author: Mr. Justice Elkin,

text:
    Kreusler, Appellant, v. Glukoff Company.

      Mechanics’ liens — Release of liens — Notice—Inquiry—Case for jury.

    Where a purchaser of a building at a bankrupt’s sale has notice from the record that there is an apparent valid subsisting mechanic’s lien of record against the property, the burden is upon him to show diligent inquiry if he desires to be relieved from the payment of the lien because of an outstanding release, not of record, and not intended for his protection; and the question whether he has made such diligent inquiry and from the proper sources of information, is for the jury.
    Argued Oct. 26, 1908.
    Appeal, No. 177, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. Term, 1905, No. 737, for defendant non obstante veredicto in case of H. L. Kreusler v. Glukoff Company, Owner, and H. C. Burchinal, Glukoff and Company and Jacob Klein, TerreTenants.
    Before Mitchell, C. J., ’Fell, Brown, Mestrezat, Elkin and Stewart, J J.
    Reversed.
    Scire facias sur mechanic’s lien. Before Evans, J.
    At the trial the jury returned a verdict in favor of the plaintiff for $6,820.77. On a motion for judgment non obstante veredicto Evans, J., filed an opinion entering judgment for defendant non obstante veredicto. In this opinion the facts are stated as follows:
    This suit is a sci. fa. sur mechanic’s lien, filed by the plaintiff, H. L. Kreusler, and the facts as they appeared on the trial of the case were as follows:
    The plaintiff was a general contractor, and as such had a contract with the Glukoff company for the erection of a building in the city of Pittsburg. Under the agreement between the contractor and the owner, the contractor was to furnish a release of liens by himself and all subcontractors and material men, to be delivered to one J. M. Stoner, Jr., who, upon the payment of all moneys due upon the contract, was to deliver the release of liens to the owner, the Glukoff company. The erection of the building having been completed, the Glukoff company arranged to place a mortgage upon the property to raise the necessary money to pay off the claims of the contractor, and it was discovered that the amount of money the owner was able to raise was not sufficient by $5,000 to pay off the contractor’s claims. The Mercantile Trust Company of Pittsburg became surety upon a bond to the mortgagee, to indemnify the mortgagee from any loss occasioned by the filing of mechanics’ liens. The owner requested from Stoner, who held the release of liens, that the release of liens should be delivered on the payment in cash of all the contractor’s claim, except $5,000, and the delivery of a note for the balance. The jury has found, although the question was disputed, that Stoner refused this request on the part of the owner, but consented to the delivery of the release of liens to the Mercantile Trust Company, for the benefit solely of the mortgagee. Subsequently the Glukoff company went into bankruptcy, and the plaintiff, Kreusler, filed alien, upon which this suit is brought. The property was sold at bankrupt sale to Burchinal. The deed from the trustee in bankruptcy to Burchinal recited that the conveyance was made subject, among other incumbrances, to the mechanic’s lien. The release of liens as held by the Mercantile Trust Company was general upon its face; was directed to the owner, and purported to be a general and unconditional release of hens. The defendant, the terre-tenant, claims that because of the character of the release of liens, the plaintiff is estopped as to him in enforcing his lien against the property, and this is the sole question of law in dispute in this case. The situation, at the time of the purchase by Burchinal of the property at bankrupt sale, was the existence of the mechanic’s lien on record, of which, of course, Burchinal had notice; the existence of a general release of liens directed to the owner, in the hands of the Mercantile Trust Company, who was surety to the mortgagee, against any mechanics’ liens that might be filed; the knowledge on the part of Burchinal of the existence of that general release of liens. Had there been no notice to Burchinal of the existence of the mechanic’s lien, then unquestionably the existence of the release of liens, in the form in which it was in the hands of the Mercantile Trust Company, would have been a protection to him against the mechanic’s lien. But the notice of the mechanic’s lien upon record put him upon inquiry as to why, having given a general release of liens, the contractor had filed the mechanic’s lien, and such inquiry he was bound to make, unless the situation was such that had he made the inquiry he would have gotten no information which would put him upon notice that the mechanic’s lien was a valid lien in face of the release. Subsequent to the sale of the property to Burchinal, Kreusler, the plaintiff in the mechanic’s lien, presented his petition to the bankrupt court, asking to be made a general creditor of Glukoff company, alleging in his petition that his mechanic’s lien was invalid and of no effect because of an outstanding release of liens. And Kreusler testified, on the trial of this case, that he thought at that time that the release was a general release, and that it barred his right to recovery upon the mechanic’s lien. So that if the purchaser, Burchinal, had inquired of Kreusler, the only information he would have gotten was that the mechanic’s lien was invalid. The only other person, so far as the evidence shows, that he would have naturally inquired from was the holder of the release of liens, the Mercantile Trust Company; and the officer of the Mercantile Trust Company, who received the release of liens from Stoner, testified on the trial of the case that he had no recollection of any statement upon the part of Mr. Stoner, when the release was delivered to him, in any manner changing or limiting the effect of the release. So that if the purchaser at the bankrupt sale had made inquiry as to why the mechanic’s lien had been entered, after what purported to be a general release of liens had been delivered, the onty information be could have gotten was that the release had the full effect that it appeared to have, and that the mechanic’s lien was invalid because of the outstanding release.
    It is well-settled law in Pennsylvania, that where inquiry would not have revealed the fact, then inquiry is not necessary. “ The general doctrine is that whatever puts a party on inquiry amounts in judgment of law to notice,, provided the inquiry becomes a duty, as in the case of purchaser and creditors, and would lead to knowledge of the requisite fact by the exercise of ordinary diligence and understanding: ” Jaques v. "Weeks, 7 Watts, 261. It would not be disputed that had Burchinal, before purchasing at the bankrupt sale, gone to Kreusler and asked him as to the mechanic’s lien that he had filed, and he had told him that that lien was invalid because of an outstanding release, that Kreusler would have been es-topped from enforcing that lien against him. That is just what he would have told him had Burchinal made inquiry of Kreusler.
    And now, July 3, 1908, judgment is entered for the defendant non obstante veredicto.

      Error assigned was the judgment of the court.

      James IF. Kinnear, with him T. D. MeCloskey and Wm. E. Best, for appellant.
    — The plaintiff was not estopped by the character of the release of liens in enforcing his mechanic’s lien against the terre-tenants: Work v. Prall, 26 Pa. Superior Ct. 104; Hoagland v. Lusk, 33 Neb. 376 (50 N. W. Repr. 162); Megargel v. Megargel, 105 Pa. 175; Dungan v. Life Ins. Co., 52 Pa. 253.

      Chas. P. Orr, of Lasear da Orr, for appellee.
    — The release was a good defense: Brown v. Williams, 120 Pa. 24; Collins v. Busch, 191 Pa. 549; Dowd v. Crow, 205 Pa. 214.
    The terre-tenants were not bound to inquire as to the validity of plaintiff’s claim: Dungan v. Life Ins. Co., 52 Pa. 253; Jacques v. Weeks, 7 Watts, 261; Wilson v. McCullough, 23 Pa. 440.
    January 4, 1909:
   Opinion bt

Mr. Justice Elkin,

The claim filed in this case so far as is disclosed' by the record is regular in form and a valid lien. The amount claimed represents a balance due the contractor on a building contract. As we understand the contention of the parties, there is no substantial dispute as to the amount involved, nor as to the validity of the lien, unless the claimant has been estopped from asserting his right to enforce it by securing a general release from the subcontractors, laborers and material men who furnished labor or materials in the erection and construction of the building or for the additions, alterations and repairs thereto. All questions of fact raised by the pleadings were submitted to the jury by the learned trial judge in a charge which accurately stated the issues of fact to be decided and the law applicable to the same. The jury returned a verdict for appellant, which means that the disputed facts were found in his favor. Upon motion filed, the learned court below directed judgment for defendant to be entered non obstante veredicto upon the whole record. The ground upon which the court rested its judgment was that if Burchinal, before purchasing at the bankrupt sale, had gone to Kreusler and asked him about the mechanic’s lien, he would have been informed that it was invalid because of an outstanding release, or if he had gone to the Mercantile Trust Company, its trust officer, who received the release from Stoner, would have informed him that he had no recollection of any statement made at the time the release was deposited with the trust company limiting its effect or indicating that it was given for the specific purpose of protecting the trust company on its bond of indemnity and under the circumstances not to be considered a general release for the protection of the owner or subsequent purchasers. In this there was error in two respects. In the first place, it was error to assume as a fact what information Burchinal would have received had he made inquiry of Kreusler or of the Mercantile Trust Company prior to his purchase at the bankrupt sale. Under the facts and circumstances developed at the trial, it was for the jury, and not the court, to pass upon and determine this exact question. It may also be added, that Burchinal did not make inquiry of any person about the outstanding release, but purchased the property with record notice of the lien and subject to its payment, being satisfied no doubt to accept the property at the price bid and to pay in addition the liens to which the property was made subject in his deed of conveyance. Again, it was error to hold as a matter of law, that the purchaser at the bankrupt sale, would have exercised the ordinary diligence required of him by limiting his inquiry'to the two parties hereinbefore mentioned. The original building contract contained no covenant against the filing of liens, nor did the first supplemental contract. The second supplemental agreement, and the only one of the three agreements entered into between the parties in which mention is made of mechanics’ liens, contains a covenant, not against the filing of liens, which right had attached before this agreement was made, but providing that the contractor should furnish a release of liens before final payment. It should be borne in mind that this supplemental agreement was not entered into until the building was largely completed and was intended as an amicable adjustment of the disputes which had arisen between the parties. It cannot, therefore, be understood as an agreement providing against filing of liens in the first instance, but rather as a protection to the owner when the building should be completed and final settlement made against liens the right to file which had already attached. Stoner, the secretary of the Franklin Savings and Trust Company, was agreed upon as the custodian of the fund necessary to protect the owner from liens in the event of final settlement being made before the completion of the building. This covenant was evidently inserted at the instance of the owner, who was desirous of placing a mortgage upon the property to raise the money with which to pay the contractor. In the negotiations for the mortgage the owner requested the contractor to secure the release of liens and deposit it with Stoner, all of which was done. Under the terms of the agreement Stoner was to hold the release in the nature of an escrow to be delivered when a sufficient amount of money was deposited with him to pay Kreusler the entire balance due on the building contract. This condition was never fully met, and the release was not delivered to the owner or to the mortgagee. It was deposited with the Mercantile Trust Company for a special purpose, as the testimony of Stoner cleariy sets forth. Inquiry should have been made of Stoner, the party named by the contracting parties who was to be the custodian of the fund to protect against liens, and who did receive the release of liens to be handed over when the contractor was paid the amount due him under the contract, and who knew all of the facts better than any other person. Under these circumstances, it was clearly for the jury, under proper instructions by the court which were given, to determine whether inquiry had been made of the proper parties and with the diligence the law requires.

Again, it must not be overlooked that the purchaser at the bankrupt sale, and the corporation to which he subsequently conveyed the property, as well as the present holder of the title, all took deeds of conveyance made subject in express terms to the payment of certain mortgages and the mechanic’s lien which is the subject of this controversy. It is true the purchase of the property subject to the lien placed no greater burden upon the purchaser than the lien itself, and if it was not a valid lien against the owner of the building it would not be binding upon the subsequent purchaser. It did, however, give the purchaser notice upon its face that there was an apparent valid subsisting lien of record against the property purchased, and put upon him the burden of diligent inquiry if he desired to be relieved from its payment because of an outstanding release, not of record, and not intended for his protection, as the testimony shows and the jury has found. After a careful consideration of the whole record, we have concluded that the questions involved here were for the jury and that the case was properly submitted in .the first instance.

Judgment reversed and is here entered for appellant upon the verdict.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Dallett v. Taggart, Appellant.

      Will — Trusts and trustees — Separate use trust — Married woman — Act of June 4, 1879, P. L. 88.
    The will of a married woman executed during coverture will not upon her death, after having survived her husband, pass title to real estate vested in her to her sole and separate use. Such a will made under the disability of coverture, is a nullity, and there is nothing in the act of June 4, 1879, which will give it life. It was not the purpose of that act to create a disposing power in a testator just before his death, which he did not possess when he executed his will.
    Argued Oct. 26, 1908.
    Appeal, No. 132, Oct. T., 1908, by-defendants, from judgment of O. P. No. 2, Allegheny Co., April T., 1906, No. 435, on verdict for plaintiffs in case of Margaret B. Dallett and Morris Dallett, her husband, in right of his wife, v. Jane B. Taggart et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in the second ward of the city of Pitts-burg. Before Shafer, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiffs. Defendants appealed.

      Error assigned among others -was in refusing binding instructions for defendants.

      William A. Jordan, -with him George P. Murray, for appellants.
    — A separate use trust is an estate created in behalf, and for the benefit of a woman, at the time married, or in immediate contemplation-of marriage.
    Its purpose, as described by the courts of this commonwealth, is “ to protect a married woman from her ignorance, her folly, or her overweening confidence in her husband: ” People’s Savings Bank v. Denig, 131 Pa. 241.
    Being only for the protection of the wife during coverture, it becomes executed upon the death of her husband, and she then has full power and control over it: Koenig’s Appeal, 57 Pa. 352; Dodson v. Ball, 60 Pa. 492; Quin’s Estate, 144 Pa. 444; Wright v. Brown, 44 Pa. 224, 239; Broe v. Boyle, 108 Pa. 76.

      John Douglass Brown, with him Lewis <& Efewmyer, for appellees.
    — This court has decided that whether in the absence of express authority given by the instrument creating the trust a married woman can pass property settled to her separate use by will is no longer doubtful. In an opinion delivered by the present chief justice, it was held that it is no longer a question that she has no such power and that notwithstanding the acts of 1848 and 1887, the court would not depart from the rule established in Thomas v. Folwell, 2 Whart. 11, and thereafter uniformly followed: Steinmetz’s Estate, 168 Pa. 175.
    This court has also decided that this rule is unaffected by the act of June 4,1879, providing that wills shall be construed with reference to the property comprised therein “ to speak and take effect as if executed immediately before the testator’s death,” and that since that act as before the power or capacity of the testator and the legality of his disposition of his estate, must be determined as of the date of the will: Neale’s Estate, 104 Pa. 214; Quin’s Estate, 144 Pa. 444; Packer v. Packer, 179 Pa. 580.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

This was an action of ejectment. The plaintiffs stand in relation to the title as the successors of William B. Kilgore, one of the six children of Mrs. Mary E. Kilgore, deceased. The facts are these: William Barker, by deed dated December 28, 1863, conveyed to Mrs. Kilgore, his married niece, for a nominal consideration, a lot of ground fronting on Smithfield street in the city of Pittsburg, for her sole and separate use, her heirs and assigns, subject to the use and occupancy of the premises by the grantor’s wife, Fanny, during her natural life. By deed dated March 22, 1867, Mrs. Kilgore, her husband, Jesse Y. Kilgore, joining in the deed, reconveyed to William Barker the property described in deed of March 28, 1863. William Barker died May 30, 1869. By his will bearing date December 31, 1868, he devised as follows: “ I give and devise to my niece, Mary E. Kilgore, the dwelling house on Smithfield street, in which I now reside, together with the household furniture, to have and to hold during the period of her natural life, and after the death of my said niece Mary D. Kilgore, I give and devise the said dwelling house to the children of the said Mary E. Kilgore, their heirs and assigns forever.” The property here devised is the same as that described in the conveyance and reconveyance above referred to. Mrs. Kilgore survived her husband some seven months, and died July 11, 1905. By her last will dated October 3, 1901, and codicil dated April 14, 1902, she directed the sale of her real estate, giving one-third of her estate to her husband, $1,000 to her son, William B. Kilgore, and dividing the residue between her five remaining children. The plaintiffs in the action, representing William B. Kilgore, claimed to recover one undivided one-sixth interest in the real estate which was the subject of the devise under the will of William Barker to Mrs. Kilgore for life, with remainder to her children. Their right was rested on several grounds: first, that the conveyance from William Barker to Mrs. Kilgore did not in law create a sole and separate use in her; second, that if it did, the reconveyance by Mrs. Kilgore and her husband to the settlor extinguished it, and reinvested William Barker with full ownership ; third, adverse possession for more than twenty-one years; and, fourth, positive acts of estoppel on the part of Mrs. Kilgore and her other children. A verdict was directed for the plaintiffs. Subsequently a motion for judgment non obstante veredicto upon the whole record was refused: and this appeal results. In the opinion filed by the learned trial judge, the several positions advanced on behalf of the plaintiffs were carefully considered. He held that the documentary evidence showed the equivalent of an express election by Mrs. Kilgore to take under the will of William Barker ; and that by reason of a certain agreement in which she and some of her children joined, with respect to a party wall, operated as an estoppel as to those signing ; this affecting, however, only two-fifths of the title claimed by the plaintiffs. We do not deem it of importance to refer any more particularly to these considerations, since the case may be readily resolved without regard to them, by the application of a rule which the learned judge fully recognized and applied, and on which, as we read the opinion, he largely rested his conclusions. The court held with entire correctness that the deed from Barker to Mrs. Kilgore created in her a sole and separate use trust, without power of alienation by deed or devise. If the deed of Mrs. Kilgore and her husband operated to reinvest Barker with the title, then by his will, Mrs. Kilgore took an estate for life, with remainder to her children, including of course, her son William B. Kilgore, which Mrs. Kilgore by no act of hers could defeat. If the deed of reconveyance did not so operate, and the separate use trust remained unaffected by it, then upon the death of Mrs. Kilgore, the property embraced in it would pass to her children, including ‘William B. Kilgore, unless intercepted by her last will. So then if we concede appellants’ contention that the attempted reconveyance from Mrs. Kilgore and her husband was nugatory, ineffectual to destroy the separate use trust — a matter upon which it is not necessary to express ourselves — the case must turn on the sufficiency of Mrs. Kilgore’s will; and thus we have the only question in the case that calls for a decision. Mrs. Kilgore’s will was made October 3,1901, during the life of her husband. Had Mrs. Kilgore died before her husband, it could not be pretended that her will could have taken effect. Certainly during his life she would have no power to alienate what was to her separate use : Steinmetz’s Estate, 168 Pa. 175. It is argued, however,-that though Mrs. Kilgore’s will, under which defendants claim, was made while she was under the disability of coverture, yet by virtue of the act of June 4, 1879, it takes effect as if executed immediately before her death, with respect to the real and personal estate embraced therein, and that no disability then existed, her husband being then deceased. The effect here sought to be given the act of June 4, 1879, goes away beyond its purpose. As the learned trial judge shows very clearly, the purpose of the act was not to create a power where none existed before, but simply to make certain that which was left in doubt to greater or less extent by sec. 10 of the Act of April 8,1833, P. L. 249. In this connection we can do no better than quote from the opinion filed in the case. It is contended, however, that the Act of June 4, 1879, P. L. 88, has changed the law in this respect. The act provides that every will shall be ‘ construed,’ with reference to the real estate and personal estate comprised in it, to speak and to take effect as if executed immediately before the death of the testator. The mischief to be remedied by that act was one which had been partially remedied by sec. 10 of the act of April 8, 1833. Before the passage of the last-mentioned act a testator could not dispose by his will of after-acquired lands, no matter in what form he undertook to do so. General words, however, in regard to his personal estate, were always construed to apply to such personal estate as he had at the time of his death. By the act of 1833 it was provided that his after-acquired real estate should pass by a general devise. There still remains certain sometimes misleading difference between the rules of construction as applicable to real and personal estate, and the act of 1879 was accordingly passed to take away the difference in this respect, between the real and personal estate, this intent being further carried out by sec. 2 of the act which provides that lapsed and void devises shall fall into the residue as legacies due in like circumstances. The act does not direct, as contended by defendants, that a will is to speak generally as of the death of the testator.” In what is here said we fully concur.

The question raised we regard as definitely settled by the case of Neale’s Appeal, 104 Pa. 214. The effort there was to create by will a separate use trust in a granddaughter unmarried, and not at the time having marriage in immediate contemplation. It was contended that under the act of June 4, 1879, the will took effect because conditions which would have warranted the creation of a separate use trust, though not existing at the execution of the will, did exist at the date of the death of the testator, the granddaughter being then married. This court through Mebcub, C. J., held that it w'as a question of testamentary power, and not of construction; that at the time the will was executed there was no power in the testator to create the trust; and that it was not the purpose of the act of June 4, 1879, to create a disposing power in a testator just before his death, which he did not possess when he executed his will. So here, it is a question of power. Mrs. Kilgore when she executed her will had no power under the separate use to alien this property; and the act referred to gave her nothing in the way of power. As well might it be said, that a will made during infancy, becomes effective upon attainment of majority without more, as to claim that the will in question became operative by reason of a subsequent removal of disability. Having been made under a positive disability, it was as though it never had been made; it had no life in it, and life could only be imparted to it by an execution when no disability existed. To speak of it as requiring re-execution or republication is to imply a prior execution or publication, and that cannot be affirmed, at least within the meaning of the law, of an instrument which the party had no power to make, no matter how declared or how attested. The instrument here relied upon by the defendants as the will of Mrs. Kilgore was wholly ineffectual to pass title to the real estate here in dispute, for the reasons above given.

The assignments of error are overruled.

Judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Bisko v. Braznell Gas Coal Company, Appellant.

      Negligence — Mines and mining — Coal mines — Explosion of gas — Act of May 15, 1893, P. L. 52.
    1. Under the Act of May 15, 1893, P. L. 52, unless it is made to appear that the mine foreman of a bituminous coal mine has made a requisition for materials of the owner or superintendent, and it has been refused, or it is made to appear that the owner or superintendent has failed “to keep on hand at the mines” the necessary materials or supplies, there can be no basis for a charge of negligence in failing to furnish supplies which will support an action against the owner of the mine.
    2. No recovery can be had against an owner of a coal mine for personal injuries caused by an explosion of gas, on the ground that the company had neglected to furnish proper materials, where it does not appear that such neglect was the cause of the injuries.
    3. Where a coal miner in a mine otherwise safe knows that there is an accumulation of gas in a particular entry, and goes under the order of the foreman to make the entry safe by repairing a brattice, he assumes the risk incident to the service, and if he is injured by an explosion of gas in the entry he cannot recover from the mine owner.
    4. Where a workman undertakes an extra hazardous employment which is obvious to him, he assumes the risk and danger.
    5. Where a coal mine is free from gas in dangerous quantities to such an extent that open lamps are safely used, but in a particular pocket there is an accumulation of gas, a workman, who is sent to repair a brattice and approaches the pocket with an open light in his hand, cannot recover from the mine owner damages for personal injuries resulting from an explosion of the gas caused by the open lamp.
    Argued Oct 26, 1908.
    Appeal, No. 110, Oct. T., 1908, by defendant, from judgment of O. P. No. 4, Allegheny Co., Third T., 1908, No. 108, on verdict for plaintiff in case of Adam Bisko v. Braznell Gas Coal Company.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      Trespass to recover damages for personal injuries. Before Carnahan, J.
    The opinion of the Supreme Court states the facts of the case.
    Yerdict and judgment for plaintiff for $4,250. Defendant appealed.

      Error assigned among others was (1) in refusing binding instructions for defendant.

      J. 8. Ferguson, with him Francis 8. Bennett, for appellant,
    cited: McHugh v. Jones & Laughlin Steel Co., 219 Pa. 644; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Hall v. Simpson, 203 Pa. 146; Redstone Coke Co. v. Roby, 115 Pa. 364; Reese v. Biddle, 112 Pa. 72; Waddell v. Simoson, 112 Pa. 567.

      Joseph Stadtfeld, for appellee,
    cited: Webster v. Monongahela River Consolidated Coal & Coke Co., 201 Pa. 278; Poster v. Steel Co., 216 Pa. 279; Gilbert v. Elk Tanning Co.,.221 Pa. 176; Saylor v. Chartiers Coal & Coke Co., 31 Pa. Superior Ct. 447.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

This is an action of trespass to recover damages for injuries which the plaintiff, an employee, alleges he sustained by reason of the negligence of his employer, the defendant company.

The defendant is the owner of certain coal property at Bentley sville, Washington county, and in the fall and winter of 1905, for the purpose of operating the coal, put down two shafts, 185 feet apart, and connected them at the bottom by a main or base entry. Prom this entry, four butt entries were driven into the coal parallel to each other and for a distance of about 200 feet. There was a cut through between entries Nos. 1 and 2, and another cut through between entries Nos. 2 and 3.

On the surface near one of the shafts there were three boilers which furnished steam for the hoisting apparatus, pumping water, running an air compressor, and for a jet at the bottom of the shaft which aided in ventilating the mine. The air compressor operated the punching machines used in mining the coal. There were no fans used in ventilating the mine. The air in the mine was kept in motion by the steam jet and was directed through the mine in the ordinary way by brattice work.

At the time of the accident the defendant company had in its employ a superintendent, a mine foreman, and an assistant foreman who also acted as fire boss. The foreman and his assistant had been duly certified, and their competency and that of the superintendent was not questioned.

The plaintiff, a miner of some years’ experience, was employed by the defendant company and began to work in this mine on February 5, 1906. He continued his employment there until the night of March 19, 1906, when he was injured by a gas explosion in butt entry No. 2. On that evening he entered the mine and began work about seven o’clock in butt entry No. 3. He used a punching machine in mining which was operated by compressed air. After working two or three hours, he was compelled to quit by reason of the insufficiency of the air in the compressor to operate the machine. He and three other workmen were then directed by the assistant foreman to repair certain brattice work in butt entry No. 2. It appears that there had been a break in the roof of butt entry No. 2, and that it was necessary to brattice off the place so as to protect the mine from any gas in the pocket or hole which had been made in the roof. The plaintiff testified that the brattice work “ is constructed so as to direct the air, or ventilation, to go past this place where the gas may accumulate, and drive out that gas with the ventilation.”. Just as the plaintiff was commencing to repair the brattice work, the gas in the hole or pocket in the roof was ignited by the open lamp which the plaintiff had in his hand and an explosion followed resulting in severe injuries to the plaintiff.

The statement avers that the defendant “ was negligent in not providing proper and sufficient means to carry away the accumulation of gas and to provide proper ventilation and means of ventilation in said mine, and through its negligence and carelessness in that behalf, an explosion occurred on March 19, 1906, and as a result thereof, plaintiff was thereby ■permanently injured.” On the trial of the cause the plaintiff contended that the defendant was negligent (1) in the failure to supply materials necessary for ventilating the mine; (2) in not maintaining a safe working place for the plaintiff; (3) by reason of inadequate means of ventilation. The learned judge submitted the case to the jury and a verdict was rendered for the plaintiff. Judgment was entered on the verdict and the defendant company has taken this appeal.

1. The Act of May 15, 1893, P. L. 52, 3 Purd. (13th ed.) 2591, by art. 1 provides as follows: “ It shall be the duty of the superintendent, on behalf and at the expense of the operator, to keep on hand at the mines at all times, a full supply of all materials and supplies required to preserve the health and safety of the employees as ordered by the mine foreman and required by this act.”

It is claimed by the plaintiff, and he testified, that two weeks before the accident he had notified the superintendent that the roof in butt entry No. 2 should be supported by a post, and the place where the fall had occurred should be bratticed off; that he also heard the foreman' tell the superintendent that the roof was in a bad condition and that it ought to be fixed; that the men were afraid to go into the place; and that the superintendent promised to have it attended to. The plaintiff further testified that he could find no timber or other material in the mine with which to repair the brattice work. He admitted that he didn’t know whether there was any material for that purpose on the outside of the mine. On the other hand, the uncontradicted testimony of the defendant company showed that there was sufficient material of all kinds on the ground near the mouth of the mine for any purpose for which it would be needed in the mine. It was contended by the plaintiff that there should have been a supply room in the mine where materials were kept for use in the construction of brattices and other work, and the superintendent testified that it was customary to have a supply room in a developed, but not an undeveloped, mine, such as defendant’s mine.

Article 6 of the act of May 15,1893, imposes upon the mine foreman, who is required to be a “ competent and practical inside overseer,” the duty of keeping a careful watch over the ventilating apparatus, timbers and drainage; seeing that as excavations advance slate and rock overhead are taken down or carefully secured against falling, and that “ sufficient props, caps and timbers of suitable size are sent into the mine when required ”; and further that “ such props, caps and timbers shall be delivered in the working places of the mine.” The article also provides: “ Every workman in want of props or timbers and cap pieces shall notify the mine foreman or his assistant of the fact at least one day in advance, giving the length and number of props or timbers and cap pieces required, but in cases of emergency the timbers may be ordered immediately upon the discovery of any danger.” The rules of the mine are required to designate the place and manner of leaving orders for the timber.

It will be observed that while' the act of assembly requires the owner or superintendent to furnish the necessary materials or supplies for use in the mine, they are only to be sent into the mine “ as ordered by the mine foreman.” The mine foreman acts at the instance of the workman who, if he needs any material, is to notify the foreman or his assistant. Unless, therefore, it is made to appear that the mine foreman has made a requisition for materials on the owner or superintendent and it has been refused, or it is made to appear that the owner or superintendent has failed “ to keep on hand at the mines ” the necessary materials or supplies, there can be no basis for a charge of negligence in failing to furnish supplies under the act of assembly which will support an action against the owner of the mines. In the case at bar, the most that can be said of the plaintiff’s testimony is that it shows that the witness told the superintendent of the necessity for supports for the roof and brattice in butt entry No. 2, and that the superintendent promised to have the necessary work done to put the mine in proper shape at that place. The plaintiff also testified that he heard the mine foreman tell the superintendent that the roof was bad and ought to be fixed, but there is not a particle of evidence tending to show that the foreman made any demand at any time upon the superintendent for any material with which to do the work, or for material for any of the workmen to con- ’ struct or repair a brattice at that point.

But if we assume that there was not an adequate supply of material on the surface or in the mine for the purpose of repairing the brattice, it cannot affect this case or impose liability upon the defendant company, for the reason that it was not the cause of the plaintiff’s injuries. He was employed as a miner and was engaged in mining coal in butt entry No. 3, and not in butt entry No. 2 where the roof fell and the explosion occurred. Had he been engaged in mining coal in butt entry No. 3 and the explosion in butt éntry No. 2 had injured him, there might be some ground for the contention that the defendant company was liable for not furnishing an adequate supply of materials for constructing or repairing the brattice. But at the time plaintiff was injured he was engaged in repairing the brattice which was to be used in diluting or carrying off any gas which had accumulated in the pocket or hole made by the fall in the roof of No. 2 entry. The lack of supplies or material or tools necessary in the repair of the brattice did not cause the plaintiff’s injuries ; they resulted from the gas in the pocket or hole in the roof being ignited by the blaze from the plaintiff’s open lamp. If the mine had been full of material, it would not have prevented the accident. There was therefore a failure to connect any alleged negligence on the part of the company in furnishing proper materials with the injury caused to the plaintiff, and hence though there was neglect to furnish the materials, it will not support an action against the defendant.

2. It is also contended that the defendant was negligent in not furnishing the plaintiff a safe place in which to work. The place assigned him to repair the brattice was near the hole in the roof of butt entry No. 2. It is not alleged, at least the evidence does not show, that any other part of the mine was unsafe or dangerous at that time. While it does appear that during the sinking of one of the shafts an explosion occurred resulting in loss of life, and further that gas had frequently been detected in the mine, yet there was no evidence in the case that would warrant the jury in finding that at the time of the accident any other part of the mine was dangerous by reason of the accumulation of gas. As said by the learned judge in his charge : “ The plaintiff himself said as to the ventilation of the mine he had no reason to complain that night. He expressly stated that the air was all right in the mine that night. He said there was a lack of air for the air-compressor, not enough to operate the air-compressor, but so far as breathing purposes were concerned, the air was all right in his entry, and so far as we know the air was sufficient for breathing purposes in every part of the mine except this particular point where the accident happened.” From the evidence it is clear that at the time of the accident the mine was properly ventilated, and in no other part of the mine was gas present in sufficient quantities to render it dangerous to persons employed in the mine. The mine foreman, as required by the act of 1893, officially reported on the day of the accident : “ The mine is safe and healthy.” If, therefore, the place at which the plaintiff was at work was dangerous, it was made so by gas accumulating in the hole of the roof which the air currents through the mine would not dilute or carry off. It was for the very purpose of controlling the air currents in the mine so that they would carry off any accumulation of gas in this hole that the brattice work was being repaired by the plaintiff. Without the assistance of the brattice, the gas in the hole could not be reached by the air currents, and it would remain there undiluted and render the entry unsafe for mining. The place at which the plaintiff was directed to work, therefore, was not regarded as safe, and he was sent there to construct the brattice in order to make it safe. Provision is made for this very contingency by sec. 6 of art. 6 of the act of 1893, which provides that, no person shall be directed or permitted to work in an unsafe place unless it be for the purpose of making it safe.” The place was not unsafe by reason of anything the defendant company did or failed to do. If the brattice had been in good repair, so as to perform the service required of it, there would have been no occasion for the plaintiff to have been at work there; the place would have been safe. When, however, it became necessary by reason of the fall to procure good ventilation in that entry and thereby remove the noxious gases accumulated in the pocket or hole in the roof, the plaintiff and his assistants were sent to perform this work. It was a dangerous place, but the plaintiff and his fellow laborers who were with him knew the danger that might be encountered. It is true the plaintiff says he knew of no gas in the mine, but being a miner of some experience he manifestly knew of the fall in the roof and knew why the brattice was needed at that place. This conclusively appears from his own testimony, in which he says he notified the superintendent and heard the mine foreman tell him of the fall and the necessity for constructing or repairing a brattice at the place of the fall. The plaintiff’s work was mining in butt entry No. 3, but he knew the necessity of having butt entry No. 2 clear of noxious gases and hence the notice he gave the authorities to brattice the place so that the gas might be removed by the air currents in the mine. "Without this brattice he, as an experienced miner, knew the currents of air would not penetrate that part of the mine, notwithstanding the complete ventilation of every other part of the mine. We must, therefore, conclude that the plaintiff knew the hazardous character of the place in which he was to work in repairing the brattice, and, therefore, he assumed the risk incident to the service. His employment was extra hazardous by reason of the place in which the work had to be done, and this being obvious, as well to the plaintiff as to others, he assumed the danger: 20 Am. & Eng. Ency. of Law (2d ed.), 119. In Derr v. Lehigh Valley Railroad Company, 158 Pa. 365, the plaintiff’s husband, a locomotive engineer, was killed by the derailment of his engine running into a snowdrift in a deep cut. The deceased had charge of an engine which had been sent out to remove snowdrifts from cuts. The manner in which the train was made up, equipped and manned, showed the purpose for which it was intended. It was held that the risks involved in the work of opening the road were intelligently assumed by the deceased, and there could be no recovery for his death. In Finlayson v. Utica Mining & Milling Company, 67 Fed. Repr. 507, a workman in a mine who was engaged in timbering an entry was killed by the fall of material which had resisted the efforts of the foreman and other workmen to dislodge it with picks but which was loosened by drilling by those employees. A judgment for the defendant was affirmed by the United States circuit court of appeals; and in the opinion it is said that the rule that an employer must provide a reasonably safe place for his employee to work “ cannot be justly applied to cases in which the very work the servants are employed to do consists in making a dangerous place safe. . . . The servant assumes the ordinary risks and dangers of his employment that are known to him by the exercise of ordinary care and foresight. When he engages in the work of making a place that is known to be dangerous, safe, or in a work that in its progress necessarily changes the character for safety of a place in which it is performed as the work progresses, the hazard of the dangerous place and the increased hazard of the place made dangerous by the work are the ordinary and known dangers of such a place, and by his acceptance of the employment the servant necessarily assumes them : Armour v. Hahn, 111 U. S. 313.” In the case at bar, it does not appear that the defendant imposed any danger or risk on the plaintiff in sending him to repair the brattice that was not ordinarily incident to the work. It was not the insufficient or inadequate ventilation generally of the mine that made the place of the plaintiff’s employment dangerous or hazardous, but the fact, of which the plaintiff was fully cognizant, that gas might have accumulated in the hole or pocket of the roof near which he was to work and which the air currents without the aid of the brattice would not reach. The explosion was caused by the plaintiff putting his open light up to the hole and igniting the gas which had accumulated there. The place was reasonably safe except for the presence of gas in the hole and that risk the plaintiff, and not the defendant, must assume.

3. It is further contended that the defendant was negligent in not maintaining adequate means of ventilation for the mine. As we have seen, it appears that gas in dangerous quantities had been found in sinking one of the shafts, and some of the witnesses testified that the mine generated some gas, but this does not establish the proposition that the means of ventilation were inadequate to “ dilute, carry off and render harmless the noxious or dangerous gases generated in the mine,” as required by the act of assembly. It is no doubt a fact, as in other bituminous mines in western Pennsylvania, there was gas in this mine on the night of the accident; but it is equally true, if the evidence is believed, that the ventilation was sufficient to render it harmless. While there was some testimony showing that the boilers leaked, yet there was no testimony that showed those leaks to have interfered with the complete ventilation of the mine. The circulation of the air through the mine was aided by a jet of steam and that, from the evidence, appears to be a proper way to ventilate a mine. There is no evidence to show that the boilers or the engine or any other apparatus used for the purpose was insufficient or inadequate to provide or maintain ample means of ventilation for the mine. The testimony of the officials disclosed their knowledge of the presence of gas in the mine, and showed that ample, means had been provided for thorough ventilation. In fact, as we have seen, the plaintiff himself testified that he had no reason to complain of the ventilation of the other parts of the mine on the night of the accident; and there is no evidence in the case that would warrant a jury in finding that the means of ventilation were either inadequate or insufficient.

If, however, the contention of the plaintiff is well taken that the mine was not properly ventilated, the full and complete answer to his right to recover on that ground is that it did not cause his injuries. The negligence of a defendant will not impose responsibility unless it is the cause of the injury. From the undisputed facts in the case, open lamps and not safety lamps were used in that mine and on the occasion of the accident they were being used in the mine but no explosion occurred. The plaintiff himself, as we have seen, was using an open lamp that evening, but it caused no explosion until he raised his hand to the hole.” There was no trouble with gas in any other part of the mine on the night of the accident and there is no evidence to show that there was any gas in dangerous quantities in the mine on that night except what appeared in the pocket or hole at the fall in butt entry No. 2. Had the plaintiff observed the direction of the foreman to keep his light in the rear, the brattice would have been repaired without any injury to him. The insufficient or inadequate means of ventilation, if such there were, in the mine on that night did not cause the plaintiff’s injuries and therefore will not impose liability upon the defendant for them.

We have examined this case with care, with the result that we find no evidence that convicts the defendant company of negligence which caused the plaintiff’s injuries. The defendant, therefore, is not liable in this action and the learned trial court should have so instructed the jury.

The first assignment of error is sustained, the judgment is reversed and judgment is now en tered for the defendant.


author: Mr. Justice Potter,

text:
    Hodder v. George Hogg Company, Appellant.

      Corporations — Stockholders—Inspection of books — Mandamus.
    1. A stockholder of a corporation has the right to inspect the books of the company at a proper time and in a proper way, even though his only object be to ascertain whether the business has been properly conducted; and the fact that he is interested in a competing company is not a good and sufficient reason for refusing him.
    2. A petition for mandamus to secure an inspection of the books of a corporation will be granted where the petitioner avers that during his former official connection with the company, he had knowledge of instances where funds had been improperly applied; that while large profits had been made the statements of the company did not show it; that the salaries of the officers had been irregularly and improperly increased; that the company had earned large sums of money in which dividends should have been declared; that as a stockholder he desired to inspect the books in order to be advised as to the management; and that he might be enabled to file a bill in equity if the result of his examination would justify him in so doing.
    Argued Oct. 27, 1908.
    Appeal, No. 181, Oct. T., 1908, by defendant, from order of O. P. No. 2, Allegheny Co., April T., 1908, No. 817, granting petition for mandamus in case of William Titus Hodder v. George Hogg Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for mandamus. Before Frazer, P. J.

    The opinion of the Supreme Court states the facts.

      Error assigned was order granting mandamus.

      W. E. Rodgers, with him Joseph F. Mayhugh, for appellant.
    — A stockholder in a private corporation before he obtains a mandamus to enable him to inspect the books and papers of the corporation must show that he desires such inspection for some just and useful object. It will not be granted to gratify curiosity or for speculative purposes or if not asked for in good faith, and there must be a particular matter in dispute involving and seriously affecting the rights of the relator as a stockholder: Phoenix Iron Company v. Commonwealth, 113 Pa. 563; Kuhbach v. Irving Cut Glass Co., 220 Pa. 427.

      Robert M. Ewing, with him Edwin H. Stowe, for appellee.
    — A stockholder has the right to inspect the company’s books: Weimer on Corporations, 119; Commonwealth v. Phoenix Iron Co., 105 Pa. 111; Phoenix Iron Co. v. Commonwealth, 113 Pa. 563; Neubert v. Armstrong Water Co., 211 Pa. 582.
    January 4, 1909:
   Opinion by

Mr. Justice Potter,

William Titus Hodder is the owner of forty shares of the capital stock of the'George Hogg Company. Alleging mismanagement of the corporation and improper use of its funds, and the denial by the officers of the company of his right to examine the books, he filed a petition for a writ of alternative mandamus against the company and its officers, to compel the defendant to give the petitioner, or his representative, access to the books of the corporation. Respondents filed an answer, and made return to the petition, and upon demurrer thereto the court below awarded a writ of mandamus. The defendant company has appealed. It does not deny that mandamus is the appropriate remedy to enforce the rights of a stockholder to inspect the books and records of a corporation. It questions only the sufficiency of the data furnished in this case, to support the application.

Turning to the petition we find that it is there averred that during the petitioner’s former official connection with the defendant company, he had knowledge of instances where funds were improperly applied by the officers of the company, and in view of this knowledge he had frequently, after the close of the year 1906, made requests for a statement of the condition of the business, but none was furnished him until January, 1908, when statements were given to him that were vague, indefinite and misleading. Petitioner also avers that while large profits were made, the statements did not show it; that the salaries of the officers were irregularly and improperly increased; that he believes the company has earned large sums of money from which dividends should have been declared; that as a stockholder he desired to inspect the books of the company in order to be advised as to the management of the business, and the truth, or falsity of the matters above referred to; and that he might be enabled to file a bill in equity to restrain the officers from mismanagement, in case the result of his examination should justify him in so doing. That for these purposes he had both personally and through his counsel, requested the officers of the company to permit him to examine the books of the company, and his request had been denied. In the answer filed by respondent the charges of mismanagement were denied, and it was averred that petitioner was not acting in good faith, and that he was interested in a rival concern, and that his purpose was to force a purchase of his stock at an unreasonable price. The answer further averred that petitioner already had knowledge of part of the facts which he sought to ascertain, and that certain books of account of the company had been offered to his counsel for examination. It was admitted that the company had refused to allow the books to be examined by an auditor selected by petitioner, and had also refused to permit an examination as asked for, to ascertain what sums of money had been paid to the corporation since its organization, and how they had been expended. From these charges and countercharges it is very apparent that a substantial dispute exists, as to the management of the company. Relator as a stockholder has without question the right to inspect the books of the company, at a proper time, and in a proper way, even though his only object be to ascertain whether the business has been properly conducted. Such a right is necessary for the protection of stockholders. The relator seeks at the present time merely, for information. It may be that as a result of his examination of the books and of the records his suspicions will be shown to be groundless. As the trial judge said, this case does not differ substantially from many others which have been before the courts, and in which the writ of mandamus has been granted. The allegations of the petition are well within the limits laid down as requisite by the authorities. In fact they are directly within the ruling of this court, in the late case of Kuhbach v. Irving Cut Glass Co., 220 Pa. 427; it is there pointed out that the stockholder has the right to investigate the condition of the company for himself, provided he exercises the right in good faith and in a proper and reasonable way. It is also there held, that the averment of an intention to file a bill in equity to restrain the officers from mismanagement, and the need of information to that end is sufficient ground for granting the mandamus; and also that the fact that the petitioner is interested in a competing company is not a good and sufficient reason for refusing it.

In the present case the order of the court below shows discriminating care in its terms. It is held that plaintiff is entitled to a reasonable personal inspection of the books, and to the aid of a disinterested expert in making such extracts as are reasonably required in the preparation of the bill in equity he proposes to file. At the same time he is prohibited from doing that which would amount to burdensome interference with the business of the company. We see no reason for any just criticism of the conclusion reached, or the order made by the court below.

The judgment is therefore affirmed.


text:
    Maisch, Appellant, v. Order of Americus.

      Practice, C. P. — Parties — Unincorporated beneficial association— Amendment.

    1. An unincorporated beneficial association, may not be sued in assumpsit in its collective capacity or name, for an obligation of the organization.
    2. Where such an association is sued as a corporation, the record cannot be amended by adding the words, “an unincorporated fraternal beneficial society duly organized under the laws of the Commonwealth of Pennslyvania, and composed of A. B. and others.”
    3. The proper method of suing such an association is to institute a suit in equity against some of the members as representing themselves and all others having the same interest, and after judgment, to compel the defendants to see that the treasury of the association pays the claim.
    Argued Oct. 27, 1908.
    Appeal, No. 21, Oct. T., 1908, by plaintiff, from judgment of Superior Court, April T., 1907, No. 192, affirming judgment of C. P. No. 1, Allegheny Co., Sept. T., 1903,-No. 944, on verdict for defendant in case of Catherine F. Maisch v. Order of Americus, an unincorporated fraternal beneficial society duly organized under the laws of the Commonwealth of Pennsylvania and composed of Lee W. Squier, Edwin E. Robbins and others.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court. See 34 Pa. Superior Ct. 436.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      Jas. T. Buchanan and George L. Me Oleary, for appellant.

      J. A. Langfitt, with him Karl E. Wilson and H. W. McIntosh, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Potter,

The plaintiff in this case entered suit against the Order of Americus as a corporation. Learning subsequently that there was no such corporation in existence, she obtained leave to amend the statement so as to describe the defendant as “ an unincorporated fraternal beneficial society duly organized under the laws of the Commonwealth of Pennsylvania, and composed of Lee W. Squier, Edwin E. Robbins and others.” No process was issued, however, to bring in the persons named as parties to the suit. The amendment was improperly allowed. There was no such legal entity as “ Order of Americus,” and therefore no party defendant, no case before the court, and nothing to amend. But even if full effect were given to the effort to- amend, nothing would be really accomplished, for it would only substitute for the name of the supposed corporation, that of an unincorpoated association, in its collective capacity and name; and such an association is not recognized as having a legal existence apart from its members, and it could not therefore be made a party defendant. There is no such entity known to the law as an unincorporated association. The legislature may, undoubtedly, impose upon unincorporated associations a liability to be sued in a collective name, but that has not been done in Pennsylvania. Prior to the Act of April 28, 1876, P. L. 53, the members of an unincorporated beneficial association were liable individually for the payment of the obligations of the organization. But since then, they have been individually exempt from all such liability, and payment can be enforced only against the treasury of such an organization.

A plain remedy remains, however, in the courts of equity, in which suit may be brought against some of the members of an unincorporated association, as representing themselves, and all others having the same interest. In this way, as pointed out in Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393, though the treasury alone shall respond for a debt found to be due, those in control of the treasury may be compelled to see that the treasury meets its liabilities by payment.”

We agree with counsel for the appellee in their contention that the defendant was not properly brought into court, and that as the statutory law of Pennsylvania now stands, an unincorporated beneficial association may not be sued in assumpsit in its collective capacity or name, for an obligation of the organization.

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


author: Per Curiam,

text:
    Killen’s Estate.

      Lunacy — Insanity—Hallucinations—Faith cure — Judgment notes.

    Where an aged woman who had attempted suicide, and who had fallen into a condition of nervous prostration, associates herself with a sect of faith curists, and while under their influence and subject to hallucinations as to herself and her children, executes to a representative of the sect promissory notes for large sums of money, and subsequently dies, such notes cannot be enforced as a valid claim against ' her estate.
    Argued Oct. 27, 1908.
    Appeal, No. 42, Oct. T., 1908, by the Gospel Trumpet Publishing Company,- from decree of O. C. Allegheny Co., Jan. T., 1907, No. 100, dismissing exceptions to adjudication in Estate of Sarah E. Killen.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    Miller, J., filed the following opinion:
    The question is, whether Sarah E. Killen, now deceased, was insane or unduly influenced when, without valuable consideration, she executed and delivered to the Gospel Trumpet Publishing Company two judgment notes, aggregating $4,300, for which claim is made, with interest thereon from .January 5, 1903.
    THE FACTS.
    The decedent, prior to 1898, was a widow having three daughters, one of whom had died leaving a young son, who with his father lived in Mrs. Killen’s family; the other two daughters were then minors, and the youngest is now seventeen years of age.
    During this period her health became impaired; her trouble is described as nervous prostration. She became depressed, and in this condition attempted to end her life by taking poison. By medical treatment her life was saved, and on December 24, 1898, she was sent to St. Francis Hospital, in this city, where she remained until August 2, 1899. Connected with this institution is a department that makes a specialty of treatment of persons who suffer from mental disorders.
    Following her return to her home, her nervous condition did not improve; twice she wandered from the house in her underclothes, and was found at midnight at or near a high embankment of a stone quarry. She also refused to take food in sufficient quantities for nourishment, and with a knife cut several gashes into her leg.
    Her condition not improving she was, on August 18, 1899, taken to the Mercy Hospital, in this city, for treatment. On October 6, 1899, she was brought home.
    In the meanwhile she began to take great interest in a religious organization, one of whose chief tenets is the curing of diseases by faith, prayer and other religious rites; after her return from the Mercy Hospital, into the summer or fall of 1902, her interest and devotion to this form of religious teaching engrossed almost her entire attention.
    In the borough of Wilkinsburg, near her home which was in Braddock, there was an organization of the followers of this faith, who held their religious services in their respective private houses; she became very intimate with these adherents; she procured and read many of the books and pamphlets, which the organization under the name of the Gospel Trumpet Publishing Company had for distribution and sale; she became an agent for the distribution of some of these publications, and posted bible texts as found in these writings, not only in, but on the outside of her dwelling house.
    When at home she spent much of her time in bed, but refused to send for a physician, asserting that medicines were of the devil. So fixed was her opposition to medical help that she destroyed the medicines prescribed for her sick grandchild while suffering from a serious illness. Her belief was that prayers and faith alone would cure physical ills. Frequently she sent her young daughter, then but a child of twelve, and others, at midnight to the homes of the adherents or leaders of her newly adopted faith, with requests that they should visit her, which they did, prayed with and for her and anointed her head with oil. She asserted to her neighbor that the hard water with which clothes were being washed could be changed to soft water by her prayers.
    She had no distinct physical ailment, and did not seem to suffer from any special pain or disease. She believed that she suffered from a cancer which her physician in 1898 declared was wholly imaginary. During this period she also showed other evidences of mental delusions; she stated to her brother that she imagined she had killed or was killing her children. She abandoned her church relations with the Methodist Episcopal Church of which she formerly had been a devoted adherent; she endeavored to persuade all with whom she came in contact to accept her new faith; she talked of little but the merits of this faith; and was depressed because her daughters did not unite with her, and had no sympathy with her beliefs.
    She became acquainted with the founders of this denomination, which had its 'then principal location under the name of the Gospel Trumpet Home at Moundsville, West Virginia, to which place she had taken several trips, and was there received for rest and the treatment outlined.
    Down until 1902, her estate was very small; then her interest in her father’s farm was sold for approximately $12,000, of which $10,000 remain. Immediately thereafter, upon the receipt of portion of the purchase money, she gave to Mr. Mc-Creery, one of the leaders of this new faith, $350, without any security; he is not financially responsible, and this money is lost. She also made donations amounting to several hundred dollars to the Gospel Trumpet Home at Moundsville, West Virginia. She stated to Mrs. Foreman that she did not appreciate money, and did not know how to care for it.
    During November and December of 1902, she made many visits to the homes of the faith curists in Wilkinsburg, especially to the house of Mr. B. F. Carey, where many of the meetings were held. At this time she seems to have to a large extent separated herself from her daughters, who remained in the home at Braddock, and on or shortly after December 25, she again went to the house of Mr. Carey; there she took her bed; her oldest daughter visited her once, the youngest remained with her a few days. There her religious associates administered to her according to the tenets of their belief.
    On January 3, 1903, Miss Phillips, who was also an inmate or visitor at the Carey home, by long distance telephone, asked Mr. E. E. Byrum, president of the Gospel Trumpet Company, at Moundsville, West Virginia, to come to Wilkinsburg, .ostensibly to see Mrs. Killen; he arrived the same evening, and visited Mrs. Killen, where during that evening and also on Sunday religious services were held, rites administered and prayers offered for her. On Monday morning, January 5, Mrs. Killen directed Miss Phillips to prepare, and she executed, the two judgment notes upon which this claim is made, each being dated January 5, 1903, the one for $1,800, and the other for $2,500, payable to the Gospel Trumpet Publishing Company in two years and eighteen months, respectively, with interest.
    Miss Phillips at the same time prepared, and Mrs. Killen executed, a paper setting forth that she had on that day donated of her own free will to the Gospel Trumpet Publishing Company of Moundsville, West Virginia, the sum of $4,300, describing the notes already mentioned. This statement ends with the expression “the same is given as a free will offering to be used for the spread of the gospel and general salvation work.”
    At the same time she executed her will, wherein after bequeathing $300 to her little grandson, she divided the rest between her two daughters Clara B. Killen, and Nora E. Killen, with the proviso that “if either of my daughters die leaving no heirs the remainder of my estate to go to the Gospel Trumpet Publishing Company of Moundsville, West Virginia, to be used in the work of the gospel and general salvation work, to be used as they see fit.” The notes, letter, and will were witnessed by B. F. Carey. The notes were given to Mr. By-ram, who at once returned to Moundsville. The will and letter remained in possession of Miss Phillips.
    On January 17 or 18, 1903, Mrs. Killen returned to her home and remained until January 21, where at her request she was carried and helped to the station and left in company with Miss Phillips, who had accompanied her from the Carey home, to Moundsville, West Virginia, for further treatment. On February 11, 1903, her family were informed by Mr. Drew, a member and preacher of this organization, that he had brought their mother, and that she was lying on a cot in the railroad station; he at once returned to Moundsville. The family obtained help and conveyed the mother home. She was very much depressed, talked peculiarly; stated to her daughter that the people of Moundsville had told her that she would not be saved, that she was going to hell; but that she did not believe it.
    Within a short time after this conversation, Mrs. Killen with a revolver, whose previous whereabouts has not been explained, put a bullet through her heart, and died the next day.

      Her general appearance is described by the witnesses who saw her, as being that of one who was very nervous and depressed; she had a wild look. These witnesses, who are the members of her family, her brother and her neighbors, state that she was insane.
    On the other hand, the members of this religious organization, who became her intimates and associates during the last two years of her life, assert that in their judgment she was rational, but suffered from nervous prostration, and seemed to be ill.
    Dr. T. M. T. McKennan, an eminent specialist in nervous diseases, called by the claimant, stated that attempts at suicide raise a suspicion of insanity, and that the facts in this case as recited by the court warrant the same answer.
    After her death, the father of her grandson, who had been left $300, instituted proceedings to contest her will on the ground of insanity and undue influence, making the other two daughters respondents. An issue was awarded by the register and sent to the common pleas for trial; by agreement between the father as guardian for his son, and the daughters through their representatives, the grandchild’s share was increased, whereupon by consent a verdict was taken sustaining the will.
    THE LAW.
    The evidence discloses all the religious elements, and is very similar to that found in Taylor v. Trich, 165 Pa. ■ 586, where but for some minor errors, the Supreme Court clearly affirmed the finding that complete testamentary capacity was lacking.
    Mrs. Killen’s change of beliefs, her devotion to the new faith to the exclusion of everything else, unsettled her judgment and left her under the influence of a delusion, which usurped the place of reason. If there were nothing more in the case, it is clear that at this point she was partially insane. While prayer for and anointment of the sick is one of the most sacred injunctions and is immemorially recognized, the whole absorption of Mrs. Killen’s life in this new teaching weakened her contractual powers.
    While it may be conceded (Buchanan v. Pierie, 205 Pa. 123) that mere belief in spiritualism, faith cure or divine healing, is not of itself evidence of mental unsoundness, yet the evidence here demonstrates that the notes in question were the direct offspring of that belief, and that under the circumstances of their execution, they were the result of a delusion. The conditions controlling her unduly influenced her in the absence of relatives and impartial advisers to divert her estate from her children.
    But there is more than that; the attempts at suicide, themselves evidences of mental derangement, the progressive character of her mental illness, her hallucinations with respect to her children, her depression, her neglect of her family, her belief in imaginary diseases, her thoughts and conversations but upon one subject, viz.: divine healing, her failure to consult her brother about these dispositions, who had been her business adviser, and her absorption in the life of this new religious order, showed an increasing chronic condition of general insanity, which alone must avoid the enforcement of these obligations. The weight of the evidence confirms this conclusion with irresistible force and makes further elaboration unnecessary.
    It is earnestly contended that the verdict in the common pleas is a finding that Mrs. Killen was sane when she made her will, and that this finding must be applied to her mental condition at the time of the execution of these notes. There might be force in this proposition if after testimony taken a jury had so found; but the evidence here is that to avoid a family conflict between the nephew and his aunts, being the grandchild and children of the decedent, an amicable settlement was reached between the parties; therefore a pro forma verdict in favor of the will had to be taken.
    We must pass upon this case as presented upon the evidence before us, and we think we are justified in going behind the verdict as rendered in the common, pleas and stating the facts upon which this verdict was rendered; if this be correct, then that verdict is conclusive of nothing so far as an adjudication upon Mrs. Killen’s contractual capacity is concerned at the time of the execution of these notes.
    The claims must therefore be dismissed.

      Error assigned was the decree of the court.

      R. T. M. McCready, for appellant.

      William, Yost, for appellee.
    January 4, 1909:
   Per Curiam,

The decree is affirmed on the statement of facts and opinion of the learned judge below.


text:
    Lehner v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Runaway car — Passenger—Sudden emergency — Jumping from car.

    1. If a street railway car is running away rapidly down a dangerous grade, and a passenger has a well-grounded fear of imminent danger, he is justified in obeying the instinct of self-preservation, and in jumping from the car, if that seems to be the best method of escape.

      Negligence — Inference from fact — Measure of duty — Case for jury.

    2. Where there is a doubt as to the inference to be drawn from the facts, or where the measure of duty is ordinary and reasonable care, and the degree of care varies with the circumstances, the question of negligence is necessarily for the jury.
    3. Where a jury has the fact of a rapidly moving runaway car, and a passenger seen at one instant pushing her way through the car and out upon the platform and the next instant found lying upon the street the inference may be drawn that she had fallen in an attempt to alight from the car.
    Argued Oct. 27, 1908.
    Appeal, No. 69, Oct. T., 1908, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 391, on verdict for plaintiff in case of Emma Lehner v. Pittsburg Railways Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Brown, P. J.

      The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Craig Smith, with him Clarence Burleigh, James C. Gray and William A. Challener, for appellant,
    cited: Trout v. Turnpike Co., 216 Pa. 119; Green v. Ry. Co., 219 Pa. 241; R. R. Co. v. Schertle, 97 Pa. 450.

      J. L. Ritchey, with him David S. McCann, for appellee,
    cited: Palmer v. Warren St. Ry. Co., 206 Pa. 574; Willis v. Traction Co., 189 Pa. 430; R. R. Co. v. Aspell, 23 Pa. 147; Penna. R. R. Co. v. Lyons, 129 Pa. 113.
    January 4, 1909:
   Opinion by

Mr. Justice Potter,

It appears from the evidence in this case that on the morning of November 6, 1902, the plaintiff was a passenger upon an electric car of the defendant company. The route led up a long and rather steep and winding grade, and when near the top the car stalled and began to run backward. The motorman was unable to stop the car, and opened the front door and the gate which permitted exit by the passengers down the steps from the front platform. There was no sand in the boxes, and the conductor attempted to check the progress of the car by throwing pebbles under the wheels, but to no purpose. The car gained speed and rapidly approached a point where the tracks were closely bordered by a ravine some sixty feet in depth. The passengers became excited and apprehensive of danger, and made efforts to escape from the car, some jumping from one end, and some from the other. Miss Lehner, the plaintiff, was seen by two passengers to go to the rear or uphill end of the car, and immediately thereafter was seen lying upon the street by a passenger who was following her, but who did not see her in the act of jumping from the car. She was picked up bleeding and dirty and found to be severely injured. The flight of the car was eventually stopped by colliding with a team of horses, one of which became wedged under it.

Counsel for appellant complain of the submission of the case to the jury, and contend that there was not sufficient evidence that the negligence of the defendant was the proximate cause of the injuries to the plaintiff, and that the testimony did not show how plaintiff got from the car to the street. It is true that the plaintiff could not recall the precise manner in which she passed from the rear platform to the street; but it was shown that she as well as other passengers pressed to the rear platform, and directly afterwards she was seen lying upon the street. The obvious inference was that she jumped from the platform of the car to the ground. If the car was running away rapidly down a dangerous grade, and the plaintiff had a well-grounded fear of imminent danger, she was justified in obeying the instinct of self-preservation, and in jumping from the car, if that seemed to be the best method of escape. As our Brother Brown said, in Palmer v. Warren St. Ry. Co., 206 Pa. 574 (580): “The company had confronted her with the peril from which she would have escaped, and it is and ought to be responsible to her for whatever naturally followed. In trying to save herself she was, at the same time, unconsciously trying to save the company from the consequences of its negligence, and of her effort to do so it ought to be the last to complain, unless it is manifest that she acted rashly and imprudently. ... A well-grounded fear that a collision is abouhto take place, which will result in fatal or even serious injury to the passenger, is a justification to him to leap from the car; and the presumption of the common carrier’s negligence is not confined to the case of injuries resulting from actual collision, but extends to those caused by an effort to escape it, when made on a well-grounded belief that it will occur.” The same principle was applied in Willis v. Second Avenue Traction Co., 189 Pa. 430; and in Penna. Railroad Company v. Aspell, 23 Pa. 147.

We regard as very far fetched the objection that the testimony was not sufficiently specific in describing the manner in which the plaintiff passed from the platform to the ground, to enable the jury to reasonably infer that her injuries were the natural and proximate result of her effort to escape the effect of .defendant’s negligence. When you have given the fact of a rapidly moving car, and the plaintiff seen at one instant pushing her way through the car and out upon the platform, and the next instant found lying upon the street, it is certainly not unreasonable in the jury to draw from the circumstances the inference that she had fallen in an attempt to alight from the car. The objection that there is no evidence to support a finding is not well taken, when there is evidence from which the jury may reasonably infer the necessary fact, nor is it any objection that more than one inference may be drawn from the testimony. In the case of Cohen v. Phila., etc., Railroad Co., 211 Pa. 227, we said: "As applied to negligence cases, the rule has been stated by this court to be that where there is a doubt as to the inference to be drawn from the facts, or where the measure of duty is ordinary and reasonable care, and the degree of care required varies with the circumstances, the question of negligence is necessarily for the jury.”

The facts of this case, and the inferences to be drawn from them, were undoubtedly for the jury; and to the manner in which the casé was submitted, appellant has taken no exception.

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