author: Mr. Justice Brown,

text:
    Commonwealth, Appellant, v. Mackey.

      Taxation — Collateral inheritance tax — Illegitimates—Acts of May 6, 1887, P. L. 79, and July 10, 1901, P. L. 639 — Constitutional law — Title of statute.

    Under the Act of July 10, 1901, P. L. 639, entitled: “An Act to regulate and define the legal relations of an illegitimate child, or children, its or their heirs, with each other and the mother and her heirs,” an illegitimate child inheriting property from its mother is under no liability to pay a collateral inheritance tax thereon.
    The title of the act of 1901, gives sufficient notice of exemption from collateral inheritance tax of estates passing from mothers to their illegitimate children.
    Argued Oct. 14, 1908.
    Appeal, No. 65, Oct. T., 1908, by defendant, from judgment of C. P. Butler Co., March T., 1908, No. 226, on case stated in suit of Commonwealth v. E. Mackey.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine liability for collateral inheritance tax. Before Galbreath, P. J.
    The opinion of the Supreme Court states the case.
    The court entered judgment in favor of the defendant.

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

      Thomas H. Greer, with him John B. Greer and John M. Greer, for appellant.
    He who is allowed to take for nothing a portion of a dead man’s estate, shall not be heard to complain simply that he is not given it all: Mixter’s Estate, 28 W. N. C. 182; Com. v. Gilpin, 3 Pa. Dist. Rep. 711; Finnen’s Est., 196 Pa. 72.
    Bastards, therefore, not being entitled under the common law to any inheritance, they are restricted to such provisions as the legislature has seen fit to make: Kennedy’s Est., 27 W. N. C. 254; Grubb’s App., 58 Pa. 55; Woltemate’s App., 86 Pa. 219; Physick’s Est., 2 Brewster, 179; Galbraith v. Com., 14 Pa. 258; Com. v. Stump, 53 Pa. 132; Com. v. Fergeson, 137 Pa. 595.

      W. D. Brandon, with him A. E. Reiber, for appellee.
    Appellee contends that this case falls within the provisions of the act of July 10, 1901, under which it is claimed he is entitled to the exemption, and the estate devised to him by his mother, is free from collateral inheritance tax under the provisions of said act: Killam v. Killam, 39 Pa. 120; Com. v. Ferguson, 137 Pa. 595; Com. v. Stump, 53 Pa. 132; Gilmore’s Est., 31 P. L. J. 113; Com. v. Henderson, 172 Pa. 135.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

Sarah Mackey died June 4, 1902, the owner of real estate which she devised to the appellee, her natural son. The commonwealth’s claim to collateral inheritance tax upon this devise is based upon the Act of May 6, 1887, P. L. 79, which imposes such tax upon all estates passing under the intestate laws or by devise to any person or persons “other than to or for the use of father, mother, husband, wife, children and lineal descendants born in lawful wedlock, or the wife, or widow of the son of the person dying seized or possessed thereof.” The appellee was not born in lawful wedlock, and but for subsequent legislation removing from him the taint of illegitimacy as to his mother, the commonwealth would take from her devise to him, as from one to a stranger to her blood, the tax imposed by the statute.

A child born out of lawful wedlock may not know its father, but always knows its mother, and instead of the harsh rule of the common law, denying it the right to inherit, and recognizing only such rights as it can acquire, our statutes have humanely given it inheritable blood from the mother. For more than fifty years an illegitimate child and its mother have had capacity to take or inherit from each other. Recent legislation has gone still farther, and, by the Act of July 10, 1901,. P. L. 639, entitled: “An act to regulate and define the legal relations of an illegitimate child, or children, its or their heirs, with each other and the mother and her heirs,” it is provided that illegitimate children shall take and be known by the name of their mother and the common-law doctrine of nullius filius shall not apply as between the mother and her illegitimate child or children; that the mother and her heirs, and her illegitimate child and its heirs, shall be mutually liable one to the. other, and shall enjoy all the rights and privileges one to the other, in the same manner and to the same extent as if the said child or children had been born in lawful wedlock; that the mother of an illegitimate child, her heirs and legal representatives, and said illegitimate child or children, its or their heirs and legal representatives, shall have capacity to take or inherit from or through each other personal estate, as next of kin, and real estate as heirs in fee simple, or otherwise, under the intestate laws of this commonwealth in the same manner and to the same extent, subject to the distinction of half-bloods, as if said child or children had been born in lawful wedlock; and the expressed intention of the legislature is to legitimate an illegitimate child and its heirs as to its mother and her heirs.

One of the rights of a child born in lawful wedlock is to inherit property from its mother or to take a bequest or devise from her free from any collateral inheritance tax, and all the rights and privileges of such a child are expressly given by the act of 1901 to a child whose mother was never wedded to its father. Not only are all the rights and privileges of a child born in lawful wedlock conferred upon an illegitimate child, as between it and its mother, but these rights and privileges are to be enjoyed “in the same manner and to the same extent, as if the illegitimate child had been born in lawful wedlock.” If from the devise to this appellee the commonwealth may take five per cent, of its appraised value, will he take it as he would take it if he had been born to his mother in lawful wedlock? Will his right to it be the same? Will he be permitted to exercise one of the rights and privileges of a child born in lawful wedlock “in the same manner and to the same extent” as if he had been so born? But one answer can be made to these questions. By the act of 1855 an illegitimate child could inherit from its mother, subject to the payment of collateral inheritance tax, and the act of 1901 was not needed to give it that right. The expressed purpose of the act is to legitimate an illegitimate child as to its mother, and, as a proper, logical and humane incident to such legitimation, to confer upon such child every right and privilege enjoyed by a child born to wedded parents. Its terms are so free from ambiguity and doubt, and the intention of the legislature is so clearly expressed, that we need not notice the authorities cited by counsel for appellee, that a law imposing taxes like this is to be construed in favor of the subject.

The view we have expressed as to the effect of the act of 1901 upon the commonwealth’s claim to a tax upon the devise to the appellee was entertained by our predecessors in Commonwealth v. Stump, 53 Pa. 132, when a special act of assembly was before the court legitimating children and conferring upon them all the rights and privileges of children born in lawful wedlock. The defendants in error in that case, George Humphrey Stump and Abraham Harrison Stump, were two sons of Jane Pearson, who had been the housekeeper of their reputed father, Abraham Stump. Some time after their birth their mother and reputed father were married. He died in May, 1853, and by his will, executed in the preceding month, devised and bequeathed all of his estate, except two small legacies, to his wife and the above-named two sons. By his marriage to their mother they were not legitimated, for no statute up to that time had so provided. On April 28, 1854, about a year after the father’s death, an act of assembly was passed, conferring upon the said George Humphrey Stump and Abraham Harrison Stump, “the illegitimate sons and only children of Abraham Stump and Jane, his wife, of the township of St. Thomas, in the county of Franklin, who were born before the marriage of their said named parents, all the rights, privileges, benefits and advantages of legitimate children,” and rendering them “capable in law to inherit and transmit any estate whatever as fully and completely, to all intents and purposes, as if they had been born in lawful wedlock.” These words are no more comprehensive than those of the act of 1901. The claim made by the commonwealth for collateral inheritance tax upon the devise to the two sons by their father was allowed, because at the time it took effect they were illegitimate children and not within the exempting clause of the collateral inheritance tax act of April 7, 1826, which was then in force. But, in allowing the claim of the commonwealth, Woodward, C. J., said: “The Act of Assembly removed the taint from their blood for all ordinary purposes, but not so as to exempt their estate from the Collateral Inheritance Law, which in terms includes lineal descendants not born in lawful wedlock, as well as collateral heirs or devisees. Had the legitimating act been passed before the devise took effect, the devisees would, I take it, have held the estate exempt from the Collateral Inheritance Law, for they would have been as capable in law of taking as if they had been born in lawful wedlock, but their estate vested at the death of the testator, which was in May, 1853, and if illegitimate then, the Commonwealth’s right to the tax vested then also.”

Objection is made that the title to the act of 1901 gives no notice of exemption from collateral inheritance tax of estates passing from mothers to their children legitimated by it. This exemption, as was properly held by the learned judge below, is the result of the act, and the constitutional requirement is not that the title must set forth what will legally and logically follow as a consequence of the proposed legislation. The title to the act of 1901 gave notice that it was for the purpose of regulating and defining the legal relations between an illegitimate child and its mother. The words used in declaring what these relations now are would be meaningless if they did not carry with them the exemption which the commonwealth would deny to the appellee.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Titley, Appellant, v. Craig.

      A ction — A ssumpsit — Ejectment—Gas rental — Nonsuit.
    Where in an action of assumpsit to recover rental for a natural gas well, it appears that there is no privity of contract between the plaintiff who is the owner of the land, and the defendant who is operating the well, a nonsuit is properly entered. In such a case the plaintiff's remedy is an action of ejectment in which the title can be properly tested.
    Argued Oct. 14, 1908.
    Appeal, No. 79, Oct. T., 1908, by plaintiff, from order of C. P. Butler Co., Sept. T., 1907, No. 1, refusing to take off nonsuit in case of John W. Titley v. H. C. Craig.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover gas rentals. Before Galbreath, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      H. B. Coen, with him John M. Greer, John B. Greer and Thomas H. Greer, for appellant-

      W. D. Brandon, with him J. O. Campbell, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit to recover gas rentals for four years, aggregating $1,000, alleged to be due under the gas lease from Titley, the plaintiff, to Barnhart & Pitts, dated June 6, 1902, The trial below properly resulted in a nonsuit, and the plaintiff has appealed.

By his deed dated October 9, 1890, Souder, the owner of the farm, sold to John Horner and H. C. Craig, his interest in. gas well No. 6 on the “Garden Patch” as long as gas was found in paying quantities. Horner’s interest subsequently became vested in Craig who, by his agreement, dated May 3,1902, sold “one drilled hole known as Garden Patch well No. 6, situate on the John Titley farm,” together with the casing to Barnhart & Pitts with a provision in the agreement that Barnhart & Pitts were to drill the hole to lower sands, and if they failed to get gas or oil in paying quantities, Craig was to have the privilege of purchasing back the hole and casing. Barnhart & Pitts drilled the hole deeper, but failed to secure gas in paying quantities. They thereupon, by a writing on the back of the original agreement, reciting that they had drilled the well to a lower sand and had “failed to procure a sufficient volume of gas to warrant us in marketing the same,” reassigned and transferred “the above-named Garden Patch well No. 6” to Craig. With the exception of a short time during which Barn-hart & Pitts were in possession of the well Craig has been in continuous possession since his lease from Souder in May, 1890, and has taken the gas from the well, for which this suit is brought, under and by virtue of the authority contained in that lease.

By an agreement dated March 31, 1902, Titley leased to Barnhart & Pitts for oil and gas purposes the 250 acres of land which was formerly owned by Souder, excepting “Garden Patch well No. 6,” and it was agreed that the lessees should clean out and drill an old abandoned well from the third to and through the fourth sand. Titley was to receive one-eighth of the oil and one-eighth of the money received for gas if oil and gas were found in paying quantities and utilized off the premises. After Barnhart & Pitts had purchased Craig’s interest in well No. 6, they secured from Titley another lease, dated June 6, 1902, covering the entire farm except five acres, but including the “Garden Patch well No. 6” which had been excepted from the former lease. Titley was to receive $250 per annum for each gas well and one-eighth of the oil and a certain working interest in the lease if gas or oil was procured in paying quantities. They were also to drill an old well on the premises from the fourth to and through the “Speechley” sand. Subsequent to this lease Barnhart & Pitts agreed with Titley that they would drill the “Garden Patch well No. 6” deeper instead of the old well mentioned in the former lease. As we have seen, Barnhart & Pitts drilled “Garden Patch well No. 6” deeper, and failing to secure gas or oil in paying quantities, retransferred the well to Craig.

This very brief statement of the material facts shows that there was no privity of contract between Titley and Craig which would enable the former to maintain assumpsit for the oil rentals due from Barnhart & Pitts under the Titley lease of June 6, 1902. Craig does not hold under that lease nor has he operated the premises for oil or gas under the lease. He has been in possession of the premises and has operated for gas by authority of the lease from Souder to him in 1890. It is apparent, therefore, that there is no privity existing between Titley and Craig by virtue of the contract of June 6,1902, which would authorize an action of assumpsit for gas rentals. If Craig is illegally or unlawfully in possession of “ Garden Patch well No. 6,” on Titley’s land, the latter’s remedy is an action of ejectment in which the title can be properly tested.

The judgment is affirmed.


text:
    Muntz, Appellant, v. Cottage Hill Land Company.

      Negligence — Flooding coal mine — Sinking well — Evidence—Case {or jury.

    In an action of trespass to recover damages for an alleged wrongful flooding of a coal mine, the case is for the jury, and a verdict and judgment for defendant will be sustained, where the evidence on one side tends to show that the damage was caused by the negligent way in which a water well was drilled by the defendant, while the evidence on the other side tends to show that the injury to the mine was caused by the failure of the plaintiff to leave sufficient pillars to support the roof.

      Evidence — -Rebuttal—Cumulative evidence.

    A judgment will not be reversed because the trial judge refused to admit certain evidence in rebuttal, where it appears that the subject to which the evidence related had been gone into very fully in chief, and that the rebuttal testimony would simply have been cumulative.
    Argued Oct. 15, 1908.
    Appeal, No. 120, Oct. T., 1908, by plaintiff, from judgment of C. P. Butler Co., June T., 1908, No. 66, on verdict for defendant in case of Mary K, Muntz v. The Cottage Hill Land Company of Butler, Pa., incorporated.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a coal mine. Before Galbreath, P. J. ”,
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were to various rulings on evidence and various instructions.

      S. F. Bowser, with him A. L. Bowser and W. A. McDowell, for appellant.

      W. D. Brandon, with him C. G. Christie, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

We have carefully examined the twenty-eight assignments of error filed in this case and we fail to discover any error in any of them. The case was manifestly for the jury and was submitted in a charge exceptionally clear and comprehensive, directing the attention' of the jury to every question of fact in it. The claim is for injuries caused by flooding a coal mine.

The plaintiff is the owner of fifty acres of land in Butler county under which is the Upper Freeport vein of coal which she and her husband have been operating for many years. The defendant company owns the adjacent land, and in the early part of 1905 drilled a water well on its premises, a short distance from the plaintiff’s line. The plaintiff’s claim, as laid in the statement, is based upon the negligence of the defendant company. It is averred that the defendant in drilling the well drilled it too deep, through the Mahoning sand stone into a shale that lies above the slate which serves as a roof immediately over the coal, and that the shale is of a loose nature which permitted the water to pass through it down to the slate and to weaken the strength of the covering so that it fell and caused the plaintiff’s mine to be flooded. It also averred that the defendant company knew the subterranean formations in that locality, knew that if it drilled the well in the manner in which it did that injuries would result to the plaintiff’s mine, and that after the well had been drilled and the water began to flow from it into the mine, the company made no effort to prevent it.

The defendant denies that it ’had such knowledge of the subterranean formations that would lead it to believe that drilling its well in the manner it did would result in water flowing into the plaintiff’s mine, that the water which accumulated in the well did not flow into the plaintiff’s mine, and was not the cause of 'any injury to her mine and that after the plaintiff filed a bill in equity to compel the defendant to plug or close its well, it did fill the well with concrete to the depth of about seventy feet which would shut off the flow of any water from the well. It is also claimed on the part of the defendant company that if the roof of the mine was broken, it was caused by the failure of the plaintiff in her mining operations to leave sufficient support or pillars, and also that if any water flowed into the mine through a break in the roof it came from some or all of several wells that had been drilled by other persons in that locality.

These were the questions presented for the consideration of the jury. The court in its charge directed attention to the several questions presented by the pleadings and called the attention of the jury to the evidence bearing upon each question. He instructed the jury, too favorably to the plaintiff, that the defendant company would be chargeable with those things it actually knew or with such knowledge as was reasonably acquirable in regard to the effect of drilling the well, that the company was responsible if they knew or should have known that the water would be lost and injure the plaintiff’s mine if the well was drilled below a certain point. The evidence showed the different strata through which the well was drilled and their character, and the court left it to the jury to say whether the defendant should have had' such knowledge of the character of the strata as would lead the company to believe that the water might flow from the well into the plaintiff’s mine. The judge told the jury that if such was the character of the strata and the fact was of common notoriety or generally known, “the company would be chargeable with it; if not they would not be chargeable, and in the absence of common knowledge of it they would only be charged with negligence in that respect if the knowledge was brought home to them or in- some way they were put upon their notice of those things.” The defendant claimed and introduced evidence to show that the injury to the plaintiff’s mine was caused by the failure in operating the mine to leave sufficient supports or pillars to sustain the roof, and that the roof of the mine fell by .reason of the insufficiency of such supports and not by its being weakened by water flowing from its well. After referring to the testimony bearing upon the questions submitted, the court said: “Now, gentlemen, if, after having so considered all the testimony on either side, you conclude that there was no negligence or that the trouble does not come from the defendant company’s wejl, then, in either event, you will find a verdict for the defendant. If you, however, find that the trouble is due to the negligence of the defendant and that it was due to water coming from their well and due to their negligence alone, without any negligence on the part of the plaintiff in the care that was being taken of the shaft or well on her place, then, gentlemen, it would be your duty in that event, to find for the plaintiff.”

The plaintiff is not relying here on her common-law right to lateral support of her premises, and hence that question does not arise in the case. Authorities are cited to sustain such right, and the plaintiff, in her printed brief, says: “ Under the authorities in a case like this, there is some doubt as to whether negligence on part of the defendant is a necessary element in fixing liability.” But as we have said that question is not in the case. The plaintiff is confined to the cause of action set forth in her statement, which avers that the injury to her mine was caused by the willful and negligent conduct of the defendant company. Hence, she must, to support her claim in this action, show that her injuries were produced by the negligent conduct of the company.

. The assignments alleging error in parts of the charge are entirely without merit. The charge, as we have said, was amply sufficient to enable the jury to have a clear and comprehensive view of every question of fact to be determined by them. It was supplemented by the court’s answers to the numerous points presented on both sides of the case. The plaintiff, therefore, got the benefit not only of a very clear and full charge but also of adequate instructions in the answers to the several points. The plaintiff in her fifth and eighth points attempted to eliminate the element of negligence and have the jury determine the defendant’s liability in the case under the common law governing the rights of adjacent owners. This, as we intimated above, she could not do under the pleadings in the case and the court very properly so ruled.

The assignments alleging error in the court declining to hear certain evidence in rebuttal relative to the character of the pillars or supports in the mine cannot be sustained. The subject had been gone into very fully in chief and the testimony would simply have been cumulative. The plaintiff had called eight or ten witnesses who had examined the mine and who testified as to the character of the pit, the supports or pillars, and the general condition of the mine. The court, however, did not exclude the entire offer of evidence proposed in rebuttal, but permitted the plaintiff to rebut the evidence of the defendant offered to show the percentage of coal and the size of the pillars necessary to be left to secure the safety of the mine. This gave the plaintiff ample opportunity to meet anything introduced by the defendant company and not anticipated by her in chief.

Some testimony was attempted to be elicited by the plaintiff from witnesses who were manifestly not qualified to speak on the subject. An attempt was also made by the plaintiff to have certain witnesses perform the duty of the jury in drawing conclusions from the evidence in the case. The ruling of the learned court in these instances was correct, and the assignments of error covering them are not sustained.

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    King v. McClure Company, Appellant.

      Negligence — Master and servant — Fell'ow servant — Vice principal— Safe place of employment.

    In an action by a workman against his employer to recover damages for personal injuries sustained while helping to put in place a heavy piece of machinery, the plaintiff is not entitled to recover where it appears that the place where the accident occurred was perfectly safe, and that the accident was due to the negligence of a master mechanic who directed the placing of the machine and participated with the plaintiff and other workmen in the performance of the work.
    It is the character or nature of the act of the employee which causes the injury that determines the liability of the employer. If the act or thing done resulting in the injury to the employee was a duty imposed upon the employer, then the negligent performance of it by an employee of any grade, will render the employer liable, but if such act was in the line of the ordinary workman’s duty as an employee, then the employer is not responsible, though the offending employee was a vice principal in charge of the work generally.

      There is no rule of law which' requires an employer by himself or representative, to be always present to ward off every transient peril. Per Stewart, J.
    Argued Oct. 15, 1908.
    Appeal, No. 17, Oct. T., 1908, by defendant, from judgment of C. P. Washington Co., Feb. T., 1907, No. 316, on verdict for plaintiff in case of E. W. King v. The McClure Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before McIlvaine, P. -J.'
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,342. Defendant appealed.

      Error assigned was in giving binding instructions for defendant.

      John II. Murdoch, with him Edgar B. Murdoch, for appellant.
    We think it was clearly the duty of the court in this case to determine, without reference to the jury, whether or not Johnson was a vice principal: Vant v. Roelofs, 217 Pa. 535.
    It is the duty of the master to provide his servants with a safe place in which to work;-having done this his whole duty is performed: Ricks v. Flynn, 196 Pa. 263; Casey v. Paving Co., 198 Pa. 348; Ross v. Walker, 139 Pa. 42; Lehigh Valley Coal Co. v. Jones, 86 Pa. 432; Miller v. American Bridge Co., 216 Pa. 559.

      James P. Eagleson, for appellee,
    cited: Ricks v. Flynn, 196 Pa. 263; Hughes v. Leonard, 199 Pa. 123; Butterman v. Construction Co., 206 Pa. 82; Geist v. Rapp, 206 Pa. 411; Lillie v. American Car & Foundry Co., 209 Pa. 161; Schiglizzo v. Dunn, 211 Pa. 253; Weller v. Mfg. Co., 28 Pa. Superior Ct. 102; Gilber v. Elk Tanning Co., 221 Pa. 176.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

The plaintiff received his injuries while assisting other workmen in the employ of the defendant company to put in place a large iron roller, a necessary part of the machinery in a tin plate mill, which had been temporarily removed for purposes of repair. The roller, by means of a crane from which it was suspended, had been swung into a position where all that remained to be done was to place the spindles .at either end of the roller in their bearings or housings. As then suspended from the crane, the roller was immediately over a hole or pit some two or three feet lower than the floor surface of the building. The bearing or housing at one side was fixed and permanent; the other was movable and adjustable. The latter was so placed that it was not necessary to elevate the end of the roller to obtain insertion of the spindle in it; but elevation of the roller was necessary in order to rest its spindle in the fixed bearing. The end next the movable bearing was released from the crane and so much of the roller was allowed to rest upon an iron bar or rail laid across the pit. Unfortunately — and this is the negligence charged — the iron bar or rail instead of being placed at the end of the pit where simply the released end of the roller would have rested on it, was placed about the middle, with the result that when the other end of the roller was being elevated so that its spindle might be inserted in its bearing, the weight of the roller was applied rather to the side of the rail, and this lateral pressure forced the rail back along the walls of the pit on which it rested to where the plaintiff was standing in the pit, guiding the end that was being elevated. The rail caught his leg while he was attemping to escape, and crushed it. The work of putting the roller in place was done under the direction of a workman named Johnson, who was a master mechanic, and who was himself assisting in the work. The jury found Johnson to be a vice principal, and we are required to so regard him. In our statement of the facts we have indicated the negligent act; it was the placing of the iron rail on which the roller was allowed to rest nearer the middle than the end of the pit; this was the sole cause of the accident; and the sliding of the rail from the pressure of the weight of the rolls as one end was being elevated was a result which ought to have been foreseen. What had Johnson, the master mechanic or foreman, to do with this, as vice principal? Suppose it was his own hand that put the rail where it was; and assume further that he was negligent in attempting to lift into place one end of the roller with the other end no better secured than it was; and that this negligence contributed to the accident; how can either of these considerations impose liability upon this defendant? Johnson was vice principal only in the sense that duties were delegated to him which were a personal and absolute obligation resting on the employer. It is not pretended that his control of the particular department in his charge was so absolute as to be independent of the oversight and direction of his employer. He was under direction of a manager and superintendent of the mill. The only duty delegated to him which we are called upon to consider here was the duty to provide a reasonably safe place for the workmen in which to do their work; no other is- involved. Did he do this, as vice principal? Or rather was there any evidence in the case which would warrant the inference that he had failed in this regard? If none, it follows that liability for the accident was improperly imposed on the employer. There is not a suggestion or hint in the evidence, the charge of the court, or the argument by counsel for the appellee that the place where the plaintiff received his injuries was unsafe when he went to occupy it, which must have been within an hour at most of the accident. Undoubtedly the obligation remained on the vice principal to maintain the place in a condition of safety so long as the workmen were there employed. But in no respect whatever, so far as regards those physical features which the employer is bound to provide and look after for the safety of his workmen, is there even the slightest change shown to have occurred. The place remained safe except as the workmen there employed were exposed to the dangers necessarily incident to the kind of work they were doing. It was in connection with this feature of the case that the mistaken view prevailed to sustain the verdict. We quote from the opinion filed by the learned trial judge in overruling the motion for judgment non obstante. “The duty was upon him (the vice principal) to assign him (the plaintiff), a place to work that was not only reasonably safe but that would continue to be safe until the roller was in position in the housing at either end. There was evidence which if believed tended to establish the plaintiff’s contention that Johnson made the place in which the plaintiff was assigned to work unsafe and against the protest of the plaintiff, and made it unsafe so suddenly that he did not have time to escape. The true meaning of the rule that the employer must furnish the employee a safe place to work, is that the place is to be safe until the work he is assigned to do is complete or finished in the manner that the employer or his agent plans to have it done. The plaintiff when he first took his position had a right to presume that the work would be done so that the place in which he worked would not become dangerous, but Johnson, the agent of the employer, directed the work so that the place where the plaintiff was did become not only dangerous, but the dangerous situation was so suddenly created by Johnson that the plaintiff did not have time to save himself from the danger. This logically was the same as giving the plaintiff originally, an unsafe place in which to work. . . . We recognize the fact that Johnson was working with the plaintiff, King, to accomplish a common purpose and that they were fellow-workmen, and that the negligent act done or caused to be done by Johnson was his personal negligence, yet there was in our opinion sufficient evidence to submit the question to the jury whether or not he was a vice principal when he did that act.” The error here is in -attributing the accident to the place. Of course, the plaintiff would not have been injured as he was if he had not been in the place where the work was being done. Nor would the man who received a hurt from a falling brick as he walked along the pavement have-been injured in that way had he stayed at home. In the latter case, the accident would certainly not be referred to the pavement which in no way contributed to the injury. Why then should plaintiff’s injury be referred to the place where he was working, when the established proximate cause of the accident was a human agency wholly unrelated to the place, except that it happened there to be operated? Is it any answer to say that the place was made dangerous because of the manner in which Johnson was directing the work? Admitting that he employed a dangerous method, that circumstance in no way indicates any insufficiency in the place itself as a contributing element. The plain, unmistakable fact — we are speaking of what was found by the jury — is that Johnson’s negligence was the proximate cause of the accident. It is just as clear that no reasonable provision in the way of protection to the workmen in connection with the place itself was omitted. Now was Johnson acting in the line of his vice principalship when directing how the work was to be done and assisting in it himself? The duty delegated to him was to provide a reasonably safe place, and to see that it was maintained in that condition. This he did. As to everything else he was a fellow workman with the plaintiff. Neither of the specific acts which, because improperly done, are to be considered as having produced the accident — the placing of the iron rail beneath the rollers and the hoisting of the end of the roller to its bearing — was within the personal duty of the employer; they were matters of detail in the execution of the work. There is no rule of law which requires the employer, by himself or representative, to be always present to ward off every transient peril. The learned trial judge, in the opinion from which we have quoted, recognized that Johnson was working with the plaintiff to accomplish a common purpose; that they were fellow workmen, and that the negligent act done or caused to be done by Johnson was his personal negligence. These facts appearing, as they unquestionably do, were sufficient to defeat the plaintiff’s cause of action. The law governing cases of this kind is nowhere more clearly and concisely stated than in Ricks v. Flynn, 196 Pa. 263, where our Brother Mestrezat thus expressed it: It is the character or nature of the act of the employee which causes the injury that determines the liability of the employer. If the act or thing done resulting in the injury to the employee was a duty imposed upon the employer, then the negligent performance of it by an employee of any grade, will render the employer liable, but if such act was in the line of the ordinary workman’s duty as an employee, then the employer is not responsible, though the offending employee was a vice principal in charge of the work generally.” To the same effect is Casey v. Paving Company, 198 Pa. 348, and Miller v. American Bridge Company, 216 Pa. 559. We are of opinion that it was an error to refuse the motion for judgment non obstante. It is unnecessary to consider the other assignments.

The judgment is reversed, and it is ordered that judgment be entered in the court below for the defendant non obstante veredicto.


author: Mr. Justice Elkin,

text:
    Hamory v. Pennsylvania, Monongahela & Southern Railroad Company, Appellant.

      Railroads — Eminent domain — Evidence as to value of land — Division of land into lots.

    While it is proper in railroad condemnation proceedings, to take into consideration the use to which the land is best adapted, it is improper to determine the value of the whole tract by computing the number of lots it can be divided into, what each lot is worth, and the value of the whole tract estimated on this basis.
    Practice, C. P. — Trial—Improper admission of evidence — Charge.
    Where evidence has been improperly admitted which tends to prejudice the mind of the jurors, the error is not cured by an instruction in the charge to disregard it or to withdraw it from their consideration.
    Argued Oct. 15, 1908.
    Appeal, No. 41, Oct. T., 1908,- by defendant, from judgment of C. P. Washington Co., Nov, T., 1905, No. 112, on verdict for plaintiff in case of G. Y. Hamory v. Pennsylvania, Monongahela & Southern Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter,Elicin and Stewart, JJ.
    Reversed.
    Appeal from award of jury of view. Before Taylor, J.
    At the trial when Osman McCarty, a witness for the plaintiff, was on the stand, he was asked this question:
    “Q. Mr. McCarty, where do you live? A. I live in Millsboro. Q. And do you know the Hamory property? A. Yes, sir. Q. Are you in business in Millsboro, Mr. McCarty? A. Yes, sir. Q. How long have you known the Hamory property? A. I have known it ever since I have been in Millsboro, about twenty years. Q. Mr. McCarty, have you such a knowledge of the value of real estate- in that neighborhood that would enable you to express an opinion as to the fair market value of the Hamory property in the fall of 1905, before the railroad went through there? A. I think so. Q. What was its value?”
    Mr. Irwin: I want here to ask the witness a few questions.
    Preliminary cross-examination.
    Mr. Irwin: “Q. Mr. McCarty, have you made up your estimate of what that property was worth just before the railroad was located by estimating what it would bring if it had been laid out in building lots and all the lots had been sold at what you think lots were worth there? A. Yes, sir.”
    The defendant objects to the witness expressing his opinion as to the market value of the property immediately before the location of the railroad, for the reason that he has stated that that opinion was formed by estimating the number of- lots in the Hamory land, and what it would bring if all the lots were sold at what the witness regards as a fair value of the lots, which is not the proper way to estimate the market value of the Hamory property as a whole.
    The Court: Well, we had better have this question settled now.
    Mr. Birch: I will ask the witness one question.
    “Q. What is the most available purpose that that lot is fit for? A. For building purposes.”
    The Court: Where they ask a witness if he is able to express an opinion as to the fair market value of the property as a whole, where he says he knows it, it is no matter by what method he makes up that estimate, if it is based on the market value in his judgment; the weight of his opinion will be for the jury. The objection is overruled and the offer admitted and a bill sealed for the defendant. [1]
    Direct examination resumed.
    Mr. Birch: “ Q. What in your opinion, Mr. McCarty, was the fair market value of that property immediately before the railroad took it? A. About $25,000. Q. Havé you seen the railroad, how it affects it through there? A. Yes, sir; I see what — Q. What effect does it have on the property? A. Well, I would think it would depreciate the value of the property nearly the one-half.”
    Verdict and judgment for plaintiff for $8,400. Defendant appealed.

      Error assigned was ruling on evidence, quoting the bill of exceptions.

      R. W. Irwin, with him Jas. A. Wiley and A. T. Morgan, for appellant.
    The testimony in question was not admissible: Penna. Schuylkill Valley R. R. Co. v. Cleary, 125 Pa. 442; Gorgas v. Phila., etc., R. R. Co., 215 Pa. 501.
    That the charge of the court did not remove the injury which the defendant had sustained by the improper admission of that testimony is settled by the case of Erie and Wyoming Valley Railroad Company v. Smith, 125 Pa. 259.

      James I. Brownson, with him T. F. Birch, for appellee,
    cited: O’Brien v. Ry. Co., 194 Pa. 336; Cox v. R. R. Co., 215 Pa. 506; Wilson v. Equitable Gas Co., 152 Pa. 566.
    January 4, 1909:
   Opinion by

Mr. Justice Elkin,

In a proceeding to assess damages for lands appropriated for railroad purposes under the right of eminent domain, a witness produced by the landowner, was asked on preliminary cross-examination if his estimate of what the property was worth at the time of the entry, was based upon what it would bring if it had been laid out in building lots and all the lots had been sold at what the witness thought they were worth. The witness having answered in the affirmative, objection was made that he was not qualified to express an opinion, because his method of estimating the market value of the whole tract was improper and not in accordance with the rule of law governing such cases. The court admitted the testimony and this ruling is the basis of the only assignment of error. While it is proper to take into consideration the use to which the land is best adapted, it is improper to determine the value of the whole tract by computing the number of lots it could be divided into, what each lot was worth, and the value of the whole tract estimated on this basis. This is not a proper method of arriving at the value of the whole tract as has been repeatedly ruled by this court: Penna. Schuylkill Valley Railroad Company v. Cleary, 125 Pa. 442; Gorgas v. Railroad Company, 215 Pa. 501. Nor was this error corrected by the learned trial judge in his charge to the jury. Where evidence has been improperly admitted which tends to prejudice the minds of the jurors, the error is not cured by an instruction in the charge to disregard it or to withdraw it from their consideration: Delaware & Hudson Canal Co. v. Barnes, 31 Pa. 193; Penna. Railroad Co. v. Butler, 57 Pa. 335; Huntingdon, etc., Railroad & Coal Co. v. Decker, 82 Pa. 119; Erie, etc., Railroad Co. v. Smith, 125 Pa. 259.

Assignment of error sustained and a venire facias de novo awarded.


author: Me. Justice Mestrezat,

text:
    Scott, Appellant, v. Donora Southern Railroad Company.

      Road law — Plan of lots — Dedication of street — Acceptance by the public— Railroad — Eminent domain — Damages.
    While title by adverse possession cannot be acquired in land which has been dedicated to the use of the public for the purpose of a street, the rule will not obtain unless the dedication has been accepted.
    Where an owner of land lays the land out in a plan of lots and records the plan, but the streets indicated are never accepted by, open to, or used by the public, and the owner and his successors in title for over fifty years keep the land fenced and cultivated, a railroad company, in condemning a portion of the land, cannot claim that it is not liable for the depreciation in value of the whole of the tract because of a division of the tract by a street or streets.
    In such a case it is immaterial if the owner of the land within twenty-one years prior to the condemnation proceedings described the land in partition proceedings and in an affidavit filed under the Act of May 31, 1901, P. L. 352, by reference to the recorded plan of lots.
    Argued Oct. 15, 1908.
    Appeal, No. 53, Oct. T., 1908, by plaintiff, from judgment of C. P. Washington Co., Nov. T., 1902, No. 129, on verdict for plaintiff in case of A. D. Scott v. Donora Southern Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from award of jury of view. Before Taylor, J.
    At the trial when plaintiff was on the stand the following offer was made:
    It is proposed to prove by the witness on the stand that from 1874 down to the present time, and prior to 1874, this property was in one inclosure, bounded on the south by Market street and on the east by the Monongahela river; that he has had- exclusive and uninterrupted possession of it since 1874; that the witness has known this property for over fifty years and that during all the time he has known it no street or alley has been opened through any part of this tract. To follow this by evidence showing that from 1874 down to the time of the appropriation by the defendant company in the spring of 1902 the plaintiff had used, occupied and farmed the whole of this tract north of Market street and between Second street and the Monongahela river. To show that in the fall of 1902 the defendant company appropriated a right of way through this ground along the river front and constructed thereon its railroad; and to follow that by evidence showing that the construction of the defendant company's road along the river front through the plaintiff’s property was an injury to the whole of the plaintiff’s property embraced in this suit; and to follow this by asking the witness whether or not he has sufficient knowledge or had sufficient knowledge of the market values of real estate in that neighborhood in the fall of 1902 to enable him to express an opinion as to the market value of this property immediately before the railroad was located, and then ask him to state, if he states that he has such knowledge, what its fair market value was before the railroad was located and its fair market value immediately after the railroad was located and constructed, as affected by the railroad. This for the purpose of giving the jury his estimate as to the damages sustained by 'him by reason of the location and construction of the railroad.
    Objected to for the reason that the question itself is not a proper one, as not being a true statement of the measure of damages for the jury to determine in this case; second, for the reason that on the evidence introduced by the plaintiff it shows that the property east of Second street to Front street is a part of a plan of lots laid out by one Charles DeHass and dedicated to the public or one which every lot owner on said plan would have a right of way over Front street; that the fact that Front street is an existing street on said plan is recognized by the plaintiff in the evidence offered on the part of the plaintiff in which lots Nos. 20 and 27 on said plan are recognized as fronting on Front street within a period less than the limitation; that the evidence on the part of the plaintiff has also adduced the fact that lots Nos. 20 and 27 were prior to 1895 held by him as a tenant in common with other owners there and that any possession of his would not be adverse during the joint tenancy, but that the limitation period could only begin to run after 1895; these lots Nos. 20 and 27, being situate on either side of the plot claimed by the plaintiff and both being admitted to front on Front street, would be a rededication to the other lot owners of Front street as separating it from the block in question. Also for the reason that the title offered by the plaintiff as to his ownership of the block bounded on the west by Second street and on the east by Front street, recognizes a subdivision of said block into no less than fifteen lots bisected in opposite directions by what is known as Strawberry alley and Hull alley, alleys laid out on said plan; and for the further reason that the condemnation proceedings is the taking of the whole of the lots abutting on Front street and running back to the river, and not taking any of the portion of the property described in the offer. It is objected to for the further reason that the plaintiff has not shown title to any portion of the property on which he proposes to assess damages except lots Nos. 20 and 27; and as generally incompetent and irrelevant.

      The Court: This offer as made is competent, but the plaintiff’s evidence already in the case shows as a matter of law that there was a subdivision of this property, and the objection is sustained and a bill sealed for the plaintiff. [1]
    The plaintiff proposes to prove by the witness David Sickles on the stand and other witnesses to be called, that he and they have known this property of the plaintiff’s for 'upwards of sixty years; that during all that time it has been fenced in substantially as it was in the fall of 1902 at the time the railroad appropriation was made, with a fence extending from Second street down along Market to the river bank and along Second street from Market street to the line of what is now the steel corporation’s property, and from thence on Second street down to the Monongahela river; to show that that property during all that period has been used and occupied as one entire property and that during all those sixty years no street or alley has ever been opened'through the property and that the public have never exercised any right of traveling through or over any part of this property. And this for the purpose of showing that the right of the public to use any of the streets and alleys as laid out in the DeHass plan of lots which were embraced within the lines of the plaintiff’s property had been lost by limitation at the time of the appropriation of the railroad company.
    Objected to as incompetent, irrelevant and immaterial for the reason that the plaintiff himself in his introduction of his record title has shown and admitted the user of said streets on this plot within a period of thirteen to fifteen years, and he is estopped from introducing parol evidence to alter the record, and for the further reason that nonuser by the public would not give a right against anyone by limitation.
    The Court: Objection sustained and bill sealed for plaintiff.
    Verdict and judgment for plaintiff for $5,500. Plaintiff appealed.

      Errors assigned among others were (1-4;, rulings on evidence, quoting the bill of exceptions.

      R. W. Irwin, with him Jas. A. Wiley and A. T. Morgan, for appellant.
    If no street can now be opened through this tract of land without the consent of A. D. Scott, the plaintiff, then it follows necessarily that it is one tract, and that in estimating the damages which he sustained by reason of the appropriation of the right of way by the railroad company, he was entitled to recover damages to the whole tract of land, and not simply damage to the narrow strip which lay between a street which never existed, except on paper, and the river bank: Quicksall v. Philadelphia, 177 Pa. 301; Rudolph v. Penna. Schuylkill Valley R. R. Co., 186 Pa. 541; O’Brien v. Schenley Park, etc., Ry. Co., 194 Pa. 336; Kossler v. Ry. Co., 208 Pa. 50; Cameron v. R. R. Co., 157 Pa. 617.

      T. F. Birch, for appellee,
    cited: Rudolph v. Penna. Schuylkill Valley R. R. Co., 186 Pa. 541; Kossler v. Ry. Co., 208 Pa. 50.
    January 4, 1909:
   Opinion by

Me. Justice Mestrezat,

In 1815 Charles DeHass, being the owner of a tract of land on the west bank of the Monongahela river in Washington county, laid out a plan of lots, intersected by streets and alleys, and called it West Columbia. The plan was duly recorded in the recorder’s office of Washington county. Front street extended north and south and was substantially parallel with the river. The next street west and parallel to Front street was Hull alley, and the next street west and parallel to Hull alley was Second street. These streets were intersected at right angles by Market street (farthest south) Strawberry alley, Chestnut street and Mulberry alley.

A. D. Scott, the plaintiff, obtained title to certain lots in the plan on May 8, 1893, by proceedings in partition -in the estate of Mary H. Scott, deceased. On November 25, 1901, the plaintiff filed in the recorder’s office of Washington county a statement under oath, as required by the Act of May 31, 1901, P. L. 352, in which he declared that he had acquired title in fee by twenty-one years’ adverse possession to fifteen lots in the DeHass plan, describing them by number and reference to the streets and alleys of the plan.

In October, 1902, the defendant company presented its petition to the common pleas of Washington county averring that it had appropriated for a right of way five lots of ground in the DeHass plan known as West Columbia, “reputed to belong to the defendant, A. D. Scott, and the streets and alleys abutting thereon,” and prayed for the appointment of viewers to assess the damages resulting from the appropriation of the lots. The lots, taken by the company and aggregating 0.2921 acres, were separately described and all, with possibly one exception, were contiguous and lay east of Front street and between it and the river, and between Market street on the south and Mulberry alley on the north. Viewers were appointed, March 23, 1903, and made an award in favor of the plaintiff. The plaintiff alleging that these lots were part of a larger tract of land owned by him, filed a statement of his claim in the proceedings to assess damages, and therein averred that the defendant company had entered upon and appropriated its right of way out of a piece or parcel of land described as follows: “Bounded on the South by what was known as Market street in the DeHass plan of lots of West Columbia, on the West by Second street, on the East by the Monongahela river, and on the North by property of the Union Steel Company, containing 7.5852 acres.” The statement was traversed by the defendant company which denied that the plaintiff was the owner of the property described in the statement, and averred that it had not taken or injured by its appropriation any other property of the plaintiff or reputedly his than the block of lots described in its petition for the appointment of viewers.

On the trial of the cause the plaintiff claimed title to the ground covered by the description in his statement. He claimed title to some of the lots through proceedings in partition in the orphans’ court and to the remainder of the ground by twenty-one years’ adverse possession. He alleged and offered to show that for more than twenty-one years he and those under whom he claimed had occupied the property described in the statement filed by him in the case, that they had inclosed it by a fence and had farmed the entire area, including streets and alleys, and that the streets and alleys were never accepted by, opened to, or used by the public. He therefore claimed that he was entitled to damages for the injury done to the whole tract of seven acres by reason of the appropriation for the defendant's right of way.

The defendant company denies that the plaintiff had any title to any part of the property, claimed by him, and especially the part occupied by it as a right of way. It appears that the company's appropriation, with possibly the exception of a part of a lot, lies east of Front street and occupies only the lots in the DeHass plan lying east of that street. The defendant contended, and the contention was sustained by the trial court, that in estimating the damages, the jury should take into consideration only the lots lying east of Front street, that if the plaintiff was the owner of the other lots west of that street, as claimed by him, they could not be considered in estimating the damages, that the lots east of Front street and those west of it were physically separated by that street, and therefore were not so connected or used by the plaintiff as to constitute one piece or parcel of ground entitling the plaintiff to have it all considered in estimating the damages.

The court submitted two questions to the jury: whether the plaintiff was the owner of the lots east of Front street appropriated by the defendant company for its right of way, and if so, what damages he had sustained by reason of the appropriation. The jury returned a verdict in favor of the plaintiff and judgment having been entered thereon, the plaintiff has taken this appeal.

The plaintiff, in certain offers of evidence on the trial, proposed to prove that for upwards of sixty years the land bounded on the south by Market street, on the west by Second street, on the east by the Monongahela river and on the north by the Union Steel' Company property had been inclosed by a fence, substantially as it was in the fall of 1902, at the time the railroad company made its appropriation; that the property during that period had been used and occupied as one entire property; that during that period no street or alley had ever been opened through the property within the designated boundaries and the public had never exercised any right of traveling through or over any part of it; that he had been in exclusive and uninterrupted possession of the whole of said property since 1874, and during that time had used, occupied and farmed the whole of the tract; for the purpose of showing title in him to the entire tract, and that the right of the public to use as highways any streets or alleys laid out in the DeHass plan of lots, embraced within the designated boundaries, had been lost by limitation at the time of the appropriation by the railroad company. The court rejected the testimony and ruled as matter of law that Front street as laid out and designated on the DeHass plan of lots divided the land claimed by the plaintiff into two parts or tracts, and that in estimating the damages the jury were confined to the part of the tract lying between Front street and the river.

In sustaining the objection to the plaintiff’s offers of evidence and holding that the land described in plaintiff’s statement was divided into two tracts we think the learned court erred.

The DeHass plan of lots was recorded in 1815. This was a dedication of the streets to public use and operated as a relinquishment of all claims by the owner for damages for the use of the land within the lines of the streets for street purposes. But the municipality was not compelled to accept the dedication and failing or refusing to do so and to open the streets upon the ground, they would not become public streets or highways: In re Vacation of Alley, 104 Pa. 622; Commonwealth v. Moorehead, 118 Pa. 344; Downing v. Coatesville Boro., 214 Pa. 291; Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 425. As there was no actual or implied acceptance of the dedication by the municipality, it follows that Front street, dedicated to public use by DeHass, was not a public highway in 1902 when the defendant company entered upon and appropriated the land for its right of way.

The Act of May 9, 1889, P. L. 173, 2 Purd. (12th ed.) 1875, enacts as follows: “Any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons, in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out.” The purpose of the act is to relieve land upon which streets have been laid out by the owners, but not opened or used for twenty-one years, from the servitude imposed: Quicksall v. Philadelphia, 177 Pa. 301; Woodward v. Pittsburg, 194 Pa. 193. The act declares, as will be observed, that a street dedicated to public use by the owner of the land through which it passes, if not opened to, or used by, the public for twenty-one years next after the dedication “shall be and have no force and effect.” After the statutory period, therefore, if no action has been taken to subject the street to public use, the servitude imposed by the owner upon his land for such use is removed, and the street is of no force or effect as a public highway. The land is discharged from such servitude and the dedicated portion of it has entirely lost its character as a public street.

Assuming that the plaintiff could have sustained by proof the allegations of his offer, Front street, dedicated by the owner in 1815, has never been accepted or opened to the public, and therefore the street was not a public highway at the time the defendant company made the appropriation for its right of way. The municipal authorities could exercise no authority over the strip of land dedicated; nor could an indictment be sustained for obstructing it as a public street or highway: Commonwealth v. Shoemaker, 14 Pa. Superior Ct. 194. It is, however, contended by the defendant company, and was the view entertained by the court below, that there was a re-dedication of the streets in the DeHass plan within twenty-one years of the appropriation by the description of the lots awarded the plaintiff in the partition proceedings in which they were described by reference to the streets, and also by the description of the lots in his declaration of adverse possession made and recorded by the plaintiff in 1901, in which he describes the lots by reference to the DeHass plan. But this contention is not tenable. These descriptions of the property show no intention to dedicate anew to public use the streets named in the DeHass plan, but were simply used to identify or designate the property with which the parties were dealing: Cotter v. Philadelphia, 194 Pa. 496. In that case Mr. Justice Fell delivering the opinion says (p. 497): “At the trial of this case the city sought to evade the limitation of the act of 1889 by proof that a conveyance of lots was made in 1880, in which they were described as lots marked on the plan referred to, made and recorded in 1848. This it was claimed was a new dedication against which the limitation had not run. This claim cannot be sustained. . . . The reference to the plan for convenience of description, and to the streets as boundaries, does not give rise to an implication of a new dedication of the land for streets. A dedication to the public use must rest on the intention or clear assent of the owner, and must be under such circumstances as to indicate an abandonment to the use of the community. The owner in 1880 had nothing to rededicate. The dedication in 1848 was binding on him, and continued so until the limitation of the act of 1889 relieved the land of the servitude imposed upon it.” If, as the plaintiff alleges, he is the owner of the land on both sides of Front street, his title on each side extends to the middle of the street, Paul v. Carver, 26 Pa. 223, and, assuming the facts to be as hé claims, the land is not subject to an easement for a public highway. There is therefore no physical separation of the plaintiff’s land in two pieces or tracts by a public street. We need not determine the rights of any party who may claim an easement over the land dedicated by DeHaas as Front street by reason of his being the owner of a lot in the DcHass plan. This is immaterial so far as it affects the plaintiff’s right to have the land considered as one tract in assessing damages, if, as alleged in his offers of evidence the whole tract of seven acres has, for more than half a century, been enclosed by a fence and occupied and used as one entire property. This right cannot be defeated by the simple allegation of an imaginary public street through the plaintiff’s land. It has been held that while title by adverse possession cannot be acquired in land which has .been dedicated to the use of the public for the purpose of a street, the rule will not obtain unless the dedication has been accepted: Uptegraff v. Smith, 106 Iowa, 385; Corwin v. Corwin, 24 Hun (N. Y.), 147.

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


text:
    Zollner, Appellant, v. Moffitt.

      Promissory notes — Notice of dishonor — Indorser—Evidence—Notary’s certificate.

    Where a notary certifies in the usual form of certificate that he demanded payment of the note, a copy of which is set forth in the certificate, and that payment was refused, “whereof I duly notified the maker and indorser,” it is reversible error in an action on the note, for the trial judge to submit to the jury as a fact or circumstance in the case the testimony of the notary to the effect that he had no present recollection of the indorser having been sent or given notice of the dishonor of the note.
    The Act of December 14, 1854, P. L. 724, makes the certificate of the notary prima facie evidence of the allegations set forth in it. The indorser may attack the correctness of the certificate by a denial that he ever received notice, but the mere testimony of the notary that he had no present recollection of sending or giving a notice is to be given no weight in support of the defendant's denial, if the notary does not deny the genuineness of the certificate and that he gave notice of dishonor as set forth in the certificate.
    Under sec. 96 of the Act of May 16, 1901, P. L. 194, notice of dishonor of a promissory note may be given either verbally or in writing, and if the notary certifies that he has duly notified the maker and indorser, an indorser who is sued, must- show that he has not received notice either personally or through the mail. As there is no presumption as to which way the notice referred to in the certificate was given, the question as to the manner of the notice is for the jury.
    Under sec. 105 of the negotiable instruments law due notice of dishonor is deemed to have been given when it is shown that the notice was properly addressed and deposited in the post office, whether it has been received or not.
    No special form is required by the negotiable instruments law to convey to an indorser the information that his note has been dishonored for nonpayment. The notice must identify the instrument and indicate that it has been dishonored. If the certificate contains a copy of the note and declares that payment had been demanded and refused, of which due notice was given to the indorser, the certificate meets the requirements of the statute.
    A memorandum at the bottom of a certificate of protest that the notary sent a notice of protest, is no evidence that the indorser received it, if it appears that the memorandum is not in fact a part of the certificate nor referred to in the certificate. As it is not certified in the certificate it is not evidence under the act of 1854.

      Argued Oct. 16, 1908.
    Appeal, No. 83, Oct. T., 1908, by plaintiff, from judgment of C. P. Washington Co., Feb. T., 1907, No. 60, on verdict for defendant in case of B. A. Zollner v. John H. Moffitt.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit against an indorser upon a promissory note. Before McIlvaine, P. J.
    At the trial the defendant alleged that he had received no notice of the dishonor of the note.
    The court charged in part as follows:
    Now, the defendant on the other hand denies that he ever made any admission of that kind, and he also swears positively that he never received any notice, and he also states certain facts in regard to where he was on the day that the notice ought to have been received if given as indicated by this certificate, and that it was impossible for the notary to have delivered the notice at that time, and therefore that there is some mistake here about this certificate; and then the defendant placed on the stand the notary herself who testified that she now has no recollection of delivering the notice. Of course she admits the genuineness of this certificate, and that certificate still has the force that the act of assembly gives it, but the claim of the defendant is that the notary now saying that she has no present recollection of it, is a fact, — is a circumstance, that is to be considered by the jury in weighing the direct contradiction that is here apparent between the testimony of the defendant that he never received such a notice 'and the inference that is to be drawn from this certificate that he did receive it. Now, gentlemen, we believe that this is a case that the jury must determine, it being a question of fact; and you have on the one hand the certificate, and those circumstances that I have referred to that the plaintiff claims corroborate the certificate, and then on the other hand you have the express denial of the defendant that he ever received notice, and also the circumstances that he narrates as to his whereabouts at the time he ought to have received the notice, and the testimony of the notary, and it will be for you to determine whether or not John H. Moffitt at the time specified in the act of assembly had notice of the dishonor of this note so as to make him liable, or was he discharged from liability as an indorser by reason of not having received notice that the maker had not paid it when it was due?
    Defendant presented these points:
    1. The certificate of the notary public who protested the note on which suit has been brought in this case, raises no presumption that notice of protest was mailed to John H. Moffitt to his address. Answer: That is affirmed. The presumption would be that notice of protest was given according to law, but not that notice of dishonor was duly addressed and deposited in the post office as provided by sec. 105 of the act of May 16, 1901. [2]
    2. Where the plaintiff, as in the case at bar, relies upon the certificate of the notary public who protested the note as prima facie evidence that notice of protest was given to the indorser, and the certificate merely recites the fact that due notice of the protest was given to the indorser, the certificate of the notary public only amounts to prima facie evidence of personal notice to the defendant, and unless the jury are satisfied from a preponderance of the evidence in the case that personal notice of protest was given to the indorser as required by law, then the verdict should be for the defendant. Answer: That is affirmed. [3]
    3. In order that an indorser of a promissory note may be made liable for its payment after the note has been dishonored, notice of the nonpayment must inform the indorser that the holder intends to stand on his legal right, and to resort to the indorser for payment.- Mere knowledge of the nonpayment on the part of the indorser is not sufficient to charge him with liability. Answer: That is affirmed. That is, the notice must inform the indorser expressly or by an equivalent implication that he is looked to for payment. [4]
    3.-2-. The memorandum at the bottom of the certificate of ■protest, to the effect that the notary sent a notice of protest ■to John H. Moffitt, is no evidence in this case that John H. Moffitt ever received that notice. Answer: That is affirmed. That is not part of the certificate, — a mere memorandum of what the certificate sets out generally. [5]
    Verdict and judgment for defendant. • Plaintiff appealed.

      Errors assigned were (1-5) above instructions, quoting them.

      John C. Bane, with him George L. Schuyler, for appellant.
    The notary’s testimony has no weight: Sherer v. Bank, 33 Pa. 134.
    The notary, who was appointed and commissioned under the laws of the commonwealth, is presumed to have known the law, to have known her duty, to have done all that the law exacted of her, and to have known when she had performed her duty: Lloyd v. McGarr, 3 Pa. 474; Kelly v. Creen, 53 Pa. 302.
    The act of 1854 made “the notarial certificate of demand and notice, prima facie evidence of the facts certified to:” Baumgardner v. Reeves, 35 Pa. 250; Starr v. Sanford, 45 Pa. 193; Landis v. Marker, 2 Del. Co. Rep. 473; Wamsley v. Rivers, 34 Iowa, 463; Fuller v. Dingman, 41 Iowa, 506.
    The assertion in the certificate of protest that the notary “duly notified the maker and indorsers” is sufficient evidence, in the absence of satisfactory proof to the contrary, that the notice was in proper, legal form.
    The memorandum was a part of the certificate: Nichols v. Goldsmith, 7 Wendell (N. Y.), 160; McLean v. Ryan, 36 App. Div. (N. Y.) 281.

      R. W. Irwin, with him D. M. McCloskey and Jas. A. Wiley, for appellee.
    The testimony of the notary was competent: Jenks v. Doylestown Bank, 4 W. & S. 505; Craig v. Shallcross, 10 S. & R. 377.
    Where the certificate does not aver that notice of protest was sent to the indorser by mail, but simply avers that due notice of protest was given to the indorser, it only raises a presumption of personal notice and it is not even presumptive evidence that notice was sent through the mails: Kase v. Getchell, 21 Pa. 503; O’Neil v. Dickson, 11 Ind. 253; Bettis v. Schreiber, 31 Minn. 329.
    The third point was predicated on the decision of this court in Marshall v. Sonneman, 216 Pa. 65, a case which was decided five years after the act of 1901 was passed, and was a suit on a note executed more than two years after the passage of that act.
    The memorandum is no part of the certificate and it is no evidence of anything: Vergennes Bank v. Cameron, 7 Barb. (N. Y.) 143; Walker v. Turner, 2 Gratt. (Va.) 534.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit by the holder against the indorser of a promissory note. William C. Fishburn made a promissory note, dated November 1, 1905, for $2,000, payable one year after date at the First National Bank of Charleroi, Pa., to the order of John H. Moffitt, the defendant. The note was indorsed and delivered to Zollner, the plaintiff. It was not paid at maturity, and on November 1, 1906, it was presented at the First National Bank of Charleroi for payment which was refused. This action was then brought by Zollner against Moffitt, the indorser.

At the trial the defense was rested on two grounds: (1) The defendant had no notice of dishonor, and (2) he was an indorser for the accommodation of Zollner, the plaintiff.

It is not denied that on maturity of the note, November 1, 1906, it was presented by a notary public for payment at the First National Bank of Charleroi, the place of payment named in the note, and that payment was refused. The defendant, however, denies that he received notice of the dishonor of the note. To establish the fact the plaintiff offered in evidence the certificate of the notary, which is in the usual form and under the hand and seal of the notary. It certifies that the notary presented the note “at the First National Bank of Charleroi, and demanded payment thereof, which was-refused, the answer being 'No attention,’ whereof I duly notified the maker and indorsers.” The defendant testified that he never received any notice of dishonor. He also called the notary who protested the note for nonpayment. She testified that the protest was made by her, that she had no recollection of what she did with the notice of protest and that she had no present recollection as to whether she “sent or gave that notice to John II. Moffitt anywhere, at any time, in any place.” In his charge, the court instructed the jury substantially that as corroborating the defendant’s testimony, denying that he had received notice of dishonor, they could consider the notary’s testimony that she had no present recollection of delivering the notice. This part of the charge is the subject of the first assignment of error.

Section 1 of the Act of December 14, 1854, P. L. (1855) 724, 2 Purd. (13th ed.).1511, provides as follows: “The official acts, protests and attestations of all notaries public, certified according to law, under their respective hands and seals of office, in respect to the dishonor of all bills and promissory notes, and of notice to the drawers, acceptors or indorsers thereof, may be received and read in evidence as proof of the facts therein stated, in all suits now pending or hereafter to be brought: Provided, that any party may be permitted to contradict, by other evidence, any such certificate.” This act, as will be observed, makes the certificate of the notary prima facie evidence of the allegations set forth in it. If there is nothing in contradiction, it is conclusive of what it contains. This certificate is in the usual form and the notary certifies that she demanded payment of the note which was refused, “whereof I duly notified the maker and indorsers.” If this certificate was the only evidence on the question of notice, it would be conclusive as to notice having been given to Moffitt, the indorser. The defendant, however, attacks the correctness of the certificate as the act specifically provides he may do, and among other evidence introduced for that purpose was that of the notary, alluded to above, in which she said that she had no present recollection that she sent or gave the notice. She does not deny the genuineness of the certificate of protest and that she gave notice of dishonor as set forth in the certificate; but simply testifies that she had no recollection on the trial of the cause that she sent or gave the notice. We think it was error for the learned court to submit her failure of recollection in sending or giving the notice as “a fact, a circumstance,” to be considered by the jury in determining whether the defendant received notice of dishonor. The notary or any other witness might have been called to contradict the allegation in the certificate that she had notified the maker and indorsers; and it would have gone to the jury as any other evidence to sustain the defendant in his denial that he received notice of dishonor. But the notary’s evidence as quoted above and alluded to in the charge had no tendency to contradict the certificate. She simply stated that she had no present recollection that she sent or gave notice as .set forth in the certificate, but at the same time admitted that the certificate was correct and therefore that she had notified ■the maker and indorsers. If She had denied that she had .issued the certificate of protest, or that if she had given notice she believed she would have recalled the fact, there would have been something to go to the jury in support of the defendant’s contention that he did not receive notice of dishonor. The simple fact that her mind was a blank at that time as to what she admitted was the truth, as shown by her certificate, that notice of dishonor had been given, should not have gone to the jury with instructions that they should consider it in support of the defense that the indorsers had not received notice. In the language of Mr. Justice Strong in Sherer v. Easton Bank, 33 Pa. 134, 140, “that the notary did not recollect it, amounts to nothing; the certificate was positive proof; the want of recollection, no proof at all.” The first assignment is sustained.

Section 96 of the Act of May 16, 1901, P. L. 194, 3 Purd. (13th ed.) 3291, known as the negotiable instruments law, declares as follows: “The notice (of dishonor) may be in writing or merely oral, and may be given in any terms which sufficiently identify the instrument and indicate that it has been dishonored by nonacceptance or nonpayment. It may in all cases be given by delivering it personally or through the mails.” The certificate of protest of the notary in the present case says: “I duly notified the maker and indorsers.” There is nothing in the certificate to indicate how the notice was given, whether it was verbal or in writing. The act permits the notice to be given in either way and declares it to be lawful. Neither is there anything in the certificate of protest to indicate whether the notice of dishonor, certified to have been given in this case, was delivered personally or through the mails. Here again the law permits the alternative and declares that either is sufficient. The notary, therefore, could have “ duly notified the maker and indorsers,” as she certifies she did, by a notice either oral or in writing through the mails. This is apparent, and not open to doubt. It therefore logically follows that to meet the allegation of notice as contained in the certificate of protest, which was prima facie evidence, the defendant was compelled to show that he had not received notice which had been served personally or through the mails. The certificate of protest being prima facie evidence, raised a presumption that notice of dishonor was given either personally or through the mails. The protest of the notary is considered as establishing the fact of notice when recited in it, unless it be disproved by other evidence: Sergeant, J., in Jenks v. Doylestown Bank, 4 W. & S. 505, 510. Giving notice in either way would have complied with the statute, and the law presumes that the notary did her duty; and especially so in this case where she certifies that she “duly notified” the indorsers. There was, however, no presumption as to which of the two ways provided in the statute the notice of dishonor was given, and hence the court could not so declare as matter of law. The interpretation of the facts in the certificate of protest was for the jury, and it was for them to determine the manner in which the notice was given: McGee v. Northumberland Bank, 5 Watts, 32. In that case it is said (p. 33): “Had the notary testified in person, as he might, that he had given notice at Northumberland, no one would pretend it to be the province of the court to say whether he meant that he had given it through the post office, or that the party was present to receive it. His meaning would be for the jury, and so it must be in respect to what he testifies under the sanction of any official, instead of a judicial oath.”

Prior to the enactment of the negotiable instruments law, if notice of protest was sent by a letter, prepaid, properly addressed, and deposited in the post office, there was a presumption that it reached its destination by due course of mail, but the presumption could be rebutted by evidence showing that it was not received, and when such evidence was produced, it Was a question of fact for the jury: Jensen v. McCorkell, 154 Pa. 323. Section 105 of the negotiable instruments law has changed the former law on this subject by providing that “where notice of dishonor is duly addressed and deposited in the Post Office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails.” Under this section due notice of dishonor is deemed to have been given when it is shown that the notice is properly addressed and deposited in the post office, whether it has been received or not. In other words, the purpose and effect of this section of the act were simply to protect the sender of the notice against miscarriage of the mails. The section does not in any manner affect the case in hand. The question here is not whether there is a presumption that notice was duly mailed, but whether the presumption arising from the certificate that notice of dishonor was duly given the indorser has been met and overcome by the defendant.

The second and third assignments of error are sustained.

The learned trial judge was in error in affirming the defendant’s third point. He and the learned counsel for the defendant were misled by the syllabus in Marshall v. Sonneman, 216 Pa. 65. The first paragraph of the syllabus is misleading and does not state correctly what was decided in the case. It is quoted from a very old case of this court which is cited in the opinion in Marshall v. Sonneman. That case as well as the other authorities referred to were cited in the opinion to show that mere knowledge by an indorser of nonpayment of a note was not sufficient notice of dishonor. Marshall v. Sonneman was an action by the holder against an indorser, and the defense, as here, was failure to give notice of dishonor. There were two indorsers and in giving notice the notary handed to the defendant the notice intended for the other indorser. The notice in form was sufficient and gave notice to. the indorser to- whom it was addressed of nonpayment “and that the holders look to you for the payment thereof.” The trouble arose from, the fact that the notary delivered to the defendant the notice intended for the other indorser, and it was held that it was not notice to the defendant. The second paragraph of the syllabus states the decision correctly: “Notice of protest signed by a notary public, and personally delivered by him to the indorser is not sufficient to charge the latter, where it appears that the notice was addressed to another person than the indorser, and stated that the holder looked to such person for the payment of the note.” The negotiable instruments law declares what notice of dishonor shall contain. The section referred to above provides, inter alia, as follows: “The notice (of dishonor) . . . . may be given in any terms which sufficiently identify the instrument and indicate that it has been dishonored by nonacceptance or nonpayment.” There is therefore no special form required by the act to convey to an indorser the information that his note has been dishonored for nonpayment. The notice must identify the instrument and indicate that it has been dishonored. Referring to the certificate under consideration, we see that it contains a copy of the note and declares that payment had been demanded and refused, of which due notice was given to the indorsers. It meets the requirements of the statute. If notice of the facts stated in the certificate was given, we have no doubt whatever of its entire sufficiency. The fourth assignment must be sustained.

The court was right in holding, as requested in the defendant’s point numbered 3-)-, that the memorandum at the bottom of the certificate of protest that the notary sent a notice of protest was no evidence that “Moffitt ever received that notice.” The memorandum was not a part of the certificate nor was ' it referred to in the certificate. The act of 1854, as we have seen, makes only such official acts of the notary prima facie evidence as are “certified according to law.” As this memorandum was not a part of the certificate nor referred to in it, it was not certified by the notary and hence was not evidence of what it purported to contain. Had it been admitted, however, it would not have added any strength to the plaintiff’s case, as the certificate averred the same fact.

The judgment is reversed with a venire facias de novo.

L