text:
    Harvey, Appellant, v. Weitzenkorn.

      Practice, C. P. — Affidavit of defense — Corporations—Subscriptions to stock — Cancellation—Appeals.
    1. An order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed, except where a pure question of law is raised and clear error has been committed.
    2. A ruling of the court below discharging a rule for judgment for want of a sufficient affidavit of defense in an acbion by a trustee of a bankrupt corporation to recover the amount of a subscription to its capital stock will not be disturbed on appeal where the affidavit avers that the defendant’s subscription was conditional and made under a collateral agreement by which he was allowed three months in which to decide whether he would take the stock, and that after he had declined to take it, the corporation “by its constituted authorities” canceled the subscription while still a solvent, going concern.

      Corporations — Stock—Subscriptions to stock — Cancellation—Contracts.
    3. A contract of subscription to stock, like any other contract, may be waived, canceled or dissolved by the mutual consent of all the parties interested.
    Argued April 12, 1911.
    Appeal, No. 50, Jan. T., 1911, by plaintiff, from order of C. P. Luzerne Co., Feb. T., 1910, No. 602, discharging rule for judgment in case of Olin F. Harvey, Jr., trustee, Dion Manufacturing Company, bankrupt, v. Joseph K. Weitzenkorn.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit on stock subscription. Before McClure, P. J., specially presiding.
    Rule for judgment for want of a sufficient affidavit of defense.
    The material portions of the affidavit of defense were as follows:
    Defendant avers that prior to July 16, 1907, the date set forth in plaintiff’s statement of defendant’s purported 'subscription of shares of the capital stock aforesaid, he .was approached on two separate occasions by W. E. Steel-man and H. B. Payne, who solicited defendant to become a subscriber for said stock; that on both occasions he refused to subscribe and told said Steelman and Payne that owing to alterations and changes then in contemplation and being made in the business establishment of his firm, which required a large outlay of money, it would be impossible for him, the defendant, or his partners to subscribe for any stock; that on July 16, 1907, Messrs. Steelman and Payne again solicited defendant for a subscription and he again refused, repeating to them the -reasons therefor; that Mr. Steelman, who represented .himself as vice president and general manager of the Dion Manufacturing Company, then stated that they wanted defendant’s subscription to the stock for the influence his .name might have towards helping them to get other subscribers, and proposed to defendant that he should subscribe conditionally and if he decided later on that he did not want the stock, the Dion Manufacturing Company would release him, the defendant, from any obligations and permit him to cancel said subscription without cost to him.
    Defendant then stated to Steelman and Payne that if the proposal last aforesaid was put in writing he would agree to subscribe upon the conditions named. On the same day defendant received from said W. E. Steelman, vice president and general manager of the Dion Manufacturing Company, a letter in words and figures following:
    “July 16th, 1907.
    “Mr. Joseph K. Weitzenkorn,
    “Wilkes-Barre, Penna.
    “Dear Sir:—
    “Confirming our verbal proposition of this morning,, we beg to advise that we will take your subscription to our capital stock and if at the expiration of three months you decide that you cannot take the stock subscribed for, we will release you of the obligation without cost to you.
    “Thanking you for any consideration you may give us, we are,
    “Yours very truly,
    “Dion Manufacturing Company,
    “(Signed) W. E. Steelman,
    “Vice Pres. & Gen. Mgr.”
    And thereupon he, the defendant, subscribed for fifteen shares of the stock aforesaid, said subscription being made by the defendant upon the expressed condition named in said above quoted letter, it being fully understood and agreed between said Steelman and himself that the said . subscription should not become binding and effective unless it was subsequently ratified and consummated by the defendant in accordance with the terms of said written proposal.
    Defendant avers that afterwards no further communication was had between himself and anyone else in relation to the matter until on October 18, 1907, he received a letter from the Dion Manufacturing Company in words and figures following:
    “October 18th, 1907.
    “Mr. J. K. Weitzenkorn,
    “No. 4 S. Main St., City.
    “Dear Sir:—
    “We hand you herewith notice of your subscription to the capital stock of this company, and will appreciate it very much if you will send us a check for the same.

      “We are operating our plant, and need the money in order that we may put our product on the market.
    “Yours very truly,
    “Dion Manufacturing Company,
    “(Signed) E. C. Wagner,
    “Treasurer.”
    ' That immediately upon receipt of the letter last aforesaid he replied thereto in a letter to Dr. E. C. Wagner, treasurer (a copy whereof is hereto attached and made part hereof), wherein he declared his decision not to take the stock conditionally subscribed for, and asked that his name be stricken from the subscription list. And defendant avers that from that time on up to May 25, 1909, when he received a letter from O. F. Harvey, Jr., which letter was in words and figures following:
    “May 25, 1909.
    “In re Dion Mfg. Co.
    “Joseph K. Weitzenkorn,
    “Weitzenkorn Bldg., City.
    “Dear Sir:
    “I was duly elected trustee of the Dion Manufacturing Company, Bankrupt, and upon going through the books of the company, I find that you made a subscription to the capital stock of the company in the sum of fifteen hundred (1500) dollars, which has not been paid.
    “As this is an asset of the company, I am obliged to call upon you for payment, and trust that you will favor me with your check at an early date for the above amount.
    “Yours very truly,
    “ (Signed) Olin F. Harvey, Jr.”
    No demand, verbal or written, of any ldnd or character, was ever made upon him for any payment, nor was notice of any call or assessment upon such subscription of stock ever given him by the said Dion Manufacturing Company, or anyone representing or. claiming to represent said company; that he was never notified to attend a meeting of the Dion Manufacturing Company; never did attend any meeting thereof; never had any knowledge of its business, and never at any time regarded himself, nor was any notice brought to him that he was regarded by said company, or its officers, as a stockholder thereof or therein.
    And defendant further avers that he had been informed, verily believes and expects to be able to prove upon the trial of this cause, that the Dion Manufacturing Company by its constituted authorities, upon receipt of defendant’s letter declaring his decision not to take the stock thus conditionally subscribed for, canceled the said subscription, and while a solvent going concern, never entered the defendant’s name upon its books or account as a subscriber, or treated said subscription as an asset of the company.
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Andrew Hourigan, with him Thomas Butkiewicz, Jr., for appellant.
    — A subscription to a joint stock is not only an undertaking to the company, but with all other sub'scribers. Such contracts are trilateral, and even if fraudulent as between two of the parties, they are to be enforced for the benefit of the third: Graff v. Pittsburg & Steub. R. R. Co., 31 Pa. 489; Miller v. Hanover Junct. & Sus. R. R. Co., 87 Pa. 95; Altoona Milk Co. v. Armstrong, 38 Pa. Superior Ct. 350; Dettra v. Kestner, 147 Pa. 566; Braddock Elec. Ry. Co. v. Bily, 11 Pa. Superior Ct. 144.
    When the subscription is absolute, the subscriber cannot be permitted to set up a secret parol arrangement, perhaps with some unauthorized agent, by which he may be released from his subscription while his fellow subscribers continue to be bound: Miller v. R. R. Co., 87 Pa. 95; McCarty v. R. R. Co., 87 Pa. 332.

      Joseph D. Coons, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Potter,

The appellant here alleges that the court below erred in discharging a rule for judgment for want of a sufficient affidavit of defense. The action was assumpsit to recover the amount of a subscription to capital stock. In his affidavit of defense, the defendant alleged that his subscription was conditional, and was made under a collateral agreement, by which he was allowed three months time in which to decide whether he would take the stock or not. Neither the statement of claim nor the affidavit of defense makes it clear whether the company had been incorporated at the time the subscription was taken. While our cases seem to make a distinction between conditional subscriptions to the capital stock of a corporation made before incorporation, and those made after-wards, yet the rights of cosubscribers are not to be injuriously affected by any secret agreement. Where other subscriptions are made upon the faith of a signature, it would be unjust to permit a secret arrangement to prevail. See Miller v. Hanover Junction R. R. Co., 87 Pa. 95. This case was cited in Moore v. R. R. Co., 94 Pa. 324, where it was said (p. 328): “the defendant Miller, set up a secret parol condition in order to defeat his subscription, but it was held that he could not be permitted so to do, on the ground that it would be unjust and a fraud upon his cosubscribers to permit him, on such grounds, to escape responsibility and thus throw upon them an additional burden.” See also Phila. & Del. County R. R. Co. v. Conway, 177 Pa. 364; Marles Carved Moulding Co. v. Stulb, 215 Pa. 91. In Real Estate Trust Co. v. Manufacturing Co., 223 Pa. 350, it was held that a subscriber to the stock of a corporation could set up a secret parol agreement in defense to an action by the assignee of the company, to recover the amount of the subscription, only because (p. 356) under the terms of the subscription agreement, if he should be relieved of liability, all the other subscribers would also be released.

Under these and other general authorities which might be cited, the right of the defendant to successfully set up a collateral agreement seems doubtful. But in his affidavit of defense he goes further and avers that after he had declined to take the stock, and while the company was still a solvent, going concern, it canceled his subscription. The general rule is that “A corporation may release a subscriber so far as to estop it and its assignee in insolvency from suing thereon:” 4 Thompson on Corporations (2d ed., 1909), sec. 3869. “A subscription contract, like any other contract, may be waived, canceled or dissolved by the mutual consent of all the parties interested. The interested parties are the subscriber him- ■ self, the other stockholders, and the corporate creditors, existing at the time of the cancellation:” 1 Cook on Corporations (6th ed., 1908), sec. 168. “Such cancellations are good when permitted by the governing statute, where there are no creditors and provided all the stockholders assent:” 10 Cyc. 452.

The affidavit is not as specific as it might be, in setting out the facts as to the alleged cancellation, and does not set out the manner in which it was done; but it does aver on information and belief, that the corporation “by its constituted authorities” canceled the subscription. An order discharging a rule for judgment for want of a sufficient affidavit of defense will not be reversed, except where a pure question of law is raised and clear error has been committed: Wilson v. Trust Co., 225 Pa. 143, and cases there cited.

The present case is by no means so clear as to warrant, us in reversing the order of the court below. The specification of error is overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Hoch v. Butler Township, Appellant.

      Negligence — Municipal corporations — Highways—Notice—Evidence— Circumstantial proof.

    In an action against a township to recover damages for injuries received by plaintiff through falling from a heavily loaded wagon on which he was riding down a steep grade on a rough mountain road, the case is for the jury where it appears that the road had been in very bad condition for months and the township supervisors had both constructive and actual knowledge of its defects; that the gutters at the side had become filled with earth and the surface water from rains had been diverted to the middle of the road where it had made small gullies and washed the earth from the stones in the roadbed; that a front wheel of plaintiff’s wagon struck the thin edge of a wedge-shaped stone, a foot in length and seven inches in width at its thicker end, and pushed it on the top of other large stones, raising the wheel eighteen or twenty inches; and that stones of like size were in the roadbed in the immediate vicinity, though there is no proof of the length of time the particular stones- which caused the accident had been in the road.
    Argued April 12, 1911.
    Appeal, No. 82, Jan. T., 1911, by defendant, from judgment of C. P. Luzerne Co., .Oct. Term, 1907, No. 1,026, on verdict for plaintiff in case of. Nelson Hoch v. Butler Township.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Terry, P. J., specially presiding.
    The opinion of the Supreme Court states the case.

      Errors assigned were various rulings of the court on evidence and refusal to give binding instructions for the defendant.

      F. W. Wheaton, with him Roger Dever, P. F. O’Neill and Philip L. Drum, for appellant.

      John McGahren, with him John M. Carr, for appellee.

      July 6, 1911:
   Per Curiam,

The plaintiff was injured by falling from a heavily-loaded wagon on which he was riding, down a steep grade on a rough mountain road. The road had been in very bad condition for months and the township supervisors had both constructive and actual notice of its defects. The gutters at the sides had become filled with earth and the surface water from rains had been diverted to the middle of the road, where it had made small gullies and washed the earth from the stones in the roadbed. A front wheel of the plaintiff’s wagon struck the thin edge of a wedge-shaped stone, a foot in length and seven inches in width at its thicker end and pushed it on the top of other large stones, raising the wheel eighteen or twenty inches. It was shown that stones of like size were in the roadbed in the immediate vicinity. There was, however, no proof of the length of time the particular stones which caused the accident had been in the road. Nor was such proof necessary to make out a prima facie case. If these stones had been on an otherwise even surface, there might have been a presumption that they had been placed there by a teamster to block his wagon while resting his horses or had slid down from the steep banks. But their presence in the road was not a specific defect, presumably of recent origin. They were a part of a defective condition common to the road generally.

The case was submitted to the jury with great care and we find no error in the record.

The judgment is affirmed.


author: Me. Justice Moschziskee,

text:
    Smith v. The Lehigh Valley Railroad Company, Appellant.

      Negligence — Loss of wife’s services — Survival of husband’s right to recover — Executors and administrators — Act of February 188J¡., P.L.70

      —“Actions for wrongs done to the person.”

    1. The words “except actions for wrongs done to the person” as used in sec. 28, of the Act of February 24,1834, P. L. 70, giving to personal representatives the right to prosecute actions in which, their decedent was a party plaintiff, do not describe a type of action but mean actions to recover for wrongs in the nature of physical injuries done to the person of the plaintiff decedent.
    2. A husband’s right to recover damages for the loss of the services of his wife through a negligent injury to the wife not resulting in death survives to his personal representatives after his death.

      Negligence — Railroads—Defective rail — Negligence averred — Allegata and probata.

    3. In an action to recover damages for personal injuries the allegata and probata are not out of agreement and there is sufficient evidence to sustain a verdict where the statement of claim avers, that on a certain date the defendant railroad company was operating a train of cars on its railroad in the vicinity of plaintiff’s home; “that the said train of cars, through the negligence and carelessness of the said defendant and its employees, left the tracks of the said defendant company on which it was then and there being operated by the said defendant company and its employees, and crashed into the said home, where the said plaintiff was then and there sitting,” the impact and shock throwing her from her chair and injuring her, and the testimony is sufficient, if believed, to justify the jury in finding that a defective condition of the defendant’s tracks, which had existed for a sufficient length of time to put it on notice, caused one of its cars to become derailed and run into the frame dwelling house occupied by the plaintiff, thereby ■throwing her to thp floor and producing the injuries of which she complained.

      Appeals — Supreme Court — Paper-books—Matter not embraced in statement of questions involved.

    4. Assignments of error which complain of instructions and rulings unrelated to and in no way suggested by the statement of the question involved will be dismissed on appeal.
    Argued April 12, 1911.
    Appeal, No. 91, Jan. T., 1911, by defendant, from judgment of C. P. Luzerne Co., June Term, 1907, No. 18, on verdict for plaintiff in case of Mary Smith, administratrix of Anthony Smith, deceased, and Mary Smith v. The Lehigh Valley Railroad Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass by Mary Smith, administratrix of the estate of Anthony W. Smith, deceased, and Mary Smith in her own right, against the Lehigh Valley Railroad Company. When the action was instituted Anthony W. Smith, the husband of Mary Smith, was a plaintiff, but he died before trial, and his administratrix was substituted. Before Garman, J.
    The statement of claim averred, inter alia, that on January 25, 1906, the defendant company was operating a train of cars on its railroad in the vicinity of the plaintiffs’ home; “that the said train of cars, through the negligence and carelessness of the said defendant and its employees, left the tracks of the said defendant company on which it was then and there being operated by the said defendant company and its employees, and crashed into • the said home, where the said plaintiff was then and there sitting with her baby in her lap. The impact and shock of the said crashing train was so great that the said plaintiff was thrown thereby from the chair on which she was sitting, violently and with great force against another chair, and was severely injured.” Mary Smith claimed for physical injuries and for pain and suffering, and her husband, Anthony W. Smith, for expenses incurred for medicine, medical and surgical attendance and nursing to his wife, as well as for loss of her earnings, services and companionship. Verdicts: for Mary Smith individually, $2,000; and for Mary Smith, administratrix, $500, and judgments entered thereon. The defendant has appealed.

      Errors assigned were (1) refusal to enter judgment non obstante veredicto; (2) instruction to the jury: “In estimating the damages to be awarded the estate of her husband the jury are to allow it for the expenses incurred by Anthony Smith in his lifetime in curing his wife and also for the loss of her services to him as the husband of said Mary Smith as the natural result of the accident complained of, and in considering the loss of services the jury may also estimate the loss of her companionship caused him by her injuries up to the time of his death, to wit, August, 1909”; (3) refusal of binding instructions for the defendant; (4) refusal to instruct the jury that the failure of plaintiff to produce and read the testimony given by Anthony W. Smith at the former trial warranted them in presuming that it was damaging to her case; and instructing that, as either side might offer the testimony, the failure of the plaintiff so to do would not warrant more than an inference that such testimony might be damaging; (5) refusal to instruct if the jury believed that Mrs. Smith was up and about on the day that the accident happened, and thereafter, with nothing apparently the matter with her, “their verdict should be for the defendant;” and instructing that if they believed the testimony to that effect it would go to impeach the credibility of the plaintiff, and if from such impeachment “you will disbelieve her entirely your verdict should be for the defendant;” (6) refusal of defendant’s request for charge: “The allegation of negligence in plaintiff’s statement being that defendant ‘was operating a train of cars’ and that ‘the .... train of cars through negligence and careless-, ness of the .... defendant and its employees left the' track .... on which it was then and there being operated by the defendant company and its employees,’ proof that the car left the track on account of a defective condition of the defendant’s roadbed does not sustain the plaintiff’s allegation, and the verdict must be for the defendant, unless the jury find that the derailment of the car was due to the defendant’s negligence in the operation of the train of cars,” which was declined without reading; (7) overruling defendant’s objection to the admission of certain testimony; (8) sustaining plaintiff’s objection to defendant’s offer of certain testimony.

      J. B. Woodward, of Wheaton, Darling & Woodward, for appellant.
    — The variance between the allegata and probata was fatal: Clark v. Lindsay, 7 Pa. Superior Ct. 43; McLean v. Schoenhut Co., 225 Pa. 100.
    There was no survival of the action: Cregin v. Brooklyn Crosstown R. R. Co., 83 N. Y. 595; Foels v. Tonawanda, 20 N. Y. Supp. 447; Sweet v. Metropolitan Street Ry. Co., 18 Misc. (N. Y.) 355.

      John T. Lenahan, with him James McQuade and James L. Lenahan, for appellee.
    — -The plain reading of the Act of April 15, 1851, sec. 18, P. L. 669, clearly demonstrates, even in the absence of judicial construction, that the judgment in behalf of the husband’s administratrix is unassailable: McArdle v. Rys. Co., 41 Pa. Superior Ct. 162.
    There was no variance between the statement and proofs: Gulf, C. & S. F. Ry. Co. v. Wilson, 79 Tex. 371 (15 S. W. Repr. 280); Oldfield v. R. R. Co., 14 N. Y. 310; Ware v. Gay, 28 Mass. 106; St. Louis & Southeastern Ry. Co. v. Mathias, 50 Ind. 65.
    July 6, 1911:
   Opinion by

Me. Justice Moschziskee,

This is an action instituted by a wife and husband under sec. 1, of the Act of May 8,1895, P. L. 54, to recover for personal injuries to the former and consequential losses to the latter. Pending the action the husband died and his wife was appointed administratrix of his estate; she continued the suit and obtained two verdicts, one for $2,000 in her own right, and the other for $500, as the personal representative of the estate of her deceased husband. Judgments were entered on both of these verdicts and the defendant has appealed.

The questions involved as printed in the appellant’s paper-book suggest but two points for our consideration; the first is, “Does action brought by husband for negligent injury to wife not resulting in her death survive to his personal representatives?” To start with, “At common law, a cause of action by a husband to recover for personal injuries to his wife, and for loss of her services and for medical expenses resulting from such injuries, did not survive the death of either party:” 21 Ency. of Plead. & Prac., 341. Generally speaking, a right of action to recover damages for injuries done to person or property did not survive; but this rule was relaxed by the statute of 4 Edw. Ill, chap. 7, and its supplements, so that thereafter, in certain instances, personal representatives had the same remedy as the decedent himself. While these old English statutes were declared to be in force in Pennsylvania, and were given a liberal construction, still it was held that they had reference only to wrongs which had inured to the benefit of the defendant or increased the assets of his estate at the expense of the personal property of the plaintiff’s decedent: Penrod v. Morrison, 2 P. & W. 126; Lattimore v. Simmons, 13 S. & R. 183. But the Act of February 24, 1834, P. L. 70, provided by sec. 26, “The executors or administrators of any person who at the time of his decease was a party,- plaintiff, .... in any action .... shall have full power, if the cause, of action doth by law survive to them, to become party thereto, and prosecute .... such suit .... to final judgment .... as fully as such decedent - might have done if he had lived . . . .,” and by sec. 28, “Executors or administrators shall have power to commence and prosecute all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander, for libels, and for wrongs done to the person; . . . .”

The words “except actions for .... wrongs done to the person,” as used in this statute, do not describe a type of action but mean actions to recover for wrongs in the nature of physical injuries done to the person of the plaintiff decedent; and in interpreting this statute they have been so construed: Moe v. Smiley, 125 Pa. 136. At the time the statute was passed a husband had the common-law right “to commence and prosecute” an action in tort to recover for the loss of his “wife’s society and services, and for expenses incurred:” 21 Cyc. 1526; Donoghue v. Consol. Trac. Co., 201 Pa. 181. Since the effect of the act of 1834, supra, was to make all actions which a decedent had the right to commence and prosecute survive to his personal representatives, other than those particularly excepted (Miller v. Wilson, 24 Pa. 114, 122), and since the act did not except actions of this character, a husband’s right to recover damages for the loss of the services of his wife survives his death.

Before leaving this branch of the case it may be well to note that the phrase “wrongs done to the person” in sec. 28 of the act of 1834, supra, and the phrase “injuries to the person” in sec. 18 of the Act of April 15, 1851, P. L. 669, are similar in meaning (Moe v. Smiley, supra); and that we have uniformly treated the latter as signifying injuries to the person of the plaintiff bringing the action, (Birch v. Ry. Co., 165 Pa. 339; Taylor’s Est., 179 Pa. 254; Maher v. Traction Co., 181 Pa. 391; Rodebaugh v. Traction Co., 190 Pa. 358, 362; McCafferty v. Railroad Co., 193 Pa. 339; Edwards v. Gimbel, 202 Pa. 30, 39); and not as designating a. type of action arising in whatever way from injuries to the person. The two sections referred to deal with a like subject, and there is no reason why the similar phrases used in each should not be given a like limited meaning. But if they were to be given a broader signification and held to embrace all actions growing out of injuries to the person, then the verdict recovered by the personal representatives of the deceased husband 'would fall within the remedial provision of sec. 18 of the act of 1851, supra. However, looking at the question for determination -in the light of our decided cases, we are brought to the conclusion that the phrases must be construed as before stated, that the act of 1834, supra, saved the action of Anthony W. Smith from abating by his death, and that his suit could be “prosecuted” by his administratrix “as fully as such decedent might have done if he had lived.”

The second question involved as stated by the appellant is, “Can plaintiff recover on proof of negligence not alleged in her statement filed?” The defendant contends that the testimony adduced was not sufficient to support the averment in the statement describing the occurrence which brought the injuries upon the plaintiff, Mary Smith. The testimony was sufficient, if believed, to justify the jury in finding that a defective condition of the defendant’s tracks, which had existed for a sufficient length of time to put it on notice, caused one of its cars to become derailed and run into the frame dwelling house occupied by the plaintiff, thereby throwing Mrs. Smith to the floor' and producing the ’injuries of which she complained. Under these circumstances we cannot say that the allegata and probata did not agree, or that there was not sufficient evidence to sustain the verdict, if the jury saw fit to accept the testimony of the plaintiff and her witnesses.

The first, second, third and sixth assignments which cover all of the matters comprehended in or suggested by the statement of the questions involved, are overruled; the other assignments which complain of instructions and rulings unrelated to these matters and in no way suggested by the statement of the question involved, are dismissed: Willock v. Railroad Co., 229 Pa. 526. If the appellant desired the points covered by these latter assignments reviewed, it would have been sufficient, after stating the main questions for determination, had counsel added a few words to this effect, “Correctness of instructions as to the effect of nonproduction of certain testimony, and concerning the condition and conduct of plaintiff after accident; rulings on admission and rejection of testimony.” If those instructions and rulings were necessarily involved in or suggested by the principal questions stated, then this course would not be required, or desired. While we do not specifically pass upon the assignments in question, we will say that we are not convinced that the court below fell into any reversible error.

The judgment is affirmed.


text:
    The Russell & Company v. Boody, Appellant.

      Sales — Personal property — Necessity for delivery — Written agreement of sale.

    In an action to recover on two promissory notes given by the defendant to the plaintiff in payment for a traction engine, wherein the defense is a failure of delivery, judgment is properly directed for the plaintiff where it appears that the engine belonged to the plaintiff and was in the possession of a lessee with power to purchase, that the lessee became financially involved and was in default in the payment of rent to the plaintiff, that he sold to the defendant all of his personal property and arranged with him for the transfer of the engine subject to the plaintiff’s right thereto, that an agreement was signed by the defendant and lessee and sent-to the plaintiff for acceptance, which provided, after a recital of the lease, the lessee’s inability to pay and that an arrangement had been made with the defendant to transfer the engine to him, that the defendant should “take possession of and purchase the said engine with attachments and fixtures as above described, taking the same where it is and as it is,” and give the plaintiff his notes in payment, and that, though there was no formal approval of the agreement by the plaintiff, the plaintiff had accepted defendant’s notes given in accordance therewith. Under such a written agreement of sale actual delivery of the engine was not necessary.
    Argued April 12, 1911.
    Appeal, No. 377, Jan. T., 1911, by defendant, from judgment of C. P. Columbia Co., Dec. T., 1907, Nos. 102 and 103, on verdict for plaintiff in case of The Russell & Company v. L. H. Boody.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Feigned issue to determine validity of judgment entered on promissory notes. Before Evans, P. J.
    The opinion of the Supreme Court states the case,

      Verdict for plaintiff by direction of the court for $2,163.60 and judgment thereon. Defendant appealed.

      Error assigned among others was in directing verdict for plaintiff.

      Fred Ikeler, for the appellant.

      Grant Herring, with him Clinton Herring, for appellee.
    July 6, 1911:
   Per Curiam,

This action was on two notes given by the defendant, L. H. Boody, to the plaintiff in payment for a traction engine. The defense was a failure of delivery. The engine belonged to the plaintiff and was in the possession of W. H. Stetler, the lessee, with the right to purchase. Stetler became financially involved and was in default in the payment of rent to the plaintiff. He sold to the defendant all of his personal' property and arranged with him for the transfer of the engine, subject to the plaintiff’s right thereto. The overwhelming weight of the testimony was that the defendant received possession of the engine, placed his engineer in charge of it, used it in his business, and exercised all the acts of complete ownership in relation to it. This branch of the case and the rulings of the trial judge in relation to questions arising out of it need not be considered as we are of opinion that under the written agreement of sale actual delivery was not essential.

This agreement was signed by the defendant and Stetler and sent to the plaintiff for its acceptance. It provided, after a recital of the lease to Stetler, his inability to pay and that an arrangement had been made with the defendant to transfer the engine to him, that the defendant should “take possession of and purchase the said engine with attachments and fixtures as above described, taking the same where it is and as it is” and give the plaintiff his notes in payment. There was no formal approval of this agreement by the plaintiff but by its acceptance of the defendant’s notes it consented to the arrangement he had made with Stetler and gave up to him all its right and title to the engine. There was nothing more for the plaintiff to do. It had parted with its title on the faith of the arrangement the defendant had declared that he had made with Stetler. It follows that it was not error to direct a verdict for the plaintiff.

The judgment is affirmed.


author: Mr. Justice Moschzisker,

text:
    First National Bank, Appellant, v. Gerli.

      Banks and banking — Promissory notes — Discount—Action against payee indorser — Note made by cashier of discounting bank.

    1. When an ordinary person presents for discount, before maturity, a note made by himself and indorsed by the payee, the bank has the right to rely upon the presumption that he is the owner of the paper and that the payee is an accommodation indorser, and it may. pay the money to the party in possession of the note, or credit it to his account with safety. But where a cashier of a bank presents such paper to his own institution for discount, and the payee and indorser is a depositor of the bank who has been in the habit of doing business with it, the possession of the note by the cashier raises no presumption that he is the owner of the paper; on the contrary the presumption is that it has been handed to him for the purpose of discount for the depositor’s credit.
    2. In an action by a bank on a promissory note against the payee as indorser, judgment is properly entered for the defendant where it ab-pears that the note was made by the cashier of the plaintiff bank to another, and indorsed by the defendant payee, that it was presented by the cashier to the bank for discount, before maturity, that the payee indorser was a depositor of the bank who' had been in the habit of doing business with it; that the indorser payee never received any value for the note from the bank and that the bank knowingly credited the entire proceeds of the paper to the personal account of its cashier.
    Argued April 12, 1911.
    Appeal, No. 6, Jan. T., 1911, by plaintiff, from judgment of C. P. Columbia Co., Dec. T., 1908, No. 34, for defendant non obstante veredicto in case of First National Bank of Bloomsburg v. Emanuel Gerli, administrator e. t. a. of the Estate of Joseph Ratti, deceased.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover on a promissory note. Before McClure, P. J., specially presiding.
    The plaintiff averred in its statement of claim “that E. F. Carpenter on August 7, 1906 .... made and delivered to Joseph Ratti, now deceased, .... his promissory note, whereof the following is a copy: ‘No. 7531, Bloomsburg, Pa., Aug. 7, 1906. Four months after date I promise to pay to the order of Joseph Ratti, $5,000, five thousand dollars, at the First National Bank of Blooms-burg, Pa. Due December 7, 1906. Without defalcation for value received. ■ (Signed) E. F. Carpenter.....;’ that said Joseph Ratti on August 8,1906, .... endorsed and delivered said note to the plaintiff, .... and that the said bank thereupon took' and now holds the said note in due course, for value received; that when said note became due . . . ., said note was duly presented for payment . . . ., but that neither said E. F. Carpenter, nor any person or persons on his behalf did or would .... pay the said sum of money . . . .; that said Joseph Ratti .... had waived notice . . . .; by means whereof the said Joseph Ratti then and there became liable . . .
    The testimony produced by the plaintiff, as to the circumstances surrounding the discount of the note, showed that the name indorsed on the back of the paper was the signature of Joseph Ratti. The teller of the plaintiff bank testified, “Q. By.whom and when was this note presented to the First National Bank for discount? A. By Mr. Carpenter: Q. Can you tell me the date when it was brought into the bank by Mr. Carpenter for discount? A. On August 7, 1906. Q. Who discounted the paper? A. I discounted the paper. Q. That is part of your duties? A. Yes, sir. Q. In what capacity did Mr. Carpenter bring this note in for discount? I mean whether as an individual or as an officer of the bank? A. It was handed to me by Mr. Carpenter, individual, to place in my drawer for the purpose of discounting. Q. The E. F. Carpenter who was cashier of the bank is the same party whose signature appears attached to the note . . . . ? A. Yes, sir. Q. As cashier of the bank Carpenter was your superior officer? A. He was. Q. In connection with that part of the work that you did, as I believe you stated discount clerk, you were also subject to the order and direction of Mr. Carpenter, the cashier? A. I was. Q. You have testified that on the August 7, 1906, Mr. Carpenter presented to you this note for discount and that he presented it to you in his individual capacity. How do you know that? A. That would be hard to separate the two, whether he so specified at that time, I have no recollection. He handed it to me for his individual credit. Q. It was credted to his individual credit by his direction? A. Yes, sir. Q. In other words you acted pursuant to his instructions in discounting this note? A. Yes, sir. Q. As a matter of fact .... Carpenter, the cashier of the bank at that time had charge of this transaction and directed what should be done about it? A. As cashier of the bank.” Testimony given by Mr. Carpenter, the maker of the note, at a prior trial, was introduced by the defendant, and showed," Q. Who did discount this paper for the First National Bank? Who had charge of that transaction? A. I did. Q. In your official capacity as cashier of that bank? A. Yes, sir.” The following admission appears upon the record: "It is admitted by all parties that the proceeds of the note in suit ..... were, on the date of its discount, placed to the credit of E. F. Carpenter in the First National Bank .... and that no part of it was credited to Joseph Ratti. It is also agreed that such entry of credit was made in the usual form and in the regular course of the business of the bank .... This agreement, however, not in any way to prejudice or deprive the defendant of the right of denying or questioning the right or authority or propriety of the bank to make such application of the proceeds.”
    The defendant presented the following points: “1. It appearing from the testimony in this case that the note sued on was the promise of E. F. Carpenter to pay to Joseph Ratti, or order, the sum of $5,000, for value received; that the said note was indorsed by Ratti and discounted by the authority and under the direction of E. F. Carpenter, the then cashier of the plaintiff bank, the presumption would be that when the note was discounted it was for the benefit of Ratti, and that the proceeds ought to have gone to his credit. 2. It appearing from the testimony in this case that Carpenter, the maker of the note in question, as cashier of the plaintiff bank had charge of the discount of said note and directed that the proceeds thereof be placed to his individual credit, which proceeds on the face of the note he ought not to have received, there can be no recovery by the plaintiff in this case. 3. The note in question being on its face an absolute promise by Carpenter to pay Ratti or order $5,000 for value received; and plaintiff admitting that the proceeds of the note were not paid to or credited to Ratti, but that the proceeds were credited by the plaintiff bank to Carpenter, the maker thereof, and there being no testimony on the part of the plaintiff to show that Ratti’s indorsement of said note was for Carpenter’s accommodation, there can be no' recovery by plaintiff in this case, and the verdict must be for the defendant. 4. Under all the evidence in this case the verdict of the jury must be for the defendant.”
    The trial judge directed a verdict for the plaintiff saying, “'We think we will take the verdict and reserve a point, whether or not the plaintiff is entitled to recover. We will refuse the first three points of the defendant and reserve the last.” Subsequently the court below filed an opinion in which it decided, “The defendant’s points should have been affirmed and a verdict directed for the defendant.” Judgment non obstante veredicto was entered - accordingly. Plaintiff appealed.

      Error assigned was in entering judgment n. o. v. in favor of the defendant.

      Fred Ikeler, with him Clinton Herring, for appellant.—
    The fact that the maker of an indorsed note has it in his possession, is not notice of its payment or extinguishment to one who buys it before maturity, but in itself raised a presumption that the note was for the accommodation of the maker: Eckert v. Cameron, 43 Pa. 120; Mishler v. Reed, 76 Pa. 76; Connelly v. McKean, 64 Pa. 113; Helzer v. Helzer, 193 Pa. 217; Mass. Nat. Bank v. Snow, 187 Mass. 159 (72 N. E. Repr. 959).
    Although Carpenter got the note as cashier, to have it discounted for the credit of Ratti, and wrongfully diverted its use; nevertheless, the bank would not be charged with notice of that fact: Gunster v. Heat & Power Co., 181 Pa. 327; Innerarity v. Merchants’ Nat. Bank, 139 Mass. 332 (1 N. E. Repr. 282); United Security Life Ins. & Trust Co. v. Central Nat. Bank, 185 Pa. 586; Sproul v. Glass Co., 201 Pa. 103; Chestnut St. Trust & Sav. Fund Co. v. Record Pub. Co., 227 Pa. 235.

      John G. Harman, with him Richard E. Dwight, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Moschzisker,

When this case was here before (225 Pa. 256), we said, “From the note itself it is clear that Ratti’s indorsement was not for the accommodation of Carpenter. . . . The instrument, without parol testimony to vary it, is an absolute promise of Carpenter to pay Ratti $5,000 for value received. At the time .... Ratti delivered the note to him Carpenter was the cashier of the bank, and the presumption would be that when the note was discounted it was for the benefit of Ratti, and that the proceeds ought to have gone to his credit.” It is now urged upon us that this conclusion of law should be reversed, for the reason that the proper legal presumption would be that Carpenter was the owner of the note and that Ratti was an accommodation indorser; and the appellant further contends that if this view is not taken, then, in the absence of evidence to show that the bank had actual notice of the fact that Carpenter was not the owner of the note, it should not be held liable for his wrongful diversion of the proceeds.

After a consideration of all the authorities called to our attention, the negotiable instrument Act of May 16, 1901, P. L. 194, and the rules of the law merchant, we discover nothing that requires a reversal of the view taken by this court upon the former appeal; in fact we find no written authority bearing directly upon the state of facts before- us, either upholding or denying the rule of presumption then announced.

It is for the courts not only to administer the written law, but to ascertain and apply the underlying principles of right and justice to conditions not expressly provided for when they appear. None of the cases cited by the appellant in support of the rule, that when a maker presents an indorsed note for discount it is to be presumed that the payee is an accommodation indorser, and that the maker has possession of the note with power to receive the proceeds (Parke v. Smith, 4 W. & S. 287; Eckert v. Cameron, 43 Pa. 120; Mullison’s Est., 68 Pa. 212; Mishler v. Reed, 76 Pa. 76; Connelly v. McKean, 64 Pa. 113; Helzer v. Helzer, 193 Pa. 217; Mass. Nat. Bank v. Snow, 187 Mass. 159), is an instance where the maker was the cashier and superior discount officer of the discounting bank, and where the payee and indorser was a depositor of the institution who would naturally present paper to ■such cashier in his official capacity for the purpose of discount; for that reason .the general rule announced in these cases has no application to the facts at bar.

If the mere possession of commercial paper by one who is cashier of a discounting bank would justify the application of the rule that, “where the instrument is no longer in possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed,” so that paper thus found would be presumed to belong to such a holder in his individual capacity, every man dealing with a banking institution would be obliged actually to take the currency from the bank, instead of having it credited on his account, for fear the cashier would make away with the proceeds of paper handed to him for discount. A rule of law which would admit of the possibility of such a situation, would be impracticable, intolerable and contrary to the dictates of right and justice; further, it would afford no adequate protection to the mercantile world, and such security is the guiding thought back of all the principles governing the rules.applicable to commercial paper. The provisions of the negotiable instrument act were never intended to be so applied.

When an ordinary person presents for discount, before maturity, a note made by himself and indorsed by the payee, the bank has the right to rely upon the presumption that he is the owner of the paper and that the payee is an accommodation indorser, and it may pay the money to the party in possession of the note, or credit it to his account with safety. But where a cashier of a bank presents such paper to his own institution for discount, and the payee and indorser is a depositor of the bank who has been in the habit of doing business with it, the possession of the note by the cashier raises no presumption that he is the owner of the paper; on the contrary the presumption is that it has been handed to him for the purpose of discount for the depositor’s credit. Such was the rule laid down on the previous appeal in this case, and there was no competent evidence produced at the trial under review sufficient to overcome this presumption.

It was admitted that Ratti never received any value for the note from the plaintiff bank, and that the bank knowingly credited the entire proceeds of the paper to the personal account of its cashier. Under the circumstances disclosed by the record, neither Chestnut St. Trust & Sav. Fund Co. v. Record Publishing Co., 227 Pa. 235, nor Gunster v. Heat & Power Co., 181 Pa. 327, governs the facts at bar. In these cases there was nothing on the face of the transaction to suggest scrutiny, and if an investigation had been made, ample apparent power to issue the paper and to receive or control the proceeds would have been found vested in the party who perpetrated the fraud; while here, under the law as we have ruled it, the note bore evidence that it belonged to the payee and indorser, and had the bank inquired it might have discovered that its cashier had no power to direct a diversion of the proceeds to his own credit. No more does United Security Life Ins. & Trust Co. v. Bank, 185 Pa. 586, control the present case; there we expressly said, “Of course it is to be noted that this is not the case of an act done by an agent authorized, or apparently held out to the world as authorized, to do it, such as the illustration in the argument of the appellee of the receipt of a depositor’s money by the receiving teller of a bank. There the act being within his authority is the act of the bank which would therefore be responsible though the teller subsequently embezzled the money.” None of the cases cited by the appellant rules the present one; on the facts in this case, the loss, if any, must fall upon the plaintiff bank and not upon the defendant’s estate.

Since the court below entered judgment in favor of the defendant, the question of the competency of Carpenter as a witness, to show that Ratti had waived notice of nonpayment, is not properly before us and will not be passed upon.

The assignment of error is overruled, and the judgment is affirmed.


text:
    Fetterolf v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Grade crossing — “Stop, look and listen”— Proper place to stop — Negative and positive testimony as to signals.

    1. In an action against a railroad to recover damages for personal injuries the case is for the jury where plaintiffs’ testimony tends to show that they were riding in a huckster wagon, drawn by two horses, and approached a grade crossing on defendant’s railroad where there were two trades, that the track nearest them was a siding on which two trains were standing that obscured the view; that when the plaintiffs were about 400 feet from the crossing they looked and listened for a train and continued to look and listen as they advanced, that they stopped their team at the edge of the siding with the horses’ heads over the first rail, from which point they could see 270 feet in the direction from which the train that struck them came, and leaned forward and looked and listened for a train; and that, as they drove on, their wagon was struck about the middle by an engine running fifty miles an hour, of the approach of which no signal of any kind was given.
    2. In such a case, the question of defendant’s negligence requires submission to the jury where the testimony in relation to the failure to give any signal of the approach of the train, while flatly contradicted by a number of defendant’s witnesses, is not negative merely, by persons who had no occasion to observe, but of a positive character by witnesses who were listening.
    Argued April 13, 1911.
    Appeal, No. 51, Jan. T., 1911, by defendant, from judgment of C. P. Columbia Co., Sept. T., 1909, No. 175, on verdict for plaintiffs in case of Daniel B. Fetterolf and Esther B. Fetterolf, his wife, v. Pennsylvania Railroad Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Evans, P. J.
    The facts appear in the opinion of the Supreme Court.
    Verdict for Daniel B. Fetterolf for $1,000 and for his wife for $3,000, and judgment thereon. Defendant appealed.

      Errors assigned among others were in refusing binding instructions for defendant and refusal of judgment n. o. v.

      H. M. Hinckley, with him L. E. Waller, for appellant.

      Clinton Herring and Fred Ikeler, with them Grant Herring, for appellees.
    July 6, 1911:
   Per Curiam,

The assignments of error all relate to the refusal of the court to direct a verdict for the defendant or to enter judgment for it non obstante veredicto. The facts developed by the plaintiffs’ testimony as far as they are essential in considering the questions raised are as follows: The plaintiffs were riding in a huckster wagon, drawn by two horses and approached from the north a grade crossing where there were two tracks. The track nearer them was a long siding on which were two trains awaiting the passing of a special passenger train that was coming from the east. One of the standing trains was a long freight train composed of high box and coke cars, the other was a passenger train, the last car of which was forty feet east of the crossing. These cars shut off, from a person north of the crossing and within 40Ó feet of it, any view of a west bound train on the main track, except a few inches of the top of the smokestack of the engine, from a point forty feet east of the crossing to a point 1,900 feet east. When the plaintiffs were about 400 feet from the crossing, they looked and listened for a train and they continued to look and listen as they advanced. They stopped their team at the edge of the siding with their horses’ heads over the first rail, from which point they could see 270 feet east, and leaned forward over the dashboard of their wagon and looked and listened for a train. As they drove on, their wagon was struck about the middle by an engine running fifty miles an hour, of the approach of which no signal of any kind was given. From the space between the siding and the main track, about seven feet in width, there was an unobstructed view east for 1,900 feet.

The testimony in relation to the failure to give any signal of the approach of the train, while flatly contradicted by a number of the defendant’s witnesses, was not negative merely, by persons who had no occasion to observe, but of a positive character by witnesses who were listening, and clearly required the submission of the question of the defendant’s negligence to the jury. Whether there was a failure of duty by the driver was also for the jury. He did not act heedlessly but with care in approaching the crossing and he stopped as close to the track as was possible without placing himself in danger. While his view of the main track was limited there was nothing to interfere with his hearing an approaching train. Whether under the circumstances, he should have done more was not a question for the court: Barthelmas v. Railroad Co., 225 Pa. 597.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Leitzell v. The Delaware, Lackawanna & Western Railroad Company, Appellant.

      Negligence — Measure of damages — Cure by simple operation — Points for charge.

    1. In an action to recover damages for personal injuries evidence as to the probability of a cure of an otherwise permanent injury by means of a simple surgical operation is not to be received in mitigation of damages but as a proper method of showing the actual damages sustained.
    2. In an action to recover damages for personal injuries, where the plaintiff alleged a permanent injury to his knee, and the defendant introduced evidence tending to show that the injury could be cured by a surgical operation to which a reasonably prudent man ought to submit, it, was held that the court should have affirmed without qualification a point for defendant reading, “If the jury believe that the condition of the plaintiff can be relieved by a simple surgical operation which an ordinarily prudent man would undergo, such fact must be taken into consideration as an element which would reduce the amount of damages to which the plaintiff would otherwise be entitled,” and that it was error for the court to answer the point by saying, “The point is affirmed, providing the jury find that the proposed surgical operation is not a serious or dangerous one, and one that can be performed without any risk of failure or danger to the plaintiff. Otherwise, it is refused.”
    Argued April 13, 1911.
    Appeal, No. 60, Jan. T., 1911, by defendant, from judgment of C. P. Columbia Co., Dec. T., 1909, No. 86, on verdict for plaintiff in case of Melvin A. Leitzell v. The Delaware, Lackawanna & Western Railroad Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass for personal injuries. Before Evans, P. J.
    Plaintiff was injured on August 26, 1909, while working as a brakeman on a freight train of the defendant railroad through the breaking of a board cover on a sluiceway crossing under the tracks.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $7,000 and judgment thereon. Defendant appealed.

      Errors assigned were various rulings of the court on points for charge, including the point quoted in the opinion of the Supreme Court.

      J. H. Oliver and H. M. Hinckley, with them A. C. Jackson and D. R. Reese, for appellant.
    — The plaintiff in this case cannot recover for permanent injuries when the undisputed evidence is that he would in all probability be entirely cured by a simple surgical operation, and that the only risks in connection with such operation are the usual incidental risks present at every operation: Mattis v. Traction Co., 6 Pa. Dist. Rep. 94; Bailey v. Centerville, 108 Iowa, 20 (78 N. W. Repr. 831).

      Fred Ikeler, with him Clinton Herring, for appellee.—
    The court properly submitted the character of the operation required and its probable results, to the jury: Kehoe v. Traction Co., 187 Pa. 474; Bailey v. Centerville, 108 Iowa, 10 (78 N. W. Repr. 831).

      July 6, 1911:
   Opinion by

Mr. Justice Potter,

The only question raised by this appeal is as to the basis upon which the damages for the injury sustained by the plaintiff should be computed. Evidence upon the part of the plaintiff was offered tending to show that the injury to his knee is permanent;- and that it will be so unless a surgical operation be performed, was practically conceded. Upon the part, of the defendant, there was evidence tending to show that the injury CQjffdJie.eured by a surgical operation, to which a reasonably prudent man ought to submit; and it was contended that by reason 1 of that fact, in estimating the amount of the damages,! the injury should not be regarded as necessarily permanent. ' The theory of the defendant in this respect was formulated in the third point for charge presented by counsel, as follows: “If the jury believe that the condition of the plaintiff can be relieved, by a simple surgical operation, which an ordinarily prudent man would undergo, such facts must be taken into consideration as an element which would reduce the amount of damages to which the plaintiff would otherwise be entitled.” The trial judge answered ] this point by saying, “The point is affirmed, providing the jury find that the proposed surgical operation is not a serious or dangerous one, and one that can be performed without any risk of failure or danger to the plaintiff. Otherwise, it is refused.” We think the point should have been]) affirmed without qualification. It referred to “a simple surgical operation, which an ordinarily prudent man should undergo.” ■ The answer ignored the feature as to what an ordinarily prudent man would do, and instructed the jury not to consider the matter unless they found that the proposed operation was not serious or dangerous, and could be performed without any risk of failure or danger to the plaintiff. This we think was going too far.' The plaintiff of course was entirely at liberty to refuse to submit to an operation, but if the effect of his refusal would be to retain permanently a condition which might be removed by a simple operation, which an ordinarily prudent man would, under the circumstances, undergo, that matter should certainly be taken into consideration by the jury, in estimating the damages. No compensation should be allowed for damages that might reasonably be averted. In Watson on Damages for Personal Injuries (1904), sec. 184, the rule is stated as follows: “It is the duty of an individual injured by the wrongful act of another to exercise reasonable judgment and prudence in securing medical or surgical aid, if the injuries are of a nature to render such treatment necessary or expedient. And there can be no recovery of any damages resulting from a failure to comply with this rule.”

Evidence as to the probability of a cure, by means of al simple operation is not to be received in mitigation of damages, but as a proper method of showing the actual damages sustained. If the plaintiff could be cured by an operation reasonably safe, and one which would commend itself to the judgment of a prudent man, the injury would certainly be less serious than one for which no hope of cure existed.

The trial judge relied upon the decision in Kehoe v. Traction Co., 187 Pa. 474, to sustain his ruling. But the points affirmed in that case related only to serious and critical operations, attended by risk of failure. They did not contemplate simple operations, which an ordinarily prudent man would undergo. That point does not seem' to have been squarely raised or decided in the case last mentioned. The real point made was whether the charge was inadequate and misleading upon the questions involved in the third and fourth specifications of error, and it was decided that the charge was neither inadequate nor misleading.

In the present case, we think the defendant’s third point presented a proper view of the law, and that it should have been affirmed without qualification.

The judgment is therefore reversed, with a venire facias de novo.


author: Me. Justice Mestrezat,

text:
    Walsh v. Altoona & Logan Valley Electric Railway Company, Appellant.

      Negligence — Street railways — Motorman inattentive — Plaintiff jumping from wagon under fear of collision — Contributory negligence — Imputed negligence — Test of negligence of passenger in a private conveyance.

    1. In an action to recover damages for personal injuries the case is for the jury where they could find from the evidence that the plaintiff was riding in a wagon, outside of and parallel to defendant’s tracks on a city street, that as the team approached the corner of an intersecting street, where the tracks made a short turn into the intersecting street, and where the view at the intersecting street was obstructed by houses, and attempted to cross the tracks, a car came around the curve without sounding any signal and struck the wagon; that the motorman of the car was looking across the street instead of along the track as the car turned the curve and was not aware that the team was crossing until the conductor rang the bell at the suggestion of a passenger on the rear platform; and that the plaintiff, seeing the car coming and fearing a collision, jumped from the wagon and seriously injured her ankle.
    2. If, in such a case, the plaintiff, without her fault, was placed in danger of a collision between the wagon and the car by the negligence of the defendant company and she had a well grounded fear that the collision would result in serious injury to her, she, if acting in good faith and as a person of ordinary prudence, was not guilty of negligence in leaping from the wagon to escape the threatened danger, although it was not the safest or wisest course to pursue.
    3. In such a case, where it appears that the plaintiff was the guest of her father and that the team was driven by her brother who was not her servant or under her control, the negligence of the driver of the wagon, if any, cannot be imputed to her.
    4. The test of plaintiff’s contributory negligence, in such a case, is whether she joined in testing a patent danger or violated a fixed rule of law. Where in such a case, the evidence tends to show that plaintiff’s brother was a careful and competent driver and that there was no obvious or imminent danger in a passenger permitting a capable driver to make the crossing, the questions as to whether the circumstances under which the accident occurred required the plaintiff to act differently and whether she was negligent in permitting the driver of the vehicle to attempt the crossing, are for the jury.

      Negligence — Damages—Improper calculation by a trial judge — Harmless error.

    5. An improper calculation or statement by the trial judge as to the measure of damages is no ground for reversing a judgment in an accident case, where the amount of the verdict shows that the defendant was not injured by the remarks of the judge.
    Argued April 17,1911.
    Appeal, No. 197, Jan. T., 1910, by defendant, from judgment of C. P. Blair Co., March T., 1910, No. 517, on verdict for plaintiff in case of Mary A. Walsh v. Altoona & Logan Valley Electric Railway Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bell, P. J.
    On July 4, 1906, P. J. Walsh, a resident of Tyrone, Blair county, with his family, consisting of himself, his wife, four sons and four daughters, spent the day driving in a wagon containing four seats and drawn by two horses. The front seat was occupied by the father, a little daughter, and a son, aged fifteen and a half years, who was driving. The second seat was occupied by the mother and another daughter. The third seat was occupied by the plaintiff aged twenty-three years, her brother aged twenty-five and a sister aged eleven. The fourth seat was occupied by two brothers. They spent the day in the country and upon returning home in the evening, between seven and eight o’clock, crossed Washington avenue, in Tyrone, and drove up Tenth street parallel with the defendant company’s car track toward Lincoln avenue, which was just a square above, keeping on the right-hand side. The track makes a short curve at the corner of Tenth street and runs out Lincoln avenue to East Tyrone. When the team attempted to cross this sharp curve, a car came around the corner. Whether the car struck the wagon or stopped before getting to the wagon was in dispute. Plaintiff, Mary A. Walsh, seeing the car coming jumped out of the wagon and injured her ankle.
    The court charged in part as follows:
    Possibly, I would not take a thousand dollars to endure toothache for a week, but at the same time if the dentist injured my tooth so that I had toothache for a week it would not be fair and right unless he did it willfully, to impose $1,000 damage on that dentist. Then she would , be entitled, if the injury was permanent, to damages for permanent inconvenience and permanent pain and suffering. If the testimony shows that she will endure pain and suffering for the injury, and if you come to this question of permanent injury it would be your duty to be conservative in the matter.
    To illustrate my thought: Suppose that I was on the jury and I concluded that the plaintiff should be entitled to $100 a year, the most natural thought that would come to my mind would be that in order to give the / plaintiff $100 a year I should render a verdict of $1,700,
    . because if you make a calculation, you will discover that $1,700 if invested will produce about $100 a year, but that is not the basis to go on in determining the amount . to be given for permanent injury, because this lady will die sometime and then there is no reason why there should be anything left for her parents or her heirs. And another calculation will convince you, if you will make it, that if you desire to give a party $100 a year for say eleven years, we should give her $1,000, because if you will make that calculation, and I went to a little trouble to make it while the attorneys were arguing the case, you will find that counting the interest, $1,000 will produce about $100 for the eleven years. To illustrate the thought: The first year there would be the $1,000 and $60 interest, that would make $1,060; then subtract that $100 from the $1,060, you will have left as principal $960, then the interest on that for the next year will be $55.70, making $1,011.70, and if you will follow that same principle out you will find that $1,000 invested, the interest used as an annuity as given, it will exhaust itself in the course of some twelve years; I have not made the calculation éxactly, .but it is about twelve years that it will exhaust itself. [2]

      Verdict and judgment for plaintiff for $3,687. Defendant appealed.

      Errors assigned were various instructions including the portion of charge quoted above.

      Thomas H. Greevy, with him E. G. Brotherlin, for appellant.
    — A charge suggesting capitalization of the plaintiff’s earnings and that a sum be given which will support him from year to year is erroneous, although the suggestion is only by way of illustration: Gregory v. N. Y., etc., R. R. Co., 55 Hun (N. Y.), 303; Benson v. Ry. Co., 228 Pa. 290.
    Plaintiff admitted the extremely dangerous character of the crossing. After such admission it was her bounden duty to stop, look and listen, particularly, in view of the fact that her sight was obstructed by a building at the corner. She did not take this precaution and was guilty of contributory negligence: Trout v. Ry. Co., 13 Pa. Superior Ct. 17; Haas v. Ry. Co., 202 Pa. 145; Potter v. Ry. Co., 19 Pa. Superior Ct. 444; Timler v. Rapid Transit Co., 214 Pa. 475; Omslaer v. Traction Co., 168 Pa. 519; Smathers v. Ry. Co., 226 Pa. 212; Talley v. Traction Co., 227 Pa. 393.
    The negligence, if any, of the driver of a private conveyance is imputable to a companion riding with him and injured by being thrown out in consequence of a defect or obstruction in the highway, which caused the horses to bolt and run away: Olson v. Luck, 103 Wis. 33 (79 N. W. Repr. 29), 8 L. R. A., (N. S.) 641, note; Lake Shore & Mich. So. R. R. Co. v. Miller, 25 Mich. 274.
    Plaintiff was guilty of contributory negligence: Crescent Twp. v. Anderson, 114 Pa. 643; Dean v. R. R. Co., 129 Pa. 514; Carr v. Easton, 142 Pa. 139; Dryden v. R. R. Co., 211 Pa. 620: Kunkle v. Lancaster County, 219 Pa. 52.

      A. V. Dively, of Dively & Dively, for appellee,
    cited as to injury to occupant of a carriage who has no control over the driver: Carlisle Boro. v. Brisbane, 113 Pa., 544; Little v. Telegraph Co., 213 Pa. 229; Sluder v. Transit Co., 4 St. Ry. Rep. 581; Hanson v. St. Ry. Co., 4 St. Ry. Rep. 685; United Rys. & Elec. Co. v. Biedler, 2 St. Ry. Rep. 391; Hot Springs St. Ry. Co. v. Hildreth, 3 St. Ry. Rep. 23; Geary v. Ry. Co., 1 St. Ry. Rep. 581; Indianapolis St. Ry. Co. v. Johnson, 3 St. Ry. Rep. 173; Sullivan v. Ry. Co., 3 St. Ry. Rep. 390; Denver City Tramway Co. v. Norton, 4 St. Ry. Rep. 83.
    Cited as to negligence of the defendant company: Searles v. Ry. Co., 2 St. Ry. Rep. 706; Richmond Pass. & Power Co. v. Gordon, 2 Ry. 937; Denver City Tramway Co. v. Martin, 6 St. Ry. Rep. 605; Bucklin v. Davidson, 155 Pa. 362; Rees v. Walton & Co., 204 Pa. 412; Heuber v. Traction Co., 210 Pa. 70.
    July 6, 1911:
   Opinion by

Me. Justice Mestrezat,

We have examined this case with care, and notwithstanding the thirty-two assignments of error filed by the appellant we discover no reversible error in the record. Eighteen of the assignments allege error in the answers to appellant’s request for instructions to the jury. These points were properly refused because they assumed as facts matters in dispute, or asked for binding instructions. Three assignments complained, without cause, of the learned judge’s charge which was more favorable to the appellant company than the facts warranted. Nine of the assignments allege error in the court’s answers to appellee’s requests for instructions to the jury, one of them complaining that the court refused appellee’s ninth point. Of the other two assignments, one alleges error in not withdrawing a juror, and the other in not entering judgment for the defendant non obstante veredicto.

The case was properly submitted to the jury in a charge of which the appellee had more reason to complain than the appellant. There was ample evidence to warrant the jury in finding that the motorman was negligent. The abrupt turn of the track as it entered Tenth street from Lincoln street required the motorman to keep a careful watch along the track in front of him, and to announce with the gong his approach to the crossing where the accident occurred. From the crossing the view of an approaching car on Lincoln street is obstructed by buildings, and the only notice of the approach of the car is the noise it creates or the signal given by the motorman. The driver of the wagon and his father both testified that they listened but heard no gong. Several other witnesses testified that they were in a position to hear and that the gong was not sounded. In addition to this failure of duty on the part of the motorman, there was testimony which justified the jury in finding that at the time the car was turning on the curve into Tenth street, the motorman was looking directly across that street instead of along the track which was to his left, that passengers on the car saw the team before he did, and that he was not aware that the team was crossing until the conductor rang the bell at the suggestion of a passenger on the rear platform when it was too late to avoid the collision. The verdict shows that the jury believed this testimony, and therefore the motorman was properly convicted of negligence for which the defendant company was responsible.

The appellee was the guest of her father and the team was driven by her brother who was not her servant or under her control. Under these facts negligence of the driver of the wagon, if any, cannot be imputed to the appellee: Jones v. Lehigh & New England R. R. Co., 202 Pa. 81; Little v. Telegraph Co., 213 Pa. 229.

Whether the appellee exercised the care of a prudent person in permitting the driver to attempt the crossing under the circumstances was for the jury and not for the court. The test of the appellee’s contributory negligence is, under our cases, whether she joined in testing a patent danger or violated a fixed rule of law. Her brother, as was clearly established by the testimony, had knowledge of horses from his earliest years, and was a careful and' competent driver. There is no testimony to show that the horses were unruly or were not gentle. The crossing was not in itself dangerous and was only made so by the approach of an unexpected or unheralded car running not • oftener than every twenty minutes. This fact did not prohibit the public from using it or render a party guilty per se of negligence in attempting to use it. It is equally true that the public used the right-hand side of the street when traveling in that direction, and the driver testifies that, on the occasion of the accident, he had to use the right side of the street because there was a wagon on the other side approaching from the opposite direction, and he turned to cross the street car track as soon as the wagon had passed. With proper care on the part of the driver and motorman, a team could pass the crossing with perfect safety. There was testimony to warrant the finding that the driver and his father looked and listened before starting across. The testimony did not show that the car was visible to or heard by the appellee or any other occupant of the wagon when the crossing was attempted. There was no obvious or imminent danger in a passenger permitting a capable driver to make the crossing, and hence whether the circumstances under which the accident occurred required the appellee to act differently from what she did and whether she was negligent in permitting the driver of the vehicle to attempt the crossing were questions for the jury. In Carr v. Easton City, 142 Pa. 139, the guest of the driver and owner of a sleigh brought an action to recover damages for injuries sustained by being thrown from the vehicle. The following remark in the opinion, with appropriate changes as to the driver and vehicle, is applicable here: “She was a woman, not shown to have any special knowledge of driving or horses or sleighs, who had trusted herself to the guidance of her brother-in-law and his friend; and we cannot say, as matter of law, that the danger was so apparent or so serious that she was called upon to exercise her own judgment in opposition to theirs. All these matters are for the jury to decide, upon their view of reasonable care and prudent conduct, under the circumstances shown by the evidence.”

Whether the appellee was guilty of negligence in leaping from the wagon under the circumstances was likewise for the jury. She certainly had reason to believe that a collision between the car and wagon was imminent and that it might result in serious consequences to her. While the appellant company contends, and its testimony supports the contention, that the car did not strike the wagon, there was evidence on the part of the appellee which, if believed, warranted the conclusion that there was a collision. If the appellee, without her fault, was placed in danger of a collision between the wagon and the car by the negligence of the defendant company and she had a well-grounded fear that the collision would result in serious injury to her, she, if acting in good faith and as a person of ordinary prudence, was not guilty of negligence in leaping from the wagon to escape the threatened danger, although it was not the safest or wisest course to pursue. Whether the facts existed which warranted her in attempting to thus avert the threatened danger was for the jury under the evidence submitted.

We are not convinced that the errors complained of in the second and tenth assignments did the defendant any harm. The amount of the verdict shows that the appellant was not injured by the illustration given by the learned judge in his charge as to the proper manner of estimating the damages. We do not approve of the language used by him in submitting the case on the question of damages and complained of in the second assignment, but it is apparent that it worked no injury to the appellant in this case, and, therefore, the assignment is not sustained.

The judgment is affirmed.


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    Moudy, Appellant, v. Bell et al.

      Landlord and tenant — Mortgages—Purchaser at sheriff’s sale — Dispossession — Trespass—Personal property on premises — Trover and conversion.

    1. The purchaser of real estate at a sheriff’s sale, who peaceably obtains possession of the premises, is not liable in trespass to a lessee of the premises where the lease was subject to the mortgage upon which the property was sold.
    2. In such case there is no conversion of personal property belonging to the lessee and remaining on the premises where there is no demand for such personal property by the lessee or a refusal by the purchaser to turn it over.
    Argued April 18, 1911.
    Appeal, No. 249, Jan. T., 1910, by plaintiff, from judgment of C. P. Huntingdon Co., Sept. T., 1909, No. 10, on verdict for defendant in case of Orlena Moudy v. W. T. Bell, Allen S. Welch, Samuel Cremer, W. I. Stratford and Frank Keil.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to real property and conversion of personalty. Before Savidge, P. J.
    On January 11, 1906, Orlena Moudy entered into a written lease with the William H. Moudy Manufacturing Company of a certain chair factory in the borough of Mount Union, known as the Moudy Chair Company’s plant, or the DeFrehn Chair Company. By its terms she was to pay a rental of $600 per year. At the time this property was rented to her it was subject to a mortgage given February 11,1893, by the DeFrehn Chair Company, a prior owner, to William McMurtrie Spear and Robert E. Speer, in the amount of $12,000. When the property was purchased by the William H. Moudy Manufacturing Company, the mortgage was still $12,000, with interest. This amount was reduced until in April, 1908, it was $7,500. By an agreement between the William H. Moudy Manufacturing Company, and W. T. Bell, A. S. Welch and others, who were the guarantors of the mortgage, it was to be paid at the rate of $500 a year with interest on the amount remaining unpaid. On April 12, 1909, a payment of $500 became due. Mr. Moudy was unable to make this payment. On April 15,1909, a levari facias was issued and the property was sold on May 14, 1909, to A. S. Welch. On the evening of the day of the sheriff’s sale, A. S. Welch, W. T. Bell and others went to the factory and took possession, placing locks and installing watchmen.
    Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.'

      Error assigned among others was in directing judgment for defendant.

      James S. Woods, with him W. H. Woods, J. W. Leech and Harvey Roland, for appellant.

      Thomas F. Bailey, with him W. M. Henderson, for appellee.
    July 6, 1911:
   Per Curiam,

With the delivery of the sheriff’s deed to Allen S. Welch, one of the appellees, there passed to him and to those for whom he purchased the premises in controversy as trustee the right to their possession, for appellant’s lease was subject to the mortgage upon which the property was sold, and the appellees having obtained peaceable possession of it, no trespass was committed: Leidy v. Proctor, 97 Pa. 486. As to the alleged conversion by the appellees of personal property belonging to the appellant, the court correctly instructed the jury that, under the evidence, there had neither been any demand for the same nor refusal to turn it over. The verdict having been properly directed for the defendants, the judgment upon it is affirmed.


text:
    Rhodes’s Estate.

      Beal estate — Deeds—Conveyance to husband and wife — Estate by entireties.

    1. A tenancy by entireties is one held by husband and wife by virtue of title acquired by them jointly after marriage.
    2. Where a father, by deed executed and delivered, conveys certain premises therein described to his daughter, “and her husband,” naming them, and in the receipt the father acknowledges to have received of the daughter and her husband $6,000, of which $3,700 is stated as representing the daughter’s interest in the father’s 'estate, the daughter and her husband take an estate in entireties and, if she dies before him, the husband takes the premises in fee simple.

      Appeals — Assignments of error — Bequest for findings — Exceptions.
    3. Assignments of error complaining of various rulings of the orphans’ court upon alleged requests for findings of fact and conclusions of law will not be considered where the record fails to show that any such requests were submitted to the court, or that there were any rulings upon, them, or any exceptions to any rulings.
    Argued April 18, 1911.
    Appeal, No. 275, Jan. T., 1910, by David W. Smith/ Trustee, appointed to sell the real estate of Nancy Rhodes, deceased, from decree of O. C. Blair Co., 1907, No. 210, vacating the appointment of said trustee in Estates of Nancy Rhodes and Hugh D. Rhodes, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Petition to restrain trustee from selling an interest in real estate and to vacate appointment proceedings, assimilated to equity procedure under Act of May 19, 1874, P. L. 206. Before Baldrige, P. J.
    In addition to the facts stated in the opinion of the Supreme Court it appeared that Nancy Rhodes died intestate on January 12, 1901, and that Hugh D. Rhodes, her husband, died on March 1, 1907, leaving a will by which he bequeathed his estate to his next of kin. After the death of Hugh D. Rhodes, the next of kin of Nancy Rhodes petitioned the court for the appointment of a trustee to sell the interest of Nancy Rhodes in the lands in question. David W. Smith was thereupon appointed such trustee. Subsequently upon the application of the executors of Hugh D. Rhodes the court vacated the decree appointing the trustee, and decreed that the land in question belonged wholly to Hugh D. Rhodes at the time of his death.

      Error assigned among others was the decree of the court.

      W. I. Woodcock, for appellant.
    — That the conveyances in each case were a pro tanto advancement to each grantee, including Nancy Rhodes, his daughter, has been clearly ruled by our Supreme Court in Dutch’s Appeal, 57 Pa. 461; see also Miller’s App., 31 Pa. 337; Story’s App., 83 Pa. 89; Heft’s Est., 9 Kulp, 339.
    The doctrine of entireties does not apply: Barncord v. Kuhn, 36 Pa. 383; Trimble v. Reis, 37 Pa. 448; Bates v. Seely, 46 Pa. 248; Dexter v. Billings, 110 Pa. 135.

      J. Lee Plummer, for appellee.
    — Under a conveyance to husband and wife during coverture, both became seized of the entirety, and on the death of either, the whole estate goes to the survivor. Stuckey v. Keefe, 26 Pa. 397; Auman v. Auman, 21 Pa. 343; Bramberry’s Est., 156 Pa. 628; Gardner v. McLallen, 4 W. N. C. 435; Diver v. Diver, 56 Pa. 106; Fleek v. Zillhaver, 117 Pa. 213; Hetzel v. Lincoln, 216 Pa. 60; Heilig v. Heilig, 215 Pa. 256; Alies v. Lyon, 216 Pa. 604; Hoover v. Potter, 42 Pa. Superior Ct. 21; O’Donnell v. Powell, 53 Pitts. Legal Journal, 255; McCurdy v. Canning, 64 Pa. 39.
    July 6, 1911:
   Opinion by

Mr. Justice Potter,

Of twelve specifications of error filed by counsel for appellant, only one has any basis in the record. Eleven of the specifications complain of various rulings of the court below upon alleged requests for findings of fact and conclusions of law. But the record does not show that any such requests were submitted to the court, or that there were any rulings upon them, or any exceptions to any rulings. These specifications will not therefore be considered. The only exception shown on the record is to the final decree, and this is made the subject of the eleventh assignment of error, and raises the material question involved in this appeal; that is, as to whether the words of a certain devise or grant of real estate gave a title by entireties or as tenants in common. By his deed executed and delivered on April 7, 1883, Jacob B. Smith conveyed certain premises therein described to his daughter “Nancy Rhodes and her husband Hugh D. Rhodes.” In the receipt the grantor acknowledges to have received “of the above named Nancy Rhodes and her husband Hugh D. Rhodes, the sum of $6,000 (in which $3,703.21 being her interest in said estate) lawful money of the United States, being the consideration money above mentioned in full.” The court below found that this conveyance was made as part of a plan by which Jacob Smith made division of a large portion of his property among his children, prior to his death. The learned court further found: “There is nothing upon the face of the deed which indicates that Hugh D. Rhodes was to have but a life interest, and we are of the opinion that the testimony taken in connection with the deeds that were offered in evidence, is not sufficient to show that the intent existed between the parties to take otherwise than according to the legal presumption. The deed on its face acknowledges that the grantees paid the sum of $6,000, and that $3,703.21 was paid by Nancy Rhodes. The testimony of Mr. Hoover supports the contention, which is not seriously disputed by the petitioners, that $2,300, was paid by Hugh D. Rhodes. We have, therefore, a conveyance made to a husband and his wife, each contributing a portion of the purchase money, the wife dying prior to the husband. Under these conditions what estate vested in the husband at her death? ” He answered the question by holding that the deed conveyed an estate by entireties, and that upon the death of the wife, the husband as survivor, took the fee simple. With this conclusion we quite agree. The facts of this case bring it squarely within the definition of an estate by entireties. The estate vested in Nancy Rhodes and Hugh D. Rhodes when they were husband and wife. In Bramberry’s Est., 156 Pa. 628, it is said (p. 632): “A tenancy by entireties arises whenever an estate vests in two persons, they being when it so vests, husband and wife.” The title was acquired by them jointly after marriage. This fits the definition in Alies v. Lyon, 216 Pa. 604: “An estate by entireties is one held by husband and wife by virtue of title acquired by them jointly after marriage.” The historical background of the doctrine of estates by entireties and its present status in Pennsylvania is shown in a clear and concise opinion by Judge Henderson in Hoover v. Potter, 42 Pa. Superior Ct. 21. It is true that the law looks at the character of the transaction as well as at the form of conveyance. If the deed be made merely in partition of land in which either husband or wife had already acquired a vested interest, it is in such case merely substituting a divided share for an undivided one. See Stehman v. Huber, 21 Pa. 260; Taylor v. Birmingham, 29 Pa. 306. In Dexter v. Billings, 110 Pa. 135, it was held, as set forth in the syllabus, that a deed by a brother to his sister and her husband jointly for her interest in her father’s real estate would not divest her title as beneficial owner of the whole share, unless it was shown affirmatively that she intended to make to her husband a gift of a joint interest. Mr. Justice Sterrett said (p. 141): “If the transaction was in fact an amicable partition and the deed for the wife’s purpart had been made to her husband alone, he would not have thereby become the beneficial owner of the land. He would have held the title for her and not for himself.” But in these cases, the wife or husband had an undivided interest in the land before the partition; and the conveyance only separated that interest and conveyed no new estate. In the present case, Nancy Rhodes had no estate in the premises prior to the execution of the deed from her father to her and to her husband. The intention may be made clear in a deed that the grantees, even though husband and wife, are to take estates in severalty. In illustration of this distinction, see the discussion in the opinion in Young’s Est., 166 Pa. 646. Another case in which the intention not to create an estate by entireties was apparent, was that of Bedford Lodge I. O. O. F., No. 202, v. Lentz, 194 Pa. 399. The deed there was to husband and wife, but the language of the habendum shows that they were intended to take different estates. No such intention appears in the case now before us. The father evidently intended to convey the lands described to his daughter and her husband jointly for the consideration of 16,000, of which sum there was paid by the husband $2,300, in round numbers, and the balance was intended to represent the amount of his daughter’s' interest in his estate. Under the terms by which the estate was created, if the husband had predeceased his wife, she would have taken the whole of the estate. But as the husband survived, he took the estate in fee simple. We think the conclusion reached by the learned judge of the court below was correct.

The decree is affirmed.