author: Me. Justice Pottee,

text:
    Fidelity Trust Company v. Lehigh Valley Railroad Company, Appellant.

      Corporations — Stock—Preferred and common stock — Dividends—Cumulation.

    Where the holders of preferred stock of a corporation are declared by the charter of the company to be entitled to a fixed sum per annum, without limiting the sum to be paid as dividends to profits earned when made within a designated period, the holders of the preferred stock have a prior claim over the common stockholders on subsequent dividends to make up the deficiency.
    The Act of March 4, 1850, P. L. 129, incorporating the Beaver Meadow Railroad and Coal Company, authorized the issue of preferred stock, and provided a§ follows: “And the said additional stock so issued shall be entitled to a preference over all the other stock of the said company, in every future dividend of profits which may be declared by the said company, until the holders of such additional stock shall have been paid from the funds applicable to the payment of such dividend, ten per cent per annum on the amount of the capital stock of the company represented by said shares of additional stock so held by them respectively; and the holders of the other stock of the company shall not be entitled to participate in any future dividend of the profits of the company until the holders of said additional stock shall have been paid from the funds applicable to such dividend, ten per cent per annum on the amount of the capital stock of the company represented by said additional shares so held by them respectively.” Held, that the dividends on the preferred stock were cumulative.
    Where in three particular years the preference stock was paid a ten per cent dividend, and a like dividend was paid on the common stock, and an extra dividend was also divided equally between the preferred and common stock, and there followed a series of years in which no dividends were paid, the preference shareholders, on the resumption of dividends, are entitled to arrearages without any deduction for the share of the extra dividend which they received.
    Argued March 27, 1906.
    Appeal, No. 54, Jan. T., 1906, by defendant, from decree of C. P. No. 5, Philadelphia Co., June Term, 1905, No. 8,844, on bill in equity in case of Fidelity-Trust Company, Trustee, et al., v. Lehigh Valley Railroad Company.
    Before Mitchell, C. J., Fell, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Ralston, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      June 27, 1906:

      John G. Johnson, for appellant.
    The preferred stock is not cumulative: Elkins v. Camden & Atlantic R. R. Co., 36 N. J. Eq. 233.
    If it be cumulative, there is no right on the part of the holders of the preferred shares to deny payment of dividends on common shares, excepting to such extent as said holders prior to J une, 1904, had not received dividends at the rate of ten per centum per annum from the time of original issuance thereof: Wright v. Hanna, 210 Pa. 349.

      II G ordon Me Vouch and Samuel Dickson, with them Henry S. Drinker, Jr., Stacy B. Lloyd, G. Heide Norris and Crawford & Loughlin, for appellees.
    The terms of the contract contained in the Act of March 4, 1860, P. L. 129, make the dividends on the preferred stock cumulative: Henry v. Ry. Co., 1 DeG. & J. 606; Webb v. Earle, L. R. 20 Eq. 556; Crawford v. Ry. Co., 3 Jur. N. S. 1093; Corry v. Ry. Co., 29 Beav. 263; Allen v. Ry. Co., 25 W. R. 524 ; Matthews v. Ry. Co., 5 Jur. N. S. 284; Prouty v. R. R. Co., 1 Hun, 655; Boardman v. Lake Shore, etc., Ry. Co., 84 N. Y. 157; Elkins v. Camden, etc., R. R. Co., 36 N. J. Eq. 233; West Chester, etc., R. R. Co. v. Jackson, 77 Pa. 321.
    The appellees are entitled to their arrears without any de-. duction for past overpayments: Chicago, etc., Ry. Co. v. Ry. Co., 101 Fed. Repr. 792.
   Opinion by

Me. Justice Pottee,

The facts of this case were not in dispute, and are clearly and accurately stated by the learned trial judge, as follows: “ The original complainants in this case, and others who have intervened, are owners of shares of preferred stock of the Le-high Valley Railroad Company, respondent.

“ Under the terms of an act passed by the legislature of Pennsylvania, approved March 4, 1850, P. L. 129, the Beaver Meadow Railroad & Coal Company was authorized to issue preferred stock which was entitled to a preference over all other stock of said company in every future dividend of profits declared, until the holders were paid from the funds applicable to the payment of such dividend, ten per cent, per annum. It was further enacted that the holders of all the other stock of the company should not be entitled to participate in any future dividend of the profits of the company until the holders of preferred stock had been first paid from the funds applicable to such dividend ten per cent, per annum.

“ On June 18,1864, an agreement was entered into between the Beaver Meadow Railroad & Coal Company and the Lehigh Valley Railroad Company, under the provisions of the Act of May 16, 1861, P. L. 702, relating to the merger of railroad corporations, by which a merger of the two corporations was effected.

“ By this agreement the property of the Beaver Meadow Railroad & Coal Company was transferred to and vested in the Lehigh Valley Railroad Company. It was agreed that the holders of preferred stock of the Beaver Meadow Railroad & Coal Company should be entitled to preferred stock to be issued by the Lehigh Valley Railroad Company, securing the same rights and privileges with respect thereto as were held and enjoyed by them in the Beaver Meadow Railroad & Coal Company.

“ Dividends upon the preferred stock were paid at the rate of ten per cent, until October 17, 1898. In addition thereto, on January 2, 1860, an extra dividend of ten per cent, on the preferred stock, as well as upon the common, of the Beaver Meadow Railroad & Coal Company was paid in shares of common stock, except where such dividends amounted to a fractional part of a share, when the payment was made in cash at the rate of $50.00 per share.

“ In 1861 a regular dividend of ten per cent, was paid on both common and preferred stock. In 1862 ten per cent, was paid on preferred stock, but only eight per cent, was paid on common stock.

“ On January 2, 1863, an extra dividend of ten per cent, was declared and paid in stock, and on January 2,1866, a dividend of ten per cent, of the same character was paid by the Lehigh Valley Railroad Company. The regular dividend of ten per cent, was paid each year upon the preferred stock until 1893. In 1876 nine per cent, only was paid to the common stockholders, and during the years from 1877 to 1893 the annual dividend upon the common stock was from six to eight per cent. No dividends were declared on either the preferred or common stock from October 17, 1893, until June 20, 1904, when a dividend of ten per cent, was declared on the preferred stock, payable August 1, 1904, and a dividend of one percent, on the common stock.

“ A bill in equity was filed by the holders of the preferred stock, praying for a decree declaring them entitled to cumulative dividends at the rate of ten per cent, per annum before the payment of any dividends to the holders of common stock; for an order directing the specific performance of the agreement of merger between the corporations, and for an injunction enjoining the payment of dividends to holders of common stock until the preferred stockholders had been paid at the rate of ten per cent, per annum from October, 1893.

“An answer and replication were filed and testimony taken in support of the allegations contained in the bill and in the answer which was amended at the hearing.”

Under these facts two questions arose which are thus stated by appellant:

“ Whether the holders of preferred shares were entitled cumulatively, to dividends at the rate of ten per centum per annum from the time of issuance thereof, before the holders of common shares were entitled to any dividends.

“ Whether, if thus entitled, their right was to an amount in excess of ten per centum per annum from the date of original issuance of shares, there having been paid to them, in some years, dividends in excess of ten per centum per annum.”

The court below decided both these questions adversely to the defendant company, and finally decreed “ That by virtue of the provisions of the Act of Assembly of Commonwealth of Pennsylvania, March 4, 1850, P. L. 129, and the execution of the articles of merger between the Beaver Meadow Railroad and Coal Company dated June 18, 1864, and the issue of the Lehigh Valley Railroad Company of its preferred stock thereunder, the Lehigh Valley Railroad Company specifically contracted that the holders thereof should be entitled to cumulative dividends thereon at the rate of ten per cent, per annum before the payment of any dividend to the holders of its common stock.

“ The Lehigh Valley Railroad Company is hereby perpetually enjoined from making any payments of dividends to the holders of its common stock until it shall have paid the holders of its preferred stock, dividends at the rate of ten per cent, per annum from October 17, 1898.

“ Judgment is hereby entered in favor of the complainants against the defendant for the sum of $91,338.85, being ten per cent, per annum from October 17, 1893, to August 1,1903, on 1,714 shares of preferred stock of the par value of $83,892 with interest at the rate of six per cent, per annum from August 1, 1904; the various complainants being entitled to the proportion of said sum which the number of shares held by him, her or it bears to the whole 1,714 shares held by them in the aggregate.”

From this decree defendant has appealed.

As to the first question, whether or not the dividends upon the preferred stock are under the contract cumulative, we feel that sound reason, and, the weight of authority, both English and American, are in accordance with the conclusion reached by the court below.

The act of March 4, 1850, under which the preferred stock was issued, provides as follows: “ And the said additional stock so issued shall be entitled to a preference over all the other stock of the said company, in every future dividend of profits which may be declared by the said company, until the holders of such additional stock shall have been paid from the funds applicable to the payment of such dividend, ten per cent per annum on the amount of the capital stock of the company represented by said shares of additional stock so held by them respectively; and the holders of the other stock of the company shall not be entitled to participate in any future dividend of the profits of the company until the holders of said additional stock shall have been paid from the funds applicable to such dividend, ten per cent per annum on the amount of the capital stock of the company represented by said additional shares so held by them respectively.”

There is no provision in the statute bearing directly upon the question of cumulation, and in the absence of any specification to the contrary the general rule would seem to be, that the preferred stock is entitled to arrears. While the act specifies that the preferred stockholders are to be paid from the profits, ten per cent per annum, before the holders of other stock are entitled to participate at all, we can see in the language no limitation that the rights of the preferred stockholders are conditional upon the earning of sufficient profits each year to discharge their claim. No matter in what form the guarantee of dividends may be made, they can be paid only out of the net profits. An agreement to pay even though there be no profits, would be void as against public policy. Since their payment then depends upon profits, it would be postponed during years of business depression which showed no net profits. In the present case there is no guarantee of profits, or of payment of dividends every year, but there is an agreement that whenever there are profits to divide the holders of preferred stock shall receive of them at the rate of ten per cent per annum on the amount of his holding.

In 9 Am. & Eng. Ency. of Law (2d ed.), 699, the prevailing principle applicable to such a situation is thus summed up: “ The general rule is that where the holder of such preferred stock is declared to be entitled to a fixed sum per annum, without limiting the sum to be paid as dividends to profits earned when made within a designated period, the holder of the preferred stock has a prior claim over the common stockholders on subsequent dividends to make up the deficiency.”

In 1 Morawetz on Priv. Corp. (2 ed. 1886) sec. 458, it is said that “ If a corporation has agreed or guaranteed that the holders of preferred shares shall be paid dividends at a certain rate per annum, and the profits at any time are insufficient to enable the company to perform its agreements, the arrears must be made up out of profits subsequently earned; and no dividends can be paid to the holders of the common shares until the preferred shareholders have been fully paid.” And in 2 Clark & Marshall on Priv. Corp. (190) sec. 529 d, the rule is thus stated: “If the contract with the preferred stockholders guaranteed or entitled them in general terms to a certain annual dividend, not making the dividend payable in each year dependent upon the profits of that year, the dividends are cumulative ; and if the profits in any year are not sufficient to pay the dividend, it must be paid, in addition to subsequent dividends, out of the profits of subsequent years, before any dividends can be paid to the holders of common stock.”

And again in 1 Cook on Stockholders, section 273, we find the decisions summarized, and the further suggestion that the rule as stated is in accord with the usages of the business community. The author says, “ If preferred stock is issued, with out any mention of whether or not the dividends are cumulative, then the law makes it cumulative. As soon as there are net profits available for dividends, the corporation must pay the preferred dividends and all arrears thereon before a dividend is declared on the common stock. This is a well-settled rule at common law in this country and in England, and is not only equitable, but is in accord with the understanding of the business community. The right of the preferred stockholders to arrears of dividend is not deemed waived by delay, nor in any way, except upon clear proof of intent to waive.”

We regard the decision of this court in West Chester, etc., R. R. Co. v. Jackson, 77 Pa. 321, as covering substantially the same question as that now before us ; and under the ruling in that case, the defendant company here is liable for the arrears in the payments of dividends at the rate of ten per cent per annum. It seems to us that a reasonable construction of the contract requires us to hold that it means simply that whenever there are profits to divide the company is to see to it that the holder of preferred stock has received the stipulated amount of ten per cent per annum before making any award to the other stockholders. The case of Henry v. Great Northern Ry. Co., 1 DeG. & J. 606 (638), is recognized as the leading authority on the subject under consideration, and Lord Cranworth there makes a suggestion which has much force, as a reason for the view he adopts. He says, “ If the directors are, as probably they will be, ordinary shareholders, they will have an interest so from time to time to set aside portions of their funds for the benefit of the company in the next half year as to prevent the preference shareholders from receiving a dividend in full, and they will thus create a larger fund for the division on the next occasion, the entire benefit of which, on the argument of the defendant, will accrue to the benefit of the ordinary shareholders. . . . When I see that on one construction of those acts the legislature will have given to the directors an interest in opposition to their duty, and that on the other construction they will not have done so, I am led strongly to believe that the latter is the sounder interpretation.”

In the present ease, it is manifest that a great advantage to the other stockholders would accrue, if the preferred stock bo considered as noncumulative. No such object was of course before the directors in refraining from the payment of annual dividends, but the possible result shows how such a power might be exercised to deprive the preferred stockholders of their contract rights, and a construction that would permit of such a result is to be avoided. We are of the opinion that the dividends upon preferred stock were properly held to be cumulative.

Turning now to the second question. Are the preferred stockholders to be charged, as against the amount in arrears for the years from 1893 to 1901 with the amount paid in excess of ten per cent during the years 1860,1863 and 1866 ? The preference created by the statute gave to the holders of the preferred stock, the right to receive $5.00 per share per annum on each share of stock held by them, before the other stockholders were entitled to anything. That was the extent of the preference. If the funds applicable to a dividend amounted to just enough for that purpose the other stockholders took nothing. But when each class of stock had been paid ten per cent, they were equal, and equally entitled to partake of whatever remained in the fund applicable for dividend purposes. The preferred stockholders were not creditors, nor was the amount paid to them in excess of ten per cent in any one year to be charged to them as an advance payment upon any future dividends that might be earned or divided in coming years. There was no preference shown in the distribution of these extra dividends. All the shareholders fared alike in so far as they were concerned. The preference created under the act of assembly went only so far as to give to the preferred stockholders a right to claim the first proceeds out of the fund applicable to dividends, to the extent of $5.00 per share, per annum on their stock, and no farther. After that amount was paid the common stockholders were entitled to participate, and did so participate, taking during the years when the extra dividends were paid, the same amount per share, as the preferred stockholders. So that the extra payments during the years mentioned cannot be considered as overpayments to the holders of preferred stock. If the preferred stockholders had been limited, under the terms of the contract, to ten per cent per annum in any one year, and all the balance of the fund had belonged exclusively to the common stockholders, then the contention that these extra dividends should be set off as against the arrears would be sound. But there is no such limitation in the act. The preferred stockholders stood upon the same plane as the others, with the additional advantage that they had the first right to partake in the distribution of profits up to the limit of 15.00 per share per annum, and if necessary, the whole amount of the profits might be taken for that purpose, even if thereby the other stockholders were excluded. We agree with the conclusion of the learned court below, that the holders of preferred stock are entitled to have the arrears paid to them by the defendant company, without any deduction on account of dividends paid at a time when there had been no deficit. In so far as the excess of such payments over the ten per cent per annum to the preferred stockholders was concerned, it was declared not as a matter of preference, but as an equal distribution to all stockholders.

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


source: Caselaw Access Project

author: Mr. Justice Potteb,

license: Public Domain

text:
    M’Guire v. Lehigh Valley Railroad Company, Appellant.

      Negligence — Railroads—Master and servant — Bridge.
    Where a railroad company commits the designing and construction of a bridge into the hands of competent and skilled engineers, it is not obliged to accept the suggestion of the bridge contractor with regard to the amount of riprapping needed around a pier.
    A railroad company is bound to exercise the highest degree of care in the construction of its bridges for the use of its trains. But the standard of duty is not to be fixed in this respect by the caprice of a jury of uninformed men.
    The burden of proof of showing that a railroad company has not exercised proper care in choosing its officers or employees for a particular purpose, rests upon those who assert it.
    In an action against a railroad company to recover damages for the death of a brakeman employed by the company, it appeared that the deceased was thrown into a river, and drowned, by the collapse of one span of a railroad bridge. The deceased was, at the time of the accident, engaged with others in placing heavily loaded freight cars upon the bridge for the purpose of holding it in position, and preventing it from being washed away by an extraordinary flood then prevailing. The pier in question was built in accordance with the plans and specifications furnished by the engineers of the company, whose skill and competency were not questioned. One of the engineers testified that in his judgment the amount of riprapping around the pier was entirely sufficient. The bridge contractor testified that more riprap work should have been placed around the pier. Held, that it was error to submit the case to the jury, and that binding instructions should have been given for the defendant.
    Argued April 10, 1906.
    Appeal, No. 103, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1902, No. 578, on verdict for plaintiff in ease of James M’Guire and Margaret M’Guire, parents of James M’Guire, v. Lehigh Valley Railroad Company.
    Before Mitchell, O. J., Mestbezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for §3,075. Defendant appealed.

      Error assigned was in refusing binding instructions for the defendant.

      J. B. Woodward, of Woodward, Barling & Woodward, with him II. W. Palmer, for appellant.
    It was error to submit the case to the jury: Brommer v. Ry. Co., 205 Pa. 432; Morrison v. Davis & Co., 20 Pa. 171; McCauley v. Logan, 152 Pa. 202; Derr v. R. R. Co., 158 Pa. 365; Golwitzer v. R. R. Co., 1 Mona. 72; Sykes v. Packer, 99 Pa. 465; Nuss v. Rafsnyder, 178 Pa. 397.

      John T. Lenahan, with him Edward A. Lynch, for appellees,
    cited: Brown v. Ry. Co., 183 Pa. 38 ; Berninger v. R. R. Co., 203 Pa. 516 ; Lehigh Bridge Company v. Lehigh Coal and Navigation Co, 4 Rawle, 9; Livezey v. Phila., 64 Pa. 106; Baltimore and Ohio R. R. Co. v. Sulphur Spring School Dist., 96 Pa. 70; Helbling v. Cemetery Company, 201 Pa. 171.

      June 27, 1906:
   Opinion by

Mr. Justice Potteb,

On the night of February 28,1902, James M’Guire, a brakeman in the employ of the defendant company, was thrown into the Lehigh river, and drowned, by the collapse of one span of a railroad bridge. He was, at the time of the accident, engaged with others in placing heavily loaded freight cars upon the bridge for the purpose of holding it in position, and preventing it from being washed away by an extraordinary flood then prevailing.

The decedent was unmarried, and lived with his parents, and they have brought this suit, alleging negligence upon the part of the defendant company in the construction of the pier which gave way before the flood. The pier in question was built in accordance with the plans and specifications furnished by the engineers of the company. The skill and competency of the engineers are not questioned.

The pier had a base of solid concrete, about fourteen feet thick, and upon this the stone work was erected. The manner in which the work was done, is thus described by the chief engineer, under whose supervision the bridge was designed and erected. “In the construction of the foundations of the piers for which Mr. Hendler had the contract, the method used was to first dredge out the soft material forming the material at the bottom of the pool back of the dam. It consisted of mud and muck, sawdust and different material of that kind, soft material. That was dredged out. That was dredged out until the dredge bucket scraped the hard bottom. We then sounded that bottom with iron rods, and passed upon it as being sufficiently firm to support a bridge of that character. The bottom would be best described as bowlders and compact gravel, a hard mass. Then the contractor built the cofferdam or caisson, consisting of a wooden box eighteen feet wide, about fifty-eight or sixty feet long and about thirty feet high. That was built in the water, and as it grew in height, sunk down. There was no top or bottom to it, simply four sides. When that reached the bottom the bottom was still further excavated inside this box after it had come down to the bottom, and cleaned out with an orange-peel bucket we subsequently furnished to Mr. Hendler for that purpose until the bottom was well cleaned off, and then sounded over with rods to make sure it was hard, and then the concrete put in immediately thereafter. The concrete base filled this box on all sides, that is, it was eighteen feet wide, about fifty-eight or sixty feet long, and it was at pier two in question fourteen feet high.”

The engineer further explained the process of riprapping, and what was done in that respect, at this pier. After describing the size of the large stones used, he said, “We put that riprapping around the pier on all sides; upstream, downstream, both sides, varying in height,vertical along the outside of the wooden caisson from ten to twelve feet high, and running out from the caisson horizontally that way about from eight to ten feet. The total yardage deposit of new riprap stone brought there for the purpose by Hendler and deposited around that pier No. 2 was as per the payment we made to him for that purpose, 371 cubic yards.”

In addition to this, about 100 yards of old material was placed around this pier, beside the new stone. The engineer testified that in his judgment the amount was entirely sufficient, and that if he had not thought so, he would liave ordered more, as the matter was entirely in his hands, and under his control.

Now as against this testimony of a skilled and competent engineer, the record shows that the contractor who built the pier, under the direction of the engineers, was of the opinion that more riprap work should have been placed around the pier. And because of this difference of opinion between the engineers and the contractor, the trial judge allowed the case to go to the jury, to determine who was light, and permitted the jury to say that the company was negligent in relying upon the judgment of its engineer, rather than upon that of its contractor.

If the fact had been the other way, and the company had followed the suggestion of the less skilled adviser, there would have been room for criticism. But having obtained the services of skilled engineers, against whose capacity there is not the slightest imputation, it would be unreasonable to allow a jury to say that the company was negligent in resting upon the judgment of these competent men. It is not enough for the plaintiffs to show that in some particulars the contractor who did the work differed in opinion with those who made the plans and specifications under which he worked. This was a question of the sufficiency and character of a structure which could only be determined by the exercise of professional skill, and great practical knowledge. It was a problem in engineering, and from its very nature it was something which a jury is not competent to decide. A railroad company is bound to exercise the highest degree of care in the construction of its bridges for the use of its trains. But the standard of duty is not to be fixed in this respect by the caprice of a jury of uninformed men.

The general rule was pointed out by this court in Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185, that the burden of proof of showing that the defendant has not exercised proper care in choosing its officers or employees for a particular purpose, rests upon those who assert it. Our own cases and those of other states are there cited to sustain the principle, thus: “ In Wonder v. Baltimore & Ohio R. R. Co., 32 Md. 411, the supreme court of that state said : ‘ If, therefore, the defect in the brake that caused the injury, existed by reason of the neglect or want of care on the part of such employees of the defendant, the latter cannot be held liable, unless there has been negligence in the selection of those servants, and the onus of proof of such negligence is on the plaintiff.’ In the Pittsburg, Ft. Wayne & Chicago Ry. Co. v. Ruby, 38 Ind. 294, it was held that the plaintiff must show ‘ that the defendant had not exercised ordinary care and prudence in the employment of such person.’ The supreme court of Massachusetts, and the court of errors and appeals of New York have laid down a similar rule: Albro v. Agawam Canal Co., 60 Mass. 75; Gilman v. Eastern R. R. Co., 92 Mass. 233; Wright v. N. Y. Central R. R. Co., 25 N. Y. 562. Tbe same doctrine is recognized in Feltham v. England, L. R. 2 Q. B. 33, and in our own case of Frazier v. Pennsylvania R. R. Co., 38 Pa. 104.” And the supreme court of Indiana has expressed the same principle, in saying that “ County officers are not negligent in accepting a bridge containing defective timbers which an expert, employed by them to determine that question, honestly believes sufficient. A mistake in respect to the safety of a bridge made by a competent person employed by the proper county officers to examine it and put it in good repair, will not make the county liable if it remains unsafe : ” Vermillion County v. Chipps, 131 Ind. 56.

The trial judge correctly said that the defendant company was only bound to construct and maintain a reasonably safe bridge, and one reasonably suited for the purpose for which it was intended. But he was inconsistent in leaving the question to the jury, for there was no evidence to show any failure to discharge this duty. It was no ordinary occasion which wrecked this bridge, it was a most extraordinary flood, complicated further by the giving way of the dam below, which induced a strong sidewise current, which overturned the pier sidewise. The authorities upon this aspect of the case are thus summed up : “A railroad company is not bound to furnish absolutely safe machinery to an employee, but only such as is reasonably suitable for the purpose for which it is intended, and to exercise ordinary care to see that it is kept in such a condition. Applied to the case of an injury in consequence of a defect in a railroad bridge, the rule is said to be that a railroad company which uses ordinary care to see that a bridge on its right of way is so constructed as to be reasonably safe, and subsequently employs competent and careful inspectors who use ordinary care in inspecting it, to see that it is kept in a reasonably safe condition, is not liable to an employee for an injury received on such bridge:” 4 Thompson on Negligence (2d ed. 1904), sec. 4251. And where competent engineers pass upon the sufficiency of a structure, and decide that it is safe, the employer will not be answerable as for negligence, in case of an honest mistake of judgment made by such men. To hold otherwise would be to make the employer insure the infallibility of the judgment of its employees.

In a suit for damages occasioned by an overflow from a city sewer, we said: “ There was no negligence, but want of judgment, and the municipality cannot be made liable in damages for the mistake which may be committed by its officers in the honest, fair exercise of their duties: ” Collins v. Phila., 93 Pa. 272, 276. This case was followed in Sheib v. Collier Twp., 8 Sad. 526, where the damage was caused by the damming of water by a bridge claimed to have been negligently constructed.

We find nothing in the evidence in this case to show that the defendant company did anything more or less than to commit the designing and construction of the bridge into the hands of competent and skilled engineers. And having done so, it did not, either through its engineers or other officers, accept the suggestion of the contractor with regard to the amount of rip-rapping needed around the pier. There being in this conduct nothing sufficient to sustain a charge of negligence, it is not necessary to discuss the question of the assumption of the risk by the employee.

The second assignment of error is sustained, and the judgment is reversed.


author: Mr. Justice Stewart,

text:
    Towner v. Public Ledger Company, Appellant.

      Negligence — Sidewalk—Hatchway—Question for jury.

    In an action for personal injuries it appeared that the plaintiff without negligence on his part, stepped upon an iron door covering a hatchway in the pavement of defendant; the door not supporting him he was precipitated to the bottom of the hatchway. There were two doors over the hatchway so constructed that when closed they made an even surface with the pavement. Each was supported by a bar of about two and a half inches, on the side against which it opened on hinges attached to a stationary iron frame; and on the side next the building they rested upon a movable iron sill or bar. There was evidence that the hinges were defective, and that the doors could not fall unless the hinges broke. Held,, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued March 19, 1906.
    Appeal, No. 1, Jan. T., 1906, by defendant, from judgment of C. P., No. 4, Phila. Co., Dec. T., 1904, No. 2,424, on verdict for plaintiff in case of James L. Towner v. Public Ledger Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Audenried, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $10,760. Defendant appealed.

      June 27, 1906:

      Error assigned was in refusing binding instructions for defendant.

      D. Stuart Robinson, for appellant.
    The defendant contends that, from the evidence produced at the trial, it was shown that the broken hinge could not have been the cause of the accident, and that the movable sill being out of place was the cause of the accident, and that it was out of place through the act of the fellow servant of the plaintiff; and that this negligence was the negligence of the fellow servant of the defendant and the primary efficient proximate cause of the accident: Schaeffer v. Jackson Twp., 150 Pa. 145; Boehm v. Bethlehem Boro., 4 Pa. Superior Ct. 385.
    The rule is well settled that the injury must be the natural and probable consequence of the negligent act, without probable foresight, and if the facts as to the cause of the injury are not disputed the question of proximate cause becomes one of law for the determination of the court: West Mahonoy Twp. v. Watson, 116 Pa. 344; Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. 293; Douglass v. N. Y. C. & H. R. R. R. Co., 209 Pa. 128; Gudfelder v. Ry. Co., 207 Pa. 629; Penna. R. R. Co. v. Hope, 80 Pa. 373.

      Ruby R. Vale, with him Edward W. Magill, for appellee,
    cited: Lillie v. American Car & Foundry Co., 209 Pa. 161; Schiglizzo v. Dunn, 211 Pa. 253 ; Dickson v. Hollister, 123 Pa. 421; Glase v. Philadelphia, 169 Pa. 488; Grier v. Sampson, 27 Pa. 183; Snader v. Murphy, 19 Pa. Superior Ct. 35.
   Opinion by

Mr. Justice Stewart,

The plaintiff, admittedly without negligence on his part, stepped upon an iron door covering a hatchway in the pavement used and maintained by the defendant in connection with its business; the door not supporting him he was precipitated to the bottom of the hatchway, sustaining by his fall very serious bodily injury. There were two doors over the hatchway, so constructed that when closed they made an even surface with the pavement. Each was supported by a bar of about two and a half inches, on the side against which it opened on hinges attached to a stationary iron frame; and on the side next the building they rested upon a movable iron sill or bar.

The theory on which plaintiff based his right to recover against the defendant was, that two causes concurred in occasioning the accident which resulted in his injuries; that these were so united that it cannot be said of the one more than the other that it was the proximate cause, — the displacement of the iron bar at the end next the building, and defectively or insecurely fastened hinges on the iron door upon which plaintiff stepped and which fell under his weight. It cannot be questioned that there was ample evidence to warrant an inference by the jury in accordance with this theory. Its sufficiency will appear by reference to the testimony in the case yet to be made.

Conceding the contention on behalf of appellant that it was not chargeable with negligence on account of the displacement of the iron bar or sill, how was it with respect to the hinges ? We must assume that .the hinges were defective, and that without their contribution the accident would not have happened. Such was the finding of the jury; and there was evidence in support of both propositions. Unsupported by the rod or sill, with the hinges properly secured, according to the testimony of Rowand, the mechanical engineer who had designed the doors for the hatchway, and under whose supervision they had been constructed and put in place, the doors would have been perfectly safe to pedestrians. Notwithstanding some apparent contradictions in the answers given by the witness, his testimony is entirely intelligible. Were there room for dispute as to this, still what he meant, and the effect of his testimony, were matters for the determination of the jury. There can be no dispute that he did say that the hinges were designed to hold part of the weight of the doors, and that even without the support of the sill, they would, if in good condition, hold the door in place with the weight of an ordinary person upon it. He testified that the hinges turned both ways, that is to say, they would admit of the doors being lifted above, or if unobstructed, they would allow them to fall below the surface of the hatchway. But, as he explained, the hinges were not fastened, at the extreme edge of the iron frame so as to allow of the lowering of the doors, but an inch or so back, so that the doors where the hinges attached rested upon what he called a lip of the iron frame, and were thus held in place and prevented from falling downward. If such was their construction, it is evident that even in the absence of the sill, the doors could fall only as the hinges broke. With this evidence in the case, the question fairly and necessarily arose — did defendant owe a duty to maintain the hinges in safe condition, in view of the purpose they served by way of giving this additional support to the doors ? Whether, because of the original construction, or as a result of long continued use, the iron sill was so liable to easy displacement in its use, or from other causes, by being tilted or moved back, ordinary and reasonable prudence under all the circumstances of the case would have anticipated the danger from outworn and defective hinges on the doors, was certainly a question for the jury. It would have been manifest error for the court to have given binding instructions as requested by the defendant, since it was a case where inferences were to be drawn, and the credibility of witnesses settled, and this was for the jury and not for the court.

The first two assignments of error are based on the refusal of the court to give binding instructions; the third upon the refusal of a motion for nonsuit. They are alike overruled, and the judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Beeman, Appellant, v. Supreme Lodge, Shield of Honor.

      Evidence — Presumption—Mailing of letter — Receipt of letter.

    The presumption that a letter mailed in the morning and addressed to a person in the same city, will be delivered on the same day, is overcome by the evidence of the person addressed that he did not receive the letter on that day, supported by testimony of the letter carrier that the letter by its postmark showed that it was not received at the post office until three hours after the last delivery, and that in the usual course of mail it would not be delivered until the following morning.

      Beneficial associations — Payment of dues — Payment by mail — Forfeiture of membership.

    Where the by-laws of a beneficial association provide that “each member shall pay the amount according to age, as per table, and any member failing to pay same before the last meeting night of each month shall stand suspended from the order and all benefits therefrom,” payment by- cash mailed on the last day of the month, but not received by the association until the following day, is not a payment within the meaning of the by-law, and failure to make the payment within the time prescribed works a suspension of the member without any action, on the part of the association.

      Beneficial associations — Forfeiture of membership — By-laws—Remedy.
    Where the by-laws of a beneficial association provide that, in case of-' a dispute about suspension or expulsion, no suit shall be brought against the association until “the remedies and means of redress” provided by the association shall be exhausted, a beneficiary cannot maintain a suit against the association, where it appears that neither the member nor the beneficiary sought in any way to avail himself of the remedies- and means of redress provided by the association. Such by-laws are binding upon the association and its members.
    Argued March 26, 1906.
    June 27, 1906:
    Appeal, No. 85, Jan. T., 1906, by plaintiff, from judgment of Superior Ct., Oct. T., 1905, No. 77, reversing judgment of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 3,054, on verdict for plaintiff in case of Diana Beeman v. Supreme Lodge, Shield of Honor.
    Before Mitchell, C. J., Fell, Potter, Elkin and Stewart, JJ.-
    Affirmed.
    Appeal from Superior Court.
    The facts are stated in the opinion of the Supreme Court and by the report of the case in 29 Pa. Superior Ct. 387.

      Error assigned was the decree of the Superior Court.

      Ardemus Stewart, with him Rome J. Moorhead and Harry S. Ambler, Jr., for appellant.

      Robert J. Byron, with him Edmund W. Kirby, for appellee.
   Opinion by

Mr. Justice Elkin,

The first question to be determined on this appeal is whether there was sufficient evidence to submit to the jury as to the payment of the assessment at the time required by the rules of the society. The plaintiff testified at the trial that she deposited in the mail about nine o’clock in the morning in the city of Philadelphia, a letter containing a sufficient amount of money to pay the assessment, which could be paid any time during that day. It is therefore contended that this is sufficient to raise a presumption of payment under the rule which holds that the depositing in the post office of a properly addressed letter with prepaid postage raises a natural presumption, founded in common experience, that it reached its destination by due course of mail: Susquehanna Mutual Fire Insurance Company v. Tunkhannock Toy Co., 97 Pa. 424; Folsom v. Cook, 115 Pa. 539; Whitmore v. Insurance Co., 148 Pa. 405; Jensen v. McCorkell, 154 Pa. 323; Neubert v. Armstrong Water Company, 211 Pa. 582. In these cases it was held that the mailing of the letter is prima facie evidence that it was received by the person to whom it was addressed, but that the prima facie proof may be rebutted by evidence showing that it was not so received. Under this rule the presumption fairly arises that a letter mailed in the city of Philadelphia at or before nine o’clock in the morning would reach the person to whom it was addressed, living in the same city, by due course of mail the same day. It must not be overlooked, however, that this is only a presumption which may always be rebutted by evidence showing that it was not so received. The financial secretary testified that when he left home at 8 P. M. on the day the letter was said to have been mailed, it had not yet reached his residence, to which the letter had been addressed. He reported the nonpayment of the assessment to the society, when the usual question was asked whether anyone present would pay the assessment for the delinquent member. No one volunteering to do so he was reported suspended, notice of which suspension was given the delinquent member and the amount of the assessment returned to him. As to the nondelivery of the letter the same day it was mailed, the financial secretary is corroborated by Shaw, the letter carrier, who being shown the envelope testified that the letter was not received at Station C until 8 p. M. of March 30, three hours after the last delivery from that station, and in the usual course of mail would not be delivered until the following morning. It was not delivered the next morning until the financial secretary had left his home, and he did not receive it until his return in the evening. The undisputed testimony leaves no doubt as to these facts. They are sufficient to rebut the presumption of payment on March 30th. McSparran v. Insurance Company, 193 Pa. 184, rules the case in this respect. It was there held that the prima facie evidence of the receipt of the letter by due course of mail was fully rebutted by the post mark on the envelope showing that the letter had not been received until several weeks after it had been mailed. It is attempted to distinguish that case from the one at bar by the fact that the envelope in the present case was not introduced in evidence. This objection is too technical to be convincing. While no formal offer was made introducing the envelope in evidence, yet it was identified and shown to the letter carrier, who recognized the post mark and testified the hour when it was re-, ceived at the sub-station too late to be delivered that day. There can be no doubt about these being the facts, and they are sufficient to rebut the presumption that the letter was delivered on the day it was mailed.

The Superior Court in reversing the judgment of the common pleas held that as Beeman did not follow the method pointed out by the by-laws to secure his reinstatement in the lodge, and as the beneficiary likewise did not adopt such method upon the refusal of the lodge to pay the death benefits, the present action cannot be maintained. The ruling in this respect is based upon sections 165 and 398 of the by-laws of the defendant society. We do not see how there can be any escape from this position. In Black & White Smiths’ Society v. Vandyke, 2 Whart. 309, Mr. Justice Gibson, in discussing this question, said: “ Into the regularity of these proceedings, it is not permitted us to look. The sentence of the society, acting in a judicial capacity and with undoubted jurisdiction of the subject-matter, is not to be questioned collaterally, while it remains unreversed by superior authority. If the plaintiff had been expelled irregularly he has a remedy by mandamus to restore him. But neither by mandamus nor action can the merits of his expulsion be re-examined. He stands convicted by the sentence of a tribunal of his own choice, which, like an award of arbitrators, concludes him.” To the same effect is Commonwealth ex rel. Bryan v. Pike Beneficial Society, 8 W. & S. 247; Society v. Commonwealth, 52 Pa. 125; Commonwealth v. Union League, 135 Pa. 301. The learned counsel for appellant recognizes the force of this position, but insists that it is in the nature of a plea in abatement and should have been specially pleaded in the court below. We think the pleadings fairly raised this as well as the other questions before us on this appeal. One of the conditions of membership upon which the benefit certificate was issued provides “ that the said member complies in the future with the laws, rules and regulations now governing said lodge and fund, or that may hereafter be enacted by the Supreme Lodge to govern said lodge and fund.” The defendant society having given notice of special matter in addition to the plea of the general issue non assumpsit, was entitled to present evidence upon all matters set up or which were material and relevant to the issue. The laws, rules and regulations of the order having been offered in evidence, and being upon the record, it is competent for the court to pass upon all the questions raised under them. The by-laws provided a method by which the member could compel the lodge to reinstate him, and also a method by which the widow could enforce her claim to death benefits. The mode pointed out was not followed, and hence the present action cannot be maintained. The by-law in question does not deprive the beneficiary of her right to enforce her claim in a court of law, but provides that before any suit at law or in equity shall be instituted, the remedies provided by the society shall first be exhausted. Tbis is a reasonable regulation for the settlement of disputes arising in the society, and under the cases above cited is binding upon the members.

The reasons above stated being fatal to the claim of the appellant, it will not be necessary to discuss other questions raised by the specifications of error.

Judgment affirmed.


text:
    Nophsker v. Supreme Council of the Royal Arcanum, Appellant.

      Insurance — Life insurance — Application—False representations as to health —Evidence.

    In an action upon a policy of life insurance where the defendant sets up false representations by the insured as to his health, and there is evidence tending to show that the applicant was afflicted with a lingering and progressive disease at the time the application was made, it is proper to admit in connection therewith evidence of the continuance of the same disease afterwards, and until the death; and it is also proper to admit in evidence declarations made by the applicant prior to the date of the policy as to suffering from a disease, which he denied ever having had, when making his application for insurance.
    Argued April 16, 1906.
    Appeal, No. 305, Jan. T., 1905, by defendant, from judgment of C. P. Huntingdon Co., May T., 1905, No. 21, on verdict for plaintiff in case of Rosa Ann Nophsker v. Supreme Council of the Royal Arcanum.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit for death benefits. Before Woods, P. J.
    When Dr. R. Myers was on the stand the following offer was made:
    Mr. Waite: Now I propose to ask the witness whether the treatment he gave him (Jerome Samuel Nophsker) in the fall .of 1903 was for the same malady that he treated him for in 1901 ?
    Mr. Henderson: Counsel for plaintiff objects to the question for the reason that it proposes to ask the witness as to his attendance upon the deceased at a time long after the entering into of this contract and the issuing of the benefit certificate; that the evidence proposed to be asked for now is wholly incompetent and inadmissible and I request the court that the former statement made by the witness in answer to the question by defendant’s counsel be stricken out, it having been objected to and the statement having been made that he visited him later in 1903, which was months after the issuing of the certificate; that the defendants have not shown that he had any particular disease at the time of Dr. Myers’ attendance in 1901.
    The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for defendant. [1]
    Mr. Waite : We propose to prove by the witness on the' stand that Jerome S. Nophsker died of either sclerosis or locomotor ataxia. We propose to prove that fact by this witness. We propose to prove further the symptoms of the two diseases above named. This is to be followed by proof that these two diseases produce a peculiar condition of the muscles of the legs, which causes a peculiar gait of the person who is thus afflicted, and this evidence to be followed by the testimony of witnesses to the effect that Jerome S. Nophsker was afflicted in this manner long prior to the time when he took out the benefit certificate in this case. This to be followed by proof that the duration of the two named diseases is from five to six years, and to be followed by proof that the affliction from which JeromeS. Nophsker suffered at the time the physicians attended him was one of the symptoms of these two diseases.
    Mr. Henderson: Plaintiff’s counsel objects :
    1. That as to that part of the offer which proposes to ask the witness whether or not the pain which he found in Jerome S. Nophsker in 1901 when he cupped him was an evidence of either locomotor ataxia or sclerosis, it is inadmissible and has already been rejected by the court, the witness having testified that in 1901 when he cupped him he found the pain in the lumbar region that was speedily removed and that his diagnosis was that it was a temporary pain resulting from cold or grippe.
    2. It is objected as to that part of the offer in which it is proposed to show that the deceased died of one of the two diseases named, sclerosis or locomotor ataxia; that proof of the fact of death from either one or both of these diseases, if it could be shown, would not be evidence in this case to show the condition, or to show that such disease existed two years or more prior thereto, when Dr. Myers cupped the deceased ; and
    8. That the evidence of such facts being inadmissible the whole of the offer of the defendant is now incompetent, irrelevant and inadmissible.
    The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for defendant. [3]
    Dr. H. C. Chisolm on the stand.
    Mr. Langfit: Counsel for the defendant offers to prove by the witness that he attended the assured professionally in February, 1904; that during his examination of the assured, in questioning him about his former condition, the assured admitted and declared to the witness that he had been suffering from rheumatism ever since the winter and spring of 1903; that this rheumatism had attended him in his back and legs, causing him pain and suffering and stiffness; this for the purpose of showing that the assured at the time of his examination for membership in the defendant order concealed his true condition, and that when he answered that he never had any rheumatism his answer was untrue.
    June 27, 1906:
    Mr. Henderson: When did you say this statement was made, February, 1904 ?
    Mr. Langfit: Yes, sir.
    Mr. Henderson: Plaintiff’s counsel objects to the offer:
    1. For the reason that it is incompetent.'
    2. It being proposed to show a declaration made by the deceased after, and long after, he had secured his benefit certificate and made answer to the questions in the application, proof of such declaration is inadmissible.
    The Court: Objection sustained. Evidence rejected. Bill of exceptions sealed for defendant. [10]
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $2,146. Defendant appealed.

      Errors assigned amongst others were (1, 3,10) rulings on evidence, quoting the bill of exceptions; and (14) in giving binding instructions for plaintiff.

      II. H. Waite, with him J. A. Langfit and O. O. Brewster, for appellant.
    The questions asked the various witnesses and rejected by the court were material: March v. Life Ins. Co., 186 Pa. 629 ; Wall v. Royal Society of Good Fellows, 179 Pa. 355; Barnes v. Mut. Life Assn., 191 Pa. 618; Smith v. Life Ins. Co., 183 Pa. 504; Zinn v. Rice, 161 Mass. 571 (37 N. E. Repr. 747); Evans v. People, 12 Mich. 27 ; Holleran v. Life Assurance Co., 18 Pa. Superior Ct. 573; Baldi v. Life Ins. Co., 18 Pa. Superior Ct. 599; United Brethren Mut. Aid Society v. O’Hara, 120 Pa. 256; Mengel v. Ins. Co., 176 Pa. 280.

      W. M. Henderson, for appellee.
   Opinion by

Mr. Justice Potteb,

This was an action of assumpsit brought to recover the amount of a benefit certificate issued on April 23, 1903, by the Royal Arcanum to Jerome Samuel Nophsker, and insuring his life in favor of his wife, Rosa Ann Nophsker, in the sum of $2,000. The insured died July 10, 1904, and payment of the death benefit haying been refused, the beneficiary brought this suit. Defense was made upon the ground that the insured had made false answers to certain questions contained in his application, which answers he had warranted to be true. He had represented himself to be in good health; had said he had never since childhood been afflicted with dizziness, rheumatism or spinal complaint. Being asked when he was last attended by a physician he replied, he never was sick. The theory of the defense was that the insured died from sclerosis, or loco-motor ataxia, which are progressive diseases of a similar nature, and which, from their characteristic tendency to linger, must have run a course of three years or upwards. It was shown by Dr. Myers that in 1901, less than three years before his death, the insured had been treated for pain in the back and for vertigo, which it was claimed were symptoms of the diseases mentioned. It was also shown by the defendant that in 1903, after the benefit certificate was issued, the same physician attended the insured professionally. An offer was made to show that the treatment in 1903 was for the same malady as that in 1901. But the evidence was excluded. Of course, the object of this offer was to support thereby the inference that the disease was continuous between the dates mentioned, and that the insured was therefore subject to its grip at the time when he made the application for insurance. Under the principle of the decision of this court in Murphy v. Prudential Insurance Co., 205 Pa. 444, this evidence should have been admitted. Our Brother Mestbezat there pointed out that where there is evidence tending to show that the applicant was diseased before the policy was issued, it is proper to admit in connection therewith evidence of the continuance of the disease afterwards, and until the death. This for the purpose of testing the truth of the statements made in the application. If the export medical testimony shows that the disease was lingering and progressive in its nature, it becomes a question of fact for the jury to say whether or not under the evidence the insured had been attacked by the disease prior to the date of the policy, and whether or not he was correct in stating that he was at the time of the application in good health. In the Murphy case, just referred to, the insured died from consumption, a disease usually tedious and long drawn out. In the present case it was alleged that death was caused by sclerosis or loco-motor ataxia, both of which are, according to the medical testimony, lingering and progressive diseases.

Without taking up the assignments of error in detail, it is sufficient to say that they show that the trial judge excluded a number of offers of evidence on the part of the defendant which should have been admitted. For instance, there was an offer to show by the physician who examined the insured for admission to defendant’s society, and who also attended him in his last illness, that he died from sclerosis as a primary cause; that this was a progressive disease, continuing ordinarily from three to five years ; that he was not in good health when he applied for insurance, but was afflicted with a disease of the spinal cord tending to shorten his life, and which did shorten his life, so as to cause his death in about fifteen months thereafter ; that this disease produced a peculiar gait; this evidence to be followed by proof that in 1902 and 1908, prior to his application, the insured in walking exhibited the gait which was characteristic of the disease referred to. Evidence of this nature would tend strongly to support the allegation of the defendant that correct answers were not given to the questions in the application. In excluding this line of testimony the trial judge was probably controlled by the thought that evidence tending to show the condition of the insured after the certificate was issued, was immaterial. This would be true as to conditions of ill health arising after that time, or as to disease making its first attack subsequent to the date of the policy; but here the manifest purpose was to show that from the very nature of the disease, and its known ordinary course, it must have been present, at and before the date of the application. It was essential to connect the conditions existing afterward with those present before, and to show to the satisfaction of the jury that the insured was, at the time he applied for insurance, afflicted with the disease which clung to him, and finally caused his death. Viewed in the light of the final result, an added significance is given to the testimony concerning certain symptoms of disease alleged to have been shown before and at the time of the application. In this same connection, and as part of the same general purpose, the defendant offered to show frequent complaints as to suffering from rheumatism, and being crippled in the legs, made in the summer and fall of 1901 by insured to a third person, who was his friend. This was for the purpose of contradicting the statement made to the examining physician at the time of his application for membership, when he said that he had never had rheumatism. This offer was excluded, and counsel for appellee cites in support of this ruling certain New York cases. But these decisions were afterwards overruled and distinguished by the New York Court of Appeals in Swift v. Mass. Mut. Life Ins. Co., 63 N. Y. 186, where it was held, as summed up in the syllabus, that “ in an action upon a policy of life insurance issued upon the life of one person for the benefit of another, evidence of declarations made to third parties by the insured at a time prior to and not remote from that of his examination, and in connection with facts or acts exhibiting his then state of health (for instance, declarations made by him when apparently ill, as to the nature or cause of his illness), is competent upon the question as to the truthfulness of statements made by him to the examining physician as to his knowledge that he had, or had not, had a certain disease, or symptoms of it.” We think the principle thus stated in substance is sound, and under it this particular offer of evidence should also have been received. The case we think was clearly one for the jury. It does not follow that because certain offers of evidence were made the defendant will certainly be able to make good these offers when his witnesses take the stand. Their testimony may not come up to the offer, and their credibility will also be for the jury. The case falls, we think, within the principle discussed and established in Murphy v. Prudential Insurance Co., 205 Pa. 444, cited above. The assignments of error, with the exception of the fourteenth, are informal, in not specifying the errors except by inference, but we sustain the first, third, sixth, seventh, eighth, ninth, tenth, twelfth and fourteenth.

The judgment is reversed with a venire facias de novo.


text:
    Dorris v. Morrisdale Coal Company, Appellant.

      Equity — Contract—Reformation of written instrument — Evidence—Mining lease.

    When an attempt is made to reform a contract in a common-law action the trial judge perforins the functions of a chancellor, and if as a chancellor he would not reform a contract under the testimony offered, as a judge he should not permit a jury to do what he would not sanction in a proceeding in equity.
    Where two mining leases, for different but adjoining tracts of land, are executed at different times between the same parties, a condition of the strata in one tract, which under the terms of the lease would relieve the lessee from the payment of minimum royalties for that tract, cannot be set up as a defense against the payment of the minimum royalties for the other tract, in the absence of clear, precise and indubitable evidence that such was the intention of the parties when the second lease was executed.
    Where a lessor of coal executes to the same lessee a second lease for an adjoining tract, and both leases provide for a minimum royalty, unless a serious fault in the mine shall restrict operations, and the second lease refers to the sinking of a second shaft without designating where it shall be sunk, and the lessee sinks the shaft on the land covered by the first lease, encountering serious faults in the coal, he cannot relieve himself from the payment of the minimum royalty under the second lease, as to which the coal had not been touched.

      Evidence — Writings—Diary—Practice, C. P.

    The personal diary of a deceased plaintiff brought into court by subpoena at the instance of the defendant, will not be admitted in evidence where there is no averment that there is anything in the diary pertinent to the issue; nor can the trial judge be called upon to examine the diary to determine if there is anything pertinent to the issue, when no facts nor any circumstances are shown by affidavit or otherwise to warrant the presumption that it contains pertinent facts.
    Argued April 17, 1906.
    Appeal, No. 66, Jan. T., 1906, by defendant, from judgment of C. P. Clearfield Co., May T., 1904, No. 290, on verdict for plaintiff in case of Annie Dorris, Julia Dorris et al., Executors of William Dorris, v. Morrisdale Coal Company.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover royalties on a mining lease. Before Reed, P. J., specially presiding.
    At the trial it appeared that William Dorris in his lifetime owned the undivided four-tenths interest in about 2,666 acres of land in Clearfield county. On March 1,1898, he leased his interest in the “ B ” seam of coal under 1,000 acres of that land to his cotenants. The interest of the lessees (his cotenants) under this lease in 1895 became vested in the Morrisdale Coal Company. On September 1, 1898, William Dorris leased his interest in the “ B ” seam of coal under the remaining 1,666 acres to the Morrisdale Coal Company. Each of these leases contained a provision for the payment of a minimum royalty of $3,200 per year, that is to say, the Morrisdale Coal Company agreed to mine under each lease 100,000 tons of coal annually, “ unless a serious fault in the mine or other unusual or unforeseen occurrence or inability to obtain sufficient transportation, or the quality of the coal on the demised premises be of such a character as to justify a prudent operator in restricting the operation of the mine.”
    The lease of September 1,1898, contained a stipulation as to the sinking of a second shaft. No second shaft was sunk in the land covered by the second lease, and no coal was mined from this land. There was evidence that a second shaft was sunk, or an old one cleared out, on the 1,000-acre tract. The defendants attempted to excuse a nonpayment of royalties under the second lease by reason of serious faults in the strata of the coal covered by the first lease, and attempted to show that it was the intention of the parties that if there was a fault in the coal in the first tract it would relieve the lessee from payment of royalties under the second lease.
    The court refused to admit in evidence the diary of William Dorris, deceased. [22]
    The court charged in part as follows:
    [If the location of shaft No. 2, as made, was agreed upon between the parties, and if this is to be treated or considered as a part of the agreement of lease dated September 1,1898, then that lease is rendered somewhat ambiguous and difficult of interpretation. The defendant recognizes this, and alleges that the lease as written does not fully and clearly express the purpose and intent of the parties executing it, and has offered testimony to amend or reform it; but the testimony introduced for this purpose does not fully meet all the legal requirements necessary to amend or reform a written contract, and therefore I am constrained to say to you that the written lease of September 1, 1898, signed by the parties, contains the entire contract made between them, and is the only evidence of what that contract is, and its interpretation is for the court, unless the parties themselves have put upon it an interpretation upon which they acted.] [17]
    [If the defendant has established by evidence that is clear, precise and indubitable that as to the second lease the real contract between the parties is not fully and precisely expressed in the preliminary agreement of April 25, 1898, and the lease of September 1, 1898, as to the extent of the demised premises, in that the same extended to the entire property jointly owned by the parties, to wit: the two tracts containing 2,666 acres, and was not confined to the upper tract containing 1,666 acres as stated therein, and that the stipulation that it thus extended to the property as a whole was omitted from the said contracts by the accident or mistake of both parties, said contracts should be reformed, and if the jury so find from the evidence, then the rights of the parties are to be judged of from the contracts as they thus really existed between them.
    As already stated, I do not think the evidence is sufficient to amend or reform the written contract, and therefore this point is refused. The jury will recall what has been said in our general charge on the question of what interpretation the parties themselves placed upon said contract and how that affects it and the operations under it.] [19]
    [But if the shaft was located without his (Dorris’) knowledge or consent at the point "where it is located, and is not properly located to develop and take out the coal from under the 1,666 acres and is practically useless for that purpose, then the plaintiffs cannot be required to contribute the $8,000 or any other sum to its construction, and consequently no reduction on that account should be made from royalties accruing to the plaintiff under the lease of September 1, 1898.] [20]
    [What I have said about the production of coal in shaft No. 1 and the prosecution of the work at that shaft applies in every particular to shaft No. 2, providing you find under the evidence under the instructions already given that the parties agreed to this location and also interpreted the lease of September 1, 1898, as authorizing it at its present site, and the defendant in that event would be liable for minimum royalties from September 1,1898, to September 1, 1908, or be relieved from their payment on the same conditions that it would be liable for or relieved from their payment at shaft No. 1; and it is unnecessary for me to repeat what has just been said to you about the defendant’s liability for minimum royalties at shaft No. 1 and what would relieve it from the payment of such royalties. The only difference between the two leases in this respect is the dates.] [21]
    [If you find from the testimony that it was to be located on the leased premises as contended for by the plaintiffs, it appearing that no such location has been made, and it further appearing that no mining has been done by the defendant on the 1,666 acres, or that there was anything to prevent the mining of the coal, it would follow from the terms of the lease that the plaintiffs are entitled to recover the minimum royalty of $3,200 per year under that lease from September 1, 1898, to September 1, 1903, against which the defendant would be entitled to a credit for the payment of the Girard Trust Company mortgage of $6,000 and interest at five per cent as provided for in the lease, but would not be entitled to any credit for the $8,000 which the lessor agreed to contribute to the construction of shaft No. 2, since it was not located in accordance with the agreement of the parties.] [23]
    Verdict and judgment for plaintiff for $21,308.52.
    On motion for a new trial Reed, P. J., filed the following opinion:
    The defendant’s contention that shaft No. 2, in connection with the lease of September 1,1898, was to be located at the southwest corner of the tract covered by the lease of March 1, 1893, made it practically impossible to give effect to the most important feature of the first-mentioned lease so far as the lessor was concerned. The undisputed testimony showed that in the absence of faults and other difficulties that might be encountered in mining the coal, if there had been nothing but clean coal of workable height to drive through, the coal in the demised premises described in the lease of September 1, 1898, could not have been reached from shaft No. 2, located as contended for by the defendant, short of three years, and with the difficulties of mining the coal which actually existed, and which were manifestly known to the defendant at the time of executing the lease, it could not be reached in ten years. Yet the lease provides for the payment of a minimum royalty of $8,200 per year on coal to be mined from the demised premises through shaft No. 2. Recognizing that its location of shaft No. 2 postponed indefinitely the payment of royalty to the lessor, contrary to the express provisions of the lease, it was contended that the lease of September 1, 1898, was intended to be an enlargement of the lease of March 1,1893, so as to make it cover the entire tract of 2,666 acres, with two openings, from each of which a minimum royalty of $3,200 per year was to be paid, unless the mining of 100,000 tons of coal annually from each shaft was prevented by some serious fault, etc. In support of this contention an attempt was made to reform the written lease so as to effectuate what the defendant alleged was the intent of the parties in executing it. If we have a proper conception of the law with reference to altering, modifying or reforming a written instrument, this attempt on the part of the defendant failed utterly. If the testimony offered for this purpose demonstrated anything, it clearly demonstrated that there was neither fraud, accident nor mistake in the execution of the written lease, and furthermore, that the lease as written embodied precisely the contract as agreed upon between the parties. It may be that they entertained different views as to the interpretation that might be placed upon it, or of which it was susceptible. If they did, these views were not expressed, or made a part of the contract at the time of its execution by them. Hence, if any error was committed in submitting the case to the jury on the question of whether the lease was to be interpreted as written, it was committed in favor of the defendant. While counsel for the defendant, in reply to their inquiry, were told that the question of reforming the written lease would be withdrawn from the consideration of the jury, they were at the same time informed that the question of whether or not shaft No. 2, as located, was an agreed location would be submitted to the jury, and that question was fully argued by them, and, we think, fairly presented in the charge of the court to the jury for their determination. The court eonstrued the lease with reference to such location, and thus the defendant had the benefit of all that it contended for, and if there was any error in this it is one the defendant cannot complain about. The complaint that the court failed to call the attention of the jury to the distance and intervening difficulties between the shaft so located and the 1,666-acre tract, to mining the coal from said tract, is not well founded. If the lease of September 1, 1898, was an enlargement of the lease of March 1, 1893, as contended for by the defendant, then the defendant was liable for the payment of the minimum royalty from shaft No. 2 if the coal could be mined anywhere on the entire tract of 2,666 acres. This shows the vice in defendant’s second point and explains why that point was refused. The jury was fully instructed as to what would relieve from payment of the minimum royalty on coal to be taken out through shaft No. 2, and the distance of its location from the 1,666-acre tract was not an element to be considered. Neither can we assent to the contention that the lease of September 1,1898, provides for the location of shaft No. 2 on the demised premises which are stated to be the 1,666-acre tract, and that recognizing the right to locate it as actually located is reforming the written lease. Excluding all extraneous evidence, and having recourse to the writing alone, that is the interpretation the court would be disposed to put upon it. But it is to be observed that the lease does not in terms provide whether shaft No. 2 shall be sunk on or off the demised premises, and this leaves room for a construction of the lease by the parties that would permit of the location contended for by the defendant. In any event, it is immaterial whether the lease could be reformed by an interpretation of it by the parties, on which they acted, since the defendant had the benefit of such instruction to the jury, and it being entirely clear that the evidence was otherwise insufficient to reform it. In other words, if the court was right in withholding from the consideration of the jury the question of the reformation of the written lease because of a lack of evidence to warrant its submission to them, the defendant ought not to complain because it was given an opportunity through another channel to reach the same port.
    We are not convinced that there is error in our answer to the defendant’s fifth point for charge. The point was affirmed, omitting the words “and the coal mined without loss.” To have affirmed it with those words included would have been to insert in the contract of the parties causes for relieving against mining the coal not specified in the contract. The condition of the market might make the mining of the coal unprofitable, and other conditions not specified in the lease might arise which would prevent the coal being mined except at a loss to the defendant. If it was intended to say that the coal could not be mined without loss because of the obstacles designated in the lease, the words “ and the coal mined without loss ” should have been so limited. The point was complete without these words, and the defendant was not harmed by its affirmation with the said words omitted. The defendant’s eleventh point substitutes reasons other than those provided for in the lease for relieving against its failure to mine the minimum quantity of coal annually. The facts suggested in this point do not constitute an estoppel, nor are they sufficient in law to discharge a breach of the defendant’s contract in not taking out the stipulated quantity of coal each year. Neither do they justify the conclusion that Mr. Dorris was satisfied with the work of the defendant in carrying out the contract, or warrant the presumption that the defendant did its entire duty in respect to the amount of coal mined. For these reasons the point was refused, and our examination of the authorities cited on the argument of this motion has failed to convince us that there was error in its refusal. Neither can we assent to the contention that the burden was on the plaintiffs to show that the minimum quantity of coal could be mined annually. The authorities cited in support of this contention are made to turn on the stipulations of the litigated contract, and- are readily distinguishable from the case in hand. The defendant, in the lease under consideration, bound itself to take out of the demised premises at least 100,000 tons of coal annually, or pay royalty on that quantity whether taken out or not, “ unless a serious fault in the mine, or other unusual or unforeseen occurrence, or inability to obtain sufficient transportation, or the quality of the coal on demised premises be of such character as should justify a prudent operator in restricting the operation of the mine. No hindrance involving a stoppage of mining for less than thirty days to be considered as a factor in relieving the said party of the second part from the full performance of this covenant.” It is not alleged that there was not sufficient merchantable coal in the demised premises to meet the requirements of this covenant. Nor does the case involve any question of mining the coal advantageously or at a profit to the lessee. The covenant to take out at least 100,000 tons each year could only be discharged by showing a serious fault in the mine, etc., that prevented the lessee from taking out the stipulated quantity. Moreover, the relieving causes involve matters largely, if not exclusively, within the knowledge of the lessee, and therefore when interposed as a defense the burden was on it to prove the same.
    In the reasons assigned for a new trial it is alleged that the court erred in the admission and rejection of evidence. The only error in this respect commented upon by counsel was the refusal of the court to compel the production of the diary kept by William Dorris, deceased. It appeared that Miss Dorris, the executrix, had possession of this diary, and had it with her in court at the time defendant called for its production. If it be conceded that a diary is such book or writing the production of which will be compelled by the court, there were no grounds laid for its production in this case. There was nothing before the court to show that the diary in question contained anything pertinent and material to the defense. We are not aware of any statute, or rule of the common law, that authorizes a court to require the production of books and writings in the possession of the adverse party without proof that they contain evidence pertinent to the issue. If notice to produce a certain book or writing is not complied with, the remedy by the common law is to admit secondary evidence of its contents. This implies that the court is without authority to compel its production ; it also implies that the book or writing, the production of which is asked for, contains evidence material and relevant to the case. If production is claimed under the act of February 27, 1798, 8 Sm. L. 808, proof must be made that the book or writing contains evidence pertinent to the issue. The defendant failed to bring itself within any recognized legal rule authorizing the court to require the production of the diary called for, and furthermore, the application was properly refused on the ground that it was manifestly for the purpose of a fishing examination of the decedent’s diary to see if any evidence could be found in it to contradict his testimony in the case that he had no knowledge of the location of shaft No. 2, which fact was controverted by the defendant.
    Regarding the contention that the present location of shaft No. 2 was the location agreed upon between the parties, it must be conceded that there is considerable testimony to sustain it. But it is opposed by testimony equally strong and persuasive that it is not the place of the location of the shaft contemplated by Mr. t) orris for taking out the coal from the demised premises covered by the lease of September 1,1898. If the rights of the lessor under that lease are to receive any consideration whatsoever, then the lease must receive a construction either by itself or in connection with some other lease that will secure to the lessor the payment of the annual rental for which it provides. Considered by itself the location of shaft No. 2 at its present site would virtually nullify this provision in the lease, and before any rational mind would be willing to accept that location as being within the contemplation of the parties executing the lease, the testimony would have to be overwhelming to that effect. The defendant is laboring under a serious error in assuming that there is no testimony save that of Mr. Dorris himself opposed to its contention that shaft No. 2 is located at the place agreed upon between them. The lease of September 1, 1898, in all its essential provisions, is so antagonistic to such location that the plaintiffs might stand on it alone as an answer to all of tire defendant’s testimony to the contrary. But it is alleged by the defendant that the lease of September 1, 1898, was intended to be an enlargement of the lease of March 1,1898, and that the two leases are to be construed together as constituting one lease covering the entire tract of 2,666 acres. But even here the defendant is inconsistent, because it contends that taking the two leases together, it is not liable for the minimum royalty from shaft No. 2, as located by it, until the coal can be reached through it and mined from the premises described by the lease of September 1, 1898. (See defendant’s second point for charge.) And this position was insisted upon in the argument of this motion for a new trial. As already stated, it is scarcely conceivable that the parties in executing the lease of September 1, 1898, intended to make shaft No. 2, as located, the opening for taking out the coal from the demised premises, and if they intended that lease merely as an enlargement of the lease of March 1, 1893, it is likewise inconceivable that intelligent business men and eminent lawyers, after mature deliberation in reaching the terms of the contract and careful examination to see that the lease contained them and clearly expressed the intent of the parties to it, should have made such a bungling job of it. However this may be, the defendant had a full and fair opportunity of proving before the jury its contention that shaft No. 2 was sunk at the place agreed upon, and we think the facts and circumstances in evidence to the contrary warranted the finding of the jury against such location. The defendant’s third reason for a new trial is that the jury did not consider this question, but this assignment was abandoned and need not be further considered.
    The jury, under instructions from the court, returned an itemized verdict, and this enables us to correct an error which we believe was committed in submitting to the jury the question of an additional royalty claimed by the plaintiffs on the coal mined from the “ D ” or Moshannon seam of coal. In our judgment the evidence did not warrant the submission of that question to the jury, and the defendant’s sixth point should have been affirmed. Mr. Dorris, beyond question, knowingly accepted royalty at the rate of three and one-fifth cents per ton to him on all the coal mined from this seam, and with full knowledge of the quantity being mined assented to this rate, and he thereby estopped himself from claiming a higher rate than that for which he settled. This item of the plaintiff’s claim as shown by the verdict amounts to $2,757.76, and by striking it out of the verdict we shall accomplish what should have been accomplished by an instruction to the jury to reject or disregard this item of the plaintiffs’ claim in reaching their verdict. This reduces the verdict -121,308.52, for which amount, when paid, the defendant is entitled to reimbursement out of the royalties accruing on coal mined from the demised premises in excess of the stipulated minimum quantities to be mined each year.
    And now, February 2, 1906, the rule heretofore granted is discharged and the motion for a new trial refused, and thereupon it is ordered, in accordance with the foregoing opinion, that judgment be entered on the verdict for the plaintiffs and against the defendant for the sum of #21,308.52, with interest from September 28,1905, and costs of suit upon payment of the jury fee.
    June 27, 1906:

      Mrrors assigned were (17, 19, 20, 21, 23) above instructions, quoting them ; (22) ruling on evidence, quoting the bill of exceptions.

      Leoni Melich, of Melick, Potter Dechert, and John G. Johnson, with them Gordon §• Boulton, for appellant.
    It was the duty of the court to have required the production of the books, to have examined them, and, if found to contain entries relevant to the issue, admitted them in evidence on motion of the defendant: Boynton v. Boynton, 16 Abb. Pr. 87; Powers v. Russell, 26 Mich. 179; Union Paper Collar Co. v. Metropolitan Collar Co., 3 Daly (N. Y.), 171; Ahlmeyer v. Healy, 14 Daly, 288 ; Lefferts v. Brampton, 24 How. Pr. 257.

      David L. Krebs and Thomas II. Murray, with them A. M. Liveright, Jas. P. O'Laughlin and Hazard Alex. Murray, for appellees.
   Opinion by

Mr. Justice Elkin,

In the view we take of this case it will not be necessary to consider in detail the many questions raised by the numerous assignments of error. We cannot accept as sound the contention of learned counsel for appellant that there was such clear, precise and indubitable evidence produced at the trial as to warrant a submission of the question of the reformation of the contract to the jury on the ground of fraud, accident or mistake. The presumption always is that a written instrument expresses the true intent of the parties who executed it, and when an attempt is made to vary the terms, set aside, or reform a contract solemnly entered into a heavy burden rests upon the party seeking the reformation. When an attempt is made to reform a contract in a common-law action the trial judge performs the functions of a chancellor, and if as a chancellor he would not reform a contract under the testimony offered, as a judge he should not permit a jury to do what he would not sanction in a proceeding in equity. These general rules are supported by ample authority: 24 Am. & Eng. Ency. of Law (2d ed.), 650; Stine v. Sherk, 1 W. & S. 195; Rowand v. Finney, 96 Pa. 192; Phillips v. Meily, 106 Pa. 536; Boyertown National Bank v. Hartman, 147 Pa. 558. In the case at bar the facts relied on by appellant are not sufficient to justify a chancellor in decreeing a reformation of the contract, and it necessarily follows that the learned court below committed no error in refusing to submit this question to the jury.

The lease of September 1, 1898, was executed between intelligent parties after several months of negotiations during which time all matters pertaining thereto were carefully considered, The conclusion is irresistible that the lease as executed is not only an expression of the intention of the parties, butis the definitely understood agreement entered into between them. If the lessor in the second lease had been an outside party, not interested in the first lease, it could not be successfully contended, in the absence of an express covenant to that effect, that a fault in the mine, or an unusual or unforeseen occurrence, or the quality of the coal in an adjoining property eould be set up to defeat a claim for the minimum royalty to be paid under the terms of the lease of the demised premises. Under the covenants of the second lease the lessee was bound to mine and take away from the 1,666-acre tract sufficient coal to produce a minimum royalty to the lessor of $3,200 per annum. This was a definite, absolute undertaking and could only be excused upon the conditions set out in the lease itself. Faults in the mine and other conditions relied on to excuse the payment of royalties in the second lease relate to the strata and the mining of coal underlying the therein described premises and have no reference to conditions which may have been found to exist on the adjoining property demised under the first lease. In these respects each lease must stand upon its own terms, the second is not dependent upon the first, nor is the first modified by the second. It is perfectly clear that it was the intention of the parties to the second lease to increase the output of coal on the one hand and to insure a larger amount of royalty on the other. The lessor desired to make his undeveloped lands productive; the lessee wanted to secure a larger tonnage of coal. The first lease executed in 1893 provided for the payment of royalty on at least 100,000 tons annually. It covered an area of 1,000 acres of land. The lessee acting with business prudence and foresight desired to control the output of the whole tract. With this end in view negotiations were opened between the parties which resulted in the execution of the second lease. It would do violence to the intelligence and integrity of the parties concerned to hold that after the second lease had been deliberately made and solemnly entered into the lessor would have no greater returns in royalty than he already enjoyed under the terms of the first lease, and yet this would be the practical result if the contention of appellant should prevail. One party to the contract was an eminent lawyer acting for himself and in his own interest, the other parties were reputable, prudent and capable business men. They were familiar with the property and understood the nature and character of the business about which they were contracting. They made their own covenants and are bound by them, one of which provides for the payment of a minimum royalty each year. A careful consideration of the able and exhaustive argument of learned counsel for appellant has failed to convince us that any facts were established at the trial that would excuse the payment of the minimum royalty provided to be paid in the second lease.

It may be conceded that there was some misunderstanding between the parties as to the location of shaft No. 2. In our opinion, the location of this shaft has nothing to do with the amount of coal to be mined or the minimum royalty to be paid under the covenants of said lease. Without regard to the location of this shaft, whether on the 1,666-acre tract or on the 1,000-acre tract, the minimum royalty must be paid according to the terms of the lease. If shaft No. 2 had been located within the boundaries of the 1,666-acre tract, the lessee would then be in position to set up faults in the mine, quality of the coal and other conditions relied on to excuse the payment of royalties, but inasmuch as the coal under this tract has not been touched, these questions cannot now be raised to defeat the claim for royalty due under the terms of the second lease. On the other hand, since the lessee thought proper to sink shaft No. 2 on the 1,000-acre tract and deemed this the better way of developing the property, conditions relating to that tract cannot be set up to defeat the claim for royalty due under the later lease. In these respects each lease is dependent upon and governed by conditions relating to the coal or the mining of the same within the boundaries described in the respective leases. The recent case of Troxell v. Anderson Coal Mining Company, 213 Pa. 475, applies with convincing force to the facts of the case at bar when as hereinbefore stated the first and second leases are treated as separate independent contracts.

The question as to the contribution of $8,000 to be made by the lessor toward the sinking of shaft No. 2 was properly submitted to the jury. It was a disputed question of fact and we do not see that any reversible error was committed by the learned trial judge in its submission. The twenty-second assignment seeks to convict the trial judge of error in refusing to compel the production of the private diaries of William Dorris, deceased, in the possession of an executrix, who was served with a duces tecum subpoena to produce them at the trial. We do not doubt that a diary may become an evidentiary writing, the production of which will be compelled in the trial of a cause under some circumstances and for proper purposes. It should be observed, however, that a diary is in the highest sense a personal and private record, not usually intended for public inspection, and when it is sought to invade this privacy by compelling the production of such a writing in evidence it is the duty of the trial judge to see that it is not done for the purpose of enabling one party to make undue inquisition into the private affairs of another; and the party making the offer must satisfy the court that it contains facts material or relevant to the issue. It has been held that an inspection of books and papers will be granted if facts and circumstances are shown which will warrant a presumption that the book or document sought contains evidence of the fact which the party applying has to establish: Lefferts v. Brampton, 24 How. Pr. 257. We do not question this rule, but it does not aid appellant in the case at bar, because no facts or circumstances were shown to warrant the presumption that the diary of William Dorris, deceased, contained any evidence of the facts sought to be established. Nor do we think it was the duty of the court, as contended by appellant, to require the production of the diaries, to have examined them, and, if found to contain entries relevant to the issue, to then admit them in evidence. This would have been a judicial fishing excursion which the court was not required to indulge, as a mere matter of discovery for the benefit of the party applying, without such party having first shown that the diaries contained facts pertinent to the issue involved.

In this connection it must not be overlooked that there was no definite allegation that the diaries contained evidence of the facts sought to be established, or that appellant had any knowledge of the contents of the diaries, nor were any facts or circumstances shown to the court by affidavit or otherwise that the diaries contained facts pertinent to the issue; and hence the cases cited from other jurisdictions and relied on by appellant are not applicable to the facts of the present ease. The learned court below in his opinion refusing a new trial clearly shows that appellant company did not bring itself within any rule which would require the production of the diaries. For these reasons no reversible error was committed in refusing to compel their production.

Assignments of error overruled and judgment affirmed.