author: Mb. Justice Dean,

text:
    First National Bank of Woodstown v. Trainer, Appellant.

      Attachment execution—Execution—Stock—Affidavit—Act of June 16, 1836, sec. 32, P. L. 755—Waiver of irregularity.

    After a plea of nulla bona in an attachment execution, the regularity of the process cannot be questioned; the plea is a waiver of such irregularity.
    Corporation stock, being a part of a block of stock standing in the name of a decedent, and bequeathed by him to a person for life and at her death to a nephew who was also executor, contingent upon the latter’s survival of the life tenant, cannot be attached during the life of the life tenant, by summoning the executor as garnishee in an ordinary writ of attachment execution for a personal debt of his own, without the precedent affidavit and recognizance prescribed by the 32d section of the act of June 16, 1836; but if the executor and garnishee does not move to quash the writ of attachment, but pleads nulla bona and goes to trial, he cannot after verdict and judgment against him treat the attachment as a nullity. In such a case he will be presumed to have waived the irregularity.
    Argued Feb. 8, 1904.
    Appeal, No. 129, Jan. T., 1903, by defendant, from judgment of C. P. Del. Co., June T., 1898, No. 71, on verdict, for plaintiff in case of First National Bank of Woodstown v. J. Newlin Trainer, defendant, and J. Newlin Trainer, executor of Isaac Eyre, deceased, and the Delaware County National Bank, garnishees.
    Before Mitchell, C. J., Dean, Fell, Mesteezat and Thompson, JJ.
    Affirmed.
    Attachment execution against the stock of a corporation. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in entering judgment for plaintiff on point of law reserved.

      W. B. Broomall. for appellant.
    The writ was good to reach the money which was found to be in the hands of the garnishee. The garnishee could do nothing but plead nulla bona : Lorenz v. Orlady, 87 Pa. 226; Steel v. Goodwin, 113 Pa. 288.
    Wherever the defendant in the judgment is not the absolute owner of the stock, a writ of attachment execution as to such stock is void: Eby v. Guest, 94 Pa. 160.

      George B. Lindsay, for appellee.
    Money coming into the hands of a garnishee after the service of an attachment execution and before it is dissolved, is bound thereby: Mahon v. Kunkle, 50 Pa. 216; Sheetz v. Hobensack, 20 Pa. 412; Poor v. Colburn, 57 Pa. 415.
    The plea of the garnishee in this case was “ nulla bona,” and the only question raised by that plea is whether there is any money, stock, chattels or property in the hands of the garnishee belonging to the defendant. That this is the only question raised by the plea of “ nulla bona ” has been decided by this court in Poor v. Colburn, 57 Pa. 415 : Allen v. Erie City Bank, 57 Pa. 129.
    By filing the plea of “ nulla bona ” the garnishee waived the question of the irregularity of the attachment, and is now es-topped from setting it up.
    June 15, 1904:
   Opinion by

Mb. Justice Dean,

The question involved in this issue as stated by appellant is:

“ Can corporation stock, being part of a block of stock standing in the name of a decedent and bequeathed by him to a person for life, and at her death to a defendant in a judgment contingent upon his survival of the life beneficiary, be attached during the interest of the life beneficiary and prior to distribution by summoning the executor as garnishee in an ordinary, writ of attachment execution and without the precedent affidavit and recognizance prescribed by the 32d section of the Act of June 16, 1836, P. L. 755.”

Isaac Eyre deceased, among other personal property, owned thirty shares of the stock of the Delaware County National Bank, which shares he bequeathed to his executor J. Newlin Trainer in trust, “ to collect the income and dividends from said stocks and to pay said income and dividends to my sister, Sarah Shanklin, for and during the term of her natural life, and at the decease of .my said sister, I give and bequeath the said Delaware County National Bank stock to my three nephews, J. Newlin Trainer, William E. Trainer and Edward E. Trainer, absolutely, share and share alike, and in casé of the death of any of my said nephews before my said sister, I give and bequeath the said nephew’s share of said stock to his children then living share and share alike.”

While Sarah Shanklin was living, and the stock still stood in the name of Isaac Eyre deceased, this plaintiff, the first National Bank of Woodstown issued an attachment execution on a judgment against J. Newlin Trainer and levied it on his share of the thirty shares of stock and summoned him as executor and garnishee. Sarah Shanklin, the life beneficiary, died January 2, 1902, and on July 25, 1902, the executor and garnishee filed plea of “ nulla bona.” On the trial of the issue, under the instructions ánd decision of the court, the plaintiff obtained judgment against J. Newlin Trainer, executor and garnishee, for the ten shares of stock which went to him under the will. From this judgment J. Newlin Trainer executor and garnishee appeals.

The complaint of appellant in substance is, that under the undisputed ■ facts and the law there was not in the hands of J. Newlin Trainer, executor and garnishee, the ten shares of stock represented in the return as levied on by the attachment execution. The statute under which the writ was issued is the 10th section of the Act of April 13, 1843, P. L. 233, which provides that “ All legacies, etc., which are subject to foreign attachment,” etc., shall be subject to attachment in satisfaction of judgments in the same manner as debts are made subject to execution by the 22d section of the act of June 16, 1836, and that section provides that: “ The stock owned by any defendant in any body corporate, also deposits of money in, any bank or with any person or body corporate or politic belonging to him and debts due to him shall be liable to execution like other goods or chattels, subject nevertheless to all lawful claims thereupon of such body corporate or person.” Then in the 32d, 33d and 34th sections of the same act it is provided that where the stock is in another name than that of the defendant in the judgment, no writ of attachment shall issue for its seizure without being preceded by an affidavit and recognizance. No affidavit and recognizance were filed before this attachment issued; the stock did not stand in the name of J. Newlin Trainer, defendant, or in his name as executor, but in that of Isaac Eyre, the original owner. Therefore it stood in the name of another than defendant and to constitute a lawful seizure the attachment should have been preceded by an affidavit and recognizance.

If nothing else appeared in the ease, we thinlc the effect to be given to appellants’ counsel’s interpretation of the statute is sound and would rule the case. The argument of counsel for appellee tends more to prove that in this instance the requirements of the act are unreasonable, than that they do not mean exactly what they say. They are too explicit in their terms for us to get clear of them by a strained interpretation although the effect in this cáse might defeat a just claim by a mere irregularity.

But must not defendant be held here to have waived the irregularity ? If he had moved to quash the writ of attachment or to have set it aside when first served, that motion would doubtless have prevailed; but he made no such motion, he pleaded nulla bona and went to trial. Now, after verdict and judgment against him he asks us, because of a mere irregularity, to treat the attachment as a nullity; it is too late. This is the gist of the decision in Poor et al. v. Colburn et al., 57 Pa. 415, which holds that “ after a plea of nulla bona, in an attachment execution, the regularity of the process cannot be questioned ; the plea is a waiver of such irregularity.”

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


source: Caselaw Access Project

author: Mr. Justice Dean,

license: Public Domain

text:
    Duffy’s Estate.

      Wills—Life estate—Coal lease—Jurisdiction of orphans’ court—Executors and administrators.

    Testator owning a one half interest in coal which he and his cotenant had leased on a royalty, devised to his wife “ during her life the use of all my interest, which interest is the undivided one-half in the coal,” underlying the tract devised, with remainder to his nephew, who was also his executor. Held, (1) that the widow was entitled to the full enjoyment for life of the use of all testator’s interest in the coal ; (2) that the period of her enjoyment commenced immediately at her husband’s death ; (3) that the widow was entitled to collect the royalties herself without the intervention of the executor, there being no debts; (4) that the orphans’ court had no jurisdiction to pass upon the account of the executor made up of royalties which he had wrongfully collected, and in which accountant had taken credit for various expenses and commissions.
    Argued April 11, 1904.
    Appeal, No. 161, Jan. T., 1903, by-James L. Lenahan, executor, from decree of O. C. Luzerne Co., No. 45 of 1898, disallowing charges and credits in executor’s account in estate of Lawrence A. Duffy, deceased.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were the following extracts from the opinion of Yosbhrg, P. J.:
    (1) “ I can see no material difference between these coal royalties and rents, so far as the right of the executor to receive and account for them is concerned.”
    (2) “ I hold that the coal royalties were improperly included as a debt in the account of the executor, and that the orphans’ court has no jurisdiction to pass upon this item.”
    (3) “ That the item of money advanced to Mrs. Duffy be disallowed.”
    (4) “ That the fund with which the executor charges himself and the item of money advanced to Mrs. Duffy be and the same are eliminated from his account and stricken therefrom.”

      John T. Lenahan, with him Edward A. Lynch, for appellant.
    The orphans’ court having jurisdiction over the estates of decedents, it follows the funds of the estate because of its large equity powers ; it need not call in the aid of a court of law : Tyson v. Rittenhouse, 186 Pa. 137 ; Yocum v. Commercial Nat. Bank, 195 Pa. 411; Caldwell v. Fulton, 31 Pa. 475 ; Sanderson v. Scranton, 105 Pa. 469 ; Gardner’s Estate, 199 Pa. 524; Bender v. Luckenbach, 162 Pa. 18.

      William S. McLean, for appellee.
    That the coal rents in question belonged to the widow of Lawrence Duffy and that the widow had the right to receive and receipt for the same from the lessees is res' adjudicata: Duffy’s Estate, 17 Pa. Superior Ct. 244.

      The eoal rents belong as absolutely to the widow, as rentals of real estate, accruing after the death of the owner, belong to his heir or devisee. Rent collected by the executor, and accruing after testator’s death, is not a proper item of charge in his account, because he has no legal right to collect the rent. It belongs to the heir or devisee and is not an asset of the estate : Haslage v. Krugh, 25 Pa. 97 ; Bakes v. Reese, 150 Pa. 44.
    Gardner’s Estate, 199 Pa. 524, is not in point, because the debts of the decedent were not paid and the royalties were personal property and of course assets for the payment of debts.
    June 15, 1904:
   Opinion by

Mr. Justice Dean,

On January 7, 1898, Lawrence Duffy of Luzerne county died; at his death he was the owner of the undivided half interest in a tract of coal land in Plymouth township in said county. In his lifetime he and his co-owner Patrick Lenahan by an agreement dated June 1, 1895, had leased the coal under the land at a price of 35 cents per ton payable monthly not less than a fixed quantity to be mined annually or contract forfeited. The purchasers went into possession and mined coal up to the date of the lessor’s death and afterwards. On December 7,1893, about four years before his death he had made his will in which he had devised to his wife, Winifred “ during her life the use of all my interest which interest is the undivided one half in the coal ” underlying the tract, with the remainder to his nephew James L. Lenahan, this executor. It follows, that this devise of the land to the wife carried with it the testator’s rights under the lease during the wife’s life ; it was a devise to her of the land for life and by his death subsequent to the contract, it passed to her the -monthly payments on the land as directly as if the devise had been a farm out of which the owner received an annual rental during his lifetime. The devise is, “ the use of all my interest, which interest is an undivided one half in the coal and other minerals underlying and contained ” in the described land. So that it is immaterial whether we call the contract a lease, or a sale of the coal in place, or a contract passing a right to the coal, the price to be measured by a minimum monthly royalty or rent; it clearly put in the widow the full enjoyment for life of the use of all his interest in the coal, and the period of her enjoyment commenced immediately at her husband’s death. True, it was subject to any debts existing at his death and costs of administration of his estate as in Gardner’s Estate, 199 Pa. 524. But here, if the land was not subject to debts or other legal charges, which it was the lawful duty of the executor to pay, he had no authority to meddle with an estate specifically devised to the widow for her use as land. Any coal royalty or rents which were payable to the testator in his lifetime, necessarily went to the executor and he had a right to collect them, for the widow’s life estate only commenced with her husband’s death. But the words of the devise import a different estate in the land than the ordinary title or right; it in effect, points out the manner of its enjoyment. She is to have the use of the coal underlying the land; she could have no other use of it except to mine or sell it. She was, therefore, free from any impeachment of waste by the remainderman.

The very foundation of all the contention on this appeal is the first partial account filed by the executor. The docket entry notes that this account was filed on April 7, 1899 ; it is then indexed as being printed on pages 13 and 14. It is not there printed, but on page 8 what purports to be a first partial account is printed. In that the executor charges himself with having received $2,275; he does not mention from what source but that as appears from the testimony was coal royalty; he then claims credit with having paid out $2,240.75, leaving a balance for distribution to widow of $34.25. This account was audited and report of audit confirmed. Then on December 14, 1899, on petition of widow a rule was taken on the executor to show why he should not assign her the coal lease, for the reason that the executor had filed his account showing a balance due the petitioner which had been paid to her, and that there was no other property of the estate of her husband except the coal lease; that demand had been made upon the executor to assign to her the lease and he has refused. To this petition the executor made answer, denying her right to an assignment and alleging that as to the royalties or rents from the coal lease he was executor and an active trustee under the will; that it was his duty as an active trustee and remainderman to collect the royalties. After hearing the court dismissed the petition, from which decree the widow appealed to the Superior Court. The court decided, see Duffy’s Estate, 17 Pa. Superior Ct. 244, against the contention of the executor, and further that he was not a trustee for her, that there was no fund for him to conserve or duties for him to perform, and that the payments of royalties could be made directly to the widow without, assignment of the lease.

On J une 13, 1901, a remittitur of this decision of the Superior Court was filed in the court below, and on the next day, June 14, the executor filed what purports to be his final account in the orphans’ court. In that account he charges himself with money received since his last account in years 1899, 1900 and 1901—$4,725. He claims credit for $1,925, advanced to widow by executor, also for counsel fees paid to Edward A. Lynch, Esq., $500, and to John T. Lenahan, Esq., $200; also charges for commissions, $47.25. He then claims credit for some small charges, officers’ costs, etc, amounting to $77.25, making in the whole $2,702.75, which deducted from the debit left a balance in his hands of $2,022.25.

To this account exceptions were filed by the widow: First. To the jurisdiction of the orphans’ court to pass on the executor’s account embracing receipts of coal royalties. The second, fourth, fifth, sixth and seventh exceptions deny his right to officers’ and clerks’ fees, his charge for commissions and aver that he should have charged himself with interest on $2,800 which had remained in his hands for more than eight months. The third exception denies his right to a credit of $700, for counsel fees, not only because of want of jurisdiction in the court to allow it but also because it is exorbitant. The eighth and last exception denies the executor’s authority to include in his account the entire sum received because it had been collected from coal royalties, after he had filed his first account on February 7,1899, after he had been notified by her that he had no right to receive such royalties, and after appeal had been lodged in Superior Court to test the question in dispute. The auditing Judge Troutman overruled all the exceptions except the third, on which last he deferred decree at request of counsel for widow that evidence might be taken to support it.

Substantially the same exceptions as those to the account were filed to the report of the auditing judge. These were heard before Judge Vosbttbg of the 45th district specially presiding. Before final decree the third exception denying the right of the executor to credit for counsel fees was withdrawn by counsel for the widow. The court overruled all the exceptions to officer’s charges and compensation by the executor. This left only in dispute the debit of $4,725, and the credit claimed as advance to widow $1,925; as to these items while he affirmed generally the jurisdiction of the orphans’ court over the accounts of the executor, yet as to these items he says: “ There may be a jurisdiction as to the forum within which an account of an executor should be settled, and yet there may be items in such account which cannot legally be Settled, in the orphans’ court.” Under the Act of the 16th of June, 1836, P. L. 784, among the powers expressly conferred upon the several orphans’ courts in the state of Pennsylvania, is “ The removal and discharge of executors and administrators deriving their authority from the register of the respective county, and the settlement of their accounts.”

That the orphans’ court has jurisdiction over the settlement of accounts by executors and administrators is unquestionable; but then comes the very question raised by the widow’s first exception, what constitutes an account of an executor as executor? Surely not what he chooses to make an account; it. must be of some matter as to which either the will itself or the law has imposed upon him as a duty. We look in vain through this will for an intention either express or implied on the part of this testator that the executor should have anything to do with these coal royalties, while the intention is plain that she should at once upon his death enter into the enjoyment of her royalties and execute his will in regard thereto. In fact any execution of the lease is fully provided for by its terms in all particulars ; the legal party to move in such execution in case of his death is the widow as specifically directed by him by the explicit devise. This is what we decide, and in effect what the Superior Court decided. But the learned judge of the orphans’ court only goes so far as to hold that under the decision of the Superior Court the orphans’ court has jurisdiction to pass upon the accounts as to all the items except the two. The widow has taken no appeal so we are confined solely to the appeal of the executor who complains in his assignments of error of that part of the decree wherein the court below directs “ that the fund with which the executor charges himself and the item of money advanced to Mrs. Duffy be and the same are eliminated from his account and stricken therefrom.”

We think the appellánt, this executor and remainderman, througii all this persistent litigation with his uncle’s widow has fared much better at the end in the court below than he would have fared here had we the same questions to pass upon. By the will the use of the coal during her life was specifically and explicitly given to the widow; as it is undisputed that the testator had no debts, what right had the executor to collect her money which she could as easily have collected herself, and why burden the fund with costs, charges for services and commissions to himself ? It seems to us, that this was a question which should first have occurred to a prudent man before he meddled with that which was none of his business. But he did collect as shown by his first account $2,275 of her coal royalties, from which he deducted $68.25 commissions, $50.00 counsel fees and $22.50 costs. 1 To which she submitted; but then, doubtless, seeing how large a portion of her small estate was being eaten up by expenses and charges, she concluded to collect her own coal royalties and demanded from the executor an assignment of the contract. He refused. Then on her petition to the court setting forth clearly the justice and lawfulness of her claim the court dismissed her petition ; she appealed to the Superior Court; that court pronounced her right clear but that no formal assignment of the contract was necessary, that she might collect the royalties directly from the coal operator. Then the next day after this decision was filed in the court below, he filed his second account showing that while she was disputing his right and while her appeal was pending in the Superior Court he had gone on and collected of her royalties $4,725 more and deducted from this $700 attorney fees and $77.00 commissions and costs. For some reason best known to herself, she withdraws her objection to the attorney fees and the court overrules her other exceptions, leaving only for review on this appeal before us the question of the jurisdiction of the orphans’ court.

We think the Superior Court was clearly right in holding that the orphans’ court had no jurisdiction over the accounts of this executor, so far as they were made up of money from the coal royalties and so far as we can detect they were made up of nothing else. It made a mistake in not clearly saying so. Because the remainderman was executor of his uncle that fact gave the orphans’ court no jurisdiction to pass on an account where he, in effect, admits that there wrongfully came into his hands money belonging to his uncle’s widow. That court could not have compelled him by citation to account for such money, because it would have had no jurisdiction over either his person or the chattel. The only effect of the imperfect decree is, that he gets away from, a jury in a court which has jurisdiction into one which has none.

The learned judge of the orphans’ court, taking the meagreness of the decree in the Superior Court as the law settling the jurisdiction says : “I hold that the coal royalties were improperly included as a debit in the account of the executor and that the orphans’ court has no jurisdiction to pass upon this item. Taking the items of credit (naming the counsel fees and other charges) we have a different proposition before us.” The logic of this reasoning is not apparent, when we take the undisputed facts, that every one of the items of credit is claimed by the executor for efforts, professional and otherwise, to wrongfully get hold of and retain this widow’s royalties and that he got no other nor tried to get other property. The proposition is something like this : an executor wrongfully gets into his hands a large amount of money belonging to another; the orphans’ court has no jurisdiction to pass on his accounts of such money yet has jurisdiction to allow him to deduct a large sum for his trouble in getting it. The strongest reason given in any of the opinions for sustaining the decree as to the jurisdiction is that given by Judge Troutman as follows: “ Nor is the exceptant at all injured by our retaining jurisdiction; all her rights are conserved and all her claim can be disposed of in the orphans’ court as completely and as well as in any other forum to which she might obtain resort.” The trouble, however, with this reason is, that it is not the law, and probably would be as much in point, if this executor had filed his accounts in the courts of oyer and terminer or quarter sessions.

We think it clear that the orphans’ court had no jurisdiction whatever of these coal royalties, but as before noticed the widow has voluntarily, except as to these two items submitted to that jurisdiction. The executor brings this wholly groundless appeal; it is dismissed and the decree of the court below affirmed.


author: Mr. Justice Brown,

text:
    Ubelmann v. American Ice Company, Appellant.

      Negligence—Municipal ordinances—Elevators.

    Proof of the violation of an ordinance regulating or relating to conduct alleged to have been negligent is not in itself conclusive proof of the negligence charged. The ordinance and its violation are matters of evidence, to be considered with all other evidence in the case. But this rule is limited to cases in which the ordinance relates to the alleged negligent act under investigation.
    Ordinances and their violation are admissible, not as substantive and sufficient proof of the negligence of the defendant, but as evidence of municipal expression of opinion, on a matter as to which the municipal authorities had acted, that the defendant was negligent and are to be taken into consideration with all the other facts in the case.
    In an action to recover damages for personal injuries sustained by an alleged defect in an elevator, the specific act of negligence charged in the statement of claim was that the fall of the elevator was due to the breaking of a brake or shifter, which was alleged to be out of order. The court admitted under objection and exception a city ordinance which made it the duty of the owner or operator of an elevator after its inspection, to procure from the inspector a certificate that it is in condition to be operated, and to expose the certificate to public view as near as possible to the elevator car. The court also admitted another ordinance which provided that whenever any elevator should be in need of repairs in respect to its operation, or necessitating its temporary disuse, or any accident should occur affecting life or limb, notice should be given to the proper authorities, and the elevator should not again be put in use until inspected and approved by the inspector. There was no testimony, however, that, before the day on which the plaintiff was injured, there was any duty on the defendant company to notify the chief of the bureau of building inspection of the impairment or disuse of the elevator, due to the defective shifting rod, or of any accident occurring in it that required the suspension of its operation until an inspection was made and its condition had been approved by the inspector. Held, that the ordinances had no relation to the specific act of negligence charged, that their admission tended to confuse and mislead the jury, and that a verdict and judgment for plaintiff should be reversed.
    Argued Jan. 19, 1904.
    Appeal, No. 186, Jan. T., 1903, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1902, No. 2888, on verdict for plaintiff in case of Charles W. Ubelmann v. American Ice Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $9,375, upon which judgment was entered for $6,000, all above that sum having been remitted.

      Errors assigned among others were (1, 2) admission in evidence of the city ordinances of April 6, 1900, and April 10, 1894.

      William W. Porter and Edwin Jaquett Sellers, for appellant.
    By plaintiff’s statement of claim it appears that the sole act of negligence charged against the defendant as the cause of the plaintiff’s injury, was that the “ break or shifter ” of the elevator “ became and was out of order.” The statement does not allege that the plaintiff was injured because of the violation of any ordinance. The issue was thus narrow. The rule is that an ordinance and its violation may be shown by proof, not as proving negligence, but only in connection with other evidence which proves negligence.
    In the case before the court the issue was narrowed to the condition of the “ break or shifter.” It was on this question that the case went to the jury. The ordinance relating generally to the inspection of elevators, the use of certain appliances, etc., had no direct bearing upon the single allegation of the plaintiff that an improper “ break or shifter ” was used.

      Fred. Taylor Pusey and Q. J. Hepburn, for appellee.
    The proof of the violation of the provisions of these ordinances, while not establishing negligence per se on the part of the defendant, was some evidence of negligence, which might be considered with the other evidence of negligence submitted: Herron v. Pittsburg, 204 Pa. 509 ; Foote v. American Product Co., 195 Pa. 190 ; Lederman v. Penna. R. R. Co., 165 Pa. 118.

      June 15, 1904:
   Opinion by

Mr. Justice Brown,

If the two ordinances of the city of Philadelphia relating to the inspection of elevators had not been introduced by the plaintiff under defendant’s objection, and the verdict had been in his favor, judgment for hijp on it would have to be affirmed. In all other respects the case was properly tried and submitted to the jury. The third, fourth, fifth and seventh assignments of error are dismissed.

' The fall of the elevator was alleged to be due to the break-' ing of a brake or shifter, the use of which is the distinct and specific act of negligence charged by the plaintiff as responsible for the falling of the elevator and the resultant injuries to him. In his charge to the jury the learned trial judge, with the pleadings and proofs before him, very properly said: “ Whatever the condition of that elevator may have been, the plaintiff has narrowed your ground of inquiry by indicating what he alleges to have been the negligence of the defendant in this case, and that is, in employing upon this elevator a defective shifting rod for starting and stopping it. It is alleged upon the testimony of this elevator man and the inspector, who gave you their opinion to that effect, that this bar was too light and not strong enough to perform the work or stand the strain required by a bar of that character, and this theory is, that the accident was occasioned by reason of this bar being too light to stand the strain, and that it ultimately gave out at a critical moment when it should have worked.”

When negligence is charged it must be proved. Proof of the violation of an ordinance regulating or relating to conduct alleged to have been negligent is not in itself conclusive proof of the negligence charged. The ordinance and its violation are matters of evidence, to be considered with all other evidence in the case: Lane v. Atlantic Works, 111 Mass. 136. But this rule is limited to cases in which the ordinance relates to the alleged negligent act under investigation. Here, as stated, it was the use of an alleged defective shifting rod in the elevator. Ordinances and their violation are admissible, not as substantive and sufficient proof of the negligence of the defendant, but as evidence of municipal expression of opinion, on a matter as to which the municipal authorities had acted, that the defendant was negligent, and are to be taken into consideration with all the other facts in the ease. Illustrations of this are found in several of our later cases. In Lederman v. Pennsylvania Railroad Co., 165 Pa. 118, one of the questions was the undue rate of speed at which the defendant company was running its cars through the city of Lancaster, and we held that the ordinance in relation to the speed of railway trains within the city limits had been properly admitted. An ordinance of the city of Philadelphia requires all vehicles, including bicycles, to keep to the right, and, in Foote v. American Product Co., 195 Pa. 190, where the rider of the bicycle had conformed to this ordinance, and the driver of the wagon that ran into him had not, we said, through our Brother Mesteezat : “ While the ordinance in itself was not evidence of negligence, it may be considered with other evidence in ascertaining whether the defendant was guilty of negligence.” When the suit is against the municipality itself, and it is charged with negligence, due to the dereliction of its employees, their violation or disregard of its own regulations and ordinances relating to the matter under investigation are proof of such dereliction, though not necessarily of the specific negligence charged, which, as in all other cases, must be proved by proper and satisfactory evidence. The dereliction of the municipal employees is to be taken into consideration with the other facts in the case, upon proof of which the plaintiff relies to sustain his allegation of negligence. An illustration of this is Herron v. The City of Pittsburg, 204 Pa. 509, which was an action against the city to recover damages for personal injuries sustained by a boy from contact with a live, naked telephone wire used in the police service of the city, and it appeared that the break in the wire was known to the police officials within an hour after it had occurred, and that it was also known to them to be in close proximity to other wires, some of which carried strong and dangerous currents of electricity. We regarded as proper the admission of the ordinance of the city and the rules of the police department relating to the inspection and use of the city wires.

The ordinance of April 10,1894, provides for the inspection of elevators by inspectors duly appointed by the city of Philadelphia, and makes it the duty of the owner or operator of an elevator, after its inspection, to procure from the Inspector a certificate that it is in condition to be operated, and to expose the certificate to public view as near as possible to the elevator car. This ordinance does not make it the duty of one owning or operating an elevator to demand an inspection, and it is only after the inspector has inspected that he must procure and expose the certificate. But, even if there had been an inspection here, and the defendant company had not procured and exposed the proper certificate, its failure to do so is not the negligence charged against it that resulted in plaintiff’s injury, and the ordinance clearly had no proper place in his evidence.

The later ordinance of April 6,1900, is also one for the inspection of elevators. Its title is “ An ordinance to provide for the inspection of passenger and freight elevators and to make an appropriation therefor.” There is nothing in it pertinent to plaintiff's cause of action as set forth in his statement and proved on the trial. It is true, by the third clause of section 4, it is provided that “whenever any elevator shall be in need of repairs, in any respect pertaining to the operation of the same, or any of the apparatus or machinery connected with an elevator shall become impaired, necessitating the temporary. disuse of the elevator, or any accident shall occur in an elevator or elevator shaftway affecting life or limb, it shall be necessary for the owner, lessee or agent of the building in which the said elevator is located, or other person under whose control and management the said elevator is operated, to notify the chief of the bureau of building inspection,^ of such impairment, disuse or accident, and shall not again put the said elevator in operation until an inspection has been made and the condition of the elevator approved by the inspector; ” but there is no testimony that, before the day on which the plaintiff was injured, there was any duty on the defendant company to notify the chief of the bureau of building inspection of the impairment or disuse of the elevator, due to the defective shifting rod, or of any accident occurring in it that required the suspension of its operation until an inspection was made and its condition had been approved by the inspector. As to the specific act of negligence charged against the company, there is absolutely no proof that it had been called upon to do anything required by this ordinance.

The only effect of the introduction of these ordinances was to confuse and mislead the jury. Though there was no violation of them, so far as they related to the specific act of negligence charged, zealous counsel may have led the jury to believe that there was, and to the undiscriminating mind such a conclusion was more than possible. Even if there had been a violation of other sections of the ordinance of 1900 than the clause quoted, such violation would have had no relevancy to the issue the jury were trying.

Judgment reversed and a venire facias de novo awarded.


author: Mb. Justice Brown,

text:
    Pure Oil Company v. Terry, Appellant.

      Replevin—Bond,—Retention of goods—Measure of damages—Damages.

    Where property replevied is permitted to remain in the full possession, enjoyment and use of the defendant until,its sale by the plaintiff, when most of it is purchased by the defendant, and thereafter the replevin suit is tried, and the plaintiff is adjudged to have no title, and the defendant sues on the replevin bond, the measure of damages in the latter suit is the actual amount of cash which he paid for the portion of the goods bought at the sale, together with the actual value of the remainder of the goods at the time they were sold to others and taken away.

      Replevin—Bond—Condition.

    The conditions of a replevin bond are distinct and independent of each other. One is that the plaintiff shall prosecute his writ with effect; the other is that he shall and will make return of the goods if return of the same shall be adjudged. The penalty for the breach of either is forfeiture of the bond.
    Argued March 22, 1904.
    Appeal, No. 286, Jan. T., 1903, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1900, No. 903, on verdict for plaintiff in case of Pure Oil Company v. Howard Terry, Assignee, and the Real Estate Trust Company of Philadelphia.
    Before Dean, Fell, Brown, Mestrezat and Thompson, JJ.
    Reversed.
    Assumpsit on a replevin bond. Before Brégy, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,788. Defendant' appealed.

      Error assigned was refusal of defendant’s point, quoted in the opinion of the Supreme Court.

      Joseph deF. Junlcin, with him Henry 0. Terry, for appellants.
    This case is ruled by McInroy v. Dyer, 47 Pa. 118.

      Thomas Earle White, for appellee.
    June 15, 1904:
   Opinion by

Mb. Justice Brown,

On January 4, 1897, Howard Terry, assignee of the Pennsylvania Oil Company, issued a writ of replevin against the Pure Oil Company to recover possession of certain personal property. The Pure Oil Company was in possession of it as lessee of Lewis Emory, Jr. The writ was served by the sheriff, his return being: “ Replevied, as commanded, and summoned defendant, and property so replevied delivered to plaintiff.” As a matter of fact, the plaintiff did not take possession of any of the articles enumerated in the writ. All were allowed to remain in the possession of the defendant, which continued to use them as lessee oE Emory without any interference by the plaintiff. The rent for the use of them was paid to Emory by the defendant after the writ was issued and served, just as it had been paid before. So far as there was any actual interference with the defendant’s use of the articles replevied, the writ might as well not have been issued. The business of the defendant, according to the testimony of its manager, “ ran along just as it had before.” This unchanged condition continued until July 13, 1897, when Terry, as assignee, sold the articles he had replevied at public sale, the sale amounting to $1,380.20. Nearly all of the property was purchased by the Pure Oil Company and returned to it, only about one fourth of tire proceeds of the sale being for articles purchased by other parties. Except for the very short time required to get the property ready for sale and to sell it, the appellee was at no time deprived of the use of any portion of it by Terry. Subsequently, when the replevin suit was tried, there was a verdict for the defendant, and the judgment on it was affirmed by this court: Pennsylvania Oil Company v. Pure Oil Co., 195 Pa. 388. Suit was then brought on the replevin bond, and, after a judgment for the amount admitted to be due in the affidavit of defense, there was a trial to recover the balance alleged to be due. The jury Avere instructed that the measure of the plaintiff’s damages was the value of the goods on Jamb ary 4, 1897, when they were replevied, and that it was entitled to recover the amount of the value at that time, less what had been paid to it on account of the judgment taken for the amount admitted to be due. This instruction is the error complained of, the contention of the appellant being that, as the appellee had not in any manner been interfered with in the' use of the replevied property until July 13, 1897, the proper measure of damages is : (1) What it paid for the property purchased by and returned to it; (2) the real value of the property which it did not purchase and was not returned to it, with no deduction for auctioneer’s commissions or expenses of sale ; and (3) compensation for the detention of the goods from it on the day of sale. The position taken by the appellants is stated in the following single point presented by them and refused by the court: “ If the jury believe from the evidence that the plaintiff was practically in possession of all the replevied goods from the time of the service by the sheriff until the actual sale thereof, and bought nearly all the replevied property at the said sale and immediately resumed possession of the same, and subsequently recovered back with interest and costs all the money paid out for said goods, then your verdict should be for the plaintiff, for the value of the goods not purchased with interest on such value to this date, plus the auctioneer’s commissions, deducted from the purchase money with interest on such commissions, and for such damages as you may think the plaintiff actually suffered by the detention of the goods from the beginning until the close of the sale.”

The conditions of a replevin bond are distinct and independent of each other. One is that the plaintiff shall prosecute his writ with effect; the other is that he shall and will make return of the goods, if return of the same shall be adjudged. The penalty for the breach of either is forfeiture of the bond. Here the breach complained of and proved is that the plaintiff did not prosecute his writ with effect, and the penalty for not having done so might be the sum named in the bond, if the damages sustained, or that ought to be allowed, call for it. If the writ had been sued out fraudulently and without color of right, exemplary damages might be given in the same manner as for a wanton or malicious trespass : McCabe v. Morehead, 1 W. & S. 513 ; but the case presents nothing that would justify more than compensatory damages to the appellee.

If these proceedings were trespass vi et armis or trover for the taking and carrying away, or the conversion of appellee’s goods, the damages to which it would be entitled would be such only as it actually sustained, there being no evidence of outrage or oppression. This is the rule as to both these actions, and is to be applied to replevin, which, for the application of it, is strictly analogous to trover: McDonald v. Scaife, 11 Pa. 381. What, then will be proper compensation to the appellee ? Damages for just what it lost. What did it lose? Nothing except the articles that were sold away from it on July 13,1897, at a fairly conducted sale. From January 4 down to July 13 it remained in the actual possession, use and enjoyment of the property which had been leased to it by Emory. Its relations with him were not disturbed, and during that period its business, in which it employed all of the replevied articles, went on as if the writ had not been issued. On July 13 it regained from the technical possession of Terry, assignee, most of the goods, none of which had ever been out of its actual possession. To do so, it paid for them, and what it so paid is the first element of the damages it sustained. That this sum must be returned to it, as it already has been, is conceded. What other conceivable item of damages can there be as to articles purchased by it and returned to it ? They all really belonged to Emory. The appellee, as his lessee, had the. use and enjoyment of them during the entire six months that intervened between the issuing of the writ and the day of the sale, and, when they were again under its absolute control, if it could not return them to its lessor in the same condition they were in in January, it was no fault of Terry, who had done absolutely nothing to impair their value. Proper care of them during the interval had been upon the appellee, for it had continued to use them for its own purposes. If, in the beginning, it had stood aloof from them, and had continued to do so for the reason that they had been taken from it by the plaintiff’s process, and they had not been returned to it before the trial, the situation would be entirely different, and the measure of damages which it now invokes would be just.

In McInroy v. Dyer, 47 Pa. 118, the plaintiff below brought suit for damages for the- sale of his property by a constable on an execution issued against another. There was evidence that it had been bought in for the plaintiff at the sale, and, on the question of the proper measure of damages, we quote at length from the opinion of Strong, J., as controlling authority for the view we have just expressed, there being, as already indicated, no difference in the application of the rule whether the action be trespass, trover or replevin: “ The only important question in this case is, whether the court below applied a correct rule for the assessment of damages. It was an action of trespass against a constable and another for levying upon and selling the plaintiff’s goods under an execution against Barnes and Jennings. The goods had been sold at the constable’s sale, and there was some evidence they had been bought in for the plaintiff. The court instructed the jury that the measure of damages Avas not what had been paid at the constable’s sale, but the value of the property at the time the sale was made, with interest thereon from that date. This was a correct enunciation of the rule, as applicable to ordinary cases of trespass de bonis asportatis, bub ib is applicable only to cases where the owner has not regained possession of the goods before the trial. If in this case, the property seized and sold by the constable was bought in by the plaintiff, or for him, at a price less than its value at the time of the seizure or the sale, that value was not, in any just sense, a measure of the injury caused by the act of the constable. What the law seeks to secure in an assessment of damages to an injured party is compensation. He can ask no more than to be made Avhole. In most instances a leAy and sale of a plaintiff’s goods for the debt of another deprives him entirely of the property, and nothing less than its value, therefore, would be compensation. But if there has been a redelivery to him, or if he has reacquired it, he may be compensated with less. He is then entitled to what it has cost him to regain possession, to what he has lost by the temporary deprivation of the use of the chattels, and to such other damages as are commensurate with the injury. No other rule than this will do complete justice, and it is supported by authority. In actions of trover it has often been held that though there was a complete conversion, and though the general rule is, the measure of damages is the value of the goods at "the time of the conversion, or the highest value at any time between the conversion and the trial, yet if they have been regained by the plaintiff before the trial, that fact goes in mitigation of damages. In such a case the value of the use of the goods, during the period in which the plaintiff was deprived of possession, with any injury to the property itself, and the expense of recovering it, have been declared to be full compensation. In Cook v. Hartle, 8 Car. & Payne, 570, a plaintiff was not allowed to recover the value of goods which had been converted to the use of the defendant and afterwards returned. The same rule was held in Moon v. Raphael, 2 Bing. N. C. 310. In Baldwin v. Porter, 12 Conn. 473, which was trover for saw-logs, the defendant had seized in execution and sold as the property of Birdsay Baldwin, it was held, the fact that Baldwin had bid in the property at the sale for the plaintiffs, who were the true owners, was admissible in mitigation of damages ; and the real damages were declared to be the sum paid at the sale. The same doctrine was asserted in Curtis v. Ward, 20 Conn. 204, and in Massachusetts in Pierce v. Benjamin, 14 Pick. 356, and Greenfield Bank v. Leavitt, 17 Id. 161. So also in New York, Reynolds v. Shuler, 5 Cowen, 323, and in Ewing v. Blount, 20 Alabama, 694, the principle was asserted in strong terms. These were actions of trover, it is true, but there is no reason for a different rule in trespass. In both, the general principle is that a plaintiff is entitled to such damages as he has actually sustained. In both, the value of the property lost by the plaintiff is the general standard of measurement of damages, laying out of consideration what may be recovered in trespass for acts of outrage and oppression accompanying the taking. What will make the plaintiff whole is the same in one form of action as in the other. No distinction is recognized by the courts. In Baker v. Freeman, 9 Wend. 36, it was decided that where the goods of a party had been sold under illegal process, and they had been bid off at the sale by an agent of the owner, who purchased for the benefit of his principal, and paid his bid with the money of the principal, the measure of damages in an action of trespass was the amount of the bid and interest, and not the value of the property sold. And in Brace v. Head, 3 Dana’s Rep. (Ky.) 491, which was an action of trespass de bonis asportatis, for goods illegally sold on execution, it was holden that if the proceeds of the sale went to the plaintiff’s benefit, this would operate to mitigate the damages. See also Clark v. Hallock, 16 Wend. 607.”

The damages sustained by the appellee for the loss of the articles which it did not purchase are to be measured by the actual value of the same at the time they were sold to others and taken away. The only other measure as to this portion of the replevied property would be its value on January 4, 1897, with interest from that date, from which there would have to be deducted a reasonable sum for the use of it by the appellee during the interval. Under the circumstances, we regard the actual value at the time of the sale as the proper standard for the assessment of damages for these items.

The point submitted by the defendant should have been affirmed. The assignments of error are all sustained and the judgment reversed, with a venire facias de novo.


text:
    Sharpless’s Estate.

      Wills—Life estate—Remainder—Estate in fee simple.

    Testator after having given his wife a life estate directed as follows: “And further, from, and immediately after the decease of my said wife, I do give, devise and bequeath unto my son his heirs, executors, administrators and assigns, to, and for, his own use only and behoof forever, all the rest residue and remainder of my estate real, personal and mixed whatsoever and wheresoever, except the three bequests hereafter named to be paid on and after the death of my said wife, providing nevertheless that if my said son shall depart this life without leaving lawful issue to survive him and my said wife being also deceased, then it is my will and I do hereby give, devise and bequeath unto the three daughters of C. the sum of three thousand dollars.” After other bequests he gave his residuary estate to charities. The widow died after testator, and the son died after his mother, unmarried. Held, that upon the death of testator’s widow the son took an absolute estate in fee simple.
    Argued March 29, 1904. Reargued May 9, 1904.
    Appeal, No. 21, Jan. T., 1904, by George H. Off, Jr., et al., Executors of N. Harrison Purdy, deceased, from decree of O. C. Phila. Co., July T., 1903, No. 163, dismissing execeptions to adjudication ill estate of Joseph I. Sharpless, deceased.
    Before Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts appear by the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      George Wharton Pepper, with him Henry B. Hodge and Charles H. White, for appellant.
    Testator clearly intended the ulterior limitations to take effect in any event upon the death of his son Charles without leaving lawful issue to survive him whenever that death might occur: Middleswarth v. Blackmore, 74 Pa. 414.
    The rule of construction, that -where the context is silent, the death of the first taker shall be construed to mean death in the lifetime of the testator or death in the lifetime of the tenant of the particular estate, has never been applied in Pennsylvania, unless the application of the rule has been in conformity with the probable intention of the testator: Stoner v. Wunderlich, 198 Pa. 158; Ralston v. Trusdell, 178 Pa. 429; Jessup v. Smuck, 16 Pa. 327.

      Frank P. Prichard, with him Francis A. Me Carrón, Sharswood Brinton and George Tucker Bispham, for appellee.
    June 15, 1904:
   Opinion by

Mr. Justice Brown,

After creating a trust of substantially his entire estate, to continue during the lifetime of his widow, the testator provided that upon her death it should terminate, and, after directing that $6,000 should be paid to such person or persons as she might nn.me in her will, he disposed of the rest of his estate as follows : “ And further, from and immediately after the decease of my said wife, I do give, devise and bequeath unto my said son Charles his heirs, executors, administrators and assigns, to, and for, his own use only and behoof forever, all the rest, residue and remainder of my estate real, personal and mixed whatsoever and wheresoever except the three bequests hereafter named to he paid on and after the death of my said wife, Providing nevertheless that if my said son Charles shall depart this life without leaving lawful issue to survive him and my said wife Ann Maria Sharpless being also deceased Then it is my will and I do hereby give devise and bequeath unto the three daughters of Joseph Cranmer the sum of Three thousand dollars ; ” and, after making other various bequests, he gave his residuary estate to The Northern Home for Friendless Children, The Foster Home and The Merchant’s Fund for Broken-down Merchants, all of the city of Philadelphia. The testator died June 7, 1870. His widow survived him nearly ten years, and his son, who was never married, died May 12, 1908.

In interpreting the clause quoted, and from which the question raised on this appeal is to be determined, we need invoke no rules of construction nor consider the cases and authorities cited in the elaborate argument of the learned counsel for the appellants. The intention of the father, that the son should come into possession of an indefeasible estate if he should survive the mother, seems to he so clear that no refined reasoning ought to make it doubtful, and, as no rule of construction requires us to strike it down, it is supreme. To his son, from and immediately after the decease of his wife, he gives and devises, in clear, apt, and even technical, words his entire estate, less three bequests which he specifies in a later clause of his will; but, though this is so, the appellants point to the proviso that, if the son should “ depart this life without leaving lawful issue to survive him and naysaid wife Ann Maria Sharpless being also deceased then it is my will,” etc., as cutting down this absolute estate, because the son did die without leaving lawful issue to survive him. Such an absolute gift can be cut down by subsequent words, unequivocally showing that to have been the testator’s intention, but they are not found in this proviso. As we read them, they are expressive of an intention, apart from any rule of construction, that, if the son died during the lifetime of the widow, without leaving lawful issue to survive him—died without leaving lawful issue to survive him, before the period of distribution, which was her death—then, and only then, was there a limitation over; and the words “ and my said wife Ann Maria Sharpless being also deceased ” were used to express the intention that, though there should be the limitation over, it should not take place upon the death of the son, but only upon tbe succeeding death of the widow. The intention of the testator would, perhaps, have been more clearly expressed if he had said, “ if my said son Charles shall depart this life without leaving lawful issue to survive him, then, upon the death of my wife, Ann Maria Sharpless, I give, devise and bequeath,” etc., but the words used express with sufficient clearness the intention, that only upon the death of the widow, surviving his childless son, should his estate pass to the persons and charities named. A very reasonable explanation given by the court below for the insertion of the words “ my said wife Ann Maria Sharpless being also deceased,” is that the testator, notwithstanding the creation of the trust to exist during the lifetime of the widow, was anxious to protect her from any possible claim that might be made by a legatee for his legacy immediately upon the death of the son, dying .without leaving lawful issue during her lifetime.

We affirm the decree because survivorship of the mother was the only condition annexed to the absolute gift to the son; and he did survive her and come into possession and absolute control of what his father gave him. Decree affirmed and appeal dismissed at costs of appellants.


author: Mr. Justice Potter,

text:
    Kelchner v. Nanticoke Borough, Appellant.

      Negligence—Boroughs—Heap of ashes in roadway.

    A municipality is not bound to remove from the street every inequality against which a foot passenger may be liable to strike a foot, or which may possibly cause a stumble. Neither is it required to smooth off and level down the surface of a dirt road to a uniform plane.
    In an action against a borough by a woman to recover damages for personal injuries sustained by falling over a small heap of ashes in the roadway of a street, the plaintiff is not entitled to recover where the evidence shows that under ordinary circumstances the deposit of ashes in the street was not detrimental, as they prevented slipping on the hard rock to which the street was cut down, that the heap in question was only five or six inches in height, and that on the night before the accident rain and sleet fell, and that the heap of ashes in question became a small mound, hardened and concealed from sight.

      Practice, C. P.—Verdict—Special verdict—Judgment.

    It is the province of a special verdict to find and place on record all the essential facts of the case. This includes the disputed as well as the undisputed facts. What is not found by the verdict is presumed not to exist, and no inferences as to matters of fact are permitted to supply the facts themselves which the verdict should have found. In entering judgment, the court is confined to the facts found by the special verdict, and unless they are sufficiently found, no judgment can be entered.

      Charge of court—Inadequacy.

    A charge in a negligence case which does not state to the jury that the question of the defendant’s negligence is'for their consideration and does not give any definition of negligence nor the degree of care or supervision which a municipality defendant is bound to exercise over its streets, is inadequate.
    Argued April 11, 1904.
    Appeal, No. 245, Jan. T., 1904, by-defendant, from judgment of C. P. Luzerne Co., May T., 1900, No. 494, on verdict for plaintiff in case of R. P. Kelchner and Emma Kelchner v. Nanticoke Borough.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Wheaton, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The following were the questions submitted to the jury and the answers thereto:
    1. Were there ashes piled up on the street at the point where Mrs. Kelchner fell ? Answer: Yes.
    2. If so, had they been there long, and how long ? Answer: Three weeks prior to date of accident.
    21. And had they7 been there long enough so that the borough officially ought to have known it ? Answer : Yes.
    3. If ashes were there, were they covered with ice ? Answer: Yes.
    4. Was there any soft snow on the ice ? Answer: Yes.
    5. Did Mrs. Kelchner step on the top or side of a pile of ashes concealed under ice, or ice and snow ? And if so, were the ashes concealed by ice alone or frozen snow, or by ice and soft snow on top of the ice? Answer : We believe that Mrs. Kelchner stepped on the side of a pile of ashes concealed by ice and soft snow on top of the ice.
    6. If there were ashes there in a pile, were they apparent to Mrs. Kelchner, did she see them, or could she have seen them if she had looked? Answer: No.

      Or if slie could not have seen the ashes, could she have seen the mound, if there was a mound, covered by ice or by ice and snow, as you shall' find that fact to be ? Answer : She could not have seen a mound inasmuch as it was covered with ice and soft snow.
    7. If there were ashes there, was her fall caused by the ashes, or by a slippery condition of the street -alone, or by the ashes and the ice which had formed on top of them, or by the ashes and ice and snow on top of them ? Answer: By the pile of ashes concealed by ice and soft snow.
    The jury returned a verdict for Emma Kelchner for $4,500 and for R. F. Kelchner $2,000, subject to the point reserved whether there was any ‘evidence in the case entitling plaintiffs to recover. • The court subsequently entered judgment for the plaintiffs on the verdict.

      Error assigned was in entering judgment for the plaintiffs on the verdict.

      William S. McLean and Richard B. Sheridan, with them J. M. Fritz, for appellant.
    There was no evidence to go to the jury that the defendant had constructive notice that the pile of ashes was on the cartway of the street: Burns v. City of Bradford, 137 Pa. 361; Rapho Twp. v. Moore, 68 Pa. 404; Otto Twp. v. Wolf, 106 Pa. 608; Rogers v. Williamsport, 199 Pa. 450 ; Morris v. Philadelphia, 195 Pa. 372 ; Beltz v. Yonkers, 148 N. Y. 67 (42 N. E. Repr. 401).
    There was no evidence then to go to the jury that the ash heap was so notorious as to be evident to all persons passing by: Burns v. Bradford, 137 Pa. 361; Lohr v. Philipsburg Borough, 156 Pa. 246.
    The ash heap was not the cause of the accident: Ahern v. Melvin, 21 Pa. Superior Ct. 462; Rotsell v. Warren Borough, 10 Pa. Superior Ct. 283 ; Boehm v. Bethlehem Borough, 4 Pa. Superior Ct. 385; Stager v. Ridge Ave. Passenger Ry. Co., 119 Pa. 70; Stringert v. Ross Township, 179 Pa. 614; Cotton v. Wood, 98 Eng. Com. Law Rep. 566.
    The special findings of the jury must stand unaided by inferences, intendment or admissions. They must find every fact necessary to show a good cause of action : Wallingford v. Dunlap, 14 Pa. 31; Pittsburg, Fort Wayne & Chicago R. R. Co. v. Evans, 53 Pa. 250; McCormick v. Insurance Co., 163 Pa. 184.

      John M. Gr arman, with him Samuel L. Fedder, for appellees.
    The law imposes upon borough authorities the duty of the maintenance of the public streets so that they shall be reasonably safe to persons using them : McLaughlin v. Corry, 77 Pa. 109 ; Erie v. Schwingle, 22 Pa. 388 ; Fritsch v. Allegheny, 91 Pa. 226 ; Kennedy v. Williamsport, 11 Pa. Superior Ct. 91; Monongahela City v. Fischer, 111 Pa. 9 ; Forker v. Sandy Lake Boro., 130 Pa. 123 ; Rick v. Wilkes-Barre, 9 Pa. Superior Ct. 399; Chilton v. Carbondale, 160 Pa. 463.
    June 15, 1904:
   Opinion by

Mr. Justice Potter,

This action was brought to recover damages for alleged negligence on the part of the defendant in failing to keep the public highway clear of obstructions to foot travelers. The specific act charged was failure to level down a small heap of ashes which had been deposited in the roadway by some of the adjoining residents. It appears from the evidence that the placing of ashes in the wagonway in that vicinity was not regarded as detrimental under ordinary circumstances, as the road was cut down to hard rock, and the ashes tended to prevent slipping and added security to the foothold. But upon the night before the happening of the accident, for which recovery is here sought, rain and sleet fell, and froze as it fell, so that by morning the surface of the street generally was covered with ice and snow, and this particular little heap of ashes became a small mound, hardened and concealed from sight.

It is alleged that Mrs. Kelchner, while walking in the wagon,way, owing to the slippery condition of the sidewalk, and in the act of passing from the roadway back to the sidewalk, stepped, without noticing, it, upon the small conical mound formed by the frozen ash heap, and her heel slipped from its sloping side and she fell, and received severe injury. The ash heap was described as between five and six inches in height, and owing to the loose material of which it was composed could not ordinarily constitute an impediment in the roadway to the passage either of vehicles or foot travelers. In the nature of things, it would ordinarily soon be scattered by the passing feet of animals or the wheels of vehicles. It was only the condition of the elements and the falling of the rain and sleet which hardened it into a permanent form. It is apparent, therefore, that the inquiry as to the negligence of the borough'authorities for permitting such a small heap of ashes to remain in the street, should be limited to the period during which alone, if at all, it could be properly considered as an impediment. This was only after it had, by the storm and frost, been changed from a harmless heap of soft material into a small but solid conical mound in the road. We find from the testimony that it existed in this shape only during the day upon which the accident occurred. No one seems to have noticed its existence of made any complaint concerning it.

The trial judge was in doubt as to whether there was any evidence in this ease which ought to be submitted to a jury as establishing the defendant’s negligence, and the plaintiff’s right to recover. He said to the jury : “Your verdict in this case will therefore be subject to a point of law, which I hereby reserve, as follows ; whether there is any evidence in this case entitling the plaintiff to recover.” He did not, however, allow the jury to find generally for the plaintiff or defendant under full instructions, but required the jury to find specifically as to certain questions of fact. The case was thus presented to the jury with directions to make separate answers to the questions propounded by the court. His instruction in this respect was as follows: “ If you find all of the various matters in dispute which I have submitted to you in accordance with the plaintiff’s contention (and I will send out a list of them, so that you may make a categorical answer to these propositions of fact), and that Mrs. Kelchner did not receive her injury by reason of any negligence on her part, which contributed to the accident, then you will find a verdict in favor of the plaintiffs, specifying separately how much for each plaintiff.”

The difficulty is, however, that the jury could not have understood from the charge of the court, that they had anything to do with -determining the negligence of the borough; and yet this was the essential qxiestion of fact to be determined in the case. The jury must have understood from the charge of the court that they were only to find the -facts -as to the questions which were specifically submitted to them. These did not include any finding as to negligence upon the part of the borough. Substantially, the jury were told that, if they found that ashes had been placed on the street at the point where Mrs. Kelchner fell, and had been allowed to remain there so long that the borough officials ought to have known it, and that if Mrs. Kelchner, without contributory negligence on her part, stepped on the top or side of the mound, so that her fall was caused by its presence and not by the slippery condition of the street, they should then find a verdict in favor of the plaintiffs. This was error. These facts might all have been found by the jury, and yet it would hot follow necessarily that the borough authorities were negligent in not discovering and removing the ashes between the time they were transformed into a solid mound and the happening of the accident to Mrs. Kelchner.

The court seems to have assumed, that if the presence of the ash heap was known, or ought to have been known, to the borough officials, this fact would necessarily convict them of negligence. Such an assumption, however, was not warranted. It by no means follows, that the mere presence of the small heap of ashes in the roadway at the time of the accident, constituted negligence. And yet the existence of negligence must have been found in order to support the judgment in this case. The jury were not told that the question of negligence was for their consideration, nor was any definition of negligence given to them, nor was the degree of care or supervision which the borough authorities were bound to exercise over the streets explained to them.

As this court said in Standard Sewing Machine Co. v. Royal Insurance Co., 201 Pa. 645: “ It is the province of a special .verdict to find and place on record all the essential facts of the case. This includes the disputed as well as the undisputed facts. What is not found by the verdict is presumed not to exist, and no inferences as to matters of fact are permitted to supply the facts themselves which the verdict should have found. In entering judgment, the court is-confined to the facts found by the special verdict, and unless they are sufficiently found, no judgment can be entered.”. .

In the present case the essential fact, that the borough officials were negligent, was not included in the special facts found by the jury. The court did say to the jury in one brief sentence that “ the right to recover in this case is dependent upon proof of the negligence of the defendant borough, and that its negligence was the approximate cause of the plaintiff’s injury and damage.” But the charge was so meagre and inadequate in so far as any definition of the duty required of the defendant under the circumstances was concerned, as to justly subject it to the criticism which was expressed by our Brother Mestbezat upon the charge of the trial judge in Hayes v. Penna. R. R. Co., 195 Pa. 184, where he said: “ It will be observed that the duty of the defendant in regard to keeping the bridge in repair is not defined, nor is there anything in the charge which indicates to the jury what was the measure of defendant’s duty in this respect. The court tells the jury that: 4 If you believe those facts and that without any negligence on her part, she was injured by reason of the negligence of the railroad, then she would be entitled to recover.’ The substance and effect of the charge is that if the defendant was guilty of negligence, the plaintiff could recover. Without more, this was insufficient. The jury could not determine whether the defendant was guilty of negligence without knowing the degree of care required of the defendant in keeping the bridge in repair. The absence of this care would constitute the negligence for which the defendant would be responsible. Hence, the court should have instructed the jurj1-clearly arid distinctly as to the duty of the defendant in the premises, and the failure to do so was error.”

Upon a review of all the testimony in the present ease, and under a just and reasonable view of the responsibility of the defendant under the law, it seems to us that the evidence was by no means sufficient to justify its submission to the jury. A municipality is not bound to remove from the street every inequality against which a foot passenger may be liable to strike a foot, or which may possibly cause a stuihble. Neither is it required to smooth off and level down the surface of a dirt road to a uniform plane. Such a degree of care is beyond the reach of practical attainment. Absolute safety is nowhere to be secured. A person may stumble or slip or fall anywhere, either in the house or out of doors. The testimony shows that at the time of the accident, the streets and sidewalks were covered with ice. It was difficult to get around safely upon the • streets in general. Nothing but the most anxious and minute vigilance ánd almost microscopic inspection could have disclosed to the borough officials the existence of the small ash heap in the roadway, covered as it was with ice and snow. The duty which the law imposes upon a municipality is only to exercise ordinary care to see that the highway is safe for travelers. For want'of this it is liable, but for nothing more.

The evidence in this case satisfies us that the doubt which the trial judge entertained as to the sufficiency of the evidence to be submitted to the jury, was well founded, and should have prevailed with him. The assignments of error are sustained, and the judgment is reversed, and is here entered for the defendant.


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    Tisch v. Rockafellow, Appellant.

      Partnership—Executors and administrators—Profits.

    An executor who is also the son of the testator, cannot be held personally liable as a partner in a banking business in which the testator was a partner, merely because he permits as executor, the testator’s capital to remain in the business, and permits credits to be entered in his pass book as executor for a share of the profits, of the business.
    Argued April 14, 1904.
    Appeal, No. 85, Jan. T., 1904, by defendant, from judgment of C. P. Luzerne Co., March T., 1899, No. 12, on verdict for plaintiff, in case of Louis Tisch v. F. Y. Rockafellow and Thomas Darling-, trading as F. Y. Rockafellow & Company.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Reversed.
    Assumpsit against an alleged partner. Before Lynch, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,968.06. Defendant appealed.

      Error assigned among others was (4) in refusing binding instructions for defendant.

      J. B. Woodward and Thomas Barling, of Woodward, Barling $ Woodward, for appellant.
    It lias long been settled that the • representatives of the deceased have no right to succeed him in the firm unless there is a clear agreement to that effect: Lindley on Partnership, star page 232; Pickens’s Est., 14 W. N. C. 407 ; Gwinn v. Lee, 6 Pa. Superior Ct. 646.

      James L. Lenahan, for appellee.
    A participant in profits, directly as such, no matter what may be the arrangement between the parties, is, as to third persons, a partner: Edwards v. Tracy, 62 Pa. 374; Wessels v. Weiss, 166 Pa. 490.
    June 15, 1904:
   Opinion by

Mr. Justice Potter,

The plaintiff in this case was a depositor in the private banking house of F. Y. Roekafellow & Company. The firm was originally formed in 1869 and .consisted of E. P. Darling, Thomas Blake and F. Y. Roekafellow. Blake died in 1885, but the partnership was continued by F. Y. Roekafellow and E. P. Darling until the death of the latter, October 19, 1899. At that time, E. P. Darling had #20,000 of capital invested in the bank and shared equally with Roekafellow in the results of the business. Thomas Darling, the appellant here, is the son of E. P. Darling and the executor of his estate. The banking house failed in business and closed its doors upon February 7, 1893. The plaintiff, who was a creditor of the bank, sought to recover from the defendant Thomas Darling the amount of the balance due him at the time of the failure, upon the ground that he had personally become a partner, in the bank. No partnership agreement between Roekafellow, the surviving partner of the old firm, and Thomas Darling ivas alleged, nor did the plaintiff claim that he had ever been led to believe that Thomas Darling was a partner. On the contrary he admitted that when he transacted his business' with the bank, he knew of no one except Roekafellow, as constituting the firm. His claim against Thomas Darling rests solely upon the theory that he allowed his father’s investment of #20,000 in the bank, at the time of his death, to remain there, and that he afterwards accepted profits from the business, and that because of his action- in this respect he became personally liable as a partner. It appears from the evidence that within about three years, something more than #8,000 was paid by Roekafellow to Thomas Darling as executor, by the entry of credits upon the pass book of the estate, in account with the bank. The surviving partner Rockafellow called these payments dividends, but he would not say that Thomas Darling knew that they were such. On the contrary, Thomas Darling testified that immediately after his father’s death he asked Rockafellow how soon he could withdraw his father’s capital and was told, that he (Rockafellow) would pay it as soon as he could.

The trial judge submitted the case to the jury with instructions to find for the plaintiff if they believed Thomas Darling received as profits the payments which had been entered upon the pass book. They did so find, and this appeal is taken from the judgment entered upon their verdict. We can find nothing whatever in the evidence to justify the submission of this question to the jury. The defendant Thomas Darling dealt with the bank in the first instance admittedly in his representative capacity as executor, and there is not a syllable of testimony to show that any change occurred in his relation to the bank. The capital which remained was the fund of the estate, and the payments which were made were passed directly to the credit of the estate, and did not in any way, so far as the evidence shows, go into the hands of Thomas Darling personally. So that in any aspect of the case, even if the amounts paid were rightfully considered as dividends instead of payments on account of principal, yet these payments were to the estate of E. P. Darling and were not to Thomas Darling personally. If a stranger had been acting as executor instead of the son of E. P. Darling, and these payments had been made in the same way, it is safe to say that no one would have questioned the fact that they were payments to the estate, and not to the executor individually. Counsel for the appellee seems to feel the pinch of this test, for he suggests that Thomas Darling as legatee under his father’s will, permitted his own capital to remain in the business, and that as legatee, he participated in the profits. But unfortunately for the merits of this suggestion, there is not a word of testimony to support it. We can find nothing whatever to bridge over the distinction between Thomas Darling acting as executor, and as an individual. He is not under the evidence, connected with the transaction in any capacity other than as executor.

The trial judge should have affirmed the defendant’s sixth point, and instructed the jury that under all the evidence the verdict must be for the defendant. The fourth assignment of error is therefore sustained and the judgment is reversed.


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    Chase v. Clearfield Lumber Company, Appellant.

      Timber—Trespass—Damages.

    In an action of trespass where it appears that the defendant through a misapprehension as to property lines entered upon plaintiff’s land, cut timber thereon, opened roads through it, and cut and piled underbrush along the roads, the measure of damages is the value of the timber taken, compensation for the loss of the use of the land occupied by the roads, and cost of removing or burning up the brush. In such a case it is error for the court to charge the jury that they might take into consideration the element of danger from fire by reason of the brush heaps “ as bearing upon the effect which the act had upon the market value of the property.”
    Argued April 18, 1904.
    Appeal, No. 23, Sept. T., 1902, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1902, No. 23, on verdict for plaintiff in case of Jane Chase v. Clearfield Lumber Company, Limited.
    Before Mitchell, C. J., Dean, Brown, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for injuries to land. Before Gordon, P. J.
    At the trial tbe evidence tended to show that the defendant company through a mistake as t'o the lines of its property entered upon plaintiff’s land, cut timber thereon, opened roads through it, and along the roads piled up brush heaps.
    A witness for the plaintiff, W. C. Goss, testified that the property was injured to the extent of $500 by reason of danger • of fire from the brush heaps. Subsequently the following request was made to the court:
    We ask now that the court strike out all the testimony of this witness so far as relates to the damages to this property arising from fire ; it is entirely speculative and too remote and uncertain.
    The Court: The plaintiffs cannot recover for remote and speculative damages, but we think the testimony of the witness was properly admitted. The question simply being what effect the building of the roads and the piling of brush resulting therefrom has upon the market value of the property, the difference in its market value before this trespass was committed and its market value after. The defendant’s motion, therefore, to strike out is refused, exception noted to the defendant.
    The defendant presented this point :
    3. That under the pleading or statements of plaintiff’s claim she cannot recover any amount for any alleged damage from fire, as testified to by W. C. Goss and Daniel H. Barnett; that such claim is too uncertain, is in its nature wholly speculative and cannot be taken into consideration and the jury must disregard that testimony and must not base any part of their verdict thereon. Answer: This point is affirmed so far as it relates to a specific recovery of damage from fire. But it is proper for the jury, in connection with all the other evidence in the case, to take into consideration the evidence as to the acts done and committed by the defendant as bearing upon the increased liability of damage from fire. This as bearing upon the effect which the act had upon the market value of the property, as explained in our general charge. You are to take into consideration all of these matters referred to not as specific items of damage to be recovered for, but as elements entering into the question of damage. [1]
    Yerdict and judgment for plaintiff for $1,504. Defendant appealed.

      Errors assigned were (1) above instruction, quoting it; (6) refusal to strike out evidence as above, quoting the bill of exceptions.

      David L. Krebs, with him A. M. Liveright, for appellant.
    It was error to refuse to strike out the testimony of Goss: Eshleman v. Martic Twp., 152 Pa. 68.

      Joseph B. McEnally, with him W. Glark Miller, for appellee.
    June 15, 1904:
   Opinion by

Mr. Justice Potter,

Under a misapprehension as to the proper location of the lines of its property, the defendant company entered upon lands of the plaintiff, and cut and removed some of the timber therefrom. It also made certain roads through the tract, and in so doing cut underbrush and piled it alongside the roadway. For the trespass of which it was guilty, the defendant was of course liable in damages. Upon the trial in the court below the plaintiff recovered for the value of the timber, and in addition the jury awarded a lump sum for the other damages done. In estimating these damages, the jury were allowed to take into consideration the increased danger from fire caused by piling the brush along the roadway. The defendant here complains that the trial judge was not content with instructing the jury to ascertain the value of the small timber, and of the herbage and grass trodden down and consumed, and the cost of removing the underbrush which had been cut and piled along the road, together with the amount to which the plaintiff had been interfered with in the use and enjoyment of the land; but instead he instructed the jury that they might take into consideration the element of danger from fire, “ as bearing upon the effect which the act had upon the market value of the property.”

This was only a case of ordinary trespass, and no permanent injury was done to the land. The timber taken could be paid for and the brush could be removed. When the roadways were given up, the timber would again grow thereon, and compensation for the loss o.f the use of the ground in the meantime could be made. As this court said in Helbling v. Allegheny Cemetery Co., 201 Pa. 171, where the injury was not of a permanent character, “ The measure of damages was the cost of restoring the property to its former condition, together with compensation for the loss of its use.”

In the present case in so far as the damage arising from the piling 'of the brush is concerned, the plaintiff will be properly compensated if she is given the cost of its removal. Any attempt to estimate the damages upon the basis of increased liability to fire caused by leaving the brush in piles along the íoád, could only’lead' to speculative results. The obvious and simple remedy was to remove or burn up the brush. When the cost of that was covéred, together with the value of the limber taken,'and to that was added the amount required to compensate plaintiff for the loss of the use of the land occupied by the road, she could have no further just cause of complaint.Certain witnesses who testified before the jury, based their estimate of the damages to the land upon the possibility of fire, owing to the continued existence of the brush heaps upon the land. When the basis of their estimate appeared, counsel- for the. defendant moved to strike out that part of the testimony upon the ground that it was entirely speculative, and too rer mote and uncertain; but the trial judge declined to do so. We regard the objection to the admission of this testimony as well founded, and the refusal to strike it out as error.

The first, sixth and seventh assignments of error are sustained, and the judgment is reversed with a venire facias de novo.