author: Mr. Justice Moschzisker,

text:
    Joynes to use v. Pennsylvania Railroad Company, Appellant.

      Practice O. P. — Pleadings—Statement of claim — Amendments Carriers — Freight rates.

    1. Amendments should be liberally allowed, and the test of their propriety is whether they introduce a new cause of action.
    2. In an action against a railroad company to recover an alleged overcharge of freight rates, it is not improper to permit the plaintiff to amend his statement a second time, where it appears that the second amendment merely amplifies the first, is not inconsistent with the original statement, makes no real departure from the original cause of action, namely, the overcharge in freight rates, and adds nothing under which the damages could be increased.

      Carriers — Common carriers — Freight rates — Overcharge—Estimated and actual rates.

    3. In an action against a railroad company to recover damages for an alleged overcharge of freight rates on potatoes, a verdict and judgment for plaintiff will be sustained where it appears that the official tariff of rates stipulated that when it was “practicable” for the potatoes to be weighed, they should be charged for at actual weight, but when it was not “practical” to weigh the same, then estimated weights according to a schedule were to govern, and the evidence shows that the railroad company had ample facilities at various points to weigh the potatoes in question both by hand-scales and track-scales.
    4. In such a case it is proper for the court to admit testimony concerning the contents of record cards which indicated that some of the cars had been actually weighed at a particular station. The cards themselves would be the best evidence, and should have been called for if the plaintiff desired to use them; but if there is other ample and uneontradicted testimony to sustain a finding that it would have been practicable to weigh the potatoes, the error is a harmless one, and not a ground for reversal.
    5. In such a case it is also harmless error for the trial judge to refer to the “weight” and “preponderance” of the evidence in spite of the fact that the defendant introduced no testimony.

      Practice, C. P. — Trial—Withdrawal of juror.

    6. Where at a trial counsel asks the court to withdraw a juror and continue the case on account of an improper statement by a witness, and upon the court’s refusal rests upon bis exception to tbe-refusal, without requesting the court to warn the jury to disregard the answer, the appellate court will assume that all parties felt that no material harm had been done, and will not reverse the judgment because the trial judge failed to strike the answer from the record.
    Argued Oct. 26, 1911.
    Appeal, No. 175, Oct. T., 1911, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1906, No. 238, on verdict for plaintiff in case of H. W. Joynes to use of W. W. Joynes v. The Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for overcharge in freight rates.
    At the trial it appeared that plaintiff is a produce merchant at Pittsburgh. His principal business is the buying and selling of potatoes. During the years 1900 to 1905 inclusive, he purchased on the eastern shore of Maryland some 800 cars of Irish and sweet potatoes, all of which were consigned to him at the Pennsylvania Lines produce yards at Pittsburgh. The shipments were from thirty-two stations on the N. Y. P. & N. R. R. Co., coming into Pittsburgh over the lines of the defendant. The defendant had in force a tariff duly filed with the Interstate Commerce Commission fixing the rates on potatoes, applicable to territory including the eastern shore, in part as follows: “The following estimated weights will apply in cars where actual scale weights cannot be ascertained.... Potatoes, white or sweet (in barrels) when it is practicable for agents to weigh same, will be charged at actual weight; but when it is not practical to weigh same, the following estimated weights will govern: Sweet potatoes, — when shipped in common or truck barrels, per bbl., 170 pounds. White potatoes, — when shipped in common or truck barrels, per bbl., 180 pounds.” The contracts of carriage or bills of lading, provided: “Owners or consignees shall pay freight... .according to weights ascertained by any carrier hereunder____”
    The defendant collected freight for the plaintiff’s potatoes on the basis of the estimated weights fixed by the above tariff. In February, 1906, the plaintiff brought suit to recover the difference between the freight paid, based on estimated weights, and that which he claimed should have been collected based on the actual weights; alleging that it had been practicable to weigh the shipments, and that he had continued to pay because he was kept in ignorance, by fraud and misrepresentation, of the fact that the freight was charged on estimated weights. Subsequently he twice amended his statement, and averred his bills of lading and that he was coerced into paying the freight. It was specially admitted in the court below by counsel for the defendant that, “The charges were made on estimated weights and not on actual weights,” and that, if the plaintiff was entitled to recover under the evidence, the amount claimed by Ms counsel at trial was correct and would not be questioned.
    The court charged the jury, inter alia: (a) “The important question for you to determine is whether or not it was practicable to weigh these potatoes, shipped from the points named down on the Eastern shore____ to the plaintiff here in Pittsburgh. It is claimed by the plaintiff that it was entirely practicable to weigh those potatoes. The defendant maintained it was not practicable.” (b) “The plaintiff claims to have shown you that at a great many of those stations there were scales that could have been used, that it was practicable to use those scales at the points of shipment in order to ascertain the actual weight of the potatoes, and that the company should have done so and should have charged, as provided by the Inter-state Commerce Commission, for the actual weight instead of what was shown to be the estimated weight. They claim that if it was not practicable to weigh the potatoes at all of the stations, yet they passed through a number where it was entirely practicable to do so, and that it was the duty of the defendant company and especially incumbent upon them, if they could not have them weighed at the other points, to weigh them here in Pittsburgh, where the freight was payable by the plaintiff, and where it is claimed they have the facilities for weighing the potatoes. It was claimed they could readily have done this, and thus have determined the amount of freight to be paid by the plaintiff according to the actual weight of those potatoes. Now that is the question. Could they have done that at any of these points? Was it practicable for them to weigh these potatoes? Has the testimony on behalf of the plaintiff satisfied you by its weight that it was practicable, if so, the plaintiff is entitled to recover.” (c) “Now that is the question. Could they have done that at any of these points? Was it practicable for them to weigh these potatoes? Has the testimony on behalf of the plaintiff satisfied you by its weight that it was practicable, if so, the plaintiff was entitled to recover. If he has failed in that respect, the burden being upon him, your verdict must be for the defendant. The defence claim he has failed, and has thought it unnecessary to offer any evidence, claiming the plaintiff has not made out his case. In other words, the plaintiff has not shown you by the preponderance of evidence, that it was practicable to weigh these potatoes. That is the question for you to determine, and if you determine that in favor of the plaintiff you allow him the amount of his claim, and if he has not done so, your verdict must be for the defendant company.”
    The verdict was for the plaintiff in the sum of $4,967.69; the defendant’s motion for judgment non obstante veredicto was refused and judgment entered on the verdict. The defendant appealed.

      Errors assigned: (1) Overruling defendant’s objection to testimony in reference to claims on shipments made more than six years prior to the filing of the first amended statement, on the ground that new and different causes of action barred by the statute were introduced by the amendment. (2) Refusal of binding instructions for the defendant. (3) Refusal of defendant’s point, “There is no evidence proper to submit as to the practicability of weighing the shipments of potatoes in question.” (4) Refusal of defendant’s point: “There is no evidence proper to submit as to the weight of the shipments of potatoes in question at the shipping points where the railroad, the N. Y. P. & N., received them.” (5) The admission of testimony concerning weighing of cars as indicated by record cards. (6) The admission of testimony as to notations on certain cards, the cards not being produced. (7) Failure to instruct the jury specifically as' to the meaning of the words “practicable” and “practical.” (8) Portion of the charge “b” above quoted. (9) Portion of the charge “c” above quoted. (10) Refusal of judgment non obstante veredicto for the defendant. (11) The admission of testimony that there was a track scale at Delmar. (12) Admission of testimony that there were scales at Harrisburg and Altoona. (13) Admission of testimony that there were scales at Pittsburgh. (14) Refusal to continue the case because of a statement volunteered by the plaintiff when upon the stand, after warning by counsel for the defendant, the record of which is as follows: “s. In any instance did they charge you on the actual weight? A. No, sir. By Mr. Miller: Confine yourself to the cars in issue in this suit. By the witness: They did settle on actual weights on cars in 1905, but not in this case.”

      James R. Miller of Patterson, Sterrett & Acheson, for appellant.
    — The burden of showing that it was practicable to weigh these potatoes was on the plaintiff and this burden was never met. Consequently the plaintiff was not entitled to have Ms case submitted to the jury.
    It is respectfully submitted that the admission of testimony as to the contents of the cards was contrary to one of the best known rules of evidence, the “best evidence” rule and was clearly error: Hart v. Yunt, 1 Watts 253; McKinney v. Leacock, 1 S. & R. 27; Keely v. Ord, 1 Dallas 310; Buck v. Com., 107 Pa. 486; Brown v. Burr, 160 Pa. 458; Curtis v. Patton, 6 S. & R. 135; Stern v. Stanton, 184 Pa. 468; Grauley v. Jermyn, 163 Pa. 501; Milliken v. Barr, 7 Pa. 23; Buchanan v. Moore, 10 S. & R. 275; Eilbert v. Finkbeiner, 68 Pa. 243; Pratt v. Patterson, 81 Pa. 114; Gaskell v. Morris, 7 W. & S. 32; Barr v. Moore, 87 Pa. 385.

      Stephen Stone of Stone & Stone, for appellee.
    — The form of action may be amended where there is no change in the cause of action: Albertson Trust & Safe Deposit Co. v. Freedley, 18 Montgomery County Law Repr. 183: Jackson v. Gunton, 26 Pa. Super. Ct. 203; Knapp v. Hartung, 73 Pa. 290.
    Payment of the freight charges was made under compulsion and plaintiff is entitled to recover it‘back: Louisville, Evansville & St. Louis Cons. R. R. Co. v. Wilson, 132 Ind. 517 (32 N. E. Repr. 311); Peters v. R. R. Co., 42 Ohio 275; American Steamship Company v. Young, 89 Pa. 186; Riley v. Willis, 5 Wharton 145; Root v. Allegheny River Railroad Company, 2 Foster (Pa.) 295.
    A judgment will not be reversed, unless' it is apparent from the record that an error has been committed and that such error materially injured the rights of the party complaining: Allegheny v. Nelson, 25 Pa. 332; O’Donnell v. Lynch, 1 W. & S. 283; Safe Deposit Trust Co. v. Motheral, 8 Pa, Super, Ct. 433.
    January 2, 1912:
   Opinion by

Mr. Justice Moschzisker,

The first amendment to the statement of claim was allowed without objection or exception on the part of the defendant, and while the second was objected to upon the ground called to our attention by the first assignment of error, it merely amplified the other amendment and was not inconsistent with the original statement; although new matter was averred the plaintiff made no real departure from the original cause of action, namely, the overcharge in freight rates, and he added nothing under which the damages could be increased. “Amendments should be liberally allowed; and the test of their propriety is whether they introduce a new cause of action:” Knapp v. Hartung, 73 Pa. 290, 294; Vervaeke v. Adams Express Co., 230 Pa. 647. The testimony objected to was relevant to the issues raised by the pleadings, and we see no error in its admission.

The freight charges were collected by the appellant company under contracts of carriage which provided that the consignee should pay the freight according to the weights ascertained by any carriers thereunder. The official tariff stipulated that when it was “practicable” for agents to weigh potatoes they should be charged for át actual weight, but when it was not “pracr tical to weigh the same,” then estimated weights according to the schedule were to govern; and that, “estimated weights will apply in cases where actual scale weights cannot be ascertained.” The significant words used are thus defined in Webster’s New International Dictionary: “Practicable, that that may be practiced or performed; capable of being put into practice, done or accomplished; feasible. Practical, syn. — see practicable.” The bill of lading and the printed tariff taken together indicate that these words were used in their ordinary sense; they did not require any particular or elaborate construction on the part of the trial judge. He left it to the jury to say under the evidence whether the company could have accomplished the taking of the actual weight of the potatoes, — whether it was feasible for them to have ascertained their actual weight. The uncontradicted evidence showed that there were hand scales at the various stations of original shipment which had a capacity of 500 pounds, and that barrels of potatoes were at times actually weighed upon such scales; that at several points between those stations and the place of delivery there were track-scales capable of weighing carloads of potatoes, where such work was actually done; and that Pittsburgh, the terminal point, had track scales in the produce yard upon which the actual weight could have been taken.

It appears that when potatoes are weighed in the cars, the actual weight per barrel is ascertained by dividing the total weight less the weight of the car by the number of barrels. This being so, it seems reasonable to assume that they could get the actual weight to almost as great a degree of certainty by weighing a number of barrels on hand-scales at the original point of shipment and accepting the average. However this may be, we are not convinced that, under the documentary evidence, the court was wrong in submitting all of the opportunities for weighing the potatoes to the jury, for, had the defendant company desired, it could have written into its schedule and contract the stipulation that unless track scales existed at the original point of shipment potatoes should be charged for according to estimated and not actual weights.

The trial judge was wrong in permitting the testimony concerning the contents of the record cards which indicated that some of the cars in question had been actually weighed at a station en route called Delmar. The cards themselves were the best evidence, and if the plaintiff desired to rely upon them to any extent he should have given notice to produce. But since there was ample other uncontradicted testimony to sustain a finding that it would have been practicable to weigh the potatoes, we feel that the-mistake can be treated as harmless error, and for that reason the plaintiff should not be forced to a new trial. Nor, under all the circumstances, are we inclined to reverse because of the incident called to our attention in the 14th assignment. While the trial judge should at least have stricken the objectionable answer from the record and warned the jury to disregard it, yet since counsel for the appellant rested upon his exception to the refusal to withdraw a juror and continue the cause, and made, no request of the court to warn the jury to disregard the answer, we think it is probable that all parties felt that no material harm had been done. The defendant introduced no testimony; therefore, it was unnecessary for the trial judge to refer to the “weight” and “preponderance” of the evidence, but no possible harm could have been done thereby.

There was ample evidence to show that it was practicable to ascertain the actual weights, and that the freight payments were not voluntary. After considering in detail each of the matters called to our attention we are not convinced of reversible error; the assignments are all overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Erny v. Sauer, Appellant.

      Mortgage — Conveyance of Beal Estate — Agreement to surrender possession of mortgaged premises — Consideration.
    1. An agreement by a mortgagor in default on interest instalments to surrender possession of the mortgaged property and make a deed of conveyance for the saíne to the mortgagee on condition of his being released from further liability on the mortgage is without consideration and void. The fact that the mortgagor went to the trouble and expense of procuring another residence and removing his family thereto is not a sufficient consideration for such an agreement.
    2. Where a legal obligation exists a cumulative promise to perform it, unless upon a new consideration, is a nullity. A promise cannot be conditioned on a promise to do a thing to do which a party is already legally bound.
    Argued Oct. 27, 1911.
    Appeal, No. 181, Oct. T., 1911, by defendant from order of C. P. No. 2, Allegheny Co., July T., 1911, No. 406, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Joseph F. Erny now for use of Joseph F. Erny, Trustee of German National Bank et al. v. W. N. Sauer.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Scire facias sur mortgage.
    The facts are stated in the opinion of the Supreme Court.

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

      U. G. Vogan, for appellant.
    — A mortgage is only a chose in action and may be released by parol: Craft v. Webster, 4 Rawle 242; Whitehill v. Wilson, 3 P. & W. 405; Ackla v. Ackla, 6 Pa. 228; Wentz v. Dehaven, 1 S. & R. 312; McCauley v. Cremerieux, 132 Pa. 22.

      John E. Winner with him John D. Brown, for appellee.
    — The agreement relied upon by appellant was nothing more than an agreement to do that which he was already bound to do. Such a promise does not constitute a valid consideration: Wimer v. Worth Township Poor Overseers, 104 Pa. 317; Cleaver v. Lenhart, 182 Pa. 285; Fink v. Smith, 170 Pa. 124; Datesman’s App., 127 Pa. 348.
    January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

This is an appeal by the defendant from a judgment entered by the court below for want of a sufficient affidavit of defense. The learned court has not favored us with an opinion and we are therefore not advised as to its reasons for entering the judgment. It has frequently been pointed out by this court that an opinion should be filed setting forth briefly at least the reasons of the court for holding the affidavit insufficient and depriving the defendant of a jury trial. In the present condition of this record, we become a court of first instance and deal with the question involved as though it had not been considered or determined by the trial court. This, as we have often said, is not the intention of the law. The court of common pleas is the court of first instance and the parties have the right to have their cause heard and decided according to law and the established practice of the state. This court, in adjudicating the question for decision, is entitled to have the assistance which the opinion of the trial court would give.

W. N. Sauer, the defendant, and one L. H. Smith became endorsers on several promissory notes for E. T. and C. L. Walther. These notes were discounted by the banks for whose use the scire facias on the mortgage was issued. Smith and Walther became insolvent, the former’s estate paying a very small part of the indebtedness secured by the notes. The banks looked to Sauer for payment of the balance due, and he being unable to raise the money entered into an agreement with Joseph F. Erny, the plaintiff, on April 1, 1909, agreeing to execute and deliver to Erny a bond and mortgage conditioned for the payment of $32,700, being the aggregate amount of the notes. The debt was to be paid in two years and nine months with interest from January 1, 1910, payable semi-annually. The mortgage was executed and delivered contemporaneously with the agreement. The mortgage contained a clause providing that in case of default in the payment of the principal or any semi-annual installment of interest for thirty-days after the same should become due and payable, the whole of the principal debt and interest then unpaid should thereupon become due and payable and a writ of scire facias might issue forthwith on the mortgage.

The defendant having made default in the payment of the two semi-annual installments of interest due on July 1, 1910 and January 1, 1911, the plaintiff, on May 23, 1911, issued a scire facias on the mortgage. To the plaintiff’s statement of' claim the defendant filed an affidavit of defense, denying that he was in default in the payment of the principal sum or interest, and averring substantially that about March 1, 1911, Erny, the plaintiff, and Sauer, the defendant, entered into an oral agreement by which the defendant was to surrender possession of the mortgaged property, make a deed of conveyance for the same to the plaintiff, and, in ■consideration therefor, the defendant was to be released from further obligation on account of the mortgage; that in pursuance of the agreement the defendant rented a house and removed from the premises, and gave possession to the plaintiff, who at the time of bringing the suit was in possession under the oral agreement. The affidavit of defense further avers that the defendant, in pursuance of the agreement and at plaintiff’s request, gave Ms title deeds to the plaintiff for the purpose of having a deed prepared for the defendant to execute and that he is ready and willing to execute a deed at any time he receives it.

The defendant contends that the mortgage was released by the parol agreement entered into between the parties, and that therefore the plaintiff has no right to proceed by scire facias to obtain judgment and sell the premises. The difficulty with the defendant’s contention is that conceding, as he maintains, that the mortgage could be released by an oral agreement, there is no consideration to support the agreement entered into between him and the plaintiff. Our cases hold, as is conceded, that a new consideration is necessary to support the oral agreement. The defendant contends, however, that the surrender of the possession and the other acts performed by him are a sufficient consideration. The other acts referred to are the trouble and expense of procuring another residence and removing his family thereto. It is true, as he claims, that the practice in this state is for the mortgagor to retain possession and receive the rents and profits of the premises until he is dispossessed by foreclosure proceedings. He therefore contends that it was an advantage to the plaintiff to be given immediate possession without the delay and expense incident to a sale and purchase of the premises by the plaintiff. These advantages to the plaintiff together with the alleged disadvantages to the defendant, it is claimed, are sufficient consideration to support the agreement.

But we are not impressed with the defendant’s contention that the matter and acts he refers to constitute a consideration which will support the agreement. At the time the writ was issued in this case, the defendant had made default in payment of the semiannual installment of interest due on July 1, 1910 and January 1, 1911. The plaintiff therefore, on March 1, 1911, the date of the alleged oral agreement, conld have proceeded by scire facias, obtained judgment, sold the premises, and collected the indebtedness due him, secured by the bond and mortgage; or, he could have entered at pleasure, taken actual possession, used the land and reaped its profits: Tryon v. Munson, 77 Pa. 250. If the defendant refused to give possession, he could have been ousted by an action of ejectment. Assuming that he gave possession in pursuance of. the alleged parol agreement, he did nothing more than it was his duty to do or what he could have been compelled by legal process to do. No consideration therefore passed to the plaintiff when the defendant voluntarily surrendered possession of the premises to him in pursuance of the agreement: Wimer v. Worth Township Poor Overseers, 104 Pa. 317; Fink v. Smith, 170 Pa. 124; Dunn v. Washington Building & Loan Association, 2 Penny. 109. In the Fink case it is said (p. 128) : “A promise made by the owner to obtain possession of his goods, which at the time are wrongfully withheld from him, is without consideration.” Mr. Justice Trunkey delivering the opinion in the Wimer case says (p. 320) : “Where a legal obligation exists, a cumulative promise to perform it, unless upon a new consideration, is a nullity. * * * A promise cannot be conditioned on a promise to do a thing to which a party is already legally bound.”

We are of the opinion that the affidavit sets up no legal defense to the plaintiff’s claim, and that therefore the rule for judgment was properly made absolute.

The judgment is affirmed.


author: Mr. Justice Brown,

text:
    Flynn v. Pittsburgh Railways Company, Appellant.

      Negligence — Street railways — “Stop, loole and listen,” — Contributory negligence — Near sightedness of plaintiff — Safety stop.

    Where a woman on a clear day approaches a street railway track at a point where there is nothing to obstruct a view of the track for more than a mile in the direction of an approaching car, and is struck the instant she goes upon the track, she is guilty of contributory negligence and cannot recover from the railway company for the injuries sustained; and she is not relieved from the charge of contributory negligence because she was nearsighted, nor is she relieved from such charge because there was a safety stop a few feet away in the direction from which the car came, if it appears, that, if she had looked before she stepped upon the track, she would • have known that the car had not stopped at the safety stop.
    Argued Oct. 27, 1911.
    Appeal, No. 186, Oct. T., 1911, by defendant from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1908, No. 23, on verdict for plaintiff in case of Elizabeth Flynn v. Pittsburgh Railways Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      Errors assigned were in refusing binding instruc-' tions for defendant, and in refusing defendant’s motion for judgment n. o. v.

      William A. Challener with him Clarence Burleigh for appellant,
    cited: Kelly v. Union Trac. Co., 211 Pa. 456; Moss v. Traction Co., 180 Pa. 389; Mease v. Trac. Co., 208 Pa. 434; Smith v. Ry. Co., 187 Pa. 451; Knox v. Ry. Co., 202 Pa. 504; Yingst v. Ry. Co., 167 Pa. 438.

      Rody P. Marshall, with him Thomas M. Marshall, for appellee,
    cited: Sowash v. Traction Co., 188 Pa. 618; Keator v. Traction Co., 191 Pa. 102; So. Covington & C. St. Ry. Co. v. Beatty, 50 S. W. Repr. 239; Callahan v. Traction Co., 184 Pa. 425; Taylor v. Canal Co., 113 Pa. 162; Henderson v. Traction Co., 202 Pa. 527; Thatcher v. Traction Co., 166 Pa. 66; Harkins v. Traction Co., 173 Pa. 149; Smith v. Traction Co., 3 Pa. Super. Ct. 129; Beard v. Ry. Co., 3 Pa. Super. Ct. 171; Haughey v. Rys. Co., 210 Pa. 363; Conynham v. Motor Co., 15 Pa. Super. Ct. 573; Shaughessy v. Traction Co., 17 Pa. Super. Ct. 588; Oehmler v. Rys. Co., 25 Pa. Super. Ct., 617; Malone v. R. R. Co., 152 Pa. 390.
    January 2, 1912:
   Opinion by

Mr. Justice Brown,

The contributory negligence of the plaintiff below was so clear that the defendant’s motion for a non-suit should have prevailed, or, at the close of the testimony, a verdict ought to have been directed in its favor. After leaving a street car on California Avenue, in the City of Allegheny, the appellee, with several others, walked down an alley to Beaver Avenue, for the purpose of boarding a car on the south side of that avenue. There were two tracks of the defendant company upon it, and to reach the one on the south side it was necessary to cross over the one on the north. The testimony of the appellee is that, after she had passed out of the alley, she stepped down: from the curb of the pavement and looked and listened for an approaching car, and, having neither seen nor heard one, passed over the space between the curb and first track — less than eight feet in width — continuing to look and listen for a car. The day was clear and bright and there was nothing to obstruct a view of the track for more than a mile in the direction from which the car came that struck her, for it was straight and level for that distance. She was struck just as her feet were upon the track, though the coming of the car could have been seen for the distance stated. That she was struck the instant she got upon the track is not to be questioned. William Hiens, a witness to the accident, who was called by the plaintiff, testified as follows: “Q. Where was the car when she stepped on the track? A. The car was very near on top of her when she stepped on the track. * * * Q. And the car was on top of her when she stepped on the first rail, wasn’t it? A. Yes, sir. Q. And she practically stepped in front of that moving car, didn’t she? A. Yes, sir.” Her own daughter, Mrs. Lillian Mulroy, who witnessed the collision, stated that as soon as her mother stepped across the first rail the car struck her about the center of the track. In Crooks v. Pittsburgh Railways Company, 216 Pa. 590, we said: “Where a foot passenger walks or steps directly in front of an approaching car, and is struck at the instant he sets his foot between the rails there is but one inference which can reasonably be drawn from that fact, and that is the inference of contributory negligence. * * * The testimony is undisputed as to the manner in which this most unfortunate accident occurred. As we have seen, one step, or at the most two, carried the deceased from a point outside the line of the track into collision with the car. It must have occurred in less than a second of time. The facts speak for themselves. The action of the deceased can only be characterized as contributory negligence.” And so here, the act of the appellee, in stepping on the track when the car which struck her was but a few feet from her, and which she must have seen and heard if she had been looking and listening, must be regarded as contributory negligence, barring her right to recover, even if the defendant company was negligent.

But it is urged that the appellee ought not to be adjudged guilty of contributory negligence, as a matter of law, for two reasons, first, she was nearsighted, and, second, as there was a safety stop a few feet from the alley, in the direction from which the car came, she had a right to presume it would stop there. These two circumstances were not sufficient to send to the jury the question of her contributory negligence. Though nearsighted, she admitted that she could see, for she says she looked to see whether a car was coming, and, even when protesting her nearsightedness, she again admitted that she could see a moving object across the street from her. If she had looked when she was about to put her foot on the track, she would have seen the car, which was then nearer to her than the width of the street. If she was nearsighted, there was the greater reason for caution on her part in crossing the street. Her nearsightedness, insteading of relieving her from the duty of ordinary care, imposed upon her the duty of greater precaution to avoid injury: Central Railroad Company of New Jersey v. Feller, 84 Pa. 226; Mark’s Administrator v. Petersburg Railroad Co., 88 Va. 1; McKinney v. Chicago & Northwestern Railway Co., 87 Wis., 282. “Those who are deficient in any one of their senses must all the more diligently use the others. Thus, a deaf man should look up and down the track even more closely than might be necessary if he could hear well; and one whose eyesight is defective ought to listen all the more carefully for trains:” Shearman & Redfield on the Law of Negligence, (5th ed.), sec. 481. If the appellee had looked before she stepped upon the track, she would have known that the car had not stopped at the safety stop. The learned trial judge correctly instructed the jury that she could not escape the charge of contributory negligence by reason of being nearsighted nor relieve herself of that charge under a belief that the car would stop at the safety stop; but he should have gone further, and, in view of her clear contributory negligence, to which we have referred, affirmed defendant’s point.

The first assignment is sustained and the judgment reversed.


text:
    Donnelly v. Byers, Appellant.

      Decedents’ estates — Sale of real estate — Ratification of sale — Act af April 13, 1854, Sec. 3, P. L. 368.

    1. Where executors have sold the real estate of a decedent for the payment of debts, without an order of court, the Orphans’ Court may subsequently approve, ratify and confirm such sale. The authority conferred by the third section of the Act of April 13, 1854, P. L. 368, applies to all sales, and is not confined merely to sales under the Price Act. Its application is general, and its authority may be invoked wherever the court may have previously authorized a sale or conveyance of real estate.
    2. A testator gave his trustees power to sell real estate. The executors who were also trustees executed an agreement to sell real estate for the purpose of raising money to pay debts. The deed in pursuance of, the agreement was signed by the parties as executors and trustees. No order of court was procured authorizing the sale, but subsequently a petition was filed in the Orphans’ Court praying for the ratification of the sale. All parties in interest, except one person, waived the issue of the citation, and a citation was served on this person and on all creditors of the decedent who had filed suits to preserve the lien of their debts, the statutory period of two years from the death of the decedent having then expired. All the facts necessary to give the Orphans’ Court jurisdiction were averred in the petition, and no one objecting, a decree of confirmation was entered. Subsequently the fund raised by the sale was distributed, and a dividend was paid thereout to the creditors. Thereafter the executors and trustees brought an action on a bond given by the purchaser of the real estate to secure the payment of the purchase money. Held, that the purchaser had no standing in such suit to raise any question as to the validity of the sale, inasmuch as all parties in interest and all creditors had, either by participating in the proceedings, or by the citation, or by acceptance of dividends, been barred from all claims against the real estate.
    Argued Oct. 27, 1911.
    Appeal, No. 187, Oct. T., 1911, by defendant, from order of C. P. No. 2, Allegheny Co., July T., 1911, No. 204, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Alice R. Donnelley et al. Executors and Trustees of Charles Donnelly, deceased for the use of Commonwealth Trust Company of Pittsburgh, Administrator cl. b. n. c. t. a. v. Eben M. Byers.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschziskee, JJ.
    Affirmed.
    Assumpsit on a bond given to secure a balance of purchase money for land.
    The facts are stated in the opinion of the Supreme Court.

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

      Ralph Longenecker, with him Gordon & Smith, for appellant.
    — The liens of the debts not of record against the estate of Charles Donnelly, which Avere preserved in the manner required by law, Avere not discharged from the land sold and conveyed to the appellant by the decree of the Orphans’ Court subsequently entered, purporting to confirm and ratify the sale as a sale for the payment of debts: Mussleman’s App., 65 Pa. 480; Dundas’s App., 64 Pa. 325; Schwartz’s Est., 168 Pa. 204; Mulholland’s Est., 224 Pa. 536.
    The sale to appellant was a sale by trustees under a testamentary power; not a sale for the payment of debts: Allison v. Kurtz, 2 Watts 185; Miller v. Meetch, 8 Pa. 417; Jones v. Wood, 16 Pa. 25, and Henby v. Warner, 51 Pa. 276.
    The sale was valid, fully consummated and did not need, nor was it subject to, either confirmation or ratification: Walker v. Quigg, 6 Watts 87; Mulholland’s Est., 224 Pa. 536; Hannum v. Spear, 2 Dallas, 291.
    The Orphans’ Court did not have the poAver to convert this trustees’ sale into a sale for the payment of debts: Dundas’s App., 64 Pa. 325; Daily’s App., 87 Pa. 487; Duval’s App., 38 Pa. 112; Spencer v. Jennings, 114 Pa 618; Aston’s Est., 5 Whart. 228.

      The Court did not have the power under the Act of April 13, 1854, P. L. 368, 4 Purdon, 4030, Sec. 37, to discharge the liens of the debts not of record from the land in question.
    The lien creditors who accepted the dividends distributed to them out of a fund composed partly of the cash consideration paid for this land, are not estopped thereby from enforcing their liens against the land: Walker v. Quigg, 6 Watts 87; Mulholland’s Est., 224 Pa. 536; Hannum v. Spear, 2 Dallas 291.

      Alvin A. Morris, with him Albert J. Walker and Harold Allen, for appellees.
    — The Orphans’ Court had power to ratify the sale: Mussleman’s App., 65 Pa. 480; Bell’s App., 71 Pa. 465; Bowker’s Est., 6 W. N. C. 254; Wainright’s Est., 11 Phila. 147; Charlton’s Est., 12 Phila. 102; Corr’s Est., 29 Pa. C. C. R. 276; Allison v. Kurtz, 2 Watts 185.
    The lien creditors of decedent are estopped: Maple v. Kussart, 53 Pa. 348; Siebert v. Zinkand, 26 Pitts. Leg. J. 137.
    January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

We see no merit in this appeal. When it was ascertained that the real estate devised by the testator in trust for his children was required for the payment of his debts, it was the duty of his personal representatives to sell it and apply the proceeds to that purpose. This they did by presenting a petition in proper form to the Orphans’ Court, setting forth all the'necessary jurisdictional facts and praying for the ratification and confirmation of the sale, made to Byers, for the payment of the debts of the decedent. The widow and all of the children of ther decedent and the Commonwealth Trust Company, sole trustee under the will of the decedent, being all the parties in interest either under the will of the decedent or as his heirs at law, except Charles Donnelly, Jr., waived the issuing of a citation and notice of the presentation of the petition to the court and joined with the petitioner in the prayer that a citation on Charles Donnelly, Jr., and on all the creditors of the decedent who had filed suits to preserve the lien of their debts, the statutory period of two years from the death of the decedent having then expired, to show cause why the court should not confirm and ratify the sale formerly made to Byers as a sale for the payment of debts. The citation refers to the petition and recites that it prays “for confirmation of sale of certain real estate fully described in petition for the payment of debts to Eben M. Byers,” and was served upon Charles Donnelly, Jr., and upon all of the creditors who had filed suits against the decedent’s estate. The court entered a decree ratifying and confirming the sale theretofore made to the defendant Byers as a sale for the payment of debts “as if the said sale had been previously ordered and directed and * * * free from any lien whatever of the debts of said decedent.”

We have no doubt of the power of the court to ratify and confirm the sale made by the executors to Byers as a sale made for the payment of debts. The third section of the act of April 13, 1854, P. L. 368, 4 Purd. 4030, provides that “in all cases wherein any of the courts of this commonwealth might have authorized any sale- or conveyance, or letting on ground-rent or otherwise, and such sale, conveyance or letting may have been made without leave of such court, it shall be lawful for such court, if approving of such sale or conveyance or letting, to approve, ratify and confirm the sale, with the same effect as if such decree had preceded the sale, conveyance or letting.” We do not agree with the learned counsel for the appellant that the authority conferred by this section of the act applies only to sales made under the Price act. It is true that the act of 1854 is a supplement to the Price act but, as suggested by appellee’s counsel, the other two sections of the act expressly limit their application to sales made under the Price act. Not so with the third section of the act. As will be observed, the section confers jurisdiction on the court to ratify and confirm a sale, “in all cases wherein any of the courts of this Commonwealth might have authorized any sale or conveyance * * * and such-sale, conveyance or letting, may have been made without leave of such court.” The section is of general application and its authority may be invoked wherever the court could have perviously authorized a sale or conveyance of real estate. This is the uniform construction placed by the lower courts on the section wherever the question has arisen, and the language is amply broad enough to sustain the construction.

The agreement to sell the real estate to Byers was executed by the executors, and not by the trustees, of the decedent. The deed made in pursuance of the agreement was signed by the parties as executors and trustees. By his will, the decedent gave his trustees power and authority to manage and control all of the trust property, including the power to buy and sell real and personal estate and change realty into personalty and personalty into realty. The trustees, who were also the executors, therefore had full authority to make the sale to Byers, the proceeds of which by the terms of the will and by the law were first applicable to the payment of debts. That the sale was made by virtue of this authority did not prevent the Orphans’ Court from subsequently ratifying it as a sale for the payment of debts. So long as the unsecured debts of the decedent remained unpaid, the executors and trustees could not sell for the purposes of the trust so as to discharge the land from the payment of debts. But the sale having been made and it subsequently appearing that the proceeds were necessary for the payment of debts, the act of 1854 conferred power on the Orphans’ Court to ratify and confirm the sale as a private sale made for the payment of debts. Prior to the sale to Byers made under the power in the will, the executors could have made a private sale of the real estate for the payment of debts, which the court, under the act of May 9, 1889, P. L. 182, was authorized to decree and approve.

It is conceded that the price agreed to be paid by Byers was the full value of the real estate. It further appears, as suggested above, that all parties in interest under the will or as heirs at law who could be affected by the sale had notice of the application made by the administrator d. b. n. c. t. a. for the ratification of the sale as a private sale made for the payment of debts. All the facts necessary to give the Orphans’ Court jurisdiction are averred in the petition. No objection to the confirmation of the sale has been made by any of the heirs, devisees, legatees, creditors or other parties legally interested. We are therefore at a loss to see any substantial reason why the sale should be declared invalid at the instance of the purchaser. In the language of Judge Stowe in Siebert v. Zinkand, 26 Pitts. Leg. J. 137, a similar case: “The property having thus by legal intent been sold for its full value, and the money representing the value of the land having gone into the Orphans’ Court and there distributed, what real difference does it make to plaintiff (here, the purchaser) that the sale was made by her (here, the executors and trustees) as devisees (here, as executors and trustees) under the will, instead of being by her as executrix under order of the Orphans’ Court?”

The executors received from Byers $20,000 in cash and the bond on which this suit was brought. They filed an account in which they charged themselves with the cash and the bond, and turned them over to the Commonwealth Trust Company, administrator, the plaintiff in this action. Subsequently the administrator filed its first and partial account charging itself with the cash received from the executors. A decree for distribution was made of the balance shown in the administrator’s hands by this account, and a dividend was paid to all of the creditors of the estate except Sarah Dawson Speer, executrix of Charles E. Speer who was guardian of Mary R. Donnelly, Louise Donnelly and Allen G-. Donnelly, and P. J. Brennan who had. brought suit for a small sum. The acceptance of the dividend by the creditors was a ratification of the sale made by the executors. They cannot receive the money and at the same time deny the authority of the executors to make the sale which produced the fund out of which the dividends were paid. The creditors were fully advised that the sale was for the payment of debts. The citation served on them to show cause why the sale should not be confirmed distinctly disclosed the fact that the petition presented to the court asked “for the confirmation of sale of certain real estate fully described in petition for the payment of debts to Eben M. Byers.” They were further advised as to the character of the fund out of which they received their dividends, and how it was produced, by the account filed by the executors. It is idle, we think, to contend that the creditors who received and receipted for the dividends were not fully —aware that the fund out of which they were paid was produced by the sale of real estate for the payment of the decedent’s indebtedness. We are of the opinion that under the circumstances the acceptance by the creditors of the dividend on their indebtedness paid out of the proceeds of the fund produced by the sale of the real estate to the defendant is a ratification of the sale and estops the creditors from pursuing the land for the balance of their claim.

Our attention has not been called to any act of assembly and we know of none which requires notice to creditors by the executors of the intended application to the court for an order to sell real estate for the payment of debts or for the confirmation of a private sale made for that purpose. When a personal representative files his account the act of March 15, 1832, P. L. 135 requires the register to give notice by publication and posting for four weeks that the account has been settled in his office and that it will be presented to the Orphans’ Court for confirmation. Personal or actual notice, is not required: Priestley’s Appeal, 127 Pa. 420. It is not alleged that the proper legal notice of filing of the account and presenting it to the court for confirmation was not given prior to the audit and settlement of the account and the distribution of the fund in the hands of the administrator. It was the duty of creditors to present their claims to the court for allowance. If Sarah Dawson Speer, as executrix of Charles E. Speer, deceased, late guardian of the three Donnelly children, had any claim against Donnelly’s estate or the fund for distribution, it was her duty to present it at the proper time for allowance, and we must assume that she would have done so. The same is true of P. J. Brennan. That neither of these parties presented a claim or participated in the distribution of the fund in court is fully explained by the admitted facts. The three Donnelly children for whom Mr. Speer had been guardian were of age at the time of the application to the Orphans’ Court, and joined in the prayer of the petition for the confirmation of the sale of this land to Byers as a sale made for the payment of debts. This was a release by them of the land from any claim they as heirs, devisees or creditors might have against it. The fact that they joined in the application to sell as devisees and heirs and not as creditors is of no moment. The sale being for the payment of debts and approved by the court at their request, and they having legal notice that an account had been filed by the administrator, accounting for the fund produced by the sale, were required to present their claims, if any they had, to the Orphans’ Court for payment out of the fund for distribution. The affidavit of defense does not aver that Mrs. Speer, as executrix, has a claim against the estate which is a lien on the land nor that the wards of her late husband are indebted to his estate, and it cannot be presumed. Brennan failed to take the proper proceedings to continue the lien of his debt, and hence he can have no claim against the real estate purchased by the defendant.

The judgment is affirmed.


author: Mr. Justice Potter, Mr. Justice Moschzisker,

text:
    Gottschall, Appellant, v. Campbell.

      Constitutional law — Courts—Allegheny County Court — Act of May 6, 1911, P. L. 198 — Uniformity—Procedure—Trial by Jury.

    1. Under Article V, Sec. 1, of the Constitution, providing that “the judicial power of this Commonwealth shall he vested in a Supreme Court, in Courts of Common Pleas, Courts of Oyer and Terminer and General Jail Delivery, Courts of Quarter Sessions of the Peace, Orphans’ Courts, Magistrates Courts, and in such other courts as the General Assembly may from time to time establish,” the legislature may not only establish courts similar to those enumerated, but also courts of a grade and character different from those expressly set forth.
    2. It is a cardinal principle in the construction of constitutions that the language is to be interpreted in a plain and natural sense as understood by the people who adopted it.
    3. The Act of May 5, 1911, P. L. 198, establishing a county court in Allegheny County is constitutional. It does not violate Section 7, Article III of the Constitution, which forbids local or special legislation, nor Sec. 26 of Art. Y, which requires that all law relating to courts shall be general and of uniform operation, and prohibits the legislature from creating other courts to exercise the powers vested by the Constitution in the judges of the courts of Common Pleas.
    4. The Act of May 5, 1911, would be local and special, were it not for the fact that the Constitution itself has made a classification with reference to the creation, regulation and powers of the courts, in which the County of Allegheny is treated as a distinct division, and the County of Philadelphia as another, and in each of which counties the courts as to their needs and requirements are distinguished from the remaining counties in the state.
    5. As the Act of May 5, 1911, provides for a new court of a different class or grade from any before created, and as it provides for only one court of this grade, tbe law regulating it is uniform in the constitutional sense as expressed in Sec. 26, Art. V of the Constitutions. If other courts of the same grade shall be established, then all laws relating to that grade must be of uniform application.
    6. The prohibition contained in the last clause of Section 26 of Article V of the Constitution, which prevents the General Assembly from creating other courts, to exercise the powers vested by the Constitution “in the judges of the Courts of Common Pleas and Orphans’ Courts,” has reference only to the powers vested in the judges of the Courts of Common Pleas as distinguished from the powers vested in the courts themselves. The act does not divest the judges of the Courts of Common Pleas or the Orphans’ Court of any of their powers; nor does it infringe in any way upon the powers of jurisdiction of these courts, inasmuch as the jurisdiction of the County Court is concurrent and not exclusive.
    7. The language of Section 6 (a) of the Act of May 5, 1911, cannot be construed as giving jurisdiction in all civil actions without limit as to amount. The limitation of $600 applies to all the actions to which reference is made.
    8. The fact that the procedure provided by the act for the County Court differs from that which obtains in the Common Pleas, does not lay the act open to the objection that it is not uniform, nor is the provision for the service of writs of summons open to constitutional objection.
    9. The provision of Section 8 relating to a trial by jury- on request of either party, and the payment of the jury fee in advance, is not an abridgement of the constitutional right of trial by jury.
    10. The provisions as to set off contained in Section 10 of the act are not unconstitutional; nor are the liens authorized under Section 11 objectionable.
    11. One who asks to have a law declared unconstitutional takes upon himself the burden of proving beyond all doubt that it is so.
    Moschzisker, Mestrezat and Stewart^ JJ., dissent.
    Argued Oct. 30, 1911.
    Appeal, No. 201, Oct. T., 1911, by plaintiff from decree of C. P. No. 2, Allegheny Co., July T., 1911, No. 614, dismissing bill in equity in case of M. H. Gottschall v. I. K. Campbell et al., County Commissioners of Allegheny County, R. J. Cunningham, Controller of Allegheny County and George W. Foster, Treasurer of Allegheny County.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Shafer, J.
    The case involved the constitutionality of the Allegheny County Court Act of May 5, 1911, P. L. 198.
    The court held that the act Avas constitutional and entered a decree dismissing the bill.

      Error assigned Avas the decree of the court dismissing the hill.

      H. K. Siebeneck, for appellant.
    — The act is local: Perkins v. Philadelphia, 156 Pa. 554; Blankenburg v. Black, 200 Pa. 629; Roumfort Co. v. Delaney, 230 Pa. 374; Ruan St., 132 Pa. 257; Wyoming St., 137 Pa. 494; Pittsburgh’s Petition, 138 Pa. 401; Morrison v. Bachert, 112 Pa. 322; Com. v. Patton, 88 Pa. 258; McCarthy v. Com., 110 Pa. 243; Scranton v. Silkman, 113 Pa. 191; Philadelphia v. Haddington M. E. Church, 115 Pa. 291; Safe Deposit & Trust Co. v. Fricke, 152 Pa. 231; Strine v. Foltz, 113 Pa. 349; Henry Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486.
    The Constitution does not classify the courts of Allegheny by themselves: Davis v. Clark, 106 Pa. 377; Com. v. Mathues, 210 Pa. 372; O’Mara v. Com., 75 Pa. 424; Ayars’ App., 122 Pa. 266; Philadelphia v. Haddington M. E. Church, 115 Pa. 291.
    The Act violates Article V. Section 6.
    The Act is a local law authorizing the creation of liens: Philadelphia v. Haddington M. E. Church, 115 Pa. 291; Ruan Street, 132 Pa. 257; Wyoming Street, 137 Pa. 494; Com. v. Mathues, 210 Pa. 372.

      D. T. Watson, Thomas Patterson and W. B. Rodgers, with them Wm. A. Stone, Joseph Stadtfeld, A. B. Hay and Charles A. Woods, for appellee.
    — The County of Allegheny is a separate class in the Constitution for purposes of legislation in regard to courts: Wheeler v. Philadelphia, 77 Pa. 338; Seabolt v. Northumberland County Commissioners, 187 Pa. 318; Wilkes-Barre v. Meyers, 113 Pa. 395; Com. v. Bell, 4 Pa. Super. Ct. 187; Gallagher v. MacLean, 193 Pa. 583.
    The power to create a court involves power to prescribe procedure.
    January 2, 1912:
   Opinion by

Mr. Justice Potter,

By the act of May 5, 1911, P. L. 198, the legislature established a county court in Allegheny County, and conferred jurisdiction upon it, in civil actions wherein money judgments were sought, and in actions of replevin, in which the sums demanded, or the value of the property replevined, does not exceed six hundred dollars; except in cases where the title to lands or tenements may come in question. Jurisdiction was also conferred in desertion proceedings and in appeals from summary convictions, and from judgments in suits for penalties before a magistrate or court not of record.

Averring that the act is unconstitutional, the plaintiff in this case, a taxpayer of Allegheny County, filed a bill in equity against the county commissioners to restrain them from expending any of the funds of the county, in providing accommodations for the nqw court. Defendants demurred to the bill, and the demurrer was sustained and the bill dismissed. Plaintiff has appealed and assigns for error the decree of the court below, dismissing the bill.

The power of the legislature to establish courts other than those named in the constitution, cannot be questioned. ' Article V Section 1 of the constitution provides that “The judicial power of this Commonwealth shall be vested in a Supreme Court, in Courts of Common Pleas, Courts of Oyer and Terminer and General Jail Delivery, Courts of Quarter Sessions of the Peace, Orphans’ Courts, Magistrates’ Courts, and in such other courts as the General Assembly may from time to time establish.” No one can fairly read this section of the constitution and maintain that the courts therein named are the only ones which the legislature wras empowered to establish. A reasonable construction of this language, is that the power of the legislature extends not merely to the establishment of other courts similar to those enumerated, but that it also includes the power to establish courts of a grade and character different from those expressly set forth. It is a cardinal .principle in the construction of constitutions that the language is to be interpreted in its plain and natural sense as understood by the people who adopted it. So interpreted the poAver to create a court such as that provided for in the act before us, is ample. It was under the power given by this section, that the legislature estabished the Superior Court. It would be late in the day to now challenge the existence of this poAver, sixteen years after its first exercise in the creation of the Superior Court. The same power is adequate to establish county courts, and prescribe their jurisdiction. Having the power, the question then is, was it properly exercised in this case? The act establishes a court for Allegheny County, and for that reason it is urged that the legislation is local and special, and violates section 7 of article III of the constitution, which forbids local or special legislation; and it is also contended that it offends the provisions of section 26 of article Y, which requires that all laws relating to courts shall be general and of uniform operation, and prohibits the legislature from creating other courts to exercise the powers vested by the constitution in the judges of the courts of common pleas. The objection that the legislation is local and special would be unanswerable, were it not for the fact that the constitution itself has made a classification with reference to the creation, regulation and powers of the courts, in which the County of Allegheny is treated as a distinct division, and the County of Philadelphia as another, and in each of which counties the courts as to their needs and requirements are distinguished from the remaining counties in the state.

The principle of constitutional classification, and particularly the classification of counties, has been clearly recognized in a number of our cases. Thus in Morrison v. Bachert, 112 Pa. 322, Mr. Justice Paxson said (p. 330) : “So far as the compensation of county officers is concerned, the constitution has classified the counties of the state.” In Reid v. Smoulter, 128 Pa. 324, Mr. Justice Clark said (p. 337) : “We are of opinion that the Act of April 13, 1887, P. L. 22, already referred to, is not in conflict with the constitution, because special or local in its operation. The constitution recognizes a class of counties, in each of which it is the duty of the legislature to establish a separate Orphans’ Court, and the Act plainly applies to all the counties of this class.” In Rymer v. Luzerne County, 142 Pa. 108, it was said, Per Curiam (p. 113) that the act of March 31, 1876 P. L. 13, there under consideration, “is neither a local nor a special law, for the reason that it applies to all counties of a certain class, and that class created by the constitution itself.” In Wheeler v. Philadelphia, 77 Pa. 338 answering the suggestion that a classification was bad which included only one member of the class, it was said (p. 350) : “Classification does not depend upon numbers. The first man, Adam, was as distinctly a class, when the breath of life was breathed into him, as at any subsequent period. The word is used not to designate numbers, but a rank or order of persons or things.” Therefore, if the need arises for it, a classification which includes only one city or one county may be valid, if the conditions warrant it, and the constitution authorizes it.

The necessity for classification of the counties of the state, with respect to the courts, is clearly recognized in the constitution. Thus, speaking with reference to the state at large, in article Y, section 4, it is provided: “Until otherwise directed by law, the courts of common pleas shall continue as at present established, except as herein changed; not more than four counties shall at any time be included in one judicial district organized for said courts.” And in the next section it is provided that whenever a county shall contain 40,000 inhabitants, it shall constitute a separate judicial district with one judge; the legislature to provide for additional judges as the business of the district may require. Counties of less population shall be formed into single districts, or if necessary, may be attached to contiguous districts as the legislature may provide, subject of course to the limitation in section 4. By the same section the office of associate judge is abolished in counties forming separate districts. Section 9 directs that the judges of the courts of common pleas, learned in the law, shall be judges of the courts of oyer and terminer, quarter sessions of the peace, and general jail delivery, and of the orphans’ court. Section 22 requires that, in every county wherein the population shall exceed 150,000 the legislature shall establish a separate orphans’ court, and permits the establishment of such a court in any other county. These provisions apply to the state as a whole, with few exceptions.

But in section 8 the courts in the County of Philadelphia and in the County of Allegheny are treated as in separate and distinct classes. It is provided that these courts shall from time to time in turn detail one or more of their judges to hold the courts of oyer and terminer and the courts of quarter sessions of the peace, in such manner as may be directed by law. Again, by section 6, the jurisdiction and powers of the district courts in each county were abolished, and courts of common pleas substituted therefor. In the same section the separation of each of these counties iñto a distinct class, as to which the enactment of legislation appropriate for one was not thought suitable for the other, appears in the creation of four courts of common pleas for Philadelphia county, as against two in Allegheny county; and the line of separation and distinction between the two counties is further broadened by the requirement that in Philadelphia all suits shall be instituted in said courts of common pleas without designating the number of said court, the several courts to distribute and apportion the business among them in such manner as shall be provided for by rules of court. Upon the other hand, in Allegheny county no designation of the number of the court is required in bringing suit; and each court is given exclusive jurisdiction of all proceedings at law and in equity commenced therein. The fact of a distinct classification is further shown in section 7, which provides that in Philadelphia the prothonotary of all of said courts is to be appointed by the judges, and is to hold office for three years, subject to removal by a majority of the judges. In Allegheny county, the Prothonotary is not appointed by the judges and is therefore an officer to be elected by the people. Again, in section 12 it is provided that in Philadelphia there shall be established for each 30,000 inhabitants, one court, not of record, of police and civil causes, with jurisdiction not exceeding one hundred dollars; such courts to be held by magistrates whose term of office shall be five years; and the office of alderman is abolished. No such court is provided for Allegheny county, or for any of the other counties.

It will be noted that these sections of the constitution not only indicate a classification of counties, with reference to the courts, but many of the provisions require special legislation to carry them into effect, or such changes “as shall be provided by law,” to quote the phrase often used in various sections of the constitution. This makes clear the intention that the legislature should, as occasion arose, provide for further needs within and along the lines of classification indicated.

These extracts above noted, from the article of the constitution which deals with the judicial power of the commonwealth, seem to demonstrate the fact that by the terms of the constitution, a classification is made as to the creation of the courts, and the distribution of their powers, by which the county of Philadelphia is to be treated as one division, the county of Allegheny as another, and the remainder of the state as another, with certain distinctions based upon the population and other conditions of the various counties. Obviously, the constitution classified the county of Philadelphia, as being distinct from other parts of the state, for the very purpose of permitting legislation affecting the courts of Philadelphia county, without including other parts of the commonwealth where the conditions and needs of the people are different. The same is true as to Allegheny county. Each of these counties was given the right to stand in a class by itself, in so far as legislation affecting its courts is concerned. The question as to whether or not Philadelphia constitutes a judicial class, separate and distinct from the state generally, was before the Superior Court, in Com. v. Bell, 4 Pa. Super. Ct. 187. The question there was as to the power of the court of quarter sessions of Lawrence county to extend its term for an additional week. It was claimed that the power was given by the act of June 10, 1881, P. L. 113, which contained a proviso “that the provisions of this act shall not apply to cities of the first class.” The appellant contended that this proviso rendered the act special legislation and that it was therefore unconstitutional. Reeder, J., said (p. 193) : “The act is also clearly constitutional. The claim that the proviso excepting cities of the first class from its application renders the entire act unconstitutional because it is special legislation, is absolutely without merit. It is unnecessary for us to elaborate our opinion upon this question when the constitution itself makes a special and distinct class of the courts of cities of the first class.” Counsel for appellant in this case, is mistaken in saying that what was said in the case just cited as to the constitutionality of the act of 1881 was obiter dictum. The constitutional question was directly raised, and was passed upon by the Superior Court. True, that court considered the question to be so plain as to require no elaboration. See also Wilkes-Barre v. Meyers, 113 Pa. 395, where an act excepting from its provisions the city of Philadelphia (coextensive with the county of Philadelphia) was held not to be local because the constitution itself made the exception to the requirement that all laws should be general. “It must be general except as otherwise provided in the constitution,” was the statement; and Philadelphia was recognized as being classed by itself. The legislature is entirely warranted in following the constitutional classification. Speaking of its power in this respect, this court, in Wheeler v. Philadelphia, 77 Pa. 338, said (p. 349) : “But the 'power existed at the time of the adoption of the constitution; it had been exercised by the legislature from the foundation of the government; it was incident to legislation, and its exercise was necessary to the promotion of the public welfare.”

One new court of common pleas has been established in Philadelphia county, and two in Allegheny County since the adoption of the constitution. These courts were created by the legislature, and the constitutionality of the acts has not been questioned, although they specifically named the particular county in which the courts were created. The present act establishing the new county court for Allegheny county, can no more, be said to be local or special than were the acts which created new courts of common pleas in these two counties. Such legislation, which otherwise would undoubtedly be regarded as local, is saved because the constitution does make this classification, and the legislature as well as the courts must recognize it. Where the classification is created by the legislature, it may be necessary to inquire whether the distinctions in the subjects classified are real and proper, and are not created for the purpose of evading the constitution. But in the present case, the classification is that which appears in the constitution itself; and where it speaks, there can be no question. Holding, as we do, that the act before us deals with Allegheny county as specially classified by the constitution, the legislation cannot be regarded as local or special. This disposes of the principal contention, upon the part of appellant.

As to the provision of section 26, article Y, that all laws relating to courts shall be general and of uniform operation, it is evident that this requirement is fairly met when such laws are general and of uniform operation as applied to a particular class or grade of courts. This is consistent with the further requirement in the next clause, that “the organization, jurisdiction and powers of all courts of the same class or grade, so far as regulated by law, and the force and effect of the processes and judgments of such courts, shall be uniform.” It is clear that uniformity within the respective classes or grades of courts is what the constitution requires; otherwise, the end and aim of classification would be defeated.

The act under consideration provides for a new court of a different class or grade from any heretofore created. So long as there is but one court of this grade, the law regulating it is uniform in the constitutional sense. It is composed of one bench of judges whose number depends upon population. In the event that other courts of the same grade should be established, then all laws relating to that grade must be of uniform application.

Another point pressed, in the argument for appellant is that the creation of this new county court is prohibited by the last clause of section 26, which prevents the general assembly from creating other courts, to exercise the powers vested by the constitution “in the judges of the courts of common pleas and orphans’ courts.” It is contended that this means the powers vested in the courts, and not in the judges of the courts. Such a construction nullifies the plain inference to be drawn from the language of section 4, which is that, when directed by law, changes may be made in the common pleas. It is also in opposition to the provisions of section 1 of article Y, which expressly authorizes the legislature to establish from time to time other courts than those already created. As the court below in its opinion well says: “It would seem, therefore, that the true construction of this clause of section 26 is to be obained by taking its language literally, and holding that it applies only to the powers vested in the judges of the courts of common pleas; as, for example, the power of sitting in the oyer and terminer; but does not directly vest any powers in the courts of common pleas which may not be taken away by law.” Unquestionably certain powers were conferred upon the judges as such, and not upon the c'ourts in which they sat. In an earlier clause in section 26, there is a reference to the powers of the courts, and the contrast between the wording of this phrase and that which refers to the powers vested in the judges is significant and adds force to the argument that the constitution means precisely what it says when it prohibits interference with the powers vested in the judges, rather than with the powers of the courts. We are not at liberty to adopt a construction which disregards the exact words of this section, particularly when it would create an inconsistency with other sections of the constitution. We are bound to sustain a construction which will give effect to all provisions, if possible. The act of assembly before us creating the new county court does not divest the judges of the courts of common pleas or the orphans’ court of any of their powers. Further it should be noted that the act does not infringe in any way upon the powers or jurisdiction of the courts of common pleas or of the orphans’ court. Section 6 of the new act deals with the question of jurisdiction. Paragraph (a) confers jurisdiction in civil actions where the amount involved is limited; but it is only concurrent and not exclusive jurisdiction. This is clearly shown by paragraph (d) which provides that only the jurisdiction conferred in clauses (b) and (c) shall be exclusive. This means that the jurisdiction in civil cases conferred by clause (a) is not exclusive but concurrent within the limitations fixed. In other words, any suitor may still bring his action in the common pleas if he so prefers, but may bring it in the county court if he chooses. If the suit be brought in the county court it may be appealed to the common pleas. In such event the county court becomes the gateway to the common pleas; but, in either event, no matter whether the suit be originally brought in the common pleas or in the county court, the jurisdiction and powers of the common pleas are not abridged. The purpose and result can only be to relieve the common pleas of a part at least of the mass of comparatively petty litigation which, in this county, has almost blocked the wheels of justice. The dates upon the records of appealed cases that come before us, oftentimes speak eloquently of the need of such relief as the act in question affords. It was a condition and not a theory that confronted the legislature, and the need of relief was imperative. The method was a legislative question, to be exercised under the constitutional power of the general assembly to establish other courts. It might have created other courts of common pleas, which would have deprived the present courts of a portion of their business, and shared with them their powers. Instead of so doing, the general assembly chose a plan, apparently simple, effective and speedy, by which to weed out in the preliminary stages, much of the litigation which may, under the terms of the act, if desired by the parties, eventually be taken into the courts of common pleas.

We have no doubt as to the power of the legislature to create such a court, and to prescribe its method of procedure. It would unduly prolong this discussion to take up in detail every feature prescribed. We can refer only to some of the principal points against which criticism is directed. Counsel for appellant suggests that the language in section 6 (a) which is, “In all civil actions wherein only a money judgment is sought to be recovered, and in all actions of replevin in which the sum demanded or the value of the property replevined does not exceed six hundred dollars,” gives jurisdiction in all civil actions without limit as to amount. But this construction is not justified. Obviously, in punctuating, a comma was omitted after the word replevin; but this does not really render the meaning obscure. It is apparent that the qualifying phrase, “in which the sum demanded” refers to the actions brought to recover a money judgment, just as the words “value of the property replevined” appropriately refer to actions of replevin. The limitation of six hundred dollars applies to all the actions to which reference is made. This view is consistent with, and confirmed by the language of section 10, which requires defendant to set off a counter claim to an amount not exceeding six hundred dollars, or be barred. The suggestion that the law is not uniform, because the procedure provided for the county court differs from that which obtains in the common pleas, is without merit. It was intended that it should be more simple, and very properly so; that is one of the obvious advantages of the legislation. The practice as prescribed in clause c, section 7, providing that plaintiff’s statement of claim, not denied, shall be taken as true, is very similar to that prescribed by the practice act of May 25, 1887, P. L. 271, and by rule 8 of the courts of common pleas of Allegheny county. The validity and propriety of such a rule cannot be seriously questioned. It serves to bring the parties directly to the issue. Objection is also made to the provision for the service of writs of summons. But surely, if the legislature can create the court, it can provide for the service of its writs.

In section 8, provision is made for a jury trial on request of either party, and the payment of the jury fee in advance. It is suggested that this provision is an abridgement of the constitutional right of trial by jury. But under the long settled practice in this state, under the act of March 29, 1805, Sec. 13, 4 Sm. L. 237, a jury fee must be paid before judgment can be entered on a verdict. A verdict is of little value unless judgment be entered upon it, and it is but a slight step further to require payment of the jury fee before the trial, instead of before judgment. It might as well be argued that a plaintiff was denied the right to a jury trial because compelled to pay for the issuing and service of a summons, before such trial can be had. In Capital Traction Co. v. Hof, 174 U. S. 1, it is held that a requirement that a jury fee shall be paid, is not a denial or abridgement of the right of trial by jury. To the same effect is Bank of Columbia v. Okely, 17 U. S. 235. As illustrating the same principle, it may be noted that in McDonald v. Schell, 6 S. & R. 240, it was held that the act requiring the payment of costs before taking an appeal from an award of arbitrators, did not affect the right of trial by jury. See also Warren v. Com., 37 Pa. 45, where it is said (p. 52) that a provision requiring bond for appeal does not offend against the constitution.

The provisions as to set off contained in section 10 seem to be taken almost verbatim from the act of March 20, 1810, Sec. 7, 5 Sm. L. 161, which relates to setting off counter claims in suits before justices of the peace. The fact that a plaintiff appealing is required to enter security for costs only, though judgment for a set-off may be given against him, while a defendant must give security for debt, interest and costs, may, from the standpoint of the constitution, be a defect in the act; but, if so, it can be cured by amendment. But as to that, we do not now decide. It is not essential to the main purpose of the legislation. If deemed of sufficient importance, the question can be raised and decided after fuller argument upon the precise point.

The liens authorized under section 11 are acquired by entering judgments in the common pleas, practically in the same manner as they have been entered for over a century on transcripts from justices of the peace. Whether the transcript comes from one subordinate court or another, can make little or no difference as to the character of the lien. If the legislature has the power to create the court, it must also have the power to give force and effect to its judgments. The method here provided is not new, but is merely the adaptation of one which has existed in Pennsylvania since the act of March 20, 1810. The advantage of having all judgments which are a lien on real estate in the county, entered in one set of indexes is apparent. The provision of section 11 that the lien shall be removed on the “perfection of the appeal” or the granting of a certiorari operating as a supersedeas, is substantially like that of section 1 of the act of June 24, 1885, P. L. 160, giving judgments entered on transcripts from magistrates courts, the force and effect of judgments originally obtained in the common pleas, where no appeal or certiorari has been taken. As to the precise effect of this latter provision, we do not now deem it necessary to decide, preferring to leave it open for further consideration, if the need should arise. This feature, together with several other matters of detail to which reference has been made in the argument, is not essentially involved in the main purpose of the statute. Any such questions are of minor importance, and if they arise in the future course of business in the court, they can be more fully presented and argued in detail, and the precise questions involved can be more fully considered than at the present time.

That one who asks to have a law declared uneonstituitonal takes upon himself the burden of proving beyond all doubt that it is so, has been so often declared that the principle has become axiomatic. In Sharpless v. Mayor of Philada., 21 Pa. 147, Mr. Justice Black said (p. 164) : “There is another rule which must govern us in cases like this; namely, that we can declare an act of assembly void, only when it violates the constitution clearly, palpably, plainly; and in such manner as to leave no doubt or hesitation on our minds. This principle is asserted by judges of every grade, both in the federal and in the state courts.” And again in Erie and North-East R. R. Co. v. Casey, 26 Pa. 287, the same Justice said (p. 300) : “The right of the judiciary to declare a statute void, and to arrest its execution, is one which, in the opinion of all courts, is coupled with responsibilities so grave, that it is never to be exercised except in very clear cases; one department of the government is bound to presume that another has acted rightly. The party who wishes us to pronounce a law unconstitutional, takes upon himself the burden of proving, beyond all doubt, that it is so.” In Hilbish v. Catherman, 64 Pa. 154, Mr. Justice Agnew said (p. 159) : “We cannot declare this act unconstitutional unless we can say, in the language of Judge Tilghman, that ‘its violation of the constitution is so manifest as to leave no reasonable doubt:’ Com. v. Smith, 4 Binn. 117.” And Chief Justice Sharswood said, in Com. v. Butler, 99 Pa. 535 (540) : “To justify a court in pronouncing an act of the legislature unconstitutional and void, either in whole or in part, it must be able to vouch some exception or prohibition clearly expressed or necessarily implied. To doubt is to be resolved in favor of the constitutionality of the act.”

It may be conceded that some of the clauses of the constitution here involved, are obscure, and that some of the questions here presented are not free from difficulty; but that is not sufficient to justify striking down the statute. We may rest the consideration of this case upon the conviction that it has not been plainly shown that any vital feature of the statute under consideration offends against any specific provision, or any necessarily implied prohibition, of the constitution; and therefore the act must be sustained. The assignment of error is overruled and the judgment is affirmed.

Mr. Justice Moschzisker,

dissenting:

I fully realize the conditions in Allegheny County and the general demand for the relief sought to be afforded by the statute under consideration, and for that reason I have studied this case with every desire to sustain the Act, if possible, but it seems to me to be clearly in conflict with the organic law of the State.

While Philadelphia and Allegheny counties are distinguished from the rest of the Commonwealth in certain of the constitutional provisions pertaining to the judiciary which relate exclusively to them, yet such classification — if it can be so designated — is only for the specific purposes defined therein, and not for court purposes generally. The courts of those two great counties need the protection of the appropriate general provisions contained in the judiciary article as much as do the courts of the other counties of the State; the records of the development of this part of the constitution show that its framers intended such protection; and from the article as a whole one cannot but believe that the people must have so proposed when they adopted it.

To my mind section 26, Article Y, expressly and unequivocally forbids the creation of other courts to exercise the powers vested in the common pleas; for the powers of the courts are administered by the judges, and when the constitution refers to the powers vested in the judges, it plainly means to include all the powers given to the courts. In this connection it is interesting to note from the records of the constitutional convention that the prohibition against the creation of other courts to exercise the powers vested in the common pleas, was originally part of the particular section in reference to the courts of Philadelphia and Allegheny Counties and was removed therefrom and placed in section 26 so that the restriction might be general as to all common pleas courts; and further that the word “courts” was changed to “judges of the courts,” evidently to meet the expressed objection that the former was not sufficiently comprehensive to take in the criminal jurisdiction of such judges (See Debates, Vol. 6, p. 256, p. 507-9 and pp. 544-5). To refer to the “judges” as comprehending the “court” is a common method of expression which was intentionally employed by the draftsmen of the constitution (Vol. 6, pp. 544-5). It is quite certain that the expression would be thus accepted by the average man, and that the language used was so understood by the electors who finally passed upon and accepted the constitution cannot reasonably be doubted.

In my opinion the legislative authority to make changes by law in the jurisdiction of the present courts, and the power to create other courts, are always subject to the constitutional limitations contained in section 26. This Act not only gives to the court which it seeks to create many of the powers vested by the constitution in the common pleas, but it further violates the prohibitions of the section in question when it takes from the Quarter Sessions of Allegheny County and transfers to the new court all jurisdiction in non-support and certain other cases; thus in effect depriving the “judges of the courts of common pleas” sitting in the criminal courts of certain powers indirectly but nevertheless undeniably, vested by the constitution in such Judges as ex-officio judges of the latter courts (Sec. 9, Art. V.), and making the jurisdiction and powers of the Quarter Sessions of that county different from those of all other courts of the same class or grade in the State. For these reasons and for others which might be stated I am obliged to dissent.

Mr. Justice Mestrezat and Mr. Justice Stewart join in the dissent.


author: Mr. Justice Potter,

text:
    Gottschall, Appellant v. Campbell
    (No. 2).
    Argued Oct. 30, 1911.
    Appeal, No. 7, Oct. T., 1912, by plaintiff from decree of C. P. No. 2, Allegheny Co., July T., 1911, No. 614, dismissing bill in equity in case of M. H. Gottschall v. I. K. Campbell, J. Denny O’Neil and S. J. Toole, County Commissioners of Allegheny county, R. J. Cunningham, Controller of Allegheny county and George W. Foster, Treasurer of Allegheny county.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    January 2, 1912:
   Opinion by

Mr. Justice Potter,

This case was advanced, and argued with the appeal at No. 201 October Term, 1911, Gottschall v. Campbell (No. 1) 234 Pa. 347, in which an opinion has just been filed. As the same questions are involved, that opinion applies equally to this case, and the judgment is affirmed.