author: Mr. Justice Fell,

text:
    Booth v. Wolff Process Leather Company., Appellant.

      Mortgage — Nonpayment of taxes — Principal becoming due — Assignment.

    1. A provision in a mortgage that a failure to pay taxes on mortgaged premises shall make the whole of the principal debt due, is a proper provision and will be enforced.
    2. On a scire facias sur mortgage, the fact of the existence of an unrecorded assignment is no defense where it appears that the assignment had been executed in order to facilitate the carrying out of an agreement which had been in contemplation but had been abandoned and never went into effect, and that the assignment had not been delivered, that it transferred nó right, and that it was in the absolute possession and control of the plaintiff by whom it was produced.

      Practice, C. P. — Rules of court — Construction of rule — Affidavit of defense — Trustee in bankruptcy.

    3. A rule of the court of common pleas was as follows: “ An affidavit of defense shall be required from executors, administrators, guardians, committees and others sued in a representative capacity. Provided, that an affidavit by the defendant in such cases, stating that he has made diligent inquiry and has not been able to obtain sufficient information to enable him to set forth particularly the nature and character of the defense, but that he believes there is a just and legal defense, shall be deemed a sufficient compliance with the rule.” The court decided that the proviso did not apply to a trustee in bankruptcy.
      Held, that such a trustee had no standing to dispute the court’s construction of its own rule.
    May 10, 1909:
    Argued March 23, 1909.
    Appeal, No. 15, Jan. T., 1909, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1908, No. 3,842, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Alfred Booth et al., trading as A. Booth & Company, v. Wolff Process Leather Company, Mortgagor, and Benjamin H. Ludlow, Trustee, Real Owner.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense on a scire facias sur mortgage.
    The facts are stated in' the opinion of the Supreme Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit' of defense.

      Humbert B. Powell, for appellant. —
    The legal title cannot exist at the same time, both in the assignor and assignee: Pryor v. Wood, 31 Pa. 142; Pepper’s App. 77 Pa. 373.
    A rule of court has the force of law and is binding on the court as well as upon the parties: North Whitehall Twp., 47 Pa. 156; Schrimpton v. Bertolet, 155 Pa. 638; Com. v. B. & L. Assn., 31 Pa. C. C. Rep. 235.

      W. Horace Hepburn, for appellees.
   Opinion by

Mr. Justice Fell,

This appeal is from an order making absolute a rule for judgment for want of a sufficient affidavit of defense in an action on a mortgage. The mortgage was payable in four yearly installments and it contained a provision that, in the event of default in payment of an installment or of interest or of taxes on the property mortgaged, the whole of the principal debt should become due. This provision was set out in the scire facias and it was alleged in the writ that default had been made in the payment of an installment of the principal and in the payment of taxes assessed against the mortgaged premises. No defense was made by the mortgagor. Four affidavits of defense were filed by his trustee in bankruptcy, the terre-tenant, and a rule was taken by him for the production of papers. These affidavits, with the answer to the rule and the copies of the papers produced, make a voluminous record of some forty pages, the details of which it is unnecessary to discuss. The attempt of the defendant was to set up a new agreement, changing the time for the payment of the installments of principal, under which there had been no default in payment. If it be conceded that such an agreement went into effect, and the averment of its delivery appears to have been studiously avoided, the allegation that the taxes for the preceding year were unpaid remains undenied. The fact of the nonpayment of the taxes made the whole of the principal debt due according to the terms of the mortgage, and this without regard to the other question in the case: Williams v. Graver, 152 Pa. 571.

There are two grounds of defense argued that may be briefly noticed. One is that the mortgage had been assigned before suit brought by the plaintiff. This allegation was based on the fact that an unrecorded assignment was produced with other papers by the plaintiff in response to the rule taken by the defendant. But the answer to the rule contained an averment that the assignment had been executed in order to facilitate the carrying out of an agreement which was in contemplation but was abandoned and never went into effect, and that the assignment had not been delivered; that it transferred no right, and that it was in the absolute possession and control of the plaintiff, by whom it was produced. If the defendant had any fears that his knowledge of the existence of an unrecorded assignment exposed him to the danger of a second action, he could readily have resolved the doubt by inquiry of the assignee named.

The second ground is that the averments in the third affidavit of defense of the defendant’s belief that he had a just and legal defense to the mortgage and that he had made diligent inquiry and had not been able to. obtain sufficient information to enable him to set forth particularly the nature and character of the defense were sufficient to prevent judgment under rule 3 of the court. The section of the rule referred to is as follows: “An affidavit of defense shall be required from executors, administrators, guardians, committees and others sued in a representative capacity: Provided, That an affidavit by the defendant in such cases, stating that he has made diligent inquiry and has not been able to obtain sufficient information to enable him to set forth particularly the nature and character of the defense, but that he believes there is a just and legal defense, shall be deemed a sufficient compliance with this rule.” The court of common pleas has not construed this section to apply to a trustee in bankruptcy and there are obvious reasons why it should not extend to him, since he may possess himself of all the knowledge the bankrupt has. Manifestly we would not be warranted in holding that the court erred in the construction of its rule.

The judgment is affirmed.


source: Caselaw Access Project

author: Me. Justice Mesteezat,

license: Public Domain

text:
    Wagner, Appellant, v. Burnham.

      Bankruptcy — Set-off—Sec. 68 of Federal act — Mechanics’ liens.

    1. Where a contractor for a building is adjudicated a bankrupt and it appears that subcontractors’ liens had become fixed upon the building at the commencement of the work before the adjudication in bankruptcy, and had been perfected by the filing of liens after the adjudication in bankruptcy, but within the statutory period, and it also appears that the owners had paid the liens, such payments may be set off by the owners in an action brought by the trustees of the bankrupt to recover a balance due the bankrupt on the building contract.
    2. While the primary debtor of the subcontractors was the contractor whose duty it was to pay the claim, the property of the defendants, and hence the defendants themselves, were the statutory sureties for the payment of the debt of the bankrupt to the subcontractors. A surety paying the debt of his principal after the bankruptcy may, under the bankrupt act of 1898, set off the amount so paid against his debt to the bankrupt.

      3. The rules relating to set-off which prevail in the federal courts, must be observed by the state courts in construing the bankrupt act.
    4. A counterclaim provable against the estate of a bankrupt by his debtor in an action brought by the trustee, is such claim as is provable in its nature at the time the set-off is sought to be enforced. The status of the claim at that date determines its provability in contemplation of the bankruptcy act.

      5. The counterclaim which may be set off in an independent action brought by a trustee in bankruptcy is one that is provable in its nature, and need not necessarily be one that has been or may yet be proved in the bankruptcy proceeding.
    Argued March 24, 1909.
    Appeal, No. 16, Jan. T., 1909, by-plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1908, No. 3,842, discharging rule for judgment for want of a sufficient affidavit of defense in case of Louis Wagner, Trustee in Bankruptcy of Charles Gilpin, v. George Burnham et al., Co-partners, trading as Burnham, Williams & Company.
    Before Mitchell, C. J., Fell, Mesteezat, Pottee and Elicin, JJ.
    Affirmed.
    Assumpsit to recover balance due on a building contract. Before Beégy, J.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Supreme Court.

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

      Humbert B. Powell, with him Thomas O. Peirce, for appellant. —
    The defendants have no right to set off against the claim of the trustee in bankruptcy, a claim which was wholly contingent at the moment of bankruptcy: Re City Bank, 6 Nat. Bankr. Reg. 71; Libby v. Hopkins, 104 U. S. 303; Rose v. Hart, 8 Taunt. 499; Riggin v. Magwire, 82 U. S. 549; Dunbar v. Dunbar, 190 U. S. 340 (23 Sup. Ct. Repr. 757); French v. Morse, 68 Mass. 111; Jemison v. Blowers, 5 Barb. (N. Y.) 686; McNeil v. Knott, 11 Ga. 142.
    Under the earlier cases, the time of the institution of bankruptcy proceedings governed. If the claim was at that mo-

      May 10, 1909:
    ment contingent, it could not be proven: Ex parte Groome, 1 Atk. 115; Sampson v. Burton, 2 Brod. & B. 89; Brown v. Cuming, 2 Caines, 33; Boyd v. Mangles, 16 M. & W. 337; Abbott v. Hicks, 5 Bing. N. C. 578.
    The Pennsylvania cases are unanimous in their adherence to this rule, the majority of instances arising where the insolvency took the form of an assignment for the benefit of creditors. The leading cases are as follows: Miller’s App., 35 Pa. 481; Dean’s App., 98 Pa. 101; Jordan’s App., 107 Pa. 75; Weinmann’s Est., 164 Pa. 405; Potter v. Gilbert, 177 Pa. 159; Chestnut St. Trust, etc., Co.’s Assigned Est., 217 Pa. 151.
    Under the act of 1898, the rights of claimants to share in the distribution of the estate of the bankrupt are fixed by the status of their claims at the time of the filing of the petition in bankruptcy: Section 63; In re Bingham, 2 Am. B. R. 223 (94 Fed. Repr. 796); Swarts v. Fourth Nat. Bank, 8 Am. B. R. 673 (117 Fed. Repr. 1). See also In re Pettingill, 14 Am. B. R. 728.
    The following authorities show, either directly or by positive inference, that a right to set-off will not be enforced where the equity of a third party intervenes: Hibert v. Lang, 165 Pa. 439; Leitz v. Hohman, 207 Pa. 289; Craighead v. Swartz, 219 Pa. 149; Fera v. Wickham, 135 N. Y. 223 (31 N. E. Repr. 1028).

      John G. Johnson, with him James Wilson Bayard, for appellees. —
    The trustee in bankruptcy in this case has under the act of 1898 and its supplements no higher rights than the bankrupt himself.
    The effect of the bankruptcy was to make all claims of the subcontractors against the bankrupt forthwith due. Mechanics’ liens are not affected by the bankruptcy act: Keller v. Denmead, 68 Pa. 449; Weaver v. Sheeler, 118 Pa. 634; Bassett v. Baird, 85 Pa. 384; Kane Co. v. Kinney, 174 N. Y. 69 (66 N. E. Repr. 619); In re Grissler, 136 Fed. Repr. 754.
   Opinion by

Me. Justice Mesteezat,

We think the learned court below was right in discharging the rule for judgment for want of a sufficient affidavit of defense. Charles Gilpin entered into a contract with the defendants to tear down an old building and erect a new building in the city of Philadelphia. After performing part of the work, he filed a voluntary petition in bankruptcy and was duly adjudicated a bankrupt. The plaintiff is his trustee in bankruptcy. At the date of the bankruptcy, Gilpin was indebted to certain subcontractors for work done and materials' furnished who subsequently to that date entered mechanics’ liens against the property of the defendants to enforce their claims. The defendants were compelled to pay these claims. This suit was brought by the trustee to collect the amount due Gilpin on the contract, and the defendants claim as a defense a set-off for the amount which they were compelled to pay the subcontractors on the mechanics’ liens filed against their property. The right to interpose this set-off as a defense in this action and thereby defeat the plaintiff’s recovery is the only question in the case.

The right to the set-off depends upon the provisions of the bankruptcy act of 1898 relative thereto. The part of the act controlling the question is sec. 68, which provides, inter alia, as follows: “ In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid. A set-off or counterclaim shall not be allowed in favor of any debtor of a bankrupt which is not provable against the estate.” Is the counterclaim or set-off of the defendants in this action allowable under this provision of the bankruptcy act? It is strenuously contended by the plaintiff that the defendants’ claim was contingent, uncertain, was not provable against the bankrupt at the date of the adjudication in bankruptcy and, therefore, cannot be allowed as a set-off. This view, however, we think, entirely overlooks the nature and character of the defendants’ claim as well before as at the time it was interposed as a set-off. At the date of the adjudication, the bankrupt was indebted to the subcontractors on the claims which were subsequently .paid by the defendants. The primary liability for payment of these claims rested upon the bankrupt, and the claims could have been enforced against him to the extent of his liability to pay. By the law of this state, however, the subcontractors had a lien against the property of the defendants for the work done and the materials furnished by them. This property was made subject to a statutory lien to secure the payment of the debts of the subcontractors, and by a subsequent section of the statute the lien of the claim took effect “as of the date of the visible commencement upon the ground of the work of building the structure or other improvement.” The lien of the subcontractors’ claim, therefore, began with the commencement 'of the work on the defendants’ premises, and was of course in full force and effect at the date of the adjudication in bankruptcy. It was inchoate from the beginning, it is true, but it was an existing claim or demand for which the defendants’ property was liable on failure of the contractor to pay. During the time for filing the lien, the subcontractors had a preferential statutory claim in the nature of a nonperfected equitable lien which was perfected by filing the lien after the adjudication in bankruptcy but within the statutory period: In re Grissler, 136 Fed. Repr. 754. The statute provides the method for perfecting and enforcing the lien, and the bankruptcy of the contractor does not prevent its enforcement. Section 20 of the Mechanics’ Lien Law of June 4,1901, P. L. 431, 3 Purd. (13th ed.) 2487, makes specific provision for the enforcement of the claim after the insolvency or bankruptcy of the contractor as follows: “ When any such contract has been suspended or ended, the right to file a claim or to sue under the contract shall remain; and may be exercised with the same effect as if further proceedings, under such contract had been determined by consent of all parties.” The work was done and the materials were furnished prior to the adjudication in bankruptcy. The subcontractors, therefore, had the right to file a lien and enforce it under the terms and within the statutory period provided in the act of 1901. The lien, however, of the subcontractors did not arise or was not created by the filing of the claim in the common pleas for the purpose of its enforcement, but came into existence at the. commencement of the improvement of the defendants’ property by the contractor. The claim, therefore, of the subcontractors, now held by the defendants and proposed to be set off by them against the plaintiff’s demand, existed in its inchoate form at the date of the adjudication in bankruptcy, and was subsequently perfected by filing a lien in conformity with the provisions of the act of 1901. While the primary debtor of the subcontractors was the contractor whose duty it was to pay the claim, the property of the defendants, and hence the defendants themselves, were the statutory sureties for the payment of the debt of the bankrupt to the subcontractors: Bassett & Brown v. Baird, 85 Pa. 384. A surety paying the debt of his principal after bankruptcy may, under the bankrupt act of 1898, set off the amount so paid against his debt to the bankrupt: In re Dillon, 100 Fed. Repr. 627. It is clear, we think, that the claim of the defendants sought to be set off in this 'action is for money expended by them as quasi surety for the bankrupt and is, therefore, a “mutual credit-” within contemplation of sec. 68 of the bankrupt act. It should not be overlooked that the right of the debtor to a set-off in an action brought against him by the trustee is not based upon the rules of equitable set-off administered in the state courts, but upon those rules which prevail in the federal courts which are generally broader and more liberal in permitting the set-off. These rules must be observed by the state courts in construing the bankrupt act.

Is the proposed set-off “provable against the estate” of the bankrupt within the meaning of sec. 68 of the act? This question must receive an affirmative answer unless we interpret the section differently from the decisions of two courts of the highest respectability, one of which is a federal court whose construction of an act of congress we must accept. After a very careful consideration of the bankruptcy act we are satisfied that the conclusion of those courts is correct, and that a counterclaim “provable against the estate” of the bankrupt by his debtor in an action brought by the trustee, is such claim as is provable in its nature at the time the set-off is sought to be enforced. The status of the claim at that date determines its provability in contemplation of the act of congress. This is conclusively shown by Holmes, C. J., now a justice of the supreme court of the United States, in the opinion in Morgan v. Wordell, 178 Mass. 350; s. c., 55 L. R. A. 33. This was an action by a trustee of a bankrupt, and the defense was set-off, the defendant claiming that he occupied the position of a quasi surety who had paid and therefore was subrogated to the claim of a joint creditor of himself and the debtor. The right to a set-off under sec. 68 of the bankrupt act was the question at issue, and in delivering the opinion the chief justice said, inter alia: “The defendant also claims a set-off by virtue of his covenant. We assume that it has been adjudicated between the parties in the district court that the defendant has not a claim which he could prove in his own name, and that this decision carries with it the corollary that he could not prove his claim on the covenant against the estate. If, therefore, the prohibition of a set-off of a claim ‘which is not provable against the estate’ is to be taken with simple literalness as applying to any claim that could not be proved in the existing bankruptcy proceedings, the defendant’s set-off cannot be maintained. But we are of opinion that the seemingly simple words which we have quoted must be read in the light of their history and in connection, with the' general provision at the beginning of sec. 68 for a set-off of mutual debts ‘or mutual credits,’ and that so read they interpose no obstacle to the defendant’s claim. The provision for the set-off of mutual credits is old. But while the provision as to mutual credits was thought to be more extensive than that as to mutual debts, it was held that even the broader phrase did not extend to claims which, when the moment of set-off arrived, still were wholly contingent and uncertain, such, for instance, as the claim upon this covenant would have been if the defendant had not yet been called upon to pay anything upon the original partnership debt. But the momeiit when the set-off was claimed was the material moment. The defendant’s claim might have been contingent at the adjudication of bankruptcy, and so not provable in the absence of special provisions such as are to be found in the later bankrupt acts in England and in the United States act of 1867, although not in the present law, and yet if it had been liquidated, as here by payment, before the defendant was sued, he was allowed without question to set it off. [Citing authorities.] The limitations worked out by these decisions were expressed in the section of the act of 1867 cited above, in the words, 'but no set-off shall be allowed of a claim in its nature not provable against the estate.' These words, as it seems to us, following the cases, refer yet to the nature of the claim at the moment when it was sought to set it off, not to its nature at the beginning of the pending bankruptcy proceedings, and did not prevent a set-off of a claim which was liquidated at the later moment merely because, when the bankruptcy proceedings began, for some reason it did not admit of proof. . . . 'Provable' means provable in its nature at the time when the set-off .is claimed, not provable in the pending bankruptcy proceedings.'' This case is followed and approved by the United States circuit court of appeals in Norfolk & W. Ry. Co. v. Graham, 145 Fed. Repr. 809. In that case it is said, inter alia (p. 813): “We think that the true solution of the question before us is that the counterclaim which may be set off in an independent action brought by the trustee is ... . one that is provable in its nature, and need not necessarily be one that has been, or may yet be, proved in the bankruptcy proceeding. ... It may be true that Pages' liability to the company was at the time of the filing of the petition and at the date of the adjudication contingent. But before this liability was asserted as a counterclaim it had become fixed and certain in amount. It was certainly provable in its nature when it was asserted in the court below.” •

It follows from what has been said that the judgment of the common pleas should be affirmed.

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


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

      Negligence — Railroads—Collision with street car — Case for jury.

    1. In an action by a passenger in a street railway car against a steam railroad company to recover damages resulting from a collision between the street car and a train at a crossing of the two roads an inference of negligence arises against the railroad company where it appears that its watchman signaled the street car to cross when there was not time for it to do so before the train backed on the crossing. In determining whether there was time to cross, the speed of the train and the probability of the street car's being accidentally delayed were to be taken into consideration.
    2. In an action by a passenger on a street car against a railroad company to recover damages for personal injuries sustained at a grade crossing, it appeared that the car was stopped five feet from the safety gates, which were up, and the conductor went forward on the crossing. When he reached the railroad tracks, the defendant's watchman who was stationed in a tower from which he operated the gates signaled to him to go ahead and he in turn signaled to the motorman to cross. When the car reached the middle of the crossing, the motorman saw a train of tank cars 125 or 150 yards from him, of the approach of which no signal had been given. He turned the power on quicldy in order to get across. The car stopped on the railroad tracks and the back end of it was struck within a few seconds afterwards. The time given by the witnesses during which the car stood before the collision, varied from one to six seconds. The stopping of the car was due to the trolley getting off the wire or to the blowing out of the hood switch, a device designed to prevent the burning out of the motor in case the power is turned on too rapidly. Held, that the case was for the jury.
    Argued March 26, 1909.
    Appeal, No. 3, Jan. T., 1909, by-plaintiffs, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 3,199, on verdict for defendant in case of Roland McGuigan v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Mestrezat, Elkin and Stewart, JJ.
    Reversed
    Trespass to recover damages for personal injuries. Before WlLTBANK, J.

      May 10, 1909
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      David Waller stein, with him John G. Dunlap and Francis Fisher Kane, for appellant. —
    The jury should have been al-
    lowed to pass on the question of the defendant’s negligence: Custer v. B. & O. R. R. Co., 19 Pa. Superior Ct. 365; Philadelphia & Reading R. R. Co. v. Killips, 88 Pa. 405; Lehigh Valley R. R. Co. v. Brandtmaier, 113 Pa. 610; Seifred v. Pennsylvania R. R. Co., 206 Pa. 399; Doud v. Delaware, etc., R. R. Co., 203 Pa. 227; Beach v. Pennsylvania R. R. Co., 212 Pa. 567.

      John Hampton Barnes, for appellee.
   Opinion by

Mr. Justice Fell,

The plaintiff was injured in a collision between a street car in which he was a passenger and a train of oil tank cars which was running backwards at a street crossing of the defendant’s road. The street car was stopped five feet from the safety gates, which were up, and the conductor went forward on the crossing. When he reached the railroad tracks, the defendant’s watchman, who was stationed in a tower from which he operated the gates, signaled to him to go ahead and he in turn signaled to the motorman to cross. When the car reached the middle of the crossing, the motorman saw a train of tank cars 125 or 150 yards from him, of the approach of which no signal had been given. He turned the power on quickly in order to get across. The car stopped on the railroad tracks and the back end of it was struck within a few seconds afterwards. The time given by the witnesses during which the car stood before the collision, varied from one to six seconds. The stopping of the car was due to the trolley getting off the wire or to the blowing out of the hood switch, a device designed to prevent the burning out of the motor in case the power is turned on too rapidly.

Under this state of facts a verdict was directed for the defendant on the ground that the evidence would not justify a finding of negligence on its part. In this conclusion we are unable to concur. The situation at the crossing as to safety was largely in the charge of the defendant’s watchman. It was his duty to observe the movement of trains and to give warning of danger to persons about to cross. Others were not relieved of the duty of vigilance but their actions would be to a great extent influenced by his assurance of safety. To signal for a street car to cross, when there was not ample time for it to do so before the oil cars would be backed on the crossing • was ground for the inference of negligence. In determining whether there was time for it to cross, the speed of the approaching train and the probability of the car’s being accidently delayed were to be taken into consideration. The conductor was not to be given the bare chance, with a margin of safety of a few seconds, to get over if nothing happened, but a reasonable opportunity in view of the probability that something might happen to retard or entirely stop the progress of the car. The stoppage of a car by the coming off of the trolley is not an unusual occurrence, especially at a railroad crossing, where the jar of the car in crossing the tracks may cause it. If the car stopped because the hood switch was blown out, by the rapid turning on of the power, the stoppage was due to the motorman’s effort to escape a danger into which he had been led by the watchman’s signal. We do not decide that there was negligence that would make the defendant responsible, but that the question of negligence was for the jury. The effect of the release given by the plaintiff to the street car company was not passed upon by the .learned trial judge, because it was unnecessary to do so in view of the conclusion he reached as to the proof of negligence, and- our consideration of it at this time would be premature.

The judgment is reversed with a venire facias de novo.


author: Mr. Justice Mestbezat,

text:
    Mosier v. Wolverton, Appellant. .

      Practice, C. P. — Trial of several cases together — Trespass—Joint verdict.

    Where a person brings three several actions of trespass for assault and battery against three separate defendants, and it is agreed that the cases should be tried together, and that the jury should render a ver-' diet in each of the three cases "separately with respect to the liability, if any, of each of the defendants,” it is error for the court to permit the jury to return a verdict for a single amount against the three defendants, and to order judgment thereon in favor of the plaintiff against the three defendants jointly.
    Argued March 26, 1909.
    Appeals, Nos. 19, 20 and 21, Jan. T., 1909, by defendants, from judgment of C. P. No. 2, Phila. Co., June T., 1904, No. 2,516, on verdict for plaintiff in cases of H. Cassale Mosier v. Runyon Wolverton, H. Cassale Mosier v. Charles R. Hamilton and H. Cassale Mosier v. Florence W. Hamilton.
    Before Mitchell, C. J., Fell, Mestrezat, Elicin and Stewart, JJ.
    Reversed.
    Trespass for assault and battery.
    In disposing of a motion for a new trial Wiltbank, J., filed the following opinion :
    This was a second trial. The sixth, seventh, eighth and ninth reasons for a new trial have been considered together, and will be disposed of as growing out of one circumstance, which was the request of the parties plaintiff and defendants through their counsel, when the cases were called for trial, and after the jury had been sworn as to the defendant Charles R. Hamilton, that the jury be sworn as to the two other defendants jointly with Charles R. Hamilton, and the cases be tried as one. The jury was accordingly sworn to try the issue between the plaintiff and the three defendants together.
    Three actions had been brought, growing out of an alleged assault and battery upon the plaintiff by a man, his wife and his wife’s brother, in a room of the house of the first named, which had been assigned to the plaintiff as a governess or attendant of a child of the family. The persons engaged, the time and the place were the same. Two of these actions had been instituted in this court, and a third in the court of common pleas No. 3, from which it was later certified to us; and the three cases appeared consecutively on the trial list on Monday, November 2, 1908, on a special order for trial.
    When the case closed no points were presented on the part of the defendants bearing upon the subject of the four reasons for new trial we are considering; the court charged the jury upon the assumption that the defense was urged by the group of three, and not by separate members of that group, the instructions purposely discussed the defendants as a joint body; and the jury found one verdict as against the group, which was accepted and recorded. No exception was taken to the form of the verdict before it was entered, nor was any motion made that the jury be further instructed and sent out to determine if any, and what, part of the damages awarded should be charged to one or more of the defendants separately, so that the general finding should not bear upon all indifferently.
    The record stood thus until the presentation of the bill of exceptions, when for the first time the trial judge was informéd that two papers had been filed by counsel, of their own motion, some time before the trial, and that the disregard of these by him had been error involving a mistrial, notwithstanding the concession that he had known nothing of them till thus apprised, and that the defendants might at any stage of the trial have called attention to them, as especially within their knowledge.
    The substance of these papers was as follows:
    On May 4, 1905, the plaintiff and Runyon Wolverton and Charles R. Hamilton, two of the defendants, agree that their cases shall be tried together, if reached, as of May 10, 1905, the jury by its verdict “to find separately with respect to the liability of each of the defendants.” The trial judge assumed that the three were to go to the proofs and the jury separately, and, as already stated, he directed that the panel be sworn in one only. This was done, and immediately thereupon application was made that the jury be sworn in all three together, and this colloquy was had, and noted by the official stenographer:
    Counsel for plaintiff and defendants move the court that these three cases be tried together.
    The Court: Do you agree to that?
    Mr. Shields: Yes, sir.
    Mr. Monihan: Yes, sir; we agree.
    During the trial there arose an argument as to the competency of a question of counsel, and this colloquy was had, which likewise was noted by the official stenographer:
    Mr. Shields: Will your honor allow me to have these objections noted as of record in the Wolverton case?
    The Court: This testimony is in all three cases, so that an exception here goes to all three.
    Mr. Monihan: Exceptions, so far as the injuries to the abdomen are concerned cannot affect the case of Mr. Wolverton and Mrs. Hamilton.
    The Court: We are trying three cases. Every ruling I make applies to the three cases. If it is error as to one it may be corrected as to the other two. You cannot tell. You are simply bound by it. If Mr. Shields feels I have made a mistake in ruling as to one man he cannot object if it is applicable to the other two, and so with you.
    This was assented to.
    On June 25, 1907, the plaintiff and Runyon Wolverton and Florence W. Hamilton, two of the defendants, agreed that “their cases shall be tried together when the first-named case is reached” — (the case against Wolverton) — “the jury by its verdict to find separately with respect to the liability, if any, of each of the defendants.”
    Our conclusions are, that the convention of the parties could not make these papers a record without the sanction and order of the court; that without such allocatur the course of our practice under the common law and our statutes could not be effected in this manner by private arrangement of litigants between themselves; that on careful examination the papers will be found inconclusive upon the point now urged by the defendants, and inapplicable to the last trial, even if for purposes of argument they are regarded as more than nullities — the paper first named refers to a trial as May 10, 1905; and the other refers to the time when “the first-named case” should be reached, even contemplating a trial which took place before that now under review. And finally, in no one of these instruments are all the actions named together. The only united agreement of the three defendants with the plaintiff was reported orally to the trial judge after the jury had been initially sworn as already narrated, and this made no stipulation whatever for a separate verdict. The entry of the verdict on the trial list and the docket was of no significance, those books not being records of the court.
    May 10, 1909:
    We have then the case of joint tort feasors, and our judgment may be entered as in such cases.
    We do not deem it necessary to file an opinion upon the other reasons for a new trial presented by the defendants.
    Rule discharged.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,500. Defendants appealed.

      Error assigned among others was (1) in entering judgment on the verdict.

      S. L. Shields, with him Samuel M. Clement, Jr., for appellants. —
    The verdict as rendered is insensible in view of the fact that three separate issues were to be tried, and the verdict indicates nothing as to the separate liability of each defendant.

      Henry J. Scott, with him Jemes L. Monihan, for appellee.
   Opinion by

Mr. Justice Mestbezat,

H. Cassale Mosier brought an action of trespass for an assault and battery against Runyon Wolverton to June Term, 1904, of the court of common pleas No. 2 of Philadelphia county. She also brought a similar action against Charles R. Hamilton to June Term, 1904, of the court of common pleas No. 5 of Philadelphia county. Pleas were duly filed and both cases were put at issue on the pleadings in the respective courts. On May 4, 1905, by a writing signed by counsel for the parties it was agreed that the cases should be tried together, when reached, in the court of common pleas No. 2, “the jury by its verdict to find separately with respect to the liability of each of the defendants.”

The plaintiff in the above actions brought another suit in trespass for an assault and battery committed on the same occasion against Florence W. Hamilton to June Term, 1906, in the court of common pleas No. 3 of Philadelphia county which was subsequently put at issue by a proper plea in that court. On June 25, 1907, by a writing signed by counsel for the parties, it was agreed that this case should be tried with the case of Runyon Wolverton when that case was reached in the court of common pleas No. 2, “the jury by its verdict to find separately with respect to the liability, if any, of each of the defendants.” It thus appears by the stipulation of counsel for the parties filed of record that the three cases were to be tried together in the court of common pleas No 2 and that the jury was to render a verdict in each of the three cases, “ finding separately with respect to the liability of each of the defendants.”

The cases were called for trial in common pleas No. 2 on October 21, 1908, but were continued, the court making an order that “the three issues involved in the cases entitled as above” should be tried on November 2, 1908. On the last-named day the cases were again called for trial when ’ the minutes of the court show the following to have occurred: “Counsel for plaintiff and defendants move the court that these three cases be tried together. The Court: Do you agree to that? Mr. Shields:' Yes, sir. Mr. Monihan: Yes sir; we agree.” The trial of the three causes proceeded and resulted in a “verdict for plaintiff for $2,500” without any separate verdict being rendered in the three cases. A motion for a new trial was made by the defendants which was subsequently discharged, and the court directed that judgment be “entered in favor of the plaintiff and against the defendants in the sum of $2,500.” In the case against Charles R. Hamilton the docket entries show, as of November 5, 1908, a “verdict for plaintiff, $2,500;” and subsequently the entry of judgment on the verdict. In the case against Wolverton the docket entries of November 5, 1908 show the following: “for verdict C. P. 2, J. ’04, 2516;” and that judgment was subsequently entered on the verdict. The docket entries in the case against Florence W. Hamilton are the same as those in the Wolverton case.

An appeal has been taken in each case by the defendant. The only assignment that need be considered is the one alleging error in the entry of judgment against the parties. It is clear that the learned trial judge misapprehended the intention of the parties as well as their agreement when he permitted a single verdict “for the plaintiff” in the trial of the three causes, and in not directing the jury to return a separate verdict in each case. The court in receiving the verdict and entering judgment treated the three causes as having been consolidated into one and tried as such, whereas the record discloses that the parties at no time intended that the cases should be consolidated into one cause or tried as one cause. As suggested in the appellee’s brief, “the whole affair (out of which the actions arose) occurred within a short space of time and was one continuous transaction;” but instead of regarding the defendants as joint tort feasors and bringing one action for the assault and battery, the plaintiff elected to separate them and brought three distinct and separate actions against the three defendants. Separate pleas were filed and separate issues framed in the cases, and it was agreed “that these three cases be tried together,” and not as one cause brought by the plaintiff against the three parties as joint tort feasors. The plaintiff gave no indication that he intended that the three cases should be consolidated and that one verdict and one judgment should be entered against the three parties jointly. No such intention appears in any of the proceedings until the court permitted a single verdict and entered a joint judgment thereon. This was not permissible under the pleadings nor by any agreement of the parties disclosed by the record. During the trial of the causes the court recognized that they were separate actions being tried together. On one occasion the judge in making a ruling said: “This testimony is in all three cases, so that an exception here goes to all three.” Again the learned judge said: “We are trying three cases. Every ruling I make applies to the three cases. If it is error as to one it may be corrected as to the other two.”

Notwithstanding the contention of the appellee to the contrary, the records disclose a judgment entered in each case in the sum of $2,500. The record will not support these judgments. The verdict returned by the jury was “for the plaintiff” which entitled the plaintiff to a judgment against each of the defendants in the separate actions. The order, however, made by the learned trial judge directed one judgment on the verdict in favor of the plaintiff and against the defendants jointly. This could not be done on the verdict rendered which required a separate judgment to be entered against the three defendants in the several cases. We concede, as was admitted on the argument, that it was not the intention that a judgment for $2,500 should be entered against each of the defendants. In fact, the statement in the case against Florence W. Hamilton claims only $1,000. Of course there was no authority for the prothonotary entering the judgment, as the docket entries disclose he did, against each of the defendants for $2,500. The order of the court was that a judgment should be entered in favor of the plaintiff against the three defendants jointly for that sum. This was error which requires a reversal of the judgment in the three several causes.

The judgment in each of the cases against Runyon Wolverton, Charles R. Hamilton, and Florence W. Hamilton is reversed, and a venire facias de novo awarded.


author: Mr. Justice Mestrezat,

text:
    Hunt, Appellant, v. Philadelphia & Reading Railway Company
    (No. 1).

      Practice, C. P. — Motion for judgment non obstante veredicto — Duty of court to file opinion — Act of April 22, 1905, P. L. 286.
    1. Where under the Act of April 22, 1905, P. L. 286, the court in banc enters a judgment non obstante veredicto, it is the duty of the court in entering the judgment to point out in an opinion the evidence which sustains it in setting aside the verdict and in holding that the evidence does not sustain the verdict of the jury.

      Negligence — Railroads—Brakeman.
    2. In an action by a brakeman against a railroad company, not his own employer, to recover damages for personal injuries, it appeared that the plaintiff was working on a train belonging to his own company, and operated on its tracks. An engine of the defendant negligently pushed some cars against the train on which the plaintiff was working, and in the collision plaintiff was injured. There was evidence given by trainmen who saw the occurrence that the engine was the property of the defendant company, and that the name of the company was marked upon it. One of the witnesses testified as to the identity of the engineer upon it. Held, that the evidence was sufficient to submit to the jury on the question of identification of the engine and engineer.
    3. In a negligence case against a railroad company it is immaterial that the witnesses do not give the full corporate title of the company when they refer to the company in their testimony. If they give an abbreviated form of the name by which the company is popularly known, that is all that is necessary.
    Argued March 30,1909.
    Appeal, No. 214, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 2,490, for defendant non obstante veredicto in case of Howard A. Hunt v. Philadelphia & Reading Railway Company.
    Before Mitchell, C. J., Fell, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Kinsey, J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict in favor of plaintiff for $8,000. Subsequently on motion the court in banc entered judgment for defendant non obstante veredicto.
    May 10, 1909:

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

      Thomas Learning, with him John R. K. Scott, for appellant.
    —It is undisputed that the negligence of defendant’s engineer produced the collision. This cast upon defendant the burden of rebutting the proof of negligence, or of showing that the engineer was not its servant: Catawissa R. R. Co. v. Armstrong, 49 Pa. 186; Penna. R. R. Co. v. McHugo, 35 Legal Int. 62; Baker v. Railway Co., 149 Fed. Repr. 882.
    There was complete identification of the defendant’s engine and engineer, and ample proof that he was acting within the scope of his employment: Sarver v. Mitchell, 35 Pa. Superior Ct. 69.

      Wm. Clark Mason, with him Gavin W. Hart, for appellee, cited: Lotz v. Hanlon, 217 Pa. 339.
   Opinion by

Mr. Justice Mestrezat,

As suggested by the learned counsel for the appellee, there is but a single question presented for consideration on this appeal and that is whether there was any “evidence that the defendant was in control of the operation of that engine (which caused the accident) or in any way connected with it.” The trial judge held there was sufficient evidence of this fact to go to the jury, saying: “ This case is purely for the exercise of your functions, and it is not necessary for the court to at any length review the facts which as far as they go are uncontradicted.” At the conclusion of the plaintiff’s testimony, the defendant moved the court for a nonsuit on the ground that there was no evidence to warrant the jury in finding that the engine which was alleged to be the cause of the plaintiff’s injuries was in control of the defendant company. The motion was denied, the case was submitted to the jury and a verdict was returned for the plaintiff. Subsequently .on motion of counsel, the court entered a judgment non obstante veredicto in favor of the defendant. In entering this judgment the court filed no opinion and assigned no reasons for its action. In the recent case of Rankin v. Rankin, ante, p. 514, the court of common pleas No. 2 of Philadelphia county sustained exceptions to a master’s report without filing an opinion or assigning reasons therefor. It was held that the trial court had failed to perform its duty, that it should have filed an opinion setting forth its reasons for its action in reversing the master and the case was remanded with directions to the court to file such opinion. In the present case the judgment was entered under the provisions of the Act of April 22, 1905, P. L. 286. This act provides that where binding instructions have been refused, the party presenting the request for such instructions may move the court to have all the evidence taken upon the trial duly certified and filed, and for judgment non obstante veredicto thereon; and that thereupon “ it shall be the duty of the court, if it does not grant a new trial, to so certify the evidence, and to enter such judgment as should have been entered upon that evidence.” Where, therefore, judgment is entered notwithstanding the verdict, it must be “such judgment as should have been entered upon that evidence,” and hence it is the duty of the court in entering the judgment to point out in an opinion the evidence which sustains it in setting aside the verdict and in holding that the evidence does not sustain the verdict of the jury. The judge having ruled on the trial of the cause that the evidence of the plaintiff’s claim was sufficient to submit to the jury, justice to him as well as to'the defeated litigant requires the court in banc when it enters a judgment non obstante veredicto to point out wherein the trial judge was in error in holding that the evidence was sufficient. The act of the court in entering judgment notwithstanding the verdict without assigning its reasons for reversing the trial judge is not judicial but arbitrary, and a violation of the manifest intent of the statute authorizing the judgment. The act of 1905 clearly contemplates that a judgment non obstante veredicto shall be entered upon the evidence submitted to the jury and filed of record, and the court is only warranted in setting aside the verdict for sufficient reasons arising from the evidence. These reasons should necessarily be embraced in an opinion filed at the time the court enters the judgment.

The court below having failed to perform its duty in assigning reasons for its action in entering the judgment notwithstanding the verdict, the case should properly be remanded for that purpose. We would make an order to this effect if it were not for the fact that the judgment entered by the court is clearly erroneous and is wholly unsupported by the evidence which the judge held to be competent and admitted on the trial of the cause. This evidence is brief and in order to prevent further delay in the adjudication of the rights of the parties, we have concluded to pass at once upon the single question raised by the assignment which alleges error by the court “in granting defendant’s motion for judgment non obstante veredicto.”

We are clear that there was sufficient evidence to submit to the jury on the question of the defendant’s control of the operation of the engine which caused the collision resulting in the plaintiff’s injuries. It is conceded that the railroad tracks where the accident happened belonged to the Baltimore & Ohio Railroad'Company. A train of about forty freight cars being hauled by the Baltimore & Ohio Company’s locomotive stopped near Race street on the eastern side of the Schuylkill river in the city of Philadelphia. The train was divided, the locomotive and two cars going forward and the balance of the cars left standing on the track. The plaintiff was the head brakeman of the train and when it was divided, he assisted in shunting one of the two cars attached to the engine into the Race street siding, the two parts of the train being separated by a gap of six or eight car lengths. While he was thus engaged, an engine approached the rear of the cars left standing on the track, pushed them forward until they collided with the car which was being shunted into the Race street switch, causing a collision which resulted in the plaintiff’s injuries. The plaintiff claims that this was an engine of the Philadelphia & Reading Railway Company, the defendant, and was at the time in the control of and was being operated by that company’s servants. We think the testimony produced by the plaintiff and admitted by the court was sufficient to sustain its contention. The conductor in charge of the Baltimore & Ohio train was called as a witness and he testified that he had been working with this company three years and that he was familiar with the engines passing up and down this part of the company’s tracks. He says he saw on those tracks engines marked “Philadelphia & Reading.” “Q. Whose engine was it that was pushing the half of this train? A. The Philadelphia & Reading engine. Q. Did you know the engineer who was running the engine? A. A fellow named Seward. Q. Who did he work for? A. The Philadelphia & Reading. Q. I guess you knew the engine, too, didn’t you? A. Yes, I knew it was a Philadelphia & Reading engine, of course.” The rear brakeman on the Baltimore and Ohio train, manifestly an unwilling witness for the plaintiff, testified that it was his duty to protect the cars left standing on the track. He testifies that the engine which caused the collision came up to the rear of the train to make a coupling, that he signaled the engineer to stop, but he did not heed the signal. In his testimony he refers to the engineer in charge of the engine which made the coupling as “the Reading engineer.”

We think this and the other evidence in the case was sufficient to submit to the jury on the question of the identification of the engine and the engineer. It does not detract from or weaken it that the witnesses in referring to the defendant company did not give its full corporate name. It may be that there are other corporations containing the words “Philadelphia & Reading,” but they do not appear in this case, except in the argument of counsel. It is seldom that a witness in a railroad case or even the court gives the full corporate name of the railroad every time there is occasion to speak of the corporation in the progress of the trial. If a nonsuit is to be granted upon such a technicality, the public should have notice of it, as there is no such precedent to sustain it in the books. Any Philadelphia jury would understand in an action against the defendant company what a witness would mean in the use of the words “Philadelphia & Reading,” “Reading” the “Reading Railroad Company” or the “Reading Railway Company.” While every person in Philadelphia and vicinity knows of the railroad operated by the defendant company yet he may not know whether the word “railroad” or “railway” is used in the corporate name. Very few persons indeed who if they should hear of one injured on the “Reading” would not at once know that he had been injured on the Philadelphia & Reading Railway. In fact, it is common experience that when the employees of a railroad speak of or testify in regard to any of the leading railroads they use a generally recognized abbreviated form for the full corporate name of the road. It is not within reason to believe that the witnesses who testified in this case did not refer to the defendant company in speaking of the engine which caused the plaintiff’s injuries and that the jury did not so understand the witnesses.

If the jury were satisfied from the evidence that the engine responsible for the collision was owned by the defendant company and was being operated by its servants at the time of the accident, they may infer, in the absence of testimony to the contrary, that the engine was on the Baltimore & Ohio Company’s road by consent of that company. It will not be presumed, under the circumstances of this case, that the defendant’s servants in operating the engine on the Baltimore & Ohio tracks were trespassers, but rather that the engine was operated on the tracks in pursuance of a traffic arrangement between the two companies.

It is of course the duty of the plaintiff in this as well as in other cases to sustain his claim by competent evidence. We think he has done so and that if the defendant company desired to relieve itself from responsibility for the accident resulting in the plaintiff’s injuries it should have produced testimony to meet the burden shifted to it by the plaintiff’s evidence.

The judgment of the court below is reversed, and that court is directed to enter'judgment upon the verdict.


author: Per Curiam,

text:
    Hunt, Appellant, v. Philadelphia & Reading Railway Company
    May 20, 1909:
    (No. 2).

      Appeals — Practice—Supreme Court-

    Where the appellate court reverses a judgment non obstante veredicto for defendant, and directs the court below to enter judgment on the verdict, the defendant’s right of appeal in the original suit will run from the date of the judgment directed to be entered in the court below.
   Per Curiam,

In this case there was a verdict for plaintiff, judgment non obstante veredicto for defendant and a reversal by this court and a direction to the court below to enter judgment bn the verdict. The defendant now asks for a modification of our judgment on the theory apparently, that it will lose its right of appeal by lapse of time.

This is a misapprehension. The order of this court is so worded, that instead of entering the necessary judgment ourselves, we direct the court below to enter it, and the defendant’s right of appeal in the original suit will run from the date of that judgment so entered.


text:
    Lewitzky v. Sotoloff, Appellant.

      Tenants in common — Adverse possession — Title—Receipt of profits.

    A claim of exclusive right may be established by proof that one tenant in common has entered upon the whole land and taken possession of and occupied the whole, claiming it as his own and taking the profits exclusively as his own for twenty-one years without acknowledging the claim of his cotenant; but the possession of one tenant in common is prima facie the possession of his cotenant also, and mere proof of the receipt of profits without accounting therefor will not sustain a claim of ouster or adverse possession.
    Submitted March 30, 1909.
    Appeal, No. 38, Jan. T., 1909, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 4,387, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Simon Lewitzky v. Barnet Sotoloff.
    May 10, 1909:
    Before Mitchell, C. J., Fell, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit to recover the purchase price of real estate.
    Rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      J. B. Colahan, Jr., for appellant,
    cited: Rohrbach v. Sanders, 212 Pa. 636; Lae v. Patterson, 1 W. & S. 184; Culler v. Motzer, 13 S. & R. 356; Frederick v. Gray, 10 S. & R. 182.
    No printed brief for appellee.
   Opinion by

Mr. Justice Fell,

This action is on a contract in writing to recover the purchase price of real estate sold by the plaintiff to the defendant. It is averred in the affidavit of defense that the title tendered by the plaintiff was not a marketable title to the whole property, and the following facts are set out as a basis of the averment: By sundry conveyances Chas. D. Freeman acquired title to fourteen-fifteenths of the property in 1880. The title to the remaining one-fifteenth was never acquired by him or by anyone in the chain of the plaintiff’s title, but is outstanding in one Ailes. Freeman entered into possession of the property in 1880 and remained in uninterrupted possession and collected all the rents thereof until his death in 1890. The devisees named in his will were in possession and collected the rents until 1907, when the property was sold under proceedings in partition to the plaintiff. Neither Mr. Freeman nor his devisees nor the plaintiff ever accounted to Ailes for the rents, issues or profits of the property.

The affidavit undoubtedly’would have been good if it had stopped with the statement that the plaintiff did not own all the property he sold and that the title to one-fifteenth thereof was in Ailes. The proof of the averments made as to possession and the receipt of rents without having accounted therefor would not be sufficient to establish the plaintiff’s title as against Ailes. A claim of exclusive right may be established by proof that one tenant in common has entered upon the whole land and taken possession of and occupied the whole, claiming it as his own and taking the profits exclusively as his own for twenty-one years without acknowledging the claim of his cotenant; but the possession of one tenant in common is prima facie the possession of his cotenant also, and mere proof of the receipt of profits without accounting therefor will not sustain a claim of ouster or adverse possession: Susquehanna, etc., R. R. & Coal Co. v. Quick, 61 Pa. 328; Rohrbach v. Sanders, 212 Pa. 636. The admissions in the affidavit of defense were far short of the measure of proof required and were insufficient to establish the plaintiff’s title to one-fifteenth of the property sold.

The judgment is reversed with a procedendo.


text:
    Chapman, Appellant, v. Philadelphia & Reading Terminal Railroad Company.

      Railroads — Widening roadbed — Eminent domain ■— Injunction — Equity.

    Where a landowner files a bill against a railroad company to prevent the company from taking his land for the purpose of widening its roadbed, and it is alleged as a ground for equitable relief that the company had not obtained municipal consent, but it appears that after the filing of the bill, and before the hearing, such consent had been obtained, the bill will be dismissed without any decree being entered fixing the date at which the right of the plaintiff for damages had its inception.
    Argued March 30, 1909.
    Appeal, No. 65, Jan. T., 1909, by plaintiff, from decree of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 3,302, dismissing bill in equity in case of Chapman Decorative Company v. Philadelphia & Reading Terminal Railroad Company.
    Before Mitchell, C. J., Fell, Mestbezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Wiltbank, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      Charles A. Chase, for appellant. —
    The action of the defendant company had the specific legal effect of fastening a servitude upon the appellant’s property, and if this act upon the part of the defendant company is followed up, as alleged in the answer, by an actual taking, the defendant will be guilty of a trespass for which an action of trespass would lie and to restrain the perpetration of which the appellant is entitled to the benefit of an injunction: Bassett v. Penna. R. R. Co., 201 Pa. 226; Mountz v. Phila., etc., R. R. Co., 203 Pa. 128.
    A railroad may not exercise its right of eminent domain until it has acquired the right to build its entire road: Hannum v. Electric Ry. Co., 200 Pa. 44; Penna. R. R. Co, v. St. Ry. Co., 26 Pa. Superior Ct. 159.
    Under any view of this case, the lower court undoubtedly committed error in dismissing the complainant’s bill, as will be seen by an examination of the case of Real Estate Trust Co. v. Hatton, 194 Pa. 449.

      Abraham M. Beitler, with him John G. Lamb and Samuel Dickson, for appellee. —
    The company’s right to build, as it did between 1901 and 1903, is not raised in this case and could not be, for it was set at rest in this court in Twelfth Street Market Co. v. Phila. & Reading Terminal Railroad Co., 142 Pa. 580.
    There can be no doubt of the right to widen: Getz’s Appeal, 10 W. N. C. 453; McAboy’s Appeal, 107 Pa. 548; Volmer’s Appeal, 115 Pa. 166; Marlor v. P., W. & B. R. R. Co., 166 Pa. 524; Price v. Railroad Co., 209 Pa. 81; Lodge v. P., W. & B. R. R. Co., 8 Phila. 345; Sutton v. Penna. R. R. Co., 13 Pa. Dist. Rep. 474.

      May 10, 1909:
    The legal consequences of the location of a railroad are clearly defined by the decisions of this court: Williamsport, etc., R. R. Co. v. Philadelphia & Erie R. R. Co., 141 Pa. 407; Hoffman v. Railroad Co., 157 Pa. 174; Lafferty v. Railroad Co., 124 Pa. 297; Hagner v. Penna. S. V. R. R. Co., 154 Pa. 475.
   Opinion by

Mr. Justice Fell,

The plaintiff was the lessee of a factory building and filed a bill for an injunction to restrain the defendant from appropriating a part of the leased premises for the purpose of widening its roadbed. Of the various grounds of complaint set out in the bill only one was pressed at the argument of the appeal. This is that the defendant had no authority to exercise the right of eminent domain in taking the property in question without having first obtained municipal consent. The ordinance granting permission to the defendant to enlarge the bridge structures over public streets sufficiently to accommodate two additional tracks contained the provision that “ifc should not be of any effect until after the execution of a contract between the city of Philadelphia and the Philadelphia & Reading Railway, providing for the elevation of the tracks of said company.” This contract had not been executed at the time when the bill was filed, but it had been executed before the hearing, and the right was at the time admittedly complete.

The plaintiff has not in any manner been disturbed or interfered with in the possession and enjoyment of its property, and the defendant does not contemplate any entry upon the property without first making or securing compensation. If the plaintiff's contention that the defendant was without authority to exercise the right of eminent domain until municipal consent had been obtained to widen its bridges over city streets be conceded, it still has no standing to obtain an injunction after permission has been granted. The evident pur- ■ pose in insisting on a decree was to establish a date for the • inception of a claim for damages that would permit a recovery for improvements made after the resolution of appropriation had been passed by the defendant’s board of directors. The court was in effect asked to do this by additional request for findings of fact and law, but refused for reasons well stated by the learned judge: “The question of damages is not before this court, and we are not at liberty to indicate at what period of time the right of the plaintiff to damages had its inception, nor whether he has suffered prejudice meanwhile by reason of his improvements and additions to the property. The bill is before us merely on the ground that at this day the defendant should be restrained from proposed action in widening its railway, as described in the pleadings, and as at this day it is conceded by all parties that there is such right, it would seem that nothing further is necessary, the contention of the plaintiff obviously being one advanced in entire good faith, but which has relation merely to the ascertainment of the extent of compensation due him, which is to be determined by another tribunal. For this reason the exceptions on the part of the plaintiff are each and all of them dismissed.”

The decree is affirmed.


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

      Negligence — Railroads—“Stop, look and listen” — Grade crossings— Contributory negligence.

    In an action against a railroad company to recover damages for death of plaintiff's husband while driving a team at a grade crossing, a nonsuit is properly entered where it appears that the deceased who was familiar with the crossing stopped at a point where he could not . see the track on account of standing cars and failed to go forward to a point from which he could have had a clear view of the approaching train.
    Argued April 12, 1909.
    Appeal, No. 302, Jan. T., 1908, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1906, No. 1,027, refusing to take off nonsuit in case of Susan Bistider v. The Lehigh Valley Railroad Company.
    May 10, 1909:
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Ferris, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      M. J. Mulhall, for appellant,
    cited: Beach v. Penna. R. R. Co., 212 Pa. 567; Messinger v. Penna. R. R. Co., 215 Pa. 497; Armstrong v. Traction Co., 216 Pa. 595; Sullivan v. R. R. Co., 175 Pa. 361; Longenecker v. R. R. Co., 105 Pa. 328; Hughes v. Coal Co., 104 Pa. 207; E. B. Clarke Co., Ltd., v. R. R. Co., 27 Pa. Superior Ct. 251; Penna. R. R. Co. v. Ackerman, 74 Pa. 265; Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297; Ellis v. R. R. Co., 138 Pa. 506; Neiman v. Del. & Hudson Canal Co., 149 Pa. 92; Ely v. Ry. Co., 158 Pa. 233; Smith v. R. R. Co., 158 Pa. 82; Link v. R. R. Co., 165 Pa. 75; Roberts v. Del. & Hudson Canal Co., 177 Pa. 183; Gray v. R. R. Co., 172 Pa. 383; Cookson v. Ry. Co., 179 Pa. 184; Newton v. R. R. Co., 18 Pa. Superior Ct. 18; Summers v. R. R. Co., 24 Pa. Superior Ct. 615; Keller v. Ry. Co., 35 Pa. Superior Ct. 488.

      Wheaton, Darling & Woodward, for appellee,
    cited: Mankewicz v. R. R. Co., 214 Pa. 386; Penna. R. R. Co. v. Beale, 73 Pa. 504.
   Opinion by

Mr. Justice Fell,

The plaintiff’s husband was killed at a grade crossing of the defendant’s road with which he was familiar, where there were two main tracks and a siding. A train of some fifty empty coal cars stood on the siding, and the rear end of the train was within fifteen or twenty feet of the crossing. These cars cut off entirely from a driver seated in his wagon a view of the main tracks to the south, the direction from which the train came. When about ten feet from the siding the deceased stopped his horses and stood on the footboard at the front of his wagon and looked south. At this place he could by standing on the footboard see over the top of the last two cars of the standing train, which were, lower than the other coal cars, and thus have a view of the main tracks for a distance of from sixty to eighty-five feet. At a point ten feet nearer the track he could have had a clear view in either direction for more than a mile. His horses were struck by the engine of an express train as they were crossing the nearer main track. A nonsuit was entered on the ground that the deceased stopped where he could not see and failed to go forward to a point from which he could have had a clear view of the approaching train.

The facts proved by the plaintiff left no ground for the application of the rule that, when a traveler has stopped at the usual place for stopping, from which a view of the tracks could be had, it is not for the court to say as a matter of law that there was negligence in not stopping at another and better place. The case presented was that of a driver at a railroad crossing with which he was familiar, who stopped where, because of a temporary obstruction, he could not see and who drove on without having looked from a point where he could have seen. This was not a compliance with the rule which imposed on him the fixed duty to stop, look and listen. Stopping where he could not see was little better than not stopping at all, and it was not an observance of the duty the law imposes: Kintner v. Penna. R. R. Co., 204 Pa. 497; Mankewicz v. Lehigh Valley R. R. Co., 214 Pa. 386.

The judgment is affirmed.


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    Fink, Appellant, v. Wilkes-Barre & Wyoming Valley Traction Company.
    May 10, 1909:

      Negligence — Street railways — Infant—Evidence.
    In an action against a street railway company to recover for the death of a child three years old run down by a street car, a nonsuit is properly entered where it appears that the car stopped within its length after the child had been struck, and before the rear wheels had reached him, and neither of the two witnesses who saw the child immediately before the accident testified to any circumstances from which negligence could be inferred in the operation of the car.
    Argued April 13, 1909.
    Appeal, No. 340, Jan. T., 1908, by plaintiffs, from order of C. P. Luzerne Co., Dec. T., 1906, No. 287, refusing to take off nonsuit in case of Tavia Fink and Rachael Fink, his wife, v. Wilkes-Barre & Wyoming Valley Traction Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of a child. Before Halsey, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      James L. Lenahan, for appellants,
    cited: Woeckner v. Electric Motor Co., 176 Pa. 451; McCullough v. Traction Co., 183 Pa. 241; Distasio v. Traction Co., 35 Pa. Superior Ct. 406; Tatarewicz v. Traction Co., 220 Pa. 560; Conner v. Pittsburg Rys. Co., 216 Pa. 609.

      Frank A. McGuigan, with him Paul Bedford and John T. Lenahan, for appellee,
    cited: Funk v. Traction Co., 175 Pa. 559; Kline v. Traction Co., 181 Pa. 276; Kochesperger v. Transit Co., 217 Pa. 320; Schnur v. Traction Co., 153 Pa. 29; Conner v. Rys. Co., 216 Pa. 609.
   Opinion by

Mr. Justice Fell,

The plaintiffs’ child, three years old, was run over by a car of the defendant company on a business street near the center of the city of Wilkes-Barre. None of their witnesses saw the accident and it was not shown how it happened. The only testimony produced that had any bearing on the circumstances connected with the accident was that of two witnesses. One of these, a woman, was at the time sitting at a second-story window and saw the child on the street, saw the car coming and tried to attract the attention of the motorman and of a woman on the street by calling. It did not appear how near the car was to the child, and there was nothing in her testimony that showed negligence in the management of the car. The other witness was a salesman who was waiting on customers in the second story of a furniture store. He testified that he saw the child between the rails of the west track sixty feet north of the store. At that time no car was in sight, and he could see south, the direction from which the car came, 150 feet. About half a minute later he saw a car on the east track passing the store. There was not the slightest proof of what the child did after the time he was seen on the west track before the car came into sight. The car stopped within its length after the child had been struck and before the rear wheels had reached him.

It was essential to the plaintiffs’ case that there should be affirmative proof of some act of negligence by the motorman. In the absence of all proof upon the subject the presumption that he exercised due care will prevail. There was nothing in the circumstances shown that would warrant an inference of negligence, and a nonsuit was properly entered. In Woeckner v. Erie Electric Motor Co., 176 Pa. 451, relied on by the appellants, the motorman saw the child leave the curb twenty-five feet from the track on an unobstructed street and advance towards his car, and he had full knowledge of the danger in time to guard against it.

The judgment is affirmed.


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    Holt v. Kelley, Appellant. Loraine v. Kelley, Appellant.

      Mines and mining — Coal lease — Minimum rental — Thickness of vein.

    Where a coal lease provides that the lessees shall not be required to pay the minimum rental or mine the coal when the coal in the land is less than two feet six inches in general thickness, the burden is on the lessees in an action against them for the minimum rental to satisfy the jury by the weight of the evidence that the coal was less than two feet six inches in general thickness; and if the evidence as to the thickness is conflicting, and the weight of the evidence tends to show that the lessees had not made proper examinations, explorations, or openings to test the actual thickness of the vein, a verdict and judgment for the lessors will be sustained.
    Argued April 21,1909.
    Appeals, Nos. 298 and 299, Jan. T., 1908, by defendants, from judgment of C. P. Clearfield Co., Sept. T., 1907, Nos. 244 and 245, on verdict for plaintiffs in cases of Mary Holt et al. v. M. D. Kelley et al. and Fannie Loraine et al. v. M. D. Kelley et al.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit to recover rentals alleged to be due under a coa 1 lease.
    Reed, P. J., specially presiding, charged as follows:
    By consent of the parties you have been sworn in these two cases which are being tried together before you, but you will bear in mind that you are required to render separate verdicts, that is, a verdict in each case in accordance with the law and the evidence applicable to that case.
    The plaintiffs in these cases leased their respective lands to the defendants, to operate and remove therefrom the merchantable and workable coal. The leases are substantially identical in their language and covenants, with this exception.
    In the Holt lease the royalty is fixed at seven cents per ton of 2,240 pounds and 15,000 tons of coal as the minimum quantity of coal to be mined each year. In the Loraine lease the royalty is fixed at seven and one-half cents per ton of 2,240 pounds and 10,000 tons of coal as the minimum quantity of coal to be mined each year. The plaintiffs have brought these actions on their respective leases to recover the minimum royalty to which they are respectively entitled thereunder. The leases are dated October 15, 1903, and the covenant in each lease is that the minimum royalty for which payment is to be made shall begin three months thereafter, or on January 15, 1904. It is also provided that this minimum royalty shall be paid for on or before December 31, each year. The actions on these leases were begun July 6,1907, and therefore the claim in each case is for the minimum royalty accruing during the years 1904, 1905 and 1906, with interest. It is not contended or alleged by the defendants, that they have paid any royalty under the Holt lease, and therefore the plaintiffs in that case claim to recover the full amount of the minimum royalty for the three years mentioned, with interest, namely, $1,006.25 royalty on coal which should have been mined in the year 1904, with interest thereon from December 31, 1904, and $1,050 royalty on coal which should have been mined in the year 1905, with interest thereon from December 31, 1905, and $1,050 royalty on coal which should have been mined in the year 1906, with interest thereon from December 31, 1906. In the Loraine lease, with the exception of $88.16, no royalty has been paid on coal mined under that lease, and therefore the plaintiffs in that case claim to recover the full amount of the minimum royalty for the three years mentioned, with interest, namely, $718.75 for royalty on coal which should have been mined in the year 1904, less $88.16 paid on account thereof, leaving $630.59 due for that year, with interest thereon from December 31, 1904, and $750 royalty on coal which should have been mined in the year 1905, with interest thereon from December 31, 1905, and $750 royalty on coal which should have been mined in the year 1906, with interest thereon from December 31, 1906. You will recall -that in the Holt lease it is provided that the minimum tonnage to be mined each year is 15,000 tons at seven cents per ton, and in the Loraine lease the minimum number of tons to be mined each year is 10,000 tons and the royalty is seven and one-half cents per ton.

      The defense to these actions is identically the same in each case and is based on the following provision, contained in each lease, namely: “It is further agreed that the coal to be mined under the provisions of this agreement shall be merchantable and workable coal and it shall be optional with the said lessees, that is the defendants, whether to work and mine any coal the vein of which is less than two feet six inches in general thickness, except in cases of local faults or where rolls occur so as to reduce the size of the vein below the general thickness, and in that event the coal in such fault or roll, when it is merchantable coal, shall be mined across and through such fault or rolls.” It is further provided that in such event, that is, the thinning of the coal, the lessees expressly agree to drive sufficient rooms and headings through such rolls, fault or thin places so as to determine whether or not such thinning of the coal or fault is continuous and to develop, if possible, the coal beyond. There is also a provision in these leases, that the defendants are to mine and carry away all the coal in the leased lands that is merchantable and practically minable. Also that they are to proceed at once to open and develop the coal in said lands where not already opened and to continue their mining operations thereon until the termination of the leases, which were to continue for a period of fifteen years or until the merchantable coal in said lands was exhausted. Also, that they would work the mines in a careful and judicious manner and after the methods of mining in general use, so as to prevent unnecessary waste of coal and so as to produce from the seams or veins all the coal that could be produced with safety. They were to commence operations or the work of developing the lands within thirty days after the execution of the leases and to pursue the work industriously, diligently and continuously after that date, and to produce coal as rapidly as the conditions would permit. As already indicated, unless the merchantable and workable coal in the lands became exhausted or the coal became less than two feet six inches in general thickness, they were to mine on the Holt lease not less than 15,000 tons of coal annually or pay for that quantity at the rate of seven cents per ton whether mined or not, and on the Loraine lease they were to mine not less than 10,000 tons of coal annually or pay for that quantity at the rate of seven and one-half cents per ton whether mined or not.
    Now, gentlemen, you will observe the plaintiffs’ right to recover in these actions depends on two things. First, that the lands covered by their respective leases contain a sufficient quantity of merchantable and workable coal to produce in each of the years claimed for not less than 15,000 and 10,000 tons, respectively; and, second, that the coal was in general over two feet six inches in thickness. ... [If there was coal in the lands covered by these respective leases of the general thickness of two feet six inches, but not in sufficient quantities to produce minimum tonnage to be mined each year of the three years named, then the plaintiffs would be entitled to recover, respectively, proportionately, such sums as the quantity of coal that could have been mined would bear to the minimum quantity required to be mined under the leases. By this I mean, that if the evidence warranted a finding that there was sufficient merchantable and workable coal in the lands, which was of a general thickness of two feet six inches, to produce at least a portion of the minimum quantity which the defendants were required to mine each year, the plaintiffs would be entitled to a verdict for the royalty on whatever quantity could have been mined during the years 1904,' 1905 and 1906, at the rates fixed in their respective leases.] [1]
    The defendants’ contention is, that the coal in these lands was less than two feet six inches in general thickness and therefore that they were relieved from mining the same under the express stipulation of the leases, to which I have called your attention, and consequently are not required to pay the minimum royalty provided for in said leases. The plaintiffs deny this, and also allege that the defendants have not made any adequate effort to determine the quantity of merchantable and workable coal of at least two feet six inches of general thickness contained in said lands, and thus is presented the issue or important questions which you are to determine.
    The burden is on the defendants to satisfy you by the weight of the evidence that the minimum quantity of coal, of the quality and kind provided for in the leases, could not be found and did not exist in the lands. The defendants admit that they did not do any mining under the Loraine lease, except that in operating an adjoining tract they got over the line and took out all the coal in the top or “D” vein on the McClellan tract, which is the tract covered by the Loraine lease. They made no other openings or explorations under this lease, except to measure the thickness of the coal in the lower vein at the face of the headings and perhaps at other places of an old development or working of the coal thereunder before the execution of the lease in question, and also the putting down of a bore hole some distance ahead of the face of the old development. They called witnesses to show that the old development or mining on this tract indicated a thinning of the coal as the development advanced and that the bore hole put down by them tended to conclusively establish this fact; also that the coal had so thinned down in the operation that had been carried on before they leased the land that it was less than two feet six inches in thickness at all places reached by the old development; that this thinning of the coal was not due to any fault, roll or other trouble in the mine, but was a gradual thinning as the development advanced in the hill and the thickness of the cover over the coal increased, and their contention is that the testimony offered by them establishes the fact that the coal remaining in the land and covered by this lease is less than two feet six inches in general thickness. If you are satisfied of this fact, by the weight of the testimony in the case, then the plaintiffs cannot recover and your verdict will be in favor of the defendants.
    The plaintiffs, however, contend that the defendants have not made any adequate or sufficient explorations of the lands covered by the Loraine lease to determine what the thickness of the coal underlying the same is; also that they have not complied with the terms of the leases in exploring the same, which requires that they shall proceed to open and develop the coal on said premises where not already opened, which they have neglected to do; also, that only a very small part of the tract had been operated before the same was leased to the defendants, and that the measuring of the coal exposed in the old openings or operations and the putting down of one bore hole would not be a fair test of the thickness of the coal in that very large part of the tract which remained untouched and undeveloped, and they have offered testimony tending to prove that the coal vein in this land was roily and that there were dips and clay veins in it, and that the coal thinned and thickened by reason of these clay veins and dips; and also tending to prove there was coal exceeding two feet six inches in thickness underlying said land and which the defendants were required to mine under their lease of the same.
    It is not necessary that I should recite the testimony offered on either the part of the defendants or plaintiffs bearing on this question. You will recall yourselves and from it determine whether or not the defendants have made such developments or explorations and investigations under the Loraine lease as warranted the conclusion that the coal’ underlying the premises therein described is less than two feet six inches in general thickness. If you are satisfied that they have and that the coal remaining in the land is less than two feet six inches in general thickness, then you will return a verdict in their favor in that case. Otherwise, you will return a verdict for the plaintiffs in such sum as you may find that they are entitled to under the terms of the lease.
    In the Holt case the defendants also explored the old workings. The lease in that case covers about 132 acres of land and my recollection is that some witness testified that about 100 acres of it had been mined out at the date of the execution of the lease to the defendants. The defendants did not make any new openings on this tract, nor did they drive in the main headings of the old, except as hereinafter explained. They drained the old mines and did some mining in driving a cross heading or entrance for a distance of about sixty yards and they took out 1,152 tons of coal. They also put down three bore holes several hundred feet in advance of the. face of the workings. They contend and have offered testimony to show, that in the old workings there was a gradual thinning of the coal as the work advanced and that the bore holes put down by them establishes a continuation of the thinning of the coal; that it was less than two feet six inches in thickness at the face of all the old workings and that the bore holes show that it was still less 500 or 600 feet in advance of the old workings than it was at the face of the same, and they therefore ask you to find as a fact that the coal remaining in the land covered by the Holt lease is less than two feet six inches in general thickness, and if you so find your verdict will be in their favor. The plaintiffs, however, have offered testimony to show that the defendants have not complied with the terms of their lease in this case; that they have not put in any new openings nor have they driven in the headings of the old openings to determine whether or not the thinning of the coal is due to some fault or roll in the coal or whether it is the general condition of the same, and generally that they have not made such investigations and explorations as to justify the conclusion that the coal remaining in these premises is less than two feet six inches in general thickness. They have also offered testimony to show that the coal remaining in the land is of greater thickness than two feet six inches and that the thickness is also affected by clay veins and dips, and that defendants have not made good their contention that it is in general of a thickness less than two feet six inches. I may repeat what I said about the Loraine lease, that it is not necessary for me to recite the testimony offered by the defendants and plaintiffs bearing on the thickness of the coal. If the defendants have satisfied you by the weight of the testimony that they have made such investigations and explorations of the premises as to warrant the conclusion that the coal remaining therein is less than two feet six inches in general thickness, and you find this to be a fact, then you will return a verdict in their favor. Otherwise, you will find for the plaintiffs in the case such sum as they are entitled to under the terms of this lease.
    [It appears from the undisputed testimony that both the Holt and Loraine tracts contain at least one vein of merchantable and workable coal, the dispute being as to the general thickness of the coal in the vein. The plaintiffs, however, offered some testimony to show the probable existence of another vein of merchantable and workable coal of greater thickness than two feet six inches, below the admitted vein which has been opened and operated on these lands.] [2] The leases to the defendants cover all veins or seams of coal in the leased premises, but before the defendants could be required to expend money in exploring the property for this lower vein, or before you can consider that vein in fixing them with the minimum royalty provided under said leases, you must not only be satisfied for its existence in these lands, but also that it is reasonable and practicable to work the same. That by the exercise of ordinary care and diligence in the exploration and development of the lands for coal such veins would have been discovered by the defendants, and that an ordinarily careful and prudent operator would have worked the same and taken the coal therefrom.
    May 10, 1909:
    Verdict and judgment for plaintiffs. Defendants appealed.

      Errors assigned among others were (1, 2) above instructions, quoting them.

      John G. Love, with him James A. B. Miller, Singleton Bell and Howard B. Hartswiclc, for appellants.

      Thomas H. Murray, James P. O’Laughlin and Hazard Alex. Murray, for appellees.
   Per Curiam,

These appeals involve the same questions and were argued together. The facts that gave rise to them, the contentions of the parties, and the grounds on which they were submitted to the jury are clearly set out in the charge of Judge Reed, specially presiding. We find no error of which the appellants can justly complain, and the judgments are affirmed.


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    Heiges, Appellant, v. Pifer.

      Husband and wife — Wife’s property — Proof of title — Evidence.
    1. A wife claiming property acquired during coverture against her husband’s creditors is required to substantiate her claim by proof sufficient to repel all adverse presumption. But the law does not require proof of such a character as to relieve from every doubt, but only proof that is clear and satisfactory. A mere doubt will not operate to defeat the wife's claim. She must, however, show that the property itself is her separate property by gift, descent or otherwise, or that the money which she put into the property was her own money, or obtained upon her own credit, and that it was not the property or money, or credit of her husband. This she must show by proof that is clear, full and satisfactory.
    2. In a contest between a wife claiming property as her own, which had been sold as her husband’s, the wife produced testimony of which there was no direct contradiction that she had written to her brother-in-law requesting a loan of money with which to buy the land; that in reply he had written to her inclosing his check to her order for the amount of purchase money required; that she had indorsed this check and delivered it to her vendor in payment at the time of the execution of the deed. Her letter of request, the reply thereto, and the check were produced, and it was shown beyond doubt that the check was used in payment. Held, that the testimony made out a case for the wife which was essentially for the jury.
    Argued April 21, 1909.
    Appeal, No. 49, Jan. T., 1909, by plaintiffs, from judgment of C. P. Clearfield Co., Sept. T., 1907, No. 86, on verdict for defendants in case of Daniel Heiges et al. v. Agnes J. Pifer et al.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Ejectment for land in Dubois borough. Before A. O. Smith, P. J.
    The opinion of the Supreme Court states the case. •
    Verdict and judgment for defendant. Plaintiffs appealed.

      Error assigned was in submitting the case to the jury.

      Thomas H. Murray, of Murray & O’Laughlin, with him Pentz & Calkin, for' appellants.

      May 10, 1909:

      A. L. Cole, for appellees.
   Per Curiam,

This was an action of ejectment brought by the heirs of a purchaser at a sheriff’s sale. The title to the land was in a married woman and the sale was under an execution on a judgment against her husband. The only question presented by the appeal is whether the court erred in not directing a verdict for the plaintiff because of the insufficiency of the testimony produced by the defendant to sustain her title. She was incompetent as a witness because of the death of parties in interest. In support of her title it was shown by testimony of which there was no direct contradiction that she had written to her brother-in-law requesting a loan of money with which to buy the land; that in reply he had written to her inclosing his check to her order for the amount of purchase money required; that she had indorsed this check and delivered it to her vendor in payment at the time of the execution of the deed. Her letter of request, the reply thereto, and the check were produced and it was shown beyond doubt that the check was used in payment. This testimony made out a defense that was essentially for the jury.

It is an established rule of evidence that a wife claiming property acquired during coverture against her husband’s creditors is required to substantiate her claim by proof sufficient to repel all adverse presumptions. But the law does not require proof of such a character as to relieve from every doubt but only proof that is clear and satisfactory. A mere doubt will not operate to defeat the wife’s claim: Tripner v. Abrahams, 47 Pa. 220; Flick v. Devries, 50 Pa. 266; Earl v. Champion, 65 Pa. 191. In submitting the case it was said by the learned judge: “Now, the law applicable to this case, as we understand it, is that in all such contests, where the creditors of the husband are claiming property against the wife, the burden is on her to show that the property itself was her separate property, by gift, descent or otherwise, or that the money which she put into the property was her own money or obtained upon her own credit, and that it was not the property or money or credit of her husband. This she must show by proof that is clear, full and satisfactory.” This instruction stated the rule clearly and it was all the plaintiff was entitled to.

The judgment is affirmed.