text:
    Pagnacco v. Faber.

      Mechanic’s lien — Parties—New contract — Intervention—Act of June 4, 1901, P. L. 431.
    1. The proceedings on a mechanic’s lien and the right of parties to intervene to protect their interests are regulated by statute. If one wishes to intervene he must pursue the manner pointed out in the statute; and if it does not authorize his intervention, or provide the manner in which he may intervene, the court is without authority to assist him.
    2. A person is not entitled to intervene as party in a mechanic’s lien case after judgment, under secs. 23 and 24 of the Act of June 4, 1901, P. L. 431, unless he is a “party having a lien against estate in or charge upon the property included in such claim,” or is one, “having an interest in the property described in the claim .... existing at the time of the claimant’s contract, or acquired subsequently thereto. ” A person has no right to intervene whose claim rests solely upon an equity which arose out of the conduct of 'the plaintiff entailing a loss upon the petitioner, if the plaintiff is permitted to enforce his lien.
    3. In such a case if it appears that the proposed intervenor is a corporation, and that the reputed owner was an officer of the corporation who took title to protect it as a surety for the mortgagees of the property against mechanics’ liens, such ownership does not give the corporation the right to intervene after judgment, inasmuch as it was its duty to assert any rights which it had as owner at the trial, and failing to do so is concluded by the judgment in favor of the plaintiff.
    4. Where a contractor under a written contract waives his right to file a mechanic’s lien, but subsequently after a change of ownership of the building, makes with the new owner an oral contract to finish the building, without any waiver of the right to file liens, the contractor as against the new owner, has the right to enforce a lien, although a trust company which was not a party to the proceedings had insured the completion of the building, relying upon the waiver in the original contract. In such a case even if the trust company should be permitted to intervene after judgment in favor of the plaintiff, it has no equity which it could enforce.

      Argued Jan. 14, 1909.
    Appeal, No. 284, Jan. T., 1908, by The Land Title and Trust Company, from order of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 5,063 M. L. D. (consolidated with Nos. 5,062 to 5,111 M. L. D.) discharging rule to intervene in case of Joseph Pagnacco v. Frederick F. Faber, owner and contractor, and J. Willison Smith, reputed owner.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition to intervene. Before Kinsey, J.
    In addition to the facts stated in the opinion of the Supreme Court and in the report 221 Pa. 326, it appeared that J. Willison Smith, mentioned as the reputed owner, was in fact an official of the trust company, and that he held the title for the trust company to secure the company.
    The court discharged the rule .to intervene.

      Error assigned was order discharging the rule.

      John G. Johnson, with him Edward Brooks, Jr., and Frederick J. Geiger, for appellant. —
    The Land Title and Trust Company has an equity which should estop the claimant from maintaining his liens to the prejudice of the title company: Wyss-Thalman v. Beaver Valley Brewing Co., 216 Pa. 435.
    The Land Title & Trust Company is entitled to intervene: Este v. Penna. R. R. Co., 13 Pa. Dist. Rep. 451.

      G. Von Phul Jones, for appellee. —
    The petitioner has no interest in the properties affected by the liens such as entitles it to intervene: Watt Bros. & Co. v. Eckels, 11 Pa. Dist. Rep. 570.
    After final judgment it is too late for petitioner to ask leave to intervene, even if it had that right while the suit was pending.
    Petitioner is concluded by the judgment entered in this case because it conducted the defense: Strayer v. Johnson, 110 Pa. 21; Hostetter v. Pittsburg, 107 Pa. 419; Peterson v. Lothrop, 34 Pa. 223; Deeds v. Imperial Brick Co., 219. Pa. 579.

      March 8, 1909:
    The rule that what has been judicially determined shall not again be made the subject of controversy, extends to every question in the proceedings which was cognizable: Nace v. Hollenback, 1 S. & R. 540; Himes v. Jacobs, 1 P. & W. 152; Head v. Meloney, 111 Pa. 99; Hartman v. Pittsburg Incline Plane Co., 2 Pa. Superior Ct. 123; Rauwolf v. Glass, 184 Pa. 237.
    A judgment or decision in rem is binding and conclusive on all the world: Harmer v. Griffith, 1 Grant, 193; Coates v. Roberts, 4 Rawle, 100; Millcreek Township v. Reed, 29 Pa. 195; Whitaker’s Estate, 10 W. N. C. 106.
    The testimony shows that the petitioner has no equities entitled to protection and has met with no losses, which can be attributed to the conduct of plaintiff: Wheeler v. Equitable Trust Co., 206 Pa. 428.
   Opinion by

Mr. Justice Mestrezat,

The facts out of which this controversy arises will be found in the opinion of the court in Pagnacco v. Faber, 221 Pa. 326, which was heard and decided a year ago. Subsequent to that decision, The Land Title and Trust Company, the appellant here, presented its petition to the court below and, for the reasons therein set forth, prayed the court to grant a rule upon the plaintiff to show cause why it should not intervene as a party defendant, and why the claims of the plaintiff should not be postponed to the rights of the petitioner, and why the said claims should not be legally or equitably disallowed as claims against the property. The petition was dismissed and the petitioner has taken this appeal.

It is claimed on the part of the appellant that under the facts of the case it has an equity which should estop the plaintiff from maintaining his liens to its prejudice. This equity, it is claimed, “arises out of Pagnacco’s contract with Nyce and Pagnacco’s bond to the title company, and is that the title company shall hot suffer a loss by reason of Pagnacco’s filing liens” against the property. It is contended that by reason of the contract and the bond given to the title company, Pagnacco should not be permitted to file these liens to enforce his claim for work and materials to the detriment or loss of the title company which insured the mortgagees of the property against “ actual losses by reason of unfiled mechanics’ liens and municipal claims and the failure to complete the buildings within eighteen months from the date thereof.” The plaintiff successfully resisted the petitioner’s application to intervene in the court below, and contends here that it has no right to intervene and no equity against the plaintiff which justifies its intervention.

The case was here before on appeal by the plaintiff. The action was a scire facias on a mechanic’s lien against Faber, owner and contractor, and Smith, reputed owner. Pagnacco entered into a written contract with one Nyce to do the stone work and make the excavations in the erection and construction of buildings on certain lots of ground in the city of Philadelphia, and in the contract expressly waived the right to file any liens against the property. After Pagnacco had performed certain work and furnished certain materials Nyce assigned his interest in the property to Faber. Pagnacco, alleging that Nyce had not paid him in full for the work and materials he had furnished under their contract, refused to continue his work after the property had passed to Faber until the latter had agreed to pay him for the work and materials he would furnish thereafter. Subsequently, Pagnacco filed a lien against Faber as owner and contractor and against Smith as reputed owner to enforce a claim for work done and materials furnished under his contract with Faber. He alleged that the work was done and the materials were furnished,'not under the original contract with Nyce but under the subsequent oral contract with Faber after the latter had become the owner of the premises. This contention was sustained by the verdict of a jury. The trial court, however, set aside the verdict and entered judgment for the defendant on the ground, as stated in the opinion of this court, that inasmuch as the plaintiff under the contract with Nyce had waived his right to file a lien, and had given bond to protect him against all such liens, which bond Nyce had assigned to the Land Title and Trust Company, on the strength of which the latter had incurred obligations prior to the purchase by Faber, the plaintiff was equitably estopped from setting up such right to file a lien, notwithstanding his contract with Faber. This court reversed that judgment holding, inter alia, that “the company had the right, under the twenty-fourth section of the Act of 1901, to intervene and assert its equities if it chose to do so; but these could only be asserted by itself and not by another.” We directed judgment to be entered on the verdict.

The proceedings on a mechanic’s lien and the right of parties to intervene to protect their interests are regulated by statute. If one wishes to intervene he must pursue the manner pointed out in the statute; and if it does not authorize his intervention or provide the manner in which he may intervene, the court is without authority to assist him. In this case the Land Title and Trust Company, the petitioner, relies on secs. 23 and 24 of the mechanics’ liens Act of June 4, 1901, P. L. 431, as conferring upon the court the authority to grant it permission to intervene and assert its alleged equity against the right of the plaintiff to enforce his lien and judgment against the property. It is apparent, however, we think, that neither of these sections authorizes the appellant’s intervention.

This application was made after a judgment had been obtained on a scire facias on the lien. The twenty-third section permits the intervention of an interested party in such case, but the party seeking to intervene must be a “party having a lien against estate in or charge upon the property included in such claim.” It cannot be seriously contended that the Land Title and Trust Company, the petitioner, is a party within this provision of the statute. It has no lien against the property nor charge upon it, and hence this section of the statute does not authorize the court to permit the title company to intervene.

We think it equally clear that the petitioner has no standing to claim the right to intervene under the twenty-fourth section of the statute. The party authorized to intervene under that section is one “having an interest in the property described in the claim .... existing at the time of the claimant’s contract or acquired subsequently thereto.” The petition filed by the title company for leave to intervene does not show that it was, at any time, the record owner of or held a valid title to the property, the subject of the plaintiff’s lien. The company does not show that it is even a mortgagee, or that it ever had such interest in the premises as brings it within this section of the statute. The words of the statute manifestly contemplate that the party entitled to intervene under these sections must have some estate or title in the property that will be affected injuriously by the enforcement of the lien. Hence, the act gives such party a right to “intervene as a party defendant and make defense thereto with the same effect as if he had been originally named as the defendant in the claim filed.” There is nothing set forth in the petition of the title company which would bring it within the provisions of this section of the statute. Its right to intervene, as it claims, rests solely upon the equity which arises out of the conduct of the plaintiff, entailing a loss upon the petitioner if he is permitted to enforce his lien. This equity cannot by any reasonable interpretation of the statute be held to mean “an interest in the property described in the claim.” This is so manifest that further discussion of the proposition is unnecessary.

We do not think that Smith’s ownership of the property can avail the Land Title Company in its application now to intervene and assert its alleged rights against the plaintiff. If by reason of Smith’s ownership the title company has “an interest in the property described in the claim” or “an estate in the property included in such claim ” it had the same rights and interests in the property prior to and at the time of the trial on the scire facias on the lien filed by the plaintiff. If it was an owner or had an interest in the property liened, it was incumbent upon it to assert its rights as such owner or its equities arising out of such ownership, and failing to do so it is concluded by the judgment in favor of the plaintiff. If it was the beneficiary or real owner under Smith, it should, as suggested in the opinion of the court when the case was here before, have intervened and asserted its rights and equities against the claim of the plaintiff. If “an officer of the company” held title to the property liened “for its protection,” then the title company, the petitioner and the appellant here, was a party defendant in the action tried on the scire facias on the lien and was required to assert its rights in or against the property which was the subject of the plaintiff’s lien. The Smith title cannot now give it an interest or estate in the property so as to bring it within the act of 1901 and enable it thereby to intervene in the proceeding.

If, however, the title company was permitted to intervene we cannot see that it could succeed as against the plaintiff’s judgment. By the terms of the contract between the plaintiff and Nyce, it is conceded that no valid lien could have been filed by the plaintiff against the property for work and materials furnished under that contract. The appellant here alleges that the inducement to assume liability on the title policies was the plaintiff’s agreement with Nyce not to file a lien and his bond to the latter for the faithful performance of their contract. But the lien which the plaintiff did file and which this court has sustained was for furnishing work and materials under another and different contract made, not with Nyce, but with his successor in title to the premises. Plaintiff’s written contract with Nyce did not prevent the former from filing a lien for work and materials furnished under a subsequent contract with another party to whom the title to the premises had passed from Nyce, nor did the bond given by Pagnacco to Nyce obligate the former to perform the oral contract with Faber. There was no provision in the oral contract with Faber prohibiting the plaintiff from filing a lien, and this court has held that he was entitled to a judgment upon the lien entered under that contract. If that judgment is valid against Faber, the present owner of the property, and Smith, the reputed owner, and we must assume that it is the alleged equity of the petitioner arising out of the former contract and the bond to Nyce is not such “conduct” as brings the plaintiff within sec? 15 of the statute and equitably estops him from enforcing his lien. The single question here, if the title company was permitted to intervene, would be its right to have priority in payment of its claim over the judgment which the plaintiff has obtained after a trial on a scire facias issued on a lien filed against Faber and Smith for work and materials furnished under the oral contract with Faber, the owner of the property liened. By this judgment, it is judicially ascertained that the plaintiff furnished the work and materials as claimed by him in and about the construction of the houses, under a valid contract with Faber; that he was entitled to a lien therefor; and that a judgment thereon was properly entered. If there was no matter set up at the trial which could “equitably estop the claimant” from filing a lien or obtaining a judgment thereon, we are unable to see that anything averred in the appellant’s petition discloses any equity “why said claims (of plaintiff) should not be legally or equitably disallowed as claims against the property” of the defendant Faber. ’

The assignments are overruled and the order of the court below is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Thewlis v. Fenton, Appellant.

      Will — Devise—Description of real estate.

    Testator by deed acquired in 1869 two lots of ground, one fronting on A street and the other on B street. These lots were adjacent, and formed an L. In 1871, testator acquired another lot on A street adjacent to the first lot on A street, and extending in depth to the B street lot. In 1878 testator made his will by which he charged the payment of an annuity for his mother upon “the two properties on the southwest side of A street conveyed to me ” in 1869 and 1871. In another clause he gave to his wife for~life “my two properties hereinbefore mentioned,” subject to the annuity for his mother. By another clause he gave and devised to his daughter and his adopted daughter “my said two before mentioned properties,” after the termination of the wife's life estate. At the time the will was made a building was erected on the B street lot, and two on the A street lots. These two buildings were immediately contiguous to each other, and both of them extended over on the B street lot two feet and two inches. Held, that testator intended to charge all three of the lots with the annuity to his mother, and to devise them as one property to his daughter and his adopted daughter.
    Argued Jan. 15, 1909.
    Appeal, No. 279, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1908, No. 4,163, for plaintiff on case stated in suit of Theodosia Thewlis v. Eliza Fenton.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine title to real estate.
    Willson, P. J., filed the following opinion:
    We think it possible, without going into a minute statement of the facts and the dimensions of lots of ground, to set out the essential matters involved in this case so that our reasons for disposing of it as we do will clearly appear.
    By a conveyance dated March 8,1869, John W. Thewlis acquired title to two lots of ground, one fronting on Pulaski avenue and the other on Linden street. These taken together, inclosed on two sides another piece of ground situated at the corner of those streets, and this belonged to Jane Thewlis, the wife of John W. Thewlis.
    The Linden street lot of the latter extended about 103 feet in depth, and his Pulaski avenue lot had a depth extending to the line of that on Linden street. Subsequently, by conveyance dated November 8,1871, John W. Thewlis took title to another lot of ground on Pulaski avenue adjacent to that previously mentioned, and extending in depth to the said Linden street lot.
    In the year 1878, John W. Thewlis made and executed a will, in the second clause of which h.e bequeathed to his mother for life the sum of $104 annually, and charged the payment of this annuity upon “the two properties on the southwest side of-Pulaski avenue .... conveyed to me .... by deeds dated March 8th, A. D. 1869, and November 8th, A. D. 1871.” In the third clause of the will he gave his wife Jane, for life,“my two properties hereinbefore mentioned,” subject to the said annuity. By the fourth clause he gave and devised to his daughter, Eliza Fenton, the defendant, and to his “adopted daughter, Theodosia Thewlis,” the plaintiff, “my said two before-mentioned properties” and after the termination of the life estate before described. This will, together with a codicil, which, however, does not have any relation to the present case, was admitted to probate in 1904.
    At the time when the will was made a three-story brick house had been erected on the Linden street lot, and two others of like character, one on each of the Pulaski avenue lots, had been constructed. These two buildings last referred to were immediately contiguous to each other, and both of them extended over on the Linden street lot two feet and two inches. The building erected on the Pulaski avenue lot first acquired also extended five feet into the other Pulaski avenue lot.
    After the will was made, and prior also to the making of the codicil in 1904, Thewlis had acquired other real estate. This, with the properties already described, were assessed for the year 1904 for about 140,000. None of this newly acquired real estate was specifically devised by the terms of the codicil, and the executors named therein were given full power to sell all the testator’s real estate.
    Thewlis died in 1904, after the death of his mother, and leaving to survive him his wife and his daughter and his adopted daughter, the last-named two being the parties to this action.
    The foregoing statement will show how the question at issue arises. It will be observed that by the provisions of the will there was a devise to the plaintiff and defendant, as tenants in common, of the “said two before-mentioned properties,” and those properties were previously in the will described as “ situate on the southwest side of Pulaski avenue,” and as having been conveyed by the deeds of the certain dates before stated in this opinion.
    There is in the will no express mention of the Linden or Penn (as it is now called) street property. Nevertheless, the plaintiff claims that the devise to her and to the defendant was intended to cover that property as well as the other two which physically front on Pulaski avenue. The claim of the defendant is that the testator died intestate as to what is called the Linden or Penn street lot.
    The whole controversy is embraced in the two opposing claims as just stated.
    The question thus raised must be settled by the exercise of a sound judgment, in view of all the circumstances of the case, as to what the testator meant to cover by his description of the property devised. There is no rule of law specially applicable to the case to which we can refer and say that it should control our disposition of it. The fact that, if the defendant’s theory is correct, the testator would have died intestate as to the property in dispute, may help somewhat to a proper solution of the question. Undoubtedly, it is natural to suppose that when Thewlis was engaged in preparing for a disposition of his property after his death, he would have embraced the whole of the property in his directions.
    In the particular case in hand, this circumstance ought perhaps to have considerable weight, for the reason that the testator appears to have had his whole family in mind, and to have made careful discriminating provisions for their benefit; Apparently, also, he put his daughter and his adopted daughter upon the same plane of merit. Besides, the property in dispute was so physically related to the other lots, about which there is no dispute, that the testator may well have thought that he was disposing of his entire real property by the language employed by him.
    Át the same time, it must be conceded that the inferences to be drawn from the absence of any residuary clause are not inflexible, however much they may aid the mind in reaching a conclusion upon other grounds.
    We must, therefore, look to such other features of the case as are presented to us to see if possible whether anything appears of sufficient significance to enable us to arrive at a fair, sound judgment as to just what the testator meant by his description of the property. We find, then, that while it is true that he acquired the properties on Pulaski avenue and on Linden street as three separate lots, he practically treated them as one piece of property. The fact that in configuration the lot, taken as a whole, resembled the letter “L” would amount to little one way or the other.
    There are well-known instances in this city of properties so shaped, that are described as situated on one only of the two streets upon which one or the other leg of the lot faces.

      What we ought to try to reach is the thought of the testator —what he regarded the two Pulaski avenue properties as being. What was it that he intended to charge with the payment of the annuity given to his mother? Did he mean to put the burden upon two lots that had buildings upon them, which buildings extended over upon the so-called Linden street lot, and might therefore be very uncertain sources of income, or did he mean to place the charge upon the entire property which, in the erection of buildings, he had made use of as a unit, and which presumably was an open, undivided tract of land to the eye? It seems natural to answer this question in a way that would tend to carry out most effectually the testator's purposes as they appear in his will. It is undoubtedly true that we have no right to make a will for him by a forced interpretation, but we have the right, and it is our duty if possible to give such effect to the words used by him as will carry out what we believe to have been his intentions.
    On the whole case, we have reached the conclusion that the testator in his will treated the entire property which he had acquired in 1869 and 1871 as a unit, just as he had dealt with it in the erection of buildings, and that he naturally described it with reference to the frontage on Pulaski avenue, although a portion of the lot faced upon Linden street. This we say, notwithstanding the will, which was evidently drawn by a lawyer, refers to two lots on the former street and to the conveyances under which they were acquired. He might easily have thought of these properties as embracing other contiguous ground that he had consolidated with them. Any other construction would seem to defeat the manifest, and one of the main, purposes of his will.
    Coupling the circumstances referred to with the absence of a residuary clause, we regard ourselves as justified in holding that the plaintiff and defendant are tenants in common of the property called the Linden or Penn street lot. Such a disposition of the case is not only legal, but it is eminently equitable. The defendant may well be satisfied with the large estate which has come to her under the intestate law.
    Judgment will be entered in favor of the plaintiff.

      March 8, 1909:

      Error assigned was the judgment of the court.

      Joseph H. Taulane, of White, White & Taulane, with him Ernest E. Prevost, for appellant.

      N. Dubois Miller, of Biddle, Paul, Miller & Jayne, with him, H. Alan Dawson, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the learned president judge of the common pleas.


author: Mr. Justice Mestrezat,

text:
    Norbeck v. Philadelphia, Appellant.

      Negligence — Municipalities—Repair of streets — Independent contractor ■ — Retention of municipal control.

    1. A municipality is not liable for the negligence of an independent contractor while engaged in the construction or repair of a street of which he has the exclusive control or charge, but to relieve the municipality from liability in such cases the accident must be the result of the negligence of the contractor, and he must have such exclusive control of the street where the accident occurs as to authorize him to prohibit the use of it by the public.
    2. Whenever a municipality directs a street to be kept open and thereby invites the public to use it, an obligation is imposed on the municipality to see that it is maintained in a reasonably safe condition for travel.
    3. Where a municipality lets a contract to an independent contractor to widen and raise the grade of a street, but provides that a certain portion of the street shall be continuously kept open to the public during the progress of the work, and the municipality retains the control of such open portion by its police and inspector but permits a dangerous hole to continue in such portion for three months, and a person is injured by reason of such obstruction, the city is liable for the injuries sustained.
    Argued Jan. 18, 1909.
    Appeal, No. 184, Jan. T., 1908, by-defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1906, No. 1,883, on verdict for plaintiff in case of Sadie Norbeck v. City of Philadelphia.
    March 8, 1909:
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for 16,000. Defendant appealed.

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

      Thomas D. Finletter, assistant city solicitor, with him Harry T. Kingston, assistant city solicitor, and J. Howard Gendell, city solicitor, for appellant. —
    Where the city has no voice in the manner of the performance of the contract but only in its results, it is better policy to leave the contractor in full control of the scene of operations and of the work, and where he is so in full control his employer is not liable, but he is: Painter v. Pittsburg, 46 Pa. 213; Reed v. Allegheny, 79 Pa. 300; Mahanoy Township v. Scholly, 84 Pa. 136; Erie v. Caulkins, 85 Pa. 247; Eby v. Lebanon County, 166 Pa. 632; Heidenwag v. Philadelphia, 168 Pa. 72; Burger v. Philadelphia, 196 Pa. 41; Rimby v. Philadelphia, 208 Pa. 119; Harvey v. Chester, 211 Pa. 563; Long v. Philadephia, 212 Pa. 125.

      Thomas Learning, with him William J. Lawson, for appellee. —
    The city was liable: Burger v. Philadelphia, 196 Pa. 41; Rimby v. Phila., 208 Pa. 119; Harvey v. Chester, 211 Pa. 563.
   Opinion by

Mr. Justice Mestrezat,

In February, 1906, the city of Philadelphia was engaged in improving South Broad street from Moyamensing avenue to League Island. The work had been let to a contractor and consisted partly in widening the street from eighty feet to 160 feet; in changing the grade so as to raise the street from twelve to fifteen feet above the surrounding country; repaving and macadamizing the cartways and sidewalks, constructing sewers, culverts, inlets and drains, etc. Among the specifications attached to and a part of the contract was the following: “The contractor will be required to keep a portion of the street open at all times during the progress of the work, of sufficient width to accommodate travel, and at no time shall the road be closed to travel, but a good, safe and sufficient roadway shall at all times be maintained open to public use.” Broad street is the only public highway leading from the heart of the city to League Island, and hence the necessity for keeping it open for public travel during the time the improvement was being made. It was traversed by trolley cars, carriages, supply and delivery wagons, automobiles and other traffic between the city and League Island. The work of improving the street was begun at Moyamensing avenue and progressed south towards League Island. In making the improvements, the contractor raised the level of the street in three longitudinal strips. He first constructed an embankment on the west side of the street and on it the trolley tracks were placed and a plank road was constructed sufficiently wide to permit a wagon to pass one way. The south-bound traffic used this roadway while the northbound traffic used the lower grade of Broad street. A similar embankment was then built on the east side of the street, and when completed was used by the north-bound traffic. The two embankments having been finished, the intervening space on the street was filled in to bring'the whole street to the proper level.

On February 15, 1906, Norbeck, the plaintiff’s husband, was driving a two-horse, four-wheel brick wagon on South Broad street where it was being improved. A companion was with him and they both sat on a high seat in the front part of the wagon, the plaintiff being on the right, and driving the horses. They proceeded south almost to League Island and after discharging their load east of Broad street, they returned to the street and drove north. The Pennsylvania railroad crosses Broad street a short distance south of the place where the accident occurred, and since the completion of the improvement the tracks on the street are crossed by an overhead bridge. The plaintiff claimed and introduced evidence to show that her husband crossed under the bridge and while driving on the roadway on the east embankment north of the bridge, the right front wheel of the wagon was precipitated into a hole, he was thrown to the ground, and the wheel of the wagon passed over him killing him instantly. The plaintiff’s witnesses testified that this hole was four feet long, two feet wide and hub deep, that it was 400 feet north of the bridge, and had existed there for at least three months. They also testified that at the time of the accident the hole was filled with slush of the color of the road, and was not easily seen or distinguished. The plaintiff contended that at the time of the accident her husband was driving carefully, that the road was in a good, solid condition, except the hole which caused him to be thrown from the wagon; and that the part of the road where the accident occurred had been opened and used by the public for at least six months prior to the time Norbeck was killed.

The city’s position on the trial was and its testimony tended to show that the plaintiff’s husband in driving north crossed the bridge over the railroad tracks and then drove northeast to the eastern embankment, a distance of about 150 feet north of the bridge, and as he turned on to the embankment he was thrown to the ground and killed. It was claimed that at the time of the accident Johnson, the companion of the plaintiff’s husband, was driving, that the latter was standing up in the wagon with his hands in his pockets, and that the team was going at a rapid rate. It is contended by the city that the place where the accident occurred was not on a completed or finished part of the highway and that there was no such hole as described by the plaintiff’s witnesses; that -if there was a hole which caused the accident it was simply a depression and incident to the change in the grade and the width of the street; that at the time and place of the accident the work was in active progress and the contractor alone was in charge and controlled the whole operation.

The case was submitted in a very fair and careful charge to the jury and they found in favor of the plaintiff. It is, therefore, established by the verdict that the accident occurred on the roadway on the east embankment at a point 400 feet north of the bridge, that the road at -that point had been opened to the public for several months and that a dangerous hole had existed there for at least three months prior to the accident. The verdict also negatives the contention of the city that the accident occurred 150 feet north of the bridge where the roadway was under construction and not completed.

Under the facts as admitted or found by the jury, it is apparent that the court would have committed reversible error had it affirmed the defendant's point and withdrawn the case from the jury. The point was submitted on the theory that the doctrine of Painter v. Pittsburg, 46 Pa. 213, was applicable to the facts of this case. The contention of the city is thus stated in its printed brief: “That Broad street, the scene of the accident, was, under the contract, in the absolute and entire control of the contractor and not of the city; that the roadway upon the eastern embankment where the accident occurred and the embankment itself, were temporary in character, necessarily so from the character of the contract and the work, and that the embankment and the road or way upon it were not in any sense a street or highway accepted by the city as such and over which it could exercise a control or upon which it could enter to make or direct necessary repairs to keep it in good condition.”

It is manifest, we think, that the doctrine of Painter v. Pitts-burg, 46 Pa. 213, can have no application to the facts developed at the trial of this case. The rule established by that and kindred cases is that a municipality is not liable for the negligence of an independent contractor while engaged in the construction or repair of a street of which he has the exclusive control or charge. But to relieve the municipality from liability in such cases the accident must be the result of the negligence of the contractor, and he must have such exclusive control of the street where the accident occurs as to authorize him to prohibit the use of it by the public.

In the case at bar, the agreement with the contractor did not place him in the exclusive control or charge of Broad street where the improvements were being made. Nor was it provided therein that the public could not use that part of Broad street. On the contrary, it was distinctly stipulated, as we have seen, that the contractor should keep a portion of the street open at all times of sufficient width to accommodate travel, and maintain a good, safe and sufficient roadway for public use. This provision conclusively shows that it was the intention of the city that the street should be open to use by the public, and the duty of keeping it open for such use was imposed on the contractor by his agreement. It was in pursuance of this agreement that the street was kept open for public use, and the contractor could not close it or assume exclusive control over it during the progress of the work. As further evidence of the intention of the city not to place the exclusive control of the street in the' hands of the contractor, it was under the surveillance of its policemen, and it had an inspector who inspected the work and reported daily to the city. He testified that his duties required him to see that the material was properly placed, to look out for ruts, to have holes filled up if any existed, and to see that the general traffic was in good shape.' It is, therefore, clear that the city in letting the contract for the improvement of the street did not, during the progress of the work, turn over the street to the exclusive control of the contractor so that he could exclude the public from its use; but it reserved the right to compel the contractor to keep a good, safe and sufficient roadway on some part of the street open at all times for public use during the progress of the work. It had the authority and it was the duty of the city to enforce performance by the contractor of this stipulation of the agreement, and that it intended to do so appears from the fact that its own official kept close supervision over the work and over the roadways intended for use by the public. Whenever a city or municipality directs a street to be kept open and thereby invites the public to use it, an obligation is imposed on the municipality to see that it is maintained in a reasonably safe condition for travel. If this duty is neglected and injury results, by reason of a defect in the street, the municipality is not relieved by giving notice to one who is primarily liable as between him and the municipality: Wyman v. Philadelphia, 175 Pa. 117.

The findings of the jury under the instructions of the court, .establishes the fact that Norbeck was not on a part of the street where the work was in progress and uncompleted, but that he was driving on a. finished and completed part of the work, assigned by the contractor for use by the public. The evidence submitted to the jury was amply sufficient to sustain that finding. The hole which caused the accident was not an incident to the improvement being made, nor did it result from defective construction by the contractor, but was caused by the use of that part of the roadway by the public. That it was a very dangerous obstruction is apparent. Its size as well as the fact that it was filled with a slush of the color of the dirt of the roadway which prevented it being easily seen or discovered leaves no doubt of its dangerous character. It had been there, according to the. evidence, at least three months, and the jury found that the city officials had constructive notice of its existence. It was the duty of the city’s inspector, as he testified, to discover and have such dangerous obstructions removed, and this hole certainly called for immediate action by him. It was a menace to every traveler upon that roadway, and it was clear negligence for the city to permit it to remain there. It had the authority to require the immediate removal of the obstruction by the contractor, and if he neglected to remove it the city should have had it done. Its failure in this respect constitutes negligence for which it is liable in this action.

We are of the opinion that the case was for the jury, and it was properly submitted by the learned trial judge.

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


text:
    Snyder, Appellant, v. Smyth.

      Equity — Bill for account — Findings of fact — Review.
    On a bill in equity for an account to determine what interest the defendant in an execution had as a partner in a building operation, a finding of the court below that the defendant was not a partner and that he had no interest, will not be reversed unless error clearly appears.

      March 8, 1909:
    Argued Jan. 14, 1909.
    Appeal, No. 336, Jan. T., 1908, by plaintiff, from decree of C. P. No. 5, Phila. Co., Sept. T., 1907, No. 5,009, dismissing bill in equity in case of W. Riehle Smith Snyder v. Joseph J. Smyth and Wilson R. Ker.
    Before Fell, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account. Before Ralston, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      Henry B. Hodge, for appellant.

      John G. Johnson, with him John McConaghy, Jr., for appellee.
   Per Curiam,

The bill in this case was for an account and was filed by the purchaser at a sheriff’s sale of whatever interest the defendant in the execution had as a partner in a building operation. The court found that he was not a partner and that he had no interest. The correctness of this finding depends on the credibility of witnesses, of which the court who saw and heard them had a much better opportunity to judge than we have. What has been so often said, that the findings of fact by the court will not be reversed unless error clearly appears, is especially applicable to this case.

The decree of the court dismissing the bill is affirmed at the cost of the appellant.


text:
    Gibbons’s Estate.

      Will — Personal property — Restricted meaning — Cash.
    Testatrix having cash in bank at the time of her death, and leaving to survive her two sons and two daughters, gave by her will articles of jewelry to each of her two daughters, and then gave and bequeathed equally to the daughters all her “household goods, wearing apparel and personal property.” In the following clause she directed her executors to sell the remainder of her estate either at public or private sale for cash, and divide and distribute the same “equally among my four children,” naming them. Held (1), that the words “personal property” should be given a restricted meaning, and limited merely to articles of a personal character, of the same species as those mentioned in the preceding part of the gift to the daughters; (2) that the words “personal property” as used in the will did not include cash in bank; and (3) that the sons were entitled to share equally with the daughters in the distribution of the cash in bank.
    Argued Jan. 15, 1909.
    Appeal, No. 224, Jan. T., 1908, by Catherine A. Connor, from decree of O. C. Phila. Co., dismissing exceptions to adjudication in Estate of Catharine Gibbons, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication of Penrose, J.
    From the record it appeared that testratrix died December 23, 1903, leaving to survive her two sons and two daughters. At the time of her death she had cash on deposit SI,750.39, and personal effects such as jewelry and furniture. She also possessed real estate. By her will she directed, inter alia, as follows:
    “Fifth. — I give and bequeath my gold watch and chain and piano to my said daughter, Catherine A. Connor, and I give and bequeath my diamond earrings to my daughter Cecilia C. Curran and all my household goods wearing apparel and personal property I give and bequeath equally to my said daughters Catherine A. Connor and Cecilia C. Curran.
    “ Sixth. — I order and direct my Executors hereinafter named to sell the remainder of my estate either at public or private sale for cash and divide and distribute the same equally among my four children, Viz.: John J. Gibbons, Catherine A. Connor, Cecilia C. Curran and Charles J. Gibbons.”
    The auditing judge distributed the cash in the bank amongst the four children, share and share alike.
    Catherine A. Connor excepted to the adjudication.
    Anderson, J., filed the following opinion:
    Very little can be said in addition to the opinion of the auditing judge. While it is true the words “personal property” prima facie include all except the real estate, it has been held that where such general words are used or placed in the same sentence with other words, describing a peculiar kind of property, such as household furniture, articles of jewelry, etc., and in such a connection as to show that the general words convey to the mind not the intent to give them their widest meaning, but simply as com], ehending the character of things given in the other part of th sentence, their meaning will be so restricted: Lippincott’s App., 173 Pa. 368, cited by the auditing judge; Rawlings v. Jennings, 13 Yesey, 39; Hotham v. Sutton, 15 Vesey, 319; Bouvier’s Law Diet., Title “Effects;” Roper on Legacies, 210.
    Great stress was laid at the argument upon the fact that in the next clause of the will testatrix directed the rest of her property to be sold, and the cash distributed among her four chiidren, and as the fund in dispute was already cash, it could not have been intended to be carried by this language. To our minds, however, these two items of the will taken together show clearly that it was not the intention of the testatrix, in her gift to her daughter, to include money, as it is evident her thought was to turn into money whatever estate she had, except her personal belongings, and to divide the cash thus produced among her children equally. While it is true a conversion was not necessary where a part of the property was already in money, yet it is not inconsistent with the thought that it should all be divided equally; the general intent being to sell that which was required to be sold and to add to it the money already on hand. As was said by Judge Gordon, in Appeal of the Boards of Missions, 91 Pa. 507, “What is this after all but a mere direction to sell what is salable? And if part of that estate comes to the executors in the shape of money, what then? It need not be sold, that is all. The testator, for the benefit of his donees, directed that his entire residuary estate Should be converted into money, but if part of it is found in the shape of money, it needs no conversion, and surely not the less does it pass to the legatees.” This case is similar to the present one, in the fact that the fund was realized after the death of the decedent, and is a complete answer to the argument that testatrix could not have intended to include that part of the estate already in cash.
    March 8, 1909:
    The exceptions are dismissed.

      Errors assigned were in dismissing exceptions to adjudication.

      Daniel C. Donoghue, for appellant. —
    The testator did not intend to order and direct her executors to sell cash for cash, at public or private sale, nor is it reasonable to assume that she intended a debt due her by her son to be sold for cash at public or private sale. She had, in the fifth paragraph of the will, already used apt words for the disposition of her cash and debts due to her: Hunter’s Est., 6 Pa. 97; German v. German, 27 Pa. 116; Heineman’s App., 92 Pa. 95.
    It is certainly an established canon of construction that in doubtful cases it is safest to adhere to the technical meaning of words on the primary presumption that the testator used them in that sense: Fetrow’s Est., 58 Pa. 424; Doebler’s App., 64 Pa. 9; France’s Est., 75 Pa. 220; Porter’s App., Eberle’s Est., 94 Pa. 332; Ihrie’s Est., 162 Pa. 369.

      John J. Green, and Joseph P. McCullen, for appellee
    were not heard, but cited in their printed brief: Turbett v. Turbett, 3 Yeates, 187; Lewis’s App., 108 Pa. 133; Rawlings v. Jennings, 13 Vesey, 39; Hotham v. Sutton, 15 Vesey, 319; Bouvier’s Law Dict., Title, “Effects;” Roper on Legacies, 210; Lippincott’s Est., 173 Pa. 368.
   Per Curiam,

The decree is affirmed on the opinion of the learned judge of the orphans’ court.


text:
    Morrison, Appellant, v. American Surety Company of New York.

      Bonds — Joint and several obligation — Severance—Presumption—Principal and surety — Contract.
    1. The presumption of the law is that when two or more persons enter into a contract or an obligation without adding language disclosing a different intention, the undertaking is a joint and not a several one. The presumption, however, may be rebutted, and is rebutted when the obligation contains words of severance, showing that it was the intention of the parties that it should be several as well as joint.
    2. An obligation in writing reciting that one person as principal, and another as surety are held and firmly bound to a third person in a sum stated “for the payment whereof said principal binds himself,' his heirs, executors, administrators and assigns, and the said surety binds himself and his successors firmly by these presents,” is a joint and several obligation.
    Argued Jan. 20, 1909.
    Appeal, No. 285, Jan. T., 1908, by plaintiffs, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1907, No. 218, for defendant on demurrer to statement in case of William H. Morrison to the use of the Equitable Trust Company v. American Surety Company of New York.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Demurrer to statement in assumpsit. Before Staake, J.
    The material portion of the bond upon which suit was brought was as follows:
    “Know all men by these presents, that we, of the
    City of Philadelphia, (hereinafter called the principal), as principal, and the American Surety Company of New York (hereinafter called the surety), as surety, are held and firmly bound unto William H. Morrison, of the City of Philadelphia, Pennsylvania (hereinafter called the obligee), in the sum of dollars, for the payment whereof the said principal binds himself, his heirs, executors, administrators and assigns, and said surety binds itself and its successors firmly by these presents.”

      March 8, 1909:
    The question raised by the demurrer was whether the bond was a joint and several one, or a purely joint one.

      Error assigned was the judgment of the court.

      F. B. Bracken, for appellant. —
    The bonds in suit are joint and several undertakings: Geddis v. Hawk, 10 S. & R. 33; Besore v. Potter, 12 S. & R. 154; Moser v. Libenguth, 2 Rawle, 428; Leith v. Bush, 61 Pa. 395; Knisely v. Shenberger, 7 Watts, 193; Douglass v. Second Nat. Bank, 4 W. N. C. 163; Kendig v. Garrett, 1 Chester County, 167; Miller v. Reed, 27 Pa. 244; American Surety Co. of New York v. Pauly, 170 U. S. 133 (18 Sup. Ct. Repr. 552).

      H. Gordon McCouch, with him George S. Munson, for appellee. —
    The obligation was joint: Philadelphia v. Reeves, 48 Pa. 472; Moser v. Libenguth, 2 Rawle, 428; Pittsley v. King, 206 Pa. 193; Bowman v. Kistler, 33 Pa. 106.
   Opinion by

Mr. Justice Mestrezat,

In Sheppard’s Touchstone it is said (p. 375): “If two, three, or more bind themselves in an obligation thus, obligamus nos, and say no more, the obligation is and shall be taken to be joint only, and not several.” In other words, the presumption of the law is that when two or more enter into a contract or an obligation without adding language disclosing a different intention the undertaking is a joint and not a several one. This rule has been uniformly recognized and adhered to in all our cases. In one jurisdiction, however, in this country, it is held that there is no presumption arising out of an obligation by two or more persons that the undertaking is joint and not joint and several. In delivering the opinion of the supreme court of Minnesota in Schultz v. Howard, 56 Am. St. Repr. 470, Mr. Justice Mitchell says (p. 474): “There should be no presumption in favor of an obligation being joint instead of joint and several. Rules of law as to joint obligations, are at best, extremely technical and inconvenient, and many states have, like Illinois, enacted statutes declaring them to be joint and several.”

While the rule is enforced in this jurisdiction and a presumption arises that the obligation is a joint undertaking, yet, the presumption may be rebutted and is rebutted when the obligation contains words of severance showing that it was the intention of the parties that it should be several as well as joint. In all contracts the parties may make their own bargain, and if they do so in language showing an intention to impose a several as well as a joint liability upon the obligors, the courts will enforce it against each party as well as against all the parties jointly. Whether, therefore, there is a several as well as a joint liability in any case, depends upon the contract or obligation which the parties have executed.

The question has frequently arisen in this jurisdiction. We have held that an agreement for' the payment of money or performance of some other act expressed in the singular number but signed by two or more persons is a joint and several contract. Several expressions have been held to be words of severance and to change a joint obligation into one that is joint and several, such as “we bind ourselves and each of our heirs;” “ourselves, our heirs;” “and every of them;” “respectively;” “to be levied of our several goods.” In each instance, these words were held to rebut the presumption arising from the joint undertaking and to show that the parties intended that the obligation should be several as well as joint.

Turning now to the obligation out of which this controversy arises we find the important and controlling part to be the following: “We as principal, and the American Surety Company of New York, (hereinafter called the surety) as surety, are held and firmly bound unto William H. Morrison of the city of Philadelphia, Pennsylvania (hereinafter called the obligee), in the sum of dollars, for the payment whereof said principal binds himself, his heirs, executors, administrators and assigns, and said surety binds itself and its successors, firmly by these presents.” The first part of this undertaking is unquestionably a joint obligation. The parties say: “We are held and firmly bound.” From this language the presumption arises that the parties intended to make themselves jointly liable on the obligation. It is, however, simply a presumption. Neither the word joint ” or “ jointly,” nor other language of like signification is used to show that the parties intended a joint responsibility. Standing alone, however, the words used are sufficient to create a joint obligation unless they are modified or controlled by other language in the instrument.

Following the words just quoted, imposing a joint liability, we find this language: "the payment whereof said principal binds himself, his heirs, executors, administrators and assigns, and said surety binds itself and its successors, firmly by these presents.” We think these words create a severance and are amply sufficient to overcome the primary presumption that the obligation was a joint undertaking. The obligation would then be substantially in the following form: “We bind ourselves, our heirs, executors and administrators; and each of us bindeth himself, his heirs, executors and administrators,” which the Touchstone says is the proper form of a joint and several obligation. In considering the language of the bond in the present case and its effect, it must not be overlooked that the first part of the obligation did not declare expressly that it was a joint undertaking. That it is such is simply an implication or inference from the language used. The obligors primarily do not declare in the bond that they are “jointly” liable, nor do they use any similar language which shows that their undertaking is a joint one. When, however, in the subsequent part of the bond they state the character of their liability, they employ language which expressly declares that each is liable on the obligation. “The principal binds himself” and the “ said surety binds itself” is the language of the instrument. It will be observed that these words disclose more clearly an intention on the part of the obligors to assume a several liability than the words used in many of our cases, quoted above, and which we have declared do create a severance. In those cases the singular number, and the words “each,” “every,” “respectively” and “several” were the effective words in the instrument to create' the severance. Here, in language much more direct and forceful than those words, it is declared that the “ principal binds himself,” and the "said surety binds itself.” This is a declaration of a distinct and separate obligation by each obligor for the payment of the sum named in the instrument. The principal assumes the obligation, imposed by the contract, and the surety likewise. Each in a separate capacity as the language clearly shows. In effect the bond declares we are held and firmly bound in the sum of dollars, for the payment of which each obligor is responsible. By the covenant of the parties each assumed a separate obligation to pay the sum named in the bond and thus, under our decisions, a joint and several obligation is imposed on which an action will lie against both or either of the obligors.

We have examined all the cases cited by counsel and we find none in conflict with our conclusion. The language of the obligation under consideration speaks for itself, and points unmistakably to an intention on the part of the obligors to assume a several as well as a joint liability.

The assignment of error is sustained, and the judgment of the court below is reversed with a procedendo.


author: Mr. Justice Elkin,

text:
    Trainer v. Trainer Spinning Company, Appellant.

      Master and servant — Wrongful discharge — Corporation—Manager— Corporate resolutions — Evidence—Case for jury.

    In an action against a corporation by its former manager to recover salary after an alleged wrongful discharge, it appeared that a resolution was passed giving the plaintiff a leave of absence for a limited period, and that another resolution was passed four days later, finally discharging plaintiff on the ground of insubordination. There was testimony that the plaintiff before the second resolution was passed refused to take the vacation offered to him, and also refused to permit another person to act in his place. The ground for discharge was insubordination. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Feb. 8, 1909.
    Appeal, No. 199, Jan. T., 1908, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1906, No. 153, on verdict for plaintiff in case of William E. Trainer v. Trainer Spinning Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for salary. Before Johnson, P. J.
    The court charged in part as follows:
    It appears that some time in August, 1906, there was some difficulty in that corporation and that difficulty in some way related to continuing Mr. Trainer, the superintendent, in his position as superintendent and manager. The real difficulty, whatever it may have been, does not very clearly appear, but on August 6, 1906, the company passed this resolution:
    “Mr. James S. Austin. — Mr. Austin, one of the directors, at a meeting of the corporation, 'moved that Mr. Trainer be given a vacation for three months, with his salary, from the 6th of August, 1906, and that in the interim the mill be managed by the President or such superintendent or manager as he may designate, provided that at the expiration of the three months Mr. Trainer shall not again take up the work or manage or superintend until further action by the Board of Directors.' ” That resolution was passed. On that day or the next day, I am not very clear which, and I do not think the president testified, he called at the mill on Mr. Trainer.
    He went to the mill after the passage of this resolution, went alone, if I remember, on the first occasion, and had a conversation with the superintendent. You remember what was said. If I got the president aright his mission was, as he said, to coax or persuade Mr. Trainer to take a vacation. I do not remember any evidence that he demanded possession of the mill, but that he wanted him to accept the suggestion in this resolution that he take a vacation. Mr. Trainer declined to do it, and he went away. I understand there is no complaint upon the part of the defendant of this interview, but there may be. It will he for you to say whether there was anything in that interview that was contumacious upon the part of Mr. Trainer, or that evinced any effort to defy or disobey’the order of the president if any order was given.
    [I do not recollect that any demand was made by the president for him to give up the mill or to go away, but my recollection is he tried to persuade him it would be better for him that he take this vacation. However, he went away. The next day he returned, if it was the next day, with a gentleman named Turner, George C. Turner, who, it is alleged by the defendant, had been selected as the manager or superintendent to take the place of Mr. Trainer, and the contention of the defendant is that Mr. Trainer refused to accept this man as the superintendent, and turn over the mill to him, and because of that refusal they had the right to discharge him. That is the contention of the defendant; — that they produced to him at the mill his successor, and 'that he refused to obey the orders of the board of directors and of the president, and, therefore, they had a right to discharge him.
    If I remember that testimony it was like this: That the president and Mr. Turner went to the mill; at the gate was a Mr. Pierce, a watchman employed by the superintendent, Trainer, and that he let him in, but that Mr. Trainer refused to permit Mr. Turner to enter. I do not recollect any testimony upon the part of the president or Mr. Trainer informing Mr. Trainer that this was the superintendent and that he was there to take his place, and it does seem to the court, though you are not bound by this suggestion, that in the presence of the dubious character of this resolution of August 6, that if it was the intention of this president to present a superintendent which he had selected, for he was authorized under the resolution of August 6, to select one, that he ought to have said to Mr. Trainer: “I have selected this gentleman to take your place, and I ask you or demand of you,” or something, “to surrender the property to him.” I do not remember a particle of evidence whether— was there any evidence showing that Turner had been appointed?
    Mr. Hannum: Not at that time.
    The Court: I mean at that time.
    Mr. Dickinson: What Mr. Hannum’s reference to was his election to the position of manager, but the first resolution was, if the court will remember, “any manager or superintendent selected by the president.”

      The Court: Is there any evidence he had been selected by the president?
    Mr. Dickinson: Certainly. Mr. Blythe testified to it and Mr. Trainer testified point-blank that he told Mr. Blythe in so many words, "I will admit you or any officer of the company, but I will not admit Mr. Turner,” who was the new manager.
    Mr. Hannum: Oh, he did not say that.
    The Court: Just as I say, it will be for you to say whether there was any evidence, first, that the president had appointed Turner at that time, and whether when he got there he informed Mr. Trainer that Turner had been appointed by him, because there is nothing on the minute to show, had been appointed by him as the manager and gave him plainly to understand that this was a demand for this property, because we would be inclined to the view that if there had been a man, a superintendent, appointed in his place, and he had appeared by the president, and Mr. Trainer had been told that he had been removed from his office, and this was his successor, that he would be bound to take notice of it and would be obliged to surrender it. But it was the duty of the defendant to make that clear. Now, was it clear? And did the superintendent and did the company believe at that time that the resolution of August 6, was intended as a dismissal, as a discharge?] [4]
    Both counsel for the plaintiff and the defendant conclude that this was not a discharge; that this was an offer or a direction to Mr. Trainer to take a three months’ absence, but they informed him that his work would end at the end of three months unless the board should otherwise determine.
    So that first, was it clear to Mr. Trainer who was present when this resolution was passed that this was intended to dissolve his connection with this business or that it was optional with him whether he should take three months’ vacation or not?
    Now, the resolution of August 9, throws some light upon this question. Evidently after the president had returned the board concluded that something else had to be done to get possession of the property, and they passed this resolution: “Be it resolved that the resolution adopted on August 6, which was as follows: That William E. Trainer be given a vacation of three months with his salary, and that in the interim the mill be managed by the President or such Superintendent or manager as he may designate, provided at the expiration of the three months Mr. Trainer shall not again take up the work as manager or superintendent until future orders by the Board, be revoked, rescinded and declared null and void, and that the said William E. Trainer be and is hereby discharged as superintendent and manager of the mill, his discharge to date from this date, August 9, 1906.”
    Now it is quite plain from this resolution that the corporation, the company, was not intending or inclined to stand upon the resolution of August 6 as a dismissal. Whether they thought it was dubious or not no one knows, because, as Mr. Dickinson says, “We can't give in evidence what was talked about before the -resolution was passed,” but it was a fact that then they did pass a resolution not only revoking this former resolution but dismissing him. The president went down to the work and Mr. Trainer, under this resolution of revocation, surrendered the premises.
    [Now, it will be for the jury to say whether or not this company was justified in discharging him for any reason that took place, either at the first interview by the president after the passage of the resolution of August 6, or the second. If the jury find that there was nothing in that that justified the company for discharging him, then he is entitled to recover. The president says, as I understand, that he had a conversation with the constable about what the constable would do if he sent him a letter. You remember what he said. He said he was there to keep people from taking forcible possession of the premises, and that he was employed by Mr. Trainer, and that was his duty. Now, I do not pay very much regard to what the constable said to the president at all. The constable might have said anything he pleased. True, he was there in charge, but he said that his duty, and he said it was in writing, was that he should keep people from taking forcible possession of the premises, and the conversation that he had with the president after he had gone out was not very pleasant. Still, it is the act of Mr. Trainer and not the act of this constable that is to justify this corporation in discharging him, if they are to be justified at all. You are not to take the view of the court that this conversation with the constable has but little bearing upon this question, it has some. It will be for you, but the court does not see that it has a very great bearing upon this controversy, because it is the act of Mr. Trainer when this president went there on these two occasions, for that is when the trouble arose. Was there anything upon his part, any act that justified this corporation in rescinding this contract? For that is what they did.] [5] And in passing upon this question, look at these minutes; pay attention to the testimony of the president and all the other witnesses and of the plaintiff, very few witnesses, and if you conclude that there was a hiring here for five years or a hiring for one year, and that the discharge was made during the term without a justifiable and a reasonable cause then this plaintiff is entitled to recover $1,875 and the interest.
    March 8, 1909:
    Verdict and judgment for plaintiff for $1,972.50. Defendant appealed.

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

      O. B. Dickinson, with him M. W. Sloan, for appellant.

      Kingsley Montgomery, with him John B. Hannum, for appellee.
   Opinion by

Mr. Justice Elkin,

In 1902, Sloan, a promoter, being desirous of organizing a spinning company, made a proposition in writing to appellee stating the terms upon which he could become a subscriber to the capital stock of a company to be afterward incorporated for the purpose indicated, of which company Trainer was to be manager for a term of five years at a salary of $2,500 per year. The appellee accepted the proposition, complied with all the requirements and was selected by the board of directors as manager and continued to perform his duties as such for a period of four years and three months, when differences arose between the manager and some officers of the board which resulted in his discharge. This suit was brought to recover the balance alleged to be due him for that portion of the last year of his term of employment in which he was not permitted to continue as manager. His right to recover is denied because of his discharge under circumstances claimed to be justifiable. The testimony shows that business differences arose between the members and officers of the board in reference to the management of the company which culminated in the resolution of August 6 being adopted, and this was followed by the resolution of August 9. The principal contention here is that the resolution of August 6 was not a discharge but the grant of a leave of absence for a limited period on full pay, and that the rescinding of this resolution and the final discharge four days later on the ground of insubordination was justifiable and is sufficient to defeat a recovery in this action. These, however, were all questions for the jury, and unless there was substantial error in their submission the verdict should not be disturbed. We have concluded after very careful consideration of the whole record that no reversible error was committed at the trial or in the charge to the jury. While the resolution of August 6 standing alone might not be considered an absolute discharge, taken in connection with subsequent events and all other circumstances relating thereto, it must be considered the beginning of the end so far as his services as manager are concerned. It in substance said to the manager, your services are no longer needed and you must prepare to sever your relations with this company. He so understood it and so must the other members of the board have intended it. What occurred but a few days later leaves no room to doubt that this was the intention of all parties concerned. Under these circumstances the jury could very properly take into consideration the resolutions of August 6 and 9, and all other facts developed at the trial in order to determine whether there was just cause for the discharge. The learned trial judge submitted all these questions to the jury in such a manner as to clearly indicate what the issue between the parties was and the grounds upon which the various contentions were based. It was a question of fact for the jury, and in our opinion nothing occurred at the trial to justify a reversal of the judgment entered on the verdict. Judgment affirmed.


text:
    Gaines v. Chester Traction Company, Appellant.

      Negligence — Street railways — Collision at steam railway crossing— Trolley leaving wire — Stranding of car across track.

    1. Where the trolley of an electric car leaves the wire when the car is passing over a steam railroad crossing, without any negligence on the part of the street railway company or its employees, and the car becomes stranded and is run into by a locomotive, a passenger on the electric car who is injured cannot recover from the street railway company where there is nothing to show that the parting of the trolley from the wire was due to any defect in the construction of the car, or to any lack of care on the part of the motorman or conductor, or that the latter were negligent in attempting the crossing.
    2. An electric railway car arrived at a grade crossing over which the tracks of a steam railroad company were also laid. The safety gates were down when the trolley car arrived but were soon raised by the gate tender, an employee of the railroad company, thus inviting those in charge of the trolley car to pass over the crossing. Before starting his car the conductor walked ahead as was his duty, looked up and down, saw the track was clear, and then signaled the motorman to bring the car over. While passing over the crossing the trolley came off the wire and the car stranded across the railroad tracks. An engine of the railroad company standing about seventy feet distant at the time the trolley car started to make the crossing, suddenly and slowly without warning, began to move in the direction of the crossing and its speed being accelerated as it proceeded and no effort seemingly having been made to stop it by those in charge of the engine, a collision with the stranded trolley car resulted and the plaintiff was injured. The trolley car was in good repair and the tracks and overhead construction were of the kind in general use, there was no allegation of faulty construction or of careless or insufficient maintenance, and no evidence of negligence in the operation of the system or in running the car, save the stranding of the same, was produced. Held, that the plaintiff was not entitled to recover.
    Argued Feb. 8, 1909.
    Appeal, No. 211, Jan. T., 1908, by defendant, from judgment of C. P. Delaware Co., March T., 1907, No. 285, on verdict for plaintiffs in case of Charles E. Gaines and Ellen Gaines, his wife, v. Chester Traction Company.
    March 8, 1909:
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for Charles E. Gaines for $375 and for Ellen Gaines, his wife, for $2,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      J. B. Hannum, for appellant. —
    There was no sufficient evidence of negligence of the defendant in this case to submit to the jury: Federal Street, etc., Railway Co. v. Gibson, 96 Pa. 83; Beckman v. Street Ry. Co., 219 Pa. 26; Farley v. Philadelphia Traction Co., 132 Pa. 58; Keller v. Hestonville, etc., Pass. Ry. Co., 149 Pa. 65; Penna. R. R. Co. v. MacKinney, 124 Pa. 462.

      O. B. Dickinson, with him J. E. McDonough, for appellees.—
    Whether there was a defect in the trolley construction or not the facts at least justify the inference that there was negligence in the operation of the car in taking it into a place of danger: Railroad Co. v. Boyer, 97 Pa. 91; People’s Pass. Ry. Co. v. Weiller, 17 W. N. C. 306; Clow v. Traction Co., 158 Pa. 410; Smedley v. Railway Co., 184 Pa. 620; Keller v. Railway Co., 149 Pa. 65; Willis v. Traction Co., 189 Pa. 430.
   Opinion by

Mr. Justice Elkin,

In the statement of the question involved in the paper-book of appellant is contained a concise recital of the facts relied upon to sustain a recovery in this case. A trolley car of the appellant company arrived at a grade crossing over which the tracks of a steam railroad were also laid. The safety gates were down when the trolley car arrived but were soon raised by the gate tender, who was an employee of the railroad company, thus inviting those in charge of the trolley car to pass over the crossing. Before starting his car the conductor walked ahead, as was his duty, looked up and down, saw the track was clear, and then signaled the motorman to bring the car over. While passing over the crossing the trolley came off the wire and the car stranded across the railroad tracks. An engine of the railroad company standing about seventy feet distant at the time the trolley car started to make the crossing, suddenly and slowly without warning, began to move in the direction of the crossing, and its speed being accelerated as it proceeded and no effort seemingly having been made to stop it by those in charge of the engine, a collision with the stranded trolley car resulted and a lady passenger, one of the appellees here, was injured. The trolley car was in good repair and the tracks and overhead construction were of the kind in general use and there is no allegation of faulty construction or of careless or insufficient maintenance. Under these circumstances it must now be determined whether there was any evidence of negligence to submit to the jury upon which a recovery can be sustained. The rules governing the use of the crossing were carefully observed by the conductor and the motorman. They did what their duties required them to do. The safety gates were under the control of the railroad company, and when the gate tender raised them the employees of the trolley company had a right to act on the assumption that the way was clear. They did not rely on this invitation alone, but the conductor went ahead, as was his duty, to see for himself what the situation was and having these two sources of information he was fully justified in signaling the motorman to start the car. Of course, even after starting the car and being committed to the crossing the duty still rested on the conductor to take every reasonable precaution under his control for the safety of passengers, but as we view the testimony everything was done within his power to do as the car passed over the crossing. The evidence does not show that anything done or left undone by the conductor or motorman was in any way responsible for the stranding of the car. It is one of those things which in the operation of a street railway sometimes occurs when no one is at fault, and this was true in the present case. The conductor of the trolley car could not control the movement of the steam engine, nor could the appellant company be made liable for what the employees of the railroad company did or failed to do. Nor can we accept as sound the contention that because the steam engine made some signs of being ready to move about the time the trolley car started, or immediately thereafter, it was the duty of the conductor to stop his car and wait to ascertain what the engine might do. He had a right to assume after the employee of the railroad company had raised the safety gates that the way was clear so far as the engine and trains of the railroad company might interfere with the use of the crossing. A careful examination of this record has failed to convince us that there was any evidence of negligence to submit to the jury.

Judgment reversed and is here entered for defendant.