author: Mr. Justice Stewabt,

text:
    Thompson, Appellant, v. Springfield Water Company.

      Water companies — Negligence—Inadequate supply — Liability for fires — • Township.

    As a township is under no legal duty to provide a supply of water for the extinction of fires, a water company which has agreed with the township to maintain hydrants and an adequate supply of water for fire purposes, is not liable to a resident of the township for a loss from fire, although the contract with the township was for a valuable consideration, and the company is negligent in not providing an adequate supply of water.
    Argued March 19, 1906.
    Appeal, No. 130, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1904, No. 572, on demurrer for defendant in case of Henry C. Thompson, Jr., v. Springfield Water Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for loss by fire. Before Davis, J.
    Demurrer to statement.

      Error assigned was in entering judgment for defendant on demurrer to statement.

      John O. Bell, for appellant.
    Whenever an individual or a corporation for a consideration received from the sovereign power has become bound by a covenant or agreement to perform some public duty, such individual or corporation is liable in a civil action to any person who suffers special damage by reason of the negligent performance of such duty : Henley v. Mayor & Burgesses of Lyme-Regis, 5 Bingham, 91; 3 B. & Ad. 77; 1 Bing. N. C. 222; Cumberland Valley R. R. Co. v. Hughes, 11 Pa. 141; Passmore v. Western Union Tel. Co., 78 Pa. 238; Robinson v. Chamberlain, 34 N. Y. 389; Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475 ; Lampert v. Laclede Gas Light Co., 14 Mo. App. 376 ; Penn. & Ohio Canal Co. v. Graham, 63 Pa. 290; Winterbottom v. Wright, 10 M. & W. 109; Fath v. Railway Co., 105 Mo. 537 (16 S. W. Repr. 913) ; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; Marshall v. Ry. Co., 21 C. B. 655; Foulkes v. Ry. Co., L. R. 5 C. P. D. 157; P. & R. R. R. Co. v. Derby, 55 U. S. 468; Gorrell v. Water Supply Co., 124 N. C. 328 (32 S. E. Repr. 720) ; Howsmon v. Trenton Water Co., 119 Mo. 304 (24 S. W. Repr. 784) ; Little v. Banks, 85 N. Y. 258; Fire Ins. Patrol v. Boyd, 120 Pa. 624; Weet v. Village of Broekport, 16 N. Y. 161; Maxmilian v. Mayor, etc., of New York, 62 N. Y. 160.

      Joseph T. Bunting, of Hannis, Williams Bunting, for appellee.
    There are three cases in Pennsylvania directly in point, denying the plaintiff’s right to recover, all of them actions of trespass on the case, one of them against a municipality, and two of them against a water company, for negligence in furnishing an insufficient supply of water for extinguishing a fire; Grant v. City of Erie, 69 Pa. 420 ; Stone v. Uniontown Water Co., 16 Pa. C. C. Rep. 328; Beck v. Kittanning Water Co., 11 Atl. Repr. 300, 8 Sadler, 237.
    No liability of municipality to property owner for fire loss is shown by the following cases: Vanhorn v. Des Moines, 63 Iowa, 447 (19 N. W. Repr. 293) ; Wheeler v. Cincinnati, 19 Ohio St. 19; Heller v. Sedalia, 53 Mo. 159; Brinkmeyer v. Evansville, 29 Ind. 187; Patch v. Covington, 17 B. Mon. 722 ; Tainter v. Worcester, 123 Mass. 311; Springfield Fire & Marine Ins. Co. v. Keeseville, 148 N. Y. 46 (42 N. E. Repr. 405) ; Black v. Columbia, 19 S. C. 412; Mendel v. Wheeling, 28 W. Va. 233; Wright v. Augusta, 78 Ga. 241; Miller v. Minneapolis, 75 Minn. 131 (77 N. W. Repr. 788); Sandusky y. Central City, 22 Ky. L. Repr. 669 (58 S. W. Repr. 516); Planters’ Oil Mill v. Monroe Water-works, etc., Co., 52 La. Ann. 1243 (27 So. Repr. 684); Allen v. Shreveport Water-works Co., 113 La. 1091 (37 So. Repr. 980); Butterworth v. City of Henrietta, 25 Tex. Civ. App. 467 (61 S. W. Repr. 975); Lenzen v. New Braunfels, 13 Tex. Civ. App. 335 (35 S. W. Repr. 341) ; Mott v. Clierry-vale Water & Mfg. Co., 48 Kan. 12 (28 Pac. Repr. 989); Albany v. Cunliff, 2 N. Y. 165; Clark v. Des Moines, 19 Iowa, 199; McPherson v. Foster, 43 Iowa, 48.
    No liability of water company to property owner for fire loss by reason of contract between the water company and a municipality is shown by these eases: Stone v. Uniontown Water Co., 16 Pa. C. C. Rep. 328; Beck v. Kittanning Water Co., 8 Sadler, 237; Wainwright v. Queens County Water Co., 78 Hun, 146 (28 N. Y. Supp. 987); Mott v. Water Co., 15 L. R. A. 375; Howsmon v. Trenton Water Co., 119 Mo. 304 (24 S. W. Repr. 784); Marvin Safe Co. v. Ward, 46 N. J. L. 19; Davis v. Clinton Water Works, 54 Iowa, 59 (6 N. W. Repr. 126); Nickerson v. Bridgeport Hydraulic Co., 46 Conn. 24; Fowler v. Athens City Water Works Co., 83 Ga. 219 (9 S. E. Repr. 673) ; Becker v. Water Works, 79 Iowa, 419 (44 N. W. Repr. 694); Eaton v. Water Works Co., 37 Neb. 546 (56 N. W. Repr. 201) ; Foster v. Lookout Water Co., 3 Lea (Tenn.), 42; House v. Houston Water Works Co., 88 Tex. 233 (31 S. W. Repr. 179); Britton v. Green Bay & Fort H. Water Works Co., 81 Wis. 48 (51 N. W. Repr. 84); Boston Safe Dep., etc., Co. v. Salem Water Co., 94 Fed. Repr. 238; Fitch v. Seymour Water Co., 139 Ind. 214 (37 N. E. Repr. 982) ; Bush v. Artesian Hot & Cold Water Co., 43 Pac. Repr. 69; Wilkinson v. Light, Heat & Water Co., 78 Miss. 389 (28 So. Repr. 877) ; Nichol v. Water Co., 53 W. Va. 348 (44 S. E. Repr. 290); Smith v. Great South Bay Water Co., 81 N. Y. Supp. 812; Springfield Fire & Marine Ins. Co. v. Graves County Water & Light Co., 85 S. W. Repr. 205; Blunk v. Dennision Water Supply Co., 71 Ohio, 250 (73 N. E. Repr. 210) ; Metropolitan Trust Co. v. Water Co., 132 Fed. Repr. 702; Allen & Currey Mfg. Co. v. Shreveport Water-works Co., 113 La. 1091 (37 So. Repr. 980) ; Town of Ukiah City v. Ukiah Water, etc., Co., 142 Cal. 173 (75 Pac. Repr. 773).
    May 14, 1906:
    Against the above long line of cases throughout the United States and England, holding that a water company is not liable to a consumer for a fire loss, by reason of its contract with the municipality, there are, in addition to a Louisiana case, now overruled, as above stated, nine cases decided in Kentucky and North Carolina, holding a different doctrine, viz: Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340 (12 S. W. Repr. 554); Duncan v. Owensboro Water Co., 12 Ky. Law Repr. 35 (12 S. W. Repr. 557); Gorrell v. Greensboro Water Supply Co., 124 N. C. 328 (32 S. E. Repr. 720) ; Fisher v. Greensboro Water Supply Co., 128 N. C. 375 (38 S. E. Repr. 912); Jones v. Durham Water Co., 135 N. C. 553 (47 S. E. Repr. 615); Duncan’s Executor v. Owensboro Water Co., 12 Ky. Law Rep. 824 (15 S. W. Repr. 523) ; Owensboro Water Co. v. Duncan’s Administratrix, 17 Ky. Law Repr. 755 (32 S. W. Repr. 478); Graves County Water Co. v. Ligon, 112 Ky. 775 (66 S. W. Repr. 725); Lexington Hydraulic & Mfg. Co. v. Oots, 27 Ky. Law Repr. 233 (84 S. W. Repr. 774); rehearing denied, 27 Ky. Law Repr. 797; (86 S. W. Repr. 684).
   Opinion by

Mr. Justice Stewabt,

This case can be decided in the light of our own adjudications. They will be found to be entirely adequate and satisfactory. Discussion of the many authorities of other jurisdictions which the diligence and research of counsel have brought to our notice is, therefore, unnecessary. The question for determination is the defendant’s liability for the destruction of the plaintiff’s property by fire, assuming that the proximate cause of its destruction was the insufficiency of the only available hydrants in point of location and, further, that the insufficiency was due to defendant’s negligence. The defendant, as its name indicates, is a company engaged in the business of furnishing water to consumers for private gain and emolument. It entered into a contract with the commissioners of Lower Merion township, for a valuable consideration, whereby it agreed to furnish and place in position on the line of its mains, as then laid out, fifty-four double nozzle fire hydrants, and furnish water to the same for the purpose of extinguishing fires that might occur on the premises and property of private owners and taxpayers of the township, keeping at all times during the continuance of the agreement the hydrants so distributed in serviceable condition and supplied with water. It is conceded that no contractual relation between plaintiff and defendant resulted over this agreement, and hence plaintiff could have no right of action on the contract. He rests his case wholly upon the negligence of the defendant in the performance of a public duty which it had voluntarily assumed. Did any legal public duty in this behalf rest upon the defendant ? The determination of the case depends upon the answer to this question. What the water company undertook and agreed to do was in the nature of a public function; that is to say, it was something that the municipality, if it chose, could have done at public expense in the exercise of rightful authority. Presumably from considerations of economy and convenience, instead of establishing a municipal water plant with the necessary equipment for the desired purpose, the municipality by its proper authorities engaged the defendant company, owning an established water plant, to do for the public all that was deemed necessary in this regard. It thereby made the defendant its agent to discharge for it this particular function, and since the act of the agent in the proper exercise of authority is the act of the principal, a correlative must be, that in doing the act no higher or other duty — we are now speaking of legal public duty — can rest on the agent than would have rested on the principal in the performance of the same service. The case on this point, therefore, may be considered as though the municipality, and not the agent, were directly involved. Would the municipality have been liable, under the circumstances here, had it undertaken to do on its own account what defendant undertook to do on its behalf as its agent? The answer is within easy reach. We quote from the opinion of Lowbie, C. J., in Carr v. The Northern Liberties, 35 Pa. 324: “ Where any person has a right to demand the exercise of a public function aud there is an officer, or city officers, authorized to exercise that function there, the right and the authority give rise to the duty; but when the right depends upon the ground of authority, and that authority is essentially discretionary, no legal duty is imposed.” It is not necessary here to state the facts of that case, or give the connection in which the extract occurs, since the quotation reappears in a later case so closely resembling the one at bar in its facts as to be scarcely distinguishable from it, and is there referred to as authoritatively ruling the principles there involved. We refer to the case of Grant v. City of Erie, 69 Pa. 420, in which the opinion was delivered by Sharswood, J., the authority of which remains unchallenged to this time. Pursuant to an act of assembly authorizing the city of Erie to make and establish a nuinber of reservoirs “ to supply water in case of fire,” the city established a system of reservoirs, but allowed one of them to fall into decay, so that it became useless for the purpose needed. The plaintiff there alleged that in consequence a valuable block of buildings belonging to him, and which had taken fire, had been utterly destroyed. He brought his action against the city for negligence in the maintenance of .the reservoir. On the trial a verdict was directed for defendant on the ground that the alleged cause of loss was too remote, with a strong intimation from the court that aside from this no liability attached to the city, because no duty rested upon the municipality to maintain a supply of water in the reservoir. It was on the latter ground that the judgment was sustained by this com-t. The opinion in the case furnishes us with an apt illustration of just what is meant, in the extract from the opinion of Chief Justice Lowries in the earlier- case, in distinguishing between something enjoined by ■law upon a municipality giving rise to a legal public duty and a discretionary authority on which no such duty can be predicated. “ If it were made the duty of a municipality to station a police officer at a particular corner, to protect the foot passengers from being run over by passing vehicles, it may be doubted whether it would be an answer to an action to say that the cause of the injury-was the horse and wagon, and not the absence of the officer. But if the municipality were vested with the authority to employ and keep on foot a sufficient police, no one can surely pretend that a foot passenger run over by á wagon could sue the corporation for damages, even though he be able to show that they had formerly kept an officer at that place for that purpose, and had withdrawn him, or that he had been guilty of negligence in the performance of his duties.” It is not contended, and of course cannot be, that the township of Lower Merion was under any legal duty to provide a supply of water for fires that might occur. Whether it did so or not was a matter of municipal discretion. The fact that it was actually attempted, either by itself or by another at its instance and procurement, in no wise affects the case. If not required in the first instance to accomplish it, no obligation rested upon it to continue the supply after it had once been accomplished. The cases referred to ,are so directly in point and so entirely conclusive of the question involved, that it is unnecessary to look beyond them. Whatever the law with respect to liability in cases of this kind may be in other jurisdictions, these cases leave us in no doubt that the judgment of the court below in the present case is in full accord with what it is in Pennsylvania.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Talley, Appellant, v. Talley.

      Divorce — Adultery—Evidence of wife's good character.

    In a suit for divorce by a husband against a wife, where the ground is adultery, evidence of the wife’s good reputation for virtue and chastity is inadmissible.

      Divorce — Adultery—Charge.

      A wife may condone the adultery of her husband so as to allow him to be divorced from her for the same offense committed by her subsequently to her condonation.

      Divorce — Adultery—Charge.
    In a suit for divorce on the ground of adultery, respondent requested the court to charge as follows: The two essential elements of the offense are, first, opportunity, and, second, adulterous desire or inclination of the parties charged. If these two facts appear in conjunction, you are at liberty to draw an inference of adultery provided you are satisfied thereof by a preponderance of the evidence, and believe the testimony offered in support of the charge. Either of these two facts alone would not be enough to justify you in returning a verdict against the defendant, and if you find that either is absent, your verdict must be in her favor. Held, that the court committed no error in refusing to affirm the point, the jury having been referred to the general charge where adequate instructions were given

      Argued March 20, 1906.
    May 14, 1906:
    Appeal, No. 27, Jan. T., 1906, by-plaintiff, from judgment of Superior Court, Oct. T., 1905, No. 103, reversing judgment of C. P. No. 5, Phila. Co., March Term 1904, No. 12, on verdict for libelant in case of John E. Talley v. Susan E. Talley.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Reversed.
    Appeal from Superior Court. See 29 Pa. Superior Ct. 535.
    The opinion of the Supreme Court states the case.

      Error assigned was the judgment of the Superior Court.

      Avery B. Harrington, with him Herbert M. Boyer, for appellant.
    The wife could condone the alleged adultery of the husband: Delliber v. Delliber, 9 Conn. 233; Keats v. Keats, 1 Sw. & Tr. 334; Bernstein v. Bernstein, 69 Law Times Rep. 513; Bronson v. Bronson, 7 Phila. 504; Cumming v. Cumming, 135 Mass. 386; Seller v. Seller, 1 Sw. & Tr. 482; Jones v. Jones, 18 N. J. Eq. 33; Masten v. Masten, 15 N. H. 159; Morrell v. Morrell, 1 Barb. 318; Matchin v. Matchin, 6 Pa. 332.

      Louis B. Bunk, with him John B. Bead, Silas W. Pettit and H. B. Gill, for appellee,
    cited on the question of condonation: Astley v. Astley, 1 Hagg. Eccl. 714; Peck v. Peck, 44 Hun, 290; D’Aguilar v. D’Aguilar; 1 Hagg. Eccl. 773; Dance v. Dance, 1 Hagg. Eccl. 794; Wood v. Wood, 2 Paige Ch. 108; Johnson v. Johnson, 1 Edw. Ch. 439 ; Hofmire v. Hofmire, 7 Paige, Ch. 60; Grosvenor v. Grovesnor, 34 W. R. 140; Ellis v. Ellis, 4 Sw. & Tr. 154 ; Merrill v. Merrill, 58 N. Y. Supp. 503 ; Moorhouse v. Moorhouse, 90 Ill. App. 401; Gardner v. Gardner, 9 No. Dak. 192 (82 N. W. Repr. 872); Fisher v. Fisher, 93 Md. 298 (48 Atl. Rep. 833); Costello v. Costello, 191 Pa. 379; Akers v. Akers, 22 Pa. C. C. Rep. 550; City of Pittsburg v. Kalchthaler, 114 Pa. 547.
   Opinion by

Mr. Justice Brown,

The appellant was the libellant in the common pleas in an application for a divorce from the appellee on the ground of adultery. On issue joined there was a verdict sustaining libellant’s complaint, and a decree was subsequently made divorcing him from his wife. On her appeal to the Superior Court, she complained, (1) of the refusal of the court below to permit her to offer testimony as to her character for virtue and chastity; (2) of the refusal to allow her to show that her husband had been guilty of adultery during the time she lived with him as his wife, and (3) of the failure of the court to adequately instruct the jury on the law as stated in two points submitted by her. The assignments in support of her first and third complaints were overruled, but her contention that she ought to have been allowed to prove the adultery of her husband was sustained, and the decree reversed, with an order awarding a new trial. On this appeal by the libellant the appellee renews her three complaints, and the case, as she again presents it, is what it would have been if her appeal had been to us instead of to the Superior Court. Though not required to pass upon anything but the question raised by the appellant’s assignments, wo have considered those renewed before us by the appellee, and are of opinion that her assignments, dismissed by the Superior Court, ought not to have been sustained. We say this that she may know she was not wronged by its disposition of them.

The second assignment of error in the Superior Court raised the question of the correctness of the ruling of the trial judge that the wife, in view of her admission of her condonation of her husband’s alleged adultery, could not set it up as a bar to his right to a divorce from her for the same cause. After it was stated in the opinion of the Superior Court that it must be assumed that the libellant had committed adultery, as set forth in the offer, the somewhat anomalous statement almost immediately follows, that all the members of that court were “ of the opinion that the court erred in not admitting the evidence to sustain the offer giving rise to the assignment under discussion, and then it would be a question for the consideration of the trial judge whether the evidence was sufficient to go to the jury on the question of the commission of the crime of adultery by the husband during his marital relations with the respondent.” The members of that court, however, did not agree as to whether the wife, assuming that the husband had committed adultery, could have condoned his offense. Under the offer brought before the court by the second assignment of error, it was bound ■to assume that the proof would come up to the offer, and the question was squarely before it whether the wife could condone the offense of her husband so as to allow him to be divorced from her for the same offense committed by her subsequently to her condonation. That question, which is now before us, ought to have been decided by the Superior Court.

The witness by whom the adultery of the libellant was to be proved was the respondent herself. The offer was to prove that on or about September 10, 1901, when they were living together as husband and wife, he had committed that offense. This was more than two years before McDermott was caught in the house with her. After the offer had been made, in reply to a question put to her by the trial judge, she said, that after she knew from the condition of her husband’s clothes that he had committed adultery, she continued to live with him as his wife for two years. What took place between the c.ourt and the witness was as follows : By Judge Ralston: “ Q. When did you know of that? A. I know from the condition of his clothing, Q. When? A. The 10th of September. Q. The same night? A. Yes, sir. Q. And you lived with him as his wife after that ? A. Yes, sir. Q. For two years ? A. Yes, sir.” This is all that appears in the record as to the husband’s alleged infidelity and the wife’s condonation of it. There was no offer to prove that after September 10, 1901, he ever was unfaithful, nor was there any offer to show anything that would bring the respondent within the cases holding that, under the particular circumstances surrounding her condonation, she ought not to be held strictly to it. We must pass upon the effect of her condonation in the light of what is before us, and it discloses nothing but a single offer to prove the adultery of the husband at or about a fixed date, coupled with an admission that the respondent had absolutely condoned it. Assuming that the proof - would have sustained the offer, and that the jury would have found that the husband had committed adultery at the time stated, they would have been further compelled to find that the wife had unconditionally condoned it, for such was her ad’mission. There was no offer to prove anything else, and the narrow question is whether the learned trial judge erred in not allowing the respondent to prove the adultery of her husband, in the face-of her admission of her condonation of it, neither qualiñed nor explained, and with no offer to qualify or explain it.

By section 7 of the act of March 13, 1815, 6 Sm. L. 286, it is declared: “ In any action or suit commenced in the said court for a divorce for the cause of adultery, if the defendant shall allege and prove that the plaintiff has been guilty of the like crime; or has admitted the defendant into conjugal society or embraces, after he or she knew of the criminal fact; or that the said plaintiff (if the husband) allowed of the wife’s prostitution, or received hire for them, or exposed his wife to lewd company, whereby she became insnared to the crime aforesaid, it shall be a good defense and a perpetual bar against the same.” Under the provision that if a defendant shall allege and prove that the plaintiff has been guilty of the like crime of adultery, it shall be a good defense and a perpetual bar against a decree in divorce, the Superior Court could not agree as to whether the respondent could have condoned the offense so as to enable her husband to obtain a divorce from her for her subsequent adultery. There is no room for disagreement as to this.

'’The act does not declare that adultery cannot be condoned, but, on the contrary, expressly provides that its condonation shall be a good defense against the suit of the condoning husband or wdfe for a divorce from the sinning, but forgiven, respondent. A divorce cannot be procured by a libellant on the ground of the adultery of the respondent, if after he or she, knowing the fact, again takes the latter into conjugal society or embrace ; but if, after such society or embrace and forgiveness, the offense is repeated, without renewed forgiveness, the wronged husband or wife may ask that the marital bonds be sundered. After condonation the parties start de novo, and the forgiven one is not to be thereafter confronted with a forgiven sin as a bar to the right to be separated from the other for subsequent marital infidelity committed by him or her. “ Condonation means the blotting out of the offense imputed, so as to restore the offending party to the same position he or she occupied before the offense was committed. The term ‘ forgiveness’ as it is commonly current in the English language, does not fully express the meaning of ‘condonation.’ A party may forgive in the sense of not meaning to bear ill will, or not seeking to punish, without at all meaning to restore to the original position: ” Keats v. Keats, 1 Sw. and Tr. 334. “ Condonation restores equality before the law. If the injured party is willing to forgive the offense the law may well give full effect to that forgiveness, and not extend to such party the temptation, the encouragement, the license, to run through the whole calendar of matrimonial offenses without redress at the hands of the other party: ” Cumming v. Cumming, 135 Mass. 386.

In Bronson v. Bronson, 7 Phila. 405, the late Chief Justice Paxson, then on the lower court, in construing the act of 1815, clearly recognized the rule that by a condonation of the offense of adultery the parties start anew on their matrimonial career. And the law encourages condonation, for it tends to keep together husband and wife — often the parents of children — and to preserve the home, which otherwise might be broken up.

The words of the act of 1815 do not require the shocking construction that an erring husband, who has been forgiven by his wife and sins no more himself, can never be released from her if she subsequently becomes an adulteress. Such a construction would mean a license to her to bear a brood of bastards in his home, to be supported by him and to share his estate with the children of his own loins. Though the moral guilt of an adulterer is as great as that of an adulteress, he cannot bring spurious offspring into the home and impose them upon his wife as her children, but she can perpetrate this wrong upon him; and it may be for this reason that the right of divorce so freely given to the husband in the Hebrew Scriptures was withheld from the wife, as it seems to have been among the Bomans until the time of Julius Caesar.

The decree of the Superior Court is reversed and that of the common pleas is affirmed.


author: Mr. Justice Stewart,

text:
    Shaffer, Appellant, v. Roesch.

      Negligence — Collision between wagon and car — Evidence.
    In an action against the owner of a butcher wagon to recover damages for personal injuries, it appeared that on the morning of the accident, plaintiff boarded a summer street car, and while in the act of stepping from the running board into the car, which was then moving at the usual rate of speed, was struck in the back by the end gate of the wagon, which was standing with horses to the north, in charge of its driver on the west side of the street about twelve inches frotn the track. It appeared that the gate of the wagon had been opened for purposes of delivery and was closed back along the side of the wagon next the track. As the car came near the wagon the gate swung out towards the car, plaintiff was struck and the gate was broken loose from the wagon. There was nothing to show that force was applied by anyone so as to cause the gate to swing outward. The uncontradicted evidence was that whatever started the gate came from the front of the wagon where no one was standing. Defendant’s theory was that the advancing car, by driving a current of air behind the gate to the side of the wagon, displaced the gate from the wagon’s side and threw it out towards the track. The trial judge left it to the jury to determine whether the force supplied came from the wagon, or from the front. Held, that this charge gave plaintiff a larger opportunity for recovery than he was entitled to, inasmuch as there was no evidence that force had been applied to the end gate from behind, but as the verdict was for defendant the verdict should be affirmed.
    In such case an ordinance which required that wagons in stopping on the streets should stop on the right of the highway, is immaterial, although the wagon at the time of the accident was on the left-hand side of the street. The purpose of such an ordinance was merely to secure an orderly movement of traffic, and not to prevent accidents from end gates which might swing either to the right of or the left according to the construction of the wagon.
    Argued March 22, 1906.
    Appeal, No. 19, Jan. T., 1906, by-plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1903, No. 3,812, on verdict for defendants in case of Joseph H. Shaffer v. Charles Roesch, William Roesch, Charles Roesch, Jr., and George Roesch, trading as Charles Roesch & Sons.
    Before Mitchell, C. J., Fell, Brown, Mestkezat and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Davis, J.
    The facts .are stated in the opinion of the Supreme Court.

      The court charged in part as follows:
    [It is for you to find from the testimony whether the gate was swung open from the back, or was swung from the front by reason of the motion of the car. If the car in passing forced the gate around, then that was such an accident as the defendant was not liable for. If the accident was caused by the opening of the gate from the rear, the defendant is liable. In the former case, the accident was of süch a rare character that it cannot be said that an ordinarily prudent and careful man would have provided against it, so that, after all, the crux of the case is : In which way was the gate thrown open, and what caused it to be thrown around ? It is admitted that the gate caused the accident, and, I repeat, that if the testimony convinces you that somebody, whilst these men were standing there, carelessly and imprudently threw the gate around as the car was approaching, and it struck the plaintiff, the defendants would then be guilty of negligence, and the plaintiff would have a right to recover. If, on the other hand, you believe from the evidence that the wagon was standing on an incline which caused the gate to lean towards the wagon, and that the car, by its speed, and the effect of that upon the air, drew the gate around from the front, and it unfortunately struck the plaintiff, whilst it is unfortunate, the defendant is not guilty of negligence, because in that case it would be an accident, unavoidable, and one for which no one can be held responsible.] [2]
    Defendant presented this point:
    2. If you believe this accident happened because the draught of air caused by high speed of the car drew the gate of the wagon out, causing it to strike the plaintiff, then this case belongs to that class of unforeseen and unavoidable accidents which cannot be guarded against, and the verdict must be for the defendant. Answer : I affirm that point. [3]
    Verdict and judgment for defendants. Plaintiff appealed.

      Errors assigned were (1) in rejecting the ordinance ; (2, 3) above instructions, quoting them.

      William O. Gross, with him Harry I. Heistand, for appellant.
    The ordinance was admissible in evidence: Lederman v. Penna. R. R. Co., 165 Pa. 118; Davidson v. Traction Co., 4 Pa. Superior Ct. 86; Penna. Co. v. James, 81* Pa. 194; Ubelmann v. Am. Ice Co., 209 Pa. 398.
    May 14, 1906 :
    Admittedly, this accident happened either by some one throwing the tail-gate out from the back of the wagon as the car passed by, or the gate, having been put more or less closely against the side of the wagon before the car came, came out by suction or in some other way while the car was passing. The plaintiff’s evidence tended to establish the former, and the defendants’ the latter. We contend that no matter whether the former or latter, the defendant is equally liable, because by exercising the care of a reasonably prudent man, under the circumstances, the defendant should have foreseen the possibility of an accident and could have prevented it: McIlvaine v. Lantz, 100 Pa. 586 ; Devlin v. Beacon Light Co., 198 Pa. 583.

      Greorge L. Crawford, of Crawford Lo ughlin, for appellee.—
    An ordinance does not create a civil liability unless its violation was the proximate cause of the accident: Sewell v. .Moore, 166 Pa. 570; P. & R. R. R. Co. v. Boyer, 97 Pa. 91; Simmons v. Penna. R. R. Co., 199 Pa. 232.
    The defendants were not guilty of negligence in using their wagon with its tail-gate arranged as it was, being in common use: Kilbride v. Carbon Dioxide, etc., Co., 201 Pa. 552.
   Opinion by

Mr. Justice Stewart,

Plaintiff boarded a street car moving southward on German-town avenue, and while in the act of stepping from the running-board into the car, the car then moving at the usual rate of speed, was struck in the back by the end gate of a wagon belonging to defendants, which was standing in charge of defendants’ employee on the west side of the street, about twelve inches from the track. He sought in the action to charge the defendants with negligence and liability for the injuries he received. The case was submitted to the jury, and their finding was for the defendants. Since the question of defendants’ negligence, and that of plaintiff’s contributory negligence, were both passed upon, we are unable to say which governed in the determination; but the assignments of error leave only for our consideration the instructions of the court with respect to the former. The immediate cause of the accident was the displacement'of the end gate at the moment when the car passed the wagon. The wagon was employed in supplying dealers with meat. For some little time it had been standing close to the curb in a line parallel with the street in front of a store, and according to defendants’ witnesses — and there is nothing in the evidence to contradict or discredit them — the end gate of the wagon was opened for purposes of delivery, the gate being closed back along the side of the wagon next the track. It was in that position, facing north, when the car came along going south, with a clearance of twelve inches. Not a witness called by the plaintiff saw force applied by anyone that caused the gate to swing outward from the side of the wagon. Several saw it swing out towards the approaching car, saw the plaintiff struck, and saw the gate broken loose from the wagon. It was urged as part of the plaintiff’s contention that from the facts as stated an inference of negligence arose, which defendants were called upon to disprove. On the other hand, the theory advanced by defendants was, and this was the explanation of defendants’ witnesses, that the advancing car, by driving a current of air behind the end gate to the side of the wagon, displaced the- gate from the wagon’s side and threw it outward toward the track. The learned trial judge left it to the jury to determine whether the force applied came from the wagon where the defendants’ employees were standing at the time, or from the front; instructing them that in the former case, the accident should be referred to the negligence of defendants’ employees ; and in the latter, it should be regarded as an unforeseen and inevitable accident for which defendants could not be held responsible. As we view the case, this instruction gave the plaintiff a larger opportunity for recovering than he was entitled to. As we have said, there was absolutely no evidence that force had been applied to the end gate from behind, nor were such conditions shown as made any inference to this effect at all reasonable; while, on the other hand, there was testimony which, if believed, and there was nothing to discredit it, was conclusive of the fact that whatever the force was that threw back the gate, it came from the direction in which the car was advancing; that is to say, from the front of the wagon where no one was standing. Assuming that such was the fact, defendants stood clear of negligence. It cannot be said that they failed in the duty of exercising reasonable care, and that was all that was required of them. The wagon was of the ordinary construction with respect to its end gate, and was being used in the common and familiar way. Of course, had the gate when thrown back against the side of the wagon been bolted or padlocked there it would not have swung open, and the accident would not have happened ; but, in view of the common and general use of just such conveniences as wore used in this case in marketing supplies to stores, such precautions would be extraordinary, and the probability of an accident such as this occurring would be so remote that to require them might well be regarded as unreasonable. Accidents occur in an infinite variety of ways, and it is not in human ingenuity to avoid them entirely. It is not ingenuity, however, that the law requires, but reasonable care under the circumstances of the particular ease. The conditions here might have suggested to a mind specially informed with respect to such matters that a wind current created by a moving car might throw back the end gate, but such a result would hardly be expected by the ordinary person, and least of all, perhaps, by persons for years accustomed to managing wagons of this kind and in this way, and observing the same general use of them by others, without anything in their experience or observation to suggest the possible occurrence of such accidents.

On the trial, plaintiff offered in evidence a city ordinance which requires that wágons in stopping on the streets should stop on the right of the highway. Defendants’ wagon, at the time of the accident, was on the left. Had it been facing the south, the direction in which the ear moved, the gate would have opened towards the pavement, and of course, the accident could not have occurred. The court’s rejection of the evidence is assigned for error. In Ubelmann v. American Ice Company, 209 Pa. 398, we held that a municipal ordinance and its violation, are matters of evidence to be considered with all the other evidence of the case; but we further held there that this rule is limited to cases in which the ordinance relates to the alleged negligent act under investigation; that ordinances and their violation are admissible not as substantive and sufficient proof of a defendant’s negligence, but as evidence of municipal expression of opinion on a matter on which the municipal authorities had acted that the defendant was negligent, and that as such expression they are to be taken into consideration with all other facts of the case. In illustration of what is here meant, the case of Foote v. American Product Company, 195 Pa. 190, is cited, where an ordinance requiring all vehicles, including bicycles, to keep to the right had been disregarded by the driver of a wagon which collided with a bicycle to the injury of the latter and its rider. Clearly in the case cited, the ordinance was a manifest expression of opinion in regard to a positive danger that attended the rapid movement of vehicles upon narrow streets in opposite directions, a danger so apparent as to reqrdre municipal regulation. The ordinance there should have been admitted under the rule stated, because it related to the particular negligent act under investigation. This cannot be affirmed of the ordinance that was offered here. The purpose of this ordinance could not have been to require end gates of wagons to swing out over the pavements rather than over the streets in order to avoid such accidents as this which is attributed to defendants’ negligence. In this ease, the end gate swung open to the right, but so far as appears, it was not because of any general rule in regard to such matters, or any regulation requiring it. Had there been an ordinance requiring end gates to be swung so as to open to the right, it might well be argued that such ordinance in connection with the one offered related to the alleged negligent act under investigation; but in the absence of all rule or regulation on the subject, it is manifest that the only purpose of the ordinance was to secure an orderly movement of traffic along the streets without interruption by blocking or congestion; and that it was convenience and expedition and not safety that was the end in view. Had the element of danger to safety entered into the ordinance at all, it could not have been because of the conditions that made the accident here complained of possible. For the reason that the ordinance in this sense is not related to the act complained of as negligent, and is not a municipal expression of opinion on such a state of facts as this case presents, the offer was properly refused.

The assignments of error are overruled and the judgment affirmed.


author: Mr. Justice Bbown,

text:
    Burns v. Ross, Appellant.

      Recording acts — Names—Christian names — Similarity of names — Index.
    When it is commonly known that certain first, or Christian, names are interchangeably used, and the initial and dominant letters of each are identical, indicating to the eye that they are the same, and giving the same sound and substance to each, the judgment index must be searched for each.
    A purchaser from the heirs of Francis Ross is bound to look for liens indexed in the decedent’s lifetime against Frank Ross.
    Argued March 22, 1906.
    Appeal, No. 3, Jan. T., 1906, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1886, No. 313, on verdict for plaintiff in case of Frank Bums, surviving partner with Thomas Garrick, trading as Thomas Canicie and Company, v. Frank Ross, defendant, with notice to Harry J. Makiver, terre-tenant.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Scire facias to revive judgment. Before Wiltbank, J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for |6,125. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      James W. Laws, for appellant.
    The purchaser is bound to take notice of liens appearing on the judgment index, but he is not bound to look beyond it, and if his search discloses the existence of no lien entered there against his vendor, he may complete the transaction and pay over the purchase money in safety : Crouse v. Murphy, 140 Pa. 335; Zimmerman v. Briggans, 5 Watts, 186; Wood v. Reynolds, 7 W. & S. 406 ; Heil's App., 49 Pa. 453 ; Hutchinson’s App., 92 Pa. 186 ; Delaney v. Becker, 14 Pa. Superior Ct. 392; Rusterholtz v. Brown, 10 Pa. Dist. Rep. 21; Work v. Darby, 13 Pa. C. C. Rep. 269.

      James Alcorn, for appellee.
    The appellee contends that the judgment against “ Frank Ross ” was a lien upon the property in the name of “ Francis Ross,” and that Frank and Francis are the same names, particularly in a case where the person is known by and uses both names, and in connection with his real estate where he is the actor uses the name “ Frank ” only. The judgment was indexed in the proper name of the defendant : Crouse v. Murphy, 140 Pa. 385 ; Zimmerman v. Briggans, 5 Watts, 186; Delaney v. Becker, 14 Pa. Superior Ct. 392; Myer v. Fegaly, 39 Pa. 429; German B. & L. Assn. v. Grecula, 5 Lack. Jurist, 28.
    May 14, 1906:
   Opinion by

Mr. Justice Bbown,

On February 1,1887, the firm of Thomas Carrick & Company, of which the appellee is the surviving member, entered a judgment against Frank Ross. The note on which it was entered had been given by Francis Ross, who signed his name to it “ Frank Ross.” At the time the judgment was entered Ross was the owner of the property purchased by the appellant from his heirs on March 14,1904. He had acquired title to it on February 21, 1868, from Thomas Hodgson, by a deed in which as the grantee he was named “Francis Ross.” He died September 23, 1899, on which date the judgment held by the appellee was revived. When the appellant took title from the heirs of Francis Ross, among whom was a son, Frank Ross, he had a search made for liens against the property. This search was for the liens of judgment against the heirs entered after they had acquired title under the intestate laws and for those which had attached in the lifetime of Francis Ross. From September 23, 1899, to March 14, 1904, search was made for judgments and mortgages given by Frank Ross, one of the sons, and for the five years prior to the death of the father the search was only for mortgages and judgments indexed against Francis Ross, no attention having been paid to the name “ Frank Ross.” Upon the report of the searcher that there was but one judgment indexed against Francis Ross, the decedent, which was not a lien against the property, and that there were no liens against Frank Ross, the son, the appellant took the title. In June, 1904, the firm of the appellee issued a sci. fa. to revive the judgment against Frank Ross, with notice to the appellant as terre-tenant. He resisted the attempt to revive it against him as the owner of the property, but a verdict was directed against him, upon which judgment was subsequently entered. On this appeal we are asked to say that, as the judgment of Thomas Carrick & Company was indexed against Frank Ross, the appellant had no notice of it as a lien upon the property belonging to Francis Ross when he purchased it from the heirs.

It is undoubtedly true that the first or Christian name of a defendant in a judgment must appear in the judgment index for the protection of an innocent purchaser, who is not bound to look beyond it for judgment liens against his vendor; but this rule must have a reasonable construction. In Crouse v. Murphy, 140 Pa. 335, the case upon which the appellant seems to place his chief reliance, we held that, under the particular circumstances surrounding that case, a judgment given by Daniel J. Murphy, but signed by him “ Daniel Murphy” and so indexed, was not a lien upon property owned and sold by him as “ Daniel J. Murphy,” as against a purchaser who looked for liens only against “ Daniel J. Murphy.” The member of the court who wrote the opinion stated that he had looked into the city directory and found the name of Daniel Murphy, with various middle letters and without any, occurring twenty times, and that to exhaust the possibilities as to D. Murphy would have required searches running into the hundreds. The purchaser was protected because he found no liens indexed “ against Daniel J. Murphy, or D. J. Murphy.” By this it was clearly intimated that if a judgment had been indexed “ D. J. Murphy,” it would have been notice to the purchaser that it might be a lien against property owned by Daniel J. Murphy.

What was reasonably required of this appellant? In answering this we disregard the contention of the appellee, that he ought to have been put on notice by the indexing of other judgments and mortgages in the name of Frank Ross given by Francis Ross, who was, according to the testimony produced by the appellee, commonly known to others than the appellant as Frank Ross. We pass only upon the simple question whether a purchaser from the heirs of Francis Ross was bound to look for liens indexed in his lifetime against Frank Ross.

In Jones’s Estate, 27 Pa. 336, the court below was reversed for holding that a judgment docketed against “ A. Jones” did not give the holders of it priority of lien over those holding judgments subsequently docketed against “Abel Jones,” as whose property the real estate was sold by the sheriff, and in awarding the fund to those lien creditors whose judgments had been docketed against “ A. Jones,” it was said by Woodward, J.: “A description of persons by the name by which they are commonly known, is sufficient in pleading, either criminal or civil, and as much, I presume, as the act of assembly, prescribing judgment dockets, meant to require. The use of names is to describe the individual of whom we speak, so as to distinguish him from all other persons. They are like definitions in mathematics, though less exact. Where two names, said Judge Washington, in Gordon v. Holiday, 1 Wash. C. C. R. 289, have the same original derivation, or where one is an abbreviation or corruption of the other, but both are taken promiscuously and according to common use to be the same, though differing in sound, the use of one for the other is not a material misnomer. If in common use the names be the same, the person cannot be misnamed if either be used. In Fenton v. Perkins, 3 Mo. 18, it was held that courts take judicial notice of the abbreviation of a man’s Christian name, though a doubt was made about an abbreviation of the family name.” Under the authority of this case a judgment indexed “ F. Ross” might have been notice to a purchaser looking for liens against “ Francis Ross.”

The indexing of the name of the defendant in a judgment as he is commonly known is not, as a general rule, sufficient to meet the requirements of the Act of April 22, 1856, P. L. 532, relating to the indexing of judgments; but its requirements are met when the first or Christian name of a defendant is so indexed that a prospective purchaser examining the index ought to know from it of the existence of a lien against the property which he is about to purchase. When it is commonly known that certain first or Christian names are interchangeably used, and the initial and dominant letters of each are identical, indicating to the eye that they are the same and giving the same sound and substance to each, the judgment index must be searched for each. In the absence of a statutory requirement that the Christian name of a defendant in a judgment must be indexed exactly as it is written in the deed under which he holds title, any other rule would offend reason. When the appellant, as a prospective purchaser of the Ross property, was looking for liens against Francis Ross, why should he not have looked for those indexed against Frank ? The two names are the same, and are used, as is universally known, as being the same : Standard Dictionary in English, vol. 2, p. 2138; Webster’s International Dictionary, p. 1902. When looking for liens against “Jacob” a searcher must know that the world knows no difference between “ Jacob” and “Jake,” and that a judgment indexed against “Jake” may be a lien on the property of “ Jacob.” As a rule “ Mike” is used for the more dignified “ Michael,” and the bearer of the latter name as the grantee of a title to him is generally known, not only to himself, but to the community in which he lives, as plain “Mike;” and so a stronger illustration is the name “ Frank” given to “ Francis.” It is a matter of common knowledge that seldom is one bearing the Christian name of “ Francis” known by any other name than “ Frank.” These illustrations need be pursued no further. When the appellant was looking for the title to be free from encumbrances cast upon it by Francis Ross it was his duty to see that the owner had not encumbered it in the name of “ Frank Ross.”

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


author: Per Curiam,

text:
    Brazier, Appellant, v. Philadelphia.

      Automobiles — Municipalities—State act — City ordinance — License.
    The ordinance of the city of Philadelphia of December 2, 1902, requiring the owner of an automobile to take out a license and to carry a city license tag is not repealed or superseded by the Act of April 19, 1905, P. L. 217, which provides that the owner of an automobile shall procure a license from the state highway department of the Commonwealth, and that state license tags shall be carried exhibiting the license number and the number of the year.
    Argued March 23, 1906.
    Appeal, No. 378, Jan. T., 1905, by plaintiff, from decree of C. P. No. 4, Phila. Co., Dec. T., .1905, No. 963, refusing an injunction in case of II. Bartol Brazier, Charles S. Wurts, Jr., and Samuel Y. Heebner v. City of Philadelphia, John Weaver etal.
    Before Mitchell, C. J., Pell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Willson, P. J., filed the following opinion:
    On December 26, 1902, an ordinance of the city of Philadelphia was approved, which was intended to regulate the use of automobiles and similar conveyances within the limits of the city. It prescribed that, before any such vehicle could be used, a certificate must be procured from the Bureau of Boiler Inspection, setting out various regulations or requirements in regard to the construction and appliances of the vehicles. These regulations all looked to the element of safety in the use of the machine. In addition, the ordinance provided that no person should drive an automobile without obtaining a license from the department of public safety. Preliminary to the obtaining of a license it was necessary for the applicant to furnish satisfactory evidence of his competency. It was also provided that no person in charge of an automobile or similar vehicle should drive or operate the same at a rate of speed greater than seven miles per hour, within the built-up portions of the city, and at a rate greater than eight miles per hour in other portions of the city. Various other regulations were prescribed in regard to the exhibition of lights at night and the placing of tags bearing license numbers upon the vehicle. Various other regulations were also contained in the ordinance, which, however, it is not necessary to enumerate or refer to. By express provision, the clause relative to the using of licenses was made inapplicable to drivers of automobiles from other localities passing through the city, for a period of forty-eight hours.
    On April 23, 1903, an act of assembly was passed which related to the same class of vehicles, and provided that no such vehicle should be operated on the highways of the commonwealth without being registered in the office of theprothonotary of one of its counties. The prothonotary was directed to enter the application for registration in a book kept for the purpose, and in a proper case to issue a certificate of registration to the applicant. It was directed that the certificate be placed in a prominent position on the vehicle, and that the registration number should be displayed conspicuously upon the back of the vehicle. The statute provided that no person should be allowed to use or operate a motor vehicle at a speed greater than eight miles an hour within the corporate limits of any cities and boroughs of the commonwealth, or at a rate exceeding a mile in three minutes outside of the corporate limits thereof. Under the provisions of the-statute, no person was allowed to use or operate such a vehicle on the highways until the owner should have procured a license from the treasurer of one of the cities or comities of the commonwealth, and this license was ordered to be displayed conspicuously upon the back of the vehicle.
    Under the ordinance previously referred to, and the act of assembly just mentioned, the use of automobiles within the limits of the city of Philadelphia has grown to be extensive, and, so far as appears, there has been no practical difficulty in the enforcement of both ordinance and statute or any suggestion that they were incompatible or inconsistent. It is claimed on behalf of the plaintiffs, however, that whatever may have been the case previously the condition of affairs was altered when the act of assembly of April 19, 1905, came into existence. That statute enacted that no motor vehicle could be operated within the highways of the commonwealth until the operator of the vehicle should procure a license from the state highway department of the commonwealth. That department was directed to enter the application for a license in a particular book and in a proper ease to issue a license to the applicant, together with two tags exhibiting the license number and the number of the year. For this license, as well as for the licenses called for by the ordinance of 1902, and the act of assembly of 1903, a fee was to be paid. It is provided in the statute that not more than one state license number should be carried upon front and back of the vehicle, and that a “ license number obtained in any other place or state shall be removed from said vehicle while the vehicle is being used within this commonwealth.”
    Various other provisions are contained in the act in regard to the exhibition of lights, display of tags, appliances of the machines, carrying of licenses, etc., but these need not be detailed.

      In regard to the rate of speed it was enacted that “ no person or persons shall be allowed to use, operate or drive any motor vehicle, as aforesaid, on any of the public streets or public highways of the cities, boroughs, counties or townships of this commonwealth at a speed greater than a mile in six minutes, within the corporate limits of any of the cities and boroughs thereof; outside of the corporate limits of any city or borough, as aforesaid, the lawful rate of speed shall not exceed one mile in three minutes.” There was a proviso that in townships of the first class the commissioners may, by ordinance, fix a rate of speed of not less than one mile in six minutes; and also that the section containing the provision as to rate of speed should not permit any person to drive an automobile faster than is reasonable, “regarding traffic, danger, or injury to property or person, at any time or at any place.”
    It is contended on the part of the plaintiff that this act of 1905 must be regarded as superseding and obliterating the ordinance of 1902, and as supplying the sole method of regulating the use of automobiles within the commonwealth. Plaintiffs are taxpayers within the city, and being apprehensive that the municipality, in making preparation for carrying out the provisions of the ordinance for the year 1906, will be obliged to make certain expenditures of the public funds, have filed the bill in this case to prevent the public officers from taking any steps in that direction.
    It is, of course, beyond all question that, if the statute and the ordinance are inconsistent, or, if the statute can fairly be regarded as intended to supplant the ordinance, the latter must give way and the statute only have effect given to it. Paramount authority of the lawmaking power of the state over the lawmaldng power of the city must be conceded. The question, therefore, comes down to this: Is there any necessary incompatibility between the statute and the ordinance, or does it sufficiently appear that the statute was intended to furnish the sole rule of conduct and regulation for the use of automobiles and similar vehicles ?
    In the absence of any state legislation covering the subject, either expressly or by implication excluding the power of the municipality to legislate upon the same, that the olty1" would have the power to enact such an ordinance as is under consideration must be conceded. That probably will not be denied. Under the general powers which were conferred on the city of Philadelphia at the time of the consolidation of the city with the old surrounding districts, and which have been acted upon ever since in numerous instances, the city undoubtedly had the right by ordinance to legislate in regard to the use of the streets for the protection and safety of its citizens. The ordinance of 1902 was passed, as it seems to us, in the exercise of full power to enact it. It contained many provisions more detailed and specific and better adapted in our judgment, to protect the people using the streets of the city from injury, than the act of 1905, and unless there is some imperative reason for holding that the ordinance has been superseded by the act, we are not inclined to reach such a conclusion. In particular we may refer to the provisions in the ordinance that the rate of speed of automobiles in the built-up portion of the city shall not exceed seven miles an hour. This is a most salutary provision, and it ought to be enforced far more rigidly than it is. It is only necessary to resort to the most cursory observation to find the evidence that many drivers of automobiles, in their desire to put their novel and rapid machines to a test of their capacity, drive such vehicles through the streets with a reckless disregard of the rights of others. That is done with an absolute disregard of the provisions not only of the ordinance, but of the statute, which, as before stated, expressly provides against an unreasonable rate of speed.
    In examining the act of 1905 for the purpose of ascertaining whether or not it contains provisions intended to take the place of a local or municipal regulation upon the same subject, it may be noted in the first place that it contains no expression of an intention to that effect. It undoubtedly provides for a state regulation for the use of automobiles ; this it does principally by the language of prohibition rather than affirmation. We are, however, not convinced that, simply because the state has undertaken to impose certain regulations applicable to the entire commonwealth, this excludes the right of a city to impose other regulations adapted to its own peculiar conditions, provided these are not inconsistent or at variance with those of a general character prescribed for the entire commonwealth. See Radnor Township v. Bell, 2T Pa. Superior Ct. 1. If there be such inconsistencies between the statute and the ordinance, then to the extent that these exist, for the reasons already indicated, the ordinance must give way. It may be said that, if both statute and ordinance are to stand in full, then the operator of an automobile must take out two licenses before he can run the vehicle within the commonwealth. That may be, but we fail to regard that as a conclusive objection in the case. Under the terms of the ordinance in question, the license to be obtained from the city is one which is based upon other examinations and requirements than such as were imposed by the statute, although such examinations and infringements we do not regard as inconsistent with anything contained in the statute. No satisfactory argument has been presented to ús against the right of the city to require such additional guarantees, and to require also that a license shall be obtained showing that the city’s demands have been complied with.
    It has been argued that the act of 1905 was. intended to provide that only one license number or tag shall appear upon the front and back of the vehicle when operated on the highways, but we do not regard this to be the proper construction of the act. In its second section it is provided that only one “ State license ” number shall be carried upon the vehicle. There is no prohibition against the carrying of a license which was not a state license, and the limitation of the prohibition to a single class of licenses implies that it was not intended to exclude a local municipal license from being carried upon the vehicle. And when in the same section it was enacted that a “ license number obtained in any other place or State shall be removed from said vehicle while the vehicle is being used within this Commonwealth,” we understand that no reference was intended to be made to any such license as the city would issue under the ordinance in question. We do not think that the word “ place ” can properly be regarded as applying to a municipality within the commonwealth. It seems to us very plain that what was intended to be enacted by the clause just cited was that a foreign license number should be removed from any vehicle which comes from another territorial division outside of the state into the limits of the state, and only in such a case. The language “ while the vehicle is being used within this Commonwealth ” seems to indicate clearly that the vehicle in mind was one which comes from outside the commonwealth.
    It may, however, be argued that there is an incompatibility between the statute and the ordinance in the different provisions which are contained in the two with reference to the rates of speed at which an automobile may be driven. The statute provides that no person shall be allowed to operate such a vehicle above a certain maximum speed under certain conditions. The question might arise as to what is meant by the term “ allowed,” and as to who-or what authority might allow the use or operation thereof. Perhaps it would not be straining the force of language to construe this provision as referring to the constituted authority having jurisdiction over highways in any particular district. Aside from this point, however, it must be noted that the legislature only prohibited the driving of automobiles or similar vehicles at a higher rate than the fixed maximum speed. It did not state that they might be driven at that rate, except by implication, and that implication may be regarded as having been overcome by the further provision that the prohibition against exceeding a certain maximum rate should not be construed as permitting any person to drive an automobile at a greater speed than is reasonable. It does not seem to us that this restriction of the force of the provision regulating the rate of speed should be regarded as applicable only to a particular case, where the question of the reasonableness of the speed might come before a jury, say, in an action for negligence. In the absence of any prohibition against local legislation, it would rather seem to us that the legislature intended that the local authorities having jurisdiction over such a class of subjects, and having special knowledge of -the conditions'of their own localities, might, by ordinance, determine what should be a reasonable rate of speed. This we believe to be a permissible construction of the statute before us, and we believe that such a construction will best promote the interests of the various communities of the commonwealth composed of people living in closely built towns and cities, and that no unreasonable restrictions are thereby placed upon people who desire to make use of the modern horseless vehicles, with due regard to the rights of others.
    We are unable to find in other portions of the act of 1905 anything which conflicts with the ordinance of 1902; and, in view of what we have already stated, we have reached the conclusion that the injunction prayed for must be refused.

      Error assigned was refusal of injunction.

      Ira Jewell Williams and Hampton L. Qarson, attorney general, for appellants.
    Highways being universally the property of the state, are subject to its absolute direction and control: Phila. & Trenton R. R. Co., 6 Wharton, 25; Com. v. R. R. Co., 27 Pa. 339; Philadelphia v. River Front R. R. Co., 173 Pa. 334 ; Allegheny v. Ry. Co., 159 Pa. 411; Com. v. Harris, 10 W. N. C. 10.
    The power of city councils over the highways is limited and subject to the sovereign power of the commonwealth : Com. v. Moir, 199 Pa. 534 ; Philadelphia v. Fox, 64 Pa. 169.
    An ordinance inconsistent with or repugnant to an act of assembly is void: Gibbons v. Ogden, 22 U. S. 1; Lesley v. Kite, 192 Pa. 268; Jadwin v. Hurley, 10 Pa. Superior Ct. 104; Com. v. Brown, 210 Pa. 29.
    A license to run a vehicle “ is a permission or authority to do that thing; and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize: ” Sinnot v. Davenport, 63 U. S. 227 ; Youngblood v. Sexton, 32 Mich. 406 ; Furman Farm Imp. Co. v. Long, 113 Ala. 203 (21 So. Repr. 339) ; Yount v. Denning, 52 Kans. 629 (35 Pac. Repr. 207) ; United States v. Cutting, 70 U. S. 441.
    In the absence' of express authority, no subordinate may require an additional license to do that which the sovereignty has granted permission to do : Potts v. Smith Mfg. Co., 25 Pa.Superior Ct. 206; Schollenberger v. Pennsylvania, 171 U. S. 1 (18 Sup. Ct. Repr. 757) ; Lancaster County v. Frey, 128 Pa. 593; Chinese Laborers, 13 Fed. Repr. 291; Philadelphia v. Ridge Ave. Pass. Ry. Co., 102 Pa. 190.
    A municipality cannot, by prohibiting under cumulative penalty, an action prohibited by the state, interfere with the uniform operation of a general act of assembly : Radnor Twp. v. Bell, 27 Pa. Superior Ct. 1; Com. v. Lloyd, 141 Pa. 28.
    The clear general intent of the legislature was to establish a uniform general system regulating the subject-matter. This must necessarily be exclusive : Com. v. Iron City Brewing Co., 146 Pa. 642; Gwinner v. R. R. Co., 55 Pa. 126.
    May 14, 1906.
    Tbe ordinance of councils of December 26, 1902 has been suspended or superseded by the Act of assembly of April 19, 1905, P. L. 217, in so far as the former requires a license from the city or the carrying of a city license tag.

      Jomes Alcorn, with him Ernest Lowengrund and John L. Kinsey, for appellees.
    The United States courts and the courts of at least twenty-nine states fully support the right of a municipality to make new and further regulations in the exercise of its police power, and to enforce them by proper penalties, even though the state has previously acted by a general law in reference to the same matter: Rogers v. Jones, 1 Wendell, 237 ; Greenville v. Kemmis, 58 South Carolina, 427 (36 S. E. Repr. 727); City of Quincy v. O’Brien, 24 Ill. App. 591; Johnson v. Philadelphia, 60 Pa. 445; Atlantic & Pac. Tel. Co. v. Philadelphia, 190 U. S. 160 (23 Sup. Ct. Repr. 817); Philadelphia v. Western Union Tel. Co., 2 W. N. C. 455 ; Radnor Twp. v. Bell, 27 Pa. Superior Ct. 1.
   Per Curiam,

Decree affirmed on the opinion of the court below:


author: Mb,. Justice Stewabt,

text:
    American Bridge Company, Appellant, v. Colonial Trust Company.

      Guaranty — Contract—Construction of contract.

    An iron company agreed to supply a construction company with steel material for a bridge. The price of the steel was fixed at a certain rate per pound, the aggregate amount not being stated and not ascertainable directly from the contract. A surety company guaranteed the “payment for said material, not to exceed in the aggregate thirteen thousand dollars. ” Held, that the guarantor was only liable to pay for material, the value of which should not exceed $13,000.
    Argued March 23, 1906.
    Appeal, No. 78, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 3,595, on verdict for defendant in case of American Bridge Company of New York v. Colonial Trust Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Assumpsit on a guaranty. Before Wiltbank, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error■ assigned amongst others was in directing a verdict for defendant.

      John G. Johnson, for appellant.
    There is no reason why a surety company should be favored in the construction of a contract of indemnity prepared by itself, to any greater extent than companies which indemnify against loss by fire. The modern construction of such contracts is one which holds the surety companies to strict responsibility: Guarantee Co. of North America v. Mechanics’ Sav. Bank, etc., Co., 183 U. S. 402 (22 Sup. Ct. Repr. 124) ; American Surety Co. v. Pauly, 170 U. S. 133 (18 Supr. Ct. Repr. 552).

      Albert B. Weimer, for appellee.
    The plain meaning of the words of the guaranty is that the guarantor, if required, would pajr for material up to the aggregate amount of $13,000, but not in excess of that amount. The guarantor set the limit for its own protection. It considered the financial ability of the construction company to carry out a contract for $13,000, and limited its own liability to that amount. If the construction given to the guaranty by the plaintiff were followed, the contract of the construction company might involve the expenditure of a vast amount of money never in the contemplation of the guarantor. The construction company thus might be furnished with material to the amount of $100,000, and if it paid $87,000 of that amount, the guarantor would be liable for the balance of $13,000. Such a construction is clearly unreasonable : Fogel v. Blitz, 128 Mich. 503 (87 N. W. Repr. 640) ; Atkins v. Payne, 9 Pa, Dist. Rep. 401,

      May 14, 1906 :
   Opinion by

Mb,. Justice Stewabt,

The Vandergrift Construction Company undertook the building of a viaduct over a railroad at Newport News. It engaged the steel material required from the American Bridge Company, the appellant, by written contract, in which the price of the steel for the superstructure was fixed at a certain rate per pound, and the price for the piers and braces at a certain other rate per pound, the aggregate amount not being stated, and not ascertainable except by calculation based on the detailed drawings which were referred to in the contract, but did not accompany it. In this connection the Colonial Trust Company, appellee, made the following guaranty: “ Referring to contract dated 81st day of January, 1908, with the Vandergrift Construction Company for delivery of certain material and erection thereof at Newport News, to be used for the construction of a viaduct on the Chesapeake & Ohio Railroad Company at Twenty-sixth street in said town of Newport News, we hereby guarantee payment for said material, not to exceed in the aggregate thirteen thousand (13,000) dollars.” Pursuant to this arrangement the bridge company delivered the necessary material for the structure, to the amount in value of $15,490.88. The construction company made payments amounting to $9,019.18, and the trust company paid $3,980.82, the two sums aggregating $13,000. Default was made in payment of the balance of $2,419.88, and the bridge company brought this action against the trust company to recover on its guaranty. The court below held that by payment of the $13,000 the guaranty was fully met and discharged, and directed a verdict for the defendant. It is this ruling of the court that is assigned as error.

The contract of guaranty is somewhat unusual but free from difficulty. It means necessarily one of two things : either that the trust company will answer to the extent of $13,000 for any default that the construction company may make in paying for any and all the material furnished it by the bridge company under its contract for the viaduct, without regard to the aggregate of such material, or, that it will guarantee payment of $13,000 worth of material to be supplied the construction company, and nothing beyond. The first expresses the contention of the appellant; the second, that of the appellee. It must, we think, be conceded that the latter meaning can very properly and easily be derived from the language employed. Indeed, the language used aptly expresses such meaning. Interpreted according to the plain and ordinary meaning of the words, it is evident that what was not to exceed the demand indicated was the credit to be given the construction company. On the other hand, to give the guaranty a larger application and make it embrace the whole of the construction company’s contract, other words would have to be used; as, for instance, the words “ our liability ” before the word “ material.” As written it reads, “ said material not to exceed in the aggregate Thirteen Thousand Dollars.” Amended in the way we have indicated it would read, “ our liability not to exceed in the aggregate Thirteen Thousand Dollars.” Thus amended it would be a guaranty to the extent of $13,000 on the whole contract for whatever the aggregate might be. Except as these words are supplied, the construction contended for by appellant is impossible. By supplying them, we would be reforming the contract, not interpreting it. The obvious meaning of the contract as written is, that if the bridge company should furnish the construction company with $13,000 worth of material for the viaduct it had undertaken to build, the trust company would see that the amount was paid. Sufficient reason for so restricting the guaranty by the trust company is found in the fact that the whole amount of the construction company’s liability was not at the time ascertainable. The full amount of $13,000 having been paid the bridge company, the court below properly held that this discharged the guaranty.

Judgment affirmed.


text:
    Colgan v. O’Rourke, Appellant.

      Contract — Building contract — Rescission—Subcontractor.
    A contractor for a building operation excavated the cellars of the houses, and had the cellar walls built by another person. He then entered into a contract with a subcontractor for the superstructures. When the buildings were nearly up, one of the walls fell, and the contractor addressed a joint letter to the builder of the cellar walls and to the subcontractor for the superstructures, in which he notified them that he would hold liable whichever one of them was chargeable for the fall of the wall, and further stated that he would employ new contractors to do the necessary work. The contractor subsequently completed the operation himself. In an action by the subcontractor against the contractor, the court left it to the jury to determine whether the fall of the building resulted solely from the defective and improper cellar walls, or whether it was due to the failure of the plaintiff to do his work properly. Held, that a verdict and judgment for plaintiff should be sustained.
    Argued March 23, 1906.
    Appeal, No. 50, Jan. T., 1906, by defendant, from judgment of G. P. No. 4, Phila. Co., March T., 1898, No 124, on verdict for plaintiff in case of Frank J. Colgan v. Michael O’Rourke.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Assumpsit for work and labor. Before Willson, J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows :
    [I think, gentlemen, unless you find in the evidence something which would justify you in believing that from such a survey, such an inspection of the walls, as a man would likely or ought to give to them, a man, I mean, who proposed to enter into a contract for the erection of a superstructure upon them, something which would indicate that the foundation walls were defective and not strong enough for the superstructure, you ought to assume that it was the understanding of the parties that the plaintiff, Colgan, should go on and erect the superstructure upon these foundations as they stood.] [2]
    [The specifications which have been offered in evidence, and upon which basis the contract was made, say, “ The cellars have been excavated beneath the houses to give a cellar depth of nine feet clear of the cement floor, and the cellar walls are in place ready for the brick and stone masonry above the ground surface.” Now, according to the usual custom, which was probably followed in this case, these specifications were furnished by Mr. O’Rourke, the owner of the property, or at his instance, and they set forth as a basis for the contract, as something upon which the contract was founded, that the cellar walls were ready for the erection of the superstructure. I have referred to this at some length because it is a question which is in dispute in the case, and about which counsel do not entirely agree with reference to the rights of their respective parties. I have said to you substantially, and I repeat that, unless you find that there was something in the appearance of the walls, after such an examination as a proposed contractor would give, and ought to give, to them if he proposed to make a bid for a contract, to indicate to him that there was some weakness of the walls, he had a right to assume that the foundation walls were suitable for the erection of the superstructure, and had a right to go upon that theory.] [3]
    [Unless you believe that he could have seen, or by such an examination as I have indicated before, previous to the time he undertook to do the work and began the work, have discovered the alleged defect — in which case it would have been his duty to do the work over again after the collapse — -I say, unless you believe that he could have seen that the foundation walls were not-suitable, then if those walls gave way because of a defect in them, because of an improper construction of those foundation walls, the fault was not the plaintiff’s, and the plaintiff would be entitled to recover the amount which he had earned under the contract, and making allowance for what it cost to complete the contract, to the entire contract price.]

    [If the plaintiff did his work properly upon the basis of the contract which he had made, having no reason to suppose that there was anything in the foundation walls which made them an improper basis for the building which he undertook to erect, and by reason of no fault of his, but in consequence of a defective construction of the foundation walls themselves, of which he had no knowledge, could not have had by proper observation, then he is entitled to a verdict which will compensate him for the amount of work he did under the contract.] [5]
    [I should say in that connection that I regard it to have been his duty to go on and complete the work, making such claim as would be proper for any extra work arising out of the collapse of the building, even if he was not responsible for it, after the work was done, were it not for the fact that a few days after the building fell he was notified by Mr. O’Rourke, the owner, that he would take the reconstruction of the building entirely into his own hands. I regard that practically as a recission of the contract between the plaintiff and defendant, unless they subsequently took up the matter and waived all such rescission and resumed negotiations. The evidence upon that point, however, is not satisfactory, and is not clear. I regard the case as one which should be determined with reference to the letter written a few days after the collapse, which I regard as practically a rescission of the contract, leaving the parties to stand upon their rights as they were at that time.] [6]
    May 14, 1906 :
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Errors assigned were (3-6) above instructions quoting them.

      Edwin Jaquett Sellers and M. J. O’ Callaghan, for appellant.

      John P. Connelly, for appellee.
   Opinion by

Mr. Justice Bbown,

On September 8,1894, the appellee entered into a written contract with the appellant to furnish the stone, do the stonework and lay the bricks required in the erection of three dwelling houses. At the date of the execution of the contract the cellars had been dug by the appellant and the cellar walls had been built for him by a contractor named Schmitt. The contract with the appellee embraced only the superstructures. In the specifications upon which he made his contract there was the following clause: “ Cellars have been excavated beneath the houses to give a cellar depth of nine (9) feet clear of the cement floor, and cellar walls are in place ready for brick and stone masonry above the ground surface.” The appellee began the erection of the superstructures on September 19, 1894, and had nearly completed them when, on November 12, 1894, the south wall of one of the buildings, which had been constructed up to within four feet of the roof, suddenly collapsed. The appellant, unable at that time to determine whether the fall of the wall was due to the carelessness of the appellee in the erection of the superstructure, or of Schmitt, who built the cellar wall, wrote them the following joint letter:

“Philadelphia, Nov. 19th, 1894.

“Albert Smith,

“ Francis J. Colgan,

“ Gentlemen:—

“ I feel called upon to notify each of you that on account of the fall of the side wall of house, which would be 2838 Frankford Ave., I propose, if necessary, to do the work to the foundation wall which should have been done originally, if done in- a workmanlike manner, and to rebuild the brick and stone wall under the same conditions. I cannot at this time determine whether the fall of the wall is due to a joint neglect, or whether it is properly cha'rgeable to one of you ; an examination is required. I have determined, however, to avoid complications, to employ new contractors to do the necessary work and shall consider that both or one of you are liable to reimburse me.

“Very respectfully,

“ Michael O’Rourke.”

The learned trial judge instructed the jury that this letter was practically a rescission by the appellant of the contract between him and the appellee. In this he was correct, and the first assignment of error is dismissed. The appellant completed the dwellings himself and subsequently the-plaintiff brought this action for the damages sustained by defendant’s alleged breach of contract. As the basis of his claim he avers that the fall of the wall was due to the improper construction of the cellar walls, and not to any cause for which he was responsible.

One of the contentions of the appellant is that, as there was no evidence that he had knowledge of the incompetency of Schmitt, the contractor who built the cellar for him, the appellee cannot recover. Neither Schmitt nor his contract with O’Rourke is in the case. O’Rourke undertook himself to dig the cellar and have the walls built, and only after he had done so and stated in the specifications that the walls were in place, ready for the brick and stone masonry above the ground surface, did the appellee make his contract. The appellant must be understood as having said to the appellee: “ You have nothing to do with the cellar walls ; I have had them prepared and they are ready for the work that you are to do above them.” This was the correct view entertained by the trial judge in his instructions to the jury. At the same time their attention was called to the fact that there was nothing in the testimony to show there was anything to indicate that the walls were not proper foundation walls ; and they were further instructed that, unless they found in the evidence that which would justify them in believing that from such an inspection of the walls as a proposed contractor would give, or ought to give them, there was something which indicated that they were defective and not strong enough for the superstructures, it ought to be assumed that it was the understanding of the plaintiff and defendant that the former should go on and erect the superstructures upon the foundations as they stood. In view of what appeared in the specifications, this was as far as the court ought to have gone in protecting the defendant.

Nothing could have been made plainer to the jury than that the plaintiff could recover only if the fall of the building resulted solely from the defective and improper foundation, and, on the other hand, they were told that if the fall was due to the failure of the plaintiff to do his work properly, there ought to be a certificate in favor of the defendant. In the two points submitted by the plaintiff and in defendant’s tenth the only position that each of the parties could take under the evidence was clearly stated, and the answers to them were correct. The case involved nothing but a question of fact, which was submitted to the jury under instructions that were not only proper, but most careful in protecting every right of the defendant.

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


author: Pee Curiam,

text:
    Draper’s Estate.

      Wills — Devisavit vel non — Testamentary capacity — Evidence.
    Where the weight of testimony is in support of testamentary capacity, the testimony of insufficiently informed witnesses undertaking to testify as experts that in their opinion the testator did not have testamentary capacity will not be considered as a ground for granting an issue devisavit vel non.
    Opinions when opposed to established facts are not entitled to much respect.
    The mere fact that a testator at the time his will was made was an inmate of an insane asylum is not a sufficient ground for granting an issue devisavit vel non, where the uncontradicted testimony shows that the testator had testamentary capacity when he executed his will.
    Argued March 27, 1906.
    Appeal, No. 72, Jan. T., 1906, by-John H. Draper, from decree of O. C. Phila. Co., April T., 1904, No. 228, refusing an issue devisavit vel non in Estate of Henry Draper, deceased.
    Before Mitchell, C. J., Fell, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from register of wills.
    From the record it appeared that the testator died on June 20, 1902, leaving a will by which he gave the greater part of his estate to three nephews, children of his deceased sister, Emma E. Speakman, but leaving nothing to John H. Draper, the contestant, a son of a deceased brother. The will was. executed on June 8, 1889, in the presence of Dr. John C. Hall and Dr. William Pepper.
    Penrose, J., filed an opinion which was in part as follows :
    The whole theory of the contestant is, substantially, based upon this fact — that the decedent, when the will was made, and for many years previously, was a resident of The Friends’ Asylum for the Insane, at Frankford — having been admitted, at first in 1866, and afterwards in 1872, remaining until his death in 1902. He was a nervous dyspeptic, suffering from frequent attacks of great mental depression ; but, as the records of the institution and the uncontradicted testimony of the witnesses show, he was free from delusion or hallucination of any kind. Plis periods of depression did not affect his intellectual powers ; and when not suffering from them he was bright, intelligent, and possessed unusual strength of memory. His commitment, in 1872, stated that he was suffering from “melancholia ; ” but this, while, from the physicians’ point of view, affording justification, perhaps, for a certificate that the patient is “ insane,” is not, of itself, a necessary indication of testamentary incapacity; and, as the records of the asylum show, it was understood that the decedent was there voluntarily, and he was kept under no restraint.
    The preparation of the will was the subject of most intelligent discussion and consideration on the part of the testator. It was just such a disposition of his estate as was natural under the circumstances. His residuary legatees were the children of his only sister, with whom he had at one time resided, and to whom, so long as she lived, he was in the habit of making an allowance of 150.00 each month, which, after her death in 1887, he continued to the sons or to the one of them most requiring it. On the other hand, the nephew not included among his beneficiaries was the son of a brother who had contracted a marriage disapproved of by the family, — the nephew, himself, having been absolutely unknown to the testator until (about the time the will was executed) he had reached his twenty-first year and not seeing him more than two or three times in the whole course of his life.
    The will, as already stated, was executed in the presence of two physicians of great eminence, by whom it was attested; and this after they had satisfied themselves, as the result of most careful examination, that the mental pow'ers of the testator were unimpaired, and that he fully understood the nature of the act which he performed.
    In addition to the testimony of physicians, testifying not to mere opinions but to facts under their personal observation, there is the testimony of two well-known and highly respected members of the bar, who came in contact with the decedent in the course of an important litigation in which, in the year following the execution of the will, he was examined as a witness ; and there are also written evidences, in his own handwriting, of his intelligence and mental capacity, while the testimony of Mr. Allen, who for many years had the management of his financial affairs, shows the thoroughness of his knowledge of all that concerned him and his shrewdness with regard to matters of business.
    The testimony of the decedent, in the case referred to, brings him before the court in person, and, in itself, furnishes the most convincing and complete refutation of the assertion of mental unsoundness. It was taken, as already stated, a year after the execution of the will, when the testator was in his eightieth year; and it shows, among other things, the absolute groundlessness of a statement by a witness on the part of the contestant (much relied on by the “ experts ” testifying on his behalf) that he had forgotten that he ever had a brother John — the father of the contestant. In answer to the question on cross-examination, “ Can you tell me the names of your brothers and sister in their order,” he said, without hesitation, “ Yes, I recollect all my brothers and sisters. There were William and Edmund, John, Robert, and — Oh, George, yes, Robert and Howard, and one sister, Emma.”
    But little need be said with regard to the testimony on the part of the contestant. It consisted, chiefly, of the expression of opinion by gentlemen undertaking to testify as experts, who did not know the testator but based such opinions on the facts stated in the records of the asylum, the unnatural character of the will, as they regarded it, and upon the alleged forgetfulness by him of his ever having had a brother, John, etc., from all of which they inferred, with much positiveness, that he had not “ testamentary capacity.” Opinions, when opposed to established facts, are not entitled to much respect. The witnesses did not attempt to define testamentary capacity, and what was decided in Eddey’s Appeal, 109 Pa. 406, may well be applied to them: “ Where the overwhelming weight of the testimony as to facts shows testamentary capacity on the part of a testator, the testimony of insufficiently informed witnesses to the effect that in their opinion the testator did not have testamentary capacity, has but little value in determining whether an issue devisavit vel non shall or shall not be granted.”
    The issues asked for are refused, and the appeal dismissed at the costs of the appellant.

      Error assigned was decree refusing the issue.

      May 14, 1906:

      Vivian F. Grahle and John K. Andre, with them Henry F. Walton, for appellant.

      John Gr. Johnson, for appellees.
   Pee Curiam,

Decree affirmed on the opinion of Judge Penrose.


text:
    Morris, Appellant, v. Philadephia Rapid Transit Company.

      Appeals — Assignments of error — Failure to print statement — Paper-book.
    A failure to print the statement of claim in an appellant’s paper-book is a violation of the rules of court.
    Where on an appeal in an accident case it is practically admitted that the cause of action declared on was not proved, the appellate court will not consider other circumstances alleged as negligence.
    Argued March 28, 1906.
    Appeal, No. 156, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 5, Phila. Co., March T., 1904, No. 2,752, on verdict for defendant in case of Thomas Morris, by his next friend and mother Margaret T. Morris, v. The Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Davis, J.
    The statement of claim was not printed in the appellant’s paper-book.
    From a portion of the statement printed in the appellee’s paper-book, it appeared that the only negligence charged on the defendant company was a “ dangerously high rate of speed.” There was no evidence to support this except the plaintiff’s own testimony that “ the car was going pretty fast; shaking from one side to another.” In the argument in the Supreme Court the negligence alleged was that the conductor was negligent in permitting a boy under fourteen years of age to ride on the front platform of a car.
    May 14, 1906:
    Yerdiet and judgment for defendant. Plaintiff appealed.

      Error assigned was the action of the court in giving binding instructions for defendant.

      J. AT. Brinton, for appellant.

      Thomas Learning, with him Charles Biddle, for appellee.
   Per Curiam,

This appeal might well be dismissed for disregard of the rules of court. The plaintiff’s statement is not printed as the rules require, and the omission is all the more material because it is claimed by the appellee that the case is argued here on entirely different ground from that urged in the court below.

But as it is practically admitted that the cause of action declared on was not proved, we need go no further. The learned judge was right in directing a verdict for the defendant.

Judgment affirmed.