author: Mr. Justice Brown, Mr. Justice Mestrezat,

text:
    Sullivan v. Jones & Laughlin Steel Company, Appellant.

      Equity — Equity practice — Violation of decree — Contempt—Evidence.
    When those enjoined by a decree in.equity are charged with having violated it, its violation must be made to clearly and satisfactorily appear by the petitioner asking for its enforcement. Until its violation so appears there can be no finding of contempt, and a fine will not be imposed, nor an order of commitment made.
    The procedure by rule for contempt should not be exercised unless a case is presented of actual disobedience. The entry of an order of injunction is, in some respects, analogous to the publication of a penal statute. It is a notice to the party that certain things must be done or not done, under a penalty to be fixed by the court. The language of such notice should not be stretched to cover acts not fairly and reasonably within its meaning.

      Equity — Injunction—Decree—Nuisance—Dust from steel works — Violation of decree — Contempt of court — Attachment—Evidence.
    On a bill in equity by owners of property in a residential neighborhood against a steel company, an injunction was issued because the defendant so operated its furnaces as to destroy the trees and shrubbery of the plaintiffs, to drive tenants from their houses and to blacken, disfigure and practically destroy and confiscate their whole property. On a petition for an attachment for contempt for violating the decree, the evidence showed that ore dust escaped from time to time from the defendant’s furnace, and especially during the time while changes and experiments were being made to prevent the escape of "such dust. It also appeared that the escape of such dust was not only annoying but injurious to plaintiffs’ properties, in that it choked rain conductors upon houses, discolored fabrics and paints and injured carpets and curtains, and was of a greasy nature and difficult to remove from both garments and paints. The evidence also showed that defendants had made an honest effort at great expense to lessen the evil, and that they had so far succeeded that between the date of the decree and the time of the filing of the petition for contempt, the trees and shrubbery were not destroyed nor were tenants driven from houses, nor were the properties longer being practically destroyed and confiscated. Held, that the evidence was not sufficient to justify the issuing of an attachment against the defendant for contempt.
    Mestrezat, J., - dissents.
    Argued Eeb. 17, 1908.
    Appeal, No. 140, Oct. T., 1907, by defendants, from decree of O. P. No. 2, Allegheny Co., Oct. Term, 1902, No. 620, awarding an attachment for contempt of court in case of E. R. Sullivan and Jennie P. A. Sullivan, his wife, v. Jones & Laughlin Steel Company et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Petition for attachment for contempt.
    The trial court, Young, J., found the defendants guilty of contempt in the following opinion :
    This cause comes before us now upon the petition of the plaintiffs reciting that on April 19, 1904, at the above number and term of this court, a decree was entered by this court, among other things, perpetually enjoining and restraining the defendant “from such operation of its furnaces, situated in Fourteenth W ard of the City of Pittsburg, and described in the bill, as to cause to" be emitted therefrom, clouds of ore dust, working and causing the injury to the property of the plaintiffs, as in the bill described and found by the Court; ” and that, notwithstanding said decree, the defendants “ have persistently and at intervals, daily and frequently, manytin.es during the day and night, since the day when said decree was entered, so operated its furnaces as to cause to be emitted therefrom clouds of ore dust, working and causing the injury to plaintiffs’ property, as in said bill described, and found by this Honorable Court, and in open and deliberate violation of the terms of said decree and injunction, and against the oft-repeated protests of your said petitioners,” and that the petitioners are “advised, believe and charge that the defendant, its officers, agents and employees are each and all in contempt of this Honorable Court,” and prays that Benjamin F. Jones, Jr., Willis L. King, William L. Jones, Henry S. Kiehl, W. W. Willock, William C. Moreland, James B. Laughlin and George M. Laughlin, who are the directors of the Jones & Laughlin Steel Company, of whom Benjamin F. Jones, Jr., is president, Willis L. King, vice-president, James B. Laughlin, treasurer, William C. Moreland, secretary, William L. Jones, general manager, and E L. Messier, superintendent of the Eliza Furnaces of said'Jones & Laughlin Steel Company, be adjudged to be in contempt of this court, and that attachment be issued against them for failure to comply with the aforesaid terms of said decree.
    To this petition, presented to the court upon January 10,1907, the defendants, on January 19, filed an answer, admitting that the defendants are the officers, agents and servants of the defendant company, and that they were duly notified of the entry of the decree at the time of its entry ; but denying “ that the defendant, the Jones & Laughlin Steel Company, has persistently and at intervals, daily and frequently, many times during the day and night, since the day when said decree was entered, so operated its furnaces as to cause the injury to plaintiffs’ property, as in said bill described, and found by this court, and in open and deliberate violation of the terms of said decree and injunction, and against the oft-repeated protests of the said petitioners.” The answer also admits that <£ there have been at different times since April 19,1904, escapes of ore dust from the Eliza furnaces, but not at ail in character, extent or effect such escapes of ore dust as were enjoined by the decree of this honorable court, and most of these escapes occurred during the time that new and very extensive appliances— adopted to do away with the escape of ore dust — were being attached to said furnaces and were due to this cause, said new appliances being so extensive as not only greatly to disarrange and disturb the operation of the furnaces while the work of putting them up and attaching them was going on, but to render necessary the disconnecting and opening of certain pipes and parts of the furnaces, which contributed to the escape of ore dust.” The answer also denies “that they have violated said injunction in letter or spirit, but beginning even before the entry of said injunction, and continuing to this time, they have been unceasing in their efforts to prevent the escape of ore dust from the furnaces in question,” and avers that “ they have been watchful and careful in the operation of their furnaces ; they have analyzed and selected all the ingredients used theréin, ore, coke and limestone; they have made important changes in their furnaces ; they have adopted and used new and costly appliances, and, without stopping to consider cost, they have in many other ways, done that which to them or to their engineers gave promise of good results in furtherance of their efforts to remove entirety every cause of annoyance, or even inconvenience from escaping ore dust. And they are willing and ready in time to come, in' the operation of said furnaces there, to do any and everything further in this behalf, which will prevent entirety, or still further reduce the escape of ore dust;” and that “ speaking from their own observations, from what the changes in the furnaces and the new appliances themselves show; from the expressed opinions and beliefs of their engineers, superintendents and persons in charge of said furnaces; from what they have learned, and heard from many persons living in the Oakland district, and even nearer to the site of said furnaces, they are enabled to say, and do say, that great progress and advancement have been made towards preventing the escape of ore dust from the said furnaces, or at least reducing it to such an extent that no inconvenience or annoyance will be suffered therefrom; ” and denying “that the defendants, its officers, agents, servants and employees are each, and all, or any of them, in contempt of this honorable court, and théy pray, therefore, that the rule for an attachment entered in this case, may be discharged.”
    Upon this petition and answer being filed, this court, upon February 7, began taking the testimony to determine the question as to whether said defendants, its officers and agents, should be adjudged guilty of contempt of this court, and an attachment be issued against them for failure to comply with the terms of the decree; and the court continued to take testimony submitted, taking-in all 1,962 pages of testimony, and finally having heard counsel both in oral argument and by written brief, we come now to determine the question whether the defendants in this case, its officers, agents and employees, are in contempt of this court and have violated its decree. The sole inquiry, then, before the court, is whether the Jones & Laughlin Steel Company, the defendant, or the persons named as its officers, employees and agents, have since April 19,1904, refused or failed to comply with the.decree of this court in enjoining and restraining them “ from such operation of its furnaces, situated in the Fourteenth ward of the city of Pittsburg, and described in the bill, as to cause to be emitted therefrom, clouds of ore dust, working and causing the injury to the property of the plaintiffs, as in the bill described and found by this court.” There lies at the very foundation of this inquiry the question as to the meaning of this injunction, because, until we shall have determined exactly its meaning, we shall not be able to determine whether or not the defendants have disobeyed it. Ordinarily the meaning of a decree and the purpose to be accomplished by it are easily determined from the words of the order or decree, but where there may be any doubt concerning either the meaning of the decree or the purpose of the court in making it, we are entitled to hare such light from proper sources as to make it clear beyond question, and especially is this true when the proceeding is one for the punishment of persons for its violation, the proceeding becoming a quasi criminal proceeding, and we are required to examine and strictly construe the order disobeyed as though it were a criminal statute. It is especially important in the case at bar to determine these things accurately and definitely because of the magnitude of the operations on the one hand and the great alleged injury on the other hand, arising out of conditions in a great manufacturing city, subject- to many injuries and annoyances by reason of its being a manufacturing city that would not occur elsewhere, aside from the duty of the court to compel obedience to its decree. In seeking the meaning of the decree and the objects of the court in making it, the decree naturally falls into two propositions, or inquiries: first, what is meant by such operation of its furnaces as to cause to be emitted therefrom clouds of ore dust; and, second, what injury to plaintiffs’ property is described in the bill and found by the court; and to the answer to these two propositions, or inquiries, we must first apply ourselves. To determine this, we must look to the findings of fact by the learned judge of the court below on the original trial of the case and to the opinion of the Supreme Court.
    Such operation of the furnaces must include therein rebuilding, improving or enlarging, as found in the ninth finding of fact, in these words :
    “ That between March, 1898, and May, 1901, the three furnaces at that time constituting the Eliza furnaces were rebuilt, improved and enlarged upon the site then and now occupied by them, and a fourth furnace added upon that site. The first of the rebuilt furnaces was ‘ blown in ’ September 1, 1899 ; the second, May 13, 1900 ; the third, January 21, 1901, and the fourth on May 8, 1901. These furnaces as rebuilt, improved and enlarged, are constructed in accordance with modern and approved plans, and in their construction are in every respect equipped with modern appliances and improvements, and are equal, in many respects supérior, to other furnaces in this locality in which pig iron is manufactured, andaré among the largest known in the iron business, having a capacity each of about 500 tons daily production, and consuming together about 4,000 tons of ore daily.”
    And again in the fifteenth finding of fact:
    “ The ores known as the Mesaba ores are mined in the state of Minnesota, and in their.physical structure are finer than the Old Kange ores. Mesaba ores have been used in all furnaces in this district, in making pig iron since the year 1892, in increasing quantities, until the year 1902, when the relative quantities of Old Eange and Mesaba ores brought to Lake Erie ports was about 50$ of each; that the amount of Mesaba ores brought to lake ports had increased from 5,000 tons in 1892 to 12,000,000 tons in 1902. That the defendant company now uses in its furnaces, and has been using for the past seven or eight years, a portion of Mesaba ores known as Adams, Lincoln and Duluth, which are among the best in quality of all Mesaba ores. The amount of Mesaba ores used by the defendant company in its furnaces in the past seven or eight years has averaged 30$ of the total ore used, which is a less proportion than is used generally in blast furnaces in this district. That at the present time the percentage of Mesaba ore used at the Eliza furnace is about 23$.”
    And again in the sixteenth finding of fact:
    “ That the escape of ore dust due to ‘ slips ’ in the furnace is a financial loss to the operator, both in the matter of production and in the loss of ore ; that the defendant has been diligent in its efforts to find means, or to adopt appliances or inventions which will prevent the escape of dust from its furnaces; that up to the present time no appliance has been found which will effectually prevent, or reasonably diminish, the escape of the ore dust from blast furnaces, when ‘ slips ’ occur. That the use of Old Eange ores exclusively would not materially lessen the number of ‘ slips ’ occurring in furnaces, but would, to a considerable extent, decrease the amount of ore dust discharged into the air at each explosion.”
    As found by the court below, the operation complained of was the building and enlarging of the furnaces, the use therein of large quantities of Mesaba ore and the emission into the atmosphere of unconsumed portions of that ore in great quantities, carried by currents of air in heavy clouds. An examination of the opinion of Mr. Justice Brown in the case when it was in the appellate court, in 208 Pa., at p. 549, shows that the court had these findings of fact in mind. There the learned justice says:
    “ Their complaint is that the appellee, in tearing down the three furnaces and replacing them with the four new ones, of immense size and several times the capacity of the old, and in using in them the fine £ Mesaba’ ore dust, without so operating them as to prevent the escape of the dust from £ slips,’ causing admitted devastation, is practically confiscating their properties. . . . Here the furnaces were artifically brought by appellee on to its lands by being built there by it, and the £ Mesaba ’ ore converted by the furnaces into iron is also artificially brought there by it. It knew, when about to erect these new furnaces, of immense size and great capacity, that, in their operation, the rights of others, among them those of the appellants, to the use and enjoyment of their property, situated in what, for years, had been a portion of the city given up to residences, were not to be utterly disregarded; and when it began to use the fine ore dust, which has manifestly caused the serious injury to the property of the appellants, it was again bound to consider the effect of the use of this ore upon the nearby residences.”
    "We must, therefore, conclude that the words, “ such operation of its furnaces as to cause to be emitted therefrom clouds of ore dust,” mean the building, the enlargement and the use of its furnaces and the use of Mesaba ore in the furnaces in such a way as to cause clouds of ore dust to be cast from them into the atmosphere. As said by the Supreme Court, it is not the enlargement of their furnaces and the use of Mesaba ore in the furnaces, but it is the enlargement of the furnaces and the use of Mesaba ore in the furnaces they being so operated as to cause slips and explosions and the emission into the air of clouds of ore dust, that makes the injury of a new kind and not one of degree, when compared with the operations of other furnaces within this manufacturing district. The complainant, then, having alleged this new kind of injury, the court below having found the nature of the act and the Supreme court having distinguished it as differing in kind, we have no difficulty in understanding that the final decree of the court, which was made in the identical language used by the learned justice at the close of his opinion, meant that what was perpetually enjoined was that operation of the furnaces, that use of Mesaba ore in the furnaces so that the slips and explosions occur and so that clouds of dust are emitted from them.
    We next turn to the second inquiry, what is meant in the decree by clouds of ore dust working and causing the injury to the property of the plaintiffs as in the bill described and found by the court below. This is defined by the learned judge of the court below in the seventeenth finding of fact:
    “ That ore dust was first noticed settling upon properties in the neighborhood of defendant’s furnaces as early as 1899, but that deposit did not become serious until about July, 1901. Since that time, dust, in greater or less quantities, has been carried from defendant’s furnaces and deposited upon and about plaintiffs’ premises. That the effect of the dust is not only annoying, but injurious to property; that it chokes rain conductors upon the houses, discolors fabrics and paints and injures carpets and curtains; that it is of a greasy nature and difficult to remove from both garments and paints; that it has also been destructive to fruit and shade trees and vegetation generally, and has depreciated the value of plaintiffs’ properties from twenty-five per cent to fifty per cent.”
    Turning now to the opinion of Mr. Justice Brown, as found on page 550, we find this expression :
    “ When, however, as the result of the improvements voluntarily made by the appellee, and its use of a new ore, the annoyance, inconvenience and injury to which appellants are now subjected do not differ merely in degree from those to which they formerly submitted as part of their lot as citizens of the £ Iron City, ’ but in kind, and practical destruction and confiscation of their properties confront them, a very different situation is presented to a chancellor from those cases in which the rule is laid down that people who live in such a city, or within its sphere of usefulness, do so of choice, and, therefore, voluntarily submit themselves to its peculiarities and its discomforts. That very rule, as announced in Huckenstine’s Appeal, supra, recognizes their right to live and have their homes there; and a case cannot be found as authority for the right of any manufacturing company, located in a manufacturing district of a city to so rebuild and operate its furnaces as to actually destroy homes and other property in a residential portion of the same city. That this is what the appellee is doing, is an irresistible conclusion, and the only relief is by injunction. If it is to be permitted to so operate its furnaces that the burning and corroding dust emitted from its stacks is borne by the winds and scattered over the properties of the appellant with destroying effect, simply because of the plea that it cannot be helped, for the same reason it might ask a chancellor to stay his arm from arresting the descent of showers of fire from the same stacks down on the same nearby homes. If the appellee possessed the right of eminent domain, it might take the properties of the appellants and do with them what it pleases, but, not having such high right, it cannot do so, even indirectly. It has a right to the use and enjoyment of its own property, but so have the appellants to theirs, for whom the law says to the former, ‘ sic utere tuo ut alienum non lsedas.’ ”
    We must conclude, therefore, that the injury which it was intended to prevent by this decree under the words, “ working and causing the injury to the property of the plaintiffs, as in the bill described and found by this court,” means the injury resulting from the casting of ore dust upon the complainants’ property, and that, “ the effect of the dust is not only annoying, but injurious to property; that it chokes rain conductors upon the houses, discolors fabrics and paints and injures carpets and curtains; that it is of a greasy nature and difficult to remove from both garments and paints; that it has also been destructive to fruit and shade trees and vegetation generally, and has depreciated the value of plaintiffs’ properties from twenty-five per cent to fifty per cent.”
    We turn, then, to the evidence in this case to determine, in the first place, if the defendant since the granting of the injunction on April 19, 1904, has been, operating its furnaces, using the finely pulverized Mesaba ore and thereby allowing slips and explosions to occur, throwing out clouds from which the ore dust settles upon the property of complainants, causing not only an annoying but an injurious effect to the property in the manner found by the court below. From the admissions of the answer and the evidence, we must conclude that ore dust does from time to time escape from the Eliza furnaces. We must also conclude that large quantities of ore dust escaped while changes and experiments were being made in an honest effort to prevent the escape of ore dust in the operation of the furnaces, but the evidence shows that frequently when changes and experiments were not being made, but when the furnaces were being operated in the ordinary and usual way, there have been escapes of clouds of ore dust from the furnaces. All of plaintiffs’ and many of defendants’ witnesses testified that clouds of ore dust came from the furnaces. The evidence conclusively shows that defendants have persistently and frequently, both day and night, so operated their four old furnaces and a fifth furnace built since the granting of the injunction as to be emitted therefrom clouds of ore dust. The evidence shows conclusively that ore dust from the furnaces has been deposited upon and about plaintiffs’ premises frequently since the making of the decree. The evidence also shows conclusively that the effect of the ore dust is not only annoying but injurious to property; that it chokes rain conductors upon the houses, discolors fabrics and paints and injures carpets and curtains; that it is of a greasy nature and difficult to remove from both garments and paints. The evidence does not satisfy us that it has been destructive of fruit and shade trees and vegetation generally since April 19, 1904. Neither does the evidence satisfy us that there has been any further depreciation of the value of petitioners’ property since the granting of the injunction, but it is nevertheless true that there has been no substantial improvement in values since that time, although real estate values elsewhere in the city not subjected to similar injury have greatly increased. But the evidence shows just as conclusively that the frequency of the clouds of ore dust and the quantity escaping from defendants’ furnaces and depositing upon plaintiffs’ property, is not in such quantities as prior to the making of the decree. A careful consideration of the evidence produced by both plaintiffs and defendants irresistibly leads to the conclusion that the clouds are not so frequent and the quantities of ore dust escaping not so great. The defendants’ witnesses, especially those of the defendants in charge of the furnaces, including the general manager, the general superintendent and the president of the company, estimate that the escape of ore dust has been lessened eighty per cent. This does not indicate what quantity escapes and is only evidence that the quantity escaping is much less than formerly. This is the sole defense of the defendants. They say in answer to the petition asking for an attachment that the escapes of ore dust were not of such character, extent or effect as were enjoined by the decree. They deny that they violated the injunction in letter or spirit, but say that beginning before the entry of the injunction and continuing to the present they have been unceasing in their efforts to prevent the escape of ore dust from the furnaces ; that they have been watchful and careful in the operation of their furnaces ; have analyzed and selected all the ingredients used therein, ore, coke and limestone ; that they have made important changes in their furnaces; they have adopted and used new and costly appliances, without considering cost, in their efforts to remove entirely every cause of annoyance or even inconvenience from escaping ore dust; and that they are now willing and ready at all times to come, in the operation of said furnaces, to do any and everything which will prevent entirely or still further reduce the escape of ore dust; and they say they have made great progress and advancement towards preventing the escape of ore dust, or at least have decreased it so that no inconvenience or annoyance will be suffered in the future.
    The evidence in this case shows most conclusively that neither trouble nor expense has been spared by the defendants to prevent the escape of ore dust from their furnaces, and the consequent injury to plaintiffs’ property. Every known method of operation, every experiment, however costly, has been carefully investigated and thoroughly tried to prevent the escape of ore dust. The defendants have expended for this purpose alone $285,000. The defendants, in addition to expending these large sums of money, have suffered great loss, estimated at over $200,000, in their output by shutting down their furnaces to make experiments, in reducing the capacity of their furnaces, and in the selection of coal, limestone and other material. "We are satisfied that the defendants have made every effort to comply with the decree, and there can be nowhere found in the evidence anything which could be regarded as evidence of the obstinate refusal to obey the decree of the court, except in so far as their operation of the furnaces at all has been a violation of the decree. These defendants, we are satisfied, have done everjThing human ingenuity could suggest, or human experience indicate, to prevent their furnaces from emitting ore dust. It is insisted by counsel for defendants that these efforts upon the part of defendants are conclusive evidence that the defendants have not violated the spirit of the decree, and, therefore, that they should not be attached for contempt. We cannot agree with the position of the defendants that this is a good answer to the charge that defendants have violated the decree. The decree in plain words forbade the emission of clouds of ore dust, working the injury found by the court as injurious to property in the way described by the court, and the defendants have since the granting of that decree so operated their furnaces as to frequently cause to be emitted clouds of ore dust causing the same kind of injury, although the emission of clouds is not so frequent, the amount of ore dust cast upon plaintiffs’ property, and the consequent injury, not so great as when the decree was granted. We cannot understand that this decree was intended to enjoin the defendants from causing their furnaces to emit a certain number of clouds, or that such clouds should contain less than a certain quantity of ore dust, or that they must not deposit more than a certain quantity of ore .dust upon plaintiffs’ property, or that the injury must not exceed a certain percentage of the value of the property. We understand that decree to mean in the light of the findings of fact, as interpreted by the Supreme Court, that the injury differed in kind from the ordinary injury suffered by residents of a manufacturing city, in that the defendants had enlarged their furnaces, brought there fine Mesaba ore, and so operated their furnaces as to permit this ore to be cast upon plaintiffs’ property, thereby causing the injury found by the court. As the defendants are still causing their furnaces to be operated so as to cause to be emitted from them clouds of ore dust, which is cast upon plaintiffs’ property, causing substantially the same kind of injury, though not as great in extent, they have been guilty of refusing to obey the decree of the court, and are to be adjudged guilty of contempt in doing so. Whatever views we might hold upon an original hearing of the case as now presented, however we may be inclined by the facts as presented by the defendants to the belief that they have done the best they could, and, however we may be affected by the belief that the defendants did not intend to disobey the decree, we are sure that it is our duty to enforce the decree.
    ■We have no discretion in deciding this question. The appellate court has determined the question, it has defined the duty of defendants, and by its decree declared that these defendants should not do the things which they had theretofore done, and which the evidence shows conclusively they are still doing. If they cannot obey the decree and operate their works, they must cease to operate them until they can obtain a modification of the decree.
    The defendants must be adjudged to be in contempt of this court, and an attachment must issue against them for failure to comply with the terms of its decree.

      Error assigned was decree awarding an attachment for contempt.

      David T. Watson and George O. Wilson, with them Gla/renoe Burleigh, Wm. D. Evans and John M: Freeman, for appellants.
    The decree was to be strictly construed in favor of the defendants : Wisconsin Central R. Co. v. Smith, 52 Wis. 140 (8 N. W. Repr. 613); Louisville, etc., R. R. Co. v. Miller, 112 Ky. 464 (66 S. W. Repr. 5); Appeal of Philadelphia & Reading Railroad Co., 2 Walker’s Reports, 243; High on Injunction (4th ed.), sec. 1433; Coit v. Freed, 15 Utah, 426 (49 Pac. Repr. 533); Dawson v. Paver, 5 Hare, 415; Woodruff v. North Bloomfield Gravel Min. Co., 45 Fed. Repr. 129; Magennis v. Parkhurst, 4 N. J. Eq. 433; Probasco v. Probasco, 30 N. J. Eq. 61; Worcester v. Truman, 1 McLean, 483.

      Where the proof leaves it a matter of doubt as to whether the injunction has been violated, the position for attachment for contempt will be denied: Celluloid Mfg. Co. v. Chrolithian Collar & Cuff Co., 24 Fed. Repr. 585; Louisville, etc., R. R. Co. v. Miller, 112 Ky. 464 (66 S. W. Repr. 5); Woodruff v. Mining Co., 45 Fed. Repr. 129; Public Service Corporation of N. J. v. DeGrote, 62 Atl. Repr. 65; Postal Tel. Cable Co. v. R. R. Co., 88 Va. 929 (14 S. E. Repr. 691); Accumulator Co. v. Consolidated Electric Storage Co., 63 Fed. Repr. 793; Dawson v. Paver, 5 Hare, 415.

      Thomas Patterson, of Patterson, Sterrelt <& Aoheson, for appellees.
    The only attitude of a defendant towards an injunction is one of obedience : Rodgers v. Pitt, 89 Fed. Repr. 424; Woodruff v. Mining Co., 27 Fed. Repr. 795; Russell v. Ry. Co., 3 MacN. & G. 104; People ex rel. Day v. Bergen, 53 N. Y. 404; Penna. R. R. Co. v. Thompson, 49 N. J. Eq. 318; Patterson v. Building Trades Council of Wilkes-Barre, 31 Pa. C. C. Rep. 401.
    June 23, 1908 :
   Opinion by

Mr. Justice Brown,

The decree in this case perpetually enjoins Jones & Laughlin Steel Company from such operation of its furnaces, situated in the Fourteenth ward of the city of Pittsburg, as to cause to be emitted therefrom clouds of ore dust, working and causing the injury to the property of the appellees as in their bill of complaint described and found by the court below: Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 540. For an alleged violation of this injunction the appellants were found guilty of contempt, and their appeal is from that finding and the penalties imposed upon them.

The relief given the appellees was what they specifically asked for in the first prayer of their bill. It was that the steel company “ be enjoined and restrained from such operation of its furnaces, situated in the Fourteenth ward of the city of Pittsburg, as above described, as to cause to be emitted therefrom clouds of ore dust, working and causing an injury to your orators’ property, as in said bill described.” The injuries arrested were those “ in the bill described and found by the court below; ” and if they were continued by the appellants, in violation of the decree forbidding them, the order of the court in the proceedings for contempt will not be disturbed. After deliberate and mature consideration, our decree went forth for relief to the appellees, and, as made, it will be enforced. It is not, however, to be stretched to reach what was not forbidden and what would not have been enjoined.

When those enjoined by a decree in equity are charged with having violated it, its violation must be made to clearly and satisfactorily appear by the petitioner asking for its enforcement : Appeal of Philadelphia & Reading Railroad Company, 2 Walker’s Reports, 243. Until its violation so appears there can be no finding of contempt, and a fine will not be imposed nor an order of commitment made. “ No punishment should be inflicted unless the facts constituting the contempt have been clearly and satisfactorily established: ” Woodruff v. North Bloomfield Gravel Mining Co. et al., 45 Fed. Repr. 129. In a proceeding such as this now before us the injunction must, like a penal or criminal statute, be construed strictly in favor of the person charged with having violated it: Wisconsin Central Railroad Co. et al. v. Smith, 52 Wis. 140; and a chancellor will not punish unless the guilt of the enjoined be clearly established: Probasco v. Probasco, 30 N. J. Eq. 61. “ The procedure by rule for contempt should not be exercised unless a case is presented of actual disobedience. . . . The entry of an order of injunction is, in some respects, analogous to the publication of a penal statute. It is a notice to the party that certain things must be done or not done, under a penalty to be fixed by the court. The language of such notice should not be stretched to cover acts not fairly and reasonably within its meaning:” Louisville & N. R. R. Co. v. Miller, 112 Ky. 464. “ An order of commitment for breach of an injunction being strictissimi juris, it will not be granted except upon a clear and satisfactory showing of the actual violation: ” High on Injunctions (3d ed.), sec. 1449.

The first inquiry in passing upon appellants’ alleged violation of the decree is as to what was enjoined. The injunction was to stop the injuries “ in the bill described and found by the court below.” What we regarded as those injuries can readily be ascertained from the following findings of the court below, recited in our opinion: “ Ore dust was first noticed settling upon properties in the neighborhood of defendants’ furnaces as early as 1899, but the deposit did not become serious until about July, 1901. Since that time, dust, in greater or less quantities, has been carried from the defendants’ furnaces and deposited upon and about plaintiffs’ premises. The effect of the dust is not only annoying, but injurious to property ; it chokes rain conductors upon houses, discolors fabrics and paints, and injures carpets and curtains; it is of a greasy nature and difficult to remove from both garments and paints; it has also been destructive to fruit and shade trees and vegetation generally, and has depreciated the value of plaintiffs’ properties from twenty-five per cent, to fifty per cent. . . . The residence district in which plaintiffs’ property is situated, and which is a part of the Fourteenth ward of the city of Pittsburg, was, prior to the year 1899, a pleasant and habitable part of the city. While subject, as most parts of the city are, to smoke, it occasioned no special inconvenience to the inhabitants and the testimony shows that flowers, trees and shrubs were kept and cared for, and were not injured, by any smoke or dust which might prevail throughout the district. Some of the witnesses for the plaintiffs testify that they first noticed the ore dust as early as 1899, but it did not become serious until the year 1901. In the latter year, when all four furnaces were completed and in operation, the ore dust was thrown out in large quantities and at more frequent intervals and has increased from that time down until the filing of the bill. The plaintiffs’ property by reason of its location near the defendant’s furnaces, receives the full effect of the discharge of ore dust therefrom. Almost all the trees in the orchard which formerly produced some eighty bushels of pears in a season, the shade trees, of which there were something over twenty in number, and the shrubbery about the house have been for the most part destroyed. The whole property has been blackened and disfigured. A number of tenants have been forced to leave the dwelling houses by reason of the penetrating and damaging deposits of ore dust. From the conductors leading from the porch roofs in front of these houses the plaintiffs had removed on one occasion three barrels full of ore dust the weight of the amount thus removed being some 1,200 pounds. . . . The effect of the ore dust upon properties upon which it is deposited is very damaging. It corrodes tin and metal work which are exposed to it, it chokes and fills conductors, it discolors and removes paint, it affects injuriously fabrics in the interior of houses both by impregnating them with dust and by attacking and injuriously affecting the fiber. People are compelled to keep their doors and windows closed during the passing of a dust shower, and even with these precautions, the ore dust shifts in through the crevices to such an extent that it is easily traceable upon window sills, floors, books, furniture and carpets. The ore dust frequently descends in such large quantities that persons caught in it are compelled, in some instances, to hoist umbrellas and seek refuge on porches and in houses. Their clothing is sometimes stained and otherwise injured. It is of a greasy nature, and any garment or surface affected by it is difficult to cleanse.” From this intolerable condition relief was granted, because it amounted, in the judgment of this court, to “ practical destruction and confiscation ” of appellants’ properties, and but for this effect the decree dismissing the bill would have been affirmed, for we said : “ The appellants are not complaining because appellee is operating its furnaces. They would not be heard if that were their only complaint. The city of Pittsburg is a busy manufacturing center, and by day and by night clouds of smoke ascend from the stacks of its numberless mills, factories and furnaces, oftentimes hanging over it like a pall. In a manufacturing district of this city the appellee has established its furnaces, and is engaged in an important and lawful business. The appellants, in a residential portion of the same city, close by this manufacturing district, own houses in which their tenants live. So situated, they must expect a measure of annoyance and discomfort, arising from the dust and smoke, which cannot be avoided in their manufacturing metropolis, and are borne to the homes of the city and fill the air that is breathed. To this general annoyance and discomfort appellants submitted for years without complaint, and they were bound to do so, for they chose to erect their houses not only in sight of great manufacturing plants, but within certain reach of the smoke and dust, without which the fires of the furnaces and factories could not burn. Of all this there is now no complaint by them. What, in common with all,other citizens, they had endured for years, up to the summer of 1901, they were willing to continue to endure ; and they are not now complaining of appellee’s manufacture of iron, even with ‘ Me-, saba’ ore. Their complaint is that the appellee, in tearing down the three furnaces and replacing them with the four new ones, of immense size and several times the capacity of the old, and in using in them the fine ‘ Mesaba ’ ore dust, without so operating them as to prevent the escape of the dust from ‘ slips,’ causing admitted devastation, is practically confiscating their properties. To preserve these to them, and to protect them in their absolute right to the enjoyment of their private property, subject to the general conditions of the city in which they -live, this bill was filed, and its prayer is not to restrain the appellee from operating its furnaces and manufacturing iron, but is to enjoin it from such operation of them as causes the serious and exceptional injuries alleged in the bill and proved by the testimony. ... If this bill were for relief from personal inconvenience and interference with the appellants’ full and free enjoyment of their property, due merely to the conditions of smoke and dust that have existed for years, and will exist as long as the city itself continues to be the great steel and iron manufacturing center, it would be promptly dismissed. Of the smoke and dust now coming from all the other surrounding mills and furnaces no complaint is made, and of what used to come from the old furnaces of the appellee the appellants made no complaint, and would not be complaining now but for the changed conditions brought about by the appellee. The court below, though requested by it, refused to find that ‘ the matters complained of by plaintiffs are only such discomforts and inconveniences as are, and always have been, incident to and consequent upon close proximity to an exclusively manufacturing section of a manufacturing city.’ .... We are not to be understood as saying, or even intimating, that the large furnaces could not be erected and operated, that ‘Mesaba’ ore cannot be used, or that if, in the operation of the furnaces and the use of this fine ore, the discomfort and annoyance of the appellants had simply been increased in degree, they would be entitled to equitable relief.” Nothing could be clearer than that the decree was not intended to enjoin the operation of the furnaces nor the use of “ Mesaba ” ore.

The averment of the appellees in their petition for an attachment is that, notwithstanding the entering of the decree, the “Jones & Laughlin Steel Company has persistently, and at intervals daily, and frequently, many times during the day and at night, ever since the day when said decree was entered, so operated its furnaces as to cause to be emitted therefrom clouds of ore dust, working and causing the injury to plaintiffs’ property as in said bill described and found by this honorable court, and in open and deliberate violation of the terms of said decree and injunction.” To this appellants answered: “It is denied that the defendant, the Jones & Laughlin Steel Company, has persistently and at intervals, daily and frequently, many times during the day and night, since the day when said decree was entered, so operated its furnaces as to cause to be emitted therefrom clouds of ore dust, working and causing the injury to plaintiffs’ property, as in said bill described, and found by this court, and in open and deliberate violation of the terms of said decree and injunction, and against the oft-repeated protests of the said petitioners. They admit there have been at different times since April 19, 1901, escapes of ore dust from the Eliza furnaces, but not at all in character, extent or effect such escapes of ore dust as were enjoined by the decree of this honorable court, and most of these escapes occurred during the time that new and very extensive appliances— adopted to do away with the escape of ore dust — were being attached to said furnaces, and were due to this cause, said new appliances being so extensive as not only greatly to disarrange and disturb the operation of the furnaces while the work of putting them up and attaching them was going on, but to render necessary the disconnecting and opening of certain pipes and parts of the furnaces, which contributed to the escape of ore dust. They deny that they have violated said injunction in letter or spirit, but beginning even before the entry of said injunction, and continuing to this time, they have been unceasing in their efforts to prevent the escape of ore dust from the furnaces in question. They have been' watchful and careful in the operation of their furnaces, they have analyzed and selected all the ingredients used therein, ore, coke and limestone; they have made Important changes in their furnaces; they have adopted and used new and costly appliances and without stopping to consider cost, they have in many other ways, done that which to them, or to their engineers, gave promise of good results in furtherance of their efforts to remove entirely every cause of annoyance, or even inconvenience from escaping ore dust.” On this issue it was for the court below to find whether the injunction had been violated, and, if it had, to impose proper penalties for its violation. The decree as made must be obeyed, and it will be enforced without regard to consequences to the steel company in the operation of its furnaces. If it cannot operate them without practically destroying the properties of appellants, it must close them. The excuse, that every possible effort has been made to avoid this destruction, will not be heard. This was taken into consideration when the decree against the company was made forbidding it to continue the operation of its furnaces in such a manner as to cause the injuries found to have been sustained by the appellees; but, that the scope of the decree may not be misunderstood, it is again to be noted that the injunction was not to relieve the appellees merely from discomforts and annoyances resulting from smoke and dust emitted from the furnaces and factories surrounding their properties, for such relief could not have been granted: Iiuckenstine’s Appeal, 10 Pa. 102.

What were the findings of the court upon which the appellants were adjudged guilty of contempt ? We give them in the court’s own words: “ Prom the admissions of the answer and the evidence, we must conclude that ore dust does from time to time escape from the Eliza furnaces.” This was not enjoined. “ We must also conclude that large quantities of ore dust escaped while changes and experiments were being made in an honest effort to prevent the escape of ore dust in the operation of the furnaces.” This was not forbidden. On the contrarjq the decree contemplated honest efforts on the part of the steel company to prevent the destructive escape of the Mesaba ore dust in the operation of the furnaces, and the injunction was not to prevent its escape in large or small quantities while changes and experiments were being made to prevent its escape at all, but only such escape in the ordinary and usual operation of the furnaces as worked the injuries described in the bill and found by the court. “ The evidence shows that frequently when changes and experiments were not being made, but when the furnaces were being operated in the ordinary and usual way, there have been escapes of clouds of ore dust from the furnaces. All of plaintiffs’ and many of defendants’ witnesses testified that clouds of ore dust came from the furnaces. The evidence conclusively shows that defendants have persistently and frequently, both day and night, so operated their four old furnaces and a fifth furnace built since the granting of the injunction as to cause to be emitted therefrom clouds of ore dust. The evidence shows conclusively that ore dust from the furnaces has been deposited upon and about plaintiffs’ premises frequently since the making of the decree.” The mere emission of ore dust and the escape of clouds of it are not forbidden, even if deposited upon the plaintiffs’ premises, unless the deposits result in the injuries, “in the bill described and found by the court.” “ The evidence also shows conclusively that the effect of the ore dust is not only annoying, but injurious to property, that it chokes rain conductors upon the houses, discolors fabrics and paints and injures carpets and curtains; that it is of a greasy nature and difficult to remove from both garments and paints.” This is the sum total of the injuries found by the court to have been inflicted upon the appellee since the decree was made, and the foregoing are all the findings upon which the appellants were adjudged guilty of contempt. If, on the appeal from the decree dismissing complainants’ bill, nothing more had appeared than that the ore dust from the steel company’s furnaces, of a greasy nature and difficult to remove from both garments and paints, had been deposited upon the premises of the appellees, causing annoyance and injuries by choking up rain conductors upon the houses and discoloring fabrics and paints and injuring carpets and curtains the decree would unquestionably hawe been affirmed, and nothing in our opinion can be found to indicate anything else. What the court found in this proceeding was nothing more than “ annoyance, inconvenience and injury ” to which the appellees must submit “ as part of their lot as citizens of the ‘ Iron City,’ ” from which relief cannot be given them in equity by closing the plant of the steel company. The injunction issued against it and that now hangs over it went out because it so operated its furnaces as to destroy the trees and shrubbery of the appellees, to drive tenants from their houses, and to blacken, disfigure and practically destroy and confiscate their whole property. The court failed to find, and could not have found under the evidence, that any such condition has continued since the injunction was issued. On the contrary, the affirmative finding is, “ the evidence does not satisfy us that it (dust) has been destructive of fruit and shade trees and vegetation generally since April 19, 1904. Neither does the evidence satisfy us that there has been any further depreciation of the value of petitioners’ property since the granting of the injunction, but it is nevertheless true that there has been no substantial improvement in values since that time, although real estate values elsewhere in the city not subject to similar injury have greatly increased. But the evidence shows just as conclusively that the frequency of the clouds of ore dust and the quantity escaping from the defendants’ furnaces and depositing upon plaintiffs’ property, is not in such quantities as prior to the making of the decree. A careful consideration of the evidence produced by both plaintiffs and defendants irresistibly leads to the conclusion that the clouds are not so frequent and the quantities of ore dust escaping not so great. The defendants’ witnesses, especially those of the defendants in charge of the furnaces, including the general manager, the general superintendent and the president of the company, estimate that the escape of ore dust has been lessened eighty per cent. This does not indicate what quantity escapes and is only evidence that the quantity escaping is much less than formerly.” To what this changed condition is due appears from the following taken from the opinion of the court: “ The evidence in this case shows most conclusively that neither trouble nor expense has been spared by the defendants to prevent the escape of ore dust from their furnaces, and the consequent injury to plaintiffs’ property. Every known method of operation, every experiment, however costly, has been carefully investigated and thoroughly tried to prevent the escape of ore dust. The defendants have expended for this purpose alone $285,000. The defendants, in addition to expending these large sums of money, have suffered great loss, estimated at over $200,000 in their output by shutting down their furnaces to make experiments, in reducing the capacity of their furnaces, and in the selection of coal, limestone and other material. We are satisfied that the defendants have made every effort to comply with the decree, and there can be nowhere found in the evidence anything which could be regarded as evidence of the obstinate refusal to obey the decree of the court except in so far as their operation of the furnaces at all has been a violation of the decree. These defendants, we are satisfied, have done everything human ingenuity could suggest, or human experience indicate to prevent their furnaces from emitting ore dust.”

True, the court found that the steel company is still so operating its furnaces as to cause to be emitted from them clouds of ore dust, which is cast upon plaintiffs* property, causing substantially the same kind of injury, though not as great in extent,” as before the injunction was issued. The finding is not that the same injury is being inflicted. It states just what the injury now is, viz.: the choking of rain conductors upon the houses, the discoloring of fabrics and paints and the soiling of carpets and curtains. But these are not the serious and exceptional injuries “ in the bill described and found by the court below,” to arrest which the injunction was awarded. Trees and shrubbery are no longer being destroyed, tenants are no longer being driven from the houses of the appellees; their properties are no longer being blackened, disfigured and practically destroyed and confiscated, and the depreciation in their value no longer goes on. The scope of the injunction was manifestly misunderstood by the learned trial judge. Another judge of the same court understood and properly construed it in McWilliams v. Jones & Laughlin Steel Company, as appears in his opinion filed December 4,1905. What it was intended to arrest has been arrested, and the unbearable condition to which the appellees had been subjected has been relieved, for the court so finds. If it had found that the steel company, in the operation of its furnaces, was still inflicting serious and exceptional injuries upon the appellees and the work of destruction and confiscation was still going on, the penalties imposed upon the appellants would not be too severe. This appeal must be sustained, for, on the case as presented at the hearing of the application for the attachment, the injunction would not have gone out. The finding, adjudging the appellants guilty of contempt, is set aside, and the order imposing the fines upon them is reversed, with costs.

Mr. Justice Mestrezat,

dissenting:

I regard this case as a reargument on the merits of the former case, and I submit that the majority opinion shows that this court has reconsidered this case and entered a decree reversing its former decree and denying the plaintiffs the relief which in our adjudication four years ago, after argument and reargument, we held they were entitled to. It is true that three members of the court dissented from the decree then entered, and held that the plaintiffs were not entitled to any relief; The majority of the court, however, reversing the trial court, ordered an injunction to be issued perpetually enjoining Jones & Laughlin Steel Company from such operation of its furnaces .... as to cause to be emitted therefrom clouds of ore dust, working and causing the injury to the property of the appellants as in the bill described and found by the court below.” The learned trial judge in entering the decree from which this appeal was taken, after finding the facts and correctly interpreting our decree in an exhaustive and unanswerable opinion, states in conclusion the gist of the case as follows: “ As the defendants are still causing their furnaces to be operated, so as to cause to be emitted from them clouds of ore dust, which is cast upon the plaintiffs’ property, causing substantially the same kind of injury, though not as great in extent, they have been guilty of refusing to obey the decree of the court and are to be adjudged guilty of contempt in doing so.” The opinion of the learned judge amply vindicates the decree which he entered, adjudging the defendants guilty of contempt, and, upon that opinion, I would affirm the decree of the court below.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Franklin Trust Company v. Philadelphia, Baltimore & Washington Railroad Company, Appellant.

      Common carrier — Carriers—Bills of lading — Forgery—Burden of proof —Evidence.

    In an action against a common carrier to recover for losses sustained in lending money on the faith of bills of lading which did not represent goods delivered to the carrier, where palpable forgeries and alterations appear on the face of the bills, and the agent of the carrier testifies that such forgeries and alterations were made after the bills had been signed by him and had left his hands, the burden is upon the plaintiff to explain such forgeries and alterations, and if he fails to do so, he cannot recover.
    In such a case where there is not a particle of evidence in the case to justify even an intimation of wrongdoing on the part of the agent of the carrier or his clerk, it is uncalled for and therefore error for the trial judge to suggest to the jury that they should impute no crime to the agent of the carrier or his clerk on mere inference if they could possibly avoid it.

      Common carriers — Carriers—Bills of lading — Authority of agent— Bills issued for goods not received.

    Whether the agent of a common carrier can issue bills of lading, binding upon the carrier, for goods not received, not decided: People v. New York, etc., R. R. Co., 108 Pa. 529, explained.
    A bill of lading partakes of the nature both of a receipt and a contract to carry, and in so far as it is a receipt it has always been held that it is not conclusive, but is open to explanation as between the original parties, and where the bill is marked “not negotiable" the same rule applies as to third parties.
    Bills of lading do not rest on the same footing as bills of exchange or other strictly commercial paper. Their delivery or negotiation produces no greater effect than would the delivery of the goods they represent, and the right conferred by the indorsement will be limited to that which might have been exercised by the indorsee had the goods themselves been transferred, instead of the bill.
    Argued March 23,1908.
    Appeal, No. 399, Jan. T., 1907, by defendant, from judgment of C. P. No. 2, Phila. Co., March Term, 1906, No. 3,328, on verdict for plaintiff in case of Franklin Trust Company v. Philadelphia, Baltimore & Washington Railroad Company.
    Before Mitchell, C. J\, Brown, Mesteezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for losses occasioned by relying on bills of exchange which represented no goods delivered by the carrier. Before Sulzberger, P. J.
    The court charged in part as follows :
    [The plaintiff claims that it was induced to believe that the accounts were true and existent, and that the buyers had got the goods, by the certificates of the defendant, that say the defendant had the goods for shipment to those respective persons, and was going to ship them, or had shipped them. To this I do not understand that the defendant admits that it issued these receipts, but it gives no explanation of why the goods did not reach the people, except to say “ we never got the goods.” Not to have got the goods is an excellent reason for not shipping them, but it is not ah excellent reason for issuing shipping receipts, and why the defendant issued those receipts does not to my recollection appear in the evidence. Nobody testifies why they were given. Though the man who signed them was on the stand in this court room, he does not explain why he gave the receipts. It is true another man signed two of them, but these men, after all, are only the authorized expression of the company’s power. They are confessedly the agents of the company, and it is exactly as if the company itself signed the receipts, and they do not tell us why they signed the receipts. In the absence of any explanation we have here, then, the case of the company certifying that it got the goods, and that certificate being used by the person who gets it from the company to get money from the plaintiff.
    There is, however, a third class of transactions, and those are the ones to which I alluded in the beginning, when the company gave its receipt and there was no alteration. On them the question of fact arises.
    But the plaintiff contends that all these other things were taken out of his case before he laid it before the jury, and that he is now dealing with you only on the case of. the certificates that were never altered. Respecting such certificates (if you find that this plaintiff has such certificates before you), I say to you that the defendant is liable to the plaintiff for its loss by reason of untrue certificates of shipments having been issued by it, because, as I pointed out before, there is absolutely no explanation or qualification of those certificates by the defendant. To say that it got no goods would' be a splendid reason for having issued no receipt, but, having issued the receipt, to say that it got no goods is nothing. It is absolutely without reason to say that. Can you impute to any defendant standing here a total absence of reason ? No, they do not mean to stand in that bald position. What they mean to say is this : “ We have issued this receipt. Somehow we never got the goods. We never would have issued it if we had not been somehow fooled, and there are only three people in the world that could have fooled us, Warnock, his clerk and Binz. Warnock and his clerk we trust. Binz must have done something, we do not know what, by which he perpetrated this fraud.
    What we have here is their receipt, and no explanation of how it came, provided you do not find that these were originally rightfully issued papers and altered by Binz. You, therefore, stand in this position. If these papers were rightfully issued, issued by the company, as they appear to be, then the company is responsible for having placed in the hands of Binz a weapon of deceit with which to cheat any ordinary mortal, and that not because the paper is negotiable in any legal sense or has any element of negotiability, but because it is against common right to issue weapons of offense and place them in the hands of people with which to hurt others.] [3]
    [Can you impute to any defendant standing here a total absence of reason ? No. They do not mean to stand in that bald position. What they mean to do is to say this: “ We have issued this receipt. . Somehow we never got the goods. We never would have issued it if we had not been somehow fooled, and there are only three people in the world that could have fooled us, Warnock, his clerk and Binz. Warnock and his clerk we trust. Binz must have done something, we do not know what, by which he perpetrated this fraud. What ?] [4]

      [What could Binz have done? How could Binz perpetrate the criminality of signing War nock’s name which Warnock signed himself? That is what we do not know. Warnock and his clerk both signed the names. What could Binz have done? He could have done something if Warnock and his clerk had signed a batch of these things and handed them to Binz in blank, so he could fill them up. But we cannot say that because Warnock and his clerk are innocent. He might have done something else, Warnock might have had leisure time one evening, and sat down and signed a bunch of these in blank, and locked them up in his desk, and then Binz might have committed a burglary and got them and used them after-wards, but there is no such evidence. If that had happened, they would know. Where is the evidence ?] [5]
    Verdict and judgment for plaintiff for $14,146.57. Defendant appealed.

      E. J. Sellers, of Sellers ds Rhoads, for appellant.
    The agent Warnock was called by plaintiff and the latter was bound by his testimony. He testified that the receipts were true and correct when issued, but that they were subsequently altered, and, consequently, were forgeries. This testimony rebutted any inference that he had done anything wrong or had been a party to any wrong. His testimony, the only testimony of positive character, showed honesty on his part. As the altered documents referred to fictitious shipments, of course, the merchandise was never received and,, consequently,, defendant never became liable for such fiction.
    The following case is directly in point: Roy & Roy v. Northern Pacific Railway Company, 6 L. R. A. (N. S) 302.

      Alex. Simpson, Jr., with him Alfred Aarons and Henry N. Wessel, for appellee.
    If an agent with authority to issue bills of lading for goods received for shipment, issues such bills when no goods were in fact received, the principal is not released from all liability solely by reason of that fact: Brooke v. N. Y., etc., R. R. Co., 108 Pa. 529; American Car & Foundry Co. v. Water Co., 218 Pa. 542; Story on Agency, 126, 127, 443; Tanner v. R. R. Co., 53 Pa. 411; Adams Express Co. v. Schlessinger, 75 Pa. 246; Hubbard v. Tenbrook, 23 W. N. C. 351; McNeile v. Cridland, 168 Pa. 16; Sioux City, etc., R. R. Co. v. Bank, 10 Neb. 556 (7 N. W. Repr. 311); Armour v. R. R. Co., 65 N. Y. 111; Bank of Batavia v. R. R. Co., 106 N. Y. 195; Sears v. Wingate, 85 Mass. 103; Smith v. Ry. Co., 74 Mo. App. 48; Tibbits v. Ry. Co., 49 Ill. App. 567; R. R. Co. v. Larned, 103 Ill. 293; Ry. Co. v. Adams, 4 Kansas App. 305.
    If a nonnegotiable bill of lading is issued when no goods have been received, the defendant is liable to innocent third parties who have parted with their money in reliance upon the averments contained in the bill: Fifth Ave. Bank v. R. R. Co., 137 N. Y. 231 (33 N. E. Repr. 378); Dock v. Boyd, 93 Pa. 92; Atkins v. Payne & Co., 190 Pa. 5.
    It has been many times decided, however, that at the common law, bills, while not negotiable in the same sense that promissory notes are, are none the less quasi-negotiable, run in favor of assigns, and will pass by assignment or indorsement, carrying thereby the title of the goods to the assignee or indorsee: Gates v. R. R. Co., 42 Neb. 379; Pollard v. Reardon, 65 Fed. Repr. 848; Schumacher v. Eby, 24 Pa. 521; Empire Transportation Co. v. Steele, 70 Pa. 188; Hieskell v. Bank, 89 Pa. 155; Bache v. Philips, 155 Pa. 103.
    Indeed, it has also been repeatedly said that title thereto, and to the goods named in the bill, will pass by delivery of the bill, without assignment or indorsement, if such appears to have been the intention: Holmes v. Bailey, 92 Pa. 57; Holmes v. Bank, 77 Pa. 525; Richardson & Co. v. Nathan, 167 Pa. 513; Sloan v. Johnson, 20 Pa. Superior Ct. 643.
    June 23, 1908 :
   Opinion by

Mr. Justice Potter,

The record in this case discloses a most unusual state of affairs. It appears that the factory of the R. E. F. Binz Carpet Corporation was located at Glen Riddle, Pa., and its manufactured product was shipped on the railroad of the defendant company, from Glen Riddle station. The method of shipping was as follows: When goods were ready for delivery to the railroad, to be transported, the consignor made out a shipping order, containing a description of the articles to be shipped, the name of the consignee, and the destination. This was handed to the agent of the common carrier to be retained by him. The agent of the railroad then made out and signed and gave to the shipper a bill of lading intended to be forwarded to the consignee, and supplied also a memorandum copy of the bill of lading which was intended to be retained by the shipper. As a matter of precaution, and of easy identification, the railroad company had the shipping orders printed on blue' paper, the bills of lading upon white paper, and the memorandum copies of the bills of lading upon pink paper. The bills of lading bore the words “Not Negotiable” plainly printed across the ends, and were not negotiable instruments. It appears further that the common practice is for the shipper to fill up the shipping order, and the blanks in the bill of lading and its copy in advance, and by the use of carbon paper inserted between the pages the three papers can be filled out at one and the same writing; the bill of lading and its memorandum copy requiring the signature of the agent of the common carrier to complete them. In the present case the Binz Carpet Corporation sold its goods upon a credit of three or four months’ time, and in the course of its business it arranged with the plaintiff, the Franklin Trust Company, to borrow money from it, by assigning to it the accounts of its* customer and procuring an advance thereon. In arranging for the loans, a statement of the account would be made out upon the' bill head of the corporation, and an assignment of the account would be placed upon the sheet, with a notice that it was payable to the Franklin Trust Company. And as evidence that the goods which were the subject of the account had been actually shipped to the customer, the carpet corporation would, according to the testimony of the president of the trust company, turn over to the trust company the original bill of lading and the memorandum copies thereof; and the original bills of lading were, it is said, generally forwarded to the consignees with a notice that the account had been assigned to and was payable to the trust company.

The plaintiff states that between October 17 and December 23, 1905, it loaned in this way the sum of $12,771.70 to the carpet corporation, relying upon the shipping receipts as evidence of the shipment by the carpet corporation of the goods which were made the basis of the accounts. The shipping, receipts were nonnegotiable, and the trust company did not depend upon them to retain title in itself to the goods; for it sent the receipts at once to the consignees, and relied for its security as to the loan upon the financial standing of the carpet corporation, and the consignees of the goods from whom payment of the accounts was to come. No satisfactory explanation is found in the testimony as to why there should have been such long delay, from October until January, upon the part of the trust company in obtaining acknowledgments from the consignees of the assignments and of the correctness of the accounts and of their acquiescence in the transfer. It will be seen that the use of the bills of lading in this case was very different from that of the ordinary commercial transactions in which bills of lading representing shipments of goods are attached to a sight draft, which must be accepted or paid before the bills of lading are turned over to the consignee, and where neither title to nor possession of the goods can be had without the transfer of' the bills of lading. In such case the bill of lading is regarded as the symbol of the goods or property and as the real security for the money advanced, and the credit of the consignee does not enter into the transaction. But here the bills of lading were only regarded by the trust company as evidence that the goods had been received for transportation by the common carrier, and the bills of lading were at once forwarded to and surrendered to the consignee with the expectation that the goods would be at once delivered- to them upon arrival, although a considerable term of credit was yet to elapse before payment for them was to be made by the consignee.

Some time in the month of January, 1906, the plaintiff discovered that no goods for which these receipts or memorandum copies of the bills of lading purported to have been given, had ever been delivered to the defendant company for shipment, and that the papers in question were fraudulent and represented purely fictitious shipments. The carpet corporation was found to be insolvent, and R. E. F. Binz, its president and treasurer, who had used the bills of lading to aid his fraudulent purpose in procuring the loans, committed suicide. The trust company then brought this action against the railroad company to recover the amount of its loss, occasioned by the loans it made on the credit of the accounts supposed to have been created by the shipment of the goods set forth in the fraudulent bills of lading.

At the trial of the case counsel for defendant company asked for binding instructions in its favor upon the ground, among other things, that the receipts upon which suit was brought were forgeries made by Binz, the treasurer of the carpet corporation. The request was refused and the case was submitted to the jury, who found a verdict for the full amount of the plaintiff’s claim, with interest.

The court below also overruled a motion for judgment non obstante veredicto, and discharged a rule for a new trial and entered judgment upon the verdict. The defendant company has appealed, and in its third, fourth and fifth assignments has complained of error in certain portions of the charge of the trial judge. And in the sixth assignment error is alleged in the refusal to enter judgment for the defendant non obstante veredicto.

A careful examination of the record and of the testimony and of the exhibits in this case, has satisfied us that the trial judge entirely failed to appreciate the significance of the evidence. He certainly could not have personally examined the papers offered in evidence as alleged memorandum copies of the bills of lading, or he would not, as he did in his charge, have placed the burden upon the defendant company of explaining palpable forgeries and alterations which appear upon the face of the papers. For instance, he says : “ The plaintiff claims that it was induced to believe that the accounts were true and existent, and that the buyers have got the goods, by the certificates of the defendant, that say the defendant had the goods for shipment to those respective parties and was going to ship them or had shipped them. To this I do not understand that the defendant makes any reply.” This statement indicated a serious misunderstanding of the situation. The agent of the defendant company testified that all shipments as made were noted in his manifest book, and that the memorandum copies of the bills of lading which were shown to him at the trial were false, in so far as they differed from the entries in the manifest book. He also testified that in some of the memorandum copies which were offered in evidence the figures were raised in amount over those which were upon the paper as it was signed by him. Notwithstanding this explanation by the agent as to the fact and the manner in which the memorandum copies were altered and turned into forgeries, the court goes on to tell the jury that the agent had given no explanation as to why he gave the receipts. It was not the place of the agent to explain these alterations in the memorandum copies. He had testified clearly that alterations were made and figures were raised in the papers after they had been signed by him and had left his hands. In such a case the burden was clearly upon the plaintiff to explain these matters, and the jury should have been so instructed, and, if any comment were to be added, it should have been to call the attention of the jury to the fact that the plaintiff had failed to explain the alterations, and that, unless it did so, there could be no recovery. It is true that in other portions of the charge the trial judge intimated that the jury might find that the papers, when originally issued, were rightful, and that they were afterwards altered by Binz, but he dealt so much at arm’s length with this aspect of the case that the effect of the charge, as a whole, upon the minds of the jurors must have been to impress them with the idea that the duty of explanation of the alterations was upon the defendant company or its agent. Then the learned judge goes further in his charge than the testimony warrants, in his suggestion to the jury that they should impute no crime to the agent of the defendant company or to his clerk on mere inference, if they could possibly avoid it. There was no excuse whatever for putting the matter in this way, for there is not a particle of evidence in the case to justify even an intimation of wrongdoing on the part of the agent or his clerk ; and, on the contrary, Binz, the treasurer of the corporation, was. conclusively shown to be a rogue.

Counsel for appellee admits that Binz did perpetrate fraud upon the trust company in many of the accounts assigned, but he contends, and the testimony of the president of the trust company is, that the fraudulent papers were not included among the list of those for which recovery in this case was obtained. But this is clearly a mistake. The recovery was for the full amount of all the items contained in the schedule, marked exhibit “ A,” and aggregated the sum of $12,771.70, and this amount, with interest, was the verdict awarded by the jury, and it includes many of these altered and raised papers. A detailed examination of the alleged memorandum copies of the bills of lading offered in support of these items shows in many, if not in most of them, the most glaring and palpable instances of fraudulent alteration of figures in the numbers of the articles written into the paper, and above the signature of the agent of the defendant company. In all these cases the burden was upon the plaintiff of showing just how and when, and by whom, these alterations were made. It is apparent that the only satisfactory way to do. this would be to produce the original bill of lading in each case, and the shipping order, and compare them with the alleged memorandum copy to see if all three of the papers agreed ; for, according to the testimony, they all having been made at the same time, and with carbon paper, the shipping order, bill of lading and memorandum copy should have agreed precisely. If there was a difference it was for the plaintiff to explain.

An inspection of the alleged memorandum copies of the bills of lading, and in some instances of the alleged original bills of lading, attached to the accounts which are made the basis of this suit, reveals many transparent and palpable changes. Thus the figure 1 is sometimes altered into a figure 1; sometimes into a 9, and sometimes into a 4, and in one case by adding a tail to it, into a 5. Again the figure 1 is inserted before the figure 5, turning 5 into 15; again the figure 2 is inserted before a 5, thus raising the amount from 5 to 25; again an 0 is inserted after the figure 5, thus multiplying it by 10, and changing it into 50. In the majority, if not in all of the items going to make up this schedule, for which recovery was here obtained, alterations of one kind or another seem to have been made, and they were so palpable that the burden of explanation and of comparison with the original bill of lading and shipping order was certainly upon the plaintiff. W e can only account for the failure of the trial judge to place the burden in this respect where it belonged, upon the supposition that he did not make any personal examination of the alleged memorandum copies of the bills of lading offered in exhibit “ A.”

The third, fourth and fifth specifications of error are sustained.

Of course, if the bills of lading upon which this suit is based, were all forged or altered, they are invalid and no recovery whatever can be had. But another question is raised in this case, and that is as to the effect upon the liability of the defendant company, of nonnegotiable bills of lading, in the hands of a third party who was misled by them, and where the bills of lading were issued through the negligence or mistake of the agent, when no goods were actually delivered to the company for transportation. It is contended by counsel for appellee that in such case, the defendant company would be estopped from showing that no goods were in fact received for transportation, and in support of this view the decision in Brooke v. New York, etc., R. R. Co., 108 Pa. 529, is cited. In that case, however, it does not appear that the bill of lading was nonnegotiable, but at any rate the transaction arose in the'state of New York, and the decision avowedly followed and was controlled by the law of New York. But the view taken of this question by the courts of New York is directly opposed to the overwhelming weight of authority which holds that the master of a vessel or the agent of a common carrier has no authority to issue bills of lading for goods which have not been received. And that as a consequence if the agent of the carrier fraudulently or inadvertently issues a bill of lading for goods which have not been received, he cannot be considered as acting within the scope of his authority, and the bill of lading so issued is void. The decisions of the English courts are uniformly to this effect, and hold that even as against a bona fide consignee or indorsee for value, the carrier is not estopped by the statements of the bill of lading issued by the agent, from showing that no goods were in fact received for transportation. The same rule applies in Canada, and it is the established doctrine of the supreme court of the United States and of the federal courts, and in many of the state courts. There has been much conflict over this question, but over and over again it has been pointed out in the decisions that a bill of lading partakes of the nature both of a receipt and a contract to carry; and in so far as it is a receipt, it has always been held that it was not conclusive,' but was open to explanation as between the original parties. In the present case, the bills of lading were not negotiable instruments; the defendant company took the pains to limit its responsibility as regards third parties, by printing across the bill the notice that it was “Not Negotiable.” But, aside from that fact, bills of lading do not occupy the position of bills of exchange or other commercial paper. This court, speaking by Thompson, O. J., in Empire Transportation Co. v. Steele, 70 Pa. 188, said: “ Lord Loughborough in Mason v. Lichbarrow, 6 East. 21, delivering 'the opinion of the Exchequer Chamber, held that the indorsement of bills of lading had never been regarded in the commercial law as resting on the footing of bills of exchange or other strictly commercial paper; that inquiry was a duty, and consequently that the indorsee took such paper on the credit of the indorser. So is the case of Kingsford v. Merry, 11 Exch. 577. In the Mechanics’ Bank v. New York & New Haven R. R. Co., 13 N. Y. 599, and in Mower v. Peabody, 13 N. Y. 121, the same thing is contained, in the principle announced that as a bill of lading is a mere symbol, its delivery or negotiation produces no greater effect than would the delivery of the goods it represents, and that the right conferred by the indorsement will be limited to that which might have been exercised by the indorsee had the goods themselves been transferred, instead of the bill.” And in the opinion of the supreme court of the United States, in Friedlander v. Texas, etc., Ry. Co., 130 U. S. 416, it is said : “Bills of exchange and promissory notes are representatives of money, circulating in the commercial world as such, and it is essential, to enable them to perform their peculiar functions, that he who purchases them should not be bound to look behind the instrument, and that his right to enforce them should not be defeated by anything short of bad faith on his part. But bills of lading answer a different purpose, and perform different functions. They are regarded as so much cotton, hay, iron or other articles of merchandise, in that they are symbols of ownership of the goods they cover.”

In Bank of Batavia v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 195, speaking of the liability of the common carrier upon a bill of lading, the court says (p. 200): “ If he desires to limit his responsibility to the named consignee alone, he must stamp his bills as £ nonnegotiable; ’ and where he does not do that he must be understood to intend a possible transfer of the bills, and to affect the action of such transferees.” This would seem to be an intimation that the New York courts would, not hold the carrier estopped from showing the truth with regard to the nondelivery of the goods when a bill of lading stamped “ not negotiable ” was found in the hands of a third party. But, however that may be, in view of the fact that this case is to go back for another trial, we have called attention to these authorities in order that the decision in Brooke v. New York, etc., R. R. Co., 108 Pa. 529, may not be regarded as declaring the law of Pennsylvania. It is conclusive only as to its own facts, and as applying to them the law of the state of New York, where the transaction occurred. It is not to be regarded as decisive of the law of Pennsylvania in a case where by mistake or fraud a nonnegotiable bill of lading is issued, when no goods have been received for shipment and the bill of lading is transferred to third parties. In such case the question is to be regarded as at least an open one in Pennsylvania. In the present case the judgment of the court below is reversed, and a venire facias de novo is awarded.


author: Mr. Chief Justice Mitchell,

text:
    Fox’s Estate.

      Will — Construction of — Trust and trustees — Survivor.
    Testator gave his estate to trustees in trust for his four daughters, the income to be paid one-fourth to each for life, and upon the death of any of the daughters leaving issue, the principal to be granted and assigned to such issue, “and in case of the death of any of my said daughters without lawful issue then upon the further trust that they the said .... trustees shall hold the share of such deceased daughter in trust for the use and benefit of her surviving sisters in the same and like manner as is hereinbefore expressed and declared of and concerning the respective share of her said surviving sisters.” Two of the daughters died leaving children, and their shares were distributed to their children. A third daughter afterwards died leaving no issue. Held, that the share of the third daughter did not go to the surviving sister, but should be distributed one-third to the surviving sister, and the remaining two-thirds to the children of the deceased sisters per stirpes.
    The words “survivor” or “surviving” will be understood as the equivalent of “other,” where in any other sense it would lead to an intestacy, or to inequality among those standing in the same degree of relationship to the testator, or to a distribution not in accordance with the general scheme of the will in its entirety.
    In the above case it is not necessary to resort to the artificial and arbitrary construction that “survivors” meant survivors at the testator’s death. The time in testator’s mind-was clearly the death of each daughter dying without issue, but he did not mean to make the shares of any group of his grandchildren dependent on the accident of their mother’s survival of her childless sister. The word “other” very clearly expresses his general intent and that is the sense in which he used the word survivors.
    Argued March 25, 1908.
    Appeals, Nos. 7 and 8, Jan. T., 1908, by Columbus "W". Gabell, Jr., substituted trustee for Hannah L. Lindsey under the will of Charles Fox, deceased, and Catharine H. Chestnut, from decree of O. C. Phila. Co., April T., 1888, No. 107, dismissing exceptions to adjudication in Estate of Charles Fox, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that Charles Fox, by his will probated May 28, 1853, directed as follows :
    “ Item.- — I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed whatsoever and wheresoever and of which I may die seized or possessed unto my Father-in-law John Hagy and my friends Jacob B. Eckfeldt and George Gardom and unto the survivor or survivors of them and the heirs executors, administrators and assigns of such survivor To Have and To Hold the same unto the said John Hagy, Jacob B. Eckfeldt and George Gardom and unto the survivor or survivors of them and the heirs, executors, administrators and assigns of such survivor In Trust nevertheless to and for the following uses, intents and purposes that is to say, to collect and receive the rents, issues and profits thereof and apply so much of the same to the support, maintenance and education of my four daughters, viz.: Sally Ann Fox, Hannah L. Fox, Catharine H. Fox and Anna Margaretta Fox as may be necessary for that purpose and in the same manner as they are now supported and educated until my eldest daughter living shall arrive at and attain the age of twenty one years then upon the further Trust to choose and appoint five disinterested persons to value, divide and apportion the said estate in equal parts or shares between my said Four daughters Sally Ann Fox, Hannah L. Fox, Catharine H. Fox and Anna Margaretta Fox and the issue of such of them as may be deceased leaving lawful issue such issue to be entitled to the share which his, her or their Mother would have been entitled to if living. If more than one as tenants in common and not as joint tenants.
    “ And upon the further Trust to hold the Estate so divided in Trust to pay over the whole of the income of the share of the said eldest daughter living into her own hands for her own proper use without being responsible for the debts or engagements of any husband she may have and to continue to apply so much of the income of the shares of my other daughters for their maintenance, support and education as may be necessary for that purpose in the same manner as they are now supported and educated until they respectively arrive at the age of Twenty one years from which time the whole of the income of their respective shares accruing thereafter shall be paid to them into their own proper hands for their own proper use without being responsible for the debts or engagements of any husband or husbands they or any of them may have and in case of the decease of any of my said daughters leaving lawful issue then upon the further Trust that they the said John Hagy, Jacob E. Eckfeldt and George Gardom Trustees as aforesaid or the survivors or survivor of them and the heirs, executors, administrators and assigns of such survivor shall grant, convey and assure the said share of such deceased daughter and the absolute estate inheritance and fee simple thereof unto the lawful child or children and unto the lawful issue of such of them as may be deceased leaving lawful issue their heirs and assigns forever to be equally divided between them if more than one share and share alike as tenants in common and not as joint tenants and if but one such child then to the use, benefit and behoof of such child his or her heirs and assigns forever and in case of the death of any of my said daughters without leaving lawful issue then upon the further Trust that they the said John Hagy, Jacob R. Eckfeldt and George Gardom Trustees as aforesaid or the survivors or survivor of them and the heirs, executors, administrators and assigns of such survivor shall hold the share of such deceased daughter in trust, for the use and benefit of her surviving sisters in the same and like manner as is hereinbefore expressed and declared of and concerning the respective share of her said surviving sisters and upon the further Trust that it shall and may be lawful and I do hereby authorize and empower the said John Hagy, Jacob R. Eckfelt and George Gardom Trustees as aforesaid and the survivors and survivor of them and the heirs, executors and administrators of such survivor to let on Ground Rent or to sell and dispose of at any time after my decease all or any part of my real estate either at public or private sale for the best price or prices that can be had for the same and to make, execute, sign, seal, acknowledge and deliver good and sufficient deed or deeds of conveyance or assurance in the law so as to vest the same and the title thereof in the purchaser or purchasers thereof in fee simple or otherwise.”
    Two of the daughters died, each leaving issue her surviving, to which issue, in the case of each daughter, the principal of her original share was duly conveyed.
    The daughter Hannah, who became the wife of one Andrew Lindsey, died on February 18, 1903, without issue. The only surviving sister was Catharine H. Chestnut, a widow.
    The share of Hannah was claimed by the trustee of Catharine. It was also claimed by Catharine herself.
    The court directed the same to be divided into three parts and ordered the same to be paid, one-third to the trustee for Catharine; one-third to each descendant of each of the-daughters who had first died.
    Exceptions filed by the trustee of Catharine and by Catharine herself, were dismissed.

      Errors assigned were in dismissing exceptions to adjudication.

      John G. Johnson, with him Frederick L. Breiünger, for appellants,
    cited: Woelpper’s App., 126 Pa. 562.

      Daniel A. Stewart, for appellee,
    cited: Johnson v. Morton, 10 Pa. 245; Ross v. Drake, 37 Pa. 373; Bacon’s Est., 202 Pa. 535; Vance’s Est., 209 Pa. 561; Vogdes’s Est., 16 Pa. Dist. Rep. 377.
    June 23, 1908:
   Opinion by

Mr. Chief Justice Mitchell,

The general intent apparent throughout the scheme of the will was to make equality among his daughters during their lives with remainder to the children of those leaving issue. In pursuance of this intent the estate was to be held as a unit until the oldest daughter should come of age and then severed as to her, and so on to each daughter in turn until the youngest reached full age when there would be four separate trusts, one for each daughter in severalty. If one of the daughters had died without issue before any severance there can be no doubt that the others would have taken her share as survivors by the express terms of the will. If such daughter died after her share had come to be held separately the direction of the will is the same and the others would have taken as survivors. But if the daughter first dying left issue her share would be distributed to them and it is argued that then they would have received their full share, their claims under the will would have ended and they would be excluded from participation in the share of another daughter subsequently dying without issue. As was forcibly said by Judge Penrose : “ If the word ‘ surviving,’ as used by the testator, is to be understood in its precise, literal sense, it necessarily follows that while he made careful provision for his grandchildren, giving to them the ‘inheritance and fee simple ’ of the shares originally held in trust for their mother, whose interest was expressly confined to the term of her life, he intended that only the children of a daughter who survived a sister who left no issue should share in the distribution of the part held in trust for her, and to exclude all others; and it also follows that he must have intended if the last survivor of his daughters should die without issue, even though all his'other daughters had left children still surviving, there would be an intestacy.”

But this result is clearly not in harmony with the general intent and scheme of the testator. He treated all his daughters alike, gave each one-fourth of his estate for life with remainder to her issue. Not one of them was vested with power -to break the succession of her issue in remainder and nowhere is there any indication that he intended to make any distinction among his descendants of the second generation as to their ultimate share in his estate. That the issue of a sister dying first should thus be cut off from participation in the share of a sister dying subsequently without issue, would be giving an accidental and irrelevant fact an effect contrary to the manifest general intent and an exercise of the power withheld from the daughters themselves. As said by the auditing judge below: “ It is well settled, however, that the word survivor or surviving, will be understood as the equivalent of ‘other,’ where in any other sense it would lead to an intestacy or to inequality among those standing in the same degree of relationship to the testator, or to a distribution not in accordance with the general scheme of the will in its entirety: Lapsley v. Lapsley, 9 Pa. 130; Williams on Executors, 1577; Theobald on Wills, 355. See also Vance’s Estate, 11 Pa. Dist. Rep. 197; s. c., 209 Pa. 561; Park’s Estate, 21 W. N. C. 227; Hubbert’s Estate, 6 Pa. Dist. Rep. 96; Vogdes’s Estate, 16 Pa. Dist. Rep. 377; Lewis’ Appeal, 18 Pa. 318, etc.”

It is not necessary to resort to the artificial and arbitrary construction that “ survivors ” meant survivors at the testator’s death. ^The time in testator’s mind was clearly the death of each daughter dying without issue, but he did not mean to make shareskrf any group of his grandchildren dependent on the accident ofi their mother’s survival of her childless sister. The word “ othek” very clearly expresses his general intent and that is the sense inxwhich he used the word “ survivors.”

Decree affirmed.