author: Mr. Justice Mestrezat, Mitchell, C. J.,

text:
    Commonwealth v. Valverdi, Appellant.

      Criminal law — Election law — Conspiracy—Assessors—Evidence.
    On the trial of an indictment of election assessors for the illegal registration of persons not resident in the district and not qualified voters therein, the commonwealth may, after having established by competent evidence the offense charged in the indictment, show that the defendants also procured to be placed upon the list of voters a large number of persons who were not naturalized and therefore not qualified to vote. For the purpose of throwing light upon the motives and intentions of the defendants, it is competent for the commonwealth to prove all that the latter did at the time of the offense charged in the indictment, in dealing with the same subject-matter, and which contributed to the same specific purpose.

      Criminal law — New trial — Jurors—Reading of newspapers.

    The granting or refusing of a new trial in a criminal case, upon the ground that during the trial jurors have heard improper oral or have read unauthorized statements concerning the case, is a matter within the discretion of the court below, and the conclusion of that court will only be reversed where there is a clear abuse of discretion; and this is particularly so where the publication was merely a correct narration of the incidents of the trial, and did not refer to any previous misconduct of the defendants.

      Criminal law — Conspiracy—Parties—Acquittal of one party.

    It is not necessary for the commonwealth on the trial of an indictment for conspiracy to establish that all the persons charged in the indictment had been guilty of an unlawful conspiracy; if the evidence establishes that any two have been guilty of the conspiracy charge, they may be convicted although all the others are acquitted.
    Mitchell, C. J., dissents.

      Argued March 28, 1907.
    Appeals, Nos. 383 and 384, Jan. T., 1906, by Philip Valverdi and Edward H. Wood, from judgment of Superior Court, Oct. T., 1905, Nos. 165 and 166, affirming judgment of Q. S. Phila. Co., Nov. T., 1904, No. 282, on verdict of guilty in case of Commonwealth v. James McCartney, Philip Valverdi and Edward H. Wood.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from the Superior Court. See 32 Pa. Superior Ct. 241.
    The opinion of the Superior Court, by Porter, J., was as follows:
    The indictment charged the defendants with conspiracy to unlawfully and fraudulently assess and place, and cause and procure to be assessed and placed upon the assessor’s list of voters of the thirteenth election district of the first ward of the city of Philadelphia “the names of a large number of, to wit, fifty and more persons, as voters of said thirteenth election district of the first ward aforesaid who did not reside in the said thirteenth election district of the said first ward and were not then and there qualified to vote therein.” Upon the trial McCartney was acquitted, and Valverdi and Wood were found guilty and have now taken these appeals.
    The first and fourth specifications of error refer to evidence to the admission of which no exception was taken in the court below, ahd for that reason cannot be considered. The defendants took no general exception to the charge of the court, and upon that ground the tenth, eleventh and thirteenth specifications of error are dismissed.
    The commonwealth, having proved that a large number of persons had been assessed and their names placed upon the list of voters of the election district who in fact did not reside in the district and were not qualified voters therein, and that the appellants were.active in causing and procuring the names of such persons to be placed upon said list of voters, introduced evidence which tended to establish that the appellants caused and procured to be placed upon said list of voters the names of a large number of persons who, although they resided in the district, were not qualified to vote therein, because they were foreign born and had never been naturalized, and that the appellants knew that fact. There was no exception taken to the admission of the evidence as to the registration of unnaturalized persons, but the defendants subsequently moved to strike out this evidence and requested the court to charge the jury that they were not to take it into consideration. The court refused to strike out the evidence and declined to charge as requested, which rulings are the foundations of the second, third and seventh specifications of error. These specifications raised but one question : the relevancy of the testimony as to the registration of unnaturalized persons to the issue being tried. The indictment charged a conspiracy to cause the registration, as voters of the district, of persons ivho did not reside in' said district and were not then and there qualified to vote therein. The offense as charged referred only to voters of a particular class, and having thus been limited by the indictment, the burden was upon the commonwealth to establish a conspiracy to cause the unlawful registration of persons who came within the class. Had the evidence been insufficient to justify a finding that there had been a conspiracy to cause an unlawful registration which embraced persons falling within the particular class, the conviction could not be sustained. The commonwealth having proved, however, that the names of a large number of persons who were not residents of the district, and for that reason not voters, had been placed upon the list of voters and that the appellants had been active in causing this to be done, their motives and intentions in so acting became material to the inquiry as to their guilt or innocence of the offense actually charged. "Were they misled by innocent mistakes, or acting in pursuance of a corrupt combination ? For the purpose of throwing light upon their motives and intentions it was competent for the commonwealth to prove all that they did at the time of the offense charged . in the indictment, in dealing with the same subject-matter and which contributed to the same specific purpose.. The evidence in question directly tended to establish that the placing upon the list of voters of the names of persons who did not ' reside in the district was not an innocent mistake, but was but a part of a general scheme, to which the appellants were parties, to cause the registration of a large number of persons who were not voters of the district, and for this reason it was relevant to the issue as to the intentions of the appellants: Commonwealth v. Bell, 166 Pa. 405 ; Goersen v. Commonwealth, 106 Pa. 477; Commonwealth v. Johnson, 133 Pa. 293; Friend v. Hamill, 34 Maryland, 298; Penn Mutual Life Insurance Company v. Mechanics’ Savings Bank & Trust Co., 72 Fed. Repr. 413; Commonwealth v. White, 145 Mass. 392 (14 N. E. Repr. 611); Regina v. Francis, L. R. 2 C. C. R. 128; Blake v. Assurance Society, L. R. 4 C. P. D. 94. The second, third and seventh specifications of .error are dismissed.
    The fifth specification of error refers to the refusal of the court below to grant a new trial, “ in view of the inflammatory, prejudicial and untruthful publications in the newspapers of Philadelphia concerning the trial of the said cause.” The depositions taken in support of the motion for a new trial indicated that a number of the jurors had, during the trial, read newspaper accounts of the proceedings, and that publications in question were offered in evidence in support of the motion. The granting or refusing of a new trial in a criminal case, upon the ground that during the trial jurors have heard improper oral or have read unauthorized printed statements concerning the case, is a matter within the discretion of the court below, and the conclusion of that court will only be reversed where there is a clear abuse of discretion: Alexander v. The Commonwealth, 105 Pa. 1; Commonwealth v. Chauncey, 2 Ashmead, 90; Commonwealth v. Haines, 15 Philadelphia, 363; Commonwealth v. Striepeke, 32 Pa. Superior Ct. 82. We have carefully considered the publications in question and are of opinion that, as the articles did not refer to any previous misconduct of the defendants, or discredit any material witness, or misstate the evidence, it is by no means clear that they could.have affected the verdict. The learned judge of the court below, in his opinion refusing a new trial, referring.to the publications, says: “ They narrate incidents of the trial which had already happened in the presence of, or within the hearing of, the jurors themselves, nor do they make false statements of such incidents.” The matter was one peculiarly within the discretion of the court below, to be conscientiously passed upon in view of all the circumstances surrounding the trial, and we cannot say that the conclusion arrived at involved an abuse of discretion. The fifth specification of error is dismissed, as is also the twelfth for the same reason.
    The sixth specification of error refers to the refusal of the court to arrest the judgment, upon the ground that the acquittal of McCartney, the assessor, is a finding that no crime had been committed by him, and, therefore, the other two defendants could not have conspired with him to commit a crime. Nothing is better settled than that it is not necessary for the commonwealth to establish that all the persons charged in the indictment had been guilty of an unlawful conspiracy. If the evidence establishes that any two have been guilty of the conspiracy charged they may be convicted, although all the others are acquitted. If these appellants conspired to cause to be placed on the list of voters the names of persons who were not residents of the district they were guilty of the offense charged in this indictment, even if the assessor was not a party to the conspiracy and was the victim of the deception of those who were carrying out the purpose of the unlawful combination. The offense charged was one which affected all the people of the commonwealth; its purpose and effect, if successful, was to corrupt a public election, and it was indictable at common law, independently of the provisions of the Act of January 30, 1874, P. L. 31. The sixth specification is dismissed.
    There was evidence which, if believed, warranted the conviction of both the appellants, and the court properly overruled the motion to discharge them, respectively, upon the ground that there was no evidence to connect them with the conspiracy. The eighth and ninth specifications of error are dismissed.
    The judgments in the appeals Nos. 165 and 166, October Term, 1905, are affirmed, and it is ordered that the appellants, Phillip Valverdi and Edward II. Wood, appear in the court below, to the end that they, respectively, be committed to serve such part of their respective sentences as had not been complied with at the time their respective appeals were made a supersedeas.
    There were ho dissenting opinions.

      Errors assigned were (1-13) in dismissing the assignments of error to the quarter sessions, and (14) in affirming the judgment of quarter sessions.

      William W. Porter, with H. A. Maolcey and J. Jos. Murphy, for appellants,
    cited as to the newspaper publications: Rentzheimer v. Bush, 2 Pa. 88; Com. v. Jacques, 1 Pa. Hist. Rep. 287; Hat Trimmings Case, 49 Fed. Repr. 32; Com. v. Johnson, 5 Pa. C. C. Rep. 236; Com. v. Landis, 12 Phila. 576; United States v. Ogden, 10 Pa. Dist. Rep. 1.

      Joseph H. Taulane, assistant district attorney, with him Samuel P. Rotan, district attorney, for appellee.
    April 22, 1907 :
   Opinion by

Mr. Justice Mestrezat,

These are appeals from the judgments of the Superior Court affirming the judgments of the court of quarter sessions of Philadelphia county in which the appellants were convicted of a conspiracy to unlawfully and fraudulently assess and place upon the assessor’s list of voters of the thirteenth election district of the first ward of Philadelphia the names of persons as voters of the district who did not reside in the district and were not qualified to vote therein. The appellants were jointly indicted with one James McCartiiey, the assessor of the district, who was acquitted by the jury.

There is nothing in these appeals which require our special attention. The case was tried with the greatest care by the learned trial judge to whose charge no exception was taken. Numerous points for charge were presented on the trial by counsel for appellants, and all were answered by the court. A motion for a new trial was made for which twelve reasons were assigned. The learned trial court below refused this motion in an exhaustive and convincing opinion in which it reviewed the errors alleged to have occurred on the trial, and supported its legal conclusions by the citation of numerous authorities. Appeals were taken to the Superior Court. There, the cases were presented and heard on thirteen assignments of error which were the same as we have here, except an additional assignment which formally complains of the affirmance of the judgment of the trial court by the Superior Court. There, as here, more than one-half of the assignments were not supported by exceptions taken by appellants in the trial court, and under our uniform rulings were properly dismissed by the Superior Court without consideration. The other assignments were considered in an elaborate opinion by Porter, J., in which he discussed at length the questions raised there and here by the assignments and conclusively shows that they are wholly without merit. The judgment of the trial court was unanimously affirmed by the six judges of the Superior Court who heard the case.

We have considered this record with great care, and we find nothing whatever to justify us in interfering with the judgment of either the trial or Superior Court. Each and every material question presented for our consideration was raised and fully considered by the learned Superior Court, whose opinion amply, justifies its conclusions. If we attempted to support its judgment we would simply be repeating its arguments and the authorities it cites.

The offense charged is a grave one. As said in the opinion of the Superior Court, it “ was one which affected all the people of the commonwealth ; its purpose and effect, if successful, was to corrupt a public election, and it was indictable at common law independently of the provisions of the Act of January 30, 1874, P. L. 31.” The evidence clearly discloses that the two appellants were the chief conspirators to commit this heinous offense, although the jury would have been fully justified in also convicting McCartney. He was manifestly unfit for the official position he occupied, and, speaking charitably, through age and weakness permitted the appellants, evidently adepts in the business, to use him to further their criminal and corrupt designs. As well said by the learned assistant district attorney in his brief: “Had the assessor been a free agent, and not under the absolute control and- dictation of the appellants, no one will deny that he was guilty of a most flagrant offense against the election laws, and his acquittal by the jury was a gross miscarriagé of justice.” Under the law, the three parties were all principals in the crime charged in the indictment, and the jury exercised their undoubted authority and convicted the appellants, and acquitted McCartney, the assessor.

The discretion exercised by the trial court in refusing a new trial on the ground that the jurors had read certain newspaper articles was not abused, as is clearly shown in the opinions filed by the trial judge and by the Superior Coui't. The learned trial judge said: “ They (the articles) narrate incidents of the trial which had already happened in the presence of, or within the hearing of, the jurors themselves, nor do they make false statements of such incidents.” The Superior Court said on the same subject: “We have carefully considered the publications in question and are of opinion that, as the articles did not refer to any previous misconduct of the defendants, or discredit any material witness, or misstate the evidence, it is by no means clear that they could have affected the verdict.” An examination of the articles in question will show that they contained nothing which would have warranted the court in granting a new trial. They disclosed nothing to the jurors who, iE attentive to the testimony, were not fully cognizant of all the articles contained. If, as urged by appellants’ counsel, the facts contained in the articles were to the disadvantage of their clients, it is sufficient to say they, were fully supported by evidence which the appellants did not, if they could, meet by contradictory testimony.

A careful consideration of the evidence in the case leaves no doubt whatever of the guilt of the appellants of the crime charged against them in the indictments. From the beginning of his duties in making the list of voters, and without the shadow of authority, they took charge of the assessor, and, as it were, led him from house to house, until the list was completed. They absolutely controlled and directed him in every step in making the list of voters. They not only determined what names should go on the voting list, but one of the two wrote nearly, if not all, the names entered on the list. By this means they succeeded in placing on the voter’s list of that election district the names of 169 persons who were disqualified as legal voters. The appellants were with the assessor and dictated his action when he sat at the polling place in September to hear applications for striking off the list the names of persons who were not legal voters. They and the assessor being then notified that these persons were disqualified as voters and requested to strike their names from the list, struck off 109 names, which, with knowledge of the disqualification, they had placed upon it; but the appellants persisted in their criminal conduct by openly and defiantly refusing to permit the assessor to further correct the list by striking from it the other sixty names. A more bold, determined and persistent assault upon the rights of the legal voters of an election precinct than that disclosed by this record is seldom, if ever, brought to the attention of a court of justice. The statutory penalty is wholty inadequate to the offense.

The judgment of the Superior Court and of the trial court in each of the appeals, 32 Pa. Superior Ct. 211, is affirmed, and it is ordered that the appellants, Philip Valverdi and Edward H. Wood, forthwith appear in the court below, to the end that they, respectively, be committed to serve such part of their respective sentences as had not been complied with at the time their respective appeals were made a supersedeas.

Mitchell, C. J.,

dissenting :

Guilty or innocent the appellants were entitled to a fair trial according to law, and that they did not get.

They were indicted for one offense, and convicted on evidence of another. The indictment charged conspiracy to put on the registry of voters names of persons who did not reside in the election district; the evidence ivas that the persons whose names were put on the list did reside in the district, but for want of naturalization or other reasons were not entitled to vote. Both were grave crimes, alike in that they were offenses against the election laws, and would affect the purity of the ballot. But they were not the same, either legally or in fact, and evidence of one was in no sense proof of the other.

The admission of much of the testimony is attempted to be justified on the ground that the commission of similar offenses is competent to show motive and intention as to the offense charged. This principle, dangerous at all times, admissible only as an adjunct and collateral fact, and requiring the strictest judicial control, cannot justify making such evidence the main body of the proof offered as was done here. And especially in a case like the present where the jury were liable to allow indignation at the offense charged to becloud the crucial question of proof of the guilt of the alleged offender.

Secondly, even if the incompetent evidence had not been received, the proper exercise of judicial discretion should have sustained the motion to withdraw a juror on account of the outrageous comments of the newspapers, which went directly into the jury box during the trial. The public mind, already inflamed on the subject, was directed particularly to these parties and the fact harped upon that others indicted with them had pleaded guilty, but these “ elected to take a chance of getting off, and stood trial.” The jurors were warned what the public expected of them, and at least one was assailed by name and threatened with the consequences to himself that would follow an acquittal.

A verdict rendered under such compulsion is not what the impartial administration of justice requires.


source: Caselaw Access Project

author: Justice Elkin,

license: Public Domain

text:
    Sperry v. Seidel, Appellant.

      Landlord and tenant — Proceedings to dispossess — Wrongful eviction.

    If a complaint filed in a proceeding to dispossess a tenant under the landlord and tenant Act of March 21, 1772, 1 Sm. L. 370, fails to aver the essential jurisdictional facts required by the statute, the proceedings are coram non judice and without legal effect. An eviction of the tenant in such a case is illegal and the landlord may be held liable for damages in an action of trespass.
    In an action of trespass to recover damages for a wrongful eviction under proceedings which were wholly invalid because of lack of the necessary jurisdictional facts, it is not reversible error for the court to refer to the eviction as an “abuse of legal process,” instead of referring to it as without “ any legal process ” to justify it.

      Damages — Exemplary damages.

    For wanton and intentional violation of the rights of others, or under circumstances of aggravation or oppression, exemplary damages may be recovered.
    Argued March 4, 1907.
    Reargued April 1, 1907.
    Appeal, No. 93, Jan. T., 1906, by defendant, from judgment of C. P. Berks Co., Nov. T., 1903,. No. 47, on verdict for plaintiff in case of William H. Sperry v. Henry J. Seidel.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass for wrongful eviction. Before Endlich, J.
    The opinion of the Supreme Court states the case.
    Yerdict for plaintiff for $3,947.83, upon which judgment was entered for $3,000, all above that amount having been remitted.

      Errors assigned among others were (1) in refusing binding instructions for defendant and using the words “abuse of legal process ” in the charge.

      Isaac Hiester, with him Dwrm <& Schaeffer and D. E. Schroeder, for appellant.
    In a landlord and tenant proceeding an averment that the tenant’s term had fully ended gives the magistrates jurisdiction to inquire of the truth of the averment, and if they err in their judgment the proceedings are not void for want of jurisdiction, nor the landlord liable as a trespasser: Galbraith v. Black, 4 S. & E. 207; Ayres v. Novinger, 8 Pa. 412; Federal Ins. Co. v. Robinson, 82 Pa. 357; Travelers’ Ins. Co. v. Heath, 95 Pa. 333; Duncan v. Kirkpatrick, 13 S. & R. 292; Breading v. Blocher, 29 Pa. 347; Kissock v. Grant, 34 Barb. 144 ; Field v. Anderson, 103 Ill. 403; West v. Smallwood, 3 M. & W. 418; Carratt v. Morley, 1 A. & E. (N. S.) 18; Tarbox v. Hays, 6 Watts, 398; McDonald v. Simcox, 98 Pa. 619; Hauer’s App., 5 W. & S. 473; Sloan v. McKinstry, 18 Pa. 120; Billings v. Russell, 23 Pa. 189; Sweeney v. Girolo, 154 Pa. 609; Crescent City Live-Stock Co. v. Butchers’ Union Slaughter House Co., 120 U. S. 141 (7 Sup. Ct. Repr. 472); Hart v. Cooper, 129 Pa. 297.
    If process is void and an action of trespass quare clausum fregit is brought against the person who caused it to issue, there can be no addition of punitive damages for abuse of legal process: Sommer v. Wilt, 4 S. & R. 19; Maher v. Ashmead, 30 Pa. 344; Baird v. Householder, 32 Pa. 168 ; Lane v. Sayre Land Co., 211 Pa. 290; Graver v. Fehr, 89 Pa. 460; Wenger v. Phillips, 195 Pa. 214.

      E. H. Deysher and G. II Buhl, for appellee.
    The action was properly brought: Day v. Sharp, 4 Whart. 339; Wall v. Wall, 123 Pa. 545; Graver v. Fehr, 18 W. N. C. 311.
    In an action of trespass exemplary damages may be recovered to punish the wrongdoer for the moral wrong, the recklessness with which the act has b.een committed, or the violence and outrage attending it: McBride v. McLaughlin, 5 Watts, 375; Huling v. Henderson, 161 Pa. 553; Greeney v. Penna. Water Co., 29 Pa. Superior Ct. 136.
    In a landlord and tenant proceeding under the provisions of the act of 1772, if 'the complaint of the landlord fails to aver essential jurisdictional facts, the proceedings are coram non judice and absolutely void; and an eviction of the tenant thereunder is illegal and is a trespass against him, for which the landlord is liable in an action of trespass: Fahnestock v. Faustenauer, 5 S. & R. 174; Camp v. Wood, 10 Watts, 118 ; Wall v. Wall, 123 Pa. 545; Pearsoll v. Chapin, 44 Pa. 9; Seylar v. Carson, 69 Pa. 81; Smith v. Wildman, 178 Pa. 245 ; Baird v. Householder, 32 Pa. 168; Maher v. Ashmead, 30 Pa. 344; Grohmann v. Ehrschman, 168 Pa. 189; Thatcher v. Powell, 19 U. S. 119.
    This identical question was ruled in 1877 in the court of common pleas, No. 2, Philadelphia county: De Coursey v. The Guarantee Trust & Safe Deposit Co. et al., 3 W. N. C. 518.
    April 22, 1907:
   Opinion by Mr.

Justice Elkin,

It must be conceded that the question raised by this appeal is a close one and not free from difficulty. There caD be no doubt, however, that if the complaint filed in a proceeding to dispossess a tenant under the landlord and tenant Act of March 21, 1772, 1 Sm. L. 370, fails to aver the essential jurisdictional facts required by the statute, the proceedings are coram non judice and without legal effect. An eviction of the tenant in such a case is illegal and the landlord may be held liable for damages in an action of trespass. Indeed, as we understand the contention of the learned counsel for appellant, this view of the law is not seriously questioned. It is argued, however, with much force that the original complaint in the procedings to dispossess the tenant did contain a sufficient averment of facts to confer jurisdiction, and that the landlord cannot be held liable in damages for a wrongful eviction which resulted from errors that may have been committed by the inquisition in its findings of fact relating to the date when the term of the lease ended. The difficulty with this position is that it is not supported by the record. In the original proceedings for recovery of possession of the demised premises the learned court below on certiorari held that the complaint on which it was founded, as well as the inquisition which acted on it, failed to show jurisdiction to entertain it. On appeal to the Superior Court the judgment of the court below was affirmed: Seidel v. Sperry, 26 Pa. Superior Ct. 649. In the per curiam opinion of the learned Superior Court it is suggested as a reason for affirming the judgment of the court below that the inquisition was defective on the ground of uncertainty, and it is now strongly urged that the question of jurisdiction was ’not decided in that case, and that the judgment entered therein cannot be set up by appellee here to sustain his contention that the proceeding under which he was evicted was without warrant of law, and, therefore, utterly void. As we read the opinion of the court below on the certiorari proceedings and of the Superior Court in reviewing them, there is no escape from the conclusion that the question of jurisdiction was the vital one involved and decided in that case. The Superior Court approved the reasoning of the “exhaustive and satisfactory” opinion of the learned court below and rested its decision largely upon that opinion. The court below in that case based its ruling on the ground that the necessary jurisdictional facts did not appear to sustain the proceedings, and when that judgment was affirmed by the Superior Court and no appeal taken, the question of want of jurisdiction was finally determined and is not now before us.

On the other questions raised by the assignments we do not agree that any reversible error was committed by the learned trial judge. If the inquisition proceedings were lacking in the jurisdictional facts required by the act of assembly, they were utterly void: Blashford v. Duncan, 2 S. & R. 480; McGee v. Fessler, 1 Pa. 126; Graver v. Fehr, 89 Pa. 460. In such a case the landlord is in precisely the same position as if there had been no proceedings to dispossess at all, and the eviction of the tenant under such circumstances is a trespass for which the landlord may be held liable in damages : Baird v. Householder, 32 Pa. 168; Kramer v. Lott, 50 Pa. 495; Kennedy v. Barnett, 64 Pa. 141; Boyd v. Snyder, 207 Pa. 330.

The fourth assignment seeks to convict the learned trial judge of error in charging the jury in substance that if they found from the evidence that the landlord was actuated by a disposition to oppress the plaintiff, to take a wrongful advantage of him by a willful or reckless abuse of legal process, then it would be permissible to impose exemplary damages. The use of the phrase abuse of legal process” in the charge was technically inaccurate for the reason that the action was based on the ground that the proceedings under which the landlord attempted to evict the tenant were void for want of jurisdiction, and the eviction was secured not by an “ abuse of legal process,” but without any “ legal process ” to justify it. It was therefore technically an error to speak of it as an “ abuse of legal process.” We do not see, however, how this inaccuracy did the defendant any harm, and it certainly does not amount to reversible error. The whole case was tried on the theory that the landlord was hable for damages because he had wrongfully and oppressively dispossessed his tenant without warrant of law. It has been frequently held that for wanton and intentional violation of the rights of others, or under circumstances of aggravation or oppression, exemplary damages may be recovered: McBride v. McLaughlin, 5 Watts, 375; Huling v. Henderson, 161 Pa. 553. The instructions to the jury on this question were as favorable as the appellant under the facts of the case had a right to expect.

Assignments of error overruled and judgment affirmed.


author: Me. Chief Justice Mitchell,

text:
    Hoodmacher v. Lehigh Valley Railroad Company, Appellant.

      Negligence — Railroads—Death—Right of action — Parties—Conflict of laws.

    An action for damages for injuries causing death being entirely statutory must be brought by the person to whom the right is given by the statutes of the state where the cause of action arose.
    In an action against a railroad company to recover damages for the death of a trainman, where it appears that the negligence which was the proximate cause of the accident began in Pennsylvania and continued until the accident occurred in New Jersey, and it also appears that the injured man was brought back to Pennsylvania where he died as the result of his injuries, the action is properly brought in Pennsylvania by the widow for the benefit of herself and child.
    Argued April 12, 1906.
    Reargued April 15, 1907.
    Appeal, No. 118, Jan. T., 1906, by defendant, from judgment of O. P. Luzerne Co., May T., 1902, No. 762, on verdict for plaintiff in case of Mary E. Hoodmacher and Florence M. Hoodmacher, widow and minor child of George B. Hoodinacher, v. Lehigh Valley Railroad Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Halsey, J.
    At the trial it appeared that the deceased, a flagman, was injured by an explosion of a locomotive belonging to the defendant, at Bloomsbury, New Jersey, on May 15, 1901. The evidence tended to show that the company had failed properly to inspect and repair the locomotive at the company’s roundhouse in Easton, Pennsylvania.
    Verdict and judgment for plaintiff for $7,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      J. B. Woodioawd, of Woodward, Darling c& Woodward, and H. W. Palmer, for appellant.
    The case should not have gone to the jury because the accident happened in New Jersey, and the suit was brought in the name of the parties to whom the right of action is given in Pennsylvania: Usher v. West Jersey R. R. Co., 126 Pa. 206.

      John T. Lenahan, with him Charles Orion Stroh, for appellees.
    This case is ruled by Derr v. Lehigh Valley R. R. Co., 158 Pa. 365.
    The doctrine of liability contended for by us, under the Derr case, is in line with the following cases from other states: VanDoren v. Penna. R. R. Co., 93 Fed. Repr. 260; The Strabo, 90 Fed. Repr. 110; Lindstrom v. International Nav. Co., 117 Fed. Repr. 170; Heaven v. Pender, L. R. 11 Q. B. Div. 503; R. R. Co. v. Derby, 55 U. S. 468.
    May 24, 1906 :
   Opinion bt

Me. Chief Justice Mitchell,

This case is ruled by Usher v. West Jersey R. R. Co., 126 Pa. 206, in which it was held that an action for damages for injuries causing death, being entirely statutory, must be brought by the person to. whom the right is given by the statutes of the state where the cause of action arose. In the syllabus of that case, the expression is that the action must be brought by the person to whom the right is given by the statutes of the state where the injuries were inflicted.” For the facts in that case the expression is entirely accurate, for the injuries and the death both occurred in New Jersey. But the more general expression, the state where the cause of action arose,” is the better one. The learned judge below appears to have been misled by the assumption that an exception to this principle has been established in Derr v. Lehigh Valley R. R. Co., 158 Pa. 365. But no such question arose in thát case, for the decedent, for whose death the action was brought, died in Pennsylvania, and, if an action lay at all, it was in this state and under our statute. In that case the injuries were received in New Jersey and the action was sought to be sustained by showing that the negligence, which was the proximate cause, began in this state and continued till the injuries were actually inflicted. A nonsuit was sustained for the failure of evidence on this point. “ Unless a negligent act or omission in Pennsylvania,” said McCollum, J., “ which was directly responsiSr the injury received in New Jersey, is shown by the evi5"fi|ge, there is no question of jurisdiction to be considered. If fhe "evidence is insufficient to warrant an inference of such 'ligence the nonsuit must be sustained.”

'h the present, as in the Derr case, the plaintiff based the "'right of recovery on the evidence of the initial negligence of the defendant in this state which continued and became part of the proximate cause of the death. In this case the jury so d. But this view overlooks the fact that in the present Isífhat is nob a controlling element. In the Derr case, as lady said, the death occurred in this state, and if the proxii<*ause was negligence also occurring in this state, the con-of the statute, giving the widow a right of action, ícfc'áll have been met. But here, the essential condition of the state, is lacking. No matter how great the neg-

the defendant, nor where it began or continued, ,%hl|rqh!ras no cause of action to anybody until an injury was 1 .feheí'vÁdf,'. As soon as the decedent was injured he had a com-right of action, which was transitory and enforceable í^ '^iiyí'cljínmon-law jurisdiction where defendant could be iserV^i'i' ^ut when he died wdthout having brought suit, his tigiw^ied with him, there was no survivorship to anyone. By stdtiif£§?arnew right arose, derivative in its nature and not maintálÍ|«^|,when if he had lived he could not have recovered, y'amMcldiel ess, a new right, resting entirely on statute, and veile^wtelparty to whom it is given by the statute of the gin which it arose.

decedent having died in New Jersey, if there had ítutó jb. that state providing for a new action, there woqjq. right in anyone anywhere, but the statute b at to the decedent’s representatives, they, and th"assert it. beérfn¡

Judgmq'^^^|i,s'ed’,

On petitr&hi&^p-ggument it was shown that decedent after the accid'$&< tW Jersey was brought back to Easton Hhw&r*'*'1

¥0h|t^é’h^r^rñ:^. ír.- dnif n Aaa?foj¡i ÍS§Jlc;i This caí© píe& In flowing opinion was delivered by l" toril 29, 1907: and on the first argument was argued here on the theory that the initial negli, of the defendant occurred in this state, and continued am came part of the proximate cause of the accident in New Jed Owing to this view of the case, the fact was not disclosed the deceased, though injured in New Jersey, had been bro home and died in this state. The judgment was, there! reversed under the authority of Usher v. West Jersey R. R. Co., 126 Pa. 206. It being now shown to the court that the death occurred in Pennsylvania, the case is directly Derr v. R. R. Co., 158 Pa. 365, and was properly broug the widow for the benefit of herself and child.

The order heretofore made reversing the judgment court below, is now rescinded, and the judgment is affi:


text:
    Chester City v. Union Railway Company of Chester, Appellant.

      Street railways — Municipal consent — Gondition—Arbitra —Equity.

    Where a city by ordinance gives to a street railway right to use a particular street, but reserves in the ordi: to grant to any other railway company the right to use tl and the mayor, as a condition of giving his assent to requires the railway company to enter into an agree: any dispute that it may have with another company to to the use of the street may be granted, the compan; quently allege that the agreement for arbitration ordinance was not binding on it, and that, even ment of submission is revocable.
    If the ordinance, in such a case, contains no agreement to arbitrate cannot be construed as to forfeit the franchises, because the compan; an arbitrator was not able to carry through of its arbitrator, acting in good faith, bei: second arbitrator on the choice of the thin the rthe right ' appointed on account free with the
    Where the city acting under the ordina another railway company to use the thereafter maintain a bill in equifr mit the second company a case is the grantee i:

      Argued Feb. 12, 1907.
    Appeal, No. 292, Jan. T., 1906, by defendant, from decree of O. P. Del. Co., March T., 1905, No. 16, on bill in equity in case of City of Chester v. Union Railway Company of Chester, Pa., and The Chester Traction Company.
    Before Mitchell, C. J., Pell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Bill in equity for an injunction. Before Johnson, P. J.

      Error assigned, was the decree of the court awarding an injunction.

      W. B. Broom all, for appellants.
    An executory agreement to arbitrate is revocable: Mentz v. Armenia Eire Insurance Company, 79 Pa. 478; Gray v. Wilson, 4 Watts, 39; Snodgrass v. Gavit, 28 Pa. 221; Lauman v. Young, 31 Pa. 306; Needy v. German-American Insurance Company, 197 Pa. 460; Commercial Union Assurance Company v. Hocking, 215 Pa. 407; Penn Plate Glass Company v. Spring Garden Insurance Company, 189 Pa. 255; Yost v. Insurance Company, 179 Pa. 381.
    Refusal to act or the death of an arbitrator is a revocation: Wolf v. Augustine, 181 Pa. 576; Needy v. German-American Ins. Co., 197 Pa. 460; Minersville Borough v. Schuylkill Electric Ry. Co., 205 Pa. 394.

      A. A. Goehr an, for appellee.
    A grant to a corporation is always strictly construed against the corporation and in favor of the public. Com. v. Central Pass. Ry. Co., 52 Pa. 506; Stein v. Bienville Water Supply Co., 141 U. S. 67 (11 Sup. Ct. Repr. 892).
    Where a submission contains more than a naked power it assumes the form and character of a contract, whereby important rights are gained and lost reciprocally, and the submission is a moving consideration; it is not revocable: Paist v. Caldwell, 75 Pa. 161; White’s Appeal, 108 Pa. 473; McKenna v. Lyle, 155 Pa. 599, Zehner v. Lehigh Coal, etc., Co., 187 Pa. 487; McCune v. Lytle, 197 Pa. 404; Everhart Heirs v. Flynn & Collins, 6 Pa. Dist. Rep. 131; Buckwalter v. Russell, 119 Pa. 495.

      The city had the right under the constitution to make the grant of its streets subject to any conditions, precedent, concurrent or subsequent, and the company could either accept or refuse.
    This right has been settled in Pittsburg’s Appeal, 115 Pa. 4; Plymouth Township v. Railway Co., 168 Pa. 181; Minerville Boro. v. Railway Co., 205 Pa. 394; Allegheny v. Millville, etc., St. Ry. Co., 159 Pa. 411; Montooth Boro. v. Ry. Co., 206 Pa. 338.
    April 29, 1907:
   Opinion by

Me. Chief Justice Mitchell,

The city of Chester in 1893 by ordinance granted to the Union Railway Company, appellant, the'right to construct and operate its railway on certain streets named. The ordinance contained conditions, none of which have any relevancy to this controversy except the following, the councils of the city of Chester reserve the right to grant permission to any other railroad company to run over the tracks of the said Union Railway Company on ... . Edgmont avenue from Fifteenth street to the city line, upon the company to whom this right shall be granted making an amicable arrangement with the Union Railway Company for the running of cars over its tracks between the points named.” When this ordinance was presented to the mayor he declined to approve and sign it until the appellant had agreed “ that if at any time permission shall be granted by the said city of Chester to any other railway company, or if such permission shall be asked of the said city by any other railway company to run over the tracks of the party of the first part on ... . Edgmont avenue, from Fifteenth street to the city line, .' : .. . and the said party of the first part and the said other railway company shall fail to agree upon the terms upon which the said other railway company shall be allowed to use the tracks of the party of the first part, then and in such case the terms and conditions of such use shall be determined in the following manner, to wit: The party of the first part shall appoint one person and the other railway company asking the said permission shall appoint another person, ands these two persons so appointed shall select a third person, and‘the majority of the said three persons so selected shall prescribe the terms and conditions upon lyhich the said other railway company shall occupy and use the said tracks of the said party of the first part, and such terms shall be obligatory upon the said party of the first part; and in case either party refuse or neglect within a reasonable time to appoint, the other party shall have the right to appoint in its place.” A formal agreement in these terms was executed by the appellant company and the mayor and city clerk, and on the same day the ordinance was signed by the mayor and became effective.

By various ordinances between 1894 and 1902 the city of Chester granted to the Media, Middletown, etc., railway company the right to lay tracks on certain streets, including finally Edgmont avenue, 'with the right to use appellant’s tracks thereon. This was the origin of the present controversy.

The appellant claimed that the agreement for arbitration not being part of the ordinance was not binding on it, and that even if it were, the agreement of submission was revocable. Neither claim can be sustained. Whether the mayor of the city had any authority to impose conditions of consent additional to those called for in the ordinance itself is a question that does not arise. The appellant agreed to them. The city was not under any obligation to grant the use of its streets at all, and did so only by virtue of the ordinance; the ordinance became valid by the mayor’s approval, and his approval was in consideration of the agreement for arbitration. That agreement was, therefore, part of the consideration for the city’s consent and binding on the appellant.

Nor can the appellant’s claim of the right to revoke the agreement of arbitration be sustained. While such agreements are in general unfortunately under the apcient precedents held revocable, yet where they are part of the condition of the municipal consent, the corporation 'takes the consent cum onere and cannot thereafter revoke or repudiate any part of the condition: Plymouth Township v. Chestnut Hill etc., Ry. Co., 168 Pa. 181.

But on the other hand the ordinance of March, 1904, was far beyond the city’s authority. There was no clause of forfeiture in the original ordinance of consent, and even if the agreement of arbitration could possibly be considered as containing such implied power, there was no breach by the appellant. Even express powers of forfeiture must be strictly followed. What the agreement stipulated for was the appointment of an arbitrator by each party, and on refusal by either the right of the other to appoint for both. The appellant did not refuse. On the contrary, it appointed an arbitrator who met the arbitrator appointed by the Media & Middletown Company, but failed to come to an agreement with him as to the third, and thereupon the Media & Middletown arbitrator assumed to appoint another and an award was made by the tribunal as thus constituted. This action was entirely unauthorized and the award a nullity. The appellant appointed an arbitrator and thus prima facie complied with its agreement. If appellant or its arbitrator was acting in bad faith and his failure to agree on a third arbitrator was a mere device to escape substantial compliance with the agreement, that fact should have been judicially established by a bill or other proceeding. It could not be assumed by the adverse party and action taken on that assumption. The award was a nullity and the ordinance of March 22, 1904, based on it was void for want of authority to declare a forfeiture.

Rut another fatal objection to the present proceeding is that the city of Chester on its own showing is not a party aggrieved. In consenting to the occupation of its streets by the appellant it reserved the right “ to grant permission to any other railroad company to run over the tracks of the said Union Railroad Company on Edgmont Avenue,” etc. • Under that reservation it has given permission to the Media & Middletown Railway, and if such permission has been regularly and properly granted the franchise to that company is complete and valid and enforceable without reference to appellant’s consent or action. The right of the city to grant permission to the second company was not in any way dependent on the “ amicable arrangement” between the two companies. Such a construction would make the validity of the city’s permission to the-second company dependent on the appellant’s willingness to come to such amicable arrangement and thus put it in appellant’s power to defeat the city’s reserved right. The agreement for arbitration by the two companies, therefore, was no part of the franchise which the city reserved the right to grant. It was only a mode provided for adjusting conflicting rights in the future, a mode to be pursued in the first instance because it was so agreed, but not exclusive of a mode to be ascertained and enforced by a court of equity if as heretofore said the action of appellant or its arbitrator was in bad faith for the real purpose of defeating an apparent compliance. But the party aggrieved in such case, and, therefore, the party to ask for remedy, is the grantee of the second franchise which is thus interfered with. The city has exercised its reserved right and has no further legal interest in the matter.

The Media & Middletown railway is not a party to this action and its rights cannot be adjudicated in it.

The decree is reversed and the bill dismissed, each party to pay half the costs.


author: Mr. Chief Justice Mitchell,

text:
    Schmelzer v. Chester Traction Company, Appellant.

      Negligence — Street railways — Passenger—Alighting from car — Pleading — Statement of claim — Amendment—Statute of limitation.

    In an action by a passenger against a street railway company to recover damages for personal injuries, sustained while alighting from a street car, the plaintiff may at the trial, over two years after the accident, amend his statement of claim by changing an averment that there was no stop of the car at all, to an averment that there was an insufficient stop. On a question of negligence there is no legal difference between no stop and no sufficient stop, the inference being the same in both cases.

      Negligence — Damages—Married women — Earnings—Acts of February 22, 1718, 1 Sm. L. 99, May 4, 1855, P. L. 430, June 11, 1879, P. L. 126, June 3,1887, P. L. 332 and June 8,1893, P. L. 344.
    Under the acts relating to married women in Pennsylvania, a deserted wife may sue separately and in her own name to recover damages for the loss of her earning power in the future, sustained through injuries to her person.
    Argued Feb. 12, 1907.
    Appeal, No. 293, Jan. T., 1906, by defendant, from judgment of C. P. Del. Co., June T., 1904, No. 208, on verdict for plaintiff in case of Annie Schmelzer v. Chester Traction Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P, J,

      The opinion of the Supreme Court states the case.
    At the trial the court charged that the plaintiff Avould be entitled to be compensated, if the ¡jury found for her “ for the loss of her earning power, both before the trial and after.”
    Verdict for plaintiff for $2,366, on Avhich judgment Avas entered for $1,500, all above that amount being remitted.

      Errors assigned were (1) in permitting the amendment; (2) above instruction, quoting it.

      W. B. Broomall, for appellant.
    While a plaintiff may be permitted to amend by stating the same feature of alleged negligence in different ways, yet he may not amend by introducing into his action a different act of negligence Avhere this deprives the defendant of his right to plead the statute: Shock v. McChesney, 4 Yeates, 507; Coxe v. Tilghman, 1 Whart. 282 ; Wood v. Anderson, 25 Pa. 407; Farmers’ & Mechanics’ Bank v. Israel, 6 S. & R. 293 ; Locke v. Daugherty, 43 Pa. 88; Wright v. Hart, 44 Pa. 454; Smith v. Smith, 45 Pa. 403; Trego v. Lewis, 58 Pa. 463; Furst v. Building Assn., 128 Pa. 183; Knapp v. Hartung, 73 Pa. 290; Kaul v. Lawrence, 73 Pa. 410; Leeds v. Lockwood, 84 Pa. 70; Royse v. May, 93 Pa. 454; Tyrrill v. Lamb, 96 Pa. 464; Fairchild v. Dunbar Furnace Co., 128 Pa. 485; Seipel v. Rj. Extension Co., 129 Pa. 425; Grier v. Northern Assurance Co.; 183 Pa. 334.
    At common Mav a married Avoman, of course, could not recover by suit for a diminishment of her earning poAver. An injury to the married Avoman diminishing her earning power was a loss to the husband. Unless, therefore, this injury has been transferred from the husband to the AAdfe by statute, and unless she has been empoAvered by statute to recover compensation for it by a suit in her own name, the court was wrong in permitting the jury to find in her favor compensation for decreased earning power, otherwise called loss of services.
    They each have their rights of action still existing in them respectively: Rockwell v. Waverly, etc., Traction Co., 187 Pa. 568.
    It is still the law that the husband is vested Avith his right of action for loss of his wife’s services, although the manner of asserting it may constitutionally be regulated by law : Donoghue v. Consolidated Traction Co., 201 Pa. 181; Standen v. Penna. R. R. Co., 214 Pa. 189; Reagan v. Harlan, 24 Pa. Superior Ct. 27; Nuding v. Urich, 160 Pa. 289.

      Joseph H. Hinlcson, for appellee.
    -The amendment presented the facts as they occurred, and did not involve a new cause of action. The facts were the same in the original and amended statement: Baylor v. Stevens, 16 Pa. Superior Ct. 365; Rife v. Middleton, 32 Pa. 68; Smith v. Bellows, 77 Pa. 441; Jackson v. Gunton, 26 Pa. Superior Ct. 203; Thompson v. Chambers, 13 Pa. Superior Ct. 213; Stoner v. Erisman, 206 Pa. 600; Beeson v. Com., 13 S. & R. 249; Fillman v. Ryon, 36 W. N. C. 391; Caldwell v. Remington, 2 Whart. 132; Cassell v. Cooke, 8 S. & R. 268; Ins. Co. v. Spang, 5 Pa. 113; R. R. Co. v. McCutcheon, 18 W. N. C. 527; Oreswell v. Blank, 3 Grant, 320; Taylor v. Canton Twp., 30 Pa. Superior Ct. 305; Pittsburg Nat. Bank v. Hall, 107 Pa. 583; Kroegher v. McConway & Torley Co., 149 Pa. 444; Kirchner v. Smith, 207 Pa. 431; Elder Twp. School Dist. v. Penna. R. R. Co., 26 Pa. Superior Ct. 112.
    The plaintiff could recover loss of future earning power: Koch v. Williamsport, 195 Pa. 488; Rockwell v. Waverly, etc., Traction Co., 187 Pa. 568 ; Lewis’s Est., 156 Pa. 337; Glenn v. Phila., etc., Traction Co., 206 Pa. 135; Olin v. Bradford, 24 Pa. Superior Ct. 7; Standen v. Penna. R. R. Co., 214 Pa. 189; Gehman’s Est., 20 Lanc. 36; Wallace v. Penna. R. R. Co., 195 Pa. 127.
    April 29, 1907:
   Opinion bt

Mr. Chief Justice Mitchell,

Two questions arise in this case, first, was the amendment properly allowed, and, secondly, was the charge correct in regard to the plaintiff’s right to recover for loss of her earning power?

Plaintiff was injured in alighting from a car. The first statement averred that the defendant was negligent, in that it did not “ slacken the car and stop the same .... but immediately after the arrival of the said electric car at the public crossing at Market street, in the said city of Chester, and ■while the said plaintiff with the consent and permission of the said defendant and with all due care and diligence was alighting from the said electric car, the said defendant caused the same to be suddenly and violently moved and started, by means thereof the said plaintiff was violently thrown therefrom to the ground, by means whereof,” etc. At the trial an amendment was allowed charging the negligence to consist in this “that the said defendant stopped the said electric car at Market street aforesaid, so that the said plaintiff could alight and depart therefrom, but after the arrival and stopping as aforesaid of the said electric car at the public crossing at Market street, in the said City of Chester, and while the said plaintiff with the consent and permission of the said defendant and with all due care and diligence was alighting from the said electric car, the said defendant caused the same to be suddenly and violently moved and started, by means thereof the said plaintiff was violently thrown,” etc.

When the amendment was offered and allowed more than two years had elapsed and defendant objected on the ground that the statute of limitations, which was -pleaded, had run and no amendment could be allowed which changed the cause of action. The rule is undisputed, but it was not violated in this case. Briefly expressed, the difference between the two statements is that the first avers there was no stop of the car at all while the second avers an insufficient stop. Both relate to the same injury, at the same time, the same place and the same circumstances, except for the difference in regard to the stop. But on the question of negligence there is no legal difference between no stop and no sufficient stop, the inference is the same in both cases. A difference might arise on the question of contributory negligence of the plaintiff, but both statements expressly negatived that by the averment of due care. As a material fact it was as necessary for plaintiff to show a case clear of her own negligence under one statement as under the other, and as a defense it was equally open to evidence from defendant under both. The amendment cannot be regarded as a change of the cause of action, but only as a restatement in a different form which did the appellant no injury : Stoner v. Erisman, 206 Pa. 600.

Secondly, the plaintiff was a married woman who sued in ■her own name without joining her husband. At the trial she gave evidence that her husband.had deserted her, and the jury found this fact in her favor. Defendant objected that her earnings belonged to her husband and, therefore, the loss of the power to earn in the future could not be included in the verdict.

It may be noted that as the statute of limitations had run since the accident no action could be maintained by the husband ■ even if he should return. And also that the assignment of error in this regard refers not to earnings, but to earning power. Neither of these matters, however, is material in the present case.

The Act of February 22, 1718, 1 Sm. L. 99, empowered the wives of mariners who had gone to sea, leaving their wives at shopkeeping or to work for their livelihood, to sue without naming the husband. And the Act of May 4, 1855, P. L. 430, provides that wives whose husbands have deserted them “ shall have all the rights and privileges secured to a feme sole trader, under the Act of the 22d of February, 1718.”

The Act of June 11, 1879, P..L. 126, provides that, “In all cases where a wife has been deserted, abandoned or driven from her home by her husband, it shall be lawful for her to bring suit in any of the courts of this Commonwealth, against her husband or any other person or persons, without the assistance or intervention of a trustee or next friend, .... in same manner and with like effect as if she were sole and unmarried.”

The Act of June 3, 1887, P. L. 332, provided that property owned, acquired or earned by a married woman shall belong to her and not to her husband. Under this act it was held that wages of her labor were included: Lewis’s Est., 156 Pa.' 337. And under the Act of June 8, 1893, P. L. 344, which supplied the act of 1887, it was held that though the word “ earnings ” does not appear in the later act, personal services are a species of property, and earnings acquired by them are equally within the act: Nuding et al. v. Urich, 169 Pa. 289.

Under these statutes and decisions it is clear that a deserted wife may sue separately in her own name for compensation for her services and earnings, and if she may thus recover for what she has acquired as her property in the past she may certainly recover for the loss of capacity to acquire other property of the same kind in the future.

Judgment affirmed.


author: Per Curiam,

text:
    Bond, Appellant, v. Pennsylvania Railroad Company.

      Practice, C. P. — Judgment non obstante veredicto — Act of April 22, 1905, P. L. 286.
    Act of April 22, 1905, P. L. 286, was not intended to change the relative functions of court and jury, so as to permit the judge to decide questions of conflicting evidence, but only to allow him to do subsequently on review of the whole case what it then appeared it would have been proper to do by a binding direction at the trial.

      Negligence — Railroads—Crossings—“Stop, loolc and listen” — Judgment non obstante veredicto — New trial.

    Where a verdict has been recovered against a railroad company for personal injuries sustained at a grade crossing, and a motion has been made for judgment for defendant non obstante veredicto, and upon the hearing of this motion the court is of opinion that the verdict was clearly against the weight of the evidence, the proper remedy is a new trial, and not an entry of judgment for defendant non obstante veredicto.
    Argued Feb. 13, 1907.
    Appeal, No. 9, Jan. T., 1907, by-plaintiff, from judgment of C. P. Chester Co., Aug. T., 1906, No. 27, for defendant non obstante veredicto in case of Win-field S. Bondv. the Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Hemphill, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $5,000, upon which judgment was subsequently entered for defendant non obstante veredicto. Plaintiff appealed.

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

      A. M. Holding, with him John J. Ghoen, for appellant.

      John J. Pinkerton, for appellee.
    April 29, 1907 :
   Per Curiam,

The plaintiff, about half-past five on a January afternoon, drove in an ordinary top buggy down Washington avenue in Downingtown towards the tracks of the defendant.. lie testified positively that when about thirty or thirty-five feet from the track he stopped, looked both ways and listened, and not seeing or heai’ing anything he drove on “ at a quiet gait,” “ just a jog trot,” and when he got near the track he saw the engine coming, “ and I guess the horse heard it or saw it about the same time, and he swung around and the engine hit the wagon and threw me out.” He also testified that if it had been daylight he could have seen the engine several hundred feet away, but it was getting dark and the train was a freight with no headlight on the engine. On this presentation the plaintiff had made out a case for the jury.

On the other hand, a number of witnesses testified that they saw the train plainly and heard the whistle; that plaintiff did not stop, but kept on until his horse shied and ran in front of the engine. The learned judge submitted the case to the jury in these terms : “ Now, gentlemen, as I have said to you before, if the testimony of the plaintiff is the testimony that you can rely upon as giving you the facts and true circumstances under which this accident happened, he would be entitled to recover. If you disregard that testimony and credit that of the other witnesses which seem to conflict with it, and which showed that the accident, if you believe them, happened, not at "Washington avenue crossing, but some 100 to 150 feet or more south of it, and it was by reason either of this man driving under excitement or recklessly down along the track, and then attempting to cross in front of the train, or by reason of his inability to control his horse, it would constitute then an accident for which neither he or the railroad company would be responsible, and your verdict in such case would be simply for the defendant.”

The jury found for the plaintiff, but the court subsequently entered judgment for the defendant non obstante veredicto. The ground of the judgment is concisely expressed in the passage, “ It would seem clear from the testimony in the case that, either the plaintiff did not stop, look and listen, where he said he did, or that, if he did, he must afterwards have proceeded in a negligent and careless manner until he was on the tracks and struck; and having thus contributed to his own misfortune, cannot recover.”

It is manifest that the judge believed the witnesses on the part of the defendant, and regarded the verdict as clearly against the weight of the evidence. But the remedy for this is a new trial. The Act of April 22, 1905, P. L. 286, is not intended to change the relative functions of court and jury, so as to permit the judge to decide questions of conflicting evidence, but only to allow him to do subsequently on review of the whole case what it then appears it would have been proper to do by a binding direction at the trial: Dalmas v. Kemble, 215 Pa. 410.

For this error the judgment must be reversed, but as it appears that the motion for a new trial has not been formally disposed of, it will be open to the court to consider that rule.

Judgment reversed and procedendo awarded.


author: Mr. Justice Elkin,

text:
    Commonwealth v. Deitrick, Appellant.

      Criminal law — Murder—Accidental tailing — Burden of proof.

    The burden of proof in homicide cases, where the defense of accidental killing is set up, does not shift, but rests on the commonwealth to show that the killing was willful and intentional.
    On the trial of a homicide case it is reversible error for the court to charge “that the burden is upon the defendant to convince you beyond a reasonable doubt that the killing of the deceased was purely accidental, before he should be acquitted upon that ground.”

      Criminal law — Murder—Erroneous instructions — Appeals.
    In a murder case where clear error appears in the instructions to the jury upon the vital and controlling defense set up, the appellate court cannot judicially say that no harm was done the defendant and that, therefore, no reversible error was committed.
    Argued March 4, 1907.
    Appeal, No. 341, Jan. T., 1906, by defendant, from judgment of O. & T. Montour Co., Feb. T., 1906, No. 1, on verdict of guilty of murder in the second degree in case of Commonwealth v. Peter Deitrick.
    Before Mitohell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.

      Indictment for murder. Before Evans, P. J.
    The opinion of the Supreme Court states the case.

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

      Fred Heeler, with him Won. Ease West, for appellant.
    The burden of proof did not shift from the commonwealth to the prisoner: Com. v. McKie, 67 Mass. 61; Meyers v. Com., 83 Pa. 131; Com. v. Kilpatrick, 204 Pa. 218.

      H. M. ELwieldey, with him Qhas. P. Gearhart, district attorney, for appellee,
    cited: Meyers v. Com., 83 Pa. 131; Williams v. Com., 29 Pa. 102; Kilpatrick v. Com., 31 Pa. 198; Reeves v. D., L. & W. R. R. Co., 30 Pa. 454; Alexander v. Com., 105 Pa. 1; Shovlin v. Com., 106 Pa. 369; Rudy v. Com., 128 Pa. 500; McCloskey v. Bells Gap R. R. Co., 156 Pa. 254; Com. v. Mika, 171 Pa. 273; Com. v. Bowman, 171 Pa. 448; Com. v. Washington, 202 Pa. 148.
    April 29, 1907 :
   Opinion by

Mr. Justice Elkin,

At the trial in the court below on an indictment charging murder, under the plea of not guilty, the defendant relied upon the defense of accidental killing. The learned trial judge charged the jury as follows: “ We further say to you that the burden is upon the defendant Deitrick to convince you beyond a reasonable doubt that the killing of Jones ivas purely accidental before he should be acquitted upon that ground,” and this instruction has been assigned for error.

Under the plea of not guilty the defendant may show that the killing was accidental, and if the testimony satisfies the jury that the killing was the result of an accident, they should return a verdict of not guilty. We are not familiar with any authority which holds that when such a defense is set up the burden rests upon the defendant to show that the killing was accidental beyond a reasonable doubt. Such a rule would shift the burden of proof from the commonwealth, whose duty it is to establish the guilt of the defendant in all cases beyond a reasonable doubt. The defense of accidental killing is clearly distinguishable from that of an alibi or insanity, in -which cases it has been held that the burden of proving such defenses is on the defendant. No Pennsylvania cases have been called to our attention in which the exact question raised by this appeal has been decided, but the rule recognized by many text-writers and established in some jurisdictions is that the burden in homicide cases where the defense of accidental killing is set up does not shift, but rests on the commonwealth to show that the killing was willful and intentional.

In State v. McDaniel, 68 So. Car. 304, the court said: But we do not think that a defense that the homicide was accidental was in any sense an affirmative defense. It is distinguishable from self-defense as a plea which admits an intentional killing and sets up as a justification a necessity to kill in order to save the accused from death or serious bodily harm, whereas a defense of homicide by accident denies that the killing Avas intentional.” In State v. Cross, 42 West Va. 253, the rule was laid doAvn in the following language: “ Accidental killing is not such matter of defense as throws on the accused the burden of proving it by a preponderance of evidence. It is the duty of the state to allege and prove that the killing, though done with a deadly weapon, Avas intentional or willful. But when the evidence taken as a whole raises a reasonable dotibt in the minds of the jury as to whether the killing Avas accidental or intentional, they must acquit the accused for the reason that the state has failed to sustain its case.”

This, it seems to us, is the correct rule when such a defense is set up. The burden is always on the commonwealth to prove beyond a reasonable doubt all of the facts necessary to constitute the crime of murder. It is not sufficient to prove the killing alone, or that it Avas done Avith a deadly Aveapon, but such facts must be shown as will warrant a jury in finding that it was intentional or willful. If the killing Avas accidental, although done with a deadly weapon, it could not be said to be either intentional or willful, and if neither intentional nor willful, the crime of murder is not made out. But, even if this should be held not to be the correct rule, the instruction of the learned trial judge cannot be sustained because it is in plain violation of a rule of law in another respect. It is settled laAV that even in those cases in Avhich the burden of proof is on the defendant to sustain an affirmative defense set up, as, for instance, insanity or an alibi, it is only necessary to establish it by a preponderance of the evidence, and it is not required that it should be proven beyond a reasonable doubt: Meyers v. Commonwealth, 83 Pa. 131. In that case the defense was insanity, and the learned court below instructed the jury that they must be satisfied beyond a reasonable doubt that the prisoner was insane at the time the act.was committed. This court held that the instruction was too stringent, and threw upon the prisoner a degree of proof beyond the legal measure of his defense, 'which only required that he must satisfy the jury that he was insane, and that this result flows from the preponderance of the evidence.

The instruction of the learned trial judge relating to the accidental killing was clearly erroneous, and this seems to be conceded, but it is contended that this error was cured by other parts of the charge wherein the jury was instructed generally that it was the duty of the commonwealth to establish the guilt of the prisoner beyond a reasonable doubt. While we agree with the suggestion of the learned counsel for the commonwealth made at the argument that court's will not be astute to sustain technical objections in the trial of such cases when substantial justice has been accorded the defendant, it, however, has never been held that where clear error appears in the instructions to the jury upon the vital and controlling defense set up, the appellate court can judicially say no harm was done the defendant and therefore no reversible error was committed.

Judgment reversed and á venire facias de novo awarded.


author: Mr. Justice Fell,

text:
    Wallace’s Estate.

      Parent and child — Adoption—Contract.
    An indenture of apprenticeship concluded as follows: “Although the present instrument binds the above-named child, strictly as an apprentice, it is, nevertheless, the true intention of the parties of the first part to place, and of the party of the second part to receive said apprentice as an adopted child, to reside in the family of the party of the second part, and to be maintained, clothed, educated and treated as far as practicable, with like care and kindness as if he were in fact the child of the said party of the second part.” Held, that the indenture did not constitute the child an adopted son and heir of the master.
    Argued March 14, 1907.
    Appeal, No. 17, Jan. T., 1907, by A. E. Brittain, ancillary administrator c. t. a., from decree of O. C. Monroe Co., dismissing exceptions to auditor’s report in Estate of William Wallace, deceased.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of Iiarvey Huffman, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      John G. Johnson, with him Edward R. Loud and Henry J. Kota, for appellant.
    The cardinal fact is the intent of the adopting parent: Peterson’s Estate, 212 Pa. 453; Ballard v. Ward, 89 Pa. 358.
    Although an alleged adoption be invalid because of noncompliance with statutory requirements, yet the attempted adoption may be given effect upon the death intestate of one of the adopting parents, on the ground of a contract to leave his property to the child, where the contract has been performed by the latter by rendering the services due from a child to its parents: Susman’s Estate, 45 Pitts. Leg. J. 101; Van Tine v. Van Tine, 15 Atl. Repr. 249; Wright v. Wright, 99 Mich. 170 (58 N. W. Repr. 54); Healey v. Simpson, 113 Mo. 340 (20 S. W. Repr. 881).

      A. Mitehell Palmer, with him John B. Williams, for appellee. —
    There was no legal adoption : Ballard v. Ward, 89 Pa. 362.
    A case bearing a striking resemblance to the case at bar, particularly in the form of the uffienture, is McCully’s Appeal, 10 W. N. C. 80.
    A child by adoption cannot inherit from the parent by adoption unless the act of adoption has been taken in strict accordance with the statute: Furgeson v. Jones, 3 L. R. A. 620; Foley v. Foley, 61 Ill. App. 577; Taylor v. Deseve, 81 Texas, 246 (16 S. W. Repr. 1008); Fuselier v. Masse, 4 La. 423.

      The claimant has no right to inherit under an alleged contract of adoption: McCann's Est., 9 Pa. Dist. Rep. 184.
    April 29, 1907:
   Opinion by

Mr. Justice Fell,

The question in this case is whether Charles Brandies, whose administrator is appellant, was the adopted son of William Wallace. It appears from the findings of the auditor, approved by the court, that in 1861 William Wallace received from the American Female Guardian Society of New York and took to his home in Stroudsburg, Pa., two orphans, a brother and sister, Charles Brandies and Emily Brandies, aged eight and ten years. Both children were afterwards known by the name of Wallace. Neither Mr. Wallace nor his wife wanted the boy, but the society refused to have him separated from his sister. He lived in the home of Mr. Wallace a short time, when he went to the home of Mrs. Huntsman in the same town. He attended school irregularly and was about Mr. Wallace’s place of business, but performing no services for him, until he became eighteen years of age, when he went to Michigan to live with Mr. Wallace’s brother. He remained there four or five years, when he returned to Stroudsburg, and for a few months acted as a clerk in Mr. Wallace’s store. He went back to Michigan in 18Y6, and died there in 1905. After his return to Michigan he maintained no relation of business or friendship with Mr. Wallace or his family. His conduct had at all times been unsatisfactory to Mr. Wallace, who never expressed an intention to give him the right of an heir. The girl was a member of Mr. Wallace’s family until her marriage, and thereafter their relations were friendly and confidential. Mr. Wallace expressed his intention to make her his heir, and in 1902 presented a petition for her adoption as his daughter, which was proceeded with regularly to final decree. He died intestate in 1903.

If there was an adoption of Charles Brandies, it was effected by the agreement under which he was received from the American Female Guardian Society. The important parts of this agreement, following the recital that Charles Brandies had been surrendered by his parents to the society, and that William Wallace had applied to the managers “ to put out and place the said child with him by adoption and as an apprentice, until said child shall arrive at the age of twenty-one years,” are That the parties of' the first part .... do put, place and bind out the said Charles Brandies as an apprentice unto the party of the second part to dwell with and serve.him from the day of the date of these presents until the said apprentice shall attain the full age of twenty-one years. During all of which time the said apprentice shall serve .... and shall honestly, orderly and obediently in all things demean ' and behave himself towards his said employer and all others. And the party of the second part doth covenant and agree .... to provide and allow unto the said apprentice .... meat, drink, apparel, and other things necessary and fit for the apprentice .... and shall cause the said apprentice to be taught and instructed .... and shall give to the said apprentice at the expiration of the said term of service a new bible, one hundred dollars in money, . . .° . and shall cause said apprentice to attend public worship .... and shall not allow the said apprentice to be absent from the service of his said master without express leave or suffer him to haunt ale houses, taverns .... but will exert his authority to cause and procure the said apprentice to behave himself in all things, as a faithful apprentice ought to do, during the term aforesaid.” It is further provided, that if the said apprentice or indenturing committee shall at any time within three months’ .... become dissatisfied with his situation or employment or the party of the second part shall at any time within that period become dissatisfied with the apprentice,” the indenture shall be canceled.

Thus far it is an indenture of apprenticeship in the ordinary form. The clause of the agreement upon which the appellant’s claim is based is as follows : “ Although the present instrument binds the above-named child, strictly as an apprentice, it is, nevertheless, the true intention of the parties of the first part to place, and of the party of the second part to receive, said apprentice as an adopted child, to reside in the family of the party of the second part, and to be maintained, clothed, educated and treated as far as practicable, with like care and kindness as if he were in fact the child of the said party of the second part.”

If the fullest meaning of which this clause is susceptible consistent with the before clearly expressed intention of the parties be given it, it refers only to the treatment of the apprentice during the term of apprenticeship. He is to be received as an adopted child would be received, to reside in the master’s family, and to be maintained and treated “ with like care and kindness as if he were in fact the child of the party of the second part.” The relation established was to end when the apprentice became of age. There is not the slightest suggestion of an intention to confer upon him any right of inheritance.

The decree of the court confirming the report of the auditor is affirmed at the cost of the appellant.


text:
    Braine v. Northern Central Railway Company, Appellant.

      Railroads — Waters—Bridging stream — Damages—Negligence.
    The right of a railroad company to build a bridge across a stream includes the right to place necessary piers on its banks and in its bed, and for the proper exercise of this right there is no liability although there may be where’ special injury results from its arbitrary, wanton, or negligent exercise.
    In an action against a railroad company to recover damages for injuries to land alleged to have been caused by negligence in the construction of a bridge pier in a stream, it is reversible error for the court to charge that although the owner of a right of way across a stream of water has a right to bridge it, he will be liable for an injury caused by any change or modification or interference with the natural flow of the water at its ordinary height or at a time of flood.
    Such an instruction is too broad in that it would permit a recovery for injuries incidentally ensuing, from the careful exercise of a legal right.
    Argued March 18, 1907.
    Appeal, No. 98, Jan. T., 1906, by defendant, from judgment óf C. P. Lycoming Co., March T., 1904, No. 73, on verdict for plaintiff in case of William W. Braine v. Northern Central Railway Company.
    Before Mitchell, C. J., Pell, Brown, Mestrezat and Stewart, JJ.
    Reversed.
    Trespass to recover damages for injuries to land. Before Hart, P. J.

      The facts appear by the opinion of the Supreme Court.
    Plaintiff presented the following points :
    1. The owner of a right of way across a stream of water has the right to bridge it, but he must so construct and maintain the bridge as not to change or modify the natural flow of the stream. And if he does interfere, to the injury of an owner, he is liable in damages. Answer: We affirm that as-a general proposition. [1]
    3. The jury are instructed that the bridge must be so constructed as not to interfere -with the natural flow of the stream, not only at its ordinary height, but also when the stream is swollen by flood, and if the jury believe that the railway company so constructed bridge eighteen as to interfere with the natural flow of the water, to the injury of the plaintiff, he is entitled to recover. Answer: This is affirmed. [3]
    Yerdict and judgment for plaintiff for $2,236. Defendant appealed.

      Errors assigned were (1, 3) above instructions, quoting them.

      Seth T. MoOormich, for appellant. —
    The gist of this action of trespass is negligence. No question arises of the liability of the defendant company for such consequential damages as might result from the non-negligent exercise of the right of eminent domain, and which could only be assessed by a jury of view; and yet by affirming the plaintiff’s first and third points, the court below instructed the jury that there could be a recovery if they found that the defendant, in the construction of the pier, interfered in the slightest degree with the natural flow of the water in the stream, even if no negligence were shown : Lauderbrun v. Duffy, 2 Pa. 398; Jutte v. Bridge Co., 146 Pa. 400; Whitaker v. Canal Co., 87 Pa. 34; Monongahela Bridge Co. v. Kirk, 46 Pa. 112; Berninger v. Ry. Co., 203 Pa. 516; Shaw v. Boom Co., 125 Pa. 324; Carr v. Northern Liberties, 35 Pa. 324; McGuire v. Lehigh Valley R. R. Co., 215 Pa. 618.

      Haines c& Peaslee, with them William H. Sjoeneer, for appellee.
    When a highwa}?-, railroad, milldam or other public work is authorized by the legislature, such work is legal, and all damages necessarily incident to such work must be recovered in the manner pointed out by the law authorizing it, and no action as for a tort will lie to recover such damages, but this rule presupposes that work will be executed in a reasonably proper and skillful manner, and with a just regard to the rights of others, and the distinction is well established that if the corporation or person owning and constructing the work does not use due care in constructing and maintaining it, it is liable to an action of tort by any person injured by said negligence : Bryant v. Bigelow Carpet Co., 131 Mass. 491; Rowe v. Granite Bridge Corporation, 38 Mass. 344; Estabrooks v. Peterborough & Shirley R. R. Co., 66 Mass. 224; Perry v. Worcester, 72 Mass. 544; Sprague v. Worcester, 79 Mass. 193; 2 Farnham on Waters & Water Rights, 619; Dorman v. Ames, 12 Minn. 451; Jutte v. Bridge Co., 146 Pa. 400; Monongahela Bridge Co. v. Kirk, 46 Pa. 112; Spencer v. Hartford, etc., R. R. Co., 10 R. I. 14; Barnes v. Boston & Maine. R. R. Co., 130 Mass. 388; Riddle v. Delaware County, 156 Pa. 643; Fick v. Penna. R. R. Co., 157 Pa. 622; Berninger v. Sunbury, etc., Ry. Co., 203 Pa. 516.
    April 29, 1907:
   Opinion bt

Mr. Justice Fell,

The defendant’s bridge over Lycoming Creek, was partly destroyed by flood in 1889. In reconstructing it about 100 feet were added to its length and this addition made necessary the building of a pier in the bed of the creek. The plaintiff’s farm land, which abutted on the creek below the bridge and adjoined the defendant’s right of way, was injured by a flood in 1901. The action was for negligence in the construction of the pier. It is alleged in the statement of claim that the overflow was caused by the building of the pier without proper care and skill obliquely to the course of the stream, which caused the natural channel to fill up and a new one to be formed, by which the water was diverted against the land of the plaintiff.

The question of fact at the trial was whether the injury to the plaintiff’s land was caused by negligence of the defendant in the location and construction of the pier. This question was properly submitted to the jury and the general charge was free from error. The learned judge, however, in affirming the plaintiff’s first and third points instructed the jury that, although the owner of a right of way across a stream of water has a right to bridge it, he will be liable for any injury caused by any change or modification or interference with the natural flow of the water at its ordinary height or at a time of flood.

This instruction was too broad in that it would permit a recovery for injuries incidentally ensuing, from the careful exercise of a legal right. In this action the defendant could be held responsible only for negligently placing the pier so that it would cause damage reasonably to be apprehended to the property of others. The right of a railroad company to build a bridge across a stream includes the right to place necessary piers on its banks and in its bed, and for the proper exercise of this right there is no liability although there may be where special injury results from its arbitrary, wanton or negligent exercise: Clarke v. Bridge Co. 41 Pa. 147; Railway Co. v. Gilleland, 56 Pa. 445; Jutte v. Bridge Co., 146 Pa. 400; Berninger v. Railway Co. 203 Pa. 516. In Clarke v. Bridge Co. 41 Pa. 147, it was said: “ But, to hold the grantee of a franchise to erect a bridge responsible for damages resulting from a mistake of judgment in locating the piers; to treat such a mistake as of course culpable negligence, is to take away from the grantee that discretion which the legislature has conferred and transfer it to the jury. Such is not the doctrine of the cases referred to. To hold it would be to submit to the jury to find what would be the best location, or rather what would not be the best, instead of leaving the decision of that question where the law has put it.”

How far the instruction complained of, in view of the general charge in which the law was correctly stated, may have influenced the jury, it is impossible to tell. Since the verdict may have been based upon it, it is necessary that the judgment should be reversed. The first and third assignments of error are sustained and the judgment is reversed with a venire facias de novo.


text:
    New York Finance Company, Appellant, v. United Security Life Insurance & Trust Company.

      Insurance — Life insurance — Endowment policy — Reinsurance.
    A life insurance company issued endowment insurance under a plan by which the insured received at once the face value of the policy, and gave to the insurance company security for the payment of ordinary life insurance premiums and interest on the moneys received. At the end of the endowment period, or the death of the insured, the latter, or his legal representatives, retained the money received, and the insurance company surrendered the security given. An applicant for such insurance was at first refused, because he was a sub-standard risk. Subsequently a policy was issued to him, and to secure the monthly payments of premiums and interest he gave his bond, and assigned a life estate which he owned. In accordance with an agreement to do so he also assigned absolutely and without conditions a life policy in another company. Held, that the policy in the other company was reinsurance, assigned as security against the sub-standard risk, and that upon the death of the insured the proceeds of the policy belonged to the company rather than to a later assignee. ■
    Argued March 26, 1907.
    Appeal, No. 101, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1904, No. 848, on case stated in suit of New York Finance Company v. United Security Life Insurance & Trust Company of Pennsylvania.
    Before Mitchell, <jji J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Case stated to determine the ownership of a policy of life insurance.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant on the case stated.

      Reynolds D. Brown, with him Malcolm Lloyd, Jr., and Ghcurles M. Burr, for appellant.
    An insurance company must either decline an applicant entirely or accept him on the ordinary basis of payment of yearly premiums and without any collateral.
    It is a contradiction in terms for a life insurance company to receive protection against the very event on the chance of which it is receiving premiums from the applicant.

      Henry LaBarre Jayne, with him Biddle c& Ward, for appellee.
    The United Security Life Insurance and Trust Company had an insurable interest in the life of Charles J. Costello to the extent of the insurance carried by it upon his life and was entitled either to reinsure his life in another company or to accept from him an assignment of a policy already issued by another company upon his life: Philadelphia Ins. Co. v. Washington Ins. Co., 23 Pa. 253; Loomis v. Eagle Life & Health Ins. Co., 72 Mass. 396; Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457; Warnock v. Davis, 104 U. S. 775; Corson’s App., 113 Pa. 438.
    No insurable interest in the United Security Life Insurance and Trust Company was required in this case, because Charles J. Costello himself insured his life in the New York Life Insurance Company, himself paid the premiums thereon out of his own property and himself directed payment of the proceeds at his death to the United Security Life Insurance and Trust Company: Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457; Scott v. Dickson, 108 Pa. 6; Cunningham v. Smith, 70 Pa. 450; Blattenberger v. Holman, 103 Pa. 555.
    April 29, 1907:
   Opinion by

Mr. Justice Fell,

The facts that appear from the case stated and the exhibits thereto are these. C. S. Costello applied to the defendant company for endowment life insurance under a plan by which the insured receives at once the face value of the policy and gives to the insurance company security for the payment at fixed periods of certain sums of money, which are made up of the usual life insurance premiums and simple interest on the money received. These payments are to continue until the end of the endowment period or the death of the insured, when the insured or his legal representatives retains the money received and the insurance company surrenders the security given. If the insured fails to pay the premiums and interest, the policy lapses and he is required to return to the insurance company the amount received, less the surrender value of the policy at the time of default.

The defendant at first refused Costello’s application on the advice of its medical examiner, but afterwards agreed to make the contract of insurance applied for, provided that he would obtain and assign to it an insurance policy of the New York Life Insurance Company for $3,000. In pursuance of this plan, the defendant company paid Costello $3,000 and he covenanted to make monthly payments of premiums and interest, and to secure the payments he gave his bond with warrant of attorney and assigned a life estate worth $1,000 a year, derived by will from his mother. He also obtained a policy of life insurance for $3,000 from the New York Life Insurance Company which he transferred to the defendant by an assignment which on its face was absolute and without conditions. Costello subsequently assigned his life estate and the policy of the New York Life Insurance Company to G. E. Hackett, who assigned them to the New York Finance Company, the plaintiff in this action.

Costello paid the interest on the money received and premiums on both policies from their date, October 26,1898, until his death in May, 1904, when the defendant canceled his bond but claimed the insurance money due by the New York Life Insurance Company. _ The controversy relates to the right to this money and the decision of the case turns on the effect to be given to the assignment of the policy. If it was intended to secure the fulfillment of the condition of Costello’s bond, to pay interest and premiums to the defendant during the life of its policy, it becomes the property of the plaintiff; if it was reinsurance, it belongs to the defendant.

The'intention of the parties must be gathered from their acts. The transaction was not the loan of money and the giving of collateral security for its repayment. It was an insurance differing from the ordinary endowment insurance in the respect before mentioned, and the only difference between the policy issued and that in general use was in the provisions to secure the payments stipulated for, which were necessary because of the special plan of insurance. Costello was under no obligation to return the money received. The condition of his bond was that he should pay interest and insurance premiums, and to secure these payments he. assigned his life estate. This assignment was provided for by the policy, but no mention is made in it of other insurance to be obtained. If the risk had been one the defendant was willing to accept, the transaction would have ended with the giving of the bond, the assignment of the life estate, and the issuing of the policy.

But Costello was what is known as a sub-standard risk. The expectancy of his life was equal to that of a much older person or of one engaged in a hazardous occupation, and the defendant was unwilling to insure him. It finally agreed to issue its policy to him on condition that he would obtain and assign to it the policy of another insurance company. The purpose in requiring this policy could not have been to secure the payment of interest and premiums during Costello’s life. This had already been secured to the defendant’s satisfaction. If he defaulted in his payments, its policy lapsed and it could have recourse to his bond and sell his life estate. "What it insisted upon was, not to be secured against a lapse of the policy, a risk it was willing to assume, but to be insured against the risk of sub-standard insurance; not against the risk of his failure to pay if living, but that of his death at a period earlier than the usual expectancy of the life of a person of his age. The policy of the New York Life Insurance Company was therefore not a pledge to secure the fulfillment of Costello’s bond, but a reinsurance of his life for the benefit of the defendant.

The judgment is affirmed.