text:
    Foehrenbach, Appellant, v. German-American Title & Trust Company.

      Insurance — Title insurance — Definition.
    Title insurance is an agreement whereby the insurer, for a valuable consideration, agrees to indemnify the insured in a specified amount against loss through defects of title to real estate wherein the latter has an interest, either as purchaser or otherwise.

      Where a person in possession of land, and claiming an absolute fee simple in it, applies to a title insurance company in good faith for insurance of the title, and the company issues to him a policy insuring him against defects, unmarketability, liens and incumbrances as of the date of the policy, and thereafter it is decided in partition proceedings in the orphans’ court that the insured has only a half interest in the land, and as a result of such proceedings the insured voluntarily surrenders the premises to the purchaser at a judicial sale therein, the insured may recover the value of the half interest from the company, and the latter will not be heard to allege that as the insured never had title to the half interest, he consequently suffered no loss.
    Fell and Brown, JJ., dissent.
    Argued Jan. 24, 1907.
    Appeal No. 130, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 2,045, for defendant on case stated in suit of Julius E. Foehrenbach v. German-American Title & Trust Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit on a policy of title insurance.
    The facts are stated in the opinion of the Supreme Court.

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

      E. Spencer Miller, with him Maurice G. Belknap, for appellant.
    The insurance company knew when it issued the policy now in suit, that it was insuring a supposed title taken some time previously. The application and records, including the will, showed this. Nevertheless, it took the plaintiff’s money and gave him the insurance obligation which it now says was valueless.
    Appellant was not bound to stand out against claim of title made by the purchaser from the court’s representative who conducted the sale.
    When it is borne in mind that Mr. Foehrenbach applied for insurance under an absolute belief that he was the exclusive owner of the property it will be appreciated why he did not call to the attention of the company the former existence of William Ellerich, the survival of the latter’s children and their relation to, John Baker. But, as a matter of fact, the record of Louisa Foehrenbach’s will showed that such a person as Ellerich had been in existence at its date.
    April 1, 1907:

      Alex. Simpson, Jr., with him Francis Skunk Brown, for appellee.
    The policy in suit being a contract of indemnity only, plaintiff cannot recover because it is admitted that he incurred no expense and lost nothing in reliance thereupon: Wheeler v. Trust Co., 206 Pa. 428; Kearns v. Howley, 188 Pa. 116; Ewing v. Ry. Co., 147 Pa. 40; Linn v. Duquesne Borough, 204 Pa. 551; Huston v. Freemansburg Borough, 212 Pa. 548.
    Appellant cannot recover, because he voluntarily surrendered the insured premises: Hoeveler v. Fleming, 91 Pa. 322; Knotts v. McGregor, 47 W. Va. 566 (35 S. E. Repr. 899); Seigel v. Neary, 77 N. Y. Supp. 854; Berks County v. Pile, 18 Pa. 493; Loux v. Fox, 171 Pa. 68; Seymour v. Trust, etc., Co., 203 Pa. 151.
    No recovery can be had because appellant did not disclose all the material facts when he applied for the insurance: Chicora Fertilizer Co. v. Dunan, 91 Md. 144 (46 Atl. Repr. 347); Hazlett v. Powell, 30 Pa. 293; Zahn v. McMillin, 179 Pa. 146; Bolz v. Stuhl, 4 Pa. Superior Ct. 52; Brewing Co. v McLean, 15 Pa. Superior Ct. 38; Wayne v. Commercial Nat. Bank, 52 Pa. 343.
   Opinion by

Mr. Justice Potter,

On September 13, 1894, the plaintiff in this case, under the supposition that he was the owner of the entire interest in a certain property, applied to the defendant for title insurance in the usual form, in the sum of $5,000, against liens or defects in title affecting the premises. On October 12, 1894, the Title Insurance Company issued to applicant its policy which set forth in part as follows : “ This policy of insurance witnesseth that The German-American Title and Trust Company, in consideration of the payment of expenses and twelve dollars and fifty cents ($12.50) by way of premium or deposit to it paid by Julius E. Foehrenbach doth hereby covenant that it will indemnify, keep harmless and insure the said Julius E. Foehrenbach and all persons claiming the estate and property hereinafter mentioned under him by descent, by will or under the intestate laws, and all other persons to whom this policy may be transferred with the assent of this company, testified by the signatures of the proper officers of this company indorsed on this policy, against all loss or damage not exceeding five thousand dollars, which the said insured shall sustain by reason of defects of the title of the insured to the estate, mortgage or interest described in schedule A, hereto annexed, or because of liens or incumbrances charging the same at the date of this policy. Saving the defects, objections, liens or incumbrances excepted in schedule B, or by the conditions contained in schedule C, and hereby incorporated into this contract.”

Schedule A showed that the interest of the insured covered by the policy was as owner in fee. And that the title of the insured was claimed to be vested in him through the will of his mother, Louisa Foehrenbach, dated December 21, 1888, and registered in the appropriate office in Philadelphia in Will book 144, page 463. Louisa Foehrenbach provided in her will as follows: “ I give, devise and bequeath unto my said son John Baker for and during his natural life (after said Julius shall have attained the age of twenty-one years) the property No. 543 East Girard avenue, corner Montgomery avenue, 18th ward, and after his death to his lawful issue if any, their heirs and assigns; in default of issue the same to vest in my said son Julius Foehrenbach his heirs and assigns forever.”

John Baker, named in the will, died June 23, 1894, intestate, unmarried and without issue, leaving to survive him a half-brother, Julius E. Foehrenbach, and three children of William Ellerich, another half-brother. That William Ellerich bore the same relation to John Baker that he himself did, and that William Ellerich left three surviving children, was known to JuliusE. Foehrenbach when he made his application, for title insurance, but he did not mention these facts to the Title Insurance Company. Presumably, this was because he was acting under the belief that he was, under the will of his mother, the exclusive owner of the property, as there is no suggestion of fraud or bad faith upon the part of plaintiff. Indeed, there could not be, for the will of Louisa Foehrenbach was given by appellant as his immediate source of title, and it was examined and accepted as such by defendant company, as set forth in schedule A, and this will contained a bequest to her son William Ellerich, and made obvious his relationship to the said John Baker. Subsequently, the three children of William Ellerich, claiming a one-half interest in the premises in question, began partition proceedings in the orphans’ court. It was there held that John Baker took a fee under the terms of his mother’s will, and therefore at his death his half-brother, Julius E. Eoehrenbach, instead of taking the entire interest from his mother, took only a half interest from his half-brother, and the remaining half interest became vested in the children of William Ellerich, the deceased half-brother. The property was then sold under the partition proceedings, realizing the sum of $4,100, its value, and on distribution of the proceeds of sale one-half the net balance was awarded to the Ellerichs, and one-half to a lien creditor of Eoehrenbach. The policy of title insurance had been assigned by Foehrehbach to this lien creditor, and the company paid her the difference between the amount awarded her. by the orphans’ court and her entire lien, being the sum of $411.87. On November 21, 1904, Eoehrenbach, who had been in possession of the premises since the death of Baker, a period of some ten years, voluntarily delivered possession of them to the purchaser at the partition sale. lie then brought this suit in assumpsit against the title company to recover $1,915.70, being the difference between the value of the property, less the amount of the award by the orphans’ court, a few small items of credit, and the money paid his assigns.

Defendant .filed an affidavit of defense and pleas. A case stated was agreed upon and the cause submitted to the court below, which entered judgment in the following language: “ This policy is not a guarantee of title, but a contract of indemnity. The plaintiff has lost nothing. Judgment for defendant on case stated.”

In reaching this conclusion the learned court adopted the suggestion of the defendant, that the plaintiff lost nothing, because he never did, in fact, have the title to the entire interest, as he supposed he had, and therefore he could not be said to lose that which he had never owned. Asa logical statement, taken in the abstract, this is unassailable. But in determining whether or not the failure of his title to the one-half interest in the property constituted such a loss as would entitle him to indemnity under the terms of his insurance policy, we must examine the contract in the light of the purpose or object for which it was made. ,

It is admitted that if plaintiff had purchased or improved the property in reliance upon the policy, he could recover. But as he was in possession as owner, before he applied for and received the insurance, it is urged that he lost nothing, because he expended nothing in reliance upon the policy. We cannot see any sound reason for this attempted distinction between the rights of a present and prospective owner, who applies for title insurance. Relief of mind to an owner, obtained through title insurance, is quite as desirable as the same assurance furnished to a prospective purchaser or mortgagee/* The sole object of title insurance is to cover possibilities of loss through defects that may cloud or invalidate titles. It is for the assumption of whatever risk there may be, in such connection, that the premium is paid to, and accepted by, the company which issues the policy. Title insurance is not mere guesswork, nor is it a wager. It is based upon careful examination of the muniments .of title, and the exercise of judgment by skilled conveyancers.

The quality of a title is a matter of opinion, as to which even men learned in- the law of real estate may differ. A policy of title insurance means the opinion of the company which issues it, as to the validity of the title, backed by an agreement to make that opinion good, in case it should prove to be mistaken, and loss should result in consequence to the insured.

Loss is a relative term. Failure to keep that which one has, is loss. The plaintiff in this case, upon September 12, 1894, found himself in possession of a property, devised to him, as he supposed and claimed, in the will of his mother. Wishing to safeguard himself in the enjoyment of his title, he applied to the defendant company for insurance. “ Title insurance is an agreement whereby the insurer, for a valuable consideration, agrees to indemnify the insured in a specified amount against loss through defects of title to real estate wherein the latter has an interest, either as purchaser or otherwise: ” Frost on. Guaranty Insurance, sec. 162. A contract of title insurance is also defined as “ a contract to indemnify against loss through defects in the title to real estate or liens or incumbrances thereon: ” 1 Cooley on Insurance, 12.

It must be borne in mind that the real subject of insurance is not the concrete thing, but the interest which the one to be indemnified has in the concrete thing. The interest which plaintiff desired to protect was the entire interest as owner in fee of the property in question. It was this interest which he submitted to defendant company as the subject-matter of insurance. It was for the company then to examine the evidence of his title, and to say whether or not it would assume the risk of making good to him, the injury which would result, in case his claim of title to the entire interest should prove defective. The contract which he asked for, and which by its policy the company made with him, was one of insurance against defects in the title, as he claimed it to be, and as the company agreed with him after examination that it Avas, viz.: title to the entire interest in the property. The policy applied to the situation as it then existed. It insured the plaintiff against defects, unmarketability, liens and incumbrances as of that date. It said to him, you are in our judgment the OAvner in fee of the entire interest in this property, and we will back our opinion by agreeing to hold you harmless, up to the amount of the policy, in case for any reason our judgment in this respect should prove to be mistaken.

The risks of title insurance end where the risks of other kinds of insurance begin. Title insurance is designed to protect the insured, and save him harmless from any loss arising through defects, liens or incumbrances that may be in existence, affecting the title Avhen the policy is issued. It does not protect against any claim arising after the issuance of the policy.'' In the present case the validity of the plaintiff’s claim to the entire interest in the property depended upon the construction of the language of the will of Louisa Eoehrenbach.

Evidently the defendant company, having the will before it, construed the devise as a life estate in the, first taker, and a fee in the remainderman : othervvise, it would not have issued its policy insuring a fee in the remainderman. In adopting this construction, it was mistaken, for when some ten years afterwards the question was raised in the orphans’ court, under the partition proceedings, it was decided that the first taker took a fee simple. The title of the plaintiff to the property in question was not, therefore, derived from his mother, as claimed by him in his application for insurance, but whatever interest he had came to him through his half-brother, John Baker, from whom he took only an undivided one-half interest. Can there be any doubt that the reduction of his interest in the property from an ownership of the whole, to that of one-half, was a defect, coming directly within the terms of the policy ? No matter whether or not the question of the amount of his interest was doubtful when the policy was issued. The risk of insuring him in his claim of title was one which the. defendant could legitimately take, if it chose to do so. Insurance carries with it the idea of protection against some risk. If there were no risk, there would be no cause for insurance. The underlying principle of insurance is the contribution of small sums by a large number of insured, to a common fund, from which to indemnify those who actually suffer the loss, which might have fallen upon any of them. Actual loss of course must precede the right of compensation. But that is measured by the standard accepted as between the parties. In this case the standard of interest, which was claimed by appellant, was ownership in fee of the entire property. That standard was, after examination of the muniments of title, by. the defendant company, admitted as correct, and the policy of insurance was- issued, for a proper consideration, agreeing to insure the plaintiff against any loss or damage by reason of defects in that particular interest or claim of title which' he had presented to the company. That is, against any outstanding claim which would reduce his interest below that which he claimed it to be. It requires no argument to show that the absolute failure of title to one-half the interest was a serious defect,, as compared in extent and quality with the title to the entire interest, which he had asserted and submitted to the defendant company, as the basis upon which the insurance was to be effected, and which was accepted and approved by it, as set forth in the policy.

The estate or interest of the insured which was covered by the policy was that of owner in fee of the entire property. Any defect in title which reduced his interest below that point was, it seems to us, just that much loss, or damage, for which he was entitled to be indemnified. The fact that an application is made for title insurance by one who, at the time, claims to be the owner, is sufficient of itself to put the insurance company on its guard, and ought to be regarded by it as notice that unusual care should be taken in the examination of the title.

There is no merit in the suggestion that plaintiff is not entitled to recover because ho voluntarily gave possession to the purchaser at the sale under the partition proceedings. The sale was made under the decree of the orphans’ court, in a suit of which due notice had been given to the defendant company, within the period specified in the policy. It was, therefore, bound by the result. Plaintiff was not bound to carry his resistance to the decree to the point of waiting to bo physically expelled from the premises. .Proper respect for the court which had made the decree forbade such conduct.

The assignments of error are all sustained.

The judgment of the court below is reversed; and as we are of opinion that the plaintiff was entitled to recover the full amount of the claim, judgment is here entered for plaintiff in the sum of 81,915.70, with interest from November 21, 1904.

Fei,l and Brown, JJ., dissent.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Lotz, Appellant, v. Hanlon.

      Negligence — Automobiles—Ownership of machine — Negligence of employee — Evidence.
    In an action against an owner of' an automobile to recover damages for personal injuries resulting from being run down by the machine, the plaintiff must show not only the fact that the person in charge was defendant’s servant, but the further fact that he was at the time engaged on the master’s business, with the master’s knowledge, and by the master’s direction. Evidence of the mere ownership of the machine is insufficient.
    Argued Jan. 16, 1907.
    Appeal, No. 255, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1905, No. 1,563, on verdict for defendant in case of Caspar Lotz v. Felix L. Hanlon.
    April 1, 1907:
    Before Mitchell, C. J., Fell, Brown, Mesxrezat, Potter, Elkin and Stewart, J J.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Audenried, J.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant. ,

      Thad. L. Vanderslice, with him G. A. Swayze, for appellant. —
    The case was for the jury : Guinney v. Hand, 153 Pa. 404; McIldowny v. Williams, 28 Pa. 492; Penna. R. R. Co. v. Spicker, 105 Pa. 142; Patterson v. Dushane, 115 Pa. 334; Brunner v. Tel. Co., 151 Pa. 447; Oliphant’s Law of Horses, 337.

      John G. Johnson, with him George L. Crawford, for appellee.
    The instructions were proper: Whatman v. Pearson, L. R. 3 C. P. 422; St. Louis S. W. Ry. Co. v. Harvey, 144 Fed. Repr. 806; Cavanaugh v. Dinsmore, 12 Hun, 465; Sheridan v. Charlick, 4 Daly, 338; Clark v. Buckmobile Co., 94 N. Y. Supp. 771; Holler v. Ross, 53 Atl. Repr. 472; Howe v. Newmarch, 94 Mass. 49; McCarthy v. Timmins, 178 Mass. 378 (59 N. E. Repr. 1038); Quigley v. Thompson, 211 Pa. 107; Guille v. Campbell, 200 Pa. 119; Rudgeair v. Reading Traction Co., 180 Pa. 333; Murphy v. Phila. Rapid Transit Co., 30 Pa. Superior Ct. 87.
   Opinion by

Mr. Justice Stewart,

It was essential to a recovery in this case that it be made to appear that the accident from which plaintiff’s injury resulted occurred while the person in charge of the automobile was using it in the course of his employment, and on his master’s business. Plaintiff offered no direct evidence as to this, but having shown the ownership of the machine to be in the defendant, sought to derive from this circumstance, and this alone, not only the fact that the person in charge was defendant’s servant, but the further fact that he was at the time engaged on the master’s errand. If when plaintiff rested, a nonsuit had been ordered, he could not have been heard to complain. Ownership of the machine in cases of this character is at best but a scant basis for the inference that was here sought to be derived from it. It is allowed as adequate only when the attending circumstances point to no different conclusion. In itself it is but one of a series of circumstances, and its significance depends on the extent of - the general concurrence of these. If they indicate something different, the scant basis that this single fact otherwise might afford is reduced below the point of sufficiency. Because its value as a probatory fact so entirely depends upon attending circumstances, it is always the duty of the party seeking to establish through it a prima facie case, to develop the whole situation, so that its significance may be correctly measured. When he fails in this regard, and his evidence leaves the general sitúa» tion undisclosed, and this without explanation of the failure, he is liable to suffer from the inference that what was not disclosed was prejudicial to his case. Where this occurs the mere fact of ownership can count for little.

The plaintiff’s case discloses nothing more than that the plaintiff had been run down by an automobile in a frequented street in the city, after nightfall; that the machine was at the time occupied by four persons, one being the driver whose identity was established ; and that the machine was registered in the name of defendant as owner. There was absolutely nothing in the evidence to establish the relation of master and servant between the defendant and the driver of the automobile, outside the defendant’s ownership. It was not even attempted to be shown that the man driving the machine had ever been in defendant’s employ in any capacity whatever. The defendant was not identified as one of the party of four in the machine, and not one of the four was called to testify in regard to the matter. The jury had a right to be informed as to who these persons were, where they were going, upon what mission, at whose invitation they were occupying the automobile, and in what relation they stood to the defendant, so that they might intelligently determine the question of defendant’s liability. The significance of the ownership of the machine could be measured only as the facts here suggested were disclosed. Had the case gone to the jury, it would have been the duty of the court to instruct as matter of law, that no explanation having been given as to why testimony in relation to these circumstances was not produced, the jury might draw the. inference that such testimony would be unfavorable to plaintiff’s contention. It would be an inference of fact; but in determining whether plaintiff had or had not made out a case warranting a submission, it would be for the court’s consideration.

Was this manifest insufficiency of plaintiff’s case supplied in any way by the evidence offered on part of the defendant ? The evidence establishes the fact that the man driving the machine when the accident occurred was in the defendant’s regular employment as chauffeur; that the machine was intrusted to his care and keeping, only, however, for defendant’s own use as he might direct. So much is supplied. But it comes to nothing that the driver was the defendant’s servant, if it appears that at the time the accident happened he was not on the master’s errand or business. If he were on an errand of his own, then as long as so engaged he did not stand in the relation of servant. The evidence on part of the defendant, and not attempted to be contradicted or discredited, leaves it clear of all doubt that the three persons occupying the machine with the driver when the accident occurred, were there by invitation of the driver, that they were entire strangers to the owner of the machine, and that the machine was being employed by the driver on this occasion without the knowledge of the owner. We are considering now so much of the evidence offered by the defendant as may be claimed to supplement that offered by the plaintiff, and therefore we may regard the facts as admitted. It shows that without the knowledge of the owner, or of anyone with right to use the machine in absence of the owner from the country, the driver on the morning of the day the accident occurred arranged to take some friends of his own choosing for a drive during the course of the evening. He personally invited a female friend, and through her invited two others, a man and woman, to join the party. He had it in mind to stop in the course of the drive at a store where automobile supplies were sold, to purchase some sparks for future use in connection with the machine. It is clear that this purpose was simply incidental to the evening’s trip, and was suggested by consideration of the driver’s own convenience. The main purpose of the drive was for the pleasure and enjoyment of the driver and his selected friends. The persons invited by him resided quite a distance from each other, and in assembling them the driver at the start was obliged to go a considerable distance in the opposite direction from where the supply store was. It was after all were in the machine that the accident happened, but it was while he was at a point further from the supply store than was his starting point. But had it happened while on the direct route to the store, even though the obtaining of sparks was the main purpose of the drive, this would not have made it an errand on the master’s business without some evidence that it was taken with the knowledge and approval of the master. There was not a particle of evidence in the case that the use of the machine for such purpose had ever been allowed by the master. The most that appeared was that the driver had been allowed on some occasions to purchase the necessary supplies for the machine at this store on the master’s credit; but none that he had ever used the machine in going to the store to get them, or that he ever employed it in any way except as ordered by the master in connection with each particular occasion. So far as appears, the use of the machine by the driver on the evening when the accident occurred was wholly unlicensed, was for his own convenience and pleasure, and therefore entirely apart from his master’s business. The case as exhibited by the plaintiff was insufficient to warrant a recovery; its insufficiency was not supplied by anything shown on the part of the defendant, and it therefore became the duty of the court to direct the verdict.

Judgment affirmed.


text:
    Becker, Appellant, v. Philadelphia.

      Negligence — Municipalities—Evidence—Record.
    In an action by a woman against a municipality to recover damages for personal injuries, the plaintiff claimed that she was suffering from a particular physical disturbance resulting from a fall which was the foundation of the action. The defendant claimed that about ten years prior to the accident plaintiff had sued a borough to recover for personal injuries, and that in the suit against the borough she had claimed and recovered damages for the same physical disturbance. The plaintiff denied that she had made any such claim in a prior suit. The city offered in evidence the record of the prior suit, and also as a witness, the stenographer who had taken the testimony in that suit, to show by his notes that a physician, since deceased, had testified on behalf of the plaintiff that she was suffering from the physical disturbance complained of in the second suit. The first suit was brought prior to the Act of May 8, 1895, P. L. 54, which requires that the rights of husband and wife should in cases of injuries to the wife be redressed in one action. It was objected to the admission of the testimony that as the husband in the later suit was claiming to recover in his own right, the record of the earlier suit, which was solely for the wife’s benefit, was res inter alios acta, and consequently not admissible. Held, that the objection was not well founded, inasmuch as the testimony was not offered to prove the substantive fact of the existence of the physical disturbance, but to contradict the plaintiff, and to show that she adopted the declarations and admission of the physician as her own.
    A record may be admitted in evidence in favor of a stranger against one of the parties, as containing a solemn admission, or judicial declaration by such party in record to a certain fact. But, in that ease, it is admitted not as a judgment conclusively establishing the fact, but as the deliberate declaration or admission of the party that the fact was so. It is therefore to be treated according to the principles governing admissions, to which class of evidence it properly belongs.
    Argued Jan. 23, 1907.
    Appeal, No. 123, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1901, No. 239, on verdict for defendant in case of Charles Ellwood Becker and Margaret Becker, his wifé, v. Philadelphia.
    Before Mitohell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Willson, P. J.
    The opinion of the Supreme Court states the case.

      April 1, 1907:
    At the trial the court permitted under objection and exception the prothonotary of Delaware county to offer in evidence a certified copy of the record of the case of plaintiff against the Borough of Clifton Heights. [1] After the record was admitted defendant made the following offer:
    Mr. Bartlett: Having offered in evidence the testimony of Charles E. Becker and Margaret Becker, his wife, I again offer to prove by this witness that the testimony of Dr. Charles Cooper, a witness called by Margaret Becker and Charles E. Becker, plaintiffs, in the right of the said Margaret Becker, his wife, in a suit against the Borough of Clifton Heights, C. P. Delaware county, No. 16, December Term, 1890, to show the identity of the injuries claimed for in said case to those herein claimed for, coupled with proof, by the testimony of the court stenographer and a juror in the case, that Dr. Cooper testified in said case that the injuries sustained by Mrs. Becker consisted of a spot on the spine, permanent ifi nature, and prolapsus uteri, the falling of the womb, permanent in nature, and other permanent injuries, such permanent injuries being identical to those testified to in the case on trial.
    Mr. Raymond : Objected to.
    The Court: I will admit it, on the ground that the declaration of a witness called by a party must be considered a declaration of the party.
    Mr. Raymond: My objection is, the parties are not the same, and it is not the same subject-matter. Exception. [2]
    Terdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (6-15) various portions of the charge.

      Eugene Raymond, for appellant.

      Charles E. Bartlett, assistant city solicitor, with him John L. Ki/nsey, city solicitor, and W. C. Wilson, for appellee.
   Opinion by

Mr. Justice Stewart,

It was one of the questions in the case whether the uterine. disturbance from which the plaintiff, Mrs. Becker, was shown to be suffering, resulted from the fall which was the foundation of the action, or from an earlier occurrence. Plaintiff claimed to recover for- other injuries as well, but this, if not the most serious, was one which if traced to this particular fall as a cause would, in case of a recovery, swell largely the sum total of compensation. The effort on part of defendant was to disconnect the two. Some eight or ten years before the accident which gives rise to the present suit, Mrs. Becker had been injuried by a fall on a public street in the borough of Clifton Heights. Alleging negligence on the part of the municipality in this connection, she brought her action against the borough. The defendant sought to show that one of the .injuries complained of in the action, and for which compensation was there asked, was a uterine disturbance; that injuries of this character are permanent, except as corrected by surgical operation; that plaintiff was allowed to recover there as for a permanent injury in this respect; and that a surgical operation had never been resorted to in her case. Such lin'e of defense was of course entirely legitimate,'since, if established, it would eliminate this particular injury from the case, except as the accident for which it was attempted to hold defendant responsible had aggravated the disability that had resulted from the former one. The only question was as to the method of proof. The offer which was admitted under exceptions which are here pressed, was, first, a certified copy of the record in the case of Margaret Becker v. The Borough of Clifton Heights; and, second, to prove by the court stenographer reading from his notes taken at the trial, that among the injuries for which compensation was there claimed was uterine disturbance. The offer of the record was but preliminary to the introduction of the stenographer’s testimony. In itself it was of no importance, except as matter of inducement to what followed in the second branch of the offer and as preliminary thereto. For this purpose it was both necessary and proper. The objection urged to both is the same; separate consideration, therefore, is not necessary. We shall consider the objection more fully in connection with the second offer. On the trial of the case against the borough of Clifton Heights, one Dr. Charles Cooper was a witness called by the plaintiff. He was the physician who attended Mrs. Becker after she had received her injuries, and he testified fully as to their nature and extent. He died before the present action was brought; and the offer was to show by the stenographer from his notes taken at the trial, that Dr. Cooper on behalf of plaintiff testified that one of the results of the accident there complained of was uterine disturbance ; that he had treated the plaintiff for this ailment, describing how, and that the injury was permanent in its character. This was objected to on the ground that the action against the borough of Clifton Heights, having been brought before the Act of May 8, 1895, P. L. 54, which requires that the rights of husband and wife in cases of this character be redressed in one action, was solely for the wife’s benefit, the husband’s joinder therein being purely formal; that in the present suit he is claiming to recover in his own right and that, therefore, the record of the earlier suit is res inter alios acta, and consequently not admissible here. The objection might have been valid enough had the effort here been to prove in this way as a substantive fact, admitting its pertinency, that Mrs. Becker at this earlier period suffered from this particular ailment. Whether she did or did not so suffer was wholly aside from the inquiry. She testified in the present case that she had not attempted to recover in the action against the borough of Clifton Heights for uterine disturbance ; that she had not sustained such injury in the earlier accident, and had not been treated for any such ailment before her later accident. The purpose of the offer was to discredit her as a witness, and to impute to her want of good faith as plaintiff in the present action. It was pertinent to the issue; how effective was for the jury to say. Dr. Cooper was a witness testifying on behalf of plaintiff. The plaintiff was present at the time he testified according to her own admission. She relied upon his testimony with regard to the nature and extent of her injury, as furnishing a basis upon which she asked the jury to reckon her compensation. She thus adopted and used the declarations and admissions of the witness as her own, and it was the same as though she herself had asserted the fact which they tended to prove. Such is the rule. The purpose of the offer was clearly legitimate, and the mode of proof entirely proper. “ A record may also be admitted in evidence in favor of a stranger against one of the parties, as containing a solemn admission, or judicial declaration by such party in regard to a certain fact. But, in that case, it is admitted not as a judgment conclusively establishing the fact, but as the deliberate declaration or admission of the party that the fact was so. It is therefore to be treated according to the principle governing admissions to which class of evidence it properly belongs.” The law on this subject is thus summarized by Bell, J., in Truby v. Seybert, 12 Pa. 101: “To operate, of itself, as a bar, a judgment must be between the same parties or privies. But though the parties be different, a record is admissible to prove the existence of a former action with its legal consequences, as an independent fact; for the mere fact that such a suit was brought and a verdict and judgment rendered, it is said, cannot be considered as res inter alios acta. Where, therefore, the introduction of a former judgment is necessary by way of inducement to the full understanding of a collateral fact, or the admissions and allegations of a party to it, the record is always received, not only as legal evidence of the rendition of such a judgment, but as conclusive for that purpose; for it must be presumed the court made a faithful record of its own proceedings. Thus, a record may be shown, though the parties are not the same, to let in proof of what was sworn at the trial; 1 Greenleaf, Ev., sec. 527. So also, it is admissible against one of the parties or judicial declaration by such parties, in regard to any particular fact. But in these instances, it is received, not as an adjudication conclusively establishing the fact, but as the declaration or admission of the party himself that the fact is so.”

The remaining assignment of error relates to the charge of the court, which is complained of as inadequate and partial. We have examined the charge in this case with reference to each of the twelve specifications under this head. In the very careful examination thus made, we have failed to find anything affording ground for complaint. It is a full and very careful presentation of the law of the case, and equally full and careful in its exhibit of the evidence. In his comments on the evidence and the positions taken on one side and the other with reference to it, not only did the learned judge make no attempt to force upon the jury views of his own, but he seemed even studious to avoid expressing any view. It is impossible to derive from the charge any inference of favor, and the complaint of inadequacy is groundless. ¥e deem it unnecessary to consider separately these specifications. They are all overruled and the judgment is affirmed.


text:
    Lee v. Dobson, Appellant.

      Negligence — Master and servant — Dangerous machinery — Risk of employment — Contributory negligence.

    The master is not an insurer of the servant’s safety. While he is required to furnish reasonably suitable and safe means with which to carry on his business, yet the servant will be deemed to have assumed all risks naturally and reasonably incident to his employment; and to have notice of all risks, which to a person of his experience and understanding are or ought to be open and obvious.
    When one undertakes a perilous employment by operating a machine obviously wanting in suitable appliances for safety, knowingly and voluntarily, he cannot afterwards complain in case of injury in consequence thereof, that the machinery was of a dangerous kind, and that it was wanting in appliances reasonably necessary to render it safe.
    In an action by an employee against his employer, a manufacturer, to recover damages for personal injuries sustained while readjusting a chain which had become loose, it appeared that under the rule of the establishment the chain was required to be readjusted while the machinery was in motion. It was shown that appliances were in common use in other factories which afforded safety in such readjustment, but were not in use in defendant’s works. The plaintiff was thirty-five years old, had been in defendant’s employment for twelve years, and worked most of the time in the room where the accident occurred, and for ten months before the accident at the machinery where he was injured. The displacement of the chain was a matter of almost daily occurrence, and plaintiff had frequently done what he was attempting at the time of the accident, and had seen others do it. It also appeared that before making the attempt, he had adjusted a string about his person, so as to confine the ends of his jacket. His precautions were, however, inadequate, as the ends of his jacket escaped, and were carried by steam or wind against the revolving shaft, and he was drawn irresistibly to his injury. Held, that the plaintiff not only assumed the risk of his employment, but was also guilty of contributory negligence, and that he was not entitled to recover.
    Argued Jan. 24, 1907.
    Appeal, No. 90, Jan. T., 1906, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 2,324, on verdict for plaintiff in case of Harry Lee v. James Dobson.
    April 1, 1907:
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before "WlLTBANK, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict for plaintiff for $12,000, upon which judgment was entered for $6,000, all above that amount having been remitted.

      Error assigned was in refusing binding instructions for defendant.

      Thomas Earle White, of White, White & Taulame, for appellant.
    Plaintiff assumed the risk: Thomas v. Quartermaine, L. R. 18 Q. B. Div. 685; Pittsburg, etc., R. R. Co. v. Sentmeyer, 92 Pa. 276; Boyd v. Harris, 176 Pa. 484; Simmons v. Southern Traction Co., 207 Pa. 589; Danisch v. Amer, 214 Pa. 105; Fick v. Jackson, 3 Pa. Superior Ct. 378; Brossman v. Lehigh Valley R. R. Co., 113 Pa. 490; Fulford v. Lehigh Valley R. R. Co., 185 Pa. 329; Bellows v. Penna., etc., Canal & R. R. Co., 157 Pa. 51; Fletcher v. Phila. Traction Co., 190 Pa. 117; Murch v. Thomas Wilson’s Sons & Co., 168 Mass. 408 (47 N. E. Repr. 111); Nuss v. Rafsnyder, 178 Pa. 397; Rooney v. Sewall & Day Cordage Co., 161 Mass. 153 (36 N. E. Repr. 789); Knisley v. Pratt, 148 N. Y. 372 (42 N. E. Repr. 986).
    Plaintiff was guilty of contributory negligence.

      Thomas Learning, with him John B. K. Scott, for appellee.
    Whether plaintiff was guilty of contributory negligence or assumed the risk was, under all the circumstances, a question of fact for the jury — not of law for the court: Schall v. Cole, 107 Pa. 1; Sweigert v. Klingensmith, 210 Pa. 565; Bannon v. Lutz, 158 Pa. 166; Denning v. Midvale Steel Co., 192 Pa. 182; Reese v. Clark, 198 Pa. 312; Patterson v. Pittsburg & Connells ville R. R. Co., 76 Pa. 389.
   Opinion by

Mr. Justice Stewart,

The plaintiff was employed in the dye room of defendant’s carpet mill, where ho was in charge of two of the seven vats there used for dyeing and scouring yarn. What was required of him was to introduce into the vats from time to time a cage or frame on which the yarn was wound, and remove the same when it had sufficiently acquired the dye. This cage or frame was moved rapidly back and forth in the vat containing material by mechanical appliance, the power being derived from a countershaft which ran the entire length of the room at an elevation of eight or nine feet. On this shaft was a sprocket wheel over which passed a circular chain, which was carried down under a similar wheel attached to the rear of the vat. The power thus derived was communicated to an eccentric, which imparted its motion to the cage in the vat. The chain which thus connected the vat with the shaft was very liable to slip from the sprocket wheel on the shaft, and when this happened the movement of the cage necessarily ceased for the time being. When it occurred, it was plaintiff’s duty to climb up, by means of the wall and the pipes extending through the room, and readjust the chain upon the wheel. It was while attempting this that the accident complained of occurred ; not while in the act of putting the chain upon the wheel, but while getting in position to do this after he had reached the level of the shaft. Iiis own testimony is that occupying a stooping or crouching position close to the shaft, his jacket or blouse was torn loose from his person by a jet,of escaping steam and driven toward the shaft, which caught it and drew him irresistibly to his injury. In this he was corroborated by his father, who was the only witness to the occurrence. The latter testiñed that ho saw the jacket driven open by the steam and caught by the shaft. No different explanation of how the accident occurred was suggested; and it is accepted as correct.

The effort on part of plaintiff was to refer the accident to the negligence of the defendant in failing to provide such appliances in connection with his machinery as would enable the party whose duty it might be to adjust the chain when misplaced to throw into rest for the time being the shaft, or that particular section of it to which the sprocket wheel was attached. The fact that such appliances are in common use was abundantly established, and was not controverted. That the defendant’s machinery lacked these improved appliances was admitted. No one part of the shaft in this case could be brought to a rest, except as the whole shaft was stopped, and this could only be affected from the engine room, where plaintiff was without control. This was not permitted when nothing but replacing the chain was to be done. Other things being equal, whether ordinary care would have required the furnishing of such safety appliances, would be a matter for the jury; but this case presents features which make this inquiry unnecessary. The plaintiff was a man of about thirty-five years when this accident occurred. He had been in defendant’s employment with some interruptions for twelve years, and for the greater part of this time worked in the same room in which he was last engaged. The machinery used in this room was introduced some ten years ago, and so far as appears is unchanged. For only a period of ten months, however, before the accident, had plaintiff been working at a vat in which the cage of yarn was moved about in the vat by machinery. In his earlier experience he had worked at a vat in which it was moved by hand, but it was in the same room, so that he had abundant opportunity, both by observation and experience, to acquaint himself fully with the nature and character of the work he was employed to do, and its attending risks. He had frequently done what he was attempting when his accident befell, and had seen others do it. Displacement of the chain was a matter of almost daily occurrence. There is no uncertainty in the law applicable to cases of this kind. The master is not an insurer of the servant’s safety. While he is required to furnish reasonably suitable and safe means with which to carry on his business, yet the servant will be deemed to have assumed all risks naturally and reasonably incident to his employment; and to have notice of all risks which to a person of his experience and understanding are or ought to be open and obvious. When one undertakes a perilous employment by operating a machine obviously wanting in suitable appliances for safety, knowingly and voluntarily, he cannot afterwards complain in case of injury in consequence thereof that the machinery was of a dangerous kind, and that it was wanting in appliances reasonably necessary to render it safe: Rummell, Admr., v. Dilworth, 111 Pa. 343; Danisch v. Amer, 211 Pa. 105. True, the defendant says that at the time the accident occurred he did not know that there were appliances that could be employed to throw a section of the shaft into a state of rest. He did know, however, that the movement of the shaft could be arrested from the engine room; and that his employer, notwithstanding another equally effective way of bringing the shaft to a rest was available, required that the readjustment of the chain be made without this: in other words, that he required this work to be done while the shaft was revolving. His ignorance of the improved methods for stopping the shaft or a section of it without disturbing the whole, in nowise misled him as to the risk of the employment. He was daily confronted by an obvious danger which he fully understood and appreciated, according to his own admissions. The defendant owed him no duty to acquaint him with the fact that the machinery was not so safe as that in common use for the same purposes; that in some other, or almost any other mill where like work was done, he would not be exposed to the same danger, because in these other mills when readjustment of the chain on the wheel was required, the revolution of the shaft in one way or other was stopped, while in this mill the readjustment was required to be ma.de while it was in motion. In the light of the evidence the plaintiff’s employment was a specially dangerous one, and for this the plaintiff engaged with full appreciation of the risk. Having voluntarily and knowingly assumed this risk, now that he has suffered in consequence, he can have no recourse upon his employer.

Aside from this the case presented another feature which should have prevented its submission to the jury. The plaintiff’s accident must be referred to his own want of care; the evidence admits of no other conclusion. Before attempting the work of restoring the chain to the wheel, fully appreciating the danger to which he would be exposed, he prepared his dress with reference to it. He knew what the result would be if his clothing came in contact with the revolving shaft. He, therefore, thought to guard against this by tying a string about his person and thus confining the ends of his jacket. His precautions were inadequate. The ends of his jacket escaped and were carried by the steam or wind against the shaft with the very result which his preparations were expected to avoid. He was not lacking in appreciation of the danger, but his preparations were inadequate. For his failure in this regard his employer was not responsible.

For the reasons stated defendant’s point that under all the evidence the verdict should be for the defendant, should have been affirmed. The refusal to so instruct is the only assignment of error, and it is sustained.

Judgment reversed and judgment is now entered for the defendant.


text:
    Haley, Appellant, v. American Agricultural Chemical Company.

      Landlord and tenant — Lease—Wharf property — Cost of cleaning dock— Repairs.

    Where land abutting on a navigable river is described in a lease as exactly coterminous with a pier-constructed thereon, and as extending into the river as far as the port warden’s low water line, and the lease contains an additional grant of wharf property extending into the river from the previously described premises from port warden’s low water line to port warden’s pier headline, “together with all water rights appurtenant thereto,” the landlord cannot compel the tenant to pay the cost of cleaning the adjoining dock required under the law to be paid by the owner of the pier.
    Argued Jan. 24, 1907.
    Appeal, No. 315, Jan. T., 1906, by plaintiffs, from order of C.P. No. 4, Phila. Co., Dec. T., 1905, No. 4,063, discharging rule for judgment for want of a sufficient affidavit of defense in case of Rose Haley, Mary Coll and The Fidelity Trust Company, Executors of Adam W. Louth, deceased, v. The American Agricultural Chemical Company.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover the cost of cleaning a dock.
    The facts are stated in- the opinion of the Supreme Court. The lease contained a covenant on the part of the lessee to repair.
    The court discharged a rule for judgment for want of a sufficient affidavit of defense.

      April 1, 1907:

      Error assigned was the order of the court discharging rule for judgment for want of a sufficient affidavit of defense.

      D. Webster Dougherty, for appellants.
    The cleansing of the dock was clearly a repair and it was therefore the duty of the appellee to defray the cost thereof: Jackson & Gross’s Landlord & Tenant, sec. 1045; Walz v. Rhodes, 1 W. N. C. 49; Hoy v. Holt, 91 Pa. 88; Huber v. Baum, 152 Pa. 626; Lockrow v. Horgan, 58 N. Y. 635; Hull v. Burns, 17 Abb. N. C. (N. Y.) 317; Beck v. Philadelphia, 17 Pa. 104; O’Rourke v. Peck, 29 Fed. Repr. 223; Easby v. Philadelphia, 67 Pa. 337; Hogg v. Longstreth, 97 Pa. 255; Langdon v. Mayor, etc., of New York, 93 N. Y. 129; Muller v. Spreckels, 48 Fed. Repr. 574; Bailey’s Appeal, 9 Phila. 506; Easby v. Patterson, 7 W. N. C. 218; Nickerson v. Tirrell, 127 Mass. 236; Barber v. Abendroth, 102 N. Y. 406 (7 N. E. Repr. 417); Lewis v. Barber Asphalt Paving Co., 123 Fed. Repr. 161; Farnham on Waters, 588; Christian v. Van Tassel,. 12 Fed. Repr. 884.

      R. Stuart Smith, with him Charles E. Morgan, for appellee.
    The defendant, lessee of the real estate, is under no obligation to reimburse the landlord, because the dock is not part of the demised premises and there is no covenant in the lease on the defendant’s part to keep the dock cleaned: Easby v. City of Phila., 67 Pa. 337.
    The bed and channel of the Delaware to the middle of the river belong to the commonwealth of Pennsylvania. The title of the riparian owner extends only to low water mark, and does not include the docks, which are below low water mark. The docks are part of the public highway: Kusenberg v. Brown, 42 Pa. 173; Tinicum Fishing Co. v. Carter, 61 Pa. 21; Simpson v. Neill, 89 Pa. 183; Easby v. Patterson, 6 W. N. C. 318; s. c., 7 W. N. C. 219.
   Opinion by

Mr. Justice Stewart,

Adam W. Louth, whose estate is here represented by his executors, plaintiffs in the action, demised by written lease to the defendant company for a term of years, certain premises situated along the Delaware river front in the city of Philadelphia. The premises, so far as they are described by metes and bounds, are exactly conterminous with, a pier constructed thereon, and which extends into the river as far as the port warden’s low water line. The lease contains this additional grant, following immediately upon 'the one above stated: “ And also all that certain wharf property extending eastwardly into the river Delaware from the above described premises from port warden’s low water line to port warden’s pier headline, as shown in the said plan hereto annexed, together with all water rights appurtenant thereto.” Shortly after possession was taken under the lease the lessor received notice from the board of port wardens that he was required within thirty days thereafter to have the dock between his piers cleansed to the depth of twenty-one feet, and that failing therein the dock would be cleansed at his expense, and a lien entered against his property for the cost of the work. The lessor acquainted his lessee with this demand, and insisted that the cleansing was a burden the latter had assumed under the terms of the lease. Upon the lessee’s denial of its liability and refusal to do the work, the lessor, to avoid the filing of a lien, proceeded with the work, and completed it at a cost of $2,946.93. This action was brought by lessor’s executors against the lessee to recover for this expenditure. In the affidavit of defense filed the defendant company denies that the dock was any part of the leased premises, or that by the terms of the lease it assumed any duty or liability in connection therewith. The court, without filing an opinion, discharged a rule for judgment for want of sufficient affidavit of defense, and thus we have presented the only question in the case. The case was one for the court. The plaintiffs rest their claim entirely upon the written lease; the affidavit of defense denies nothing contained in plaintiffs’ statement of claim, except the inference plaintiffs seek to draw from the lease. No issue of fact is raised calling for the intervention of the jury. The rights of the parties depend upon a proper construction of the lease which gives rise to the controversy.

The leased premises, as we have said, so far as described by metes and bounds, consist wholly and exclusively of a pier in the river with the buildings thereon. No rights or privileges upon either side of the pier, that is to say, beyond the pier limits, were granted under the lease, and indeed none could be, since upon either side are the waters of the Delaware, and in these the lessor had no rights which were peculiar to himself, and therefore none which could be made the subject of a grant. The law imposes upon the owner of a pier the duty of cleansing the dock — which is nothing more than the basin between two adjoining piers — in proportion to the number of feet of his lot or landing on each side of the dock, not because the owner of the pier has any exclusive right or privilege in the dock, but because his pier, constructed under a license, to a greater or less extent occasions, or contributes to, the shoaling of the dock by obstructing the current of the river. It is in part the price he pays for the privilege of constructing and maintaining his pier upon the public domain; and it is in the nature of a charge upon the property which a lessee can be required to meet only as he has expressly so covenanted. It cannot be pretended that any common-law liability attaches to the lessee with respect to it; for not only is the dock distinct from the property leased, but even were it otherwise, the rule of the common law exempts the tenant from all liability for diminution in value resulting from the natural operation of time and the elements, and these are what conspire to shoal the dock. If the subject of the lease had been the dock, that is to say, the basin between the piers — which of course it could not be for the reason we have stated — it might well be argued that under the covenant to repair, it became the duty of the lessee to maintain it at the depth required by the authorities; but the subject of the lease is the pier, and neither by 'express terms nor by implication does the duty to repair extend beyond the actual thing leased. The lease might have stipulated that this particular burden was to be discharged by the lessee, but it does not. Nor is wider operation given the lease, so far as concerns the duty of cleansing the dock in the way of repair, by the added clause which makes the lease embrace that certain wharf property extending eastwardly into the river Delaware from the above described premises to the pier headlines, “ together with all water rights appurtenant thereto.” The lessor, as a riparian owner, has the right, subject to conditions and regulations imposed by the board of port wardens, to extend his pier beyond its present terminus at lo\y water line to the pier headline. This unoccupied space is in the lease described as wharf property; and the lease grants to the lessee the lessor’s rights therein, that is, the right to extend the existing pier, with all water rights appurtenant thereto. With respect to such pier extension, the rights would be just the same as those which attach to the existing structure. The owner’s control is defined by the limits of the pier however extended; in front and upon either side is the river highway, in which no individual has any right which does not belong to every other. The pier is the owner’s own peculiar property, which he may use to its farthest limit, but which no other may use except upon the owner’s terms. What is meant by the water right appurtenant thereto, if anything, is the right to invade the water of the river with the pier so far as the pier headline. If there be any other water right appurtenant, it has not been suggested. In the nature of things there can be none. All outside and beyond the actual structure is public domain, which admits of no exclusive ownership.

The order 'of the court below in discharging the rule for judgment for want of sufficient affidavit of defense, is affirmed.


author: Per Curiam,

text:
    Dull’s Estate.

      Will — Legacy—Gift of income — Gift of principal.

    Where the intent of a testator is to sever the product from its source and make a gift of the former only, a bequest of income will not carry the principal.
    Testatrix directed as follows: “I give, devise and bequeath to my son, the interest on two thousand dollars, to be paid to him semiannually, the principal to remain properly secured in the farm on which I now reside during his natural life, and at his death the principal shall be paid to his heirs.” Held, that the bequest to the son was a bequest of the income of the fund for life only.
    Argued Feb. 4, 1901.
    Appeal, No. 158, Jan. T., 1906, by William E. Fritz, from decree of O. O. Montgomery Co., Oot. T., 1903, No. 21, dismissing petition for an order to pay money in Estate of Sarah B. Dull, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.

      April 1, 1907:
    Petition for an order to pay the principal of a legacy charged on land.
    From the record it appeared that Sarah B. Dull by her will which was probated on November 17, 1885, directed, inter alia, as follows:
    “ Item. — I give, devise and bequeath to my son Boss B. Dull the interest on Two Thousand Dollars, to be paid to him semi-annually, the principal to remain properly secured in the farm on which I now reside during his natural life, and at his death the principal shall be paid to his heirs.”
    It appeared that in partition proceedings certain land of the decedent was awarded to William B. Dull, charged with the payment of the legacy of $2,000 above mentioned. It also appeared that by various assignments the interest of Boss B. Dull became invested in the petitioner, William E. Fritz. The petition averred that petitioner was entitled to the principal of the fund, since Boss B. Dull was dead. It appeared that Boss B. Dull left to survive him a widow and one son, Harry B. Dull; the latter claimed the ownership of the principal of the legacy on the ground that his father had an interest only in the income for life. The orphans’ court adopted this view and dismissed the petition.

      Error assigned ivas the decree of the court.

      Louis M. Childs, for appellant, cited :
    Bacon’s App., 57 Pa. 504; Dodson v. Ball, 60 Pa. 492; Williams’s App., 83 Pa. 377; Sheets’s Est., 52 Pa. 257.

      John Faber Miller, with him Samuel H. High, for appellee, cited:
    Myers’s App., 49 Pa. 111; Sheets’s Est., 52 Pa. 257; Bentley v. Kauffman, 86 Pa. 99; Shissler’s App., 148 Pa. 577; Bacon’s Est., 202 Pa. 535.
   Per Curiam,

It may be conceded that a devise of realty in the words of this testatrix’s will would create a fee. But this is under the rule in Shelly’s case, which has become a rale of property, and operates without regard to the donor’s intent, and generally to defeat it. But the cardinal rule which dominates all others in the construction of wills is that the intent of the testator if not unlawful shall be carried out. The exception made by the rule in Shelly’s case does not extend to bequests of personalty, and though the analogy may sometimes in default of better guide be followed, it is never allowed to defeat a plain intent. It may also be conceded that a gift of the income or profits of personalty, without more, will carry the absolute property of the donee. But this is never allowed where it appears by words of limitation or by gift over, or in other way, that the testator intended a less estate. In Eichelberger’s Estate, 135 Pa. 160 (171), an unrestricted gift of a sum of money in the first clause of the bequest was held to be limited to the interest for life, by the words that followed directing the sum to be placed at interest and the interest paid annually to the legatee for life, and if he died leaving no heirs of his body then the sum bequeathed to go over to testator’s other heirs. And in Ritter’s Est., 118 Pa. 577, a bequest of the interest of a sum of money to be paid annually for life, with no trustee interposed, no investment directed and no specific limitation over was nevertheless held only a gift for life, because the intent of the testator was clear to give only that much. The principle at the base of all the decisions is expressed in Bentley v. Kauffman, 86 Pa. 99, that where the intent of the testator is to sever the product from its source and make a gift of the former only, a bequest of income will not carry the principal.

The present case is much stronger than Ritter’s Estate, and comes exactly within Bentley v. Kauffman. The testatrix made no gift to her son of anything but the interest of the snm named, limited even that expressly to his life, directed that the principal should be charged on her farm during his life and that at his death it should be paid to his heirs. It is difficult to see how she could have made her intention plainer.

Decree affirmed.


text:
    Laubach v. Coplay Cement Manufacturing Company, Appellant.

      Negligence — Master and servant — Quarryman—Defective machinery— Case for fury.

    In an action by a quarryman against his employer to recover damages for personal injuries, it appeared that plaintiff was struck and injured by a piece of timber forming one of the braces or crosspieces at the top of the derrick, which was knocked off by collision with a bucket of stone raised from the quarry by a steam hoist. The negligence relied on by plaintiff was, first, that the derrick was defective in regard to its strength for such heavy work as it was called upon to do; and, secondly, that the steam hoist was allowed to be operated on this occasion by a boy of eighteen who was only a learner, still under instruction in the management of the engine, and who by lack of proper experience and skill ran the bucket loaded with-stone, at such speed that it struck the crosspieces and caused the accident. There was testimony on both these points. Held, that the case was for the jury.
    Argued Feb. 1, 1907.
    Appeal, No. 195, Jan. T., 1906, by defendant, from judgment of C. P. Lehigh. Co., June T., 1905, No. 22, on verdibt for plaintiff in case of Eli Laubach v. The Coplay Cement Manufacturing Company.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Trexler, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $2,375. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Evan Holben, with him Arthwr L. Biery, for appellant.

      Arthur G. JDewalt and George W. Geiser, for appellees, were not heard.

      April 1, 1907:
   Per Curiam,

Plaintiff was struck and injured by a piece of timber forming one of the braces or crosspieces at the top of a derrick, which, was knocked off by collision with.a' bucket of stone raised from the quarry by a steam hoist. The negligence relied on by plaintiff was, first, that the derrick was defective in regard to its strength for such heavy work as it was called upon to do; and, secondly, that the steam hoist was allowed to be operated on this occasion by a boy of eighteen who was only a learner still under instruction in the management of the engine, and who by lack of proper experience and skill ran the bucket loaded with stone, at such speed that it struck the crosspieces and caused the accident. As there was testimony on both these points the court could not have taken the case from the jury.

Judgment affirmed.


text:
    South Twelfth Street.

      Road law — Damages—When the right to damages accrues — Plotting a street — Opening a street.

    The right of the individual to compensation for land subjected by municipal authority to public use, can only arise when the land has been taken. Until this occurs the owner has not been disturbed in his possession, and is consequently without injury. The plotting of a street through the land of a private owner is not a taking of the land; it is simply the expression of a purpose to take it when occasion for the opening of the projected street arises.
    Where a street previously plotted has been actually opened for public use, the fact that no compensation can be recovered for the removal of any buildings erected on the bed of the proposed street after the same had been plotted, is not to be considered as a circumstance affecting the market value. Gamble v. Philadelphia, 162 Pa. 413, distinguished.
    Argued Feb. 4, 1907.
    Appeal, No. 356, Jan. T., 1906, by City of Allentown, from judgment of C. P. Lehigh Co., Jan. Term, 1906, No. 67, on verdict for plaintiffs In re Opening of South Twelfth Street from Walnut Street to Union Street in the City of Allentown.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Trexler, P. J.
    At the trial the defendant presented the following points:
    1. In estimating the damages to which the plaintiffs are entitled, the jury shall consider the value of the plaintiff’s ground before the taking and the value of the remainder after the taking and the difference, if the damages are greater than the benefits, will be the plaintiff’s damages. Answer: This is affirmed as a proposition of law, although in this case the only evidence as to the remainder of the plot that is left to the Grims is that it was of the same value as the portion taken by the street so that, as I have said before, the real question before you is, what were the sixty feet worth at the time of the taking. [1]
    2. In estimating the value of the property, the jury shall consider what would affect the market value of'the property at the time before the street was opened; whatever a prospective purchaser might take into consideration; its location with reference to other property; its location with reference to open streets, and its location with reference to plotted streets. Answer: This is negatived. The point contains a true proposition of law, but the only evidence of the plotting of the street is the plotting of: Twelfth street over the property in question : in the view of the court that has nothing to do with the case and the jury is instructed to disregard it. [2]
    3. If, by the general conduct of the plaintiffs and their predecessors in title, the property at the southeast corner of Twelfth and Walnut streets became in fact a corner lot and through continuous use or by the deeds of conveyance or otherwise the bed of Twelfth street south of W'alnut street became subject to an easement in favor of the lot at the southeast corner of Twelfth and W'alnut streets, then this fact must be taken into consideration by the jury as an element decreasing plaintiff’s damages and the damages for which defendant is liable. Answ&r: This is negatived because there is no evidence in the case to support the facts alleged in the point. [3]
    4. The plotting of a street is an incumbrance and no person shall be entitled to any damages for any buildings or improve-meats of any kind which shall or may be placed or constructed upon or within the lines of any located street or alley after the same shall have been located or ordained by councils. The street in question having been, ordained and plotted and placed on the city plan in 1870, and the plaintiffs having purchased the property subject to restrictions caused by the ordaining, plotting and placing of South Twelfth street from Walnut street south upon the city plan, the jury, in considering the value of plaintiffs’ property immediately befoi’e the taking, must consider its value in the open market subject to the restrictions caused by South Twelfth street being ordained, plotted and placed upon the city plan over the property in question. Answer: This is negatived. [4]
    5. The jury, in considering the value of the property before taking, must take into consideration ■ the fact that no buildings or improvements of any kind coaid be placed or constructed within the lines of the located and ordained street, or if any buildings or improvements were so placed or constructed, no damages could be recovered for their removal or destruction. Answer : This is correct as a proposition of law, but is negatived for the purpose of this case because there is no evidence on the part of the plaintiff of any buildings or constructions along the street opened. [5]
    6. Where the owner of ground having sold all the ground adjoining, well knowing or being presumed to know that a street had been laid out over the precise portion which he retained and which neither he nor any other person could use for building purposes, he can recover for the value of the ground only; and that ground with reference to its condition and value at the time of the taking as affected by the street ordained and plotted upon it. Answer: This is refused. [6]
    Yerdict and judgment for plaintiff for $4,900. Defendant appealed.

      Errors assigned were (1-6) above instructions, quoting them.

      Leo Wise, city solicitor, for appellant.
    After the street has been plotted or located the owner cannot recover for buildings or improvements placed thereon. Yet in this case the court ruled that while he could not improve his own property, he was entitled to the benefit of his neighbors having improved their properties and thus having increased the value of ground in the vicinity. The more logical reasoning would seem to be that the value of the ground was fixed when the street was located or plotted and that when the city took actual possession of the street the owner should be paid therefore only what the ground was worth at the time of the location or plotting, plus, perhaps, the interest: Gamble v. Phila., 162 Pa. 413; Hancock v. Phila., 175 Pa. 124; Fitzell v. Phila., 211 Pa. 1; Neely v. Philadelphia, 212 Pa. 551.
    April 1, 1907:

      Edwin H. Stine and Thomas F. Diefenderfer, for appellees, Jacob W. Grim et al.
    The correct rule is, to take the value of the land before the opening of the street, unaffected by the plotting. The plotting must be considered as part of the damages inflicted by the city for which recovery is postponed until after entry is made, and the value of the land before and after the opening will furnish the two elements by which the damages are ascertained. In this case, the entire land being taken, the only question was its market value before the taking: Bush v. McKeesport City, 166 Pa. 57; Forbes Street, 70 Pa. 125; Brooklyn Street, 118 Pa. 640; Wayne Ave., 124 Pa. 135; Bellefield Ave., 2 Pa. Superior Ct. 148; McMullin v. Pittsburg, 53 Pitts. L. J. 159.
   Opinion by

Mr. Justice Stewart,

The right of the individual to compensation for land subjected by municipal authority to public use can only arise when the land has been taken. Until this occurs the owner has not been disturbed in his possession, and is consequently without injury. The plotting of a street through the land of a private owner is not a taking of the land ; it is simply the expression of a purpose to take it when occasion for the opening of the projected street arises. In this instance an interval of nearly forty years occurred between the plotting and the opening of the street. Appellant’s contention that the owner’s compensation is to be measured by the market value of the land, as of the date when the street was plotted, finds no support in reason or authority. It is sufficiently answered in what we have said.

Equally untenable is the other position taken, viz.: that if the true measure of compensation be the market value of the land when taken, the fact that no compensation could be recovered for the removal of any buildings erected on the bed of the proposed street after the same had been plotted, is to be considered as a circumstance affecting such market value. This is simply asserting the right of confiscation in a modified form, only feebly disguised. By reason of the plotting the owner is virtually denied the privilege of building on his land, and it is argued that with this privilege extinguished the land would have a much reduced value in the estimation of the average buyer. Of course, it would. But who is responsible for this reduction ? Not the owner; the impairment of value resulted from nothing he had done, but as the immediate consequence of the steps' taken by the municipality towards the appropriation, in invitum, of the owner’s land. In the present case it is quite clear that without the right to build upon the land, this narrow strip, sixty feet wide, located as it is, Avould be of little if any value. This then is the contention, that the municipality in the furtherance of public ends, having stripped the land of nearly its entire value, uoav Avhen it seeks to accomplish fully its purposes in connection therewith, is to be allowed to acquire the land by paying a sum measured by the little value the municipality has left in it. Such a result would be a travesty on the constitutional provision which requires in all such cases just compensation to be made for the property taken. Of course the case of Gamble v. Philadelphia, 162 Pa. 413, so much relied upon by the appellant, is no authority for any such doctrine. The only resemblance between this case and that is, that the demand in both was for' compensation for ground taken for a public street. In that case, the measure adopted was the market value of the land without the privilege of building thereon; but that Avas because the'owner himself, by his OAvn act, in conveying certain lots fronting on the proposed street, granted to his vendees the right of Avay upon and over the ground subsequently appropriated by the municipality, but Avhich Avas then his own individual property. This right of way so conveyed Avould have existed thereafter had the street never been open ; and neither the owner nor those claiming under him could have obstructed it by building or otherwise; so that when the city afterwards appropriated the land, this right of building on the land having been parted with by the owner, the city could only be called upon to make just compensation to the owner for what it had taken from him.

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


text:
    Scott Manufacturing Company v. Morgan, Appellant.

      Mechanic’s lien — Materials—Sale on personal credit — Waiver.
    While it is true that a creditor may have more than one lien for the same debt yet a sale of materials on personal credit, either of the owner or the contractor, is some evidence at least of a waiver of the lien under the mechanic’s lien law, and raises a question of fact for a jury.

      Affidavit of defense — Practice, C. P. — Promissory note — Impounding note.

    Where in an action for goods sold and delivered an affidavit of defense avers that notes had been given for the goods, and were in the hands of innocent holders for value, and at a hearing on a rule for judgment for want of a sufficient affidavit of defense plaintiff’s counsel produces the notes in open court, to show that they were still in the hands of the plaintiff, the court has no power to impound the notes, and make absolute the rule for judgment. Such action involves going outside of the record in an inquiry into the facts at a stage of the case where such an inquiry is not permissible.
    Argued Feb. 4, 1907.
    Appeal, No. 394, Jan. T., 1906, by defendant, from judgment of C. P. Montgomery Co., June T., 1906, No. 53, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Scott Manufacturing Company v. George C. Morgan.
    Before Mitchell, C. J., Fell, Bjrown, Mestrezat and Stewart, JJ.
    Reversed.
    Scire facias sur mechanic’s lien.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.

      April 1, 1907:

      F. W. Woods, with, him Wm. F. DanneTiower, for appellant.

      Gilbert Sodmcm Fox, with him M. M. Gibson and W. H. Larzelere, for appellee.'
   Per Curiam,

This was not a case for a summary judgment. As said by the learned judge below “ the defenses set up are numerous and somewhat confused,” but it is by no means clear that several of them do not raise questions of fact as well as law that require a jury; as, for example, whether the machinery in question is a proper subject of mechanic’s lien, and whether it was furnished on the credit of the building or on the personal credit of the purchaser. While it is true, as the court remarked, that a creditor may have more than one lien for the same debt yet a sale of materials on personal credit, either of the owner or the contractor, is some evidence at least of a waiver of the lien under the mechanic’s lien law, and raises a question of fact for a jury : Presbyterian Church v. Allison, 10 Pa. 413; Barclay v. Wainwright, 86 Pa. 191; Hommel v. Lewis, 104 Pa. 465; Green v. Thompson, 172 Pa. 609.

But we need not consider any of these matters in detail now, as there is one defect fatal to the judgment. The defendant paid for the machinery (whether absolutely or conditionally being in dispute) by negotiable notes, and the affidavit sets out that these notes, in violation of the agreement, have passed to bona fide holders for value. On this point the learned judge below said, “ the counsel for plaintiff produced the notes at bar as evidence that they were still in the hands of the plaintiff. If these notes are deposited with the prothonotary before any execution process issues on the judgment that is hereby allowed to be entered, the defendant will be fully protected. The court can then control the use of the notes so that they may not be used to the prejudice of the defendant, and at the same time the court can make any subsequent order in reference to the notes that justice and equity may demand.” This, however, was going outside of the record in an inquiry into the facts at a stage of the case where such inquiry was not permissible. For purpose of judgment the affidavit must be accepted as verity : Columbia Nat. Bank v. Dunn, 207 Pa. 548.

Judgment reversed and procedendo awarded.