text:
    La Belle Coke Company v. Smith, Appellant.

      Vendor and vendee — Articles of sale — Specific performance — Title— Boundaries — Deeds—Equitable estate.

    A title bond or articles for the sale of land, which does not set forth the purchase price, nor the terms of payment, nor indicate what the purchaser is to perform, cannot be specifically enforced.
    Where an equitable owner of land under articles of purchase or a title bond, sells a portion of the land before he secures a deed, the grantee takes subject to the equities between the legal owner and the equitable owner. If a controversy between the legal owner and the equitable owner as to a boundary line is settled by a compromise deed, the purchaser of a portion of the land from the equitable owner, pending the compromise, will be bound by the boundary, line fixed by the compromise deed.
    Argued May 11, 1908.
    Appeal, No. 210, Jan. T., 1907, by defendant, from judgment of C. P. Fayette Co., March T., 1904, No. 22, on verdict for plaintiff in case of La Belle Coke Company v. Jeremiah Smith.
    Before Fell, Brown, Mestreza.t, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for coal underlying land in Luzerne township.
    At the trial the jury returned a verdict for plaintiff subject to the question of law reserved.
    The court subsequently entered judgment on the verdict Umbel, J., filing the following opinion :
    In the early part of the nineteenth century John Crawford owned several 100 acres of land situate on the Monongahela river in Luzerne township, Fayette county, Pennsylvania, including the coal, title to which is now in dispute in this case, and on February 18, 1830, he executed a bond to his son, William W. Crawford, in the sum of $6,000 conditioned that he should within one year execute to him, his heirs and assigns, a good and sufficient deed in fee simple for 200 acres of the said land, more or less, bounded by the courses and distances as surveyed by Joseph Crawford, Jr., with certain unimportant reservations, which bond was recorded January 6, 1838, in deed book “ T,” page 377, and the coal in question was included within the boundaries of the land referred to in said bond.
    The conditions of the bond as to the making of the deed within one year and the conveyance of the identical land called for in the bond were not complied with, nor is there any evidence that the said William W. Crawford, the obligee in the bond, took any legal steps toward enforcing his rights under it, nor was deed made to him for any part of the 200 acres until 1840.
    Kecorded with the bond is an ex parte affidavit, dated' January 1, 1836, of Joseph Crawford, Jr., referred to in the bond as the engineer who made the survey, setting forth :
    1. The courses and distances of the survey, seemingly so far as material to the controversy between the parties, as follows: “ Beginning at a stone near the spring run 70 perches from a stone in the division line between William Crawford, brother of John Crawford, and John Crawford, S. 75° W. 51 perches to a stone; thence S. 18f° E. 94.5 perches to a sugar tree; thence S. 72° W. 35 perches to a W. O. on top of the river hill; thence same course to the river,” which includes the coal in question within the aforesaid 200 acres, more or less.
    2. That he believed the said survey is the one alluded to in the said bond of February, 1830.
    3. That John Crawford told deponent that the land contained within the above-mentioned lines was exclusively for his son William W. Crawford, making mention at the same time that there was one field more in the survey that he originally intended to give William but on reflection he thought William was entitled to in consideration of some debts he, William, had paid for John’s son-in-law.
    4. That John Crawford repeatedly told deponent that William W. Crawford was to have the land above mentioned one or two years after the land alluded to was executed.
    5. William W. Crawford called upon deponent to make the survey, which survey deponent made in the presence of John Crawford, the father, the plot of which survey deponent gave into the possession of his father, Joseph Crawford; at that time John Crawford told deponent he had agreed to give William W., his son, a deed according with the second survey, excepting a portion of the river hill.
    There is also recorded with the said bond another ex parte affidavit dated January 1, 1836, of John Bower, who says the bond was drawn up by him, that it was voluntarily executed by said John Crawford and that deponent’s recollection is that it was prior to the last marriage of said John Crawford.
    Which two affidavits, while of small material consequence in the adjustment of the matter in dispute, show conclusively that there was then and evidently for some time had been a controversy between John Crawford and his son William W. Crawford regarding what should be included in the conveyance, affecting particularly the lines as bearing on the part of the said 200 acres over and in the vicinity of the coal in question.

      By deed dated December 30, 1837 (two years after the date of the above affidavit), William W. Crawford et. ux., conveyed to Henry Turner the following described land': “ A certain lot of ground situate near the Monongahela river in the countv aforesaid bounded as follows : Beginning at a sugar tree near the coal bank belonging to Joseph Davis and running S. 17° W. 200 feet in front along the said river and extending back 300 feet between the parallel lines bearing N. 73° E. and also the coal under the ground between said parallel lines continuing in the same course as far back as the said William W. Crawford’s land extends,” which by legal conveyance, etc., in due time became vested in the defendant.
    By deed dated April 3, 1841, William W. Crawford , and wife conveyed to Gideon John a part of the said premises fronting 12.85 perches on the river and extending back 12.85 perches between parallel lines bearing north 73° east, forming a square containing 165 perches, “ also the coal lying under the surface of the ground embraced between the two parallel lines aforesaid continued in the same course, viz.: N. 73° E. as far back as said William W. Crawford’s land extends,” which-by due and legal conveyance became vested in the defendant.
    Other conveyances were made by said William W. Crawford of coal lots or tracts near and adjoining the Turner and Johns lots aforesaid bounded on the north and south by lines parallel to the longest lines of said Turner and John lots and in each deed there is included “ also the coal under the ground back of said lot embraced between the above described parr allel lines continued in the same course as far back as said William W. Crawford’s land extends.”
    The indefiniteness of the extent of the coal conveyed in each instance and the failure to locate the real line, conclusively establish that such line was uncertain and not fixed, and that it was doubtless the occasion of controversy between said John and William W. Crawford, further evidence of controversy between them is the action of ejectment instituted by John Crawford against William W. Crawford, Henry Turner et al., at No. 49, June Term, 1838, for the 200' acres referred to in the above-mentioned bond, which action was compromised and settled after December, 1839.
    In the limited time we have been able to devote to the consideration of this case, we have not discovered any authority holding or indicating that, on failure or refusal of John Crawford to carry out the condition of the said bond, the obligee, William W. Crawford, could enforce specific performance and compel conveyance to him of the said 200 acres. If the obligor failed or refused to convey, etc., the obligee’s remedy would be to sue on the bond, in view of which we seriously question whether such title vested in the obligee in the bond under the provisions thereof as would enable him to make conveyance of title to the Turner and other lots or any part of the said 200 acres without other and further action on the part of the obligor, except subject to the existing equities between John and his son, William W. Suppose the obligor for some reason had refused absolutely to convey all or any part of said 200 acres, as the action of ejectment at No. 49, June Term, 1838, indicates he contemplated, would not the obligee have been limited to recovery on the bond and the obligor could not have been held liable beyond the penalty thereof ? Suppose, further, that the obligor had elected not to convey and proceeded forthwith to the obligee and advised him accordingly and thereupon paid, or in good faith offered to pay, him the $6,000 penalty provided in the bond, would it be contended that such action on the part of the obligor did not free and clear him and operate to satisfy the said bond and at the same time wipe out every possible interest and claim that the obligee had or could have in the said 200 acres and every part thereof under the said bond? We strongly incline to the conviction that these considerations would have to be decided in favor of the obligor: Streeper v. Williams, 48 Pa. 450; Mathews v. Sharp, 99 Pa. 560 ; Clements v. R. R. Co., 132 Pa. 445.
    The purchaser (Turner et al.) of an equitable title or of a title inchoate or defective on its face, takes it subject to all the countervailing equities to which it was subject in the hands of the person (William W. Crawford) from whom he purchases; he cannot claim to be placed in a better position than such person; it is only the purchaser of,.a title perfect on its face, for a valuable consideration, who takes it discharged from every equity or claim of which he had no notice: Chew v. Barnet, 11 S & R. 389 ; Chew v. Parker, 3 Rawle, 283 ; Reed v Dickey, 2 Watts, 459; Kramer v. Arthurs, Y Pa. 165.

      The agreement between John Crawford and William W. Crawford, dated July 24,1840, by which their differences were adjusted, provides as follows, viz.: — “Whereas there had been some dispute between us in relation to the land for which John Crawford was bound to make a title to his son, William W. Crawford. And in order to settle all further dispute and controversy on the subject and to fix a proper line between us. It is hereby now agreed by John Crawford of Fayette county, Pa., of the one part and his son William W. Crawford of the other part, that the said John Crawford shall make a good and sufficient deed in fee simple for 190 acres of the tract of land on which they both now reside to be run off as follows so as to include the part on which said William now resides, viz.: — Beginning at the Monongahela River at the corner between William Crawford, and brother of said John Crawford, thence by the courses and distances of the patent up the river to the coal bank of Henry Turner so as to include, the same, thence up the river hill to the top, thence along down the river on the top of the hill to a point from which by running a straight line across to the line between said John Crawford and his brother William Crawford so as to include in the whole 190 acres, thence by the line between said John and his brother William to the corner on the river, the place of beginning. The said William W. Crawford to have the privilege of running back under the land of said John Crawford from the coal bank of Henry Turner, reserving also sales already made to Turner and others as to mining by the said William W. Crawford. Said John Crawford to make said deed and survey on or before the first day of October next with notice to the said William W. Crawford, said survey to be made by the county surveyor or John I. Dorsey.”
    The deed made in pursuance of the said agreement is dated September 22,1840, and contains a description of the said 190 acres by courses and distances and also the provisions quoted last above in the agreement of compromise regarding the privilege of William W. Crawford running back under the land of John Crawford, etc. It will be observed that the Turner deed was made before and the John deed after September 22, 1840, but one of the other deeds offered in evidence, dated previous to September 22, 1840, recites such matter as indicates that William W. Crawford sold to John before the last-named date.
    Kef erring to the courses and distances set forth in the affidavit of Joseph Crawford, Jr., recorded with the above-mentioned bond, and the courses and distances set forth in the deed of September 22, 1840, and comparing plots offered in evidence that were made in pursuance thereof, it clearly appeared that the coal in question ivas not included in t’he conveyance of September 22,1840, and that the said rear property line of William W. Crawford was the western end of the coal in dispute.
    If conveyances had been made by John Crawford to William W. Crawford, as provided in said bond of February 18, 1830, the said rear property line would have been about 120 perches from the front line of the river.
    The surface tracts conveyed by William W. Crawford to Henry Turner et al. extends back from the river only from about twelve to eighteen perches, and the coal intended to be conveyed would extend, according to the claim of the defendant, considerably beyond what was under the surface lots — it was, in addition to what was under the surface lots, a narrow strip, from 200 to 300 feet wide, extending back from the rear line of the surface lots to the rear or eastern property line of John Crawford, noted in the above-mentioned affidavit of Joseph Crawford, Jr., as seventy perches in length, between a stone near the spring run and a stone in the division line between John Crawford and his brother William, a distance of from 102 to 107 perches from the rear line of the surface lots.
    According to the agreement of compromise of July 24,1840, and the deed made in pursuance thereof, it was definitely ascertained, determined and established for the first time, so far as appears from the evidence, that the said property line of William W. Crawford at the point in question was only 37.7 perches from the river, instead of about 120 perches, which would extend defendant’s coal back beyond the rear line of the surface lots from nineteen to twenty-four perches instead of from 102 to 107.
    The established facts satisfy us beyond a doubt that the said rear line was a bone of contention between John Crawford and William W. Crawford for years, and was not definitely determined until, the execution of the agreement of compromise in July, 1840, and the deed made in pursuance thereof in September of the same year, and we believe and conclude such condition was the occasion of the indefinite description and uncertain extent of the said coal, being described as “ the coal under the ground between said parallel lines continued in the same course as far back as the said William W. Crawford’s land extends,” and William W. Crawford having at most only a defeasible equitable title, the sales were made and the deeds accepted by Henry Turner et al. with the understanding that the rear line of their coal was to be the line finally determined and agreed upon as the rear property line of William W. Crawford, else why would the deeds not have expressed clearly that they were to extend to a certain, fixed, definite line which could easily have been done if defendant’s contention be correct, but which could not be done in any other way, manner' or language than that used, if the rear line of William W. Crawford was undetermined and the extent of his land ■ uncertain, as it was at the time the Turner and Searight deeds and Gideon John’s contract were made ?
    We think this conclusion is warranted by the principle stated by our Supreme Court in Meigs v. Lewis, 164 Pa. 597, cited by defendant, which holds that “ In construing a deed it is proper and sometimes necessary to consider the circumstances under which it is made for the purpose of ascertaining the intention of the parties,” which is abundantly sustained by a long line of decisions.
    In the same case, quoting from Lacy v. Green, 84 Pa. 514, we find: “ When the meaning of an agreement is doubtful its terms are to be considered in the light thrown on them by proved or admitted illustrative facts. The situation in which the parties stand, the necessities for which they would naturally provide, the conveniences they would probably seek to secure, and the circumstances and relations of the property, regard to which they have negotiated are all elements in the interpretation of an ambiguous contract.”
    It is earnestly insisted on the part of the defendant that the provision in the agreement of compromise and the-deed from John Crawford to William W. Crawford in 1840, as follows,, viz.: “ The said William W. Crawford to have the privilege of running back under the land of the said John Crawford from the coal bank of Henry Turner, reserving also the sales also made to Turner and others as to the mining, by the said William W. Crawford,” amounts to a conveyance of the title from John Crawford to the vendees of William W. Crawford for the coal between the rear line of William W. Crawford as established by the deed of September 22, and the. eastern line of John Crawford, which is the coal in dispute, which contention we cannot approve as it is lacking in the requisite formalities necessary and incident to a legal conveyance.
    What is the meaning of the expression, “ the said William W. Crawford to have the privilege of running back under the land of the said John Crawford from the coal bank of Henry Turner ” ?
    Adopting the contention of the defendant, barring conveyance, that it was intended, to extend to William W. Crawford and his grantees the right to mine and remove the coal in question, as well as the coal in rear of other lots, it develops a condition at once unreasonable, if not absurd, in limiting the privilege to “ the coal bank of Henry Turner,” as there were several other lots conveyed by William W. Crawford adjoining and fronting on the river for a distance of about one-third of a mile, -and defendant’s exhibits show that there were .several other banks, yet, under the above, all the coal back of what was established to be the rear line of the land of William W. Crawford would have to be brought out the Turner bank. We cannot conclude otherwise than that it was intended to be a personal privilege extended to William W. Crawford “ of running back under the land of the said John Crawford from the coal bank of Henry Turner.” For what purpose is not expressed, but doubtless for the purpose of taking out coal conveniently located, if an arrangement should be effected, along the line between the said William W. Crawford and Henry Turner for the use of the latter’s bank, and, in our opinion, it has no connection or reference whatever to any previous conveyance made by William W. Crawford, which conclusion we think is warranted by the clause next following the above quoted, viz.: “ Reserving also the sales already made to Turner and others as to mining by the said William W. Crawford.”
    If the clause quoted first above had been intended to refer to the Turner et al. conveyances, it could easily have been so expressed in language clear and ambiguous, and the second clause last above quoted “ reserving also,” etc., referring to the Turner et al. lots, indicates to our mind that the first clause does not have any reference to the Turner et al. lots.
    It is undoubtedly true if John Crawford had made conveyance to William W. Crawford in such way as to have given title to William W. Crawford to the line claimed by defendant as the rear line of William W. Crawford’s land such conveyance would have enured to the benefit of the defendant and its predecessors in title, and he would now be entitled to the property. But such uncertain and indefinite statement as relied on by the defendant quoted above cannot, in our opinion, be the basis for claim to title to real estate under the circumstances of this case.
    The language quoted above in one way almost warrants the conclusion that John Crawford, instead of ratifying and confirming the sales to Henry Turner and others by William W. Crawford, meant to repudiate such action and reserve to himself the right of making such conveyances as above indicated in “ reserving also the sales already made to Turner and others as to mining by the said William W. Crawford,” which can hardly be taken to mean a ratification, but is rather in the nature of a reservation, which-in law is said to be “an express withholding of certain rights, the surrender of which would otherwise follow or might be inferred from one’s act.” Applying the principles set forth in Bock Island By. Co. v. Bio Grande B. B. Co., 143 H. S. 596, to the effect that the meaning of a reservation must be determined in every case by the particular facts of the case, such as the character of the conveyance, the nature and situation of the property conveyed and of the property reserved or excepted and the purpose thereof, to the facts here, inclined us to doubt that the intention of the conveyance in question was to ratify and confirm the titles from John Crawford to the grantees in “ the sales already made to Turner and others ” by William W. Crawford.

      But grant that it is confirmatory in character, what does it confirm ? “ The sales already made to Turner and others.”
    What were the “ sales already made to Turner and. others ” %

    Certain surface lots and coal under them and under the ground in rear of them extending “ as far back as the said William W. Crawford’s land extends.”
    '• We now come to the most important question, viz.: How far does William W. Crawford’s land extend, or how far did it extend at the time of the execution of such deeds ?
    That is not fixed or certain, but is in controversy, uncertain,' indefinite, and the uncertainty attending it was current rumor in the community at the time of £C the sales made to Turner and others,” and it cannot be determined until their differences are adjusted, which is done in July, 1840.
    True, in view of the deed of September 22, 1840, we question the necessity of any confirmation of the Turner et al. deeds, and, if confirmed, it was doubtless occasioned by the fact of the previous and existing controversy attending when these deeds or the sales were made and was done at the suggestion and request of William W. Crawford or Turner et al. so as to free the matter from other or further question, and such confirmation did not apply beyond the line 37.7 perches from the river.
    Inasmuch, then, as the land of William W. Crawford does not and never did by any title other than a defeasible one, extend back to the line 120 perches from the river, claimed by the defendant as the rear line of the said coal lots, no conveyance of his could give title beyond his rear line, as definitely determined to be 37.7 perches from the river, and taking all the records and giving to each its fullest force we cannot discover such facts and conditions as warrant us in holding that the title to the coal in dispute ever passed from John Crawford down the line of conveyances, etc., claimed by the defendant, but we do find and conclude that the due and legal title to the coal in dispute, did pass from John Crawford down the line' claimed by the plaintiff and is now fully and completely vested in the La Belle Coke Company.

      Error assigned■ was in entering judgment on the verdict for the plaintiff.

      June 2, 1908 :

      H. L. Robmson, of Robinson, McKean & Martin, with, him R. W. Dawson, for appellant.
    In construing a deed it is proper and sometimes necessary to consider the circumstances under which it was made for the purpose of ascertaining the intention of-the parties: Meigs v. Lewis, 164 Pa. 597; Lacy v. Green, 84 Pa. 514.
    Words in a deed or written instrument should be taken most strongly against him whose words they are; Algonquin Coal Co. v. Coal & Iron Co., 162 Pa. 114.
    When the words used in the description in a deed .are uncertain and ambiguous and the parties have by their acts given a practical construction thereto, the construction put upon the deed by them may be resorted to, to aid in ascertaining their intention : Province v. Crow, 70 Pa. 199.

      Geo. D. Howell, of Howell, Sturgis & Morrow, for appellee.
   Opinion by

Mr. Justice Potter,

This was an issue in ejectment framed to try the ownership of the coal underlying a tract of land in Luzerne township, Fayette county, Pennsylvania. The trial judge directed a verdict for the plaintiff subject to a point of law reserved, and subsequently discharged a rule for judgment non obstante veredicto and entered judgment upon the verdict. The question raised by this appeal involves the proper construction of a title, bond or agreement of John Crawford, dated February 18, 1830, in which he agreed to convey about 200 acres of land to William W. Crawford. And as no deed was executed by John Crawford within the time stated in the bond, and as a controversy arose between John Crawford, the father, and William W. Crawford, his son, with regard to just how much or what was to be conveyed under the bond, and this controversy, the parties attempted and intended to settle by a compromise agreement dated July 24, 1840, it became necessary also to construe the terms of that compromise agreement.

The point in dispute was as to the limits of the coal tract; whether it ceased at the brow of the river hill or extended back of and beyond that line. During the continuance of the controversy in December, 1837, William W. Crawford sold a portion of the ground, and being uncertain as to the definite location of his line, in a deed to Henry Turner, he conveyed, as far back “ as the said William W. Crawford’s land extends.” From this it is plain that he intended to convey to the limit of his own title, wherever that might be. As the trial judge says, “ William W. Crawford having at most only a defeasible equitable title, his sales were made and the deeds were accepted by Turner et ah, with the understanding that the rear line of their coal was to be the line finally determined and agreed upon as the rear property line of W. W. Crawford.” The court below was of the opinion that under the bond for a deed given by John Crawford, specific performance could not have been enforced. We coincide with this view. The bond does not set forth the purchase price, nor the terms of payment, nor is there anything upon the surface of the paper to indicate what the purchaser was to perform. This in itself is enough to prevent specific performance. We are satisfied that the trial judge was right in his conclusion that any conveyance which might have been made by William W. Crawford must have been subject to the equities between him and his father, John Crawford. Nor are we able to find anything in the record to sustain the position which appellant’s counsel seem to have assumed, that William W. Crawford was in actual possession of the coal now in dispute. The contrary would seem to be true, for when the dispute was finally settled, in the compromise agreement of 1840, between the two Craw-fords, it was determined that the title of William W. Crawford did not extend beyond the line along the brow of the river hill. In that settlement, John Crawford agreed to make a deed “ to William for 190 acres of the tract on which they both now reside, to be run off as follows, so as to include the part on which said William now resides.” We do not understand that any of the coal now in dispute was included in the 190 acres above referred to ; and from the plots offered in evidence, it seems that the rear property line of W. W. Crawford is the western line of the coal in dispute. In the compromise agreement, and in the deed made in pursuance of it, there was a provision extending to William W. Crawford the privilege of running back under the land of the said John Crawford, but this the trial judge construed as being only a personal privilege to William, and not as a conveyance of the title to the coal. The language is not clear, but we cannot say that the court below was wrong in holding that the purpose was to permit William W. Crawford to take out such coal as he might need for his own use.

Counsel for appellant have contended with much force, that the proper construction of the original bond for title, and the language of the compromise agreement, and the various deeds offered in evidence, was sufficient to establish title to the coal in controversy, in the defendant. We are satisfied, however, from our examination of the record, that we would not be justified in reaching a conclusion in this respect, different from that reached by the trial judge. We can add nothing to his detailed discussion of the various papers offered in evidence, and their meaning and effect, as conveying the title from John Crawford. It would be fruitless for us to add to, or repeat what has has been well said, in this connection, in the opinion of the court below in entering judgment for the plaintiff. We coincide with the final conclusion, that the legal title to the coal in dispute did pass from John Crawford down the line, as claimed by the plaintiff, La Belle Coke Company.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Gray v. The Meadville & Cambridge Springs Street Railway Company, Appellant.
    Argued April 27, 1908.
    Appeals, Nos. 285, 301 and 302, Jan. T., 1907, by defendant, from judgments of C. P. Crawford Co., Feb. T., 1906, Nos. 90, 91 and 92, on verdicts for plaintiffs in cases of Henry Noel v. The Meadville & Cambridge Springs Street Railway Company, Mary Hickernell, a minor, by her father, Isaac Hickernell and Isaac Hickernell v. The Meadville and Cambridge Springs Street Railway Company and Somner Gray v. The Meadville and Cambridge Springs Street Railway compan}r.
    Before Fell. Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.

      May 18, 1908 :
   Per Curiam,

These eases arose out of the same accident as the case of Beckman v. Railway Co., 219 Pa. 26, and are governed by.it. .For the reasons there stated the judgment in each case.is re-„ versed and it is directed' that judgment be entered for the defendant in each non obstante veredicto.


author: Mr. Justice Fell,

text:
    Conroy v. City of Pittston, Appellant.

      Negligence — Municipality—Defect in street — Pleading—Statement of claim — Allegata and probata.

    In an action against a city to recover damages for injuries sustained by the plaintiff by stepping into an open sluiceway in a passageway from the end of a sidewalk to a bridge, it appeared that from the end of the sidewalk to the bridge was a hand rail, and that anyone walking over -the passageway at night and guided by the hand rail was in danger of stepping into the sluiceway. Plaintiff’s statement averred that at a point where a street crossed a stream by means- of a wooden bridge, the defendant had permitted to remain for several weeks “an unguarded opening or depression between the earthen part of the highway and the bridge plank.” Held, that there was no variance between the allegations and the proofs, and that the plaintiff was entitled to recover.
    Argued April 15, 1908.
    Appeal, No. 84, Jan. T., 1908, by defendant, from judgment of C. P. Luzerne Co., March T., 1905, No. 286, on verdict for plaintiff in case of Peter Conroy v. City of Pittston.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.
    The facts are stated in the opinion of the Supreme Court.

      The locality of the accident appears from the following drawings:

    Defendant presented this point:
    6. The declaration in this case alleges the defect in the highway to have been an unguarded opening between the earthen part of the highway and the bridge planking. The proof in this case is that a sluiceway eleven inches wide and nine and three-quarters inches deep extended from the end of the bridge into a paved gutter ten inches, the paving extending on three sides of the sluiceway. There is no evidence of an unguarded opening or depression between the earthen part of the highway and the bridge planking. Therefore, the verdict must be for the defendant; the answer of the court being:
    Denied without reading to the jury. [1]
    Yerdict and judgment for plaintiff for $2,500. Defendant appealed.

      Errors assigned were (1) in denying point as above and (5) in refusing binding instructions for defendant.

      8. J. Strauss, with him George F. O'Brien, for appellant.

      James L. Lenahcm, with him Frank A. Battle, Edward A. Lyneh and John.T. Lenaham,, for appellee.
    June 2, 1908:
   Opinion by

Mr. Justice Fell,

It appeared from the plaintiff’s testimony that he was injured by stepping into an open box or sluiceway constructed at the side of a city street and in a passageway provided from the end of a sidewalk to a bridge. The street ivas unpaved except for the space of five feet at the gutter at one side between the roadway and the footwalk. The bridge was of the width of the roadway only, and to prevent pedestrians from stepping off the end of the sidewalk into the stream there was a hand rail that extended diagonally from the outside of the sidewalk to the bridge. The sluiceway was eleven inches wide, ten inches deep, and extended from the bridge ten inches into the gutter, and was directly in the line in which travel was directed by the hand rail. It was not a gutter at a crossing where a break in the continuity of the pavement might be expected, but a hole in the footwalk provided, into which anyone directed by the hand rail was in danger of stepping. The plaintiff had no knowledge of the sluiceway and stepped into it late on a stormy night when the ground was covered with snow and he was following the course indicated by the hand rail. The case made out by him was clearly for the jury.

The main contention of the appellant is that a verdict should have been directed against the plaintiff because of a variance between his allegations and his proofs. The negligence alleged in the plaintiff’s statement was that at a point where a street crossed a stream by means of a wooden bridge, the defendant had permitted to remain for several weeks “an unguarded opening or depression between the earthen part of the highway and the bridge planking.” It is argued that the sluice-way was a' part of a special construction for the drainage of the street and not in a fair sense of the words “ an unguarded opening or depression,” and that since it was surrounded by the stone pavement of the gutter it was not “ between the earthen part of the highway and the bridge planking.” This contention cannot be sustained. The defect in the street proved was substantially that described in the statement.

The judgment is affirmed.


author: Mr. J ustice Elkin,

text:
    Greensboro Gas Company, Appellant, v. Home Oil & Gas Company.

      Corporations — Contract—Directors—Quorum—Ratification.
    A natural gas company cannot allege that a contract to sell its gas to another company is invalid and not binding because it was not approved at a meeting of the directors when a quorum was present, if it appears that negotiations leading up to the agreement were known to the members of the board of directors, that the other party had made large expenditures of money necessary to convey the gas to its mains, had appointed employees to read meters, had secured rights of way, and that both companies had treated the agreement as a valid contract and did everything required to be done under its terms for a considerable length of time.
    Argued May 11,1908.
    Appeal, No. 311, Jan. T., 1907, by plaintiff, from decree of C. P. Fayette Co., No. 498, In equity, dissolving preliminary injunction in case of Greensboro Gas Company v. Home Oil & Gas Company.
    Before Fell, Bkown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Bill in equity for an injunction. Before Umbel, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dissolving the injunction.

      H. L. Robinson, of Robinson, MeKeam, & Martin, for appellant.-
    -When the contract appears upon the face of the corporate records to have been authorized by the directors, a third person, in the absence of knowledge or of circumstances putting him upon inquiry, need not look further, but has a right to presume that the record correctly relates the facts and that the authority was formally given at a board meeting : Manhattan Hardware Co. v. Phalan, 128 Pa. 110; Manhattan Hardware Co. v. Roland, 128 Pa. 119.
    Even if irregularly entered into, the defendant company is estopped from repudiating the contract. It ratified it by its conduct: Gordon v. Preston, 1 Watts, 385; Manhattan Hardware Co. v. Phalen, 128 Pa. 110; Watts’s App., 78 Pa. 370.

      D. M. Hertzog, with him Gans & Jones, for appellee.
    Ratification of an unauthorized act of an agent must, to be valid, be the voluntary act of the principal, he at the time of the. supposed ratification being fully informed of all material facts and circumstances attending the unauthorized act, and such knowledge will not constitute a ratification if the act of the agent be forthwith repudiated by the principal: Pittsburg, etc., R. R. Co. v. Gazzam, 32 Pa. 340; Daley v. Iselin, 218 Pa. 515; Zoebisch v. Rauch, 133 Pa. 502; Moore’s Exrs. v. Patterson, 28 Pa. 505; Mechera, on Agency, sec. 148.
    June 2, 1908 :
   Opinion by

Mr. J ustice Elkin,

This is an injunction bill filed to restrain the respondent company from selling or disposing of the natural gas produced from certain wells to any person or persons other than the complaining company and from interfering or tampering with the connections and appliances which have been or may hereafter be placed by the complainant on the premises for the purpose of obtaining the gas from said wells. The whole controversy depends upon whether a valid contract was entered into between the parties for the purchase and sale of the gas in the first instance, or, if the negotiations between the parties did not amount to a binding agreement, was there such a ratification by subsequént acts as to make an enforceable contract. The learned court below, sitting as a chancellor, found as a fact that there was not a quorum present at the meeting of the board of directors, October 13, 1906, at the time a proposition was submitted by the complainant company to take all the gas produced by the two wells in question at the rate of four cents per 1,000 cubic feet, and concluded as a matter of law that nothing done or attempted to be done at that meeting would be binding on the respondent. We have concluded that this finding of fact apd conclusion of law were justified under the facts and that there was no such manifest error as to warrant a reversal of the decree on this account. The only remaining question is as to a subsequent ratification, and this we think is important. In order to fully understand the situation of the parties it will be necessary to briefly recite some of the facts. The complainant company was in the business of selling gas to consumers. The respondent had developed some gas territory and could supply a limited amount of gas, but had no customers or pipe lines to supply them. It was deemed advisable to make an arrangement to sell gas to a larger company, and these conditions led up to the negotiations between the parties to this controversy. A meeting was arranged for and held at Smithfield on the date above mentioned at which were present several members of the board of directors of the respondent company as well as representatives of the complainant company, and of another gas company. At this meeting a resolution was adopted appointing a committee of three to make an agreement with the complainant and report-to a future meeting. In this connection, it may be remarked, even if a quorum had been present, we do not agree that a resolution authorizing a committee to make and report an agreement is sufficient authority to authorize a committee so appointed to make and enter into a binding contract without reporting. The resolution evidently intended a preliminary agreement to be arranged by the committee and the final contract to be submitted for approval or disapproval at a future meeting. However, it is just as clear, that the board of directors were not only willing but anxious to make a contract for the sale of gas and took all the preliminary steps looking to the consummation of such an agreement. The committee so appointed, whether with proper authority or without it, did attempt to close a contract with the complainant embodying the terms upon which to sell and deliver all the gas produced from the wells specified. On October 29, 1906, two members of the committee so appointed met the officers of the complainant company and concluded a formal contract, under the corporate seals of the respective corporations, signed by their presidents and attested by their secretaries. The contract thus executed was on its face regular in form, properly executed and attested, and presumptively was what it purported to be, that is, a contract between the parties, and in such a case the burden is on the corporation attempting to repudiate its terms, to rebut the presumption by showing that the officers did not have the authority to bind the company by the contract so executed. This burden is met in the present case as the court below has found, but while the officers were not authorized to execute the contract, they went ahead under the contract and did undertake to carry out its terms. They secured rights of way for complainant to lay its pipes for the purpose of transporting the gas to the mains of complainant, and they permitted the complainant at a cost of more than $2,000 to make the connections in order to carry out the terms of the contract and appointed an employee to read the meter in connection with an employee of the complainant company so as to determine the amount of gas taken daily. The employees reported to their respective companies the amount of gas turned into the mains of the complainant company each day. In other words, both companies treated the agreement as a valid contract and did everything required to be done under its terms for a considerable length of time. The complainant tendered payment for the gas taken, which was refused by respondent on the ground that a valid contract did not exist between the parties because no quorum was present at the time the committee was authorized to make and report a contract. After due consideration we are of opinion that in view of the negotiations between the parties, known to the members of the board of directors, and presumptively to the stockholders, the expenditure of money on the part of complainant necessary to convey the gas to its mains, the appointment of employees to read the meters, the securing of rights of way, and all the other acts done in furtherance of the terms of the agreement, are sufficient in law to constitute a ratification of the contract attempted to be made, and which was in point of fact executed but without proper corporate authoritj7.

Decree reversed and record remitted to the court below with instructions that the injunction be made permanent as prayed for.


author: Mk. Justice Elkin,

text:
    Wirsing v. Smith, Appellant.

      Evidence — Exclusion of evidence — Relevancy—Collateral matters.

    Testimony relating to collateral matters not connected with the parties to the action, and without any relevancy to the issue is properly excluded.

      Assault — Civil action for damages for assault — Evidence—Record of conviction — Cross-examination.
    On the trial of a civil action to recover damages for personal injuries caused by assault and battery, where the defendant offers in evidence the record of his conviction of the crime and also testifies that he was serving a term in prison as a result of such conviction, and he offers this evidence in mitigation of punitive damages, the plaintiff may on cross-examination develop all the facts shown by the record, or by the testimony of defendant at the time the sentence was imposed.

      Assault — Civil action — Punitive damages — Record of conviction.

    On the trial of a civil action to recover damages for personal injuries resulting from an assault, punitive damages may be recovered if the facts warrant their imposition, and this even in a case where there has been a conviction of a criminal offense. In such cases the rule is that the record showing conviction and sentence may be offered in evidence, and considered by the jury in mitigation of exemplary damages.

      Practice, C. P. — New trial — Excessive verdict.

    As a rule, whether a new trial be granted or refused is a matter within the sound discretion of the court, and is not sufficient ground of reversible error unless for gross abuse.
    In an action to recover damages for assault, a new trial will not be granted on the allegation that the verdict of $45,000 was excessive •where it appears that the defendant deliberately shot at the plaintiff, three times with a Winchester rifle, injuring him twice and maiming him for life.

      Practice, C. P. — Verdict—Conditional verdict — New trial.

    The trial court may impose terms upon either or both the parties, as conditions of the grant or refusal of a new trial, and the latitude allowed to the discretion of the court to this end is very great.
    Where a verdict of $45,000 has been returned in an action of trespass for an aggravated assault and battery, the trial court does not abuse its discretion directing that a new trial be granted unless the plaintiff within ten days files a stipulation to accept in full satisfaction of his claim the sum of $35,000 to be paid or secured within thirty days after notice of the filing of the stipulation.

      Appeals — Practice, Supreme Court — Assignments of error — Erroneous assignments.

    It is improper to assign error as follows: “The court erred in omitting in its general charge to instruct the jury as requested by defendant by his counsel as follows:” setting forth a mere suggestion of counsel as to the duty of the court under the circumstances.
    It is erroneous and improper to assign error as follows: “The court erred in charging the jury as follows, special attention being directed to those portions of the charge inclosed in brackets:” setting forth the whole charge.
    Argued May 12, 19.08.
    Appeal, No. 43, Jan. T., 1908, by defendant, from judgment of O. P. Fayette Co., Dec. T., 1906, No. 34, on verdict for plaintiff in case of William S. Wirsing v. James R. Smith.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries caused by aggravated assault and battery. Before Reppert, P. J.
    At the trial it appeared that plaintiff, while under age, ran away with defendant’s daughter, about eighteen years old, and married her. The couple returned to the house of the plaintiff’s father. While there they received a letter from defendant expressing his forgiveness, and inviting them to dine on a day stated.
    The court in its charge described the assault as follows:
    In acceptance of this invitation the young man and his wife drove to Smithfield upon the day named, reaching there about 9:30 in the morning. After hitching the horse in the alley below the defendant’s house, they approached the front door. Just then the defendant called out, “ Is that Bill Wirsing ? ”— the plaintiff was on the portico — the defendant called out again, “Is that you, Bill Wirsing?” and the plaintiff stepped out about two steps. Mrs. Smith, the defendant’s wife, was just inside the door and called to her daughter, Martha, who had come to the door when the plaintiff and his wife had stepped up on the portico, to come inside. As the plaintiff stepped back the two steps he speaks of, he saw the defendant bringing his rifle around out of an upstairs window. The plaintiff jumped back just as the defendant fired, the shot taking effect in the third finger of the right hand, severing it, or almost severing it.
    After the shot was fired, the plaintiff told his wife that the best thing they could do was to stand there until the defendant started downstairs, and then try to escape up the street. They heard the defendant start across the room upstairs, and when he got to the head of the stairs they started to run up the street. The defendant came out of the house and fired the second shot, which missed. The plaintiff says he fell just as that shot was fired and it failed to take effect. A third shot was fired which took effect in the right arm of the plaintiff, and then a fourth, which missed.
    The plaintiff continued running, and by an alley, reached Grim’s butcher shop and asked to be concealed, disclosing his condition — that he had been shot. He remained there until his wife came, and he was then taken to a hotel across the way where his wounds were dressed, and whence he was removed to the hospital at this place.
    The plaintiff’s statement of the transaction is corroborated by his wife. Other witnesses,, attracted by the first shot, saw the defendant fire the three shots from the outside, in the street. They say that his .aim was deliberate, and that,between the shots he advanced up the street, returning to his house after the three shots were fired.
    ********
    The defendant'doesn’t deny that the encounter that resulted in the plaintiff’s injury took place substantially as the plaintiff alleges, nor is it denied that he is entitled to fair compensation for his injuries, as the jury may determine them to be. But it is claimed in his behalf that the circumstances are such as to prevent the imposition of exemplary or punitive damages ; that for a month prior to this trouble the defendant had given bimself up to the excessive indulgence in liquor, drinking from a quart to three pints per day, and that the marriage of his daughter, without his knowledge and consent, brought him great trouble and anxiety, and, in his condition, resulted in great nervous tension; that after learning that his daughter and Mr. Wirsing had left home, he and Mr. Sackett-went to Cumberland in the hope of intercepting them, and that while on that trip Mr. Sackett said the defendant drank several times while they were in Connellsville, and that during the trip his principal talk was about his daughter, crying and making considerable fuss and talk, as the witness expressed it: On June 5 the defendant was in Dr. Altman’s office, and the doctor says he was strongly under the influence of liquor, and that while he, the doctor, did not examine his physical condition, he prescribed for him for excessive drinking. The defendant related to the doctor the story of his daughter’s élopement. On the day of the shooting, after hearing of it, Mr. Sackett went to the defendant’s house and saw him for a few minutes, and found him lying on the bed and pretty stupid. The defendant says that when he wrote the letter to his daughter, inviting her and her husband and others to dinner, he meant what he said ; that when Wirsing and his wife arrived he was upstairs, reading a newspaper ; that he had been drinking, having taken a heavy-drink fifteen minutes before ; that when Wirsing drove past the sight of him made him so mad that he lost control of himself and his head began to roar, which was the last he remembered until his boy took the gun from him in the street; and that he knew nothing of what he did that day until his wife, the next morning, told him what had occurred.
    At the trial the defendant made the following offer :
    Mr. Hertzog: As a beginning of the course of conduct between the plaintiff and defendant, which continued in various ways up until the time that the shooting occurred, I propose to show by this witness, that four or five years ago a sister of the plaintiff wrote a letter to thé brother of the plaintiff’s wife, in which she stated that the reason' that their father, H. C. Wirsing, had purchased the farm from Mr. Smith, was that he wanted his daughter, who was writing the letter, to marry Joe, a son of the defendant, and his son Will to marry Malinda, a daughter of the defendant, and one of them could live on that farm, and Mr. Smith was able to buy the best property they could want in town for the others to live on, and it made no difference how much their “ pap,” meaning Smith, would oppose the marriage, they could arrange it to have them married, anyhow ; that they could run away to Cumberland and get married. This was followed by another letter in a short time, in answer to the first letter, and repeating, in substance, matters that she had suggested in the first, and that these letters were burned by Smith and his wife at the time they were received. This for the purpose of introducing the matters between the two families; leading him to believe that it was the plan of the father of those children to try to get them married to get control of his money; and is offered as one step in the general evidence to follow on up to the timfe the shooting occurred, to show the condition of mind Smith was in when the shots were fired, for the purpose of mitigating the punitive damages, the children at the time being eleven or twelve years of age.
    Mr. Crow: The plaintiff objects to the testimony as being incompetent and irrelevant, for the reason that it doesn’t connect William Wirsing with the transaction.
    The Court: Objection sustained and exception. [1]
    Mr. Crow: “ Q. Mr. Smith, I will ask you if at the time you were sentenced, the court didn’t make you the proposition that if you would settle with this young man — ■”
    Mr. Hertzog: We object. We want you to make that offer privately..
    Mr. Crow: The plaintiff offers to ask the defendant, if at • the time the sentence was imposed upon him the court did not state, that if within the term the case for damages was settled, a portion of the sentence, not exceeding one-half, would be remitted.
    Mr. Hertzog: The offer is objected to as incompetent and irrelevant, for the following reasons: First, the proposition so made by the court did not include in it any amount at which the case for damages should be settled. Second, that it is incompetent and irrelevant, generally; and third, the offer made was in the line of various attempts that had been made towards a settlement of the case between the parties, which had failed, and is, therefore, not competent evidence to be introduced here, being in the nature of a compromise offer.
    The Court: Objection overruled and exception. [2]
    Defendant presented these points:
    Punitive damages cannot be recovered in this action for the reason that the defendant has been sentenced to a long term of imprisonment, by the court of quarter sessions of this county, for the same act as that upon which this suit is based and which term of imprisonment he is now serving. Answer: Refused. [3]
    The plaintiff is only entitled to recover such amount in this action as will compensate him for the injury and loss sustained by him by reason of defendant’s conduct, and the jury cannot add an additional amount by way of punishment for the public crime committed by him. Answer: Refused. [4]
    Yerdict and judgment for plaintiff for $45,000. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3, 4) above instructions, quoting them.
    5. The court erred in omitting in its general charge, to instruct the jury as requested by defendant by his counsel as follows:
    Mr. Hertzog: The offer made on the part of the defendant, of the record of the cases in the quarter sessions of the peace of Fayette county against the defendant, was restricted in the offer, to the one purpose of the mitigation of punitive damages, and for this reason the counsel in his argument had no right to use it as he did — to claim that that offer, in effect, proved that the defendant committed this act willfully and maliciously, and that it, therefore, destroyed the effect of the defendant’s testimony as a witness in that regard. And it is further the duty of the court to so instruct the jury, as to withdraw from them, in its general charge, the right to use this offer for any other purpose than that to which it was restricted in the offer itself, and the defendant objects to its use for any other purpose.
    6. The court erred in overruling the motion to set aside the verdict as unreasonable and excessive, such action and refusal to grant the motion being a misuse and abuse of the court’s discretionary power in passing upon an application for a new trial.
    7. It was an abuse of discretion and, therefore, error on the part of the court below to not sustain defendant’s motion for a new trial upon the first reason assigned in support thereof, which motion and reason are as follows: The defendant, by his counsel, respectfully moves the court for a new trial, and assigns in support thereof the following reasons: 1. The verdict is excessive and unreasonable under all the evidence in the case.
    8. The court erred in making the following final order, to wit: November , 1907, this matter came on to be heard and was argued by counsel as on a rule to show cause why a new trial should not be granted.
    And now, December 2,1907, after consideration, it is ordered that a new trial be granted in this case unless plaintiff within ten days file a stipulation that he will accept in full satisfaction of his claim the sum of $35,000, to be paid, or security approved by the court to pay the same to be given, within thirty days after notice of the filing of said stipulation to defendant or his counsel.
    If said stipulation is filed and payment of said amount, with interest from the date of the verdict and costs, is not made or secured as aforesaid within thirty days, then judgment is to be entered on the verdict, as rendered upon payment of the jury fee. No payment was made or secured, and judgment was entered on the verdict.
    9. The court erred in charging the jury as follows; especial attention being directed to those portions of the charge enclosed in brackets ; quoting the whole charge.

      J. A. Lemgfitt, of Lemgfitt & McIntosh, and D. M. Hertzog, with them Smith <& Brownfield, for appellant.
    Punitive damages cannot be recovered in this action for the reason that the defendant has been sentenced to a long term of imprisonment by the court of quarter sessions of this county for the same act as that upon which this suit is based, and which term of imprisonment he is now serving: Austin v. Wilson, 58 Mass. 273; Hendrickson v. Kingsbury, 21 Ia. 379; Humphries v. Johnson, 20 Ind. 190; Lowell v. Short, 58 Mass. 275; Fox v. Ohio, 46 U. S. 410; Reg. v. Bird, 2 Denison, 94, 222; Windsor v. Queen L.R. 1 Q. B. 289; Huling v. Henderson, 161 Pa. 553; Sperry v. Seidel, 218 Pa. 16; Rhodes v. Rodgers, 151 Pa. 634; Cornelius v. Hambay, 150 Pa. 359; Fay v. Parker, 53 N. H. 342; Smith v. Overby, 30 Ga. 241; Stewart v. Maddox, 63 Ind. 51; Wabash Printing, etc., Co. v. Crumrine, 123 Ind. 89 (21 N. E. Repr. 904); Post Co. v. McArthur, 16 Mich. 447; Murphy v. Hobbs, 7 Colo. 541 (5 Pac. Repr. 119); Spokane Truck, etc., Co. v. Hoefer, 2 Wash. 45 (25 Pac. Repr. 1072); Boyer v. Barr, 8 Neb. 68.
    The verdict was excessive: Marion v. Chicago, etc., Ry. Co., 64 Iowa, 568; Goldsmith v. Sefton, 3 Anst. 808; Graham & Waterman on New Trials, 43.

      W. E. Crow, of Crow do Shelby, for appellee.
    Exemplary damages may have been given in trespass whenever there has been oppression, outrage or vindictiveness on the part of the trespasser. And if there be such evidence, the jury, and not the court, are to determine whether it is a proper case for exemplary damages: McBride v. McLaughlin, 5 Watts, 375; Amer v. Longstreth, 10 Pa. 145; Huling v. Henderson, 161. Pa. 553; McCarthy v. De Armit, 99 Pa. 63; Railway Company v. Rozenzweig, 113 Pa. 519-544; Railway Company v. Lyon, 123 Pa. 140; Cornelius v. Hambay, 150 Pa. 359; Voltz v. Blackmar, 64 N. Y. 440.
    The verdict is not excessive: L. S. & M. S. Ry. Co. v. Rosenzweig, 113 Pa. 519; Stauffer v. Reading, 208 Pa. 436; Smith v. Times Pub. Co., 178 Pa. 481.
    The conditional order of the court below was proper: Fleming v. Dixon, 194 Pa. 67; Campbell v. Bridge Co., 23 Pa. Superior Ct. 138; Stauffer v. Reading, 206 Pa. 479.
    June 2, 1908 :
   Opinion by

Mk. Justice Elkin,

The first and second assignments of error, as we view the case, are without merit. The first is based upon the refusal of the court to admit the introduction of testimony relating to collateral matters, not connected with the parties to the action, nor had it any relevancy to the issue, and it was properly excluded. As to the second, it may be observed, that the defendant had offered in evidence the record of his conviction for a criminal offense growing out of the shooting, and followed this up by going on the stand for the purpose of ’showing that at the time of the trial of the present case he was serving out the term for which he had been sentenced, and this in mitigation of punitive damages. Under these circumstances no harm was done, nor was it reversible error to permit the plaintiff, on cross-examination, to develop all the facts shown by the record or by the testimony of defendant at the time sentence was imposed.

The third and fourth assignments relate to the right of plaintiff, under the facts of the case, to recover punitive damages. It is contended that because defendant had been convicted of a criminal offense, growing out of the same acts, and was serving a term of imprisonment for his crime, punitive damages should not be allowed in the civil action. The answer is, apart from the views of text-writers on this question, of which there are many reaching different conclusions, and independently of the rule established by courts in other jurisdictions, and in this there is no uniformity, it is settled law in Pennsylvania that punitive damages may be recovered if the facts warrant their imposition, and this even in a case where there has been a conviction of a criminal offense: Portor v. Seiler, 23 Pa. 424; Cornelius v. Hambay, 150 Pa. 359; Rhodes v. Rodgers, 151 Pa. 634; Matheis v. Mazet, 164 Pa. 580. In such cases the rule is, that the record showing conviction and sentence may be offered in evidence, and considered by the jury, in mitigation of exemplary damages, and this was done in the present case. -

The fifth assignment is not in proper form, does not show anything before this court to review and will not be considered. The sixth and seventh assignments complain of the refusal of the court below to grant a new trial on the ground that the verdict was unreasonable and excessive. As a rule, whether a new trial be granted or refused is a matter within the sound discretion of the court, and certainly is not sufficient ground of reversible error unless for gross abuse, and this does not appear in the case at bar. Nor are we convinced that the conditional order of the court below, after trial and verdict, complained of in the eighth assignment, would justify a reversal of the judgment entered in the present case. The learned trial judge evidently followed the rule of our own cases in this respect in a well-meaning effort to have the matters in dispute between the parties finally determined. In Fleming v. Dixon, 194 Pa. 67, our Brother Brown, in passing upon a conditional order made by the court below and not accepted by defendant, said, “ the relief tendered was refused. The order of court providing for it was made for the benefit of the defendant now complaining of it, and we overrule his second assignment of error.” In Stauffer v. Beading, 206 Pa. 479, the present chief justice, in reviewing the discretionary power of courts in granting or refusing new trials, among other things, said : “ Hence it is well settled that the court may impose terms upon either or both of the parties as conditions of the grant or refusal, and the latitude allowed to the discretion of the court to this end is very great.” It is clear, therefore, that the learned court below was well within the rule of our own cases in this respect, and certainly should not be convicted of error for doing what this court has said he had the right to do in the proper exercise of his judicial discretion.

The error suggested in the ninth and last specification cannot be considered, because the assignment is not in proper form and does not bring before this court anything for consideration. The circumstances under which defendant maliciously and brutally assaulted plaintiff, with the evident intention to take life, and the murderous attack having seriously and permanently disabled him, justified the court in submitting the question of punitive damages to the jury, which, was done in a careful charge defining the application of the rule. It may be that the jury took into consideration the aggravated, unwarranted and felonious character of the shooting in rendering their verdict, but this they had the right to do, and it is not for us to say that there was reversible error on the sole ground of the verdict being excessive, for if there ever was a case in which a, jury was justified in returning a large verdict, not only as compensation for the injury done, but as a punishment to the offender, this would seem to be the one.

Judgment affirmed.


text:
    Funk v. Kerbaugh, Appellant.

      Negligence — Blasting—Damages—Punitive damages.

    Too great caution cannot be exercised in permitting the recovery of punitive damages for the willful or reckless act of a servant not authorized or approved by the master. The rule that permits a recovery in such cases is a harsh one, and the plainest principles of justice call for caution in its application. While this is so, punitive damages will be allowed against a corporation whose superintendent persists recklessly and defiantly for months in using unusually heavy blasts of dynamite with full knowledge that they are shattering and practically ruining a house and bam, and apparently does the work in this way because it is cheaper to pay damages for the injuries the heavy blasts may cause than to do the work in a different way.
    Argued May 18, 1908.
    Appeal, No. 213, Jan. T., 1907, by defendant, from judgment of C. P. Lancaster Co., Nov. T., 1905, No. 92, on verdict for plaintiff in case of Isaac S. Funk v. H. S. Kerbaugh, Incorporated.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover' damages for injuries to property, real and personal. Before Hassler, J.
    The opinion of the Supreme Court states the case.
    The verdict was as follows :
    And now, to wit: December 6, 1906, we, the jurors empaneled in the above case, find in favor of Isaac S. Funk, and against II. S. Kerbaugh, Incorporated.
    Damages as follows:
    To house......................$2,000.00
    To barn...................... 1,800.00
    To crops..........'............ 25.00
    Removing stone.................. 75.00
    For mule...................... 150.00
    Impunity damages................. 1,000.00
    $5,050.00
    Judgment was entered upon the verdict. Defendant appealed.

      Error assigned was in permitting the jury to return a verdict for punitive damages.

      W. U. Sensei, with him Philip T. Meredith and Eramik 8. Groff, for appellant.

      S. Frank Eshleman and William S. Keller, with them John A. Goyle, for appellee.
    June 2, 1908 :
   Per Curiam,

The main question presented by this appeal is whether a recovery of punitive damages should have been allowed. The action was to recover for injuries to the plaintiff’s property caused by the negligent and-recldess' acts of the defendant in blasting rocks in constructing a line of railroad. At a place 1,100 feet from the plaintiff’s building an'excavation was made 2,200 feet long and, at places, eighty feet deep through solid rock of great hardness. In blasting this rock holes were drilled to an average depth of thirty feet and charges of 4,000 pounds of dynamite were set off simultaneously. The testimony produced by the plaintiff tended to show that the work could have been done in the usual: manner by lighter blasting without injury to his property; that the heavy blasting shattered and practically ruined his house and barn; that the use of heavy blasts was persisted in, recklessly and defiantly for months notwithstanding his complaints.

Too great caution cannot be exercised in permitting the recovery of punitive damages for the willful or reckless act of a servant not authorized or approved by the master. The rule that permits a recovery in such cases is a harsh one and the plainest principles of justice call for caution in its application: Phila. Traction Co. v. Orbann, 119 Pa. 37. But in this case the acts complained of were done by direction of the defendant’s superintendent after notice and with full knowledge of the damage they were doing the plaintiff’s property. Apparently they were done in wanton disregard of his rights and because it was cheaper to pay damages for the injury they might cause than to do the work in a different way.

We find no error in the record that calls for a reversal.

The judgment is affirmed;


text:
    Eshleman, Appellant, v. Union Stock Yards Company.

      Negligence — Stockyards—Communication of diseased cattle' — -Texas fever — Cattle regulations — Nonsuit.
    The “Regulations Concerning Cattle Transportation,” issued by the secretary of agriculture, are ineffectual in this state, inasmuch as the legislature has not co-operated with the secretary of agriculture in their enforcement.
    The keeping of an animal having an infectious disease is not per se culpable, and a person keeping such an animal cannot be held liable for the death of other animals resulting from infection from the animal in question, unless it appears that he had knowledge of the existence of the infectious disease in his own animal, and that the spread of the disease and the resultant loss was due to his negligence.
    In an action to recover damages from a stockyard company, for the death of cattle caused by Texas fever, it appeared that on Texas or southern cattle there is at times a parasite called a tick. To the southern cattle it is harmless. Being brought north by southern cattle, after it is in this country, it falls from the animals to the ground and lays its eggs in grass or other material. The eggs are hatched out, the young ticks crawl onto the domestic cattle, and these cattle become infected by the tick biting them. Under the act of congress of May 29, 1884, Texas fever is specifically excepted from the class of infectious diseases. A railroad company ran into the defendant's yard two carloads of cattle, described merely as southern cattle, to be fed and watered. These cattle were placed in two pens belonging to a dealer, overnight, and then forwarded. The dealer subsequently placed his own cattle in the pens and these cattle were afterwards sold to plaintiff, in whose possession they died from Texas fever. The interval between the time the southern cattle were placed in the pens, and the northern cattle placed therein was sufficient for the eggs of the ticks to hatch out. There was no affirmative proof that the cattle bought by plaintiff were in fact infected from the pens in question. Held, (1) that the evidence was insufficient to show negligence on the part of the defendant; (2) that the plaintiff had no cause of action against the defendant even if the cattle became infected in the pens, inasmuch as the injury was to the dealer, and no right of action for negligence would pass through the dealer to the plaintiff; and (3) that a nonsuit was properly entered.
    In all actions of negligence, he who is guilty of the wrong is liable for the damage sustained to anyone injured by the wrongful act. He is responsible, however, to him to whom the wrong is done, and not to those who suffer the remote consequences of it. If, while in the possession of either real or personal property, an injury is done to that property, the right of action is alone in the then owner, and not in any successor in the title.
    Argued May 18, 1908.
    Appeal, No. 263, Jan. T., 1907, by plaintiff, from order of C. P. Lancaster Co., Jan. T., 1905, No. 8, refusing to take off nonsuit in case of Samuel Eshleman v. The Union Stock Yards Company.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of cattle from Texas fever.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Landis, P. J., filing the following opinion :
    This action for damages by the plaintiff rests upon the basis that the defendant company permitted cattle with Texas ticks upon them to be placed in its yards, and thereby Texas fever was communicated to cattle which he subsequently purchased, with the results that some of them died. The stock yards and cattle pens — which are owned by the Pennsylvania Railroad Company, but are leased by it to the defendant company— are located along the line of the Pennsylvania Railroad, adjacent to the city of Lancaster. These yards are used by shippers and wholesale dealers in cattle, and the plaintiff has been accustomed, for some time, to buy his stock there. Martin H. Flickinger was one of these wholesale dealers who did business at these yards and certain pens, numbered Nos. 59 and 31, were generally used for his cattle and were known as his pens. On Saturday evening, June 21, 1904, two carloads of cattle, containing forty-four head, from St. Louis, came to the stock yards. They were billed to Philadelphia, and were marked, “ Off at Lancaster to feed and water.” They had been purchased for slaughter purposes. These cattle were taken from the cars and placed in the rear of these so-called Flickinger pens, where they remained overnight. On the following morning (Sunday), they were moved to the lower part of the yards, to what is called the “ willow ” pen. Flickinger, receiving notice of their arrival at the stockyards, came to Lancaster on Monday morning, and directed the superintenclent of the yard to ship the cattle to their destination. Upon seeing them he said : “ I see they are tick cattle. . . . Take caution with them ; they are not lawful to handle, unless you clean the pens right, and do the right thing.” They were taken from the willow pen, placed in cars and shipped to Reading, where they were killed at the Reading abattoir. There was no evidence of any mark upon the cars which brought them to Lancaster, but it was testified that the manifest showed that they were southern cattle, and it was proven that there were ticks upon them. After they were unloaded at Lancaster, fat cattle of F. C. Musser were placed in the same cars and shipped to New York.
    On August 3, 1904, Flickinger sold to the plaintiff thirteen head, of butcher cattle. He had purchased them from S. B. Iledgen & Company, of Pittsburg, on August 1. On August 10, 1904, he sold to the plaintiff a second lot of ten or eleven cattle, and August 17 a third lot of nine head. All of these cattle were apparently placed, with his consent, in, and were sold out of, pens Nos. 59 and 31. The second lot was bought from a man by the name of Hoover, who also deals at the yards, and were taken from Hoover’s pens and placed in Flickinger’s pens, and the third lot was bought from Musser. Flickinger stated that, while he did not examine the cattle particularly for ticks, they seemed to him at the time he sold them to be clean and healthy ; and Musser says that the cattle he sold to Flickinger were apparently healthy cattle. The cattle were bought by Eshleman in the morning, taken out and weighed, and put back into the Flickinger pens until afternoon or evening, and then driven away by Eshleman. Eshleman kept the first lot about two weeks in pasture. He then sold eight of them to Daniel S. Leib, but only delivered seven. The one he retained died a few days after. Six of those thus sold to Leib died and were replaced with four other cattle, and Eshleman promised to replace the other two. Of the second lot all died. Some had been sold outright by Eshleman to other parties and paid for ; but three had been contracted to Martin Doster, and four to a Mr. Hummer. Of the third lot two died, one of which was contracted to John Ruhle. It was shown that there were Texas ticks upon all the cattle that died.

      The evidence showed that Texas or southern cattle have at times upon them a parasite which is called a “ tick.” To the southern cattle it is harmless. Being brought north by southern cattle, after it is in this country, it falls, from the animals to the ground and lays its eggs in grass or other material. The eggs are hatched out, the young ticks crawl on to the domestic cattle, and these cattle become infected by the tick biting them. The original tick, after it lays its eggs, dies, and no harm can result from it; but it is the progeny of the dead tick that causes the infection and produces Texas fever in the domestic cattle. For the hatching of the eggs and for the process of incubation of the disease about thirty days is the minimum time. One witness said that it takes twenty-eight or thirty days until the young tick is able to crawl on the animal, and in about ten days thereafter symptoms of the disease appear. Although the plaintiff’s statement alleges that the defendant “ carelessly and negligently, and. without having first properly disinfected and cleaned said pens, lanes and alleys, caused and permitted other cattle not infected with said germ, parasite or tick, .... to be driven through the aforesaid lanes and alleys and to be confined in the same pens in which the said infected cattle had been confined,” there was no proof presented that the pens, lanes, alleys had not been disinfected, nor was there any evidence that they had not been cleaned. There was no proof that any ticks were found by anyone in these pens, Nos. 59 and 31, or upon any cattle while in the pens. The inference is made that, because, on June 21 and 22, the cattle of Flickinger, which had ticks upon them, were overnight in the rear of these two pens, and were afterwards driven through the yard to the willow pen, and thence to the cars, therefore the plaintiff’s cattle, placed in the same pens from August 3 to 1Y, or driven through the yard, became infected, by reason of which some of them died. These were the facts upon which the plaintiff insists that the defendant company is liable for the loss sustained. But two questions seem to be involved in this case: The first is, whether there was any carelessness or negligence proved against the defendant company ; and the second is, whether, even this be so," the plaintiff is in a situation to recover damages from the defendant company.

      There was no evidence presented that the cattle which were purchased by Flickinger at St. Louis in June, 1904, were Texas cattle. All that was elucidated upon that subject was, that, in the manifest, they were marked as .southern cattle. They may, or may not, have come from an infected district. The principle, therefore, which has been held by some courts and denied by others, that judicial notice will be taken of the fact that Texas cattle have some contagious or infectious disease communicable to native cattle, cannot be invoked. There is no presumption in this case against the defendant.
    The cattle were consigned to Philadelphia, but were to be left off at Lancaster to feed. This was done on the evening of Saturday, June 21. The railroad company, under the act of congress of .March 3, 1873, chap. 252, sec. 1, was not permitted to confine in its cars cattle carried or transported from one state to another for a longer period than twenty-eight consecutive hours, without unloading the same for rest, water and feeding for a period of at' least five consecutive hours, unless prevented by storm or other accidental causes. The unloading of the cattle, therefore, at Lancaster, for the purpose of watering and feeding them, was proper, and no liability attaches on that account.
    There is no statute in Pennsylvania relating to Texas fever as such, though there are laws preventing the sale of diseased cattle, and the “ State Livestock Sanitaiy Board ” is authorized to prohibit their importation and to make and enforce rules and regulations in relation to contagious or infectious diseases as may from time to time be required. There is no evidence that any rules have been adopted which affect this controversy. There has'been no act of congress presented that imposes liability, though certain rules of the United States bureau of animal industry were offered and admitted in this case. These rules were supposed to have been authorized by the act of congress, known as the “ Animal Industry Act,” of May 29, 1884, chapter 60. By the first section of that act, the commissioner of agriculture was directed to organize in his department a bureau of animal industry, to appoint a chief thereof, who should be a competent veterinary surgeon and whose duty it should be to investigate and report upon the condition of the domestic animals of the United States, their protection and use, and also to inquire into and report the causes of contagious, infectious and communicable diseases among them, and the means for the prevention and cure of the same, and to collect such information on these subjects as should be valuable to the agricultural and commercial interests of the country; and by section 3, it was made the duty of the commissioner to prepare such rules and regulations as he might deem necessary for the speedy and effectual suppression and extirpation of said diseases, and to certify such rules and regulations to the executive authority of each state and territory, and invite said authorities to co-operate in the execution and enforcement of the act; and whenever the plans and methods of the commissioner should be accepted by any state or territory in which pleuro-pneumonia or other contagious, infectious or communicable disease is declared to exist, or such state or territory should have adopted plans and methods for the suppression and extirpation of said diseases, and such plans and methods should be accepted by the commissioner, and whenever the governor of a state or other properly constituted authorities signify their readiness to co-operate for the extinction of any contagious, infectious or communicable disease in conformity with the provisions of this act, the commissioner was- authorized to expend as much of the money appropriated by the act as might be necessary in such investigations, and in such disinfection and quarantine measures as might be necessary to prevent the spread of the disease from one state or territory .into another. If any authority exists in the commissioner to make rules and regulations, it is under section 3, above recited, but it has been held, by the United States supreme court, in Reid v. Colorado, 187 U. S. 137 (Mr. Justice Harlan delivering the opinion of the court), that “ Congress did not assume to declare that the £ rules and regulations ’ which that department might adopt as necessary £ for the speedy and effectual suppression and éxtirpation of said diseases ’ should have in themselves, or apart from the action of a state, any binding force upon the states. They were to be certified to the executive authority of each state, and the co-operation of such .authorities in executing the act of congress invited. If the authorities of any state adopted the plans and methods devised by the department, or if the state authorities adopted measures of their own which the department approved, then the money appropriated by congress could be used in conducting the required investigations and in such disinfection and quarantine measures as might be necessary to prevent the spread of the diseases in question from one state or territory into another. Congress did not intend to override the powers of the state to care for the safety of the property of their peoples by such legislation as they deemed appropriate. It did not undertake to invest any officer or agent of the department with authority to go into a state and without its assent take charge of the work of suppressing or extirpating contagious, infectious or communicable diseases there prevailing and which endangered the health of domestic animals.” In Mullen v. Western Union Beef Company, 49 Pac. Repr. 425, the plaintiff introduces in evidence an order, called “ Regulations Concerning Cattle Transportation,” issued by the secretary of agriculture, and it was held, by the court of appeals of Colorado, that such regulations were ineffectual in any state which did not co-operate with the secretary in their enforcement, and, in the absence of such co-operation, were outside of his authority. Upon the same general question is the case of Illinois Central Railroad Company v. McKendree, which was decided by the supreme court of the United States, on December IT, 1906, but has not yet been reported. These regulations should not have been admitted upon the trial, and they will, therefore, not be considered in arriving at our conclusion upon this rule.
    There being, therefore, an absence of statutory authority to sustain the plaintiff’s cause of action, if recovery can be liad, it must be by force of the common law. The rule of the common law is, that knowledge is indispensably necessary to a recovery, and that negligence must be proven. The keeping of an amimal having an infectious disease is not per se culpable. The right of anyone to use his own property as he pleases for all purposes to which such property is usually applied is unlimited and unqualified, up to the point where the particular use becomes a nuisance. Hence, the keeping of animals having an infectious disease on one’s own property, although the adjoining premises have upon them other animals which are likely to be infected by the disease, is not unlawful, nor will it give the owner of the adjoining premises a cause of action for damages sustained in consequence of the disease being so communicated to his animals, unless the person owning the diseased animals knows the fact that they are diseased and is guilty of some negligence in the manner of keeping them: Fisher v. Clark, 41 Barbour (N. Y.), 329; Mill v. N. Y. & H. R. R. Company, 41 N. Y. 619. Even the keeping of diseased animals on the defendant’s uninclosed lands, to which other animals are in the habit of coming, and where it is no trespass for them to come, it is not an act of negligence, if the owner of the healthy animal is duly warned of his danger: Walker v. Herron, 22 Texas, 55; 1 Thompson on Negligence, section 917. Except where the owner knows that it is probable that the animals may intrude on an adjoining inclosure, or the statute law forbids a man keeping his diseased cattle in his own pasture, he will not be liable for injury to cattle in an adjoining pasture, unless negligent in the manner of keeping his own: Cyclopedia of Law, p. 332; 22 Am. and Eng. Ency, of Law, p. 380; Herrick v. Gary, 65 Ill. 101. Nothing can be better settled than that, if one do a lawful act upon his own premises, he cannot be held responsible for injurious consequences that result from it, unless it was so done as to constitute actionable negligence: Rockwood v. Wilson, 65 Mass. 221.
    In this case, the railroad company had a right to transport these cattle, even though there were ticks upon them. The sixth section of the act of congress of May 29, 1884, enacts : “ That no railroad company within the United States, or the owners or masters of any steam or other vessel or boat, shall receive for transportation or transport from one state or territory to another, or from one state into the District of Columbia, or from the District into any state, any livestock affected with any contagious, infectious or communicable disease, and especially the disease known as pleuro-pneumonia, nor shall any person, company or corporation deliver for such transportation to any railroad company, or master or owner of any boat or vessel, any live stock, knowing them to be affected with any contagious, infectious or communicable disease, nor shall any person, company or corporation drive on foot or transport in private conveyance from one state or territory to another, or from any state into the District of Columbia, or from the District into any state, any livestock, knowing them to be infected with any contagious, infectious or communicable disease, and especially the disease known as pleuro-pneumonia; provided that the so-called splenetic or Texas fever shall not be considered a contagious, infectious or communicable disease within the meanings of sections four, five, six and seven of this Act as to cattle being transported by rail to market for slaughter, when the same are unloaded only to be fed and watered in lots on the way thereto.” As the proof in this case showed that these cattle were for slaughter, and were put off in the yards of the defendant to be fed and watered, they did not fall within the act of 1884, and were not to be considered as affected with any contagious, infectious or communicable diseases, even though the tick was on them as stated.
    Did, then, the evidence show negligence on the part of the defendant company ? Outside of cases in which a positive obligation is cast upon a carrier to perform safely a special exercise, the presumption is, that the party has exercised such care as men of ordinary prudence and caution would exercise under similar circumstances, and if he has not, the plaintiff must prove it: The Nitro-glycerine Case, 82 U. S. 524. The duty of a railroad company, in regard to the transportation of freight and passengers and the carrying on of a stock yard in order to facilitate its business, is twofold, the latter being independent and distinct from the former. The business of a stock-yard corporation, except in the character of the property which is the subject of bailment, corresponds in many respects with the business of warehousemen: Delaware, Lackawanna and Western Railroad Company v. Central Stock Yard Co., 45 N. J. Equity, 50. A warehouseman is liable only for negligence in preserving the property deposited with him: McCarty v. N. Y. & Erie R. R. Co., 30 Pa. 247. Their responsibility as warehousemen is but for ordinary neglect. Shenk v. Philadelphia Steam Propeller Co., 60 Pa. 109; Tower v. Grocers’ Supply and Storage Co., 159 Pa. 106. Stock yards are not public markets: 26 Am. & Eng. Ency. of Law, p. 1074. It, therefore, seems to us that the plaintiff was bound to show, not only that the cattle were placed in the rear end of Flickinger’s pens overnight on June 21, 22, but that they containinated the pens, and the defendant company did not, as set forth in the plaintiff’s statement, disinfect and put them in proper condition again. ' It is presumed that it did its duty, and there is no evidence to the contrary. In addition, it was not shown that the cattle which Elickinger sold to Eshleman on August 3, 10 and 17, received their infection from these pens; non constat that they might not have derived the ticks from some other cause. Without any definite proof upon the subject, we are asked to infer, first, that the ticks from Flickinger’s cattle were dropped into the pens or driveways on June 21, 22, and, secondly, that those ticks produced another brood, which got upon the cattle sold to Eshleman in the following August. Thus we have an inference upon an inference in order to sustain this action, and no conclusive inference at that.
    The next point is, as we have said — conceding, for the purpose of'the discussion, the question of negligence — whether the plaintiff is in position to maintain the action. The cattle that died, when placed in these pens, belonged to Flickinger. This is conceded. They were sold out of the pens to, and were taken away by, Eshleman. The mere fact that they were taken to the scales and weighed and then brought back and allowed to remain until Eshleman thought fit to remove them an hour or two later, cannot in any wise affect the principles which govern the case. . It is true that the general rule of the law is, that whoever does an illegal act is answerable for all the consequences which ensue, in the ordinary and natural course of events, though those consequences be brought about by intervening agents, provided such agents were set in motion by the primary wrongdoer, or provided those acts causing the damage were the necessary or legal and natural consequences of the wrongful act: Filer v. Smith, 96 Mich. 347; Eaton v. Winnie, 20 Mich. 156. Thus, to put falsely labeled poison upon the market, to be used by anyone who may need the articles named in the label, is negligence, rendering the defendant liable to any person injured, whether the immediate vendee or not: Thomas v. Winchester, 6 N. Y. 397. Or, as in a case where the defendants were engaged in selling meats, and sold plaintiff’s brother a roll of spiced bacon, and he took it to the plaintiff’s house, where he boarded, and plaintiff’s wife cooked it for breakfast, and the bacon was in fact spoiled and unfit for food, and made plaintiff sick, on the assumption that the defendant knew that the meat was purchased for consumption and was negligent in selling it, it was held that there was a good cause of action : Craft v. Parker, Webb & Company, 96 Mich. 245. See, also, 26 Am. and Eng. Ency. of Law, pp. 461, 462. But, on the other hand, it is decided that answerable negligence exists only where the party whose negligence occasions the loss owes a duty arising from contract or otherwise to the person sustaining the loss: Kahl v. Love, 37 N. J. L. 5. Therefore, in Losee v. Buchanan, 51 N. Y. 476, it was held that, if an explosion is caused by a defect in the manufacture of a boiler, the manufacturer is not liable, in the absence of proof that such defect was known to him, or was discovered upon examination or by application of known tests; and in Curtin v. Somerset, 140 Pa. 70, that, in order that a person who,has been injured by an accident may hold another responsible therefor upon the ground of negligence, there must be a casual connection between the negligence and the hurt, and such casual connection must be uninterrupted by the interposition between the negligence and the hurt of any independent human agency. In this case, a contractor for the erection of a hotel building, who used improper material in its construction and in other respects departed from the specifications embodied in his contract, so that the building when completed, was structurally weak and unsafe, was determined not to be liable to a guest of the hotel for an injury caused to him by such defective construction, but occurring after the owner had taken possession. To the same effect are Fitzmaurice v. Fabian, 147 Pa. 199; and First Presbyterian Congregation v. Smith, 163 Pa. 561. It seems to us to be clear that there may be, in some instances, a recovery without regard to privity of contract. In all actions of negligence, he who is guilty of the wrong is liable for the damage sustained by anyone injured by the wrongful act. He is responsible, however, to him to whom the wrong is done, and not to those who suffer the remote consequences of it. If, while in the possession of either real or personal property, an injury is done to that property, the right of action is alone in the then owner, and not in any successor in the title. The recent case of Moore v. City of Lancaster, 212 Pa. 642, determines this principle. Following, then, the same to its logical conclusion, the plaintiff would have no cause of action, if the wrong was occasioned while the property was owned by Flickinger. It must be recollected that it is not contended that the infection was communicated from the defendant’s pens to the cattle that were placed therein and by that means conveyed to other cattle belonging to the plaintiff. The evidence is, that the disease was conveyed to cattle owned by Flickinger, but which Eshleman subsequently bought. If Eshleman obtained the cattle from Flickinger contaminated — and no evidence to the contrary appears, for they were in the pens as Flickinger’s cattle for the purposes of sale — he took them in the condition in which they then were, and no right of action for negligence would pass through Flickinger to him. No case similar to this one has been cited to, nor found by us, and there is no principle that we know of which permits a stretching of the law to the extent which the plaintiff here endeavors to maintain. We are of the opinion that the judgment of nonsuit was properly entered, and we now refuse to take it off.
    Rule discharged.

      Error assigned was refusal to take off nonsuit.

      D. MMullen and John E. Malone, for appellant.
    Defendant was guilty of negligence: Herrick v. Gary, 65 Ill. 101; Grimes v. Eddy, 126 Mo. 168 (28 S. W. Repr. 756); Larimore v. R. R. Co., 65 Mo. 167.
    If negligent, defendant was liable in damages to Samuel Eshleman, plaintiff: Devlin v. Smith, 89 N. Y. 470; Coughtry v. Globe Woolen Co., 56 N. Y. 124; Carson v. Godley, 26 Pa. 111; Pittsburg v. Grier, 22 Pa. 54; Godley v. Hagerty, 20 Pa. 387; Schubert v. J. R. Clark Co., 15 L. R. A. 818; Heizer v. Mfg. Co., 15 L. R. A. 821; Skinn v. Reutter, 97 N. W. Repr. 152.

      W. U. Uensel, with him Coyle <& Keller, for appellee.
    No negligence on part of defendant was shown : Mullen v. Beef Co., 49 Pac. Repr. 425; Reid v. Colorado, 187 U. S. 137 (23 Sup. Ct. Repr. 92); Illinois Cent. R. R. Co. v. McKendree, 203 U. S. 514; Fisher v. Clark, 41 Barbour, 329; Mill v. R. R. Co., 41 N. Y. 619; Walker v. Herron, 22 Texas, 55; D., L. & W. R. R. Co. v. Stock Yards Co., 45 N. J. Eq. 50 (17 Atl. Repr. 146); Shenk v. Propeller Co., 60 Pa. 109; Tower v. Grocers’ Supply, etc., Co., 159 Pa. 106; McCarty v. R. R. Co., 30 Pa. 247; Nitro-glycerine Case, 82 U. S. 524.
    Another insuperable objection to plaintiff’s recovery was his failure to prove that the cattle were his when the alleged injury was suffered: Curtin v. Somerset, 140 Pa. 70; Fitzmaurice v. Fabian, 147 Pa. 199; First Presbyterian Congregation v. Smith, 163 Pa. 561; Kahl v. Love, 37 N. J. Law, 5; Moore v. Lancaster, 212 Pa. 642.
    June 2, 1908 :
   Per Curiam,

We are of opinion that the testimony offered at the trial did not establish the plaintiff’s right to recover, and that a nonsuit was properly entered for reasons stated in the opinion of the learned trial judge.

The judgment is affirmed.