author: Mr. Justice Brown,

text:
    Woodruff v. Gunton, Appellant
    (No. 1).

      Mines and mining — Rental—Interest on deferred payments.

    Where a coal lease provides that if by reason of a strike or other cause over which the lessee has no control, continuing longer than one month, the lessee shall be prevented from mining the minimum quantity of coal for the year, the mine rent may be abated proportionately, provided that three months’ rent shall in any event be paid, and the lessee in an action for rental testifies that he was prevented from mining for a certain length of time by causes over which he had no control, but in a previous trial testified that the delay was due to lack of funds, it is for the jury to say whether the lessee should pay interest on the deferred payments of rental. In such a case if the jury should find that the lessee had been delayed by reason of the lack of money in the prosecution of his work, he would properly be charged with interest on the deferred payments.

      Mines and mining — Coal lease — Culm—Net profits.

    A mining léase provided a certain price “for all coal that will pass over a screen of an eighth of an inch mesh and all that will pass through is to be classified as culm, and for said culm that it sold the said lessee is to pay the lessors one-tenth of the net profit of said culm.” In an action to recover for the profit on the culm the lessee contended that the entire cost of mining the coal and culm was to be taken into account in determining what were the net profits on the culm. The lessor introduced evidence which tended to show that it was impossible for the lessee to mine and prepare the royalty coal for market without producing culm, and that when the culm was sold by the defendant, the entire amount received for the same, less the cost of loading it, was net profit, as it had cost the lessee nothing to produce it. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued March 17, 1908.
    Appeal, No. 331, Jan. T., 1907, by plaintiff, from judgment of C. P. Sullivan Co., May T., 1903, No. 68, on verdict for plaintiff in case of William L. Woodruff v. Walter B. Gunton.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for royalties under a coal lease. Before Terry, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the court charged in part as follows:
    [Now the plaintiff has called on the stand witnesses who are familiar with the process of mining anthracite coal, mining engineers, and you have heard their testimony. In substance it is that the production of culm is a necessary incident in the process of mining. That is, their testimony in effect is, that in the mining and preparation of prepared sizes of coal you will necessarily produce culm; and the contention of the plaintiff is that that being so, that in the mining and preparation of prepared sizes this culm resulting, why, they say, it is a matter of no expense to the operator, to the defendant here, and that if he has had no expense in producing it therefore, when he sells it, it is all net profit or practically so. The only item of expense which the plaintiff admits should be charged against the selling price of the culm, is as I have stated to you, that stated by Mr. Smith to the effect that it would cost to load the culm, after it is separated from the run of mine, about iVo of a cent, or practically a cent a ton to load it, and the contention of the plaintiff is, that that is all the expense that attends the production of culm.
    Now we think you understand from what we have stated, and from the testimony of the witnesses and the comments of counsel, this position fully. If you are satisfied of the truth of that proposition, from the testimony in the case, then you will be justified in finding for the plaintiff the price received by the defendant in the sale of the culm, for all that he has •thus sold, less of a cent per ton expense. I think the plaintiff in his statement has not allowed that, but if you find that to be true you may make that allowance.

      Now if you are not satisfied that plaintiff’s contention is correct, if you are not satisfied of the proof of his contention in this respect, that culm is a necessary incident in the process of mining, but you believe the defendant’s story that in the production of this culm it cost him, as he has stated to you, a certain part of a dollar to get it, I have forgotten the amount that he stated, I think the highest figure was some seventy or eighty cents, if you are satisfied from his explanation of the process of mining as it took place in this mine, that this culm cost him to get it to the surface some seventy or eighty cents a ton, then that cost should be a charge against the culm account and if he sold the culm for less than that amount, or less than it cost, there would be no net profit upon it. If. you accept that theory, why, the plaintiff should not recover here for any net profit on culm; you should bear in mind all the time that it is net profit to which the plaintiff is entitled. Not gross profit, but net profit.
    Now we leave this contention to you as a matter of fact. Which is the more reasonable? Which impresses you as being the true one? You will consider all the testimony and adopt that which you believe to be true and which you believe to be supported by reason and the evidence.] [1]
    Defendant presented these points:
    1. That under the terms of the lease the plaintiff is entitled to receive one-third of one-tenth of the net profit made by the defendant on culm sold by him. The amount of net profit is to be ascertained by deducting the cost of production from the price for which it was sold. If the jury believe under all the evidence in the case that the cost of mining and producing culm by the defendant equaled or exceeded the price for which it was sold there is nothing due the plaintiff on that account. Answer: This point, gentlemen, we do not affirm, because this also asks us to decide, in a measure, questions of fact. This point requests us to say to you that the net profit is to be ascertained by deducting the cost of production from the price for which it was sold. That might include the cost of mining the coal and taking it to the surface; as to that, you will recall, there are two contentions here: one by the plaintiff that the mining of culm was a necessary incident to the process of mining run of mine coal and that theory we have explained to you. We have also explained to you the opposing theory of the defendant and therefore leave- it to you as a question of fact. We cannot affirm this point, because it would be contradictory of our general charge. We do say to you now, in answer to this point, as we said-in our general charge, that from the selling price of culm should be deducted the cost which attended the culm after it became culm, and the only evidence as to that in this case is the testimony of Mr. Smith, who stated that such expense was ^5- of a cent per ton. [2]
    2. Under the evidence in this case the plaintiff is not entitled to recover interest on the deferred payment. Answer: This point is refused. [2]
    Verdict and judgment for plaintiff for $4,327.46. Defendant appealed.

      Errors assigned were (1-3) above instructions, and answers to points, quoting them.

      Rodney A. Mercur, for appellant.
    We allege that “culm” while in some respects is an “incident,” it is more than an ordinary incident. In fact, while it is-not one of the prepared sizes of coal, it does actually contain a certain percentage of a smaller size of coal of an inferior grade, but now marketable, and being used: Lance v. Lehigh, etc., Coal Co., 163 Pa. 84; Cole v. Ellwood Power Co., 216 Pa. 283; Coleman’s Appeal, 62 Pa. 252; Ege v. Kille, 84 Pa. 333; Coal Co. v. Rogers, 108 Pa. 147; McGowan v. Bailey, 179 Pa. 470.
    The idea of profits presupposes the payment of all necessary expenses of the business by which such profits are made: Penn v. Whitehead, 17 Grant (Va.), 503; Freeman v. Freeman, 142 Mass. 98 (7 N. E. Repr. 710); Rubber Co. v. Goodyear, 76 U. S. 788; Lepore v. Building & Loan Assn., 5 Pa. Superior Ct. 276; Hentz v. Penna. Co., 134 Pa. 343.

      E. J. Mullen, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

On this appeal from a judgment recovered against him in an action on a coal lease the appellant raises two questions, one as to the right of the lessor to recover interest on deferred payments of royalties, and the other as to the profits realized by him on culm sold. The lease was executed March 23,1898, and the parts of it relating to these two questions are as follows: “First: The lessee will pay to said lessors in monthly installrhents for so much coal as they may mine during the year 1898 at the rates hereinafter named: $3,000.00 for the balance of 1898; $6,000.00 for the year 1899; $6,000.00 for each and every year thereafter until all the coal is exhausted, or this lease is determined, in monthly installments payable on the 15th day of each month for the proportion of mine rent due for the preceding month. And in consideration of the payment of said mine rent the said lessee shall be entitled to mine and move each year from the demised premises so many tons of coal of 2,240 lbs. each as multiplied by twenty-five cents per ton will be the equivalent of mine rent for such year; and for all coal mined in any year in excess hereof the said lessee shall pay at the rate of twenty-five cents per ton of 2,240 lbs. each in monthly installments as aforesaid.

“These prices are for all coal that will pass over a screen of an eighth of an inch mesh and all that will pass through is to be classified as culm, and for said culm that is sold the said lessee is to pay the lessors one-tenth of the net profit of said culm.

“The lessors at their option shall be entitled by their agents to supervise the weighing of all coal mined or shipped under this lease and at their option to have a check weighman at their expense, no charge to be made for coal consumed under the boilers or in carrying on the mining operations on said premises.

“ Second: If by any reason of a strike among the employees of the lessee or among the employees of carrying companies, or for any cause over which the lessee has no control continuing for a longer period than one month, the said lessee shall be prevented in any year from mining the quantity of coal for such year measured by the mine rent, the lessee shall be bound to mine and remove only so much coal during such year as by the use of due diligence they may be able to mine and remove and the mine rent for that year shall be abated proportionately, provided, however, that the said lessee shall in any event pay three months rent and the release of rent shall only relate to so much of the period of any strike as extends beyond one month.”

On the trial the appellant claimed that, as he was prevented from prosecuting the work of mining for a certain length of time by causes over which he had no control, he ought not to be compelled to pay interest on the deferred payments. The jury were instructed that the defense as to interest on the deferred payments must be based upon cause or causes for delay over which the defendant had no control, and this was submitted to them as a question of fact. This is not assigned as error, but the complaint is that the jury were not instructed that, as the only testimony offered on this branch of the case was that of the defendant, if they believed him, there should be an abatement allowed on all interest over and above the three months’ rent in each year, as provided in the lease. This instruction was not asked for, and in making complaint that it was not given the fact is overlooked that the jury had before them the testimony of the appellant on a former trial, when he testified that the only cause for his delay was “lack of funds” and that there was “no other material reason for it.” The court, therefore, correctly instructed the jury that, if he had been delayed by reason of lack of money in the prosecution of his work, it was no defense.

There is no dispute as to the quantity of culm sold by the appellant. The dispute between the parties is as to what is to be taken into consideration in determining what were the net profits realized, if any, by the lessee from the sale of it within the meaning of the clause which required him to pay one-tenth thereof to the lessors. His contention is that the entire cost of mining and marketing the coal and culm is to be taken into account, and the average cost per ton for mining and marketing the entire output, the run of mine coal, which included culm, bone rock, slate and other impurities, is the cost per ton for the culm in ascertaining whether he has realized any profit from the sale of it. The culm was sold for less than the cost of mining and marketing it on this basis, and the lessee, therefore, contends lessors are entitled to nothing for what was sold. The contention of the appellee, on the other hand, is that culm is a mere incident to the mining and preparation of the royalty coal for the market; that the coal in place does not contain culm; that it is created by the blasting of the coal in the mines, by the friction in handling and conveying the same to the breaker and by the preparation of coal for market in the breaker; that it is impossible, with the methods now in use in mining anthracite coal and the methods as actually used by the lessee, to mine and prepare royalty coal for the market without producing culm; that the same can be separated from the royalty coal by the screen and the breaker just before the one is loaded in the car; that the culm so separated in the breaker could be either loaded in the cars and sold or conveyed to the bank and thrown away; that nothing should be charged for producing the culm up to the time it is separated from the royalty coal, because it had to be brought out of the mine in order to mine and handle royalty coal for the market; that the cost of handling the cars of culm when sold was less than putting it on the refuse bank and throwing it away, and, therefore, the amount received for the culm was net profit, as it had cost nothing to produce it. Undqr the testimony produced by the plaintiff the question of what was the profit on the culm became a question of fact for the. jury and was so submitted to them. Two mining engineers called by the appellee testified that they had been at the mines frequently during the progress of the appellant’s mining operation and were familiar with his methods of mining and preparing the coal for market. They further testified that the production of the culm had cost him nothing in addition to the cost of mining and preparing the royalty coal for market up to the time it was separated from the royalty coal in the breaker, and that after such separation it cost less to sell and load it on cars than to put it on the refuse bank; that it was impossible for the defendant to mine and prepare the.royalty, coal for market without producing culm, and that when the culm was sold by the defendant the entire amount received -for the same was net profit, as it had cost him nothing to produce it. The testimony of one of the witnesses was as.follows: “Q. Did it cost Mr. Gunton anything additional to bring this culm out of the-mine? A. No, sir. Q. Anything additional to the cost of the other coal? A. No, sir. Q. Why not? A. Because that is purely an incident to mining and is never separated, and the price per car, the price that is paid the miner per car, is based on the amount of prepared sizes that that car will'produee on an average.” The appellant himself testified as follows: “Q. Doesn’t it cost you just as much to mine royalty coal and prepare it for shipment, whether you sell the culm or whether you do not sell it; in other words, would it not be necessary to do all the work and incur all the expense in the mining and preparation of royalty coal for market, whether the culm is sold or not ? A. Oh, the same operation would be necessary, certainly. Q. And the same cost would be, too, whether you sold the culm or put it on the bank, it would cost just the same, wouldn’t it? A. The dirt, and if there was any merchantable coal in the culm it would cost just the same, of course. Q. If there was no merchantable coal in the culm, and if you put the culm on the bank and didn’t sell it at all, your cost of mining the other coal would be just the same as though you sold that culm, wouldn’t it? A. Practically, yes, sir.” Whether the theory or contention of the appellee was correct was clearly a question for the jury, and they were properly instructed that if they found it .to be correct, they should find in his favor for the price received by the defendant for the culm, less xVb- cents per ton expense incurred in loading it, but that, if they believed the defendant’s theory or contention to be correct, there was no profit to be accounted for by him.

The assignments of error are all overruled and the appeal is dismissed.


source: Caselaw Access Project

author: Mr., Justice Brown,

license: Public Domain

text:
    Woodruff, Appellant, v. Gunton
    (No. 2).

      Mines and mining — Coal lease — Minimum royalty — Making up deficiencies in minimum royalty.

    Where a coal mining lease provides for the payment of a minimum royalty and the payment of a .certain sum per ton for all coal mined in excess of the tonnage upon which the minimum royalty is based, and there is no provision in the lease that a deficiency in the minimum royalty for one year shall be made up in subsequent years from coal mined in excess of the tonnage on which the minimum royalty is based, the lessee cannot recoup himself for the deficiency in the minimum royalty which he has had to make good in one year by mining the deficiency in a subsequent year without paying therefor. The lease in such a case is an agreement to pay a fixed sum at a fixed time during a fixed period for the privilege of mining the coal on the land leased.
    Argued March 17, 1908.
    Appeal, No. 338, Jan. T., 1907, by plaintiff, from judgment of C. P. Sullivan Co., May T., 1903, No. 68, on verdict for plaintiff in case of William L. Woodruff v. Walter B. Gunton.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elicin, JJ.
    Reversed.
    Assumpsit to recover for a coal royalty. Before Terry, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The trial judge charged in part as follows:
    [There are three questions raised in this case; that is, on three propositions the parties do not agree, one is, whether the plaintiff is entitled to recover in this case his proportion, or the one-third of the minimum royalties for the years 1898 and 1899. The plaintiff claims that that minimum royalty was not paid in those years and that therefore he is entitled to recover his proportion.
    The defendant claims that although he did not pay them in those years, yet he subsequently mined coal to the extent called for by the lease and in such quantity, and that the twenty-five cent royalty was calculated and paid on that, and that it was made up to the plaintiff in that way. Perhaps that is not an exact statement of it. The defendant contends, rather that he was not to pay both the minimum royalty and the royalty of twenty-five cents per ton; and that when he subsequently mined all that the parties provided for and paid for it, he paid all that was contemplated by the parties to the lease. That, we say, is one question.
    That will depend upon the construction of the lease, and therefore that question is one of law for the court. It becomes our duty to resolve that question, and your duty to accept the construction of the court upon that point.
    From a construction of the whole lease we have come to the conclusion that the contention of the plaintiff in this case is unwarranted. We have resolved that legal question involved against the plaintiff, and in our opinion he cannot recover both the minimum royalty and the royalty of twenty-five cents per ton. Therefore we instruct you that the plaintiff cannot recover for the minimum royalties claimed by him to be due for the years 1898 and 1899, and that will relieve you from the consideration of that question.
    If we are wrong in this construction, gentlemen, the plaintiff will have his remedy, and by appeal to a higher court can set us right and remedy the wrong, if it be a wrong, he is thereby done.]
    [The next item is, amount due plaintiff October 15, 1902, on minimum royalties for 1898 and 1899, $3,000; less royalties charged on coal mined, $1,267.97; net amount due plaintiff, $1,732.03.
    Gentlemen, under the view of the law as we understand it, and as we have already instructed you, you cannot allow this item to the plaintiff.] [2]
    [Gentlemen of the jury, counsel for the plaintiff, of course, prepared his statement from his own view of the law, as he had a right to do, and in that statement, as I have stated to you, was included this item of $1,732.03. We have instructed you as a matter of law to exclude that item from the account. Counsel for plaintiff has now made a computation, which has been shown to us, of the interest on that $1,732 item, which, added to the item of $1,732.03, makes the amount of the item to be deducted from plaintiff’s statement $2,212.52.- That you may verify, of course. These statements that are sent out with you are not binding upon you. They are furnished you as the respective contentions of the parties and as an aid to you in passing upon their contentions. You are at liberty to •use them and, under the instructions of the court, to adopt the views set forth in these statements, as we have indicated, except that you cannot allow the plaintiff this $1,732.03 item nor any interest upon it.] [3]
    Plaintiff presented this point:
    1. The plaintiff, under the terms of the lease, is entitled to one-third of the minimum royalties provided for by same, for the years 1898 and 1899, less one-third of the royalty price of coal actually mined and removed during these years. The undisputed evidence shows that the defendant paid no minimum royalties for either of these years, and that he mined and removed 15,2151^ tons of coal that would pass over an eight-inch mesh during this period. Answer: This point is refused. [4]
    Verdict and judgment for plaintiff for $4,327.46. Plaintiff appealed.

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

      E. J. Mullen, for appellant.
    Appellant contends that this question under the wording of this lease is ruled by the decisions of this court in the following cases: Lehigh and Wilkes-Barre Coal Co. v. Wright, 177 Pa. 387; Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118; Pennsylvania Coal and Coke Co. v. Witherow, 215 Pa. 327.

      Rodney A. Mercur, for appellee,
    cited: Kemble Iron Co. v. Scott, 15 W. N. C. 220; Denniston v. Haddock, 200 Pa. 426; McKeever v. Westmoreland Coal Co., 219 Pa. 234; Coolbaugh v. Lehigh & Wilkes-Barre Coal Co., 213 Pa. 28; Gallagher v. Hicks, 216 Pa. 243; Hollenback Coal Co. v. Lehigh & Wilkes-Barre Coal Co., 219 Pa. 124.
    January 4, 1909:
   Opinion by

Mr., Justice Brown,

This is an appeal by the plaintiff from the judgment from which we have just decided the defendant had no ground of appeal. It raises the single question of the right of the appellant, as a lessor, to recover from the appellee minimum royalties for years in which he did not mine the minimum quantity of coal provided for in the lease, having, however, mined and paid for in subsequent years enough coal to make up the deficiency in the royalties for the prior years. The years for which the minimum royalties are claimed are 1898 and 1899. The trial judge was of opinion, from his “construction of the whole lease,” that there could be no recovery for the minimum royalties for these years, and the jury so were instructed.

The lease is of a tract of land of 102 acres and 15 perches, for a period of ten years from March 23,1898, with the privilege at the expiration of that period of renewing for another period of ten years. The consideration inducing the lessors to “demise, lease and to mine let” their land was the following covenant: “The lessee will pay to said lessors in monthly installments for so much coal as they may mine during the year 1898 at the rates hereinafter named — $3,000.00 for the balance of 1898; $6,000.00 for the year 1899; $6,000.00 for each and every year thereafter until all the coal is exhausted, or this lease is determined in monthly installments payable on the 15th day of each month for the proportion of mine rent due for the preceding month. And in consideration of the payment of said mine rent the said lessee shall be entitled to mine and move each year from the demised premises so many tons of coal of 2,240 lbs. each as multiplied by twenty-five cents per ton will be the equivalent of mine rent for such year; and for all coal mined in any year in excess hereof the said lessee shall pay at the rate of twenty-five cents per ton of 2,240 lbs. each in monthly installments as aforesaid.” There is not another line in the lease upon the subject of how much the lessee is to pay, how or when he is to pay, how much coal he is to mine or when he is to mine it, and no other clause is, therefore, to be read in determining whether he must pay the minimum royalty provided for in the lease for 1898 and 1899, without regard to what he may have paid for excess coal mined in subsequent years. In construing the lease as to this we are confined to the portion above quoted. Though the court below spoke of its construction of the whole lease, there is nothing to be found in the remainder of it relating to the question before us.

The lessee agreed unconditionally to pay in monthly installments, on the 15th of each month, $3,000 for the remaining portion of the year 1898, $6,000 for- 1899 and the same sum for each succeeding year. This is an agreement to pay a fixed sum at a fixed time during a fixed period for a certain privilege. That privilege is to occupy the land of the lessors and mine and remove therefrom during each year of the fixed period a certain amount of coal — 12,000 tons of 2,240 lbs. during the remaining portion of the year 1898 and 24,000 tons during each of the remaining years of the lease. For all coal mined in 1898 in excess of 12,000 tons, and for all mined in any subsequent year in excess of 24,000 tons, the lessee is to pay twenty-five cents per ton. Whether the privilege to mine a certain amount of coal, in consideration of the payment of an annual royalty or rent, is exercised or not, the covenant of the lessee is to pay a fixed sum for the privilege. If the amount of coal which the lessee is permitted to mine in each year is not mined, there is no stipulation for a proportionate abatement of the annual royalty, nor is a privilege given to him to recoup himself after having paid such royalty by mining the deficiency in a subsequent year without paying therefor. Such was the privilege in the leases under consideration in Lehigh and Wilkes-Barre Coal Company v. Wright, 177 Pa. 387; Lehigh Valley Coal Company v. Everhart, 206 Pa. 118; Pennsylvania Coal and Coke Company v. Witherow, 215 Pa. 327; but the express covenant of the present lessee is that for each year and in each year he will pay a fixed sum, and in addition thereto twenty-five cents for every ton of coal mined in excess of what he is permitted to mine in consideration of the payment of the fixed sum. The payment of the royalty or rental for each year is independent of the payment in any other year, and the mining of the coal each year is independent of the mining in any other year. With the intention of the parties thus clearly expressed, it is impossible to attribute a different one to them and sustain the court below without reading into the lease a clause providing that the lessee may apply to the deficiency on the mine rent or royalty due for 1898 and 1899 the payments made in subsequent years for coal mined in excess of 24,000 tons. Counsel for appellee does not point to any clause in the lease sustaining his contention, but we are told that “ this claim of the plaintiff is unconscionable.” This is by no means to be conceded. The provision as to the payment of the annual' royalty was inserted to insure to the lessors prompt mining by the lessee and prompt payment for his occupation and use of the land. If by his delay in mining he is allowed to appropriate to the payment of the royalty for 1898 the royalties paid for excessive mining, five years thereafter, he is depriving the lessors of the use of their money for that length of time. This he may not do in the face of his express agreement to the contrary, and we may appropriately repeat what we said in Lehigh and Wilkes-Barre Coal Co. v. Wright, 177 Pa. 387: “The owners’ enjoyment of the value of their property would largely depend on receiving that value soon; if the payments, by reason of slow mining, were stretched into the future, they would receive far less than if made within a period of two, three or even five years, and all this coal could easily be mined within that time. Both parties assumed the valué of the coal in place to be twenty-five cents per ton, and this value defendants would have proximately got if it had been mined diligently; but, if, on account of conditions of market, charges for transportation or price of labor, it paid plaintiff better to mine very slowly, defendants would not receive nearly that value. For example, take the $4,000 paid for the 16,000 tons mined the ninth year; if the 16,000 tons were worth twenty-five cents per ton at date of contract, then defendants had lost nine years’ interest, or $2,160; deducting this from the $4,000, left only $1,840, equal only to eleven and one-half cents per ton by reason of the long deferred payment. The hardship of the bargain by the happening of this very contingency the owners sought to guard against by two distinct methods of fixing the purchasing price; one, twenty-five cents per ton,-to be paid as mined; and this is all plaintiff would have paid if it had mined with diligence; but there was another method; if for any reason, it chose to retain possession, and not mine diligently, then defendants had provided for this by exacting a fixed annual income of $4,000.”

When the appellee declares the claim of the appellant to be unconscionable he forgets that it is based upon a' contract entered into by himself in terms so clear that but one meaning can be given to them, and as he intelligently contracted, he is bound. If he made what he now regards as a hard bargain, he cannot, in the absence of fraud, accident or mistake in making it, ask to be relieved from it, and if he was foolish in making it, neither the legal nor chancery side of the court will shield him from the consequences of his folly: Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118.

The first assignment of error is sustained and the judgment reversed, with a venire facias de novo.


author: Mr. Justice Elkin,

text:
    Dignan v. Altoona Coal & Coke Company, Appellant.

      Mines and mining — Coal—Surface support.

    In a grant of all the coal underlying a tract of land, the grantor in the absence of an express waiver or the use of words which by necessary implication mean a waiver, is entitled to have his surface reasonably supported by the coal stratum granted.
    A grant of “all the coal or other minerals lying or being in, upon, or under ” a tract of land described in a deed, without more, does not deprive the grantor of the right to surface support; nor is such right of support waived by a provision in the deed relating to mining rights that “ all these said rights, liberties and privileges to be used and exercised without any liability for damages arising and resulting from the use and exercise of the same as aforesaid.” Such words have'no bearing upon or relation to the rule of law requiring surface support.
    Where a grant of coal expressly enumerates what surface privileges are to be enjoyed by the grantee, such as sinking air shafts, erecting buildings for a pumping station and providing that “ such mining operations, however, are not to interfere with the surface of said land,” such grant indicates the intention to reserve all surface rights, including sufficient support, not expressly granted.
    Argued Oct. 6, 1908.
    Appeal, No. 1, Oct. T., 1908, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1905, No. 88, on verdict for plaintiff in case of Mary Dignan v. Altoona Coal & Coke Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for injuries to surface of land. Before O’Connor, P. J.
    At the trial it appeared that on January 28, 1887, Mary Dig-nan granted to the defendant’s predecessor in title, for the sum of 82,500, certain coal in Gallitzin township.
    The material portions of the grant were as follows:
    “All the coal and other minerals, lying or being in, upon or under all that certain piece or parcel of land situate in the township of Gallitzin, County of Cambria and State of Pennsylvania, bounded and described as follows, to-wit: Beginning at a post, thence South sixty-five degrees East ninety-one perches to a post, being a corner of the land of Henry Bendon, thence along the line of said land North thirty-four degrees east one hundred and sixty-one perches, thence North sixty-five degrees West eighty-nine perches to a post, thence South thirty-four degrees West one hundred and eighty perches to the place of beginning. Containing one hundred and six acres more or less. Being the same premises which James McHugh and Susan C. McHugh by their deed bearing date the Eighth day of June, A. D. 1861 and recorded in the office for recording deeds &c. in and for said County of Cambria in Record Book Vol. 19, page 326 &c. sold and conveyed to the above named grantor. And the said party of the second part is hereby granted the full and exclusive privilege, right and liberty of entering at will upon said land and searching for, quarrying and mining, raising, delivering, taking and carrying away said coal and other minerals, such mining operations however are not to interfere with the surface of said land, which the said party of the first part reserves and is not conveyed by these presents, excepting the right privilege and liberty which is hereby granted to the said party of the second part of sinking a shaft on said premises for an air passage or opening into such mines as may be opened and used thereon, also the right and privilege of sinking a shaft'for the purpose of pumping out and up such water as may interfere with the mining operations upon said land with the privilege of erecting thereon such building or buildings as may be necessary and incident to said pumping of water from said mines the air and water passages referred to above are not to be erected or opened within two hundred yards of the house and barn on the premises herein described; the said party of the second part to have free ingress, egress and regress through and underneath said premises for the purpose of mining, removing, shipping and transporting said coal and other minerals; and all of the said rights, liberties and privileges to be used and exercised without any liability for damages arising or resulting from the use and exercise of the same as aforesaid, and possession is hereby given to the party of the second part, his heirs, executors, administrators or assigns for the purpose above receited.”
    The defendant presented the following point:
    That under the deed from Mary Dignan to David McCoy, dated January 28, 1887, conveying to said McCoy all the coal and other minerals in and under the piece or parcel of land therein described, together with the mining rights and privileges therein mentioned, and set forth in plaintiff’s statement in this case, and being the same deed offered in evidence by the plaintiff, the defendant is released from "any liability for damages arising or resulting from the use and exercise” of the rights and privileges therein mentioned, and is thereby released from any liability for damages arising from the mining and removal of all the coal under said land, including the pillars. And the plaintiff is not entitled to recover in this action for loss of water or injury to the surface of his land caused by the mining and removal of the pillars, and the verdict of the jury must be for the defendant. Answer: Refused. [1]
    Verdict and judgment for plaintiff for $3,417. Defendant appealed.

      Error assigned among others was above instruction, quoting it.

      David L. Krebs, with him M. D. Kittell and Philip N. Shettig, for appellant.
    The right of the owner of land to sell the minerals therein or thereunder, and confer upon the purchaser of the mineral the right to enter and mine and remove the same without being liable for any injury or damage done to the surface was first judicially recognized in this state in the case of Scranton v. Phillips, 94 Pa. 15; Madden v. Lehigh Valley Coal Co., 212 Pa. 63.
    If the right of surface support is released by apt words, in the grant of the coal itself, or in the grant of the surface, reserving the coal, it can no longer be enforced, either at law or in equity: Miles v. Penna. Coal Co., 217 Pa. 449.
    P. J. Little, for appellee.
    The words “all the coal and other minerals” gave no license to take out all the coal without regard to surface support: Weaver v. Berwind-White Coal Mining Co., 216 Pa. 195.
    Surface support is an absolute right arising out of the ownership of the surface. Good or bad mining in no way affects the responsibility; what the surface owner has a right to demand is sufficient support, even, if to that end, it be necessary to leave every pound of coal untouched under his land: Noonan v. Pardee, 200 Pa. 474; Rabe v. Shoenberger Coal Co., 213 Pa. 252; Weaver v. Berwind-White Coal Mining Co., 216 Pa. 195; Jones v. Wagner, 66 Pa. 429; Coleman v. Chadwick, 80 Pa. 81; Williams v. Hay, 120 Pa. 485; Robertson v. Coal Co., 172 Pa. 566; Richardson v. Clements, 89 Pa. 503.
    In Scranton v. Phillips, 94 Pa. 15; Madden v. Lehigh Coal Company, 212 Pa. 63, and Miles v. Pennsylvania Coal Company, 217 Pa. 449, the surface owners specifically waived the right to damages by reason of injury to the surface from the mining out of all the coal.
    January 4, 1909:
   Opinion by

Mr. Justice Elkin,

In Pennsylvania the rule has always been that in a grant of all the coal underlying a tract of land, the grantor, in the absence of an express waiver, or, which is the same thing, the use of words which by necessary implication. mean a waiver, is entitled to have his surface reasonably supported by the coal stratum granted. This rule has never been departed from, and as late as Weaver v. Berwind-White Coal Mining Company, 216 Pa. 195, was reasserted- and followed. Nor do we understand this rule to be questioned by the learned counsel for appellant, but, it is contended, that the words of the grant in the present case are such as by necessary implication must be construed to mean a waiver of surface support. The grant is for “all the coal and other minerals lying or being in, upon, or under” the tract of land described in the deed of conveyance. It has been uniformly held that the grant of all the coal does not affect the rule which imposes the servitude of surface support up'on underlying strata. We can discover no words in the present grant sufficient to modify or change the general rule.

It is further argued that the language used in the grant of mining rights and privileges is broad enough to waive the right of surface support. In answer, it may be stated, that the words of the grant relating to mining rights are of the same general import as those ordinarily used in conveyances of coal and other minerals. The words of the grant relied on to support this contention are “all these said rights, liberties and privileges, to be used and exercised without any liability for damages arising and resulting from the use and exercise of the same as aforesaid.” It is argued that in addition to the grant of all the coal, there is an express release of damages arising and resulting from the use and exercise of the mining rights to the extent of releasing any damage that may result to the surface by failure to give it sufficient support. Clearly this was not the intent of the parties. The release of damages in the covenant relied on refers to the proper exercise of the mining rights and privileges in the development and operation of the mines and have no bearing upon or relation to the rule of law requiring surface support. Nor can we agree that Scranton v. Phillips, 94 Pa. 15; Madden v. Lehigh Valley Coal Company, 212 Pa. 63; and Miles v. Pennsylvania Coal Company, 217 Pa. 449, relied on by appellant, are authority for a different doctrine. In each of these cases the grant contained either a release of damages for injury to the surface by the removal of all the coal, or provided for the execution of a full and unconditional release and discharge from any liability for damages to the surface. The principle of surface support was recognized in each case, but it was held to have no application because the parties themselves had covenanted for a different rule by waiving the right, which they not only could do, but did in those cases. In the case at bar there is nothing to indicate an intention to waive surface support, and it has always been held that this absolute right is not to be taken away by implication from language which does not necessarily import such a result. Indeed, the present grant contains what amounts to a reservation of the right to surface support, because, the grantor in express terms enumerates what surface privileges are to be enjoyed by the grantee, such as sinking air shafts, erecting buildings for a pumping station, and then provides that such mining operations, however, are not to interfere with the surface of said land.” All of which indicate an intention to reserve all surface rights, including sufficient support, not expressly granted.

The only material question involved in this appeal is that which affects the appellee’s right to surface support, and we agree with the learned trial judge in the construction of the deed of conveyance in this respect.

Judgment affirmed.


author: Me. Justice Pottee,

text:
    Lyttle, Appellant, v. Denny.

      Negligence — Innkeepers—Degree of care — Burden of proof — Folding bed.

    The duty imposed by law upon an innkeeper requires him to furnish safe premises to his guests and to provide necessary articles of furniture which may be used by them in the ordinary and reasonable way without danger.
    Where the heavy top of a folding bed in a hotel falls forward and down upon a guest while he is quietly lying upon the bed, and injures him severely, the burden of proof is not upon the guest to show in detail what was wrong with the bed and the reason for its falling, but upon the innkeeper to show that the accident happened from no want of care on his part.
    Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.

      Practice, C. P. — Trial—Depositions—Evidence—Rules of court.

    Where a rule of court provides for the taking of depositions of ancient, infirm and going witnesses, it must be shown that the witnesses whose depositions are offered are within the classification of the rule, or that their presence in court cannot be obtained.
    Argued Oct. 6, 1908.
    Appeal, No. 192, Oct. T., 1908, by plaintiff, from order of O. P. Cambria Co., June T., 1904, No. 250, refusing to take off nonsuit in case of A. C. Lyttle v. J. B. Denny.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ. ■
    Reversed.
    Trespass to recover damages for personal injuries. Before O’Connor, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Errors assigned were (1) in refusing to admit certain depositions, and (4) in refusing to take off nonsuit.

      Thomas H. Greevy, with him J. C. Davies and E. G. Brotherlin, for appellant.
    The liability of a hotel keeper is more severe than that of any other bailee except a common carrier: 11 Am. & Eng. Ency. of Law (1st ed.), 51; Heh v. Consolidated Gas Co., 201 Pa. 443.
    Where plaintiff shows a series of facts from which inference of negligence on the part of the defendant arises, that inference is sufficient to carry the case to the jury; having once arisen, it remains until overcome by countervailing proof, and the court cannot determine the Question: Matthews v. R. R. Co., 18 Pa. Superior Ct. 10; East End Oil Co. v. Torpedo Co., 190 Pa. 350; Shafer v. Lacock et al., 168 Pa. 497; Fisher v. Ruch, 12 Pa. Superior Ct. 240; Kepple v. Torpedo Co., 7 Pa. Superior Ct. 620; Brown v. Towando Borough, 24 Pa. Superior Ct. 378; Henderson v. R. R. Co., 144 Pa. 461; Devlin v. Beacon Light Co., 198 Pa. 583; Matthews v. R. R. Co., 18 Pa. Superior Ct. 10.

      M. D. Kittell, with him H. H. Myers, for appellee.
    The negligence of the innkeeper must be shown to have been the proximate cause of the injury to his guests: Weeks v. McNulty, 43 L. R. A. 185-187.
    January 4, 1909:
   Opinion by

Me. Justice Pottee,

From the history of this case it appears that in May, 1903, the plaintiff was a guest at the hotel of the defendant in Johns-town, Pa. In the room which was assigned to him there was an old style folding bed, with a wardrobe in the back, and so arranged that the bed portion would fold up so as to leave the bed in an upright position when not in use. The top of the bed was heavy, weighing about 300 pounds. The plaintiff occupied the bed during the night, and early the next morning as he was about to rise the top or upright portion of the bed fell forward upon him, crushing his head down upon his breast and inflicting severe injury. To recover damages for the injury thus caused the plaintiff brought this suit against the proprietor of the hotel. Upon the trial at the conclusion of plaintiff's testimony the court entered judgment of compulsory nonsuit, and from the refusal to strike it off the plaintiff has appealed.

The main question raised is as to the liability of an innkeeper to his guests. We find the general rule of law in this respect is thus stated in Beale on Innkeepers and Hotels, secs. 162,163: “The innkeeper is bound to provide reasonably safe premises. . . . Both in original safety of construction and in maintenance the premises must be such as reasonably to secure the safety of the guest. So the innkeeper has been held liable for injury to the guest by the ceiling falling upon him, owing to its defective condition; by the elevator falling with him, after having been negligently inspected, although the innkeeper himself had employed a proper inspector and was not personally negligent; by the breaking of a defective railing by reason of which the guest fell into an area; and by the guest falling off an unguarded stairway.”

The authorities are in substantial agreement that while the duty of an innkeeper requires him to take reasonable care of the persons of his guests, he is not to be regarded as an insurer of their safety. His liability has sometimes been declared to be similar to that of a common carrier, but the better opinion seems to be that the degree of care required of an innkeeper is not so great as that which is imposed upon those who carry passengers for hire. In discussing this question in Clancy v. Barker (U. S. C. Ct. Ap., 8th Circ.), 131 Fed. Repr. 161, Judge Sanborn says: “While there are many loose statements in the books to the effect that the liability of common carriers to their passengers and the liability of innkeepers to their guests are similar, and while that proposition may be conceded, it is certain that the limits of these liabilities are by no means the same. A railroad company is liable to its passengers for a failure to exercise the utmost care in the preparation of its road and the operation of its engines and trains upon it, because the swift movement of its passenger trains is always fraught with extraordinary danger, which it requires extraordinary care to avert. But an innkeeper’s liability for the condition and operation of his hotel is limited to the failure to exercise ordinary care, because his is an ordinary occupation, fraught with no extraordinary danger.” It'may be assumed, then, that the duty imposed by law upon an innkeeper requires him to furnish safe premises to his guests, and to provide necessary articles of furniture, which may be used by them in the ordinary and reasonable way without danger. Did the defendant, then, in this case, use such reasonable care in the discharge of this duty to the plaintiff who was his guest? The testimony introduced showed the fact and manner of the accident, but stopped short of pointing out the exact defect in the bed which caused it to fall down upon and entrap the plaintiff. The trial judge thought it was incumbent upon the plaintiff to show in detail just what was wrong with the bed, and the reason for its falling; and because this did not appear from the testimony offered by the plaintiff, judgment of nonsuit was entered. We do not agree with his view in this respect. Bearing in mind the duty of the innkeeper to guard with reasonable care the safety of his guests, proof of the happening of such an extraordinary accident casts the burden of explanation at once upon the defendant. The accident was so far out of the usual course that no fair inference can arise that it could have resulted from anything less than negligence upon the part of the management of the hotel. Beds do not usually operate as spring traps to close upon and catch the confiding guest. Yet the bed furnished by the defendant to the plaintiff in this case, proved to be just such a dangerous trap. Without any apparent cause the heavy head fell forward and down over the plaintiff while he was quietly lying upon the bed, and injured him severely. This could not have occurred had the bed been in proper condition for. use. We think the facts bring the case within the rule laid down in Scott v. London, etc., Docks Co., 3 Hurlst. & C. 596, and often applied by this court, as in Delahunt v. United Tel., etc., Co., 215 Pa. 241, where the principle is stated as follows (p. 248): “Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.” The circumstances under which this accident occurred were certainly such as to call for full explanation by the defendant. The facts indicate a lack of reasonable care upon his part, and it is for him to show why he should be relieved from liability.

Counsel for appellant also complain of the exclusion of certain depositions which were offered in evidence. But it appears that no rule of the lower court authorized the taking of the depositions of the witnesses in question, and they were therefore properly excluded. The rules of the Cambria county court provide for taking the depositions of ancient, infirm and going witnesses, but it was not shown that these witnesses were within this classification, or that their .presence in court might not be obtained.

The first, second and third assignments are overruled, but as we deem the facts shown sufficient to take the case to the jury upon the question of the defendant’s negligence, the fourth assignment of error is sustained, and the judgment is reversed with a procedendo.


author: Mr. Justice Potter,

text:
    Sipe v. Pennsylvania Railroad Company, Appellant.

      Appeals — Assignments of error — Insufficient assignment — Order of the court — Eeceptions.
    An assignment of error to the refusal of the court to grant a change of venue will not be considered where neither the order of the court, nor .an exception thereto, is set forth in the assignment.
    An assignment of error which quotes the ruling of the court upon one question, and gives the answer of the witness to another question, under another ruling, not assigned for error, is improper and will not be considered.

      Negligence — Waters—Injury to dam — Deposit of debris — Independent contractor.

    In an action against a railroad company to recover damages for the alleged negligent deposit of debris in plaintiff's dam, resulting from the construction of bridges in the stream above the dam, the defendant cannot claim immunity on the ground that the construction of the bridges had been done by an independent contractor, where it appears that the company had accepted the work of the contractor with full knowledge of the condition in which he had left the bed and banks of the stream.
    If an employer at the time he resumes possession of work from an independent contractor, knows or ought to know, or from a careful examination may ascertain that there is any defect in the work, he is responsible for any injury resulting therefrom to a third person by the defective performance of the work.
    Argued Oct. 6, 1908.
    Appeal, No. 125, Oct. T., 1908, by defendant, from judgment of C. P. Cambria Co., March T., 1903, No. 355, on verdict for plaintiff in case of D. A. Sipe v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover for injuries to a dam. Before O’Con-nor, P. J.

      The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $14,927.28. Defendant appealed.

      Errors assigned were various rulings and instructions sufficiently set forth in the opinion of the Supreme Court.

      H. W. Storey, with him John W. Kephart, for appellant.
    The independent contractor and not the defendant was liable for the injuries sustained by plaintiff: Allen v. Willard, 57 Pa. 374; Hunt v. Railroad Co., 51 Pa. 475; Painter v. Pittsburg, 46 Pa. 213; Wray v. Evans, 80 Pa. 102; Edmundson v. Railroad Co., 111 Pa. 316; Thomas v. Railway Co., 191 Pa. 361; Young v. Railroad Co., 30 Barb. (N. Y.) 229; Murtfeldt v. Railroad Co., 102 N. Y. 703 (7 N. E. Repr. 404); Carter v. Berlin Mills, 58 N. H. 52; Wabash, etc., Ry. Co. v. Farver, 111 Ind. 195 (12 N. E. Repr. 296); McCafferty v. Railroad Co., 61 N. Y. 178; Reed v. Allegheny City, 79 Pa. 300.

      Harvey Boland, with him William Davis, for appellee.
    January 4, 1909:
   Opinion bt

Mr. Justice Potter,

When this case was here before, as reported in 219 Pa. 210, the judgment was reversed because of the failure to apply the proper measure of damages to the circumstances of the case. Our examination of the evidence as it then stood did not show that the plaintiff had distinguished with sufficient certainty between the damage resulting from the action of the defendant company and that which might have arisen from other causes. In order that the failure of proof in this respect might be made good, a new trial was awarded. Upon the present appeal it is not contended that the instructions of the trial judge were incorrect as to the measure of damages or that they did not accord with the opinion of this court upon the former appeal. In their statement of the questions involved, counsel for appellant do not refer to the measure of damages. But if that question were properly raised, the evidence offered at the last trial, as it is collected and presented in the argument of counsel for appellee, is sufficient we think to sustain the verdict. There was ample evidence from which the jury could infer that the obstructions in the dam, of which complaint was made, resulted solely from the actions of the defendant company, in connection with the construction of its bridge. Thus the witness Tully testified substantially that prior to 1901 the plaintiff’s dam was clean; there was no obstruction in it; anything that did come in passed over the dam, nothing ever stopped there prior to 1901. Another witness, Skelly, testified that prior to 1901 the dam was clean; that he knew of no obstructions or sand bars or sediment there before that time; that there were no obstructions or sand bars at the mouth of Laurel Run, and that the fill or sediment in the dam below Laurel Run came from the fills and dumps placed by the Pennsylvania Railroad Company at the abutments and between the bridges. There was much more testimony from eight or ten other witnesses to the same effect.

We do not deem it necessary to consider in detail each of the thirty-nine assignments of error, filed by counsel for appellant. Most of them are without merit, and many of them are in disregard of the rules of this court, and are not sustained by anything contained in the record. For instance, the first assignment is to the refusal of the court below to grant a motion to set aside plaintiff’s statement on the ground that the summons was in assumpsit and the statement in trespass.' This motion was made and denied after the first judgment had been reversed and the record remitted from this court. This assignment fails to set forth the exact language of the motion or the order of the court, and does not show that any exception was taken or allowed. In the opinion upon the former appeal, we pointed out the fact that under the authorities, oyer of the writ could not be had. The court could not therefore look beyond the statement or declaration, and if it set forth a good cause of action there was no power to strike it off.

The second assignment reads as follows: “The court erred in stating in a voice so that it could be heard throughout the court room and in the presence of the jurors to try the cause, that the motion to set aside the statement was not made in good faith and that it ‘was made for the purpose of delay, which causes the administration of justice to be brought into disrepute./ ” There is nothing upon the record to sustain this assignment. Appellant prints in its paper-book an ex parte affidavit of its counsel setting forth the facts alleged in the assignment and excepting to them, but it does not appear that this affidavit was filed of record or the exception allowed by the court. The docket entries do not show that the affidavit was filed. In the opinion of the court below, overruling the motion for a new trial, it is said: “There is no evidence to support the allegation contained in number two. When the motion referred to in reason number one was made, having in mind that this court had disposed of that question and that the same matter had been called to the attention of the Supreme Court on appeal, we stated to counsel for defendant that his renewing the motion at this time appeared to the court to be prompted by a desire for delay. This statement was not made upon the trial, and whether any juror heard what was said by the court we do not know, nor do we believe that he did.” The record presents nothing for our consideration in connection with this specification.

The third assignment is to the refusal of the court to grant a change of venue. Neither the order of the court nor an exception thereto, is set forth in the assignment. The motion was based upon the fact that certain newspaper articles had been published in the county commenting upon the case in a manner favorable to plaintiff and unfavorable to defendant. The court in its opinion said: “The motion for change of venue followed the motion referred to in reason number one. The arguments upon the latter motion were not made in the presence or hearing of any juror. The court withdrew with counsel to an adjoining room and there heard and denied the application, for the reason that the allegation that a fair trial could not be had before a jury in Cambria county was not sustained and then and there counsel were informed that the permission of the court would be granted to examine any juror that counsel for defendant might desire to examine on his voir dire. This privilege counsel for defendant did not see fit to exercise, and the cause came up and was proceeded with, the following day.”

The tenth assignment quotes the ruling of the court upon one question, and gives the answer of the witness to another question, under another ruling, not assigned for error. Such inaccuracies in preparing specifications of error entail unnecessary labor upon this court, and tend to confuse the record.

The twenty-fourth assignment of error raises a point which does not seem to have been raised upon the first trial or considered upon the former appeal, and that is as to the work of construction having been done for the defendant company by an independent contractor. We do not think that the principle of nonliability upon the part of a defendant for injury resulting from the negligence of an independent contractor has any application to this case. It seems from the evidence that the damage to the dam did not immediately follow the construction. It apparently resulted from the gradual washing down of loose earth and debris left within reach of the flowing water. The negligence consisted in placing the. loose material in or near the stream where it would in the natural course of events be washed down by the ordinary flow of the water, aggravated no doubt by floods or high water. In the present instance the work was entered upon and prosecuted by the defendant company under the right of eminent domain, and its agreement with the contractor retained the right of supervision in its own engineer, with power to annul and forfeit the contract at his discretion if the work was not being done to his satisfaction under the plans and specifications of the defendant company. If it were necessary to rest the case upon that point, we would be inclined to hold that the control retained by the defendant company over the manner of performing the work, was so close and complete as to render it responsible. But in addition it is apparent, we think, that the injury to the dam must have resulted in great part from the gradual washing down of sediment and debris after the completion of the contract for the construction of the bridge, and the acceptance of the work by the defendant. We cannot avoid the conclusion that it accepted the results of the work by the contractor and was responsible for any injuries thereafter arising from the manner in which that work had been performed.

In First Presbyterian Congregation v. Smith, 163 Pa. 561, this court speaking through Justice Dean said (p. 576): “The Pennsylvania rule, deducible from all the cases, is, that if the employer, at the time he resumes possession of the work, from an independent contractor, knew or ought to have known, or from a careful examination could have known, that there was any defect in the work, he is responsible for any injury caused to a third person by defective construction.” And on page 577: “Has the contractor abandoned his temporary possession, and the owner resumed his permanent one? If so, the answer-ability of the contractor for breach of duty is to the owner, under his contract, not to third parties, for as to them he no longer owes any duty. He no longer stands in place of the owner, for the latter has resumed his relation to the public.”

And in 26 Cyc. L. & Pr. 1566, the general rule is thus stated: “A contractee may be liable for the neglect or wrongful act of the contractor or the contractor’s servants, although not otherwise liable, because of his ratification of such acts. If the work is completed, the contractee is responsible for injuries thereafter resulting from its imperfect construction or dangerous condition in which he permits it to remain, especially after the contractee has accepted the work.”

In the present case there is no suggestion that the defendant company was not fully acquainted with the manner in which the work was performed by the contractor, and with the condition in which the bed and banks of the stream were left by him, at the completion of the work and at the time of its acceptance at his hands.

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


author: Mr. Justice Mestrezat,

text:
    Burns v. Pennsylvania Railroad Company, Appellant.

      Arbitration — Conduct of arbitrators — Exceptions—Appeal.
    A defendant in an arbitration cannot object to the award, because of alleged misconduct of the arbitrator where it appears that his counsel was present at the arbitration, knew what the arbitrators did, entered no objection whatever to their conduct, but continued the arbitration until the cause was fully heard and disposed of.
    Where the defendant in an arbitration files exceptions to the award, and at the same time appeals from it, the appeal remands the case to the common pleas, and thereafter it is immaterial what disposition is made of the exceptions so far as it affects the subsequent trial of the cause.

      Practice, C. P. — Trial—Continuance.
    Where a case was placed on the trial list on April 18, and is called on the first day of June the trial judge cannot be convicted of error in refusing to strike the case from the trial list, and this is especially so where it appears that the cause had been pending for over five years, had been tried several times in the common pleas, and had been three times in the Supreme Court.

      Change of venue — Newspaper comments — Practice, C. P.

    Where a defendant railroad company applies for a change of venue, the burden is upon the company to show to the satisfaction of the court that it would not have a fair and impartial trial in that jurisdiction.
    The appellate court will not review the action of the trial court in refusing a change of venue because of alleged adverse comments of newspapers where it appears that the case had been tried four times with resulting verdicts of substantially the same amounts, and that the counsel for the defendant had invited discussion by replying in a lengthy article to the first comment on the case made by the press.
    Argued Oct. 6, 1908.
    Appeal, No. 208, Oct. T., 1908, by defendant, from judgment of C. P. Cambria Co., June T., 1903, No. 248, on verdict for plaintiff in case of Catherine Burns v. The Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for the death of plaintiff’s husband. Before O’Connor, P. J.

      The opinion of the Supreme Court states the case.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $12,000. Defendant appealed.

      Errors assigned amongst others were (1) dismissing exceptions to award of arbitrators; (2) in refusing a change of venue,' and (9) in refusing binding instructions for defendant.

      H. W. Storey, for appellant.

      E. T. McNeelis, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

This case was here on three former appeals: 210 Pa. 90; 213 Pa. 280; 219 Pa. 225. When it was here a year ago, we then expressed regret that we were compelled to remand it for another trial. We are now pleased to say that our judgment on this appeal will terminate the litigation which has been pending for nearly six years. Such delay frequently results in a denial of justice, and contravenes the maxim: Interest reipublicie ut sit finis litium.

We have examined with care the twelve assignments of error and we fail to find any merit in a single one of them. The sixth, seventh, eighth and ninth assignments are not only without merit but have no exceptions of record to support them. They need not be considered. The court was clearly right in dismissing the exceptions to the award of arbitrators. They were frivolous and without substance, and the only apparent excuse for filing them was to delay the final adjudication of the cause. The rule to arbitrate was taken by the defendant company, the arbitrators were regularly and legally chosen, and after a hearing in which both parties participated, an award in due form was filed. The exceptions to the award by the defendant was to the alleged misconduct of the arbitrators. As shown by the opinion of the court in refusing to sustain the exceptions, the allegation of misconduct was wholly unfounded. What was done by the arbitrators was done in the presence of counsel of both parties, and no objection was taken thereto until after the award had been filed. The defendant’s counsel was present, knew what the arbitrators did, entered no objection whatever to their conduct, but continued the arbitration until the cause was fully heard and'disposed of. At the time the exceptions were filed, the defendant also appealed from the award of the arbitrators. The appeal remanded the case to the common pleas, and thereafter it was immaterial what disposition was made of the exceptions so far as it affected the subsequent trial of the cause. The case was then ripe for trial in court without further delay by reason of the arbitration.

The learned judge was unquestionably right in refusing to strike the cause from the June trial list. The case was placed on the list on April 18, 1908, and was tried the first day of the following June. In view of the fact that the cause had been pending for over five years, had been tried several times in the common pleas, and had been three times in this court, the defendant company was not in a position to allege undue haste in the trial or that it did not have an opportunity to prepare for trial. The court in its opinion says: “The cause is regularly placed upon the list and the action of the prothonotary in placing it upon the list in compliance with praecipe of plaintiff was entirely legal and indeed any other action on the part of the prothonotary would not have been warranted.” This is a construction by the learned court of its own rules with which we will not, under the circumstances of this case, interfere. To strike the case from the June trial list and postpone it to the next term, several months thereafter, as asked for by the defendant company, -would have been an infringement of the plaintiff’s right to a speedy trial of the cause. The motion to strike the case from the trial list was properly overruled.

There was no sufficient ground shown by the defendant company to sustain its application for a change of venue which was presented to the court on the day the case was called for trial. The burden was upon the company to show to the satisfaction of the court that it would not have a fair and impartial trial in that jurisdiction. As the learned judge below correctly says, “ There was no proof of any sort presented to sustain the application, and no evidence offered to show that any juror summoned to attend court has been in anywise influenced by the publications complained of.” The answer of the plaintiff denied the averments of the petition for the change of venue, and in the absence of any evidence to support its allegations, the court was warranted in declining to order the change. The cause assigned in the petition was the alleged “unfair, improper, and in many instances, untruthful statements” of the press of Cambria county relative to the case, producing conditions which prevented a fair and impartial trial of the cause in the county. That the. comments of the press had no such effect and did not increase the amount of the verdict is shown by the fact that before the press had discussed the case at all, the jury on the first trial in December, 1903, returned, a verdict for $12,000, which is the exact amount of the last verdict. In view of the further fact that two other juries returned verdicts for $12,537 and $14,480, respectively, it is apparent, we think, that the learned trial judge committed no error in holding that the discussion of the case by the press of Cambria county did not deprive the defendant company of a fair and impartial trial. It may also be observed that if the press of Cambria county did comment upon the case, and discuss its merits, the defendant company, through its counsel, is not entirely without fault in inviting such discussion. From the excerpts from the press, printed as defendant’s exhibits in its paper-book, it appears that the second day after the first comment on the case was made by the press, the counsel for the defendant replied in a lengthy article in défense of his company. If, therefore, the case was tried in the newspapers of the county, the defendant company, by its counsel, and not the plaintiff, was responsible in part for its submission to that tribunal for adjudication. He who invites war must accept its consequences.

The other assignments of error are also without merit and need not be noticed. The case was unquestionably for the jury, and the court would have committed reversible error in directing a verdict for the defendant company or in entering judgment for it non obstante veredicto.

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Bracken v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Highway crossings — “Stop, look and listen”— Instruction — Harmless error.

    Where the'defendant in a grade-crossing case asks the trial judge to charge that a person entering upon five tracks of a railroad, must look and listen even after crossing the third track, and the trial judge denies the request, saying that it is not the law that a person is bound to stop, look and listen, between the several tracks, the appellate court will treat the error as harmless, and not reverse the judgment, when it appears that two other points were submitted by the defendant each defining virtually the same standard of duty as was asserted in the first, and both of which were unqualifiedly affirmed.

      Negligence — Railroads—Grade crossings — Witnesses—Opinions—Expert.

    Witnesses who are familiar with a particular grade crossing and have frequently seen trains passing upon it, though not experts, may be permitted to testify that so far as they could judge a particular train was running at a rate which was usually maintained at the crossing when the safety gates were closed.

      Practice, C. P. — Amendments—Parties—Parent and child — Death of child — Addition of mother’s name — Trespass for negligence — Use plairotiff.

    Where an action in trespass is brought in a father’s name for the negligent killing of a child, the mother’s name may be added by amendment as a party plaintiff, even after the case has been appealed and reversed, and is called for a second trial.
    Where a judgment in trespass in favor of a father for the death of a child is marked to the use of another, and subsequently the case is reversed, and upon trial the name of the mother is added by amendment, omitting the name of the use plaintiff, the omission is not a ground for claiming surprise, and continuance of the case is properly refused.
    In such a ease the cause of action is in the legal plaintiffs alone, and the use plaintiff, if he has any rights whatever in the action, can recover them only as the cause of action in the legal plaintiff is established on the trial. It is not the right of recovery in any use plaintiff that defendant is called upon to meet, but the right of the legal plaintiff.
    Argued Oct. 6, 1908.
    Appeal, No. 215, Oct. T., 1908, by defendant, from judgment of C. P. Cambria Co., June T., 1903, No. 32, on- verdict for plaintiff in case of Hudson C. Bracken v. The Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of a child. Before O’Connor, P. J.
    At the trial the defendant, by Mr. Storey as counsel, pleaded surprise as follows:
    The court having directed that the jury be qualified to try the case of Hudson C. Bracken against the Pennsylvania Railroad Company, entered to No. 32, June Term, 1903, H. W. Storey, counsel for the defendant company, objects to the changing of the parties at this time — just as the jury is to be sworn — from that of Hudson Bracken, for the use of W. David Lloyd, against the Pennsylvania Railroad Company, for the following reasons:
    1. That the'record shows that the judgment was assigned to W. D. Lloyd and an appeal taken to the Superior Court in that way.
    2. That the cause was put down for trial for the March term of court in the name of Lloyd v. Pennsylvania Railroad Company, and so appears on the official calendar and in the public advertisements in the newspapers, in .the list of causes for trial.
    3. That the subpoenas issued to the defendant company were in the name of and for the use of W. D. Lloyd against the Pennsylvania Railroad Company.
    4. We plead surprise at the changing of the parties at this time and state to the court that we have not subpoenaed any witnesses and have none in court and are unable to meet the case of Bracken (Lloyd) v. Pennsylvania Railroad, therefore, we ask that the cause be continued.
    The Court: This cause was heretofore tried in this court under the title of Hudson C. Bracken v. P. R. R. Company. After verdict and judgment entered thereon, the judgment was assigned to W. David Lloyd, and, upon appeal, the judgment entered in the court below was reversed, set aside and a venire de novo awarded by the Superior Court. We believe this disposes of any claim by Mr. Lloyd out of the assignment of the judgment, as it no longer exists, and the cause of action remains in Hudson C. Bracken, and the jury should be qualified to try that cause.
    For this reason we deny the motion of counsel for the defendant company, note an exception and seal a bill. [1]
    The attention of the court having been called to the omission to dispose of the rule granted March 6, 1905, to show cause why the plaintiff should not be allowed to amend the statement by including therein the name of Alice Bracken, the mother of the decedent and wife of Hudson C. Bracken, the plaintiff, before jury sworn, upon motion of counsel for plaintiff, that the rule is now made absolute and the name of Alice Bracken is added to the pleadings, as one of the parties plaintiff.
    H. W. Storey, counsel for defendant, objects to the amendment for the reason that the statute of limitations interposes, inasmuch as the death of the son occurred on November 29, 1902, and that the making of the rule absolute, after the intervention of several regular terms of court, would be improper and illegal, and we ask the court to note an exception.
    The Court: Exception noted and bill sealed. [2]
    Louis Schenkemeyer, a witness called by the plaintiff, was asked this question:
    Mr. Lloyd: “Q. How was it [the train] going compared with the trains usually going over the crossing?”
    Mr. Storey: Objected to for the reason the question calls for an opinion of the witness.
    The Court: We overrule the objection, note an exception and seal a bill for defendant.
    “Q. How was it going compared with the trains usually going over that crossing? A. I suppose I have seen trains going over that crossing as fast as that train was running, but it is a hard matter for a man that is not familiar with it to tell. Q. Do you mean by that the train was going as fast as the fastest train that you have seen going over that crossing?”
    Mr. Storey: Objected to as incompetent and as asking for an opinion from the witness, and for the reason that counsel is attempting to get something out of the witness when he has repeatedly said that he could not determine the speed of any train.
    The Court: The objection is overruled, exception noted and bill sealed for the defendant. [3]
    “A. I am telling you that the train was going at the usual rate of speed, at a fast rate of speed, and that is about all I can say about that; but there are trains that have run faster through there, I think, as I have understood they have.” Andrew Dennison, a witness called by the plaintiff, was asked this question:
    “Q. How fast was it [the train] coming? A. I could not tell you that. Q. How fast was it coming compared with passenger trains running over that crossing?”
    Mr. Storey: We think this is objectionable; some passenger trains run faster than others.
    The Court: The objection is overruled, an exception noted and a bill sealed for the defendant. [4]
    “A. It was coming straight at me; I think it was coming pretty fast; it was going as fast as they run passenger trains through there. Q. Was this train going as fast as passenger trains cross this crossing when the gates are down? A. Yes, sir; I think it was.”
    Defendant presented this point:
    Where there are five tracks on the main line of a trunk railroad it is the duty of one crossing to look and listen, in both directions, even after he has crossed three of the tracks.
    The Court: This proposition is for the jury and the request is denied. We may add that we know of no court that has ever held, as a proposition of law, that one must stop, look and listen between the several tracks of the railroad. Negligence has been defined to be a lack of caution according to the circumstances, and the jury must determine whether or not, after one has crossed a number of. tracks of a railroad, it would be safer for him to stop, or safer to go on. [5]
    Verdict for plaintiff for $1,906.70, upon which judgment was entered for $1,750, all above that amount having been remitted.

      Errors assigned were (1-4) above rulings, quoting the bill' of exceptions; and (5) above instructions, quoting them.

      H. W. Storey, for appellant.
    The amendment allowing the addition of the mother of the decedent as a party plaintiff was improper: Bracken v. Penna. R. R. Co., 32 Pa. Superior Ct. 23; Atwater v. Hagar, 10 W. N. C. 189; Railroad Co. v. Decker, 84 Pa. 419; Davis v. Penna. R. R. Co., 34 Pa. Superior Ct. 388.
    The evidence as to speed was improperly admitted: Green v. Railroad Co., 65 N. J. L. 301 (47 Atl. Repr. 418); Diele v. Railroad Co., 70 N. J. L. 138 (56 Atl. Repr. 156).

      William Williams, with him W. David Lloyd, for appellees.
    The amendment was properly allowed: Herdic v. Woodward, 75 Pa. 479; Insurance Co. v. Tenan, 204 Pa. 332; Com. v. Silcox, 161 Pa. 484; Dougherty v. Com., 69 Pa. 286; Brown v. Com., 78 Pa. 122; Wilkinson v. Northeast Borough, 215 Pa. 486; McFadden v. McFadden, 32 Pa. Superior Ct. 534; Rife v. Middletown, 32 Pa. Superior Ct. 68; Walthour v. Spangler, 31 Pa. 523; Maffitt v. Rynd, 69 Pa. 380; Farmers’ & Mechanics’ Ins. Co. v. Simmons, 30 Pa. 299; Holmes v. Railroad Co., 220 Pa. 189; Weaver v. Iselin, 161 Pa. 386; Hughes v. Williams, 17 Pa. Superior Ct. 229; Com. v. Dillon, 81* Pa. 41; Waltz v. Railroad Co., 216 Pa. 165.
    The evidence is.conclusive that the wagon upon which the decedent was riding was standing at the gates when he got on the wagon. The decedent having stopped at the gate, it must be presumed that he looked and listened before entering upon the track, and there is no evidence that the decedent did not look and listen after he had entered upon the tracks. It must, therefore, be presumed that he did look and listen after entering upon the tracks: Cromley v. Railroad Co., 208 Pa. 445; Penna. R. R. Co. v. Weber, 76 Pa. 157; Gray v. Penna. R. R. Co., 172 Pa. 383; Penna. R. R. Co. v. Werner, 89 Pa. 59; Little v. Tel. Co., 213 Pa. 429; Jones v. Railroad Co., 202 Pa. 81; Coleman v. Railroad Co., 195 Pa. 485.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

That the evidence was sufficient to carry this case to the jury on the question of defendant’s negligence, is not disputed. The effort was to charge the young lad who met his death with contributory negligence. These were the circumstances. The boy, Harry Bracken, under the age of thirteen years, was playing with some companions at a point near the railroad crossing between Johnstown and Morrellville on the Cambria side. The safety gates at the crossing were closed to give a clear track to a passing engine or train, and several wagons and cabs were waiting outside for the lifting of the gates. As soon as lifted these cabs and wagons entered upon the crossing. Young Bracken and two of his companions got upon the rear end of the wagon third from the gates, with a view to cross over. The railroad tracks at this point are five in number. Before proceeding far upon the crossing two of the boys, not because of any sense of danger, but simply to return to the Cambria side, jumped from the wagon. As soon as they had alighted they observed an approaching passenger train coming with rapid speed from the west, and then not more than fifteen or twenty yards from the wagon. They signaled as best they could to Bracken who was well toward the front of the wagon, but in another instant the wagon with Bracken in it having crossed three of the tracks, was on the fatal fourth where the collision occurred. The driver escaped by jumping just in time, the wagon was utterly demolished and the boy instantly killed by the passing train. Several of the witnesses testified that when they saw the boy on the wagon, he was not looking in the direction from which the train approached; none, however, say that they had him under their eyes for more than an instant, and that immediately before the accident occurred. A single witness testified that had the boy looked to the west when the wagon was on track No. 3, while he might not have been able to see the engine or cars of the approaching train, because of standing cars on a nearer track, he could have seen the smoke and steam from the train approaching. The inference defendant sought to derive from the testimony was that the boy was either negligent in failing to observe the train approaching in time to escape the danger, or, if he did observe it, was reckless in attempting to cross track No. 2 after the danger became apparent. That failure attended the effort to persuade the jury that the boy’s negligence contributed to' the accident, cannot be surprising to one who reads carefully the evidence. We are here, however, concerned only to inquire whether the defendant, because of misdirection by the trial judge as to the law governing the case, was denied a fair opportunity to make good its contention in this regard before the jury. The complaint is with respect to the answer given the first of the points submitted by the defendant. The point asked the court to say that “Where there are five tracks on the main line of a trunk railroad it is the duty of one crossing to look and listen in both directions even after he has passed three of the tracks.” The answer to this question was as follows: “This proposition is for the jury and the request is denied. We may add that we know of no court that has ever held, as a proposition of law, that one must stop, look and listen between several tracks of the railroad. Negligence has been defined to be a lack of caution according to the circumstances, and the jury must determine whether or not, after one has crossed a number of tracks of a railroad, it would be safer for him to stop, or safer to go on.” Clearly this answer went wide of the mark, because- of a misapprehension of what was included in the point submitted. The attention of the trial judge should have been called to the mistake. The point did not ask instructions to the effect that it was the duty of one who had crossed three tracks to stop, look and listen before entering on the fourth track. Had it embraced any such proposition the refusal of the point would have been entirely correct : Ayers v. Railway Company, 201 Pa. 124. The standard of duty asserted by the point was a legal obligation to look and listen before advancing upon the fourth track; in other words, what the point asserted was, that it is the duty of one attempting to cross several tracks not to cease his watchfulness upon crossing the first or the second in safety, but to continue to exercise his senses and be observant of obvious conditions until the crossing has been accomplished. So explained, the point should have been affirmed. But we cannot see that defendant was. in anywise prejudiced by its rejection or the answer given, in view of the fact that two other points were submitted by the defendant each defining virtually the same standard of duty as was asserted in the first; both of which were unqualifiedly affirmed. These points were, second, “That if the driver and the decedent were guilty of contributory negligence in not looking and listening after entering on the crossing, the plaintiff cannot recover.” • Fourth, “That if the jury believe the decedent was a bright, intelligent boy and of sufficient mental capacity and knowledge to comprehend danger, and did not use ordinary precaution by looking for the approaching train, the plaintiff cannot recover.” There was nothing in the answer to the first point which conflicted in the slightest with the law as declared in the answers to the second and fourth. Had the first point contained what the trial judge supposed, its rejection would have been entirely correct. All the defendant lost through the mistake was a qualified affirmance of the first point, which loss was fully made up by the repeated and unqualified affirmance of the doctrine therein asserted in the answers to the succeeding points. This must have left defendant without prejudice, and because we think this so evident, conceding the mistake, the case does not call for a reversal on this assignment.

The third and fourth assignments relate to the admission of the testimony of several witnesses as to the rate of speed maintained by the train at the crossing. These require but a word by way of review. Not being train men, and being without any experience which would enable them to form any intelligent judgment as to the rate of speed per hour at which the train was moving, but being familiar with the particular crossing, and frequently having seen trains pass at this point, they were permitted to state that so far as they could judge the train was running at a rate which was usually maintained at the crossing when the gates were closed. We see no error in this; the testimony bore upon both disputed points — the negligence of the defendant and the contributory negligence of the boy, — and the question was one of fact in regard to which expert knowledge was not required in order to qualify one to speak with sufficient accuracy for the legitimate purposes of the case. It could be determined as well from common observation and experience.

The action was originally brought in the name of Hudson C. Bracken, the father of the boy who was killed, and a trial was had on the case as it thus stood on the record, resulting in a verdict for the plaintiff. While a motion for a new trial was pending, and at the instance of the plaintiff, a rule issued to show cause why the name of Alice Bracken, the mother of the decedent, and wife of Hudson C. Bracken, should not be added as party plaintiff. The motion for a new trial having been refused, an appeal was taken to the Superior Qourt, which resulted in a reversal for errors which are not repeated here, and therefore do not concern us. When the case was called for trial a second time, March 2, 1908, no answer had been filed to the rule for amendment and the motion remained undisposed of. Before the jury was sworn, the attention of the court having been called to the undisposed of motion, the rule was made absolute, and it was ordered “that the name of Alice Bracken be added to the pleadings as one of the parties plaintiff.” The jury was then sworn as to both plaintiffs. The action of the court in allowing the amendment is made the subject of another assignment. It is only necessary to refer to the case of Weaver v. Iselin, 161 Pa. 386, as ample and conclusive authority for the action of the court. In that case the suit was brought , by the father alone,-and the amendment adding the name of the wife as party plaintiff was allowed upon the argument of the appeal in this court from the judgment of the lower court. The matter is thus disposed of in the opinion filed in the case, “We have no doubt as to the right of the plaintiffs to amend, in the manner proposed, even at this stage of the case. It appearing that the name of Susanna Weaver, wife of the plaintiff George Weaver, was omitted from the record by mistake, and counsel having moved to amend by adding her name as one of the plaintiffs, it is ordered that the record be amended accordingly.” The amendment in that case was open to every objection that is urged here.

Before the amendment was allowed here changing the parties, the case had appeared on the trial list as that of Hudson C. Bracken, to the use of W. D. Lloyd v. Pennsylvania Railroad Company. It seems that after the result was reached on the first trial, Hudson C. Bracken assigned the judgment obtained to Lloyd. The amendment omitted the name of this use plaintiff, and the case stood in the name of the legal plaintiffs alone. Because of this omission defendant claimed surprise and demanded a continuance, which was refused. This refusal to continue is made the subject of the remaining assignment. The fact that the case appeared on the trial list to the use of another than the legal plaintiff, was of no consequence whatever; nor was it at all material that in the appeal to the Superior Court the use plaintiff’s name appeared. The cause of action was in the legal plaintiffs alone, and the party marked as use plaintiff, if he had any rights whatever in the action, could recover them only as the cause of action in the legal plaintiffs was established on the trial. It was not the right of recovery in any use plaintiff that defendant was called upon to meet, but the right of the legal plaintiffs. The amendment omitting the use party’s name was not merely formal, but wholly unnecessary. If the defendant thought to defeat the action solely because the use plaintiff had no right to recover, and neglected to prepare its defense against the legal plaintiffs who alone had the right of action, it was the kind of mistake which ought never be allowed to delay the trial of a case.

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