author: Mr. Justice Potter,

text:
    Vautier v. Atlantic Refining Company, Appellant.

      Nuisance — Oil refining — Negligence—Evidence—Damages.
    1. In an action to recover damages for injuries to growing crops of vegetables alleged to have been caused by noxious products from an oil refinery, the plaintiff is not bound to prove negligence on the part of the defendant company in the operation of its works. The action in such a case is for damages occasioned by the maintenance of a nuisance.
    2. Where land is used for manufacturing purposes the maxim sic utere tuo ut alienum non lades applies.
    3. In aii action against an oil refining company to recover damages for injuries to crops alleged to have been caused by noxious fumes, the measure of damages is the value of the crops alleged to have been destroyed.
    4. In such a case where a witness for the defendant had put the plaintiffs in the position of chronic eomplainers, it is competent to ask him upon cross-examination whether he had not received complaints from other persons than the plaintiffs.
    • 5. In an action for damages for nuisance it is not permissible to permit, a witness to testify against objection that the defendant company. had annual argreements with people other than the plaintiffs, in the vicinity, to compensate them for damages done by the smoke from its works.
    6. It is error in such a case to reject testimony offered by the defendant to show that the vegetation at the same place showed substantially the same kind of injury in subsequent seasons when the works of the defendant were not in operation.
    Argued Jan. 13, 1911.
    Appeal, No. 339, Jan. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1906, No. 983, on verdict for plaintiffs in case of Charles Vautier et al., late trading as Vautier Brothers, v. Atlantic Refining Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for injuries to a crop of vegetables. Before Barratt, J.
    At the trial a witness for defendant was asked this question:
    “Q. Were the Vautiers the only people you ever received complaints from in the spring and fall about the smoke from that stack? ”
    Objected to by counsel for defendant. Objection overruled; exception to defendant. [6]
    “Q. Were the Vautiers the only people you got complaints from in the spring at all? A. No. Q. As a matter of fact, Mr. Houpt, did’nt your company have agreements, annual agreements, with certain people there in the Neck for reimbursement for damages done them by your smoke?
    A. Yes.”
    Mr. Brown: I object to that and ask that the answer be stricken out.
    The Court: “ Q. Do you mean as to vegetables? A. Why, there were certain people.”
    Mr. Brown: I object to this, your honor.
    The Court: I want to have sufficient evidence upon which to base a ruling on your objection, Mr. Brown.
    Mr. Brown: Then I don’t object, your honor.
    The Court: I will overrule the objection and give you the exception, Mr. Brown. [7]
    “Now, Mr. Houpt, were or were not the appliances used by the Atlantic Refining Company the most effective and approved known appliances for the purposes for which they were intended?
    Objected to by counsel for plaintiff. Objection sustained; exception to defendant. [8]

      Mr. Brown: I offer to prove by this witness that yesterday he collected salad,, or spinach, from a farm right in this neighborhood, that was lousy, just as the witnesses have testified to, and it shows the same appearance as the plaintiffs contend resulted from the fumes of this stack.
    Mr. Stevenson: I object to it. This was done yesterday.
    Mr. Brown: I want to show that the very condition of the spinach to-day is the same and that it has the same appearance that Mr. Vautier's had, and this stack has been but of work now for two or three years.
    Mr. Stevenson: I still object to it.
    Objection sustained; exception to defendant. [9]
    The court charged in part as follows:
    [Both the plaintiffs and the defendant were engaged in legitimate enterprises, the one as farmers and other as refiners of oil, and each had the absolute right to the enjoyment of their property, though neither was permitted under the law to so use their property as to destroy the products of the other.] [10]
    Defendant presented these points:
    2. If you find that defendant used the most effective and approved known appliances to control the emission of soot from the chimney of the sweetening plant, then no lack of care could be imputed to it, and if nevertheless some soot did escape and settle on plaintiffs' crops, the injury, if any, would be damnum absque injuria and your verdict should be for the defendant. Answer: Refused. [3]
    3. If you find that the plaintiffs suffered a loss on a certain character of truck raised by them in 1903 or other periods before the time for which damages are herein claimed, that the methods used by defendant which caused the loss were still being continued and with a knowledge of probable loss, they still endeavored to raise that kind of truck under those conditions, the true measure of damage is not the value of their crops .destroyed, but the loss they would, have sustained, if any, by being compelled to raise other and less productive crops. Answer: Refused. [4]
    Verdict and judgment for plaintiffs for $2,761.86. Defendant appealed.

      Errors assigned were (3, 4-10) a,bove instructions, quoting them; (6-9) rulings on evidence, quoting the bill of exceptions.

      Francis Shurik Brown, with him Alex. Simpson, Jr., for appellant.
    There was no evidence of negligence: Stewart v. DeNoon, 220 Pa. 164.
    It was error to admit evidence of annual agreements between appellant and other truckers for compensation for injuries which they alleged were caused by appellant’s works; and also in admitting evidence of former complaints made by appellees and compromises between appellant and appellees: Featherman’s Administration v. Miller, 45 Pa. 96; Cummings v. Gann, 52 Pa. 484; B. & O. R. R. Co. v. Colvin, 118 Pa. 230; Aiken v. Penna. R. R. Co., 130 Pa. 380; Veit v. Brewing Co., 216 Pa. 29.
    An attempt to settle a disputed claim has always been held irrelevant to prove that claim: Slocum v. Perkins, 3 S. & R. 295; Folwell v. Beaver, 13 S. & R. 311; Green v. Bauer, 15 Pa. Superior Ct. 372; Fisher v. Fidelity Mut. Life Assn., 188 Pa. 1.
    The learned trial judge erroneously excluded evidence as to the use of the most approved appliances in appellant’s plant: Harvey v. Coal Co., 201 Pa. 63.
    The true measure of damages in this case is the difference between what appellee might reasonably have made by growing the vegetables susceptible to injury, and what he might have made by growing other crops: Foehr v. R. R. Co., 40 Pa. Superior Ct. 7.
    The trial judge erred in excluding testimony as to present injuries to vegetation in this vicinity of the same nature which the appellees claimed affected their crops, though it is admitted that there are now no harmful emanations from appellant’s works: Byers v. B. & O. R. R. Co., 222 Pa. 547.
    March 20, 1911:

      Henry M. Stevenson, with him Maxwell Stevenson, for appellees.
    It is not necessary to prove negligence, even though alleged, where a nuisance is proven: Stokes v. R. R. Co., 214 Pa. 415; Campbell v. Bessemer Coke Co., 23 Pa. Superior Ct. 374; Rogers v. Traction Co., 182 Pa. 473; Hauck v. Pipe Line Co., 153 Pa. 366; Farver v. Car & Foundry Co., 24 Pa. Superior Ct. 579; Green v. Sun Co., 32 Pa. Superior Ct. 521.
    The plaintiffs had the right to prove directly by others the fact that others were damaged by soot and smoke: Green v. Sun Co., 32 Pa. Superior Ct. 521; Penna. Lead Co.’s App., 96 Pa. 116.
    The proof of an offer of compromise cannot be made, but the conversation may be testified to whenever it will show or prove some substantive fact or an acknowledgment of liability: Rabinowitz v. Silverman, 223 Pa. 139; Bascom v. Stove & Mfg. Co., 182 Pa. 427; Arthur v. James, 28 Pa. 236.
   Opinion by

Mr. Justice Potter,

This action was brought by plaintiffs to recover damages for injuries to their growing crops of vegetables, alleged to have been caused by noxious products, smoke and soot, emitted from the oil refinery of the defendant company. Upon the trial, evidence was offered on the part of the defendant, tending to show that the loss of the crops was not due to injuries caused by products from the smokestack of the refinery, but was owing to lack of proper care, and to the ravages of insects, and to smoke from locomotives passing upon a railroad track near by. The issue of fact thus raised, as to the cause of the injuries, was determined by the jury in favor of plaintiffs. From the judgment entered upon the verdict, defendant has appealed.

The first and second assignments of error are to the refusal of the court below to enter judgment in favor of the defendant, non obstante veredicto, and to the refusal of defendant’s first point, asking for binding instructions in its favor. In support of these assignments, it is urged that there can be no recovery because there was no evidence of negligence on the part of the defendant company in the operation of its works. But in Robb v. Carnegie Bros. & Co., 145 Pa. 324, which is a leading case on the subject, we held that evidence of negligence is not necessary in order to establish a claim for damages in a suit of this kind. The defendants in that case had erected coke ovens on land adjoining plaintiff’s farm. Plaintiff alleged “that the smoke and gas from these ovens passed over his farm injuring thereby his crops, his soil and the comfort of his home.” In denying plaintiff’s right to recover, defendant contended that the injuries resulted “from the pursuit of a lawful calling, in a lawful manner, without either negligence or malice, on the part of the owner or his employees.” But this court held that where land is used for manufacturing purposes, the maxim sic utere tuo ut alienum non lsedas should apply. Counsel for appellant here cite Stewart v. De Noon, 220 Pa. 154, as sustaining their position; but in that case, the injury was not the result of the ordinary conduct of the business. The damages were caused by a fire originating in an explosion on defendant’s premises. So in Zahniser v. Torpedo Co., 190 Pa. 350, which is also cited, the action was by the owners of an oil property to recover damages from a contractor, for the injuries caused by a premature explosion. The only question considered was whether the doctrine of res ipsa loquitur would apply. Appellant also relies upon Harvey v. Coal Co., 201 Pa. 63, where the action was for injuries caused by the alleged negligent escape of coal dust from a breaker; but that is one of the exceptional cases referred to in Robb v. Carnegie Bros. & Co., 145 Pa. 324, where negligence must be shown. The distinction is pointed out by Henderson, J., in Campbell v. Coke Co., 23 Pa. Superior Ct. 374 (380). The case of Stokes v. Penna. R. R. Co., 214 Pa. 415, is a later authority-sustaining the right to recover here without showing negligence. It was there expressly held that an averment of negligence contained in plaintiff’s statement, as in the present case, did not impose on him the duty of showing negligence by his evidence at the trial. Mr. Justice Stewart said (p. 419): “True, the statement filed in this case averred that the acts complained of had been done negligently, but this did not. make negligence a material question; the action being for damages occasioned by maintenance of a nuisance, the question of negligence was not involved.”

The third and eighth assignments relate to the exclusion of evidence .that the defendant used the most effective and approved appliances. But the excluded evidence would be material only as to the question of negligence; and, as we have just pointed out, that is not important here.

The fourth and fifth assignments are to the refusal of points relating to the measure of damages. Appellant contended that loss of profits in being compelled to raise less productive crops, or decrease in rental value, should have been the measure. But no evidence was offered upon which to base any such a measure of damages. The trial judge allowed recovery for the value of the crops alleged to have been destroyed, and this was in accordance with the rule in Robb v. Carnegie Bros. & Co., 145 Pa. 324.

We see no merit in the sixth assignment of error, in which complaint is made that a witness was allowed to testify upon cross-examination, against objection, that he received complaints about the smokestack,' from other persons than plaintiffs. In his direct examination the witness had put plaintiffs in the position of chronic complainers, and it was competent to show on cross-examination that they were not the only objectors.

In the seventh assignment it is alleged that the trial judge erred in permitting a witness to testify against objection that the defendant had annual agreements with certain peoplé in the vicinity to reimburse them for damages done by the smoke from its works. This testimony was improper, we think. Such payments if made would naturally be in the nature of compromises, and as such could not properly be shown. Payment of claims of other people would not justify an inference of liability to these plaintiffs. This assignment is sustained.

In the ninth assignment it is alleged that the trial judge erred in refusing to admit testimony that the vegetation at the same place showed substantially the same kind of injury in subsequent seasons, when the works of defendant in question were not in operation. The offer of defendant was to prove that the witness on the previous day had collected salad or spinach, from a farm right in the neighborhood of plaintiffs’ place, and that it presented the same appearance as that which the plaintiffs contended was the result of the fumes from the stack, although the stack had been out of operation for two or three years. This offer bore directly upon the main question at issue, which was, whether the injury to the vegetables was due to the products cast forth by defendant’s smokestack, or was due to some other cause. If it could be shown that vegetables in the same place presented the same appearance of injury in succeeding years, when defendant’s works were not in operation, it was certainly material to the inquiry; and it was error to exclude evidence of that nature. Authority is hardly needed to substantiate this ruling, but the general principle is thus set forth in 17 Cyc. L. & Pr. 288, where it is said: “Persistent recurrence of a given result when one antecedent alone remains constant is highly probative that this antecedent is the cause of the result. In order to meet such evidence, or generally, it is entirely relevant to prove instances where the alleged cause was present and the result failed to follow; or where the same result followed when the alleged cause was not present; provided the other conditions are shown to be sufficiently similar to render the evidence relevant.”

Testimony tending to show that the vegetation showed the same sort of blight or injury as that of which complaint was here made, at a subsequent time, when it could not have been caused by the products of defendant’s stack, would fairly justify an inference that the injury for which recovery was here sought, was not caused by the operation of defendant’s works.

By reason of the errors set forth in the seventh and ninth assignments, the judgment is reversed, with a venire facias de novo.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Taussig, Appellant, v. United Security Life Insurance & Trust Company.

      Insurance — Life insurance — Insurable interest — Purchase of policy.

    1. The mere purchase of a life insurance policy on the life of another, does not in itself create an insurable interest in the purchaser in the life of the insured.
    2. Where a person who is not a creditor, and who has not otherwise any insurable interest in the life of another person, purchases a life insurance policy on the life of such other person, he will be entitled, after the death of the insured, to retain from the proceeds of the policy only such premiums, payments and expenditures as were made or incurred by him on account of the policy. The purchase of the policy in such a case is a wagering contract, unlawful and void.
    Argued Jan. 13, 1911.
    Appeal, No. 221, Jan. T., 1910, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1908, No. 5,165, discharging rule for judgment for want of a sufficient affidavit of defense in case of Lillian M. Taussig, administratrix c. t. a. of the estate of Robert Hodgson Ball, deceased, v. The United Security Life Insurance & Trust Company.
    Before Pell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Assumpsit for money had and received.
    Rule for judgment for want of a sufficient affidavit of defense.

      March 20, 1911:
    The opinion of the Supreme Court states the facts.

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

      E. Spencer Miller, with him William Trautwine, Jr., for appellant.
    There was no insurable interest possessed by defendant in the life of the insured and the estate is therefore entitled to hold the company for the insurance moneys unlawfully retained: Gilbert v. Moose, 104 Pa. 74; Stoner v. Line, 16 W. N. C. 187; Ruth v. Katterman, 112 Pa. 251; Stambaugh v. Blake, 22 W. N. C. 407; Brennan v. Franey, 142 Pa. 301; Riner v. Riner, 166 Pa. 617; Warnock v. Davis, 104 U. S. 775; New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591 (6 Sup. Ct. Repr. 877); Russell v. Grigsby, 168 Fed. Repr. 577.

      Henry LaBarre Jayne, of Biddle, Paul & Jayne, for appellee, cited: Wheeland v. Atwood, 192 Pa. 237.
   Opinion by

Mr. Justice Elkin,

This suit was brought to recover the amount realized by the defendant company from the proceeds of an insurance policy taken out upon the life of Robert Hodgson Ball, less such premiums, payments and expenditures as the appellee was required to make or incur in connection with the transaction. The appeal comes into this court from an order of the court below refusing to enter judgment for want of a sufficient affidavit of defense. The insured decedent on October 12, 1893, at the age of forty-one, took out the policy in question, and on September 23,1895, sold it to the appellee company. At the time the transaction was consummated, Ball, the insured, sold to the appellee company two items of property; one a vested interest held by him in remainder, on the death of his mother, in certain property settled in trust by his father; the other item being the policy of insurance upon his own life, the proceeds of which, or at least that part of the proceeds remaining after deducting premiums, payments and expenditures, are involved in this controversy. The policy of insurance called for the payment of $15,000 at the death of the insured. The present worth of the reversionary interest at the time of the completion of the transaction was estimated to be $7,000. The appellee company paid to Ball as the consideration for these two items of property $14,500. Ball died September 24, 1897, and the appellee company was paid the face value of the policy, $15,000. His mother died December 2, 1904, and by the decree of court the reversionary interest in the estate of his father amounting to $9,989.35 was awarded to appellee. At the time Ball sold these two items of property to appellee the relation of debtor and creditor did not exist between the parties. The policy had no accrued value at the time of its purchase. It was not assigned for the purpose of securing a creditor upon an existing indebtedness. It was an absolute sale of the policy to a company, not interested as a creditor or by ties of blood, in the life of the insured. The only interest the purchasing company had was that which grew out of the transaction itself. These facts clearly appear in the pleadings or are conceded in the argument of the case. The legal question to be determined upon this state of facts is, whether the appellee company had an insurable interest in the life of Ball so as to relieve the transaction from the ban of the rule- which holds wagering contracts on the life of another unlawful and invalid. The appellee relies on Wheeland v. Atwood, 192 Pa. 237, and the line of cases there followed, to sustain the contention that the transaction did not constitute a wagering and unlawful contract. That case held in substance that a creditor may lawfully take out a policy on the life of his debtor in an amount sufficient to cover the debt and the cost of such insurance with interest not only on the debt but upon the expenditures during the period of the expectancy of life of the insured according to the Carlisle tables. It also appeared in that case that the policy was on the life of a wife who assigned it to her husband and he in turn assigned it to a creditor in payment of an existing indebtedness. It was there held that the assignment of the policy by the debtor to his creditor in payment of an antecedent debt constituted a valid lawful contract and that the creditor was entitled to the whole amount of the policy. This is the settled rule of our cases and there does not appear to be any sufficient reason, of public policy or otherwise, for disturbing it. In the case at bar the attempt is made to extend the rule a step farther than any decided case in our own state has yet gone. In the present case there was an absolute purchase of the policy by a company which at the time of the transaction had no interest in the life of the insured. There was no antecedent debt to be paid or secured. The relation of debtor and creditor had not yet been established at the time the negotiations were pending, nor did it exist after the transaction had been completed. The insured sold to a purchasing company in no way connected with him so far as the record shows, two items of property, one of them an insurance policy on his own life, and received in payment therefor the definite amount of money agreed upon. When the transaction was completed the purchasing company owned the policy and the reversionary interest, and the insured had received the amount of money agreed to be paid him. It was an absolute unconditional purchase and sale. The purchasing company acquired title to the property sold and Ball got the money agreed upon as a consideration. He had no further obligations in the matter either as a debtor or as a party to the contract. In other words, neither before nor after the transaction was he a debtor to the appellee company. Under these circumstances the transaction in question cannot be sustained upon the ground that the appellee company was a creditor of Ball and had under the authority of our cases the right to purchase or take an assignment of the policy in payment of an existing indebtedness. Wheeland v. Atwood, 192 Pa. 237, and many other cases of like import are authority for the doctrine that a creditor has an insurable interest in the life of his debtor, but these cases are not authority for the proposition that a purchasing company, not a creditor and having no such relation, has an insurable interest in the life of one who simply offers to sell and does sell a policy upon his own life for a definite fixed sum. The foundation of the rule is the existence of the relation of creditor, and if this relation' does not exist, there is no foundation upon which to predicate the rule. The relation must exist at and before the time of the transaction, and cannot grow out of the transaction itself, nor out of the subsequent dealings between the parties. A creditor to have an insurable interest in the fife of his debtor within the meaning of the rule of our cases must show that at the time he took an assignment of the policy, there was a valid existing indebtedness, in which event the relation of debtor and creditor would clearly exist. In the case at bar no such relation was shown. The statement of claim in express terms avers that the appellee company had no insurable interest in the life of Ball, and while the affidavit of defense sets out the details of the transaction relied on to establish an insurable interest, it does not show any existing indebtedness at the time of the transaction, or indeed when it was completed. The facts relied on as a defense do not show that the relation of debtor and creditor ever existed between the parties to the transaction. The rule relied on has therefore no application. We are of opinion that the appellee did not have an insurable interest in the life of Ball and that the transaction whereby the policy in question was purchased constituted a wagering contract upon the life of another, within the meaning of that class of cases declaring such contracts to be unlawful as against public policy: Gilbert v. Moose, 104 Pa. 74; Ruth v. Katterman, 112 Pa. 251; Stambaugh v. Blake, 22 W. N. C. 407; Riner v. Riner, 166 Pa. 617. See also Warnock v. Davis, 104 U. S. 775; Gordon v. Ware National Bank, 132 Fed. Repr. 444.

The affidavit of defense sets up the bar of the statute of limitations, but counsel on both sides stated to the court that this defense was waived and would not be insisted upon. We have therefore treated the case as if no question as to the statute of limitations had been raised.

The order of the court below discharging the rule asking judgment for want of a sufficient affidavit of defense is reversed and the record is remitted for the purpose of ascertaining the balance due appellant out of the proceeds of the insurance policy, less such premiums, payments and expenditures as were made or incurred on account of the same, and when the balance due appellant has been liquidated, judgment to be entered thereon.


author: Per Curiam,

text:
    Webb v. Philadelphia, Appellant.

      Negligence — Municipality—Sidewalk—Unguarded area way.

    In an action against a city to recover damages for personal injuries, it appeared that the plaintiff fell into an open, unguarded area way in which there were steps leading to a door that opened into the basement of a dwelling house. This door was under the front steps that were six feet high and extended six feet three inches into the pavement. The area way extended from the house line three feet into the pavement and was three feet four inches in length. The pavement was sixteen feet in width, and the clear space between the foot of the steps and the curb was nine feet, nine inches. The street was in a thickly populated part of the city and was much frequented. The accident happened at night. The plaintiff, who had no knowledge of the open area way, and who had occasion to wait on the street, went to the side of the front steps of the house to secure protection from the wind and after standing there a short time, stepped further back and fell. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 13, 1911.
    Appeal, No. 212, Jan. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1907, No. 4,983, on verdict for plaintiff in case of Sarah D. Webb v. City of Philadelphia.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    March 20, 1911:
    Affirmed.
    Trespass to recover damages for personal injuries. Before Audenried, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,850. Defendant appealed.

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

      James Alcorn, city solicitor, with him Charles E. Bartlett, assistant city solicitor, for appellant,
    cited: King v. Thompson, 87 Pa. 365; Stackhouse v. Vendig, 166 Pa. 582; Martin v. Williamsport, 208 Pa. 590; Guinter v. Williamsport, 208 Pa. 587; Mason v. Phila., 205 Pa. 177; White v. Phila., 223 Pa. 563; Kelly v. Bennett, 132 Pa. 218; McIlhenney v. Phila., 214 Pa. 44; Tolan v. Phila., 35 Pa. Superior Ct. 311; Lerner v. Phila., 221 Pa. 294; Rothacker v. Phila., 42 Pa. Superior Ct. 408.

      J. Morris Yeakle, for appellee,
    cited: Gillard v. Chester, 212 Pa. 338; Beatty v. Gilmore, 16 Pa. 463; Simons v. Thompson, 2 W. N. C. 209; Fox v. Booth, 1 W. N. C. 177; McHugh v. Kerr, 208 Pa. 225; Feather v. Reading, 155 Pa. 187; Reading v. Reiner, 167 Pa. 41; Musick v. Latrobe Borough, 184 Pa. 375; McNerney v. Reading, 150 Pa. 611; Bacon v. Boston, 57 Mass. 174; Temperance Hall Assn. v. Giles, 33 N. J. L. 260.
   Per Curiam,

The plaintiff fell into an open, unguarded area way, in which there were steps leading to a door that opened into the basement of a dwelling house. This door was under the front steps that were six feet high and extended six feet three inches into the pavement. The area way extended from the house line three feet into the pavement and was three feet four inches in length. The pavement was sixteen feet in width, and the clear space between the foot of the steps and the curb was nine feet nine inches. The street was in a thickly populated part of the city and was much frequented. The accident happened at night. The plaintiff, who had no knowledge of the open area, and who had occasion to wait on the street, went to the side of the front steps of the house to secure protection from the wind and after standing there a short time, stepped further back and fell. The case was submitted to the jury with great care to determine whether the street was reasonably safe for the use of foot passengers who paid reasonable attention to where they were going. The only question to be considered is whether a verdict should have been directed for the city, because of the failure to prove negligence.

The case is a close one, differing somewhat from the class of cases in which we have held that the city is not negligent in permitting the maintenance of a narrow open space in a pavement, close to the house line, for the admission of light and air, of which King v. Thompson, 87 Pa. 365, is an example; on the other hand, it is scarcely «distinguishable in its facts from Feather v. Reading, 155 Pa. 187, in which the municipality was held liable, where the plaintiff was not making an ordinary use of the pavement, as a pedestrian, but fell into an open area way at the side of the steps on which she had been sitting. The members of the court who heard the argument are not agreed on the question of the city’s negligence, but the majority are of opinion that the judgment should be affirmed.

The judgment is affirmed.


text:
    Corey Coal Company v. New York & Cleveland Gas Coal Company, Appellant.

      Arbitration — Scope of the reference — Statement of claim.

    1. An award of arbitrators will not be set aside where the defendant complains that the arbitrators had gone beyond the scope of the reference, if it appears that every item which the arbitrators allowed to the plaintiffs was claimed by the plaintiffs in the statement of claim filed in the suit arbitrated.
    2. Where an arbitration of a pending cause is without exception or appeal, the award of the arbitrators can only be successfully attacked on the ground of fraud. If the arbitrators merely make a mistake, the injury is without remedy.
    Argued Jan. 16, 1911.
    Appeal, No. 39, Oct. T., 1910, by defendant, from order of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 155, discharging rule to strike off award and open judgment in case of Corey Coal Company v. The New York & Cleveland Gas Coal Company. Before
    Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Rule to strike off award of arbitrators.
    Kennedy, P. J., filed the following opinion:
    This suit was brought May 22, 1905, and on October 28, 1908, it was referred to arbitrators, the reference or submission being in the following words:
    “And now, to-wit, October 28th, 1908, referred by consent of attorneys in open court to F. W. Hughey, E. P. Douglas, and W. M. Lindsay,, to meet at the office of F. W. Hughey, Esq., room 620 Bakewell Building, Pittsburgh, Pa., on ten days’ notice to either party or their attorney, with full power in one or two attending to substitute in case of non-attendance, on whose report, or that of a majority, judgment may be entered by the Prothonotary, without exception or appeal, arbitrators’ fees to be borne by the parties in equal shares.”

      To that reference was appended the following agreement, signed by the attorneys for plaintiffs and defendant:
    “We agree that the following persons be chosen arbitrators, F. W. Hughey, E. P. Douglas, and W. M. Lindsay, and that the above order be made a rule of court, the arbitrators’ fees to be borne by the parties in equal shares.”
    The said suit or matter was then so proceeded with that the said arbitrators made their award, dated June 5, 1909, in the following words:
    “We, the arbitrators named in the annexed order, met at the time and place designated in the annexed notice, all the arbitrators named in the annexed order being present and all being duly sworn, and the parties being present, and having adjourned from time to time, and having heard the evidence and allegations of the parties and the arguments of their counsel, and having determined the matters in controversy submitted to us, do award to the plaintiffs the sum of twenty-five thousand and seven and fifty-two one-hundredths dollars ($25,007.52).
    “Witness our hands this fifth day of June, a. d. 1909.
    “F. W. Hughey,
    “W. M. Lindsay,
    “E. P. Douglas, “Arbitrators.”
    This award was filed June 7,1909, and on June 21,1909, the court made the following order:
    “And now, to-wit, June 21st, 1909, the within award presented in open court and approved and ordered to be entered of record and judgment entered thereon in favor of the plaintiffs and against the defendant for the amount named therein.”
    On June 24, 1909, the defendant filed in court a petition praying, for reasons therein given, that the said award be adjudged and determined entirely null and void and stricken from the record, on which petition the court made the following order:
    “And now, June 24, 1909, the within petition presented in open court, and on consideration thereof a rule is granted to show cause why the award should not be set aside, and in the meantime proceedings stayed, with leave to set aside order to stay.”
    On June 26, 1909, the defendant, it would seem, having found that judgment had been entered on said award, filed a supplemental petition, praying that the rule to show cause, granted June 24, 1909, should be amended and modified so that the said order of June 21, 1909, entering judgment on the award, should be opened and stricken from the record and the said judgment and said award set aside, on which supplemental petition the court made the following order:
    “And now June 26, 1909, the within petition presented in open court, and on consideration thereof a rule is granted on plaintiffs to show cause why the order of June 21, 1909, should not be set aside, the judgment entered and the award opened, and the judgment and rule set aside and. stricken from the record.”
    On these rules the matter came before this court for argument, and, upon the argument, the defendant contended: first, that the plaintiffs were allowed by the arbitrators for items of personal property that were not properly embraced in the suit or action because purchased before the agreement of June 1, 1896. The statement of claim, filed by the plaintiffs, contained all of the items of personal property for which the arbitrators allowed plaintiffs. It does not seem to be material when the articles were bought. The plaintiffs’ claim in their statement was for the articles enumerated in the statement belonging to the plaintiffs, and upon the premises and appropriated by the defendant. It is true that articles of personal property for which plaintiffs were allowed were purchased before the agreement of June 1, 1896, but the plaintiffs’ claim was for all articles enumerated in the, statement which belonged to the plaintiffs and were appropriated by the defendant. The contract relating to such articles provided that the defendant should reimburse the plaintiffs for moneys advanced therefor, but the plaintiffs, although claiming that they had advanced a sum of money greatly exceeding $23,000, waived their right to recover the amount of such moneys and sought only to recover the fair and reasonable value of said articles, which they claimed to be of the value of $22,299.23; but the arbitrators allowed them a very much smaller sum. They were allowed the sum for such articles because they were on the premises and taken possession of by the defendant June 1, 1900. We have no doubt that the items of personal property, allowed for by the arbitrators, were all in plaintiffs’ statement of claim, and properly embraced in this action.
    The defendant claimed, secondly, that the arbitrators allowed plaintiffs for permanent improvements, claimed to have been made under the contract of June 1, 1896, in disregard of the testimony to the effect that they were made prior to the contract, thus going beyond the submission. Under this claim the principal items complained of were: Entry or roof ripping, $371.50, and four pit mouths, $1,549.96. All of the four pit mouths are enumerated in the statement of claim. As to pit mouths Nos. 1 and 2, it seems that originally they were opened prior to the contract of June 1, 1896, but there was a question, under the testimony, whether the claim of the plaintiffs was for work done on the original openings, or for the improvement thereof after the contract of 1896. Under the disputed testimony, the arbitrators answered the question in favor of the plaintiffs, to which finding we can discover no error or objection. It was not contended that pit mouths Nos. 3 and 4 were opened prior to the contract of 1896. As to the entry or roof ripping, plaintiffs’ claim was for 600 yards, all of which plaintiffs claimed was done after the contract of 1896 at ninety-five cents per yard, amounting to $570. The arbitrators allowed the lump sum of $371.50 for the ripping, which, under the disputed testimony, the plaintiffs were entitled to be paid for. We do not think the award of the arbitrators should be disturbed for the allowance for permanent improvements. It must be remembered that this submission or reference , is without exception or appeal, and the award of the arbitrators can only be successfully attacked on the ground of fraud. If the arbitrators merely made mistakes, and nothing else is alleged here, the injury is remediless.
    March 20, 1911:
    Both of the above-stated rules should be discharged and the award of arbitrators, and the .judgment entered thereon, confirmed.

      Error assigned was the order of the court.

      Lyon & Hunter, for appellant.

      McKee, Mitchell & Alter, with them George Weil, for appellees.
   Per Curiam,

This appeal is dismissed on the opinion of the learned president judge of the court below in discharging the rules to show cause why the award of arbitrators should not be set aside and the judgment entered thereon stricken from the record.


text:
    Dempster v. Baxmyer, Appellant.

      Equity — Clean hands — Accounting.
    1. The rule that plaintiff must come into equity with clean hands is confined to misconduct in regard to the matter of litigation.
    2. The fact that the plaintiff in a bill in equity for an accounting agreed with the defendant to an improper use of a portion of the fund in the latter’s hands, will not bar him from his right to an accounting for the remaining portion of the fund.

      Equity — Jurisdiction—Intervention.
    3. One who discovers that money, belonging in equity to himself, is in the possession or control of parties who are litigating in equity in regard to that control, may be allowed to intervene in the suit and pursue his equitable rights against both of them; and the fact that the intervener may have a remedy at law, is immaterial, if it appears that his claim is founded on a trust ex maleficio.
    Argued Jan. 16, 1911.
    Appeal, No. 176, Oct. T., 1910, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1908, No. 200, on bill in equity in case of Alexander Dempster v. C. F. Baxmyer, trustee, and C. F. Baxmyer, individually, defendant in the original bill of complaint and one of the defendants in the cross bill, appellant, and the Pittsburg Railways Company, intervening defendant and plaintiff in the cross bill.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction and the enforcement of a trust. Before Miller, J., specially presiding.
    The bill, as amended, set forth a trust relation between the plaintiff and the defendant with respect to a fund in defendant’s possession as trustee, and with respect to the assignment of one-half of a lease of a tract of land standing in defendant’s name, praying for an enforcement of the alleged trust and an injunction restraining the defendant from disposing of the fund or its equivalent other than in accordance therewith.
    The answer averred that the trust had ended; that the plaintiff had no interest in the subject-matter complained of; that defendant was acting for himself individually; and that whatever trust seemed to exist was terminated by compliance with certain conditions.
    The case was tried and a decree was entered to the general effect that Baxmyer was a trustee for himself and others. Subsequently the Pittsburg Railways Company was permitted to intervene as a party defendant, and thereupon filed a cross bill praying for the recovery of $25,000 promised to its operating officers.
    ■ On the hearing on the bill and answer Miller, J., found the facts to be as follows:
    1. The plaintiff and defendant with three others formed a corporation known as the Bon Air Land Company for the purpose of dealing in certain real estate, and as such were the owners of fifty-six and one-half acres of land in West Liberty borough, near Pittsburg, which they had laid out in lots. Plaintiff was the largest stockholder and was president of the company. Defendant was the next largest stockholder, and was secretary, treasurer and sales agent for the corporation.
    2. For the purpose of better marketing these lots the same parties organized the Bon Air Street Railway Company, and obtained a charter therefor, the lines to extend through the plan of lots of the Bon Air Land Company, making connection with or near the Pittsburg Railways system.
    3. In the meanwhile the defendant, as the plaintiff’s agent, representing himself as well and the other similar stockholders in the land and railway companies, entered into negotiations, by introduction from the plaintiff with representatives of the Pittsburg & Castle Shannon Railroad, looking towards the acquisition by sale or lease of said railroad to the plaintiff and defendant or the Bon Air Railroad Company. In connection with these negotiations the defendant, representing himself and the other parties already indicated, entered into negotiations with the Pittsburg Railways Company, which finally ended in an agreement between the defendant as an individual and the Pittsburg Railways Company, dated July 13, 1905, whereby, inter alia, the latter company was to acquire a long term lease of the Pittsburg & Castle Shannon Railroad with an assignment of the capital stock of the Bon Air Railway Company and certain rights of way for which the Pittsburg Railways Company agreed to pay Baxmyer, the defendant, the sum of $30,000, for services and commissions in negotiating said lease with the Pittsburg & Castle Shannon Railroad Company. Said agreement also provided for the payment to the Bon Air Land Company of $7,500, for rights of way through its property; also to lease to Baxmyer for ninety-nine years a tract of land known as the "Picnic Grounds,” being part of the Pittsburg & Castle Shannon Railroad Company’s holdings; also that it would commence work and complete within four months after franchises and rights of way had been secured, certain electric railway connections, among others a double track electric railway from the Pittsburg & Castle Shannon Railroad through the property of the Bon Air Land Company, along Summit and Dewey streets.
    4. At the time the foregoing negotiations were in progress and when the foregoing agreement was executed litigation had commenced or was threatened by a minority stockholder of the Pittsburg & Castle Shannon Railroad Company against the validity of the foregoing lease to the Pittsburg Railways Company. As a result, the Pittsrburg Railways Company declined to pay over said sum of $30,000, without indemnity, whereupon a bond in that amount, executed by Baxmyer as principal and Dempster as surety, to the Pittsburg Railways Company, was delivered, conditioned upon the return to the railways company of said sum of $30,000, in case the litigation was adverse to the validity of the lease of the Pittsburg & Castle Shannon Railroad Company to the Pittsburg Railways Company.
    5. Shortly before the consummation of the lease and agreement of July 13, 1905, plaintiff executed and delivered to the defendant the following, being exhibit “C,” attached to the defendant’s amended answer:
    “Pittsburg, June 26th, 1905.
    “I do hereby authorize C. F. Baxmyer to sell and convey any interest I may have in the leasehold, or proposed leasehold and agreement, to lease the Pittsburg & Castle Shannon Railroad, in consideration of the promise of said Baxmyer to pay to me the sum of two thousand five hundred dollars ($2,500.00), this sum to be paid me when the proposed purchaser of said agreement or lease make final payment to him for same.
    “A. Dempster.
    “Witness: W. W. Dempster.”

      6. The $30,000, paid to Baxmyer after the delivery of said indemnity bond, was appropriated between himself and Dempster as follows: $2,000 of the first purchase money received by Baxmyer, and $5,000 equally divided between him and Dempster, the paper exhibit “C” being corroborative as to the amount received by the plaintiff; the remainder, $23,000, was deposited in the joint names of plaintiff and defendant in the Iron & Glass Dollar Savings Bank in the city of Pittsburg, with an agreement that the interest was to be equally divided between them. Under date of October 6, 1906, though not executed of that date, the plaintiff and defendant made a statement of what had been done, and entered into a new agreement of what should be done with the remainder, which is exhibit “A,” attached to plaintiff’s bill, as follows:
    “to whom it may concern:
    “Mr. A. Dempster and C. F. Baxmyer, being bounden by a bond given to the Pittsburg Railways Company for the sum of thirty thousand ($30,000) dollars on August 26th, 1906, conditioned on the return of the sum of thirty thousand ($30,000) dollars, paid on that date to C. F. Baxmyer for a certain leasehold, his services, etc., in case the Courts should set aside the said leasehold for certain causes.
    “Now to insure or guarantee said A. Dempster from any loss, as well as to pay him his portion in full in sale of said leasehold certain sums of moneys were distributed, and deposits in bank were made as follows, Mr. A. Dempster received his full portion of said sale or the sum of twenty-five hundred ($2,500) dollars in cash.
    “C. F. Baxmyer received the sum of four thousand five hundred ($4,500) dollars, and the balance, or the sum of twenty-three thousand ($23,000) dollars, was deposited in the Iron & Glass Dollar Savings Bank in the names of C. F. Baxmyer and A. Dempster, it being agreed to by said Dempster and Baxmyer to leave it there until the satisfaction or return of said bond, said deposit to draw interest at the rate of three (3%) per centum, the interest was to be divided equally between said Dempster and Baxmyer so long as said money was on deposit.
    “Now be it further understood on this date, October 8th, 1906, it is agreed to between said Dempster and Baxmyer to draw on said deposit in the Iron & Glass Dollar Savings Bank, and to use the moneys in making a loan or loans to the Mine La Motte Lead & Smelting Company of sums not to exceed nineteen thousand ($19,000) dollars, on a note or notes of said Company, payable to C. F. Baxmyer, Trustee, and made payable on demand, with bonds of the said Mine La Motte Lead & Smelting Company, of equal amount as collateral security for the payment of said notes and interest, said notes to bear interest at the rate of six (6%) per centum, payable quarterly.
    “Now the interest accumulated on said deposit in bank is to be equally divided at this time and the interest on the loans made to the Mine La Motte Lead & Smelting Company is to be equally divided between said Baxmyer and Dempster when received.
    “The sum of four thousand ($4,000) dollars in addition to the sum already named is to be held by C. F. Baxmyer, the liability for the return of said sum to be assumed by said Baxmyer.
    “In order to make it perfectly clear let it be known that upon the receipt by him of the last named sum of four thousand ($4,000) dollars, and the signing of this agreement that said C. F. Baxmyer is liable for the sum of eight thousand five hundred ($8,500) dollars, of said total sum of thirty thousand ($30,000) dollars.
    “Mr. A. Dempster is liable for the sum of twenty-five hundred ($2,500) dollars.
    “And C. F. Baxmyer and A. Dempster are jointly liable for the sum of nineteen thousand ($19,000) dollars, as presented by the notes and bonds as held by said C. F. Baxmyer as trustee.
    “Now be it understood and it is hereby agreed to by us for and in consideration of the above that when the Pittsburg Railways Company complete the Bon Air Street Railway and cars operated thereon, and the sum of seven thousand five hundred ($7,500) dollars is paid to the Bon Air Land Company for rights of way, and certain other leases are made and agreements are complied with to the satisfaction of said C. F. Baxmyer and upon his approval, then these loans are to be called, any deposits of said moneys to be drawn, and any sum over twenty-five hundred ($2,500) dollars, held by said C. F. Baxmyer is to be paid in by him and then and there the sum of twenty-five thousand ($25,000) dollars is to be paid to certain individuals as agreed upon by said C. F. Baxmyer, said sums to be paid by him and him only, or in case of his death by his administrators or executors, the names of the individuals who are to receive said sum is given in a document filed or held with the will of said Baxmyer as of this date.
    “This agreement to bind ourselves, our executors, administrators or assigns.
    “Witness our hands and seals this eighth day of October, a. d. 1906 (Oct. 8th, 1906).
    “(Signed) C. F. Baxmyer [Seal] “A. Dempster. [Seal]
    “Witness:
    “E. J. Walden.”
    7. The interest on said deposit while in said bank was divided equally between the plaintiff and the defendant, and the interest on said note of $19,000 was also divided equally between them until recently, when defendant refused to continue the division; the plaintiff directed the treasurer of the Mine La Motte Lead & Smelting Company, of which he is president, to default with payment of interest, which was followed shortly thereafter by the filing of this bill.
    8. The litigation concerning the validity of the lease made by the Pittsburg & Castle Shannon Railroad Company to the Pittsburg Railways Company, known as Kaufman v. Pittsburg & Castle Shannon R. R. Co., 217 Pa. 599, was affirmed April 22, 1907, and shortly thereafter said indemnity bond was returned canceled to the principal and his surety, being the parties to this bill.
    9. During the period between the making of the agreement with the Pittsburg Railways Company by Baxmyer and the institution of this suit, plaintiff demanded that the defendant should assign to him one-half interest in the picnic grounds heretofore referred to. The latter, although denying plaintiff’s right, finally agreed to do so if the plaintiff would pay one-half of all the expenses of procuring said Pittsburg & Castle Shannon lease, rights of way, costs of charter, etc. This the plaintiff has not done. He has recently procured assignments of any interests which the three other members of the Bon Air Land Company, as stockholders, might have or had in the lease from the Pittsburg & Castle Shannon Railroad Company.
    10. The Pittsburg Railways Company has not paid the $7,500 for rights of way through the Bon Air Land Company’s land, nor has it completed the Bon Air Street Railway through the lands of the Bon Air Land Company, nor is it operating cars on or through the same.
    11. In the negotiations carried on by Baxmyer with the Pittsburg & Castle Shannon Railroad Company, and with the Pittsburg Railways Company, finally terminating in the lease herein referred to, he was acting for himself and for the plaintiff and other stockholders in the Bon Air Land Company. It is admitted that he is acting for other parties whose names are not disclosed, in the ultimate division of that portion of this $30,000 fund which has not been received by himself and by the plaintiff.
    On the hearing on the cross bill the court found the following conclusions of law:
    1. The trust fund admittedly held by Dempster and Baxmyer was for the illegal purpose of carrying out a fraudulent agreement with one of the Pittsburg Railways Company’s officials. In view of their admissions and testimony, they receiving and holding this money for that purpose, it is immaterial that the official who they say was to receive the money denies the arrangement; it is binding upon them as between themselves and the railways company.
    2. Out of the fund so fraudulently held by them $10,000, part of the money so received for this illegal purpose, is the lawful money of the Pittsburg Railways Company, and the defendants, Dempster and Baxmyer, are trustees ex maleficio for said company in the sum so found to be unlawfully held by them for the purpose of carrying out the agreement admitted by them.
    3. The defendants in the cross bill, Baxmyer and Dempster, as trustees ex maleficio for the Pittsburg Railways Company, should pay to said company said sum of $10,000, with interest thereon from the date when the original amount was received from said company.
    4. Said defendants in the cross bill, Baxmyer and Dempster, should pay the costs.
    On exceptions Shafer, J., filed the following opinion:
    As to the conclusions of law, one of the principal contentions on the part of Baxmyer is, as pointed out in the exceptions, that as $10,000 of the money in question was obtained from the Pittsburg Railways Company by the fraud of its officers, participated in by himself and Dempster, the plaintiff does not come into equity with clean hands, and his bill must therefore be dismissed, and the cross bill with it. We are of opinion that this contention cannot be maintained for two reasons: (1) because according to Baxmyer’s account of the matter, and as found by the court, only $10,000 of the money received from the Pittsburg Railways Company was obtained by fraud, the remaining $15,000 of the original payment being, so far as appears, received for legitimate purposes. The fraud of the parties in regard to the $10,000 can furnish no reason why the plaintiff is not entitled to relief in regard to the balance of the money which was obtained for other purposes. The rule that a plaintiff must come into equity with clean hands is confined to misconduct in regard to the matter in litigation; and (2) for the reason that the original bill does not disclose the source of the moneys in dispute, nor does it attempt to collect the same or ask for any account of the same, but asks for an injunction restraining Baxmyer from calling a certain demand note made by a company in which the plaintiff is interested, contrary to his agreement, and the fraud does not appear until Baxmyer sets it up himself as a reason why he should not be interfered with in calling the note. Under these circumstances it would- appear that it is Baxmyer, rather than the plaintiff, who is endeavoring to come into equity contrary to the maxim he invokes.
    Both the plaintiff and defendant have excepted to the sustaining of the cross bill of the intervening defendant, the Pittsburg Railways Company, the plaintiff’s exceptions being principally to the finding of fact as to the manner of obtaining the $10,000, and the defendant’s exceptions being founded upon its claim that the original bill should be dismissed for the reasons above stated, and further that the cross bill is not germane to the subject-matter of the original bill, and in addition that the plaintiff in the cross bill has an adequate remedy at law. As to whether a cross bill is proper remedy for the Pitts-burg Railways Company, the question is whether one who discovers that money belonging in equity to himself is in the possession or control of parties who are litigating in equity in regard to that control, may be allowed to intervene in the suit and pursue his equitable rights against both of them, or on the other hand, is bound to bring an original bill against them. We are of opinion that the case is fairly within the rule that a court of equity, when it once obtains jurisdiction of a subject, which in this case is the rightful possession and control of a certain sum of money, not only may, but should, hear and determine all matters concerning it arising between all parties whose claims arise out of the same transaction. The fund in this case is a definite sum of money invested in a note of a certain company. The plaintiff in the cross bill would se.em to us to have a right, if he fears the solvency of the other parties, to ask that the fund and the note representing it should be impounded for his benefit, by an injunction restraining either of the parties from taking the money into their own possession. The plaintiff in the cross bill has not asked for this relief, but that the circumstances are such that it would appear to be entitled to it seems to us to indicate that it is entitled to intervene and maintain its rights in this proceeding, rather than to maintain an original bill. As to the contention that the plaintiff in the cross bill has an adequate remedy at law, we are of opinion that as its claim is founded on a trust ex maleficio it is entitled to relief in equity, whatever may be the present status of the legal remedy in such cases.
    While neither plaintiff nor defendant appear to have formally excepted to the decree recommended by the trial judge, we are of opinion that justice requires a modification of the decree restraining the defendant, Baxmyer, from calling for' payment of the note in question, so far as the $10,000 is concerned. The money which the Pitts-burg Railways Company should receive is part of that note, and justice to all the parties would seem to require payment out of it, rather than payment by either of the parties out of his own funds, except upon a loss of the fund itself by the nonpayment of the note.
    The exceptions are therefore dismissed, and it is directed that a decree be entered allowing the defendant, Baxmyer, to call for payment of such part of the note described in the bill as will equal $10,000, with interest from July 13, 1905, to be paid to the plaintiff, Dempster, and . the defendant, Baxmyer, and that the said Dempster and Baxmyer thereupon pay over the said sum to the Pitts-burg Railways Company and that if the said sum shall not be received from the makers of said note and paid over to the Pittsburg Railways Company within ninety days the said Dempster and Baxmyer shall thereupon pay the sum of $10,000, with interest from July 13, 1905, to the Pittsburg Railways Company, and that the said Baxmyer be enjoined from calling for payment of the balance of the note in question in the case, unless and until it shall be made to appear that the present investment is in jeopardy, defendant Baxmyer having leave to apply at any time for leave to call the same upon showing grounds therefor.
    March 20, 1911:

      Error assigned was the decree of the court.

      W. S. Dalzell, with him W. H. Lemon, for appellant.

      David A. Reed, of Reed, Smith, Shaw & Beal, for Pitts-burg Railways Company, appellee.

      Samuel S. Mehard, with him Francis S. Bennett, for Alexander Dempster, appellee.
   Per Curiam,

This appeal is dismissed and the decree affirmed, at appellant’s costs, on the opinion of Judge Shafer on the exceptions to findings of fact and conclusions of law upon bill and cross bill.


text:
    Weisfield, Appellant, v. Beale.

      Mines and mining — Coal lands — Easements—Right of transportation across surface — Practice, C. P. — Form of action — Trespass, Q. C. F.— Act of May 25, 1887, P. L. 271 — Bankruptcy—Provable claims.

    1. A party who purchases the surface of a tract of land subject to the right of the owner of the underlying coal to transport the coal across the surface of the land may reqover damages in an action of trespass against the owner of the coal for the transportation across the land of coal taken from a mine upon an adjoining tract of land.
    2. In such case the fact that the declaration was in trespass quare clausum fregit will not prevent a recovery, inasmuch as the distinction between trespass quare clausum fregit, in which actual or constructive possession in the plaintiff was necessary, and trespass on the case in which it was not necessary is not of importance, as regards form of procedure, since the Act of May 25,1887, sec. 3, P. L. 271.

      Bankruptcy — Provable claim — Unliquidated claims in tort — Discharge —United States bankruptcy act of 1891, sec. 68b — United States act of February 5,1908.

      3. A claim for unliquidated damages resulting from injury to the property of another, not reduced to judgment and unaccompanied and unconnected with any contractual or quasi contractual liability, is not provable in bankruptcy under clause b of sec.- 63 of the United States bankruptcy law of July 1,1898.
    4. Section 63 of the United States bankruptcy law of 1898 was not enlarged by the act of congress of February 5, 1903 (32 U. S. Stat. at Large, 797), amending sec. 17, which relates to debts not affected by a discharge. ■
    Argued Jan. 16, 1911.
    Appeal, No. 19, Oct. T., 1911, by plaintiff, from judgment of Superior Court, April T., 1910, No. 133, reversing judgment of C. P. Armstrong Co., Sept. T., 1908, No. 168, and entering judgment non obstante veredicto for defendant in case of C. A. Weisfield v. Joseph G. Beale.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Appeal from Superior Court. See 44 Pa. Superior Ct. 386.
    Trespass in the common pleas to recover damages for unlawful transportation of coal over surface of land. Before Patton, P. J.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1.00. On appeal the Superior Court entered judgment for defendant non obstante veredicto.

      Error assigned was judgment of Superior Court.

      Harry C. Golden, for appellant.
    The plaintiff was entitled to recover under the pleadings: Duffield v. Rosenzweig, 144 Pa. 520; Miller v. Lehigh County, 181 Pa. 622; Webber v. Vogel, 159 Pa. 235; McCloskey v. Miller, 72 Pa. 151; Allwein v. Brown, 29 Pa. Superior Ct. 331.
    March 20, 1911:
    An unliquidated claim in tort is not provable in bankruptcy or discharged by a discharge in bankruptcy: In re Hirschman, 4 Am. Bankcy. Reps. 715; Dunbar v. Dunbar, 10 Am. Bankcy. Reps. 139; 190 U. S. 340; Matter of John Wigmore & Sons Co., 10 Am. Bankcy. Reps. 661; Matter of United Button Co., 15 Am. Bankcy. Reps. 390; Brown & Adams v. Button Co., 17 Am. Bankcy. Reps. 565; In re Crescent Lumber Co., 19 Am. Bankcy. Reps. 112; Matter of New York Tunnel Co., 159 Fed. Repr. 688; 20 Am. Bankcy. Reps. 25.

      H. B. Wassell, with him C. E. Harrington, for appellee.
   Opinion by

Mr. Justice Potter,

The plaintiff in this case purchased the surface of the Donley tract of land, subject to the right of the defendant, the owner of the coal under the tract, to have, as expressed in the deed, “free ingress and free egress over and through the land of the first party, so as to allow the said party of the second part, his heirs and assigns, to take out and carry off the said coal or coals as he or they may consider necessary, with the right and privilege to use the entries for any purpose, and to erect, make and keep in repair such roads, scaffolds and other fixtures as he or they may desire to erect, repair or remove from time to time.” In the exercise of these rights, defendant constructed a tramway over the surface of the land, some fifteen or sixteen rods in length, and used it for the transport of coal from the Donley tract, which was clearly within his rights; but in addition thereto he transported coal from a mine upon an adjoining tract of land known as the Denny mine, which was also operated by him. Claiming that the defendant had no right or authority to use the tramway over the surface of his land to transport coal from the Denny mine, this action was brought by plaintiff to recover for the increased burden thereby imposed upon the servitude.

In the present case the plaintiff’s statement is not printed in the record. But in the opinion of the Superior Court, the declaration is said to be in trespass quare clausum fregit. Under the Act of May 25, 1887, sec. 3, P. L. 271, all actions ex delicto, whether trespass, trover, or trespass on the case, are now brought under the one name of trespass. The distinction, therefore, between trespass quare clausum fregit, in which actual or constructive possession in the plaintiff was necessary, and trespass on the case, in which it was not, is no longer of importance. In Duffield v. Rosenzweig, 144 Pa. 520, a case in which plaintiff was not in actual possession of the land, Mr. Justice Clark said (p. 537): “We are of opinion that perhaps an action of trespass, technically so called, could not have been maintained; but, by the Act of May 25, 1887, P. L. 271, the distinctions theretofore existing between actions of trespass, trespass on the case, and trover, so far as they relate to procedure, were abolished, and, although the plaintiff’s statement sets forth his claim as in trespass, we cannot, in view of the provisions of the statute, distinguish, in the form of procedure, one from the other. If the facts establish his right to recover in either form, therefore, he is entitled to judgment.” This ruling was quoted with approval in Miller v. Lehigh County, 181 Pa. 622, where Mr. Justice Green further said (p. 626): “It is true in the present case the action is in trespass, but the injury is consequential, and therefore at common law the remedy should have been in case. But the act of 1887 was intended to, and did, effect a radical change in the common law upon this subject, and as held in the above-cited case, a recovery may be had in the action of trespass although the injury sustained was formerly remediable only in' case.”

As has already been stated, the defendant here is charged with making a wrongful and unauthorized use of the plaintiff’s land by hauling over its surface coal from a tract other than the dominant tenement, to which in that particular the surface was the servient tenement. If he was guilty of thus increasing the burden of the servitude on the surface, it was a trespass for which an action for damages would lie. His right of possession was a limited one, extending only to the right to transport across the surface the Donley coal. In the opinion of the Superior Court, the case of Collins v. Beatty, 148 Pa. 65, is cited to show that trespass quare clausum fregit cannot be maintained if the defendant was in possession of the locus in quo when the alleged trespass was committed. In that case the defendant was in actual and complete possession of a lot of ground, claiming to own the fee. Naturally one can hardly be consistently charged with trespassing upon property which is at the time in his own possession, and to which he claims complete and exclusive ownership. But where, as in the present case, the defendant has no claim whatever to the fee of the property, but has merely an easement over the surface, limited to the right to transport coal from a specified tract, over that surface; when, in such case, he goes beyond his rights and burdens the easement with an additional use, to which he has no claim, his action in so doing constitutes a trespass, for which he is answerable. Defendant’s right of occupancy for one purpose does not justify him in using the privilege to accomplish another end. See Truby v. Natural Gas Co., 38 Pa. Superior Ct. 166, and cases there cited. It does not appear that the effect of the act of 1887 was considered in Collins v. Beatty, 148 Pa. 65; but at any rate we are clear that the principle there announced should not be so applied to the facts of this case as to prevent a recovery against this defendant; and we are of opinion that the conclusion that this action could not be maintained by reason of the form in which it was brought was erroneous. When the defendant bought the coal in the Donley tract, he took a fee simple estate in the coal, and so long as that estate existed, he could haul through the gangways coal from other land. In so doing, he was using his own property. But as to the use of the surface of the land for transporting coal from another tract, there was no such right. His use of the surface was confined, under his contract of purchase of the coal, to the hauling of that coal from the Donley tract. This is in accordance with the doctrine laid down in Webber v. Vogel, 189 Pa. 156.

With regard to the effect upon this claim of the discharge of the defendant in bankruptcy, we think the view taken by the court of common pleas is sustained by the weight of authority in the federal courts. This action is founded upon a tort which can only be redressed by an action ex delicto. The claim was of course unliquidated. Counsel for defendant maintain that it falls within clause b of sec. 63 of the United States bankrupt law of July 1, 1898, which provides that, “b, Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against his estate.” This clause was construed by the supreme court of the United States, in Dunbar v. Dunbar, 190 U. S. 340. Mr. Justice Peckham there said (p. 350): “In section 636 provision is made for unliquidated claims against the bankrupt, which may be liquidated upon application to the court in such manner as it shall direct, and may thereafter be proved and allowed against his estate. This paragraph 6, however, adds nothing to the class of debts which might be proved under paragraph a of the same section. Its purpose is to permit an unliquidated claim, coming within the provisions of section 63a, to be liquidated as the court should direct. We do not think that by the use of the language in section 63a it was intended to permit proof of contingent debts or liabilities or demands the valuation or estimation of which it was substantially impossible to prove.”

In Collier on Bankruptcy (7th ed., 1909), 718, it is said: “A claim for unliquidated damages, resulting from injury to the property of another, not connected with or growing out of any contractural relation, is not a provable debt in bankruptcy.” In support of this proposition, the author cites Brown v. Button Co. (U. S. C. App., 3d Circ.), 149 Fed. Repr. 48; 17 Am. Bankcy. Reps. 565. In the opinion of the court, by Archbadd, Dist. J., it is there said (p. 53): “The first of the two paragraphs into which it (sec. 63) is divided is given up to an enumeration of the debts which are entitled to be proved against the estate, among which is to be found everything in the way of a fixed obligation, or which, as being of a commercial character, a bankrupt could expect to be relieved from; and, complete in itself, it is not be to added to. The other paragraph plainly has to do with a mere matter of procedure; how unliquidated claims founded upon open account or contract, specified in the preceding paragraph, may be liquidated or settled. Nor can it properly be made to serve any other purpose. Argument may amplify this, but cannot make it clearer. And as so interpreted a claim for damages, such as the one before us, is not included among debts which are made provable.” It was further held that the effect of sec. 63 was not enlarged by the act of congress of February 5, 1903 (32 U. S. Stat. at Large, 797), amending sec. 17, which relates to debts not affected by a discharge. That section still continues to limit the effect of the discharge to the bankrupt’s “provable debts.”

In the opinion by Bradford, Dist. J., in In re United Button Co. (U. S. D. Ct., Dist. Del.), 140 Fed. Repr. 495; 15 Am. Bankcy. Reps. 390, which was affirmed in Brown v. Button Co., 149 Fed. Repr. 48, the effect of sec. 17 as amended is considered. It is there said (p. 501): “While it was the intention of congress in enacting sec. 17 to determine and declare the effect of a discharge in bankruptcy upon demands against the bankrupt provable against his estate, it reasonably may be assumed, in the absence of persuasive evidence to the contrary, that congress did not intend in and by that section to render so provable demands not possessing that nature or quality under other provisions of the act.” Judge Bradford concludes (p. 507): “I know of no principle or authority which would justify the court in holding provable a claim for unliquidated damages resulting from injury to the property of another, not reduced to judgment and unaccompanied and unconnected with any contractual or quasi-contractual liability. The alleged claim of the petitioners is of this description, and, not being of a provable nature, is not susceptible of liquidation under section 636.” See also Matter of New York Tunnel Co., 20 Am. Bankcy. Reps. 25. Under these authorities a claim for unliquidated damages founded upon tort is not provable in bankruptcy. The claim of plaintiff in the present case is of that nature, being for damages for a trespass; and is not founded upon a contract express or implied. It was therefore not provable in the bankruptcy proceedings.

The specifications of error are sustained. The judgment of the Superior Court is reversed, and the judgment of the court of common pleas of Armstrong county is reinstated and affirmed.


text:
    Commonwealth v. Patsone, Appellant.

      Constitutional law — Equal protection of laws — Due process of law— Fourteenth amendment of federal constitution — Ownership of shotgun or rifle — Unnaturalized foreign-born resident — Act of May 8, 1909, P. L. 466.

    1. The Act of May 8,1909, P. L. 466, entitled “An act to give additional protection to wild birds and animals and game, within the commonwealth of Pennsylvania; prohibiting the hunting for, or capture or killing of such wild birds or animals or game by unnaturalized foreign-born residents, forbidding the ownership or possession of shotgun or rifle by any unnaturalized foreign-born resident, within the commonwealth, and prescribing penalties for violation of its provisions,” does not violate the fourteenth amendment of the federal constitution, and is a proper and constitutional exercise of the police powers of the state.
    2. The Act of May 8, 1909, P. L. 466, is not in contravention of the existing treaty between the kingdom of Italy and the United States.
    Argued Jan. 16, 1911.
    Appeal, No. 20, Oct. T., 1911, by defendant, from judgment of Superior Court, April T., 1910, No. 162, affirming judgment of Q. S. Allegheny Co., Oct. T., 1909, No. 27, affirming a summary conviction in case of Commonwealth v. Joseph Patsone.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Indictment of an unnaturalized foreign-born resident for having in his possession a double-barrel shotgun.
    The facts of the case appear in the opinion of Or-lad y, J., as follows:
    The defendant, an unnaturalized foreign-born resident of this commonwealth, was adjudged guilty of violating the provisions of the Act of May 8, 1909, P. L. 466, — in owning and having in his possession a double-barreled shotgun. The facts are not in dispute, and it is conceded that the proceedings in the summary conviction before the justice of the peace, and on appeal in the court of quarter sessions, were regular. The principal contention is, that the provisions of this act are in violation of the stipulations of the fourteenth amendment of the federal constitution, viz.: “Nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
    The act in question is entitled: “An act to give additional protection to wild birds and animals and game, within the commonwealth of Pennsylvania; prohibiting the hunting for, or capture or killing of such wild birds or animals or game by unnaturalized foreign-born residents; forbidding the ownership or possession of shotgun or rifle by any unnaturalized foreign-born resident, within the commonwealth, and prescribing penalties for violation of its provisions.” The first section provides: “It shall be unlawful for any unnaturalized foreign-born resident to hunt for'or capture or kill, in this commonwealth, any wild bird or animal, either game or otherwise of any description, excepting in defense of person or property; and to that end, it shall be unlawful for any unnaturalized foreign-born resident within this Commonwealth to either own or be possessed of a shotgun or rifle of any make. Each and every person violating any provision of this section shall upon conviction thereof, be sentenced to pay a penalty of twenty-five dollars for each offense, or undergo imprisonment in the common jail of the county for the period of one day for each dollar of penalty imposed: Provided, that in addition to the above-named penalty, all guns of the before-mentioned kinds found in the possession or under control of an unnaturalized foreign-born resident shall, upon conviction of such person, or upon his signing a declaration of guilt as prescribed by this act, be declared forfeited to the Commonwealth of Pennsylvania, and shall be sold by the Board of Game Commissioners as hereinafter directed.” The third section provides: “That the possession of a shotgun or rifle at any place outside of-buildings within this Commonwealth, by an unnaturalized foreign-born resident, shall be conclusive proof of a violation of the provisions of section one of this act, and shall render any person convicted thereof liable to the penalty as fixed by said section.” And the fourth section: “That the presence of a shotgun or rifle in a room or house, or building or tent, or camp of any description, within this Commonwealth, occupied or controlled by an unnaturalized foreign-born resident, shall be prima facie evidence that such gun is owned or controlled by the person occupying or controlling the property in which such gun is found, and shall render such person liable to the penalty imposed by section one of this act.”
    As stated by the learned trial judge: “The right to hunt game is but a privilege given by the Legislature, and is not an inherent right in the residents of the State. Wild animals and game of all sorts have from time immemorial been the property of the sovereign, and in Pennsylvania the property of the State. Its power to regulate and prohibit the hunting and killing of game has always been conceded.” This subject has been a fruitful source of legislation, and the frequent changes in our game and fish laws represent a zealous intention to define and supervise wild birds, animals, game and fish; to regulate how they are to be preserved and taken, declare the open and closed season when they may be taken; the manner and amount of the killing; and the device, implement and method permitted: Com. v. Immel, 33 Pa. Superior Ct. 388; Com. v. McComb, 39 Pa. Superior Ct. 411.
    In Lawton v. Steele, 152 U. S. 133, the supreme court of the United States declared: “The preservation of game and fish, has always been treated as within the proper domain of the police power, and laws limiting the season within which birds and wild animals may be killed and exposed for sale, and prescribing the time and manner in which fish may be caught, have been repeatedly upheld by the courts .... it is within the authority of the Legislature to impose restrictions and limitations upon the time and manner of taking fish and game, considered valuable as articles of food or merchandise. The power to enact such laws has long been exercised, and so beneficially for the public that it ought not now to be called into question.” Even as between states, restrictions may be placed upon nonresidents, which differ from those imposed on residents, in regard to license charges and other regulations: Allen v. Wyckoff, 48 N. J. L. 90; Geer v. Connecticut, 161 U. S. 519; James v. Wood, 8 L. R. A. 448, and note.
    The authority of the legislature being conceded, and the purpose being so meritorious, then every lawful provision deemed necessary to effect the purpose is within the legislative power. Due process of law is observed in the destruction of fish nets (Lawton v. Steele, 152 U. S. 133), in the forfeiture of vessels even though engaged for the coasting trade under the act of congress (Smith v. Maryland, 59 U. S. 71), and in the summary abatement of nuisances and destruction of property. Cards, dice and other articles used for gambling purposes are perfectly harmless in themselves, but may fall under the ban of the law and may be summarily destroyed. Many instances of the use of the police power are to be found (the segregation of bawds, and prohibiting the use of public sidewalks by public prostitutes, L’Hote v. New Orleans, 177 U. S. 587), the use of certain sections of a city for the manufacture of fertilizers (Fertilizing Co. v. Hyde Park, 97 JJ. S. 659), and other like instances have been held to be clearly within the police power: Pittsburg’s Petition, 32 Pa. Superior Ct. 210; 4 Thomp. Corps. 5488.
    As stated in Barbier v. Connolly, 113 U. S. 27, “Neither the amendment (XIY) broad and comprehensive as it is,— nor any other amendment was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people.” We are within the provisions of the constitution when we regulate the manufacture and sale of food stuffs, Com. v. McCann, 14 Pa. Superior Ct. 221; the number of hours adult females should labor, Com. v. Beatty, 15 Pa. Superior Ct. 5; and in prohibiting women and children from working in coal mines, Act of May 15, 1893, P. L. 52; in prescribing the qualifications for physicians and undertakers, Com. v. Hanley, 15 Pa. Superior Ct. 271; when musical bands may play in the public streets, Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355; when we authorize the killing of dogs following the' track of protected game, Com. v. Frederick, 27 Pa. Superior Ct. 228; and in denying the right to aliens to obtain licenses to sell intoxicating liquors: Trageser v. Gray, 73 Md. 250, 9 L. R. A. 780.
    The creation of the board of game commissioners of the state, whose duty it is to protect and preserve the game, song and insectivorous birds and mammals (Act of June 25, 1895, P. L. 273), and the department of fisheries having charge of the protection, propagation and distribution of fish (Act of April 2, 1903, P. L. 128), are but legislative conclusions that have been reached after more than a century’s experience on this subject, and it was deemed necessary and important to add the provisions of the act of 1909 in order to carry out more effectually the provisions of the earlier enactments.
    This legislation is not directed against any particular nationality or special class of aliens, but prohibits “any unnaturalized foreign-born resident” from hunting, capturing or killing any wild bird or animal, and “to that end it shall be unlawful” for such person “to have or be possessed of a shotgun or rifle of any make.” The Act of May 5, 1864, P. L. 823, prohibiting the carrying of concealed weapons is not obnoxious to the bill of rights, saving the rights of citizens to bear arms in defense of themselves and the state: Wright v. Com., 77 Pa. 470. Nor does the provision in the fourteenth amendment which declares, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” affect this defendant in any way, as he is not a citizen.
    An alien while domiciled with us is entitled to the protection of the laws and owes in return for this protection a temporary and local allegiance which continues during the period of his residence: 2 Am. & Eng. Ency. of Law (2d ed.), 64. We legislate primarily for our own citizens in granting the special privileges that are independent of our inherent rights. The alien is prohibited from doing many things to which a native-born or a naturalized citizen is entitled. He cannot exercise any political rights whatever, nor be compelled to fill any elective or appointive office; he is not qualified to serve as a juror; or to receive a license to sell liquor, hawk or peddle. A nonresident debtor is not entitled to the benefit of our $300 exemption law. Each state has its own exemption laws for the benefit of its own citizens: Collom’s App., 12 W. N. C. 309; Chemung Canal Bank v. Lowery, 93 U. S. 72; Deni v. Penna. R. R. Co., 181 Pa. 525. The privilege to hunt game has been limited to our citizens, and, as was said in Presser v. Illinois, 116 U. S. 252: “If the plaintiff in error has any such privilege he must be able to point to the provision of the Constitution or Statutes of the United States by which it is conferred. For as was said by this court in United States v. Cruikshank, 92 U. S. 542, the Government of the United States, although it is within the scope of its powers supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or so secured are left to the exclusive protection of the State.”
    A state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, when the jurisdiction is not surrendered or restrained by the constitution of the United States; by virtue of this it is not only the right but the bounden duty of the state to advance the safety, happiness and prosperity of its people, and to provide for its general welfare by any and every act of legislation which it may deem conducive to these ends: New York v. Miln, 36 U. S. 102. The act of 1909 defines two, several and independent offenses: first, the hunting of game by an alien; second, for an alien to either own or be possessed of a shotgun or rifle of any make. The primary subject of the act is the preservation of wild birds, animals and game, and under all our authorities, the privilege of hunting and taking game is limited, under defined restrictions, to our own citizens. Since long-range firearms, — shotguns and rifles, — are generally used in killing wild birds and animals, it is clear that the legislature, in prohibiting a foreign-born, unnaturalized resident from hunting game, intended to make the hunting of game by an alien the more difficult by taking away from such persons the means by which game is usually killed. This prohibition against having deadly and long-range firearms does not in any way deprive the alien of property without due process of law, but simply defines and limits his right to use firearms, by restricting such right to the use of short-range firearms, — revolvers, and pistols, and such other weapons, as may be necessary for defense of his person and property. “Whatever one may claim as a right under the Constitution and laws of the United States by virtue of his citizenship, is a privilege of a citizen of the United States. Whatever the Constitution and laws of the United States entitle him to exemption from, he may claim as an exemption in respect to, and such a right or privilege is abridged whenever the state law interferes with any legitimate operation of Federal authority which concerns his interest, whether it be an authority actively exerted, or resting only in the express or implied command or assurance of the Federal Constitution or law. But the United States can neither grant nor secure to its citizens rights or privileges which are not expressly or by reasonable implication placed under its jurisdiction, and all not so placed are left to the exclusive protection of the States:” Cooley’s Principles of Constitutional Law, 246-247. See also Bryce’s American Commonwealth, 406.
    This defendant is not a citizen of the United States nor of this commonwealth. While he is within our jurisdiction he is entitled to the equal protection of the laws, subject to the limitations of the class of which he is a member. He is one of a very large class of aliens, whose sojourn in the country is but temporary and whose place of abode is capricious and uncertain, who cannot speak our language nor understand our customs or laws, who pay no taxes and share no part of the public burden. Under all our decisions his right to remain among us is subject to the limitations imposed upon all of his class: Trageser v. Gray, 73 Md. 250; 1 Bouvier’s Law Diet., title Alien; 2 Am. & Eng. Ency. of Law (2d ed.), 64. “Equal protection of the laws” cannot be said to be denied whenever the law operates alike upon all persons and property similarly situated: Barbier v. Connolly, 113 U. S. 27; Walston v. Nevin, 128 U. S. 578. And in determining what is due process of law we are bound to consider the nature of the property, the necessity for its sacrifice, and the extent to which it has heretofore been regarded as within the police power. ... So far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction: Sentell v. R. R. Co., 166 U. S. 698; Com. v. McComb, 39 Pa. Superior Ct. 411; In re Campbell’s Registration, 197 Pa. 581.
    This act of 1909 is not in contravention of the existing treaty between the kingdom of Italy and the United States. The rule of construction to be followed in such a case has but recently been considered by our Supreme Court in Deni v. Penna. R. R. Co., 181 Pa. 525, and Maiorano v. B. & O. R. R. Co., 216 Pa. 402. By art. II of the treaty between these countries, “the citizen of each of the high contracting parties have liberty to travel in the States and Territories of the other, to carry on trade, wholesale and retail, to hire and occupy houses and warehouses, to employ agents of their choice and generally to do anything incident to or necessary for trade upon the same terms as natives of the country, submitting themselves to the laws then established.” And art. Ill provides: “The citizens of each of the high contracting parties shall receive, in the States and Territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives on their submitting themselves to the conditions imposed upon the natives.” As held in the last-cited case, “In construing a treaty the general rule obtains that the court is to be guided by the intention of the parties, and if the words clearly express the meaning and intention no other means of interpretation can be employed.” Is it a reasonable construction to hold that it was intended to clothe unnaturalized foreign-born residents with the same rights, immunities and advantages as are conferred solely as a privilege on citizens? The whole trend of our decisions is against such an interpretation. The terms of the treaty provide for the protection and security of their. persons and property, and in this respect, — to such protection and security, — the enjoyment of the same rights and privileges as are or shall be granted to the natives on their submitting themselves to the conditions imposed on the natives.
    March 20, 1911:
    An unnaturalized foreign-born resident cannot comply with the conditions imposed on a native-born or naturalized resident. Article XIV of the federal constitution defines this condition: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States, and of the States wherein they reside.” It would be a perversion of language to hold that the phrase, — the same rights and privileges as are or shall be granted to the natives, — was intended to or could embrace all the regulations affecting our franchise rights; the administration and execution of our laws; the special rights granted as privileges by our government to particular classes of our citizens. Such a construction would render nugatory the qualification for president of the United States as provided by art. II, sec. 1, par. 5, of our federal constitution and other limitations that are made equally explicit in our fundamental law.
    The assignments of error are overruled and the judgment is affirmed.

      Error assigned was judgment of Superior Court.

      .Marcel Viti, for appellant.

      W. H. Lemon, with him W. K. Shiras, for appellee.

       (Note. — In Superior Court name is spelled Papsone. See 44 Pa. Superior Ct. 129.)

   Per Curiam,

The judgment of the Superior Court is affirmed on the opinion of Judge Orlady.