author: Mr. Justice Stewart,

text:
    Wayne v. Pennsylvania Railroad Company, Appellant.

      Railroads — Condemnation of land — Damages—Delay in paying damages — Compensation for delay — Interest.
    1. When a railroad company in the exercise of its right of eminent domain enters upon land and definitely locates its line of road thereon, it becomes immediately liable to pay damages to the owner, and if it delays in making payment of the damages, and the delay is not caused by any act of the landowner in standing out for an exorbitant sum, the company is liable for the loss of the use of the money to the owner. The burden is upon the railroad company to show facts that will excuse its delay, and if it fails to do so it cannot complain if a jury awards to the owner damages for the delay which may equal the interest on the money.

      2. In estimating the damages for a delay the jury cannot make any deduction because the railroad did not immediately enter upon the land, and the owner was consequently relieved for the time from an unsightly embankment, and the noise, dirt and smoke which would have resulted from the building and operation of the road.
    Argued Feb. 7, 1911.
    Appeal, No. 227, Jan. T., 1910, by defendant, from judgment of C. P. Chester Co., April T., 1909, No. 73, on verdict for plaintiff in case of William Wayne v. Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass quare clausum fregit on appeal by plaintiff from the award of a jury of view. Before Hemphill, P. J.
    The case turned upon the instruction of the court as to amount of damages the plaintiff was entitled to for the delay of the railroad in settling with him for his land.
    Verdict and judgment for plaintiff for $75,125. Defendant appealed.

      Errors assigned were (1, 2) the portions of the charge quoted in the opinion of the Supreme Court.

      A. M. Holding and William I. Schaffer, for appellant.—
    The elements of damage, in addition to the land taken, were the inconvenience in appellee’s farming operations, resulting from the manner of the cutting of his fields, the unsightly appearance of the embankment, the cutting off of his view, and the smoke, noise and dirt from the operation of the road.
    Nothing whatever was done to disturb the possession of the appellee, or to subject him to annoyance, from the time of the location of the road in April, 1905, to the date of the trial in May, 1910. He was still in possession, use, and enjoyment of the land, he had no inconvenience in his farming operations, he still enjoyed the view that he had, without the interference of the embankment, and he was not subjected to any noise, dirt or smoke.
    May 1, 1911:
    It was therefore a fair question for the jury, whether appellee was damaged at all by reason of the detention of the moneys, which, technically, became due him in 1905: Reading & Pottsville R. R. Co. v. Balthaser, 126 Pa. 1; Richards v. Gas. Co., 130 Pa. 37; Klages v. Phila. & Reading Terminal Co., 160 Pa. 386; Becker v. R. R. Co., 177 Pa. 252; Provident Life & Trust Co. v. Phila., 202 Pa. 78; Mengell v. Water Co., 224 Pa. 120.
    All the cases in this state unite in the rule, that in considering such damages the jury should consider “all the circumstances” and decide in view of all the circumstances: Reading & Pottsville R. R. Co. v. Balthaser, 126 Pa. 1; Mengell v. Water Co., 224 Pa. 120; Taylor v. Paul, 6 Pa. Superior Ct. 496; Klages v. Phila. & Reading Terminal Co., 160 Pa. 386; Becker v. R. R. Co., 177 Pa. 252.

      William W. Porter, with him J. Frank E. Hause and Henry Pleasants, for appellee,
    cited: Provident Life & Trust Co. v. Phila., 202 Pa. 78; Mengell v. Water Co., 224 Pa. 120; Halfman v. Ins. Co., 160 Pa. 202; Krepps v. Carlisle, 157 Pa. 358; Hamilton v. R. R. Co., 194 Pa. 1.
   Opinion by

Mr. Justice Stewart,

When a railroad company, exercising the right of eminent domain, enters upon land and definitely locates its line of road thereon, it thereby appropriates the land taken to a public use. The right of the owner to any use of the land, inconsistent with the use for which it was taken, thereupon ceases; but immediately thereupon his right to damages vests. The law substitutes the damages .for the land. But until the amount which would compensate the owner has been definitely ascertained, either by agreement between the parties or judicial determination, the owner's claim is not a debt owing by the company within the legal meaning of that term, but remains simply a claim for damages. Because interest is an incident of debt, and not an incident of unliquidated damages, it follows that when a corporation fails to make compensation to the owner for land taken, at the time of its appropriation, and delays until a final determination of the amount recoverable has been reached, the question is one of damages and not of interest. Whether the owner is entitled to damages on this account, and if so, how much, are questions sometimes for the jury. Prima facie, he is entitled to damages for delay in payment. The law contemplates that in the first instance the parties will themselves agree upon the amount. If they do agree, it is presently payable and interest attaches as an incident. If they fail to agree and either appeals to the court, it becomes a question of damages; and here, again prima facie, the owner is entitled to damages for the delay. But in fact he may not be so entitled. If he has disappointed the law and stubbornly refused to name an amount which he would be willing to accept as compensation; or .in the same spirit, has been extortionate in his demands, and has named a sum exorbitant and unreasonable, a jury might well find that he has himself unjustifiably provoked the delay and deny him all damages therefor. But the law will not presume any such conduct on his part. If the corporation would excuse itself for its delay on any such ground, the burden is on it to show the excusing facts; failing in this, the right of the owner to damages in such amount as the jury may assess is unquestionable. The right results as matter of law; the quantum alone is for the jury to determine. The learned trial judge in that part of his charge which we quote below, and which is made the subject of the first assignment, instructed the jury in strict accordance with the rules and principles we have above stated. The instruction is as follows: “Having ascertained the damages as of the 25th of April, 1905, at which time Mr. Wayne was entitled to receive whatever damage was done him, and you will consider the damages as of that date, and award him that amount, together with whatever value you may attach to the loss of the use of that money, which he would then have had, down to the present time. Whatever value you think the use of that money would have been to him, and the usual value of money is the interest rate— sometimes under circumstances it maybe higher or lower— whatever the value of that money would have been to him, and which he has lost by reason of the nonpayment, he would be entitled to, and you should add that to the damages which you ascertain he has suffered.” The complaint is that the instruction denied the jury the right of determining whether any damages were due by reason of the delay in payment. So it did, and very properly, on the evidence. The defendant offered no excuse whatever for the delay. We must presume that plaintiff stated terms to which defendant was unwilling to accede. Why unwilling? Were these terms unreasonable and extortionate? Or, did the plaintiff do anything in any way that caused or justified the refusal? The court could not on simple basis of conjecture have referred this question to the jury. No more serious error could have been committed. Prima facie, as we have said, the plaintiff was entitled to damages, and nothing was shown to the contrary. The assignment is without merit.

The second assignment has still less to support it. That part of the charge here complained of is as follows: “Say you calculate first what loss — the deprivation of the use of this money from the 26th of April down to the present time, or say the first of May, 1905, down to the present time, was, but then Mr. Wayne has had advantages which he might have been deprived of, but which the Pennsylvania Railroad Company did not deprive him of; he has had the use of the 20 acres; he has had the free and uninterrupted ingress from one side of his property to the other; and what has that been worth to him? Deduct that, then, from whatever loss the use of the money has been, and add that balance or difference to your estimate of the damages which the taking was entailed, and that would make your verdict.” It is complained that the instruction failed to include among the items the jury were. directed to consider in abatement of plaintiff's claim the fact that the defendant, during the period for which the claim is made, had not occupied the land with its railroad, the argument being that without occupancy the injuries of which the plaintiff most complained, “ the unsightly embankment, and the noise, dirt and smoke ” could not have been sustained. But why should any deduction, because of any of the things enumerated by the court or omitted, be made? It was not a question of what use the defendant made of the land; but what the use of the money which the plaintiff was entitled to receive from the defendant on April 26, 1905, but did not, was worth to him during the time it was withheld. His right to the money attached when his land was taken from him; and, for all that here appears, it was then presently payable. The right of the railroad company to enter upon the land was also immediate, and no delay on its part to exercise this right, however prolonged, could excuse its failure to pay promptly for the right it acquired. The law governing such cases is thus stated in Philadelphia v. Dyer, 41 Pa. 463, approved in Philadelphia v. Miskey, 68 Pa. 49: “It is a common rule to allow interest for the detention of money after it should have been paid. Delay of payment is not the less an injury, because the landowner may continue in the occupation of the land. Such occupation can be but permissive, at all times subject to the paramount rights of the public. The land cannot be built upon or improved, except at the hazard of the improver, and it is worthless for sale. Its principal value has been taken away by the ordinance directing the street to be opened, and the city has acquired the right to enter at will.'' Here the railroad company acquired the right to inflict upon the plaintiff any and all of these different injuries when it appropriated his land; it ought to have compensated him when it acquired that right; it has not as yet made compensation, and for this delay it is answerable in damages.

The assignments are dismissed, and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Walsh, Appellant, v. Pennsylvania Coal Company.

      Negligence — Master and servant — Coal company — Contributory negligence — Nonsuit.
    In an action by an employee of a coal company against his employer to recover damages for personal injuries, a nonsuit is properly entered where it appears that the plaintiff was employed as a brakeman upon mine cars operated in the defendant's mine by an electric motor; that none of the plaintiff's duties required him to ride upon the motor, that notwithstanding this he did undertake to ride upon the top of the motor, lying flat on his face, when it was moving through a portion of the mine with which he Was fairly familiar, and which he knew to be dangerous; and that as a result of his act he was caught between the motor and an irregularity in the roof, and badly hurt.
    Argued Feb. 20, 1911.
    May 1, 1911:
    Appeal, No. 42, Jan. T., 1910, by plaintiff, from order of C. P. Lackawanna Co., Sept. T., 1908, No. 997, refusing to take off nonsuit in case of John Walsh v. Pennsylvania Coal Company.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Edwards, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      M. A. McOinley, for appellant.

      Everett Warren, with him Henry A. Knapp and C. P. O’Malley, for appellee.
   Opinion by

Mr. Justice Potter,

A careful examination of the evidence in this case has satisfied us that the judgment of compulsory nonsuit was properly entered, and that the court below did not err in refusing to take off the judgment. The plaintiff was employed as a brakeman upon mine cars moved by an electric motor in the mines of the defendant company. His duties were to throw switches, change the trolley, attend to the couplings, restore the cars to the track if need be, sprag the wheels of the cars to control their speed, etc. In none of these matters was it necessary for him to ride upon the motor, as the work which he was to do required him to be on the ground. Yet it appears that at the time of the accident, he did undertake to ride on the top of the motor, under very dangerous conditions, and was injured while so doing. The passageway through which the motor and the cars ran, was low, the distance from the roadbed to the roof being less than five feet, and the space between the roof of the mine and the top of the motor upon which plaintiff undertook to ride, was not over twenty inches. At the place where the accident occurred, there was an irregularity or projection in the roof which brought it about three inches below the usual surface, and at this point the plaintiff was caught between the motor car and the irregularity in the roof, and was badly hurt. No sufficient reason was shown or suggested, why the brakeman should have been riding on the motor at the time, instead of walking at the side of the cars, or going ahead for the short distance required, and much less was there any apparent reason for his riding on top of the motor where the space for passage between the top of the motor and the roof was so limited. There was no seat for the brakeman upon the motor, and it was evidently not intended that he should ride thereon; if he climbed up and lay down flat upon it, as he says he did, it was to suit his own temporary purpose, and must have been at his own risk. His work of spragging the wheels, which was merely inserting short wooden sticks between the spokes, required him to walk by the side of the moving cars, and nothing but his desire to be carried a distance of thirty or forty feet seems to have induced him to get upon the motor. The accident occurred upon what was known as the “Pillar Road,” with which the plaintiff was fairly familiar; and, as the court below says in its opinion discharging the rule to take off the nonsuit, the plaintiff not only knew from several years’ experience, in a general way, the character of the roadways, the thickness of the veins, and the nature of the roof, but he “had a sufficient length of time before the accident to become acquainted with this road, and the irregularities in the surface of the roof. He had made about twenty-five trips altogether, making about fifty times that he passed along the ‘Pillar Road’ in the regular course of his employment.”

We agree with the court below, that the only conclusion that could fairly or properly be drawn from the evidence, was that the plaintiff was chargeable with contributory negligence, in venturing, as he did for his own purpose, to ride upon the top of the motor car at the time and place of the accident. The consequences were deplorable, but he brought them upon himself. The assignment of error is overrruled, and the judgment is affirmed.


text:
    Melot’s Estate.

      Wills — Election to take against will — Husband and wife.

    1. In order that an act may amount to an election to take against a will, two things are essential: first, it must be clear that the person alleged to have elected was aware of the nature and extent of his rights; second, it must be shown that having that knowledge he intended to elect.
    2. Where a husband who is the executor of his wife, with full knowledge of the facts and circumstances of the estate, files an account in which he claims credit for cash paid for the funeral expenses of his wife, in accordance with a direction in her will that they should be paid out of her estate, and files at the audit a schedule of distribution signed by himself asking the court to distribute the estate in exact accordance with the terms of the will, including the award of a legacy to himself, he cannot thereafter elect to take against the will, inasmuch as his conduct showed a clear intention to accept the provisions made for him in the will.

      Argued Feb. 27, 1911.
    May 1, 1911:
    Appeal, No. 241, Jan. T., 1910, by Samuel B. Melot, from decree of O. C. Berks Co., April T., 1910, No. 11, dismissing exceptions to adjudication in Estate of Esther K. Melot, deceased.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication. Before Bland, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      Caleb J. Bieber, with him Hiester A. Bowers, for appellant.
    There was no prior election in pais: Dickinson v. Dickinson, 61 Pa. 401; Anderson’s App., 36 Pa. 476; Fulton v. Moore, 25 Pa. 468; Patterson’s Est., 46 Pitts. L. J. 63; Allison v. Wilson, 13 S. & R. 330; Wambold’s Est., 1 Kulp, 509; English v. English 3 N. J. Eq. 504; Beattey v. Byers, 18 Pa. 105; Barry’s Est., 13 Phila. 310.

      F. A. Marx, for appellees.
    The appellant’s election to take under the will was established by his acts: Clarke’s App., 79 Pa. 376; Wise v. Rhodes, 84 Pa. 402; Scholl’s App., 1 Monaghan, 572; Moore’s Est., 23 Pa. C. C. R. 340; Furbush’s Est., 220 Pa. 166.
   Opinion by

Mr. Justice Potter,

The single question raised by the seven assignments of error in this appeal, is whether appellant, who was the husband of Esther K. Melot, was bound by the terms of his wife’s will. Esther K. Melot died April 5, 1909, leaving to survive her a husband and five daughters, four of them children of a former marriage, and one the child of her marriage with appellant. She left a will which was duly admitted to probate, whereby she gave her husband a smaller interest in her estate than he would receive by taking against the will. She named as executors her husband and one daughter, who both qualified, and letters testamentary were granted to them. On February 24, 1910, the executors filed their account, which was called for audit April 4, and was audited on April 6. Ten days later, on April 16, and before an adjudication had been filed, the husband, Samuel B. Melot, filed a paper by which he refused to take under the will of his wife, and elected to take his share of her estate according to law. On April 23, four of the daughters of Mrs. Melot, all of whom were legatees under her will, filed a petition averring that the husband had accepted under the will, and praying that his election to take against it be stricken from the record. An answer to this petition and a replication were filed. The court also granted a rehearing in the matter of the audit of the executor’s account. On April 25, the rehearing was had and the audit was closed, and on May 18 an adjudication was filed, in which it was held that the husband had elected, by his conduct in pais, to take under the will before, filing his election to take against it; that his election was therefore ineffective, and that the balance in the hands of the accountants must be distributed in accordance with the will. The husband filed exceptions, and thereafter the court made an order granting the prayer of the petition to strike his election from the record, and dismissed the exceptions and confirmed the adjudication absolutely.

The general rules for determining whether there has been an election by matter in pais have been many times set forth. Thus in Bradfords v. Kents, 43 Pa. 474, Mr. Justice Strong said (p. 484): “That an election may be evidenced by matter in pais as well as by matter of record is certain, and it was conceded in the court below. It is true, nothing less than unequivocal acts will prove an election, and they must be acts done with the knowledge of the party’s rights, as well as of the circumstances of the case. Nothing less than an act of choice intelligently done will suffice.” A statement of the rule which is in line with our Pennsylvania decisions is found in 11 Am. & Eng. Ency. of Law (2d. ed.), 97, as follows: “In order that an act may amount to an election, two things are essential: first, it must be clear that the person alleged to have elected was aware of the nature and extent of his rights; second, it must be shown that, having that knowledge, he intended to elect.” That an election once made, with full knowledge of the facts, is final and conclusive, appears from the doctrine laid down in Zimmerman v. Lebo, 151 Pa. 345, where Mr. Justice Williams said (p. 349): “An election is a choice between two or more things or lines of action by one who is not entitled to all, and when made is as a general rule binding. Thus one may have a choice of remedies, a choice of the time or mode of performance of some obligation, a choice whether to affirm or disaffirm the unauthorized act of an agent, and when the choice is made the position of him who makes it is fixed. One is entitled to a full opportunity to know the situation and his rights before he can be compelled to elect; but he should endeavor to put himself in a position to make an election within a reasonable time, and when it is made it binds him and all claiming under him.”

In the present case it can hardly be doubted that appellant had full knowledge of the situation. He was an executor of the will and was active in the settlement of the estate. It also appears affirmatively from the testimony that he knew what his rights were, both under the will and without regard to it. One of the acts of appellant which the court below considered evidence of his intention to take under the will, was the fact that in his account as executor appellant claimed credit for cash paid for the funeral expenses of his wife. This was in accordance with a direction in the will, and it operated to transfer the primary liability for these expenses from the husband upon whom it would otherwise rest. This payment was inconsistent with an intention on the part of appellant to take against the will. If he had not intended to accept under the will, he could not consistently have repaid to himself the amount expended for funeral expenses. The fact that he did make such repayment is therefore persuasive evidence of his acceptance under the will. Another matter which is very significant in this connection, as evidence in support of the same conclusion, is the fact that at the audit of the account appellant submitted a distribution statement, signed by himself, asking the court to distribute the estate in exact accordance with the terms of the will, including the award of his own legacy. This action would seem to indicate conclusively his acceptance under the will, and goes far to sustain the finding of the court below. An examination of the statement, which was in the form of a petition, shows that the prayer of appellant was that distribution should be made among all the parties mentioned in the will in the exact proportion as therein directed, and that the sum of $1,000 devised to him, should be distributed to himself. After this formal recognition of the will, made with full knowledge of the facts and circumstances of the estate, it is difficult to see where there is any room for appellant to assert that he did not elect to take under the will. In Cox v. Rogers, 77 Pa. 160, the widow, who was also executrix, took credit in her administration account as follows: “By balance of personal property retained by the executrix according to the will.” This action was held to be unequivocal evidence of her election to take under the will. An examination of the evidence makes it plain that up to the time of the audit, appellant had no intention of taking against the will. His change of mind in this respect was evidently due to his dissatisfaction with the provision which had been made for his daughter Laura, and the unwillingness of the other children to increase the amount which had been bequeathed to her. We are satisfied that the facts found by the auditing judge were sufficient to justify his conclusion that the conduct of the appellant from the death „ of his wife to the time of the audit, showed a clear and consistent intention to accept the provisions made for him in the will.

The assignments of error are overruled, and the decree of the court below is affirmed.


text:
    Commonwealth ex rel. v. Sharetts, Appellant.

      Election law — Public officers — Poor directors — Constitutional law.

    1. Where directors of the poor hold their office by virtue of a special act of assembly erecting them into a corporate body, they are not county officers; but, they are public municipal officers; and although their selection is not provided for specifically in the constitution, nevertheless they are quite as much municipal officers in essential characteristics as though specifically there enumerated.
    2. Under the constitutional amendments of 1909 poor directors are to be voted for on “a municipal election day.” Poor directors elected on a general election day in the even year are without title to office.
    Argued Feb. 28, 1911.
    Appeal, No. 57, Jan. T., 1911, by defendant, from judgment of C. P. Adams Co., Jan. T., 1911, No. 52, of ouster in case of Commonwealth ex rel. H. W. Taylor v. Jacob E. Sharetts.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Quo warranto to determine title to office of director of the poor. Before Swope, P. J.
    The case turned upon the validity of an election for directors of the poor at the general election of November 8, 1910. The record showed that the office was created by the local Act of March 24,1817, 6 Sm. L. 457, relating to Adams county.
    The court entered judgment of ouster.

      Error assigned was the judgment of the court.
    TUto. Arch. McClean, with him Wm. McClean and W. C. Sheely, for appellants.
    The case is ruled by Com. ex rel. v. York County Commissioners, 19 Pa. Dist. Rep. 920.
    The boundaries of the poor district of Adams county are coterminus with the county, yet the directors of the poor elected under the special act of March 24, 1817, are not county officers: Melvin v. Summerville, 210 Pa. 41; Nissley v. Lancaster County, 215 Pa. 562; Phillips v. Kantner, 39 Pa. Superior Ct. 570.
    May 1, 1911:
    Local and special laws are not repealed by general legislation without the use of specific terms of repeal or a' well defined purpose to supply such local legislation by the substitution of a general system provided. Nissley v. Lancaster County, 215 Pa. 562; Lehigh Iron Co. v. Lower Macungie Township, 81 Pa. 482; Indiana County v. Agricultural Society, 85 Pa. 357; Allegheny County v. Gibson, 90 Pa. 397; Donohugh v. Roberts, 15 Phila. 144; Bigley v. Bellevue Borough, 158 Pa. 495; Com. v. Weir, 165 Pa. 284.

      Donald P, McPherson, with him J. Donald Swope, for appellee.
    The amendments provided a general uniform and mandatory system of elections to be applicable generally throughout the commonwealth of Pennsylvania, and as they were intended to be put into immediate effect and operation as clearly appears by their terms and the adoption of the schedule heretofore referred to, it is to be presumed that the local act applicable to the election of poor directors, etc., of Adams county, was intended to be modified in so far as its provisions for an annual election of one member of the board and the length of term of the members of the board would conflict with the terms and the intention of these amendments: Com. v. Brown, 210 Pa. 29; Nissley v. Lancaster County, 215 Pa. 562; Com. v. Macferron, 152 Pa. 244; Quinn. v Cumberland County, 162 Pa. 55; Chalfant v. Edwards, 176 Pa. 67; Weaver v. Schuylkill County, 17 Pa. Superior Ct. 327; Com. v. Brown, 25 Pa. Superior Ct. 269.
   Opinion by

Mr. Justice Stewart,

Where directors of the poor hold their office by virtue of a special act of assembly erecting them into a corporate body, as is the case here, they are not county officers. So much was clearly decided in Nissley v. Lancaster County, 215 Pa. 562. But it by no means follows that they are unaffected by the constitutional amendments of 1909. Though not county officers, they yet are public municipal officers. Their selection is not provided for specifically in the constitution, nevertheless they are quite as much municipal officers in essential characteristics as those specifically there enumerated. The argument in support of appellant’s contention is based on the fact that directors of the poor are omitted from sec. 3 of amended article VIII of the constitution, which reads as follows: “All judges elected by the electors of the State at large may be elected at either a general or municipal election, as circumstances may require. All elections for judges of the courts for the several judicial districts, and for county, city, ward, borough and township officers, for regular terms of service, shall be held on the municipal election day, namely, the Tuesday next following the first Monday of November, in each odd numbered year, but the General Assembly may by law fix a different day, two-thirds of all the members of each House consenting thereto; Provided that such election shall always be held in an odd numbered year.” The argument takes no account of the scheme of the several amendments which were adopted, or the end that was to be accomplished through them, and overlooks other constitutional provisions which bear directly upon the question in issue and show conclusively that while specific mention is not here made of poor directors, they are not even by intendment excluded. An unmistakable purpose of the amendments of 1909 was to simplify our system of elections by reducing the number of elections held in any one year. To this end it is provided that general elections for the election of state officers shall be held biennially on the Tuesday following the first Monday of November in each even numbered year, and that the same day in each odd numbered year shall be “a municipal election day.” We need not stop to show how inconsistent, not only with this general scheme, but with the provisions of the unamended constitution, an exception of the office of poor director out of the class to be voted for at a municipal election would be. Its repugnancy is apparent, and the lack of all reason for the exclusion is quite as much so. The constitution unamended, for very wise purposes, disassociated municipal elections from general elections, but prescribed a separate day for each in the same year. The purpose of the amendment was not to again associate them, but to make them occur in different years, observing the same distinction as theretofore. It being within legislative power to create other municipal offices than those specifically mentioned in the section referred to, if the argument for the relator holds, no such offices so created could be voted for at a municipal election, and it would be an open question, perhaps one not easily solved, whether they could under constitutional provision be voted for at a general election. Section 1 of art. XII, unamended, provided that: “All officers whose selection is not provided for in this Constitution, shall be elected or appointed as may be directed by law.” As amended by amendment 7, adopted in November, 1909, it now reads: “All officers whose selection is not provided for in this Constitution, shall be elected or appointed as may be directed by.law: Provided that elections of State officers shall be held on a general election day, and elections of local officers shall be held on a municipal election day, except when, in either case, special elections may be required to fill unexpired terms.” This express provision overcomes every possible presumption that it was intended that sec. 3 of .amended article VIII should apply only to such municipal offices as are specifically mentioned, and shows a manifest pure pose to require all municipal officers, including as well those already existing as those thereafter to be created, to be voted for on “a municipal election day.” The office of poor director then being a municipal and therefore a local office, not excepted out of the constitutional provisions as to the date of election, the schedule which was adopted to carry the amendments into operation, governs it alike with all officers voted for by the people. This schedule provides: “In the case of officers elected by the people, all terms of office fixed by Act of Assembly at an odd number of years shall each be lengthened one year, but the Legislature may change the length of the term, provided the terms for which such officers are elected shall always be for an even number of years.” It follows that the election of the appellant to the office of poor director at an election in November, 1910, an even year, was futile, and that he is without title to the office.

The judgment of ouster is affirmed.


author: Mr. Justice Brown,

text:
    Commonwealth v. Endrukat, Appellant.

      Criminal law — Murder—Insanity—Verdict—Twice in jeopardy.

    1. Where a prisoner has been put on trial for murder, and his insanity at the time of the trial has been set up in defense, and the jury instructed by the trial judge to pass upon both the question of his guilt and the question of his sanity at the time of the trial, and has returned as one verdict (against the objection of the prisoner), that the prisoner is guilty of murder of the first degree, and insane at the time of the trial, and the jury has been discharged, and thereafter the court of its own motion sets aside the verdict and grants a new trial, the prisoner may again be put on trial upon the same indictment.
    2. In such a case it was the duty of the jury at the first trial to return a verdict that the prisoner was insane at the time of the trial without more. The additional finding that he was guilty of murder was without authority, was a mere nullity, and should not have been accepted by the court. There was no trial at all on the charge against him, and he was no more in jeopardy after the jury had been sworn than he was before he had been called upon to plead.
    3. Where a court through inadvertence or otherwise accepts a verdict which a jury is powerless to render, it may thereafter, of its own motion, set such a verdict aside.
    Argued March 6, 1911.
    Appeal, No. 39, Jan. T., 1911, by defendant, from judgment of O. & T. Phila. Co., Oct. Sessions, 1907, No. 273, on verdict of guilty of murder of the first degree in case of Commonwealth v. Frank Endrukat.
    May 1, 1911:
    Before Fell, C. J., Brown, Mestrezat,.Potter and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned among others were in sustaining the demurrer of the commonwealth to the prisoner’s special plea of former jeopardy, and in overruling the defendant’s motion in arrest of judgment.

      Franz Ehrlich, Jr., with him Edward W. Wells, for appellant.
    The prisoner was twice in jeopardy: McFadden v. Com., 23 Pa. 12; Com. v. Cook, 6 S. & R. 577; Com. v. Clue, 3 Rawle, 498; Peiffer v. Com., 15 Pa. 468; Alexander v. Com., 105 Pa. 1; Hilands v. Com., 111 Pa. 1; Com. v. Fitzpatrick, 121 Pa. 109; O’Brian v. Com., 72 Ky. 333; Ex parte Spier, 12 N. C. 491; Ex parte Tice, 32 Oregon, 179 (49 Pac. Repr. 1038); Helm v. State, 66 Miss. 537 (6 So. Repr. 322).

      John M. Patterson, assistant district attorney, with him Samuel P. Botan, district attorney, for appellee.
    The prisoner was not twice in jeopardy: McFadden v. Com., 23 Pa. 12; Com. v. Cook, 6 S. & R. 577; Com. v. Clue, 3 Rawle 497; Hilands v. Com., 111 Pa. 1; Com. v. Fitzpatrick, 121 Pa. 109.
   Opinion by

Mr. Justice Brown,

Though the question raised on this appeal is a new one, the answer to it is old. In the paper-book of counsel for appellant the following is a fair statement of it: “Where a prisoner has been put on trial for murder in the first degree and his insanity at the time of the trial has been set up in defense and the jury instructed by the trial judge to pass on both the questions of his guilt of murder and of his sanity at the time of trial, and has returned as one verdict (against the objection of the prisoner), that the prisoner is guilty of murder of the first degree and insane at the time of trial, and the jury has been discharged; and thereafter the court of its own motion sets aside the verdict and grants a new trial against the prisoner’s objection — can the prisoner again be put on trial upon the same indictment, or does his former jeopardy entitle him to a discharge?”

On December 12, 1907, the prisoner was arraigned and ordered to plead to an indictment charging him with murder. When so arraigned a petition was presented to the court asking for a special jury to be impaneled to inquire into his sanity in accordance with the provisions of the sixty-seventh section of the Act of March 31, 1860, P. L. 427. After investigation by the court this was denied, and thereupon, a special plea having been filed, alleging that the defendant was then insane, the court was asked “to give oyer to said plea in the manner provided by law.” This plea having been overruled and the defendant having stood mute, the court directed a plea of “not guilty” to be entered for him on the indictment, and the jury were instructed to pass not only upon his guilt, but upon his mental condition at the time of the trial. On the next day— December 13, — a verdict was returned finding the prisoner guilty of murder of the first degree “and now a lunatic and of unsound mind.” The prisoner was then committed to an asylum for the insane, but, upon the certificate of the superintendent of the institution that he no longer needed remedial treatment and was sane, was returned to the county prison on January 5, 1909. On December 2, 1910, the commonwealth moved for judgment upon the verdict, but the court of its own motion set it aside and awarded a new trial for the reason that in view of the finding of the jury that the prisoner was insane at the time he was tried, he could not legally have been placed on trial; and it was ordered that if he then in proper manner and with sufficient prima facie evidence should demand an inquiry as to his sanity, such preliminary inquiry would be disposed of before the trial of the main issue. Shortly thereafter, on December 21, 1910, the prisoner was again arraigned a"nd ordered to plead. His counsel thereupon, in bar of further proceedings against him, filed a plea alleging his former jeopardy on the indictment, because (1) on December 13, 1907, the jury had been discharged without and against his consent, after returning a verdict of guilty of murder of the first degree, and that he was then a lunatic and of unsound mind, a motion having been made to the court to accept only the finding that he was a lunatic and to return the indictment to the jury; and (2) because on November 2, 1910, the court of its own motion had set the said verdict aside. The commonwealth’s demurrer to this plea having been sustained, the prisoner was again directed to plead, and, having stood mute, the court ordered a plea of “not guilty” to be entered for him. His counsel then offered to show by testimony that he was insane, whereupon the court stated that it would hear the testimony, and, after hearing it, would decide whether the question of his sanity should be referred to a jury or not. To this counsel for the prisoner objected, insisting that a jury should be impaneled to try the question of his sanity at that time, without any preliminary investigation by the court. The court having declined this, counsel for the prisoner offered no evidence upon the subject, and the trial then proceeded, resulting in a verdict of murder of the first degree. From the judgment upon it we have this appeal.-

In submitting to the first jury both questions, the guilt of the prisoner and his sanity at the time of his arraignment, the court followed Webber v. Com., 119 Pa. 223, in which the question raised was whether a defendant in a criminal case, who alleges his insanity at the time of arraignment, is entitled, as a matter of legal right, to have a separate, independent and preliminary trial of that question by a jury specially impaneled for the purpose, and it was decided that, under the rule of the common law in force with us, as changed by the act of Geo. IV, c. 28, sec. 2, when the question of sanity at the time of the trial is raised, it may be tried either by a special jury impaneled for that purpose, or by the jury who are to try the indictment.

When the jurors to whom the two questions were submitted found that the prisoner was insane at the time of his arraignment and during his trial, they could proceed no further, and they should have returned to the court room to have that finding alone recorded. It meant, and its legal effect was, that the prisoner could not be tried on the charge of murder, or on any other that then might have been pending against him. The verdict of guilty of murder of the first degree ought not to have been accepted by the court, but should have been treated as a nullity, for in view of the finding of the jury of the prissoner’s insanity at the time he was put upon his trial, their attempt to try him on the indictment was abortive. It was no trial at all on the charge against him, and he was no more in jeopardy after the jury had been sworn than he was before he had been called upon to plead. The error into which counsel for the prisoner have fallen is in assuming that he was on trial on the indictment charging him with murder. As already stated, the answer to their contention is old, but it is brief, too. A man who is insane at the time he is arraigned and called upon to plead cannot be tried, for it matters not that he may have been sane at the time of the commission of the act charged against him, or that the evidence of his guilt may be strong, the law in its humanity says that with the departure of his reason there may have departed the means by which he might have been able to establish his innocence. A prisoner insane at the time of his arraignment can no more be put upon trial than a child incapax doli. “It is said by Lord Hale (1 Hale, 34, 35), that if the prisoner, after his plea, and before trial, becomes insane, he shall not be tried; and if after his trial, he becomes insane, he shall not receive judgment; and if after judgment, he becomes insane, his execution shall be spared; because, if he was of sound mind, he might allege something in stay of judgment or execution. He has omitted the case of insanity happening during the trial; but, upon the principle of the other cases, no doubt, in such case, the jury should be discharged from giving a verdict:” Tilghman, C. J., in Com. v. Cook and others, 6 S. & R., 577.

It is the duty of a court to refuse to accept a verdict which a jury is powerless to render, and if through inadvertence or otherwise, such a verdict is accepted, the court may of its own motion set it aside, for courts have the inherent power to correct errors in cases tried before them, and in the exercise of such power may grant new trials of their own motion. Vide cases cited in 14 A. & E. Ency. Pl. & Pr., 932. This power was properly exercised in the present case. Even if it had been competent for the jury to pass upon the guilt or innocence of the prisoner, when their verdict of conviction was set aside, a plea of former jeopardy would not have availed him on a second trial on the same indictment: Com. v. Fitzpatrick, 121 Pa. 109.

The assignments of error are overruled, the judgment is affirmed and the record remitted for the purpose of execution.


author: Mr. Justice Elkin,

text:
    Malone v. Pierce, Appellant.

      Lateral support — Agreement to protect building — Principal and agent— Corporation.

    1. Where the president of a corporation which is about to excavate its land for the purpose of building agrees with the owner of the adjoining land to do the work in a particular way so that the building thereon will not be injured, and the president neglects to have the work done in the way specified, and as a consequence the neighboring building is injured, the owner who had relied upon the promise, and taken no precautions to shore up his building, may recover damages for injuries in an action of trespass against the president individually.
    2. If in such a case the president after having agreed for his company to do the work in a particular way, subsequently, of his own volition and without authority from the corporation, changed the method of doing the work, he exceeded his authority, and was answerable in damages for any injuries resulting from acts done in excess of his authority.
    Argued Nov. 1, 1910.
    Appeal, No. 179, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 143, on verdict for plaintiff in case of Mary K. Malone v. William T. Pierce.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for injury to land by failure to provide sufficient lateral support. Before Evans, J.
    At the trial it appeared that the defendant, W. T. Pierce, was president of the Elizabeth Land Improvement Company. The company owned land adjoining that of the plaintiff. The corporation planned to erect a new building on its own land. There was evidence that the defendant, acting for his company, agreed with the plaintiff that the corporation in the excavation for the new building should take the dirt out in small sections, and that the new wall should be constructed as these small sections of dirt were taken out, so that the wall of the plaintiff’s building would not be injured. There was evidence that the defendant failed to carry out the agreement, and that the dirt was removed all at once, as a result of which the plaintiff’s wall fell.
    The defendant presented the following point:
    If W. T. Pierce, the defendant, acted throughout as the agent of the land company, he cannot be held liable for any damage done to plaintiff’s building, even though he may have taken the supervision of the work of removing the slope of earth out of the hands of the contractor, and even though he may have omitted to take necessary precautions to protect plaintiff’s wall and have excavated in an improper manner, unless there was a willful and malicious intent on his part to injure the plaintiffs, the verdict must be for the defendant. Answer: Refused. [3]

      May 8, 1911:
    Verdict and judgment for plaintiff for $13,505.89. Defendant appealed.

      Errors assigned were (1) refusal of binding instructions for defendant and (3) refusal of point as above, quoting it.

      W. B. Rodgers, with him R. H. Jackson, for appellant.—
    The agreement was a nudum pactum: Frauenthal v. Derr, 13 W. N. C. 485; Dutton’s Estate, 181 Pa. 426; Kirkpatrick v. Muirhead, 16 Pa. 117.
    There was no individual liability of the defendant: Delaney v. Rochereau, 34 La. Ann. 1123 (44 Am. Rep. 456); Baird v. Shipman, 132 Ill. 16 (23 N. E. Repr. 384) ; Frauenthal v. Derr, 13 W. N. C. 485; New York & Washington Printing Tel. Co. v. Dryburg, 35 Pa. 298.

      James Balph, with him R. A. Balph and Thomson & Thomson, for appellee,
    cited: Sheldon v. S. S. Uncle Sam, 18 Cal. 526; Whittenton Mfg. Co. v. Memphis, etc., Packet Co., 21 Fed. Repr. 896; Stock v. Boston, 149 Mass. 410 (21 N. E. Repr. 871);. Larson v. Ry. Co., 110 Mo. 234 (19 S. W. Repr. 416).
   Opinion by

Mr. Justice Elkin,

This is an action ex delicto against defendant as an individual and not as agent or representative of the corporation of which he was president at the time of the occurrences about which complaint is made. It is true that in the averments of the declaration he is referred to as agent of the land company in conducting the negotiations with the Malones. But this may very properly be treated as a recital of the facts relied on to show that there was a verbal agreement between the parties requiring the excavation to be made in a particular manner, and if such an agreement was made by appellant acting for and representing the land company as its president, he would be affected with notice of its provisions not only as an officer of the company but as an individual as well. In the view we take of this case it is not important to discuss the question whether the so-called agreement was a mere nudum pactum as is contended by appellant. Without reference to an express contract of any kind, appellant owed certain duties to the adjoining landowner. If one in the exercise of his own rights of property injure his neighbor he is liable in damages if the injury resulted from wilful, wanton or negligent conduct. This rule is everywhere recognized. The right to lateral support is limited to the land itself in its natural condition, and there can be no recovery for injuries to buildings or improvements resulting from the withdrawal of such support, in the absence of proof of negligence or carelessness in making the excavation: McGettigan v. Potts, 149 Pa. 155; Matulys v. Coal & Iron Company, 201 Pa. 70. If, however, the excavations are made in a careless and negligent manner and the buildings of the adjoining owner are thereby injured the party so negligently making such excavation may under certain circumstances be held liable in damages to the extent of the injury suffered: Hannicker v. Lepper, 6 L. R. A. (N. S.) 243; Larson v. Railway Company, 16 L. R. A. 330. In the case last cited, Mr. Justice Babclay, in delivering the opinion of the Supreme Court of Missouri, said: “If defendant notified plaintiff that a certain mode of proceeding was to be pursued and thus led him to act upon that hypothesis and refrain from taking steps which would otherwise have been necessary and prudent to insure the safety of his property, the risk of injury to the plaintiff in the premises imposed on the defendant the duty towards him of conforming to the plan of work of which it had advised him, or to reasonably notify him of a change in that plan in season to admit of his adopting protective measures of his own.” We think this is a sound rule. There are certain reciprocal duties which adjoining landowners owe to each other and in no class of cases should these reciprocal rights and duties be more carefully guarded than when excavations are to be made as in the case at bar. Of course, the land company had the right to make the excavation on its own lot and was acting within its legal rights in so doing. However, in the assertion of its own rights the duty rested upon it not to carelessly or negligently injure the property of its neighbor. The land company was under no legal obligation to support the brick wall and buildings belonging to appellee whose duty it was to support and protect her own buildings. In such a situation the parties undertook to do the wise and prudent thing by agreeing how the work should be done. There is some dispute as to whether such an agreement was in fact made and the learned trial judge submitted this question to the jury who found in favor of the appellee. However, if no valid binding agreement had been entered into by the parties, but only a promise made by the excavator to do the work in a particular way regarded by both owners as safe, and this promise was relied on by appellee, and afterwards without notice of a change in the plan appellant proceeded to make the excavation in some other way proven to be unsafe, he could not then be heard to say that no liability for damages attached to him because the primary duty rested on appellee to protect her own property. Under such circumstances appellee had the right to rely on the promise thus made and refrain from doing what otherwise might have been regarded as necessary to protect her property. In this view of the case the verbal agreement between the parties only becomes important as showing the method agreed upon for making the excavation in a safe manner. We have discussed the same question in another opinion this day handed down. See Cooper v. Altoona Construction Company, post, p. 557.

It is also argued that the suit should have been brought against the corporation, the owner of the lot in which the excavation was made. The suit might have been so brought and there is nothing in the record to indicate why this was not done. We cannot agree that the right of action existed only against the land company and that there is no cause of action against appellant. If appellant as the agent or representative of the land company made the agreement relied on, he was presumed to know its terms, and this imposed upon the company and upon appellant the duty of doing the work in the manner agreed upon, or to give reasonable notice of a change of plans. If on the other hand there was a positive agreement supported by a sufficient consideration to do the work so as to protect the property of appellee, this would be binding upon the parties. This was the theory upon which the case was tried in the court below, and certainly this gave appellant advantage of all he was entitled to. If he subsequently of his own volition and without authority from the corporation changed the method of doing the work he exceeded the authority of his principal and would be answerable in damages for any injuries resulting from acts done in excess of his authority. The evidence is sufficient to submit to the jury on the question of wilful and wanton negligence on the part of appellant. The case was tried on its merits and we are not convinced that any reversible error was committed in its submission to the jury.

Judgment affirmed.


author: Mr. Justice Mestrezat, Mr. Justice Moschzisker,

text:
    Ashworth v. Pittsburg Railways Company, Appellant.

      Street railways — Common carriers — Passengers—Bates—Classification of cities — Municipalities—Constitutional law — Local and special legislation — Act of June 7,1907, P. L. 458.

    1. The Act of June 7, 1907, P. L. 453, entitled: “An Act to regulate the maximum rate of fare to be charged for transportation of passengers by street railway companies or corporations in cities of the second class of the Commonwealth, and prescribing a penalty for the violation thereof,” is unconstitutional as local or special legislation, and involves an improper classification of cities.
    2. The act does not relate to the exercise of the corporate powers or to the corporate officers of cities of the second class, nor regulate the municipal affairs of such cities, and hence is not a subject for which cities may be classified. It follows that as the act applies to certain street-railways located in but two of the cities of the state, it is special and local legislation and, therefore, unconstitutional and void.
    Moschzisker and Potter, JJ., dissent.
    Argued Jan. 17, 1911.
    May 8, 1911:
    Appeal, No. 28, Oct. T., 1911, by defendant, from judgment of Superior Ct., April T., 1908, No. 184, affirming judgment of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 216, for plaintiff on case stated in suit of William H. Ashworth v. The Pittsburg Railways Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Appeal ’from Superior Court.
    The case turned upon the constitutionality of the Act of June 7,1907, P. L. 453. See 44 Pa. Superior Ct. 326.

      Error assigned was the judgment of the Superior Court.

      William A. Challener, with him D. A. Reed and Clarence Burleigh, for appellant.

      Wm. M. Hall, for appellee.
   Opinion by

Mr. Justice Mestrezat,

Pittsburg is a city of the second class, and the defendant is a corporation created under the laws of Pennsylvania and operates a street railway wholly within the city. For some years prior to June 7,1907, the defendant had, under a regulation of the company, charged a fare of ten cents for a continuous ride between midnight and five o’clock a. m. The legislature passed an act, approved June 7,1907, P. L. 453, 5 Purd. 5904, entitled: “An Act to regulate the maximum rate of fare to be charged for transportation of passengers by street railway companies or corporations, in the cities of the second class of the commonwealth, and prescribing a penalty for the violation thereof.” The act provides that: “No company or corporation operating a street railway in this commonwealth shall charge, demand, or receive more than the sum of five cents per trip, or passage, from each passenger on said railway, within the corporate limits of any city of the second class in this commonwealth, for a continuous ride in one car.” It also provides that “any officer, director, or employee of such company, operating as aforesaid, who shall violate the provisions of this act shall be guilty of a misdemeanor,” punishable by fine or imprisonment, or both. The plaintiff entered one of defendant’s cars on July 16, 1907, between midnight and five o’clock A. M. for a continuous trip or passage in the same car between points within the limits of the city. He tendered the conductor five cents as his fare, being the maximum legal fare for a continuous ride in a car, as provided in the act of 1907, which was refused. The conductor then demanded ten cents from the plaintiff as his fare, which the plaintiff refused to pay, whereupon the conductor stopped the car and compelled the plaintiff to leave it.

This is an action of trespass brought to recover damages for the alleged illegal expulsion from the car. The trial resulted in a verdict and judgment for the plaintiff. The Superior Court having affirmed the judgment, the defendant has appealed to this court. The only question for determination here is whether the act of June 7, 1907, is void because it is special and local legislation prohibited by the state constitution. The common pleas and superior courts held that the act was not special or local legislation, and sustained it on the ground that the regulation of fares to be charged for riding on a street car in a city is a municipal regulation, and that the subject of such rates is a municipal affair and therefore within the purposes for which classification of cities is recognized as valid.

The right of the city under article XVII, sec. 9, of the constitution to impose terms on the defendant company as a condition to granting it the privilege of constructing its railway within the city is not involved in the case. That is a constitutional right of which neither the legislature nor the courts can deprive the municipality. The city may impose conditions as to rates of fare for permission to use its streets, but it is not the exercise of such power or authority that is invoked here as a justification for attempting to regulate the fares to be charged by the defendant company in the city of Pittsburg. That question, therefore, does not enter into the case.

The effect of the act of 1907 is, as suggested.by the learned judge of the common pleas, to regulate the fares of street railways in cities of the second class. It operates only on the fares of street railways, and only in cities of the second class, Pittsburg and Scranton, and this would make it a local and special law unless it is a subject for which cities may be classified. It is not claimed to be within the protection of article III, sec. 8, of the constitution. The act itself does not attempt to make a classification of cities in which it is to operate. The Act of June 25, 1895, P. L. 275, 3 Purd. 2705, divides cities into three classes: “for the purposes of legislation, regulating their municipal affairs, the exercise of certain corporate powers and having respect to the number, character, powers and duties of certain officers thereof.” Similar purposes for classifying cities were given in the prior acts on the subject. In construing this legislation, we have had occasion in numerous cases to determine the proper basis of classification. It is not necessary to review all the cases or quote from many of them, excerpts from some of the leading cases will be sufficient to indicate the principles upon which the question presented here must be determined.

In Ayars’ Appeal, 122 Pa. 266, Sterrett, J., speaking for the court, said (p. 281): “The underlying principle of all the cases is that classification, with the view of legislating for either class separately, is essentially unconstitutional, unless a necessity therefor exists, a necessity springing from manifest peculiarities, clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class, separately, that would be useless and detrimental to the others. . . . As was said in Scowden’s Appeal, 96 Pa. 422, classification which, is grounded on no necessity and has for its sole object an evasion of the constitution is quite a different thing.”

In Ruan Street, 132 Pa. 257, Mr. Justice Williams discusses the question of classification at length. After saying that classification does not authorize legislation on subjects not relating to municipal affairs and that it is only authorized for the purposes named in the statute, the opinion continues (p. 275): “In order that a given act of assembly, relating to a class of cities, may escape the charge of being a local law, it is necessary, as was said in Weinman v. Railway Co., 118 Pa. 192, that it ... . must be directed to the existence and regulation of municipal powers, and to matters of local government. . . . Classification does not authorize legislation on subjects not relating to municipal affairs. ... I will adopt the words of the Act of May 23, 1874, P. L. 230, and say that classification authorizes such legislation as relates to the exercise of the ‘corporate powers’ possessed by cities of the particular class to which the legislation relates, and to the ‘number, character, powers and duties’ of the officers employed in the management of municipal affairs. These are the purposes contemplated by the legislature; they are the only purposes for which classification seems desirable; they are the only purposes for which it has been upheld by this court. ... All legislation not relating to the exercise of (municipal) corporate powers, or to corporate officers and their powers and duties, is •unauthorized by classification.” In Scranton v. Whyte, 148 Pa. 419, we said (p. 426): “If it (the act) relates to subjects of municipal concern only, it is constitutional, because operating upon all the members of the class it is a general law. If it relates to subjects of a general, as distinguished from a municipal character, it is local, and therefore invalid, although it may embrace all the members of the class.” In Safe Deposit & Trust Co. v. Fricke, 152 Pa. 231, the court, per Stekkett, J., said (p. 239): “The purposes, for which cities are classified, and the only purposes for which such, classification is legal, are distinctly stated in said acts. ... In view of the. foregoing authorities and' the principles clearly established by them, how can it be successfully claimed that section twelve of the Act of March 22, 1877, P. L. 16, is within the recognized scope of valid legislation for cities of the second class? It certainly does not relate to the exercise of any corporate power of such cities, nor to the number, character, powers and duties of any municipal officer thereof, nor to any subject under the control of city government.”

Tested by the principles announced in these and numerous other cases it is clear, we think, that the subject of the act of 1907 is not included in the purposes for which cities may be classified. Legislation for such purposes, therefore, cannot be sustained on the ground of classification. We are unable to see any connection between the population of cities or other municipalities and street railway fares, or why the municipalities of the state should be classified according to their population for the purpose of regulating such fares. The purpose of the act of 1907, is, as declared in its title, the regulation of the maximum rate of fare to be charged for the transportation of passengers by street railway companies in cities of the second class. It is manifest that it relates solely to street railway fares, and it is, therefore, apparent that the subject is of a general, as distinguished from a municipal, character, and hence one for which cities cannot be classified for the purposes of legislation. As held in the Fricke and Ruan cases, the act of assembly declares the purposes for which cities may be classified, and the regulation of fares on street railways is not to be found among them. It is quite certain that the act does not relate to “the exercise of certain corporate powers” of cities of the second class, nor does it have “respect to the number, character, powers and duties of certain officers,” of these cities. It is, however, contended by the appellee and so held by the learned superior court that it is “a municipal regulation, and that the subject of such rates is a municipal affair,” thereby bringing the act within the purposes for which cities may be classified. We cannot concur in that conclusion. The act does not attempt to control or fix the rate of speed of the railway, nor does it change its motive power, nor does it regulate the use of the streets by the railway. Conceding the right of the state to exercise such powers, it does not attempt to do so in the act of 1907. The statute deals solely with the rates to be charged by the company for transportation within cities of the second class. It regulates such rates within, but not the affairs of, such cities. Neither in the- title nor the body of the act are the cities referred to except to define the territorial limits within which the act regulates the maximum rate of street car fares. The act imposes no obligations on second class cities, prescribes no duties they shall perform, confers no authority on them to regulate car fares, and neither deals with nor regulates any of their corporate powers or affairs. It is also true that it does not enjoin the performance of any duty upon any officer of those cities. It, therefore, does not regulate or affect the cities or their officers, but the affairs of railway companies within second class cities. It deals with the affairs of specified street railway companies, and not with the affairs of the municipalities in which they operate their railways.

We may appropriately quote the following language of the opinion in Weinman v. Railway Company, 118 Pa. 192, as applicable to the case in hand (p. 202): “It (the act) selects such (street railway) companies as may be located in cities of the second and third class, and makes special provision for them, while all other street railway companies remain under the operation of the general law.” The act of 1907 selects such railways as are located in cities of the second class and regulates the fares to be charged for transportation on them. As said by the court in the Weinman case: “This is just what the constitution declares shall not be done.”

We do not regard Reeves v. Philadelphia Traction Company, 152 Pa. 153, as ruling the present case. That case dealt with an act of assembly which, in the language of the opinion “refers solely to the management of their cars on the public streets, a subject having close relation to the powers and duties of the municipal authorities to which the act commits its control.” As pointed out above, the act of 1907 does not directly or indirectly regulate the use of the streets by the defendant company, nor does it in any manner affect the management of the company’s cars on the streets of the city.

Our conclusion is that the act of 1907 does not relate to the exercise of the corporate powers, or to the corporate officers, of cities of the second class, nor regulate the municipal affairs of such cities, and hence is not a subject for which cities may be classified. It follows that as the-act applies to certain street railways located in but two of the cities of the state it is special and local legislation and, therefore, unconstitutional and void.

The judgment of the superior court and the judgment of the court of common pleas are reversed, and judgment is now entered for the defendant in pursuance of the provisions of the case stated.

Mr. Justice Moschzisker,

dissenting:

To my mind, the subject-matter of the act in question can be properly termed a “municipal affair.” This is made evident when we reflect that if the legislature had seen fit to empower the municipalities to regulate by ordinance the “maximum rate of fare to be charged for transportation of passengers by street railway companies” operating upon their respective highways, such an act would not be an unlawful delegation of legislative power, but simply an authorization to the local bodies to regulate that which the general assembly considered an affair appropriate for municipal control. That it can justifiably be so considered is apparent, for the regulation of the fares to be charged passengers in cars operated upon the streets of a community is a natural subject of municipal control as a matter peculiarly concerning the body of its people. Indeed, in Phila. v. Phila. R. T. Co., 228 Pa. 325, we have but recently treated the regulation of street railway fares as a subject which cities have been impliedly given the right to legislate upon under the Act of April 15, 1907, P. L. 80, which act we sustained in Brode v. Philadelphia, 230 Pa. 434; and such a grant could only be sustained as legislation affecting municipal affairs. The fact that in this instance, in dealing with the same subject-matter, the state deemed it wise to act directly, would not change the character of the legislation. It seems to me that the present statute is one regulating “municipal affairs,” and that it falls within the general classification Act of June 25, 1895, P. L. 275.

My thought is, that the general assembly had the right to legislate upon the subject-matter of the act; that they could reasonably treat it as a municipal affair; that they did so treat it; and that the statute is saved from the taint of local legislation by the act of 1895.

If, however, the act should not be accounted a general one applying to the municipal affairs of a class of cities, then, in view of the decision of this court in the recent case of Roumfort Co. v. Delaney, 230 Pa. 374,1 fail to perceive anything in the constitution to forbid it as special or local legislation. In its application to certain cases, such an act might prove unconstitutional as confiscatory, or as an undue interference with vested charter rights, but that point is not railed in the present records

I would affirm the judgment of the two courts that have already passed upon the question involved.

Mr. Justice Potter joins in this dissent.

Announcement


text:
    Westervelt v. Dives, Appellant.

      Negligence — Statutory duty — Penalty—Cumulative remedy.

    1. Where a statute imposes a duty where none existed before, the presumption is that the remedy provided therein for the breach of the duty is exclusive; but if a plain duty is imposed for the benefit of individuals, and the penalty is obviously inadequate to compel performance, the implication will be strong, if not conclusive, that the penalty was meant to be cumulative to such remedy as the common law gives when a duty owing to an individual is neglected. And if the duty imposed is obviously meant to be a duty to the public, and also to individuals, and the penalty is made payable to the state or to an informer, the right of an individual injured to maintain an action on the case for the duty owing to him will be unquestionable.

      Negligence — Elevators—Safety appliances — Act of May SO, 1895, P. L. 129 — Cumulative remedy.

    2. The penalty provided by the Act of May 30, 1895, P. L. 129, for failure to attach automatic locking devices to elevators, is not exclusive of the right of a person who is injured by reason of the neglect of the duty imposed by the statute, to maintain an action for the injuries sustained. It is immaterial that the person injured may have been a fellow servant of the operator of the elevator.
    Argued Feb. 27, 1911.
    Appeal, No. 269, Jan. T., 1910, by plaintiffs, from judgment of C. P. Berks Co., March T., 1907, No. 68, on verdict for plaintiffs in case of Elsie May Westervelt, by her father and next friend, Charles A. Westervelt, and the said Charles A. Westervelt v. Josiah Dives and George S. Pomeroy, trading as Dives, Pomeroy and Stewart.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Enlich, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for Elsie May Westervelt for $1,924, and for Charles A. Westervelt, $260. Defendants appealed.

      Error assigned amongst others was in refusing binding instructions for defendants.

      May 8, 1911:

      J. B. Stevens, with him Jefferson Snyder and G. B. Stevens, for appellants.
    The act in question does not' expressly give a right of action for an injury attributable to the nonperformance of the duty prescribed or declare that the failure to comply with its provisions shall be taken to be negligence per se: Mack v. Wright et al., 180 Pa. 472; Venango County v. Penn Bridge Co., 215 Pa. 199.
    Plaintiff was not injured while engaged in the duty of her employment, but while being carried beyond her destination by the operator of the car: Jones v. Caramel Co., 225 Pa. 644; Remmert v. R. R. Co., 1 Berks County Law J., 149; Berryman v. R. R. Co., 228 Pa. 621.

      Isaac Hiester, with him Frank S. Livingood, for appellees, cited: Stehle v. Jaeger Automatic Machine Co., 220 Pa. 617.
   Opinion by

Mr. Justice Potter,

This was an action of trespass brought by the father of Elsie May Westervelt, as her next friend, and in his own right, to recover damages for personal injuries sustained by her through the alleged negligence of defendants. The plaintiff was employed by defendants in their store, and upon the day of the accident was occupied on the first floor. Having occasion to go to the third floor, she requested the operator of the elevator to take her up. He assented, and she got on the elevator. The operator playfully refused to let her off at the third floor, but carried her on to the seventh floor. At this point the elevator was stopped, and the operator temporarily left the car, leaving the plaintiff on the elevator with the door open. Immediately afterwards the elevator began to move upward, when plaintiff turned around and apparently attempted to get out, and was caught between the elevator floor and the top of the doorway, and seriously injured. To recover damages for these injuries, this suit was brought, and the negligence charged was failure to comply with the requirements of the Act of May 30, 1895, P. L. 129, as to the attachment of automatic locking devices to elevators.

At the trial defendants offered no testimony, but moved for judgment of compulsory nonsuit, and when this motion was overruled, the court was asked to give binding instructions in their favor. This request was refused, and the case was submitted to the jury, who found a verdict for the plaintiff and for her father. From the judgments entered upon the verdicts, the defendants have appealed.

The provisions of the Act of Assembly of May 30, 1895, P. L. 129, above cited, require that all passenger elevators shall be equipped with an automatic device, that will hold immovable and secure the elevator carriage while the door at a landing is open. And it is further required that this device must work independently of the action of the attendant, so long as the door at the landing is open.

In the present case it appears from the evidence that the defendants were using an elevator not equipped with the required locking device; for, in the temporary absence of the attendant, the elevator moved away from a landing while the door was open, and serious injury resulted to the plaintiff who was lawfully using the car. It is contended that defendants are not liable for damages for these injuries, resulting from a failure to equip the elevator with the locking device, for the reason that the statute provides a penalty for noncompliance with its requirements, and this remedy it is said is exclusive. This court announced a general rule, when in Mack v. Wright, 180 Pa. 472, it said (p. 476): “The presumption is that where a statute imposes a duty where none existed before, the remedy provided therein for the breach of the duty is exclusive.” But this rule is not without exceptions, as is pointed out in Cooley on Torts, page 653, as follows: “If a plain duty is imposed for the benefit of individuals, and the penalty is obviously inadequate to compel performance, the implication will be strong, if not conclusive, that the penalty was meant to be cumulative to such remedy as the common law gives when a duty owing to an individual is neglected. And if the duty imposed is obviously meant to be a duty to the public, and also to individuals, and the penalty is made payable to the State or to an informer, the right of an individual injured to maintain an action on the case for the duty owing to him will be unquestionable.” This principle was recognized in Stehle v. Jaeger Automatic Machine Co., 220 Pa. 617, where our brother Elkin, in referring to the provisions of the statute of May 2, 1905, P. L. 352, which prohibits the employment of children under fourteen years of age, said (p. 620): “It is true the statute is penal, and violations of its provisions, upon conviction, are punishable by fine or imprisonment, but these remedies are not exclusive and do not supersede the right of action for damages in a civil proceeding.”

In the present case the duty of providing a locking device was intended to be a duty to the public, and also to individuals; but the penalty for noncompliance with the statute, which is made payable to the public officer, affords no redress to the individual who suffers by reason of the neglect of the duty imposed by the statute. The right therefore to maintain this action in behalf of the individual injured, seems to be beyond question. The trial judge charged the jury that if they found the elevator was not equipped with the safety device required by the statute, they would be justified in inferring negligence on the part of the defendants, and if the plaintiff was injured by reason of this neglect of duty, without fault upon her part, she would be entitled to recover. We think this instruction was entirely proper.

In the argument of counsel for appellants, it is also suggested that the injury to plaintiff resulted from the action of the operator of the elevator, who was a fellow servant. But the case does not rest upon any allegation of negligence by the operator. The neglect of duty charged, was the failure to equip the elevator with the safety device required by the statute. With that failure the operator had nothing to do. If the statute had been obeyed, the accident could not have occurred, as the car would have been held secure and immovable while the door was open, without regard to the action of the operator.

We see no merit in any of the assignments of error; they are overruled, and the judgment is affirmed.


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    Peoples National Bank of Pensacola v. Hazard, Appellant.

      Appeals — Assignments—Verdict—Refusal of continuance — Refusal of new trial — Practice, C. P.

    1. The verdict of the jury is not properly assignable for error.
    2. The granting or refusal of a motion for a continuance is a matter within the discretion of the trial judge, and his action will not be overruled on appeal, except for manifest error.
    3. The trial court does not err in refusing a continuance until the return of a commission issued to a distant city, where the record shows that a rule for the commission was not entered until four days before the case was called for trial, although the case had been at issue for over a year.
    4. The power of the appellate court to grant a new trial under the Act of May 20, 1891, P. L. 101, is exceptional in character and only to be exercised in very clear cases of wrong.
    5. An assignment of error to the refusal to grant a new trial will not be considered where the assignment does not set forth the motion, the reasons assigned, or the order of court.

      Evidence — Depositions—Adopting opponent’s witness.

    6. Where depositions taken on behalf of plaintiff are offered at the trial, not by the plaintiff, but by the defendant, the latter adopts the witness as his own, and he cannot complain of the action of the court in sustaining objections to certain questions asked the witness on cross-interrogatories propounded by the defendant himself.

      Promissory notes — Defenses—Evidence.

      7. In an action upon a promissory note where depositions taken on behalf of the plaintiff, but offered in evidence by the defendant, show that the plaintiff was a bona fide holder for value without notice, and such evidence is not contradicted, it is the duty of the trial judge to give binding instructions for plaintiff. In such a case although the depositions were taken for the plaintiff, the defendants adopted them when they offered them in evidence, and they cannot discredit their own testimony.

      Argued March 21, 1911.
    May 8, 1911.
    Appeal, No. 2, Jan. T., 1911, by defendants, from judgment of C. P. No. 5, Phila. Co., March T., 1909, No. 2,589, on verdict for plaintiff in case of The Peoples National Bank of Pensacola, Florida, v. Horace G. Hazard and John II. Hillman, trading as Horace G. Hazard & Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Martin, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,605.26. Defendant appealed.

      Errors assigned were (1-20) various rulings and instructions sufficiently indicated in the opinion of the Supreme Court.

      George F. Deiser, for appellants.

      A. L. Moise, with him S. D. Matlack and S. H. Alleman, for appellee.
   Opinion by

Mr. Justice Potter,

This was an action of assumpsit on a promissory note for $1,450, made by the defendants, Horace G. Hazard & Company, to the order of C. W. Hagerman, trustee, dated at Philadelphia, February 3, 1906, and payable thirty-six months after date. The note was indorsed by the payee and also by the Wells-Kahn Company, by whom it was made payable to the order of the People’s National Bank of Pensacola, Florida, the plaintiff. It was protested for nonpayment on February 3, 1909.

Upon the trial, counsel for plaintiff offered the note in evidence, and rested. The two defendants were then called by their counsel to prove that the consideration for the note was fraudulent and had failed. Counsel also read in evidence the depositions of the president of the plaintiff bank, and the manager of the Wells-Kahn Company, which had been taken by commission on behalf of the plaintiff. By these depositions it appeared that the plaintiff bank had discounted the note for the Wells-Kahn Company in the regular course of its business; that it was a bona fide holder for value, and that the Wells-Kahn Company had received the proceeds of the note. There was no evidence that the bank had notice of any equities existing between the original parties to the note. The trial judge gave binding instructions for the plaintiff, and the jury rendered a verdict in its favor for $1,605.26, upon which, after a new trial had been refused, judgment was entered. Defendants have appealed.

There are twenty assignments of error. The first four are to the verdict of the jury, which is not properly assignable for error. The fifth and nineteenth assignments allege that the trial court committed error in refusing to permit defendants to secure the presence of a material witness and in refusing a continuance until the return of a commission issued by them to Kansas City, Mo. Neither assignment quotes from the bill of exceptions and nothing whatever can be found in the testimony to support assignment five, and nothing except the allowance of an exception, to support assignment nineteen. The docket entries show that the rule for a commission was not entered until November 5, 1910, four days before the case was called for trial, although it had then been at issue for over a year. The granting or refusal of a motion for a continuance is a matter within the discretion of the trial judge, and his action will not be overrruled except for manifest error: Com. v. Buccieri, 153 Pa. 570; Gillman v. Media, etc., Ry. Co., 224 Pa. 267. The twentieth assignment is to the refusal to grant a new trial; but it does not set forth the motion, the reasons assigned, or the order of the court. The power of this court to grant a new trial under the Act of May 20, 1891, P. L. 101, is exceptional in character, and only to be exercised in very clear cases of wrong. See Murtland v. English, 214 Pa. 325. No such case is here shown. In assignments six to ten inclusive, as amended, counsel complains of the court below for sustaining objections to certain questions asked of plaintiff’s witness, James Simpson Reese, on cross-interrogatories, under the plaintiff’s commission to take testimony at Pensacola, Fla. Upon the trial, however, the deposition of this witness was read in evidence by defendants’ counsel, and was not offered by plaintiff. By this action defendants adopted the witness as their own.

The only questions properly raised by the assignments of error are whether the trial judge erred in sustaining objections to these questions, and in his final action in directing a verdict for plaintiff. Under the rules of court, objections to the admissibility of evidence taken on commission, may be taken on the trial, if the exception be one that might be taken, “if the witness were offered for examination orally in court.” While the deposition of the witness, Reese, was taken on behalf of plaintiff, yet for some reason, as we have noted, counsel for defendant saw fit to offer it in evidence as part of his own case. By so doing counsel made the witness his own, and was precluded under the general rule, from impeaching his credibility. See Penna. R. R. Co. v. Fortney, 90 Pa. 323, where Mr. Justice Merctjr said (p. 328): “It is true, as a general rule, a party cannot be permitted to impeach the veracity of his own witness.” In Fisher v. Hart, 149 Pa. 232, Mr. Justice Sterrett said (p. 235): “As a general rule neither party has a right to treat his own witness as hostile, and proceed either to cross-examine him or to call other witnesses to contradict him, without first showing sufficient cause for so doing.” No sufficient cause was here shown. Defendants’ counsel knew the contents of the deposition, before he read it to the jury; and if he regarded the witness as in any way hostile, he need not have offered the deposition. The questions ruled out went only to the credibility of the witness, and as the trial judge took the whole case from the jury, it does not seem that the defendants were harmed by the refusal to permit these particular cross-interrogatories to be answered.

This leaves for consideration, the question whether the trial judge was justified in giving binding instructions in favor of the plaintiff. With regard to this matter, the situation was as follows: Defendants offered some testimony as to representations made to them by the payee of the note, which they claimed were fraudulent, and which induced them to assign and deliver the note. Their counsel then read in evidence the depositions of the witnesses, Reese and Kahn, and, as above pointed out, thereby made them their own witnesses; these depositions show that the plaintiff bank discounted the note for the Wells-Kahn Company, without any notice whatever of any defect in, or defense to, the note. In other words, these witnesses who were the only ones to testify as to the manner in which the plaintiff bank acquired title to the note, showed clearly by their evidence, that the plaintiff was a bona fide holder for value of the note sued upon, without notice of any want of consideration for the note, or any defense as against it. This testimony offered by defendants was uncontradicted. They are therefore bound by it. Under this evidence, nothing was left for the jury to pass upon, and it became the duty of the trial judge to determine the question of law arising upon the undisputed facts. That a plaintiff, being a bona fide holder for value of negotiable paper, without notice, is entitled to recover against the maker, notwithstanding any equities existing between the maker and the payee, is clearly established. See Lancaster County National Bank v. Garber, 178 Pa. 91, and the cases there cited. In the case at bar there is no evidence whatever to affect plaintiff with knowledge of any fraud on the part of the payee of the note; and on the other hand, it does affirmatively appear from the evidence offered by defendants themselves, that plaintiff had no such knowledge.

We do not regard this case as comingwithin the principle of Second Nat. Bank v. Hoffman, 229 Pa. 429, where the plaintiff bank offered evidence to show that it was a bona fide holder, for value, of the note in suit, and it was held that the ease should have gone to the jury upon the credibility of the witnesses. Here the testimony which showed that the plaintiff was a bona fide holder of the note in suit, for value, and without notice, was offered by the defendants, and, under the authorities, they were not therefore at liberty to discredit this testimony. As matters then stood, there wras nothing left for the trial judge but to accept this testimony as true, in so far as it affected the case for defendants. With his ruling upon the legal effect to be given to this evidence we fully agree.

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