author: Me. Justice Mestrezat,

text:
    Clear Springs Water Company, Appellant, v. Catasauqua Borough.

      Corporations — Water companies — Proceedings under Act of May SI, 1907, P. L. 855 — Disclaimer—Estoppel.
    1. Where a borough institutes proceedings under the Act of May 31, 1907, P. L. 355, to acquire the plant of a water company, and the respondent files a disclaimer consenting that the borough may install a plant with like force and effect as if the proceeding had been prosecuted to completion, and upon this disclaimer the petition of the borough is dismissed, the water company cannot thereafter, and after the borough has spent large sums of money towards the construction of a plant of its own, maintain a bill in equity to prevent the completion of the borough waterworks. In such a case the validity of the estoppel does not depend upon the constitutionality of the Act of May 31, 1907.

      2. Where a party assumes a position in a legal proceeding and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.
    Argued Jan. 30, 1911.
    Appeal, No. 76, Jan. T., 1910, by plaintiff, from decree of C. P. Lehigh Co., June T., 1909, No. 1, dismissing bill in equity in case of Clear Springs Water Company v. Catasauqua Borough.
    Before Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Trexler, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      W. W. Watson and John G. Johnson, with them Frank Jacobs, Alex. N. Ulrich and Dickson, Beitler & McCouch, for appellants.
    The disclaimer was ineffective inasmuch as the Act of May 31, 1907, P. L. 355, is unconstitutional: White v. Meadville, 177 Pa. 643; Penna. Water Co. v. Pittsburg, 226 Pa. 624; Manheim Borough v. Manheim Water Co., 229 Pa. 177.
    The plaintiff company did not have an exclusive privilege within the meaning of the act of 1907, and therefore said act did not apply to it: Act of April 29, 1874, P. L. 73, sec. 34, clause 3; Freeport Water Works Co. v. Prager, 129 Pa. 605; Hastings Water Co. v. Hastings Boro., 216 Pa. 178.
    The Clear Springs Water Company has done nothing in violation of its charter privileges and its rights and privileges cannot be destroyed indirectly by the act of May 31, 1907: Manheim, Petersburg & Lancaster Turnpike Co. v. Arndt, 31 Pa. 317; Wabash & Erie Canal Co. v. Beers, 67 U. S. 448.

      Preston K. Erdman, with him Francis G. Lewis and Thos. F. Diefenderfer, for appellees.
    The complainant is estopped by the disclaimer filed of record: Bidwell v. Pittsburg, 85 Pa. 412; Greeley v. Thomas, 56 Pa. 35; Philadelphia v. Railway Co., 142 Pa. 484; Kase v. Best, 15 Pa. 101; Maust v. Railway Co., 219 Pa. 568; Roney v. Westlake, 216 Pa. 374; West Washington Borough v. Fouse, 41 Pa. Superior Ct. 462; Haneman v. Pile, 161 Pa. 599.
    April 10, 1911:
   Opinion by

Me. Justice Mestrezat,

We have carefully examined this voluminous record and the exhaustive brief of appellant’s counsel but have failed to discover any reversible error in the trial court’s findings of fact or law. We think the opinion of the learned court clearly vindicates his conclusions and the correctness of the decree which he entered.

The right of the borough, independently of the disclaimer, t’o erect its own waterworks may be eliminated from the case. The court based its conclusion entirely upon the effect of the waiver filed by the plaintiff company in the proceeding instituted by the borough under the Act of May 31, 1907, P. L. 355, 5 Purd. 5703. In fact the court agreed with the plaintiff’s contention that the borough had no right to erect waterworks under the facts disclosed by the evidence, but held that the plaintiff’s disclaimer or waiver in the former suit estopped it from now alleging that the borough could not construct a water plant.

The act of 1907 authorizes cities and boroughs to acquire waterworks owned by private persons and provides the mode of procedure for accomplishing the purpose. It provides that appraisers shall be appointed to value and appraise the property, and that they shall file their report in the prothonotary’s office. The report becomes final if not appealed from in ten days after notice that it has been filed. An appeal is allowed which shall be heard and determined by the court which has the power to increase, lower or modify the appraisement. The municipality is authorized to buy the plant at the valuation thus determined, and the corporation, owning the plant, is required within ten days after the determination of the value of the plant to file a paper indicating its consent and election to sell and convey the plant to the municipality at the valuation fixed as required by the act. The fourth section then provides that in default of its consent to sell at the appraised value, the company shall cease to have any exclusive privilege of supplying the municipality or the citizens thereof with water, and the municipality may install or cause to be installed such plant or system as the authorities may deem necessary and expedient for the accommodation of the public.

Catasauqua borough presented its petition to the common pleas of Lehigh county on December 19, 1907, setting forth its desire of owning the waterworks of the Clear Springs Water Company, the plaintiff in this case, and asked for the appointment of appraisers under the provisions of the act of 1907. The matter was proceeded with to a hearing when the Clear Springs Water Company alleged that the act was unconstitutional and had no application to it, which was denied by the borough. Subsequently the water company filed a paper in the proceeding declining to sell its works to the borough at any valuation which might be placed on the plant by the appraisers or the court, admitting its default under the act of 1907 by reason of its declination to sell its waterworks, and acknowledging the right of the borough to install such water plant or system as it might deem expedient with the same force and effect as if the borough were to prosecute the proceeding to a final valuation of the water company’s works or plant and then determine to purchase the plant at the appraised valuation and the company should decline to sell it. The court directed the disclaimer to be filed of record in the case. In disposing of the application, after the water company’s disclaimer had been filed, the court said: “I see no reason why the remedy provided by the act of 1907 should be further pursued as evidently by an appraisement of the property of the company we would arrive at the same conclusion that is now before us.” The petition of the borough was, therefore, declined, “for the reason set forth in the opinion this day filed.”

The present proceeding is a bill filed by the water company to enjoin the borough from erecting and constructing a water plant. The borough contends, and the learned court below held, that the water company was estopped from maintaining the bill by reason of its disclaimer filed in the former case and the subsequent action of the borough in proceeding with the erection of the plant by virtue of the disclaimer. In his opinion the learned judge says: “The borough afterwards spent nearly $4,000 in digging wells and other preliminaries to erecting its own plant, and increased its indebtedness to that end. The plaintiff in this case (the water company) contends that the waiver amounted to nothing, that the act of 1907 is unconstitutional, and of no effect. I do not take that view of the matter. Granted that the act of 1907 may be unconstitutional, it is nevertheless true that the company, in order to get rid óf the suit, agreed upon a basis of settlement. They admit certain rights as residing in the borough. Why should it not be bound by its admission? The borough relying upon it spent money. Why should not the same rule which would estop the borough from erecting its waterworks estop the plaintiff from interfering when the borough proceeds to exercise the conceded right? ‘He who seeks equity, must do equity.’ The plaintiff cannot blow hot and cold. It cannot prevail, upon the court to dismiss the case in one case upon the strength of its disclaimer, and in the present case deny the validity of such disclaimer. To my mind, the paper filed by' the company controls this case, and prevents the plaintiff from maintaining this bill. The result may be disastrous to the plaintiff, but the situation is one of its own making.” It will be observed that if the application made by the borough under the act of 1907 had been proceeded with to its conclusion and the water company had agreed or the court had found the facts as set forth in the disclaimer the decree would have declared that the water company had ceased to have an exclusive privilege of supplying water to the municipality or its citizens and that the municipality could install its own water plant. The disclaimer or waiver filed by the water company is in the identical language of the act, and consents that the municipality may install a plant with like force and effect as if the proceeding instituted by the borough had been prosecuted to completion. The water company is, therefore, estopped from asserting any claim or right which it waived by the disclaimer filed in the former proceeding. It cannot be permitted to defeat the borough’s application under the act of 1907 by filing a disclaimer and thereby induce the court to dismiss the application and the borough to expend large sums of money in erecting its plant, and then withdraw the disclaimer and enjoin the borough from completing the water plant. In 11 Am. & Eng. Ency. of Law (2d ed.), 446, it is said: “It has been laid down as a general proposition, that where a party assumes a position in a legal proceeding and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” In Bidwell v. Pittsburg, 85 Pa. 412, 417, Merctjr, J., delivering the opinion, says: “It may now be declared as a general rule, that where an act is done, or a statement made by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, the character of an estoppel shall be given to what otherwise would be mere matter of evidence. It is not necessary that the party against whom an estoppel is alleged, should have intended to deceive; it is sufficient if he intended that his conduct should induce another to act upon it, and the other, relying on it, did so act.” And in Maust v. Pennsylvania and Maryland Street Railway, 219 Pa. 568, we said that relief will not be granted “where the party seeking redress has placed himself in such a position that to grant his request would work an injustice to the other party whom he has led to believe could do the particular thing which he now undertakes to restrain.”

The decree dismissing the borough’s application under the act of 1907 was entered April 27, 1908. The bill in this case was filed in June, 1909. Immediately after the borough’s application had been dismissed, it proceeded to erect a water plant, expended about $4,000 in boring wells, securing a supply of water and in the purchase of lands, held an election to increase the borough’s indebtedness, prepared bonds and laid out the plant and system. The water company had full knowledge of all these proceedings and made no objection. It certainly would be most inequitable and unjust to permit the company to withdraw its disclaimer at this time and under these circumstances, and restrain the borough from erecting a water plant. As pointed out above, had the proceedings instituted under the act of 1907 been proceeded with to completion, the court would have been compelled, after the company had filed the disclaimer, to enter a decree authorizing the borough to erect the plant. The decree dismissing the application as well as the action of the borough in proceeding to erect the plant were based upon the disclaimer or waiver filed by the water company. It was filed of record, and prevented any further prosecution of the borough’s application under the act of 1907, and defeated the borough in having its right to erect a water plant adjudicated by the court. Under well settled principles, recognized alike in text-books and decisions, the conduct of the water company estops it now from asserting any claim or right contrary to its disclaimer.

' There is no merit in the contention that the water company is relieved from the effect of its disclaimer because the act of 1907 may be unconstitutional. If it be conceded that the act does offend the constitution, the proceedings and decree in the case remain unimpeached and cannot be attacked collaterally: Ferson’s Appeal, 96 Pa. 140; Bidwell v. Pittsburg, 85 Pa. 412; Northampton County v. Herman, 119 Pa. 373. The validity of the estoppel does not depend upon the constitutionality of the statute.

The decree is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Charles J. Webb & Company, Incorporated, v. Novelty Hosiery Company, Appellant.

      Contract — Sales—Irregular deliveries — Time not essence of contract— Notice — Damages.
    1. Where the times and quantities of the deliveries specified in a contract of sale have not been observed strictly by either the seller or the purchaser nor insisted upon by either, the purchaser cannot suddenly rescind his contract with the seller without a fair warning of his intention to insist upon a literal compliance with it in future.
    2. Where a purchaser has wrongfully rescinded a contract of sale, the seller is entitled to recover the difference between the market price of the goods at the date of the rescission and the contract price, with interest.
    3. Where a purchaser has wrongfully rescinded a contract of sale, the fact that the seller subsequently accepted a check for the last delivery with the words written on the face of it “account in full,” does not release the purchaser from liability for damages for his wrongful rescission of the contract.
    Argued Jan. 31, 1911.
    Appeal, No. 60, Jan. T., 1910, by defendant, from judgment of C. P. Lehigh Co., June T., 1908, No. 39, for plaintiff on case tried by the court without a jury in suit of Charles J. Webb & Company, Inc., v. The Novelty Hosiery Company.
    Before Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for breach of contract for sale of yarn to be delivered weekly.
    The case was tried by Trexler, P. J., without a jury under the Act of April 22, 1874, P. L. 109.

      April 10, 1911:
    In addition to the facts stated in the opinion of the Supreme Court it appeared that the court entered judgment for plaintiff for $5,672.88, together with legal interest from January 13, 1908, which was the date of defendant’s breach. The damages were ascertained by taking the difference between the market price of the yarn at the date of the breach and the contract price and allowing interest from the date of the breach.

      Error assigned among others was the judgment of the court.

      Preston K. Erdman, with him Edward Harvey, for appellant.

      William W. Porter, of Porter, Foulkrod & McCullagh, with him- W. La Monte Gillette, for appellee.
   Per Curiam,

The claim of the appellee is for damages resulting from the defendant’s rescission of a contract to purchase yarn. The contention of the appellant is-that time was of the essence of its contract with the plaintiff, and, as the latter had failed to make the deliveries required by the contract, it had the right to rescind. A jury trial was waived and the case was tried before the learned president judge of the court below under the provisions of the act of April 22, 1874. He found that it was the understanding of the parties, confirmed by the course of dealing between them, that the times and quantities of the deliveries were not of the essence of the contract, but could be varied from time to time as circumstances might dictate, and that the times and quantities of the deliveries specified in the contract were not observed strictly by either the plaintiff or defendant nor insisted upon by either. The evidence in the case fully justified this finding, and the defendant could not, therefore, suddenly rescind its contract with the plaintiff without a fair warning of its intention to insist upon a literal compliance with it in futuro: Forsyth v. North American Oil Co., 53 Pa. 168. In assessing the damages to which the plaintiff was entitled the rule was followed as laid down in Unexcelled Fire Works Co. v. Polites, 130 Pa. 536; Jones et al. v. Jennings Bros. & Co., 168 Pa. 493, and Sharpsville Furnace Co. v. Snyder, 223 Pa. 372.

The check accepted by the plaintiff, with the words written on the face of it “account in full,” merely paid the amount due for the goods shipped up to December 16, 1907, and was, of course, in full payment of that account, but, as the court correctly found, “It was no release on the part of the plaintiff of any damages it may have sustained by reason of the rescission of the contract.”

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


text:
    Sinnott’s Estate.

      Executors and administrators — Compensation—Commissions.
    A commission of two and one-half per cent upon the principal of an estate of $2,500,000 is a proper compensation to four individual executors, where the compensation of the fifth executor, a trust company, was fixed by a contract made by the testator in his lifetime at one and one-half per cent upon the principal.
    Argued Jan. 31, 1911.
    Appeal, No. 354, Jan. T., 1910, by Clinton R. Sinnott, from decree of O. C. Montgomery Co., March T., 1910, No. 10, Nov. T., 1909, No. 20, sustaining exceptions to adjudication in Estate of Joseph F. Sinnott, deceased.
    Before Bbown, Mestbezat, Elkin, Stewaet and Moschziskeb, JJ.
    Reversed.
    Exceptions to adjudication.
    The material portion of the adjudication of Solly, P. J., was as follows:
    This leaves but one question open, that is, What is a fair and reasonable compensation for the executors, other than the Fidelity Trust Company? It was agreed that the testimony of Walter George Smith, Esq., taken at the audit of the first account, should be considered with the same force and effect as if it had been taken at this audit. Referring to the adjudication of the first account, I found the following facts:
    The death of the testator caused a closing down of his vast business, because of the strict regulation of the United States government. The distillery was closed, as well as the rectifying departments at 242 South Front street, in the city of Philadelphia. In order that the business might be resumed, it was necessary for the executors to obtain license from the court of Philadelphia, and from the court of Westmoreland county. It also became necessary for the executors to furnish large bonds to the United States government. They were required to give bonds aggregating in amount about $2,509,000, and, as we understand, these bonds, are required to be annually renewed. There were about 40,000 barrels of whisky in the bonded warehouses at Gibsonton, and 30,000 barrels more belonging to customers. The decedent had established agencies in the cities of New York and Boston. Expert accountants were retained to examine the books and accounts of the decedent’s business, so that the executors might be properly informed of the situation. They retained Mr. John Sinnottas manager, as the testator expressly recommended, at a salary of $15,000 per year, and they placed a Mr. Daly in charge of the business at Gibsonton. The importance of the business, the great responsibility resting upon the executors, their positive duty to manage it for the best interests of the estate, called for the best business judgment, and the executors very properly resolved themselves into a board of directors, so to speak, held regular meetings, kept full minutes of every proceeding, and acted after full consultation and due deliberation. There were frequent consultations with the expert accountants, and the manager, and those in charge of the business at Gibson-ton. The manager was required to furnish accounts of the business each month, and full detailed statements every three months. There were daily consultations with the manager, and the executors’ counsel. Many difficult questions arose day after day, requiring not only work and labor to solve, but also the application of the very best business judgment. Under the laws of the state of Massachusetts, in order that the agency business in the city of Boston might continue, ancillary letters on the estate were required. This involved additional labor and responsibility. Another matter of grave concern arose out of the failure of the Real Estate Trust Company, of Philadelphia, the surety upon the bonds given by the executors to the United States. Immediately after the public had been informed of the failure of the company, United States officials notified the executors to file new bonds. This required the executors to find additional surety, and to act without delay, because failure to comply with the demand of the government would have resulted in the closing down of the entire distilling business.
    I further find the second and third accounts are confirmatory of the conservation of the estate by the executors; that the executors performed a vast amount of unusual and extraordinary labor imposed upon them by the testator; a very large amount of money passed through their hands, and as the result of their management of the business, a net profit of over $500,000 is shown.
    Practically all of the estate has been converted. The exceptant makes no point that the estate in the hands of the executors is not to be transferred at this time to them as trustees. He frankly stated that for the purposes of the case, the taking over of the assets of the distillery business might be regarded as an actual conversion. We are not, therefore, confronted with the situation the estate was in when the appeal was heard in the Supreme Court. The estate has not only been conserved, but for present purposes has been converted.
    On the subject of compensation, Air. Justice Stewart when this case was before the Supreme Court, said, “The basis on which compensation must be determined in every case where it takes the form of a commission, is the amount of the estate administered upon and accounted for. With this amount ascertained, such per centum rate may be allowed thereon as in the opinion of the auditing judge will afford just and reasonable compensation to the accountants.” He further said, “Until such conversion shall have been accomplished, no compensation will have been earned as to these assets, and therefore none will be allowed.”
    The estate, has been converted, and the executors are entitled to have their compensation fixed and paid. As to the compensation of the Fidelity Trust Company, that was fixed by the testator himself, under agreement of April 18, 1900. He agreed to appoint the company one of the executors and trustees, and provided that they should have a commission of one and one-half per centum of the principal of the estate if it inventoried over $1,000,000, and a commission of two per cent on the income, and that they should have for acting as trustees two per centum on the income, and an allowance of one-half of one per centum on reinvestments. The compensation of the company was graduated if the inventory was over $500,000 and less than $1,000,000, or if it was over $100,000 and less than $500,000. The agreement also provided that the company’s compensation should be outside of the compensation of the other executors and trustees, which the decedent was to fix.
    There is not and can be no question but that the compensation of the fidelity company has nothing to do at all with the compensation to which the other executors are entitled. “The rule is fair compensation for the amount and character of the labor. The responsibility involved in large estates is also an element to' be compensated, though not a controlling one:” Wistar’s Est., 192 Pa. 289. ‘ ‘ The labor and responsibility involved in the proper administration of the estate, and the care and skill shown by the executors in the performance of the duties connected with the trust, must be taken into consideration in passing upon their claim:” Lilly’s Estate, 181 Pa. 478.

      There are decisions without number, and the books are full of cases on the subject of the commissions or compensation of executors, administrators and trustees. A very complete brief of the cases in Pennsylvania is that of counsel for appellee in Wistar’s Est., 192 Pa. 289.
    There is no set rule as to percentage. In arriving at the compensation to which an executor is entitled, it is necessary to consider the amount, the estate, the labor performed, and the responsibility imposed.
    In the adjudication of the first account, we allowed a commission of five per cent, as claimed, which included the one and one-half per centum of the Fidelity Trust Company. If this estate was an ordinary one involving simple administration and conversion, a commission of three per cent upon the corpus administered and converted would be full and ample compensation. But the labor and responsibility of the executors has been extraordinary. The estate is a large one, requiring skill and great responsibility. It has been managed with signal ability, and everything has been wisely and judiciously done by the executors. The office of executor is not one of profit. They are entitled to be fairly compensated.
    We have given the matter careful consideration, and have reached the conclusion that the four executors, under all the circumstances, will be reasonably compensated within the meaning of the law if they receive two and one-half per centum on the corpus of the estate. This, with the compensation of the Fidelity Trust Company, the other executor under the special contract, will make the per centum of the executors four per cent.
    On exceptions to the adjudication Solly, P. J., filed an opinion in which he modified the adjudication so as to allow the individual executors three and one-half per cent commissions on the principal.

      Errors assigned were in sustaining exceptions to the adjudication.

      April 10, 1911:

      N. H. Larzelere, with him M. Hampton Todd, for appellant.
    If this court adheres to its rulings in a long line of cases, the decree of the lower court must be reversed: Harrison’s Est., 217 Pa. 207.
    In Young’s Est., 204 Pa. 32 (estate $263,036.77), three per cent was allowed.
    In Whelen’s App., 70 Pa. 410, three per cent was allowed upon $168,000.
    In Oliver’s Est., 20 W. N. C. 318 (O. Ct. of Phila.), on an estate of $711,330.39, the compensation was reduced from five per cent to three and one-half per cent.
    The number of the executors is not to make any difference in the rate of commission (compensation): Wickersham’s App., 64 Pa. 67; Walker’s Est., 9 S. & R. 223.

      Wm. Rudolph Smith, with him Henry Pleasants, for appellee,
    cited: Moore’s Estate (No. 1), 211 Pa. 338.
   Per Curiam,

The testator appointed five executors of his will and had an agreement with one of them — the Fidelity Trust Company — as to the compensation it should receive for its services. On this appeal the question is as to the commissions to which the other four are entitled on the corpus of the estate, amounting to $2,503,099.95. They are to be allowed “just and reasonable compensation” for their services : Sinnott’s Est., 224 Pa. 333. They asked credit in their account for commissions at the rate of three and one-half per cent on the principal of the estate, and, in sustaining an exception filed by the appellant to this item, the learned judge below, in his adjudication of the account, reduced the commissions to two and one-half per cent, saying: “We have given the matter careful consideration, and have reached the conclusion that the four executors, under all the circumstances, will be reasonably compensated within the meaning of the law if they receive two and one-half per centum on the corpus of the estate. This, with the compensation of the Fidelity Trust Company, the other executor under the special contract, will make the per centum of the executors four per cent.” Exception to this was filed by the appellees, and the court, in sustaining it, awarded them the three and one-half per cent commission which had been denied them on the adjudication of their account. We are satisfied that the conclusion reached by the auditing judge in his adjudication was the correct one, and no good or substantial reason is to be found in the opinion of the court sustaining appellees’ exception for disturbing the original finding. The decree allowing the appellees three and one-half per cent on the principal of the estate is reversed, and it is now ordered and decreed that they be allowed two and one-half per cent thereon, found in the adjudication to be reasonable compensation to them, the costs on this appeal to be paid by the estate.


author: Mr. Chief Justice Fell,

text:
    Commonwealth v. Hickman, Appellant.

      Criminal law — Murder—Misconduct of juror — New trial.

    1. The action of the court below in a murder case in overruling a motion for a new trial based on alleged misconduct of a juror will not be disturbed on appeal except for manifest error.

      Criminal law — Murder—Remarks of district attorney — Prompt correction.

    2. A verdict and judgment of murder of the first degree will not be reversed on appeal, although the remarks of the district attorney in his closing address suggested to the jurors a division with the court of the responsibility which rested upon them, and would tend to make them less careful in reaching a conclusion, where there was a prompt correction made by the trial judge who also gave clear and full instructions on the subject.
    Argued Feb. 6, 1911.
    Appeal, No. 50, Oct. T., 1911, by defendant, from judgment of O. & T. Beaver Co., March Sessions, 1910, No. 6, on verdict of murder of first degree in case of Commonwealth v. Charles E. Hickman.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    April 10, 1911:
    Affirmed.
    Indictment for murder. Before Holt, P. J.
    The opinion of the Supreme Court states the case.
    Verdict of guilty of murder of the first degree and sentence thereon. Defendant appealed.

      Error assigned was in overruling motion for new trial.

      J. Sharp Wilson, with him D. A. Nelson, for appellant.

      J. Blaine McGoun, district attorney, with him J. Rankin Martin, assistant district attorney; for appellee.
   Opinion by

Mr. Chief Justice Fell,

There was no denial that the appellant killed his wife, and no exceptions were taken at the trial to the rulings of the court on the evidence, nor to the instructions to the jury. The effort of the learned counsel was to reduce the degree of murder by proof that the appellant’s mind was clouded by intoxication and that there was no deliberate and premeditated attempt to take life. The assignments of error relate to the overruling of a motion for a new trial, based on the charge of misconduct of a juror and on statements made by the prosecuting attorney in addressing the jury. The misconduct alleged was that a juror, who on his voir dire had testified that he had not formed or expressed an opinion of the guilt or innocence of the prisoner, had in fact expessed an opinion that he was guilty and that he should be hanged. This matter was largely within the discretion of the trial judge, and his conclusion would not be disturbed except for manifest error. He investigated the charge and found it was not sustained, and we find that his conclusion was fully warranted by the testimony.

In the argument to the jury, the' prosecuting attorney said: “The court stands between the jury and the prisoner. There are thirteen jurors in the trial of this case, and if the jury makes a mistake, the court will correct it. The court will have the testimony all written out and will review it.” At this point he was interrupted by an objection and the judge said: “The court merely pronounces the sentence. It is for the jury to find whether or not the prisoner is guilty or not guilty of the offense.” The attorney then said: “I still say that if a mistake in the law has been made, on motion, your honor would overrule the verdict.” The judge added: “The court corrects matters of law, if any mistake in the law has been made by the court. It is for the jury to find the facts. They are judges of both the law and the facts in a trial of this kind. We suggest that the argument be modified.”

The remarks of the prosecuting attorney are open to the very grave objection that they suggested to the jurors a division of the responsibility which rested upon them and would tend to make them less careful in reaching a conclusion. We cannot, however, believe that in view of the prompt correction by the trial judge, and his clear and full instruction on the subject, that the appellant was in any way prejudiced.

We find no reversible error in any of the assignments. The judgment is affirmed and the record is remitted for the purpose of execution.


text:
    North Shore Railroad Company v. The Pennsylvania Company, Appellant
    (Nos. 1 and 2).

      Appeals — Preliminary injunctions — Practice—Supreme Court.

    On an appeal from decrees continuing preliminary injunctions until further orders of the court, where apparently there was sufficient ground for the action of the court, the Supreme Court will not depart from the established practice not to consider the merits until the cases are presented after final hearing in the common pleas.
    Argued Feb. 6, 1911.
    Appeals, Nos. 35 and 36, Oct. T., 1911, by defendant, from decree of C. P. Beaver Co., in equity, Sept. T., 191Q, Nos. 2 and 3, continuing preliminary injunction in case of North Shore Railroad Company v. The Pennsylvania Company, leasing and operating The Pittsburg, Fort Wayne & Chicago Railway.
    April 10, 1911:
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Holt, P. J.
    The nature of appeal appears by the opinion of the Supreme Court.

      W. A. McConnel, for appellant.

      Arthur E. Barnett and James L. Hogan, for appellee.
   Per Curiam,

These appeals are from decrees continuing, until further order of the court, preliminary injunctions restraining the defendant from interfering with the connection of the tracks of the plaintiff’s road with its own and from entering on the plaintiff’s right of way. They relate to the same subject-matter and were argued together. Apparently there was sufficient ground for the action of the court in awarding the ínjúnction and there is no reason why this court should depart from the established practice not to consider the merits until the cases are presented after final hearing in the common pleas.

The appeals are dismissed.


text:
    Smith v. Chester Traction Company, Appellant.

      Negligence — Street railways — Master and servant — Defective controller — Duty to inspect.

    In an action for damages for personal injuries the case is for the jury where the evidence showed or tended to show that the plaintiff, a motorman on the defendant’s road, was directed by the dispatcher to take out a car, that one controller of the car was found defective when first used on the trip, but that the motorman continued to run the car on this controller at the direction of the conductor, to a place where he would telephone for another car; that as he went on, the condition of the controller became worse and he received more severe shocks, but was able to manage the car without injury until he attempted to stop to avoid collision with another car, when in reversing the controller his arm was burned, he was made unconscious by the electric shock, and in the collision which resulted he was otherwise injured; and that the company’s cars were sent out without inspection and that the defect on the controller would have been disclosed by inspection.
    Argued Feb. 7, 1911.
    Appeal, No. 308, Jan. T., 1910, by defendant, from judgment of C. P. Delaware Co., June T., 1909, No. 185, on verdict for plaintiff in case of Edwin F. Smith v. Chester Traction Company. Before Fell, C. J.,
    Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Broomall, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for $5,155. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      J. B. Hannum, for appellant,
    cited: Mixter v. Coal Co., 152 Pa. 395; Clark v. Foundry Co., 219 Pa. 426; Vaughn v. Longmead Iron Works, 220 Pa. 347; Dickerson v. Central R. R. Co. of N. J., 189 Pa. 567; Price v. R. R. Co., 202 Pa. 176; Schneider v. Quartz Co., 220 Pa. 548; Jones v. Burnham, 217 Pa. 286; Talbot v. Sims, 213 Pa. 1; Simmons v. Traction Co., 207 Pa. 589.

      J. Dellaven Ledward and Joseph H. Hinkson, for appellee,
    cited: Fitzgerald v. Illuminating Co., 200 Pa. 540; Phila. & Reading R. R. Co. v. Huber, 128 Pa. 63; Lininger v. Air Brake Co., 210 Pa. 62; Gilbert v. Tanning Co., 221 Pa. 176; New v. Milligan, 27 Pa. Superior Ct. 516; Marsh v. R. R. Co., 206 Pa. 558; McConnell v. Penna. R. R. Co., 223 Pa. 442; Carr v. Fire Extinguisher Co., 224 Pa. 346; Brommer v. Railway Co., 205 Pa. 432; Lewis v. Seifert, 116 Pa. 628.
    April 10, 1911:
   Per Curiam,

The plaintiff was a motorman on the defendant’s road, and was injured under the following circumstances. Early in the morning he was directed by the dispatcher to take a car, that had a controller on either end, from the barn over a route some seven miles in length. He ran the car several squares to a point where the track connected with another track which he was to take. He then went to the other end of the car, and when he took hold of the controller, he received a slight electric shock. He informed the conductor of this, and was told by him to go on to a place where he could telephone for another car. As he went on, the condition of the controller became worse, and the shocks more severe. He was, however, able to manage the car without injury until he attempted to stop it to avoid colliding with another car on the same track.” When he reversed the controller and applied the brake for that purpose, his arm was burned and he was made unconscious by the electric shock, and in the collision which resulted he was otherwise seriously injured.

There was evidence that the company’s cars were sent out without inspection and that the defect in the controller would have been disclosed by inspection. The controller was defective when first used on the trip. The reasonable inference is that it was defective when it left the barn. This made out a prima facie case of negligence on the part of the defendant. WTiether the plaintiff was, under the circumstances, negligent in continuing to run the car, was not a question that the court could properly decide.

The judgment is affirmed.


text:
    Scott’s Petition.

      Taxation — Assessment—Appeal—Finding of fact.

    Where on an appeal by a landowner from the assessment of the county commissioners, the court has reduced the valuation to the public sale value, a finding of fact by it that such valuation is uniform with the valuation of other real estate throughout the county will not be disturbed except for manifest error.
    Argued Feb. 7, 1911.
    April 10, 1911:
    Appeal, No. 310, Jan. T., 1910, by Edgar T. Scott, from order of C. P. Delaware Co., March T., 1910, No. 90, in Re Appeal of Edgar T. Scott from assessment for taxation.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal under the Act of April 19, 1889, P. L. 38, from tax assessment.
    Broomall, J., found, inter alia, the following as a fact:
    We are convinced that there is no such thing in Delaware county as adjusting the tax valuations at a less sum than the public sale valuations, and that such a rule would be a bad one to adopt. [2]
    The opinion of the Supreme Court states the case.

      Error assigned among others was (2) above finding of the court.

      Lewis Lawrence Smith, for appellant.

      Frank G. Perrin, county solicitor, for appellee.
   Per Curiam,

The plaintiff’s property was assessed for taxation at $192,800. The court found that its public sale value was $130,000 and reduced the assessment to that amount. He claimed a further reduction on the allegation that the standard of valuation throughout the district was below the market value. The court found that the valuation of $130,000 was uniform with the valuation of other real estate throughout the county. This finding, to which an exception is taken has not only all the weight of a finding of fact by the court, but the rule that such a finding will not be disturbed except for manifest error applies to it with exceptional force because of the nature of the subject of inquiry.

The decree is affirmed at the cost of the appellant.


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    Newlin’s Estate.

      Marriage — Divorce—Insanity—Void or voidable marriages — Conflict of laws — Foreign divorce.

    1. A woman who obtains a divorce in New York under a law which declares a divorce operative from the date of the decree does not preclude herself from showing in a proceeding in this state that she was a lunatic at the date of the marriage and therefore was never married.
    2. Where at the time of a marriage.ceremony one of the contracting parties is a lunatic the marriage is absolutely void. In such case a subsequent decree of divorce does not render the marriage void, as in fact the marriage never had any legal existence. The only function of the decree is to render the fact of nullity judicially certain.
    Argued Feb. 7, 1911.
    Appeal, No. 4, Jan. T., 1911, by the Girard Trust Company and Arthur Newlin, Trustees, etc., from decree of O. C. Delaware Co., sustaining exceptions to auditor’s report in Estate of DeLancey V. Newlin, deceased. Before Fell, C. J.,
    Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of Isaac E. Johnson, auditor.
    The facts of the case appear in the following opinion by Broomall, J'., sustaining exceptions to auditor’s report:'
    DeLancey V. Newlin at the time of his death- was' a residént' of Delaware’ county; Pennsylvania'. ■ He died on April128, 1900, leaving' his last will and"testament date'd March 31, 1900, which was duly proven. By his said will the testator made certain provision for his wife, Grace W. Newlin, so long as she should live and remain unmarried. On March 30, 1908, a marriage between the said Grace W. Newlin and Arthur Greenfield was celebrated. The account now filed by the trustees under the said last will and testament assumes that the provision made by the testator in favor of the said Grace W. Newlin has ceased by reason of said marriage. The report of the auditor is in favor of this assumption. If this be true, the exceptions should be dismissed; otherwise they should be sustained. The auditor correctly states the question involved between the accountants and the exceptant to be, whether or not the marriage contract entered into between the exceptant and Arthur Greenfield on March 30, 1908, constituted a legal marriage. The parties have agreed that at the time of the said marriage ceremony, the said Grace W. Newlin was a lunatic. It appears that Grace W. Newlin having been restored to mental capacity instituted a divorce proceeding against Arthur Greenfield in New York, which culminated in a final decree on July 16, 1909, annulling the said marriage by reason of the lunacy of the said Grace W. Newlin. It further appears that according to the laws of the state of New York a decree of annulment of a marriage for causes therein stated, including lunacy of one of the parties, takes effect from the date of the decree.
    The parties have agreed that at the time of the said marriage ceremony, the said Grace W. Newlin was a lunatic. This being the fact the marriage was absolutely void: 2 Kent’s Commentaries, 76. Where we think the reasoning of the auditor goes awry is that this marriage has been voided by virtue of the decree of annulment; whereas in fact it never had any legal existence. True that a decree is only efficacious from its date, but the function of the decree only is to render the fact judicially certain. If there had been no annulment proceeding in New York, it might be available to the exceptant to prove the nullity of her marriage. In other words, a nullity does not arise from the decree of annulment, but follows as a necessary consequence from the fact agreed upon by the parties that she was a lunatic at the time it was performed.
    The nullity of a void marriage may be shown in any legal proceeding where it is a pertinent matter: Heffner v. Heffner, 23 Pa. 104; Thomas v. Thomas, 124 Pa. 646; Wayne Twp. v. Porter Twp., 138 Pa. 181; Clark’s Estate, 173 Pa. 451; Divvers’s Estate, 22 Pa. Superior Ct. 436.
    We have an analogous condition in Pennsylvania under the Act of April 14, 1859, P. L. 647, in respect to a decree of divorce where a marriage is absolutely void by reason of one of the parties thereto having a husband or wife living at the time. Provision is made in this act for a decree declaring the marriage null and void. The marriage is of course absolutely void, but the office of the decree is to have a record made of it, and to render it judicially certain. As was said by W. W. Porter, J., in Klaas v. Klaas, 14 Pa. Superior Ct. 550, "The act of 1859 provides a method by which a judicial record may be obtained, formally declaring void marriages which by the law are void and recited by the act itself to be void. It is a means furnished by the legislature for rendering facts and their effect judicially certain. It is in the nature of a proceeding in divorce. It is in aid of the party injured, and its beneficial provisions should be invoked and carried out by the persons so unfortunately situated as to be in need of its aid. We cannot concede, however, that a marriage void by reason of bigamy on the part of one of the parties is any the less void because proceedings were not brought under the act of 1859 to declare the marriage void.”
    We do not see that because Grace W. Newlin instituted proceedings for a divorce under a law which declared the divorce operative from the date of the decree of court, she has in any manner precluded herself from showing in this proceeding what she might have shown if there had been no such decree that she was a lunatic at the date of the marriage, and therefore was never married. The parties have in effect agreed that she was never married when they agreed that she was a lunatic at the time of the marriage ceremony.
    April 10, 1911:
    It therefore follows that the exceptant’s exceptions which challenge the credits distributing the income to the daughter of the decedent, and which challenge the distribution made by the auditor to the same person must be sustained, which is accordingly done. Counsel will prepare a decree in accordance with the above opinion.

      Error assigned was in sustaining exceptions to auditor’s report.

      George Quintará Horwitz, with him George T. Butler and Samuel Crowther, Jr., for appellants.

      Albert J. Williams, with him Thomas M. Rowlette, for appellee.
   Per Curiam,

The deceee appealed from is affirmed on the opinion of the learned judge of the orphans’ court.


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    Nivin v. Chester County Trust Company, Appellant.

      Corporations — Negligence—Trusts and trustees — Corporation bonds — ■ Cancellation of security — Estoppel.
    In an action by the holder of certain corporate bonds against the trustee, holder of the mortgage security, for damages for the unauthorized satisfaction of the mortgage, a verdict for the plaintiff was sustained where it was conceded that plaintiff left his bonds with the defendant with the mutual understanding and direction that they were not surrendered; that they were to be paid before the mortgage securing them would be satisfied; and that the defendant satisfied the mortgage because its officer, through a failure to recall the facts, was under the impression that the bonds had been surrendered: and the evidence discloses nothing in the defendant’s course of conduct, nothing in the negotiations preceding the sale, in the contract of sale, or resolution thereafter enacted for the satisfaction of the old mortgage, that deprived the plaintiff of his right to enjoy the protection of the mortgage securing his bonds.
    Argued Feb. 8, 1911.
    Appeal, No. 8, Jan. T., 1911, by-defendant, from judgment of C. P. Chester Co., Jan. T., 1910, No. 89, on verdict for plaintiff in case of S. E. Nivin v. The Chester County Trust Company.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for breach of a contract.
    In the charge, Butler, J., stated the facts to be as follows.
    It appears that the plaintiff, being a creditor of the White Clay Creek Supply Company, became the holder, in the first instance, as collateral, and afterwards the owner absolutely, of some twelve bonds of the company, secured by a deed of trust under which this defendant company was trustee. Later, the White Clay Creek Supply Company sold all its property to a new company, the Chester County Electric Company, which company proposed issuing a new mortgage, to take effect as soon as the old mortgage could be gotten out of the way, as soon as the outstanding bonds would be surrendered and the trustee, the defendant here, could properly satisfy that original mortgage. It was important, of course, to that end, that the outstanding bonds of the original company should be turned in to the trustee. And it appears that this plaintiff, being the holder of the twelve bonds in question and some other bonds, about which we need not concern ourselves, he having possession of them at the time, at least, turned them over to the defendant company and received a receipt from the company to the effect that these bonds were held subject to the plaintiff’s order. And the plaintiff testified more specifically as to what the arrangement was, and we understand it is not disputed that he said, at the time that these bonds were turned over, that they were to be held until they should be paid, the under.standing that he intended to convey and that he did convey, if his evidence is true — and we do not understand it to be disputed — being that he did turn in the bonds for the purpose of making it convenient to satisfy the mortgage, but the mortgage was not to be satisfied until the bonds would be paid.
    The defendant’s fourth point, with its answer, was as follows:
    4. The plaintiff having, as president of The White Clay Creek Supply Company, executed the deed to The Chester County Electric Company, by which the title to the real estate covered by the $50,000 mortgage and the title to the stock of The Kennett Electric Light, Heat & Power Company passed free and discharged of all liens, claims and charges, he could not subsequently set up an individual interest in said mortgage and stock and seek to hold the defendant liable for satisfying the mortgage and for delivering the stock to the purchaser of its mortgage, and the verdict must be for the defendant. Answer: That point is disaffirmed. [4]
    Verdict under direction of court for plaintiff for $7,702.51, and judgment thereon.
    In dismissing motion for new trial and judgment n. o. v., Butler, J., filed the following opinion:
    It is conceded on the trial and on the argument of this rule that plaintiff left his bonds with the defendant with the mutual understanding and direction that they were not surrendered and that they were to be paid before the mortgage securing them would be satisfied, and that the defendant satisfied the mortgage because its officer, through a failure to recall the facts, was under the impression that the bonds had been surrendered.
    Under these circumstances defendant concedes that it is responsible to plaintiff for the amount of his bonds, and that the verdict was properly directed against it, if the plaintiff was at the trial in a position to oppose satisfaction of the mortgage until his bonds would be paid. It is earnestly contended in behalf of the defendant that plaintiff’s official relations with The White Clay Creek Supply Company, and its subsequent participation in the negotiations, agreements, and contracts preceding, and consummating the sale of the property of his company to The Chester County Electric Company, which deal contemplated and provided for the creation of a new mortgage, by the purchasing company, required him to submit to an immediate cancellation of the old mortgage, that he could not require it to stand as security for the payment of his bonds.
    April 10, 1911:
    It would serve no useful purpose were we to discuss in detail the rather voluminous evidence, and we merely say that we can discover nothing in the defendant’s course of conduct, nothing in the negotiations preceding the sale, in the contract of sale, or resolution thereafter enacted for the satisfaction of the old mortgage that deprived the plaintiff of his right to enjoy the protection of the mortgage securing his bonds. On the other hand, we are of the opinion that the resolutions, the agreements, the entire scheme on which the deal between the two companies was promoted and consummated, contemplated that all outstanding bonds of the old mortgage should be paid, and that this mortgage could not and would not be satisfied until after their payment.
    The rules are dismissed.

      Errors assigned were (4) in disaffirming defendant’s point, and (6) in dismissing rule for new trial and judgment n. o. v.

      Alfred P. Reid, PL. H. Gilkyson and J. Frank E. Hause, for appellant.

      A. M. Holding, for appellee.
   Per Curiam,

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


author: Mr. Justice Elkin,

text:
    Mahanoy City, Appellant, v. Hersker.

      Fines — Estoppel—Borough ordinance — License fees — Voluntary payments.

      ■ A borough ordinance provided that no theatrical exhibition should be given without a license, with a penalty for each violation, and that the license fee should be $3.00 a day. The proprietor of a theater gave 306 exhibitions on separate days, and the borough demanded a license fee for each day. The demand being disputed, an ordinance providing for the granting of an annual license fee of $100 was duly passed by the borough council and advertised. The proprietor paid this fee to the secretary of council. The burgess vetoed the ordinance, but council by resolution accepted the payment, refusing, however, to issue the license. Demand for the return of the sum was made and refused, the money being paid over to the borough treasurer. The borough then demanded the payment of the $3.00 a day fee, which the proprietor refused to pay on the ground that an annual license fee had been paid. Suit to collect the day license fee was then brought. On appeal the Superior Court affirmed a judgment for the borough whereupon defendant paid to the treasurer $958.22, being the amount of the unpaid license fees and the judgment, interest and costs of the suit. The borough then brought suit to collect a penalty for each day a theatrical exhibition was given without having first obtained a license. Held, that as the borough had retained the $100 and had been at faftlt in having prematurely advertised the ordinance, and the delay in the payment of the $3.00 a day license fee being accounted for by reason of the litigation pending, it was the duty of the borough to return the $100 if it intended to deny the right to give exhibitions in pursuance thereof, and it was, therefore, estopped from making further collections.
    Argued Feb. 13, 1911.
    Appeal, No. 195, Jan. T., 1911, by plaintiff, from judgment of C. P. Schuylkill Co., Jan. T., 1910, No. 78, on verdict for defendant in case of Borough of Mahanoy City v. Christiana Hersker.
    Before Fell, C. J., Mestrezat, Potter;, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for fines for violation of an ordinance. Before Brumm, J.
    The facts appear in the opinion of the Supreme Court.

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

      T. H. B. Lyon, for appellant.
    The plaintiff is empowered to enforce a theatrical ordinance in a special manner, that is, by a fine, and it is limited to that manner. The ordinance itself provides that it shall be enforced by a fine, and that method is exclusive: Beltzhoover Borough v. Gollings, 101 Pa. 293; Santa Cruz v. Santa Cruz R. R. Co., 56 Cal. 143.

    An implied promise to repay does notarise from the mere fact that the party has received money which he ought to repay. There must be some fraud or constraint to support such an action: Bomgardner v. Blatt, 35 Pa. Superior Ct. 361; Edgar v. Shields, 1 Grant (Pa.), 361; Hinkle v. Eichelberger, 2 Pa. 483.; Ege v. Koontz, 3 Pa. 109; Speise v. McCoy, 6 W. & S. 485; Lackey v. Mercer County, 9 Pa. 318; Natcher v. Natcher, 47 Pa. 496; McCrickart v. Pittsburg, 88 Pa. 133.
    A voluntary payment cannot be recovered back, and, of course, cannot be the subject of a set-off, which is but a cross action: Steel v. Arnold, 8 W. N. C. 249; Montgomery’s App., 92 Pa. 202.

      R. P. Swank and A. D. Knittle, for appellee.
    The borough is estopped from now alleging that the acceptance of said $100 was an illegal act, and demanding the payment of penalties by defendant for not paying a license fee of $3.00 per day: Kneeland v. Gilman, 24 Wis. 39; Martel v. East St. Louis, 94 Ill. 67; Oshkosh v. State, 59 Wis. 425 (18 N. W. Repr. 324); Bank of U. S. v. Dandridge, 25 U. S. 64; Hasbrouck v. Milwaukee, 21 Wis. 217; Railway Co. v. McCarthy, 96 U. S. 258; Daniels v. Tearney, 102 U. S. 415.
    Where money is paid borough with notice that same is paid as a settlement in full, it cannot retain possession of same against protest of payer without accepting same as a settlement in full: Washington Nat. Gas Co. v. Johnson, 123 Pa. 576.

      April 10, 1911:
   Opinion by

Mr. Justice Elkin,

If the parties had acted wisely the matters in litigation here would have been adjusted by themselves without asking the intervention of the courts. The controversy grows out of the attempt of the appellant borough to exact a license fee each day for giving theatrical exhibitions by appellee. The ordinance of 1905, among other things, provides that no theatrical exhibition shall be given in said borough without a license and that the license fee shall be $3.00 per day. Appellee gave 306 theatrical exhibitions on separate days and the borough demanded a license fee for each day on which these exhibitions were given. The right of the borough to exact a license fee in the sum of $3.00 for each consecutive day for a period of time covering almost a year was disputed and the justice of such a demand was seriously questioned. The borough council, evidently impressed by the equities suggested, undertook to grant relief by providing for the payment of an annual license fee of $100. An ordinance was duly passed by the council and advertised providing for the granting of an annual license. Appellee presumably acting upon the assumption that this was a valid ordinance paid to the borough authorities the annual license fee. In the meantime the burgess vetoed the ordinance and the borough council refused to direct the issuance of the annual license. Appellee was notified of this refusal and of the invalidity of the ordinance under which payment of the annual license fee had been made. At the meeting when the veto message of the burgess was read the borough council passed a resolution accepting the $100 in payment of the annual license fee. The money had been paid to and was held by an officer of the borough council at that time. Subsequently the husband of appellee demanded the return of the $100 which was refused. After some contention the secretary of council paid the money to the borough treasurer in whose hands it has remained from that time to the present. After the veto of the ordinance providing for the granting of an annual license the borough authorities demanded the $3.00 a day license fee under the ordinance of 1905, with which demand appellee refused to comply. The ordinance of 1905 also provided a penalty of not less than $5.00 nor more than $25.00 for each offense violating any of its provisions. The borough then brought suit to collect the penalty for failure to take out and pay for the day license.- This suit was tried first before a justice of the peace, then appealed to the court of common pleas and finally to the Superior Court. It was decided in favor of the borough: Mahanoy City Boro. v. Hersker, 40 Pa. Superior Ct. 50. While the appeal was pending in the courts appellee tendered payment of a license fee at the ■rate of $3.00 for each day on which a theatrical exhibition had been given, upon the condition that if the suit was decided in her favor the money so tendered should be returned to her. Council refused the conditional tender and thus matters stood until the case was decided. After the opinion in that case had been handed down by the Superior Court affirming the judgment of the court below, appellee tendered to the burgess $958.22, being the amount of the unpaid license fees, the judgment, interest and costs in the suit which had been decided against her. The burgess refused the tender and she then paid the money to the borough treasurer. While the appeal was pending in the Superior Court appellee filed a bill in the court below asking that appellant be restrained from bringing a multiplicity of suits for penalties until the questions in dispute were finally decided. The injunction issued and no further suits were instituted until after the Superior Court had handed down its opinion. The present suit was then brought to collect a penalty for each day on which a theatrical exhibition was given without having first' obtained a license. The case was tried in the court below and a verdict returned in favor of the defendant, on which verdict a judgment was entered. The assignments of error raise many questions relating to the theory upon which the case was tried and the rulings of the trial judge in disposing of the questions involved. No useful purpose will be served by discussing the numerous specifications of error. We agree that the legal rights of the parties were not clearly defined in the instructions to the jury and that some technical errors were committed in submitting the questions at issue. The case was made to turn upon the equitable rather than upon the legal rights of the parties. The suit was brought to collect penalties, and if it could be sustained.at all, the question for the jury to determine was what the amount of the penalties should be. It was not a suit to collect the unpaid license fees. If under the circumstances the license fees were paid at such a time and in such a manner as to satisfy the requirements of the ordinance, there could be no recovery of the penalties. On the other hand, if under the facts, the license fees were not paid, suit was properly brought to collect the penalties, unless the borough was estopped by reason of what occurred from asserting its right to collect them. The case was not tried upon this theory, but the jurors were instructed, if they found in favor of appellant on the question of collecting the penalties, they should set off against whatever sum they found to be owing on account of the penalties, the amount of fees paid to the borough treasurer. The verdict cannot be sustained upon this theory of the case. The position of the appellee here is that the borough is estopped under all the facts developed at the trial from collecting the penalties. There is no doubt that the doctrine of estoppel applies to municipal as well as to private corporations and persons. Text writers and courts very generally take this view of the application of the doctrine. Whether a municipal corporation is estopped by the acts of its officers depends upon the facts in each particular case. It is often difficult to determine whether the facts relied on are sufficient to warrant a court in holding that the municipality is estopped. The case at bar is a good illustration of this difficulty. The voluntary payment of the unpaid license fees after the termination of the former suit to the borough treasurer after refusal of the council to accept the sum tendered, might not itself be sufficient to estop the borough council. It may, however, be considered in connection with other facts in arriving at a proper conclusion. The payment of the annual license fee raises a different question. It is true that the ordinance providing for the granting of an annual license was vetoed by the burgess and therefore never was in force. Notwithstanding this situation the borough council did pass a resolution to accept the $100 in full payment of the annual license and the borough has retained this money in its treasury from that time to the present. The borough now has in its treasury the annual license fee, all of the day license fees, the judgment, interest and costs of the former suit, amounting to more than $1,000. The borough authorities were clearly at fault in advertising the annual license ordinance before its approval by the burgess and this may have misled appellee. It was certainly the duty of the borough to return this money if they intended to deny the right of appellee to give theatrical exhibitions in pursuance thereof. This was not done and no sufficient reason is given why the money was not returned. It will not do for the borough council to say this matter was beyond its control. It was originally paid to an officer of council and was by its secretary paid over to the treasurer after the resolution had been passed accepting it in full payment of the annual license fee. The payment to the treasurer must be considered tinder all the circumstances as the act of council. The payment of the $3.00 a day license fee was not made before each performance was given, but this was accounted for upon the ground that the right of the borough to impose the fee was challenged and the controversy was then pending in the courts. As soon as the validity of the ordinance was declared by the courts, all of the license fees were paid. There is now in the borough treasury not only the license fees based upon the number of days the exhibitions were given but in addition the annual license fee covering the same period of time. Taking into consideration all these facts no violence is done the rule by holding that the borough is estopped from making further collections on account of this much litigated and vexatious matter. On this ground the judgment of the court below is affirmed.


text:
    Weaver, Appellant, v. Phillips.

      Libel — Newspapers—Nonactionable words — Want of special damage— Nonsuit.

    1. A newspaper article that merely reflects upon the condition of morals as not forbidding voters from accepting money in connection with politics even for purposes expressly authorized by law, and that alleges that the plaintiff received an appointment to office as a reward for political activity which resulted in the defeat of his own brother, is not libelous per so.
    2. Where, in an action of trespass for libel, the article complained of is not libelous per se, and there is no allegation of special damages in the pleadings nor any proof of such at the trial, a nonsuit is proper.
    Argued Feb. 13, 1911.
    Appeal, No. 250, Jan. T., 1911, by plaintiff, from judgment of C. P. Lycoming Co., Dec. Term, 1908, No. 216, directing nonsuit in case of Byron A. Weaver v. H. G. Phillips.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass for libel.
    At the close of plaintiff’s case, the defendant offered the following motion which was granted:
    And now, October 8, 1909, before offering any evidence on behalf of the defendant, counsel for the defendant move the court for a compulsory nonsuit for the reason that the article declared on is not libelous per se and there is no allegation of special damage.
    Hart, P. J., in refusing to take off the nonsuit, filed the following opinion:
    This is a motion to take off nonsuit entered at the close of the plaintiff’s testimony in an action of trespass for libel.

      The defendant was and is the publisher of a newspaper published in the borough of Montoursville, in this county, called “The Republic.”
    The plaintiff was, at the time of the publication complained of, postmaster and a citizen and voter in that borough.
    On October 26,1908, the defendant published in “ The Republic” the article declared upon and complained of which is as follows:
    “The Same Old Story.
    “Who was surprised at the local names appearing in that list of disseminators printed in ‘The Sun’ this evening. One familiar with the operations of the Boss, and his suckers, guessed all the names before they were made public. It is not to be believed that all the fellows got money. In some cases, it is believed, the money went to somebody else and the other fellow’s name appears. In brief, there is nothing new or surprising so far as local conditions are concerned. Things have been equally as bad within our borough ever since the Boss was made postmaster as a fitting reward for defeating his brother who was the regular Republican nominee for Sheriff. When treason is rewarded instead of punished, conditions soon become too bad for comparison.”
    The article referred to, as published in “The Sun,” is fully set forth in the plaintiff’s declaration and shows that the name of Byron A. Weaver, plaintiff, does not appear in the list of disseminators referred to in the publication complained of, nor does the article complained of state that it does.
    It is complained by way of innuendo in the plaintiff’s declaration that the words imply that the plaintiff has corruptly solicited and received money from one Elias Deemer, a candidate for congress, for the purpose of corruptly and unlawfully influencing his own vote and the votes of others at the primary election. And it claimed further by way of innuendo that the article complained of means that the plaintiff had agreed to receive from some one unknown the office of postmaster as a reward for his vote and influence against his brother George W. Weaver, when a candidate for sheriff of Lycoming county. It does not seem to us that either of these inferences can legitimately be drawn from the publication complained of.
    It would be placing an undue restraint upon the public press to prohibit publication of the statements filed by candidates for office showing their expenditures as required by law, as one of the manifest purposes of the act requiring it, is publication, and there is nothing in the article complained of that goes further than to reflect upon the condition of morals that does not forbid the voter from accepting money in connection with politics even though received for purposes expressly authorized by law. The inference cannot be legitimately drawn from the article that the plaintiff received money to influence his vote or the vote of anyone else.
    The innuendo relating to his receiving the appointment of postmaster as a reward for opposing his brother for sheriff is, if anything, still further remote and unwarranted. It is not and never has been considered a reflection upon a voter to receive an appointment to office as a reward for political activity, even though such activity might result in the defeat of a brother. No law forbids or prohibits it.
    It might be some evidence of an unnatural estrangement, but such is not a crime nor does it involve moral turpitude. The article does not say nor can any such inference be drawn therefrom that the plaintiff opposed his brother and voted against him by reason of a promise that he should receive as a compensation therefor the appointment of postmaster. This would be charging him with an offense which is made a misdemeanor. No such charge is made by the defendant, and there is therefore nothing in the publication that can be construed so as to warrant or support the innuendo declared upon.
    In Pittsburg, Allegheny & Manchester Passenger Railway Co. v. McCurdy, 114 Pa. 554, Justice Clark says: “Words, it is true, are not construed in mitiori sensu, it is sufficient if in their plain or popular meaning they are libelous, but when they do not in themselves convey the meaning imputed to them in the innuendo, or where they are ambiguous or equivocal, there must be, not only in the pleadings but also in the proofs reference to some extrinsic matter which will show the sense in which they were understood.”
    April 10, 1911:
    In Price v. Conway, 134 Pa. 340, Justice McCollom says: “An innuendo cannot introduce new matter, or enlarge the natural meaning of words, or put upon them a construction they will not bear.”
    There is no allegation of special damages in the pleadings nor is there any proof of such.
    “Special damages are such as the law will not infer from the nature of the words themselves. They must therefore be specially claimed in the pleadings, and evidence of them must be given at the trial:” Ripple v. Little, 5 Lack. Jurist, 193; 13 Am. & Eng. Ency. of Law (1st ed.), 434.
    We are satisfied after a careful examination of the evidence and the Jaw applicable thereto that we would not have been justified in refusing the defendant's motion for nonsuit.
    And now, February 19, 1910, motion to take off compulsory nonsuit is overruled.

      Error assigned was in granting nonsuit.

      John E. Cupp and Mortimer C. Rhone, for appellant.
    ■ Seth T. McCormick and Seth T. McCormick, Jr., for appellee.
   Per Curiam,

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


text:
    Haynes, Appellant, v. Penfield.

      Negligence — Master and servant — Contributory negligence — Disobedience of orders — Improper use of machine.

    1. One who recklessly encounters a known danger, and thereby directly contributes to his injury, cannot escape the effect of this negligence because the unknown negligence of the defendant, which concurred to produce the injury, made the danger greater than he supposed it was.
    2. In an action by a woman to recover damages for injuries to her hand, a nonsuit is properly entered where it appears that after the plaintiff had been instructed repeatedly not to place towels between ■ the rolls from the back of the mangle at which she worked, and had been warned of the danger in so doing, in attempting to place a towel between the rolls in disobedience of the instructions, her fingers were caught and injured as far as the first joints before the mangle was stopped; that a few seconds afterwards, and while her fingers were between the rolls, the mangle again started and her hand was drawn still further in and severely injured; that the mangle was stopped by shifting the belt; and there is testimony that the device for stopping the mangle was defective in such a way that the machine would start again unless pressure upon the treadle which shifted the belt was continued, of which defect the defendant had notice.
    3. In such a case the relation of the plaintiff’s negligence to her injury, as the proximate cause thereof, was not changed by any intervening act of the defendant, whose antecedent negligence was at most but a remote cause which increased the severity of the injury.
    4. An employer is under no duty to guard against the improper use of a machine.
    Argued Feb. 15, 1911.
    Appeal, No. 20, Jan. T., 1911, by plaintiff, from order of C. P. Lycoming Co., Dec. T., 1909, No. 16, refusing to take off nonsuit in case of W. R. Haynes and Mary Ellen Haynes v. Anne M. Weightman Walker Penfield. Before Fell, C. J.,
    Brown, Mestrezat, Elkin, and Moschzisker, JJ.
    Affirmed.
    Trespass for personal injuries. Before Hart, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      April 10, 1911 :

      Max L. Mitchell, for appellant,
    cited: Thirteenth & Fifteenth Pass. Ry. Co. v. Boudrou, 92 Pa. 475; Sharrer v. Paxson, 171 Pa. 26; Berry v. Sugar Notch Borough, 191 Pa. 345; Northern Cent. Ry. Co. v. State, 29 Md. 420; Davies v. Mann, 10 M. & W. 546; Cleveland, C. C. & St. L. Ry. Co. v. Klee, 154 Ind. 430 (56 N. E. Repr. 234); Weitzman v. Ry. Co., 33 N. Y. App. Div. 585 (53 N. Y. Supp. 905); Bogan v. R. R. Co., 129 N. C. 154 (39 S. E. Repr. 808).

      Edgar Munson, of Candor & Munson, for appellee,
    cited: Creed v. Penna. R. R. Co., 86 Pa. 139; Heil v. Glanding, 42 Pa. 493.
   Opinion by

Mr. Chief Justice Fell,

■ This appeal is from a refusal to take off a compulsory nonsuit. A woman fifty-four years of age was engaged in ironing towels in the laundry of a hotel. Her duty was to stand at the back of a mangle and to remove towels that had passed between the rolls. She had been instructed repeatedly that if a towel was imperfectly ironed, and it was necessary to pass it between the rolls a second time, to hand it to the woman at the front of the mangle and not to place it between the rolls from the back where she stood, and she had been warned and had heard others warned of the danger in so doing. She disobeyed the instruction and placed a towel between the rolls by reaching over the top of the mangle. Her fingers were caught and injured as far as the first joints before the mangle was stopped. A few seconds after it had been stopped and while her fingers were between the rolls, the mangle again started, and her hand was drawn further in and more severely injured. The mangle was stopped by shifting the belt from a fixed to a loose pulley by means of a treadle. There was testimony tending to show tha.t because the line and countershafts were not in exact alignment the belt would slip back on the fixed pulley and start the mangle unless pressure on the treadle was continued for a short time after the belt had been shifted, and that of this defect in the appliance the defendant had notice.

It is conceded that the plaintiff was negligent in putting her hand in a place of danger of which she knew and that there could be no recovery for the injury to the ends of her fingers, but it is argued that for the additional injury, caused by the starting of the mangle, she was entitled to recover. This contention cannot be sustained. The proximate cause of the accident was the plaintiff’s negligence in putting her hand near the rolls at the back of the machine. If the whole of the injury to her hand had been done before the mangle was stopped or if there had been a delay in stopping it because of a defective appliance, her contributory negligence would have prevented a recovery. “One who recklessly encounters a known danger, and thereby directly contributes to his injury, cannot escape the effect of this negligence because the unknown negligence of the defendant, which concurred to produce the injury, made the danger greater than he supposed it to be:” Thompson on Neg. (White’s Supp.), sec. 186. The relation of the plaintiff’s negligence to her injury, as the proximate cause thereof, was not changed by any intervening act of the defendant. The antecedent negligence of the defendant was at most but a remote cause which increased the severity of the injury. The case therefore does not come within the exception to the general rule that any negligence of a plaintiff that contributes directly and proximately to bringing about the injury bars a recovery, that is recognized when notwithstanding the plaintiff’s negligence in getting into danger, he is injured by the subsequent negligence of the defendant, who after discovering the danger could have avoided the injury by the exercise of ordinary care. Nor is it the case of an employee who having assumed the risk of a business, is exposed by the negligence of the employer to dangers of which he had no knowledge. The plaintiff deliberately violated her instructions and exposed herself to a danger against which she had been warned. The defect in the appliance for stopping the machine exposed no one to danger in the proper use of the mangle, and against its improper use the defendant was under no duty to guard. The eases of Thirteenth & Fifteenth St. Railway Co. v. Boudrou, 92 Pa. 475; Sharrer v. Paxson, 171 Pa. 26; Berry v. Borough of Sugar Notch, 191 Pa. 345, and Northern Cent. Railway Co. v. State, 29 Md. 420, relied on by the appellant are without application.

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Sloan, Appellant, v. Philadelphia & Reading Railway Company.

      Negligence — Railroads—Act of April 4, 1868, P. L. 68.

    1. Where a person drives a buggy on the premises of a railroad company for the purpose of superintending the work of his employee in unloading a car of coal on a siding belonging to the railroad company, and after so doing continues to drive along the siding for about 100 feet, and then turns across the tracks at a permissive crossing and is struck and injured by a train negligently operated, such person is not barred from recovering damages from the railroad company by reason of the Act of April 4, 1868, P. L. 58.
    2. In such a case as the plaintiff’s business of superintending the work he had on hand on the railroad company’s premises had ceased, and as he was on his way at the time of the accident to attend to business with which the railroad company was not related, he was no longer in the position of a fellow servant of the railroad company’s employee whose negligence caused the accident.

      Practice, C. P. — Perverse verdict — New trial — Judgment non obstante veredicto.

      3. The credibility of testimony in general is for the jury, and the remedy for a perverse verdict, or one against the weight of the reasonable and properly credible evidence, is a new trial — a remedy that ought to be freely applied whenever the verdict in the opinion of the court is perverse in the sense that it goes beyond the limits of a reasonable difference of opinion upon the facts as found or admitted. But the remedy in this form is not the same as that of nonsuit, and care should be taken to avoid confusing them; and this applies equally when judgment non obstante is resorted to as a remedy.

      Argued Jan. 19, 1911.
    April 10, 1911:
    Appeal, No. 264, Jan. T. 1910, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. T. 1906, No. 5,020, for defendant non obstante veredicto in case of John J. Sloan v. Philadelphia & Reading Railway Company.
    Before Fell, C. J., Beown, Mesteezat, Pottee, Stewaet and Moschziskeb, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    The opinion of the Supreme Court states the facts of the case.
    Verdict for plaintiff for $14,638. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      Augustus Trask Ashton, with him Maurice V. Daniels and Victor Frey, for appellant.
    The act of 1868 has no application, unless the plaintiff at the time of the accident was engaged in railroad work: Spisak v. B. & O. R. R. Co., 152 Pa. 281.
    Plaintiff was not engaged in railroad work at the time of the accident: Christman v. Railroad Co., 141 Pa. 604.

      Wm. Clarke Mason, for appellee.
    The act of 1868 applies: Spisak v. Railroad Co., 152 Pa. 281; Baltimore & Ohio R. R. Co. v. Colvin, 118 Pa. 230; Keck v. Railroad Co., 206 Pa. 501; Mulherrin v. Railroad Co., 81 Pa. 366; Penna. R. R. Co. v. Price, 96 Pa. 256; Fleming v. Railroad Co., 134 Pa. 477; Foreman v. Railroad Co., 195 Pa. 499.
   Opinion by

Mr. Justice Stewart,

A former appeal in this case, reported in 225 Pa. 52, was from a judgment of nonsuit; here it is from a judgment for defendant non obstante. In a per curiam opinion in the former appeal we held that the plaintiff having affirmatively made out by testimony, which if believed showed a case clear of contributory negligence; whether it was rebutted or not by other testimony, was for the jury, and the judgment was accordingly reversed. Upon submission of the case in the latest trial, — it. has been tried three times,— after a charge pronouncedly favorable to the defendant, the jury again found for the plaintiff. Except as the evidence produced by the plaintiff on this trial differs in some material respect from .that produced on the former, our adjudication there as to its sufficiency to make out a prima facie case, must be regarded as final and conclusive. That there is any such variance is not pretended. Indeed it was admitted upon argument that the evidence was practically the same. The questions touching this feature of the case, so elaborately discussed in the opinion filed making absolute the rulé for judgment n. o. v. and by the counsel in their argument before us, do not call for consideration. On the trial the court was asked to hold that the case fell within the provisions of the Act of April 4, 1868, P. L. 58, which provided that when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, the person so injured is to be held a fellow-servant with the employees of the railroad company if, when so acting, he is not a passenger. The cause of action here arose before the repeal of this statute. The point was reserved for the consideration of the court in banc, and in connection with the motion for a new trial and judgment non obstante was affirmed. This raises, the only question in the case. The plaintiff’s business was that of general hauling. Among other things it was his business to unload the coal from cars on the defendant company’s siding and haul it to the pumping station some distance away. This he had done for several years under contract, and some of his employees and teams were engaged upon this work on the day of the accident. The siding paralleled the railroad tracks, and along the siding was a driveway. The plaintiff drove along this way in his buggy and stopped to speak to his employee, Rex, who was then on a car shoveling coal. The latter, called by plaintiff as a witness, says that plaintiff stopped, got out of his buggy and came upon the car where he was at work. The plaintiff denies that he was on the car, and says that his conversation with the witness was from his buggy. The difference in the testimony is very marked, but we cannot say that it is material. While plaintiff’s case does not disclose what passed between the plaintiff and his employee, yet from plaintiff’s own testimony it sufficiently appears that whether he remained in his buggy or got upon the car, his purpose in being where he was, on premises of defendant, was in connection with the unloading of the cars and the hauling the coal which he had engaged to do, and which he was then doing through his employee. Even without such admission, a presumption would arise that this was the fact from his presence there, and his interest in the work which he was having done. The plaintiff’s testimony on this point is somewhat evasive. In the course of his examination many opportunities were given him to say what his purpose was in stopping to see Rex. The nearest he came to direct answer to any question was when asked the following on cross-examination: “Q. Isn’t it true that you were [there] engaged in unloading this coal yourself prior to the Saturday that you were hit, and that on that Saturday you came there to see Rex that he was doing it properly? A. I told you, and his Honor and the court at large, that I had to superintend all my work— not that one thing, but all my work.” This followed: “Q. And you went there this day to superintend? A. And I superintended it right along, with the rest of my work.” From these answers, and the general facts in the case giving rise to the presumption we have above indicated, we are of opinion that the court was justified in concluding that plaintiff was there at the siding engaged and employed in work which it is ordinarily the duty of railroad employees to perform. Upon leaving Rex, plaintiff drove along the siding a distance of about 100 feet when he came to a roadway running east and crossing the tracks of the railroad. Here he turned to the right, and in crossing the tracks was run down by a passing train. Both roadways are within the defendant’s right of way. In view of the conclusion reached as to the nature of the employment plaintiff was engaged in when at the siding, it is unnecessary to inquire whether the driveway leading to and from defendant’s siding was only in a limited sense the premises of the railroad company, because of the general use of it allowed the public. Any question in regard to this matter would become material only in case it had appeared that plaintiff’s work had no relation to railroad work as such, and was connected with the railroad only by irrelevant and immaterial circumstance of locality: Spisak v. Railroad Co., 152 Pa. 281. The case is reduced to a single inquiry — can it be said that the plaintiff was employed and engaged about railroad work within the meaning of the act when he was crossing the tracks of the company, and met with his injury? He was then on his way to attend to business with which the railroad company was not related in any way whatever. So long as he was engaged in personally superintending the unloading of the coal, he was doing the work which properly belonged to the railroad company. He was therefore doing it on their behalf, and stood towards the company in the relation of an employee. Had he been injured while upon or about the cars on the siding superintending the work in which his immediate representative or servant was engaged, he would unquestionably have come within the provisions of the act, and he could have no right of recovery for injuries resulting from the negligence of a coemployee. But the business of superintending the work had, at least for the time being, ceased, and he was proceeding elsewhere when the accident occurred. This circumstance brings the case within the ruling in Baird v. Pettit, 70 Pa. 477. It was there held that the relation of master and servant ceased when the employee quit work at the close of the day and was leaving the building to go to his home. The accident for which recovery there was allowed occur-cured outside the building in which plaintiff had been employed. Upon leaving the building to go to his home he fell upon a pile of dirt and rubbish on the sidewalk in front of the premises, a few feet from the steps of the building, which one of defendant’s employees had negligently left there. The language used in the opinion of the court in that case is directly applicable here. ‘ ‘ But there is another reason for holding the rule which exempts a master from liability for an injury occasioned by the negligence of a servant does not apply in this case. The relation of master and servant did not exist between the parties when the plaintiff received the injury. He was not then in the service of the defendant; he had quit work and was on his way home. He was no longer subject to the defendant’s control and bound to obey his orders. As soon as he left the building he was his own master. He was then no more in the defendant’s service than any other citizen passing along the street, and he was entitled to the same rights and immunities. If the relation of master and servant did not cease when he left the building, after his day’s work was done, when did it? It cannot be pretended that it followed the plaintiff home, and remained with him while there. And if not, it must have ceased when he left the building, and he had the same right to an unobstructed sidewalk in front of the defendant’s premises as any other citizen, and if injured by a dangerous obstruction, the same remedy for an injury.” Granted that this plaintiff’s use of the crossing was only permissive, nevertheless, not being at the time engaged in work for the railroad company, he was entitled to the same rights and immunities as any other citizen using the same privilege. The evidence shows that this crossing was used largely by the public. There can be no reason for holding that this plaintiff, while using a crossing which was open to the public going about business with which the railroad company had no relation, was to be regarded as an employee of the company. As we view it the case does not fall within the provision of the act, and the judgment non obstante calls for reversal.

The opinion filed in granting the judgment n. o. v. clearly reveals the attitude of mind of the judges who have presided in the several trials of this case. Each has shown settled distrust of the evidence produced on behalf of the plaintiff. But for this distrust the nonsuit would not have been granted on the second trial. In reviewing that case we found occasion to say: "The credibility of testimony in general is for the jury, and the remedy for a perverse verdict, or one against the weight of the reasonable and properly credible evidence is a new trial— a remedy that ought to be freely applied whenever the verdict in the opinion of the court is perverse in the sense that it goes beyond the limits of a reasonable difference of opinion upon the facts as found or admitted. But the remedy in this form is not the same as that of nonsuit, and care should be taken to avoid confusing them.” What is here said applies equally when judgment non obstante is resorted to as a remedy. If the court was of opinion that this verdict was perverse, the motion for a new trial should have prevailed; instead, however, it was discharged, and a mistaken and inappropriate remedy adopted.

The assignment of error is sustained, the judgment is reversed, and the record is remitted with directions to the court below to enter such judgment as law and right require.