author: Mr. Justice Potter,

text:
    Grange, Appellant, v. Penn Mutual Life Insurance Company.

      Insurance — Life insurance — Mutual policy — Premium notes— Sharing in Profits — Equity.
    1. Where a mutual life insurance policy containing a clause for sharing in surplus profits provides for punctual payment of premiums in cash, but does not forbid the taking of premium notes by the company, and does provide that “all outside liability under this policy shall be first paid off before paid up insurance shall be issued in its place,” the holder of the policy cannot object that the company accepted premium notes, on other policies of the same class, where it appears that such notes were always taken before the premiums were due, and there is no evidence of any default in payment on them.
    2. Where the holder of such a policy files a bill in equity for specific performance of his contract of insurance, and for an accounting of apportioned surplus or profits, the plaintiff cannot complain that his share of the surplus was reduced by the acceptance by the company of premium notes, before premiums were due, inasmuch, as, even if the acceptance of the premium notes was not in accordance with the express terms of the contract, it would be impossible to ascertain the damage, if any, which plaintiff suffered because of such violation, for there would be no way of determining which, or how 'many, of those who gave premium notes would have managed to pay the premium in cash, if the company had refused to accept the notes.
    3. Where a mutual insurance policy provides that “the surplus derived from all policies on this plan which shall not be in force by payment of premiums as above specified, at the date of the completion of their respective accumulated surplus periods, shall be apportioned equitably among such policies only as shall complete” the period, and a court of equity on a bill for specific performance of the contract and for an accounting finds as a fact upon sufficient evidence that the officers of the company properly and without fraud apportioned the surplus, the appellate court will not at the instance of a policyholder reverse such finding where there is sufficient evidence to justify the finding.
    4. A mutual insurance company cannot discriminate among its policy holders, and any agreement which would result in the payment of larger proportionate dividends to one of its policy holders than to others in the same class would be illegal and void.
    5. Statements made by the assistant secretary of a mutual life insurance company to a proposed insurer to the effect that a certain amount would be realized to the insured upon a distribution of surplus profits at the expiration of the payments on the policy, are not binding upon the company, especially where it appears that the statements were based on past experience with some basis of fact, and that the statements although rose-colored were not in fact fraudulent.

      Equity — Accounting—Interrogatories.
    6. A decree in equity will not be reversed because of the refusal of the court below to compel a defendant insurance company to answer certain interrogatories in advance of the trial, where it appears that the subject matter of the interrogatories was brought out at the trial by the examination of the defendant’s officers, and that certain of the interrogatories were of such a nature that an answer to them would have been equivalent to the rendering of an account in advance of a decree awarding it.

      Equity — Insurance companies — Accounting—Bight of policy holders.

    7. In a proper case a policy holder in a mutual insurance company has a right to an accounting' of the moneys of the company to which he is entitled under his contract, and he is not to be dismissed with the statement that he is bound by the actions of the trustees of the company; but he will not be awarded a decree where the court finds as a fact that the trustees have acted in good faith and in accordance with the contract and the law.
    Argued January 17, 1912.
    Appeal, No. 216, Jan. T., 3911, by plaintiff from decree of C. P. No. 1, Pbila. Co., Dec. T., 1907, No. 2906, on bill in equity in case of Charles E. Grange v. The Penn Mutual Life Insurance Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for specific performance for an account, and for discovery. Before Kinsey, J.

      The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree of the court.

      J. H. Shoemaker, for appellant.
    The effect of the company’s actions was to change the character of the policy from an accumulated surplus policy on which premium should be paid in cash, and from which, for that reason, profits to surviving, punctual policy-holders are greater than from any other form of policy, to one on which premiums could be paid by notes. The company had no right to alter the plan of insurance.
    The company has the right to regulate its internal affairs and provide for their management and administration, but as between the company and the insured it is bound by its contract: Fire Ins. Co. of Northampton County v. Connor, 17 Pa. 136; Rosenberger v. Wash. Mut. Fire Ins. Co., 87 Pa. 207; Lavalle v. Societe Saint Jean Baptiste de Woonsocket, 17 R. I. 680; Fuller v. Metropolitan Life Ins. Co., 37 Fed. Repr. 163; Pierce v. Equitable Assurance Society, 145 Mass. 56, 12 N. E. Repr. 858.
    The distribution of surplus among all participating policy holders and retention of part by the company in a contingent fund was improper: Pierce v. Assurance Society, 145 Mass. 56, 12 N. E. Repr. 858; Uhlman v. Ins. Co., 109 N. Y. 421, 17 N. E. Repr. 363; Greeff v. Equitable Life Assur. Soc., 160 N. Y. 19, 54 N. E. Repr. 712; Equitable Life Assur. Soc. v. Brown, 213 U. S. 25, 29 Sup. Ct. Repr. 404; Gadd v. Equitable Life Assur. Soc., 97 Fed. Repr. 834.
    The company was liable for its officers’ misrepresentations: Holden v. Bernstein Mfg. Co., 232 Pa. 366; McGowin v. Remington, 12 Pa. 56; Winton’s App., 97 Pa. 385; Russell v. Clark, 11 U. S.. 69;. Virginia & Ala. Min. & Mfg. Co. v. Hale, 93 Ala.. 542, 9 So. Repr. 256; Wilkinson v. Starr, 14 W. N. C. 359; Jones v. Farquhar, 186 Pa. 386; Hindman’s App., 85 Pa. 466.
    The refusal of court to order company to answer interrogatories and to sustain plaintiff’s exceptions to company’s answer to bill was improper: Black v. Ins. Co., 16 Phila. 72; Gillingham v. Baker, 22 Leg. Int. 117; Paper Co. v. Hincken, 21 W. N. C. 227; Bains v. Goldey, 35 Pa. 51.
    G. W. Pepper, with him B. F. Pepper, for appellee.
    The acceptance of premium notes involved no violation of the contract with Grange and did him no ascertainable damage.
    The company gave Grange a square deal and distributed to him at least as much of the surplus as he was fairly entitled to: McNab v. Mfg. Co., 62 Hun. 18, 16 N. Y. Supp. 448; McLean v. Plate Glass Co. 159 Pa. 112.
    Regarding Hallowell’s estimate as constituting an undertaking to pay dividends in excess of earnings, the contract was absolutely invalid and cannot be enforced: Taft v. R. R. Co., 8 R. I. 310; Lockhart v. Van Alstyne, 31 Mich. 76; Painesville & Hudson R. R. Co. v. King, 17 Ohio St. 534; Luling v. Ins. Co., 45 Barb. 510.
    Regarding Hallowell’s estimate as the basis of a claim in deceit, the evidence shows that his reference to past experience was made in good faith, and without intention to deceive; while the estimate of anticipated dividends was such a statement respecting future facts as will not support an action for deceit: Emerson v. Brigham, 10 Mass. 197.
    The decision of the court below, sustaining the appellee’s refusal to answer interrogatories, was clearly right: Equitable Life Assurance Society v. Brown, 213 U. S. 25, 29 Super. Ct. Repr. 404; Uhlman v. New York Life Insurance Co., 109 N. Y. 421, 17 N. E. Repr. 363; Everson v. Equitable Life Assurance Soc., 68 Fed. Repr., 258, 71 Fed. Repr. 570; Hunton v. Equitable Life Assurance Society, 45 Fed. Repr. 661; Gadd v. Equitable Life Assurance Society, 97 Fed. Repr. 834; Holland v. Hallahan, 211 Pa. 223.
    March 18, 1912 :
   Opinion by

Mr. Justice Potter,

The plaintiff filed this bill in equity against the defendant, The Penn Mutual Life Insurance Company of Philadelphia, praying for specific performance of a contract of life insurance in accordance with its terms, and for an accounting, and for discovery in aid of his proof. The policy in question was issued by the defendant company to the plaintiff on December 1, 1891, for $25,000, on what was known as the “accumulated surplus” plan. The annual premium was $1,516.50, to be paid during a period of ten years, and it was stipulated that the accumulated surplus period, extending over fifteen years, should end on November 27, 1906. It was provided that upon the completion of this period, if the policy should then be in force, by payment of the premiums as specified, the insured should have the privilege of exercising certain options therein set forth.

It appears that the plaintiff made payment of the ten annual premiums according to the terms of the policy, and at the expiration of the fifteen year period, on November 27, 1906, he accepted one of the options secured to him in the policy, which permitted him to withdraw the accumulated surplus apportioned to the policy, and take a full paid policy for the sum of $25,000. The defendant company offered to pay him as his share of the apportioned surplus, the sum of $3,347.15. The plaintiff declined to accept this amount, claiming that he was entitled to the sum of $7,800, in accordance with an estimate which was given to him by an officer of the company when he negotiated with it for the policy. Plaintiff alleges in his bill that he was induced to take the policy by reason of this estimate, and through representations made to him by the assistant secretary of the defendant company, that the estimate was not inflated, but was based upon past experience of the company.

In the answer filed by the defendant company, it is averred that the company had no knowledge of the representations said to have been made by the assistant secretary, and it was denied that he had any authority to make any statements or representations that amounted to a guaranty. It was admitted that the accumulated surplus on such a policy as was afterwards issued to the plaintiff had been estimated by the assistant secretary at $7,800, and that the estimate was accompanied by a statement that the defendant company did not furnish “inflated estimates.” It was averred that the sum of $8,347.15 was plaintiff’s full portion of the accumulated surplus, and that the defendant had submitted to the plaintiff an account, showing how that sum was made up, and it was further averred that the defendant has accounted for the dividends, profits and portion of the surplus to which plaintiff is entitled. At the trial the defendant’s eighteenth and nineteenth requests for findings of fact were affirmed by the trial judge as follows:

“(18) The sum of $3,347.15 tendered by defendant to plaintiff, includes his full and fair share of the earnings of the company during the term of his policy, and also of the company’s surplus and the fund resulting from the forfeiture of other policies in his class.”

“(19) The evidence shows that the dealings of the defendant with the plaintiff have been characterized by fairness and good faith on the part of the defendant.”

And among other requests for findings of law by the defendant the trial judge affirmed the following:

“(6) The option which the plaintiff has elected to exercise is to take a paid-up participating policy for $25,000 and ‘to withdraw the accumulated surplus apportioned to this policy by the company.’ The plaintiff, in the absence of evidence of fraud or irregularity in the procedure of the trustees of the defendant, is bound by the language of the policy and is not entitled to review their action in determining the amount of the dividend awards.”

“(7) The plaintiff having availed himself of his option to withdraw his proportion of the accumulated surplus ‘apportioned to this policy by the company/ and to accept a paid-up participating policy for $25,000, the company has fully performed its part of the contract with the plaintiff by tendering him such a policy and the sum of $3,347.15 in cash.”

The trial judge then directed that the bill be dismissed. But upon consideration of exceptions filed, the court below ordered and decreed that the amount of $3,347.15, admitted to be due plaintiff, should be paid, and that a paid-up policy for the sum of $25,000 should be delivered to him, and that all other exceptions filed by plaintiff should be dismissed. Plaintiff has appealed, and has filed ninety-eight assignments of error.

The policy provided that the surplus derived from lapsed policies should be apportioned equitably among such policies only as shall have completed the accumulated surplus period. Appellant is dissatisfied with the amount of the surplus which, under this provision, was apportioned to his policy by the company, and he bases his claim for an accounting and for relief on three grounds: (1) That the defendant violated its contract by taking premium notes from policy holders who were not prepared to pay their premiums in cash when they fell due; (2) that the defendant did not make an equitable apportionment of the surplus and accumulations in accordance with the provisions of the policy; and (3) that he was induced to take the policy and perform the contract by misrepresentations which the defendant was bound to make good.

As to the first suggestion, the policy provides that the premiums should be punctually paid in cash. Appellant testified that before he accepted the policy, the assistant secretary of the defendant company told him that the terms of the policy were very strict; that every man that went into this class of insurance was compelled to live up to its terms by paying the premium in cash the day it was due; that no notes would be received from anyone, and if the insured failed to pay his premium in cash the day it was due, he forfeited his right to a distribution; the result of the enforcement of this requirement being the accumulation of a very large fund, to be distributed among the persistent members. Appellant further testified that after his policy had expired, and after he had declined to accept the sum of $3,347.15 offered him by the company as his share of the surplus, the vice president of the company gave as one reason for the discrepancy between that sum and the estimate furnished him when the policy was taken out, that they had modified the terms of that style of policy by accepting premium notes, instead of insisting on punctual payment of premiums in cash, and that this had greatly affected the profits on that class of policies. Substantially the same statement appears in a letter written to appellant by the vice president.

To this position counsel for appellee answer (1) That the contract as set forth in plaintiff’s policy does not forbid the taking of premium notes, and that while it stipulates for punctual payment of the premiums in cash, there is no stipulation that all premiums on other policies sháll be so paid. (2) That the policy itself provided that, on surrender of the policy, “all outside liability under this policy (shall) be first paid off before paid-up insurance shall be issued in its place.” And it is suggested that obviously the liability thus referred to, could only be for loans upon the policy, which loans might very well include those made to provide for unpaid premiums. In the third place it is contended that, even if the acceptance of the premium notes was not in accordance with the express terms of the contract, it would be impossible to ascertain the damage, if any, which appellant suffered because of such violation, for there would be no way of determining which, or how many, of those who gave premium notes would have managed to pay the premiums in cash, if the company had refused to accept the notes. The argument in support of these suggestions is convincing to us, as it was to the trial judge. He found as a matter of fact that in no case during the term of appellant’s policy was a premium note accepted from a policy holder whose premium was overdue. It was not merely an extension of the time for payment of the premium, but the transaction assumed the form of a loan upon sufficient security, and there is no intimation in the evidence of any default in payment of any of the premium notes. The trial judge also found that there was no evidence from which it could be inferred how much, if at all, the appellant was put to disadvantage through the acceptance of the notes of which he complains. And he concluded as matter of law that “there is nothing in the plaintiff’s form of policy which deprives the officers of the insurance company of their discretionary right to accept the note of the policy holder for a premium not overdue.” And further, that “the acceptance of premium notes from persons holding policies similar to the plaintiff’s, was not under the facts disclosed by the evidence, a breach of the contract between the plaintiff and the company.” Careful consideration of the question has led us to agree with these conclusions. If the transaction became less profitable to plaintiff, by reason of the more liberal treatment of its policy holders by the company, any loss possibly occasioned to him thereby could not be measured in any reasonable way. Any attempt to estimate it would be conjectural in the extreme.

As to the matter of apportionment of the surplus, the policy provides that “The surplus derived from all policies on this plan which shall not be in force by payment of premiums as above specified, at the date of the completion of their respective accumulated surplus periods, shall be apportioned equitably among such policies only as shall complete” the period. Evidently it was intended that the policies under the “accumulated surplus” plan should form a class by themselves, and that the surplus accumulated from lapsed and forfeited policies should be distributed among the surviving members of that class only. As we understand the evidence, it clearly appears that the divisible surplus was, in accordance with the discretion reposed in the trustees of the company, distributed to the policy holders in annual dividends. In this distribution the policy of the appellant shared upon the same basis as that upon which every other policy was placed. But in addition to these annual dividends, there was, upon the completion of the so-called accumulated surplus period, a distribution made of the sum derived from forfeited policies, and this amount was apportioned among the policies which had completed their accumulated surplus period. This sum was added to the amount of the annual dividends previously credited to the policy, and, together with them, made up the accumulated surplus which the policy holder had the right to withdraw. If there was anything in the evidence to indicate bad faith or serious error in the distribution of the surplus, or abuse of their discretion by the trustees, it would of course be the duty of the courts to give relief to an aggrieved policy holder. But, in the absence of any such showing, we see no reason to justify any interference with the exercise of the discretion conferred by the charter of the defendant company upon its board of trustees. We do not understand that defendant refuses to set forth the basis upon which the sum tendered to appellant is made up. No averment of mistake or miscalculation in making up the amount is made. It is the methods pursued in creating the surplus fund, which was to be accumulated, and divided among the policy holders to which plaintiff belongs, to which exception is taken. If those methods were right, and if the company was justified in their adoption and application, the details of the calculation are not questioned by plaintiff. We have no hesitation in saying that whenever a proper case is made out, a policy holder is entitled to un account, and is not to be dismissed with the statement that he is bound by the action of the trustees of the company: Thus, in Blair v. Supreme Council Am. Legion of Honor, 208 Pa. 262, where the question involved was as to the amount due the widow of a member of a beneficial association on his death certificate, a bill in equity for an accounting was sustained. Mr. Justice Dean said (p. 266) that the case involved a full examination of the books and records of the defendant tc determine the exact condition of what was called “the emergency fund,” and continued, “We think, taking into view the relations of the parties, even though the Order be not technically a trustee for the widow, as well as the nature of the inquiry that may have to be made into records, the remedy at law would not have been an adequate one, and that a bill in equity is a more appropriate remedy and best adapted to the inquiry.” Citing Bierbower’s Appeal, 107 Pa. 14, where Mr. Justice Gordon said (p. 18) : “The equitable remedy may be adopted solely on the ground that it is more convenient than an action of assumpsit.” The same principle was announced in Tully v. Felton, 177 Pa. 344, where Mr. Justice Green said (p. 356) : “We have not the slightest hesitation in holding that the case was a proper one for equitable jurisdiction. Whether on the ground of discovery, which was absolutely necessary, or complicated accounts, or community of interest in a common enterprise where all the accounts were in the hands of one of the parties, and the situation was one which involved a trust and confidence, it is perfectly clear that the only suitable and complete remedy was by a bill in equity.” In Apollo Trust Co. v. Safe Deposit & Title Guaranty Co., 31 Pa. Super. Ct. 524, Orlady, J., said (p. 526): “It is now fully established by many authorities, that jurisdiction in equity no longer depends solely upon the want of a common law remedy. If upon consideration by the court the remedy by an action in assumpsit is inadequate, or is insufficient to effect complete justice between the contending litigants, the court may properly adjudge the proceeding by a bill in equity to be the most convenient and effective in order to reach all the phases of the plaintiff’s contention, so as to dispose of the whole matter by securing and protecting the present-and future interests of all parties concerned in the controversy. This is particularly the rule when the facts are conceded by demurrer, and the accounts are complicated, or are all in the hands of one of the parties, or the situation involves a trust or confidential relation.”

But in the present case the court below found in its affirmance of defendant’s fourth request for findings of fact, that “The method pursued by the officers and trustees of the defendant company in determining the amount of surplus properly distributable in dividends, was a reasonable business method. There is no evidence from which it can be inferred that the trustees withheld from distribution, during Grange’s term, more than prudence and good judgment required.” He also found, in answer to the fifth request, that “The method pursued by the actuary in allotting among policy holders the dividend award of the trustees, was what is known as the contribution method, and was in fact the method authorized by the amendment of defendant’s charter contained in the Act of March 11, 1870 (P. L. 384).” And again, in answer to the ninth request for findings of fact, he found that “the averments of the bill that the defendant has wrongfully misapplied portions of said surplus to profits, has withheld from the plaintiff and others in his class credits to which he was entitled, and has charged losses and expenses against that class not properly chargeable against it, and has failed to account for sums derived from forfeitures, surrenders and death, are wholly unsustained by the evidence, and are found to have been improvidently made.” These findings of fact negative the claim of appellant for relief in these particulars, and the evidence seems to be quite sufficient to justify the findings.

With regard to the third ground of complaint which concerns the allegation of misrepresentation upon the part of an officer of the company, which induced the taking of the policy, the appellant testified that as an inducement to him to insure on this plan, the assistant secretary stated that the accumulated surplus policy was very popular, and that they had gotten from it very good results which he showed witness. He said that on a fifteen-year policy for $25,000, the insured beginning at the age of forty-one would receive at the end of the term a paid-up policy for the same amount and an estimated sum of $7,800 in cash; and that, while they always put the word “estimated” in, witness could rely on getting the amount named; that it was the rule of the company to be always on the safe side, and never to put out an inflated estimate. Appellant also received from this officer a letter enclosing the estimate of $7,800, and saying that the company did not furnish “inflated estimates.” It is conceded that at the time, the experience of the company with this class of policies was small. It had been issuing them for a few years only, and none had matured. It can hardly be denied that an estimate of $7,800 is inflated as compared with an actual result of $6,347.15.

Counsel for appellant contends that these statements of the assistant secretary of the company were misrepresentations of material facts, and that the company should be held responsible to him in damages for the deceit which he alleges was practiced. But with respect to this matter, the trial judge found that the evidence of misrepresentation was not sufficiently clear, precise and indubitable to demand a reformation of the policy, and that the misrepresentations were concerned with matters which were the subject of estimate merely, and not of concrete fact, and therefore they do not support the appellant’s allegation of fraud in the making of the contract. He further held that it was not within the power of the assistant secretary to bind the defendant company by any representation, in such a manner as to give to the plaintiff any advantage over other policy holders in the company. The court also found that the representation made by the assistant secretary that the estimate was based on the past experience of the company, did not constitute such deceit as would justify a recovery of damages by appellant, or would entitle him to an accounting by the company. These conclusions seem to us to reasonably follow from the evidence concerning the matter in question.

It will not do to construe the contract in this case as an agreement by which the company was bound to guarantee to appellant a certain definite amount of surplus. That was something which, from the circumstances, the future alone could determine. It depended for one thing, largely upon the number of lapsed policies which could not be foretold. The company is a mutual one, and in its accumulations all its policy holders had the right to share in the proportions fixed by the terms of their contracts. Whatever representation may have been made to appellant, he is and can be entitled to nothing more than his proportionate share of the surplus which actually accrued. It is obvious that a mutual insurance company cannot discriminate among its policy holders, and any agreement which would result in the payment of larger proportionate dividends to one of its policy holders than to others in the same class, would be illegal and void.

The view of this matter taken by the court below was undoubtedly right, as it appeared in the eighth and ninth of defendant’s requests for findings of law, which were as follows:

«(8). Tke trustees of the defendant company are bound to administer their trust with due regard to the interests of all policy holders. They have no legal right, and no officer or agent acting under them can be invested with a valid authority, to make a special contract with one policy holder entitling him to a larger proportionate return upon his policy than that enjoyed by others of his class.”

“(9) Hallowell’s statements to the plaintiff did not impose upon the defendant any contractual liability to pay to the plaintiff any greater sum than his equitable proportion of the earnings and accumulated surplus of the defendant.”

The statements made by the assistant secretary with regard to the probable amount of surplus and accumulations, were undoubtedly rose-colored, and were perhaps unduly influenced by his desire to get business for the company. But the evidence fairly shows, we think, that the past experience of the company, in so far as interest, mortality and dividends were concerned, taken in.connection with what seems to have been accepted as the experience of other companies, in the matter of forfeitures under policies of the kind under discussion, afforded some basis at least for the estimate which was given.- That the amount which appellant was to derive from surplus and accumulations was merely an estimate, appears plainly from the language of the option, as set forth in the policy. The reserve value of the policy is guaranteed, to-be not less than the sum set forth; that was something to be set apart from the payments of premiums, and it could be accurately determined in advance; but the amount of surplus and accumulations was merely an estimate, and was stated in the policy as such. The evidence was such as to carry conviction to the mind of the court-below, that Hallowell had access to data upon which his prediction might have been-based, and that his statements, though mistaken, were not im consistent with good faith in the light of the facts as they appeared at the time. One of the witnesses called by appellant, Mr. Garrigues, the mathematician of the company, when asked whether the estimate of $7,800 could have been made in good faith, answered: “It would require only a moderate assumption. Good faith would have indicated to Mr. Hallowell or anyone in his position, that the forfeitures might easily approximate forty per cent., by reason of lapses, death losses, and so on; and, if it had been forty-two per cent., $7,800 would have been realized.” Mr. Lippincott, another witness, when asked as to the reasonableness of the Hallowell estimate, said that the estimate made in 1891 was wholly within the range of probability. Evidence of intent to deceive in this respect is lacking. Nothing more than the expression of an unduly enthusiastic opinion seems to be left. Representations of this character referring merely to the future, are not sufficient to support an action based upon the ground of fraud.

The last nineteen assignments of error are to the refusal of the court below to compel the defendant company to answer certain interrogatories in advance of the trial, and to the dismissal of various exceptions to defendant’s answers. At the trial, the plaintiff called the actuary and the mathematician of the company, and examined them with reference to the subject matter which the interrogatories were intended to develop. It would seem, therefore, that appellant has had the benefit of this information. Several of the interrogatories were of such a nature that to answer them would have been equivalent to the rendering of an account in advance of a decree awarding it. As the case has been tried upon its merits, and the officers of the company have been examined and re-examined on the matters set forth in the bill, it would seem that the plaintiff has received all the information from them to which he was entitled, and we therefore deem it unnecessary to consider in detail the assignments referring to the dismissal of the exceptions to the answers.

After careful consideration of the entire record in this case, with the aid of full and able argument of counsel, we are satisfied that upon none of the grounds of complaint, has a case been made out, which would justify the granting of the specific relief for which appellant prays. The assignments of error are therefore dismissed, and the decree of the court below is affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Devine, Appellant, v. Simons.

      Negligence — Master and servant — Dangerous machinery — Infant.

    In an action by a girl fourteen years old against her employer to recover damages for personal injuries in which the negligence averred is failure to provide safe appliances and place to work and failure to give necessary instructions, a non-suit is properly entered where it appears that the plaintiff was employed as an errand girl in the defendant’s factory to carry jewelry; that at the time of the accident she lost a button from a tray, near a table under which a revolving shaft was operated; that the foreman without giving her any express orders to hunt for the button under the table indicated by a wave of the hand that the button might be there; that the plaintiff crawled under the table and was injured by her hair being caught in the revolving shaft; that when the accident actually occurred the foreman was not present; and that the machinery was neither unsafe nor improperly constructed for its intended use.
    Argued Jan. 17,1912.
    Appeal, No. 173, Jan. T., 1911, by plaintiffs from order of C. P. No. 3, Phila. Co., March T., 1907, No. 4689, refusing to take off non-suit in case of Margaret M. Devine by her father and next friend, Patrick Devine, and Patrick Devine v. John F. Simons et al, trading as Simons Bros. & Company.
    Before Brown, Mestrezat, Potter, Elkin and MIosChzisker, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Davis, J.
    The facts relating to the accident are stated in the opinion of the Supreme Court. It further appeared that at the time of the accident Margret M. Devine was fourteen years of age.

      Error assigned was order refusing to take off non-suit.

      William H. Wilson, with him Joseph P. Rogers and Francis M. McAdams, for appellants.
    The case was for the jury: Rumell v. Dilworth, 111 Pa. 343; McNees v. Sims, 231 Pa. 386; Escher v. Southwark Mills Co., 221 Pa. 180; Mapes v. Pittsburgh Provision & Packing Co., 31 Pa. Super. Ct. 453; Lewis v. Seifert, 116 Pa. 628; Prevost v. Ice and Befrigerating Co., 185 Pa. 617; Reese v. Hershey, 163 Pa. 253; Fick v. Jackson, 3 Pa. Super. Ct. 378; Bannon v. Lutz, 158 Pa. 166; Hollis v. Widener, 221 Pa. 72; Wheeler v. Oak Harbor Head Lining & Hoop Co., 126 Fed. Repr. 348; Camp v. R. R. Co., 94 Mo. App. 272 (68 S. W. Repr. 96); Westervelt v. Dives, 231 Pa. 548; Bollinger v. Crystal Sand Co., 232 Pa. 636; Jones v. American Caramel Co., 225 Pa. 644; Fegley v. Lycoming Rubber Co., 231 Pa. 446.

      F. B. Bracken of Loughlin & Bracken, for appellees.
    March 18, 1912:
   Opinion by

Mr. Justice Elkin,

At the trial the plaintiffs offered their testimony and rested, whereupon the learned court below directed judgment of non-suit to be entered upon motion of counsel for defendants. The decision was put upon two grounds; first, that the evidence failed to disclose any negligence on the part of defendants, and, second, that the facts clearly showed the injured daughter to be guilty of contributory negligence. Either ground, if the facts warranted the conclusion reached, would be sufficient to sustain the judgment. In actions for personal injuries there is not much difficulty as to the general principles of law which should govern, but there is always a question as to their application under the facts. In undertaking to determine the rights of the parties involved in the case at bar, as in all other cases of like character, we must look to the facts for guidance in solving the vexed questions raised. The negligence relied on was failure to provide a safe place to work, and failure to properly instruct as to the dangerous character of the machinery used in the factory. The statement of claim averred that it was “the duty of said defendants to provide a safe place for this plaintiff to work, and to equip their said factory with proper and safe tools, machinery and shafting, and to refrain from any and all negligence and carelessness in the equipment and maintenance of the said tools, machinery and shafting in their said factory.” It was further charged to have been the duty of defendants to give the plaintiff “all necessary instructions and advice, and to inform her .of the dangerous character of the places and machinery about which she was told to work, especially so, before changing her course of employment, or instructing or permitting her to do anything for them which was of a dangerous character, or required her to go into a place of danger.” The evidence did not show, nor tend to show, that the “tools, machinery and shafting” with which the factory was equipped was either unsafe or not properly constructed for the use intended. As we understand the contention of the learned counsel for appellants, the safety of the tools, machinery and shafting, as measured by the requirements of the business, is not seriously questioned, and certainly it could not be under the evidence. However, it is earnestly contended that the shafting was not sufficiently guarded to protect employees who had occasion to work near it, and this is the ground upon which appellants rely to ask a reversal of the judgment entered by the court below. But the statement of claim does not charge any such negligence, nor is it averred that failure to perform this particular duty is relied on to sustain a recovery. The defendants were engaged in the jewelry business, in the conduct of which they maintained a factory, on the fifth floor of which was located, what has been called in the trial of the case the polishing room. At one side of this room, extending for a distance of forty feet, was a table, the top of which was about three feet wide, and at the side of which was an apron six inches in width. Underneath the table, running longitudinally with it, about eighteen inches above the floor, was the shafting which by means of cogwheels connected with the various machines, used for polishing purposes, located on top of the table. It also appears that in front of the table, running the entire length of it, and fifteen or eighteen inches above the floor, was a foot rest seven inches wide which served not only as a convenience for the operatives, but as a barrier to protect those standing in front of the table from coming in contact with the revolving shafting. The shafting was located on a level with the foot rest, back toward the rear of the table, some eighteen or twenty inches from the front of it. The photographs exhibited show that the wheels and belting which operated the shaft were guarded by being boxed. Under these facts it is very doubtful, to say the least, whether the proofs made out a case of negligence for the jury, but without reference to the negligence of the defendant, it is clear, that the plaintiff had no duty to perform that required her to crawl under the table and thus come in contact with the shafting protected as above indicated. She could not reach the shafting without getting under the table and crawling either under or over the seven-inch wide foot rest. She was employed as an errand girl, and her duties required her to carry jewelry from the office to the polishing room, and when finished, to return it to the office. The accident happened while she was hunting for a button which had been lost from a tray on which she carried the jewelry. It is argued that the foreman ordered the girl to hunt for the button under the table and that it was his duty to instruct her as to the danger of coming in contact with the shafting. The difficulty about this position is, the facts do not show that the girl was instructed to hunt for the button under the table, or that she had any duties to perform that required instructions as to the use and dangers of the machinery. It is true the plaintiff in explaining her actions said that the foreman, at the time he told her to hunt the button, indicated by a wave of the hand that it might be under the table. But this was her own conclusion, and she acted upon her own judgment, and not in obedience to any orders given her by anyone. It is not pretended that the foreman gave her any express orders to crawl under the table, or to hunt for the button there, and we do not think it is enough to charge the defendant company with negligence, or to relieve her from contributory negligence, that she may have thought the foreman by waving his hand indicated that the button might be under the table. In the light of the testimony it cannot be said that the plaintiff was ordered to perform any particular duty, at any particular place. She was told to hunt for the button, but not where to look for it. No one knew where the button was, else there would have been no occasion to hunt for it. When she did hunt for it she was required to use her senses as to open and obvious dangers which she might encounter, but it is evident she did not do so. The evidence does not show that the foreman who gave the order to hunt the button was present when the accident occurred. He was in and out of the room at different times, but evidently was not present when the girl crawled under the table, or this fact would have been shown. So far as is disclosed by the testimony, no one representing the defendant company was present when the girl crawled under the table, or knew that she did so, until after she was injured by reason of her hair coming in contact with the revolving shaft. Under these circumstances the learned trial judge was clearly warranted in holding that she had voluntarily crawled under the table in the face of an open and obvious danger, and was precluded thereby from recovering damages for injuries resulting from her own carelessness. In this view of the case it is unnecessary to discuss the other questions raised by the assignments of error.

Judgment affirmed.


author: Mr. Justice Moschziskee,

text:
    Haines v. Elfman, Appellant.

      Landlord and tenant — Lease—Principal and agent — Notice of termination — Attornment—Amendment—Parties.
    1. Where an agent for a brother and two sisters executes a lease in his own name, and subsequently the tenant attorns to the brother acting for himself and his sisters, a notice to quit given by the agent, but not acted upon either by the tenant or the owners of the property does not terminate the tenancy.
    2. Where in such a case the brother causes a judgment to be entered up in his own name against the tenant under a warrant of attorney in the lease, the record may be subsequently amended by substituting the name of the agent as plaintiff to the use of the three owners.
    3. A modification of a contract of letting in the single particular of the amount of rent to be paid may be made without varying the other conditions contained in the lease; such a change is not of necessity, either in law or in fact, an abandonment by either party of any of his other rights under the contract as drawn.
    4. The law does not regard the fractions of a day. A lease for a year beginning on the first day of April expires on the thirty first day of the following March.

      Judgment — Opening judgment — Practice, O. P.

    5. On a rule to open judgment it is good practice for the parties to submit requests for definite findings of fact and conclusions of law, or for the court to state such findings and conclusions of its own accord. .

      Argued Jan. 17, 1912.
    Appeal, No. 281, Jan. T., 1911, by defendant from order of C. P. No. 4, Phila. Co., June T., 1911, No. 4047, discharging rule to open judgment in case of William J. Haines, Agent, to the use of Elizabeth C. Gillespie et al. v. Hyman Elfman.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Rule to open judgment.
    Rule to amend record.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned, were in making absolute the rule to amend the record and in discharging rule to open judgment.

      A. S. Ashbridge, Jr., for appellant.
    The judgment should have been opened: Penna. Co. for Ins. on Lives & Granting Annuities v. Shanahan, 10 Pa. Super. Ct. 267; Breden v. Gilliland, 67 Pa. 34; O’Hara v. Baum, 82 Pa. 416; Dikeman v. Butterfield, 135 Pa. 236; Phila. v. Jenkins, 162 Pa. 451; North v. Yorke, 174 Pa. 349; Stevenson v. Virtue, 13 Pa. Super. Ct. 103; Sweigart v. Conrad, 12 Pa. Super. Ct. 108; Swartz v. Morgan, 163 Pa. 195.
    If the original lease was in force the original lessor only could have given the notice, and he did not: Holt v. Martin, Agent, 51 Pa. 499.
    For authorities that we could not contest our landlord’s title, and one of the owners cannot step in as landlord by simply collecting rent, see Holt v. Martin, 51 Pa. 499; Bedford v. Kelly, 61 Pa. 491; Seyfert v. Bean, 83 Pa. 450.
    The current term that Elfman held under at the time of the service of that potice, assuming the lease to be in force, would have been the 30th of June, 1911. He was not bound to move from the premises on the 31st of July, 1911, even if that lease was in force and the notice was perfectly legal; he had a right to move on the 1st of August, 1911: Duffy v. Ogden, 64 Pa. 240; Stewart v. Jackson, 181 Pa. 549.

      Boyd Lee Spahr, for appellee,
    cited as to the allowance of the amendment of the party plaintiff: Kaylor v. Shaffner, 24 Pa. 489; Walthour v. Spangler, 31 Pa. 523; Power v. Grogan, 232 Pa. 387; Booth v. Dorsey, 202 Pa. 381; Gilmer v. DeCaro, 13 Pa. D. R. 173.
    Cited as to the discharge of the rule to open the judgment : Kaier v. O’Brien, 202 Pa. 153; Cruzan v. Hutchison, 210 Pa. 88; Ellis v. Ambler, 11 Pa. Super. Ct. 406; Taylor v. Winters, 6 Phila. 126; Fidelity Trust Co. v. Lee, 38 Pa. Super. Ct. 330.
    March 18, 1912:
   Opinion by

Mr. Justice Moschziskee,

On August 1, 1911, George Cuthbert Gillespie caused a confessed judgment in an amicable action of ejectment to be entered against the defendant, Hyman Elfman. Thereupon Elfman filed a petition averring that the written lease upon which the action rested had been annulled and superseded by an oral letting for the term of three years at an increased rental; and rules to open and to strike off the judgment were allowed upon this petition. The plaintiff filed an answer in which he denied that the written lease had been annulled or that any new contract had been substituted therefor, and averred that Elfman had regularly paid his monthly instalments of rent to him, Gillespie, as landlord under the original lease. Subsequently a petition was filed by Elizabeth C. Gillespie, Anna G. Boyd and George Cuthbert Gillespie, averring that they were the owners of the premises in question; that while the original lease had been executed in the name of William G. Haines, Agent, the latter acted as agent for George Cuthbert Gillespie who was then acting as their representative in the management of the property, and praying for a rule to amend the record by substituting Haines as plaintiff to their use. The defendant filed an answer denying the right to amend, in which he averred practically the same facts as were at issue in the proceedings to open or strike off the judgment. October 23, 1911, the court allowed the amendment and refused to open or strike off the judgment. The defendant has appealed and assigns for error the action of the court in making absolute the rule taken by the plaintiff and discharging the rules entered by the defendant.

From the record as presented it appears that on January 31, 1910, William J. Haines, Agent, without expressly disclosing his principals, leased the premises 601-3 Market street to the defendant for one month from February 1,1910, at a rental of $300 payable in advance on the first day of “each' and every month during said term or any renewal thereof;” that the lease provided, inter alia, that either party could determine the term or any renewal thereof upon five days’ written notice prior to the expiration of any month; that the defendant entered into possession under this lease and paid his rent to Haines for the months of February and March, 1910; that on April 1,1910, George Guthbert Gillespie collected the $300 rent and gave a receipt for the same, as he did in the month of May; that May 23,1910, Gillespie called on the defendant, in his own behalf and as agent in fact for his sisters, and notified Elfman that he would have to pay more rent if he desired to remain in possession of the premises; that thereafter the defendant paid rent at the rate of $350 per month, drawing his checks directly to Mr. Gillespie; that on June 6, 1910, Haines, Agent, served a formal notice upon Elfman to quit on June 30, 1911.

. The defendant claims that Gillespie expressly agreed in consideration of the increased rental to lease the entire premises to him for three years; Gillespie denies this and claims that there was no change in the written lease excepting as to the amount of the rental. This is the principal issue between the parties. No request for definite findings of fact or conclusions of law were made to the court below and no opinion was filed; hence, in reviewing this record, on every issue between the parties where sufficient proof appears to support the position taken below in favor of the appellee, we must take it that the court found and concluded accordingly. This being assumed, there is sufficient upon the record to justify the following findings and conclusions, — that in making the lease Haines merely acted as agent for Mr. Gillespie who had charge of the property for himself and his two sisters ; that this knowledge was brought home to Elfman and he attorned to Gillespie as landlord under the lease; that the notice to quit dated June 6,1910, was not acted upon by either tenant or landlord and did not terminate the lease, and that Gillespie never declared that it was intended so to do; and that it was understood between the parties at the time of the increase of the rent that the lease should only be affected to that extent, and not superseded by a new term of three years or any other period.

A modification of a contract of letting in the single particular of the amount of rent to be paid, may be made without varying the other conditions contained in the lease; such a change is not of necessity, either in law or in fact, an abandonment by either party of any of his other rights under the contract as drawn. Of course the parties may at the time agree upon a change in the term, as the appellant claims was done in this case, but the court has found against him on that contention, and after a review of the entire record we see no sufficient grounds to change the finding. While the final notice to quit was not signed by Haines, the agent named in the lease, it was given by Gillespie, to whom the defendant had attorned and of whose rights he was fully informed; under the circumstances this was sufficient. We do not see any merit in the contention that the notice should have been to quit on the first day of August rather than on the thirty-first day of July. ‘The law does not regard the fractions of a day. Leases beginning on the first day of April expire on the thirty-first day of March. Duffy v. Ogden, 64 Pa. 240; Cascade v. Lewis, 148 Pa. 333, 338. Nor are we impressed with the contention that, in law, the notice of June 6,1910, terminated the old lease. Such a notice would not of itself destroy the lease unless it was acted upon: Fidelity Trust Co. v. Lee, 38 Pa. Super. Ct. 330. The authorities cited by the appellant on the rule that a tenant cannot contest his landlord’s title have no application to the present case.

All of the issues of fact raised on the rule to amend were involved in the proceedings to open and strike off the judgment, and could properly be treated as adjudicated. The amendment introduced no new cause of action, and it was within the provisions of the Act of May 4, 1852, P. L. 574: Kaylor v. Shaffner, 24 Pa. 489; Walthour v. Spangler, 31 Pa. 523; Booth v. Dorsey, 202 Pa. 381, 385; Power v. Grogan, 232 Pa. 387, 397. By the course pursued all possible parties in interest were brought upon the record, and, whether or not the amendment was necessary, we conclude that the court below fell into no reversible error in allowing it.

Had the defendant submitted requests for definite findings of fact and conclusions of law it would have been the duty of the court below to answer them, or the court could have stated such findings and conclusions of its own accord. If this course had been pusued it would have greatly simplified and facilitated our labors on review, and we strongly recommend it as good practice in future proceedings to open judgments.

The assignments are overruled and the judgment is affirmed.


author: Mr. Justice Brown,

text:
    Raff v. Isman, Appellant.

      Principal and agent — Personal liability of agent — Unregistered foreign corporation — Building contract.

    1. Where a citizen of this state signs a building contract “as agent for” a named company with knowledge that such company is an unregistered foreign corporation without authority to do business in this state, and the contractor has no such knowledge, the agent will be personally liable on the contract.

      Contract — Building contract — Extra work — Architect.
    2. Where a building contract provides that no alterations shall be made except upon the written order of the architects with the amount to be paid stated, and the architects in giving a written order for extra work, instead of stating the amount to be paid for it, merely direct the contractor “to keep an account of the cost of it,” the owner will be held to have waived the provision of the contract, if it appears that after the architects had approved the contractor’s bill, which included the extras, and given him a final certificate, the owner paid large sums on account thereof without objection.
    Argued Jan. 17,1912.
    Appeal, No. 300, Jan. T., 1912, by defendant from judgment of C. P. No. 2, Phila. Co., June T., 1908, No. 4153, on verdict for plaintiff in case of A. Raymond Raff v. Felix Isman.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover balance due on a building contract. Before Barratt, J.
    The opinion of the Supreme Court states tbe case.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $9,421.96. Defendant appealed.

      Error assigned, amongst others, was in giving binding instructions for plaintiff.

      Morris Wolf, with him Horace Stern, for appellant.
    “Whenever individual liability is imposed by statute upon officials for corporate action in excess of power, it is in the nature of a penal provision and is not to be extended by construction to cases not clearly within the law:” Stephenson v. Dodson, 36 Pa. Super. Ct. 343; Stoner v. Phillipi, 41 Pa. Super. Ct. 118.
    The testimony shows that the Hepner Company at the time that the defendant made the contract was not engaged in business in Pennsylvania, and therefore was not in default in failing to register: Liebig Mfg. Co. v. Hill, 7 Pa. Super. Ct. 15; Del. River Quarry & Construction Co. v. Bethlehem etc. Ry. Co., 204 Pa. 22; De La Vergne Refrigerating Mach. Co. v. Kolischer, 214 Pa. 400; People’s Bldg. Loan & Sav. Assn. v. Berlin, 201 Pa. 1; New York & Scranton Construction Co. v. Winton, 208 Pa. 467; Phoenix Silk Mfg. Co. v. Reilly, 187 Pa. 526.
    An architect or engineer has no general authority to dispense with, waive, vary or alter the conditions of a building contract. His duty is to see that it is faithfully fulfilled according to its terms: Gillison v. Wanamaker, 140 Pa. 358; Shultz v. Seibel, 209 Pa. 27; Ruch v. York, 233 Pa. 36; Wagner Co. v. Cawker, 112 Wis. 532 (88 N. W. Repr. 599; James Reilly Repair & Supply Co. v. Smith, 177 Fed. Repr. 168; Van Buskirk v. Board of Education, 75 Atl. Repr. 909.

      James Jay Gordon, for appellee.
    This is ruled by Lasher v. Stimson, 145 Pa. 30.
    The authority of Lasher v. Stimson, has never been questioned and could not be without striking at the foundations of the law. Its reasoning has been adopted in numerous cases, both in federal and state courts: Bond v. Stoughton, 26 Pa. Super. Ct. 483; De La Vergne Refrigerating Mach. Co. v. Kolischer, 214 Pa. 400; Building, Loan & Savs. Assn. v. Berlin, 15 Pa. Super. Ct. 393; Buffalo Refrigerating Mach. Co. v. Heat & Power Co., 178 Fed. Repr. 696; Building, Loan & Savs. Assn. v. Neal, 15 Pa. Super. Ct. 400; Milsom Rendering & Fertilizing Co. v. Kelly, 10 Pa. Super. Ct. 565.
    The rule that the investing of capital by an unregistered foreign corporation constitutes doing business, is laid down in numerous decisions in Pennsylvania. Kilgore v. Smith, 122 Pa. 48; People’s Bldg., Loan & Savs. Assn. v. Berlin, 201 Pa. 1; N. Y. & Scranton Construction Co. v. Winton, 208 Pa. 467; Pavilion Co. v. Hamilton, 15 Pa. Super. Ct. 392; Building, Loan & Savs. Assn. v. Berlin, 15 Pa. Super. Ct. 393.
    The provision as to extra work was waived: Focht v. Rosenbaum, 176 Pa. 14; Robinson v. Baird, 165 Pa. 505.
    March 18, 1912:
   Opinion by

Mr. Justice Brown,

The defendant below offered no testimony, and, on the case as made out by the plaintiff, a verdict was directed in his favor upon which the judgment appealed from was subsequently entered. On August 3, 1907, the appellee entered into a written contract, in the city of Philadelphia, with the appellant, to provide, in accordance with certain drawings and specifications, all the materials and perform all the work for the alterations and additions to a building situated at Broad and Walnut streets, in the city of Philadelphia. The building was known as the Hepner Hair Emporium, and Isman, the appellant, signed the contract “as agent for Hepner Hair Emporium Co.” The work called for by the contract was to be done under the direction of Stearns & Castor, architects employed by Isman. For the work called for by the contract the appellee was to receive the sum of $17,500, and all payments for work done were to be due when certificates for the same were issued by the architects. Provision was made for payment for extra or additional work. In accordance with the terms and provisions of the contract and under the direction of the said architects, the appellee, between August 7, tl907, and November 20 of the same year, provided all the materials and performed all the work necessary to complete the alteration and additions to the building, as called for by the contract, and, in addition, did some extra work. On December 5, 1907, the architects issued a final certificate, showing that there was due to the appellee, less the sums that he had received up to that time, $22,588.88, which included not only the contract price of $17,500, but $5,088.88 for the extra or additional work. At the time this action was brought the appellee had received on account of his claim $14,951.73. Of this sum $7,451.78 had been paid to him after he had received the architects’ final certificate of December 5, 1907. Neither at the time of the making of the contract of August 3, 1907, nor at any time the work was being-done under it, was the Hepner Hair Emporium Company — a corporation of the state of Delaware, for which the appellant had assumed to act as agent in making the contract — registered in the office of the secretary of the commonwealth, as required by the Act of April 22,1874, P. L. 108, and it was not, therefore, entitled to do business in this state at the time of the execution or during the performance of the contract. The verdict was directed for-the plaintiff, because the learned trial judge was of opinion that, under the foregoing undisputed facts, the defendant had become personally liable to the plaintiff in contracting with him as an agent for a principal which had no existence in this state.

It does not appear that, when the appellee entered into the contract, or at any time during its performance, he knew that the principal for whom Isman, the appellant, had assumed to act, was a corporation, much less a foreign one, incapable of transacting business in this state. On the contrary, his uncontradicted testimony is that he did not learn that the Hepner Hair Emporium Company was a corporation until the latter part of June, 1908 — more than six months after he had performed his contract and received the final certificate of the architects as to the amount due him. Before entering into the contract he inquired of Isman about the financial responsibility of the company, and was informed by the latter that he and three others, whom he named, were backing it. Isman knew his principal was a foreign corporation and is presumed to have known that it had not registered in this state, and could not, therefore, legally transact any business here; but, with this knowledge, he induced the appellee to contract with him as agent for a principal having no corporate existence in this state. In entering into the contract he held himself out to the appellee as an agent for a company designated as owner of a building situated at Broad and Walnut streets, in the city of Philadelphia, and known as the Hepner Hair Emporium. This was presumably the place of the company’s business, in which a part of its capital had been invested and in which, by the terms of the contract with the appellee, Isman, as its agent, undertook to invest more for alterations and additions to the building. When the contract was signed, the Hepner Hair Emporium Company was utterly without authority to do any business within this commonwealth, and what it could not do itself it could not authorize any one else to do for it. Isman is presumed to have known its incapacity to do business here, and must bear the consequences of knowingly inducing another to contract with him as the agent of such a principal. He has shown nothing to relieve him from the rule as laid down in Lasher v. Stimson, 145 Pa. 30, where, in passing on the liability of Stimson, who had undertaken to contract for the Sudsena Manufacturing Company, a foreign corporation which had not registered here, we said, through Mr. Justice McCollum: “It is clear that the company could not authorize him to do business for it in this state, and that he must be regarded as cognizant of its non-compliance with the terms prescribed by our statute, and of its consequent incapacity. When a person assumes to act for another, knowing that he is not authorized to do so, he becomes personally liable to the party with whom lie deals for or on account of Ms alleged principal TMs doctrine is so familiar and well established that citation of authority for it is unnecessary. We think the case before us falls clearly within this principle. The appellant was not charged with the duty of inquiring whether the Sudsena company was a foreign corporation, and if so, whether it had complied with the laws which allowed it to transact business here, when, as the special verdict finds, he did not know ‘that it was a corporation at all.’ A citizen of this state who has a business transaction with another as agent of a foreign corporation, may rely on the representation of the agent as to his authority, without releasing him from his common law liability as principal, if it turns out that his action was unauthorized. In other words, his failure to make search in the office of the secretary of the commonwealth, for the statement which the corporation ought to file there, will not inure to the benefit of the person who falsely pretended that he was its duly constituted agent. We think that as the appellee acted without authority from the Sudsena company, and it was non-existent as to Pennsylvania, he is clearly liable to the appellant for the work done and goods furnished on his order while professedly acting in its behalf.”

But it is contended by the appellant, that, even if he is liable on the contract with the appellee, he cannot be held accountable for $4,042.72 of the balance claimed to be due, because these figures represent the cost of work done, either under verbal orders given by the architects or under their written orders, in which they failed to state the amount to be paid for the extra work. A requirement of the contract was that no alterations — that is, changes in •'he work as defined by the specifications— should be made except upon the written order of the architects, in which the amount to be paid for such alterations was to be stated. Unless this provision was waived, the appellant’s right is to call for its enforcement.

It is not disputed that the appellee did the extra work and furnished the extra materials charged for. On the contrary, in addition to an admission in the affidavit of defense, which was offered in evidence, it was admitted by appellant’s counsel on the trial that the bill for the extras was correct in amount, and liability to pay for them was denied solely on the ground that they had not been ordered in the manner provided for in the contract. On December 11, 1907, appellant’s architects wrote the appellee as follows: “On December 5 we sent to Mr. Felix Isman’s office final certificate covering the balance due you on the Broad and Walnut street job. We enclose herewith memo as to just how we made the account up.” The admission of this letter is the subject of the first assignment of error. Its admission could not have injured the defendant, and we have not been informed by counsel for appellant why it should not have been admitted. It was a mere notice from the architects to the appellee that, as he had performed his contract, they had, in pursuance of their duties, sent to Isman, with whom he had contracted, a final estimate showing the amount due. The appellee was entitled to this notice, and proof that it had been given him by the architects did the appellant no possible harm. After the architects had approved the appellee’s bill and given him a final certificate, he handed the same to the appellant and the latter paid on that final certificate, without questioning it, $5,000, as follows: Two thousand five hundred dollars by his two individual notes, given December 23, 1907, and $2,500 by two similar notes, given February 19, 1908. The work was done by the appellee, was accepted by the appellant and, upon the final certificate, which was in his hands, he gave his own notes to the appellee for $5,000 in payment on account of what was due. In giving a written order to the appellee to do some extra work, the architects, instead of stating the amount to be paid for it, merely directed the appellee “to keep an account of the cost of it.” The clause upon which the appellant relies to relieve him from paying for a portion of the extra work must be regarded as having been waived. Upon a review of the whole case, we are of opinion that the direction of a verdict for the plaintiff was proper.

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


author: Mr. Justice Moschziskeb,

text:
    Ott v. Philadelphia, Appellant.

      Negligence — Infant—Damages—Erroneous charge.

      1. In an action by a father and child to recover damages for personal injuries to the child, a little girl seven years old, where the strongest proof produced by the plaintiffs concerning the probability of the duration of the child’s impaired physical condition is the testimony of a physician to the effect that she was suffering from a nervous condition and malnutrition, that she was growing worse, that the chances of her recovery were unfavorable, and that it was doubtful whether she could live long, it is reversible error for the court to permit the jury to find that the child’s condition would last beyond her majority.
    2. In such case the jury should not be permitted to find what expenses the father would’ probably incur for future treatment in the absence of any evidence as to what such expenses would probably be.
    Argued Jan. 18, 1912.
    Appeals, No. 196 and 197, Jan. T., 1911, by defendant from judgment of C. P. No. 1, Pkila. Co., June T., 1906, No. 1470, on verdict for plaintiffs-in case of Jennie Irene Ott, by her father and next friend, George Ott, and George Ott v. City of Philadelphia.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.

      Trespass to recover damages for personal injuries to a little girl seven years old. Before Magill, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for Jennie Irene Ott for $2,000, and for George Ott for $1,000. Defendant appealed.

      Error assigned, was the portion of the charge quoted at length in the opinion of the Supreme Court.

      John E. Minds, assistant city solicitor, with him Max Aaron, assistant city solicitor, and Michael J. Ryan, city solicitor, for appellant.
    Damages cannot be assessed by the exercise of good judgment of the jury alone, in the absence of evidence, and there is no principle of law permitting juries to assess damages as to future expenditures based upon what has been spent in the past, in the absence of evidence to that effect. The jury was asked to supply their own facts as to what the future expenses would be and calculate upon them: Collins v. Leafey, 124 Pa. 203; Reese v. Hershey, 163 Pa. 253; Brooks v. Penna. R. R. Co., 2 Pa. Super Ct. 581; McHugh v. Schlosser, 159 Pa. 480; Goodhart v. Penna. R. R. Co., 177 Pa. 1; Wallace v. Pennsylvania Railroad Co., 195 Pa. 127; McKenna v. Gas Company, 198 Pa. 31; Simpson v. Pennsylvania Railroad Co., 210 Pa. 101; O’Reilly v. Railway Co., 17 Pa. Super. Ct. 626.

      Eugene Raymond, for appellees,
    cited: Harrisburg, Carlisle & Chambersburg Turnpike Road Co. v. Cumberland County, 225 Pa. 467; Hoon v. Traction Co., 204 Pa. 369; Penna. Co. v. James, 81* Pa. 194; Penna. R. R. Co. v. Keller, 67 Pa. 300.
    March 18, 1912:
   Opinion by

Mr. Justice Moschziskeb,

This was an action in trespass against the city of Philadelphia, instituted by George Ott, in his own behalf and as the father and next friend of Jennie Irene Ott, to recover damages arising from personal injuries to the latter.

On June 10, 1910, at about 8:45 in the evening, George Ott was driving a carriage containing himself and his two-year-old daughter along a public street when his conveyance fell into a ditch or trench opened by the city for the purpose of connecting water-mains; the child was thrown over the dash-board and is alleged to have received serious injuries. The jury rendered a verdict for the plaintiff. The defendant has appealed and assigns for error the following excerpts from the charge of the trial judge: “The next item to be considered is whether Mr. Ott, as the result of this injury, will be obliged to spend other money for medical services or care of this little girl from this time until she arrives at the age of twenty-one years, when his legal liability would cease. If you find that, as the result of this injury, he would be necessarily required to spend money for her care in the future, medical or otherwise, if the testimony satisfies you of that fact, while there has not been any evidence as to what it would probably be, you will have to apply your good judgment to that, and judge by what has been paid in the past; ascertain, if you can, reasonably, what he would probably be required to expend in the future for such medical treatment, the testimony being, according to some of the witnesses, at least, that she is still by no means well;” and “She (Jennie Irene Ott) would also be entitled to an allowance or compensation for her loss of earning power after she had arrived at the age of twenty-one years, if you find and can find from this evidence that there would be such a loss of earning power after she is of the age of twenty-one years.”

The strongest proof produced by the plaintiff concerning the probability of the duration of the impaired physical condition of his daughter, was the testimony óf one of his medical experts who said that she was suffering from a nervous condition and malnutrition, that she was growing worse and the chances of her recovery were unfavorable, adding, “my opinion is that if she lives to the time of puberty she may improve, but I doubt whether she will live that long.” This, with the other testimony in the case, was too meager to justify a finding that the child’s condition would last beyond her majority, or what expenses would probably be incurred by the father for future treatment; while neither of these could be shown exactly, both of them were susceptible of proof to a degree. The plaintiff called three doctors who had treated the child, and they should have been asked for their professional opinion concerning the probable duration of her trouble, the nature of the treatment necessary in the future, and for an intelligent estimate of its cost, but there was no real attempt to secure light upon any of these points; in the absence of this, the parts of the charge complained of constitute harmful error. The assignments are sustained, and the judgment is reversed with a venire facias de novo.


author: Pee Cubiam,

text:
    Norris v. Breakwater Company, Appellant.

      Attorney and client — Unfaithfulness of attorney — Affidavit of defense.

    In an action by an attorney at law to recover alleged unpaid fees, wherein the plaintiff bases his claim upon a written agreement between himself and the defendant, an affidavit of defense is sufficient which alleges unfaithfulness and hostility by him to the interests of the defendant “in violation of the spirit and intent of said agreement.”
    Argued Jan. 18, 1912.
    Appeal, No. 3, Jan. T., 1911, by defendant from order of C. P. No. 4, Pbila. Co., March T., 1910, No. 8, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Edward W. Norris v. The Breakwater Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Assumpsit to recover balance of fees alleged to be due under written contract dated October 3, 1908. The contract was annexed to the statement of claim and contained the following recital:
    Whereas the first party and the company have adjusted and settled all their differences, disputes and controversies and agreed that the company is indebted to the first party in the sum of five thousand and fifty-three and 50-100 ($5,053.50) dollars for services rendered as its attorney to the date hereof, and the company has agreed to retain and employ the first party as its attorney and counsellor-at-law to represent it in such matters as may be entrusted to the first party by its board of directors from the day and date hereof until the 30th day of April, 1910, for the compensation hereinafter provided, and in consideration of the promises of the first party hereinafter contained, to accept the said retainer and employment and not to undertake or accept any employment or retainer of any kind inimical or hostile to its interests, except as hereinafter specifically provided.
    The affidavit of defense after giving a detailed history of the Sea Coast Construction Company and the Breakwater Construction and Engineering Company, and an account of their dealings with the plaintiff continued as follows:
    By reason of the proceedings in the United States District Court for the Southern District of New York, the claims of the said Edward W. Norris and John F. Donovan, became uncollectible, but immediately after the incorporation of the defendant, The Breakwater Company, the plaintiff, the said Edward W. Norris, sent a bill to the defendant for professional services rendered to The Breakwater Construction and Engineering Company for the sum of |8,286.25, claiming it as a balance due under the agreement of February 24, 1908, which the said Edward W. Norris had with The Breakwater Construction and Engineering Company. The defendant refused to pay the said bill of the said Edward W. Norris, and thereupon the said Edward W. Norris and John F. Donovan, procured and caused proceedings in involuntary bankruptcy to be instituted in the United States District Court for the Southern District of New York, on the 1st day of August, 1908, and in the United States District Court for the Northern District of Ohio, for the purpose of having The Sea Coast Construction Company adjudged an involuntary bankrupt, and to have a receiver appointed. The application for a receiver was denied and answers contesting the proceedings were duly interposed, and the defendant upon the refusal of his application for a receiver, then made an application in the Unted States District Court for the Southern District of New York to set aside the sale of the assets and property of The Breakwater Construction and Engineering Company made by the special commissioner to the defendant herein. This proceeding was begun some time in September in the year 1908. The said application to set aside the said sale was made by certain alleged creditors of The Breakwater Construction and Engineering Company, and were brought at the instance of the said Edward W. Norris, who solicited retainers therein, wherein his fees were contingent upon the successful termination of the suit to set aside the sale and the confirmation thereof, and the said Edward W. Norris upon the petition of divers creditors drawn by him, and the allegations of which were made by the said creditors upon information supplied and furnished by him in betrayal of his professional obligations and in violation of his office as an attorney-at-law of the state of New York, and in violation of his duty towards his clients as aforesaid.
    These proceedings affected the securities held by the First National Bank of Cleveland, Ohio, to wit, the bonds and stock of the defendant, and the said First National Bank of Cleveland, Ohio, insisted that a compromise should be made with the said plaintiffs in this a.ction, and that they should be paid to discontinue the attacks upon The Breakwater Company and affecting the securities of the bank aforesaid. And the defendant under duress, and by reason of the threats of the said Edward W. Norris and the claims of the said First National Bank of Cleveland, Ohio, entered into negotiations with the said Edward W. Norris and John F. Donovan, and the said bank having then and there the control of The Breakwater Company insisted that the demands of the plaintiff, the said Edward W. Norris, both for himself and for the said John F. Donovan, should be complied with, and on October 3, 1908, the bank having demanded and forced the settlement with the said Edward W. Norris, and John F. Donovan for the sole and whole purpose of quieting the title of the said bank to the said securities aforesaid", compelled the defendant to enter into the agreement in controversy, and the said agreement was drawn and entered into. That said agreement was based upon the fact that the said Edward W. Norris had rendered services to the defendant, when in truth and fact he rendered no service whatsoever to the defendant, but all his actions had been to the detriment of the said defendant, and he had rendered no services in its behalf.
    That the said First National Bank of Cleveland, Ohio, was intimidated by the threats of the said Edward W. Norris, and compelled the officers of “The Breakwater Company to carry out the said agreement until the bank’s indebtedness was paid off, to wit, about the 17th day of November, 1910, and the defendant during such time and in pursuance of the said agreement, paid to the said Edward W. Norris all the sums provided to be paid, but at no time from October 3rd, 1908, to November 17, 1909, or at any time thereafter did the said Edward W. Norris render and perform for The Breakwater Company, or any of its officers, or any of the parties in interest, any service whatsoever; and furthermore, no sum or sums of money were paid to the said Edward W. Norris by the defendant in this cause, after the claim of the First National Bank of Cleveland, Ohio, was paid, and the duress incident to the said claim and the holding of the securities of the defendant was removed. That the defendant during the time that its securities were held by the First National Bank of Cleveland, Ohio, was controlled by the First National Bank of Cleveland, Ohio, is apparent from the fact that a majority of the board of directors was composed of the officers and counsel of said bank and it was therefore compelled to yield to the control of the said First National Bank of Cleveland, Ohio, in the execution of said agreement, which execution was produced by duress, and to the detriment of the defendant, and for the benefit of the First National Bank of Cleveland, Ohio, which held the securities of the defendant as collateral security for its debt of $350,000.
    That due to the duress exercised by the First National Bank of Cleveland, Ohio, and Edward W. Norris, the plaintiff, the defendant paid to the plaintiff the following sums of money:
    1908 March 21,...................$1,050.00
    October 8, .................. 1,500.00
    “ 30, .................. 300.00
    November 7, ................ 292.25
    « 19, .................. 592.25
    December 21,................ 592.25.
    1909 July 27, .................... 350.00
    August 24, .................. 350.00
    October 14, ................. 700.00
    And the defendant avers that the aforesaid payments made to the plaintiff were made under unlawful duress, and that the defendant was not a free agent in making the same and now claims the right to recover said money from the plaintiff with interest from the various dates of payment, and asks for a certificate, and for leave to have the jury find a verdict in its favor for said amounts.
    And the defendant further avers that on or about April 30th, 1910, the said Edward W. Norris in violation of the contract annexed to the copy of the plaintiff’s statement of claim was in communication and conference with certain creditors of The Breakwater Construction and Engineering Company and the Sea Coast Construction Company, with a view of attacking the title of The Breakwater Company to certain of its property, and involving it in further expensive and collusive litigation.
    Furthermore, the said Edward W. Norris, the plaintiff, threatened that unless he were retained and employed as counsel by the defendant, The Breakwater Company, for a further term that he would accept a retainer from such creditors whose claims and demands were hostile to the interests of the defendant, The Breakwater Company, all of which was in direct violation of the terms and spirit of the written contract annexed to the plaintiff’s statement of claim.
    The court made absolute the rule for judgment.

      Error assigned, was the order of the court.

      Hampton L. Gar son, with him John Kent Kane and Emanuel J. Myers, for appellant.

      Lewis, Adler & Laws, for appellee.
    March 18, 1912:
   Pee Cubiam,

The affidavit of defense, deemed insufficient by the court below, is of unpardonable length and teems with irrelevant matter. The appellee is an attorney-at-law, and his claim for professional services is based upon a written agreement with the appellant, dated October 3, 1908. A defense set up in the affidavit is his alleged infidelity to the appellant as his client, but this was held by the court below to be unavailing, because there is an express denial in the affidavit of defense that the appellee had rendered any services whatever to the appellant prior to October 3, 1908, and it could take no advantage of his unfaithfulness to its predecessors. We do not so read the affidavit of defense. The first recital in the agreement is, “Whereas the first party and the company have adjusted and settled all their differences, disputes and controversies and agreed that the company is indebted to the first party in the sum of five thousand and fifty-three and 50-100 ($5,053.50) dollars for services rendered as its attorney to the date hereof.” The execution of this agreement is thus admitted by the appellant: “It is true, as he alleged in the plaintiff’s statement of claim, that the defendant entered into a certain written contract, copy of which is annexed to the plaintiff’s statement of claim, but it is not true as is alleged in the said statement of claim that he, the plaintiff, has well and faithfully rendered, performed and discharged such services for the defendant as were required of him by its board of directors, and has faithfully performed and kept all of the conditions and provisions of said contract as therein provided upon his part to be kept and performed. But on the contrary, the plaintiff has always been inimical and hostile to the interests of the company, in violation of the spirit and intent of said agreement.” The averment which the court below seems to have misunderstood is not that the appellee had not “rendered any services whatever to The Breakwater Company” prior to the date of the agreement, but is, “Said agreement was based upon the fact that the said Edward W. Norris had rendered services to the defendant when in truth and fact he rendered no service whatsoever to the defendant, but all his actions had been to the detriment of the said defendant, and he had rendered no services in its behalf.” This, taken in connection with the agreement and the other quoted averment in the affidavit of defense, does not necessarily mean that the appellee had not been counsel for appellant prior to October 3, 1908, but is entirely consistent with such a relation, in which, however, he may have failed to faithfully serve his clients. There is a sufficient averment of professional unfaithfulness in the affidavit of defense to send the case to a jury on the question of the right of the appellee to recover. It is not necessary that we, at this time, pass upon his alleged duress of the appellant in procuring the agreement from it.

Judgment reversed and record remitted with a procedendo.


author: Per Curiam,

text:
    Chartiers Creek Bridge.

      Appeals — Appeal from Superior Court — Constitutional question.

    Where an order allowing an appeal from the Superior Court states that the appeal is allowed because a constitutional question is involved, the argument in the Supreme Court will be limited to that question, and if it appears that the assignment of error in the Superior Court relating to the constitutional question has been abandoned or not pressed at the argument in the Superior Court, it will not be considered in the Supreme Court.
    Argued Jan. 29, 1912.
    Appeal, No. 63, Oct. T., 1912, by Andrew Hein, from judgment of Superior Court, April T., 1911, No. 131, affirming order of Q. S. Allegheny Co., Sept. T., 1909, No. 5, dismissing exceptions to report of viewers In re Chartiers Creek Bridge.
    Before Fell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from judgment of Superior Court.
    The opinion of the Superior Court states the case. See Chartiers Creek Bridge, 48 Pa. Super. Ct. 106.

      Error assigned, was the judgment of the Superior Court.

      Robert T. Olever and EcJcles & Oonrad, for appellant.

      W. H. S. Thomson, of Thomson & Thomson, for appellee.
    March 18, 1912:
   Per Curiam,

This appeal must be dismissed for the reason that the appellant has no standing to be heard on the questions raised by the assignments of error. It was alleged in the petition for the allowance of an appeal that the case involved the constitutionality of the Act of May 8,1909, P. L. 494, and of the Act of February 24, 1873, P. L. 155. And in the order allowing the appeal it was stated that the appeal was allowed for the reason that a constitutional question was involved. This did not bring up the whole case for review, but only the specific question on which an appeal was allowed.

It appears from the record that the question of the constitutionality of the Act of 1909 was not raised in the Superior Court at any stage of the proceedings by this appellant, and it appears from the opinion of that court that the assignment relating to the constitutionality of the Act of 1873 was not pressed at the argument and it was conceded not to be well founded.

Where an order allowing an appeal from the Superior Court states that the appeal is allowed because a constitutional question is involved, the argument here will be limited to that question. Where an assignment of error has been abandoned or not pressed at the argument in the Superior Court, it will not be considered here.

It is just to counsel to say that there was no intention to mislead the court by the allegations in the petition. Two appeals by parties having similar interests were argued together in the Superior Court and disposed of in the same opinion. One of these appeals, but not that of the appellant here, raised the question of the constitutionality of the Act of 1873, and the action of the Superior Court on the assignments in both appeals has been assigned as error here. They are not both before us and our review is limited to the assignments by the appellant.

The decree is affirmed at the cost of the appellant.