text:
    Trexler v. Reynolds, Appellant.

      Contract — Partnership—Dissolution agreement — Construction—Setoff —Evidence.

    1. Where in a proceeding on a judgment bond an issue is framed to determine what personal property, if any, was removed from partnership real estate in violation of a dissolution agreement, and it appears that the plaintiffs and defendant had been members of a general partnership engaged in farming and stock raising on a certain farm, that the plaintiffs were also members of a limited partnership which was carrying on its business of stave making upon the same property under a written agreement with the first firm; that in pursuance of a desire to dissolve the partnership an agreement was executed by the plaintiffs and defendant, “trading and doing business” under the general partnership name conveying to the defendant the farm and “All their right, title and interest in and to all the personal property upon the said lands, and all the right, title and interest in and to all other personal property owned by the said firm” and that as part of the settlement the defendant gave the judgment bond in question, the defendant is precluded from setting up as a defense pro tanto to the payment of the bond the value of personal property admittedly belonging to the limited partnership which the plaintiffs had removed from the premises.
    2. In such a case the dissolution agreement is properly construed as relating only to the plaintiff’s interest in the personal property of the general partnership of which defendant was a member, and not to their interest in the personal property of the limited partnership.
    Argued April 11, 1911.
    Appeal, No. 292, Jan. T., 1910, by defendant, from judgment of C. P. Huntingdon County, Dec. T., 1905, No. 172, on verdict for plaintiffs in case of J. F. Trexler and J. L. Trexler v. H. P. Reynolds.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Issue framed to determine set-off to claim on judgment bond. Before Woods, P. J.
    The facts appear in the opinion of the Supreme Court, and in the report of the same case in 43 Pa. Superior Ct. 168.

      Errors assigned were in certain rulings on evidence, and in directing judgment for plaintiff.

      Thomas F. Bailey, with him Samuel I. Spyker and Chas. C. Brewster, for appellant,
    cited as to construction of the contract: Graver v. Scott, 80 Pa. 88; Irvin v. Irvin, 142 Pa. 271; Barnhart v. Riddle, 29 Pa. 92; Weisenberger v. Ins. Co., 56 Pa. 442; Forrest v. Nelson, 108 Pa. 481; Cummins v. Ins. Co., 197 Pa. 61; Fry v. Glass Co., 207 Pa. 505.

      W. M. Henderson and H. H. Waite, for appellees.
    May 23, 1911:
   Opinion by

Mr. Justice Mestrezat,

J. F. Trexler and J. L. Trexler, the plaintiffs, owned and managed the "Paradise Furnace Farm” in Todd township, Huntingdon county, containing about 4,700 acres of land, and were trading under the firm name of Trexler Brothers and Company. On May 3,1904, H. P. Reynolds, the defendant, became a member of the firm under certain terms and conditions set forth in a written article of agreement of that date. The Trexlers owned jointly the one-half, and Reynolds the other half, of all the personal property and real estate. The firm carried on the business of farming and dealing in horses and cattle, one-half of the profits going to the Trexlers and the other half to Reynolds.

J. F. Trexler, H. J. Trexler and J. L. Trexler formed a limited partnership in 1898 under the name of the Trexler Stave and Lumber Company, Limited, the business of which, as declared in the articles of association, was “the manufacture and sale of staves, lumber and cooperage stock.” By an agreement in writing dated May 3, 1904, Trexler Brothers and Company leased to the Trexler Stave and Lumber Company, Limited, the right to take from the Paradise Furnace Farm “as much timber suitable for staves and lumber as the party of the second part needs to keep their plants in operation.” The lumber company agreed to pay a royalty of twenty-five cents per 1,000 feet for the staves and $2.50 per 1,000 feet for the lumber cut and removed from the farm.

Differences having arisen between the members of the copartnership of Trexler Brothers and Company, they entered into a written agreement of dissolution dated January 20, 1905. By the terms of the agreement, J. F. Trexler and J. L. Trexler sold to Reynolds all their undivided one-half interest in the Paradise Furnace Farm, “and all their right, title and interest in and to all the personal propperty upon the said lands, and all their right, title and interest in and to all other personal property owned by the said firm of whatsoever character or wherever situate,” except certain moneys therein specified. This provision of the agreement gives rise to the present controversy. As part of the consideration Reynolds agreed to and did give to the Trexlers a judgment bond and mortgage for $3,000 payable in one year after date with interest. On January 31,1906, judgment was entered on the bond and an execution was issued. Reynolds presented his petition to the common pleas setting forth, inter alia, that the Trexlers had not delivered to him all the personal property upon the premises which he had purchased, but had taken and carried away a considerable part of the property of the value of $1,865, and obtained a rule to show cause why the judgment entered on the bond should not be opened to permit a defense to that amount. The rule was made absolute and the judgment was opened. An issue was framed to determine what personal property, if any, was removed by the Trexlers, or either of them, from the real estate, and the value thereof, in violation of the dissolution agreement. The trial of the issue resulted in a verdict for the plaintiffs of $573.90. The learned trial court construed the agreement to mean that the Trexlers sold their interest in all the personal property on the farm, whether it belonged to the firm of Trexler Brothers and Company, to the Trexler Stave and Lumber Company, Limited, or to anybody else. The only question submitted to the jury was the value of the personal property removed from the farm by the Trexler Brothers. The plaintiffs appealed to the Superior Court and the judgment was reversed: Trexler v. Reynolds, 43 Pa. Superior Ct. 168. That court held there was no doubt or ambiguity in the dissolution agreement and that by its terms the Trexlers had sold to Reynolds only their interest in the personal property of the firm of Trexler Brothers and Company, and did not sell their interest in the personal property of the Trexler Stave and Lumber Company, Limited. The clear and convincing opinion of Judge Head leaves no doubt that the Superior Court properly interpreted the dissolution agreement. We are, therefore, relieved from discussing the question, and adopt that interpretation as the proper construction of the agreement.

The case was again tried in the common pleas, and under the instructions of the court the jury returned a verdict for the full amount of the plaintiffs’ claim. The defendant contended on the second trial as he did on the first that by the terms of the. agreement the Trexlers had sold to him their interest in all. the personal property on the farm of the firm of Trexler Brothers and Company and of the Trexler Stave and Lumber Company, Limited, and that he was entitled to set up as a defense pro tanto to the payment of the judgment bond the value of the personal property of the Trexler Stave and Lumber Company, Limited, which the plaintiffs had removed from the premises after the dissolution agreement. This defense was not admissible under the interpretation placed by the Superior Court on the dissolution agreement, and was therefore properly rejected by the trial court.

The numerous assignments allege error in the refusal of the court to permit the defendant to show that the Trexler Stave and Lumber Company, Limited, was engaged in selling and raising horses in connection with Trexler Brothers and Company, that the books of the two partnerships were kept together, that Reynolds was a partner in fact in the Trexler Stave and Lumber Company, Limited, that the money received by Trexler Brothers and Company for selling horses was turned over to the Trexler Stave and Lumber Company, Limited, that notice to trespassers was posted on the farm by a member of the limited partnership, and the value of the personal property removed from the farm after the agreement. These offers were all properly excluded. The plaintiffs did not object to the defendant showing the value of the personal property removed after the dissolution agreement if it was further shown that it belonged to Trexler Brothers and Company. The defendant, however, did not offer to show such ownership. The effect of the offers was to show business relations, between the two partnerships and to have the jury draw the conclusion that Trexler Brothers and Company and the Trexler Stave and Lumber Company, Limited, were one and the same partnership. The offers, if admitted, would not have shown that fact. The two firms were separate and distinct, one was the ordinary partnership, and the other was a limited partnership. The father of the Trexler Brothers was a member of the limited partnership but not of the other partnership, while Reynolds was a member of the general partnership, but not a member of the limited partnership. The business of the two firms was different, the general partnership was engaged in farming and dealing in blooded horses and cattle, while the limited partnership was confined to the business declared in its articles of association, viz., the manufacture and sale of staves, lumber and cooperage stock. Reynolds knew that they were separate and distinct organizations and that the limited partnership was carrying on its business on the Paradise Furnace Farm under a written agreement with Trexler Brothers and Company. The personal property which was removed by the Trexlers and now claimed by the defendant was manufactured by the Trexler Stave and Lumber Company, Limited, and belonged to that firm. As clearly pointed out in the opinion of the Superior Court, the Trexlers, by the dissolution agreement, did not intend to sell the personal property of the limited company.

The circumstances surrounding the parties at the time they entered into the agreement show that the personal property sold to the defendant was confined to the property which belonged to the firm of Trexler Brothers and Company. The purpose of the agreement was not simply to sell the real and personal estate of the Trexlers to the defendant; on the contrary, the primary purpose was to dissolve the partnership between the Trexlers and Reynolds because of “certain differences having arisen between the members of the copartnership.” It was executed by the three parties, plaintiffs and defendant in this case, “trading and doing business as Trexler Brothers and Company.” The agreement, therefore, manifestly intended to deal with the property of that copartnership, and not with the property of other persons or other partnerships. It is true that the first clause of that part of the agreement out of which this controversy arises is quite comprehensive and, standing alone, might be sufficient to sustain the defendant’s contention. It says: “All their right, title and interest in and to all the personal property upon the said lands.” In construing this clause, however, we must read in connection with it and what is a part of it the following: “and all their right, title and interest in and to all other personal property owned by the said firm.” The phrase “by the said firm” must be read in connection with both clauses in view of the declared fact that the agreement is between the three parties composing the firm of Trexler Brothers and Company and that its purpose is to dissolve that firm and dispose of the real and personal estate belonging to it. The Trexler Brothers Company could not sell the personal property of the Trexler Stave and 'Lumber Company, Limited. That could be done only by the officials authorized by law to make the sale. It is true, the Trexlers might sell their interest in the limited partnership but that would be quite different from the sale of the personal property of the partnership, and would not give the right to the purchaser to take possession of the property. If the defendant’s contention be correct that he purchased the interest of the Trexlers in the limited partnership, he must assert his right to that interest in another and proper proceeding. Under our interpretation of the dissolution agreement, however, we think he did not acquire the interest of the Trexlers in the personal property of the limited partnership.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Ford’s Estate.

      Decedents’ estates — Husband and wife — Real estate — Joint ownership.

    1. Upon the distribution of the estate of a decedent, the widow is entitled to recover from the estate one-half of the proceeds received from a certain farm where it appears that the decedent acquired title by deed to an undivided half interest in the farm, of which his wife possessed the other half interest; that nearly eight years later he joined with her in asking for the appointment of viewers in condemnation proceedings and received the amount awarded by the viewers in a report in which they found that he and his wife were the joint owners of the land; and that in addition to the amount awarded by the viewers he received the proceeds of sales of the property, there being an unchallenged finding of fact by the auditor that the widow did not intend that the decedent should hold these moneys as a gift from her.

      Practice, O. C. — Exceptions to administration account — Auditor.
    2. Where an auditor is appointed to pass upon specific exceptions to the account of an administrator, he cannot surcharge the administrator as to an item not covered by any of the exceptions.
    Argued April 19,1911.
    Appeal, No. 314, Jan. T., 1910, by Bertha A. Ford, Executrix of Estate of Charles K. Ford, deceased, from decree of O. C. Blair Co., March T., 1910, No. 253, making distribution in Estate of Albert Ford, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of M. M. Morrow, Esq., auditor.
    Albert Ford died on October 22,1907, intestate, leaving to survive him a widow, Mary E. Ford, and three children, Dr. Frank A. Ford, Charles K. Ford and Margaret C. Myers. Letters of administration were granted to his widow, Mary E. Ford. Charles K. Ford died on August 23, 1908, leaving to survive him a widow, Bertha A. Ford, to whom by will he left his entire estate. The auditor appointed to make distribution of the estate of Albert Ford found that the balance for distribution belonged to the widow Mary E. Ford by reason of the transactions stated in the opinion of the Supreme Court. Exceptions filed to the report on behalf of Bertha A. Ford, executrix of Charles K. Ford, deceased, were dismissed and the report confirmed.

      Errors assigned were (1) in awarding the entire estate to Mary E. Ford, (2) in allowing Mary E. Ford’s claim to one-half the proceeds of the Westmoreland County farm, (3) in not making a surcharge of $1,016.12, being proceeds of two notes paid to the administratrix since the death of Albert Ford and not accounted for.

      D. E. North, for appellant.

      H. F. Walters, for appellee.
    May 23, 1911:
   Per Curiam,

Upon the death of Jacob Kimmell his farm in Derry township, Westmoreland county, passed to his two children, Edmund B. Kimmell and Mary E. Ford, subject to the dower interest of Barbara E. Kimmell, his widow. By the deed of October 30,1895, from the son and widow, Albert Ford acquired title to an undivided half interest in the farm, and that he fully understood he was acquiring no more clearly appears from the letter addressed to him by Messrs. Marchand, Gaither & Woods, in which they explained to him that the deed as prepared by them, and subsequently executed by the said grantors, would not pass title to his wife’s interest in the land. Nearly eight years later he recognized her as the owner of the half interest by joining with her in asking for the appointment of viewers to assess damages they had sustained by the construction of a railroad over their property, and he received the amount awarded by the viewers in a report in which they found that he and his wife were the joint owners of the land. In addition to the amount awarded by the viewers he received the proceeds of sales of the property, and an unchallenged finding of fact by the auditor is that the appellee did not intend that he should hold these moneys as a gift from her. She was, therefore, clearly entitled to recover from his estate one-half of what he had received as the proceeds of the sale of the farm, and the first and second assignments are overruled. The third, complaining of the failure of the auditor to surcharge the appellee with the sum of $1,016.12, is also dismissed. He was appointed to pass upon nine exceptions to her administration account, but by no one of them was he asked to surcharge her with that sum, alleged to have been paid to her by Silas Jenkins.

The assignments of error are overruled, and the decree is affirmed at appellant’s costs.


text:
    Putt et al., Appellant, v. Africa.

      Real estate — Quieting title — Petition—Necessary averments — Act of June 10,1893, P. L. 4-15 — Ejectment.
    A petition for an issue to quiet title filed under the provisions of the Act of June 10, 1893, P. L. 415, must be dismissed where upon a hearing it appears from the evidence of the petitioners that one of the necessary jurisdictional averments in the petition is not true.
    Argued April 19, 1911.
    Appeal, No. 376, Jan. T., 1910, by plaintiffs, from decree of C. P. Huntington Co., Feb. T., 1910, No. 9, refusing issue to try title in case of H. M. Putt et al. v. J. Murray Africa and C. E. Benson.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Petition for framed issue to settle rights in land. Before Woods, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in refusing issue.

      H. H. Waite, with him Gettig, Bower & Zerby, for appellants.

      W. M. Henderson, with him Thomas F. Bailey, for appellee.
    May 23, 1911:
   Per Curiam,

The petition of the appellants for an issue to quiet the title which they claim to the property in controversy was filed under the provisions of the Act of June 10, 1893, P. L. 415. That act requires two jurisdictional averments to appear in the petition — title and right of possession in the petitioner for the issue and denial thereof by the person or persons on whom the rule to show cause why the issue should not be granted is to be served. Upon the hearing of the rule in this case, the court below found on the testimony of H. M. Putt, one of the petitioners, that they were not in possession of the land. One of the jurisdictional averments in the petition was not true, and, as .the court below could have awarded an issue only if it had appeared upon the hearing of the rule that the facts averred in the petition were true, its order refusing the issue is affirmed.

Appeal dismissed at appellant’s costs.


text:
    Commonwealth ex rel, Appellant, v. Pennsylvania Railroad Company.

      Railroads — Power to purchase water — Water companies.'

    There is no merit in an application for a writ of quo warranto challenging the right of a railroad company to purchase water from a water company in a territory within which it is authorized by its charter to supply water to the public. In that territory the railroad company is a part of the public.
    Argued April 19, 1911.
    Appeal, No. 56, Jan. T., 1910, by plaintiff, from decree of C. P. Blair Co., March T., 1909, No. 446, making absolute rule to quash writ of quo warranto in case of Commonwealth ex rel. M. Hampton Todd, Attorney General, v. The Pennsylvania Railroad Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Quo warranto. Before Baldrige, P. J.
    The attorney general filed the following suggestion for a writ of quo warranto:
    “Be it remembered that on this 15th day of May, 1909, comes M. Hampton Todd, the Attorney General of the Commonwealth of Pennsylvania, and files this suggestion, and gives the court to understand and be informed:

      “1. That the Tipton Water Company, a corporation created and existing under the laws of the State of Pennsylvania, was chartered on the 12th day of February, 1903, for the purpose of ‘ Supplying water to the public in Antis Township, Blair County, Pennsylvania, and to such persons, partnerships and corporations residing or located therein, as may desire the same.’

      “2. That the Pennsylvania Railroad Company, a corporation created and existing under the laws of the State of Pennsylvania, has constructed an underground line o| sixteen inch pipe leading westwardly, from a point in said township of Antis, from and out of said township, through the borough of Bellwood and the township of Logan to its shops in said township of Logan, and has connected this line of pipe, at a point in Antis township, with a similar line of pipe constructed by the Tipton Water Company leading from its impounding dam on Tipton Run in said township.
    “3. That the said Tipton Water Company is now, and has been for some time past, delivering to the Pennsylvania Railroad Company through the lines of pipe above mentioned about 1,500,000 gallons of water daily for consumption in its shops in Logan township, and that said water is propelled from the point of connection in Antis township to the said shops, which are higher in elevation by about 100 feet, by the pressure generated at Tipton station from the elevation of the impounding dam above that point.
    “ 4. That the Pennsylvania Railroad Company has constructed an underground line of twelve-inch pipe bearing eastwardly from a point in said township of Antis from and out of said township, into Snyder township and Tyrone borough and has connected this line of pipe, at a point in Antis township, with a similar line of pipe constructed by the Tipton Water Company and leading from its impounding dam in said township.
    “ 5. That the said Tipton Water Company is now and has been for some time past delivering to the Pennsylvania Railroad Company through the lines of pipe last above mentioned large quantities of water daily, which water is transported by gravity out of Antis township into the township of Snyder and borough of Tyrone, which water is used exclusively by said railroad company out of the township of Antis.
    “6. That prior to the taking of the water as aforesaid by the Pennsylvania Railroad Company for use out of the township of Antis the waters of Tipton Run, and its tributaries, flowed into the Juniata River near Tipton in undiminished volume at all times and were available to the riparian owners along said streams for all lawful purposes to which the same might be applied, but since the taking and use above stated all of the waters of said Tip-ton Run have been taken, leaving the channel of said stream destitute of water and dry, thus diminishing the volume and power of water in the Little Juniata River and depriving the riparian owners along Tipton Run and the Little Juniata River of its use.
    “ All of which acts, matters and things in the premises have been and continue to be to the great loss and damage of the public, and are in excess of the legitimate power of the Pennsylvania Railroad Company, and in the doing of said acts, matters and things the said Pennsylvania Railroad Company has willfully abused its corporate powers and functions.
    “Wherefore, the said Commonwealth prays the consideration of the court here in the premises and that a quo warranto be issued against the said Pennsylvania Railroad Company to show cause by what warrant or authority it claims to do the acts complained of and takes the waters of Tipton Run to be consumed by the said railroad company outside of the township of Antis.
    “ And that the court will, after investigation of the several matters herein set forth, if it shall appear that the said acts complained of were and are in excess of the legitimate powers of the said corporation, and in abuse of its corporate powers and functions, decree the same to be so, and that judgment be entered that it be excluded or ousted from the performance of the said acts, to wit:
    “ Taking the waters of Tipton Run to be by it consumed and used out of the township of Antis.”
    The defendant moved to quash the writ for the reason that the facts set forth in the suggestion were not sufficient in law to entitle the commonwealth to the writ.
    The court made absolute the rule to quash the writ. Commonwealth appealed.

      Error assigned was the order of the court.

      W. I. Woodcock, with him John C. Bell, for appellant.

      John G. Johnson, with him Neff, Riley and Hicks, for appellee.
    May 23, 1911:
   Per Curiam,

This appeal is utterly without merit. It challenges the corporate power of the appellee to purchase water from a water company in a territory within which it is authorized by its charter to supply water to the public. In that territory the appellee is part of the public: Bland v. Tipton Water Co., 222 Pa. 285; and it must have water if its cars are to run. Apart from its implied power to purchase water from a water company authorized to sell it, express authority to do so is found in the comprehensive words of the second section of the act incorporating it: 1846 P. L. 312. Nothing said in Bland v. Tipton Water Company justified the application for the writ of quo warranto; on the contrary, that case was authority for refusing it, and the learned judge below correctly so held.

Appeal dismissed.


text:
    Benson v. Altoona & Logan Valley Electric Railway Company, Appellant.

      Negligence — Street railways — Vacating judgments — Fraud—New evidence.

    A rule to show cause why a judgment entered on the verdict of a jury in an action for personal injuries should not be set aside for the reason that, it had been procured by fraud, perjury and deceit, is properly discharged where the depositions taken under the rule reveal the fact that the defendant’s own witnesses entertained opinions inconsistent with its contention, and depositions taken on the plaintiff’s part contradict the averments of defendant’s petition, and the alleged new evidence offered is practically the same that was submitted to the jury.
    Argued April 20, 1911.
    Appeal, No. 74, Jan. T., 1911, by defendant, from decree of C. P. Blair Co., Oct. T., 1909, No. 305, refusing to vacate judgment in case of Forrest W. Benson v. Altoona & Logan Valley Electric Railway Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Rule to show cause why judgment should not be vacated.
    The facts appear in the following opinion of Baldrige, P. J., dismissing the rule:
    Plaintiff instituted suit against the defendant to recover damages alleged to have been sustained by him by reason of the negligence of the defendant company. A verdict was recovered by the plaintiff in the sum of $3,200. A motion for a new trial was made to the trial judge, which was overruled. Thereafter an appeal was taken to the Supreme Court of this state. The Supreme Court overruled all the assignments of error and affirmed the judgment entered on the verdict.
    A petition was presented to this court, setting forth that at the trial of the cause the plaintiff and his witnesses testified that he was permanently paralyzed, incapacitated and disabled from doing or performing any work, which was false and fraudulent, as the alleged paralysis was not due to the result of the injury sustained to his head at the time of the alleged accident, but by reason of a disease which the plaintiff acquired prior to the accident, and in no way connected therewith; that since the affirmance of the judgment by the Supreme Court the plaintiff has entirely recovered from his paralysis; that he is able to use his right arm, hand and leg as well as he did prior to the accident.
    At the time this case was tried the defense was that the plaintiff was suffering from paralysis by reason of a disease he had acquired prior to the accident. The trial judge in his charge to the jury instructed them that if the plaintiff was suffering from the disease as contended for by the defendant there could be no recovery whatever. The verdict of the jury, under the instructions from the court, showéd conclusively that in their judgment the paralysis of the plaintiff was due to the accident, resulting from the defendant’s negligence.
    The depositions taken under the rule granted to show cause why this judgment should not be vacated reveal the fact that the defendant’s own witnesses entertain the opinion that the plaintiff has not fully recovered, and that he will continue to be more or less affected by reason of the paralysis, and the depositions taken upon the part of the plaintiff are to the effect that there is no improvement whatever in the physical or mental condition of this plaintiff.
    If this judgment was vacated and a new trial granted, the same facts would be in dispute as at the first trial, and there has been no uncontradicted testimony submitted to us that would justify us in acceding to this extraordinary request to grant a new trial after the affirmance of the judgment by the Supreme Court. The alleged new evidence set up by the defendant now is practically the same evidence that was submitted to the jury.
    Judge Dean, in the case of Gazzam v. Reading, 202 Pa. 231, speaking for the Supreme Court, says that equity will rarely open or set aside a judgment at law. The equity of the complainant must be free from doubt.
    Under these circumstances, we are of the opinion that we are not justified in-vacating the judgment and granting a new trial.
    The rule granted at the request of the defendant is, therefore, discharged.

      Error assigned was in making the above order.

      Thos. H. Greevy, with him E. G. Brotherlin, for appellant.

      J. Banks Kurtz, for appellee.
    May 23, 1911:
   Per Curiam,

Shortly after this court had affirmed the judgment obtained by the appellee in the court below the appellant made application to that court to vacate it for the alleged reason that it had been procured by the fraud, perjury and deceit of the appellee. The relief sought was extraordinary, and it was denied because in the opinion of the court below the appellant had not made out a case calling for it. We have not been persuaded that this was error. The reasons for discharging the rule to show cause why the judgment should not be vacated and a new trial awarded are set forth in the court’s opinion denying appellant’s petition. In it we concur, and on it the appeal is dismissed at appellant’s costs.


text:
    Hoyt’s Estate.

      Appeals — Decedents’ estates — Distribution—Interlocutory order.

    A decree referring back the report of an auditor in a decedent’s estate with direction that he make distribution in accordance with the opinion of the court sustaining exceptions to it is but an interlocutory-order from which no appeal can be taken.

      Argued April 20,1911.
    Appeal, No. 100, Jan. T., 1911, by Wm. T. S. Hoyt, Dora Hafer et al., devisees, etc., from decree of O. C. Clearfield Co., No. 3,250, referring report back to auditor, in Estate of Milo Hoyt, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Appeal quashed.
    Exceptions to report of Hazard A. Murray, Esq., auditor.
    The opinion of the Supreme Court states the case.
    The court sustained certain of the exceptions and referred the report back to the auditor to make .distribution in accordance with the opinion.

      Error assigned was decree of the court.

      Frank Fielding and Oscar Mitchell, for appellants.

      Harry Boulton, with him W. C. Miller, for appellee.
    May 23, 1911:
   Per Curiam,

This appeal is from a decree referring the report of an auditor back to him with direction that he make distribution in accordance with the opinion of the court sustaining two exceptions to it. This was but an interlocutory order. There can be no final decree until the schedule of distribution reported by the auditor has been absolutely confirmed by the court.

Appeal quashed.


author: Mr. Justice Elkin,

text:
    Central Pennsylvania Lumber Company’s Appeal.

      Taxation — Unseated lands — Appeals—Revision of valuation — Intermediate years — County commissioners — Courts—Statutes—Construction —Constitutional law — Due process of law — Acts of April 8, 1804, P■ P. 517, April 15,1884, P• P- 509, May 15,1841, P. L. 898, July 87,1848, P. P. 441, April 19,1889, P. P. 87, and May 8,1909, P. L. 491.

    1. Our whole system of taxation is purely statutory and neither the county commissioners nor the courts have any power in the revision of valuation, or in the levy and assessment of taxes, except such as has been conferred by statute.
    2. Where appeals are taken under the acts of 1889 and June 26, 1901, P. L. 601, the courts sit in review for the purpose of making such order or decree as may seem equitable under the facts, but these acts do not confer upon the courts the power to treat the controversy on the broad principles of equity without reference to the requirements of the tax laws.
    3. By the provisions of the acts of 1804 and 1834, the legislature intended that the valuation of the triennial year should remain undisturbed for a period of three years except where buildings or other improvements had been destroyed after the valuation was adjusted; or “where coal, ore or other minerals .... have been mined out subsequently to such triennial assessment,” as provided by the Act of May 8, 1909, P. L. 491. It follows from the fact that the legislature has expressly provided what abatements can be made in the valuation of real estate that no other allowances can be legally made.
    4. Neither the county commissioners in the first instance, nor the court on appeal, have the power to reduce the assessed valuation of unseated lands in the intermediate years between triennial assessments by allowance for timber removed.
    5. The Pennsylvania system of taxation is consistent with natural justice, and the enforcement of the tax laws of this state does not deprive a taxpayer of his property without due process of law.
    Argued May 2, 1911.
    Appeal, No. 273, Jan. T., 1910, by the Central Pennyslvania Lumber Company, from the decree of C. P. Potter Co., June T., 1908, No. 179, in the matter of the appeal of the Central Pennyslvania Lumber Company, from the decision of the Commissioners of Potter County for the year 1908.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Appeal from the county commissioners. Before Wilson, P. J., specially presiding.
    The facts appear by the opinion of the Supreme Court.
    The court below reached the following conclusions of law:
    1. The county commissioners, sitting as a board of revision and appeal, have no right to reduce or change the valuation of timber lands as fixed by the triennial assessment in the intermediate years, when the timber has been removed therefrom.
    2. This court has no power to make a reduction in the assessed valuation of unseated land by reason of the voluntary cutting and removing of the timber and bark therefrom by the appellant, subsequent to the triennial assessment.

      Errors assigned among others were (1, 2) findings of law as above.

      W. I. Lewis and Archibald F. J ones, with them Calvin H. McCauley, Jr., and R. R. Lewis, for appellant.
    — The assessment and valuation of land or property is an annual process: Greenough v. Fulton Coal Co., 74 Pa. 486; McReynolds v. Longenberger, 75 Pa. 13; Chestnut Hill Iron Ore Co.’s App., 6 Lane. Law Rev. 137; Ferguson v.. Lycoming County, 8 Pa. C. C. R. 667.
    The Act of July 27, 1842, P. L. 441, gave the commissioners power to equalize assessments and to hear appeals in intermediate years.

      W. K. Swetland, with him W. F. Dubois, for appellee,
    cited: Phila. & Reading Coal & Iron Co. v. County Commissioners, 229 Pa. 460; Manor Real Est. & Trust Co. v. Cooner, 209 Pa. 531; D. & H. Canal Co. v. Walsh, 11 Phila. 587; Beechwood Imp. Co.’s App., 12 Pa. Dist. Rep. 430; Schmuck v. Hartman, 222 Pa. 190.
    May 23, 1911:
   Opinion by

Mr. Justice Elkin,

The question for decision in this case is whether the county commissioners in the first instance, or the courts upon appeal, have the power to reduce the assessed valuation of unseated lands in the intermediate years between triennial assessments for causes not expressly authorized by statute. The valuation of the lands in question for taxation purposes was fixed at the triennial assessment of 1907 for a period of three years. No question as to the regularity or validity of that assessment is involved in the case here presented. After the valuation of these several tracts of land had been fixed for the three-year period, appellant company cut and removed the hemlock timber and bark from a large number of acres and thus depreciated the market value of the lands. All this was done after the valuations had been returned by the local assessors and the county commissioners, sitting as a board of revision, had passed upon and equalized the assessment. In other words, there had been a completed assessment before the timber was removed. No question is raised as to the validity of that assessment for the year 1907. In 1908 representatives of appellant company appeared before the county commissioners and asked a reduction in the assessed valuation of the tracts of land from which timber had been cut and removed. The county commissioners refused to allow any reduction and an appeal was taken to the court of common pleas, which after a careful review of the facts and the law sustained the action of the county commissioners. The learned court below based its decision upon the ground that our whole system of taxation is purely statutory and neither the county commissioners nor the courts have any power in the revision of valuations, or in the levy and assessment of taxes, except such as has been conferred by statute. That such is the law has been said over and over again. No authorities need be cited to sustain this fundamental principle in the administration of tax laws. It is recognized in every jurisdiction and by all text writers. In several recent cases this court has directed the attention of all taxing authorities to the statutory requirements as the basis of our system of taxation. We have said that there is no such thing as taxation by implication and that all authorities having to do with the valuation and assessment of land and the levy and collection of taxes must look to the statutes for their authority to act: Phila. '& Reading Coal and Iron Co. v. County Commissioners, 229 Pa. 460. This is settled law and needs no further discussion. A brief reference to our acts of assembly will be helpful to a proper understanding of the question raised by this appeal. The Act of April 3,1804, P. L. 517, provided that all lands held by individuals, companies or bodies corporate shall, for the purpose of raising county rates and levies, be assessed in the same manner as other properties. The Act of April 15, 1834, P. L. 509, required the county commissioners to issue their precepts to local assessors in every third year for the purpose of having a return made of all taxable persons residing in their respective districts, “and of all property taxable by law, together with a just valuation of the same to be made in the manner hereinafter directed.” Several sections of the act of 1834 were amended by the act of May 15,1841, P. L. 393, in which it is provided that, “said valuation to continue until the next triennial assessment; at which time the assessment shall be made by the assessors as prescribed by the provisions of this act.” It will thus be seen that triennial assessments have been the fixed policy of our system of taxation for three-quarters of a century. This assessment was intended to and does fix the valuation of lands as the basis of the tax levy for a period of three years. While the valuation of lands is thus fixed in the triennial year, a mode of assessment for each of the two succeeding years is also provided. In the two succeeding years it is made the duty of the county commissioners to send transcripts of such triennial assessments to the local assessors who are required to note and return such alterations as may have been occasioned “by the transfer or division of real estate, or by the destruction of buildings,” By the twelfth section of the act of 1834 it is made the duty of the local assessors in the two succeeding years to give notice to the taxable inhabitants in like manner as after the triennial assessment, but in certain cases only, and these cases are enumerated in the act. As to land valuations, the notice is only required to be given, “in the case of real property, where buildings or other improvements have been destroyed since such triennial assessment.” When the assesssors have made their return, the county commissioners are required to fix a time and place to hear all persons who may apply for redress, and they are authorized to grant such relief as shall appear just and reasonable, but, with the express limitation in granting relief that there shall be no allowance, “or abatement in the valuation of any real estate in any other year than that in which the triennial assessment is made, excepting where buildings or other improvements have been destroyed subsequent to such triennial assessment.” In other words, the legislature intended that the valuation in the triennial year should remain undisturbed for a period of three years except where buildings or other improvements had been destroyed after the valuation had been adjusted. This remained the law from 1834 to 1909 when the legislature added another cause for which deductions may be made in the two succeeding years. This cause is, “where coal, ore or other minerals assessed under the triennial assessment, have been mined out subsequently to such triennial assessment.” It will thus be seen that the legislature in dealing with this subject has expressly provided what abatements can be made in the valuation of real estate in the two years succeeding the triennial assessment, and it necessarily follows that no other allowances or abatements can be lawfully made. It is expressly provided in the act of 1834 that the valuation fixed in the year of any triennial assessment shall continue until the next triennial assessment. Of course this provision of the act must be read in connection with those provisions which allow abatements for specified causes, but except as reductions may be made for the causes specified, the triennial assessment remains undisturbed for the three-year period. This is the law and so far as we are advised it has always been so understood. What, then, is the situation of the appellant company. The valuation of its lands was fixed at the triennial assessment of 1907. It does not claim an abatement by reason of the destruction of buildings or other improvements. It makes no demand for an abatement on the ground that coal, ore or other minerals have been mined out since the last triennial assessment. It specifies no cause for abatement authorized by statute. All of these matters being the subject of statutory regulation we must look to the statutes for our authority to make inquiry, or to review what taxing authorities have done, or to grant relief when demanded. The statutes are as binding upon the courts as upon the direct taxing authorities. The courts have no greater power to grant relief than the county commissioners, or the board of revision. When appeals are taken under the Acts of April 19, 1889, P. L. 37, and June 26, 1901, P. L. 601, the courts sit in review for the purpose of making such order- or decree as may seem just and equitable under the facts presented, but what is just and equitable in tax cases must be determined with reference to the requirements of the law. The acts authorizing appeals from the valuations fixed by the county commissioners or the board of revision do not confer upon the courts the power to treat the controversy upon the broad principles of equity without reference to the requirements of the tax laws, but their decrees must be equitable and just in the sense of uniformly and fairly enforcing the law as it is written against all persons. In the present case, if the courts could treat the question involved upon the broad general principles of equity, they would be compelled to say that the valuation fixed at the triennial assessment in 1907 was not a fair value of the lands after the timber was removed in 1908, but there was no new valuation of these lands in 1908, and hence no valuation in that year from which an appeal would he. The time in which an appeal might be taken from the triennial assessment in 1907 had passed so that the validity of that valuation could not be inquired into when the present appeal was taken. The only question that could arise in 1908 was whether an allowance or abatement should be made on account of the timber which had been removed since the last triennial assessment. This is purely a question of allowance or abatement and has nothing to do with the validity of the valuation itself. There is no authority in the law for treating allowances or abatements upon the basis of the equities that may exist in a particular case, but such abatements can only be made as the statutes prescribe. The statutes do not authorize abatements to be made for timber removed in the two years succeeding the triennial assessment, and therefore there is no authority to grant relief on this ground. Hardships may sometimes result from the enforcement of this statutory rule, but substantial benefits are frequently derived. Lands as frequently appreciate as depreciate in value during the three-year period. When they appreciate in value the taxpayer has the benefit on his side; when they depreciate the advantage is with the county, but in a series of years the advantages and disadvantages will- be substantially equalized. As an illustration, -after the timber had been removed in 1908, suppose oil in large quantities had been discovered on these lands, their value would have been increased three, four, five or may be ten fold, but the valuation would have remained the same until the next triennial assessment. In such a case the advantage would be on the side of the taxpayer. Under such circumstances the county would be as powerless to increase the valuation during the two succeeding years as is the taxpayer to have it reduced except for statutory causes.

In the discussion of this question, Judge Cooley in his work on Constitutional Limitations (6th ed.), p. 631, makes use of the following language: "So the man who owns property when the assessment is taken may have been deprived of it by accident or other misfortune, before the taxes become payable, but the tax is, nevertheless, a charge against him. And when the valuation is made but once in a series of years the occasional hardships and inequalities in consequence of relative changes in the valuation of property from various causes, become sometimes very glaring. Nevertheless, no question of constitutional law is raised by these inequalities and hardships, and the legislative control is complete.” These observations of the learned jurist are a complete answer to the contentions of appellant in the present case. The hardships complained of and the equities insisted upon grow out of conditions over which the taxing authorities have no control. The legislature, and not the courts, must authorize the relief to be granted if it be deemed expedient to do so.

We do not see that the bill of rights of our own constitution, or the fourteenth amendment to the constitution of the United States has any application to the facts of the case at bar. Our systém of taxation is consistent with natural justice, and the enforcement of our tax laws does not deprive a taxpayer of his property without due process of law.

Decree affirmed at cost of appellant.


text:
    Cobb v. Bradford Township, Appellant.

      Negligence — Townships—Evidence—Roads, streets and highways— Duty to maintain guard rails — Condition two years after accident.

    1. The law does not impose on. township supervisors the duty of maintaining a guard rail at every point where a gully starts at the roadside, or where some natural depression, or small declivity on adjacent land, may happen to be. It is only when these gullies, or declivities, become dangerous on account of their proximity to thé highway that the duty of maintaining guard rails arises.
    2. In an action to recover damages for nersonal injuries where the negligence alleged is that the defendant township failed to erect and maintain a guard rail at an alleged dangerous place in a highway it is necessary that evidence should be introduced to show the exact condition on the ground in order that it may be determined whether the situation was so dangerous as to make it the duty of the township to maintain a guard rail as a protection to the traveling public.
    3. In such a case evidence tending to show the condition at the point alleged to be dangerous some two years after the accident is inadmissible as too remote.

      Practice, C. P. — Trial—Points for charge.

    4. When points are submitted asking for definite instructions they should be framed so as to make the law applicable to the particular facts of the case being tried.
    Argued, May 2, 1911.
    Appeal, No. 320, Jan. T., 1910, b.y defendant, from judgment of C. P. McKean Co., Oct. Term, 1909, No. 121, on verdict for plaintiff in case of Annie M. Cobb v. Bradford Township.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Bouton, J.
    In the charge the trial court stated the facts as follows:
    It appears that on the first day of August, 1908, A. T. Cobb went from his home in Corydon township to the city of Bradford; that he returned or started from the city of Bradford to return to his home on the evening of that day, — there may be a little discrepancy in the opinion of the witnesses as to the exact time he left the city of Bradford; most of the witnesses, however, testifying that before he reached the place where the accident occurred that it was somewhere near eight o’clock in the evening. From the evidence of the little boy, it appears that it was dark, and quite a dark night. He came to the place or near the place where the accident occurred accórding to .the testimony. The tire came off the wagon, the little boy went back after the tire and while looking for the tire, the horses commenced to back, having been frightened by a dog running across the road in front of him, barking in front of the horses; the dog barked, the horses began to back and backed off the road and over a sidewalk and down, at least they were found down in this gully, the wagon overturned, Mr. Cobb underneath and he expired in a few minutes after the neighbors had arrived.
    Verdict for plaintiff and judgment thereon for $4,800. Defendant appealed.

      Errors assigned were (1-5) various rulings of the court.

      John G. Johnson, with him D. H. Jack and W. E. Bur-dick, for appellant.
    — Evidence of what happened at or near the place of this accident almost two years subsequent thereto, was improperly admitted: Veit v. Brewing Co., 216 Pa. 29.
    It was error to instruct the jury that there was no evidence of contributory negligence: Forks Twp. v. King, 84 Pa. 230; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Hill v. Tionesta Twp., 146 Pa. 11; Chartiers Twp. v. Phillips, 122 Pa. 601; Boyle v. Boro. of Mahonoy City, 187 Pa. 1.
    The alleged negligence of the township was not the proximate cause of the accident: Trout v. Turnpike Road, 216 Pa. 119; Jackson Twp. v. Wagner, 127 Pa. 184; Herr v. Lebanon, 149 Pa. 222; Schaeffer v. Jackson Twp., 150 Pa. 145; Kieffer v. Hummelstown Boro., 151 Pa. 304; Willis v. Armstrong County, 183 Pa. 184; Chartiers Twp. v. Phillips, 122 Pa. 601; Heister v. Fawn Twp., 189 Pa. 253; Nichols v. Pittsfield Twp., 209 Pa. 240.

      D. U. Arird, with him V. B. Bouton, for appellee.
    May 23, 1911:
   Opinion by

Mr. Justice Elkin,

The negligence charged in this case is that appellant township failed to erect and maintain a guard rail at an alleged dangerous place in the highway. If appellant is liable at all, it is because it was its duty to maintain a guard rail over the gully at the south end of the tile culvert and was negligent because of its failure to perform that duty. In cases of this character the first step at the trial should be the introduction of evidence to show the exact conditions on the ground in order that it may be determined whether the situation is so dangerous as to make it the duty of the township to maintain a guard rail as a protection to the traveling public. The law does not impose on supervisors the duty of maintaining a guard rail at every point where a gully starts at the roadside, or where some natural depression, or small declivity on adjacent land, may happen to be. It is only when these gullies, or declivities, become dangerous on account of their proximity to the highway that the duty of maintaining guard rails arises. It is true that whether the situation is so dangerous as to require the performance of the duty is generally a question for the jury. But a jury cannot draw a correct conclusion without an intelligent understanding not only of what the law requires but what the facts are. In the present case there was a new macadam road built by the state in conjunction with the local authorities. The traveled roadway thus constructed is sixteen feet wide, at either side of which there is a grass covered berme two feet wide, thus making the highway at the point where the accident occurred twenty feet wide. It was in good condition and free from obstructions. It was a modern highway and much better than the average country road. To the south of the macadam roadway was a sloping bank covered with grass and other vegetation and extending southward to a sidewalk for a distance of about twelve feet. In other words, there was an intervening space of about twelve feet between the traveled highway and the pavement. The evidence does not satisfactorily show whether this intervening space was a part of the highway or what its condition was at and before the happening of the accident. In our judgment this is important as directly bearing upon the duty of the township. Again, it was stated at the argument, and seems to be a conceded fact, that the sidewalk which figured very largely in the trial of the case, was not constructed or maintained by the township, but by individuals. The record is silent as to the rights and liabilities of the individuals who maintained the sidewalk, and as to the duties, if any, of the township in relation to it, or the condition of the ground upon which it is located. The natural inference is that the township had nothing to do with that portion of the ground upon which the sidewalk was located because no public supervision was exercised over it, and the private individuals did as they pleased about it. The proofs, photographs and map do not make it plain to us just how this sidewalk bridged over the gully at the end of the tile sewer. The indications are that the sidewalk was elevated several feet above the ground as it crossed over the gully, and if so, the supervisors might very properly conclude that this was a sufficient barrier to guard against dangers at the point where the gully passed through. In other words, if the sidewalk itself protected the alleged dangerous place, there was no duty resting on the supervisors to provide additional safeguards, and so far as we are able to discover from this record no duty rested upon the township in connection with the safeguarding of the sidewalk.

Again, even if a duty did rest upon the township to guard the gully, this does not mean that the guard rail had to be extended to the telephone pole where there was no danger of the character about which complaint is made. As we understand the facts a considerable part of the distance between the gully and the telephone pole was a smooth, natural surface. If the team backed upon the sidewalk near the telephone pole where there was no danger, and then continued to back along the sidewalk or over it to a place of danger at the south side of the pavement, such a contingency could not have been provided against by the township maintaining a guard rail between the traveled roadway and the pavement. Under these circumstances the accident would have happened just the same, because the team would have backed over the pavement and south of the guard rail. In that event failure to maintain a guard rail at the side of the highway would not have been the proximate cause of the injuries complained of. Enough has been said to indicate the importance of more fully developing all the facts relating to the construction and maintenance of the sidewalk. Was it a part of the highway? Had the township any duty to perform in connection with its maintenance? Was the sidewalk itself, independently of who maintained it, a barrier or protection to persons traveling on the roadway at the point where the gully crossed? If so, the township had the right to rely upon that protection and was under no duty to provide additional safeguards.

The first assignment is based on the admission of evidence tending to show the condition at the point alleged to be dangerous some two years after the accident. This was too remote for evidential purposes and did not throw any light on the exact question before the jury. Standing alone it might not be deemed sufficient cause for reversal, but when the case is again tried this testimony should be excluded. While the instruction complained of in the • third assignment may be a correct statement of the law when the facts warrant its application, it did not take into account the many contingencies upon which the right to recover depends in the present case. For this reason it may have misled the jury. When points are submitted asking for definite instructions, they should be framed so as to make the law applicable to the particular facts of the case being tried. The mere fact that the roadway was of sufficient width for the usual and ordinary travel, would not relieve the township from maintaining guard rails at dangerous places, but it has something to do in determining whether under all the circumstances it was necessary to provide additional safeguards in the present case.

As to the question of contributory negligence, the general rule is that it is for the jury, when there is any evidence of this character to be considered. As the case stands we do not see the evidence of contributory negligence, but when it is again tried evidence of this character may be offered if it is desired to rely upon it as a defense. When the case is again tried along the lines indicated in this opinion, all the questions raised by this appeal can be presented and considered upon the facts as they are then developed.

Judgment reversed and a venire facias de novo awarded.


author: Me. Justice Mesteezat,

text:
    Dougherty v. Briggs et al, Appellants.

      Contracts — Parol contract — Charge of court — Evidence.
    1. Where the written correspondence between the parties to a contract discloses on its face that it does not constitute the whole agreement, and the terms thereof must be ascertained from the letters and acts of the parties, the contract is for the jury, including the question whether an offer contained in one of the letters of the defendant was accepted by the conduct or acts of the plaintiff.
    2. Appellants cannot be heard to object to the adequacy of a charge on appeal where no request was made at the time for fuller or more specific instructions, and no points submitted to the court.
    3. Although the court in questioning a witness uses language that might lead to the conclusion that he was asking the opinion of the witness upon facts not in evidence, the testimony given is not to be considered opinion evidence where a careful reading of it shows that the court was eliciting facts which had a direct bearing upon the question at issue.
    Submitted May 16, 1911.
    Appeal, No. 110, Jan. T., 1911, by defendants, from judgment of C. P. No. 1, Phila. Co., March T., 1909, No. 893, on verdict for plaintiff in case of Frank P. Dougherty v. Malcolm Briggs, Jr., and the Tradesmen’s Trust Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for money had and received. Before Kinsey, J.

      The facts appear in Dougherty v. Briggs, 231 Pa. 68.
    At the trial, while Charles S. Wood, Esq., was on the stand, the court asked the following questions:
    The Court: “Q. What were those equities from your knowledge of the situation? What is your idea as to them? ”
    Objected to by Mr. Scott. Objection overruled. Exception for defendants.
    “A. The contract that Mr. Dougherty brought to me provided that he was to receive a certain amount of his contract in cash, and all over and beyond that cash. Q. How much did he receive, or was to receive? A. The total amount of his contract was $8,950. He was to be paid during the progress of the work $6,350, and then he was to receive $2,600, in deferred payments of three promissory notes. Those promissory notes were guaranteed. Q. How much were the deferred payments? A. $2,600, to be paid by three promissory notes. Q. How much was he paid in cash, excluding that $2,900? A. I don’t remember that now. It was either $2,300 or $3,300, I forget which; $2,300 my recollection is. Then he was to have set side five houses. Q. Wasn’t it $3,300? A. $3,300 I think it was; something like that. Q. That would leave about $3,050, and you agreed to do that work for $2,900, you say, the balance of it, and threw off $150? A. No, we did not throw off anything. He was simply to finish the work for $2,900. Q. $150 dropped out of it, and he did it for $2,900, and was paid $2,900? A. Yes, sir. Q. Then that paid the contract in full, didn’t it? My question is, what was left over after he completed the work? I want to see where the plaintiff was short. He got his cash in full and I want to see what was left over which passes under the beautiful generic name of equity here. I want to know for my own instruction your exact view of that which you say was equity? A. He was to have a certain amount of cash as the work went along; then he was to have $2,600 in notes for which the five houses were to be collateral. Q. Those were to be Bihlmaier’s notes? A. Yes, sir. Q. And he did it? A. Yes, sir. Q. He got his cash? A. Yes, sir. Q. Now where is the equity? A. The equities were the value in five houses over and above an incumbrance of $1,700 each, which were set apart to him as collateral security for the payment of the three notes. Q. Why would he want the three notes when he was paid for his work? A. No, sir, he has not been paid. Q. If he was paid those three notes, where would his claim have been? A. Then he would have no right to those houses, the equities in the five houses were set aside as collateral security. Q. And would that be a suit against these defendants for the equities there, or against Bihlmaier? A. Against the defendants. The contract provided that these equities shall be set aside in escrow with the Tradesmen’s Trust Company. Q. There were five houses and were subject to a first mortgage of what? A. Of $1,700 each.” [5]
    The court charged in part as follows:
    There you have the history of that contract set out in the letter. The question to be determined then, is whether there was a waiver upon the part of Mr. Dougherty of any further interest in that claim that he had originally made when he tendered his offer in reference to the $2,900, that he would claim his rights from the company, and whether when the company refused it, he nevertheless proceeded with the $2,900 completion and got his money? If, of course, there was a waiver, in other words, if he accepted the Trademen’s Trust Company construction of this situation, that they were not going to be responsible to him, in other matters, but they would only pay him $2,900 that they were about to agree to pay, that would be an end of his claim. [3]
    Bihlmaier agreed to construct fifty houses on Conestoga street. The plaintiff Dougherty put in a bid for plumbing work, amounting to $8,950, $6,350 of which was to be paid in cash, which for all the purposes of this case he practically did receive, and the balance, $2,600, was to be paid in notes to Bihlmaier, called deferred payments. For securing the payment of that $2,600, Bihlmaier entered into an agreement whereby five houses should be set apart to secure the payment of that $2,600, in notes. That was subsequently transferred, it is alleged, to the Trademen’s Trust Company, that they took that agreement with knowledge of its contents and that therefore they are hable here. [4]

      Errors assigned were (1, 2) the inadequacy of the charge; (3, 4) in charging as above; (5) above ruling on evidence.

      Henry J. Scott, for appellants.

      Stanley Folz and Leon H. Folz, for appellee.
    May 23, 1911:
   Opinion by

Me. Justice Mesteezat,

This is the second time this case has been here this term-. The facts are fully stated in the report of the case and the opinion in Dougherty v. Briggs, 231 Pa. 68. The trial of the cause resulted in a verdict for the plaintiff. Subsequently, the court entered judgment for the defendants non obstante veredicto and the plaintiff appealed to this court. We reversed the judgment, holding that whether Dougherty waived his right to the collateral security for the deferred payments was a question of fact on all the evidence submitted, and directed the court below to enter judgment on the verdict. The judgment having been entered, the defendants have taken this appeal, and contend that there was no evidence to support the contract of waiver, that the charge was inadequate, and that improper and incompetent evidence was submitted to the jury.

The single question for determination by the jury was whether the plaintiff in his subsequent contract with the trust company had waived his “equities” in the five houses reserved under the contract with Bihlmaier to secure the deferred payments of $2,600. It appeared in the evidence, and was not denied, that in the contract between Dougherty and Bihlmaier the “equities” in the five houses were set aside as collateral for the deferred payments, that the Tradesmen’s Trust Company took title to the properties with notice of and assented to the terms of the contract, that the deferred payments were not made to Dougherty by Bihlmaier, and that the five properties were sold by the defendants and they received the proceeds which were sufficiently in excess of the prior mortgage to pay Dougherty’s claim. These facts were not disputed, but the defendants claim that Dougherty waived or released his “equities” in the five properties in consideration of the defendants paying him $2,900 to finish the work after Bihlmaier’s default. It is manifest that the burden was upon the defendants to show the release or waiver. This they attempted to do by the letters which passed between the parties and which appear at length in the former report of the case. The defendants introduced no parol testimony in support of their position. We held in the former case that the contract between Dougherty and the trust company was partly in parol and partly in writing and was, therefore, a question for the jury, and that the evidence was sufficient to submit to the jury. In the opinion it is said: “The parol testimony was ample to justify the jury in finding, as they did, that Dougherty did not waive or intend to waive his claim or lien on the five houses, and that the contract, as disclosed by the letters and the parol testimony, was simply that Dougherty should complete the plumbing work for $2,900 to be paid to him by the trust company as the work progressed.”

The contention that the charge was inadequate cannot be sustained. The trial court submitted the case to the jury on all the testimony, written and parol, to determine whether the plaintiff had waived his rights or “equities” in the five properties.' The learned counsel for the appellants excepted to the charge because the court had permitted the jury to determine the contract and did not construe the letters as a waiver of the plaintiff’s “equities” and peremptorily charge the jury to find for the defendants. There was no allegation prior to the present appeal that the charge was inadequate or insufficient. If the appellants desired any specific or fuller instructions on any question involved in the case, they should have made the request by submitting points to the court.

The testimony of Mr. Wood was not opinion evidence. The language used by the learned judge in the first question put to the witness was unfortunate and might lead to the conclusion, as maintained by the appellants, that he was asking simply the opinion of the witness upon facts not in evidence. A careful reading of the testimony quoted in the fifth assignment, however, will show that the court was eliciting facts which had a direct bearing upon the question at issue in the case.

The case having been fully considered on the former appeal, we think any further discussion is unnecessary.'

The judgment is affirmed.


text:
    Commonwealth v. Huston, Appellant.
    Argued April 24, 1911.
    Appeal, No. 11, May T., 1911, by Joseph M. Huston, defendant, from judgment of Superior Court, March T., 1911, No. 16, affirming judgment of Court of Quarter Sessions of Dauphin County, Sept. Sessions, 1907, No. 240, in case of Commonwealth v. John H. Sanderson, Joseph M. Huston, James M. Shumaker, William P. Snyder and William L. Mathues.
    Before Fell, C. J., Bkown, Mestbezat, Pottek, Elkin, Stewaet and Moschziskeb, JJ.
    Affirmed.
    Appeal by defendant from a judgment and sentence upon an indictment charging conspiracy to defraud the state of Pennsylvania.
    The facts and the report of this case will be found in 46 Pa. Superior Ct. 172.

      George S. Graham, with him Samuel M. Clement, Jr., and A. S. L. Shields, for appellant.

      J. E. B. Cunningham, deputy attorney general, and James Scarlet, with them John Fox Weiss, district attorney, John E. Fox and John C. Bell, attorney general, for appellee.
    May 25, 1911 :
   Per Curiam,

The order allowing this appeal, limited the argument to the assignments of error which relate to the action of the court of quarter sessions in sending the jury back for further deliberations, after a verdict of “Guilty of defrauding the Commonwealth” had been presented to the court, and the foreman of the jury had attempted an explanation of the verdict, in a colloquy between himself and the trial judge. After a consideration of the whole colloquy, as it appears in the reporter’s notes of the case, a majority of the court are of opinion that the judgment appealed from should be affirmed on the opinion of the Superior Court.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Primrose v. Casualty Company, Appellant.

      Insurance — Accident insurance — Construction—Public conveyance— Automobiles — Taxicab company.

      1. As the words used in a policy of insurance are tbe language of thé insurer, a salutary rule of construction requires them to be construed most favorably to the insured.
    2. A clause in an accident insurance policy providing double indemnity if injuries should be received “while riding as a passenger in or on a public conveyance, provided for passenger service, and propelled by. . . .gasoline” covers injuries received by the insured while riding in an automobile propelled by gasoline, which had been hired from a taximeter cab company, engaged in the business of hiring automobiles for general public use, and which was in charge of and driven by a chauffeur in the employ of the company.
    Mestkezat and Stewart, JJ., dissent.

      Argued Jan. 5, 1911.
    Appeal, No. 167, Jan. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 1,251, on verdict for plaintiff in case of Annie E. Primrose v. Casualty Company of America.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on an accident insurance policy. Before Kinsey, J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $11,646.08 and judgment thereon. Defendant appealed.

      Error assigned was refusal to enter judgment for defendant n. o. v.

      Thomas Learning, for .appellant.
    — When seated in the touring car automobile, which had been hired by himself and his companions for their private and exclusive use, the deceased was not a passenger, nor was the automobile a public conveyance provided for passenger service, within the terms of the contract of insurance: McColligan v. R. R. Co., 214 Pa. 229.

      Ira Jewell Williams, with him Alex. Simpson, Jr., and Francis Shunk Brown, for appellee.
    — The insured was a passenger: Penna. R. R. Co. v. Price, 96 Pa. 256; Perry v. R. R. Co., 41 Pa. Superior Ct. 591; Fox v. Philadelphia, 208 Pa. 127; Coryell v. Dubois Boro, 226 Pa. 103.
    The Bellevue-Stratford garage was a common carrier and its conveyances held open for general public hire and operated by its own chauffeurs were public conveyances: Ripley v. Insurance Co., 83 U. S. 336; Lloyd v. Storage & Transfer Co., 223 Pa. 148; Beckman v. Shouse, 5 Rawle, 179; Little v. Hackett, 116 U. S. 366 (6 Sup. Ct. Repr. 391); Missouri Pacific Ry. Co. v. Texas, etc., Ry. Co., 41 Fed. Repr. 316; Gibson v. R. R. Co., 226 Pa. 198.
    July 6, 1911:
   Opinion by

Mr. Justice Brown,

The defendant company issued an accident insurance policy to Frank J. Primrose, the husband of the plaintiff, by the terms of which it covenanted to pay her $10,500 in the event of his sustaining bodily injuries which should result in his death. In addition to this there was the following clause: “B. Double Indemnity. — If those injuries are received while riding as a passenger in or on a public conveyance, provided for passenger service, and propelled by steam, compressed air, gasoline, naphtha, electricity or cable, including passenger elevators, or while in a burning building, the amounts otherwise payable under Clause A shall be doubled.” While the policy was in force the insured and several friends were riding in an automobile hired by them from the Pennsylvania Taximeter Cab Company. It was in the charge of and driven by a chauffeur in the employ of that company. The night was dark and foggy and the machine left the road, striking a telegraph pole with such violence that all of the occupants were thrown out of it. Primrose sustained injuries from which he subsequently died. The appellant paid to the appellee the amount of the single indemnity, and in this action she recovered a judgment in the court below for the additional sum of $10,500, with interest, the trial judge having held that the injuries to the deceased were “received while riding as a passenger in a public conveyance provided for passenger service, and propelled by gasoline.” From that judgment we have this appeal, to be disposed of under undisputed facts. .No testimony was offered by the defendant, and there is no assignment of error complaining of anything proven by the plaintiff.

That the automobile in which the insured was riding was a conveyance is not questioned; that it was propelled by gasoline is conceded, and, if it was “a public conveyance, provided for passenger service,” the deceased was a passenger in it within the terms of the double indemnity clause of the policy. The only question, then, is, whether the conveyance was one embraced within that clause.

The contention of the learned counsel for the appellant is that the double indemnity clause is applicable only to the case of a person occupying a place for which he pays a fare in a railway car or conveyance operated for the common use of himself and of such promiscuous persons as may happen to take passage en route, over which conveyance he exercises no control. It is to be noted that the clause was inserted by the insurer itself in the policy of insurance which it issued to the insured, and, if it intended that the same should have the restricted meaning for which its counsel now contend, it could have readily so worded the clause. The insurance company could have so framed it that there would now be no doubt that the appellee could not insist that it was intended to extend to her claim. It is next to be remembered that, as the words used in the clause are the language of the insurer, a salutary rule of construction requires them to be construed most favorably to the insured: Hughes v. Central Accident Insurance Co., 222 Pa. 462; May on Insurance, sec. 175; and, for the same reason, if the clause is capable of two interpretations equally reasonable, that is to be adopted which is most favorable to the insured: Bole v. New Hampshire Fire Insurance Co., 159 Pa. 53; McKeesport Machine Co. v. The Ben Franklin Insurance Co., 173 Pa. 53. “If the language of the policy is doubtful or obscure, it will be construed most unfavorably to the insurer: Merrick v. Germania Fire Insurance Co., 54 Pa. 277. A contract of insurance must have a reasonable interpretation, such as was probably in the contemplation of the parties when it was made; and when the words of a policy are, without violence, susceptible of two interpretations, that which will sustain a claim to the indemnity it was the object of the assured to obtain should be preferred: Humphreys v. National Benefit Association, 139 Pa. 264:” Frick v. United Fire Insurance Company, 218 Pa. 409. As applied to the admitted facts in the present case, we regard the double indemnity clause as having but one meaning.

The Pennsylvania Taximeter Cab Company was engaged in the business of hiring automobiles to the public— “to the public generally,” is the language of the witnesses describing its business. “Anybody at all,” who was financially responsible, could hire one. The secretary and treasurer of the company testified: “They would be hired to anyone for rides or for other personal transportation as passengers from wherever they might get them to wherever they might want to go.” The machines, however, were never turned over to the control and management of those who hired them, but were always operated by a chauffeur or driver in the employ of the company. All that those who rode in them did was to direct where they were to go. They were as much passengers in them as they would have been if riding in a specially chartered car of a railroad company from which all but themselves were excluded, the only difference being that, as automobiles do not run on rails, the occupants could select their own traveling route; and it is not to be pretended that the double indemnity clause does not include passengers riding on a specially chartered railroad car.

The words “public conveyance, provided for passenger service, and propelled by gasoline,” are to receive a reasonable meaning. All conveyances are either for public or private use. The automobile in the case at bar was not one for merely private use. It belonged to a company which, as already stated, was engaged in the business of hiring automobiles for general public use. The use of no one of its machines was limited to any particular person, but anyone able to pay the price for the privilege of riding in it, while it was under the control of and being operated by one of the company’s employees, could do so. In some cases a fare per head was charged for the. use of the machine for a stipulated time or for a specified journey; in other instances there was a charge for the use of the car of so much by the hour, and, under this arrangement, the deceased and his friends hired the car in which they were riding.

Counsel for appellee have submitted most elaborate briefs in an effort to sustain the judgment of the court below, but no parallel case is found in the innumerable authorities cited by them, and the general principles upon which they rely are not questioned. We affirm the judgment because the conditions contemplated by the double indemnity clause existed at the time the automobile struck the telegraph pole, and concur with the learned court below in its opinion that “the injuries to the deceased were 'received while riding as a passenger in a public conveyance provided for passenger service, and propelled by gasoline,’ within the reasonable meaning of, and the proper construction to be put upon the policy.”

Judgment affirmed.

Mestrezat and Stewart, JJ., dissent.


text:
    Erb v. Commercial Mutual Accident Company, Appellant.

      Insurance — Accident insurance — Construction—Insured killed in struggle begun by himself.

    In an action on a policy of accident insurance providing an indemnity “against bodily injuries effected directly and independently of all other causes, through external, violent and accidental means” a recovery should be permitted when it appears that the insured was killed by shots from a pistol in the hands of his sister-in-law, with whom he was on hostile terms and who had been forbidden his house, that, during a quarrel with his wife in which he had pointed a- revolver at her, the insured had seen his sister-in-law in his residence and advanced towards her pointing the pistol in a threatening manner, that she seized his arm and got possession of the pistol, and when he attempted to regain possession of it, she struck him with it on the head, that she continued to strike at him and the shots were fired as she struck and when the pistol was in motion, that the insured did not point the pistol at his sister-in-law with the intention to injure her but to force her to leave the house, that he had no occasion to anticipate danger when he began the assault, that he continued the struggle after he had lost the pistol to prevent its use against himself, and that he had withdrawn from the conflict when he received the fatal wound.

      Argued Jan. 23, 1911.
    Appeal, No. 120, Jan. T., 1910, by defendant, from judgment of C., P. No. 5, Phila. Co., Dec. T., 1908, No. 3,375, on finding by referee for plaintiff in case of Kate Lilla Erb v. Commercial Mutual Accident Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit by plaintiff as beneficiary on an accident insurance policy. Before Hon. Harman Yerkes, referee by agreement.
    ■ The facts appear in the opinion of the Supreme Court. The referee found in favor of the plaintiff for 15,000, the face of the policy. The court dismissed exceptions to the referee’s report and judgment was entered on the award. Defendant appealed.

      Errors assigned were in dismissing exceptions to report of referee.

      Chester N. Farr, Jr., and William A. Glasgow, Jr., for appellant,
    cited: Taliaferro v. Protective Assn., 80 Fed. Repr. 368; Accident Ins. Co. of N. A. v. Bennett, 90 Tenn. 256 (16 S. W. Repr. 723).

      George Quintard Hortwitz, with him Layton Martin Schoch, for appellee,
    cited: Collins v. Fidelity & Casualty Co., 63 Mo. App. 352; Union Casualty & Surety Co. v. Harroll, 98 Tenn. 591 (40 S. W. Repr. 1080); Robinson v. U. S. Acc. Assn., 68 Fed. Repr. 825; Burkhard v. Ins. Co., 102 Pa. 262; Lovelace v. Travelers’ Protective Assn., 126 Mo. 104 (28 S. W. Repr. 877); Johnson v. London, etc., Accident Co., 40 L. R. A. 440; Fidelity & Casualty Co, v. Sittig, 181 Ill. 111, (54 N. E. Repr. 903); Biehl v. Assur. Corp., 38 Pa. Superior Ct. 110; Gavula v. Ins. Co., 15 Pa. Dist. Rep. 432; Hutchcraft v. Ins. Co., 87 Ky. 300 (8 S. W. Repr. 570).
    July 6, 1911:
   Per Curiam,

This action was on a policy of accident insurance that provided an indemnity “against bodily injuries effected directly and independently of all other causes, through external, violent and accidental means.” The insured was killed by shots from a pistol in the hand of Mrs. Beisel, his wife’s sister. His relations with his wife and with Mrs. Beisel were hostile and the latter had been forbidden his house. Early in the evening he had a quarrel with his wife, in which both resorted to violence. She summoned Mrs. Beisel to the house. Later in the evening when his wife was in the hall of the second story of their dwelling, he came from his bedroom and pointed a revolver at her. She ran into a bathroom and closed the door. He then saw Mrs. Beisel in the hall, and advanced towards her pointing the pistol in a threatening manner. She seized his arm and got possession of the pistol, and when he attempted to regain possession of it, she struck him with it on the head. She continued to strike at him and the shots were fired as she struck and when the pistol was in motion. The findings of fact by the learned referee, whose ability and long professional and judicial experience entitled them to great weight, were that the insured did not point the pistol at Mrs. Beisel with the intention to injure her, but to force her to leave the house; that in the struggle with her for the possession of the pistol, each was trying to prevent the other from using it; that in advancing towards her, when she had the pistol, his purpose was to gain possession of it, not to continue the assault; that when the fatal shot was fired he had retreated from the place where the struggle occurred and was near his bedroom door; that Mrs. Beisel did not intend to kill the insured and was not conscious of pulling the trigger, and did not aim, and that the shooting was wild and purposeless.” The correctness of the referee’s findings of fact is not questioned. His conclusion of law approved by the court, that under all the facts the death of the insured was accidental within the meaning of the policy is assigned as error. Under the words of the policy the death of an insured would not be effected by accidental means if it were the natural and probable consequence of his own act, and should have been foreseen. It would not be accidental if the result of a duel or of a deadly assault commenced by him where he had reason to expect a deadly defense and generally where by his conduct he had invited violence, the reasonable consequence of which he should have anticipated. But under the facts of this case, the insured had no occasion to anticipate danger when he began the assault; he continued the struggle after he had lost the pistol to prevent its use against himself and had withdrawn from the conflict when he received the fatal wound.

The judgment is affirmed.