author: Mr. Justice Elkin,

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

      Master and servant — Definitions—When the relation exists.

    A master is one who stands to another in such a relation that he not only controls the results of the work of that other but also may direct the manner in which such work shall be done.
    A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter.
    The relation of master and servant exists where the employer has the right to select the employee, the power to remove and discharge him, and the right to direct both what work shall be done, and the way and manner in which it shall be done.

      Bailment — Master and servant — Railroad cab service.

    A railroad company owning cabs, by an agreement in writing, let them out to drivers in consideration of the payment of a fixed sum per day. The agreement provided that the driver was to assume all liability for damages to any person or property, that he should not use a horse longer than six and one-half hours without returning to the stable for exchange, that he should wear a uniform, abstain from the use of intoxicating liquors, present a neat and clean appearance, and conform to the prescribed rates and regulations. Upon failure to observe these conditions the company reserved the right to cancel the unexpired' term of the lease. The regulations provided in detail the rates to be charged for various distances, limited the area beyond which the driver could not go without permission, and restricted the driver from performing other kinds'of work. It also appeared that the company employed a cab agent to supervise the service, to secure men for the work, make contracts with the drivers, and enforce the terms and conditions of the lease. Held, (1) that the contract between the railroad company and the driver was one of bailment, and not one creating the relation of master and servant; (2) that the railroad company was not liable for injuries sustained through the negligence of the driver.
    Argued Jan. 9, 1906.
    Appeal, No. 167, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1903, No. 4,162, on verdict for defendant in Case of Dominick McColligan v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before SULZBEEGEE, J.
    The opinion of the Supreme Court states the case.
    Defendant presented the following points :
    1. That as the evidence fails to establish the relation of master and servant between the driver of the hansom and the defendant, the latter cannot be held responsible for the former’s negligence and, consequently, the verdict should be for defendant.
    2. That upon all the evidence the verdict should be for the defendant. Answer: I affirm both points.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 2) answers to points, quoting them.

      Thomas James Meagher, for appellant.
    Where there is a question as to the existence or nonexistence of the relation of master and servant in a negligence case, the chief and ultimate test is the test of control. If the person sought to be charged as master had the power of control over the person alleged to be the servant, liability arises: Yewens v. Noakes, L. R. 6 Q. B. Div. 530; Singer Mfg. Co. v. Rahn, 132 U. S. 518 (10 Sup. Ct. Repr. 175); Bailey v. Troy, etc., R. R. Co., 57 Vt. 252; Thomas v. Altoona, etc., Electric Ry. Co., 191 Pa. 361; Stork v. Philadelphia, 199 Pa. 462.
    The master can compensate his servant in any way that he sees fit. He can give to him either a stipulated salary, a part of the profits or the whole profits on a specified sum being paid to him: Atlantic Transport Co. v. Coneys, 82 Fed. Repr. 177.

      Edwin J. Sellers, of Sellers & Rhoads, for appellee,
    cited: Hershinger v. Penna. R. R. Co., 25 Pa. Superior Ct. 147; Connor v. Penna. R. R. Co., 24 Pa. Superior Ct. 241.
    March 5, 1906:
   Opinion by

Mr. Justice Elkin,

The decisive question raised by this appeal is whether as between the defendant and the driver of the hansom the relation was one of master and servant or of bailor and bailee. If the former, the master is liable for the negligence of the servant; if the,latter, the negligence of the bailee cannot be imputed to the bailor. The contract of letting is in writing, the printed rates and regulations are made part thereof, so that the determination of the relation is a question of law for the court and not of fact for the jury.

The lease under which defendant let the hansom to the driver provides that “ for and in consideration of the sum of $4.50, and on the conditions stated below, hires to II. Priest, driver, hansom No. 65 with two horses, for thirteen hours from 9:30 A. m. of the date stamped on the back of this certificate.” The conditions stated therein are in substance that the driver shall assume all liability for damages to any person or property, and that he agrees not to use a horse longer than six and one-half hours without returning to the stable for exchange, to wear a uniform, to abstain from the use of intoxicating liquors and to present a neat and clean appearance, to conform to the prescribed rates and regulations, and upon failure to observe these conditions the company reserves the right to cancel the unexpired term of the lease.

There can be no doubt that upon its face this contract of letting establishes the relation of bailor and bailee. The learned counsel for appellant, who has ably and exhaustively presented the question, concedes that if the case rested upon the contract alone, a bailment would result within the meaning of the law. It, however, is earnestly contended that this prima facie relation is changed by reason of the conditions, rules and regulations, made part of the contract, to which the driver was subjected. These .regulations provide in considerable detail the rates to be charged for various distances, different kinds of vehicles, and length of time used. Certain boundaries are prescribed beyond which the driver cannot go without permission, and he is not permitted to perform other kinds of work such as carrying baggage and doing errands, during the term of the lease. It is also argued that because defendant company employs a cab agent to supervise this service, to secure men for the work, make contracts with the drivers, and enforce the terms and conditions of the lease, such control is thereby exercised, as to make the company liable as master.

We must first consider what is necessary to establish the relation of master and servant. This question has been considered by a large number of text-writers and frequently passed upon by the courts. All authorities agree upon the following definitions of master, servant and the relation existing between them:

“ A master is one who stands to another in such a relation that he not only controls the results of the work of that other, but also may direct the manner in which such work shall be done.” “ A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter.” “ The relation of master and servant exists where the employer has the right to select the employee, the power to remove and discharge him, and tlie right to direct both what work shall be done, and the way and manner in which it shall be done: ” 20 Am. & Eng. Ency. of Law (2d ed.), p. 11, 12. In more concise form these definitions mean that the master directs the manner in which the work shall be done and controls the results of the work. The servant is under the entire control and always subject to the direction of the master. The relation exists- when the master not only has the right to select his servant, but has the power to remove and discharge him, with or without, cause, and to direct what shall he done and the manner of doing it/

In the case at bar the defendant company does not control the results of the work, has no right to the proceeds arising from the fares paid drivers by passengers, and hence the fundamental and essential principle necessary to create the relation of master is lacking. The driver did not remain under the absolute direction and control of the company, and thereby cannot be said to be a servant within the meaning of the definition. The right of the master to discharge and remove the servant is incident to the relation, but in this case the abstract right did not exist. It is true the lease could be c'anceled for the unexpired term, but only when the conditions thereof, or some of them, had been violated. The cancellation of the lease was a contractual right and did not arise because of the employment relations of the parties. The driver under the contract had legal rights enforceable against the company and only limited by the conditions therein contained. If the company undertook to cancel the lease, or remove the driver, for a reason not set out in the conditions of letting, it would be liable in damages for breach of the contract. Then, again, as has been stated, the driver is entitled to all the proceeds derived from fares received from passengers who hire the cab. The aggregate of these fares may be $5.00 or $25.00 a day, but the company has has no control over, or interest in, the results of the work in this most important respect. All of these things are inconsistent with the relation of master and servant and indicate that of bailor and bailee.

We have then under the express terms of the contract a bailment, and this relation is supported by the inferences and results just stated. As against this admittedly, prima facie relation of bailor and bailee we are asked to say that by reason of the conditions limiting the rates, fixing boundaries, prescribing kinds of uniforms, requiring cleanly and sober habits and other incidental matters, the relation is not what it appears to be on its face, but is something different. The contention is not sound. The conditions and regulations, incidents of the contract of letting, in some instances- it is true are consistent with the relation of master and servant, but not inconsistent with that of bailor and bailee. If the company in order to protect its property and -give the traveling public modern conveniences and suitable accommodations, has deemed it advisable to embody in the contract of letting certain reasonable regulations, no legal or business reason can be properly assigned why the real relation of the parties should be changed thereby. The contract itself is one of bailment. The conditions are not necessarily inconsistent with this relation, and no sufficient reason is suggested why a different construction should be adopted.

It is true the contention of appellant is sustained by the rule of the English cases under the metropolitan hackney carriage act: Powles v. Hider, 6 E. & B. 207; Fowler v. Lock, L. R. 7 Common Pleas, 272; Venables v. Smith, L. R. 2 Q. B. Div. 279; King v. London Improved Cab Co., L. R. 23 Q. B. Div. 281; Gates v. Bill, L. R. 2 K. B. (1902) 38. It is not difficult to distinguish the present case from the English cases either in principle or fact. The cab system of the city of London is regulated by act of parliament. The entire system is a public service function. It is extensive in its operation and covers a wide area within the corporate limits of the city. It is operated by a limited number of companies enjoying valuable and almost exclusive privileges. Even under these circumstances, when the question was first before the English courts in 1856, it was doubted whether the common-law relation of bailor and bailee should be changed to that of master and servant, even when indicated by act of parliament, and the decision was largely based on the ground that the companies owning the cabs enjoyed valuable privileges, held themselves out to the public as the owners and ought not to be permitted to deny their liability as masters on this account. That the English courts did not consider the decision as resting on a firm foundation is shown by the fact that when in 1902 the question was again before the courts for consideration in the case of Gates v. Bill, L. R. 2 K. B. (1902) 38, Lords Williams and Romer, delivering the opinion of the court said, in substance, that at common law there could be no doubt that the relation was that of bailor and bailee, and that if the question were a new one they would hesitate to draw from the provisions of the statute the inference that parliament meant to assume the existence of the relation of master and servant so as to charge the owner with liability. In the opinion of the court there was nothing in the act which established the relation of master and servant, but the decisions on the question having firmly established the principle they felt themselves bound to accept the rule as the settled law of the realm.

If the English courts doubt the soundness of the rule after almost half a century has passed since its aimouncement it cannot be argued with much confidence that our courts should adopt it in the first instance under conditions entirely dissimilar. We have no act of assembly regulating this matter and hence following the reasoning of the English courts, independent of the act of parliament, the common-law relation of bailor and bailee exists. The cab service of the defendant company does not enjoy exclusive and special privileges. It is limited in extent. It does not perform public service functions generally, and has no rights and privileges conferred by legislative enactment. It does not belong to the class of companies organized under the hackney carriage acts of parliament. The rule of those cases is not applicable to the facts of the present case.

We are of opinion, therefore, that a proper construction of the written contract, including the conditions and regulations, under which the driver took the custody of and operated the hansom, shows that the relation established was that of bailor and bailee, and there can be no recovery in this case.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Kenworthy, Appellant, v. Levi.

      Trusts and trustees — Power to sell — Power to mortgage — Provision against encumbering the estate.

    Where a deed of trust gives to the trustee the power to “sell and convey in fee simple the whole or any part of the trust estate . . . provided, however, that the principal of the estate shall not become impaired or encumbered,” the trustee has no power to pledge a mortgage belonging to the estate as security for a loan; and if he does so and embezzles the proceeds, the pledgee of the mortgage will be compelled to reassign it to the trust estate. Lancaster v. Dolan, 1 Rawle, 231, distinguished.
    Argued Jan. 9, 1906.
    Appeal, No. 254, Jan. T., 1905, by plaintiff, from decree of C. P. No. 5, Phila. Co., June T., 1903, No. 1,408, dismissing bill in equity in case of Joseph W. Ken-worthy, Substituted Trustee, under Deeds of Trust bearing date July 9, 1889, and August 6, 1889, created by James P. and Mary Bell Henry v. Julius C. Levi, Trustee for Fannie Levi, The Equitable Trust Company, Administrator for the Estate of Moses T. Johnson, deceased, and Samuel C. Adams.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity to compel the reassignment of a mortgage. Before Davis, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Jacob Singer, with him Emanuel Furth, for appellant.
    A power to sell realty with a restriction on encumbrances does not imply a power to pledge a mortgage: Maurer’s App., 86 Pa. 380.
    It is well settled that a party taking stock on sale or pledge from a trustee deals with it at his peril: Clemens v. Heckscher, 185 Pa. 476; Wood’s App., 92 Pa. 379; Fesmire v. Shannon, 143 Pa. 201; Schell v. Deperven, 198 Pa. 591.

      M. Hampton Todd, for appellee.
    A power of sale annexed to a trust created by a deed or will includes a power to mortgage or pledge the assets of the trust estate: Zane v. Kennedy, 73 Pa. 182; Maurer’s App., 86 Pa. 380; Fidelity Ins., etc., Co. v. Wurfflein, 15 W. N. C. 28; McCreary v. Bomberger, 151 Pa. 323; Lancaster v. Dolan, 1 Rawle, 231; Gordon v. Preston, 1 Watts, 385; Duval’s App., 38 Pa. 112; Pennsylvania Co., etc., v. Austin, 42 Pa. 257.
    March 5, 1906:
   Opinion by

Mr. Justice Brown,

On July 9, 1889, Mary Bell Henry and James P. Henry, her husband, conveyed to Moses T. Johnson, in trust, her interest in certain real estate situated in Indiana and the city of Philadelphia. The uses and purposes for which the trustee was to hold ‘the property are fully set forth in the deed conveying it to him, but they need not be recited, as they are not material in determining the question raised on this appeal, which is as to his power to borrow money as trustee and to pledge as security for its repayment a mortgage given to him as trustee. The words of the deed defining his power over the corpus of the estate are that he may “sell and convey in fee simple the whole or any part of the trust estate to any person, persons or corporations, and re-invest the proceeds of the same or of the sale of any investment made therewith in real estate, ground rents or first mortgages, as he may deem best; provided, however, that the principal of the estate shall not become impaired or encumbered.” On August 6, 1889, a second deed was executed by the same grantors to the same grantee, in trust, conveying to him the interest of Mrs. Henry in certain real estate situated in the city of Philadelphia. This conveyance was “ under the same trusts and for the same uses and purposes and with the same powers as are given to the said Moses T. Johnson ” by the deed of July 9, 1889, with the additional power of authorizing him to settle and adjust all claims for money advanced by George W. Purnell to either of the grantors.

On December 17, 1900, Moses T. Johnson, who had sold some of the real estate under the power conferred upon him, invested $5,250 of the trust funds in his hands in a first mortgage on property situated in the city of Philadelphia and owned by Harry S. Garrow, the mortgagor. On June 17,1901, Johnson, as trustee, borrowed #3,000 from Julius C. Levi, trustee, tbe present appellee, and as collateral security for the repayment of the loan assigned to Levi the Garrow bond and mortgage for #5,250. Johnson borrowed the money for four years and six months, agreeing to pay Levi interest for the same at the rate of five per cent, per annum. After the expiration of that period the mortgage was to be reassigned to Johnson as trustee, upon the repayment, with interest, of the sum borrowed.

Johnson embezzled and appropriated to his own use the sum borrowed from Levi, and after his death, in January, 1902, the appellant was appointed trustee in his place. He filed this bill, praying that the assignment of the mortgage to Levi be declared illegal, null, void and of no effect; that Levi be enjoined and restrained from assigning and transferring it to anyone, and, after hearing, be directed to retransfer it to the plaintiff as an asset of the trust estate, which the former trustee had no power to transfer to him. The bill was dismissed by the court below on the authority of Lancaster v. Dolan, 1 Rawle, 231.

If the deeds in trust contained nothing more than an absolute and unrestricted power in the trustee to sell the real estate of the grantors, and the pledging of the mortgage to Levi as collateral security for a loan made to Johnson as trustee is to be regarded as a mortgage by him, Lancaster v. Dolan would sustain the action of the court. But that case and the many following it as authority confine the rule of a power to mortgage under a power to sell- strictly to deeds and wills in which there is an absolute and unrestricted power to sell, unaccompanied by an express restriction upon the power to encumber or mortgage. In Lancaster v. Dolan, and every case that follows it in which the power to mortgage has been sustained, no restriction on that power appears, and the limit to which the cases have gone is, that under a general and absolute power to sell there is implied authority to make a conditional sale through a mortgage.'

The powers of a trustee are such only as the settlor or testator confers in his deed or will, and if he provides that the trustee may sell, but shall not encumber or mortgage, that direction is the supreme rule by which the trustee is bound; and whatever the trustee does in disregard of this direction cannot bind the estate committed to him. What reason the settlor of a trust may have in empowering the trustee to sell, and at the same time expressly withholding the power to encumber or mortgage, is not involved in determining what powers the trustee possesses. He possesses such as are expressly or impliedly conferred, but none that are expressly withheld. Here the words limiting the power of the trustee are, “ the principal of the estate shall not become impaired or encumbered.” What Johnson did as trustee was to encumber the principal of the estate in his hands by borrowing on the faith of it $3,000 from the appellee, and pledging as security for the repayment of the loan a part of the estate committed to him. It is true there was power to sell the properties for the purposes of the trust, but there was an express prohibition against borrowing on them, for he could borrow on them only by encumbering them. As this is what he did, in the face of an express direction that he should not do it, the rule announced in Lancaster v. Dolan had no bearing upon the question before the court below.

The learned judge very properly said that Levi was “ put upon inquiry to ascertain the authority of the trustee.” In support of this, authorities need not be multiplied. It is well settled that a party taking stock on sale or pledge from a trustee deals with it at his peril, for there is no presumption of a right to sell it as there is in the case of an executor: Wood’s Appeal, 92 Pa. 379. “ A trustee stands upon a different footing from an executor or administrator, in regard to the transfer of stock. Administration is no part of his duties. His office is to hold and safely keep the trust funds, in accordance with the terms of the will or other instrument creating the trust. Sometimes it is to pay income to the parties entitled thereto, or to accumulate the same during a stated period. If he transfers securities, it must be in pursuance of an express authority contained in the trust itself, or by virtue of an authority implied from the nature of said trust, or the character of the securities in his hands: ” Fesmire v. Shannon, 143 Pa. 201. In Schell v. Deperven, 198 Pa. 591, the trustee, eight years after the death of the testator and two years after the orphans’ court had awarded certain stock to him, pledged the same as security for a loan alleged to be for the benefit of the estate. He embezzled the proceeds of the loan, and we said, through our Brother Mestkezat : “ While, as the court below finds, Deperven may have received the notes and the shares of stock held by him bona fide, yet that will not avail him in this con- ’ test in face of the fact that, if he had exercised due care and proper diligence, he would have ascertained the true condition of affairs, and that, as trustee, Sibbs had no right to pledge him the stock for the $1,400 loan. The failure to perform a duty, obligatory upon Deperven, and which would have protected him as well as the cestui que trust, deprives him of any right or claim to this stock, so far as it is held as security for the $1,400 note, and requires him to deliver it to the plaintiff.”

The relief asked for in the bill should have been granted, for Johnson, as trustee, had no power to transfer the mortgage as security for a loan made to him, and Levi could have so ascertained upon an examination of the source of the trustee’s power. Under the stipulation filed by the plaintiff the defendant is entitled to be credited with the dividends received, or to be received, from the estate of Johnson, amounting to $1,527.56. The decree below is reversed, and it is now ordered, adjudged and decreed that Julius C. Levi, trustee for Fannie Levi, assign to Joseph W. Kenworthy, substituted trustee, the mortgage transferred to him by Moses T. Johnson, trustee, upon receiving from the said substituted trustee the said sum of $1,527.56, the costs below and on this appeal to be paid by the appellee.


author: Mr. Justice Fell,

text:
    Green, Appellant, v. Baltimore & Ohio Railroad Company.

      Negligence — Railroads—Stations—Obstruction on floor of station — Passenger.

    In an action by a woman, who had been a passenger, against a railroad company to recover damages for personal injuries from a fall over a large cuspidor on the floor of the railroad station, judgment is properly entered for the defendant where it appears that the cuspidor in question was standing in a passageway eight or ten feet wide, about three feet from a row of seats, that there was nothing to show by whom it had been placed there, or how long it had been there, nor any facts shown by which knowledge of its position could be imputed to an employee of the defendant. In such a case the plaintiff after leaving the train had ceased to be a passenger, and the burden of proof was upon her to show affirmatively the negligence of the defendant.
    To hold that the mere proof of an injury caused by the misplacement of a loose piece of furniture in the waiting room of a station gives rise to a presumption of negligence that shifts the burden of proof, would be an unwarrantable extension of the rule applicable only to a passenger seated in a railroad car who is injured through the means of transportation.
    Argued Jau. 12, 1906.
    Appeals, Nos. 182 and 183, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1901, No. 4,066, for defendant non obstante veredicto in case of John S. Green and Buelah May Green, his wife, v. The Baltimore & Ohio Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before von Moschzisker, J.
    The facts are stated in the opinion of the Supreme Court.

      Verdict for John S. Green for $2,500 and for Benlah May Green for $5,000, subject to question of law reserved.
    The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was the judgment of the court.

      J. C. Stillwell, with him Charles Steen, for appellants.
    The plaintiffs were entitled to the benefit of all inferences which could be fairly drawn from the evidence: Hill v. Trust Co. 108 Pa. 1; Lerch v. Bard, 153 Pa. 573; McKee v. Bidwell 74 Pa. 218; Cohen v. R. R. Co., 211 Pa. 227; Trexler v. R. R. Co., 28 Pa. Superior Ct. 198.
    Where a railroad company says to its passengers, “ go this way,” it amounts to saying, “ this is the way that I have especially prepared so as to insure your safety. If you go any other way, you do so at your peril.” And where the company knows that passengers are frequently incumbered with packages, some carrying children in their arms, etc., which obstruct their vision, at a time of night when people are tired and consequently their sense of sight not keen, it is the duty of the company to so supervise the passageway as to keep it free from obstructions of all sorts: Reid v. Linck, 206 Pa. 109; McKee v. Bidwell, 74 Pa. 218.
    The company having provided a movable cuspidor was charged with the duty of seeing that it was kept in a safe place: Lycett v. Ry. Co., 42 N. Y. Supp. 431; Waller v. Ry. Co., 59 Mo. Appeal Rep. 410; Cross v. Ry. Co., 69 Mich. 363 (37 N. W. Repr. 361).
    The defendant owed a special duty to passengers whose vision was obstructed, to fasten the cuspidor in a safe place. The fact that it was movable is evidence of negligence, under the circumstances here present: Polenske v. Lit Brothers, 18 Pa. 474; Nicholson v. Philadelphia, 194 Pa. 460.
    When a thing is shown to be in a certain place at a certain time, the jury has a right to presume that it has been there for a period prior to that time, unless evidence be presented to the contrary: Russell v. Westmoreland County, 26 Pa. Superior Ct. 425; Lohr v. Phillipsburg Borough, 35 W. N. C. 548.
    An inference of negligence exists in this case; Gilmore v. Phila. & Reading R. R. Co., 154 Pa. 375; Rathgebe v. R. R. Co., 179 Pa. 31; Farr v. Ry. Co., 24 Pa. Superior Ct. 332; Ahern v. Melvin, 21 Pa. Superior Ct. 462.
    G. H. Stein and W. B. Linn, for appellee, were not heard.
    March 5, 1906:
   Opinion by;

Mr. Justice Fell,

Buelah M. Green, one of the plaintiffs, was injured by falling in the defendant’s station. She and her husband had been passengers on the defendant’s train and arrived in Philadelphia at midnight. They walked from the train-shed to the waiting room of the station and then proceeded along the central passageway in the direction indicated by a sign board towards steps which led to the street. The station was large and wéll lighted. The passageway was thirty-five feet in length and eight or ten feet in width, and on either side of it there was a row of seats facing inward. It does not appear that there were any passengers ahead of the plaintiffs, and they had a clear view of the passageway and of the steps. After walking ten or twelve feet in the station Mrs. Green, who was carrying a child in her arms, fell over a large cuspidor which she had not seen. She testified that she was walking three feet away from the row of seats, and struck something and fell over it. Her husband testified that after he had helped her up, he saw the cuspidor. A station master was standing some distance from them and two porters were in the room, one engaged in cleaning the steps with a brush and the other looking out of the door.

At the trial the defendant offered no evidence and asked for binding instructions in its favor, which were refused. The questions of the defendant’s negligence and of the plaintiff’s contributory negligence were submitted to the jury, whose finding was against the defendant. The court reserved the question whether there was any evidence in the case that entitled the plaintiffs to recover, and entered judgment for the defendant non obstante veredicto, for the reason that the undisputed facts established did not warrant the inference that the defendant’s employees either placed the cuspidor in the passageway or knew, or by proper inspection might have known, that it was there. The reason is thus more fully stated in the opinion filed by the learned trial judge : “ Neither of the plaintiffs, nor any of their witnesses saw the cuspidor in the aisle until after the accident; so how can we justifiably draw the inference that the company’s employees must have, should have, or could have, seen it in time to have prevented the accident? For the jury to say that the defendant should have known that the cuspidor was in the place where it was found after the accident, without any other facts to justify this other than the fact that it was so found, would be to allow a mere arbitrary finding without facts on which to base it, unless we are prepared to rule as a matter of law that it is the duty of the railroad company to so police its station that it will always and at all times and under all circumstances see that its aisles are properly clear of all obstructions that might possibly cause accidents, and this would be practically to hold railroad companies to be insurers of the safety of passengers, which under the authorities we cannot do.”

At the time of her injury Mrs. Green was not a passenger. She had left the train, passed from the train-shed to the passenger station and had selected one of several passageways leading to the street. The relation of passenger and carrier had ended, and the burden of affirmative proof of negligence was upon her: Railroad Co. v. Napheys, 90 Pa. 135; Hayman v. Railroad Co., 118 Pa. 508; Bernhardt v. Railroad Co., 159 Pa. 360. The only proof was that a cuspidor, similar to those in general use in public places, was standing in a passageway three feet from a row of seats. By whom it had been placed there or how long It had been there were not shown, nor was any fact shown by which knowledge of its position could be imputed to an employee of the defendant. The plaintiff’s case rested solely upon constructive notice. But the full measure of the defendant’s duty was reasonable care by inspection and policing to keep its station in a safe condition. To hold that the mere proof of an injury caused by the misplacement of a loose piece of furniture in the waiting room of a station gives rise to a presumption of negligence that shifts the burden of proof would be an unwarrantable extension of the rule applicable only to a passenger seated in a railroad car who is injured through the means of transportation.

The judgment is affirmed.


text:
    Sowers, Appellant, v. McManus.

      Negligence — Dynamite—Explosion—Burden of proof — Evidence.
    While the possession of dynamite to be used for a lawful purpose is neither unlawful nor negligent, the person in possession of it, is, as to third parties, bound to the highest degree of care, and failure to take every reasonable precaution to prevent explosion of it while in storage, is negligence. If an explosion occurs resulting in an injury, the burden of proof rests upon the person injured of showing either the specific act of negligence that caused the explosion, or such circumstances surrounding it as would justify the inference that the degree of care required by the law had not been observed. The maxim res ipsa loquitur has no application in such a case.
    In an action against a contractor to recover damages for personal injuries sustained by an explosion of dynamite, a witness for the plaintiff testified that dynamite had “possibly” been kept in a shanty and that in the morning about two hours before the explosion occurred he saw a few pieces of what he supposed was dynamite lying on the ground near a fire which an employee of the defendant had built near the shanty. The witness did not attempt to testify that defendant had any quantity of dynamite stored anywhere. There was no evidence to show what caused the explosion. Held, that the court committed no error in giving binding instructions for defendant.
    Argued Jan. 12, 1906.
    Appeal, No. 352, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March T., 1903, No. 2,175, on verdict for defendant in case of Mary E. Sowers and Philip Sowers v. Patricius McManus.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Wiltbank, J.
    The opinion of the Supreme Court states the case.
    The court gave binding instructions for defendant.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Robert B. Kelly, for appellants.
    This is a case that clearly comes within the rule of res ipsa loquitur : Shearman & Red-field on Negligence, sec. 59, p. 78; Shafer v. Lacock, 168 Pa. 497; Heh v. Gas Co., 201 Pa. 443; Booth v. Dorsey, 208 Pa. 276; Heeg v. Licht, 80 N. Y. 579; Fisher v. Ruch, 12 Pa. Superior Ct. 240.

      M. Hampton Todd, for appellee.
    The appellants’ position is, that having shown that there was an explosion of some kind, and the appellant having testified that she was thrown down by such explosion, she has made- out a prima facie case, and the burden is shifted to the appellee tó satisfy a jury, by competent evidence, that the appellee used due care. We respectfully submit that such is not the rule of law: Zahniser v. Torpedo Co., 190 Pa. 350; Spees v. Boggs, 198 Pa. 112; Earle v. Arbogast, 180 Pa. 409; Diver v. Singer Mfg. Co., 205 Pa. 170.
    March 5, 1906:
   Opinion by

Mr. Justice Brown,

The appellee had a contract to widen a railroad bed, and it may be fairly gathered from the testimony that in prosecuting his work he used dynamite for blasting purposes. It is in general use for such a purpose, and its possession by the appellee -was not unlawful nor, in itself, negligent. The explosion did not occur in connection with the use of it in blasting, and the appellants do not complain of the use of it by the appellee. Their complaint is that it exploded “ by reason of the carelessness and negligence of the defendant or his servants,” while stored near their premises.

While the possession of an explosive of the dangerous character of dynamite is not unlawful nor in itself negligent, care commensurate with the danger of having possession of this agent must be exercised at all times by those having it in their possession. No absolute standard of care can be established for the observance of those having it in their possession, but the general rule in cases like the present, where third parties, having no relation to the defendant, are injured by its alleged explosion, is that the highest degree of care must be exercised, and the failure to take every reasonable precaution to prevent explosion of it while in storage is negligence. As the mere possession of dynamite to be used for a lawful purpose is neither unlawful nor negligent, where one is injured by the explosion of it when stored, the burden rests upon him, as in other cases of negligence, of proving either the specific act or negligence that caused the explosion, or such circumstances surrounding it as would justify the inference that the degree of care required by the law had not been observed. When, as here, nothing appears but the explosion itself, there can be nothing but conjecture as to what caused it, and against conjectured negligence no man is called upon to defend, whether the care to be exercised by him be of ordinary or of high degree. In some cases he may be held to stricter proofs'than in others, but in none is proof required of him until there has first been actual proof of the negligence complained of, or of facts and circumstances from which it can be fairly inferred. “ The maxim res ipsa loquitur is itself the expression of an exception to the general rule, that negligence is not to be inferred but to be affirmatively proved. The ordinary application of the maxim is limited to cases of an absolute duty, or an obligation practically amounting to that of an insurer: ” Zahniser et al v. Pennsylvania Torpedo Company, Limited, 190 Pa. 350. Common carriers, in actions brought against them by passengers for not having carried them safely, are within the exception to the rule that negligence must be affirmatively proved ; and so, under certain conditions, are electric light companies in suits brought against them by patrons injured in the ordinary and regular use of the electric appliances furnislied'to them: Alexander v. Nanticoke Light Co., 209 Pa. 571. But the appellee is not within the exception, for the reasons that bring others within it do not apply to him. The burden of proving the negligence of the defendant was upon the appellants charging it.

There was but a single witness called in support of the allegation of the plaintiffs that the defendant had unlawfully allowed a large quantity of dynamite to be stored near their premises, which, by reason of the carelessness and negligence of the appellee or his servants, was exploded, causing the injuries complained of. This witness testified to nothing more than that dynamite had “ possibly ” been kept in a shanty, that in the morning, about two hours before the explosion, he saw a few pieces of what he supposed was dynamite lying on the ground near a fire which an employee of the defendant had built near the shanty. If dynamite had been stored in the shanty, or elsewhere, he could not say in what quantities. In short, he did not attempt to testify that defendant had any quantity of dynamite stored anywhere, and there is nothing to show that, if the few pieces that he saw near the fire were dynamite, their explosion was due to any negligence of the defendant. From all that appears in the testimony, if what the witness saw was dynamite, it may have exploded from a cause or causes over which the appellee had absolutely no control. The case could have been submitted to the jury only on the maxim res ipsa loquitur, and, as it was not within that maxim the direction to find for the defendant could not have been withheld.

Judgment affirmed.


text:
    Philadelphia, Appellant, v. Powers.

      Taxation — Lien of taxes — Sheriff’s sale — Discharge of lien.

    Under the Acts of February 3, 1824, P. L. 18, and March 11, 1846, P. L. 114, taxes in the city of Philadelphia are discharged by a sheriff’s sale if the proceeds of the sale are sufficient to pay them.
    Where real estate in the city of Philadelphia is sold under proceedings on a mortgage for $7,000, and it appears that taxes aggregating $2,000 for four years were at the time liens upon the property, and the city receives from the proceeds the taxes for the two years immediately preceding the sale,-but makes no demand for the taxes for the other two years, any claim filed for such taxes, or judgment entered on such claim, is absolutely void.
    Argued Jan. 15, 1906.
    Appeals, Nos. 244 and 245, Jan. T., 1905 by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1879, No. 499, M. L. D. on verdict for defendant in case of City of Philadelphia v. George Powers, Owner, William Hunt, Registered Owner, and the City Trust, Safe Deposit and Surety Company, Executor and Trustee under the will of William J. Swain, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Scire facias sur municipal lien for taxes.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) in opening the judgment; (2) in giving binding instructions for defendant.

      Mayne R. Longstreth, with him James Alcorn, assistant city solicitors, and John L. Kinsey, city solicitor, for appellant.
    One who buys land subject to a lien' cannot strike off for defects occurring prior to his purchase. His only defenses are subsequent satisfaction, or plea of nul tiel record, and that will fail if a judgment in form is produced: Hauer’s Appeal, 5 W. & S. 473; Drexel’s Appeal, 6 Pa. 272; Milleisen v. Senseman, 4 Pa. Superior Ct. 455; Davidson v. Thornton, 7 Pa. 128; Miners’ Trust Company Bank v. Roseberry, 81 Pa. 309; France v. Ruddiman, 126 Pa. 257.
    Nor have subsequent judgment creditors of a defendant in a judgment any standing to apply to have the judgment opened or set aside: Campbell v. Sloan, 62 Pa. 481; Woods v. Irwin, 141 Pa. 278; Moore v. Dunn, 147 Pa. 359; Holshue v. Morgan, 170 Pa. 217; Sponsler’s Appeal, 127 Pa. 410.
    He who is guilty of laches can expect no favorable action by the court. Long delay is a strong circumstance against the applicant: Littster v. Littster, 151 Pa. 474; Lytle v. Hoover, 175 Pa. 408; Philadelphia v. Wallace, 7 Pa. Dist. Rep. 721; Adams v. Grey, 154 Pa. 258; Gillespie v. Rogers, 184 Pa. 488; Cyphert v. McClune, 22 Pa. 195; Vanline v. Finney, 1 W. N. C. 8; Saunders’s App., 19 W. N. C. 507; Schenck’s App., 94 Pa. 37; Applebee’s App., 126 Pa. 385; Phila. v. Michener, 7 W. N. C. 558.
    And the right to have a judgment stricken off for irregularities is lost by acquiescence for a considerable period of time and until after the revival of the judgment by sci. fa. duly served on the defendant: Henderson v. Henderson, 13 W. N. C. 533; Harper v. Biles, 115 Pa. 594.

      William O. Ferguson, for appellee,
    cited: Smith v. Simpson, 60 Pa. 168; Phila. v. Hiester, 142 Pa. 39; Phila. v. Kates, 150 Pa. 80; Holmes v. R. R. Co., 18 W. N. C. 429; Hickernell’s App., 90 Pa. 328; Kneedler’s App., 92 Pa. 428; Phila. v. Browning, 13 Pa. Superior Ct. 164; Phila. v. Reeves, 15 Pa. Superior Ct. 535; Phila. v. Unknown Owner, 20 Pa. Superior Ct. 203.
    March 5, 1906:
   Opinion by

Mr. Justice Fell,

Under proceedings on a mortgage, real estate in Philadelphia, against which taxes for four years amounting to about $2,000 had been assessed, was sold by the sheriff in 1878 for $7,000. The city collected from the sheriff the taxes for 1877 and 1878, but made no claim for those of 1875 and 1876. The sheriff’s docket shows two receipts by the proper officer of the city, one for the taxes of 1878 and one for “$598.61, taxes prior to 1878.” In 1879 the city filed a claim for taxes for 1875 and 1876, and brought suit thereon in 1884 and obtained judgment for want of an affidavit of defense in 1889. This judgment was revived in 1894 and again in 1899. The scire facias issued in 1884 was served on the registered owner who conveyed the real estate to Swain in 1892. In 1903 the trustee of Swain’s estate obtained a rule to show cause why the judgment should not be opened, which was made absolute. The issue tried was whether the lien of the taxes for which judgment had been obtained had been discharged by the sheriff’s sale in 1878. One of these appeals is from the order opening the judgment, the other is from the direction to the jury to find for the defendant. It was agreed at the trial that “ Swain in no way assumed the payment of the taxes, either actually or constructively.”

Under the Acts of February 3, 1824, P. L. 18, and March 11, 1846, P. L. 114, taxes in the city of Philadelphia are discharged by a sheriff’s sale if the proceeds of the sale are sufficient to pay them: Smith v. Simpson, 60 Pa. 168. The fund realized by the sheriff’s sale in 1878 was sufficient to pay the costs and taxes, and the lien of the taxes was discharged. If the claim for taxes had been a valid one, the lien was lost by the failure to bring suit within five years from the time the taxes became due: Philadelphia v. Hiester, 142 Pa. 39; Philadelphia v. Kates, 150 Pa. 30. It is argued, however, that when Swain took title he had constructive notice that a claim had been filed and judgment obtained thereon, and that he had no standing as terre-tenant to contest the validity of the judgment. A search of the record would have disclosed a claim for taxes filed after a sheriff’s sale which discharged them, and a receipt by the proper officer showing their actual payment; and that a scire facias had been issued on this claim three years after the right of action was-barred. Swain was not in the position of a purchaser of land subject to an encumbrance who seeks to avoid it because of an irregularity which his grantor might have taken advantage of. The lien in this case had nothing to support it, and was absolutely invalid. It was discharged by operation of law, if not by actual payment. In Smith v. Simpson, 60 Pa. 168, it was held that a sheriff’s sale for taxes, the lien of which had been discharged by a prior sheriff’s sale on a judgment for arrears of ground rent, passed no valid title to the purchaser.

The judgment is affirmed.


text:
    Yardley National Bank v. Vansant, Appellant.

      Promissory notes — Affidavit of defense — Practice, C. P.

    In an action upon a promissory note an affidavit of defense is insufficient in which the defendant admits that he made a note identical with the copy filed in date, in amount, in payee and in time and place of payment, and that the note passed by indorsement to the plaintiff in renewal of his prior note which the plaintiff had discounted, and the only difference averred between the copy filed, and the note alleged to have been made is that the latter contained the words and figures, “In renewal of $5,000 note.”
    Argued Jan. 15, 1906.
    Appeal, No. 95, Jan. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1904, No. 719, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Yardley National Bank v. Edward A. Yansant.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    Rule for judgment for want of a sufficient affidavit of defense.

      Tlie averments of the affidavit of defense are sufficiently-stated in the opinion of the Supreme Court.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      JError assigned was the order of the court.

      Hopple & Buckman, for appellant,
    cited: Acme Mfg. Co. v. Reed, 181 Pa. 382; White v. Sperling, 24 Pa. Superior Ct. 120; Citizens’ Nat. Bank v. Piollet, 126 Pa. 194; Iron City Nat. Bank v. McCord, 139 Pa. 52.

      Alfred N. Keim, with him Carroll R. Williams, for appellee,
    cited: Overton v. Tyler, 3 Pa. 346.
    March 5, 1906:
   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 by an indorser against the maker of a promissory note. The statement of claim contains a copy of the note and averments of indorsements and deliveries by which the plaintiff became the holder for value, before maturity and without notice of any defense. The defendant avers in his affidavit of defense, “ That he never made or authorized anyone to make on his behalf a promissory note whereof the writing averred to be a copy in the statement of plaintiff’s claim is a copy. Deponent did make a promissory note on November 16, 1904, in which he promised to pay six days- after the date thereof to the order of Elias Hogeland, at the Yardley National Bank, five thousand dollars ($5,000), but written upon the face of and as part of the said note, were the words and figures following, ‘ In renewal of $5,000 note,’ which note was made under the circumstances following.” A detailed statement is then made of the circumstances under which the note was given and of the facts relied on as a defense on the merits.

The defendant admits that he made a promissory note identical with the copy filed in date, in amount, in payee and in time and plaee of payment, and that the note passed by indorsement to the plaintiff in renewal of his prior note which it had discounted. The only difference between the copy filed and the note alleged to have been made is that the latter contained the words and figures, “ In renewal of $5,000 note.” It is unnecessary to consider what effect should be given to an admission in an affidavit of defense which supplements a defective statement by supplying omitted facts. The statement filed showed a complete cause of action. The part of the note omitted from the copy did not make the note an incomplete obligation. It was not a part of the contract to pay 'but a memorandum added for .the purpose of identification, and it in no way affected the negotiability of the note.

The merits of the defense set out in the affidavit were not discussed in the argument of the case. The facts alleged show only that the defendant was an accommodation maker of the note.

The judgment is affirmed.


author: Mr. Justice Bbown,

text:
    Dougherty v. Dobson, Appellant.

      Negligence — Master and servant — Infant—Dangerous machinery.

    Where a boy thirteen years old employed in a cotton mill for the sole purpose of removing bobbins when machinery is at rest, is suddenly directed by the foreman of the mill to remove cotton threads which had blown into moving cogwheels, and the moving cogs draw the boy’s hand into the machinery after he had taken hold of the threads, the question of the employer’s negligence and the boy’s contributory negligence is for the jury, and a verdict and judgment for the boy will be sustained, and this is the case although placards in the mill forbade employees under penalty of dismissal to clean machinery while in motion.
    Argued Jan. 4, 1906.
    Appeal, No. 132, Jan. T., 1905, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1902, No. 3,409, on verdict for plaintiff in case of Thomas Dougherty, by his next friend and father, John A. Dougherty, v. John and James Dobson.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Barratt, J.
    The facts are stated in the opinion of the Supreme Court.

      Verdict and judgment for plaintiff for $2,500. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Thomas Earle White, with him White, White & Taulane, for appellants.
    The question of contributory negligence, whether of a minor over or under the age of fourteen years, can only become a factor in a case if there be evidence which, if believed, would justify the jury in finding that a defendant were guilty of negligence, and the question whether or not there is such evidence is a question of law to be determined by the court before submitting the case to a jury: R. R. Co. v. Hummell, 44 Pa. 375; Clough v. Hoffman, 132 Pa. 626; R. R. Co. v. Schertle, 97 Pa. 450; Rummel v. Dilworth, 131 Pa. 509; Ross v. Walker, 139 Pa. 42.
    An employer is not liable for failure to instruct a minor employee as to the danger of cleaning a machine while it is in motion, where the danger is not only obvious, but where the danger is realized by the employee: Cudahy Packing Co. v. Marcan, 106 Fed. Repr. 645; O’Keefe v. Thorn, 24 W. N. C. 379; Zurn v. Tetlow, 134 Pa. 213; Ciriack v. Merchants’ Woolen Co., 146 Mass. 182 (15 N. E. Repr. 579); Lane v. Moore, 151 Mass. 87 (23 N. E. Repr. 828); Ash v. Verlenden, 154 Pa. 246; Betz v. Winter, 195 Pa. 346; Oskoscil v. Pencil Co., 6 N. Y. Supp. 501; Hickey v. Taaffe, 105 N. Y. 26 (12 N. E. Repr. 286).
    An employer is not liable for failure to instruct a minor employee as to the daiiger of cleaning a machine while it is in motion, where he was specifically directed by regulations that machinery shall not be cleaned while in motion, which regulations are known to the employee, and he is injured while in the act of disobeying them: McEwen v. Hoopes, 175 Pa. 237; R. R. Co. v. Zebe, 33 Pa. 318; Flanagan v. Ry. Co., 163 Pa. 102; Pilkinton v. Ry. Co., 70 Texas, 226 (7 S. W. Repr. 805).

      Edmund Randall, with him M. J. McEnery and James A. Flaherty, for appellee,
    cited: Lewis v. Seifert, 116 Pa. 628; Ross v. Walker, 139 Pa. 42; Welsh v. Butz, 202 Pa. 59; Tagg v. McGeorge, 155 Pa. 368; Prevost v. Ice Co., 185 Pa. 617; Casey v. Paving Co., 198 Pa. 348; Lillie v. Am. Car & Foundry Co., 209 Pa. 161.
    March 5, 1906:
   Opinion by

Mr. Justice Bbown,

The appellee, when in his thirteenth year, was employed by the appellants as a “ doffer ” in one of their mills. The sole duty of his employment, which was performed when the frame stopped, was to take off full bobbins, lay them aside and put empty ones on it in their place. After replacing the full bob* bins with empty ones there was nothing for him or the other doffers to do until the frame was again stopped, when they repeated the performance. While it was in motion the doffers, according to the testimony of the manager of the appellants, sat down on,benches. When the appellee was employed he was turned over -by the foreman, Harry Flynn, to a little girl for instruction, who simply showed him how to take the bobbins off and put them on. He testifies that no warning was ever given him of the danger of the machine, and this may be so, for he was employed to do work on it only when it was not in motion and could not have been dangerous to him.

When the appellee had been in the service of the defendants for about two weeks, on the morning of May 15,1902, at about 6 o’clock, after he had worked for almost twelve hours during the preceding night, the foreman came near to where he was standing waiting for another doffing and said to him, “ Hey, there, boy, take that cotton out of the cog, quick.” He turned around and saw that a draught from the window had blown threads into the cog wheels, and, instantly complying with the order given him, took hold of the ends, giving them a kind of twist to break them off. They were twisted into a thread which was too strong to break, and his fingers were drawn into the cogwheels and crushed. For the injuries thus .sustained he seeks compensation in this suit.

What the appellee was directed to do by the foreman was no part of his-duty as a doffer. This is conceded. The defendants themselves proved that the duty he was suddenly called upon to perform rested on the spinners alone, who were directed to perform it only when the machinery was not in motion. By placards'around the mill the employees were prohibited from cleaning the machinery while it was in motion, under penalty of dismissal, and one of the reasons urgently pressed by counsel for the appellants why the appellee cannot recover is that he disregarded this plain rule of his employers, known to him and every other employee. Conceding that they all had knowledge of it, the employers could at any time have revoked it, or on any occasion directed that, notwithstanding it, machinery should be cleaned while in motion, and if the appellee had acted in pursuance of such direction given by them it can hardly be pretended that they could now shield themselves under the rule from the consequences resulting from their direction to violate it.

If the testimony of the appellee is to be believed, and what was done by him is to be regarded as coming within the rule prohibiting the cleaning of machinery, the direction' to disregard and violate it was given by the man whom the appellants had placed in their mill as their representative, who had employed the boy and whose duty, according to his own testimony, was to see that the appellee and the other employees did their work, whose superior he was, and whom they were bound to obey. If he ordered the appellee to disobey the printed direction of the appellants to their employees, they can find no shelter in their rule, for the foreman was their representative in the mill to secure employees for them, to see that the employees did their duty, being, according to his own testimony, the superior to whom they were responsible. Nothing more need be said upon this branch of the case than to call attention to Tagg v. McGeorge et al., 155 Pa. 368, as authority for holding that the defendants were bound by the act of their employee in directing the appellee to do the work which resulted in the injury to him. In that ease, Tagg, a boy past thirteen years of age, was employed by the defendants in their woolen mill. The foreman, Chadwick, hurriedly directed him to clean a machine while it was running, without informing him of the peculiar danger incident to such work. The jury were instructed that, if the foreman gave the order to the boy, telling him to clean the machine while it was running, and the boy obeyed him, either from fear of the consequences of disobeying or because he thought the foreman knew more than he did, or his discretion was in any way interfered with by the order so given him, the defendants would have to answer for the direction of the foreman, and the boy could recover. This instruction was approved in an opinion by the late Justice Dean, affirming the judgment in favor of the plaintiff.

The appellee was employed to do but one thing' — to change the bobbins — -and in the performance of this duty, as already stated, he was in no danger. Suddenly, without a moment’s notice, he was called upon to do another thing by the man placed over him by the appellants as his superior, and whom he was bound to obey. It was not to clean machinery, but to pull from the running cogwheels some threads that had been blown into them by a draught. The foreman knew this was dangerous, for he testified that he told the appellee to “ keep away from all cogwheels because they were dangerous ” ; but the boy (and his testimony was for the jury) says he was never so notified and that what he did when he was injured was done in direct obedience to the orders given him by his superior.

In submitting the case to the jury they were instructed that the only negligence of which they could find the appellants guilty was this sudden direction of their foreman, given to the boy to instantly do a thing not within the line of the duties of .his employment, and the doing of which the foreman must have known to be dangerous. Under the boy’s testimony, there was a finding that such direction had been given, and that, under the circumstances, he had not been guilty of contributory negligence. He testified to the care he tried to exercise to avoid coming into contact with the wheels. The instructions to the jury as to the boy’s negligence were: “ While it is true the plaintiff says that he knew these cogwheels were dangerous, he was still a little boy, and was not called upon to set up his own unaided judgment against that of his foreman. He had the right to rely upon his advice, and still more upon his orders, notwithstanding many misgivings of his own. His dependent and inferior position is to be taken into consideration, and if the foreman gave him positive orders to do this thing under perilous circumstances, the plaintiff may recover for injuries incurred in doing it, if the thing which he did was not inevitably and immediately dangerous.” This is the limit to which the learned trial judge could have gone in commenting on the contention of the appellants that the contributory negligence of the appellee relieved them from any liability for their own. He did not put his fingers into the cogwheels, but took hold of threads several inches from them, and, in trying to pull these out, his hand, in giving the' threads a twist, was drawn into the wheels. The jury could have fairly found, as they did find, that he was not bound to have known that what he undertook to do in obedience to the orders given him was immediately and inevitably dangerous. Though he had not been warned of the danger to which he was subjected by the imposition of the new duty upon him, he explained to the jury how he tried to he careful under the circumstances.

Assuming that the appellee knew the cogwheels were dangerous, he did not, as just stated, attempt to put his fingers between them, and when he responded to the order given him to act on the instant, he cannot be held to have been negligent because he did not stop, reflect and see that he was subjecting himself to inevitable danger. Of an adult employee, it is said: “ If an employee is in haste called upon to execute an order requiring prompt attention, he is not to be presumed necessarily to recollect a defect in machinery, or a particular danger connected with his employment, so as to avoid it. A prompt and faithful employee suddenly called upon by a superior to do a particular act, cannot be supposed to remember at the moment a particular danger incident to its performance, of which he had previous knowledge ; and it would be most unreasonable to demand of him the thought and care which might be exacted when there is more time for observation and deliberation: Wharton on Negligence, 219;” Trunkey, J., in Lee v. Woolsey, 109 Pa. 124. Of this boy — not thirteen years of age at the time he was injured — -it may be aptly repeated: “He was but little more than a child either in years or in strength, and could not be expected to have the will power of a full grown man in resisting his master’s order. He cannot be held, therefore, as one who voluntarily engages in a dangerous service, especially by a master who specifically directed him to do the hazardous work: ” Kehler v. Schwenk, 151 Pa. 505.

The court would have erred in directing a verdict for the defendants. The questions of the negligence of the defendants and the contributory negligence of the plaintiff were for the jury alone and were submitted to them under proper instructions. The assignment of error is dismissed and the judgment affirmed.


text:
    Joseph P. Murphy Company’s Assigned Estate.

      Factors — Advances—Contract—Debt—Assignment for creditors.

    ' Where a factor makes advances to his principal for goods consigned, the only agreement implied by law in the transaction is that the consignor will repay to the consignee any balance due on the advances, if it appeal’s, that, after a sale of the consigned goods, and upon an account stated, the proceeds are insufficient to repay the advances. Until the factor, if he keeps the goods consigned to him, has performed the whole of his contract by selling them, and accounting to his principal, there is no default by the latter, and, therefore, no debt or liability to the former. If in such a case the consignor makes an assignment for the benefit of creditors, the claim of the consignee against the assigned estate is limited to the difference between the amount of the advances and the proceeds of the goods sold. He cannot claim for the whole amount of the advances on the theory that the advances are a debt, for which he holds the goods as collateral security. In such a case the rule of allowing no interest in insolvent estates properly applies.
    Argued Jan. 4, 1906.
    Appeal, No. 134, Jan. T., 1905, by Frederick Vietor & Achelis from order of O. P. No. 1, Phila. Co., Sept. T., 1898, No. 408, dismissing exceptions to auditor’s report in Assigned Estate of Joseph P. Murpby Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of Ira J. Williams, Esq., auditor.
    The opinion of the Supreme Court states the case.

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

      Charles H. Edmunds, with him Harris S. Sparhawk and John Sparhawk, Jr., for appellants.
    As Vietor & Achelis were creditors of the assigned estate at the time of the assignment and held collateral security for the same, they were undoubtedly entitled to prove their claim in the sum then standing to their credit and have the dividend computed upon it: Patten’s App., 45 Pa. 151; Miller’s App., 35 Pa. 481; Graeff’s App., 79 Pa. 146; Boyer’s App., 163 Pa. 143.
    Interest should have been allowed: Patten’s App., 45 Pa. 151; Shultz’s App., 11 S. & R. 182; Est. of Bank of Penna., 60 Pa. 471.

      Frank P. Prichard, for appellees.
    When the case is the ordinary one of principal and factor and the moneys paid to the principal by the factor are advances there is no personal debt on which suit can be brought until there has been a settlement of account. The factor may sell the goods and the proceeds may be more or less than the advances, in which case one or the other party becomes a creditor for the balance. Or the factor may, after reasonable efforts, fail to sell the goods, in which case he may terminate the agency, render an account and become a creditor for the balance due him on offering to return the goods. Or the relation may be terminated in any other way, requiring a settlement of accounts and making one party or the other a creditor for the balance found. Interest is, by the custom of merchants, allowed on both sides of the account and was so charged in the present case: Frothingham v. Everton, 12 N. H. 239.
    March 5, 1906:
   Opinion by

Mr. Justice Brown,

In a well considered report, confirmed by the court below, the auditor who made distribution of the balance in the hands of the assignee of the Joseph P. Murphy Company, an insolvent corporation, found that the relationship existing between it and the appellants at the date of the assignment was not that of debtor and creditor, but of principal and factor. They were accordingly awarded a dividend only on $20,054.67 — the balance found to be due them after they had received upon sales made subsequently to the assignment the proceeds of the goods consigned to them. They claimed a dividend on $120,807.49, the entire amount of advances due them at the date of the assignment, including interest, provided, of course, that the dividend should not exceed the balance -really due them. This claim was made upon the theory that at the date of the assignment they were general creditors of the assignor, holding as security for indebtedness due them the goods that had been consigned to them by the insolvent company. If this was the real situation, their contention was proper, and the dividend claimed ought to have been allowed them: Morris v. Olwine, 22 Pa. 441; Patten’s Appeal, 45 Pa. 151; Miller’s Estate, 82 Pa. 113; Boyer’s Appeal, 163 Pa. 143.

The testimony of Frederick Vietor, one of the appellants, shows just wliat the relationship was between his firm and the Joseph P. Murphy Company, and, in the light of it, the auditor could have reached no other conclusion than that they were factors, the agents of the consignor, employed by it to sell its goods consigned to them for sale for a compensation commonly called factorage or commission. After stating that his firm was engaged in the dry goods commission business, he said: “ The arrangement with Mr. Murphy was that he was to consign us goods, upon which we would give him 66 2/3$ to 70$ advances, and we were to hold the goods as collateral as against such advances.” The goods consigned to them were undoubtedly to be held as collateral security for the repaymentof the advances made to their consignor, but not for an indebtedness created by the latter, which the consignees could have called upon it to pay on demand or at any specified time. The appellants, under a proper agreement with the consignor, might have become its creditors for the amount of each advance from the time it was made, and acquired the right to hold the goods as collateral security for the indebtedness ; but there was no such ageement. The undertaking of the appellants, engaged in the business of selling on commission, was to sell the goods of the consignor for profit to themselves in the regular course of their business, accounting to consignor for the proceeds ; and, as an incident to this undertaking and an inducement to the consignor to so have its goods sold, they agreed to make advances on the proceeds which were to be paid to them and out of which they were to repay themselves. The agreement on their part to advance was not one carrying with it an obligation on the part of the consignor to repay as its primary debt, whenever called upon to do so, the sum or sums advanced. The implied obligation of the consignor was to pay whatever sum, if any, should be found due on the advances made to it after its goods had heen sold by the consignees and an account stated between them, fixing the measure of its liability. From all that appears in this case, the contract was the ordinary one between principal and factor, in which there is no implied agreement that advances, made under a belief by the factor that he is fully protected by the goods consigned for sale, shall be repaid by the principal before the goods are sold. The only agreement implied by the law in such a case is that the consignor will repay to the consignee any balance due on the advances, if it appears, after a sale of the consigned goods and upon an account stated, that the proceeds are insufficient to repay what has been advanced. Until the factor, if he keeps the goods consigned to him, has performed the whole of .his contract by selling them and accounting to his principal, there is no default by the latter, and, therefore, no liability to the former. The factor undertakes to look primarily to the goods consigned to him for the moneys not loaned, but advanced on anticipated sales, and the liability of the principal is limited to the difference between the amount advanced and the proceeds of the sale of his goods sold by his consignee. For this amount, and this amount only, after it had been definitely ascertained by an account stated, could the appellants have brought suit against the assignor, if it had not made an assignment for the benefit of creditors, and for such an amount only can they ask for a dividend from its assigned estate. The holder of an absolute obligation for indebtedness, even if secured by collaterals, stands on a very different footing. He may call for his money at once, for the primary obligation of the debtor is to pay the whole amount due, without regard to securities he may have given his creditor for its payment. The amount of his liability is what he owes, and until that is paid it is the basis of the creditor’s claim wherever presented or pressed. It is for this reason that a creditor of an assigned estate may present against it the whole amount of his debt unpaid at the time of the assignment, without regard to any collateral security he may have in his hands. So a factor may present the whole amount of his unpaid claim, but as it cannot be more than the difference between the advanees and the amount realized, or that he ought to realize from the assets in his hands, and to which he must primarily look for payment, he cannot present it for more. In expressing the foregoing views we have not considered the insolvent Act of June 4, 1901, P. L. 404, as the rights and liabilities of the parties in this controversy were fixed before the passage of that act.

Our attention has not been directed to any of our own cases upon the question raised on this appeal, but our disposition of it has the sanction of reason and is sustained by the weight of decisions by the courts of other states. To what is said in several of them attention may be called as correct expressions of the law.

The rights of a factor and the liability of a principal are clearly set forth in Frothingham v. Everton, 12 N. H. 239, as appears from the following extract: “ The two sums, which furnish the foundation of the plaintiffs’ action, appear, by the case, to have been moneys advanced by the plaintiffs as commission merchants, or factors, upon a consignment of the wool, the proceeds of the sale of which form the item of credit in the plaintiffs’ account. No particular agreement is stated to have been made, respecting the repayment of these sums, when they were advanced by the plaintiffs; and it may be taken, therefore, that it was then in the contemplation of both parties, that the plaintiffs were to be reimbursed out of a sale of the goods upon which the advances were made, if sufficient should be realized — that a credit was given to the defendant until a sale should be made, or until a reasonable time had elapsed in which the plaintiffs might endeavor to make a sale; and that the plaintiffs could not, immediately upon furnishing the money, have commenced a suit against the defendant for its recovery. But the plaintiffs’ claim to reimbursement did not depend entirely upon the goods consigned, there being no special contract to that effect. In case of loss by fire, or otherwise, without the fault of the plaintiffs, they might have recovered the whole amount of the advances, of the defendant; and if they had not been limited in the price, and had sold in the regular course of their duty as factors, for less than the amount of the advances, they might well have recovered the balance of the advances in this suit. And notwithstanding they were limited in the price, if the defendant had refused, upon application, after a reasonable time, to repay the advances, the plaintiffs might have sold them at the fair market price, although below the limit, and have recovered the balance.” In Gihon v. Stanton, 9 N. Y. 476, it is said: “It would seem, from an examination of the long series of cases on this subject, that hardly anyone had ever thought of contending that a factor or commission merchant, who, for the sake of inducing consignments to himself, makes advances to the consignor upon the faith of the goods consigned, and in anticipation of their avails, could, without' rendering any account of the disposition of the goods, or of their proceeds, turn immediately around and sue for and recover back the amount of his advances. The question has arisen, whether advances of this kind are not made prima facie upon • the exclusive credit of the property consigned; and whether the factor could without some special agreement to that effect resort to the personal resonsibility of the principal at all, even for a deficiency. . . . From these cases it is strongly to be implied that the factor or commission merchant must first have recourse for reimbursement to the fund in his hands before resorting to his principal. That the credit, where a commission merchant makes advances upon consignments to him, is given primarily to the fund to be derived from the sale of the property consigned, would seem to result from the very nature of the transaction. The object of the consignor is not to borrow money, but to realize in advance some portion of the avails of his property. That of the consignee is not to make a loan of money for the accommodation of the consignor, or for the sake of the interest, but to increase the profits of his business, which depends upon. the amount of consignments he can secure. He frequently knows little or nothing of the personal responsibility of the consignor, and must of course rely upon the property as his security. The lien which the law gives him for his advances upon the goods consigned from the moment of their shipment, and which it protects by the most stringent rules, affords of itself some evidence that he is regarded as having made the advance primarily upon the credit of the goods. . . . Again, the commercial language universally applied to such a transaction goes to refute the ground taken by the plaintiffs. It is called an advance. An advance is something which precedes; and of course there is something to follow. As applied to the payment of money, the term implies that the parties look forward to a time when the money will be due to the recipient. A debtor who voluntarily'pays his debt before it is due is said to advance it. Can he recover it back ? An advance by a factor is a transaction somewhat similar. It is a prepayment; a mere anticipation of the avails of the goods bonsigned; and no more creates a debt in the first instance, than an advancement of a father to his son, in anticipation of his expected inheritance, creates a debt. It is true, that if the property proves insufficient to reimburse the factor for his advances, the law, in the absence of any agreement to the contrary, implies an undertaking to make up the deficiency.”

It was held in Balderston v. National Rubber Co., 18 R. I. 338, that where the consignor makes an assignment for the benefit of creditors, the factor cannot have a dividend on the whole amount of his advances existing at the time of the assignment, but only on such part thereof as he shall be unable to realize from the consigned goods in his hands, and what was said in a well-considered opinion of the facts in that case applies to those in this: “ It is not reasonable to suppose that the parties to the agreement before us contemplated that the advances made in pursuance thereof should constitute a present indebtedness on the part of the consignors, for which an action might at once be maintained. What are ‘ advances ? ’ They are moneys paid by the factor to His principal, on the credit of the goods consigned, and in anticipation of the debt which will become due to the principal upon the sale of such goods. The ordinary use of the term indicates moneys paid before, or in advance of, the proper time of payment. To ‘ advance ’ is to' ‘supply beforehand’; ‘to loan before the work is done or the goods are made.’ ” After referring to Gihon v. Stanton, and the rule there announced, the opinion proceeds: “ That the law as thus stated is well founded in reason, and, indeed, well-nigh indispensable to the successful prosecution of manufacturing and commercial enterprises, is evident from the results which might follow from the adoption of the rule contended for by the plaintiffs; for, if an advance by a factor has the effect of creating a present indebtedness against the consignor, the latter is liable at any moment to be called upon to repay the amount advanced, and, failing so to do, to render liis property-liable to be attached, and his whole business stopped, if not destroyed, while, at the same time, the goods which have been probably produced in part by virtue of the advances, are in the hands of the factor, and, presumably, entirely sufficient to compensate him for all his advances. . . . Moreover, we may add that, so far as we are aware, the custom and understanding among merchants and factors in this state are in harmony with the views which we have herein expressed regarding advances. It is clear, therefore, that in no event can the plaintiffs claim a dividend from the assignee upon the whole amount of the advances made by them and unpaid from the proceeds of goods sold at the time of said assignment. But, as before intimated, we think the better doctrine is, that where' advances are made upon the faith of the goods consigned, and especially under an agreement like the one before us, the proceeds are to be deemed as the primary fund to which the factor must look for reimbursement, and that it must be made to appear that this fund is insufficient before he can recover his advances from the consignor.”

As the claim of the appellants was the difference between the advances made by them and the value of the consigned goods in their possession at the date of the assignment, the rule of allowing no interest in insolvent estates was properly applied. The assignments of error are all overruled and the decree is affirmed at the cost of appellants.