y. 203 ; Laredo Electric & Ry. Co. v. Hamilton, 23 Tex. Civ. App. 480 (56 S. W. Repr. 998); Harrisburg v. Pass. Ry. Co., 1 Pearson, 298.
    The repairs so made must be of such a character that the portions of the street occupied by the railway will reasonably correspond with the rest of the street, having proper regard to the travel on the street: McKeesport Boro. v. Pass. Ry., 158 Pa. 447; Sioux City Street Ry. Co. v. Sioux City, 138 U. S. 98 (11 Sup. Ct. Repr. 226) ; Lincoln Street Ry. Co. v. City of Lincoln, 84 N. W. Repr. 802; Boyer v. Reading City, 151 Pa. 185.
    The city is not prevented from requiring the railway company to keep its portion of the street in good repair in reasonable correspondence with the rest of the street because the company which constructed the railway was required at that time to pave with cobblestones with or without an added requirement to keep such paving in repair: Com. v. R. R. Co., 27 Pa. 339; Johnson v. Philadelphia, 60 Pa. 445 ; Reading v. United Traction Co., 202 Pa. 571.
   Opinion by

Mr. Justice Brown,

The judgment recovered by the city of Reading against the United Traction Company was for moneys expended in doing that which, under the evidence and instructions of the court, the jury found ought to have been done by the traction company on those portions of the streets of the city occupied by it. The claim of the city is made up in part of the cost of paving with asphalt from the outside of the rails to the limit of the sills. As to this item, amounting, without interest, to $1,848.75, the court instructed the jury to find for the plaintiff, for the manifestly correct reason that the street railway companies, which leased their lines to the appellant, had “ assumed the duty of putting down asphalt pavement on the outside' of their rails to the extent of the sills whenever the city might undertake to put down asphalt on the balance of the street.” As to the remaining portion of the city’s claim — $8,292.48—which the jury found it had expended in making necessary repairs on those portions of the streets between the rails, the appellant contends that there ought not to have been a recovery, for the reason that its duty as to the space between the rails is fixed by the charters and ordinances under which its tracks were laid on the streets, and as it is not expressly required by them to repair between the rails, it is not liable for the amount expended by the city in doing so.

The streets of a city belong to the state for the use of the people at large. To the municipality, as its agent, it commits the duty of at all times keeping them in proper repair for the convenience and safety of the public. This duty of the municipality does not shift, except when it is expressly or impliedly imposed upon another. Before the adoption of our present constitution street railway companies were authorized to occupy streets without municipal consent; now they can be authorized to do so only with such consent; but, no matter how authorized, the authority under which streets are occupied, unless expressly relieving such companies from the duty of keeping in repair those portions of the streets occupied by their tracks, carries with it a liability on their part to do so. When street railway companies occupy portions of streets, such portions are no longer in the free, unencumbered and exclusive use of the public, but to the companies is given not only a concurrent, but a superior right to use them, and with this right goes a corresponding responsibility. As between a street railway company and a municipality whose streets are occupied by such a company, the duty no longer rests upon th.e municipality of keeping in repair those portions of the streets used by the company, but devolves upon the company acquiring the right to use them for its corporate purposes. When the state gives up a portion of one of its highways to a particular use, without providing that what had been the duty of the municipality as to it shall continue, such duty devolves upon the party acquiring the right to use it, and a street railway company given the right to use such portion of a street as is needed for its tracks, in taking charge of it, is charged with the duty of properly maintaining it. It is because the municipality, as the agent of the state, has charge of the streets, that it must maintain and keep them in proper repair, and when the state permits this charge, as to a portion of a street, to be committed to another, it must be understood as imposing upon such party the responsibility that formerly rested upon the municipality, unless in the grant, or in the municipal consent thereto, of the right to use a portion of the street, such responsibility is expressly withheld and its imposition continued upon the municipality.

In submitting the claim of the appellee to the jury they were instructed that the city could not recover, unless they found, first, that the repairs made by the city were necessary and proper; secondly, that the appellant had been notified by the city to repair the tracks by paving them with asphalt; and thirdly, that the repairing by asphalting was reasonable, necessary and proper, taking into consideration the condition of the rest of the street and the condition in which the city was about to place it. The findings of the jury on these three questions were in favor of the appellee.

We do not deem it needful to say more about this ease. It is clearly ruled by the general principles announced in Reading v. United Traction Co., 202 Pa. 571, as is demonstrated in the opinion of the court overruling the motion for a new trial. In that case, in affirming the judgment below, we adopted, as correctly expressive of our views, the words of the present learned trial judge, that “ It is recognized, with substantial unanimity, that a railway company, whether general or passenger, is bound to keep the portions of streets occupied by its right of way in good condition, even in the absence of any express contract or statutory direction to that effect: 2 Wood, Railroads, pp. 758, 760; Pierce, Railroads, p. 245; Mills, Em. Dom. sec. 198 ; Elliott, Roads and Streets, p. 591; Worster v. R. R. Co., 50 N. Y. 203 ; North Hudson County Ry. Co. v. Hoboken, 41 N. J. L. 71; Ry. Co. v. State, 87 Tenn. 746.”

Judgment affirmed.


author: Mr. Justice Fell,

text:
    Heilig v. Heilig, Appellant.

      Mortgage — Payment,—Satisfaction.
    A mortgage to a husband and wife recited that the grant was to secure payment of a debt to the mortgagees, with a proviso that the grant should become void when payment was made to the mortgagees, their executors, administrators or assigns. It also provided that the debt should be paid at the expiration of five years after the decease of the mortgagees, payable share and share alike to their legal heirs. After the death of the wife the husband satisfied the mortgage. Held, that he had power to do so, and that the heirs could recover nothing on it.
    Argued March 13, 1906.
    Appeal, No. 293, Jan. T., 1905, by defendant, from judgment of Superior Court, Oct. T., 1904, No. 37, reversing judgment of C. P. Lancaster Co., April T., 1901, No. 6, on verdict for defendant in case of Leonard P. Heilig et al. v. Sarah A. Heilig et al.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Appeal from Superior Court. See Heilig v. Heilig, 28 Pa. Superior Ct. 396.
    The opinion of the Supreme Court states the case.

      Error assigned was the judgment of the Superior Court.

      C. Reese Eaby, for appellant.
    The appellees in this case have no standing to recover for the reason that the mortgage was without consideration from them and was never delivered to them : Bond v. Bunting, 78 Pa. 210; Basket v. Hassell, 107 U. S. 602 (2 Sup. Ct. Repr. 415) ; Hemphill’s Estate, 180 Pa. 87; Flanagan v. Nash, 185 Pa. 41; Kidder v. Kidder, 33 Pa. 268; Trough’s Estate, 75 Pa. 115; Scott v. Lauman, 104 Pa. 593; Williams’s App., 106 Pa. 116; Campbell’s Estate, 7 Pa. 100; Scott v. Dickson, 108 Pa. 6; Appeal of Waynesburg College, 111 Pa. 130.
    The clause upon which the appellees rely provides that the money shall be paid to “ the legal heirs of Elizabeth Heilig and Jacob R. Heilig.” There could be no heirs of Elizabeth Heilig and Jacob R. Heilig until both of them were dead, for nemo haeres est viventis, and after they both died there was no mortgage, for they had received its payment in full and entered satisfaction therefor.
    May 15, 1906:
    The mortgage, so far as these claimants are concerned, was to have no effect until after the death of both Elizabeth Heilig and Jacob It. Heilig and was therefore testamentary and subject to their revocation : Turner v. Scott, 51 Pa. 126 ; Kisecker’s Est., 190 Pa. 476; Frew v. Clarke, 80 Pa. 170; Coulter v. Shelmadine, 204 Pa. 120 ; Harrison’s Est., 196 Pa. 576; Armhein v. Cope, 9 Northampton, 142.

      B. F. Davis, for appellees.
    We think this case is ruled by decisions of the Supreme Court of Pennsylvania, which have also been construed by text-book writers: Fallon Penna. Law of Conveyance, 405; Dreer v. Penna. Co. for Insurance, etc., 108 Pa. 226 ; McClaughry v. McClaughry, 121 Pa. 477 ; Guthrie v. Kerr, 85 Pa. 303.
   Opinion by

Mr. Justice Fell,

In 1888 Elizabeth Heilig and her husband, Jacob Heilig,. each owned a lot of ground which they conveyed to the same persons and took from them a mortgage to secure the purchase money of both lots. The recital in the mortgage is : Whereas the mortgagors are indebted to-Elizabeth Heilig and her husband, Jacob Heilig, parties of the second part, in the sum of $1,200 to be paid, without interest, “at the expiration of five years after the decease of the said Elizabeth and J acob Heilig, payable share and share alike to the legal heirs of said Eliza-, beth and Jacob Heilig.” The grant is made to the parties of the second part, their heirs and assigns, better to secure to them, their executors, administrators and assigns, the payment of the aforesaid debt of $1,200. It is provided that if the mortgagees “ shall well and truly pay or cause to be paid unto the party of the second part, their executors, administrators or assigns, the aforesaid debt or sum of $1,200 on the day and time hereinbefore mentioned,” etc., the estate granted shall be void.

Elizabeth Heilig died April, 1892, and in May of the same year Jacob Heilig, acting in his own right and as administrator of her estate, satisfied the mortgage. He died in 1895 and in 1901 his children caused a scire facias to be issued on the mortgage. The question at the trial was whether the satisfaction of the mortgage was valid. The learned judge of the common pleas directed a verdict for the defendants for the reason that the provision in the mortgage for payment to the heirs was a voluntary gift that could be revoked by the mortgagees jointly or by the survivor who took the whole estate, and also that it was testamentary and was revoked by the satisfaction. The judgment entered on the verdict was reversed by the Superior Court on the ground that the mortgagees had made a present gift of the sum of money named in the mortgage, which vested in their children and was irrevocable.

The controlling question in the case is whether the mortgagees had power to satisfy the mortgage. This question is to be determined by ascertaining the intention from the written instrument. The appellant’s case rests solely on the clause in the recital, “ to be paid at the expiration of five years after the decease of Elizabeth Heilig and Jacob Heilig, payable share and share alike to the legal heirs of said Elizabeth and Jacob Heilig.” This clause is inconsistent with the rest of the recital and with the grant, which is to secure payment to the mortgagees, and with the proviso that the grant shall become void when payment is made to the mortgagees, their executors, administrators or assigns. The debt is made primarily payable to the mortgagees or their legal representatives, and we do not see that any effect can be given to the clause relied on other tba.n as fixing the limit of time when the debt was demandable. So regarded, no restriction was placed on the power of the mortgagees to satisfy the mortgage.

The judgment of the Superior Court is' reversed and the judgment of the common pleas is affirmed.


author: Per Curiam,

text:
    Thomas, Appellant, v. Equitable Building & Loan Association.

      Husband and mfe — Married women — Mortgage—Purchase money mortgage —Waiver of priority of lien — Principal and agent.

    Where a married woman accepts a purchase money mortgage containing a covenant waiving the priority of lien of the mortgage in favor of a mortgage executed on the same day by the purchaser, and it appears that the transaction was the result of an agreement between the husband of the married woman, and the mortgagee, in the mortgage executed by the purchaser, and that the husband was fully authorized to act as agent for his wife in the premises, the wife will not be relieved of the covenant of waiver contained in her mortgage.
    Argued March 13, 1906.
    Appeal, No. 43, Oct. T., 1906, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 604, dismissing bill in equity in case of Margaret Thomas v. The Equitable Building & Loan Association, the Farmers’ & Mechanics’ Savings Fund & Loan Association and the Commonwealth Trust Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an account and an injunction.
    Over, J., of the orphans’ court specially presiding, filed the following opinion:
    Margaret Thomas, the plaintiff, being the owner of unimproved land in the Twenty-first ward, Pittsburg, agreed to sell a part thereof to Louisa Adams, for $8,600, $8,000 of the purchase money to be secured by mortgage on the premises. One of the purposes of making the sale was to have the property improved, and before it was consummated, David Thomas, the husband of the plaintiff, and W. L. Adams, the purchaser’s husband, arranged with the Farmers’ & Mechanics’ Savings Fund & Loan Association that it should lend Mrs. Adams $6,600, secured by mortgage on the premises, $6,000 of this sum to be paid out as the houses to be built thereon progressed. Mrs. Thomas and husband executed a deed to Mrs. Adams on April 15, 1902, and Mrs. Adams and her husband, a mortgage to Mrs. Thomas to secure the balance of the purchase money, $8,000, which contained a clause providing that the mortgage given at the same time by Mrs. Adams to the Farmers’ & Mechanics’ Savings Fund & Loan Association should be a prior lien. These papers were delivered at the same time, the mortgage to Mrs. Thomas being left with C. L. Stevenson, the attorney of the association, who did not file it for record until November 6, 1902. A contract was made b}r Mrs. Adams for the erection of three houses on this property, and the association advanced money on the Adams mortgage as the houses progressed; one of them was nearly completed when, owing to the failure to make sale of the-house and insufficiency of funds, the work stopped, and finally the Farmers’ & Mechanics’ Savings Fund & Loan Association obtained judgment and issued execution, against Mrs. Adams for the collection of the mortgage debt, purchased the property, finished the buildings, and now holds the title thereto.
    Mrs. Thomas alleges that the-association retained the mortgage given by Mrs. Adams to her with the intent to defraud her, that the clause in it giving a priority of lien to the association mortgage was fraudulently inserted without her knowledge and consent, and prays for equitable relief.
    She testified that she had no knowledge that the lien of the mortgage to her was to be postponed or was postponed to the lien of the Adams mortgage given to the association, and there is no evidence contradicting her. But there can be no doubt from the evidence that her husband agreed with the association that its mortgage should be a prior lien, and that the clause was inserted in the mortgage, given to Mrs. Thomas by Mrs. Adams, with his knowledge and consent, and it also appears clearly that he acted as agent for his wife in the whole transaction.
    As the property did not sell for enough to pay the association mortgage, no damage has resulted from the delay in recording the Adams mortgage to Mrs. Thomas, and it is not necessary, therefore, to decide whether the association is responsible for Mr. Stevenson’s delay in recording it.
    The demurrer filed by the Equitable Building & Loan Association, one of the defendants, having been sustained, the bill as to it was dismissed, and it is conceded that it should be also as to the Commonwealth Trust Company of Pittsburg, another of the defendants.
    On exceptions, Over, J., filed the following opinion:
    The equities of this case are clearly with the Farmers’ & Mechanics’ Savings Fund & Loan Association, the defendant. The plaintiff conveyed to Mrs. Adams, property for $8,600, an inflated price, taking mortgage for $8,000, fully the market value of the laud. The vendee, who was merely a figurehead in the transaction and never paid a penny on account of the purchase money, then entered into a no-lien contract with an irresponsible contractor for the erection of three houses on the lots. The purpose seems to have been to improve them at the expense of credulous material-men and subcontractors, so that the plaintiff should not in any event be liable for their claims. It was necessary, however, to have some money to carry out the project, and plaintiff’s husband, who acted as her agent in the whole transaction, undertook to raise the money by negotiating a mortgage of Mrs. Adams on the property with the defendant. The lots were then subject to prior liens and defendant’s officers would surely have been very negligent had they not required that the lien of the purchase money mortgage given by Mrs. Adams to the plaintiff should be postponed to the lien of its mortgage. As a condition precedent to making the loan, they required that it should be so postponed; the plaintiff’s husband as her agent assented to this and it was so provided in the Adams mortgage; and whilst there is no direct evidence contradicting the plaintiff’s testimony that she did not know that this provision was incorporated in the mortgage, the probabilities are she did. The defendant then advanced its money on the mortgage, Mrs. Adams’s irresponsible contractor abandoned his contract before finishing any of the houses, she was unable to complete them and the defendant to protect itself was compelled to purchase the liens prior to its mortgage, bid in the property at a sheriff’s sale, finish the houses and settle with creditors, who had filed mechanics’ liens against the buildings, at fifty per cent of their claims. At the hearing of this cause it was contended by counsel for the plaintiff that as there had been a no-lien contract for the construction of the buildings, the mechanics’ lien creditors could not collect their claims, and that therefore the payments made to them by the defendant were in fraud of plaintiff’s rights ; when in point of fact, if there was a fraud perpetrated, it was in not paying them in full. Although the mortgage to the defendant was given by Mrs. Adams, it was made and the money advanced for the plaintiff’s benefit; she was virtually the debtor; and as she did not pay the debt, and the defendant was compelled to purchase the property to protect itself, she has no legal or equitable claim to it.
    May 14, 1906:
    None of the material exceptions to the findings of fact are sustained by the evidence, and are therefore all dismissed, as well as the exceptions to the conclusions of law.

      Error assigned was the decree of the court.

      Schoyer $ Hunter, for appellant.
    An agency to deal with a wife’s separate estate will not be implied where such dealing is detrimental to the wife, and is carried on without her knowledge or consent: Saunders v. King, 119 Iowa, 291 (93 N. W. Repr. 272); Gerhab v. Ruth, 2 Pennypacker, 250; Creighton v. Keith, 16 Phila. 130 ; Bevan v. Thackara, 143 Pa. 182.
    This case is essentially different from the class of cases in which the court has inferred an agency, where the wife procured the benefit of such agency. It is the difference between the implication of an agency to preserve and create, and the implication of an agency to destroy.

      J. M. Stoner, with him G. L. Stevenson, for appellee,
    cited : Early v. Rolfe, 95 Pa. 58; Mack Paving Co. v. Young, 166 Pa. 267 ; Bauck v. Swan, 146 Pa. 444.
   Per Curiam,

Decree affirmed on the opinions of the court below.


text:
    Teller’s Estate.

      Wills — Gift to toife — Condition as to making a will — Security by wife.

    Testator directed as follows: “I give, devise and bequeath all my estate of every kind whether real or personal or mixed whatsoever or wheresoever the same may be situate, unto my devoted wife, to be hers absolutely, having full confidence that she knowing my desires and purposes will by gift during her lifetime or by testamentary writing, make such disposition thereof for charitable or other uses as will be in accordance with my wishes, it being my intention hereby not in anywise to fetter my wife in the disposition of my estate but only to make expression of my confidence in her action hereunder.” By a codicil he directed: “If my wife should die before she has made another will than that dated even date with this codicil to my will, then and in such caso I make the additional legacies and bequests.” The widow survived and executed another will than that of even date with the codicil. Held, that the widow was entitled to the whole estate without entering security, and that the devises and bequests in the codicil became inoperative.
    Argued March 20, 1906.
    Appeal, No. 15, Jan. T., 1906, by Lionel Teller Schlesinger in his own right and as Guardian of the estate of Louise Teller Schlesinger et al., from decree of O. C. Phila. Co., Oct. T., 1905, No. 208, dismissing exceptions to adjudication in Estate of Benjamin F. Teller, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The decedent by his will dated March 12, 1904, directed as follows : “ I give, devise and bequeath all my estate of every kind whether real or personal or mixed whatsoever or wheresoever the same may be situate, unto my devoted wife, Jennie Teller, to be hers absolutely, having full confidence that she knowing my desires and purposes will by gift during her lifetime or by testamentary writing, make such disposition thereof for charitable or other uses as will be in accordance with my wishes, it being my intention hereby not in any wise to fetter my wife in the disposition of my estate but only to make expression of my confidence in her action hereunder.”
    By a subsequent codicil to his will, after giving sundry pecuniary bequests he directed as follows: “If my wife should die before she has made another will than that dated even date with this codicil to my will then and in such case I make the additional legacies and bequests.”
    The widow survived the testator and executed another will than that of even date with the codicil. The auditing judge, Hanna, P. J., awarded the whole fund to the widow without requiring her to enter security.
    On exceptions Penrose, J., filed the following opinion:
    Whether the codicil disposing of the estate which the will gave to the widow of the testator in the event of her dying intestate, creates a valid executory bequest of what may remain undisposed of at her death, or whether the attempted limitation is wholly void by reason of the prior absolute gifts, is a question not to be determined until the happening of the contingency, if it should happen, for which the codicil seeks to provide. We have not the necessary parties before us; and it is a well-settled principle of jurisprudence that such questions are not to be decided in advance: Langdale v. Briggs, 8 De G., M. & G. 391; Fabian’s Estate, 18 Phila. 175; Willard’s Appeal, 65 Pa. 265; Hano’s Estate, 8 Pa. Dist. Rep. 353, and as we have not the advisory jurisdiction of the English Court of Chancery (Morton’s Estate, 201 Pa. 269), it would be a useless waste of time if we should venture to express any opinion on the subject.
    We think it clear, however, that the widow cannot be called upon to enter security for the protection of such rights, if any, as may be conferred by the codicil. The will gave her the residuary estate, absolutely, coupled, it is true, with precatory words, but coupled also with an express declaration that she was not to be fettered in her disposition of the estate given. The codicil provides that if she should die before making a will different from one already made, “ then and in such case” certain additional legacies and bequests should be given.
    It is a canon of interpretation that a clear gift by will or codicil will not be cut down by subsequent words or codicil except to the extent which, with equal clearness, is thus indicated: Whelen’s Estate, 175 Pa. 23; and here it is conceded that the widow’s right to dispose of the estate, either while she lives or by will taking effect at her death, is not reduced by the codicil. Upon what principle, then, can she bo required to enter security; and if she can be, how is the amount to be determined? Clearly, the entry of security, at all, would interfere with the free use of the property and with her power of alienation by deed, gift or will; and the decisions with regard to a life estate in articles quae ipso usu consumuntur are entirely applicable; see Randall v. Russell, 8 Merivale, 190; Westcott v. Cady, 5 Johns. Ch. Rep. 884. Even if there had been a trust for life of the widow, with power to her to dispose of the estate by deed or will, she would, under the doctrine of Bard-ford v. Street, 16 Yesey, 135, have the right to demand possession; see also Forsythe v. Forsythe, 108 Pa. 129.
    May 14, 1906:
    The exceptions to the adjudication on the ground that the award to Mrs. Teller was without requiring security are dismissed, and the adjudication confirmed absolutely.

      Error assigned was the decree of the court.

      Lionel Teller Schlesinger, for appellant.

      George P. Rich, for appellee, was not heard.
   Per Curiam,

Judgment affirmed on the opinion of Judge Penrose.


text:
    Grant, Appellant, v. Philadelphia, Baltimore & Washington Railroad Company.

      Negligence — Railroads—Death—Presumption—Evidence.
    In an action against a railroad company by parents, to recover for the death of a son, the only evidence as to the accident was that the body of the deceased was on the railroad at some little distance from a permissive crossing, and that blood marks at the crossing indicated that he had been struck there. The evidence also showed that at the point in question, he sometimes walked the tracks longitudinally to the crossing, and sometimes approached the crossing from a route not along the tracks. There was nothing to show which route he used at the time of the accident. Held, that the plaintiffs could not recover.

      Argued March 21, 1906.
    May 14, 1906:
    Appeal, No. 8, Jan. T., 1906, by plaintiffs, from judgment of O. P. No. 4, Phila. Co., March T., 1906, No. 4,092, on verdict for defendant in case of Reuben Grant and Margaret Grant v. Philadelphia, Baltimore & Washington Railroad Company.
    Before Mitchell, C. J., Fell, Bkown, Mestkezat and Stewart, JJ.
    Affirmed.
    Trespass by parents to recover damages for the death of their adult son. Before Carr, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiffs appealed.

      Error assigned was in giving binding instructions for defendant.

      Duane, Morris, Hechscher Roberts, with them Albert T. and Harry T. Bauerle, for appellant.

      John Hampton Barnes, for appellee.
   Per Curiam,

The body of the deceased was found on the railroad at some little distance from a permissive crossing, and blood marks at the crossing indicated that he had been struck there. This was all the evidence as to the accident. No witness saw it. The testimony further showed that deceased had made an engagement the previous evening to go to a house near the railroad crossing, and that his habit was to go first to his place of employment from which he might get to the place of his appointment on the other side of the tracks by either of two routes, one of which would lead him to the tracks at the crossing while the other would require a walk of some little distance along the tracks before reaching the crossing.

If deceased was walking the tracks longitudinally he was guilty of plain contributory negligence, and as the testimony was that he was in the habit of using both ways, the jury could only guess which way he took on that occasion. The plaintiffs, therefore, failed to show a case clear of contributory negligence.

Judgment affirmed.


text:
    Tasker’s Estate.

      Will — Conversion—Executors and administrators.

    Testator by Ms will directed as follows: “Knowing that a great part oí my real estate is of such a character that it should not be sold only as a market may or should open to profitably dispose of it, I order and direct that my executors shall at their option have five years to dispose of the same without loss to the estate, and if at the end of the five years it should appear to my executors that more time will be necessary to retain the whole or some part thereof that a better price may be had for the same, then I order and direct that a further term not exceeding two years from that time be allowed them, if two thirds of my heirs and executors above mentioned consent to said time being extended to sell and dispose of the same or any part thereof and to that end and purpose I hereby authorize and empower my executors hereinafter named and the survivor or survivors of them to sell and dispose of all or any part of my real estate or residue of the same either at public or private sale for the best price or prices in their judgment that can or may be obtained therefor and upon such terms and conditions as to them may seem best and to grant and convey the same to the purchaser or purchasers thereof, his, her or their heirs and assigns in fee simple, free from all liability for or on account of the application of the purchase money.” Held, that the will worked a conversion of the real estate, and that taxes and expenses paid by the executors in connection with the real estate were a proper charge against the general estate.
    Argued March 21, 1906.
    Appeal, No. 83, Jan. T., 1906, by Mary Etta Clark, from decree of O. O. Phila. Co., Jan. T., 1894, No. 325, dismissing exception to readjudication in Estate of Thomas T. Tasker, Sr., deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Exceptions to readjudication.
    From the record it appeared that testator by his will dated March 29, 1890, and probated February 9,1892, directed, inter alia, as follows:
    “ Item: Knowing that a great part of my real estate is of such a character that it should not be sold only as a market may or should open to profitably dispose of it, I order and direct that my executors shall, at their option have five years to sell and dispose of the same without loss to the estate, and if at the end of the five years it should appear to my executors that more time will be necessary to retain the whole or some part thereof that a better price may be had for the same then I order and direct that a further term not exceeding two years from the time be allowed them if two-thirds of my heirs or executors above mentioned consent to said time being extended to sell and dispose of the same or any part thereof and to that end and purpose I hereby authorize and empower my executors hereinafter named and the survivor or survivors of them to sell and dispose of all or any part of my real estate or residue of the same either at public or private sale for the best price or prices in their judgment that can or may be obtained therefor and upon such terms and conditions as to them may seem best and to grant and convey the same to the purchaser or purchasers thereof, his, her or their heirs and assigns in fee simple, free from all liability for or on account of the application of the purchase money.”
    After testator’s death considerable sums of money were paid by the executors on account of taxes and expenses on lands in West Virginia. Various proceedings were had relating to the claim for these credits, and finally on exceptions to readjudication Hanna, P. J., filed the following opinion:
    In accordance with the opinion of the court, Tasker’s Estate, 14 District Rep. 435, the account of the dead executor stated by. his executor was recommitted to the auditing judge for reaudit and readjudication. The most important question that arises is whether an equitable conversion is effected by the language of the will. Upon this depends the propriety of the allowance, as credits to the executor of payments made by him in connection with certain real estate in West Virginia believed both by testator and his son, one of the executors, to be owned by him. The auditing judge was of opinion that a conversion resulted from the provisions of the will and therefore the expenditures by the executor are proper charges against the estate. At the argument of the exceptions to this conclusion, the main subject of contention was that the expenditures were unnecessary and excessive, and consequently little attention was directed to the question of conversion. The court, not being furnished with a copy of the will, was led, from the references to it in the adjudication, to reach a conclusion contrary to that of the auditing judge; that an equitable conversion did not take place.; that the credits referred to should not be allowed and consequently the exceptions to their allowance were sustained. Subsequently, however, the attention of the court was called to the entire contents of the will. And upon motion of counsel for the executor of the dead executor, in an informal manner it is true, and as if an application for a reargument had been made, granted, the auditing judge was authorized to hear and determine the question, together with other subjects of exception de novo. The readjudication has accordingly been filed wherein the auditing judge adheres to his former opinion, and exceptions thereto are again before the court.
    The testator, inter alia, directed his executor to pay certain legacies and annuities and then bequeathed and devised all the residue of his estate to his six children nominatim in equal shares absolutely. He was the owner of both real and personal estate. That testator had in contemplation a sale of his real estate, notwithstanding the devises and bequests to his children, is evident from the succeeding item of his will as follows:
    “ Knowing that a great part of my real estate is of such a character that it should not be sold only as a market may or should open to profitably dispose of it, I order and direct that my executors shall at their option have five years to sell and dispose of the same without loss to the estate.”
    This language indicates that while testator had in mind a sale by the executors immediately after his death, if they deemed it for the best interest and advantage of the estate, he also intended to give them power to postpone such sale or sales for a period not exceeding five years from his death, if, in their judgment, a better price might be obtained. In other words, to select the time of sale and at what price to sell. But this postponement was not to be indefinite. The executors might delay for five years, but no longer. And after the expiration of that period they might be compelled to sell in order to carry out the intention of testator: Severns’s Est., No. 2, 211 Pa. 68.
    Testator gave the executors the further power of election in the same item of his will, viz: “ And if at the end of said five years it should appear to my executors that more time will be necessary to retain the whole or some part thereof that a better price may be had for the same, then I order and direct that a further term not exceeding two years from that time bo allowed them if two-thirds of my heirs or executors above named shall consent to said time being extended to sell and dispose of the same or any part thereof.”
    Here again is but an extension 'of time within which the executors should carry out the original intention of testator that his real estate be sold at such time and for such price as they deem most desirable and advantageous.
    And finally, he further says: “ And to that end and purpose I hereby authorize and empower my executors hereinafter named and the survivor or survivors of them to sell and dispose of all or any part of my real estate or the residue of the same either at public or private sale for the best price or prices in their judgment that can or may be obtained therefor,” etc.
    This latter clause in no wise interferes with or is inconsistent with the' prior clause of the will disclosing the intention of testator respecting the sale of all his real estate either immediately or within a reasonable time after his death or within five years thereafter at the option of the executors, or during further term of two years if two-thirds of all the parties interested agree thereto. The whole language of the will is as if testator bad said: “ I direct my executors to sell all or any part of my real estate immediately after my death. But if they think a delay advantageous to my estate, they may postpone the sale for a period not exceeding five years after my death. And if at the expiration of this period two-thirds of all the parties interested agree upon a further extension of time within which to make sale, then my executors shall be allowed an additional period of two years to sell all or any part of my real estate.”
    Furthermore, if the last two clauses of the will had been transposed in their order, much of the doubt arising would not have existed. The last clause refers to the sale of the real estate following the residuary clause. If it had preceded the latter, the general form adopted, it would be observed that the final thought of testator was to give to his children “ all the rest, residue and remainder of my estate, real, personal and mixed, not otherwise disposed of as above mentioned.”
    Thus we think creating a common fund of his entire estate, real and personal, for the payment of legacies and annuities ; and only that which remained is bequeathed and devised to his children; thus bringing the case within the rule that where it is impossible to carry out the provisions of the will unless the real estate is sold, and where there is a blending of the real and personal estate together and it is disposed of as money, then an equitable conversion is the result and the estate is distributable as personalty and not realty: Roland v. Miller, 100 Pa. 47; Hunt’s and Lehman’s Appeals, 105 Pa. 128; Jones v. Caldwell, 97 Pa. 42.
    In the present case testator blended his real and personal estate into a common fund for the payment of his debts, legacies and annuities. And it was only after these were paid or secured he gave to his children the balance remaining.
    We have now reached a conclusion contrary to that heretofore expressed, and the fifth and sixth exceptions to the readjudication must be dismissed.

      James W. M. Newlin, for appellant.
    The devise to the testator’s six children made them tenants in common in fee, and their power over a precedently conferred fee simple, to wit: to alienate it, could not be restricted by the subsequently added power of sale in the executors: Sheets’s Estate, 52 Pa. 257 ; Urich v. Merkel, 81 Pa. 332 ; Doyle’s Estate, 28 Pa. Superior Ct. 579; Sigel’s Estate, 213 Pa. 14; Yerkes v. Yerkes, 200 Pa. 419; Heck’s Estate, 170 Pa. 232; Evans v. Smith, 166 Pa. 625; Kaufman v. Burgert, 195 Pa. 274; Brock v. Steel Co., 203 Pa. 249; Sanders v. Mamolen, 213 Pa. 359 ; Fisher v. Wister, 154 Pa. 65; Jauretche v. Proctor, 48 Pa. 466.
    The will of Thomas T. Tasker, Sr., deceased, worked no conversion of his real estate by reason of the power of sale in the executors : Becker’s Estate, 150 Pa. 524; McClure’s App., 72 Pa. 414 ; Henry v. McCloskey, 9 Watts, 145 ; Anewalt’s App., 42 Pa. 414.

      O. Berkeley Taylor, for appellee.
    There is a blending of the real and personal estate together, and disposition made of it as money: Hunt’s and Lehman’s Appeals, 105 Pa. 128 ; Yerkes v. Yerkes, 200 Pa. 419.
    If there was any contingency or discretion at all, it attached to the time of sale, not to the direction to sell. Such discretion does not affect the conversion : Severns’s Estate, 211 Pa. 65 ; Jones v. Caldwell, 97 Pa. 42 ; Fahnestock v. Fahnestock, 152 Pa. 56 ; Roland v. Miller, 100 Pa. 47 ; Vanuxem’s Estate, 212 Pa. 315.
    May 14, 1906:
   Per Curiam,

The decree is affirmed on the opinion of the court below upon exceptions to the readjudication.


text:
    Brennan’s Estate.

      Trusts and trustees — Compensation—Real estate — Sale of real estate — Commissions.

    Where testamentary trustees have received their regular commissions, on the sale of real estate they are not entitled to an additional compensation based on the increase in value of the real estate above its assessment at the death of the testator, where this increase was only a reflex of the natural growth of city values.
    Where trustees sell real estate free of encumbrances, and actually receive the amount of a mortgage, and immediately pay it over and satisfy the mortgage of record, they are entitled to commissions on the money thus passing through their hands.
    ■ Counsel for a trustee is not entitled to receive a commission for effecting a sale of real estate, where no proofs are submitted that he contracted to act as agent, and his statement that he produced a purchaser is contradicted by one of the parties.
    Where trustees take an assignment of a mortgage paying interest at the rate of five per cent and neglect to record the assignmeiit for three years, and there is no legal proof of any reduction in the rate of interest, the trustees will not be permitted to say that the investment was only at the rate of four and four-tenths per cent.
    Where counsel to trustees examines and supervises twelve annual accounts, and does other work, such as giving advice for investments, in the preparation of leases, and in the sale of real estate, an allowance of merely $200 for preparing the account and attending the audit, will be increased to a fee of $350 covering all services.
    Argued March 22, 1906.
    Appeals, Nos. 367, Jan. T., 1905, and No. 48, Jan. T., 1906, by John Muldoon et al., and by Clara V. Crouse et al., from decree of O. C. Phila. Co., July T., 1883, No. 83, dismissing exceptions to adjudication in Estate of William Brennan, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.

      Ashman, J., filed the following opinion :
    Many if not most of the exceptions relate to the decision of the auditing judge upon matters which rested very largely on his discretion, and his rulings therein were, with one or two exceptions, noted below, vindicated by the evidence. The awards for commissions and compensation to accountants and counsel fees were of this character. Real estate owned by the decedent was a single property wliich the trustees sold for $80,000. Upon this gross sum in addition to the commission of two and one-half per cent which was allowed by the auditing judge, tbe accountants claimed as compensation $6,242.40. The basis of this claim was the increase in value of tbe property above its assessment at the death of the testator. This increase, however, was only a reflex of the natural growth of the city values during the period covered by tbe trust. The trustees were enabled by these conditions to lease advantageously and afterwards to sell tbe real estate, but tbe foresight and skill displayed in the transaction were not of a character to demand an extraordinary recompense, and were fairly measured by the auditing judge. The purchase price included the amount of a mortgage for $12,000. The property was sold free of encumbrances, and the accountants actually received the $12,000 from the mortgagor and immediately paid it over and satisfied the encumbrance of record. The case differs from Moore’s Estate, 211 Pa. 843, where a ground rent was reserved out of tbe purchase money and tbe executors received only tbe balance. In tbe present case the accountants received the whole purchase money and were properly awarded commission on its sum. The exceptions to the ruling of the auditing judge on these points are dismissed. We think it was error to allow a commission to counsel for effecting, as lie alleged, tbe sale of the real estate. No proofs were submitted that he contracted to act as agent and his statement that he produced a purchaser was contradicted by one of the parties. His relation to the estate was that of counsel for the accountants, and if this particular service was in the line of his professional duty it would be compensated by liis professional fees. He could not claim as a real estate agent, because he bad taken out no license as such and in the absence of a special contract could not recover broker’s commission: Coles v. Meade, 5 Pa. Superior Ct. 334. The exception to the allowance is sustained. The facts connected with the mortgage of $18,000 upon property at Ridge avenue and Mt. Vernon street are very obscurely brought out in the testimony. The trustees made a loan in that amount, it was said, upon a promissory note and accepted as collateral security the mortgage in question, one of the assignors being the counsel for the estate, who was an executor under the will of Powell, deceased. The assignment was dated April 8, 1902, but was not recorded until April 17, 1905. Mortgage bore interest at five per cent, but the accountants debited themselves with four and four-tenths per cent. It was stated by counsel upon explanation, that the investment was made at the lower rate. The only proof of an investment, however, was the assignment of the mortgage, and it fixed the income at five per cent. The three years’ delay in recording and the failure to furnish any legal proof of a reduction in the rate of interest, were very serious indications of neglect on the part of the trustees. They will be surcharged in the sum of $337.50, being six-tenths per cent interest up to the date on which the mortgage was paid off. The exception on this point is sustained. The auditing judge considered with great care the subject of the accountants’ commission, as trustees. As a result he allowed them, in addition to the ordinary rate on income, three per cent on the principal of the ground rent of $700 •and two and one-half per cent on the proceeds of sale of real estate. The award was based on the period of twenty years’ services by accountants, and we think was reasonable. Exception taken thereto is dismissed. In addition to the twelve annual accounts which he examined and supervised for the information of the parties in interest and for which he appears to ■ have been paid in' all $300, counsel rendered other service during the course of the administration of the trust. These he detailed in some length at the audit. The trustees sought his advice in the investments of the trust fund, in the preparation of leases and in the sale of the real estate, for which sale he obtained the leave of the court. The auditing judge awarded $200 for preparing the account and attending the audit and re- ■ jected his claim as to the balance. We think that the counsel is fairly entitled to a fee of $350 for general services to the estate, and to that extent we sustain his exception, and aware} the said sum in lieu of the allowance made by the auditing judge. The remaining exceptions to the adjudication are dismissed. Counsel will prepare a decree in conformity hereto.
    May 14, 1906 :

      Error assigned was in dismissing exceptions to adjudication.

      John E. (dormán, with him William (dormán, for John Muldoon et al.

      William F. Brennan and Horace M. Bumsey, for Clara V. Crouse et al.
   Per Curiam,

Decree affirmed on the opinion of the court below.