author: Mjr. Justice Elkin,

text:
    Peeling v. York County, Appellant.

      Sheriffs—Fees—Transportation of prisoners—Mileage—Act of July 11, 1901, P. L. 663.
    Under the Act of July 11, 1901, P. L. 663, which provides that “the sheriff shall be entitled to receive and have taxed as costs ten cents a mile, for each mile actually traveled and necessary,” the sheriff is entitled to charge ten cents a mile circular in transportation of prisoners to the penitentiary or other penal institutions.
    Under the act of July 11, 1901, which provides that the sheriff shall be entitled to charge “for transportation of each' prisoner, six cents per mile in addition to necessary help and expenses,” the sheriff may charge for hack hire paid by him in conveying prisoners from a railroad station to the institution to which they were committed; but in such a case the burden is on the sheriff to show affirmatively that the help employed and the expenses incurred were actually necessary for this purpose.
    On an appeal from county auditors’ disallowing a sheriff’s claim for mileage, the proceedings in the common pleas are de novo and the sheriff must make out a prinia facie case. If the parties at the trial agree upon most of the material facts, and the county calls the sheriff as for cross-examination and elicits from him, the facts relating to the only disputed matter, and the case is thus tried upon its merits, the appellate court will not reverse a judgment on a verdict for the sheriff because of any irregularity in the presentation of the proof.
    Argued May 15, 1905.
    Appeal, No. 94, Jan. T., 1905, by defendant, from judgment of C. P. York Co., Aug. T., 1904, No. 112, on verdict for plaintiff in case of Edward C. Peeling v. The County of York.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Appeal from report of county auditors. Before Stewart, J.
    From the record it appeared that the county auditors disallowed a claim of the sheriff amounting to $2,027.98 for fees, mileage and expenses in transporting prisoners to the House of Refuge, Lunatic Asylum, Harrisburg, Pa., Huntingdon Reformatory and the Eastern Penitentiary.
    At the trial plaintiff presented this point:
    1. That under the fee bill of July 11, 1901, P. L. 663, the sheriff of York county, Pa., was entitled to receive from the county as mileage for himself in serving the order transporting the parties named in his bills, the sum of ten cents per mile circular for each and every mile actually traveled by him both going and coming between the points that it was necessary for him to travel in the transportation of said parties. Answer : This point I will affirm. The act of assembly says he is entitled to be paid ten cents a mile for each mile actually traveled and necessary. [2]
    The defendant presented these points :
    1. The plaintiff is not entitled under the law to circular mileage claimed by him in transporting persons or prisoners under commitments or orders of the court to the Eastern Penitentiary, the House of Refuge at Glen Mills, Pa., the Industrial Reformatory at Huntingdon, Pa., or the State Lunatic Asylum at Harrisburg, but is entitled to lawful mileage one way only. Answer : This point is refused. [3]
    6. Hack hire for prisoners, or hack hire for the sheriff, cannot be charged, such expense is covered by the sheriff’s and prisoner’s mileage allowed by law, and from the total charges in the bills for hack hire must be deducted such portions thereof as are properly assignable to the sheriff and the prisoners. Answer ; This point is refused. If the money paid for hack hire is thought by the jury to be reasonable and proper then they should make no such deduction. [4]
    Verdict and judgment for plaintiff for $2,109.06. Defendant appealed.

      Errors assigned were (2-4) above instructions, quoting them.

      Charles A. Eawlcins, of Blade Eawlcins, with him E. B. Ziegler, County Solicitor, for appellant.
    The words “ traveling expenses ” in the act are inconsistent with a ten cent mileage both ways. The mileage is to cover traveling expenses. It is a matter of common knowledge that ten cents a mile one way would be ample to meet all traveling expenses : Price v. Lancaster County, 7 Pa. Superior Ct. 119; O’Leary v. Northumberland Co., 30 Pa. C. C. Rep. 371; Winters v. Dauphin County, 5 Pa. Dist. Rep. 528; Honeybrook Twp., 1 Chester Co. Rep. 464; Davison v. Franklin Co., 18 Pa. C. C. Rep. 374.
    That the proceeding on appeal is de novo with regard to any matter in controversy we think is clearly, and logically shown in the opinion of Judge Rice in Horning’s Case, 26 Pa. Superior Ct. 282; Brown v. Com., 2 Rawle, 40.

      N. M. Wanner, with him J. W. Heller, for appellee.
    That the returning miles are necessarily traveled, is obvious from the fact that it is physically impossible to get back otherwise, and because it is officially necessary to come back and make return of his service of the process in his hands, and resume his other sworn official duties : Kottcamp’s Appeal, 18 York Legal Record, 190.
    Deputies are .admittedly necessary help, and as the court below said you cannot compel a prisoner-to walk. The sheriff in this case has sworn that it was in his judgment a necessary precaution and a more secure method' of transportation, than to take prisoners otherwise through the streets. His evidence was uncontradicted, and his f uther statement that the deputies were necessary for the safe conduct of his prisoners stands unchallenged. There is no allegation that he took more deputies than necessary, or that he has charged more than he actually paid out for the necessary transportation-of his prisoners in a safe and prudent manner: Mansel v. Fulmer, 175 Pa. 377.
    May 22, 1905 :
   Opinion by

Mjr. Justice Elkin,

This appeal involves two questions arising under the Act of July 11, 1901, P. L. 663, which regulates and establishes the fees to be charged by sheriffs in the several counties of the commonwealth. The first point to be considered is whether a sheriff in the transportation of prisoners to the penitentiary or other penal institutions, should charge ten cents a mile direct or circular. The act provides that “ the sheriff shall be entitled to receive and have taxed as costs ten cents a mile, for "each mile actually traveled and necessary ” in the performance of his official duties as therein specified. In this instance the duty was the taking of prisoners to penal institutions. The distance actually traveled by the sheriff in the performance of this duty was the number of miles from the county seat to the institutions in which the prisoners were committed, and return therefrom. It was just as necessary in the performance of this duty for the sheriff to travel one way as the other. It may be, as suggested by the learned counsel for appellant, that ten cents a mile direct is ample compensation for the officer who performs this duty, but that is a legislative and not a judicial question. It is not for the court to say whether the rate of mileage provided in the act is too great or too small. Our inquiry is limited to a consideration of the provisions of the act. It is clear the legislature intended the sheriff to charge mileage at the rate fixed therein for the number of miles actually traveled and necessary in performance of the duty for which he seeks to impose the charge, which means miles circular.

The next point raised is whether the sheriff can charge for hack hire paid by him in conveying the prisoners from the railroad station to the institutions to which they were committed. Here again we must look to the act of assembly. No liability of this character can be placed upon the county without express legislative authority. The act of 1901, provides that the sheriff shall be entitled to charge “ for transportation of each prisoner, six cents per mile in addition to necessary help and expenses.” Under this provision of the act the sheriff can charge six cents per mile for the transportation of each prisoner, and in addition thereto such expenses for help and conveyances as may be found necessary to safely convey the prisoners to their place of confinement. The burden, however, is on the sheriff to affirmatively show that the help employed and the expenses incurred were actually necessary for this purpose. It is contended by the appellant that he failed to do so in this case. The questions in controversy were first raised before the county auditors, who refused to allow the claim of the appellee for these charges. An appeal was taken to the court below from the report of the auditors and a trial by jury followed. The appellant argues that the proceedings were then de novo, and that it was the duty of the appellee to affirmatively make out a prima facie case. This is the proper practice and the rule is correctly stated. The appellee admits the correctness of this position, but insists that the rule was observed in the trial of the action in the court below by agreement and consent of the parties. After the jury was empanelled and before any testimony was taken, counsel for both parties agreed upon most of the material facts involved in the controversy and the method of procedure in the trial of the case. The only question of fact to be considered by the jury after the material facts had been agreed upon was whether the expenses paid for hack hire were necessary. The appellant called the appellee as a witness on cross-examination, and from him elicited the facts relating to the necessity of providing hacks in which to convey the prisoners from the railroad station to the institutions in which they were committed. He testified that the hacks had been hired, the amounts charged in his bill actually paid, and that it was necessaiy to do so in order to safely transport the prisoners. His testimony stands unimpeached, and is sufficient to justify the jury in returning a verdict in his favor. Under the agreement of the parties the case was tried de novo, and the defendant established the necessity by the witness called. No exception having been taken in the court below to this method of procedure, and no injury having been done the appellant by the irregularity complained of, it is not reversible error. ' The. whole case by agreement and consent of the parties was tried upon its merits in the court below and will not now be disturbed.

Judgment affirmed.


source: Caselaw Access Project

author: Mb. Chief Justice Mitchell,

license: Public Domain

text:
    McCloskey, Appellant, v. Snowden.

      Corporations — Foreign corporations — Internal management — Equity — Stockholder’s bill.

    Where an act complained of in a stockholder’s bill-against a corporation affects the complainant only in his capacity as a member of the corporation, whether it be as a stockholder, director, president or other officer, and is the act of the corporation whether acting in stockholders’ meeting, or through its agents, the board of directors, such action is the management of the internal affairs of the corporation, and in case of a foreign corporation the courts of Pennsylvania will not take jurisdiction, and it is immaterial that the visible, tangible property of the corporation is situate within the state.

      Corporations—Stockholder’s bill—Equity—Refusal of corporation to act.

    The right of an individual stockholder to act for the corporation is exceptional, and only arises on a clear showing of special circumstances, among, which inability or unwillingness of the corporation itself, demand upon the regular corporate management, and refusal to act are imperative requisites; and the refusal by the corporate management must appear affirmatively to be a disregard of duty and not an error of judgment, a nonperformance of a manifest official obligation amounting to a breach of trust.
    • Such a bill will be dismissed where the charges of fraud and collusion against the officials and former officials named as defendants are merely inferences from insufficient averments of facts. •
    Argued Jan. 20, 1905.
    Appeal, No. 244, Jan. T., 1904, by plaintiffs, from decree of C. P. No. 1, Phila. Co., Sept. T., 1903, No. 4065, dismissing bill in equity in case of John J. McCloskey and Louis A. Levin v. A. Loudon Snowden et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ. '
    Affirmed.
    Bill in equity for discovery, account and payment.
    The bill, reciting that it was filed by complainants on behalf of themselves and all other stockholders of the Danville Bessemer Company, similarly situated, who might thereafter intervene and become parties, averred :
    1. That each of the complainants was the owner of 200 •shares of stock of the Danville Bessemer Company, on which each had paid the full original par value of $5.00 per share.
    2. That A. Loudon Snowden, Charles A. Porter, Kennedy Crossan and Ludwig S. Filbert promoted and organized the Danville Bessemer Company.
    3. That they caused to be chosen as directors" of the company certain individuals controlled by themselves.
    4. That they- caused the board of directors to pass a resolution authorizing the purchase from Frank Samuel, of the plant of the North Branch Steel Company, for the sum of $600,000; that in point of fact said Samuel was not the owner of the property, but the said promoters had, in anticipation of the purchase of the same by the Danville Bessemer Company, obtained an option on it for a price not exactly known to complainants, but which complainants aver did not exceed the sum of $275,000, and that in furtherance of this scheme a conveyance was procured from the North Branch Steel Company to Samuel for a consideration expressed in the deed as $1.00 and which complainants aver did not exceed $275,000; and upon the same day, by a second deed, the said property was conveyed by Samuel and wife to the Danville Bessemer Company, for the consideration of $600,000, and that the promoters divided among themselves the difference between the consideration paid to the North Branch Steel Company and'the consideration paid by the Danville Bessemer Company.
    5. Averred the death of Ludwig S. Filbert and the grant of letters testamentary to his executors, four of the defendants. '
    6. That complainants had no knowledge of the matters before set forth until within one month prior to the filing of the bill; that they made demand upon the officers and directors of the Danville Bessemer Company, naming them, to cause an action to be brought against the defendants in the bill, with which request the board of directors refused to comply.
    The bill alleged that defendants, or some of them, are officers and directors of the Danville conjpany and holders of a considerable portion of its stock, and are able through themselves and their friends to deprive bona fide stockholders of their rights.
    The bill prayed:
    1. Discovery from the individual defendants as to illegal profits secured by them. 2. An account. 3. Payment of th'e amount due to the Danville Bessemer Company or to a receiver. 4. That if necessary the court would appoint a receiver. 5. General relief.
    The defendant corporation filed an answer to the bill and the individual defendants demurred.
    The case was heard on the demurrers and the bill was dismissed on the ground that it related to the internal management of a foreign corporation, and that the-Pennsylvania court was without jurisdiction.

      Error assigned was decree dismissing the bill.

      Sidney E. Smith and John Douglass Brown, with them Thomas O. Peirce, for appellants.
    The court below had jurisdiction, on the matter in controversy: Hayward v. Leeson, 176 Mass. 310 (57 N. E. Repr. 656); Cent. Trust Co. v. East Tennessee Land Co., 116 Fed. Repr. 743; Cent Trust Co. v. McGeorge, 151 U. S. 129 (14 Sup. Ct. Repr. 286); Ernst v. Rutherford, etc., Gas Co., 38 App. Div. 388 (56 N. Y. Supp. 403); Wineburgh v. U. S. Ry. Adv. Co., 173 Mass. 60 (53 N. E. Repr. 145); Richardson v. Clinton Wall Trunk Mfg. Co., 181 Mass. 580 (64 N. E. Repr. 400); Harding v. American Glucose Co., 182 Ill. 551 (55 N. E. Repr. 577); Kidd v. Traction Co., 72 N. H. 273 (56 Atl. Repr. 465); Bank of Virginia v. Adams, 1 Parsons, 534; Morris v. Stevens, 6 Phila. 488; Lungren v. Pennell, 10 W. N. C. 297; Neal v. Teel Mining Co., 51 Pitts. Leg. Jour. 233; Madden v. Electric Light Co., 181 Pa. 617.
    Many of the authorities hold that no previous demand is necessary when a stockholder’s bill discloses a state of facts which make it obvious that such a demand would have been futile. They all hold that demand and refusal are sufficient to justify the filing of the bill: Wolf v. Penna. R. R. Co., 195 Pa. 91; Treat v. Penna. Mut. Life Ins. Co., 203 Pa. 21; Densmore Oil Co. v. Densmore Co., 64 Pa. 43.

      John 6r. Johnson, with him A. S. L. Shields, for A. Loudon Snowden, Charles A. Porter and Kennedy Crossan, appellees.
    The court had no jurisdiction of the complaint because it was an attempt to control the internal management of a foreign corporation: New Haven Horse Shoe Nail Co. v. Linden Spring Co., 142 Mass. 349 (7 N. E. Repr. 773); Bank of Virginia v. Adams, 1 Parsons, 534; Morris v. Stevens, 6 Phila. 488; Madden v. Electric Light Co., 181 Pa. 617.
    The complainants were not entitled to relief because they had not exhausted their remedies within the corporation : Wolf v. Penna. R. R. Co., 195 Pa. 91.
    The majority of the directors having no connection with the alleged fraud, were entitled to conclude the corporation by their refusal to institute legal proceedings.

      Hampton L. Carson, for Ludwig S. Filbert, appellee.

      Alex. Simpson, Jr., with him Francis ShunJc Brown, for Frank Samuel, appellee.

      May 24, 1905 :
   Opinion by

Mb. Chief Justice Mitchell,

■ This bill is clearly one of interference in the internal management of a foreign corporation, and as such is not distinguishable from Madden v. Electric Light Co., 181 Pa. 617.

The bill sets up a case of fraud against the company which affects the plaintiffs solely in their capacity as stockholders in common with the others. Prima facie the proper party to seek redress for such a wrong is the corporation itself through its governing body, the board of directors. “ The right of an individual stockholder to act for the corporation is exceptional, and only arises on a clear showing of special circumstances, among which inability or unwillingness of the corporation itself, demand upon the regular corporate management, and refusal to act are imperative requisites. And the refusal by the corporate management must appear affirmatively to be a disregard of duty and not an error of judgment; a nonperformance of a manifest official obligation amounting to a breach of trust: ” Wolf v. Penna. R. R. Co., 195 Pa. 91.

The present bill charges that “your orators did make demand upon the present officers and board of directors of the said Danville Bessemer Company, who are, to wit: .... to cause an action to be brought in the name of the said Danville Bessemer Company against the defendants hereinbefore named to compel an accounting by said defendants of the profits made by them in the transaction hereinbefore recited or to authorize your orators to bring such action in the name and on behalf of the said Danville Bessemer Company, but notwithstanding the demand thus made by your orators said board of directors have declined so to do.” But there is nothing in the bill to show breach of trust by the directors, or any acquiescence in fraud on their part. For all that appears it is merely a difference of views and judgment between the complainants as individual or minority stockholders and the constituted board of management of the corporate affairs. Of the nine officials named as the board of directors at the present time, only one is a defendant in the bill, charged as having taken part in the transaction complained of, and the charge against the others is sought to be inferred from the fact that three of them are related or in business connection with some of the promoters; the averment that the first officers who made the purchase complained of were “ none of them persons of independent or substantial interest in the business of the corporation,” but were placed there “simply to do the bidding of said promoters without the exercise of any independent judgment in the matters which should be presented for official and corporate action ; ” and finally that both the first and the present were mere “ dummy boards ” under the control of the promoters defendant. Such averments are wholly insufficient. What is said in Wolf v. Penna. P. R. Co., 195 Pa. 91, is very applicable here. “ Passing by the subordinate questions .... the bill has no substantial foundation of fact to rest upon. It is filled with charges of fraud and collusion but they are charges as inferences from very insufficient averments of facts. If we take out what Chief Justice Gibson called the vituperative epithets there is nothing left but the inference of fraud drawn from the general averment that the officers of the lessor company being elected by the vote of the stock held by tbe lessee are under the latter’s influence.” And again in the same case, “ The defect of this charge is that it does not rest on any acts averred, but on an inference that by reason of the circumstances of their election, the directors will violate their duty and commit a breach of trust. There is no presumption that officers will commit a breach of trust; the charge should rest on some act, affirmative or permissive, manifestly in violation of duty, and manifestly the result of fraud and not of erroneous judgment.”

In Madden v. Electric Light Co., 181 Pa. 617, it was held that “ where the act complained of in a stockholder’s bill against a corporation affects the complainant solely in his capacity as a member of the corporation, whether it be as a stockholder, director, president or other officer, and is the act of the corporation, whether acting in stockholders’ meeting or through its agents, the board of directors, such action is the management of- the internal affairs of the corporation ; and in case of a foreign corporation the courts of Pennsylvania will not take jurisdiction; and it is immaterial that the visible, tangible property of the foreign corporation is situate within the state.” The present bill comes fully within this description.

Decree affirmed.


author: Mb. Justice Brown,

text:
    Hickey v. Solid Steel Casting Company, Appellant.

      Negligence—Mastea' and servant—Railroad siding—Signals—Contributory negligence.

    In an action against a steel company to recover damages for the death of plaintiff’s husband in a chipping shop of the defendant, it appeared that a railroad siding ran through the chipping shop, on which cars were run and loaded. The width of the shop was less than the length of two cars. The siding curved sharply from the entrance to the building, and when cars were standing on it in the chipping shop, cars moving towards the building from the outside were invisible to those in the inside. When two ears were run on the siding the end of the first projected through'a doorway opposite the entrance, and the second was partly outside of the entrance. Unless the two cars on the siding in the chipping shop were sepa^ rated, access across it from one part of the building to another was cut off. That this access might not be interfered with by the cars standing on the siding, it had been the custom from the time the shop was constructed to separate them, leaving a space between them of from two to three feet, to be used as a passageway by the employees. There was testimony to show that this space was kept open by direction of the man in charge of the chipping shop, and was constantly used by the many employees of the defendant. The deceased in passing through the opening was caught between the cars and killed. There was testimony that the eoupling engine approached with no signal by bell or whistle, which might have been heard above the noise of the shop. A witness who saw the deceased approaching the tracks testified that when within four feet of them he stopped. Held, that the question of the defendant’s negligence and the deceased’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Feb. 7, 1905.
    Appeal, No. 307, Jan. T., 1904, by defendant, from judgment of C. P. D’elaware Co., Sept. T., 1903, No. 50, on verdict for plaintiff in case of Mary S. Hickey v. Solid Steel Casting Company.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, J J.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Johnson, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $2,541.25, Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. Roger Fronefield, with him Smithers Lank, for appellant.
    The defendant was not negligent: Ricks v. Flynn, 196 Pa. 263; Velas v. Patton Coal Co., 197 Pa. 380; Rumsey v. D., L. & W. R. R. Co., 151 Pa. 74.
    The deceased assumed the risk of injury in going between the cars : Bemish v. Roberts, 143 Pa. 1; Lineoski v. Susquehanna Coal Co., 157 Pa. 153; Pittsburg, etc., R. R. Co. v. Sentmeyer, 92 Pa. 276; Flicker v. Penn Bridge Co., 197 Pa. 442.
    The deceased was guilty of contributory negligence: Marean v. New York, etc., R. R. Co., 167 Pa. 220; Ash v. Wilmington, etc., R. R. Co., 148 Pa. 133; Fox v. Penna. R. R. Co., 195 Pa. 538; Cisney v. Penna. Sewer Pipe Co., 199 Pa. 519; Collins v. Second Ave. Traction Co., 7 Superior Ct. 318; Nugent v. Traction Co., 181 Pa. 160; Sheehan v. R. R. Co., 166 Pa. 354; Penna. R. R. Co. v. Beale, 73 Pa. 504.

      O. B. Dickinson, with him J. O. Taylor, for appellee.
    The duty of the employer is to furnish a reasonably safe place in which the employees can work: Trainor v. R. R. Co., 137 Pa. 148; Bennett v. Standard Plate Glass Co., 158 Pa. 120; Vorhees v. Lake Shore, etc., Ry. Co., 193 Pa. 115; Vose v. Lancashire, etc., Ry. Co., 2 Hurlst. & N. 728; Weaver v. Iselin, 161 Pa. 386; Butterman v. Construction Co., 206 Pa. 82; Oak Bridge Coal Co. v. Reed, 5 W. N. C. 3; Schall v. Cole, 107 Pa. 1.
    In the present case there was certainly evidence that the defendant had failed in its duty. The question therefore is, was the decedent negligent in using the passageway ? The answer is supplied by the case of Bennett v. Standard Plate Glass Co., 158 Pa. 120.
    May 24, 1905 :
   Opinion by

Mb. Justice Brown,

The husband of the plaintiff was an employee of the Solid Steel Casting Company, which operated a steel casting plant. A railroad siding ran through its chipping shop, on which cars were run and loaded 'from an overhead traveling crane. The width of this shop was less than the length of two cars. The siding curved sharply from the entrance to the building, and when cars were standing on it in the-chipping shop, cars moving towards the building from the outside were invisible to those in the inside. When two cars were run on the siding the end of the first projected through a doorway opposite the entrance, and the second was partly outside of the entrance. Unless the two cars on the siding in the chipping shop were separated, access across it from one part of the building to another was cut off. That this access might not be interfered with by the cars standing on the siding, it had been the custom from the time the shop was constructed to separate them, leaving a space between them of from two to three feet, to be used as a passageway by the employees. There was testimony to show that this space was kept open by direction of the man in charge of the chipping shop and was constantly used by the many employees of the company. On the very day the plaintiff’s husband was killed, Clark, who had charge of the chipping shop, and McAtee, the general superintendent of the company, used it as a passageway.

The negligence of which the appellee complains is that, as this passageway was provided by the appellant for its employees, with a constant invitation to them to use the same as they were compelled to go from one part of its building to another, the company had not properly protected them against danger by some system of warning them of it when the cars were about to be coupled and taken out. There was no danger in using the passageway while the cars were standing still. The danger was that, while passing between them, an engine might come from the outside to push them together, that they might be coupled and taken out of the building. This is what happened when the deceased was crossing the siding: and his life was crushed out as he was caught between the bumpers. The siding, as it left the building, curved sharply, as already stated, and those inside of it could not see the approach of an engine to take the cars’ out, and above the din of the busy place its coming could not be heard. Having provided the passageway between the cars for its employees, the contention of the appellee is that it was the appellant’s duty to see that it was safe for them to pass through it. This could have been readily done by having some one on the lookout for the approach of the engine, and, at its coming, by a proper warning, save, the employees, who could neither see nor hear its approach, from the danger of crossing over. No such precaution had been taken by the appellant, and the question of its negligence in this respect was clearly for the jury. Its duty to its employees was, under the circumstances, to look after their safety and to use proper precautions for it. Drummond, the conductor, who had charge of the train that had backed to the building to take the cars out, testified that he had given warning of its approach, but Hickey, the deceased, was on the other side of the cars, and it does not appear that he heard, or could have heard, any warning that may have been given.

The failure of the appellant to protect its employees from the danger of being injured while passing between the cars by warning them of the approach of the engine to take them out did not relieve the deceased from the duty of exercising proper care himself to avoid peril.- Whether he did so was, under the circumstances, also a question for the jury. That he did not take another route to cross the tracks, instead of attempting to pass over them between the cars through the passageway that had been sanctioned by the company, could not have been declared by the court to be in itself conclusive evidence of his negligence which contributed to his death; and the jury fairly found from the testimony as to his conduct before attempting to pass between the cars that he had not been negligent. A witness who saw him approaching the tracks testified that when within four feet of them he stopped. The cars were standing still and there was no apparent danger before him as he started to cross between them. If he had attempted to do so with any kind of notice that they were about to be coupled, he would have stepped between them at his own risk, and the plaintiff could not recover. But that was not the situation, for there was testimony that the engine approached with no signal by bell or whistle, which might have been heard above the noise of the place.

The single assignment of error—the failure of the court to direct a verdict for the defendant—is, therefore, overruled and the judgment affirmed.


text:
    Bryan v. City of Chester, Appellant.

      Municipalities—Ordinances—Regulation of bill boards—Equity.

    A municipality has no power to enact an ordinance forbidding citizens to erect billboards on their own property merely because such boards are unsightly, or may create a nuisance. Any citizen against whom such an ordinance is sought to be enforced is entitled to the protecton of a court of equity.
    Under the police powers of a municipality it may prohibit the erection of insecure billboards within its limits, prevent the exhibition from secure ones of immoral or indecent advertisements or pictures, and protect the community from any actual nuisance resulting from the use of them, but it can go no further.
    All statutory restrictions of the use of property are imposed upon the theory that they are necessary for the safety, health, or comfort of the public, but a limitation without reason or necessity cannot be enforced.
    Argued Feb. 7, 1905.
    Appeal, No. 379, Jan. T., 1904, by defendants, from decree of C. P. Delaware Co., Sept. T., 1904, No. 142, on bill in equity in ease of Eugene H. Bryan v. City of Chester, H. H. Houston, mayor, William Leary, chief of police, Robert Smith, alderman, and James Mullen, police officer.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an injunction to restrain interference with a billboard. Before Johnson, P. J.
    On December 1, 1903, the city of Chester passed an ordinance, section 1 of which is as follows : “ It shall be unlawful for any person, firm, corporation or company to erect and construct within the city limits any show, bill, advertising or other board or structures for the purpose of painting, pasting, posting or otherwise putting and placing thereon any advertisement, sign, notice or show bill of any nature or kind whatsoever, or to use any present fence and structure for such purposes, provided that the provisions hereof shall not apply to any sign or advertisement in front of and at any church, theatre, place of amusement, store, office or place of business, which may remain or be put up and placed under existing laws and ordinances, and provided further that it does not extend to any show, bill or advertisment boards now in existence and in use in the city.”

      The plaintiff’s bill alleged that he is the lessee of certain lots in the city of Chester, upon which he desires to erect billboards of galvanized iron, built on substantial timber in a safe and workmanlike manner, and that he has been interfered with by the officers of the city of Chester and prevented from making said erection.
    He alleged that the said ordinance is illegal, unreasonable and unjust, and prays the court to enjoin the city of Chester and its officers from interfering with him in the erection of billboards on his own land and to declare the said ordinance void.
    To this bill the defendant demurred.
    The court overruled the demurrer, and entered a decree in accordance with a prayer of the bill.

      Error assigned was the decree of the court.

      A. A. Cochran, for appellants.
    While equity courts will intervene where there is likely to be irreparable injury or a multiplicity of suits, they will not interfere by injunction to restrain a criminal prosecution, whether the prosecution be for violation of statutes, or for an infraction of municipal ordinances : In re Sawyer, 124 U. S. 200 (8 Sup. Ct. Repr. 482); Rogers v. Cincinnati, 5 McLean (U. S.), 337; Poyer v. Village of Des Plaines, 123 Ill. 111 (13 N. E. Repr. 819): Gartside v. East St. Louis, 43 Ill. 47; McLaughlin v. Jones, 3 W. N. C. 203; Marvin Safe Co. v. N. Y., 38 Hun, 146; Schwab v. City of Madison, 49 Ind. 329; Chisholm v. Adams, 71 Tex. 678 (10 S. W. Repr. 336).
    Neither will an injunction issue to restrain the enforcement of an ordinance on the ground that it is unreasonable and oppressive, there being in such case an adequate remedy at law: Field v. Village of Western Springs, 181 Ill. 186 (54 N. E. Repr. 929); City of Denver v. Beede, 25 Colo. 172 (54 Pac. Repr. 624).
    Police ordinances are such as conduce to the promotion of comfort, safety, health, convenience and general welfare of the public: Wice v. Chicago, etc., Ry. Co., 193 Ill. 351 (61 N. E. Repr. 1084).
    No limit or measure can be applied to this class of municipal prohibition, and. generally it rests in the legislative discretion and judgment of councils : City of New Orleans v. Graffina, 52 La. Ann. 1082 (27 So. Repr. 590); Brooklyn v. Nassau Electric R. R. Co., 61 N. Y. Supp. 33; Cartwright v. Board of Health, 56 N. Y. Supp. 731; Chicago v. Stratton, 162 Ill. 494 (44 N. E. Repr. 853); Wettengel v. Denver, 20 Colo. 552 (39 Pac. Repr. 343); Phila. v. Brabender, 201 Pa. 574.
    In City of Rochester v. West, 53 N. Y. Supp. 1101, an ordinance was upheld which prohibited the erection of billboards beyond a given height, without the permission of council.

      John E. McDonough, for appellee.
    The reasonable enjoyment of one’s vested real estate is certainly a vested right which cannot be interfered with or limited arbitrarily: Crawford v. City of Topeka, 51 Kansas, 756 (33 Pac. Repr. 476); Yates v. Milwaukee, 77 U. S. 497; People v. Green, 85 App. Div. 400 (83 N. Y. Supp. 460).
    If the foregoing is the law, there is no doubt that the city of Chester is without authority to pass the ordinance complained of: Commissioners, etc., v. Gas Co., 12 Pa. 318; Kneedler v. Norristown Boro., 100 Pa. 368; Millerstown Boro. v. Bell, 123 Pa. 151.
    If the city had the right to enact such an ordinance, it is invalid because of its discriminating features: Soon Hing v. Crowley, 113 U. S. 703 (5 Sup. Ct. Repr. 730); Philadelphia v. Brabender, 201 Pa. 574; Chicago v. The Gunning System, 114 Ill. App. 377; Bill Posting Sign Co. v. Atlantic City, 58 Atl. Repr. 342.
    Equity has jurisdiction: Hamzell v. Allegheny, 50 Pitts. Legal Jour. 313; Pittsburg, etc., Street Ry. Co. v. Monongahela City, 50 Pitts. Legal Jour. 275; Seltzer v. Electric Co., 199 Pa. 100; Penna. R. R. v. Lilly Borough, 207 Pa. 180.
    May 24, 1905:
   Opinion by

Mb. Justice Brown,

Under the police powers of a municipality it may prohibit the erection of insecure billboards within its limits, prevent the exhibition from secure ones of-immoral or indecent advertisements or pictures and protect the community from any actual nuisance resulting from the use of them. But this is not what the city of Chester attempted to do by its ordinance of December 1, 1903.

There is a recital in the preamble of the ordinance that, in the sense of councils, showbills and advertising boards are unsightly, and very often are either a nuisance or create one; and thereupon those bodies ordained that in the future no additional boards shall be erected or constructed within tbe city limits, but permitting those already constructed and used to continue for the purpose of advertising. To say nothing of this inconsistent discrimination, the ordinance means that though, as a matter of fact, a billboard may not be unsightly to the eyes of any other person than those of the members of councils, and may not be a nuisance nor create one, and the advertisements on it may neither shock nor offend public decency, an owner of private property cannot erect one on his land. This is a gross attempt at interference with the lawful use of private property, and the learned judge below properly declared the ordinance void in concisely saying: “ I know of no principle upon which it can be sustained. It is not a police regulation, nor for the preservation of health or the abatement or prevention of a nuisance, nor is it a fence or fire regulation.” To this we do not feel called upon to add anything, contenting ourselves with quoting the following from Crawford v. City of Topeka, 51 Kansas, 756: “ All statutory restrictions of the use of property are imposed upon the theory that they are necessary for the safety, health or comfort of the public; but a limitation without reason or necessity cannot be enforced. In what way can the erection of a safe structure for advertising purposes, near the front of a lot, endanger public safety any more than a like structure for some other lawful purpose?.....Al-

though the police power is a broad one', it is not without limitation, and a secure structure which is not an infringement upon the public safety, and is not a nuisance, cannot be made one by legislative fiat, and then prohibited : Yates v. Milwaukee, 10 Wall. 497; 1 Dill, on Munc. Corp. sec. 374. It is doubtless within the power of .the city to prohibit the erection of insecure billboards or other structures, require the o'wners to maintain them in a secure condition, and to provide for their removal at the expense of the owners in case they become dangerous. Perhaps regulations may be made with reference to the manner of construction so as to insure safety, but the prohibition of the erection of structures upon the lot line, however safe they might be, would be an unwarranted invasion of private right.”

Under the facts set forth in the bill there can be no doubt that this proceeding was properly instituted by the appellee. The decree of the court overruling the demurrer and directing the injunction to issue, is affirmed at appellants’ costs.


author: Mb. Justice Bbown,

text:
    Miller v. Henderson.

      Mandamus—Ministerial duty—Refusal to perform, duty—Will—Register of loills—Probate.

    To compel performance of ministerial duties by public officers mandamus is the appropriate remedy, but it cannot be invoked until there has been a refusal to perform such duties; and the refusal must clearly appear.
    Where the register of wills has admitted a will to probate and a contest has arisen between the executor named in the will alleged to be mentally incompetent and another person who has applied for letters of administration with the will annexed, and both parties have arranged for a hearing before the register, the executor cannot before the hearing and before the register has actually refused to issue letters, maintain a mandamus to compel the issue of letters to him.
    Argued Feb. 28, 1905.
    Appeal, No. 41, Oct. T., 1905, by Martha A. Shirley, from order of C. P. Armstrong Co., Dec. T., 1904, No. 169, directing issue of peremptory mandamus in case of John W. Miller v. Harry B. Henderson, register of wills.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Reversed.
    Petition for mandamus. Before Patton, P. J.
    Tlie facts are stated in the opinion of the Supreme Court.

      Error assigned was order awarding mandamus.

      William J. Christy, of McCain $ Christy, for appellant.
    Inasmuch as an appeal may be taken from the decision of the register granting or refusing letters testamentary, it would seem that the official act is therefore a judicial determination of the question, involving the sound judgment of the register; Shoenberger v. Lancaster Savings Institution, 28 Pa. 459.

      Mandamus will lie to compel the performance, by public officers, of duties purely ministerial in their character; but as to all acts and duties necessarily calling for the exercise of judgment and discretion on their part, mandamus will not lie : Dechert v. Com., 113 Pa. 229.
    The writ of mandamus ought not to have been granted under the facts and circumstances surrounding this case. As authority for the above statement we cite : Commonwealth v. Thomas, 163 Pa. 446.

      R. L. Ralston, with him Galvin Rayburn, for appellee.
    The register is bound to issue letters to the person named as executor in the will: Bowman’s App., 62 Pa. 166; Sill v. McKnight, 7 W. & S. 244; Com. v. Bunn, 71 Pa. 405; Taylor v. Com., 103 Pa. 96; Pomeroy’s App., 24 W. N. C. 296.
    May 24, 1905:
   Opinion by

Mb. Justice Bbown,

Robert Miller died July 7, 1904. His will, executed September 21, 1894, was admitted to probate by the register of wills of Armstrong county, July 28,1904. The testator named a nephew, John W. Miller, the appellee, as executor, but at the time of the probate of the will he was in confinement in the hospital for the insane at Dixmont, having been committed to that institution by the court of quarter sessions of Armstrong county on April 15, 1904, under the provisions of the Act of assembly of April 20, 1869, 'P. L. 78. He had not been adjudged a lunatic, but, on the finding of a commission that his case was one suitable for confinement, he was committed to tbe institution. In this situation certain of the residuary legatees of the testator, among them Martha A. Shirley, the appellant, appeared before the register and applied for letters of administrator cum testamento annexo, and that officer appointed Isabella Ralston and the appellant administratrices, but letters were not issued to them for the reason that the former refused to act as coadministratrix with the latter. The register subsequently announced that he would issue letters to the appellant alone, but recalled this on receipt of notice that John W. Miller, the executor named in the will, was about to make application for his release from confinement. On September 24, 1904, the court of quarter sessions ordered his discharge from the hospital, and on September 29, five days later, he appeared before the register and demanded letters testamentary on the will of his uncle. Notice was then served on the appellant of this application of Miller, and the register, with the consent of herself and Miller, fixed a day to take testimony as to the fitness of the latter to act as executor. Testimony was submitted on each side at different times, and on November 1, 1904, there was a continuance to-November 9, 1904, Miller agreeing that on that day he would close his testimony in support of his application for letters. Instead of proceeding before the register on that day he presented his petition to the court of common pleas of the county, asking for a writ of mandamus to compel the register to issue the letters to him. The alternative writ was directed to be issued, and was served on the register at the very time the appellee had agreed to appear before him and close his case. To the alternative writ a return was made by the appellant, who was given leave to intervene, and on the appellee’s demurrer to her return the peremptory writ was directed to issue.

With the foregoing facts before it, the court below was of the opinion that the petitioner for the writ of mandamus was entitled to it, because it was to enforce the performance of a purely ministerial act by the register. The language of the learned judge is: “As we view this case when the last will and testament of Robert Miller was propounded before II. B. Henderson, register of wills, and he admitted it to probate, it was a judicial .decision by him that it was genuine, that it was regular in form and execution, that the testator was competent to make it, and that he had appointed John W. Miller his executor, and that said document should be duly entered upon the records. The admission of the will to probate was in effect appointing John W. Miller executor of the instrument thus probated. The proof of the authority of the executor to act as such, is a production of a copy of the will by which he is appointed, certified under the seal of the ordinary. This is usually called the probate: Bouvier’s Law Die., Title Probate of Wills. ‘If the execution of the will be properly proved, the register is bound to issue letters testamentary to the executor named therein, unless disqualified by minority. He is the appointee of the testator, not of the register, and the latter has no discretion in the matter:’. Will’ of Wm. Neal, 17 W. N. C. 191. ‘With the probate of the will the register’s judicial powers cease:’ Mathews v. Biddell, 8 Pa. Superior Ct. 112. ‘The register of wills performs the full measure of his duty when he requires the production of the will for probate: ’ Estate of Sarah Nichols, 8 Pa. Superior Ct. 484. Therefore, as we view it, when the register admitted the will to probate, and registered it in his office, he appointed, ipso facto, John W. Miller executor, and nothing further remained to be done by him except to give Miller a certificate of his appointment, so that Miller could show his authority to act as executor, to those who might question it. Hence, the register had no power or jurisdiction, after he had admitted the will to probate, to inquire whether or not said John W.'Miller was sane or insane, fit or unfit, to perform the duties of executor. There is no act of assembly authorizing any such hearing or trial before the register, and he would be without power to enforce any decree dismissing John W. Miller as executor or appointing Martha A. Shirley admx. c. t. a. In our opinion the entire proceedings before the register, after the probate of the will, and directing it to -be registered, were without jurisdiction and void.”

Even if the foregoing view was a correct one, the real question before the court below and now before us is : Ought the writ to have gone out against the register under the facts disclosed ? To compel performance of ministerial duties by public officers, mandamus is the appropriate remedy, but it cannot be invoiced until there has been a refusal to perform such duties; and the refusal must clearly appear: Commonwealth v. Cochran, 1 S. & R. 473. The averment in the return to the alternative writ is that the register never absolutely refused to issue letters testamentary to the appellee. On the contrary, by the demurrer, it is admitted that, by the agreement of the appellee himself, proceedings were going on before the register to enable him to pass intelligently upon the petition for letters testamentary at the very time the petitioner applied for the mandamus. The letters ap_ plied for may be issued to the appellee, as is also admitted by the demurrer. The case as presented is not one of a refusal to perform an alleged ministerial duty, but is that of a public officer, who, having before him a petition to perform it, which, with the consent of the petitioner, he was considering, and, while so considering, was served with the mandatory writ directing him to do what he had never refused to do. The writ should have been denied for the reason that it did not appear that the respondent had refused to perform what the appellee alleged was a ministerial duty owed to him.

The register may issue letters testamentary to the appellee when free to act, after the disposition of this appeal. If he should refuse them and improperly award letters of administration to another, the orphans’ court, on an appeal, can correct any wrong that may be done; but the question of the appellee’s remedy for such wrong is not now before us. The order of the court below, directing the writ of peremptory mandamus to issue, is vacated and set aside and the petition for the writ is dismissed, the costs below and on this appeal to be paid by the appellee.


author: Mr. Justice Brown,

text:
    McManus’s Estate.

      Executors and administrators—Joint executors—Trust company—Renunciation.

    A trust company which has been appointed an executor of a will jointly with one of the children of the testatrix, is justified in refusing a request made to it by the testatrix’s children and residuaiy legatees to renounce its executorship.
    Where a son of testatrix and a trust company have been appointed executors, and the son has proceeded with the appraisement and distribution of the estate to the entire exclusion of his coexecutor, the trust company may compel the son to file an account, not only that it may be protected against citation from unknown creditors, but also that it may have an opportunity to present its claim against the estate for commissions, expenses incurred and counsel fees. Wickersham’s App., 64 Pa. 67, distinguished.
    Argued Feb. 28, 1905.
    Appeal, No. 332, Jan. T., 1904, by Reading Trust Company, Executor of Caroline McManus, deceased, from decree of O. C. Berks Co., dismissing petition for citation to account in Estate of Caroline McManus, deceased.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat and Elkin, JJ.
    Reversed.

      Petition for citation. Before Bland, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the petition.

      Isaac Hiester, for appellant.
    The appellant cannot be required to assume the risk of distribution out of court nor the burden of excusing want of assets in its hands in case of a citation from an unknown creditor, but is entitled to the absolute protection of a decree of distribution: J ones’s App., 99 Pa. 124.
    The appellant has incurred expenses and liability for counsel fees in the performance of its duties as executor and is entitled to have these claims considered by the court and payment decreed out of the estate: Yeakel’s Est., 30 Pa. C. C. Rep. 282.

      Cyms Q-. Derr, for appellee.
    The rule is that each executor has power to execute .the will; that he may himself administer the assets coming into his hands, file a separate appraisement and a separate account, which is just what the appellee in this case did : Lafferty’s Est., 184 Pa. 502; Packer v. Owens, 164 Pa. 185; Hengst’s App., 24 Pa. 413; DeHaven v. Williams, 80 Pa. 480; Irwin’s App., 35 Pa. 294; Boyd v. Boyd, 1 Watts, 365.
    If the appellant was entitled to any part of the said compensation, its remedy was an ordinary action of law : Wickersham’s Appeal, 64 Pa. 67.
    May 24, 1905 :
   Opinion by

Mr. Justice Brown,

Caroline McManus died September 4, 1903. To her will, executed November 9, 1885, she added five codicils. By the first, dated January 31, 1888, she appointed the Reading Trust Company, the appellant, her executor, and by the second, dated January 27, 1889, she named her son, Francis P. McManus, coexecutor with it. Five days after her death the following note was addressed to the trust company :

“ Reading, Pa., Sept. 9, 1903.

“ To The Reading Trust Company,

“ Dear Sirs : The late Caroline McManus left a will in which her son Francis P. McManus and The Reading Trust Company are named as executors. The will was made many years ago, and while the undersigned, being all the children and residuary legatees under the same, recognize the high standing of your company and its entire fitness to execute any trust, yet it is desirable to the parties that both the executors named in the will shall renounce so that letters of administration with the will annexed, may be issued in accordance with the wishes and interests of the family. We therefore respectfully ask that you further the family wishes by formally renouncing the executorship.

“Very respectfully yours,

“ Catharine Archer,

“ Martha McManus, “Joseph McManus, “Francis P. McManus.”

To this a reply was sent that the company declined to accede to the request. On September 18, 1903, the will and codicils of the decedent were admitted to probate and letters testamentary issued to the two executors named. On September 24, tire trust company notified Francis P. McManus that it had duly qualified as executor and was ready and desirous to co-operate with him in advertising the issue of letters testamentary, in making an inventory and appraisement and in performing the other duties devolving upon them as executors. Without notifying the trust company of his intention to do so, the appellee appointed appraisers, had the personal estate of the decedent appraised and filed an inventory in the office of the register on October 5, 1903. On October 24, 1903, the trust company presented its petition to the court below alleging that its coexecutor had taken exclusive possession of all the assets of the estate, had afforded it no access thereto nor inspection thereof, had made an inventory without giving it any opportunity to attend, had appointed appraisers and caused .an appraisement to be taken and filed, had wholly excluded it from any participation in the proceedings to appraise the assets and had asserted his purpose of proceeding to administer the estate to its entire exclusion ; and the prayer was for his removal.

To the petition for the removal of the appellee as one of the executors an answer was filed, and, after testimony had been taken by the petitioner and respondent and the case submitted to the court for its decision, it was requested not to dispose of the matter at that time, as negotiations were pending for an adjustment of the differences between the executors. Shortly thereafter the learned, president judge became i'll and was unable from February, 1904, to the following September to attend to .the duties of his office. On September 20, 1904, the appellee filed a second supplemental answer, in which he averred that, a year having expired since the granting of the letters, he had paid the pecuniary legacies given in the will of the testatrix, and, pursuant to a family arrangement between all the residuary legatees and parties in interest, all the personal property, moneys and securities of the estate had been divided in accordance with the provisions of the will of the testatrix, and that all of her debts -and claims against her estate had been paid in full. On September 29 a supplemental petition was presented by the appellant, asking for an order and decree that the appellee forthwith file an account of his acts and doings in the premises, “ in order that the same may be duly advertised and that a proper decree of distribution may be made, considering and allowing all just claims that may be presented against the estate, and particularly considering and allowing the claim of your petitioner for such compensation as under the circumstances your petitioner is justly entitled to receive and reimbursing your petitioner for the costs, counsel fees and expenses expended and incurred in and about its said executorship.” To this an answer was filed, in which the appellee averred that there had been executed to him proper releases from all parties interested in the estate of his mother as beneficiaries or residuary legatees.

In view of the suspension of the proceedings below for nearly a year, during which time the appellee, as one of the executors, paid, as he alleges, all the debts of the decedent and made distribution among the legatees, from whom he received proper releases, we do not now deem it necessary to decide whether he ought to have been removed if the court had promptly disposed of the petition for his removal, and shall, therefore, pass only upon the question as to whether he should be compelled to file an account at the instance of his coexecutor.

Before passing upon this question, it is proper for us to say that the appellant’s refusal to renounce its right to letters testamentary on the estate of the deceased, when requested so to do by her children and residuary legatees, is to be commended. Their request is termed a reasonable one by the learned counsel for the appellee. It was unreasonable and inconsistent with proper respect for the memory of the testatrix by her children and beneficiaries. She had not seen fit to make her children her executors, and after naming but one of them as an executor, she joined the appellant with him, manifestly because she was unwilling that the settlement of her estate should be committed to him alone. When, upon the probate of the will, the appellant learned, if it did not know before, that it had been named as one of the executors, it properly recognized what it felt to be a duty which it owed to the deceased and which it' assumed by taking out letters testamentary. Unless it had agreed with the deceased that it would act as one of her executors, and, in reliance upon its promise to do so, she had appointed it, it might for any good reason have declined to act Avithout inviting criticism; but it certainly ought not to have done so for the reason given in the letter addressed to it requesting its renunciation. It is a trust company, not a private individual, and one of its corporate purposes, known to the public, is to act as executor, and, when named as such, a worse reason why it should refuse to act can hardly be conceived than that the children of a testator, to whom he was unwilling to commit the administration of his estate, are opposed to the executor named by him and wish to take the settlement of the estate into their own hands. This is just the situation here, and the example of the appellant’s refusal can well be followed whenever the same reason is given to a trust company why it should not act as executor or trustee.

In refusing to require the appellee to file an account, the court was of the opinion that, as he had authority as one of the executors to pay all of the debts of the estate out of the assets in his hands and to make distribution among the legatees, the appellant had no standing to ask for an account from him after he had thus settled the estate himself. In support of this vieAv the learned president judge of the orphans’ court cited DeHaven v. Williams, 80 Pa. 480; Wood’s Appeal, 92 Pa. 379, and Willson’s Appeal, 115 Pa. 95. In these cases the question was as to the effect of the act of one executor upon his co-executors and the estate they represented. But that is not the question here, and the cases cited have no bearing on it. What the appellant asks us to say is, that as executor it has certain lights as against its coexecutor, who owes it certain duties. When it accepted letters testamentary and qualified as one of the executors, its rights as the personal representative of the deceased in the settlement of her estate were no less than those of the appellee. If he took into his own hands all of the assets and utterly excluded his coexecutor from any participation in the settlement of the estate, it has a right now to know from him that his stewardship has been so discharged that no further accountability rests upon it; and it has a right to know this by a decree of the court after passing upon the account of the sole stewardship. In no other way.can it be known to a certainty what it is its right to know. The appellee says that he has paid all of the debts of the decedent, and the court has so found in this proceeding. What may have been found in the controversy between these two executors could affect no unknown creditors, and, if there be such, the appellant is entitled to jirotection against citation from them, to be afforded it by the appellee’s pursuing the usual and ordinary course of filing an account, an adjudication of which will protect both the executors.

And, for another reason, the appellee ought to file an account. Appellant asks for it in the words of its petition, “ in order that the same may be duly advertised and that a proper decree of distribution may be made considering and allowing all just claims that may be presented against the estate and particularly considering and allowing the claim of your petitioner for such compensation as under the circumstances your petitioner is justly entitled to receive and reimbursing your petitioner for the costs, counsel fees and expenses expended and incurred in and about its said executorship.”

There is no denial in the answer that the appellant is entitled to compensation, nor that it has incurred costs and is liable for counsel fees to be paid by the estate. Such costs and counsel fees are for the consideration of the court and for its allowance of them on an adjudication of the account of the executor having all the funds of the estate in his hands. The contention of the appellant, that it ought to be allowed to present its claim for consideration on the court’s adjudication of the account is dismissed for the reason that its remedy is by a suit on the common law side of the court to recover from its coexecutor its proper share of the commissions in his hands, and Wickersham’s Appeal, 64 Pa. 67 is referred to in support of this. In that case one executor had filed an account, in which he took credit for commissions, and, after the absolute comfirmation of the account, it was held that a claim for one-half of what the accounting executor had taken for himself from the estate was not a claim against the estate, but against him as an individual, and it was not for the orphans’ court to pass upon the claim as one against the estate, of the decedent. Thompson, J., makes this entirely clear and at the same time says : “ I will not say that the orphans’ court might not apportion the commission's allowed between coexecutors and administrators.” The appellant is making no claim in the orphans’ court for a portion of the commissions which its coexecutor has taken for himself. Its petition is that it may be allowed to present its claim against the estate for commissions, expenses incurred and counsel fees. These, as claims against the estate, are for the orphans’ court to pass upon. This is the clear distinction between Wickersham’s Estate, infra, and the present case, manifestly overlooked by the learned court below.

The decree of the orphans’ court, dismissing the petition for an order and decree that the appellee file an account, is reversed, and the record is remitted with direction that the said court do order and decree that Francis P. McManus, the appellee, file within thirty days his account as executor of the estate of Caroline McManus, deceased, the costs in the proceedings below and on this appeal to be paid by him.


author: Mr. Justice Elkin,

text:
    Grossman, Appellant, v. Thunder.

      Decedents’ estates—Claim, for services—Extra services—Evidence—Contract.

    A domestic and nurse in the home of a decedent, who has received fixed wages for her services as such, cannot recover in an action against the executor of the decedent for alleged extra services in the absence of an express contract to that effect, or an agreement to provide for such compensation by a legacy. Every "intendment should be taken most strongly against the validity of such a claim.
    Loose declarations made to outside parties, indefinite understandings, suggested gratuities, anticipated benefactions and testamentary intentions not carried out, about which there may be some vague and unconvincing testimony, are not sufficient to establish an express contract, either’ to pay for the extra services at the death of the testatrix or to provide for such compensation by a legacy.
    Argued May 16, 1905.
    Appeal, No. 248, Jau. T., 1904, by plaintiff, from judgment of O. P. Lancaster Co., Jan. T., 1902, No. 6, on verdict for defendant in case of Anna Grossman v. Mary Forney Thunder, executrix of Susan C. Forney, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for services. Before Hassler, J.
    The court charged as follows:
    The action is one to recover for services on an express contract, as well as on a quantum meruit, which services were rendered to Susan C. Forney by the plaintiff up to and prior to November 12, 1901. On that day the plaintiff signed a receipt which reads as follows:
    “November 12, 1901.
    “ Í, Annie Grossman, of the city of Lancaster, Pa., being in the employ of Miss Susan C. Forney up to this date, do hereby acknowledge that I received full pay and compensation for all services, labor, care and attention that T have given unto said Miss Susan C. Forney, and I have no claim against her or her estate for any services whatsoever, acknowledging payment in full by this receipt. Witness my hand the day and year aforesaid.” Signed Anna Grossman, and witnessed by Mary L. Wiley and Tillie May Forney.

      While a receipt for money paid is prima facie evidence of its payment, it is not conclusive and can be explained. It can be explained or be impeached by parol testimony.
    When, however, parol testimony tending to impeach such a receipt, is so evenly balanced by contradictory evidence of like character, as it is in this case, the receipt must control and cannot be set aside.
    The receipt which the plaintiff signed appeared upon its face to be in full for all services, labor, care and attention given to Miss Susan C. Forney; and that she, the plaintiff, had no further claim against the said Susan C. Forney or her estate for any services whatsoever.
    There was no ambiguity in its terms. There is no evidence that there was anything included in the receipt through a mistake, or through fraud or accident. Four of the six witnesses who were present when it was signed, including the plaintiff herself, have testified in the case. Two of them say it was read to her before she signed it, and that she understood what it contained. Another of the four witnesses, a sister of plaintiff, says it was read after it was signed. No objection, however, seems to have been made to it at that time, and its terms are very clear in covering just what the plaintiff is attempting to recover in this action.
    The contention that the claim was not to be paid until after testatrix’s death, cannot avail, for the reason that the services were rendered, and this receipt says it is in full for all services rendered to testatrix to date, and that she, the plaintiff, had no further claim against Susan C. Forney or her estate for any services whatsoever. '
    It is true that the plaintiff says at the time she signed the receipt, she asked if this would interfere with any other claim for money she was to get at the death of testatrix, and was told by Mrs. Thunder that she did not think so, but that she would have to ask Mr. Weigley about it.
    This could not have been an inducement for her to sign the paper, as it is not even contended that she was told this did not interfere with any other claim she might have.
    Her sister says she asked this same question and was given the same answer by Mrs. Thunder that she would have to ask a Mr. Weigley. The others, Miss Forney and Mrs. Thunder, present at the time, say no such question was asked. One of these witnesses, Miss Forney, says the paper was read to her and she understood it. She certainly could have understood that it was to cover all claims for wages, care, attention or services, for the terms are very plain and clear. If she was told that it would not affect any claim for what plaintiff is attempting to recover in this action, and was thus led to sign it through this representation, it would have been a fraud practiced upon her, and the receipt would have been treated as a nullity so far as this action is concerned. The evidence of such fraud, however, must be clear, precise and indubitable. We do not think the testimony in this case meets these requirements.
    There was a consideration for the receipt in the payment of all the money which plaintiff then said was due her.
    If a written paper can be thus changed by oral testimony, we cannot conceive of any writing which cannot be brushed aside by the mere oath of interested witnesses, with no circumstances of corroboration and in the face of flatly contradictory testimony.
    We do not feel justified on this testimony in reforming the receipt so as to make it mean something different from the clear meaning of the words which it contains, and we therefore must affirm the second point submitted by defendant and instruct you to find a verdict for defendant.

      Error assigned was in giving binding instructions for defendant.

      William H. Keller, with him John A. Coyle, for appellant.
    The value of services to a person who is suffering from a loathsome disease cannot be measured by the compensation given to a domestic servant: McDonough’s Estate, 6 Pa. C. C. Rep. 527.
    The case of Harrington v. Hickman, 148 Pa. 401, is very much like this case, not only as to the payment of wages for domestic service, but also as to the time and manner of payment for her extra care and attention: Currey’s Est., 26 Pa. Superior Ct. 479.
    A mere informal receipt, although stated to be in full, is not conclusive, but is susceptible of explanation: Girard Fire & Marine Ins. Co. v. Canan, 195 Pa. 589; Keim v. Kaufman, 4 Pa. Dist. Rep. 234; Horton’s App., 38 Pa. 294; Batdorf v. Albert, 59 Pa. 59.

      W. U. Hensel, for appellee.
    The instructions of the court were proper: Ogden v. Traction Co., 202 Pa. 480; Cook’s Estate, 2 Pa. Dist. Rep. 193; Miller’s Est., 136 Pa. 239; Pollock v. Ray, 85 Pa. 428; Thompson v. Stevens, 71 Pa. 161; Neal v. Gilmore, 79 Pa. 421; King’s Estate, 150 Pa. 143; Wojciechowski v. Spreckels’ Sugar Refining Co., 177 Pa. 57; Laird v. Union Traction Co., 208 Pa. 574; Guhl v. Frank, 22 Pa. Superior Ct. 531; Piersol’s Est., 27 Pa. Superior Ct. 204.
    May 22, 1905:
   Opinion by

Mr. Justice Elkin,

We have carefully examined and considered the testimony in this case, the charge of the learned court below, the opinion refusing a new trial, and the very excellent argument of counsel for appellant as well as appellee, but do not discover any reversible error in instructing the jury to find a verdict in favor of the defendant. This belongs to a class of cases in which the courts have frequently said every intendment should be most strongly taken against the validity of the claim. The learned trial judge, in discussing the question whether a contract had been entered into between the parties, said: “There is no evidence of any liability here that could not be released upon the payment of what the plaintiff claimed was actually due. There is no proof of any contract. Plaintiff was paid $2.00 a week, and after the services became onerous was paid $3.00 a week. The burden was on her to show that this was not a payment for everything. she did. Testatrix might have promised, because of her gratitude to the plaintiff, to give her extra compensation in the shape of á legacy, but there was no obligation on the testatrix to give this legacy, the plaintiff taking her chances, if the amount paid per week was in full of her services, and in the absence of proof to the contrary we must assume it was. There was no evidence that the amount paid per week was not in full payment of her services, and we are satisfied that a receipt upon payment of the amount claimed was sufficient consideration for the release of any such doubtful claim as this, which rested solely in expressions of gratitude by the testatrix.” All of which is justified by the evidence.

■ To sustain this claim, the burden was on the appellant to show by proof of the most indubitable character, not only that the receipt was not intended to cover all compensation, but that there was a contract entered into to pay for extra services not included in her ordinary employment for which she admit" tedly received the amount of wages agreed to be paid her. This receipt, entirely independent of the question whether or not it was an absolute bar to a recovery, is strongly persuasive that the alleged contract relied upon by appellant was not entered into by the parties. The appellant, a domestic and nurse in the home of the testatrix, having received fixed wages for her services as such, cannot recover in this action for alleged extra services in the absence of an express contract to that effect or an agreement to provide for such compensation by a legacy. The evidence is not sufficient to support either contention. Loose declarations made to outside parties, indefinite understandings, suggested gratuities, anticipated benefactions and testamentary intentions not carried out, about which there is some vague and unconvincing testimony, are not sufficient to establish an express contract, either to pay for the extra services at the death of the testatrix, or to provide for such compensation by a legacy.. There is no evidence that the appellant agreed to remain with the testatrix and accept the terms of what she now alleges to be a contract. All of these declarations, as well as of the acts of the parties, indicate that the appellant was willing to accept the fixed wages she was receiving from week to week and take her chances of becoming a beneficiary in the will of the testatrix. We are not convinced that anything more was intended by the parties, nor that any contract was entered into upon which this action can be sustained. This being our view of the case, it is unnecessary to discuss the question of the receipt being a bar to this claim.

Judgment affirmed.