author: Mr. Justice Brown,

text:
    Paul, Appellant, v. Philadelphia & Reading Railway Company.

      Negligence — Railroads—Contributory negligence — “Stop, look and listen” rule — Duty to listen.

    1. The unbending rule as to the duty of a traveler on a public highway, as he approaches a railroad crossing over it, is to stop, look and listen. He must listen as well as look, for conditions may be such that though, when he stops at a proper place and looks, he cannot see a coming train, he yet must hear it if he listens. And if he then, in spite of what he hears, walks or drives on into almost instant collision with the train, he is as guilty of contributory negligence as if he had plainly seen its coming.
    2. In an action to recover damages for personal injuries the court properly directs a verdict for the defendant railroad company where it appears that the plaintiff, a man of good hearing, while driving on a public road on a calm and peaceful night, with nothing to interfere with the noise made by the moving of railroad cars, stopped about thirty feet from a railroad crossing and then was struck while crossing the track by a train of twenty-eight coal cars, with the engine nearly in the middle, moving upgrade at the rate of four or five miles an hour, and where from the testimony of one of plaintiff’s own witnesses it is clear that if he did not hear the train it was because he was not listening.
    Argued Feb. 15, 1911.
    Appeal, No. 22, Jan. T., 1911, by plaintiffs, from judgment of C. P. Schuylkill Co., Nov. Term, 1905, No. 288, on verdict for defendant by direction of the court in case of Henry Paul, in his own right, and Edward Paul, by his father and next friend, Henry Paul, v. The Philadelphia & Reading Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bechtel, J.
    The facts appear in the opinion of the Supreme Court.
    The court directed a verdict for the defendant.

      Error assigned was in directing verdict for defendant.

      C. E. Berger, with him M. M. Burke, for appellant. — ■
    The case was for the jury: Davidson v. Ry. Co., 171 Pa. 522; McNeal v. Ry. Co., 131 Pa. 184; Laib v. R. R. Co., 180 Pa. 503; Cromley v. R. R. Co., 208 Pa. 445; Beach v. R. R. Co., 212 Pa. 567; Ely v. Ry. Co., 158 Pa. 233; Howard v. R. R. Co., 219 Pa. 358; Rottmund v. R. R. Co., 225 Pa. 410; Bickel v. R. R. Co., 217 Pa. 456; Sloan v. Ry. Co., 225 Pa. 52.

      April 10, 1911:

      John F. Whalen, for appellee,
    cited: Holden v. R. R. Co., 169 Pa. 1; Gleim v. Harris, 181 Pa. 387; Gangawer v. R. R. Co., 168 Pa. 265; Mulvaney v. Pittsburg Rys. Co., 213 Pa. 343; Blotz v. R. R. Co., 212 Pa. 154; Dryden v. R. R. Co., 211 Pa. 620; Yevsack v. R. R. Co., 221 Pa. 493; Moose Brewing Co. v. R. R. Co., 36 Pa. Superior Ct. 549; Phila., Wilm. & Balt. R. R. Co. v. Stinger, 78 Pa. 226; Walsh v. R. R. Co., 222 Pa. 162; Anspach v. Ry. Co., 225 Pa. 528.
   Opinion by

Mr. Justice Brown,

The unbending rule as to the duty of a traveler on a public highway, as he approaches a railroad crossing over it, is to stop, look and listen. He must listen as well as look, for conditions may be such that though, when he stops at a proper place and looks, he cannot see a coming train, he yet must hear it if he listens. And if he then, in spite of what he hears, walks or drives on into almost instant collision with the train, he is as guilty of contributory negligence as if he had plainly seen its coming. “The law requires a listening, as well as a looking, for a coming train, and obscuration of vision is no defense against a failure to listen:” Penna. R. R. Co. v. Mooney, 126 Pa. 244. The present case is an apt illustration of the wisdom of this rule and calls imperatively for its application.

Between eight and nine o’clock on a dark and foggy night, in the fall of the year, Edward Paul, the injured plaintiff, and a companion were driving on a public road, with which they were familiar, and, according to their testimony, stopped about thirty feet from the point where the track of the defendant company crossed the road and looked and listened for an approaching train. It is admitted that-where they stopped, their view in the direction from which the train that struck them was coming was obstructed by a building, but we need not dwell upon this in passing upon their alleged contributory negligence, for both testified that there was no light' upon the train, and, if they were to be believed as to this, in the face of positive testimony to the contrary, they could not have seen the train if they had stopped and looked at a point beyond the obstruction. While, from their testimony, the failure of the railroad company to have a headlight on its train prevented their seeing its approach, they have shown naught to excuse them for not having heard its coming when it was almost upon them, as they stopped within thirty feet of the track. The appellant admits that, his hearing was good, that the night was calm and that there was nothing to prevent his hearing any noise at the time he and his companion stopped to listen for a coming train. Under the undisputed facts about to be stated the only possible conclusion to be reached is that they must have heard the notice that a train was about to pass over the crossing which they were approaching, and, in the face of such notice — which the law conclusively presumes they heard — it is idle for them to say that they did not hear and that the collision was not due to their own heedlessness.

The train which collided with the team consisted of an engine and twenty-eight empty coal cars. The engine was not at the head of the train, but was pushing ten of the cars and pulling the remaining eighteen. It was approaching the crossing on an upgrade, moving at the rate of four or five miles an hour, and the testimony of the engineer, the fireman, the brakeman and another witness was that about 1,500 feet west of the crossing the whistle was sounded to give notice of its approach. The negative testimony of appellant and his witness was that they did not hear the whistle; but we need not discuss the weight to be given to the positive testimony of the four witnesses, for, on undisputed evidence, the plaintiff and his companion must have heard the coming of the train if they were giving the slightest attention to the duty resting upon them to listen. The twenty-eight cars, with the engine nearly in the middle of them, were coming toward the crossing on an upgrade, and the night was calm and peaceful, with nothing to interfere with the noise made by the moving of the cars. In Hess v. Williamsport & North Branch Railroad Co., 181 Pa. 492 — a somewhat similar case — the situation is thus aptly described: “The fires under the boiler were doing their work; the stroke of the lever was kept up; the exhaust of the engine did not cease; the rumbling of the wheels on the rails was not muffled.” In the face of these conditions the appellant testified that they did not hear “a sound of a train approaching,” and his companion corroborated him. In the light of human observation and experience, the learned trial judge properly refused to allow a jury to believe them. If they truthfully testified that they did not hear a sound, it was because they were not listening, but were intent on something else when their duty was to listen, and the consequences of what immediately followed their disregard of that duty — which they admit they knew was resting upon them — are not to be visited upon the defendant.

From the testimony of one of plaintiff’s own witnesses— George Hoffman — it clearly appears that, if he did not hear the train, it was because he was not listening. That witness testified that, though he was seated in an office twice as far from the crossing as the point at which the plaintiff and his companion stopped to look and listen, he heard the train coming. After the plaintiff’s admission that his hearing was good, that the night was perfectly calm and there was nothing to interfere with his hearing any noise as he sat in an open part of the wagon, he was asked to explain why he had not heard the approach of the train, and his answer was that the rattling of the tailboard of the wagon might have prevented his hearing it. When the wagon stopped there could have been no such rattling, and while it was in motion, with the horse walking, there could have been little, if any. When still further pressed on his cross-examination, he admitted that he could not say positively that the tailboard had rattled, and, if it had not, he was unable to account for his failure to hear the noise made by the train. The collision occurred the instant the front feet of the horse were upon the track, and, as it conclusively appears that it would have been avoided if the plaintiff had been exercising his sense of hearing, he has himself to blame for what befell him.

The assignment of error is overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Moschzisker,

license: Public Domain

text:
    Commonwealth v. Colandro, Appellant.

      Criminal law — Murder—Evidence—Trial—Offer—Blending of admissible and inadmissible evidence.

    1. The ordinary rule that where an offer blends irrelevant and inadmissible matters with matters relevant and admissible, its rejection as a whole is not error, ought not to be summoned to sustain a ruling prejudicial to the interests of a defendant on trial for murder.

      Criminal law — Murder—Charge—Self-defense—Burden of proof— Preponderance of evidence — Necessity for accepting version of either side.

    2. In trying a murder case, the court should have two principles in mind to communicate to the jury for their guidance, namely, (1) that while all the ingredients necessary to prove the commonwealth’s case must be shown beyond a reasonable doubt, (2) this severe rule does not apply in considering an affirmative defense; there a fair preponderance of the evidence in favor of the defendant is sufficient.
    3. Where a defendant in a murder trial sets up self-defense and undertakes to establish his excuse, the evidence relied upon, whether it comes from his side, or from the commonwealth’s side, or from both, must, when weighed, show by its fair preponderance the extenuation sought to be established, in order to acquit.
    4. In such a case the trial judge commits no error in saying that the burden of proving self-defense is upon the defendant and that it would have to be shown to the satisfaction of the jury, but he should add that they would only have to be satisfied by the fair preponderance of the evidence.
    5. In a murder case the jury is not bound to accept the version of the commonwealth or the version of the defense. It is their duty to consider all the testimony and to make up their minds therefrom as to the facts.

      Criminal law — Murder—Voluntary manslaughter — Terror.
    6. On a murder trial where self-defense is set up as a defense for the killing, but there is also evidence from which the jury might infer 'that the killing was in consequence of sudden terror from threats, it is reversible error for the court to tell the jury that self-defense is the only issue, and to eliminate the possibility of manslaughter.
    7. Voluntary manslaughter is a homicide intentionally committed under the influence of passion. The term “passion” as here used includes both anger and terror provided they reach a degree of intensity sufficient to obscure temporarily the reason of the person affected. Terror from the belief on the part of the slayer that his life is in danger is sufficient, though such belief is not reasonable. ■
    8. The border line between self-defense and this character of man- ' slaughter seems to be the existence as the moving force of a reasonably
    founded belief of imminent peril to life or great bodily harm, as distinguished from the influence of an uncontrollable fear or terror, conceivable as existing, but not reasonably justified by the immediate circumstances. If the circumstances are both adequate to raise and sufficient to justify a belief in the necessity to take life in order to save one’s self from such a danger, where the belief exists and is acted upon, the homicide is excusable upon the theory of self-defense; while, if the act is committed under the influence of an uncontrollable fear of death or great bodily harm, caused by the circumstances, but without the presence of all the ingredients necessary to excuse the act on the ground of self-defense, the killing is manslaughter.

      Crirninal Law — Murder—Reasonable doubt.

    9. The defendant in a murder trial is not only entitled to any reasonable doubt which may arise' upon an ultimate consideration of the evidence remaining after the testimony deemed unworthy of belief has been sifted out, but to the benefit of every reasonable doubt which may enter the mind of the juror upon the consideration of any item of evidence during the process of such sifting out.

      Criminal law — Murder—Trial—Charge—Particular deeds — Reputation — Review of evidence.

    10. In a murder trial the court is in error in charging that, “Previous good character to be of any avail is like any other material question of fact in a lawsuit. It must be properly proven. The evidence upon which defendant relies for proof of previous good reputation must satisisfy you as a matter of fact that he had such a. good reputation,” as this puts the matter covered too strongly against the defense, for in the criminal law the word “satisfy,” when used without qualification, may be taken to mean, to convince beyond a reasonable doubt.
    11. In such a case in charging on this point, the jury should be told that the defendant is entitled to begin with the presumption that he had a good reputation, and that in considering the testimony produced to reinforce this presumption all reasonable doubts are to be resolved in Ms favor. In appropriate cases they should also be informed concerning the proper bearing of certain references to particular offenses other than the one on trial, that inquiries as to these are for the purpose of ascertaining the opportunities, sources and extent of the knowledge of the respective witnesses on the point of the general reputation of the defendant and not to show that the defendant was probably guilty of these other offenses. Such instructions are peculiarly required in a murder case where defendant’s character witnesses, after testifying to his good reputation as a peaceful, quiet man, are asked on cross-examination concerning defendant’s alleged kidnaping of a girl two years prior to the homicide.
    12. Upon a trial for murder the judge should give a general review of the evidence on the one side and the other, which fairly and adequately presents the respective contentions of the parties, with enough references to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing. But the manner in wMch the evidence shall be dealt with must of necessity depend upon the circumstances in each case, and to a degree upon the line of arguments pursued by counsel in addressing the jury. It is only, in exceptional instances, where, for example, it plainly appears that the charge is misleading, or that it has a tendency to withdraw the attention of the jury from material evidence, or to magnify the importance of the proofs on one side and belittle those on the other, that a trial judge will be reversed for inadequacy of charge in reviewing the evidence.
    Argued Feb. 20, 1911.
    Appeal, No. 353, Jan. T., 1910, by defendant, from judgment of O. & T. Lackawanna Co., October Session, 1910, No. 13, on verdict of murder of the first degree in case of Commonwealth v. Dominic Colandro.
    Before Mestkezat, Pottek, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Indictment for murder. Before Newcomb, J.
    The opinion of the Supreme Court states the facts.
    Verdict of guilty of murder of the first degree and judgment thereon. Defendant appealed.
    The errors assigned are sufficiently indicated in the opinion.

      H. L. Taylor, of Taylor & Lewis, and A. A. Vosburg, for appellant.
    Evidence that deceased was in the habit of going armed with deadly weapons and that this fact was known to his slayer is admissible in behalf of the latter: King v. State, 65 Miss. 576 (5 So. Repr. 97, 7 Am. St. Rep. 681); State v. Graham, 61 Iowa, 608 (16 N. W. Repr. 743); Com. v. Keller, 191 Pa. 122; 3 Rice on Evidence, 580; Kerr on Homicide, sec. 400; Meyers v. Com., 83 Pa. 131.
    April 10, 1911:
    There is no greater burden on the accused to establish self-defense by affirmative evidence than any other defense; but if all the evidence raises a reasonable doubt as to whether he acted in self-defense, he should be acquitted: Henson v. State, 112 Ala. 41 (21 So. Repr. 79); Lane v. State, 44 Fla. 105 (32 So. Repr. 896); Dent v. State, 105 Ala. 14 (17 So. Repr. 94); State v. Alexander, 66 Mo. 148; State v. Hill, 69 Mo. 451; People v. Riordan, 117 N. Y. 71 (22 N. E. Repr. 455); Briceland v. Com., 74 Pa. 463; Turner v. Com., 86 Pa. 54; Tiffany v. Com., 121 Pa. 165.
    We have been unable to find any case which sustains the proposition that the reasonable doubt must arise only from the evidence which the jury believe. We think that the universal rule is that it must arise upon the consideration of all the evidence in the case taken together: Tiffany v. Com., 121 Pa. 165; Smith v. Compton, 67 N. J. Law, 548 (52 Atl. Repr. 386); Moore v. Dozier, 128 Ga. 90 (57 S. E. Repr. 110); Kimmel v. Kimmel, 3 S. & R. 336; Hanney v. Com., 116 Pa. 322.
    The learned court was in error in his charge to the jury to the effect that the reputation of the appellant was his reputation among his acquaintances: Heine v. Com., 91 Pa. 145; Hanney v. Com., 116 Pa. 322.
    ■ C. P. O’Malley and Joseph O’Brien, district attorney, for appellee.
   Opinion by

Mr. Justice Moschzisker,

The defendant, Dominic Colandro, an Italian workingman, came to this country in 1902, and at the time of the homicide, May 23, 1910, he was about thirty years of age. He testified that, about three months prior to the killing, Ferdinand Rocco, the deceased, had met him and demanded the sum of $200; that shortly thereafter he again met the defendant, produced a revolver, and threatened to kill him unless the demand was complied with; that on the day before the killing Rocco came to the defendant’s house and told him that unless the money was paid he would be killed, which demand and threat were repeated on the afternoon of the day of the homicide; that immediately before the killing a messenger came and informed the defendant that Rocco wanted to see him; that the defendant refused to leave his house, and the messenger returned and said that Rocco would give him just ten minutes to come out; that another messenger then came and informed him that if he did not come out the deceased would come to the house and kill him within five minutes; that the defendant came out and met Rocco, who again demanded the money; that he became frightened and went back into his house and put his shotgun in the kitchen; that within a few minutes after this Rocco came to the kitchen door and pushed it open, told the defendant that he was going to kill him and started to shoot into the room with a revolver; that the defendant, fearing that he was in danger of losing his life, took up his gun and fired the fatal shot, and the deceased staggered back against a fence and fell over into the next yard dead.

According to the commonwealth’s testimony, on the day before the killing Rocco had charged the defendant with having improperly secured $30.00 from another Italian and demanded that it be returned, stating that if the defendant did not return the money a certain Italian society would take the matter up; the defendant showed some feeling and told the deceased that it was none of his business; on the next day Rocco was visiting his mother, and when he left the house of the latter to go to his own home he was obliged to pass close by the defendant’s door; the latter suddenly came out of his house with a gun and pointing it directly at Rocco shot him before there had been any words exchanged between them. The commonwealth claimed that it was a cold-blooded murder, and the defendant that he was in great fear at the time of the killing and shot to defend himself.

The first assignment is that the court erred in refusing the following offer: “Counsel for the defendant proposes to prove .... that the decedent went armed, carried a revolver, and on the night preceding this affair he met the witness on the stand, attempted to shoot him, demanding money from him at the same time; for the.purpose of showing that the dead man went armed and carried a revolver.” A number of witnesses for the commonwealth testified that Rocco had no revolver at the time of the killing, and his brother-in-law testified positively that the deceased did not own one, evidently using the word “own” in the sense of “possess.” Whether or not Rocco had a revolver was a material issue in the case, and if he had been seen with such a weapon on the night before the killing, it would at least have been some evidence to indicate that he possessed one. The offer was refused on the ground that as a whole it tended to introduce “a collateral issue entirely extrinsic to the issue on trial.” While the ordinary rule is that where an offer blends irrelevant and inadmissible matters with a matter relevant and admissible, its rejection as a whole is not error, yet in Com. v. Bezek, 168 Pa. 603, referring to this rule, we said: “But in deciding the question raised by the specification we shall not take into consideration the rule supported by the cases cited. These are civil cases and if the rule stated in them is applicable to, it ought not to be summoned to sustain a ruling prejudicial to the interests of a defendant on trial for murder.” So much of the offer as was relevant should , have been admitted. The fact that some inseparable, incidental, collateral facts, irrelevant in. themselves and prejudicial to the prosecution, might thus be caused to appear, would not make the competent part any the less admissible: Willis v. Bernard, 8 Bingham, 376. The possibility of prejudice could be sufficiently cured by restricting the use: Connecticut River Power Co. v. Dickinson, 74 Atl. Repr. 585; Dalton v. Dregge, 99 Mich. 250. The first assignment is sustained.

The second assignment complains that the trial judge said to the jury, “The burden of proving self-defense is on the defendant. To make out that defense he must prove it to your satisfaction. His claim rests on the assertion that Rbcco was on the platform and at the kitchen door, where it is claimed he had fired several shots with a revolver under circumstances that put the defendant in fear of his own life or of great bodily harm. If the evidence so satisfies you, then he is entitled to be acquitted and your verdict will be not guilty, otherwise, you will find him guilty of murder and fix the degree according to instructions to be given you presently. I can see no basis for a claim of self-defense other than that which is put forward by the defendant, and that makes it necessary that he satisfy you that his version of the shooting is correct.” Previous to this the court had said to the jury that self-defense was “the one issue” arising from the evidence, and that the possibility of “manslaughter” was not in the case.

There was no error in saying that the burden of proving self-defense was upon the defendant and that it would have to be shown to the satisfaction of the jury: Com. v. Palmer, 222 Pa. 299; Ortwein v. Com., 76 Pa. 414; Coyle v. Com., 100 Pa. 573; Com. v. Wireback, 190 Pa. 138; Alexander v. Com., 105 Pa. 1; Com. v. Ferruchi, 219 Pa. 155. But the learned trial judge should have added that they would only have to be satisfied by the fair preponderance of the evidence. Where a defendant sets up self-defense and undertakes to establish his excuse, the evidence relied upon, whether it comes from his side, or from the commonwealth’s side, or from both (Wharton on Homicide, 3d ed., pp. 552-553), must, when weighed, show by its fair preponderance the extenuation sought to be established, in order to acquit: Com. v. Palmer, 222 Pa. 299. In trying a case of this character, the court should have two principles in mind to communicate to the jury for their guidance, namely, (1) while all the ingredients necessary to prove the commonwealth’s case must be shown beyond a reasonable doubt, (2) this severe rule does not apply in considering an affirmative defense; there a fair preponderance of the evidence in favor of the defendant is sufficient: Meyers v. Com., 83 Pa. 131; Com. v. Deitrick, 218 Pa. 36.

It was error to tell the jury that self-defense was the only issue, and to eliminate the possibility of manslaughter; and again, it was error to say that it was necessary for the defendant to satisfy the jury that his version of the shooting was correct. In a murder case the jury are not bound to accept the version of the commonwealth or that of the defense; it is their duty to consider all the testimony and to make up their minds therefrom as to the facts. It was possible in this case that the jury might have found that there was a certain amount of' truth in the evidence produced by the commonwealth and some truth in that produced by the defense, but that neither side was wholly to be believed. On this theory, the jury might have believed the story of the threats to take defendant’s life, and that he was put in great fear by such threats; that when he saw Rocco coming toward him it raised a passion of terror in his mind, and he shot under the control of that passion. Yet, at the same time, they might not have believed that Rocco had crossed the fence and advanced as far as the defendant’s kitchen door, or that he had actually fired pistol shots into the room. Under such a state of facts the prisoner would have been guilty of manslaughter and not of murder.

“Voluntary manslaughter is a homicide intentionally committed under the influence of passion ....:” 21 Am. & Eng. Ency. of Law (2d ed.), 172. “The term 'passion’ as here used includes both anger and terror provided they reach a degree of intensity sufficient to obscure temporarily the reason of the person affected:” 21 Am. & Eng. Ency. of Law (2d ed.), 173. “Passion, as used in a charge defining manslaughter .... means any of the emotions of the mind known as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection:” 6 Words & Phrases, p. 5227. “Although ‘anger’ is the passion usually existing in cases of this class, yet any other passion, as sudden resentment or terror, rendering the mind incapable of cool reflection, may reduce the grade of the crime:” 21 Cyc. 737. “Passion which will reduce homicide to manslaughter may consist of either anger .... or terror. . . . The terror from the belief on the part of the slayer that his life is in danger is sufficient, though his belief is not reasonable:” Wharton on Homicide (3d ed.), sec. 194. “In U. S. v. Heath, 20 Dist. Col. 272, on appeal, the court approved the following instruction: “So that you have two theories that would reduce the crime to manslaughter: One is the blow was struck in the heat of passion . . . . ; the other is, if it was struck under an apprehension of danger, but the apprehension of danger was not reasonable. . . .” This doctrine is also recognized in Howard v. State, 23 Tex. App. 265, and in Com. v. Drum, 58 Pa. 9, where, at page 21, it is said: “Or, from .... an uncontrollable fear seizing him, but without such an excusable necessity as I have described he drew out the knife and struck the blow without malice, he will be guilty of manslaughter only.” Finally, in Com. v. Curcio, 216 Pa. 380, a case in which the facts were strikingly like those at bar, the present chief justice, in reversing the trial court for refusing to charge on manslaughter, said: “If the jurors believed the defendant’s statement they might have found that the shooting was done without malice and under the influence of sudden anger, caused by the assault, or of terror caused by the threats. ... It was, therefore, error to refuse an instruction as to manslaughter and to instruct the jury that the defendant, having admitted the shooting, was guilty of murder unless he did it in self-defense. This testimony was not limited to the plea of self-defense, it went directly to the mitigation of the crime.”

“The state of the evidence may be such as to call for-an instruction both on manslaughter and self-defense:” 21 Cyc. 1076. Although in the present case it might have been improbable that the jury would accept the theory of manslaughter, yet where under the evidence such a contingency is possible, it is error to eliminate that grade of homicide from the charge: Com. v. Curcio, 216 Pa. 380. While the evidence might not have been sufficient to satisfy the jury that the plea of self-defense had been sustained, it might have appealed to them as sufficient to negative or to throw such a doubt upon the element of malice as to reduce the crime to manslaughter. Therefore, in addition to the instruction on the law of self-defense, the jury should have been told, if they found that at the time of the shooting the defendant was not actuated by malice, but that he acted under the influence of an uncontrollable mortal fear raised by the threats and conduct of Rocco, and if they thought that the immediate circumstances, though adequate to raise the fear, were not sufficient reasonably to justify a belief on the part of the defendant that he was in immediate' danger of death or great bodily harm, the grade of the crime would not rise higher than manslaughter. The dividing line between self-defense and this character of manslaughter seems to be the existence, as the moving force, of a reasonably founded belief of imminent peril to life or great bodily harm, as distinguished from the influence of an uncontrollable fear or terror, conceivable as existing, but not reasonably justified by the immediate circumstances. If the circumstances are both adequate to raise and sufficient to justify a belief in the necessity to take life in order to save oneself from such a danger’, where the belief exists and is acted upon, the homicide is excusable upon the theory of self-defense: Com. v. McGowan, 189 Pa. 641; while, if the act is committed under the influence of an uncontrollable fear of death or great bodily harm, caused by the circumstances, but without the presence of all the ingredients necessary to excuse the act on the ground of self-defense, the killing is manslaughter: Com. v. Drum, 58 Pa. 9. The second assignment is sustained.

In sustaining the second assignment we have not overlooked the fact that the trial judge said to counsel for the defense, “You do not claim there is any ground for manslaughter, you do not claim that there was any heat of blood from sudden provocation?” And that counsel replied, “We have not any evidence of it, no, sir.” And that the court then said, “I understood your client to say in response to your question that he fired because he was afraid.” To which counsel replied, “Yes, that is the idea.” The difficulty is that both court and counsel appear to have overlooked the fact that under some circumstances a passion of fear would have the same effect in reducing the crime to manslaughter as a passion arising upon sudden “heat of blood.” In view of this apparent mutual misconception, we cannot permit the rights of the defendant to be prejudiced. Particularly is this so, when the record discloses more than one offer of evidence for the purpose of showing that the alleged threats and conduct of the deceased had put the defendant “in fear,” and had “scared” the defendant, and when the testimony of the defendant is that he shot because “I was afraid that he would kill me.”

We see no reversible error in the matters called to our attention by the third assignment.

The fourth assignment complains of the following instructions: “A reasonable doubt, is one which remains in the mind .... of a juror after fairly and impartially considering all the evidence pro and con, sifting out any, if there be any, which he deems unworthy of belief, and then basing his judgment upon such part of the evidence which he deems worthy of belief; if his mind still hesitates to come to a conclusion of the defendant’s guilt, he is in a state of reasonable doubt, and that is the doubt to the benefit of which the defendant is entitled.” The vice of this instruction lies in the last phrase, “that is the doubt to the benefit of which the defendant is entitled.” The defendant is not only entitled to any reasonable doubt which, may arise upon an ultimate consideration of the evidence remaining after the testimony deemed unworthy of belief has been sifted out, but to the benefit of every reasonable doubt which may enter the mind of the juror upon the consideration of any item of evidence during the process of such sifting out. Although the trial judge had previously instructed that the defendant was entitled to the benefit of any reasonable doubt that might arise on a consideration of the entire evidence in the case, we cannot say that .the present assignment is free from harmful error. The assignment is sustained.

The fifth assignment is that the court erred in charging: “Are you satisfied that those of the witnesses called for that purpose, and who did say that his previous reputation was good, had knowledge of the general speech of the people among the defendant’s acquaintances, and are those who would be likely to know what his reputation was?” This part of the charge is criticised owing to the use of the phrase “the defendant’s acquaintances.” Immediately before, the court had said, “In order to testify to any man’s reputation in the community where he has lived, it is necessary that the general speech of the people be known to the witness.” In view of this, the excerpt complained of cannot be characterized as reversible error, and the assignment is dismissed.

While on the subject of reputation, as this case must be retried, we take occasion to point out that the learned trial judge should not have said to the jury that, “Previous good character to be of any avail is like any other material question of fact in a law suit. It must be properly proven. The evidence upon which the defendant relies for proof of previous good reputation must satisfy you as a matter of fact that he had such a good reputation.” This, either standing alone or with its context, was putting the matter covered rather too strongly against the defense, for in the criminal law the word “satisfy,” when used without qualification, may be taken to mean, to convince beyond a reasonable doubt: Anderson’s Law Dictionary; 1 Greenleaf on Ev. (13th ed.), p. 4. In the first place, the jury should have been told that the defendant was entitled to begin with the presumption that he had a good reputation: 22 Am. & Eng. Ency. of Law (2d ed.), p. 1284; Underhill on Crim. Ev., p. 95; Fletcher v. State, 49 Ind. 124, and that in considering the testimony produced to reinforce this presumption all reasonable doubts were to be resolved in his favor. They should also have been informed concerning the proper bearing of certain references to particular offenses other than the one on trial, that the inquiries as to these were for the purpose of ascertaining the opportunities, sources and extent of the knowledge of the respective witnesses on the point of the general reputation of the defendant, and not to show that the defendant was probably guilty of these other offenses. Such instructions were peculiarly required in view of the cross-examination of the defendant’s character witnesses who, after testifying to his good reputation as a peaceful quiet man, were asked, “Did you know about him kidnaping a girl from Powderly?” — “Do you remember a couple of years ago hearing of an Italian girl being kidnaped at Powderly?” — “Never saw anything in the newspapers about it?” — “Don’t you remember reading that?” Had these questions been objected to it would have been the duty of the court to have excluded them. “Evidence of a good moral character offered by the defendant in a criminal prosecution must be limited to the particular trait of character involved in the commission of the crime charged. So in like manner the cross-examination of his witnesses .... must be limited to the same trait:” 3 Ency. of Evidence, 21; 12 Cyc. 413; Cathcart v. Com., 37 Pa. 108; Pauli v. Com., 89 Pa. 432. Furthermore, a witness “cannot be asked questions to elicit his knowledge of particular acts as distinguished from what he has heard:” 12 Cyc. 416; the inquiry must be limited to the general speech of the community on the subject: Kimmel v. Kimmel, 3 S. & R. 336; Wike v. Lightner, 11 S. & R. 198; Snyder v. Com., 85 Pa. 519. The issue here involved was as to defendant’s reputation as a man who would or would not be likely to commit a deadly assault upon another; whether or not a witness had knowledge that the defendant had been accused in a newspaper of kidnaping a girl some two years before was wholly irrelevant. The practical effect of such cross-examination may well have been to brand the defendant as a bad man and to cause the jurors to approach a consideration of his defense from that standpoint, or at least to raise doubts in their minds in passing upon his character evidence. Hence the evil in the instructions given, and the necessity for those indicated. (An interesting review of the cases upon this subject will be found in 2 Trickett’s Penna. Crim. Law, 940 et seq., and in the opinion of Judge Bell in Com. v. Irwin, 1 Clark, 344. Also see Abbott’s Criminal Trial Brief, pp. 424 and 426).

The sixth, seventh, eighth and ninth specifications complain that the trial judge gave undue prominence to the evidence of the commonwealth, and omitted, slighted or minimized much of the evidence favorable to the defendant, and that the charge as a whole was inadequate.. Upon a trial for murder the judge should give “a general review of the evidence on the one side and the other, which fairly and adequately presents the respective contentions of the parties, with enough references to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing:” Com. v. Kaiser, 184 Pa. 493. But the manner in which the evidence shall be dealt with must of necessity depend upon the circumstances in each case, and to a degree upon the line of arguments pursued by counsel in addressing the jury. It is only in exceptional instances, where, for example, it plainly appears that the charge is misleading, or that it has a tendency to withdraw the attention of the jury from material evidence, or to magnify the importance of the proofs on one side and belittle those on the other, that a trial judge will be reversed for inadequacy of charge in reviewing the evidence. While we will not sustain the present assignments upon any of those grounds, we have indicated, in passing upon previous specifications, that for other reasons the charge as a whole is inadequate.

The tenth assignment is to the effect that the court below erred in refusing to grant a new trial on account of after-discovered evidence. Since the case will go back for retrial it is not necessary to treat of this assignment further than to say that the matter was one peculiarly for the trial judge, and we are not convinced of any abuse of discretion.

The matters covered by the eleventh assignment have already been sufficiently discussed in connection with the fifth assignment.

The judgment is reversed and a venire facias de novo is awarded.


author: Mr. Justice Mestrezat,

text:
    Heck v. Collins, Appellant.

      Equity — Partnership—Accounting—Substitution of partner — Findings of fact — Parties—Equity practice.

    1. A bill in equity by one person against two others for an accounting of profits from the sale of timber lands cannot bo maintained, where it appears that the plaintiff, and one of the defendants and a third person, had purchased the lands as partners in order to sell them at a profit, and that subsequently after the third partner had removed to a distant part of the country, the two defendants had sold the lands at a profit, if there is also nothing in the evidence to show that the third party had withdrawn from the partnership, and that the second defendant had been substituted as a partner in his place.
    2. In such a case where the third partner in the original agreement testifies that he never withdrew from the partnership, and the plaintiff does not say that he ever had any conversation directly with the third party as to the withdrawal, but merely alleges that the defendant partner told him over the 'phone that the third partner had withdrawn or abandoned the enterprise, the trial court commits error in refusing defendant's request for a finding that the third partner never withdrew from the original association as alleged.
    3. The withdrawal of the third original partner is a material element in the plaintiff's right to recover, because, if he were still a partner, he would have a right to share the profits, and could compel the defendants to account to him.
    4. In reversing a decree for the plaintiff in such a ease, the appellate court will direct that plaintiff be permitted to amend his bill by making the original third partner a party defendant, and that if the amendment is not made, a decree shall be entered dismissing the bill.
    Argued Feb. 20, 1911.
    Appeal, No. 219, Jan. T., 1910, by defendants, from decree of C. P. Potter Co., June T., 1909, No. 1, directing an account on bill in equity in case of Albert S. Heck v. John R. Collins and Dorr R. Cobb.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Bill in equity for an accounting. Before Smith, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree awarding an accounting.

      John O. Johnson and Archibald F. Jones, with them A. N. Crandall, and W. I. Lewis, for appellants.
    The evidence fails to establish a substitution of Cobb. Heck is the only one who testifies to anything of the sort and his statements in this respect are denied by the answers filed and by the evidence of both Cobb and Collins. In equity as well as at law the allegations and proofs must be set forth and support the same cause of action or defense: Luther v. Luther, 216 Pa. 1; Zook v. R. R. Co., 206 Pa. 603; Thompson’s App., 126 Pa. 367; Woods v. McMillan, 32 Pitts. Leg. Jr. 363; Sloan v. James, 7 Del. County Rep. 318; Bellows v. Stone, 14 N. H. 175.
    W. H. Sullivan is an indispensable party to the proceedings: Lance’s App., 112 Pa. 456; Miller’s Est., 159 Pa. 562; Edwards v. Brightly, 44 Leg. Int. 132; Petitt v. Baird, 10 Phila. 57; Middletown H. & S. St. Ry. Co. v. Ry. Co., 16 Pa. C. C. Rep. 127; Joy v. Wirtz, 1 Wash. C. C. Rep. 517.

      April 10, 1911:
    The absence of Sullivan from the jurisdiction of the court is no excuse for his nonjoinder. Service could have been made under the Act of April 6, 1859, P. L. 387. See Coleman’s App., 75 Pa. 441; Eby’s App., 70 Pa. 311; Huntzinger v. Phila. Coal Co., 11 Phila. 609.

      W. K. Swetland, for appellee.
    There was no nonjoinder of an indispensable party: Mich. State Bank v. Gardner, 69 Mass. 305; Voorhees v. Melick, 25 N. J. Eq. 523; Cutler v. Tuttle, 19 N. J. Eq. 549; Coleman’s App., 75 Pa. 441.
   Opinion by

Mr. Justice Mestrezat,

We cannot agree with the court’s finding that “for the purpose of this case and of the right of plaintiff to an account of the profits of the transaction derived by the defendants, it is immaterial whether Sullivan ever withdrew. Sullivan’s rights as against his associates are not in controversy here and until he asserts them it is not necessary to pass upon the question.”

This was a bill filed for discovery, an accounting, and to compel payment of the amount found due the plaintiff by the defendants. From the averments of the bill and the facts found by the court below' it appears that in 1904 Heck, the plaintiff, Collins, one of the defendants, and W. H. Sullivan entered into a partnership to purchase and sell certain lands in Tennessee. Each of the parties was to contribute one-third of the necessary expenses of investigating the properties and were to share equally in the profits arising out of the transaction. They had under consideration three tracts of land, but upon investigation it was found that the Embreville Iron Company tract was the only attractive proposition and one out of which money could be made. They had an estimate made of the timber on the tract with the purpose of procuring prospective purchasers. Heck paid to Sullivan $100 as his share of ' the expenses incurred in the investigation. All the parties spent considerable time and some money in an endeavor to dispose of the timber on the tract at a profit to themselves. A sale was not consummated in the spring of 1905 when Sullivan removed from Potter county to the south to engage in business there. Subsequently, Heck was informed by Collins that Sullivan had abandoned the enterprise, and with the consent of Collins he entered into an agreement with the defendant Cobb with a view to effecting a sale of the Embreville timber tract on a commission basis, the parties to share equally in the profits. Some time thereafter Collins and Cobb effected a sale of the tract from which they received commissions or profits. This bill was filed by Heck against Collins and Cobb to compel payment to him of one-third of the profits. The court so decreed and the defendants have appealed.

In the fourth paragraph of the bill it is averred that Sullivan voluntarily abandoned the purpose of the partnership and so informed Collins, and that thereupon Heck with Collins’s consent induced Cobb to engage in the enterprise in the place of Sullivan to further prosecute the purpose of the original partnership arrangement. This averment was denied by Collins in his answer, and Cobb denied in his answer the alleged substitution of himself in place of Sullivan. On the trial of the cause the defendants requested the court to find that Sullivan never withdrew from the original association or alleged partnership with Heck and Collins as alleged in the fourth paragraph of the plaintiff’s bill; The request was refused. The refusal was followed, however, by a statement by the court which we think shows the error of the court’s answer to the request. The court says in this statement, that Sullivan testified that he never withdrew from the partnership and that Heck does not say that he ever had any conversation directly with Sullivan as to the withdrawal, but alleges that Collins told Heck over the ’phone that Sullivan had withdrawn or abandoned the enterprise. Conceding this to be true, the learned court should have affirmed the defendants’ request. The fact, if it be a fact, that Collins told Heck over the ’phone that Sullivan had abandoned the partnership was wholly insufficient to warrant the the court in so finding. On the other hand, Sullivan, as appears by the court’s statement, testified that he did not withdraw from the partnership.

The plaintiff’s right to relief under the averments of his bill required him to establish Sullivan’s withdrawal from the original partnership and the substitution of Cobb in his place. If Sullivan did not withdraw and the sale of the property was made by the original partnership, he is entitled to his share of the commissions. As pointed out above, the evidence required the court to find that Sullivan never had withdrawn from the partnership. The plaintiff can recover only if he sustains the averments of his bill that Sullivan withdrew from the original partnership which had obtained the property for sale, that Cobb had taken the place of Sullivan, and the property was sold by the plaintiff and the two defendants under the terms of the original partnership.

The plaintiff having failed to sustain the averment that Sullivan withdrew from the original partnership, the basis of the right to the relief prayed for, it is apparent, we think, that the learned court was in error in holding that Sullivan’s withdrawal from the partnership was immaterial so far as it affected the plaintiff’s right to an account from the defendants. If the sale was made by the original partnership, as the averments of the bill considered in the light of the testimony seem to indicate, Sullivan, as well as Heck, the plaintiff here, would be entitled to his share of the commissions, and should, therefore, have been made a party to the bill. Heck claims the right in this proceeding to recover the one-third of the moneys remaining in the hands of the defendants as profits derived from the sale of the Embreville tract of land or timber, but it is upon the theory that he and the two defendants were the only parties interested in the sale. Under the terms of the original partnership, he is not entitled to this share of the profits if Sullivan remained a member of the firm and is entitled to participate in the profits of the sale. Before the defendants can be required to account for the money in their hands arising from these profits, it is apparent that Sullivan’s rights therein should be adjudicated. At all events, Sullivan has a right to the opportunity to be heard before he is deprived of his interest in the fund in dispute or the defendants are required to account to Heck. Without such opportunity, Sullivan would not be bound by the decree in this proceeding, and Collins and Cobb might be required to account to him for a share of the money realized from the sale of the property.

We think the case should go back to the court below in order that the rights of all parties may be adjudicated after Sullivan has been brought on the record. The plaintiff should be given an opportunity to amend his bill so as to make Sullivan a party defendant. Under the pleadings and as the record now stands, the merits of the controversy cannot be determined. If, as appears by the evidence, Sullivan may have some interest in the fund in controversy, he should now assert his claim, otherwise the defendants will be compelled to account to him after they have paid to the plaintiff more than his share of the profits realized from the sale of the Embreville timber land.

The decree is reversed with a procedendo, and the court is directed to permit the plaintiff to amend the bill by making W. H. Sullivan a party defendant, and if the amendment is not made, to enter a decree dismissing the bill.


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    Bank v. Poore, Appellant.

      Judgments — Collateral attack — Married women — Capacity to contract —Presumptions—Act of June 8,1898, P. L. 844 — Principal and surety —Ejectment.

    1. Under the Act of June 8, 1893, P. L. 344, a married woman occupies the same position with regard to her property and the right to make contracts as if she,were unmarried with the exceptions noted in the act. Formerly her capacity to contract was exceptional and her disability general; now the disability is exceptional and her capacity general; the burden is on her when she seeks to avoid her contract to bring it within one of the few exceptions. The unlimited power over her property and the unrestricted right to make contracts have changed the former presumption that her contracts were void.
    2. A judgment regular on its face and entered by a court of competent jurisdiction cannot, in the absence of fraud or collusion, be impeached collaterally in any court by the parties or privies thereto, or by a stranger. Since the passage of the act of 1893, there being no presumption that a judgment confessed by a married woman is void, it is prima facie valid, and being only voidable it cannot be attacked in a collateral proceeding, such as an action of ejectment.
    Argued Feb. 22, 1911.
    Appeal, No. 17, Jan. T., 1911, by defendants, from judgment of C. P. Lackawanna Co., Sept. T., 1906, No. 1,172 on verdict for plaintiff in case of Merchants’ and Mechanics’ Bank of Scranton v. Marion Poore et al.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in the thirteenth ward of the city of Scranton. Before O’Neill, J.
    The opinion of the Supreme Court states the case.
    Verdict for the plaintiff by direction of the court. Defendant appealed.

      Errors assigned were in overruling a certain offer and striking out testimony introduced by the defense to impeach the judgment and sale thereunder.

      Cornelius Comegys, with him George S. Horn, for appellants.
    The judgment entered on the note was void: Doyle v. Kelly, 75 Ill. 574; Wiltbank v. Tobler, 181 Pa. 103; Caldwell v. Walters, 18 Pa. 79.
    Notice is either actual or constructive; but there is no difference between actual and constructive notice in their consequences; both classes of notice have one and the same effect: Epley v. Witherow, 7 Watts, 163.

      April 10, 1911:

      Charles H. Welles, of Welles & Torrey, with him William W. Lathrope, for appellee.
    The judgment under which the land in dispute was sold by the sheriff cannot be impeached in this collateral proceeding: Allison v. Rankin, 7 S. & R. 269; Buchannan v. Biggs, 2 Yeates, 232; Ross v. Dewey, 215 Pa. 526; Kostenbader v. Kuebler, 199 Pa. 246; Koechling v. Henkel, 144 Pa. 215; Abell v. Chaffee, 154 Pa. 254; Adams v. Grey, 154 Pa. 258; Stahr v. Brewer, 186 Pa. 623; Spotts’s Est., 156 Pa. 281; McNeal v. McNeal, 161 Pa. 109; Toomey v. Rosansky, 11 Pa. Superior Ct. 506; Weaver v. Brenner, 145 Pa. 299; Kennedy v. Baker, 159 Pa. 146.
   Opinion by

Mr. Justice Mestrezat,

This was an action of ejectment brought by the plaintiff against Christina R. Lindsay to recover a piece of land in the city of Scranton. The defendant died in 1909 and her children were substituted as defendants.

Christina R. Lindsay, the wife of R. M. Lindsay, was the owner of the premises in dispute. On January 18, 1895, she and her husband and one William Richmond signed a promissory note containing a confession of judgment and waiving inquisition for the sum of $7,000, payable to the Merchants’ and Mechanics’ Bank, the plaintiff in this action. Judgment was entered on the note in the common pleas of Lackawanna county on January 21, 1895. A writ of fieri facias was issued on the judgment on December 18, 1899, and by virtue thereof the sheriff sold the land in controversy to the Merchants’ and Mechanics’ Bank, the plaintiff in the execution. This action of ejectment was brought August 28,1906, to recover the property purchased by the plaintiff at the sheriff’s sale.

On the trial of the cause the defendants offered to show that at the time the judgment note was signed by Christina R. Lindsay she was a married woman, the wife of R. M. Lindsay, and that the note was given as collateral security for the indebtedness of the New Buffalo Coal Company. The offer was objected to by plaintiff’s counsel, but was admitted for the time being. Subsequently, the court changed its ruling, sustained the objection to the offer and directed the jury to return a verdict for the plaintiff. The exclusion of the testimony is the only matter assigned for error.

At common law a judgment note executed by a married woman was void, and real estate sold on the judgment entered thereon passed mo title to the purchaser. The judgment was open to collateral attack and could be impeached on the trial of an ejectment brought to recover the premises sold by the sheriff. But the Acts of June 3, 1887, P. L. 332, and 1893 entirely changed the common law in this respect. By the Act of June 8, 1893, P. L. 344, a married woman was given the same right and power as an unmarried person to acquire, own, possess, control or dispose of all kinds of property, but requiring her husband to join in conveying or mortgaging her real estate. She was also given the same right as an unmarried person to make contracts, with the exception that she could not become an accommodation indorser, maker, guarantor or surety for another. The act also conferred upon her the power to dispose of her property by will in the same manner as if she were unmarried.

It will be observed that under the act of 1893 a married woman occupies the same position with regard to her property and the right to make contracts as if she were unmarried, with the exceptions noted. Formerly her capacity to contract was exceptional and her disability general; now the disability is exceptional and her capacity general, the burden being on her when she seeks to avoid her contract to bring it within one of the few exceptions: Patrick & Co. v. Smith, 165 Pa. 526. The unlimited power over her property and the unrestricted right to make contracts have changed the former presumption that her contracts were void. A note or other obligation given by a married woman is now presumed to be valid, and if she alleges that it is invalid the burden is upon her to show that it comes within the exceptions to her right to contract made in the statute. It follows, and we have so held, that a judgment confessed by a married woman is no longer prima facie void; at most it is voidable and, on her application, may be set aside only when it appears to have been unauthorized by the act.

It is a settled rule that a judgment regular on its face and entered by a court of competent jurisdiction cannot, in the absence of fraud or collusion, be impeached collaterally in any court by the parties or privies thereto, or by a stranger. Since the passage of the act of 1893, there being no presumption that a judgment confessed by a married woman is void, it is prima facie valid, and being only voidable it cannot be attacked in a collateral proceeding.

The learned counsel for the defendants contend that the judgment was open to attack on the trial of the ejectment because the plaintiff in the execution who became the purchaser of the real estate in dispute had actual notice and knowledge that the note on which the judgment was entered was given as collateral security. Conceding this to be true, it is not sufficient to permit the defendants to attack the judgment in the collateral proceeding. The judgment was regular on its face and did not disclose that the defendant was a married woman. Such an attack can only be made when the judgment is void. If the judgment is voidable, that is, if the note was given as collateral security which is unauthorized by the act of 1893, the defendants could only get relief by an application to the court to open or strike it off. Until such a proceeding was instituted, the payee, notwithstanding his knowledge that the note was given for a purpose prohibited by the act of assembly, had the right to assume that no attack would be made upon it. So far as the record discloses the judgment was valid and hence the sheriff’s deed conveyed a good title to the purchaser. If the judgment was invalid, by reason of the note having been given as collateral security, it was simply voidable and not void, and therefore was not the subject of attack on the trial of the ejectment brought to recover the real estate conveyed by the sheriff’s deed. The learned judge was right in directing a verdict for the plaintiff.

The judgment is affirmed.


text:
    Lloyd et al., Appellants, v. Fendick.

      Practice, C. P. — Case stated — Omission of material fact — Marketable title.

    1. A case stated must disclose facts necessary to an intelligent judgment; whatever is not distinctly and expressly agreed upon therein will be taken not to exist; and it is error to base a judgment on facts not set forth in the case stated.
    2. Where in an action for the purchase price of real estate a case stated provides that “if the court be of the opinion that the plaintiffs have a good and marketable title to the land, then judgment for plaintiffs, if not, then for defendant,” judgment must be given for the defendant where it appears by the will under which plaintiffs claim that a one-fourth interest in the property passed to a brother of the plaintiffs, and there is nothing in the case stated to account for this share and no averment that plaintiffs have title to it.
    Argued Feb. 22, 1911.
    Appeal, No. 26, Jan. T., 1911, by plaintiffs, from judgment of C. P. Lackawanna Co., Nov. T., 1910, No. 484, for defendant on case stated in suit of Mary A. Lloyd and Samuel J. Lloyd v. Jacob Fen-dick.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Case stated in assumpsit for purchase price of real property. Before Newcomb, J.
    The opinion of the Supreme Court states the case.

      Error assigned was in entering judgment for defendant.

      A. A. Vosburg, J. J. Owens and Bussell Dimmick, for appellants.
    If the case stated was so defective that the court could not pass upon the question submitted for decision, the case stated should have been set aside: Rush Township v. Schuylkill County, 100 Pa. 356; Whitesides v. Russell, 8 W. & S. 44; Kinsley v. Coyle, 58 Pa. 461; Union Savings Bank v. Fife, 101 Pa. 388; Morgan v. Mercer County, 8 Pa. Superior Ct. 96; Com. v. Howard, 149 Pa. 302.
    April 10, 1911:

      James J. O’Malley and M. J. Martin, for appellee.—
    The facts in the case stated are to be taken as conclusive: Phila. & Reading R. R. Co. v. Waterman, 54 Pa. 337; Chester v. Traction Co., 4 Pa. Superior Ct. 575.
   Opinion by

Mr. Justice Mestrezat,

This was an action of assumpsit to recover the purchase money due on articles of agreement by which the plaintiffs sold to the defendant certain real estate in the borough of Olyphant, Lackawanna county. The facts were submitted in a case stated for the decision of the court, and judgment was entered for the defendant. This motion of the court is the only error assigned.

By a writing dated June 13, 1910, treated as an article of agreement by the parties, the plaintiffs acknowledged the receipt-of $500 as a first payment on the purchase price of the property which was to be $19,000. The balance of the purchase money was to be paid in thirty days, and the terms of payment were to be mutually agreed upon. In the agreement it was provided as follows: “A clear deed and title to be given for the purchase price of $19,000.”

By the case stated it appears that the plaintiffs claim through the will of their mother, Barbara Lloyd, who died seized in fee, survived by her husband and four children, and through the will of their father. She devised one-fourth of the property in fee to each of the plaintiffs and one-fourth to her son, John D. Lloyd, and the remaining one-fourth to her son, Thomas T., and her adopted son, William, in such shares as John Lloyd, her husband, should direct. The husband was given a life estate in the property. He devised “all his real estate” in equal shares to his three children, Thomas, and the two plaintiffs, Samuel, and Mary Ann, and bequeathed $5.00 to William Lloyd. Thomas Lloyd devised his interest in the property to his sister, Mary Ann Lloyd. The case stated provides that “if the court be of the opinion that the said plaintiffs have a good and marketable title to the land, then judgment be entered for the plaintiffs for the sum of $19,000, with interest from November 4, 1910; if not, then judgment be entered for the defendant.”

It will be observed that it does not appear by the case stated that the plaintiffs have title to John D. Lloyd’s one-fourth of the premises. As said by the learned court in its opinion: “There is nothing to account for that (John D. Lloyd’s share) since it went to him under his mother’s will on the death of his father. To all intents and purposes that is still outstanding, and consequently the plaintiffs stand seized of only three-fourths undivided in the premises.” For this reason the court entered judgment for the defendant.

The learned counsel for the plaintiffs contend that the only question submitted to the court for decision was whether the power of appointment conferred by Barbara Lloyd on her husband had been legally exercised, thereby placing in the plaintiffs the title of Thomas T., and William Lloyd. It is claimed by the plaintiffs that the defendant refused to accept their deed and pay the purchase money for the reason that he questioned the title of Mary A. Lloyd under her father’s will, and it is argued that if the case stated was so defective that the court could not pass upon the construction of the wills of Barbara and John Lloyd judgment should not have been entered for the defendant but the case stated should have been set aside or quashed. But this contention cannot be sustained. The court could only enter such judgment as was warranted by the facts set forth in the case stated. Such facts as are not stated therein are presumed not to exist. The court deals with only such facts as appear to be distinctly and expressly agreed upon by the case stated. The right of the plaintiffs to recover the purchase money for the property sold depended upon whether they could convey a fee simple title to the property sold by the agreement. In order, therefore, to enable them to recover it was necessary that the facts should appear by the case stated that they owned the premises in fee simple. It is said by counsel in their printed brief that the plaintiffs owned John D. Lloyd’s one-fourth interest in the premises, but that “neither counsel in framing the case stated thought it essential to embody this fact therein.” This was clearly a misapprehension of what a case stated should contain, and what we have time and again held it must contain, that is, that it must disclose facts necessary to an intelligent judgment, that whatever is not distinctly and expressly agreed upon therein will be taken not to exist, and that it is error to base a judgment on facts not set forth in the case stated. This is so well settled in this jurisdiction that it is unnecessary to cite authorities to support it. It is clear, therefore, that the omission to state the fact, if it be a fact, that the plaintiffs own John D. Lloyd’s one-fourth interest in the premises was necessarily fatal to their right to recover, and that it would have been clear error for the learned court below to have entered judgment for the plaintiffs on the case stated. It is not contended that the plaintiffs intended to or did sell an undivided three-fourths of the premises. On the contrary, the agreement shows that the fee simple title was to pass and “the full purchase price for said property was to be $19,000” forwhich “a clear deed and title was to be given.” The condition upon which judgment was to be entered, it will be observed, was that “the court should be of the opinion that the said plaintiffs have a good and marketable title to the lands,” and hence it would have been error for the court to have entered judgment in favor of the plaintiffs for the purchase money. The question of the proper exercise of the power of appointment conferred on John Lloyd by the will of his wife, Barbara Lloyd, became immaterial as the plaintiffs were not entitled to recover even if that question had been decided in their favor.

The case stated was not legally defective and could not have been quashed by the court. If the allegation of the plaintiffs’ counsel be correct that their clients own the interest of John D. Lloyd in his mother’s property, the fact, like all other material facts, should have been averred in the-case stated. But the omission to aver that fact did not make the statement legally defective. It is true that the case stated did not disclose sufficient facts to warrant the entry of a judgment in favor of the plaintiffs, nor was it necessary; but it did disclose all the facts necessary to enable the court to enter an intelligent judgment. That is all that is required in a case stated. It is similar to and a substitute for a special verdict and if it contains facts which will warrant the entry of a judgment it is sufficient. There can be no question of the legal sufficiency of the case stated in the present case. The plaintiff’s difficulty is that they omitted to include in the statement a fact which was necessary to enable them to recover a judgment, and without which the learned court below was compelled to enter judgment against them.

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


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    Yaukey, Appellant, v. Forney.

      Evidence — Real estate — Ejectment—Lease—Notice of prior lease— Competency of witness.

    1. The rule that the vague reports of strangers or information given by a person not interested in a property are insufficient to put a purchaser thereof on inquiry as to its title and ownership, does not apply to a notice given by the father of the holder of the paper title where it appears that the father and son had joined in executing a prior lease for the property and for many years had shared equally in the profits arising therefrom.

      2. In an action of ejectment where it appears that the holder of the paper title of the land in dispute and his father had by a written agreement under seal but never acknowledged or recorded leased the ground to the plaintiff for fifty years for the use of digging and shipping sand, the plaintiff agreeing to pay the lessors five cents per ton shipped, that the plaintiff dug and shipped sand for six years and paid the royalties in equal shares to the two lessors, and that thereafter the holder of the paper title by a written agreement leased to the defendant in possession the same tract of land, for the purpose of mining clay and sand, for five years, with an option of purchase, the father is competent to prove that he gave the present possessor notice of the former lease made to the plaintiff.
    3. Jacques v. Weeks, 7 Watts, 261, and Churcher v. Guernsey, 29 Pa. 84, commented upon and distinguished.
    Argued March 6, 1911.
    Appeal, No. 78, Jan. T., 1910, by plaintiff, from judgment of C. P. Franklin Co., Feb. T., 1908, No. Ill, on verdict for defendants in case of Jeremiah S. Yaukey v. W. L. Forney, W. L. Craig, Calvin Theodore Tolbert and Tilman Tolbert.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Ejectment for land in Guilford township. Before Gillan, P. J.
    The facts appear in the opinion of the Supreme Court.
    On the trial, while the plaintiff’s witness Tilman Tolbert was on the stand, the following offer was made:
    Mr. Sharpe: We propose to prove by this witness and other witnesses that W. L. Craig, before he received and took the lease from Calvin Theodore Tolbert, had express notice of the fact that J. S. Yaukey, the plaintiff, held a lease on this piece of ground from Tilman Tolbert and Calvin Theodore Tolbert, notice from both Tilman Tolbert, this witness, and from Calvin Theodore Tolbert.
    Mr. Walter: This is objected to because the witness, Til-naan Tolbert, is a stranger to the title and it has not been shown that he has any interest in the property such as would require the defendant, Craig, to inquire because of the information he received from him.

      April 10, 1911:
    The Court: The evidence offered upon this trial to show title in Tilman Tolbert is not of that character from which a resulting trust can be established; it is too vague, uncertain and doubtful; therefore, there is nothing in the case to show that Tilman Tolbert was in any wise interested in the land; a notice from him to the defendant of an outstanding lease was no notice, because the defendant was not bound to keep any account of it; the only persons who could give such notice are persons interested in the title; therefore, the objection is sustained; the evidence is rejected, and bill sealed to the plaintiff.
    Verdict for defendants and judgment thereon. Plaintiff appealed.

      Error assigned was refusal to admit the above offer.

      Walter K. Sharpe, with him Irwin C. Elder, for appellant.
    The offer should have been admitted: Butcher v. Yocum, 61 Pa. 168.

      Charles Walter, with him John D. Rice, J. A. Strife and Arthur W. Gillan, for appellees.
    Information given by a person not interested in the property is not sufficient notice: Jaques v. Weeks, 7 Watts, 261; Kerns v. Swope, 2 Watts, 75; Woods v. Framere, 7 Watts, 382; Churcher v. Guernsey, 39 Pa. 84.
   Opinion by

Mr. Justice Mestrezat,

Calvin Theodore Tolbert and Tilman Tolbert, his father, by a written agreement dated May 7, 1890, leased to J. S. Yaukey, the plaintiff, twenty-three acres of mountain land in Franklin county, Pennsylvania, “for the use of mining or digging and shipping of sand for fifty years.” The lessee agreed to pay the lessors five cents per ton for all sand shipped by him. The lease was under seal but was not acknowledged or recorded. Prior to the lease, Yaukey had taken out and shipped some sand from the tract, and after obtaining the lease continued to dig and ship sand for about six years and removed about 700 tons. The royalties due on the sand were paid by Yaukey in equal shares to the two lessors.

By a written agreement dated April 14, 1899, Calvin Theodore Tolbert leased to W. L. Craig, one of the defendants, for the term of five years, the same tract of land for the purpose of mining and removing clay and sand therefrom for which the lessee was to pay five cents per ton. The lessor gave the lessee an option to purchase the land within the life of the lease for the consideration therein named. Craig having taken possession of the property under the lease, Yaukey, the lessee in the former lease, brought this action of ejectment. On the trial of the cause the plaintiff offered to prove by Tilman Tolbert that before Craig took the lease from Calvin Theodore Tolbert he had express notice from the witness that Yaukey held a lease on the land from Tilman Tolbert and Calvin Theodore Tolbert. The defendant objected “because the witness, Tilman Tolbert, is a stranger to the title and it has not been shown that he has any interest in the property such as would require the defendant, Craig, to inquire because of the information he received from him.” The learned court excluded the offer on the ground that there was nothing in the case to show that Tilman Tolbert was interested in the land in dispute, and hence notice by him to the defendant of an outstanding lease was insufficient. This is the only question which need be considered on this appeal.

The court below based its ruling on Jaques v. Weeks, 7 Watts, 261, Churcher v. Guernsey, 39 Pa. 84, and kindred cases in which it is held that the vague reports of strangers or information given by a person not interested in the property are insufficient to put the purchaser on inquiry as to the title and ownership of the property. We are of the opinion, however, that the present case is not ruled against the plaintiff by the cases referred to. The doctrine announced in those cases may be conceded to be the rule in this state, but it does not exclude Tilman Tolbert as a witness to prove the notice of the former lease given to the plaintiff. Mr. Justice Thompson, delivering the opinion in Churcher v. Guernsey, 39 Pa. 84, and citing the earlier cases says (p. 86): “Anything that would put a prudent man upon inquiry, it has often been held, is equivalent to notice. It is not easy, at all times, to define what circumstances should have this effect. . . . But rumors are neither notice, nor the ground-work for the required inquiry. Actual notice must be by direct information from a person who has an interest in the estate, or who may be affected by the purchase.” Recognizing this as the correct rule, it is apparent that Tilman Tolbert had such an interest in the premises in dispute as to make him a competent witness to prove notice of the lease given by himself and his son to the plaintiff. The evidence disclosed the fact that prior to the lease of 1890 to the plaintiff, Tilman Tolbert was frequently on this tract of land cutting and hauling wood. It is conceded that Calvin Theodore Tolbert, the son, had the paper title to the land at the time the lease was executed. He permitted his father, Tilman, to join with him in the lease to Yaukey for fifty years, and for six years thereafter the plaintiff mined the sand and divided the royalties between the father and the son. At the date of the second lease, in 1899, by Calvin Theodore Tolbert to Craig, the former lease was still valid and authorized the lessee to continue mining and removing the sand. Tilman Tolbert at that time, therefore, was interested in the premises to the extent of one-half of the royalties due by the lessee to himself and his son. To that extent he was interested in the property. Conceding that the son, Craig’s lessor, owned the property, he had the undoubted right to give the whole or any part thereof to his father. That he did give him an interest appears by the fact that he permitted the father to become a joint lessor in the lease to the plaintiff, thereby authorizing him to receive one-half of the royalties, and which he did receive after the execution and delivery of the lease to Yaukey. The effect of the lease was to make the lessee the tenant of the father as well as of the son. They were then both in possession of the premises through their tenant who could not dispute the title of either of his lessors regardless of the validity of the lease or the true ownership of the property.

The facts of the present case, we think, do not bring it within the ruling of the cases cited and relied on by the learned court in excluding the testimony. The information which Tilman Tolbert gave to Craig was not an idle rumor nor a vague report circulated in the community in regard to the former lease. Nor was the notice given by a person not interested in the estate, or by one who was not affected by the second'lease. On the contrary, Tilman Tolbert was in possession of the premises through his tenant at the very time the second lease was given. He was certainly “affected by the” second lease because it deprived him of one-half of the royalties on the sand which would be mined and removed from the premises under the first lease. He was, therefore, directly interested, and his rights were clearly invaded by the lease given to Craig, and by the latter’s entry on the land and the exercise thereon of the rights conferred by the lease. It necessarily follows that he was a competent witness and the exclusion of his testimony was error.

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


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    Muderspaugh’s Estate.
    ■ Wills — Power of sale — Partial conversion — Failure of purpose.

    Where a testator has by will directed a sale of his real estate for the specific purpose of producing a fund to pay charitable bequests named, a part of the fund intended for a bequest which fails, goes to the heirs at law as real estate, and not to the next of kin as personal property, and this is the case although the real estate was actually sold.
    Argued March 6, 1911.
    Appeal, No. 280, Jan. T., 1910, by John C. Helman, executor of Adam Muderspaugh, from decree of O. C. Franklin Co., directing distribution in estate of Susan Muderspaugh, deceased.
    April 10, 1911:
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Exceptions to report of W. J. Zacharias, Esq.,.auditor.
    The opinion of the Supreme Court states the case.

      Error assigned was in sustaining auditor’s report.

      Buthrauff & Nicklas, with them Geo. W. Atherton, for appellant.
    The contention of appellant is that the intent of testatrix to work an absolute conversion, so as to change the character of the fund from realty to personalty, is apparent: Burr v. Sim, 1 Whart. 252; Nagle’s App., 13 Pa. 260; Ackroyd v. Smithson, W. & T. Leading Cases in Equity (4th Am. ed.), 1171; Luffberry’s App., 125 Pa. 513; Painter v. Painter, 220 Pa. 82.

      Charles Walter, with him T. Z. Minehart, O. C. Bowers and Arthur W. Gillan, for appellees,
    cited: Painter v. Painter, 220 Pa. 82; Luffberry’s App., 125 Pa. 513; Wilson v. Hamilton, 9 S. & R. 424; Read v. Williams, 125 N. Y. 560 (26 N. E. Repr. 730); Jones v. Kelly, 170 N. Y. 401 (63 N. E. Repr. 443).
   Opinion by

Mr. Justice Mestrezat,

The learned court below has properly disposed of the single question in this case, and its opinion vindicates the correctness of the conclusion. After giving a life estate to her husband, the testatrix directs that, after his death, “all my estate, real, personal and mixed, which may then be remaining shall be sold by a trustee to be appointed by the orphans’ court.... and after payment of the funeral expenses of my husband, Adam Muderspaugh, and the expense of marking his grave, and all other legal expenses and charges connected with the settlement of my estate, I dispose of the same as follows.” Two legacies, aggregating $400, were then given, and the balance of the estate was bequeathed to certain charitable or religious institutions. These latter bequests failed by reason of the death of the testatrix within one calendar month of the execution of the will. After the husband's death, the real estate was sold by a trustee, and the proceeds are the subject of this distribution. The court held that after payment of the two legacies and expenses of administration, the balance of the fund went to the heirs of the testatrix as real estate. This was clearly right. The direction in the will to sell the real estate was not general but for the specific purpose of producing a fund to pay the bequests named by the testatrix, and only to that extent was there a conversion of the realty. The charities having failed, the part of the fund, intended for that purpose went to the heirs at law as real estate. “It has never since Ackroyd v. Smithson, 1 Bro. C. C. 503 been doubted,” says the court in Luffberry’s App., 125 Pa. 513, 516, in the language of another, “that where a testator directs the real estate to .be sold, and the produce of the sale to be applied for a purpose which either wholly or partially fails, the undisposed of beneficial interest will result to his heir at law, and will not go to his next of kin, although the land may have been actually converted into money.”

The decree is affirmed.