text:
    Bowers, Appellant, v. Rineard.

      Promissory notes—Alterations in note—Evidence.

    Where in an action on a promissory note it appeared from inspection that the date of the note was changed, and that it was also altered so as to become payable after the maker’s death, instead of one year after its date, and the evidence is uncontradicted that the alterations were made while the note was in possession and control of the plaintiff, and there is no evidence as to why the alterations were made, or when they were made, or that the maker of the note had any knowledge that they were made, the court commits no error in directing a verdict for defendant. In such a case the alterations of the note so as to make it become payable after the maker’s death, instead of one year after its date, is a material alteration prejudicial to the interests of the maker.
    Argued May 24, 1904.
    Appeal, No. 5, May T., 1904,' by plaintiff, from judgment of C. P. Dauphin Co., June T., 1908, No. 290, on verdict for defendant in case of Catharine E. Bowers v. Samuel W. Rineard and Milton G. Potts, executors of Samuel Rineard, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Jacobs, J.
    The facts appear by the opinion of the Supreme Court.
    Plaintiff presented the following points:
    1. The presumption is, in an action between tbe parties to a nonnegotiable note with apparent alterations on its face, that said alterations were made prior to the execution and delivery of said note, unless the said alterations are material and prejudicial to the maker, and impose some burden or peril upon him. Answer : This is refused. [1]
    2. The alterations, although apparent and made in material parts of the note in suit, are not prejudicial to the maker, or beneficial to the payee, and therefore the presumption that they were made prior to the execution and delivery of the note remains, unless overcome by the evidence in the case, and the case is for the jury on all the circumstances. Answer : This is refused. [2]
    3. If the jury believe that the note in suit remains now in all particulars as made when executed by Samuel Rineard and delivered to the plaintiff, then the verdict should be for the plaintiff for the amount of the note and interest. Answer: This is refused; there being no evidence upon which they can find that fact, and the court has taken the question from the ]'ury- [3]
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-3) above instructions, quoting them; (4) in giving binding instructions for defendant.

      Charles II. Bergner, with him II. M. Bretz, and Wetzel Hambleton, for appellant,
    cited: Jordan v. Stewart, 23 Pa. 244 ; Dutton’s Estate, 205 Pa. 244.

      Levi B. Alriclcs and George R. Barnett, with them John E. Alrichs, for appellees,
    cited : Marshall v. Gougler, 10 S. & R. 164; Stahl v. Berger, 10 S. & R. 170; Jordan v. Stewart, 23 Pa. 244; Neff v. Horner, 63 Pa. 327 ; Fulmer v. Seitz, 68 Pa. 237; Craighead v. McLoney, 99 Pa. 211; Burgwin v. Bishop, 91 Pa. 336; Nesbitt v. Turner, 155 Pa. 429 ; Martin v. Kline, 157 Pa. 473 ; Laubach v. Meyers, 147 Pa. 447 ; Bushv. Bush, 200 Pa. 392; Dutton’s Est., 205 Pa. 244; Howard Express Co. v. Wile, 64 Pa. 201; Lerch v. Bard, 153 Pa. 573; Coal, etc., Co. v. Evans, 176 Pa. 28.
    June 15, 1904 :
   Opinion by

Mb. Justice Mestbezat,

This was an action of assumpsit on a single bill or note under seal dated June 19, 1891, signed by Samuel Rineard and payable after his death to the order of Catharine E. Bowers, the plaintiff. The note is as follows :

“ $4,000. West Faib View, Cumbebland County, Pa.,

“ June 19, 1891.

“ O-ae-ye-a-r-aftcr date-1 promise to pay to the order of Catharine E. Bowers, four thousand dollars, after my death, with interest, without defalcation for value received, waiving the right of all valuation, appraisement, stay, homestead or exemption laws.

“ Witness present: Samuel Rineabd [Seal]”

This suit was brought April 17, 1903, against Rineard’s executors. On the trial of the case the plaintiff, after proving the maker’s signature, offered the note in evidence. The defendants objected to the offer on the ground that an inspection of the note disclosed alterations and changes in material parts of the instrument, and that before the note could be admitted as evidence the plaintiff was required to show to the satisfaction of the jury that the alterations were made before the execution and delivery of the note. The court, however, admitted the note but reserved the question raised by the objection for further consideration.. The defendants then introduced testimony to show that there were alterations in material parts of the note, apparent on inspection, and that the body of the note was in the handwriting of the plaintiff. The note was partly printed and partly written, and the testimony on the part of the defendants tended to show that an inspection of the instrument disclosed among other things that blue-black ink was used in the written part of the original note; that the date was originally January 19, 1891, and the note was payable one year after date to Catharine Bowers, and that several years thereafter brown ink had been used in changing the written part of the note to its present condition. The plaintiff offered evidence in rebuttal to explain the alterations in the note. It will be observed that the note sued on is dated June 19, 1891, is payable to Catharine E. Bowers after the maker’s death, and that the words “ one year after date ” have been erased by drawing a line through them.

At the conclusion of the testimony the learned trial judge withdrew the case from the consideration of the jury and directed a verdict for the defendants, on the ground that there were material alterations apparent on the face of the note prejudicial to the maker and that there was no evidence in the case explaining the alterations. A judgment having been entered on the verdict the plaintiff has taken this appeal.

The plaintiff contends in support of her appeal that the court erred in directing a verdict for the defendants because (1) the alterations were not prejudicial to the maker of the note and hence not a ground of suspicion as to their having been improperly made, and (2) there was evidence explanatory of the alterations sufficient to warrant the court in submitting the case to the jury. We do not regard either of these positions as tenable. The plaintiff’s counsel admit that alterations were made in the date and time of payment, and that they are material to the validity of the note. They are also, as we think, prejudicial to the interests of the maker. They destroy the integrity of the original instrument and subject the maker to liability on a contract to which he was not a party. The change of date is not apparently injurious to the maker, but it was manifestly made for a purpose which we cannot assume to have been intended to be, or is, detrimental to the party who made it. On the contrary it must be presumed that the plaintiff would not have made the alteration or permitted it to have been made in the date of the instrument if it was prejudicial to her interest, or was not in some way advantageous to her. The change of the time of payment from one year after date of the note till after the death of the maker was clearly prejudicial to him for the reasons suggested by the trial court. The note bore interest from its date, and the alteration gave the plaintiff a permanent investment for her money at the legal rate of interest during the life of the maker of the note. The original date and time of payment of the instrument permitted him to pay it at any time after January 19, 1892, but by the terms of the note in suit he could not discharge the obligation during his life. By her act in making the alteration, therefore, she prevented him from exercising the privilege of paying the note, which might have been most beneficial to. him, and, considering the length of time the note had to run, imposed an undesirable obligation upon him. While the death of Rineard sealed the lips of the plaintiff, yet if she is permitted to recover on the note in suit his death does not prejudice her, while it does prevent him from defending against the altered instrument. If she can recover by the mere proof of his signature to the original note, her postponement of the time of payment by changing the date of the maturity of the note till after his death denies Mm the opportunity of making a defense without in any way being prejudicial to her rights.

As suggested above it is conceded by the plaintiff that the changes in the date and time of payment of the note are both material alterations and are apparent from an inspection of the instrument. The least that could be expected or required under these facts to sustain an action on the note was that the plaintiff should show to the satisfaction of the jury that the alterations were made prior to the execution of the note or made after its execution with the consent of the maker. As the payee of the note, she had the custody of it from the date of its execution. She is therefore presumed to know why and when the alterations were made and with what intention they were made. The note in its present condition and as presented to the court and jury was not the obligation of the defendant’s intestate. He executed no note to the plaintiff on June 19, 1891, and made no promise on that date to pay any sum to her. Neither did he execute an obligation on that or any other date to pay her $4,000 after his death. In other words, the note in suit was not executed by the defendant’s intestate. These facts are conclusively established by the testimony in the case and the alterations apparent on the face of the instrument in suit, which are admitted to have been made while it was in the possession and control of the plaintiff. Unless therefore the changes made in the note are explained by the plaintiff as required by the trial court, she could not be permitted to enforce the note in suit for the all-sufficient reason that it is not the contract or obligation of defendant’s intestate. The only ground for a recovery here is the note in suit and the burden is on the plaintiff to show that Rineard signed and delivered it to her or agreed to the alterations in the note of January 19,1891, which resulted in the contract in its present form.

The plaintiff offered no evidence in explanation of the alterations in the note which would have enabled the jury to determine why the alterations were made or when they were made or that the maker of the note had any knowledge that they were made. The most that can be said of the testimony offered for this purpose is that it tended to establish an indebtedness of $4,000 in 1888, by Rineard to the plaintiff as evidenced by the first note and that another note was executed on January 19, 1891, for a like amount, but this evidence does not show why the latter note was changed in date to June 19, 1891, or was altered so as to become payable after the maker’s death instead of one year after its date. The plaintiff was required to produce evidence to establish these facts, and the burden was not met by proving an indebtedness of Rineard to the plaintiff.

For the reasons stated, the learned trial judge committed no error in directing a verdict for the defendants, and therefore the judgment is affirmed.


source: Caselaw Access Project

author: Pee Ctteiam:,

license: Public Domain

text:
    Lyons, Appellant, v. Philadelphia & Reading Railway Company.

      Landlord and tenant—Tenancy at will—Tenancy from year to year—Railroads—Eminent domain—Damages.

    Where a parol lease between a brewer and a firm of liquor dealers provides that the tenants may “remain as long as they wanted,’’ that the rental shall be determined by the number of barrels of beer purchased from the lessor, and that it shall be payable “ just as the beer bill was payable,” the tenants hold as tenants at will; and the mere fact that they hold over for more than a year, does not change the tenancy into one from year to year.
    Where a railroad company condemns land occupied by a tenant at will, and gives reasonable notice to the tenant to remove his goods and fixtures, and the tenant fails to do so, the railroad company will not be liable in damages to the tenant for injuries caused to his property by the demolition of the building.
    Argued May 24, 1904.
    Appeal, No. 2, May T., 1904, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 1902, No. 207, on verdict for defendant in case of W. H. Lyons and H. H. Treon, Tenants of Frank A. Rieker, owner, trading as Lyons & Treon, v. Philadelphia & Reading Railway Company.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat and Potteb, JJ.
    Affirmed.
    Appeal from report of viewers.
    From the record it appeared that plaintiffs who were liquor dealers, entered into a verbal undertaking with Rieker, the then owners, the terms of which were that they agreed to pay twenty-five cents for each barrel of beer more than the regular price elsewhere, as rental. The rental was “ payable just as the beer bill was payable—-paid at all times, .... along different periods,—running account .... sometimes every week they got a check.” The understanding was that the plaintiffs “ had a right to remain on that lot as long as you (they) wanted,” or, as the owner’s son testifies, they “could have stayed as long as they felt.”
    The tenants erected buildings on the premises which were used for bottling, storage, liquor-room and offices,—and also a stable, wagon shed, coal shed and outbuildings and machinery necessary to the conduct of their business.
    The defendant company being desirous to enter upon the lands for railroad uses, presented a bond in the usual form, which was approved May 16, 1901, and thereafter viewers were appointed for the purpose stated.
    The defendant gave notice to the plaintiffs December 20, 1901, that it desired possession of the lot March 1, 1902, and stated the notice was given to allow them time to arrange their affairs, but did not take actual possession of the premises until June 4, 1902.
    The plaintiffs disregarded the notice, and the railroad company proceeded to the demolition of the buildings. The court gave binding instructions for defendant.

      JError assigned was in giving binding instructions for defendant.

      Casper Bull, for appellant.

      John T. Brady, for appellee, was not heard.
    June 15, 1904 :
   Pee Ctteiam:,

The appellants were tenants at will of Rieker. The agreement under which they went into possession was altogether indefinite as to the time it was to last; they were to “ remain as long as they wanted.” The rent was not fixed either as to amount or time of payment, but was determined by the number of barrels of beer they should purchase from their lessor, and was payable “ just as the beer bill was payable.” A clearer case of tenancy at will would be hard to discover. Under such circumstances the mere fact that the tenancy ran along for more than a year did not change its character or convert it into a tenancy from year to year. “ Where the duration of the term is left uncertain .... the lessee holds ab initio as a tenant at will. And the mere payment of rent will not change the tenancy into one from year to year, unless there are other circumstances to show an intention to do so, as for instance an agreement to pay rent by the quarter, or some other aliquot part of the year: ” 18 Am. & Eng. Ency. of Law (2d ed.), tit. Landlord & Tenant, p". 188. But “ the mere payment of a periodical rent, however, will not necessarily have the effect of. changing the tenancy at will into a periodical tenancy and parol evidence may be admitted for the purpose of showing the character of the payment: ” 18 Am. & Eng. Ency. of Law (2d ed.), p. 186. It was on this last principle that the issues in McDowell v. Simpson, 3 Watts, 129, and Dumn v. Rothermel, 112 Pa. 272, were sent to the jury to determine whether the leases were at will or from year to year. In both cases the rent was paid yearly, and the expression of Justice Kennedy, in the former, so much relied on by appellants, that “ if the tenants were suffered to hold under it for upwards of a year, paying the rent as it became due, and the plaintiff receiving it without objection, the lease instead of continuing to be a lease strictly at will would thereby become a lease from year to year,” must be read in connection with the facts of the case.

Being tenants at will, the termination of the lessor’s estate, even though by involuntary alienation under eminent domain determined the appellants’ lease, and made them technically tenants at sufferance of the railroad company. The difference, however, is not practically of any importance. All they were entitled to in either case was notice and a reasonable time to remove their goods and fixtures. This they received, but failed to avail themselves of, and the learned judge below was justified in treating their conduct as an abandonment.

The filing of the bond by the railroad company did not change the nature of the tenancy, nor the rights of the appellants except so far as it substituted the company as lessor in place of Rieker. The bond was security for such damages as the appellants “ shall be entitled to receive for the entering by the said company upon the said lands, and establishing and constructing the said additional tracks and structures thereon.” If the company had entered immediately and demolished the buildings in the construction of its tracks, it would have been liable just as its predecessor, Rieker, would have been, for the damages caused by want of reasonable opportunity to appellants to remove their property, but such opportunity having been given, there were no damages, and the verdict was rightly directed for defendant.

Judgment affirmed.


author: Per Curiam,

text:
    Lodge, Appellant, v. United Gas Improvement Company.

      Negligence—Gas company—Explosion of gas—Evidence.

    In an action against a gas company to recover damages for personal injuries, it appeared that plaintiff while lighting a stove in the cellar of his father’s house was injured by an explosion. It appeared that in the cellar was a considerable quantity of gasoline. The father testified that on the evening before the explosion he discovered no gas when he put out the light in the cellar, and none in the morning when he passed through the kitchen. Plaintiff testified that when he opened the cellar door he smelled gas, but that it did not seem to be much. He did not say with any certainty that it was illuminating gas, and not the vapor of gasoline. Three days after the explosion a small break was found in a gas pipe in the third house away from that in which the explosion occurred. It was not shown that the gas had passed from this pipe to the cellar of plaintiff’s father. Held, that evidence of defendant’s negligence was insufficient to submit to the jury.
    Argued May 24, 1904.
    Appeals, Nos. 3 and 4, May T., 1904, by plaintiffs, from judgment of C. P. Dauphin Co., June T., 1902, No. 364, on verdict for defendant non obstante veredicto in case of John Lodge by his next friend and father George H. Lodge and George H. Lodge in his own right v. United Gas Improvement Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial it appeared that oh June 23, 1901,' plaintiff was injured by an explosion in the cellar of his father’s house while he was lighting a fire. At the time of the accident there was a considerable quantity of gasoline in the cellar. The evidence as to the presence of illuminating gas in the cellar is summarized in the opinion of the Supreme Court.
    Verdict for plaintiff. The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      William M. Hargest, with him Paul A. Kunhel and John E. Patterson, for appellant.

      M. E. Olmsted and O. H. Bergner, with them A. 0. Stamm, for appellee.
    June 15, 1904:
   Per Curiam,

Whether the explosion which resulted in the injury sued for was caused by illuminating gas was not shown beyond a mere conjecture that it might have been. The direct testimony of the plaintiffs, father and son, who were in position to know most about the presence of such gas in the cellar at the moment of the explosion, tends to show that there was none there, the father saying that he discovered no gas there the evening before when he put out the light in the cellar, and none in the morning when he passed through the kitchen, and the son that when he opened the door he smelled gas, but it did not seem to be much, and he did not say with any certainty that it was illuminating gas and not the vapor from gasoline of which it was admitted there was a considerable quantity there.

But even if it were shown that gas was there and caused the explosion, the negligence of defendant would not necessarily follow. No break in defendant’s pipes, or place of escape of gas was found until after the explosion, and then it was one which might have been caused by the explosion itself, and was in the third house away from plaintiffs, from which its passage to plaintiff’s cellar was highly improbable and certainly was not shown.

On the whole case the alleged cause of action was too uncertain and too remote to sustain a recovery.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Pennsylvania Telephone Company, Appellant, v. Hoover.

      Telephone companies—■Eminent domain—Act of April 29, 1874, sec. 33, P. L. 73.
    Under the Act of April 29, 1874, sec. 33, P. L. 73, telephone companies have no right of eminent domain over the private lands of individual owners.
    Argued May 24, 1904.
    Appeal, No. 6, May T., 1904, by plaintiff, from decree of Superior Court, March T., 1903, No. 21, reversing decree of C. P. Dauphin Co., Equity Docket, No. 298, continuing preliminary injunction in case of Pennsylvania Telephone Company v. Charles Hoover.
    Before Mithell, C. J., Fell, Brown, Mestbezat and Potter, JJ.
    Affirmed.
    Appeal from Superior Court.
    See 24 Pa. Superior Ct. 96.

      Error assigned was decree of Superior Court.

      Addison Candor, with him John E. Eox and C. LaRue Mun-son, for appellant.

      William W. Porter and William II. Middleton, for appellee.
    June 15, 1904:
   Opinion by

Mr. Justice Brown,

If a telegraph company does not possess the right of eminent domain, authorizing it to construct its lines upon private property in the exclusive use and enjoyment of the owner, it is conceded that such right is not possessed by a telephone company. If a telegraph company possesses this high right, it is conferred by clause 1, sec. 33, of the Act of April 29, 1874, P. L. 73, which authorizes the company “ to construct lines of telegraph along and upon any of the public roads, streets, lands or highways, or across any of the waters within the limits of this state.” No other part of the act need be read to ascertain whether the right to take private land has been expressly conferred. In the words quoted, or nowhere, is the express grant of it to be found. Whether tested by the common understanding of these words as collocated, or read in the light of strict grammatical construction, the qualifying word “ public ” applies to each of the four following it, and the phrase can mean only “public roads, public streets, public lands or public highways; ” but, that the appellant’s claim of the . high sovereign right to take private property for its corporate purposes ought to be sustained, we are asked to read the words as if written “ public roads, public streets, private lands or public highways.” Even the lay mind could hardly be reasoned into such a forced reading of them, and the eye of the law must not be strained to see in them the grant of the power claimed.

Our attention is directed to other portions of the act as indicating the legislative intention that the word “ lands ” was intended to include purely private property. It is urged that the words in clause 2 of section 33, “ in all cases where the parties cannot agree upon the amount of damages claimed, or by reason of the absence of legal incapacity of the owner or owners no such agreement can be made for the right to enter upon lands or premises for the purposes named in this section, the company shall tender a bond, or have the same filed in the manner provided in the 41st section of this act, and the proceedings be had as therein set forth,” indicate the legislative intention that private lands can be taken by a telegraph company. The answer to this, in the absence of express legislative direction that they can be so taken, is, that ownership of property abutting along a public road or highway extends to the middle of it, and, when an additional servitude is imposed upon it, the owner of the fee is entitled to compensation for the increased burden upon his “ lands or premises.” Again, the 41st section is cited as indicating the legislative intention, because it is there provided that in all cases in’which any corporation is permitted to take waters, streams, lands, property, materials or franchises for the public purposes thereof, and it cannot agree with the owner or owners for the compensation proper for the damage done, or likely to be done, the damages are to be secured, ascertained and paid as therein provided. This section is general, and applies to the corporations that are expressly permitted by the act to take private lands, such as a water company, which, by section 34, clause 2, is, in express words, given the right “ to enter upon such lands and enclosures ” as may be necessary for it, “ and, if any injury be done to private property,” compensation is to be made therefor in accordance with the 41st section of the act. The legislature having by this 'act expressly conferred on certain corporations the right to take private lands it must be regarded as withheld from the others to be incorporated under the same act to which the right is not given.

That the appellant must try to persuade us that we ought, by reading the act with it, discover that it possesses the right to take private property, instead of being able to at once point directly to the words clearly conferring such right, is conclusive that the same does not exist. There must be no effort to prove the existence of such high corporate right, else it is in doubt; and, if so, the state has not granted it. “ All grants of power by the government are to be strictly construed, and this is especially true with respect to the power of eminent domain, which is more harsh and peremptory in its exercise and operation than any other: ” Lewis on Eminent Domain, sec. 254. “ That which a company is authorized to do by its act of incorporation, it may do; beyond that all its acts are illegal. And the power must be given in plain words or by necessary implication. All powers not given in this direct and unmistakable manner are withheld. ... If you assert that a corporation has certain privileges, show us the words of the legislature conferring them. Failing in this, you must give up your claim, for nothing else can possibly avail you. A doubtful charter does not exist; because whatever is doubtful, is decisively certain against the corporation ”: Commonwealth v. Erie & N. E. R. R. Co., 27 Pa. 339. In Woods v. Greensboro Nat. Gas Co., 204 Pa. 606, cited to us by the appellant, this same rule was again reannounced and nothing at all was intimated as to the power of a telephone company. All that was said was, that if the exigencies of the business of the gas company should require the use of a telephone line, the company could obtain authority to construct one by securing in its interest a charter for that purpose; but such line could be construed and maintained only within the corporate powers and privileges of the telephone company.

We cannot agree that a denial of the right of the appellant to enter upon private lands will defeat the grant of its franchise to construct and maintain a telephone line, and that, as the right arises from absolute necessity, the legislature intended to confer it. As a rule, attested by daily observation everywhere, telegraph and telephone lines are on the streets or public highways, and when, very occasionally, they are over private property, they are there merely for the advantage of the company, and not because the efficiency of its service will be diminished by keeping on public roads. It is not needful that we say more in support of the decree of the Superior Court dismissing appellant’s bill. In all that was said by that court, Penna. Telephone Co. v. Hoover, 24 Superior Ct. 96, we concur, and, if we were to add more, it would be but a repetition of the views there expressed.

Decree affirmed and appeal dismissed at appellant’s costs.


text:
    Newlin, Appellant, v. Harris.

      Equity—Parties—Judge’s salary act—Act of April 14, 1903, P. L. 175.
    Where the court of common pleas has upheld the constitutionality of the judge’s salary act of April 14, 1903, and has awarded a peremptory writ of mandamus against the state treasurer, a private citizen has no standing to file a bill in equity to restrain the writ from being enforced and the salaries paid.
    Argued May 24, 1904.
    Appeal, No. 4, May T., 1904, by plaintiff, from decree of C. P. Dauphin Co., No. 329, Equity Docket, dismissing bill in equity.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Weiss, P. J., filed the following opinion:
    James W. M. Newlin, a citizen of the state, filed his bill April 16,1904, in this court, in which he complains that Judges Bell and Von Moschzisker had no right to sit in the court of common- pleas of Dauphin county to hear, and render judgment in, the mandamus proceedings instituted by the attorney-general of the commonwealth against Frank G. Harris, then state treasurer, which sought that judgment be given for the commonwealth and prayed that the then state treasurer be commanded to make payment of all warrants drawn upon him by the auditor-general in behalf of all the judges of the several courts of the commonwealth, in accordance with the act of assembly of April 14,1903, P. L. 175, and charges that the judges of the court of common pleas of this county had “ no warrant of law for calling in other judges to sit in this cause and the proceeding before them was corain non judice.”
    He further complains that the said Frank G. Harris had refused to pay the increased salary to the judges elected prior to April 14, 1903, that he as a citizen had a right to prevent the said state treasurer “ from paying out of the state treasury any money in violation of the constitution of the state ” and that Judges Bell and Yon Moschzisker did on April 5, 1904, award a writ of mandamus, “commanding him to pay the increased salaries fixed by the act of April 14, 1903, to judges who had been elected prior to its passage, and the said defendant, Frank G. Harris, declines to appeal to the Supreme Court, and proposes to obey the said writ of mandamus.”
    The relief prayed is that the defendant Harris be restrained from paying any moneys to judges elected prior to April 14, 1903, in excess of the salaries theretofore fixed by law.
    That the attorney-general be restrained from attempting to enforce the peremptory mandamus issued by Judges Bell and Yon Moschzisker sitting in the court of common pleas of this county requiring the defendant Frank G. Harris, state treasurer, to “pay to the judges elected prior to April 14,1903, the increased salary named in the statute of that date,” and that the defendants Judges Bell and Von Moschzisker be enjoined from enforcing the mandamus granted by them against the then state treasurer.
    On May 5, 1904, the plaintiff suggested that the term of office of the defendant Frank G. Harris had expired and that W. L. Mathues had succeeded him as state treasurer and moved the leave of the court that the latter be added to the bill as a party defendant.
    The attorney-general and also counsel for defendant Judges Bell find Yon Moschzisker moved to dismiss the plaintiffs bill and based the motion upon the want of jurisdiction of the court to entertain it.
    The complainant in his relation as a citizen seeks to restrain the attorney-general from having execution of a judgment which the commonwealth obtained in one of her own courts against the state treasurer, and furthermore asks the court which rendered the judgment to restrain itself from awarding a writ of execution.
    The ground- upon which this restraining order is invoked is that the judges who rendered the judgment had no warrant or authority to sit and hear the cause and their determination of it was a nugatory act. They are judges of the court of common pleas of Blair and Philadelphia counties respectively and presided at the request of the two judges of the court of common pleas of the county of Dauphin for what was deemed good and sufficient cause. The complainant was neither relator nor respondent in the cause, and sustains no relationship to it, and has no interest in it, other than that begotten of citizenship of the state.
    A stranger to an action at law invokes the strong arm of a court of equity to enjoin the plaintiff in that action from reaping the fruit of its judgment; to enjoin the defendant from observing and discharging what he is thereby commanded, and the court itself from affording a remedy upon the judgment which it solemnly rendered.
    This proposition carries with it its own refutation. The judges who sat in the mandamus proceedings were sitting as judges of the court of common pleas of Dauphin county, so far at least as concerns the complainant; sitting as a court they pronounced the sentence of the law ; and we are asked to say by a decree that the act was contrary to law.
    The function of an injunction is to compel inaction, that of a mandamus to compel action. If the defendant in the mandamus failed to obey the peremptory writ, he would be in contempt, and if we were to restrain him, he would be subject to contradictory orders, one by a court of common pleas and another by a court of equity. A court ought not to put a defendant in conflict with the order of another court.
    In view of the foregoing we do not deem it necessary to pass upon the motion of the complainant to add the name of the present state treasurer as a party defendant. Besides the bill disclosed nothing upon which a decree could be made against him.
    The complainant does not disclose any equity, interest or injury and has no status to intervene in the action by the commonwealth.
    The motion to dismiss the bill is allowed, and the bill is dismissed.

      James W. M. Newlin, for appellant.

      Hampton L. Carson, attorney general, and John Gr. Johnson, for appellee.
    June 15, 1904 :
   Per Curiam,

The only question involved in this appeal is whether a stranger not a party to a suit, and having no interest in it beyond that of any other citizen, can interpose to take it out of the hands of the responsible parties to the record and conduct further proceedings according to his own views. No authority has been shown for any such extraordinary and irregular action.

Judgment affirmed.


text:
    Vance’s Estate.

      Will—Construction—Avoidance of intestacy.

    A will must be construed so as to avoid a partial intestacy unless the contrary is unavoidable.
    Testatrix gave the residue of her estate to trustees to pay over the income thereof to her seven children for life. She further directed as follows: “ All my children to share and share alike and from and after the decease of any of them, my children, the equal share of the principal such child may be entitled to be paid over to and equally among any child or children she or he may have as they arrive at lawful age. Should any of my children die without lawful issue then the share of the child deceased to be held in trust by my executors hereinafter named for the surviving children on the same terms heretofore expressed and the dividend, interest or increase thereof to be paid over equally in the manner heretofore provided for. And on the death of any other child leaving issue the principal of such shall go to and be divided among such issue equally as they may arrive at lawful age. The issue of any of my deceased children to have such share .as the parent would have been entitled to if living.” Held, that the word “ surviving ” as used in the will is to be taken to refer to the children surviving at the time of the death of the testatrix, and not to refer to children surviving at the death of a life tenant.
    Argued Jan. 20, 1904.
    Appeal, No. 200, Jan. T., 1908, by Jane E. Robinson, from decree of O. C. Phila. Co., Jan. T., 1888, No. 120, sustaining exceptions to adjudication in estate of Louisa R. Vance, deceased.
    Before Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to adjudication.
    At the audit before Hanna, P. J., it appeared that Jane Vance died in May, 1863, leaving a will by which she directed, inter alia, as follows:
    “ All the rest, residue arid remainder of my estate, both real and personal, including the proceeds of real estate if any be sold, I give and bequeath to my executors hereinafter named, the principal thereof to be held by them in trust to be invested by them at their entire discretion and the interest, dividend or increase only to be paid to the sole and separate use of each of my children during the term of their natural life, viz., John S. Vance, Samuel B. H. Vance, James M. Vance, Margaretta T. Kirk, Mary Ann Archer, Louisa R. Vance and Jane Eliza Robinson without liability to any debt or obligation of my sons and without liability to any debt or obligation of my daughters or any husband they may have or may have had. All my children to share and share alike and from and after the decease of any of them, my children, the equal share of the principal such child may be entitled to be paid over to and equally among any child or children she or he may have as they arrive at lawful age. Should any of my children die without lawful issue then the share of the child deceased to be held in trust by my executors hereinafter named for the surviving children on the same terms heretofore expressed and the dividend, interest or increase thereof to be paid over equally in the manner heretofore provided for. And on the death of any other child leaving issue the principal of such shall go to and be divided among such issue equally as they may arrive at lawful age. The issue of any of my deceased children to have such share as the parent would have been entitled to if living.”
    Mrs. Kirk died in her mother’s lifetime. At the time of the audit the only survivor was Jane E. Robinson. Louisa R. Vance died on May 31, 1901, unmarried, and without issue, thus leaving her sister Jane E. Robinson the sole survivor of the children of the testatrix. The auditing judge awarded the whole interest of Louisa R. Vance in trust for Mrs. Robinson to the exclusion of the representatives of the other brothers and sisters. Exceptions to the adjudication were sustained in an opinion by Ferguson, J., in which Hanna, P. J., concurred.

      Errors assigned were in sustaining exceptions to adjudication.

      Ruby R. Vale, with him Alexander Magill, for appellant.

      Thomas S. Williams, with him William 0. Eannis, for appellee.
    October 10, 1904:
   Per Curiam,

The opinion of the learned judge of the orphans’ court who passed on and sustained the exceptions to the adjudication of the auditing judge correctly announces the law by which this will must be interpreted. “ A will must be construed so as to avoid a partial intestacy unless the contrary is unavoidable: ” Appeal of Boards of Missions, 91 Pa. 507. If the interpretation placed upon this will by the learned auditing judge should prevail, then should Jane E. Robinson die without issue, the fund for distribution would not be subject to distribution by the will, but would go to the next of kin under the intestate laws.. The interpretation put upon the will by the court below not only avoids intestacy, the result sought by law, but secures equality- of distribution among the children of testatrix. And this is the very substance of the ruling of the present chief justice in Woelpper’s Appeal, 126 Pa. 562, and the other cases cited by appellant.

This correctness of the opinion of the orphans’ court is confirmed by the fact that Auditing Judge Hanna, after it was rendered, concurred in it.

The decree of the orphans’ court is affirmed.


author: Mr. Justice Dean,

text:
    Van Stan’s Stratena Company, Limited, Appellant, v. Van Stan.

      Trade-marks—Name of inventoi—Assignment—Fraud—Imitation of labels and packages.

    Where in a trade-mark bill it appears that the defendant’s father, the inventor of a ware, had assigned to the plaintiff’s assignor the right to manufacture the ware, and use the inventor’s name, and that the son after having been in the employment of the plaintiS for a number of years, withdraws from such employment and proceeds to sell the ware, using his own name and simulating plaintiff’s label, advertisements and trade circulars with intent to deceive the public, the defendant will be restrained by injunction. Under such circumstances the defendant cannot use his own proper name irrespective of the question of fraudulent intent.
    Argued March 24, 1904. Reargued April 27, 1904.
    Appeal, No. 1, Jan. T., 1904, by plaintiff from decree of C. P. No. 2, Pbila. Co., Dec. T., 1899, No. 286, dismissing bill in equity in case of Van Stan’s Stratena Company, Limited, v. Victor F. Van Stan.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Thompson, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned among others was decree dismissing the bill.

      Robert S. Pettet, p. p.

      Erederich J. Knaus, for appellee.
    October 10, 1904:
   Opinion by

Mr. Justice Dean,

This is a bill by plaintiff to restrain defendant from unlawful infringement of its trade-mark. The bill avers that prior to the year 1876, there had been discovered or invented an article of sale or commerce known in trade as “Van Stan’s Stratena Cement,” which in the year 1878 became by purchase and assignment the property of this plaintiff, “ Van Stan’s Stratena Company, Limited,” with the exclusive right, title and interest in the recipe, manufacture, good will, trade-mark and property in said “Van Stan’s Stratena Cement,” since which date, 1878, plaintiff down to this time, has continued to manufacture and offer for sale as well as advertise for sale said cement under said trade-name. That thirteen years after said plaintiff had acquired and had been exclusively using said trademark and after it liad built up a valuable trade in the article under that name, the defendant, Victor F. Van Stan, came to Philadelphia from England and was employed by plaintiff company, in assisting to manufacture, put up and sell the said cement, and consequently had opportunity to learn the business of manufacturing it, the names and places of business of plaintiff’s customers. That he remained in plaintiff’s employment about six years, then left and set up in business for himself; then commenced to manufacture and put on the market an article named and advertised an Van Stan’s Improved Cement ; ” that his wrappers have printed thereon imitations of plaintiff’s trade-mark, and the bottles have blown thereon the words “Van Stan’s Cement;” that in many other ways and by other devices he endeavors to imitate plaintiff’s trade-mark and deceive purchasers and the public and succeeds in so deceiving them; that the article manufactured by defendant is an inferior one, and therefore plaintiff’s business by his wrongful acts is prejudiced and injured. Plaintiff prays that defendant be enjoined from appropriating and using its trade-mark.

The answer either admits or does not deny many of the material facts averred in plaintiff’s bill; he does deny any imitation of plaintiff’s label or trade-mark except the use of the proper name Van Stan, which he claims is his own, given him by his parents and which therefore he claims he has a right to use ; he further denies any intent to fraudulently copy, counterfeit or simulate plaintiff’s trade-mark or label. The court below after hearing much evidence, in both its findings of facts and conclusions of law decided against plaintiff and dismissed its bill. From that decree comes this appeal.

This plaintiff, as in most cases where a party undertakes to act as his own counselor and attorney, however good a case he may have, fails to present properly its merits to either the trial or appellate court. In a paper-book of nearly 200 pages appellant here has, to use the most expressive word, made a “ mess ” of it, but after argument and after reargument, and arranging and classifying the abundance of material we are enabled to arrive at a satisfactory conclusion, as to both fact and law. This imposed a large amount of drudgery upon us, for the learned judge of the court below was content with a bare finding of the facts and six meagre conclusions of law. Then- a pro-forma final decree was made, we suppose to enable the plaintiff to reach this court, by another judge who did not sit in the cause nor hear the evidence or argument. But the importance of the case to the parties demands that we should carefully and fully consider it, notwithstanding its slovenly presentation. We take first, the three statements of the learned judge, termed by him conclusions of law, though the last two of them are clearly findings of fact, for on these in our view of the evidence the decree turns :

“1. Victor F. Van Stan has a legal right to use his name in connection with the manufacture and sale of cement.

“ 4. There has not been shown any fraud or fraudulent intent on the part of defendant to deceive the public into the belief that his wares were or are those of complainant. Upon this question, the fact that defendant upon all his bottles and advertisements used his full name ‘ Victor F. Van Stan or V. F. Van Stan ’ instead of the general ‘Van Stan ’ of the plaintiff, has some significance.

“ 5. There is no such similarity between the wares of the plaintiff and those of the defendant as would be likely to deceive an ordinary purchaser using ordinary caution.”

Whether the defendant has a legal right to use his own name in connection with the manufacture and sale of cement, as it was used here, will depend, not alone on the fact that it was his own proper name, but what answers from the evidence should be given to the fourth and fifth conclusions of law. Was there a fraudulent intent in so using it, and was there such similarity in the wares as was likely to deceive an ordinary purchaser ? To answer these questions we must turn to the undisputed and established facts as well as to the admissions in the answer filed.

Notice the facts in narrative: Frederick Van Stan lived in England ; he there had discovered a peculiar combination of substances entering into the make-up of cement and for years prior to 1876 manufactured and sold there, to the public, his combination under the name of Van Stan’s Stratena Company cement; on the first day of July of that year he formally transferred a right to John A. Keenan of Philadelphia; the transfer is in writing and recites that for a valuable consideration Frederick Van Stan transfers “All his right, title, interest, name and trade-mark, with the recipe' and privilege of manufacturing the same, known and now used and which has hitherto been sold by me, as Van Stan’s Stratena Cement, giving the said John Keenan the sole right to manufacture and sell the said article and to use my name and trade-mark in the sale of the same in the United States.” The present plaintiff company was duly organized under the general act of this commonwealth of 1874 and to it has passed by regular transfer all the rights which passed to Keenan by the formal transfer of the original Van Stan in 1876, and the plaintiff or its predecessors in title or right have down to this time continued to manufacture, advertise and sell the article under the name of Van Stan’s Stratena Cement, or as Van Stan’s Cement. Now notice the defendant’s Victor F. Van Stan’s- connection with the case. He is a son of Frederick Van Stan, the inventor and original owner of the cement; he worked with his father some years in England before coming to this country, and there was taught by him the secrets of its manufacture and how to prepare and sell it; he was also a partner in his father’s firm which prepared and sold the article in the year 1876, the date the father made the formal transfer to Keenan. In the year 1889 Victor came from England to Philadelphia, called at the establishment of plaintiff with an introductory letter from his father, was very needy and was assisted pecuniarily by plaintiff; some months afterwards was given permanent employment in which he remained for five or six years; during this time he became thoroughly acquainted with his employer’s patrons, and customers, not only in Philadelphia but throughout the United States; knew all the details of their methods of doing business; almost the entire business was at times entrusted to him; at the end of that time he quit the employment and went back to England where he remained several months and while there conducted a cement sale stand on a street corner in London; he then returned to Philadelphia, again sought employment from plaintiff and on being refused, declared that his father had been robbed, meaning by the transfer, of his right in 1876, and declared he would start an opposition to plaintiff.

Soon after plaintiff discovered h& was selling to purchasers an article labeled by him, “ Victor F. Van Stan’s Cementine ” was also advertising it in journals, at times using the name “Van Stan’s Improved Cement.” The words “Van Stan’s Cement ” are conspicuous in defendant’s cards and labels, while the word “ improved ” is in small letters and inconspicuous. The labels at a glance appear to be the same ; only by a close inspection is the difference noticeable; the general appearance of the printing on the labels and wrappers, the letters on the bottles strongly resemble plaintiff’s and the shape and size of the bottles are much the same. But a letter of his to a customer of plaintiff shows conclusively the extent of his representation ; he says: “ I am informed that some time ago one B. S. Pettet, trading as ‘ The Van Stan’s Stratena Company,’ issued a bogus legal notice circular to the trade. As I am the only Van Stan now in the cement business, this is undoubtedly a libelous attack on me.” By plain implication defendant here asserts the exclusive right to manufacture the cement and - denies plaintiff’s right. Then in a circular to druggists and the trade, advertising his cement, he declares that his cement “ Is manufactured by the son of the original Van Stan who exhibited at the Centennial Exhibition of 1876.” Numerous specimens of the circulars, labels and trade-marks are here before us in the paper-books; an inspection of them in connection with the evidence, not only plainly shows that the defendant’s cement was not only calculated to mislead and deceive the public, but that in many instances it did actually deceive. The evidence further clearly shows that defendant intended to so mislead and deceive. If defendant simulated plaintiff’s name, labels, advertisements and trade circulars with intent to deceive the public he committed a wrong on plaintiff which equity is bound to enjoin. ' •

It is not from any single fact that the intention to simulate plaintiff’s trade-mark is made apparent, but from all of them viewed together in connection with his conduct. The exclusive right of plaintiff to the use of “ Van Stan’s Stratena Cement ” is established beyond question, in fact in the trial in the court below is conceded. The name “Van Stan” is odd, unique; for a quarter of a century, so far as known, plaintiff had enjoyed the exclusive use of it as a trade-mark; it had spent many thousands of dollars in introducing it to the public by advertisement and otherwise; it does not follow that defendant had the right to offer for sale a cement with his proper name appended, irrespective of the question of fraudulent intent. Victor F. Van Stan was a partner with his father in England in 1876 when the father transferred to Keenan the exclusive right to use the name as a trade-mark in the United States ; then afterwards Victor consummated the transfer by a delivery of another paper confirming the right evidenced by the first transfer. In Russia Cement Co. v. Le Page, 17 N. E. Repr. 304, the Supreme Court of Massachusetts says: “ It is also true one may so sell or part with the right to use his own name, as a description or designation of- a manufactured article as to deprive himself of the right to use it as such and confer the right upon another.” To the same effect are Fish Bros. Wagon Co. v. La Belle Wagon Works, 52 N. W. Repr. 595, Stonebraker v. Stonebraker, 33 Md. 252; Holmes, Booth & Haydens v. Holmes, Booth & Atwood Mfg. Co., 37 Conn. 278, and many other cases. Here the transfer by the father of a partnership asset, in effect joined in by the son, precluded the son from afterwards using the name to the injury of the purchaser although the name he now attempts to use is his own proper name.

But assuming that he had a technical right to use his own name, he clearly had no right to use it to deceive the public, for such use would be a fraud upon the clear right of the purchasers of the trade-mark. That he intended to and did deceive we have already declared, is manifest from the evidence. It must be noticed that both cements were put up in small ten cent bottles, similar in size, name of proprietor, similar in handwriting or script on label, both manufactured in the same city a few doors apart. It is wholly improbable that the public will make a close inspection of such a small cheap article. As was said in Crucible Co. v. Guggenheim, 7 Phila. 408, where the subject of litigation was small packages of stove polish, “ It is true wholesale dealers may generally understand the difference between the two articles, but the small retail dealers scattered over the world do not so understand this distinction, and if they did might not regard it much less their customers.”

We think under the facts here disclosed:

1. Defendant had not the right to use his own name or description as a trade-mark of the cement manufactured and offered for sale bjr him.

2. There has been shown a fraudulent use of plaintiff’s trade-mark in advertising and selling his cement.

8. There is such similarity between the wares of plaintiff and those offered for sale by defendant as would be likely to deceive the ordinary purchaser.

As to the exceptions filed by defendant to neglect by plaintiff to conform to rule of court, in filing and service of paper-book, the circumstances were such that he is not blamable. The judge who heard the evidence and argument resigned his office before final decree; within a reasonable time afterwards plaintiff had a formal decree entered by another judge and as soon as he could do so thereafter printed and served his paper-book, therefore, the motion to quash is overruled.

And further the decree of the court below is reversed and plaintiff’s bill is reinstated.

It is further directed that the defendant pay the costs.

And now October 10, 1904, upon due consideration it is ordered and decreed that defendant, his agents and servants be perpetually enjoined and restrained from selling or offering for sale directly or indirectly any article of cement in bottles of clear glass with labels or wrappers or drawings thereon simulating plaintiff’s trade-mark or copies or imitations of plaintiff’s trade-name, and using the name “Van Stan’s Cement” in labeling, advertising and exposing defendant’s cement for sale. And further that defendant account for in the court below any profits made by him in the wrongful use as herein set out of said plaintiff’s trade-mark.


text:
    Alexander, Appellant, v. Nanticoke Light Company.

      Negligence—Electricity—Electric light company—Standard of care—Evi-! dence—Presumption.

    Where a person on his own premises handles an electric lamp furnished to him by an electric light company for the very purpose of being handled as a means of getting light, the high standard of duty required of the company is that it must, in the operation of its plant, protect its patrons from the perilous current which is the basis of its business b'y doing all that human care, skill and vigilance can suggest.
    Where a patron of an electric light company without knowledge that the wires on his premises are charged with a higher voltage than is safe, takes into his hand an electrical lamp and is severely shocked and injured, the presumption is that the company was negligent and the doctrine of res ipsa loquitur applies.
    Argued April 15, 1903. Reargued April 11, 1904.
    Appeal, No. 93, Jan. T., 1903, by plaintiff, from Order of C. P. Luzerne Co., Jan. T., 1900, No. 12, refusing to strike off non-suit, in case of Eugene N. Alexander v. The Nanticoke Light Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Ferris, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was the order of the court.

      Edmund Gf. Butler, with him II. A. Fuller, for appellant.
    The circumstances of the accident raised the presumption of negligence on the part of the defendant: Fitzgerald v. Edison Co., 200 Pa. 540 ; Devlin v. Beacon Light Co., 198 Pa. 583.
    A higher degree of care and diligence is required in dealing with a dangerous agency than in ordinary affairs of life or business: Heh v. Gas Co., 201 Pa. 443; Com. v. Light & Power Co., 145 Pa. 105; Stoughton v. Nat. Gas Co., 159 Pa. 64; Mooney v. Luzerne Boro., 186 Pa. 161; Alton Ry. &
      Illum. Co. v. Foulds, 81 Ill. App. 322 ; Oil Co. v. Torpedo Co., 190 Pa. 350.

      James L. Morris, with him Woodward, Darling Woodward, for appellee.
    This is a case in which there did not exist between the defendant company and the injured person a relation imposing upon it an absolute duty, an obligation amounting to that of an insurer: Smith v. East End Electric Light Co., 198 Pa. 19; Fitzgerald v. Edison Co., 200 Pa. 540.
    Plaintiff must prove by affirmative and direct evidence the particular negligence that caused the accident claimed to have occasioned the injuries and that the cause of the accident was one for which the defendant was liable: Whitaker v. Delaware & Hudson Canal Co., 87 Pa. 34; Goshorn v. Smith, 92 Pa. 435; Huey v. Gahlenbeck, 121 Pa. 238; Reese v. Clark, 146 Pa. 465; Mixter v. Imperial Coal Co., 152 Pa. 395; Reese v. Hershey, 163 Pa. 253; Bruner v. Blaisdell, 170 Pa. 25; Wojciechowski v. Spreckels’ Sugar Refining Co., 177 Pa. 57; Davidson v. Humes, 188 Pa. 335; Baran v. Reading Iron Co., 202 Pa. 274.
    The existence of a contractual relation between the plaintiff and the defendant company did not change the status of the parties, nor do away with the necessity of proving defendant’s negligence by direct and affirmative evidence : Leidy v. Quaker City Cold Storage Co., 180 Pa. 323; Davidson v. Humes, 188 Pa. 335.
    The doctrine of res ipso loquitur applies where under the circumstances shown the accident presumably would not have happened if due care had been exercised: Todd v. Traction Co., 192 Pa. 587; Stearns v. Ontario Spinning Co., 184 Pa. 519 ; Oil Co. v. Torpedo Co., 190 Pa. 350.
    October 10, 1904 :
   Opinion by

Mr. Justice Brown,

The premises of the appellant, the proprietor of a china store, in the borough of Nanticoke, were lighted by electricity. The electric light was furnished by the appellee, an electric light company. It had wired the store and cellar of the plaintiff, furnished the electric lamps and made and maintained the connections. On the evening of August 19, 1898, he went into his cellar to show goods to a customer, and, while handling, in the usual way, an ordinary incandescent light bulb, suspended from the ceiling by a flexible extension cord, was severely shocked and seriously injured. From the facts submitted, it appeared that when he was shocked the electric wires on his premises were charged with a higher voltage than they should have carried, but the cause of this was not shown to have been any specific negligence of the defendant. Four theories were advanced as to what the negligence was and four possible causes assigned for the accident. The learned trial judge, having been of opinion that the doctrine of res ipsa loquitur did not apply, and that the burden of showing affirmatively the cause of the accident was upon the plaintiff, directed the entry of a nonsuit and refused to take it off, for the reason that, as plaintiff had not shown the cause of the accident, the jury would have had to guess at it, if the case had been submitted to them.

Though electricity is the most powerful and dangerous element known to science, it has become part of the commercial, industrial, business and domestic life of the world, working the wonders of the age. It can neither be seen nor heard and is as deadly as it is invisible and silent; but, though such are its qualities, the same science that discovered it can control it in the endless variety of uses to which it has been put; and neither death nor danger need be encountered from it, if properly guarded against by those whose duty it is to have it safely conducted to the points at which it becomes only a useful and harmless agency.

The appellee was incorporated for the purpose of furnishing light by electricity to the public and individuals in the borough of Nanticoke. It entered into a contract with the appellant to furnish him with such light, and part of its contract—the implied part—was that it would do so safely. Apart from any representation by the superintendent, rvho assured him, according to his testimony, that the electric light would be perfectly harmless, as there “ was not power enough in it to kill a mosquito,” it was the implied contract between the appellant and the company that it would supply his premises with a safe electric current for lighting them by lamps which it furnished. By this it is not to be understood that the company became an insurer to its patron against all danger in the use of its electrical appliances on his premises, but simply that it liad contracted with him to protect him from injury by exercising the highest degree of care, skill and diligence in the construction and maintenance of its plant and appliances. In Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540, in which a painter who went upon the roof of a house in the lawful exercise of his business, and was killed by coming into contact with a defectively insulated wire, we said, through the present chief justice: “ Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case. The company, however, which uses such a dangerous agent is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them. The defendant, in accord with the common practice of electric companies, recognized this obligation by insulating its dangerous wire. But the duty is not only to make the wire safe by proper insulation, but to keep it so by constant oversight and repair.” That it is the imperative duty of an electric light company to perfectly insulate its wires at all points where persons have a right to be, on business or pleasure, and to use the utmost care to keep the insulation perfect, has been repeatedly held in other jurisdictions. Among the cases announcing this rule are, Schweitzer v. Citizens’ Electric Co., 52 S. W. Repr. 830; McLaughlin v. Louisville Electric Light Co., 100 Ky. 173; Geismann v. Missouri-Edison Electric Co., 173 Mo. 654; Lexington Railway Co. v. Fain, 71 S. W. Repr. 628, Court of Appeals of Kentucky. But when, as here, one on his own premises handles an electric lamp furnished to him by an electric light company for the very purpose of being handled as a means of getting light, the high standard of duty required of the company is that it must, in the operation of its plant, protect its patrons from the perilous current which is the basis of its business by doing all that human care, skill and vigilance can suggest.

When the foregoing rule is observed 'by an electric light company, the presumption is that no such injury will befall its patrons as was sustained by the present appellant; but, on the other hand, when such injury does occur, the presumption is that the rule had been disregarded. This is manifestly reasonable, for it is within the common knowledge of mankind, and, therefore, a matter of judicial notice, that electricity can be safely conducted and used as an agent for the production of light, heat or power. The rule on this subject is nowhere more clearly stated than in Scott v. London, etc., Dock Co., 3 Hurl. & C. 596 : “ Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanations by the defendants, that the accident arose from want of care.”

To say that one injured as the appellant was cannot recover unless he affirmatively proves, in the first instance, the specific act of negligence of the company which caused the injury, would, in many cases, be a denial of a right to recover at all, no matter how negligent the company might be. Against patent dangers, or against those as to which he may have been warned, the user of electricity must of course guard himself, and, if he dallies with them, taking hold, by way of illustration, of an appliance emitting sparks, or handling an uninsulated wire after having been warned not to do so, he voluntarily places himself in peril and cannot recover, if injured; but when, as here, no danger was seen, and there was no reason to think it was lurking in the company’s appliances, its patron took the lamp in his hand and was severely shocked and injured, the only reasonable presumption instantly is that something was wrong over which the company had exclusive control. The user of electricity, though having knowledge of its dangerous character, has no knowledge of how this danger can be controlled. He relies upon the company to control it, and, when this appellant took the lamp in his hand, he had a right to do so without a thought that it had not been controlled. What did he know of what it was necessary for the company to do, as a dealer in electricity, to protect its customers from the danger of its commodity ? He is not presumed to know anything. As a rule, the man who takes in his hand an electric lamp or telephone receiver, starts an electric fan or uses any other appliance which he has a right to use under his contract with an electric company, is helpless if the invisible and dangerous current has not been properly controlled by the company’s officers and employees, who are conclusively presumed to know how to control it.

One of the cases cited by appellant in support of his contention that there was a presumption of appellee’s negligence, which it was bound to rebut, is Alton Railway and Illuminating Co. v. Foulds, 81 Ill. App. Ct. Rep. 322. There the wife of the plaintiff below went into a cellar to turn on an electric light, and, on taking hold of the lamp, received a shock and was killed. At the trial the plaintiff did not show by any specific evidence how the increased voltage that caused his wife’s death had got on the wire. In affirming the judgment on the verdict in his favor, the court said: “ When appellant wired the basement or cellar of appellee’s house, and agreed to furnish him light for hire, it well knew it was dealing in an element that, delivered in a current of high voltage, such as was carried on its primary wires, was almost certain to bring death to the person who turned on the lamp, if there was a ground of the current on the circuit; hence, the law imposes upon it the duty to exercise a high degree of care and skill in the delivery of the element it had contracted for. If the injury itself furnishes a presumption of negligence so as to require the defendant to show, by evidence, that it has been guilty of no negligence that caused it, then it logically follows that all that is necessary to be averred in the declaration to entitle the plaintiff to recover is the agreement, a negligent breach of it, and the result; also that the plaintiff has not by any neglect on his part contributed to the result.” There are a number of cases upon which the appellant could place greater reliance as to the high degree of care required of an electric light company and as to the presumption of negligence in case of injury to its patrons in the ordinary use of its appliances; but reference will be made to only two of them.

In Denver Consolidated Electric Co. v. Lawrence, 73 Pac. Repr. 39, Supreme Court of Colorado, which, was an action against the company for injuries caused by an electric shock to plaintiff while turning on a light in his home, in holding that it was proper to charge that the plaintiff was not required to point out the specific negligence which caused the accident, the court said: “Ordinarily the allegations of duty and a breach thereof are not sufficient; but if the duty results from the facts stated, then the allegations of duty may be discarded as surplusage, and the complaint held to be sufficient. If the allegations of the complaint concerning the relationship of the parties and the character of the injuries received make out a prima facie case of liability, then the complaint is good as against a general demurrer. We think the complaint does, from the very character of the accident as set forth therein, call upon the defendant to make defense to the case of negligence, in supplying electricity to the residence, which the' facts as charged make out. The business of the defendant is that of selling electricity to the people of Denver—a business so fraught with peril to the public that the highest degree of care which skill and foresight can obtain, consistent with the practical conduct of its affairs under the known methods and present state of its particular art, is demanded: Denver Consolidated Electric Co. v. Simpson, 21 Colo. 371 (41 Pac. Repr. 499).

“The plaintiff, while attempting to do that which every patron of the company must do to make use of the electric light, received into his body a current of electricity, burning his hands and feet and permanently injuring him. Such injuries are not, under ordinary circumstances, received by persons who turn on an incandescent lamp, if the company supplying the current has not been negligent. The defendant, when it contracted with the father of the plaintiff to sell electricity for light, contracted to keep its plant and appliances in such condition that no greater volume of electricity would be carried into the house than was necessary for its proper lighting. The quantity of electricity required for lighting purposes in residences is not sufficient, if it pass through the body, to cause the injuries described by the plaintiff in his complaint. It follows, therefore, that the plaintiff must have received a very much greater quantity of electricity than the company contracted to supply. The court, therefore, did. not err in overruling the demurrer to the complaint, nor in overruling the objections to the introduction of testimony.

“ The company insists that it is not an insurer, and that its obligation is that of using ordinary care. We are not prepared to say that it is an insurer, but the patrons of the company have the right to presume that they will not be injured in attempting to use that which the company sells, and that it will do all that human care, vigilance, and foresight can reasonably do, consistent with the practical operation of its plant, to protect those who use its electric light.”

The other case is Royal Electric Co. v. Heve, Rapports Judiciares de Quebec, 11 Banc Roi, 436. The facts in that case are singularly analogous to those in the present one; and there as here, on the trial, different theories were advanced as to the specific negligence of the company which caused the injury. One was accepted by the court below as correct, but the appellate court thought another more probable.. The case, however, was disposed of without regard to either, Hall, J., delivering the judgment of the Court of King’s Bench, saying: “ But in my opinion, it is a matter of indifference, legally speaking, where this current originated. The appellants should be held responsible for it under any circumstances. They deal in a commodity of a recognized dangerous character, the control of which is a matter of technical knowledge and experience, and entirely uncomprehended by the general public. When a company like the appellants, organized under the name of an electric company, hold themselves out to the public as dealers in and suppliers of that commodity, for gain, and make contracts with private individuals for furnishing light or power over a system constructed and controlled by themselves, they are bound to deliver it in a form and under conditions of safety for the person and property for whose use the company charge and receive compensation, and they are also bound, in the discharge of their part of the contract, to a supervision and diligence proportionate to the peculiar character and danger of the commodity in which they deal.

“ In the case under consideration, the electric company not only had stipulated but had exercised the right of supervision of their system within the premises of the deceased. As to that portion of the system outside of his premises no one but their own employees had even the right of examination or interference. If their transformer was defective, or could become dangerous from the moisture of an ordinary rainstorm, it was their business to have discovered and removed the cause of danger. If their system of wiring came within an inch of the wire of another company—even if on a dead wire—common prudence would have suggested their interference, either by a protest against the other company or by the removal of their own wires, while it is in evidence that the proximity of the two systems had existed for months prior to this accident. The fact that guy wires become, from accident, live wires of the most dangerous character, is one, unfortunately, of too frequent occurrence to be overlooked or ignored in the exercise of the constant supervision which an electric system exacts, and which the public has the right to enforce.

“ The implied contract between the appellants and deceased was that they should supply his premises with a safe electrical current for lighting purposes by the lamps which they furnished. They failed in this respect, and in the use of their lamp he received a current of electricity by which he was instantaneously killed. The presumption is that it came over the same system and from the same source as that by which his ordinary supply was delivered to him by appellants. The burden of proof is upon them to show the contrary. This they have failed to do, and the judgment holding them responsible for the accident should be confirmed.” To these utterances reason responds, and they must, therefore, be the law.

The presumption that the appellee was negligent is not conclusive. The accident may have been due to causes over which it had no control, and, if so, not being an insurer, it is not liable. But the presumption is that it was blamable, and it can escape liability for appellant’s serious injury only by persuading a jury that it had performed its duties as we have here defined them.

As the burden was upon the defendant to show that it had not been negligent, the last assignment of error is sustained. The rest need not be considered.

Judgment reversed and procedendo awarded.

       Also reported 37 S. W. Repr. 851.

       Also reported 73 S. W. Repr. 654.—Reporter.


text:
    Crowe, Appellant, v. Nanticoke Light Company.

      Negligence—Electric light companies—Evidence—Presumption.

    Where the patron of an electric light company is shocked to death while using an electric lamp furnished by the company, a presumption arises that the company was negligent.
    In an action for the death it is error for the court to charge that the company was not bound to have an equipment or plant containing the most modern and recent appliances, but only such as were in common and general use at that time for like purposes.

      Negligence—Electric light companies—Lease—Death.

    In an action against an electric light company to recover damages for the death of plaintiff’s husband, it appeared that about two months prior to the death of the deceased, the company leased its property to another company, but the lease was not recorded until over a year and a half after its execution. The plaintiff knew nothing of the lease until the statutory period within which she was bound to bring her action had expired. There was evidence that in the very month of the accident the defendant company upon notification by another customer had remedied- electrical disturbances, and that bills for light furnished after the accident had been paid by plaintiff to a clerk at the defendant’s office, and that the clerk had receipted for the payments in defendant’s name. Held, that the question of defendant’s liability was for the jury.
    Argued April 15, 1903. Reargued April 11, 1904.

    Appeal, No. 94, Jan. T., 1903, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1899, No. 759, on verdict for defendant, in case of Annie Crowe v. Nanticoke Light Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Wheaton, J.
    See Alexander v. Nanticoke Light Co., ante, p. 571 and Crowe v. Nanticoke Light Co., 206 Pa. 374.
    Verdict and judgment for defendant.

      Errors assigned were various instructions.

      Edmund G-. Butler, for appellant.

      James L. Morris and John M. Garman, for appellee.
    October 10, 1904 :

      See Crowe v. Nanticoke Light Co., 206 Pa. 374. After the decision there reported the Supreme Court ordered a reargument of its own motion.—Reporter.

   Opinion by

Mr. Justice Brown,

On the evening of August 19, 1898, the same time that the appellant in the preceding case was injured, the husband of this appellant was shocked to death while using an incandescent light furnished by the same company, the present appellee. The case was taken from the jury by the learned trial judge and a verdict directed for the defendant. In his charge he instructed them that the burden was upon the plaintiff of proving the specific negligence of the defendant which caused the death of her husband, and stated that it was not bound to have “ an equipment or plant containing the most modern and recent appliances, but only such as were in common and general use at that time for like purposes.” In these instructions there was error, as appears from what we have said in the former case, and need not repeat here, as to the burden of proof and the very high degree of care, skill and diligence required of the light company in the construction and maintenance of its plant and appliances for the purpose of furnishing light to its customers.

The court was further of opinion that the People’s Electric Light, Heat and Power Company, as lessee of the appellee, was liable to the plaintiff, if there was any negligence that caused her husband’s death, and the instruction to the jury in directing a verdict for the defendant was that the lessor was not liable for the wrongful acts of its lessee. As a general proposition, this was undoubtedly correct, but, under the evidence showing that the contract of the deceased at the time he was killed was still with the appellee to furnish him light; that in the very month of his death that company, upon notification by another customer of electrical disturbances, had remedied them temporarily; and that bills for light furnished in August, October and November, 1898, had been received by the appellant from the appellee, made out to her as the debtor to it as the creditor, payments for which were made by her at its office to its clerk, who receipted for the payments in its name, it was not for the court, but for the jury, to say whether the appellee could shelter itself under a lease bearing date June 28, 1898, but which was not recorded until January 10, 1900, of •which the deceased knew nothing and of which the plaintiff had no notice until the statutory period within which she was bound to bring her action had expired. The eleventh, twelfth, thirteenth and fourteenth assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.


text:
    Coward v. Llewellyn, Appellant.

      Equity—Remedy at law—Ejectment—Street—Dedication—User. ■
    A bill in equity cannot be maintained to compel the defendants to remove valuable buildings claimed by the plaintiffs to have been built over ten feet of an alleged thirty feet wide street, where it appears that although the defendants’ predecessors in title had dedicated a street twenty feet wide, and the public had used the additional width of ten feet for nine or ten years, the evidence is not clear as to whether there had ever been any intention to dedicate the additional ten feet to public.use. In such a case title to the land in dispute must be determined at law before a court of equity can interfere.
    In the absence of proof of an intention to dedicate land to public use as a street, the public can acquire no right to the land, except by uniform, adverse and continuous use under claim of right for twenty-one years.
    Argued April 12, 1904.
    Appeal, No. 192, Jan. T., 1908, by defendants, from decree of C. P. Luzerne Co., Feb. T., 1901, No. 4, on bill in equity in case of Thomas R. Coward et al. v. George J. Llewellyn.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Reversed.
    Bill in equity for an injunction. Before Little, J., specially presiding.
    The opinion of the Supreme Court states the case.
    The court entered the following decree:
    Now July 7,1903, this cause came on to be heard and was argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed as follows, to wit :
    1. That the defendants be restrained by perpetual injunction from obstructing, and the defendant, the borough of West Pittston, from permitting to be obstructed, an alie}' in the borough of West Pittston, running from Luzerne avenue a distance of about 197 feet to its intersection with another alley, and known as Blackman’s alley, said alley being thirty feet in width and its northerly or westerly line being described as beginning at a corner of Luzerne avenue 288 feet from Susquehanna avenue, and thence north thirty-four and one half degrees east about 197 feet to its intersection with another alley.
    2. That the defendants, within thirty days from this date, remove the one story structure used as a barber shop, the coal house, out house, addition to a stable, and other structures erected or maintained by them within the line of said thirty foot alley, in front of their respective properties abutting on said alley.
    3. That the prothonotary issue a writ of mandatory injunction to carry this decree into effect.

      Error assigned was the decree of the court.

      Greorge II. Troutman, with him John T. Lenahan and Edward A. Lynch, for appellants.
    The title to the land in controversy should be determined by a jury: Com. v. Llewellyn, 14 Pa. Superior Ct. 214; Edgett v. Douglass, 144 Pa. 95.
    A chancellor does not interfere by way of mandatory injunction, even though the injury be clearly established, where there has been long continued delay in asserting the right, and a remedy exists at law: Orne v. Frindenberg, 143 Pa. 487; Washington Female Seminary v. Washington Boro., 18 Pa. Superior Ct. 555; Com. v. Royce, 152 Pa. 88.
    The appellees havé a full and adequate remedy at law: Morris v. Phila., 199 Pa. 357; Wetherill v. Penna. R. R. Co., 195 Pa. 156; White v. McKeesport Boro., 101 Pa. 394.
    A public nuisance cannot be suppressed or enjoined at the suit of a private individual unless he has sustained some damage or injury which is clearly special to himself, and apart from that which the general public has sustained: Rhymer v. Fretz, 206 Pa. 230.

      J. B. Woockoard, with him Rush Trescott, for appellee.
    The court had jurisdiction: Bunnell’s App., 69 Pa. 59; Jennings Bros. & Co. v. Beale, 158 Pa. 283 ; Walters v. McElroy, 151 Pa. 549.

      October 10, 1904:
   Opinion by

Mr. Justice Dean,

The decree in this case turns on the fact, whether Black-man’s alley in the borough of West Pittston is thirty feet wide or only twenty feet.

Theodore Strong in 1850 became the owner of ninety acres of land adjoining West Pittston borough, which he soon after conveyed to the West Pittston Land Association, a land improvement company. This company in 1856 plotted the land in streets and alleys; one of the alleys known as Blackman’s alley was on the plan twenty feet wide. Subsequently this land was all incorporated with and formed a part of the borough. No official map of the borough was formally adopted or recorded. A map had been made by McKinney and Bonwell and this was hung in the room of the borough council where it remains; on this map Blackman’s alley is marked twenty feet wide and corresponds in plotting with the general plan of the streets and allej^s of the borough. In 1860, R. J. Wisner obtained by purchase from the land association a triangular piece of land in the borough, part of the original ninety acres which included Blackman’s alley. He, Wisner, opened up the alley, which up to that time, had only been plotted on the McKinney and Bonwell map as twenty feet. Appellees claim that he opened it thirty feet wide and for that width dedicated it to public use; that from that time, for that width, until appellants obstructed it with their buildings it has been used by the public without interruption as a public highway. We think, taking into view the facts, that although not yet opened, the alley was already plotted on the plans of the land association and on the McKinney and Bonwell map, at the time Wisner took possession, as only twenty feet wide, the burden was on plaintiffs in the court below to show that the width was changed by Wisner from twenty feet to thirty.

In reviewing the testimony, the court below in finding the facts had but little the advantage of us in considering it, for it is mainly documentary and where it is not, the statements of witnesses are for the most part not at variance, although those of Wisner as testified to may have been; different inferences may be reasonably drawn from their statements, but otherwise they are not irreconcilable. It is conceded that the alley was never formally laid out, opened or its width fixed by municipal ordinance. If its width were ever fixed by a dedication to public use, it must have been done by Wisner after he became the owner, or by his executors after his death and that is a pure question of fact, which must be first established at law before a court of equity will take jurisdiction and order the removal of valuable improvements because they encroach on the alley. The public acquired no right to a thirty foot alley by adverse user alone, for its use by the public had only existed for nine or ten years. This, as the court below correctly held, is not long enough. “ The use which will establish such a right (of public user and implied dedication) must be defined, uniform, adverse and under claim of right and must have continued for twenty-one years; a rambling use, sometimes by one path and sometimes by another will not suffice : ” Arnold v. Cornman, 50 Pa. 366. And as is said by our present chief justice in Commonwealth v. P. & R. Railroad Co., 135 Pa. 256, “ Dedication is a matter of intention. Where there is no opposing proof, long-continued use by the public is evidence of an intent to dedicate, but it is by no means conclusive and always yields to contrary proof of a satisfactory character'.” But it is just as well settled that where the evidence shows an intention to dedicate a user much short of twenty-one years will suffice to establish a public right.

' It is very clear from the maps and other documentary evidence, that Wisner and his executors did dedicate a twenty foot alley, but whether an additional ten feet was dedicated at the point in dispute is not clear. Th§ plaintiffs and defendants both own lots nearly opposite each other on Blackman’s alley; both trace title to Wisner who had a right to fix the width of the alley; the appellants if the appellees are correct in their averment, that it is thirty feet wide, under their deeds have taken and now hold possession of ten feet of it; if the alley be only twenty feet wide, then appellants are in possession of land within the boundaries fixed by their deeds. Quite a number of witnesses testified to Wisner’s declaration that the alley was only twenty feet wide ; that he had left ten feet outside his fence merely to have room for a storage yard at his foundry, and other evidence was adduced tending to negative a dedication for public use of more than twenty feet and that any use exceeding that width was merely permissive. There was also affirmative evidence by appellees that Wisner, as well as his executors after his death, had dedicated a width of thirty feet. If Wisner had not lost the ten feet of land by a prior dedication followed by a public user it was his to conve}1-, and to devise to his executors ; conveyance by either would put in the purchaser a good right to a twenty foot alley and their buildings are on their own ground. This brings us face to face with appellants’ seventh assignment of error, which is :

The court erred in refusing to dismiss the bill because the remedy if any was by ejectment—at common law.”

We do not see how, under a long line of well settled cases equity at this stage of the dispute could assume jurisdiction and oust appellants of land of which they are in undeniable possession under color of the Wisner title. Speaking by Clank, J., in Washburn’s Appeal, 105 Pa. 480, we said in a case very much like this :

“ The whole contention, as shown by both the pleadings and the proofs, was upon the legal rights and claims of the parties; no irreparable injury was shown, no clear right to the subjects in dispute established, no ground for equitable relief disclosed. Where rights which are legal are asserted on one side, and denied on the other, the remedies are at law. They cannot be. settled under equity forms ; this is undoubtedly the general rule. In actions respecting real property, therefore, if there be no equitable ground of relief involved, the rights of the parties must be determined at law; when thus determined, or when they are admitted in the pleadings, or otherwise clearly appear, an equity based upon that right, superinduced by the acts of the parties, may be asserted, and a decree for equitable relief made.”

Numerous cases are cited in that opinion, most of them from our own state. It is argued by appellees’ counsel that no question of title between the immediate parties is involved. That is in a certain sense true, for appellees do not assert title; but they do claim the right to an unobstructed passage over a twenty-nine foot alley. Defendants claim title to and are in possession of ten feet of that alley; that they have such title and possession plaintiffs deny and on this fact depends the jurisdiction of the court to eject them, not in equity but at law. And plaintiffs have more than one legal remedy. But as was said by Paxson, J., in City of New Castle v. Raney, 130 Pa. 546: “The authorities uniformly limit the jurisdiction to the cases where the right has first been established at law or is conceded. It was never intended and I do not know of a case in the books, where a chancellor has usurped the functions of a jury and attempted to decide disputed questions of fact.”

There is much that is interesting in the case and the learned judge of the court below gave.it most careful attention, but it would be unjust to both parties if we were to review his findings of facts and conclusions of law when we have no more jurisdiction to do either, than he had in the first hearing.

The decree is reversed and the bill dismissed at costs of appellees without prejudice to them to institute such suit or suits at law to determine their rights as to them may seem proper.


author: Justice Dean,

text:
    Mifflinville Bridge.

      Equity—Road law—Railroads—Grade crossing—Act of June 7, 1901, P. L. 531.
    A bill in equity to regulate the crossing of a highway over a railroad is properly brought, where it appears that there are several distinct parties all necessary to the litigation, whose rights, duties and obligations are not clearly defined. While such a bill is pending, a party defendant therein has no standing to file a petition under the Act of June 7, 1901, P. L. 531, to regulate the crossing.
    Argued April 12, 1904.
    Appeal, No. 269, Jan. T., 1903, by defendant, from order of C. P. Columbia Co., permitting and regulating a grade crossing in matter of Mifflinville Bridge.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Reversed.
    Petition to regulate a crossing of a highway over a railroad under Act of June 7,1901, P. L. 531. See Pennsylvania R. R. Co. v. Bogert, post, p. 589.

      Error assigned was the order permitting and regulating the crossing.

      II. M. Rinehley, with him L. E. Waller, for appellant.

      Ered Heeler, of Heeler Ikeler, with him T. J. Vanderslice, for appellees.
    October 10, 1904:
   Opinion by

Justice Dean,

This appeal is a decree in an issue in the common pleas, on the law side of the court, involving substantially the same facts and law as those on which the issue turned'in No. 270, January term, 1903, in equity. Our opinion on the law and facts is the same in this case as that in which we have handed down opinion this day reversing the decree of the court below.

So far as the record shows, this petition to the common pleas was wholly useless. It was presented in the court below the 19th of September, 1903, while there was then pending on the equity side of the court a bill by the railroad company raising precisely the same questions, filed a month before, which had been served on the supervisors, these appellees.

The inconvenience of the statutory remedy when the rights of so many parties were affected, the difficulty of determining the exact extent of those rights on a petition to the common pleas, moved us to suggest that the appellant adopt the “ more plastic and convenient remedy of a bill in equity.” It adopted our suggestion, filed its bill and respondents made answer, did not demur. Jurisdiction in equity then attached. We are clearly of the opinion now, after a review of the whole case, that our suggestion in view of all the circumstances was a proper one, and this second proceeding at law merely burdened the issue with useless litigation, and that the petition should have been dismissed. The decree of the court below is reversed and petition dismissed at costs of appellees.